United States v. Wells, — F.3d —, 2017 WL 6459199 (9th Cir. Dec. 19, 2017): District court breached Federal of Rule of Evidence 404(a)(1) and (b) by admitting improper expert “profile” testimony and prior act evidence
If Federal Rule of Evidence 404 were the Brady Bunch, Rule 404(b) would be Marcia. Perpetually cited in motions in limine to preclude priors, flaunting its unnecessarily catchy “mimic” rule, tracing its provenance to hoary common law precedents — its sisters could be forgiven for feeling jealous sometimes. But in this case, murder defendant James Michael Wells was fortunate to see lesser-known sibling Rule 404(a)(1) get some serious screen time.
Mr. Wells came under suspicion after two of his co-workers at a U.S. Coast Guard antenna maintenance facility on Kodiak Island, Alaska were found shot to death. The government’s theory was that Mr. Wells planned and executed the murders because of workplace humiliations, compounded by his narcissism. To support its theory, the government presented the expert testimony of a forensic psychologist who painstakingly outlined the profile of a person “who would perpetrate a workplace targeted homicide.” Such a person, the expert explained, would most likely be a pathologically narcissistic male, with a grandiose view of himself and an unreasonable sense of entitlement, who would decide to kill out of humiliations in love or work. Having elicited this bespoke profile of the killer, the government urged the jurors to find that it “fit Mr. Wells to a T.” They did, convicting him of first degree murder. The Ninth Circuit held that this “profile” evidence violated Rule 404(a)(1), which provides that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Or, as Chief Justice Roberts recently put it, “[o]ur law punishes people for what they do, not who they are.” Buck v. Davis, 137 S. Ct. 759, 778 (2017). Because such evidence may not be used in the government’s case-in-chief as substantive evidence of guilt — which is how it was clearly, and prejudicially, used against Mr. Wells — its admission was prejudicial error.
The Ninth Circuit accordingly reversed Mr. Wells’ convictions and remanded the case for a new trial. In addition, noting that the district judge made strongly critical statements at sentencing in respect to Mr. Wells’ continued protestations of innocence, the Ninth Circuit took the unusual step of directing that the case be reassigned to a different judge on remand. Judge Tashima dissented from the reassignment portion of the majority opinion, opining that the district judge could be fair on remand. Judge Nguyen filed a concurrence to distance herself from a portion of the majority opinion that strongly criticized the government for moving to have Mr. Wells’ second appointed counsel removed after the government decided not to seek the death penalty.
(Actually, the Ninth Circuit’s judgment was also based in part on its holding that that the district court erred in admitting evidence regarding a 2003 incident in which Mr. Wells disobeyed an order from a superior, describing the incident as an irrelevant “unexplainable outlier” that was not admissible under Rule 404(b). So yeah, Marcia got some screen time too. So typical.)
(Congratulations to Davina T. Chen of Glendale, California.)
(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)