govinfo:USCOURTS-azd-4_15-cv-00152-20

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
Nina Alley, 
 
Plaintiff, 
 
v. 
 
County of Pima, et al., 
 
Defendants. 
No. CV-15-00152-TUC-RM 
 
ORDER 
 
 
 
 Pending before the Court are the parties’ Motions in Limine. (Docs. 911, 916, 938, 
939, 940, 941, 942, 943, 944, 945, 946, 947, 948, 951, 952, 954, 956, 957, 958, 960, 962, 
963, 965, 967, 968, 969, 970, 971, 972, 973, 974, 975, 976). 1 Defendants Pima County 
and the City of Tucson join in one another’s Motions (Docs. 978, 991) and in one another’s 
Responses to Plaintiff’s Motions (Docs. 1041, 1065). 
I. Background 
 On December 19-20, 1970, a fire killed 28 people at the Pioneer Hotel in downtown 
Tucson, Arizona. (Doc. 343 at ¶ 56; Doc. 365 at ¶ 56; Doc. 374 at ¶ 56.) On March 21, 
1972, a jury convicted former Plaintiff Louis Taylor2 of 28 counts of murder arising from 
the deaths. (Doc. 340-9 at 10-12.) Taylor was sentenced to life imprisonment. (Doc. 340-
9 at 36 -37.) In 2012, Taylor filed a Petition for Post -Conviction Relief, and the Pima 
 
1 Also pending are Motions in Limine that were filed under seal. (Docs. 898, 982, 983, 
984.) The Court will address those Motions in a separate, sealed Order. 
2 Taylor’s Guardian and Conservator, Nina Alley, has been substituted in place of Taylor 
as the named plaintiff in this action. (Doc. 624.) The Court uses the term “Plaintiff” herein 
to refer interchangeably to Taylor. 

 
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County Attorney’s Office (“PCAO”) began a review of his case. (Doc. 348-3; Doc. 341-4 
at 2-15; see also Doc. 335 at ¶¶ 624, 631, 642; Doc. 367 at ¶¶ 624, 631, 642.) Following 
the review, the Pima County Attorney offered Taylor a plea by which Taylor received a 
time-served sentence and was released from prison in exchange for pleading no-contest to 
the original 28 counts of murder. (Doc. 348-10; Doc. 348-11.) After his release, Plaintiff 
filed the above-entitled civil action, raising claims under 42 U.S.C. § 1983. (Doc. 1.) 
 On March 16, 2017, this Court ruled that —due to his outstanding 2013 
convictions—Plaintiff is barred by Heck v. Humphrey , 512 U.S. 477 (1994), from 
premising his § 1983 claims “on the alleged constitutional injuries of being wrongfully 
charged, convicted, and imprisoned” and that Plaintiff is preclud ed from seeking 
incarceration-based compensatory damages. (Doc. 63 at 10-11, 19-20.) The Court further 
held that the interplay between Heck and the statute of limitations sharply limits Plaintiff’s 
claims. ( Id. at 13-17.) Specifically, t he Court found that the statute of limitations bar s 
Plaintiff from premising his claims on allegations that he was arrested without probable 
cause or that he was unlawfully interrogated. (Id. at 11-12.) The Court found that neither 
Heck nor the statute of limitations bar s Plaintiff from premising his claims on allegations 
that his “rights to due process and a constitutionally fair, racially unbiased trial were 
violated during his original trial proceedings by the non-disclosure of the Truesdail Report, 
the hiring of an expert who believed Plaintiff was guilty because ‘black boys’ are more 
likely to start fires, and the presentation of false testimony from two ‘jailhouse snitches .’” 
(Id. at 16.) On interlocutory appeal, the Ninth Circuit affirmed this Court’s finding that 
Heck bars Plaintiff from seeking incarceration-related damages, holding that “[a] plaintiff 
in a § 1983 action may not recover incarceration -related damages for any period of 
incarceration supported by a valid, unchallenged conviction and sentence.” Taylor v. Cnty. 
of Pima, 913 F.3d 930, 936 (9th Cir. 2019). 
 Plaintiff then moved for leave to amend his operative complaint to include a request 
for a declaratory judgment expunging his 2013 convictions “as unconstitutiona l, and thus 
invalid.” (Doc. 103; see also Doc. 169 at 26.) The Court granted Plaintiff leave to file the 

 
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now-operative Third Amended Complaint, determining that “Plaintiff’s factual allegations 
concerning his 2013 post -conviction proceedings are sufficie nt to raise an inference that 
this case may be one of the ‘unusual or extreme cases’ in which expungement” is 
appropriate under Shipp v. Todd, 568 F.2d 133 (9th Cir. 1978) (per curiam). (Doc. 167 at 
8.) The Court later granted the City of Tucson’s Motion to Dismiss Counts Six and Seven 
of the TAC but denied Pima County’s Motion to Dismiss the TAC’s request for a 
declaratory judgment. (Doc. 227.) 
 On January 19, 2024, this Court resolved the parties’ summary judgment motions, 
dismissing Count Two of the Third Amended Complaint and ruling that Counts One, 
Three, Four, and Five remain at issue in this case but cannot be premised on underlying 
violations of Brady v. Maryland, 373 U.S. 83 (1963), arising from a failure to disclose 
evidence of other suspects o r a failure to disclose exculpatory testimony f rom Tucson 
Police Department (“TPD”) Officer Claus Bergman. (Doc. 869.) The Court also clarified 
that Plaintiff cannot obtain damages based on the alleged unlawfulness of his arrest and 
interrogation. ( Id.) The Court denied summary judgment on Plaintiff’s expungement 
claim and found that the Heck bar will be lifted if the jury finds certain facts rendering 
expungement appropriate under Shipp. ( Id. at 20-28.) However, on April 18, 2024, the 
Court grant ed Defendants’ Motion for Reconsideration and dismissed Plaintiff’s 
expungement claim. ( Doc. 1115.) Accordingly, the only claims remaining for trial are 
Counts One, Three, Four, and Five of Plaintiff’s Third Amended Complaint relating to 
Taylor’s 1970-72 criminal proceedings. 
 The parties filed a Joint Proposed Pretrial Order on March 6, 2024. (Doc. 932.) The 
Court heard oral argument on the pending Motions in Limine at a Pretrial Conference held 
on April 11, 2024. (Doc. 1093.) Trial is scheduled to begin on July 8, 2024. (Doc. 1111.) 
. . . . 
. . . . 
. . . . 
. . . . 

 
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II. Applicable Law3 
 Evidence is relevant if it has any tendency to make a fact of consequence in 
determining the action either more or less probable. Fed. R. Evid. 401. Relevant evidence 
is generally admissible, Fed. R. Evid. 402, though it may be excluded “if its probative value 
is substantially outweighed by a danger” of “unfair prejudice, confusing the issues, 
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative 
evidence,” Fed. R. Evid. 403. 
A. Hearsay 
 Generally, an out-of-court statement offered to prove the truth of the matter asserted 
constitutes inadmissible hearsay. Fed. R. Evid. 801(c); Fed. R. Evid. 802. However, under 
Federal Rule of Evidence 801(d)(1), a declarant -witness’s prior statement is non -hearsay 
if the declarant testifies and is subject to cross-examination about the prior statement, and 
the prior statement: 
(A) is inconsistent with the declarant’s testimony and was given under 
penalty of perjury at a trial, hearing, or other proceeding or in a 
deposition; 
(B) is consistent with the declarant’s testimony and is offered: 
(i) to rebut an express or implied charge that the declarant recently 
fabricated it or acted from a recent improper influence or motive in so 
testifying; or 
(ii) to rehabilitate the declarant’s credibility as a witness when 
attacked on another ground; or 
(C) identifies a person as someone the declarant perceived earlier. 
Fed. R. Evid. 801(d)(1). 
 Furthermore, u nder Rule 802(d)(2), an out -of-court statement offered against an 
opposing party is non-hearsay if it: 
(A) was made by the party in an individual or representative capacity; 
(B) is one the party manifested that it adopted or believed to be true; 
(C) was made by a person whom the party authorized to make a statement on 
the subject; 
(D) was made by the party’s agent or employee on a matter within the scope 
of that relationship and while it existed; or 
 (E) was made by the party ’s coconspirator during and in furtherance of the 
 conspiracy. 
Fed. R. Evid. 801(d)(2). 
 
3 The Court discusses herein principles of law that are applicable to multiple pending 
Motions in Limine. The Court discusses more specific principles of law in its analyses of 
the specific pending Motions. 

 
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 Hearsay is not excluded by the rule against hearsay if it falls within an exception 
delineated in Federal Rules of Evidence 803, 804, or 807. When hearsay contains hearsay 
within it, each part of the combined statements must conform with a hearsay exception to 
be admissible. Fed. R. Evid. 805. 
 Federal Rule of Evidence 803 sets forth hearsay exceptions that apply regardless of 
whether the declarant is available to testify live. Rule 804 sets forth exceptions that apply 
only if the declarant is unavailable. Among the Rule 804 exceptions are the exception for 
prior testimony under Rule 804(b)(1) and the exception for statements against interest 
under Rul e 804(b)(3)(A). Under Rule 804(b)(1) , an unavailable declarant’s former 
testimony given at a trial, hearing, or lawful deposition is admissible if “offered against a 
party who had—or, in a civil case, whose predecessor in interest had—an opportunity and 
similar motive to develop it by direct , cross -, or redirect examination.” Fed. R. Evid. 
804(b)(1). Under Rule 804(b)(3)(A), a n unavailable witness’s out -of-court statement is 
admissible as a statement against interest if “a reasonable person in the declarant’s position 
would have made” the s tatement “only if the person believed it to be true because, when 
made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great 
a tendency to invalidate the declarant’s claim against someone else or to expose the 
declarant to civil or criminal liability.” Fed. R. Evid. 804(b)(3)(A).4 
 The residual hearsay exception set forth in Federal Rule of Evidence 807 provides 
that, even if a hearsay statement is not admissible under an exception set forth in Rules 803 
or 804, it is nevertheless admissible if: 
(1) the statement is supported by sufficient guarantees of trustworthines s—
after considering the totality of circumstances under which it was made and 
evidence, if any, corroborating the statement; and 
(2) it is more probative on the point for which it is offered than any other 
evidence that the proponent can obtain through reasonable efforts. 
Fed. R. Evid. 807(a). 
 When a hearsay statement or a statement described in Rule 801(d)(2)(C), (D), or (E) 
 
4 If “offered in a criminal case” as a statement “that tends to expose the declarant to criminal 
liability,” then the statement against interest must also be “supported by corroborating 
circumstances that clearly indicate its trustworthiness.” Fed. R. Evid. 804(3)(B). 

 
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has been admitted in evidence, “the declarant’s credibility may be attacked, and then 
supported, by any evidence that would be admissible for those purposes if the declaran t 
had testified as a witness.” Fed. R. Evid. 806. “The Court may admit evidence of the 
declarant’s inconsistent statement or conduct, regardless of when it occurred or whether 
the declarant had an opportunity to explain or deny it.” Id. 
B. Fact Witness Testimony 
 A lay “witness may testify to a matter only if evidence is introduced sufficient to 
support a finding that the witness has personal knowledge of the matter.” Fed. R. Evid. 
602. Lay witnesses may testify in the form of opinions only if the opinion s are : “(a) 
rationally based on the witness’s perception; (b) helpful to clearly understanding the 
witness’s testimony or to determining a fact in issue; and (c) not based on scientific, 
technical, or other specialized knowledge within the scope of Rule 70 2.” Fed. R. Evid. 
701. Rule 701 “makes clear that any part of a witness’ testimony that is based upon 
scientific, technical, or other specialized knowledge within the scope of Rule 702 is 
governed by the standards of Rule 702 and the corresponding disclo sure requirements.” 
Fed. R. Evid. 701, advisory committee notes to 2000 amendments. 
C. Expert Witness Testimony 
Admissibility of expert testimony is governed by Rule 702 of the Federal Rules of 
Evidence, which provides: 
A witness who is qualified as an expert by knowledge, skill, experience, 
training, or education may testify in the form of an opinion or otherwise if 
the proponent demonstrates to the court that it is more likely than not that : 
(a) the expert’s scientific, technical, or other specialized knowledge will help 
the trier of fact to understand the evidence or to determine a fact in issue; (b) 
the testimony is based on sufficient facts or data; (c) the testimony is the 
product of reliable principles and methods; and (d) the expert ’s opinion 
reflects a reliable application of the principles and methods to the facts of the 
case. 
Fed. R. Evid. 702. This rule imposes a special gatekeeping obligation on the trial court to 
ensure that “the reasoning or methodology” underlying an expert’s testimony is valid and 
can properly “be applied to the facts in issue.” Daubert v. Merrell Dow Pharms, Inc., 509 
U.S. 579, 592-93 (1993). The gatekeeping function articulated in Daubert applies to “all 

 
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expert testimony,” including testimony based on “technical” and “other specialized” 
knowledge in addition to testimony based on “scientific” knowledg e. Kumho Tire Co. v. 
Carmichael, 526 U.S. 137, 141, 147 (1999). 
 A Rule 702 inquiry must focus “solely on principles and methodology, not on the 
conclusions that they generate.” Id. at 595; see also Alaska Rent-A-Car, Inc. v. Avis Budget 
Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013) (“[T]he judge is supposed to screen th e jury 
from unreliable nonsense opinions, but not exclude opinions merely because they are 
impeachable.”). “Vigorous cross -examination, presentation of contrary evidence, and 
careful instruction on the burden of proof are the traditional and appropriate me ans of 
attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. 
 “Unlike an ordinary witness…an expert is permitted wide latitude to offer opinions, 
including those that are not based on firsthand knowledge or observation. ” Id. at 592; see 
Fed. R. Evid. 703 (“An expert may base an opinion on facts or data in the case that the 
expert has been made aware of or personally observed.” (emphasis added) ). Rule 703 
likens an expert’s ability to offer opinions without firsthand knowledge to how a physician 
bases diagnoses on numerous sources, including reports from other medical professionals, 
hospital records, and X rays. Fed. R. Evid. 703, Advisory Committee Notes (1972); see 
also In re Bard IVC Filters Prods. Liab. Litig., No. MDL 15-02641-PHX-DGC, 2017 WL 
6554163, at *2 (D. Ariz. Dec. 22, 2017) (permitting expert testimony based on the opinions 
of other experts and rejecting defendant’s argument that expert opinions must be excluded 
where they “cite, refer to, or even rely on the opinions of other experts in this litigation”). 
 However, for purposes of Rule 702, the term “‘knowledge’ connotes more than 
subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590. Furthermore, 
“[e]xpert testimony should be excluded if it concerns a subject improper for expert 
testimony” such as “one that invades the province of the jury.” United States v. Lukashov, 
694 F.3d 1107, 1116 (9th Cir. 2012) (internal quotation marks omitted). Determining the 
credibility of witnesses, resolving evidentiary conflicts, and drawing reasonable inferences 
from proven facts are functions within the exclusive province of the jury. Bruce v. Terhune, 

 
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376 F.3d 950, 957 (9th Cir. 2004) (per curiam) (internal quotation marks omitted). 
“Resolving doubtful questions of law” and instructing the jury on the law are functions 
within the “exclusive province of the trial judge.” United States v. Weitzenhoff , 35 F.3d 
1275, 1287 (9th Cir. 1993) (internal quotation marks omitted). Accordingly, expert 
witnesses cannot opine on other witnesses’ credibility, Engesser v. Dooley, 457 F.3d 731, 
736 (8th Cir. 2006), nor can they tell the jury what result to reach, United States v. Duncan, 
42 F.3d 97, 101 (2d Cir. 1994). Furthermore, although an expert’s “opinion is not 
objectionable just because it embraces an ultimate issue,” Fed. R. Evid. 704(a), “an expert 
witness cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate 
issue of law,” Hangarter v. Provident Life & A ccident Ins. Co., 373 F.3d 9 98, 1016 (9th 
Cir. 2004) (internal quotation omitted, emphasis in original). Expert testimony may 
constitute an impermissible legal conclusion if the terms used by the expert witness “have 
a specialized meaning in law” or “represent an attempt to instruct the jury on the law, or 
how to apply the law to the facts of the case.” United States v. Diaz, 876 F.3d 1194, 1199 
(9th Cir. 2017). 
Expert testimony is also inadmissible if it simply “present[s] a narrative of the case 
which a lay juror is equally capable of constructing.” Taylor v. Evans, No. 94-CV-8425 
(CSH), 1997 WL 154010, at *2 (S.D.N.Y. Apr. 1, 1997); see also Aya Healthcare Servs., 
Inc. v. AMN Healthcare, Inc. , 613 F. Supp. 3d 1308, 1322 (S.D. Cal. 2020) (“expert 
testimony cannot be presented to the jury solely for the purpose of constructing a factual 
narrative based upon record evidence”). 
D. Disclosure Requirements and Rule 37 Sanctions 
Under Federal Rule of Civil Procedure 26(a)(1), a party must make specified initial 
disclosures without awaiting a discovery request. Among other requirements, a party must 
disclose—unless the use would be solely for impeachment —the names of individuals 
likely to have discoverable information that the disclosing party may use to support its 
claims or defenses, “along with the subjects of that information,” and a copy or description 
“of all documents, electronically stored information, and tangible things that the disclosing 

 
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party has in its possession, cust ody, or control and may use to support its claims or 
defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i) -(ii). A party must also disclose “a computation 
of each category of damages claimed by the disclosing party” and must make available 
“the documents or other ev identiary material . . . on which each computation is based.” 
Fed. R. Civ. P. 26(a)(1)(A)(iii). In addition to initial disclosures under Rule 26(a)(1), a 
party must make expert disclosures under Rule 26(a)(2) and pretrial disclosures under Rule 
26(a)(3). The disclosure of an expert who is “retained or specially employed to provide 
expert testimony in the case” must be accompanied by a written report. Fed. R. Civ. P. 
26(a)(2)(B). If a written report is not required, the expert disclosure must state the subject 
matter on which the witness is expected to present evidence under Federal Rules of 
Evidence 702, 703, or 705, and a summary of the facts and opinions to which the witness 
is expected to testify. Fed. R. Civ. P. 26(a)(2)(C). A party must supplemen t or correct 
Rule 26(a) disclosures and discovery responses “in a timely manner if the party learns that 
in some material respect the disclosure or response is incomplete or incorrect.” Fed. R. 
Civ. P. 26(e)(1)(A). 
Federal Rule of Civil Procedure 37(c)(1) provides that, if a party fails to “ provide 
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed 
to use that information or witness to supply evidence . . . at a trial, unless the failure was 
substantially justified or is harmless.” The rule “has been described as a self -executing, 
automatic sanction to provide a strong inducement for disclosure of material.” Hoffman v. 
Constr. Protective Serv s., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) ( internal quotation 
marks omitted). District courts have “particularly wide latitude” to issue sanctions under 
Rule 37(c). Yeti by Molly, Ltd. v. Deckers Outdoor Corp. , 259 F.3d 1101, 1106 (9th Cir. 
2001). 
 “[T]the burden is on the party facing sanctions to prove harmlessness.” Yeti by 
Molly, Ltd., 259 F.3d at 1107. A court may consider the following factors in determining 
whether a discovery violation is justified or harmless: “(1) prejudice or surprise to the party 
against whom the evidence is offered; (2) the ability of that party to cure the prejudice; (3) 

 
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the likelihood of disruption of the trial; and (4) bad faith or willfulness involved in not 
timely disclosing the evidence.” Lanard Toys Ltd. v. Novelty, Inc., 375 F. App’x 705, 713 
(9th Cir. 2010). 
III. Plaintiff’s Motions in Limine 
A. Motion in Limine re: Judicial Estoppel (Doc. 911) 
 Plaintiff moves to judicially estop Pima County from arguing or offering evidence 
to show that it would have and was prepared to retry Taylor in 2013. (Doc. 911.) Evidence 
concerning whether the Pima County Attorney was prepared to retry Taylor in 2013 is 
relevant to Plaintiff’s expungement claim, which this Court has dismissed. Because it is 
not clear that Pima County will seek to make the arguments or elicit the evidence at issue 
given this Court’s dismissal of Plaintiff’s expungement claim, the Cour t will deny 
Plaintiff’s Motion as moot , with leave for the parties to re -raise the issue at trial if 
necessary. 
B. Motion in Limine re: Executive Session Privilege (Doc. 916) 
 Plaintiff argues that evidence concerning an August 1, 2022 executive session of the 
Pima County Board of Supervisors is relevant to his expungement claim, and he moves to 
preclude Pima County from asserting that Arizona’s executive session privilege precludes 
admission of such evidence. (Doc. 916.) Because t he Court has dismissed Plaintiff’s 
expungement claim and the evidence at issue is irrelevant to the remaining claims in this 
case, the Court will deny Plaintiff’s Motion as moot. The Court may reconsider this ruling 
depending on its resolution of Plaintiff’s Memorandum re: Equitable Estoppel (Doc. 1112). 
C. Motion in Limine re: Prior Testimony (Doc. 942) 
 Plaintiff moves to preclude Defendants from introducing into evidence testimony 
from Taylor’s prior criminal proceedings. (Doc. 942.) Plaintiff argues that such testimony 
is hearsay and that Defendants cannot show the testimony qualifies for the hearsay 
exception of Federal Rule of Evidence 804(b)(1) because Taylor did not have an 
opportunity and similar motive to develop the testimony by cross -examination during the 
criminal trial. (Id.) Specifically, Plaintiff identifies evidence that he did not possess at the 

 
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time of his criminal trial and that he asserts would have been crucial to cross -examination 
of the witnesses at issue. ( Id. at 5-7.) Plaintiff further argues that testimony concerning 
his guilt or innocence, or whether the Pioneer Hotel fire was arson, is not relevant to the 
issues in this case. ( Id. at 7-8.) Finally, Plaintiff argues that the eyewitness testimony of 
Rodney Dingle is inadmissible because he was intoxicated when he observed Taylor inside 
the Pioneer Hotel on December 30, 1970. (Id. at 9.) 
 Both the City of Tucson and Pima County filed Responses in opposition. (Docs. 
1000, 1028.) Pima County confirms that it intends to read into evidence portions of or the 
entirety of sworn testimony from Taylor’s 1972 criminal trial , including testimony by 
deceased witnesses Rodney Dingle, David Johnson, Giles Scoggins, Cyrillis Holmes, 
Henry Gassaway, Rex Angeley, William Briamonte, Lynden Gilmore, and Robert Slagel. 
(Doc. 1028 at 1 -2 n.1.) 5 Defendants argue that the prior testimony of witnesses from 
Taylor’s 1972 trial is not hearsay because Defendants will offer it not to prove the truth of 
the matters asserted but to prove the knowledge, intent, and motive of the TPD officers 
who investigated and arrested Taylor and of the Pima County attorneys who prosecuted 
him and offered him a no -contest plea in 2013 . (Doc. 1000 at 3 -5; Doc. 1028 at 2 -3.) 
Defendants also argue th at the prior testimony is admissible under Federal Rule of 
Evidence 804(b)(1) because Taylor had an opportunity and similar motive to cross -
examine the witnesses during his criminal trial. (Doc. 1000 at 5-13; Doc. 1028 at 3-6.) In 
addition, Pima County a sserts that the prior testimony is admissible under the residual 
hearsay exception of Rule 807. (Doc. 1028 at 7.) Defendants argue that statements Taylor 
made to the trial witnesses are admissible as opposing party statements under Federal Rule 
of Evidence 801(d)(2). (Doc.1000 at 3; Doc. 1028 at 7 -8.) Pima County argues that the 
probative value of the prior testimony is high and outweighs any concerns of prejudice. 
(Doc. 1028 at 8.) Finally, Defendants argue that there is no evidence in the record showing 
 
5 Pima County indicates it intends to introduce live testimony by witnesses who testified 
in the 1972 trial and are believed to be alive, including Lewis Adams, Milan Murchek, 
David Smith, Douglas Scoopmire, Beryl Kohlman, Eugene Rossetti, and Patrick McGuire. 
(Id.) The hearsay arguments in Plaintiff’s Motion in Limine do not apply to this anticipated 
live testimony. 

 
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that Dingle was intoxicated when he saw Taylor in the Pioneer Hotel, and that Taylor could 
have, but failed to, question Dingle about this issue during the 1972 trial. (Doc. 1000 at 
13; Doc. 1028 at 8-10.) The City urges the Court to preclude Plaintiff from arguing at trial 
that Dingle was intoxicated or impaired. (Doc. 1000 at 13.) 
 To the extent Defendants intend to introduce prior testimony for purposes other than 
proving the truth of the matters asserted, the prior testimony is not hearsay. See Fed. R. 
Evid. 801(c)(2). Furthermore, the Court finds that the prior testimony of unavailable 
witnesses, even if hearsay, is admissible under Federal Rule of Evidence 804(b)(1). 
Deceased witnesses are unavailable for purposes of Rule 804. United States v. Duenas , 
691 F.3d 1070, 108 6 (9th Cir. 2012). It is undisputed that Taylor had the opportunity to 
cross-examine the witnesses at issue when they testified during his criminal tr ial. In 
addition, the Court finds that Taylor had a similar motive for cross -examination of the 
witnesses. A “similar motive” for purposes of Rule 804(b)(1) does not mean an “identical 
motive.” Id. at 1087 (internal quotation marks omitted). A party’s motive for cross -
examination is “similar” if the party had the same “fundamental objective” in questioning 
the witness. United States v. McFall, 558 F.3d 951, 963 (9th Cir. 2009). Plaintiff cites no 
authority for the proposition that a party did not have an opportunity and similar motive 
for cross-examination, for purposes of Rule 804(b)(1), merely because the party lacked 
certain evidence at the time of the cross-examination. Even assuming that this proposition 
is true as a matter of law, Plaintiff has not shown that the evidence he cites in his Motion 
was so critical to effective cross -examination of the trial witnesses that the witnesses’ 
testimony is rendered inadmissible under Rule 804(b)(1). Nor has Plaintiff shown that 
Dingle’s prior testimony is inadmissible under Rul e 804(b)(1) due to a potential 
intoxication issue that Taylor could have but did not explore through cross -examination 
during the 1972 trial. 
 Prior testimony from Taylor’s criminal proceedings has limited relevance , 
particularly given the Court’s dismissal of Plaintiff’s expungement claim. Taylor’s guilt 
or innocence, and whether the Pioneer Hotel fire was or was not arson, are not at issue in 

 
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the trial in this matter. Furthermore, evidence concerning Unklesbay and Acosta’s review 
of Taylor’s case in 2012 -2013 is largely irrelevant to Plaintiff’s remaining claims. 
However, the prior testimony of witnesses from Taylor’s 1972 criminal trial may be 
admissible to show the knowledge and intent of the City and County officials who 
investigated and prosecuted Taylor, and particular testimony —such as the testimony of 
Holmes, Robert, and Wallmark—has specific relevance to Plaintiff’s alleged constitutional 
violations. The Court notes that, given the extensive nature of the prior testimony and its 
limited relevance, Rule 403 concerns—including the presentation of cumulative evidence 
and wasting time —may outweigh the probative value of specific prior testimony. 
However, to the extent Plaintiff requests a blanket ruling that all prior te stimony is 
inadmissible, his Motion will be denied. The Court addresses the admissibility of 
statements Taylor made to trial witnesses in Section III(G), infra. 
D. Motion in Limine re: Former County Attorney Witnesses (Doc. 943) 
 Pima County disclosed Bill Dickinson, Bill Druke, Ronald Stolkin, and Steve Neely 
as former employees of the PCAO,6 who are expected to testify regarding their careers; 
their employment and responsibilitie s with the PCAO; their “knowledge of other 
prosecutors in the PCAO, including Bill Schafer, Rose Silver, David Dingeldine, Randy 
Stevens, Horton Weiss, and Carmine Brogna”; their “knowledge of PCAO policies and 
practices” during their employment, “includin g training, supervision, and prosecutorial 
decisions”; their “knowledge and understanding regarding the law at the time governing 
evidentiary disclosures and other prosecutorial functions”; and their “knowledge of or work 
on Taylor’s criminal prosecution.” (Doc. 1059 -3 at 56 -58.) In addition, each witness is 
“expected to testify that PCAO did not have a policy or practice of racial discrimination or 
unethical or unlawful prosecutions.” (Id.) 
 Plaintiff asks the Court to limit the testimony of Dickinson, Druke, and Stolkin, and 
to preclude or limit the testimony of Neely. (Doc. 943.) Plaintiff argues that Pima County 
should be precluded from eliciting testimony from these witnesses on any subject not 
 
6 Pima County’s disclosure states that Neely began working as a Deputy Pima County 
Attorney in 1969 and became the Pima County Attorney in 1976. (Doc. 1059-3 at 56-57.) 

 
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included in their disclosed anticipated t estimony, including Taylor’s guilt or innocence, a 
conspiracy between Pima County and the City of Tucson to violate Taylor’s constitutional 
rights, the adequacy of training that prosecutors received at the time Weiss was employed 
at the PCAO, a policy or p ractice of deliberate indifference to prosecutorial misconduct , 
and any knowledge or work done by the witnesses on Taylor’s criminal prosecution . (Id. 
at 2-3, 5.) Plaintiff further argues that testimony concerning any prosecutors other than 
Weiss and Silver—in addition to testimony concerning racial discrimination in the PCAO 
and a policy or practice, or lack thereof, of unethical or unlawful prosecutions —is 
irrelevant. (Id. at 3-4.) Plaintiff urges preclusion of any testimony concerning knowledge 
of Taylor’s case based on hearsay. (Id. at 5.) Finally, Plaintiff argues that, if Neely did not 
work for the PCAO before he was elected County Attorney in 1976, his testimony should 
be precluded in its entirety as irrelevant. (Id. at 6.) 
 In response, Pima County avers that it timely and adequately disclosed the testimony 
of Dickinson, Druke, Stolkin, and Neely, and that each is expected to provide highly 
relevant testimony concerning their personal knowledge of the PCAO’s training, policies, 
and practices pr ior to and during Taylor’s 1972 prosecution; their knowledge of 
prosecutors involved in Taylor’s criminal case, including Dingeldine, Brogna, Schafer, and 
Stevens; their personal knowledge of and work on Taylor’s criminal prosecution; and 
whether they were aware of the PCAO engaging in conspiracies to deprive criminal 
defendants of their constitutional rights. (Doc. 1030.) Pima County avers that it does not 
intend to elicit testimony from Dickinson, Stolkin, or Neely regarding whether they believe 
Taylor was guilty, as these witnesses did not work on Taylor’s prosecution and do not have 
personal knowledge of the evidence presented at Taylor’s 1972 trial ; however, Pima 
County avers that Druke assisted with Taylor’s prosecution and “should be permitted to 
testify as to his involvement in the prosecution and recall of the evidence .” (Id. at 2.)7 
Pima County further avers that it will elicit testimony that the PCAO did not have a policy 
 
7 Pima County indicates it does not at this time intend to elicit Druke’s opinion that Taylor 
is guilty but argues that the opinion may become relevant depending on the evidence 
presented at trial. (Id. at 2-3 n.1.) The Court will rule on this issue if it arises during trial. 

 
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or practice of racial discrimination only if Plaintiff elicits evidence that Weiss was a racist. 
(Id. at 4-5.) Finally, Pima County avers—consistent with its disclosure—that Neely began 
working for the PCAO in 1969. (Id. at 6.) 
 Plaintiff’s Motion will be par tially granted and partially denied. The Motion will 
be granted to the extent that the testimony of Dickinson, Druke, Stolkin, and Neely will be 
limited to matters within their personal knowledge and within the scope of Pima County’s 
disclosure. However, the Court does not construe Pima County’s disclosure as narrowly 
as does Plaintiff. The disclosure properly encompasses testimony concerning the existence 
of a conspiracy between Pima County and the City of Tucson to violate Taylor’s 
constitutional right s during his criminal prosecution ; training provided to PCAO 
prosecutors; and the existence of PCAO policies or practices, including any policy or 
practice of deliberate indifference to prosecutorial misconduct . Furthermore, the Court 
finds that the existence of policies or practices of unethical or unlawful prosecutions is 
relevant to the issue of whether Pima County was deliberately indifferent to a policy or 
practice of prosecutorial misconduct. Testimony concerning other PCAO prosecutors is 
relevant if Pima County presents evidence or testimony showing the prosecutors at issue 
were involved in Taylor’s criminal prosecution. Based on Pima County’s averments in its 
disclosure and Response, Neely began working for the PCAO prior to Taylor’s criminal 
prosecution, and therefore it appears he has personal knowledge of PCAO training, 
policies, and practices during the time of the criminal prosecution. Accordingly, 
Dickinson, Druke, Stolkin, and Neely may testify regarding the above matters to the extent 
they have personal knowledge. However, these witnesses may not offer opinions on legal 
issues or testify to inadmissible hearsay. For example, the witnesses may describe training 
provided to PCAO prosecutors at the time of Taylor’s criminal prosecution, but they may 
not opine that such training was adequate. Furthermore, i f Druke testifies that he was 
involved in Taylor’s criminal prosecution, he may testify to his involvement, but Pima 
County may not elicit hearsay from witnesses not involved in the criminal prosecution. 
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E. Motion in Limine re: Unklesbay and Acosta (Doc. 944) 
 Plaintiff moves to preclude former Deputy Pima County Attorneys Rick Unklesbay 
and Malena Acosta from testifying that admissible evidence against Taylor in 2013 
constituted proof beyond a reasonable doubt. (Doc. 944.) Because it is not clear that Pima 
County will seek to elicit the evidence at issue given this Court’s dismissal of Plaintiff’s 
expungement claim, the Cour t will deny Plaintiff’s Motion as moot , with leave for the 
parties to re-raise the issue at trial if necessary. 
F. Motion in Limine re: Unklesbay, Acosta and LaWall (Doc. 945) 
 Plaintiff moves to preclude Unklesbay and Acosta from testifying to the reasons 
why former Pima County Attorney Barbara LaWall offered Taylor a no -contest plea in 
2013. (Doc. 945.) Because it is not clear that Pima County will seek to elicit the evidence 
at issue given this Court’s dismissal of Plaintiff’s expungement claim, the Court will deny 
Plaintiff’s Motion as moot, with leave for the parties to re -raise the issue at trial if 
necessary. 
G. Motion in Limine re: Taylor’s Statements (Doc. 946) 
 Plaintiff moves to preclude the admission of statements he made when hotel 
employees saw him inside the hotel at the time of the fire , as well as statements he made 
to police officers. (Doc. 946.) Plaintiff argues that the prior testimony of hotel employees 
and police officers is hearsay that does not qualify for the prior testimony exception under 
Federal Rule of Evidence 804(b)(1) because, as a result of evidence concealed or unknown 
at the time of his criminal trial, Taylor lacked an opportunity and similar motive to develop 
the testimony through cross -examination. ( Id. at 4 -6.) Plaintiff further argues that 
statements he made to the police are inadmissible because he was unlawfully arrested a nd 
interrogated, and his statements were involuntary and obtained in violation of Miranda v. 
Arizona, 384 U.S. 436 (1966). (Id. at 6-12.) 
 Both the City of Tucson and Pima County filed Responses in opposition , asserting 
that Plaintiff’s arguments concerni ng the admissibility of prior testimony should be 
rejected for the reasons stated in Defendants’ Responses to Plaintiff’s Motion in Limine 

 
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re: Prior Testimony, and that this Court has already dismissed Plaintiff’s allegations 
concerning probable cause for his arrest and the lawfulness of his interrogation . (Docs. 
1001, 1036.) 
 To the extent Plaintiff argues that the prior testimony of unavailable hotel employee 
witnesses is inadmissible under Federal Rule of Evidence 804(b)(1), the Court rejects that 
argument for the reasons stated in the discussion of Plaintiff’s Motion in Limine re: Prior 
Testimony, Section III(C), supra. Statements that Plaintiff made to trial witnesses are 
admissible as opposing party statements under Federal Rule of Evidence 801(d)(2). 
Furthermore, Plaintiff has not shown that statements he made to police officers are 
inadmissible in this case due to Fifth Amendment violations. “The Fifth Amendment, 
made applicable to the States by the Fourteenth Amendment, requires that no person shall 
be compelled in any criminal case to be a witness against himself.” Chavez v. Martinez, 
538 U.S. 760, 766 (2003) (internal citation, quotation, and alteration marks omitted; 
emphasis in original). Because this is a civil case, rather than a criminal prosecution of 
Taylor, the admission of Plaintiff’s statements to the police in this case does not violate the 
Fifth Amendment, regardless of any voluntariness or Miranda issues. See id. at 766-73. 
Accordingly, the Court will deny Plaintiff’s Motion in Limine. 
H. Motion in Limine re: Bad Acts (Doc. 947) 
 Plaintiff moves to preclude Defendants from introducing any evidence of his 
conduct in prison and after his release , arguing that the evidence is irre levant, prejudicial, 
and inadmissible under Federal Rules of Evidence 401, 402, 403, 404, and 609. (Doc. 947 
at 1.) 
 Both the City of Tucson and Pima County filed Responses in opposition. (Docs. 
1004, 1037.) The City argues that this Court should defer ruling on the admissibility of 
Taylor’s prison or arrest records, or his 2018 felony conviction, until the time of trial. (Doc. 
1004 at 1-3.) The City argues that the admissibility of the records depends on what Taylor 
testifies to at trial. (Id. at 1-2.) The City similarly argues that this Court should wait until 
there is a testimonial record and context to balance the probative value and prejudice 

 
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associated with Taylor’s 2018 felony conviction. (Id. at 2-3.) Finally, the City argues that 
Taylor’s drug use is relevant to his claim for emotional distress damages, if Plaintiff is 
permitted to present evidence of such damages. (Id. at 3-4.) 
 Pima County argues that evidence of drug use and additional felonies, prison time, 
and disciplinary actions is relevant to Plaintiff’s claim for emotional distress damages, and 
that Plaintiff’s failure to provide any details regarding the prison and post -release acts, 
combined with his failure to provide any details concerning his emotional distress damages, 
prevents Pima County from being more specific as to what evidence of other acts it may 
seek to introduce at trial. (Doc. 1037.) Pima County also argues that Taylor’s recent felony 
conviction is admissible under Federal Rule of Evidence 609(a). ( Id. at 4 n.3.) Pima 
County urges the Court to deny Plaintiff’s Motion in Limine and “deal with these issues as 
they come up in the context of trial.” (Id. at 4.) 
 Evidence of a witness’s conviction for a crime punishable by imprisonment for more 
than one ye ar “must be admitted, subject to Rule 403, in a civil case” for purposes of 
attacking the witness’s character for truthfulness. Fed. R. Evid. 609(a)(1)(A). In addition, 
evidence of a witness’s conviction for any crime regardless of the punishment “must b e 
admitted if the court can readily determine that establishing the elements of the crime 
required proving—or the witness’s admitting—a dishonest act or false statement.” Fed. R. 
Evid. 609(a)(2). However, if more than 10 years have passed since the witness’s conviction 
or release from confinement for it, evidence of the conviction is admissible only if “its 
probative value, supported by specific facts and circumstances, substantially outweighs its 
prejudicial effect.” Fed. R. Evid. 609(b). The parties h ave not provided sufficient details 
for the Court to be able to determine the admissibility of Taylor’s 2018 felony conviction 
under Rules 403 and 609. Accordingly, the Court defers ruling on that issue until trial. 
 “Evidence of any other crime, wrong, o r act is not admissible to prove a person’s 
character in order to show that on a particular occasion the person acted in accordance with 
the character.” Fed. R. Evid. 404(b)(1). However, such evidence “may be admissible for 
another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, 

 
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identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). It appears that 
Defendants may potentially seek to introduce certain evidence—such as evidence of Taylor 
setting fires in prison—for the impermissible purpose of proving that Taylor is an arsonist. 
However, the parties have not provided sufficient information to allow the Court to 
determine whether other-act evidence may be admissible for a proper purpose at trial, an d 
the Court accordingly defers ruling on the issue. The Court will deny Plaintiff’s Motion to 
the extent it seeks a ruling in limine, with leave for the parties to raise the issues addressed 
in the Motion at trial. 
I. Motion in Limine re: Opinions of Dr. Tommy Tunson (Doc. 948) 
 Plaintiff moves to preclude the City of Tucson from introducing any evidence or 
testimony contesting the opinions of Plaintiff’s police practices expert, Dr. Tommy 
Tunson, on the grounds of non -disclosure. (Doc. 948 at 1.) Specifically, Plaintiff argues 
that the City should be precluded from presenting any evidence or witnesses concerning 
whether the City had racially discriminatory policies or practices at the time of Taylor’s 
arrest and prosecution. (Id. at 3.) 
 The City avers in response that it timely disclosed TPD and Tucson Fire Department 
(“TFD”) members as witnesses who would testify regarding their recollection of events 
prior to, during, and after the Pioneer Hotel fire. (Doc. 1012 at 2-3.) The City further avers 
that it adopted Plaintiff’s disclosed witnesses, which broadly included all past or present 
employees of Defendants with relevant knowledge. ( Id. at 3 -5.) The City argues that 
former TPD officers with personal knowledge regarding the alleged existence of racially 
discriminatory policies or practices can, under Federal Rules of Eviden ce 602 and 701, 
provide lay testimony contradicting Tunson’s opinions. (Id. at 5.) 
 To the extent Plaintiff contends in his Motion that the City can rebut Tunson’s 
opinions only through expert rather than lay testimony, the Court rejects that propositi on. 
The Court notes that all parties appear to have had issues with untimely and insufficiently 
detailed disclosures in this case. Although the City’s disclosure of TPD and TFD officers 
could certainly have been more detailed, the Court finds, given the entirety of the record 

 
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and the parties’ knowledge of one another’s evidence and legal positions, that the City 
adequately disclosed TPD and TFD employees to testify regarding their personal 
knowledge of City polic ies and practices at the time of Taylor’s a rrest and prosecution. 
Accordingly, Plaintiff’s Motion will be denied. 
IV. Defendants’ Motions in Limine 
A. City of Tucson’s Motion in Limine No. 1 re: Untimely Disclosed 
Witnesses and Documents (Doc. 938) 
 The City of Tucson asks the Court to preclude Plaintiff from introducing specified 
witnesses and exhibits that the City argues were not timely disclosed during discovery , 
including the follo wing witnesses: Lindsay Herf; Lesley Hoyt -Croft; Jeanette Mare; 
Tamara Mulembo; Jan Lesher; Mavis J. Donnelly, M.D.; Kathy Lynn Higgins; Nina 
Trasoff; Charlene Smith; and Randy Downer. (Doc. 938.) 
 In response, Plaintiff avers that all parties have made extensive disclosures since the 
close of discovery, and that Plaintiff timely disclosed documents as they were obtained. 
(Doc. 1005.) Plaintiff further argues that, even assuming Plaintiff’s complained -of 
disclosures were untimely, there is no prejudice, and the City could have filed motions 
years ago instead of waiting until the eve of trial for purposes of gaining a tactical 
advantage. (Id. at 6-7.) 
 Rule 37(c)(1) provides that, if a party fails to “identify a witness as required by Rule 
26(a) or (e), the party is not allowed to use that information or witness to supply evidence 
. . . at a trial, unless the failure was substantially justified or is harmless.” Although the 
Court recognizes that it is Plaintiff’s burden to prove harmlessness, Yeti by Molly, Ltd., 259 
F.3d at 1107, the Court notes that the City’s Motion in Limine does not allege any prejudice 
or harm resulting from the timing of Plaintiff’s disclo sures. Furthermore, Plaintiff cites 
authority supporting his position that his disclosures, even if untimely, may be considered 
harmless where Defendants had months to review the disclosed information prior to trial . 
See Alliance Commc’ns Techs., Inc. v. AT&T Corp., 245 F. App’x 583, 585 (9th Cir. 2007) 
(district court did not abuse discretion in finding harmlessness where opposing party had 

 
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many months to review the challenged information before trial). To the extent other 
Motions in Limine raise more s pecific arguments concerning the effect of untimely 
disclosures of particular witnesses, the Court addresses those arguments in the context of 
the specific Motions in which they are raised. However, the City’s Motion will be denied 
to the extent it seeks a blanket ruling precluding all witnesses and evidence disclosed by 
Plaintiff after the close of discovery. 
B. City of Tucson’s Motion in Limine No. 2 re: Robert Jackson’s and 
Albert Jackson’s Statements and Affidavits (Doc. 939) 
 The City of Tucson moves to preclude Plaintiff from introducing, referring to, 
arguing, or eliciting testimony concerning the contents of out -of-court statements and 
affidavits by Robert and Albert Jackson for the purpose of proving the truth of such 
statements. (Doc. 939.) The City argues that such statements are inadmissible hearsay that 
do not fall under any hearsay exception. (Id. at 2-8.) The City argues that Robert Jackson’s 
out-of-court recantation does not qualify as a statement against interest under Federal Rule 
of Evidence 804(b)(3)(A), because it was superseded by Robert’s May 18, 1972 sworn 
testimony given at a hearing during which Robert was offered immunity from perjury 
charges. (Id. at 3.) The City further argues that Robert’s statement is not an opposing party 
statement under Federal Rule of Evidence 801(d)(2), and that Rule 801(d)(1) is 
inapplicable because Robert is deceased and will not be subject to cross -examination at 
trial. (Id. at 3-4.) Finally, the City argues that Robert’s statement is not admissible under 
the residual exception to the rule against hearsay, because the statement is not trustworthy 
and there is more probative evidence available. (Id. at 4-5.) The City similarly argues that 
Albert’s out-of-court statements are not opposing party statements under Rule 801(d)(2) 
and are inadmissible under the residual exception. ( Id. at 6-8.) The City further argues 
that Albert’s statements contain hearsay within hearsay. (Id. at 6.) 
 Plaintiff argues in response that the statements of Robert and Albert Jackson are 
admissible under numerous hearsay exceptions. (Doc. 1018.) Specifically, Plaintiff argues 
that Robert’s statement is admissible under Federal Rules of Evide nce 801(d)(1), 803(3), 

 
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and 804(b)(3). (Id. at 2-3.) Plaintiff argues that Albert’s 1972 affidavit is admissible as an 
ancient document under Rule 803(16), that his 2008 affidavit and interview are admissible 
under Rule 807, and that, to the extent Albert discussed statements made by Robert, 
Robert’s statements to Albert are admissible under Rules 803(3) and 804(b)(3). (Id. at 4-
5.) Plaintiff further argues that, to the extent Robert and Albert discussed statements made 
by Horton Weiss, Rex Angeley, and Lawrence Hust, the statements of those individuals 
are not hearsay pursuant to Rule 801(d)(2). ( Id. at 3-4.) Finally, Plaintiff argues that his 
experts, including Andrew Pacheco, relied on Albert ’s affidavit, rendering the affidavit 
admissible under Rule 703. (Id. at 6.) 
 An unavailable witness’s out -of-court statement is admissible if “a reasonable 
person in the declarant’s position would have made” the statement “only if the person 
believed it to be true because, when made, it was so contrary to the declarant’s proprietary 
or pecuniary interest or had so great a tendency to . . . to expose the declarant to civil or 
criminal liability.” Fed. R. Evid. 804(b)(3)(A). 8 In ruling on the parties’ summary 
judgment motions, the Court determined that R obert’s recantation may be admissible as a 
statement against interest under Federal Rule of Evidence 804(b)(3)(A) because it exposed 
Robert to criminal liability for perjury. (Doc. 869 at 44.) The Court noted that, over the 
course of the recantation, Robert expressed concern numerous times regarding his criminal 
exposure for perjury. (Id. at 44 n.28.) Although the City notes that Robert later affirmed 
his trial testimony despite being offered immunity from perjury charges, the City cites no 
binding authority supporting the proposition that Robert’s subsequent affirmation of his 
trial testimony affects the admissibility of his recantation under Rule 804(b)(3)(A). 
 Furthermore, it appears that Robert’s prior testimony will be offered pursuant to the 
prior testimon y hearsay exception of Rule 804(b)(1) , and w hen a hearsay statement is 
admitted into evidence, “the declarant’s credibility may be attacked, and then supported, 
by any evidence that would be admissible for those purposes if the declarant had testified 
 
8 If “offered in a criminal case” as a statement “that tends to expose the declarant to criminal 
liability,” then the statement against interest must also be “supported by corroborating 
circumstances that clearly indicate its trustworthiness.” Fed. R. Evid. 804(b)(3)(B). 

 
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as a witness.” Fed. R. Evid. 806. Rule 801(d)( 1) provides for the admissibility of a 
declarant-witness’s prior statements under certain circumstances. Although the rule 
provides that the declarant must testify and be subject to cross-examination about the prior 
statement, Rule 613(b) provides that “[e]xtrinsic evidence of a witness’s prior inconsistent 
statement is admissible . . . if the witness is given an opportunity to explain or deny the 
statement and an adverse party is given an opportunity to examine the witness about it, or 
if justice so requi res.” Fed. R. Evid. 613(b). If Robert’s prior inculpatory testimony is 
admitted pursuant to Rul e 804(b)(1), then justice may require the admission of extrinsic 
evidence of his recantation under Rule 613(b).9 
 The City’s argument concerning whether Robert’s recantation is an opposing party 
statement is misplaced. Robert’s recantation is not admissible as an opposing party 
statement. As discussed above, it is admissible under the statement -against-interest 
hearsay exception of Rule 804(b)(3)(A), and potentially also under Rule 613(b). However, 
to the extent Robert’s recantation contains an additional level of out -of-court statements 
made to Robert by TPD officers, the officers’ statements are admissible as opposing party 
statements under Rule 801(d)(2). 
 Under the ancient documents hearsay exception of Federal Rule of Evidence 
803(16), “[a] statement in a document that was prepared before January 1, 1998, and whose 
authenticity is established,” is not excluded by the rule against hearsay, regardless of 
whether the declarant is available as a witness. To authenticate a document as ancient, the 
proponent must present evidence that the document “is in a condition that creates no 
suspicion about its authenticity”; “was in a place where, if authentic, it wou ld likely be”; 
and “is at least 20 years old when offered.” Fed. R. Evid. 901(b)(8). If Plaintiff 
authenticates Albert’s 1972 affidavit as an ancient document under Rule 901(b)(8), then 
the statements in the affidavit would be admissible under Rule 803(16). 
 The Court also finds that Albert’s 1972 affidavit, as well as his 2008 interview and 
 
9 The Court rejects Plaintiff’s assertion that Robert’s recantation is admissible under Rule 
803(3), as it is not a statement of Robert’s then-existing state of mind or emotional, sensory, 
or physical condition. 

 
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affidavit, are admissible under the residual hearsay exception. (See Doc. 869 at 44.) The 
residual hearsay exception set forth in Federal Rule of Evidence 807 provides that, even if 
a hearsay statement is not admissible under an exception set forth in Rules 803 or 804, it 
is nevertheless admissible if: 
(1) the statement is supported by sufficient guarantees of trustworthiness —after 
considering the totality of circumstances under which it was made and evidence, if 
any, corroborating the statement; and 
(2) it is more probative on the point for which it is offered than any other evidence 
that the proponent can obtain through reasonable efforts. 
Fed. R. Evid. 807(a). Here, Albert is deceased, and his prior statements are more probative 
than any other evidence that Plaintiff can obtain through reasonable efforts. Albert had no 
obvious motive to lie regarding the matters in his statements and, though some details vary, 
his statements are generally supported by other evidence, including Robert’s recantation 
and the testimony of Charlene Smith and Kathy Higgins. To the extent Albert’s prior 
statements include an additional layer of out-of-court statements made by Robert, Robert’s 
statements to Albert are admissible under the statement-against-interest hearsay exception, 
as discussed above. The City of Tucson’s Motion will be denied. 
C. City of Tucson’s Motion in Limine No. 3 re: Rubin Salter (Doc. 940) 
 Plaintiff disclosed Rubin Salter, an African American criminal defense attorney who 
worked with the PCAO and Horton Weiss in the late 1960s, as a witness who will testify 
that TPD “had policies of racial discrimination against Blacks.” (Doc. 932 at 288.) In an 
affidavit filed with the parties’ summary judgment briefs, Salter stated that he had frequent 
contact with TPD officers during his work as a prosecutor and that it is his “opinion” and 
“recollection” that TPD “engaged in pervasive racially discriminatory law enforcemen t 
practices.” (Doc. 372-2 at 3.) 
 The City of Tucson moves to preclude Plaintiff from calling Salter as a fact witness 
to testify regarding TPD policies in the 1970s. (Doc. 940.) The City argues that Salter 
lacks personal knowledge under Federal Rule of Evidence 602 because he never worked 
for the TPD and has no non-speculative knowledge regarding TPD policies. ( Id. at 2-3.) 
The City further argues that, even if admissible, Salter’s testimony should be precluded 

 
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under Federal Rule of Evidence 403 because it has limited probative value, would unfairly 
prejudice the City, and would only confuse and mislead the jury. (Id. at 3-4.) Plaintiff 
argues in response that Salter’s testimony is based on his personal experience with the City 
and TPD, that the testimony is relevant and probative, and that the City’s arguments go to 
the weight rather than the admissibility of the testimony. (Doc. 1007.) 
 As a fact witness, Salter may testify to opinions regarding TPD policies only if those 
opinions are “rationally based” on his “perception.” Fed. R. Evid. 701(a). Furthermore, 
Salter may testify regarding TPD policies and practices only if Plaintiff intro duces 
evidence sufficient to show he has personal knowledge of those policies and practices. 
Based on the current record, it does not appear that Salter has such personal knowledge. 
The Court will grant the City’s Motion in Limine but will also grant Plaintiff leave to seek 
reconsideration of this ruling at trial if Plaintiff can offer evidence sufficient to show Salter 
has personal knowledge of TPD policies and practices. 
D. City of Tucson’s Motion in Limine No. 4 re: Andrew Pacheco (Doc. 968) 
 The City of Tucson moves to preclude Plaintiff from calling Andrew Pacheco as an 
expert witness. (Doc. 968.) The City argues that this Court has already found that all of 
Pacheco’s opinions relating to the City are i nadmissible. ( Id. at 4-6.) The City further 
argues that Pacheco’s rebuttal expert report should be excluded as untimely and improper 
under Federal Rule of Civil Procedure 26. ( Id. at 6.) The City argues, without prejudice 
to its other arguments, that P acheco was not disclosed to testify regarding Count One of 
the operative Third Amended Complaint. (Id. at 6.) Finally, the City argues that Pacheco’s 
testimony is inadmissible under Federal Rule of Evidence 403 because any probative value 
of the testimony is outweighed by the possibility of unfair prejudice and confusing the jury. 
(Id. at 7.) 
 In response, Plaintiff argues that this Court’s prior Order regarding the admissibility 
of Pacheco’s opinions is controlling, and that the City’s Motion in Limine is improper 
because it does not address any specific evidence that this Court did not already address in 
the prior Order. (Doc. 1022.) Plaintiff further argues that he disclosed Pacheco’s second 

 
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report less than two months after receiving disclosure from Pima County regarding 
Unklesbay’s testimony, and the second report responds to that disclosure and therefore 
constitutes a proper and timely supplement to Pacheco’s initial report. (Id. at 3-4.) 
 This Court previously found that the opinions set forth in Pacheco’s expert report 
are inadmissible, except for the following “potentially admissible opinions”: 
(1) that any prosecutor’s office with which [Pacheco] is familiar would 
immediately note and act upon a published appellate opinion that criticized 
a prosecutor by name; (2) that it is improper for a prosecutor to require a 
defendant to plead no contest when the prosecutor knows guilt cannot be 
proven beyond a reasonable doubt; (3) that LaWall improperly instructed 
Unklesbay regarding the scope of his rev iew of Taylor’s Petition for Post -
Conviction Relief; and (4) that any experienced prosecutor would understand 
that an exonerated defendant poses a greater risk of financial exposure to the 
prosecutor’s office than a convicted felon. 
(Doc. 567 at 8 (interna l record citations omitted).) Plaintiff affirms in the Joint Proposed 
Pretrial Order that Pacheco’s testimony will conform to the Court’s prior ruling. (Doc. 932 
at 289.) To the extent the City’s Motion in Limine is seeking reconsideration of the Court’s 
prior ruling, it is untimely. See LRCiv 7.2(g)(2). To the extent the City’s Motion in Limine 
is seeking application of the Court’s prior ruling, it is unnecessary. The Court’s prior Order 
(Doc. 567) is controlling, subject to the limitations on relevance that arise from this Court’s 
subsequent dismissal of Plaintiff’s expungement claim. 
E. City of Tucson’s Motion in Limine No. 5 re: Dr. Thomas Tunson (Doc. 
957) 
 The City of Tucson asks the Court to preclude Dr. Thomas Tu nson from testifying 
as an expert witness. (Doc. 957.) The City argues that Dr. Tunson bases his opinions on 
speculation and subjective beliefs, that he does little more than summarize Plaintiff’s 
opinions, that he improperly makes credibility determinat ions and impermissibly offers 
legal conclusions, and that he reviewed only evidence cherry-picked by Plaintiff’s counsel. 
(Id. at 4-5.) The City further argues that Dr. Tunson is not qualified to opine on issues 
involving fire science, that he offers opinions on topics this Court has foreclosed, and that 
his reports include fundamental factual errors. ( Id. at 5.) The City also argues that Dr. 
Tunson’s rebuttal expert report is improper under Federal Rule of Civil Procedure 26 and 

 
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was not timely disclosed. (Id. at 6.)10 Finally, the City argues that any probative value of 
Dr. Tunson’s testimony is outweighed by a danger of unfair prejudice and confusing the 
jury. (Id.) 
 Plaintiff argues in response that Dr. Tunson is qualified to provide expert testimony 
concerning police and prosecution standards and practices, that such testimony will be 
helpful to the jury, and that the City fails to show that the testimony would be unfairly 
prejudicial. (Doc. 1008.) Plaintiff avers that he does not intend to elicit testimony from 
Dr. Tunson concerning the credibility of witnesses or the resolution of evidentiary 
conflicts, nor will Dr. Tunson instruct the jury on the law or provide opinions that invade 
the province of the jury. (Id. at 7-8.) Plaintiff avers that Dr. Tunson will instead testify as 
to police and prosecution practices, which practices were violated in Taylor’s criminal 
case, and the importance such violations have in the above-captioned case. (Id. at 6-8.) 
 Dr. Tunson has 32 years of experience in law enforcement, including 10 years of 
experience as a police chief. (Doc. 343 -14 at 1.) He also has experience as a professor of 
criminal justice. ( Id.) The Court finds that Dr. Tunson may permissibly provide expert 
testimony concerning police and prosecu tion standards and practices , and whether those 
standards and practices were followed in Taylor’s case. However, Dr. Tunson may not 
opine on the credibility of witnesses, instruct the jury on the law, or offer opinions on 
ultimate legal issues, nor may he opine on fire science. 
F. City of Tucson’s Motion in Limine No. 6 re: Sherry Van Camp (Doc. 
941) 
 In the parties’ Joint Proposed Pretrial Order, Plaintiff list s Sherry Van Camp as an 
employee of the law firm representing Plaintiff in this action, who will testify as a fact 
witness regarding a conversation she had with now-deceased Judge Michael Brown 
regarding Taylor’s criminal prosecution and Horton Weiss. (Doc. 932 at 290.) Plaintiff 
also listed as an exhibit an affidavit by Van Camp. (Id. at 587.) In the affidavit, Van Camp 
avers that on March 4, 2016, she spoke to Judge Brown, who was a criminal defense lawyer 
 
10 The rebuttal report simply reiterates Dr. Tunson’s initial opinions and states that he has 
no rebuttal opinions. (Doc. 957-2 at 20-21.) 

 
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around the time of Taylor’s arrest and criminal trial, who was later appointed to the Pima 
County Superior Court, and who passed away in August 2018. (Doc. 941 -2 at 4.) Van 
Camp avers that Judge Brown recalled an incident during which We iss used a racial slur, 
and a second incident during which a different deputy county attorney used the same racial 
slur. (Id. at 5.) 
 The City of Tucson moves to preclude Van Camp from testifying at trial under 
Federal Rules of Evidence 403, 602, 701, 802, and 805, arguing that she has no personal 
knowledge of the matters in this case and that her proffered testimony is based entirely on 
hearsay and speculation. (Doc. 941.) In response, Plaintiff argues that the Court should 
defer ruling on the admissibility of Van Camp’s testimony, because the testimony may be 
admissible for purposes of impeachment if Unklesbay or Acosta testify that they were not 
aware of Weiss’s racism . (Doc. 1009.) Plaintiff does not dispute that Van Camp’s 
testimony is inadmissible for purposes of proving the truth of Judge Brown’s statements. 
(See id.) In response to a separate Motion in Limine filed by Pima County, Plaintiff avers 
that he does not intend to call Van Camp as a witness “unless necessary to establish the 
reliability of Judge Brown’s interview under Rule 807.” (Doc. 1029 at 5 n.1.) 
 The Court will grant the City of Tucson’s Motion in Limine to the extent that the 
Court will preclude Plaintiff from calling Van Camp to testify for purposes of proving the 
truth of statements that Judge Brown made to Van Camp, as such testimony is inadmissible 
hearsay. Given the Court’s dismissal of Plaintiff’s expungement claim and the resulting 
limitations on the relevance of the testimony of Unklesbay and Acosta, Van Camp’s 
testimony does not appear to be admissible for purposes of impeaching Unklesbay and 
Acosta. The Court reserves ruling on whether Van Camp may permissibly testify for 
another purpose, as it is not clear whether Plaintiff will call her for another purpose. 
G. City of Tucson’s Motion in Limine No. 8 re: David Smith, 60 Minutes 
(Doc. 970) 
 In the Joint Proposed Pretrial Order, Plaintiff lists David Smith as a witness who 
will testify “regarding any knowledge relevant to the Taylor prosecution,” as well as 

 
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“statements he made” to the media and “his knowledge of the matters discussed in the 
interviews conducted by and the programs aired by “60 Minutes”/Court TV and/or CBS.” 
(Doc. 932 at 293 -94.) Plaintiff also indicates he may seek to utilize the media programs 
themselves pursuant to the “previous statements” provisions of Federal Rule of Civil 
Procedure 26(b)(3)(C). (Id. at 294.) Plaintiff first disclosed Smith as a witness in his Initial 
Disclosure Statement on June 5, 2020, stating that he was a TPD officer who spok e to 
Taylor shortly after the Pioneer Hotel fire and who “will testify regarding any k nowledge 
relevant to the Taylor prosecution.” (Doc. 971 -2 at 9.) On July 27, 2021, Plaintiff 
supplemented his disclosure of Smith’s anticipated testimony to include “Smith’s 
statements made in media interviews” and “his knowledge of the matters discussed” in the 
media interviews and programs. (Doc. 958-4 at 9-10.) 
 The City of Tucson moves to limit Smith’s testimony to his personal involvement 
in the criminal investigation of Taylor and his personal knowledge of TPD policies and 
practices, and to preclud e Plaintiff from eliciting testimony about, or referring to, 
comments made by Smith or other individuals to 60 Minutes, Court TV, or any other media 
program or station. (Doc. 970 at 1 -4.) The City also moves to preclude Plaintiff from 
using newspaper art icles or clippings at trial. ( Id. at 1, 4 -9.) The City argues that the 
provisions of Rule 26(b)(3)(C) are inapplicable to determining the admissibility of 
statements at trial. (Doc. 970 at 3.) The City further argues that Smith’s statements in 
media interviews are hearsay and do not constitute opposing party statements under Federal 
Rule of Evidence 801(d)(2) because Smith was not a City employee when he made the 
statements, Defendants did not authorize him to make the statement s, and Defendants did 
not adopt or believe the statements to be true. (Id. at 3-4.) The City further argues that the 
media statements of Smith contain double hearsay, lack foundation, and are inadmissible 
under Federal Rule of Evidence 403. ( Id. at 4.) The City also argues that the 60 Minutes 
and Court TV programs, and other media publications, are hearsay, contain double hearsay, 
are fraught with speculation, discuss issues the Court has already foreclosed, and are 
inadmissible under Rule 403. (Id. at 4-9.) 

 
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 In response, Plaintiff argues that Smith should be permitted to testify as to his 
personal employment and experiences while working for TPD, that he is also qualified to 
offer expert opinions concerning the investigation into the Pioneer Hotel fir e, and that 
Plaintiff timely disclosed Smith’s expert opinions pursuant to Federal Rule of Civil 
Procedure 26(a)(2)(C). (Doc. 1045 at 2-3.) With respect to the 60 Minutes segment aired 
in 2013, Plaintiff argues that questions to and responses by LaWall a re admissible under 
Federal Rule of Evidence 801(d)(2), and that the rest of the segment is admissible to show 
its effect on Pima County Attorney Laura Conover and Deputy County Attorney Jack Chin, 
and on Unklesbay and Acosta if it is revealed at trial that they reviewed the segment during 
their review of Taylor’s 2012 -2013 post-conviction proceedings . ( Id. at 3-4.) Plaintiff 
urges the Court to defer ruling on the admissibility of newspaper articles, contending that 
“[i]t is too early to determine whether these exhibits will be admissible for a proper purpose 
at trial.” ( Id. at 4.) Plaintiff argues that the evidence at issue is not unfairly prejudicial, 
and its probative value is not substantially outweighed by Rule 403 concerns. (Id. at 4-5.) 
 As an in itial matter, the Court agrees with the City that Federal Rule of Civil 
Procedure 26(b)(3)(C) does not govern the admissibility of statements at trial. The Court 
also agrees that Smith’s statements to the media do not qualify as non-hearsay opposing 
party statements because it appears that Smith was no longer employed by TPD when he 
made the statements, and Defendants did not authorize him to make the statements, nor did 
Defendants manifest that they adopted or believed the statements to be true. See Fed. R. 
Evid. 801(d)(2). The Court reserves ruling on the admissibility of Smith’s statements to 
the media under Federal Rules of Evidence 613(b) , 801(d)(1)(B), or any hearsay 
exceptions. Smith may testify as a fact witness to matters within his personal knowledge. 
See Fed. R. Evid. 602. Plaintiff has not shown that he timely disclosed Smith as a non -
retained expert witness under Federal Rule of Civil Procedure 26(a)(2)(C), nor has Plaintiff 
shown that the disclosure violation was substantially justified or harmless. Accordingly, 
Plaintiff will be precluded pursuant to Federal Rule of Civil Procedure 37(c)(1) from 
eliciting expert testimony from Smith. 

 
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 With respect to media segments an d newspaper articles, the Court agrees that 
statements made to 60 Minutes by LaWall are non -hearsay opposing party statements 
under Rule 801(d)(2), as LaWall was authorized to make statements on the subject and 
made the statements within the scope of her e mployment as the Pima County Attorney. 
Other portions of the 60 Minutes segment are hearsay if offered for purposes of proving 
the truth of the matters asserted therein. The Court reserves ruling on whether any portions 
of the 60 Minutes segment, and any portions of other media publications and newspaper 
articles, may be admissible for other purposes or under any hearsay exceptions, but notes 
that there are significant Rule 403 concerns and the probative value of the evidence is 
limited, particularly given the Court’s dismissal of Plaintiff’s expungement claim. 
H. City of Tucson’s Motion in Limine No. 9 re: Cyrillis Holmes’ 2012 
Deposition Testimony (Doc. 951) 
 The City moves to preclude Plaintiff from introducing Cyrillis Holmes’ November 
1, 2012 deposition testimony, arguing that the testimony is inadmissible under Federal Rule 
of Evidence 804(b)(1) because neither the City nor Pima County was a party to Taylor ’s 
2012-2013 criminal proceedings and neither had an opportunity to cross-examine Holmes 
during the 2012 deposition. (Doc. 951.) 
 In response, Plaintiff argues that Holmes’s statements during the 2012 deposition 
testimony concerning “blacks” starting fire s are not hearsay because Plaintiff will not be 
introducing the statements to prove the truth of the matter s asserted and, in fact, Plaintiff 
disagrees with Holmes’s racist beliefs and asserts that his statements are not true. (Doc. 
1042 at 2 -3.) Plaintif f argues that Holmes’s deposition testimony will be offered to 
establish what Holmes said and its effect on Unklesbay and Acosta’s review of Taylor’s 
2012-2013 Petition for Post-Conviction Relief. (Id.) Plaintiff also argues that his experts 
rely on Holmes’s testimony, creating an independent basis for admission under Rule 703. 
(Id. at 3-4.) Plaintiff further argues that many of the statements made by Holmes during 
his deposition qualify as statements against interest under Federal Rule of Evidence 804(3) 
because a reasonable person in 2012 would know that admitting to racist beliefs, admitting 

 
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to using a pocket knife to measure char depth, and claiming to be able to accurately 
determine depth to 1/32 of an inch without a measuring device “would subject him to 
professional ridicule and invalidate his opinions.” ( Id. at 5-6.) Finally, Plaintiff argues 
that the deposition testimony is admissible under Federal Rule of Civil Procedure 32 
because the City is not prejudiced by its introduction. (Id. at 4-6.) 
 Holmes’s statements during the 2012 deposition concerning his racially based 
profiling conclusions are non-hearsay because Plaintiff is not seeking to introduce them to 
prove the truth of the matters asserted but, rather, to show that Holmes made the statements 
and to show the effect of the statements on Unklesbay and Acosta’s review of Taylor’s 
2012-2013 Petition for Post -Conviction Relief. However, it appears that Plaintiff will 
likely seek to introduce other statements made by Holmes during the deposition for 
purposes of proving the truth of the matters asserted. For example, Holmes testified that 
he told his racially based profiling conclusions to City of Tucson officials during his 
investigation of the Pioneer Hotel fire, and it appears likely that Plaintiff will seek to 
introduce this statement for purposes of proving its truth. The City of Tucson was not a 
party to Taylor’s 2012 -2013 post -conviction proceedings, was not present at Holmes’s 
2012 deposition, and did not have an opportunity to cross -examine Holmes during the 
deposition. Accordingly, Holmes’s statements during the deposition do not qualify under 
the former testimony exception to the rule against hearsay. See Fed. R. Evid. 804(b)(1). 
However, the Court finds that the statements are admissible under the residual hearsay 
exception of Rule 807. Holmes made the statements under oath, with no motive to lie 
concerning what he told City of Tucson officials. Holmes is now de ceased, and his 
statements on the issue are more probative than any other evidence that Plaintiff can obtain 
through reasonable efforts. The City’s Motion will be denied. 
I. City of Tucson’s Motion in Limine No. 10 re: Charlene Smith (Doc. 952) 
 Discovery in this case closed on October 1, 2021. (Doc. 248.) 11 On February 26, 
2024, Plaintiff disclosed Charlene Smith as a witness, along with a declaration in which 
 
11 The Court thereafter reopened discovery several times, but only for limited purposes not 
relevant to the City of Tucson’s Motion in Limine No. 10 re: Charlene Smith. 

 
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Smith states that she is the sister of Robert and Albert Jackson, and that both Robert and 
Albert told her that Robert provided false testimony against Taylor at his criminal trial 
because of pressure from the police. (Doc. 952-2 at 2-8.) 
 The City of Tucson moves to preclude Plaintiff from calling Smith as a witness, 
arguing that her proffered testimony was not timely disclosed ; that she lacks personal 
knowledge and foundation ; that her testimony is based on hearsay, speculation, and 
inadmissible opinion; and that her testimony is contradicted by credible and admissible 
evidence. (Doc. 952.) The City also argues that Smith’s testimony should be preclu ded 
under Federal Rule of Evidence 403 because it is unfairly prejudicial and will serve only 
to confuse and mislead the jury. (Id. at 5.) 
 Plaintiff urges the Court to deny the City of Tucson’s Motion in Limine on several 
grounds: (1) the City fails to s pecify which portions of the Smith declaration it claims are 
inadmissible; (2) Plaintiff timely disclosed the Smith declaration one day after receiving it; 
(3) Smith has personal knowledge and her testimony is either non-hearsay or falls under a 
hearsay exception; and (4) even if the disclosure of Smith’s testimony was untimely, the 
timing of the disclosure was harmless because the City has had nearly two months to review 
the testimony. (Doc. 1014.) Plaintiff argues that Robert’s statement to Smith that he 
provided false inculpatory testimony at Taylor’s criminal trial is admissible under Federal 
Rule of Evidence 804(b)(3) as a statement against interest. ( Id. at 5.) Plaintiff further 
argues that Albert’s statements to Smith are admissible under the res idual hearsay 
exception of Rule 807. (Id. at 5-6.) 
 The Court finds that Plaintiff has shown the timing of his disclosure of Smith’s 
testimony is substantially justified or harmless pursuant to Federal Rule of Civil Procedure 
37(c)(1) because Plaintiff di sclosed the testimony promptly after receiving it, and 
Defendants had months to review the testimony before trial. Smith will be limited to 
testifying to matters within her personal knowledge, but statements made to her by Robert 
are admissible under the statement-against-interest hearsay exception and statements made 
to her by Albert are admissible under the residual hearsay exception, for the reasons 

 
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addressed in Section IV( B), supra. Smith’s testimony is probative, as it corroborates 
Robert’s recantation and other evidence, including Albert’s statements, concerning that 
recantation. The City has not shown that Rule 403 concerns outweigh the probative value 
of the testimony. The City’s Motion will be granted to the extent it seeks to limit Smith’s 
testimony to matters within her personal knowledge but otherwise denied. 
J. City of Tucson’s Motion in Limine No. 11 re: Claus Bergman (Doc. 960) 
 The City of Tucson moves to limit the testimo ny of Claus Bergman to relevant 
matters within his personal knowledge; to preclude Plaintiff from eliciting or referring to 
Bergman’s or other individual’s comments to media programs or stations; to preclude 
Plaintiff from using any media programs; and to preclude Plaintiff from asserting at trial 
any belated new claim regarding Defendants allegedly prohibiting Bergman from testifying 
truthfully at Taylor’s criminal trial. (Doc. 960.) Specifically, the City argues that Bergman 
should be precluded from testifying to his personal opinions about the investigation of the 
Pioneer Hotel fire, whether the fire was arson, and whether Taylor is guilt y or innocent. 
(Id. at 2 -3.) The City also argues that Bergman’s statements to media programs lack 
foundation and a re hearsay, that the programs themselves are hearsay and fraught with 
speculation, and that the media programs and newspaper articles are inadmissible under 
Rule 403. (Id. at 4-8.) Finally, the City argues that, for the same reasons this Court ruled 
that Plaintiff cannot assert a new claim that Defendants failed to disclose exculpatory 
testimony from Bergman, Plaintiff should also be precluded from asserting that Defendants 
prohibited Bergman from providing truthful testimony. (Id. at 9-10.) 
 In response , Plaintiff contends that the City fails to specify which portions of 
Bergman’s testimony it challenges as inadmissible. (Doc. 1019 at 1 -3.) Furthermore, 
Plaintiff argues that Bergman’s testimony concerning statements by officers involved in 
Taylor’s investigation is not inadmissible as hearsay because the officers’ statements are 
party admissions and Plaintiff is not seeking to admit officers’ use of racial slurs for the 
truth of the matters asserted. ( Id. at 2.) Plaintiff further argues that he may pr operly 
introduce Bergman’s former, consistent statements made at his deposition and to 60 

 
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Minutes and Court TV in order to rehabilitate Bergman’s credibility should Defendants 
attack his credibility at trial. ( Id. at 3.) Plaintiff avers that he will not seek to admit 
Bergman’s testimony to prove a Brady claim but that he may permissibly use testimony 
concerning Defendants coercing Bergman into testifying falsely at Taylor’s trial in support 
of his claim that Defendants conspired to violate his constitutional rights. (Id. at 3-4.) 
 Bergman may testify to matters within his personal knowledge. See Fed. R. Evid. 
602. Because Bergman is testifying as a lay witness, and in part due to relevancy concerns, 
Bergman may not opi ne on whether the Pioneer Hotel fire was arson, whether the 
investigation of the fire was adequate, and whether Taylor is guilty or innocent. Testimony 
concerning other officers using racial slurs is not hearsay because it will not be offered to 
prove the truth of the other officers’ statements. See Fed. R. Evid. 801(c)(2). Bergman’s 
statements to media programs are hearsay if offered to prove the truth of the matter s 
asserted, but the Court reserves ruling on whether they may be used as prior consistent 
statements to rehabilitate Bergman’s credibility at trial. See Fed. R. Evid. 801(c), (d)(1)(B). 
Plaintiff may not assert at trial that Defendants violated Brady by failing to disclose 
Bergman’s exculpatory testimony or preventing him from testifying truthfully. The Court 
has already ruled that Plaintiff failed to allege in his operative Third Amended Complaint 
that Defendants violated his constitutional rights by failing to disclose exculpatory 
testimony from Bergman, and that Plaintiff cannot premise his claims in this case on that 
newly asserted underlying constitutional violation . ( See Doc. 869 at 47.) However, 
Bergman’s testimony that Defendants pressured him to testify adversely to Taylor may be 
relevant to his credibility, as it may explain any differences between Bergman’ s current 
testimony and the testimony he gave during Taylor’s criminal proceedings. The Court has 
addressed the parties’ arguments concerning the admissibility of media programs and 
newspaper articles in Section IV(G), supra. 
K. City of Tucson’s Motion in Limine No. 12 re: Jack Frye (Doc. 962) 
 Plaintiff intends to call as an expert witness Jack Frye, who was hired by CBS and 
Court TV to investigate the Pioneer Hotel fire. (Doc. 932 at 294 ; Doc. 1015 at 2 .) It 

 
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appears that Plaintiff listed Frye as a witness in the last supplemental disclosure statement 
that he served prior to the close of discovery in this case. (See Doc. 956 -3.) Specifically, 
Plaintiff disclosed Frye as “an arson expert hired by CBS and Court TV (60 Minutes) to 
conduct his own investigation of the fire,” and Plaintiff stated that Frye was anticipated to 
testify “about his investigation and findings, regarding the statements he made and 
regarding his knowledge of the matters discussed in the interviews conducted by and the 
programs aired by “60 Minutes”/Court TV and/or CBS. ” ( Id. at 13-14.) Plaintiff also 
indicated he may utilize the media programs pursuant to the “previous statements” 
provisions of Federal Rule of Civil Procedure 26(b)(3)(C). (Id.) 
 The City moves to preclude Plaintiff from calling Frye or using any material 
prepared by, communicated to or referring to him. (Doc. 962.) The City argues that 
Plaintiff never disclosed Frye as an expert witness under Rule 26(a)(2), that F rye cannot 
properly testify as a lay witness because he has no relevant personal knowledge , and that 
Frye’s statements would cause unfair prejudice and jury confusion. (Id. at 2-3.) The City 
further urges the Court to preclude Plaintiff from using Frye a s a conduit to introduce 
inadmissible 60 Minutes/Court TV programs. ( Id. at 3-7.) Finally, the City argues that 
Frye should be precluded from testifying regarding other suspects, as that subject has been 
foreclosed by the Court. (Id. at 7.) 
 In response, Plaintiff argues that he was not required to disclose a written expert 
report by Frye because he did not retain or employ Frye as an expert in this case; Plaintiff 
then asserts that Defendants do not challenge his disclosure of Frye under Federal Rule of 
Civil Procedure 26(a)(2)(C). (Doc. 1015 at 2.) Plaintiff further argues that Frye is qualified 
to testify as an expert on fire investigations, and that his opinions concerning reasonable 
investigative procedures and whether those procedures were followed in Taylor’s case are 
relevant and admissible. (Id. at 3.) Plaintiff argues that, although an expert need not base 
opinions on admissible evidence, many of the facts Frye relied on in forming his opinions 
are admissible as party admissions. (Id. at 3-4.) Plaintiff avers that he will introduce Frye’s 
testimony concerning Defendants’ failure to investigate other suspects not in support of a 

 
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Brady claim but to show that the City’s lackluster investigation of the fire resulted from a 
custom of racial discrimination. ( Id. at 5.) Plaintiff further avers that he does not intend 
to use Frye as a conduit to admit statements made in media segments. ( Id. at 4.) Plaintiff 
contends that Chin, and potentially Unklesbay and Acosta, reviewed the 60 Minut es 
features that include Frye’s conclusions. (Id. at 5.) 
 The City’s argument that Frye was never disclosed as an expert under Federal Rule 
of Civil Procedure 26(a)(2) encompasses an argument that he was not disclosed as a Rule 
26(a)(2)(C) expert. A party’s disclosure under Rule 26(a)(2)(C) of a non-retained expert 
need not be accompanied by a written report, but it “must state the subject matter on which 
the witness is expected to present evidence under Federal Rules of Evidence 702, 703, or 
705, and a summary of the facts and opinions to which the witness i s expected to testify. 
Fed. R. Civ. P. 26(a)(2)(C). Although Plaintiff’s disclosure could have been clearer, the 
Court finds it was nevertheless sufficient under Rule 26(a)(2)(C), as Plaintiff disclosed 
Frye as “an arson expert” who will testify regarding his investigations and findings and the 
statements he made to CBS/Court TV. Furthermore, although it does not appear that 
Plaintiff disclosed Frye before expiration of the deadline for initial expert disclosures, he 
disclosed him prior to the close o f discovery, and Defendants had years to seek to depose 
Frye or discover further information related to him. See Fed. R. Civ. P. 37(c)(1) (discovery 
violation need not result in preclusion if it was substantially justified or harmless). It 
appears that Frye’s testimony, including his testimony concerning other suspects, may be 
relevant to show the thoroughness of the investigation of the Pioneer Hotel fire, which may 
be relevant to whether the prosecution of Taylor resulted from a proper investigation or 
from racist practices and customs. However, the relevance of Frye’s testimony appears to 
be limited given the Court’s dismissal of Plaintiff’s expungement claim. The parties have 
provided insufficient detail for the Court to definitively rule on whether Frye is qualified 
to testify as an expert and whether his testimony is admissible under Federal Rule of 
Evidence 702. Accordingly, the Court will deny the City’s Motion to the extent it seeks a 
ruling in limine, and will reserve until trial a definitive ruling on the admissibility of Frye’s 

 
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testimony. 
L. City of Tucson’s Motion in Limine No. 13 re: Robert Cannon (Doc. 963) 
 In the Joint Proposed Pretrial Order, Plaintiff lists Robert Cannon as a witness who 
is expected to testify regarding his interactions with and familiarity with Taylor stemming 
from Cannon’s work for the adult probation department. (Doc. 932 at 290.) The City 
moves to preclude Plaintiff from calling Cannon as a witness at trial, arguing that Cannon’s 
interactions with Taylor, and the probat ion department’s belief as to Taylor’s guilt or 
innocence, are irrelevant , and that Cannon’s testimony is inadmissible under Rule 403 . 
(Doc. 963.) In response, Plaintiff argues that Cannon’s testimony may be admissible at 
trial for purposes of impeachmen t of Unklesbay and Acosta and/or to rebut their claims 
about the sufficiency of their 2012 -2013 review of Taylor’s case. Given the Court’s 
dismissal of Plaintiff’s expungement claim, the Court finds that Cannon’s anticipated 
testimony is irrelevant even f or the limited purposes of impeachment or rebuttal. If the 
testimony has any probative value, it is outweighed by Rule 403 concerns. The Court will 
grant the City’s Motion in Limine No. 13 and preclude Cannon’s testimony. 
M. City of Tucson’s Motion in Limine No. 14 re: Lesley Hoyt -Croft (Doc. 
954) 
 In the Joint Proposed Pretrial Order, Plaintiff lists Lesley Hoyt-Croft, a documentary 
filmmaker and a member of the Justice Project with a Ph.D. in behavioral science, as a 
“fact and damage witness” who will testify about “Taylor’s history, his damages, her 
experiences with him and about the documentaries she produced.” (Doc. 932 at 289.) 
Plaintiff further indicates that Hoyt -Croft will lay foundation for audio and visual clips 
regarding Taylor’s case and the Pioneer Hotel fire. ( Id.) Plaintiff first disclosed Hoyt -
Croft as a witness in his Thirteenth Supplemental Disclosure Statement on November 24, 
2021 (Doc. 954-1)—after the close of di scovery in this case (see Doc. 248)—although it 
appears he previously disclosed members of the Arizona Justice Project team generally, 
without specifically identifying Hoyt-Croft by name (see Doc. 954-1 at 3). 
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and to further preclude Plaintiff from introducing Hoyt -Croft’s documentaries and any 
related video or audio clips. (Doc. 954.) The City argues that Plaintiff did not timely 
disclose Hoyt-Croft as a witness ; that Plaintiff did not disclose her as an expert witness ; 
that Hoyt-Croft lacks any personal knowledge of the matters at issue so as to testify as a 
lay witness; that Hoyt -Croft’s testimony and documentaries are inadmissible as hearsay; 
and that Hoyt-Croft’s testimony and documentaries are inadmissible under Rule 403. (Id. 
at 1-5.) 
 In response, Plaintiff concedes that he did not disclose Hoyt -Croft and the media 
exhibits at issue until after the close of discovery, but Plaintiff argues that the disclosure 
violation was harmless because Defendants had years to move to depose Hoyt -Croft or 
other witnesses. (Doc. 1034 at 2 -3.) Plaintiff also argues that the 60 Minutes segment is 
admissible because it contains party-opponent statements and Plaintiff will introduce other 
portions for purposes other than proving the truth of the matters a sserted. ( Id. at 3-4.) 
Plaintiff urges the Court to defer ruling until trial on the admissibility of the other contested 
media exhibits. (Id. at 4-5.) In response to a separate Motion in Limine, Plaintiff indicates 
that Hoyt-Croft is a non -retained expert in behavioral science , and Plaintiff avers that he 
intends to elicit expert testimony from her. (Doc. 1038 at 12-14.) 
 As discussed in Section IV(P), infra, the Court will take under advisement the issue 
of whether Plaintiff may seek or introduce evid ence of emotional distress damages, 
pending resolution of Plaintiff’s Memorandum re: Equitable Estoppel. Accordingly, the 
Court will also take under advisement the City of Tucson’s Motion in Limine No. 14 re: 
Lesley Hoyt-Croft. 
N. City of Tucson’s Motion in Limine No. 15 re: Limitation on Issues and 
Evidence Based on Prior Rulings by the Court (Doc. 965) 
 The City moves to preclude any evidence, opinions, or arguments regarding matters 
already precluded by prior Orders of the Court, including: (1) any alleged failure to disclose 
evidence of other suspects or other fires; (2) the existence of probable cause to arrest 
Taylor; (3) the legality of Taylor’s interrogation or the admissibility of the statements he 

 
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made during his interrogation; and (4) any alleged failure to disclose allegedly exculpatory 
testimony from Bergman. (Doc. 965.) 
 In response, Plaintiff argues that the City’s Motion confuses evidence with claims. 
(Doc. 1016 at 2.) Plaintiff argues that this Court has already recognized that most of the 
evidence at issue is relevant to Plaintiff’s remaining claims in this case. ( Id. at 1 -2.) 
Plaintiff concedes that the Court has determined that evidence relating to other suspects is 
not at issue but argues that it may be relevant for impeachment or other purposes and should 
not be precluded in limine. (Id. at 2-3.) 
 In its summary judgment Order, the Court found that Plaintiff cannot premise his 
claims on underlying Brady violations arising from a failure to disclose evidence of other 
suspects or a failure to disclose exculpatory testimony from Bergman. (Doc. 869 at 59.) 
The Court also found that Plaintiff cannot obtain damages based on the alleged 
unlawfulness of his arrest and interrogation. ( Id.) However, the Co urt recognized that 
evidence of Taylor being arrested without probable cause or unlawfully interrogated may 
be relevant to whether the PCAO believed in 2013 that it had sufficient evidence to prove 
Taylor’s guilt beyond a reasonable doubt at a retrial. ( Id. at 35.) Given the Court’s 
dismissal of Plaintiff’s expungement claim, the evidence is no longer relevant for that 
purpose. However, evidence concerning the circumstances of Taylor’s interrogation is still 
relevant to the reliability of statements that Taylor made during that interrogation, if those 
statements are admitted into evidence at trial. See Crane v. Kentucky , 476 U.S. 683, 688 
(1986) (“evidence surrounding the making of a confession bears on its credibility as well 
as its voluntariness” (internal quotation marks omitted)). 
 The Court has never concluded that evidence of other suspects or other fires, and 
evidence of pressuring Bergman to withhold exculpatory testimony, is irrelevant for all 
purposes. Bergman’s testimony concerning pressure placed on him to withhold 
exculpatory testimony is relevant to his credibility and the reasons for the changes in his 
prior and current testimony. The Court reserves ruling on whether evidence of other 
suspects or other fires may be admissible for a proper purpose at trial. 

 
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O. City of Tucson’s Motion in Limine No. 16 re: Lindsay Herf (Doc. 967) 
 In the Joint Proposed Pretrial Order, Plaintiff lists Lindsay Herf, a member of the 
Justice Project, as a “fact and damage witness” who will testify about her work on Taylor’s 
behalf and her analysis of the psychological impact on Taylor of being wrongly convicted, 
including but not limited to matters discussed in a documentary called “This Damn Town.” 
(Doc. 932 at 291.) Plaintiff first disclosed Herf in his Thirteenth Supplemental Disclosure 
Statement on November 24, 2021 (Doc. 967 -1)—after the close of discovery in this case 
(see Doc. 248 )—although it appears he previously disclosed members of the Arizona 
Justice Team generally, without specifically identifying Herf by name ( see Doc. 967-1 at 
3). 
 The City moves to preclude Plaintiff from calling Herf as a witness, arguing that 
she was not timely disclosed ; was never disclosed as an expert witness; lacks personal 
knowledge so as to testify as a lay witness; and cannot permissibly opine on Taylor’s guilt 
or innocence. (Doc. 967 at 1-5.) The City also urges the Court to preclude Plaintiff from 
using Herf as a conduit for introducing the documentary “This Damn Town,” or any 
statements therein. ( Id. at 5-7.) Finally, the City argues that Herf’s proffered testimony 
and the documentary “This Damn Town” are inadmissible under Rule 403 because they 
are unfairly prejudicial and will only confuse and mislead the jury. (Id. at 7.) 
 In response, Plaintiff argues that Herf will provide lay testimony concerning her 
interactions with and observations of Plaintiff after his release from prison, which Plaintiff 
contends is relevant to his emotional damages claim. (Doc. 1020 at 2 , 4-5.)12 Plaintiff 
further argues that the timing of his disclosure of Herf as a witness did not harm the City 
because the City has had years to discover further information about Herf’s observations. 
(Id. at 3-4.) Plaintiff avers that he does not intend to use Herf as a conduit to admit hearsay 
statements from the documentary “This Damn Town.” (Id. at 4.) 
 As discussed in Section IV(P), infra, the Court will take under advisement the issue 
 
12 In response to Defendants’ Joint Motion in Limine re: Compensatory Damages, Plaintiff 
avers that Herf will also testify, based on her experience as a lawyer, “about the types of 
problems and hardships that wrongly convicted people suffer.” (Doc. 1038 at 13.) 

 
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of whether Plaintiff may seek or introduce evidence of emotional distre ss damages, 
pending resolution of Plaintiff’s Memorandum re: Equitable Estoppel. Accordingly, the 
Court will also take under advisement the City of Tucson’s Motion in Limine No. 16 re: 
Lindsay Herf. 
P. Defendants’ Joint Motion in Limine re: Compensatory Dama ges (Doc. 
956) 
 Defendants jointly move for a ruling that Plaintiff is not entitled to recover, argue 
for, or present any evidence of compensatory damages. (Doc. 956.) They argue that 
Plaintiff is not entitled to any compensatory damages if he does not s ucceed on his 
expungement claim because he has no non -incarceration-based compensatory damages. 
(Id. at 5-7.) Defendants further argue that Plaintiff should be precluded from presenting 
evidence of compensatory damages even if he succeeds on his expungement claim because 
he did not timely disclose evidence of compensatory damages , did not disclose damages 
witnesses as experts, did not disclose witnesses who can offer permissible lay testimony 
concerning damages, never disclosed a computation of damages, and stonewalled 
Defendants’ efforts to discover any damages evidence during discovery. (Id. at 7-10.) 
 In response, Plaintiff argues that, even if his expungement claim fails, he is not 
Heck-barred from seeking non -incarceration-based compensatory damages for 
constitutional violations that affected his 1972 convictions. (Doc. 1038 at 1-8.) Plaintiff 
also contends that Heck does not apply to no-contest pleas. (Id. at 8-10.) Finally, Plaintiff 
concedes that some of his damage s disclosures occurred after the discovery deadline, but 
he contends that all parties made substantial disclosures after discovery had closed, and he 
argues that some evidence —such as a psychiatric report prepared during Taylor’s 
guardianship proceedings—could not have been disclosed within the discovery deadline. 
(Id. at 11-12.) Finally, Plaintiff argues that Herf and Jeanette Mare will provide lay witness 
testimony regarding their observations of Taylor and his difficulties re -entering society, 
and that Hoyt-Croft will provide testimony as a non-retained expert in behavioral science, 
in addition to testimony laying foundation for the video archives she developed. (Id. at 12-

 
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14.) 
 In a Memorandum re: Equitable Estoppel filed on April 16, 2024, Plaintiff argues 
that Heck is an affirmative defense that may be waived or forfeited, and that this Court 
should equitably estop Defendants from asserting a Heck bar in this case. (Doc. 1112; see 
also Doc. 1109.) Plaintiff contends that applying equitable estoppel is appropriate here 
because Pima County Attorney Laura Conover would have moved to dismiss his 2013 
convictions if not for misconduct by Pima County in 2022, and therefore a Heck bar would 
not exist in this case if not for Pima County’s misconduct. ( Id.) The Court has construed 
the Memorandum as a Motion and ordered Defendants to respond. (Doc. 1115 at 7.) 
 The Ninth Circuit has already held that Plaintiff “cannot seek to collect damages for 
the time that he served pursuant to his [2013] plea agreement.” Taylor v. Pima Cnty., 913 
F.3d 930, 936 (9th Cir. 2019). Given the Court’s dismissal of Plaintiff’s e xpungement 
claim, the Heck bar and the Ninth Circuit’s ruling continue to apply , unless the Court 
accepts the position asserted in Plaintiff’s Memorandum re: Equitable Estoppel. Although 
Heck may not bar Plaintiff from seeking non -incarceration-based compensatory damages, 
Plaintiff has failed to disclose or identify any emotional distress damages that can be 
disentangled from incarceration -based damages. As an example, during his deposition, 
Plaintiff’s attorney indicated Taylor was emotionally impacted by the non-disclosure of the 
Truesdail Report, separate and apart from the emotional impact of his imprisonment, but 
when Taylor was asked about the Report, he indicated the non -disclosure affected him 
because he probably never would have gone to prison had the Report been disclosed. (Doc. 
341-2 at 163-64.) 
 The Court will take Defendants’ Motion in Limine re: Compensatory Damages 
under advisement pending resolution of the Memorandum re: Equitable Estoppel. 
Q. Pima County’s Motion in Limine re: Dismissed Theories and Claims 
(Doc. 958) 
 Pima County moves to preclude Plaintiff from arguing or introducing evidence 
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rulings. (Doc. 958.) Specifically, Pim a County seeks to preclude any evidence or 
argument concerning the PCAO’s 2020 conflict-of-interest determination and retention of 
outside counsel to represent Pima County in this lawsuit; any alleged custom, practice, or 
policy of racial prosecutions by Pima County; any alleged racism of Horton Weiss or the 
PCAO; the existence of or alleged failure to disclose other suspects; the alleged failure to 
disclose Claus Bergman’s exculpatory testimony; and the legality of Taylor’s arrest and 
interrogation. (Id.) Pima County argues that Plaintiff continues to assert these issues even 
though they have been foreclosed by the Court, and that allowing Plaintiff to assert the 
issues at trial would be unduly prejudicial. ( Id. at 3-4.) Pima County also argues that 
Plaintiff’s evidence concerning a custom, practice, or policy of racial prosecutions —the 
proffered testimony and affidavit of Sherry Van Camp and a videotaped interview of Mike 
Brown—is irrelevant to the remaining claims in this case, was not timely disclosed, and is 
inadmissible hearsay. ( Id. at 5-11.) Pima County argues that the videotaped interview 
abruptly cuts off, that Brown had no personal knowledge of Weiss’s alleged reputation in 
the legal community, that statements Weiss allegedly made to Brown ar e improper 
character evidence, and that the videotape lacks proper foundation and authentication. (Id. 
at 8-9.) Finally, Pima County argues that the evidence should be excluded under Rule 403 
because it is unfairly prejudicial. (Id. at 11.) 
 In response, Plaintiff argues that this Court has already ruled that evidence related 
to the timing of Taylor’s arrest and the voluntariness of his statements, as well as 
Bergman’s testimony, is relevant to Plaintiff’s existing claims. (Doc. 1029 at 2 -3.) 
Plaintiff contends that, while the Court did not allow him to raise a claim relating to the 
former Pima County Attorney’s conflict -of-interest determination regarding current Pima 
County Attorney Laura Conover, evidence concerning that conflict -of-interest 
determination is nevertheless relevant to show that Pima County, for financial or other 
improper reasons, wanted to prevent an independent review of its 2013 plea agreement. 
(Id. at 3.) Plaintiff concedes that the Court has determined he may not assert a Brady claim 
based on a failure to disclose Donald Anthony as an alternative suspect but argues that 

 
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evidence regarding Anthony is relevant to his conspiracy claim and may be relevant for 
impeachment or other purposes. ( Id.) Plaintiff argues that evidenc e of Weiss’ racism is 
directly relevant to his conspiracy claim and also relevant to show improper training and 
supervision and a failure to terminate Weiss. ( Id. at 3-4.) Finally, Plaintiff concedes that 
Judge Brown’s videotaped interview is hearsay but argues that it is admissible under Rule 
803(21) as a statement regarding Weiss’s reputation in the legal community and that it also 
qualifies under the residual hearsay exception of Rule 807. (Id. at 5.) Plaintiff argues that 
statements made to Judge Brown by Weiss are party admissions under Rule 801(d)(2). 
(Id.) Plaintiff contends that he properly disclosed Judge Brown’s statement regarding 
Weiss using a racial slur, as Plaintiff referenced the slur in his Second Amended Complaint 
and identified Judge Brown in his response to Pima County’s first set of interrogatories. 
(Id. at 6.) Plaintiff avers that he does not intend to call Van Camp as a witness “unless 
necessary to establish the reliability of Judge Brown’s interview under Rule 807.” ( Id. at 
5 n.1.) Plaintiff further avers that he does not intend to use “any of Judge Brown’s opinions 
regarding Taylor’s conviction.” (Id.) 
 To the extent Pima County’s Motion seeks to preclude evidence of the PCAO’s 
2020 conflict-of-interest determination and retention of outside counsel in this matter, the 
Court will take the Motion under advisement pending resolution of Plaintiff’s 
Memorandum re: Equitable Estoppel. The Court will partially grant and partially deny the 
Motion to the extent it seeks rulings in limine on the admissibility of the other evidence at 
issue. Bergman’s testimony concerning pressure placed upon him to withhold exculpatory 
testimony at Taylor’s trial is relevant to Bergman’s credibility and the reasons why his 
prior testimony differs from his current testimony. Simi larly, evidence concerning the 
circumstances of Taylor’s interrogation is relevant to the reliability and credibility of 
statements he made during the interrogation. See Crane, 476 U.S. at 688. 
 The alleged racism of Weiss may be relevant to Plaintiff’s failure -to-terminate 
claim, but the videotaped interview of Judge Brown is hearsay, and Plaintiff has not shown 
that it falls within a hearsay exception. Judge Brown ’s recollection of a specific incident 

 
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with Weiss d oes not constitute testimony of a reputation in the community concerning 
Weiss’s character under Rule 803(21) . The Court reserves ruling on whether the 
videotaped interview may be admissible for purposes of im peachment. As discussed in 
Section IV(F), supra, the Court will preclude Plaintiff from calling Van Camp to testify for 
purposes of proving the truth of statements that Judge Brown made to Van Camp, as such 
testimony is inadmissible hearsay. 
 Plaintiff may not premise his claims on an alleged failure to disclose evidence of 
other suspects, and given the dismissal of Plaintiff’s expungement claim, evidence of other 
suspects is not relevant for purposes of showing whether Unklesbay an d Acosta believed 
they had sufficient evidence to retry Taylor in 2013. However, it is unclear whether 
evidence of other suspects may be admissible for another purpose, such as rebutting claims 
regarding the thoroughness of the investigation of Taylor. Accordingly, the Court defers 
until trial a definitive ruling on the admissibility of other-suspect evidence. 
R. Pima County’s Motion in Limine re: Taylor’s Criminal Attorneys (Doc. 
969) 
 In the Joint Proposed Pretrial Order, Plaintiff lists Edward Novak, Andy Silverman, 
Michael Piccarreta, Lindsey Herf, and Noel Fidel as trial witnesses who will testify 
regarding Taylor’s criminal prosecution and post -conviction relief proceedings, including 
the work of the Arizona Justice Project on Taylor’s case. (Doc. 925 at 290-291, 293-294.) 
 Pima County moves to preclude Plaintiff from calling his criminal attorneys as trial 
witnesses, arguing that Taylor did not timely disclose Herf, Piccarreta, or Fidel; that 
Plaintiff invoked the attorney -client privilege and work -product doctrine to block Pima 
County’s attempts to discover relevant information from Taylor’s criminal attorneys; that 
the attorneys cannot testify to opinions because they were not disclosed as experts; and that 
the probative value of the attorneys’ testimony is substantially outweighed by Rule 403 
concerns, including undue prejudice, confusing the jury, needlessly presenting cumulative 
evidence, and wasting time. (Doc. 969.) 
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witnesses and that they will offer relevant fact witness testimony concerning the work they 
performed on Taylor’s criminal case and the opinions they necessarily formed to perform 
that work. (Doc. 1044.) Plaintiff also argues that it would be unfair to allow Unklesbay 
and Acosta to testify regarding opinions they formed as part of their review of Taylor’s 
2012-2013 Petition for Post-Conviction Relief, but not to allow Taylor’s criminal attorneys 
to do the same. ( Id. at 4-5.) Finally, Plaintiff argues that the testimony of the Justice 
Project attorneys is not unfairly prejudicial under Rule 403. (Id. at 5-6.) 
 It is unclear whether Plaintiff’s Justice Project attorneys can offer any relevant 
testimony given the Court’s dismissal of Plaintiff’s expungement claim. Testimony 
concerning the 2012 deposition of Holmes is potentially still relevant to the remai ning 
claims in this case, but it appears that testimony concerning the attorneys’ work on 
Plaintiff’s 2012-2013 Petition for Post-Conviction Relief is no longer relevant. Because it 
is not clear that Plaintiff will seek to elicit the evidence at issue given this Court’s dismissal 
of the expungement claim, the Court will deny Pima County’s Motion as moot, with leave 
for the parties to re-raise the issue at trial if necessary. 
S. Pima County’s Motion in Limine re: Arson Review Committee (Doc. 
971) 
 Pima County moves to preclude Plaintiff from introducing the Arson Review 
Committee’s report (“ARC Report”) into evidence and from calling members of the Arson 
Review Committee (“ARC”) as trial witnesses. (Doc. 971.) In response, Plaintiff argues 
that the ARC Report and testimony of ARC membe rs is relevant to show the information 
that Unklesbay and Acosta reviewed and to prove whether Pima County knew in 2013 that 
the charges against Taylor were unprovable at a retrial. (Doc. 1046 at 2 -4.) Due to the 
dismissal of Plaintiff’s expungement clai m, it appears that the ARC Report and the 
testimony of ARC members is no longer relevant to any claim remaining for trial. Because 
it is not clear that Plaintiff will seek to elicit the evidence at issue given this Court’s 
dismissal of the expungement claim, the Court will deny Pima County’s Motion as moot, 
with leave for the parties to re-raise the issue at trial if necessary. 

 
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T. Pima County’s Motion in Limine re: Documentaries (Doc. 972) 
 Pima County moves to preclude Plaintiff from admitting or introducing testimony 
regarding the content of programs regarding Taylo r’s case aired by 60 Minutes/Court 
TV/CBS, as well as documentaries and a videotaped interview of Claus Bergman produced 
by Lesley Hoyt-Croft, the documentary This Damn Town, and the Ballad of Louis Taylor. 
(Doc. 972.) Pima County argues that Plaintiff failed to timely disclose Hoyt-Croft and the 
documentaries and videotaped interview she produced. (Id. at 9-10.) Pima County further 
argues that the documentaries and videotaped interview are inadmissible hearsay , they 
contain numerous inadmissible lay and expert witness opinions, and any probative value 
they may have is substantially outweighed by Rule 403 concerns. (Id. at 10-13.) Finally, 
Pima County argues that Federal Rule of Civil Procedure 26(b)(3)(C), cited by Plaintiff in 
the Joint Proposed Pretrial Order, does not govern the admissibility of evidence at trial. 
(Id. at 13.) 
 In response, Plaintiff argues that the untimeliness of his disclosure was harmless 
because he disclosed the evidence less than two yea rs after the close of discovery and 
Defendants had years to move to depose Hoyt-Croft and other witnesses. (Doc. 1048 at 2-
3.) Plaintiff further argues that the 2013 60 Minutes segment is not hearsay because it 
contains party-opponent statements and other portions will not be offered to prove the truth 
of the matters asserted. (Id. at 3-4.) Finally, Plaintiff urges the Court to defer ruling on the 
admissibility of other contested media exhibits. (Id. at 4-5.) 
 As discussed above in Section IV(G), supra, the Court finds that statements made 
to 60 Minutes by LaWall are non-hearsay opposing party statements under Rule 801(d)(2), 
but that other portions of the documentaries and media segments are hearsay if offered for 
purposes of proving the truth of the matters asserted therein. The Court reserves ruling on 
whether any portions of the documentaries and media segments may be admissible for 
other purposes or under any hearsay exceptions, but notes that there are significant Rule 
403 concerns. 
. . . . 

 
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U. Pima County’s Motion in Limine re: David Smith (Doc. 973) 
 Pima County moves to preclude David Smith from providing any expert fire 
testimony and moves to preclude his Court TV interview transcript, statements he made 
that were broadcasted on 60 Minutes or printed in the Arizona Daily Star, and any 
testimony about such statements. (Doc. 973.) Pima County argues that Plaintiff cannot 
permissibly elicit expert fire testimony from Smith because Plaintiff failed to disclose 
Smith as an expert. (Id. at 4-6.) Pima County further argues that the 60 Minutes broadcast, 
transcript, and Arizona Daily Star article are all inadmissible hearsay and that Smith’s 
statements are not admissible as opposing party statements under Federal Rule of Evidence 
801(d)(2) because he was not a City of Tucson employee when he made the state ments. 
(Id. at 6-7.) Finally, Pima County argues that Federal Rule of Civil Procedure 26(b)(3)(C) 
is inapplicable to the admissibility of evidence. (Id. at 7-8.) 
 In response, Plaintiff argues that statements Smith made to 60 Minutes, Court TV, 
and the Arizona Daily Star are admissible as party opponent statements of the City under 
Federal Rule of Evidence 801(d)(2), and that Plaintiff does not object to the Court 
providing a limiting instruction that the statements are admissible against the City only. 
(Doc. 1033.) Plaintiff further argues that his disclosures were adequate. (Id. at 3.) Plaintiff 
confirms that he intends to admit statements that Smith made in 2002 to 60 Minutes and 
statements he made in 2006 to the Arizona Daily Star, although he is uncertain if he will 
seek to admit any of Smith’s Court TV statements. (Id. at 2-3.) 
 As discussed in Section IV(G), supra, the Court finds that Smith’s statements to the 
media do not qualify as non -hearsay opposing party statements under Federal Rule of 
Evidence 801(d)(2), and that Federal Rule of Civil Procedure 26(b)(3)(C) does not govern 
the admissibility of evidence at trial. Smith may testify as a fact witness to matters within 
his personal knowledge, but Plaintiff is precluded pursuant to Federal R ule of Civil 
Procedure 37(c)(1) from eliciting expert testimony from Smith. The Court reserves ruling 
on whether Smith’s statements to the media are admissible under Federal Rules of 
Evidence 613(b) or 801(d)(1)(B). 

 
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V. Pima County’s Motion in Limine re: Relationship Between Pima County 
and Pima County Attorney (Doc. 974) 
 Pima County moves to preclude Plaintiff from arguing that Pima County Attorney 
Laura Conover represents Pima County in this matter, that Pima County’s counsel in this 
matter represents Con over, or that Conover is a party to this lawsuit. (Doc. 974.) Pima 
County notes that Plaintiff has repeatedly made these assertions but that none are factually 
or legally true, and that any argument concerning the assertions is irrelevant and risks 
undue prejudice and juror confusion. (Id.) 
 In response, Plaintiff concedes that Pima County’s attorneys of record in this matter 
do not represent Conover, and Plaintiff accordingly requests a negative inference be drawn 
for communications between Struck Lov e and Conover or her counsel withheld by Pima 
County on the basis of attorney -client privilege. (Doc. 1031 at 3.) Plaintiff argues, 
however, that Conover is an officer of Pima County and therefore a party to this lawsuit, 
and that she represents Pima County in this lawsuit because Pima County has produced no 
evidence that the County Board of Supervisors declined her representation in this matter 
due to a conflict of interest or lack of harmony. (Id. at 1-3.) 
 Conover is an official of Pima County, and her actions may thus be attributed to 
Pima County under certain circumstances. However, t he Court will grant Pima County’s 
Motion to the extent it seeks to preclude Plaintiff from arguing at trial that Conover 
represents Pima County in this matter or that Pima County’s counsel represents Conover. 
Given Pima County’s averment that its counsel in this matter does not represent Conover, 
the Court grants Plaintiff leave to seek a negative inference instruction regarding any 
relevant communications between Pima County’s co unsel of record in this matter and 
Conover that were withheld on the basis of attorney-client privilege. 
W. Pima County’s Motion in Limine re: Unsworn Transcript (Doc. 975) 
 Pima County moves to preclude Plaintiff from introducing a purported transcript of 
a telephone conversation between Lynden Gilmore and Glen Miller, and any testimony 
about the conversation. (Doc. 975.) Pima County argues that the transcript has not been, 

 
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and cannot be, authenticated , as it is unknown when the conversation occurred, what 
number was called, when the conversation was transcribed, and who transcribed it , and 
both Gilmore and Miller are believed to be deceased. (Id. at 2-4.) Pima County also argues 
that the transcript is inadmissible hearsay. (Id. at 4-5.) 
 In response, Plaintiff argues that he can sufficiently authenticate the transcript under 
Federal Rule of Evidence 901(b)(4) and that the transcript also falls within Rule 901(b)(6). 
(Doc. 1047 at 2 -3.) Plaintiff avers that, upon information and belief, the transcript was 
generated by the City and found in the early 2000s in the City’s file on Taylor. ( Id. at 3.) 
Plaintiff argues that Gilmore’s statements in the transcript are admissible as party opponent 
and co -conspirator statements under Federal Rule of Evidence 80 1(d)(2)(E), and that 
Miller’s statements are not hearsay because Plaintiff will not admit them to prove the truth 
of the matters asserted. ( Id. at 4-5.) Finally, Plaintiff argues that Defendants should be 
judicially estopped from disputing the admissibil ity of the statements because they relied 
on the transcript in their summary judgment motions. (Id. at 5.) 
 The proponent of an item of evidence must authenticate it by producing “evidence 
sufficient to support a finding that the item is what the proponen t claims it is.” Fed. R. 
Evid. 901(a). The requirement of authentication may be satisfied in a number of ways, 
including through the testimony of a witness with knowledge , Fed. R. Evid. 901(b)(1) ; 
through the “appearance, contents, substance, internal patterns, or other distinctive 
characteristics of the item, taken together with all the circumstances ,” Fed. R. Evid. 
901(b)(4); and, for a telephone conversation, through “evidence that a call was made to the 
number assigned at the time to . . . a particular person, if circumstances, including self -
identification, show that the person answering was the one called,” Fed. R. Evid. 901(b)(6). 
In addition, ancient documents may be authenticated through evidence that the document 
“is in a condition th at creates no suspicion about its authenticity”; “was in a place where, 
if authentic, it would likely be”; and “is at least 20 years old when offered.” Fed. R. Evid. 
901(b)(8). 
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based on their reliance on the transcript at the summary judgment stage—from arguing that 
the transcript is admissible only if properly authenticated. Plaintiff has not presented 
evidence that a call was made to the number assigned at the time to Mill er or Gilmore; 
accordingly, it does not appear that Plaintiff can authenticate the transcript of the phone 
call under Federal Rule of Evidence 901(b)(6). The contents of the phone call reveal 
information that only individuals involved in the Pioneer Hotel fire investigation would 
have known, which provides some support for authentication under Rule 901(b)(4). The 
Court is troubled, however, that there is no information in the record concerning when and 
by whom the phone call was transcribed . The Court fi nds that Plaintiff may authenticate 
the transcript by calling a witness who will testify that the transcript was found in the City’s 
files, that its condition has not been altered since it was found, and that it is at least twenty 
years old. See Fed. R. E vid. 901(b)(8). Statements in the document would then be 
admissible under the hearsay exception of Rule 803(16), and Gilmore’s statements are also 
admissible as non-hearsay party opponent statements under Rule 801(d)(2). Accordingly, 
the Court will deny Pima County’s Motion, with leave to re-raise the issue if Plaintiff fails 
to elicit testimony authenticating the transcript as an ancient document under Rule 
901(b)(8). 
X. Pima County’s Motion in Limine re: Post-2013 Conduct (Doc. 976) 
 Pima County moves to preclude Plaintiff from introducing evidence of or discussing 
any alleged conduct by the PCAO, Laura Conover, Jack Chin, Pima County, Pima 
County’s counsel, or David Berkman that occurred after Taylor accepted his April 2, 2013 
no-contest plea. (Doc. 976.) The Court will take the Motion under advisement pending 
resolution of Plaintiff’s Memorandum re: Equitable Estoppel. 
 IT IS ORDERED: 
1. Plaintiff’s Motion in Limine re: Judicial Estoppel (Doc. 911) is denied as 
moot, with leave for the parties to re-raise the issue at trial if necessary. 
2. Plaintiff’s Motion in Limine re: Executive Session Privilege (Doc. 916) is 
denied as moot. 

 
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3. Plaintiff’s Motion in Limine re: Prior Testimony (Doc. 942) is denied, as set 
forth above. 
4. Plaintiff’s Motion in Limine re: Former County Attorney Witnesses (Doc. 
943) is partially granted and partially denied, as set forth above. 
5. Plaintiff’s Motion in Limine re: Unklesbay and Acosta (Doc. 944) is denied 
as moot, with leave for the parties to re-raise the issue at trial if necessary. 
6. Plaintiff’s Motion in Limine re: Unklesbay, Acosta and LaWall (Doc. 945) 
is denied as moot , with leave for the parties to re -raise the issue at trial if 
necessary. 
7. Plaintiff’s Motion in Limine re: Taylor’s Statements (Doc. 946) is denied. 
8. Plaintiff’s Motion in Limine re: Bad Acts (Doc. 947) is denied without 
prejudice to the extent it seeks a ruling in limine. The parties may re-raise 
the issues addressed in the Motion at trial. 
9. Plaintiff’s Motion in Limine re: Opinions of Tommy Tunson (Doc. 948) is 
denied. 
10. City of Tucson’s Motion in Limine No. 1 re: Untimely Disclose d Witnesses 
and Documents (Doc. 938) is denied, as set forth above. 
11. City of Tucson’s Motion in Limine No. 2 re: Robert Jackson’s and Albert 
Jackson’s Statements and Affidavits (Doc. 939) is denied. 
12. City of Tucso n’s Motion in Limine No. 3 re: Rubin Salter ( Doc. 940) is 
granted, with leave for Plaintiff to seek reconsideration of this ruling at trial, 
as set forth above. 
13. City of Tucson’s Motion in Limine No. 4 re: Andrew Pacheco (Doc. 968) is 
denied, as set forth above . The Court’s prior ruling regarding the 
admissibility of Pacheco’s opinions (Doc. 567) is controlling. 
14. City of Tucson’s Motion in Limine No. 5 re: Dr. Thomas Tunson (Doc. 957) 
is partially granted and partially denied, as set forth above. 
15. City of Tucson’s Motion in Limine No. 6 re: Sherry Van C amp (Doc. 941) 

 
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is granted, as set forth above , but the court reserves ruling on whether Van 
Camp may testify for a purpose other than proving the truth of statements 
made to her by Judge Brown. 
16. City of Tucson’s Motion in Limine No. 8 re: David Smith, 60 Minutes (Doc. 
970) is partially granted and partially denied, as set forth above. 
17. City of Tucson’s Motion in Limine No. 9 re: Cyrillis Holmes’ 2012 
Deposition Testimony (Doc. 951) is denied. 
18. City of Tucson’s Motion in Limine No. 10 re: Charlene Smith (Doc. 952) is 
partially granted and partially denied, as set forth above. 
19. City of Tucson’s Motion in Limine No. 11 re: Claus Bergman (Doc. 960) is 
partially granted and partially denied, as set forth above. 
20. City of Tucson’s Motion in Limine No. 12 re: Jack Frye (Doc. 962) is denied 
to the extent it seeks a ruling in limine, as set forth above. The Court defers 
until trial a definitive ruling on the admissibility of Frye’s testimony under 
Federal Rules of Evidence 403 and 702. 
21. City of Tucson’s Motion in Limine No. 13 re: Robert Cannon (Doc. 963) is 
granted. 
22. City of Tucson’s Motion in Limine No. 14 re: Lesley Hoyt-Croft (Doc. 954) 
is taken under advisement, pending resolution of Plaintiff’s Memorandum 
re: Equitable Estoppel. 
23. City of Tucs on’s Motion in Limine No. 15 re: Limitation on Issues and 
Evidence Based on Prior Rulings by the Court (Doc. 965 ) is denied to the 
extent it seeks a ruling in limine, as set forth above. 
24. City of Tucson’s Motion in Limine No. 16 re: Lindsay Herf (Doc. 967) is 
taken under advisement, pending resolution of Plaintiff’s Memorandum re: 
Equitable Estoppel. 
25. Defendants’ Motion in Limine re: Compensatory Damages (Doc. 956) is 
taken under advisement, pending resolution of Plaintiff’s Memorandum re: 

 
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Equitable Estoppel. 
26. Pima County’s Motion in Limine r e: Dismissed Theories and Claims (Doc. 
958) is partially denied, partially granted, and partially taken under 
advisement, as discussed above. 
27. Pima County’s Motion in Limine re: Taylor’s Criminal Attorneys (Doc. 969) 
is denied as moot , with leave for the parties to re -raise the issue at trial if 
necessary. 
28. Pima County’s Motion in Limine re: Arson Review Committee (Doc. 971) 
is denied as moot , with leave for the parties to re -raise the issue at trial if 
necessary. 
29. Pima County’s Motion in Limine re: Documentaries (Doc. 972) is partially 
granted and partially denied, as set forth above. 
30. Pima County’s Motion in Limine re: David Smith (Doc. 973) is partially 
granted and partially denied, as set forth above. 
31. Pima County’s Motion in Limine re: Relationship Between Pima County and 
Pima County Attorney (Doc. 974) is granted, as set forth above. The Court 
grants Plaintiff leave to seek a negative inference instruction regarding 
communications between Pima County’s counsel of record in this matter and 
Conover that were withheld on the basis of attorney-client privilege. 
32. Pima County’s Motion in Limine re: Unsworn Transcript (Doc. 975) is 
denied, with leave for Defendants to re-raise the issue of the admissibility of 
the transcript at trial if Plaintiff fails to authenticate the transcript, as set forth 
above. 
. . . . 
. . . . 
. . . . 
. . . . 
. . . . 

 
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33. Pima County’s Motion in Limine re: Post-2013 Conduct (Doc. 976) is taken 
under advisement , pending resolution of Plaintiff’s Memorandum re: 
Equitable Estoppel. 
 Dated this 30th day of April, 2024. 
 
 

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