Free Motion for Psychiatric Exam - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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Filed 12/29/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S MOTION TO CONDUCT MENTAL EXAMINATION OF WILLIAM SABLAN

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, moves the Court to authorize Dr. Daniel Martell to perform a mental examination of William Sablan pursuant to Fed. R. Crim. P. 12.2(c)(1)(B). As grounds for this motion, the government states: 1. William Sablan has filed a Rule 12.2(b)(1) notice that he "will introduce expert testimony and evidence relating to a mental disease or defect or any other mental condition bearing on the issue of guilt." He has also filed a Rule 12.2(b)(2) notice that he "will introduce expert testimony and evidence relating to a mental disease or defect or any other mental condition bearing on the issue of punishment during the penalty phase of this capital trial."

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2. Rule 12.2(c)(1)(B) of the Federal Rules of Criminal Procedure 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 the procedures ordered by the court." 3. The defendant has endorsed numerous mental health experts: a. On December 18, 2006, the defendant notified the government that it may call in the liability or penalty phase Dr. Robert Scaer, a neurologist, who interviewed the defendant on December 14, 2006. Dr. Scaer's report is dated December 18, 2006. b. On December 18, 2006, the defendant notified the government that he may call in the liability or penalty phase Dr. Frank Fortunati, a psychiatrist, who met with the defendant in 2003 and 2005. Dr. Fortunati's report is dated December 16, 2006. c. On December 18, 2006, the defendant notified the government that he may call Dr. David Lovejoy, an expert in neuropsychology. The defendant has not provided a report for Dr. Lovejoy. d. On December 11, 2006, the defendant notified the government that he may call in the liability or penalty phase Dr. Kathey Verdeal, a toxicologist, who will testify regarding the effects of alcohol on the brain. The defendant has not provided a report of her opinions. e. On August 14, 2006, the defendant notified the government that he may call in the liability phase Dr. Todd Robert Poch, a psychologist. Dr. Poch has examined William Sablan on several occasions, most notably in 2001. The defendant's August 14,

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2006 notice stated that "We do not have a comprehensive report from Dr. Poch at this time. We will provide it to you upon receipt." The defendant has not yet provided this report. f. On August 14, 2006, the defendant notified the government that he may call in the liability phase Dr. James Jacobson, a psychiatrist. The defendant has not provided a report of his opinions other than to state that "Dr. Jacobson will testify regarding William's mental condition." g. On August 14, 2006, the defendant notified the government that he may call in the liability phase Dr. Rose Manguso, a psychologist. Dr. Manguso conducted a neuropsychological examination of the defendant in 2001. h. On August 14, 2006, the defendant notified the government that he may call in the liability phase Dr. Ruben Gur, a psychologist. i. On August 31, 2006, the defendant notified the government that he may call in the liability phase Dr. Charles Morgan, a psychiatrist. Dr. Morgan examined the defendant in June 2006. 4. In order to rebut such expert testimony effectively, the government needs to conduct an independent examination of the defendant. See, e.g., United States v. Catalan Roman, 376 F. Supp. 2d 108, 115-166 (D. P.R. 2005); United States v. Haworth, 942 F. Supp. 1406, 1408 (D.N.M.1996) (finding that government must have a meaningful opportunity to rebut, and ordering mental examination of defendant so as not to sharply

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curtail government's ability to rebut); United States v. Beckford, 962 F. Supp. 748, 758 (E.D. Vir. 1997) (holding that government's ability to rebut defendant's evidence of mental condition would be sharply curtailed, if not entirely eviscerated, without notice of a mental health defense and an opportunity to examine defendant); United States v. Vest, 905 F. Supp. 651, 653 (W.D. Mo.1995) (unless government expert is permitted to examine defendant regarding his mental condition defense, the provision authorizing rebuttal is rendered meaningless); United States v. Minerd, 197 F. Supp.2d 272, 275 (W.D. Pa.2002) (government's ability to rebut information presented in mitigation would be rendered meaningless if a government's mental expert were not permitted to examine the defendant). While it is true that Dr. Herbel and Dr. Frederick have already examined the defendant, they did not examine that defendant for purposes of determining his mental state at the time of the crime. Instead, they conducted their examinations for a limited purpose. The government has the right to conduct its own examination of the defendant on the issue of his mental state at the time of the homicide, just as many of the defense experts have. "The overarching purpose of Rule 12.2 is to place the parties on a level playing field regarding the development of mental health evidence." United States v. Sampson, 335 F. Supp. 2d 166, 246 (D. Mass. 2004). 5. The government's expert for purposes of conducting the mental examination of William Sablan is Dr. Daniel Martell, a psychologist. The government provided Dr. Martell's CV to the defendant on December 1, 2006. Dr. Martell is available to conduct

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such examination the week of January 8, 2007 at ADX. It can be done in one session or two half-day sessions as the defense wishes. The testing would involve psychological and neuropsychological testing similar to that performed by defense experts Poch and Manguso. Dr. Martell proposes videotaping the testing in order to provide the defense with a record of exactly what he does. WHEREFORE the United States requests that the Court authorize Dr. Daniel Martell to conduct a mental examination of William Sablan during the week of January 8, 2007.

Respectfully submitted this

29th

day of December, 2006.

TROY A. EID United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 29th day of December, 2006, I electronically filed the foregoing GOVERNMENT'S MOTION TO CONDUCT MENTAL EXAMINATION OF WILLIAM SABLAN with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected]

s/ Janet D. Zinser JANET D. ZINSER Supervisory Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0403 E-mail address [email protected]

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