Bolin v. Jill L. Brown, et al

Filing 309

ORDER Excluding Jury Selection Experts from Testifying at Evidentiary Hearing, signed by District Judge Lawrence J. O'Neill on 12/19/2012. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL C. BOLIN,

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Petitioner,
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vs.
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KEVIN CHAPPELL, as Acting Warden of San )
Quentin State Prison,
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Respondent.
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_______________________________________ )

Case No. 1:99-cv-05279 LJO
DEATH PENALTY CASE
ORDER EXCLUDING JURY SELECTION
EXPERTS FROM TESTIFYING AT
EVIDENTIARY HEARING

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On November 16, 2012 the parties filed their expert witness disclosures pursuant to Federal Rule

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of Civil Procedure 26(a)(2). Petitioner Paul C. Bolin (“Bolin”) filed two statements, one by Strickland

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expert James S. Thomson and one by jury selection expert Neil Vidar, Ph.D. Respondent Kevin

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Chappell, as Acting Warden of San Quentin State Prison (the “Warden”), filed one statement, by jury

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selection expert Karen Ginn, Ph.D. The Court has read the reports of both jury experts and concludes

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their testimony shall be excluded at the anticipated March 18, 2013 evidentiary hearing as unreliable.

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Fed.R.Evid.702. Both reports evince opinions which rely on speculation and wholly subjective analyses.

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Karen Ginn, Ph.D.

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Dr. Ginn is psychologist and current president of Verdix Jury Consulting, Inc. In her report, she

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cites the law on venue factors and provides a five-page summary of the facts. Neither the recitation of

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case law nor the summary of the voir dire in Bolin’s trial requires expertise. Her analysis section

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consists of four and one-half pages of subjective views of the trial judge’s clarity, speculative discussions

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about the effect that a change of venue would have on the Kern County community and the community

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to which venue would be transferred (if venue had been transferred), speculative comments about the
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trial attorneys’ motives (such as their perceived strategies), and speculation about whether the chosen

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jurors were better than the ones Bolin would have secured had trial court granted a change of venue.

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Neil J. Vidar, Ph.D.

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Dr. Vidar is a psychologist who teaches at Duke University School of Law. He is not a law

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professor. He explains how he would have counseled Bolin’s attorneys during jury selection had he been

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retained as an expert consultant, that is, renew the motion for change of venue at the culmination of voir

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dire because the prospective jurors demonstrated partiality in the responses, in spite of the attorneys and

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trial judge having been assured by those same jurors to the contrary. He gives his subjective view that

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the America’s Most Wanted (AMW) episode about Bolin blended fact with fiction, portraying Bolin

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negatively and the victims sympathetically. No court needs an expert to render such an opinion; the

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evidence is viewable. Dr. Vidar states that prospective jurors would find it difficult to separate primary

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impressions drawn from the dramatization and the subsequent evidence at trial. He points to

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confirmatory studies finding that “the side of an issue presented first will very often cause subsequent

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information to be filtered through that first impression.” White this might be true, there is nothing of

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a concrete nature to know whether it is true with respect to the individuals who sat on Bolin’s jury. He

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speculates that the necessarily partial prospective jurors who saw the AMW program “likely” influenced

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other prospective jurors in the jury assembly room prior to voir dire. By factoring in juror questionnaires

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that are not available, he further speculates that AMW exposure rate was as high as 62% of the venire.

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He criticizes Bolin’s attorneys in drafting the questionnaire to include information about AMW, thereby

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“push[ing] at least some of the jurors in a particular direction, namely to favor the prosecution over the

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defense.” In the Court’s view, it would have been reversible error to have ignored AMW and not asked

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questions about it.

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Next, he speculates that Juror Lee “felt she had to concede she had no biases, even if that was

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not her state of mind.” He renders a subjective opinion that the jurors were “coached by the judge or

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the prosecutor into saying they could be fair.” Finally, he speculates that “the Bolin jury began

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deliberations with a majority of members biased by these [mentioned] influences, and they very likely

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contaminated the remaining jurors during deliberations.”

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Discussion

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The opinions of both experts will be of no use to the Court in its fact finding process.

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Specifically, under Federal Rule of Evidence 702(a) the experts’ specialized knowledge will not assist

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the Court understand the evidence or determine facts at issue. Nor is the proposed testimony the product

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of reliable principles. Fed.R.Evid.702(c). Finally, neither expert has reliably applied principles to the

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facts of the case. Id., 702(d).

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The Court therefore exercises its gatekeeping function under Daubert v. Merrill Dow

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Pharmaceuticals, Inc. 509 U.S. 579 (1993) to preclude the testimony of both parties’ jury selection

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experts. While the main purpose of Daubert and Kumho Tire Company, Ltd. v. Carmichael, 526 U.S.

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137 (1999) is to protect jurors from being swayed by dubious expert testimony, even in bench trials (or

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evidentiary hearings), the gatekeeping role must be fulfilled. See Metavante Corp. v. Emigrant Sav.

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Bank, 619 F.3d 748, 760 (7th Cir. 2010) (holding that although the court in a bench trial need not make

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reliability determinations before evidence is presented, “the determinations must still be made at some

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point”). The Seventh Circuit further notes that both the Tenth and the Federal Circuits have held the

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Daubert requirement of reliability and relevancy apply to bench trials. Id., citing Attorney Gen. Of Okla.

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v. Tyson Foods, Inc.565 F.3d 769, 779 (10th Cri. 2009); Seaboard Lumber Co. v. United States, 308

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F.3d 1283, 1302 (Fed.Cir.2002). Since the Court now has before it the experts’ respective reports, there

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is no need to hear their testimony before making the reliability decision. Their testimony is precluded.

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IT IS SO ORDERED.

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Dated:

December 19, 2012
/s/ Lawrence J. O’Neill
Lawrence J. O’Neill
United States District Judge

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