The testimony of an expert witness, who asserted that someone who is black-out drunk can still make "voluntary decisions," became a point of debate in a Palo Alto courthouse Tuesday, the seventh day of the sexual-assault trial of People v. Brock Allen Turner.
Michael Armstrong, defense attorney for former Stanford University student Turner, who is accused of sexually assaulting an intoxicated and unconscious young woman, called the first defense witness to the stand: professor of clinical psychology at the University of Texas, Austin, Kim Fromme.
Fromme has extensively researched alcohol's effects on human cognition, memory and behavior, particularly in young adults, including a longitudinal study that followed 2,400 UT freshmen for a decade.
Specifically, she has conducted research on alcohol-induced blackouts, which she defined Tuesday as a "period of amnesia ... in which a person is fully conscious" and able to do things like walk, talk, drive a car and have sex but simply aren't forming memories of the events. When alcohol impairs a person's brain, the transfer of short-term memories to long-term storage is inhibited, she explained.
Fromme said she has previously testified as an expert in about 30 cases, many of which were related to intoxication and sexual assault.
In this case, the woman, Emily Doe, whose name the Palo Alto Weekly has changed to protect her privacy, previously testified that she had no memory of documented events from the night of Jan. 18, 2015, such as text messages and phone calls she made and received.
Doe also said she had no memory of interacting with Turner at the Stanford fraternity party at which they allegedly met. She also had no memory of being found on the ground behind a Dumpster behind the Kappa Alpha fraternity house around 1 a.m. with her dressed pulled up around her waist and her underwear and cell phone laying next to her on the ground, or of being transported to a hospital in San Jose where she woke up several hours later.
But does that mean that those things didn't happen, or that she didn't voluntarily engage in those activities? No, Fromme said.
The only thing impaired in an alcohol-induced blackout, Fromme testified, is a person's memory.
"If a person were in a blackout, that person would be able to engage in voluntary activities, including sexual activity?" Armstrong asked Fromme.
She said that's correct.
Turner told police on Jan. 18 that he and Doe had engaged in some sexual activity -- kissing, fondling and digital penetration -- that she "seemed to enjoy," a police report states.
Fromme testified that Doe was likely in an alcohol-induced blackout at the time but said there is no scientific or objective way to determine if or when someone is blacked out. The only way of knowing if someone has blacked out, she said, is if the person later says they lost memory while drinking, as Doe did.
There is also no way to determine at what level of intoxication a particular person might shift from being blacked out to losing consciousness, Fromme said. Being passing out when parts of a person's brain shuts down is also distinct from falling asleep due to intoxication, she said.
Research has shown that people typically blackout at a blood alcohol content (BAC) of 0.20 or above and pass out at 0.30 or above, Fromme said, compared to the legal driving limit of 0.08. (Doe's BAC came in at 0.127 or 0.129 around 7 a.m. that morning but was "back extrapolated" by a prosecution's witness to be at 0.241 or 0.249 at the time of the alleged sexual assault, around 1 a.m. Turner's registered at 0.13, around 3:15 a.m. and was estimated to be 0.171 around 1 a.m.)
There is no hard-and-fast rule, however, given the amount of individual variability in how alcohol affects people, Fromme and other witnesses have noted. Factors that increase one's risk of blacking out include having a history of blacking out due to drinking, being female (women are more likely than men to black out and at lower levels of intoxication), the kind of alcohol one is drinking and the rate at which one is drinking it, Fromme said.
During an at-times aggressive cross examination, prosecuting Deputy District Attorney Alaleh Kianerci challenged Fromme's integrity as an independent, neutral expert in the case. She called into question Fromme's financial compensation for testifying an $8,000 retainer, plus several thousand dollars more for airfare and a hotel stay and a fee of $350 per hour, compared to Kianerci's expert witness on alcohol from the county toxicology unit, who said in court she is not paid for her testimony.
Kianerci also pointed to Fromme's testifying track record (in the vast majority of the 30 cases for which she's served as an expert witness, she's testified on behalf of the defense rather than prosecution) and emails between Fromme and Armstrong that Kianerci said suggested she had a "vested interest" in the case.
In court Tuesday afternoon, Kianerci read from a series of email exchanges that Fromme had provided to Kianerci.
In a Jan. 19, 2016, email to Armstrong, Fromme described a sexual-assault and kidnapping case in Washington, D.C., for which she had just testified. The jury returned a not guilty verdict, she wrote.
"Let's hope for a comparable outcome for your client," Fromme wrote.
On Jan. 26, 2016, Fromme wrote to Armstrong about "another huge acquittal" in an alcohol-related rape case in which the jury found not guilty a man who had confessed to police that he raped a woman.
The next month, Fromme wrote to Armstrong about a direct examination -- the questioning of a witness by the party who called him or her in a trial -- that she had written for another case and had sent to him. She worried that under California law, the document would have to be shared with the district attorney a month before the trial started.
"I think it would be a bad idea ... akin to showing our entire poker hand in advance to placing bets," Fromme emailed Armstrong on Feb. 29, suggesting she could write a more "generic" version.
Kianerci noted that while Fromme reviewed related documents that Armstrong provided her the police report for the case, transcriptions of an October preliminary hearing, witness statements, lab reports Doe's and Turner's BAC levels and a recording of a voicemail Doe left her boyfriend in the early hours of Jan. 18 she did not see other evidence, such as photographs of Doe at the scene or a report written by the firefighter-medic who treated her that night.
"Do you believe your opinion is unbiased or influenced (by Armstrong)?" Kianerci asked Fromme.
"I'm here as an educator," she responded.
Armstrong reiterated that Fromme's compensation isn't based on what she testifies, nor the outcome of the trial.
Would Fromme ever compromise her integrity and professional reputation to give testimony "she knew wasn't true?" Armstrong asked in a follow-up line of questioning after Kianerci's cross examination.
"Absolutely not," Fromme said.
Integrity is the "currency of my field," she added.
Fromme was called as the defense's first witness due to scheduling issues, even though the prosecution has not rested its case. Later on Tuesday afternoon, Kianerci was expected to call two additional witnesses to the stand: Stanford Department of Public Safety Deputy Brian Shaw and detective Mike Kim, the investigating officer for the case.
Turner himself is expected to testify on Wednesday, Kim told the Weekly.
Turner, who withdrew from Stanford shortly after the alleged assault, is facing three felony sexual-assault charges: assault with intent to commit rape of an intoxicated or unconscious person; sexual penetration of an intoxicated person; and sexual penetration of an unconscious person. In February, he pleaded not guilty to five felony charges, which were later reduced to three.
The trial began last Monday, March 14. More than a dozen witnesses have testified so far for the prosecution.
Follow Weekly reporter Elena Kadvany on Twitter (@ekadvany) throughout the trial.
Read the Palo Alto Weekly's coverage of the Brock Turner trial and other sexual-assault cases at Stanford here.