NICHOLAS G. GARAUFIS, District Judge.
In September, this court will hold an evidentiary hearing on whether Defendant Ronell Wilson is mentally retarded and therefore ineligible for the death penalty under the Eighth Amendment, see Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and the Federal Death Penalty Act, 18 U.S.C. § 3596(c). Today the court addresses two motions related to this hearing.
First, the Government moves for reconsideration of the court's February 13, 2012, Order, which: (1) prohibited the Government from reviewing materials regarding Wilson's mental health that the defense previously disclosed, under Federal Rule
The Government's motion for reconsideration is frivolous and unavailing: it does not reference, let alone apply, this Circuit's stringent standards for motions for reconsideration; it points to no law, controlling or otherwise, calling into question the court's February 13, 2012, Order; and it accuses the defense of violating that Order by providing its experts with materials that the court prohibited only the Government from accessing. The motion is therefore DENIED.
Closer questions are presented by the objections and requests raised in Wilson's motion, but the court finds his arguments largely premature. The bulk of Wilson's objections are directed toward preventing the Government from conducting tests that the defense considers to be of limited value for determining whether Wilson is mentally retarded. But such arguments are more properly made by the defense's experts in their reports, through cross-examination of the Government's experts at the Atkins hearing, or in motions after the hearing. Although the court might ultimately be persuaded by the defense's arguments about the flaws in certain kinds of information the Government experts intend to seek, it is not currently in a position to prevent those experts from collecting this information. Moreover, to the extent that the defense's arguments are premised upon Wilson's Fifth Amendment rights, the court concludes that these rights are not endangered by the Government's proposed testing. For these reasons and those set forth more fully below, Wilson's motion concerning the Government's testing is DENIED.
In 2006, Wilson was tried before this court for capital-eligible crimes arising from the murder of two New York City Police Officers. The jury convicted Wilson and voted to impose the death penalty. (See Jury Verdict (Docket Entry # 351).) On appeal, the Second Circuit affirmed Wilson's convictions but vacated his death sentence and remanded the case to this court for a new penalty phase. United States v. Whitten, 610 F.3d 168 (2d Cir. 2010).
The court appointed new counsel to represent Wilson in this penalty phase "retrial." Counsel informed the court that it intended to present evidence that Wilson is mentally retarded and thus ineligible for the death penalty under the Eighth Amendment, see Atkins, 536 U.S. at 321, 122 S.Ct. 2242, and the Federal Death Penalty Act, 18 U.S.C. § 3596(c). On February 1, 2012, the defense formally filed notice of its request that this court hold a pretrial hearing to determine whether Wilson is mentally retarded. (Docket Entry # 614.)
By Order dated February 1, 2012, the court set a schedule regarding Wilson's Atkins motion — including an evidentiary
On February 13, 2012, the court addressed: (1) the Government's request that it be permitted to review expert reports and other materials regarding Wilson's mental health that the defense previously disclosed, under Federal Rule of Criminal Procedure 12.2, to firewalled Government counsel in connection with Wilson's 2006 capital trial; and (2) Wilson's request that the Government be prohibited from relying upon its previously retained mental health experts in connection with the Atkins hearing. (Order of Feb. 13, 2012 (Docket Entry # 625) ("February 13 Order"); see also Gov't 12.2 Mot. (Docket Entry # 599); Def. 12.2 Opp'n (Docket Entry # 612).)
On March 7, 2012, the defense provided the Government with notice of its intent to call four mental health experts in support of its Atkins motion and with information regarding the intended subject matter of their testimony. (Def. Ltr. of Mar. 7, 2012 (Docket Entry # 637).) By letters dated March 7, April 6, and May 2, 2012, the Government provided notice of its intent to call three witnesses at the Atkins hearing: Dr. Robert L. Denney, a neuropsychologist; Dr. Robert Mapou, a clinical neuropsychologist; and Dr. Raymond Patterson, a psychiatrist. (Gov't Ltr. of Mar. 7, 2012 (Docket Entry # 638); Gov't Ltr. of Apr. 6, 2012 (Docket Entry # 676); Gov't Ltr. of May 2, 2012 (Docket Entry # 697).) As will be discussed in relevant detail in Part II.B.2, the Government's letters gave a description of the nature of the tests the Government's experts intend to conduct.
On May 14, 2012, the defense filed a motion concerning the Government's proposed testing for the Atkins hearing. (Def. Mem. (Docket Entry # 718).) This motion: (1) objects to the Government experts' use on Wilson of two tests designed to assess his adaptive functioning; (2) objects to the scope and number of the Government experts' proposed examinations of Wilson; (3) demands that the Government be more specific regarding the tests its experts plan to use on Wilson; and (4) requests that the court permit defense counsel to be present when Wilson is examined by the Government experts, or, alternatively, to monitor these tests using an audio feed and to videotape them. (Id.)
At a status conference on May 16, 2012, the Government advised the court that it felt unfairly hamstrung by its inability to
The Government has moved for reconsideration of the court's February 13 Order prohibiting the Government from accessing the materials regarding Wilson's mental health that Wilson disclosed in connection with his 2006 Rule 12.2 notice, and from relying upon its previously retained mental health experts in connection with the Atkins hearing. (Gov't Mem. at 2-17.) This motion is wholly lacking in merit.
The standard for granting a motion for reconsideration is "strict." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). As this court has stated, "[a] motion for reconsideration may be granted only if a court overlooked (1) factual matters that were put before it on the underlying motion or (2) controlling legal authority."
As an initial matter, the Government does not reference the stringent standards set forth in this Circuit for motions for reconsideration. It makes a passing reference to Local Criminal Rule 49.1(d) (see Gov't Reply at 1), but only to suggest that the Rule does not apply. The Government claims that the defense failed to "accurately] assess[ ]" the Government's motion by invoking Local Criminal Rule 49.1(d) because the Government's motion is based on a contention that "the defendant is using and relying upon the Rule 12.2 materials, previously deemed privileged and sealed, to establish his Atkins claim." (Id. at 1-2.)
In any event, the Government has provided nothing resembling the material required by Local Criminal Rule 49.1(d) and this Circuit's case law.
First, the Government does not cite any controlling legal authority supporting its motion. See Local Criminal Rule 49.1(d); Rollins, 2007 WL 539158, at *2. In its memorandum of law, the Government cites a number of out-of-Circuit cases that — apart from being non-controlling — in no way call into question the analysis of Rule 12.2 in the February 13 Order.
Second, the Government does not suggest that the court "overlooked [ ] factual matters that were put before it on the underlying motion." Rollins, 2007 WL 539158, at *2. The primary basis for the Government's motion is that Wilson "is selectively violating the sealing order the Court recently issued, at his request, to pick and choose the items of evidence that he believes will be helpful to establish his alleged mental retardation," while simultaneously
The Government has either grossly misread or deliberately mischaracterized the February 13 Order. That Order prohibited only the Government from accessing the 2006 Rule 12.2 materials and placed no limitations on the defense's ability to access those materials. (See February 13 Order at 7-8 ("the court denies the Government's motion for access to previously disclosed, sealed information"; "the Government may not rely on expert reports or other materials produced to firewalled prosecutors in advance of the 2006 penalty phase"; "[t]he Government may not review [Rule 12.2] material").) That should come as no surprise because Rule 12.2 limits a defendant's access only to those examinations conducted at the Government's request, see Fed. R. Crim. P. 12.2(c)(2), and limits access to examinations conducted at the defendant's behest only to the extent that they would be used "against the defendant," i.e., by the Government, Fed. R. Crim. P. 12.2(c)(4) (emphasis added). It is therefore senseless for the Government to suggest that the defense is "selectively violating" the February 13 Order by disclosing Rule 12.2 material generated by the previous defense team to its current experts, or that its experts are "tainted" because of their reliance on these materials. (Gov't Mem. at 10, 14.)
Rather than providing any plausible legal basis for its motion for reconsideration, the Government complains incessantly that its inability to access the Rule 12.2 materials is "unreasonable" and "unfair" and that it needs those materials in order to have a "full and fair opportunity" to rebut Wilson's Atkins claim. (E.g., Gov't Mem. at 2, 10, 16; Gov't Reply at 3-4.) Of course, to the extent that Rule 12.2 places the Government in an "unfair" position, that quibble is best presented to the Advisory Committee that drafted Rule 12.2, not to this court. But there is also nothing unfair about the Government's situation. Rule 12.2 specifically contemplates that there will not be precise symmetry with respect to the materials to which the parties have access until the parties are involved in a "capital sentencing proceeding." Fed. R. Crim. P. 12.2(c)(4)(B). The February 13 Order simply held that an Atkins proceeding — which, in the majority of cases, will occur even before a determination of guilt — does not qualify as a "capital sentencing proceeding" under the Rule. (See February 13 Order at 6-7.) The Government suggests that it is "unfairly hamstrung" by the February 13 Order (Gov't Mem. at 9) because, until such a proceeding occurs, it will be "limited" to relying upon the trial and previous penalty phase transcripts, the exhibits introduced by both sides, Wilson's prison records, the Government's law enforcement personnel, its subpoena power, court-ordered examinations of Wilson, and the Government's many other resources, to gather information to provide to its experts. The court is
In short, the Government's motion for reconsideration has no basis in law, fact, or common sense. It is denied.
Turning now to more difficult matters, Wilson has filed a motion raising a number of objections and requests regarding the Government's proposed testing for the Atkins hearing. (See Def. Mem.) Before addressing the substance of Wilson's motion, the court finds it helpful (both in understanding Wilson's motion and going forward) to discuss briefly the general legal standards governing an Atkins motion, which have not yet been set forth in this Circuit.
The Federal Death Penalty Act, enacted in 1988, provides that a "sentence of death shall not be carried out upon a person who is mentally retarded." 18 U.S.C. § 3596(c). Fourteen years later, the principle embodied in the Act became a constitutional requirement when, in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that a sentence of death for criminals who are mentally retarded violates the Eighth Amendment's ban on "cruel and unusual punishment." Id. at 321, 122 S.Ct. 2242. The Court concluded that although the deficiencies of mentally retarded criminals did "not warrant an exemption from criminal sanctions," such criminals "should be categorically excluded from execution" because: (1) there was "a serious question as to whether either justification that [the Court] ha[s] recognized as a basis for the death penalty" — retribution or deterrence — "applies to mentally retarded offenders"; and (2) there was an enhanced risk in the case of mentally retarded offenders "that the death penalty will be imposed in spite of factors which may call for a less severe penalty," due to "the possibility of false confessions" and the "lesser ability of mentally retarded defendants to make a persuasive showing of mitigation." Id. at 318-320, 122 S.Ct. 2242.
The Court did not set forth a precise definition of "mental retardation," but instead left it to individual states to develop a means of enforcing the restriction against execution of mentally retarded offenders. See id. at 317, 122 S.Ct. 2242. Nevertheless, the Court noted that "clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18." Id. at 318, 122 S.Ct. 2242. In support, the Court cited two
Regarding the first prong — below-average intellectual functioning — "the APA and AAMR/AAIDD are in substantial agreement on the standard to be used: a score of 75 or below on one of the generally accepted tests of intelligence." United States v. Hardy, 762 F.Supp.2d 849, 879 (E.D.La.2010) ("Hardy II"); see also Davis, 611 F.Supp.2d at 475 (although "an IQ score two standard deviations below the mean — the benchmark for mental retardation — is approximately 70," the "standard error of measurement ... in IQ assessments is approximately 5 points, therefore raising the operational definition of mental retardation to 75" (citing AAMR, Mental Retardation: Definition, Classification, and Systems of Supports 58-59 (10th ed. 2002) ("AAMR Manual"); APA, Diagnostic and Statistical Manual of Mental Disorders 41-42 (4th ed. 2000) ("DSM-IV-TR")).
The second prong — adaptive functioning — "refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting.'" Wiley v. Epps, 625 F.3d 199, 216 (5th Cir.2010) (quoting DSM-IV-TR at 42). The definition of "adaptive functioning" is "less settled than that for intellectual functioning." Hardy II, 762 F.Supp.2d at 879. The APA "requires concurrent deficits in at least
Finally, it is important to emphasize the backward-looking nature of a court's determination of mental retardation. For one thing, as discussed above, a person may be diagnosed with mental retardation only if the disability manifested itself before the person reached the age of eighteen. See generally Atkins, 536 U.S. at 308 n. 3, 318, 122 S.Ct. 2242. Moreover, for the purposes of an Atkins determination, the question is whether the criminal defendant "was mentally retarded at the time of the crime and therefore ineligible for the death penalty, not whether a person is currently mentally retarded and therefore in need of special services." Hardy II, 762 F.Supp.2d at 881 (emphasis added). In other words, mental retardation must "be diagnosed, if it is to be diagnosed at all, retrospectively in every sense of the word." Id.
With these general standards in mind, the court turns to the arguments raised in Wilson's motion concerning the Government's proposed testing.
The Government has stated that it "expects Dr. Denney to evaluate the defendant's adaptive functioning by assessing him according to standardized adaptive living scales" (Gov't Ltr. of Mar. 7, 2012, at 1), including "the ABAS-II or Vineland Scales" (Gov't Ltr. of Apr. 6, 2012, at 2). Although the defense does not object to
As a general matter, "[a] full psychiatric examination requires considerable freedom to the examiner." United States v. Taveras, No. 04-CR-156 (JBW), 2008 WL 4630514, at *1 (E.D.N.Y. Oct. 20, 2008). The court expects that Dr. Denney is aware of the flaws pointed out by the defense and will not place undue reliance on Wilson's performance on adaptive functioning testing. If indeed he does rely upon the results of this testing, he will of course have to justify that reliance in his submissions to the court and at the Atkins hearing. The defense will then have the opportunity to cross-examine Dr. Denney regarding his reliance on the ABAS-II and Vineland Scales, to put forth its own experts to cast doubt on this reliance, and to file post-hearing motions requesting that the court discount or disregard Dr. Denney's testimony on this basis. For now, however, the court is not in a position to categorically preclude Dr. Denney from administering the adaptive functioning tests on Wilson, and doubts that their mere use will cause significant harm to the defense's case. Cf. United States v. Hardy, 644 F.Supp.2d 749, 751 (E.D.La.2008) ("Hardy I") (refusing to "restrict the scope of the [Government's] examination" because the court was "not in a position to know what lines of inquiry are appropriate from the standpoint of the experts," and noting that the defense could later "object to the admission of any conclusions by the
Moving on to Wilson's specific arguments in favor of preclusion of the tests, the court first finds that although the medical literature cited by the defense cautions against placing too much emphasis on a defendant's self-ratings, most of this literature does not flatly oppose any adaptive functioning testing of the defendants themselves, and, indeed, appears to contemplate at least some limited reliance on such testing. See, e.g., AAIDD Manual at 51-52 ("Self-ratings of individuals ... may contain a certain degree of bias and should be interpreted with caution when determining an individual's level of adaptive behavior.... [T]he authors of this manual caution against relying heavily only on the information obtained from the individual...." (emphases added)); Marc J. Tasse, Adaptive Behavior Assessment and the Diagnosis of Mental Retardation in Capital Cases, Applied Neuropsychology 16: 2, 114, 119 (2009) ("Relying solely on the individual's self-report is fraught with problems." (emphasis added)); Kay B. Stevens and J. Randall Price, Adaptive Behavior, Mental Retardation, and the Death Penalty, 6 J. of Forensic Psych. Practice 1, 17 (2006) ("To accept a criminal defendant's self report without skepticism is forensically naive and constitutes a deviation from acceptable practice that may result in unreliable data." (emphasis added)). To be sure, some of the literature the defense cites does speak in more absolute terms. See, e.g., Keith Widaman and Gary Siperstein, Assessing Adaptive Behavior of Criminal Defendants in Capital Cases: A Reconsideration, Am. J. of Forensic Psych., Vol. 27, Issue 2, at 5, 27 (2009) ("Courts should never use [self-report] assessments ... as evidence in a high-stakes court proceeding that determines mental retardation."). But the court sees no reason at this stage to give more weight to the absolutist literature than to the cautionary literature.
Second, the court finds premature the defense's argument that the ABAS-II and Vineland Scales have not been normed for individuals with mental retardation. (See Def. Mem. at 5-6.) The defense cites a number of sources for the general proposition that an instrument must be appropriately normed for the relevant population before it may properly be used to measure adaptive behavior (see id. at 5), but the support it provides for its argument that the ABAS-II and Vineland Scales themselves have not been appropriately normed for mentally retarded individuals is (1) not overwhelming and (2) in part the opinions of its own experts (see, e.g., id. at 6 (citing J. Gregory Olley and Ann W. Cox, Assessment of Adaptive Behavior in Adult Forensic Cases: The Use of the Adaptive Behavior Assessment System-II, in Thomas Oakland and Patti L. Harrison, Adaptive-Behavior Assessment System-II: Clinical Use and Interpretation 390 (2008)).) Presumably, if Dr. Denney ultimately decides to use these tests on Wilson, he will have determined that the tests are capable of producing meaningful results when employed on mentally retarded individuals. The court lacks sufficient information at this time to decide whether such a determination would be incorrect.
Third, and for similar reasons, the court is unconvinced by the defense's argument that Dr. Denney should be prohibited from using the ABAS-II and Vineland Scales on Wilson because Wilson is currently living in prison. (See Def. Mem. at 6-9.) The defense is correct that the relevant issue is not Wilson's present adaptive functioning in prison but rather his functioning, prior to age eighteen, "in a typical community setting, such as home, school or work." (Id. at 7.) See also AAIDD, User's Guide: Intellectual Disability: Definition, Classification,
762 F.Supp.2d at 881. Once again, Dr. Denney is likely aware of the potential challenges incarceration may present, and believes that an accurate assessment in this context is possible. (See Gov't Mem. at 24.) The court is not yet in a position to conclude that he is wrong.
In sum, although the court appreciates the concerns inherent in the administration of the ABAS-II and Vineland Scales on Wilson, the court concludes that the arguments put forth by the defense are insufficient to categorically preclude Dr. Denney from conducting those tests. The defense may re-raise its arguments at or after the Atkins hearing.
Next, Wilson raises a number of objections to the scope of the Government experts' proposed interviews of Wilson and the number of examinations they plan to conduct. (Def. Mem. at 9-16.) The court finds each of these objections to be either premature or without merit.
First, Wilson argues that "the government should be entitled to one examination, not two." (Id. at 11.) He relies upon United States v. Fell, 372 F.Supp.2d 753 (D.Vt.2005), in which the court stated that "Rule 12.2 gives the government the ability to select one expert, not three," id. at 761,
There is, however, no hard-and-fast rule requiring a specific number of experts in an Atkins proceeding, and the court finds that the gravity and complexity
Second, Wilson objects specifically to the Government's proposal that psychiatrist Dr. Raymond Patterson interview Wilson. (See Def. Mem. at 11-12.) The Government has indicated that, "[d]uring these meetings, Dr. Patterson intends to conduct a standard psychiatric examination of the defendant, which will include questioning about the defendant's psycho-social, family, medical, educational, employment and criminal histories," as well as a "formal Structured Clinical Interview, as that term is used in the context of the detection of DSM-IV disorders." (Gov't Ltr. of May 2, 2012, at 1-2.) The defense argues, based on Dr. Patterson's Curriculum Vitae ("CV") (See Def. Mem. at 10), that as a general and forensic psychiatrist, "Dr. Patterson does not appear to have any expertise in intellectual disability examinations" (id. at 11). Further, it argues, a standard psychiatric examination to detect DSM-IV disorders is "unnecessary and irrelevant" because "the DSM-IV-TR itself is clear that `[t]he diagnostic criteria for Mental Retardation do not include an exclusion criterion; therefore, the diagnosis of mental retardation should be made whenever the diagnostic criteria are met, regardless of and in addition to the presence of another disorder.'" (Def. Mem. at 11 (quoting DSM-IV-TR at 47).) See also Lewis, 2010 WL 5418901, at *32; Davis, 611 F.Supp.2d at 485.
The court disagrees. For one thing, the Government represents that "Dr. Patterson is exceedingly qualified to evaluate the defendant for mental retardation" (Gov't Mem. at 26), and the court is not prepared to draw a contrary conclusion based merely on Dr. Patterson's CV. The defense may raise its argument about Dr. Patterson's qualifications in a Daubert motion or on cross-examination. Moreover, although the defense is correct that the presence of additional DSM-IV disorders does not exclude a diagnosis of mental retardation, the court is not convinced that a standard psychiatric examination would be irrelevant. As the court in Lewis pointed out, "individuals with intellectual disability are three to four times more likely to have comorbid mental disorders than the general population." 2010 WL 5418901, at *32. To the extent that the existence of additional DSM-IV-TR disorders might support a diagnosis of mental retardation, the Government's experts should have this information as part of a thorough and complete analysis of Wilson's mental state. Indeed, it appears that Dr. Gordon Woods, one of the defendant's experts, has already conducted a standard psychiatric interview of Wilson. (Def. Ltr. of Mar. 7, 2012, at 4.) Dr. Patterson should have the same opportunity.
Third, Wilson argues that, "to the extent that the government proposes to have either Dr. Denney or Dr. Patterson question Mr. Wilson about `current living situation and activities, and current mental status related issues,' such questioning is simply irrelevant to the Atkins issue." (Def. Mem. at 12.) The court rejects this argument for similar reasons discussed
Wilson's final objection to the scope of the Government's proposed testing is that Dr. Denney and Dr. Patterson should not be permitted to "question Mr. Wilson about criminal history[] and prison records" because: (1) "such questioning is irrelevant to the Atkins issue before the court"; and (2) "questioning him about such activities would violate his Fifth Amendment rights." (Def. Mem. at 13-14 (emphasis and internal quotation marks omitted).) The court is not persuaded by either of these reasons.
With respect to relevance, the court agrees with the defense that there is substantial medical literature suggesting that past criminal behavior should not be used to assess adaptive functioning. See, e.g., AAIDD Manual at 103; AAIDD User's Guide at 291. However, the Government represents that its "experts ... disagree with the defendant's assessment of the value of this information," (Gov't Mem. at 27-28), and cites its own literature stating that "[r]ecords regarding a defendant's ... criminal history ... can be quite illuminating regarding historical adaptive functioning," Gilbert S. MacVaugh III and Mark D. Cunningham, Atkins v. Virginia: Implications and Recommendations for Forensic Practice, J. of Psych. & Law, Vol. 37, at 162 (2009).
The court also disagrees with the defense's argument that questioning Wilson regarding his past crimes would violate his Fifth Amendment privilege against self-incrimination.
Compelling a criminal defendant to submit to a psychiatric examination may violate the Fifth Amendment where the defendant has not placed his mental state at issue. See, e.g., Estelle v. Smith, 451 U.S. 454, 468, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). But when the defendant initiates a "defense of mental incapacity or disturbance," he makes a limited waiver of his Fifth Amendment rights that permits the Government to conduct an examination of the defendant as a "rebuttal to the psychiatric defense." Gibbs v. Frank, 387 F.3d 268, 274 (3d Cir.2004) (citing Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987)); see also United States v. Williams, 731 F.Supp.2d 1012, 1017 (D.Haw.2010) ("When a defendant raises a defense that relies on an expert examination of his mental condition, the Fifth Amendment does not protect him from being compelled to submit to a similar examination conducted on behalf of the prosecution....").
The defense acknowledges that this limited waiver permits the Government to interview Wilson. (See Def. Mem. at 14.) It argues, however, that because "Wilson's criminal conduct is not germane to the issue of mental retardation, questioning him about such activities" should not be considered part of a "rebuttal" of his Atkins defense and thus "would violate his Fifth Amendment rights." (Def. Mem. at 14.) See also Gibbs, 387 F.3d at 274. At the same time, according to the defense, there is a danger that Wilson will reveal to the Government crimes that have not yet been charged, which the Government could then use at the penalty phase retrial in support of an aggravating factor of future dangerousness. (Def. Mem. at 15.)
The defense's argument with respect to Wilson's Fifth Amendment rights is contingent upon its argument that Wilson's past criminal activities are irrelevant to whether he is mentally retarded, and the court's rejection of the former leads it to reject the latter. Because information about Wilson's past crimes is potentially relevant, questions designed to elicit that information are properly considered part of a comprehensive "rebuttal" to Wilson's Atkins defense, and thus fall within the scope of Wilson's limited Fifth Amendment waiver. Gibbs, 387 F.3d at 274; see also Williams, 731 F.Supp.2d at 1017. Moreover, given that Wilson's criminal history was so heavily vetted and litigated during his 2006 penalty phase, the court considers speculative the defense's fear that the Government will learn of criminal activity of which it is currently unaware. See Estate of Fisher v. C.I.R., 905 F.2d 645, 649 (2d Cir.1990) ("The danger of self-incrimination must be real, not remote or speculative."). And, to the extent that Wilson does indeed reveal additional criminal activity, he may later seek to preclude the Government from presenting this evidence either at the Atkins hearing or at the
The defense demands that the Government be more specific regarding three categories of tests its experts plan to use on Wilson: (1) the tests Dr. Denney plans to conduct to determine whether Wilson is malingering; (2) Dr. Denney's planned "reading comprehension testing"; and (3) Dr. Patterson's planned "formal Structural Clinical Interview." (Id.; see also Gov't Ltr. of Apr. 6, 2012, at 2; Gov't Ltr. of May 2, 2012, at 1.) The defense argues that there are many different kinds of tests in the categories the Government describes, and that the Government's "broad" descriptions of those tests "fail[] to give [the defense] notice so that [it] may lodge objections if necessary," particularly to those tests that "have not been demonstrated to be appropriate for those with significantly low cognitive abilities." (Def. Mem. at 16.) The Government suggests in response that, "given the anticipated fluidity of [a] neuropsychological interview," its experts are not able at this time to identify the precise tests it will employ because those decisions "will be dependent on the circumstance of the interview."
The court takes the Government at its word that its experts do not yet know exactly which tests they plan to conduct, and does not anticipate that the defense will be prejudiced if it is unable to bring objections to the various tests until after they are actually conducted, particularly because the defense presumably will not be preparing Wilson for the tests.
Finally, Wilson requests "that defense counsel be permitted to be in the room when [Wilson] is tested and interviewed by government expert(s)," in order "protect his Fifth Amendment right to remain silent as to matters beyond the scope of the hearing, and to effectuate his Sixth Amendment rights" by "advis[ing] him and [] interpos[ing] appropriate objections." (Def. Mem. at 17-18.) In the alternative, Wilson requests: (1) "that during the government's administration of formal test instruments counsel be given a nearby venue in which to sit and monitor the proceedings, with an audio feed, so that counsel has an opportunity to object"; and (2) "that the government examination(s) be
As discussed in Part II.B.2.b(4), the court does not believe that the examinations the Government plans to conduct pose a serious danger to Wilson's Fifth Amendment rights — or at least a danger that cannot be addressed through post-examination motions — and therefore sees little need for counsel to be present to protect those rights. Moreover, the Sixth Amendment does not require that a defendant be permitted to have counsel present at a mental examination conducted to rebut a psychiatric defense he has initiated; the Supreme Court has held only that counsel must be "notified in advance" of the examination so that counsel may advise the defendant regarding "the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed." Estelle, 451 U.S. at 471, 101 S.Ct. 1866 (emphasis added); see also Buchanan, 483 U.S. at 424-25, 107 S.Ct. 2906 (no Sixth Amendment violation where the defendant's attorney did not attend a psychiatric evaluation because counsel was "informed about the scope and nature of the proceeding" and was therefore "on notice that if ... he intended to put on a `mental status' defense for [defendant], he would have to anticipate the use of psychological evidence by the prosecution in rebuttal"); Hollis v. Smith, 571 F.2d 685, 691-92 (2d Cir.1978). Such notice has of course already occurred in this case.
At the same time, the court finds compelling the Government's representation that, according to its experts, "the presence of third parties during examinations can be disruptive and have adverse effects on the performance and outcome of the evaluation." (Gov't Mem. at 32.) The Second Circuit and district courts in this Circuit have repeatedly denied requests by counsel to be present at mental examinations because of these precise effects. See, e.g., Hollis, 571 F.2d at 692 ("It is difficult to imagine anything more stultifying to a psychiatrist, as dependent as he is upon the cooperation of his patient, than the presence of a lawyer objecting to the psychiatrist's questions and advising his client not to answer this question and that."); United States v. Baird, 414 F.2d 700, 711 (2d Cir.1969) ("[T]he presence of a third party, such as counsel ..., at [a mental] examination tends to destroy the effectiveness of the interview."); Marsch v. Rensselaer Cty., 218 F.R.D. 367, 371 (N.D.N.Y. 2003) ("In federal court, [] the attendance of a subject's counsel or other observer is generally prohibited unless required by unusual circumstances."); Equal Emp't Opportunity Comm'n v. Grief Bros. Corp., 218 F.R.D. 59, 63-64 (W.D.N.Y.2003) ("[F]ederal law generally rejects requests that a party's attorney attend a [mental] examination."); Baba-Ali v. City of N.Y., No. 92-CV-7957 (DAB)(THK), 1995 WL 753904, at *2 (S.D.N.Y. Dec. 19, 1995) ("The weight of authority is clearly against the presence of counsel at a[ mental] examination.").
Defense counsel proposes to alleviate these problems by "sitt[ing] out of Wilson's sight and remain[ing] silent except when imposing an objection." (Def. Mem. at 18.) But that option — which presumably would have been available in each of the cases cited above — still leaves us with the problem that the defense might pose objections, and that those objections (1) would interfere with the examinations, (2) would likely be meritless given the court's conclusions about Wilson's Fifth Amendment rights, and (3) could be made just as effectively after the examinations are over, in the event that the Government seeks to introduce evidence from the examinations that the defense believes would violate
The court draws the same conclusions regarding the defense's alternative request that counsel be permitted to monitor the proceedings using an audio feed and to videotape the examinations. (Def. Mem. at 18-19.) These safeguards are unnecessary given the court's conclusions about Wilson's Fifth and Sixth Amendment rights, and are disfavored by courts for the same reasons that attorney presence is disfavored. Indeed, "[m]ost courts analyze a request for recording in the same way that they evaluate a motion to permit the presence of an attorney" because, while "recording is less intrusive than permitting a third-party to be present, it would still impede one-on-one communication between the patient and the [examiner] and tend to undermine the [examiner's] evaluator technique." Hirschheimer v. Associated Metals & Minerals Corp., No. 94-CV-6155 (JFK), 1995 WL 736901, at *4 (S.D.N.Y. Dec. 12, 1995); see also Lahar v. Oakland Cty., No. 05-CV-73920 (VAR), 2006 WL 2269340, at *8 (E.D.Mich. Aug. 8, 2006) ("[T]he majority of federal courts decline to allow either recording or an observer [in a mental examination] absent a showing of a special need or good reason."); Grief Bros., 218 F.R.D. at 64; but see Nelson, 2010 WL 2010520, at *3. The court agrees with the weight of authority that the recording of a mental examination changes its tenor and feel in such a way that could potentially undermine its effectiveness. And, because there are no specialized circumstances justifying a recording here, the court will not permit it.
For the reasons set forth above, the Government's motion for reconsideration of the court's February 13, 2012, Order is DENIED; and Wilson's motion concerning the Government's proposed testing is DENIED.
SO ORDERED.
APA, Diagnostic and Statistical Manual of Mental Disorders 49 (4th ed. 2000).
