The U.S. Supreme Court in June 1992 established the “Daubert Rule” in its landmark decision Daubert v. Merrell Dow Pharmaceuticals. The Rule created the evidentiary premise that scientific testimony, including the testimony of “medical experts,” is admissible so long as it is both “relevant” and “reliable.”
Under the Daubert Rule, after a trial court finds that scientific evidence is relevant, the court becomes the “gatekeeper” in determining whether the testimony supporting that relevant evidence is reliable. The court uses four primary internal checks and balances spelled out in Daubert to make the relevance/reliability determination.
Concerning medical expert testimony, Opinion 9.07 of the American Medical Association’s Code of Medical Ethics states: “Medical experts should have recent and substantial experience in the area in which they testify and should limit testimony to their sphere of medical expertise.”
“As stated in AMA’s Council on Ethical and Judicial Affairs (CEJA) Opinion E-9.07 (AMA Policy Compendium 1998) a physician as a citizen and as a professional with special training and experience has an ethical obligation to assist with the administration of justice. At the minimum, the physician must not become an advocate or a partisan in the legal proceeding, should be adequately prepared, and should testify honestly and truthfully. Additionally, the physician as a witness should inform the attorney for the party who calls the expert of all favorable and unfavorable information developed by the physician’s evaluation of the case and should not accept compensation that is contingent upon the outcome of the litigation.”
Simply put, physicians who testify as experts must comply with the Daubert Rule and adhere to their strict code of medical ethics when giving expert testimony.
That’s not what happened in the case of Thomas Rhodes, a 63-year-old man recently released after spending 25 years in the Minnesota prison system based on flawed medical expert testimony.
The core facts in the Rhodes case was never in dispute.
In 1996, he and his wife, Jane, took a boat ride on Green Lake in Spicer, Minnesota, and she drowned.
It is what happened next that brought about the legal dispute.
Rhodes told authorities his wife fell out of the boat, and he tried frantically to find her in the dark. He was unable to do so. There were no eyewitnesses or physical evidence to dispute Rhodes’ account.
The local district attorney, however, did not believe Rhodes. He sought and secured a murder conviction in 1998 against Rhodes.
That conviction was based almost entirely on the expert medical testimony of Dr. Michael McGee. This so-called “medical expert” convinced the jury that Rhodes grabbed his wife by the neck and threw her overboard, after which he ran over her several times with the boat.
How the trial court determined that this testimony describing events without any underlying factual support, was relevant and reliable under the Daubert Rule is anyone’s guess.
Dr. McGee’s testimony in the Rhodes case was the first of several cases in which Dr. McGee, the former Medical Examiner in Ramsey County, Minnesota, passed “guessing” testimony off as expert medical testimony.
U.S. District Court Judge Ralph Erickson drew this conclusion in 2021 after he threw out a federal death sentence against a North Dakota man, who was sentenced to the ultimate punishment based on Dr. McGee’s testimony. In a 232-page ruling, District Judge Erickson wrote that McGee’s testimony had been “unreliable, misleading and inaccurate,” and that he was “guessing on the witness stand…and his opinions were not scientifically supported by literature or any other expert who testified at trial.”
What saved Rhodes from dying in prison is that in 2021 the Minnesota Attorney General’s Office created a “Conviction Review Unit” (CRU). At the urging of the Great North Innocence Project, the CRU decided to take a second look at Rhodes’ conviction. It can reasonably be assumed the decision to do so was influenced by Judge Erickson’s finding that Dr. McGee had a history of providing “guessing” testimony presented as expert medical testimony.
The Innocence Project and the CRU had nine independent pathologists to review the Rhodes case. Each found that Jane Rhodes’ head injuries were caused by her fall or possibly from an unintentional hit from the boat as Thomas Rhodes searched for her.
Not one of these experts would have called her death a “murder, as Dr. McGee did.
The CRU successfully moved the trial court to vacate Rhodes’ murder conviction and negotiate a plea to second-degree manslaughter. That charge was based on Rhodes’s negligence in taking an unsafe boat out on the lake and improperly handling it—no life jackets, flashing lights, or means to communicate for help.
Rhodes was sentenced to four years, given credit for time served, and walked out of prison on January 13, 2023, to his two waiting sons and other family members.
He lost 25 years of his life because a court determined that a Dr. McGee was a “medical expert” and that his “guessing” testimony was relevant and reliable.
Thomas Rhodes was negligent. He admitted as much but did commit murder, as nine independent pathologists concluded.
The Rhodes case is a valuable lesson to criminal defense attorneys: do not rely solely on cross-examining prosecution “expert” witnesses to test the reliability of their professional credentials and the validity of their opinions. Try to discover a pattern of testimony in other cases to find prior testimony and the strength and reliability of underlying facts and data relied upon to support that testimony. Consult with a defense expert to evaluate the opinion. In the proper case, present a defense expert to contradict the findings and conclusions.