United States v. Wilson

• Decision Date: 22 June 2012
• Docket Number: No. 04–CR–1016 (NGG).,04–CR–1016 (NGG).
• Citation: 920 F.Supp.2d 287
• Parties: UNITED STATES of America v. Ronell WILSON, Defendant.
• Court: U.S. District Court — Eastern District of New York

920 F.Supp.2d 287

UNITED STATES of America

v.Ronell WILSON, Defendant.

No. 04–CR–1016 (NGG).

United States District Court, E.D. New York.

June 22, 2012.

Carter H. Burwell, Colleen Elizabeth Kavanagh, Jack Smith, James G. McGovern, Jason Allen Jones, Celia Cohen, Shreve Ariail, United States Attorneys Office, Brooklyn, NY, for United States of America.

Colleen Quinn Brady, The Law Office of Colleen Quinn Brady, New York, NY, David Stern, Beverly Van Ness, Rothman, Schneider, Soloway & Stern, P.C., New York, NY, Michael N. Burt, Law Office of Michael Burt, San Francisco, CA, for Defendant.

MEMORANDUM & ORDER

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 of Criminal Procedure 12.2, to firewalled Government counsel in connection with Wilson's 2006 capital trial; and (2) prohibited the Government from relying on its previously retained mental health experts in connection with the Atkins hearing. Second, Wilson has filed a motion concerning the Government's proposed testing for the Atkins hearing, which: (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.

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.

I. BACKGROUND

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 hearing to take place on September 17, 2012—and addressed several issues the parties had raised with respect to aspects of this case beyond the Atkins motion. (Order of Feb. 1, 2012 (Docket Entry # 618).) The court decided that “resolution of the Atkins claim should precede litigation of other mental health issues.” ( Id. at 1.)

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).) ¹ The court denied the Government's motion for access to the Rule 12.2 material and prohibited the Government from reviewing or relying upon this material in connection with the Atkins hearing, on the grounds that the phrase “capital sentencing proceeding” in Rule 12.2(c)(4)(B) “was intended to refer to the penalty phase of a capital trial, not to an Atkins proceeding.” (February 13 Order at 6.) The court granted Wilson's motion to prohibit the Government from relying upon the Government's previously retained mental health experts in preparing for the Atkins hearing, but denied without prejudice Wilson's request that the Government be prohibited from relying upon these experts in all aspects of the penalty phase retrial (should such a trial occur after resolution of the Atkins claim). ( Id. at 7–8.)

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 access the materials disclosed in connection with Wilson's 2006 Rule 12.2 notice. The court asked the Government whether it wanted to move for reconsideration of the February 13 Order, and the Government responded that it did. On May 30, 2012, the Government filed a memorandum of law in support of a motion for reconsideration of the February 13 Order and in opposition to Wilson's motion. (Gov't Mem. (Docket Entry # 723).) Wilson submitted a memorandum of law in opposition to the Government's motion and in further support of his own motion. (Def. Reply (Docket Entry # 741).) The Government filed a letter addressing both motions. (Gov't Reply (Docket Entry # 767).)

II. DISCUSSIONA. The Government's Motion for Reconsideration

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.” ²Rollins v. N.Y. State Div. of Parole, No. 03–CV–5952 (NGG)(RLM), 2007 WL 539158, at *2 (E.D.N.Y. Feb. 16, 2007); see also Shrader, 70 F.3d at 257 (“[R]econsideration will...