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

The Shooting

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

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

Expert Testimony

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

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

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

Update

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

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

The Crime

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

The Trial

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

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

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

Cross-Examination

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

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

Update

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

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

Zaevion Dobson Murder

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

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

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

Charges Filed

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

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

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

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

Rap Evidence

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

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

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

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

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

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

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

Gang Expert Testimony

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

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

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

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

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

Rap Expert Testimony

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

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

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

Verdict

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

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

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

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

Virginia State Bar Criminal Discovery Reform Task Force

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

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

Reactions to Proposed Changes

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

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

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

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

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

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

The Shooting

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

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

Trial Testimony

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

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

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

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

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

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

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

Hung Jury

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

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

Conviction

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

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

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

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

Appeal

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

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

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

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

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

The Crimes

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

The Motion

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

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

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

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

The Texas Court of Appeals recently affirmed a trial court decision that excluded an expert’s “standard of care” testimony in a medical malpractice case. In what has become a disturbing trend, the expert was not allowed to testify despite his eminent qualifications and obvious knowledge. A jury will therefore never decide whether a patient who may have been injured by negligent care is entitled to compensation.

Wigley’s Lawsuit

After being seriously injured in a car accident, Stanley Wigley was taken to Shannon West Texas Memorial Hospital. His life was saved by surgeons, but spinal injuries in the accident rendered him a quadriplegic. Wigley was transferred to the Intensive Care Unit (ICU), where he was placed on a ventilator. He could not eat or move for an extended time.

Wigley’s primary physician was Dr. Emmette Flynn. During his time in the hospital, Wigley developed pressure ulcers, commonly known as bedsores. After his release, Wigley sued the hospital and Dr. Flynn, alleging that the ICU nurses and Dr. Flynn negligently failed to prevent the pressure ulcers from developing.

Wigley designated Dr. Lige Rushing, Jr. as his expert witness. After reviewing Dr. Rushing’s report and taking his deposition, the defense moved to exclude Dr. Rushing as an expert witness. The defense also filed for summary judgment, contending that without Dr. Rushing’s testimony, there was no evidence of negligence. The trial court agreed and dismissed the case.

Medical Malpractice Expert Standard in Texas

As have many other states, the Texas legislature has narrowed the range of experts who can provide admissible testimony about the standard of care that physicians and hospitals should provide. Under Texas law, an expert in a medical malpractice case cannot express an admissible opinion about whether a healthcare provided departed from the accepted standard of medical care unless:

• the expert was practicing medicine when the claim arose or when the expert testifies;
• the expert’s field of practice during either of those times involved the “same kind of care or treatment” delivered by the defendant;
• the expert has knowledge of the accepted standard of care; and
• the expert is qualified by training or experience to render an opinion.

The last two standards are traditional, uncontroversial, and adequate safeguards to assure that expert witnesses really are experts. The question here was whether Dr. Rushing satisfied the first two standards.

Dr. Rushing’s Qualifications

Dr. Rushing was board certified in the practice of internal medicine, rheumatology, and geriatrics. Under traditional principles governing the admissibility of expert witnesses, that training and experience would be sufficient to permit an expert to testify about how bedsores should be prevented, particularly if the expert had experience treating patients who are at risk of developing pressure ulcers.

Dr. Rushing’s report indicated that he had provided primary care to ten thousand hospital, nursing home, and assisted-living facility patients. His report indicated that he had treated patients in substantially the same condition as Wigley who were at high risk for the development of pressure ulcers. Under traditional principles governing the admissibility of expert witnesses, that background would certainly qualify Dr. Rushing to give expert testimony about the standard of care that should be followed to prevent the formation of pressure ulcers.

Dr. Rushing opined that an appropriate standard of care should assure that a patient does not develop pressure ulcers unless they are unavoidable, and should require immediate treatment of unavoidable pressure ulcers. Dr. Rushing concluded that Wigley’s condition did not make pressure ulcers unavoidable. He opined that the defendants breached the appropriate standard of care by failing to prevent his pressure ulcers, by failing to have an effective pressure ulcer prevention program, and by failing to keep appropriate documentation.

Appellate Court Ruling

The appellate court noted that Dr. Rushing is “generally familiar with pressure ulcers,” which appears to be a vast understatement. However, the court found no evidence that Dr. Rushing was “familiar with the prevention or treatment of pressure ulcers in a treatment or ICU context.” The court also noted that Dr. Rushing testified that he does not “hold himself out as an expert in critical care.”

The appellate court ruled that the trial court “was not required to infer from Dr. Rushing’s general familiarity with pressure ulcers in other contexts that he is qualified to address pressure ulcers that develop in a trauma and ICU context.” But pressure ulcers develop because a patient isn’t moved. The court used “context” to mean “location of the patient’s bed within a hospital,” but whether the patient is in an ICU bed or any other hospital bed would not change the reason pressure ulcers develop.

The court suggested no reason for believing that the means of preventing a pressure ulcer in an ICU differs from the means of preventing a pressure ulcer in any other hospital or nursing home setting. The court’s reasoning seems to be based on a distinction without a difference.

Nor did the court identify any way in which Dr. Rushing failed to satisfy the Texas statutes that determine the admissibility of expert opinions rendered in medical malpractice cases. Dr. Rushing was practicing medicine, he had knowledge of the standard of care for assuring that bedridden patients do not develop pressure ulcers, and he was qualified by training and experience to render an opinion.

The court may have concluded (but did not expressly hold) that Dr. Rushing’s practice did not involve the “same kind of care or treatment” delivered by the defendants. However, the relevant care was the treatment of bedridden patients to prevent bedsores, and Dr. Rushing clearly rendered that kind of care to his patients. The fact that he did not do so in an ICU has no obvious relevance to the “kind of care or treatment” he rendered.

Disturbing Trend

This case follows a disturbing trend that prevents juries from deciding whether a health care provider should be held responsible for injuries that patients clearly suffered. ExpertPages recently discussed a similar Arizona case that decided a registered nurse who was certified in wound care and who worked as a wound care coordinator was not qualified under Arizona law to testify about the standard of wound care that ICU nurses should have provided to a patient with a pressure wound.

The Arizona court prevented a jury from considering a claim in which negligence seemed obvious, but the decision was arguably based on Arizona statutes. In Wigley’s case, the expert appears to have satisfied all statutory criteria for admissibility.

The trend that holds medical malpractice plaintiffs to impossible standards when they search for expert witnesses is unfortunate. Excluding helpful testimony from qualified witnesses weakens the jury system by preventing juries from deciding whether patients have been injured by allegedly negligent healthcare providers. That harms the civil justice system as well as injured patients.

The Delaware State Police’s primary firearms expert, Carl Rone, has been suspended and will not be called as a witness in court until further notice. Attorneys are concerned about the effect of this suspension of current and past cases.

Firearms Expert Carl Rone

Carl Rone is the primary firearms examiner for the Delaware State Police in its Forensic Firearms Service Unit. This department assists all Delaware law enforcement entities with its investigations. Rone began this work in late 2006  Rone retired from the Philadelphia Police Department in 2007.

Rone’s role has included serving as a witness in court for state prosecutors, providing analysis such as matching casings with firearms, mapping bullet trajectory, and interpreting gunpowder residue at crime scenes.

Suspension Announcement

State Prosecutor Sean P. Lugg of the Delaware Department of Justice announced Rone’s suspension in a letter to defense attorneys that also indicated that Rone would not be called as a witness “until further notice.”

Sergeant Richard Bratz, spokesperson for the state police, stated that the suspension was a “personnel matter pending to determine if there was any violations of our policies.” Department of Justice spokeswoman Nicole Magnusson released a statement saying that, “Presently, DOJ has no additional information concerning this Delaware State Police personnel matter. . . . For this reason, the impact of the suspension is not currently known, but no verdicts or pleas have been overturned or abandoned at this point.” Of course, keeping the reason for the suspension secret would seriously hamper the ability to challenge verdicts or pleas that were based on Rone’s opinions.

Chief public defender Brendan O’Neill released a statement saying that “We do not know the details or reason for the suspension, but we do have concerns about the impact this may have on pending and past litigation.” If Rone’s suspension is unrelated to his work on past cases, it would likely only cause a delay in pending trials. However; if Rone’s suspension calls his processing or interpretation of evidence into question, it could also have a serious impact on past cases that have involved Rone.

The Delaware criminal justice community is especially concerned with the way Rone’s suspension could affect cases after a drug lab scandal had widespread impact on cases a few years ago.

Drug Lab Scandal

In January 2014, a Delaware State Police trooper opened up a sealed evidence envelope while he was on the stand. The envelope was supposed to contain 64 blue Oxycontin pills, but instead contained 13 pink blood pressure pills. That case ended with a plea agreement and the defendant going free.

A subsequent investigation of the Controlled Substances Lab in the Office of the Chief Medical Examiner revealed gross mismanagement and lack of security, which led to at least 55 pieces of drug evidence being stolen or tampered with between 2010 and 2014. Management was ousted and employees were fired and arrested.

As a result of the scandal, Delaware has spent over $1.6 million to send its drug evidence to a private out-of-state lab for testing and the Public Defender’s Office filed 1,000 motions for judges to overturn past drug convictions. The Attorney General’s office agreed to plea deals an or reduced charges in over 700 of these cases.

Experts testified in a trial about partisan gerrymandering and the constitutionality of Pennsylvania’s congressional district map.

The Lawsuit

A group of Pennsylvania voters claim that the congressional district map created during the 2011 redistricting process is an unconstitutional partisan gerrymander. The plaintiffs argue that the map was drawn by a Republican-controlled legislature to create as many Republican House seats as possible. Congressional districts are redrawn every 10 years following the U.S. Census.

In the 2012 election, the Republicans won 13 out of Pennsylvania’s 18 districts, even though they only won 49 percent of the votes in the state. The plaintiffs argue that the current map is unfair and are requesting that a new map be created before the 2018 midterm elections, when all 18 of Pennsylvania’s congressional seats will be up for election.

One of the named plaintiffs, Jean Shenk, testified that the current map makes her vote “a waste.”  Shenk lives in the Pennsylvania’s 15th congressional district, which includes Bethlehem and Allentown in Lehigh Valley, but not Easton. The district then extends toward the south central part of the state. Shenk, a Democrat, testified that her views and values do not align with her Republican congressman and the other voters in her district that reside outside of Lehigh Valley.

Partisan Data

William Schaller, director of Republican district operations, testified that he was given the task of developing the western half of the 2011 congressional district map and the Senate developed the eastern half. Schaller confirmed that partisan data was one of the factors that was considered in creating the map. Additionally, he considered population, past districts, U.S. Census race data, the residencies of the incumbents, and the Voting Rights Act.

Erik Arenson, top aide to then-Senate Majority Leader Dominic Pileggi, testified that partisan data was considered and that leaders “intended to respect incumbency” in the new map.

Expert Testimony

Daniel McGlone, an analyst with the map and data-processing company Azavea, testified that Pennsylvania’s district map shows a pattern of using election results and voter information based on past election returns and party registration information. McGlone says that this information was used to cluster Democratic voters into as few districts as possible, resulting in a map that consistently favors Republicans in most districts.

Princeton University professor Nolan McCarty challenged McGlone’s conclusions. Professor McCarty studies politics and legislative polarization. McCarty argued that, “Elections are determined not just by the underlying partisanship, but on the candidates that choose to run.” McCarty stated that Pennsylvania Democrats have a reasonable probability of winning 8 out of the state’s 18 congressional seats, but that the party had underperformed in the past three election cycles.

Anne Hanna, expert witness in engineering and data analytics, testified that it was feasible to draw politically neutral maps. Hanna compared the 2011 congressional district maps with maps from 1972 and 1992. Hanna testified that the older maps were reasonably compact, contiguous, and preserved communities of interest. Hanna outlined five potential ways to follow these principles without using partisan data.

Outcome

The lawsuit made its way to the Pennsylvania Supreme Court, which ruled that gerrymandering occurred and that the gerrymandering violated the Pennsylvania Constitution. The court gave the parties a chance to agree upon a new map, but political divides prevented that from happening. The court will now take responsibility for drawing a map that does not impermissibly favor either party.