Category Archives: In the News

Articles about legal issues currently in the news.

Employment Discrimination Expert Witnesses Featured in Silicon Valley Lawsuit

The high profile gender discrimination lawsuit filed by Ellen Pao against her former employer Silicon Valley investment firm Kleiner Perkins Caufield & Byers culminated this week with an expert witness hired by the plaintiff eviscerating a defense expert’s testimony that the venture capital firm did not engage in discrimination against women.  Pao’s $16 million lawsuit has gained national attention for calling to question the male-dominated culture of Silicon Valley, so it is no surprise that both sides have turned to employment discrimination expert witnesses to discuss treatment of women in a high-end venture capital firm.

Ellen Pao Files High Profile Gender Discrimination Case against Venture Capitalist Firm

Ellen Pao, who was terminated from employment by venture capital firm Kleiner Perkins Caufield & Byers in October 2012, filed a lawsuit in California alleging that the company engaged in a pattern of sexual discrimination that created a hostile work environment for women.  During the trial, which has been closely watched in Silicon Valley investment circles, Pao’s lawyers painted a misogynistic picture of Kleiner Perkins by firing off a number of allegations including male partners saying women “kill the buzz” at meetings, taking all-male ski trips and dinners with Al Gore, having sexually inappropriate conversations about porn stars and “hot” female executives while on private planes, and giving inappropriate gifts such as a book of erotic poetry given to Pao by a senior male colleague.

Pao also claims that she was the victim of inappropriate sexual advances, was passed over for promotions because of her gender, and was retaliated against by a senior partner with whom she had an affair after she called the relationship off.  Citing an instance where two men with less seniority and experience were promoted instead of her, Pao highlighted her sexual discrimination lawsuit by arguing that the male partners preferred men in management roles.

Kleiner Perkins has focused much of its defense efforts on pointing to a consistent pattern of negative performance reviews given to Pao since she joined the firm in 2005, and her conflicts with employees throughout the firm.  Attorneys for Kleiner Perkins presented evidence to the jury that Ellen Pao was not qualified to succeed at the company regardless of her gender.  Supplementing the defense’s argument was a report from an outside investigator, Stephen Hirschfeld, who argued that the firm’s employment practices showed no evidence of gender discrimination.

Defense Expert Argues Against Gender Discrimination

On the eighth day of the trial, Stephen Hirschfeld took the stand as a defense expert witness to present the results of his investigation into Pao’s allegations that Kleiner Perkins engaged in gender bias against female employees.  According to Hirschfeld, Ms. Pao is smart, but difficult to work with and was unable to substantiate her serious allegations against the company.  Hirschfeld found no evidence of all-male trips that Pao complained of, and concluded that the relationship she had with a former managing partner at the firm was consensual and without consequence on her career.  After interviewing women who worked at Kleiner Perkins, Hirschfeld called the environment “tough but fair” where women can succeed.

In regards to Pao not getting promoted, Hirschfeld presented evidence that the plaintiff’s performance had not been well reviewed throughout her career, concluding that the partners had reason to pass over her in favor of more junior members of the firm.  Pao’s attorney criticized Hirschfeld for providing an incomplete analysis of the Kleiner Perkins environment, and this week the plaintiff called her own expert witness to contradict Hirschfeld’s investigation.

Plaintiff Expert Criticizes Bias Investigation in Pao Gender Discrimination Case

Attorneys for Ellen Pao called Allison West of Employment Practices Specialists as an employment discrimination expert witness to contradict Hirschfeld’s report that Kleiner Perkins did not engage in discriminator behavior.  According to West, Hirschfeld’s analysis failed to thoroughly evaluate whether or not the men at the company were held to different standards than the women.  While Hirschfeld researched Pao’s direct claims, West argued that he failed to look at men who were in the same position as the plaintiff to determine if they had similar challenges in succeeding at the firm.  Further, West testified that Hirschfeld did not completely investigate Pao’s complaints by failing to interview all relevant witnesses or consider evidence supporting her discrimination argument.

On cross-examination, West was subject to a rigorous attack from lead attorney for Kleiner Perkins, Lynne Hermle.  Hermle pointed out that Pao’s performance reviews had very little positive feedback, while the reviews for the two men who were promoted over her had several glowing remarks, arguing that West had also conducted a bias investigation into Pao’s case.  The Pao trial, which could send significant ripples across the Silicon Valley business landscape, will wrap up this week.

Forensic Expert Witness Claims Death was Suicide in Utah Murder Trial

The case against a Utah doctor accused of murdering his wife hit a snag this week when a forensic expert witness testified that the wounds the victim suffered were likely self-inflicted, suggesting the death was a suicide.  The expert testimony is the latest dramatic turn in the murder trial of Johnny Brickman Wall, and gives defense attorneys a compelling argument for sufficient reasonable doubt to warrant an acquittal.

Utah Doctor Accused of Murdering His Wife

In 2011, Uta von Schwedler, the 49-year-old ex-wife of Johnny Wall, was found dead in a bathtub full of water in her Utah home.  The subsequent murder investigation turned to Wall due to the couple’s messy divorce and bitter battle for custody of the four children. After examining all the available evidence, prosecutors charged the 51-year-old Wall with first-degree felony murder in von Schwedler’s death, and have built a case arguing that he attacked his ex-wife in her home and left her body in the bathtub.

Police and prosecutors point to defensive wounds on von Schwedler’s arms and an injection mark that was covered by a stab wound – where Wall allegedly injected her with Xanax – as evidence that the woman was murdered by her ex-husband, however, the cause of death has not been definitively settled. Throughout the investigation and trial, Wall and his defense team have argued that von Schwedler’s death was a suicide, and called upon forensic expert Dr. Judy Melinek to cast doubt on the conclusion that von Schwedler was murdered.

Forensic Expert Suggests Victim Committed Suicide

Giving genesis to the defense’s argument that von Schwedler’s death was a suicide rather than a homicide was the uncertainty by the Utah assistant medical examiner who listed her death as “undetermined” due to difficulty ascertaining the cause.  Although the medical examiner did not take a position, the defense called forensic expert witness Dr. Judy Melinek took the stand to present an argument that von Schwedler injured herself and took Xanex before drowning in her bath tub.

According to Dr. Melinek, the cuts on von Schwedler’s arms that prosecutors claimed were defense wounds were likely self-administered.  Dr. Melinek observed that the wounds were parallel, which usually indicates a suicide attempt rather than defensive wounds, which are usually at an angle or horizontal on the arm.  Further, Melinek informed jurors that the cuts showed sign of hesitation, which a suicidal person does when “they are testing to see what they can tolerate.”

Dr. Melinek also pointed out that there were no signs of a struggle at the scene, which, in her expert opinion, indicates von Schwedler was not attacked.  When asked on cross-examination if the scene was staged, Dr. Melinek responded that it did not appear to be, citing a lack of Xanax pills at the scene to further the appearance of a suicide.  Overall, Dr. Melinek’s expert opinion was that von Schwedler took Xanax, slit her own wrists, got into the bathtub and drowned – leaving the defendant Wall out of the equation.

Defense Seeks Reasonable Doubt with Expert Testimony

In offering Dr. Melinek as a forensic expert witness, Wall’s defense team has presented a compelling argument to reasonably doubt the prosecution’s claims that the defendant killed his wife.  The legal standard for conviction in criminal trials allows jurors to convict only if the defendant is guilty beyond all reasonable doubt, and Dr. Melinek’s expert testimony provides a strong basis for doubt.  Even if jurors think it is more likely that the prosecution is right, the existence of a second theory of von Schwedler’s death that is supported by an experienced forensic expert witness could weaken the jury’s belief in guilt sufficiently to acquit Wall.  Dr. Melinek might be wrong, and might even have failed to convince jurors that the death was a suicide, but her expert testimony that von Schwedler’s death was not a homicide casts an impossible-to-ignore shadow over the prosecution’s case.

Aaron Hernandez Murder Trial Features Expert Witness Testimony

The murder trial of former NFL star Aaron Hernandez continued this week with prosecutors presenting two expert witnesses who placed the defendant and the victim at the scene of the shooting. As Hernandez’s murder trial progresses, prosecutors have built their case with experts to interpret the evidence for jurors and fingerprint and DNA testimony is the latest attempt to bolster the state’s case.

Aaron Hernandez on Trial for Murder

Hernandez is on trial for the murder of Odin Lloyd, a 27-year-old acquaintance of the former New England Patriot who was shot and killed on June 17th, 2013. Prosecutors charged Hernandez after police investigators uncovered evidence placing Lloyd and Hernandez together on the night of the murder and a series of communications between the two that indicated they had a recent disagreement.

Although the gun used to shoot Lloyd has not been found, and police have not been able to directly point to Hernandez as the shooter, the defendant can be found guilty of murder under a Massachusetts “joint venture” law that allows for conviction of any person who knowingly participated in a plan to commit the crime. Hernandez, who allegedly worked with two other men to orchestrate Lloyd’s killing, was arrested on June 26th, 2013 with his trial opening on January 29th of this year.

Police Fingerprint Expert Witness Testifies in Hernandez Murder Trial

Massachusetts State Police Trooper David Mackin took the stand this week to explain the fingerprint process that investigators used to place Hernandez and two alleged accomplices, Ernest Wallace, Jr. and Carlos Ortiz, at the scene of Lloyd’s murder. Central to Mackin’s testimony was evidence found in a Nissan Altima that prosecutors allege Hernandez rented in order to transport Lloyd to the murder scene on the night of June 17th. According to Mackin’s fingerprint investigation, all four men – Hernandez, Lloyd, Wallace, and Ortiz – left fingerprint evidence inside of the vehicle. Hernandez’s were on the driver’s side door handle and Lloyd’s were on the rear passenger door.

DNA Expert Witness Corroborates Prosecution in Hernandez Trial

Adding to the testimony from Trooper Mackin, prosecutors looked to a DNA expert witness from the Massachusetts State Police Crime Lab, Diana Fife Biagotti. Biagotti testified that DNA from Hernandez and Lloyd were found on the remains of a marijuana cigarette butt from the scene of the shooting, supporting the prosecution’s claim that the two men were together in the place where Lloyd was killed. Further, Biagotti testified that the defendant’s DNA was detected on a shell casing recovered from the Altima after it was returned to the rental agency. Police investigators recovered the shell casing stuck to a piece of chewing gum, and, according to Biagotti’s expert testimony, the casing contained evidence that Hernandez had handled it after it was fired.

Hernandez Attorneys Challenge Prosecution Expert Witnesses

Attorney for Hernandez, James Sultan, took both prosecution expert witnesses to task for failing to reconstruct a complete story of the night of the shooting. Sultan accused both experts of coming to conclusions that they wanted to see or hoped to see rather than objectively testifying about the facts of the case. In response to Trooper Mackin’s fingerprint testimony, Sultan pointed out that the fingerprints in the Altima could have been made at any time, and did not necessarily support the conclusion that Hernandez and Lloyd were in the vehicle together. Sultan also question Biagotti for failing to test other items found in the vehicle for DNA, suggesting that the police cherry picked evidence rather than conduct a thorough investigation.

Prosecutors have also presented expert witnesses on forensic video evidence to analyze footage of Hernandez’s activities on the night in question, and on crime scene reconstruction to suggest that Lloyd’s killers were in close proximity to him when he was shot. Sultan has challenged each expert for failing to fully connect all the dots back to Hernandez in order to give jurors an accurate picture of Lloyd’s murder. The trial is expected to last late into March with the defense yet to present its case.

Jesse Matthew Murder Trial on Hold for DNA Expert Witness

The murder trial of Jesse Matthew, Jr. has been delayed after a judge ruled this week that the defense would be entitled time to use the services of a state-appointed DNA expert witness.  Matthew is facing trial for murder in the death of Hannah Graham late last year, and will consult a DNA expert prior to mounting his defense.

Jesse Matthew, Jr. a Suspect in the Death of Hannah Graham

Graham, a student at the University of Virginia, disappeared in September of last year after a night out.  Suspicion fell on Matthew after surveillance footage showed him leaving a Virginia bar with Graham on the night she disappeared.  In October, Graham’s remains were discovered on an abandoned farm near UVA’s campus near the location of the remains of a Virginia Tech student, Morgan Harrington, that were discovered in 2010.

After a brief investigation, Matthew was arrested for Graham’s disappearance and death, leading to evidence that he was involved with Harrington’s murder as well.  According to police, forensic evidence obtained after Matthew was arrested links him to the death of both girls, leading investigators to issue the following statement, “For the past five years, the Virginia State Police has been aggressively pursuing the investigation into the disappearance and death of 20-year-old Morgan D. Harrington of Roanoke, Va. Last week, the arrest of Jesse L. Matthew Jr., 32, of Charlottesville, Va., provided a significant break in this case with a new forensic link for state police investigators to pursue.”

Although the investigation continued after Matthew was arrested, police and prosecutors presented preliminary forensic evidence sufficient to charge the defendant with the murder of both Hannah Graham and Morgan Harrington, as well as a 2005 sexual assault that took place in northern Virginia.

Jesse Matthew Requests Delay to Hire DNA Expert Witness

Given the forensic evidence linking Matthew to both murders, his defense team argued that he should be entitled to the opportunity to have a DNA expert witness evaluate the evidence and provide a report.  With the trial set to begin on June 29th, Matthew’s defense attorneys argued that they needed more time to allow them to find a DNA expert and review the forensic evidence.  Prosecuting attorney Denise Lunsford acknowledged that the Commonwealth’s case relied “in some way on DNA evidence,” and did not object to the motion to delay the trial in order to find the appropriate expert witness.

After reviewing Matthew’s request, the trial judge overseeing the proceedings granted his request to continue the trial in order to appoint a qualified DNA expert witness to review the forensic evidence used by the prosecution.  Given that Matthews is facing 20-years to life for his alleged crimes, the ruling comes as no surprise.  Defendants are entitled to a full and fair defense in criminal trials, and the seriousness of the charges combined with the prosecution’s reliance on forensic evidence necessitates a ruling that Matthew be entitled to the appointment of a DNA expert to testify in the upcoming trial.

The judge did not set a new trial date, but a hearing on May 5th will finalize the details of the trial and the expert witness who will be appointed to the defendant’s case.

New Jersey Judge Excludes Expert Witness Testimony in Accutane Lawsuit

A New Jersey judge struck a blow to thousands of pending cases against the manufacturer of Accutane this week by denying plaintiffs use of an expert witness connecting the drug to Crohn’s disease.  Finding that the expert testimony failed to meet the standards of reliable scientific analysis, Atlantic County Superior Court Judge Nelson Johnson prevented plaintiffs from using a key expert in their Accutane lawsuit.

Plaintiffs Allege Accutane Causes Crohn’s Disease

By February of this year, more than 6,700 lawsuits against Accutane’s manufacturer Roche Laboratories were combined and heard by Judge Johnson.  Plaintiffs across the country claim that the acne medication posed several harmful side effects including depression, birth defects, ulcerative colitis, and inflammatory bowel disease (IBD).  Crohn’s disease is a chronic gastrointestinal type of IBD with symptoms ranging from severe diarrhea, fatigue, abdominal pain, rectal bleeding, and weight loss.  Crohn’s disease can lead to cancer, bowel perforation, and other life-threatening health complications.

According to plaintiffs, Accutane increased the risk of Crohn’s disease, and Roche Laboratories failed to provide adequate warning about the drug’s side effects.  In order to support allegations, the plaintiffs submitted reports by two expert witnesses who advanced research that claimed to connect the acne drug to Crohn’s.

Accutane Plaintiffs turn to Expert Witnesses

At issue before Judge Johnson were the expert witness reports from Dr. Arthur Kornbluth, a professor at the Mount Sinai Medical School, and David Madigan, a statistics professor at Columbia University.  Dr. Kornbluth and Madigan compiled and interpreted information from hundreds of studies, reports, and treatises from relevant scientific literature in order to present Judge Johnson with a consolidated report that weeds through the existing work on Accutane and presents an argument that the drug increases the risk of Crohn’s disease.

According to the expert witness report from Kornbluth and Madigan, there are several unreliable studies on the effects of Accutane that downplay its negative side effects.  The two experts discounted these works, and highlighted a selection of other studies and statistical data that point to a connection between the acne medication and IBD complications including Crohn’s.

New Jersey Judge Dismisses Accutane Plaintiffs’ Expert Reports

Acknowledging that Kornbluth and Madigan were accomplished experts in the field, Judge Johnson nonetheless found their report to fall short of the “sound and well-founded methodology” that is expected of expert witnesses in defective drug litigation.  Of primary concern to Judge Johnson was the experts’ reliance on a small selection of available studies on the connection between isotretinoin, the active ingredient in Accutane, and IBD.  Johnson, who personally reviewed 400 documents the two expert witnesses relied on, pointed out that the studies Kornbluth and Madigan looked to were small samples of the available research.  Finding that the plaintiffs’ experts dismissed larger studies that did not point to a connection between Accutane and Crohn’s, Judge Johnson excluded the experts for selectively presenting research and being “willing to contort the facts and torture the logic associated with plaintiffs’ hypothesis.”

Throughout his opinion, Judge Johnson remained true to the role of judges as gatekeepers of expert witness scientific reports by focusing less on the conclusions reach by Kornbluth and Madigan, and more on the methodological process which the experts used.  Johnson found that the research presented by the Accutane experts selectively focused on reports that bolstered their conclusions and was therefore limited in its scope.  Concluding that the Kornbluth and Madigan were driven more by conclusions than by sound scientific research, Judge Johnson excluded their testimony, effectively pumping the brakes on thousands of Accutane lawsuits.

California Law Allows Appeals for Recanted Expert Witness Testimony

A murder case in California has prompted a new state law that allows courts to consider re-trials if an expert witness repudiates his testimony after a conviction.  William Richards, convicted of the 1993 murder of his wife Pamela on the strength of a bite-mark expert, will get a chance to have his case reviewed by the California Supreme Court after the state’s expert witness law went into effect last month.

Expert Witness Aids 1993 Murder Conviction

In 1993, Pamela Richards was strangled and had her skull crushed in what was a clear murder.  Investigators built a case against her husband, William, based in part on a bite mark on the victim’s hand.  The bite mark was identified as William Richards’ based on testimony by Norman Sperber, a well-known forensic dentist in San Diego who had contributed to conviction of serial killer Ted Bundy by identifying bite-marks on his victims.  During Richards’ 1997 trial, Sperber testified that only 2 out of 100 people would have the defendant’s unusual tooth feature that appeared in the bite-mark on Pamela’s hand.

After the conviction, upon reviewing a clearer photo, Sperber claimed that Richards’ teeth were actually not consistent with the mark on his wife’s hand, suggesting that he was not the cause of the wound.  In 2012, the California State Supreme Court affirmed Richards’ conviction stating that a change in expert witness testimony did not necessarily set grounds for vacating it.  Finding that an expert’s testimony must be “objectively untrue,” something not demonstrated in the Richards’ case because no counter-experts reputed Sperber’s claim, the Court declined to overturn his conviction on appeal.

California Law Allows Appeals on Repudiated Expert Testimony

After the State Supreme Court denied Richards’ appeal, the California legislature went into action crafting a bill that would allow courts to strongly weigh repudiation of expert witness testimony, even if the expert was not directly contradicted during or after the trial.  The result was a new law that states expert testimony which has been recanted will be treated as false evidence, and, if the defendant can show it was key to the conviction, the repudiated testimony will serve as strong grounds for the conviction to be overturned.

In an interview with the Associated Press, Laurie Levenson of Loyola Law School explained the need for such a law, “More and more, experts are reconsidering their opinion not because they have pangs of guilt, but because in fact the science changes. You want a legal system that recognizes that reality.”  The California law, signed into effect by the Governor this January, allows courts to take into account the fact that expert witnesses may recant testimony after trial when considering appeals, giving attorneys fighting to overturn convictions an option when key experts change their testimony.

The passage of the law may give William Richards another chance to overturn his conviction after more than 25 years in prison, and will also open the doors for other defendants whose convictions turned on experts who later recanted what was said during trial.

Pennsylvania Murder Trial Costs Taxpayers Thousands in Expert Witness Fees

A capital murder trial in Pennsylvania has cost York County taxpayers over $16,000 in expert witness fees, with more to come when the case goes to trial in July.  The defendant, unable to pay for his representation, is entitled to a complete defense which includes experts on pathology and mitigation who will testify on his behalf during the upcoming trial.

Pennsylvania County Pays Expert Witness Fees

Ross William Crawford, 44, is accused with first-degree murder for allegedly stalking and beating Cherylann Dowell, 53, to death in June of 2012.  Prosecutors argue that since Crawford was under a no-contact order to stay away from Dowell after a history of abusing her, there is sufficient aggravating circumstance in the case to seek the death penalty.  Pennsylvania law allows for the death penalty if aggravating circumstances of the crime elevate the heinous nature of the act, and prosecutors argue that Crawford had established a pattern of abuse and stalking that sufficiently raised his culpability to warrant a death penalty verdict.

As is required by the Constitution, jurors must determine whether or not any mitigating factors outweigh aggravating factors before issuing a death penalty verdict, and defense attorneys requested the court grant funding for use of expert witnesses to highlight mitigation.  Additionally, defense attorneys requested funding for an independent pathologist to analyze the details of the Dowell’s death and, presumably, argue against the presence of aggravating circumstances that would suggest the death penalty is warranted.

From July 2012 to May 2014, the York County court approved a payment of $16,000 to pay for the two expert witnesses the defense team for Crawford has hired.  Judge Gregory Snyder set a cap for the expert fees as follows: the pathologist, who charges $300 per hour, can be paid up to $3,000; the mitigation expert, who charges $100 per hour, has fees capped at $10,825; and a third expert witness, a psychiatrist who charges $500 per hour, has fees capped at $10,000.  If all expert witnesses work to the capped amount, the total bill to be paid by the county will be $23,825.  Add in the more than $9,000 in attorney’s fees, and the Crawford murder trial is costing York County significantly.

Capital Murder Trials Accumulate Fees

The Crawford trial is not a unique situation, but is a representative of the significant cost attached to capital murder trials.  No matter how heinous the crime, every defendant has a right to a fair and vigorous defense which typically requires, among other fees, expensive expert witness testimony.  Capital murder trials carry an additional cost due to the split phases of the trial: the guilt phase and, if necessary, a separate penalty phase.  Expert witnesses are required for both portions of the trial, and in the Crawford case, the pathologist will be a part of the guilt phase of the trial while the psychiatrist and mitigation expert witness will contribute separately to the penalty phase.

Because defendants have a right to a complete defense, lack of funds cannot be a barrier to hiring expert witnesses for any criminal trial – although capital trials are more likely to grant leeway in expert witness requests.  Like many counties, York County sets aside a significant dollar amount, $320,000 in 2015, to pay for professional services for indigent defendants such as psychiatric counseling or expert witness services.  While tax payers may be turned off by the thought of contributing significantly to the defense of an accused murderer, the Constitution requires a fair criminal trial which typically requires expert witness testimony to analyze and explain facts of the crime.

Expert Witnesses Testify in Birmingham Police Pepper Spray Lawsuit

Expert witnesses on police tactics and psychology took the stand last week in a lawsuit filed against Birmingham Police Officers for using pepper spray to subdue students in public high schools.  The lawsuit has been filed on behalf of eight high school students who allege the local police were too quick to use pepper spray and caused them physical and psychological harm.

Birmingham High School Students File Pepper Spray Lawsuit

Leading the case against the Birmingham Police Department (BPD) are attorneys from the Southern Poverty Law Center (SPLC) who allege that that police officers stationed in Birmingham high schools used pepper spray on an estimated 200 students between 2006 and 2011.  The lawsuit, originally filed on behalf of eight former students at a Birmingham high schools, has grown to a class action that is requesting monetary damages for six of the named plaintiffs and an injunction against the BPD forcing police to stop using pepper spray until better training is available.  Ebony Howard, lead attorney for the SPLC claimed the lawsuit was filed because, “All Birmingham students have a fundamental right to attend school without the fear that they will be subjected to pepper spray on a whim.”

Birmingham’s Chief of Police has defended allegations in the lawsuit by testifying that students were not subject to pepper spray unless it was absolutely necessary to subdue them and prevent violent or disruptive behavior.  Chief A.C. Roper argued that each of the named plaintiffs was engaged in violence and resisted police involvement before the use of mace. Further, attorneys for the BPD have noted that all officers are subject to rigorous training on the proper use of pepper spray and “has been accredited by the Commission on Accreditation for Law Enforcement Agencies.”  Chief Roper also pointed out that police officers must not comply with use of force training requirements two times a year that teach responsible pepper spray use, but must defend every decision to administer the chemical spray on students.

In an effort to demonstrate that the BPD was overzealous in its use of mace on high school students, attorneys for the plaintiffs called expert witnesses to critique the appropriateness of pepper spray against students and to opine on the psychological effects mace has on children subject to it.

Expert Witnesses Used in Birmingham Pepper Spray Lawsuit

Earlier this week Daniel Coulombe, a former police chief who offers his services as an expert witness in law enforcement and police tactics, took the witness stand on behalf of the plaintiffs.  Coulombe testified that, in his opinion and experience, pepper spray was not an appropriate use of force against high school students.  Further, Coulombe claimed that when police use pepper spray in a high school environment, they are violating the student’s rights to an environment safe of excessive force.  Coulombe went on to explain to jurors the proper procedures for neutralizing and restraining an unruly and potentially violent student that did not involve pepper spray.

Attorneys for the SPLC also called Dr. Daphne Glindmeyer to the stand as an expert in the psychological effects that the use of chemical spray has on students.  Dr. Glindmeyer is a psychiatrist based in Louisiana who has experience working with victims of trauma, particularly from the use of pepper spray.  During her expert testimony, Dr. Glindmeyer stated that the named plaintiffs in the lawsuit, one of whom was pregnant, all exhibited symptoms of trauma after being exposed to pepper spray at the hands of the BPD.  Expanding beyond the name plaintiffs, Dr. Glindmeyer testified that many students in Birmingham schools who could be exposed to pepper spray, directly or indirectly, use ADHD medication and could suffer severe psychological or lasting physical harm.

Birmingham Police Attorneys Challenge Plaintiff’s Expert Witnesses

During cross examination of Coulombe, the defense challenged the police tactics expert for lack of experience in an environment as large or diverse as Birmingham.  The BPD, which has nearly 800 officers, dwarfs Coulombe’s former department of 24 officers and is forced to deal with circumstances that the plaintiff’s law enforcement expert would not have sufficient experience with.  Arguing that he could not provide adequate perspective on the appropriateness of the BPD’s use of pepper spray, attorneys for the department looked to downplay his contributions to the case.

Defense attorneys challenged the plaintiff’s psychologist expert on cross examination by pointing out that she did not speak to the students until nearly two years after police used pepper spray on them, and that none of the plaintiffs exhibited symptoms severe enough to indicate they suffered from PTSD. Defense attorney Elizabeth Shirley argued, “All they have are symptoms, according to this doctor, and those symptoms can come from any physical encounter: any fight, any kick, any punch, strike, any sort of physical integration with anyone in life.”

The trial, which is a bench-trial to be ruled upon by U.S. District Court Judge Abdul Kallon, is schedule to continue this week when the defense takes center stage.

Forensic Video Expert Witness Testifies in Murder Trial

A forensic video analyst served as a crime scene expert witness in a murder trial this week in an effort to aid defense attorneys reconstructing the circumstances leading up to a deadly shooting incident. Grant Fredericks, a teacher at the FBI National Academy, took the stand as an expert witness in the murder trial of Antonio Hutchins who argues that he shot the victim in self-defense and should not be found guilty of murder.

Defense Attorneys Turn to Video Evidence

On June 25, 2013 a shooting outside of Save More Foods killed Cederick “Joe” Matlock and William Burt of Waterloo, Iowa. While Hutchins and his attorneys do not deny that he was responsible for the shooting, they have countered that he acted in self-defense after Matlock threatened him with a rifle the previous week in the Save More parking lot and made a threatening motion to him directly before the shooting began. In an effort to demonstrate that Hutchins was defending himself at the time of the shooting, defense attorneys compiled footage from nearby surveillance cameras for a display to the jury.

A total of 11 surveillance cameras were positioned near the shooting, however only one of them was in a position to record the shooting. The one camera able to document the incident was from an auto repair shop across the street from the parking lot, making the action difficult to follow and the people on camera difficult to discern. In order to maximize the effectiveness of the surveillance footage display, the defendant called upon forensic video expert witness Grant Fredericks.

Video Expert Witness Aids Murder Trial

Fredericks, who operates Forensic Video Solutions in Spokane, WA, is a video analyst expert with extensive background in forensic camera work. During his expert testimony, Fredericks broke down the compiled video footage using a variety of camera angles to recreate the scene for jurors. Defense attorneys for Hutchins requested that Fredericks identify the key figures in the shooting before, during, and after the incident and explain to the jury what the video tape showed.

While breaking down the video footage, Fredericks identified Hutchins and a friend of his speaking to someone in a car in the Save More parking lot at 6 PM and 13 seconds before being approached by Matlock, Burt, and some other acquaintances at 6 PM and 34 seconds. Moments later, at 6 PM and 47 seconds, everyone begins to flee when Hutchins begins shooting. Although the cameras were able to provide a video recreation of the homicide, the audio was difficult to sync up due to the use of several different cameras. While the defense attorneys for Hutchins did not ask Fredericks to identify the threat that the defendant perceived, such a factual conclusion is impermissible from an expert, they did have the video expert demonstrate to the jury that the surveillance footage captured a scene that fit with the defendant’s story of the crime: Matlock and his friends approached him, made threatening overtures (not clear on the video), and he began shooting.

Prosecutors Question Usefulness of Video Expert Witness

In response to the testimony by the defense team’s video expert witness, prosecutors focused on two main points in cross-examination. First, the video provided by Fredericks did not indicate that Matlock was an aggressor in the situation. Although Fredericks was able to piece together complete footage of the event from the 11 available security cameras, the footage was too blurry and distant to allow for jurors to get a clear view of how the incident transpired.

Second, and perhaps most importantly, prosecutors had Fredericks concede that the video he compiled did not show any obstacles or blocks to Hutchins’ path that would have prevented the defendant from running instead of opening fire. By having Fredericks confirm that his footage told a second story – that Hutchins could have run away to avoid a violent encounter – prosecutors were able to take advantage of the defense team’s expert witness.

Ultimately, the Hutchins murder trial will likely turn on other, more significant, evidence, but by calling Fredericks as a video expert witness, the defense attorneys were able to set a scene that makes their narrative plausible. Whether or not the rest of their evidence can fill in the gaps that Fredericks’ video leaves open remains to be determined, but using an expert to establish the credibility of the defendant’s story lays a good foundation for the rest of the case.

Spanish Soap Opera Copyright Trial Features Expert Witnesses

A federal judge in Florida will hear competing expert witnesses explain the finer points of Spanish telenovelas in a copyright legal battle between two Spanish-language TV networks.  Telenovelas, a popular Spanish-language day-time drama similar to American soap operas, are at the center of a lawsuit between Latele Television, C.A. and Telemundo Communications Group, and Miami Federal Judge Jonathan Goodman has agreed to hear telenovela expert witnesses from both sides during trial.

Spanish-Language Channels Battle over Telenovela Similarities

Latele Television, copyright holder for Maria Maria filed the lawsuit against Telemundo for copying the show in its El Rostro de Analia.  Maria Maria, which began its run in 1989, and El Rostro de Analia, which first aired in 2008, are both about a case of mistaken identity between two women who look alike.  The plots, which both involve health doses of affairs, amnesia, love triangles, and illicit activity, arguably share similarities beyond the conventional soap opera elements, causing Latele Television to sue in an effort to collect royalties it argues Telemundo obtained by copying the 1989 show.  Pointing out that the lead writer from Maria Maria is the same man responsible for the story in El Rostro de Analia, Latele argues that Telemundo’s recent version goes beyond the standard practice of borrowing story and plot elements from other telenovelas and enters the realm of copyright infringement.

Telenovela Expert Witnesses Set to Take Stand in Copyright Case

The Plaintiffs plan on using Dr. Tomas Lopez-Pumarejo, a Brooklyn College professor who has written a book on television serial dramas, as a telenovela expert witness.  Dr. Lopez-Pumarejo conducted a literary analysis of both Spanish-language dramas and found what he called “substantial and striking similarities” between the two.  During a Daubert hearing deciding which experts would be permitted to testify in the upcoming trial, Dr. Lopez-Pumarejo stated that the similarities between the two shows, “leaves – in my opinion – no doubt that [El Rostro de Analía] is a remake of [María María].”

In an effort to counter Dr. Lopez-Pumarejo, the Defendant has called as an expert witness Dr. Carolina Acosta-Alzuru.  Dr. Acosta-Alzuru, who is a professor at the University of Georgia, has written a book on Venezuelan telenovelas and is prepared to testify that there are substantial differences between the two shows that refute a copyright claim.  Dr. Acosta-Alzuru has said of the dissimilarities between El Rostro de Analia and Maria Maria, “in terms of core plot development, triangle structure, character design, telenovela subgenre, and qualitative characteristics of dialogue far outweigh the limited similarities in the triggering plot.”

In the early stages of the lawsuit, both parties submitted Daubert motions requesting the other’s expert witness be disallowed from participating in trial.

Federal Judge Admits Telenovela Expert Witnesses

Defendant Telemundo argued that Dr. Lopez-Pumarejo had not conducted sufficient investigation of the two shows before coming to his conclusion that they were similar.  The Plaintiff’s expert witness watched 33 episodes of Maria Maria and 53 episodes of El Rostro de Analia to formulate his opinion, which only equates to 23{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the combined aired programming.  Arguing that an expert who has only been exposed to less than a quarter of the material in question cannot possibly offer adequate commentary on the matter, Telemundo asked Judge Goodman to dismiss Dr. Lopez-Pumarejo before trial began.

In its own motion, the Plaintiff requested that Dr. Acosta-Alzuru be disqualified because her qualifications to comment on the issue were insufficient.  Pointing out that Dr. Acosta-Alzuru is not a literary expert or a copyright infringement expert, Latele Television argued that she lacked the authority to come to an expert conclusion despite the fact that Dr. Acosta-Alzuru watched all 376 hours of aired content and wrote synopses of each episode of both shows.

In response to both motions, Judge Goodman found that both experts had passed the basic Daubert requirements of reliability necessary to admit expert testimony.  Telling the parties that their complaints go to the weight of the expert testimony rather than the threshold question of admissibility, Judge Goodman determined that any weaknesses evident in the expert testimony should be exposed during trial for the jury to consider.  As the telenovela copyright trial moves forward in the coming months both sides will not only be required to incorporate expert testimony into their argument, but also prepare to dismantle an opposing expert opinion during cross-examination.