Salazar, et al v. Stewart, et al

Filing 307

ORDER: IT IS ORDERED that Respondents' 299 Motion to Preclude Strickland Experts is GRANTED IN PART. The Court precludes testimony from Petitioner's Strickland experts on issues other than the relevant prevailing professional norms. Respo ndents objections to Exhibits 111, 164, 177179 and 182184 are OVERRULED. IT IS FURTHER ORDERED that Respondents' 300 Motion to Preclude Evidence of William Redondo's Reputation, Disciplinary Records, and Criminal History is GRANTED. IT IS FURTHER ORDERED Respondents' objections to Exhibits 76 and 77 are SUSTAINED. Signed by Senior Judge Frank R Zapata on 8/10/17.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alfonso Raymond Salazar,
Petitioner,

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v.

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No. CV-96-00085-TUC-FRZ
DEATH-PENALTY CASE

Charles Ryan, et al.,

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ORDER

Respondents.

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Before the Court are Respondents’ Motions to Preclude Strickland Experts (Doc.

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299) and Evidence of William Redondo’s Reputation, Disciplinary Records, and

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Criminal History (Doc. 300). Petitioner opposes the instant motions. (Docs. 301, 302.)

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On August 9, 2017, the Court heard argument on these motions in addition to objections

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to several of the parties proposed exhibits.

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Salazar has provided notice of two witnesses, Russell Stetler and Tim Ford, who

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will testify as experts on the prevailing professional norms for a capital mitigation

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investigation at the time of Petitioner’s trial and post-conviction proceedings. (See Doc.

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292.) Respondents move to preclude these experts or any other witnesses from presenting

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opinions regarding the adequacy of the mitigation investigations or presentations by trial

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counsel William Redondo and Patrick Hurd, and post-conviction counsel Fred Dardis.

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(Doc. 299.) Additionally, Salazar has identified exhibits containing the declarations and

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curriculum vitae of the Strickland experts and several documents that Salazar proposes to

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introduce through these experts. (See Doc. 305, Exs. 111, 164, 177–179, 182–184.)

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Respondents object to these exhibits for the same reasons they object to the testimony of

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these witnesses. (Doc. 293.)

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In assessing the reasonableness of counsels’ investigation and presentation of

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mitigation, the Court must assess counsels’ performance in the context of “‘prevailing

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professional norms,’ . . . which includes a context-dependent consideration of the

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challenged conduct as seen ‘from counsel's perspective at the time.’ ” Wiggins v. Smith,

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539 U.S. 510, 523 (2003) (quoting Strickland v. Washington, 466 U.S. 668, 688–89

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(1984)). The Court is fully qualified to understand and apply the legal analysis required

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by Strickland and it is within the Court’s discretion to allow or exclude proposed expert

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testimony concerning a legal standard of care. Williams v. Woodford, 384 F.3d 567, 613

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n. 17 (9th Cir. 2004) (holding that rejection of a proposed Strickland expert was not a

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prejudicial abuse of discretion); LaGrand v. Stewart, 133 F.3d 1253, 1271 n. 8 (9th Cir.

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1998)(“[T]here is no requirement that expert testimony of outside attorneys be used to

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determine the appropriate standard of care.”). The Court finds that expert testimony on

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the issue of the prevailing professional norms at the time of Petitioner’s trial and post-

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conviction proceedings may be helpful and will therefore allow expert testimony on this

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subject. See Earp v. Cullen, 623 F.3d 1065, 1075 (9th Cir. 2010) (upholding District

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Court’s decision to allow expert testimony regarding “what counsel should have done”

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but precluding expert from opining on the adequacy of trial counsel’s performance). The

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Court will, however, exercise its discretion to preclude expert testimony on the subject of

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the adequacy of trial counsel’s performance and any resulting prejudice therefrom.

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Respondents’ objections to the related exhibits on the same grounds are overruled. To the

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extent the declarations contain statements regarding the experts’ opinions on issues other

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than the prevailing professional norms, the Court will disregard them. Finally, the Court

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will deny Respondents’ request to limit Salazar to one Strickland expert, but hereby

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provides notice that duplicative or cumulative testimony by a second expert will not be

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allowed.

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Next, Salazar has disclosed evidence of trial counsel William Redondo’s

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disciplinary history and criminal conduct. (See Doc. 305; Exs 76–77.) Respondents move

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to preclude evidence of trial counsel Redondo’s poor reputation, disciplinary history, and

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criminal conduct unrelated to his representation of Salazar and object to identified

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supporting exhibits. (Docs. 293, 300.) Respondents assert this evidence is irrelevant to

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the question whether Redondo effectively represented Salazar, and is more prejudicial

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than probative. See Fed. R. Evid. 401–403. Additionally, Respondents contend that

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Redondo’s alleged misconduct in other cases, if offered to show he made similar

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mistakes in Salazar’s case, would constitute inadmissible other-act evidence under Rule

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404(b) of the Federal Rules of Evidence.

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In response, Salazar contends that a demonstration of a pattern of misconduct

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exhibited by prior counsel in his bar records, which exhibits a complete indifference to

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his clients and a failure to protect his clients’ interests, can be used to directly refute the

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state’s argument that prior counsel’s decisions were strategic. In support of this argument,

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Salazar cites Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994). In Sanders, the Ninth

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Circuit considered the bar records of prior counsel as evidence of a “course of conduct

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demonstrating a complete indifference to [prior counsel’s] legal and ethical duties, to the

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great detriment of his clients.” Id. at 1460. The Court found that the evidence of prior

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counsel’s pattern of misconduct directly refuted the state’s argument that counsel’s poor

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performance was based on a strategic decision about how best to represent his client. Id.

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Subsequently, however, the Ninth Circuit has explained that “Sanders does not

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hold that prior instances of misconduct or unrelated complaints to state bar associations

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should ordinarily be admitted as evidence that an attorney acted incompetently or that

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otherwise presumptively reasonable decisions were actually made due to general

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disinterest or other impermissible reasons. Indeed, Sanders did not concern the

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admissibility of such evidence at all.” Bonin v. Calderon, 59 F.3d 815, 828 (9th Cir.

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1995). The essential inquiry is whether the petitioner received objectively reasonable and

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conflict-free representation. Id. Evidence that an attorney has acted inappropriately in

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unrelated cases has little probative value and may therefore be properly excluded

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pursuant to Federal Rule of Evidence 403. Id. Additionally, prior acts of misconduct by

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an attorney are inadmissible to support to support a claim that counsel must have acted

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similarly in a particular case. See Fed. R. Evid. 404(b) (“Evidence of other crimes,

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wrongs, or acts is not admissible to prove the character of a person in order to show

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action in conformity therewith). The Court finds that the evidence Salazar seeks to admit

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is unrelated to counsel’s performance in the present matter. Accordingly, the Court grants

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Respondents motion to preclude evidence of Redondo’s reputation, disciplinary history

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and criminal conduct. The Court will uphold Respondents’ objections to Exhibits 76 and

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77. Accordingly,

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IT IS THEREFORE ORDERED that Respondents’ Motion to Preclude

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Strickland Experts (Doc. 299) is GRANTED IN PART. The Court precludes testimony

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from Petitioner’s Strickland experts on issues other than the relevant prevailing

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professional norms.

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IT IS FURTHER ORDERED that Respondents’ objections to Exhibits 111, 164,
177–179 and 182–184 are OVERRULED.

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IT IS FURTHER ORDERED that Respondents’ Motion to Preclude Evidence of

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William Redondo’s Reputation, Disciplinary Records, and Criminal History (Doc. 300) is

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GRANTED.

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IT IS FURTHER ORDERED Respondents’ objections to Exhibits 76 and 77 are
SUSTAINED.

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Dated this 10th day of August, 2017.

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