ESTATE OF MI KAL R. GAI THER, by and through Pearl Ga ither, Persona l Represe ntative, Plaintiff,

v. DI STRI CT OF COLUMBIA, et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 03-01458 ( CKK)

MEMORAN DUM OP INION AND ORDER

(De cembe r 19, 2011) Plaintiff Pearl Ga ither (“ Plaintiff”), the r epre sentative of the estate of Mikal R. Gaither (“G aither” ), bring s this action ag ainst the District of Columbia (the “D istrict”) a nd a ser ies of individual defenda

nts seekingdamag es in conne ction with Gaither’ s fatal stabbingwhile he wa s incar cer ated pe nding se ntencing at the District’s Centra l Detention Fa cility . Plaintiff has indicated a

n intention to present expert testimony at trial fr om Michele Rober ts, Esq. (“Roberts” )

conce rning the sentenc e Ga ither likely would have r ece ived had he survived in support of he r alleg ed dama g es. The ma tter come s to this C ourt on the District’s [113] Motion to S trike Plaintiff’s Ex pert Miche lle [si c] Roberts, Esq. (“Motion to Strike”); the Honor able Ma g istrate J udg e Alan K ay ’s [120] Memorandum Or der r esolving the District’s Motion to St rike; Plaintiff’s [235] Updated Me morandum in Support of Expert Testimony of Plaintiff’s Sentenc ing E x pert; the District’s [246] Updated Me morandum in Opposition to P laintiff’s Updated Memora ndum in Support of Plaintiff’s SentencingEx pert; and Plaintiff’s [236] Mot ion for L eave to Supplement Ex pert Repor

t of Michele Robe rts, Esq. (“Motion to Supplement”). Upon c onsideration of the parties’ submissi ons, the rele vant authorities, and the rec ord as a whole, the Court conc urs withMag istrate Judge K ay that Roberts should be pre cluded f rom testifying a s to her opinion of the sentenc e that Ga ither likely would have r ece ived in his criminal case . Howeve r, the Court finds that Roberts may

provide g ener alized testimony about the fa ctors that a judg e mig ht take into

acc ount in the course of

sentenc ing a

criminal def

endant, a n issue that was not addr essed by Mag istrate Judge K ay

in his Memorandum Orde r.

I. BACKG ROUND The Court assumes f

amiliarity with its prior opinions i n this action, which set for th in detail the extensive fac tual and proc edura l backg round of this ca se. On Dec ember

14, 2002, Gaither

was fa tally stabbed by

a fe llow inmate while incar cer ated at the District’s Centra l Detention Fa cility . A subsequent investig ation conclude d that two of Gaither ’s fe llow inmates had for ced G aither into an ope n cell and pr ocee ded to stab him, and indications were that Gaither had bee n killed beca

use of his involvement in a g rand jury investigation into t he murde r of a n individual by

the name of

Kenne th Muldrow. Plaintiff bring s this action on behalf of Gaither ’s estate . She asser ts claims under, inter alia , Section 1 of the Ku K lux Act of 1871, Rev. Stat. § 1979, as a mended, 42 U.S.C. § 1983, ag ainst the District and a

series of individual officials and c orre ctional offic ers, se eking compensatory

damag es ag ainst eac h defe ndant in the amount of $10 million. Significa ntly , at the time of his death, Gaither ha d alre ady pleade d g uilty

to one fe lony count of distribution of coca ine and wa s awa iting sente ncingin the Superior Court of the D istrict of Columbia by

the Honora

ble J udg e Noë l Anketell Kra mer, who w as then the Pre siding Judge

2of the Criminal Division. Under the statute that applied at the time, Gaither’ s conviction ca rried 1 a possible sentenc e ra

ng ing f rom probation to thirty

y ear s’ incar cer ation. SeeD.C. C O D E § 33- 541(a) (1) ( 1981). Due to Gaither’ s untimely death, his ac tual sentenc e will never be known. Neve rtheless, be cause the par ties ag ree that Gaither

would not have suff

ere d lost wag es for

any period that he was inca

rce rate d, the sentenc e Ga ither likely would have r ece ived is an important ingr edient of G aither’ s lifetime ear ning pote ntial, which in turn is a larg e par t of Plaintiff’s claimed c ompensatory

damag es in this case. D istil ling the matter to its essence , should the jury

ever need to r eac h the issue, the less time it finds that Gaither w ould have spe nt in jail, the g reater Plaintiff’s da

mag es. For this reason, duringthe cour se of discove ry , Plaintiff desig nated Rober ts to testify

as a “sente ncingexpert” and, more prec isely , to provide an opinion as to the se ntence that Gaither likely would have r ece ived had he lived. Roberts subsequently prepa red, a nd Plaintiff produce d, 2 a thre e-pa g e wr itten report, in which she stated her “opinion that, had he lived, Mr . Gaither would have be en sente nced to pr obation for his first fe lony conviction on a sing le count of distribution of cocaine .” Report of Michele A . Roberts, Esq. (“Robe rts’ Rep.”) , ECF No. [113- 3], at 1. Accordingto her re port, Roberts base d her opinion on the following : (1) Her

experience repr esentingcriminal def endants in the District of Columbia; (2) Her

experience as a me mber of the SentencingCommi ssion for the District of

I n 2005, J udg e Kr amer

was a ppointed an Associate J ustice of the D istrict of Columbia 1 Court of Appea ls. Neither side sug g ests that J udg e Kr amer ever rea ched a

decision about how she would 2 actua lly sentenc e Ga ither. In any event, e thical consider ations preve nt J udg e Kr amer from testifying in this ca se. SeeDec l. of J ohn Moustakas, Esq., ECF N o. [235-10] , ¶ 2. 3Columbi a;

(3) Her

revie w of historica l sentencingdata a nd g uidelines; (4) Her

revie w of infor

mation bear ing on G aither’ s char acte r, upbring ing, a nd family history and cir cumstance s; and (5) Her

revie w of infor

mation in documents provided by Plaintiff’s counsel. See id. at 1. Whil e ac knowledg ing tha t “the statutory

maxi mum sentence for distribution of coc aine was 10 to 30 y ear s at the time of Mr. Ga ither’s off ense,” Roberts opines in her r eport that “ a defe ndant without a prior f elony conviction was more likely than not to rec eive a

sentenc e of probation upon convic tion for this offense , both acc ording to the rele vant historical data and based on [her] own experienc e.” Id. Acc ording to Roberts, “[t] hat is beca use judg es we re g ener ally conce rned a

bout proportionality

in sentencing

— i.e. , treating like of

fende rs alike—a

nd, conseque ntly , exercised their sentenc ing disc retion in a manne r that took into acc ount criminal history as we ll as miti g ating fac tors.” Id. In her r eport, Rober ts identifies three “ ag g ravating fac tors” and nine “mitigating f actor s” that she conte nds supports her opinion that Gaither likely 3 would have r ece ived probation as a sentenc e. Id. at 2-3. The three ag g ravating f actor s include: (1) Gaither ’s testing positive for coc aine on thre e occ asions—on September 19, September 30, a

nd October

3, 2002, while under

pretria l supervision and in violation of his conditions of relea se and a fter his g raduation from a thre e-month

Consist ent with the par

ties’ usag e, the Court shall loosely use the ter

ms “ag g ravating 3 fac tors” and “ mitigatingfac tors” whe n speakingof fa ctors neg atively and positively

aff ectinga criminal def

endant’ s sentence , rathe r than a s terms of ar t often used in conne ction with standardized sente ncingg uidelines. 4Har bor L ights re sidential drugtreatment prog ram; (2) Gaither ’s two prior misdemea nor convic tions for possession of marijuana ; and (3) Gaither ’s pendingchar g e of f elony possession with intent to di stribute coca ine, which wa s set to be dismissed at sentencingbut was nonethe less pendingas of his death. See id. at 2. Mea

nwhile, the nine mitiga

ting f actor s identified by

Roberts in her r eport a

re a s follows: (1) Events in Gaither ’s life that we re “ beyond his control” that “c aused him to spiral into despair,” inc luding the de ath of his sister, which Rober ts indicates led Ga ither to beg in using drug s and to sell drug s to “fee d his habit”; (2) Gaither ’s demonstrate d “ability to succe ed under

court super

vision,” having

succe ssfully

completed pr obation in his two prior misdemeanor c ases; (3) Gaither ’s succ essful completion of a three -month residential drugreha bilitation prog ram, e ven thoug h he “suf fer ed a r elapse afte r leaving the program,” and his active se arc h for “ further

drugreha

bilitation”; (4) Gaither ’s “de eply

car ing a nd supportive family ”; (5) Gaither ’s ac cess to “e x cellent r ole models,” in par ticular his mother a

nd two older brothers, a ll of whom had “longand stea dy work histories”; (6) Gaither ’s “pr ior work history”; (7) Gaither ’s g enuine inter est in “improving his prospects,” inc luding “ developing marke table wor

k skills”; (8) J udg e Kr amer ’s attenda nce at Gaither’ s g radua

tion from the drugreha

bilitation

5prog ram a nd his funera l; and (9) Gaither ’s voluntary cooper ation with a g rand jury investigation of the murder of Kenne th Muldrow. Id. at 2-3. Be lieving that Roberts’ opinion, as set forth in her written re port, did not satisfy the require ments of Rule 702 of the F eder al Rules of Evidenc e, the District f iled its [ 113] Mot ion to Strike, seekingto prec lude Roberts fr om testifying on how a pre siding judg e may

have r uled in Gaither ’s ca se. See Mem. of P. & A . in Supp. of Defs.’ Mot. to Strike Pl.’s Ex pert Miche lle [si c] Roberts, ECF No. [113]. P laintiff subsequently filed an opposition, the District filed a reply , and, with the Court’s leave, Plaintiff filed a surre ply

. SeePl.’s Opp’n to the District of Columbi a’s Mot. to Strike Pl.’s Sentencing Ex pert Rober ts, ECF No. [114] ; Def. D istrict of Columbi a’s Reply

to Pl.’s Opp’n to the District of Columbia’s Mot. to S trike Expert Michelle [si c] Roberts, ECF No. [115] ; Pl.’s S ur-Reply in Opp’n to the District of Columbia’s Mot. to Strike Pl.’s Ex perts, ECF N o. [119] . I n a deta iled [120] Memorandum Or der, Ma g istrate Judge Kay , to whom this action was re fer red unde r L ocal Civil Rule 72.2(a), g rante d the District’s Motion to S trike in rele vant par t. Mag istrate Judge K ay

conclude d that Roberts should be prec luded from testify

ing a s to the opinion that Gaither likely would have r ece ived probation had he lived, findingthat the methodolog y underlying he r opinion, as re flec ted in her thre e-pa g e written re port, failed to mee t the standards of reliability

set forth in Rule 702. Mag istrate Judge Kay was ne ither aske d to, nor did, determine whether Roberts could provide mor e g ener alized testimony , such as testimony about the fa ctors judg es ar e likely to consider whe n sentenc ing a criminal def

endant.

6Subsequently , Plaintiff filed objections to Mag istrate Judge K ay ’s ruling , and the District

filed a r esponse to those objec tions. SeePl.’s Mem. of L aw in Supp. of He r Objec tions to Mag istrate Judge K ay ’s Orde r Gra nting in Part the D istrict’s Mot. to S trike Pl.’s Ex perts, ECF No. [126-1] ; Def. D istrict of Columbia’s Mem. of P. & A. in Opp’ n to Pl.’s Mem. of L aw in Supp. of Her O bjections to J udg e Ka y ’s Orde r Gra

nting the D istrict’s Mot. to S trike Pl.’s SentencingEx pert, ECF No. [129] . The Court hea rd ora l argument on Plaintiff’s objections, during which the Court ra ised various que stions concer ning Robe rts’ methodolog y and her ultimate conclusion. See Tr. of Status Hr’ g , ECF No. [187]. L ater , without objection, the Court held a thoroug h Daubert

hear ing, duringwhich the pa rties had a

full and fa ir opportunity

to 4 probe the reliability

of Roberts’ me thodology and conc lusions. SeeTr. of D auber t Hr’g , ECF No. [188] . Followingthe hea ring , the par

ties filed supplemental memora nda addr essing the reliability of Roberts’ pr offe red te stimony

. SeeDef . District of Columbia’s Suppl. Mem. of P. & A. in Opp’n to Pl.’s Objections to J udg e Ka y ’s Orde r Gra

nting the D istrict’s Mot. to S trike Michele Rober

ts, Esq., as a Sentenc ing E x pert in this Case, ECF No. [153]; P l.’s Am. Opp’n to Def s.’ Suppl. Mem. of P. & A. in Opp’ n to Pl.’s Objections to Magistrate’s Or der Striking Pl.’s SentencingReport, ECF No. [172-1]; Pl.’s Am. Notice of F iling of Sig ned De cl. of Miche le A. Roberts, Esq., ECF No. [177]; Def s.’ Reply to Pl.’s Opp’n to Defs.’ Suppl. Mem. of P. & A. in Opp’n to Pl.’s Mem. of L aw in Supp. of He r Objec tions to J udg e Ka y ’s Orde r Gra

nting in Part the District’s Motion to St rike Pl.’s Experts, ECF No. [176]

. There afte r, a numbe r of de velopments cha ng ed the landsc ape of

this case. Most notably , The phra se is a re fer ence to the United States Supreme Court’s opinion in Daubert v. 4 Merre ll Dow Pharmaceuticals, Inc

. , 509 U.S. 579 (1993). 7the Court resolved the parties’ cross-motions for summar y judgme nt and grante d Plaintiff leave to amend her

complaint. See Estate of Gaither ex re l. Gaither v. District of Columbia , 655 F. Supp. 2d 69 (D.D.C. 2009). Ac cording ly , the Court invited the parties to inform the Court whether they believed a dditional briefingas to the admissibilit y of Roberts’ te stimony

would be desirable

. SeeOrde r, ECF N o. [222] . After the par ties weig hed in, the Court set a sc hedule f or the submission of updated memora nda. SeeMin. Order

(Mar . 31, 2011). The pa rties wer e direc ted to file consolidated me moranda and we re e x pressly

war ned that their “ submissi ons must raise any and all arguments they may have r eg ardingthe admissibilit y of Roberts’ te stimony

at trial” a nd that the Court would “not consider prior submissions.” Id. (empha sis added). Plaintiff filed her memorandum on Apr il 20, 2011. SeePl.’s Updated Mem. in Supp. of Expert Test. of Pl.’s Sentencing Ex pert (“ Pl.’s [ 235] Mem.”), ECF No. [235]. The District filed its memorandum on May

11, 2011. SeeDef

.’s Update d Mem. in Opp’n to Pl.’s Updated Me m. in Supp. of Pl.’s S entenc ing E x pert (“ Def .’s [246] Mem.”), E CF No. [246] . These me moranda superse de the pa

rties’ prior

submissi ons on this matter and, as a result, ar e the pr imary

focus of the Court’s attention in this Memorandum Opinion and Orde r. Plaintiff claims to have discove red a dditional materials supportingRoberts’ opinion since the Court held the Daubert hear ing. Spec ifically , Plaintiff has since located: (1) A Presente nce I

nvestig ation Report dra fted in Mar ch 2002 in conne ction with Gaither ’s cr iminal case be fore J udg e Kr amer ; and (2) Transc ripts of hea ring s befor e Judge K

rame r in Gaither ’s cr iminal case. Plaintiff filed her [236] Mot ion to Suppl ement, see king le ave to suppleme nt Roberts’ expert repor t to refe renc e these additional materia ls. SeePl.’s Mem. of P. & A. in Supp. of He r Mot. for

8L eave to Supplement Ex pert Repor t of Michele Robe rts, Esq., ECF No. [236-1]. The District filed an opposition to Plainti ff’ s Motion to S upplement. SeeDef .’s Mem. of P. & A. in Opp’n to Pl.’s Mot. t o Supplement Ex pert Repor t of Michele Robe rts, Esq., ECF No. [245]. P laintiff filed

a re ply

. SeeReply

in Supp. of Pl .’s Mot. for L eave to Supplement Ex pert Repor t of Michele Roberts, Esq., ECF No. [251]. I n her pr oposed supplemental wr itten report, Rober ts refe renc es the additional mater ials to support “additional mitigatingfac ts.” Suppl. Report of Michele A

. Roberts, Esq. (“Suppl. Roberts’ Rep.” ), ECF N o. [236-10] , at 3. Her underly ing opinion, and

acc ompanying me thodology , rema in fundamenta lly the same a s in her orig inal written re port. See id. at 1. II. LEGAL STANDARD Rule 702 of the F eder al Rules of Evidenc e g overns the a dmission of ex pert testimony : A witness who is qualified as an expert by knowledg e, skill, experience , training , or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific , technica l, or other specia liz ed knowledg e will help the trier of fac t to understand the evidenc e or to de termine a fac t in issue; (b) the testimony

is based on suff

icient fa cts or data ; (c) the testimony is the product of reliable principles and methods; and (d) the expert has re liably applied the principles and methods to the fac ts of the ca se. F E D . R. E V I D . 702. The trial judg e has “ considera ble leew ay

in decidingin a par

ticular c ase how 5 to go a bout determining whether particula r testimony

is reliable.” Kumho Tire Co., L td. v.

The Court re fer ence s the amende d Fe dera l Rules of Evidence that beca me ef fec tive on 5 Dec ember

1, 2011, which will apply at the trial in this case

.

9Carmichael , 526 U.S. 143, 152 (1999). “Exactly how reliability is evaluate d may

vary from ca se to case , but what re mains constant is the requir ement that the tria l judge evaluate the re liability of the testimony

befor e allowingits admissi on at trial.” United States v. Frazier , 387 F.3d 1244, 1262 (11th Cir. 2004) ( en banc ), cert. de nied , 544 U.S. 1063 (2005). In all case s, “[t] he trial judge . . . must find that [ the proff ere d testimony ] i s proper ly g rounded, w ell-re asoned a nd not speculative befor e it can be admitted.” F E D . R. E V I D . 702 advisory committee’s note ( 2000 amends.). III. PRELIMINARY MA TTE RS As a pre liminary

matter, the pa

rties disag ree as to the scope of the Court’s re view of the District’s [113] Motion to S trike, which c omes to this C ourt upon Plaintiff’s objections to Mag istrate Judge K ay ’s [120] Memorandum Or der grantingthe District’s motion in releva nt part and pre cluding Roberts from testifying a t trial as to the sentenc e Ga ither likely would have

rec eived ha d he survived. B eca use the motion was dec ided by Mag istrate Judge K ay

pursuant to

a re fer ence under L ocal Civil 72.2(a), this Court may modify or set aside any

portion of his decision “f

ound to be clea

rly err oneous or c ontrary

to law.” L C V R 72.2(c) ; accord 28 U.S.C. § 636(b)( 1)(A) ; F E D . R. C I V . P. 72(a) . I n the abstra ct, this means that the Court conduc ts a plenar y revie w of matter s of law, but is bound by Mag istrate Judge K ay ’s finding s of fa ct and discretionar

y deter minations unless they

are clea rly err oneous. Am. Ctr. for C ivil Justice v

. Ambush , __ F. Supp. 2d __, 2011 WL2600497, at *4 (D.D .C. J uly 1, 2011). Howe ver, be cause the admissibilit y

of expert testimony

fre quently

turns on leg al questions “intertwine d with fac tual issues that are in turn tinge d with aspec ts of discretion,” Cha rles A. Wrig ht et al., F E D E R A L P R A C T I C E A N D P R O C E D U R E § 3069 (2d ed. 1987) , the scope of the Court’s re view is “not

10monolithi c,” Milward v. Acuity Spec ialty Prods. Grp., Inc. , 639 F.3d 11, 13 ( 1st Cir. 2011)

(citation omitted); see also Norris v. Baxter He althcare Corp. , 397 F.3d 878, 883 ( 10th Cir. 2005). None theless, the guiding pr inciple—that the trial judg e may not substit ute her

judgme nt for the ma g istrate’s—r emains the same

. Howeve r intere sting the inter action betwe en these principles may be, they need not de tain the Court long he re f

or the simple re ason that the re sult is t he same reg ardle ss of the standar d of revie w applied. On the one hand, the Court finds that Mag istrate Judge K ay ’s deter mination that Roberts should be pre cluded f rom testifying a

bout the sentenc e that Ga ither likely would have

rec eived ha d he survived is not cle arly err oneous, contra

ry to law, or a

n abuse of

discretion. On the other ha

nd, even if

the Court wer e to subject the a dmissibi lity of Roberts’ te stimony

to plenar y revie w, it would simi larly conclude , in an exercise of its broad discre tion, that Roberts should be prec luded from testify ing a bout the sentenc e that Ga ither likely would have r ece ived had he lived to be sentenc ed in his criminal ca se. For purposes of e conomy

and cla rity , the Court’s discussion below shall be styled simply as if the Court conduc ted a plena ry revie w, the standa

rd of r eview that is more g ener ous to Plaintiff’s position. S uch an a pproac h is particular ly

useful in this case be cause , in the time since Mag istrate Judge K ay

rende red his opinion, the par ties have r efine d their positions and leg al arguments and the Court has the be nefit of having c onducted a Daubert hear ing. I

t is also helpful beca use some of the matters now be fore the Court wer e not bef ore Ma g istrate Judge K ay at all, including Plaintiff’ s [236] Motion to S upplement and the que stion of whether Roberts may provide g ener alized testimony about the fa ctors that a judg e mig ht take into acc ount in the course of sentenc ing a

criminal def

endant. See Liberty Lobby, Inc. v . Ree s , 852 F.2d 595, 599 ( D.C. Cir.

111988) (notingthat matters that we re not be fore the mag istrate judg e ar e not binding on the

district court), cert. de nied , 489 U.S. 1010 (1989). IV. DISCUSSIO N Plaintiff has indicated he r intention to call Roberts at trial to testify as to her “ opinion that, had he lived, Mr . Gaither would have be en sente nced to pr obation for his first fe lony conviction on a sing le count of distribution of coc aine.” Roberts’ Rep. at 1; see also Suppl. Roberts’ Rep. at 1 (same) . More pr ecise ly , in a re finement that did not cry stalliz e until after Mag istrate Judge K ay

rende red his dec ision, P laintiff intends to call Roberts to testify “about how a r easona

ble judg e (inc luding Judge Kramer) w ould have de cided Mr. G aither’ s sentence and that the likely

sentenc e would have been pr obation.” Pl.’s [ 235] Mem. at 1. The District 6 challeng es the a dmissibi lity of Roberts’ pr ofer

red te stimony

under Rule 702 of

Fe dera l Rules of Evidence , which re quires Roberts’ opinion to be ( 1) “he lp[ ful to] t he trier of fa ct,” ( 2) “ba sed on sufficie nt fac ts or data,” and (3) “the pr oduct of re liable principles a nd methods,” that ar e (4) “re liably applied . . . to the fa cts of the c ase.” F E D . R. E V I D . 702. For the re asons set for

th 7

Roberts’ orig inal three -pag e wr itten report, whic h was the f ocus of Ma g istrate Judge 6 Kay ’s attention, made no me ntion of the “re asonable judge ” and instea d ref ere nced only

J udg e Kramer. Rule 702 also require s the witness to be “qua lified as an e x pert by knowledg e, skill, 7 experience , training , or educ ation.” F E D . R. E V I D . 702. In this case, ther e is no dispute that Roberts has sig nificant e x perie nce a nd knowledg e about se ntencingprac tices, including sentenc ing pr actice s in the Superior Court of the District of Columbi a, whe re G aither’ s criminal case was pe nding at the time of his death. F rom 1980 to 1988, Roberts was a n attorney with the Public Defe nder Ser

vice, dur ing which she ha d a four -y ear tenure as the De puty

Chief of the Trial Division. SeeDec l. of Michele A . Roberts, Esq. (“Robe rts Dec l.”), ECF No. [235-9] , ¶ 3. Fr om 1988 to 2001, she repr esente d criminal def endants in private prac tice. SeeTr. of D auber t Hr’gat 32-33. Since 2001, she has ser ved as a member of

the Sentencing

Commi ssion for the District of Columbia and has c ontinued her pr ivate pra ctice. Id. at 19. 12below, the Court conc urs with Mag istrate Judge K ay that Roberts should be pre cluded f rom testifying a s to her opinion of the sente nce that Gaither likely would have r ece ived in his criminal

case , reg ardle ss of whethe r that testimony is frame d in terms of how a “re asonable judge ” or how J udg e Kr amer

would have se ntence d Gaither . Howeve r, the Court finds that Roberts may provide g ener alized testimony about the fa ctors that a judg e mig ht take into acc ount in the course of sentenc ing a

criminal def

endant. A. Plaintif

f Has Conceded that Robe rts Cannot Testify as to the SentenceJudge Kramer Likely W

ould Have I

mposed in Gaither’s Criminal Case The Court beg ins by

denoting what is no long er in dispute. Ac cordingto Plainti ff, Roberts will “testify

about how a reasonable judge. . . would have de cided Mr. G aither’ s sentenc e.” Pl.’s [235] Mem. at 1 (e mphasis added) . She disclaims that Roberts will “make a ny attempt to predict the likely sentenc e Judge Krame r

would have imposed.” Id. at 19 (e mphasis added) . Ba sed on this expl icit conce ssion, the Court shall preclude Robe rts from testifying a s to the sentenc e Judge K

rame r likely

would have imposed in Ga ither’s c riminal case

. B. Roberts Cannot Testi fy as to Her Opinion that Judge Kramer W as“Down the Middle” and “Not

an Outlier” in Her Sentencing Prac tices I n a stunning feat of leg al jujitsu, P laintiff at one moment discla ims that Roberts will “make any

attempt to predict the likely sentenc e Judge K

rame r would have imposed,” Pl.’s [235] Mem. at 19, and the n proce eds to repr esent that Rober ts will t estify

“about how a

rea sonable judge ( including Judge Kramer) would have decide d Mr. Gaither ’s sentenc e,” id. at 1 (e mphasis added) . Throug h this act of contor tion, Pl aintiff, quite tra

nspare ntly , seeks to bac kdoor an opinion about the sentenc e Judge K rame r likely

would have imposed in Ga ither’s c ase by

13char acte rizing Judge Kr amer as a “ rea sonable judg e.” B ut what Plaintiff seems to re cog nize she cannot g et throug h the front door cannot c ome in throug h the bac k. Conveniently

g lossed over by

Plaintiff is that she needs Rober ts to offer two dif

fer ent opinions to get to her

desired e nd-point. Specifica lly , Roberts must first opine about how a “re asonable judge ” would have sentenc ed Ga ither. Then, she must opine about how J udg e Kramer wa s situated vis-à-vis the so-c alled “r easona ble judg e.” I

n this reg ard, the connec tive tissue, as it were , is Roberts’ opinion that J udg e Kr amer was “ down the middle” a nd “not an outlier” in her

sentenc ing pr actice s. Plaintiff’s eff

orts fail at both stag es. At the fir st stage , Roberts ca nnot offer an opinion as to how a “r easona

ble judg e” w ould have se ntence d Gaither , a matter the Court addre sses below. See infra Part I V.C. Howeve r, eve n assuming that Roberts could offe r such a n opinion, the Court would nonetheless find that Rober ts cannot off

er a n opinion as to whether Judge Kramer was “ down the middle” a nd “not an outlier” in her sente ncingprac tices bec ause Plaintiff ha s failed to show that suc h an opinion would be “ba sed on suffic ient fac ts or data” and “the product of re liable principles a

nd methods.” F E D . R. E V I D . 702.

8 At the Daubert hear ing, Robe rts testified as follows: Q. * * * Do y ou have an opinion based on y our experience at the Public Def

ender Service , particularly seeing case s that y ou supervised that came befor e J udg e Kramer as to what she would have done ? A. What J udg e Kr amer would have done ?

The Court, of c ourse, e x presse s no opinion as to J udg e Kr amer ’s ac tual sentenc ing 8 prac tices; rathe r, the Court’s re view is confine d to the rec ord supportingRoberts’ prof fer ed testimony

. 14Q. Yes. A. I believe t h at s h e would have, as a rea sonable judge , and I think J udg e Kramer is a rea so n ab l e judge , she would have imposed a sentenc e of pr obation. Q. Do y ou have a basis for knowing , during y our time as

— p ar t i cular ly as a supervisor in seeing the larg er volume o f case s y ou descr ibed ear lier, whether J udg e Kr am er was regard ed as an outlier judge or as a sort of down the middle judge ? A. J udg e Kramer was considere d down the middle. She was not an outlier. Tr. of D auber

t Hr’gat 57. B ut when pre ssed to explain the basis for her opinion that J udg e Kramer is a “ rea sonable judg e,” “ down the middle,” or “not an outlier,” Roberts conc eded that she had not re viewed data spec ific to J udg e Kr amer ’s historical sente ncingpatterns, a s opposed to judge s of the Superior Court a s a whole. See id. at 62-63, 66-67. I nstead, Rober

ts testified 9 that she has “ some sense” of what J udg e Kr amer ’s sentenc ing pr actice s were in the rele vant time period be cause her te nure in the Public De fende rs Service “over lapped with the time that Judge Kramer wa s on the benc h.” Id. at 17. Despite this asser tion, by her own admission, Roberts’ opinion of J udg e Kr amer ’s sentenc ing pr actice s “did not come fr om [ her] own experienc e,” id. at 108-09, and she conce des that she ha s “no memory one wa y or the other ” of whether

she eve r

Plaintiff aver s that “there is no judge -spec ific sentenc ing data ava ilable,” Pl.’s [235] 9 Mem. at 20 (c iting Af

f. of Kim. S. Hunt (“H unt Decl.” ), ECF N o. [235-12] , ¶ 11), but the evidenc e re lied upon by

Plaintiff, an af

fidavit from the Executive Dir ector of the Sentenc ing Commi ssion for the District of Columbia, does not support such a broad a ssertion. Rather, the Ex ecutive D irec tor mere ly aff irms, to the best of her

knowledg e, that ther e is no pre- exis ting judge -spec ific bre akdown of a par ticular statistical ana ly sis used by the SentencingCommi ssion to evaluate the historical sente ncingpatterns f or judg es ac ross the Superior Court. SeeHunt Dec l. ¶ 11. Acc ording ly , it is undi sputed that Roberts’ opinion about how Judge K rame r wa s situated vis-à-vis the so- called “ rea sonable judg e” is not base d on sentenc ing da ta spec ific to J udg e Kr amer . 15had a c ase a nalog ous to Gaither’ s befor e Judge K rame r, id. at 70. Wit h this li mited showing, Plaintiff ha s failed to satisfy the Court that Roberts’ opinion about how Judge K

rame r wa s situated vis-à-vis the so-c alled “r easona ble judg e” is “ based on sufficie nt fac ts or data” and “the product of r eliable pr inciples and methods.” F E D . R. E V I D . 702. The re cord is devoid of

any meaningful measure of de tail about the extent of Roberts’ e x perie nce with and knowledg e of Judge Kramer’s se ntencingprac tices spec ifically . This Court is not require d to “admit opinion evidence that is connec ted to exis ting data only by the ipse dixit

of the expert.” Gen. Ele c. Co. v. J oiner , 522 U.S. 136, 146 (1997). In this case, a part fr om knowing that Roberts has someknowledg e of Judge Kramer’s se ntencinghabits by virtue of he r experience (knowledg e that is larg ely secondha nd), the Court is left only with Roberts’ unvarnished opinion that Judge K rame r is a “r easona

ble judg e,” “ down the middle,” or “not an outlier.” Cf. Frazier , 387 F.3d at 1253 (upholding tria l judge ’s dec ision to ex clude e x pert testimony wher e expert identified a single specific investigation involvi ng the subject matter of his opinion; the expert “made no eff ort to quantify

in any way the number of

case s he wa s persona lly

involved in” that implicated the same subject matter ). To put it simpl y , there is too g reat an ana ly

tical g ap betwe en the f

actua l basis and the prof

fer ed opinion to satisfy

the Court that Roberts’ opinion is “based on suf ficient fa cts or data ” and “ the produc t of reliable principles and methods.” F E D . R. E V I D . 702. Acc ording ly , the Court shall prec lude Roberts fr om 1 0

Nor ha s Plainti ff e stablished that Roberts’ opinion could be “ reliably applied . . . to the 1 0 fac ts of the ca se,” F E D . R. E V I D . 702, g iven Roberts’ inability to identify

with any meaning ful level of de tail the extent of her experienc e with and knowle dg e of Judge Kramer’s pr actice s in sentenc ing c riminal defe ndants similarly situated to Gaither. Whether J udg e Kr amer

was “ down the middle” or “ not at outlier” whe n sentenc ing de fenda nts charg ed with diffe rent c riminal offe nses, for e x ample, is immaterial to her proff ere d opinion in thi s action. 16testifying a s to her opinion that J udg e Kr amer was a “re asonable judge ,” “down the middle,” and “not an outlier” in her sente ncingprac tices. C. Roberts Cannot Testi fy as to the Sentenc e a “Reasonable J udge” Likely W

ould HaveImposed in Gaither’ s Criminal

Case The Court now turns to the he art of Robe rts’ prof fer ed testimony . Acc ordingto Plainti ff, Roberts will “testify

about how a r easona

ble judg e . . . would have decide d Mr. Gaither ’s sentenc e.” Pl.’s [235] Mem. at 1. In an exerc ise of its broad discr etion in these matters, the Court finds that Roberts’ opinion as to how a “ rea sonable judg e” w ould have se ntence d Gaither should be excluded under both Rule 702 a nd Rule 403 of the F eder al Rules of Evidenc e. The Court addre sses ea ch g round for exclusion i n turn. 1. Rule 702 To reiter ate, Rule 702 re quires Roberts’ opinion to be, inter alia , (1) “ based on suf ficient fac ts or data,” and (2) “the pr oduct of re liable principles a nd methods,” that ar e (3) “re liably applied . . . to the fa cts of the c ase.” F E D . R. E V I D . 702.

i. “Sufficie nt Fac ts or Data” I n this case, the Court sha ll first assume, without deciding , that Roberts’ substantial experience and knowledg e of se ntencingprac tices in the Superior Court, the same fa ctors that qualify her a s an expert to beg in with, coupled with her r eview of historical sentenc ing da

ta compiled by

others, constitute “suf

ficient fa cts or data ” to support some for m of a pre dictive judgme nt about how a judg e mig ht sentence a cr iminal defenda nt in a particula

r ca se. SeeTr. of Daube rt Hr’ gat 19 (identify ing the bases f

or Roberts’ pr offe red opinion); Roberts’ Re p. at 1

17(same)

. At the ver y least, the re cord is consistent with such a n assumption. As an experience d 1 1 prac titioner, Roberts was c onsistently called upon to make a pre dictive judg ment about the sentenc e a c lient might re ceive , and she te stified that this task was important to her da y -to-day work ove r the y ear s:

Q.

. . . [W ]hat role did the evaluation of o r as s es sment of the client’s exposure play in y our ever y day life as a line defe nder handling distribution, PW I D, possession wit h intent to distribute case s? A. I t was fairly critica l

. . . . Most of the ca ses, I venture to say as many as 75 perc ent to 80 perc ent of the case s resulted in a dispositi on, meaning

a plea as opposed to g oing to tr ial. So, evaluating the case for purposes of deter mining what t he likely sentenc e was for something, y ou woul d do routinely and consistentl y . Also, those case s wer e the kind of case s wher e y ou wer e m o s t likely to rec eive a plea offe r from the Gover nment very ear ly on in the life of the case . * * * I n drug case s, fre quently y ou’d rec eive a plea o ff er at the very same time that the case would come into the sy stem. So that was something — assessing the case for potential sentenc ing was somethingwe did routinely

. Q. And do y ou have an o pinion about whether that assessment was something that clients cam e to ask for an eventua lly

— and also to re ly

on? A. Absolutely

. Q.

. . . [T] ell the Court what impact, knowi n g t h at t he clients would put such relianc e on y our evaluation of the merits of the case and the likely sentenc e if the case wer e to r esult in a plea, wh at impact that had on the rig or with which y ou approa ched the assessment of the case . A. Well, the client wanted to know, fra n kly , whether it was worth the risk of trial. And my ability to communicate to the client what I believed the sentenc e wo uld be and why I

The a dditional materials identified in Roberts’ pr offe red suppleme ntal repor t would 1 1 not alter the Court’s a

naly sis. 18believe[d] t h e sentenc e would be what I was predic ting was critica l in their deter

mination of whether to waive their rig hts to a trial by

jury or not. To be right wa s not only useful, but important. And so, y es, I mean, t h e q u est ion, “[W ]hat am I fac ing[? ]” was fa irly

routine in my

prac tice. Tr. of D auber

t Hr’gat 12-13. To qua

ntify this ex perie nce, Robe rts claims that she has ha d some level of involveme nt in somewhere betwee n 1,500 to 2,400 criminal drugcase s in the period from 1988 to 2001, either as a tria l attorney

or as a supervisor of

other trial attorney s. See id. at 96-100; Roberts Dec l. ¶ 3. In the time period a fter G aither w ould have be en sente nced, Robe rts g arne red a dditional ex perie nce a s a member of the Sentenc ing Commission for the District of Columbi a, which r equire d her involveme nt in discussions about sentencingphilosophies and trends, as w ell as in her pr ivate pra ctice. SeeTr. of D auber t Hr’gat 19, 102. On this rec ord, the Court shall assume that Roberts’ opinion is “base d on sufficie nt fac ts or data.” F E D . R. E V I D . 702. 1 2 ii. “Reliable Principles a nd Methods” Even with the for eg oing a ssumption, P laintiff still m ust show that Roberts’ opinion is “the pr oduct of re liable principles a nd methods.” F E D . R. E V I D . 702. In this reg ard, Plaintiff fairly summarizes Roberts’ relied- upon “methodolog y” for making a pre dictive sentenc ing judgme nt as follows:

The a ssumption i s not an unassailable one. Roberts’ e x perie nce w ith sentencing 1 2 g ener ally , or sentenc ing in c riminal drugcase s, does not ineluctably lead to the c onclusion that she has suff

icient experienc e in ea ch of the sentenc ing c onsiderations re levant to Gaither ’s ca se. For instance, Rober

ts testified that she believe s that criminal def endants who c ooperate with authorities without

the bene fit of a f

ormal coope ration agree ment, like Gaither , are treated more favor ably by sentenc ing judg es than c riminal defe ndants who coope rate with the bene fit of a formal c ooperation ag ree ment. SeeTr. of D auber t Hr’gat 54-55. How ever , Roberts conc edes that her pe rsonal experienc e wa s limi ted to “a c ouple” of instances in which a

criminal def

endant participated without the benef it of a for mal cooper ation ag ree ment. Id. at 54. 19I n assessing the likely sentenc e, . . . [R oberts] considers: the nature of the offe nse, whether the offe nder pleads g uilty or is convicted at trial, social and family history , employ ment history , ties to the community , and cer tain positive and neg ative fa ctors that are demonstrated to either lowe r or r aise the se ntence

. Pl.’s [ 235] Mem. at 10 (citing Tr . of Da ubert Hr ’gat 36-37, 50-52)

. Plaintiff contends that 1 3 Roberts’ “me thodology

— compar ing the rele vant sentenc ing f actor s in a particula

r ca se to thousands of prior se ntence s involving similar fac tors — is sound” beca use “[m] akingsuch assessments in advising clients and, late r[,] lawy ers she supervised, w as her stock-in-tra de as a highly reg arde d Assistant Publ ic Def ender , in which ca

pacity she g ener ated a

considera

ble volume of sentenc e compa rators.” Id. at 1-2. I n tender ing this ar g ument, Plaintiff effe ctively conflates two separ ate que stions under Rule 702—whether

the proff ere d opinion is “based on suff icient fa cts or data ” and whether it is “the pr oduct of re liable principles a nd methods.” F E D . R. E V I D . 702. The Court does not doubt that there will be some interplay betwee n these que stions where, a s here , an expert re lies primarily on her e x perie nce a

nd knowledg e as a

basis for he r opinion. “[N] o one denie s that an expert might dra

w a c onclusion from a se t of observa tions based on extensive and spec ialized experience ,” Kumho Tire , 526 U.S. at 156, and in some ca ses, “the r eleva nt reliability

conce rns

Elsewher e, Plaintiff desc ribes the “ principles” unde rlying Robe rts’ methodolog y in the 1 3 following manner :

The major premises underly ing her opinion are that simil arly-situated individuals g ener ally rec eive simil ar s en tence s; that sentenc ing is g raduated and pr oportional; and that cer tain positive or sy

mpathetic fac tors will tend to produce a lower sentenc e while cer tain neg ative or unsy mpathetic fa ctors will tend to do the opposite. Pl.’s [ 235] Mem. at 15.

20may

focus on pe rsonal knowledg e or e x perie nce,” id. at 150. B ut that “does not mea n that experience , standing alone, is a suf ficient foundation render ing r eliable a ny conce ivable opinion the expert may

express.” Frazier , 387 F.3d at 1261. Even whe n an expert re lies upon her experience , “the r eliability criter ion remains a disc rete , independe nt, and important requir ement for a dmissibi lity .” Id. Thus, wher e, as he re, the expert relies “ primarily on experience , then the witness must ex plain how that experienc e lea ds to the conclusion re ache d, why that experience is a suff icient basis for the opinion, and how that experienc e is reliably applied to the fa cts.” F E D . R. E V I D . 702 advisory

committee’s note ( 2000 amends.); accord M etavante Corp. v. E

migrant Sav. Bank, 619 F.3d 748, 761 ( 7th Cir. 2010), cert. de nied , __ U.S. __, 131 S. C t. 1784 (2011). Be cause the standar ds for the a dmission of ex pert testimony are flexibl e by

desig n, the trial judg e’s discr etion extends not onl y to her substantive judg ment, but also to her thre shold deter mination as to how reliability should be eva luated. Kumho Tire , 526 U.S. at 152. In this reg ard, the Court is in complete ag ree ment with Plainti ff that the la w does not support the rig id application of the fac tors articulated by the United States Supreme Court in Daubert v. M errell Dow Pharmace uticals, Inc. , 509 U.S. 579 (1993). The Court also agree s with Pl aintiff that 1 4 Roberts’ testimony

is not per se inadmissible sim ply beca use, as Plaintiff conc edes, it is “unsupported by

peer revie w” a

nd “lac k[s] statistical analy sis or studies,” Pl.’s [ 235] Mem. at 13, fac tors that are commonly associate d with scientific or te chnica l expert testimony . The Court also ac cepts that the sor

t of testimony

at issue in this case doe s not easily lend itself to scholarly

Those fa ctors include: ( 1) whe ther the me thod can be and has be en tested; (2) whether 1 4 the method has be en subjec ted to peer revie w and publication; (3) whether there is a hig h potential rate of er

ror; (4) whether

there are standards c ontrolling the me thod’s operation; and (5) whether the method enjoy s g ener al ac cepta nce w ithin the releva

nt community

. See Daubert , 509 U.S. at 592-94. 21revie w or tra ditional scientific eva luation. Nonetheless, the Court de parts with Plaintiff to the

extent she intends to sugg est that the fa ctors identified in Daubert are irrele vant in this case. Daubert should not be “slavishly

applied” in this context. Id. at 17. B ut neither should it be disreg arde d. Contrary to what Plaintiff may

believe, “ some of Daubert’s questions can he lp to evaluate the re liability

even of experience -base d testimony .” Kumho Tire , 526 U.S. at 151. In particula r, the Supreme Court ha s acknow ledg ed that, in some ca ses, it will be appropriate to ask how ofte n an expert’s e x perie nce “ has produc ed er roneous r esults.” Id. This happens to be one of those 1 5

case s. I n this case, e ven while a cknowledg ing that Gaither’ s conviction ca rried a possible sentenc e ra

ng ing f rom probation to thirty

y ear s’ incar cer ation, Roberts’ opinion is that, “had he lived, Mr. Gaither

would have be en sente nced to pr obation.” Roberts’ Re p. at 1. This is a predictivejudgme nt, and a r ather prec ise one at that. Given the nature of the proff ere d opinion, the Court would ex pect Plaintiff to offe r some indication of the “ rate of er ror” of Roberts’ pr edictive methodolog y . Daubert , 509 U.S. at 594. To put it in t he most simple terms, while the Court has no doubt that Roberts was c onsistently called upon to make predic tive judgme nts about the sentenc e clients mig ht rec eive in the c ourse

Citi ng a solitary

footnote fr om the opinion of the United States Courts of Appea ls for 1 5 the Ninth Circuit in Living Designs, Inc. v . E.I. Dupont de Ne mours and Company , 431 F.3d 353 (9th Cir. 2005), Plaintiff claims that “c onsiderations such a s peer revie w and e rror

rate are simply inapplicable to e x perie nce- based te stimony .” Pl.’s [235] Mem. at 13 n.11. To the e x tent Living Designs and its prec ursors in the Ninth Circuit stand for suc h a broa d proposition, it i s plainly contra ry to the instructions of the United States Supreme Court. Those instructions are c lear : “[t] oo much depe nds upon the particula r circ umstances of

the par ticular c ase at issue” to rule out cer tain fac tors identified in Daubert for “ subsets of ca ses categ orized by cate g ory of expert or by kind of evidenc e.” Kumho Tire , 526 U.S. at 150. “[S] ome of Daubert’s questions can he lp to evaluate the re liability

even of experience -base d testimony ,” includingthe question of how of ten an “e x pert’s e x perie nce- based me thodology has produc ed er

roneous r esults.” Id. at 151. 22of her

extensive and impressive ca ree r, there is no evidence in the rec ord indicatinghow good she wa s at making such judg ments. Roughly speaking , how often did Rober ts’ predic tions turn out to be corr ect? When incorre ct, how ofte n wer e they “in the ballpar

k” and how

often did they deviate sig nificantly

from the se ntence actua lly imposed? These que stions, which are left

unanswe red in the r ecor d befor e the Court, ar e the sort of questions one would expect to be addre ssed wher e a pa

rty intends to call a witness to make a pre dictive judg ment like the one at issue here , even when that judg ment is primarily based on the expert’s experience and not a more rig orous scientific or

technica l inquiry

. By

this, the Court does not intend to sugg est that 1 6 Plaintiff was somehow oblig ated to esta blish the reliability

of Roberts’ me thodology to a scientific or

statistical cer

tainty ; even g ener alized evidence about how ofte n Roberts’ methodology

produce s err oneous re sults mi g ht very well have suffice d in this case. Howe ver, the re cord c reated by

the par ties in this case is devoid of a ny such evide nce. A t best, the rec ord sug g ests that Roberts’ powe rs of pre diction improved as her car eer prog resse d. SeeTr. of Daube rt Hr’ gat 36-37, 55. This evide nce doe s not provide the Court with any metric, e ven a

Simo v. Mitsubishi Motors Nort h America, I ncorporated , 245 F. App’ x 295 (4th Cir. 1 6 2007), an unpublished a

nd non-pre cede ntial opinion in which the United States Court of Appea ls for the F ourth Circuit upheld the trial cour t’s discretionar

y admission of expert testimony conce rning the ea

rning s a socc er pla

y er likely would have e arne d as his car eer prog resse d, is not to the contra

ry . Unlike Roberts, the e x pert in Simo eng ag ed in a spe cific c ompara tive analy sis, “not[ing] as a point of compar ison the salarie s of eight then-cur rent or f ormer pla y ers.” Id. at 300. Moreove r, unlike Roberts, the e x pert in Simo did not predict a pr ecise outcome, but rather a wide ra ng e of outc omes. His estimate cove red a broad r ang e fr om $3 mill ion to $10 mil lion, and he explained that his projection enc ompassed “‘ a ra ng e of a vera g es,’ r ather

than a pr ecise predic tion.” Id. at 301. Plaintiff also relies he avily on the United States Court of Appe als for the District of Columbia Circuit’s opinion in United States v. Me jia , 448 F.3d 436 ( D.C. Cir. 2006), cert. de nied , 549 U.S. 1137 (2007). The Court fails to see the c omparison. In Mejia , the Court of Appe als upheld the trial judg e’s a dmission of ex pert testimony from a la w enf orce ment ag ent as to the use of

“code phrase s” employ ed by drugtraff

icker s. Id. at 448. The c ase did not involve any

thing r emotely

akin to the sort of pre dictive judg ment offe red by Roberts in this case. 23roug h and non-sc ientific metric, to pr obe the r eliability of Roberts’ pr edictive methodolog y . I n the end, Rober

ts’ “bald a ssuranc e of va lidity is not enoug h” for

this Court. Daubert v. M errell Dow Pharm., Inc. , 43 F.3d 1311, 1316 ( 9th Cir.), cert. de nied, 516 U.S. 869 (1995). On this 1 7

rec ord, Plaintiff has fa iled to satisfy the Court that Roberts’ opinion that a re asonable judge would likely

have se ntence d Gaither

to probation is “the produc t of reliable principles and methods.” F E D . R. E V I D . 702.

iii. “Reliably

Applied” Nor is the Court satisfied that Rober ts’ methodology

has bee n “re liably

applied . . . to the fac ts of the ca se,” F E D . R. E V I D . 702, to yield her opinion that a “ rea sonable judg e” likely would have se ntence d Gaither

to probation. As an initial matter, the Court ha rbors no small amount of doubt that such a methodolog y could eve r re liably

produce such a pr ecise predic tion. Roberts’ predic tive methodology

is meant to duplicate the “ methodology” used by sentenc ing judg es. B ut that methodology , to the extent it may even be char acte rized as such, is fa ct-intensive, multifac eted, ope n-ende d, and discre tionary . Indeed, the courts of the District of Columbia rec og nize that two jurists, even whe n prese nted with the same se t of fac ts, may rea ch diffe rent outcome s when “ the discre tionary , virtually non-re viewable act[,] of sentencingtakes plac e.” Belton v.

Fur ther, whe ther a

“method is g ener ally

acc epted” in the community may be re levant 1 7 in evaluatingexperience -base d testimony

. Kumho Tire , 526 U.S. at 151. Despite Plaintiff’s asser tions to t he contr ary , there is no basis in the recor d to conclude that Roberts’ pre dictive methodology

has g ained “ g ener al ac cepta nce” in the community

. Daubert , 509 U.S. at 594. Whil e Plaintiff may

be cor rec t that sentencing

judge s use a similar “me thodology ,” they do not use it for the same purpose—that is, to m ake a predictivejudgme nt about what sente nce w ill be imposed in a g iven ca se. To put in plainly , a sente ncingjudge decide s what sente nce is war rante d in a par

ticular c ase; he r task is presc riptive and not pre dictive. Unlike Roberts, the sentenc ing judg e is not asked to make a guess about what another judg e, veste d with simi larly broad discr etion, might do if pre sented with an a nalog ous case . 24United States , 581 A.2d 1205, 1212 (D.C. 1991). What is an appr opriate se ntence in a par ticular

case ? In the District of Columbia, as elsewhere , “re asonable men may and do diffe r on the subject.” Foster v. United States , 290 A.2d 176, 179 (D.C. 1972). To put it another wa y , 1 8

rea sonable minds could apply the same “ methodology” as Rober ts and end up with two diffe rent and equa lly

valid outcomes. See also Tr. of D auber t Hr’g at 75-76, 84 (c oncedingthat judge s could exercise the ir discre tion differe ntly). More to the point, Roberts’ testimony at the Daubert

hear ing a bout how she applied he r methodology

to Gaither’ s case was re plete with g ener alities. She repe atedly opined that ce rtain fac ts pertinent to Gaither ’s cr iminal case w ould be “c ritical,” “ signific ant,” or a “hug e plus” in sentenc ing, while others would mer it “some consider ation” or w ould not be “dea lbrea kers.” Fr amed in such g ener alized and non-spec ific terms, the Court ha s no basis to meaning fully assess whether Roberts has re liably

applied her

methodology

to predict that a

“re asonable judge ” would have se ntence d Gaither

to probation. In the final a naly sis, it i s not really

clea r wha t weight Roberts herse lf applied to ea ch fa ctor, let a lone why a “r easona

ble judg e” w ould do the same. Plaintiff’s relianc e on a se ries of c ases, none of them binding on this Court, addressing the proprie ty

of expert testimony

on the “r easona

ble judg e” in leg al malpra ctice a ctions, is misplaced. SeePl.’s [ 235] Mem. at 20. As the District observe s, in leg al malpra ctice a ctions, the jurors’ job is to put themselves in the place of the trier of fa ct in the prior leg al ac tion and to deter mine “what the result should have be en ”—that is, to hold a “trial within a tria l.” In re DeAtley Liti g. , No. CV-06-0278- J L Q, 2008 WL375086, at *6 (E.D. Wash. F eb. 11, 2008). The

That obser

vation is especia lly

true whe re, a s here , there was no mandatory minimum 1 8 sentenc e. See D antzler v. United States , 696 A.2d 1349, 1359 (D.C. 1997) ( “Where no mandatory

minimum applies, sentenc ing de cisions are quintessentially discretionar

y .”). 25g oal is not to predict what a particula r trier of fa ct would have done as a matter of historica l fac t or hy pothesis. That fiction, which a llows the jury to substit ute its judgment for another trier of fac t, does not apply

in this contex t. Here , “the que stion is not what Mr. Ga ither should have

ear ned, but rather what he would have ear ned, a de termination that depe nds in part on what sentenc e he w ould have r ece ived, not what sente nce the jury believes he should have re ceive d.” Def .’s [246] Mem. at 18. Plaintiff also relies upon a series of case s in which a judg e expressed some le vel of willingness to hea

r expert sentenc ing te stimony befor e sente ncinga criminal defenda nt or making a dete rmination conce rning rele ase on ba il. SeePl.’s [ 235] Mem. at 16-17. These c ases, none of which ar e binding on this Court, are inapposite for my riad re asons, but only

one nee d be mentioned her e: the F eder al Rules of Evidenc e, and by extension t he entire inquiry at issue her e, do not apply

in such proce eding s. SeeF E D . R. E V I D . 1101(d)( 3). In the end, the a uthorities cited by Plaintiff simpl y

are not apposite. The Court’s c onclusion remains the same eve n afte r takinginto account the historica l sentenc ing data that Roberts re viewed in r endering he r opinion. SeePl.’s [ 235] Mem. at 1 (cla iming that “the historical sentenc ing data . . . shows that Ms. Roberts’ applied he r method reliably beca use this data strong ly

supports a conc lusion that probation (or a similarly short sentenc e) w as likely .”). Strictly speaking , this evidence does not direc tly verify the re liability

of Roberts’ pre dictive methodolog y , which is based on he r application of a multi-fac tored, discretionar

y balanc ing te st to the facts of a particula r ca se. Rather , as Roberts and Plaintiff sug g est, the evide nce a

t best “cor

roborates” or “ boosts” her bottom-line opinion that Gaither likely would have be en sente nced to pr obation had he sur vived. Id. at 11; see also Tr. of D auber t

26Hr’gat 21 (statingthat the historical data “conf irmed the opinion that [R oberts] init ially arr ived at”) . The historica l data indicate s that, betwee n J anuar y 1, 1996 and June 30, 2003, 52% of individuals charg ed with the same offe nse as Ga ither and f alling in the sa

me cr iminal hist ory cate g ory rec eived pr obation. SeeApp’x: Hist orica l Data f or DrugGrid (“ Historical Data App’x”), ECF No. [235-11], at 1. Meanwhile, 48% of those individuals were sentenc ed to some period of inc arc eration. Id. But Plaintiff does not cla im that Roberts (or, for that matter, 1 9 anyone else ) eve r looked be hind the data to dete rmine the c ompositi on of these groups—that is, to determine howthe fa ctual cir cumstance s of the criminal defenda nts behind the raw

data coincide w ith the actual se ntence s imposed. Wi thout that connection, ther e is an una cce ptable analy tical disconnec t betwee n Roberts’ opinion, her pr edictive methodolog y , and the historica l data. Stated diff

ere ntly , there is nothing in the data , or Roberts’ a naly sis of the data, that reve als that she re liably

conclude d that Gaither

would have f

allen into the 52% of the g roup that re ceive d probation instead of

the 48% who did not. For this reason, a

nd for the r easons se t forth above , the Court is not satisfied that Roberts’ methodology

has bee n “re liably

applied . . . to the fa cts of the c ase,” F E D . R. E V I D . 702, to y ield her opinion that a “ rea sonable judg e” likely would have se ntence d Gaither to probation in his criminal ca se.

Br oken down in a dif

fer ent manner , 52% of the group re ceive d probation, 60.8% 1 9 rec eived a

sentenc e of le ss than six months, 70.6% rec eived a sentenc e of le ss than ten months, 80.4% re ceive d a sente nce of less than fiftee n months, and 90.2% re ceive d a sente nce of less than twenty -four

months. SeeHistorical Data App’x at 2. 272. Rule 403

As observe d by

the Supreme Court, a

n expert’s opinion “ca

n be both power ful and quite misleading beca

use of the dif

ficulty in evaluatingit.” Daubert , 509 U.S. at 595. Acc ording ly , “sometimes expert opinions that otherwise mee t the admissibili ty require ments [of Rul e 702] may still be excluded by

applying Rule 403.” Frazier , 387 F.3d at 1263. I ndeed, “ Rule 403 exclusion based on unfair pr ejudice is pa rticularly important in the case of expert evidenc e.” U.S. ex rel. Miller v. Bill Harbert Int’l Constr., Inc. , 608 F.3d 871, 895 ( D.C. Cir. 2010), cert. denied , __ U.S. __, 131 S. C t. 2443 (2011). In this case, e ven assuming , arguendo , that Roberts’ proff ere d testimony

would meet the r equire ments of Rule 702, the Court would exercise its discretion and c onclude that whatever probative va lue such testimony would have w ould be “substantially

outweig hed” by

“a da ng er of unfair pr ejudice . . . [and] misl eadingthe jury .” F E D . R. E V I D . 403. At the ver

y best, the methodolog ical founda tion for Roberts’ pr offe red opinion that Gaither

would be sente nced to pr obation is “slender ,” and the dang er that the jury would assig n such testimony

talismanic signif

icanc e is too g reat. Frazier , 387 F.3d at 1263. I n sum, the Court finds that Pl aintiff has f ailed to show that Roberts’ opinion that a “re asonable judge ” would have sentenc ed Ga ither to probation is “the pr oduct of re liable principles and me thods” that are “re liably applied . . . to the fa cts of the c ase.” F E D . R. E V I D . 702. Alternatively , the Court finds that whateve r probative value suc h testimony would have would be “substantially

outweig hed” by

“a da ng er of unfair pr ejudice . . . [and] misl eadingthe jury .” F E D . R. E V I D . 403. Acc ording ly , the Court shall prec lude Roberts fr om testifying a s to

28how a “ rea sonable judg e” w ould have se ntence d Gaither

. 2 0

D. Roberts Can Provide Ge neralized Testimony About the Fac tors that a Judge Might Take into Account W hen Sente ncing a Criminal Defendant Despite the f

oreg oing, the Court ag ree s that the jury will need some guidance in deter mining what sentence Gaither likely would have r ece ived in order to calculate Plaintiff’s claimed c ompensatory

damag es, should they

ever need to r eac h that question. L ay persons a re unlikely to know the fa ctors that judg es ar e likely to consider in sente ncingand, abse nt such testimony , the jury

in this case would have littl e at its disposal to evaluate what sente nce w ithin the wide r ang e of possible sente nces G aither mig ht have r ece ived. The Court de clines to ca st the jury adrift in a se a of spe culation. I n this reg ard, the Court finds that Roberts can te stify , in ge nera l terms, as to the fa ctors that a judg e mig ht take into acc ount in the course of sentenc ing a

criminal def

endant ( e.g. , the nature of the off

ense, pr ior criminal history , whether the offe nder ple ads guilty or is convicted at trial, social and f

amily history , employ

ment history , ties to the community , etc.)

. SeeF E D . R. E V I D . 702 advisory

committee’s note ( 2000 amends.) ( rec og nizi ng that it might “be importa nt in

some ca ses for a

n expert to educate the fa ctfinder about g ener al principles, without eve r

The proble ms with Roberts’ testimony would not be re medied if Rober ts were to 2 0 hy pothetically

soften her

opinion that Gaither would have re ceive d probation to an opinion that “a se ntence from probation to two y ear s for Mr. G aither w as hig hly probable ,” which Plaintiff asser ted as a fallbac k position far too late in these pr ocee dings. Pl.’s [235] Mem. at 25. While such an opinion mig ht be more c onsistent with the hist orica l sentencingdata, ther e would still be insufficient support in the re cord to satisfy the Court that Roberts’ opinion would be “the product of re liable principles a

nd methods” that ar e “r eliably applied . . . to the fa cts of the c ase.” F E D . R. E V I D . 702. 29attempting to a pply these princ iples to the specific fac ts of the ca se.”)

. In addition, Roberts may 2 1 respond to appr opriate hy pothetical questions desig ned to elicit an opinion as to whe ther c erta in fac tors would be a positive or ne g ative conside ration in sentenc ing. See Estate of Carey by Carey v. H

y-Tem p Mfg., Inc. , 929 F.2d 1229, 1235 n.2 ( 7th Cir. 1991) (“[E]x pert witnesse s may be compe tent to give opinions based on hy pothetical fa cts eve n though a foundation that the expert has per sonal knowledg e of those f acts ha s not been laid.” ) (c itation omit ted). F or example, Plainti ff’ s counsel may ask Roberts whe ther a

criminal def

endant’ s voluntary cooper ation in a g rand jury investigation is l ikely

to be viewe d as a positive fa ctor in dete rmining the def endant’ s ultim ate se ntence . Howeve r, the use of such hy pothetical questions shall be conditioned upon Plaintiff’s ability to lay a prope r foundation connecting the hy pothetical

scena rios to the actua l fac ts of this case through other e vidence or witnesses. Meanwhile, the Court emphasizes that Roberts’ testimony cannot stra

y into the following

are as: (1) he r opinion of the sente nce that J udg e Kr amer or a “ rea sonable judg e” w ould have imposed in Gaither’ s criminal ca se; (2) he r opinion of how Judge K rame r wa s situated vis-à-vis the “r easona

ble judg e”; ( 3) her

opinion of how a judg e would allocate the we ight be tween c erta in fac tors ( e.g. , an opinion that a judg e would conside r a c riminal defe ndant’s succ essful participation in a drug reha bilitation progra

m as more sig nificant than subse quently testing positive for druguse in violation of the def endant’ s terms of re lease ); and (4) her inter pretation of Judge Kr amer ’s, counse l’s, or the proba tion officer ’s conduc t or statements in Gaither ’s

“F or this kind of g ener alized testimony , Rule 702 simply require s that: (1) the e x pert 2 1 be qualifie d; (2) the testimony addre ss a subject matter

on which the f

actf inder c an be a ssisted by an expert; (3) the testimony is reliable; and ( 4) the testimony ‘fit’ the f acts of the case .” F E D . R. E V I D . 702 advisory

committee’s note ( 2000 amends.). 30criminal ca se ( e.g. , the re asons why J udg e Kr amer

may have attended Ga ither’s g raduation from a drugreha

bilitation progra

m). Wit h those provisos, in an exercise of its broad discre tion, the Court shall permit Roberts to testify , in ge nera l terms, as to the fa ctors that a judg e mig ht take into acc ount in the course of sentenc ing a

criminal def

endant a nd to respond to appr opriate hy pothetical questions desig ned to elicit an opinion as to whethe r ce rtain fa ctors would be a positive or neg ative conside ration in sentenc ing, le avingto the jury the task of de termining which fa ctors best fit the f acts of this ca se. See Miller , 608 F.3d a

t 895 (upholding the trial judg e’s a llowance of expert testimony descr ibing g ener ic ec onomic principles, lea ving the trier of

fac t to determine whic h scena rio best fit the fa cts of the c ase)

. E. Plaintif

f’s Motion to Supplement Shall Be De nied I n her [236] Mot ion to Suppl ement, Plaintiff see ks leave to supplement Roberts’ written repor t to make re fer ence to additional materials supportingRoberts’ prof fer ed opinion that a

rea sonable judg e likely

would have se ntence d Gaither to probation—materia ls that Pl aintiff claims to have discove red since the Court held the Daubert hear ing, inc luding a

Presentenc e I nvestig ation Report and tra nscripts of hea

ring s befor e Judge K

rame r. I n her pr oposed supplemental written r eport, Rober ts refe renc es the a dditional materials as supporting“additional mitigatingfac ts.” Suppl. Roberts’ Rep. at 3. Her underly ing opinion, and a ccompa nying methodology , rema in fundamenta lly the same a s in her orig inal written re port. See id. at 1. The Court has ca

ref ully considere d these a dditional materials, and the c orre sponding c hang es made in Roberts’ prof

fer ed supplementa l report, a nd finds that they

would not alter the Court’s de cision even if supplementation wer e per mitted. Most not ably , like the historical sente ncingdata

31Roberts relied upon pr eviously , these a dditional materials at best c orrobor ate or bolster Roberts’ underlying c onclusion; they do not satisfy

the Court that her opinion that a “ rea sonable judg e” would have se ntence d Gaither to probation is “the produc t of reliable principles and me thods” that are “re liably

applied . . . to the fa cts of the c ase.” F E D . R. E V I D . 702. At the same time, the additional materia ls are spe cific to the f acts of G aither’ s case , and ar e ther efor e irre levant to the g ener alized testimony

about sentenc ing f

actor s that the Court has allowed. A ccor dingly , Plaintiff’s [236] Motion to S upplement shall be DEN I ED bec ause c onsideration of the proposed supplemental re port would not alter the Court’ s conclusion about the pr oper sc ope of Rober ts’ testimony at trial. 2 2 V. CONCLUSION AND ORDER The Court has c onsidered the rema ining a rguments tendere d by

the par ties and has conclude d that they

are either w ithout merit or need not be a ddresse d in light of the ba sis for the Court’s decision. Ther efor e, and f or the re asons set for

th above, it is, this 19th day of De cembe r, 2011, here by ORDERED that Roberts is PR ECL UDED f rom testifying a s to (1) her opinion of the sentenc e Judge K

rame r likely

would have imposed in Ga ither’s c riminal case , (2) he r opinion that J udg e Kr amer

was a “re asonable judge ,” “down the middle,” and “ not an outlier” in sentenc ing, a

nd (3) he r opinion as to how a “ rea sonable judg e” w ould have se ntence d Gaither

. Howeve r, Roberts may

testify , in ge nera l terms, as to the fa ctors that a judg e mig ht take into

Parenthe tically , the Court observe s that Plainti ff a nd Roberts offe r a spe culative 2 2 interpre tation of the additional mater ials and, in particula r, Judge Kr amer ’s statements on the rec ord duringproce eding s in Gaither’ s criminal ca se. Howe ver, no one claims that Roberts has an expertise in divining Judge Kramer’s state of mind. 32acc ount in the course of sentenc ing a

criminal def

endant a nd respond to appr opriate hy pothetical questions desig ned to elicit an opinion as to whe ther c erta in fac tors would be a positive or neg ative conside ration in sentenc ing. A ccor dingly , Mag istrate Judge K ay ’s [120] Memorandum Orde r is AFF I RMED in releva nt part. I t is F URTHER ORDERED that Plaintiff’s [236] Motion to S upplement is DENI ED. SO ORDERED. /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

33