McArthur v. Alameda County Public Defender's Office

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FRANCIS MCARTHUR, Case No. 21-cv-09412-KAW

8 Plaintiff, ORDER REGARDING JURY 9 v. INSTRUCTIONS

10 ALAMEDA COUNTY PUBLIC Re: Dkt. Nos. 109, 117 DEFENDER'S OFFICE, et al., 11 Defendants. 12 13 I. PLAINTIFF’S ADDITIONAL PROPOSED JURY INSTRUCTIONS 14 A. Instruction 1.5 (Claims and Defenses)1 15 This instruction describes the claims and defenses of each party. (Dkt. No. 117 at 1.) 16 Plaintiff proposes the following language, while Defendants object to the underlined language:

17 To help you follow the evidence, I will give you a brief summary of the positions of the parties: 18 The plaintiff asserts that Defendant Alameda County Office of the 19 Public Defender violated his Fourteenth Amendment right to due process by failing to bring his case to trial as required by state 20 statute and the United States Constitution. The plaintiff has the burden of proving these claims. 21 The defendants deny those claims and also contend that plaintiff or 22 other persons or entities caused or contributed to the failure to bring his case to trial. The defendant has the burden of proof on these 23 affirmative defenses.

24 The plaintiff denies that he agreed to knowingly and intentionally waive his right to trial. 25 26

27 1 While Defendants also propose Instruction 1.5, Defendants fail to provide any case-specific 1 First, with respect to the “state statute” language, Defendants contend that Plaintiff has not 2 alleged a violation of any particular state statute, and that a § 1983 claim cannot be based on the 3 violation of a state statute. (Dkt. No. 123 at 1.) Plaintiff does not identify the specific state statute 4 at issue nor does Plaintiff explain how that unidentified state statute gives rise to a due process 5 violation. Indeed, “[a] state statute or regulation creates a liberty interest entitled to protection 6 under the Fourteenth Amendment only when it imposes substantive limitations on official 7 discretion. Establishing a procedural structure for making decisions does not itself create an 8 interest protected by the due process clause.” Manago v. Rowland, No. C-90-20304 MHP, 1990 9 U.S. Dist. LEXIS 13754, at *5 (N.D. Cal. Aug. 17, 1990). It is not the Court’s responsibility to 10 identify the statute or determine how it creates a due process interest. Accordingly, the Court will 11 remove this language. 12 Second, as to the “affirmative defense” language, the Court previously explained that “it is 13 not apparent . . . that who caused the delay is an affirmative defense; rather, the party asserting the 14 due process violation has the burden of demonstrating a violation under Barker [v. Wingo, 407 15 U.S. 514 (1972). Camacho v. Superior Court, 15 Cal. 5th 354, 380 (2023).] This would include 16 establishing the second Barker factor.” (PTC Tentative Rulings at 12, Dkt. No. 136.) Thus, 17 Plaintiff -- as the party asserting the due process violation -- has the burden of demonstrating the 18 violation under Barker. The Court will, therefore, remove this language. 19 Finally, with respect to the “knowingly and intentionally” language, Defendants argue that 20 such language should be stricken because Plaintiff did not cite any authority in support. While it 21 is again not the Court’s responsibility to find legal authority for Plaintiff, courts have generally 22 found that waiver of constitutional rights, including due process, “‘is ordinarily an intentional 23 relinquishment or abandonment of a known right or privilege,’ and must be ‘knowing and 24 voluntary’ to be enforceable.” United States v. Cano-Gomez, No. CR 10-0052 MHP, 2010 U.S. 25 Dist. LEXIS 156936, at *12 (N.D. Cal. Apr. 20, 2010) (quoting Johnson v. Zerbst, 304 U.S. 458, 26 464 (1938); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993)); see also United States 27 v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004) (“Waiver is the intentional relinquishment or 1 U.S. App. LEXIS 13944, at *5 (9th Cir. June 11, 1997) (“[D]ue process rights can be waived if the 2 waiver is knowing and voluntary. D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 175.”). Thus, 3 the Court will allow this language. 4 The Court modifies Plaintiff’s Instruction 1.5 as follows:

5 To help you follow the evidence, I will give you a brief summary of the positions of the parties: 6 The plaintiff asserts that Defendant Alameda County Office of the 7 Public Defender violated his Fourteenth Amendment right to due process by failing to bring his case to trial as required by the United 8 States Constitution. The plaintiff has the burden of proving these claims. 9 The defendants deny those claims and also contend that plaintiff or 10 other persons or entities caused or contributed to the failure to bring his case to trial. 11 The plaintiff denies that he agreed to knowingly and intentionally 12 waive his right to trial. 13 B. Instruction 9.2 (General Principles) 14 Both Plaintiff and Defendants propose an Instruction 9.2, which differ in two respects. 15 Defendants do not object to the first difference, which considers the duties and responsibilities of 16 each “individual” (as opposed to each “individual Defendant”). (Dkt. No. 123 at 3.) 17 Defendants, however, object to Plaintiff’s addition of the final sentence, which states: 18 “During this trial, you will decide whether the acts of the plaintiff’s deputy public defenders, 19 rather than the named defendants, caused a constitutional deprivation.” (Dkt. No. 123 at 3.) 20 Defendants contend that this unduly suggests that the public defenders caused a constitutional 21 deprivation, as opposed to Plaintiff himself. (Id. at 3-4.) The Court generally disagrees. The final 22 sentence acknowledges that the actions of the named Defendants are not at issue at this stage 23 (given the bifurcation of Monell liability). It does not unduly suggest that the public defenders 24 actually caused a constitutional deprivation, or that Plaintiff cannot be responsible for any delay. 25 The Court, however, will modify the final sentence to read as follows (modification 26 underlined): “During this trial, you will decide whether or not the acts of the plaintiff’s deputy 27 public defenders, rather than the named defendants, caused a constitutional deprivation.” 1 C. Instruction 9.3 (§ 1983 Claim) 2 Defendants do not object to this instruction. The Court will therefore issue it as proposed 3 by Plaintiff. 4 D. Instruction 9.31 (Particular Rights – Fourteenth Amendment) 5 Defendants again object to the language that Plaintiff’s waiver of his right to trial must 6 have been knowing and voluntary. (Dkt. No. 123 at 4.) As discussed above, this language is 7 supported by law. The Court will issue the instruction as proposed by Plaintiff. 8 II. DEFENDANTS’ ADDITIONAL PROPOSED INSTRUCTIONS 9 A. Instruction 2.9 (Impeachment Evidence – Witness) 10 Plaintiff argues that this instruction is improper because it is an incomplete and incorrect 11 statement of the law. (Dkt. No. 126 at 4.) Plaintiff, however, fails to explain how this is 12 incomplete and incorrect, particularly when Defendants are proposing the same language as is in 13 the Model Jury Instruction. In the alternative, Plaintiff objects on the same basis as his MIL No. 14 8, but it is unclear how this is applicable given that MIL No. 8 concerns the exclusion of 15 information that Plaintiff’s public defenders do not remember even after they have attempted to 16 refresh their recollection. (Id.) 17 Plaintiff then proposes additional language, namely to suggest the addition of language that 18 evidence that a witness “has a reason to lie in the present case due to demonstrated bias” can be 19 considered. (Dkt. No. 126 at 5.) Such language is inappropriate and unnecessary when the Court 20 already intends to issue Instruction 1.14, which addresses the credibility of witnesses including 21 bias or prejudice. The Court will issue the instruction as proposed by Defendants. 22 B. Instruction 1 (Polk County v. Dodson) 23 Defendants propose a jury instruction based on Polk County v. Dodson, which explains: (1) 24 an individual must be acting under color of state law in order to be liable to the injured party, and 25 (2) individual public defenders are not acting under color of state law, which is why they are not 26 liable under Section 1983. (Dkt. No. 109 at 5.) In short, the purpose of this instruction appears to 27 be to explain why Plaintiff’s public defenders are not named Defendants in this case. 1 may conflate not being liable under § 1983 with not being responsible for the constitutional 2 violation itself. Such confusion appears to outweigh the limited benefit of the jury instruction. 3 Thus, the Court will not issue Instruction 1. 4 C. Instruction 2 (Due Process Violation) 5 Defendants propose the following jury instruction based on Barker, which explains the 6 four-factor balancing test used to determine if there is a due process violation:

7 Plaintiff brings this action for a violation of his due process rights under the Fourteenth Amendment of the Constitution. Plaintiff is not 8 suing for ineffective assistance of counsel. The appropriate analysis for whether Plaintiff’s due process rights were violated is set forth in 9 Barker v. Wingo.

10 In order to prevail on his § 1983 claim against the Defendants, the Plaintiff must prove, by a preponderance of the evidence, that the 11 totality of the following elements tends towards a finding of a violation of Plaintiff’s due process right to a timely trial: 12 1. the length of the pretrial delay; 13 2. the reason for the delay; 14 3. the defendant's assertion of his right to a trial; and 15 4. prejudice to the defendant caused by the delay. 16 Plaintiff in this case carries the burden of demonstrating a speedy 17 trial violation under Barker’s multifactor test.

18 None of the four Barker factors is dispositive and you must use a balancing test to analyze/weigh the conduct of the trial court, the 19 prosecution, the public defender, and the plaintiff.

20 The prosecution (DA) has a duty to ensure the case is moving forward in a manner that is consistent with due process. 21 The court also has an affirmative constitutional obligation to bring 22 the SVP to trial in a timely manner. Because trial courts ultimately control when trial will be held, they bear particular responsibility for 23 preserving an alleged SVP's constitutional right to a timely trial. 24 (Dkt. No. 109 at 7.) 25 First, Plaintiff objects to the references to the trial court and prosecution, including the 26 duty of the prosecution and the court to move the case forward. (Dkt. No. 126 at 7, 9.) Plaintiff 27 argues that these are not elements or requirements of the first Barker factor, which concern the 1 Barker factor, but provides a general overview of the Barker balancing test. 2 That said, the Court agrees that including this language in Instruction 2 places an improper 3 emphasis on the role of the prosecutor and the court. The duty of the prosecution and the court are 4 specific to the second Barker factor, the reason for the delay. See Camacho, 15 Cal. 5th at 384, 5 388. Such information should therefore be included in Instruction 4, which explains the second 6 Barker factor. Thus, the Court will modify the last three paragraphs as follows: “None of the four 7 Barker factors is dispositive and you must use a balancing test to determine whether trial has been 8 unconstitutionally delayed.” See id. at 380; Barker, 407 U.S. at 533. 9 Second, Plaintiff argues (without legal authority) that Instruction 2 misstates the burden of 10 proof because whether third parties contributed to the delay is an affirmative defense. (Dkt. No. 11 126 at 7.) As discussed above, the Court disagrees. See Camacho, 15 Cal. 5th at 380, 383. 12 Third, Plaintiff contends that Instruction 2 is duplicative of Defendants’ proposed 13 Instructions 3-6, which discuss each Barker factor. (Dkt. No. 126 at 7.) The Court disagrees; 14 Instruction 2 provides a general overview of the Barker balancing test, while Instructions 3-6 15 describe how each Barker factor works. 16 Finally, Plaintiff argues that Instruction 2 “ignores the unique factors of this case,” 17 including the parties’ agreements and the bifurcation of Monell liability. (Dkt. No. 126 at 8.) For 18 example, Plaintiff argues there is no dispute over the length of the delay, so it is confusing to 19 identify length of delay as a Barker factor. (Id.) The jury is not being asked to decide individual 20 Barker factors in a vacuum; they are being asked to determine whether there is a due process 21 violation by balancing all four Barker factors, as required by binding Supreme Court authority. 22 Thus, even if there is no dispute as to how long Plaintiff was detained, the length of the delay is 23 still a Barker factor that must be balanced against the other three factors. As to the bifurcation of 24 Monell liability, Plaintiff fails to explain how this affects the Barker balancing test; Plaintiff must 25 still demonstrate a due process violation under the Barker test whether or not Monell liability is at 26 issue. Moreover, to the extent Plaintiff suggests that the Supreme Court’s acknowledgment that 27 balancing the four Barker factors is “difficult” means the jury should not have to conduct the 1 D. Instruction 3 (Barker v. Wingo – First Factor) 2 Defendants propose the following instruction:

3 Length of Delay:

4 Unlike criminal trials, trials in Sexually Violent Predator cases are not subject to statutory time limits. 5 Extended delays in Sexually Violent Predator cases, in some cases 6 more than a decade, are not uncommon. 7 (Dkt. No. 109 at 7.) 8 Plaintiff again objects that including this factor at all is prejudicial and confusing. (Dkt. 9 No. 126 at 10.) As discussed above, the Court disagrees; even if there is no dispute as to how long 10 Plaintiff was detained, a jury is still required to balance this factor with the other Barker factors. 11 In the alternative, Plaintiff contends that Instruction 3 is insufficient because it does not 12 inform the jury of the length of delays that have been found to support a due process violation. 13 (Dkt. No. 126 at 11.) Further, even if delays of more than a decade are “not uncommon,” Plaintiff 14 points out that this does not mean that this factor would not support a due process violation. (Id.) 15 Indeed, the California Supreme Court acknowledged that an eight-year delay “unquestionably 16 supports [a] claim of a constitutional timely trial violation,” even if the California Supreme Court 17 ultimately found no due process violation. 15 Cal. 5th at 383. Thus, as written, Instruction 3 18 appears inadequate. 19 The parties are ordered to meet and confer on Instruction 3, and to jointly propose an 20 alternative. Otherwise, the Court proposes the following language: “The first Barker factor is 21 length of the delay. Whether the length of the delay supports a due process violation is dependent 22 upon the specific circumstances of the case.” See Camacho, 15 Cal. 5th at 383; Barker, 407 U.S. 23 at 530-31. 24 E. Instruction 4 (Barker v. Wingo – Second Factor) 25 Defendants propose the following instruction:

26 The reasons for the delay:

27 When weighing this factor you should consider whether the court, Different weights should be assigned to different reasons. If the DA 1 deliberately delays trial to hamper the defense, for instance, that effort at manipulation should be weighted heavily against the 2 government.

3 A more neutral reason such as negligence or overcrowded courts should be weighted less heavily against the government but 4 nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the DA rather than with the 5 defendant.

6 A valid reason, such as a missing witness, justifies an appropriate delay. 7 If the delay is attributable to the defendant, then waiver of his right 8 to a speedy trial may be given effect under standard waiver doctrine.

9 Delays sought by the defendant’s counsel weigh against the defendant’s claim of a speedy trial violation. This rule flows from 10 the ordinary principle that an attorney is the defendant’s agent when acting, or failing to act, in furtherance of the litigation, such that the 11 client must assume the consequences of the attorney’s delay. 12 (Dkt. No. 109 at 8.) 13 As an initial matter, as discussed above with Instruction 2, information about the duty of 14 the prosecution and the court should be included in Instruction 4, not Instruction 2. The parties 15 should meet and confer on how to properly include this information. 16 First, Plaintiff objects on the ground that Defendants cannot now contend that the public 17 defenders did not delay Plaintiff’s trial because they previously argued that the strategy of delay 18 was intentional and reasonable. (Dkt. No. 126 at 12.) It is unclear how an instruction explaining 19 the second Barker factor is contrary to Defendants’ argument that their trial strategy was 20 reasonable. This is not a reason to not provide this jury instruction. 21 Second, Plaintiff objects that Instruction 4 is incomplete. (Dkt. No. 126 at 13.) For 22 example, Plaintiff points to the jury instruction’s reliance on the “standard waiver doctrine,” but 23 observes that there is no information on what this standard waiver doctrine is. (Id.) Plaintiff also 24 complains that the instruction only provides one example of a valid reason justifying delay, 25 specifically a missing witness. (Id.) Defendants state that they are amenable to providing further 26 information as to the standard waiver doctrine, as well as the removal of the missing witness 27 example. (Dkt. No. 132 at 7.) Rather than put the burden on the Court to craft further language 1 language. 2 Third, Plaintiff objects to the language reciting the principle that an attorney is a 3 defendant’s agent when acting in furtherance of the litigation. (Dkt. No. 126 at 14.) Plaintiff 4 asserts this statement is confusing and duplicative, but does not explain why it is either. Indeed, 5 this is a direct quote from Camacho in explaining how delays sought by a defendant’s counsel 6 affect the analysis of the second Barker factor. See 15 Cal. 5th at 385. 7 Finally, Plaintiff again objects that this should be an affirmative defense. (Dkt. No. 126 at 8 14.) For the same reasons discussed above, the Court disagrees. 9 The Court orders the parties to meet and confer consistent with the above discussion. 10 F. Instruction 5 (Barker v. Wingo – Third Factor) 11 Defendants propose the following instruction:

12 Sexually Violent Predator’s assertion of the right to a timely trial:

13 This factor does not hinge on the number of times the accused acquiesced or objected; rather, the focus is on the surrounding 14 circumstances, such as the timeliness, persistence, and sincerity of the objections, the reasons for the acquiescence, whether the accused 15 was represented by counsel, and the accused’s pretrial conduct (as that conduct bears on the speedy trial right). The totality of the 16 accused's responses to the delay is indicative of whether he or she actually wanted a speedy trial. 17 (Dkt. No. 109 at 9.) 18 Plaintiff objects to the first sentence, namely the use of “Sexually Violent Predator” as 19 prejudicial. (Dkt. No. 126 at 14.) The Court agrees that this language is unnecessary and possibly 20 prejudicial (particularly given that Plaintiff has not been found to be a SVP by a jury), and would 21 instead use the following language: “Plaintiff’s assertion of the right to a timely trial.” 22 To the extent Plaintiff again objects that Instruction 5 is duplicative of Instruction 2, the 23 Court again disagrees as this instruction explains the third Barker factor. 24 G. Instruction 6 (Barker v. Wingo – Fourth Factor) 25 Defendants propose the following instruction: 26 Prejudice: 27 possibility that the defense will be impaired. 1 Prejudice is different in context of civil commitment trials than in 2 the criminal context. A presumption of prejudice does not apply in the Sexually Violent Predator context, because trial on a petition for 3 commitment under the Sexually Violent Predator Act aims to establish whether a person meets the definition of a Sexually Violent 4 Predator at the time of trial. In the SVP context, time ordinarily will not erase critical evidence for the defense, since the jury relies on 5 recent expert evaluations to evaluate whether the individual qualifies as an SVP at the time of trial. Mental status may fluctuate over time, 6 and the jury focuses on the most recent evidence to determine whether the alleged SVP meets the commitment criteria at the time 7 of trial. Prejudice therefore is less likely to result purely as a function of the passage of time. 8 You should not presume prejudice to the Plaintiff based on the 9 length of delay alone before his Sexually Violent Predator trial. 10 (Dkt. No. 109 at 10.) 11 First, Plaintiff objects to the following underlined language: “A presumption of prejudice 12 does not apply in the Sexually Violent Predator context.” (Dkt. No. 126 at 15.) Plaintiff argues 13 that this language is prejudicial because this factor is not limited to SVP cases. (Id.) While it is 14 true that the fourth factor of prejudice applies in all due process analyses under Barker, the 15 language at issue is specific to SVP cases because the California Supreme Court has found that, in 16 contrast to criminal cases, “[t]here is little reason . . . to apply a presumption of trial prejudice in 17 the SVP context.” 15 Cal. 5th at 392. The California Supreme Court explained that SVP cases are 18 different because a petition of commitment must establish whether a person meets the SVP 19 definition at the time of trial. Id. Defendants’ proposed instruction directly quotes Camacho’s 20 explanation. See id. While Plaintiff suggests that the Court should replace “SVP” with “civil 21 commitment,” Plaintiff cites no authority that this same standard would apply in civil commitment 22 cases. (See Dkt. No. 126 at 16.) 23 Second, Plaintiff argues that Defendants’ proposed instruction is incomplete, pointing to 24 the sentence: “Prejudice is different in context of civil commitment trials than in the criminal 25 context.” (Dkt. No. 126 at 16.) Plaintiff contends that this sentence assumes a jury knows 26 something about prejudice in the criminal context. The Court agrees that this sentence is not 27 necessary; the remainder of the paragraph is clear as to how prejudice works in the SVP context. 1 confusing and that the Court should provide a description of the types of evidence that would 2 show prejudice, such as the effect on a plaintiff’s ability to prevail at trial, the fading of memories, 3 or the loss of evidence. (Id.) In Camacho, however, the California Supreme Court used these 4 precise examples to explain why a lengthy delay creates a presumption of prejudice in criminal 5 cases, before concluding that such a presumption does not apply in the SVP context. 15 Cal. 5th 6 at 392. Thus, it would not be accurate to include such examples in the instruction. 7 Third, Plaintiff argues that it is premature to consider prejudice because the parties have 8 stipulated that damages are not at issue in this trial. (Dkt. No. 126 at 16.) Prejudice, however, is 9 one of the Barker factors in determining whether there was a violation of Plaintiff’s due process 10 rights; it cannot simply be ignored. Further, whether Plaintiff suffered prejudice in his ability to 11 bring the case to trial is a distinct matter from how much in monetary damages Plaintiff is entitled 12 to for any violation of his due process rights. 13 Finally, Plaintiff contends that there is other prejudice that might be at issue. (Dkt. No. 14 126 at 17.) Indeed, the California Supreme Court acknowledged that prejudice in the SVP context 15 also includes the interest in preventing oppressive pretrial incarceration and to minimize anxiety 16 and concern of the accused. Camacho, 15 Cal. 5th at 391. Accordingly, the Court will therefore 17 modify the second paragraph as follows: “This factor looks at the interests of defendants which the 18 speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to 19 minimize anxiety and concern of the accused, and (3) to limit the possibility that the defense will 20 be impaired. The most serious interest is the possibility that the defense will be impaired.” See id. 21 To the extent, however, that Plaintiff suggests there are other types of prejudice other than 22 the above, Plaintiff has offered no legal authority. For example, at the pretrial conference, 23 Plaintiff appeared to suggest that he suffered prejudice simply because he did not get a trial after 24 asking for a trial. Again, no legal authority provided by Plaintiff supports this proposition; rather, 25 this appears to be a tactic to avoid the issue of whether Plaintiff would have been found to be a 26 SVP if he had gone to trial. Notably, in Camacho, the California Supreme Court observed that 27 while being held in anticipation of an SVP trial “entails a severe and oppressive restriction on 1 distinguishable from criminal imprisonment because “[p]retrial treatment of the underlying mental 2 disorder that caused the state to seek commitment in the first place may ultimately facilitate the 3 individual’s release before trial.” 15 Cal. 5th at 392-93. Thus, whether there was prejudice 4 “requires a sensitive inquiry into the circumstances of the case. For individuals who have never 5 received a favorable expert evaluation, delay in holding trial will generally entail less prejudice 6 than for individuals who have a more substantial basis for arguing they do not satisfy the criteria 7 for SVP commitment.” Id. at 393. Thus, an assertion that the mere failure to get a trial is alone 8 sufficient to demonstrate prejudice would appear contrary to the California Supreme Court’s 9 emphasis on the effect of any trial delay on a detainee’s defense in determining prejudice. See id. 10 at 393-94 (concluding that the fourth Barker factor did not support a due process violation because 11 although the seven-year delay was significant, there was “no indication that the delay ha[d] 12 undermined the fairness of the proceedings” or had an “appreciable impact on Camacho’s ability 13 to present his defense.”). 14 H. Instruction 7 (Ineffective Assistance of Counsel) 15 Defendants propose the following instruction:

16 Plaintiff is not asserting a claim for ineffective assistance of counsel under the Sixth Amendment. A claim for ineffective assistance of 17 counsel is not a cognizable claim under 42 U.S.C. §1983.

18 Plaintiff cannot sue for conduct undertaken when performing a lawyer's traditional functions, such as entering pleas, making 19 motions, objecting at trial, cross-examining witnesses, and making closing arguments. 20 However, to the extent that Plaintiff argues the strategy used by his 21 attorneys in delaying trial was the wrong strategy, the proper measure of attorney performance remains simply reasonableness 22 under prevailing professional norms. 23 (Dkt. No. 109 at 11.) 24 Plaintiff objects to Instruction 7 as confusing, misleading, prejudicial, and irrelevant 25 because there is no ineffective assistance of counsel claim. (Dkt. No. 126 at 18-19.) The Court 26 agrees. As discussed in the Court’s tentative ruling on Defendants’ sixth motion in limine (which 27 Defendants did not object to during the pretrial conference), simply because certain actions by 1 they are wholly irrelevant to the Barker analysis or whether Plaintiff suffered a due process 2 violation. (See PTC Tentative Rulings at 4.) Evidence such as the failure to regularly 3 communicate with Plaintiff or obtain written waivers may go to the reason for the delay and 4 whether Plaintiff asserted his rights, while evidence that motions were unmeritorious or unlikely 5 to proceed may go to Defendants’ argument that the strategy used by Plaintiff’s public defenders 6 was reasonable. The Court will not give this instruction. 7 I. Instruction 8 (Independence of the Public Defender) 8 Finally, Defendants propose the following instruction:

9 It is the constitutional obligation of the state to respect professional independence of the public defenders whom it engages. The 10 constitution requires that a criminal defendant and Sexually Violent Predator receive effective and independent legal counsel. 11 A public defender opposes the designated representatives of the 12 State. 13 (Dkt. No. 109 at 12 (emphasis added).) 14 First, Plaintiff objects to the underlined language as prejudicial because Plaintiff was not a 15 criminal defendant in the context of this case, nor has he been found to be a SVP by a jury. (Dkt. 16 No. 126 at 19.) Defendants agree to modify the language to read: “The constitution requires that 17 indigent defendants and civil committees receive effective and independent legal counsel.” (Dkt. 18 No. 132 at 11.) As this case does not concern Plaintiff’s status as an indigent defendant, the Court 19 would modify the language further to read: “The constitution requires that civil committees 20 receive effective and independent legal counsel.” 21 Second, Plaintiff objects to the second paragraph as not relevant. (Dkt. No. 126 at 19-20.) 22 Defendants, however, explain that because Camacho distinguished between the role of the district 23 attorney and the public defender, the law regarding the independence of the public defender is 24 relevant to the Barker analysis. The Court will therefore leave this sentence as is. 25 III. CONCLUSION 26 For the reasons discussed above, the Court will: 27 (1) Issue a modified version of Plaintiff’s Instruction 1.5; 1 (3) Issue Plaintiff’s Instruction 9.3; 2 (4) Issue Plaintiffs Instruction 9.31; 3 (5) Issue Defendants’ Instruction 2.9; 4 (6) Not issue Defendants’ Instruction 1; 5 (7) Issue a modified version of Defendants’ Instruction 2; 6 (8) Require the parties to meet and confer as to modifying Defendants’ Instruction 3; 7 (9) Require the parties to meet and confer as to modifying Defendants’ Instruction 4 8 (Barker v. Wingo — Second Factor); 9 (10) Issue a modified version of Defendants’ Instruction 5 (Barker v. Wingo — Third 10 Factor); 11 (11) Issue a modified version of Defendants’ Instruction 6 (Barker v. Wingo — Fourth 12 Factor); 5 13 (12) Not issue Defendants’ Instruction 7 (Ineffective Assistance of Counsel); and 14 (13) Issue a modified version of Defendants’ Instruction 8 (Independence of the Public 3 15 Defender). a 16 The parties are ORDERED to submit joint jury instructions by December 18, 2023. The 3 17 parties shall also e-mail a copy of the above jury instructions with the ordered modifications in 18 standard Word format (.doc or .docx, not .pdf format) to kawpo @cand.uscourts.gov by December 19 18, 2023. 20 IT IS SO ORDERED. 21 Dated: December 13, 2023 □

23 United States Magistrate Judge 24 25 26 27 28