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

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.

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


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