US Army deserter Bowe Bergdahl received a dishonorable discharge, but will avoid prison time. Bergdahl’s defense relied upon testimony from a forensic psychiatrist.

Bergdahl’s Desertion

Bowe Bergdahl was a Sergeant in the US Army who deserted his post in Afghanistan. Bergdahl was captured by the Taliban and held for five years until he was released in exchange for five Guantanamo Bay detainees.

Bergdahl said that he was tortured and beaten during those five years and spent them in complete isolation. Bergdahl described torture with copper wire, sickness brought on by squalid conditions, and being placed in a cage for years.

Following Bergdahl’s return, the US military investigated his decision to leave his post. Bergdahl was charged with desertion and misbehavior before the enemy.

Bergdahl pleaded guilty and chose to be tried by a military judge. Prosecutors asked for a 14-year prison sentence. Defense attorneys sought leniency by presenting evidence of time spent in captivity, mental illnesses, and criticism by President Donald Trump.

Bergdahl’s Defense

Defense attorneys called Dr. Charles Morgan as a witness. Dr. Charles Morgan is a forensic psychiatrist and professor at University of New Haven and Yale University. Dr. Morgan is an international expert in post-traumatic stress disorder, eyewitness memory, and human performance under conditions of high stress. Dr. Morgan is also an expert in the selection and assessment of US military Special Operations and Special Mission Units.

Morgan stated that he interviewed Bergdahl’s family and friends and did extensive testing on Bergdahl. The testing included psychiatric evaluations, stress exams, and neurological psychological testing.

Dr. Morgan concluded that Bergdahl suffered from a schizotypal personality disorder before he enlisted in the army. Bergdahl also suffered from post-traumatic stress disorder and social anxiety.   Morgan testified that people with schizotypal personality disorder tend to indulge in grandiose fantasies that may compel them to take action they are convinced is morally right, even if it is not grounded in reality. Morgan said that Bergdahl understood the difference between right and wrong, but may have had difficulty seeing the second- and third-effects of his actions and the impacts they will have on others.

Morgan testified that Bergdahl was “someone who had a number of factors that pointed to stress vulnerability before enlistment.” Morgan pointed to Bergdahl’s childhood with a father who punched holes in the wall and said that Bergdahl felt “dumb, inferior, worthless (and like a) failure in the eyes of his father.”

Bergdahl has said that he left his post in Afghanistan intending to reach another base and report what he thought were problems with his unit. Morgan said that this decision would be consistent with schizotypal personality disorder. Morgan opined, “I think he believes there are times that, if it’s the morally right thing to do, you have to break the rules. . . . There’s not a thinking through of: ‘Are there other ways to achieve this goal?'”

The Ruling

Army Colonel Jeffery Nance ruled that Bergdahl will not serve any time in prison, but will be reduced in rank to private, forfeit $1,000 per month in pay, and receive a dishonorable discharge.

Photo Credit: United States Army (http://blog.oregonlive.com/) [Public domain], via Wikimedia Commons

The Village of Port Chester, New York has hired Dr. Lisa Handley, an expert in voter data analysis and voting patterns among Hispanics, to help decide the future of its electoral system. The Board of Trustees authorized payment to Dr. Handley of up to $20,000.

A voting expert is needed following the settlement of a voting-rights case between Port Chester and the U.S. Department of Justice. Port Chester needs to choose a new electoral system before the village’s next election in 2019.

Voting Rights in Port Chester

In 2006, the United States filed a complaint against Port Chester, alleging that its at-large system of electing its Board of Trustees diluted the voting strength of its Hispanic citizens in violation of Section 2 of the Voting Rights Act. According to the 2016 American Community Survey, Port Chester has a population of 29,524 and the majority of its population is Hispanic.

The resulting federal consent decree mandated that Port Chester use a “cumulative voting” system and implement an extensive Voter Education Plan including bilingual information and training sessions, educational brochures, notices and advertisements, exit polling, and a bilingual program coordinator.

Using cumulative voting, all six of Port Chester’s trustees are elected at once and voters are allowed to apportion their six votes in any way — all six votes could go to one candidate.

Prior to the federal consent decree, no Hispanic candidate had ever been elected to the Board of Trustees. In 2010, following the implementation of the new cumulative voting system, Peruvian immigrant Luis Marino became Port Chester’s first Hispanic trustee.

The federally mandated voter protections were to remain in place for the next three Trustee elections. The consent decree did not give guidance on how to proceed after those three elections. Port Chester’s next village election will be in March 2019.

Dr. Lisa Handley

Dr. Lisa Handley testified as an expert witness in this case in 2007 and 2008. Handley’s expertise is “in the fields of racially polarized voting, analyzing voting behavior, statistical analysis of voting, and the effect of electoral practices of minority participation and representation.” Dr. Handley used three methods of statistical analysis to review election data and analyze how voters cast their votes in each election. In 2007, Dr. Handley testified that Port Chester’s voting was “racially polarized and the Hispanic-preferred candidate is usually defeated.”

Dr. Handley received her PhD from George Washington University and is president of Frontier International Electoral Consulting in Maryland.

Port Chester has also requested opinions on the legality of continuing the current system from the New York State Board of Election, the New York State Attorney General’s Office and the Department of Justice.

Village Attorney Anthony Cerreto has stated that the final decision on the electoral system will likely be voted on by the Board of Trustees and may also require a public referendum. Cerreto said, “The board intends to have a public, inclusive, transparent process throughout.”

The general rule is that juries are allowed to consider reliable expert evidence that will help them decide an issue that is relevant to the case. Deciding whether expert evidence is “reliable” is the question that most often vexes courts. Less often, courts are asked to decide whether expert testimony, reliable or not, would be helpful to the jury.

That issue arose in an appeal that was recently decided by the U.S. Court of Appeals for the Seventh Circuit. Allegations that the police used excessive force are commonly met with expert evidence concerning the training or perception of police officers. That evidence is routinely admitted in typical excessive force cases, but as the Seventh Circuit pointed out, it isn’t always useful.

Facts of the Case

Aldo Brown, a Chicago police officer, entered a convenience store in Chicago’s South Shore neighborhood with another officer to investigate a tip that drugs were being sold from the store. The officers handcuffed several people near the entrance, including store employee Jecque Howard. The officers conducted a fruitless search of the store, then removed the handcuffs from the patrons, all of whom had likely been subjected to an unlawful detention.

Brown’s partner removed Howard’s handcuffs and questioned him. Brown then approached Howard and asked to see his waistband. When Howard lifted his shirt to comply with the request, Brown punched Howard in the face. The sucker punch was captured on the store’s security cameras, so there is little dispute about the facts.

Brown then demanded that Howard empty his pockets. Howard produced a small bag of marijuana from his back pocket. Brown then punched Howard in the ribs and made him lie down in the store aisle. Brown handcuffed Howard, searched him, and found a handgun. He then kicked Howard in the ribs. Howard engaged in no act of aggression to provoke any of Brown’s violent acts.

Apparently unaware that all of his actions had been recorded on camera, Brown wrote two reports that justified his use of force. Brown claimed that his takedown of Howard was necessary because Howard reached for his firearm. The video evidence was inconsistent with that statement. Brown also stated that Howard “fled” or “pulled away” after the takedown. Those alleged actions cannot be seen on the video.

Brown was charged with three federal crimes: two counts of falsifying a police report and one count of violating Howard’s civil rights by using excessive force to arrest or detain him. The jury acquitted Brown of falsifying his report but found him guilty of using excessive force to detain Howard.

Brown’s Proposed Expert Evidence

At trial, Brown testified that he punched Howard because he noticed the gun in Howard’s pocket. He also testified that the confrontation continued because Howard threatened him, incited onlookers to “rough him up,” failed to comply with his orders, tried to grab Brown’s gun, and attempted to flee.

Brown wanted to bolster his defense by calling John Farrell as an excessive force expert. Farrell planned to “take the jury through a frame-by-frame analysis of the surveillance video and describe how the Chicago Police Department’s ‘Use of Force Model’ applied to Brown’s confrontation.” Farrell’s expert report stated that Howard was an “active resister” and an “assailant” as those terms are used in the “Use of Force” policy. Farrell would have testified that the use of force was appropriate under the circumstances. Farrell based his opinions on his own interpretation of the video and on his interview of Brown.

“Use of force” experts are common in police brutality cases, and the technique of conducting a “frame-by-frame” analysis has been successful in other cases. In some cases, slowing down a video and showing individual frames will help jurors see video content that they might miss when the video is running at normal speed. On the other hand, slowing the video might hurt the officer’s defense in some cases, because it makes the encounter seem to have lasted longer than it actually did.

The district court judge decided that Farrell should not be allowed to testify. Brown was convicted of violating Howard’s civil rights. Brown appealed.

“Use of Force” Policies

The question for the jury was whether the officer used more force than was reasonably necessary under the circumstances when the officer detained Howard. The Court of Appeals noted that the police department’s policy does not affect the constitutional standard. In other words, the police cannot thwart the Constitution by implementing a policy that allows the unreasonable use of force.

The court noted that policies differ from department to department, but the Constitution offers the same protections everywhere. The court also noted that if the “reasonableness” of force is determined by a policy, the police would be in charge of determining the meaning of the Constitution. That result would have “horrified” the Framers of the Bill of Rights, because those rights are “too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.” Courts, not the police, are the final guardians of civil rights.

Exclusion of Expert Evidence

In some cases, expert evidence about policies the police are trained to follow might be relevant. Testimony about training might explain how the police generally evaluate a particular threat. Police training might also explain why certain techniques are used to respond to threats. Expert testimony can be valuable when it focuses on standard practices that are widely implemented by police departments across the country. The Court of Appeals explained that it is less valuable when the expert testifies about the local policies of a particular department, because the jury’s job is to decide how a reasonable police officer would use force, not how a reasonable police officer employed by a specific department would use force.

Expert testimony is also more valuable when it might help the jury understand complex facts. If the officer perceived a threat that the jury might not easily appreciate, expert assistance might guide the jury’s understanding of how a reasonable officer would evaluate the threat.

Applying those principles, the Court of Appeals concluded that the judge correctly excluded Farrell’s expert testimony. The facts were not complex. The jury could see Brown hitting and kicking a motionless man who was not resisting or threatening him. The police department’s policy could not be spun to make those actions reasonable. A frame-by-frame analysis would not have changed what the recording plainly showed, but might have induced the jurors to substitute the expert’s interpretation of the recording for their own. Since the jury could use their common sense to understand what they saw on the recording, the expert testimony might have muddied facts that were crystal clear.

Farrell would also have expressed the opinion that Brown’s actions were reasonable. While experts may testify about the “ultimate fact” that the jury must decide, they are not allowed to tell the jury what verdict they should reach. That distinction is not always easy to apply, but in this case the Court of Appeals decided that the jury was capable of deciding whether Brown acted reasonably without the help of an expert, and that Farrell’s testimony would have done nothing more than tell the jury what result to reach. For that reason, the Court of Appeals concluded that the expert testimony was properly excluded.

A Wisconsin jury has determined that a teenage girl accused of attempted murder for her role in an attack on a classmate  was not mentally competent to have fully understood the consequences of her actions. The attack was motivated by a desire to appease the Slender Man. The jury’s decision was heavily influenced by three psychology expert witnesses. As a result of the verdict, the girl will not face prison time.

Teenage Girls Charged with Attempted Murder in Slender Man Stabbing

In 2014, Anissa Weier and Morgan Geyser, both 12 at the time, conspired during a sleepover to fatally stab their sixth grade classmate, Payton Luetner,who was also 12. In the late morning after the sleepover, Weier and Geyser lured Luetner into the woods where Geyser stabbed her 19 times before leaving her to die. Luetner survived by crawling to a nearby road where she was noticed by a passing cyclist, but the attack left her severely scarred and near death. Weier and Geyser were discovered by police soon after the attack as the two girls were walking down a major Wisconsin highway.

During police interrogation, Weier and Geyser admitted to the stabbing, and claimed that they attacked Luetner in order to appease the Slender Man, a mythical figure created on an online forum that quickly became an Internet bogeyman through crowd-sourced additions to the story. According to the fabricated legend, which began sometime in 2009, the Slender Man, a tall, faceless figure, lures children to a paradise reality where they are free of the pain and suffering of this world. In exchange, the Slender Man demands blood sacrifices from its proxies in order to ensure their safety and that of their families. Weier and Geyser were picked up by police walking towards what they believed to be the Slender Man’s home in a wooded area of Wisconsin.

After the arrest and subsequent investigation, both girls were deemed eligible to be tried as adults, and faced several decades in prison for attempted murder. Weier, who was sold on the concept of the Slender Man by Geyser, has admitted to police that she went along with the attack because she was convinced by Geyser that her family would be in danger from the Slender Man if she did not participate. Before the start of Weier’s criminal trial, she agreed to plead guilty to attempted second-degree intentional homicide, with a recommendation from prosecutors that she serve a 10-year sentence if she was found to be criminally responsible.

Psychology Experts Testify in Insanity Defense of Slender Man Defendant

To determine whether or not Weier could be found criminal responsible, prosecutors and defense attorneys presented evidence to a jury about her mental state. Defense attorneys for Weier relied on testimony from three psychology expert witnesses to argue that the defendant, who was 12 at the time of the attack and has shown symptoms of mental illness, did not have the capacity to know her actions were wrong or conform her behavior to the law. Two of the psychologists were appointed by the trial court, while the third was hired by Weier to evaluate her.

Melissa Westendorf, a court-appointed psychology expert witness, was the first to testify regarding Weier’s mental condition at the time of the attack on Luetner. According to Westendorf, the defendant could not distinguish between the fake stories of the Slender Man and reality, which enabled her to be misled by Geyser and engage in the assault. Westendorf told the court that it was not uncommon for people who suffer delusions to keep them hidden from friends and family members, and testified that it was not impossible for Weier to believe in the Slender Man without talking about him to others beside Geyser. Gregory Van Rybroek, the second court appointed psychology expert, echoed Westendorf’s testimony, and told jurors that it was possible Weier and Geyser experienced a shared delusion about the Slender Man which blocked their ability to conceptualize the consequences of their behavior.

Finally, Michael Caldwell, a staff psychologist at the University of Wisconsin who was hired by the Weier family to evaluate Anissa, took the stand and testified that he believes the defendant suffered from persistent depressive disorder. He concurred with Westendorf and Van Rybroek that the combined effect of Geyser’s friendship and the Internet’s ability to make a myth appear to be real drove Weier to commit the crime. Caldwell told jurors that the website Creepypasta, where the the origins of the Slender Man myth began, was “very convincing,” especially to an impressionable girl of 12 whose brain had not fully developed. Although all experts agreed that shared delusions are rare, they argued that Weier showed symptoms consistent with delusional behavior which impaired her concept of right and wrong.

Jurors Find Support for Insanity Defense in Slender Man Trial

Testimony by the three psychology experts in favor of Anissa Weier proved sufficient for a finding that the defendant was not criminally responsible. As a result, Weier will likely spend up to three years in a mental hospital receiving treatment for her disorder before she can be eligible for release. Geyser, who has been diagnosed with early onset schizophrenia, faces trial next month. She will also likely rely on psychology experts to support an insanity defense.

Photo Credit: By LuxAmber (Own work) [CC BY-SA 4.0], via Wikimedia Commons

Randy Balko, a journalist who has frequently linked wrongful convictions to crime lab employees and other witnesses who slant (and sometimes falsify) expert evidence to favor prosecutors, reports the death of “the emperor of junk science.” Robert O’Block, who apparently killed himself in a murder-suicide, founded the American College of Forensic Examiners Institute (ACFEI), an organization that, in Balko’s words, “embodies everything that’s wrong with how forensics is used in the American criminal-justice system.”

The Legitimization of Junk Science

O’Block was fired from his teaching position at Appalachian State University for falsely claiming to have co-authored several academic articles. He was then hired for a teaching position at College of the Ozarks, where he pronounced himself an expert in the dubious field of handwriting analysis. When his application for membership in an organization of handwriting experts was rejected, he formed his own organization, the American Board of Forensic Handwriting Analysis, and credentialed himself as an expert.

According to Balko, membership in O’Block’s organization grew because the Daubert decision created “more space for expertise that had yet to be scientifically scrutinized.” By abandoning the former Frye standard, which rejected expert evidence in an area that was not generally accepted by scientists, the Supreme Court may have opened the door to junk science that reputable experts have never validated. That outcome is ironic, given that proponents of the Daubert standard have pushed for its acceptance in state courts on the ground that it acts as a safeguard against junk science in civil cases.

Balko suggests that judges who are trained as lawyers rather than scientists often take “shortcuts” to decide whether expert testimony meets the Daubert standard of reliability. One shortcut is reliance on a credentialing organization to demonstrate that professional standards exist to validate scientific results. According to Balko, the Daubert decision resulted in an explosion of organizations in various fields of forensic science, as experts sought to bolster the credibility of their work by gaining the imprimatur of membership in a professional organization.

The Rise of ACFEI

O’Block soon expanded his organization to encompass other forensic specialties, offering certifications to anyone who was willing to pay for them. The College of the Ozarks fired O’Block after discovering that he was using his students to do unpaid labor for his forensic science organization.

O’Block had no need for a teaching job at that point, because he was earning a $50,000 annual income from his organization. He renamed it the American College of Forensic Examiners, and later added Institute to the organization’s name to overcome objections from another organization that was using the same acronym. The Board of Directors at that point consisted of O’Block, his wife, and his two minor children.

By 2000, the ACFEI offered “Board certifications” in eleven fields and had awarded 17,000 “diplomates” to its 13,000 members (some had “diplomates” in more than one field). By that point, the ACFEI was raking in $2 million a year and O’Block was being paid a $200,000 salary.

The ACFEI Today

Balko reports:

One of the main criticisms of the ACFEI over the years is that the group seems to spend far more time and energy collecting fees from its members than it does verifying the expertise of the people it certifies. In fact, many members over the years have simply been grandfathered into certification or some other form of accreditation. They needed only to send a check and a résumé.

Members who have not been grandfathered need to score 75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} on an ethics test that includes questions like “Is it ever okay to misrepresent yourself?” Members who did not want to take the test could skip it by earning self-reported “points” for publishing articles, attending seminars, or earning a bachelor’s degree. Since the ACFEI did not verify the member’s “points,” members were credentialed on the basis of an “honor system.”

Critics call the ACFEI a “certification mill.” The ACFEI certified a prison inmate in forensic medicine and certified a journalism grad student who had no experience in forensics as a “forensic consultant.” The organization’s low point came when it certified Dr. Katz, who turned out to be a cat. O’Block blamed the cat’s owner for filing a fraudulent application, but the point of the application was to prove that ACFEI does not verify the credentials of the members it certifies.

The Future of ACFEI

Many professional organizations play an important role in helping forensic experts stay abreast of current developments in their field. Organizations that hold experts to serious ethical standards and that certify experts after a rigorous investigation of the expert’s credentials can perform an important service to a legal system that often relies on expert evidence.

When professional organizations purport to legitimize junk science, however, they have the opposite impact on the legal system. That’s one reason why the current administration made a regrettable mistake by ending the National Commission on Forensic Science, which was making a strong effort to separate legitimate science that jurors, judges, and prosecutors can trust from the junk science that has so often been used to convict the innocent.

The ACFEI survived a 2014 shakeup after an investigation by Frontline and ProPublico questioned ACFEI’s credibility. The future of ACFEI after O’Block’s death is unclear. The organization announced that it was suspending its operations, but that announcement was later removed from its website. As of this writing, however, the website is down.

Legal claims alleging copyright infringement of computer software code may be difficult for ordinary jurors to decide, simply because ordinary jurors lack the specialized knowledge needed to understand and compare the software code used by two competing programs. The task is even more difficult when two programs are written in different assembly code languages.

Witnesses who have the technical ability to understand software code might be able to help jurors make that comparison by testifying as experts at trial. In the Ninth Circuit, however, a court ruling disallows expert testimony about the ways in which one copyrighted work is similar to another copyrighted work.

Lawyers representing Robin Antonick in his claim against Electronic Arts are asking the Supreme Court to review the Ninth Circuit’s decision. They argue that the decision is at odds with rulings from other circuits and is particularly important since so much of the nation’s technology industry is centered in California, where copyright disputes must follow Ninth Circuit precedent.

Antonick’s Claim

Robin Antonick created the foundational software for Electronic Arts’ popular John Madden Football. The first version of the game was released for the Apple II in 1988. Antonick also developed the source code for versions that could be played on Commodore 64 and IBM-compatible machines.

Electronic Arts hired other software developers to create the source code for versions of John Madden Football that could be played on Sega Genesis and Nintendo game machines. While Electronic Arts agreed that Antonick was entitled to copyright royalties on the versions of the game that Antonick created, it disputed Antonick’s claim that the Sega versions were “derivative works” that also entitled him to royalties. According to Electronic Arts, the Sega versions were developed independently and were not derived from Antonick’s original work.

After Antonick learned that the developers of the Sega games were given access to his source code for the Apple II game, he sued for unpaid royalties on sales of the Sega versions of John Madden Football. The district court found that two game elements were copyrightable: plays and formations, and the width of the field. The court told the jury that if the Sega versions were substantially similar to the original Apple II version concerning either of those elements, it should then decide whether Antonick proved that they were virtually identical.

Expert Evidence

Antonick called Michael Barr as an expert witness. Barr explained that the computer code that Antonick created was written for a different processor, using a different assembly language, than the computer code written for the Sega Genesis games. Barr explained why the source codes, which look substantially different to the untrained eye, effectively produce the same plays.

Barr also explained other “uncanny parallels” in the programs, including “selection and expression of plays and formations, nonstandard and disproportionate field width, names of plays and variables, and misspellings that could not have occurred absent copying.”

The jury found that Antonick proved substantial similarities between the expression of source code for plays and formations. The jury also found that each of the seven Sega games at issue were virtually identical to Antonick’s version.

The district court, however, granted Electronic Arts’ motion for a judgment notwithstanding the verdict. That decision deprived Antonick of the jury’s award of $11 million in damages.

The district court agreed with the jury that the Sega game versions were substantially similar to the Apple II version, but concluded that the jury should not have heard expert testimony to establish that the versions were virtually identical. The court also held that since the source codes were not in evidence, the jury had no basis (other than the expert’s testimony) for concluding that they were virtually identical.

Relying on Ninth Circuit precedent, the court held that a comparison of the original work and the allegedly copied work must be established by an intrinsic test, not by extrinsic evidence. The intrinsic test is based on an ordinary person’s subjective impressions of whether two works are the same and cannot be guided by other evidence, including expert evidence.

A panel of the Ninth Circuit affirmed the district court. The panel agreed that circuit precedent precludes reliance on expert testimony to establish that two copyrighted works are virtually identical. The full court declined to review the panel’s decision.

Antonick’s Petition

Antonick petitioned the Supreme Court to reverse the Ninth Circuit’s decision. Antonick notes that the Ninth Circuit’s rule originated in a copyright dispute concerning the likenesses of characters in a children’s television show (H.R. Pufnstuf) that were allegedly copied when McDonald’s created its McDonaldland characters. According to Antonick, lay persons can “readily assess the similarities between costumed characters such as Wilhelmina W. Witchiepoo and Mayor McCheese,” but are not equipped to assess the similarities between two computer codes written in different assembly languages.

Antonick argues that the Ninth Circuit’s rule would prohibit experts from testifying in infringement cases that involve a work that is copied from English into another language. Antonick asks how a lay jury should be expected to compare a Harry Potter novel in English to a novel written in Japanese without having an expert translator explain the similarities between the Japanese and English texts. In that regard, Antonick likens his expert witness to a “software code translator.”

Antonick also points out that other federal circuits have decided infringement cases by shifting the perspective from that of an “ordinary observer” to that of the “intended audience.” When the question is whether software has been copied, the intended audience of software code consists of software developers. Those courts allow expert witnesses to assist lay juries in understanding the perspective of the intended audience.

Electronic Arts’ response to the petition is due in October. The Supreme Court will probably decide before the end of the year whether it will review the Ninth Circuit’s decision. If it does, the value of expert opinions in copyright cases will be a key issue.

Juries are reminding bloggers that freedom to speak does not bestow the freedom to ruin lives with false accusations. A jury recently awarded a Dallas photographer more than $1 million after concluding that a husband and wife used social media and blogs to destroy her business.

An even larger verdict was returned against a blogger in the State of Washington who was sued for defaming an Army officer by making a false allegation of sexual assault. Questions about the use of expert witnesses during the trial of that case may need to be resolved on appeal.

David Riggins v. Susan Shannon

Army Col. David Riggins was expecting to be promoted to Brigadier General when he learned from the Army’s Criminal Investigative Division (CID) that Susan Shannon had accused him of raping her when Riggins and Shannon were cadets at West Point. Shannon made the allegation in her blog, Short Little Rebel.

Shannon resigned from West Point in 1986, shortly after the alleged rape. The Washington Post reports that she “she denied any sexual assault to West Point officials at the time.” Riggins graduated and began a successful Army career that included a Bronze Star in Iraq, two tours in Afghanistan, and a series of promotions.

The CID concluded that it could neither prove nor disprove Shannon’s accusation. The Army, however, removed Riggins’ name from a list of recommended promotions, prompting his retirement.

In two blog posts, Shannon pointed to media reports about sexual assaults in the military and announced that Riggins had raped her while she was “out cold” after drinking too much beer. Riggins contended that Shannon wanted to use the blog posts to derail his anticipated promotion. Shannon denied that she knew he was in line for a promotion, but the Post reports that “one of her own witnesses testified that Shannon did know, and that it was the motivation for her writing her first blog post.”

Shannon has a history of controversial blog posts, including a wild allegation that a mass school shooting in Newtown, Connecticut, was “a planned event” and attesting to the belief that “our GOVERNMENT shot those kids and teachers and used Adam Lanza and his family to pull it off.” The jury did not hear about that blog post, but it did hear Shannon testify. Jurors reported that she was “evasive” during cross-examination and made several statements under oath that could not have been true.

Riggins’ Expert Witness

Testifying as an expert, retired Major General Peter Fuller told the jury that the allegation of sexual assault was the most likely reason for the denial of Riggins’ promotion to general. The Army has come under scrutiny by Congress and the press for its failure to curb sexual assaults in the military — a failure, some say, that stems from an unwillingness to acknowledge that the problem exists.

The fear that promoting Riggins would send the wrong signal was, in Fuller’s view, the reason Riggins’ name was withdrawn from the list of officers recommended for promotion.

Shannon’s lawyer argued that Fuller’s testimony was speculative, but the court disagreed. The jury likely considered that testimony when it decided that Riggins lost the opportunity for a substantial pay increase when his promotion was denied. The jury awarded Riggins $3.4 million in compensatory damages for injury to his reputation and lost wages. That award, like the $5 million punitive damages verdict, will likely be reduced before the court enters judgment.

Shannon’s Response

Shannon has blogged about the trial, complaining that Fuller’s testimony was unsupported by “a single ounce of data.” Fuller presumably based his testimony on his experience with the inner workings of the Army. Experience is a form of “data” that experts routinely rely upon. Whether Fuller’s testimony was too speculative to be admissible is a question that might need to resolved on appeal.

Shannon’s blog also complains that her own expert witnesses were unduly restricted. She apparently wanted to use expert testimony to explain her delay in reporting the alleged assault as well as her state of mind, which she characterizes as a diagnosis of “severe depression.” That issue is also one that might be resolved on appeal if Shannon pursues a reversal of Riggins’ judgment against her.

Two suspects in the murder of a University of Kentucky student have presented expert witness testimony in an effort to avoid the possibility of a death sentence. Attorneys representing the young men have called a trained neuro-psychologist to testify in support of a motion which argues the defendants’ brains were not fully developed at the time of the murder. The same tactic was famously used unsuccessfully in the Boston Marathon bomber trial of Dzhokhar Tsarnaev, who was sentenced to death in June of 2015 for his role in the attack.

Kentucky Men Face Murder Charges in Student’s Death

Efrain Diaz and Justin Smith are set to begin trial for the murder of 22-year-old University of Kentucky Student Jonathan Krueger during a robbery in 2015. Diaz, Smith, and another man allegedly attempted to rob Krueger before the incident turned fatal when shots were fired after the victim and a friend resisted. Police claim that all three young men have ties to a street gang known as the Almighty Ambrose, and claim that they were all armed at the time of the robbery. Although statements made to the policy following their arrest have been ruled inadmissible because the officers violated the suspect’s rights to remain silent and request an attorney, prosecutors believe they have enough evidence to pursue murder charges.

The third defendant, who was 17 at the time of the murder, is not eligible to receive the death penalty due to his age, but Diaz (20 at the time of the killing) and Smith (18 at the time) can both be charged with capital murder and be sentenced to death should they be found guilty. In an effort to avoid the death penalty, attorneys representing the two capital defendants have argued that their brains were not properly developed at the time of the killing. To bolster their argument, the defense has called on a psychology expert in brain development.

Brain Development Psychologist Testifies in Kentucky Trial

During a pretrial motion hearing requesting a ruling that the defendants are ineligible for the death penalty due to brain underdevelopment, attorneys for Diaz and Smith called on Laurence Steinberg, a psychologist at Temple University who specializes in brain development. Dr. Steinberg testified only in front of the judge, who will make the final determination of whether or not Diaz and Smith are sufficiently competent to be tried in a capital case. According to Kentucky law, anyone who is older than 17 at the time they commit a crime can face capital charges, however, attorneys for Diaz and Smith argue that the advances in brain development psychology have shown that the judge should consider more than simply the age of the defendants.

Dr. Steinberg told the court that the brains of 18 to 20-year-olds are typically closer in developmental maturity to teenagers than to adults, but conceded that he was speaking in generalities because there is not a reliable way to measure individual brain maturity levels. Still, Steinberg testified that over the last decade, advances in brain research have indicated that the type of maturation previously assumed to occur between the ages of 10 and 18 actually continues well into the early-to-mid-20s, which suggests that assumptions that the law carries about the mental competence of 18-to-20-year-olds is based on a flawed understanding of human development.

Steinberg explained that the type of impetuous decision-making heavily influenced by peer pressure and other negative outside influences which we typically associate with teenagers is, in fact, highly influential in brains of 20-year-olds as well. Although the legal system, led by a 2005 Supreme Court decision banning the death penalty on anyone younger than 18, has consistently drawn a bright line at 18, Steinberg noted that research suggests this conclusion is incongruent with biological reality. During a cross-examination period, the lead prosecutor in the case had Steinberg admit that 18-to-20-year-olds do know the difference between right and wrong, and that he was personally against the death penalty.

Judicial Ruling Could Challenge Kentucky Death Penalty Statute

After hearing Steinberg’s testimony and reviewing an expert witness report on brain development that he prepared for the court, the trial judge will determine if Diaz and Smith are ineligible for the death penalty despite being old enough at the time of the incident. Kentucky law, which is similar to other death penalty state laws, sets the capital sentence bar at 18, but legislators likely did so without substantial contribution from the brain development science community. Should the trial judge agree with defense attorneys and Dr. Steinberg, he will upset the apple cart and open the door for an exception to Kentucky’s law which was not included by the state legislature.

Ultimately, it is likely a tough battle for the defendants to fight as courts have shown reluctance to turn to brain development science for information to change assumptions made by the criminal justice system. Dzhokhar Tsarnaev, convicted for his role in the Boston Marathon attacks, attempted to use a similar tactic to avoid the death penalty in federal court two years ago, but was unsuccessful because jurors ultimately found that the ability to understand right from wrong was sufficient to justify a capital sentence. This underlying argument, coupled with historic resistance by judges to defy death penalty parameters set in law, suggests it is improbable Diaz and Smith will be found ineligible for the death penalty, but capital sentencing law in Kentucky and across the country could face a stiff challenge should the judge side with the defense.

In many states, experts must testify that they hold their opinions to a reasonable degree of certainty. That standard is controversial, since experts (like everyone else) can rarely be certain about anything, and the fact that an expert is certain doesn’t mean the expert is right. After all, scientists were once certain that the sun revolved around the Earth. Even the Supreme Court’s Daubert decision acknowledges that “it would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty; arguably, there are no certainties in science.”

The “reasonable certainty” standard often poses a particular problem for medical experts, since medical science is far from certain. While some have criticized medical decision-making as “fraught with inherent subjectivity,” a more charitable view is that medical opinions are based on knowledge, and that medical knowledge is constantly evolving.

The National Commission on Forensic Science has urged courts to abandon the “reasonable certainty” requirement because it is meaningless, misleading, and contrary to a reality-based view of how scientists form opinions. The Commission instead urges courts to regard expert opinion testimony as admissible if it is reasonable and based on evidence — a view that is consistent with, and arguably a simplified formulation of, the Daubert standard.

A recent decision of the Superior Court of Pennsylvania illustrates the difficulty confronting medical experts who are asked to state opinions to a reasonable degree of certainty. The appellate court affirmed the dismissal of a medical malpractice claim because the expert candidly admitted that while his evidence-based opinion represented the most reasonable explanation for the plaintiff’s injury, he could not be certain of his conclusion.

Expert’s Testimony

Richard Nilles sued Dr. Kenneth Hu for medical malpractice in Butler County, Pennsylvania. Nilles alleged that Dr. Hu positioned him incorrectly while performing a needle biopsy of his prostate. He attributed Dr. Hu’s alleged negligence to the development of osteitis pubis, a deterioration of the pubic bone.

Pennsylvania law requires a medical malpractice patient to offer a medical expert’s testimony to prove the standard of care the physician should have provided, the physician’s breach of that standard, and the injury caused by that breach. Nilles attempted to prove Hu’s negligence through the testimony of Dr. M.S. Brodherson.

Dr. Brodherson testified that the biopsy needle “more likely than not went up against the pubic symphysis and irritated the bone there taking bacteria from the rectum, which is always a dirty part of the body, through the body and seeded the pubic bone, which eventually developed into an inflammatory condition — osteitis pubis.”

On cross-examination, Dr. Brodherson conceded that osteitis pubis can be caused by a fall or trauma. Other evidence established that Nilles fell and fractured his spine about six months before the needle biopsy. Dr. Brodherson nevertheless ruled out the fall as a cause of osteritis pubis because (1) a spinal fracture caused by a fall on the back is unlikely to affect the pubic bone or to cause osteitis pubis, (2) there was no medical evidence showing that osteitis pubis affected Nilles before the needle biopsy, and (3) Nilles had no complaint of pubic bone pain until after the needle biopsy.

Dismissal of Nilles’ Claim

Although the testimony noted above seems to support Nilles’ malpractice case, Nilles’ proof became problematic when Dr. Brodherson testified that his opinion that Nilles’ osteitis pubis was based on the needle biopsy was a “theory.” He also acknowledged that he was unable to testify to a reasonable degree of certainty that his theory was correct.

Dr. Brodherson candidly admitted that there was no way to be certain that the needle went through the prostate and entered the pubic bone. He testified, however, that “the evidence points so much in that direction that this is the only reasonable hypothesis.” He also testified that there was “no other reason” for Nilles “to have gotten osteitis pubis and I am hypothesizing that it could be that the needle went through the prostate, touched the pubic bone, either infected it or inflamed it and we now have a patient with disabilities.”

The trial court dismissed Nilles’ case without submitting it to the jury. The appellate court agreed with the trial court that Dr. Brodherson’s use of equivocal terms during his testimony, including “could,” “conceivably,” and “possibly,” and his admission that he did not hold his opinion to a reasonable degree of medical certainty, left the jury to speculate whether Dr. Hu’s actions caused Nilles’ injury.

The Troublesome Reasonable Certainty Standard

In some states, Dr. Brodherson’s testimony would have been sufficient to establish causation. The Wisconsin Supreme Court, for example, decided that in the context of medical opinions, probability and certainty are equivalent concepts. The Court held:

The term “medical certainty” is misleading if certainty is stressed to mean absolute certainty or metaphysical certainty. Medicine is not based upon such certitude but rather upon the empirical knowledge and experience in the area of cause and effect. The term “medical probability” more accurately expresses the standard.

Both the “reasonable certainty” standard and the “reasonable probability” standard reject opinions that are based on speculation or conjecture. Testimony that a theory of causation is “possibly” true is not admissible. However, testimony that expresses a belief that a theory is likely true is sufficient in states like Wisconsin. That standard makes sense, given that a jury is allowed to find negligence when a jury finds it to be more likely than not that a doctor caused injury by breaching a standard of care.

While Dr. Brodherson may have used terms like “possibly” and “conceivably,” those terms should not be taken out of context. The testimony quoted in the appellate decision makes clear that Dr. Brodherson identified the biopsy as the most likely cause of Nilles’ osteitis pubis. He testified that the biopsy needle “more likely than not” passed through the prostate, that the needle passing through the prostate was the “only reasonable hypothesis” that explained Nilles’ condition, and that there was “no other reason” Nilles would have contracted the disease.

If Dr. Broderson arguably undermined his opinion by also using the words “possibly” or “conceivably,” arguable inconsistencies in testimony are usually left to a jury to sort out. Pennsylvania’s rigid adherence to a “reasonable certainty” standard for expert opinions deprived Nilles of a jury’s evaluation of Dr. Brodherson’s testimony. States that have a more realistic view of expert opinions would probably have allowed a jury to decide whether Dr. Brodherson’s testimony established that Nilles was a victim of malpractice.

A judge in Las Vegas has decided that Dr. Derek Duke, frequently employed by insurance companies as an independent expert, will not be allowed to testify in a personal injury case because of his bias against plaintiffs. The unusual ruling, based on an extensive review of Dr. Duke’s independent medical reports, raises questions about the kind of challenges to an expert’s credibility that can have an impact on the expert’s reliability.

Independent Medical Experts

The plaintiff in an injury lawsuit typically relies upon his or her own treating physician to provide expert testimony about the cause and nature of an injury, and to provide a prognosis about the future impact of the injury, including the likelihood that the injury’s residual effects will be permanent. Since treating physicians are in the best position to evaluate injuries, their expert testimony is generally uncontroversial.

At the same time, it is widely believed (particularly by insurance defense lawyers and claims adjusters) that physicians feel a duty to help and support their patients, and that their desire to do so may color their opinions. Treating physicians are not generally accused of giving false testimony, but they are often suspected of making a less than objective assessment of the injury’s present and future impact upon a patient.

For that reason, insurance companies often employ an “independent” medical expert to provide a second opinion. In some cases, the independent expert largely agrees with the treating physician. Those cases tend to settle. In some cases, the independent expert has a genuine, fact-based disagreement with the treating physician. And in some cases, the perception exists that the independent expert is a hired gun who slants testimony to favor the insurance company.

Expert Banned

A judge in Las Vegas recently decided that Dr. Derek Duke, an independent medical expert who is frequently hired by insurance companies — so frequently that he earns $1 million a year by testifying as an expert — is less than independent. According to Judge Timothy Williams, Dr. Duke has “a history of personal bias as to some treating physicians and extreme bias resulting in prejudice against personal injury plaintiffs.”

The Las Vegas Review-Journal reports that Judge Williams held eleven days of hearings (an unusually long time to take evidence about an expert’s opinions) before excluding Dr. Duke’s testimony in a personal injury case brought by Mitch Wilson. The Review-Journal describes Judge Williams’ 35-page opinion as “scathing.”

The judge based his ruling, in part, on a review of 371 independent medical reports that Dr. Duke prepared. The judge found that “Duke disagreed with the treating doctor about 95 percent of the time and that 86 percent of the time he found there was no injury or a sprain when the treating doctor concluded there was an injury or more than a sprain or strain.”

Finding the absence of any injury at all when a treating physician has documented an injury is unusual. Finding the absence of any injury 86{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the time is, as the judge noted, convincing evidence that Dr. Duke provided results-oriented opinions that were designed to benefit the parties who hired him.

The court noted that Dr. Duke often attributed symptoms of injuries to the patient’s depression or other psychological conditions. The court was skeptical of Dr. Duke’s claim that, despite doing no neuropsychological testing, he was able to diagnose mental health conditions simply by talking to the patient.

According to Judge Williams, “Dr. Duke’s medical opinions are personal and his methodology unreliable. The Court further finds that Dr. Duke’s medical opinions rely heavily on speculation and other irrelevant factors.”

Dr. Duke’s History

This is not the first occasion on which Dr. Duke has been barred from testifying. In 2015, District Judge Mark Denton also found that Dr. Duke was unable to give reliable testimony because of his bias.

In a third case involving Dr. Duke’s testimony, a plaintiff’s attorney is suing Duke, claiming that he conspired with Allstate Insurance to interfere with an insurance contract because of his “extreme bias.” The attorney claims that Allstate refused to pay for surgery in reliance on Dr. Duke’s opinion that the surgery was unnecessary. Many plaintiffs’ lawyers and some judges have criticized Allstate over the years for its aggressive refusal to settle claims, particularly when injury victims are represented by a lawyer.

The rulings reflect a long history of Nevada plaintiff’s lawyers challenging Dr. Duke’s independence. One legal blogger cites federal cases in which courts concluded that Dr. Duke’s alleged bias is a matter for the jury to decide, as well as a recommendation from a Clark County District Court Discovery Commissioner that Dr. Duke be excluded from testifying because he is not “independent and objective in his evaluation of personal injury litigants.”

Credibility v. Reliability

Those decisions illustrate the fuzzy line between an expert’s credibility (an issue for the jury to decide) and the reliability of an expert’s opinion (an issue for the court to decide). Nevada is not a pure Daubert state, but Nevada judges are charged with excluding expert testimony that is not based on a reliable methodology. Consistently substituting speculation and bias for an objective factual analysis is arguably an unreliable methodology that goes beyond disputes about the doctor’s credibility.

This case is unusual in that the evidence of Dr. Duke’s bias was extreme. Most independent medical experts are either unbiased, or their biases are a matter of opinion that should be left to the jury. The court’s decision to exclude Dr. Duke’s testimony illustrates the rare case in which bias is so profound that it influences the independent medical expert’s methodology, making the expert’s opinions subject to exclusion by the trial court.