Category Archives: ExpertWitness

Blood analysis

Blood Spatter Expert Admits Conclusions Incorrect

The expert whose testimony was key in a 1985 murder conviction now says that he believes some of his conclusions were incorrect.

Murder Conviction of Joe Bryan

Joe Bryan was convicted of killing his wife Mickey in 1985, but has always maintained his innocence.  At the time of his arrest, Bryan had no criminal record. In the days surrounding his wife’s murder, Bryan had been 120 miles away at a principals’ convention. According to the state’s theory, Bryan had left his hotel in the middle of the night, drove home and shot his wife, then returned to his hotel and his convention the following morning.

During both of Bryan’s trials, police Detective Robert Thorman’s testimony was key in helping to explain why no blood was found inside Bryan’s car. Thorman testified that the tiny flecks of blood on a flashlight that was found in Bryan’s trunk were “back spatter,” a pattern that indicated a close range shooting. Thorman’s testimony tied the flashlight to the crime scene, when he opined that the killer had likely held the flashlight in one hand while firing a pistol with the other.

Thorman was a police detective from Harker Heights, Texas, who had only had 40 hours of training in bloodstain-pattern analysis when he was called to consult on Bryan’s case.

Innocence Investigation

In May, Bryan’s case was the subject of an investigation by ProPublica and the New York Times Magazine that questioned the accuracy of the bloodstain-pattern analysis that was used to convict him.

Last month, the Texas Forensic Science Commission announced that the blood-spatter analysis that was used to convict Bryan was “not accurate or scientifically supported.” The commission is an organization that investigates complaints about the misuse of forensic testimony and evidence and criminal cases.

The commission asked bloodstain-pattern analyst Celestina Rossi to re-examine the case. Rossi was critical of Thorman’s interpretation of the crime scene and the flashlight. Rossi determined that the dark-brown flecks that were found on the flashlight did not “radiate back in a radiating pattern” as they would have in “a back-spatter event.” Therefore, she concluded that the bloodstains were inconsistent with a close range shooting.

Rossi said, “Thorman’s testimony was egregiously wrong. . . . If any juror relied on any party of his testimony to render a verdict, Mr. Bryan deserves a new trial.” Thorman’s “expert” testimony is another example of how police officers who dabble as “experts” often see themselves as advocates who seek convictions rather than neutral experts who seek the truth.

Affidavit Recanting Testimony

Bryan’s defense team filed a motion for a new trial. At a hearing on the motion, Bryan’s attorney Jessi Freud presented an affidavit for Robert Thorman recanting his testimony.

Thorman’s affidavit stated, “Some of the techniques and methodology were incorrect. Therefore, some of my testimony was not correct.” Thorman stated, “In no way did I lie in my report or testimony. . . . I was doing what I thought was correct as a result of my training at the time.” Thorman’s affidavit did not specify which portions of his testimony were erroneous.

The motion is before Judge Doug Shaver who will make a recommendation to the Court of Criminal Appeals as to whether Joe Bryan should get a new trial.

Arizona Legal System Concept

Forensic Scientists, Medical Examiner, Print Expert Testify in Trial for Murder of Slain Couple

A group of expert witnesses has testified in the ongoing murder trial of Derrick Barnett, who is accused of killing an Arizona couple in May 2017.

The Killing

On May 2, 2017, the husband of a friend of Nora Dimuria went to her home to do a welfare check when she failed to show up for work. When the man arrived at her home, a contractor was pulling up to the home at the same time. The two approached the home and found a broken window and open back door.

Upon entering the home, the men found a dead dog in the kitchen and Nora’s body in the bathroom next to the kitchen. The two left the house and called 911.

The responding deputies found Michael Dimuria’s body under two throw rugs outside the guest house. They found bullet casings near both bodies and bullet holes in several walls and in a window.

Neighbors who were interviewed reported that they hurt gunshots in the night, but had not been concerned because target shooters are common in the area.

The Arrest

The Coconino County Sheriff’s Office received a tip about Derrick Barnett’s possible involvement with the killing.

Barnett was indicted on August 3, 2017 on two counts of first degree murder, one count of first degree burglary, one count of theft, three counts of misconduct involving weapons, one count of cruelty to animals, one count of theft as a means of transportation, and one count of felony criminal damage. He pled not guilty to all charges.

Trial Testimony

At trial, numerous expert witnesses provided key testimony.

Brandon Nabozny, a specialist in forensic photography, crime scene, latent prints, and forensic chemistry, was called to provide detailed analysis of the evidence that was collected at the Dimuria home following the murders. Nabozny testified about the tools that were found in the home, including hammers, a chisel, and bolt cutters. He also identified fragments found as broken glass and fragments from firearms. Nabozny identified a glass candy jar and wrappers that were used to detect DNA presence.

Dr. Larry Czarnecki, Coconino County Medical Examiner, testified about the causes of death for Michael and Nora and their dog T.C. Czarnecki has been a medical examiner for 13 years. He testified that he typically performs exams away from the scene of the crime, but had to come to the Dimuria home because the suspect was still at large. Czarnecki testified that the dog had been shot at the top of the head and a bullet was lodged in the front of the neck. He said that it was likely a .22-.25 caliber bullet. Czarnecki said that Michael had suffered three gunshot wounds to the head, which were the ultimate cause of death. Czarnecki testified that Nora also died from gunshot wounds.

Kristen Dick, a forensic scientist with the AZDPS Northern Regional Crime Lab testified that she assisted with the crime scene. Dick testified that Barnett’s DNA matched all 23 locations taken from the Jeep Liberty steering wheel and gear shift. Barnett’s DNA was also found on a water bottle found in the jeep and a plastic spoon found on his campsite.

Starr Douglas, a latent print expert with the Arizona DPS testified that she examined over 16 items and made positive identifications on four of them. One item, a 9mm handgun, had Barnett’s fingerprints on it.

Buccal DNA

DNA Experts Provide Key Testimony in Rape Trial

Two DNA experts provided key testimony in the trial of Samuel Lee Lowry, a Pennsylvania man on trial for the rape of an unconscious person.

The Incident

In November 2014, a 26-year-old woman awoke in her apartment to find a naked man on top on her. The victim says that when she realized the person in her bed was not her boyfriend, she screamed and told him to get off of her and get out. She then grabbed her shotgun and pointed it at him.

The victim testified that the man turned on the light and got dressed and was looking for his shoes. When the man turned on the light, the victim recognized him by his nickname, “Duke,” from seeing him in her neighborhood. The victim said that months before, the man had knocked on her door and asked to sleep on her couch when it was raining and she had allowed him.

Lowry, 36, is accused of entering a woman’s apartment when she was sleeping, removing his clothing, climbing into her bed and attempting to have sex with her. Lowry was charged with burglary, rape of an unconscious person, sexual assault, indecent assault of an unconscious person, criminal trespass, and aggravated indecent assault.

Trial Testimony

At trial, Lowry chose not to take the stand in his own defense. Instead, two DNA experts provided key testimony at trial.

The prosecution retained Julia Garofalo as an expert. Garofalo is a forensic scientist and DNA expert who works at a state police crime lab in Greensburg, Pennsylvania. Garofalo analyzed the victim’s rape kit results for DNA. She testified that Lowry’s DNA was present on some of the samples taken from the woman’s neck and other areas. Garofalo testified that the crime lab received buccal swabs, which are samples from inside the cheeks of the woman, her boyfriend, and Lowry. Lowry’s DNA was most prevalent on the woman’s neck, which matched her story that she had awoken to Lowry on top of her, licking her neck.

The defense hired Dr. James Girard, a professor of chemistry at American University in Washington, D.C.  Defense counsel called Dr. Girard via Skype to explain an analysis of Garofalo’s report.

The Verdict

A jury of seven men and five women convicted Lowry on the charges of rape of an unconscious person, sexual assault and indecent assault of an unconscious person. The jury acquitted Lowry of the burglary charge.

Lowry’s sentencing hearing will be held at a later date. Sentencing guidelines call for Lowry to serve 8.5 to 20 years in prison. Lowry has two other felony cases pending against him in other courts. His other cases involve aggravated assault of a police officer and escape and a burglary and car theft.

Assistant district attorney Jonathan Miller said, “The district attorney’s office and the commonwealth are pleased with the jury’s verdict in this case … (they) returned a verdict that gave justice to the female adult victim for the crimes perpetrated against her.”

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. Some 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

The Superior Court concluded 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. That conclusion is inconsistent with the general consensus that standard of care opinions may be based on an expert’s experience rather than studies that may never have been conducted.

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 testified 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.”

Update

The jury found Oliver guilty of murder. The jury acquitted Oliver of two counts of aggravated assault for shooting into a car filled with teens. The verdict is one of the few that juries have returned against a white police officer who shot and killed an unarmed black victim.

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 who 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

District Attorney Dan Dow justified his decision not to prosecute a member of his staff for perjury by contending that Nix “believed she had a degree” because she had participated in the Cal Poly commencement ceremony. Dow make the remarkable suggestion that, “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’s statement is apparently based on the belief that many Cal Poly students do not know the difference between participating in a ceremony and earning a degree.

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 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.” Defense attorneys in most cases are likely to conclude that an expert’s false testimony about her credentials is a significant issue that warrants a new trial.

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 Florida’s RICO Act (Racketeer Influenced and Corrupt Organizations Act). The Florida RICO Act is the state version of 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 enterprise.

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.” How the Bloods and the Crips are relevant to a Florida motorcycle gang is unclear.

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. How hearsay testimony from a non-testifying, unidentified informant is admissible is again unclear. Daniels also explained about the police department’s use of social media, surveillance, and confidential informants to investigate the Lake Boyz.

Verdict

A jury found all four defendants Not Guilty. The verdict should be a reminder that calling an expert as a witness will backfire when the expert knows nothing about the relevant facts of the case. Lawyers should always choose their experts wisely.

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.”