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`PAUL C. BOLIN, Petitioner, vs. KEVIN CHAPPELL, as Acting Warden of San
`Quentin State Prison, Respondent.
`
`Case No. 1:99-cv-05279 LJO
`
`UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
`CALIFORNIA
`
`2012 U.S. Dist. LEXIS 179745
`
`December 19, 2012, Decided
`December 19, 2012, Filed
`
`SUBSEQUENT HISTORY: Motion denied by, Without
`prejudice, Motion granted by Bolin v. Chappell, 2012
`U.S. Dist. LEXIS 181275 (E.D. Cal., Dec. 20, 2012)
`
`DEATH PENALTY CASE
`
`PRIOR HISTORY: Bolin v. Chappell, 2012 U.S. Dist.
`LEXIS 171390 (E.D. Cal., Nov. 30, 2012)
`
`ORDER EXCLUDING JURY SELECTION EXPERTS
`FROM TESTIFYING AT EVIDENTIARY HEARING
`
`[*1] For Paul C Bolin, Petitioner: Brian
`COUNSEL:
`Abbington, GOVT, LEAD ATTORNEY, Federal Public
`Defender, Eastern District of California, Sacramento,
`CA; Robert D. Bacon, LEAD ATTORNEY, Robert D.
`Bacon, Attorney At Law, Oakland, CA;
`Joseph
`Schlesinger, Federal Public Defender, Sacramento, CA.
`
`For Kevin Chappell, Respondent: Melissa J. Lipon,
`Attorney General's Office for the State of California,
`Sacramento, CA; Rachelle Anne Newcomb, Ward Allen
`Campbell, California Department of Justice, Sacramento,
`CA; Ryan Blake McCarroll, CA Attorney General's
`Office, Sacramento, CA; Stephanie Ayn Mitchell,
`Attorney General's Office for the State of California,
`Department of Justice, Sacramento, CA.
`
`JUDGES: Lawrence J. O'Neill, United States District
`Judge.
`
`OPINION BY: Lawrence J. O'Neill
`
`OPINION
`
`On November 16, 2012 the parties filed their expert
`witness disclosures pursuant to Federal Rule of Civil
`Procedure 26(a)(2). Petitioner Paul C. Bolin ("Bolin")
`filed two statements, one by Strickland expert James S.
`Thomson and one by jury selection expert Neil Vidar,
`Ph.D. Respondent Kevin Chappell, as Acting Warden of
`San Quentin State Prison (the "Warden"), [*2] filed one
`statement, by jury selection expert Karen Ginn, Ph.D.
`The Court has read the reports of both jury experts and
`concludes their
`testimony shall be excluded at
`the
`anticipated March 18, 2013 evidentiary hearing as
`unreliable. Fed.R.Evid.702. Both reports evince opinions
`which rely on speculation and wholly subjective analyses.
`
`Karen Ginn, Ph.D.
`
`Dr. Ginn is psychologist and current president of
`Verdix Jury Consulting, Inc. In her report, she cites the
`law on venue factors and provides a five-page summary
`of the facts. Neither the recitation of case law nor the
`summary of
`the voir dire in Bolin's trial
`requires
`expertise. Her analysis section consists of four and
`
`1
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`Webasto Exhibit 1038
`Webasto Roof Systems, Inc. v. UUSI, LLC, IPR 2014-00650
`
`

`

`2012 U.S. Dist. LEXIS 179745, *2
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`Page 2
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`one-half pages of subjective views of the trial judge's
`clarity, speculative discussions about the effect that a
`change of venue would have on the Kern County
`community and the community to which venue would be
`transferred (if venue had been transferred), speculative
`comments about the trial attorneys' motives (such as their
`perceived strategies), and speculation about whether the
`chosen jurors were better than the ones Bolin would have
`secured had trial court granted a change of venue.
`
`Neil J. Vidar, Ph.D.
`
`Dr. Vidar is a [*3] psychologist who teaches at
`Duke University School of Law. He is not a law
`professor. He explains how he would have counseled
`Bolin's attorneys during jury selection had he been
`retained as an expert consultant, that is, renew the motion
`for change of venue at
`the culmination of voir dire
`because the prospective jurors demonstrated partiality in
`the responses, in spite of the attorneys and trial judge
`having been assured by those same jurors to the contrary.
`He gives his subjective view that the America's Most
`Wanted (AMW) episode about Bolin blended fact with
`fiction, portraying Bolin negatively and the victims
`sympathetically. No court needs an expert to render such
`an opinion; the evidence is viewable. Dr. Vidar states that
`prospective jurors would find it difficult
`to separate
`primary impressions drawn from the dramatization and
`the
`subsequent
`evidence
`at
`trial. He
`points
`to
`confirmatory studies finding that "the side of an issue
`presented first will very often cause
`subsequent
`information to be filtered through that first impression."
`White this might be true, there is nothing of a concrete
`nature to know whether it is true with respect to the
`individuals who sat on Bolin's jury. [*4] He speculates
`that the necessarily partial prospective jurors who saw the
`AMW program "likely" influenced other prospective
`jurors in the jury assembly room prior to voir dire. By
`factoring in juror questionnaires that are not available, he
`further speculates that AMW exposure rate was as high
`as 62% of the venire. He criticizes Bolin's attorneys in
`drafting the questionnaire to include information about
`AMW, thereby "push[ing] at least some of the jurors in a
`particular direction, namely to favor the prosecution over
`the defense." In the Court's view, it would have been
`reversible error to have ignored AMW and not asked
`questions about it.
`
`Next, he speculates that Juror Lee "felt she had to
`concede she had no biases, even if that was not her state
`
`of mind." He renders a subjective opinion that the jurors
`were "coached by the judge or the prosecutor into saying
`they could be fair." Finally, he speculates that "the Bolin
`jury began deliberations with a majority of members
`biased by these [mentioned] influences, and they very
`likely
`contaminated
`the
`remaining
`jurors
`during
`deliberations."
`
`Discussion
`
`The opinions of both experts will be of no use to the
`Court in its fact finding process. [*5] Specifically, under
`Federal Rule of Evidence 702(a) the experts' specialized
`knowledge will not assist
`the Court understand the
`evidence or determine facts at issue. Nor is the proposed
`testimony
`the
`product
`of
`reliable
`principles.
`Fed.R.Evid.702(c). Finally, neither expert has reliably
`applied principles to the facts of the case. Id., 702(d).
`
`its gatekeeping
`exercises
`therefore
`The Court
`function under Daubert v. Merrill Dow Pharmaceuticals,
`Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
`(1993) to preclude the testimony of both parties' jury
`selection experts. While the main purpose of Daubert and
`Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137,
`119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) is to protect
`jurors from being swayed by dubious expert testimony,
`even in bench trials (or evidentiary hearings),
`the
`gatekeeping role must be fulfilled. See Metavante Corp.
`v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010)
`(holding that although the court in a bench trial need not
`make
`reliability determinations before
`evidence
`is
`presented, "the determinations must still be made at some
`point"). The Seventh Circuit further notes that both the
`Tenth and the Federal Circuits have held the Daubert
`requirement of reliability and relevancy apply to bench
`[*6] trials. Id., citing Attorney Gen. Of Okla. v. Tyson
`Foods, Inc.565 F.3d 769, 779 (10th Cri. 2009); Seaboard
`Lumber Co. v. United States, 308 F.3d 1283, 1302
`(Fed.Cir.2002). Since the Court now has before it the
`experts' respective reports, there is no need to hear their
`testimony before making the reliability decision. Their
`testimony is precluded.
`
`IT IS SO ORDERED.
`
`Dated: December 19, 2012
`
`/s/ Lawrence J. O'Neill
`
`Lawrence J. O'Neill
`
`2
`
`Webasto Exhibit 1038
`Webasto Roof Systems, Inc. v. UUSI, LLC, IPR 2014-00650
`
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`2012 U.S. Dist. LEXIS 179745, *6
`
`Page 3
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`United States District Judge
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`3
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`Webasto Exhibit 1038
`Webasto Roof Systems, Inc. v. UUSI, LLC, IPR 2014-00650
`
`