United States District Court, E.D. Michigan, Southern Division
VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE
the Court is a Government request to order the defense to
produce raw data on competency testing. [ECF No. 70 and 71]
Court declines the request.
Dr. Kenneth Chun (“Chun”) is charged with four
counts of health care fraud and six counts of distribution of
a controlled substance. The Indictment has been pending since
has been evaluated several times for competency to stand
trial: at FCI Butner, by his own health care professionals;
by a psychologist appointed by the Court.
recently, at the request of the Government, the Court entered
an order allowing for examination of Chun by a team of
professionals assembled locally by the Government.
latest order, the Court required that the “[e]valuation
and examination may include cognitive testing and may involve
active collaboration between the disciplines of psychology,
neuropsychology, and forensic psychology.” [ECF No. 67
at PageID.641] The Government expert is required to prepare a
Government selected Dr. Robert Denney, a board certified
clinical neuropsychologist and forensic psychologist. Dr.
Denney conducted an in-person competency evaluation on May
papers to the Court, the Government says
“The Defendant's test results were anomalous in
that the substance of his answers to questions varied from
question to question and overall his erratic pattern of
answering questions was inconsistent with any of the
diagnoses set forth by other practitioners in this case. His
pattern of answering questions and other materials reviewed
by Dr. Denney, including a report of the Defendant's EEG,
raised a concern that the Defendant was potentially
malingering.” [ECF No. 70 at PageID.658]
on these test results, the Government says that Dr. Denney
requires raw data of prior testing conducted by defense
experts and the court appointed expert. The Government
requested the data; the experts have declined to produce it.
the Government seeks a court order for the production of raw
data or, in the alternative, an adverse inference if the
experts continue to refuse to provide the data to Dr. Denney.
support its request, the Government says that Dr. Denney has
concerns that Chun may be malingering. He believes that a
review of the prior test data involving Chun would be useful
in reaching a final conclusion about Chun's competency.
defense opposes the request. It says the malingering
accusation is unwarranted. It says “the
Government's new position is inconsistent with every
expert in the past, including its own expert, Dr. Chavez, and