Category Archives: In the News

Articles about legal issues currently in the news.

Expert Witnesses Differ About Allegedly False Confession in Stark Murder

False confessions to crimes occur with surprising regularity. Expert witnesses, including psychologists and others with similar training, are often called upon to explain to a jury or judge why someone would confess to a crime that he or she did not commit.

A man who is charged with murder in Brooklyn used an expert witness to challenge the reliability of the incriminating statements he made to the police. The prosecution countered with its own expert.

False Confessions and Expert Witnesses

One of the most notorious convictions based on a false confession occurred in 1995, when Daniel Taylor gave the police a signed statement admitting that he committed a double murder in Chicago. He confessed despite the fact that he was in police custody when the murder occurred. Decades later, powerful evidence of his innocence persuaded a court to vacate his conviction. After initially claiming that records showing Taylor’s incarceration were wrong, prosecutors were forced to drop the murder charges.

Taylor confessed because he was coerced by the police. Frightened suspects are particularly likely to make a false confession if the police claim that they will receive the death penalty or other serious punishment if they do not admit their guilt. Other threats (such as the claim that social workers will take away a parent’s children if the parent does not confess to a crime) are equally effective means of inducing innocent people to agree that they are guilty.

An article in Time points out that false confessions are not “a strange anomaly.” In fact, The Innocence Project reports that one in four wrongful convictions involve a false confession or an untrue admission.

Psychologists who have studied the problem of false confessions identify a number of characteristics (including adolescence, mental disability or illness, and certain personality traits) that make some suspects vulnerable to suggestion during a police interrogation. They also identify interrogation tactics (including lengthy interrogations, threats, and lies about evidence of the suspect’s guilt) that contribute to false confessions.

Expert witnesses have become instrumental in explaining to juries why a confession should be rejected as unreliable. While judges at one time tended to rule that such expert testimony was unhelpful because the possibility of a false confession was “common knowledge,” the prevalence of wrongful convictions combined with studies that confirm the reasons for false confessions have increasingly persuaded judges to allow defense experts to testify.

Kendal Felix’s Confession

Kendal Felix is charged with the January 2014 murder of wealthy Brooklyn real estate magnate Menachem Stark. Felix is accused of kidnapping Stark, strangling him, and setting his dead body on fire. Stark’s body was found in a Long Island dumpster.

According to the police, Stark, who was reputed to be a slumlord, had a long list of enemies who might have wanted to see him dead. Felix apparently became a suspect after the police found a video that showed Felix driving a van in Great Neck. The police said it was clear that he was not sure where to go.

Felix was arrested three months after Stark’s murder. The New York Post reported that Felix “spilled his guts” when he was questioned by the police. Felix allegedly told the police that “Erskine” told him that someone named Max owed him money and offered to give Felix a cut if Felix would help him force Stark to pay the debt.

Felix said that he helped Erskine grab Stark and wrestle him into a van. Felix then drove the van as Erskine taped up Stark. They picked up Erskine’s brother, identified only as Kendall, and later picked up another man, identified only as Irvine. Felix heard Irvine say “The dude is dead.” Irvine then left the van.

According to Felix’s statement, Felix and Kendall drove Stark to Long Island, where Kendall decided to dump Stark’s body into a dumpster. They then set the body on fire.

At the time, Felix was a construction worker who had done some work for Stark but never met him. Felix said Erskine was his “boss.” He also said that the crime was cooked up by his cousin. The police acknowledge that Felix was “not the mastermind” behind the plan to rob Stark. They have not identified a motive for the crime, although Felix’s alleged confession would suggest that the death was the unintended result of a botched robbery. Any death caused in the commission of a felony can be charged as a murder under New York law.

Only Felix has been charged with Stark’s murder. The police say they do not have sufficient evidence to charge the other accomplices, although they once told the Daily News that they had identified the “main player” in a plot to rob Stark. Why Felix’s confession, assuming it is reliable, does not constitute “sufficient evidence” is unclear.

Expert Witnesses

The defense has asked the judge to exclude the confession from evidence on the ground that it was coerced. A confession that was not made voluntarily cannot be used as evidence in a criminal trial.

The defense supported its motion with the testimony of Marc Janoson, who holds a PhD in psychology. Janoson has testified as an expert in false confessions in more than a dozen other cases. Janoson based his opinions on psychological testing of Felix and on interviews with Felix and his mother.

Janoson testified that Felix told him that he falsely confessed because the police told him they would deport his parents and he would never see his children again unless he admitted guilt. According to Felix, they also told him that he would not need a lawyer because he was not under arrest. The police deny making those statements. The confession appears on videotape, although anything the police said to Janoson before the taping started is not recorded.

Janoson concluded that Felix was coerced. Janoson explained that Felix is particularly vulnerable to coercion. He testified that Felix showed signs of neurological impairment following a 2010 motorcycle accident and has an IQ of 87, placing him in the bottom fifth of the population.

Testifying as an expert witness for the prosecution, forensic psychologist Kathy Yates disagreed. She viewed Felix’s ability to hold a job at Riker’s Island and to pursue a food handling certificate as proof that he had the psychological capacity to knowingly waive his right to remain silent and to confess.

Based on her own interviews with Felix, Yates said that Felix has a careful thinking style and was likely faking memory loss after his motorcycle accident. Yates also attacked the quality of Janoson’s psychological training, criticized him for believing what Felix told him when his statements could not be verified, and asserted that Janoson did not ask enough questions.

Previewing the Trial

If the judge decides that the confession is admissible, expect the experts to clash again if the case goes to trial. The defense will likely use Janoson in an effort to persuade the jury that Felix’s confession is unworthy of belief. Yates will likely offer the opposite opinion.

Some testimony at the pretrial hearing, however, probably will not make it to the jury. For example, Yates testified that Felix is a “calculated liar” who minimized his role in the offense for personal gain. A judge is likely to conclude that it is improper for an expert to testify that a witness is lying or is a liar by nature, since credibility determinations are generally reserved for the jury, not for other witnesses.

Idaho Attorney General Decides Not To Press Charges After Review of Expert Reports and Evidence

The Idaho Attorney General’s Office announced that it will not file criminal charges against the two Adams County deputies who were responsible for shooting and killing a 62-year-old rancher last year.

Shooting Angers Idaho Community

Rancher Jack Yantis was killed last November when dispatchers called him and asked him to put down one of his bulls that had been hit by a car on U.S. Highway 95. When Yantis arrived at the highway with a rifle, he was shot by deputies Cody Roland and Brian Wood.

The shooting caused an uproar within the Council, Idaho community, with protests and rallies held asking for “Justice for Jack.” One protestor, Rebecca Borrow, articulated her thoughts, “(The shooting has) affected this whole community…It’s not safe, it’s not this little tiny community where kids can run around, not be watched…you don’t have to lock your doors. We’re not, we don’t trust the police department. We don’t know what’s going to happen anymore. If they can murder somebody in Council, Idaho, they can murder anyone in this nation.”

Investigations Reveal Evidence Not There to Support Conviction

The Idaho State Police and the FBI separately investigated the incident. The Idaho State Police investigation consisted of interviews with more than 40 people and the review of multiple forensic reports. Captain Bill Gardiner released a statement regarding the investigation, “I commend our detectives for their dedication in completing a thorough investigation of this incident in light of the unique circumstances presented…We appreciate the patience displayed by the individuals involved, as well as the public during the investigation.”

After a review of the investigation, Attorney General Lawrence Wasden announced that his office will not file criminal charges against the two deputies who shot and killed Yantis. Wasden stated that after a review of more than 5,000 pages of reports, lab results, evidence was “insufficient to support a conviction beyond a reasonable doubt.”

At a news conference to the community, Wasden stated, “This is a tragic event…This is catastrophic to a community. I wish there was a different outcome, but I don’t have the ability to do that. But my duty, my obligation, my responsibility is to make certain that justice was done.”

Witness Accounts and Shell Casings

Wasden’s office released new details about the shooting. According to the report, Deputy Wood called Yantis to respond to his bull that was “injured and not very happy.” When Yantis arrived, the deputies became concerned about the safety of others because of the direction that Yantis was aiming his gun. The deputies report that Yantis was pointing his rifle toward the bull, but also toward the crash scene, where emergency workers were still assisting the crash victims. However, Yantis’ family members report that his gun was pointed toward the ditch, not the accident scene. The deputies saw that after they intervened, Yantis pointed his rifle toward Deputy Roland and fired a shot. The deputies then fired at Yantis, who was shot 12 times.

The four witnesses to the incident, Wood, Roland, Yantis’ wife, and Yantis’ nephew, gave conflicting accounts of what happened, disagreeing on whether Yantis fired his rifle. However, the report noted that “In addition to the 20 spent shell casings from the deputies’ guns, a .20 caliber round was found at the scene and Yantis’ .204 rifle had an empty shell casing in the chamber. The FBI ballistics expert who tested the .20 round was unable to conclusively determine whether it came from Yantis .204.”

Wasden’s office was under criticism for taking so long to release the details of the investigation, but he says that the final pieces of evidence, including an interview with one of the deputies and the ballistics testing, were not received in his office until June.

North Carolina Death Penalty Defendant Offers Trial Strategy Expert Witness

Defense attorneys for a North Carolina man have asked a death penalty expert witness to submit a report to the trial judge which questions prosecutorial strategy in a murder trial. The case is an example of defense attorneys using an expert witness to cast doubt on prosecution witnesses who are offered deals in exchange for testimony against a lead defendant.

North Carolina Prosecutors Seek Accomplice Testimony in Murder Trial

Anthony Vinh Nguyen, 24, is on trial facing charges of first-degree murder, first-degree kidnapping, first-degree burglary and armed robbery in an incident which resulted in the death of Shelia Pace Gooden, 43, in October of 2013. Nguyen has been accused of shooting Gooden during a botched robbery attempt after he and two other men broke into her home and held her hostage in order to steal her $200 flat screen television. According to two accomplices, Nguyen fatally shot Gooden in the head during the robbery, but the defendant has maintained that he was not even with the two men that night and as such he did not take part in the robbery homicide.

Assistant District Attorneys Jennifer Martin and Ben White are the lead prosecutors in the case, and are asking for Nguyen to receive the death penalty if he is convicted. Nguyen’s two accomplices – Daniel Aaron Benson, 25, and Steve George Assimos, 24 – are also charged with first-degree murder, kidnapping, and burglary charges, however neither of them face the death penalty as both are likely to agree to testify against Nguyen in the upcoming trial.

Accomplices are frequently offered plea agreements in exchange for testimony against a co-defendant, but Nguyen’s defense attorneys – David Botchin and John Bryson – have called an expert witness to argue that the two men who claim Nguyen shot the victim are only saying what the DA is telling them to.

Expert Witness Report Questions Prosecutorial Strategy

Attorneys Botchin and Bryson have submitted papers indicating their intention to call Ernest L. Conner Jr., a criminal defense attorney, as an expert defense witness in death penalty cases and prosecutorial strategy. Connor submitted an affidavit to the court which explains that the focus of his expert testimony would be on the favorable treatment that the DA’s plan on giving Benson and Assimos, and how that treatment could unfairly influence their testimony against Nguyen. Although the prosecutors have not formally offered either man a plea deal in exchange for testimony, Connor has argued that the arrangement is likely.

Connor explained in his affidavit that the alleged accomplice testimony can still be influenced even if prosecutors have not offered plea agreements at this point in the proceedings. Connor, who has been involved with capital punishment litigation since 1992, dismissed the need for a specific deal for testimony by writing, “Since prosecutors must inform defense counsel of any formal plea offer, prosecutors often take advantage of an accomplice’s mere hope or expectation of leniency to be the motivating factor for the accomplice’s testimony.”

Further, according to Connor’s expert opinion, the fact that the DA’s have not sought capital charges against Benson and Assimos in the three years since the shooting “is an unspoken concession that implies lenient treatment is to come.” The prosecution has not formally objected to Connor’s proposed death penalty expert testimony, but will likely attempt to prevent him from testifying at trial.

Death Penalty Litigation Expert Testimony Faces Stiff Opposition

The proposed testimony by litigation expert Ernest Connor faces two primary hurdles during the pre-trial motion phase: first, prosecutors have not made any plea offer to either of Nguyen’s alleged accomplices, and second, the unusual expert testimony may not be permitted during trial. DA’s Martin and White have not talked about Connor’s proposed expert testimony directly, but have maintained that both Benson and Assimos have been cooperative from the start of the investigation and have not received plea agreements. Although Connor said that a lack of a deal was not important, the circumstances of the accomplice testimony may diminish his expert report.

The stiffer challenge which Nguyen’s defense team faces is whether Connor will be allowed to testify as a trial strategy expert witness at all. Expert witnesses walk a fine line between offering a permissible interpretation of facts and an impermissible opinion which could influence jurors, and Connor’s proposed testimony regarding the credibility of accomplice witnesses based on prosecutorial plea agreement strategy is squarely in a grey area. The case will proceed this week where prosecutors are likely to object to the defense’s proposed death penalty expert.

Oklahoma Man Turns to Psychiatry Expert Witness for Insanity Defense

A psychiatry expert witness provided a report that an Oklahoma man charged with murdering his father is mentally unfit to stand trial, setting the stage for a critical ruling on mental competency from the presiding trial judge. The case has gained attention in Oklahoma because the victim was a former state official, and the defendant has displayed signs of significant mental disorder.

Oklahoma Man Accused of Murdering his Father

Christian Costello, 27, is on trial for the fatal stabbing of his father, Mark, at a fast-food restaurant in August, 2015. According to witnesses, Christian attacked his father with a knife while in the restaurant and then continued the fatal assault outside in the parking lot after Mark attempted to flee. Mark Costello is the former labor commissioner of Oklahoma, and his death brought statewide attention on the question of whether or not Christian is mentally competent to stand trial.

Throughout the investigation into the crime, Christian Costello has been housed at a state run mental hospital where he has undergone a series of examinations in preparation for trial. Costello’s attorneys have argued that their client is legally insane, and the defendant gave a convincing show of his deficient mental state during this week’s competency hearing by admitting to killing his father because he was a hit man who was ordered to commit the crime as part of a “military operation.”

Despite the defendant’s odd behavior, proof of legal insanity requires more substantial evidence, which attorneys for Costello attempted to provide by calling a psychiatrist expert witness to provide an expert report supporting the insanity defense.

Psychiatry Expert Witness Testifies to Legal Insanity

Dr. Jason Beaman, the chair of the Department of Psychiatry and Behavioral Science at Oklahoma State University, was hired as a psychology expert witness by Costello’s defense team and asked to write a report on the defendant’s competency to stand trial. Dr. Beamon returned a 39-page report which detailed Christian Costello’s long history of mental health issues including schizoaffective disorder, which is a mental illness causing hallucinations, delusions, depression, and mania.

In regards to the effect of Costello’s mental health issues on his competency to stand trial, Dr. Beaman wrote, “It is my opinion … that the defendant has the ability to appreciate the nature of the charges filed against him but he does not have the ability to consult with his attorney and rationally assist in the preparation of his defense.” Dr. Beaman went on to write that Costello could meet the legal requirement of mental competency if he underwent psychiatric therapy or training to help him understand the legal processes.

Costello Faces Uphill Battle for Insanity Defense

Dr. Beaman’s psychiatry expert witness report is interesting because it may not provide a strong enough pillar for an insanity defense to stand on – particularly if the trial judge is willing to delay proceedings while Costello undergoes further evaluation or therapy. Further, Costello’s attorney told reporters that he believes his client was legally insane at the time the attack occurred, telling the press, “I think that’s just the way he is, and I don’t think he knew what he was doing when he killed his father.” Dr. Beaman’s report, however, did not say Costello didn’t understand the consequences of his actions, but instead focused on his ability to contribute to his own defense – a distinctly different proposition.

With a middling endorsement of the insanity defense from the defense expert witness which does not quite support Costello’s attorney’s position, the defense team may have a difficult time convincing the court to accept an insanity plea. The insanity defense remains a difficult prospect for any defendant as attorneys must use a psychiatry expert witness to not only show a mental defect, but also demonstrate that the defendant did not know their actions were wrong, could not understand the consequences of their behavior, and are unable to contribute to their own defense.

Depending on Oklahoma’s insanity plea laws, Costello’s proposed defense faces a stiff challenge. The proceedings are on hold while the court awaits the results of an evaluation by a court appointed psychiatrist before moving forward.

Expert Says That Kendel Felix May Have Falsely Confessed To Murder

An expert witness has testified that Kendel Felix, who is charged with the murder of a Brooklyn landlord, is susceptible to making false confessions.

Marc Janoson, PhD in psychology, testified that Felix has psychological traits that make him “more likely than the average person to admit to a crime he didn’t commit.” Janoson is a licensed psychologist who has specialized in psychological assessment for over 30 years.

Janoson testified that Felix “has vulnerabilities that the literature has associated with false confessions.” Janoson said that his opinion was based upon his interviews with Janoson and his mother in addition to psychological tests that were given to Felix.

Janoson stated that Felix has an IQ of 87, which puts in in the bottom fifth of the population for intelligence level. He also opined that Felix showed signs of neurological impairment as a result of a 2010 motorcycle accident.

Confession

During their interviews, Felix told Janoson that the investigators had pressured him into confessing, threatening that they would deport his parents and that he would never see his children again. Felix says that he was told that he did not need a lawyer and that he was not under arrest. Janoson reports that Felix was told, “If you give us the information we need, you can go home.”

Felix is charged with the murder of Menachem Stark. Felix confessed his involvement in Stark’s murder in a taped interview and in written statements. He confessed after the police asked him whether his father, a preacher, had taught him to tell the truth. Felix detailed how he served as the driver when a group of men snatched Stark from the front of his office on January 2, 2014.

The Case

Felix was arrested in April 2014. He explained that he was approached by someone named “Erskine,” who said that Stark owed him money and that he would give him a cut it he helped scare Stark. Felix also said that men named “Kendall” and “Irvine” had a part in the murder.

In his confession, Felix told investigators that, “I was scared s—less. This was not my thing.” He admitted to paying for the gasoline, but said that he did not light Stark on fire. Felix had worked as a carpenter in one of Stark’s properties, but did not personally know him.

NYPD Detective Christopher Scarry was one of the people present during Felix’s interview. Scarry said that, “He (Felix) was quiet, lazy, laid back, a follower, definitely not the mastermind of this.”

Stark’s half-charred corpse was found in a Long Island dumpster. Felix was the only person charged with his killing.

Stark was a member of the Hasidic Jewish community in Brooklyn. He and his business partner had built a portfolio of 1,000 units. Last November, 50 tenants of one of Stark’s rental properties were evicted when the Department of Buildings posted a notice to vacate based on the building’s “questionable structure integrity.”

If convicted, Felix faces 50 years to life in prison.

Former Alabama House Speaker Challenges Corruption Conviction Citing Expert Testimony

The former Alabama House Speaker who was convicted of corruption charges in June has appealed his case by citing improper expert testimony. According to the appeal, the trial court erred by allowing a state ethics expert witness to take the stand, and further erred by allowing him to provide an inaccurate picture of Alabama ethics rules.

Expert Testimony Aids in Alabama Speaker’s Conviction

Earlier this year, the former Alabama House Speaker Mike Hubbard (R) was convicted of 12 ethics violations for using his political position to secure favorable contracts for companies he owned. Prosecutors demonstrated that Hubbard’s companies had been awarded up to $2.3 million in government contracts in violation of the state’s ethics law. The state bolstered its case with testimony from the former director of the Alabama Ethics Commission Jim Sumner, who took the stand as an ethics expert witness.

Sumner explained Alabama ethics law, which prohibits state government officials from using political office to benefit themselves or a business in which they hold interest. Sumner also testified that Hubbard was well aware of the relevant ethics laws, but the former Speaker did not make an effort to consult the ethics board when engaging in questionable behavior. With the aid of Sumner’s expert testimony, Hubbard was convicted and sentenced to serve four years in prison, eight years probation, and pay a fine of $210,000.

This week, Hubbard file a motion to the court appealing his conviction by arguing Sumner’s testimony should have been disallowed as an impermissible, and incorrect, opinion of Alabama ethic’s law.

Mike Hubbard Cites Error in Expert Testimony in New Trial Motion

In a 39-page motion detailing the problems with the prosecution’s interpretation of Alabama ethics law and requesting either a dismissal of all charges or a new trial, Hubbard provided an in depth argument against Sumner’s expert testimony. According to Hubbard, Sumner’s testimony was faulty for two reasons: 1) he offered opinion testimony, which is impermissible; and 2) he was wrong in his opinion of Alabama ethics law. Alabama’s laws of evidence allow expert witnesses to explain facts or laws in a way that jurors are able to understand, but does not allow experts to provide their opinion on how facts or laws should be interpreted. According to Hubbard’s appeal, Sumner’s ethics expert analysis violated this rule because he told jurors what the language of Alabama ethics law meant. Hubbard claims that Sumner provided his own interpretation of Alabama ethics law, which should have been disallowed by the trial court.

Hubbard also argued that the problem with allowing Sumner to provide his opinion of Alabama’s ethics law was compounded because the expert was incorrect in his interpretation. Hubbard’s motion for a new trial alleges that Sumner’s expert testimony encouraged an overly broad interpretation of the state’s ethics code which encouraged criminalization of behavior which was not intended when the rules were passed. Sumner allegedly misinterpreted Hubbard’s contracts with the state of Alabama as illegal activity, and failed to properly explain certain exceptions to the ethics code which Hubbard claims applied to his case.

Hubbard’s motion for a new trial concludes by arguing that prosecutors improperly called an ethics expert witness whose opinion of the relevant law aligned closely with their own, and the trial court erred by allowing the jury to consider Sumner’s testimony.

Alabama Criminal Court to Consider Hubbard’s Motion for a New Trial

Prosecutors have yet to respond to Hubbard’s motion for a new trial, but have asked the Court to reconsider the defendant’s sentence. According to prosecutors, Hubbard should also have been ordered to pay $1.1 million in restitution for his corruption conduct based on previous sentences for similar actions by officials. Prosecutors requested the additional restitution during sentencing, but were unable to provide legal precedent until a post-conviction motion. Given Hubbard’s recent appeal, the state’s attorneys will be forced to shift focus to a motion defending their use of an expert.

Hubbard remains out of jail on bond while the Judge considers post-conviction appeals and motions, and with the importance of the upcoming ruling on his motion to dismiss charges and overturn the conviction, the case will likely take several more weeks or months to resolve. Should Hubbard be granted a new trial, prosecutors will need to reassess how they use their ethics expert witness to avoid overstepping the boundaries placed on expert testimony.

Defective Product Lawsuit Against Bayer Fails Without Medical Expert Testimony

A defective medical products claim with 1,300 joint female plaintiffs has been dismissed four months after a New York federal judge prohibited medical expert witnesses from testifying. The case has limped along since the plaintiffs suffered a devastating ruling against their expert testimony this year before finally being put to rest last week for lack of evidence against the device manufacturer.

High Profile Defective Device Lawsuit Dismissed in New York Federal Court

US District Judge Cathy Seibel in New York dismissed a complaint filed by 1,300 women against medical device manufacturer Bayer for lack of evidence the company caused the plaintiffs’ injuries. The claim originated from complaints about Bayer’s Mirena intra-uterine contraceptive device (IUD) which allegedly perforates women’s uteruses after it has been surgically inserted. According to the plaintiffs, the Bayer Mirena IUD caused internal injuries after surgery, and the company failed to provide warning about that possibility when it marketed the product to surgeons and patients.

Bayer has not denied the fact that the 1,300 plaintiffs suffered internal injuries, but responded to the complaint by arguing that the damage occurred during surgical insertion and is therefore the responsibility of the doctors and hospitals rather than the company. The company also warns about the possibility of uterus perforation during insertion, and argues the plaintiffs understood the risks associated with the product. Bayer has maintained the position that the Mirena IUD is not defective throughout the lawsuit, and successfully argued for a dismissal last week by showing that the plaintiffs failed to provide evidence that injuries occurred after surgical insertion due to a defect in the device.

Bayer’s argument for dismissal was made easier in March when Judge Seibel dismissed expert witnesses hired by the plaintiffs to argue that the Mirena IUD can cause internal damage.

Plaintiffs in Bayer IUD Case Lose Expert Witness Testimony

At the outset of the case, the 1,300 plaintiffs hired medical expert witnesses to conduct an analysis of the types of injuries they suffered and Bayer’s Mirena IUD product to see if a defect contributed to their harm. The plaintiffs’ expert witnesses included two ob-gyn professionals and a uterine physiologist who were prepared to testify that the uterus perforation occurred after the IUD’s were inserted due to a defect in the design and manufacture. After reviewing the content of the proposed expert testimony, Judge Seibel banned four of the experts from testifying at all and severely limited two others to the point where they would have been of very little help to the plaintiffs’ case.

According to Judge Seibel, several of the Bayer IUD plaintiffs’ experts were unqualified to speak on the issue, and those who were offered opinions and hypotheses rather than proven fact. The judge determined that the expert testimony was not based on sound scientific findings, but instead on anecdotal theories prepared specifically for the litigation by a collection of medical professionals. Under the Daubert standard of expert witness testimony used in federal courts, the plaintiffs’ experts could not be allowed to testify without providing scientifically accepted research.

Judge Seibel further weakened the plaintiffs’ position by allowing several of Bayer’s expert witnesses to testify because they had documented medical research regarding the performance of the company’s Mirena IUD.

Bayer Mirena IUD Lawsuit Fails after Lawyers Forego Expert Testimony

Rather than abandon the case or seeking other qualified experts after Judge Seibel’s decision against the plaintiffs’ expert witnesses in March, attorneys representing the women decided to pursue the case without medical expert support. According to the attorneys, Bayer’s admission that the women’s harm was caused by the Mirena IUD was sufficient to prove liability, despite the fact that Bayer argued the injuries occurred during insertion – something the company warned about and was not liable for.

Ultimately the strategy to move forward without viable and qualified medical expert witnesses failed, and the dismissal of the complaints against Bayer last week confirms an outcome that many have suspected was forgone. The failed lawsuit against Bayer’s Mirena IUD provides a cautionary tale to plaintiffs and their attorneys that defective product lawsuits are unlikely to succeed without qualified medical expert testimony. Medical experts must be ready to provide testimony which is supported by scientific research, not prepared specifically for the trial, and backed by the expert’s qualifications in the field.

False Confession Expert Testifies in Brooklyn Murder Trial

A New York man charged in the kidnapping and murder of a Brooklyn real estate magnate has called on a psychology expert witness to testify that he falsely confessed to the crime. The high profile case provides another example of how behavioral science expert testimony is being worked into the legal system, and the outcome could influence the use of false confession research by courts in the future.

Brooklyn Murder Suspect Confesses to Role in Kidnapping

Brooklyn native Kendel Felix was arrested for his alleged involvement in the January 2^nd, 2014 kidnapping and murder of real estate mogul Menachem Stark. Stark was taken from the front of his office during a snowstorm, and his partially burned body was later recovered in a dumpster on Long Island. Three months after the murder, police arrested Felix and three other co-defendants in connection with the crime, but only Kendel has been charged with murder. Felix has been singled out in part because of a taped confession he provided to police officers in which he admitted to taking part in the crime by driving and helping to buy gasoline used to burn Stark’s body.

Felix claimed that he did not plan the crime, but his confession has nonetheless become the center piece of the trial against him. If convicted, Kendel faces 50 years to life in prison, and his attorneys have attempted to attack the confession evidence with a pre-trial hearing featuring false confession expert testimony. Attorneys for Felix reached out to a psychology expert witness with experience in false confession research to testify that the defendant was vulnerable to police persuasion which may elicit admission to a crime he did not commit.

False Confession Expert Testifies in New York Murder Trial

According to expert testimony from Dr. Marc Janoson during a pre-trial hearing in front of Brooklyn Supreme Court Justice Neil Firetog, Kendel Felix may have falsely confessed to the kidnapping and murder. Dr. Janoson has a PhD in psychology, and is an experienced false confession expert witness with years of research on the subject. Dr. Janoson has been called to testify in several criminal trials, and told Judge Firetog that Felix has “vulnerabilities that the literature has associated with false confessions.”

Dr. Janoson conducted several one on one interviews with Felix after the defendant’s arrest, and testified that in his expert opinion Kendel suffered from a low IQ of 87 and memory loss which made him more likely to falsely confess. Dr. Janoson also talked about the police investigation, during which officers told Felix that his parents could be deported if he didn’t confess and that he would never see his three children again. The police also dissuaded the defendant from talking to a lawyer. When talking about the methods the police used while questioning Felix, Dr. Janoson told the court “I would also add that if the reports he gave me on his interrogation were correct, there was a great deal of coercion.”

Dr. Janoson cited research on false confessions which demonstrates that low intellect individuals subject to heightened police pressure are at an increased risk to admit to a crime that they did not commit. During his expert testimony, Janoson explained the existing research on false confessions and highlighted the attributes of Felix’s case which align with false confession literature. Prosecutors responded by calling a counter-expert to dispute Janoson’s claims.

Prosecution Calls Psychology Expert Witness to Dispute False Confession Testimony

In response to Dr. Janoson’s false confession expert testimony, prosecutors called psychologist Kathy Yates to dispute the defense’s claim that Felix was vulnerable to police coercion. According to Yates, the defendant had the intellectual capacity to understand his rights to speak with a lawyer, and faked his memory loss in an effort to avoid a long prison conviction. During her testimony, Yates looked to Felix and directly contradicted Janoson’s testimony by saying, “I apologize for my colleague yesterday for saying you were brain damaged and below intellect.”

The success of Felix’s false confession expert witness remains to be determined, but the case represents an interesting use of experts in criminal trials. False confession expert witnesses have grown in popularity as research into the phenomenon expands, but even renowned experts have experienced difficulty convincing judges and juries that a suspect can admit to a crime he did not commit. Despite the uphill battle false confession experts face, psychologists in the field may be called upon by defense attorneys who seek to challenge evidence which is historically a strength for prosecutors.

Expert Report Finds Cleveland Police Responsible For Death of Mentally Ill Woman

A new expert report has found the Cleveland police responsible for the death of 37-year old Tanisha Anderson.

Tanisha Anderson’s Death

According to the suit filed by Anderson’s estate, on November 12, 2014, Anderson’s family called 911, seeking mental help assistance for Anderson. Anderson suffered from bipolar disorder and schizophrenia and had recently been released from a mental health facility. When the police arrived, they placed Anderson in a zone car and she became agitated. The responding officers pushed Anderson to the ground and placed pressure on her back while handcuffing her. Anderson lost consciousness and stopped breathing. She eventually died.

The Cuyahoga County Coroner determined the Anderson’s cause of death to be “Sudden death associated with physical restraint in a prone position in association with ischemic heart disease and Bipolar disorder with agitation.”

The estate of Tanisha Anderson filed a lawsuit in federal district court against the City of Cleveland and Officers Scott Aldridge and Bryan Myers. Anderson’s mother, Cassandra Johnson, says that she is “hopeful this will finally bring justice for Tanisha” and that this case “has been passed off from one agency to another for nearly two years.” The suit alleges excessive force and denial of medical care, wrongful death, assault and battery, and a violation of the Americans with Disabilities Act.

Expert Report from Former Deputy Chief of Police of Los Angeles Police Department

Anderson’s family retained Lou Reiter as an expert witness. Reiter is the former Deputy Chief of Police of the Los Angeles Police Department and served as a police officer for over twenty years. After his retirement, Reiter has been a police consultant in police training and management, including the investigation of critical incidents, Internal Affairs, liability management, and policy and procedure development. Reiter is the author of the manual Law Enforcement Administrative Investigations and has been retained as an expert witness in over 1100 police-related cases.

Reiter reviewed the court records, medical records, depositions and witness interviews, and police files in Anderson’s case. Reiter opined that “The City of Cleveland, Cleveland Division of Police, in my opinion based upon my specialized knowledge, skills and training and my review of the documentation in this litigation, exhibited deliberate indifference in its training, supervision and policy development by not addressing the known, common field risks of positional asphyxiation. Officers Aldridge and Myers failed to follow basic precautions when restraining Tanisha Anderson in the prone position and caused her injuries due to positional asphyxia. Their actions were consistent with the City’s critical lack of policy, training and supervision regarding the dangers of positional asphyxiation.”

Reiter further found that the officers used “unreasonable and excessive” force in their encounter with Anderson and that they “failed to use reasonable and generally accepted police practices in failing to provide medical care for Ms. Anderson.” Reiter also found that “there was absolutely no excuse to not place Ms. Anderson in a position of less restraint, remove her handcuffs or begin any form of immediate first aid.”

The lawsuit is pending in United States District Court in the Northern District of Ohio as Case No. 1:15-cv-0027 before Judge Donald C. Nugent.

Plaintiff Earns New Medical Malpractice Trial Due to Expert Witness Testimony

A Pittsburgh woman who lost a malpractice lawsuit has been granted a new trial because a lower court erred by restricting medical expert testimony that would have bolstered her case. According to a Pennsylvania Superior Court, the plaintiff had a right to present the full testimony of a medical diagnosis expert witness who was called to help her explain why a Pittsburgh area hospital was negligent in responding to her symptoms.

Pittsburgh Woman Files Medical Malpractice Suit for Failure to Diagnose Breast Cancer

In 2009, Maria Heddleston gave birth to a child at the University of Pittsburgh Medical Center, and, as part of her care, received a breast-feeding consultation which included instructions about how to operate a breast pump machine. During the consultation and training, Heddleston complained of severe breast pain when she pumped, but this was not investigated by the attending nurses or physicians at the facility. Maria was diagnosed with breast cancer in 2010, and she sued the Obstetrical and Gynecological Associates of Pittsburgh Inc. and other individual defendants for failing to run diagnostic tests which would have given her an earlier cancer diagnosis.

During trial, Heddleston claimed that by delaying the diagnosis almost a full year, her risk of death increased. After a civil trial in Pittsburgh, a jury returned a verdict 10 – 2 in favor of the defendants, finding that the Heddlestons had failed to prove medical malpractice. On appeal, the plaintiffs argued that the trail court made an error when the judge disallowed expert witness testimony which would have affirmed the Heddleston’s argument that a diagnostic test run in 2009 would’ve caught the breast cancer early.

Judge Grants New Trial with Instructions to Include Expert Witness

During the initial trial, the plaintiffs called Dr. Barry Singer as a medical expert witness, and as part of his testimony was asked if diagnostic testing in 2009 would have caught Maria Heddleston’s cancerous tumor. Before Dr. Singer could answer, defense counsel objected, arguing that the expert testimony should have been restricted to facts about the standard of care expected by gynecologists and not the doctor’s opinion about the results of a hypothetical diagnostic test. The trial judge agreed, and the defense successfully argued during closing arguments that the plaintiffs could not prove a 2009 diagnostic test would’ve caught the cancer.

On appeal, Judge Mary Jane Bowes disagreed with the trial court, and held that Dr. Singer’s expert testimony regarding the outcome of a 2009 diagnostic test would speak to gynecological standard of care. According to Judge Bowes, Dr. Singer’s testimony that a 2009 diagnostic test on Maria Heddleston would’ve identified early stages of breast cancer suggest a failed duty to live up to the standard of care required by treating gynecologists who offer breast feeding consultations. Dr. Singer did not state during his testimony that such tests are required or even standard, but his information regarding the result of a test would, according to Bowes, give jurors the opportunity to better evaluate the level of medical care Heddleston should have received.

Pittsburgh Woman gets Second Chance at a Medical Malpractice Trial with Expert

Judge Bowes concluded that the Heddlestons deserved a new trial because of the trial judge’s failure to allow the plaintiff’s medical expert witness to theorize on the results of a 2009 cancer diagnostic test which was not conducted. This ruling demonstrates the fine line that medical malpractice experts walk between a permissible explanation about standard of care practices which medical professionals are expected to follow and impermissible testimony which opines about whether or not that standard has been met.

Medical expert witnesses like Dr. Singer in this case are typically allowed to discuss the standard of care, and then give their expert opinion on the medical care a plaintiff actually received. It is up to the jury to compare the expected standard of care with the actual care a patient received in order to issue a verdict. In this case, the appellate judge determined that a medical expert’s opinion the result of an diagnostic test which was not run did not translate to his opinion on the quality of the care the plaintiff received, and was therefore permissible expert testimony.

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