The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
Order Regarding Motions In Limine (Docs. 272 and 274), Requesting Response to Joint of San Quentin State Prison, Pretrial Statement, Vacating Pre-Trial Hearing, and Rescheduling Evidentiary Hearing.
Petitioner Ronald L. Sanders ("Sanders") and Respondent Robert L. Ayers, Jr., ("the Warden") filed motions in limine on July 11, 2008, pursuant to the previously established schedule for the evidentiary hearing in this case.
Sanders' Motion to Exclude Evidence regarding Guilt or Innocence
Sanders asserts the exclusion of evidence regarding his guilt or innocence is consistent with this Court's previous determination that privileged, guilt-phase-related files of trial counsel should not be disclosed because they are not relevant to the claim now being litigated. Sanders asserts the same reason that limited production of trial counsel's files to material relevant to penalty and to Sanders' opposition to present a penalty defense, applies to evidence to be submitted at the upcoming evidentiary hearing. Sanders requests "this same type of information about guilt or innocence" be excluded from admission into evidence at the evidentiary hearing. The Warden opposes Sanders' motion to the extent it bears upon trial counsel's decision-making process about the penalty phase. The Warden notes that Sanders acknowledges his personal belief in his innocence influenced his penalty phase decisions and is relevant to the hearing since trial counsel based his decision not to investigate on Sanders' directions. The Warden believes that inquiry into this area will be limited, so there is no real concern that evidence of Sanders' guilt or innocence will protract or complicate the hearing.
Sanders' motion to exclude evidence regarding guilt or innocence is DENIED without prejudice to raising it again at the evidentiary hearing in regard to specific evidence or testimony.
The Warden's Motion to Exclude Evidence of Dr. Kriegler and Mr. Stetler
The Warden withdraws the request that the testimony of Dr. Kriegler and Mr. Stetler be excluded for failure to include them on Sanders' witness list, as they were listed in Sanders' supplemental witness list.
The Warden's Motion to Exclude Evidence of Experts' Opinions
The Warden seeks to exclude and reject the proffered opinions of Stanley Simrin, Susan Sawyer, and Russell Stetler, because they will not assist the Court, as a district judge is qualified to assess and undertake the legal analysis required for an ineffective assistance of counsel claim without the need for such experts.
Sanders opposes this motion, asserting that the Warden's urging to reject the Strickland experts as a matter of general policy is contradicted by the use of such experts in many cases before the United States Supreme Court, the Ninth Circuit Court of Appeals, and district courts in the Ninth Circuit and in the Eastern District of California. Sanders argues that similarly, experienced attorneys have testified as expert witnesses about prevailing professional standards and the adequacy of capital trial counsel's representation in California courts for over 30 years, even predating the issuance of Strickland v. Washington, 466 U.S. 668 (1984). Sanders asserts the use of Strickland experts is well-established, especially in capital cases, and whether the proposed experts' testimony will assist the Court is a decision which should be reserved until after the testimony is heard.
Sanders contends the cases cited by the Warden do not suggest that Strickland experts are without value, but instead found no abuse of discretion where the experts, in circumstances which are distinguishable from this case, were excluded. In Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004), exclusion of Strickland experts was not abusive where the petitioner did not make a colorable claim of ineffective assistance of counsel. In Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995), the exclusion of expert testimony about the psychological effect on jurors of an ineffective assistance of counsel claim was not abusive where the judge is qualified to assess likely jury responses to certain evidence. Sanders asserts that here the prejudicial effect of trial counsel's acts and/or omissions are not part of the first phase of the evidentiary hearing, but the standards for competent counsel at the time of Sanders' trial and the reasonableness and competency of Hoover's handling of the penalty phase is at issue in the first phase, and are the issues about which Strickland experts routinely testify and about which most jurists would benefit from expert testimony. Sanders argues the third case cited by the Warden, LeGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998), generally supports the propriety of Strickland expert testimony, as there the court permitted five experts to testify about the professional standard of care, but was found not to have abused their discretion by limiting the testimony to the question of deficient performance and excluding testimony on the question of prejudice. The Warden's motion to exclude the testimony of Strickland experts, Susan Sawyer, Stan Simrin, and Russell Stetler is DENIED.
The Warden's Motion for Production of Material Relied on by Experts The Warden seeks discovery, prior to the evidentiary hearing, under Federal Rule of Evidence 705, of certain materials relied upon by Sanders' expert witnesses. Specifically, the Warden seeks:
a. All interview recordings, transcriptions, internal reports, or field notes of interviews and evaluations conducted ...