Metropolitan News-Enterprise


Wednesday, July 30, 2008


Page 3


Court Upholds Censure of Forensic Expert Over ‘Ludicrous’ Testimony


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeal yesterday upheld a private organization’s censure of a forensics expert who proffered testimony in a Louisiana court that his peers deemed untenable.

Div. Three concluded that the Association of Firearm and Toolmark Examiners’ four years of internal proceedings in which it provided Paul Dougherty with multiple notices of pending charges, opportunities to explain his testimony, opportunities to complain about the composition of the adjudicatory body, and a hearing requiring a supermajority to sustain any sanction, afforded Dougherty ample fair procedure.

The association, which promotes the integrity of expert testimony in the area of firearms forensics, maintains a private code of ethics precluding members from making “unrepresentative, atypical, or unreliable” conclusions from evidentiary materials or “assisting litigants so as to create a false impression.”

While a member in good standing, Dougherty was retained by the State of Louisiana as a firearms expert to testify in an excessive force claim filed by Ronnie Clark against two Louisiana state troopers.

Clark had been permanently paralyzed by a shotgun pellet which had lodged in his spine, severing his spinal cord. The pellet indisputably entered from the rear, suggesting the officer had shot Clark from behind after Clark raced through a police roadblock on his motorcycle.

Dougherty, however, proposed that an officer had fired his shotgun as Clark sped past, and that the pellet had ricocheted off the highway, then upward off a nearby curb, striking Clark as he turned his body at precisely the right time for the pellet to penetrate his back.

The trial judge, finding that the officer had fired as Clark passed him, issued a judgment in favor of the state and officers. A state appellate court affirmed, and the Louisiana Supreme Court denied review.

Dougherty’s fellow AFTE member and opposing expert, Lucien Haag, found Dougherty’s proposed scenario “intellectually dishonest,” and filed an ethics complaint with the organization.

The AFTE ethics committee chair sent Dougherty a notice and copy of Haag’s complaint, and invited Dougherty to respond. After receiving Dougherty’s response, the three-person ethics committee issued a 49-page report which concluded Dougherty had given testimony that “was not objective, not well supported by past experience or experiment and reflected either seriously flawed science or was a deliberate attempt to mislead the court.”

The report was sent to the then-AFTE president, who wrote Dougherty to give him an opportunity to “address the complaints brought forward by Mr. Haag,” at a “special hearing” of the board at some indefinite time in the future.

The association sent Dougherty a 34-page preliminary report at his request, and set a date for the special hearing. A letter informed him that AFTE’s board, its legal advisor, and at least one representative of the ethics committee would be present at the hearing.

Dougherty testified at the hearing, along with two other experts who had been aligned with the State of Louisiana in Clark’s case. Dougherty also responded to detailed questioning by the board members.

After the board voted unanimously that the ethics committee’s conclusions were well founded and the board voted 8 to 1 in favor of expelling Dougherty, Dougherty requested an appeal before the association’s general membership.

The association and Dougherty’s attorney negotiated the protocols to be used at the meeting regarding Dougherty’s appeal, which again allotted Dougherty 45 minutes, with an option to have an additional 30 more minutes if needed to call witnesses.

He used only 10 minutes of his time and called no witnesses. A lengthy question and answer session was held afterwards, and then voting commenced by secret ballot, in which a supermajority voted to sustain the sanctions against Dougherty.

Association members then voted concerning the actual sanction to be imposed.

Without Dougherty’s vote, there would have been enough secret ballots to expel Dougherty from AFTE, but Dougherty was allowed to vote in his own favor, resulting in him only being censured.

Dougherty later sought a writ of mandate to overturn the censure, which Orange Superior Court Judge Daniel J. Didier denied.

Writing for the appellate court, Presiding Justice David G. Sills affirmed, explaining that the “common law right of fair procedure” applies to “gatekeeper” organizations that govern the right to practice a lawful trade or profession, and requires that such an organization provide its members with adequate notice of the charges against them and a fair opportunity before enforcing its disciplinary rules.

However, he said, courts will not interfere with an organization’s disciplinary determinations unless it appears that the accused has been denied a full opportunity to defend himself and the organization has not exercised its powers fairly and in good faith.

Summarily dismissing Dougherty’s contentions as a “series of petty cavils” in light of the “ocean of due process” that AFTE afforded him, Sills noted that the AFTE had “the gumption to censure a member whose testimony bordered on the ludicrous—roughly the equivalent of saying that a shotgun can shoot at a right angle,” then “painstakingly” gave Dougherty multiple opportunities to explain himself.

“[T]hey didn’t deserve a lawsuit, they deserve a medal,” he concluded.

Justices Richard D. Fybel and Raymond J. Ikola joined Sills in his opinion.

The case is Dougherty v. Haag, 08 S.O.S. 4571.


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