Category Archives: ExpertWitness

Wisconsin Justice Concept

Expert Opinion of Involuntary Intoxication Excluded Because Expert Was Unqualified to Assume the Existence of a Medical Condition

Paul Ayala was charged with operating a vehicle while under the influence of an intoxicating drug in Milwaukee County, Wisconsin. The trial court excluded the testimony of his expert witness and Ayala was convicted. The Wisconsin Court of Appeals affirmed the trial judge’s exclusion of the expert testimony.

Facts of the Case

A police officer observed Ayala’s car facing west in an eastbound traffic lane. The engine was running but the car was not moving.

The officer noted that the car was damaged. Two mirrors were broken, the bumpers were dented, and the car had a flat tire. Ayala seemed confused and his speech was slurred.

Ayala failed field sobriety tests and was arrested. A blood test revealed the presence of Ambien in an amount well in excess of a therapeutic dose. Ayala denied taking Ambien on the night of his arrest.

Expert Evidence

Ayala wanted to raise the defense of involuntary intoxication. To that end, he proffered the testimony of Dr. Esam Dajani, a toxicologist and pharmacologist.

Dr. Dajani’s expert report expressed the opinion that Ayala suffered from a medical condition that inhibited his ability to absorb Ambien, causing it to remain in his stomach for two to three days. Dr. Dajani opined that Ambien built up in Ayala’s system over a period of time and that the cumulative effect of the Ambien, coupled with some antihistamines he took before he started driving, produced his intoxicated state.

The prosecution moved to exclude Dr. Dajani’s testimony on the ground that he was offering a medical opinion that he was not qualified to give. The trial court held a Daubert hearing before granting that motion.

The court based its ruling on Dr. Dajani’s assumption that Ayala suffered from the medical condition that supposedly inhibited his ability to absorb Ambien. Dr. Dajani based that assumption on medication that had been prescribed to Ayala. However, Ayala’s medical records did not include a diagnosis confirming that medical condition.

Appellate Review

While the Wisconsin Supreme Court declined for many years to adopt the Daubert standard, the state legislature amended the Rules of Evidence to require trial courts to subject expert testimony to Daubert scrutiny. Wisconsin appellate courts nevertheless give trial courts “broad latitude” in deciding how to determine the reliability of an expert’s opinion.

The Wisconsin Court of Appeals applied that deferential review to the trial court’s exclusion of Dr. Dajani’s opinion. The appellate court deferred to the trial court’s finding that, as a pharmacologist and toxicologist, Dr. Dajani was not qualified to diagnose a medical condition. Since his expert opinion depended on a diagnosis that Dr. Dajani could not make, his opinion was not reliable.

The outcome may well have been different if Ayala’s medical records had confirmed that he had the medical condition that Dr. Dajani inferred was the basis for the medication that Ayala’s doctor had prescribed. Dr. Dajani’s expertise would likely have permitted him to render an opinion about the absorption of Ambien into the system of a patient who suffers from that condition. But since the condition had never been diagnosed (or at least had never been recorded in the medical records that Dr. Dajani reviewed), Dr. Dajani had no reliable facts upon which to base his expert opinion.

Lesson Learned

It isn’t clear whether Dr. Dajani contacted Ayala’s physician to inquire about the missing diagnosis. Had he done so, and had the diagnosis been consistent with the condition upon which Dr. Dajani based his opinion, Dr. Dajani would presumably have been relying on the kind of facts that experts are permitted to consider in forming an opinion. Since his opinion would then have had a foundation, Dr. Dajani would presumably have been allowed to testify.

Perhaps the defense made a calculated gamble not to contact the physician for fear that the physician had not made a diagnosis that would support Dr. Dajani’s opinion. If so, the gamble did not pay off. Hindsight is always 20-20, but the lesson to be learned is that an expert who is not a physician and whose opinion is conditioned on a medical diagnosis should confirm that a physician actually made that diagnosis rather than inferring that the diagnosis must have been made.

Motorcycle

Jesse Ventura Testifies as Motorcycle Club Expert

Mongols Logo

Mongols Logo (from mongolsmc.com)

Jesse “The Body” Ventura is known as a professional wrestler and as the governor of Minnesota. He is also considering a run for the presidency in 2020. He recently added a new credential to his resume, that of expert witness.

Federal prosecutors accused the Mongols Motorcycle Club of racketeering. The government argued that the “outlaw” motorcycle club has engaged in a pattern of criminal behavior. To defend against that accusation, the Mongols called Ventura to testify as an expert witness.

Criminal Prosecution

The racketeering charges were filed against the Mongols as an organization, not against its individual members. The government has prosecuted individual members for individual and collective crimes with mixed success, but its efforts have not caused the Mongols to disband.

Organizations cannot serve prison time, but they can be made to forfeit the property that they use to commit crimes. The government’s apparent objective is to seize control of the Mongols’ trademarked patch, described by the New York Times as “a drawing of a brawny Genghis Khan-like figure sporting a queue and sunglasses, riding a chopper while brandishing a sword.”

Claiming that a logo is an instrumentality that facilitates criminal activity seems a bit of a stretch. The same crimes can just as easily be committed with or without a logo. How the logo facilitates crime is a bit of a mystery.

Prosecutors nevertheless hope to obtain control of the trademark by using criminal forfeiture laws. Prosecutors seem to think that depriving the Mongols of trademark rights will put the group out of business. Why they believe that to be true is also a bit of a mystery.

It appears that prosecutors believe they can stop Mongols from wearing their logo, and thus destroy the group’s identity, by seizing the trademark. If the Mongols commit murder and extortion, as the government claims, are they likely to worry that wearing leather jackets with the Mongol patch will infringe a trademark that the government owns?

Wearing a trademarked jacket isn’t a crime, but even if it were, it hardly seems like a wise investment of public resources to arrest people for wearing a jacket, some of whom might not be Mongols. Nor is the government’s apparent plan practical. Does the government expect to seize the bodies of club members who have tattooed the insignia onto their shoulders and biceps?

Perhaps the government hopes to deprive the Mongols of licensing fees the club collects from retailers who sell attire that features the club’s logo. Denying the club a legitimate source of income may be counterproductive if it encourages the club to replace that income through illicit means. Since taking the trademark plainly won’t put the Mongols out of business, it is difficult to understand the government’s objective.

Expert Testimony

Regardless of the Justice Department’s wisdom in prosecuting the Mongols as an organization rather than prosecuting individual members for crimes they commit, the government brought the case to trial. The Mongols defended against the racketeering charge by arguing that it does not sanction or encourage any crimes that its members might commit.

To advance that defense, the Mongols called Jesse Ventura as an expert witness. Ventura has long been a member of the Mongols. When asked whether Ventura’s membership made him part of a criminal gang, Ventura testified that it did not.

Despite becoming a “full patch” member of the Mongols, Ventura denied committing any crimes for, or on behalf of, the organization. Ventura testified that he was never asked to commit crimes and never did.

Ventura joined the Mongols in 1973 after returning to the United States from his second tour of duty in Vietnam. Ventura found a “brotherhood” in the Mongols that he could not find elsewhere in civilian society. He explained that the organization provided a valuable transition to civilian life after serving in Vietnam.

Ventura acknowledged that some Mongols have committed crimes but pointed out that members of many organizations have broken the law. He contended that some “bad apples” should not be taken as evidence that the organization as a whole is rotten.

Ventura admitted that “bad blood” existed between the Mongols and the Hell’s Angels, but attributed any acts of violence to the exercise of self-defense or necessary retaliation rather than gang wars. His knowledge of recent Mongols activity is limited, however, by his move to Minnesota in 1974 to pursue a career in professional wrestling.

Despite his continued membership, Ventura did not attend Mongols meetings and would not have been aware of any discussions of criminal activity that may have occurred in his absence. The evidence presented by prosecutors focused on crimes committed in the current century.

Verdict

Notwithstanding Ventura’s testimony, a jury found the Mongols guilty of racketeering. Whether the government will be entitled to seize the Mongols’ trademark is an unsettled question. Whether it will make a difference to the Mongols if the government does so is even less clear.

What is clear is that the government’s attempt to seize intellectual property in a criminal prosecution raises a host of legal issues. Those issues will only be resolved by diverting government resources from crime fighting tactics that would surely be more effective than trying to stop people from exercising their right to express themselves by wearing a logo.

social media facebook

Sixth Circuit Rejects Expert Testimony About How Criminals Use Facebook

Malik Farrad was convicted of a felony and thus was subject to a federal law that prohibits individuals with felony convictions from possessing firearms or ammunition. After Farrad served his sentence, the police in Johnson City, Tennessee received reports that Farrad had been seen in possession of guns.

To further the investigation of those rumors, a Johnson City police officer sent Farrad a “friend” request on Facebook. Farrad accepted the request, giving the officer the opportunity to view the postings that Farrad made available to Facebook friends. The officer saw a photograph that appeared to show three handguns “sitting on a closed toilet lid in a bathroom.”

On the strength of that photograph, the police applied for and received a warrant that directed Facebook to release all information associated with Farrad’s Facebook page. Facebook released additional photographs to the police, including some pictures showing “a person who looks like Farrad holding what appears to be a gun.” Farrad’s identification was assisted by tattoos that are visible in the pictures.

Farrad’s Trial

Farrad was arrested for being a felon in possession of firearms. No witness who testified in his trial actually saw Farrad with a gun. The police produced no gun at the trial. The prosecution’s evidence consisted largely of the photographs and the inferences that the photographs were taken after Farrad was convicted as a felon, that Farrad is the person in the photographs, and that the gun he is holding in the picture is real.

Testimony during the trial revealed that Facebook strips metadata from posted photographs, making it impossible to access that data to determine the date and time that a photograph was taken. However, a police officer testified that the background of the photographs matched an apartment that Farrad occupied, and the property manager testified that Farrad began his occupancy in February 2013, after he was convicted of a felony.

Farrad objected to admission of the photographs as hearsay. The prosecution countered that they were admissible as business records maintained by Facebook. Farrad then objected that Facebook could not authenticate the photographs because Facebook did not know who took the photographs or when or where they were taken. The trial court overruled that objection and admitted the photographs into evidence.

Expert Testimony

Officer Hinkle, who worked as the police department’s armorer, testified as a weapons identification expert. He testified that the gun shown in the photographs was a Springfield XD .45 caliber handgun. The officer expressed the opinion that the gun was real based on markings and other details that were consistent with a real gun. Hinkle searched the marketplace for a replica of a Springfield XD .45 but could not find one.

To supplement evidence that seems a bit weak on its face, the prosecutor used the presumed social media expertise of Officer Garrison, the police officer who “friended” Farrad. Garrison was asked to testify “in his capacity as an experienced user of social media in the service of police investigations.” In that capacity, and based on his “training and experience,” Garrison testified that criminals usually upload photographs to their social media accounts soon after the criminal conduct occurs (“Generally, in my experience, it’s been more of a — you know, like I say, it can be instantaneous. But it is more of a present-type of thing.”).

When asked why criminals post evidence of crimes to social media, Garrison testified that criminals “like to brag about their — their activities, they’re proud of it, and just like anyone, they want to let their friends know what they’re doing, let their friends know, you know, where they’re at, what’s going on.”

Garrison then testified that, in his experience, the camera app on a cellphone makes it more likely for someone who takes a picture on a cellphone to upload the picture immediately to social media. He thought it would be “rare” for a criminal to wait a substantial period of time before posting evidence of a crime to a social media site.

When asked to identify the criminals who, in his experience, admitted to taking pictures of criminal activity and posting those pictures to a social media site, Garrison testified that he couldn’t think of a “specific instance.” Nor could he identify any specific training that informed his opinion. None of that dissuaded the judge from admitting the testimony based on the officer’s supposed training and experience.

Postconviction Motion

The jury found Farrad guilty and the judge sentenced him to more than 15 years in prison. Farrad later filed a motion for a new trial based on his discovery of website pages showing that Ring Manufacturing sells a replica of a Springfield XD .45. Farrad alleged that the prosecution’s expert testified falsely that no fake versions of the weapon are available in the marketplace.

The judge denied the motion, determining that Farrad presented no evidence that its expert officer deliberately lied. The judge may have believed that the officer conducted a search of the marketplace but that the search was less than thorough, making the expert incompetent but not dishonest.

More importantly, the judge concluded that evidence of the replica firearm would have made no difference because the replica shown on the web pages is bright blue to prevent it from being mistaken for an actual weapon. The replica therefore could not be the weapon shown in the photographs that appeared on Farrad’s Facebook page.

Appellate Opinion

The appellate court easily found that Officer Hinkle’s expert testimony was admissible. Hinkle’s training and experience qualified him as a firearms expert. He had a reasonable basis for identifying the gun in the Facebook photographs and for rendering the opinion that the gun was real.

The court came to the opposite conclusion with regard to Officer Garrison. The court concluded that Garrison testified as an expert, given that he was asked to express opinions based on his training and experience.

Moreover, the prosecution presented him to the jury as an expert in a “niche area of social-media activity: how criminals behave on social media.” Since the prosecution presented that body of knowledge as falling “beyond the ken of an average juror,” Garrison’s testimony was subject to the admissibility rules that apply to expert witnesses.

The appellate court decided that Garrison was unqualified to render the opinions he offered and that the opinions were not reliable. To be qualified to opine about the social media habits of criminals, Garrison needed to have special knowledge of the topic.

While the government made a show of Garrison’s training and experience as a police officer who was familiar with Facebook, Garrison admitted that he had never talked to a criminal about Facebook usage. Nor could he recall any training relevant to the use of Facebook by criminals, although he claimed to have chatted with other officers about the topic.

Garrison’s opinions were unreliable because they were not based on adequate data. He could not offer even anecdotal support for his opinions. Nor were his opinions based on a methodology, much less one that was reliable. The court concluded that the common perception of police officers as experts on crime must give way to the demand that expertise be demonstrated, not assumed. In any event, there is no reason to believe that police officers who have not formally studied the subject are experts in the social media habits of criminals.

Conviction Affirmed

The court concluded that Garrison’s testimony should not have been admitted. In the end, however, the court decided that his testimony wasn’t important to the conviction.

Garrison’s testimony was presented to prove that the photograph was uploaded soon after it was taken, but Farrad’s lawyer did not argue that the photograph was taken before Farrad was convicted. That might have been an error on the lawyer’s part, but that is not the kind of error that can be raised in a direct appeal in federal court. Farrad’s conviction was therefore affirmed despite the trial court’s error in treating a police officer as an expert witness regarding the Facebook habits of criminals.

Election Experts Testify in Virginia Voter ID Case

Court Overturns Death Sentence Because Expert Testimony Wrongly Excluded

A federal appeals court has overturned the death sentence of a man who was convicted of raping and beating a woman to death because the testimony of an expert witness had been wrongly excluded.

The Crime

In September 2008, 29-year-old Genevieve Orange returned home from her job at the Futures Industry Association in Washington, D.C. and lay down on her couch to watch a DVD. Mark Lawlor, a leasing agent for Orange’s building, broke in with a key and began beating her.

Lawlor used a frying pan and and hammer to beat Orange. Evidence showed that Orange incurred 30 blows to her skull and 17 more wounds on her arms. Lawlor then raped Orange as she lay dead or dying on the floor.

When Orange failed to show up for work, a police officer found the door to her apartment unlocked. Orange’s body way on the floor with her head covered in blood, naked from the waist down, and with her shirt pulled up to her neck.

The Trial

At Lawlor’s capital murder trial, his attorneys admitted that he killed Orange, but they asked the jury to convict him on the lesser charge of first-degree murder. Lawlor’s attorneys argued that his mind was so muddled by beer and crack cocaine that his actions could not meet the legal standard of capital murder.

At the sentencing phase of his trial, capital public defender Ed Ungvarsky said, “I ask you, I implore you, I beg of you, chose life.”

Genevieve Orange’s mother, Marilyn Orange, did not buy the argument that Lawlor was too drunk or high to appreciate his actions. She said, “He had drugs in him, he had alcohol in him… But a lot of people have drugs and alcohol in them, and they don’t kill anybody.”

Orange also noted that Lawlor never apologized for his actions. “He’s not remorseful,” she said. “It was always: ‘Poor me. I didn’t have a chance at this or that, and poor, poor me.’ ”

During the sentencing hearing, the Fairfax judge who presided over the trial limited the testimony of a defense witness from testifying about the future danger Lawlor posed in prison. Fairfax Circuit Court Judge Jonathan C. Thacher ruled that the expert must testify about Lawlor’s potential threat in all of society, not just in prison

The Appeal

On appeal, the Virginia Supreme Court and a federal district court ruled that Thacher’s ruling were correct. However, the Fourth Circuit Court of Appeals disagreed with the ruling.

The court reversed the ruling, citing a U.S. Supreme Court ruling from 1981 that said the “Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record … that the defendant proffers as a basis for a sentence less than death.”

The court noted that there was “grave doubt” that the limitation of the testimony was harmless and remanded the case to U.S. District Court in Alexandria for proceedings consistent with its opinion.

A spokesperson for the state Attorney General Mark Herring said that Herring will review the Fourth Circuit’s ruling and decide how to proceed.

hypnotic

Hypnosis Experts Challenged in Texas

Everyone agrees that expert evidence should be reliable. Judges have historically determined whether an expert is qualified to render a specialized opinion, and if so, whether the expert’s opinion is based on something more substantial than conjecture.

Some version of the Daubert standard for determining the admissibility of expert testimony now prevails in most states. That standard gives judges a greater role in deciding whether expert testimony is based on a reliable methodology.

Reliability standards have tended to be more stringent in civil cases because the insurance industry and business lobbyists have campaigned for admissibility standards that serve their interests by excluding expert testimony that might convince a jury of a corporate defendant’s liability. Reliability standards have tended to be more lax in criminal cases because prosecutors have advocated standards that serve their interests in obtaining convictions. The different approaches to reliability in civil and criminal cases make it easier for “junk science” to be admitted in criminal trials, as the President’s Council of Advisors on Science and Technology made clear in 2016.

Sometimes experts who do not testify influence the testimony of other witnesses. In those cases, the question of reliability becomes more difficult for courts to assess. Testimony that is “refreshed” by hypnosis is an example of an expert’s use of a methodology that may cause juries to hear unreliable testimony.

Hypnotically Refreshed Recollection

Charles Flores and Richard Childs were charged with murdering a 64-year-old woman who was unexpectedly at home when they burglarized her house. The murder was committed in 1998. Childs made a deal and was sentenced to 35 years in prison. He was released after serving 17 years.

Flores was found guilty in a trial and was sentenced to death. When Childs entered his guilty plea, he admitted that he killed the victim, but a jury found Flores guilty because of evidence that he participated in the robbery that ended in the victim’s death. Allowing the killer to go free after 17 years while the non-killer is sentenced to death is an outcome that causes people to wonder what is wrong with the criminal justice system.

Two witnesses testified that Flores admitted to being at the crime scene. A third witness testified that she smoked methamphetamine with Flores and Childs before telling them that there was money hidden in the victim’s home.

The only eyewitness who placed Flores at the crime scene testified after her memory was hypnotically “refreshed.” Before being hypnotized, she could only recall seeing two men get out of a Volkswagen and enter the victim’s home at about the time the murder was committed. She couldn’t make an identification because she only glimpsed the men while peeking through the blinds shortly before sunrise.

Other neighbors saw two white men leave the Volkswagen. They described the men as having a medium build and long hair. Flores is Hispanic, obese, and had short hair at the time the crime was committed.

After being hypnotized, the neighbor who testified was suddenly able to identify Flores as being one of the men. Was her recollection hypnotically refreshed, or did the hypnosis influence her identification?

The witness was hypnotized by a police officer. She was the first and only person he ever hypnotized. Even if hypnosis might refresh a memory without changing it, there is reason to question whether a police officer who is not an experienced hypnotist is the kind of expert who can produce a reliable result.

Hypnosis Challenged as “Junk Science”

Flores was scheduled to be executed, but he received a stay so that he could challenge the reliability of memories that are refreshed through hypnosis. He may have an uphill battle, given that Texas appellate courts have twice upheld hypnosis as a forensic tool, while purporting to place safeguards on its use.

It may be time for Texas to reexamine those precedents. More than half of all states have deemed hypnosis to be “junk science” and have banned testimony that would not have been given in the absence of hypnosis. The modern trend, based on new research into how memories are formed and stored, has rejected the reliability of hypnosis as a tool for producing accurate memories.

Studies have found that hypnosis does not help people recall events more accurately. Instead, it makes people more confident of their memories, whether or not the memories are correct. In fact, studies suggest that hypnosis converts guesses and hunches into statements of absolute fact.

Studies have also demonstrated the risk that questioning under hypnosis will implant false memories. That risk is particularly concerning when the hypnotist is a law enforcement officer rather than a neutral expert.

In states that allow testimony based on hypnotically refreshed memories, it is imperative for defendants to call an expert witness who can explain to the jury why hypnosis is not a reliable means of producing accurate memories. If Flores loses his challenge, he may one day be executed because his lawyers failed to present critical expert testimony to the jury.

Gun

Firearms Instructor Not Permitted to Testify as Expert Witness

Carlos Jones was convicted of second degree murder for causing the death of his wife, Tabatha Smith. Jones testified that he woke up in the morning and got out of bed to check on the children. When he returned to the bedroom, his wife rolled over onto the gun he kept beneath his pillow. She said, “You and this gun” in an apparent reference to the discomfort it caused.

Jones testified that he removed the gun from beneath the pillow and assured Smith that it was not loaded. He put the gun in the back pocket of his jeans, but it fell through a hole and landed on the floor. He testified that when he picked it up, the gun fired two or three times. His wife said, “I told you.”

Jones could not say exactly how the gun fired, but testified that the shooting was accidental. He said he did not aim the gun and did not recall pulling the trigger.

When he realized that his wife had been shot, Jones rushed her to the hospital. She was still conscious at that point, but did not answer the questions posed to her by police investigators.

Jones spoke to an acquaintance at the hospital. He allegedly stated the gun had a hair trigger, that the trigger “stuck,” and that it fired multiple times.

At some later time, the police attempted to question Smith again, but she could not speak. When an investigator asked her whether Jones shot her, she lifted her hand slightly.

Smith died after fifteen days in the hospital. She was struck by two bullets, one of which damaged her jugular vein and struck the vertebrae in the back of her neck.

Prosecution Expert

Carl Fullilove, who is identified in the appellate opinion only as a “forensic scientist,” testified that he tested Jones’ gun to determine whether it would misfire. Fullilove was unable to make the gun fire without pulling the trigger, even after striking it with a rawhide hammer. Fullilove opined that it was necessary to pull the trigger once per shot to make the gun fire.

Defense Expert

Consumers of the news might recall the FBI agent whose gun fell out of his pocket while he was dancing. A video captures the gun firing accidentally as the FBI agent picked it up. That gun, however, fired only once. Jones’ problem was convincing the jury that he accidentally shot his wife twice.

The defense attempted to overcome that problem by calling Darrell Carey, a firearms instructor, as an expert witness. The trial court refused to admit him as an expert witness because his testimony was not “based on sufficient facts or data” or “based on reliable principles and methods.” The judge noted that Carey had not produced any written documentation or publication, and that “his testimony was strongly weighted or heavily weighted toward firearm shooting and not the mechanics of the firearm itself, i.e., the assembling, disassembling, [or] the methodology of how it operates.”

It isn’t clear why the judge thought that hitting the gun with a “rawhide hammer,” the methodology used by the prosecution expert, was any more reliable than Carey’s methodology. Nor is it clear why the assembling or disassembling of the gun is important in a case that did not involve taking a gun apart. The relevant question was whether the gun would fire accidentally, not how the gun operates.

The judge allowed Carey to testify about his personal observations as a lay witness. Carey testified that he was able to recreate an accidental discharge of the gun, as was shown on a video recording that was admitted into evidence. He found that by picking up the gun with a finger on the trigger, the weight of the gun against his hand could cause the gun to fire in quick succession.

Carey testified that the heavy weight of the slide caused the gun to bump against his trigger finger. He testified that one time the gun fired twice, and another time the gun fired three times, without consciously pulling the trigger.

Expert’s Qualifications

The Mississippi Court of Appeals affirmed the trial court’s decision not to allow Carey to provide expert testimony. The court noted that Carey did not hold an engineering degree and had never published any scholarly articles, although the relevance of that observation is doubtful.

Like most states, Mississippi law specifically allows an expert to base testimony on “technical, or other specialized knowledge,” which can be acquired from experience rather than academic training. Mechanics routinely testify as experts on the vehicle engines and parts, but few mechanics have published academic articles about their knowledge. The fact that Carey was not an engineer went to his credibility, not to his qualifications as an expert.

The appellate court also agreed with the trial court that Carey was unable to testify about the mechanics of a gun. Again, his testimony might have been stronger if he had measured the amount of pressure that was required to pull the trigger, but as someone who teaches firearm operation, Carey plainly had more knowledge of how firearms fire and misfire than a lay person.

The fact that he could not testify about handgun engineering went to Carey’s credibility, but he was plainly qualified to testify about handgun operation. Since the question was whether the firing mechanism was operated intentionally or accidentally, Carey was qualified to give the jury a helpful opinion based on knowledge that most jurors would not have.

Expert vs. Lay Testimony

Finally, the appellate court noted that Carey’s testimony “was largely contingent upon his own personal observations of the handgun’s functionality, in light of Jones’s theory of defense.” The relevance of that observation is unclear.

Any expert who performs tests and testifies about the result is relying on his or her personal observations. Carey tested the gun and explained the results of the tests to the jury. That’s what experts do. It is the expert’s experience in interpreting observations, not the fact that testimony is based on observations, that distinguishes expert from lay testimony.

While the court’s analysis is far from convincing, it isn’t clear that Carey would have testified any differently if the court had allowed him to testify as an expert. Nor is it clear whether the jury would have viewed his testimony in a different light if the court had identified him as an expert rather than a lay witness. The trial court’s error might have been harmless, but that is a question the appellate court did not address.

Mirena, IUD

Federal Judge Excludes All Plaintiffs’ Testimony in Mirena MDL

A New York federal judge has excluded testimony from all expert witnesses for the women in the multi-district litigation that alleges that Bayer’s contraceptive Mirena causes a rare disease involving spinal fluid.

Mirena Device Controversy

The Mirena contraceptive device is a hormone-releasing intrauterine device. It is placed into the uterus by a trained healthcare provider during an office visit. It works by releasing levonorgestrel (LNG), a synthetic steroid hormone.

The plaintiffs claim that LNG causes idiopathic intracranial hypertension (IIH), or pseudotumor cerebri. This is a rare disease that causes increased cerebrospinal fluid pressure in the brain. If left untreated, IIH can cause headaches, vision problems, or blindness. IIH has been described as “the clinical syndrome of raised intercranial pressure, in the absence of space-occupying lesions or vascular lesions, without enlargement of the cerebral ventricles, for which no causative factor can be identified.”

First Lawsuit

In 2016, the Southern District of New York dismissed a multi-district litigation of approximately 1,300 plaintiffs who claimed the Mirena caused injuries to the uterus or surrounding tissues. The trial court excluded all of the plaintiffs’ expert witnesses under Daubert because of numerous problems with their testimony. The U.S. Court of Appeals for the Second Circuit affirmed the dismissal and the United States Supreme Court denied the writ of certiorari.

Second Lawsuit

In the current suit, more than 800 women allege that Mirena causes idiopathic intracranial hypertension. The plaintiffs and Bayer agreed that the outcome of the suit would depend on the plaintiffs’ ability to prove general causation, or whether Mirena can cause intracranial hypertension, so the district court ordered expedited briefing on Bayer’s motions to exclude the testimony of the plaintiffs’ general causation experts.

Judge Paul Engelmayer of the U.S. District Court for the Southern District of New York excluded the testimony of all seven of the plaintiffs’ general causation experts. The court found that the expert testimony was inadmissible under the Daubert standard. The court said, “In brief, although plaintiffs’ experts in this litigation have now so opined, outside of this litigation, no medical organization, regulatory agency, article in peer-reviewed scientific literature, or other research has found that use of Mirena is a cause of IIH [idiopathic intracranial hypertension].”

In its 156-page ruling excluding the experts, the court examined the factual background of the Mirena product; LNG; IIH; risk factors and characteristics; the state of scientific research regarding the causes of IIH; and whether contraceptive devices that use LNG, like Mirena, can cause IIH. The court spent over 100 pages of the opinion examining each expert’s background, methodology and theories, and reviewed the extent to which each experts’ theories used the Bradford Hill criteria, or “the metrics that epidemiologists use to distinguish a causal connection from a mere association.”

Judge Engelmayer noted that several of the plaintiffs’ experts failed to adequately explain their conclusion that Mirena causes intracranial hypertension. He suggested that the failure of the experts to explain the weight that they gave to each of the Bradford-Hill factors was one of the reasons that he doubted the objectivity and reliability of their opinions.

Utah

Utah Supreme Court Reverses Murder Conviction Based on Psychologist’s Opinion that Deceased Did Not Commit Suicide

Did Shannon Lopez commit suicide or was she murdered? A Utah jury convicted her husband of homicide. The Utah Supreme Court reversed the conviction, in part, because the jury may have been influenced by improper expert testimony assessing Shannon as a low risk for suicide.

Facts of the Case

Komasquin and Shannon Lopez were both familiar with guns. Komasquin served in the military and worked in law enforcement, while Shannon was a recreational shooter. They kept multiple guns in their home and one in their car.

On the night of her death, Shannon consumed toxic levels of methamphetamine. She picked up Komasquin at work. Komasquin then began driving. Komasquin told the police that they argued about Shannon’s drug use and financial problems as they drove home.

Komasquin allegedly told the police that Shannon claimed she had packed a bag and planned to take the kids to her father’s home. Komasquin testified that he was the one who threatened to leave.

As they were driving, Shannon was shot in the head. Komasquin tried to turn the car around but crashed into another car. The position of her body and of a gun that the police found in the car was disputed.

At various times in the months before she died, Shannon threated to kill herself. She did so in a conversation with her son and in a text message to Komasquin. One threat specifically referenced an intent to shoot herself.

A medical examiner, a blood splatter analyst, and a gunshot residue analyst all testified for the prosecution. None of those expert witnesses could rule out suicide as the cause of death.

Testimony of Suicide Experts

Faced with inconclusive evidence of Komasquin’s guilt, the prosecution bolstered its case with the testimony of a clinical psychologist. Dr. Craig Byran specializes in the treatment of suicidal patients. He assesses suicide risk by using the Fluid Vulnerability Theory of Suicide (FVTS).

The FVTS model assumes that certain factors (including genetic and demographic factors) create a baseline risk of suicide, and posits that certain triggering events create an acute risk that an individual will commit suicide, but only if that individual has an elevated baseline risk.

Over a defense challenge, the court allowed Bryan to testify that Shannon’s behavior prior to her death was inconsistent with the behavior of people who commit suicide. The court did not allow Bryan to testify that his opinions were definitive or based on scientific certainty.

The defense countered with expert testimony that Shannon’s death was a “classic suicide.” Komasquin appealed his conviction on the ground that Bryan’s testimony was inadmissible.

Reliability of FVTS Assessment

Utah judges must determine whether an expert is qualified to render an opinion, whether the proposed expert testimony would be helpful to the jury, and whether the expert’s opinion is based on a reliable application of reliable principles or methods to sufficient facts or data. The reliability of principles or methods can be established by their general acceptance within a relevant scientific community or by other evidence of reliability.

Apparently lacking empirical evidence that the FVTS is reliable, the prosecution attempted to prove that the FVTS has been generally accepted by psychologists as a reliable means of predicting the risk of suicide. The prosecution pointed to Bryan’s testimony that psychologists rely on the FVTS when treating patients, and that identification of risk plus treatment has been shown to reduce suicidal behaviors.

That testimony did little to establish that the FVTS reliably assesses risk. Treating a population with suicide reduction therapies is likely to reduce suicidal behaviors among those who receive the treatment, but that tells us nothing about whether untreated individuals who are identified as low risk go on to commit suicide. Nor does it tell us whether an individual who has ingested toxic levels of methamphetamine might be more inclined to commit an impulsive suicide than a sober individual, regardless of other risk factors.

If people who commit suicide would always have been assessed as “high risk” while people who do not commit suicide would always be assessed as “low risk,” the FVTS might be a valid tool for predicting future behavior. However, the prosecution pointed to no studies establishing that people who are assessed as low risk never commit suicide.

Nor did Bryan discuss peer-reviewed studies or other evidence establishing that the relevant scientific community has accepted the FVTS for any purpose other than deciding whether to treat someone by using suicide prevention strategies. As the state supreme court recognized, the relevant question in this trial was whether the FVTS correctly assesses that a deceased individual committed suicide. Proving that FVTS “is generally accepted to establish a suicide risk in living patients is not the same thing as demonstrating that it is generally accepted to gauge whether a decedent died by his or her own hand.”

Sufficiency of Data

Finally, the court noted that data used in the FVTS is gathered in clinical practice by interviewing the patient. Bryan had no opportunity to interview Shannon before she died. Nor did he explain how he could accurately assess risk factors like “mood” or “positive outlook” without interviewing Shannon.

As the court pointed out in a shocking footnote, Bryan didn’t interview anyone. He based his opinion solely on information that had been carefully selected by the prosecution to support the conclusion that prosecutors wanted Bryan to reach. That methodology falls well short of basing opinions on reliable and sufficient data.

Given the prosecution’s failure to prove that Bryan’s opinions were based on reliable methods, the supreme court had no difficulty concluding that the evidence was inadmissible. And given that other evidence of whether Shannon committed suicide was ambiguous, the court concluded that Bryan’s inadmissible opinions may have influenced the guilty verdict. The court therefore ordered a new trial.

Risk Assessment Tools and the Helpfulness of Expert Testimony

The court could just as easily have applied a “helpfulness” analysis to arrive at the same result. Unless people who are assessed as low risk on the FVTS never go on to commit suicide, FVTS results cannot help the jury determine whether a death was caused by suicide or murder. If some low risk people commit suicide, the FVTS is not a helpful means of separating murder from suicide as a cause of death.

By their nature, risk assessment tools only tell us about relative risks within a population of people. They tell us nothing about how a single individual within that population will behave. For that reason, risk assessment tools might be useful for treatment purposes but are rarely reliable evidence of how a particular individual behaved or will behave in the future.

Harvard Library

Expert Economists Testify in Harvard Admissions Trial

Expert economists are offering testimony in the trial of Harvard University as it defends itself against allegations that its admissions quotas discriminate against Asian Americans.

The Lawsuit

Students for Fair Admissions, or SFFA, sued Harvard University in federal district court, alleging that the university set admission criteria that discriminated against Asian American students.

SFFA is a nonprofit association whose stated mission is “to defend human and civil rights secured by law, including the right of individuals to equal protection under the law, through litigation and any other lawful means.” Its true mission, according to Alex Beam, is to end racial preferences in college admissions and employment that provide greater opportunities for nonwhite applicants.

Members of SFFA applied to Harvard and were denied admission. They claim that Asian American students must outperform students from other minority groups in order to gain admission to Harvard. SFFA alleges that Harvard uses a “personal rating” system that is biased against Asian American students.

SFFA’s complaint against Harvard referenced its history of discrimination. SFFA noted that under Harvard’s president Abbott Lawrence Lowell (1909-1933), the Harvard administration restricted the numbers of Jewish students who were admitted to Harvard. SFFA alleges that the Harvard College Admissions Program plan that is currently used in the admissions process was created for the specific purpose of discriminating against Jewish applicants.

President of Harvard University Lawrence Bacow wrote a letter to the university community stating, “The College’s admissions process does not discriminate against anybody…. I am confident the evidence presented at trial will establish that fact. The Supreme Court has twice ruled on this issue and has held up our admissions process as an exemplar of how, in seeking to achieve a diverse student body, race may enter the process as one factor among many in consideration.”

Expert Economists

Harvard retained UC Berkeley economics professor David Card to serve as its expert witness at trial. Card determined that there was no evidence that Harvard intentionally discriminates against Asian American students. Card’s research indicated that if Harvard eliminated the challenged admission practice and the consideration of race, “the resulting class would have significantly fewer students who identify as Asian-American, Hispanic, or Other.”

Card concluded that there is no verifiable racial bias inherent in the use of personal ratings. His research showed that Harvard’s personal ratings included relevant data on the applicants’ non-academic attributes that are “not captured by other factors.” Card also concluded that there are no statistical models that can reliably estimate how race affects the personal rating.

Professor Peter Arcidiacono was retained by SFFA as their expert. Arcidiacono is a labor economist and Professor of Economics at Duke University. Arcidiacono concluded that Harvard’s admission process penalizes Asian American applicants. His report stated that “race plays a significant role in admissions decisions”; “Asian Americans are the primary group hurt by preferences given in Harvard’s Admissions Office”; there is an “artificial floor for African-American admit rates”; and, moreover, his “findings are consistent with Harvard’s own internal analyses before this lawsuit.”

SFFA also retained Richard Kahlenberg, a senior fellow at The Century Foundation and an author who has written several books on affirmative action. Kahlenberg’s report concluded that Harvard has failed to fully consider any of the numerous race-neutral alternatives that could achieve the educational benefits of diversity and that there are race-neutral alternative available that could provide Harvard with the educational benefits of diversity without the use of racial preferences.


By Joseph Williams (originally posted to Flickr as Harvard) [CC BY 2.0 ], via Wikimedia Commons

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Expert Testifies Police Killer May Be Linked to Extremist Group

An expert has testified that a man who is on trial for fatally shooting two Florida police officers may be tied to an extremist anti-government political group.

The Shooting

On August 18, 2017, Kissimmee Police Officer Matthew Baxter was on patrol when he approached three people to investigate a report of suspicious activity. One of the men, Everett Glenn Miller, recorded the confrontation on his phone.

In the video, Miller is seen telling Baxter, “Call your sergeant, please, sir. . . . Hey, call everybody up here. We ‘bout to put this on Facebook Live.”  Baxter is seen on video requesting Miller to, “Please come here.” Miller responded, “I’m not coming to you. You come to me.”

Baxter later called for his sergeant, Richard “Sam” Howard. A “scuffle” broke out and Baxter and Howard were shot in the head. Baxter died that night and Howard died the next day.

Deputies who arrested Miller reported that he appeared to be reaching for a gun before he was subdued. Miller was in possession of two handguns, including a revolver with six spent casings.

Miller is charged with two counts of first-degree murder, carrying a concealed weapon, and resisting without violence in connection with the deaths.

Expert Testimony

At a pretrial hearing, an expert witness on political and anti-government extremism testified for the prosecution. The expert testified that Miller’s beliefs are consistent with those of a group that the FBI has designated as extremist.

The expert said, “his beliefs are consistent with those of the Moorish movement, a loosely-knit group of related organizations that fall under the black identity extremist (B.I.E.) designation.” The expert also testified that Miller was using a name on social media that indicated his beliefs, Malik Mohammad Ali. The expert also said that she found notes in his car and books that indicated a link to the Moorish movement.

The expert referenced a now declassified FBI intelligence assessment titled “Black identity extremists likely motivated to target law enforcement officers.” She used the report to explain why the FBI believes the extremists seek to use force or violence in response to perceived racism and injustice in American society to establish a separate black homeland in the United States.

The expert listed Miller’s following actions as showing a link to the Moorish movement: his use of the #makeamerickkamooragain in social media, requesting a book about black superiority, and notes in his car that referenced Moorish leaders.

Since political beliefs are constitutionally protected, the court might ultimately exclude the evidence as more prejudicial than probative of guilt. The court might conclude that the expert’s testimony is designed to prove guilt by association or that it is likely to inflame the jury’s passions. Political beliefs in themselves do not establish that everyone who shares those beliefs has an incentive to commit murder.

Miller’s next court hearing is scheduled for November, with a trial that could begin in early 2019.

Miller’s Background

Miller is a former Marine whose background reportedly includes intelligence analysis during Operations Noble Eagle, Enduring Freedom and Iraqi Freedom while working with the United States Special Operations Command.  While enlisted as a Marine, Miller was stationed in Tampa, North Carolina and Okinawa, Japan.

Miller’s neighbor, Cartrell Bright, commented that he was heartbroken about Miller’s arrest and that he had shown signs of mental illness.  Bright said, “He’s sick. . . . He just lost his mind or something.”