waking the gatekeeper: attacking the state’s expert witnesses

WAKING THE GATEKEEPER:ATTACKING THE STATE’S

EXPERT WITNESSES

THE ALASKA PUBLIC DEFENDER AGENCY2011 Training Conference

Girdwood, Alaska

James K. JenkinsMaloy Jenkins Parker

Boulder, Colorado & Atlanta, Georgiajenkins@mjplawyers.com

WHY WAKING THE GATEKEEPERMATTERS

EXPERT WITNESSES CONVICT OUR CLIENTS

JUNK SCIENCE MURDERS

INNOCENT PEOPLE

THE WILLINGHAMS

THE WILLINGHAM CHILDREN

WILLINGHAM HOMEDECEMBER 23, 1991

STATE DEPUTY FIRE MARSHALMANUEL VASQUEZ

CO-STARRING WITNESS THE STATE

JAMES GRIGSON, FORENSIC PSYCIATRIST:

TODD WILLINGHAM WAS “AN EXTREMELY SEVERE SOCIOPATH” AND WAS “INCURABLE”

TEXAS GOVERNOR RICK PERRYDENIES CLEMANCY

Todd WillinghamJanuary 9, 1968 – February 17, 2004

Todd Willingham February 17, 2004

"I am an innocent man, convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do.”

BARRY SCHECK

GERRY GOLDSTEIN

Criminal Procedure Rule 16(b)(1)(B)

(B) Expert Witnesses. Unless a different date is set by the court, as soon as known and no later than 45 days prior to trial, the prosecutor shall inform the defendant of the names and addresses of any expert witnesses performing work in connection with the case or whom the prosecutor is likely to call at trial. The prosecutor shall also make available for inspection andcopying any reports or written statements of these experts. With respect to each expert whom the prosecution is likely to callat trial, the prosecutor shall also furnish to the defendant a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert's opinion, and the underlying basis of that opinion.

Failure to provide timely disclosure under this rule shall entitle the defendant to a continuance. If the court finds that a continuance is not an adequateremedy under the circumstances of the case, the court may impose other sanctions, including prohibiting the prosecutor from calling the expert at trial or declaring a mistrial.

Nacchio v. United States,555 F.3d 1234 (10th Cir. 2009)

Mr. Nacchio argues that the district court's ruling waspremised upon Rule 16 and that, consequently, it was patentlyerroneous. We disagree. The district court's exclusion ofProfessor Fischel's testimony rested on Daubert grounds.True, the government first framed its challenge to ProfessorFischel's expert testimony as an objection to the sufficiencyof Mr. Nacchio's Rule 16 disclosure. But, by the time the district court ruled to exclude Professor Fischel's testimony, it was clear that the court's principal concern was Daubert

MESSAGE FROM AN APPELLATE LAWYER TO ALL YOU AWESOME

TRIAL LAWYERS OUT THERE:

MAKE A FUCKING OFFER OF PROOF

INVESTIGATE THE STATE’S EXPERT WITNESS

Awesome Website: containing hundreds of transcripts of testimony by forensic experts where defendant was subsequently exonerated by DNA:

http://www.law.virginia.edu/html/librarysite/garrett_exoner

ee.htm 

AWESOME WEBSITE FOR TRANSCRIPTS

http://www.law.virginia.edu/html/librarysite/garrett_exoneree.htm

United States v. Robinson, 44 F.Supp. 1345 (N.D.Ga. 1997)

“If a defendant does not have the basis for the expert’s opinion, there is no way the defendant can effectively cross-examine the expert. It is this issue which goes to th fairness of the trial that the court must always keep in mind in dealing with discovery issues in criminal cases.”

Ratliff v. State, 110 P.2d 982, 985(Alaska App. 2005)

Indeed, at the conclusion of Hammer's testimony, when Judge Weeks asked Ratliff's attorney if she had any argument to present regarding the scientific validity (or lack of validity) of Hammer's analysis, the defense attorney had nothing to say. She simply responded, “Your Honor, as far as whether the general techniques [of shoeprint analysis] are acceptable ornot, I will just let the Court rule on that.”

Dymenstein v. State, 720 P.2d 42, 45(Alaska Appeals 1986)

Dymenstein also argues that Kirk should not have been allowed to offer her opinion concerning N.C.'s credibility. Kirk did give her opinion of N.C.'s credibility numerous times during the sentencing hearing, attempting to explain N.C.’s inconsistent statements and why N.C. took so long to admit all of the sexual abuse she had suffered. She explained that N.C.'s prior statements were consistent with the theory of “progressive admissions.” Dymenstein, however, failed to object to Kirk's opinion of N.C.'s credibility the first time itwas elicited. He objected only once: the second time Kirk said she believed N.C. Later, Dymenstein elicited Kirk's opinion twice again on cross-examination, yet he failed to object to the testimony or to request that it be stricken or disregarded.

WHY IT IS A REALLY GOOD IDEA TO DO A LITTLE RESEARCH ON THE STATE’S EXPERTS

A similar situation was presented to this court in Colgan v. State, 711 P.2d 533, 534–35 (Alaska App.1985). There, the same counselor testified that she believed the complainants: children who said they had been sexually assaulted by the defendant. In Colgan, as in the present case, no timely objection was made. This court analyzed the issue under the plain error rule, Criminal Rule 47(b). We found that, even if inadmissible, the testimony did not substantially prejudice Colgan's rights …

It’s an uphill struggle, folks:

[However, a]n analysis of post‑Daubert decisions demonstrates thatwhereas civil defendants prevail in their Daubert challenges, most of thetime criminal defendants almost always lose their challenges to government proffers. But when the prosecutor challenges a criminal defendant’s expert evidence, the evidence is almost always kept out of the trial. . . .In the first 7 years after Daubert, there were 67 reported federal appellate decisions reviewing defense challenges to prosecution experts. The government prevailed in all but 6, and even among the 6, only 1 resulted in the reversal of a conviction. In contrast, in the 54 cases in which the defense appealed a trial court ruling to exclude the defendant’s expert, the defendant lost in 44 cases. In 7 of the remaining 10, the case was remanded for

a Daubert hearing.

Model Fingerprint Cross-ExaminationJennifer Friedman

Los Angeles County Public Defender

Background reading materials for cross-examinationI. EducationII. TrainingIII. AccreditationIV. CertificationV. L.A. Police Department Audit and Errors

VI. Fingerprint BasicsVII.Work of ExaminerVIII.Contextual or Observer BiasIX. Bradford Mayfield CaseX. AFIS cases (computer matching)XI. NAS Report -- February 2009XII.SubjectivityXIII.This Print

XIII. DocumentationXIV. IAI ResolutionXV. Summary

Art vs. Science InstructionUnited States v. Starzecpyzel, 880 F. Supp. 1027,

1050-51 (S.D.N.Y. 1995)

The Court has studied the nature of the skill claimed by forensic documentexaminers, and finds it to be closer to a practical skill, such as piloting a vessel, than to a scientific skill, such as that which might be developed by a chemist or aphysicist. That is, although forensic document examiners may work in “laboratories,” and may rely on textbooks with titles like “The Scientific Examination of Documents,” forensic document examiners are not scientists – theyare more like artisans, that is, skilled craftsmen.

THE NAS REPORT

National Research Council, National Academy of Sciences

Congressional Funding Related to DNA Exonerations

OVERALL CONCLUSIONS

Other than DNA, nearly all forensic individualization “sciences” rest on inadequate scientific foundations.

OBSERVER EFFECTS

The tendency of the observer’s preconceptions and motives to influence perceptions and/or interpretation of evidence.Also known as: context effects; examiner bias; confirmation bias.

“THE FAILURE TO ADDRESS OBSERVER EFFECTS IS THE HALLMARK OF JUNK

SCIENCE.”

JUNK SCIENCE CONVICTS INNOCENT CLIENTS

THE BRADFORD MAYFIELD CASE

“In March 2004, the Federal Bureau of Investigation (FBI) Laboratories identified Brandon Mayfield, an Oregon attorney, as the source of a latent fingerprint recovered from a plastic bag containing explosive detonators found near the site of commuter train bombings in Madrid, Spain that killed 200 people and injured almost 1,400 others. Based primarily on the FBI laboratory’s conclusion, the FBI arrested Mayfield as a material witness in May 2004. Approximately 2 weeks after Mayfield’s arrest, the Spanish Police (SNP) informed the FBI that it had identified an Algerian national, Ouhnaw Doud, as the source of the latent fingerprint.

The FBI subsequently examined Daoud’s fingerprints and withdrew its identification of Mayfield, and Mayfield was released from custody after being held for 14 days.

The FBI issued a formal apology to Mayfield and his family.