United States District Court, Western District of Pennsylvania
March 19, 2002
UNITED STATES OF AMERICA, PLAINTIFF,
JOSEPH P. MINERD, DEFENDANT
The opinion of the court was delivered by: Maurice B. Cohill, Jr., Senior United States District Judge.
MEMORANDUM OPINION AND ORDER
Defendant Joseph P. Minerd is charged with maliciously damaging and
destroying, by means of fire and an explosive, a building which was used
in interstate commerce and in an activity affecting interstate commerce,
which conduct resulted in the deaths of Deana Mitts and Kayla Mitts, in
violation of 18 U.S.C. § 844 (i). The government has served notice
that it intends to seek the death penalty if the defendant is convicted,
under the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591 et
The government has filed a Renewal of Motion for Discovery of Mental
Health Evidence and for Order Compelling Defendant to Submit to Mental
Health Examination (Doc. 234) and a Motion to Compel Disclosure of Mental
Health Evidence and Proposed Procedures for Disclosure (Doc. 256). Each
motion seeks an order permitting the defendant to be examined by the
government's mental health experts in advance of trial, and, in
addition, requests certain discovery as to Mr. Minerd's mental health
evidence. The defendant strenuously opposes any examination before the
conclusion of the guilt/innocence phase of this capital case.
Having considered the submissions of the parties and the applicable
law, the government's motions will be granted in part and denied in part
for the reasons set forth below.
The government filed its first Motion for Discovery of Mental Health
Evidence and for Order Compelling Defendant to Submit to Mental Health
Examination (Doc. 139) on July 7, 2001.
Minerd responded that "at this time, the defendant does not intend to
offer expert testimony relating to a mental disease or defect or any
other mental condition as defined by [Fed.R.Crim.P.] Rule 12.2(b)."
166 at ¶ 1. The response further stated that "[s]hould the defendant
decide to offer expert testimony relating to a mental disease or defect
of any other mental condition as defined by Rule 12.2(b) appropriate
notice will be provided to the Court." Doc. 166 at ¶ 4.
Accordingly, we denied the government's motion by Order dated September
12, 2001. Doc. 178.
On January 22, 2002, the defendant filed a Supplemental Response to the
government's earlier motion (Doc. 228). In it, Minerd informed the court
and government counsel that "[t]he defense has recently obtained
background information bearing upon Mr. Minerd's mental status that will
almost certainly be introduced into evidence during any penalty phase. .
. ." Doc. 228 at ¶ 4. Defendant further stated that preliminary
information from a neuropsychologist indicated that Minerd may suffer
from organic brain dysfunction, as a result of a fall and head injury in
1997. Doc. 228 at ¶ 5.
Defendant explained that "some initial testing has been done (and)
additional testing is contemplated." Doc. 228 at ¶ 6. He then
provided information from the initial test results.
Anticipating that the government would now renew its motion for an
order compelling a mental health examination by the government's expert,
counsel for the defendant requested a hearing to define the scope and
circumstances of any evaluation.
The government filed its renewed motion on February 4, 2002, and we set
a hearing on the matter for February 7. At that time, the parties
informed the Court that they had agreed on most of the issues, and that
a hearing was no longer necessary. The defendant stated that it would
file notice by February 19 if it intended to use mental health evidence
during any penalty phase. Counsel for the government explained which
expert he expected to retain, and both parties seemed to agree that the
general procedure set forth in United States v. Beckford, 962 F. Supp. 748
(E.D.Va. 1997) would be appropriate.
Any understanding the parties appeared to have reached had evaporated
by the time the defendant filed his Combined Response and Objections to
the Prosecution's Motion (Doc. 249), which generally asserts that the
government is not entitled to have Minerd examined nor to discovery of
any his mental health evidence, and that the procedures outlined in
Beckford are inapplicable to this case.
The government responded on February 28, 2002, by filing a Motion to
Compel Disclosure of Mental Health Evidence and Proposed Procedures for
Disclosure (Doc. 256), which sets forth an alternate procedure. Minerd
has filed a response objecting to said motion. (Doc. 269).
We turn first to the government's renewed motion (Doc. 234), which
requires that we decide whether Minerd can be ordered to give notice of
his intent to introduce mental health testimony at any penalty phase of
this trial, and whether he may be subjected to a court-ordered
examination and to reciprocal discovery obligations. In making our
decision, we must consider the implications on Minerd's constitutional
rights under the Fifth and Sixth Amendments.
The mental health of a capital defendant is relevant to a sentencing
proceeding under the framework of the FDPA. Such evidence is relevant to
at least three of the statutory mitigating factors which a defendant may
introduce during the sentencing phase of the trial: impaired capacity
(18 U.S.C. § 3592(a)(1)); that the offense was committed under severe
mental or emotional disturbance (§ 3592(a)(6)); and other
the defendant's background (§ 3592(a)(8)). The statutory scheme
further provides that the government shall have an opportunity to rebut
any evidence presented in mitigation. 18 U.S.C. § 3593(c).
The defendant correctly argues that there is no statutory authority for
the specific relief the government seeks. Neither Fed.R.Crim.P. 12.2 nor
16(b)(1) applies to the penalty phase of a trial. Other courts, however,
have relied upon the inherent power of the district court to provide the
procedures necessary for a just and efficient resolution of the sentencing
phase of a capital trial to order a mental health examination such as
this, and we agree with the rationale underlying those decisions. See,
e.g. United States v. Allen, 247 F.3d 741, 773 (8th Cir. 2001) (there is
no doubt that a district court has the authority to order a defendant who
states that he will use evidence from his own psychiatric examination in
the penalty phase of a trial to be examined by a government-selected
psychiatrist before the start of the penalty phase); United States v.
Webster, 162 F.3d 308, 338-39 (5th Cir. 1998) (acknowledging that the
district court has this inherent authority furthers the goals of the
FDPA); United States v. Edelin, 134 F. Supp.2d 45, 47-49 (D.DC 2001)
(court has authority to order mental health examination of the defendant
under 18 U.S.C. § 3593(c) if he provides notice of intent to present
mental health information in support of a mitigating factor); United
States v. Beckford, 962 F. Supp. 748, 754-57 (E.D.Va. 1997) (inherent
power of district courts provides sufficient authority for the imposition
of notice, examination and discovery of mental health conditions in the
Courts addressing this issue have also reasoned that the government's
ability to rebut any information presented in mitigation would be
"rendered meaningless" if a government-selected mental health expert were
not permitted to examine the defendant. United States v. Vest,
905 F. Supp. 651, 653 (W.D.Mo. 1995). See, also United States v.
Haworth, 942 F. Supp. 1406, 1407-08 (D.N.M. 1996); Beckford,
962 F. Supp. at 757.
Provided that a defendant has stated intent to produce mental health
testimony at any sentencing phase, ordering an examination by a
government-selected mental health expert does not violate constitutional
rights. "[T]he protection afforded by the Fifth Amendment ceases when a
defendant indicates that he intends to introduce mental health evidence
in the penalty phase of a trial." Beckford, 962 F. Supp. at 761 (citing
Estelle v. Smith, 451 U.S. 454 (1981); Buchanan v. Kentucky, 483 U.S. 402
(1987); Savino v. Murray, 82 F.3d 593, 604 (4th Cir. 1996)).
Furthermore, where a defendant makes the decision to introduce mental
health evidence in the penalty phase upon advice of counsel, there is no
infringement of the Sixth Amendment. Beckford, 962 F. Supp. at 761.
See, also Vest, 905 F. Supp. at 653. In addition, requiring that a
defendant provide notice to the government of his intent to present
mental health evidence at the penalty phase does not violate his rights
under the Fifth and Sixth Amendments. Edelin, 134 F. Supp.2d at 56
(citing Estelle, 451 U.S. at 454; Buchanan, 483 U.S. at 402). See also
Beckford, 962 F. Supp. at 761-62 (requiring a defendant to declare his
intent to present mental health evidence at a time certain in advance of
trial does not infringe the Fifth Amendment right not to incriminate
himself or Sixth Amendment right to effective assistance of counsel). We
are confident that the procedure we will order, which is
set out in the Beckford decision and adopted by several other courts, is
sufficient to safeguard Minerd's constitutional rights. A defendant's
constitutional rights are not violated by a framework that places any
mental health examination results under seal until the guilt phase of the
trial is completed, and releases them to the prosecutor only after the
defendant states with certainty that on the advice of counsel he intends
to use mental health evidence to support a mitigating factor.
Minerd asserts that his circumstances are different than those
addressed by the courts in Beckford, Hall, Webster, Haworth and Vest, and
that those cases are distinguishable because the defendant had already
been provided with government discovery, or had undergone extensive
psychological testing, or had raised stark mental health issues such as
mental retardation. This argument is without merit. In each of those
cases, the court confronted the same opposing interests presented here:
the defendant's rights under the Fifth and Sixth Amendments, the
government's right under the FDPA or analogous statute to rebut any
mental health testimony a defendant chooses to present at the pentalty
phase, and the broader interests of fairness and justice. Minerd argues
strenuously that requiring a notice of intent to use such information
before the trial in this matter will force him to apprise the government
of his penalty phase strategy. We disagree with this conclusion. Minerd
may certainly change his mind and decide not to present mental health
evidence to support mitigation factors. Providing notice at this point
does not prevent him from reconsidering this decision, and, should he
decide not to introduce such expert testimony, the government will not
have access to any report its own expert or experts have filed under
seal. We also reject the defendant's argument that the better way to
handle this issue is to permit the government to seek a continuance if
there should be a conviction. We are convinced that this would be
detrimental to the jury and to the judicial process.
Accordingly, we will grant the government's motion (Doc. 234) insofar
as it requests that we order Minerd to file a notice of intent by a date
certain, and, if he wishes to present such evidence, order that he be
examined by a government-selected mental health expert. Any such
examination shall be conducted in accordance with the Order below.
The government has also filed a Motion to Compel Disclosure of Mental
Health Evidence and Proposed Procedures for Disclosure (Doc. 256), which
sets forth an alternate procedure to Beckford. This suggested procedure
follows that recently approved by the Eighth Circuit in United States v.
Allen, 247 F.3d 741, 773-74 (9th Cir. 2001). The Court of Appeals for
the Third Circuit has not spoken to the issues we must decide here.
However, we are convinced that the Beckford framework better protects
Minerd's constitutional rights than the Allen scenario, which creates a
Chinese wall within the U.S. Attorney's office and provides the results
of mental health examinations to the AUSA responsible for the
prosecution's penalty phase well before the conclusion of the guilt or
innocence phase of trial. We will deny this motion.
For the reasons set forth above, we are confident that the procedures
enumerated in the accompanying Order will ensure that the government's
examination of the defendant will take place only if Minerd provides
notice of his intent to use mental
health evidence in mitigation during
any sentencing phase of the trial. They will further ensure that the
results of any examination will be disclosed only if Minerd chooses to
introduce such testimony or other mental health evidence during any
penalty phase. Minerd's rights under the Fifth and Sixth Amendments are
not infringed by the procedure we here approve.
An appropriate Order follows:
AND NOW, to-wit, this 19th day of March, 2002, it is hereby ORDERED
that the government's Motion to Compel Disclosure of Mental Health
Evidence and Proposed Procedures for Disclosure (Doc. 256) be and hereby
IT IS FURTHER ORDERED THAT the government's Renewal of Motion for
Discovery of Mental Health Evidence and for Order Compelling Defendant to
Submit to Mental Health Examination (Doc. 234) be and hereby is GRANTED
IN PART AND DENIED IN PART consistent with the following:
1. Defendant shall give written notice to the government on or before
noon on March 28, 2002, if he wishes to introduce testimony by a mental
health professional, or evidence based on a mental health examination
(both hereinafter referred to as mental health testimony) at any penalty
phase. The notice shall include the name and professional qualifications
of any mental health professional who may testify and a brief, general
summary of the topics to be addressed that is sufficient to permit the
government to determine the area in which its expert must be versed.
2. If the defendant files a notice that he plans to introduce mental
health testimony at the penalty phase, the defendant shall be examined by
a psychiatrist or other mental health professional selected by the
government. The government's examination shall take place not later than
the commencement of jury selection in this case, which is set for April
3. Any report or opinions generated by an examination of the defendant
by a government expert shall be filed under seal with the Court and not
discussed with the government or the defense until after the guilt phase
of trial. The mental health professional conducting the examination for
the government shall not discuss the examination with anyone unless and
until the results of the examination are released, following the guilt
phase of the trial, to counsel for the government and for the defendant.
4. Any report by the defense expert witnesses, although provided to
the defense, shall also be filed under seal with the Court, and shall
remain under seal and only submitted to the government under the terms of
this Order, after the guilt phase of trial.
5. The results of any examination by the government's experts and the
defendant's experts shall be released to the government only in the event
that the jury reaches a verdict of guilty on a capital charge as to the
defendant, and only after the defendant confirms his intent to offer
mental health or mental condition evidence in mitigation. To that end,
prior to the commencement of the penalty phase, the defendant shall file a
pleading confirming or disavowing his intent to introduce mental health
testimony at the penalty phase. If, in that manner, the defendant
withdraws his previously-tendered notice, the results of any mental
health examinations concerning the defendant will not be released to the
government. In the event that the defendant confirms his intent to
introduce mental health evidence, the reports of any examinations,
whether by the government or the defense expert, shall be released to
government counsel immediately after the filing of the pleading
confirming the earlier notice. At the same time, the report of the
government's expert shall be released to counsel for the defendant.
6. Even if the defendant confirms his intent to offer mental health
evidence, the defendant may withdraw a notice of intent to raise a mental
health or mental defense at any time before actually introducing evidence
on it, and, in that event, neither the fact of notice, nor the results or
reports of any mental examinations, nor any facts disclosed only
therein, shall be admissible against the defendant.
7. Failure of the defendant to provide notice or to participate in a
Court-ordered examination or to confirm his first notice shall result in
forfeiture of the right to present mental health testimony during the
penalty phase of trial.
8. Prior to any mental health testing being conducted by any expert
for the government on the defendant, the government shall provide to
counsel for the defendant a list of tests its expert wishes to perform.
The government's expert shall not identify more than one test for the
purpose of measuring the same mental functions(s). Within three days of
receiving the government's list, the defendant shall identify any such
tests to which he objects, based solely on his own expert's desire to
utilize the same test or a test which would be incompatible with the
government's expert's use of his designated test. If a conflict exists
which the government and the defense cannot resolve, the parties shall
notify the Court and a hearing will be held. No mental health testing may
be performed by either party until there is a final decision as to which
tests are to be conducted by the government's expert. In the event of
such an unresolved conflict, nothing in this paragraph shall create a
preference in favor of the government or a burden on the defendant at a
hearing conducted pursuant to this paragraph. The defense and the
government shall also consider sharing data between the experts so that
multiple administrations of the same test in a short period of time can
9. The defendant is not required to provide the government with any of
the materials supplied to defense experts other than defendant Minerd's
10. The government shall provide the defendant, within ten days of
this Order, with all documents in its possession pertaining to any mental
health examination performed on the defendant prior to the date of this
Order. The government shall provide the defendant with any such records
that it obtains during the course of the prosecution of this case, up to
and including the penalty phase, not later than five days after the
government receives such records.
11. The government shall provide counsel for the defendant three days
notice of its intended date(s) of examination of the defendant.
12. The government will not electronically record the examination of
the defendant, whether by audiotape or videotape, except with the express
written consent of defense counsel.
13. No results of the government examination, and no statements or
testimonial conduct of the defendant made
in the course of such
examination, shall be introduced or used by the government for any
purpose except to rebut expert testimony offered by the defense during the
sentencing phase of the trial on the issue of the defendant's mental
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