Bolin v. Chappell
| Decision Date | 30 November 2012 |
| Docket Number | Case No. 1:99-cv-05279 LJO |
| Parties | PAUL C. BOLIN, Petitioner, v. KEVIN CHAPPELL, as Acting Warden of San Quentin State Prison, Respondent. |
| Court | U.S. District Court — Eastern District of California |
DEATH PENALTY CASE
ORDER GRANTING RESPONDENT'S
REQUEST TO MODIFY ORDER ON
MOTION IN LIMINE REGARDING
This matter is before the Court on the request of Respondent Kevin Chappell, as Acting Warden of San Quentin State Prison, (the "Warden") for modification the October 19, 2012 order to delete characterizations of the Warden's arguments the Court found intentionally or inadvertently misleading. The October 19, 2012 order denied the Warden's motion to exclude testimony from Strickland1 expert, James Thomson, designated by Petitioner Paul C. Bolin ("Bolin"). The request is unopposed.
The Warden presented three arguments the Court found troubling:
1. He maintained that a Strickland expert would not be useful or necessary to the Court in understanding the legal duties of defense attorneys at the time of Bolin's state trial. In support of this proposition, he quoted Earp v. Cullen, 623 F.3d 1065, 1075 (9th Cir. 2010): "Expert testimony is not necessary to determine claims of ineffective assistance of counsel." The Warden failed to mention, however, that a Strickland expert had testified in the Earp case aboutthe legal standard of care and that the preclusion concerned proffered evidence that the petitioner had been prejudiced by the alleged incompetent representation.
2. He argued that Mr. Thomson's testimony would be unreliable because he will base his opinion on ABA Guidelines for the legal standard of care. In support of this argument the Warden recited the notable holding in Bobby v. Van Hook, 558 U.S. 4, 130 S. Ct. 12 (2009), the high Court criticized the Sixth Circuit for holding up the ABA Guidelines "not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with which all capital defense counsel must fully comply." Id. at __, 130 S. Ct. at 17. He cited In re Reno, 55 Cal. 4th 428, 467 (2012), as holding "that reference to ABA Model Rules are not only unnecessary but the standards 'are not congruent with constitutional standards for effective legal representation.'" Because of Mr. Thomson's reliance on the ABA Guidelines, the Warden concluded his (Mr. Thomson's) testimony "would be both misleading and uninformative regarding the relevant issues." The argument as to Van Hook is off the mark because even if the ABA Guidelines are not "inexorable commands," they are still guides. Moreover, the high Court's criticism of the Sixth Circuit was, in part, based on that court's reliance on ABA Guidelines promulgated 18 years after the petitioner's trial. The Warden's reliance on Reno is similarly inapposite. In that case, the state court criticized state habeas counsel, of which Mr. Thomson was one, for relying on ABA Guidelines as justification for asserting defaulted claims in a successive petition.
3. Finally, the Warden raised Mr. Thomson's credibility, expertise, and competence as an expert, citing extensive criticism in the Reno case about the shortcomings of habeas counsel for misrepresenting the existence and non-existence of prior allegations in a state habeas petition. The Warden suggested the catalogue of misdeeds in pleading the cause in Reno could carry over to his testimony as a Strickland expert in this case. The abusive writ practices of Mr. Thomson and his co-counsel in Reno, as practitioners, would have no bearing on Mr. Thomson's knowledge and ability to testify about legal standards as an expert.
In the memorandum of points and authorities supporting the Warden's present request, he minimizes any incomplete representation of case law presented in his in limine motion and emphasizesthat his various assertions properly would have been the subject of argument between the parties.. As to the judicial pronouncement in Earp that Strickland expert testimony is not necessary to determine claims of ineffective assistance of counsel, 623 F.3d at 1075, he argues he never said such expert testimony should be precluded on the issue of legal standard of care. Rather, he points out that this particular topic of Strickland expert testimony simply was not challenged in the Earp case. The Warden's in limine motion, however, did not provide any case-explanatory information or mention that the district court had admitted Strickland testimony about the legal standard of care. The Court accepts the Warden's current entreaty that this omission was not intended to mislead. In the future, the Warden should provide a more complete rendition of the authorities upon which he relies and not anticipate that argument from the opposing party will cure any partial presentation.
With respect to reliance on the ABA Guidelines, the Warden now introduces additional cases bearing on whether an expert can be qualified in light of his or her methodology, including reliance on certain assumptions and facts. First, he cites to United States v. Prime, 431 F.3d 1147 (9th Cir. 2005), as an example of a case where certain assumptions forming the basis of expert opinion were discussed. Prime involved a criminal prosecution for the manufacture of counterfeit securities. The prosecution proffered a handwriting expert and the defendant moved in limine to suppress that testimony. Id. at 1152. The trial court denied the exclusion motion, finding the methodology of the expert reliable, and the Ninth Circuit affirmed. Id. at 1152, 1153, 1154.
Next he cites a Texas District Court opinion involving a civil suit on a promissory note and a collateral guarantee agreement, Whitney Nat. Bank v. Air Ambulance by B & C Flight, 516 F.Supp.2d 802 (S.D.Tex. 2007). The specific statement cited from that case is: "Incorrect assumption critical to an expert's opinion makes that opinion unreliable." Id. at 817. The designated "experts" in Whitney Nat. Bank testified that the deficiency claimed by the plaintiff bank after the sale of the collateral aircraft was unreasonable because the bank failed to fulfill its "duty" to have the aircraft re-certified as airworthy, so as to generate a higher price. In rejecting this testimony, the district judge found no such duty existed and thus that the testimony of the proffered experts could be discounted. Id.
The Warden asserts that "ABA Guidelines are not generally accepted in the relevant community to establish performance under the Sixth Amendment," and therefore, consistent with Whitney, but incontrast to Prime, Mr. Thomson's opinions should not be accepted. The Warden is mistaken. The Court is interested in understanding capital defense norms at the time of Bolin's trial, whether they are based on ABA Guidelines or other defense-oriented publications. Having that evidence will then inform (not "command") the Court's assessment of the legal competence of Bolin's trial attorneys. As the high Court observed in Van Hook, the ABA Guidelines are guides for how reasonably diligent attorneys would conduct a capital defense. Notwithstanding the Warden's continued argument that ABA Guidelines should not even enter into the calculus of Mr. Thomson's testimony, the Court accepts the Warden's sincerity in pressing the point.
The last area of concern for the Warden is the Court's treatment his argument that Mr. Thomson's testimony would lack credibility because the California Supreme Court in Reno, 55 Cal. 4th 428, criticized the tactics of Mr. Thomson and is co-counsel in litigating a successive state habeas petition. Because the state court found numerous allegations in the petition to contain false and unsupported allegations about whether the claims contained new facts, additional legal authority, had been raised previously, and had been ruled on previously, the Warden argued Mr. Thomson's credibility was called into question. He argues that since his in limine motion in no way obscured the context of the state court's criticism (that is in the context of abuse of the writ), there was no misleading, period. While he now concedes that the relevance and persuasiveness of Reno regarding Mr. Thomson's methodology was a matter of argument...
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