Category Archives: In the News

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ACLU Lawyer Questions Testimony of Voting Fraud Expert

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

Voting Fraud Expert

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

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

ACLU Challenge

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

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

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

Heroin

Forensic Pathologist Opines Death Caused By Heroin Not Physical Trauma

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

The Assault

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

The Trial

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

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

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

The Verdict

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

Bible, Female Hands

Child Welfare Expert Testifies in Trial Against Mormon Church

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

The Lawsuit

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

Child Welfare Expert Trial Testimony

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

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

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

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

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

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

Brain scan, CT Scan

Neuropsychologist Testifies That Killer is a Psychopath

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

The Crime

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

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

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

Expert Testimony

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

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

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

Other Expert Testimony

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

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

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

Sentence

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

Biking, Race

Judge Limits Testimony in Lance Armstrong Trial

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

Lawsuit

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

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

Claims at Issue

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

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

Evidentiary Ruling

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

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

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

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

a judge's chair

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

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

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

Court Appoints Single Expert for Prosecution and Defense

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

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

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

Two Is More Expensive Than One

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

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

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

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

Expediency of Limiting Cost Should Not Outweigh Constitutional Requirements

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

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

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

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

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

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

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

 

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

Scientist using pipette in laboratory

AG Jeff Sessions Ends Obama-Era Review of Forensic Expert Techniques

Attorney General Jeff Sessions has put an end to an Obama-era Justice Department initiative which created a panel of independent forensic experts tasked with reviewing crime lab procedures used by the FBI and federal prosecutors. The National Commission on Forensic Science (NCFS) was introduced in 2013 with the goal of ensuring forensic expert testimony from the FBI and other law enforcement officials was accurate and based on sound scientific procedures. Sessions announced that the panel will be replaced by an internal task force, but did not provide details about when or how the transition would occur.

National Commission on Forensic Science Created Under Obama DOJ

After a series of damning reports which questioned the scientific validity of common forensic expert techniques used to convict defendants in federal criminal trials, the Obama-era DOJ created the NCFS to review expert testimony and provide recommendations for prosecutors and law enforcement agencies. Notably, the NCFS targeted traditional methods of forensic investigation used to identify and prosecute defendants that have little scientific support, including bite-mark analysis, chemical analysis of bullets to ID a gun, and hair match analysis. The commission called for higher standards of forensic expert testimony which not only ceased use of these common tactics, but also increased scrutiny on when and how prosecutors used DNA evidence – which can be reliable if analyzed correctly.

The NCFS produced a report last year which encouraged the DOJ to set higher standards of review for DNA and fingerprint evidence, and asked for the government to dedicate millions of dollars to the FBI budget to improve forensic expert practices in these scientific areas. Although the report was heavily criticized by prosecutors and law enforcement officials for contradicting years of settled law on forensic expert testimony, the DOJ welcomed suggestions and set the tone for continued review of techniques used to identify guilty defendants and clear innocent ones. The commission’s report and advisement resulted in a $20 million research effort to improve forensic techniques in crime labs across the country, and increased ethical standards for forensic experts and labs whose work is used during criminal trials.

Despite a letter from several forensic science experts on the panel written to Sessions which implored the Attorney General to continue to value the contributions of the scientific community in setting standards for forensic science experts, the NCFS will be discontinued in favor of an internal DOJ board which may or may not involve any forensic experts.

AG Sessions Also Ends Review of FBI Testimony

Central to concerns about the use of faulty forensic expert testimony was a 2009 report from the National Academy of Sciences which began to question the scientific validity of forensic techniques used heavily by the FBI to convict defendants. A second report in 2012 further exposed FBI expert witnesses for using flawed science and botched methodologies to help convict hundreds of potentially innocent people, some of whom were sentenced to death. In 2014, the FBI undertook a wide-scale review of its own expert testimony and scientific methodologies in an effort to ensure forensic witnesses used against criminal defendants were basing their conclusions on sound scientific principles.

The review identified flaws in the methodology used to match hair samples to defendants and bullets to weapons – two techniques that FBI experts had grossly overstated the effectiveness of for years. Although the review has been ongoing for nearly three years, AG Sessions announced the process would no longer continue. The DOJ announced that there are plans to continue to ensure that testimony based on forensic science is accurate and reliable, however, independent experts are no longer involved in the process. The move has been welcomed by federal prosecutors who have long criticized the commission and use of independent scientists to increase standards in forensic expert testimony for being overly expensive and creating difficulties for law enforcement and prosecutors.

Sessions Criticized for Ending Independent Forensic Science Panel

In the wake of his announcement that he would not continue use of the NCFS, Sessions has received strong criticism from a number of scientists and organizations committed to improving forensic expert testimony. The commission’s involvement in analyzing forensic evidence led to elimination of unreliable techniques such as bite-mark evidence, and has better identified when and how DNA can be used – contributions which forensic experts believe are invaluable to criminal justice.

As exonerations of defendants convicted on the strength of faulty forensic techniques continue to rise, scientists and other critics of Sessions’ actions expressed concern over the reduced role of forensic experts and doubt that an internal board created within the DOJ could accomplish the same objectives as an independent commission of scientists could. Regardless of objections from the forensic science community, Sessions will continue his plan to internalize review of expert testimony with the goal of making forensic science available to law enforcement.

Ohio wooden Mallet

Ohio Suspends Crime Lab Experts

Prosecutors in state courts often depend on expert witnesses who are employed by state crime labs. Some of those labs have been criticized because the experts feel pressured to slant their testimony in ways that favor the prosecution. The labs have also been criticized for hiring experts without verifying their credentials and for failing to give the experts the training they need. In addition, state crime lab analysts have been criticized for failing to follow lab procedures to assure that test results are accurate.

Ohio is the most recent state to experience crime lab controversy. The lab has been subject to fourteen internal investigations in the last five years, but the Ohio Bureau of Criminal Investigation recently made its escalating concerns about crime lab employees clear by suspending five analysts and firing another.

Ohio Crime Lab Controversy

The Columbus Dispatch reports that the Ohio Bureau of Criminal Investigation “suspended five employees at state crime labs and fired another for not properly testing drug evidence collected by law enforcement.” The employees were forensic scientists or their supervisors.

The employee who was fired committed several violations of lab policy, including “egregious case documentation.” One suspended employee failed to make a proper record of drug test results 23 times over a 6-month period. Another employee was “dishonest when summarizing findings.”

Prior to the most recent suspensions, a BCI lab analyst was suspended because she deliberately contaminated evidence before it could be tested for DIA. The employee, a fingerprint examiner, was allegedly envious because “the DNA section gets all the attention.”

While BCI’s director claims the mistakes did not compromise any criminal investigations, he may be putting a favorable spin on bad news. Defense attorneys who cross-examine crime lab experts during trials are likely to point out that experts who fail to follow one procedure may be failing to follow other procedures, calling the trustworthiness of their testimony into question. Certainly, the employee who was dishonest when summarizing test results has compromised his integrity and may therefore be less effective as an expert witness.

Lack of Objectivity

The latest round of discipline follows the Dispatch’s reporting in October 2016 of issues surrounding the employment of G. Michele Yezzo, a forensic scientist who retired in 2009. Yezzo was criticized by colleagues because “she wasn’t objective in her work and wanted to please law enforcement.”

Concerns that Yezzo slanted her testimony have prompted the Ohio public defender’s office and the Ohio Innocence Project to review thousands of cases in which Yezzo’s work contributed to a conviction. Yezzo testified as an expert witness in hundreds of those cases. At least one prisoner has been freed as a result of Yezzo’s misconduct.

Other convictions may be jeopardized, although most of the evidence that Yezzo tested was destroyed after the cases ended. If Yezzo lied about the test results in those cases, defendants may have a difficult time proving their innocence.

Yezzo’s retirement, however, was not prompted by her dishonesty, but by her failure to pass a proficiency test after 33 years of employment. Until that point, Yezzo’s competence was apparently not a concern to BCI, as long as she gave testimony that supported the prosecution.

Crime Lab Reform

Ohio Attorney General Mike DeWine contends that BCI is a professional and “ethically sound” organization. That contention is at odds with news reports of crime lab evidence that has been “lost, mishandled and contaminated.”

BCI Director Thomas Stickrath says those problems are being taken seriously, as the recent suspensions of lab personnel demonstrate. He says he has implemented tougher standards “to make sure that Ohio is on the forefront of forensic science.”

Solving the problem, however, might demand more than better training and closer supervision of experts. Crime lab personnel told the Dispatch that BCI discourages employees from reporting misconduct by other employees. Supervisors and scientists reportedly retaliated against employees who called attention to violations of procedures or standards. Meaningful reform will require a change in the crime lab’s culture as well as improving the professional competence of its expert employees.

Dog Food

Lawsuit Failed To Show That Purina’s Beneful Sickened Thousands Of Dogs

After ruling that he could not accept the testimony of an expert witness, a federal court judge ruled in favor of Nestle Purina PetCare in a class action lawsuit that claimed the company’s Beneful brand dog food made thousands of dogs ill.

The Lawsuit

On February 5, 2016, Frank Lucido filed a lawsuit in California federal district court, alleging that one of his dogs died and two other became severely ill after eating Beneful exclusively. Lucido sought class-action status and $5 million in damages. The suit cited anecdotal evidence from over 3,000 pet owners who had similar complaints about Beneful.

Following a NBC News report on the lawsuit, many other dog owners came forward with concerns that their dogs may also have been harmed by Beneful.

Morgan Malone, 19, of North Carolina, stated that her miniature dachshund, Doc, suddenly took ill after consuming Beneful. “My little boy had been healthy and all of a sudden within a week got super sick and passed away…He had been eating Purina Beneful dry dog food.”

Julie Hyde, 39, of Sandwich, Illinois, stated, “I lost my dog who was 6-years-old, healthy as a horse just this past December and I know in my heart the food was the cause.” Hyde reported that her otherwise healthy 6-year-old pit bull suffered bloody stool, vomiting, and dramatic weight loss several days after switching to Beneful Healthy Weight dog food.

Purina’s Response

Purina responded to the suit by publishing a statement and question and answer section on their website. Purina denied the claims and stated that Beneful is safe for owners to feed their pets. Purina called the various reports by consumers “unsupported.”

Dr. Kurt Venater, director of veterinary strategy and programs at Purina, argued that the claims in the lawsuit were “false and misleading. … Vets know pets get sick for many reasons and the food they eat is often not the root cause. … The challenge is this can be confusing and alarming to pet owners.”

The Plaintiffs’ Expert

The plaintiffs consulted with a veterinarian and expert in veterinary toxicology. The plaintiffs’ expert tested Beneful kibble from 28 dogs who allegedly fell ill after eating the dog food. This sample represented only about 2% of the cases supposedly related to the Purina food.

The plaintiffs’ expert found measurable levels of mycotoxins, heavy metals, and propylene glycol in the food, but all were within limits of what federal regulators consider safe. The plaintiffs’ expert argued that FDA standards for mycotoxin levels don’t take into account the effects of regular, prolonged exposure to the chemicals — such as you might find in a dog eating the same food twice a day for years on end.

The court rejected the testimony of the plaintiffs’ expert, finding “His conclusions are, in fact, entirely inconclusive.” The court further found that the only way the veterinarian’s findings on these 1,400 dogs could have relevant and probative value, is if there is a “scientific basis for his opinions that chronic exposure to mycotoxins, etc. at the levels at issue may cause health problems in dogs.”

Scales, law books

Expert Witnesses Used During Trial of Dylann Roof

Dylann Roof has been convicted of murder for shooting nine black church parishioners in Charleston, South Carolina last year. Throughout the trial, prosecutors relied on a parade of expert witnesses to definitively connect Roof to the mass shooting and demonstrate that he was motivated by racial hatred. Roof faces a sentencing hearing in the coming weeks, and has announced through his attorneys that he will not use psychology expert witnesses to reduce his punishment.

Dylann Roof Convicted of Charleston Mass Murder

On June 17, 2015, Dylann Roof opened fire in a Charleston church during a prayer service and murdered nine black parishioners in a racially motivated mass shooting. After a brief manhunt, Roof was arrested and charged with 33 federal hate crimes when it became clear that he was a white supremacist who targeted the church with hopes of igniting a race war. In November of 2016, Roof was declared competent to stand trial, and the federal proceedings began in early December.

After a week-long trial, jurors needed only two hours to convict Roof of all 33 federal charges levied against him. Prosecutors built a meticulous case against the defendant, using not only his confession shortly after his 2015, but a collection of expert witnesses who evaluated the evidence and fortified the state’s case. Of the 33 charges, 18 carry the possibility of a death penalty, and prosecutors paid careful attention to developing a case which would not be questioned should Roof be sentenced to death during the next phase.

Prosecutors Use Expert Witnesses to Convict Dylann Roof

Early in the Dylann Roof trial, prosecutors called a GPS expert witness to support their claim that the defendant had been targeting the Mother Emanuel Church prior to his attack. J.D. Krull told jurors that the defendant’s GPS data indicated he visited Mother Emanuel at least three times prior to the June 17th shooting, suggesting that Roof premeditated his attack and planned his route. Prosecutors also called a ballistics expert witness to connect the .45-caliber Glock pistol that Roof purchased shortly before the shooting. Firearms expert witness James Green testified that investigators found 74 shell casings and dozens of bullet fragments at the scene which were connected to Roof’s gun.

Prosecutors also called FBI expert witnesses to discuss the defendant’s hate-filled manifesto which detailed his racial hatred of Hispanics, Jewish Americans, and African Americans and announced his intention to take violent action. FBI experts used information contained on USB drives found in Roof’s car which contained graphic images and racist content to show jurors that the defendant had engaged in a premeditated hate crime targeting black worshipers. FBI agent Tracy Sicks testified that Roof maintained a racially charged website which detailed his manifesto and the plan for the attacks on Mother Emanuel Church.

Prosecutors concluded their use of expert witnesses by having medical experts testify to the condition of the bodies and the cause of death. Jurors were shown graphic images of the crime scene and told by expert witnesses that the victims suffered multiple gunshot wounds consistent with the prosecution’s theory of a racially motivated hate crime.

Dylann Roof will not Call Psychology Expert Witnesses during Sentencing

Although he faces the death penalty for his conviction, Roof announced that he does not plan on calling psychology expert witnesses in an effort to avoid execution by explaining his pathology. During death penalty sentencing phases, prosecutors are charged with presenting aggravating circumstances which support execution while defendants are given the opportunity to present evidence of mitigating factors which can be used to reduce the sentence to life in prison. Attorneys for Dylann Roof have made it clear they intend to call mental health expert witnesses who could argue that the defendant suffers from paranoid schizophrenia, however, Roof recently submitted documents to the court which indicate he does not intend to use psychologists during the sentencing phase.

Following his conviction, the 22-year-old Roof formally requested that he serve as his own counsel for the duration of the trial, and denied the need for mental health expert testimony. A journal found in Roof’s car following his arrest indicated that the defendant was “morally opposed” to psychology because he says it is a “Jewish invention that does nothing by invent diseases and tell people they have problems when they don’t.” Dylann Roof has until January 3rd to change his mind about representing himself, and it is possible he will rehire his defense team and allow them to use a mental health expert to testify to mitigating circumstances. It is also possible that the judge will decide Roof lacks the mental capacity to act as his own lawyer even if he was competent to stand trial.