This proposed expert witness, Richard T. McEvoy, Jr., was to testify that the adult male in the pornographic photograph was not Nickel. The adult male in the photograph is not facing the camera, and therefore cannot be identified through an examination of the face. Mr. McEvoy was to testify that he took photographs of Nickel and did certain scientific measurements, eventually determining that the adult male in the photograph was not Nickel. But Judge Czajka refused to allow Mr. McEvoy to testify as an expert. There is no doubt that Mr. McEvoy is qualified. He has been consulting with and training law enforcement personnel in the use of photography and digital imaging for 25 years. He started out doing precision photography for the military and then went into forensic photography. He was in charge of the Georgia Bureau of Investigations’ photographic laboratories -- part of its homicide and arson investigation section -- for over six years. He has also worked on photo identification cases for other agencies, including the FBI. Some of his work involved the identification of persons depicted in bank surveillance photographs. Mr. McEvoy has in fact worked almost exclusively on the prosecution side. In his written report, which Judge Czajka also refused to allow into evidence, Mr. McEvoy made the following findings:
- “Body Hair Pattern Characteristics of chest, arm, hand, and back are different between images … The adult male [in the sex photo] displays less hair on the forearms, wrist, and back of hands … [He] has a different direction of natural growth and curl on the back of the neck and head … [He] has a chest hair pattern that displays a higher chest-to-width pattern with less width to the pattern … There is more hair on the back and shoulders …
- Ear Shape and Pattern characteristics of the adult[s] … are different … The adult ear in [the sex photo] is shaped like a reverse question mark with a distinct descending ‘squared-off’ lobe. Jeffrey Nickel displays an ear that is ‘C’ shaped without a prominent descending lower lobe … The ear labyrinth patterns of Jeffrey Nickel and the adult in the image are also dissimilar.
- Nose shape, Nose Bridge Angle of Protrusion, Nostril and Nare Shapes … The nose shapes are different. The adult in [the sex photo] has a slight downward curvature (from bridge to tip). Jeffrey Nickel has a straighter line … Jeffrey Nickel has a less prominent nose bridge than the adult in [the sex photo] … The nares are different shapes. Jeffrey Nickel has elliptical, ‘coma-shaped’ nares. The adult in [the sex photo] has a nearly ‘square-shaped’ nare. The nostril of Jeffrey Nickel is more ‘blended’ to the … nose than the nostril shown on the adult in [the sex photo].”
In summary, Mr. McEvoy found that the sex photo and the pictures he took of Nickel depict two different people. Judge Czajka was either completely unaware of, or for some reason simply chose to ignore the fact that courts throughout the U.S. routinely admit this sort of expert testimony. (Bank robberies are the most common type of case for which forensic photography experts are called in.)