Expert Witness Testimony 

          Expert witnesses were required to testify at my trial because pornographic videos and 3 pictures were found on my computer.  They were not child pornography, but Detective Rod Pena and A.D.A. Tom Carroll made the sole determination that they were, and charged me with them.  No one ever verified or proved that they actually were child pornography, because they weren’t.  The images were sent to the FBI by Tom Carroll for identification & verification of the ages of the people in them.  The FBI was unable to verify the ages of the people in the images.

           At this point Tom Carroll enlisted the services of his expert,  Dr. Michael Zbiegien, Medical Director of Emergency Services at Sunrise Children’s Hospital.  Dr. Zbiegien was an emergency room doctor with NO expertise or training in determining the ages of a person.  Carroll & Zbiegien met and reviewed the images on two separate occasions before trial.  Zbiegien told Carroll that he could NOT make any determination of age on 7 of the 13 images.  With this information from his expert, Carroll should have dismissed at least 7 of the 13 images charges, as he had no proof, let alone proof beyond a reasonable doubt, that they were actually child pornography.

          Instead of honoring the oath he took to uphold the law, Carroll attempted to by-pass the use of his expert when he told Judge Jackie Glass that he couldn’t find his expert shortly before trial.  Carroll asked Judge Glass that no experts be required to testify at trial.  My attorney reminded Carroll that, without expert testimony confirming the ages of the people in the pornography, the charges would have to be dismissed.  Judge Glass agreed and had also told Carroll that she would expect his expert to explain the differences between a 16 & 17 year old.  Carroll would have to produce his expert at trial.Tom Carroll still had the opportunity to do his job, according to the oath he took to uphold the law, by dismissing the charges he could not prove and didn’t know to be true. 

Nevada State Law (NRS.199.200)

          Every unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false. 

          Tom Carroll chose to subvert the law and ignore his oath by bringing charges to trial that he knew he could not prove and were not true.  Worse still, Carroll violated another Nevada law when he did not provide us with a copy of his expert’s report 21 days before trial. 

Nevada State law (NRS.174.234)

          The party who intends to call an expert witness shall file and serve upon the opposing party, not less than 21 days before trial, a copy of all reports made by the expert.  

          Tom Carroll met with his expert one week before trial for the second time.  Carroll never told his expert to prepare a report and subsequently never provided me with a copy, as the law dictates.  Why did Carroll violate the law and not have his expert make a report?  Because, had my attorney received a report from his expert as the law requires, he would have submitted a motion to dismiss the pornography charges.  Tom Carroll’s expert testified at my trial that he couldn’t medically or scientifically verify the ages of the people in the images.  This means that all of those charges should have been dismissed and never have made it to trial.  Tom Carroll knowingly violated the law to ensure those charges did make it to trial.

          My attorney objected to Carroll’s expert testifying at trial as the law requires a report to be provided to us.  My attorney cited the law Carroll violated to Judge Glass (NRS.174.234), but she was determined to help Tom Carroll convict me, so she ignored the law and allowed the D.A.’s expert to testify. Then, after only a few questions to the D.A.’s expert by my attorney, Judge Glass stopped the trial, took all of the attorneys into her chambers and announced that she was overruling herself!!  This is unheard of as neither the D.A. nor my attorney asked her to do so.  Judge Glass had now taken it upon herself and decided that no experts would be needed.  This was completely contrary to her ruling before trial that an expert would be required.  Why the change of ruling and why now?  Because my attorney asked this question to the D.A.’s expert: 

          Q. “Isn’t it true that the only way that we could determine how old a person is, is by either being present at their birth &/or knowing what their birth certificate says?” 

A. “Their actual years and days, absolutely.” 

          This meant that none of the pornography could be proven and should have been dismissed. 

          Judge Glass again chose to ignore the oath she took and instead, showed a blatant disregard for the law by overruling herself in another clear attempt to help Tom Carroll convict me.  She later told the jury that they could ignore the experts and determine for themselves whether or not the people in the pornography were underage.  This is the equivalent of allowing a jury to compare fingerprints or DNA instead of an expert doing so.  Proof beyond a reasonable doubt?  Not in Las Vegas, and not in Judge Glass’s courtroom! Click on Judge Jackie Glass’s tab and/or Tom Carroll’s to read more about their blatant disregard for the law. 

          When Tom Carroll questioned his expert, he asked him if he “believed” the people in the images were underage.  Not if he knew or could prove this.  Here are some of the experts answers to the D.A.’s questions: 

“My overall feeling is…”

“I would not feel comfortable giving a guesstimation…”

“I believe…”

           The D.A.’s expert answered “No” or “Not enough information to make a determination” 9 different times on 7 of the 13 images.  Tom Carroll also asked his expert to give an “approximation” of their ages.  None of this is proof or certainty of age.  Definitely NOT proof beyond a reasonable doubt!  Would you want an expert to say I think the fingerprints or DNA match?  Neither would I!!  

          When my attorney questioned the D.A.’s expert, he admitted that there are no medical or scientific methods, reports, or literature stating or explaining that the age of a person could be determined by merely comparing them to another person.  Tom Carroll’s expert’s opinion was simply that.  An opinion, not fact.  It was not based on any medical or scientific criteria.  And that is why Tom Carroll did not want to have to bring an expert to trial.  He knew he could not prove these charges but wanted to prejudice the jury with the mere mention of them.  After hearing the D.A.’s expert testify, Judge Glass too, knew that the charges could not be proven, so she ruled that the experts could be ignored.  Just another clear example of Judge Glass’ bias and willingness to do whatever necessary to help the D.A. convict me.

          The D.A.’s expert testified that he had never viewed an adult website and was unaware that women shave their pubic area.  He was also unaware that adult websites hire and show women that look younger than 18 even though they actually are 18 years old or older.  He based his opinions on the fact that some of them looked young and had no pubic hair, even though they had developed breasts. 

          The images were NOT child pornography and Tom Carroll knew this.  Before trial, he desperately tried to get me to accept one of his plea deals, as he couldn’t dream that Judge Glass would help him make his case as she repeatedly did.  Tom Carroll knew early on that the images were not of underage people, because he tried a feeble ploy to keep my attorney and me from seeing them.  He notified us that we could not have a copy of the images because that would be distributing child pornography.  The law states that you are entitled to see all evidence before trial.  Tom Carroll’s desperate attempts to keep us from seeing the images and keep his expert out of court and from testifying make it clear that he knew that they were not child pornography.  

          Judge Glass blatantly ignored Nevada law and allowed the D.A.’s expert to testify without providing a report.  Then she overruled herself and instructed the jury to ignore the experts and decide for themselves about the pornography. 

          Again all of my trial transcripts, motions and hearings are public record which you can order form the Clark County Courts. Decide for yourself.  Here are actual questions and answers between my attorney and the D.A.’s expert from my trial. 

Q. Did you prepare a report?

A. I was not asked to.

Q. And you said that what you did is you looked at and compared the body size of a female to male?

A. Yes sir.

Q. Can you show me scientific literature as a pediatrician that says a way to determine age is by comparing a male to a female?

A. No sir.

Q. There isn’t any is there?

A. No. No sir, there is not.

Q. So that opinion you just rendered, is not based on any objective scientific or medical evidence, is it doctor?

A. Correct.

Q. And we already determined that a number of your opinion based determinations are non-scientific observations by you?

A. Yes, sir.

Q. Is there any scientific study that you consulted before you came to court that gave you what the age range would be, so that you could render this opinion?

A. No sir.

Q. Have you looked at any scientific report that would give you any objective scientific way to determine these ranges of age?

A. No sir.

Q. And there isn’t any, is there?

A. No sir. There have been some in the past that have been found to be not true.  There hasn’t been any scientific evidence that says, based on a certain particular size or level of Tanner Development you can age somebody.

Q. You cannot say to reasonable degree of medical certainty the ages of anyone in these clips, correct?

A. I have no medical basis to determine that. 

          The expert I hired and brought to trial, Dr. Charles Hyman, is a board certified pediatrician in charge of the evaluation of children being abused or neglected, which includes sexual abuse.  Here is what he had to say quoted straight out of my trial transcripts.

          I’m certainly not in favor of anyone who hurts children in any way, or exploits them.  My mandate here was to give you the medical evidence on dating, and how you can do something chronologically.  I don’t know anything else about this case.  I am only here to tell you what is known scientifically and medically to try to put forth the knowledge for your evaluation when you make your decisions.

Q. And once again, what is your opinion?

A. There is no way by looking at these little clips that you can say accurately the chronological age of those models.

Q. Doctor, when you come in and testify as an expert, you testify as a medical expert, isn’t that correct?

A. That’s correct.

Q. Is it possible for a medical doctor testifying to a reasonable degree of medical certainty to do so?

A. Based on those visual clips, there is no way that you can objectively, that one can accurately state what age these models were.

Q. Is there a way, without knowing a person’s birth date, to view a clip or a photo and determine their chronological age?

A. No. 

          Both my expert and the D.A.’s expert testified that there is no way to determine the ages of the people in the images.  This is why Tom Carroll didn’t want to provide my attorney and me with a copy of the images, he didn’t want to use his own expert after hearing what he had to say, he didn’t provide us with a report telling us what his expert would testify to, and also why Judge Jackie Glass changed her mind, overruled herself and decided that the jury could ignore the experts.  All to convict me on false charges that could never be proven and were never proven.

          It was not child pornography. It was not proven by the FBI. The allegations of child pornography were first used to force me to accept a plea deal.   And when that failed, those allegations were used to prejudice, confuse, and inflame the jury in hopes that they would view me as a bad person and convict me of something. Anything.  This was all done by the A.D.A. Tom Carroll for the purpose of character assassination and Judge Jackie Glass helped him at every turn.  My hope now is that the Federal Courts aren’t as biased and lacking in integrity as the Nevada  Courts have been.