Mistrial Declared After Expert Admits to Falsifying Report

Mistrial Declared After Expert Admits to Falsifying Report

Written on Tuesday, August 30th, 2016 by T.C. Kelly
Filed under: ExpertWitness

An expert’s alleged misconduct resulted in a mistrial for Caleb Loving, who was charged with a number of felony offenses after he set fire to his apartment in Evansville, Indiana and then carried a bag of explosives into a McDonald’s restaurant. Loving’s mental health is an issue in his trial.

The expert, Albert Fink, was a court appointed psychologist who evaluated Loving and determined that he was competent to stand trial. Fink was expected to testify during Loving’s criminal trial before the mistrial declaration brought the trial to a halt.

Competency to Stand Trial

Criminal defendants have a constitutional right to participate in criminal proceedings in a meaningful way. To do so, they must be mentally competent to understand the charges and proceedings and to assist their counsel. If a question is raised about a defendant’s ability to do so, the court must decide whether the defendant is competent to stand trial.

When a defendant’s lack of competence is attributable to a mental health condition that is treatable, a trial may be delayed until the defendant’s condition improves. After a course of medication, a court may decide that the defendant has regained the ability to perceive reality or to understand the charges, potential defenses, and witness testimony. At that point, the defendant is declared competent and the trial proceeds.

Judges typically appoint psychologists to evaluate the defendant and to prepare a report concerning the defendant’s competency. The psychologist bases that report on interviews with the defendant, a review of the defendant’s medical records, and (in appropriate cases) upon interviews with the defendant’s family members and other significant sources of information.

Indiana law requires the appointment of two experts to evaluate competency. Both experts in Loving’s case agreed that he was competent, but it took the second expert a month to prepare his report, while Fink’s was prepared in just two weeks. The other expert testified during Loving’s trial that he interviewed Loving before writing the report. It appears that the prosecutor expected Fink to give similar testimony.

Falsified Report

Fink was involved in a traffic accident while the Loving trial was underway. He told a state trooper who investigated the accident that he deliberately drove his car into a tree so that he would not need to testify. He said he was worried that the accuracy of his report would be questioned if he was forced to testify.

Fink admitted that he falsified his report. He also conceded that he falsified court documents in several other Vanderburgh County cases in the last several years. How many of the seventy reports that Fink wrote were affected is not yet known.

Fink has been charged with obstruction of justice for providing false information to the court. Prosecutors have not revealed the precise nature of the false information that Fink provided, but it appears that when Fink wrote reports in other cases, he simply invented the contents of the report without interviewing the defendant.

As a result of the mistrial motion, the jury in Loving’s case was discharged. Loving will be brought to trial again at some point in the future. The question of his competency to stand trial may be raised again, and the court may need to appoint another expert to evaluate Loving’s condition before a new trial date can be set.

Fink’s Past and Future

Fink is one of only a few forensic psychologists in Indiana. He has testified in hundreds of other cases across the state. To the extent that criminal convictions may have been based at least in part on Fink’s expert testimony, it is likely that those cases will be scrutinized to determine whether Fink provided false testimony that might have had an impact on the verdict. If so, the defendants in those cases will probably be entitled to a new trial.

Fink is 83 years old and has been licensed to practice psychology in Indiana since 1973. This is not his first brush with controversy. Fink surrendered his license in Kentucky in 1993 to resolve charges that he had been negligent or incompetent and that he had divulged confidential information.

The Indiana State Psychiatry Board decided not to discipline Fink as a result of his decision to surrender his Kentucky license, noting that no finding of wrongdoing had been made. The Board also declined to take action concerning allegations that Fink was involved in bid rigging concerning his application to direct mental health services for the Indiana State Penal Farm prison. Fink was absolved of criminal wrongdoing, but his contract as a state prison psychologist was rescinded.

Whatever ultimately happens in Fink’s case, the importance of honest behavior as an expert witness can never be overstated. Every expert’s first duty is to the truth. Fink apparently lost sight of that fundamental rule. The result may be years of turmoil as investigators review the hundreds of cases in which he played a role.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.