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United States v. Mills

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

June 26, 2019

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

          ORDER DENYING THE GOVERNMENT'S MOTION TO COMPEL PRODUCTION OF RAW DATA AND INFORMATION PROVIDED TO DEFENSE EXPERTS (DKT. 942), AND ORDERING MUTUAL EXCHANGE OF INFORMATION ON JUNE 28, 2019

          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). If one or both of the Group Two Defendants anticipated seeking relief under Atkins, they were required to first file a notice by March 15, 2019. Id. at 1. The deadline for then filing a motion seeking relief under Atkins, including the disclosure of expert reports, was May 28, 2019. Id. at 2. The deadline for the Government to file a response to an Atkins motion is June 27, 2019. Id.

         In accordance with this new schedule, Defendant Carlo Wilson timely filed a notice of an Atkins claim (Dkt. 814), as well as his motion seeking relief under Atkins, including expert reports (Dkt. 930), which referenced results of neuropsychological tests and adaptive behavior analyses. According to the Government, these reports also referenced information Wilson provided defense experts.

         The Government has filed a motion to compel Wilson to disclose the raw data generated by his defense experts, as well as records and information Wilson provided to the defense experts (Dkt. 942). Wilson filed a response in opposition to the motion (Dkt. 959), suggesting that the parties mutually exchange raw data and documents on June 28, 2019, to which the Government replied (Dkt. 964). For the reasons stated below, the Court denies the Government's motion and orders the parties to exchange Atkins-related testing information, including all raw data underlying the experts' evaluations and analyses, as well as documents parties provided to the experts, on June 28, 2019.[1]

         A. Disclosure of Raw Data Generated by Defense Experts' Neuropsychological Testing of Wilson

         Regarding its request for the raw data underlying the defense experts' testing, the Government offers several reasons of why this information is important. For example, Dr. Hunter concludes that Wilson has a Full-Scale IQ score of 46, and, with a “Flynn” correction, the IQ value is 43. See Gov't Mot. at 8-9 (Dkt. 942). The Government claims it needs the underlying data because a National Academy of Science publication suggests that a person with an IQ score of 46 would require assistance in situations and support (such as living in a group home), which is inconsistent with Wilson's observed functioning. Id. at 9.

         However, the Government previously requested the disclosure of neuropsychological testing results and raw data. See Gov't Mem. at 9-11 (Dkt. 849). The Court denied that request on May 6, 2019. United States v. Mills, No. 16-cr-20460, 2019 WL 1987315, at *1-2 (E.D. Mich. May 6, 2019). Because it did not timely or properly seek reconsideration of that order under the Local Rules, see E.D. Mich. LR 7.1(h) (discussing timing and grounds for reconsideration), the Government has failed to demonstrate that it is entitled to this raw data. Therefore, this request is denied.

         B. Disclosure of Documents and Information Wilson Provided Defense Experts

         Regarding its request for the documents and information Wilson provided the defense experts, the Government offers more examples to explain why this information is relevant and should be disclosed. For instance, Wilson disclosed Social Security Administration records to his experts. Govt' Mot. at 11. The Government claims that, depending on the content of these records, they may provide either support or rebuttal to a claim of intellectual disability. Id. at 11-12.

         In support of its request, the Government contends that these documents must be disclosed in accordance with this Court's January 2, 2019, opinion, see id. at 4, 12-13, in which the Court ordered “Defendants to produce copies to the Government of any documents obtained through a [Federal Rule of Criminal Procedure 17(c)] subpoena or court order that they intend to introduce at trial at the same time they make their Rule 16 discovery available to the Government, ” United States v. Mills, No. 16-cr-20460, 2019 WL 76869, at *7 (E.D. Mich. Jan. 2, 2019). However, as Wilson notes in his response, the documents and information he provided defense experts were not obtained pursuant to a court order or Rule 17(c) subpoena. See Def. Resp. at 2 (Dkt. 959). Moreover, the Court's opinion clearly directed the disclosure of documents that Defendants intend to introduce at trial; the Court did hold that production was mandated for a pre-trial Atkins hearing. Therefore, the Government's reliance on the Court's January 2, 2019, opinion is misplaced.

         The Government also argues that these documents are discoverable under Federal Rule of Criminal Procedure 16(b) because this information “will inevitably by [sic] used at a penalty phase hearing.” Gov't Mot. at 15 (“‘Trial' includes both the guilty and penalty phases of a capital trial.”). The Court finds this argument unavailing.

         When it comes to information that a defendant is required to disclose, Rule 16(b)(1) provides:

(A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, ...

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