United States District Court, E.D. Michigan, Southern Division
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
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
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.
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.
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,
Disclosure of Raw Data Generated by Defense Experts'
Neuropsychological Testing of Wilson
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.
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.
Disclosure of Documents and Information Wilson Provided
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.
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.
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.
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, ...