Tag Archives: forensic expert

Google Search Window

Oregon Court Decides Defendant Should Have Been Allowed to Have Forensic Expert Search His Accuser’s Computer

Google makes a record of all searches that site visitors conduct. A federal law makes those records available to prosecutors but not to the individuals being prosecuted. To assist his defense, the attorney for Thomas Bray made repeated attempts to obtain records of Google searches conducted by Bray’s accuser. In opposition to that request, the prosecution called a police officer as an expert witness. The officer testified that Google did not have the requested records. That testimony was incorrect.

On appeal from Bray’s conviction, the Oregon Court of Appeals characterized the prosecution’s tactics, including the police officer’s “expert” opinion, as “seriously disturbing.” The appellate court decided that the trial court should have granted Bray’s request to have an independent forensic expert search the computer for evidence of Google searches.

Bray’s Prosecution

Thomas Bray was an anesthesiologist. He met a woman (identified in the court decision as “J”) through an internet dating site. They had drinks together and then went to Bray’s apartment. J subsequently accused Bray of sexually assaulting her.

When J arrived home, she sent a text to a friend that said “I think he raped me last night.” She testified that she then conducted internet searches to learn the definition of rape under Oregon law. After completing that research, J called the police and Bray was arrested.

Bray’s lawyer theorized that J searched the internet for evidence of Bray’s wealth before deciding whether it would be profitable to make a false sexual assault claim, followed by a lawsuit. J did, in fact, file a lawsuit against Bray. Bray’s lawyer attempted to obtain J’s search history from Google to determine the content of her searches, but Google refused to honor his subpoena because federal law prohibits the disclosure of electronically stored information.

The federal law contains an exception that allows disclosure to law enforcement agencies. Bray’s attorney asked the court to order the prosecutor to request the search information and to make it available to the defense. The court did so.

The Prosecution’s Expert Testimony

The prosecution took a series of steps to resist the court’s order, none of which were successful. At one point, it claimed that obtaining J’s IP address would be “impractical and expensive,” even though the prosecution already had her IP address. After the court repeatedly ordered the prosecution to request the Google records, the prosecution told the court that it had not tried to do so because it learned that making the request would be “futile.”

To explain its noncompliance with the court order, the prosecution called an officer from the Bend Police Department to testify as an expert witness. The officer told the court that Google did not maintain records of searches for more than 28 days. The officer admitted during cross-examination that he did not base that opinion on anything he learned from Google, but said he heard about the policy by talking to another police officer who claimed to have learned about it from one of Google’s attorneys. The officer did not know the attorney’s name.

During a recess in the hearing, Bray’s attorney searched Google’s website and discovered that it retains search information for 9 months. The judge then chastised the prosecution for offering inaccurate expert testimony and for its deliberate disobedience of the court order. The judge ordered the prosecution to subpoena the data from Google and threatened to hold the district attorney in contempt for the prosecution’s willful circumvention of the court’s discovery order.

Three months after the court first ordered the prosecution to serve Google with a subpoena, the prosecution finally did so. It later advised the court that Google would not release the information without a search warrant. The court eventually concluded that it did not have the power to order the prosecution to apply for a search warrant.

Request for Defense Expert

The defense then subpoenaed J’s computer and asked the court to enter an order turning the computer over to an independent forensic expert who would determine (1) whether the content of the Google searches could be found on the computer and (2) whether and when J erased the hard drive, as she claimed to have done. The trial court refused to do so after ruling that having a forensic expert search J’s computer for evidence of Bray’s innocence would violate J’s right to privacy.

Bray went to trial without the Google information. He was convicted and sentenced to 300 months in prison. Bray appealed.

The Police Officer’s Expert Testimony

The Oregon Court of Appeals lambasted the prosecution for its efforts to resist the court’s discovery order. The court found that the prosecution’s conduct, including reliance on an “expert” who based an opinion on hearsay that he made no attempt to verify, was “seriously disturbing.” The court characterized the prosecution’s defiance of the court’s order as “nothing short of an attack on the judicial system itself.”

The court nevertheless declined to reverse Bray’s conviction due to prosecutorial misconduct because Google would not have provided the records in response to a subpoena even if the prosecution had more promptly obeyed the court’s order. The misconduct was therefore dreadful but not harmful.

The Defense Request for an Independent Expert

On the other hand, the Court of Appeals rejected the prosecution’s argument that J had a statutory right to privacy that was superior to Bray’s constitutional right to compel the production of evidence in his trial. The right to compel the production of relevant evidence is protected by the Sixth Amendment to the United States Constitution. That right overcame any right J may have had to keep the contents of her hard drive a secret.

The court noted that the prosecution’s argument would have greater force if Bray simply wanted the authority to read everything on J’s hard drive. By asking that the hard drive be given to a forensic computer expert who would determine whether the hard drive contained relevant material (and, if the contents were erased, the date on which that happened), the defense took care to protect J’s privacy rights.

The trial court expressed concern that J’s privacy would be invaded because “the forensic guy” would theoretically be able to access everything on her computer. The court of appeals did not share that concern. The appellate court assumed that a forensic expert would obey the trial court’s order and would only search the computer for evidence of Google searches within a specified time frame. Any intrusion into J’s privacy would therefore have been minimal. In addition, the defense agreed to let the court choose the expert to obviate any fear that the expert might give the defense greater access to the data than the court permitted.

In short, the request to have an independent forensic expert conduct a limited search of J’s computer was reasonable. Because the trial judge denied that request without applying appropriate legal standards, Bray’s conviction was vacated and the case was returned to the trial court to appoint an expert and to decide whether a review of the material discovered by the expert would be appropriate.

Blood-Splatter Expert Testimony Challenged in Murder Trial

Blood-Splatter Expert Testimony Challenged in Murder Trial

An Australian blood-splatter expert telephoned the defense attorney in the Pennsylvania murder trial of Jessica Alinsky because he was shocked by the opinions expressed by a state police trooper who was testifying as a forensics expert. Dr. Mark Reynolds knew about the Alinsky case because the trooper based a presentation on the crime scene evidence while attending a blood-splatter training course that Reynolds taught. According to Reynolds, the trooper would have failed the course if he had been graded on that presentation alone.

Unfortunately for Alinsky, the defense only learned of Dr. Reynolds’ opinion after the trial was underway. The defense moved for a mistrial to give Dr. Reynolds, who was in Australia, time to familiarize himself with the case and to testify as an expert witness. After the judge denied that motion, Alinsky was convicted of third degree murder.

Expert Evidence in Jessica Alinsky’s Murder Trial

Matthew Ryan Gailie, a prison guard, was shot in the head soon after he returned home from work. Prosecutors claimed that his girlfriend, Jessica Alinsky, shot him at close range and then manipulated the murder scene to make it appear that he had committed suicide. Alinksy gave multiple explanations of the shooting to the police, attributing it both to an accident and to suicide. In one version, she said she was upstairs when she heard the shot. At other times, she said she was next to Gailie when the gun went off during a struggle. Alinksy did not testify during the trial.

Gailie’s body was found on the living room floor with a gun in his hand. The gun was in Gailie’s left hand, but Gailie was right-handed. The strongest expert evidence against Alinksy came from forensic pathologist Gary Ross, who testified that people who use a gun to commit suicide usually drop the gun.

The trial began with the expert testimony of Trooper John Corrigon. He concluded that a blood soaked bank statement found next to Corrigon’s body had been planted by Alinsky to suggest a motive for the suicide. He did not believe that a bloody handprint on the back of the statement could have been Gailie’s, because Gailie would have been immediately incapacitated by the shot. He also expressed the opinion that the gun was in the wrong position for Gailie to have fired it.

Based on the substantial amount of blood found on the couch, Corrigon testified that the body had been there for some time. He suggested that blood on Gailie’s leg appeared to be “defying gravity,” creating the appearance that Gailie had first fallen on the couch before being rolled to the floor, causing blood to spray onto the floor under the kitchen table.

Corrigon attributed smears of blood on Gailie’s body to Alinsky’s attempt to clean up the evidence. Using a special dye, police also found evidence of bloody female footprints leading to the bathroom, as well as blood in the bathtub that had been cleaned before the police arrived.

Another forensic expert testified that neither Gailie’s nor Alinsky’s hand tested positive for gunshot residue. Both individuals had traces of gunshot residue components on their bodies, but the expert acknowledged that she could not determine who fired the gun based on that evidence.

Reynolds’ Comments

Corrigon used his analysis of blood-spatter evidence in Alinsky’s case when he made a presentation in the course that Reynolds taught. In an email to the defense attorney, Reynolds said that “in almost every instance there was no underpinning scientific support for what he was saying and/or there was a reasonable alternative(s) supportive of self-infliction.”

Reynolds also recalled that Corrigon “made a number of significant concessions and essentially agreed that there was just as much likelihood of it being self-inflicted as it was a homicide.” Those concessions were not reflected in Corrigon’s courtroom testimony.

After the defense became aware that Reynolds had criticized Corrigon’s analysis, the defense recalled Corrigon as a witness. Corrigon admitted that he wrote no report about the professional criticism, but contended that he was not required to do so. The defense contends that Corrigon concealed exculpatory evidence and that the prosecution had a duty to disclose it.

Reynolds also suggested that Corrigon’s conclusions were influenced by other evidence in the case, including Alinsky’s statements. In a telephonic hearing conducted during a break in the trial, Reynolds told the court that a science expert should base conclusions strictly on science. Taking other evidence into account is the jury’s job, not the expert’s.

Grounds For Appeal

The jury took only two hours to find Alinsky guilty of third degree murder and of tampering with evidence. The jury might have come to the same conclusion even without Corrigon’s testimony, given the conflicting statements that Alinksy made to the police and the other evidence that pointed to her guilt.

It is likely, however, that Alinksy will raise at least two grounds on appeal that might result in a new trial. The first is the judge’s decision not to grant a mistrial, which effectively prevented Alinsky from presenting Reynolds’ expert testimony. That testimony might have given the jury a basis for discounting the conclusions drawn by Corrigon.

Alinsky is also likely to argue that Corrigon had a duty to reveal Reynolds’ professional criticism of his analysis and that the prosecution had a duty to disclose that criticism to the defense. Whether either ground for appeal will result in a new trial for Alinksy will probably not be known for more than a year.

Smithsonian Forensic Expert Witness Testifies in Trial of Parents Accused of Causing Infant’s Death

A forensic anthropologist working for the Smithsonian Institution National Museum of Natural History took the stand as a bone expert witness in the murder trial of a Virginia couple accused of killing their seven-month old son and burying his remains in their backyard.  Prosecutors hope to use the disturbing testimony about the condition of the infant’s remains to put the parents behind bars for life as punishment for their extreme child neglect.

Virginia Couple Charged with Death of Infant Son

In 2011, police investigators responding to an alleged burglary found a severely neglected 6-year-old girl in a trailer belonging to Brian and Shannon Gore of Gloucester County, Virginia.  The girl was found naked, emaciated, covered in her own feces, and trapped inside an upside-down crib that served as a makeshift cage.  The trapped child was the Gore’s daughter, and both parents are currently serving 30-year jail sentences after pleading guilty in 2013 to aggravated malicious wounding and child abuse. While building a case against the Gores for the abuse and neglect of their daughter, investigators also found the remains of an infant buried underneath the shed outside of the couple’s home.

A medical examiner in Richmond determined that the baby was a boy at least 7 months old who had been born to the Gores in 2007 and dead by March of 2008.  The medical examiner could not make a determination about cause of death, so prosecutors sent the remains to the Smithsonian team for a complete analysis.  After receiving the autopsy results, prosecutors charged the Gores for killing the child by neglecting him, and called the lead researcher from the Smithsonian as a forensic expert witness to explain how the infant died.

Forensic Expert Witness Points to Evidence of Child Neglect

Dr. Douglas Owsley of the Smithsonian Institution took the stand in the Gore’s murder trial to speak for the seven-month infant who never had a chance at life because of the extreme neglect of his parents.  Dr. Owsley examined the remains of the infant, and testified that it was his opinion that the baby suffered from extreme malnutrition because he was not getting enough to eat.  Although Owsley did not offer a cause of death, his expert testimony suggested that the brittleness of the child’s bones pointed to malnutrition and neglect.

Owsley told jurors that the baby’s bones were thin, fragile, and showing signs of osteoporosis because the body had been forced to rob the skeleton of the nutrients necessary to support the infant’s vital organs.  Owsley could not rule out an illness causing the death, but said that the extreme tooth decay and lack of a birth defect pointed towards malnutrition.  Further, expert forensic analysis by the Smithsonian team revealed that the boy’s skull was flat in the back, which indicated the child had spent extensive time lying on his back without being cared for.  Owsley also testified that the skull had a small fracture because the bone was eroding due to lack of nutrients from food.

Attorneys for the Gores argue that Owsley’s expert testimony is biased against the couple, and based on the treatment of the daughter who was found malnourished and in a cage in the couple’s home.  The defense argued that the couple cared for the child, held the body for days after his death, and even fashioned him a coffin to be buried in.  Arguing that Owsley relied on questionable evidence, the Gore’s lawyer attempted to discredit his expert opinion and convince jurors that there is insufficient evidence to connect the couple to neglect and child abuse.

Expert Witness Testimony in Utah Police Shooting Hearing

A former Utah police detective was cleared of all manslaughter charges this week stemming from a 2012 shooting of an unarmed woman due to insufficient evidence to prosecute.  During a three day hearing last week, prosecutors called forensic and police expert witnesses to argue that Shaun Cowley acted inappropriately when he opened fired during a drug investigation, and should therefore be charged with manslaughter.

Utah Detective Fatally Shoots Unarmed Woman

In 2012, Shaun Cowley, then a detective with Utah’s West Valley county police department, investigated a potential drug deal involving 21-year-old Danielle Willard.  Cowley and his partner, Detective Kevin Salmon, approached Ms. Willard’s vehicle in front of a residence that West Valley PD suspected was used for drug and weapon sales.  According to Cowley’s testimony, as the two officers approached Willard’s car to make contact with her she put a black substance in her mouth, causing him to draw his weapon as a safety measure.  When Willard was uncooperative in opening the door, Cowley returned to the police cruiser for a pry bar to break into the vehicle.  With his back turned, Cowley heard the sound of Ms. Willard’s vehicle accelerating towards him in reverse, which caused him to fire two fatal shots.

Throughout the investigation into Cowley’s use of fatal force, the former detective has maintained that he believed his life, and the life of his partner, were in danger.  Cowley testified to investigators that he had reason to believe Ms. Willard was willing to kill the two officers with her vehicle, causing him to make a split-second decision to defend himself.  Although Salmon was not hit by Willard’s vehicle, Cowley was grazed and suffered a minor knee injury.

Prosecutors sought a charge for 2nd degree felony manslaughter alleging Cowley used unreasonable force against Ms. Willard, and called several forensic and police use-of-force expert witnesses to bolster the case.

Prosecutors Rely on Experts to Prove Excessive Use of Police Force

Last week, the parties presented evidence and witnesses at a preliminary hearing that would determine whether or not Cowley could face charges for 2nd degree manslaughter – a charge that carries up to 15-years in prison if a defendant is convicted.  The judge allowed both sides to submit physical evidence and witness testimony, and prosecutors took full advantage by calling expert witnesses to support the state’s key argument that Cowley was not in danger of being hit by Willard’s car. By showing that the officer was not at risk when he opened fire, prosecutors hoped to convince the judge that Cowley acted inappropriately and could therefore be charged with 2nd degree manslaughter.

Prosecutors first called forensic scientist Michael Haag who analyzed the scene and testified that Cowley was not standing directly behind the car at the time of the incident, casting doubt on the sincerity of his claim that he feared for his life.  Mr. Haag based his expert testimony on the trajectory of the shots that Cowley fired at Willard’s car, arguing that, in his estimation, the bullets did not come from directly behind the vehicle.  Prosecutors argued that the bullet trajectory suggested that Cowley was standing to the side of Ms. Willard’s car, which not only contradicted the defendant’s testimony, but also meant that he was not in danger at the time of the shooting.

To further the argument that Cowley acted inappropriately, prosecutors also called Salt Lake City police Detective Chris Kotrodimos as a police procedure expert witness.  Detective Kotrodimos testified that neither Cowley nor his partner, Kevin Salmon, followed proper procedure during the stop.  By drawing their weapons, Kotrodimos argued, the two police officers had unnecessarily escalated the incident to the point where deadly force was a possible outcome – an unacceptable maneuver given the circumstances.

Defense Team Attacks Prosecution Expert Witnesses

In response, Cowley’s defense attorneys launched an attack on the validity of the prosecution’s expert witness testimony.  Calling Mr. Haag’s forensic analysis a “guess,” defense attorneys forced the prosecution’s expert to concede that the trajectory of the fatal bullet could not be identified with absolute certainty.  Moving on to Detective Kotrodimos, the defense pointed out that he had read Cowley’s file before analyzing the case, a fact that may have clouded his interpretation of the incident and improperly influenced his expert testimony.

Defense attorneys went on to argue that former detective Cowley acted in a span of 2 – 3 seconds with the victim’s car approaching him at a rapid speed, and his reaction was appropriate given the circumstances.  Ultimately, the judge found the prosecution expert witnesses to be insufficient, and agreed with the defense that Shaun Cowley did not use excessive police force in the shooting of Danielle Willard. Mr. Cowley has been cleared of all charges stemming from the incident.