Failing Daubert, Fla. Manslaughter Conviction Reversed
Failing to meet Florida's newly adopted Daubert standard, a 30-year conviction for vehicular manslaughter has been tossed and a new new trial ordered by the 4th District Court of Appeal which found the prosecution's expert witness provided “little more than a subjective and unverifiable opinion.”
Update: On November 22nd, 2019, the Florida Attorney General filed a brief asking the state Supreme Court to hear the case, arguing that the appeals court did not properly apply the Daubert standard. Later, he also asked the justices to stay the lower-court proceedings. In part, the Attorney General argued:
Here, the Fourth District adhered to a rigid approach, robotically applying the factors set forth in Daubert in order to exclude evidence rather than employing a flexible approach to permit the jury to weigh the testimony.
In Jabari Kemp v. State of Florida, 15-3472 (Fla. Dist. Ct. App. 2019), Jabari Kemp appealed his manslaughter conviction in a high-speed crash that killed five people in 2013. Kemp had been speeding down a curved exit ramp in his Mercedes coupe, ran a red light and crashed into the victims' Lexus sedan at an estimated 128 mph. When paramedics arrived, Kemp was awake but was “mostly in and out of consciousness.” Kemp had to be extricated from his vehicle. The five young people in the Lexus died.
Kemp claimed that he had fainted before the crash, a mitigating factor in vehicular manslaughter. The prosecution tried to prove otherwise, proffering the testimony of their accident reconstruction expert witness, Florida Highway Patrol Corporal Robert Dooley, who testified that Kemp had applied the brakes before the crash. If he applied the brakes before he crashed, he could not have been unconscious at the time.
Other witness testimony was conflicted on whether or not Kemp had braked. A police officer at an unrelated traffic stop some 400 feet away “heard the sound of tires screeching on a highway”, but he did not see the accident, nor know which car made the screeching sound. The lead investigator in the case, Corporal Johnson, testified that, while he did see tire marks on the roadway made by Kemp's Mercedes, he “… explained that tire marks could be from steering input, braking, or ‘a number of factors.'” He could not say that the marks indicated Kemp was braking just before the crash.
Cpl. Dooley inspected the Mercedes and Lexus for “crush damage,” mechanical defects, tire malfunction, and damage profiles showing the angle of approach from the vehicle, how far the crush went into the vehicle, and the angle of departure. He testified that the damage to the Lexus indicated that Kemp was braking his vehicle as the collision occurred.
Dooley claimed that sometimes there is damage that indicates whether braking occurred at the point of impact between two vehicles:
When you have two cars that are relatively similar in height … , as somebody is approaching a car … they are not paying attention or whatever it is, and at the last second they brake right before impact. And the front end will dip and it will go down and it will smack the rear of the car or whatever the case is. Normally, that's from you're traveling at a speed and as you hit the brakes, center mass, the momentum is going forward so it's going to push that momentum forward causing the front end to dip.
Kemp's defense counsel had argued prior to trial that Cpl. Dooley's braking opinion should be excluded under Daubert as it was not based on any calculations and lacked “a foundation in any form of science.” At trial when Cpl. Dooley gave this testimony, Kemp's counsel immediately objected.
The trial court permitted voir dire. The court asked Cpl. Dooley if his breaking opinion was consistent “within a reasonable degree of scientific certainty with braking of the Mercedes?” Cpl. Dooley responded:
I can't tell you about the scientific — or anything about the braking of the Mercedes. What I can tell you is the overall dynamics of a car to require to have shocks and struts and all these things and if you are accelerating, the front will go up. If you are decelerating it goes down — that's all I can — I'm just telling you what it means to me.
Defense counsel got it's chance to ask Cpl. Dooley if there were any studies on this dipping effect. Cpl. Dooley responded that he was sure there was but he couldn't quote anything specific.
The court asked Cpl. Dooley if the type of downward arc he was referring to was something that was taught in accident reconstruction classes that he had taken. Cpl. Dooley responded that there were examples given in classes, but that “I can't quote you anything specific off the top of my head as to a case study or somebody who is in the know, specifically.”
The trial court ruled that Cpl. Dooley's braking opinion was admissible under Daubert as his opinion was based on his training.
The appellate court disagreed:
The expert's braking opinion was not shown to be based upon sufficient facts or data, was not shown to be the product of reliable principles and methodology, and amounted to little more than a subjective and unverifiable opinion.
It was a 2-1 decision. In her dissenting opinion, appeals-court Judge Melanie May argued that Dooley's years of training and experience in investigating accidents were sufficient to meet the Daubert standard, writing: “there can be no doubt that Corporal Dooley was an expert in accident reconstruction.”
In many other Daubert jurisdictions, being an expert is insufficient to meet the standard, the expert's testimony has to be backed up by some methodology, not just telling the court “what it means to me.”
And that is essentially what the majority opinion concluded. In his concurring opinion, Judge Cory Ciklin wrote that, while the accident was an “unimaginable nightmare” killing “innocent victims doing nothing else but going about their lives,” a new trial was required because Cpl. Dooley's testimony not shown to be “based upon legally sufficient facts or data that met the reliability and admissibility requirements” of the Daubert standard.
Judge Ciklin wrote that he believed the state could ultimately be able to present the testimony and evidence to convict Kemp, but that “we have no choice but to hold that the state did not meet its burden …. The gravity of our ruling does not escape us.”
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