Category Archives: ExpertWitness

Water Treatment

Experts Testify in Flint Water Crisis Prosecutions

Twelve people died and at least 87 others were sickened by the outbreak of a disease in Flint, Michigan during 2014 and 2015. Many doctors diagnosed their patients with Legionnaire’s disease, a noncontagious condition with symptoms similar to pneumonia.

Legionnaire’s disease is caused by bacteria that live in water. Most people acquire the disease by inhaling water droplets that contain the bacteria. Experts are attributing the disease outbreak in Flint to the city’s water supply. Other experts disagree.

Criminal prosecutions are underway against state officials responsible for municipal water quality. Prosecutors allege that the officials failed to alert the public about a Legionnaires’ outbreak in Flint and that they conducted a grossly negligent investigation of the outbreak.

Expert witnesses for both the prosecution and defense are playing a key role in preliminary examinations that are held to determine whether the evidence is sufficiently strong to justify a criminal trial. Additional experts may testify if the cases proceed to trial.

Legionnaire’s Disease in Flint

The outbreak began soon after Flint changed its water source from Lake Huron to the Flint River, a switch that produced discolored and foul-smelling tap water. Scientists concluded that the city’s water supply was contaminated by lead and other heavy metals, but that finding would not necessarily explain an outbreak of Legionnaire’s disease.

Scientists eventually focused on chlorine, which cities often add to water supplies to keep bacteria from reproducing. They discovered that Flint’s chlorine level dropped, and that Legionnaire’s disease increased, after the city changed its water supply.

Lead and heavy metals in the new water supply may have interacted with the chlorine that the city added to the river water, reducing the amount that was available to kill bacteria. The city was also faulted for failing to add corrosion-control chemicals to the water, which may have allowed lead to leach from older pipes. However, other experts contend that chlorine levels do not adequately explain the disease outbreak.

After Flint switched back to its original water source, new reports of Legionnaire’s disease returned to their normal levels. That outcome tended to confirm that the disease outbreak was caused by the new source of Flint’s water.

A report by the Michigan Department of Health and Human Services nevertheless suggests that most of the patients with the disease may have been exposed to it at McLaren Flint Hospital. The hospital responded by accusing the state of using a self-serving and unsound methodology to shift blame from state officials to the hospital.

Criminal Charges Filed

Notwithstanding the confusion about the exact cause of the Legionnaire’s disease in Flint, criminal charges were lodged against more than a dozen state officials, including the state’s Health Director and its chief Medical Officer.

The most significant charges are negligent manslaughter. Two manslaughter charges were filed against Nick Lyon, the director of the Michigan Department of Health and Human Services. Manslaughter charges were also filed against two officials of the Michigan Department of Environmental Quality (DEQ).

The manslaughter charges relate to men in Flint who allegedly died from Legionnaire’s disease. Those officials and others were also charged with willful neglect of duty and misconduct in public office.

Expert Testimony in Manslaughter Prosecution

Lyon sought dismissal of the manslaughter charges during preliminary proceedings. Expert witnesses for the prosecution and for Lyons presented competing opinions about the cause of the victims’ deaths.

Prosecutors used a number of experts to establish that the Legionnaires’ outbreak was caused by the change of Flint’s water supply to the Flint River. Prosecutors contended that the state (in a decision made by Lyon) required Flint to use the new water supply as a cost-saving measure.

The prosecution relied on the testimony of Dr. Joel Kahn, a nationally known cardiologist from Metro Detroit, to establish that the two alleged manslaughter victims died from Legionnaire’s disease. The defense challenged whether Dr. Kahn was qualified to give that testimony since his expertise is in cardiology rather than epidemiology or infectious diseases.

Dr. Jeffrey Band, an epidemiologist and infectious disease specialist at Beaumont Hospital in Royal Oak, testified that the two men did not die from Legionnaires’ disease. He acknowledged that one of the men acquired Legionnaire’s disease but maintained that the disease was treated promptly and effectively. He opined that the man died from an unrelated heart condition.

Dr. Kahn, however, testified that Legionnaire’s disease was the triggering cause of the man’s death. Dr. Kahn also opined that the other man died of Legionnaire’s disease and pneumonia “rather rapidly” after exposure to the disease. Dr. Kahn testified that Legionnaire’s disease was the only cause of that man’s death.

The judge presiding over the preliminary examination recently decided that the evidence was sufficient to permit the case to proceed to trial. Questions about the qualifications of experts are likely to arise again in pretrial Daubert motions. Additional medical experts may be needed to satisfy the prosecution’s burden of proving causation.

Expert Testimony in Misconduct Prosecutions

Proceedings are also underway in criminal charges of misconduct in public office filed against DEQ officials Stephen Busch, Michael Prysby, Patrick Cook, and Shekter Smith. Smith and Cook are also facing manslaughter charges.

The prosecution alleges that the officials neglected their responsibility to oversee Flint’s water source switch and to warn the public about water quality issues. The failure to implement anti-corrosion controls allegedly resulted in high levels of lead that were hidden from the public.

During a preliminary hearing, U.S. Environmental Protection Agency water expert Miguel Del Toral testified that the DEQ knew that Flint was not treating its water with anti-corrosion controls but took no action to assure the safety of the water supply. He also testified that Flint’s water treatment was not meeting federal standards and faulted the state for mandating the change of the city’s water supply without assuring that corrosion controls would be implemented.

Del Toral testified that he found high lead levels in the water in one Flint home after Busch told the homeowner that the problem was caused by her lead pipes, not by the city’s water supply. Del Toral discovered that the home had plastic pipes and could not have contributed to lead contamination. According to Del Toral, Busch’s response was misleading and underplayed the significance of the problem.

The preliminary hearing against the four defendants is scheduled to resume in September.

Delaware

Delaware Supreme Court Rules that Trial Judge Misinterpreted Expert Testimony Precedent

The Delaware Supreme Court has ruled that a trial court improperly excluded expert testimony and has revived medical negligence claims against a doctor and a women’s health clinic.

The Lawsuit

In October 2013, Amanda Norman had a laparoscopy performed by Dr. Christine Maynard at the All About Women health clinic.  In this diagnostic procedure, a doctor examines a woman’s reproductive organs. According to court documents, there were no reports of complications, but Norman experienced pain immediately following the procedure.

Norman went to the emergency room for treatment and found that her bladder had been ruptured.  The rupture was attributed to the diagnostic laparoscopy.

Norman filed a medical negligence suit against Dr. Maynard and All About Women.  Maynard and All About Women have denied the allegations of negligence and said that a ruptured bladder is a known complication of that procedure.

Medical Expert Testimony

Norman retained Dr. Jeffrey Soffer, M.D. as a medical expert to testify on how Dr. Maynard breached the standard of care.  Dr. Soffer is a board certified obstetrician and gynecologist who serves as an attending physician at the Department of Obstetrics and Gynecology at Overlook Hospital in Summit, New Jersey.  Dr. Soffer has performed hundreds of laparoscopies throughout his career.

Dr. Soffer opined that Dr. Maynard provided substandard care during Norman’s procedure. He said, “it is incumbent on the operating surgeon to be always aware of the exact anatomic position of adjacent structures in order to avoid inadvertent injury. The bladder . . . [would have been] in plain view.”  Dr. Soffer said that a ruptured bladder “represents careless and sloppy surgical technique.”

Dr. Maynard and All About Women filed a motion to exclude Dr. Soffer’s opinions because they lacked the reliability to pass the standard set by  Daubert v. Merrell Dow Pharmaceuticals, Inc. and Delaware case law.  The Superior Court agreed, noting that Norman failed to meet her burden because she did not present evidence that Dr. Soffer’s opinion was “based on information reasonably relied upon by experts in the field.”

Delaware Supreme Court Ruling

Delaware case law that was developed based upon Daubert states that an expert qualifies if:

  1. The witness is qualified as an expert by knowledge, skill, experience,
    training or education
  2. The evidence is relevant
  3. The expert’s opinion is based upon information reasonably relied upon by experts in
    the particular field
  4. The expert will assist the trier of fact to understand the evidence or to determine a fact in issue
  5. The expert testimony will not create unfair prejudice or confuse or mislead
    the jury

Here, the Superior Court felt that the third factor “the expert’s opinion is based upon information reasonably relied upon by experts in the particular field” requires an expert’s opinion to be based on medical literature or other peer reviewed publication.

The Delaware Supreme Court reversed the Superior Court’s ruling.  The court noted that an expert may qualify by skill, experience, knowledge, training, or education and that a medical negligence expert must be “familiar with the degree of skill ordinarily employed in the field of medicine on which her or she will testify” to give a standard of care opinion.

The Delaware Supreme Court stated that Dr. Soffer’s testimony, when considered as a whole, was sufficient to establish the standards of care, Dr. Maynard’s deviations from those standards, and the injury that those deviations cased to Norman. This decision returned the case to Superior Court for further proceedings.

Gun

Expert Witness Testifies that Officer Used Excessive Force in Teen’s Death

An expert in use of police force has testified that a former Balch Springs officer used excessive force when he shot and killed a 15-year-old teen.

The Shooting

On April 29, 2017, police officers responded to a house party in Balch Springs, Texas, that was attended by high school aged teens.  Officer Roy Oliver said that he was inside the house when he heard gunshots fired outside the residence.

When Oliver got outside, he saw his partner, Officer Tyler Gross, pointing his gun at a car and ordering it to stop.  Oliver said that he thought that Gross was in danger and that he saw the car moving toward him.  Oliver said that he saw the silhouette of the person in the passenger seat of the vehicle move and that he thought his partner had found the shooter or information about the gunfire.

Officer Oliver opened fire on the car.  Oliver would later testify, “(The car) came forward towards my partner and I had to make a decision this car is about to hit my partner, there are threats inside this car…I had no other option but to use lethal force. … A car is a deadly weapon.” Oliver’s partner would testify that he did not fear for his life and felt no need to shoot.

Oliver’s shots struck 15-year-old Jordan Edwards in the head and killed him. Jordan had been sitting in the front passenger seat.  His two brothers and two friends were also in the vehicle.

Oliver was fired and charged with murder and four counts of aggravated assault by a public servant as a result of the incident.

Expert Witness Testimony

At trial, the prosecution called FBI Supervisory Agent Dr. Philip Hayden to testify as its use of force expert.  Hayden has worked as as a Supervisory Special Agent for the FBI since the early 1970s. Hayden is a well-known expert witness who specializes in police use of force, arrest procedures, and tactical training.

Hayden testified that Oliver used excessive force in shooting Edwards.  Hayden said, “There’s no way at that point in time when the window was broken that he could say, ‘I looked over and saw that he was in danger…There was no threat to Officer Gross at any time. He says so.”

Hayden also testified that Oliver’s shooting into a moving car could have turned out much worse.  Prosecutor Mike Snipes asked Hayden, “It could have not only shot Jordan Edwards, but he could have shot Maximus Edwards, Von Edwards, Maxwell Edwards and the driver of the car, Vidal Allen?”  Hayden responded, “I think it’s only by the grace of God that he didn’t get hit.”

Hayden also told jurors that he didn’t see why Oliver felt he had to fire his gun at all.  He said, “I believe there’s enough data here to say what happened is Officer Oliver did not have a reasonable belief to use deadly force, and he should not have used deadly force.”

Fake

District Attorney’s Expert Witness Lied About Degree

The San Luis Obispo County District Attorney’s office has notified defense attorneys in their area that one of their expert witnesses lied on her resume about earning a college degree.

False Testimony About Background

Tracy Nix is a staff member of the San Luis Obispo District Attorney’s office that has testified in court and written in her resume that she has a bachelor’s degree from Cal Poly.

In 2014, the District Attorney’s Office presented Nix as an expert witness in a sexual abuse case.  Deputy District Attorney Kelly Mandeino asked Judge Jacquelyn H. Duffy to declare Nix an expert.  Manderino presented Nix’s resume and asked Nix to testify about her qualifications.

Manderino asked Nix, “Do you have a bachelor’s degree?”  Nix testified, “I have.  I do.”  Manderino then asked, “And is that from Cal Poly?”  Nix testified, “It is.”  However, Nix’s Cal Poly profile shows that Nix never graduated.

Nix also testified that she had taught an advanced psychology class at Cal Poly every quarter for five years for Connie Hanretty-Church, a lecturer in the Psychology and Child Development Department. Church wrote in an email, “Tracy was a guest speaker several years ago (2014) when I taught an upper division course entitled, “Child Abuse and Neglect…She was a regular guest speaker for several years, can’t recall if it two or three years.”

“Expert” Testimony

Nix gave testimony in a case that resulted in the conviction of Ronald Cowan for sodomy, oral copulation, and lewd acts with a child.  Cowan was sentenced to 65 years to life in prison.  Cowan’s conviction was later reversed on appeal due to prosecutorial misconduct.  The prosecutorial misconduct was unrelated to Nix’s testimony.

Perjury Investigation

Dow has previously said that Nix did not commit perjury because “she believed she had a degree” because she had participated in the Cal Poly commencement ceremony.  Dow said, “It is common at Cal Poly for people to believe they have graduated when they have not.”  Cal Poly students who have not graduated are allowed to participate in commencement ceremonies if they agree to finishing their degree within two quarters.

Dow also hired an investigator to determine whether Nix had committed perjury.

Responsibility to Notify About False Testimony

Despite the fact that Dow has determined that Nix has not perjured herself, he has begun to notify defense attorneys of her false testimony.  A 1959 U.S. Supreme Court case, Napue v. Illinois, requires prosecutors to correct the testimony of witnesses they know to be false.  The failure to do so would deny due process of law in violation of the Fourteenth Amendment.

Dow has said that his office is actively taking steps to notify the defendant’s attorneys in cases where Nix testified as an expert witness of the fact that Nix did not receive a bachelor’s degree.  Dow said, “It will be up to each defendant and their counsel to decide whether it is a significant enough issue in their individual case to warrant filing of a motion with the court.”

Gavel and Stethoscope on Reflective Table

Indiana Court Upholds Refusal to Allow Witness in Med Mal Trial

The Indiana Court of Appeals has affirmed a jury verdict in favor for a doctor who was sued for malpractice and ruled that the trial court did not err in limiting the plaintiff’s evidence.

Death of Patient

On October 21, 2009, 19-year-old Jay Shaw died from cardiac arrest during a cystoscopy and stent replacement procedure.  Shaw had previously received a kidney transplant.  Shaw underwent the procedure with his transplanted kidney while diagnosed with pneumonia and acute renal failure.

Medical Malpractice Lawsuit

In October 2011, Shaw’s father, James Shaw, filed a medical malpractice action against Dr. Chandra Sundaram and others with the Indiana Department of Insurance.  A Medical Review Panel found in favor of Dr. Sundaram and the other defendants.

In November 2013, Shaw filed a negligence action against Sundaram on behalf of his son’s estate.

During the discovery process, Shaw’s counsel failed to provide the court with timely information about his expert witnesses.  The trial court had required Shaw to file all expert disclosures no later than 120 days before trial.  Prior to the September 2015 deadline, Shaw had identified two experts by name only and requested an extension of time to provide additional experts.  On the date of the new deadline, Shaw provided an additional disclosure, stating that “[i]t is anticipated that Joye Carter, M.D. will testify as to cause of death[.]”

In September 2016, Shaw served a supplemental final witness list, including Dr. Allen Griggs for the first time.  Dr. Sundaram’s counsel objected to the addition of Dr. Griggs and asked if Shaw intended to use Dr. Griggs at trial to inform him immediately.

In February 2017, Shaw served supplemental answers to interrogatories, including the death opinions of Dr. Griggs for the first time.  Shaw moved the court to permit him to substitute Dr. Griggs for Dr. Carter because he had experienced difficulty contacting Dr. Carter after her out-of-state move.

The trial court denied Shaw’s motion and barred Dr. Griggs from testifying.  The court said that it would be “highly prejudicial” to permit the substitute of an expert witness just 47 days before a two week jury trial.  When Shaw requested to call Dr. Griggs as a witness at trial, the trial court denied it again.

The jury returned a verdict in favor of Dr. Sundaram.

Indiana Court of Appeals

Shaw appealed the trial court’s ruling, arguing that it had erred by denying his request to substitute Dr. Griggs for another expert witness and by denying his request to call Griggs as a rebuttal witness at trial.

The Indiana Court of Appeals ruled that the trial court had acted within its discretion to deny Shaw’s request for Griggs to be called as an expert witness. The court noted that there was a lengthy history of discovery violations and a failure to timely identify Griggs and his opinions.  The court also stated, “We also note that even if we had found the decision erroneous, we would have no way of determining whether the error was reversible or not as Shaw did not make an offer of proof regarding what Dr. Griggs’s testimony would have been; consequently, we could not evaluate its probable impact on the jury.”

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Gang Expert Testifies in Lake Boyz Trial

An expert on gangs and threat assessments has testified in the trial of four men accused of being members of the Lake Boyz gang in Fort Myers, Florida.

The Arrest

The four men who are currently on trial are James Brown, 23, Kwameaine Brown, 25, Diante Davis, 21, and Eric Fletcher, 30.  The men were arrested in January 2017, following a two-year investigation by the Fort Myers Police Department and the State Attorney’s Office into the activities of the Lake Boyz gang.  The police allege that the Lake Boyz gang operates in the Harlem Lakes subdivision of Fort Myers.

Brown, Brown, and Davis were arrested during a roundup.  Fletcher was charged while serving a 30-year prison sentence for robbery. They are the first of 23 men who are scheduled to face a jury for their alleged involvement with the Lake Boyz. When the arrests took place, Fort Myers Police Chief Derrick Diggs said that “This group has targeted the Harlem Lakes community for years…We hope this initiative will give the Harlem Lakes community some peace.”

Florida State Attorney Steve Russell charged all of the alleged Lake Boyz members under the RICO Act (Racketeer Influenced and Corrupt Organizations Act).  The RICO Act is a federal law that was enacted to provide for extended criminal penalties and civil causes of action for acts that were performed as part of an ongoing criminal organization.

State’s Expert Witnesses

The state retained Ben Pieper, a senior investigator for the Bradenton Police Department’s gang unit, to testify as an expert on gangs.  Pieper is also the co-owner and instructor for a consulting group that specializes in threat and gang assessments, All is One International.  Pieper provided testimony about the history of gangs and how they work. Pieper testified about the gangs of New York, the Bloods and the Crips, and the lower hybrid gangs, that have “morphed into local neighborhood groups.”

Attorneys for the defendants objected repeatedly to Pieper’s testimony.  The four defense attorneys used their cross-examination to show that Pieper did not know anything about this case or the Lake Boyz. Under cross-examination, Pieper revealed that he had been paid $8,000 for his involvement in the trial, but he had not looked at or read any of the discovery in the case.  Davis’ attorney, K.J. Myllynen said, “So, after $8,000-plus dollars spent by this county you have no testimony to tell us about the defendants in this case.”  Pieper replied, “Yes, sir, correct.”

One of the prosecutors, Bob Lee, explained that the state’s attorney’s office did not ask Pieper to review the case because that would be handled by the local detectives.  Fort Myers police Detective Wolfgang Daniel was the lead investigator on the case and testified about the different ways that the police identified the gang members. Daniels testified that “a documented reliable informant” named James Brown, Kwameaine Brown, and Diante Davis as gang members and that Fletcher was seen in the company of other gang members, using gang signs.  Daniels also explained about the police department’s use of social media, surveillance, and confidential informants to investigate the Lake Boyz.

Locker Room

Court Limits Expert’s Testimony About Gender Equity in Student Athletic Programs

Several members of women’s tennis and skiing teams at Minnesota’s St. Cloud State University began a class action lawsuit, alleging that the University’s decision to eliminate those sports violated Title IX’s prohibition against sex discrimination in educational institutions. The University moved to exclude the expert testimony from Dr. Donna Lopiano on behalf of the plaintiffs. The court’s ruling limited Dr. Lopiano’s testimony on legal issues while permitting her to express non-legal expert opinions.

Background

St. Cloud State University’s enrollment declined significantly between its 2011 peak and 2016. The University’s administration asked the Athletic Department to devise a cost containment strategy. The proposed strategy eliminated six sports: men’s tennis, women’s tennis, men’s cross country, men’s indoor track, men’s outdoor track, and women’s Nordic skiing.

The plaintiffs contend that the plan ignored Title IX’s demand that male and female students be given equal athletic opportunities. They contend that the plan worsens an existing disparity between opportunities offered to male and female student athletes. To achieve equality, the plaintiffs contend that the University has two choices: it can further reduce the availability of athletic participation to male students or increase athletic opportunities for female students.

The University argues that it would lose its Division I NCAA membership if it equalized athletic opportunities by reducing opportunities for male students. The University’s male and female ice hockey teams compete at a Division I level. The University also argues that it lacks the funds to equalize opportunities by increasing the number of athletic programs available to women.

The court entered a preliminary injunction enjoining the University from eliminating its women’s tennis team. In granting that injunction, the court determined that the lawsuit had substantial merit and that the plaintiffs are likely to prevail.

Expert Testimony Regarding Legal Standards

The plaintiffs seek to support their claims with the expert testimony of Dr. Donna Lopiano. Dr. Lopiano has a Ph.D. in physical education, operates a company that helps educational institutions solve challenges in their athletic programs, and has served as a gender equity consultant for the Office of Civil Rights in the former Department of Health, Education, and Welfare. The University objected to her proposed testimony.

The court agreed that Dr. Lopiano cannot testify about the legal requirements imposed by Title IX and cannot opine whether the University met those requirements. The court held that “Dr. Lopiano may not testify regarding the requirements of law because it would give the jury the appearance that the Court is shifting to Dr. Lopiano the responsibility to decide the case.” Explaining the law is the judge’s job, not the expert’s.

Notwithstanding the federal rule that an expert opinion “is not objectionable just because it embraces an ultimate issue,” the court followed the Eighth Circuit’s holding that an expert cannot opine “whether federal law was contravened.” Dr. Lopiano was accordingly prohibited from testifying about the requirements of Title IX or whether SCSU has complied with those requirements.

Expert Testimony About Practices that Avoid Discrimination

On the other hand, the court permitted Dr. Lopiano to testify about the history and purposes of Title IX and about the steps other educational institutions have taken to comply with its mandates. While Dr. Lopiano must walk a fine line by explaining how institutions comply with the law without explaining the law, the court concluded that her testimony about educational practices, which is largely statistical in nature, represents a non-legal (and therefore admissible) expert opinion.

The court also agreed that Dr. Lopiano can testify about the University’s history of responding, or failing to respond, to the interests and abilities of female student-athletes (for example, by failing to add women’s sports that students had informally requested). She can also testify about the underrepresentation of female student athletes and the University’s longstanding failure to address underrepresentation by expanding athletic opportunities for women.

Expert Testimony About Financial Aid

Title IX regulations prohibit sex discrimination in financial aid awards, including those that are athletic-based. The regulations require universities to make a mathematical calculation about the financial aid awarded to male and female students and to eliminate disparities that are not explained by legitimate, nondiscriminatory factors.

The University moved to exclude Dr. Lopiano’s testimony about the mathematical calculation because she is not a mathematician. Alternatively, the University asked for her testimony to be excluded because the calculation is so simple that it requires no expert testimony.

The court, however, determined that Dr. Lopiano’s proposed testimony goes beyond the calculation by discussing the legitimate, nondiscriminatory factors that may or may not explain disparities in the allocation of athletic-based financial aid. As part of that testimony, she can discuss an admittedly simple calculation because all experts are entitled to testify about “basic math” that involves “simple deductive reasoning,” particularly when they have experience making such calculations.

Expert Testimony About Gender Equity in Athletic Benefits

To decide whether an educational institution is providing equal benefits and opportunities to student athletes of both sexes, the Office of Civil Rights examines a laundry list of factors that might differentiate the treatment of male and female students. Dr. Lopiano proposed to undertake that examination to demonstrate that the University failed to provide equal benefits to student-athletes of different sexes.

Dr. Lopiano based her opinions on interviews with a former Director of Athletics and a former Associate Director of Athletics, both of whom recently retired. For example, she asked them to rate facilities as “Superior, Adequate, or Inadequate.” She then compared the number of male students to the number of female students who were given Superior facilities, and so on. She did not independently verify those ratings.

The University objected that Dr. Lopiano based her opinions on hearsay, but experts are entitled to base opinions on inadmissible hearsay of a type reasonably relied upon by experts in a particular field. Dr. Lopiano was following a method she derived from the Athletic Director’s Desk Reference and that she routinely used in her private consulting practice. The court was satisfied that she relied on the kind of data that experts in her field would routinely use to form opinions about gender equity in athletic programs.

The hearsay opinions of the former employees, however, did not address current conditions at the University. The court therefore barred Dr. Lopiano from presenting those opinions to the jury, while allowing her to testify about her conclusion that the University did not provide equal benefits to student-athletes of different sexes under the “laundry list.”

ISIS

Clinical Psychiatrist Questions Autism Diagnosis in ISIS Vandalism Trial

A clinical psychiatrist has testified that the behavior of a teen on trial for vandalizing a school with ISIS-themed graffiti and an attempted bombing is not consistent with his autism diagnosis.

The Vandalism and Attempted Bombing Incidents

On February 15, 2018, a Hurricane High School in St. George, Utah was vandalized with pro-Islamic Style Graffiti reading “ISIS is comi-.” The school’s U.S. flag was replaced with an ISIS flag.

A few weeks later, on March 5, an improvised bomb was left in the lunchroom of the nearby Pine View High School. The principal identified one 16-year-old student as a potential suspect.

The Investigation

Detective Brandon Dunbar, a police officer who responded to the Pine Valley High School, interviewed the suspect. During the interview, the teen admitted that he was responsible for the improvised incendiary device and for the vandalism incident that had occurred at Hurricane High School in February.

The teen told the interviewers that he had brought a backpack to school with matches, a can, canning lids, pellets, bottles of gasoline, and other items. He also admitted to striking the match. The teen said that he had intended “to cause some fear” in people and that he had been planning to bring the backpack to school for several weeks.

The teen said that he thought “it was pretty cool” to see the bomb squad arrive. He said, “I’ve been looking at ISIS stuff, so I wanted to see what would happen and what people would think.” He continued, “I don’t see death as anything bad.  I see it as a new way of life… I expected the thing to go off.”

Because the police viewed the backpack as a weapon of mass destruction, the FBI was called in to investigate. Special Agent Chris Anderson said that the teenager’s laptop and cell phone were taken by the FBI for review. The teen’s phone showed that he had searched terms like “bomb,” “fuse,” “ISIS,” and “How do westerners become recruited to ISIS.”

Autism Diagnosis Controversy

The teen has been charged with felony counts of attempted murder and use of a weapon of mass destruction and misdemeanor counts of graffiti and abuse of a flag.  he teen is currently in proceedings to determine whether he should be tried as a juvenile or as an adult.

A forensic psychologist who interviewed the teen testified that he had diagnosed him with level 1 autism spectrum disorder and that he had below-average IQ and difficulty associating with others.

The state brought in Gregory Saatoff, a high-profile clinical psychiatrist and a longtime consultant with the FBI to challenge that diagnosis. Saatoff testified that the autism diagnosis and perceived intellectual limitations don’t make sense given the crimes that he had been charged with. Saatoff said that the crimes would require meticulous planning and duplicitous behavior. Saatoff said that he also noted that the boy’s generally good grades, strong family support system, and lack of problems did not fit in with the diagnosis.

Saatoff said that none of the teen’s actions matched the general tendencies of someone with autism spectrum disorder. He noted that the boy’s internet history and responses to interviews suggested that he was very cognizant of the way that the initial incident had been received and that he was trying to “leverage” the attention around the school shooting in Parkland, Florida to create fear in the second incident.

The judge has given no indication of when he will rule on the request to try the student as an adult.

Rhode Island

Court Tosses $5.7M Award For Lack of Expert Testimony

The Rhode Island Supreme Court has thrown out a $5.7 million jury trial award for the agency that runs the Central Landfill in Johnston for a lack of supporting expert witness testimony.

The Dispute

In 2007, Michael OConnell became the Executive Director of the Rhode Island Resource Recovery Corporation. He soon found that its accounting firm, Restivo Monacelli L.L.P., had missed numerous issues in its audits. He testified, “I came in in six months and I was tripping over issues; I couldn’t help it, they were everywhere…. And they found nothing.”

One problem was that Resource Recovery trusts were invested in violation of agency policies. OConnell found out that one of the landfill’s commissioners was also serving as a paid board member of the company that managed its trusts.

OConnell let the governor know about the problems he had found and a full forensic audit was conducted. The audit revealed that the agency’s employees, vendors, and commissioners had been compromising their ethical obligations to the agency and the public.

The Trial

The Rhode Island Resource Recovery Corporation sued Restivo Monacelli L.L.P for professional malpractice, breach of contract, civil conspiracy, aiding and abetting breaches of fiduciary duty by Resource Recovery commissioners, managers, and employees, and knowingly submitting false, erroneous, or incomplete documents or statements to public officials with the intent of misleading the state. It claimed that the accounting firm it had hired to watch its books failed to identify issues such as:

  • $10,000 annually for golf junkets,
  • improper charitable contributions,
  • overpaying for real estate, and
  • major trust fund losses.

Restivo disputed the claims of negligence and malpractice and said that the damages were primarily caused by the agency itself.  Edmund Restivo, a managing partner in Restivo, said, “We prepared our audit according to generally accepted auditing standards and the corporation signed off on our auditing report at the end of the audit and took responsibility for it… .We do very good work and stand by our record as to what we do.”

At trial, a jury awarded Rhode Island Resource Recovery Corporation $5.7 million. Restivo appealed the award to the Rhode Island Supreme Court. On appeal, the court focused on causation, or whether or not the malpractice claimed in the lawsuit led to the awarded damages. Resource Recovery argued that it didn’t need an expert to explain how Restivo’s malpractice hurt them financially. Resource Recovery argued that a jury could have found that if Restivo did its job, Resource Recovery’s bad actors would have stopped sooner. The court ultimately ruled that Resource Recovery should have provided expert testimony to show how any accounting malpractice by Restivo actually caused the agency to lose money.

Lauren Jones, an attorney for Restivo, said that her client was pleased with the outcome. She said, “We had high hopes it would turn out this way…. We’re glad the court saw it as we thought it should be seen.”

New Trial for Woman Whose Lawyer Failed to Call Battered Spouse Expert

The Louisiana Supreme Court has ordered a new trial for a woman who was sentenced to life in prison for murder of her husband.

Renaldo Curley’s Death

In March 2005, Catina Curley shot and killed her husband of 10 years, Renaldo Curley, at their home in New Orleans. Curley told police that she had been trying to flee her house during an argument because she feared her husband would beat her. Curley told authorities that she grabbed a revolver and it went off accidentally as she was pointing it at the ground. Curley said that the bullet ricocheted into her husband’s chest.

Curley was charged with second-degree murder in connection with the shooting. Curley’s original attorney, Lon Burns, had her plead not guilty at her arraignment on August 9, 2005. Ten days later, Burns had the plea withdrawn and entered a new plea of not guilty by reason of insanity. Attorney John Fuller replaced Burns as Curley’s attorney in September 2006. On February 26, 2007, Fuller made a motion to drop the insanity plea.

At trial, two of Curley’s children testified that they had lost count of the number of times that they had seen Renaldo beat their mother. Curley’s boss also testified about how frequently Curley would call in sick after her husband had beaten her. A coroner’s expert testified that the gun was pointed straight at Renaldo’s chest when it went off. Curley’s attorney never called an expert on battered women syndrome to testify at trial. Curley was found guilty on a 11-1 vote and sentenced to life in prison for the murder of her husband.

Reversed Conviction

Orleans Parish Criminal District Court Judge Arthur Hunter overturned the verdict against Curley the same month that she was convicted, but the 4th Circuit Court of Appeal later reversed him. Curley retained new counsel for her appeal to the Louisiana Supreme Court.

Curley’s new attorneys, Paul Barker and Christen DeNicholas argued, “What goes through a domestic violence victim’s head when faced with recurring acts of violence is not necessarily what would go through any of our own heads when we are faced with one isolated incident… Retreat then becomes a very subjective aspect.”

At a post-conviction hearing, Fuller explained his reasoning for the decisions that he made when he defended Curley. He said, “At that point in my practice, the thinking was that we would just argue straight for a justifiable homicide (verdict), and we didn’t really take into account, relative to a not guilty by reason of insanity (plea), the opportunity to present a battered spouse expert.”

The Louisiana Supreme Court decided that Curley lacked effective assistance at trial, reversing her conviction and calling for a new trial. According to the Louisiana Supreme Court, Fuller mistakenly believed that he was barred from introducing expert testimony on battered women syndrome because Curley’s plea of not guilty by reason of insanity had been withdrawn. Fuller has since admitted that he should have called a battered spouse expert. He said, “I would say ignorance was one of the issues…, Obviously, I should have talked to or at least conferred with a battered spouse expert, but we didn’t do that.”