establish what petitioner seeks to show. The brief is on the whole a
social and political polemic, devoid of any facts that are material
here. The inference which petitioner attempts to draw from it is not
supported by the brief. And the brief does not establish any admission by
Dr. Berg that would be a proper subject of judicial notice.
(3) The third document is from another case, apparently on the subject
of the state Attorney General telling local agencies to comply with an
injunction directed to the Attorney General in that case. However, that
document is simply a submission by one side in that case, and it does not
establish any facts here.
(4) The fourth is a newspaper article published at the time of
petitioner's conviction, purporting to quote "an anonymous juror." Such an
article is not a proper subject of judicial notice.
The parties have also filed post hearing briefs, which the court has
reviewed in detail.
These claims are reviewed by this court under the following standards.
The 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA) is
inapplicable to this case, Lindh v. Murphy, 521 U.S. 320, 117 S.Ct.
2059, 2068, 138 L.Ed.2d 481 (1997). Therefore, the court reviews
petitioner's constitutional claims under a de novo standard. See
generally 2 James S. Liebman & Randy Hertz, Federal Habeas Corpus
Practice and Procedure, § 30.2 at 957 (2d ed. 1994); Wright v. West,
505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). Even though the
California Supreme Court denied petitioner's claims on the merits, this
court can decide the legal questions and mixed questions of fact and
law. Id. Because the state court held no hearing and made no written
findings on these claims, there are no factual findings to which this
court must defer. (See former 28 U.S.C. § 2254(d), according a
presumption of correctness to state fact findings after a hearing on the
merits and evidenced by written findings). This court is therefore
empowered to find the facts and to independently apply federal law to the
A state conviction that has become final carries a general
presumption of regularity. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct.
1019, 82 L.Ed. 1461 (1938); McKenzie v. McCormick, 27 F.3d 1415, 1417
(9th Cir. 1994); Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir. 1976).
Accordingly, petitioner here bears the burden to establish that his
conviction was affected by constitutional error. Id.
Because habeas proceedings are civil in nature, the usual civil
preponderance of the evidence burden of proof applies. That is, petitioner
bears the burden to establish the facts underlying his claims of
constitutional error by a preponderance of the evidence. Johnson, 304
U.S. at 468-69, 58 S.Ct. 1019; McKenzie, 27 F.3d at 1419; Bellew, 532
F.2d at 1290. Respondent bears the burden of proof as to any affirmative
defenses. See 2 Liebman & Hertz, supra, § 31.2 at 968.
As stated, claim H alleges the failure of the state to disclose that
Dr. Berg, the state's mental health witness in petitioner's trial, was
the target of a fraud investigation at the time he testified. It is
undisputed from the record that Dr. Berg was under investigation by the
Attorney General of the State of California for alleged Medi-Cal fraud at
the time he testified.
This raises two possible concerns. The first is whether Dr. Berg was
actually biased in the testimony he gave in support of the prosecution
and against Odle. That is, did Dr. Berg slant his testimony in order to
curry favor with the prosecutor, in hopes of it having some favorable
effect on his investigation? The second is whether there has been a
violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963), because this potentially impeaching evidence was not
to defense counsel. The court discusses each concern in order.
The issue of actual bias is easily answered. The record
demonstrates, with no dispute, that neither Dr. Berg nor the prosecutors
knew about the investigation by the state Attorney General.
Dr. Berg testified at Odle's trial on July 11, 1983. The Medi-Cal Fraud
unit of the Attorney General's office had begun its investigation of him
in February 1982. In January and February of 1983, the Medi-Cal Fraud
unit conducted undercover operations directed at Berg's office.
However, Dr. Berg first learned of the investigation when a search
warrant was executed at his office on October 20, 1983, several months
after Berg's testimony in petitioner's case. No charges were actually
filed against Dr. Berg until December 1984. And the charges against him
were dismissed in 1988.
Further, District Attorney Yancey's deposition testimony shows that he
did not learn about the investigation until after Odle's trial.
Similarly, John McTigue, who was Chief Deputy of the Contra Costa County
District Attorney's Office during Odle's trial, did not learn about the
investigation until Dr. Berg called to tell him that charges had been
filed or were going to be filed, which was after Odle's trial.
A report identifying Dr. Berg as the target of a Medi-Cal fraud
investigation was prepared by the Attorney General's office. However,
there is no evidence that this report was distributed to any agency other
than the Department of Health Services. In addition, Ron Bass, a former
Contra Costa County deputy district attorney, moved to the Attorney
General's office and worked on the same floor as Carla Singer, the
Medi-Cal fraud attorney who prosecuted Dr. Berg. However, there is no
evidence that Ms. Singer discussed the case against Dr. Berg with Mr.
Since the record is clear that neither Dr. Berg nor the prosecutors
knew about the investigation at the time Dr. Berg testified in Odle's
trial, there is no inference of actual bias.
A prosecutor has a constitutional duty to disclose material,
exculpatory evidence to the defense, regardless of whether defense
counsel makes a specific request. United States v. Bagley, 473 U.S. 667,
682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83,
87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The duty extends not only to
information relevant to guilt, but also to evidence that would tend to
impeach the prosecution's witnesses. Bagley, 473 U.S. at 676, 105 S.Ct.
3375; Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972).
A breach of that duty violates due process when: (1) the
prosecution suppressed impeachment evidence that was actually or
constructively in its possession, regardless of the good or bad faith of
the prosecutor; and (2) the suppressed evidence was material. Brady, 373
U.S. at 87, 83 S.Ct. 1194; see also Kyles v. Whitley, 514 U.S. 419, 115
S.Ct. 1555, 131 L.Ed.2d 490 (1995); Paradis v. Arave, 130 F.3d 385, 392
(9th Cir. 1997). Evidence is material if there is a "reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different." Bagley, 473 U.S. at
682, 105 S.Ct. 3375. A "reasonable probability" is a probability
"sufficient to undermine confidence in the outcome." Id. The effect of
the omitted evidence must be evaluated on the basis of the record as a
whole. Bagley, 473 U.S. at 683, 105 S.Ct. 3375; see also United States
v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). And the
effect of the undisclosed evidence must be considered cumulatively, not
item by item. Kyles, 514 U.S. at 436-37, 115 S.Ct. 1555.
As discussed above, neither the prosecutors nor Dr. Berg actually
knew of the state's investigation. However, a Brady
violation can still occur if the information was in the prosecutors'
constructive possession. Thus, in Kyles v. Whitley, above, the Supreme
Court held that state prosecutors have a duty to disclose impeachment
evidence known to the police, even if the prosecutors themselves were not
actually aware of the information. The Court stated:
. . . the prosecution, which alone can know what is
undisclosed, must be assigned the consequent
responsibility to gauge the likely net effect of all
such [undisclosed favorable] evidence and make
disclosure when the point of "reasonable probability"
is reached. This is turn means that the individual
prosecutor has a duty to learn of any favorable
evidence known to others acting on the government's
behalf in the case, including the police.
Id. at 437, 115 S.Ct. 1555 (emphasis added). Similarly, in Carriger v.
Stewart, 132 F.3d 463, 479-82 (9th Cir. 1997), the Ninth Circuit held
that the prosecution had a duty to obtain and review the Department of
Corrections file of its principal witness, and to disclose any material,
impeaching evidence. Although it was unclear whether the prosecutors
actually possessed the file, the court stated:
The prosecutor's actual awareness (or lack thereof) of
the exculpatory evidence in the government's hands,
however, is not determinative of the prosecution's
disclosure obligations. . . Rather, the prosecution
has a duty to learn of any exculpatory evidence known
to others acting on the government's behalf.
Id. at 479-80 (citations omitted).
The cases variously describe the prosecutor's duty in terms of a duty
to search for favorable evidence, e.g., Kyles, 514 U.S. at 437, 115
S.Ct. 1555, Carriger, 132 F.3d at 479-80; or in terms of constructive or
imputed knowledge, e.g., United States v. Endicott, 869 F.2d 452, 456
(9th Cir. 1989) (knowledge imputed); United States v. Thornton, 1 F.3d 149,
158 (3d Cir. 1993) (in Brady context, "constructive knowledge" means that
prosecutor "should have known" of the existence of the information). But
however the duty is described, the cases identify two general situations
in which the prosecution will be held to have "suppressed" information of
which it was actually unaware:
First, knowledge will be imputed to the prosecutor where the
impeaching evidence is known to other members of the "prosecution team."
This includes information known to other prosecutors in the same office,
a situation not present in this case. It also includes information in the
hands of the police or other investigative agencies involved in the
prosecution; Kyles, 514 U.S. at 437-38, 115 S.Ct. 1555 (police);
Endicott, 869 F.2d at 455-56 (knowledge of promises made by Bureau of
Alcohol, Tobacco and Firearms agents to witness is imputed to
prosecutor, even though prosecutor may have been unaware of the promises,
because the investigative officers were "part of the prosecution");
United States v. Steel, 759 F.2d 706, 714 (9th Cir. 1985) (knowledge of
information held by F.B.I. imputed to prosecutor because investigative
officers were also part of the prosecution); United States v. Butler,
567 F.2d 885, 889-91 (9th Cir. 1978) (government is responsible for
non-disclosure by D.E.A. agents because they are "an arm of the
prosecutor"). Again, that "prosecution team" concept does not apply in
this case. The only agency which had the information was the state
Attorney General's office, which did not participate in Odle's
prosecution. The concept has been extended to knowledge held by an agency
"interested in the prosecution." See e.g., United States v. Wood,
57 F.3d 733 (9th Cir. 1995) (in prosecution for conspiracy to defraud
Food and Drug Administration, prosecutor was required to disclose
information known to FDA even though unknown to prosecutor because, as
agency interested in the prosecution, FDA was "part of the prosecution"
for Brady purposes). There is no such agency interest in this case.
The duty to search and disclose does not extend to all agencies of
government. Rather, the cases limit the duty to agencies involved in the
investigation or prosecution of the defendant. United States v.
Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir. 1995) (the prosecutor is "deemed
to have knowledge of and access to anything in the custody or control of
any federal agency participating in the same investigation of the
defendant"); accord United States v. Morris, 80 F.3d 1151, 1169-70 (7th
Cir. 1996) (in prosecution for mail and wire fraud, prosecutor had no
duty to search for, and was not charged with knowledge of, allegedly
exculpatory information held by the Office of Thrift Supervision, the
Securities and Exchange Commission, or the Internal Revenue Service,
where the prosecutor was unaware of the existence of the information and
those agencies were not part of the investigation or prosecution team);
see also United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998)
(declining to impose unlimited duty on prosecutor to inquire of other
offices not working with prosecutor's office on the case, because to do
so would be to adopt a "monolithic view of the government" that
ultimately would lead to prosecutorial paralysis).
Whether a particular government agency will be considered a part
of the prosecution depends on its level of involvement and cooperation
with the prosecuting agency. In this case, there is no basis for finding
that the state's Medi-Cal Fraud unit was in any way involved with the
murder prosecutions of district attorneys. And there was no reason at the
time to believe that the unit's records would have any evidence relevant
to such a prosecution.
Second, knowledge may be imputed to the prosecutor, or a duty to
search may be imposed, in cases where a search for readily available
background information is routinely performed, such as routine criminal
background checks of witnesses. See e.g., United States v. Perdomo,
929 F.2d 967 (3d Cir. 1991); Carriger v. Stewart, 132 F.3d 463 (9th Cir.
1997); United States v. Auten, 632 F.2d 478 (5th Cir. 1980); United
States v. Strifler, 851 F.2d 1197, 1201-02 (9th Cir. 1988); United States
v. Cadet, 727 F.2d 1453, 1467 (9th Cir. 1984); accord United States v.
Jennings, 960 F.2d 1488, 1490-91 (9th Cir. 1992).
A necessary corollary of this constructive knowledge rule is that
the government has no duty to disclose what it does not know and could
not have learned. E.g., United States v. Plunk, 153 F.3d 1011, 1027 (9th
Cir. 1998) (no Brady duty to disclose information in Federal Public
Defender's files regarding prior inconsistent statements made by a'
government witness; Brady duty extends only to information in the
possession or control of law enforcement personnel), amended by,
161 F.3d 1195, cert. den. ___ U.S. ___, 119 S.Ct. 1376, 143
L.Ed.2d 535 (1999); see also Hollman v. Wilson, 158 F.3d 177, 180-81 (3d
Cir. 1998) (no duty to disclose witness's full criminal history where,
despite a diligent search, part of the history was inaccessible); Vega
v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998) (no duty to disclose
pending indictment of a prosecution witness in another county; petitioner
did not demonstrate that the prosecution could have discovered the
indictment with a routine state and federal criminal history check).
In this case, the prosecutors' routine criminal background records
check would not have included the state's Medical Fraud Unit. And even if
that unit were included, the agency did not take any action of record
against Dr. Berg until 1984, after Odle's trial.
This court therefore finds and concludes that there has been no Brady
violation. The prosecutors did not know of the information. A background
criminal history records check would not have disclosed it. And the
agency that had the information was not involved or interested in the
prosecution of Odle.
Respondent argues that in Claim H petitioner seeks the application of a
in violation of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989). Simply stated, Teague held that "new" constitutional rules of
criminal procedure may not generally be applied retroactively to cases on
collateral review. Id. at 310, 109 S.Ct. 1060. In the order granting an
evidentiary hearing on Claim H, this court concluded that the
retroactivity analysis "will likely turn on facts that are in dispute,
and which will be developed at the evidentiary hearing." The court
therefore reserved a ruling on the state's Teague objection until after
the evidentiary hearing.
Having subsequently held the evidentiary hearing on Claim H, the court
will briefly consider the Teague argument. As discussed above, the court
has concluded that petitioner is not entitled to relief on Claim H,
whether his claim is based on law that pre-dates or post-dates the
finality of his conviction. The relief petitioner seeks was not "dictated
by precedent" existing at the time his conviction became final. Saffle
v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). Nor
has petitioner shown that the rule he seeks in Claim H would fall within
any exception to the non-retroactivity principle. Since the court has
found against petitioner on the merits of his Claim H, the Teague
argument need not be considered further.
For the reasons discussed above, petitioner's Claim H is denied.
In Claim I petitioner alleges that the prosecution violated his right
to due process by knowingly presenting false testimony by Dr. Berg about
petitioner's mental state at the time of the murders. He alleges that Dr.
Berg gave inaccurate testimony about the characteristics of organic brain
syndrome. And petitioner argues that Dr. Berg's opinions that petitioner
was a sociopath, and that petitioner had the capacity to form the
requisite mental state for murder, were false and misleading. He also
asserts that Dr. Berg, as a psychologist, was not qualified to render an
opinion about the effect of petitioner's brain damage on his mental
state. He further contends that Dr. Berg's testimony was misleading
because Dr. Berg rendered his opinions without having examined
To establish a violation of due process from the use of false
testimony, petitioner must prove that: (1) Dr. Berg's testimony was
perjured or false; (2) the prosecution knew or should have known of the
falsity; and (3) there is a reasonable likelihood that the false
testimony affected the jury's decision. United States v. Agurs,
427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Napue v.
Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
At the August 21, 1998 hearing on this petition, this court ruled that
petitioner could not demonstrate a due process violation by simply showing
that Dr. Berg's opinion about petitioner's mental condition was
inaccurate. Rather, because psychiatrists "disagree widely and
frequently," "conflicting psychiatric. opinions do not show that [an
expert's] testimony was false." Harris v. Vasquez, 949 F.2d 1497, 1524
(9th Cir. 1990) (internal quotations omitted). And this court ruled that
petitioner could not establish a violation by showing that Dr. Berg's
opinions that petitioner was a sociopath and that he was capable of
forming the requisite mental state were simply wrong. Harris, 949 F.2d at
1524; accord Fuller v. Johnson, 114 F.3d 491, 496-97 (5th Cir. 1997); In
re Robbins, 18 Cal.4th 770, 800 n. 24, 77 Cal.Rptr.2d 153, 959 P.2d 311
(1998) (opinion testimony not perjured unless witness does not honestly
hold' the opinion to which he or she testifies); People v. Esquibel,
44 Cal.App.3d 591, 595-96, 118 Cal.Rptr. 748 (1975) (same).*fn1 This
court also ruled that
petitioner could not establish a constitutional violation just because
Dr. Berg's testimony was based on an insufficient examination. See
Fuller, 114 F.3d at 497 (no due process violation where expert allegedly
testified falsely that the victim's death was caused by blows with a fist
rather than a pipe; place to challenge expert's autopsy methodology,
which allegedly was insufficient due to failure to strip brain's dura,
was at trial and not on habeas); Barefoot v. Estelle, 463 U.S. 880,
903-04, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (due process does not
require that psychiatric opinion testimony be based on a personal
examination of the petitioner). And it is not enough for petitioner to
argue that Dr. Berg was not qualified. Fuller, 114 F.3d at 497 (noting
that petitioner could have used academic criticism of "future
dangerousness" expert, and fact that American Psychological Association
had reprimanded him, to impeach the expert at trial; the criticism went
to the sufficiency of the evidence, not to the expert's truthfulness).
Rather, this court ruled that the issues open for the evidentiary
hearing as to the false statement prong of the due process claim (element
number one of United States v. Agurs) were: (a) whether Dr. Berg made any
false or misleading statement of fact; and (b) whether Dr. Berg honestly
held the opinions that he gave.
In his trial on guilt or innocence, petitioner presented three medical
experts. Dr. Blum, a neurosurgeon testified that he had removed a piece
of petitioner's left temporal lobe following an auto accident and
life-threatening head injury in August 1973. He then performed a
cranioplasty in September 1974 to cover the hole left in petitioner's
skull by the prior surgery. Between the initial surgery and the
cranioplasty, Dr. Blum treated petitioner several times, when petitioner
came to the hospital complaining of uncontrollable temper and violent
outbursts and when petitioner was involuntarily committed to the
Dr. Holtz, a neurologist, testified about the results of an
electroencephalogram performed on petitioner in December 1982. The test
showed that petitioner could have an epileptic seizure disorder caused by
his brain injury and surgery. Such a disorder could be characterized by
periods of rage and violence.
Dr. Thompson, a psychiatrist, reviewed petitioner's medical records and
the records of petitioner's three involuntary commitments. He did not
examine Odle. Dr. Thompson testified that people with temporal lobe
injuries such as petitioner's could suffer from a seizure disorder
characterized by rage outbursts, and that' alcohol or drugs could
exacerbate the problem. He testified that there was a, reasonable medical
chance that petitioner suffered from an "organic brain syndrome" and that
his behavioral disturbances were beyond his control. He also testified
that in his opinion petitioner was not a sociopath. Dr. Thompson did
not, however, purport to express an opinion about whether petitioner's
capacity was legally diminished at the time of the murders.
The jury therefore knew, from petitioner's experts, that Odle had
suffered a brain injury, that he had permanent brain damage, that he had
periods of violence, and that his acts could have been caused by the brain
The prosecution called Dr. Berg in rebuttal. Dr. Berg agreed with the
defense experts that petitioner had an organic brain syndrome due to his
injury. However, in Dr. Berg's opinion, there was no evidence that
petitioner's organic brain syndrome was "operative" at the time of the
murders; thus there was no evidence that he suffered from diminished
capacity. Rather, Dr. Berg opined that petitioner was a sociopath. Dr.
Berg was extensively cross examined by petitioner's counsel, and defense
counsel had the three defense experts available to assist in that cross
examination or to be recalled as rebuttal witnesses.
At the evidentiary hearing on this petition, Odle attempted to
establish that Dr. Berg's testimony was false or misleading in two
respects: (1) His testimony that petitioner did not suffer from organic
brain syndrome at the time of the crimes was allegedly misleading,
because Dr. Berg did not give the jury a complete definition of that
syndrome. (2) His testimony that petitioner was a sociopath was allegedly
false because, at the time he gave that testimony, Dr. Berg allegedly
knew that petitioner did not fit some of the criteria for that
Petitioner attempted to establish those two falsities by calling two
new witnesses at the evidentiary hearing. One was a forensic
psychologist. And the other was a neuropsychologist who has been a defense
consultant in some sixty-five capital cases. Their testimony was based
primarily upon a review of records from 1983 and earlier. They testified
to their opinions about the alleged falsity of Dr. Berg's testimony.
Because this court concludes that Claim I must be denied because of
petitioner's inability to establish element two of United States v. Agurs
(discussed below), this court need not discuss the psychiatric testimony
in any detail. But the court concludes that the testimony of petitioner's
experts did not satisfy petitioner's burden of proof to show that Dr.
Berg's testimony (1) was false or misleading, (2) about a fact, and (3)
was known by him to be false.
Odle's witnesses disagreed with Dr. Berg. They expressed
differences of opinion with his testimony at Odle's trial. Some of those
differences resulted from the definitions of terms, including some
psychiatric terms used by the witnesses in this hearing but not by the
witnesses in the trial. At the trial, Dr. Berg was responding to the
defense experts and the terminology which they had used. Petitioner's
experts in this hearing also identified differences with Dr. Berg about
what measuring criteria to use under the DSM. And they of course differed
with Dr. Berg's conclusions. But those are differences of opinion about
psychological criteria, definitions and conclusions, and are not
differences of fact.
Indeed, petitioner's witness Dr. Golding testified that everything he
said about Dr. Berg was subject to various other interpretations. For
example, he said that Dr. Berg could have just made a mistake, and that
some things are matters of interpretation. He also said that Dr. Berg was
a competent professional. And petitioner's witness Dr. Riley said that
she could not state that Dr. Berg had intentionally mislead the jury, or
that he knew what he told the jury was wrong.
There was no evidence that Dr. Berg did not honestly and
conscientiously believe the truth of the opinions that he expressed in
The court therefore concludes from the testimony at trial and the
testimony in the evidentiary hearing that petitioner has not sustained
his burden of proof that Dr. Berg made any false or misleading statement
of fact, or that he did not honestly hold the opinions that he gave at
The second requirement for establishing a due process violation
from the use of allegedly false testimony is that the prosecution knew or
should have known of the falsity. Agurs, 427 U.S. at 103, 96 S.Ct. 2392.
The court concludes from the record that petitioner has not established
this second requirement by a preponderance of the evidence.
Indeed, there is no direct evidence that the prosecution knew of any
alleged falsity. The prosecutor testified in his deposition that he had
no reason to question Dr. Berg's opinions and had no reason to believe
that Dr. Berg would testify falsely. Rather, Dr. Berg's opinions appeared
to be rational and had a basis in medical opinion. And Dr. Berg had
extensive experience in the field. The prosecutor, in preparation
for the trial, went over the key elements of Dr. Berg's proposed
testimony with him and found it to be rational and in no way troubling.
Petitioner presented no contrary evidence.
Even if a more liberal "should have known" standard is applied,
petitioner's evidence is still insufficient. The issue with which we are
concerned is not one of objective fact, such as whether a person was or
was not at the scene of a crime, or did or did not do a certain act. We
are dealing here with differences in psychiatric opinions. Petitioner
attempts to charge the prosecution with knowledge of the alleged falsity
because he was familiar with the DSM III and had participated in forensic
psychiatric seminars. But that is like charging a lawyer with knowingly
presenting false testimony because he has law books and attends CLE
classes. Neither are sufficient to show that the prosecutor knew that
testimony was false. The prosecutor did demonstrate knowledge of the
psychiatric issues in his cross-examination of Odle's experts at trial.
But that only shows that he was sufficiently prepared to cross-examine
the opinions of the adverse witnesses, not that he knowingly put on false
testimony of his own witness. As stated, the prosecutor did meet with
Dr. Berg to go over his anticipated testimony, as a competent trial
attorney is obliged to do. Any adverse inference that might be drawn from
such a trial preparation meeting — if any could be drawn — is
more than offset by the uncontroverted direct evidence that the
prosecutor had no reason to doubt Dr. Berg's opinions, that they appeared
to be rational, and that they had a basis in medical opinion.
The court finds from the evidence that the prosecutor did not know, and
had no reason to know, of the alleged false opinions of Dr. Berg.
Because of the court's conclusions that the first and second
requirements of United States v. Agurs are not met, the court need not
discuss the issue of whether the testimony was material.
The court therefore finds and concludes that petitioner has not
established by a preponderance of the evidence that the prosecution
violated his right "to due process of law by presenting false or
misleading opinion testimony by Dr. Berg. Claim I is therefore denied.
In Claim DDD petitioner asserts that the petition should be granted
because of the cumulative errors alleged in the other claims.
The Ninth Circuit has recognized the principle that even if no single
error is sufficiently prejudicial to issue a writ of habeas corpus, the
cumulative effect of several errors may warrant relief. E.g. Turner v.
Duncan, 158 F.3d 449 (9th Cir. 1998); Harris v. Wood, 64 F.3d 1432 (9th
Cir. 1995); Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992). But see Fuller
v. Roe, 182 F.3d 699 (9th Cir. 1999); and Rupe v. Wood, 93 F.3d 1434 (9th
Cir. 1996). Most of the cases applying the cumulative error principle
were ones in which there were errors, but the errors were individually
found to be harmless or not prejudicial.
When a petitioner alleges that several errors of constitutional
dimension prejudiced him, the general inquiry is whether the errors in
combination had a "substantial or injurious effect or influence in
determining the jury's verdict." Franklin v. Duncan, 884 F. Supp. 1435
(N.D.Cal. 1995), at 1448, 1450, 1452, 1445 (quoting Brecht v.
Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). In
McDowell v. Calderon, 107 F.3d 1351 (9th Cir. 1997), amended, 116 F.3d 364
(9th Cir. 1997), vacated in part on other grounds, 130 F.3d 833, 835 (9th
Cir. 1997) (en banc), the Ninth Circuit recognized that a cumulative
error analysis ultimately should focus on the fundamental fairness of the
This court has now examined, in four opinions and orders, the numerous
claims which petitioner has raised. As to each
the court has found no constitutional error. This court is convinced that
Odle had a full and fair' trial at both's the guilt and penalty phases. A
central fact' presented at the trial was of course that Odle' had brain
damage at the time he committed the murders. However, that information
was put before the jury, and they heard the conflicting opinions on the
possible effect of that brain damage on Odle's mental state. The jury
rendered its verdict, and. this court finds no constitutional reason, to
upset that result, either singularly or cumulatively. Claim DDD is
It is therefore ORDERED. that the petition for a writ of habeas corpus
Since this ORDER now resolves the fifty-six claims in Odle's petition,
it is a final disposition of that petition. The stay of execution
previously ordered by this court is therefore VACATED.
The Clerk of this Court is directed to immediately notify the Clerk of
the United States Court of Appeals for the Ninth Circuit of the issuance
of this order.