MEMORANDUM OPINION AND ORDER
The right to counsel guarantees more than an attorney who will stand next to you at trial. Rather, the Sixth Amendment “envisions counsel[] playing a role that is critical to the ability of the adversarial .system to produce just results.”
BACKGROUND
Pain is not like a broken leg, torn muscle, or tumor; objective tests can neither prove nor disprove the existence of pain. Doctors can of course use objective tests to identify an injury that might cause pain. But doctors must rely on their patients’ subjective reports to determine the level of pain their patients are experiencing. It is now common for doctors to treat pain with medication, including opiates.
Dr. Arny was not a specialist in pain management. Rather, he was trained as a pathologist and worked in the military for most of his career. R. 308 at 8-12 (trial testimony of Dr. Arny). Dr. Arny initially retired from medicine in 2009, when he was in -his early 60s. Id. at 12. A year later, Dr. Arny ran into financial troubles and thus decided to return to work. Id. at 13. After Dr. Arny failed to secure work as a pathologist, he received a job offer from Ray and Tina Stapleton. Id. at 13, 14. The Stapletons were looking for a doctor to work at their clinic until they could find a doctor who was certified in pain management. Id. at 14.
Dr. Arny began working at PAAH in August 2010. He inherited most of his patients from Dr. Doina Saxman, his predecessor at PAAH, and he continued to treat his new patients in accordance with her plans. Id. at 16, 20. But one month after starting his job at PAAH, Dr. Arny realized it was not a good fit, so he gave the Stapletons notice. Id. at 16. The Sta-pletons expected Dr. Arny to see 30 to 35 patients a day, and Dr. Arny felt that he could not adequately treat so many patients in so short a time. Id. Soon after he left, though, the Stapletons convinced Dr. Amy to return to the clinic until they
On August 2, 2012, a grand jury indicted Dr. Arny, the Stapletons, and Dr. Emmanuel Acosta (Dr. Arny’s successor), for conspiring to distribute- and unlawfully dispense several controlled substances in violation of 21 U.S.C. § 841(a)(1). R. 1 (indictment).
Dr. Arny went to trial on September 15, 2014. Because Dr. Arny prescribed the drugs through his medical work, the government bore the burden to prove that Dr. Arny conspired with others to distribute controlled substances “outside the course of ordinary medical practice.” R. 279 at 13 (jury instructions). To prove that Dr. Arny operated “outside the course of ordinary medical practice,” the government needed to show that Dr. Arny did not issue the drugs for a legitimate medical purpose and in the usual course of medical practice. Id. at 16.
To try to prove these two elements, the government relied mostly on the testimony of (1) medical expert Dr. Paul Harries and (2) four of Dr. Arny’s prior patients. Dr.' Harries testified that Dr. Arny did not examine his patients, did not have valid doctor-patient relationships, and prescribed a “toxic” combination of medications to patients without a demonstrated medical need. See R. 284-1 at 33-35,114-15. Dr. Harries opined that Dr. Arny -had not prescribed these medications “for a legitimate medical- purpose” or “in the- usual course of medical practice.” Id. at 40. Four of Dr. Arny’s patients testified consistently with Dr. Harries. Specifically, they testified that Dr. Arny did not examine them thoroughly or ask them'any questions. See R. 305 at 185-247, 252-295. They also testified that they saw Dr. Arny to feed a drug habit, not because they legitimately needed pain medication. See id. In total, the government called' 15 witnesses, including the Stapletons, two detectives, and an official from the Kentucky Board of Medical Licensure (“KBML”), ■ ■'
On the other hand, after two years of representing Dr. Arny,' previous counsel called only three witnesses on Dr. Arny’s behalf. One of these witnesses was Dr. Arny himself. He testified that he was just following Dr. Saxman’s treatment plans when he arrived at PAAH. R. 308 at 20. Dr. Saxman was not indicted in the case; in fact, she is still practicing medicine in Lexington, Kentucky. R, 419 at 41 (testimony of Dr. Saxman at evidentiary hearing). Dr. Arny repeatedly asked previous counsel to call Dr. Saxman as á witness for him. See R. 405-1 at 3-8 (emails from Dr. Arny to previous counsel). But they did not call Dr. Saxman to testify.
Previous counsel' also called a medical expert, Dr. William Ackerman. Dr. Acker-man testified that, under the KBML rules, Dr. Arny was not required to examine every patient at every visit. R. 281 at 57. Dr. Ackerman also stated that he believed Dr. Arny was just making the best of a bad situation, and that Dr. Arny was not actually involved in the conspiracy. Id. at 50-51 (“[Bjecause of Dr. Arny’s lack of experience in prescribing medications as
Finally, previous counsel called Tina Stapleton’s mother, Ivory Castle, who worked in a nurse-type position at PAAH while Dr. Arny worked there. On May 30, 2014, over three months before the trial, Dr. Amy told previous counsel to call Ms. Castle. R. 405-1 at 7; see also id. at 5 (“I want the jury to hear from Dr. Ackerman, Dr. Saxman, the nursing staff, patients I helped, and a representative from [an] MRI facility.”). Even so, previous counsel failed to meet with her at all; she went to the stand unprepared. See R. 306 at 79.
The defense called no other witnesses. Previous counsel did not call any patients that Dr.- Amy helped and thus were unable to rebut the testimony of the patients who testified for the. government. They did not call Dr. Saxman to testify that her treatment plan-r-which Dr. Arny followed—was based on legitimate medical need. See id. at 3, Instead, previous counsel called a medical expert whose testimony- partially bolstered the government’s case, a witness whom they had not prepared, and the defendant himself. Then they rested.
After the three-day trial, Dr. Arny was convicted of conspiracy to distribute and unlawfully dispense controlled substances. Shortly after his conviction,- Dr. Arny retained new lawyers to examine his case. Dr. Amy’s new counsel filed a motion under Federal Rule of Criminal Procedure 33 arguing that Dr. Arny was entitled to a new trial on the basis of ineffective assistance of counsel. R. 336. For the reasons stated below, that motion is granted.
DISCUSSION
Under Federal Rule of Criminal Procedure 33, the court may grant a defendant’s motion for a new trial if “the interest of justice so requires.” Fed, R. Crim. P. 33(a). Rule 33 does not define the “interest of justice,” however, and courts have struggled to determine the meaning of those words. United States v. Kuzniar,
At the Rule 33 stage, the trial judge has just witnessed the trial and thus is in a unique position to assess the errors of counsel and the effect of those errors on
I. Strickland Deficiencies
Counsel’s conduct is objectively unreasonable under Strickland if, “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690,
a. Previous counsel lied to Dr. Arny
On several occasions, Dr. Arny asked previous counsel to call Dr. Saxman as a witness during his trial. R. 405-1 at 1 (Dr. Arny affidavit); id. at 3-8 (emails between Dr. Arny and previous, counsel). He noticed that Dr. Saxman was not indicted, even though he- prescribed the same combination of pills she did. -Thus, Dr. Arny believed that Dr. Saxman might be able to provide helpful testimony. R. 405-1 at 3. In an email to previous counsel, Dr. Arny stated, “I see Dr. Saxman is actively practicing medicine in Lexington, Kentucky and I am charged with a felony. What did I do that she did not do? ... I want to call my predecessor, Dr. Saxman, as a witness in my defense.” Id. A month later, though, previous counsel wrote to Dr. Arny that Assistant United States Attorney Roger West told, them that “Dr. Saxman has either a deal in place or soon will- be indicted. .Following her time at [PAAH]. Her Lexington clinic was searched.” Id. at 8. None of that was true, and Mr. West never made such a statement to previous counsel. See R. 429 at 25.
Dr. Arny argues that previous counsel’s lie about Dr. Saxman was constitutionally-unreasonable conduct under Strickland. Lawyers have an ethical duty not to lie to their clients. See Lisa Lerman, Lying to Clients, 138 U. Pa. L. Rev. 659, 661 & n. 2 (1990). And, although the Model Rules of Professional Responsibility (“Model Rules”) do not explicitly prohibit lawyers from lying to their clients, Model Rule 8.4(c) states that “it is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Model Rule 1.4(b) also requires lawyers to explain matters “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation,” Here, previous counsel falsely told Dr. Amy that Dr. Sax-man was going to be indicted, thus depriving him of the ability to make an “informed decision” about whether she should testify on his behalf. And previous counsel certainly “engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Previous counsel’s misrepresentation to Dr. Arny therefore fell below prevailing professional norms and hence was deficient conduct under Strickland. ■ -
b. Previous counsel failed to interview Dr. Saxmán or call her as a witness
Dr. Arny also alleges that previous counsel erred when they decided not to
Dr. Arny explained to previous counsel that he continued Dr. Saxman’s treatment plans because she noted that they had been effective. R. 405-1 at 3. Though the government implied that Dr. Saxman’s treatment plans were illegitimate, see R. 284-1 at 33-35 (deposition of Dr. Harries) (noting that Dr. Arny was prescribing a toxic combination of medications); R. 281 at 25 (deposition of Dr. Ackerman) (stating that Dr. Arny' prescribed medications initially ordered by Dr. Saxman), Dr. Saxman was riot indicted and was still practicing medicine. R. 405-1 at 3. Therefore, Dr. Arny reasonably believed her testimony would demonstrate that he did not conspire with the Stapletons, as it would show that he prescribed the drugs for a legitimate medical purpose. Id. Despite Dr. Amy’s repeated requests and persuasive reasons for Dr. Saxman to testify at his trial, previous counsel still did not interview Dr. Saxman or call her as a witness. See R. 277 (exhibit and witness list).
The government responds that previous counsel’s decision not to interview Dr. Saxman was strategic. Unlike Dr. Arny, Dr. Saxman had examined every patient before prescribing pain medication, so previous counsel determined her testimony would be more harmful to Dr. Arny than helpful. R. 404-1 ¶ 2. As an initial matter, it is unclear how harmful this testimony would have been. First, Dr. Amy was not required to examine patients at every visit before issuing prescriptions. See R. 281 at 57 (deposition of Dr. Ackerman); R. 284-1 at 27-30 (deposition of Dr. Harries) • (explaining that doctors prescribing this level of pain medication should examine patients at every visit before issuing- prescriptions but were not required to do so under KBML rules at the time). As such, the fact that Dr. Arny did not examine patients at every visit was only circumstantial evidence that he was prescribing pain medications outside “the usual course of medical practice.” On the other hand, Dr. Saxman could have explained why she believed her treatment plans were medically necessary. So Dr. Saxman’s testimony would have rebutted the government’s direct evidence that Dr. Arny could not have
Moreover, “[a] purportedly strategic decision is not objectively reasonable when the attorney has failed to investigate his options and make a reasonable choice between them.” Towns v. Smith,
c. Previous counsel failed to investigate or interview Dr. Arny’s patients
Dr. Arny argues that his counsel was ineffective for failing to investigate or interview his previous patients. The government called four of Dr. Amy’s patients as witnesses against him, but previous counsel did not call a single patient, even after Dr. Amy emailed previous counsel asking them to call to the stand “patients [whom Dr. Amy] helped.” R. 405-1 at 5. Previous counsel performed no investigation following this request from Dr. Arny, nor did previous counsel interview any of Dr. Arny’s patients. After Dr. Amy moved for a new trial, the Court ordered Dr. Amy to provide evidence related to his patients. R. 433. He submitted six affidavits from previous patients whom he helped or whose testimony would be helpful to his case. Nee R. 434. As Dr. Amy points out, his new counsel found these patients in four business days, while previous counsel did not find a single one in two years. Id.
The question is whether defense counsel made an unreasonable decision when they neither investigated nor interviewed Dr. Arny’s previous patients. Counsel has a duty to “investigate all witnesses who may have information concerning his or her client’s guilt or innocence.” Towns, 395 F.3d,at 258. Dr. Arny’s patients who had legitimate pain could have testified that
The record contains no evidence that the decision not to investigate or interview these patients was strategic; rather, it stems from neglect. See United States v. Six, 600 Fed.Appx, 346, 351 (6th Cir.2015) (“It is not the court’s duty to second-guess [counsel’s] strategic decisions but, instead, to decide whether they were in fact strategic decisions and not neglect.”). In his affidavit, Mr." Owens stated that previous counsel reviewed some files and wanted to focus on the positive documents therein, so they chose not to review other fílés. R. 438-1. That statement may explain why counsel chose not to investigate other' patient files, but it does not explain why counsel failed to interview some of Dr. ■Amy’s previous patients to determine if any of them could offer testimony helpful to Dr. Arny. The government offers no explanation for why previous counsel chose not to investigate or interview any of Dr. Amy's patients. Without any evidence of a reasonable strategy, .the decision not .to investigate or interview patients seems unjustified.
The government responds that Dr.Arny agreed that testimony from his previous patients would not be helpful. R. 438 at 3. In support of this argument, the government points to an email from Dr. Arny to previous counsel in which he said: “In my opinion there is nothing special-about .[the 30 charts reviewed by' the state] and if ANY other 30 charts were selected they would have said exactly the same thing.” R. 438-2 (sent November 2012). Dr. Arny did admit that all of his charts Were virtually the same, and he agreed that previous counsel should not investigate' other patient files. Id. Nowhere in the email, though, did Dr. Arny agree that his patients should not testify] or that counsel should not interview patients he helped. In fact, Dr. Arny stated in an email over a year later that he wanted them to call patients he helped. R. 405-1 at 5 (sent January 2014). Indeed, the whole point of patient testimony is to provide extra information not immediately apparent from medical files. So Dr. Amy never agreed that his patients should not testify. Thus, previous counsel’s décision not to interview or investigate these patients was unreasonable.
II. Strickland Prejudice
To show constitutionally-ineffective assistance under Strickland, a defendant must also .demonstrate that counsel’s professionally unreasonable errors prejudiced his defense. In- other words, he must show that there is a reasonable probability that but for counsel’s errors, the jury would have found reasonable doubt.
Here, previous counsel lied to Dr. Arny and failed to interview Dr. Saxman. As a result, she never testified at trial. And because previous counsel failed to investigate or interview patients Dr. Arny helped, none of them testified either. Therefore, the question is whether there is a reasonable probability that the jury would have acquitted if Dr. Saxman and Dr. Arny’s patients had testified.
a. Effect of the lie and the failure to interview Dr. Saxman
Dr. Saxman’s testimony would have helped challenge a key element of the charge against Dr. Arny: whether he had a legitimate medical purpose for issuing the prescriptions. The government expert, Dr. Paul Harries, testified that: Dr. Arny was prescribing a “toxic” combination of medications to some patients; that this combination “tell[s] you the odds are that there is some kind of abuse going on here”; that there was no need to prescribe those medications; and that “[e]very patient was getting multiple controlled substances for no clear valid medical reason, with no treatment plan, no treatment goal.” R. 284-1 at 17, 34-35, 40, 117. Thus, the government argued, Dr. Harries’s testimony showed that Dr. Arny had no legitimate medical purpose for prescribing those medications.
According to Dr. Arny, however, he was just following Dr. Saxman’s treatment plans when he prescribed these medications. And there is nothing to suggest that Dr. Saxman was involved in the conspiracy: she has not been indicted, her current office has not been searched, and, to the Court’s knowledge, she has never even been told she was the target of an investigation. Imagine the power of Dr. Saxman’s testimony. She’ could have testified that, although she created the treatment plans on which Dr. Arny relied, she continues to practice medicine, and the government has not investigated, arrested, or charged her. Any lay person hearing this would surely have serious questions about whether these combinations of med-' ication were truly toxic. Moreover, Dr. Saxman could have explained why she prescribed those combinations of pills to specific patients. Her testimony, therefore, would have allowed defense counsel' to argue that a reasonable doctor would have— and in fact, did—prescribe the combination of medications that Dr. Arny was prescribing. So her testimony could have shown that there was a legitimate medical purpose for these prescriptions.
Dr. Saxman also would have counteract^ ed the testimony of some of Dr. Amy’s previous patients. Josh Haney, for example, testified for the government that he kept seeing Dr. Arny because “[i]t fed a habit,” not because he had a legitimate medical need for pain killers. R. 305 at 193. However, Haney also admitted that he received his first oxycodone prescription from Dr. Saxman. Id. at 195. Kimberly Preston testified that Dr. Saxman initially prescribed her Percocet 10s, and that Dr. Amy initially lowered her to Lortab but then continued the Percocet afterwards. R. 305 at 210, 212, 214. Rosa Sexton, another
The government responds again that Dr. Saxman’s testimony would actually have hurt Dr. Arny more than it helped. However, as discussed above, Dr. Saxman’s testimony would have been more helpful (to counteract the government’s proof regarding “legitimate medical purpose”) than harmful (regarding Dr. Arny not seeing every patient, which was uncontested). Supra Part I.b. So this argument fails.
b. Effect of the failure to investigate or interview Dr. Arny’s patients i. Legitimate medical purpose
Dr. Arny’s new counsel submitted affidavits from six patients whom he helped.
ii. Usual course of medical practice
The testimony of - Dr. Arny’s patients would have also countered the government’s evidence that Dr. Arny did not
James Bevins’s testimony would also have indicated that Dr. Arny cared about his patients and prescribed medication in the “usual course of medical practice.” As a preliminary matter, Bevins was examined monthly from September 2010 through September 2011. R. 441-1 at 43, 46, 48, 50, 53, 57; R. 441-2 at 2, 4, 6, 9, 11, 13. His records also show that Dr. Arny actively adjusted Bevins’s medication as necessary. See id. at 43, 46, 48, 50, 53. Such adjustments arguably fell within the “usual course of medical practice,” see R. 284-1 at 26-27, and suggest a valid doctor-patient relationship. See R. 434-2 at 1 (affidavit of Bevins) (“From my experience, Dr. Arny provided me with good medical care.”); but see R. 284-1 at 40 (deposition of Dr. Harries) (stating Dr. Arny did not have a valid doctor-patient relationship with his patients); R. 307 at 12 (closing argument ’ of government) (“Was [Dr. Arny’s prescription of controlled substances] outside the usual course of medical practice? Yes, it was. It wasn’t even a medical practice. It was a pill mill. Was there any doctor/patient relationship? There’s no evidence, of that. None.”). Moreover, Dr. Harries stated that Dr. Arny was prescribing a “near toxic” amount of Tylenol to his patients, which showed a “complete disregard for the well-being of the patients.” R. 284-1 at 114-15. However, Bevins’s medical records demonstrate that Dr. Arny was worried about the amount of Tylenol he was prescribing. Dr. Arny originally lowered Bevins’s Per-cocet to 10/325 to decrease the level of acetaminophen (Tylenol) Bevins was taking. R. 441-1 at 50; Dr> Arny also took Bevins off Lorcet completely to decrease his Tylenol consumption. See id. - at 48. However, Bevins experienced increased pain as a result, so Dr. Amy had to put him back on Lorcet. Id. at 46. And the next month, Dr. Arny reduced Bevins’s Lorcet to 10/325, noting “chronic use of pain meds [with] Tylenol.” Id. at 43. Thus, Bevins’s testimony and medical records would have shown that Dr. Arny '(a) worried about the level of Tylenol his patients
Patient Brian Blackburn’s testimony would also have been helpful to show Dr. Arny’s interest in his patients. In his affidavit, Blackburn stated that “Dr. Arny told me don’t take [the pills] if you don’t need them for pain. He also went over my medications. He told me if I take top much it could hurt my liver. Dr. [Arny] wanted to make sure I was taking my medications the right way.” R. 434-4 at 2. These statements suggest that Dr. Arny properly warned patients of the risks associated with pain medication. Blackburn’s medical records support his affidavit. For example, Dr. Arny decreased Blackburn’s Lorcet to reduce his acetaminophen intake. R. 441-5 at 49. Dr. Arny and Blackburn also discussed the option of switching from Lorcet 10/650 to Percocet 7.5/325 to lower his acetaminophen intake. Id.
The testimony and medical records of all three of the patients discussed above also would have contradicted the government’s evidence that Dr. Arny’s examinations were outside the usual course of medical practice. At trial, the government introduced evidence that Dr. Arny only éxam-ined young, skinny female patients. See, e.g., R, 305 at 36 (testimony of Mr. Staple-ton). The government used this evidence to show that Dr. Arny’s method for determining which patients to examine was not within usual course of medical practice. See R-. 284-1 at 21-23 (explaining that a doctor must examine patients to show a valid doctor-patient relationship). None of the patients mentioned above fit the description of young and skinny females. See R. 441 at 17, 68; R. 441-1; R. ,441-5. Also, the medical records reveal that these patients' were seen monthly. Finally, for all three of these patients, Dr. Arny adjusted their medication when necessary, whether to help with increased pain, to reduce weight gain, or to decrease levels of Tylenol consumption. Thus, these, witnesses would suggest that' Dr. Arny did not only examine or care about “young, skinny females.” R. 305 at 36.
iii. Testimony of patients the government called
Finally, Dr. Arny’s patients would have challenged the testimony of the patients whom the government called. The government’s patient witnesses testified generally that Dr. Arny did not examine them, and that he just continued Dr. Saxman’s course of treatment without asking any questions. See R. 305 at 188-90, 210-15, 237, 242. But these patients were confessed drug addicts who faced criminal charges for selling controlled substances. See,• e.g., id. at 200-02, 227-28, 253-54. On the other hand, the patients presented by Dr. Arny were non-drug addicts with legitimate pain problems. Had the jury heard testimony from these patients that Dr. Arny examined them, adjusted ■ their medications when necessary, and provided them with good treatment, the jury might have believed them ovér the government’s witnesses.
Indeed, the affidavits submitted by Dr. Arny’s patients and their medical records paint a somewhat different picture than that of the government’s witnesses. Jamie Adkins stated that Dr. Arny initially prescribed her the same medication as her previous doctor, but then Dr. Arny, reduced her medications. R. 434-1 at 2; see also R. 441 at 59. James Bevins stated that Dr. Arny noted in his chart that Bevins’s pain was increasing due to his medication reduction. R. 434-2 at 2. Bevins’s medical records show that Dr. Amy. took Bevins off Lorcet, for example, due to Tylenol, but then re-prescribed it when Bevins’s pain increased. R. 441-1 at 46, 48. Brian Blackburn stated that Dr. Arny referred him to get tests done, which showed he had spinal stenosis and bulging disks. R. 434-4 at 2. Dr. Arny also counseled him on not taking
On the whole, these patients would have powerfully rebutted the government’s evidence. They would have provided the jury with personal accounts of how Dr. Arny helped them deal with their legitimate, chronic pain. And their medical records would have shown that Dr. Arny did not just blindly follow Dr. Saxman’s treatment plans; rather, he adjusted medications when necessary, and prevented his patients from taking too much acetaminophen. Moreover, as discussed above, the record contains no evidence that these patients were drug addicts. The jury could easily have found them more credible than the government’s patient witnesses. Overall, the testimony of these patients would have caused the jury to question whether Dr. Amy illegitimately prescribed pain medications or lacked valid doctor-patient relationships, even with the government’s witnesses.
c. Cumulative prejudicial effect of these deficiencies
As stated above, the government needed to prove beyond a reasonable doubt that Dr. Amy did not distribute controlled substances “for a legitimate medical purpose” or “in the usual course of medical practice.” R. 279 at 16. Through the testimony of Dr. Harries and Dr. Amy’s previous patients, the government suggested that Dr. Arny acted unreasonably as a doctor and that there was no legitimate reason for him to be- prescribing the medications he prescribed.
The testimony of Dr. Saxman and the patients Dr. Arny helped would have rebutted the government’s evidence. Dr. Saxman’s testimony would have demonstrated that there was a “legitimate medical purpose” for the prescriptions Dr. A!my signed when he was following her treatment plan. And the testimonies of the patients Dr. Arny helped (coupled with their medical records) would have suggested that Dr. Arny acted as a reasonable doctor—he did examine his patients, and he attempted to lower their medications when necessary. It is trae that many of Dr. Amy’s charts reveal that Dr. Amy did not see his patients every visit, and that his examinations may have been incomplete when he did. But these facts just show that Dr. Amy may have -been a bad pain doctor, they are not themselves sufficient to prove that he-was . involved in the conspiracy. See id, (instructing jury that “[yjou may not convict the defendant merely because he acted negligently or failed to follow a rule or proper medical standards.”). And the medical records of Jamie Adkins, James Bevins, and Brian Blackburn reveal that .they were examined on every visit, and that Dr. Arny reacted
III. Remaining Errors
Dr. Arny asserts that previous counsel made five other errors that were unreasonable. One of these errors was previous counsel’s failure to attend an important Daubert hearing. A year before Dr. Amy’s trial, counsel for the other three defendants filed Daubert motions to exclude Detective Hunter, a state, police officer whom the United States wás offering as an expert witness on pill mills. R. 127; R. 133. Previous counsel did not file a Dau-bert motion or join in his codefendants’ motion. On August 5, 2013, a hearing was held on the defendants’ motions. R. 159 (transcript of Daubert hearing). Detective Hunter testified at the hearing and was cross-examined by counsel for the other three defendants. But previous counsel was not present at the hearing. R. 160 (minutes of Daubert hearing). As a result, previous counsel did not hear Detective Hunter testify, and they were unable to cross-examine Detective Hunter. Following the hearing, the Court limited Detective Hunter’s opinion, stating it would be unduly prejudicial under Federal Rule of Evidence 403 for him to opine on whether PAAH exhibited the features of a pill mill, and whether any of the characteristics of PAAH were inconsistent with a legitimate medical practice. R. 182 at 3-4 (Daubert order).
Dr. Arny claims that previous counsel’s failure to attend the hearing was unreasonable. Previous counsel did not have permission from the Court to miss the hearing. R. 159 at 4-5. Of course, that alone does not make their performance deficient under Strickland. But when counsel fails to attend a hearing where a key witness will testify,' they lose the opportunity to assess the witness’s credibility, the witness’s responses to questions, and the witness’s demeanor. None of these things can be gauged from a cold transcript. Moreover, observing counsel for the other defendants question the witness can help counsel determine whether their own cross-examination strategy is sound. Indeed, as most defense counsel know, the opportunity to question a government witness ahead of trial can help counsel assess the strengths and weaknesses of the government’s case and of that particular witness. Giving up this opportunity can ultimately harm the client, as it did here.
Despite the importance of the hearing, though, previous counsel’s failure to attend the hearing is not unreasonable conduct under Strickland. Since previous counsel did not file or join a Daubert motion to exclude Detective Hunter’s testimony, counsel reasonably .could have believed they did not need to attend the hearing.
Unfortunately, however, the damaging effect of not attending the hearing and assessing the strength of Detective Hunter’s testimony became immediately apparent at trial. Detective Hunter was one of the government’s best and most credible witnesses. Previous counsel would surely havé noticed this if they had attended the hearing—the Court- certainly . did. In its Daubert order, the Court excluded as unduly prejudicial Detective Hunter’s application of the facts in this case to the profile of a pill mill, stating that “there is a particularly acute risk the jury will convict [the defendant] simply because the defendant fits the profile” of a pill mill doctor. R. 182 at 13 (citing United States v. Quigley,
Because the decision not to attend the Daubert hearing was reasonable under Strickland, the fact that -this decision might also have prejudiced Dr. Arny through Detective Hunter’s testimony has no effect on the Court’s decision today. Under some lesser standard of ineffective assistance of counsel' under Rule 33, the
CONCLUSION
In the end, previous counsel’s representation of Dr. Arny was constitutionally deficient under Strickland. Accordingly, it is ORDERED that Dr. Amy’s motion for a new trial, R. 336, is GRANTED.
A separate opinion will issue on the defendant’s motion for leave to file, R. 335.
. Dr. Arny was charged with conspiracy to distribute and unlawfully dispense three controlled substances: Oxycodone, Hydrocodone, and Xanax. R, 279 at 13.
. Previous counsel did hire a private investigator to subpoena Dr, Saxman in June 2014, but Dr. Saxman was out of the country, so he could not serve her. R. 419 at 36-37 (testimony of private investigator). Previous counsel did not attempt to subpoena Dr. Saxman again, id. at 38, even though Dr. Arny’s trial was postponed twice. R. 247 (rescheduling Dr. Arny's trial for August 18, 2014); R. 269 (rescheduling trial for September 15, 2014). Dr. Arny alleges that previous counsel told him Dr. Saxman could not testify at his trial because she was out of the country at the time of the final trial date. R. 405-1 at 1 (affidavit of Dr. Arny); but see R, 419 at 42 (testimony of Dr. Saxman) (noting that Dr. Saxman was in the United States during Dr. Arny’s trial).
. Though previous counsel did not have a duty to interview all of the patients Dr. Arny helped, they did have a duty to interview some of these patients to determine whether they had helpful information.
. The Court only gave Dr. Amy four business days to find, and obtain affidavits from patients Dr. Amy helped. In those four days, Dr. Arny's current counsel was able to get affidavits from six patients. Given more time, current counsel will likely be able to find more" patients to testify on Dr. Arny’s behalf.
. Dr. Amy prescribed oxycodone in the form of Percocet. Percocet is a mixture of oxyco-done and acetaminophen (the main dmg in Tylenol). Dr. Arny prescribed hydrocodone in the form of Lorcet, which is a combination of hydrocodone and. acetaminophen. Acetaminophen enhances the pain-killing effects of oxy-codone and hydrocodone. The amount of acetaminophen in each drug is indicated by the second number describing the substance. For example, Percocet 10/6’50 has 650 mg of acetaminophen, while Percocet 10/325 has 325 mg of acetaminophen. So Percocet 10/325 has half as much acetaminophen as Percocet 10/650.
. Adkins also stated that Dr. Arny switched her from "Lorocet to Norocot” because Noro-cot "had less Tylenol and would be less damaging to [her] liver.” Id. The government correctly points out that Dr. Acosta switched Adkins to Norocot, not Dr. Arny. See R. 441 at 53. However, Adkins’s medical records still demonstrate that Dr. Arny examined Adkins on multiple visits and did lower her Xanax and Soma prescriptions when necessary. Id. at 59.
. The Court does not come to this decision lightly. Steve Owens and Kent Varney are two of the finest lawyers in Eastern Kentucky and have appeared before the Court on numerous occasions. There are many occasions where Mr. Owens and Mr. Varney went above and beyond the call of duty in representing their clients. This just happened not to be one of those occasions.
. Dr. Amy also argues that previous counsel's failure to enforce the Daubert order during cross examination was its own error under Strickland. However, cross examinations "fall[] within the area of trial" tactics and strategy that should not be subjected to second guessing and hindsight by this Court.'’ United States v. Steele,
. Dr, Amy asserts that previous counsel .made three more errors that were deficient under Strickland, when they (a).failed to file any motions. in limine, (b) failed to file a motion to suppress Dr. Arny’s statement, and (c) failed to address the elements of the crime in closing argument Because the three errors discussed supra Part I are sufficient to meet Strickland, the Court need not address the remaining errors. .