Category Archives: In the News

Articles about legal issues currently in the news.

Expert Witnesses Key in Detroit Teen Murder Verdict

Earlier this month, jurors in Detroit found homeowner Theodore Wafer guilty of second-degree murder, manslaughter, and a felony firearm charge for fatally shooting 19-year-old Renisha McBride when she banged on his door after crashing her car. Throughout Wafer’s trial, a variety of expert witnesses testified by explaining the issues that were critical in helping jurors understand how the fatal incident transpired.

Homeowner in Detroit Porch Shooting Guilty of Murder

Last November, 19-year-old Renisha McBride approached the home owned by Theodore Wafer at around 4:30 AM and began banging on his door. Wafer, who lives alone, responded to the loud pounding on his door by getting his shotgun, approaching the doorway, and eventually firing a shot that killed McBride. During testimony, a visibly shaken Wafer claimed that he had grabbed the gun out of fear for his safety, and he did not know it was loaded before it discharged. Wafer also testified that the shotgun discharged accidentally, reinforcing his argument that he did not mean to kill McBride.

Prosecutors argued that Wafer’s actions were unreasonable and unnecessary considering the level of threat that McBride presented, and Wafer’s defense team countered that his actions were driven by fear of being attacked and that he did not intentionally discharge the gun. After nearly two days of deliberations, jurors agreed with the prosecution and convicted Wafer of second-degree murder, manslaughter, and felony firearm usage. Both parties relied heavily on expert witnesses familiar with gun safety, forensic pathology, and police investigations during the trial.

Expert Witnesses Key to McBride Murder Verdict

During Wafer’s trial for the murder of Renisha McBride, both parties leaned heavily on expert witnesses to support, or refute, Wafer’s recollection of the events and to interpret the evidence gathered by police at the scene. Prosecutors, attempting to demonstrate that Wafer fired intentionally in an unreasonable response to the perceived threat, called the following:

  • Shawn Kolonich, a forensic firearms expert witness, testified that the 12-gauge shotgun used by Wafer was in good condition and did not have any defect that would have caused it to fire accidentally. Part of Wafer’s testimony was his claim that he had not intentionally fired the gun, but Kolonich’s expert opinion indicated that it is unlikely that the gun misfired. Kolonich further testified that the gun’s safety mechanism had been released, which enabled Wafer to fire it.
  • Detective Stephen Gurka, lead investigator in charge of the case, offered expert testimony on the evidence gathered at the scene of McBride’s death. Det. Gurka testified that the police found no evidence of attempted entry into Wafer’s home, and nothing to suggest that a second individual was attempting to enter through the home’s side door – a claim Wafer made to reinforce his perception of the threat. Gurka’s work was criticized by defense attorneys who argued the police investigation was botched, resulting in tainted evidence.
  • Dr. Kilak Kesha, MD was the final prosecution expert witness. Dr. Kesha performed the autopsy on Renisha McBride and testified that he did not observe swelling or injuries on her hands – supporting the prosecution’s claim that she was not the aggressor.

In response, the defense presented two expert witnesses to support Wafer’s claim:

  • Dr. Werner Spitz, MD is a widely recognized expert on forensic pathology, and he directly contradicted Dr. Kesha’s assessment that McBride did not have wounds on her hands. Dr. Spitz testified that there was evidence of bruising on McBride’s hands that would suggest she banged violently on Wafer’s door. Dr. Spitz also testified that McBride was severely intoxicated at the time, an assessment Dr. Kesha agreed with. Prosecutors challenged Dr. Spitz, getting him to admit he had based part of his testimony on Wafer’s own statements rather than the condition of McBride’s body.
  • David Balash is a firearms expert witness who was called to testify about the condition of Wafer’s screen door at the time he fired the shot that killed McBride. Mr. Balash testified that the angle of the gun at the time it fired suggested that the screen door was dislodged from the force of McBride’s banging. Balash also testified that Renisha was very close to the door – less than a foot – at the time she was shot.

Wafer’s guilty verdict is not necessarily an indication that his expert witnesses were unconvincing. Despite evidence that McBride aggressively banged on his doorway, jurors determined that Wafer’s response was unnecessary and sufficiently out of line to justify a murder conviction. Expert testimony in support of the prosecution demonstrated flaws in Wafer’s story, and contributed to a guilty verdict.

 

McDonnell Corruption Trial to Rely on Expert Witness Testimony

The high profile corruption trial of former Virginia governor Bob McDonnell and his wife Maureen is underway, and will feature critical testimony from expert witnesses. Both sides will present expert testimony on a range of topics including computer data, finances and accounting, and Virginia’s laws of gift disclosure required by public servants. Although the jurors will primarily be exposed to first-hand testimony regarding the McDonnell’s behavior, experts will be called to offer factual analysis that supplements, supports, or refutes the key eyewitness accounts.

Former Virginia First Family Charged with Corruption

The McDonnells are charged with receiving over $165,000 in gifts in exchange for using Bob’s political influence to assist Star Scientific in promoting the company’s dietary supplements. Former Star CEO, Jonnie Williams, developed a relationship with Maureen McDonnell, and, according to the prosecution, used his connection to the governor’s wife to pitch widespread distribution and use of Star’s anti-inflammatory product, Anatabloc. In exchange for lavish gifts, shares in Star Scientific, and surreptitious cash payments, Mr. Williams was able to use the governor’s mansion to launch Anatabloc in 2011 and take advantage of the McDonnell’s influence to promote the drug to doctors and pharmacies across Virginia.

Critical to the prosecution’s case against the former governor and his wife are email histories and financial records, some of which have been hidden in concealed electronic files. Throughout the month-long trial, prosecutors are expected to integrate computer and financial expert witnesses into the case to help identify misappropriated funds and illegal gifts given from Williams to the McDonnells.

Computer Expert Witness Testifies Against McDonnell

During the second week of the McDonnell corruption trial, FBI computer expert witness Timothy Huff was called to the stand to explain how metadata – which he called “data about data” – can be used to identify the source of emails and electronic calendar events. Huff was asked to identify whose email account set up certain calendar events that prosecutors argue represent meetings between Maureen McDonnell and Mr. Williams during which she received improper payments. Mr. Huff’s computer expertise was used to connect Maureen to Mr. Williams in an effort to corroborate other testimony about the relationship between the two.

McDonnell Prosecutors Plan More Expert Witnesses

Another computer forensic expert witness will likely be called to testify to dive into the details of an iPhone photo of the governor’s Rolex watch which prosecutors argue was a gift from Williams to the Governor. The defense claims Maureen gave the gift, and Governor McDonnell knew nothing of William’s involvement. The date, time, and origins of the iPhone photo will shed light on how much Bob McDonnell knew, and a computer forensic expert like Mr. Huff will be called to enlighten the jury.

Additionally, the prosecutors will have legal and financial experts explain to the jury what laws the Governor and his wife violated, and how the McDonnell’s financial records are indicative of corruption. As the prosecution presents emails, financial statements, brokerage accounts, and communications regarding Star Scientific and Anatabloc, expert witnesses will be required to simplify what the documents mean and how they relate to the corruption allegations at issue.

McDonnell Defense Team Loses Expert Witness Challenge

Before the trial began, attorneys for the McDonnells unsuccessfully attempted to submit an expert witness who was called to explain the benefits Mr. Williams enjoyed by agreeing to testify against the McDonnells in the criminal trial. Williams, who took the stand under immunity this week to explain his relationship with Maureen McDonnell and detail the gifts he provided to her in exchange for the Governor’s support, is facing a potential civil lawsuit over Star Scientific’s illegal involvement with the McDonnells.

Defense attorneys asked that the judge allow an attorney and forensic accountant to testify as expert witnesses who would explain how Williams would benefit – presumably in an effort to raise the authenticity of his statements into account. Judge James R. Spencer, however, found that testimony to be irrelevant because the jury can apply its “own collective common sense” on how Williams may benefit from the delay in civil litigation, and, further, whether or not that benefit cast doubt on his truthfulness.

Governor McDonnell, who is represented separately, has maintained throughout the trial that he was unaware of the details of his wife’s interaction with Mr. Williams and did not know that Star Scientific was giving her money and buying her gifts. Legal and financial expert witnesses will be asked to explain what Governor McDonnell’s obligations were given his claimed ignorance, and support his statements that he was not personally involved in the corrupt activities of his wife.

6th Circuit Admits Contradictory Expert Witness Testimony

Last week, the federal 6th Circuit Court of Appeals issued an interesting ruling on expert witness testimony when it approved of an expert who directly contradicted the party who hired him. In Lee v Smith & Wesson Corp., the 6th Circuit determined that if an expert witness satisfies the Federal Rule of Evidence 702 qualifications, as articulated in Daubert v Merrell Dow, then testimony that conflicts with his client does not preclude his involvement in the trial.

Expert Witness Contradicts Plaintiff in Personal Injury Lawsuit

In 2006, plaintiff Mark Lee was seriously injured when his Smith & Wesson revolver discharged improperly, causing damage to his face, eye, and nose. While shooting his revolver, Mr. Lee fired three times, with the third shot causing an injurious blast to expel from the weapon into his face. Lee filed a personal injury lawsuit against the gun manufacturer, and testified that before the third shot the gun cylinder swung open – causing the blast that knocked off Lee’s safety glasses and resulted in his facial injuries.

To support his case, Lee reached out to mechanical engineer Roy Ruel as a gun expert witness. Ruel was asked to examine the revolver and testify that it was the cause of Lee’s injuries. Although Ruel concluded that the gun was faulty in its manufacture and design, he determined that the gun cylinder did not swing open as Lee had testified. Instead, Ruel concluded that the accident occurred because the cylinder did not fully lock into place between shots, resulting in high pressure gas expelling from the revolver into Lee’s face. Finding that the gun’s design allowed for the trigger to be pulled even with the cylinder not fully closed, Ruel concluded that Lee’s injuries were created by a Smith & Wesson design defect.

Trial Court Dismissed Contradictory Expert Testimony

Smith & Wesson requested the trial court dismiss Ruel’s testimony because of the critical inconsistencies between his expert opinion and Lee’s account of the accident. The district court granted the motion, and determined that Ruel’s expert testimony failed to satisfy the relevancy requirement of the Daubert test for the following reasons:

  • Lee testified he had no difficulty firing the gun the third time, but Ruel testified that the gun had not fired immediately because the cylinder did not close fully
  • Lee claimed the cylinder swung open after firing, but Ruel concluded that it was closed – however not locked into place
  • Lee’s demonstrated hand grip on the gun showed that he did not touch the thumb latch, but Ruel stated that Lee pushed on the thumb latch prior to pulling the trigger

The differences in victim and expert witness testimony were not minor – in fact Ruel’s expert testimony drastically altered the account of the incident that caused Mr. Lee’s injuries. After the trial court determined that the inconsistent expert would be excluded, Lee dismissed the case contingent on the 6th Circuit’s opinion on Ruel’s ability to offer expert testimony.

6th Circuit Permits Expert Witness Contradiction

In its review of the case, the Court of Appeals for the 6th Circuit looked to the text of Daubert for guidance and pointed out that, “The Rule 702 inquiry is a flexible one… [and its focus] must be solely on principles and methodology, not on the conclusions that they generate.” With that mindset, the court determined that Mr. Ruel had adequately demonstrated that his opinion was relevant to the issues at trial, and was therefore admissible despite being contradictory to Lee’s account. In preparing his expert report, Ruel analyzed the gun, reviewed multiple accounts of Lee’s accident, read Lee’s medical records, and looked over several photos of the revolver immediately after the incident. Finding that “a party is not precluded from proving his case by any relevant evidence, even though that evidence may contradict the testimony of a witness previously called by him,” the 6th Circuit looked at Ruel’s testimony in a vacuum and determined that it was relevant to determining the cause of Lee’s injuries and should have been admitted.

The 6th Circuit concluded that a reasonable jury could determine that Mr. Lee may have been wrong in his account of the incident, but Smith & Wesson would still be liable for the cause of his injuries based on Ruel’s expert testimony. An expert witness questioning or contradicting testimony he is called upon to support is not unheard of, and the 6th Circuit’s analysis in Lee v Smith & Wesson reminds attorneys and judges that the Daubert criteria, independent of other testimony, controls the analysis of the admissibility of expert testimony.

Expert Witness Approves Detroit’s Bankruptcy Plan

Earlier this month, the financial expert witness hired to review the City of Detroit’s bankruptcy restructuring plan approved of the strategy, but reminded city officials there is a long way to go.  Marti Kopacz, the financial expert hired by US Bankruptcy Judge Steven Rhodes to analyze Detroit’s recovery strategy, finalized her assessment in late July.

Detroit’s Bankruptcy Expert Witness Approves Restructuring Strategy

Ms. Kopacz and her team of financial analysts were brought in to the case by Judge Rhodes to help him understand whether or not Detroit’s bankruptcy plan was feasible.  As we blogged about here, Detroit was ordered to pay Kopacz $500,000 for her expert witness report that helped Judge Rhodes determine the right course of action in the city’s bankruptcy.  With Detroit venturing into unknown territory, Judge Rhodes relied on Kopacz’s expert opinion to ensure the unique restructuring process went as smoothly as possible.

After reviewing the city’s financial situation and reading its plan to address the more than $36 million in debt, Kopacz and her team issued a report that approves of Detroit’s bankruptcy emergence strategy.  In a 226-page assessment, Kopacz provided the critical go-ahead on the city’s $1.4 billion reinvestment plan compiled by emergency city manager Kevyn Orr and his army of bankruptcy consultants and attorneys.  Although Kopacz’s expert opinion reflected optimism that Detroit could achieve its financial goals, she noted reasons for concern and reminded city officials that the work has just begun.

Expert Witness Calls for Unified City Leaders in Detroit

In Kopacz’s report, she strongly emphasized that Detroit’s bankruptcy plan is only possible if the city’s labor force and politicians work together to take advantage of the influx of cash to improve upon services.  Sending a message to city employees, Kopacz expressed some criticism that public union workers don’t always grasp “that their job is to provide a service to the taxpayers versus the taxpayers owing them a job.”  Although she praised the city’s employees for their willingness to work and knowledge, Kopacz’s expert report pointed out that differences between public workers and city officials could derail Detroit’s bankruptcy plan.

In Kopacz’s expert opinion, Detroit also needs to update its technology infrastructure as it works through the bankruptcy plan.  Without better technology to streamline the supply of public services, Detroit could easily slip back into costly bad habits that would stunt the city’s planned revitalization.  Overall, Kopacz repeatedly pointed to the need for strong leadership and cooperative government as Detroit worked through its bankruptcy, conditioning her approval of the strategy on the city officials who will take the lead after Judge Rhodes approves the plan.

Other Recommendations from Detroit’s Bankruptcy Expert Witness

In addition to approving the plan and reminding city officials of the importance of quality management in the coming months, Kopacz and her financial team:

  • Recommended that Michigan hire full-time financial experts to monitor Detroit’s bankruptcy and provide oversight reports that ensure the plan is moving along smoothly.
  • Suggested additional efforts to raise funds to remove the blight that plague’s Detroit’s neighborhoods. Currently the city has plans to secure $300 million in loans to combat blight, and Kopacz recommended there be other funding efforts.
  • Offered the suggestion that Detroit lease or sell the city’s airport, which is “currently a cash drain on the city’s budget.”
  • Called to question the city’s expectation of a 6.75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} return on investment for worker pension funds.  Saying that number could be too high, she cautioned city officials about relying on it.
  • Questioned the planned speed of the bankruptcy, which is something that both Mr. Orr and Judge Rhodes have pushed for during the bankruptcy process.  Kopacz warned officials from rushing the bankruptcy at the expense of city improvement.

Ms. Kopacz and her financial expert witness team compiled her analysis after reviewing the city’s financial documents and conducting over 200 interviews and fact-finding meetings with Detroit officials and public employees.  Kopacz also worked closely with Mr. Orr and his bankruptcy consultancy team to understand the strategy before approving of the plan.  As Detroit moves forward, Kopacz and many of the bankruptcy experts will remove themselves, leaving the daunting task ahead up to Mayor Mike Duggan and the other elected officials.

Racetrack Expert Witness Confirms Speedway Safety in Injury Lawsuit

Former sprint-car racer John Westbrook filed a lawsuit seeking financial compensation for injuries that confined him to a wheelchair he suffered during an accident at nationally renowned dirt-car track, Williams Grove Speedway.  As the adequacy of Williams Grove’s safety measures were a key point of contention, the trial featured testimony of racetrack safety expert witnesses who provided opinions regarding the conditions of the track in order to aid jurors in assigning liability for Westbrook’s injuries.

Racetrack Expert Witness Defends Track Safety Measures

On the last day of trial, a racetrack safety expert witness testified that the Williams Grove’s safety procedures were sufficient and satisfied the industry standards of dirt-track racing.  Martyn Thake, a designer and inspector of racetracks, was called by Williams Grove to as an expert witness on racing safety.  During his expert testimony, Thake made a point to counter two of Westbrook’s arguments against the racetrack:

  1. Williams Grove did not provide adequate instruction on neck safety equipment:  Earlier in the trial, an expert witness in head and neck safety testified on behalf of Westbrook by explaining that a HANS head and neck restraint would have prevented the injury to his neck.  Westbrook then argued that Williams Grove failed in its duty to recommend HANS restraints, but Mr. Thake pointed out that the racetrack did recommend equipment listed as “neck collar,” which, in the parlance of the dirt-track industry, includes the HANS system.
  2. Williams Grove should have had a “catch fence” to prevent Westbrook’s car from falling down the incline:  Westbrook’s vehicle flipped between two turns on the Williams Grove track, and rolled down an incline, with the resulting damage causing his paralysis.  Central to Westbrook’s argument was the claim that a catch fence – a protective fence above the racetrack wall – would have stopped his car and should have been installed for safety reasons.  Mr. Thake explained that a standard catch fence is not designed to catch cars, but to prevent debris from flying out of the racetrack onto spectators – thus having one would not have impacted Westbrook’s crash.

During his expert testimony, Mr. Thake explained to the jury that there are no written regulations for sprint-car racetracks, requiring inspectors to apply a set of industry accepted guidelines for safety.  Going further, Mr. Thake commented that in his opinion, supported by years of building and inspecting tracks, the Williams Grove Speedway operated under acceptable conditions and provided adequate safety recommendations to its drivers.  Based on the industry standard for sprint-car racing, Mr. Thake’s expert opinion supported William Grove’s position that its racetrack was safe and that it had provided sufficient safety precaution to Westbrook prior to his race.

Expert Witness Testimony Proves a Non-Factor

Last week, the Cumberland County, North Carolina jury determined Williams Grove Speedway was not liable to Westbrook because the former driver had signed a waiver of liability prior to taking part in the race.  Racetracks like Williams Grove require all drivers to sign a waiver-release that clears the track of legal liability for injuries sustained during accidents, and the Cumberland Country jurors determined that the document precluded Westbrook from recovering financial damages.

Although the decision did not rely on the testimony by racetrack safety expert witnesses, the analysis of the Williams Grove Speedway provided during trial will no doubt catch the eye of other tracks concerned over scrutiny on safety measures.  Ultimately, the strength of racetrack waivers proved sufficient to the trial jury, but should an appeals court disagree, the testimony of racetrack expert witnesses may become a factor in Westbrook’s lawsuit.

Expert Witnesses Debated Bryan Stow Life Expectancy

Earlier this month a Los Angeles jury awarded injured baseball fan Bryan Stow $13.9 million in a civil suit brought on his behalf.  Significant in determining the appropriate damages was the jury’s assessment of Mr. Stow’s life expectancy, a decision that was aided by use of medical expert witnesses who diagnosed Bryan’s condition and projected how long he could survive with the injuries suffered.

Bryan Stow’s Civil Lawsuit against the LA Dodgers

Bryan Stow’s story gained national attention after he was seriously injured during a fight outside of Dodgers Stadium, home of the Los Angeles Dodgers baseball team, on MLB’s Opening Day, 2011.  Stow, a fan of Dodgers’ rival San Francisco Giants, was viciously beaten by two men in the parking lot of Dodgers Stadium after engaging in a verbal altercation following the game.  Stow was left with permanent brain damage preventing him from ever working again and ensuring that he will require round-the-clock medical care for the rest of his life.

Bryan’s attorneys filed a lawsuit against his assailants and the Los Angeles Dodgers seeking over $65 million to compensate him for injuries suffered, wages lost, and the cost of lifetime care.  In addition to pursuing the two men who beat him, Stow alleged the Dodgers organization failed in its duty to provide adequate parking lot security which, his attorneys argued, would have prevented the grisly attack that left Stow permanently disabled. The Dodgers argued that Stow, whose blood alcohol level was .18 percent, played a significant role in instigating the fight – which reduced the team’s liability.

In mid-July, a jury returned a verdict of $13.9 million, with the Dodgers responsible for only 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of that total.  In addition to testimony regarding Stow’s blood alcohol level and eyewitness accounts of the incident, jurors were influenced by expert witness testimony which projected how long Bryan would live – an important determination given that the damage award was heavily influenced by the anticipated costs of his lifetime medical care.

Expert Witnesses Debate Bryan Stow’s Life Expectancy

Featured during the trial were medical expert witnesses debating Bryan Stow’s life expectancy given his condition.  Attorneys representing Bryan Stow retained medical expert witnesses to testify that the 45-year-old did not suffer a severe drop in his life expectancy as a result of his permanent brain damage.  Four physicians testified that they had analyzed Stow’s injuries and taken his previous lifestyle into account to determine that Bryan’s life expectancy had only dropped 2 – 5 years as a result of his condition.  After Stow’s attorneys presented expert witnesses arguing he would not experience a significant decrease in life expectancy, defense attorneys presented an expert countering the assessment.

Robert Shavelle, the technical director of the Life Expectancy Project, was called as a defense expert witness to challenge Stow’s medical experts’ conclusion that his life expectancy was not significantly reduced.  Shavelle testified that Stow’s life expectancy would drop by at least 10 years, and concluded that he expected Bryan to only live 23 more years – countering the 28 – 30 more years that Stow’s experts predicted.  Mr. Shavelle based his calculation on scientific studies and reports about the effect traumatic brain injuries have on life expectancy, and on medical records of the complications Stow has suffered since the 2011 attack.

Stow’s attorneys challenged Mr. Shavelle for not taking Bryan’s physical health prior to the injury into account, but the defense expert witness stood firm that he expected Bryan’s life to be 10 years shorter due to his injuries.

LA Jury Reduces Bryan Stow’s Damages Award

After several days of deliberations, jurors in the Bryan Stow civil suit determined that he was due some damages, but significantly reduced the amount he sought.  Although $13.9 million is not a small figure, jurors clearly felt that Stow’s claims for $65 million overvalued the damages he suffered and the projected costs of his lifetime care.  While there were likely a number of factors in the jury’s decision to limit Stow’s available damages, expert witness testimony that his life would be drastically shortened as a result of the injuries likely played a part in the outcome.

California DA Raises Questions with Choice of Police Shooting Expert Witness

A District Attorney in Sonoma County, California has come under fire recently for declining to file charges against a police officer who fatally shot a toy-gun carrying 13-year-old last October.  At particular issue is the DA’s choice to consult psychology expert witness William Lewinski, an authority on “reaction times and shooting dynamics” who consults with police officers and frequently testifies on their behalf in police shooting trials.

Police Officer Fatally Shoots Teenager

The tragic origins of the case occurred last October when Sonoma County Detective Erick Gelhaus fired seven shots into Andy Lopez, a teenager carrying a plastic AK-47 with the distinctive orange cap removed.  Believing the weapon was real, Gelhaus shot the 13-year-old Lopez after the boy started to run towards him ignoring instruction to drop the gun.  District Attorney Jill Ravitch was called on to review the Lopez shooting in order to determine if Detective Gelhaus would face any criminal charges, and reached out to Mr. Lewinski for his expert testimony on the subject of police shooting.

Police Shooting Expert Witness finds No Wrongdoing

District Attorney Ravich reached out to Mr. Lewinski because his experience developing and researching the field of police shooting psychology would help her make the decision about whether or not to press charges in the shooting death of Andy Lopez by Detective Erick Gelhaus.  Lewinski’s research incorporates behavioral science principals to situations in which police officers are place in a potentially life threatening situation in order to explain why officers fire their weapons in an effort to help prosecutors or jurors determine whether or not the shooting was justified, or if it was negligent or criminal.

After reviewing witness statements, interviewing Officer Gelhaus, and examining the case files, Mr. Lewinsky produced a 14-page expert witness report that found Gelhaus’ explanation of the shooting “supportable to a high degree of scientific certainty.”  Noting that Gelhaus had good reason to believe his life was in danger when Lopez ran at him with what reasonably appeared to be a real gun, Mr. Lewinksy wrote, “From a behavioral science perspective and an action / reaction paradigm, Gelhaus couldn’t wait until the gun was pointed at him, but had to fire, and keep firing, until the perceived threat was removed.”  Mr. Lewinsky’s expert report remains a significant factor in DA Ravich’s decision to not file criminal charges against Officer Gelhaus.

Police Shooting Expert has History Siding with Officers

Critics of Ravich’s decision to not file charges point to the selection of Mr. Lewinsky as an expert witness likely to side with Officer Gelhaus.  Mr. Lewinsky has earned a reputation as being a police psychology expert witness who consistently supports the actions of officers in police shooting situations.  In 2010, Lewinsky was called as an expert witness in the shooting trial of police officer Johannes Mehserle after he shot unarmed train passenger Oscar Grant on an Oakland transit platform.  Informing the jury that “in-attentional blindness” and “muscle memory” can cause a police officer under stress to mistake his gun for his Taser – carried on the opposite hip – and mistake a potential suspect as being armed and dangerous, Lewinsky’s testimony explaining Mehserle’s actions were key in having charges reduced from murder to involuntary manslaughter.

Throughout his career, Mr. Lewinsky has offered similar testimony in a large number of police officer shooting cases, frequently telling judges and jurors that police are justified in opening fire as soon as they perceive a potential threat, which can occur before a gun is pointed at them.  Lewinsky’s ‘shoot-first doctrine’ is, he claims, the result of years of research and is held in high regard by “top experts in the legal, academic, and criminal justice communities worldwide.”  His research on police reaction times and perception of violent resistance has been called upon in several criminal and civil trials, and his prominent expert witness status makes him a fixture in the psychology of police shooting.  District Attorney Jill Ravich certainly knew of Mr. Lewinsky’s history as an expert witness when selecting him, however, critics of her choice have yet to offer reliable expert testimony countering Lewinsky’s report.

Detroit Pays $500,000 in Financial Expert Fees for Bankruptcy Filing

Detroit has added more than $500,000 in expert witness fees to its growing short term debt accrued as a result of the city’s bankruptcy filing. Massachusetts financial advisor Marti Kopacz will receive payment of $514,736.71 for work performed in April and May that resulted in a financial expert witness report that assesses the feasibility of Detroit’s bankruptcy plan. Detroit will present its bankruptcy plan to US Bankruptcy Judge Steven Rhodes in a trial this summer in an effort to have the restructuring strategy approved.

Detroit Pays for Financial Expert Witness

Marti Kopacz, manager of Boston’s Phoenix Management Services, has a background in public-sector turnarounds and was appointed by Judge Rhodes as the court’s expert witness. Judge Rhodes hired Kopacz to give him the information he needs to understand the “issues of municipal finance and viability” that will come into play while he oversees Detroit’s bankruptcy restructuring. Kopacz’s primary responsibility is to present an expert witness report analyzing the city’s plan for addressing its $18 billion in debt in order to determine whether or not the strategy is feasible, and she may also be called upon to testify during the bankruptcy proceedings.

Last week, Judge Rhodes ordered the city to pay the over $500,000 in fees that Kopacz and her firm have accrued in two months of work. Kopacz’s financial management team have reviewed financial documents, interviewed current and former city officials, consulted with judges and other financial professionals, and compiled the report requested by Judge Rhodes at the time he appointed Kopacz as his expert witness. How Judge Rhodes will use Kopacz’s report and potential testimony remains to be seen, but her work will undoubtedly influence the outcome of Detroit’s bankruptcy trial as the judge has indicated he will rely heavily on her expert analysis to understand municipal finance.

Judge Rhode’s use of Kopacz and her financial management team comes as no surprise – courts often rely on the reports of independent expert witnesses to evaluate strategic and financial planning before approving a course of action. Given that a city of Detroit’s size has never filed for bankruptcy protection, it is expected that the presiding judge would need to tap a top-dollar expert witness to assist him through relatively uncharted territory. Detroit, which is responsible for the administrative and court costs of its bankruptcy filing, has little say in the matter and must pay Kopacz’s expert fees as part of its bankruptcy proceedings.

Detroit’s Bankruptcy Costs Rise

The expert witness fees owed Kopacz and her financial team are added to the over $36 million in costs Detroit has accrued as part of its bankruptcy filing. The bulk of the fees have been paid to its legal restructuring firm, Jones Day, which has billed over $17 million in fees and expenses accrued while creating the city’s bankruptcy plan. Fifteen other consulting firms and bankruptcy professionals filled out the remaining balance, and now Kopacz’s expert report adds another 1/2 million to the total.

Although the fees associated with Detroit’s bankruptcy are substantial, the law firm appointed by Judge Rhodes to track the costs has found every dollar spent to be justified. The Fee Examiners at Chicago-based bankruptcy law firm Shaw Fishman Glantz & Towbin wrote, “Due to the magnitude and complexity of the Case, the novelty of the legal issues, the extremely tight time frames imposed by the Court and the strong differences in opinion between the various parties about what to do and how to do it, it was (and continues to be) inevitable that the costs associated with the services provided by the various Professionals were going to be significant.” Finding that the unprecedented nature of Detroit’s bankruptcy has created a unique situation, Judge Rhodes seems to be taking all the necessary steps to ensure the process is properly managed, regardless of the costs. Marti Kopacz’s financial expert witness report is simply the latest in a growing use of financial, legal, and bankruptcy professionals who have been tapped to assist the bankruptcy court in approving Detroit’s massive restructuring strategy.

Pennsylvania Supreme Court: Is Social Science “Common Sense” or a Tool to Correct Juror Misconceptions?

The Pennsylvania Supreme Court recently issued two decisions regarding the use of social science experts in criminal cases. As noted by University of Pittsburgh law professor David Harris, however, the opinions appear to “come from two different worlds.” In one, Commonwealth v. Walker, the Court held that expert testimony regarding memory and human perception could be used to educate jurors on the potential fallibility of eyewitness identifications, holding that such evidence may assist the jury in weighing the evidence presented at trial. In the other, Commonwealth v. Alicia, the Court held that an expert was not permitted to explain the psychological factors that could result in a false confession. Unlike in Walker, the Alicia Court did not provide any discussion of the underlying scientific research. Rather, a divided Court simply held that the proposed expert testimony would infringe on the “jury’s role as arbiter of credibility.”

The Court’s divergent approach to social science in these cases raises important questions about the current and future role of social science in the courtroom.

The Limits of Eyewitness Identification

In Commonwealth v. Walker, the Court reversed its longstanding position on the use of expert testimony regarding the reliability of eyewitness identifications, holding that such evidence is no longer per se impermissible in Pennsylvania. In doing so, the Court followed the “unmistakable trend” in recent cases across the country and joined 44 other states and the District of Columbia in permitting expert testimony on this issue. Specifically, the Court was convinced that “advances in scientific study have strongly suggested” that eyewitnesses identifications may be inaccurate, particularly when the crime involves a weapon and the perpetrator is of a different race. In the Court’s view, effective cross-examination and closing arguments may be insufficient to inform the jury of these risks.

Writing for the majority, Justice Todd explained that trial courts should have the discretion to permit an expert to “educate” the jury about the psychological factors that may impact eyewitness identifications. In so holding, the Court dismissed the Commonwealth’s argument that such testimony would invade the jury’s role as fact-finder. The Court noted that experts would only be permitted to address general psychological principles, not the credibility of a particular witness or the accuracy of any particular identification. In the majority’s view, such testimony would improve juror decision-making by opening their eyes to the potential fallibility of human memory and perception in high stress situations.

Chief Justice Castille and Justice Eakin issued dissenting opinions, with Chief Justice Castille also joining in Justice Eakin’s dissent. Chief Justice Castille criticized the majority for blindly following the trend in decisions of other states, without independently evaluating any psychological research. In refusing to “sign on to the Majority’s enshrinement of this contested social research in these circumstances,” Chief Justice Castille expressed skepticism about the social science underlying eyewitness identification and questioned whether expert testimony on memory and perception would actually assist jurors. He went on to say that “I understand the attraction of the lemmings to the sea approach, but I also try to keep in mind the cliff awaiting[.]” He also questioned whether the benefits of expert testimony, as opposed to the traditional approach of exploring flaws in eyewitness identification through effective cross-examination, “will justify the price-tag” of competing experts.

“The Phenomenon of False Confessions”

In Commonwealth v. Alicia, the majority took a more skeptical view of developing social science. In Alicia, a man with “low intelligence” and “mental health issues” confessed to firing a gun that killed an innocent bystander. Of the eyewitnesses, only one pointed to the defendant – the others claimed it was one of two other men. Before trial, the defendant convinced the trial court that he should be permitted to offer an expert to explain psychological research regarding how false confessions may result from interrogation.

The Commonwealth took an interlocutory appeal from the trial court’s decision, asserting that the proposed expert testimony invaded the jury’s exclusive role as the arbiter of credibility. A divided panel of the Superior Court affirmed. In an opinion authored by Justice McCaffrey, the Supreme Court reversed, holding that “[g]eneral expert testimony that certain interrogation techniques have the potential to induce false confessions improperly invites the jury to determine that those particular interrogation techniques were used to elicit the confession in question, and hence to conclude that it should not be considered reliable.” Such issues, rather, are “best left to the jury’s common sense and life experience[.]”

Unlike its decision in Walker, the Court offered no discussion of the scientific studies on false confessions or the prevailing position of social science on the issue. In the opinion of David Harris of the University Pittsburgh, the Court’s omission of any such discussion is “troubling,” as the research on false confessions “is there. It’s well done. It’s reliable. And yet, it’s not even mentioned in the Alicia opinion. [The Court] just ignore[s] it.”

Scientific Testimony or Common Sense?

The primary distinction between the Court’s treatment of social science in Walker and Alicia is the subject matter of the research. Although the Court has refused to endorse the validity of the body of psychological research behind false confessions, it has given defendants license to use similar research to challenge eyewitness identifications. One possible reason for the different outcomes is that police interrogations and confessions are familiar territories for the Court, while psychological findings regarding “weapons focus” and “cross-racial identification” are outside the Court’s experience. Indeed, the admissibility and reliability of confessions are already the subject of Miranda and other constitutional protections that have long been a staple of criminal procedure.

Setting aside for a moment the question whether the Court has simply given greater credence to the more extensive body of social science underlying faulty eyewitness identifications over false confessions, one thing is clear – the Court will approach expert testimony in this field with caution. The Court clearly was reluctant to admit expert psychological or psychiatric testimony that would serve as a direct challenge to witness credibility, a matter viewed as “well within the range of common experience, knowledge, and understanding of a jury.”

As the Court recognized in Walker, however, social science experts can educate the jury that its common sense may be wrong in certain circumstances. Such expert assistance may improve decision-making. But, as noted by Chief Justice Castille, experts are expensive, and “not all disciplines self-denominated as scientific are as objectively reliable as others.” While costs should not alone justify excluding important exculpatory evidence in criminal cases, practical concerns regarding whether expert testimony bolstering or undermining the testimony of eyewitnesses to a crime clearly warrants further scrutiny on a case by case basis, ensuring that the requisite elements of Pennsylvania Rule of Evidence 702 and the Frye test have been satisfied.

It remains to be seen to what extent the Court’s ruling in Walker will generate frequent expert challenges to eyewitness testimony. For now, it is up to the trial courts and criminal defense attorneys to determine which cases will likely benefit from social science experts and what quantum of expertise they must possess to qualify to “teach” the jury about the pitfalls of eyewitness identification.

ADHD Expert Witness Testimony Rejected in Criminal Case Alleging Fraud

Last month, US District Court Judge W. Louis Sands rejected testimony from a neuropsychology expert witness in the criminal trial of Stewart Parnell, accused of defrauding customers of his now defunct Peanut Corporation of America (PCA) by selling them peanut products filled with harmful contaminants. Throughout 2008 and 2009, PCA distributed peanut products that led to a widespread outbreak of Salmonella that sickened 700 people and killed 9. Parnell, responsible for PCA quality control, hired Dr. Joseph Conley, Jr. to testify that his Attention Deficit Hyperactivity Disorder (ADHD) made it impossible for him to comprehend the problems leading up to the contamination – a unique, but ultimately unsuccessful approach.

Defendant Hires ADHD Expert Witness

Parnell is charged with fraud for knowingly selling peanuts with harmful microbiological content, and shipping a product that did not meet customer’s specifications. Central to the government’s case against him are several email correspondences between Parnell and other members of PCA which indicate that he was aware of the potential contamination and distributed the peanut products regardless. If the government can connect the contents of his emails to knowledge about the Salmonella contaminant, Parnell could be found guilty of intentionally defrauding customers by knowing the risks associated with distributing the tainted peanuts and withholding safety information.

In his defense, Parnell called upon Dr. Conley to testify that his ADHD prevented him from formulating the knowledge necessary to defraud because it left him incapable of understanding or appreciating the nature of the communications regarding the peanut contamination. Dr. Conley’s expert findings report that Parnell suffers from being restless, distracted, and inattentive – depriving him of the neurocognitive capacity to function in the role of quality control manager. According to Conley, “Mr. Parnell was and remains cognitively incapable of fielding, delineating, organizing, and integrating the daily plethora of phone calls and E-mails required in managing three companies.”

Dr. Conley explained that his expert witness testimony was not designed to defeat intent, but rather to demonstrate that Parnell did not, and could not, acquire the knowledge assigned to him in the indictment. Arguing that his ADHD made Parnell unlikely to create a scheme to defraud customers because he could not read or understand the necessary emails, Dr. Conley’s testimony represents a unique approach to the use of medical expert witnesses at criminal trials.

Judge Rejects ADHD Defense

In response to Dr. Conley’s ADHD testimony, the prosecution called Dr. David J. Schretlen to point out flaws in both his methodology and conclusions regarding the effect of Parnell’s alleged disorder. Dr. Schretlen testified that Parnell’s condition did not render him incapable of understanding emails because his responses to work communications demonstrated that he was able to comprehend the significance of the correspondence. Further, Parnell was not diagnosed with ADHD as a child, even though it is mostly commonly diagnosed in childhood, which called into question Dr. Conley’s research methods and diagnosis.

Citing a number of factors, including Dr. Schretlen’s expert analysis, Judge Sands rejected the use of Dr. Conley and his ADHD expert witness testimony. Pointing out that a defendant must “show a valid scientific connection” between testimony and the facts at issue in order have an expert witness admitted, Judge Sands found that Parnell had failed to forge the link between his alleged ADHD and the inability to understand the information regarding the contaminated peanuts. In Judge Sands’ opinion, Dr. Conley’s expert witness testimony designed to establish diminished capacity was not relevant because the case alleged Parnell formed a complex scheme to defraud customers, not that he had made errors in processing information contained in emails.

The case has gained attention for Parnell’s uncommon use of expert witness testimony to attempt an ADHD defense. Although ultimately unsuccessful because it was not relevant, the use of Dr. Conley to attempt a diminished capacity argument due to the neurocognitive deficiencies caused by ADHD is an interesting approach and one worth noting.