Briefs filed in aggravated arson case


By Sarah Hawley - shawley@civitasmedia.com



POMEROY — Briefs have been filed regarding the possible testimony of an expert witness in the aggravated arson case against a Middleport man.

Keith R. Day, of Middleport, was indicted in late May on two counts of aggravated arson, one a first-degree felony and one a second-degree felony.

There have been numerous pretrial filings, including two motions to modify bond which have been denied by Judge I. Carson Crow, the last one in mid-November. According to court documents bond money in the case was posted on Nov. 28, more than six months after Day’s arrest, allowing him to be released from custody as he awaits trial.

The most recent pretrial filings involve a possible expert witness for the defense.

A motion in limine was filed in November by the prosecution asking to exclude a defense expert witness.

Dr. David R. Manuta is an expert witness for the defense in the case. His possible testimony was the subject of a motions hearing on Dec. 1 and the subject of post-hearing briefs filed in the days leading up to Christmas.

In the state’s brief filed by Assistant Prosecutor Jeremy Fisher, Fisher question’s Manuta’s status as a qualified expert in the case.

The state does not believe Dr. Manuta is qualified as a scientific effort regarding fire science or arson investigation. Further, should not be able to testify because he cannot meet the rest of rule 702 in an expert field, states Fisher in the document.

Dr. Manuta was not able to recall fundamental rules from the National Fire Protection Assocaition (NFPA). NFPA is the “standard” for such science according to Dr. Manuta. Yet, on cross examination he said there was not a level of cretainty or even varying levels of certainty as outlined in the NFPA Manual. Level(s) of certainty are crucial to a scientific expert testifying. It wasn’t until the state’s attorney handed him a copy to review that he realized the different levels.

Dr. Manuta has not published anything in this area in over a decade.

Therefore, Dr. Manuta, while at one time may have been qualified, he is not up to speed today and does not meet the 702(A) criteria.

The filing by Assistant Prosecutor Jeremy Fisher goes further regarding Manuta’s potential testimony on evidence in the case. Fisher stated that the circumstantial evidence in the case would be misleading to the jury if presented by an expert and rubber stamped “scientific” with no margin of error or rate of accuracy.

Dr. Manuta did not conduct an experiment nor attempt to replicate his hypothesis to test them, stated Fisher. Dr. Manuta reviewed the data and made a conclusion based on one data point, testifying that it was not a situation where he tested multiple data points to check his theory. Rather he made numerous “what if’s” and assumptions outside the data presented, stated Fisher.

Fisher also argues that Manuta’s testimony is biased in favor of the defense.

“Dr. Manuta’s scientific testing was clearly biased prior to applying the methodology. He testified that he was hired by Defense Counsel to help Defendant, paid to help Defendant, and started the scientific method with the idea to help Defendant. Scientific opinions are not supposed to have any biases prior to starting the scientific method, nor have predetermined conclusions for what they are looking for,” stated Fisher.

“Allowing Dr. Manuta to testify in this case will aid the trier of fact in this case,” states Justice in her filing. “It cannot be argued that Dr. Manuta lacks the specialized knowledge, skill, experience, training or education.” Manuta testified at length in the Dec. 1 hearing on the matter according to the filing.

“That the state disagrees with his conclusion is not a basis to exclude his testimony in the matter. That is a matter for the trier of fact to weigh at trial,”

The state will concede that Dr. Manuta is qualified as an expert to testify in regards to Chemistry and/or Thermodynamics as required by Rule 702(A). However, the court should bar Dr. Manuta from testifying completely. In the alternative limit his testimony drastically, concludes FIsher.

Defense attorney Karyn Justice argues that Manuta is qualified and should be allowed to testify. “Dr. Manuta is an expert witness qualified to testify in this case. The essence of the State’s argument to exclude him goes to the weight of the testimony, which is a matter for the jury to consider at trial in this case. Dr. Manuta’s proffered trial testimony meets the requirements of Ohio Evidence Rule 702.” She therefore asks that the court deny the motion of the state.

By Sarah Hawley

shawley@civitasmedia.com

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