McArthur v. Alameda County Public Defender's Office

Opinion

FRANCIS MCARTHUR, Case No. 21-cv-09412-KAW

Plaintiff, PRETRIAL CONFERENCE v. TENTATIVE RULINGS

DEFENDER'S OFFICE, et al., Defendants. Relevant evidence is any evidence that has any tendency to make a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Fed. R. Evid. 401. The Court has discretion to “exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” MIL Motion Ruling Reason/Explanation Mr. Aye is not opining as to the ultimate legal conclusion, i.e., whether Plaintiff suffered a due process violation. Exclude expert Having reviewed the opinions Plaintiff P1 testimony of Michael J. DENY asserts are unreliable, the Court finds Aye. that Mr. Aye adequately explains why they are supported and/or Plaintiff’s challenges go to weight rather than admissibility. To the extent Plaintiff identifies three specific categories of evidence (i.e., other Coalinga patients bringing unfounded Vasquez claims, other SVP clients not wanting to come to court, and many SVPs making a conscious decision to delay their trial), Defendants do not oppose. The Court denies the motion in limine as to any unspecified categories of evidence, as the Court has Exclude GRANT IN no information to determine whether P2 “generalizations” PART such evidence should or should not be about SVP clients. excluded. See Shenwick v. Twitter, Inc., No. 16-cv-05314-JST, 2021 U.S. Dist. LEXIS 66297, at *34-35 (N.D. Cal. Mar. 31, 2021) (“Plaintiffs are correct that, with some exceptions, Defendants fail to identify precisely which exhibits should be excluded. Therefore, the Court denies the motion as to any exhibits other than those identified in it.”). Such evidence goes to the reasonableness of the strategy of Plaintiff’s public defenders to delay trial, particularly as such evidence would have been used against Plaintiff at a SVP trial prior to 2016. See People v. Dean, 174 Cal. App. 4th 186, 193 (2009) (allowing experts to rely upon Exclude evidence of inadmissible hearsay). Even after P3 Plaintiff’s other crimes DENY People v. Sanchez, courts have and bad acts. permitted experts to testify as to prior bad acts that could be proven through documentary evidence, such as probation and sentencing reports or party admissions. See People v. Burroughs, 6 Cal. App. 5th 378, 403 (2016); People v. Orey, 63 Cal. App. 5th 529, 554 (2021). Foundation can be established through Exclude testimony of testimony by Mr. Ayers or the public state-wide or common defenders’ personal knowledge. Such P4 practice of delaying DENY evidence is relevant to whether the delay SVP trials. strategy was reasonable. This issue is P5 Exclude evidence of Such evidence is relevant to the continuances after reasonableness of the strategy of Plaintiff’s counsel was Plaintiff’s public defenders to delay DENY appointed as conflict trial. Plaintiff provides no legal counsel. authority or analysis in support of this motion in limine. P6 Exclude evidence Plaintiff provides no legal authority or produced by Coalinga DENY analysis, and fails to identify the not in Defendant’s file. evidence at issue. P7 Exclude evidence that would “elicit Plaintiff provides no legal authority or sympathy” for DENY analysis, and fails to identify the Plaintiff’s public evidence at issue. defenders. Exclude public defender testimony of Plaintiff fails to identify the evidence at P8 facts they do not DENY issue, and it is not clear that this is an issue. Thus, motion appears premature. remember. Exclude evidence that Plaintiff was not found Plaintiff provides no legal authority or P9 incompetent to stand DENY analysis. trial in criminal cases. Defendants fail to identify the evidence Exclude evidence of at issue. Issue is moot because parties D1 customs, pattern, and DENY have already agreed not to present practices. evidence related to supervisory liability. Defendants fail to identify the evidence Exclude reference to at issue. Issue is moot because parties D2 other civil suits. DENY have already agreed not to present information from other Vasquez cases. Exclude habeas corpus Defendants fail to identify the evidence D3 decisions in other DENY or expert opinions at issue. cases. Exclude evidence of D4 subsequent remedial GRANT Plaintiff does not oppose. measures. Exclude expert GRANT IN Mr. Kraft may testify as to whether the D5 testimony of Rudy PART, DENY motions filed by Plaintiff’s public defenders were unlikely to succeed, as case authority and practices by other attorneys. Mr. Kraft may not testify as to whether Plaintiff’s public defenders violated his due process rights because this is the ultimate issue of law that a jury must decide. Mr. Kraft may not testify as to the professional standard of care and whether Plaintiff’s public defenders met that standard of care because Mr. Kraft has not demonstrated he is qualified to opine on this issue, given his lack of experience with SVP trials and failure to explain why the standards he applies would be the applicable standard of care. Mr. Kraft may not testify as to whether Plaintiff’s public defenders ensured Coalinga properly accommodated Plaintiff’s intellectual disabilities, whether there was a breakdown in the Alameda County Public Defender’s Office based on the workload, and whether Plaintiff’s public defenders did not understand their obligations to their client based on their failure to obtain a guardian ad litem. These opinions are not adequately supported and therefore unreliable. Finally, Mr. Kraft may not testify as to customs and practices because Monell liability has been bifurcated. Evidence that is related to ineffective assistance of counsel is not automatically irrelevant to the due Exclude evidence process inquiry, including questions of D6 related to ineffective DENY the reason for the delay, Plaintiff’s assistance of counsel. assertion of his right, and whether the strategy chosen by Plaintiff’s public defenders was reasonable. Exclude evidence of D7 other SVP cases. GRANT Plaintiff does not oppose. A. Plaintiff’s Objections Witness/Evidence Ruling Reason/Explanation A CV is hearsay. See Mahnke v. Wash. Metro. Area Transit Auth., 821 F. Supp. 2d 125, 154 (D.D.C. 2011). This does not prohibit an expert witness from “testif[ying] to each of the points on his c.v.,” such that “exclusion serves little purpose,” or from parties “routinely stipulat[ing] to the admissibility of curriculum Exhibit 1 (Michael Aye vitae for reasons of common sense.” Alexie v. CV and Expert Report) SUSTAIN United States, No. 3:05-cv-00297 JWS, 2009 U.S. Dist. LEXIS 4103, at *2 (D. Alaska Jan. 21, 2009); Colon v. Hosp. Hermanos Melendez, Inc., No. 3:19-cv-01797-JAW, 2023 U.S. Dist. LEXIS 7012, at *6 (D.P.R. Jan. 13, 2023). “Generally, expert reports are inadmissible hearsay.” Salgado v. Iqvia, Inc., 459 F. Supp. 3d 1318, 1327 (S.D. Cal. 2020). The exhibits are not being offered by a retained expert or being used for the truth of the matter therein, but as evidence of the information Exhibits 2-6 (2007 Mark before Plaintiff’s public defenders when Koetting SVP strategizing about Plaintiff’s case. Thus, such Evaluation, 2007 Mark evidence goes to whether the strategy employed Miculian SVP by Plaintiff’s public defenders was reasonable. Evaluation, 2011 Mark Such evidence also goes to the fourth Barker Miculian SVP OVERRULE factor of prejudice, as the evaluations may Evaluation, 2011 affect whether Plaintiff was prejudiced by the Michael Selby SVP failure to go to trial. See Camacho v. Superior Evaluation, 2012 Carol Court, 15 Cal. 5th 354, 392 (2023) (explaining Murphy SVP that prejudice is less likely to result purely as a Evaluation) function of time, as a SVP trial jury must consider the most recent evidence and expert evaluations to determine if an individual qualifies as an SVP at the time of trial). The exhibits are not being offered by a retained expert or being used for the truth of the matter Exhibits 7-8 (2020 therein. While the evaluations were made after Charles Flinton SVP the Alameda County Public Defender’s Office Evaluation, 2020 Mark OVERRULE Miculian SVP declared a conflict, they still go to the fourth Barker factor of prejudice, as the evaluations Evaluation Report) may affect whether Plaintiff was prejudiced by the previous failure to go to trial. Notes) on hearsay exceptions. The exhibit may be admitted if witness is able to demonstrate that it falls within an exception, i.e., it was a present sense impression made while or immediately after perception (Rule 803(1)), it is a recorded recollection on a matter the witness no longer recalls well enough (Rule 803(5)), or is a record of an event where the record was kept in the course of a regularly conducted activity and the making of the record was a regular practice of that activity (Rule 803(6)). Defendants will need to substantiate the hearsay exceptions at the pretrial conference. Foundation can be established by the witness, as it is correspondence he sent or received. The May 10, 2002 letter authored by Plaintiff is admissible as opposing party’s statement. The Court has insufficient information to OVERRULE determine how the remaining correspondence is Exhibit 10 (Bryon IN PART, being offered for a non-hearsay purpose. The Brown Correspondence) DEFER IN Court has insufficient information to determine PART that the exhibit is admissible based on hearsay exceptions. The exhibit may be admitted if Defendants establish a non-hearsay purpose or the witness demonstrates that it falls within an exception. Defendants will need to substantiate the hearsay exceptions at the pretrial conference. The court has insufficient information to determine that the exhibit is admissible based on hearsay exceptions. The exhibit may be Exhibit 12 (David Feld DEFER admitted if witness is able to demonstrate that it Notes) falls within an exception. Defendants will need to substantiate the hearsay exceptions at the pretrial conference. Foundation can be established by the witness, as it is correspondence he sent. The Court has insufficient information to Exhibit 13 (David Feld DEFER determine how the correspondence is being Correspondence) offered for a non-hearsay purpose or is admissible based on hearsay exceptions. The exhibit may be admitted if Defendants establish demonstrates that it falls within an exception. Defendants will need to substantiate the hearsay exceptions at the pretrial conference. The court has insufficient information to determine that the exhibit is admissible based on hearsay exceptions. The exhibit may be Exhibit 15 (Margo DEFER admitted if witness is able to demonstrate that it George Notes) falls within an exception. Defendants will need to substantiate the hearsay exceptions at the pretrial conference. Foundation can be established by the witness, as it is correspondence she sent. The Court has insufficient information to determine how the correspondence is being Exhibit 16 (Margo offered for a non-hearsay purpose or is George DEFER admissible based on hearsay exceptions. The Correspondence) exhibit may be admitted if Defendants establish a non-hearsay purpose or the witness demonstrates that it falls within an exception. Defendants will need to substantiate the hearsay exceptions at the pretrial conference. The court has insufficient information to determine that the exhibit is admissible based on hearsay exceptions. The exhibit may be Exhibit 18 (Sachiel DEFER admitted if witness is able to demonstrate that it Slavin Notes) falls within an exception. Defendants will need to substantiate the hearsay exceptions at the pretrial conference. Foundation can be established by the witness, as it is correspondence he sent. The Court has insufficient information to determine how the correspondence is being offered for a non-hearsay purpose or is Exhibit 19 (Sachiel DEFER admissible based on hearsay exceptions. The Slavin Correspondence) exhibit may be admitted if Defendants establish a non-hearsay purpose or the witness demonstrates that it falls within an exception. Defendants will need to substantiate the hearsay exceptions at the pretrial conference. Exhibit 21 (Coalinga OVERRULE Relevant to Plaintiff’s arguments that he did not Client Trust Account) establishing defenders ignored him. Falls under hearsay foundation) exception for records of a regularly conducted activity. Exhibits 22-24 To the extent Plaintiff relies on his MIL No. 3 (Coalinga Hospital and 6, both are denied. Relevant to whether the Records: Police Reports, strategy of Plaintiff’s public defenders was Coalinga Hospital reasonable and Barker factors, including the Records: Special OVERRULE reason for the delay and whether the delay was Incident Report Log; prejudicial. Evidence is not offered for the truth Coalinga Hospital of the statements therein, but for the effect on Records: Treatment Plaintiff’s public defenders in determining Plans) strategy. Documents produced in August 2022, prior to the close of fact discovery in July 2023. OVERRULE Exhibits are not being offered for the truth of Exhibit 25 (CPDA (subject to the matter therein, but as examples of training Seminar Covers) establishing materials going to the qualifications of foundation) Plaintiff’s public defenders. Relevant to the issue of whether Plaintiff’s public defenders were qualified. Relevant to whether delay was a reasonable OVERRULE strategy. Stipulation to preclude Plaintiff from Exhibit 26 (Trial (subject to presenting evidence within Attorney Robyn Continuance Records) establishing Fass Wang’s knowledge is not relevant to foundation) whether Defendants may present evidence relating to her actions. Exhibits 28 (Criminal See Pl.’s MIL No. 3. The exhibits are presented Records: 1997 Keturah not for the truth of the statements therein, but as Boyd Rape Charge), 29 evidence used by SVP evaluators in making (Criminal Records: OVERRULE their findings and Plaintiff’s public defenders in 1996 Stephanie coming up with strategy, which in turn goes to Palumbo Rape Charge), 30 (Parole Records) the reasonableness of such strategy. Exhibit 31 (Plaintiff’s SUSTAIN Not produced during discovery. Civil Lawsuits) Plaintiff cites no authority that Plaintiff cannot sponsor the operative complaint in this case. Plaintiff cites no authority that pleadings are Exhibit 32 (Complaint) DEFER inadmissible. The Ninth Circuit has found that “[f]actual assertions in pleadings . . . unless amended, are considered judicial admissions F.2d 224, 226 (9th Cir. 1988). It is unclear what is the purpose of introducing the complaint, and may be confusing to the jury. Defendants will need to explain at the pretrial conference the purpose of the complaint and what portions will be introduced. Plaintiff cites no authority that Plaintiff cannot Exhibit 33 (Wang sponsor a declaration made in support of OVERRULE Declaration) Plaintiff’s Vasquez motion, particularly when the verification was made on Plaintiff’s behalf. Relevant to the qualifications of Plaintiff’s Exhibit 34 (Photographs OVERRULE public defenders. While the relevance seems of Training Materials) very limited, Plaintiff cites no prejudice. The exhibit is a January 2017 letter sent from the Department of State Hospitals to a San Diego County Public Defender, listing the number of patients who were being detained under the Sexually Violent Predator Act and the Exhibit 35 (DSH number released. There is no apparent Response to PRA SUSTAIN relevance of this exhibit. There is no Request) suggestion Plaintiff’s public defenders ever reviewed this document or relied upon it when they came up with their strategy. It is unclear how information about whether there were other patients who had been released is relevant to Plaintiff’s specific case. Michael Aye OVERRULE See Pl.’s MIL No. 1. Plaintiff does not object except to request the Bryon Brown, David Feld, Margo George, exclusion of testimony about facts that OVERRULE witnesses do not remember. It is unclear any Sachiel Slavin, Diane such testimony exists, so the objection is Bellas, Brendon Woods overruled as premature. Witness was not disclosed until Defendants’ October 2023 pretrial statement. Even if other state evaluators were disclosed and Dr. Mark Koetting SUSTAIN Koetting’s 2007 SVP evaluation was produced, this does not mean Plaintiff was given fair notice that Dr. Koetting would be called as a witness. Mark Miculian, Michael OVERRULE Defendants state these witnesses were disclosed Charles Flinton witnesses are state evaluators who were not retained as expert witnesses, but are acting as fact witnesses. The witnesses’ evaluations are relevant to determining whether the strategy of Plaintiff’s public defenders was reasonable. Calvin Kilcrease, Mina Beshara, Sara Arad, Christopher Lee, Witnesses were not disclosed. The fact that Raquel Keo, Dominic Plaintiff was aware these individuals existed as Brown, David Avila, part of Plaintiff’s treatment team since does not Nageswararao mean Plaintiff was given fair notice that these Vallabhaneni, Richard SUSTAIN individuals could be called as witnesses at trial. Schenkman, Jeffrey Defendants cite no authority that every Hasson, Carolyn Knox, individual mentioned in a document produced Doug Viet, Leah in discovery can be called as a witness without Gordon, Joy Ogbonna, proper disclosure. Gabriella Bernal, Isaac Bonsu Defendants do not intend to call Attorney Wang as a witness unless Attorney Wang presents evidence that is only within her personal Robyn Fass Wang SUSTAIN knowledge. As Plaintiff has agreed not to present such evidence, the objection is sustained as moot. B. Defendants’ Objections Witness/Evidence Ruling Reason/Explanation Exhibits 37-45 are motions filed in other SVP cases. Such evidence is excluded per Defendants’ MIL No. 7, which Plaintiff did not oppose. Further, there is no dispute that Plaintiff never properly identified the exhibits. Rather, Plaintiff did not cite them until August Exhibits 37-45 SUSTAIN 2023, as attachments to Mr. Kraft’s expert report and in Plaintiff’s opposition to Defendants’ motion for summary judgment. (See Pl.’s Resp. to Evid. Obj. at 1, Dkt. No. 134.) It is also unclear how such exhibits are relevant in the instant case, as the motions were filed with respect to other SVP detainees and by other attorneys. IN PART, , 2 Rudy Kraft SUSTAIN IN See Def.’s MIL No. 5. PART 3 5 The parties have submitted a joint jury questionnaire, which has no fewer than 66 6 questions. The Court currently issues an electronic questionnaire, which includes standard juror 7 questions (https://www.cand.uscourts.gov/wp-content/uploads/2023/03/Updated-Standard-CAND- g || Trial SurveyMonkey_ 10-2023.pdf; also available under “Attorney Quick Links” on g || https://cand.uscourts.gov/attorneys/) and up to ten additional case specific questions. The jury 19 questionnaire can be formatted so that the answers are either in the form of: (1) a “no” and “if yes, 11 please explain” comment box, or (2) a comment box. Examples of these options are shown below.

13 1. Do you or any close family members or friends have experience working in education? 9 o

O No

A 16 O If yes, please explain.

= 17

Z 18 19 2. Do you or any close family members or friends have experience working in 20 education? 9 o 21 22 é 23 24 25 Accordingly, the parties should review the standard juror questions and jointly propose ten 26 case specific questions by December 1, 2023. The parties should also identify their preference as 27 to the form of answers. 28 With respect to the parties’ jointly submitted questions, the Court does not intend to re-ask

questions that potential jurors would already have asked in the questionnaire. This does not preclude following up on particular answers. To ensure that voir dire does not take an excessive amount of time, the parties should meet and confer as to which questions they believe most important to ask, as the Court does not intend to ask all 66 questions proposed by the parties. Defendants provide a proposed verdict form. (Dkt. No. 111.) Plaintiff provides no proposed verdict form but objects to Defendants’ proposed verdict form as to the following questions. (See Dkt. No. 128.) First, Plaintiff objects to Question Nos. 2-4, which ask if the due process violation was caused by the District Attorney, the Court, or Plaintiff’s Public Defenders. (See Dkt. No. 111 at 2.) Plaintiff argues that the duties of the Superior Court or the District Attorney are not elements at issue in this case because the Court has bifurcated Monell liability. (Dkt. No. 128 at 1.) Whether any due process violation was caused by the Superior Court or the District Attorney are not, however, related to Monell liability. Rather, as explained by the California Supreme Court in analyzing the second Barker factor, “the permissibility of pretrial delay depends to a great extent on who bears responsibility for it and why.” Camacho, 15 Cal. 5th at 384; see also id. (“In analyzing the second factor, courts examine ‘whether the government or the criminal defendant is more to blame for the delay.’”). In other words, who caused the delay is, in fact, one of the factors that a jury must consider in determining whether there was a due process violation. Moreover, it is not apparent to the Court that who caused the delay is an affirmative defense; rather, the party asserting the due process violation has the burden of demonstrating a violation under Barker. Id. at 380. This would include establishing the second Barker factor. Second, Plaintiff objects to Questions 5-12, which separately ask: (a) if a specific public defender violated Plaintiff’s due process rights, and (b) when during the public defender’s representation of Plaintiff did the due process violation occur. (See Dkt. No. 111 at 2-4.) Plaintiff argues that he should not be required to show that each public defender participated in the constitutional violation, and further suggests that Defendants are actually No. 128 at 2-3.) This is not what Questions 5-12 seek to do. Rather, Questions 5-12 appear to be an acknowledgment that Plaintiff’s due process rights could have been violated for a period shorter than the entirety of his incarceration, based on the specific actions of each of his public defenders. For example, if Plaintiff never asked for a trial during Attorney Brown’s representation of Plaintiff, this could mean that there was no due process violation during this period of representation. Thus, the verdict form does not seek to require Plaintiff to demonstrate his due process rights had to be violated by each and every one of his public defenders, but rather seeks to determine when the due process violation occurred. That said, asking eight questions on this issue appears confusing and unnecessarily complicated. Thus, the parties should meet and confer as to whether there is a way to simplify these questions, such as a single question asking when the due process violation occurred. In addition to the joint instructions proposed by the parties, the Court will also include the following preliminary instructions: 1.3 (Duty of Jury), 1.9 (What is Evidence), 1.10 (What is Not Evidence), 1.11 (Evidence for a Limited Purpose), 1.12 (Direct and Circumstantial Evidence), 1.13 (Ruling on Objections), 1.14 (Credibility of Witnesses), 1.15 (Conduct of the Jury), 1.16 (Publicity During Trial), 1.17 (No Transcript Available to the Jury), 1.18 (Taking Notes), 1.20 (Bench Conferences and Recesses), 2.13 (Expert Opinion), 3.1 (Duty to Deliberate), 3.2 (Consideration of Evidence – Conduct of the Jury), 3.3 (Communication with Court), 3.5 (Return of Verdict), and an “Unconscious Bias” instruction. (See Dkt. No. 27 ¶ 6(b).) With respect to the instructions jointly proposed by the parties, the following joint instructions are missing information: 2.3 (Judicial Notice) and 3.6 (Additional Instructions of Law). It is unclear to the Court what judicially noticeable facts or additional instructions of law the parties request instruction on, and thus how to complete these jury instructions. The parties are ordered to meet and confer as to these two joint instructions, and to provide complete information. As to the remaining instructions proposed by the parties, the Court will address these in a 2 The Court intends to impose time limits on each party at trial. The parties are directed to 3 submit (1) Defendant’s projected duration of the direct and cross-examination of each of its 4 witnesses listed in Defendant’s witness list, Dkt. No. 106; (2) the total number of hours projected, 5 particularly in light of the Court’s tentative rulings. These estimates should be realistic, not 6 padded. The parties should be prepared to discuss these estimates during the pretrial conference. 7 The Court may shorten the allotted time as it deems appropriate. 8 The parties should be prepared to discuss options for the public to stream or listen in on the 9 trial, such as by Zoom webinar or other means. The parties should also be prepared to discuss 10 their technology requirements. The parties are generally required to provide all necessary 11 courtroom technology, such as cameras, a projector screen, and a projector. The parties should 12 also be prepared to come to the Court before the trial to test technology. 14 In light of the ongoing pandemic and respiratory virus season, the undersigned is 15 committed to keeping the parties, counsel, witnesses, and court staff as safe as possible. 16 Currently, masking inside the courthouse is determined by the level of community transmission of 17 COVID-19. When a county where a Northern District of California divisional office is located 18 moves to high community transmission, masking will be required in the courthouse. Thus, the 19 Court may impose a mask mandate if the number of community cases rise, or if there is a change 20 in guidance from local public health agencies. 21 Anyone experiencing any symptoms of COVID-19 or other respiratory viruses, including 22 fever or cold-like symptoms, is not permitted to enter the courthouse. If this happens, the parties 23 are directed to notify the courtroom deputy at kawcrd @cand.uscourts.gov, 25 Dated: November 21, 2023

27 United States Magistrate Judge 28