Archive for September, 2011

I had a case recently where I used an out-of-state boat accident reconstructionist.  I don’t blog about my own cases too often, but the case was unusual enough that it is probably worth reflecting on.  The boat accident expert we used was Phillip Odom of H2O Investigations, and he was helpful in resolving this case.

In the U.S., boat death fatalities only number about 700 per year, so there just aren’t many experts on boat accident reconstruction.  I spent a couple of days on my hunt for an expert, and did a lot of research.  I stumbled upon one lawyer’s website  which warned: “What you don’t know about motor vehicle or boat accident reconstruction can get you into a lot of trouble in court.”

A photo of a boat accident experiment staged by Phil Odom for the State of California

We know because we have been instrumental in getting a lot of “experts” disqualified or voluntarily withdrawn.”  The article sites a federal case from the 5^th Circuit that spells out the criteria the courts use in determining whether an individual is qualified to be a boat “accident reconstructionist”.  There is a lot more than simply taking a class in accident reconstruction.  Courts will look to the training and experience, any experiments a person has conducted, and whether he or she has taught any classes on accident reconstruction.  The boat accident expert we found, Phil Odom, used to teach boat accident reconstruction for the State of California, and you can see from his website that he has conducted dozens of scientific experiments to back up his training.  Phil Odom has conducted over 70 different experiments with boat collisions, and was the operator of the vessel during the tests.  Many of these tests were conducted between 2006 and 2008, and California does not conduct such tests today.

The State's accident investigator wrote: "Upon further and closer inspection of the vessel I found that there was no physical damage to the two Honda motors attached to the rear of the vessel, the lower units, the propellers, or skegs." As this photo depicts, there was damage to the engine, and the damage was indicative of a foreign object being stuck in the steering.

Like a lot of boat accident experts, he got his start in the early years of his career investigating motor vehicle fatalities, which are of course much more common.  He was thorough as a vehicle accident investigator and won awards from such groups as Mothers Against Drunk Drivers.  In the case where I used him, we flew him up to examine the boat in question a couple of months prior to trial.  He noticed some damage done to the engine that was indicative of a vessel that had something caught in the steering, thus corroborating the defendant.  The damage was not immediately apparent to everyone, and even the prosecutor’s accident investigator failed to notice this crucial damage.  As with motor vehicle accident reconstruction, boat experts must be knowledge about the applicable mathematical formulas required to reconstruct what occurred.  During our trial the prosecutor’s accident investigator was asked to come down to the easel to explain to the jury how to convert feet-per-second to miles-per-hour and yet was unable to do so.

Accident Reconstructionist Phil Odom analyzing GPS data with an attorney via Skype

The accident investigator hired by the prosecutor did not notice the damage to the engine, and wrote in his report that the motors were undamaged.  When Phil Odom explained to the jury the damage to the motor, he explained that damage to metal must be inspected closely because you can often see in what direction the metal was forced or twisted.  In the case I did, I actually printed out enlarged photographs to each juror so that they could follow along.  Phil Odom also testified on the subject of occupant kinematics, which is the study of the positioning of the bodies in the vessel at the time of the collision.  Generally speaking, the injuries to the human occupants follow the direction of force.  In this case, the vessel struck a fixed barrier in the front right-hand corner.  The prosecutor’s investigator was not permitted to testify as to the subject of occupant kinematics due to his insufficient experience.

There were other issues in the case that assisted the defense, in that the defendant was not intoxicated, but Mr. Odom’s discovery of the steering jam was important to our defense.  You might expect that a witness such as Phil Odom would be outside a defendant’s price range, but in this case our expert was actually about the same price as the state’s investigator who had never testified as an expert before on boat accident reconstruction.  We had to fly in Phil Odom from Arizona to inspect the boat and again to testify, but it was worth it.  The lawyers that I talked to prior to hiring him described Phil Odom as one of the top three boat accident experts in the country.  After my trial, I spoke to the jurors and I know they were impressed by his work.

Post by Steve Graham

What will Amanda Knox’s lawyers say on her behalf when they deliver their closing argument Wednesday?  I am predicting that they play it fairly conservatively, and that they don’t try to oversell the defense. They will tailor their arguments to the judge and jurors and not the world stage.  We will have to wait and see, but here are a couple of themes that I am predicting they focus on.

No Motive (Women don’t commit rape)

We are accustomed to the outlandish sort of crimes that occur on T.V. shows, but in reality but the fact remains that women don’t commit rape. There are many technical rules that apply in a court of law, but that doesn’t mean that you have to check your common sense at the door.  Women don’t rape.  Italian women don’t commit rape.  American women don’t commit rape.  Women aren’t committing the rapes that are happening in the Sudan right now.  It is not in their nature.  It is usually committed by men – acting alone.

What a “Not Guilty” Verdict Means

All a “not guilty” verdict means is that the government, for whatever reason, hasn’t proved their case.   It doesn’t mean the police did a bad job.  It doesn’t mean that Amanda is “innocent”, and it doesn’t mean she is a perfect person.  A “not guilty” verdict doesn’t amount to putting a halo over Amanda’s head.  It just means that there is a doubt.  And if there is ever a doubt in any case, it is this one.  We don’t send people to prison for life unless we are absolutely sure.

I am not expecting that the defense team will attack the police and prosecutors too aggressively.  It is a trial lawyer’s job to attack the thoroughness, the fairness, and sometimes the professionalism of the police during a trial if need be.  But during the closing argument it is best to tone it down and be a little more magnanimous.   It is sometimes best to credit the police for the things that they did do correctly.  Jurors generally feel loyal to to the police on many levels, and are dependent on them for public safety.  They are slow to buy off on a world view where the police are dysfunctional to the level outsiders have seen.  I am sure that many of Knox’s supporters would love to see a blistering attack on the police, and to see them called out on their misdeeds.  However, if Knox’s lawyers push that too hard, then it becomes an issue of national pride, and the next thing you know we are at the supreme court in Rome.

It is sometime acceptable to try a riskier strategy to try to shake things up, but this is when you feel you are not succeeding and you have nothing to lose.    I guess you saw that with Giuliano Mignini last week.  But to be honest, that man is so erratic, it is hard to say what he is thinking.  The closing argument of Patrick Lumumba’s lawyer Carlo Pacelli was just plain odd.  Not to be upstaged by Mignini, Pacelli called Amanda Knox a “witch of deception”.  I am not sure if he is just trying to get some publicity, or if he thinks that is good lawyering.  Doesn’t he know that we sometime refer to this case as a “witch trial” already?  Isn’t he just proving our point?

What do you think?  What arguments do you think Amanda’s defense team should advance?

Today during his closing argument, prosecutor Giancarlo Costagliola vouched for the credibility of known heroin addict Antonio Curatolo, who claimed during the criminal trial that he saw Knox and Sollecito near the crime scene the night of the murder.

Prosecutor Giuliano Mignini. (Photo by PerugiaShock.com)

Curatolo’s testimony unraveled during the appeal when Curatolo’s story grew more implausible as he claimed buses were running and students were congregating on a night when the buses were not running due to the disco being closed.  During his closing argument, Costagliola apparently minimized the effect of heroin use on a person’s perceptions and credibility, which led Perugia Shock blogger to sarcastically write:

Heroin doesn’t give hallucinations …  your perceptions won’t change. You can work the same if you take heroin. You can follow a class without any problem. You can work at the assembly line. You can manage your clients’ money. You can operate on your patients. You can sit on the directors’ board. You can sit in court to testify, or to judge people. It doesn’t give you hallucinations. So, why do people take it if it doesn’t give them not even a bit of hallucination?

In the U.S. the testimony of known drug addicts is so troubling that courts often will issue an “addict instruction” to the jurors cautioning them to be careful in considering the testimony of an addict.  The instruction usually goes like this:

The testimony of a drug addict must be examined and weighed by the jury with greater care than the testimony of a witness who does not abuse drugs. An addict may have a constant need for drugs, and for money to buy drugs, and may also have a greater fear of imprisonment because his or her source of drugs may be cut off.

I noticed the prosecutor Giancarlo Costagliola also asked the jurors: “As you make your decision, I wish that you jurors feel a little bit like the parents of Meredith Kercher…”.  For what it is worth, in the U.S. these sort of put-yourself-in-the-victim’s-shoes type of arguments are considered prosecutorial misconduct, and are banned in courts.

Not to be out done by Costagliola, Mignini himself made some pretty outlandish statements today, comparing the Amanda Knox defense claims to Nazi propaganda. Mignini argued that the defense committed: “…slander, slander, slander in the hope that it some of it will stick. It’s worthy of the noted propaganda minister of Nazi Germany in the 1930s.”

Who was impressed by all this nonsense?  Pretty much just Barbie Nadeau, who headlined her article as follows: “Knox Appeal Hits a Snag – Since her appeal began, Amanda Knox has appeared to be sailing toward an acquittal—but the prosecution’s powerful closing argument today could alter her fate once again.”  Is she kidding?  Apparently in the mind of Barbie Nadeau, the jurors said to themselves: “Hmmmm…. maybe we shouldn’t acquit.  Mignini DID have a pretty good point about our war-time allies the Nazis.”

Lastly, Mignini made reference Rudy Guede and argued: “Don’t let the poor black guy be the only one to pay the price for this murder.”  The best response to this was by EdLancey in the comment section of Nadeau’s article.  He wrote: “Have you ever heard a more disgusting comment, the poor girl’s room was covered in his [Guede’s] bloody footprints and semen, and this lunatic tries to play the race card.”

I just finished the book The Goose That Laid The Golden Egg, by Doug Bremner.  The book describes Dr. Bremner’s attempts to study the side-effects of the acne medicine Accutane, and the book chronicles his life’s unraveling in the face of a smear campaign by the drug company Hoffman-La Roche.

Teenagers who had taken the acne drug Accutane had an increase in risk of suicides and suicide attempts. In 2002, a teenager who had taken Accutane intentionally flew a plane into an office building.

Doug Bremner was working for Emory University in 2001 when he was approached by the father of a boy who had killed himself after being prescribed Accutane. Having no real idea of what he was getting into, Bremner volunteered to conduct studies and ended up in the vortex of a multi-million dollar battle between a ruthless pharmaceutical company and shark trial lawyers working for the plaintiffs.

Roche took the drug off the market in 2009, but not before accumulated statistics on suicides, birth defects and stunted growth attributed to the medicine.  Roche warned of possible side effects in the fine print, but the company soon began pushing sales of the drugs to kids with just normal teenage acne.  You will recall that this sort of pressure for more and more sales is what motivated Purdue-Pharma to be fined $600,000,000 for over-marketing OxyContin as a “safer alternative” to Percocet or Vicodin. (See earlier post.)

Bremner signed on as an expert witness for plaintiff’s counsel for several families that sued Roche when they lost teens to suicide. I came to learn a little bit about what it is like to be a witness in a high-pressure court case by reading this book. Bremner was grilled by defense lawyers in 15 different, day-long depositions where he was forced to answer endless questions over a course of years. At Roche’s apparent urging, Bremner was brought up to defend ethics charges at the university where he worked, and Bremner’s life slipped out of control as one of the world’s richest corporations did everything they could to publicly discredit him.  The lawyers working with Bremner failed to prepare him or fully protect him, and the stress pushed Bremner away from his family. Bremner tried to keep centered by reminding himself that he was helping the families of Accutane patients, but this only carried him so far.  He escaped by taking long drives where he researched the background of his mother who died when he was just 4 years old.  But this angered his other family members, who viewed this as an affront to his stepmother.  Feeling alone, Bremner grew too close to an ex-girlfriend from high school in an online friendship.  Bremner resolved these issues on a therapist’s couch, and in the book he mused on New Age religions, particle physics, genealogy, and contemporary music.

Doug Bremner M.D. dared to speak out and conduct studies on the side effects of the drug Accutane. This book describes his battle.

The book ends on an upbeat note as Roche pulled the drug from the market. Also, Bremner’s biggest detractor is exposed as being secretly on the payroll of Big Pharma.  Doug Bremner healed his familial rifts when he smartened up and refocused on his wife.  Bremner’s efforts to learn more about his mother led him through a trail of dinky towns in eastern Washington, which is the same area where I live and practice law.  In the end, Bremner held a long-overdue burial service with his mother’s ashes.

Someday, society will hold these drug companies to higher standards of decency, and they will not be able to stall and hide these side effects for so long while they reap billions of dollars.  But until this day, Doug Bremner will go down in the history books as a champion of the forgotten patients, as a physician who told the truth at great personal cost, or simply dared to conduct basic studies in response to patient complaints.

Doug Bremner writes in the book: “I don’t know how I got dragged into this mess… I always avoided controversy and confrontation like the plague.”  I am sure Doug Bremner was selected as an expert witness because he was honest, well-credentialed, and could connect with a jury.  But to take on a project like this, it helps to have a hide like an alligator.  This book is an amazing personal story of a man who nearly lost everything in his bid to stand up for families harmed by a company that pushed Accutane for profit – it is definitely worth picking up.

I think Amanda Knox has a 91.5% chance of being set free this month when her appeal is concluded.  That is my expert opinion as a practicing criminal lawyer who has followed this case closely. In other words it is just a wild-ass guess.  But as everyone just powerlessly sits and wait, this “percent chance” question seems to be what everyone is asking.  I have seen this “percent chances” question asked in blog forums and also in the comment section of Murder in Italy‘s Facebook page yesterday. Ultimately, all any lawyer can do is try his or her best to convince the judge or jury.  There are no assurances of outcomes. Oftentimes, people will study the slightest thing judges or juries do in order to divine what result will be reached.

Amanda Knox meets with her lawyer, Luciano Ghirga. Her appeal is going well, and closing arguments begin on September 23rd.

For example, it was generally viewed as a good sign when Judge Pratillo Hellman denied the prosecution’s request to have the DNA re-tested again.  However, I suppose one could interpret this as meaning the judge believed the prosecutor’s case was sufficient without the DNA, and wished to spare the prosecution the trouble and delay.  I have a feeling that when closing arguments begin on September 23rd, the lawyers will pretty much feel that they have made many of their points already.

One of the other things I wonder about is what sort of life Amanda Knox will have if she is freed and returned home.  Surely that would be a good day to look forward to, but Mignini’s injustice has already done irreparable harm to Amanda and her family.  My experience has been that individuals cleared of serious allegations experience a short “high” upon their release, but later dwell bitterly on their mistreatment when they reflect on time lost, legal bills, and the torment on their family members.  In my opinion no sort of court victory will be complete without Giuliano Mignini being held to account and without reform in the Italian criminal justice system.  While the press in the U.S. has been more fair to Knox, Americans too can be cruel.  Mignini’s attacks and half-truths have reached our shores as well, and not just by the Lifetime T.V. network.  It seems Giuliano Mignini should face separate criminal charges for how he has handled the Amanda Knox case.  My expert opinion is that upon Knox’s acquittal, Mignini has a 96.2% chance of never practicing law again.

What do you think about the latest developments in this case?

In the 13-year history of Washington’s medical marijuana law, the Department of Health (DOH) has not taken disciplinary action against any health care provider related to medical marijuana authorizations.  However, DOH has opened an investigation recently into health care providers who are claimed to have issued the authorizations at Hemp Fest in Seattle.  It pretty much started when a reporter from the Seattle Times, Jonathan Martin, stopped by a booth set up by 4Evergreen, and claims to have walked off with a medical marijuana authorization 11 minutes later.  To get the authorization, Martin complained of “a four-year problem, treated by physical therapy, prescription, and over-the-counter pain remedies, with weekly flare-ups ranging from slight to severe.”  This article pretty much highlights a difference in philosophy between medical marijuana  advocates and others in the state.  Many think medical marijuana should be a drug of last resort, whereas others view medical cannabis as a safer alternative to other powerful drugs such as hydrocodone or OxyContin.  It would have been interesting for Martin to have conducted a similar experiment to see how easily he could obtain those prescription drugs.  I would bet that his similar complaints could have led to a prescription for OxyContin in a lot of doctor’s offices.

The story by Jonathan Martin reminds me a little bit of what Clel Baudler did when he was fighting medical marijuana in Iowa.  Baudler, who is a state representative, traveled to California and lied about a medical condition in order to demonstrate how easily he could obtain a prescription.  He admitted he lied, and later faced ethics charges over the incident.

What do you think?  Should state law be amended to make it harder to obtain authorizations?