Sunday, May 03, 2020

Case o' The Week: Expert Win Means Try it Again - Ray and Defense Psych Experts

   Retrial win, to panel’s chagrin.
United States v. Ray, 2020 WL 2029260 (9th Cir. Apr. 28, 2020), decision available here.

Players: Per curiam decision, joined by Judges Watford, Bennett, and visiting District Judge Radkoff.
  (Disgruntled) concurrence by Judge Watford, joined by Jude Bennett and District Judge Radkoff.

Facts: Ray and his co-D, Bacon, were incarcerated at Victorville. Id. at *2. Security cameras recorded Ray and Bacon exchanging a book, Bacon extracting something from it, and then Bacon stabbing an inmate with a shank. Id. 
  The men were charged with federal assault counts. Before trial Bacon gave notice under Fed. R. Crim. Proc. 12.2 of his intent to assert an insanity defense. Id. In support of this defense, Bacon noticed a forensic clinical psychologist. The district court barred the testimony, finding it not relevant. Id. The court then barred Bacon’s insanity defense. Id. at *3. The pair were convicted after a two-day trial. Id. at *2.   

Issue(s): “On appeal Bacon argues that the district court should have allowed his forensic clinical expert psychologist, Dr. Karim, to testify, which would have allowed him to present his insanity defense to the jury.” Id. at *1.

Held: “We hold that the district court abused its discretion in excluding Dr. Karim’s testimony because the testimony was relevant to Bacon’s defense. Because this error was not harmless, and we cannot tell from the record whether the testimony was reliable, we must vacate Bacon’s conviction and remand for a new trial.” Id. at *1 (footnotes omitted).
  “[T]he district court abused its discretion by precluding Dr. Karim’s testimony because he did not opine that Bacon was unable to appreciate the nature and quality of his acts at the time of the assault. This was the wrong legal standard. Instead, the district court should have focused on whether Dr. Karim’s testimony would have assisted the jury ‘in drawing its own conclusion as to a ‘fact in issue,’ —the impact of any serious mental health disease or defect on Bacon’s ability to appreciate the nature and quality of his acts. If otherwise admissible, Dr. Karim’s expert testimony ‘would have been highly probative’ of Bacon’s mental state and ‘unlikely to cause significant confusion with the jury if properly constrained by compliance with the rules of evidence.’ . . . Thus, even if the district court had explained the Rule 403 exclusion, it likely would have abused its discretion. With no explanation, it clearly did so.Id. at *4 (citation and quotations omitted).

Of Note: The Ninth remands to the district court to consider the expert again, and for a new trial – regardless of whether or not the district court finds the defense expert admissible. That outcome is a burr under Judge Watford’s saddle, who complains about the Ninth’s “new trial” rule in a concurrence. Id. at *5 (Watford, J., concurring). The origins of this welcome ‘new trial’ rule? The Ninth’s decision in Estate of Barabin, extended to criminal trials in 2014 in United States v. Christian. 
  Academics will continue to debate the circuit split caused by Barabin and Christian – but for us in the trenches, the lesson is that we may get a full-trial ‘do-over’ when the district court guesses wrong and erroneously excludes a defense expert witness. Remind the DJ of this likely outcome when its FRE 702 / 704 analysis is hot and hostile to your defense expert.

How to Use: Ray is an accessible case on the proper analysis for the admissibility of experts. Here, the DJ goofed by rejecting the relevance of the shrink’s ultimate conclusion, instead of the relevance of the psych eval and medical diagnosis. Id. at *3. Read Ray when pitching a defense shrink: it provides a helpful blueprint.
For Further Reading: The Fed’s Terminal Island incarcerates over 1,000 men. Over 600 inmates are now COVID-19 positive: four have died. See ABC Article here.

  Widespread testing at Lompoc likely to start tomorrow: brace for skyrocketing numbers from that prison as well.

Image of “Psychiatric Expert Witness” from

Image of Terminal Island and COVID-19 measures from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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