Category Archives: ExpertWitness

Skinny Horse

Forensic Entomologist Testifies In Animal Cruelty Trial

A forensic entomologist has been called to testify in an aggravated animal cruelty trial in Orange County, New York.

Animal Abuse

On July 29, the Hudson Valley Society for the Prevention of Cruelty to Animals and the Town of Goshen conducted a raid on a Goshen farm in response to a complaint. They found the remains of 10 horses and one severely undernourished stallion.  The investigators also found 10 live horses that were of normal weight, but had hooves in terrible condition.  The Hudson Valley SPCA’s chief of humane law enforcement, Gene Hecht, said that it was “without a doubt” that the horses found on the property had died of starvation because there “wasn’t a drop of feed” on the property and the only hay they found was moldy and inedible.

The surviving malnourished horse, Seamus, was taken to Pony Tails Rescue in Honesdale, Pennsylvania.  Lorie Brinkworth, a 25-year horse trainer and racetrack assistant veterinarian from Pony Tails Rescue described Seamus’ condition. She said, “His backbone was sticking up with protruding hip bones and rib cage clearly visible.”  Brinkworth said that Seamus’ teeth were dark and discolored and his molars had sharp edges that prevented him from eating.  Brinkworth said that Seamus’ breath smelled of manure and he actually ate his own manure for three weeks after arriving at the rescue.

The owner of the Goshen farm, Jeanne Ryan, is facing felony charges in connection with starving her horses to death.  Prosecutors claim that Ryan kept her horses confined without enough food and water. Ryan faces 10 counts of felony aggravated animal cruelty and 10 misdemeanor cruelty.  Ryan is a former NYPD officer.  She faces up to one year in jail.

The Trial

Ryan’s attorney, Michael Sussman, argues that Ryan’s son, James McSwigin, had agreed to care for the horses, but had failed to do so.  McSwigin acknowledged that he received multiple texts from his mother in February 2017 that told him to give the horses food and water.  James McSwigin’s fiance, Erika Pohja, testified that McSwigin let his mother know that the horses were getting skinny, but Ryan told him that she could make the hay stretch and sell some of the horses.

The prosecution called Dr. Jennifer Rosati, a forensic entomologist, to testify at trial. Dr. Rosati examined the insects that were found near and on the horse carcasses.  Rosati testified that she found pupal casings from three different species of blowflies in one of the barn stalls.  Pupal casings are what is left behind when developed larvae become flies. Rosati took into account the life cycles of blowflies, weather conditions, seasons, and the advanced state of decay of the horses to determine that the blowflies laid their eggs between April 26, 2017 and June 10, 2017.  Rosati was also able to determine that one of the horses died wearing a bridle.

Under questioning by prosecution, Rosati confirmed that the evidence that she found was consistent with the horses dying in late 2016 and being left in the barn. On cross-examination, Rosati stated that the horses could have also died as late as March 2017.

Election Experts Testify in Virginia Voter ID Case

Mourning Expert Testifies Regarding Removal of Civil War Statues

Litigants who oppose the removal, or even the covering with tarps, of statues in Charlottesville, VA commemorating Confederate generals presented an expert in mourning to strengthen their claim that the city council was required to unveil the statues. The city council covered the statues as the city (or at least some of its residents) mourned the deaths that resulted from a clash between White Nationalists and protestors against racism.

Civil War Statues in Charlottesville

A statue of Robert E. Lee astride a horse stands at the highest point of a Charlottesville park. The parkland was donated to the city in 1917. At that time, the city named the park Robert E. Lee Park. The same donor gave additional parkland to the city in 1919. That park features a statue of Stonewall Jackson, and the park was named Jackson Park.

In February 2017, the city council renamed the parks Emancipation Park and Justice Park in recognition that honoring Civil War generals who fought to preserve slavery is offensive to people of all races who cherish the American values of freedom and equality. The council debated removing the statues, but were concerned that the removal was prohibited by state law and would violate the terms under which the land was donated to the city.

City leaders voted 3-2 to remove the statues, but they were left in place pending the resolution of legal issues. In August 2017, however, the council voted to cover the statues with tarps in response to the alleged murder of Heather Heyer by a white supremacist at a Unite the Right Rally. The rally was motivated in part by the city’s decision to remove the statues. The city announced that it was mourning Heyer’s death, as well as the deaths of a Virginia State Police lieutenant and a trooper-pilot at the divisive rally.

Mourning Expert

A number of individuals, including descendants of the statues’ donor, as well as the Monument Fund and the Sons of Confederate Veterans, sued the city to prevent it from implementing its vote to remove the statues. The lawsuit includes a claim for damages, although it is difficult to understand why removing the statues would be any more harmful to individuals in the community than leaving them in place.

After the city covered the statues, the plaintiffs in that lawsuit asked the judge to order the tarps removed, contending that the mourning period was a “pretext” to cover the statues indefinitely in lieu of taking the potentially unlawful action of removing them. The plaintiffs pointed to a city council resolution to find a more elegant way to screen the statues from public view. The plaintiffs’ attorney persistently but inaccurately characterized the plastic tarps that cover the statues as “trash bags.”

In support of their claim, the plaintiffs called a funeral director as an expert witness on the subject of mourning. The court allowed the witness to testify over objection that he had no expertise in a community’s collective mourning in the aftermath of a traumatic event.

The plaintiffs wanted to establish that mourning periods never last for five months, and that the continued covering of the statues was therefore not consistent with a mourning period. The plaintiffs asked the expert witness, John Mathis, about religious mourning practices. The judge ruled that the proposed testimony was irrelevant, presumably because the city council is prohibited by the Constitution from engaging in a religious practice.

Mathis testified about “public mourning practices for deceased police officers or firefighters: mourning badges, bunting, flags at half mast, wreaths and processions.” When the city’s attorney asked Mathis about the significance of a one year death anniversary, Mathis testified that it is significant to family members but not to people who attend a funeral. That might come as a surprise to American citizens who mourn the deaths of President Kennedy and Martin Luther King, Jr. on each anniversary of their deaths.

Court’s Decision

After taking some time to consider the evidence, the judge ruled that the tarps must be removed. The court based its ruling on its perception that the city intended to cover the statutes permanently, which “interferes with” viewing the statues in violation of state law.

According to the judge, “it is not a matter of the ‘mourning’ having gone on too long.” Rather, the city’s failure to set a firm date for removing the tarps constituted a failure to prove that the coverings would not be “anything other than permanent.”

At some point, the court will need to decide the merits of the lawsuit, including the city’s claim that the state statute does not apply to statues erected before the statute’s effective date. The court’s ruling on the motion to remove the tarp may signal its belief that the statute applies and that state law will force Charlottesville to continue to commemorate Civil War generals who fought against the emancipation of slaves.

Police

Lethal Force Expert Testifies Police Acted Reasonably in Shooting

An expert on police training and lethal force has testified that two police officers acted reasonably during a 2013 shooting of a mentally ill man in Charlotte, North Carolina.

The Shooting

According to testimony, in January 2013, 55-year-old Spencer Mims III was uncharacteristically upset about the loss of his favorite football team in the NFL playoffs. His father, Spencer Mims Jr., 82, left the home to give him time to cool off. While he was out, Mims Jr. saw a police officer and asked him for help. When the police arrived at the house, Mims was sitting on the porch holding a box-cutter to his neck. Officer Michael Whitlock used a Taser to attempt to subdue Mims, which caused him to yell in pain and come towards Officer Jeremy Donaldson with the box-cutter. Officer Donaldson told Mims to drop the knife, but he did not. Officer Donaldson shot Mims three times, which resulted in his death.

The Mecklenburg County District Attorney cleared Officers Donaldson and Whitlock of any criminal wrongdoing in relation to the shooting.

The Lawsuit

The Mims family filed a wrongful death suit against the city of Charlotte, alleging that the use of deadly force against a person having a mental breakdown was excessive and unnecessary. The lawsuit claims that Mims never threatened the officers and that Mims was turning away from the officer when shots were fired.

Ken Wallentine, special agent for the Utah attorney general and expert on police training and lethal force, testified as an expert witness for the police. Wallentine testified that the officers acted appropriately during their confrontation with Mims.  Wallentine opined that Officers Jeremy Donaldson and Michael Whitlock’s actions were “what we expect from well-trained officers.” He testified that neither officer had been overly aggressive with Mims and said that they could not have stayed away from Mims because they were dealing with an unstable man carrying a deadly weapon.

Attorney for the Mims family, Luke Largess, questioned Wallentine’s understanding of the evidence.  Largess picked apart Wallentine’s grasp of the facts and sequence of events and pointed out that Wallentine had been paid $7,000 to testify. Largess noted that Wallentine rarely testified on behalf of a civilian against the police and claimed that Wallentine did not seem to know the best police practices in dealing with a mentally ill person in a crisis.

During Wallentine’s cross-examination, Largess pointed out that officers are taught not to escalate tensions by acting aggressively. He asked Wallentine whether giving Mims repeated orders to drop the box cutter and aiming a Taser at Mims could be considered aggressive. Wallentine acknowledged that those actions could be considered aggressive. Largess also questioned Wallentine as to whether backing away from Mims into a corner with no means of escape would be a breach of training. Wallentine said, “I agree it’s not the best.” Largess explained that backing themselves into a corner would leave the officer with a choice to kill someone or protect themselves.

Verdict

The jury agreed with the Mims family and awarded them damages of $100,000. A juror explained that the relatively small wrongful death award represented the jury’s belief that both Mims and the police shared responsibility for Mims’ death.

Georgia

Gun Expert Testifies in McIver Murder Trial

A GBI weapons expert offered testimony on gun dynamics in the murder trial of Tex McIver, the prominent Atlanta attorney who is charged with the murder of his wife Diane.

The Shooting

In September 2016, Tex and Diane McIver were returning home from their country ranch to their Atlanta condo with their friend Dani Jo Carter behind the wheel. Carter ran into traffic, so she exited the highway on Edgewood Avenue. Tex told the women that this was a bad area and asked for his gun from the console.

A few blocks later, the SUV was stopped at a red light when Carter remembers hearing a “boom.” She said that she looked around and saw Tex putting the gun down and saying that he had fallen asleep. Tex claims that the gun went off while it was in his lap while he was sleeping. The bullet shot Diane through her left adrenal gland and kidney, blood vessels leading to her spleen, and through her pancreas and stomach. Diane passed away at the hospital in surgery.

Expert Testimony

Tex McIver was charged with murder, felony murder, aggravated assault with a deadly weapon, possession of a firearm, and influencing a witness. At trial, Georgia Bureau of Investigation (GBI) investigator Zachary Weitzel was called as an expert witness for prosecution. Weitzel demonstrated the mechanics of firing the .38 Smith and Wesson revolver that killed Diane McIver. Holding the gun in his hand, he showed the jury, “I would have to pull the trigger all the way, so about to there is as far as I can stage it without the hammer falling. . . . But, it would have to travel this same distance to fire.”

Weitzel explained that the pressure that it takes to cause the gun to fire depends on whether the gun was in single or double action. Weitzel measures the weight it takes to fire a firearm in pressure. If the gun is in double action, it would take 12 pounds of pressure to fire. However, if the gun is in single action, it only takes 2 pounds of pressure to fire. Weitzel said, “With double action you see that the trigger is set further back so from there I would have to pull the trigger back all the way. . . . If a gun is in single action it’s primed its ready to be fired. The only way a gun can be fired is if the trigger is pulled long enough to fire it.”

Under questioning, Weitzel confirmed that there is no test to determine whether a trigger was pulled on purpose and there is no way to know whether the hammer on the revolver was cocked on the night of the incident. Defense attorney Bruce Harvey asked Weitzel whether the gun could have gone off from keys in a pocket. Weitzel responded that, “Any force that exerts that kind of pressure can pull the trigger.” Weitzel also stated that the gun could have been fired unintentionally if the person who was holding it was startled.

Update

After four days of deliberation, the jury found McIver guilty of felony murder and four lesser charges. The jury found McIver not guilty of malice murder. The felony murder conviction carries a mandatory life sentence.

Murder, Bloody knife

Prosecutor Seeks to Discredit Experts in Nanny Trial

The lead prosecutor in the murder trial of Yoselyn Ortega sought to discredit two expert witnesses who testified on behalf of the nanny who is accused of killing two children who were in her care.

The Crime

Yoselyn Ortega, 55, is accused of killing Lulu and Leo Krim, ages six and two years old on October 25, 2012. Ortega had been in the Krim family’s employ for two years prior to the date when she took the two children into a bathroom and slaughtered them with knives.

The Trial

Ortega was charged with two counts of first-degree murder. The issue at trial is whether Ortega was too mentally ill at the time of the killings to be held responsible for the crime. In New York, there is a high bar for the insanity defense. To prevail, Ortega’s attorneys must show that she did not understand the consequences of her actions or know right from wrong at the time of the crime. Ortega’s attorneys retained two experts to testify on her behalf, Dr. Karen Rosenbaum and Dr. Phillip Resnick.

Dr. Karen Rosenbaum is a psychiatrist who evaluated Ortega based on Ortega, her family, friends, and neighbors. Dr. Rosenbaum’s report depicted Ortega as a religious woman who suffered from episodes of depression and auditory and visual hallucinations. Dr. Rosenbaum testified that, “She wasn’t in her normal conscious state, where she could control her behavior. . . . She was in a dissociative state and a psychotic state and wasn’t aware of her actions.” Dr. Rosenbaum opined that, at the time of the killings, “auditory hallucinations won over her and she went into an altered state of consciousness.”

Dr. Phillip Resnick, forensic psychologist, opined that Ortega was telling the truth when she said she did not remember stabbing the two children.  Resnick testified that Ortega’s amnesia was a symptom of a dissociative episode.  He said, “Ortega was psychotic. I mean she was out of touch with reality.”  Resnick rejected the prosecutors’ suggestion that Ortega killed the children to spite their mother. He emphasized that those who knew Ortega “talked about how much she loved the children so it makes no sense at all how a woman, even if she were angry with Mrs. Krim, would kill two children she loved. . . . She could have attacked Mrs. Krim. She could have killed Mrs. Krim in anger. But to kill two children she loved out of revenge simply does not add up or make sense.”

Cross-Examination

Lead prosecutor Stuart Silberg attempted to discredit both experts. He pointed out that Ortega had no documented report of mental illness prior to the killings and that her family only began to report her hallucinations after the crime. Silberg picked apart Dr. Rosenbaum’s analysis of Ortega, searching for inconsistencies and minor misstatements. Silberg questioned why Dr. Rosenbaum had not interviewed a doorman or a building superintendent who had spoken with Ortega immediately before and after the killings took place.

If the jury finds Ortega was insane at the time of the crime, she will be committed to a psychiatric facility. If she is convicted of the crime, she faces life in prison.

Update

Rejecting the testimony of the defense experts, the jury found Ortega guilty of two counts of first-degree murder and two counts of second-degree murder.

Gang

Experts Debate Rap Lyrics as Evidence of Criminality

Should rap lyrics be taken as evidence of criminality? Expert witnesses faced off over that question in the trial of three young men who were charged with felony murder in Knox County, Tennessee.

Zaevion Dobson Murder

Brandon Perry, 23, fired a number of shots in in Northwest Knoxville. The shooting related to a dispute between Perry and the uncle of his girlfriend’s child. Two hours later, someone shot at the home of Perry’s mother in East Knoxville.

Video from a squad car shows Perry and Christopher Bassett, 22, arriving at Perry’s mother’s home shortly after the shooting. Surveillance footage suggests that Perry and Bassett met up with several other young men. Six to eight men traveled to Lonsdale, where they began shooting. It has never been clear whether the men had a specific target in mind or how the Lonsdale shooting related to the shootings in East Knoxville.

Fifteen-year-old Zaevion Dobson played football for a Knoxville high school. Dobson, who had no gang involvement, reportedly shielded two girls when he heard the shots being fired. Dodson was killed in the shooting. President Obama mentioned Dobson’s heroism in a State of the Union address.

Charges Filed

Prosecutors charged three men with felony murder: Bassett, Richard Gregory Williams III, 23, and Kipling Colbert Jr., 22. Before the trial started, Williams was convicted of trying to kill a witness to the Dobson shooting. Prosecutors argued that his effort to kill a “snitch” demonstrated his gang involvement.

However, Bassett was a college student with no obvious gang affiliation. It wasn’t necessary to prove that any of the defendants were gang members given the other evidence in the case, but prosecutors likely believed that jurors would more readily convict if they viewed the defendants as gang members.

Gang membership is not itself a crime. The First Amendment protects freedom of association, including membership in a social organization. Whether the organization is the NRA, the Shriners, or a group that that society labels as a “gang” makes no difference to the constitutional right to associate with others.

On the other hand, membership in a criminal organization may suggest that members of the organization shared a common motive to commit a crime that benefited the organization. The First Amendment does not protect the right to associate for the purpose of committing a crime.

Rap Evidence

Prosecutors advanced the theory that the defendants belonged to the Bloods and that they committed violence in Lonsdale because it is the territory of a rival gang, the Crips. To demonstrate the defendants’ gang involvement, prosecutors introduced evidence of a rap video.

The video was posted to YouTube several months before the shooting. Several young men are lip-syncing in the video to “a rap song pledging allegiance to the Bloods street gang and describing street violence” — at least, that’s how the prosecution viewed the video. Bassett, Williams, and Colbert are among the participants. Basset appears, unarmed, for about half-a-minute in a five-minute video.

Again, rapping about gang violence is not a crime. The First Amendment guarantees freedom of speech, including the freedom to make a statement about the world as the speaker sees it, subject to very limited exceptions.

However, freedom of speech provides no absolute guarantee that the speech will not be used as evidence in a criminal trial if the speech is relevant proof of the crime. The government may tread upon the First Amendment, however, when it uses a person’s speech merely to suggest that the speaker should be punished for ideas that the speaker expressed. Prosecutions in other cases have been problematic to the extent that they use rap lyrics to suggest that the defendant is a criminal because the defendant raps about crime.

Conscientious judges are careful to prevent prosecutors from using protected expression to suggest that a defendant is bad because his lyrics are bad. When judges allow rap lyrics to be used as evidence, experts in rap are sometimes used to explain rap culture to juries who might have a stereotyped view of rappers.

Bassett’s lawyer tried to keep the video from being shown at the trial. The judge ruled that the lyrics were relevant. In particular: “Pull up. Pop out. Everybody get down if you don’t wanna get smoked.” According to the judge, “This is similar to the act and motivation the state alleges occurred in this case.”

One reasonable response to that reasoning is “So what?” The judge could not have believed that the lyrics described an apparently spontaneous crime months before it was committed. Moreover, lip-synching, like singing along with a song, cannot reasonably be seen as endorsement of the song’s lyrics. The defendants’ lawyers were legitimately concerned that the jury would convict the defendants because they were offended by the song lyrics or would use the song as evidence of bad character — a use that the law of evidence forbids.

Gang Expert Testimony

To bolster their case, prosecutors called Sgt. Tom Walker, a gang investigator for the Sheriff’s Office, as an expert witness. The investigator testified about the rivalry between the Bloods and the Crips. The Bloods claim the east side of Knoxville as their territory while the Crips claim the west side, including Lonsdale. He also testified about retaliation as a gang imperative.

A witness heard Colbert say “What’s bracking?” Walker testified that the Bloods use the phrase to mean “What’s happening?”

More controversially, Walker interpreted the rap video. He expressed the opinion that it is “definitely a Bloods song.” He based that conclusion in part on the fact that people in the video were wearing red bandanas and that red is a Bloods color. Of course, members of the Heartbeats often wore red corduroy jackets when they performed in the 1950s, but nobody accused them of being gang members.

On cross-examination, Walker admitted that the police had no record of any defendant being associated with a gang. Walker had testified as a gang expert in 29 trials, and this was the only one in which the police had no record that the defendants were gang members.

Walker also admitted that he is not an expert in African-American culture or rap music. He does not generally listen to rap music. He knew that the phrase “studio gangsta” refers to someone who pretends to be in a gang, and admitted that he was unaware that some defendants had social media accounts that promoted songs, including the one that was introduced as evidence.

Rap Expert Testimony

Erik Nielson testified for the defense as an expert in rap music. Nielson, an associate professor at the University of Richmond, wrote an article for Rolling Stone that condemns an “increasingly popular law enforcement tactic: using rap lyrics as evidence.” Nielson notes that prosecutors ask juries to take rap lyrics literally rather than as artistic expression, something that is not done in any other expressive genre.

Nielson described “studio gangsters” as artists who create a studio persona as gangsters that does not reflect their real life. Nielson also testified that the video introduced into evidence is a knock-off of a song called “SixDouble0” made by Chicago rapper Edai.

The defense argued that the defendants appeared in the video because they were aspiring rap artists, not gang members. Building a defense on Nielson’s testimony, they argued that the defendants were studio gangsters, not actual gang members.

Verdict

The evidence of gang membership was slim and the use of the video as evidence is troubling. At the end of the day, however, the video may have contributed little to the verdict, although it might create an appeal issue that could favor the defendants. Using expression of opinions that do not directly relate to a charged crime is prejudicial and in this case, arguably a violation of the First Amendment.

Other evidence, however, may have been more persuasive in convincing the jury to find all three defendants guilty. Bassett was the only defendant found guilty of first-degree murder. He was given an automatic life sentence for that crime. The judge sentenced him to an additional 35 years for his convictions of attempted murder.

Colbert and Williams were found guilty of facilitating first-degree murder as well as several other crimes. Colbert was sentenced to 107 years and Williams was sentenced to 143 years. All of the convictions are likely to be appealed, and the competing views of the expert witnesses about using rap lyrics as evidence will be an important issue for the appellate court to consider.

Virginia State Insignia

Virginia Supreme Court Considers Changes to Discovery Rules

The Virginia Supreme Court will consider proposed changes to its discovery rules that dictate what evidence must be shared by the defense and prosecution before a criminal trial. It is now seeking comments to the proposed changes.

Virginia State Bar Criminal Discovery Reform Task Force

Virginia State Bar created a task force to propose changes to its current discovery rules. The 13-member Virginia State Bar Criminal Discovery Reform Task Force is made up of prosecutors, defense attorneys, law professors and judges who spent eight months working on the proposed rules. The task force was led by Court of Appeals Judge Robert J. Humphreys.

The purpose of the new rules is to improve pretrial discovery and to ensure that defendants who enter plea deals to so with full knowledge of the evidence against them. Many prosecutors in Virginia already share this information with the defense, but it is not required as it is in many other states.

Reactions to Proposed Changes

Doug Ramseur, a Richmond-area defense lawyer who is a member of the task force said that, “I think most people are shocked to know that you could be charged with a felony and you don’t have a right to know before trial who the witnesses against you will be, or what the police investigation against you has shown.”

Shannon Taylor, a Henrico County commonwealth’s attorney stated, ”As a member of the task force, I am 100 percent in support of this, recognizing from the prosecutors’ association there may be elected prosecutors who are not in support of this. . . . This is a situation where both sides have relinquished some type of position that was normally held, and we are all very hopeful.”  Taylor explained that the task force hopes that the rule changes will facilitate communication between the parties and protect victims and witnesses.

Steven D. Benjamin, a Richmond Lawyer and past president of the National Association of Criminal Defense Lawyers has commented, “Any improvement to Virginia’s strict discovery rules is to be commended and is in the public’s best interest.”  Benjamin stated that the proposed new rules would require parties to exchange witness lists and experts reports and allow the defense to read police reports. He also stated that the rules “largely restate existing law and clarify mechanisms for protecting privacy and safety. As a whole, they represent an accommodation of competing interests and concerns, and may be the consensus the (high) court has sought in order to make improvement.”

Fairfax County Commonwealth’s Attorney Ray Morrogh has expressed concern that the new language may hamper his office’s ability to protect victims and witnesses. Others express concern that innocent defendants are too easily convicted when they have no opportunity to investigate the evidence that allegedly proves their guilt. Sending innocent people to prison never protects victims or witnesses.

This is the third attempt in five years to amend Virginia’s discovery rules. In 2013, the Virginia State Bar’s Indigent Defense Task Force attempted to amend the discovery rules. In 2015, a 29-member Special Committee on Criminal Discovery Rules produced a 60-page report that the Virginia Supreme Court declined to adopt. The Virginia Supreme Court is accepting comments on the proposed rules until June 1.

Police Brutality

Use of Force Expert Testifies in Police Shooting Trial

A use of force expert has offered testimony for the prosecution in the trial of a Brown Deer police officer who is charged with aggravated battery in connection with a 2016 shooting.

The Shooting

In March 2016, a Milwaukee County Transit System bus driver flagged down two police officers to report Manuel Burnley Jr. for disorderly conduct. Surveillance video captured the scene. The video showed the officers taking Burnley off the bus and all three falling to the ground. During the struggle, Burnley was flipped onto his stomach as the officers attempted to handcuff him. Officer Devon Kraemer then fired a shot into his back.

Burnley suffered rib fractures and lost part of a lung. He was hospitalized for 12 days as a result of the shooting.

Trial Testimony

Officer Kraemer, 28, was charged with aggravated battery, intending bodily harm. In her defense, she claims that she feared for her and her partner’s safety, notwithstanding that the two officers were in control of the unarmed man. If convicted, Kraemer could face up to 10 years in prison.

District Attorney John Chisholm called Emanuel Kapelsohn, an expert on use of force and a Harvard-trained lawyer, to testify for the prosecution. Kapelsohn said that he has been an expert witness and consultant for thousands of cases, but that this is the first time that he is taking the prosecutors’ side against an officer who was charged for an on-duty shooting.

Kapelsohn testified that Officer Kraemer was not justified in shooting Burnley. He said that while Kraemer may have believed that Burnley was reaching for a gun, that belief was objectively unreasonable and fell short of the standards of using deadly force.

Kapelsohn said that the fact that Burnley was not violent was a factor in his decision. “He doesn’t punch an officer, he doesn’t kick an officer but he’s resisting, not fighting.” Kapelsohn said that Burnley resisting arrest and his size would elevate the threat level, but not enough to justify the shooting. “That would reasonably make the officer concerned, but you can’t assume he’s grabbing your partner’s gun.” At the time of the incident Officer Kraemer, who is 5’5” tall, weighed about 140 pounds, while the 5’10” Burnley weighted about 370 pounds.

Kapelsohn opined that the officer did not act as if they thought he was armed. He noted that the fact that Kraemer re-holstered her gun after the first shot was an error if she truly believed him to be a threat. “That’s contrary to police training and contrary to what any officer would logically do because if she thought he was reaching for a concealed weapon, he’s still moving around, you wouldn’t holster it right away.”  He also noted that the officers allowed Burnley to reach into his pocket, with a phone in his hand, while they spoke to him on the bus.

Kraemer’s attorney, Christopher MacGillis, cross-examined Kapelsohn.  MacGillis questioned Kapelsohn’s understanding of Wisconsin police training standards since his office was based in Pennsylvania. MacGillis also questioned Kapelsohn about whether the weight disparity between Kraemer and Burnley could have affected her perception of Burney as a threat to her safety.

Kraemer is currently on administrative suspension from the Brown Deer Police Department.

Hung Jury

Jurors are always reluctant to convict a police officer, no matter how strong the evidence appears to be. Jurors deliberated for three days before advising the judge that they were unable to reach a unanimous decision. The judge declared a mistrial based on the hung jury.

Utah

Utah Supreme Court Reverses Conviction Based Upon Unreliable Expert Testimony

The Utah Supreme Court has reversed the conviction of Komasquin Lopez after finding that a suicidologist’s theory failed to meet an adequate threshold to prove its reliability.

Conviction

In December 2013, Shannon Lopez picked her husband, Komasquin Lopez up from work. Both had consumed methamphetamine. Komasquin testified that the two argued over Shannon’s methamphetamine use and the couple’s financial problems as they drove home. During the drive, Sharon suffered a fatal gunshot wound to the head.

Komasquin was the only other occupant of the vehicle. He maintained that he was innocent and claimed that his wife took her own life. A handgun and shell casing were found near the driver’s seat. Investigators determined that the fatal wound came from a gun that was pressed against the left side of Shannon’s head. Shannon was right-handed.

Komasquin was charged with his wife’s murder. At trial, the State presented testimony from Dr. Craig Bryan, a clinical psychologist who specializes in the treatment of suicide patients. Dr. Bryan used the Fluid Vulnerability Theory of Suicide (FVTS) to assess the likelihood that Shannon took her own life. FVTS assesses two different types of risk: baseline, which is affected by predispositions, and acute, which involves the emotional, physiological, behavioral and cognitive risk of the active episode. FVTS is the “most commonly used theory and approach to developing treatment and understanding suicide risks.” Dr. Bryan typically used interviews and tests to identify FVTS risk levels. Dr. Bryan applied FVTS to opine that Shannon Lopez’s behavior prior to her death was inconsistent with suicide.

Komasquin was convicted and sentenced to 16 years to life in prison.

Appeal

Komasquin appealed his conviction, arguing that the State did not lay a sufficient foundation to demonstrate that its expert’s theory could produce a reliable assessment of Shannon’s suicide risk. The defense also argued that the district court erred by admitting evidence that he had pointed a gun at Shannon in the past and threatened to kill her.

The Utah Supreme Court agreed. It found that the State had not adequately laid the foundation as to whether FVTS was generally accepted as a means for assessing suicide risk in someone who had already passed away. It noted that the record showed that Dr. Bryan had never addressed whether FVTS had ever been used to address suicide risk in someone who was deceased. Accordingly, the Court found that the district court erred by admitting Dr. Bryan’s testimony under Utah Rule of Evidence 702. Justice John Pearce, writing for the court, noted that the conflicting evidence in case made it likely that Dr. Bryan’s opinion likely swayed the jury.

The Court also found that the district court had abused its discretion by admitting Komasquin’s prior acts of pointing a gun at and threatening Shannon because the past events were not sufficiently similar or frequent to be admitted.

Komasquin Lopez’s conviction was reversed and his case was remanded to 3rd District Court, where he may face a new trial.

Florida Supreme Court Rejects Daubert Rule

Judge Allows Requests for Hiring Expert Witnesses Under Seal

A judge in Orange County, Florida has decided to allow accused murderer Markeith Loyd’s defense attorneys’ motion to hire expert witnesses under seal.

The Crimes

Markeith Loyd is accused of killing his ex-girlfriend Sade Dixon and their unborn child in a December 13, 2016 shooting. He is also charged with first-degree murder and attempted first-degree murder of a law enforcement officer in connection with the January 2017 shooting death of Orlando police Lieutenant Debra Clayton, who was shot while trying to capture him. Loyd is charged with a total of 10 crimes and faces the death penalty.

The Motion

Attorney Roger Weeden filed a motion on Loyd’s behalf requesting that an alternate judge be appointed to rule on requests for expert witnesses and to keep the details of those hirings under seal. The motion did not specify which experts they wanted to bring, but generally they are  mental health professionals. Weeden argued that having an alternate judge rule on expert witnesses would prevent bias and help keep key defense strategies from becoming public knowledge. Weeden said that this system has worked well in other Orange County murder cases that have been tried by other judges.

Weeden argued that members of the public, the media, and prosecutors should not be allowed to know who was evaluating Loyd unless the defense decided to put those experts on the stand. Weeden claimed that, because he was an appointed attorney paid using public funds, he was at a disadvantage compared with private attorneys or attorneys with the Public Defender’s office. If Loyd was able to afford his own experts or if he was using attorneys from the Public Defender’s office, he would be able to hire expert witnesses without court approval. Weeden argued that this autonomy means that they are able to plan their cases and expert witness strategy without creating public records. Weeden argued that his client should not be disadvantaged because “we do not have a wealth-based criminal justice system.”

State Attorney Brad King argued that if Loyd’s defense team was allowed to hire its expert witnesses in private, it may lead to defense attorneys having the ability to shop around for witnesses, hiring them continually until they find one who is willing to give favorable testimony. He stated, “There are certain defense attorneys who do exactly what you’re talking about and go through three, four or five experts looking for a favorable report.”

Ninth Circuit Chief Judge Frederick Lauten decided that Loyd’s defense team would be allowed to file requests for hiring expert witnesses under seal and have them ruled on privately. The hiring and payment decisions will be subject to a sealed review by Florida’s Justice Administrative Commission. Judge Lauten also ruled that the individual decisions and their details would be unsealed upon testimony of each witness or at the conclusion of the trial for those witnesses who are not called to testify because the public should have the right to know how much taxpayer money was spent to prosecute and defend Loyd.