Category Archives: General

Medical Expert Witnesses Duel in Child Abuse Murder Trial

Expert witnesses in child injury and abuse disagreed with each other on the stand this week as both prosecutors and defense lawyers relied on medical experts in the murder trial of a Madison, Wisconsin man accused of killing his girlfriend’s 5-year-old son.  During the course of this week’s testimony, expert witnesses dueled on the nature of the child’s injuries and the cause of his tragic death.

Wisconsin Man Charged with Killing 5-year-old

Dakota Black, 25, has been charged with first degree reckless homicide in the death of 5-year-old Brayden Turnbill who died from severe brain injury.  According to prosecutors Black was responsible for watching Turnbill, his girlfriend’s son, when the child came home from school, during which time he fatally abused the boy.  Turnbill was found unconscious by his mother when she returned from work, and was unresponsive to efforts to revive him.  He died in the hospital three days later.

After investigating the incident and talking to the medical examiner, prosecutors formally charged Black alleging that he abused the child so severely that Turnbill suffered fatal brain injuries.  In order to support their contention that Turnbill’s injuries were caused by physical abuse by Black instead of an accidental fall as the defendant claimed, prosecutors called a variety of medical expert witnesses who alleged the boy’s injuries were the result of child abuse.

Prosecution Expert Witnesses Testify to Signs of Child Abuse

Early in the Dakota Black homicide trial, prosecutors called to the stand medical examiner Kristin Roman who was responsible for examining Brayden’s body after his death.  According to Dr. Roman, the contusions suffered by the child were not suggestive of an accidental fall, but instead were consistent with signs of child abuse.  Dr. Roman told jurors that Brayden Turnbill died of blunt force trauma that was not accidentally caused.

The next medical expert witness to testify for the prosecution was Dr. Barbara Knox of the American Family Children’s Hospital Child Protection Program who testified that Brayden was likely unconscious at the time of his injuries and did not have a period of awareness between the time his head trauma occurred and his injury.  Dr. Knox, who was present for surgery that attempted to save Brayden’s life, told jurors that the nature of his injuries suggested the brain damage occurred immediately after he suffered a physical blow to the head.  The timing of Brayden’s injuries is critical because defense attorneys for Black allege that the boy could have suffered the trauma at any time – including the period before Black had sole responsibility for watching him.  In response to questioning about the possibility that Brayden’s injuries could have happened before a traumatic event, Dr. Knox held firm and reiterated that in her expert medical opinion the nature of the boy’s injuries precluded a lucid interval between the blunt force and his brain damage.

Finally, prosecutors called to the stand Dr. Wilbur Smith, a pediatric radiologist who is an expert in blunt force trauma.  Dr. Smith, who has testified as an expert witness in over 100 child abuse trials across the country, told jurors, “This was a very major injury, so it would have taken a lot of force to cause this injury.”  Going further, Dr. Smith said that it was highly unlikely that the force required to cause Brayden’s injuries was accidental because it was so severe.

After the prosecution closed its expert witness heavy case, defense attorneys for Dakota Black mounted a response with an expert witness to counter the assertion that Braydon’s injuries were definitely caused by child abuse.

Defense Uses Expert Witness to Counter Claims of Child Abuse

Defense attorneys for Dakota Black began their case by calling Dr. John Plunkett to the stand to counter prosecution experts who told jurors it was highly unlikely that Brayden Turnbill’s injuries were accidental.   Dr. Plunkett, an experienced expert witness in the field of forensic pathology who has testified in more than 150 trials, told jurors that Brayden could have died from an accidental fall and questioned the validity of the prosecution experts’ conclusions.

Dr. Plunkett directly contradicted testimony from Dr. Knox and told jurors that it was possible Brayden experienced a lucid interval between the trauma that caused his injury and the severe brain damage that he suffered.  Under Plunkett’s theory, Brayden could have been injured at any time – even the time before Black had sole responsibility for the boy’s care.  Dr. Plunkett further testified that the boy could have had a latent injury in his brain that was aggravated by significantly less force than other expert witnesses said was required for Braydon’s fatal injury.  Although Dr. Plunkett did not hypothesize about a cause of death, he told jurors that it was reasonable to doubt conclusions that Braydon Turnbill died of intentionally caused blunt force trauma.

Pediatric Expert Witness Testifies in Texas Child Burn Trial

An expert in pediatric care testified this week in a trial of a 26-year-old Texas man charged with intentionally exposing his infant son to scalding hot water.  Prosecutors called the expert pediatrician to the stand to help prove that the child’s injuries were not accidental, but the result of an intentional abusive act.

Texas Man Charged with Bathing Child in Scalding Water

Efe Omo Idehen, 26, of Abilene, Texas is on trial for child abuse for allegedly exposing his then 11-month-old son a bath with scalding hot water three years ago.  According to prosecutors the defendant was well aware that the water temperature was dangerously hot for an infant, but put his child in the tub anyway because he was frustrated with the crying and the fact that he had to pay child support.  Idehen admitted during the investigation that the boy was crying while he was in the tub, but told police that he did not realize the full extent of the damage until he took the baby out of the water after several minutes.  The child has since received several surgeries and skin grafts to repair the severe burns, but has recovered from the injuries caused by being exposed to scalding hot water.

Prosecutors offered a plea agreement for 50-years in prison, but Idehen rejected the deal and instead asked the court for probation.  With the defendant’s counter-offer unacceptable, prosecutors started trial this week by presenting police and medical reports along with gruesome pictures of the scene of the incident and the infant’s injuries.  To bolster their contention that Idehen was fully aware of his actions prosecutors added testimony from a pediatric medicine expert witness who explained to jurors that the injuries were consistent with signs of child abuse.

Pediatric Expert Witness Testifies in Infant Burn Trial

Prosecutors in Abilene, Texas called a pediatrician with a specialty in child abuse to the stand to tell jurors that injuries to an 11-month-old infant were consistent with signs of abuse.  According to the expert, the pattern of burns on the baby’s legs were symmetrical, which suggests a deliberate action of putting the child in the water and holding him there.  The expert told jurors that had the baby been accidentally exposed to the scalding water then he would likely have had asymmetrical burn patterns which would be consistent with a fall or some other accidental entry.

The child abuse expert also pointed out that the infant did not suffer any splash marks, further suggesting a slow and deliberate placement in the water rather than a quick and unanticipated event.  During testimony, jurors also heard that the presence of a water line on the child’s skin indicated that his exposure to the scalding hot tub was not accidental, but intentional and part of a controlled action.  Finally, the prosecution’s pediatric expert witness told the jury that he had examined the now-toddler just before the trial began and saw skin grafts that indicated the burns were severe, deep, and damaging to the underlying tissue in the infant’s legs and feet.

Attorneys for Idehen have not revealed their plan for defense, but will likely focus their efforts on arguing their client was not fully aware of the harm he was causing until it was too late.  Idehen testified that it was common for his son to cry, so when he cried in the tub it did not indicate to the defendant that something was seriously wrong.  Idehen has not revealed whether or not he will take the stand in his own defense, but prosecutors will likely conclude their case in the next couple days which will give the defense an opportunity to present a case later this week.

Expert Witness Will Be Allowed to Explain Alleged Victim’s Recantation

Expert witnesses are commonly called by both the prosecution and defense to testify concerning accusations that a defendant sexually assaulted a child. Defense experts usually explain why children are susceptible to influence that may cause them to believe that false accusations of sexual assault are actually true. Prosecution witnesses include medical experts who testify that certain injuries are consistent with sexual abuse, as well as experts in child psychology who explain why children delay reporting incidents of sexual abuse.

A federal prosecutor in a Pennsylvania trial wants to have an expert explain why children might make truthful accusations of abuse and later recant them. The defense unsuccessfully objected that the expert, who has never interviewed the alleged victims, should not be allowed to testify.

Allegations in the Maurizio prosecution

Although sex offenses are typically state crimes rather than federal offenses, Rev. Joseph Maurizio, a former priest at Our Lady Queen of Angels Parish in Central City, Pennsylvania, has been charged with eight federal crimes concerning the alleged abuse of children in Central America. The crimes include traveling to a foreign country to engage in illicit sexual contact with a minor, possession of child pornography, and transporting money out of the country for an illegal purpose.

Father Maurizio allegedly had illicit contact with minors over a ten year period during his visits to orphanages in several Central American countries. The indictment focuses on a six year period during which Father Maurizio visited an orphanage in Honduras. Alleged victims reportedly told Homeland Security agents that Father Maurizio had sexual contact with minors, offered them money or candy for sexual favors, and attempted to take nude photographs of them. Father Maurizio was relieved of his duties in September 2014, after federal agents seized computers and electronic storage devices from his parish home and chapel.

The Child Sexual Abuse Accommodation Syndrome controversy

The prosecution proposes to call a clinical psychologist, Veronique Valliere, as an expert witness. Although federal procedural rules require the nature of proposed expert testimony to be disclosed in advance of trial, there is some dispute as to exactly what Valliere will say if she testifies.

According to the defense, Valliere is expected to testify about the Child Sexual Abuse Accommodation Syndrome (CSAAS). That controversial syndrome, developed to account for the behaviors of sexually abused children, purports to explain why abuse victims delay reporting or fail to report incidents of sexual abuse and why they retract truthful accusations.

Critics of CSAAS argue that the syndrome is meaningless because it suggests that reporting, failing to report, and denying sexual abuse are all evidence of sexual abuse. Critics suggest that CSAAS ignores the possibility that a child delayed reporting abuse, denied abuse, or recanted a past allegation of abuse because the abuse never happened. Advocates of CSAAS, on the other hand, argue that the syndrome provides a scientifically valid explanation of the behaviors of child sexual assault victims.

Court decisions concerning the admissibility of CSAAS have been mixed. Whether they apply the Frye or the Daubert standard for the admissibility of expert testimony, most courts have guardedly permitted experts to base testimony about the reaction of children to sexual abuse on CSAAS research, at least when the defense relies upon delayed reporting or recantation to attack the accuser’s credibility. Courts generally conclude that the testimony is helpful since most jurors do not have firsthand experience upon which to base judgments about how children react to sexual abuse.

At the same time, courts generally hold that experts cannot themselves assess the credibility of alleged abuse victims, since that assessment can only be made by a jury. Some courts instruct jurors that testimony about CSAAS is being admitted solely to show that a victim’s recantations are not necessarily inconsistent with having been molested, not as proof that the recantation is truthful.

A minority of courts have concluded that CSAAS is not generally accepted by the scientific community and that CSAAS is therefore inadmissible, or that that testimony based on CSAAS creates an unacceptable risk that jurors will view the expert testimony as evidence that abuse actually occurred. As the Iowa Court of Appeals noted, there is “a very thin line” between an admissible expert opinion that helps a jury evaluate a child’s testimony and an inadmissible expert opinion that the jury will take as substantive proof of a defendant’s guilt.

The prosecution’s response

The prosecution in Father Maurizio’s case wants Valliere to testify in its case-and-chief, not as a rebuttal witness to rehabilitate any child witnesses who recant. The defense argued that the prosecution’s tactic amounts to using CSAAS evidence as proof of the defendant’s guilt.

The prosecution denies that Valliere will testify about CSAAS. The defense suggested that Valliere will rely on CSAAS even if she does not identify the syndrome by name. The defense also argued that Valliere has never interviewed the children and that no studies have validated CSAAS in children from Honduras, who may (for cultural reasons) respond to sexual abuse in ways that differ from American children.

The court denied a defense motion to exclude Valliere’s expert testimony. Father Maurizio’s trial is scheduled to begin in September. It is expected to last three weeks. The defense may decide to call its own expert to counter Valliere’s testimony.

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.

 

An Expert’s Take on Counterfeit Coins

The concept of money has been used for many thousands of years. In ancient China, shells were accepted as currency. Some 5,000 years ago, Mesopotamians had a rudimentary banking system where people could “deposit” grains, livestock and personal valuables, for both safe keeping and trade.

The first coins, as we know them today, first appeared about 600 B.C. in Lydia, a kingdom in ancient Greece and now part of modern day Turkey. They featured the stylized head of a lion and were made of electrum, a natural alloy of gold and silver. This led to expanding trade networks with relative ease.

The inauguration of coins had an important impact on society. Within a few decades, the countries and city-states in the Mediterranean, mostly adopted the Lydian experience. Now, coins were made of either gold or silver. In short order, Athens, Aegina, Corinth and Persia developed their own uniquely designed coins. Often designs reflected religious, cultural values, heroes and animals that were important to the local culture. Eventually, especially in Europe, standardization of weights and measures of different monetary systems, were now formalized.

There is a standard joke concerning coins. The day after coins were invented, counterfeiting began. Why work for a living? Just duplicate what governments were doing and get rich quickly. When counterfeiters were caught, sovereign governments treated them very harshly. There are known instances where the hands of counterfeiters were cut off – clearly a warning to others who might be considering that line of work.

Black Sea Counterfeit Coins

The threat of counterfeit ancient coins on a large scale is an on-going concern to both dealers and collectors. A disproportionate number have been found at the Black Sea. In late 2003 and early 2004, a hoard was supposedly unearthed in the modern day nation of Bulgaria.  There were approximately 300 coins. They were offered to a very reliable dealer of unquestionable integrity. He then purchased them from one of the major U.S. coin companies. What must be emphasized repeatedly is that every dealer that was involved in the dispersal of this hoard has the highest standards of ethics and professionalism in the profession. Yet, all were deceived.

Initially, because of the variety of dies, the metal quality and surfaces, no one had any doubts that this hoard was real. The hoard was recently dug up out of the soil. This led to the conclusion there was no doubt about the “realism” of these coins. Once the surface dirt was removed, there was no doubt to the authenticity. However, in a few days, phone calls from Europe indicated that there were questions regarding the authenticity of the hoard. With the accumulation of information, the conclusion became crystal clear. Everyone involved with these coins were victims of a very clever, deceptive counterfeiting scheme.

Another example of a Black Sea hoard occurred in the early part of the 21st century. These fake coins were produced by casting. The initial process was followed by an additional electro galvanic silver plating for further surface shaping. When completed, an artificial patina was applied. It was very easy to be mislead if you looked at these fake coins without using a magnifying glass at least seven time magnification. The weight and appearance of these fakes were fairly exact copies of the genuine ones.

GREECE

In my family, a cousin decided to sell her aunt’s forty eight (48) “Ancient Greek” coins and I was tasked with the job. Over a three-month period, several different ancient coin specialists analyzed and examined the coins and in every case, deemed all forty-eight coins counterfeit. As the specialists explained, these modern fakes were made in local garages. The coins were put into polluted water for several months to give them an “aged” look. After removal, the coins were dried and sold to gullible tourists. My cousin was devastated when she learned that her aunt and uncle spent a considerable sum for modern fakes.

AMERICAN COUNTERFEIT GOLD COINS

In the October 10, 2010 edition of Coin World, there was a lengthy article concerning fake American gold coins. Here is what was disclosed: “Counterfeits are known for every regular issue United States gold coin from dollar through $20 double eagle.” The article further points out that the fakes have become more sophisticated. To this day, the major threat is the fabrication of American gold coins in China. Unfortunately, some have been sold on ebay.

CHINA FAKES

In the last few years, China has been producing a substantial number of fake American coins. In its January 2009 edition Coin World, had a comprehensive article about the enormity of this situation. “How deceptive are the Chinese made counterfeit coins entering the U.S. market via ebay?”

This is an on-going problem; producing American fake coins is legal in China as well as a sore point between the two countries. Not only are fake coins being produced in China, but also fake coin holders (known as “slabs”) and fake certification labels matching information found on proper labels.

Counterfeit US coins was also the subject of an August 28, 2009, the COIN DEALER newsletter page one article. It explained how American 19th century coins were reported by Chicago area dealer. The article concluded: “There is no single greater threat to the long term health of the hobby than an influx of counterfeit US coins entering into the marketplace.” Today’s technology can make counterfeiting lucrative.

COUNTERFEIT EUROS

Counterfeit coins are not only for coins made in yesteryear, but those minted today as well. Within the last year, the Independent carried the following headline: “Discovery of largest ever stash of fake Euro coins sparks fears the British two pound coin could be next”.  The article stated that the discovery of 500,000 Euros worth of fake Euro coins from China sparked concern that the British two pound coin could be also forged in China as well. One of the main concerns is that these fake coins are likely to be accepted in vending machines.

CONCLUSION

Caveat Emptor, Buyer Beware. Counterfeiting is a continuous and costly problem. Not only have coins been illegally reproduced, so has currency, furniture, sports cards, just to name a few.

A “Force Science” Expert Explains Why Police Shoot Unarmed Suspects

When police officers shoot an unarmed suspect, they often face state or federal charges for homicide or for violating civil rights by the use of excessive force. They are also exposed to civil liability in state or federal lawsuits. In all of those situations, the officers turn to expert witnesses to explain their actions to juries.

The New York Times recently explained how a psychologist can help police officers obtain favorable verdicts in civil and criminal trials. The article profiles William J. Lewinsky, a former psychology professor who has provided expert assistance in two hundred police shooting cases in the last ten years. The Times calls Lewinsky “one of the most influential voices” in the psychology of police shootings. Critics ask whether his testimony is based on valid research or “junk science.”

An Advocate for Police Officers

According to the Times, Lewinsky’s testimony consistently justifies police shootings, even when the officer’s version of the shooting is contradicted by video evidence, physical evidence of how the shooting occurred, and witness testimony. Even when the shooting victim was unarmed or shot in the back, Lewinsky’s testimony exonerates the officer.

Lewinsky’s company, the Force Science Institute, trains officers that it is reasonable to shoot suspects who engage in ambiguous conduct that could be perceived as threatening. That training is based on Lewinsky’s controversial research, which concludes that officers who wait to see a weapon before shooting a suspect are putting their lives at risk.

For example, a Portland trial in which Lewinsky testified involved a police officer who stopped a driver for a red light violation. The driver put his hand in his pocket. The officer told the driver to take his hand out of the pocket and then shot the driver when the driver started to obey that command. The driver was unarmed. Lewinsky testified that the officer behaved appropriately.

Lewinsky’s advice to police officers opposes the modern trend to develop clear use-of-force guidelines that require officers to follow a “continuum” that allows the use of deadly force only as a last resort. A typical continuum approach instructs police officers to begin interactions with verbal commands. When those commands are resisted, officers are permitted to use appropriate physical force (perhaps including chemical sprays), escalating to nonlethal incapacitating force (such as a Taser) when resistance becomes aggressive. Officers are typically trained to assess threats before they respond and to use deadly force only to overcome a deadly threat.

Force Science vs. Junk Science

Lewinsky bases his opinions on the study of “force science,” a field he largely invented. His maverick approach is consistent with his educational background. He designed his own doctorate in a field he calls “police psychology.” The police psychology doctorate, awarded by an alternative university, is not available elsewhere.

Lewinsky defines force science as “the research and application of unbiased scientific principles and processes to determine the true nature of human behavior in high stress and deadly force encounters.” The gist of his research is that suspects can pull and fire guns very quickly. His conclusion is that officers can only protect themselves by shooting when they suspect a gun is about to be pulled, even if they have not actually seen one.

Critics suggest that Lewinsky’s theory puts the lives of police officers (who are paid to take risks) ahead of the lives of innocent victims who have done nothing to endanger the officers. An editor of The American Journal of Psychology calls Lewinsky’s research “pseudoscience” while the Justice Department says that Lewinsky’s findings are unreliable. Yet, as Lewinsky points out, the Justice Department also paid him $55,000 to testify on behalf of a federal drug agent who killed an unarmed 18-year-old.

Lewinsky’s credentials stress that he has spoken at “peer reviewed” conferences and mention that his research is published in law enforcement journals, but Lewinsky does not specifically claim to have published peer-reviewed research. He has been criticized for relying on research findings that have not been reviewed by other scientists, for failing to conduct research using control groups, and for drawing conclusions that his data does not substantiate.

Lewinsky has also been criticized for basing testimony on his own assumptions about why police officers acted as they did, and for giving testimony that fails to account for the possibility that officers who describe a shooting are lying to protect themselves. None of that seems to matter to juries, which tend to side with the police officer when Lewinsky testifies.

Effective Testimony

According to the Times, Lewinsky is a popular expert — despite the $1,000 per hour he charges to testify — because he has the qualities that lawyers hope to find in an expert witness: he sticks to his guns, he is not easily rattled during aggressive cross-examination, he is “affable and confident,” he gains the trust of jurors by citing research findings, and he establishes a rapport with juries by sprinkling sports metaphors into his testimony. Shooting an unarmed person, he tells juries, is like swinging at a bad pitch.

Jurors in many jurisdictions are predisposed to view police officers as heroic and to view their self-protective actions as justified. Influenced by television shows and movies that portray police work as more dangerous than it really is, jurors are inclined to side with police officers when they use deadly force. As the Times points out, Lewinsky gives them a reason to do so.

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.

FBI Agent Allowed to Testify as Expert Regarding Cellphone Location

Can an FBI agent who has no engineering background provide expert testimony about a cellphone location? That was the central question posed to a Tennessee judge who is presiding in a Knox County murder case.

The Evidence Against Norman Clark

Norman Clark is charged with the first degree murder of his former girlfriend, Brittany Eldridge. He is also charged with causing the death of Eldridge’s fetus.

The evidence against Clark is circumstantial. Eldridge was stabbed to death with scissors. Police say that an impression in the blood on Eldridge’s shoulder matches the shape of an earring that Clark was wearing on the day after Eldridge was killed. Clark’s fingerprints were also found in Eldridge’s bedroom. Since Clark was Eldridge’s former boyfriend, however, the presence of his fingerprints adds little to the case. The police tested more than 20 DNA samples that were apparently recovered from the crime scene but none belonged to Clark.

The strongest evidence against Clark is the claim that his cellphone was pinged in the area of Eldridge’s apartment at the approximate time of her death. The tower that recorded the “ping” is near Eldridge’s apartment. The critical question is whether the same tower could have recorded the “ping” if Clark’s cellphone was in his own residence.

The Expert Opinions

The prosecution plans to call FBI Special Agent Kevin Horan as “an expert in cell phone tracking and analysis.” Horan is a part of the FBI’s Cellular Analysis and Survey Team. His duties include helping state and local police departments by mapping coverage areas. His analysis relies on the assumption that cellphones usually connect to the closest tower because the closest tower usually has the strongest signal. Horan’s opinions are largely based upon information provided by cellphone companies and industry engineers, but he does not have an engineering background.

Clark’s defense attorney challenged the admissibility of Horan’s expert opinion. At a pretrial hearing (known in Tennessee as a McDaniel hearing), the defense argued that Horan’s opinion is based on inaccurate data and an unreliable methodology. The defense, which contends that Clark’s cellphone could have been in his own home when it pinged the tower, relied on a former cell phone network engineer to challenge Horan’s expertise. The defense expert testified that “Horan’s understanding of the collected cell data was ‘painful’ and over-simplified.”

The McDaniel Decision

In its McDaniel decision, the Supreme Court of Tennessee concluded that a trial judge should not admit expert testimony unless:

  • the evidence will substantially assist the jury;
  • the underlying facts and data relied upon by the expert do not indicate “a lack of trustworthiness”;
  • the expert’s reasoning and methodology are valid and reliable; and
  • the expert’s reasoning and methodology were properly applied to the facts at issue.

The supreme court emphasized that the trial court’s job is to focus upon the reliability of the methodology rather than the reliability of the conclusions the expert has drawn. The latter determination is for the jury to make.

Prior to McDaniel, Tennessee followed the Frye standard, which rejects expert testimony unless it is “generally accepted” by the scientific community. The McDaniel decision adopted a modified version of the standard that the United States Supreme Court adopted in the Daubert decision.

While the McDaniel decision suggests that Daubert is a more relaxed standard than Frye in the sense that it should allow the admission of reliable expert testimony even if it relies on a methodology that has not been generally accepted, most commentators believe that Daubert is a more restrictive standard than Frye. The McDaniel decision made clear that judges in Tennessee, unlike federal judges, should generally trust juries to choose among competing scientific theories and to decide whether an expert’s conclusions are credible. The trial judge’s limited role is to assure that the expert’s opinions are based on a valid methodology rather than speculation.

The Trial Court’s Ruling

Given the emphasis that the McDaniel decision places on the jury’s role in deciding contested facts, it is unsurprising that the trial judge ruled that Horan’s testimony is admissible. It will be up to the jury to decide whether Horan’s conclusions are reliable after listening to his testimony and the testimony of any defense experts who challenge his methodology.

Even under the federal Daubert standard, the result may have been the same. A federal judge who considered a similar issue involving Horan’s testimony in a federal criminal trial concluded that Horan’s methods were sufficiently reliable to meet the Daubert standard, notwithstanding legitimate questions that the defense raised about limitations in his analysis. Those limitations, the judge opined, went to the weight the jury would give his testimony, not to its admissibility.

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.

Court Balks at Funding Expert for Defendant in Manslaughter Trial

An expert on drunkenness may be called as a witness in a Buffalo, New York manslaughter trial. The proposed expert would be basing his testimony on the science of neurology rather than personal experience. The question is whether the court will agree to fund the expert.

The manslaughter charge

Paul Flynn is charged in Niagra County Court with causing the death of Clyde Mullen. According to one witness, Flynn and Mullen were arguing over a can of beer when Flynn grabbed Mullen by the neck and threw him down a short flight of porch stairs. A different witness said that Flynn shoved Mullen and that Mullen then fell down the steps.

Mullen remained in intensive care for several days before he died. Flynn has denied choking Mullen and said that he never intended to hurt him.

The police originally arrested Flynn for assault. Flynn was charged with second degree murder after Mullen died, but the grand jury refused to indict Flynn for that offense. The grand jury instead indicted him on a charge of first-degree manslaughter.

Flynn’s trial is scheduled to begin in September.

The intoxication issue

When police questioned Flynn, he did not appear to be under the influence of alcohol. A test of Mullen’s blood revealed a blood alcohol concentration of 0.31, a level that would be close to lethal for someone who had not developed a strong tolerance of alcohol.

Flynn’s lawyer, Brian Hutchison, wants to hire a neurologist to testify about how high levels of alcohol “affect a person physically and psychologically.” Hutchison told the court that the impact of Mullen’s intoxication upon his behavior was a material issue in the case. His proposed expert, Dr. Francis Gengo, is a professor at the University at Buffalo.

Funding the expert

In some jurisdictions, whether an expert would be allowed to testify about the impact of alcohol on an alleged victim might be questionable. Some judges might conclude that the association between intoxication and behavior is common knowledge and that an expert would not be able to provide the jury with helpful information.

At least according to news coverage to date, the issue of the proposed expert testimony in Flynn’s case is not whether the testimony would be admissible but whether the court is willing to pay for it. Hutchison is court-appointed, presumably because Flynn is indigent. If he plans to hire an expert, he must obtain the court’s approval to pay for the expert.

Defendants who have the resources to hire their own experts have a significant advantage over defendants who must rely upon a public defender’s office or appointed counsel. A wealthy defendant can hire the best expert that he or she can afford. An indigent defendant must cope with limited state budgets and judges or administrators who are reluctant to spend taxpayer’s money to assure that indigent defendants benefit from the same expert testimony that more affluent defendants would have.

Most courts have agreed that the right of indigent defendants to hire necessary experts is assured by the Due Process Clause (which guarantees the right to a fair trial), the Equal Protection Clause (which guarantees that poverty should not deprive a defendant of a fair trial), or the Compulsory Process Clause (which guarantees the right to call witnesses who can provide exculpatory testimony). Yet the contours and limits of that right are often unclear.

When is a proposed expert too expensive?

Just as the right to be represented by a lawyer does not guarantee the right to be represented by the best or most expensive lawyer, the right to call expert witnesses does not assure that indigent defendants will receive funding for the best or most expensive experts. Although Flynn faces a potential 25 year prison sentence, the judge balked at paying for the services of Dr. Gengo.

The judge told Hutchison that New York law limits payment of expert witness fees to $1,000 unless there are “extraordinary circumstances.” While news reports do not say how much money Hutchison was seeking, they do quote the judge as complaining that Gengo “seems very expensive.” The judge is also quoted as asking “Why do you need the most expensive guy out there?” The judge reportedly told Hutchison to “see if he can hire someone who’s good enough for under $1,000” and, if not, to get started with Gengo for $1,000 and ask for more money later.

A thousand dollars seems like a paltry sum when a quarter century of a defendant’s life is at stake. Unfortunately, when state legislators set funding limits for experts, they rarely adjust them for inflation as the years go by. Whether Hutchison will be able to find a less expensive expert who is “good enough” for $1,000 or whether he will persuade the court that “extraordinary circumstances” justify spending more money remains to be seen.