Category Archives: ExpertWitness

Arson Expert Challenged by Ohio Prosecutor

Arson Expert Challenged by Ohio Prosecutor

A defendant who is charged with aggravated arson in Ohio wants to call a fire expert to support his theory of how the fire started. The prosecution filed a Daubert motion that challenged the expert’s qualifications to testify and his methodology. The trial court has not yet indicated how it will rule.

Facts of the Case

A fire in Middleport, Ohio destroyed two businesses in May 2016. The fire occurred at night, after the stores were closed. Apartments on the second floor of the two buildings were unoccupied and no lives were lost.

The state fire marshal determined that the fire was suspicious. Reports at the time of the fire suggested that someone started it by lighting a gas can and flinging it into one of the buildings or into an alley behind the buildings.

The Major Crimes Task Force received a tip that the fire was started intentionally. Police arrested Keith Day after questioning witnesses at the scene. A grand jury later returned an indictment for two counts of arson.

Witnesses apparently told the police that Day made threatening statements after being kicked out of a tavern and that the tavern may have been the actual target of the fire.

Qualifications of Defense Expert

Ohio is essentially a Daubert state, although the state’s judicial decisions suggest that Ohio judges may have more flexibility than federal judges in determining the reliability of expert testimony. Judges are nevertheless required to determine whether an expert’s opinion meets a threshold standard of reliability. If it does not, the judge must exclude the testimony.

The prosecution challenged the qualifications of the defense expert. Ohio follows the general rule that an expert witness is qualified to testify when the expert has scientific, technical, or other specialized nature that is beyond the knowledge or experience of lay persons.

The prosecution apparently agrees that the defense expert, Dr. David Manuta, was a qualified expert in the past. Dr. Manuta has a Ph.D. in chemistry and has given expert testimony in trials or depositions in dozens of civil and criminal cases.

The prosecution argues, however, that Dr. Manuta is no longer “up to speed” and is therefore not qualified to testify as an expert. That argument is based in part on the fact that Dr. Manuta has not published any recent articles in his field of expertise. Publication, however, has never been seen as a requirement that determines whether an expert is qualified to testify.

The prosecution also made the following argument based on Dr. Manuta’s testimony at a Daubert hearing. According to the prosecutor:

Dr. Manuta was not able to recall fundamental rules from the National Fire Protection Association (NFPA). NFPA is the “standard” for such science according to Dr. Manuta. Yet, on cross examination he said there was not a level of certainty or even varying levels of certainty as outlined in the NFPA Manual. Level(s) of certainty are crucial to a scientific expert testifying. It wasn’t until the state’s attorney handed him a copy to review that he realized the different levels.

Failing to recall a specific detail in a manual may affect the credibility of an expert’s testimony at trial, but no witness has perfect recall. The prosecutor can use Dr. Manuta’s failure of recollection to challenge his credibility at trial, but Ohio law makes clear that the jury, not the judge, should decide whether an expert is credible.

It seems unlikely that an Ohio judge would disallow an expert’s testimony because his recollection of details was faulty during a Daubert hearing. This case nevertheless illustrates the importance of preparation. If experts rely on professional or scientific standards, they should review those standards carefully before testifying.

Bias

The prosecution argued that Dr. Manuta is biased because he “testified that he was hired by Defense Counsel to help Defendant, paid to help Defendant, and started the scientific method with the idea to help Defendant.” Of course, all expert witnesses are hired and paid in the hope that they will provide helpful testimony to the party that hired them.

An expert’s search for the truth is not inconsistent with an attempt to determine whether the truth will assist the party who hired the expert. In the absence of evidence that Dr. Manuta slanted his conclusions to favor the defense, the question of bias is one that the jury can consider as it evaluates Dr. Manuta’s testimony. The prosecutor’s assertions of bias should not prevent the expert from testifying.

Methodology

The prosecution’s final argument is that Dr. Manuta did not conduct any experiments to verify his hypothesis as to how the fire started. Yet expert opinions can be based on a review of existing data, and if that data is sufficient to support the expert’s theory, there may be no need to conduct independent experiments.

Press accounts are a bit murky as to the data that Dr. Manuta relied upon and the conclusions he drew from that data. Still, the judge will likely reject this challenge unless there is a clear showing that Dr. Manuta’s theory as to the fire’s origin could only be deemed reliable if it is supported by experimental results.

Expert Changed His Testimony to Support Client’s Case

Expert’s testimony in another trial raises serious questions about whether he changed his testimony to support his client’s case

A judge has ordered Montana Attorney General Tim Fox to preserve his office’s communications with an expert witness in a lawsuit against lethal injections, along with the results of any internal investigation into allegations that the witness was told to change his testimony.

The Underlying Case

Death-row inmates Ronald Allen Smith and William Gollehon sued the state of Montana over its plans to use pentobarbital in lethal injections after the Department of Corrections was no longer able to obtain pentothal, the original barbiturate that the state used in its two-drug execution protocol.

Montana law requires that an “ultra-fast-acting barbiturate” be used in lethal injections.

The Montana State Department of Justice hired Roswell Lee Evans, the dean of Auburn University’s pharmacy school to support the state’s argument that a drug called pentobarbital met the requirements of Montana state law for use in executions.

At trial, Evans testified that pentobarbital met Montana’s “ultra-fast-acting barbiturate” requirement. However, Evans’ original declaration did not address this “ultra-fast-acting” requirement.

The state’s argument was ultimately unsuccessful and District Judge Jeffrey Sherlock ruled that pentobarbital did not meet the requirements of the Montana law, stating that, “Under the express terms of the statute, the State of Montana is not allowed to use the ‘fastest acting barbiturate available’ or a ‘relatively fast-acting barbiturate,’ only an ‘ultra-fast barbiturate.’… The State of Montana is hereby enjoined from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modified in conformance with this decision.” This ruling effectively halted all executions in Montana.

The Tennessee Case

The attorneys for two of Montana’s death-row inmates located the transcript from an unrelated case in Tennessee where Evans also testified as an expert witness. In the transcript, Evans appears to admit that he changed his original opinion on pentobarbital to better support the State of Montana’s argument. The attorneys requested that District Judge Deann Cooney order the preservation of documents so that they could investigate whether Evans had been coerced to change his original testimony.

Jim Taylor, the Legal Director of the ACLU of Montana has stated that it appears that government attorneys persuaded Evans to change his original declaration. Taylor has argued that if Evans had not changed his testimony, the case would never have gone to trial.

The Order

Judge Cooney entered an order in this matter on December 12, 2016, stating, “This court agrees Dr. Evans’ testimony in West v. Schofield raises serious questions about whether he changed his testimony to reflect what the defendants wanted him to say as opposed to what he believed to be true.”

The Response

The Montana Department of Justice has denied telling Evans to change his testimony. Spokesperson for Fox, Eric Sell, stated, “The state will comply with the court’s order.… We are confident that, after review, the court will find that we did everything right.”

Assistant Attorney General Ben Reed has stated that Evans’ testimony was consistent because barbiturates are typically classified by their duration and not their rapidity.

Election Experts Testify in Virginia Voter ID Case

Virginia Taxpayers Spent More Than $38 Million on Litigation Against State Institutions

Virginia has spent more than $38.6 million defending and settling claims against jails, sheriff’s departments, prisons and mental health facilities during the past five fiscal years, according to data from the Virginia Department of the Treasury.

The Report

The Virginia Department of Treasury recently released a paper that reports that Virginia has spent more than $38.6 million defending and settling claims brought by families of those who have died while incarcerated and claims involving excessive force by deputies, wrongful arrests, and other acts of negligence.

The paper also reports that plaintiffs in four additional pending wrongful death lawsuits are suing for a collective $115 million in damages.

Details of the Spending

Virginia spent $2.2 million to defend and settle a lawsuit brought by the family of Billy Creed. Creed was a delusional and paranoid man who stole a car, went to jail and died within a few days of his 2006 arrest. Creed’s family accused guards at the Prince William-Manassas Regional Adult Detention Center of beating, pepper-spraying and choking Creed before he died.

Virginia also spent $1.2 million to defend and settle a lawsuit brought by the family of James Robinson, who had a seizure while driving, crashed his car into a house and was taken to the city jail, where he died within two weeks. The lawsuit claimed that Robinson was not given his seizure medication and developed a painful infection in his lungs that was ignored by guards and medical staff.

Virginia spent $677,000 to defend and settle a lawsuit filed by the family of Guido Newbrough, a German national who was taken to Piedmont Regional Jail in Farmville to await deportation because of a felony criminal conviction. Newbrough died within eight months of his arrival. His family said he developed a staph infection so severe he couldn’t walk.

Richmond Sheriff’s Office and Richmond’s City Jail

According to the report, the taxpayers of Virginia have spent almost $6 million defending and settling lawsuits against the Richmond Sheriff’s Office and the Richmond City’s Jail over the past 5 years. That is $1.5 million more than the next agency on the list and $5.2 more than the  average of agencies with at least $100,000 in claims.

The Response

Richmond Sheriff C.T. Woody Jr. said in an interview, “Y’all say, ‘You’re killing people down there’ … No, the people are dying when they come here…. Yes, they are dying … They are dying here, but I think (their families) should carry their pain and their anguish to the people who can actually do something about the bigger picture: to the General Assembly, the lawmakers, the people who control the funding.”

Experts have said that Woody is half right and that the deinstitutionalization that pushed people out of state-run mental facilities and into communities ill-equipped to accommodate them has resulted in their reinstitutionalization in jails. However, Frank Cohen, a professor emeritus at the State University of New York at Albany and a former federal court monitor overseeing juvenile justice in Ohio has said, “No, people with mental illnesses don’t belong there, but that doesn’t mean (Woody) doesn’t have a constitutional obligation to take care of them.”

Prostitution written on a sign

Appellate Court Affirms Exclusion of Expert Testimony Regarding Culture of Prostitution

The Court of Appeals for the Third Circuit rejected the government’s contention that its expert witness in the “culture of prostitution” should be permitted to testify in an interstate prostitution trial. While the appellate court agreed with the district court that the expert testimony was not relevant, it also agreed that the district court might be entitled to admit the testimony if the defense implies that the prostitutes were not induced to traveled across state lines by the defendants.

Facts of the Case

Four men from Chambersburg, Pennsylvania were charged with operating an interstate prostitution ring using underage girls. News reports state that the men are accused of operating an escort service that advertised its services on an internet site that features classified advertising.

The men reportedly furnished prostitutes to clients in Maryland, Virginia, West Virginia, Florida, Rhode Island and Washington, D.C. Transporting individuals across state lines for the purpose of prostitution is a federal crime. It is a more serious crime when the individuals are minors. The interstate nature of the activity allowed the government to charge the men with a number of federal sex trafficking offenses.

Police investigators claim that the men compensated the prostitutes, some of whom were teenage girls, with drugs rather than cash. The ring allegedly operated from 2012 until the men were arrested in 2015.

Expert Witness

The government notified the defense that it intended to call Dr. Sharon Cooper as an expert witness to provide background on the culture of sex trafficking. The government did not claim that Cooper’s testimony would prove any fact required to convict the four men. Rather, the government argued that the testimony would “de-mystify” the prostitution subculture and would provide “education and context” for the jury.

The defense objected that the proposed testimony would not be relevant. For that reason, it asked the court to bar the government from presenting Cooper’s testimony. The district court agreed that the testimony was not relevant, although it ruled that the testimony might become relevant after the government presented evidence of the alleged crimes.

The U.S. Court of Appeals for the Third Circuit agreed to hear the government’s pretrial appeal of the district court’s ruling.

Court of Appeals’ Decision

The Court of Appeals affirmed the district court’s ruling after reviewing the decision under the Daubert standard. Daubert requires the district court judge to act as a gatekeeper to prevent the jury from hearing expert testimony that does not satisfy the dictates of Rule 702 of the Federal Rules of Evidence.

The Court noted that Rule 702 conditions the admissibility of expert testimony on three standards: the expert must be qualified; the expert’s testimony must be reliable; and the testimony must assist the jury.

Most Daubert challenges go to question of reliability. In this case, however, the expert’s proposed testimony did not satisfy the third standard because it would not have helped the jury decide whether the defendants were guilty.

The third standard requires expert testimony to be relevant, but the Court noted that the standard “is higher than bare relevance.” To be helpful, the expert’s scientific or technical expertise must help the jury understand the facts or decide a disputed issue. Expert testimony that is not related to a fact that the jury must decide is not helpful.

In this case, the disputed issue was whether the defendants were guilty of sex trafficking. On its face, the expert’s testimony about the subculture of prostitution would not help the jury decide whether the defendants transported women across state lines with the intent that they would engage in prostitution.

Potential Admissibility

The government relied on a decision from a different circuit that affirmed a conviction after an expert testified about the reasons why prostitutes might submit to the direction of a pimp. The testimony was relevant only because cross-examination of the prostitutes implied that they traveled with the defendant voluntarily and that they were working independently, not at the direction of the defendant. The expert testimony rebutted the inference that the women would not have remained with the defendant if, as they claimed, he abused them and forced them to travel across state lines to engage in prostitution.

Relying on other federal court decisions as precedent, the appellate court decided that it would be premature to allow the expert’s testimony unless and until it became relevant. If cross-examination of the prostitutes or other evidence implies that no person in the position of the prostitutes would have submitted to the defendants’ directions, expert testimony to explain why prostitutes obey their pimps might become relevant. Still, the judge will need to decide whether an expert’s explanation of the behavior of prostitutes will add anything helpful to the prostitutes’ explanation of their own behavior.

Death in the hospital

Experts Disagree in “Dr. Death” Trial

The latest physician to be dubbed “Dr. Death” by the media was recently found guilty of aggravated assault. A Dallas jury rejected the testimony given by his expert witness and determined that he recklessly maimed a 74-year-old patient. The jury sentenced the former surgeon to life in prison.

Facts of the Case

Christopher Duntsch practiced as a neurosurgeon in Texas, botching one surgery after another. His failures include:

  • Floelle Brown died of a stroke after Duntsch sliced a vertebral artery during surgery.
  • Kellie Martin died of massive blood loss after Duntsch cut through her spinal cord and slashed a major artery.
  • Lee Passmore lives with chronic pain and his ability to walk has been seriously impaired since Duntsch removed a herniated disk and mispositioned the cage that replaced it.
  • Barry Morguloff, another victim of a mispositioned cage during a spinal fusion, suffered from a bone chip that pushed into a nerve root, leaving him unable to move his left foot.
  • Jerry Summers has been unable to move his arms or legs since Duntsch performed neck surgery.

While Duntsch was arrested for injuring or killing several victims of his errant surgeries, the prosecution decided to focus on Mary Efurd. The 74-year-old woman was in excruciating pain after Duntsch performed surgery to fuse two of her vertebrae.

Duntsch was taken to trial on a single count of aggravated assault. The aggravating factor was Duntch’s abuse of an elderly victim. To obtain a guilty verdict, the prosecution was required to prove that Duntsch “intentionally, knowingly, recklessly, or with criminal negligence” injured an elderly person.

The decision to charge a physician with a crime for the alleged abuse of a patient during surgery was unusual and perhaps unprecedented. The jury, however, determined that the facts fit the crime.

Evidence that Duntsch injured other patients was introduced over defense objections. Duntsch’s lawyer argued that the trial was about Efurd’s surgery and that Duntsch’s performance in other surgeries was not relevant. The prosecution prevailed in its argument that the collective history of Duntsch’s surgeries was relevant proof that Duntsch routinely acted with reckless disregard of the appropriate standard of surgical care, and that the outcome of Efurd’s surgery could not be attributed to an ordinary mistake in light of Duntsch’s history.

Prosecution’s Expert Testimony

To prove that Duntsch acted with reckless disregard of the appropriate standard of care, the prosecution called several of his former patients as witnesses. Their emotional testimony may have tipped the scales against Duntsch, but more relevant testimony about Duntsch’s recklessness came from the prosecution’s expert witnesses.

Dr. Robert Henderson, who performed surgery on Mary Efurd to correct Duntsch’s error, testified that he “found implants placed in muscle instead of on bone, a screw drilled into her spinal cavity and a nerve root that had been amputated.”

Vascular surgeon Randall Kirby, spine surgeon Luis Mignucci, and neurosurgeon J. Michael Desaloms all testified that Duntsch’s errors were not, as the defense suggested, ordinary mistakes that any surgeon could commit. Mignucci agreed that “bad outcomes happen all the time” but refused to characterize Duntsch’s performance as a mistake.

Defense Expert

Conceding the obvious, Duntsch’s attorney told the jury that Duntsch was “not a skilled surgeon.” He blamed the errors on a chaotic operating environment rather than intentional or reckless behavior. Duntsch’s apparent indifference to the harm he caused and his decision to keep operating probably made that argument hard for the jury to accept.

Duntsch called just one witness in his defense. Testifying as an expert, Dr. Carlos Bagley, the director of the Neurological Surgery Spine program at UT Southwestern, agreed that Duntsch’s performance was “sub-optimal.” He affixed blame on Baylor Regional Medical Center for failing to report Duntsch after Kellie Martin bled to death and on Dr. Kevin Foley for giving Duntsch a positive reference despite knowing of his adverse outcomes.

The University of Tennessee Health Science Center allowed Duntsch to practice despite knowing that his skills were questionable, and the Dallas Medical Center CEO did not inform the hospital’s chief medical officer of a bad outcome in one of Duntsch’s surgeries. The Texas Medical Board allowed Duntsch to keep his license for more than a year after his negligence was first reported.

In short, according to Dr. Bagley, the entire system failed, not just Duntsch.

Verdict and Sentence

The attempt to blame the system for Duntsch’s failures did not relieve Duntsch of responsibility in the eyes of the jury. After a 13-day trial, the jury deliberated only a few hours before finding Duntsch guilty.

A felony defendant in Texas can elect to have the jury impose sentence. Duntsch did so and the jury sentenced him to life in prison.

Indiana US State Law Legal System Concept

Indiana Allows Police Officer to Testify as Facebook Expert

A man convicted of stalking a woman by sending her Facebook messages from several different accounts complained on appeal that a police officer should not have been allowed to give expert testimony linking him to the Facebook messages. The Indiana Court of Appeals concluded that the officer’s expert testimony was properly admitted.

Facts of the Case

Christopher Johnson met a woman identified as D.K. in 2012. He repeatedly contacted her by means of telephone calls, texts, and social media. D.K. did not welcome Johnson’s attention and asked him to stop. When he did not, D.K. obtained a protective order that prohibited further contact. She obtained the order in May 2014 but the contact continued.

Johnson went to D.K.’s home in 2015. When he was arrested for violating the protective order, he denied that he knew the order existed. The police then served him with the order and released him.

Johnson went to D.K.’s home twice after being served with the protective order. On the second occasion, Johnson was arrested. He was charged with multiple counts of stalking for visiting D.K.’s home, for texting her, and for sending Facebook messages both before and after the protective order was entered.

Expert Testimony

The Facebook messages were sent to D.K. from several accounts. The prosecution alleged that the accounts all belonged to Johnson, who opened them using false identities.

To prove that claim, the prosecution offered the expert testimony of Sergeant Steven Schafer, a member of the Computer and Digital Forensic Unit of the Indianapolis Metropolitan Police Department. He testified as an expert in “forensic analysis of social media records and digital trails.”

The defense objected that Schafer was not qualified to link Johnson to the Facebook accounts. The trial court overruled that objection and permitted Schafer to testify.

Schafer testified that he attributed five Facebook accounts to Johnson that were not in Johnson’s name. He concluded that the accounts belonged to Johnson because each account user logged into Facebook from the same IP address. In addition, each account was associated with the same “cookie” on Johnson’s computer. Those facts caused Schafer to conclude that the same person, presumably Johnson, logged into each Facebook account from Johnson’s computer.

The defense presented no expert testimony to counter Schafer’s testimony. Johnson was convicted. On appeal, Johnson argued that the trial court erred by admitting Schafer’s expert testimony.

Appellate Court’s Ruling

Schafer is not a computer scientist. He learned about the significance of IP addresses and cookies from “classes put on by … the Indiana State Police cyber crimes unit,” a Secret Service class on internet investigations, “several small classes,” online training provided by Internet Crimes Against Children, and on-the-job training which included an analysis of social media records in 300 or more cases.

The appellate court’s decision does not reveal whether the classes were taught by computer scientists or other qualified personnel. The court of appeals nevertheless concluded that the trial court did not abuse its discretion in allowing Schafer to testify as an expert.

Although the court of appeals’ analysis is cursory, it seems likely that Schafer’s training was sufficient because the concepts of internet cookies and IP addresses are so widely understood that even someone with rudimentary training would be able to explain them. In addition, the court noted that the case was tried to a judge, not a jury. Judges are presumably less likely to be swayed by police officers who are labeled as “experts” than juries might be.

If the case had involved more complex technological issues, the outcome might have been different. Presumably, if there had been a serious dispute about the accuracy of Schafer’s testimony, the defense would have called a computer scientist as an expert witness to contest Schafer’s conclusions.

Polar Bear Analogy

A second issue on appeal addressed one of Schafer’s conclusions. When asked how likely it was that five different people would have used a device that shared the same Facebook cookie and the same IP address, Schafer answered that it was less likely “than being struck by lightning while hitting the super lotto and being bitten by a polar bear at the same time.”

The answer was colorful but not supported by facts. Schafer is not a statistician but the question called for a probability analysis. An honest answer would have been “I don’t know.” The appellate court nevertheless concluded that Schafer’s answer was merely an analogy, not a statistical analysis. The opinion does not explain how an inaccurate analogy that isn’t grounded in fact could be relevant evidence.

Schafer’s answer could not have been helpful to the judge because the judge could just as easily have drawn the same conclusion that several different people would be very unlikely to send similar messages to the same person from the same computer. Since Schafer wasn’t qualified to give an expert statistical opinion and since his lay opinion was not helpful, he should not have been allowed to answer the question.

The defense, however, did not object to the question, which made it possible for Schafer to answer. The defense objected when the prosecution asked whether Schafer could say definitively that one person sent all the Facebook messages, and the judge sustained the objection because Schafer clearly did not have any basis for offering an expert opinion. The judge might also have sustained an objection to the probability question if one had been made.

In the absence of an objection, Johnson needed to show that Schafer’s answer deprived him of a fundamentally fair trial. Since there was no reason to believe that Schafer’s colorful answer influenced the outcome of the trial, Johnson was not entitled to reversal of his conviction.

Lessons Learned

Two lessons should be drawn from this decision. First, experts should not express opinions they are not qualified to give. Police experts have been criticized in some instances for their zealous desire to help the prosecution, and this appears to be another case of a police expert going too far.

Second, when experts are qualified in a narrow field (such as computer forensics) and are asked for a question that requires additional expertise (such as a probability analysis), the opposing attorney should object. In the absence of an objection, it is difficult to base an appeal on an expert’s improper answer.

Car Crash

Engineering Expert Not Required to Test Alternative Product Design Before Testifying

When product liability cases are based on the claim that a product was defectively designed, plaintiffs typically offer proof that a better design would have produced a safer product. In Quilez-Velar v. Ox Bodies Inc., the Court of Appeals for the First Circuit was asked to decide whether an expert witness should be permitted to testify about an allegedly safer alternative design when the expert had not tested that design. The Court affirmed the decision of the federal District Court of Puerto Rico to permit the expert testimony.

Facts of the Case

Maribel Quilez-Bonelli was driving a Jeep Liberty on a highway overpass in the City of San Juan, Puerto Rico. Maribel struck the rear of a truck that was either stopped or moving very slowly. The truck was owned by the Municipality of San Juan and was operated by San Juan employees.

Since heavy trucks are made to ride higher off the ground than cars, a car that rear-ends a truck may roll under the truck. When that happens, the top of the car is usually destroyed, resulting in fatal injuries to the driver and passengers.

Maribel’s Jeep traveled under the truck. The truck body hit Maribel in the head. She died from her injuries.

Wrongful Death Lawsuit

Most commercial trucks are required to have rear underride guards. An underride guard hangs down from the back of the truck. Its purpose is to keep a car from passing beneath the truck in the event of a rear-end collision. The San Juan truck had a rear underride guard that was manufactured by Ox Bodies, Inc., but the underride guard failed to prevent the Jeep from rolling under the truck.

Maribel’s husband and other family members sued the Municipality of San Juan and certain other defendants in a Puerto Rico court. They eventually sued Ox Bodies in federal court. They alleged that the rear underride guard attached to the back of San Juan’s truck was defectively designed.

A trial was held in the federal case. The judge instructed the jury that if the product’s design caused Maribel’s death, the burden was on Ox Bodies to prove that the benefits of the design outweighed its risks. The judge also instructed the jury that it could consider the feasibility of alternative designs in making that decision.

The jury found Ox Bodies liable and awarded Maribel’s family $1.2 million in wrongful death damages. The jury found that Ox Bodies was 20{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at fault for the accident and that the San Juan employees were 80{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at fault. The jury assigned no negligence to Maribel.

Ox Bodies appealed. Among other grounds, Ox Bodies contended that the trial judge should not have allowed Maribel’s expert witness to testify about an alternative design that could have made the underride guard safer.

Daubert Challenge

Before the trial, Ox Bodies filed a Daubert motion to exclude the testimony of Perry Ponder, a mechanical engineer who testified as an expert witness for Maribel’s family. Ponder has professional experience designing, testing, and teaching about underride guards.

According to Ox Bodies, Ponder’s report included no scientific analysis or calculations to support his opinion that an alternative design would have produced a safer underride guard. Ox Bodies also complained that Ponder did not actually construct and test the design that he believed to be safer.

The trial court did not hold a Daubert hearing because Ox Bodies did not ask for one. Instead, Ox Bodies relied on Ponder’s deposition testimony and expert report. The court ruled that Ox Bodies failed to demonstrate that Ponder needed to conduct additional calculations or testing in order to reach an opinion about the comparative safety of an alternative design. The court therefore denied the motion to exclude Ponder’s testimony.

Ponder’s Trial Testimony

At trial, Ponder testified that the underride guard’s design was defective because it left 16 inches on both sides of the truck’s rear end with no protection and because the underride guard was not sufficiently braced against potential impacts. He also opined that the crash protection built into the Jeep was rendered ineffective because the Jeep went under the truck instead of being stopped by the underride guard.

Ponder testified that a guard that covered the entire width of the back end, supported by diagonal bracing and a vertical support, would have been a safer design. On cross-examination, Ponder testified that he did not build or crash test his proposed alternative design. He acknowledged that his design had never been adopted by manufacturers of tilt or dump beds. Ox Bodies renewed their objections to Ponder’s testimony based on those admissions, but the trial court decided that the jury would be allowed to consider Ponder’s expert testimony.

Appellate Decision

On appeal, Ox Bodies argued that Ponder should not have been allowed to testify about the alternative design because he did not test it before offering his opinion that it represented a safer alternative. Ox Bodies contended that his testimony was unreliable because it was not based on adequate data.

The Court of Appeals concluded that Ox Bodies’ argument was based on “a profound misunderstanding of Daubert.” While testing is “one of the most common and useful reliability guideposts,” the First Circuit has never required an expert to build and test an alternative product design before concluding that the design is safer.

Ponder based his conclusion on information from several sources, including crash test data and studies of underride guard deigns. Ponder testified that the information was transferable to underride guards for any kind of vehicle. He also based his conclusions on stress calculations and photogrammetry analysis. Ponder explained why he rejected Ox Bodies’ claim that the calculations performed by its own expert were necessary to determine the superiority of the alternative design.

Following First Circuit precedent, the Court held that juries should ordinarily decide whether to believe expert testimony that is arguably “shaky.” Ox Bodies had ample opportunity to cross-examine Ponder and it presented its own expert testimony. Whether Ponder’s testimony was worthy of belief was for the jury to decide.

Courts that take a less liberal view of Daubert might disagree with the First Circuit’s reasoning. It is important to understand, however, that the gatekeeping role belongs to the trial judge, while an appellate court plays a more limited role when it reviews the trial court’s decision. Since the trial judge applied Daubert to the facts in a reasonable way, the Court of Appeals did not disturb the court’s ruling.

Pistol

Gun Expert Challenged in Kleopa Murder Trial

Prosecutors have challenged a defense firearms safety expert in the trial of George Kleopa, who has been charged with the 2012 shooting of his live-in girlfriend, Michele Peters.

The Shooting

On March 6, 2012, a 30-year-old Michele Peters was found dead after being fatally shot in the face. At the time, Kleopa and Peters had been a couple for 14 years. Peters’ friends and family allege that it was an abusive relationship and that Peters had been planning to leave Kleopa and move away with the couple’s sons.

Witnesses have said that they heard the couple arguing on the night that Peters was shot. Kleopa maintains that the shooting was accidental — he claims that his Springfield Armory XD 40 pistol discharged accidentally, striking Peters in the face.

The Arrest

Four months after Peters’ death, Kleopa was arrested and charged with first-degree murder. Kleopa has remained free on a $200,000 bond since he was charged.

Prosecutor Nicholas D’Angelo offered a plea deal for Kleopa to plead to a lesser charge of involuntary manslaughter in exchange for a 10-year prison sentence. Kleopa indicated he did not want to make such a deal and that deal has since been revoked. If convicted by a jury of first-degree murder, Kleopa faces a sentence of 45 years to life.

The Proposed Expert

As Kleopa prepares to go to trial, his attorneys, David Sotomayor and Theodore Gailin, have proposed a firearm safety expert to testify in Kleopa’s defense.

Prosecutor Nicholas D’Angelo argued that the proposed expert’s testimony would be hearsay based upon a demonstration that Kleopa gave in the expert’s office with the gun two years after the shooting. D’Angelo said, “There has to be some reliability of data to back that opinion,” noting that the pistol required a six-pound pull to produce a discharge. “The defendant has a self-serving interest on how he manipulated the gun.”

D’Angelo argued that, by presenting this expert, Kleopa’s attorneys were attempting to isolate Kleopa from having to take the stand.

Kleopa’s attorney, Gailin, responded that D’Angelo was trying to eliminate testimony that could exonerate his client. Gailin argued, “The issue is whether he deliberately shot the gun…The expert said the discharge could have been fired by accident. It’s up to the prosecution in cross-examination of an opposing party to give a weight to expert’s opinion.”

Cook County Judge Allen Murphy ruled that, “The only person who can testify to that is Mr. Kleopa on how he fired the firearm…The expert can only testify to the functioning of the gun. [The witness] cannot render any other opinion.” Judge Murphy also ruled that the expert could watch Kleopa demonstrate how he handled the gun in court and then comment.

The Reaction

Commenting on the recently set trial date, Peters’ mother, Catherine Peters-Bird, has said she was relieved that her daughter would finally get some small measure of justice. “I’m ecstatic that there is a date to put this man out there where people can see the truth.”

Bloody tear of Themis

Failure to Present Expert Evidence Leads to New Trial

The controversial conviction of Kristen Blaise Lobato for killing a homeless man in Las Vegas may eventually be overturned, thanks to expert evidence that strongly suggests her innocence. The Nevada Supreme Court recently ordered the trial court to decide whether Lobato’s lawyer failed to represent Lobato effectively by neglecting to offer expert evidence that could help prove her innocence.

Accusations Against Lobato

Lobato was convicted of murdering Duran Bailey. The homeless man was brutally maimed and beaten before his carotid artery was slashed. His body was discovered at 10:00 p.m. on July 8, 2001.

No physical evidence linked Lobato to the crime. No evidence suggested that Lobato knew Bailey. Lobato became a suspect only because the police heard an unconfirmed rumor that Lobato had admitted maiming a man in Las Vegas. Lobato’s addiction to methamphetamine may also have influenced prosecutors to view her as guilty.

When the police confronted Lobato, she explained that she had slashed at a man who tried to rape her. That incident occurred two months before Bailey was killed. Having no other suspect, the police decided she was lying and arrested her for killing Bailey.

Critics contend that the prosecution’s case “was built on a shoddy and incomplete police investigation that overlooked evidence strongly suggesting another suspect was responsible.” It was also built on very little forensic evidence.

Lobato’s Alibi

The prosecution conceded that Lobato was in Panaca, near the Utah border, most of the day on July 8. Although Panaca is three hours from Las Vegas, prosecutors insist that Lobato killed Bailey before dawn, or even the night of July 7, and then fled to Panaca.

To win a conviction, prosecutors made sure they did not narrow the window during which Panaca could have been killed. Unfortunately, neither did the defense attorney.

The Clark County medical examiner gave at least three different estimates of the time of Bailey’s death. The first estimate suggested that Bailey could have died at any point during the 24 hours prior to his death. At trial, the medical examiner testified that the victim died between 8 hours and 24 hours, and more likely between 12 and 18 hours, before his body was examined at 3:50 a.m. on July 9.

The medical examiner now concedes that Bailey’s likely time of death excludes the possibility that Lobato could have killed him. The defense presented no expert evidence to challenge the medical examiner’s broader estimates at trial. After Lobato was convicted, that failure became the basis for Lobato’s latest appeal.

Nevada Supreme Court Decision

While rejecting most of the claims that were raised on appeal, the Nevada Supreme Court noted that one had merit. Lobato’s postconviction lawyer argued that her trial lawyer should have retained a forensic pathologist or a forensic entomologist to narrow the time of the victim’s death. Doing so could have cemented Lobato’s alibi.

Lobato’s postconviction attorney presented the affidavits of three forensic entomologists who opined that the victim died after 8:00 p.m. on July 8. An affidavit from a forensic pathologist averred that the victim could not have been dead for more than a few hours when the victim’s body was discovered. Lobato’s uncontested alibi established that she was in Panaca, not Las Vegas, during that time frame.

The trial court did not grant Lobato a post-conviction hearing to establish whether her expert witnesses could have presented reliable evidence in support of her defense. The court discounted the affidavits because they had not been subjected to cross-examination, but as the Nevada Supreme Court noted, they were not subject to cross-examination because the trial court refused to allow a hearing during which the experts could testify and be cross-examined.

The Supreme Court held that the expert testimony, if admitted at trial, would have been sufficient to create a reasonable doubt about Lobato’s guilt. The court therefore remanded the case to the trial court to determine whether the trial attorney had a legitimate strategic reason for failing to investigate, and narrow down, the victim’s time of death. If the trial court agrees that trial counsel was ineffective, it will be required to grant Lobato a new trial.

gun

Struggle to Prove Expert Witness is Qualified in Walter Scott Shooting Trial

The prosecution was met with strong resistance as they tried to prove the qualifications of their forensic scene analysis and recreation expert in the trial of former North Charleston officer Michael Slager for the shooting of Walter Scott.

Expert Testimony

Bill Williams, owner of a forensic consulting business, was called to testify as an expert in the field of forensic scene analysis and recreation. Williams claimed that he was qualified as an expert in his field because of his years of professional experience. Williams told the court that he had spent more than 500 hours compiling a timeline of the events leading up to the shooting of Walter Scott.  Williams examined recordings from the dash camera of Slager’s patrol car, his police radio, and Feidin Santana’s eyewitness video of the shooting. Williams testified that the State Law Enforcement Division’s measurements of the site of the shooting with a laser scanner known as a FARO camera were slightly off and that he did not use them.

Williams presented his proposed testimony to Circuit Court Judge Clifton Newman outside the presence of a jury because Judge Newman had not yet decided whether Williams qualified as an expert witness. Williams provided an approximation of the order of events, as well the proximity of the two men when Slager opened fire. Williams also compiled various pieces of footage with police dispatch recordings into a video that included an animated scene of Scott running from Slager into an empty lot before their struggle.

The Defense

Slager’s defense team challenged Williams’ qualifications as an expert. They pointed to his lack of formal education or training in the field of forensics and video analysis.

Defense attorney Donald McCune questioned Williams about a previous trial in which he had testified as an expert witness, offering testimony as an expert on automobile cruise-control systems in regard to the Ford Explorer.

In 2010, the South Carolina Supreme Court overturned the ruling in a case against the Ford Motor Company. The South Carolina Supreme Court held that the trial court made a mistake by allowing Williams’ testimony, stating, “In our view, there is no evidence to support the trial court’s qualification of Williams as an expert in cruise control systems. Williams had no knowledge, skill, experience, training, or education specifically related to cruise control systems. Rather, it appears he merely studied the Explorer’s system just before trial, which he indicated in his testimony to the jury: ‘This is how I taught myself the [Explorer’s] cruise control, or speed control system.’”

Lead prosecutor Scarlett Wilson continued advocating to have Williams included as her final witness, stating that he “has skills that the common man doesn’t have” and noting the hundreds of crime and accident scenes that Williams has examined. Citing the state Supreme Court’s ruling regarding Williams’ previous testimony in the Ford case, Judge Newman questioned Wilson’s confidence in Williams, but ultimately found him fit to testify as an expert witness.

Update

In late 2016, a five-week trial ended in a mistrial due to a hung jury. A retrial is scheduled for March 1, 2017.