Forensic and medical evidence don’t supplant witness credibility in Elliott case

AP

The league’s effort to downplay witness credibility issues in the Ezekiel Elliott case hinges exclusively on forensic and medical evidence that purports to corroborate the conclusion that Elliott committed multiple acts of domestic violence against Tiffany Thompson in July 2016. But the forensic and medical evidence in no way trumps the core question of whether Elliott or Thompson is telling the truth.

Specifically, the NFL believes that “metadata” information retrieved from Thompson’s phone shows that photos of alleged injuries were sent to others on the dates she claims they were sent. The NFL then used medical evidence, provided by a pair of doctors, to support the notion that the injuries documented in the photos were suffered during the time that Thompson and Elliott were together.

During last week’s appeal hearing, Elliott’s representatives presented the testimony of Dr. Michael Graham, who explained that it’s impossible to determine the age of bruising from a review of photographs.

“So at the end of the day,” Dr. Graham was asked at page 105 of the transcript of the August 29 proceedings, “do you believe within a reasonable degree of medical certainty that it is reliable to age bruising based on photographs that were provided to you in this case?”

Dr. Graham answered, “No.”

“And in this case,” he was asked at page 111, “there’s no way that you or any other qualified expert can look at these photographs and age these bruises with any reasonable degree of medical certainty as to, A, when they occurred, whether it was weeks or days or an hour, and if they even occurred on the same time, things of that nature; would that be a fair statement?”

Dr. Graham answered, “Yes.”

The testimony includes a review of the conclusion reached by Dr. Lorraine Giordano, one of the two doctors who provided expert opinions in support of the league’s case. Dr. Graham noted at page 115 of the transcript that Dr. Giordano correctly mentioned in her report the problems with dating bruises based on photographs. So why did Dr. Graham have an issue with Dr. Giordano’s work?

“Because after coming up with all of the reasons why you shouldn’t do it,” Dr. Graham said, “she did it. . . . You can’t do it.”

When Dr. Giordano testified, she was presented with multiple studies that she hadn’t seen before producing her report. And as to the conclusion from these studies that it is unreliable to determine the age of a bruise based on a photograph, she admitted that she had no reason to disagree.

The other doctor hired by the league, Lone Thanning, did not testify at last week’s hearing. And an interesting exchange appears at page 349 of the transcript regarding her absence.

“[W]ith respect to Dr. Thanning’s testimony or her information and report that’s in the record, it was represented to me that she was not available to testify because she unfortunately had a medical condition and was in the hospital yesterday,” attorney Jeffrey Kessler told arbitrator Harold Henderson. “We have reason to believe that that is false. So I’m going to submit to you the declaration of a private investigator, Mr. Scott Whitlock. Mr. Whitlock will, as you’ll see in this declaration, testify that, in fact, Dr. Thanning was in her resident all day yesterday . . . and he went to her door and she answered and that he stayed there all day really into the night and she never left the residence.”

Although Kessler didn’t blame the league for this, since it’s possible Dr. Thanning didn’t tell the league the truth, she didn’t testify in person or by phone and the circumstances at a minimum invite questions about whether she was avoiding being questioned. Ultimately, the parties agreed that Dr. Thanning’s testimony would have been similar to Dr. Giordano’s — that it’s impossible to determine the age of bruises based on photographs.

So this pulls the entire case back to the question of whether Elliott or Thompson is telling the truth. Elliot testified at the appeal hearing. And Thompson has never given sworn testimony about this case (she was interviewed six times by NFL Director of Investigations Kia Roberts). And the Commissioner observed neither of them explaining their version of the events, relying on others to conclude whether Thompson is credible.

And Kia Roberts concluded that Thompson isn’t credible. And Roberts, according to Cowboys general counsel Jason Cohen, wasn’t invited to either of the key meetings regarding the case.

The question ultimately becomes, then, whether the NFL can find “credible evidence” of abuse when the league’s Director of Investigations has concluded in a dispute that turns on witness credibility that the person accusing player of misconduct is not credible. Really, how can it?

But it did. Unless Henderson scraps the suspension, this flaw in the league’s logic will become the centerpiece of the lawsuit Elliott filed on Friday.

39 responses to “Forensic and medical evidence don’t supplant witness credibility in Elliott case

  1. NFL relying on science? LMAO!! But in Brady’s case the NFL had to invent data, retrospectively apply a fineable team-offense into a player crime, then deny science, then deny the testimony of the referee as to which guages were used and when, and then destroy (er, officially “misplace”) the guages concerned so that no one could challenge the NFL’s published results. And even after NFL lawyer Nash admitted to Judge Berman they had no evidence, Brady still got suspended because a 2nd court said Fraudger had the right, regardless, to suspend as he sees fit under the CBA – and that last point is all that is relevant to Boys’ office/fans hoping Zeke wins.

  2. 345 Park Ave strikes out again.

    The problem is once Goodell makes a mistake he never admits or corrects it. He takes his screw ups to the house, the truth be dated.

    FIRE Goodell for the sake of honesty.

    Watch the rating free fall this year.

  3. It isn’t just this allegation. He got caught driving 100, physical sexual harassed a dancer by pulling her top down and also punched out a DJ. Just cuz he wasn’t convicted criminally (paid them off) doesn’t mean he shouldn’t be punished by his employer.

    He reminds me of Von Miller. Uber talented very young and totally out of control. His suspension saved his career and maybe this will help Ezekiel become a better player/man. If he gets off the lesson isn’t learned and the erratic behavior will continue.

  4. Anyone in medicine knows you can’t tell how old a bruise is or when an injury happened by the appearance of the bruise. It’s notoriously unreliable. This had been well established in forensic science.

  5. patriots123456 says:
    September 4, 2017 at 1:49 pm
    345 Park Ave strikes out again.

    The problem is once Goodell makes a mistake he never admits or corrects it. He takes his screw ups to the house, the truth be dated.

    FIRE Goodell for the sake of honesty.

    Watch the rating free fall this year.

    5 1 Rate This
    Leave a Reply

    ——

    the question is, how far
    do they drop on top of the 12% from last year.

    any loss of momentum in this area leading into the next cba
    is crippingling to the nfl’s vision of putting a team in london or
    anywhere else

    goodell has compromised his role as commmissioner
    and intelligent fans know this

  6. “Dr. Michael Graham, who explained that it’s impossible to determine the age of bruising from a review of photographs.” I’ve been saying this the Whole time. You cannot determine aging and causation of bruises based on photos, yet the league keep telling people their medical experts could. It’s literally impossible, I work in the medical field. The league hired a bunch of quacks to back them up. Use common sense people, if doctors could tell what skin condition you had from a photo, you would never have to make a doctor’s visit. So next time, something happens on your skin , take a picture of it and send it to your doctor and see if he/she can give you an accurate diagnosis without ever physically examining you. It’s just not possible, yet the NFL and Roger Goodell, would have you believe that doctors can do this.

  7. “It isn’t just this allegation. He got caught driving 100, physical sexual harassed a dancer by pulling her top down and also punched out a DJ. Just cuz he wasn’t convicted criminally (paid them off) doesn’t mean he shouldn’t be punished by his employer.”

    The problem is the NFL didn’t say they were punishing him for those things (some of which you can’t prove he did anyway). If they came out from the jump and said “Mr. Elliott, based on your pattern behavior over the last year, we are suspending you for conduct deterimental to the league for six games.” It would’ve been hard to challenge that in court and in the court of public opinion. Everyone agrees his behavior hasn’t been a good look.

    But they didn’t take the smart path. They wanted to brand him as a domestic abuser because they want to show everyone that they are not screwing around when it comes to domestic violence. In short, they got greedy. Now they’re going to pay price for it. Will the suspension be upheld? Probably, but it’s obvious to anyone objective that Goodell started from the standpoint of “We need to suspend him for 6 games” and then went and built a case to support it. The problem is, they did a crap job of it.

  8. Lets reverse this and play this out as if Goodell didn’t punish Zeke. Here is what happens:

    The photos of this girls injury begins to leak and people are outraged that the NFL had access to photos of her bruises and her text messages she sent to her aunt saying that Zeke did this to her right after it happened and “Did nothing!”.

    Then the league would come out and say that they sent Kia Roberts who concluded she wasn’t credible. Then everyone would be outraged because they’d say that the NFL purposely sent someone who would agree with Goodall’s buddy Jerry Jones, so her dismissing the credibility of the victim wouldn’t even have mattered.

    Must be nice to be in the media… you just watch what happens and act like it’s all incompetence and outrageous as it all plays out. The fact of the matter is, these cases are very tricky and whatever they decided on in regards to punishment, there is/ would have been a very strong argument on the other side. I actually don’t blame Goodell for how this has been handled because name me the person who could handle this case without strong valid criticism from the opposing side?

  9. sc5000 says:
    September 4, 2017 at 1:51 pm
    It isn’t just this allegation. He got caught driving 100, physical sexual harassed a dancer by pulling her top down and also punched out a DJ. Just cuz he wasn’t convicted criminally (paid them off) doesn’t mean he shouldn’t be punished by his employer.

    He reminds me of Von Miller. Uber talented very young and totally out of control. His suspension saved his career and maybe this will help Ezekiel become a better player/man. If he gets off the lesson isn’t learned and the erratic behavior will continue.

    1 3 Rate This

    ——-

    a speeding ticket is one of the stupidest arguments ever

    i got 3 in one year at age 23
    and have not had one since

    i would say this whe extortion and cheating manuver by goodell,
    has got him straight

    also, the “dancer” is the gal he went home with and she was already
    flashing people

    go thump that bible elsewhere, dungy

  10. There is one thing I know, I’ve never been accused of domestic abuse. That’s probably because I have never laid a hand on a woman.

    So the question needs to be asked: of all the things he could have been accused of, why is he being accused of domestic violence?

  11. The victim in this case has more credibility then does Zeke. The texts are more damaging to him then her. And while the victim asked her friend to lie, she later told the same friend to tell the truth. You know when Zeke asked her to text the victim, do you want me to lie?

  12. Ugh Ok… I can’t stand Dallas or their fans. But if the law didn’t see fit to punish him… Or maybe I don’t know all the facts?

  13. One question I think is totally relevant in a case where the accuser’s credibility is being questioned is this: could there be any possible financial incentives for the accuser to lie, and build a case by manipulating photos? I guess the league has the power to suspend any player at any time for any reason, even if there is no reason. If that’s the case, the players need better representatives the next time they sit down with the owners.

  14. A very nice analysis. Unless there is something contrary to this conclusion int he transcripts, I would have a hard time thinking that HH can uphold this punishment. While EE has clearly demonstrated he has something less than a fine character, it would seem that, combined with the lack of credibility of Thompson – as concluded by the NFL’s own investigator – and in the absence of being able to compel testimony of Thompson, that this alleged act of domestic violence doesn’t meet the lower standard of “more likely than not”. I am sure the Courts would agree, but….that Damn CBA.

  15. @limakey
    “The victim in this case has more credibility then does Zeke. The texts are more damaging to him then her. And while the victim asked her friend to lie, she later told the same friend to tell the truth. You know when Zeke asked her to text the victim, do you want me to lie?”
    ———————————————————————————————————————-
    That’s a new one. So, what is your explanation of the victim texting her friend that she was going to release a sex video tape unless Zeke paid her money ? That thing they call extortion, where she wanted $20,000. Can you come up with something better ?…or do you consider that a “business decision”?

  16. After successfully bungling a basic physic principle the NFL has moved onto forensic evidence. I’m sure nothing could possibly go wrong.

  17. “There is one thing I know, I’ve never been accused of domestic abuse. That’s probably because I have never laid a hand on a woman”

    Youve also never been a high profile athlete with a lot of money to prime for blackmail.

  18. That’s a new one. So, what is your explanation of the victim texting her friend that she was going to release a sex video tape unless Zeke paid her money ? That thing they call extortion, where she wanted $20,000. Can you come up with something better ?…or do you consider that a “business decision”?

    Did she do it? Why was she scared of him? And did she deny it? And in today’s world, a sex tape means nothing. It was funny to think they thought they get a lot of money out of it.

    And what does this have to do with domestic violence?

  19. deuce22222 says:
    September 4, 2017 at 2:30 pm
    There is one thing I know, I’ve never been accused of domestic abuse. That’s probably because I have never laid a hand on a woman.

    So the question needs to be asked: of all the things he could have been accused of, why is he being accused of domestic violence?
    ************************
    Some women crave attention and what better way to get it than claim to have been abused by a man. About a year ago, my then girlfriend was spazzing out from an anxiety attack. Started running her mouth with a whole bunch of unrepeatable things. I walked over to her (in an ordinary walk), she threw herself on the ground screaming for help that I was beating her. Well police showed up and an independent third party witness saw the whole thing. When the police confronted HER, her response was that she KNEW I was going to beat her up. The rest of the story? She apparently has a history of doing this with she is involved with or socially close to and the police knew this.

    Bottom line, there are a lot of crazy women out there.

  20. drcap says:
    September 4, 2017 at 3:08 pm
    I think we need a strong predisposition to believe a woman when she says she was the victim of domestic violence.
    ——————————————————————————

    Actually, no. We need to treat accusations of DV the same as accusations of any other crime. The same as robbery, for instance. We only need to not assume that just because the accuser and the accused are in some sort of relationship that whatever violence is alleged to have occurred is somehow excused or minimized.

    You have to first find out if in fact violence was perpetrated by one person against another. For that you need an objective approach.

  21. This is unbelievable. I originally supported the suspension, but unlike the NFL, I am willing to admit when I am wrong. This was a kangaroo court. They had obviously made up their minds well before the “evidence”, or lack thereof, was in.

    As for the suspension being justifiable because of other things he did, the league can’t make that argument now after specifically stating that the suspension was for the domestic abuse only. That bridge is burned.

  22. So medical experts can exhume bodies from a casket years later to determine a cause of death but no one can look at a bruise and give a ballpark figure on probably time it occurred?

  23. @limakey

    And what does this have to do with domestic violence?
    ————————————————————————–

    You said she was more credible. Fact 1) she asked her friend to lie, you agreed. 2) she wanted to extort money.
    How exactly does someone see that she has credibility ? If she’s willing to do those things how do you even know a domestic violence even occurred ? She was involved in an altercation at a bar. So, can someone really know if her bruises were caused by the bar fight or domestic violence, the answer is no. Then it goes back to her credibility, which has already been pointed out. Yes, Elliott is not a choir boy, but to falsely accuse someone of something they did not do is wrong. This is why we need to know why she asked her friend to lie, wanted to extort money, yelled she was going to ruin his career and nobody saw him lay a hand on her. Where is her credibility?

  24. Frum Slum says:
    September 4, 2017 at 4:13 pm
    So medical experts can exhume bodies from a casket years later to determine a cause of death but no one can look at a bruise and give a ballpark figure on probably time it occurred?
    =====================================
    When a body is exhumed, thay are actually examining the physical body. They aren’t looking at a photo of the body.
    The point, that you are completely missing, is that no one can look at a photograph and tell anything from it.

  25. It’s always amazing to me how many of the fanboys here went to law school and medical school and are qualified to issue a professional opinion on these topics. SMH.

  26. flowman2014 says:
    September 4, 2017 at 2:02 pm

    But they didn’t take the smart path. They wanted to brand him as a domestic abuser because they want to show everyone that they are not screwing around when it comes to domestic violence. In short, they got greedy. Now they’re going to pay price for it. Will the suspension be upheld? Probably, but it’s obvious to anyone objective that Goodell started from the standpoint of “We need to suspend him for 6 games” and then went and built a case to support it. The problem is, they did a crap job of it.
    ___________________

    They did a lousy job of it in deflategate as well but then they simply moved the goalposts and made it about the commissioner’s right to suspend as he sees fit under the terms of the CBA and if the league truly wants to see Elliott suspended that’s where this is headed too. If you don’t think Goodell will backtrack and say it’s about a pattern of behavior that makes Elliott’s judgement and credibility too suspect to be lent any credence then you have completely forgotten the red herring of Brady’s phone. The phone that didn’t matter to the point mention of it wasn’t included in the original suspension since they had the phones of the people he was alleged to have conspired with and could only admit they provided no evidence. The phone only mattered once the league discovered it was no longer available. The same will happen with Elliot’s character should the need arise.

  27. what you people seem to be forgetting is not only did the Columbus Ohio police department but the NFLs own investigator both found no evidence of abuse and NO charges were EVER filed.

  28. It’s not about one bonehead’s guilt or innocence; it’s about what a total screw-up Goodell is. He has repeatedly placed the league in untenable positions by compounding his ineptitude with out and out lies. Gotta go for any credibility in league policy.

  29. babygaga19 says:
    September 4, 2017 at 4:53 pm
    It’s always amazing to me how many of the fanboys here went to law school and medical school and are qualified to issue a professional opinion on these topics. SMH.

    ———————————————————————–

    Some of us might be, some of us might not. Doesn’t really matter. In the court of public opinion everybody is qualified to ask questions and to have conflicting information examined. These fanboys are bringing up good questions especially since truly qualified expert decided to spend the time, effort and money needed to ask the same questions in the “hearing” and to include them in the court action papers.

    You know, a real legal process presents evidence, including expert opinions, to a jury (of non-experts). I’m not talking about a grand jury, where the prosecutors hide or minimize the exculpatory evidence in order to get an indictment. But your regular petit jury (you know, folks like you and me) which hears ALL the evidence, for and against, including inconsistent expert opinions, and then the members thereof have to decide what happened in order to decide whether to deprive the accused of life or liberty or property.

    Roger conducted and got a grand jury indictment. But his minions have not convinced a lot of people, fanboys or not, that the accused is actually guilty of the charge.

  30. Any of y’all ever work in a law office? Or practice? Please don’t try and tell me you didn’t run and grab a box of popcorn after reading this article

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