Category Archives: General

Don't drink and drive concept. Close up of man hand drinking beer and holding car keys. Responsibly and safety driving

Questions Surrounding a Houston Toxicology Expert Witness Raise Doubt on DWI Convictions

Several Houston area DWI convictions have come under review after a toxicology expert witness had her credentials questioned following a recent trial. The expert has defended herself and her work, however, defense attorneys have asked the Houston DA to conduct a thorough review of past convictions and to remove her from testifying as an expert witness during future DWI trials.

Houston Toxicology Expert Witness Has Credentials Questioned

An expert witness in toxicology who has taken the stand in hundreds of Houston DWI cases since 2006 has had her credibility and qualifications come under fire after defense attorneys noticed her degree does not reflect the specialty upon which her testimony focuses. Dr. Fessessework Guale works as an expert in toxicology with the Harris County Institute of Forensic Sciences in Houston, and has built up a reputation as a noted witness over years of testimony in DWI and other felony trials. Dr. Guale entered the field by claiming she had a Master’s of Science degree in Toxicology from Oklahoma State University, but some digging by a local defense attorney uncovered inconsistencies in her record.

According to Tyler Flood, who is president of the Harris County Criminal Lawyers Association, Guale has misrepresented her qualifications and put her expert testimony in serious doubt. Research by Flood revealed that Guale’s degree is actually in physiological sciences, which could include toxicology research, however, Guale’s studies in toxicology focused largely on animals rather than humans. Flood found these revelations to be significant, telling reporters, “She has flat out stated and testified under oath, I have a Master’s Degree in Toxicology, and that is not the truth … She has lied to the crime lab that she works at, she’s lied to prosecutors, and she’s lied to judges.”

In addition to potentially seeking criminal charges against Guale for the deception, Flood and other criminal defense attorneys have asked for her resignation, for a thorough review of all the DWI cases in which she has testified as a toxicology expert witness, and for the DA to stop using her as an expert witness in trials.

Toxicology Expert Defends Herself Against Allegations of Deception

Speaking to reporters at her home in Houston, Dr. Fessessework Guale defended herself against the allegations that she had lied to prosecutors and judges about her qualifications as a toxicology expert witness. According to Dr. Guale, the matter is simply a “misunderstanding,” and she has the necessary qualifications to take the stand as an expert in toxicology. Guale told reporters, “My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it … It’s called a sub discipline.” She did not address concerns that her toxicology focus was on animals while she studied at Oklahoma State.

Her employers at the Harris County Institute of Forensic Sciences (HCIFS) released a statement which supported Dr. Guale’s qualifications to testify as a toxicology expert witness, but noted it would review her education and training in light of the allegations against her. In its statement, the HCIFS noted that Guale had participated in toxicology training and received certification by the American Board of Forensic Toxicology “reflecting her knowledge, training, and experience in forensic toxicology.” Pending completion of the review of her prior testimony and educational qualifications, Guale has been reassigned and may require re-training before she can continue to testify in court.

Houston DA to Review Impact of Toxicology Expert Mix-up

Attorney Tyler Flood and several other Houston area defense attorneys have called for a complete review of all the cases in which Dr. Guale testified as a toxicology expert witness. The Harris County DA released a statement which said its office is in the process of assessing which cases Dr. Guale’s testimony may have impacted the verdict and will proceed with a formal review accordingly. Attorneys representing clients who were convicted after trials which featured Guale have been asked to contact the DA, but whether or not the issue will result in convictions being overturned remains to be seen.

Attorneys for Jaime Flores, who was convicted of being intoxicated and causing a fatal car accident in part due to Guale’s toxicology expert testimony, have announced that they will file a motion for a new trial based on the revelation about her qualifications and education. Given that Guale has undergone training in toxicology analysis, the miscommunication about the precise nature of her degree may have minimal effect on most of the prior cases she worked on. However, her reputation has come under serious fire and she could be dismissed from future testimony as a toxicology expert in DWI trials.

Blood sample for heavy metals test

Court Excludes Expert Opinion that Lead Paint Caused Neurological Deficits

The New Hampshire Supreme Court recently affirmed a decision to exclude from evidence an expert’s opinion that exposure to lead paint caused neurological deficits in Somali children. The decision illustrates the difficulty that experts face when they apply a recognized methodology to a unique fact situation.

Facts of the Case

A group of children in New Hampshire who are Somali Bantu refugees sued the owners of apartment buildings in which they lived during 2005-06. They alleged that the apartments are contaminated by lead paint. They seek damages for adverse health conditions caused by lead poisoning that they attribute to living in the contaminated apartments.

It is apparently undisputed that the children have elevated levels of lead in their blood. To prove that they suffer from injuries caused by lead poisoning, the attorneys for the children intended to rely upon the testimony of Peter Isquith, a psychologist. After evaluating the 20 children, Isquith opined that 17 suffer from neurological deficits that were probably caused by lead exposure.

The defendants filed a motion to exclude Isquith’s expert opinion. After holding a six-day evidentiary hearing, the trial court granted that motion on the ground that Isquith’s opinions were not based on reliable principles and methods in light of the facts of the case. The plaintiffs were allowed to appeal that ruling before the case proceeded to trial. The New Hampshire Supreme Court issued its decision issued on August 23, 2016.

Expert Opinion Admissibility in New Hampshire

New Hampshire has adopted a Daubert standard for the admissibility of expert testimony. A New Hampshire statute allows a court to admit expert evidence only if the court finds that:

  • the testimony is based upon sufficient facts or data;
  • the testimony is the product of reliable principles and methods; and
  • the witness has applied the principles and methods reliably to the facts of the case.

The New Hampshire Supreme Court has interpreted the statute to mean that there must be “good grounds” to believe the expert’s opinion is reliable before it will be submitted for a jury’s consideration.

The Expert’s Methodology

Isquith relied on two tests to help him decide whether the children suffered from neurological deficits. The first was the Reynolds Intellectual Assessment Scales (RAIS), an intelligence test that is considered appropriate for ages 3 to 94. The second was the Developmental Neuropsychological Assessment, Second Edition (NEPSY-II), which is specifically designed for children.

Both tests have been standardized, meaning that raw scores on the tests have been obtained from large populations. That permits the development of standardized scores that reflect the subject’s test result as compared to others who took the test. For example, if a particular score indicates that the subject scored in the 25th percentile, 75 percent of test-takers have achieved a better score.

The problem for Isquith was that the tests have been standardized with American populations. The groups that took the tests for standardization purposes did not include recent immigrants. Individuals who spoke English as a second language were expressly excluded from the standardization groups. That raised the question whether the tests were valid when applied to Somali Bantu refugees who were not native speakers of English.

Isquith attempted to compensate for the standardization problem by interpreting the test results cautiously. He tried to err on the side of finding no neurological deficit by looking for patterns of poor scores on all of the subtests (including nonverbal subtests) and by relying only on test scores that were well below the norm. He did not, however, compare the test results to a control group of Somali refugees who had not been exposed to lead paint.

The Trial Court’s Ruling

The trial court concluded that Isquith did not employ a reliable methodology because he used tests that had not been validated with regard to a Somali population, or any population that speaks English as a second language. The tests have a known error rate for an English-speaking population, but they have no known error rate for other populations. The court was concerned that poor test results might reflect the fact that the test-takers did not speak English as a native language, rather than reflecting cognitive difficulties.

If Isquith had administered the tests to a large group of healthy Somali refugees and used those results for a baseline comparison, he might have been able to produce valid results. While Isquith testified that he considered a Somali test subject to exhibit neurological difficulties if the subject scored below a certain cutoff level (identified sometimes as 10% and other times as 15%), he had no way of knowing whether significant numbers of healthy Somali refugees of similar age and circumstances would have scored above that cutoff level. His approach may have been “cautious” but, in the court’s judgment, it still amounted to “well-educated guesswork.”

The court also expressed concern that Isquith failed to account for other risk factors that may have depressed the test-takers’ scores. Their lack of preventative healthcare before arriving in the United States, their exposure to war, their low socioeconomic status, and other factors may explain their poor test scores. Since Isquith could not rule out those possibilities, the court decided that his methodology was unreliable.

Decision on Appeal

On appeal, the attorneys for the refugees argued that the trial court erred by imposing a stricter standard than whether Isquith had “good grounds” for his opinion. They contended that Isquith employed sound principles that were consistent with cross-cultural assessments made by clinical practitioners and school psychologists. The plaintiffs’ attorneys therefore asked the state supreme court to rule that the trial court exceeded its “gatekeeper” function and invaded the province of the jury by deciding that Isquith’s opinions were not well founded.

As is common when an appellate court reviews a decision concerning the admissibility of evidence, the New Hampshire Supreme Court applied a deferential standard of review. Evidentiary decisions are usually affirmed if the trial court applied the correct legal standard in a reasonable way, even if a different trial judge might have decided the admissibility issue differently.

In the absence of studies or other evidence that validated the results of tests administered to a population of Somali refugees, the supreme court decided that it was reasonable for the trial judge to conclude that Isquith lacked a scientific basis for concluding that the tested refugees suffered from neurological deficits. It was also reasonable to conclude that his opinions were not merely questionable, but were so unreliable that they should not be presented to the jury.

The case illustrates the difficulty that experts face when they apply a well-established methodology to a unique fact situation. It may not have been feasible for Isquith to conduct a validation study of the two tests on a healthy population of recent Somali refugees, but the court’s decision suggests that only evidence of that nature will prove that the plaintiffs suffered from neurological deficits due to lead poisoning. That is an unfortunate result for the children if they are lead poisoning victims, because the court’s decision will prevent them from being compensated for their devastating injuries.

High Profile Forensic Expert Witness Rejected due to Questionable Qualifications

A DNA expert witness who has testified on behalf of defendants in several high profile trials was dismissed from a Colorado courtroom for being unqualified.  The expert’s dismissal could result in attorneys being less likely to use him, however, he argues the judge’s decision to denounce his qualifications was made in error and his expert testimony is scientifically validated.

High Profile Expert Witness Dismissed from Colorado Trial

Richard Eikelenboom is a forensic scientist who has testified as a DNA expert witness in several high profile trials across the country, most notably on behalf of Casey Anthony who was acquitted by a Florida jury in 2011 on all charges stemming from her 3-year-old daughter’s death.  Eikelenboom took the stand in the Casey Anthony trial as a DNA expert, and told jurors that there was not sufficient forensic evidence to connect Anthony to her daughter’s death.  His DNA expert testimony contributed in part to her acquittal, and Eikelenboom has been called as a forensic expert for several years in trials across the country.

Last week, Eikelenboom’s reputation and position as a DNA expert witness suffered a significant blow when a Denver judge discredited his qualifications to testify about forensic evidence in court.  During testimony in a 2013 sexual assault case, the judge presiding over the trial found that Eikelenboom had committed serious errors in his DNA analysis by failing to follow proper scientific standards set by other professionals in the field.  According to prosecutors in the case, Eikelenboom admitted on the stand that he did not have experience directly extracting or analyzing DNA, that his lab is not properly accredited, and that he himself failed proficiency tests in 2011 and 2012.

After hearing about flaws in Eikelenboom’s analysis and proficiency level, the Denver judge rejected his testimony by finding he was unqualified to take the stand.  Since being dismissed as an unqualified expert, Eikelenboom has attempted to dispute the judge’s conclusion and offer assurances that his forensic expert testimony is built on sound principles and methods.

Debunked Expert Witness Defends Qualifications

Speaking to the media after being dismissed from testifying as a forensic expert witness, Richard Eikelenboom attempted to address the accusations that he does not produce reliable DNA analysis.  Calling the claims that his methodology is fundamentally flawed “completely unfounded,” Eikelenboom told reporters that the prosecutors manipulated his responses in order to paint an inaccurate portrayal. According to Eikelenboom, the trial judge did not completely understand his work or his qualifications, and therefore made the decision to reject his testimony without all of the relevant facts.

Eikelenboom also pointed out that his lab has received accreditation from two separate professional organizations, including the American Society of Crime Lab Directors (ASCLD).  Additionally, some of the disputed DNA testing which prosecutors used as proof that he was not qualified was conducted decades ago, and Eikelenboom maintains that he has received the proper training and education to act as a forensic science expert witness.  He also told the press that his professional name and reputation has been slandered, and announced intentions to contact a lawyer.

Forensic Expert’s Dismissal Could Limit Future Opportunities

Prior to last week’s challenge to his professional reputation, Eikelenboom testified in several criminal trials, several of which resulted in defendants being acquitted of fairly serious charges.  In addition to Casey Anthony, the forensic expert was called by former Indiana State Trooper David Camm who was acquitted of killing his wife and children, and helped overturn a murder conviction of Tim Masters, a Colorado man who spent more than 20 years in prison before DNA analysis conducted by Eikelenboom’s lab was used to exonerate him.   While none of the past work can be impacted by last week’s decision, Eikelenboom’s future as an expert witness may be in jeopardy.

Forensic science expert witnesses are widely used in criminal trials across the country, and competition for the opportunity to testify as an expert can be significant.  Experts rely on their professional reputation in order to market their skill set, and Eikelenboom’s recent dismissal will likely impact his opportunities going forward.  Attorneys will be hesitant to hire an expert whose qualifications have been questioned, even if the expert has testified successfully in high profile cases.

Choosing the Right Expert Means Asking the Right Questions

Psychologist Who Falsified Evaluation to Face Criminal Charges

Dr. Albert Fink, the psychologist who caused a mistrial by falsifying the psychological evaluation of Caleb Loving, will now face criminal charges. An arrest warrant was issued for Dr. Fink on felony counts of obstruction of justice and theft.

Trial of Caleb Loving

Caleb Loving was on trial for allegedly setting fire to the Sugar Mill Creek Townhomes and then taking explosives to a nearby fast-food restaurant. Loving is charged with possession of a destructive device or explosive; arson; criminal recklessness; and false informing. His defense attorney argued that Loving should be found not guilty by reason of mental disease or defect.

State law requires that courts appoint at least two mental health professionals to evaluate defendants’ competency when there is a motion by defense to do so. The court appointed Dr. Fink as a forensic psychologist in Loving’s trial. Albert Fink had been licensed to practice psychology in Indiana since 1973.

Motion for a Mistrial

Fink crashed his car into a tree and was taken to the hospital for injuries. The troopers who responded to the crash believe that the crash was intentional. One Indiana State Police trooper who responded to the crash reported that Fink told him that he was scheduled to testify at Loving’s trial and was afraid that it would be found out that he had falsified his report.

When he learned this information, Loving’s attorney, Vanderburgh County Chief Public Defender Stephen Owens, examined the visitor logs at jail. Owens reports that he is, “about 99 percent certain he didn’t see Caleb (Loving).”

On the third day of Loving’s trial, the defense and prosecution filed a joint motion for mistrial and the presiding judge granted the motion.

Fink has been involved in over 70 Vanderburgh County cases since 2001, including trials for murder, attempted murder, child molesting, and kidnapping. The defense attorneys have been notified in all of these cases.

Vanderburgh County Prosecutor Nicholas Hermann says that he expects challenges to arise in some of the cases in which Fink has filed reports. Owens stated, “I think probably every case he has done in the last few years is going to be required to be reviewed… Whether he did anything wrong or not, he is certainly going to be discredited.”

The Evansville Courier & Press reports that Dr. Fink’s Evansville office doors have been locked and his phone number has been disconnected.

Prior Controversy

This is not the first time that Dr. Fink has been involved in controversy. According to Kentucky state records, in 1993, Fink was under investigation for battery against a child. The State uncovered information during that investigation that led them to allege that Fink had been incompetent or negligent and that he had divulged confidential information. The Indiana Psychology Board voted not to pursue disciplinary action against Fink based on those allegations and the American Psychological Association found no wrongdoing by Fink. However, Fink surrendered his license to practice in Kentucky without admitting any wrongdoing.

Experts Battle Over Proposed Wind Turbine Farm

Experts Battle Over Proposed Wind Turbine Farm

Atlantic Wind’s application to build a wind turbine farm in Penn Forest Township has become a heated battle of the experts.

The proposed project would be located between Route 903 and Towamensing Township on property that is being leased from the Bethlehem Water Authority. According to the application, the turbines will be 525 feet high, with rotating blades that have a width of over 300 feet. The site is expected to host 40 of these turbines.

The Bethlehem Water Authority has already signed an agreement with the Nature Conservancy that allows for the turbines’ installation. According to Craig Poff, Director of Business Development for Iberdrola Renewable, the umbrella company for Atlantic Wind, “Penn Forest Township has already determined that it is an appropriate use, because it is permitted by special exception… The zoning hearing is to make sure that we meet the objective standards set forth, things like setbacks, unobtrusive color, things like that.”

The area where the turbines will be located is a pristine forest that is home to white-tailed deer, black bear, red fox, gray squirrel, other small animals, and a large population of reptiles that includes about 20 different varieties of snakes.

Poff stated that the site was chosen because it meets four key elements for wind energy production: wind, access to transmission lines, a market to purchase the energy, and an appropriate area of land. Poff noted that, “We supply clean energy and when wind energy is utilized it offsets the use of fossil fuel…Wind has no emissions and does not contribute to climate change.”

Opposition to Turbines

Dozens of residents have spoken out against the turbines, arguing that it will harm the environment and have negative economic consequences, lowering the value of the surrounding real estate.

Representative Doyle Heffley, R-Carbon, released a statement opposing the project. He cited a report released by the bipartisan Pennsylvania Joint State Government Commission that found that “wind energy projects destroy 42 times as much land resources as natural gas and 22 times that of coal to generate the same amount of power. Windmills also are widely known to cause irreparable harm to birds and other wildlife.”

Expert Opinions

At the zoning hearing, experts testified about the environmental and economic impact.

Real estate appraiser Don Paul Shearer testified that the project could cause homes within a two-mile radius to lose between 20 to 40 percent of their value. Shearer is know for expert testimony on the estimated damages to Alaska after the Exxon Valdez Oil Tanker spill.

Local realtor, Jeff St. Clair, testified that the devaluing could affect more than just the immediately surrounding area, as the decreased price of the homes near the turbines will also cause the prices of the homes nearby to drop.

Richard James, a noise control engineer, said that noise from the turbines would be loud enough to prevent nearby residents from sleeping.

Pamela Dodds, Ph.d., an expert in hydrogeology, has offered testimony about how the turbine project could harm the environment. Dodds testified that the proposed turbine project would deforest at least 292 acres, jeopardizing the exceptional water quality of the nearby Wild Creek.

Music Experts Testify in Stairway to Heaven Plagiarism Trial

Music expert witnesses have testified on behalf of plaintiffs in the Stairway to Heaven plagiarism lawsuit being heard in a US federal court.  The rock band countered with a music expert of their own, giving jurors the opportunity to weigh expert opinions should the case proceed.  The high profile copyright lawsuit against the surviving members of Led Zeppelin will continue this week with a ruling expected in the near future.

Led Zeppelin Sued for Stairway to Heaven

Earlier this month the long anticipated copyright lawsuit against the surviving members of Led Zeppelin over their hit song Stairway to Heaven began in a federal US District Court.  Plaintiff Michael Skidmore, the trustee managing the estate of songwriter Randy Wolfe (stage name, Randy California), filed the lawsuit alleging Zeppelin stole key pieces of music found in Stairway to Heaven from Wolfe’s song Taurus.  Taurus was written by Wolfe while he performed with a 60’s era rock band known as Spirit, and the plaintiff argues that members of Led Zeppelin had heard the song and liked it so much that they used its musical foundation to generate Stairway to Heaven.

The Stairway to Heaven lawsuit has been percolating for several years with Wolfe, who died in 1997, accusing Led Zeppelin members Robert Plant and Jimmy Page of stealing the song in the late 1960’s after a concert in which the two bands shared a billing.  Plant and Page have steadfastly denied remembering the song or knowing who Spirit was, and have argued that while they may have heard the song before there is no evidence that they intentionally stole from Wolfe.  According to the defendants, any musical similarities are coincidental.  While the plaintiffs have provided several pieces of circumstantial evidence – the songs were written only years apart, the two bands performed on the same billing, and Page once praised Spirit in an interview – the case lacks hard evidence that Page or Plant intentionally stole the musical foundation of Taurus when composing Stairway.

In order to demonstrate unlawful plagiarism on the part of Led Zeppelin, attorneys for Skidmore called two music expert witnesses to explain the similarities between Taurus and Stairway to Heaven which the plaintiff argues are too striking to be coincidence.

Music Expert Witnesses Testify in Stairway to Heaven Trial

Skidmore’s attorney Francis Malofiy concluded his case by calling two music expert witnesses to the stand to connect the musical dots between Taurus and Stairway to Heaven which the plaintiffs argue provides evidence of plagiarism.  Professional guitar player Kevin Hanson, who has played rock music for years and now teaches guitar lessons, took the stand and played key passages from both songs on his acoustic guitar in the courtroom.  Hanson told the jury that the songs are “virtually identical,” and when the two songs were played simultaneously he testified that they sounded like one piece of music.  Attorneys for Led Zeppelin had Hanson admit during cross examination that he could easily tell the two apart, but the music expert maintained that the similarities between the two pieces of music were significant.

Dr. Alexander Stewart, a musicologist, took the stand as the second music expert witness called by plaintiffs in the Stairway to Heaven lawsuit.  Dr. Stewart testified that the two songs have identical downward chord progression in some places, and the “note pairs” which represent iconic components of Stairway to Heaven are shared with note pairs in Taurus.  Telling jurors that both Taurus and Stairway included a unique and unusual progression from an E note to an A note which suggests Page and Plant were familiar with Spirit’s work before writing Stairway.

Attorneys for Led Zeppelin countered with an expert witness who explained to the jury that the two songs had significant differences, and any similarities between them were likely due to common musical “building blocks” many songs share.

Led Zeppelin Presents Expert Witness in Stairway to Heaven Case

Attorneys for the former members of Led Zeppelin sued for allegedly plagiarizing portions of Stairway to Heaven from the Spirit song Taurus called Dr. Lawrence Ferrara, a musicologist from NYU, as a defense music expert witness to discuss the two pieces of music.  Dr. Ferrara, who played both songs on his piano in order to demonstrate differences, told jurors that the songs were largely dissimilar, even in areas that the plaintiff alleges were identical.  Dr. Ferrara went on to play other pieces of music which were arguably similar to both Taurus and Stairway in order to demonstrate to jurors that there are building blocks of music which overlap across many songs, suggesting that any similarities between Taurus and Stairway to Heaven are coincidental rather than unlawful.

Members of Led Zeppelin have asked the judge to dismiss the case by alleging the plaintiffs failed to meet an adequate burden of proof.  A ruling is expected later this week.

Ethics Expert Aids in Corruption Conviction of Former Alabama Speaker of the House

The former Alabama Speaker of the House was convicted on corruption charges in part due to ethics expert witness testimony from a past director of Alabama’s Ethics Commission. Prosecutors called the ethics expert in order to explain to jurors the rules that politicians in Alabama must follow when they have personal business interests which could benefit from state funding.

Alabama Speaker of the House Convicted Corruption Charges

Mike Hubbard, the Republican former Speaker of the House for Alabama’s legislature, was convicted last week on 12 of 23 ethics violations for using his political position to earn contracts for companies which he either owned or had financial interest in.  Hubbard was found guilty of using his position as a speaker and as a leader of the Alabama Republican Party to funnel money to two of his companies: Craftmaster Printers and the Auburn Network, a broadcast company in the state.  Prosecutors argued that Hubbard attempted to obtain up to $2.3 million in government contracts or financial favors by exerting his influence over Alabama politics.

After a 12-day trial, jurors convicted Hubbard on 12 counts of ethics violations, including “voting on legislation with a conflict of interest and using his office for personal gain through a consulting contract.”  Hubbard was taken into custody and faces up to 20 years in prison for each of his convicted counts with a sentencing trial set for July 8th.  Hubbard’s ethics trial could be the tip of the iceberg as current and former governors of Alabama may also be charged with abusing their office for personal gain.

A key component of the prosecution’s case against Rep. Hubbard was testimony from an ethics expert witness who not only explained the ethical rules Alabama politicians must follow, but pointedly identified instances where the former speaker had directly violated his lawful obligations.

Alabama Ethics Expert Witness Aids in Corruption Conviction

Former director of the Alabama Ethics Commission Jim Sumner took the stand during Mike Hubbard’s corruption trial as an ethics expert witness and explained to jurors that the former Speaker of the House did not consult the commission when he engaged in questionable business dealings between the state and companies that he held a financial interest in.  According to Sumner, the ethics commission was not consulted before Hubbard supported laws which provided thousands of dollars to companies which he was linked to, with ethics officers only finding out about potential conflicts of interest after it was too late to advise on the matter.

Sumner also testified as an ethics expert witness by explaining to jurors that public officials in Alabama cannot act in their official capacity on issues which could benefit themselves or businesses in which they hold an interest.  Sumner told the court that the Alabama Ethics Commission is available to public officials should they have questions, but no public official, including the Speaker of the House, is allowed to vote on or support legislation which would benefit his or her business interests.  According to the Alabama ethics expert, the law prohibiting conflict of business and political interests is purposefully broad in order to discourage even the hint of corruption in state politics.

Sumner concluded his testimony by telling jurors that he had a working relationship with Hubbard which suggested the defendant was keenly aware of the applicable ethics laws.

Prosecutors Connect Former Alabama House Speaker to Illegal Corruption

After calling the ethics expert witness, Alabama prosecutors offered substantial evidence that former Speaker Mike Hubbard tied his business and political interests together in violation of ethics law.  Former business associates and executives for companies which Hubbard held a personal stake in testified that the Speaker’s position made him an attractive consultant and that companies he worked with received hundreds of thousands of dollars in the form of state government contracts.

Hubbard has maintained that he was conducting lawful business with friends and associates, and that he did not consult with the ethics committee because he was not engaged in corrupt or illegal behavior.  Hubbard’s defense team pointed out that he frequently consulted with ethics expert Jim Sumner on other matters, and did not demonstrate a pattern of corruption which warranted conviction.  Jurors disagreed, and in one month one of the most powerful Republicans in Alabama will receive a potentially lengthy jail sentence for ethics violations.

Expert Witness Attributes Shooting to Water Intoxication

Expert Witness Attributes Shooting to Water Intoxication

Lawsuits by people who are convicted of crimes are rarely successful when they attempt to shift responsibility for criminal behavior. Juries tend to be skeptical of convicted criminals who blame others for their illegal conduct. Still, a former deputy sheriff is relying on an expert witness to help him prove that an I.V. administered by a paramedic caused him to shoot his neighbor.

The Shooting

During the early morning of May 17, 2015, Joshua Dean Nash left a party and went to the home of his neighbor in Snow Creek, Virginia. Nash shot his neighbor in the shoulder with a .380 Smith & Wesson. Nash then sat in the neighbor’s recliner. When the police found him, he was unresponsive.

Nash arrived at the party at about 10:00 p.m. Witnesses say he was “drinking heavily.” Nash contends that he went to the party with nine Coors Light beers but did not drink them all. As Nash recalls it, he sat in a chair and drifted off to sleep. He denies being drunk but does not recall anything that happened after he sat in the chair.

Someone at the party apparently called 911, expressing the concern that Nash had passed out. A paramedic who arrived at the party decided to administer an I.V. in an attempt to hydrate Nash and to help him sober up. After Nash received two liters of saline solution over the period of one half hour, his wife woke him up and drove him home. She noted that he was slurring his words and walking with difficulty.

Nash’s wife parked their truck and walked to the house so that she could deactivate the burglar alarm. When she returned to the truck, Nash was gone. Shortly after that, he shot his neighbor, who had just stepped out of the shower to find Nash standing in his living room.

The neighbor and Nash agree that there was no “bad blood” between them. Why Nash shot the neighbor is a mystery to both of them.

Nash’s Expert Explains the Shooting

Nash entered an Alford plea to felony charges of unlawful shooting and discharging a firearm in an occupied building. An Alford plea allows a defendant to concede that the evidence against him is sufficiently strong to establish guilt while continuing to maintain his innocence. The plea results in a conviction.

To persuade the prosecutor to enter into a plea agreement, Nash relied upon the report of an expert toxicologist. Gerry Henningsen theorized that the rapid infusion of the I.V. probably produced fluid overload resulting in water intoxication. Prosecutors conceded that a jury might accept that theory and find Nash not guilty.

Henningsen testified as an expert witness at Nash’s sentencing. He again expressed the opinion that the I.V. caused water intoxication. The judge gave Nash a three year suspended sentence on the unlawful shooting charge. He deferred the sentence for discharging a firearm. That charge could be dismissed after a year if Nash complies with the terms of his community supervision.

As a result of the felony convictions, Nash cannot legally possess a firearm. He is therefore precluded from returning to his former career in law enforcement. He also lost custody of his son. The paramedic who administered the I.V. resigned from her position after the shooting.

The Civil Suit

Nash is suing the former paramedic for $1 million, contending that she is the source of his troubles. The lawsuit is based on the expert’s belief that the rapid administration of the saline solution caused water intoxication that accounted for Nash’s bizarre behavior.

Too much water can cause a form of intoxication by reducing the amount of sodium in the body’s blood supply. However, Nash may have an uphill battle convincing a jury that he became intoxicated because of water rather than beer. Since beer has very little sodium content, drinking too much beer can also reduce the amount of sodium in the blood supply, while excessive alcohol consumption inevitably causes intoxication.

In addition, administering a saline solution is a recognized treatment for water intoxication, since saline restores sodium to the blood. News reports do not say whether the paramedic administered a normal saline solution, or a hypotonic saline solution that has half the normal saline content and is more likely to cause water intoxication.

The defense will likely engage its own experts to express opinions about whether saline solution causes water intoxication and whether Nash was the victim of water intoxication or beer intoxication. If the case does not settle, a jury will eventually need to decide which expert opinion is more persuasive.

Expert Witnesses Testify in Coast Guard Investigation of Maritime Tragedy

A formal investigation into the fatal sinking of a cargo vessel during a hurricane featured expert witness testimony from a former captain of the ship and an expert on navigating storms.  Experts testified during a public hearing with the goal of helping the review board determine potential liability and identifying opportunities for improved safety measures on large cargo ships.

Federal Investigation Hearings review the Sinking of Cargo Ship El Faro

Last week, the U.S. Coast Guard Marine Board of Investigation held the second of three rounds of investigatory hearings regarding the 2015 sinking of the ocean cargo ship El Faro.  On October 1, 2015, the El Faro sank near the Bahamas while en route to Puerto Rico when it navigated into the path of Hurricane Joaquin.  All 33 souls on board died in one of the worst maritime disasters of a US ship in more than 30 years, and the Coast Guard subsequently took up the investigation in order to identify potential gaps in safety and communication which may have caused the tragedy.

During the course of the hearings, the Coast Guard’s investigatory board heard testimony on shipping standards, inspection requirements, communication practices in the shipping industry, and navigation strategy when approaching hurricanes.  Tote Maritime, the company El Faro shipped for, and inspectors employed by the Coast Guard came under particular scrutiny for potential failures in ship maintenance and safety reviews, with expert witnesses on ocean shipping coming before the board to offer information which may help investigators reach conclusions about the disaster and determine future safety procedures.

Expert Witnesses Testify in El Faro Sinking Hearings

Former El Faro captain Jack Hearn testified before the investigative committee about the ship’s performance during cargo runs.  Captain Hearn, who sailed the ship when it was known as the Northern Lights and operated out of Alaska, testified as an expert in navigating and managing the El Faro.  Hearn told the committee that the ship was more difficult to control when it carried cargo containers, and that the hatches could not open after the ship was underway.  Had the hatches opened, the ship could better manage water intake during storms, and become more difficult to sink.  Hearn also told investigators that it was customary for delays of up to several hours before captains were given permission to change course, saying that Tote Maritime’s delay in responding to El Faro’s request to alter its heading before the crash was not uncommon.

James Franklin, a hurricane expert witness, testified before the committee about the challenges of predicting the movement of Hurricane Jaoquin.  According to Franklin, the hurricane was predicted to move away from the United States and out of the El Faro’s planned route to Puerto Rico before the storm unexpectedly stopped and moved directly into the ship’s path.  The hurricane expert told Coast Guard investigators that the southward motion of the storm which caused the unexpected change in direction is unusual, particularly considering how strong of a storm Jaoquin was.  Both Franklin and Hearn noted that navigating when hit by a hurricane is difficult as the ship would just be trying to stay afloat, suggesting that once the El Faro was hit by the storm there was very little crew members could have done.

Coast Guard Inquiries into El Faro Sinking will Continue

In addition to experts on piloting the large cargo ship and on hurricane storms, the Coast Guard investigators heard testimony about safety and inspection practices customary for the maritime shipping industry.  Captain Hearn’s testimony about some of the features of the El Faro which may have exposed vulnerabilities could lead to changes in inspection requirements and safety standards, and Franklin’s expert hurricane testimony may suggest the need for greater caution when navigating near or around potential hurricane pathways.

The Coast Guard announced it will conduct one more series of hearings later this year before announcing its findings of liability and responsibility for the El Faro’s sinking.  The investigative board hopes to have the ship’s data recorder which contains information about the El Faro’s final 12 hours, but the device will be difficult to recover from the wreckage.  Without hard evidence of the El Faro’s fateful voyage, the investigators will continue to rely on maritime shipping expert witnesses in order to assess responsibility for the tragedy.

Wooden Mallet and flag Of Colorado

Expert Witness Testifies That Security Flaws Enabled Aurora Theater Shooting

In a state court suit by victims of the July 20, 2012 Aurora movie theater shooting, a security expert has testified that flaws in Cinemark’s security helped enable the attack.

University of New Haven professor Gil Fried opined that Cinemark “contributed to an environment where they didn’t have the deterrence or prevention necessary to protect the patrons in their theater.” He stated that Cinemark should have patched its security holes by placing alarms on exit doors and extending their surveillance coverage.

Fried pointed to Cinemark’s decision to not hire security for the premiere of the Batman movie “The Dark Knight Rises.” While the theater typically hired guards only on the weekend, 76 out of the 264 Cinemark theaters around the country showing the film that night did hire extra security for the Thursday night premiere.

Cinemark has argued that the shooting was not foreseeable and the company should not be held liable. Attorney for Cinemark, Kevin Taylor, contested Fried’s qualifications to testify as an expert witness in this case. Fried, who is the only witness for the plaintiffs, has never testified as an expert on movie theater security. Fried’s background is in analyzing security plans for large venues and sporting events.

Taylor plans to call five expert witnesses in Cinemark’s defense: a criminologist, a statistician, a psychiatrist, and two security experts. Cinemark paid one expert $180,000 to prepare a single report showing that mass shootings have not increased over time. One of these experts is a former theater company executive who specializes in movie theater security.

In this state court civil case, the victims of the shooting are arguing that Cinemark theater is liable for providing inadequate security. James Holmes has already been sentenced to 12 consecutive life sentences in prison for each of the people he killed, followed by another 3,318 years for those he injured. Cinemark also faces a separate suit in federal court by a different group of victims. Those trials are set to begin in July. See Traynom v. Cinemark USA, Inc., 940 F.Supp.2d 1339 (2013).