Tag: expert witnesses

Criminal LawExpert WitnessForensic Psychiatry

Golden State Killer, Part 2: Forensic Psychiatry and the Rapist and Serial Killer

As readers of Part 1 are aware, I’m following this case closely due to the connection to our local community. If you are anything like me, you wonder how someone could allegedly commit so many heinous crimes? Then, after a decade of committing dozens of rapes and multiple murders, the suspect ends his reign of terror (at least as far as we know).

What We Know:

From 1976 to 1986, a violent criminal struck fear throughout the State of California. Twelve murders, 45 or more rapes, and more than 100 hundred residential burglaries are attributed to one man. Authorities have indicated the suspect was meticulous in the planning of his crimes, which started as burglaries and escalated into violent offenses.

The crime spree spanned Northern and Southern California, including Sacramento, San Joaquin, Orange, Ventura, and Contra Costa Counties. The suspect was known by many names, such as Visalia Ransacker, Diamond Knot Killer, Original Night Stalker, East Area Rapist, and more recently the Golden State Killer. It wasn’t until a couple of years ago that DNA evidence connected the dots of all the crimes and detectives realized the crimes were committed by the same individual.

An arrest was made in late April. After using an innovative investigative technique (submitting a DNA profile to a free online ancestry database), detectives identified James Joseph DeAngelo, Jr., a former police officer and mechanic living in Citrus Heights, California.

What Makes Someone Commit Such Crimes?

Violent crimes are difficult for most of us to understand. Certainly we’ve all had emotional moments that could have resulted in a terrible decision had we lost self-control or been otherwise unbalanced. Although I don’t condone violence, I’ll admit reading about crimes where the violent result was understandable. Not acceptable, but understandable. For example, a parent acting violently towards someone who harmed his or her child is the type of violent behavior I can understand.

How do we reconcile vengeful, “loss of control,” or “heat of passion,” violence with violence that seems to be done for pleasure? Why does an offender experience joy from inflicting pain and fear upon a victim? What causes a person to lead a life of rape and murder?

There are so many questions on this topic. Does a lack of understanding make us more fearful? Does the human condition require a rational explanation for irrational acts we cannot fathom?

A little information before we continue:

For this portion of our series on the Golden State Killer, I sought input from a forensic psychiatry expert witness. Part 3 of this series will include input from one or more forensic psychologists.

It is important for readers to understand the difference between psychiatry and psychology. Allow me to differentiate between the two. For any psychologists and psychiatrists reading this post, I apologize for the very simplified descriptions of your professions, but we’ve had lawyers contact us looking for an expert, unaware of the distinction.

A psychiatrist is a medical doctor (MD, DO) capable of prescribing medications to address mental, emotional, and behavioral disorders. They generally focus on diagnosis and treatment. A psychologist is not a medical doctor. Psychology-based doctoral degrees are usually Ph.D or Psy.D. They generally are unable to prescribe medication and focus more on helping patients to effectively cope with mental, emotional, or behavioral disorders via psychotherapy (non-medical treatment). Again, this is an oversimplification of two highly complex professions.

Today, we will be addressing the Golden State Killer with some input from Experts.com member and forensic psychiatry expert, Dr. Stephen M. Raffle.

Stephen M. Raffle, MD – Forensic Psychiatry Expert Witness:

Dr. Stephen Raffle is double board-certified in Psychiatry and Forensic Psychiatry. He has over 40 years of experience as a clinical and forensic psychiatrist offering his expert opinion in federal and state jurisdictions nationwide. Dr. Raffle has conducted over 5,000 psychiatric assessments in his career and was a professor of psychiatry at UCSF Medical Center for 20 years. You can learn more about Dr. Raffle by visiting his website: psychiatristexpertwitness.com.

Nick: Are there common psychological attributes among serial killers?

Dr. Raffle: A common feature is a lack of empathy with victims. Most serial killers ​(with few exceptions) understand they are committing a crime because they take care not to be caught. Antisocial Personality Disorder and Borderline Personality Disorder commonly are present. Sadomasochism is also a common feature. Depending on the shared characteristics of the victims, the serial killer may have problems with impotence, paranoia, or sexual perversions which cannot otherwise be satisfied. Paranoid Schizophrenia is a common psychiatric disorder but not universal. A diagnosis of paranoid schizophrenia, in and of itself, does not necessarily justify a finding of insanity, because “insanity” is a legal construct, not a psychiatric diagnosis.

Nick: If so, what types of psychological attributes are common among serial killers?

Dr. Raffle: Refer to my response in No. 1 above. In addition, the psychiatric disorders, as diagnostic entities, may include:  ​Sadomasochistic Personality Disorder, Necrophilia, Paranoid Schizophrenia, Borderline Personality Disorder, Antisocial Personality Disorder, or other psychotic disorders.

Nick: Does a serial rapist or serial killer experience joy or pleasure from tormenting and harming their victims?

Dr. Raffle: Yes.

Nick: If so, why is it they experience joy or pleasure from inflicting pain or committing murder?

Dr. Raffle: In each instance, the torture is combined with sexual arousal (which is commonly not acknowledged by the perpetrator), leading to an emotional discharge, often overtly sexual in nature​ upon the death of the victim. Following the murder, serial killers have recurrent fantasies about various aspects of the ritual associated with the killing, which brings satisfaction. Over time, the recurrent fantasies become progressively less satisfying, (i.e., “old news”) resulting in a need for new fantasy material. Hence, the serial nature of the murders.

Nick: Can forensic psychiatry explain how one becomes a serial killer? Or, what causes one to become a serial killer?

Dr. Raffle: The prediction of violence in a specific individual is difficult, given the extremely rare occurrence of serial killers. Certain risk factors are identifiable for predisposing an individual to violence; however, the constellation of symptoms, behaviors, life experiences and genetic makeup makes it impossible to identify serial killers before the fact or even to explain how one “becomes a serial killer.” That said, a propensity toward violence most commonly occurs in individuals who have a prior history of violence, premeditated violence, paranoia, a strong impulse for revenge, drug and/or alcohol abuse, Antisocial Personality Disorder, Borderline Personality Disorder, the experience of repeated childhood sexual abuse and/or physical abuse, obsessional thinking, unresolved gender identity issues, sadomasochism, and conflicts about dominance/submission. The causes to become a serial killer commonly include prior sexual fantasies, coupled with torture ending in murder. The shift from fantasy to reality may occur following a personal crisis and need for greater satisfaction than is provided by the fantasy. Once the taboo of murder is breached, the serial killer is freer to convert subsequent emotional needs into murderous actions. Most serial killers have a ritualistic aspect to their killing which reflects their unconscious needs and conflicts, such as killing prostitutes, homosexuals, homeless people, or other such categories. The commonality of the victims usually is based on childhood experiences, parental attitudes, and psychosexual conflicts.

Nick: Are there common childhood development (characteristics or circumstances) issues among serial killers?

Dr. Raffle: The most common childhood development characteristics and circumstances include parental neglect, inconsistent parental behaviors, resulting in excessive, unpredictable punishment​ unrelated to wrongdoing, physical or sexual abuse by a parent or close relative, extreme religious beliefs, isolative behaviors as a child, poor impulse control, conduct disorder during childhood, victimization of various sorts during childhood, to name several.

Nick: News reports indicate the Golden State Killer was active between 1976 and 1986. Is it likely he stopped committing these crimes?

Dr. Raffle: On a probability basis, he didn’t stop committing his crimes after 1986. The nature of his fantasies may have changed over time such that subsequent murders were dissimilar enough from the earlier murders that they don’t share enough commonality to identify him as the perpetrator.

Nick: Is it uncommon for a serial killer to stop committing crimes?

Dr. Raffle: It is common for a serial killer to continue committing crimes.

Nick: Are there items you think the public should know about forensic psychiatry, as it relates to the Golden State Killer, that I have not covered in the above questions?

Dr. Raffle:

a) Serial murder is an extremely uncommon occurrence. It is extremely difficult to prospectively predict a particular person will become a serial killer, irrespective of the forensic psychiatrist’s ability.

b) The ritualistic behaviors of a serial killer do not define insanity or even suggest it​. Serial killers as a group are cunning individuals who seek not to be caught, who do not confess, and who obtain considerable self-satisfaction at the expense of their victims.

c) Serial killers as a group do not understand the intrinsic causes of their behavior and are extremely unlikely to be cured of their obsessional murdering. As the practice of psychiatry now exists, it is unreasonable to expect successful treatment of a serial killer.

d) The FBI Behavioral Studies Unit has interviewed and analyzed all of the serial killers who have been brought to justice. Certain statistical profiles exist which assist law enforcement to “profile” a serial killer based upon the victim type and associated rituals. Roy Hazelwood headed the unit for approximately 20 years and probably knows more about serial murderers than anyone else. His work has been instrumental in creating “profilers.”

e) The psychological makeup of serial killers is different from mass murderers. Serial killers who kill by sniping random people or cars are psychologically more similar to the mass murderer than the serial killer because they usually snipe more than one person during a shooting episode.

f) Contract killers are not serial killers. The mentality of a paid assassin is essentially that of an antisocial ​person who does not empathize with his victims and is therefore comfortable earning his or her living killing others. The obsessional quality or ritualistic behavior of the serial killer is not shared with the assassin. Their only common ground is they have killed more than once. The difference is the assassin is told whom to kill and is paid for it; whereas the serial murderer chooses his victims and engages in other behaviors in addition to a murder which satisfies unconscious needs. Conceptually, as serial murderers go, the assassin is “professional” and the serial murderer is a “hobbyist.”

Stay Tuned:

A huge thank you to Dr. Raffle for his very thorough insight into the mind of the Golden State Killer. Next week we’ll be bringing you more insights on the psychological nature of this perpetrator with input from some of our forensic psychology expert witnesses.

 

 

 

Criminal JusticeCriminal LawForensic DNA

Golden State Killer, Part 1: Experts Explain Forensic DNA Evidence

This marks the first blog post I’ve written on a local event of national concern, the arrest of the Golden State Killer. The subject matter is sensitive for many involved, as such I aim to treat the topic with respect. There are significant issues related to the use of expert witnesses in a matter of this magnitude (DNA, ballistics, crime scene investigation and reconstruction, forensic psychology, forensic psychiatry, and more), so I have opted to address those issues with the input of appropriate experts.

In the week and a half since the arrest of suspected Golden State Killer, Joseph James DeAngelo, Jr., those of us in Northern California have been inundated with news reports about the crimes attributed to this prolific serial rapist and murderer who lived less than an hours drive from the Experts.com corporate office.

Prior to the arrest, I only knew bits and pieces about the history of the Golden State Killer (AKA: East Area Rapist, Original Night Stalker, Visalia Ransacker). Little did I know that several of the attacks (rapes) happened in my hometown of Stockton, California, putting the city and San Joaquin County on edge in late 1977 to early 1978. The Stockton attacks took place before and after many similar attacks in neighboring Sacramento and Stanislaus Counties, so the entire Central Valley was nervous. Attacks in Stockton apparently resulted in my parents installing their first alarm system.

How did the police locate the suspect?

The Sacramento Bee, has published many articles on the subject since the story first broke at the end of April. They have done some incredibly thorough reporting and I have used their reporting as a guide to writing this article.

It seems investigators had DNA samples from rape victims for decades. The only problem was the DNA samples did not match any of the DNA in criminal databases maintained by law enforcement. This means the suspect had never been caught for any crime and thus his DNA had never been submitted to one of the criminal DNA databases.

Following up on the Golden State Killer cold case, investigators decided to use an open-source genealogy database called GEDmatch. This is similar to the paid services of Ancestry.com and 23andMe, only it is mostly free to the public. Once the DNA profile was uploaded, investigators discovered a pool of potential candidates or relatives with similar genes. From there, they were able to eliminate suspects due to age, sex, location, etc. Eventually, they filtered down to the only suspect who made sense: Joseph James DeAngelo, Jr. After surveilling the suspect, DNA samples were obtained from items he discarded. Investigators then compared those samples to the Golden State Killer DNA. After a several attempts, detectives discovered a solid match and arrested DeAngelo.

DNA evidence is complicated, so I reached out to several of our members to discuss the DNA evidence involved in this case. Two Experts.com members responded to my questions for the first portion of this series on forensics.

DNA

Suzanna Ryan – Forensic Serology & DNA Expert Witness:

Blog readers may remember a really fun and informative live interview I did with forensic serology and DNA expert, Suzanna Ryan. She provided live and recorded viewers with some fascinating information on forensic DNA analysis. Naturally,  I reached out to her for input on the Golden State Killer case.

It is important for readers to remember we are only commenting on publicly available information from news reports. As in previous articles, I have outlined my questions and Ms. Ryan’s answers below. To learn more about her practice, please visit her website: ryanforensicdna.com.

Questions:

Nick: What are the types/forms of DNA evidence law enforcement is likely to have retrieved from Golden State Killer crime scenes?

Ms. Ryan: I am not sure I know enough about the cases to say for sure, but it sounds like at least some of the cases involved rape, so it is likely that in the mid-70s and mid-80s the perpetrator was not being very careful about not leaving his DNA – in the form of semen – behind.  There is a lot of DNA in semen and it is likely that a clean, single source profile was able to be obtained from those type of samples.  That is probably how the cases were linked to each other as well.

Nick: Is there a type/form of DNA that is more compelling or stronger evidence than other types?

Ms. Ryan: Body fluid DNA is typically,  in my view, more compelling evidence because it is more difficult to argue that the DNA arrived there inadvertently through some sort of secondary transfer. This is especially true if the perpetrator and victim did not know each other and there would be no reason for the perpetrator’s blood to be in the victim’s home, for example, or his semen in her body.

Nick: According to news reports, the last known Golden State Killer crime took place in 1986. Does DNA evidence degrade over time?

Ms. Ryan: DNA evidence can degrade over time, but if it is properly stored (i.e. in paper, not plastic and in a temperature controlled environment like an indoor property room – NOT in an attic, garage, or non-temperature controlled shed of some sort) then DNA profiles can be obtained many years later.  Heat, humidity, and moisture are all very detrimental to DNA evidence.

Nick: How does law enforcement maintain DNA evidence over decades?

Ms. Ryan: Once a profile is obtained from an item of evidence, that profile is stored electronically.  However, evidence that has not been tested or is part of an unsolved case will be stored in police evidence rooms, categorized by case number.  It should remain sealed and in paper bags, manila envelopes, or boxes.

Nick: From public reports, we know law enforcement has found a DNA match. What type of evidence will the prosecution have to present at trial to prove the DNA belongs to the suspect?

Ms. Ryan: I don’t know the answer to this.  Likely semen DNA evidence.  Possibly blood or even touch DNA at some of the crime scenes if re-testing or additional testing of evidence is conducted.

Nick: Are there arguments the defense can use to claim the DNA is not from the suspect?

Ms. Ryan: I’m sure there are.  No way to answer this unless the case files are reviewed. However, when you have multiple cases linked together combined with a database-type match like this (in other words, he wasn’t a suspect before but was found through searching one type of database or another) it becomes more difficult to argue that there is some sort of laboratory error or cross-contamination in the lab.

Nick: Are there items you think the public should know about DNA evidence that I have not covered in the above questions?

Ms. Ryan: You didn’t really ask about the whole forensic genealogy aspect to this.  That the investigators used a private lab (not sure who, but I suspect Parabon) to do the same type of DNA typing (SNPs) that ancestry DNA labs do on an evidence sample from the case.  That profile was then uploaded to one (and frankly, probably more than one) DNA sharing site to search for a possible relative.  There is also some news about some other guy in a nursing home being a suspect, etc.  There was apparently similarities in his DNA profile to the GSK, so they got a warrant for his DNA, did a comparison, and found he was excluded.  That doesn’t mean they “got the wrong guy”, etc. that is being played up in the media.  It means that he was a possible suspect because of his DNA, but he was also cleared, because of his DNA.  The police probably followed around and surreptitiously collected DNA from a LOT of guys before they found DeAngelo.  That’s kind of how this type of search goes.  It is similar to, but not the same as familial DNA searching.  That is something the public and media don’t understand.  Familial searching uses the CODIS database to look for near matches.  It works because 46% of offenders have a brother or father who is also incarcerated.

George Schiro – DNA Technical Leader & Forensic Science Expert Witness:

George Schiro is the Lab Director of Scales Biological Laboratory in Brandon, Mississippi. His duties include incorporating DNA Advisory Board (DAB) standards, accountability for the technical operations of the lab, conducting DNA analysis in casework, DNA research, forensic science training, and crime scene investigation. I posed the same questions to Mr. Schiro that were presented to Ms. Ryan. You can learn more about him by visiting his website: forensicscienceresources.com.

Questions:

Nick: What are the types/forms of DNA evidence law enforcement is likely to have retrieved from Golden State Killer crime scenes?

Mr. Schiro: I know that seminal fluid was collected from at least some the crime scenes, and the GSK may have injured himself at some point during one of the many attacks and left blood behind at one or more of the scenes. These are the two most likely sources of DNA found at the scenes. From this biological evidence, they would have done autosomal short tandem repeat (STR) DNA testing on the stains. This generated DNA profiles that the crime labs were able to upload to the Combined DNA Index System (CODIS) DNA database. This was how they originally connected the East Area Rapist (EAR) with the Original Night Stalker (ONS) and knew they were committed by a single individual. The profile in CODIS did not hit on any identifiable individual in the database. A familial search was also conducted at the state level (SDIS) to look for any potential relatives in the CODIS database. No potential relatives were found in the database. They may have also conducted Y chromosome STR (Y STR) DNA analysis on the samples in an effort to find any potential relatives. It is my understanding that they found a rare genetic marker in one of the samples and used a publicly available genealogy database to trace the marker from family members in the database back to Joseph James DeAngelo. They then used a discarded item from Mr. DeAngelo to compare his autosomal STR profile to that of the GSK and they matched the profiles.

Nick: Is there a type/form of DNA that is more compelling or stronger evidence than other types?

Mr. Schiro: Autosomal STR DNA analysis is currently the strongest type of DNA evidence because it remains consistent throughout a person’s life; with a few, rare exceptions, the DNA is the same throughout the individual’s body; the results are highly reproducible; the methods are standardized; and this type of DNA is highly individualizing. Theoretically, enough autosomal STRs are used to distinguish everyone on the planet with the exception of identical twins. Eventually, next generation sequencing (NGS) will probably supplement, and, perhaps, eventually replace autosomal STR DNA analysis as the crime lab tool of choice.

Nick: According to news reports, the last known Golden State Killer crime took place in 1986. Does DNA evidence degrade over time?

Mr. Schiro: DNA will degrade over time if it is exposed to heat, humidity, or ultraviolet (UV) light; however, if it is air-dried when collected and stored at room temperature under climate controlled conditions to reduce humidity, then it can last for decades, perhaps centuries. DNA has been obtained from mummies, so it is a very stable molecule under the right conditions.

Nick: How does law enforcement maintain DNA evidence over decades?

Mr. Schiro: Law enforcement maintains DNA evidence by air drying it upon collection, then keeping it stored in an air-conditioned, secure location where the temperature and humidity can be regulated.

Nick: From public reports, we know law enforcement has found a DNA match. What type of evidence will the prosecution have to present at trial to prove the DNA belongs to the suspect?

Mr. Schiro: They will have to show that the evidence originated from the crime scenes. They can do this by introducing crime scene photographs, videos, investigator notes, and testimony of the people who collected the evidence. They will then have to show that the evidence was stored and preserved properly; and the evidence chain of custody was maintained. They will have to show that the items were tested using validated techniques and that a report was produced. The report can be introduced at trial and the DNA analyst can testify to the tests and results. They will then have to show that a sample was collected from Joseph James DeAngelo and all of the same steps were taken with his sample. Finally, they will have to show how the DNA samples from the crime scenes match the DNA sample from Mr. DeAngelo.

Nick: Are there arguments the defense can use to claim the DNA is not from the suspect?

Mr. Schiro: In a cold case DNA hit, such as this one, and because the DNA is from seminal fluid and, possibly, blood, it will be very difficult to argue that Mr. DeAngelo is not the source of the DNA. Arguments of potential sample switches, contamination, and secondary transfer of DNA will not apply to this kind of case. About the only avenues left to the defense are to challenge the legality of the evidence collection and the legality of obtaining Mr. DeAngelo’s reference sample. They can also argue that Mr. DeAngelo has an identical twin who is the actual killer/rapist, but this might not be a realistic defense.

Nick: Are there items you think the public should know about DNA evidence that I have not covered in the above questions?

Mr. Schiro: No, I think you covered it pretty well. Thanks.

How about some further input:

My friend and colleague, Tamara McCormic of LegalForms.Today, is a legal advocate based in Orange County, California. Tamara works for the Orange County Public Defender in their exoneration unit. She is very knowledgeable about the use of DNA evidence in violent crimes. As several of the alleged murders took place in Orange County, this matter hits close to home for her as well.

I’ve asked Tamara to share her thoughts on the Golden State Killer matter based on her experience in homicide exoneration. A link to her blog post will be made available shortly.

 

EnergyEngineeringExpert Witness

Expert Witnesses and North Korea? They Will Be Used to Verify Closure of Nuclear Test Site

Were you as surprised as I was to see the phrase “expert witnesses” in the same sentence as North, Korea? When I got back to the office this morning after a several days in New Orleans at the ABA GPSolo / GLSA Conference, I went through my emails, including my Google Alerts for “expert witness” and “expert witnesses.” One article, in particular, caught my attention. A post from ITV News titled, “North Korea ‘to close nuclear site’ in May in front of international expert witnesses,” got me thinking about what type of experts might be used in to verify the closure of a nuclear site. I understand that this probably means Kim Jong-Un will invite experts to witness the closure and is not likely referring to expert witnesses in the traditional-US-legal-system-sense.

Of course this article interested me because it brought together my employment and my undergraduate studies in Political Science / International Relations. In fact, the Dean of Political Science at my college specialized in the politics of the Korean Peninsula. I had taken several of his courses and respected him immensely, so this story really intrigued me.

Now, I do recall the verification processes that went along with the lead up to the war in Iraq. There were efforts by the International Atomic Energy Agency to verify whether or not Iraq had weapons of mass destruction, including nuclear weapons. It would not be a surprise to hear that the IAEA were involved in verifying the closure of a North Korean nuclear site. I do not want to get caught up on the particular agency taking part in this inspection. Rather, I am interested in the knowledge and specialization of the experts who may be asked to witness the closure.

According to the story from ITV News, “Kim Jong-un announced he would invite representatives from both South Korea and the US to witness the closure as the two Korean leaders met for a historic summit on Friday.”  What type of experts will be brought to witness the closure? How will we know the nuclear site is closed? Who verifies that it has been closed? What type of expertise is needed to verify the closure? These, and other questions were posed to some of our Nuclear Energy expert witnesses.

Before getting into the nuclear energy experts, I should also say that the above article really has to do with nuclear weapons testing, rather than the production of nuclear material. Our experts are more likely familiar with the production of nuclear material and that is what I have focused on as that will likely be a future step in negotiations.

Input from a Nuclear / Mechanical Engineering Expert Witness:

I reached out to one of our members based in the UK to get some answers on this subject. Geoffrey Beresford Hartwell is a Chartered Engineer who specialized in aerospace and nuclear energy early in his career. You can learn more about his current practice by visiting his website: arbitrator-engineer-gbh.co.uk. For ease of reading, I have distinguished between the questions I asked and the answers provided by Mr. Hartwell.

Nick: What type of experts would be used to confirm the nuclear testing facility is shut down?

Mr. Hartwell: I would suggest nuclear engineers or health physicists equipped with Geiger Counters and supervised by the International Atomic Energy Agency (IAEA). They should be able to detect remaining radioactive traces by their emission of alpha particles, beta particles or gamma rays.  They must test in apparently empty containers.

Nick: Would someone with your expertise be asked to participate?

Mr. Hartwell: I imagine so but my membership of the Institution of Nuclear Engineers lapsed after some health issues.

Nick: What is the process for closing a nuclear facility?

Mr. Hartwell:

A) Remove all active material to long-term storage approved by IAEA.  In contentious circumstances that should involve processing at a facility in Britain, USA or France.  I do not know if a facility is Russia would be appropriate.

B) Clean to IAEA requirements.  Dismantle plant and equipment.

C) After safety inspection (see Q.1) destroy nuclear specific buildings.  Reactor buildings, if any, may need special attention – insertion of boron absorber; casing in concrete; fencing.

Nick: How long might it take to close a nuclear facility?

Mr. Hartwell: Weeks, possibly months, perhaps many months.

Nick: Can a nuclear facility be reopened with relative ease?

Mr. Hartwell: Yes, if nuclear-specific buildings are left intact.

Nick: To prevent future activity at a nuclear facility, wouldn’t there have to be some action to dismantle a facility?

Mr. Hartwell: Yes.

Nick: What would it take to make sure that a nuclear facility is shut down and remains inactive in the future?

Mr. Hartwell: Demolish Nuclear-specific equipment and buildings – under IAEA supervision.

Nick: What items does the public need to know about closing a nuclear site?

Mr. Hartwell: Report of IAEA; open visits to site.

Nick: Any other comments you’d like to add. Important items that I have not covered in the above questions…

Mr. Hartwell: Disposal of materials is difficult; some remains radioactive for centuries.  Removing some materials – such as, from some reactors, hot liquid sodium which cannot be in contact with moisture – can be dangerous.

Well there you have it. Geopolitical affairs are taking place all around us. We get to wait and see what will happen with not only the nuclear testing site, but other nuclear production sites in North Korea. If another story presents itself in a way that I can write about it, I will.

I’d like to say I’m waiting for comment from Kim Jong-Un for this article, but his people are not returning my phone calls. I think they blocked my number.

 

 

 

 

Criminal JusticeCriminal LawExpert Witnesslegaltech

Fingerprints Lifted from Social Media Photo: Expert Evidence and Impact on Criminal Defense

Friday morning, I read a really interesting article from the FindLaw Technologist blog (their legal technology blog). The headline grabbed my attention because it was about drug dealers’ fingerprints being lifted from a photo on social media application, WhatsApp. This was news to me. I had no idea law enforcement could obtain digital fingerprints or that they could be used for an arrest. In hindsight, it seems perfectly reasonable that fingerprints could be obtained this way because the cameras in our cell phones are so advanced.

Probably, like many laypeople, I thought law enforcement had to access latent fingerprints left on a physical object (doorknob, weapon, cell phone, etc.). Based on my years of watching police procedural television shows and documentaries, I assumed the fingerprints had to be dusted by an evidence technician, input to a database, and then compared to other prints in the database. Today, however, I discovered that’s not the only way to do it.

As the Findlaw article explained, “Law enforcement arrested members of a drug ring using fingerprints on a cell phone photograph. Investigators didn’t even need the suspects’ cell phone because the photo was posted on the messaging application, WhatsApp.” The photo showed a male hand holding a bag of drugs. The agency’s forensics team uploaded the photo to a fingerprint data base and they found a match. The article specifically states the officers “acting on other information” located and arrested the man.

My assumption was the officers needed additional evidence in order to make an arrest.  Authorities can likely use the image as an investigative lead and then they have to go find additional evidence to establish probable cause for an arrest.

Alas, these were only my assumptions. It’s been a long time since I spent any time on criminal procedure. As such, I have asked for some input from Walter M. Reaves, Esq. Walter is a friend and colleague I’ve met through the LegalMinds Mastermind Group. He is a criminal defense attorney located in Waco, Texas. To find more about his practice, visit waco-criminal-attorney.com.

Input from Criminal Defense Attorney Walter Reaves:

Walter jumped on the questions I asked and elaborated on the entire concept of using digital and social media photos. Here is what he said:

“Given the way cell phones have taken control of all our lives, it’s not surprising that they are being used as evidence in criminal cases. For several years, the police have been obtaining cell tower location to place a suspect (or at least their phone) in a certain location. Evidence found on cell phones has also been used – for some reason, dope dealers seem to like taking pictures with their stash. And of course, there’s always text messages.

A new technique may be lifting fingerprints from phones. The process would utilize a picture on the phone of someone’s hand and fingers, and attempt to match that like you would a latent print developed at a crime scene. The process may be no different from what is being done now. Latent prints are placed on a card, and pictures are taken. The digital photos are what are used for comparison.

If a fingerprint on a cell phone is used, you can expect challenges from defense lawyers. The prosecutor will have to convince the court the process for making the comparison is reliable, which may be a problem.

For starters, there could be problems with manipulating the photos in order to get something to use for comparison. The photos will probably need to be enhanced in some way, and you can expect defense lawyers to challenge the way that is done. Some adjustment will have to be made for the photo itself, since no camera produces an exact representation of what it is capturing. Establishing the admissibility of the photo of the fingerprint will therefore have to be the first hurdle the State will have to meet.

Even if the State can establish the identification is reliable, I seriously doubt this is going to be a common practice. I can’t imagine many situations where it would be relevant. Maybe if someone is holding dope, and all you can see is their hand, the fingerprint could be used to establish possession. I can’t think of many other situations though. In most cases, you would think if a picture is being taken, you could identify who was in the picture. You also might have problems with identifying location, and time, if that’s important.

There will be an even bigger problem when you are trying to use the photograph to prove possession of a controlled substance. The problem is proving what the substance is. If you don’t have it, there’s no way to test; it could be baking soda just as easily as it could be cocaine.

So, it’s an interesting concept, but don’t expect it be coming to a courtroom near you anytime soon.”

Based on reading this information from Walter, I stand by my contention this is an investigative tool for law enforcement. However, such images are unlikely to be used as evidence in court. It seems there will be problems with relevance, reliability, and authenticity. These hurdles may in time be overcome as technology advances.

Input from Photographic Evidence Expert Witness Dr. James Ebert:

For a more in-depth understanding of this practice, I reached out to Experts.com member and expert witness Dr. James Ebert. Dr. Ebert is a forensic photogrammetrist who is regularly called to interpret and testify about photographic and mapped evidence in civil and criminal matters. You can learn more about Dr. Ebert’s expertise and practice by visiting his website ebert.com.

Dr. Ebert’s comments left me feeling behind the times when I heard about the use of digital photos as a law enforcement tool. Here is what he had to say:

“It has been widely known and discussed on the web for a decade or more that identifiable fingerprints can be recovered from photographs for good or bad purposes, given that the photos are of sufficient resolution, lighting, focus, and that enough of the fingerprint can be seen to allow a match to be attempted.  Faces published on the internet can, of course, also be identified through photo matching services like TinEye reverse image search, or facial recognition software.  Both fingerprints and faces can, for instance, be run on the FBI’s new Next Generation Identification system by law enforcement agencies around the country.  This does not insure false positive results as are common with all automated fingerprint or facial identifications.  I have never attempted to make identifications of fingerprints in my practice as a forensic photogrammetrist, but are certainly possible and they should be just as reliable as are those done with fingerprint or facial data collected in other ways.  I am often, however, called upon to do facial identifications from photographic evidence. Whether such fingerprints and facial identification are ethical clearly depends on whether they are done for ethical purposes.  Identification of possible criminals from fingerprints by law enforcement is an example of a good use of technologies, and if done for purposes like hacking or harassment it’s not.”

Based on Dr. Ebert’s comments, it appears this practice has been considered and possibly utilized for some time. As Dr. Ebert mentioned, there is potential for abuse in matters of hacking and harassment. I cannot speak for Walter, but I imagine he would think there is potential for abuse by law enforcement as well.

Technology is changing so rapidly that it is difficult to keep up with all the advancements. What we’re doing with this blog is trying to discover how technology impacts the criminal justice system. If you have any suggestions for future  posts on technological advancements in criminal or civil justice, please comment below.

 

 

Accident Investigation & ReconstructionForensic Accident InvestigationTransportation

Southwest Airlines Engine Failure: Aviation Accident Investigation

If you are anything like me, you have constant access to your Twitter feed. Besides the fact that it’s a platform for developing relationships with professionals across the world, it is my source for news. I use it to find out what is going on in the justice system, legal technology, and world events. Today, my feed erupted with news of a Southwest Airlines emergency landing at Philadelphia International Airport. If you use Twitter, your feed probably reacted similarly.

According to an article from CBS Channel 3 in Philadelphia, the airliner made a successful emergency landing, “after an engine blew out as the plane left LaGuardia Airport in New York on Tuesday morning.”

It seems that after the explosion in the engine, some shrapnel damaged one of the passenger windows causing the plane to depressurize. Early reports describe one passenger as being partially sucked out of the plane at the broken window. A horrifically frightening event for certain. Luckily, the plane made a safe emergency landing. It appears several passengers were injured and one life was lost.

These incidents leave passengers shaken and afraid. Some suffer physical and emotional damage. Those of us who hear of these events experience a feeling of unease the next time we have to take a flight. Safety, is the top priority for travelers and transportation companies alike, which is why agencies like the NTSB react swiftly to the news of an emergency landing due to engine failure. At the time of this writing, the NTSB is about to hold their first news conference on this aviation accident.

Since matters like this often lead to litigation, I reached out to some of our aviation accident investigation and reconstruction expert witnesses. As of publication, I received one response. We will update the blog post if other responses come in.

I provided six questions to aviation expert witness Robert Ditchey. You can learn more about Mr. Ditchey by visiting his website Ditchey.com.

Let’s hear from the aviation accident investigator:

Nick: Where would an aviation accident investigation begin?

Mr. Ditchey: The most important starting point is to quarantine the aircraft itself and do a thorough inspection of the aircraft and all of its parts and components.  That is quickly followed by an examination of the maintenance records, which are also quarantined immediately.

Nick: Is it common for an engine failure to break a window and cause cabin depressurization?

Mr. Ditchey: Engine failure itself is today very uncommon.  It is even more uncommon to have resultant damage to the aircraft as a result of engine failure.  The engine is designed to contain any mechanical damage to the engine.

Nick: It seems an incident like this has a variety of different issues including: engine failure, engine maintenance, safety protocols, aircrew training and response to emergency. What issue takes priority?

Mr. Ditchey: None take priority per se.  All are very important.

Nick: What is the NTSB’s priority in responding to this incident?

Mr. Ditchey: NTSB’s first priority is to discover what caused the engine failure.

Nick: What is the airline’s priority in responding to this incident?

Mr. Ditchey: Find out what happened and ensure that it won’t happen again.

Nick: Any thoughts or comments you would like to add…

Mr. Ditchey: The traveling public needs to be assured that the odds of a fatality are minuscule and that nobody is going to get hurt.  Next, we all need to give the NTSB some breathing time and our patience to let the investigators do their job.

 

 

Expert WitnessExpert Witness TestimonyFraudLawyers

Trump Lawyer Michael Cohen’s Home and Office Searched by Feds: Attorney-Client Privilege?

Yesterday, news broke about the FBI raiding the home and office of longtime Donald Trump attorney, Michael Cohen. All the major news outlets and talking heads are discussing the matter. Naturally, I felt I should join in and add some food for thought from the expert witness perspective. Assuming the case against Michael Cohen goes to trial, there are likely to be a variety of experts called to opine on different issues. At the time of this writing, reports indicate the federal government is investigating Mr. Cohen for both bank fraud and wire fraud.

Here is what we have learned since yesterday. According to NBC News:

“On Monday, the FBI raided the law office of Michael Cohen, President Donald Trump’s personal lawyer. They were seeking information about a $130,000 payment the attorney says he personally made to adult film star Stormy Daniels days before the 2016 election, sources told NBC News.

The search warrants were sought and executed by FBI agents and federal prosecutors in New York in coordination with special counsel Robert Mueller’s team after an initial referral from Mueller’s office.”

We have further discovered that Special Counsel Robert Mueller would have to consult with Deputy Attorney General Rod Rosenstein if his investigation discovered evidence unrelated to Russian interference in the US election. If such information was discovered, Rosenstein would then have to decide to expand the scope of Mueller’s investigation or refer the new investigation to another US Attorney’s office. It appears the Cohen investigation was referred to the US Attorney’s office for the Southern District of New York.

In essence, search and seizure of a lawyers office, where that lawyer maintains protected attorney-client communications, had to go near the top of the Justice Department. Thereafter, a warrant had to be approved by a federal judge, before the FBI could conduct the raid and seize these protected communications (among other evidence).

What about attorney-client privilege?

We should start with a simple definition of the attorney-client privilege. Here is a definition from Nolo.com: “The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients’ secrets, nor may others force them to.”

Finding the violation of attorney-client privilege a little disconcerting (note, I am not addressing the possible crime-fraud exception to the rule), I reached out to one of our legal and judicial ethics experts for comment. Experts.com member, Mark Harrison, Esq., is an Arizona-based civil and appellate litigator at the firm of Osborn Maledon, PA. He has extensive experience litigating and testifying in cases involving legal malpractice, legal ethics, and judicial ethics.

My request of Mr. Harrison was as follows, “Do you see any issues arising from this seizure related to fiduciary duties, attorney-client privilege, judicial ethics, or other items?”

Mr. Harrison provided me with a rather thorough explanation based on available information. Details about the subpoena or the documents seeking the subpoena have not been reported at this time. I have included several pertinent comments from Mr. Harrison, below:

“As I am sure you are aware, in order to get a subpoena issued in this situation the US Attorney had to satisfy a magistrate judge or a federal district judge that there was good cause for the issuance of the subpoena.

The potentially dicey ethics aspect involved in a situation of this kind is the risk that confidential client information – other than the information clearly covered by the subpoena – is inadvertently or unintentionally taken by the FBI officers executing the subpoena.”

According to news reports, none of us know whether Mr. Cohen has clients other than President Trump. If he does have other clients, Mr. Harrison explained, “the FBI officers executing the subpoena must exercise great care not to compromise the confidentiality afforded the information of other clients in Mr. Cohen’s files or to compromise the confidentiality of information relating to Mr. Trump that is beyond the scope of the subpoena.”

My personal experience in law firms and my professional responsibility education in law school left me with the belief that the attorney-client relationship was sacred. There was good reason for this as it encouraged clients to be open and honest with counsel so counsel could zealously represent their interests. As such, I am hoping the FBI does exercise great care in the review of these files. However, in reviewing documents, the FBI has to view the documents to know whether or not they are “beyond the scope of the subpoena.”

I had one follow up question for Mark Harrison. I asked if he thought a judge would ask an expert on legal ethics to oversee the review of attorney-client files to make sure the federal agents didn’t go beyond the scope of the subpoena? In asking this question, I also realized that the judge is likely to fill that role. However, I was interested to see if additional oversight might be necessary in this case.

Mr. Harrison said “I would be surprised if the judge or magistrate appoints an expert for that purpose unless Cohen’s lawyer seeks that oversight.”

So, based on information available to us at this point, the attorney-client privilege has or will be breached by the federal agents in their review of documents maintained by Mr. Cohen.

It’ll be interesting to see how this case develops and what other expert witnesses may be involved in a future criminal prosecution.

Does this open Michael Cohen to professional malpractice?

Some questions I have for future blog posts are as follows: Does the breach of attorney-client privilege by the FBI, expose Mr. Cohen to malpractice liability? Does the attorney have a duty to conduct himself in a way that would have precluded the FBI or anyone else from seizing all of his files? Does an attorney have a professional responsibility to avoid suspicion that may potentially place confidential client information at risk of being breached? Or, does the issuance of a search warrant protect the attorney from civil liability?

 

 

 

Expert WitnessIntellectual PropertylegaltechSocial Media

Tinder v. Bumble: Swipe Right for Your Next Patent Infringement Expert Witness

Last Friday I was sitting at my desk trying to find the next topic to blog about. Friday was an incredibly slow news day and nothing had piqued my interest. So I reached out to some lawyer-friends in the LegalMinds Mastermind Group for some ideas. I received a lot of feedback with some really great ideas. However, this Tinder v. Bumble lawsuit sounded like the most fun. A special thanks to patent lawyer, Karima Gulick, for the idea.

In fact, I had not even heard about this lawsuit until Karima mentioned it. It seems that Tinder’s parent company, Match Group (think Match.com), has decided to sue Bumble for patent infringement. For those who haven’t heard of Bumble, it is another popular dating app that allows women to make the first move. It seems they are now using very similar features to Tinder. An article in The Verge described the two patents at issue:

“…one called ‘Matching Process System and Method,’ in which users swipe cards and mutually select one another, as well as ‘Display Screen or Portion Thereof With a Graphical User Interface of a Mobile Device,’ which it describes as an ‘ornamental aspect’ of Tinder’s App. The lawsuit also points to similarities between each companies’ apps, and Bumble’s descriptions of ‘swiping’ run afoul of Tinder’s registered trademarks.”

It seems Tinder is accusing Bumble of infringing on the item that really made Tinder famous (i.e. swiping). Swiping did away with all that scrolling, reading, and learning about a potential romantic interest. Who has time for that? Even if you have time, who wants to do it? Instead, Tinder allowed you to make the important dating decision based on looks and looks alone, if you’re that shallow. It does appear there is a short biography portion some might want to read, but only if the potential match fits your physical requirements per their photo.

“Swipe right” and “swipe left” became a part of our nomenclature, often used outside of dating. I’ve heard comics and late show hosts use the terminology. There is no doubt in my mind, those using the terminology associate it with Tinder. Alas, Bumble decided to use the feature as well. Probably because users liked picking their mates via the swipe method.

There are some further accusations as set forth in this article by Recode, “[Tinder] also claims that early Bumble executives Chris Gulczynski and Sarah Mick, who both previously worked at Tinder, stole ‘confidential information related to proposed Tinder features,’ including the idea for a feature that lets users go back if they accidentally skip someone, according to the suit.” This is important, because when you’re swiping for volume (because it’s a numbers game) and get into a zone you might accidentally eliminate someone you find attractive. You need to undo that ASAP.

Finally, there is the issue of Match/Tinder trying to purchase Bumble last year. They offered $450 million, which was turned down, due to the acrimonious relationship between the two companies. Is Tinder using this case to apply some pressure on Bumble, thereby encouraging a sale? Quite possible.

If the case actually moves ahead and a sale is not negotiated, we can expect to see some expert witness participation. What kind of experts? I wish I could encourage you to swipe right to view them. However, you just have to keep reading!

Intellectual Property / Patent Infringement:

Intellectual property is sort of wide ranging term for expert witnesses. A broad range of expertise fits into the category intellectual property, such as patents, patent infringement, trademarks, trade dress, copyrights, licensing, trade secrets, and more.

In the Tinder v. Bumble issue, it appears they are only suing over a couple of patents and The Verge told us what those patents are. Both patents appear to be connected with the user interface, so I anticipate we will see intellectual property experts with software, programming,  and design engineering backgrounds. There is potential need for electronic engineering expert witnesses, but I think that will be less likely as it doesn’t appear hardware is at issue in this case.

Trademarks:

The lawsuit also claims that Bumble’s use of the word “swiping” infringes on Tinder’s registered trademarks. This legal dictionary from Cornell Law School’s Legal Information Institute describes a trademark as follows, “A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.”

The Legal Information Institute also tells us that “Two basic requirements must be met for a mark to be eligible for trademark protection: it must be in use in commerce and it must be distinctive.”

As I mentioned above, I knew that “swiping” was something associated with Tinder and I know that Tinder is a subscription based dating service. So, according to this layperson, the mark is being used in commerce and I recognize it as distinctive to Tinder. Now that I’ve made this information public, I cannot imagine Bumble wanting me on the jury. Luckily, the case has been filed in the US District Court in Waco, Texas.

Furthermore, a trademark expert witness retained by Bumble, may be able to provide information about “swiping” that indicates it is not distinctive. In fact, the terminology may be quite prevalent in software uses.

A Similar Matter?

The software matter I equate to this lawsuit would be the “Stories” issue between Snapchat and Instagram. Snapchat was the first social media platform to use the Stories feature, allowing users to post a continuing series of video clips or photos in order to create an ongoing story. Instagram copied it, nearly outright, and even admitted that they took the idea from Snapchat. To my knowledge, this has not resulted in litigation. However, the use of software-based features seem nearly identical and I wouldn’t be surprised to see a patent infringement and trademark dispute between Facebook (Instagram’s parent company) and Snapchat.

Requests:

As I am not practicing in this field, I think it would be great to get some feedback from a some lawyers who regularly deal with patents and trademarks.

I have asked Karima Gulick of Gulick Law and Joey Vitale of Indie Law to provide some real insight, rather than lay punditry, in the matter of Tinder v. Bumble.

UPDATE:

Intellectual property and patent attorney, Karima Gulick, has provided her insight about this case on her blog. Here is her blog post: Tinder v. Bumble: Patent dispute in app dating paradise.

Copyright and trademark attorney, Joey Vitale, has provided his insight about this case on his blog. Here is his blog post: Be careful if you “swipe”: trademark battles in Tinder v. Bumble.

 

 

Accident Investigation & ReconstructionCranesEngineeringExpert WitnessForensic Accident Investigation

Let the Finger Pointing Begin: Who is Responsible for the FIU Bridge Collapse?

[DISCLAIMER: In this post, we are going to name probable defendants based on available information. We are not determining liability or placing blame.]

One attribute of legal education is viewing an event and knowing, without a doubt, litigation will ensue; it is a blessing and a curse! I had this experience yesterday as I watched the horrific news unfold about the Florida International University bridge collapse. Issue spotting and parties were being identified within minutes after I received notice a bridge had failed in Florida.

For many catastrophic injury and wrongful death attorneys, this is a dream case. This sounds bad, I know, but hear me out. The result of this disaster is appalling and fault is abundant. None of that fault can be attributed to the victims. They were going about their day – sitting in their cars, stopped at a red light, probably admiring the new bridge – when the bridge collapsed on top of their vehicles. The victims did nothing wrong. They have no-fault (contributory, comparative, or otherwise) and, for certain, someone else is to blame.

The list of defendants will be ample. I’ve listed some of the probable defendants below. Don’t worry, these companies and institutions will be doing their own finger pointing. Whether we see it reported in the news or not, the blame game has already begun. To limit their liability, these defendants will point to others as responsible for this catastrophe, and the others will point back and point to others.

What we know:

In the City of Sweetwater, Florida, a pedestrian overpass at Florida International University (FIU) collapsed onto a notoriously busy road below. The Miami-Dade fire department confirmed six people are dead as a result. According to this article from Yahoo News, “at least eight vehicles were trapped in the wreckage of the 950-ton bridge.” Evidently, the bridge was constructed on the side of the road and was installed last Saturday.

“To keep the inevitable disruption of traffic associated with bridge construction to a minimum, the 174-foot portion of the bridge was built adjacent to Southwest 8th Street using a method called Accelerated Bridge Construction (ABC). It was driven into its perpendicular position across the road by a rig in only six hours on Saturday, according to a statement released by the university.

The $14.2 million bridge was designed to withstand a Category 5 hurricane, the most dangerous measure by the National Hurricane Center, and built to last 100 years, the university said.”

We can safely say the bridge did not live up to the purpose of its design. It didn’t have an opportunity to be hurricane tested because it was unable to remain standing for a whole week.

Possible Defendants: Anyone Involved in the Design, Construction, Inspection, and Erection of the Bridge

Where do I start? There are so many possibilities. Here is the list I’ve developed so far:

  • Munilla Construction Management (built and installed the bridge)
  • FIGG Engineering Group (bridge design, engineering and construction services)
  • Barnhart Crane and Rigging (moved the bridge into place)
  • BDI (structural testing and monitoring services)
  • City of Sweetwater
  • Miami-Dade County
  • Florida International University
  • Florida Department of Transportation
  • Materials Manufacturers (concrete, steel, etc.)

There will probably be other subcontractors and unknown parties who will be added to this list. The city, county, and state probably conducted inspections at different times during the design and construction of the bridge, so failures may be attributed to the municipalities as well.

Where Experts Come In:

What we have in this case is a bridge collapse. Failure analysis is the technical phrase used to determine why the bridge collapsed. The NTSB is sending their own investigative team to determine the cause for the failure. In litigation, both Plaintiff and Defense will retain a variety of experts to conduct their own analysis. Experts for all parties will have many questions to address. Here are some of the issues that come to mind immediately…

Were there defects in the construction of the bridge? If construction defects are identified, they may indicate a breach in the standard of care used by Munilla Construction Management during building of the overpass.

What about the design of the walkway? Did FIGG Engineering follow appropriate standards in designing the structure? Design and structural engineers will have to evaluate errors in the specifications which may have left the platform in a weakened and unsafe state.  This will also play a role for BDI who monitored the installation and later posted this picture, on Twitter:

 

bridge-collapse.PNG

 

Was the platform moved and installed according to crane and rigging policies and standards? Had there been a failure to secure the pieces of the bridge when moving it into place? Had the installation process added stress to components unnecessarily? This will all have to be analyzed to see if Barnhart Crane and Rigging had breached their standards of care during installation. Again, this will play a role for BDI, as they believed the move was a “job well done.”

By images and videos available in the news, we can see significant concrete slabs on top of the damaged vehicles. It will have to be analyzed and determined if the materials themselves had failed. Was the concrete, steel, or other material defective? Was it built to specifications? If not, what is the acceptable industry-standard deviation? If so, a product liability lawsuit against the materials manufacturers may also be appropriate.

All of these items will come back to the municipalities involved. Why did they retain the above-named companies? Was there a history of safety concerns with any of the firms? Were they overlooked? Did the municipalities fail to properly inspect the construction efforts? The Miami Herald covers some items about Munilla Construction Management and FIGG Engineering (and their respective work histories) in this article.

Traffic and pedestrian safety standards also come to mind as issues that may be addressed in upcoming litigation. Was there an alternative traffic route that could have been used until construction was completed? Were traffic safety procedures followed for the installation of an overpass?

There are many questions to be answered. For the victims, those answers will not ease the pain of losing loved ones. But the one guarantee we have is that one or more parties are responsible and those parties will be busy pointing the finger at each other and at others.

Business ValuationExpert WitnessLitigationSecurities

SEC Charges Theranos CEO with Massive Fraud – Securities Expert Witnesses

Once considered “The Next Steve Jobs” or the “female Steve Jobs,” Elizabeth Holmes has fallen from grace and landed directly in the cross-hairs of the Securities and Exchange Commission (SEC). Today, the SEC filed a civil complaint against Elizabeth Holmes and her company Theranos, Inc. There was a separate action filed against the Chief Operating Officer, Ramesh “Sunny” Balwani.

The complaint alleges, in part:

“Holmes, Balwani, and Theranos raised more than $700 million from late 2013 to 2015 while deceiving investors by making it appear as if Theranos had successfully developed a commercially-ready portable blood analyzer that could perform a full range of laboratory tests from a small sample of blood. They deceived investors by, among other things, making false and misleading statements to the media, hosting misleading technology demonstrations, and overstating the extent of Theranos’ relationships with commercial partners and government entities, to whom they had also made misrepresentations.”

Oh the good old torts of negligent and intentional fraud and misrepresentation. Takes me right back to the first year of law school, when Nickelback was a hot new band, rather than the sad punchline of Internet memes. I digress.

The complaint goes on to allege that based on representations, investors believed Theranos had developed a proprietary medical device able to conduct comprehensive diagnostic tests from a small amount of blood taken from the patients’ finger. They also made representations that they would collect and transport these samples in order to complete the tests on their proprietary analyzer. All of this would be done more efficiently and economically than traditional blood testing labs.

According to the complaint, Theranos was only able to perform about 12 of the 200 tests they claimed they were capable of performing.

Let’s stop here and give a simple warning: If you are soliciting money from investors, make it very clear what you are able to achieve. Differentiate this from what you hope to achieve in the future. Do not mix the two. Otherwise you get into a bad area called misrepresentation, or in this case, securities fraud.

A wide variety of expert witnesses:

In complex civil litigation such as this, there is room for a wide variety of different experts. I can only imagine the SEC and Theranos are both using consulting experts at this time in preparation for a long drawn out litigation. The complaint has only been filed today, so expert disclosures are a way off. Here are a few types of expert witnesses or consulting experts I expect to see in this matter.

Corporate Governance:

Expert witnesses on corporate governance are highly likely to play a role in this case. Officers of a corporation are fiduciaries of the corporation. Holmes owed a duty of care to the company and to her investors. She is accused of misrepresentation which, if proven, would certainly violate the standard of care owed to shareholders and the company. I expect there will be significant dispute by the parties to prove she either did or did not violate her fiduciary duties.

Securities & Finance:

Several different types of experts who practice in the area of securities fraud may come into play. We are likely to see experienced Wall Street experts with a history in equity trading, proprietary trading, investment research, securities valuation, financial forecasting, venture capital and investment banking.

Some experts will probably have backgrounds in IPO’s, private equity financing, securities financing, and stock options financing.

In this area, I feel as though I can go on ad infinitum. That’s not true and it is probable one or two candidates will have the requisite expertise, described in this section, to address the finance and fraud related matters.

Economics:

Although the SEC is primarily suing for injunctive relief, they do mention the potential for civil monetary penalties. I would expect there will be some need for an economist (by both parties) to establish the value of Theranos and shares owned by Holmes and Balwani.

As I do not practice securities litigation and this is not a law review article, it is possible the civil penalties are predetermined by the Securities Act and there is no need to value the penalties other than by the trier of fact.

UPDATE:

Within hours of writing this blog post, I discovered that Elizabeth Holmes has settled with the SEC. According to Reuters, she will be stripped of her majority control of the company and will have to return millions of shares to Theranos. She will also pay a $500,000 fine and be barred from being an officer or director of a public company for 10 years. As of this update, Mr. Balwani has not settled with the SEC.

 

 

Expert WitnessMedicalToxicology

Freed Russian Spy Likely Poisoned: What experts might be used in this investigation?

Yesterday, news broke that a former Russian spy, Sergei Skripal, and his daughter, Yulia, were found unresponsive on a park bench in Salisbury, England. News reports revealed Mr. Skripal and his daughter were suffering from exposure to an “unknown substance.”

According to an article in the Daily Mail today, “Two police officers who were among the first to come into contact with Mr Skripal and his daughter on Sunday were also admitted to hospital after suffering itchy eyes, rashes and wheezing on Sunday. Up to 10 other people suffered symptoms including vomiting.” One member of emergency services remains in the hospital as of this writing. Mr. Skripal and his daughter are both in critical condition. The substance remains unknown.

Of course, this instance immediately reminded me of the 2006 poisoning of former Russian spy Alexander Litvinenko. Mr. Litvinenko’s tea was laced with a radioactive material known as polonium-210, causing sudden illness and hospitalization. He died approximately three weeks later. UK inquests have determined the Russian Federation was responsible for Litvinenko’s assassination.

From reading a bit about both of these matters, I begin to understand that Russia does not take kindly to turncoats. They are also very brazen in their efforts to eliminate enemies of the state.

Reading about the potential poisoning of Mr. Skripal got me thinking about the types of experts that would be used in the investigation and possible criminal or civil actions related to this assault.

HAZMAT & Emergency Services:

Images from multiple news stories show a HAZMAT response to decontaminate the area from exposure to the “unknown substance.” I am unfamiliar with different levels of hazardous material responses, but I imagine HAZMAT experts will be required to help investigators determine the type of substance based on their response. It appears the immediate area around the bench, first-responders, and a restaurant in Salisbury are all being decontaminated.

There is no evidence of a large-scale quarantine nor is an entire block cordoned off. So, it appears HAZMAT believes the chance for further exposure to the community is limited. Such a response likely eliminates the threat of certain chemical or biological contaminants which could result in greater danger to the community.

Nuclear, Chemical, and Biological:

The post from the Daily Mail tells us, “Tests on the substance involved are being carried out at the defence research centre at Porton Down.”

There must have been evidence of the substance available at the scene allowing for samples to be taken for testing. Based on the previous assassination of a former Russian spy using radioactive materials, one can conclude nuclear scientists will be vigorously investigating the substance for radioactivity.

Since Scotland Yard’s counter-terror investigators are involved, it is reasonable to assume chemists and biologists will also be conducting tests on the substance.

A Toxicology Investigation:

I know most of us in the legal community think of forensic toxicologists being needed to detect drugs in a person’s system. Usually we see the use of toxicologists in a DUI, employment, or toxic tort related matter.

We don’t normally think of the need for toxicologists in an assassination or attempted assassination. However, if we remove the international intrigue from the equation, we are simply left with murder or attempted murder. Therefore, investigators will need to know the impact of the substance on Mr. Skripal and his daughter.

The Daily Mail noted, ” Emergency services initially believed Mr. Skripal and his daughter had taken fentanyl, a synthetic opioid that is up to 100 times more potent than heroin that has caused thousands of deaths among drug addicts worldwide.”

A toxicological investigation of the Skripal’s will be necessary to help determine the substance used to either drug or poison them.

Conclusion:

It is too early to conclude anything. Until we know more about the substance, we cannot identify the most appropriate experts to assist in the investigation. As the substance appears to be unknown as of today, we can only suspect UK authorities will employ all of the above during their investigation.

Should this incident turn into a murder investigation, we are likely to see several of the above experts testifying as expert witnesses.