The new trial of a man who was previously convicted of five counts of vehicular manslaughter and sentenced to 30 years in prison may be the test for how Florida courts apply the recently adopted Daubert standard.
On April 13, 2013, a then-21-year-old Jabari Kemp, was behind the wheel of a Mercedes sports car that was estimated to be traveling at 128 mph when it traveled down an Interstate 95 exit ramp and crashed into another vehicle.
The impact of the crash was so powerful that four of the five occupants of the other vehicle were ejected. All five died from traumatic injuries, including crushed internal organs, broken bone, and severed limbs.
Kemp was initially charged with five counts of DUI manslaughter in connection with the fatal crash. The Florida State Attorney’s Office dropped the DUI charges because of questions concerning the validity of blood samples that reportedly showed high levels of THC.
Kemp testified that he lost consciousness and that he does not recall the crash. His defense team argued that he likely lost consciousness with his foot on the accelerator, which caused his car to speed up as it traveled down the ramp.
The state’s key witness was Florida Highway Patrol Corporal Robert Dooley, an accident investigator who provided testimony about the evidence of braking. Dooley testified that damage to the crash victim’s vehicle indicated that Kemp’s car was braking at the time of the crash. He based his opinion on the assertion that braking caused the front end of the braked car to “dip” and that the nature of the crash damage indicated that Kemp’s car had dipped at the moment of impact.
Dooley’s expert testimony was allowed based on the Frye standard of whether the expert testimony should be admitted.
Kemp was convicted of five counts of vehicular manslaughter and sentenced to 30 years in prison.
In 2013, the Florida Legislature and then-Governor Rick Scott changed Florida law to require judges to use the more-stringent Daubert standard in deciding whether to admit expert testimony.
The Florida Supreme Court initially directed courts to continue using the Frye standard. However, when new justices were appointed to the Florida Supreme Court, the new justices directed courts to begin using the Daubert standard.
Florida’s adoption of the Daubert standard happened while Kemp’s post-conviction proceedings were pending.
New Trial Ordered
On appeal, the 4th District Court of Appeal found that the testimony of the Florida Highway Patrol accident investigator, Robert Dooley, did not meet the Daubert standard. On July 31, 2019, the appeals court ordered a new trial for Kemp.
Florida Supreme Court Appeal
Florida Attorney General Ashley Moody’s office appealed the appellate court’s ruling.
On November 29, 2019, Moody’s office filed a brief with the Florida Supreme Court, asking it to place a stay on the lower-court proceedings. The brief argued that the appellate court did not properly apply the Daubert standard.
It argued, “Here, the Fourth District adhered to a rigid approach, robotically applying the factors set forth in Daubert in order to exclude evidence rather than employing a flexible approach to permit the jury to weigh the testimony…Whether testimony is admissible as an expert opinion is determined by the facts of a case measured against the principles of Daubert….Here, the proponent of the opinion — the state — failed to establish that Dooley’s expert testimony satisfied any benchmark of reliability required by Daubert.”