A Genesee Circuit Court Judge has limited the testimony of a water quality expert, ruling that the expert can only offer “fact-based testimony” in the criminal prosecution of four Michigan Department of Environmental Quality employees.

Flint Water Crisis

In 2014, the city of Flint, Michigan stopped getting its water from Detroit and instead used water from the Flint River in an attempt to reduce costs.  Soon after the switch, residents began to complain about the water’s smell and taste.

Tests by the Environmental Protection Agency and Virginia Tech showed that the water contained dangerous levels of lead, which can have detrimental effects on the heart, kidneys, and nerves.  The Virginia Tech study concluded that Flint water was 19 times more corrosive than Detroit water and that it was unsafe to drink or cook with.

Legal Proceedings

Numerous lawsuits were filed against Michigan, the city of Flint, and the state and city officials who were responsible for switching the source of Flint’s drinking water and for monitoring the water quality.

Criminal cases were brought against some of the Michigan Department of Environmental Quality employees who are alleged to be responsible, including Liane Shekter-Smith, former director of the Office of Drinking Water and Municipal Assistance; Stephen Busch, a district supervisor; Michael Prysby, a district engineer; and Patrick Cook, a community drinking water specialist.  Judge Jennifer Manley is presiding over the case.

The Water Expert

Warren Green was called to testify.  Green is the vice president and chief technical officer at Lockwood, Andrews, and Newman and has over 38 years experience in engineering management and supervising water supply and treatment projects.

Attorney Mark Sweet requested a protective order to limit Green’s testimony to that of a fact witness, despite his qualifications as an expert witness.  Green’s firm is being sued civilly for its involvement in the water crisis — for allegedly letting the contamination to occur and worsen.  Sweet argued, “We’re asking that the court limit his testimony to only that as a fact witness, not expert witness…We believe Mr. Green should not be compelled to provide expert witness testimony against his consent.”  Sweet noted that Green’s firm has been accused of negligence “in the very same issues we’re dealing with today. So any testimony that Mr. Green provides that’s not necessary for the criminal charges today could potentially prejudice LAN’s interests. It also could potentially prejudice Mr. Green’s interests.”  Judge Manley agreed that Green should only be allowed to give “fact-based testimony.”

Green and his firm claim that they warned Flint officials that its water treatment plant was not ready for operation when it opened in April 2014.  Green says that “the plant was found to be in such a state of disrepair we could not even conduct the review.”  Green points to the lack of a chlorination system and testified that one of the defendants told him that corrosive treatment to the water was not required and a utilities administrator said that “we dodged a bullet” by not spending money on corrosion control.

An Alabama state judge threw out Roy Moore’s attempt to halt the certification of the election of Doug Jones to the Senate seat vacated by Attorney General Jeff Sessions.  Moore’s lawsuit relied upon “expert testimony” from a Florida-based elections analyst.

The Special Election

On December 12, 2017, Alabama held a special election for its vacant Senate seat.  Republican Ray Moore lost the election to Democrat Doug Jones with Jones receiving 49.9 percent of the vote to Moore’s 48.4 percent.  The difference was 1.54 percent or 20,715 votes.  Moore was widely expected to win the election until allegations of sexual misconduct with underage girls emerged late in the campaign.  Moore denied all of the allegations against him and refused to concede the election.

The Complaint

Moore filed a complaint in state court, seeking a temporary restraining order preventing Jones from being certified as the state’s election winner.  Moore argued that if Jones is certified, he would “suffer irreparable harm” and be “denied his full right as a candidate to a fair election.”  Moore claimed that he lost because of voting irregularities and election fraud and requested that “Secretary of State [John] Merrill to delay certification until there is a thorough investigation of what three independent election experts agree took place: election fraud sufficient to overturn the outcome of the election.”

Moore argued that out-of-state residents had been allowed to vote in the election and that election fraud experts had concluded through statistical analysis that fraud had taken place.  Moore alleged that there was “anomalous” higher voter turnout in Jefferson County, where 43{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the population is black.  Jefferson County had a 47{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} voter turnout.  Moore claimed that multiple out-of-state identifications were presented at voting places and pointed to a video interview from Jones’ victory party where a Jones supporter stated, “We came here all the way from different parts of the country as part of our fellowship, and all of us pitched in to vote and canvas together, and we got our boy elected!”

Moore stated that he took a polygraph test over the sexual misconduct allegations and that “the results of the examination reflected that I did not know, nor had I ever had any sexual contact with any of these individuals” and that the allegations were “false and malicious attacks on my character.”

Expert Testimony

One of Moore’s expert witnesses was Richard Charnin, a Florida-based elections analyst who claims three degrees in applied mathematics.  Charnin is prominent among believers that President John F. Kennedy was assassinated as part of a conspiracy and previously alleged that mass election fraud stole key Democratic primaries from Bernie Sanders to benefit Hillary Clinton.  Charnin opined that the probability that the election results are accurate was “less than one in 15 billion” and wrote that there was “overwhelmingly statistical proof of fraud in Jefferson County.”

The Result

Alabama Circuit Judge Johnny Hardwick denied Moore’s request for a temporary restraining order and Doug Jones was certified as the winner of the election by the Alabama State Canvassing Board.

Dimarzio Sanchez’s attorneys learned that their expert witness was indicted on drug charges days before testifying and have filed documents indicating they may be seeking a new trial.

The Crime

In April 2016, Roylynn Rides Horse, 28, was beaten and strangled into unconsciousness, doused with gasoline and set on fire.  Rides Horse was left on the side of the road on the Crow Reservation in Montana and found 14 hours later.  Rides Horse suffered third degree burns over 45 percent of her body and died 72 days later in a Salt Lake City hospital.

The Trial

Dimarzio Swade Sanchez, 20, was convicted of the first-degree murder of Rides Horse after a four-day federal trial.  Sanchez faces a mandatory life term in prison and a $250,000 fine.  His co-defendant Angelica Jo Whiteman pleaded to aiding and abetting first-degree murder and his co-defendant Frank James Sanchez pleaded guilty to misprison of a felony and accessory after the fact.

At Sanchez’s trial, his defense attorneys argued that Sanchez did not have the mental capacity necessary to premeditate Rides Horse’s murder.  They argued that Sanchez was a “follower” who functioned at a grade-school level.  This argument was supported by an evaluation by psychologist Dr. Teresa Hastings, who testified that she believed that Sanchez suffered from the effects of Fetal Alcohol Syndrome.  Hastings was the sole defense witness.

Motion for New Trial

Following Sanchez’s conviction, his defense attorneys learned that Hastings had been indicted on four felony counts of illegally obtaining the sedative zolpidem just days before the trial.  Zolpidem is a sleep aid used to treat insomnia that is marketed under the brand name Ambien.  Sanchez’s attorneys said that they they were made aware of the indictment by a counselor who knows Hastings.

Defense attorneys expressed concerns about Hastings’ indictment and its implications for Sanchez’s conviction.  Assistant Federal Defender Gillian Gosch wrote, “While Dr. Hastings enjoys the presumption of innocence, the fact that she faces four drug charges at least raises the question whether Dr. Hastings was under the influence when she examined Mr. Sanchez and/or when she testified at his trial.”

Hastings was indicted for alleged offenses occurring from June 2016 to February 2017.  Hastings evaluated Sanchez during that time period.  Sanchez’s attorneys expressed their concerns about whether Hastings was impaired when she examined Sanchez.  They allege, “The very witness to produce the evidence about how Mr. Sanchez could not form the requisite intent could have potentially been examining Mr. Sanchez and testifying on behalf of Mr. Sanchez while under the influence.”

Defense attorneys filed documents with the court, indicating that they may be seeking a new trial.  They claim that the testimony given by Hastings may have been tainted and argue that Sanchez could have been acquitted or convicted of a lesser charge if another expert had testified.  The defense attorneys said that they wanted to review Hastings’ examinations of Sanchez to determine if there was any problems with her work.

Sanchez has until January 5 to request a new trial.

Former police officer Nouman Raja’s defense team has filed its list of experts for his upcoming trial for the shooting of Corey Jones.  The list includes nine experts who have been linked to other high-profile shootings.

Corey Jones’ Shooting

On October 18, 2015, a 31-year-old motorist, Corey Jones, was stranded by the side of the road and on the phone with roadside assistance when Officer Nouman Raja approached him in plainclothes.  Raja was wearing jeans, a T-shirt, a ball cap and driving an unmarked cargo van.

Jones died after Raja shot him three times.  Raja claims that he clearly identified himself as a police officer and that he only shot Jones after he charged at him with a gun, “I came out. I saw him come out with a handgun. I gave him commands. I identified myself, and he kind of pointed the gun at me, started running and I shot him.”  However, an audio recording of Jones’ call with the roadside assistance operator contradicts Raja’s version of the events.  Additionally, a 911 call that Raja made raised questions because Raja is heard yelling at someone to drop a gun, but medical examiner’s reports revealed that Jones was likely dead at the time that Raja made the 911 call.

Raja was fired from the Palm Beach Gardens Police Department and charged with manslaughter by culpable negligence while armed and attempted first-degree murder with a firearm.

Expert Witnesses

The defense expert witness list includes Kimberly Crawford, a retired FBI agent and Northern Virginia Community College professor.  In 2015, Crawford was hired by Cuyahoga County Prosecutor’s Office to evaluate a Cleveland police officer’s shooting of 12-year-old Tamir Rice.  Crawford’s report cleared the officer of criminal liability, noting that the officer had to make a “split-second decision” and acted reasonably in shooting Rice.

Defense experts Michael Knox and Michael LaForte are from a firm that specializes in firearm, ballistics and shooting incident reconstruction.  Knox is the author of a 2012 book about the forensic evidence in the trial of George Zimmerman for the fatal shooting of Trayvon Martin.

Defense lists Emanuel Kapelsohn, a board member of the International Association of Law Enforcement Firearms Instructors.  Kapelsohn gave an interview to Slate magazine criticizing a police officer who was celebrated as a model for police behavior when he did not open fire on a murder suspect who was running toward him with his hand in his pocket.  Kapelsohn stated, “From a professional point of view, the officer made an extremely poor tactical decision and needs to be retrained, not commended…Whether Ferguson was going through his head, I don’t know. Whether Staten Island was going through his head, I don’t know. But an officer has to be prepared and trained and capable of shooting someone even though he doesn’t want to. This was someone who needed to be shot, should have been shot.”

Defense also lists Dr. John Marraccini, a former medical examiner in Palm Beach County who is now a forensic pathologist; Wes Carey of Legal Graphic Works; Brian Kensel, a law enforcement consultant in Valrico, Florida; and Christopher Chapman of Cranford, New Jersey, a police and law enforcement consultant.

A new trial has been ordered for a woman who was convicted of murder and cutting off a man’s penis after a judge found that ineffective assistance of counsel may have played a role in her conviction.

The Conviction

In 2001, the body of 44-year-old Duran Bailey was found in a parking lot in Las Vegas.  Bailey’s body had been sexually mutilated, with his penis cut off.

In 2006, Kirstin Lobato was convicted of Bailey’s murder.  No physical evidence linked Lobato to the crime scene.  The most persuasive evidence against Lobato was her own admission to the police that sometime around the time of Bailey’s murder, she had been on drugs and had used a knife to prevent an attempted sexual assault.

New Petition for Relief

In 2010, Lobato filed a petition for relief, challenging the legality of her incarceration.  The Nevada Supreme Court ordered an evidentiary hearing on 25 of Lobato’s claims.  Specifically, the court ordered a hearing on the defense counsel’s decision not to hire an expert to pinpoint the time of death. ExpertPages provided an extensive analysis of the decision in this post.

The time of death is important in this case because there is evidence that Lobato was in Panaca, a town about two-and-a-half hours away from Las Vegas, during midday and early evening on the date that Bailey’s body was discovered.  Bailey’s body was discovered at around 10 p.m. on July 8. The only evidence presented regarding time of death was from the medical examiner who indicated that death could have occurred as early as 10 p.m. on July 7.

Evidentiary Hearing

Judge Stefany Miley presided over an evidentiary hearing examining Lobato’s claims of ineffective assistance of counsel. At the evidentiary hearing, one of Lobato’s attorneys, David Schieck, testified that he should have more closely supervised the less-experienced attorneys who had been working on the case. Schieck said that the attorneys obtained a time of death estimate, but failed to call the forensic pathologist as an expert witness at trial.

Four forensic experts testified for the defense. A former Clark County medical examiner and professor of forensic pathology testified that, based on the photos and reports indicated lack of blowfly colonization on Bailey’s body, it was likely that he died at about 9 p.m. on July 8, 2001.

The state presented two expert witnesses. The first expert testified that Bailey’s body temperature and rigor mortis indicated that he died early to mid-morning on July 8, 2001.  The state’s second expert testified based on insect analysis that he could not rule out the possibility that Bailey’s body had been at the crime scene during daylight hours.

Ten alibi witnesses testified about Lobato’s whereabouts on July 8, 2001, placing her in Panaca from 11:30 a.m. until later that evening.

Judge Miley found that the alibi and expert witness testimony combined to create strong alibi evidence that Lobato had been in Panaca at the time that Bailey was killed and granted her a new trial. In her order granting a new trial, Judge Miley wrote, “Considering the totality of the evidence, had [Lobato’s] counsel provided evidence that narrowed [Bailey’s] time of death, it would have, within a reasonable probability, made a difference in the outcome of the trial,”

Three former employees of HCR ManorCare (or businesses that it owns) brought qui tam lawsuits against their former employer pursuant to the federal False Claims Act. In most lawsuits, the plaintiff must demonstrate that he or she was personally harmed by the entity that is sued. That doctrine, known as “standing,” prevents individuals from using the courts to correct perceived injustices in which they have no personal stake.

Qui tam lawsuits are an exception to the usual rule that a plaintiff must have standing to sue. The False Claims Act authorizes individuals who allege fraud against the government to bring a qui tam lawsuit on the government’s behalf to recover the government’s loss. If they are successful, they receive a share of the proceeds. The government has the option of taking over the litigation if it concludes that the allegations have merit.

The government took control of the lawsuit against ManorCare. Its primary evidence was an expert report prepared by a nurse examiner with the help of a team that works to uncover healthcare billing fraud. ManorCare asked the court to strike the report and to impose sanctions after the expert produced notes after the close of discovery. The expert had earlier testified that no such notes existed.

Allegations against HCR ManorCare

HCR ManorCare is a nationwide provider of short-term and long-term care facilities, including nursing homes, rehabilitation facilities, memory care centers, and assisted-living facilities. The three occupational therapists who began the qui tam lawsuit alleged that their former employer had participated in a scheme to defraud the Medicare and TRICARE programs by submitting false claims for payment. The government eventually added itself as a plaintiff and the lawsuits were consolidated.

The plaintiffs alleged that ManorCare billed for services that were not “medically necessary.” Their primary allegation was that ManorCare provided more skilled rehabilitation therapy than patients needed. The lawsuits claimed that delivering an unnecessarily high level of care allowed ManorCare to receive higher reimbursement rates from the government.

False Claims Act lawsuits against healthcare providers are relatively common. The most successful lawsuits typically allege that a provider billed for services that were never rendered. For example, TeamHealth Holdings (formerly IPC Healthcare) recently agreed to pay $60 million to resolve claims that it billed the government for more expensive services than it actually provided.

Allegations involving false claims are more difficult to prove when they admit that the services were provided but allege that they were not necessary. Whether a service is medically necessary is often a matter of opinion. When a healthcare provider says “We delivered a high level of care because the patient deserved it,” juries tend to think that the government shouldn’t object to paying for quality care. In those cases, proof depends on the quality of the expert witness testimony that the plaintiffs can offer.

Failure to Produce Expert’s Notes

The government relied on the expert testimony of Dr. Rebecca Clearwater. Dr. Clearwater was under contract to provide “program integrity reviews” for the Center for Medicare and Medicaid Services, the federal agency that administers Medicare.

After ManorCare took Dr. Clearwater’s deposition, it filed a motion to exclude her testimony. The government also asked for sanctions because the government did not produce Dr. Clearwater’s notes about patients whose records she reviewed until more than a month after her deposition ended. The motion was assigned to U.S. Magistrate Judge Theresa Carroll Buchanan.

The government explained that it did not produce the notes before the deposition because Dr. Clearwater had denied that the nurses who conducted the beneficiary reviews under her guidance made any notes.

The notes were made using the “comment” feature on Word. The nurse reviewers used that feature to comment on items in early drafts of what would become Dr. Clearwater’s expert report. They also communicated with each other using the comment feature. During her deposition, Dr. Clearwater denied that any “comments” were made on the Word documents.

The Justice Department lawyer handling the case conceded that government lawyers never asked the nurses whether they made notes. The lawyer contended that she relied on counsel for AdvanceMed, Dr. Clearwater’s employer, to obtain discovery documents related to Dr. Clearwater’s review.

The court was skeptical of the government’s explanation for delaying production of the notes once it became aware of them. The government contended that it needed to review the notes to make sure they related to ManorCare patients, even though Dr.  Clearwater said they did. Why that review took several weeks was something the government’s lawyer could not satisfactorily explain.

The government argued that the notes were not discoverable because they related to early drafts of an expert report. That argument fizzled after the judge forced the government lawyer to concede that the notes were communications from the nurse reviewers to Dr. Clearwater before Dr. Clearwater turned the report over to the government. That timing made the notes discoverable.

ManorCare argued that the notes were critical to its defense because they demonstrated that the nurse reviewers disagreed with each other about the care level that patients needed. ManorCare claimed that Dr. Clearwater did not reflect those differences of opinion in her report. In fairness, Dr. Clearwater’s final judgment was the one that mattered, but her failure to disclose disagreements with her opinion deprived ManorCare’s lawyers of ammunition it could have used to attack Dr. Clearwater’s conclusions.

The lesson to be learned here is that a lawyer working with experts has an obligation to comply with discovery requests. That certainly includes asking the expert about discoverable documents, but it may also include interviewing the people who worked on the expert’s team. The judge was unimpressed with the government’s efforts to learn about the documents that it belatedly produced.

Dr. Clearwater’s Credibility

The judge wondered how Dr. Clearwater could deny that notes existed when, in fact, she had a notebook filled with 131 pages of handwritten notes that the government belatedly produced. Those notes were in addition to 5,000 pages that included electronic comments generated in Word files. The judge also noted that during her deposition, Dr. Clearwater agreed to contact nurse reviewers to ask about notes, and later in the deposition claimed to have emailed the nurse reviewers with that request. A nurse reviewer, however, testified that Dr. Clearwater never asked her whether she made any notes.

The magistrate judge asked: “How can I find that she was credible at all in her testimony when she has now, we know at least three times, said untruthful statements in her deposition and to government lawyers?” The government suggested that there was “some confusion” on Dr. Clearwater’s part, but the magistrate judge didn’t buy it.

Court’s Ruling

The government argued that Dr. Clearwater’s credibility went to the weight that should be given to her testimony, not to its admissibility. Viewing the record as a whole, however, the judge noted that Dr. Clearwater’s repeated misstatements of fact had prejudiced ManorCare’s ability to defend against the government’s accusations.

Had ManorCare known of the notes, it would have used them when it deposed Dr. Clearwater. ManorCare’s own expert witness would have used those notes to prepare a rebuttal expert report. The failure to disclose important information therefore prejudiced ManorCare’s defense of the lawsuit. Under those circumstances, Dr. Clearwater’s credibility did not go to the admissibility of her opinions, but to the fairness of the trial process.

The court rejected as “ridiculous” the government’s suggestion that the problem could be resolved by allowing additional discovery and setting new deadlines for expert report disclosure and summary judgment deadlines. The court saw no reason to give the government a “do over.”

Instead, the court decided that “Clearwater’s entire report must be stricken and that she must not be allowed to testify because of her utter lack of credibility.” The court described the government’s case as a “house of cards” that rested on Clearwater’s report. The magistrate judge called the government’s case “a huge waste of money” and said he didn’t think it “should ever have been brought.” The magistrate judge said “I’m appalled, I’m embarrassed, I’m ashamed that the Department of Justice would rely on this kind of nonsense by a nurse reviewer to get involved in a qui tam case and cost these defendants millions of dollars in legal fees.”

Whether the magistrate judge went too far in that last assessment might be debatable, but the government apparently agreed that the damaged caused by its expert’s nondisclosure of crucial information was irreparable. Rather than appealing the magistrate judge’s ruling to the district court, the government agreed to dismiss the case against Manorcare.

The lawyer for the whistleblowers disagreed with that decision, but reasonably suggested that the government “realized that the trial was going to be more difficult with the exclusion of the expert.” Without an expert witness, in fact, a win would have been miraculous. The dismissal was apparently conditioned on ManorCare’s agreement not to seek fees and expenses related to its sanctions motion.

The acquittal of Jose Ines Garcia Zarate, who was charged with murdering Kate Steinle, has made national headlines, in part because President Trump tweeted his dissatisfaction with the “disgraceful”  outcome. The jurors, unlike the president, decided the case after considering the competing expert witnesses who advanced and undermined the prosecution’s theory of guilt.

The Murder Charges

Kate Steinle was shot while walking with her father on San Francisco pier. The bullet that struck her ricocheted after being fired into the concrete walkway. The question for the jury was whether Garcia Zarate caused the gun to fire accidentally or whether he deliberately or recklessly caused Steinle’s death.

Given that the bullet was fired into a concrete pier 12 feet from where Garcia Zarate was seated, then traveled about 78 feet before striking Steinle in the back after it ricocheted, it is difficult to understand how the prosecution believed it could prove that Garcia Zarate intended to kill Steinle. California law requires proof of a deliberate, premeditated, and intentional killing to support a first-degree murder conviction. Killers who target a specific victim for death don’t count on making a bank shot.

The more serious question was whether Garcia Zarate intended to shoot the gun on a crowded walkway. Second-degree murder under California law does not require proof of an intent to kill, but it does require proof of an intent to commit the act that caused the victim’s death. The prosecution must also prove that the defendant knew that the act was dangerous and consciously disregarded the risk to human life.

The third charge, involuntary manslaughter, required the prosecution to prove that Garcia Zarate engaged in reckless conduct that created a high risk of death or serious injury. Causing an accidental death by careless action that does not rise to the level of recklessness is not a crime under California law. The last charge, assault with a firearm, also required proof of a purposeful shooting.

Facts at Trial

Several key facts were undisputed. The gun had been stolen from the vehicle of a Bureau of Land Management ranger days earlier. The prosecutor did not claim, and no evidence suggests, that Garcia Zarate stole the gun.

Steinle was struck with a single bullet; she was not shot five times, as Donald Trump claimed during his presidential campaign. No evidence suggested that Garcia Zarate knew Steinle or that he had a motive to kill her or to harm anyone on the pier.

Other facts were less clear. Although the gun was clearly pointed at the ground when it discharged, prosecutors claimed Garcia Zarate deliberately pointed it at Steinle, or at least in her direction. The defense contended that Garcia Zarate found an object wrapped in a rag or T-shirt on the pier. Garcia Zarate said he didn’t know the object was a gun until it went off as he was unwrapping it.

The police interrogated Garcia Zarate for four hours after his arrest, and his statements contradicted each other as well as the physical evidence. At one point he said he was shooting at a sea animal. He also said the gun went off when he stepped on it.

Whether Garcia Zarate admitted to pulling the trigger, or merely admitted that he fired the gun, is also unclear. The accuracy of the police translation of the interrogator’s English-language questions into Spanish and of Garcia Zarate’s Spanish-language questions into English was disputed at trial.

John Evans’ Testimony

John Evans, a San Francisco Police Department crime scene investigator, testified as an expert witness for the prosecution. He asserted that “A human being held the firearm, pointed it in the direction of Ms. Steinle, pulled the trigger and fired the weapon, killing Ms. Steinle. This is the only way it could have happened.”

That kind of certainty, when coming from an expert witness who wasn’t at the scene and didn’t see what happened, will often backfire. Juries perceive expert witnesses as arrogant when they suggest that they have an exclusive window on the truth. When that expert is impeached, juries more readily discount the expert’s testimony as being result-oriented rather than objective.

Evans also testified that inexperienced shooters often jerk the trigger of a gun, causing it to fire before the barrel is pointed directly at the target. Evans theorized that the bullet was meant for Steinle but hit the concrete pier for that reason. He also testified that guns don’t fire accidentally.

Evans based his conclusion that Garcia Zarate pointed the gun at Steinle on a “vector” analysis, essentially using a laser pointer to show that the place where the gun was fired, the place where the bullet hit the pier, and the place where Steinle was standing all fell within straight line. Evans was allowed to give that testimony over a defense objection that it was based on “junk science.” Evans admitted on cross-examination that the CSI team could not determine where Garcia Zarate was when the gun was fired, and only knew approximately where Steinle was standing based on blood stains.

Evans also admitted that the bullet may have changed direction after it hit the pier. When asked how he could be certain that the bullet followed a straight path if it might have changed direction, Evans changed the direction of his testimony, explaining that bullets spin and tumble after they strike an object, but still travel in a direction that is “essentially straight.”

Finally, the defense asked Evans whether he knew that the shooting was an accident or not. “I cannot say” was his honest answer, and it established a reasonable doubt that probably helped the jury vote “not guilty.”

Evans’ Result-Oriented Testimony

Evans played a crucial role in the 2010 trial of Jamal Trulove, a former reality-show contestant who was convicted of murder. Although the placement of shell casings that had been ejected from the murder weapon cast doubt on eyewitness testimony that implicated Trulove, Evans claimed that casings fall “randomly” after they are ejected and can end up in front of the shooter’s position. That testimony, which Evans claimed to base on his own experience firing guns and on a report prepared by a police inspector, was later discredited by experts who explained that casings ejected from the kind of handgun used in the murder are always ejected to the right and backward.

Truelove’s conviction was reversed on appeal and he was acquitted after a second trial. In a post-conviction deposition, Evans admitted that he never read the report about patterns made by ejected casings that another police inspector prepared, even though he testified about that report at Truelove’s trial. Evans claimed to have discussed the report with its author, but the author denied any recollection of discussing it with Evans. The inspector also said that Evans’ trial testimony misrepresented the contents of his report.

The prosecution probably should have known better than to rely on Evans, given his performance in the Trulove trial. Before charging first-degree murder in a case where the lethal bullet ricocheted, it is surprising that the prosecution did not confirm Evans’ theories with independent experts.

Defense Experts

The defense countered Evans’ testimony with the expert opinion of James Norris, a former San Francisco criminalist and director of the Police Department’s forensics division. Norris testified that a ricocheting bullet can change direction, and that the bullet’s path after the ricochet is impossible to predict.

Norris also testified that the gun was probably “1½ to 2 feet off the ground” when it was fired, a position that would have been below Garcia Zarate’s knees. “In that position, it would be extremely difficult to aim,” Norris testified.

The defense also relied on the expert opinion of Alan Voth, a firearms forensic expert who spent 35 years with the Royal Canadian Mounted Police. Voth testified that accidental discharges of firearms are common.

After explaining why guns fire accidentally, Voth pointed to the evidence that Garcia Zarate did not intend to fire the gun. He emphasized that only one shot was fired, that the bullet struck the ground, and that Garcia Zarate had no motive to shoot a stranger.

Politics and the Verdict

There is no question that Garcia Zarate received a fair trial and that the jury deliberated carefully and based its verdict on the evidence, including the testimony of experts. While the president and others have suggested that the verdict should make people angry, there is no cause for anger when a jury follows the law and rejects speculative theories of guilt.

Politics has no role in the criminal justice process. Verdicts must be based on evidence, not political opinions. The Garcia Zarate trial demonstrates the valuable role that experts play in assuring that defendants receive a fair trial by helping juries evaluate the evidence that will determine their verdict.

The Arizona Supreme Court recently decided that 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 decision illustrates the unfairness of legislation that prevents experts from testifying in medical malpractice cases who have sufficient knowledge and experience to provide credible opinions.

Facts of the Case

Karyn Rasor was placed in a medically induced coma after surgery. She was transferred to the Intensive Care Unit (ICU) at Northwest Medical Center (NWMC). During her stay in the ICU, she developed a pressure ulcer over her tailbone. She has had 31 procedures to remove dead tissue and was prepared to prove that she suffers from a permanent injury.

Rasor sued NWMC, alleging that hospital staff engaged in professional malpractice by failing to reposition her properly, thus allowing the pressure ulcer to develop. Following Arizona law, Rasor filed a “preliminary expert affidavit” to show that she could produce expert evidence to substantiate the merit of her claim.

Rasor’s expert was Julie Ho, a registered nurse who was certified in wound care. Ho had significant experience doing wound assessments and care planning in a long-term acute care facility during the year prior to her execution of the affidavit.

The trial court determined that Ho was an expert on the standard of care for wounds but lacked the necessary expertise to testify about the cause of the patient’s injury. The court denied Rasor’s motion to designate a causation expert because the deadline for disclosing experts had passed. The court then granted summary judgment in NWMC’s favor and dismissed Rasor’s case.

Court of Appeals’ Decision

Rasor appealed. The Arizona Court of Appeals disagreed with the trial court’s determination that Ho was an expert on the standard of care that applies in an ICU. The Court of Appeals decided that only a certified ICU specialist could testify about the standard of care that an ICU should follow, and that Ho was a generalist, not a specialist.

The Court of Appeals concluded, however, that the trial court should have allowed Rasor to designate a new expert. Both parties asked the Arizona Supreme Court to review the Court of Appeals’ rulings.

Supreme Court’s Decision

Like most states, Arizona law requires an expert opinion to establish the appropriate standard of medical care unless malpractice is “grossly apparent.” Failing to position a bedridden patient so that bedsores and pressure wounds will not develop might be regarded as a grossly apparent breach of the duty to provide reasonable care, but the Arizona Supreme Court did not address that question.

When expert testimony is needed to establish that a medical provider failed to follow the appropriate standard of care, Arizona law requires the expert’s opinion to be stated in a preliminary affidavit that is filed shortly after the lawsuit is commenced. The affidavit must demonstrate that the expert is qualified to render an opinion. To be qualified under Arizona law, the expert must:

• practice in the same specialty as the defendant;
• be board certified in the specialty if the defendant is board certified; and
• have practiced in the same health profession and specialty as the defendant during the majority of the witness’ professional time during the year prior to the commission of the alleged malpractice.

The question before the Supreme Court was whether Ho was qualified to testify about the standard of care that Rasor should have received. The parties disagreed whether the ICU nurses who alleged caused Rasor’s injuries practiced a nursing specialty. Rasor argued that they had the same education as Ho and that Ho’s training as a registered nurse who was certified in wound care qualified her to render an expert opinion. According to NWNC, however, the nurses who treated Rasor were ICU specialists, apparently because they were trained to work in the ICU.

The Supreme Court did not decide whether Ho worked in the same specialty as the ICU nurses because it concluded that Ho did spend the majority of her professional time during the year before Rasor’s injury working in the “active clinical practice of the same health profession as the defendant” nurses. Rather, she worked at a long-term acute care facility as a wound care coordinator and picked up extra shifts as an ICU wound care supervisor, but did work as an ICU nurse.

The result might be consistent with a narrow reading of the Arizona statute (assuming that “active clinical practice” refers to something more than the practice of nursing), but if so, the decision points to the harm caused by statutes that restrict the availability of expert witnesses in medical malpractice cases. Ho was clearly qualified by training and experience to testify about wound care. Unless there is some reason to believe that wounds should receive different care in an ICU than they receive in an acute care facility, the place where Ho worked has no bearing on her expertise. And the fact that she worked as a wound care coordinator rather than an ICU nurse suggests that she had more expertise in wound care than the ICU nurses who allegedly harmed Rasor.

Statutes like Arizona’s are the result of intense lobbying efforts by the insurance and medical industries to restrict the availability of experts who can testify in medical malpractice cases, regardless of their expertise. It is difficult to find a healthcare professional in active practice in an identical field who is willing to testify as a plaintiff’s expert, because healthcare practitioners are reluctant to testify against each other, even when they know their colleague has committed malpractice. Legislation like Arizona’s takes advantage of that reluctance to skew the playing field in favor of medical malpractice defendants by depriving injury victims of experts who, like Ho, have more than enough expertise to render an opinion about the standard of care that a patient should receive.

Substitution of New Expert

Resolving a conflict among Arizona’s lower appellate courts, the Supreme Court decided that defendants are not required to challenge an expert’s qualifications before basing a summary judgment motion on the expert’s failure to meet the qualifications listed above. While Arizona law includes a procedure to challenge the preliminary affidavit, following that procedure is not a prerequisite to bringing a summary judgment motion. The Supreme Court ruled that the Court of Appeals should not have reversed the summary judgment because there is no automatic right to substitute a new expert after the judge bases summary judgment on the expert’s lack of qualifications.

As a result of that decision, defendants have an incentive to lay in the weeds and challenge an expert only after the expert disclosure deadline has passed, preventing the plaintiff from salvaging the case by designating a new expert. While a plaintiff can file a motion to substitute a new expert in response to a summary judgment motion, the plaintiff may do so only before summary judgment is granted, and therefore will not have the benefit of the court’s ruling whether the expert who prepared the preliminary affidavit is qualified.

A video enhancement expert provided testimony in the trial of a man charged with the fatal shooting of Kate Steinle.

Shooting of Kate Steinle

On July 1, 2015, Kate Steinle was walking with her father on San Francisco’s Pier 14 when a gun was fired. That bullet would ricochet off the pier and then strike and fatally wound 32-year old Steinle. The gun that was used in the shooting had been stolen from a U.S. Bureau of Land Management ranger four days earlier.

Jose Ines Garcia Zarate, a 45-year-old homeless Mexican man, was arrested and charged with second-degree murder. Prosecutor Diana Garcia argued that Garcia Zarate brought the gun to the pier, pointed it toward Steinle and pulled the trigger. “He knew he had a gun. . . . . He meant to conceal it from people. He meant to shoot it at people. He meant to shoot it at people, and he shot Kate Steinle.”

Garcia Zarate does not contest that he fired the shot, but claims that it was accidental. The defense contends that Garcia Zarate found the gun on the pier wrapped in a shirt, and that the gun discharged when he unwrapped it. The gun was a .40-caliber Sig Sauer, which is known to have a hair trigger. Defense attorney Matt Gonzalez argued, “The gun was pointed at the ground when it discharged the bullet. . . . Only a freakish ricochet altered the path of this bullet.”

Surveillance Video Footage Analysis

Surveillance video of the shooting was obtained from a camera on another pier located about a quarter of a mile away. To bolster the argument that the shooting was accidental, defense attorneys called Paul Hiromi Endo, president of a video and graphics company Think Twice, Inc., to analyze the video of the shooting. Endo has over 10 years of experience in litigation graphics.

Defense attorney Matt Gonzalez had Endo present a zoomed in and enhanced version of the video to the jury. The video shows a group of six people gathered around the area when Garcia Zarate would later sit on the pier. In some points in the video, the group appears to bend down as if they are picking things up or setting things down. Endo pointed to at least seven times where a member of the group bent down. Defense attorneys say that this video shows another way that the gun could have ended up on the pier. Defense attorney Francisco Ugarte said, “We believe that it was entirely likely that group of individuals discarded that weapon. . . . That’s evidence that when he said he found the gun right there it appears to be a legitimate statement.”

Endo also zoomed in on footage of Garcia Zarate at the time of the shooting. Endo explained that the footage showed Garcia Zarate’s foot moving and then what appeared to be Garcia Zarate bending down.

This video footage was originally introduced into evidence by prosecution in support of its argument that Garcia Zarate had intentionally pointed the gun at Steinle and pulled the trigger.

An expert in blood spatter offered testimony in the habeas hearing of Brad Jennings, who was convicted of the murder of his wife, Lisa, in 2009.

Death of Lisa Jennings

Lisa Jennings was found dead of a gunshot wound early on Christmas morning in 2006. The Dallas County coroner initially ruled her death a suicide. Lisa Jenning’s right hand tested positive for gunshot residue and both of her husband’s hands tested negative for residue.

A few months after Lisa’s death, her younger sister went to the police with her concern that Lisa had been murdered by her husband, Brad. Sergeant Dan Nash led another investigation of the death.

Nash concluded that Lisa Jennings had not committed suicide — she had been shot by her husband, Brad. At Brad’s trial, Nash explained that his conclusion was based on blood spatter evidence, or the interpretation of individual blood stains. Nash testified that he believed that the death was a murder and not a suicide because Lisa Jennings’ hand only had one drop of blood on it. Nash testified that there should have been more “blowback” present from a gunshot. Brad Jennings was convicted of his wife’s murder and sentenced to 25 years in prison.

Writ of Habeas Corpus

Brad Jennings has maintained his innocence since his conviction. His sister hired an investigator and attorney who discovered that the prosecution suppressed evidence that may have been exculpatory.

Brad Jennings filed a writ of habeas corpus, requesting that his conviction be vacated and he be released or that he receive a new trial. Circuit Judge John Beger presided over the hearing.

The defense called Joseph Slemko to testify as an expert in blood spatter. Joseph Slemko is a veteran police officer with 31 years of experience and works as a blood spatter consultant. Slemko has taken 32 courses on blood spatter over the past 23 years. Slemko pointed out that the blood spatter pattern radiated out 180 degrees from the closet where Lisa Jenning’s body was found. Slemko noted that if Brad Jennings or anyone else had been standing there, there would have been a “void” or disruption in the spatter. Slemko testified that Lisa Jenning’s death was “clearly a suicide.”

Slemko criticized Sergeant Nash’s qualifications to interpret the blood spatter evidence. Slemko opined that Nash’s blood spatter report didn’t make sense and looked like it was copied and pasted from other sources. Nash had taken a one-week course on blood spatter analysis. Slemko stated, “He absolutely is not qualified. . . . In my opinion, he wasn’t even qualified after taking that basic course.”

Slemko additionally criticized Nash’s conclusion that there should have been “blowback” from the gunshot. Slemko said, “Back splatter is actually a very rare thing in most firearm related events.” Slemko also opined that the blood that was found on Brad Jennings’ bathrobe could have come from the blood in his wife’s hair; it did not necessarily result from him firing a gunshot.

Under cross-examination, Slemko admitted that he is not an expert in gunshot residue evidence, that he never saw the bathrobe at issue, and that he did not know about Nash’s other training that may have been relevant to the investigation.