US v. Diaz, No. 15-50538 (12-6-17)(Christen w/Kleinfeld & Graber). 

How far can an expert go in pronouncing a legal conclusion?  Pretty far.  Here, in a drug distributing prosecution involving a doctor prescribing opiate pills, the prosecutor had to prove there was no legitimate reason for the defendant doctor to prescribe the drugs. To prove that element, the prosecution expert testified that the prescriptions were written "outside the usual course of medical practice" and "without a legitimate purpose."  Counsel did not object.  This mirrored the jury instruction language.  On appeal from the 79 counts, the defendant argued that the expert offered a legal conclusion.  The 9th affirmed the convictions.  Under Fed R Evid 702 and 704, the panel observed that sometimes it is "impossible" for an expert to render an opinion without resorting to the same language that is the applicable legal standard. "We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion." (10). The 9th joins other circuits in this conclusion.

This opinion is important if you have expert cases, and the experts are going to go forth into areas of intent and meaning.  Remember, this was decided using plain error.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/06/15-50538.pdf

 

Rowland v. Chappell, No. 12-99004 (12-6-17)(Owens w/Wardlaw & Clifton).

AEDPA's "extreme deference" to state court decisions resulted in the affirming of a denial of a capital petition.  The 9th agreed with the state Supreme Court that IAC occurred in the late retention of a psychiatrist days before the penalty phase began, and with inadequate preparation.  The 9th deferred to the state supreme court that there was no prejudice.  Likewise, with inappropriate statements by the prosecutor in closing, the 9th again deferred to the state supreme court's conclusion that constitutional rights were not violated.  The 9th agreed with the state supreme court that there was no conflict arising when the defense counsel had a close personal relationship and friendship with the chief investigating officer.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/06/12-99004.pdf