Expert witness faces challenge

Wendy Dutton, a forensic interviewer at St. Joseph's Hospital in Phoenix, has misled attorneys and jurors for years about her academic credentials, Tucson attorney Dan Cooper says.

Prosecutors deny that claim and support her continued testimony, and Dutton herself declined to comment.

Speaking through Kimberly Lodge, director of communications at St. Joseph's Hospital, Dutton said it would be inappropriate to comment because Cooper's court motion on the matter is still pending.

Cooper claims Dutton has repeatedly told jurors she either expects to complete her Ph.D. "within the year" or is "working on her dissertation." Even though Dutton entered Arizona State University's Ph.D. program in 1992, she is nowhere near completing it, he said.

In fact, Cooper says, Dutton not only hasn't taken her comprehensive exams, she hasn't had a committee — which must approve the subject of her dissertation before she can write it — since 1998.

Cooper recently filed motions asking the judges in the Troy Taylor and Netzahualcoyotl Ramos child sex crimes cases, in which he represents the defendants, to prevent Dutton from testifying. "A witness who would repeatedly embellish is biased, a zealous advocate, and not a dispassionate, objective observer," Cooper wrote.

Prosecutors Shawn Jensvold and Nicol Green, in their written response to the motions, argue Dutton should not be precluded from testifying.

"Even if the defendant were correct that Ms. Dutton has exaggerated her academic or professional credentials — a claim the state denies — preclusion of Ms. Dutton's testimony is not the appropriate remedy," they wrote.

Instead, Dutton should be allowed to testify and Cooper can simply cross-examine her aggressively, they said.

Dutton has been unable to finish her Ph.D. because she's been taking care of her elderly parents, the prosecutors wrote.

Chief Criminal Deputy County Attorney David Berkman declined to comment specifically on Dutton's credentials, but said when someone says they are "working on their dissertation," that could mean they are "formulating their ideas."

Pima County Attorney Barbara LaWall said in a written response that professional ethics prevent her from commenting on any witness' credibility or testimony when cases are pending.

However, LaWall said, not all expert witnesses have doctorates.

An expert may be declared an expert based on formal studies, specialized training, experience in the field or any combination of the former, LaWall said. Experts who testify in child sexual abuse cases could be therapists, social workers, trained police officers, etc.

"Having academic credentials (Ph.D.) does not necessarily make an individual a better qualified expert witness," LaWall wrote. "Often a person with real life, hands-on experience, skills in a specialized area and training is preferred over an academician."

Among the questions LaWall declined to answer:

● Does the Pima County Attorney's Office have a policy on finding expert witnesses?

● Does the office have a policy on conducting background checks on expert witnesses?

● How are credentials verified?

● At what point did the office realize Dutton had been working on her Ph.D. for 14 years?

● Does LaWall believe the fact Dutton has been working on her Ph.D. for so long is an issue in terms of her credibility?

Dutton typically testifies about why children wait for months or years to report sexual abuse and why they recant — things that jurors may have a hard time with, Cooper said.

According to Dutton's résumé, judges in 10 Arizona counties, the U.S. District Court of Arizona and various counties in Nevada, Oregon and Montana have qualified her as an expert witness.

According to an interview Dutton gave Cooper, she has been testifying approximately 12 to 24 times a year since 1992.

When Dutton isn't testifying, she works in St. Joseph's Hospital's Child Abuse Assessment Center, interviewing children who may have been abused. She says in her interview with Cooper that the $120 an hour she gets for testifying goes to the hospital and she earns a salary from the hospital.

The importance of experts like Dutton is incalculable, said defense attorney Rick Lougee.

"In a case where you have a 9-year-old saying 'My stepdaddy did this' and there's no physical evidence, Wendy Dutton would put the state over the edge," Lougee said.

Dutton is currently listed as a "cold" witness in five of his cases, Lougee said. A cold witness testifies about their field of expertise without knowing anything about the case in advance, thus making it appear they don't have a vested interest.

"Dutton is the state's general fix-it person; she takes on whatever mantle the state needs," Lougee said. "They list her as an expert before they even know what the case is about."

Deputy Public Defender Walter Palser saw Dutton in action just last month.

Dutton testified at the trial of a Tucson man accused of keeping his 14-year-old daughter locked up for more than a year and sexually abusing her.

Palser asked for the trial to be delayed so he could investigate Cooper's allegations, but the motion was denied, partly because he found out about Cooper's allegations at the last minute and filed his motion late. Also, Judge Frank Dawley felt Palser could cast doubt on Dutton's credentials through cross-examination, Palser said.

His client was convicted and if Cooper is victorious, Palser said he intends to bring up his failed attempt at a postponement and to argue Dutton's credentials may have unduly swayed the jury, in his appeal.

"When you have an expert who testifies the symptoms of sexual abuse range from nothing to very serious, the jury is left to draw the conclusion that 'Oh, the guy must have done it,'" Palser said.

If either Judge Charles Sabalos or Judge Stephen Villarreal grants Cooper's motion, "it could open a can of worms," said Frank Leto, a Pima County deputy public defender.

If the judges find that Dutton fraudulently claimed she was going for her Ph.D., it could prompt defense attorneys to ask for new trials based on newly discovered evidence, Leto said.

Whether those new trials would be granted, however, could depend upon other details of the case — such as whether there was physical evidence proving the defendant's guilt or compelling evidence from other witnesses, Leto said.

There's a huge difference between a person falsely claiming they are a medical doctor or a lawyer and someone who has miscalculated how long it would take to get their Ph.D., said Paul Logli, president of the National District Attorneys Association.

"If they are still doing things to get their Ph.D., I think the defense attorney may be splitting hairs," Logli said.

The judges could decide the witness hasn't lied and is still able to lend "legitimate assistance" to the jury, Logli said.

"Then it becomes your classic battle of the experts," Logli said.

Both retired Pima County Superior Court Judge Robert Donfeld and Logli said defense attorneys often attack expert witnesses simply because they are effective.

"They might be the top dog in their field and the (argument about their credentials) could be a red herring," Donfeld said.