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Thursday, January 26, 2006

Special appearance

Interesting piece in The O Wednesday morning on the fact that the City of Portland brought in a paid expert to testify in the grand jury proceeding following the fatal police shooting of James Jahar Perez in the spring of 2004. It was William Lewinski, the very same expert whom the city anticipated hiring to help defend itself in the civil lawsuit brought by Perez's family.

Our eternal county d.a., Mike Schrunk (worth some blog posts of his own), agreed to put Lewinski on the stand, even though it was known he was being paid by the city to show up and testify. In Schrunk's view, the expert was an objective provider of important information to the grand jurors.

It's hard to see it that way. Everybody in the legal racket knows that a "neutral" expert witness never really loses sight of who's paying his or her bill to be there. I'd be shocked if this particular expert regularly, if ever, gets employed by police shooting victims -- just the shooters. And Schrunk admits that he didn't give the Perez family a chance to have their own "neutral" expert testify before the grand jury.

However you come out on the propriety of the city's move in the Perez case (and there's room for legitimate disagreement about it), the front-page banner headline in The O was a bit misleading. The fact that Lewinski had testified before the grand jury is not news -- it was in the Willamette Week on May 5, 2004. The only new wrinkle, if that, was the fact that the city paid him to be there.

But notice reporter Maxine Bernstein's excellent question, which didn't really get answered, at the end of the O story: whether any similar expert testified in the much more recent grand jury proceeding into the police shooting of Dennis "Squeaky" Young. That grand jury also cleared the officer of any criminal wrongdoing. Schrunk says Lewinski didn't testify in that one. But did the city have someone else of the same stripe do the same thing?

Comments (21)

Good question.

How a paid witness can ever be considered neutral is beyond me.

Great, finally somebody willing to publicly discuss that independent expert racket.

Experts are widely used in all kinds of cases, civil and criminal alike. Feds had it running perfectly for ages, remember that "independent", 100% proof, fingerprint expert they used to collaborate their pinning of Spanish bombing on Mayfield?

There is little reason to believe the practice is beyond lesser officialdoms. Including apparently our own DA. To all external appearances Mike Schrunk has always been a master of inconspicuous tipping of scales especially in police cases, which would go a long way to explain his longevity.

I don't see this going away anytime soon, there is simply way too much money to be made here, and because the whole racket is too well entrenched in the legal system.

Re: paid experts and neutrality
In our firm, attorneys are sometimes called to be experts. Uniformly, they know who has called them to be an expert, but, again uniformly, the attorneys instruct the calling party not to tell them which side of the case the calling party is on. So, the attorneys often know who's putting jam on the bread, but not the flavor.


For another look at this witness' brand of testimony, see the posts which mention him on Portland Communique, from the days surrounding the jury of inquest.

Also notice, despite the statements in The Oreognian about how Lewinski wasn't there to defend the police office, that the above-linked WW story says the following:

Lewinski, a law-enforcement professor at Minnesota State University-Mankato, has made a career out of that slogan. A website advertising Lewinski's services describes him as part of a "stable" of legal experts that specializes in "the defense of police officers and their agencies [in] all areas of high liability."

Fascinating notion, that witnesses are supposed to be neutral. I haven't quite encountered that in our system of justice. The best you can hope for is that biases are disclosed and taken into consideration.

Experts are widely used in all kinds of cases, civil and criminal alike. Feds had it running perfectly for ages, remember that "independent", 100% proof, fingerprint expert they used to collaborate their pinning of Spanish bombing on Mayfield?

Lets not use that example, mmkay?
Even Mayfield's own lawyer said it was his fingerprint.

Even Mayfield's own lawyer said it was his fingerprint.


Would be nice to know if the grand jury got this info. I worked with grand juries for five years as a prosecutor, and that kind of information would mean a lot to the jurors I knew -- just as it generally does to civil and criminal trial jurors, who routinely discount or altogether disregard the hired gun experts.

Would be nice to know if the grand jury got this info. I worked with grand juries for five years as a prosecutor, and that kind of information would mean a lot to the jurors I knew -- just as it generally does to civil and criminal trial jurors, who routinely discount or altogether disregard the hired gun experts.

Given how Schrunk rigged the presentations to skew the officers' way, I highly doubt it.

Jon is referring to this type of quote: "The [FBI] points out that an independent fingerprint analyst hired by Mayfield's defense team also agreed that the print was a match to Mayfield (a claim Mayfield's lawyers confirm)."
Of course, in this classic case, two wrongs don't make a right. Jon fails to point out that the possessors of the fingerprint *didn't* make this match; "'At no time did we give our approval,' a Spanish police official told NEWSWEEK. "

"Even Mayfield's own lawyer said it was his fingerprint."

Re: the independent defense expert: independence in this town is a relative term. An aquaintance who had worked in the New York legal system once told me about what he described as a rare phenomenon there: "dumptrucking" where a lawyer sacrifices his own client for a "greater good"; I responded that we appear to have a fleet in Portland. When I first heard of the Mayfield matter, my first thought was: "what has he discovered practising law, and/or who'd he piss off?"

From The Oregonian article:

"...[Portland] paid $6,294 to bring William Lewinski, a Minnesota State University-Mankato law enforcement professor, to testify before the grand jury and the public inquest that followed. The amount covered Lewinski's preparation, travel, lodging and days on the witness stand."

Yeesh! Almost $6300 for less than full cross-examined testimony? My goodness, how many days was he on the stand, and how much preparation did he need? Did the city put Lewinski up at the Benson on our dime?

Not having any practical experience with the cost of expert witnesses, this seems to me to run a little too close to the Disciplinary Rule DR 7-109 [of the rules in force at the time] which limits witness fees to those "reasonably" incurred in securing the attendance and compensating for the time of the witness.

I wonder how many experts the City has paid but not called to testify because their testimony was "unhelpful"???

There is this notion of Mayfield's defense team hiring an "independent" expert that I find incongruous. Given that the "expert" they hired (K. Moses of Forensic Identification Services, turned out to be a former SF cop with very strong connections to the FBI* it would be real useful to know what really happened. The known facts are these:

Mayfield was thrown into prison w/o any notice; he had no chance to talk to any lawyer before. His first permitted contact was a local civil rights attorney Nelson who quickly declined to represent, his second representations was a federal public defender presumably with proper security clearances. The case was technically sealed (although the local FBI, USA Attorney office and DoJ were doing everything possible to feed the ensuing media frenzy) so only those two and Jones the local judge who ordered Mayfield imprisoned could talk to him at that time. Somewhere there Moses enters, promptly proclaims 100% match, which is equally promptly leaked to the media. Who made the decision to hire Moses, on whose suggestion, and who paid for Moses' "services" is of significant public interest. My bet is Moses was judge's pick to which Mayfield agreed in a desperate attempt to clear his name. But I could be wrong. Mr. Mayfield?

* his lawyer later bitterly complained to the judge about the FBI/DoJ abandoning his client after Mayfield filed his charges.

I wonder how many experts the City has paid but not called to testify because their testimony was "unhelpful"?

Before you start blaming the City Hall consider this.

There are cases where unscrupulous lawyers will game the system to their and their clients' unfair financial advantage. City Halls are particularly susceptible to this. It is in your best interest that the City defends itself aggressively because in the end it will be you who will be paying whatever the City is forced to pay. Also in the interest of involved cops because you don't want them unfairly accused.

Now how can the City decide whether to defend itself in a particular case or not. Technically speaking you simply check two things: internal police investigation report and grand jury decision. If both say your cops are clean you have no choice. You mount a vigorous defense.

In order to defend itself effectively the City will need to hire "experts". That's simply because that's how cases are effectively decided in courts these days.

The problem of course is that internal police investigations are basically worthless and that grand juries can be easily manipulated by skillful DAs. Consequently even in cases where the public consensus suggests major culpability on part of your police you will likely have no choice but to defend.


The solution appers simple, make cops personally responsible for their actions, deny them blanket protection of the City Hall. This will drastically reduce frivolous lawsuits, will make your cops more responsible and will be far easier on our pockets.

wg said:

"The solution appers simple, make cops personally responsible for their actions, deny them blanket protection of the City Hall. This will drastically reduce frivolous lawsuits, will make your cops more responsible and will be far easier on our pockets."

This just isn't workable. Aside from the fact that cops have qualified immunity for much of their actions done within the scope of their government employment, the fact is probably nobody would ever want to be a cop if they were held personally liable for everytime the roughed somebody up.

... the fact is probably nobody would ever want to be a cop if they were held personally liable for everytime the roughed somebody up ...

Precisely the point, you don't want anybody willing to rough people up to work as a cop. Furthermore the idea that unless you give them a license to brutalize/kill people there will be nobody willing to work is an old tired canard. Think for example of Scandinavian countries, police brutality is almost unheard of and they never had any problems with recruitment.

Qualified immunity is a legal artifice of dubious constitutionality or even propriety imho. We deny drug companies qualified immunity, why should we treat others differently. You commit a crime, you are penalized regardless of your station in life.
Qualified immunity has no place in democratic societies.

Whore "experts" are the lifeblood of our trial by jury system: somebody has to pay them or they (generally) won't take the time to testify.

The exceptions are those already on the payroll (M/E, detectives, police officers). Ironically, it is frequently possible to find experts with contradictory opinions. Who will the jury believe?

The grand jury was convened to determine whether there were sufficient facts to think the officers could be charged with a crime in the shooting of Perez. By bringing in "expert testimony", the Perez family could be justified in claiming that the grand was subjected to a defense phase favoring the officers.

I wonder if it is possible to aggregate the disutility of lots of little wrongs that are not righted due to the costs of lawyers. (Think in terms of an economist's use of the term utility.) If they are not paid handsomely then it is just not cost effective to right a wrong, or at least not if it pays better to right some other wrong. (Adam Smith's invisible, but not so invisible, hand at work.) The statutes, together with gobs of adhesion contracts, provide ample opportunity, over time and in aggregate, to prostitute our entire legal system into an OK Corral gun fight where the biggest gun wins without ever having to draw. David must be willing to commit economic suicide just to fight about a mole hill with Goliath.

The Public's advocate, our DA, has long since crossed over the line to become the anti-public advocate. What is new? The judges (and juries) accord a presumption of lawfulness to anything anyone does so long as it is under the color of law - - - reminiscent of the King Can Do No Wrong and quite contrary to the distinctive feature of skepticism of all things government-related that embodies Americanism.

I had to answer someone's plea for guidance recently after they took a punch in front of their place of residence, without punching back (mindful of doing the right thing), only to have dueling calls to the police whereupon the police interviewed the puncher and then amplified the puncher's diatribe against the punchee (punchee's story). I could only point to Jack's post on two dead citizens and say what the hell do you think you could argue against the police that the families of the two dead people cannot? And, by the way, you did the right thing not to punch back.

Silly me, to carry forward the message of defeatism rather than defiance.

It reminds me of The Truman Show -- where a snippet from a site reads:

"That we are the moral equivalent of these viewers-voyeurs, accomplices to the same crimes, comes as a shocking realization to us."

They are just doing what they think they are asked to do, as actors.


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