Category Archives: In the News

Articles about legal issues currently in the news.

Expert Witnesses Testify in New York Vehicular Murder Trial

A variety of expert witnesses were called by prosecutors last week in the trial of a Florida man accused of intentionally striking a New York State Trooper with his car. Experts in vehicle collisions and blood splatter took the stand as prosecutors look to show the jury that the incident was not negligent, but a willful criminal act targeting a police officer engaged in a traffic stop.

Florida Man on Trial for Fatally Striking New York State Trooper

Almont Upton, 62, of Melrose, Florida struck, and killed, NYS Trooper Christopher Skinner with his car in May of 2014. Officer Skinner was conducting a traffic stop on a New York highway when Upton hit him, leading to his arrest and first-degree murder charge. Prosecutors dropped several other charges, including assault and reckless driving, in order to focus 100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the case on earning a murder conviction, and not confuse jurors with other available charge options.

Upton’s defense team has proposed that the defendant could not have intentionally murdered Trooper Skinner due to a mental disease or defect which impaired his decision making at the time. Although the defense has not expanded on its defense yet, prosecutors attempted to counter the argument that Upton did not act intentionally by calling expert witnesses to explain how the nature of the collision with Trooper Skinner suggested malice and intent necessary for a murder conviction.

Expert Witnesses Testify in Almond Upton Murder Trial

Last week, prosecutors called New York State Police Collision Reconstruction Expert Travis Webster to take the stand and explain the evidence found at the scene of the collision. Webster, a state investigator who focuses on accident reconstruction, evaluated the evidence and provided testimony which supported the prosecution’s theory that Upton acted intentionally. According to Webster, Upton was traveling at 93 miles per hour when he hit Trooper Skinner, and had his accelerator pedal “100 percent to the floor.” Further, Webster’s accident reconstruction expert analysis revealed that the defendant never activated his brakes, which suggests Upton did not demonstrate any effort to avoid hitting Skinner with his pick-up truck. Finally, Webster concluded that there was nothing wrong with Upton’s truck which would have prevented him from steering out of the way or applying the brakes.

New York State Police Sr. Investigator Steve Anderson was also called to the stand as a blood stain analysis expert witness. Investigator Anderson walked the jury through the blood stains on the hood and windshield of Upton’s truck which was caused by a direct strike on Trooper Skinner. Anderson also pointed out blood stains on the tailgate of the vehicle, supporting the prosecution’s contention that Upton struck Skinner at a high rate of speed with intent to hit and kill him. Anderson concluded his expert testimony by explaining that he oversaw the autopsy of Trooper Skinner and collected his clothing from the scene in order to obtain evidence for trial.

Upton’s attorneys did not aggressively question the prosecution’s expert witnesses, choosing instead to dispute the motivation and mental state of the defendant rather than the circumstances of the fatal incident.

Prosecution Presents Case for Murder while Upton Defense Prepares Insanity Plea

After presenting its accident reconstruction and blood splatter expert witnesses, prosecutors argued that Almond Upton’s actions demonstrated “precision driving” and sufficiently reached the level of intent necessary to earn a first-degree murder conviction. Prosecutors argued that the testimony from their accident reconstruction expert shows Upton aimed to kill Trooper Skinner with his car while the officer was distracted and vulnerable before he later sideswiped two other vehicles as he attempted to make his high speed escape.

Defense attorneys representing Almond Upton will take their turn as the trial continues this week, and will undoubtedly call a mental health expert witness who will testify to the defendant’s mental state at the time of the accident. The legal standard for insanity typically requires a defendant prove he did not understand or appreciate the consequences of his actions while committing the crime, and the evidence from the state’s accident reconstruction and blood splatter experts which suggests Upton acted with malice makes the defense strategy a longshot, regardless of future expert testimony supporting mental defect.

Experts Play Key Role in Ohio Murder Trial Involving One of Six Missing Women

It took a jury just three hours to convict Jason McCrary of the murder of Timberly Claytor. Claytor was one the six women who went missing over a year-long period of time in Chillicothe, Ohio. The story of the six women was the subject of a true crime documentary on Investigation Discovery, titled “The Vanishing Women.”

McCrary’s Defense

McCrary had taken the stand and testified in his own defense, telling the jury that Ernest “Dolla Bill” Moore III was Claytor’s killer. McCrary testified that he had met Claytor at a gas station and they agreed that he would pay her money for sex. McCrary said that Claytor asked him to drive her to a parking lot where Moore walked out of a home and asked for a ride in exchange for drugs. McCrary said that, while he was driving, Moore and Claytor got in a fight, which eventually resulted in Moore shooting Claytor.

McCrary’s trial lasted five days. Much of that time was spent with expert witnesses for both prosecution and defense.

Expert Testimony During the Trial

Defense called Detective Robert Moledor of the Cellular Analysis Survey Team to testify about cellphone towers and communications. Moledor testified about the cell phone records of two separate numbers: one with a 614 area code and one with a 740 area code. Moledor detailed the several calls coming and going from the phones on the date of Claytor’s murder and testified that the geography of the land could have interfered with the signal of the calls, causing them to be routed to a tower in a different area from where the phone was actually used.

Matthew White, firearms examiner for the Ohio Bureau of Criminal Investigation examined the three bullets that were found in the investigation. He testified that all three of the bullets were .380 caliber, but he was unable to determine if they were all fired from the same weapon.

Todd Fortner, a BCI special agent, provided the details of the scene where Claytor’s body was found. Fortner testified about the bullet holes and blood evidence that was found on the car and that some of the blood appeared as though someone had attempted to wipe it away.

Dr. Bryan Casto, forensic pathologist for the Montgomery County Coroner’s Office, testified that Claytor had suffered three gunshot wounds to the left side of her head and a wound to her left hand. He was unable to determine the order of the shots, but noted that they occurred in close succession and were each potentially lethal. Casto also testified that the shots were fired within 1 to 2 inches of Claytor’s face.

Hallie Garofalo, a DNA forensic scientist with the BCI, testified that McCrary’s DNA was in the sperm sample that was found on Claytor’s body. Garofalo also testified that the shoes that were thought to be worn by McCrary contained samples of Claytor’s DNA.

McCrary will be sentenced by Judge Michael Ater of the Court of Common Pleas on August 12.

Expert Witness Report Alleges Negligence in Prison Death

A new expert witness report alleges that Burlington County Jail staff, including the nurses, were negligent in the 2014 death of inmate Jerome Iozzia.

Jerome Iozzia, 50-years-old at his death, was arrested in November 2013 when he used his fiancée’s car without permission. His fiancée accused him of having a history of drug abuse and the police say that he resisted arrest. During the arrest, Iozzia was sprayed with pepper spray. He was later transported to a hospital because he was reportedly suffering from heart palpitations. Iozzia had a pacemaker implanted and was released to the custody of the jail. He later died while still in jail custody.

Iozzia’s Family Files Lawsuit

Following Iozzia’s death, his family filed a $25 million lawsuit against the Burlington County Jail, Pemberton police, the state of New Jersey, the Department of Corrections, and prison personnel.

According to the lawsuit, the prison guards ignored the postoperative instructions regarding Iozzia’s care. An autopsy would also reveal that his prescribed medications were not present in his body at death. Iozzia died in jail on February 25, 2014, after reportedly passing out the night before. His death certificate states that he died of pneumonia/empyema/sepsis four days between onset and death.

A human rights organization, Amnesty International, requested that the state and federal law enforcement officials investigate the deaths of Iozzia and another inmate, 75-year-old Robert Taylor, who also died in prison.

Letters sent from Iozzia to his fiancée detail poor treatment from jail staff. He wrote, “Call my mom and tell her they are gonna let me sit here for ever (sic). And are not takin (sic) care of my heart. Got my meds all messed up. And still no follow up visit to adjust my pacemaker,” and “This thing in my chest is really starting to bother me. Need to get out of here to go back to Deborah hospital to get this adjusted, but they won’t send me back.”

Registered Nurse Files Expert Report Critical of Jail’s Staff

In the new expert report filed in court, a registered nurse with more than 20 years experience states that the Burlington County Jail staff was negligent in their duties, resulting in the death of Jerome Iozzia. The report was written by Helen Strasko, a Licensed Professional Registered Nurse in Manchester. Strasko was asked to review the hospital and jail medical records to evaluate the circumstances surrounding Iozzia’s death.

Strasko’s report details the many ways that the medical staff deviated from the Standards of Practice and protocols of nursing and the jail’s own standard operating procedures. The report also claims that the jail staff attempted to cover up their negligence by altering Iozzia’s medical care documents.

Strasko is expected to testify as an expert witness in the case against the Burlington County Jail.

The Burlington County prosecutors have previously stated that Iozzia’s death was not the result of criminal wrongdoing. However, doctors have stated that his death could have been prevented by proper physical care.

Robert Fuggi, the attorney representing Iozzia’s estate has stated that “[t]he prosecutor’s office should reopen the investigations of these two deaths…Somebody should be held criminally responsible.”

Missouri Governor Vetoes Daubert Bill

Missouri’s Governor, Jay Nixon, has just vetoed a bill that would have set stricter rules for expert witnesses.

The proposed bill, known as SB 591, would have required all of Missouri’s courts, including its probate courts, juvenile courts, and family courts, to follow the federal Daubert standard in determining whether to allow expert testimony.

The Daubert Standard

The Daubert standard has been adopted by the federal government and the majority of the states. Under Daubert, the judge plays a gatekeeper role in admitting scientific testimony. This requires that the trial court judge determine that an expert’s testimony is relevant and reliable before allowing that expert to testify. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 584-587 (1993). An expert’s testimony is relevant under Daubert if it will assist the jury in deciding the case and is based upon sufficient facts or data, is the product of reliable principles and methods, and the expert has applied the principles and methods reliably to the facts of the case. A judge also examines scientific testimony for whether the method can be and has been tested, whether it has been subject to peer review, the error rate, the standards of control, and the degree to which it has been accepted by the scientific community.

SB 591

SB 591 was sponsored by Senator Mike Parson, a Republican. It was passed by the Senate with a vote of 20-10. Parson stated that he filed this bill so that Missouri could use the “same standard used in federal courts and all but eight other states and should reduce ‘junk science’ used by so-called ‘experts’ in lawsuits involving farmers, small businesses and in criminal cases.”

SB 591 only narrowly passed the House 85-68 in April, with many Republicans voting against the bill.

The representative who handled the legislation in the house, Republican Kevin Corlew, said SB 591 would help decrease the costs of trials and bring efficiency to the courtroom. He noted, “We’ve had about 20 plus years to look at this in other states and studies have been done and actually showed that this standard will have the tendency decrease costs and shorten litigation…The reason for that is if the judge looks at the so called experts and determines that there’s no way they should have been testifying, the parties are going to have a clearer picture of the case. Judges would have cases disposed of earlier in the process and not have to go through a whole trial. Or the parties could come to a better settlement because they have a better idea of which case is stronger.”

Nixon has stated that this bill would make court proceedings more expensive and would limit recoveries for injured people.

It was expected that Governor Nixon would veto the bill. Lawmakers will have a chance to override Nixon’s veto during a short September session.

The National Federation of Independent Business, the Missouri Organization of Defense Lawyers, Missouri Prosecuting Attorneys Association, Missouri Petroleum Council, MSCPA, and Missouri Retailers Association are among the supporters of SB 591. The Missouri Association of Trial Attorneys, judges, and labor have voiced opposition to the bill, saying it would cause a court clog.

Fire Investigation Expert Witness Report Leads to New Trial for Chicago Man

A Chicago man convicted of setting a fire which killed two people in 1993 will receive a long awaited retrial due to evidence from fire science expert witnesses. Prosecutors in the case have relented to repeated requests from the defense and agreed to a retrial after reviewing an expert report detailing modern advances in fire science technology which call the initial conviction into question.

Chicago Man Challenges Arson Conviction

Adam Gray has been serving a life sentence without parole since his 1996 conviction for setting a fire in 1993 which killed two people in an apartment building. Gray, who was 14 at the time of the fire, was angry with his girlfriend and allegedly set the fire in a building where she and her parents resided. Although the girlfriend and her family were able to escape, an elderly brother and sister who lived above the family died as a result of the fire. In addition to a confession, which Gray now claims was coerced, prosecutors relied on the testimony from fire science expert witnesses to earn a conviction and life sentence.

During Gray’s initial trial, fire investigators testified that they found charring and burn patterns consistent with a hot fire which was set intentionally and spread with an accelerant. Police investigators found a milk jug behind the burned building which contained what appeared to be the accelerant used to fan the fire, and a gas station clerk connected Gray to a purchase of fuel shortly before the fire was set. In the years since the conviction, attorneys working for Gray have identified advances in fire science investigation techniques which raise questions about the validity of the conclusions by police and the testimony by fire expert witnesses.

Modern Fire Science Expert Witnesses Challenge Arson Conviction

When Gray recanted his confession after his conviction and life sentence, his new legal team set to work challenging the physical evidence which prosecutors used to argue the fire had been set intentionally. According to his defense team, advances in fire investigation techniques suggest that the fire was not an arson at all, and what the police believed to be an accelerant was not present at the scene. Fire expert witnesses John Lentini and Gerald Hurst produced fire investigation expert witness reports which challenged the initial findings of the investigation and prosecution of Gray.

According to Hurst, fire investigators who examined the remains in 1993 were too quick to conclude that the charring and burn patterns were evidence of an arson. In an expert witness report to prosecutors, Hurst claimed that the fire investigators at the time did not have cause to rule out a conclusion that the fire started and spread accidentally. Lentini contributed his expert evaluation of the fire by saying that the substance found in the milk jug – which police concluded was the accelerant Gray used to spread the fire – was not actually present at the scene. Lentini told prosecutors that the substance in the milk jug, and the substance found on the wood of the building, were not only different, but neither were effective accelerants which could have been used to spread the fire.

Gray’s defense team presented the new fire expert witness evidence to prosecutors over a year ago, however, they were met with resistance. After initial refusals to retry the case based on the new fire science evidence, Chicago prosecutors have finally relented.

Chicago Man to Receive New Arson Trial

After a year of refusals, prosecutors in Chicago have determined that the evidence presented by modern fire expert witnesses is sufficient to grant Adam Gray a new trial for arson and murder. While the joint motion by prosecutors and defense attorneys for a new trial still needs approval from a local judge, the agreement by the district attorney to retry the case likely means Gray will have another day in court in the coming months.

Although the change of heart likely has a lot to do with the upcoming arrival of a newly elected DA who unseated the incumbent in a recent election, the prosecution’s willingness to retry a case with new expert witness testimony is an encouraging sign for other Chicago area defendants seeking to have convictions overturned based on advances in modern science.

Serial’s Adnan Syed Granted New Trial Due to Questions of Expert Witness Reliability

The subject of the first season of the popular legal podcast Serial has been granted a new trial in large part due to questions about the reliability of the prosecution’s cell phone expert witness used to convict him. An appellate court vacated the murder conviction of Adnan Syed citing the failure of his attorney to challenge the prosecution’s cell tower expert witness over some flawed logic, giving Syed an opportunity to pursue a re-trial with a different lawyer. Prosecutors have promised to appeal the ruling, but should it stand then they will need to prepare for a second murder trial.

Serial’s Adnan Syed Granted a New Trial

Late last month, Judge Martin P Welch of the Baltimore City Circuit Court granted a motion by Adnan Syed requesting a re-trial for the 1999 murder of his former girlfriend Hae Min Lee. Syed, now 35, was 17-year-old when he was convicted in 2000 for Lee’s murder, and has spent the last 16 years serving a life sentence in Maryland. In 2014, the podcast Serial introduced Syed’s case to the nation, and opened up the opportunity for attorneys to question the legitimacy of the evidence used to convict the defendant, particularly testimony from a cell phone tower expert witness called by prosecutors.

During post-conviction hearings in February of this year, Syed’s attorneys presented new evidence of an alibi witness and raised questions about the validity of the prosecution’s cell phone expert. According to Syed’s current counsel, his lawyer during the initial trial was “grossly negligent” by failing to pursue all the possible evidence which could help her client, including a counter expert who could have raised doubts about the prosecution’s case. Defense attorneys representing Syed called the ruling an important victory, but cautioned the process is far from over as the Baltimore District Attorney still has the opportunity to appeal Judge Welch’s ruling before having to re-try Syed for Lee’s murder.

Syed Motion for New Trial Focuses on Shaky Expert Testimony

One of the central figure’s in Syed’s 2000 murder trial was a cell phone tower expert witness who the prosecution used to place the defendant at the scene of Lee’s burial. In 2000, the state called FBI Special Agent Abraham Waranowitz to testify about how cell phone tower triangulation could identify a person’s location. Waranowitz discussed two incoming calls to Adnan’s cell phone which arguably made it likely that he was located in an area where Lee’s body was later found at a time shortly after her death. Waranowitz’s expert witness testimony was one of the key pieces of evidence prosecutors used to connect Syed to Lee’s death, but the expert’s reliability became a matter of interest for Adnan’s post-conviction defense team.

According to Syed’s legal team, his initial lawyer received a communication from AT&T which provided instructions on how to read and interpret cell phone activity with a notable disclaimer regarding locating phones that read, “Outgoing calls only are reliable for location status. Any incoming calls will not be reliable information for location.” Waranowitz’s expert testimony focused only on incoming calls, which, according to the AT&T information, are not reliable for location identification, however, Syed’s trial attorney declined to press the expert on that information. Attorneys for Syed argued that this failure to properly cross-examine an expert witness represented a grossly negligent failure by Adnan’s trial lawyer.

Appeals Judge Grants Adnan Syed a New Trial Citing Expert Testimony

Judge Welch agreed with Syed’s legal team, and found the failure to question the state’s cell phone tower expert about a notable flaw in his conclusion to be a key factor in granting the defendant a new trial. Judge Welch pointed out the state’s expert was “directly contradicted by the disclaimer” and went on to note that “A reasonable attorney would have exposed the misleading nature of the state’s theory by cross-examining Abraham Waranowitz. The record reflects, however, that trial counsel failed to cross-examine Waranowitz about the disclaimer.”

Judge Welch’s ruling does not guarantee Syed a new trial, but with a sound legal reasoning and legitimate questions about the reliability of the expert witness who helped put the defendant in jail, Adnan’s legal team has expressed optimism that the ruling will survive appeals. Should Adnan Syed be officially granted a new trial, his high-profile legal team will certainly present new cell phone expert witness testimony to contradict the state’s key piece of evidence which connected Syed to the scene of Lee’s burial.

Expert Witnesses Barred In Mirena IUD Case

The plaintiffs in a lawsuit against Bayer Healthcare recently faced a legal hurdle when four of their expert witnesses were barred from testifying. Bayer Healthcare is the maker of the Mirena intrauterine device or IUD, a contraceptive. Plaintiffs claim that the Mirena IUD can puncture the uterus and end up elsewhere in the body.

Plaintiffs in the lawsuit are 1,200 women who filed lawsuits against Bayer Healthcare. These lawsuits were consolidated. The women bringing these suits claim that Bayer failed to warn of the risk that the IUD could puncture the uterine wall, an injury called a secondary perforation. A secondary perforation is a risk even when it is inserted correctly by a physician.

Expert Witnesses

Plaintiffs’ expert witnesses included two ob-gyn witnesses and a uterine physiologist. Judge Cathy Seibel ruled that plaintiffs’ experts were either unqualified to testify, unreliable, or both. She allowed two of plaintiffs’ other experts, but limited the scope of their testimony. She also limited the scope of two of Bayer’s witnesses. Judge Seibel found that excluded witnesses’ testimony was based on hypothesis rather than scientific evidence. She stated that one of the experts “was given a conclusion by lawyers and worked backwards to hypothesize a mechanism by which it might occur” and criticized another expert’s opinions for lack of support by the medical community.

Bayer contends that these women have no case because they haven’t shown that they were injured or that the Mirena IUD is to blame. On May 4, 2016, Bayer filed a motion for summary judgment, arguing that the plaintiffs will not be able to prove that the IUD could puncture the uterine wall, even if properly inserted, because nearly all of their experts have been excluded.

The Case

The women argue that they can prove their case without experts and assert that Bayer’s own admissions about the dangers of Mirena are enough to prove their case. They state that “[f]or years, Bayer has admitted – everywhere but in the courtroom – that Mirena can perforate the uterus after being properly inserted.” They argue that “A party’s admissions are admissible evidence, and when such evidence shows that a defendant has admitted general causation — that is, admitted that the complained — of injury can occur – no expert testimony on that subject is required.”

In January 2013, the FDA approved Bayer’s IUD called “Sklya,” a slightly smaller version of Mirena. Sklya comes with a warning label that warns that uterine perforation may occur “most often during insertion” but may not be detected until later. This same language was approved for use on Mirena’s label in May 2014. Bayer has also been using same warning message for Mirena since 2010 in Canada.

One of the experts who was excluded by the court, Dr. Roger C. Young, opined that Mirena can exert a force of 390 pounds per square inch, which is enough force to puncture the uterus.

The case is still pending as In re: Mirena IUD Products Liability Litigation, case number 7:13-md-02434, in the United States District Court for the Southern District of New York.

Oracle’s Lawyers Aggressively Cross-Examine Hewlett Packard’s Damages Expert

Just days after losing a copyright infringement lawsuit against Google, computer technology giant Oracle was back in court. This time it is defending a lawsuit by Hewlett Packard Enterprise (HPE), a spinoff of the former Hewlett-Packard (HP) that inherited HP’s server business. Hewlett Packard Enterprise is trying to convince a jury that Oracle is responsible for the declining fortunes of HPE’s pricey line of computer servers based on the Itanium chip.

HPE claims that Oracle wrongfully failed to create new versions of its database software that would support machines running Itanium. According to HPE, Oracle wanted to drive business from HPE to Sun Microsystems, an HPE competitor that Oracle purchased in 2010.

A key dispute in the lawsuit concerns the reason for Itanium’s declining popularity and the amount of money that HPE lost because Oracle failed to support the chip. The expert upon whom HPE relies endured a grueling cross-examination as Oracle attempted to persuade the jury that Itanium was doomed regardless of Oracle’s actions.

The Lawsuit

HP and Intel developed Itanium in 1994 to run a high-end line of HP servers. While HP made some inroads with its Itanium servers, many businesses preferred servers that used Intel’s less expensive x86 chips. Many server customers continued to buy HP machines, but they purchased the less profitable x86 machines rather than those that were running Itanium.

Sales of Itanium-based systems declined sharply after 2011. HPE blames that decline on Oracle. It argues that Oracle undermined Itanium when it announced in 2011 that it would no longer create new versions of its popular software products that would run on Itanium. According to HP, Oracle instructed its sales force to encourage customers to switch to servers manufactured by Sun Microsystems, which Oracle had recently acquired. Oracle claimed that that it was simply following the lead of other software companies that considered Itanium to be nearing the end of its market life.

HP sued Oracle, claiming that the settlement of an earlier lawsuit between the two companies required Oracle to continue supporting Itanium. In 2012, a judge agreed. The judge ordered Oracle to continue supporting Itanium in its new software as long as HP continued to sell machines with Itanium chips.

Oracle appealed, but it has obeyed the judge’s order while the appeal is pending. It contends that HP and HPE were not harmed, or that any harm was minor, because its current software will run on Itanium machines. HPE contends that the harm was done at the moment Oracle announced it would not support Itanium, causing customers to abandon servers with Itanium chips. HPE contends it cannot win those customers back. It wants to persuade the jury that Oracle’s breach of the settlement agreement resulted in a loss of $3 billion in sales of Itanium-based servers.

Expert Testimony

To prove the $3 billion loss, HPE is relying on the expert testimony of economist Jonathan Orszag. Among his other credentials, Orszag served on President Clinton’s National Economic Council.

Orszag based his loss analysis on a comparison of HP/HPE’s revenue from sales of Itanium-based products before and after Oracle announced that it would no longer support Itanium. Orszag noted that revenues began to fall as soon as Oracle made the announcement, and then began to snowball. Although Oracle began to support the product again 17 months later, Orszag testified that Oracle’s announcement created uncertainty that caused customers to turn to other platforms.

Orszag anticipates that losses will continue until 2020, the year in which HPE and Intel project the end of Itanium’s market life. Oracle contends that Itanium is already dead and that HPE has been hiding that reality from its customers and from the market in general.

An aggressive cross-examination of Orszag included an attempt to tarnish his credentials. Oracle’s lawyers accused Orszag of relying on his brother’s help to win a “relatively junior” White House post and of padding his resume with lists of the awards he’s won. The judge eventually agreed that the personal attacks were becoming irrelevant.

Oracle’s lawyers then attempted to poke holes in Orszag’s analysis. They pointed to other factors that could have caused a decline in Itanium sales, including Intel’s development of the competing E7 chip.

Oracle is expected to counter with the testimony of its own expert witness, economist Ramsey Shehadeh. In a preview of that testimony, Shehadeh argued that many other factors contribute to the declining sales of HP and HPE servers, including a decline in HP’s reputation before the company separated its home computer business from its server and business support divisions. Shehadeh also noted the industry’s belief that Itanium was nearing the end of its useful life, sparking defections to more stable product lines.

Oracle and HP/HPE have a long history of suing each other. How the jury will resolve this lawsuit will depend in part on its assessment of the competing views offered by the parties’ expert witnesses.

(Photo Credit: “Intel Itanium” by Konstantin Lanzet is licensed under CC BY-SA 3.0.)

Music Experts Testify in Stairway to Heaven Plagiarism Trial

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

Led Zeppelin Sued for Stairway to Heaven

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

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

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

Music Expert Witnesses Testify in Stairway to Heaven Trial

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

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

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

Led Zeppelin Presents Expert Witness in Stairway to Heaven Case

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

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

Rough Ride Expert Testifies in Trial of Officer Charged with Freddie Gray’s Death

A “rough ride” expert witness testified for prosecutors charging a Baltimore Police Officer in the high profile death of Freddie Gray, who died in police custody last August. Six members of the Baltimore PD were charged with felonies ranging from assault to second-degree murder, but prosecutors have so far been unable to earn convictions against two of the officers. The state rested its case against the third officer after presenting its rough ride expert witness and the trial will resume later this week.

Third Officer Stands Trial for Death of Freddie Gray

The trial for Officer Caesar Goodson Jr., the officer who drove the police van in which Freddie Gray died, began earlier this month and featured more than 20 witnesses called by prosecutors who have charged Goodson with second-degree murder, manslaughter, assault, reckless endangerment, and misconduct in office for alleged reckless driving which caused Gray, who was unbuckled in the back of the vehicle, to suffer a fatal spine injury. According to prosecutors, Goodson Jr. failed to secure Gray with a seatbelt and intentionally drove in a reckless and dangerous manner in retaliation for Gray’s attitude and resistance to police authority.

Goodson has pled not guilty to the charges, and maintains that he did not act inconsistent with department regulations in either his actions towards Gray or his driving tactics. Defense attorneys for Goodson have argued that there is no evidence of the officer intentionally subjecting Gray to a rough ride, and as such the state cannot meet its evidentiary burden of proof necessary to earn a conviction. Goodson is the third of six Baltimore Police who will face trial for Freddie Gray’s death. William Porter, the first officer to be charged, had his case end with a mistrial in December and Edward Nero, a bike officer on the scene, was acquitted last month.

The case will not be heard by a jury because Goodson, like the two officers before him, elected to receive a verdict from the judge.

Rough Ride Expert Testifies for Prosecutors

Stanford O’Neill Franklin, a retired police trooper who has overseen transportation training for the Baltimore Police Department, took the stand as a police rough ride expert witness to explain the concept of “retaliatory prisoner transportation” designed to make a post-arrest ride uncomfortable and even dangerous. According to Franklin, suspects who are unsecured but shackled in a police van are prone to becoming “projectiles” if the officer driving the vehicle engages in reckless or dangerous behavior. Franklin told the court, “It’s extremely important that the ride be as smooth as possible to prevent the person in the back from being propelled around the inside,” and testified that officers are forbidden from intentionally driving erratically as retaliation to unpleasant behavior from the suspect.

During cross examination, defense attorney Matthew Fraling directly asked Franklin if Goodson had submitted Gray to a rough ride. Franklin responded, “I can’t say for sure” after going over the evidence of the path the vehicle took while Gray was in the back. Franklin did say that Goodson should probably have buckled Gray in given the fact that the suspect did not appear to a danger to officers after his arrest, but conceded that it is unclear if Gray would have been adequately secured with the seat belt on.

Franklin’s admission that he could not say whether or not Gray was subject to a rough ride by Goodson could be a blow to the prosecution’s case, as the expert’s comments echo testimony from two other state witnesses – a police officer and another defendant who shared the ride with Gray – that there was insufficient evidence to conclude the ride featured abrupt stops and was not smooth.

Defense Attorneys for Baltimore Police Officer Request Dismissal

At the conclusion of the testimony of the prosecution’s rough ride expert witness, attorneys representing Caesar Goodson Jr. requested the judge dismiss all charges due to insufficient evidence of illegal police conduct. Pointing to Franklin’s uncertainty regarding the nature of ride during which Gray died, defense attorneys argued there is strong cause to doubt the contention that Goodson caused Gray’s death. Prosecutors, who have relied heavily on their rough ride theory, may still be able to demonstrate that Goodson violated the law during his treatment of Gray before the ride, but the case seems harder to prove after their expert’s testimony.

If the charges against Goodson are not dismissed, the case will continue this week with the defense presenting its version of events. Later this month Officer Porter will likely face a re-trial, and the remaining officers – Officer Garret Miller, Lt. Brian Rice, and Sgt. Alicia White – will see their trials in July and October.

ExpertPages Blog