State’s top expert witness in DWI cases sent packing by judge
By Phillip Bantz
The Daily Record Newswire
When it comes to helping prosecutors convict drunk drivers, Paul Glover is The Man. Trial courts all over the state have allowed him to take the stand and provide testimony in hundreds of DWI cases. In fact, no judge had ever excluded him as an expert in alcohol testing — until earlier this month.
Judge Julia S. Gullett, a former assistant district attorney and newcomer to the Superior Court bench, set the criminal defense bar abuzz on Dec. 6 when she ruled that Glover, who heads the alcohol branch of the N.C. Department of Health and Human Services, could not testify as an expert during a DWI trial in Rowan County.
The jury, which included a police officer, went on to acquit the defendant, Aggrester E. Bell, who had blown a .30 on a Breathalyzer after he mowed down a series of mailboxes with his pickup truck and was found passed out in his house.
His attorney, James A. Davis of Davis & Davis in Salisbury, told the jury that Bell was looking for his lost dog when he hit the mailboxes. After the search was unsuccessful, Davis said a distraught Bell returned home and chugged a pint of liquor.
The central issue at trial was whether Bell had gotten drunk before or after he drove his truck. The state had called on Glover to testify about the level of alcohol that could have been present in Bell’s system when he was driving based on the results of the breath test he took after being hauled in to the police department.
But the jury never got to hear what Glover had to say and Bell, who had several prior DWI convictions (a fact not disclosed to the jurors), was found not guilty after about 45 minutes of deliberation, according to Davis.
Expert failed the test
Not only has Glover been admitted as an expert more than 300 times, he also trains and certifies law enforcement officers on alcohol testing, and holds seminars for judges and prosecutors on forensic blood and breath alcohol physiology.
But in excluding Glover as an expert, Gullett said the state had failed to prove that his testimony was based on “sufficient facts and data,” that it was rooted in “reliable principles and methods” or that he had applied those principles and methods to the facts of the case. She also noted that Glover had come to the courtroom without any reports, studies or visual aids to support his testimony.
“The Court does not accept Mr. Glover as an expert in this case,” she wrote.
Gullett’s order stems from a controversial 2011 legislative amendment to the North Carolina Rules of Evidence. The change brought state rule 702 in line with its federal version, which follows the U.S. Supreme Court’s 1993 ruling in Daubert and raises the standard for the admissibility of expert testimony.
The state’s amended rule established a triple-pronged test for judges to consider when deciding whether to admit an expert’s testimony – and Gullett found that the Glover failed to pass that test.
“This is the state’s flagship expert for DWI,” Davis said. “If this is true about him, what does that say about the rest?”
In Davis’s view, Gullett’s order is a “bellwether of things to come.” He believes that judges will be giving closer scrutiny to forensic testimony that had been routinely accepted and that experts will no longer be getting a free ride.
“The problem with Paul Glover is that he picks and chooses from the studies he uses. The other problem is that he’s a conduit for the studies he picks and chooses from,” Davis said. “The reality is that he just gets up there and pontificates.”
But Glover shrugged off the potential implications of his exclusion during Bell’s trial. He said the order hardly indicates the beginning of a trend, arguing instead that Gullett had misapplied the evidence rule. He also had no plans to change his practices.
“What am I going to do? Am I going to quit my job tomorrow because this happened?” he said. “This is one judge in one trial court out of all the hundreds of trial courts that I’ve testified in. I’ve got a lot of cases lined up so we’ll find out what this means. But I don’t see it as a game-changer at all.”
Rowan County District Attorney Brandy Cook echoed Glover, saying that Gullett’s ruling is tied to the specific facts of one trial. She added that the order is “something we would review on a case-by-case basis for any future cases.”
‘Major event in DWI litigation’
Charlotte criminal defense lawyer William Powers said he cringed when the legislature tweaked the evidence rule and has been bracing for an order like Gullett’s. He said the previous expert admissibility standard, which let more testimony get past judges and to juries, had worked just fine.
“The standard of North Carolina had always been that we let the jurors decide what evidence to believe and our pattern jury instructions tell them such. It says they can take some, all, or none of the expert testimony,” said Powers, who practices at Powers McCartan. “Jurors still have that right, but the problem is, are they ever going to hear that evidence?”
M. Gordon Widenhouse Jr., an appellate lawyer at Rudolf, Widenhouse & Fialko in Chapel Hill who often talks in front of lawyer groups about evidence rules — Davis attended one such discussion before convincing the court to exclude Glover — said Gullett confirmed his interpretation of the amended evidence rule.
“This underscores what I think it means,” he said. “The expert can’t be the only linkage between the scientific theory and its application to the case. It’s got to be more than the expert saying that my method is reliable and applies to these facts. Something else has to say it’s reliable besides you.”
Widenhouse said he expects trial lawyers would be handing Gullett’s order to other judges, and hopes that other courts would view proposed expert testimony through the same scrutinizing lens. If that happens, and additional experts are excluded, the issue will likely end up in the appellate courts.
“This,” he said, “is what I would consider a major event in DWI litigation.”
