Category Archives: General

Expert Testimony in the Curtis Lovelace Murder Trial

Expert Testimony in the Curtis Lovelace Murder Trial

Curtis Lovelace was arrested in August 2014 for the murder of Cory Lovelace on Valentine’s Day in 2006. His first trial ended in a hung jury. After hearing testimony from 24 prosecution witnesses and 8 defense witnesses, the jury in his second trial returned a not guilty verdict in Lovelace’s favor. Expert witnesses played a crucial role for both sides in the trial.

Facts of the Case

Curtis Lovelace was something of a celebrity in Quincey, Illinois. He was a star football player at the University of Illinois. He returned to Quincey after earning his law degree and became a prosecutor. He was also a member of the local school board.

Media accounts describe Corey Lovelace, Curtis’ first wife, as a “gregarious former cheerleader and honors student from a prominent family.” Eight years after Curtis reported finding his 38-year-old wife dead in their bedroom, he was arrested for murdering her.

Curtis told the police that he took the children to school, returned home, took a shower, and worked on the computer. When he went into the bedroom to check on his wife, he discovered that she was dead.

The paramedics who arrived on the scene noted that Cory’s body was still warm but that rigor mortis was setting in. Curtis told the paramedics that Cory had been sick in bed with the flu. Other witnesses confirmed her illness.

Neighbors testified that they often heard “yelling and screaming” coming from the Lovelace residence. One neighbor testified about the Lovelace’s daughter pounding on the door after they locked her out. Another neighbor complained that Curtis confronted him angrily after he made a noise complaint to the police. A neighbor who confirmed that loud arguments were common in the Lovelace household testified that the loudest voice was Cory’s.

A police detective testified that Cory’s mother told him that Cory had a drinking problem and suffered from bulimia. Cory’s mother denied speaking to the detective. Other witnesses confirmed Cory’s alcohol abuse.

The accusations of murder were based largely on the work of a newly promoted Quincey police detective who was reviewing old cases and became intrigued by the possibility that Cory was murdered. The defense argued that Cory died of natural causes and that the detective was trying to make a name for himself.

Lovelace’s first trial ended in a hung jury in 2016. His second trial began with a new defense team and the assistance of the University of Chicago Exoneration Project.

Prosecution Experts

A number of lay witnesses testified that Cory’s arms were “drawn up by her chest” or that her hands were “near her shoulders” when authorities responded to a 911 call. Because Cory’s hands were elevated a few inches above her body, the prosecution speculated that her hands were laying on a pillow when rigor mortis set in, and that the pillow had been used to suffocate her.

That speculative theory was undermined by prosecution witnesses who disagreed about the degree to which rigor mortis had taken hold of the body. The original investigating detective, for instance, testified that it was still possible to move Cory’s arms, which was consistent with a recent death.

Dr. Jessica Bowman, a pathologist who was not called to testify, performed an autopsy and identified the cause of death as “undetermined.” The coroner then asked Dr. Scott Denton, a forensic pathologist, to review the autopsy report. Dr. Denton expressed the opinion that Cory died of suffocation but said he could not rule out poisoning. The two potential causes of death are so wildly different from each other that the jury may have discounted Dr. Denton’s opinion entirely.

The detective who reopened the case admitted that he tried to get Dr. Bowman to change her autopsy report to reflect that the cause of death was “homicide” rather than “undetermined.” When she refused to do so, he sent emails saying he was “done with Bowman” and began to search for a pathologist who would support his homicide theory. Six pathologists told him that there was no basis for pursuing homicide charges until he found Dr. Jane Turner.

Dr. Turner, a forensic pathologist, testified that she had no doubt that Cory was suffocated with a pillow. She attributed a cut inside Cory’s upper lip to a pillow being pushed against her mouth. She also testified that Cory’s arms would have been at her sides if she had died a natural death. Dr. Turner thought the death may have occurred twelve hours before it was reported to the police.

Cory’s children, however, told the police that they saw Cory standing at the top of the stairs before they left for school. Their statements, made long before any suspicion fell on their father, refuted the theory that Cory died twelve hours before paramedics arrived at the home. Dr. Turner testified that the children “might not be remembering things correctly” when they told the police that they saw their mother alive before they left for school.

A more likely possibility was that Dr. Turner’s opinion about the time of death was mistaken. Presumably, the children would have “correctly” remembered whether their mother was alive or dead when they last saw her. In addition, Dr. Denton reported that the cut inside Cory’s lip was already healing and could not have occurred on the day of her death. The inconsistency between Dr. Turner’s theory and the testimony of the children, as well as Dr. Denton’s report, may have caused the jury to view Dr. Turner as an advocate for the police rather than a neutral witness.

Another forensic pathologist, Dr. Werner Spitz, testified that Cory had eight “fingernail marks” on her neck. He said the position of her arms when she was found dead was “unnatural for a sleeping person.” Dr. Spitz opined that Cory died of suffocation, although he acknowledged that her death didn’t match the “textbook definition” of homicidal smothering.

New York forensic pathologist Dr. Michael Baden testified for the prosecution in the first trial, but the prosecutor decided not to have him testify in the retrial.

Defense Experts

Dr. Shaku Teas, a forensic pathologist, testified that Cory died from natural causes brought on by a fatty liver that resulted from chronic alcoholism. She told the jury that suffocation by a pillow causes blood vessels to hemorrhage and there was no evidence of that on Cory’s face. She said the “fingernail marks” that Dr. Spitz identified were actually moles. She believed that Cory died shortly before the death was reported to the police. She did not view the position of Cory’s arms to be significant because they were not “defying gravity.”

Forensic pathologist Dr. William Oliver testified that Cory died from complications of alcohol withdrawal and fatty liver disease. He said the cut inside Cory’s mouth could not have come from being smothered with a pillow because no blood was found in the mouth. He also suggested that the position of Cory’s arms could have been caused by resting on a comforter that was removed by paramedics.

Not Guilty

In the end, the defense witnesses carried the day. After only two hours of deliberation, the jury found Curtis not guilty.

The defense attributes the verdict in part to Curtis Lovelace’s decision to testify. While many defendants wisely conclude that it is better not to face a cross-examination that might elicit harmful testimony, Curtis gave convincing testimony about his innocence.

Given the quick verdict, it seems likely that the jury attached little importance to the testimony of the prosecution’s forensic experts. The jury probably considered the defense experts to be more credible because they did not need to stretch the factual evidence to fit their testimony. In any event, it seems likely that the defense experts helped establish the reasonable doubt that resulted in Curtis Lovelace’s acquittal.

Little sad boy hugging mom

AAP Revises Standards for Pediatric Expert Testimony

Professional associations often create standards governing the conduct of their members, including guidelines for testifying as an expert. Sometimes the guidelines appear to be based on the concern that an expert might testify against other members of the same profession in a lawsuit that alleges professional malpractice. Guidelines should never discourage experts from giving honest testimony in order to shield other professionals from responsibility for their mistakes.

The American Academy of Pediatrics (AAP) recently revised its guidelines for expert witnesses. It is to the organization’s credit that it recognizes the need for pediatric experts to lend their knowledge, experience, and best judgment” to the judicial system, regardless of the side of the dispute for which they testify.

It is also to AAP’s credit that the organization recognizes that pediatric experts have given testimony in alleged “shaken baby” cases that may be responsible for sending innocent parents to prison. The revised guidelines specifically address that issue.

Ethical Guidelines for Expert Witnesses

One always hopes that expert witness guidelines are meant to encourage ethical behavior, not to discourage professionals from testifying against other professionals. Professional guidelines are sometimes motivated by unfair criticism of expert testimony, such as the following comment in an article written by a doctor:

But, there is an ethical conflict for the expert who is paid to testify; promoting the outcome of a legal case by testifying leads to increased visibility and marketability of the expert; potentially leading to more income.

One might just as easily say that there is an ethical conflict for doctors who are paid to practice medicine, because those who obtain a good outcome for their patients will be able to market themselves more effectively and earn extra income. The doctor’s comment might be taken as evidence that doctors should stick to practicing medicine, not to opining on the legal or ethical standards that apply to courtroom testimony.

Being paid does not create an ethical conflict. Slanting testimony in exchange for money is unethical (as is pretending to cure an incurable disease in exchange for money), but there is nothing unethical about giving honest testimony (or medical treatment) in exchange for a payment. That’s how capitalism works.

To his credit, the doctor who wrote that article recognized that “[a]rguably, ethical conflicts may also exist for professional associations who discipline their members” because the disciplinary bodies may want to “protect [their members] from lawsuits.” It may be more than “arguable” that some professional organizations are more focused on protecting their members than on promoting the ethical behavior of expert witnesses.

As long as an expert is competent to render an opinion and does so honestly and reasonably in light of all the facts, the expert is behaving ethically. And since the legal system depends on experts to hold members of a profession accountable for their mistakes — and to exonerate them when they made justifiable mistakes or none at all — no ethics code should ever be used to discourage an expert witness from giving honest and reliable testimony.

AAP Announces Revised Guidelines

The new guidelines announced by AAP recognize that “pediatricians have ethical and professional obligations to assist in the civil and criminal judicial processes” and that they serve the public interest by providing “scientifically sound and unbiased expert witness testimony.” The policy statement “bolsters the requirements for expert testimony and provides new guidance on ways to prevent irresponsible testimony in medical liability proceedings as well as in child abuse cases.”

Expert testimony in child abuse cases has been questioned because experts have often attributed injuries to “shaken-baby syndrome” that may have been caused by accidents that were unrelated to abuse. Recognizing that many of the experts who claimed to recognize “shaken-baby syndrome” had not researched other potential causes of the brain injuries they observed, the AAP policy statement suggests that pediatricians should not testify about child abuse unless they have been trained in that subspecialty.

The policy also requires retired pediatricians to keep current on medical literature if they testify as expert witnesses. That requirement is particularly important in child abuse cases since recent studies have concluded that “there is no solid scientific evidence that a specific pattern of head injuries is incontrovertible evidence on its own of child abuse.” Retired physicians who don’t keep up with the literature may be unaware of those studies.

Whether the AAP’s policy will be enforced remains to be seen. Many pediatricians continue to testify about shaken-baby syndrome and, while some UK experts have faced disciplinary proceedings for doing so, AAP does not have a significant record of policing pediatricians who give unreliable testimony that causes innocent people to be convicted of crimes.

Standards of Testimony

In most respects, the AAP’s standards for testifying should be uncontroversial. They provide reasonable, common-sense rules that experts should easily be able to follow, including:

  • Experts should give the same truthful testimony and objective analysis of the facts regardless of whether they testify for the prosecution/plaintiff or only for the defense.
  • Experts should base their conclusions on all available medical records and should call attention to any gaps in the medical documentation.
  • Experts should not ignore or disregard relevant evidence for any reason “and certainly not to create a perspective that favors” either party.
  • Experts should use their best judgment to form opinions based on their knowledge and experience and should not express opinions as to matters that are outside of their expertise.

Other common-sense standards suggest that experts should not exaggerate their credentials in advertising or in testimony, should not agree to work for a contingent fee, and should make sure that their insurance covers expert testimony.

Troublesome Standards

More problematic is the requirement that an expert contact his or her employer “to ascertain the organization’s policy” regarding expert testimony. An expert might want to do that to avoid being fired, but how an employer feels about expert testimony says nothing about the ethics of the witness.

Also problematic is the requirement that experts charge fees that are “reasonable and commensurate with the time and effort involved at the prevailing market value.” If an attorney agrees to pay a requested fee, that agreement establishes the market value of the expert’s services. The assumption is apparently that experts will slant their testimony if they are paid too much, but that is a cynical view. Like everyone else, experts charge what the market bears, and it should be rare for a fee to be deemed “unreasonable” simply because it is higher than other experts might charge.

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.