Category Archives: ExpertWitness

Bloody tear of Themis

NY Attorney General Criticized for Presenting Expert Testimony to Grand Jury in Daniel Prude Death Investigation

New York Attorney General Letitia James made an unusual decision to include the testimony of a defense expert when she presented the prosecution’s case against Rochester police officers who allegedly caused the death of Daniel Prude. Despite evidence that Prude stopped breathing while being restrained by the police, a grand jury refused to indict the officers who restrained him. James now faces criticism for her choice of expert witnesses.

Death Investigation

James began an investigation of Prude’s death in July 2020. The results of her investigation are summarized in a report that she released prior to the grand jury vote.

Prude’s brother called 911 to report that Prude was suicidal, had used PCP, and had run from the brother’s home on a freezing night without putting on shoes or a coat. Prude’s brother hoped that the police would locate and help Prude.

Prude tossed a brick through a window and later told a tow truck driver that he needed help. The driver called 911 after Prude ran away. The driver reported that Prude was covered with blood. Prude removed all of his clothing while he was being recorded by a bystander.

Officers of the Rochester Police Department arrived at the scene. Officer Vaughn told Prude to get on the ground and put his hands behind his back. Prude complied and Vaughn handcuffed him. Other officers arrived. While awaiting an ambulance, Prude began to spit, so officers placed a spit sock over his head. The spit sock made Prude even more agitated.

The officers believed that Prude was trying to stand. Officers Taladay and Santiago forced him to the ground and held him there using a stabilization technique known as “segmenting.” They learned that technique in their training. The report explains that “the segmenting involved PO Vaughn holding Mr. Prude’s head to the side and applying downward pressure while PO Taladay placed a knee along Mr. Prude’s lower back / belt line.”

An ambulance arrived with a paramedic and an EMT. The report suggests that they acted with a lack of urgency. Neither the paramedic nor the EMT checked on Prude’s condition as he was being restrained. The paramedic considered using a sedative to calm Prude while the EMT brought a gurney from the ambulance.

Prude vomited, then fell silent. At some point, Vaughn noticed that Prude was no longer breathing. He rolled Prude onto his side. The EMT could not find a pulse so he asked the paramedic for assistance. The paramedic directed the EMT to begin CPR. After several minutes, Prude recovered a heartbeat, but he never recovered consciousness. Prude was removed from life support about a week later.

Autopsy Report

The county medical examiner performed an autopsy. She ruled the death a homicide. She identified the causes of death as:

  • Complications of asphyxia in the setting of physical restraint
  • Excited delirium
  • Acute phencyclidine intoxication

“Excited delirium” is a controversial diagnosis that refers to “the abrupt onset of aggression and distress, typically in the setting of illicit substance use, often culminating in sudden death.” The nonprofit Brookings Institution cautions that the diagnosis “is not recognized by the vast majority of medical professionals.”

Many experts regard excited delirium as junk science. The medical examiner who autopsied Prude noted that the condition is “quite rare.” It is almost exclusively diagnosed when a death occurs while a suspect is being restrained by the police.

The finding of more than one cause of death is not unusual. People often die for multiple reasons. If one person stabs another in the heart, heart failure will be a cause of death, but so will stabbing.

The question in Prude’s case was whether he would have died in the absence of police restraint. If not, police restraint was a cause of his death. The medical examiner concluded that neither PCP ingestion nor excited delirium would have caused Prude’s death if he had not been restrained. She therefore concluded that restraint was a cause of his death.

Retained Experts

The Attorney General’s office retained Dr. Gary Vilke to review the official autopsy results. Dr. Vilke is an emergency room physician in California who has testified in more than one hundred cases involving deaths in police custody. In each case, he was retained by the police officer who was accused of causing the death.

Dr. Vilke agreed with the medical examiner that Prude’s ingestion of PCP caused him to experience excited delirium. Vilke determined that Prude died from cardiac arrest. He described people who are in a state of excited delirium as being particularly vulnerable to heart attacks.

James has been criticized for hiring Dr. Vilke, an expert who has “a consistent track record of deflecting blame from police when people die in their custody — including with regard to excited delirium and restraint leading to asphyxia, two hotly debated concepts that loomed large in Prude’s death.” Perhaps an expert whose career suggested greater objectivity about deaths in police custody would have been a better choice.

James also hired Geoffrey Alpert, an expert in use of force. Alpert generally concluded that the officers acted within the boundaries of acceptable police practices. He concluded that placing the spit sock over Prude’s head, taking him to the ground, and performing the “segmenting” maneuver were all reasonable decisions. He did fault the officers for failing to roll Prude over after he vomited to prevent him from choking on his vomit.

Grand Jury Proceedings

James’ office presented evidence about Prude’s death to a grand jury. It asked the grand jury to indict the officers. The grand jury refused to do so.

Given the oft-repeated observation that any prosecutor can get a grand jury to indict a ham sandwich, the grand jury’s decision not to indict has raised questions about the Attorney General’s commitment to the case. While she expressed disappointment in the grand jury’s decision and concern about the rate at which black men are killed by police officers, a state Attorney General generally sides with the police — and routinely relies on police witnesses — in criminal prosecutions.

While James blamed the system for the grand jury’s decision, an attorney for the Prude family is asking why James’ office presented testimony from Dr. Vilke, an expert who routinely testifies in support of police officers. James is, after all, part of “the system.” Perhaps “the system” should not rely on an advocate of the controversial “excited delirium” theory when it seeks homicide indictments.

James might have been concerned that the defense would call a witness like Dr. Vilke at trial and wanted to test that defense before the grand jury. Yet presenting defense evidence to a grand jury is exceedingly uncommon. Prosecutors generally have no obligation to present evidence of innocence to a grand jury, although they may choose to do so in the interest of fairness. Whether it was “fair” to present controversial evidence about “excited delirium” to the grand jury is a matter of opinion.

 

Georgia

Georgia Supreme Court Rules State Can Pay Expert Witness Costs for Pro Bono Defense Lawyers

The Georgia Supreme Court has ruled that the state can pay expert witness costs for indigent defendants who are using pro bono private defense lawyers.

The Crime

In October 2005, Tara Faye Grinstead went missing. Her disappearance remained unsolved for two years until Bo Dukes reported that his friend Alexander Duke had confessed to the murder. Dukes eventually confessed to authorities that he was responsible for the murder. He was indicted for malice murder, felony murder, aggravated assault, burglary, and concealing a death in connection with Grinstead’s death.

The Expert Witness Funding Dispute

Duke was initially represented by a public defender from the Tifton Judicial Circuit’s Public Defender’s Office. Seventeen months later, the public defender withdrew and new defense counsel filed an entry of appearance, indicating that they were representing Duke pro bono.

Defense counsel filed motions seeking funds from the county to hire an expert in false confessions and an investigator. The trial court denied those motions, ruling that the Indigent Defense Act did not require local government to fund such requests.

Duke’s attorney’s appealed and the Georgia Supreme Court heard oral argument on the issue in January 2021. Duke’s attorneys argued that he is entitled to receive funding under the United States Constitution, the Georgia Constitution, and the Indigent Defense Act (IDA) in order to protect his Sixth Amendment rights to counsel and a fair trial. The State argued that indigent defendants do not have a constitutional or statutory right under the IDA to state-funded investigators or experts.

The Georgia Supreme Court Ruling

The Georgia Supreme Court found that the trial court erred by adopting the Georgia Public Defender Council (GPDC) and circuit public defender’s interpretation that Duke is not indigent under the IDA because he is represented by pro bono counsel. It also found that the trial court erred by concluding that the IDA did not provide a mechanism for an indigent defendant represented by pro bono counsel to obtain state funds from the GPDC or the circuit public defender.

The court noted that the IDA defines an indigent person as “[a] person charged with a felony who earns or, in the case of a juvenile, whose parents earn, less than 150 percent of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person, his or her dependents, or, in the case of a juvenile, his or her parents or the parent’s dependents.”

The trial court had agreed with the GPDC’s and circuit public defender’s interpretation that Duke had “other resources that might reasonably be used to employ a lawyer” because he had obtained a pro bono attorney. The Georgia Supreme Court determined that this was incorrect. The plain meaning of “other resources” when used in content would mean resources other than earnings that would be usable to pay for a lawyer. In contrast, a pro bono attorney is one who represents a client without pay. The fact that a defendant has pro bono counsel does not mean that he has “other resources that might reasonably be used to employ a lawyer” for the purpose of determining indigence.

The court also noted that the IDA requires the director of the GPDC to “work with and provide support services and programs for circuit public defender offices and other attorneys representing indigent persons in criminal or juvenile cases in order to improve the quality and effectiveness of legal representation of such persons.”

The Georgia Supreme Court remanded the case to trial court to allow Duke to seek access to state-funded ancillary services from the GPDC or the circuit public defender.

Police Brutality

Expert Witnesses in the Derek Chauvin Trial

Derek Chauvin is on trial in Minnesota for second degree felony murder, third degree murder, and second-degree manslaughter. The charges arise out of George Floyd’s death under circumstances that sparked nationwide protests regarding the use of force against unarmed suspects. Cellphone and bodycam videos establish that Chauvin knelt on Floyd’s neck and that Floyd repeatedly told Chauvin, “I can’t breathe.”

None of the crimes require proof that Chauvin intended to cause Floyd’s death. Second degree murder requires proof that Chauvin caused Floyd’s death, without intending to do so, while Chauvin was committing a felony — in this case, third degree assault. Third degree murder requires proof that Chauvin acted with a depraved state of mind and that his conduct was imminently dangerous to Floyd. That standard is essentially one of reckless behavior coupled with not caring about the harm the behavior might cause. Third degree manslaughter requires proof that Chauvin’s negligent actions caused Floyd’s death.

Each crime requires proof that Chauvin’s actions were a substantial cause of Floyd’s death. Chauvin’s actions need not have been the only cause of death. Chauvin can be held responsible for Floyd’s death if Floyd would not have died in the absence of Chauvin’s conduct. Expert witnesses for the prosecution and Chauvin will debate whether kneeling on Floyd’s neck contributed to his death.

Forensic Pathologists

The official autopsy report by the Hennepin County Medical Examiner’s Office concluded that Floyd died from cardiopulmonary arrest — in simple terms, his heart stopped beating effectively. The autopsy determined that neck compression while restraining Floyd in handcuffs was a cause of the cardiopulmonary arrest. The medical examiner classified the death as a homicide.

Defense experts are likely to focus on other potential causes of death, including Floyd’s hypertensive heart disease and his ingestion of fentanyl and methamphetamine. Experts might opine that excited delirium caused by drug abuse was the cause of Floyd’s death, although “excited delirium syndrome” is controversial and the mechanism of death is not well understood.

Defense experts may also call attention to the absence of evidence of strangulation. A pathologist who isn’t connected to the case has explained that compression of the neck can prevent oxygen from reaching the brain by blocking the airway. Neck compression caused by kneeling would not leave the same ligature marks caused by strangling someone with a rope or wire. That pathologist suggests that Floyd’s underlying health conditions were not the cause of his death. Floyd was, after all, living with those conditions before he encountered Chauvin.

The prosecution has identified five forensic pathologists who may testify for the state. Three of those witnesses are employed by Hennepin County. The defense will apparently rely on the testimony of Dr. David Fowler, a Baltimore pathologist who has testified for both the prosecution and defense in multiple homicide prosecutions.

Defense Experts

In addition to Dr. Fowler, the defense has identified a forensic toxicologist, a forensic psychiatrist, and a doctor of emergency medicine as medical experts. The defense has also identified Barry Brodd as a use of force expert.

Brodd’s resume indicates that Brodd is a former police officer who has served as an expert witness in use of force litigation since 1995. Use of force experts generally testify about the policies and practices that determine when an officer’s use of force is justified, including the degree of force that officers are allowed to use under different circumstances.

Whether Brodd will be allowed to testify that it was reasonable for Chauvin to kneel on Floyd’s neck for nine minutes is unclear. Experts are often allowed to explain whether an officer’s conduct is objectively reasonable. However, some courts have held that only a jury can determine whether an officer’s use of force was reasonable in light of the facts that the jury accepts as true. Those courts view an expert’s opinion about whether the officer’s use of force was justified as intruding on the jury’s function.

Forensic Psychologist Excluded

The prosecution intended to call forensic psychiatrist Dr. Sarah Vinson as an expert witness. The prosecution wanted Dr. Vinson to explain how people in Floyd’s position react to traumatic events. In particular, she would have testified that “Floyd’s behavior as officers attempted to put him into the squad car was consistent with any reasonable person’s anxiety or panic during a traumatic event.” The testimony was meant to foreclose or counter the argument that Floyd was resisting arrest.

Worried that Dr. Vinson’s testimony might open the door to evidence of Floyd’s similar emotional reaction to an arrest in 2019, the court ruled Dr. Vinson’s testimony inadmissible. The court also excluded most evidence regarding Floyd’s behavior during that arrest.

 

United States Supreme Court Building

Failure to Request Funding for Expert Violates a Defendant’s Rights

The importance of retaining expert witnesses in criminal cases was underscored by a recent decision of the Michigan Supreme Court. The court concluded that defense counsel was ineffective for failing to seek funding for an expert and that the failure was prejudicial to the defense.

Hinton v. Alabama

The U.S. Supreme Court has made clear that criminal defense attorneys must retain a qualified expert witness to counter prosecution experts when a defense expert’s testimony could create a reasonable doubt as to the defendant’s guilt. In 2014, the Supreme Court decided that Anthony Hinton’s lawyer failed to provide Hinton with the effective assistance of counsel that the Constitution requires. The lawyer asked for funding to hire a ballistics expert. The judge authorized $1,000 but invited the lawyer to request more if he needed it.

Hinton’s lawyer mistakenly believed that $1,000 was the statutory maximum and did not request additional funding. He could not find a qualified expert who would work for $1,000, so Hinton called an expert who had no significant training or experience in ballistics to counter the testimony provided by the prosecution experts.

After Hinton was sentenced to death, his new lawyers produced three highly qualified expert witnesses who testified that the bullets recovered from the murder victim could not be matched to Hinton’s gun. Alabama argued that the lawyer was not ineffective because he found an expert to testify. In the state’s view, all experts have equal value.

The Supreme Court disagreed. The Court held that a reasonably capable lawyer would have understood that additional funding was available. The lawyer knew his expert wasn’t qualified but failed to seek funding for an expert who was qualified. Recognizing that “incompetent or fraudulent prosecution forensics experts” pose a “threat to fair criminal trials,” the Court held that defense attorneys have a duty to retain “a competent expert to counter the testimony of the prosecution’s expert witnesses.” Since Hinton’s lawyer did not do so, his performance was deficient.

 People v. Ceasor

The importance of the Hinton decision is illustrated by the prosecution of Terry Lee Ceasor in Michigan. Ceasor was convicted of first-degree child abuse. The prosecution’s expert, Dr. Holly Gilmer-Hill, gave familiar testimony that the child’s injuries could only have been caused by violent shaking. Her testimony attempted to impeach Ceasor’s explanation that the child accidentally fell from a couch. In fact, her “shaken baby” theory has been repeatedly discredited by advances in medical knowledge.

Ceasor appealed his conviction. His appellate lawyer argued that his trial lawyer was ineffective because he did not hire an expert to refute Dr. Gilmer-Hill’s testimony and did not request public funding to cover the cost of the expert’s testimony. The Michigan Court of Appeals held that Ceasor could not demonstrate that trial counsel’s failure was prejudicial because his appellate counsel did not ask for an evidentiary hearing. Without calling an expert witness at a hearing, Ceasor was unable to prove that an expert would have challenged Dr. Gilmer-Hill’s opinion. Nor was Ceasor able to prove that trial counsel’s failure to call an expert witness was not dictated by his trial strategy.

Ceasor later made a post-conviction motion that challenged the effectiveness of his appellate attorney. Ceasor supported the motion with affidavits from pathologists, a neurosurgeon, and a biomedical engineer. The expert witnesses opined that Dr. Gilmer-Hill’s opinion was based on discredited science. In Ceasor’s view, an effective appellate advocate would have requested a hearing and presented the expert evidence that his post-conviction lawyer was offering.

Apparently misunderstanding the nature of Ceasor’s post-conviction motion, the trial judge concluded that Ceasor was reframing issues that had already been decided. The Michigan Court of Appeals declined to hear an appeal from that decision.

Failure to Request Public Funding

Ceasor then raised the ineffectiveness of both his trial and appellate counsel in a federal habeas corpus proceeding. The district court held Ceasor to an impossible standard of proof by ruling that he needed to establish that a request for an evidentiary hearing would have been granted if he had requested one. Parties can only prove how a judge should rule, not how a judge would rule.

On appeal, the Court of Appeals for the Sixth Circuit concluded that Ceasor would have been entitled to a hearing if his appellate attorney had requested one and if he had presented the same evidence his post-conviction counsel mustered. The Sixth Circuit noted that Michigan law allows a court to “provide public funds for indigent defendants to retain expert witnesses.” Although it is not required to do so “on demand,” trial counsel neglected to ask for funding. He therefore deprived Ceasor of the opportunity to call an expert witness to challenge the prosecution expert’s testimony.

The Sixth Circuit concluded that trial counsel did not make a strategic decision not to call an expert, but simply didn’t realize that he could apply for public funding of expert testimony. Applying Hinton, the Sixth Circuit held that trial counsel’s performance was deficient because lawyers are expected to know the law. Counsel was unfamiliar with the Michigan statute that authorized public funding and with the Hinton decision.

Since the prosecution based its case almost entirely on Dr. Gilmer-Hill’s testimony, a reasonable attorney would have known that her testimony required a response. When “the expert is the case,” refuting expert testimony with other expert testimony is essential whenever the prosecution expert’s opinions can be challenged.

Concluding that it is “objectively unreasonable to fail to take steps to retain an expert” when one is necessary, the court held that habeas relief was warranted. It remanded the case to the district court so that the court could decide whether the testimony of Ceasor’s experts might have raised a reasonable doubt.

In the district court, the parties stipulated that Ceasor was prejudiced because his appellate lawyer’s failure to request an evidentiary hearing deprived Ceasor of the opportunity to litigate “a claim of ineffective assistance of counsel that was reasonably likely to succeed.” The district court granted Ceasor a new state court appeal.

Michigan Proceedings

Ceasor pursued his appeal. The trial judge stubbornly decided that defense counsel was not ineffective, an issue that was already resolved to the contrary in federal court. Defense counsel attempted to shift blame to Ceasor, who (according to counsel) had led him to believe that his mother would pay for an expert. Counsel claimed he only learned two weeks before trial that Ceasor would not be able to fund an expert. Counsel also testified that he never heard of a case in which a court agreed to fund an expert when the defendant had retained counsel privately. The court of appeals affirmed the judge’s finding that, given those facts, counsel was not ineffective in failing to seek public funding for an expert witness.

The Michigan Supreme Court made short work of the appellate court’s analysis. It was undisputed that Michigan law allows public funding of experts. Ceasor’s lawyer had arranged for an expert to testify. He had time to apply for public funding of that testimony prior to trial and chose not to make that application. Counsel’s belief that a court would not fund an expert when counsel is retained privately was belied by the plain language of a statute that authorizes courts to do so. Failing to make the request was therefore objectively unreasonable. The court granted Ceasor the fair trial that he deserves.

Lessons Learned

Ceasor has traveled a long road in his pursuit of a fair trial. Assuming the district judge credits his expert witnesses — and there is no reason the judge shouldn’t — Ceasor will likely be granted a new state appeal, which may lead to additional appeals, which should ultimately lead to a new trial.

Had Ceasor’s lawyer recognized that Michigan law allows the funding of expert witnesses, and had he retained experts to challenge Dr. Gilmer-Hill’s discredited “shaken baby” testimony, Ceasor’s years of incarceration might have been avoided. His case is a reminder to all defense attorneys that they should always recognize the need to hire defense experts when the prosecution rests on expert testimony that can reasonably be challenged.

 

Will Lawyers Continue to Depose Experts Remotely After the Pandemic Ends?

Zoom has become a way of life for businesses that conduct interviews or meetings during the pandemic. Courts have used Zoom to conduct hearings remotely to avoid unnecessary gatherings that might spread the virus. Lawyers have relied on technology to take depositions without bringing lawyers, clients, witnesses, and court reporters together in the same conference room.

Rule 30(b)(4) of the Federal Rules of Civil Procedure allows depositions to be taken remotely by stipulation or by court order. As a judge in the Southern District of New York observed, remote depositions have become “the new normal.” The judge concluded that a remote deposition in a “document intensive” case would not be prejudicial because documents can be shared in advance.

The judge also noted that widely available video technology permits documents to be viewed by all parties to a deposition. While sophisticated technology may be more difficult to master than Zoom, a judge in the Southern District of California rejected the notion that lawyers are incapable of learning anything new. The judge wrote: “There are numerous resources and training opportunities available throughout the legal community to assist Sodexo’s counsel in the operation and utilization of the new technology.” Even lawyers who are set in their ways can be expected to learn new tricks — or to ask their paralegals for help.

Advantages of Remote Expert Witness Depositions

Conducting an expert witness deposition remotely has advantages that extend beyond protection from a contagious disease. Experts are more likely than fact witnesses to live some distance from the place where the lawsuit was filed. Plaintiffs sometimes find that the most suitable expert for a case lives in a different state. Defendants sometimes hire expert witnesses who live on the other side of the country to drive up the cost of litigation as a tactic to encourage settlement for less than a claim’s full value.

Taking depositions remotely is thus a cost saving tool. Deposing an expert who lives far away forces lawyers to travel or to pay the expert’s travel expenses. Depositions can also be scheduled more easily if lawyers and witnesses don’t need to consider travel time when they look for availability on crowded schedules. Witnesses and lawyers may also perform more capably if they haven’t been exhausted by travel.

Clients might choose not to expend the funds or time to attend the deposition of a distant expert witness. If the deposition is taken remotely, the client can watch the deposition in the lawyer’s office and may be able to share informative notes with the lawyer as the expert testifies. Remote depositions therefore have value in keeping clients engaged in the litigation.

Disadvantages of Remote Expert Depositions

Remote depositions are always subject to technical glitches caused by slow connections or unfamiliarity with software. As lawyers have become more familiar with the technology, those glitches have become a less frequent annoyance.

A larger problem with remote depositions is the limited scope of images captured by cameras. An expert isn’t supposed to look at documents unless the questioner asks the expert to do so, but it is difficult to be sure that the expert isn’t consulting notes if the expert isn’t testifying in person.

Reading body language is difficult when a camera is focused on the expert’s face. While the camera should capture facial expressions, more subtle nonverbal clues — including sweating when questions become uncomfortable — may not be readily apparent.

The Future of Remote Expert Depositions

As the pandemic winds down, will remote depositions of experts become less frequent? Lawyers have mixed feelings about remote depositions. Attorneys who hire distant experts solely to increase the burden of litigation may want to resume in-person depositions as soon as they can. Lawyers with deep-pocket clients who enjoy traveling (and billing for travel time) may also encourage a return to in-person depositions.

Lawyers who are advancing the cost of depositions, hoping to be repaid from settlement or verdict proceeds, will likely advocate for the continued use of remote depositions. Lawyers who have been placed on a tight budget by clients may also want to reduce expenses by deposing experts remotely.

When lawyers disagree about taking depositions remotely, the federal rules and most state rules allow the judge to order that the deposition be taken remotely. Judges who might once have accepted the argument that video depositions are a poor substitute for live depositions might now decide, based on their own experience in conducting court hearings over Zoom, that questioning a witness remotely isn’t significantly different from questioning the witness in person.

In the end, lawyers will need to weigh the advantages and disadvantages of remote expert depositions in each case. The experience that lawyers and judges have gained during the pandemic, however, make it likely that distant experts will routinely be deposed by video.

California Law Legal System Concept

California Supreme Court Rejects Expert Testimony in “Meal Break Rounding” Case

In Donohue v. AMN Services, LLC, the California Supreme Court considered how California’s meal break requirement intersects with rules that permit employers to base wages on “rounded” time. As is common in class action wage claims, both the employee and the employer relied on expert opinions to establish their claims and defenses.

Meal Break Rules

California requires employers to give their employees an unpaid 30-minute meal break if an employee works a shift that is longer than 5 hours and another if the employee’s shift lasts longer than 10 hours. The meal break must be provided within the first five hours of an 8-hour shift. A penalty is assessed if the employer violates the meal break rules.

Federal law does not require employers to give meal breaks to employees, but it does define when meal breaks count as “hours worked” for purposes of minimum wage and overtime. A meal break can only be unpaid if the employee is relieved of all job duties. When an employee is required to sit at her desk and answer the phone while eating lunch, the employee is working and must be paid for the meal break.

If the break is relatively short (so that it might be classified as a “snack break” or “bathroom break” rather than a “meal break”), the employee must be paid for the break. A ten-minute break, for example, isn’t a meal break.

Rounding Rules

Rounding rules generally allow employees to calculate wage payments by rounding the hours an employee worked. For example, if a timecard shows that the employee worked eight hours and two minutes, the employer can round the time down to eight hours.

Federal rules require employers to choose reasonable increments for rounding. For example, they can’t round to the nearest half hour. Thus, employers cannot avoid paying overtime when an employee works for eight hours and twelve minutes during each day in a five-day workweek by basing pay on five eight-hour days.

Employers also need to follow a neutral rounding policy rather than a policy that favors the employer. In simple terms, employers can’t round down unless they also round up in an equivalent way. For example, an employer can round to the nearest quarter hour by rounding 8 hours and 6 minutes down to 8 hours, but only if it also rounds 8 hours and 9 minutes up to 8 hours and 15 minutes.

Donohue’s Claim

Donohue worked as a nurse recruiter for AMN. Company policy entitled her to a full 30-minute meal break. Donohue kept track of her work hours by using a program called Team Time on her desktop computer. She “punched in” when she began her shift and “punched out” when she ended her shift. She “punched out” when she began her lunch period and “punched in” when she returned to work.

Team Time automatically rounded time to the nearest ten minutes. If Donohue punched out at 11:02 a.m. and punched in at 11:25 a.m., Team Time recorded her meal break as lasting from 11:00 a.m. to 11:30 a.m. Consequently, her 23-minute meal break would be rounded to a 30-minute break.

In an apparent response to California law, Team Time added a dropdown menu to its program. When Team Time recorded a meal break of less than 30 minutes, it asked the employee if the employee had been given the choice to take a 30-minute break and was “voluntarily” taking less time. If the employee clicked a statement to affirm that the short meal period was voluntary, the program recorded a full 30-minute break, and the employee was denied any overtime that might result from recording the actual work time.

The dropdown menu only appeared if the rounded time showed less than a 30-minute break. In the example above, the employee would not see the dropdown menu because her 23 minutes of work time was rounded to 30 minutes of work time.

Expert Testimony

Donohue argued that rounding time spent in meal periods deprived her of overtime wages required by California law. She brought her claim as a class action on behalf of all nurse recruiters who were employed during the relevant time period.

Donohue supported her claim with the declaration of a statistics professor. The professor examined AMN’s payroll records and determined the overtime wages that class members would have received if their short meal periods had not been rounded up to 30 minutes. The professor concluded that employees were denied overtime wages for 40,110 lunches in which they took a break for less than 30 minutes.

California law also entitles employees to an additional hour of pay if a full meal period is not provided within the first five hours of a shift. The professor concluded that class members suffered 6,651 delayed lunches. He determined that lost wages from overtime plus the penalty for lost and delayed lunches totaled about $802,000.

AMN countered with a declaration from its own expert witness, a statistician who was also a labor economist. The expert opined that employees are paid for their full time because AMN sometimes rounds up and sometimes rounds down. Employees might therefore be paid for minutes they didn’t work in some weeks and not paid for minutes they worked in other weeks. The expert determined that the rounding of meal periods evens out over time, so employees do not lose pay in the long run.

Supreme Court Analysis

The trial court granted summary judgment to AMN. The court noted that employers are generally permitted to round time shown on time records for a workday if they do so in a way that does not consistently favor the employer. The court saw no reason why that rule shouldn’t apply to meal periods. The court also accepted the opinion of AMN’s expert that the rounding policy fairly compensates employees over time.

The California Supreme Court reversed the summary judgment. It concluded that AMN’s expert did not prove that AMN complied with the law. The expert analysis assumed that rounding rules applicable to time worked in a workday are also applicable to meal breaks.

Rounding rules governing a workday are generally focused on assuring that employers do not cheat their employees out of overtime compensation. The California Supreme Court viewed California’s meal break rule as serving a broader purpose. California law protects an employee’s right to take a full 30-minute break. That right is in addition to the right to be paid for hours actually worked.

Requiring employers to provide a 30-minute break protects the health of employees. Denying breaks increases an employee’s stress and fatigue, making workplace accidents more likely. Cutting a break short also diminishes the employee’s opportunity to eat a full meal or finish errands during a break period.

The court decided that a law guaranteeing a break of “not less than 30 minutes” per workday was inconsistent with rounding break time down to less than 30 minutes. Treating a 24-minute break as if it were a 30-minute break cheats the employee out of the benefits of a full break even if the rounding rules do not necessarily cheat the employee out of compensation over the course of a full week. Rounding thus excuses employers from their obligation to provide full 30-minute breaks.

In the court’s view, “rounding is inappropriate in the meal period context.” When employees are working for a few minutes during their 30-minute meal break, they are entitled to be compensated for those few minutes, including the penalty that California imposes on employers who do not give employees the full 30-minute break.

Since AMN’s expert based his opinion on an incorrect view of the law, the trial court erred by basing summary judgment on the expert’s declaration. The court remanded the case so that each party could file new summary judgment motions based on the supreme court’s new interpretation of California law.

 

New Mexico Justice

New Mexico Court Rules that Experts May Not Testify About a Defendant’s Intent

The New Mexico Supreme Court recently weighed in on an issue that will continue to be raised as scientists gain new knowledge about the impact of genetics on self-control. In State v. Yepez, the court held that a particular genome associated with violent behavior in victims of an abusive childhood cannot be the subject of expert testimony about a defendant’s intent to commit a violent crime.

Criminal Responsibility

An ongoing controversy in criminal law hinges on science and philosophy as much as precedent. When should individuals be held responsible for their misconduct?

Traditionally, convictions of serious crimes require proof that the accused offender intended to commit the crime. If the accused caused an accidental result and did not behave recklessly, the accused should not usually face serious punishment.

When it is clear that the offender caused harm that was not accidental, courts generally recognize only a state’s version of the “insanity” defense as negating intent. “Insanity” is an antiquated term that mental health experts have largely abandoned. While states formulate the defense in different ways, one version of the defense places the burden on the offender to prove that a mental disease or defect prevented the offender from conforming his or her conduct to the law.

Another version requires the offender to prove that, because of a mental disease or defect, he or she was incapable of appreciating the difference between lawful and unlawful conduct (or more fundamentally, the moral difference between “right and wrong”). Jurisdictions that have adopted that version of the defense do not allow experts to opine that an offender was incapable of controlling his actions, because lack of volitional control is not relevant to the defense.

The “insanity defense” has long been criticized as being divorced from medical science. Psychiatrists and other expert witnesses have difficulty applying a legal standard that is at odds with a medical understanding of mental health and volitional control.

Tradition has governed, in part because members of society tend to express outrage that an offender has “gotten away with” a crime when the offender is found not guilty due to a mental disease. The defense is rarely used and even more rarely successful. A few states have abolished it; in others, it is severely limited. But questions remain about the morality of holding people accountable for behavior that they cannot control.

Competing Views of Free Will

An ongoing debate in science and philosophy involves the degree to which individuals have any control over their actions at all. The debate between free will and determinism “is among philosophy’s oldest controversies.”

Some neuroscientists argue that free will may be an illusion. They suggest that we engage in an action, that our brain perceives the action, and that our brain convinces us that we willed the action to occur.

The notion that choice is not a matter of volition divides neuroscientists. Scientific studies approach the question indirectly and their results are open to interpretation.

Self-Control and Criminal Justice

Free will is the foundation for the criminal justice system. Criminal law assumes an individual’s ability to control his or her behavior. Criminal punishment (at least for serious crimes) is based on a volitional choice to disobey the law. If, in fact, offenders have no choice, punishment is based on a false premise.

There is room for middle ground in the debate between free will and determinism. It is possible that people generally have free will, but that some people, under some circumstances, are unable to exercise it. If, through no fault of your own, you are incapable of controlling your actions, whether you have free will is academic.

When intent is an element that must be proved to obtain a conviction, one might expect defense lawyers to call expert witnesses to prove that their client was incapable of choosing to break the law because the client was powerless to control his or her behavior. Courts have historically shut the door to that argument, in part because they do not want to undermine the rationale for criminal punishment. Apart from the insanity defense or its cousin, diminished capacity, the claim that “I couldn’t control my actions” is usually unavailable as a defense to criminal culpability, even if it happens to be true.

Expert Opinion in Yepez

Anthony Yepez killed George Ortiz during an argument, then set fire to Ortiz’s body. Yepez was charged with murder and tampering with evidence, among other crimes.

Yepez sought to admit evidence that he had “experienced maltreatment in childhood.” Yepez also wanted to admit expert evidence that he has “a genotype that confers low levels of monoamine oxidase A (MAOA) activity.” MAOA is an enzyme that affects the metabolism of neurotransmitters in the brain. According to Yepez’s experts, low levels of MAOA activity, combined with childhood maltreatment, produce maladaptive or violent behavior.

Yepez essentially hoped to defend the case with evidence that he was “born violent” and could not overcome traits that were part of his genetic makeup. He argued that the testimony was relevant because the condition caused him to kill without forming an intent to kill. He identified a neuropsychologist, James S. Walker, and a geneticist, David A. Lightfoot, as expert witnesses.

Daubert Hearing

The prosecution argued that the proposed testimony was not relevant. It also argued that the expert opinions were insufficiently reliable to be admissible under New Mexico’s version of the Daubert test.

Walker testified at the Daubert hearing, as did two psychologists. All three experts based their opinions on research demonstrating “a relationship between childhood maltreatment combined with low MAOA activity and predisposition to antisocial aggressive behavior.” The research included a study of Brunner Syndrome (a condition that associates complete deficiency of MAOA with aggressive behavior) and a study by Avshalom Caspi and his colleagues in 2002.

The Caspi study attempted “to determine why some children who are maltreated grow up to develop antisocial behavior, whereas others do not.” The study found that MAOA moderates the effects of maltreatment. Maltreated children who have a genotype conferring high levels of MAOA are less likely to become antisocial than children with a genotype that confers low levels of MAOA.

Many studies have replicated the Caspi study’s findings but some have not. A meta-analysis of peer-reviewed studies found a “moderately reliable” interaction between certain environmental risk factors (including abuse during childhood) and levels of MAOA.

Based on Lightfoot’s testing, Walker testified that Yepez’s genotype produces extremely low levels of MAOA, although he could not be sure whether Yepez suffered from Brunner Syndrome. Walker also testified that Yepez’s “history of childhood abuse and … this low MAOA activity gene made him exceptionally predisposed to committing violent behavior.”

Daubert Analysis

Rather confusingly, the trial judge first said “the Daubert factors are met,” then questioned the reliability of the defense evidence. The court said: “I’m really kind of iffy on whether — whether we’ve satisfied — whether it’s a scientific technique that’s reliable enough to prove what it [purports] to prove.” The court also noted that the defense relied on a thirty-year longitudinal study that the court deemed “inconclusive.” The judge observed that there is still “work to be done.”

The trial court ultimately excluded the expert testimony because Lightfoot’s testing could not determine a precise level of MAOA that Yepez’s genotype produced. The judge then faulted the defense for not calling Lightfoot as a witness at the Daubert hearing.

The defense moved for reconsideration, pointing out that New Mexico law allowed its experts to base their opinions on Lightfoot’s report without having Lightfoot testify. Those experts interpreted the facts cited in Lightfoot’s report as consistent with a genotype that produces very low levels of MAOA. The defense also provided an affidavit from Lightfoot that confirmed that interpretation.

The judge accepted the new information but shifted his reasoning. The judge decided that a propensity to behave violently is insufficient to establish New Mexico’s insanity defense — a defense that Yepez did not raise. The judge then decided that people with a propensity to violence can still form an intent to kill and that propensities do not, by themselves, negate intent.

Finally, the judge concluded that studies of low levels of MAOA combined with childhood maltreatment document “increased outcomes of aggressive and antisocial behavior — not impulsive behavior or impulsive violence as such.” The judge thus engaged in hair splitting to distinguish aggressive behavior from impulsively violent behavior, notwithstanding that impulsively violent behavior is by definition aggressive.

Appellate Opinion

The New Mexico Supreme Court agreed that “since Yepez has a low-activity MAOA genotype, not a no-activity MAOA genotype, Walker’s testimony that Yepez is predisposed to impulsive violence was not based on reliable scientific knowledge.” The court agreed that the studies “identified outcomes of antisocial behavior, generally” rather than violence, specifically.

The court was apparently unimpressed by a study finding that low MAOA activity and childhood maltreatment “predict[ed] outcomes … of … both violent and non-violent antisocial behaviors.” The study authors noted that “the low-activity MAOA genotype heightens maltreatment-dependent risk for a range of conduct problems and not aggression or criminal violence specifically,” but that observation means that violence and aggression are not the only outcomes of low levels of MAOA. Both courts were stretching the evidence to conclude that low levels of MAOA do not cause violence.

The court also noted a conflict in the underlying studies about the impact of low levels of MAOA on impulse control. Yet the experts were entitled to rely on studies suggesting that low levels of MAOA diminish impulse control, and the experts are in a better position than judges to evaluate scientific studies. The supreme court essentially cherry-picked the studies underlying the expert testimony to produce the result it wanted.

The court was on firmer ground in concluding that low levels of MAOA do not inevitably produce impulsive violence. Perhaps Yepez killed because he could not control his impulses, or perhaps he formed an intent to kill. The science at this point is incapable of distinguishing between acts caused by an impulsive predisposition and acts taken with intent.

At best, the science can tell us about behaviors that are more common in groups of people who share genomes and childhood experiences. That information doesn’t tell us whether specific individuals within the group are more likely to behave violently. But a defendant only needs to create reasonable doubt about his intent. Whether the science is sufficient to create a reasonable doubt about a defendant’s intent might be a question best left for the jury to decide.

Lessons Learned

In the end, the court decided that the “mere genetic susceptibility to a given mental condition is not relevant on the issue of deliberate intent, at least in the absence of evidence that such susceptibility is so well understood and has such strong predictive value as to be clinically validated as an indicator of the mental condition.”

As science advances, it may be possible for an expert witness to testify with certainty that a person’s genetic makeup makes it more likely than not that an individual with a particular genome and a particular set of life experiences will engage in impulsive, uncontrollable acts of violence. If that happens, will courts admit expert testimony that a defendant could not form the requisite criminal intent?

In the interest of fairness, they should. Given the judicial tendency to hold people accountable for their behavior regardless of scientific debate about free will, gaining the admissibility of expert evidence about intent will continue to be an uphill battle.

A judge

Colorado AG Warns Requiring Experts to Testify Could Prevent Reporting

The Colorado Attorney General has warned that requiring a state agency to testify as experts in a criminal case may have an adverse effect on its ability to gather important information.

The Avalanche

On March 25, 2020, an avalanche buried a service road above the west portal of the Johnson Eisenhower Memorial Tunnels near Denver, Colorado.The avalanche deposited as much as 20 feet of debris on the road and destroyed an avalanche mitigation device.

After the avalanche, snowboarder Evan Hannibal handed over his helmet video to the Colorado Avalanche Information Center. The video shot the avalanche that triggered below his snowboard. Hannibal hoped that the video and his first-person account would help to educate other skiers and snowboarders.

The Colorado Avalanche Information Center is a program within the Colorado Department of Natural Resources that provides avalanche information and education. This agency produces weather and backcountry avalanche forecasts. The Colorado Avalanche Information Center relies upon people who cause avalanches to report information for its investigations and reports.

The Criminal Case

Summit County prosecutors used Hannibal’s video to file a criminal case against him and his backcountry partner Tyler DeWitt, seeking restitution for the avalanche mitigation device. The snowboarders face charges of reckless endangerment and restitution of $168,000.

The county filed a motion announcing that it intended to call Colorado Avalanche Information Center Director Ethan Greene to testify as its expert witness at trial.

Hannibal and DeWitt have opposed the introduction of the video evidence and the use of the avalanche center’s director as an expert, arguing that the charges against them could cause other backcountry travelers to stop sharing information with the avalanche center and its investigators.

Colorado Attorney General Phil Weiser, acting as attorney for the state’s avalanche center, agreed with Hannibal and DeWitt. Weiser’s office filed motions to quash subpoenas requiring Greene and avalanche center forecaster Jason Konisberg to testify as experts at the trial of Hannibal and DeWitt.

Weiser argued that the county’s plan to call avalanche center employees as experts “could have an unintended adverse ‘chilling’ impact on the CAIC’s ability to gather important information.”

Weiser’s motion states, “There is genuine concern by CAIC that if CAIC employees appear as an expert witness in a criminal matter it could adversely impact their ability to gather relevant information from persons involved in an avalanche. . . . The more involved CAIC is in this criminal matter, the more it looks like they are working in coordination with law enforcement, rather than in cooperation with local law enforcement, resulting in a chilling effect to the detriment of CAIC’s mission.”

Weiser also argued that requiring the state avalanche center employees to testify for two days is “unduly burdensome, unreasonable and oppressive.” He argued, “To command that Mr. Greene step away from his diverse responsibilities, during the CAIC’s busiest month of the winter season, is unreasonable and impactful to the important work of this agency generally and Mr. Greene specifically.”

Criminal Forensics, word cloud concept 11

Forensic Doctor Testifies That Flawed Evidence Led to Capital Murder Conviction

A forensic doctor has testified that the science used in the capital murder conviction of Robert Leslie Roberson III was flawed.

The Death

In February 2002, two-year-old Nikki Curtis was taken to a Dallas hospital. She died of blunt force injuries to the head.

Curtis’ father, Robert Leslie Roberson III, said that she died after landing on her head during a fall from her bed. Prosecutors theorized that Roberson instead shook his daughter so hard that she slipped into a coma and then left her on her bed for hours. Roberson was charged with capital murder in connection with his daughter’s death.

The Trial

In February 2003, a twelve-person jury found Roberson guilty of murder and sentenced him to die by lethal injection.

In 2007, Roberson appealed to the Court of Criminal Appeals, but each of his 13 claims of error was rejected.

New Expert Testimony

In June 2016, the Texas Court of Criminal Appeals stayed his June 21, 2016 execution and sent the case back to trial court to consider four different claims, including the claim that “junk science” was introduced at Roberson’s original trial.

An evidentiary hearing initially began in August 2018 but was continued after a district clerk found 15-year-old evidence, including lost CAT scans. The hearing was delayed to give the prosecutors and defense teams time to review the evidence and develop expert witnesses.

Roberson’s legal team retained Dr. Janice Ophaven, a forensic pathologist with expertise in pediatric deaths. Dr. Ophaveen has been practicing since 1971. Judge Deborah Evans certified Dr. Ophaven as an expert in pediatric forensic pathology.

Ophaven explained that Curtis had “died because her brain died from cranial pressure that created a lack of oxygen and blood to the brain.” She testified that homicide could not be concluded from a post mortem exam, but said that it was “[h]ard for pathologists to be objective because they rely on law enforcement and, in some cases, law enforcement gives them information to get a confession.”

Openhaven testified,

Science does not tell us what happened to Nikki. . . . At the time of trial in 2003 it was believed a short fall could not create death, that is no longer the science. Shaken baby does not apply to children of Nikki’s age. Blunt force trauma absolutely can cause the type of injury Nikki had. In this case lack of oxygen to brain cells caused fluid to exit out of the cells and that fluid continued to build and created a sequence of events that caused her death. At the time of trial, the science was that blood in the eyes was a sign of shaken baby. It is no longer the science.

This is just another in the series of cases where experts are questioning the legitimacy of shaken baby convictions. For more ExpertPages coverage on this issue, see “Rising Trend of Experts Questioning Legitimacy of Shaken Baby Convictions” and “Woman Allowed to Present Expert Testimony to Overturn Shaken Baby Conviction.”

Police Expert Witness

Experts Examine Cause of Tiger Woods’ Crash

Forensic car accident experts have offered theories on how the recent car crash involving famed golfer Tiger Woods took place.

The Accident

Tiger Woods, 45, was traveling north outside of Los Angeles when his 2021 Genesis SV80 SUV left its lane, crossed the median into the southbound lane, went off the road, hit a tree, then rolled over. Woods broke multiple bones in his right lower leg and his car sustained major frontal damage. He was alone at the time of the incident.

The Experts

Jonathan Cherney, a former police detective who provides car accident analysis as an expert witness in car cases, examined the Woods’ crash site in person. Cherney told USA Today Sports that, “To me, this is like a classic case of falling asleep behind the wheel, because the road curves and his vehicle goes straight.” Cherney continued, “It’s a drift off the road, almost like he was either unconscious, suffering from a medical episode or fell asleep and didn’t wake up until he was off the road and that’s where the brake application came in.”

Los Angeles County Sheriff Alex Villanueva said that there were no skid marks on the road to indicate braking. He said that he didn’t know the vehicle’s speed yet, but it may have been a factor. Inattentiveness may have also been a factor. Villanueva said, “This stretch of road is challenging, and if you’re not paying attention, you can see what happens.” He noted that the crash was “purely an accident” and that there was no evidence of impairment or medication. Woods was “lucid” at the time a sheriff’s deputy arrived at the scene.

Felix Lee, an accident reconstruction expert, noted that Woods’ vehicle did have anti-lock brakes, so “you wouldn’t necessarily see tire marks” at the crash scene even if Woods did slam on the brakes. Lee also noted that the vehicle did not change direction when it entered the curve. Lee opined, “My feeling is that speed wasn’t that much of an issue… It was just some kind of inattention that caused the curb strike.”

Rami Hashish, a principal at the National Biomechanics Institute, a company that analyzes the cause of accidents, said that the fact that Woods’ vehicle went about 400 feet before stopping without evidence of steering input suggests a “very delayed response” or that Woods was not paying attention at all. Hashish noted that Woods’ injuries would have been greater if he had been traveling at excessive speed. The speed limit at the site of the crash was 45 mph. Hashish said, “You can walk away with a broken leg from 45 to 50 mph… If you’re hitting 60, 65 and you’re hitting a stationary object, your likelihood of death increases exponentially.” If he was going 80 mph, “he wouldn’t be having an open fracture in this leg, he’d be dead.”

The LA Sheriff’s Department has said, “The traffic collision investigation is ongoing, and traffic investigators have not made any conclusions as to the cause of the collision.”