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Trial By Expert

DUI crash trial hinged on "imprecise science"
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Brian David Charles, accident reconstructionist for the prosecution, shows the jury a diagram indicating how he believes teen driver Avree Koffman swerved to avoid defendant Scott Owens, whom Charles argued was driving the wrong way on Old Las Vegas Highway at the time of the crash. (Wren Abbott)

By Wren Abbott
April 19, 2011 at 6:01 pm MDT

To family members and friends of the four teens killed in a 2009 DUI accident, it must have seemed incongruous to listen to hours of testimony about physics principles and car steering components, given the basic facts of the case: Defendant Scott Owens was driving extremely drunk, sober teen driver Avree Koffman was maimed, and four sober teen passengers, Rose Simmons, Kate Klein, Julian Martinez and Alyssa Trouw, were killed instantly.

Owens was acquitted of all charges in the incident; he had been charged with four counts of vehicular homicide and one count of great bodily injury by vehicle, and faced a maximum sentence of 27 years if convicted.

But in the absence of definitive evidence showing Owens directly caused the accident, his fate was left mostly in the hands of paid crash reconstruction experts—a situation legal scholars say is fraught with questions of fairness.

Dan Cron, attorney for Owens, stipulated at the beginning of the trial that ran from April 12-18 that his client was drunk at the time of the T-bone accident on Old Las Vegas Highway—Owens blew a 0.16 blood alcohol concentration, which is twice the legal limit, and admitted to nearly blacking out during the crash. Although he was so disoriented at the time of the crash that he told officers he thought he was headed home to Eldorado, when he was actually going to Santa Fe, Owens' statement to police during a later interrogation, videotaped and played during the trial, was that he believed the other driver crossed the center line. Meanwhile, driver Koffman, then 16, who was airlifted to University of New Mexico Hospital after sustaining serious injuries, testified she didn't remember much that happened in the seconds before the crash.

The defense argued that 16-year-old Taylor Johnson, who was following Koffman's red Subaru to an Eldorado party at the time of the crash, tried to pass Koffman on the right shoulder of the road, pushing Koffman into Owens' lane. The night of the crash, Johnson didn't tell police that Owens was driving in the wrong lane and, in a 911 recording, a young man at the scene who called for help can be heard angrily asking a female, "Why'd you do that?…Did you swerve?"

Testifying for the state, accident reconstructionist Brian David Charles of Corpus Christi, Texas, argued that, based on where the vehicles ended up and the marks left on the road, Owens had to have been driving in the wrong lane.

Another accident reconstructionist, Robert Caldwell of Lafayette, Colo., argued for the defense that Owens was in the correct lane and Johnson's attempt to pass Koffman pushed Koffman into Owens' path.

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How can two experts have such differing interpretations? Because accident reconstruction is not the most objective discipline, David Bernstein, a legal scholar and professor at George Mason University, says.

"It often seems that you can have two experts that can have wildly different conclusions. I think it's just that not a lot of objectiveness goes into the assessments. If you just change your assumptions slightly, like, 'Was this tire track made at 35 miles per hour or 28 miles per hour?' it can really completely change your ultimate assessment of the case."

Unfortunately, Bernstein notes, "I don't think there's any objective scientific standard…it's not that difficult for each side to find its own expert, and to the extent that there are two possible interpretations of information, each expert uses the interpretation that helps their case, so you basically end up with garbage in, garbage out."

Lawyer Stephen Mahle, who specializes in evaluating expert witnesses to determine whether their testimonies will meet legal standards for reliability and relevancy, says that accident reconstructionists have come under fire in recent years after new legal standards placed more restrictions on expert-testimony admissibility. For example, forensic evidence used in arson cases garnered more scrutiny after evidence used to convict a Texas man executed in 2004 was largely discredited. Cameron Todd Willingham, who was convicted of killing his three daughters by setting his house on fire, consistently maintained he was innocent and turned down plea deals that would have kept him from the needle.

"There are more and more supposed disciplines that are not really regarded much longer as very reliable," Mahle says. "For example, fire experts, guys that allege they can determine how and where a fire was started, more and more it's turning out that they don't have any idea how a fire got started, and my sense is that some parts of accident reconstruction are not so sound as some other kinds of expert testimony."

Lawyers' needs to find experts whose interpretations of cases will help their clients has created a system in which many experts usually testify consistently either for the defense or for the prosecution. This, in turn, raises questions about their objectivity. Joycelyn Pollock, a Texas State University professor and author of books on criminal justice ethics, tells SFR that some experts become notorious for their history of testifying for one side or another.

"There was a guy who was called Dr. Death in the Dallas area because he always testified for the prosecution that the defendant would be a continuing threat to society in death penalty cases," Pollock writes SFR in an email.

Mahle says experts whose entire business consists of testifying at trials deserve extra scrutiny.

"There are lots of really good experts, and courts would have a hard time going forward without some of these guys, but there are definitely people out there that will say what you want them to say for the right price," Mahle says. "If a lawyer comes to an expert and wants certain testimony from an expert, that expert knows that if he comes to the wrong conclusion early on in his analysis, he's going to get 50 hours of work out of it, but if he comes to the right conclusion, he's going to get maybe 250 hours of work out of it."

Bernstein says experts also are under pressure not to waver in their opinions later, lest they be branded as "the expert who lost his client's case."

Duke University School of Law professor Neil Vidmar says although a case that is overly reliant on expert testimony raises concerns, his research has shown that jurors are surprisingly capable of analyzing even technical expert testimony using common sense, and of relying on other evidence presented if two experts cancel each other out.

"If this one expert says X and this expert says Y, I think, if they are really in conflict, the jurors probably rely on something else, but my suspicion is that they're able to sort through it," Vidmar says.

The day the defense rested in the case, John Simmons, whose daughter Rose was 15 when she was killed in the June 28, 2009 crash, told SFR that, although he didn't think anyone lied on the stand, he still hadn't decided which version of the crash scenario he believed. But of the larger impact of the tragedy, he has a very clear idea.

"We know the final end outcome of this was that Rose was killed and Julian was killed and Alyssa was killed and Avree was maimed and Kate was killed and…every single person [involved] is a mess because of it," Simmons says.

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