Nina Alley v. County of Pima

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Louis Taylor, No. CV-15-00152-TUC-RM

10 Plaintiff, ORDER

11 v.

12 County of Pima, et al.,

13 Defendants. 14 15 Pending before the Court is Defendant Pima County’s Motion to Exclude 16 Testimony of Plaintiff’s Expert Andrew Pacheco. (Doc. 350.)1 Plaintiff Louis Taylor 17 (“Taylor”) filed a Response in opposition (Doc. 353; see also Doc. 379), and Pima 18 County filed a Reply (Doc. 357). 19 I. Background 20 In 1972, Taylor was convicted of 28 counts of murder in connection with a deadly 21 fire at the Pioneer Hotel in Tucson, Arizona. (Doc. 340-9 at 12.)2 In 2012, Taylor filed a 22 Petition for Post-Conviction Relief in which he alleged, in relevant part, that: (1) new 23 developments in fire science undermined the evidence of arson introduced during his 24 trial; and (2) the prosecution—led by Deputy Pima County Attorney Horton Weiss 25 (“Weiss”)—committed misconduct, in part by suppressing a report by Truesdail 26 Laboratories (the “Truesdail Report”) that found no evidence of accelerants in debris 27 1 Other pending motions will be resolved separately. 28 2 All record citations refer to the docket and page numbers generated by the Court’s electronic filing system. 1 samples from the Pioneer Hotel. (Doc. 6-1 at 2-63.) Deputy Pima County Attorney Rick 2 Unklesbay (“Unklesbay”) and arson prosecutor Malena Acosta (“Acosta”) reviewed 3 Taylor’s Petition for Post-Conviction Relief. (Doc. 335 at 62 ¶¶ 624, 631; Doc. 367 at 61 4 ¶¶ 624, 631.) The Pima County Attorney thereafter filed a memorandum averring that, if 5 a review of the original evidence in Plaintiff’s case using new advances and techniques in 6 fire investigation were to be considered “newly discovered evidence” for purposes of 7 post-conviction relief, “the state of the evidence [was] such that the State would be 8 unable to proceed with a retrial, and [Taylor’s] convictions would not stand.” (Doc. 6-1 9 at 73.) The Pima County Attorney offered Taylor a plea agreement in which Taylor pled 10 no contest to the original 28 counts of murder in exchange for a time-served sentence. 11 (Id. at 73-74.) A change-of-plea hearing was held on April 2, 2013, and Taylor was 12 released from prison that day. (Doc. 335 at 70-71 ¶¶ 697, 705-707; Doc. 367 at 71-72 ¶ 13 697, 705-707.) 14 Taylor thereafter filed the above-captioned lawsuit. (Doc. 1.) Taylor sues 15 Defendants Pima County and the City of Tucson under 42 U.S.C. § 1983, seeking 16 monetary damages for alleged constitutional violations arising from his 1972 convictions 17 and a declaratory judgment expunging his 2013 convictions as unconstitutional. (Doc. 18 169.) In relevant part, Taylor alleges that Defendants deliberately withheld the Truesdail 19 Report and procured false testimony from trial witness Robert Jackson (“Jackson”). (Id. 20 at 7-9, 22-24.) Taylor also argues that Defendants suppressed exculpatory testimony 21 from Tucson Police Department Officer Claus Bergman (“Bergman”) and that the 22 prosecution failed to disclose alternative suspects, including an individual named Mario 23 Corral (“Corral”). (Id. at 3-4, 8-9; Doc. 349 at 8-11, 17.) 24 II. Andrew Pacheco’s Expert Reports 25 Taylor disclosed an expert report by attorney Andrew Pacheco on July 27, 2021 26 and a rebuttal expert report by Pacheco on November 22, 2021. (Doc. 350 at 3; see Docs. 27 350-2 and 350-3 at 2-26.) Pacheco is currently a partner in the law firm of Ryan Rapp 28 Underwood & Pacheco PLC. (Doc. 350-2 at 17.) He previously worked as a prosecutor 1 for the Maricopa County Attorney’s Office and the United States Attorney’s Office, and 2 in various capacities in the Arizona Attorney General’s Office. (Id. at 16-17.) After 3 reviewing documents provided by Plaintiff’s counsel, Pacheco summarized evidence in 4 this case and rendered the following opinions: 5 1. Under A.R.S. § 11-5532, the Pima County Attorney was the State of 6 Arizona’s agent in Taylor’s prosecution. 7 2. Pima County is legally responsible for all relevant conduct of the Pima 8 County Attorney. 9 3. The Pima County Attorney is a policymaker for Pima County. 10 4. The prosecution violated Taylor’s constitutional rights by withholding the 11 Truesdail Report, failing to disclose the existence of an alternative suspect, 12 suppressing favorable testimony from Bergman, and engaging in an ex 13 parte conversation with the trial judge. 14 5. Pima County and City of Tucson employees conspired to violate Taylor’s 15 constitutional rights by intimidating Jackson into testifying falsely at 16 Taylor’s trial. 17 6. Pima County knew of Weiss’ history of unethical conduct at the time he 18 was prosecuting Taylor’s case but nevertheless continued to employ him as 19 a prosecutor. 20 7. Any prosecutor’s office with which Pacheco is familiar would have noted 21 and acted upon a published appellate opinion criticizing a prosecutor by 22 name, such as the Arizona Supreme Court’s criticism of Weiss in Arizona 23 v. Mercer, 473 P.2d 803, 806 (1970). 24 8. The Pima County Attorney’s Office had a policy of deliberate indifference 25 to prosecutorial misconduct, as evidenced by its failure to take any 26 corrective action related to Weiss. 27 9. Pima County failed to train its employees, including but not limited to 28 Weiss. 1 10. The constitutional violations perpetrated by Weiss resulted from Pima 2 County’s failure to adequately train and supervise its employees and from 3 its deliberate indifference to prosecutorial misconduct. 4 11. Liability is appropriate under Monell v. Department of Social Services. of 5 New York City, 436 U.S. 658 (178) and City of Canton v. Harris, 489 U.S. 6 378 (1989). 7 12. Taylor’s 1972 convictions were unconstitutional. 8 13. It is unconstitutional and improper for a prosecutor to require a defendant to 9 plead guilty or no contest when the prosecution knows it cannot prove the 10 crime beyond a reasonable doubt. 11 14. Taylor’s 2013 convictions are unconstitutional. 12 15. The Pioneer Hotel fire was not arson. 13 16. Taylor is innocent. 14 (Id. at 17-50.) 15 In his rebuttal report, Pacheco summarizes additional evidence and renders the 16 following additional opinions: 17 1. Former Pima County Attorney Barbara LaWall (“LaWall”) improperly 18 instructed Unklesbay regarding the scope of his review of Taylor’s Petition 19 for Post-Conviction Relief. 20 2. The Pima County Attorney’s Office violated Taylor’s due process rights by 21 not investigating the prosecutorial misconduct alleged in Taylor’s Petition 22 for Post-Conviction Relief and by requiring Taylor to plead no contest to 28 23 counts of murder in exchange for his release from prison. 24 3. Any experienced prosecutor would understand that an exonerated defendant 25 poses a greater risk of financial exposure to the prosecutor’s office than a 26 convicted felon. 27 4. Financial considerations likely contributed to Pima County’s decision to 28 require a no-contest plea from Taylor in 2013. 1 5. Pima County’s position that the Pioneer Hotel fire was arson is not 2 scientifically defensible. 3 6. The prosecution violated Brady v. Maryland by failing to disclose evidence 4 concerning Corral’s involvement in the Pioneer Hotel fire. 5 7. No reasonable prosecutor could conclude that Taylor committed arson and 6 murder. 7 (Doc. 350-3 at 2-26.) 8 III. Legal Standard 9 Admissibility of expert testimony is governed by Rule 702 of the Federal Rules of 10 Evidence, which provides: 11 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: 12 (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in 13 issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the 14 expert has reliably applied the principles and methods to the facts of the case. 15 Fed. R. Evid. 702. This rule imposes a special gatekeeping obligation on the trial court to 16 ensure that “the reasoning or methodology” underlying an expert’s testimony is valid and 17 can properly “be applied to the facts in issue.” Daubert v. Merrell Dow Pharms, Inc., 18 509 U.S. 579, 592-93 (1993). The gatekeeping function articulated in Daubert applies to 19 “all expert testimony,” including testimony based on “technical” and “other specialized” 20 knowledge in addition to testimony based on “scientific” knowledge. Kumho Tire Co. v. 21 Carmichael, 526 U.S. 137, 141, 147 (1999). For purposes of Rule 702, the term 22 “‘knowledge’ connotes more than subjective belief or unsupported speculation.” 23 Daubert, 509 U.S. at 590. 24 “Expert testimony should be excluded if it concerns a subject improper for expert 25 testimony” such as “one that invades the province of the jury.” United States v. 26 Lukashov, 694 F.3d 1107, 1116 (9th Cir. 2012) (internal quotation marks omitted). 27 Determining the credibility of witnesses, resolving evidentiary conflicts, and drawing 28 reasonable inferences from proven facts are functions within the exclusive province of 1 the jury. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (per curiam) (internal 2 quotation marks omitted). “Resolving doubtful questions of law” and instructing the jury 3 on the law are functions within the “exclusive province of the trial judge.” United States 4 v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993) (internal quotation marks omitted). 5 Accordingly, expert witnesses cannot opine on other witnesses’ credibility, Engesser v. 6 Dooley, 457 F.3d 731, 736 (8th Cir. 2006), nor can they tell the jury what result to reach, 7 United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994). Furthermore, although an 8 expert’s “opinion is not objectionable just because it embraces an ultimate issue,” Fed. R. 9 Evid. 704(a), “an expert witness cannot give an opinion as to her legal conclusion, i.e., an 10 opinion on an ultimate issue of law,” Hangarter v. Provident Life & Accident Ins. Co., 11 373 F.3d 998, 1016 (9th Cir. 2004) (internal quotation omitted, emphasis in original). 12 Expert testimony may constitute an impermissible legal conclusion if the terms used by 13 the expert witness “have a specialized meaning in law” or “represent an attempt to 14 instruct the jury on the law, or how to apply the law to the facts of the case.” United 15 States v. Diaz, 876 F.3d 1194, 1199 (9th Cir. 2017). 16 Expert testimony is also inadmissible if it simply “presents a narrative of the case 17 which a lay juror is equally capable of constructing.” Taylor v. Evans, No. 94-CV-8425 18 (CSH), 1997 WL 154010, at *2 (S.D.N.Y. Apr. 1, 1997); see also Aya Healthcare Servs., 19 Inc. v. AMN Healthcare, Inc., No. 17-cv-205-MMA(MDD), 2020 WL 2553181, at *6 20 (S.D. Cal. May 20, 2020) (“expert testimony cannot be presented to the jury solely for the 21 purpose of constructing a factual narrative based upon record evidence”). 22 IV. Discussion 23 Pima County argues that Pacheco’s opinions are unreliable because they are based 24 on speculation and subjective beliefs rather than any identifiable methodology; because 25 Pacheco reviewed only documents cherry-picked by Plaintiff’s counsel and failed to 26 consider contradictory evidence; and because the opinions do little more than summarize 27 Plaintiff’s legal arguments. (Doc. 350 at 7-13; Doc. 357 at 4-7.) Pima County also 28 argues that Pacheco’s opinions will not assist the trier of fact in understanding the 1 evidence or determining a fact in issue because Pacheco constructs a factual narrative 2 based on his own perception of documentary evidence, makes improper credibility 3 determinations, and offers impermissible legal conclusions. (Doc. 350 at 13-17; Doc. 4 357 at 7-11.) 5 In response, Taylor argues that Pacheco is qualified and has specialized 6 knowledge that will assist the jury, that Pima County’s Motion is untimely because it was 7 not filed before the close of discovery, that Daubert is inapplicable, and that Pima 8 County’s challenges to Pacheco’s testimony are matters for cross-examination. (Doc. 9 353.) Taylor denies that Pacheco will opine on witness credibility or that his testimony 10 will “include legal conclusions that are in doubt.” (Id. at 7.)3 11 As an initial matter, the Court rejects Taylor’s argument that Pima County’s 12 Motion is untimely. A deadline for filing motions in limine and Daubert motions has not 13 yet been set, much less expired, and any attempt to file Daubert motions before the close 14 of discovery would have been premature. The Court also rejects Taylor’s contention that 15 Daubert is inapplicable, as the Supreme Court has made clear that Daubert applies not 16 only to expert testimony based on “scientific” knowledge but also to expert testimony 17 based on “other specialized” knowledge. Kumho Tire Co., 526 U.S. at 141, 147.4 18 The Court agrees with Pima County that the vast majority of Pacheco’s opinions 19 are inadmissible. In large part, Pacheco’s expert reports simply construct factual 20 narratives based on the documentary evidence that Pacheco reviewed; such expert 21 testimony is inadmissible because a jury is equally capable of constructing factual

22 3 Counsel for Pima County did not certify in the Motion that Pima County conferred in good faith prior to filing the Motion. See LRCiv 7.2(l) (“No opposed motion in limine 23 will be considered or decided unless moving counsel certifies therein that the movant has in good faith conferred or attempted to confer with the opposing party or counsel in an 24 effort to resolve disputed evidentiary issues that are the subject of the motion.”) However, Taylor does not make any arguments concerning LRCiv 7.2(l) in his Response, 25 and LRCiv 7.2(l) does not necessarily preclude consideration of Pima County’s Daubert arguments. See Alsadi v. Intel Corp., No. CV- 16-03738-PHX-DGC, 2019 WL 4849482, 26 at *1 n.1 (D. Ariz. Sept. 30, 2019) (finding LRCiv 7.(l) inapplicable to Daubert motions). 4 In arguing that Daubert is inapplicable, Plaintiff cites McKendall v. Crown Control 27 Corp., 122 F.3d 803, 806 (9th Cir. 1997). (Doc. 353 at 4.) But as the Ninth Circuit has specifically recognized, “McKendall’s holding that ‘the Daubert factors are relevant only 28 to testimony bearing on scientific knowledge . . .’ has been overruled.” Grodzitsky v. Am. Honda Motor Co., 957 F.3d 979, 987 (9th Cir. 2020). 1 narratives based on the documentary evidence and witness testimony presented at trial.5 2 Pacheco’s factual narratives also impermissibly rely upon implicit credibility 3 determinations and Pacheco’s resolution of evidentiary conflicts. In addition, Pacheco 4 offers opinions that impermissibly invade the province of the Court to instruct the jury on 5 the applicable law and the province of the jury to apply that law to the facts and 6 determine what result to reach. See Diaz, 876 F.3d at 1199. 7 Pacheco offers four potentially admissible opinions: (1) that any prosecutor’s 8 office with which he is familiar would immediately note and act upon a published 9 appellate opinion that criticized a prosecutor by name (Doc. 350-2 at 19, 38); (2) that it is 10 improper for a prosecutor to require a defendant to plead no contest when the prosecutor 11 knows guilt cannot be proven beyond a reasonable doubt (id. at 33-34); (3) that LaWall 12 improperly instructed Unklesbay regarding the scope of his review of Taylor’s Petition 13 for Post-Conviction Relief; and (4) that any experienced prosecutor would understand 14 that an exonerated defendant poses a greater risk of financial exposure to the prosecutor’s 15 office than a convicted felon (Doc. 350-3 at 20). The remainder of the opinions set forth 16 in Pacheco’s report are inadmissible. 17 . . . . 18 . . . . 19 . . . . 20 . . . . 21 . . . . 22 . . . . 23 . . . . 24 5 Pacheco’s report also contains factual inaccuracies. For example, Pacheco falsely states 25 that Taylor was convicted of 29 counts of murder (Doc. 350-2 at 2-3), when Taylor was actually convicted of 28 counts of murder (Doc. 340-9 at 12). In addition, Pacheco 26 falsely states that the prosecution’s expert Cyrillis Holmes testified at Taylor’s trial that an accelerant was used to start the Pioneer Hotel Fire. (Doc. 350-2 at 22, 25-26.) 27 Pacheco even opines that the “presence of accelerants” was a “lynchpin” of Holmes’s opinion that the Pioneer Hotel fire was caused by arson. (Id. at 25.) In actuality, Holmes 28 testified that the evidence did not indicate an accelerant was used to start the Pioneer Hotel fire. (See Doc. 338-1 at 43; Doc. 338-5 at 139-140; Doc. 338-6 at 100.) 1 IT IS ORDERED that Defendant’s Motion to Exclude Testimony of □□□□□□□□□□□ || Expert Andrew Pacheco (Doc. 350) is partially granted and partially denied, as set || forth above. 4 Dated this 24th day of March, 2023. 5 6 1 a th by) 8 WNGUE Honorable Rostsiary □□□□□□□ 9 United States District □□□□□ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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