Metropolitan News-Enterprise


Wednesday, April 29, 2020


Page 3


Ninth Circuit Panel Questions Reasonableness of Precedent

Three Judges Say It Makes No Sense to Order New Trial Because District Court Used Wrong Standard in Barring Expert Testimony, Declaring Retrial Needed Only If Judge, on Remand, Decides Witness Should Be Heard


By a MetNews Staff Writer


A three-judge panel of the Ninth U.S. Circuit Court of Appeals yesterday ordered a new trial for a man who committed a non-fatal stabbing of a fellow inmate of a federal prison, with each of the judges commenting, in a concurring opinion, that precedent requires the new-trial order but that the disposition doesn’t make sense.

What would be logical, the judges argued, would be to retry the case only if the District Court determined, on remand—applying the correct legal standard—that previously excluded expert testimony should be allowed,

In a per curium opinion, the jurists—Circuit Judges Paul J. Watford and Mark J. Bennett, joined by District Court Judge Jed S. Rakoff of the Southern District of New York, sitting by designation—held that the trial court utilized the wrong standard in excluding an expert witness whose testimony was sought by defendant Patrick Bacon in support of his insanity defense. District Court Judge Percy Anderson of the Central District of California on Jan. 12, 2018 barred the testimony because forensic clinical psychologist Nadim Karim would not flat-out say that a mental disease contributed to Bacon’s action.

District Court Ruling

Anderson ruled:

“Dr. Karim’s opinion that an individual who was suffering from a myriad of severe mental health disorders that Mr. Bacon was facing would have had difficulty understanding the nature and quality of his action at the time of the offense conduct is equivocal and will not help the trier of fact to understand the evidence or determine the issue of sanity.”

The Ninth Circuit panel declared yesterday:

“This was the wrong legal standard.”

The focus, the panel said, should have been on whether the testimony would have assisted the jurors in drawing their own conclusions as to “the impact of any serious mental health disease or defect on Bacon” s ability to appreciate the nature and quality of his acts.”

It specified:

“We do not hold that the district court must admit Dr. Karim’s testimony on remand, only that the district court abused its discretion in finding the testimony was not relevant to Bacon” s insanity defense.”

Under Ninth Circuit precedent, the panel noted, a retrial is required.

“Absent intervening Supreme Court authority, we are bound by the prior decisions of this Court,” it acknowledged.

Watford’s Concurring Opinion

In a concurring opinion, Watford, joined by Bennett and Rakoff, said:

“I agree with my colleagues that circuit precedent requires us to remand this case to the district court for a new trial….I write separately to highlight how wasteful of judicial resources that remedy potentially is.”

He elaborated:

“What if, on remand, the district court decides that Dr. Karim’s testimony is insufficiently reliable, and thus must be excluded once again? If that occurs, why in the world should the court hold a new trial at which a second jury will hear the same evidence heard by the jury at the first trial?”

Watford quoted Ninth Circuit Judge Jacqueline H. Nguyen’s concurring and dissenting opinion in the 2014 case of Estate of Barabin v. AstenJohnson, Inc. as saying that it would make more sense to “conditionally vacate the judgment and remand to the district court with instructions to determine whether the disputed expert testimony was admissible” under the relevant court rule and case law.

Watford wrote:

“Under that procedure, if the court determined on remand that Dr. Karim’s testimony is inadmissible, it would simply reinstate the judgment. Only if the court determined that Dr. Karim’s testimony is admissible, and therefore was wrongly kept from the jury at the first trial, would there be a need for a retrial. Since this eminently sensible procedure is forbidden by existing circuit precedent, I reluctantly join the court’s disposition.”

Two Defendants

Bacon and co-defendant/co-appellant Daniel Ray were convicted of assault with a deadly weapon with intent to do bodily harm and assault causing serious bodily injury based on stabbing, with as metal shank, a fellow prisoner at the federal prison in Victorville. Bacon was sentenced to 10 years in prison and Ray drew a term of eight years and four months.

Bacon’s appeal, to the extent it concerned the exclusion of expert testimony, was dealt with in a published decision. Other contentions by the two appellants were rejected in a memorandum opinion.

The cases are United States v. Ray, 18-50115.


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