Category Archives: ExpertWitness

Police Tactics Expert Witness Testifies in Trial of North Carolina Officer who Killed Unarmed Suspect

A North Carolina police officer accused of excessive force in the shooting death of an unarmed black suspect in September of 2013 called an expert witness in police tactics to bolster his defense before closing arguments.  The defense expert was called to counter testimony from prosecution expert witnesses who explained that the officer used unreasonable force when he deployed his firearm.  The jury will deliberate this week to determine if the officer is guilty.

Prosecutors in North Carolina Police Shooting Argue Excessive Force

On September 14th, 2013 Jonathan Ferrell, a black resident of North Carolina, crashed his car on a dark patch of road in eastern Charlotte.  Ferrell walked to a nearby house to ask for aid, but the homeowner called 911 to report a possible burglary.  Police responded to the scene minute later, and without approaching or verbally addressing Ferrell one officer fired a Taser shot at him.  After the Taser shot missed, Officer Randall Kerrick opened fire with his pistol hitting Ferrell 10 times and killing him.

Kerrick was subsequently suspended from the police force, arrested, and charged with using excessive force to cause Ferrell’s death.  Prosecutors have argued throughout the trial that Kerrick had no reason to resort to lethal force in addressing the potential suspect, and that his use of a firearm was unnecessary and criminally excessive.  As part of the prosecution’s case, police captain Mike Campagna testified as an expert in the department’s use of force training and procedures by telling jurors that Kerrick should have turned to non-lethal force in an effort to subdue the suspect.

Prosecutors largely ignored the racial component of the trial (Kerrick is white while Ferrell was black), instead focusing on the fundamental principles of police use of force in situations like the one Kerrick faced.  Arguing that the officer inappropriately resorted to using his gun, state attorneys told jurors in closing arguments that lethal force was uncalled for and excessive to the point where Kerrick deserved a conviction.

Defense Attorneys for NC Police Officer Call Use of Force Expert Witness

Throughout the trial, Kerrick’s attorneys have argued that the officer was justified in using deadly force because he had reason to feel threatened by Ferrell.  Showing jurors the dented front door of the house that Ferrell had pounded on and pointing out that the suspect, who was a former football player and physically intimidating, had been intoxicated at the time of the incident, Kerrick’s lawyers painted a scene where Ferrell was threatening and approaching the officers with apparent intent to harm them.  The defense argued that Kerrick’s belief that he needed to use deadly force was reasonable given the circumstances the officer found himself in.

To bolster justification for Kerrick’s actions, defense attorneys called Dave Cloutier who is a police training expert witness with knowledge of proper police use of force procedure.  According to Cloutier, Kerrick’s decision to deploy deadly force to subdue Ferrell was consistent with the department’s training.  Cloutier has been an instructor to North Carolina police, and pointed out during his testimony that the evidence suggested Ferrell was running towards the officers at the time of the shooting.  According to Cloutier’s expert opinion, a suspect running at an officer with apparent intent to injure him would justify use of deadly force.

Police scientist Eve Rossi was called as a DNA expert witness to conclude the defense’s case by testifying that Ferrell’s DNA was found on Kerrick’s gun and Kerrick’s DNA was found under Ferrell’s fingernails.  Taking the testimony of its lead expert witnesses together, defense attorneys argue that the physical evidence supports Kerrick’s position that Ferrell was approaching him with possible intent to take his weapon which justified use of deadly force by the officer.  The testimony of these two expert witnesses for the defense is likely to play a significant role in the jury’s verdict that will be announced later this week.  If convicted, Kerrick faces up to 11 years in prison for the shooting.

 

Search Expert in Durst Case Alleged to Have Conflict of Interest

Millionaire Robert Durst, having been acquitted in 2003 of murdering his Galveston neighbor and arrested this year for murdering crime writer Susan Berman, now faces federal charges of illegally possessing a pistol in a New Orleans hotel room. Durst has felony convictions from 2004 for skipping bail and tampering with evidence. It is a violation of federal law for anyone with a felony record to possess a firearm or ammunition.

Durst is challenging the search of the hotel room where the pistol was found. To that end, he wants to call Don DeGabrielle as an expert witness. DeGabrielle is a former U.S. Attorney for the Western District of Texas and a former FBI agent. His qualifications notwithstanding, federal prosecutors want to bar his testimony, claiming he has a conflict of interest.

The Robert Durst Story

Durst became a “celebrity defendant” when he was placed on trial for murder after shooting Morris Black and chopping up his body. The jury decided that the shooting occurred while Durst was struggling to defend himself and found him not guilty.

Durst acknowledged that after the shooting, he drank a fifth of Jack Daniels, chopped up Black’s body, and dumped the pieces into Galveston Bay — acts that, given his intoxicated state, he says he does not remember committing. When he was charged with Black’s murder, he posted bail and fled to Texas. After his acquittal, Durst entered a guilty plea to charges of concealing evidence and bail jumping.

According to Durst’s attorney, the 2003 trial was made more complicated by the fact that “Durst is rich, wore a wig, pretended to be a mute woman, and was suspected of killing his wife in 1982.” Durst’s murder trial and his suspected involvement in two other homicides was the subject of the HBO documentary The Jinx, not to mention countless stories in the tabloids.

Although Durst was never charged with the disappearance of his wife, Los Angeles prosecutors earlier this year charged Durst with murdering Susan Berman, a close friend who was found dead in her home in 2000. The charge is largely based on information revealed in the HBO documentary, including a statement that Durst made while he was being recorded without his knowledge. Durst’s muttered remark, apparently made to himself while using the bathroom — “What the hell did I do? Killed them all, of course” — is part of the new evidence that motivated Los Angeles prosecutors to charge Durst with Berman’s murder.

The Gun Prosecution

After the new murder charges were filed, the police in Los Angeles asked the FBI for assistance in locating Durst. FBI agents found Durst in a New Orleans hotel, where he was staying under an assumed name. Durst was arrested in the lobby as he was walking toward the elevator.

A subsequent search of Durst’s hotel room uncovered the .38 pistol, resulting in a “felon in possession of firearms” charge. The search took place after Durst was unable to produce identification in the hotel lobby. FBI agents claim they “escorted” Durst to his hotel room and conducted an “inventory search” of the room’s contents. In addition to finding the gun, the agents seized $44,000 in cash, a tracking number for a package with more cash, a mask, and an ID in the name of an alias.

Durst’s attorneys have asked the court to suppress the results of the hotel room search, including the gun. Because no arrest warrant had been issued prior to Durst’s arrest, they contend that the FBI agents lacked authority to search Durst’s room. They also contend that the agents lacked probable cause for Durst’s arrest.

The Expert’s Testimony

Don DeGabrielle, now in private practice, has been hired by the defense as “an expert witness on search warrants and practices.” The District Court judge who is hearing the case agreed that DeGabrielle could testify at the suppression hearing.

Prosecutors are now asking the court to reconsider its ruling. They argue that DeGabrielle has a conflict of interest. When Durst purchased the gun that was used in Black’s shooting, he checked “no” on a federal form that asked whether he used marijuana. Because Durst testified during the murder trial that he was a habitual user of marijuana, Texas police detectives wanted Durst charged with a federal crime for making a false statement on the form.

Federal prosecutors in the New Orleans prosecution point to a news story in which DeGabrielle, who was then the U.S. Attorney in the Texas district where Durst bought the gun, told reporters for a Galveston newspaper that he would not be filing charges. Federal prosecutors contend that his decision not to prosecute, and to inform reporters of that decision, “create an appearance of bias that should disqualify DeGabrielle from now profiting as an expert.”

The attempt to disqualify DeGabrielle seems a stretch. The initial decision not to prosecute Durst was made by DeGabrielle’s predecessor. When DeGabrielle took office two years later, he chose not to disturb that decision, in part because the decision had already been communicated to Durst’s attorneys. Talking to reporters is something that U.S. Attorneys routinely do. It is difficult to identify evidence of bias in DeGabrielle’s brief contact with Durst’s case.

In any event, experts are commonly accused of bias in favor of the party for whom they testify, simply because they are being paid for their testimony. Whether they are actually biased is a question for the trier of fact (in this case, the trial judge) to consider after listening to the expert testify. Allegations of bias are rarely a reason to disqualify an expert from testifying, particularly when those allegations are as weak as they appear to be in Durst’s case.

 

Proposed Expert Testimony Rejected in Child Pornography Case

The United States Court of Appeals for the First Circuit affirmed a defendant’s conviction of possessing child pornography after rejecting his argument that the District Court should have allowed his expert witness to testify. The decision, United States v. Gerald J. Silva, essentially holds that the jurors were just as capable as the expert of recognizing pornography when they saw it.

Facts of the Case

After shutting down a website that was distributing child pornography, Canadian authorities seized the website owner’s business records and provided them to the United States Postal Inspection Service. Gerald Silva’s name and address appeared in those records. After his home was searched, Silva was charged with and convicted of six counts of receiving child pornography and one count of possessing child pornography.

Silva was one of 348 customers of the website to be charged with a crime. They included “six law enforcement officials, nine religious leaders, 40 school teachers, three foster parents, 32 children volunteers and nine health professionals.”

Ironically, Silva worked as a Rhode Island state probation officer assigned to supervise sex offenders. Silva claimed that he ordered videos from the website for professional reasons.

Meaning of Child Pornography

Federal law defines child pornography as including any visual depiction of a minor engaging in sexually explicit conduct. A federal statute defines “sexually explicit conduct” to include the “lascivious exhibition of the genitals or pubic area of any person.”

The requirement of a “lascivious exhibition” is important. It protects parents from prosecution who take photographs of their children taking a bath or playing in the nude. The word “lascivious” generally has the same meaning as the word “lewd,” but neither term is self-defining.

Federal courts generally agree that a “lascivious exhibition” of genitals occurs when the genitals are the focal point of an image. A video of a child touching his or her genitals, a photograph that shows a close-up view of genitalia, or the image of a child in a sexually suggestive pose will generally be regarded as lascivious. On the other hand, a more distant photograph of a nude child whose legs are pressed together and who is swinging on a swing set probably will not be considered lascivious.

The Proposed Expert Testimony

Some images fall into a gray area between pornographic nudity and permissible nudity. In particular, whether a pose is innocent or sexually suggestive is often a matter of opinion. Silva’s attorney hoped to exploit that gray area by using an expert witness to bolster the contention that certain images were not pornographic.

Silva’s lawyer proposed to call John Leo, a retired Professor of English at the University of Rhode Island, as an expert in film and video. Professor Leo would have testified that the settings for the videos were not sexually suggestive. Leo would also have testified that the children’s poses and conduct were not sexually suggestive.

The Legal Test

Federal courts follow Rule 702 of the Federal Rules of Evidence in deciding whether expert testimony should be admitted in a federal trial. Rule 702 allows a court to admit expert testimony if the testimony:

  • would help the jury understand the evidence or decide a fact that is important to the verdict;
  • is based on sufficient facts or data;
  • is the product of reliable principles and methods; and
  • is based on a reliable application of those principles and methods to the facts of the case.

The first question was at issue here: whether Professor Leo’s opinion would have helped the jury understand whether the videos constituted child pornography.

The Decision

The court of appeals held that Professor Leo was in no better position than the jurors to form an opinion about the videos. He did not purport to have an opinion of the videos’ artistic merit or of the reason a buyer would want to watch the videos. He did not suggest that he knew why the producer of the videos created them.

According to the court of appeals, the jurors were just as capable as Professor Leo of watching the videos and deciding whether the conduct and poses that they depicted were sexually suggestive. For that reason, Professor Leo’s opinion was not deemed helpful to the jury and his testimony was disallowed.

Given the language of the court of appeals’ opinion, a different result might have been reached if Silva had called an art historian or a filmmaker who could testify that the videos had artistic merit and that they fit within an artistic tradition that was unrelated to pornography. Testimony that the focus of the work as a whole is artistic rather than sexually titillating might satisfy Rule 702. Of course, whether any expert exists who would have formed that opinion after viewing the videos that Mr. Silva possessed is another question.

Expert Witnesses Testify in Lawsuit against North Carolina Voting Law

A high-profile voter rights lawsuit in Winston-Salem, North Carolina featured several plaintiff expert witnesses who have testified about the effect state voting laws have on African American, Hispanic, and other minority communities.  Recent laws passed by the North Carolina legislature have been challenged by plaintiffs who allege they were designed to discourage minority voters from casting their votes leading to an important federal trial that could impact similar laws across the country.  In an effort to demonstrate the negative impact that the voting laws have on minority communities, plaintiffs have summoned an array of expert witnesses to testify.

Minority Communities Challenge North Carolina Voting Laws

In 2013 North Carolina Governor Pat McCrory (R) signed legislation that reduced early voting days, put a stop to same-day voter registration, ended out-of-precinct voting, and ceased a program that allowed for preregistration by 16 and 17-year-old students.  According to the law’s supporters, the measure was designed to save money by cutting administrative costs and give voters confidence that the process was secure from voter corruption or fraud.  The law also mirrors similar measures taken by other states which do not have early voting or out-of-precinct ballots, and its supporters have repeatedly denied accusations that it was racially motivated with aims of reducing minority voter activity.

Minority advocacy groups such as the NAACP disagree, however, and argue that North Carolina’s history of racism and suppression of minorities suggests the motivation to pass the voting legislation was more sinister than advertised.  Attorneys for the Department of Justice, who has taken the lead in the Civil Rights lawsuit challenging North Carolina’s voting laws, argue that the laws were intentionally designed to discourage minority voting.  Legislatures, the DOJ argues, knew full well that the citizens who relied on many of the now-cut programs were black or Hispanic at the time the law was passed, and purposefully steered the state’s voting regulations to suppress minority votes.

The North Carolina voting law was passed shortly after the Supreme Court eliminated provisions of the Voting Rights Act of 1965 which required certain southern states, including North Carolina, to submit any voting legislation to federal reviewers for approval.  Plaintiffs allege that the state took advantage of the relaxed requirements for voting legislation oversight, and instituted an intentionally discriminatory set of regulations.  To support this argument, plaintiffs spent the early days of the Civil Rights lawsuit to call several expert witnesses who testified about the effects of such voting laws and the influence of North Carolina’s history of racial discrimination.

Expert Witnesses Testify in North Carolina Voting Law Case

The plaintiffs relied heavily on expert witnesses with academic backgrounds who specialize in researching the effect social and economic conditions of minority groups like African Americans and Hispanics have on voting practices.  The long list of experts includes prominent researchers such as:

  • Morgan Kousser from Cal Tech is an expert in Southern politics and voting who closely examined the text of North Carolina’s voting bill, its legislative history, and statistics about minority voting practices. According to Dr. Kousser, the voting practices eliminated by North Carolina were primarily used by minority voters, and legislatures were made aware of this fact before passing the bill.  While Dr. Kousser could not point to a single legislator who demonstrated discriminatory intent, he noted that the state officials were well aware of the impact the law could have on minority communities.
  • Lynne Vernon-Feagans who is an expert witness researching poverty at the University of North Carolina Chapel Hill testified that poor African Americans would struggle to access voting stations and comply with other provisions of the North Carolina law because of the impact of poverty. Dr. Vernon-Feagans is not a voting expert witness, but was able to explain to the court that the logistics of voting under the new law would significantly hinder African American voters.
  • Barry Burden is an expert witness from the University of Wisconsin who specializes in political science research and he took the stand to explain that the costs of the law would be felt more heavily by black and Latino voters, suggesting that it would disproportionately discourage those minorities from voting.

In addition to these expert witnesses, the plaintiffs called political science and voting experts who attempted to explain to federal Judge Thomas Schroeder that North Carolina’s voting law will disproportionately impact minority citizens, and the legislators who passed it were aware of the law’s effect.  Judge Schroeder is presiding over the trial without a jury, and will make his decision after both sides finish presenting their argument.

New Skull Fracture Research May Cause Experts to Revise Child Abuse Opinions

Legal teams that seek to free wrongly convicted defendants from prison frequently turn to expert witnesses to help them prove a client’s innocence. New evidence provided by DNA experts has resulted in 330 post-conviction exonerations in the United States. Many of those innocent defendants were facing the death penalty.

As ExpertPages has reported, expert testimony is also persuading courts to reopen cases in which convictions were based on evidence of “shaken baby syndrome.” Advances in medical science have persuaded experts that many so-called “shaken baby” injuries that were once thought to have been inflicted as an act of abuse could have resulted from natural causes.

New research may cause forensic investigators to rethink their conclusions — and may lead to a new wave of exonerations —in child abuse cases involving skull fractures. In the past, experts testified that multiple fractures were indicative of child abuse. New research is now casting doubt upon that testimony. In the near future, experts may be called upon to help free wrongly convicted prisoners who are serving child abuse (or murder) sentences in cases where children experienced multiple skull fractures.

Skull Fracture Research at MSU

Until now, when doctors and medical examiners observed multiple fractures on a child’s skull, they regarded it as a “red flag” for child abuse — at least in the absence of an accident that produced multiple impacts with the child’s head. Researchers at Michigan State University are now questioning that conclusion. Their research may change the way forensic scientists interpret skull fractures when they are deciding whether a child was or was not the victim of child abuse.

After spending years smashing infant pig skulls and examining the results, the MSU research team has concluded that a single impact can cause multiple, unconnected fractures. That finding contradicts the conventional view that unconnected fractures can only be produced by separate impacts.

The research brought together Todd Fenton, the director of the MSU Forensic Anthropology Laboratory, and Roger Haut, the director of MSU’s Orthopaedic Biomechanics Laboratories. Fenton thought that merging the expertise of a forensic anthropologist and a biomechanical engineer could fill a gap in existing science. Their ultimate goal is to create a map of skull fractures that could be used to prove or disprove child abuse accusations.

Implications for Skull Fracture Child Abuse Cases

The research may lead to exonerations of individuals who have been convicted of child abuse on the strength of mistaken testimony that a single, accidental blow to the head could not produce multiple fractures. “Knowing what we know now,” Fenton told the Lansing State Journal, “our fear is that there may be people that have been wrongly accused of child abuse based upon those protocols.”

The MSU team’s findings may be particularly significant in cases where a defendant testified that a child was dropped accidentally or fell out of bed. In the past, juries may have rejected the defendant’s testimony simply because prosecution experts testified that a single fall would not produce multiple fractures.

Fortunately, honest scientists are willing to change their minds when advances in scientific research demonstrate that conclusions they drew in the past may be mistaken. Just as experts have recanted their testimony in shaken baby cases, experts who testified that multiple skull fractures could not result from a single impact may be asked to rethink their opinions by post-conviction attorneys working to free wrongly convicted defendants in child abuse cases.

Meeting Future Challenges

Fenton notes that determining the cause of a pediatric death is often challenging. “And often times,” Fenton says, “when those cases go to trial, expert witnesses line up on both sides and it can become really contentious.”

Before the MSU scientists began their work, there was little sound science upon which to base an interpretation of cranial fractures. The MSU team is working with computer scientists to build a skull fracture database that they have termed the Fracture Printing Interface. They hope that their database will give forensic experts a foundation for deciding whether a skull fracture pattern was or not the result of child abuse.

Experts Disagree About Effectiveness of Conversion Therapy

Whether gender attraction can be changed is the subject of expert testimony in a New Jersey trial. Conversion therapy — a controversial practice that promises to help gay men and lesbians overcome unwanted same-sex attraction — is at the core of a lawsuit filed by the Southern Poverty Law Center (SPLC) against an organization called Jews Offering New Alternatives for Healing (JONAH). The lawsuit contends that conversion therapy amounts to consumer fraud.

Perspectives on Conversion Therapy

Conversion therapy, sometimes known as reparative therapy, is intended to change an individual’s sexual identity or orientation. About 70 organizations in 20 states offer conversion therapy.

Arthur Goldberg, co-executive director of JONAH, contends that “homosexuality is a learned behavior which can be unlearned, and that healing is a lifelong process.” Taking the position that same-sex attraction is not a disease to be cured, the American Psychiatric Association (APA) and other organizations representing mental health professionals say that conversion therapy is ineffective and can be harmful to patients.

Three states and the District of Columbia prohibit conversion therapy programs from furnishing services to minors. With the support of the White House, federal legislation has been proposed that would ban licensed therapists in for-profit institutions from offering conversion therapy. The ban would not affect nonprofit counseling offered by religious groups.

The SPLC Lawsuit

The SPLC brought its lawsuit on behalf of six plaintiffs. The lawsuit, based on New Jersey’s Consumer Fraud Act, alleges that JONAH violated the Act’s prohibition of deceptive and fraudulent business practices by misrepresenting that same-sex attraction is a mental disorder and by falsely claiming that conversion therapy effectively changes sexual orientation. The plaintiffs seek restitution of the fees they paid to JONAH and compensation for the costs they incurred for therapy to recover from the emotional distress that JONAH allegedly inflicted upon them.

The Freedom of Conscience Defense Fund (FCDF) is defending JONAH. The FCDF takes the position that adults have the right to give greater weight to their religious faith than they give to their “putative sexual identity.” The FCDF contends that individuals who want to rid themselves of sexual desires that conflict with their faith are entitled to seek help from licensed professionals who share their beliefs.

The Court’s Rulings on Expert Testimony

Each side has attempted to bar the testimony of expert witnesses offered by the other side. Those efforts met with only partial success. The court denied the JONAH’s motion to prohibit three SPLC witnesses from giving any expert testimony.

The SPLC asked the court to prohibit JONAH’s expert witnesses from testifying that homosexuality is a “clinical condition” or disorder rather than a normal variant of human sexuality, a position that has been rejected by the APA and every major national and international professional organization in the field of psychiatry. JONAH countered that its experts based their opinions upon professional experience and valid methodologies and that the APA (and similar organizations) are advancing a political, rather than a scientific, opinion.

The court excluded proposed testimony concerning Orthodox Judaism’s view of homosexuality and the alleged harm that homosexuality does to society on the ground that those opinions had no relevance to the claims of fraud that the plaintiffs assert. The court also prohibited the experts from expressing the opinion that the plaintiffs’ claims to have been deceived are untruthful since the credibility of witnesses is for the jury, not the experts, to decide.

New Jersey follows the Frye standard, which admits expert testimony only if it is based on generally accepted science. The court declined to accept JONAH’s argument that the APA and other professional organizations all abdicated their responsibility to base their conclusions on scientific research rather than political correctness. The court concluded that the “overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal.” It therefore barred the experts from testifying that homosexuality is a mental disorder and not a normal variant of human sexuality. Since the proposed expert testimony about the benefits of conversion therapy was premised on the belief that homosexuality is a disorder or abnormal, the court also disallowed that testimony.

The Issues at Trial

While the scientific community agrees that homosexuality is normal, it has not produced a shared understanding of why some people are gay and others are straight. The extent to which people voluntarily or unconsciously change their sexual orientation is also controversial, given that some people experience a “fluidity” in their sexual identity over their lifetime. According to a journalist for The Atlantic who wrote about the SPLC suit, those gaps in expert knowledge have contributed to the growth of conversion therapy and may be the key to the trial’s outcome.

The court gave the SPLC a partial victory before the trial started by granting summary judgment in its favor on its claim that JONAH’s advertising violated the Consumer Fraud Act by misrepresenting that homosexuality is a disease or disorder and by advertising its “success rate” when it made no effort to track client outcomes. With the help of their experts, the plaintiffs will still need to prove that those misrepresentations caused them harm in order to prevail. The case is expected to go to the jury before the end of June.

Schizophrenia Expert Witness Testifies for James Holmes Defense

Defense attorneys for Colorado theater shooter James Holmes called a psychiatry expert witness to the stand this week to testify that the defendant suffered from schizophrenia at the time he committed the crime.  Before the expert could testify at open trial, attorneys for both sides debated her qualifications to offer her opinion during trial.

James Holmes Defense Calls Psychiatry Expert Witness

Throughout his murder trial, Holmes’s attorneys have argued that he was legally insane because he was in the midst of a psychotic episode at the time of the 2012 attack on a crowded Colorado theater.  In an effort to convince jurors that their theory of Holmes’s insanity is correct, they called Dr. Raquel Gur as a schizophrenia expert witness earlier this week.  Dr. Gur is a professor of Psychiatry Neurology and Radiology at the University of Pennsylvania, and she has been hired as a consultant for Holmes’s defense.

Dr. Gur is not a licensed and practicing forensic psychiatrist, however, she is a lead researcher in schizophrenia and psychiatry who has conducted hundreds of psychiatric interviews during the course of her career.  Dr. Gur is also no stranger to serving as an expert witness, and she has been asked for her opinion about a number of high profile offenders including the Unabomber Ted Kaczynski and Jared Loughner, who shot U.S. Representative Gabrielle Giffords and killed six bystanders in a case that did not.  Dr. Gur has testified as an expert during a number of criminal trials, and has offered pre-trial diagnosis in several other cases.

Despite her history as an expert witness in criminal cases, Dr. Gur faced stiff opposition from prosecutors who questioned her ability to add relevant testimony about whether or not Holmes was legally insane at the time of the shooting incident.

Colorado Prosecutors Challenge James Holmes Expert Witness

Before being allowed to take the stand as a psychiatry expert witness, Dr. Gur was asked pointed questions about her qualifications by District Attorney George Brauchler, who took the expert to task for not having forensic psychiatry experience or being a licensed clinical psychiatrist.  Dr. Gur consistently maintained that she had the research background and expert witness experience necessary to answer questions about Holmes’s mental state at the time of the shooting because she has interviewed hundreds of clients and conducted years of research on the effects and diagnosis of schizophrenia.

Attorney Brauchler also opposed the introduction of Dr. Gur’s power point slides into evidence, complaining that the defense had failed to provide prosecutors with the slides with sufficient advanced notice.  During a long hearing earlier this week, the parties closely reviewed each of Dr. Gur’s proposed slides and her CV to argue about what she will be allowed to say during trial.  Despite objections of the prosecution, Judge Carlos Samour allowed Dr. Gur to testify and present most of her slides to aid the jurors understanding of Holmes’s mental state at the time of the shooting.

Holmes Psychiatry Expert Witness Takes the Stand

After a contentious vetting process, Dr. Gur took the stand to explain to jurors that James Holmes suffered, and continues to suffer, from schizophrenic delusions that committing the atrocity would raise his “human capital” and make him become a more valuable person.  Dr. Gur conducted more than 28 hours of interviews with Holmes in a two-year period following his July, 2012 shooting, and testified that the defendant showed lack of emotional response and an inability to make rational decisions, which could indicate he suffers from schizophrenia.  After hearing Holmes speak about the shooting incident in the months that followed, Dr. Gur testified that in her expert opinion he was unable to distinguish right from wrong at the time of the shooting and was qualified for the insanity defense under Colorado law.

Dr. Gur’s testimony directly contradicts two prosecutorial expert witnesses who testified earlier in the trial that Holmes was not legally insane because he could distinguish right from wrong.  As the trial continues in the coming days, prosecutors will likely make a strong effort to discredit Gur on the stand and call her testimony into question during cross-examination.  After almost 45 days of trial, the defense is expected to conclude its case this week leaving only closing arguments before the matter goes to a jury for verdict.

Michigan Man Granted New Murder Trial After Attorney Failed to Use Expert Witnesses

The Michigan Supreme Court has granted a new trial to a man convicted of the death of a child under his care because his trial attorney failed to call expert witnesses in his defense.  During the initial trial in 2012, prosecutors used a handful of expert witnesses to suggest the defendant had abused the child, but the defense attorney did not respond with any experts who would propose an alternative theory of the injuries.

Michigan Man Receives New Murder Trial

Defendant Leo Ackley, 28, was convicted in 2012 for the 2011 death of 3-year-old Baylee Stenman, his girlfriend’s daughter who was left in his care.  Baylee died of subdural hematoma caused by head trauma that prosecutors believe was inflicted by Ackley while he was looking after the toddler.  Ackley, who has maintained his innocence throughout his imprisonment, argues that the girl fell off of her bed during a nap, and the death was a tragic accident instead of an act of child abuse.  During trial, prosecutors called five forensic and medical expert witnesses to the stand in order to explain the likely cause of the injuries that killed Baylee, but Ackley’s defense attorney did not provide a single expert to refute the testimony.

According to a unanimous ruling by the Michigan Supreme Court, the failure to call a single rebuttal expert witness to support the defendant’s theory of the crime qualified as ineffective assistance of counsel.  Given the failure of Ackley’s defense to consult an expert witness when medical expertise was critical to the outcome of the case, the Michigan Court granted a new murder trial to be conducted with a different attorney, giving Ackley the opportunity to fully explain his position in a court of law.  The decision was welcomed by Ackley’s family and his new attorney, Andrew Rodenhouse, who said that the Court was sending a message about the importance of incorporating expert witnesses into a complete defense.  Rodenhouse told reporters, “That’s really what the court is saying … telling trial attorneys, defense attorneys who do these things that you got to do a little more than just show up on the day of the trial. You got to actually do your homework and be prepared.”

Michigan Supreme Court Focuses on Use of Expert Witnesses in New Trial

In vacating Ackely’s conviction and remanding the case for a new trial, the Michigan Supreme Court emphasized the importance of expert witnesses during trials where the source of a victim’s injury were a point of contention.  Writing that expert testimony would have been “critical in this case to explain whether the cause of the child’s death was intentional or accidental,” the court found that the attorney’s failure to consult an expert, “fell below an objective standard of reasonableness, and there was a reasonable probability that this error affected the outcome of the trial.”

The Court went on to explain the importance of an expert in Ackley’s original trial, ““Counsel’s failure to engage expert testimony rebutting the state’s expert testimony and failure to become versed in the technical subject matter constituted a constitutional flaw in the representation, not reasonable strategy. Given the centrality of expert testimony to the prosecution’s proofs and the highly contested nature of the underlying medical issue, counsel’s single error of failing to consult an expert who could meaningfully assist him constituted ineffective assistance.”  Ultimately, because at the case involved an “unexplained and unwitnessed” death of a child, a complete defense necessitated expert witness involvement and the attorney’s failure to produce such evidence constituted a failure that warrants a second trial to correct.

Ackley is currently serving a life sentence for his conviction, and will likely remain in prison during the course of his new trial.  Prosecutors have expressed confidence that they are able to earn a second conviction on the strength of the evidence, but without question Ackley’s defense team will present at least one forensic medical expert witness to contend that Baylee’s tragic death was the result of an accident and not child abuse.

Bloggers Debate Expert Witness Fees in Hulk Hogan Litigation

Bloggers are at war over the fees that Hulk Hogan’s legal team has paid to an expert witness who is assisting his invasion of privacy lawsuit against Gawker. One blogger seems shocked that an expert in the ethics of journalism would charge $250 per hour. Another blogger, who has a stronger sense of what experts are worth, notes that Hogan is probably getting a bargain.

Hulk Hogan’s Lawsuit

Terry Bollea, who gained fame as a professional wrestler/entertainer using the name Hulk Hogan, sued the gossip website Gawker for $100 million after Gawker posted a video of Hogan having sex with Heather Clem. Hogan, who says he did not know he was being filmed, claims that posting the video violated his right to privacy.

Gawker contends that Hogan was having sex with his friend’s wife (apparently with the friend’s knowledge and consent) and that the video is newsworthy because it undercuts Hogan’s public denials that he was having an affair. Gawker’s lawyer argues that the public has a right to know “what is going on in the whole world” and that Gawker has a First Amendment right to report the newsworthy actions of public figures.

The video was apparently made on a surveillance system that Heather Clem’s husband had installed in their bedroom. How Gawker obtained the video has not been revealed, although rumors suggest that it was leaked by a disgruntled former employee of Hogan’s friend. Hogan’s lawyers argue that Hogan’s privacy interest in his intimate activity within a bedroom outweighs Gawker’s interest in reporting gossip, particularly when the report included a video depicting nudity that was taken without Hogan’s knowledge or consent.

Hogan’s invasion of privacy lawsuit was filed in Pinellas County Circuit Court in the State of Florida. The case is scheduled to go to trial next month.

An Expert in the Ethics of Journalism

Peter Sterne, writing for the online publication Capital, reports that Hogan’s legal team is paying $250 per hour for the services of University of Florida Professor Mike Foley as an expert in journalistic ethics. That fee will increase to $350 per hour for trial testimony.

Foley testified in a deposition that the existence of the tape and the fact of the affair are newsworthy, but that the video itself is not. Foley also testified that posting a video of a private sexual encounter is “not journalism” and “not ethical.”

Whether Foley will be permitted to testify has not yet been decided. Gawker’s lawyers have asked the court to exclude Foley’s testimony on the ground that it constitutes a subjective opinion that is not supported by “reliable principles and methods,” as Florida law requires. Gawker’s lawyers note that Foley did not conduct a survey of journalists to divine their opinion of ethical standards and did not ask other gossip journalists (such as National Enquirer reporters) whether they agree with the standard of journalistic ethics that he accuses Gawker of violating.

Sterne’s commentary highlights the fact that Foley spent many hours preparing an expert report after reviewing of Gawker’s coverage of Hulk Hogan. Given the hours that Foley had logged by the time of his deposition, Sterne estimated that Foley had already earned about $15,000 for his expert services.

Welcome to the World of Litigation

Another blogger, Joe Patrice, writes that it is “cute” when “normal people” like Sterne — that is, people who are not regularly involved with litigation — profess to be shocked by the expense of expert witnesses. Patrice points out that $15,000 is a small price to pay in a case that might produce a $100 million award of damages. Patrice also notes that $250 per hour is consistent with the average fee charged by nonmedical experts nationwide.

While Gawker’s lawyers criticized Foley because he has never testified in a trial, Patrice makes a sound argument that Foley’s lack of experience testifying in other cases insulates him from charges that he is a “professional witness” who will testify for anyone willing to pay a fee. From Patrice’s perspective, Hogan might be “getting a bargain” by paying $250 per hour to engage the services of a respected professor of journalism who has no prior testimony that can be used against him at trial.

Bite-Mark Expert Witness Recants Testimony, Opens Door for Death Row Appeal

A bite-mark expert witness central to a 1994 conviction of a Mississippi man has since recanted his belief in the strength of his testimony, setting the stage for a possible reversal of conviction by the state Supreme Court this month.  Although an expert recanting his testimony does not guarantee a new trial, the modern rejection of bite-mark analysis may carry significant weight in the death row appeal because of the value jurors placed on the evidence at the time of conviction.

Mississippi Man Convicted with Bite-Mark Expert Testimony

In 1992 police found the dead body of 84-year-old Georgie Kemp of Columbus, Georgia in her home.  Kemp had been beaten, stabbed, and sexually assaulted by her assailant before succumbing to her wounds.  After six days of investigation, police arrested Eddie Lee Howard, Jr., a sex-offender fresh out of prison, and accused him of committing the crime.  Howard, who has been described as having mental deficiencies, did not directly confess to the crime, but told officers, “I had a temper, and that is why this happened.”  During his first trial Howard was allowed to represent himself and was convicted without much effort from the prosecutors largely on the circumstantial evidence that he was not savvy enough to dispute.

In 1994, Howard was granted a new trial by the Mississippi Supreme Court and was not permitted to represent himself, forcing the prosecution to present stronger evidence that he committed the crime.  Although there was no DNA left at the scene of Kemp’s murder, prosecutors called forensic odonatologist Michael West as a bite-mark expert witness to link Howard to the crime.  During his testimony, West, who examined Kemp’s exhumed body, told jurors that the bite pattern uniquely matched Howard’s.  Further, West told the jury that one of the bite marks indicated Kemp was “fighting for her life” at the time of the attack.

Prosecutors lauded West’s visionary work in the field of bite-mark analysis, going so far as to compare him to Galileo, and relied heavily on his expert testimony to earn a death sentence for Howard in 1994.  In the intervening years, attorneys for Eddie Lee Howard have maintained his innocence, largely by pointing to a lack of DNA evidence and the occurrence of five similar crimes during the years Howard was in prison.  As Howard’s attorneys prepare for what is likely his final chance at appeal this week, they have an additional piece of evidence for the state Supreme Court to consider: Michael West has recanted his belief in the value of bite-mark testimony.

Bite-Mark Analysis Discredited by Modern Science

Throughout the 1990’s Michael West proudly extolled the accuracy of his bite-mark analysis, going so far as to proclaim his error rate was “something less than my Savior, Jesus Christ.”  With no one to challenge his analysis, West was used to help identify defendants using bite-mark analysis in a number of trials throughout the 90’s and early 2000’s.  The field of bite-mark identification was weakened in 2009 when the National Academy of Sciences submitted a report that rejected bite-mark identification as a reliable means of identifying a particular person from a pool of subjects.

The results of the 2009 study were reinforced four years later when the American Board of Forensic Odontology found wide variances among bite-mark experts tasked with using bite patterns to identify specific people.  By 2013, the Associated Press reported that more than 20 defendants convicted of rape or murder using bite-mark evidence had been exonerated since the year 2000, suggesting that the field is no longer accepted as reliable evidence in criminal trials.

Bite-Mark Expert Witness Recants Key Testimony

Faced with the mounting evidence against bite-mark analysis, Michael West has since recanted his position as an expert in the field.  During a deposition for the Eddie Lee Howard appeal in 2012, West told the court, “I no longer believe in bite-mark analysis.  I don’t think it should be used in court. I think you should use DNA. Throw bite marks out.” Based on this new position taken by the expert witness whose testimony linked Howard to the scene of Georgie Kemp’s murder, attorneys representing the death row inmate have argued that he is owed a new trial that fairly presents all reliable evidence against him.

Despite the recanting expert witness, overturning a capital murder conviction is a tall order and it remains to be seen whether or not the Mississippi Supreme Court is willing to go that far.  The case was heard in front of the state court this week, and a decision is expected in the coming months.