Category Archives: In the News

Donald Trump

Unprecedented Lawsuits Against President-Elect Donald Trump Spark Examination of Executive Privilege

Mark Rozell, an expert on executive privilege, opines on the limits of the executive privilege as it applies to President-Elect Donald Trump.

President-Elect Donald Trump’s Numerous Lawsuits

President-Elect Donald Trump is involved in numerous pending lawsuits, including the breach-of-contract suit against celebrity chef and Food Network star Geoffrey Zakarian and several civil cases involving his now-defunct real estate seminar program, Trump University.

One of the Trump University lawsuits is set to go to trial on November 28. In that suit, Donald Trump will confront charges from students in California, New York, and Florida who will say that they were tricked into paying up to $35,000 for real estate seminars.

U.S. District Court Judge Gonzalo Curiel will preside over this trial, which will take place in San Diego. This past summer, Trump accused Judge Curiel of bias because he is Mexican-American and Trump made numerous derogatory comments about Mexican immigrants.

Judge Curiel denied a request by Trump’s attorneys to exclude as admissible evident in the case comments that Trump and his and his team made during his presidential campaign.

Because this case and others may go on after Trump’s inauguration in January, the executive privilege may become a problem.

[UPDATE:  Donald Trump agreed to pay $25 million to settle three lawsuits, including two class-actions, against Trump University. As is common in settlements of civil disputes, Trump admitted no wrongdoing.]

The Executive Privilege

The executive privilege refers to the privilege that allows the president and other high officials in the executive branch of government keep certain communications private where disclosing those communications would disrupt to functions or decisions of that branch of government.

According to Mark Rozell, an expert on executive privilege and the Dean of the Schar School of Policy and Government at George Mason University, “Trump and his legal team could try to test the limits of his legal privilege, but I think such a claim would be very shaky. … The precedent suggests that people still deserve their day in court. … As long as [the alleged action] occurred before he is inaugurated.”

Past Attempts at Claiming Executive Privilege

The Supreme Court does not allow the president to use his office and this privilege to shield himself from litigation over actions prior to assuming office. This precedent was set over accusations against then-President Bill Clinton in 1997. At the time, the Supreme Court ruled that Paula Jones’ allegations of sexual harassment against Clinton could be heard, rejecting Clinton’s arguments that his responsibilities as president would prevent him from properly defending himself in a private lawsuit.

President Richard Nixon attempted to claim executive privilege in an effort to conceal incriminating White House tapes. The Supreme Court rejected President Nixon’s claim, but affirmed that the Constitution-based principle of executive privilege was legitimate under appropriate circumstances.

In the unanimous decision, Justice John Paul Stevens wrote, “Although scheduling problems may arise, there is no reason to assume that the district courts will be either unable to accommodate the President’s needs or unfaithful to the tradition — especially in matters involving national security of giving ‘the utmost deference to Presidential responsibilities. … We have confidence in the ability of our federal justices to deal with both of these concerns.”

Serial Podcast

Serial’s Adnan Syed Files Motion for Bail Pending Appeal

Adnan Syed was granted a new trial on the ground that he received ineffective counsel in 2000 from a defense attorney who failed to cross-examine a state cellphone expert witness on key evidence. His counsel has now filed a motion for bail pending his appeal.

Syed’s Conviction

In 2000, Adnan Syed was convicted of the kidnapping and murder of his high school girlfriend, Hae Min Lee. Lee was a student at Woodlawn High School in Baltimore County. Lee went missing in January 1999. Lee’s body was found nearly a month later. The cause of death was strangulation.

Syed was sentenced to life in prison.

Serial Podcast

In 2004, a podcast called “Serial” went on the air. The premise of the award-winning podcast is that it “tells one story — a true story — over the course of a season. Each season, we follow a plot and characters wherever they take us. We won’t know what happens at the end until we get there, not long before you get there with us.“

Rabia Chaudry, a friend of Syed’s, introduced the host of “Serial,” Sarah Koenig, to Syed’s story. The first season examined the details of Syed’s story in detail. To tell Syed’s story, “Sarah Koenig sorted through thousands of documents, listened to trial testimony and police interrogations, and talked to everyone she could find who remembered what happened between Adnan Syed and Hae Min Lee. She discovered that the trial covered up a far more complicated story than the jury — or the public — ever got to hear. The high school scene, the shifting statements to police, the prejudices, the sketchy alibis, the scant forensic evidence — all of it leads back to the most basic questions: How can you know a person’s character? How can you tell what they’re capable of?”

The explosive popularity of “Serial” caused a renewed interest in Syed’s case.

New Trial Granted

The popularity of “Serial” caused an alibi witness, who was previously ignored by Syed’s trial counsel to come forward. Additional investigation uncovered new evidence that undermined the reliability of the cell phone records that were the center of the State’s case against Syed.

Judge Martin P. Welch ordered a new trial, ruling that Syed deserved a new trial because his lawyer’s failure to adequately cross-examine the State’s cellphone expert witness was a mistake so egregious that it violated Syed’s right to effective assistance of counsel.

Motion for Release Pending Appeal

On October 24, 2016, Syed’s legal team filed a Motion for Release Pending Appeal. In this motion, Syed requested that the court order his release during the pendency of the State’s appeal of the Order vacating his conviction and granting a new trial.

The motion argues that, “Syed has now served more than 17 years in prison based on an unconstitutional conviction for a crime he did not commit. He has no history of violence other than the state’s allegation in this case, and if released he would pose no danger to the community. He is also not a flight risk; it makes no sense that he would run from the case he has spent more than half his life trying to disprove.”

Photo Credit: Serial Podcast by Casey Fiesler from Atlanta. (CC By 2.0)

Don't drink and drive concept. Close up of man hand drinking beer and holding car keys. Responsibly and safety driving

Questions Surrounding a Houston Toxicology Expert Witness Raise Doubt on DWI Convictions

Several Houston area DWI convictions have come under review after a toxicology expert witness had her credentials questioned following a recent trial. The expert has defended herself and her work, however, defense attorneys have asked the Houston DA to conduct a thorough review of past convictions and to remove her from testifying as an expert witness during future DWI trials.

Houston Toxicology Expert Witness Has Credentials Questioned

An expert witness in toxicology who has taken the stand in hundreds of Houston DWI cases since 2006 has had her credibility and qualifications come under fire after defense attorneys noticed her degree does not reflect the specialty upon which her testimony focuses. Dr. Fessessework Guale works as an expert in toxicology with the Harris County Institute of Forensic Sciences in Houston, and has built up a reputation as a noted witness over years of testimony in DWI and other felony trials. Dr. Guale entered the field by claiming she had a Master’s of Science degree in Toxicology from Oklahoma State University, but some digging by a local defense attorney uncovered inconsistencies in her record.

According to Tyler Flood, who is president of the Harris County Criminal Lawyers Association, Guale has misrepresented her qualifications and put her expert testimony in serious doubt. Research by Flood revealed that Guale’s degree is actually in physiological sciences, which could include toxicology research, however, Guale’s studies in toxicology focused largely on animals rather than humans. Flood found these revelations to be significant, telling reporters, “She has flat out stated and testified under oath, I have a Master’s Degree in Toxicology, and that is not the truth … She has lied to the crime lab that she works at, she’s lied to prosecutors, and she’s lied to judges.”

In addition to potentially seeking criminal charges against Guale for the deception, Flood and other criminal defense attorneys have asked for her resignation, for a thorough review of all the DWI cases in which she has testified as a toxicology expert witness, and for the DA to stop using her as an expert witness in trials.

Toxicology Expert Defends Herself Against Allegations of Deception

Speaking to reporters at her home in Houston, Dr. Fessessework Guale defended herself against the allegations that she had lied to prosecutors and judges about her qualifications as a toxicology expert witness. According to Dr. Guale, the matter is simply a “misunderstanding,” and she has the necessary qualifications to take the stand as an expert in toxicology. Guale told reporters, “My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it … It’s called a sub discipline.” She did not address concerns that her toxicology focus was on animals while she studied at Oklahoma State.

Her employers at the Harris County Institute of Forensic Sciences (HCIFS) released a statement which supported Dr. Guale’s qualifications to testify as a toxicology expert witness, but noted it would review her education and training in light of the allegations against her. In its statement, the HCIFS noted that Guale had participated in toxicology training and received certification by the American Board of Forensic Toxicology “reflecting her knowledge, training, and experience in forensic toxicology.” Pending completion of the review of her prior testimony and educational qualifications, Guale has been reassigned and may require re-training before she can continue to testify in court.

Houston DA to Review Impact of Toxicology Expert Mix-up

Attorney Tyler Flood and several other Houston area defense attorneys have called for a complete review of all the cases in which Dr. Guale testified as a toxicology expert witness. The Harris County DA released a statement which said its office is in the process of assessing which cases Dr. Guale’s testimony may have impacted the verdict and will proceed with a formal review accordingly. Attorneys representing clients who were convicted after trials which featured Guale have been asked to contact the DA, but whether or not the issue will result in convictions being overturned remains to be seen.

Attorneys for Jaime Flores, who was convicted of being intoxicated and causing a fatal car accident in part due to Guale’s toxicology expert testimony, have announced that they will file a motion for a new trial based on the revelation about her qualifications and education. Given that Guale has undergone training in toxicology analysis, the miscommunication about the precise nature of her degree may have minimal effect on most of the prior cases she worked on. However, her reputation has come under serious fire and she could be dismissed from future testimony as a toxicology expert in DWI trials.

Experts Testify in “Bizarre” Art Authentication Trial

Experts Testify in “Bizarre” Art Authentication Trial

Expert witnesses played a key role in an art authentication trial that one art world publication branded as ridiculous and bizarre. The controversy involved a desert landscape that was allegedly painted by Peter Doig. The artist, known for his figurative paintings and his “revolutionary” approach to landscapes, denied that he painted the desert landscape.

Robert Fletcher’s Claim

Robert Fletcher was working as a corrections officer at Thunder Bay Correctional Centre in Ontario during the mid-1970s. He claims that he watched Doig paint the landscape and purchased it from Doig for $100 in 1975, while Doig was serving a sentence for possession of LSD.

The Scottish-born artist lived in Toronto during his teen years, when he worked as a laborer for a gas and oil drilling company. He moved to London in 1979 to attend art school. Doig has been living in Trinidad since 2002.

Doig admits that he occasionally used LSD in his youth but he denies having been imprisoned in Thunder Bay. He also denies painting the desert landscape. Doig’s art dealer contends that Doig did not start painting on canvas until 1979.

Doig’s defense team argued that the disputed landscape was painted by Peter E. Doige, now deceased, an amateur painter who (according to his half-sister) served time in Thunder Bay. That claim is given credence by the fact that the painting is signed “Pete Doige.” Why Doig would add an “e” at the end of his name, and why he would deny painting the landscape if he actually did so, are questions for which Fletcher had no satisfactory answer.

Fletcher’s Lawsuit

The painting is worth millions of dollars if it was painted by Doig rather than Doige. Since the painting’s value depends on its authenticity, Fletcher sued Doig for interfering with its sale by disclaiming creation of the painting. He also asked for a judicial declaration that the painting is authentic.

Fletcher was joined in the suit by Chicago art dealer Peter Bartlow, who is trying to sell the painting on Fletcher’s behalf. He says that Doig “wrecked their plans” to sell the painting for millions of dollars.

Bartlow called Doig a “sociopath” and said that Doig “can’t draw.” That may seem like an odd statement from someone who is trying to sell a painting for millions of dollars that he attributes to Doig, but Bartlow insists that Doig traces his works from projections. Doig denies that allegation.

Expert Testimony

Bartlow testified as an expert in art authentication. He had a financial interest in the outcome of the trial — he will earn a 25% commission if he sells the painting — but the court decided before the trial that Bartlow was qualified to testify as an authentication expert. The judge noted that all experts get paid and that Bartlow’s potential commission went to his credibility, not to the admissibility of his testimony.

Bartlow testified that he identified “small elements in the disputed painting that can be found in Doig’s verified work, such as the line of a skier’s right arm in a 1994 oil on canvas, Chopper,” which Bartlow claims is “nearly identical to the ridge of a rock formation in the disputed painting.” During cross-examination, Doig’s attorney ridiculed “the Bartlow method” of authentication.

Art historian Richard Schiff, testifying as an expert for the defense, characterized Bartlow’s methods as “entirely unreliable” and suggested (quite sensibly) that expert witnesses should not have a financial stake in verdicts when they testify. After examining other paintings by Doige, Schiff expressed the “firm opinion” that Doige, not Doig, painted the desert landscape, based on the “uniformity of the surface, consistent planar recession, and consistent illumination.”

Art historian Victor Wiener appraised the disputed painting. He testified that it is worth $50,000 to $100,000 if it was painted by Doige and $6 million to $8 million if it was painted by Doig.

The Verdict

The case was heard by a federal judge sitting without a jury. Judge Gary Feinerman decided that Doig “absolutely did not paint the disputed work.” The judge’s remarks seem to suggest that he found Doig’s testimony to be credible and concluded that all of the evidence made an overwhelming case that Doig did not paint the landscape.

Fletcher said he accepted the verdict and still had “personal affection for the painting no matter who made it.” The painting’s notoriety as a result of the trial almost certainly assures that Fletcher will make a tidy profit if he sells it, although he won’t reap the millions for which he and Bartlow had hoped.

High Profile Forensic Expert Witness Rejected due to Questionable Qualifications

A DNA expert witness who has testified on behalf of defendants in several high profile trials was dismissed from a Colorado courtroom for being unqualified.  The expert’s dismissal could result in attorneys being less likely to use him, however, he argues the judge’s decision to denounce his qualifications was made in error and his expert testimony is scientifically validated.

High Profile Expert Witness Dismissed from Colorado Trial

Richard Eikelenboom is a forensic scientist who has testified as a DNA expert witness in several high profile trials across the country, most notably on behalf of Casey Anthony who was acquitted by a Florida jury in 2011 on all charges stemming from her 3-year-old daughter’s death.  Eikelenboom took the stand in the Casey Anthony trial as a DNA expert, and told jurors that there was not sufficient forensic evidence to connect Anthony to her daughter’s death.  His DNA expert testimony contributed in part to her acquittal, and Eikelenboom has been called as a forensic expert for several years in trials across the country.

Last week, Eikelenboom’s reputation and position as a DNA expert witness suffered a significant blow when a Denver judge discredited his qualifications to testify about forensic evidence in court.  During testimony in a 2013 sexual assault case, the judge presiding over the trial found that Eikelenboom had committed serious errors in his DNA analysis by failing to follow proper scientific standards set by other professionals in the field.  According to prosecutors in the case, Eikelenboom admitted on the stand that he did not have experience directly extracting or analyzing DNA, that his lab is not properly accredited, and that he himself failed proficiency tests in 2011 and 2012.

After hearing about flaws in Eikelenboom’s analysis and proficiency level, the Denver judge rejected his testimony by finding he was unqualified to take the stand.  Since being dismissed as an unqualified expert, Eikelenboom has attempted to dispute the judge’s conclusion and offer assurances that his forensic expert testimony is built on sound principles and methods.

Debunked Expert Witness Defends Qualifications

Speaking to the media after being dismissed from testifying as a forensic expert witness, Richard Eikelenboom attempted to address the accusations that he does not produce reliable DNA analysis.  Calling the claims that his methodology is fundamentally flawed “completely unfounded,” Eikelenboom told reporters that the prosecutors manipulated his responses in order to paint an inaccurate portrayal. According to Eikelenboom, the trial judge did not completely understand his work or his qualifications, and therefore made the decision to reject his testimony without all of the relevant facts.

Eikelenboom also pointed out that his lab has received accreditation from two separate professional organizations, including the American Society of Crime Lab Directors (ASCLD).  Additionally, some of the disputed DNA testing which prosecutors used as proof that he was not qualified was conducted decades ago, and Eikelenboom maintains that he has received the proper training and education to act as a forensic science expert witness.  He also told the press that his professional name and reputation has been slandered, and announced intentions to contact a lawyer.

Forensic Expert’s Dismissal Could Limit Future Opportunities

Prior to last week’s challenge to his professional reputation, Eikelenboom testified in several criminal trials, several of which resulted in defendants being acquitted of fairly serious charges.  In addition to Casey Anthony, the forensic expert was called by former Indiana State Trooper David Camm who was acquitted of killing his wife and children, and helped overturn a murder conviction of Tim Masters, a Colorado man who spent more than 20 years in prison before DNA analysis conducted by Eikelenboom’s lab was used to exonerate him.   While none of the past work can be impacted by last week’s decision, Eikelenboom’s future as an expert witness may be in jeopardy.

Forensic science expert witnesses are widely used in criminal trials across the country, and competition for the opportunity to testify as an expert can be significant.  Experts rely on their professional reputation in order to market their skill set, and Eikelenboom’s recent dismissal will likely impact his opportunities going forward.  Attorneys will be hesitant to hire an expert whose qualifications have been questioned, even if the expert has testified successfully in high profile cases.

Lab Analysts May Be Required to Testify in Person in Criminal Trials

Attorneys Argue About Allowing Blood Evidence and Expert Testimony

The attorneys for Kelli C. Smith, who has been accused of being drunk when she caused a fatal car crash in 2012, are attempting to bar the state from presenting blood evidence that she was intoxicated. The defense also contends that the state is attempting to call an expert witness that the defense consulted before the first trial.

The Incident

At 3:30 a.m. on February 25, 2012, Kelli Smith was driving a Nissan SUV eastbound in the westbound lanes of Interstate 70, when she hit a car head-on. The collision killed 35-year-old Thomas D. Sullivan, Jr., the driver of the other car. Sullivan’s car caught fire after the crash, burning his body beyond recognition. Smith had to be extricated from her car and was airlifted to University Hospital in Columbia, Missouri with serious injuries.

First Trial

In May 2012, Smith was charged with first-degree involuntary manslaughter. The state argued the Smith knowingly got behind the wheel while intoxicated. She had been visiting bars in downtown Columbia that night and drove a couple people home before leaving the city. Smith’s defense counsel presented evidence that Smith was not drunk, but instead was under the influence of a date-rape drug that was used to sexually assault her. Smith’s attorneys brought in expert witnesses who criticized the Missouri State Highway Patrol’s investigation of the accident, the extraction and handling of her blood sample, and their failure to investigate the sexual assault.

During her four-day trial, Smith’s friends and family testified on her behalf while Sullivan’s family gave victim impact statements.

Smith’s father, Jim Smith, stated, “I know Kelli feels just horrible about the loss of Thomas Sullivan…She stated many times since the accident that she wished it was her, not him.”

Thomas D. Sullivan, Sr. said that the loss of his son is constant. He showed the jury photos of his grandsons, who were 4 and 7 at the time of his son’s death. He said, “They’ll never get to know their dad…He was a great father and a loving provider. Patient beyond the patience I had.”

The jury convicted Smith of first-degree involuntary manslaughter and recommended a five-year prison term.

New Trial

Smith appealed her conviction, arguing that the district court judge improperly instructed the jury about blood alcohol evidence, that the court should not have admitted her blood test as evidence, that it improperly limited her references to a date rape drug defense, and that the replacement of a juror during deliberations was inappropriate. The Missouri Court of Appeals granted Smith a new trial on the basis that the jury may have been prejudiced by the instruction on blood alcohol evidence.

In her second trial, Smith’s attorneys are again arguing that the state should not be allowed to present blood evidence that Smith was intoxicated. They assert that the evidence is unreliable because it had been taken more than 8 hours after the accident and had not been refrigerated for more than a week.

The state made a motion to bar witness opinions about whether Smith was raped before the crash. The district court judge ruled against the motion. The court will have another hearing to rule on whether defense can keep the blood evidence out and whether the state can use as an expert witness a doctor that a defense attorney consulted before the first trial.

Fingerprint Experts Question Fingerprint Science

Fingerprint Experts Question Fingerprint Science

Experts are often called upon to testify that a criminal defendant’s fingerprints match a fingerprint found at the crime scene. Combined with other evidence of a defendant’s guilt, a fingerprint can be convincing proof of criminal responsibility. But when a case hinges entirely upon the unexplained presence of a defendant’s fingerprint, guilt may depend on the presumption that no other person could have left that print.

The uniqueness of fingerprints is increasingly being called into question. Scholars disagree as to whether forensic fingerprint identification has been scientifically validated. As a practical matter, the only way to be certain that fingerprints are unique would be to compare the fingerprints of every person who has ever lived. That obviously can’t be done.

Even if fingerprints really are unique, the fallible nature of fingerprint identification is illustrated by the wrongful conviction of Stephen Cowens. After Cowens spent more than six years in prison, Boston police and prosecutors admitted they were mistaken when they said that fingerprints found at a murder scene “unquestionably” belonged to Cowens. Several other wrongful convictions have hinged on the testimony of fingerprint experts who made incorrect identifications.

The highly publicized arrest of Brandon Mayfield for terrorism was based on the FBI’s mistaken identification of a fingerprint. According to the FBI, it used “standard protocols and methodologies,” including verification by outside experts, to link the suspect’s print to Mayfield. The FBI eventually conceded its error, explaining that it relied on a digital image of the suspect’s print that was of “substandard quality” and that there were a “remarkable number of points of similarity” between Mayfield’s prints and the suspect print.

Questionable Identification Techniques

Forensic experts might be mistaken when making a fingerprint identification for a number of reasons. Fingerprints within families tend to be very similar. As people age, skin elasticity changes, which alters fingerprint impressions. Some skin conditions also affect fingerprints. Even two prints left by the same finger are never identical. Skin stretches. The angle at which the finger touches a surface, and the pressure exerted, will affect the fingerprint impression.

Prints recovered from a crime scene may be smudged or distorted. Sometimes only a partial print can be recovered, making identification problematic. Too often, the fingerprint analyst knows that the police suspect the guilt of a particular person, and that knowledge may instill an unconscious bias that blind testing (a key component of the scientific method) would remove.

Fingerprint examiners compare “points of similarity” between a fingerprint recovered from a crime scene (a “latent print”) and a suspect’s fingerprint. When the fingerprints are clearly dissimilar, the suspect should be excluded as the source of the print. When there are enough “points of similarity,” they typically testify that the suspect is the source of the latent print. In some cases, experts testify that the suspect is the only person in the universe who could have left the latent fingerprint.

Professor Simon Cole persuasively argues that the boundary between sufficient and insufficient “points of similarity” to make a definitive match has never been scientifically established. In an influential article, Cole examines 22 cases in which reputable fingerprint experts reached a “consensus judgment” that a latent print identification, relied upon as proof of guilt in a criminal case, was incorrect. In some of those cases, the defense used its own fingerprint expert to challenge the conclusion drawn by the prosecution’s expert. Some of the defendants were acquitted or their cases were dismissed, while others were wrongly convicted. In several cases, the prosecution’s expert testified that 12 to 14 points of similarity proved that the latent fingerprint belonged to the defendant.

Cole suggests that the 22 cases are “the tip of the iceberg.” He also suggests that the prevailing Daubert standard of expert evidence admissibility fails to act as a shield against unreliable fingerprint analysis because courts are insufficiently skeptical of claims that fingerprint identification is infallible.

How Should Fingerprint Experts Testify?

For many years, fingerprint experts testified that fingerprint identification is infallible. That view was supported by the FBI’s publication, The Science of Fingerprints: Classification and Uses. While fingerprint identification may be reliable in most cases, it is now clear that it is not infallible.

Simon Cole points out that experts have repeatedly testified that the “error rate” in fingerprint identification is zero. As the cases of Mayfield and Cowen (among others) demonstrate, that testimony is untrue. Cole also points out that fingerprint analysts have been encouraged to testify that the methodological error rate is zero while the practitioner error rate is unknowable but negligible. In other words, if identification methods are followed precisely, the error rate is zero, but there is no way to know how often analysts fail to follow the methodology.

Since the methodology does not exist in a vacuum but is always applied by a practitioner, Cole argues that any attempt to draw a distinction between the two error rates is specious. He suggests that ethical fingerprint analysts should never testify about a methodological error rate of zero, because that testimony is both meaningless and misleading.

In any event, many experts now agree that the “zero error rate” claim is not scientifically supportable. Since there is no way to be certain that every person has a unique set of fingerprints, even a perfect match, determined by state-of-the-art techniques, cannot be said with certainty to be error-free. In any event, the “zero error rate” claim is misleading because it invites the jury to believe in the mythical perfection of fingerprint science while deflecting attention from all the real-world factors that result in misidentifications.

Mike Silverman, the fingerprint expert who introduced an automated fingerprint detection system to London’s Metropolitan Police, thinks experts have a duty to make juries aware of the problems with fingerprint analysis. Silverman worries that jurors are influenced by shows like CSI. According to Silverman, the certainty that television viewers see on CSI “simply doesn’t exist” in the real world.

If a fingerprint expert determines that a latent print matches a suspect, it may be unlikely that the fingerprint belongs to anyone else. Silverman is careful to note that winning the lottery is also unlikely, but it happens. To assure that a defendant receives a fair trial, the fallibility of fingerprint identification is something that fingerprint experts should be willing to acknowledge.

Admitting the possibility of error (even if the possibility seems remote) does not detract from an expert’s credibility. Rather, it enhances credibility. Nobody’s perfect. Juries understand that, and juries are more likely to trust experts who acknowledge their own potential fallibility. A recognition that experts are advocates for the truth, not for a particular party, always makes an expert a better witness.

New Hampshire Court Dismisses Lead Paint Expert Testimony in Somali Refugee Lawsuit

The New Hampshire Supreme Court has dismissed testimony from a lead paint expert witness in a lawsuit against landlords accused of providing unsafe housing.  The suit, which has been ongoing for nearly 10 years, may be nearing a conclusion as the plaintiffs are left without a key piece of testimony after the court’s decision.

Somali Refugees file Lead Paint Lawsuit

From 2005 through 2006 a group of Somali Bantu refugees lived in apartments owned by Wen Lin, a landlord in Manchester, New Hampshire.  After several members of the community got sick, 20 of the refugees filed a lawsuit alleging that the apartments were contaminated by lead paint, which is a known hazard.  The plaintiffs claimed that the defendants had provided an unsafe living environment which caused injury to the community members who lived there.

As with any injury lawsuit, the plaintiffs were required to prove that they suffered a legally actionable harm as a result of the defendant’s behavior or negligence, and in this case that meant the Somali refugees had to show they suffered an illness or injury as a result of exposure to lead paint.  In order to satisfy their burden of proof, the plaintiffs hired a lead paint expert to evaluate their injuries and testify in court that the defendant’s apartment was the likely cause of harm suffered.

Lead Paint Expert Witness Submits Report to Trial Court

The Somali Bantu refugees attempted to demonstrate that their injuries were caused by their living conditions by having lead paint expert witness Dr. Peter Isquith, a trained clinical neuropsychologist, to conduct tests on 17 children of the plaintiffs.  Dr. Isquith used two scientific measures in order to determine that the children suffered from a neurological condition which was “more likely than not” caused by lead paint in their living quarters.

In order to make this determination, Dr. Isquith used two common neurological tests which are designed to measure verbal and non-verbal intelligence and general intelligence.  The tests are separated into a series of questionnaires which examine cognitive function, attention, language, memory, and learning, and social perception.  According to Isquith the plaintiff’s children standardized scores fell in a lower percentile when compared to standardized scores of other children who were not exposed to the same levels of lead paint.

Dr. Isquith used his results to argue that the alleged harm suffered by the plaintiffs not only was real, but was caused by the apartments provided by the defendant.  During trial, the defendants motioned to exclude Isquith’s testimony, and after a lengthy evidentiary hearing the trial judge excluded the plaintiff’s expert for failing to account for specific conditions of the plaintiffs.

New Hampshire Supreme Court Strikes Lead Paint Expert Witness

On appeal, the New Hampshire Supreme Court closely reviewed the methodology Isquith employed and agreed with the trial court that he had not met the scientific standards required of expert witnesses in the state.  The Court affirmed the trial court’s position by writing that the tests Isquith had used failed to consider the differences between Somali children and his comparison group, or consider how “normal, healthy” Somali children would perform.

Without a baseline for comparison, the Court determined that the plaintiff’s expert witness had not provided sufficient scientific justification for his conclusions regarding the lead paint injuries.  Further, Isquith’s work had not been reviewed by peers, and was fraught with uncertainty which made it akin to “guesswork [which] would not assist the jury in arriving at a fair and just verdict.”  Accordingly, the Court found that Isquith had not met the threshold for expert witness reliability in New Hampshire.

The case serves as a reminder that well qualified and educated expert witnesses can provide seemingly meaningful analysis which cannot pass legal standards.  Courts, particularly courts which operate under standards adopted in Daubert ant its state-level progeny, are required to look beyond expert qualifications and closely examine whether or not expert analysis reliably connects the facts of the case to scientific conclusions.

Mother buckling child in car seat

“Forgotten Baby Syndrome” Expert Offers Testimony In Trial for Negligent Homicide

Judge Wade Naramore is on trial for the negligent homicide of his son, Thomas, who was found dead after his father left him in a hot car in July 2015. Naramore is a circuit judge in Garland County, Arkansas.

At the time of his arrest, Naramore told investigators that he forgot to drop off his son at daycare and left him in the backseat for about five hours. He said that he didn’t realize his son was still in the back seat until he heard a noise in the rear of his car when he was driving to pick his son up from daycare later that day.

Following a six-month investigation by special Prosecutor Scott Ellington, Naramore was arrested and charged with negligent homicide, a Class A misdemeanor. He turned himself in and pleaded not guilty. Naramore faces up to one year in jail and a fine of $2,500 if convicted. The Arkansas Supreme Court has temporarily suspended Naramore, pending the outcome of his case.

Naramore’s Defense

Naramore’s defense team called David Diamond, Ph.D, to testify as an expert on memory loss. Dr. Diamond is a neuroscientist and professor at the University of South Florida. He is also the Director of the USF Center for Preclinical and Clinical Research on Post-Traumatic Stress Disorder. Dr. Diamond has studied the “Forgotten Baby Syndrome” and has testified in numerous cases as a scientific consultant on cases involving memory-related child death.

Dr. Diamond’s fee is $10,000 to investigate cases such as Naramore’s. Dr. Diamond says that he will only testify in cases that he determines to be accidents.

Dr. Diamond opined that there were several factors that may have affected Naramore on the day that he left Thomas in the hot car. Diamond noted that the numerous changes in Naramore’s routine, possible sleep deprivation, and stress or distractions all could have played a role in the incident.

On most mornings, Naramore ate breakfast at home, but that day he stopped for breakfast at McDonald’s. Dr. Diamond theorized that stopping for breakfast triggered a “restart” of Naramore’s habitual behavior of driving to work after stopping at daycare. His brain treated the stop at McDonald’s as if it were a stop at daycare. Naramore then stopped thinking of having a baby in the backseat, just as he would have done if he had dropped the baby at daycare.

The state attempted to undermine Dr. Diamond’s testimony by questioning the statements that Naramore made to him to help develop Diamond’s forgotten child theory.

In 2014, Dr. Diamond previously testified that 200 children have died worldwide over the past 15 years after being left in cars. A website called Kids and Cars has been created to raise awareness of this issue. According to the site, over 2,200 children are injured or killed in nontraffic events every week. Kids and Cars has also compiled data on convictions in cases of children dying from heat stroke in cars. It found that 28 percent of accidental cases result in convictions and 60 percent when someone knowingly left a child in a car.

Naramore’s Support

Naramore’s family has supported him throughout the ordeal. His mother-in-law, Jan Wright, testified that she learned of Thomas’ death when she received a phone call from a distraught Naramore that consisted of him screaming and wailing and asking her to call 911. Wright testified that Naramore was inconsolable over the next few days, requiring medication to sleep. She testified that she did not place blame on Naramore, saying, “Those things can happen to anybody.”

Jury Acquits Naramore

The jury found Naramore not guilty. Expert testimony likely helped the jury understand that the tragedy of Thomas’ death could have happened to any parent. In addition, the jury may have been influenced by the emotional testimony of Naramore and his family members.

The jury deliberated for three hours. Jurors had difficulty reaching a unanimous verdict. At one point, the vote was 10-2 (presumably in favor of acquittal). The jury later told the judge that the vote was 11-1. The judge told the jury to continue its deliberations, which resulted in the unanimous verdict of not guilty.

Caster Semenya

Experts Battle Over Testosterone Levels For Women In Sports

South African runner Caster Semenya won a gold medal at the Rio Olympics this year, but there are many that feel that the 25-year-old should not have been allowed to compete, arguing that she had an unfair advantage because her body produces more testosterone than the average woman.

The History of the Controversy

The International Association of Athletics Federations (IAAF) is the world’s governing body for track and field. The IAAF has historically imposed various types of sex testing to make sure that female athletes aren’t men trying to pass as women or intersex women with masculine traits that might give them an unfair advantage. Between 2011 and 2015, the IAAF had a rule that women must have less than 10 nanomoles of testosterone per liter of blood to compete in women’s events. Healthy men can produce more than 35 nmol/L, while women usually produce less than 3 nmol/L.

Dutee Chand, an Indian athlete, filed an appeal with the Court of Arbitration for Sport against the Athletics Federation of India (AFI) and the IAAF. Chand challenged the validity of the IAAF regulations governing eligibility of females with hyperandrogenism to compete in women’s competition. The hyperandrogenism regulations restricted women with high levels of naturally occurring testosterone from competing in competitive sports. Under those restrictions, Chand was not eligible to compete in in competitive sports.

Chand argued that the hyperandrogenism regulations were discriminatory, based off of flawed assumptions about the relationship between testosterone and female athletic performance, disproportionate to any legitimate objective, and an unauthorized form of doping control.

The Court for Arbitration for Sport suspended the hyperandrogenism regulations for a period of two years and ordered the IAAF to submit further evidence and expert reports regarding “the actual degree of athletic performance advantage sustained by the hyperandrogenic female athletes as compared to non-hyperandrogenic female athletes by reason of their high levels of testosterone.” If the IAAF does not submit such evidence within the next 2 years, the hyperandrogenism regulations will be void.

Expert Opinions

Experts have testified both for and against the IAAF’s hyperandrogenism regulations.

IAAF Expert, Martin Ritzén, a Sweden-based professor who specializes in pediatric endocrinology, testified that, “the probability of a healthy woman reaching 10 nmol/L of testosterone was “zero.” Angelica Lindén Hirschberg, professor of gynecology, testified that she had never seen such a high level of testosterone in someone with healthy ovaries and normal adrenal glands. Ross Tucker, a professor of exercise physiology in South Africa, pointed out that while the IAAF’s rule was in effect, Semenya was required to suppress her testosterone levels and her performance dropped.

However, Richard Holt, a UK-based endocrinologist, pointed to a study showing variation in the testosterone levels of female athletes. The study showed that 32 of 234 female athletes had natural testosterone levels above 2.7 nmol/L, including 11 female athletes who had more than 8 nmol/L. Dr. Katrina Karkazis, a bioethicist at Stanford University, testified that there is not necessarily a big gap between normal male and female ranges of testosterone. She states, “[n]obody is saying that testosterone is not relevant to performance. It is…you can’t say women with higher testosterone levels will necessarily or always do better than women with lower levels. People are overdetermining testosterone’s effects in ways that don’t fit with what we know scientifically.”

Photo Caption: La sud africaine: Caster Semenya, Citizen59, licensed under Creative Commons CC BY-SA 2.0