Category Archives: In the News

Articles about legal issues currently in the news.

Terrorism Expert Testifies in Trial of Minnesota Men Accused of Joining ISIS

A terrorism expert witness took the stand this week in the trial of three Minnesota men accused of joining ISIS and plotting to commit violent acts abroad. The high profile trial highlights recent efforts by state and federal government officials to fight growing concerns over radicalization of young men who are exposed to recruitment videos by terror groups such as ISIS.

Minnesota Men Charged with Plotting to Join ISIS

In 2014 the U.S. Attorney’s Office in Minnesota began investigating activities of a group of Muslim Somali men residing in Minneapolis – St. Paul due to suspicion of conspiracy to join terrorist groups. With the cooperation of a friend of the defendants who secretly recorded conversations, the FBI was able to identify nine possible suspects connected to a plot to fly to the Middle East and join with the terrorist network, ISIS. The group of men allegedly met at parks and Somali shopping centers to discuss leaving the country, and were arrested after some of them drove to San Diego in an effort to obtain fake passports and leave the country.

As a result of a joint counter-terrorism effort between the FBI and local police, a total of nine suspects were detained and charged with plotting to join with and aid ISIS’s terror activities in the Middle East. The arrests shocked the Somali community in the Twin Cities, with critics accusing the government of unfair scrutiny of Somali Americans living in Minnesota which led to unjust accusations of conspiracy to commit terrorism. Despite concerns about the nature of the investigation, six of the men have pled guilty to lesser charges.

The remaining three defendants have maintained their innocence, setting the stage for a trial which will help shape the US Government’s ongoing strategy to investigate and prosecute alleged terrorist conspirators who are exposed to radical ISIS recruitment videos.

National Terrorism Experts Testifies in Minnesota Trial

The three suspects who chose not to plead guilty – Guled Omar, 21; Abdirahman Daud, 22; and Moahmed Farah, 22 – claim that watching ISIS recruitment videos and discussing the organization with their friends does not mean they became radicalized. In order to support their case against the defendants, prosecutors called Charles Lister, a senior fellow at the Middle East Institute in Washington, D.C., to explain the Syrian conflict and the ISIS terrorist group to jurors in an effort to help them put the defendant’s actions in context. Lister is a terrorism expert with years of experience studying terrorism recruitment efforts such as the ones ISIS has engaged in, and was tapped by the prosecution in order to show jurors that actions like the defendants’ are indicative of terrorist radicalization.

Lister spent the early part of his terrorism expert testimony explaining the Syrian conflict and Arab Spring to jurors, and how these violent disputes gave opportunity for groups like ISIS to bolster recruitment and expand their terrorist network. After a short break, Lister continued his testimony by focusing on the extreme levels of violence and brutality which ISIS uses to advance its ideological mission of world domination. During his testimony, Lister explained the core tenets of ISIS, discussed the organization’s aggressive recruitment strategy, and identified symbols of the organization. Importantly, Lister also pointed out that because ISIS has been designated a terrorist organization, it is illegal to have any relationship or contact of any kind with the network.

Lister’s three hour testimony with prosecutors concluded with the terrorism expert explaining the types of actions people who join ISIS engage in, and the allure the organization has on young Islamic men in the United States. After he was finished with the prosecutors, defense attorneys spent the afternoon questioning him on cross examination.

Attorneys for Accused Minnesota Terrorists Question Prosecution Expert

Attorneys for the defendants took turns questioning the prosecution’s terrorism expert after the state was finished speaking with him. The thrust of the defense seemed to be twofold: first to highlight how the complex situation is in Syria blurs the lines between good and bad; and second to question whether actions like the defendants’ really suggest conspiracy to join terrorist activities. Defense attorneys had Lister explain that not every group in Syria which opposes the existing government is a terrorist network, suggesting that the defendants were not necessarily plotting to join a terrorist group just because they were planning to go to Syria.

Defense attorneys also questioned Lister about whether or not exposure to ISIS recruitment videos and materials meant radicalization. Lister admitted that not everyone who watches ISIS propaganda is a terrorist before court adjourned for the day. The trial of the Minnesota men linked to a plot to leave America and join ISIS in Syria is expected to continue for several weeks as prosecutors attempt to prove that the defendants were part of a growing radicalization movement which warrants state and federal investigation.

DNA Experts Exonerate Wrongfully Convicted Indiana Man After 25-Years in Prison

A report by a DNA expert witness was key in clearing an innocent man wrongfully convicted of a 1989 rape allegation. Late last month the former inmate greeted his family as a free man after spending nearly 25 years in prison for a crime he did not convict when DNA expert witness evidence finally exonerated him.

Indiana Man Freed From Prison with DNA Expert Evidence

In 1991 Darryl Pinkins, now 63 years old, was convicted of a brutal sexual assault on a woman for allegedly being part of a trio of men who bumped their car into the victim’s, pulled her inside their vehicle, and raped her for several hours. During the trial and investigation Pinkins was identified by the victim as her assailant, and he was convicted despite his repeated claims that he was in bed with his wife on the night of the attack. During the nearly 25 years Pinkins spent behind bars he maintained his innocence before being finally vindicated by DNA.

In late April, Pinkins was freed from prison and informed that prosecutors would not pursue his case further, meaning his quarter century ordeal is over. Pinkins was greeted by his 24-year-old son, family, friends, and members of the Innocence Project – the legal aid organization which dedicates its efforts to using DNA to overturn wrongful convictions. Pinkins has lost his teeth, suffers from diabetes, and developed thyroid disease during his lengthy prison stay, but expressed confidence that this day was meant to be because he knew that he was an innocent man.

The DNA evidence used to earn Pinkins’ release is new technology which is being used by prosecutors and police across the country to identify defendants as guilty parties, and this case is the first to take advantage of the software as a tool for exonerating wrongfully imprisoned individuals.

Darryl Pinkins Exonerated with True Allele DNA Expert Software

For the past 15 years members of the Indiana and Idaho Innocence Projects have worked together to obtain sufficient DNA evidence to free Darryl Pinkins, and a new DNA expert witness software finally provided the opportunity. True Allele, which faces stiff legal challenges over its source code, is an increasingly popular tool which has refined forensic DNA science by improving the ability to parse out a single person’s DNA from potentially incomplete or mixed samples. True Allele has gained traction in several eastern states by police and prosecutors who believe the software is uniquely qualified in providing accurate DNA matches which connect suspects to crimes in a way no other DNA analysis tool can.

Up until the Darryl Pinkins case, True Allele has not been used to exonerate wrongfully convicted defendants, but the lawyers and law students of the Indiana and Idaho Innocence Projects saw an opportunity to apply new DNA expert technology to their mission. Two Innocence Projects DNA expert witnesses used the True Allele software to test the samples gathered from the 1991 crime scene, and prepared a report which informed prosecutors that Pinkins could not have been involved in the brutal sexual assault. The experts were prepared to testify in a hearing on the matter, but after reading their DNA report, prosecutors decided to vacate Pinkins’ conviction and release him from prison immediately.

The True Allele technology was not available in 1991 when Pinkins was first convicted, but the spread of the tool has given prosecutors cause to utilize DNA expert witnesses to ensure the right defendants are prosecuted for crimes in order to avoid future wrongful convictions.

DNA Expert Preaches the Value of True Allele Software

Greg Hampikian, one of the two DNA expert witnesses hired by the Innocence Project to free Darryl Pinkins, praised the True Allele system for providing the opportunity to improve accuracy of criminal convictions. Hampikian told reporters that he felt the tool should be used to review all DNA cases in which there were complex samples or inconclusive results by saying, “This technology holds the key not just to answering complex DNA problems, but the literal key to freedom for men like Daryl Pinkins.” DNA experts like Hampikian believe the use of True Allele has the potential to affect convictions throughout the United States by providing defendants convicted without reliable DNA evidence the opportunity to challenge the legitimacy of their trials.

As True Allele becomes more common of a tool for police and prosecutors, it is not surprising that groups like the Innocence Project will take the opportunity to use the software as a tool to exonerate wrongfully convicted defendants. While its wide-spread application will take time, the development of True Allele as a tool for exoneration is a foreseeable next step in DNA expert technology.

Experts Support Robert Bates’ Defense of Accidental Shooting

The defense of Robert Bates, a former Tulsa Reserve Deputy who was charged with manslaughter, hinged largely on expert testimony. The charges against Bates were filed after Bates shot an unarmed suspect who fled when Tulsa deputies tried to arrest him during an undercover gun buy.

Bates explained that he was trying to shoot the suspect with his Taser but drew his gun by mistake. The manslaughter charge required prosecutors to prove that Bates was guilty of “culpable negligence” in causing the victim’s death.

Trial Evidence

Bates is 74 years old. He was in the insurance business before he became a volunteer deputy in the Tulsa County Sheriff’s Office.

Bates provided support for an undercover operation organized by the Sheriff’s Office. An undercover officer planned to purchase a gun from Eric Courtney Harris, an ex-convict who could not legally possess a firearm.

After the illegal sale allegedly took place, other deputies approached the vehicle in which Harris was sitting. Apparently realizing that he was about to be arrested, Harris bolted from the vehicle and ran.

Bates was parked several blocks away from the undercover transaction. He told an interviewer on NBC’s Today Show that he had participated in hundreds of similar operations, usually coming to the scene after the arrest to assist in taking pictures and gathering evidence.

Deputies Ricardo Vaca and Miranda Munson were with Bates. They testified that Bates had his eyes closed and appeared to be dozing off as they waited. When they saw Harris running toward their position, they left their vehicle and intercepted him. Vaca tackled Harris and took him to the ground, where he held Harris in what he described as a “seatbelt hold.”

Bates did not testify, but he gave a statement to an investigator in which he admitted mistaking his Taser for his gun. He said he decided to shoot Harris with his Taser because he feared that Harris might have a concealed weapon. A sheriff’s deputy testified that Bates’ revolver and the Taser have similar grips and weights.

Bates shot Harris as he was on the ground. Vaca testified that the bullet came within inches of striking him. Another deputy who arrived at the scene testified that he heard Bates yell “Taser.” Vaca said that he would have disengaged from Harris if he had heard Bates announce his intent to fire a Taser. Vaca also testified that even if Harris intended to use his Taser, proper procedure required him to wait until he had a clear opening so that he would not accidentally shoot a deputy who was struggling with the suspect.

Experts Debate Cause of Death

Dr. Cheryl Niblo, a forensic pathologist, testified that Harris died from a “combination of lung collapse and blood loss.” Based on the severe injuries she saw in her autopsy, she concluded that his death was caused by gunshot wounds.

The defense contended that Dr. Niblo failed to review Harris’ medical history and therefore did not know of other medical issues that could have caused his death, including heart disease and methamphetamine use. The defense called two medical experts to refute Dr. Niblo’s conclusion. Dr. Mark Brandenburg, a specialist in emergency medicine, and Dr. James Higgins, an expert in cardiology, agreed that Harris died from a heart attack caused by blockage and the stress of running from and struggling with the police.

In addition to challenging the cause of death, the defense attacked the manslaughter charge by arguing that Bates’ mistaken use of his firearm was reasonable under the circumstances. Dr. Charles Morgan, a psychiatrist who studies human cognitive error in stressful situations, testified that the stress of the moment contributed to Bates’ confusion and that “muscle memory” prompted him to grab his gun instead of his Taser.

Morgan said stress causes even highly trained professionals to make mistakes as a surge of adrenaline blocks “reflective” thinking, forcing the body to resort to “reflexive” or “habitual” actions. On cross-examination, Morgan admitted that his research focused on military personnel and that he did not know whether Bates had sufficient experience with guns to develop muscle memory.

The Verdict

The defense argued that the prosecution should have been required to call experts to testify about law enforcement standards and whether Bates negligently deviated from those standards when he mistakenly shot Harris. The judge ruled that the jury was entitled to base its decision on common sense and that no expert guidance was required.

The jury deliberated only three hours before finding Bates guilty of manslaughter. The maximum sentence that Bates could receive for that conviction is four years in prison.

Video Recording Experts Will Testify in Heather Elvis Kidnapping Case

A South Carolina judge has ruled that the prosecution will be allowed to call an expert witness to testify in the trial of a husband and wife who are charged with kidnapping. The disappearance of Heather Elvis made national headlines. Coverage included a feature on the Missing in America series on Dateline NBC. News commentary sparked a social media frenzy that may have fueled ill-considered murder charges.

Murder Charges Filed

Heather Elvis disappeared in 2013. The 20-year-old woman went on a date on December 17. She returned to her apartment at about 2:00 a.m. on December 18. She called a friend and chatted about the date, then made a few other calls.

The next day, Heather’s car was found at a boat landing. The doors were locked. Neither her purse nor her cellphone were inside the car. The police began searching for Heather on December 20. Her location remains a mystery.

In February 2014, Sidney and Tammy Moorer were arrested and charged with kidnapping, obstruction of justice, and indecent exposure. On February 24, they were charged with Heather’s murder. Prosecutors expressed confidence that they had a strong case.

Gag orders have limited the information available to the press about the evidence against the Moorers. However, prosecutors apparently believe that Heather had an affair with Sidney Moorer and that Tammy Moorer learned about the affair at some point in 2013. Prosecutors contend that Tammy changed the password on Sidney’s cellphone and handcuffed him to the bed at night to prevent him from having further contact with Heather.

At the Moorers’ bond hearing, prosecutors told the court that they had evidence of threats that Tammy Moorer made to Heather prior to Heather’s disappearance. The indecent exposure charges were based on the claim that Tammy used her cellphone to record herself having sex with Sidney inside their car, which was allegedly parked in a public place. Prosecutors said that Tammy then sent the video to Heather in a text message.

The prosecution contends that Sidney called Heather from a payphone on December 18, 2013, after Heather returned home from her date. Less than an hour later, Heather called Sidney’s cellphone and had a four-minute conversation. Cellphone records suggest that she then drove to the boat landing where her car was found. Additional calls to Sidney’s cellphone went unanswered. The boat landing is about three miles from the Moorers’ home.

Murder Charges Dropped

The defense attorneys contend that the Moorers cooperated fully with the police investigation and that the charges against their clients are based on speculation rather than substantial evidence. They argue that the police were under pressure to solve the crime and that they rushed to arrest the Moorers without conducting a careful investigation. Although prosecutors deny that the police acted hastily, the police were searching for new evidence as recently as January 2015.

As the case dragged on, a judge reduced the bond that had been previously set for the Moorers. He then allowed the Moorers to move to Florida, where Tammy Moorer is now working. Heather’s family initiated an online petition to remove the judge who reduced the Moorers’ bond from presiding over the murder case.

In a surprise twist, prosecutors subsequently dismissed the murder charges. They also dismissed the indecent exposure charges and the obstructing justice charge that had been filed against Tammy. Citing the gag order, the prosecutor declined to explain the dismissals, but it is almost certain that the charges were dismissed because the prosecution lacked sufficient evidence to prove either of the Moorers guilty of murder beyond a reasonable doubt.

The kidnapping charges and the charge of obstructing filed against Sidney Moorer are scheduled for trial in June 2016. In connection with those charges, the defense asked the court to disallow expert testimony that the prosecution proposed to introduce into evidence.

Expert Evidence Challenged

The case against the Moorers seems to be based largely on video recordings that were made by two surveillance cameras along the road between the boat landing and the Moorers’ home. One of the cameras is connected with a private home while the other belongs to a business. Both cameras recorded a pickup truck driving toward the boat landing from the direction of the Moorers’ home. The cameras recorded the pickup truck driving in the opposite direction a few minutes later. The first recording of the truck was made about 20 minutes after records show a conversation took place between Heather’s cellphone and Sidney Moorer’s.

The FBI and the South Carolina Highway Patrol determined that the video showed “a dark 2013 or 2014 Ford F-150, with silver toolbox in the bed, a moon roof, silver rims and high-end bulbs in the headlights.” The Moorers own a truck that matches that description, but more than 80 pickup trucks of that model and age are registered to owners in the county where the crime occurred.

The prosecution’s expert is Grant Fredericks, a forensic video analyst who teaches video sciences at the FBI National Academy. During a pretrial hearing, Fredericks testified that the pickup truck in the video was the same truck that belonged to the Moorers.

The defense countered with the expert testimony of Bruce Koenig. While Koenig did not disagree with Fredericks’ methodology, he testified that it was impossible to rule out the possibility that the truck captured by the video cameras did not belong to the Moorers.

Since the question before the court concerned the validity of the conclusion that Fredericks drew and not the reliability of his methodology, the judge decided that Fredericks would be allowed to testify. The defense would then presumably present the testimony of Koenig, leaving it to the jury to decide which expert is more persuasive.

Expert Allowed to Use Statistical Evidence of Plaintiffs’ Damages in FLSA Class Action

The United States Supreme Court held in Tyson Foods vs. Bouaphakeo, et al (577 U.S. ___(2016) that an expert could properly use a statistical sampling of damages claimed to have been sustained by workers in litigation brought under the Fair Labor Standards Act (FLSA). Specifically, the evidence was permissible to establish the required commonality among the parties for certifying and maintaining a class action.

Factual Background

This case was heard by the United States Supreme Court on certiorari from the District Court of Appeals for the Eighth Circuit. It began as a suit by employees of a pork processing plant operated by Tyson Foods, Inc. in Iowa.

The employees worked in different departments of the plant. Their jobs involved, respectively, killing, cutting and re-trimming the product to ready it for packaging and shipment. All of the roles required them to wear protective gear, but the type of gear depended on the job function they performed on a given day. The time required to put on and remove the gear during the day differed depending on the protective gear used. Tyson paid some, but not all, of the Plaintiffs for the time spent in putting on and removing the gear. Tyson kept no record of the time required to be spent by the employees in performing that activity, yet wearing the protective gear was mandatory. The Plaintiffs claimed that because using the gear was mandatory and added to their work time, they were effectively denied overtime pay as required by the Fair Labor Standards Act. In the same suit, a claim was presented under Iowa law.

Procedural History

The Plaintiffs sought certification of the FLSA claims as a “collective action”, and the state law claims as class action. Tyson objected because not all of the employee functions required the same gear and argued that therefore, the wage claims were not similar enough to be resolved on a class-wide basis. At that, depending upon the gear that each employee put on and took off during the workday, different amounts of time were spent. The District Court held that there existed common questions, such as whether or not time spent putting on and taking off the gear, were compensable under the FLSA and they could be resolved on a class-wide basis.

Key Expert Issue and Supreme Court’s Decision

To prevail in the FLSA claim, the Plaintiffs had to prove that all of them worked more than 40 hours per week inclusive of the time involved with the protective gear. The problem was that Tyson had not kept time records. Therefore, the Plaintiffs relied on an industrial relations expert, who videotaped employees putting on and taking off the protective gear. He determined how long it took the employees in each work category, added that time to 40 hours, and was able to determine which class members worked more than 40 hours. Tyson objected to the expert’s method because the differing amount of time for putting on the gear by different categories of employees would result in overtime going to some employees who did not work overtime.

The District Court certified the class, and the Supreme Court affirmed. The Supreme Court also held that despite the different job descriptions and time involved with the protective gear, the expert’s technique was acceptable. It reasoned that it was the only feasible way to establish liability, in this case, because Tyson kept no other time records. It held further that the appropriateness and admissibility of statistical, rather than direct evidence, is fact-driven.

Google and Oracle Each Try to Limit the Other’s Experts

Oracle, the nation’s second largest software developer, sued Google in 2010, claiming that Google violated the patents and copyrights that protect its Java programming language. Oracle alleged that Google used Java application programming interfaces (APIs) to develop its popular Android operating system. An API allows one program to communicate with another. Oracle claimed that Google “replicated the structure, sequence, and organization of the overall code” of 37 API packages.

In 2012, a jury decided that Google did not infringe on Oracle’s patents. The same jury found that Google infringed Oracle’s copyright on its API code but could not agree whether Google was entitled to the “fair use” of the APIs.

Before the trial moved forward to allow the jury to consider an award of damages, the judge decided that the Java APIs replicated by Google were not subject to copyright protection. The judge therefore dismissed that portion of the lawsuit.

The court of appeals disagreed. It concluded that the structure, sequence, and organization of the API packages was entitled to copyright protection. The court of appeals therefore reversed the district court’s dismissal of the copyright claims and instructed the district court to reinstate the jury’s infringement verdict.

The case is now set for a second trial. The jury will be asked to decide whether Google made “fair use” of the APIs under copyright law and, if not, what damages it should pay as a result of its copyright infringement. Oracle is asking for $8.8 billion in damages. That’s almost twice the profit that Google’s parent company earned last quarter.

Before the trial starts, however, the court will need to decide what testimony the parties’ damages experts will be permitted to give. Each side has moved to exclude proposed testimony that the other side wants to offer.

Oracle’s Economic Expert

Oracle proposes to call Dr. Adam Jaffe to testify about the market harm that resulted from Google’s use of the 37 Java APIs. Google filed a Daubert motion, asking the court to decide whether Jaffe’s proposed testimony is based on a reliable application of valid principles and methods to the facts of the case. Google’s motion urges the court to exclude key portions of Jaffe’s testimony.

The fair use doctrine requires an evaluation of the effect of the use upon the potential market for the copyrighted work. Google argues that the copyrighted works are Java SE 1.4 and Java SE 5.0. According to Google, Jaffe overreached by analyzing the effect of Google’s Android system on Oracle’s potential market for the entire Java platform, rather than limiting his analysis to the potential market for Java SE 1.4 and 5.0. Google also argues that Jaffe considered the effect of Android as a whole on the potential market for Java, when he should have considered the effect of the 37 infringed APIs on the Java market. Since Jaffe did not limit his analysis to the relevant market or to the specific copyrights that were infringed, Google contends that his analysis is unreliable and unhelpful, and should therefore be excluded.

Google’s Technical Expert

Oracle moved to exclude certain proposed testimony of Google’s expert, Dr. Owen Astrachan, regarding fair use. Google argues that it made fair use of the APIs because it changed their expressive content. In other words, it transformed the copyrighted APIs into something new. Astrachan would testify that Google’s use of Oracle’s APIs was transformative because Google wrote its own code to implement the APIs as part of Android. Oracle contends that Astrachan is misapplying the legal standard because incorporating the APIs into Android did not change the APIs and is therefore not transformative.

In addition, the Court of Appeals concluded that Google could have written its own code instead of copying the API packages. According to Oracle, Astrachan would testify that Google had no choice but to copy the API packages because Android could not have used the Java language without doing so. In Google’s view, the court of appeals’ decision forecloses that testimony.

Finally, Oracle argues that Astrachan should not be allowed to express an opinion about potential harm to the market that was caused by the copyright infringement because Astrachan is an expert in computer programming, not in economics. Oracle argues that Astrachan did not apply a reliable economic methodology to arrive at his opinion about market harm. According to Oracle, his opinion amounts to “pure speculation” that must be excluded under Daubert.

Daubert hearing

The objections remain unresolved, but the judge made some interesting remarks at the Daubert hearing. He suggested that the question of market value comes down to “what could [Oracle] have sold the copyrighted work for before and after” the infringement. The judge expressed skepticism that Oracle could have used Java to “hit a home run” in the smartphone market as Google did with Android, since Android’s development consisted of considerably more than the copied Java APIs. The judge seemed to agree with Google that the APIs embedded within Android are a very small part of a very large work.

The judge also questioned whether he should rule that Google’s use of the APIs was transformative instead of leaving that question for the jury to decide. The judge expressed concern that if he ruled that Google’s actions were not transformative as a matter of law, he would be “cutting [Google] off at the knees.”

Although the judge has not yet decided the motions, he did lament his role as “gatekeeper” under Daubert. The judge asked “Do I have to go through and excise every detail of expert testimony on a granular level?” Despite the thousands of court decisions that have applied Daubert, judges still have differing philosophies about when a gatekeeper should prevent a jury from hearing expert testimony and when a judge should let the jury sort through the testimony to decide whether it is reliable. Where the judge in the dispute between Oracle and Google will draw that line will soon be determined.

(Photo Credit: “Android” by Saad Irfan is licensed under CC BY-SA 2.0.)

PG&E Seeks Exclusion of Government’s Experts in Pipeline Safety Prosecution

Following a natural gas pipeline explosion in the San Francisco suburb of San Bruno, the government charged Pacific Gas & Electric (PG&E) with eleven counts of violating the U.S. Pipeline Safety Act. The blast killed 8 people, injured 58, and caused the destruction of 38 homes. Alleging that PG&E impeded an investigation by the National Transportation Safety Board, the government also charged a count of obstructing justice.

The government intends to call two expert witnesses (as well as dozens of lay witnesses) to prove its case. PG&E has filed a motion to prohibit the experts from testifying.

Prosecution of PG&E

Prosecutors hope to prove that PG&E knew of manufacturing problems regarding the natural gas pipeline before it exploded. The prosecution contends that PG&E failed to conduct required pipeline assessments and deliberately disregarded federal pipeline safety regulations. The government asserts that those decisions were driven by a corporate culture that prioritized profits over safety.

The government plans to call former PG&E employee Leslie McNiece to testify that after the pipeline exploded, she found records concerning the pipeline in a dumpster outside of PG&E’s gas operations facility. McNiece is also expected to testify that she was instructed to destroy pipeline records and that she “encountered opposition and pushback from top executives” when she tried to improve the company’s recordkeeping concerning its pipelines. PG&E says that the discarded documents were copies and the originals had been scanned into the company’s recordkeeping system.

Expert witness – Corporate Culture and Spending

The government intends to call Henry Lubow, a consultant with 40 years of experience in utility regulation, to explain how PG&E’s finances, budgeting, and cost-cutting measures adversely affected its commitment to safety. Based on a review of company documents, Lubow would testify that PG&E places more emphasis on profits than safety. Lubow would also testify that he found multiple examples of employee warnings concerning safety issues that were ignored or not taken seriously by management.

PG&E has objected to the testimony on the ground Lubow would merely be placing his own “spin” on documents that he would summarize for the jury. In PG&E’s view, Lubow’s opinions reflect no expert analysis and require no expertise. Lubow’s opinions are the sort of argument that a prosecutor might make in a closing argument, but “previewing” a closing argument is not, in PG&E’s judgment, an appropriate use of expert testimony.

The government also wants to use Lubow’s testimony to bolster its proof that PG&E acted willfully. The testimony would help the government establish that PG&E had a financial motive to disregard government regulations. PG&E argues that an expert who has no connection with a corporation is not qualified to testify about the corporation’s intent.

Finally, the government expects Lubow to testify that PG&E spent less on safety precautions than the amount authorized by the California Public Utilities Commission (CPUC). PG&E contends that for most years, the CPUC did not specify a spending allowance when it set PG&E’s rates, and that Lubow’s attempt to “impute” a spending level that PG&E should have followed is based on unsound methodologies.

The government responded that expert testimony about the requirements imposed upon regulated utilities would help the jury understand PG&E’s obligations. The government argues that Lubow’s experience with safety regulatory standards enables him to express opinions as to whether PG&E met those standards, based on his review of relevant documents. Since the Federal Rules of Evidence allow witnesses to base testimony on hearsay, the government argues that Lubow is entitled to base his testimony on a document review rather than personal experience with PG&E.

The government denies that Lubow would testify about PG&E’s corporate intent, but argues that he should be allowed to testify about facts (such as cost-saving measures) that would permit a jury to infer that PG&E willfully failed to pay sufficient attention to safety in order to strengthen its profits. The government contends that Lubow’s testimony will show that PG&E allocated money to executive compensation when it could have been correcting deficiencies in recordkeeping and pipeline maintenance. The government argues that the jury could infer from those facts that PG&E intentionally disregarded regulatory duties to pursue priorities other than safety.

The government faults PG&E’s attack on Lubow’s analysis of PG&E’s spending because it views the attack as going to credibility, not to reliability. The government says that that Lubow will testify about the amounts of money PG&E told CPUC it would spend and will compare those estimates to the amount that PG&E actually spent. Whether Lubow’s accounting is correct is a question for the jury to decide and not, according to the government, a basis for excluding expert testimony.

Expert Testimony – Regulatory Requirements

The government also proposes to call Steve Nanney, a senior engineer at the Pipeline and Hazardous Materials Safety Administration, to testify about the requirements of the Pipeline Safety Act and the regulations that implement that law. PG&E contends that experts cannot explain the law to the jury. According to PG&E, the judge is the only authority on the law, and the jury learns about the law from the instructions it receives at the end of the trial, not from experts.

The government counters that an expert explanation of “complex and technical regulatory requirements” does not run afoul of the general rule that an expert cannot explain the law. Since the regulations are promulgated by an administrative agency, the government argues that a witness from that agency should be allowed to explain the regulatory framework and how specific regulations within that framework are meant to be implemented. The government denies that the expert will usurp the judge’s role because the expert will not be offering legal conclusions in his testimony.

Daubert Hearing

The court will presumably conduct a Daubert hearing before deciding whether the government’s witnesses can testify. After hearing evidence, the court will decide whether the expert testimony is relevant and reliable.

It may be some weeks before that hearing takes place, as PG&E is complaining that the government recently produced 100,000 pages of records, some of which may have a bearing on the expert testimony. PG&E’s lawyers told the court that they would need three weeks to review the newly produced documents before further assessing the proposed expert testimony.

Photo Credit: Public Domain. FastilyClone.

Court Denies Justin Bieber’s Request to Delay Filing of Expert Report

Justin Bieber and Usher may be forced to go to trial in a copyright infringement lawsuit without an expert witness. The presiding judge denied their motion to extend the deadline for providing an expert witness report. Without the benefit of an expert musicologist, Bieber and Usher will have a more difficult challenge as they attempt to persuade the jury that the hit song “Somebody to Love” was not copied, at least in part, from a song with the same title that was written by Devin Copeland and Mareio Overton.

Copyright Infringement Lawsuit

Copeland, an R&B artist, released his version of “Somebody to Love” in 2008 under the name De Rico. Copeland and Overton registered a copyright to the song. A company that recruits artists for major labels gave a promotional copy of the song to its clients, including Usher.

Copeland alleges that Usher’s mother, who is also his manager, told him that they were interested in having Copeland join Usher on tour after Copeland recorded an anticipated album. The album included the song “Somebody to Love.” Copeland says Usher’s mother never followed up on that suggestion.

Months later, Usher recorded a demo of a song titled “Somebody to Love.” He posted the demo to YouTube but did not release it commercially. Bieber, who regards Usher as a mentor, worked with Usher to record his own version of Usher’s demo.

Bieber’s version of “Somebody to Love” was included on his first album. The song was a success, peaking at number 15 on the Billboard Hot 100 chart. A month or two later, Usher and Bieber released a remix of the song. Both Usher and Bieber performed on the remix, with was otherwise virtually the same as Bieber’s solo version.

Copeland claimed that the Usher/Bieber song copied original, copyrighted content from his song. He sued in federal court for copyright infringement. The district court judge dismissed the lawsuit without a trial after deciding that no reasonable jury could find that the two songs were substantially similar. Copeland appealed.

Copeland’s Appeal

The Court of Appeals noted that copyright infringement requires proof that the defendant copied original, copyrightable elements of the plaintiff’s work (in this case, a song). Copying can be inferred from evidence that the defendant had access to the song and that the defendant’s song is substantially similar to the copyrighted song.

The Court of Appeals scrutinized the two songs for “substantial similarity” by making an extrinsic and an intrinsic inquiry. The extrinsic inquiry is objective. The question is whether the original elements of the first song closely match similar elements in the second song. The court noted that plaintiffs typically rely on expert evidence to establish that the first song has original elements and that the same elements appear in the second song. If they do, an inference can be drawn that the creator of the second song copied those elements from the first song, provided that the creator of the second song had access to the first song.

The intrinsic inquiry is subjective. It asks whether the song’s intended audience would experience the two songs as similar in their overall effect. The intrinsic test relies on an aesthetic judgment regarding the “concept and feel” of the two songs.

A plaintiff suing for copyright infringement must establish both extrinsic similarity and intrinsic similarity. The district court dismissed the lawsuit without considering extrinsic similarity because it decided that no reasonable jury could find that the songs were intrinsically similar. The court of appeals disagreed.

The district court decided that Copeland’s song and Bieber’s song were different in tone and mood. The court of appeals acknowledged that the songs are written to accommodate different genres. Copeland’s song is performed in an R&B style while Bieber’s fits within the genre of dance pop. Yet differences in genre alone do not make songs intrinsically dissimilar. If that were true, the court explained, a reggae version of a Beatles song would not violate the Beatles’ copyright.

The court of appeals also acknowledged that the two songs are dissimilar in more ways than they are similar. Lyrics, melodies, and beats are all different, at least in some respects, when the songs are compared side-by-side.

Yet the question at this stage of the case is not whether a court believes the two songs are intrinsically similar, but whether a jury could find that they are intrinsically similar. The court of appeals thought that the chorus or “hook” in each song, from the shared lyric “I need someone to love” to the strikingly similar rhythm and melody, could cause a general audience to believe that the two songs were similar in their overall effect. In fact, the court suggested that the audience would want to sing along with the chorus in each song for the same reasons. Since the chorus was substantially important to the overall effect of the two songs, and since a jury could find that the choruses are intrinsically similar, the court of appeals decided that Copeland was entitled to have a jury decide whether Bieber and Usher copied Copeland’s song.

Preclusion of Bieber’s Expert Witness

As the court of appeals noted, the extrinsic similarity of two songs in a copyright infringement trial is usually the subject of expert testimony. Musicologists on both sides typically express opinions about which components of a song are original and whether original components in the first song are repeated in the second song.

Expert witnesses in federal cases must prepare reports. Those reports must be disclosed before a deadline established in a scheduling order. Copeland and Bieber jointly asked the district court judge to amend the court’s scheduling order. Joint motions are routinely granted and, if the judge had consented, Bieber would have had until April 15 to file his expert report.

Defying the expectations of Bieber’s attorneys, the judge denied the motion. She is reportedly frustrated by repeated delays in the case and wants to assure that it goes to trial in October. The judge denied the motion on March 30, after Bieber’s lawyers had already missed the March 21 deadline to file their expert report.

Scrambling to avoid going to trial without an expert witness, Bieber’s lawyers are asking the judge to reconsider. They explained that their expert musicologist is busy with other cases, including a lawsuit alleging that Jimmy Paige copied parts of “Stairway to Heaven” from a song by the band “Spirit.” They also advised the court that they would have hired an expert who is less busy if they had known the court would deny the joint motion to amend the scheduling order.

The court might agree to allow the expert report to be filed late. On the other hand, it might rule that courts, not parties, set deadlines and that parties have an obligation to comply with those deadlines. If Bieber and Usher are forced to go to trial without an expert, they may have little hope of contesting the claim that the songs are extrinsically similar, forcing them to hinge their defense on the argument that the songs are substantially different in concept and “feel.”

Vanderbilt Football Player Convicted of Rape Despite Defense Expert Testimony

Last week jurors in the high profile rape trial of a former Vanderbilt football player returned a guilty verdict against a defendant who claimed he was too intoxicated to engage in the type of malicious criminal behavior required for aggravated rape charges. Despite testimony from a defense expert witness which bolstered his claim, Cory Batey was convicted of aggravated rape and 6 lessor charges for his role in a 2013 incident involving a 21-year-old woman.

Former Vanderbilt Football Players Charged with Rape

Cory Batey was the first of two former Vanderbilt football players to face a retrial for charges stemming from the 2013 incident when he allegedly raped an unconscious 21-year-old woman in a university dorm room after a night of drinking. Batey and former teammate Brandon Vandenburg were convicted in January of 2015 of aggravated rape, attempted aggravated rape, and aggravated sexual battery, but were granted a new trial only two months later when evidence emerged that one of the jurors was a victim of sexual assault. Judge Monte Watkins granted the mistrial due to a potential conflict of interest, forcing Tennessee prosecutors to prepare for a second trial which began in March of 2016.

Trials for Vandenburg and two other former Vanderbilt players who have yet to face any trial, Brandon Banks and Jaborian McKenzie, will begin later this month now that prosecutors have finished retrying Batey for his alleged role in the incident. During the prosecution’s case, jurors were shown pictures of cell phones belonging to Batey, Vandenburg, and Banks which depict graphic images of the players apparently squatting over the unconscious victim and touching her genital area while making lude gestures towards the camera.

Since the early part of the investigation, Batey claimed that he was intoxicated throughout the incident and could not remember assaulting the victim. In order to bolster his claim that Batey did not act with the intent necessary to commit aggravated rape, defense attorneys called an expert witness to tell jurors that the defendant’s intoxication significantly affected his mental state at the time.

Defense Expert Explains Intoxication Level in Vanderbilt Rape Case

Jonathan Lipman, an alcohol expert, took the stand during Batey’s defense in order to explain to jurors the effect a night of drinking had on the defendant. According to Lipamn, the defendant was so drunk on the night of the rape that his blood alcohol content was likely between 2 and 5 times the legal driving limit in Tennessee. Lipman punctuated his expert testimony by telling the jury that Batey would have been able to function, but would likely have done “silly things, jackass things” that he was not going to remember the next day.

Prosecutors in the case took Lipman to task for the methods he used to arrive at his expert opinion, and aggressively questioned him during cross examination. Deputy District Attorney General Tom Thurman started his cross examination by forcing Lipman to admit that his entire expert testimony was based on data he had collected from Batey’s own recollection of the evening. Lipman conceded that there was no hard evidence of the amount of alcohol the defendant consumed, and Thurman pointed out that Batey’s own testimony about the number of drinks he had changed during the investigation, and included an admission from the defendant that he had stopped drinking at least an hour before the sexual assault.

Lipman responded to the questioning that even if Batey was not as drunk as he initially estimated, the defendant still would have been blackout drunk and impressionable to suggestion by others. Lipman conceded that his expert witness testimony was only as good as the data he received, but maintained his statement that the defendant was severely intoxicated.

Jury Convicts Cory Batey in Vanderbilt Rape Trial

Despite expert testimony about the effect of alcohol on his decision making, jurors again convicted former Vanderbilt football player Cory Batey for aggravated rape in his retrial. Batey received a small break because the secondary charges he was convicted of are less serious than the ones he was convicted of following the 2015 trial, but he is facing serious prison time which will be determined during his sentencing trial on May 20^th.

The remaining defendants will face trial later this month, and their defense teams have not announced plans to call Lipman or any other expert witness to testify about their mental state or intoxication level at the time of the rape.

Cellphone Experts Give Opposing Testimony in Fraud Trial

Experts continue to argue about whether the data provided by mobile phone companies can reliably establish the location of a cellphone (and, by implication, its owner) at a particular time of day. When cellphones are on, they periodically “ping” a tower. Experts who use the tower’s location to track the approximate location of the phone assume that the phone pinged the nearest tower. Based upon the relative location of towers, experts draw a “coverage map” to show the area where the phone might have been during each ping.

As ExpertPages has noted in the past, the validity of coverage maps depends upon the assumption that the cellphone actually pinged the closest tower. An expert in a recent Long Island, New York trial suggested that the assumption may not be valid.

Ed Walsh Trial

Federal prosecutors charged Ed Walsh, the chair of the Suffolk County Conservative Party, with theft of government funds and wire fraud. Walsh was employed as a corrections lieutenant by the Suffolk County Sheriff’s Office and was assigned to the Suffolk County Jail. Instead of working, however, prosecutors contended that Walsh was golfing, gambling in Connecticut, or conducting Conservative Party business.

Walsh was paid a salary of $127,000 per year. He is accused of defrauding taxpayers of about $200,000 from 2011 to 2014 by collecting a salary while not showing up for work. Prosecutors contended that the Suffolk County District Attorney covered up Walsh’s malfeasance and interfered with investigations by law enforcement agents. Media reports describe Walsh as a “backdoor kingmaker” in Suffolk County politics.

The Sheriff disputed Walsh’s claim that he had “flex time” and could make up hours whenever he wanted. Walsh’s lawyers contended that the Sheriff’s testimony was politically motivated. The Sheriff, however, is also a member of the Conservative Party.

Federal prosecutors compared Walsh’s time sheets, which logged the times he claimed to be working, with records from a casino and various Long Island golf courses to prove that Walsh was not working while he was supposedly earning his salary. Prosecutors also relied on the testimony of an engineer concerning the location of Walsh’s cellphone.

Disputed Cellphone Testimony

To confirm the accuracy of other records and testimony showing that Walsh was in a casino or on a golf course when his time sheets showed he was working, prosecutors relied on the expert testimony of a cell tower engineer. By analyzing records provided by Walsh’s cellphone service provider, the engineer created maps showing the areas where Walsh could have been when his phone pinged the tower.

Since Long Island cellphone towers are located about four miles apart, a cellphone that pings the nearest tower will not usually be more than two miles from that tower. The engineer used that reasoning to narrow down Walsh’s location, placing him near the Long Island golf courses where, according to the prosecution, he was golfing rather than working.

The defense countered with its own expert, a senior manager at Cherry Biometrics, who questioned the assumption that Walsh’s phone always pinged the closest tower. According to the defense expert, cell phones can ping towers up to 21 miles from the phone’s location, even if they are not the nearest towers. He testified that phones link with towers that have the clearest signal. The tower with the clearest signal may or may not be the closest tower.

Other experts have concluded that using cell tower records to track a mobile phone user will not necessarily yield accurate results. Despite the FBI’s heavy reliance on a questionable methodology to track cellphone users, some federal judges have ruled that the FBI’s analysis of cellphone records is not a scientifically valid or reliable means of locating people. One innocent woman was wrongly convicted of murder and imprisoned for 12 years, largely on the basis of mistaken cellphone tracking evidence.

Critics have condemned cellphone tracking as junk science. Defense experts are increasingly being employed to counter the claims of prosecutors that they are able to link a defendant to a particular location by using cellphone records.

The Walsh Verdict

Some cases turn on expert evidence and others don’t. The jury in the Walsh trial deliberated for about an hour before finding Walsh guilty. In the end, the multiple witnesses who saw Walsh playing golf or gambling, and the written records of golf cart rentals and casino payouts, made the dispute about cellphone tracking a sideshow. In cases where cellphone tracking evidence is necessary to secure a conviction, however, experts are likely to play a decisive role.

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