Let's Talk About It
"We need to find an expert witness in injury mechanism analysis." So begins the wild goose chase.
Any good attorney, whether prosecuting or defending, will want to bolster the evidence in their case through the testimony of an "Expert" witness. The problem is, that just like attorneys and investigators, you often don't know what you're going to get.
I don't have a problem with someone testifying due to specialized training and experience, but I am very leery of the word, "expert." After all, there are countless examples of expert witnesses who turned out to be complete frauds, merely sloppy, or failed to keep up with advances in their fields. The damage these experts have caused to defendants, victim's families, and the public trust in the criminal justice system is hard to overstate. Just Google "discredited expert witnesses" and you see what I mean.
When certain witnesses are given the title, "expert," the jury believes that they have undergone a level of scrutiny that validates their expertise. Unfortunately, the source of the expert witness' credibility is too often their own carefully crafted and polished CV. This is a good start, but as everyone knows, many people embellish their resumes. Surely someone is calling the universities and verifying the expert's claimed academic bonafides? How about checking to see if the various training programs they have attended are accredited? What about all those industry symposiums and conferences; did they actually attend, or did they just add those on, knowing that no one would check attendance rosters?
Don't worry, there is a method of validating expert witnesses. It's called the Daubert standard, which along with Kumho Tire, sounds really good. Unfortunately, it leaves the validation in the hands of the judge, who is himself usually not an expert in the same subject. The Daubert standard is also flexible enough to allow allow expert witnesses whose backgrounds may not satisfy all of the requirements.
Expert witnesses are supposed to be objective, neutral witnesses whose special knowledge of a subject is meant to clear things up, so why do we so often see dueling experts with wildly different conclusions? Is it merely coincidence that their testimony most often supports the side that is paying them?
I propose having expert opinion settled before the trial even begins. Let the prosecution and defense expert witnesses submit their findings to a peer review board, which will evaluate their methodology, and deliver a consensus opinion on the conclusions. The completed peer review should provide a good evaluation of which expert has rendered the correct opinion supported by the current standards of their industry.
Until then, make sure you thoroughly investigate those expert witnesses!
It is Fall here in Texas, and the weather is turning, which makes this a perfect time to discuss the importance of atmospheric conditions when reconstructing crime scenes.
When I begin a case, whether it is fresh, or decades old, the first thing I do is reconstruct the crime scene. It’s important to make the reconstruction as detailed as possible, which includes making sure I know what the weather conditions were at the time.
How about the effects of weather on a human body? A good investigator needs to study and be aware of the changes expected in different weather conditions. This knowledge may allow you to challenge the theory being put forward by the state, or to prove your own theory. Good sources of reference would be the two Body Farms, currently being operated in San Marcos, TX (Freeman Ranch, Texas State University), and in Knoxville, TN (Forensic Anthropology Center, University of Tennessee). I have had great cooperation from doctors there, who have been willing to review crime scene photographs and give expert opinions on things like insect or animal predation, rates of decomposition, etc.
The weather can also be used as a chronological marker. In one case, I was able to use the starting time of a rain shower to triangulate a witness’ testimony, and establish a timeline for the victim’s disappearance to within two minutes, versus the previous law enforcement investigation's estimate of fifteen hours.
In an investigation, anything can be meaningful if the context is understood, and weather is almost always a consideration. This is true even for crimes that happen indoors. Did the rain create soft ground that can be searched for footprints outside a window? Does the heat explain why the air conditioner was turned all the way down? Was it so cold outside that the killer left the windows open to delay decomposition and confuse investigators? If so, what does that tactic say about the killer’s sophistication?
You can contact your local meteorologist, who can provide you with Doppler radar loops, and interpretation about the weather at the location you are studying. There are also weather records kept by local airports, and university science programs.
Good luck, and always keep searching for the truth.
Photogrammetry is the science of making measurements from photographs, and using those measurements to create hyper-realistic/accurate depictions of the subject.
I do a fair amount of pro bono work under my non-profit, Actual Innocence Review (www.airtexas.org), and I recently had an opportunity to use photogrammetry. The experience was exhaustive and exhausting, but turned out to provide the information I needed to prove my client’s innocence. By creating an accurate 3D map of the crime scene, I was able to demonstrate that the primary witness against my client couldn’t possibly have seen what she claimed.
There are basically two types of photogrammetry, aerial and terrestrial (close-range), and both can be combined to assist with criminal cases. Photogrammetry has been used for years to recreate crime scenes, to include traffic accidents, but the technology has improved significantly, even in the last ten years. Due to the expense of the laser positioning equipment and whatnot, photogrammetry has almost exclusively been a tool of the state, but affordable new software programs are making it available to everyone.
As with any process claiming to be “science,” photogrammetry has and will continue to face challenges. For example, where do you find an “expert” in this field? I can suggest the American Society for Photogrammetry and Remote Sensing (www.asprs.org), but you can also give a free software program called Tinkercad a shot. If you want to really nail it, you can invest in a program called Photomodeler.
Add this capability to your defense arsenal, and get better results for your clients.
We’ve all heard the phrase, “garbage in, garbage out,” right? The gist is that if you use substandard ingredients in anything, you’ll probably get poor results. We don’t allow airplane mechanics, doctors, surgeons, engineers, or scientists to practice their professions without the proper training, experience and education. Their work is too important, so we hold them to higher standards. Aren’t the stakes just as high in the criminal justice system? Hang on, this is not about attorneys.
I have often had to overcome the suspicions and doubts of clients who mistrust the credibility of private investigators. That skepticism is even higher with law enforcement, many of whom see private investigators as bumbling amateurs, who must somehow be breaking the law. How ironic.
Even if they do receive good training, there is still the question of how much actual experience they have with a given offense. How long has the officer been an investigator? What resources did he/she have at the time? How many other cases was the officer working? Was the investigator solo, or did they have a senior/junior partner? There are too many questions to list.
Now, I know a lot of police officers, many of them are friends of mine, but if they’re being honest, they’ll admit that not all police investigators are created equal. Of course there are some very good criminal investigators out there, but if a sub-par investigator’s work has never been challenged, the defense will never know the difference.
The point is that when a case goes to trial, both the state and the defense end up relying on whatever information law enforcement has put in front of them. Given that training and experience is such a mixed bag, you never know what you’re going to get.
Now I’ll drop the other shoe. Defense attorneys owe it to their clients to hire a trained private investigator to challenge the state’s information. No, it’s not necessary in every case, but it should be done far more frequently than is the current practice. The value that independent investigation can make is hard to overstate.
In my own experience, I have discovered critical evidence in almost every case; police manipulation of witness statements, witnesses who committed perjury, relationships between actors that police failed to explore, close analysis of crime scenes to disprove the state’s theory of the crime, and many more. These are not things that most attorneys have the training, experience, or time to discover on their own.
The most common response from an attorney as to why they didn’t hire an investigator is cost. It’s true, good investigators aren’t cheap, but neither are good lawyers, and the reality is that defense attorneys can always request funds from the state, as long as they can articulate the need. A private investigator can help with that too.
The bottom line is, to ensure the best outcome for their clients, defense attorneys need to find a good private investigator they can count on.
There was a great (and short) article written by Peter Andrey Smith (When DNA Implicates the Innocent, Scientific American, June 1, 2016), in which Smith provided a cautionary analysis of the dangers of relying too heavily on DNA evidence.
His primary example was Lukis Anderson, who in 2012 was charged with killing Raveesh Kumra, based on DNA evidence found at the crime scene. As it turned out, Anderson was in the hospital at the time of the murder, and his DNA was unknowingly transferred to Kumra by the paramedics who treated them both. Truth is stranger than fiction, right?
In my first actual innocence investigation, State of Texas v. Gustavo Mireles, DNA found at the crime scene was the only evidence that linked Mr. Mireles to the brutal 2001 murder of Mary Jane Rebollar. She was stabbed to death with a screwdriver-like weapon, and left in the cab of her truck parked in a sugarcane field. The evidence against Mireles consisted of two blood drops, and two pubic hairs, inextricably "found" in the victim's purse.
After that, it didn't matter that the the victim had a fistful of female hair in her hand, who that female was, or why investigators failed to collect that hair. Nor that the sheriff's office had taken blood and dozens of pubic hairs from Mireles, that relevant samples received at the lab were unsealed, or that an exonerating witness and a primary suspect were available.
If the science is reliable, then perhaps a scientist can explain why all of the crime scene DNA was degraded to the point that the lab could only recover three loci, except for the samples that conveniently identified Gustavo Mireles. Those samples had miraculously not denatured at all after two days in a sealed truck cab in the hot Texas sun, and came back with perfect nine-for-nine matches. How's that for context?
We need to stop giving DNA evidence a pass. Without proper context and interpretation, DNA evidence is circumstantial at best.
Daryl Parker is a published author, investigator, inventor, criminal justice reform activist, retired U.S. Marine, and treasure hunter.