Category Archives: In the News

Experts Challenged In UFC Antitrust Lawsuit

Experts Challenged in UFC Antitrust Lawsuit

The phrase “junk science” is so often wielded as an attack phrase against expert witnesses that it has all but lost its meaning. An antitrust lawsuit involving the Ultimate Fighting Championship (UFC) has resulted in predictable accusations of “junk science” in Daubert motions seeking to exclude expert opinions upon which the fighters rely. The phrase is hyperbolic, but it remains to be seen whether the trial judge will regard the experts’ methodologies as sufficiently sound to make their opinions admissible.

Class Action Lawsuit

The UFC is operated by Zuffa, LLC, a company founded by Frank and Lorenzo Fertitta to promote professional mixed martial arts (MMA) competitions. Zuffa acquired the UFC in 2001 for $2 million. At that time, MMA was banned in 36 states and had been condemned by Senator John McCain as “human cockfighting.” Zuffa worked to rebrand the sport and to persuade state regulators to legalize it. By 2016, MMA competitions were legal in every state. Even Senator McCain became a fan.

The former fighters who are suing Zuffa contend that the UFC engaged in an anticompetitive scheme to suppress their wages. They allege that the scheme included signing fighters to exclusive long-term contracts and coercing them to renew those contracts, a tactic that prevents competing promoters from signing the best fighters. The lawsuit also accuses the UFC of acquiring other promoters of MMA, only to shut them down. The result, the fighters say, is a labor market monopoly in professional MMA competitions by the UFC.

Part of the scheme, according to the plaintiffs, involved scheduling fewer bouts than fighters wanted while keeping more fighters under contract than they could use. The UFC allegedly kept fighters under contract, even though they had few fights to offer them, to keep the fighters from being signed by competing promoters.

The UFC has denied the allegations and is opposing certification of the lawsuit as a class action. The UFC has also filed Daubert motions challenging the admissibility of the expert opinions upon which the plaintiffs rely.

Andrew Zimbalist

Everyone agrees that the wages paid to UFC fighters has grown as the sport has grown. To prove that wages would have grown more in the absence of anticompetitive activity, the plaintiffs are relying in part on the expert analysis of economist Andrew Zimbalist.

Zimbalist calculated wage loss by applying the “yardstick method.” The yardstick method is often used to calculate lost profits that result from antitrust violations. The method compares profits earned in similar but competitive markets to profits earned by the plaintiff. The assumption is that profits in similar markets will be similar, and that the comparison thus approximates the profits that were lost due to the antitrust violation. The yardstick method is also used to calculate overcharges by comparing prices charged in comparable competitive markets to prices charged by a company that is allegedly violating antitrust laws.

Zimbalist compared UFC fighters’ wages as a percentage of event revenues to the percentage of revenues earned by athletes in the NBA, NFL, MLB, NHL, and boxing. Although the versions of the expert reports that have been made available to the public are heavily redacted, one source reports Zimbalist’s conclusion that UFC fighters would have made an additional $981 million over the 6 year period if they had been paid the same share of revenue as athletes in the other five sports.

Courts have generally accepted the yardstick method as satisfying the Daubert standard of reliability, but the UFC has branded Zimbalist’s methodology as “junk science.” The UFC argues the players in the four major sports leagues are unionized, and that those markets are therefore not comparable to the UFC. Zimbalist counters that players’ unions have created competitive labor markets by, for example, allowing athletes to become free agents. According to Zimbalist, it is the competitive labor market in league sports that increases player compensation, not simply the fact that players are unionized.

Boxing may be the most comparable industry to the UFC, but the UFC complains that Zimbalist took his figures about boxing wage percentages from a different expert’s analysis of a single promoter (Golden Boy) without verifying the data used by that expert. It isn’t unusual for experts to rely on work done by other experts, and if it is the kind of data that experts routinely rely upon, courts do not expect them to reinvent the wheel. The UFC’s stronger argument might be that using data from one boxing promoter is not an adequate sample, given that there are about twenty fight promoters of nationally televised events.

Hal Singer

A court cannot certify a class unless it concludes that questions of law and fact are common to all class members. The plaintiffs are relying on the expert opinion of Hal Singer to prove that the compensation of all proposed class members is adversely affected by the UFC’s anticompetitive practices. Using regression analysis, Singer opined that 78% of UFC compensation is determined by common variables, including card placement, rank, and weight class. Any anticompetitive practice that reduced compensation in general would arguably affect all fighters if fighter salaries are all influenced by the same factors.

More importantly, Singer offered an expert opinion that fighter salaries were affected by UFC’s alleged practice of putting competing promoters out of business while locking key fighters into long-term contracts. Singer contends that foreclosing competition leads to a lower share of revenues being devoted to fighter compensation. By his calculation, fighters lost $811.2 million to $1.6 billion in compensation due to anticompetitive practices.

Singer agreed that wages paid to UFC fighters have grown, but not in proportion to UFC’s revenues. Whether it makes sense to compare “wage level” (actual wages, which have risen) or “wage share” (wages as a percentage of revenues earned, which have fallen) is a key question that the UFC raises in its Daubert motion. The UFC argues that “an analysis of wage share does not provide a reliable means of inferring anticompetitive effect, antitrust injury or damages because it cannot distinguish between a decrease in wage share as a result of the challenged conduct and a decrease as a result of legal and procompetitive business developments that increase overall revenues.”

Judges are trained as lawyers, not as economists or statisticians. Whether a judge is any more capable than a jury of determining whether the plaintiffs’ experts used “reliable methodologies” in this case is unclear. What is clear is Daubert’s requirement that judges must not expose juries to expert opinions that, in the judge’s view, lack a reliable foundation.  In the coming months, the judge presiding over the antitrust lawsuit against the UFC will need to perform that daunting task.


High Profile Forensic Psychiatrist Killed Outside Phoenix Office

A high-profile forensic psychiatrist was shot and killed outside his Phoenix office. His death is being investigated in connection with three other shootings that recently occurred in the area.

The Shooting

On Thursday, May 31, witnesses described hearing a loud argument followed by gunshots near Scottsdale and Bell roads in Phoenix, Arizona. The shooter fled the area. The shooter was described as an adult male, bald, wearing a dark colored hat with a short brim. Dr. Steven Pitt was pronounced dead at the scene.

Phoenix psychologist David Weinstock, who worked with Pitt on forensic cases, speculated that Pitt may have been killed because of his work on criminal cases. He told the Arizona Republic, “I could be wrong, but the timing and circumstances sound a lot like someone who was waiting outside his office for him. . . . I suspect this was one who either got out after Steve helped put him away or someone whose case he was working on who felt threatened about what Steve could do.”  Weinstock said that he and Pitt had previously discussed the risks involved in their lines of work.

Pitt’s killing is being investigated for a possible connection with three other people who were recently shot in the Phoenix area. The other victims were Veleria Sharp and Laura Anderson, paralegals at a Scottsdale law firm, and Marshall Levine, who worked at a nearby mental health facility.

Prolific Career

Dr. Steven Pitt, 59, was a Clinical Associate Professor of Psychiatry at the University of Arizona College of Medicine, Phoenix. Pitt’s expertise included mental state at the time of the offense, competency to stand trial, serial rape, sexual harassment, psychic harm, wrongful termination, violence risk assessment, and officer involved shootings. He also focused on murder for hire, psychiatric autopsy, impaired professionals and domestic homicide. Pitt was known for his work in conducting forensic psychiatric evaluations, particularly those combining videotaping and transcription. Pitt worked with the Phoenix Police Department Homicide and Missing Persons Unit and consulted on numerous forensic psychiatric cases throughout the U.S. Pitt was retained as an expert by both the government and defense in criminal cases, and by defense and plaintiff’s attorneys in civil matters. Pitt was known for his work on the investigations of the murder of JonBenet Ramsey, the Columbine school massacre, and the Phoenix Baseline Killer.

The district attorney who worked on the JonBenet Ramsey case, Alex Hunter, explained why he retained Pitt as an expert, “When I talked to different people about him, he came with really high marks. He gave us insights in terms of ‘profiling’ people that we were looking at that I thought were beyond all of our expertise, important, helpful stuff. He’s tough and tenacious, and he isn’t just a book kind of guy. He was particularly valuable in giving us suggestions about the order and timing and nature of the questions we’d be asking the Ramseys. He always has had extremely strong feelings about the case, which, to put it mildly, he wasn’t afraid to share.” Pitt’s public statements about the case strongly suggest he believed Patsy Ramsey to be the killer, an opinion that is both unsupported by any physical evidence and contradicted by DNA evidence that caused Hunter to exonerate the Ramsey family.

Football Locker Room

Lawsuit Alleging Eli Manning Engaged in Sports Memorabilia Fraud Settles Before Experts Testify

Collectors of sports memorabilia sued Eli Manning and the New York Giants, as well as the team’s equipment managers and a company that sells “game-worn” equipment, claiming that they engaged in fraud. The collectors alleged that Manning was vouching for the authenticity of game-worn helmets and jerseys that, in fact, he had not worn in a game.

The lead plaintiff, Eric Inselberg, says he asked the Giants to authenticate the helmets as game-worn, which the Giants did not do. The plaintiffs also based their allegations on a suspicious email from Manning that asks an equipment staffer for “2 helmets that can pass as game used.” According to Manning’s lawyer, Manning was asking for two helmets that had been used in a game, an interpretation that is difficult to square with the words “pass as” that Manning actually used.

Inselberg sent an email to a Giants’ equipment manager after purchasing helmets that Manning had purportedly worn in games. The email asked: “Are these the bs ones eli asked you to make up because he didn’t want to give up the real stuff?” The equipment manager responded with an email that said: “BS ones, you are correct.”

Manning and the Giants were unable to obtain a dismissal of the lawsuit prior to trial. The collectors and the Giants both relied on expert witnesses in submissions they made to the court and were expected to call those witnesses to testify at trial.

Lawsuit Allegations

Inselberg is an enthusiastic collector of Giants memorabilia. He also sells sports memorabilia. In 2011, the FBI claimed that Inselberg was fraudulently selling fake game-worn jerseys. When Inselberg explained that he was getting the jerseys from an equipment staffer, the staffer denied that he provided jerseys to Inselberg. That denial wasn’t surprising, since equipment managers aren’t supposed to enrich private dealers in sports memorabilia, but Inselberg was able to produce cancelled checks to an equipment manager for team jerseys. The equipment manager later admitted that he had been selling equipment to Inselberg for years.

Prosecutors nevertheless charged Inselberg with mail fraud for falsely selling equipment that he represented to be game-worn. More than a year later, after Inselberg’s attorneys amassed evidence that the equipment manager had been selling Inselberg equipment that was falsely represented as having been game-used, prosecutors dropped the charges. The Giants do not dispute that equipment staffers may have engaged in misconduct in 2011, but contend that no fraud occurred in later years.

Inselberg nevertheless sued the Giants and Manning for allegedly engaging in a scheme to scuff helmets and stain jerseys so that they could be sold as “game-worn.” The lawsuit accused the Giants of keeping the FBI’s attention focused on Inselberg in order to divert law enforcement’s attention from the wrongdoing of Giants’ employees.

Unlike Major League baseball, which makes a strong effort to authenticate each item that was worn or used in a game, the NFL has done little to curb fraudulent sales of game-used equipment. The league leaves authentication to each team. According to Inselberg, the Giants made no effort to police the authenticity of equipment that players or equipment managers sold or donated.

Expert Witnesses

Experts use a process of “photo matching” to authenticate a claim that a jersey or helmet was worn during a game. The expert compares the jersey to photos of players that were taken during the game. While an apparently identical jersey might not prove that a jersey was worn during a game, differences in appearance might be taken as evidence that the jersey is a fake.

Inselberg survived summary judgment by presenting the expert opinion of John Robinson of Resolution Photo-Matching. Robinson determined that photos of four out of five helmets he examined, despite being sold as game-used by Eli Manning, did not match photographs of the helmets Manning wore in those games. Robinson opined that Manning probably never wore them in a game.

The Giants retained their own expert, Troy Kinunen, who testified in a deposition that photo-matching is not a reliable way to assess a jersey’s or helmet’s authenticity. According to Kinunen, photo matching “does not take into account that helmets are routinely reconditioned during or after a season, the evidence of which might be found on the inside of the helmet and not the outside.”


While the expert testimony may not have been conclusive, it strengthened Iselberg’s case. Coupled with the suspicious emails, Iselberg may have been able to persuade a jury that he was only arrested by the FBI because he had been the victim of false representations that the equipment he sold had been used in Giants’ games. Iselberg claimed that the arrest damaged his reputation and hurt his business.

Manning has consistently denied any wrongdoing. He had much to lose if he lost the trial, as the NFL may have viewed a verdict in Iselberg’s favor as reason to impose a multiple-game suspension on Manning for violating the NFL Conduct Policy. The Giants, meanwhile, have contended that the organization never authorized equipment managers to engage in memorabilia fraud, a position that essentially threw equipment staff under the bus if the jury believed that fraud actually occurred.

With so much at stake, it isn’t surprising that the case settled before Manning had to take the stand and testify. The terms of the settlement are confidential, and the parties released a joint statement reminding the public that neither Iselberg’s claims nor the Giants’ defenses are supported by the settlement agreement.


Expert Witnesses Announced in Apple v. Samsung Damages Trial

Apple and Samsung have filed their lists of witnesses for the upcoming damages trial in the U.S. District Court for the Northern District of California. The two companies are scheduled to go to trial on May 14 to determine how much Samsung owes Apple for infringing three design patents.

Case History

This case began when Apple claimed that Samsung copied the entire design for one of its smartphones. Samsung responded that if there was any infringement, the entire device was not copied as an “article of manufacture.” The case went to the United States Supreme Court for clarification on the term “article of manufacture.” The court sent the case back to district court. Apple is still seeking damages in the amount of the entire device’s value. Samsung seeks to show that only a portion of the design constitutes infringement.

Apple’s Experts

Apple lists Richard Howarth, a senior director of the Apple Design Team and one of the co-inventors of the patents at issue in this case. Howarth is expected to testify about Apple’s design process, the infringed design patents, and the other designs considered by Apple.

Apple intends to call its vice president of product marketing, Greg Joswiak, to the stand. Joswiak will offer testimony regarding Apple’s marketing strategy, the competitive market for smartphones, and the importance of Apple’s design patents to its products.

Apple also plans to call Susan Kare to the stand. Kare was an early designer at Apple and the recent recipient of the prestigious American Institute of Graphic Arts medal. Kare is expected to testify about icon and user interface graphics design and one of the patents at issue in the case.

Apple’s experts include Ravin Balakrishnan, a professor of computer science at the University of Toronto; Alan Bell, an expert on industrial design; Julie Davis, a consultant with expertise in accounting and damages analysis; Karan Singh, a professor of computer science at the University of Toronto; and Tony Blevins, a vice president of procurement at Apple.

Samsung’s Experts

Samsung’s list of experts includes Justin Denison, senior vice president of mobile product strategy and marketing at Samsung Electronics America. Denison is expected to testify about the repairability of Samsung’s phones and the company’s holistic design strategy. Denison may also offer testimony regarding his trips to the repair facility near Samsung’s North American headquarters where he saw phones being disassembled and reassembled.

Samsung also lists Drew Blackard, a senior director of product marketing for Samsung Electronics America. Blackard will testify about the parts of Samsung’s devices that used the infringing Apple design patents, explain how some customers disassemble and reassemble their own phones, and describe the smartphone market.

Samsung’s expert witnesses include Jinsoo Kim, vice president in its Corporate Design Center; Kyuhyun Han, an executive in Samsung’s business operations group; Dongwook Kim; Tim Sheppard, Samsung Electronics America’s vice president of supply chain logistics; Sam Lucente, an expert in the term article of manufacture; Michael Wagner, an expert to discuss Samsung’s profits and appropriate damages.


DOJ Expert Testifies AT&T-Time Warner Merger Costly for Consumers

An expert witness for the Department of Justice has testified that the AT&T-Time Warner merger will be costly for consumers.

The government filed a lawsuit against AT&T and Time Warner this past November, arguing that the proposed merger is illegal under antitrust law because it would raise pay TV costs to consumers. AT&T has argued that the merger does not mean that prices would necessarily go up and that it would have no reason to keep content from its competitors because it would make less money in ad revenue. The trial began in mid-March in U.S. District Court in Washington, before Judge Richard Leon.

Expert Testimony

The Justice Department called Carl Shapiro to testify on its behalf. Shapiro is a professor at University at California Berkeley and an economic expert. In the past, Shapiro has held positions at the White House and the Antitrust Division. Shapiro worked on the Comcast-NBC Universal merger when he was the chief economist for the Justice Department.

Shapiro testified that the merger of AT&T and Time Warner will cost consumers an extra $436 million per year by 2017 and and extra $571 million by 2021. Shapiro said, “Consumers will be hurt. . . . They will be hurt because competitors to DirecTV will face higher costs.”

Shapiro testified that the $85.4 billion merger between the two companies will harm consumers, which is the standard that the government uses to determine if a transaction raises antitrust issues. Shapiro testified that the merger would “substantially lessen” competition.

Shapiro testified that AT&T risked raising costs to consumers by: raising the price of content for other cable companies; benefiting in customer additions from rivals that could not afford Time Warner content; and coordinating with Comcast to restrict access to Time Warner and NBC content to hurt emerging over-the-top (OTT) services, a media distribution practice that allows a streaming content provider to sell media services directly to a consumer over the internet.

Shapiro explained that AT&T would be able to restrict its rivals from using HBO as a promotional tool. HBO is used across the industry as a way for cable and satellite services to enroll new customers and retain their existing ones. Shapiro said that AT&T would have added bargaining leverage because of the threat of a programming blackout. Shapiro explained that blackouts are important because, “Even though they don’t happen very much, that’s the key to leverage.”


Attorney for AT&T-Time Warner, Daniel Petrocelli, cross-examined Shapiro. Petrocelli attempted to show that Shapiro’s model did not take into account real-world situations and the offer for Time Warner’s Turner networks to engage in “baseball-style” arbitration in carriage disputes with AT&T’s rivals. Petrocelli also questioned Shapiro over the type of data that he included in his study versus what he chose to leave out.

Shapiro argued that his methodology was in line with standards for merger with reviews and that his methods were in some ways a conservative approach. Shapiro said that his methods focused on the longer-term market structure in the event of a merger.

Bill Cosby

Cosby Defense Expert Admits He Used Google for Expert Report

An expert witness for the Cosby defense team has admitted that he used Google to obtain data for his expert report, that his medical credentials had lapsed, and that his curriculum vitae contained misleading information.

Bill Cosby, 80, was retried for drugging and sexually assaulting Andrea Constand in 2004. He is charged with three counts of aggravated indecent assault. Cosby’s first trial ended in a mistrial following almost 60 hours of jury deliberations.

Expert Toxicologists

Costrand claims that Cosby gave her drugs that incapacitated her to the point where he could molest her without her consent. Constand described becoming disoriented and the loss of the use of her arms and legs.

The prosecution called Dr. Timothy P. Rohrig, a forensic toxicologist from Wichita, Kansas. Rohrig testified that the effects that Constand described were consistent with the effects of Benadryl, which is the over-the-counter antihistamine that Cosby says he gave Constand. Rohrig said, “Benadryl will do that, plus a hangover effect. . . . All the symptoms and the timing are consistent with the ingestion of diphenhydramine.” Rohrig testified that it takes about 10 to 15 minutes for the sedative effects of Benadryl to take effect.

Cosby’s defense team presented Dr. Harry Milman as an expert in toxicology. Milman is a pharmacologist from Rockville, Maryland. Milman has previously worked for the American Cancer Institute and the U.S. Environmental Protection Agency. Milman testified that Costrand could not have experienced the symptoms that she described by taking the amount of Benadryl that Cosby claims to have given Constand. Milman testified that it takes about an hour to experience the side effects of Benadryl.

Milman said, “The symptoms that she described after taking a therapeutic dose would not have occurred within 10 to 15 minutes.” Milman testified that the symptoms that Constand described were “severe” and would have led regulators to prevent them from being sold over the counter. Milman said, “I saw no evidence that Ms. Constand took any drug, Benadryl or otherwise.” He pointed to the fact that there was “absolutely no objective evidence” to support Constand’s claims.

Milman testified that only 1 to 10 percent of people experience side effects from the ingestion of diphenhydramine, the active ingredient in Benadryl. On cross-examination, assistant district attorney Stewart Ryan questioned Milman’s credentials and the way that he obtained data for his report. Ryan showed the court a peer-reviewed medical compendium that stated that about 50 percent of the people who ingest diphenhydramine experience side effects and asked where Milman obtained the 1 to 10 percent figure.  Milman admitted that he used Google to obtain the information.

Assistant district attorney Ryan also questioned Milman on his credentials. Specifically, Ryan asked Milman whether a scholarly article that he listed on his curriculum vitae was actually a reply to a letter to the editor. Milman acknowledged that it was. Milman also acknowledged that he had let his medical license lapse after retiring. When questioned on whether he held any active licenses, he replied, “I hold a driver’s license.”

Breaking News

Bill Cosby found guilty of sexual assault (April 26, 2018) New York Times.

Photo Credit: By The World Affairs Council of Philadelphia [CC BY 2.0], via Wikimedia Commons

Bill Cosby

Forensic Psychiatrist Testifies in Cosby Retrial

A forensic psychiatrist has offered testimony in the retrial of Bill Cosby. Cosby, 80, is accused of drugging and sexually assaulting Andrea Constand in 2004. In Cosby’s first trial, the jury was unable to reach a verdict following almost 60 hours of deliberations. The result was a mistrial.

Constand claims that Cosby gave her pills for stress and that she fell asleep. When she awoke, she found him sexually attacking her, but she was unable to speak or move. Constand didn’t report the incident to police until a year later.

The Retrial

In Cosby’s retrial, the majority of jurors who were empaneled said that they had some knowledge of the past case. Some jurors had no knowledge. None of the jurors were specifically asked if they were aware of the mistrial.

Barbara Ziv, a forensic psychiatrist, was called as an expert witness. Ziv said that it was not unusual for sexual assault victims to continue to have contact with the person who attacked them, especially if the attacker was in a position of power over them. She testified, “I’m not sure I can think of one victim of sexual assault who did not feel humiliated, does not blame herself to some extent, and is not deeply ashamed about it. . . . That’s one reason why so many do not go to police, because when you do you lose control over your narrative and your whole life can take a tailspin.” Ziv said that, “Individuals find themselves feeling frozen, not knowing what to do and feeling frightened.”

Ziv explained “rape myths,”  and the contradictory behavior that may occur after a sexual assault.  Ziv said, “Most of what people believe, the most common knowledge, about sexual assault is wrong.” Ziv explained why sexual assault victims may not remember the details of their assaults and why it may take them months or years before coming forward with their accusations. Ziv told jurors that victims will often not immediately escape if their case involves acquaintances. She testified, “We blame victims for not being the kind of victim we think they should be. . . . If a football player gets hit hard, and gets back up again, we applaud them. But if a victim of sexual assault gets up again and moves on with their life, we say, ‘Then it didn’t happen.’”

Ziv testified that if an intoxicant is involved, it is likely that a survivor will not have a clear or chronological recollection of the events.  She said, “If drugs are involved, it increases the victim’s sense of responsibility, and impacts their memory of the incident.”

Defense attorney Kathleen Bliss cross-examined Dr. Ziv.  Bliss questioned Ziv about false sexual assault allegations such as those made in the Duke lacrosse case and the Central Park Five. Bliss also questioned Ziv about the likelihood of accusers keeping in touch with their attackers. Bliss questioned Ziv about an article in Sky News about sex crimes in which Ziv had been quoted. Bliss said, “The article reported you commenting on the jury’s inability to reach a verdict and convict Mr. Cosby.” Prosecutor Kristen Feden objected to this statement.

Photo Credit: By The World Affairs Council of Philadelphia [CC BY 2.0], via Wikimedia Commons

Vote Here

ACLU Lawyer Questions Testimony of Voting Fraud Expert

An attorney for the ACLU has questioned the credibility and qualifications of the voting fraud expert called to testify in the suit against Kansas Secretary of State Kris Kobach. Kobach is being sued by several Kansas residents who were not allowed to vote because of a Kansas law that requires proof of citizenship. According to the ACLU, “Between 2013-2016, the law blocked more than 17,000 Kansans from registering to vote through the DMV – and a total of more than 35,000 Kansans from registering to vote through any means.”

Voting Fraud Expert

Hans von Spakovsky was called as a voting fraud expert. He testified that noncitizen voter registration is a substantial issue and in support of a Kansas law that requires voters to provide proof of citizenship. Von Spakovsky pointed to cases in Kansas and hundreds of allegations of noncitizens on the voter rolls that date back to the 1980s.

Hans von Spakovsky is a senior fellow at the Heritage Foundation and has written a book on voter fraud called Who’s Counting?: How Fraudsters and Bureaucrats Put Your Vote at Risk. Von Spakovsky opined that using other methods to identify non-citizens would be insufficient because they would be unable to identify illegal immigrants. Von Spakovsky warned that the possibility of being prosecuted for voter fraud does not deter voting by non-citizens because the United States essentially uses “an honor system” for its elections.

ACLU Challenge

The ACLU challenged von Spakovsky on his qualifications and credibility as an expert. Von Spakovsky’s resume includes serving along with the Kansas secretary of state on the commission on voter fraud that President Donald Trump set up, but has subsequently been disbanded. Von Spakovsky also worked for the U.S. Department of Justice during President George W. Bush’s first term.

The Director of the ACLU’s voting rights project, Dale Ho, asked von Spakovsky whether the research for his book, Who’s Counting?: How Fraudsters and Bureaucrats Put Your Vote at Risk had been peer-reviewed. Von Spakovsky responded that he is not an academic, so he does not use the peer-review process. Ho questioned von Spakovsky about his expert report, his understanding of voter fraud in Kansas, and his knowledge of specific instances of alleged fraud. Under Ho’s questioning, von Spakovsky admitted that his understanding of voter fraud in Kansas came from a spreadsheet that had been prepared by Kobach’s office.

Ho also questioned von Spakovsky about and email that he wrote in early 2017 that expressed his concern with President Trump’s decision to make the voter fraud commission bipartisan. Von Spakovsky wrote, “There isn’t a single Democratic official that will do anything other than obstruct any investigation of voter fraud.” Ho played an audio recording of Von Spakovsky denying sending the email or being concerned with its bipartisan nature. Von Spakovsky responded that the attorney was mischaracterizing his answers. He explained that the reporters were asking whether he had sent an email to Jeff Sessions and that he had truthfully responded no. “I was answering truthfully. I was simply asked in essence if I sent an email to Jeff Sessions. The answer was no. It was no at the time. It is no today. . . . The lawyer that I had sent it to, who as I said didn’t work for the federal government then, doesn’t work for the federal government now, unbeknownst to me, he sent it to the attorney general.”


Forensic Pathologist Opines Death Caused By Heroin Not Physical Trauma

A prominent forensic pathologist has testified that the death of Jeffrey Brooks was caused by heroin use, not physical trauma.

The Assault

In 2013, Nick Masley invited Jeffrey Brooks and his cousin Kayla Ellis to a residence. Authorities claim that Masley lured Brooks there to beat him up for getting his cousin addicted to heroin. When Brooks was later leaving the residence, Masley punched him in the face and knocked him unconscious. The police were called to the scene. Brooks’ right eye was swollen and nose was bleeding. He was taken to University Hospital Elyria Medical Center and later transferred to MetroHealth Medical Center in Cleveland. Brooks died two days after the assault. The Cuyahoga County Medical Examiner’s office performed an autopsy and ruled Brooks’ death a homicide caused by blunt force trauma to the head and spinal cord.

The Trial

Masley was indicted with murder and felonious assault. At trial, defense attorney Kenneth Lieux called only one witness to testify of Masley’s behalf. Lieux retained prominent forensic pathologist and medical examiner Dr. Werner Spitz. Dr. Spitz has worked as a forensic pathologist in Maryland, the District of Columbia, Michigan, and Germany and as a medical examiner in multiple counties. Dr. Spitz has served as an expert witness in every state in the country. Dr. Spitz is the author of almost 100 scientific papers and a textbook, Spitz and Fisher’s Medicolegal Investigation of Death: Guidelines for the Application of Pathology to Crime Investigation, now in its fourth edition.

Dr. Spitz testified that he disagreed with the conclusions of the medical examiner. He said, “The cause of death of Mr. Brooks was brain swelling. . . . This was brought on to major degree by the injection of heroin into (his) system. . . . It is my opinion, that with the findings of the autopsy, the fall was a significantly less severe impact in causing brain swelling than the heroin.” Spitz also opined that the fluid found in Brooks’ lungs was caused by heroin use. Brooks’ lungs weighed three times the amount of normal healthy lungs.

On cross-examination, the assistant county prosecutor Donna Freeman asked Dr. Spitz whether the fracture to Brooks’ face and the bruising inside his scalp that had been caused by punches could have caused the brain swelling. Spitz responded that the impact from the punches was not severe enough to cause death. He also referred to the injuries as superficial.

The Verdict

A jury found Masley guilty of involuntary manslaughter, which is a third-degree felony, and two counts of misdemeanor assault. Lieux indicated that he was satisfied with the verdict. “I was pleased with the verdict. I think what I felt the evidence showed is that Nick’s act of punching him was just an assault, a simple assault. . . . He did not act with intent to cause serious physical harm, and the verdict bears that out. Unfortunately, by the verdict, the jury felt the death was one of the approximate results of the assault so that’s why they found him guilty of involuntary manslaughter. I certainly respect the verdict of the jury in that regard.”

Bible, Female Hands

Child Welfare Expert Testifies in Trial Against Mormon Church

A child welfare expert has testified in the civil trial against The Church of Jesus Christ of Latter-day Saints for the alleged cover-up of sexual abuse of minors.

The Lawsuit

Six families filed a civil suit against The Church of Jesus Christ of Latter-day Saints alleging that the church covered up the sexual abuse of minors by Michael Jensen, the son of a church official. In 2013, Jensen was sentenced to 35 to 75 years in prison for the sexual abuse of two minors. The lawsuit alleged that The Church of Jesus Christ of Latter-day Saints and its leaders covered up the abuse, enabling Jensen to commit additional acts of abuse.

Child Welfare Expert Trial Testimony

Dr. Kathleen Faller was called to testify in the case. Dr. Faller is the principal investigator on the University of Michigan site of National Child Welfare Workforce Institute. She is involved in research, clinical work, teaching, training, and writing in the area of child welfare. Dr. Faller testified that she and her department focused on whether the children were sexually abused and what type of harm they have suffered.

Dr. Faller conducted interviews with the minors involved in this case and collected information through parents, other interviews, treatment records, medical testimony in Michael Jensen’s criminal case. Dr. Faller opined that all four children were victimized.

Dr. Faller explained the standardized measures that are used to determine the impact of abuse on the child. In this case, the tools used were the Child Behavior Checklist, the Trauma Symptom Checklist for Children, the Trauma-Symptom Checklist for Young Children, and the Child Sexual Abuse Inventory.

Out of the assessments used in this case, the Trauma Symptom Checklist for Children is the only one filled out by the child; the others are filled out by the child’s caregivers. The Trauma Symptom Checklist for Children is given to children who are 8 years old and older and contains questions related to anxiety, depression, posttraumatic stress, sexual concerns, dissociation, and anger. Test scores above the 70s indicate that a child is in the clinical or not-normal range.

The defense questioned Dr. Faller about the possibility that some of the parents may have aimed for higher scores so that their children appeared more hurt. Dr. Faller acknowledged that possibility and testified that, in one family, “I would say that (the father) over endorsed things.” She said that she discredited some of the results because some of the ratings were statistically unlikely.

Dr. Faller also testified about Michael Jensen’s sexual behavior risk assessment. Dr. Faller said that Michael Jensen’s assessment included cognitive distortions such as thinking that children are sexually curious and believing that the children wanted the abuse to happen because they did not report it. Dr. Faller testified that a juvenile offender is likely to reoffend as an adult if they were an early adolescent at the time of their original offense, if the acts were frequent, if the individual failed to take responsibility, and if the acts were planned. Dr. Faller testified that Michael Jensen was 13 at his first offense, that the acts occurred within one month, and that she believed that he did plan the abuse with one child.