Saturday, February 9, 2008

Expert Testimony

"I'm going to show you what comes out of Nancy Kellogg, prosecution witness, testifies for them repeatedly, repeatedly, repeatedly. I'm going to show you that she can turn anything -- anything into sexual abuse. God, if you have a C grade and you drop from an A to a C .... that could be child abuse. That's how ridiculous. I'll show you through vicious cross-examination of her what this case is about."
Freddie Ruiz - Elizabeth's Defense Lawyer

At Elizabeth Ramirez' trial, and the trial of the other three women, no expert witnesses were called to testify for the defense. The only expert witness called by the prosecution was Dr. Nancy Kellogg, a pediatrician who had examined the girls on September 28, 1994, approximately 8 weeks after the alleged incidents. As Freddie Ruiz pointed out in his opening statement at Liz' trial Dr. Kellogg testifies as a prosecution witness on a regular basis. She was the medical director of the Alamo Children's Advocacy Center. Dr. Kellogg is what is referred to in legal circles as a "child saver", for whom the business of providing favorable expert testimony for the prosecution is a lucrative source of income. Questions have been raised in other trials regarding the quality and objectivity of Dr. Kellogg's testimony.

At Elizabeth's trial Dr. Kellogg was fully prepared to testify this was a case of cult-related or Satanic-related sexual abuse as she concluded in her written report. It was only a written objection to the Judge that prevented her testifying as such in front of the jury.

Dr. Kellogg took a "history" from the two girls that was in fact nothing more than their story of the alleged incident. The version they told Dr. Kellogg differed on several key factors from what they had told the outcry witness, their father, in the police report and at the trials. Based on their demeanor, which Dr. Kellogg described as "guileless", she accepted their story at face value and testified to the jury that she found them very believable. Although Dr. Kellogg specifically names Elizabeth and the other women in her report, she made absolutely no effort to contact them to verify this information. By doing so she has in fact made a diagnosis on someone she has never seen.

The point of contention focused on during cross-examination by Freddie Ruiz was Dr. Kellogg's claim of finding a "scar" that was 2-3 millimeters in length at the 3 o'clock position on V.L.'s hymen. Kellogg claimed this was evidence of penetration, although she could not date the time that the alleged scar was formed, or the object that might have created it. Outside of those with scientific training or some aspects of the military, most Americans are completely unfamiliar with the metric system. Describing a scar as being 2 to 3 millimeters would have little or no meaning. To give that description a frame of reference using everyday objects; a quarter has a thickness of 2mm. and a pencil lead 3mm. This was a very small scar Kellogg claimed to have seen.

What no one bothered to question was whether the scar in fact actually existed. Dr. Kellogg claimed she took photos of the examination using a colposcope, but when requested, failed to produce copies of those photos for a defense' medical expert to verify her findings. It is not uncommon for medical professionals to disagree over a diagnosis such as this one. There have also been serious disagreements with respect to exactly what constitutes normal anatomy in prepubertal children, and what is indicative of sexual abuse. There are also questions as to whether a pediatrician is the most appropriately trained medical professional to make this type of diagnosis. A pathologist would be considered better trained for this type of analysis. Yet Liz' defense lawyer did not bother to hire a medical expert of any description to contest Dr. Kellogg's testimony. Dr. Kellogg herself must have had some doubts about the "scar" she claims to have seen, as during the actual examination she describes it as an "irregular white area" and only on the final page of her report does this finding morph into a "hymenal scar, consistent with vaginal penetration".

Another aspect of Dr. Kellogg's medical testimony that was not revealed at Liz' trial was the fact that Javier Limon, the girls father, had brought them to the Alamo Children's Advocacy Centre several years previously, claiming that they had been sexually molested by a 10-year-old boy while living with their mother in Colorado. He demanded that the girls be examined by a doctor for physical evidence. The doctor who examined the girls found no evidence of sexual abuse. Javier had previously claimed that another member of the boy's family had sexually abused the girls while trying to get custody of them from their mother. He backed down on that claim when vigorously challenged by family members to provide evidence for those claims.

The prosecution had a copy of the medical report from the first examination of the girls, but this was never introduced at Liz' trial. This evidence could have established several things. First, that the girls knew what sexual abuse was, and that they may have been sexually abused previously. Secondly, it could have established to the jury that the girl's father had a history of making unsubstantiated claims of sexual abuse against his daughter's when he had a dispute with someone. Prosecutor Phillip A. Kazen Jr. claimed that the report of the first claim of sexual abuse was in the file of discovery materials, but that "Freddie missed it". Defense lawyer Ruiz claims the report was not in the file. Regardless, this was information that could have discredited Dr. Kellogg's testimony, and had a significant impact on the outcome of Elizabeth's trial. Had the case been properly investigated, and had the appropriate expert witnesses testified on Liz' behalf as part of a vigorous defense, she may well have been found not guilty. Instead of providing these resources Freddie Ruiz told Liz' not to worry because the onus was on the prosecution to prove that she was guilty, and he relied on his ability to effectively discredit witnesses through cross-examination - despite the fact he had no experience in criminal trials.

It is profoundly sad to think that Liz may be spending 37 and-a-half years in prison because the cost of hiring expert witnesses and an investigator cut into someone's profit margin.


Amy said...

I was locked up with Liz, and it is wrong for that sweet girl to be there...just started reading your blog.

Anonymous said...

Almost the exact same thing happened to our family. Dr Kellogg testified that a tiny scar proved penetration and bad behavior at school proved my step-daughter had been sexually molested. Even though the exam was months after the supposed occurance! It's not fair that she has so much power to destroy families. Not every case of abuse is legit. Some men are innocent (and women). She needs to be held accountable for all her false testimonies.

Anonymous said...

Correctly your article helped me very much in my college assignment. Hats high to you enter, will look ahead in the direction of more interrelated articles soon as its sole of my pick issue to read.

Anonymous said...

Dr, Kellogg is very well respected in her field. She knows her subject and what is abnormal. I would love to study under her.

Anonymous said...