Tag Archives: death penalty

Expert Changed His Testimony to Support Client’s Case

Expert’s testimony in another trial raises serious questions about whether he changed his testimony to support his client’s case

A judge has ordered Montana Attorney General Tim Fox to preserve his office’s communications with an expert witness in a lawsuit against lethal injections, along with the results of any internal investigation into allegations that the witness was told to change his testimony.

The Underlying Case

Death-row inmates Ronald Allen Smith and William Gollehon sued the state of Montana over its plans to use pentobarbital in lethal injections after the Department of Corrections was no longer able to obtain pentothal, the original barbiturate that the state used in its two-drug execution protocol.

Montana law requires that an “ultra-fast-acting barbiturate” be used in lethal injections.

The Montana State Department of Justice hired Roswell Lee Evans, the dean of Auburn University’s pharmacy school to support the state’s argument that a drug called pentobarbital met the requirements of Montana state law for use in executions.

At trial, Evans testified that pentobarbital met Montana’s “ultra-fast-acting barbiturate” requirement. However, Evans’ original declaration did not address this “ultra-fast-acting” requirement.

The state’s argument was ultimately unsuccessful and District Judge Jeffrey Sherlock ruled that pentobarbital did not meet the requirements of the Montana law, stating that, “Under the express terms of the statute, the State of Montana is not allowed to use the ‘fastest acting barbiturate available’ or a ‘relatively fast-acting barbiturate,’ only an ‘ultra-fast barbiturate.’… The State of Montana is hereby enjoined from using the drug pentobarbital in its lethal injection protocol unless and until the statute authorizing lethal injection is modified in conformance with this decision.” This ruling effectively halted all executions in Montana.

The Tennessee Case

The attorneys for two of Montana’s death-row inmates located the transcript from an unrelated case in Tennessee where Evans also testified as an expert witness. In the transcript, Evans appears to admit that he changed his original opinion on pentobarbital to better support the State of Montana’s argument. The attorneys requested that District Judge Deann Cooney order the preservation of documents so that they could investigate whether Evans had been coerced to change his original testimony.

Jim Taylor, the Legal Director of the ACLU of Montana has stated that it appears that government attorneys persuaded Evans to change his original declaration. Taylor has argued that if Evans had not changed his testimony, the case would never have gone to trial.

The Order

Judge Cooney entered an order in this matter on December 12, 2016, stating, “This court agrees Dr. Evans’ testimony in West v. Schofield raises serious questions about whether he changed his testimony to reflect what the defendants wanted him to say as opposed to what he believed to be true.”

The Response

The Montana Department of Justice has denied telling Evans to change his testimony. Spokesperson for Fox, Eric Sell, stated, “The state will comply with the court’s order.… We are confident that, after review, the court will find that we did everything right.”

Assistant Attorney General Ben Reed has stated that Evans’ testimony was consistent because barbiturates are typically classified by their duration and not their rapidity.

Gold Scales of Justice on wood table

North Carolina Death Penalty Defendant Offers Trial Strategy Expert Witness

Defense attorneys for a North Carolina man have asked a death penalty expert witness to submit a report to the trial judge which questions prosecutorial strategy in a murder trial.  The case is an example of defense attorneys using an expert witness to cast doubt on prosecution witnesses who are offered deals in exchange for testimony against a lead defendant.

North Carolina Prosecutors Seek Accomplice Testimony in Murder Trial

Anthony Vinh Nguyen, 24, is on trial facing charges of first-degree murder, first-degree kidnapping, first-degree burglary and armed robbery in an incident which resulted in the death of Shelia Pace Gooden, 43, in October of 2013.  Nguyen has been accused of shooting Gooden during a botched robbery attempt after he and two other men broke into her home and held her hostage in order to steal her $200 flat screen television.  According to two accomplices, Nguyen fatally shot Gooden in the head during the robbery, but the defendant has maintained that he was not even with the two men that night and as such he did not take part in the robbery homicide.

Assistant District Attorneys Jennifer Martin and Ben White are the lead prosecutors in the case, and are asking for Nguyen to receive the death penalty if he is convicted.  Nguyen’s two accomplices – Daniel Aaron Benson, 25, and Steve George Assimos, 24 – are also charged with first-degree murder, kidnapping, and burglary charges, however neither of them face the death penalty as both are likely to agree to testify against Nguyen in the upcoming trial.

Accomplices are frequently offered plea agreements in exchange for testimony against a co-defendant, but Nguyen’s defense attorneys – David Botchin and John Bryson – have called an expert witness to argue that the two men who claim Nguyen shot the victim are only saying what the DA is telling them to.

Expert Witness Report Questions Prosecutorial Strategy

Attorneys Botchin and Bryson have submitted papers indicating their intention to call Ernest L. Conner Jr., a criminal defense attorney, as an expert defense witness in death penalty cases and prosecutorial strategy.  Connor submitted an affidavit to the court which explains that the focus of his expert testimony would be on the favorable treatment that the DA’s plan on giving Benson and Assimos, and how that treatment could unfairly influence their testimony against Nguyen.  Although the prosecutors have not formally offered either man a plea deal in exchange for testimony, Connor has argued that the arrangement is likely.

Connor explained in his affidavit that the alleged accomplice testimony can still be influenced even if prosecutors have not offered plea agreements at this point in the proceedings.  Connor, who has been involved with capital punishment litigation since 1992, dismissed the need for a specific deal for testimony by writing, “Since prosecutors must inform defense counsel of any formal plea offer, prosecutors often take advantage of an accomplice’s mere hope or expectation of leniency to be the motivating factor for the accomplice’s testimony.”

Further, according to Connor’s expert opinion, the fact that the DA’s have not sought capital charges against Benson and Assimos in the three years since the shooting “is an unspoken concession that implies lenient treatment is to come.”  The prosecution has not formally objected to Connor’s proposed death penalty expert testimony, but will likely attempt to prevent him from testifying at trial.

Death Penalty Litigation Expert Testimony Faces Stiff Opposition

The proposed testimony by litigation expert Ernest Connor faces two primary hurdles during the pre-trial motion phase: first, prosecutors have not made any plea offer to either of Nguyen’s alleged accomplices, and second, the unusual expert testimony may not be permitted during trial.  DA’s Martin and White have not talked about Connor’s proposed expert testimony directly, but have maintained that both Benson and Assimos have been cooperative from the start of the investigation and have not received plea agreements.  Although Connor said that a lack of a deal was not important, the circumstances of the accomplice testimony may diminish his expert report.

The stiffer challenge which Nguyen’s defense team faces is whether Connor will be allowed to testify as a trial strategy expert witness at all.  Expert witnesses walk a fine line between offering a permissible interpretation of facts and an impermissible opinion which could influence jurors, and Connor’s proposed testimony regarding the credibility of accomplice witnesses based on prosecutorial plea agreement strategy is squarely in a grey area.  The case will proceed this week where prosecutors are likely to object to the defense’s proposed death penalty expert.

Nationally Renowned Lethal Injection Expert Resigns Post

A nationally renowned expert witness who has worked to defend the lethal injection method used by a number of states across the country has terminated his role, leaving the states facing legal action questioning their death penalty procedures without his critical testimony.  Mark Dershwitz, an anesthesiologist at the University of Massachusetts, withdrew himself from the litigation challenging death penalty drugs last week.

Expert Anesthesiologist Supports Death Penalty Procedure

Dr. Dershwitz had risen as a leading expert for prison officials over the past decade, and most recently was called as an expert witness by the state of Ohio in support of its new two-drug combination used in lethal injections. Ohio was challenged for violating constitutional protection against cruel and unusual punishment after the two-drug method led to a 26-minute execution in January.  During the legal process, Ohio consulted with Dr. Dershwitz who has long defended the use of the two-drug system and has offered testimony that inmates do not suffer throughout the process.

Throughout his career as a death penalty expert witness, Dr. Dershwitz has written affidavits, presented expert reports, and offered testimony in court for states accused of civil rights violations in lethal injection procedures.  Over the past 10 years, Dershwitz has testified at the behest of the federal government, and 22 states including Ohio, Florida, Alabama, Kentucky, Maryland, Arizona, and Texas.

Death Penalty Expert Quits to Avoid Professional Scrutiny

The American Board of Anesthesiology forbids its members from contributing to the creation of death penalty procedures, and after a recent miscommunication about his role with the state of Ohio, Dr. Dershwitz felt he was walking too fine a line.  In a press release statement regarding Dershwitz’s involvement in the latest lethal injection challenge, Ohio officials announced that they had consulted with the doctor and determined that the process had been conducted humanely.  The state went on to note that “to allay any remaining concerns” it was increasing the dosages used in the two-drug method – giving appearance that Dershwitz’s expert opinion had factored into the decision.

Although the state later clarified that Dershwitz had nothing to do with the process of changing the lethal injection method, the doctor felt the mistake could jeopardize his status as an anesthesiologist.  Noting that the confusion could happen again should he continue to provide expert witness services in death penalty challenges, Dr. Dershwitz decided to terminate his role as an expert witness working for Ohio, all other states, and the federal government. Following Dershwitz’s abrupt departure as a lethal injection expert witness supporting the two-drug method, states will struggle to replace him as civil rights challenges to the death penalty mount.

Loss of Lethal Injection Expert Leaves Impact

Dr. Dershwitz’s decision will impact lethal injection litigation because he filled a unique niche in the industry as one of the few anesthesiologists willing to testify in support of the two-drug method of lethal injection.  Dr. Mark Heath, a Columbia University anesthesiologist who often testifies against use of lethal injection, said of the difficulties states will have replacing Dershwitz, “I think it’s very unlikely that any other medical experts familiar with these drugs will be willing to support [the two-drug] combination.”

With the lethal injection process coming under increased scrutiny after challenging executions in Ohio, Oklahoma, and Arizona earlier this year, Dr. Dershwitz’s decision to step down as an expert witness leaves a void that states defending their death penalty procedures will not easily fill.