Saturday, April 10, 2004

Both Sides Reject Court-Appointed Expert in Nebraska Abortion Trial

U.S. District Judge Richard Kopf, who is presiding in the Nebraska trial over the constitutionality of the "partial-birth abortion" ban, offered to secure assistance from a court-appointed expert yesterday, in the wake of public statements by congressman Steve King (R.-Iowa) that the judge should not substitute his views for those of Congress, which had already determined, according to King, that the procedure was never necessary to preserve the life of the mother. The Miami Herald (registration) carries these excerpts of the judge's remarks from an Associated Press dispatch:

We are now nearing the end of this case, and with great respect, I note that we had a member of the House Judiciary Committee apparently sit in during part of this trial, and that member felt it necessary to complain about activist judges to the press after attending one of those sessions.

I want to do this matter as straight up as I can. I have no inclination one way or the other how this thing turns out. I don't care how it turns out, other than I do it as best I can as a judge.

I'm willing to submit this record to a court-appointed expert chosen through the good auspices of the American Association for the Advancement of Science if the parties are interested in doing that. I want to dispel any notion that this court is either disrespectful of Congress or has some agenda that is anything other than finding the facts truthfully and applying the law within the court's admittedly limited ability to do that, so at the conclusion of these proceedings today, I'm going to be asking you whether you would want me or be willing to have me utilize a court-appointed expert.

How I envision that happening, and this is general in nature, but would be to have the association nominate one or more persons to serve in that capacity essentially to answer two questions: Is the so-called partial-birth abortion procedure ever necessary prior to viability and if not, why not, and if so, why and when, and the same question post-viability.
Both sides declined the offer, according to an A.P. story running in the Arizona Daily Sun. The A.P. had issued an earlier, erroneous report that the judge had offered to recuse himself, which A.P. subsequently retracted.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.