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United States v. Mills

United States District Court, E.D. Michigan, Southern Division

May 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWIN MILLS, et al., Defendants.

          ORDER OVERRULING DEFENDANT CARLO WILSON'S OBJECTIONS (Dkt. 860) TO THE GOVERNMENT'S PROPOSED NEUROPSYCHOLOGICAL TESTING (Dkt. 849), AND DENYING THE PARTIES' TESTING-RELATED REQUESTS

          Mark A. Goldsmith United States District Judge

         On December 12, 2018, the Court amended the Group Two Defendants' scheduling order and set a briefing schedule for any motion seeking relief under Atkins v. Virginia, 536 U.S. 304 (2002), and its progeny. See 12/12/2018 Order (Dkt. 652). As part of the new schedule, if one or both of the Group Two Defendants filed a notice of an Atkins claim by March 15, 2019, the Government was directed to file a memorandum by March 27, 2019, which would identify the neuropsychological experts upon whom it intends to rely in opposition to any Atkins motions, include those experts' curricula vitae, and give notice of the type and scope of the proposed neuropsychological testing. See 12/12/2018 Order at 1-2. Defendants were then afforded an opportunity to file objections to the Government's proposed neuropsychological testing by April 3, 2019, and the Government could respond to those objections by April 10, 2019. Id. at 2.

         In accordance with this schedule, after Defendant Carlo Wilson filed a notice of an Atkins claim (Dkt. 814), the Government filed its memorandum (Dkt. 849), setting forth numerous tests that its expert-Dr. Robert L. Denney, Psy.D., ABPP-proposes to conduct. Included among those tests are the Minnesota Multiphasic Personality Inventory-2-RF, the Adaptive Behavior Assessment System-3 Self-Report, and Performance Validity Testing. The Government also requests that Wilson disclose the results and raw data of the testing his experts performed.

         Wilson filed objections to those three tests, as well as opposing the Government's disclosure request (Dkt. 860). Wilson also requested that defense counsel be present during all or some of the Government's neuropsychological testing, and that the Government's testing be video recorded. The Government then responded (Dkt. 870), and Wilson replied (Dkt. 876). At the Court's direction, the Government filed a supplemental brief with the scholarly literature alluded to by Dr. Denney regarding third-party observers and their effects on testing validity (Dkt. 892), to which Wilson replied (Dkt. 908).[1]

         Accordingly, there are three issues raised in the parties' filings that require the Court's resolution: (i) the Government's request for the disclosure of testing results and raw data; (ii) Wilson's objections to the Minnesota Multiphasic Personality Inventory-2-RF, the Adaptive Behavior Assessment System-3 Self-Report, and Performance Validity Testing; and (iii) Wilson's requests for a third-party observer during the Government's testing (both defense counsel and video recording). The Court will address each issue in turn, denying the Government's request, overruling Wilson's objections, and denying Wilson's requests.

         A. The Government's Request for Disclosure of Testing Results and Raw Data

          In its memorandum, the Government first claims that it cannot identify all potentially necessary neuropsychological testing without Wilson disclosing the results and raw data of tests that have been conducted thus far. Gov't Mem. at 9. Because he filed a notice of an intellectual disability, the Government claims that Wilson has put his mental health “in issue” and, therefore, he has waived any privilege he had to his medical and psychological records as it relates to the Atkins claim. Id. at 10. Thus, the Government requests that Wilson be compelled to disclose the test results and raw data. Id. at 11. The Government emphasizes that it is not seeking expert reports that may have been prepared based on the testing results and raw data. Id.

         In his objections, Wilson recognizes that the “timing surrounding disclosure of the requested material was already argued by the parties and contemplated by the Court when the Court issued its Scheduling Order.” Def. Objs. at 20. According to Wilson, the Government's “request is nothing more than an attempt to circumvent the Court's Order and obtain material prior to the date on which it is due.” Id. Thus, Wilson requests that the Court “reject the Government's invitation to relitigate issues already decided.” Id.

         Wilson's point is well founded; the Government should have addressed the disclosure of testing results and raw data earlier during the numerous conferences held concerning the parties' Atkins litigation. Therefore, the Government's belated request for this material is denied.

         B. Wilson's Testing Objections

         1. Minnesota Multiphasic Personality Inventory-2-RF

         In its list of proposed neuropsychological testing, the Government includes the Minnesota Multiphasic Personality Inventory-2-RF (“MMPI-2-RF”). Gov't Mem. at 6.[2] Wilson objects to the Government's use of this test, which consists of true-false questions, claiming that MMPI-2-RF “is an actuarial tool which is commonly used to assess personality disorders and malingering.” Def. Objs. at 4. But whether a person has a personality disorder is “irrelevant to the determination of whether he is a person with [an intellectual disability].” Id. Nor is the MMPI-2-RF appropriate to assess malingering for people with an intellectual disability. Id. This is especially problematic, says Wilson, because the test requires “at least a 6th grade reading level and a level of literacy which most people with [intellectual disability] have not achieved.” Id. at 6. Although alternative administrations of the test are available, such as a computerized version with audio that reads the questions aloud to the examinee, Wilson claims that “this version has not been validated for use by people with [intellectual disability].” Id. Wilson further states that test is biased with discriminatory results because the “MMPI-2 over-pathologizes African American men, identifying them as more antisocial, more likely to malinger and fake, more deviant, having more anger and more bizarre thinking, compared to white men.” Id. 8.

         In its response to Wilson's objections, the Government states that the MMPI-2-RF tests “emotional functioning, ” which “can interfere with the testing, and measurement, of the subject's intellectual functioning.” Gov't Resp. at 2. Accordingly, the Government claims that Dr. Denney “believes that this test will be useful, that it is an important element in conducting a broad-based assessment, and will assist him in reaching a professional opinion as to intellectual functioning.” Id. The Government further posits that MMPI-2-RF can be used for individuals of low intellectual functioning because “it has an auditory administration potential for low reading ability, and it has internal consistency-related validity indices which would demonstrate whether or not the examinee understood the items.” Id. at 3. As for Wilson's claim of bias, the Government claims that “[t]hree relatively recent MMPI-2-RF studies found very limited evidence of very limited bias, most of which involved under-prediction of psychopathology in minority groups.” Id.

         The Court overrules Wilson's objection to the Government's administration of the MMPI-2-RF. Because Wilson has failed to articulate any specific prejudice or tangible harm of the administration of the test itself, the Court finds that the test is not unnecessarily burdensome on Wilson. It is true that the MMPI-2-RF test has received criticism when assessing malingering in individuals with intellectual disability, e.g. Karen L. Salekin & Bridget M. Doane, “Malingering Intellectual Disability: The Value of Available Measures and Methods, ” Applied Neuropsychology, Vol. 16, at (2009) (“Across the board, all of the measures that were identified as either ‘recommended' or ‘acceptable' [for the assessment of malingering], have now been found to be [ ] unacceptable for use when assessing individuals with ID, ” including MMPI-2.). However, the ultimate issue of admissibility and weight of any such testing results can, and should, be addressed in the parties' Atkins briefing and argued at the Atkins hearing. See United States v. Roland, No. 12-298, 2017 WL 752831, at *3-4 (D.N.J. Feb. 27, 2017) (overruling the defendant's objection to the administration of the MMPI-2-RF, and noting that admissibility and weight will be argued at the parties' Atkins hearing).

         2. Adaptive Behavior Assessment ...


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