Atwood, et al v. Stewart, et al

Filing 443

ORDER GRANTING Respondents 434 Motion to Preclude Testimony of Strickland Expert. Signed by Judge John C Coughenour on 7/24/13.(BAC)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frank Jarvis Atwood,

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Petitioner,

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DEATH PENALTY CASE

vs.

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No. CV-98-116-TUC-JCC

Charles L. Ryan, et al.,

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ORDER
Respondents.

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Before the Court is Respondents’ Motion to Preclude Testimony of Strickland

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Expert. (Doc. 434.) Petitioner previously filed notice of his intent to rely on testimony

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from a Strickland expert and opposes the instant motion. (Docs. 432, 438.)

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In both its initial scheduling order (Doc. 405) and order resetting the evidentiary

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hearing and discovery deadlines (Doc. 428), the Court indicated that it does not favor the

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use of Strickland legal experts. Petitioner asserts that expert testimony is necessary to

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assist the Court in determining whether sentencing counsel’s failures with regard to the

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investigation and presentation of mitigation evidence were based on tactical decisions in

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light of the standards of practice at the time. The Court has considered Petitioner’s

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arguments, in both the notice of intent to rely on a Strickland expert and the opposition to

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Respondents’ motion to preclude. Although, as Petitioner notes, some judges permit

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such testimony, “it is within a district court’s discretion to exclude proposed expert

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testimony concerning a legal standard of care and to rely solely on the briefs.” Heishman

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v. Ayers, 621 F.3d 1030, 1042 (9th Cir. 2010); see also Hovey v. Ayers, 458 F.3d 892,
910-11 (9th Cir. 2006) (finding no abuse of discretion from exclusion of expert testimony
concerning legal standard of care). Because this Court is well versed in the relevant law
and standards governing sentencing counsel’s representation at the time of Petitioner’s
trial, it finds that expert testimony concerning the prevailing standard of care would not
assist it in understanding the evidence or determining a fact in issue. Fed. R. Evid.
702(a).
IT IS THEREFORE ORDERED that Respondents’ Motion to Preclude
Testimony of Strickland Expert (Doc. 434) is GRANTED.
DATED this 24th day of July, 2013.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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