Barnett v. Roper

Filing 289

MEMORANDUM AND ORDER re: 252 MOTION for Disclosure filed by Respondent Don Roper. IT IS HEREBY ORDERED that Respondent Don Roper's Motion for Disclosure [ECF No. 252] is GRANTED. IT IS FURTHER ORDERED that, upon the receipt of this Memorandum and Order, Petitioner shall produce the psychiatric evaluation conducted by Bruce Harry, M.D., to Respondent. Signed by District Judge E. Richard Webber on August 18, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID BARNETT,
Petitioner,
v.
DON ROPER,
Respondent.

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No. 4:03CV00614 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Respondent Don Roper’s Motion for Disclosure
[ECF No. 252].
In 2004, Petitioner David Barnett filed a Petition for writ of habeas corpus under 28
U.S.C. § 2254. The Petition raised 19 grounds of relief, one of which remains pending before
the Court. Specifically, in April 2013, the Court granted an evidentiary hearing as to Petitioner’s
claim he received ineffective assistance of counsel for failure to investigate and present
mitigating evidence about his biological family during the penalty phase of trial.
On August 4, 2014, the Court held a status conference, and counsel for Respondent
advised a previously undisclosed psychiatric evaluation had come to light in a recent deposition.
Petitioner David Barnett opposed disclosure of the evaluation, which was conducted by Bruce
Harry, M.D., on the grounds it pertains only to his legal competency to stand trial. The Court
ordered an in camera review of the evaluation, and Respondent filed the instant Motion for
Disclosure [ECF No. 252]. In his Response [ECF No. 285], Petitioner argues the psychiatric
evaluation is protected by the work product privilege. He also contends it is irrelevant to the
habeas hearing, because it only addresses his competency to stand trial, and whether he was

insane at the time he committed the underlying offense.
At the outset, after conducting an in camera review, the Court finds the topics in Dr.
Harry’s extensive evaluation include more than legal competency and insanity. In fact, the
second sentence of the report states, “I understand you to have requested that I address issues of
mental disease or defect, competence to stand trial, responsibility at the time of the offenses,
diminished capacity, and mitigation.”

In addition, the end of the report expressly lists

“mitigating circumstances,” based upon Dr. Harry’s psychiatric evaluation, which is discussed at
length throughout the report. Because the subject of the habeas hearing is whether trial counsel
was ineffective for failing to investigate and present mitigating evidence, Dr. Harry’s report is
highly relevant to (1) whether trial counsel conducted an adequate investigation, and (2) whether
Petitioner was prejudiced by any alleged constitutional error.
Additionally, the Court concludes the work product privilege has been waived as to Dr.
Harry’s report. As the Eighth Circuit1 has explained,
There are two kinds of work product – ordinary work product and opinion work
product. Ordinary work product includes raw factual information. See Gundacker
v. Unisys Corp., 151 F.3d 842, 848 n. 4 (8th Cir.1998). Opinion work product
includes counsel's mental impressions, conclusions, opinions or legal theories. See
id. at n. 5. Ordinary work product is not discoverable unless the party seeking
discovery has a substantial need for the materials and the party cannot obtain the
substantial equivalent of the materials by other means. See Fed. R. Civ. P.
26(b)(3). In contrast, opinion work product enjoys almost absolute immunity and
can be discovered only in very rare and extraordinary circumstances, such as
when the material demonstrates that an attorney engaged in illegal conduct or
fraud. See In re Murphy, 560 F.2d 326, 336 (8th Cir.1977).
Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). That said, “[t]he work
product privilege as a whole is not absolute and may be waived.” Pamida, Inc. v. E.S. Originals,
1

Although the parties cite Missouri state case law, the work product privilege is not substantive,
and federal therefore law applies. PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813,
817 (8th Cir. 2002); McConnell v. Farmers Ins. Co., Inc., No. 07-4180-CV-C-NKL, 2008 WL
510392, at *2 (W.D. Mo. Feb. 25, 2008).
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Inc., 281 F.3d 726, 732 (8th Cir. 2002). The Court must apply the privilege “in a commonsense
manner in light of reason and experience as determined on a case-by-case basis.” Id. (internal
quotations omitted). When determining whether Petitioner impliedly waived the privilege, the
Court “must not only look at whether [Petitioner] intended to waive the privilege, but also
whether the interests of fairness and consistency mandate a finding of waiver.” Id.
Here, Petitioner has impliedly waived the work product privilege, because he “clearly
placed the work of [his] attorneys squarely at issue[.]” Id. That is, the essence of Petitioner’s
habeas claim is trial counsel’s performance at the mitigation phase of trial fell below the
constitutional standard. Dr. Harry’s report, which expressly addresses “mitigation,” is directly
relevant to the steps trial counsel took in preparing for the penalty phase of trial. In addition, in
light of the extensive interview Dr. Harry conducted of Petitioner, the report is relevant to
whether any alleged new mitigating evidence was reasonably available to trial counsel. Finally,
due to the vast amount of facts set forth in the report, the evaluation is relevant to whether trial
counsel made a strategic decision to avoid certain types of mitigating evidence, and to whether
Petitioner was prejudiced by his trial counsel’s performance. Therefore, the Court concludes the
interests of fairness and consistency mandate a finding of waiver, and Dr. Harry’s psychiatric
evaluation must be produced.
Accordingly,
IT IS HEREBY ORDERED that Respondent Don Roper’s Motion for Disclosure [ECF
No. 252] is GRANTED.

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IT IS FURTHER ORDERED that, upon the receipt of this Memorandum and Order,
Petitioner shall produce the psychiatric evaluation conducted by Bruce Harry, M.D., to
Respondent.
Dated this 18th Day of August, 2014.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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