Timothy Filson, Warden v. Tracy Petrocelli

While Tracy Petrocelli was in custody on the underlying charge of murder, the State sent Dr. Lynn Gerow, a psychiatrist, to evaluate Petrocelli. At trial, the defense presented three expert reports on Petrocelli’s mental condition to establish mitigating circumstances. The State called Dr. Gerow on rebuttal. Dr. Gerow testified that he agreed with the diagnoses independently reached by two of Petrocelli’s experts—antisocial personality disorder—but he disagreed with those experts on whether antisocial personality disorder is treatable. The Ninth Circuit granted habeas relief, concluding that Dr. Gerow’s testimony violated the Fifth and Sixth Amendments because he had evaluated Petrocelli without advising him of his right to remain silent or obtaining defense counsel’s permission to conduct the evaluation. The questions presented are:

1. Whether the admission of an expert opinion offered to rebut a defendant’s mitigating evidence on the treatability of the defendant’s psychiatric condition violated the Fifth and Sixth Amendments solely because the State’s expert conducted a pretrial evaluation of the defendant without advising the defendant of his right to remain silent or obtaining defense counsel’s permission to conduct the evaluation.

2. Whether a habeas petitioner can establish actual prejudice where the challenged testimony was an admissible expert opinion under state evidentiary law.