Category Archives: ExpertWitness

Prison, Barbed Wire

Expert Witness Says Former Guard’s Actions Against Inmate Unlawful

An expert for the state has testified that a Bexar County detention officer did not follow proper training techniques when he punched an inmate during a fight inside the jail’s annex in 2014.

The Incident

On July 13, 2014, Avery Lawrence was working as a detention officer at the Bexar County Detention Center Annex. Lawrence got into a verbal confrontation with one of the inmates, John Cory Garcia.

During the confrontation, Garcia shoved Lawrence. Lawrence reportedly responded by punching Garcia in the face.

According to trial testimony, Lawrence pushed Garcia to the floor and struck him in the back with his knee. Garcia suffered a broken rib, punctured lung, and facial injuries.

After the incident, Lawrence was indicted, arrested and released on bond.

The Trial

Lawrence has been charged with three misdemeanors: two counts of official oppression and a charge of violation of civil rights.

At trial, Prosecutor Edward Flores argued that “(Garcia’s) injuries were so serious that if his injuries were not medically attended to, he could have died.” Flores and Chris DeMartino are the two Assistant District Attorneys prosecuting Lawrence’s case.

Extraneous Offenses

Flores and DeMartino filed court papers asking to introduce evidence of 16 extraneous offenses, or conduct for which Lawrence has not been charged. The offenses that prosecutors requested to introduce included allegations that Lawrence lied in incident reports, that he left out important details, and that he did not follow proper prison procedures. According to the documents filed by the prosecution, Lawrence has been involved in at least two cases where inmates were left with serious cuts, one requiring stitches and another that resulted in the inmate having repeated seizures.

Lawrence’s defense team argued that allowing the extraneous offenses to come in was prejudicial to Lawrence.

The documents show that before joining the Bexar County Detention Center Annex, Lawrence supervised juvenile wards. His July 2012 performance review, states that Lawrence “appears a bit aggressive when dealing with residents and…must be mindful of…actions and in control (of) demeanor at all times.”

Expert Testimony

Flores called expert witness Chuck Joiner to testify that Lawrence did not follow proper law enforcement training, “Officer Lawrence is not the first officer to ever be pushed. … And what officers are trained to do when they’re pushed is not to immediately come in and strike someone. It’s not lawful to start punching and beating a person because they pushed you.”

Joiner further testified about what the proper procedure would have been, “What is taught is that officers first give a verbal command, because then you have time and space. … And if that doesn’t work, the next thing is to come in with soft hand techniques.”

Lawrence’s attorney, Marilyn Bradley, argued that this was a case of assault on a public servant, not official oppression, “There was an assault that day, absolutely. … But it was the inmate on the officer. … He’s just been assaulted by an inmate. … He’s got to defend himself.”

Trial Outcome

After six hours of deliberations, a jury found Lawrence guilty of official oppression and of violating the inmate’s civil rights. The jury’s rejection of Lawrence’s self-defense claim was consistent with the testimony provided by the prosecution’s expert witness.

Scales of justice

Louisiana Court of Appeals Orders Hearing on Request for Public Funds to Pay for “Use-of-Force” Expert

The Louisiana 3rd Circuit Court of Appeals has overturned a district court’s rejection of Derrick Stafford’s request for funds for a “use-of-force” expert and ordered the district court to hold a hearing on the matter.

Death of Jeremy Mardis

In November 2015, 6-year-old Jeremy Mardis was shot and killed in an incident involving two Marksville City Marshals, Derrick Stafford and Norris Greenhouse Jr. Jeremy suffered from autism and died after being shot six times during an alleged traffic stop. Jeremy’s father, Chris Few, was also critically injured in the same incident.

Stafford and Greenhouse were arrested on counts of second-degree murder and attempted murder. The town of Marksville, the town and city court, the Parish of Avoyelles, the city court marshal and deputy marshals, along with Stafford and Greenhouse, are also being sued in a federal court by the family of Jeremy Mardis.

District Court’s Rulings

Derrick Stafford’s criminal case is being heard by 12th Judicial District Judge William “Billy” Bennett. Stafford requested public funds for a “use-of-force expert” and an accident scene reconstruction expert.

Under Louisiana law, “If a defendant is indigent and unable to pay for witnesses desired by him in addition to those summoned at the expense of the parish, he shall make a sworn application to the court for the additional witnesses.”

Judge Bennett declared Stafford met criteria to be considered indigent, thus making him eligible for public funds for his defense. Stafford’s attorneys filed a motion requesting for the court to pay for accident scene reconstruction expert Victor Holloman, of Sugarland, Texas.

On October 12, Judge Bennett ordered the Police Jury to pay $4,368 for Holloman. However, Judge Bennett denied the request of defense attorneys Jonathan Goins and Christopher LaCour for funds to hire a use-of-force expert.

The Police Jury voted not to approve the funds to pay for the accident scene reconstruction expert and appealed the court order approving funds for the expert on October 21. In its motion, the Police Jury argued that Stafford is either not indigent or that the parish is not the appropriate party to pay for those costs. The motion states that if Stafford “is indigent, as determined by this court, then any expert witness fees and expenses should be paid by the Louisiana Public Defender Board, through the 12th Judicial District Court Public Defender District, not the Avoyelles Parish Police Jury.”

Third Circuit Ruling

On appeal, the Third Circuit ruled that Stafford “is entitled to a hearing on his motion for funds to hire a use-of-force expert” and “the trial court’s ruling denying the motion for funds to hire a use-of-force expert is vacated and this matter is remanded for a contradictory hearing on the motion.” The Third Circuit has yet to rule on the appeal of the order for the Police Jury to pay for Stafford’s accident scene reconstruction expert.

Public Reaction

Marksville residents have stated that they view Jeremy’s death as an indicator of the ongoing problems with local law enforcement. Describing a number of run-ins with Marksville authorities, Ruby Ivory, a resident of nearby Mansura, has stated, “Y’all just don’t know what the hell we go through around here.”

I voted stickers

Experts Testify in Pennsylvania Recount Litigation

Green Party presidential candidate Jill Stein asked for a recount in the three states with the closest election outcomes. The Wisconsin recount ended with President-elect Trump gaining an additional 131 votes. The Michigan recount was halted by a court ruling that Stein was not entitled to a recount since she had no hope of gaining enough votes to emerge as the victor.

While Stein sought a recount of paper ballots cast in Pennsylvania, most votes in that state are cast on direct-recording electronic (DRE) voting machines. Stein asked for a forensic analysis of the DRE machines to determine whether they had been hacked. A federal judge in Philadelphia denied that request after considering expert testimony from both sides, effectively ending Stein’s challenge to the election results.

Stein’s Claim

In 17 Pennsylvania counties, voters cast paper ballots that are counted by optical scanners. Since paper ballots can be preserved, the ballots can be recounted by hand.

In 54 Pennsylvania counties, voters cast their votes on DRE voting machines. Those machines preserve only a vote tally. There is no way to recount the votes if issues arise as to the accuracy of the tally.

Four Pennsylvania counties use a combination of optical scanners and DRE machines. Most Pennsylvania voters must therefore depend on the DRE machines if they want their votes to be counted.

Stein’s request was based on the concern that DRE machines are capable of being manipulated by hackers. Stein’s lawyer alleged that “DRE machines are easier to hack than an iPhone.” Even if DRE machines are easily hacked, whether the voting machines were actually hacked is a different question.

Stein’s suspicions were based in part on the CIA’s finding that “Russia intervened in the 2016 election to help Donald Trump win the presidency.” The CIA’s conclusion was based on Russia’s hacking of emails maintained by political organizations. Still, evidence that emails were hacked does not establish that voting machines were hacked.

Court’s Analysis

Following the reasoning of the state courts in Michigan, the federal court in Pennsylvania decided that Stein lacked “standing” to bring her lawsuit. Even if a recount were held, the court concluded, Stein would have no hope of winning the election. She therefore suffered no personal harm if the vote count was flawed. An allegation of personal harm is usually required before a party is entitled to bring a lawsuit.

Before bringing her federal lawsuit, Stein brought the same claim in Pennsylvania state courts. Those courts rejected her request. The federal judge decided it would be inappropriate to second-guess the state courts about election procedures that are determined by state law. In that regard, the judge’s reasoning departed from the Supreme Court’s Bush v. Gore decision, which declined to allow state courts to determine Florida’s election results in 2000.

Because the issues raised in the case are important, however, the judge analyzed the evidence to determine whether Stein’s claims had merit. The judge agreed that tampering with votes would impair the constitutional right to vote. To decide whether Stein had persuasive evidence of vote tampering, the judge considered the testimony of the expert witnesses.

Pennsylvania’s Expert

Dr. Michael Shamos has a Ph.D. in computer science as well as a law degree. He was “deeply involved in the creation and monitoring of Pennsylvania’s voting security procedures.” The judge agreed that Dr. Shamos is an expert in electronic voting, Pennsylvania’s election procedures, and computer science.

Based on Dr. Shamos’ testimony, the court concluded that votes in Pennsylvania are not tabulated on a single computer that is connected to the internet and thus susceptible to tampering. The judge also rejected the fear that “malware” might have been secretly installed on DRE voting machines or on vote tabulation machines, thus corrupting the results, based on Dr. Shamos’ opinion that the number of machines involved, and the security measures in place, would prevent any such hacking from occurring.

Dr. Shamos pointed out that the Russian hackers who tried to influence the election attacked email servers, while voting machines operate on different principles. He acknowledged the theoretical possibility that a DRE machine might be hacked despite the security measures in place to prevent that from happening, but dismissed the possibility of widespread hacking as bordering on the irrational.

Stein’s Expert

The court agreed that Stein’s expert, Dr. J. Alex Halderman, was qualified to testify about computer science, but determined that he “knew virtually nothing” about Pennsylvania’s security procedures or the practices of the state’s election officials. It is always a bad sign for a party when the court refers to the party’s “expert” in quotation marks.

Halderman admitted that he had no evidence of computer hacking and conceded that even if hacking occurred, it probably did not affect the election outcome. He relied in part on media reports of hacking in Illinois and Arizona, but the court discounted those concerns because they related to voter registration systems, not to hacks of off-line voting machines on election day.

Stein submitted the reports of four other experts, each of whom opined that DRE machines are vulnerable to hacking. The court discounted those opinions because they related to theoretical possibilities. In the absence of evidence that the machines were actually hacked, the court declined to delay certification of the election results while a forensic examination determined whether hacking occurred.

In the end, Stein raised important questions about the wisdom of voting on machines that do not permit a recount if the machines record inaccurate results, whether accidentally or due to outside interference. Since that question involves a policy judgment that is made by state legislatures, not by courts, and since Stein had no evidence that hacking occurred, the court gave more weight to Pennsylvania’s arguments (and the testimony of its expert) than to the concerns raised by Stein’s experts.

Immigration Law

Judge Orders New Trial For Ramsea Odeh to Allow Her to Present Expert Witness

US District Judge Gerswhin Drain allowed clinical psychologist and torture expert Dr. Mary Fabri to testify as an expert witness in the trial of Ramsea Odeh.

Odeh’s Indictment

In October 2013, federal prosecutors indicted 69-year-old Palestinean leader Ramsea Odeh, associate director of the Chicago nonprofit the Arab American Action Network, for unlawful procurement of naturalization, nine years after she became a US citizen and just one year short of the statute of limitations.

Odeh’s indictment followed a series of FBI raids on the homes of community and political activists in Chicago and other cities that led to the subpoena of Arab American Action Network records. Six years after these raids and subpoenas, no indictments have ever been filed against any of the original targets.

Although Odeh was not one of the original subjects of the investigation, her 45-year-old record from Israel was discovered in thousands of documents the US government obtained from Israeli authorities.

In 1969, Odeh was convicted by an Israeli military court of helping to coordinate a series of bombings in Jerusalem that killed two young men. She served 10 years in an Israeli prison before being released in a prisoner exchange. Her attorneys have maintained that she was convicted based on a confession that followed prolonged torture.

When Odeh filled out her 2004 application for US citizenship, she responded “No” to a series of questions asking if she had “ever” been arrested, charged, convicted or imprisoned.

Odeh’s First Trial

In November 2014, Odeh was tried in a week-long trial in federal district court in Detroit, Michigan. In March 2015, Odeh was found guilty of immigration fraud. Odeh was sentenced to 18 months in prison. She was subsequently to be stripped of her citizenship and deported.

During her trial, Odeh’s defense team attempted to present Dr. Mary Fabri as an expert witness. Dr. Mary Fabri is a torture expert and psychologist. Fabri examined Odeh over the course of several months in 2014 and concluded that Odeh suffers from PTSD as a result of torture, including rape, by Israeli interrogators nearly 50 years ago.

Based on her examination, Fabri believes Odeh could have filtered out the traumatic memories when she filled out her immigration and naturalization applications.

Odeh’s legal team argued that, as a result of her PTSD, Odeh understood the questions to be asking whether she had any criminal record in the United States.

The Appeal

Odeh filed an appeal, arguing that the district court has erred by not allowing Odeh or her expert to testify about her post-traumatic stress disorder (PTSD).

The prosecution argued against allowing a new trial, arguing that Fabri’s testimony was irrelevant and that Fabri was not a qualified expert.

In February 2016, the Sixth Circuit Court of Appeals ruled that the district court had erred by barring Fabri or Odeh from testifying during the trial about Odeh’s post-traumatic stress disorder as part of her defense. The appellate court held that the expert testimony was “potentially admissible because it is relevant to whether Odeh knew that her statements were false, which is an element of a prosecution.”

Drain’s Decision

The appellate court sent the case back to Judge Drain to decide whether Fabri’s expert testimony would satisfy federal standards of admissibility. Contending that PTSD cannot cause people to filter their memories, prosecutors continued to object to Fabri’s testimony. Recognizing that Fabri’s opinions concerning the relationship between PTSD and memory are widely accepted by neuroscientists and mental health professionals, the judge deemed the government’s objection to be “puzzling.” The judge also rejected prosecution claims that Fabri is not qualified to give expert testimony.

Odeh’s new trial is scheduled to begin in January 2017.

Car Crash

Expert Challenged in Will Smith Murder Trial

The defense team of the man charged with the murder of New Orleans Saints football star Will Smith challenged Michael Sunseri, a crash reconstruction expert called by the prosecution, to discuss “black box” data. Criminal District Judge Camille Buras allowed him to testify as an expert witness.

The Incident

On April 9, 2015, New Orleans Saints football player Will Smith was shot and killed. Cardell Hayes, 29, who fatally shot Smith, said that he shot Smith in self-defense — and only after a drunken, irate Smith retrieved a gun from his car following a car crash. Hayes claimed that, “I knew for a fact that I was going to get shot” and that he heard a sound that sounded like a gunshot before he fired.

The Trial

At trial, Hayes’ defense team accused former NOPD Capt. Billy Ceravolo of removing Will Smith’s gun from his SUV while he was investigating Smith’s slaying.

Captain Ceravolo testified under oath that he did no such thing when prosecutor Jason Napoli asked him “point blank” if he tampered with any evidence. Ceravolo testified that he’s been accused of many things, “I’ve taken guns, moved guns, kicked guns into the drain…I’ve been accused of everything.”

Prosecutors showed a jury surveillance video that recorded Ceravolo at the Windsor Court waiting for Smith, his wife, former Saints player Pierre Thomas and other friends to arrive for a night at the hotel bar. The video reportedly showed Ceravolo leaving the hotel to head to the scene after Thomas called to tell him Smith had been shot and killed.

Defense attorney John Fuller questioned Ceravolo, asking him if he was a “fixer” sent to clean up the scene to protect Smith’s reputation. Fuller claims that there was a witness at the scene who saw Ceravolo tamper with the scene.

Assistant District Attorney Jason Napoli said that the FBI contacted Fuller to look for the “mystery witness” who claimed Ceravolo took Smith’s gun. Napoli noted that the mystery witness has never been made available, and the defense was never able to prove any tampering.

Ceravolo’s attorney, Tanya Picou Faia, described the accusations as a sideshow by Fuller and stressed that her client did not tamper with any evidence. “It’s a very serious crime that he was accused of… What rubbed salt in the wounds is that this was the murder scene of one of his best friends.”

The Expert

The prosecution called Michael Sunseri as an expert witness. Sunseri is a crash reconstruction expert called to discuss “black box” data from the Mercedes and Hummer. The defense team challenged Sunseri, but Criminal District Judge Camille Buras  allowed him to testify as an expert witness.

According to his website, Sunseri has investigated and reported over 800 motor vehicle accidents for the Louisiana State Police (1973-1987); supervised the investigation, including the reconstruction, of approximately 500 serious injury or fatal motor vehicle accidents (1979-1994); and consulted privately in over one thousand accident cases since 1982 in the area of accident reconstruction.

Row houses in Philadelphia, PA

Experts Affix Blame in Philadelphia Building Collapse

Six people were killed and thirteen injured after the unbraced wall of a four-story building that was being demolished in Philadelphia collapsed, burying a neighboring single-story Salvation Army thrift store in rubble. One of the survivors was trapped for more than half a day before rescuers could reach her. Both of her legs were amputated at the hip.

Injury victims and relatives of the deceased sued a number of defendants who were allegedly responsible for the tragic event. A lengthy trial is well underway. Several expert witnesses have already testified for the plaintiffs and for the primary defendant.

Defendants in the Lawsuit

Defendants in the consolidated lawsuits include the demolition contractor, the excavator, and the architect who was hired to oversee the demolition. The primary defendant is real estate speculator Richard Basciano, whose company, STB Investments Corp., owned the building that was being razed. The plaintiffs also sued the Salvation Army for failing to protect employees and customers from a known danger.

Sean Benschop, the excavator, and Griffin Campbell, the contractor, were both convicted of involuntary manslaughter. Although they are defendants in the lawsuit, they probably have no way to pay any judgment that is entered against them. Another defendant, architect Plato Marinakos Jr., apparently had no insurance coverage that would pay any judgment that the jury might enter against him.

Claims and Defenses

The primary claim against Basciano is that he was negligent in hiring Marinakos and in failing to realize that Campbell was not qualified to handle the demolition. The plaintiffs have offered evidence that a key employee of Basiano knew that the demolition might endanger lives and property but allowed the project to continue.

The plaintiffs claim that Basciano’s aide warned the Salvation Army that its store might be placed at risk by the demolition. They allege that the Salvation Army ignored the warning because they thought it was a ploy by Basciano to induce the Salvation Army to swap its property for another Basciano property.

The Salvation Army rejected the proposed swap because it did not like the location of the property that Basciano offered. Bad blood became evident when Basciano’s property manager referred to the Salvation Army as “that half-baked charity.”

Basciano is basing his defense on expert testimony that the fault rests with the contractor who was responsible for the demolition and with the architect who was hired to oversee it.

Plaintiffs’ Forensic Construction Expert

The injury victims allege that Basciano and his property manager were negligent because neither Marinakos nor Campbell had prior experience bringing down a multistory commercial building. In support of that claim, the plaintiffs presented the expert testimony of Stephen A. Estrin, a former contractor who now analyzes building failures as a forensic construction consultant.

Estrin testified that Campbell was “totally incompetent and inexperienced.” Estrin also testified that Basciano and his property manager failed to adhere to industry standards when they did “no due-diligence research” before hiring Campbell. Estrin said that Basciano, relying solely on Marinakos’ recommendation, hired Campbell “despite the fact that Campbell had no city contractor’s license and had demolished just two burned-out rowhouses.”

Marinakos knew that Campbell was unlicensed. He also knew that Campbell had no insurance coverage for demolition, had no business account, and cashed his $25,000 deposit at a check cashing agency. Estrin told the jury that Basciano should have learned all of those facts and, had he done so, would have realized that Campbell lacked the credentials for a multistory demolition project. According to Estrin, Basciano cannot absolve himself of responsibility by blaming Marinakos for hiring an inept contractor.

Estrin testified for the plaintiffs before being cross-examined by lawyers for each of the defendants. He was on the witness stand for three full days.

Plaintiffs’ Retail Expert

The plaintiffs also presented the expert testimony of Alex J. Balian, the owner of a consulting firm specializing in retail management and store safety. He testified that the Salvation Army contributed to the casualties by failing to protect their customers from harm.

Balian faulted the Salvation Army for failing to investigate Basciano’s warnings of danger. He also noted that the store manager was aware of falling debris before the collapse and knew that no scaffolding had been installed to protect the store. Balian testified that the Salvation Army should have closed the store to protect its customers once the danger became apparent.

Store employees testified that they were never informed of the danger warnings that the Salvation Army received from Basciano’s employee. They also testified that the Salvation Army has a strict chain of command and that they were not authorized to close the store on their own initiative.

Defense Challenges

Lawyers for the defendants vigorously challenged the opinions of Balian and Estrin, claiming that they were rendering personal opinions as opposed to testifying about industry standards. In both cases, the judge ruled that the opinions were admissible as expert testimony.

Basciano’s Experts

Geoffrey N. Irvine testified for the defense as an expert in property management. He opined that Basciano and his property manager followed customary practices in the real estate industry by hiring Marinakos to monitor the project and to recommend the contractor to demolish the building.

Another expert testifying for Basciano, Philadelphia architect Robert H. Henderson, told the jury that Marinakos’ work on the project was “deceitful and leaning toward fraud.” Henderson’s testimony supported Basciano’s attempt to shift the blame for the building’s collapse to Marinakos. Henderson also suggested that Marinakos “rigged” the bids so that Campbell would get the demolition contract.

Basciano’s attempt to portray himself as the victim of inept or corrupt hired help might be undermined by evidence that his top aide sent several emails to the Salvation Army warning them that their building was in danger. The aide has testified that he was unaware of any actual danger but sent those emails as part of a strategy to induce the Salvation Army to swap its building for a different property.

The trial, one of the longest in Philadelphia history, has already taken weeks. The case will probably not reach the jury before January.

West Virginia Sheriff Convicted for Excessive Force despite Expert Testimony

West Virginia Sheriff Convicted for Excessive Force despite Expert Testimony

A West Virginia Sheriff was recently found guilty of excessive use of force to deprive a suspect of rights after a trial that featured a use of force expert witness called by the defendant’s legal team. Although the defense was unsuccessful, the use of a police expert is a necessary element to trials involving police abuses as jurors may be unfamiliar with the standards of practice and limits of police authority.

West Virginia Sheriff Convicted of Excessive Force

Mark Cowden of the Hancock County Sheriff Department was convicted last month of excessive force and “Deprivation of Rights” by a federal jury in West Virginia. Prosecutors accused Cowden of abusing an arrestee after video surveillance captured the sheriff forcing Ryan Hambrick into a brick wall before punching the suspect in the back of the head with a closed-fist. According to prosecutors, Cowden’s actions were excessive and in violation of the law.

Defense attorneys responded to the allegations of unlawful use of force by arguing that Cowden was being targeted by political enemies and did not take unlawful action against the suspect. Cowden, who was up for political office this year, claimed that the use of force prosecution was designed to disrupt his campaign and had no basis in fact. According to his defense team, he used appropriate force against a suspect who had a violent history and who was resisting authority at the time of the incident. In an effort to bolster the defense, Cowden’s attorneys called a use of force expert to testify that he acted in accordance with police standards.

Use of Force Expert Testifies in Sheriff’s Criminal Trial

Timothy A. Dimoff, a national security law enforcement consultant and police expert witness, took the stand in Mark Cowden’s trial to explain to jurors that the sheriff used appropriate force against a drunk driving suspect who was not cooperating with authority. After watching the prosecution’s surveillance footage, Dimoff told jurors, “I don’t see repetitive abuse of force. I don’t see (Cowden) losing his cool. I see control techniques. I see a prisoner who is not cooperating.” Dimoff also told jurors that Hambrick displayed signs of aggression towards Cowden, including use of his head to engage in fighting techniques while the sheriff was attempting to book him.

Cowden’s defense team also called to the stand a medical expert in blunt-force trauma to testify that the incident between the sheriff and Hambrick did not cause serious injury. Dr. Jack E. Riggs, a neurologist from West Virginia University who has experience in combat hospitals, explained to jurors that the defendant could not have caused Hambrick’s injuries based on the nature of the wounds. According to Riggs, the angle at which Cowden hit Hambrick did not align with physical signs of injury, and the nosebleed the suspect suffered was likely an aggravated injury suffered during arrest. Hambrick had been involved in a physical altercation with an officer during the arrest which had caused the injuries he suffered.

Taken together, the two expert witnesses called by Cowden’s defense team were used to justify the sheriff’s action by explaining to jurors it was not outside department standards for uncooperative arrestees, and it did not cause severe injury.

West Virginia Sheriff Convicted in Use of Force Trial

Despite testimony from defense experts on police use of force and blunt force trauma, Lt. Sheriff Mark Cowden was convicted for using excessive force to detain Ryan Hambrick. Cowden has not yet been sentenced, but faces a possible 10-year prison term for his actions. Cowden’s name is still on the Hancock County election ballot. Although his federal conviction makes him ineligible for the role of Sheriff, he has maintained his innocence and is asking residents to vote for him anyway.

Mark Cowden’s case serves as another example of how police training and use of force experts are used in criminal trials of police officers who take violent action against arrestees or suspects. Although Cowden was convicted anyway, his defense team’s use of expert witnesses provided the best possible argument that he was acting in accordance with department procedures. Whether or not that influences sentencing remains to be seen.

Bill Cosby

Bill Cosby Uses Memory Expert to Challenge Accusers

Defending against charges that he sexually assaulted Andrea Constand in 2004, Bill Cosby’s lawyers have asked the trial judge to decide whether thirteen other accusers who might testify against him are competent to give testimony. Cosby’s lawyer is relying upon an expert witness to suggest that the memories of the witnesses are unreliable.

Charges Against Cosby

Constand reported the alleged assault in 2005, about a year after she claimed that Cosby fondled her without her consent. The district attorney at that time decided that there was insufficient credible evidence to justify filing charges.

Eleven years later, a new district attorney decided to prosecute the case. Cosby’s lawyer contends that the charges are politically motivated in light of the prosecutor’s campaign pledge to prosecute Cosby if elected. The charges came after other women made well-publicized accusations against Cosby of inappropriate sexual conduct.

Cosby’s own admissions might be the strongest evidence against him. After Constand sued him, Cosby admitted in a deposition that he touched Constand in a sexual way after giving her Benadryl when she complained about stress. Cosby also admitted that on other occasions he gave Quaaludes to women before he had sex with them. Cosby maintains that all of the sexual encounters were consensual.

Proposed Prior Acts Testimony

The rules of evidence in most states prohibit a prosecutor from introducing evidence that a defendant committed crimes in the past to prove that the defendant is probably guilty of the charged crime. The rule against “bad acts” evidence is meant to shield a defendant from prejudicial attacks on his or her character that might persuade a jury that the defendant deserves punishment for being a bad person, even if it isn’t clear that the defendant committed the charged offense.

The prohibition against “bad acts” evidence is, however, riddled with exceptions. The prosecutors in Cosby’s case want to call thirteen women as witnesses to testify that Cosby drugged them and then sexually assaulted them. The prosecutors are relying on an exception that allows prior acts to be used to prove that a defendant committed a crime in such a specific way that it constitutes the defendant’s “signature.” That exception usually applies when the identification of the person who committed the alleged crime is doubtful, which isn’t the case here, but the prosecutors nevertheless want to bolster their proof that Cosby assaulted Constand by proving that he previously assaulted thirteen other women in the same way.

Proposed Expert Testimony

Cosby’s attorneys filed an unusual motion asking the court to determine the competency of the thirteen women to testify about acts that Cosby allegedly committed between 1967 and 1996. The defense notes that none of those allegations were reported to the police and most were never mentioned to anyone until the recent media flurry concerning the alleged assault of Constand.

The motion alleges that most of the women did not consider themselves to have been victims of an assault until recently. Many of them have no recollection of any sexual contact occurring. The defense contends that the court should determine that the women are not competent to testify because their memories are unreliable.

The motion is unusual in that witnesses are normally presumed to be competent to testify unless they are very young children or suffer from a mental infirmity. As long as a mentally healthy adult witness has the capacity to observe events, recall those observations, and describe them in court, whether the witness is giving accurate testimony is usually for the jury to decide.

According to the motion, Dr. Elizabeth Loftus, a psychologist who is a leading expert in the field of memory, has reviewed the evidence and concluded that the memories of the thirteen witnesses have been “tainted in the decades since their alleged assaults occurred.” She bases that opinion on:

  • The length of time that has passed since the alleged assaults, which increases the probability that their memories are inaccurate.
  • The likelihood that extensive media coverage has tainted or supplanted the memories of the women who are now accusing Cosby.
  • The likelihood that the close interaction of the women has tainted their memories, as each fed upon and adopted stories told by the others.
  • Evidence of suggestive questioning by police and the media that tainted the memories of the witnesses.
  • Changes in the stories the women have told, which suggests that their memories have changed over time and are therefore unreliable.

A legal memorandum accompanying the motion suggests that the accusers have been encouraged to recall assaults that never happened by a “media frenzy.” Ten of the women are represented by the same lawyer, who in many cases facilitated media attention to publicize their accusations.

Cross-Examination or Exclusion?

In most cases, the reliability of a memory is challenged at trial by cross-examining the witness. Attacks on the reliability of a memory can also be bolstered by calling an expert witness to testify at trial.

It would be unusual for a judge to exclude eyewitness testimony on the ground that an adult, mentally healthy witness is not competent to testify, but this is an unusual case. The fact that the alleged assaults occurred decades ago and only surfaced after extensive media coverage of Constand’s allegations might push this case into uncharted territory.

It could also be true that Cosby’s lawyers expect the motion to be denied, but are hoping for a pretrial hearing that will provide an early opportunity to cross-examine the witnesses. That would give them a chance to preview their testimony and to impeach them at trial if they deviated from their pretrial testimony.

At this point, the judge has not decided whether any or all of the thirteen witnesses will be excluded from testifying under the “bad acts” rule. If the judge decides their testimony is not relevant, the competency motion will become moot. If some or all of the witnesses are permitted to testify at trial, it seems clear that Cosby’s lawyers will rely on expert testimony to challenge the accuracy of their testimony.

Photo Credit: By The World Affairs Council of Philadelphia [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Painfull knee, person in pain

Expert Testimony Excluded in Second NexGen Trial

Despite its financial success, the NexGen knee implant has a troubled history. Several versions of the device, including “high flex” implants that are intended to increase the knee’s range of motion, have prompted litigation due to a high failure rate.

The NexGen High-Flex Knee Replacement is a particularly controversial device that some experts, including surgeons who implant it, regard as problematic. When the implant fails before it reaches the end of its expected life, patients must undergo replacement surgery, sometimes many years before they expected to go under the knife again. Patients complain that components of the device loosen prematurely, making knee movement both painful and difficult.

Thousands of patients who blame NexGen failures on a defective design have sued Zimmer Biomet, the device’s manufacturer. Zimmer Biomet denies that the implants are defective. Many of the lawsuits have been consolidated before a federal judge in Illinois. The first case ended in a jury verdict for Zimmer after the judge excluded some of the plaintiff’s expert testimony. The second case was recently dismissed after the judge concluded that critical expert testimony was inadmissible under the federal Daubert standard.

First Bellwether Trial

About 900 NexGen lawsuits have been consolidated before Judge Rebecca Pallmeyer in Illinois. Multidistrict litigation rules that govern the consolidated cases anticipate the early trial of a few representative lawsuits. Those “bellwether cases” are intended to expose the strengths and weaknesses of the evidence on both sides and to encourage settlement of the remaining claims.

In the first bellwether case, Zimmer argued that the testimony of two experts should not be admitted. The judge decided that Dr. Thomas Brown’s testimony regarding loosening of the device’s tibial component was relevant and reliable. The judge determined that Dr. Joseph Fetto was qualified to testify about biomechanics, but excluded his testimony regarding the risk that the devices’ tibial and femoral components would loosen, the adequacy of Zimmer’s warnings to patients, and the adequacy of Zimmer’s product testing. The court concluded that those aspects of his proposed testimony were not based on a reliable methodology.

The first bellwether case went to trial last year. After three weeks of testimony, the jury found in favor of Zimmer.

Second Bellwether Trial

Theodore Joas contended that the tibial component of his NexGen Flex implant loosened, creating the need for new surgery, because of the product’s defective design. Joas relied on the expert opinions of Dr. Brown as well as those of a statistician to establish that the implant’s design made it prone to loosening.

Joas relied on Dr. Fetto’s expert opinions to prove that the defect caused Joas’ implant to loosen. In an attempt to remedy the problems that caused parts of his testimony to be excluded from the first trial, Dr. Fetto revised his methodology and submitted a new report.

Zimmer again challenged Dr. Fetto’s proposed testimony. Zimmer also moved for summary judgment, contending that without Dr. Fetto’s proposed testimony, the plaintiff could not prove that the knee implant was defectively designed.

Dr. Fetto’s Expert Opinions

In the first trial, the court concluded that Dr. Fetto’s report did not explain how the studies he cited supported his conclusion that the implant’s design contributes to its loosening when patients flex their knees. The court also faulted Dr. Fetto for failing to explain why the product’s design, rather than other factors, caused the implant to loosen.

In preparation for the second trial, Dr. Fetto changed his methodology. He relied on “differential etiology,” a process of elimination that doctors use to identify the cause of an ailment. That method assumes that by identifying every potential cause and ruling out all but one, the one that remains must be the cause of the problem.

Dr. Fetto made a list of potential causes for the loosened implant, including such things as trauma, infection, surgical error, and qualities attributable to Joas’ bones, weight, and activities. He found no evidence to suggest that the loosening was caused by Joas’ surgery, by unusual activities that would have stressed the implant, or by medical problems such as infection or bone disease. Having ruled out all other problems, he determined that mechanical failure was the sole remaining cause.

Daubert Ruling

In response to Zimmer’s Daubert motion, the court ruled that “differential etiology” is a reliable methodology, but that Dr. Fetto’s application of the methodology was not reliable. The court first observed that Dr. Fetto failed to cite adequate evidence to support his opinion that certain kinds of stress cause the NexGen device to pull away from the tibia.

The court then concluded that Dr. Fetto misapplied the “differential etiology” methodology because he “failed to follow identifiable standards for including or omitting potential causes for Joas’s knee failure.” In particular, Dr. Fetto’s report did not explain why he failed to “rule in” the possibility of osteolysis (loosening that results from cement debris and polyethylene wear) or defective cement. The court noted that Dr. Fetto may have considered those potential causes, but the language in his report was insufficiently specific to explain why they could not have caused the implant to loosen.

Oddly, after criticizing Dr. Fetto for failing to “rule in” two remotely possible reasons why the device might have loosened, the court criticized him for ruling in the possibility that the device was defective. The fact that hundreds of patients have experienced premature failure of NexGen knees, as well as statistical evidence and physician complaints about its premature failure, would seem to provide ample reason to rule in a product defect as a suspected cause of the device’s loosening in Joas’ case.

Finally, the judge complained that Dr. Fetto ruled out certain potential causes of loosening for reasons that the judge believed to be “inconsistent.” That sounds very much like an evaluation of the expert’s credibility, which is never an appropriate consideration for a judge who applies the Daubert standard.

In the end, the judge excluded Dr. Fetto’s expert opinion. And since Joas’ proof of causation rested on that testimony, the court granted summary judgment in favor of Zimmer.

The Problem with Daubert

Some observers will cheer the judge’s ruling and others will condemn it. There is no question that the judge carefully parsed Dr. Fetto’s expert opinions, but the question is whether the judge exceeded the court’s proper role by doing so.

Many court decisions suggest that the potential weaknesses in an expert’s analysis should be explored on cross-examination and evaluated by a jury. If Dr. Fetto did not provide a complete explanation for his failure to rule in (and then rule out) remote possibilities for the implant’s loosening, his report makes clear that he did consider them. Courts with a more liberal view of Daubert might rule that Dr. Fetto’s considered decisions about how to apply the differential etiology methodology should not be second-guessed by a judge, since doing so arguably usurped the jury’s role.

The problem with Daubert is that the standard draws no clear line between the evaluation of an expert’s methodology (which is the judge’s limited function as a gatekeeper) and the evaluation of an expert’s conclusions (which is the jury’s responsibility). Cases are widely divided as to when an expert’s application of a methodology should be evaluated by a judge and when it should be evaluated by a jury.

There is little reason to believe that juries are less able than judges to evaluate scientific evidence. A jury might have accepted Dr. Fetto’s conclusions as providing the most reasonable explanation of the implant’s loosening, even after the potential weaknesses of his analysis were exposed on cross-examination. As legal scholars have warned, when a judge excludes evidence that a jury might find persuasive, “a judge may risk denying a jury the opportunity to consider important parts of a causation puzzle.”

Concept about driving under influence of medicines and alcohol

Michigan Woman’s Sleep Driving Defense Fails

Kathleen Bailey of Rockford, Michigan, was found guilty of driving while intoxicated, despite her defense team’s use of experts who testified that she was “sleep driving.”

The Incident

On November 24, 2015, Kathleen Bailey of Rockford, Michigan, got in her car with her dog and drove from her home to a nearby Walgreen’s pharmacy drive-thru. Multiple witnesses reported seeing Bailey driving erratically. Some witnesses reported seeing Bailey blow through a stop sign at the corner of Northland and Wolverine at noon at a high speed. Additionally, multiple witnesses called 911 to describe the situation. One witness, David Burns, told a dispatcher, “She just missed four people and she’s driving all over the road here… She is not to be driving because she is going to kill somebody.”

Kent County deputies report that when they arrived on the scene to confront Bailey, she appeared to be under the influence of something. Tests showed that Bailey did not have alcohol in her system; however, the reporting deputies says that they believe that Bailey was under the influence of some substance.

The dash camera footage shows that the deputies performed numerous sobriety tests on Bailey and that she failed most of them. She was unable to recite the alphabet from “E to P.”

Bailey was placed under arrest and charged with operating while intoxicated. Kent County prosecutors decided to pursue a case against Bailey.

Bailey’s Defense

Bailey maintained her innocence. She claimed that she was “sleep-driving.” Bailey explained that she had been ill with the stomach flu for days and took the prescription sleep aid Ambien to try to fall asleep on the morning of the incident. Bailey maintained that she was following her doctor’s orders in taking the correct amount of Ambien and that she did not do anything illegal. “I didn’t do anything illegal… I had been so sick and I hadn’t had a shower in two days…. I then took an Ambien to get some sleep and the next thing I know I am being fingerprinted.”

Bailey says that she does not remember driving at all: “I literally do not know what happened.” She blames Ambien for the incident and says that she did nothing wrong. “The drug is very dangerous… Why would I have to fight for my freedom if I took a medication prescribed by my doctor… This is a medical thing, this is not a criminal thing.”

The Trial

At trial, an expert from Michigan State Police lab in Lansing testified that Bailey had an additional muscle relaxer and antidepressant in her system in addition to the Ambien.

Dr. Daniel Mayman testifed for the defense that he believed Baily was sleep-driving even though her eyes were open and she spoke to the deputies. Mayman said, “The problem is the higher functions of the brain where our judgment comes from are not working well, they’re only working a little bit.”

The jury unanimously found Bailey guilty. She will be sentenced on November 21, where she faces the possibility of a driving suspension, a fine, and jail time.