Burton Katz
‘Expert’ evidence is unconvincing
The defense in the Spector trial has begun its case by calling to the stand its expert, Vincent DiMaio, a retired forensic pathologist from San Antonio, Texas. The heart of the pathologist’s testimony is that the blood spray pattern and gun-shot residue evidence from the fatal oral wound suffered by Lana Clarkson was consistent with her having fired the fatal shot. What DiMaio failed to tell the jury on direct examination was it was also equally consistent with her not having fired the fatal shot.
It has been said, “an expert is a man who always has a good reason for guessing wrong.” Perhaps this observation is too charitable because it implies there is at least some “guessing” involved. It is difficult to understand how such an experienced witness and alleged authority on gunshot wounds could have offered an opinion on direct examination without qualifying the evidence was equally consistent with someone else having fired the weapon.
The pathologist and the defense made a tactical mistake by not bringing this fact out on direct examination. It looked as if they were trying to create a false impression. The damage done to this expert is irreparable as it may well appear to the jury that the expert was advocating rather than offering a legitimate opinion on crime scene evidence.
DiMaio, on cross-examination, assumed a combative role when aggressively questioned by a confrontational prosecutor, Alan Jackson. Rather than remaining calm and above the fray, he mistakenly entered the abyss of advocacy. When DiMaio was asked why he hadn’t told the jurors the blood and gunshot evidence was consistent with the prosecution theory, he angrily retorted it was well known in the scientific community that it was also consistent with her being near the gun when it was fired.
When Jackson pushed further, reminding DiMaio the jurors were not scientists, DiMaio irritably replied, “Because that’s how we testify.”
“I told the jury the truth,” DiMaio shouted at Jackson, who angrily retorted, “Actually what you told the jury was a half-truth.”
This was not a smart exchange for the witness who on direct examination told the jurors he was simply giving an unbiased look at the evidence, which, he claimed, pointed to a self-inflicted suicide. But there’s more that establishes the apparent bias of this expert.
The doctor testified that, among other reasons, he concluded Lana Clarkson committed suicide because the e-mails from her computer suggested she was depressed. But the doctor didn’t mention to the jury the other contemporaneous positive e-mails that showed her to be “hopeful.”
Louis Pena, the Los Angeles County medical examiner, characterized Clarkson as a “hopeful and happy” person.
Finally, the jury laughed when DiMaio suggested Clarkson could have easily overpowered Spector because she was 25 years younger, 25 pounds heavier, in better shape; that she could have twisted the gun and broken his finger, if Spector was the aggressor.
To paraphrase the Hon. Curtis Bok, expert opinion is, at best, only an ordinary guess in evening clothes.