The opinion of the court was delivered by: Garaufis, District Judge
The Government alleges that Ronell Wilson ("Wilson" or "Defendant") murdered undercover New York Police Department ("NYPD") Detectives Rodney Andrews ("Detective Andrews") and James Nemorin ("Detective Nemorin") on March 10, 2003. Based on these and other allegations, Wilson is charged with two counts of murder in aid of racketeering, two counts of robbery conspiracy, one count of attempted robbery, one count of carjacking, two counts of use of a firearm, and two counts of causing death through use of a firearm. (See Second Superseding Indictment, Docket Entry No. 179.) The Government is seeking the death penalty against Wilson. Trial will begin on November 27, 2006.
Before the court are two motions submitted by each party. The Government moves for orders (1) directing Wilson to disclose immediately the statutory and non-statutory mitigating factors he intends to establish at the penalty phase of this case, if any, and (2) precluding Wilson from cross-examining Government witnesses about certain subjects. Wilson moves for orders (1) directing the Government to identify, outside the presence of the jury, all "life portrait" photographs it will seek to introduce into evidence and excluding from this trial, including the penalty phase, if any, "all such photographs that are irrelevant, cumulative or otherwise unnecessary" and (2) precluding the Government from offering into evidence a chart containing statistics about firearms recovered by the NYPD.
For the reasons set forth below, the Government's motions are GRANTED in part and DENIED in part and Wilson's motion to preclude "life portrait" photographs is DENIED. The court is not in a position to rule on the Government's motion to preclude Wilson from questioning a particular cooperating witness about the witness's mental health at the time of the events as to which the witness will testify. It will rule on that motion after hearing further from the parties as to what information, if any, would support Wilson's request to permit such questioning. The court will require an offer of proof by the Government, outside the presence of the jury, before ruling on Wilson's motion to preclude introduction of the chart containing statistics about firearms recovered by the NYPD.
I. The Government's Motions
The Government moves for "disclosure of the specific mitigating factors upon which the defendant intends to rely during the sentencing phase of the trial." (Govt. Ltr. to Judge Garaufis dated Nov. 20, 2006 at 1.) Such disclosure is not required by statute, although it is not prohibited by any statute.*fn1 I find that this court has the statutory discretion to grant the Government's motion and that it is appropriate to do so in this case.
In setting forth the procedure that will apply in the penalty phase, federal law provides that "[t]he government and the defendant shall be permitted to rebut any information received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating or mitigating factor[.]" 18 U.S.C. § 3593(c). I find that in order for the Government to have the "fair opportunity" required by statute, it is necessary that the Government have notice of the mitigating factors that Wilson intends to prove.
Wilson has been preparing for this trial since he was arrested in March 2003. Two of the three lawyers assigned to represent him have been doing so since he was arraigned in New York Supreme Court, Richmond County. (Sharkey Ltr. to Judge Garaufis dated December 7, 2004 at 1.) They have had an extensive opportunity to develop Wilson's defense, including the identification and preparation of mitigating factors, during that period. It should come as no surprise to Wilson that the Government seeks notice sufficient to permit it to rebut information offered by Wilson in the penalty phase of this case. Furthermore, Wilson will not be prejudiced in any way by providing such notice.
I also find that this court has the authority to order Wilson to provide such notice. Fed. R. Crim. P. 16(d)(1) provides that "[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief." Fed. R. Crim. P. 57(b), entitled, "Procedure When There Is No Controlling Law," provides that "[a] judge may regulate practice in any manner consistent with federal law[.]" Because there is no controlling law on the issue of notice to the Government of Wilson's mitigation factors prior to the penalty phase, this court may regulate the parties' practice as to such notice and may grant the Government the discovery it seeks.
Wilson is ordered to provide the Government a list of all mitigating factors that he currently intends to attempt to prove in the penalty phase of this case, if any. Wilson shall provide this list by December 1, 2006. The list shall be sufficiently detailed to make clear the scope of each listed factor. If it becomes necessary for Wilson, based on evidence presented at trial, to introduce evidence of additional factors not contemplated on or before December 1, 2006, he may apply to the court in a timely manner for permission to introduce such evidence.
The Government moves to preclude Wilson from asking questions about three subjects on cross-examination. This motion is granted in part and denied in part, and a decision as to one aspect of the motion is ...