Category Archives: General

Teaching Expert Witnesses to Testify

One of the greatest challenges that expert witnesses face is explaining technical concepts in simple language that lay jurors can understand. Experts who are used to discussing their work with professional colleagues assume a basic level of familiarity with the language of science that lay jurors lack. Frustrated lawyers who ask experts to “explain that in simpler language” are matched by frustrated experts who do not believe that simple language can convey complex ideas.

Understanding that experts have important information that the public needs to understand, the National Science Foundation recently awarded a $540,000 grant to the Expert Witness Training Academy, a project of William Mitchell College of Law in St. Paul, Minnesota. The funding to date has been used to train climate and atmospheric scientists. About two dozen scientists participate in the training each year.

Allowing experts to become comfortable with the difference between lecturing in a collegial atmosphere and testifying in an adversarial proceeding is one of the program’s goals. Even when speaking to the general public, however, the confrontational nature of climate change and its impact on public policy underlines the importance of teaching climate scientists how to communicate effectively. The Academy stresses that it does not teach scientists to be an advocate for any particular position, but focuses on helping scientists justify their findings and conclusions by making science comprehensible to their lay audiences.

How experts develop communication skills

In addition to helping experts communicate with the public, the Academy provides workshops and other training to help experts learn to communicate effectively in adversarial settings, including trials and legislative hearings. The training allows scientists to participate in simulated trials, depositions, arbitration proceedings, legislative hearings, and media interviews. Scientists learn to use technologies such as power-point presentations to break their reasoning into digestible portions that lay people can more easily absorb.

One fictitious scenario involved a cloud-seeding operation designed to end a drought that resulted in a flood, causing extensive property damage and killing several people. Half the scientists were assigned to work with lawyers representing flood victims while the other half worked with defense lawyers representing a state agency that authorized the cloud-seeding and the company that conducted it. At the end of a mock trial, the scientists sat in on jury deliberations to learn how their testimony was viewed by the lay individuals who listened to it.

Learning opportunities for expert witnesses

This summer will be the third program that the Academy has undertaken to train climate and atmospheric scientists. The Academy hopes to expand its program in the future to train scientists to communicate about fracking, public health, and other controversial fields that would benefit from reasoned explanation in comprehensible language. The NSF grant will allow the program to continue and to expand during the next three years.

Private training for expert witnesses is available from a variety of organizations, such as The American Institute for Expert Witness Training. Learning to communicate complicated ideas to an unschooled audience is a worthwhile pursuit for experts, whether through formal training or by working closely with attorneys who help them testify effectively.

Quality of Expert Testimony Questioned in Death Penalty Appeal

The importance of expert witnesses in constitutional challenges to execution by lethal injection was highlighted by an ExpertPages blog post last year about an anesthesiologist who decided he would no longer testify for states in defense of their death penalty procedures. The anesthesiologist was concerned that his expert testimony would run afoul of the American Board of Anesthesiology’s rule forbidding its members from assisting in the creation of death penalty procedures.

The issue of expert testimony in death penalty cases recently resurfaced when the Supreme Court heard oral arguments in an Eighth Amendment challenge to Oklahoma’s procedure for administering lethal injections. One of the controversies in that case surrounds the quality of the expert testimony that Oklahoma relied upon.

The Controversy Before the Court

Constitutional challenges to lethal injections are based on the claim that the “drug cocktail” typically used by executioners violates the Eighth Amendment’s prohibition of “cruel and unusual” punishments. Experts retained by defense lawyers typically testify that the drugs fail to render the condemned prisoner unconscious, causing the prisoner to suffer severe pain before the onset of death.

Most states that execute prisoners by lethal injection use three drugs: an anesthetic that is supposed to render the prisoner unconscious, a paralytic drug, and a drug that stops the heart. Drug companies that manufacture the two anesthetics commonly used in executions have stopped supplying them to state governments, primarily because those drugs are manufactured in countries that object to the death penalty.

Five states, including Oklahoma, decided to substitute a drug called midazolam as the anesthetic in the three drug protocol. Lawyers for Oklahoma’s death row inmates produced evidence that prisoners who were given midazolam during their executions experienced excruciating pain before they died, although they were unable to speak due to the paralytic.

A dozen pharmacology professors, lending their expertise as “friends of the court,” expressed the opinion that midazolam is not an appropriate substitute for the anesthetics that were used in earlier procedures. A key section of the brief they filed with the Supreme Court is captioned “Midazolam is Incapable of Rendering an Individual Unconscious.”

Oklahoma’s Expert Witness

Oklahoma’s expert witness, Dr. Roswell Lee Evans, testified in earlier court proceedings that inmates who received a sufficient dose of midazolam would be anesthetized. In his words, within two to five minutes after the administration of midazolam, “I doubt very seriously if any pain would be felt.” He acknowledged that a prisoner would likely feel severe pain from the administration of the second and third drugs if midazolam did not render the prisoner unconscious.

Dr. Evans is a board certified pharmacist. He is also the dean of the Harrison School of Pharmacy at Auburn University. While Dr. Evans’ credentials are impressive, he testified that he has no personal experience with the administration of midazolam to patients. He based his opinions on an extrapolation of the effects that might be produced by higher doses of midazolam than those that are given for therapeutic purposes.

The pharmacology professors who filed the Supreme Court brief disagree with Dr. Evans. They contend that midazolam has a “ceiling effect” and that higher doses do not increase the drug’s potency. All of the experts agree that, given its potential lethality, high doses of midazolam have never been tested on humans in a clinical experiment.

Dr. Evans’ Reliance on Drugs.com

It is common for experts to disagree. More problematic is that Dr. Evans appears to have based the opinions he expressed in his expert report largely on information he gleaned from Drugs.com, a consumer website that warns readers not to rely on its content as medical advice.

One of the pharmacology professors who joined the Supreme Court brief criticized Dr. Evans for relying on a consumer website instead of scientific studies. She suggests that experts should rely on primary literature, not on simplified explanations that appear on consumer websites.

Dr. Evans’ reliance on Drugs.com did not escape the notice of Supreme Court Justice Sonia Sotomayor. In an opinion dissenting from a refusal to stay an execution earlier this year, Justice Sotomayor called attention to Dr. Evans’ reliance on Drugs.com rather than scientific studies to support his opinion. Justice Sotomayor wrote that she was “deeply troubled by this evidence.”

While Dr. Evans defended his report on the ground that Drugs.com includes “outstanding references,” experts who rely on “dumbed down” explanatory materials rather than primary sources risk having their opinions discredited. Perhaps the pool of expert witnesses who are willing to testify in favor of lethal injection methods is running dry, but state governments cannot expect to make a convincing case when they rely on witnesses who rely on consumer websites to support their expert opinions.

Philadelphia Lawyer Held Accountable for Expert’s Violation of Court Order

The importance of good communication between an expert witness and the attorney who hires the expert is illustrated by a sanction of nearly $1 million dollars that a judge in Philadelphia imposed upon an attorney after an expert violated a court order. The controversial ruling has unsettled Philadelphia lawyers who say they should not be held accountable for mistakes made by their expert witnesses.

The Expert’s Violation of the Court’s Order

Insurance defense lawyer Nancy Raynor represented a doctor in a lawsuit alleging that the doctor’s malpractice contributed to a patient’s death. X-rays taken in response to the patient’s complaints of chest pains and shortness of breath revealed a potentially cancerous nodule on the patient’s lung. The patient was not warned about the nodule. Twenty months later, the patient was diagnosed with lung cancer. He died six months after receiving that diagnosis.

Lawyers for the patient’s family obtained an order from the trial judge barring any reference to the patient’s history of smoking. The judge agreed that the question at trial was whether the healthcare providers were negligent in failing to diagnose and disclose a potentially cancerous condition, regardless of how the cancer might have originated.

At trial, Raynor called a physician as an expert witness for the defense. During the physician’s testimony, Raynor asked whether the deceased patient “had any cardiac risk factors.” The physician answered that the patient was hypertensive and a smoker.

The jury ruled in favor of the patient’s family but returned a verdict of $190,000, an amount that barely covered the expense of the plaintiffs’ expert witnesses. The judge then granted a motion for a new trial, citing the prejudicial nature of the defense expert’s testimony and the violation of the court’s order. The judge ordered Raynor to pay $170,000 in costs incurred by the patient’s family in bringing the case to trial. The judge also ordered Raynor to pay more than $775,000 in legal fees to the two firms that represented the plaintiffs.

At a second trial, the patient’s family obtained a verdict of $1.9 million. That fact did not appease the trial judge, who rejected Raynor’s motion to reconsider his ruling. An appellate court is now considering the appropriateness of the sanction.

The Duty to Communicate with Witnesses

When the court enters an order that prohibits witnesses from giving certain testimony or mentioning specified facts, lawyers have a duty to caution their witnesses about the order. As Raynor’s case makes clear, lawyers should take pains to emphasize the importance of tailoring expert witness testimony to comply with the court’s order.

Raynor told the court that she advised the expert of the court’s order and argued that she should not be held responsible for the expert’s mistake. When questioned at the sanctions hearing, the expert testified that he “could not recall” whether he had been told not to mention the patient’s smoking habits but conceded that he “possibly” was told not to do so. Raynor called two witnesses to support her testimony that she warned all her trial witnesses about the court’s order. The judge rejected that testimony in imposing sanctions.

After a midlevel appellate court sent the case back to the trial judge for a new sanctions hearing, Raynor called a third witness who confirmed hearing her caution her witnesses not to testify about the patient’s smoking habit. The judge said that the witness’ testimony was not credible, in part because it was inconsistent with testimony given by Raynor’s other witnesses. The judge accused Raynor of deliberately violating the order to influence the outcome of the trial.

Concerns Raised About the Judge’s Ruling

Philadelphia lawyers have expressed concern about the judge’s ruling. If it is upheld on appeal, Raynor says she will be forced to close her practice and might lose her home. Lawyers worry that the case sets a precedent for imposing huge sanctions upon attorneys when their expert witnesses inadvertently violate court orders.

Dividing blame between the expert and the lawyer is at the heart of the judge’s sanction order. However that issue is ultimately resolved on appeal, the case sends a message to lawyers and to expert witnesses about the importance of communication. When a judge enters an order that limits or otherwise affects the testimony to be given by an expert, lawyers must take care to ensure that the expert is advised of the order and understands its meaning and importance.

Lawyers who want to minimize the risk that they will be held accountable for an expert’s violation of a court order might want to give the expert written notice of the order. A letter instructing the expert not to give prohibited testimony, reinforced with an oral warning immediately before the expert testifies, could save both the lawyer and the expert from the embarrassment (and financial trauma) that follows the violation of a court order.

How an Expert Explains the Psychology of Killers

Psychologists can play important roles in criminal cases for both the defense and prosecution. During trials, they may focus on issues of eyewitness identification, diminished capacity, or the susceptibility of child witnesses to outside influence. Before trial, they establish or refute a defendant’s competency to stand trial. At sentencing, they educate the judge about the defendant’s cognitive ability, mental impairments, family history, social environment, treatment needs, and potential for rehabilitation. Psychologists who provide mitigating evidence during the death penalty phases of murder trials often make the difference between life and death.

Explaining the Choice to Kill

In his recently published book, Listening to Killers, Dr. James Garbarino recounts the lessons he learned from his twenty years of testifying as an expert witness in murder cases. His book exemplifies the kind of testimony that psychologists provide in criminal cases.

Chapter one (available as a pdf online) explores whether and why murderers choose to kill. Mixing case studies from his own experience with current research findings, Dr. Garbarino explains how the choices that murderers make are shaped by a variety of factors, including brain functions, cultural values, panic, personality disorders, traumatic experiences, fear, misperceptions, addiction, curiosity, peer pressure, and the instinct for self-preservation.

Psychologists often examine the difference between choice and compulsion. They join neuroscientists in asking whether the concept of free will (upon which the criminal justice system’s philosophy of punishment is based) is just an illusion. Behavioral choices that many people perceive as evidence of moral weakness or “bad character” may not be choices at all, in the sense that choices can be driven by unconscious motivations. If the decision to murder is the product of psychological and environmental factors that the killer did not choose, is the killer really choosing to kill?

The Science of Decision-Making

Psychologists are not called upon to justify criminal behavior, but to make it comprehensible. Their goal is to help judges or juries see the defendant as a human being, not as a monster. They focus on “the science of decision-making,” basing testimony on the neuroscience community’s evolving understanding of brain development and its impact on human behavior. They also rely upon studies that have linked murders and violent behavior to damage in parts of the brain that are responsible for moral calculations or empathy.

At the same time, experts caution against attributing criminal or violent behavior solely to underdeveloped or damaged brains. Research suggests that murderers have a “genetic vulnerability” to brain development that fails to control antisocial behavior. Despite that vulnerability, brains may develop normally when children are raised in a safe and nurturing environment. On the other hand, abuse or trauma may act as triggers that prevent vulnerable brains from developing the social controls and empathy that cause most people to behave nonviolently.

Differing Approaches to Expert Testimony

The extent to which psychologists are permitted to testify in criminal cases varies from state to state and from context to context. For example, the admissibility of a psychologist’s pretrial testimony on the issue of competency to stand trial is relatively uncontroversial. Mitigation testimony during sentencing is also generally admissible and, in the death penalty phase of a trial, cannot generally be precluded and may even be required.

Judges typically exercise considerable discretion over the admissibility of a psychologist’s defense testimony in the guilt phase of a murder trial. Some states have adopted evidentiary standards that preclude experts from offering an opinion as to whether a defendant was capable of forming an intent to kill. Judges are even less likely to allow a psychologist to testify that a defendant did not have an intent to kill.

State evidentiary standards also differ as to whether (for example) a “battered woman’s defense” can be raised to explain why an abuse victim killed her abuser. Similarly, states have taken inconsistent approaches to diminished capacity defenses. When they are allowed to testify, however, there is little doubt that psychologists and behavioral experts can be of enormous assistance to a criminal defendant who is charged with murder.

Convicted Boston Marathon Bomber Turns to Neuroscience Expert Witness in Sentencing Trial

As the sentencing trial for convicted Boston Marathon bomber Dzhokhar Tsarnaev continues, defense attorneys for Tsarnaev called respected neuroscience expert witness in an effort to avoid a death penalty judgment.  Consistent with the defense’s position during the early part of the trial, the expert has been called to provide testimony that minimizes Dzhokhar’s role in planning and executing the attacks.

Prosecutors Point to Unrepentant Behavior

As the sentencing phase of Dzhokhar Tsarnaev’s trial began, prosecutors attempted to paint the defendant as an unrepentant and willing participant in the Boston Marathon bombing attack.  Tsarnaev was convicted last month on all criminal charges levied against him, including charges of terrorism and conspiracy to deploy weapons of mass destruction against the public.  Prosecutors have alleged throughout the trial that Tsarnaev was equally responsible for the planning and execution of the attacks along with his brother, Tamerlan.

Beyond the evidence used to convict Tsarnaev of the crime, prosecutors have used his recent behavior to show that he remains defiant and without remorse for his actions.  Dzhokhar is responsible for writing a series of notes that prosecutors argue demonstrate his willingness to engage in acts of Islamic terrorism, and was recently photographed flipping a jail cell camera off in anger.  Prosecutors have pointed to the defendant’s activities before, during, and after his trial as signs that he was not unwillingly convinced to take part in the attack by his brother, but instead was an accomplice and equal partner to the crime.

Defense attorneys for Tsarnaev have countered prosecutors by building upon the strategy they employed during trial and calling a neuroscience expert witness to testify that the defendant’s brain was too immature during the planning and execution of the attacks to make him sufficiently culpable as to warrant the death penalty.

Tsarnaev’s Brain Development at Issue in Sentencing

Dr. Jay Giedd, chief of brain imaging at the Child Psychiatry Branch of the National Institute of Mental Health took the stand last week to testify that Dzhokhar’s brain was not fully developed at the time of the attacks.  According to Dr. Giedd, Dzhokhar, who was 19 at the time of the bombing, did not have a fully developed prefrontal cortex, which is the area of the brain responsible for planning, impulse control, and judgment.  Neuroscience research indicates that the prefrontal cortex is not fully developed until the late twenties, and as a result, the defendant’s capacity to control aggression or excitement was weak leaving him vulnerable to suggestive influence.

Dr. Giedd told jurors that teens with underdeveloped prefrontal cortex are unable to adequately process risk vs benefit analysis, and are more likely to accept actions that favor short term rewards with little consideration of long term consequences.  Although Dr. Giedd conceded on cross-examination that some brains develop faster than others, and Dzhokhar had the capacity to comprehend the consequences of his actions, his testimony supported the defense’s case that the defendant was developmentally immature and vulnerable to his brother’s influence.

Use of Brain Development Expert Witnesses Growing

The immature brain strategy employed by using Dr. Giedd as a neuroscience expert witness is not uncommon as defense attorneys across the country have incorporated brain development into serious offense trials.  Advances in neuroscience provide opportunity for neuro expert witnesses to inform jurors about potential brain development issues or defects that can influence judgment, decision-making, and ultimately behavior.  As in the Dzhokhar Tsarnaev case, neuro expert testimony is not always used to exonerate the defendant, but is deployed in an effort to reduce sentencing.

In this case, Tsarnaev’s legal team turned to Dr. Giedd’s expert testimony to lend scientific credence to the point they have hammered home since the high-profile trial began: Dzhokhar committed the crimes of which he was accused, but he lacked the necessary desire and intent to plan and execute a terrorist attack without the influence of his older brother.  Considering Dzhokhar’s brain development and the influence his older brother had over him, defense attorneys have argued that life in prison is the more appropriate sentence rather than death.

Review finds Widespread Flaws in FBI Forensic Expert Witness Testimony

The Federal Bureau of Investigation (FBI) and the Justice Department (DOJ) admitted to decades of flawed forensic expert witness testimony, potentially affecting 1,500 convictions administered between the 1970’s and 2000. The massive post-conviction review of the FBI’s hair and fiber laboratory began in July, 2012 was designed to test the accuracy of forensic expert analysis at trial, and the early results show a disturbing trend of FBI examiners overstating forensic conclusions to the benefit of federal prosecutors.

Post-Conviction Review Challenges FBI Expert Witnesses

Review of FBI hair and fiber expert testimony began in earnest in 2012 after the Washington Post uncovered evidence suggesting that DOJ and FBI officials were aware for years that flawed forensic analysis contributed to thousands of prosecutions dating back to the 1970s.  Although the FBI’s standards for hair and fiber analysis changed in the early 2000’s, information began leaking that analysts at the Bureau were noticing alarming numbers of false positives in DNA identification based on hair and fiber forensic analysis, leading the DOJ to partner with the Innocence Project and National Association of Criminal Defense Lawyers (NACDL) to conduct a public and transparent review of FBI forensic expert testimony.

The review narrowed its target cases to 2,500 which featured expert analysis of hair and fiber DNA evidence used by prosecutors to convict defendants, and 95{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the 268 reviewed so far indicate errors in FBI forensic expert testimony.  The NACDL, Innocence Project, FBI and DOJ have also announced that results of 350 more testimonies and 900 lab reports are complete and may be released within the coming weeks.

Flawed FBI Expert Testimony Aids Federal Prosecutors

An alarming theme across the flawed expert witness testimony is the tendency of FBI forensic experts to overstate the certainty of DNA matches to link defendants to a particular crime scene.  Further, FBI experts would support testimony with misleading or incomplete statistical evidence that further strengthened the connection between defendants and the crime scene.  Another issue uncovered by the review is the lack of accepted scientific agreement on how hair and fiber analysis should be conducted, and how strong the evidence is as a DNA analysis tool.

Although many legal and political experts are crediting the FBI for its willingness to undertake such a massive review of its forensic expert practices, the disturbing results of the analysis are likely to send a lasting ripple through the federal criminal justice system that could result in thousands of appeals of conviction filed in the coming years.

Results of FBI Expert Witness Review Leave DOJ with Uncertain Future

Response to the negative review of FBI forensic expert witness has been appropriately critical of the investigators in the Bureau and federal prosecutors who made use of the testimony during trial.  Leaders of the Innocence Project and the NACDL have denounced the FBI’s hair and fiber lab work as a “disaster,” and have called for action going forward that to not only correct the injustice, but prevent the use of flawed DNA testimony in the future.  The sentiment is joined by a number of US Senators who have called the results “appalling and chilling in their indictment of the criminal justice system,” and demanded a “root-cause analysis” to hold the responsible parties accountable.

Beyond the critical response to the review of flawed FBI expert testimony, the logistical concerns facing the DOJ and the federal criminal judiciary are potentially overwhelming.  Without question, defendants in each case that has identifiable flaws in DNA expert witness testimony will file an appeal.  With much of this testimony offered in cases involving serious criminal charges, some of them involving the death penalty, the convicted defendants are highly motivated to seek reversals of convictions based on faulty expert testimony.  While not every case will warrant an appeal, the federal criminal justice system faces an uphill battle in the coming months and years as the full fallout of the FBI expert testimony scandal comes to light.

Employment Discrimination Expert Witnesses Featured in Silicon Valley Lawsuit

The high profile gender discrimination lawsuit filed by Ellen Pao against her former employer Silicon Valley investment firm Kleiner Perkins Caufield & Byers culminated this week with an expert witness hired by the plaintiff eviscerating a defense expert’s testimony that the venture capital firm did not engage in discrimination against women.  Pao’s $16 million lawsuit has gained national attention for calling to question the male-dominated culture of Silicon Valley, so it is no surprise that both sides have turned to employment discrimination expert witnesses to discuss treatment of women in a high-end venture capital firm.

Ellen Pao Files High Profile Gender Discrimination Case against Venture Capitalist Firm

Ellen Pao, who was terminated from employment by venture capital firm Kleiner Perkins Caufield & Byers in October 2012, filed a lawsuit in California alleging that the company engaged in a pattern of sexual discrimination that created a hostile work environment for women.  During the trial, which has been closely watched in Silicon Valley investment circles, Pao’s lawyers painted a misogynistic picture of Kleiner Perkins by firing off a number of allegations including male partners saying women “kill the buzz” at meetings, taking all-male ski trips and dinners with Al Gore, having sexually inappropriate conversations about porn stars and “hot” female executives while on private planes, and giving inappropriate gifts such as a book of erotic poetry given to Pao by a senior male colleague.

Pao also claims that she was the victim of inappropriate sexual advances, was passed over for promotions because of her gender, and was retaliated against by a senior partner with whom she had an affair after she called the relationship off.  Citing an instance where two men with less seniority and experience were promoted instead of her, Pao highlighted her sexual discrimination lawsuit by arguing that the male partners preferred men in management roles.

Kleiner Perkins has focused much of its defense efforts on pointing to a consistent pattern of negative performance reviews given to Pao since she joined the firm in 2005, and her conflicts with employees throughout the firm.  Attorneys for Kleiner Perkins presented evidence to the jury that Ellen Pao was not qualified to succeed at the company regardless of her gender.  Supplementing the defense’s argument was a report from an outside investigator, Stephen Hirschfeld, who argued that the firm’s employment practices showed no evidence of gender discrimination.

Defense Expert Argues Against Gender Discrimination

On the eighth day of the trial, Stephen Hirschfeld took the stand as a defense expert witness to present the results of his investigation into Pao’s allegations that Kleiner Perkins engaged in gender bias against female employees.  According to Hirschfeld, Ms. Pao is smart, but difficult to work with and was unable to substantiate her serious allegations against the company.  Hirschfeld found no evidence of all-male trips that Pao complained of, and concluded that the relationship she had with a former managing partner at the firm was consensual and without consequence on her career.  After interviewing women who worked at Kleiner Perkins, Hirschfeld called the environment “tough but fair” where women can succeed.

In regards to Pao not getting promoted, Hirschfeld presented evidence that the plaintiff’s performance had not been well reviewed throughout her career, concluding that the partners had reason to pass over her in favor of more junior members of the firm.  Pao’s attorney criticized Hirschfeld for providing an incomplete analysis of the Kleiner Perkins environment, and this week the plaintiff called her own expert witness to contradict Hirschfeld’s investigation.

Plaintiff Expert Criticizes Bias Investigation in Pao Gender Discrimination Case

Attorneys for Ellen Pao called Allison West of Employment Practices Specialists as an employment discrimination expert witness to contradict Hirschfeld’s report that Kleiner Perkins did not engage in discriminator behavior.  According to West, Hirschfeld’s analysis failed to thoroughly evaluate whether or not the men at the company were held to different standards than the women.  While Hirschfeld researched Pao’s direct claims, West argued that he failed to look at men who were in the same position as the plaintiff to determine if they had similar challenges in succeeding at the firm.  Further, West testified that Hirschfeld did not completely investigate Pao’s complaints by failing to interview all relevant witnesses or consider evidence supporting her discrimination argument.

On cross-examination, West was subject to a rigorous attack from lead attorney for Kleiner Perkins, Lynne Hermle.  Hermle pointed out that Pao’s performance reviews had very little positive feedback, while the reviews for the two men who were promoted over her had several glowing remarks, arguing that West had also conducted a bias investigation into Pao’s case.  The Pao trial, which could send significant ripples across the Silicon Valley business landscape, will wrap up this week.

EEOC Expert Witness Excluded for Unreliable Methodology

A criminal records expert witness has been dismissed from an Equal Employment Opportunity Claim (EEOC) lawsuit for sub-standard research that cherry-picked data to support the plaintiff’s case.  The Federal Fourth Circuit Court of Appeals upheld the dismissal last week, and reaffirmed the high methodological standards that expert witnesses are held to.

Expert Witness Supports EEOC Claim

Litigation in EEOC v FreemanEE due to the defendant’s regular practice of conducting criminal background checks for all job applicants, and dismissing applicants with prohibited criminal histories including violent felonies.  In 2008, an applicant who was denied a position with Freeman filed a charge of discrimination alleging that the policy of criminal background disproportionally affected black applicants in violation of Title VII of the Civil Rights Act.

As the case prepared for trial, the EEOC filed an expert witness report from Kevin Murphy, an industrial / organization psychologist, that purported to demonstrate that Freeman’s criminal record checks discriminated against black applicants.  After a series of supplemental reports from Murphy, Freeman filed a request to have the expert reports dismissed for presenting unreliable data and not adding value to the litigation.  Upon review of the Murphy reports, the trial court agreed with the defendant and rejected the EEOC’s expert.

Fourth Circuit Rejects EEOC Expert Witness on Appeal

The EEOC appealed the lower court’s decision to dismiss its expert witness to the 4th Circuit, but the appeals court was similarly unconvinced by Murphy’s efforts.  First, the Court took issue with Murphy’s decision to exclude hundreds, if not thousands, of applicants that Freeman reported conducting criminal background checks on.  Murphy took a limited sample of applicants to Freeman’s business, and the Court felt that his expert witness report was therefore not representative of the effect criminal record checks had on everyone who applied for a job during the period at issue.  By limiting his sample, the Court found that Murphy had selected data that would support the EEOC’s case rather than paint an accurate picture of the effect of criminal record checks.

Going further, the Court found that Murphy’s expert witness report featured a number of “mind-boggling” errors and unexplained discrepancies in interpreting the criminal record check database that he presented.  From miscoded applicants, to incorrect racial designations, to double-counted records, to missing data throughout the report, Murphy’s efforts were littered with what can generously be considered errors, and suspiciously be viewed as attempts to manipulate the data to favor the EEOC’s claims.  One of the 4th Circuit Justices even wrote separately to admonish the EEOC for “disappointing litigation conduct” in attempting to use Murphy as an expert witness despite his methodological shortcomings and habit of using suspect data that may be “cherry-picked” to favor one side.

Finding “the sheer number of omissions in Murphy’s analysis renders it ‘outside the range where experts might reasonably differ,’” the 4th Circuit agreed with the trial court that the EEOC’s expert witness failed to provide a reliable report and was therefore not fit to testify at trial.  As a result of the decision, the EEOC’s complaint has been dismissed.

Mental Health Experts Debate Insanity Plea in American Sniper Killer Trial

Mental health expert witnesses debated the sanity of the ex-marine charged with shooting “American Sniper” author Chris Kyle in the closing stages of the murder trial this week. As the trial of Eddie Ray Routh moves closer to conclusion, both sides presented mental health experts to discuss the defendant’s insanity defense.

Ex-Marine on Trial for American Sniper Murder

The Chris Kyle story had gained significant attention nationwide due to the Oscar-nominated film based on his autobiography, and Routh’s murder trial has earned similar profile. It is undisputed that on February 2nd, 2013 Routh fatally shot Kyle and his companion, Chad Littlefield, at the Rough Creek Ranch-Lodge-Resort shooting range in Erath County, Texas. Routh was taken into custody almost immediately after the shooting, and has plead not guilty by reason of insanity to the two counts of capital murder that he has been charged with. The case has been delayed during the investigation stages, but finally went to trial on February 11th, 2015 with prosecutors seeking a sentence of life in prison without parole for the two killings.

With Routh’s mental state in question, a bulk of the trial has involved testimony from friends and family of the defendant who claim that he had become increasingly erratic in the days and weeks leading up to the shooting due to his mental illness. Supplementing the testimony of Routh’s family and friends, defense attorneys concluded their case by calling Dr. Mitchell H. Dunn to testify that the defendant suffered from schizophrenia that clouded his judgment to the point of insanity.

Defense Expert Witness Testifies to Insanity Plea

Dr. Dunn took the stand earlier this week to tell jurors about Routh’s state of mind at the shooting in an effort to support the defense team’s argument for not guilty by reason of insanity. According to Dunn, Routh did not suffer from PTSD, but instead was crippled by paranoid schizophrenia that induced hallucinations and a belief that hybrid “pig people” were trying to kill him and take over the world.

Dr. Dunn spent more than six hours interviewing Routh last year while the defendant was in jail, and concluded that the psychosis started in mid-2011 when Routh was hospitalized for complaining that he was being eaten alive by a giant tapeworm. Over the next two years, Routh’s psychosis allegedly caused him to have delusions that two of his co-workers were cannibals who wanted to eat him, and that the heater in his workroom was a large human rotisserie. Only eight days before the shooting, Routh was released from treatment by a Veterans Affairs hospital, despite objections by his mother who believed the defendant was a danger to himself or others due to his mental illness.

In regards to the killings, Dr. Dunn testified that Routh thought he felt threatened after meeting Littlefield and Kyle at the shooting range. Dr. Dunn said that Routh “thought he was going to die if he didn’t take care of business and kill them first. It was logical in his mind. None of us would have thought that, but he did.” Stating that Routh’s psychosis caused him to believe that he was in mortal danger, Dr. Dunn told the jury that, in his expert opinion, the defendant met the requirements for legal insanity.

Prosecutors Argue American Sniper Murder Defendant is Sane

The day after Dr. Dunn took the stand as an expert witness for the defense, prosecutors called two rebuttal experts to testify that Eddie Ray Routh was not legally insane when he shot and killed American Sniper author Chris Kyle and another man in February of 2013. According to Dr. Randall Price, a forensic psychologist who spent a total of 10 – 11 hours with Routh in two separate jailhouse interviews and reviewed the defendant’s medical history extensively, Routh had a paranoid disorder that was exacerbated by his use of marijuana and alcohol, but was not delusional. Dr. Price testified that Routh “did know what he was doing was wrong, and he did it anyway,” and accused the defendant of “setting the stage” for an insanity defense by taking an idea of pig people from an episode of “Seinfeld” that Routh saw while in prison.

Another medical expert, Dr. Michael Arambula, reinforced Dr. Price’s findings and testified that the defendant’s use of marijuana and alcohol at the time of the shooting rendered his insanity defense useless. Dr. Arambula, a forensic psychiatrist and former pharmacist, testified that Routh “was intoxicated at the time of the offense … [and] any time intoxication is present, the game is over.” Like Dr. Price, Dr. Arambula was unconvinced by Dr. Dunn’s testimony that Routh was delusional at the time of the shooting, but instead testified that the defendant’s use of drugs and alcohol contributed more to his actions than mental illness.

The trial of Eddie Ray Routh will go to jury next week. If Routh is convicted, he will face life in prison, but if jurors believe that he was legally insane he will be committed to a mental facility instead.

court house

Sex Abuse Expert Testifies During Tutor’s Sexual Assault Trial

A Catholic school tutor in Grand Rapids, Michigan accused of sexually abusing her former student offered expert witness testimony to argue she was pressured into the encounter by the teenager. Two years ago the 33-year-old educator was arrested for having a sexual relationship with her then 15-year-old student, but her defense team has argued that she was the victim and called a sex abuse expert to help jurors understand her actions.

Tutor Accused of Sexual Abuse Claims Duress

Abigail Simon, now 35, stands trial for sexual assault of a former Catholic school student of hers two years ago after the two shared an intimate relationship.  Ms. Simon was discovered when a series of sexually explicit text messages indicated she had been sleeping with her now 17-year-old former student, leading prosecutors to file the sexual abuse charges.  Although the defendant concedes that she engaged in an improper sexual relationship with her former student, her attorneys focused the defense on evidence that the underage student was the aggressor, causing Ms. Simon to engage in sexual activity under duress.

Arguing that the teenager was a sexually dominant young man who pressured his former tutor into the relationship, Ms. Simon’s attorneys presented a series of text messages between the young man and his friends that featured the victim bragging about his sexual conquests with Ms. Simon and others.  The victim testified for over four days early in the trial, and was peppered by defense attorneys about his sexually explicit text messages and his behavior towards the defendant.

After laying the foundation for her defense, Simon’s attorneys called a sexual abuse expert witness to testify that the victim’s aggressive behavior and her history as an abused woman made her vulnerable to his sexual advances.

Sex Abuse Expert Witness Testifies for Defense

Tom Cottrell, vice president of counseling at the YWCA, was called by Simon’s defense team as an expert in sexual abuse.  After years of counseling sex assault victims and offenders, Mr. Cottrell was asked to provide an explanation for Ms. Simon’s behavior during her sexual relationship with one of her male students.  Although Mr. Cottrell did not opine that Abigail Simon was the victim as her attorneys argue, he explained that because she was a former domestic abuse victim herself, she could perceive some of the messages the teenager sent her as threatening.  Such duress, Cottrell testified, could create a situation where Ms. Simon was concerned how the 6 foot 3 inch, 220 pound teenager would react to her avoiding a sexual relationship.

To supplement Cottrell’s testimony, defense attorneys called friends of the former tutor who confirmed that a previous boyfriend had, in fact, abused her throughout her former relationship.  Linking the past abuse with her sexual relationship to a 15-year-old, defense attorneys attempted to convince jurors that Simon was coerced into sex and therefore not guilty of sexual assault of a minor.

Prosecutors Dispute Sex Assault Justification

Assistant prosecuting attorney Helen Brinkman called the defense tactics a “play in the theater of the absurd,” and criticized Simon’s attorneys for trying to trash the victim as a sexually aggressive manipulator rather than a 15-year-old unable to resist the advances of his tutor.  Prosecutors also talked to Tom Cottrell, and elicited testimony from the sex abuse expert that highlighted several aspects of the profile of a sex abuser the teenager did not fit, despite the defense attorney’s claims that the young man was in control of the sexual relationship.  Further, Cottrell testified that sex abuse victims often try to keep the relationship a secret, which is something the 15-year-old did throughout his relationship with Simon.

The trial of Abigail Simon will continue for several more days before jurors are asked to return a verdict.