United States District Court, D. Vermont
DECISION AND ORDER ON MOTION FOR DISCLOSURE AND RETURN OF INFORMATION AND RECORDS IN GOVERNMENT'S POSSESSION (Doc. 548)
GEOFFREY W. CRAWFORD, District Judge.
In the early going of this case following the decision granting a new trial, it will be necessary to divide issues which arose in the prior phases-both the original trial and the § 2255 proceeding-between those which remain relevant to the retrial and those which have no further effect. The defendant's motion concerning prior discovery (Doc. 548) raises these types of questions.
The court starts with a review of the motions and rulings about discovery which lead to where the parties are today.
I. Discovery in the § 2255 Proceeding
In the course of the § 2255 case, the parties exchanged discovery. The process commenced with the petitioner's motion to conduct discovery filed pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings for the United States District Courts. (Doc 309.) Through his attorneys Fell sought to investigate claims of ineffective assistance of counsel and prosecutorial misconduct. While opposing the motion, the Government voluntarily produced some of the material requested by the defense. The court granted the motion to conduct discovery in part. (Doc. 369.)
On June 10, 2013, the Government responded with broad discovery requests of its own. The Government's memorandum noted that in its view, Fell had waived his attorney client privilege when he placed his attorneys' conduct at issue by asserting claims of ineffective assistance of counsel. The Government sought disclosure of all files maintained by counsel during the course of the first trial. (Doc. 375.)
On June 28, 2013, the Government filed a second motion for discovery. The motion sought disclosure of the substance of interviews and other information concerning potential juror misconduct. (Doc. 382.)
The parties held a discovery conference on August 26, 2013. The defense agreed to produce non-privileged materials.
In a motion filed on September 19, 2013, the Government renewed its demand for a complete, unredacted disclosure of the attorney files from the original trial. (Doc. 409.)
On October 24, 2013, the court entered a stipulated discovery order which established a process for correcting the inadvertent disclosure of privileged materials. (Doc. 423.)
On December 19, 2013, the court ruled on the outstanding discovery motions. The court allowed discovery of both Fell and the prosecutors involved in the original trial. In Fell's case, any deposition was limited to questions about his interactions with his attorneys concerning issues raised at the penalty phase such as his background, his mental health, his relationship with codefendant Robert Lee and a prison disciplinary incident. These interactions were relevant to a claim of ineffective assistance of counsel. They were placed at issue by Fell's § 2255 petition. The Government was not permitted to question Fell about the underlying facts of the offense. (Doc. 458.)
Discovery proceeded after the December 2013 order including depositions of Fell's trial counsel and his jury consultant. When a dispute arose concerning the scope of the deposition of the jury consultant, the court issued an order permitting an inquiry, including an inquiry into work-product materials, with respect to the three jurors whose conduct was at issue. The court did not allow a broader inquiry into all facts related to the selection of the jury. (Doc. 488.)
Following hearings conducted between August 2013 and May 2014, the court issued a decision on July 24, 2014 granting the motion to vacate the prior judgment of conviction and granting a new trial to Fell. The decision was based on juror misconduct and did not reach the other claims in the § 2255 petition. (Doc. 514.)
II. The Controversy over Dr. Weiner
In the course of the § 2255 case, Fell's attorneys also sought relief on the ground that one of the Government's experts had violated a court order limiting the Government to existing psychological experts and denying the Government's request for a new psychological evaluation.
Following the disclosure by the defense of three expert witnesses on the issue of penalty on May 18, 2001, the Government selected Richard Wetzel, Ph.D. and John Rabun, M.D. as its experts on these issues. Both conducted in-person interviews of Fell during the spring and summer of 2002. Trial preparations were delayed between September 2002 and March 2004 while the parties appealed from a decision of this court declaring the federal death penalty to be unconstitutional. The Second Circuit issued a decision reversing the trial judge on this issue in March 2004. United States v. Fell, 360 F.3d 125 (2d Cir. 2004).
In December 2004 both sides filed formal notices pursuant to Fed. R.Crim.P. 12.2 regarding their intent to offer expert testimony about Fell's mental condition on the penalty issue only. (Docs. 74, 77). At this time the Government disclosed that it had retained a third expert: Michael Welner, M.D. It sought an unrestricted examination of Fell by Dr. Welner, including questions concerning offense conduct. It sought to apply recent amendments to Rule 12.2 which ...