Tag Archives: death penalty expert witness

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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.

Death Penalty Discrimination Expert Witness Receives $1.75 Million

The State of Connecticut has agreed to pay a death penalty expert witness $1.75 million to settle a fee dispute that arose after the unsuccessful lawsuit alleging racial discrimination in inmate executions.  The expert witness bill, originally $3.5 million, represented six years of services in investigating discriminatory processes during capital cases in Connecticut.

Connecticut Inmates Allege Death Penalty Discrimination

Five of Connecticut’s eleven death row inmates filed a discrimination lawsuit alleging that black defendants were more likely to receive a death sentence than whites, particularly if the crime featured a black defendant and a white victim.  Although the death penalty was outlawed in Connecticut in 2012, the eleven inmates already receiving a death sentence were unaffected, and the five plaintiffs sought to have their punishment commuted to life in prison without possibility of parole.

The Connecticut Public Defender’s office took on the task of representing the inmates – which is common practice in prisoner civil rights lawsuits – meaning that all expenses incurred as a result of the trial would be billed to the State. As part of the lawsuit, the Public Defender’s office reached out to Stanford law professor John Donohue III with a request to conduct a study of Connecticut’s death penalty sentencing and sit as an expert witness during the discrimination trial.

Death Penalty Expert Witness Study Suggests Discrimination

Donohue’s work as an expert witness for death row inmates involved a comprehensive study of all 205 death-penalty-eligible cases from 1973 to 2007 and found a difference in charge for black defendants, particularly ones who committed a crime against a white victim.  Donohue’s work seemed to confirm the allegations that black defendants were more likely to receive death penalty sentencing than whites, suggesting that discrimination existed in Connecticut’s capital punishment system.

Donohue was challenged by the State’s Attorney’s expert witness, Stephan Michelson, who works for a research firm, and has expertise in conducting studies and analyzing data.  Over the course of six years, Michelson offered a variety of critiques to Donohue’s work, forcing the plaintiffs’ expert to continually refine his research and data analysis before the case finally went to trial last October.

Judge Dismisses Connecticut Inmates Death Penalty Discrimination Challenge

Last October, Judge Samuel J. Sferrazza issued an opinion in the case that dismissed the plaintiffs’ allegations of racial discrimination in Connecticut death penalty cases.  As part of the ruling, Judge Sferrazza found Dr. Donohue’s work as a plaintiff expert witness ultimately unconvincing to the issue of racial bias influencing death penalty outcomes.  Writing that, “Doctor Donohue’s testimony was a relevant starting point, but a far cry from the proof necessary to establish the invalidity of the death sentence imposed upon the individual petitioners,” Judge Sferrazza determined that Donohue’s analysis fell short of the necessary proof for racial discrimination.

Although the case will continue to the Connecticut Supreme Court, Dr. Donohue submitted the invoices he compiled during his six year service as an expert witness, leaving the Public Defender’s office with a $3.5 million bill that the State was unwilling to pay.

Expert Witness Settles Fee Dispute for $1.75 Million

When Dr. Donohue’s expert witness invoice was first submitted to the Connecticut Public Defender Services Commission, officials refused to remit the full payment of $3.5 million.  After negotiations with Donohue, the commission agreed to pay half the sum, $1.75 million, and requested the state legislature and governor to approve emergency funding to accommodate.  Although the Connecticut Public Defender was unhappy with the process Donohue used in his billing, at no point did anyone allege that he had not done substantial work that was deserving of significant compensation – an opinion that resulted in the $1.75 million settlement.