Thursday, September 29, 2016

Call the Expert

The last couple of weeks has found Prosecutors and the Justice Department reject White House findings on Junk Science, the truth about lie detectors and it appears that with last years' exonerations hitting 3 a week, we may well be close again this year. Which is telling that junk science, misconduct and expert witness testimony are all part of the problem and not the solution that we once believed.

Which brings me to the story below. I laugh at the reliance on experts, both civil and criminal, as a way of convincing the Judge and/or Jury that my expert is better than you expert and as a result my client or defendant is innocent/guilty or deserves money. And that adds costs to the case, requires immense knowledge on the part of the Attorney's and Judges to ensure their testimony is legitimate and knowledge based and that requires vetting. Clearly none of that existed in this case. But does it ever?



Defrocked expert witness in child sex cases 'squeaked by' with little vetting

By Tony Marrero, Times Staff Writer
Tampa Bay Times
Saturday, September 24, 2016

Chester Kwitowski of Tampa is charged with five counts of lying under oath about his educational background, professional certifications, military service and time spent working on sensitive government projects.

Josh Adams thought he'd found a solid expert witness for his client.

The Orlando lawyer was representing Jason Eugene Daniels, who faced more than a dozen felonies involving sexual abuse of a child. Adams said Daniels' cellmate William Teets had mentioned Chester Kwitowski, who had already appeared as computer forensics expert in other Polk County cases including Teets'. Adams called Kwitowski and asked for his resume.

"He certainly seemed very confident and knowledgeable, and I never had any reason to be suspicious," Adams said Friday.

But when Adams put Kwitowski on the stand in a Polk County courtroom, the story his resume told began to unravel. A Polk sheriff's detective appearing as an expert witness for the prosecution grew suspicious about inconsistencies in Kwitowski's qualifications and the agency launched an investigation.

On Thursday, the 57-year-old Tampa resident was arrested in Polk and charged with five counts of lying under oath about his educational background, professional certifications, military service and time spent working on sensitive government projects. He specialized as a defense witness in cases involving sexual abuse and child pornography.

The Tampa Bay Times found another apparent inconsistency. Kwitowski claimed to have held "information technology and systems support contracts" with the Hillsborough County Clerk of the Circuit Court and the County Administrator's office. Those offices report no record of any contracts with, or payments made to, Kwitowski or his company, Brightside Enterprises.

Legal experts say the case exposed a breakdown in a judicial system that aims to uncover the truth.

"Somehow or other this guy squeaked by," said Jack Townley, president of the Florida chapter of the Forensic Expert Witness Association. "It's hard to believe he went as far as he did without someone getting after him or attacking his credentials."

• • •

Kwitowski's resume states that he has testified as an expert witness on more than 50 occasions in Pinellas, Hillsborough, Pasco and Polk counties. At a news conference Thursday, Polk County Sheriff Grady Judd said detectives were uncertain whether that was true.

It's also unclear when Kwitowski first testified as a witness. Whenever it was, that first case gave him instant credibility that made other attorneys less likely to thoroughly vet his credentials before hiring him, said Townley, the FEWA president.

"Once you can prove you've been accepted as a witness in court and have verifiable testimony as an expert, an attorney is less likely to go through the process," Townley said. "Every hour an attorney spends vetting somebody costs their client."

Anyone who wants to be an expert can pay to be listed on a website like JurisPro or SEAK Inc. Those sites don't vet backgrounds, Townley said. FEWA has its own directory and verifies court experience but does not check education or certifications.

The pay for appearing as a witness can vary widely depending on field of expertise and experience. Aaron Weiss, an expert in computer forensics who has testified in several trials in Florida, said he charges $275 per hour.

Once the attorney hires the witness to testify, opposing counsel can and should do their own vetting, said John Fitzgibbons, a former federal prosecutor who has worked as a defense attorney in Tampa for the last 25 years.

"The side that retains the expert wants to make sure they have a competent and capable witness who isn't going to get clobbered on the witness stand," Fitzgibbons said, "and if you're on the opposing side, you want to attack the credibility of the witness, so there's a built-in motive on each side to learn something about the expert."

Kwitowski had been arrested three other times in Florida, all between 2001 and 2007. He was acquitted in one case and the charges were dropped in two, including a Pinellas charge of making a false report of a crime.

Prosecutors routinely ask witnesses if they've ever been arrested and Kwitowski was forthcoming about his arrest history in a prior deposition, said Brian Haas, chief assistant state attorney for the 10th Judicial Circuit, which includes Polk County.

"But since he hadn't been convicted there was nothing we could do," Haas said.

Haas said it's not financially feasible for his office to check every witness' resume. The system ultimately worked and caught Kwitowski, he said, though "maybe not as quickly as everybody would have liked."

"This man committed a crime and we can't lose sight of that," Haas said. "This isn't a mistake or an error. He intentionally misled a whole lot of people interested in seeking the truth and doing their jobs."

• • •

St. Petersburg defense attorney Frank Louderback hired Kwitowski to testify at the 2008 sentencing hearing of Ronald Mays, a Palm Harbor businessman accused of sexually abusing a young girl. The sex charge against Mays was dropped, but he was sentenced to probation for erasing computer files hours before his arrest. Kwitowski testified about the software Mays used.

Louderback recalls that Kwitowski had testified in other cases before Mays.

"I don't remember going through and qualifying him other than putting him up as a previously accepted expert," Louderback said. "He wasn't just a new guy on the block."

That's why Adams, the Orlando attorney, trusted Kwitowski. The court system, Adams said, "is an adversarial system, so you assume if something an expert witness has said is not true that someone is going to find it."

Another factor: Kwitowski was working as a vendor for the Justice Administrative Commission, which provides expert witnesses for indigent clients. Vendors work for lower than the market rate. Adams said Kwitowski was being paid $150 an hour for his services and travel expenses.

A spokeswoman for the commission was not available Friday.

Adams' client, Daniels, was convicted of several counts and faces a mandatory life sentence. He said he will likely seek a new trial on the grounds that Kwitowski's alleged lying under oath compromised the case.

Haas, the Polk chief assistant state attorney, said the cases Kwitowski testified in are strong enough for the convictions to stand without his testimony.

Donna Wood, a spokeswoman for Judd, said detectives were still investigating and don't yet know what motivated to Kwitowski to lie about his credentials. It could have been the money, the prestige of being called an expert, or both, Wood said. "We don't know if we'll ever have a solid answer."

No comments:

Post a Comment