A judge has approved a forensic consultant as an expert witness in the case of a Wisconsin man that is accused of killing his wife in 1982.

The Crime

On April 28, 1982, the body of 33-year-old Barbara Mendez was found at the Park City Credit Union where she worked. Barbara’s body was found bludgeoned to death. According to court documents, Barbara died from multiple blows to her head that likely came from a pry bar. 

Barbara’s husband’s family worked in the furniture business and frequently used pry bars in their work. A member of the family turned a pry bar in to the police in 2003.

At the time of Barbara’s death, no charges were brought. Years later, Barbara’s daughters wrote to the television show Cold Justice, asking them to look into the case. Cold Justice ran a segment on the case and did an additional investigation. 

The 2018 episode followed Steve Spingola, a former lieutenant detective with the Milwaukee Police Department, and prosecutor Kelly Siegler, who worked in the Harris County, Texas district attorney’s office for over 21 years. Singola and Siegler worked with local law enforcement and reviewed reports to investigate the unsolved crime.

Court documents show that Mendez began having a sexual relationship with a 14-year-old girl the summer before his wife’s murder. Mendez told the girl that he wanted to marry her, but he couldn’t because the church did not approve of divorce. On the night of his wife’s death, Mendez reportedly saw the girl and told her that he was “footloose and fancy free now.” Mendez also coached the girl and his two daughters to lie to the police. 

As a result of the Cold Justice investigation, Oneida County District Attorney Michael Schiek recommended that Robin Mendez be charged. Mendez was charged with first-degree intentional homicide.

Tool Mark Analysis Expert Witness

Mendez waived his right to a jury trial. His trial will be held before Oneida County Circuit Court Judge Jill Falstad in April. The prosecution filed a motion requesting forensic Christopher Robinson to be allowed as an expert witness. 

Robinson is a forensic consultant who has over 20 years of experience in the forensic field. He spent over 12 years in law enforcement with the Georgia Bureau of Investigation as a firearms examiner and with the Atlanta Police Department as a Director of the Atlanta Police Crime Lab. Robinson has been called by both prosecution and defense to provide expert testimony in the areas of: firearms and tool mark examination, shooting reconstructions, gunshot residue analysis, blood spatter analysis, and crime scene reconstruction. He has provided testimony in state and federal courts in Georgia, Florida, South Carolina, Iowa, Louisiana, Tennessee, Mississippi, Virginia, Missouri, Kansas, Alabama, Minnesota, and Alaska. Robinson has worked on cases involving unintentional discharges of firearms, police shootings, homicides, suicides, and assaults.

One of Robinson’s areas of expertise is tool mark analysis, which is the process of examining the marks left at a crime scene and a tool that is believed to have been used in a crime to see if a positive match can be achieved. Tool mark analysis is controversial because no scientific studies validate tool mark analysis and no standardized protocol allows examiners to determine whether a particular mark came from a particular tool.

Judge Falstad approved Robinson as a witness.

Nancy Little sued The Budd Company in a Kansas federal court, alleging that Budd manufactured and sold railroad cars that caused her father’s mesothelioma. Little’s father worked for a railroad. For many years, he was exposed to pipe insulation that contained asbestos.

The Budd Company moved to exclude the testimony of two expert witnesses. Dr. Arnold Brody was offered as an expert in general causation. Dr. Barry Castleman was offered as an expert in industry knowledge of the risks of asbestos. Budd made no challenge to the testimony of the pathologist Little planned to call to prove specific causation.

The court denied the motion to exclude Dr. Brody’s testimony. The court generally allowed Dr. Castleman’s testimony about industry awareness but did not allow him to testify about the specific knowledge that Budd may or may not have had about the health risks associated with asbestos.

Dr. Brody’s Expert Opinion

Dr. Brody is a professor of pathology who has focused his research on how asbestos causes lung disease. Dr. Brody’s report examined tests of animals that inhaled asbestos and demonstrated that asbestos fibers inhaled by humans and by animals come to rest in the same part of the body. Dr. Brody also demonstrated that the cells affected by asbestos fibers are the same in both animals and humans.

Dr. Brody’s expert report explains how asbestos fibers cause mesothelioma. The report explains that repeated exposures to asbestos increase the likelihood of developing mesothelioma, and that each exposure above background level contributes to the development of the disease. Exposure to asbestos is the only known cause of mesothelioma.

Dr. Brody explained that no exposure can be excluded as a cause of mesothelioma. The consensus of scientific opinion is that no exposure above background levels is too low to induce mesothelioma.

Relevance of Dr. Brody’s Opinion

Budd did not challenge Dr. Brody’s qualifications to render an expert opinion. It instead contended that his opinion was irrelevant and unreliable. Budd’s relevance objection was based in part on the fact that Dr. Brody did not assess the impact of asbestos inhalation on Little’s father. However, since Dr. Brody was offered as an expert in general causation — that is, whether asbestos inhalation is capable of causing mesothelioma — his unfamiliarity with Little’s father did not affect the relevance of his opinion.

Budd also claimed that Dr. Brody’s opinions were not relevant because they were based on animal testing rather than human testing. Since Dr. Brody explained that animals and humans share the same cells that are affected by asbestos, and since researchers cannot ethically induce mesothelioma in human test subjects, animal testing was a reliable substitute for human testing. Budd’s objections went to the weight of Dr. Brody’s testimony rather than its admissibility.

Reliability of Dr. Brody’s Opinion

Budd claimed that Dr. Brody would testify that every inhalation of asbestos fibers above background exposure could cause mesothelioma. Budd argued that there is no known threshold of exposure that causes mesothelioma, rendering Dr. Brody’s opinion unreliable.

The court rejected Budd’s argument because it mischaracterized Dr. Brody’s opinion. Dr. Brody’s report explained that there is a dose-response relationship between asbestos and mesothelioma. The more asbestos a person inhales, the more likely it is that the person will acquire mesothelioma.

Once a person acquires mesothelioma, however, it is not possible to exclude any exposure as a causative factor, because each exposure contributes to the disease. No exposure above background levels is “too low” to contribute to the disease, so every exposure must be viewed as adding to the total dose of asbestos that caused a patient’s mesothelioma.

The court differentiated Dr. Brody’s testimony about general causation from testimony that a specific exposure to asbestos was a substantial cause of a specific individual’s mesothelioma. Since Dr. Brody’s testimony explained the disease process and did not address specific causation, and since his testimony was based on widely-accepted scientific research, the testimony was reliable and therefore admissible.

Little planned to call a pathologist to provide an expert opinion regarding specific causation. Budd complained that Dr. Brody’s testimony was therefore cumulative and unnecessary. Given that toxic tort defendants have spent years convincing courts that plaintiffs must prove both general and specific causation, it seems disingenuous to argue that it is cumulative to call separate experts to prove those separate facts. The court denied the motion to exclude Dr. Brody’s testimony.

Dr. Castleman’s Expert Opinion

Dr. Castleman has a Doctor of Science degree in Health Policy. He has conducted comprehensive research into asbestos as a public health problem. His report reveals that the railroad industry knew by the 1930s that asbestos was a lethal material and knew by the 1940s that inhaling asbestos could cause lung cancer.

Budd asserted a “state of the art” affirmative defense. It intended to prove that its railroad cars were as safe as they could have been at the time of their manufacture. Little proposed to call Dr. Castleman as a rebuttal witness to refute that defense.

Challenges to Dr. Castleman’s Testimony

The court rejected Budd’s argument that Dr. Castleman’s testimony would confuse the jury and waste time. Budd placed the state of the art in issue by raising the affirmative defense. Little was entitled to introduce evidence to counter that defense.

Budd argued that Dr. Castleman is not a medical doctor and is thus unqualified to interpret the literature upon which his opinion is based. However, Dr. Castleman did not propose to offer diagnostic or causation testimony. As an expert in public health, he was well qualified to explain “the historical development of knowledge regarding the health hazards of asbestos.” The court recognized that an expert does not necessarily need a medical degree to understand medical literature.

The court agreed with Budd that Dr. Castleman had no specific knowledge about what Budd actually knew about the health risks of asbestos when it built the railroad cars. The court cited cases suggesting that Dr. Castleman should not be allowed to testify about what Budd “should have known,” but since Dr. Castleman was allowed to testify about publicly available knowledge, his testimony would certainly allow the jury to infer that Budd should have known about the dangers of asbestos, even if Dr. Castleman cannot articulate that inference himself.

Finally, Budd argued that Dr. Castleman cannot establish that the medical articles upon which he relied were reliable. Dr. Castleman did not propose to vouch for the reliability of the studies. Published studies are nevertheless relevant to the state of knowledge about disease processes. Since medical studies are the type of data that experts in public health routinely rely upon in discussing the progress of medical knowledge, Dr. Castleman was entitled to use them as the basis for his expert opinion.

A murder defendant’s case was damaged by the testimony of his own expert witness.

The Crime

On November 16, 2015, Edith “Edie” Black-Scherer was found on the floor with a pillow wedged between the bedframe and her face. Black-Scherer is believed to have been killed by the ligature made with the drawstring of her sweatshirt, by strangulation with hands, and suffocation with a pillow. Black-Scherer was taken off life support five days later.

Black-Scherer, 45, was the mother of two children and a recently published author at the time of her death.

Black-Scherer’s husband, Axel Scherer, was implicated in her death. Scherer was charged with murder in connection with his wife’s death. Scherer admitted that he strangled his wife, but claimed mental illness as a defense.

The Trial

At trial, Prosecutor James Gubitose argued that mental illness alone was not enough to absolve Scherer of responsibility for the murder of his wife. Gubitose told the jury, “Millions of people in the United States suffer from mental health issues. . . . Does that mean they’re all not criminally responsible and can do whatever they want?” Gubitose argued that Scherer “knew what he was doing. . . . Every credible piece of evidence shows you that.”

Scherer’s own expert witness, psychologist Mark Schaeffer, provided the most damaging piece of evidence. Schaeffer testified that there was no evidence that Scherer was psychotic at the time that he strangled and smothered his wife. Schaeffer also conceded that there was no evidence that Scherer was psychotic at any point during 2015.

Gubitose pointed out that, “Dr. Schaefer even said he could appreciate the wrongfulness of his actions. . . . He knew what he was doing was wrong, according to the expert hired to help him. He was thinking clearly enough to understand that what he was doing when he was killing Edie was wrong.”  Gubitose also took issue with the fact that the expert had decided not to listen to the recording of the interview with the police before he concluded that Scherer was not criminally responsible.

Scherer’s defense attorney, Michael Phelan, argued that “If Axel Scherer wasn’t mentally ill, Edith would be here today.” He told the jury that his client had suffered from bipolar disorder in 2013 and 2014 and that he had been hospitalized in a manic state with psychotic features. Phelan said, “Clearly, there’s something going on with Mr. Scherer at this time.”

Phelan urged the jury to consider Scherer’s medical records from jail, where he reported delusions and hallucinations two months after the killing. Additionally, a court clinic psychologist believed that Scherer was psychotic on the day of his arraignment in January 2016. Phelan said that the prosecution’s theory of the case “defies logic” and that Scherer had no benefit to gain from the killing of his wife.

The Sentencing

Scherer, 48, was convicted of second-degree murder. He will receive life in prison, but become eligible for parole sometime after serving 15 years. Scherer will be sentenced by Salem Superior Court Judge James Lang at a hearing on February 26.

Robert Morris sued Consolidated Rail Corporation for exposing him to vinyl chloride, a toxic chemical. Morris suffered no long-term physical harm, but sued for expenses he alleged he would incur to monitor his medical condition and for emotional distress. The emotional distress claim was based on his fear that the exposure would cause cancer later in his life.

The trial judge excluded evidence from Morris’ expert witness regarding his need for medical monitoring and fear of cancer. The jury agreed that Consolidated had exposed him to a toxic chemical but, in the absence of evidence that his harm was more than temporary discomfort, awarded him only $500 in damages. The Court of Appeals for the Third Circuit affirmed the trial court’s decision to exclude the expert testimony and thus affirmed the $500 judgment.

Facts of the Case

The lawsuit arose after a freight train derailed while crossing a bridge in New Jersey, releasing about 20,000 gallons of vinyl chloride into the atmosphere. The National Cancer Institute explains that vinyl chloride “is associated with an increased risk of a rare form of liver cancer (hepatic angiosarcoma), as well as brain and lung cancers, lymphoma, and leukemia.”

The train apparently derailed because the swing-span bridge was not in a locked position. In the year before the accident, the National Transportation Safety Board received 23 complaints from train crews about the failure of the bridge to close and lock. Consolidated owned the bridge and the train that derailed while crossing it.

Morris was enveloped by a cloud of vinyl chloride after the derailment. He sued Consolidated and retained Dr. Omowummi Osinubi to determine whether he had any medical conditions associated with the exposure and whether he would benefit from a medical monitoring program.

Dr. Osinubi prepared an expert report. He concluded that Morris faced an increase in the risk of liver cancer due to his exposure to vinyl chloride and that annual weight-loss and lifestyle coaching would reduce that risk.

Consolidated moved to exclude Dr. Osinubi’s testimony on the ground that it was not supported by a reliable methodology. The trial court granted the motion. While Consolidated also argued that Morris could not prevail at trial without Dr. Osinubi’s testimony, the trial court allowed the case to proceed to trial based on Morris’ own testimony concerning the pain and suffering that resulted from his exposure to a toxic chemical.

Daubert Hearing

The trial court conducted a Daubert hearing before excluding Dr. Osinubi’s testimony. For reasons that are not made clear in the appellate opinion, Dr. Osinubi did not attend the hearing. The outcome of the case may have been different if Dr. Osinubi had been present to defend his methodology.

Consolidated relied on the testimony of its own expert, Dr. Douglas Weed, who agreed that exposure to vinyl chloride increases the risk of liver cancer, but faulted Dr. Osinubi’s report for not making clear that it only increases the risk of a specific type of liver cancer.

More problematic is that Dr. Osinubi’s report relied on data about the increased cancer risk caused by chronic exposure to vinyl chloride, while Morris was exposed to vinyl chloride only once and for a short period of time. Dr. Weed opined that the specific kind of liver cancer caused by vinyl chloride exposure only results from prolonged exposure to higher levels of of the chemical than Morris experienced.

Dr. Weed complained that Dr. Osinubi’s report failed to reveal that Dr. Osinubi reviewed scientific literature and failed to explain what criteria, if any, she relied upon in rendering her opinion. Dr. Weed faulted Dr. Osinubi’s methodology as “devoid of reliability” and contended that her opinions amounted to personal subjective views rather than reliable scientific evidence.

Appellate Opinion

The Court of Appeals rejected Morris’ argument that the trial court departed from its gatekeeping role when it declared its intention to make sure that the toxic chemical exposure caused Morris’ injuries. The Court of Appeals concluded that Morris took that comment out of the context provided by the entirety of the trial judge’s remarks during the Daubert hearing.

The trial judge stated that he was not attacking Dr. Osinubi’s opinions but was asking whether she used a recognized method to arrive at those opinions. The trial court based its decision on the absence of any study linking short-term exposure to vinyl chloride to an increased risk of liver cancer. In her deposition, Dr. Osinubi admitted that no such studies existed.

The Court of Appeals thought it was significant that Dr. Osinubi failed to consider more than forty studies that Dr. Weed brought to the court’s attention. The downside to not having Dr. Osinubi present during the hearing was that Morris had no way to explain whether Dr. Osinubi made a reasonable and considered decision not to rely upon those studies. Morris’ counsel could only tell the court that Dr. Osinubi was never asked about the studies during her deposition — a response that failed to explain whether the studies were, in fact, relevant to the legitimacy of Morris’ fear of cancer.

Since Dr. Osinubi had no scientific evidence that Morris’ short-term exposure to vinyl chloride elevated his cancer risk, the trial court concluded that there was no basis for Dr. Osinubi’s belief that Morris required medical monitoring in the future. And since New Jersey law requires expert evidence to establish that a fear of enhanced risk of contracting a future disease is reasonable, there was no basis for Morris’ claim that he suffered emotional distress based on a fear of future injury.

Judgment Affirmed

Of course, victims of chemical exposures who are not doctors or environmental scientists might reasonably fear the future onset of cancer after reading on a government website that vinyl chloride causes cancer. The fact that studies show a correlation between chronic exposures and an elevated risk does not rule out the possibility that a short-term exposure might also cause cancer. That possibility might produce a legitimate fear that leads to emotional distress. Without any serious discussion of the issue, the appellate court apparently assumed that a fear of a future health consequence is not reasonable unless studies establish that the health consequence is likely to occur.

In the absence of a reliable methodology to establish that the exposure caused Morris any harm, the trial court affirmed the exclusion of Dr. Osinubi’s testimony. The court also affirmed the judgment, rejecting Consolidated’s argument that Morris was not entitled to a trial in the absence of expert evidence. Stipulated facts allowed the jury to conclude that any exposure to vinyl chloride can irritate eyes, affect respiration, and cause other short-term symptoms. A government report established that many people exposed to the toxic cloud had difficulty breathing after the train derailment.

Coupled with Morris’ own testimony about eye irritation, headaches, dizziness, vomiting, and a burning sensation on his skin immediately following exposure to the cloud of vinyl chloride, the jury had objective evidence upon which to base a finding that the vinyl chloride caused pain and suffering to Morris. Since objective evidence supported that finding, New Jersey law did not require expert testimony to establish causation of effects that immediately followed the exposure.

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.

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.

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.

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.

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.

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.