Category Archives: ExpertWitness

Jury Awards $7.3 Million After Experts Battle Over Whether Penn State’s Actions Toward McQueary Damaged His Career

A jury has awarded former Penn State University assistant football coach Michael McQueary over $7 million in damages in his suit against the university for firing him after he implicated Jerry Sandusky as a sexual predator. This award comes after the expert witnesses for each of the parties arrived at drastically different estimates of the financial impact that Penn State’s actions after the Sandusky scandal had on McQueary’s career prospects.

Sandusky Scandal

McQueary was an assistant football coach for Penn State University. He claims that he saw former coach Jerry Sandusky raping a young boy in the shower in 2001. McQueary said that he quickly reported it, but no action was taken. McQueary also implicated the university athletic director Timothy Curley and a Penn State vice president, Gary Schultz, in the cover-up.

In 2012, Sandusky was convicted of molesting 10 boys and sentenced to 30 to 60 years in prison.

Also in 2012, McQueary lost his $140,000-a-year coaching job for his role as a whistleblower in the scandal. After his dismissal, McCreary was unable to obtain other employment, which he attributed to other schools viewing him as “damaged goods.”

McQueary’s Lawsuit

McQueary filed a defamation lawsuit against Penn State, arguing that the school fired him in retaliation for being a whistleblower in the Sandusky scandal. Initially, McQueary sought $4 million in damages along with a rider to cover the potential income he could have made over 25 more years working as an assistant football coach.

McQueary claimed that Penn State did not inform him that he was no longer a university employee, did not offer to cover his legal fees, and delayed his severance payments and insurance benefits. McQueary also claimed that the school defamed him when it issued a public statement supporting the two university administrators who were charged with perjury and failure to report abuse.

Penn State argued that it had treated McQueary fairly and pointed to its agreement to pay him an 18-month severance benefit upon the expiration of his last contract.

At trial, economics expert Samuel Kursh testified for the defendants that the Jerry Sandusky scandal cost McQueary a maximum of $590,000 in future earnings. Kursh also testified that it was possible that McQueary suffered no loss at all.

Kursh’s estimate was in sharp contrast to McQueary’s expert, forensic accountant James Stavros, who testified that McQueary’s potential for future earning had been diminished by $1.8 million to $7.4 million. Stavros’ estimates were based upon the assumption that McQueary would have been able to continue his career as a high-level college position coach for the next 20 years.

At the conclusion of the trial, the jury ruled on the defamation and misrepresentation claims and awarded McQueary $7.3 million in compensatory and punitive damages. Judge Thomas Gavin reserved his ruling the whistleblower claim.

Attorneys for all parties have declined to comment on the case, citing the gag order that Judge Gavin has placed on the case.

Update: Judge Gavin ruled in McQueary’s favor on his whistleblower claim and awarded him an additional “$3.97 million in past and future economic losses and $1 million in non-economic losses for harm to his reputation and humiliation. Penn State also was ordered to pay legal fees and the bonus he would have received for coaching in the 2012 Ticket City Bowl.”

Photo Credit: Pennsylvania State University

Sanctions Reversed Against Florida Expert Who Made Mistake in Affidavit

A Florida jury found James Clark guilty of causing the death of an 85-year-old woman while driving after drinking. Frank Fore, an accident reconstruction expert, was hired to help Clark’s lawyer overturn the manslaughter DUI conviction.

In support of the lawyer’s challenge to the conviction, Fore prepared an affidavit expressing the expert opinion that Clark was driving at 55 mph at the time of the accident. He based his opinion on his understanding of data that was taken from the accident victim’s vehicle. Prosecutors had contended that the car was traveling at 85 mph.

Fore’s Mistake

Fore thought he was relying on pre-impact data from the victim’s air bag control module. However, the victim’s car was not able to provide that data.

Fore explained that he relied on a flawed tool that appeared to download the data from the victim’s car. He mistakenly believed the data reported by the tool was accurate.

Fore realized that he misunderstood the data when he was provided with a report prepared by the prosecution’s expert. Fore notified Clark’s attorney of the error but he was not asked to, and therefore did not, revise his affidavit. Clark’s attorney failed to notify the prosecutor of the error in Fore’s affidavit.

The prosecutor took Fore’s deposition. During questioning, Fore acknowledged that his affidavit contained erroneous information. The prosecutor then asked the court to impose sanctions on Fore. At a hearing on that request, the judge found that the affidavit was “materially false” and that Fore had been “recklessly indifferent” to the truth.

The court treated the request for sanctions as a motion to hold Fore in contempt of court. In a civil contempt proceeding, the remedy is remedial, not punitive, so the court could not assess a criminal punishment against Fore. The court decided, however, that it had the power to impose a monetary sanction as compensation “for losses sustained.” It ordered Fore to pay $6,667.70 to compensate the state for the cost of ordering transcripts and hiring its own expert witness.

The court also sanctioned Clark’s attorney. The attorney did not appeal. Fore, on the other hand, appealed the award of sanctions.

Civil Contempt Sanctions Against an Expert Witness

Under Florida law, civil contempt can be imposed as a sanction for the intentional violation of a court order. In most cases, contempt sanctions are imposed to coerce compliance with an order. Somebody who is ordered to produce a document might therefore be jailed or made to pay a daily fine until the document is produced.

The Florida Supreme Court long ago recognized the judicial power to impose a “compensatory fine” in civil contempt cases. While that is what the trial court purported to do when it fined Fore, the District Court of Appeal concluded that the trial court had no authority to impose that sanction. The appellate court noted that contempt fines may only be imposed when a court order has been violated. Fore was not ordered to prepare an affidavit and his inclusion of erroneous information, even if reckless, did not violate a court order.

The appellate court also noted that civil contempt sanctions are only available for intentional violations of a court order. The trial court found that Fore was negligent and even reckless when he prepared the affidavit, but it did not find that he intentionally included false information. For that additional reason, no civil contempt sanction could be imposed.

Other Sanctions Against Expert Witness

The prosecution argued that the trial court had inherent authority to sanction the expert, even if the court incorrectly characterized its decision as the imposition of a contempt sanction. The prosecution pointed to a line of Florida cases that allow trial courts to sanction lawyers who act in bad faith. Those sanctions typically involve an order to pay some or all of the other party’s attorney fees.

The appellate court concluded that the doctrine permitting sanctions against lawyers who act in bad faith should not be extended to expert witnesses. The court noted that the threat of sanctions might deter expert witnesses from testifying for fear that they will be punished if they make a mistake. In addition to the chilling effect that the threat of sanctions might have on expert testimony, the court expressed concern that sanctioning an expert witness might violate the expert’s right to freedom of speech, access to the courts, and due process.

Lessons Learned

Experts should always take care to double-check the facts upon which they base opinions. Unfortunately, mistakes happen. Fore did the right thing when he reported the mistake to the defense attorney. To protect himself, however, he probably should have been more aggressive about following through with the attorney, and should have drafted a revised affidavit based on correct information.

Still, the appellate decision sends the message that experts should not be sanctioned if they make unintentional errors. Experts should try not to make mistakes and should correct any mistakes they discover, but they should not be intimidated by the possibility that an opposing lawyer might ask a judge to sanction them if their opinions turn out to be wrong.

DWI Forensic Expert Accused of Perjury and Mixing Up Results

Christopher Youngkin, a forensic analyst in Texas, has been accused of perjury and mixing up lab test results. Youngkin is one of the leading forensic analysts for the Department of Public Safety in Garland, Texas. The lab where Youngkin works is responsible for blood alcohol content testing and other tests in seven counties in Texas: Collin, Dallas, Denton, Tarrant, Rockwall, Cooke and Grayson. The thousands of DWI convictions where Youngkin testified at trial could now be in jeopardy.

Court documents show that Youngkin mixed up the blood alcohol tests on suspected DWI cases in 2013. A report that Youngkin sent to the police showed that a woman who had not consumed any alcohol had a blood alcohol level that was almost two times the legal limit. The error was soon discovered, the samples were retested, and no one was harmed. However, local defense attorneys are now questioning how that error has been handled and whether Youngkin has given conflicting testimony on the matter.

The Hearing

According to a partial transcript of a hearing on the matter, defense attorney Troy Burleson questioned Youngkin about a case in Dallas County in which he testified that he had switched vials in 2013. Burleson then questioned Youngkin about conflicting testimony given in Collin County, where he reported that he had never switched vials.

At Youngkin’s hearing, County Court at Law Judge Lance S. Baxter advised Youngkin that he had the right to remain silent and the right to consult an attorney. Youngkin invoked his Fifth Amendment right not to testify.

The Response

DWI Attorney Deandra Grant said that Youngkin has testified multiple times about these trials and given conflicting testimony.

Defense attorney George Milner has said that one of his clients was recently acquitted in a DWI case where Youngkin admitted his error.

Grant and Milner say that they now question the validity of Youngkin’s tests and testimony in other cases.

A spokesperson for the Department of Public Safety has refused to comment on the allegations, saying, “it would not be appropriate for us to discuss at this point. The relevant facts will be argued in a courtroom, which is the appropriate venue for an ongoing case.”

Retired Judge John Creuzot has commented that a finding of inconsistent testimony is serious. He explained, “The DA’s office, if they find out that their witness has committed perjury, they may want to recuse themselves because they have an intimate relationship by having used him as a witness in the past… It may be more appropriate to ask the judge to appoint a special prosecutor.”

Neither the Collin County nor Dallas County district attorney’s offices would respond to the specific allegations against Youngkin. The Dallas County district attorney’s office commented that this is an evolving matter that will continue to monitor.

This controversy comes just weeks after the Harris County toxicologist, Dr. Fessessework Guale, resigned after her academic qualifications were questioned. Dr. Guale had regularly testified in Houston-area DWI cases.

Expert Faults Police Interrogation Tactics in Newborn Murder Trial

A 15-year-old girl charged with murdering her newborn in California relied on an expert witness to cast doubt on the reliability of her confession. The expert questioned police interrogation tactics that have been shown to produce false confessions.

Because the accused is a juvenile, press accounts refer to her as “Maribel S.” Her first-degree murder charge was tried by a judge (rather than a jury) in Santa Maria Juvenile Court. She was prosecuted by the Santa Barbara County District Attorney’s Office.

Maribel based her defense on evidence that she did not know she was pregnant until she gave birth and that she did not intend to cause the baby’s death. Prosecutors argued that Maribel knew she was pregnant and wanted to conceal the pregnancy and childbirth from her parents. They argued that evidence from her cellphone showed that she searched the internet for ways to induce a miscarriage.

Evidence Concerning Childbirth

A registered nurse testified that Maribel came to a medical center on January 17 complaining of vaginal bleeding and abdominal pain. During her examination, the nurse noticed an umbilical cord attached to Maribel’s body. Prosecutors alleged that she gave birth, and murdered her child, that day.

A physician’s assistant testified that Maribel admitted giving birth to a baby in her bathroom. He said Maribel gave him three different versions of events that occurred after the birth. In one version, she said she held the baby on her lap for an hour. In another, she mentioned flushing the baby down the toilet.

Prosecution’s Expert Evidence

Police found the baby’s body in a bag next to the tub. No blood was visible in the bathroom, but forensic experts used a luminol test to search for spots of blood that had been wiped clean. They found blood spots on the bathroom floor, walls, and door.

A forensic pathologist who performed an autopsy expressed the opinion that the baby was alive at the time of delivery. Air in the baby’s lungs and stomach indicated that the baby took a breath before dying. He concluded that the cause of death was a “sharp force injury of the neck.” He based that opinion on his discovery of “a gaping incision wound” across the front and sides of the neck. The incision severed the baby’s trachea and carotid arteries.

Defense Experts Concerning Mental Health

The defense contended that Maribel suffers from post-traumatic stress disorder (PTSD) as a result of repeatedly being raped by her cousin between the ages of 8 to 11. Maribel gave a number of inconsistent statements about the baby’s death. The defense attributed those inconsistencies to her PTSD, which caused her to deny her pregnancy, and to police interrogation tactics.

The defense called a psychiatrist, Dr. Peter Garcia, as an expert witness to establish Maribel’s mental state. Dr. Garcia interviewed Maribel two days after the birth. He learned that Maribel began cutting herself after she was sexually assaulted. A Global Assessment of Functioning test supported the conclusion that Maribel needed psychological help and was at risk of continuing to harm herself. He diagnosed her as having acute stress disorder, a condition that precedes PTSD

A psychologist, Dr. Carolyn Murphy. also provided expert mental health testimony. Her testing revealed that Maribel showed no signs of psychopathy and had no criminal tendencies. She did have escapist tendencies and a tendency to avoid confrontation. Dr. Murphy attributed those tendencies to her victimization. Dr. Murphy also determined that Maribel tended to be impulsive and that she cut herself to help her cope with stress. Dr. Murphy concluded that Maribel suffered from PTSD.

Maribel’s parents made her live in Mexico between the ages of 5 and 11. Dr. Murphy expressed the opinion that Maribel suffered from abandonment issues and worried that she would be returned to Mexico if she did anything to displease her parents.

Expert Testimony Concerning Police Interrogation

Police detectives questioned Maribel on January 20. Maribel repeatedly said she did not remember much of what happened on the day her baby was born. She said she knew that she was bleeding nonstop but did not know she was pregnant until she gave birth.

Maribel told a detective that she delivered the baby in her bathroom and that the baby fell into the toilet. She said she then used a knife to cut the umbilical cord. As she was “sawing” the cord, the knife slipped and cut the baby’s neck.

Dr. Richard Leo testified for the defense as an expert in police interrogation practices and psychological coercion. He told the judge about the difference between an interview, which is meant to develop information, and an interrogation, which is designed to induce a confession. Interrogation tactics include:

Isolating the suspect from friends and family.
Building rapport with the suspect before becoming accusatory.
Convincing the suspect that the police already know she’s guilty, so she might as well admit her guilt.
Promising or implying a good outcome in exchange for a confession (“things will go easier for you”).
Lying about evidence of guilt that the police claim to have.
Explaining a theory of how the crime occurred and encouraging the witness to agree with that theory (a process known as “scripting”).

Dr. Leo also testified that a young person with a trauma-based disorder is particularly susceptible to those tactics. Research establishes that police who use interrogation tactics rather than conducting an interview have a history of obtaining false confessions.

Dr. Leo noted that the police used interrogation tactics when they questioned Maribel. They built a rapport, claimed that they already knew what happened, and implied that they had evidence of guilt that didn’t exist. They also “scripted” the confession by telling Maribel that she cut the baby’s throat and asking her to explain exactly how she did it.

Dr. Leo forthrightly acknowledged that parts of Maribel’s statement were probably not induced by interrogation tactics. For example, her statement that she felt the baby’s heartbeat and saw his stomach go up and down did not appear to be scripted.

The Verdict

Expert witnesses serve an important role by helping a judge or jury understand the evidence. In this case, Dr. Leo’s testimony may have helped the judge focus on the parts of Maribel’s testimony that were not scripted by the police, none of which suggested that Maribel had planned to commit a murder.

The judge described the case as emotional. He declined to find Maribel guilty of first degree murder, as the prosecution requested. He instead found her guilty of second degree murder, a crime that occurs when a decision to kill is not premeditated. He ordered a new psychological evaluation that he will consider before imposing a sentence.

Michigan Criminal Trials Highlight Expert Dispute over Shaken Baby Syndrome

Two Michigan men accused of killing infants have consulted expert witnesses to dispute allegations that the children died from Shaken Baby Syndrome. The cases, which have gone to trial, will serve as a critique of Shaken Baby Syndrome with both sides presenting experts to debate not only whether or not the condition explains the deaths, but whether or not it is valid given inconsistent results from medical science.

Michigan Men Accused in Shaken Baby Deaths

Leo Ackley and Anthony Ball have both been charged with felony murder and first-degree child abuse for deaths of their girlfriends’ young daughters. Prosecutors filing charges against both men have argued that there is sufficient evidence in each case to convict them based on Shaken Baby Syndrome — a medical condition caused by violent shaking which has been linked to death in infants and toddlers. According to police investigators and prosecutors, both children showed signs of being shaken and were home alone with the defendants at the time they suffered their injuries. Both men have argued that the children suffered a separate fatal injury, and claim that they did not take violent action against the children.

Ackley was found guilty on both charges after a 2012 trial, however, his conviction was overturned in 2015 when the Michigan Supreme Court found that his attorney erred by not calling a medical expert witness to dispute the child’s cause of death. Both Ackley and Ball recently asked the Michigan Supreme Court to delay their murder trials while experts dispute the validity of using evidence of injuries commonly associated with Shaken Baby Syndrome against them. However, the Court denied the request and allowed both trials to proceed.

Last week, Ackley was convicted a second time and will be sentenced to life in prison without possibility of parole during a sentencing hearing later this month. His attorneys have already promised an appeal. Ball’s trial is still ongoing, and will likely come to a conclusion within a week or two.

Experts Debate Shaken Baby Abuse during Michigan Trial

During his second trial, Ackley’s attorneys called several medical expert witnesses to offer pointed attacks on the conclusions by prosecution doctors who contend the victim’s injuries were the result of child abuse. According to defense expert witness Dr. Ljabisa Dragovic, the Oakland County Medical Examiner, the toddler could have been injured by a fall off a trampoline which occurred a few days before her death. Dr. Dragovic disputed the prosecution’s conclusion that child abuse caused the injuries, telling jurors that the injuries suffered were not conclusively linked to shaken baby syndrome.

Prosecutors in the case countered that the case was not specifically about shaken baby syndrome, but was instead focused on abusive head trauma and that their medical experts provided sufficient evidence connecting the defendant to the victim’s injuries. According to the prosecution’s medical expert, the brain samples of the toddler victim indicated she suffered from a head injury caused by significant force suffered while she was alone with the defendant. Further, according to the prosecution expert, the child showed other troubling signs, including bruising consistent with child abuse and a change in eating behavior.

Ultimately the jury was convinced that Ackley caused the injuries to the child victim and found him guilty for a second time, however, the lingering questions about the use of evidence of shaken baby syndrome — even if it is termed abusive head trauma — serves as a reminder that experts across the country are disputing a condition which has long been accepted in American criminal trials.

Michigan Cases Highlight Criticism of Shaken Baby Syndrome

Medical expert witnesses who specialize in child abuse and child injuries have divided on the existence of shaken baby syndrome. According to the Washington Post, there have been almost 2,000 cases in the United States which were built on evidence of abusive shaking. Of those cases, 213 resulted in acquittals or overturned convictions due to misdiagnosed shaken baby syndrome, leading many experts in the medical community to question the validity of the diagnosis. Research designed to challenge the conclusions of shaken baby syndrome has intensified, and legal agencies have received funding to challenge convictions based on the diagnosis.

On the other side, several medical experts maintain that shaken baby syndrome, which they argue should be called abusive head trauma instead, is a real medical condition which most physicians support. Proponents of shaken baby syndrome have criticized reports which call the condition into question, and argue that medical science supports a connection between shaking and specific head trauma injuries that prosecutors can use to earn abuse and murder convictions. Despite support for shaken baby syndrome causing abusive head trauma, experts continue to question its validity and use during criminal trials.

Oregon Court Decides Defendant Should Have Been Allowed to Have Forensic Expert Search His Accuser’s Computer

Google makes a record of all searches that site visitors conduct. A federal law makes those records available to prosecutors but not to the individuals being prosecuted. To assist his defense, the attorney for Thomas Bray made repeated attempts to obtain records of Google searches conducted by Bray’s accuser. In opposition to that request, the prosecution called a police officer as an expert witness. The officer testified that Google did not have the requested records. That testimony was incorrect.

On appeal from Bray’s conviction, the Oregon Court of Appeals characterized the prosecution’s tactics, including the police officer’s “expert” opinion, as “seriously disturbing.” The appellate court decided that the trial court should have granted Bray’s request to have an independent forensic expert search the computer for evidence of Google searches.

Bray’s Prosecution

Thomas Bray was an anesthesiologist. He met a woman (identified in the court decision as “J”) through an internet dating site. They had drinks together and then went to Bray’s apartment. J subsequently accused Bray of sexually assaulting her.

When J arrived home, she sent a text to a friend that said “I think he raped me last night.” She testified that she then conducted internet searches to learn the definition of rape under Oregon law. After completing that research, J called the police and Bray was arrested.

Bray’s lawyer theorized that J searched the internet for evidence of Bray’s wealth before deciding whether it would be profitable to make a false sexual assault claim, followed by a lawsuit. J did, in fact, file a lawsuit against Bray. Bray’s lawyer attempted to obtain J’s search history from Google to determine the content of her searches, but Google refused to honor his subpoena because federal law prohibits the disclosure of electronically stored information.

The federal law contains an exception that allows disclosure to law enforcement agencies. Bray’s attorney asked the court to order the prosecutor to request the search information and to make it available to the defense. The court did so.

The Prosecution’s Expert Testimony

The prosecution took a series of steps to resist the court’s order, none of which were successful. At one point, it claimed that obtaining J’s IP address would be “impractical and expensive,” even though the prosecution already had her IP address. After the court repeatedly ordered the prosecution to request the Google records, the prosecution told the court that it had not tried to do so because it learned that making the request would be “futile.”

To explain its noncompliance with the court order, the prosecution called an officer from the Bend Police Department to testify as an expert witness. The officer told the court that Google did not maintain records of searches for more than 28 days. The officer admitted during cross-examination that he did not base that opinion on anything he learned from Google, but said he heard about the policy by talking to another police officer who claimed to have learned about it from one of Google’s attorneys. The officer did not know the attorney’s name.

During a recess in the hearing, Bray’s attorney searched Google’s website and discovered that it retains search information for 9 months. The judge then chastised the prosecution for offering inaccurate expert testimony and for its deliberate disobedience of the court order. The judge ordered the prosecution to subpoena the data from Google and threatened to hold the district attorney in contempt for the prosecution’s willful circumvention of the court’s discovery order.

Three months after the court first ordered the prosecution to serve Google with a subpoena, the prosecution finally did so. It later advised the court that Google would not release the information without a search warrant. The court eventually concluded that it did not have the power to order the prosecution to apply for a search warrant.

Request for Defense Expert

The defense then subpoenaed J’s computer and asked the court to enter an order turning the computer over to an independent forensic expert who would determine (1) whether the content of the Google searches could be found on the computer and (2) whether and when J erased the hard drive, as she claimed to have done. The trial court refused to do so after ruling that having a forensic expert search J’s computer for evidence of Bray’s innocence would violate J’s right to privacy.

Bray went to trial without the Google information. He was convicted and sentenced to 300 months in prison. Bray appealed.

The Police Officer’s Expert Testimony

The Oregon Court of Appeals lambasted the prosecution for its efforts to resist the court’s discovery order. The court found that the prosecution’s conduct, including reliance on an “expert” who based an opinion on hearsay that he made no attempt to verify, was “seriously disturbing.” The court characterized the prosecution’s defiance of the court’s order as “nothing short of an attack on the judicial system itself.”

The court nevertheless declined to reverse Bray’s conviction due to prosecutorial misconduct because Google would not have provided the records in response to a subpoena even if the prosecution had more promptly obeyed the court’s order. The misconduct was therefore dreadful but not harmful.

The Defense Request for an Independent Expert

On the other hand, the Court of Appeals rejected the prosecution’s argument that J had a statutory right to privacy that was superior to Bray’s constitutional right to compel the production of evidence in his trial. The right to compel the production of relevant evidence is protected by the Sixth Amendment to the United States Constitution. That right overcame any right J may have had to keep the contents of her hard drive a secret.

The court noted that the prosecution’s argument would have greater force if Bray simply wanted the authority to read everything on J’s hard drive. By asking that the hard drive be given to a forensic computer expert who would determine whether the hard drive contained relevant material (and, if the contents were erased, the date on which that happened), the defense took care to protect J’s privacy rights.

The trial court expressed concern that J’s privacy would be invaded because “the forensic guy” would theoretically be able to access everything on her computer. The court of appeals did not share that concern. The appellate court assumed that a forensic expert would obey the trial court’s order and would only search the computer for evidence of Google searches within a specified time frame. Any intrusion into J’s privacy would therefore have been minimal. In addition, the defense agreed to let the court choose the expert to obviate any fear that the expert might give the defense greater access to the data than the court permitted.

In short, the request to have an independent forensic expert conduct a limited search of J’s computer was reasonable. Because the trial judge denied that request without applying appropriate legal standards, Bray’s conviction was vacated and the case was returned to the trial court to appoint an expert and to decide whether a review of the material discovered by the expert would be appropriate.

Supreme Court to Rule on Case Where Expert Testified that Race Predicts Violence

The Supreme Court had heard oral argument in the case of Duane Buck, a Texas murderer who was convicted after an expert witness testified that he was more dangerous because he was black.

The Conviction

Duane Buck was convicted of the murder of his girlfriend, Debra Gardner, and a man he believed she was having an affair with. He also shot his own stepsister. The shootings took place in front of Gardner’s children.

At his trial, Buck’s attorney, Jerry Guerinot, called psychologist Walter Quijano as an expert witness. Quijano testified that Buck was statistically most likely to commit future crimes because he was black. The propensity to commit future crimes is a key element in a death penalty sentence in Texas. Buck was sentenced to death.

Appeals Process

Buck’s conviction and death sentence were affirmed by Texas courts. His appellate attorney did not raise the issue of the racist testimony introduced by his attorney at trial. The federal appeals courts rejected this argument because it had not been raised in a timely manner in the Texas courts.

Buck sought relief under Federal Rule of Civil Procedure 60(b)(6), which allows a court to grant relief from a final judgment in an “extraordinary circumstance.”

The federal district court and the 5^th Circuit Court of Appeals denied relief. The Supreme Court granted certiorari.

Oral Argument Before the Supreme Court

Buck’s attorney through the NAACP, Christina Swarns, argued that Buck had been sentenced to death based upon “a false and pernicious group-based stereotype. Texas Solicitor General Scott Keller defended the appellate ruling and said that there was ample evidence to support a death sentence.

The Justices appeared to be in agreement that the court would rule in Buck’s favor. Justice Steven Breyer stated that the facts of Buck’s case “proves the arbitrariness of what’s going on out there.” Justice Ruth Bader Ginsburg said, “Doesn’t it show how abysmal his counsel was?” Justice Samuel Alito noted that, “What occurred at the penalty phase of this trial is indefensible.”

Reaction

Director Counsel for the NAACP Legal Defense & Educational Fund, Sherrilyn Ifill, stated that, “We are all at risk when our justice system allows prosecutors and juries to exercise lethal discretion based on race… Duane Buck’s case is as much about his own unlawful death sentence as it is about the ability of Harris County’s criminal justice system to produce outcomes free from the taint of racial discrimination.”

Legal commentator and Harvard Law School lecturer, Ian Samuel, noted that the courts are generally sympathetic to a petitioner such as Buck. “If you have a legitimate claim of ineffective assistance of counsel in a death penalty case, especially at the penalty phase, then there is no procedural obstacle on this earth that the Court is going to regard as sufficient to stop you from bringing that forward.”

After oral argument, Buck’s stepsister Phyllis Taylor, whom he shot, told reporters that she supports him and hopes that his death penalty conviction is vacated.

Judge Orders Douglas County to Pay $25K for Expert Testimony in Defense of Anthony Garcia

Judge Gary Randall has ordered Douglas County to pay $25K for expert testimony in defense of Anthony Garcia.

The Murders

Anthony Garcia is charged in the 2008 murders of Thomas Hunter and Shirlee Sherman and the 2013 murders of Dr. Roger and Mary Brumback.

On March 13, 2008, Dr. Bill Hunter drove home from work and noticed his housekeeper’s car still parked at his house. He was surprised because she was usually gone by the time he got home from work. When Hunter walked into the house he found his housekeeper, Shirlee Sherman, face down on the floor with a knife in her back. He immediately ran through the house, looking for his son. He found him, face down in the dining room with a knife in his neck.

Sherman had 18 cuts to her neck and a bruise to her forehead. Thomas Hunter had almost 10 wounds on his neck, severing his jugular veins and carotid arteries on both sides.

In May 2013, a piano moving company went to the Brumback house to pick up the Brumbacks’ piano for their move. The company owner, Jason Peterson, found the Brumbacks’ front door cracked open. When no one answered his knocks or calls, he peered into the open front door and saw the magazine of a handgun lying on the floor. Peterson called 911.

The responding police officers found Roger Brumback face down in a pool of blood. He had been shot in the shoulder and stomach and stabbed in the neck. They found Mary Brumback in the next room, also dead from knife wounds.

Garcia’s Arrest

Because of the similarities in the two events, investigators began to look at people who had connections with the victims in both crimes. Because Thomas Hunter’s father, Dr. Bill Hunter worked with Dr. Roger Brumback at the same office in Creighton University’s pathology department, investigators began to look into students who had been terminated or disciplined. Garcia was one of the few students that fit that description.

Electronics that were confiscated from Garcia’s home showed that he searched for the home addresses of his former supervisors, Dr. Brumback and Dr. Chanda Bewtra on May 12, 2013. Additionally, a stripper at a club that Garcia frequented told police that Garcia admitted to killing “a small boy and an old lady.”

Garcia was charged with the murders of the Brumbacks, Sherman, and Hunter.

Prosecutors allege that Garcia killed the four as revenge for Dr. Brumback and Dr. William Hunter firing Garcia from the Creighton University Medical Center in 2001.

Lack of Funds For Defense Experts

As Garcia’s trial began, his attorney argued that he did not have funds to pay for the expert witnesses that would be necessary to Garcia’s defense. Garcia signed an affidavit that declared himself to be indigent. Douglas County District Court Judge Gary Randall ruled that Garcia could not help pay for his own defense and ordered Douglas County to pay $25,000 for expert witnesses to testify on Garcia’s behalf. The money will be put into a trust account held by Garcia’s attorneys, who will have to document all related expenses.

Update on the Case

Anthony Garcia was found guilty on all counts.

Expert Witnesses Build Case to Disband FLDS-Controlled Marshal’s Office

Having persuaded a jury that the twin communities of Colorado City, Arizona and Hildale, Utah discriminated against individuals who did not share the religious beliefs of town officials, the Justice Department wants to disband the Marshal’s Office that serves those towns. It will rely on expert witnesses in an effort to persuade a federal judge to grant that remedy.

The FLDS and Warren Jeffs

Years ago, members of a polygamous sect of the Mormon Church broke away from the mainstream religion and took up residence in isolated communities. Two such communities are the sister cities of Hildale and Colorado City, known collectively as Short Creek.

The communities have been tightly controlled by the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS). Before his imprisonment, Warren Jeffs, a former president of the FLDS, claimed that nearly all of the land surrounding Short Creek was held by a church trust.

In 2004, Jeffs expelled the mayor of Colorado City and 19 other men who, in Jeffs’ view, failed to follow church doctrine. He reassigned their wives and children to other men in the community.

In 2006, after spending some time as a fugitive on the FBI’s Ten Most Wanted list, Jeffs was arrested. He was charged with multiple crimes in various jurisdictions. In 2011, he was sentenced to life imprisonment in Texas for two counts of sexual assault of a child.

Justice Department Lawsuit

After Jeffs was sentenced, the Justice Department filed a civil rights lawsuit against government officials in the two towns, alleging that the city violated the rights of non-FLDS members by discriminating against them in the provision of housing and city services. Before the case went to trial, community officials settled discrimination claims under the Fair Housing Act by agreeing to pay $1.6 million.

At the conclusion of the trial, a jury found that the police departments in the two cities “followed, harassed and intimidated nonbelievers.” Police behavior included subjecting non-FLDS members to unconstitutional detentions and arrests. The jury also found that city officials denied city services, including building permits and water hookups, to non-FLDS members.

The claims about improper policing were brought under the Violent Crime Control and Law Enforcement Act. That law permits the Justice Department to address patterns and practices of police misconduct. Since the law does not authorize a jury trial, the jury’s findings about unlawful police actions are considered advisory. In the next stage of the trial, the presiding federal judge will decide whether constitutional violations occurred and, if so, what remedy to order.

Expert Testimony

Among other remedies, the Justice Department wants the court to disband the Colorado City Town Marshal’s Office. In support of that request, the Justice Department intends to call law enforcement officers as expert witnesses.

The Justice Department proposes to have the sheriff’s departments of Washington County, Utah and Mohave County, Arizona take over law enforcement duties in the two communities. Law enforcement officials from those agencies are expected to provide expert testimony regarding the ability of their departments to handle that task. They will also testify about the difficulty their departments have encountered when trying to work cooperatively with the Marshal’s Office.

The city government will argue that disbanding its law enforcement organization is a drastic and unnecessary remedy. To counter that argument, the Justice Department plans to call former Phoenix Police Chief Jack Harris as an expert to explain why attempts to reform the Marshal’s Office would be costly and ineffective.

The Justice Department also wants to call Washington County Attorney Brock Belnap to describe his experience with the Marshal’s Office. Belnap is expected to offer expert opinions about the need to disband the Marshal’s Office in order “to ensure constitutional policing in the Cities.”

The town government plans to call Colorado City Marshal Jerry Darger to provide his expert opinion that disbanding the Marshal’s Office would have a negative impact on the residents of the two communities. In his opinion, the two sheriff’s departments have failed to provide needed assistance to the towns when they were asked to do so in the past.

The court has scheduled a hearing to take evidence on the discrimination remedy in late October. It will probably issue a decision shortly after the hearing concludes.

Neuropathologist Testifies That Toddler Suffered Abuse-Related Trauma

Neuropathology expert Dr. Bennet Omalu has testified in the death case of Cameron Morrison.

The Case

In the case of the People v. Darnell Dorsey, Darnell Dorsey is accused of assaulting and causing fatal injury to Cameron Morrison, his girlfriend’s 20-month-old child. Dorsey is charged with California Penal Code 273a and 273ab. California Penal Code 273a makes it a crime for any person to cause suffering or death to any child and is punishable by time in county or state jail. California Penal Code 273ab makes it a crime for any person taking care of or in custody of a child under age eight to assault the child by force or produce bodily injuries to cause the death of the child. A violation of California Penal Code 273ab is punishable by 25 years to life in prison. Cameron was under Dorsey’s care when he was taken to the hospital and later pronounced dead.

The People are represented by Deputy District Attorney, Michelle Serafin. The People called Dr. Bennet Omalu as an expert witness.

Dr. Bennet Omalu’s Background

Dr. Omalu is a physician, forensic pathologist and neuropathologist, with a masters in Business Administration. Dr. Omalu focuses on Public Health and epidemiology, with an emphasis on the study of disease and movement. Dr. Omalu is credited with discovering chronic traumatic encephalopathy (CTE), a disease he discovered while performing an autopsy on a former NFL football player. Chronic traumatic encephalopathy is a progressive degenerative disease of the brain found in those who have a history of repetitive brain trauma. Dr. Omalu has performed over 8,000 autopsies since 1984 and is the Chief Medical Examiner in San Joaquin County.

Dr. Omalu was sent different samples from Cameron Morrison’s body from the medical examiner in the case. Dr. Omalu reviewed Cameron’s medical records and published his independent findings for the courts. Cameron was found to have severe brain trauma and a damaged hypothalamus. Dr. Omalu also examined Cameron’s other organs. He found evidence of contusions in the lungs, liver, and abdomen, which are often signs of child abuse. Dr. Omalu said that Cameron’s brain showed several signs of trauma, as evidenced by subdural hemorrhaging, brain swelling, and external injury.

Dr. Omalu’s Testimony

Dr. Omalu testified that Cameron’s cause of death was severe brain injury due to head trauma.

Under direct examination by Michelle Serafin, Dr. Omalu testified that, “There were axial and vascular injury from the trauma” and that the injuries to Cameron’s body could not have happened in the hospital. Dr. Omalu testified that “no physician makes a conclusion of child abuse based on one test or culture, a combination of tests are done in order to make the conclusion of child abuse” and concluded that the injuries on Cameron’s spine showed evidence of brain trauma and hemorrhage. Dr. Omalu also testified that Cameron’s death was caused by blunt force trauma of the brain, back (spine), torso and trunk.

Defense attorney, Joseph Gocke, handled Dr. Omalu’s cross-examination. Gocke attacked Dr. Omalu’s credibility, bringing up a 2009 story by a Scottish journalist that accused Dr. Omalu of false findings. Dr. Omalu responded that the journalist in question had been hired by the NFL to damage his credibility, because he had discovered that repeated head trauma causes brain damage.

ExpertPages Blog