Category Archives: In the News

Smartphones

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 based on the term “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 for which infringement seems to have happened. 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, 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.

Money

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.”

Cross-Examination

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.”

Heroin

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.

Brain scan, CT Scan

Neuropsychologist Testifies That Killer is a Psychopath

A neuropsychologist has testified that the man who was convicted of abducting, raping and murdering an 8-year-old girl from Florida is a psychopath.

The Crime

In June 2013, Donald James Smith met Rayne Perrywinkle and her three daughters in a Dollar General store. He told Perrywinkle that his wife had an extra $100 Walmart gift card and he would buy them clothes if they accompanied him to the store. At some point on that trip, Smith left the store with Perrywinkle’s 8-year-old daughter, Cherish.

Cherish’s half-naked body was found in a nearby creek the next day. Smith’s DNA was all over her body. The medical examiner would testify that Cherish sustained severe injury from being raped and strangled.

It took the jury just 14 minutes to convict Smith of murder, kidnapping, and sexual battery.

Expert Testimony

In the penalty phase of the trial, both defense and prosecution presented expert witnesses to opine on Smith’s mental state to determine whether Smith should face the death penalty or life in prison.

Dr. Joseph Sesta, an expert witness in neuropsychology and the Sexually Violent Predator Program in Florida opined that Smith is a psychopath, “meaning he’s at a high threshold of both committing bad acts and being a bad person, which manifests through personality traits like a lack of empathy, remorse, and compassion.”  Dr. Sesta said, “So, Mr. Smith, he’s stepping on the gas. He has his left hemisphere works fine. But the brakes don’t work well, and therefore, things like anger, aggression, sexuality . . . in order for us to all live together in harmony, we have to be able to put the brakes on behaviors that aren’t socially appropriate. Mr. Smith has deficits in the parts of his brain that help him to brake or control behavior.”

Dr. Sesta spent over five hours with Smith, during which he conducted brain scans. Sesta says that those brain scans validated his assessment of Smith. While other experts have testified that Smith is mentally ill, Sesta believes that Smith was faking symptoms of mental disorders. Sesta pointed out that Smith said that he had previously tried to obtain a copy of the Diagnostic and Statistical Manual of Mental Disorders. Sesta said, “If you were trying to fake a disorder, this would be your Bible to guide you to what symptoms you should produce.”

Other Expert Testimony

Dr. Geoff Coline, an expert in forensic neurology testified that Donald Smith had abnormally small and large portions of his brain and that it was clinically probable that Smith was suffering from chronic traumatic encephalopathy (CTE), or brain trauma.

Dr. Heather Holmes, a forensic psychologist who specializes in sex offender evaluation and treatment within an incarceration setting, diagnosed Smith with personality disorders including major depressive disorder, severe cocaine use disorder, antisocial personality, borderline personality and pedophilic disorders.

Dr. Daniel Buffington, a clinical pharmacologist, testified that the combination of Smith’s chronic substance abuse, psychiatric disorders, and psychiatric medication would have impaired Smith “to the degree that his normal judgement, skills, and ability were profoundly diminished.”

Sentence

Jurors deliberated for only two hours before deciding that the death penalty should be imposed on Smith. The jury verdict authorizes a death sentence, but the judge has final authority to determine whether Smith should be sentence to execution. The judge will make that decision after hearing final evidence in mitigation of the sentence.

Biking, Race

Judge Limits Testimony in Lance Armstrong Trial

A federal judge has set limits on evidence and testimony that will be allowed in the U.S. government’s upcoming $100 million civil fraud trial against Lance Armstrong.

Lawsuit

The federal government is suing Armstrong on behalf of the U.S. Postal Service. The Postal Service paid $32.3 million to sponsor Armstrong’s cycling team from 2000 to 2004. Armstrong later confessed to using steroids or other banned performance-enhancing drugs and methods and was stripped of his winnings from that time period. The government has said that it would not have paid to sponsor Armstrong’s team if it had known that the team was using performance-enhancing drugs and blood transfusions to cheat in races.

The lawsuit was originally filed in 2010 by Floyd Landis, a former teammate of Armstrong’s. Landis is also a confessed doper, but is working with the government as a whistleblower. The federal government joined the suit in 2013.

Claims at Issue

Armstrong has already admitted to use of the drugs, which was in violation of his team’s sponsorship contract, so that is not at issue. The issues are whether there were false claims and whether the Postal Service was damaged by Armstrong’s conduct. The government claims that Armstrong lied about the doping to continue to get paid and that he caused false claims to be submitted to the government for payment. Under the False Claims Act, the government can recover triple, which would total almost $100 million.

Armstrong’s attorneys argue that Armstrong did not cause false claims to be submitted to the government and that the Postal Service was not damaged by the doping. They claim that the Postal Service received the benefit of the bargain, including receiving international exposure when Armstrong won the Tour de France wearing a USPS jersey.

Evidentiary Ruling

Armstrong will face trial in 2018. U.S. District Judge Christopher Cooper has set ground rules for the upcoming trial that limit evidence and expert witness testimony. The ruling prevents the government’s expert witnesses from testifying that the Postal Service received no financial benefit from its sponsorship; however, they will be allowed to testify as to whether the Postal Service was damaged beyond the value of the original sponsorship.

Armstrong’s experts will be allowed to testify about the rampant use of doping in cycling during that time period, which would open up a defense that the government knew or should have known that Armstrong’s team was doping and chose to sponsor them anyway.

Armstrong’s attorney, Elliot Peters, said, “We think it’s great. The court says very clearly the government cannot pursue that the sponsorship had no value because of team doping. They have to prove damages to the Postal Service after 2013 and Lance’s confession.”

Attorney for Landis, Paul D. Scott, also commented on the ruling: “The rulings largely fall our way. . . . The court left open a clear path for the government and Landis to prove up damages arising from negative publicity associated with the disclosure of Armstrong’s doping and concealment.”

a judge's chair

Can an Expert Witness Serve Two Masters: Thorny Expert Issue Reaches the US Supreme Court

It’s rare that cases involving expert witness testimony make it all the way to the United States Supreme Court, and rarer still that such cases raise fascinating issues of interest to the public as well as lawyers and experts.

James McWilliams was tried in Alabama in 1986 for the 1984 rape and murder of a convenience store clerk. His court appointed lawyer asked the trial court to appoint a mental health expert* to assist them because McWilliams appeared to have psychiatric problems that could impact issues of guilt and sentencing.

Court Appoints Single Expert for Prosecution and Defense

Despite the biblical warning that no one can serve two masters, the judge trying the case appointed a single psychiatrist to serve as the expert for the court, the prosecution, and the defense.

A jury found McWilliams guilty of the crimes after a trial. At the sentencing phase of the original trial, the prosecution argued that the judge should impose the death penalty, presenting three aggravating circumstances it argued warranted the death penalty. The defense tried to establish as a mitigating circumstance that McWilliams suffered from a psychiatric condition that the judge should take into account when imposing the sentence.

A report from the court appointed psychiatrist, presented to the defense just two days before the sentencing hearing, stated McWilliams suffered from organic brain disorder and had genuine neuropsychological problems. However, based on a report from prison mental health workers, the trial judge concluded McWilliams had been faking, was not suffering from a psychiatric condition sufficient to warrant a lesser sentence, and sentenced McWilliams to death.

Two Is More Expensive Than One

After a series of countless appeals and motions in numerous state and federal courts, the case was argued on April 24, 2017 in the United States Supreme Court. The central issue: Is a criminal defendant in a capital case entitled to have a mental health expert separate from one appointed by the court for the prosecution?

One factor lurking in the background is, of course, the issue of cost. At the oral argument, recently appointed Justice Neil M. Gorsuch said he was worried that a ruling in Mr. McWilliams’ favor would open the door to all kinds of court-appointed experts, saying “Where’s the stopping point?” “Is it just psychiatry? Would we also have to apply the same rule in other kinds of medicine, perhaps? Forensic science?”

Justice Gorsuch also noted “Experts widely disagree on everything,…. That’s why you hire them. And why they cost so very much.”

Hiring a separate psychiatrist likely would have been relatively expensive. Based on the most current data from ExpertPages 2016 Expert Witness Fees & Practices Survey, the average nationwide hourly rate charged by physicians (including psychiatrists) is $458 per hour, while non-physician mental health experts (such as psychologists) charge an average of $308 per hour. The average assignment for both categories currently costs a bit in excess of $6,400. As the state would have been paying the bill because McWilliams was indigent, clearly that is a factor that impacts the willingness of judges to appoint independent experts. Yet with the decades of post-conviction legal work and appeals that resulted because he did not allow the defendant to hire a separate expert, the trial court’s failure to provide one for McWilliams undoubtedly cost the state of Alabama many times more in legal bills than what an expert witness would have charged.

Expediency of Limiting Cost Should Not Outweigh Constitutional Requirements

Having served as an expert on both civil and criminal matters, I know from personal experience how vital it can be for each side to have its own independent expert provide input to enable the lawyers to develop a case as well as testify. Experts sometimes become a de facto member of the litigation team, and assist the lawyers in terms of strategy and tactics, even if they don’t testify. That’s not going to occur when there is a single expert appointed by the court.

While a court may be interested in what a presumably totally impartial expert would have to say, and such an expert might assist the judge to better understand the issues and sift through the parties’ experts’ reports and testimony, basic human nature suggests a joint expert is unlikely to help both sides present their own optimal case. Further, it’s wholly inconsistent with the adversarial system of justice.

Certainly a shared expert would be far less expensive than multiple experts. As a taxpayer, I appreciate how judges might be loathe to spend precious state resources on psychiatrists and other experts for criminal defendants who lack the financial resources to hire lawyers and experts on their own.

As a lawyer I would find it hard to imagine how the same person who was also working for the other side could adequately assist me in the “evaluation, preparation and presentation” of my case.

As a former prosecutor, I fully subscribe to the concept that no responsible prosecutor should ever bring charges or prosecute a person unless the prosecutor is personally convinced as to the defendant’s guilt and also is of the belief that the evidence is sufficient for a reasonable jury to convict.  Prosecutors are there not solely to obtain a conviction, but to see justice done.

Prosecutors bridle at delays, and many judges come from the ranks of former prosecutors. Yet to maintain our system of justice and assure basic fairness, we have to do far more than a character in Joseph Heller’s brilliant Catch 22, a satirical novel set during World War II, suggested: “I know what I’d like to do with him. I’d like to take him outside and shoot him. That’s what I’d like to do with him. That’s what General Dreedle would do with him.”

Fortunately for criminal defendants nationwide, the prosecutor’s wishes are not the last word. The United States Constitution – as interpreted by the United States Supreme Court – controls. Thus the Supreme Court’s decision in the McWilliams case is likely to have a major impact on both the criminal justice system and the availability and use of experts nationwide.

 

* The request for appointment of a mental health expert was pursuant to a 1985 decision of the United States Supreme Court that ruled that an indigent criminal defendant is entitled to meaningful expert assistance for the “evaluation, preparation and presentation of the defense.”