Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2107

Filed 01/02/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant. ________________________________________________________________________ WILLIAM SABLAN'S RESPONSE TO THE GOVERNMENT'S MOTION TO CONDUCT MENTAL EXAMINATION

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Defendant William Sablan ("William"), through undersigned court-appointed counsel, respectfully requests that this Court deny the government's untimely motion for permission to conduct a Rule 12.2 psychiatric examination of William (Document 1201). As grounds, counsel state: 1. On March 30, 2006, William timely filed his "Notice Pursuant to

F.R.Crim.P. 12.2(b)", notifying the Court and government that he intended to introduce expert testimony and evidence relating to mental disease, defect or other mental condition bearing on the issues of guilt and punishment (Document 1740). 2. Rule 12.2(c)(1)(B) states that "[i]f the defendant provides notice under

Rule 12.2(b) the court may, upon the government's motion, order the defendant to be examined under procedures ordered by the court." The language of the rule is permissive, that is, the court may, but is not required to, allow a government examination.

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3.

The government now invokes Rule 12.2(c)(1)(B) and seeks the Court's

permission for a mental examination.1 This request comes nine months after William's notice was filed and only three weeks before the trial is set to commence.2 Moreover, it was filed at 8:35 p.m. on Friday, December 29, 2006, the eve of a three-day holiday weekend. This conduct reeks of gamesmanship and the motion should be summarily denied as untimely. 4. The government states that it seeks permission to have Dr. Daniel Martell

conduct a mental examination "[i]n order to rebut [defense] expert testimony effectively..." (Gov Mtn ¶ 4). It then cites five cases that stand for the proposition that the government should be given notice when the defense anticipates presenting mental health experts. The cases predate the 2002 Amendments to Rule 12.2, which now require notice to the government. They offer nothing to excuse the government's failure to act timely upon its receipt of William's notice. 5. United States v. Sampson, 335 F.Supp.2d 166, 246 (D. Mass.2004) is one

of the few cases dealing with Rule 12.2 after its 2002 amendments. As the government has pointed out, it notes that "[t]he overarching purpose of Rule 12.2 is to place the parties on a level playing field regarding the development of mental health evidence." In

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This response only addresses whether the examination should be permitted. There are, of course, myriad issues that must be resolved concerning any psychiatric examination conducted by the government if the Court permits such an examination, including, among other things, what mental health evidence the government hopes to rebut, the specific tests to be administered by Martell, the scope of the examination to be conducted by Martell, the topics or areas of inquiry that are permissible and those that are not, Martell's credibility and qualifications as an expert, whether William's lawyers or other representations may be present during the examination, whether the examination is to be recorded and if so how, and the time, place and duration of the examination.

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Prospective jurors have already filled out preliminary questionnaires and are to report within days to complete additional questionnaires.

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this case, however, the playing field is already even. Drs. Herbel, Gourley, and Cochrane had William in their custody and under their observation at Butner from July 12, 2004 to June 20, 2005. They did an extensive evaluation of William, not only for purposes of determining whether he was competent to proceed, but also for purposes of providing him with treatment.3 Ignoring this fact, the government's motion states that Martell will perform "psychological and neuropsychological testing similar to that performed by defense experts Poch and Manguso" (Gov Mtn ¶ 5). Poch's and Manguso's testing included WAIS, as well as a conventional battery of neuropsychological tests. These same tests were repeated by Drs. Herbel, Cochrane and Gourley. Thus, if the government's representation is accurate, Dr. Martell would just be repeating testing already performed by government experts. 6. The motion fails to specify whether the requested examination would be

designed to generate expert testimony to be used at the guilt/innocence trial, or at the penalty phase, or both. In any event, its request is not only untimely, but also unfairly prejudicial to William's due process right to a fair trial and sentencing hearing. (a) Because the government still has not endorsed Martell for either the guilt/innocence trial or the penalty phase, and presumably will not do so until Martell examines William and prepares a report of his opinions, with each passing day the defense finds itself nearer to trial, but still having no idea of the fundamental contours of the government's case. (b) The government proposes that the examination take place during the week of January 8, 2007. Formal questioning of jurors, however, is set to
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Moreover, the government used Dr. Herbel as its only witness in the Atkins hearing. The Court's Order commented favorably on Dr. Herbel's credibility.

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commence on January 22, 2007. If Martell is permitted to testify at the guilt/innocence trial, it is all but guaranteed that defense counsel will be forced to select a jury before Martell's opinion is disclosed and/or before they can consult with William's experts regarding it. Particularly because this is a capital case, jury selection should not begin when there is such uncertainty as to how the evidence will unfold.

(c) The defense has prepared its case on the assumption that the government would not be calling any mental health experts in the guilt/innocence trial. There can be no question but that this assumption was well-founded, not only because the government has failed to properly endorse any such experts, but also because the government never disabused William of this assumption despite repeated opportunities and invitations to do so.

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The time for the government to have sought a mental examination under

Rule 12.2(c)(1)(B) elapsed long ago. This case has been pending for six years. The government was made aware of William's mental health issues many years ago. It is well within this Court's sound discretion to deny the government's motion. WHEREFORE, William respectfully requests that the Court deny the government's motion to conduct a mental examination. Dated: January 2, 2007

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Respectfully submitted, /s/ Patrick J. Burke Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on January 2, 2007, I electronically filed the foregoing Response with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] /s/ Jennifer J. Feldman Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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