The opinion of the court was delivered by: Surrick, J.
Presently before the Court are the Government's Request for Discovery of Defendant Northington's Mental Health Evidence (ECF No. 532), and Defendant Steven Northington's Memorandum Concerning Discovery Under Rule 16 and Proposed Competency Exam (ECF No. 533). For the following reasons, the Government's Request for mental health discovery will be granted.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment charging Defendant Steven Northington with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), two counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 5 and 7), and tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8). (Fourth Superseding Indictment, ECF No. 480.)*fn1 Defendant was charged, along with three co-defendants, Kaboni Savage ("Savage"), Robert Merritt, and Savage's sister, Kidada Savage.*fn2 Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed notices of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government is not seeking the death penalty against Kidada.
On March 23, 2012, an Order was entered setting forth the requirements of, and the deadline for, the filing of notices under Rule 12.2 of the Federal Rules of Criminal Procedure. (ECF No. 435.) The Order states that "any Defendant intending to introduce evidence relating to a mental disease or defect or any other mental condition . . . bearing on either (1) the issue of guilt or (2) the issue of punishment, shall submit written notice pursuant to Federal Rule of Criminal Procedure 12.2(b)." (Id.) The Order further states that notice provided under Rule 12.2(b) "shall include the types and kinds of mental health professionals who may testify, as well as a brief, general summary of the topics to be addressed and the types of testing to be done." (Id.) The deadline to file notices under Rule 12.2 was April 9, 2012. (Id.) On the date that notices were due, Defendant filed a motion for an extension of time to file his notice under Rule 12.2. (ECF No. 453.) The Government opposed the extension. (ECF No. 458.) On May 25, 2012, an Order was entered granting Defendant's motion and extending the deadline by which Defendant could file a Rule 12.2 Notice until June 11, 2012. (ECF No. 489.)
On June 7, 2012, Defendant filed a notice pursuant to Rule 12.2. (Rule 12.2 Notice, ECF No. 513.) His Rule 12.2 Notice states that "the defense may seek to introduce expert evidence relating to a mental condition of the Defendant bearing on the issue of punishment." (Id. at ¶ 1.) Defendant's Rule 12.2 Notice further states that he "may offer testimony by one or more neuropsychologists, social psychologists and neuropsychiatrists . . . concerning cognitive and intellectual disabilities and brain damage and how these deficiencies combined with [his] social and institutional history to adversely affect his development and adjustment to living in his community and his reaction to and decision making concerning the circumstances alleged in the Indictment . . . ." (Id. at ¶¶ 2, 5.) The Rule 12.2 Notice advises that Defendant has "undergone neuroimaging and neuropsychological testing" but that "[n]o further testing is anticipated at this time." (Id. at ¶¶ 3, 4.)
On June 11, 2012, counsel for Defendant notified all parties that they were eighty-five percent certain that Defendant would request an Atkins hearing, and that reports from defense experts would not be finalized for at least another sixty days. (Def.'s Mem. 1, ECF No. 533.)*fn3
Counsel for Defendant subsequently provided the Government with a complete list of all psychological tests conducted on Defendant, including the dates the tests had been administered. (Id.)
On June 14, 2012, a status hearing was held to discuss the mental health testing of Defendant pursuant to his Rule 12.2 Notice. (June 14, 2012 Hr'g Tr. 1 (on file with Court).) At the hearing, the parties discussed the scheduling of a competency evaluation of Defendant as well as the scheduling of the Government's psychological testing of Defendant for purposes of rebuttal. The Government stated at the hearing that the experts it intends to use require the results and reports of Defendant's expert before examining Defendant. (Id. at 9-10.) Counsel for Defendant reiterated that the "final reports" of their experts would not be available for at least another sixty days, but that the Government is not entitled to those final reports prior to independently examining Defendant. (Id. at 11-13.) The Court requested that the parties submit briefing on the issue of whether the Government is entitled to the final reports of Defendant's experts prior to conducting its own examination of Defendant.
In response to the Court's request for briefing, on June 18, 2012, the Government filed a Memorandum Requesting Discovery of Defendant Northington's Mental Health Evidence. (Gov't's Mem., ECF No. 532).*fn4 Also on June 18, 2012, Defendant filed a Memorandum Concerning Discovery Under Rule 16 and Proposed Competency Exam. (Def.'s Mem.)*fn5 At a status conference held on July 2, 2012, counsel for Defendant agreed to immediately turn over all raw data and test results to the Government. Defense counsel also advised that defense expert reports would not be available for at least another month.
The Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591, et seq., prohibits the carrying out of the death sentence on a person who is intellectually disabled. 18 U.S.C. § 3596(c) ("A sentence of death shall not be carried out upon a person who is mentally retarded.").*fn6
In Atkins, the Supreme Court held that executing intellectually disabled defendants was cruel and unusual punishment in violation of the Eighth Amendment. 536 U.S. at 321. With this decision, the Supreme Court created a categorical exclusion from the death penalty for a certain class of individuals who qualify under psychological definitions as intellectually disabled. Although it is clear that the execution of intellectually disabled defendants is prohibited, neither the FDPA, Atkins, nor the Federal Rules of Criminal Procedureestablish a procedure for determining claims of intellectual disability.*fn7 The parties' dispute involves a narrow discovery issue related to Defendant's Atkins claim. We are asked to decide whether the ...