The opinion of the court was delivered by: Garaufis, District Judge
The Government alleges that Ronell Wilson ("Wilson") 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 began on November 27, 2006.
On June 8, 2006, this court, acting pursuant to Fed. R. Crim. P. 12.2, ordered Wilson to provide to a firewalled Assistant United States Attorney (i.e., an attorney who is not part of the team prosecuting this case in its trial phase*fn1 ) the following items:
(1) a written summary of expert testimony that Wilson intends to introduce in the penalty phase of this case, if any, concerning his mental condition; (2) the results of tests and reports of examinations administered upon Wilson that support the opinions of Wilson's mental condition expert(s); and (3) raw data received by Wilson's mental condition expert(s). (Order dated June 8, 2006 at 26.)
On November 24, 2006, this court, acting pursuant to 18 U.S.C. § 3593 and Rules 16 and 57 of the Federal Rules of Criminal Procedure, ordered Wilson to provide to the Government a list of all mitigating factors that he intends to attempt to prove in the penalty phase of this case, if any. (Order dated November 24, 2006 at 2-4.) Wilson provided such a list to the Government but noted that the list "should not be disclosed to the 12.2 firewalled attorney or experts working with him." (Sealed Wilson Ltr. to Judge Garaufis dated December 1, 2006 at 1.)
On December 6, 2006, the Government indicated that despite Wilson's admonition, it intended to provide Wilson's list of mitigating factors to the Firewalled AUSA. (Tr. at 1769.) Wilson then orally moved the court to preclude the Government from doing so. (Id. at 1770-74.) That motion is DENIED.
Firewalls such as the one used in this case serve two purposes: (1) "to avoid impermissible use by the government [in the trial phase] of the information obtained from the [mental condition] examinations" and (2) "to prevent delay at the sentencing stage if the defendant [chooses] to introduce evidence regarding mental condition as a mitigating factor."
U.S. v. Karake, No. 02-CR-0256 (ESH), 2006 WL 623676, at *1 (D.D.C. March 6, 2006) (citing U.S. v. Johnson, 362 F. Supp. 2d 1043, 1083 (N.D. Iowa 2005); U.S. v. Sampson, 335 F. Supp. 2d 166, 245 (D. Mass. 2004)). These purposes are best served by denying Wilson's motion.
The first purpose of the firewall is implicated only when information flows from the Firewalled AUSA to the Government, not vice-versa. Wilson argues that he will be unfairly prejudiced if the Government discloses his mitigating factors to the Firewalled AUSA, but his argument is belied by the only example offered in support. Wilson stated that he has already been prejudiced because the Government questioned both cooperating witnesses who have testified thus far about their histories of family abuse, ostensibly in order to establish a contrast between the effect of abuse on the cooperators and its effect on Wilson. (Tr. at 1771.) This example makes clear that Wilson's concern is the potential improper use of his mitigating factors during the trial phase of this case, a concern not implicated by permitting the Firewalled AUSA to consider a list of Wilson's mitigating factors.*fn2
The Government has long been aware of the mental health issues that Wilson intends to raise in the penalty phase of this case. Six months ago, this court, acting pursuant to Fed. R. Crim. P. 12.2(b), ordered Wilson "to inform the Government [of] the kinds of mental health experts [he] anticipates calling at the penalty phase and the nature of the tests those experts have performed or may be expected to perform." (Order dated June 8, 2006 at 7.) The Government does not, however, have access to the raw data considered by those experts or the opinions they have formed based on that data (id. at 26), and so cannot use that data or those opinions in the trial phase of this case. In addition, neither the Government nor the Firewalled AUSA may use that data or those opinions in the penalty phase unless Wilson first introduces expert evidence relating to a mental condition that bears on the issue of punishment. Fed. R. Crim. P. 12.2(c)(4)(B). Wilson's concern about prejudice is therefore unwarranted.
The second purpose of the firewall -- "prevent[ing] delay at the sentencing stage if the defendant [chooses] to introduce evidence regarding mental condition as a mitigating factor," Karake at *1 -- is served by permitting the Government to provide Wilson's list of mitigating factors to the Firewalled AUSA. Wilson may introduce mental condition evidence to prove any number of mitigating factors, including impaired capacity to appreciate the wrongfulness of his conduct, 18 U.S.C. § 3592(a)(1), impaired capacity to conform his conduct to the requirements of law, id., unusual and substantial duress, 18 U.S.C. § 3592(a)(2), severe mental or emotional disturbance while committing the offense, 18 U.S.C. § 3592(a)(6), and any "[o]ther factors in the defendant's background, record, or character or any other circumstances of the offense that mitigate against imposition of the death sentence," 18 U.S.C. § 3592(a)(8). Evidence of Wilson's mental condition will obviously be more useful to the Government -- and therefore to the jury -- if it understands the purpose for which Wilson will introduce that evidence. It would therefore serve the interests of justice to permit the Government to provide the list of Wilson's mitigating factors to the Firewalled AUSA, who will then be in a position to consider whether those factors suggest that some mental examination is or is not warranted.
This court must permit the Government "to rebut any information received at the [penalty] hearing" and "fair opportunity to present argument as to the existence of any aggravating or mitigating factor." 18 U.S.C. § 3593(c). If the Firewalled AUSA is not permitted to review Wilson's mitigating factors now, the Government may later find that it needs to conduct additional examinations of Wilson's mental condition in order to rebut information Wilson introduces in the penalty phase. The court would be obligated by statute to permit such examinations. Providing Wilson's mitigating factors to the Firewalled AUSA ...