CAUSE NO. ____________________

THE STATE OF TEXAS                              		IN THE DISTRICT COURT OF
vs.	                                                                                         ___________ COUNTY, TEXAS  
JOHN DOE			                                  		___________ JUDICIAL DISTRICT

EX  PARTE, SEALED 

FUNDING MOTION FOR MITIGATION SPECIALIST

TO THE HONORABLE JUDGE OF SAID COURT:

	COMES NOW, JOHN DOE, hereinafter Defendant, by and through his attorney of record, and pursuant to Tex. R. Crim. P. Art. 26.05(a) and 26.052(g), the 5th, 6th, 8th and 14th Amendments to the United States Constitution and Sections 10, 13 & 19 of Article I of the Texas Constitution and other authority cited herein, moves this Court to enter a finding that there is a reasonable necessity for expert assistance and funding in support of the Defendant’s right to defend against the penalty sought by the State of Texas.   In support thereof, this Defendant would show the following:    
I.

(1)	abDefendant has been indicted by the Travis County Grand Jury for the offense of _________.  The range of punishment authorized by statute is _____________.  Defendant’s background, record and the circumstances of the offense, including his general mental status, prior to and at the time of the offense, will be significant factors at trial and relevant to issues that will be decided by the jury.  Jackson v. State, 160 S.W. 3d 568 (Tex.Crim.App. 2005).
(2)	abExert assistance will be necessary to prepare and present this evidence in Defendant’s  defense and to mitigate against the imposition of the punishment sought by the State of Texas.

(3)	abThis Court has determined that Defendant is indigent.  His counsel is unable to retain any expert assistance due to Defendant’s indigent status.
II.

(4)	abThe funding that is requested will provide Counsel with essential tools to defend against the indictment returned and the penalty sought by the State of Texas.  Defendant is entitled to such expert assistance upon a threshold showing that the assistance sought is relevant to a significant factor at trial. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985). This holding of the U.S. Supreme Court has been followed by the Texas Court of Criminal Appeals.  De Freece v. State, 848 S.W.2d 150 (Tex.Crim. App.1993).   

	Appointment for expert assistance should be made regardless of the expert’s field of expertise as there is no principled way to distinguish between psychiatric and non-psychiatric experts.   The denial of the appointment of an expert under Ake amounts to “structural error which cannot be evaluated for harm.  Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995).  
	The failure to grant funding for this assistance will call into question the fundamental fairness of Defendant’s trial, his right to confront and cross-examine witnesses and will deny him his 6th Amendment right to the effective assistance of this counsel.
(5)	abCounsel would be ineffective for failing to adequately investigate and present mitigating evidence.  Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed. 2d 389 (2000).  Counsel’s strategic choices concerning what mitigating evidence to present at trial must be informed choices.  Strickland v. Washington, 466 U.S. 668 (1984) and in Wiggins v. Smith, 539 U.S. 510 (2003), where a trial judge was quoted in the Wiggins state habeas proceeding held in 1994 as saying “[n]ot to do a social history, at least to see what you have got, to me is absolute error.  I would be flabbergasted if the Court of Appeals said anything else.”  The United States Supreme Court has agreed with this observation.

	The Sixth Amendment guarantees to defendants a right to effective representation.  See United States v. Fessel, 531 F.2d 1275, 1279 (5th Cir. 1976), Ex Parte Briggs, 2005 WL 3440433, at *5, n.22 (Tex. Crim. App. December 16, 2005) (citing Wiggins ).Under Briggs, when an indigent defendant cannot otherwise afford an expert witness, counsel must request funding for the expert witness pursuant to Ake v. Oklahoma in order to ensure that the defendant receives effective representation.  Briggs, 2005 WL 3440433, at *6.
	Defense counsel in the past has  been found to be ineffective in a non-capital case for failing to develop evidence of the client’s mental health impairment for presentation at the punishment phase of trial.  Miller v. Dretke, 420 F 3d. 356 (5th Cir. Tex. 2005).  Mental health impairment cannot be adequately identified unless and until the mitigation investigation is completed.

(6)	abFailure of counsel to thoroughly investigation the bio/psycho/social history of his client violates national norms applicable to the defense of those charged with the commission of a capital crime.  ABA Standards for Criminal Justice: The Defense Function, Standard 4-4.1 (2d. ed. 1986)).   
	Without the tools necessary for effective assistance of counsel, Counsel can not announce that he is ready to proceed when this case is called for trial.  
III.

(1)	abCounsel moves the Court for funding to hire a mitigation specialist.  A mitigation specialist is also an indispensable member of the defense team throughout all capital proceedings.  Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have.   Dwight H. Sullivan et al, “Raising the Bar: Mitigation Specialists in Military Capital Litigation”, 12 Civ.Rts. L.J. 199, 206-11 (2002) and American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Revised Edition, February, 2003 at 33.  Perhaps most critically, having a qualified mitigation specialist assigned to every capital case as an integral part of the defense team ensures that the presentation to be made at the penalty phase is integrated into the overall preparation of the case, rather than being hurriedly thrown together by defense counsel still in shock at the guilty verdict.  See Vivian Berger,  “The Chiropractor as Brains Surgeon: Defense Lawyering in Capital Cases,” 18 N.Y.U Rev. Law & Soc. Change 245,250 (1990/1991).   The mitigation specialist will:
 	 		(a) investigate Defendant’s background, assess and evaluate the dynamics of his family; 
 	 		(b) obtain necessary releases for securing confidential records relating to any of the relevant histories; 
 	 		(c) identify, obtain and evaluate all of those records that will establish and describe Defendant’s contact with public and private institutions prior to the time of trial; 
 	 		(d) assist Counsel in locating, documenting and obtaining any evidence that would bear on the personal moral culpability of Defendant or would reduce his moral blameworthiness in the eyes of a jury; 
 	 		(e) assist Counsel in the preparation and presentation of the mitigation evidence that will be presented to the jury at trial so that jurors will have the information needed to determine if a life verdict should be returned.
(2)	abThe evidence and records the mitigation specialist will collect and that are relevant to the sentencing phase of the trial will consist of: 
 	 	 	(a) MENTAL AND PHYSICAL HEALTH: history of mental or physical illness or injury, alcohol and drug use, birth trauma, including fetal alcohol or drug syndrome, and developmental delays; 
 	 		(b) EDUCATIONAL HISTORY: achievement, performance and behavior, special education needs, cognitive limitations, and learning disability; 
 	 		(c) MILITARY HISTORY:  including type and length of service, conduct while in service, special training and conditions of discharge;

 	 		(d) EMPLOYMENT: Employment and training history, including skills, performance and barriers to employability; 
 	 		(e) FAMILY AND SOCIAL HISTORY: (i) physical, sexual or emotional abuse; (ii) prior adult and juvenile records; (iii) prior correctional experience including conduct in the institution and clinical services; (iv) religious and cultural influences; (v) verification, explanation and expansion of material through contact with collateral sources.

	The evidence that is to be collected by the mitigation investigator is made relevant  by C.C.P. 37.071 (2)(e)(1) & (f)(3) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978);  Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); and Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).  See also Tennard v. Dretke, 124 S.Ct. 2562 (2004), holding that there is no requirement that the mitigating evidence have a nexus to the commission of the crime.  Pursuant to Tex.C.Crim.P. Art. 37.070, anything that is relevant to sentencing can be admitted during the punishment phase of a felony trial.
IV.

(1)	abIn order to accomplish the required mitigation investigation, the mitigation specialist should 
have the following credentials and abilities:
(a) A social worker with a Masters Degree in Social Work and licensed by the State of Texas (LMSW); 
 		(b) experience in working with those with mental health problems, 
 		(c) the ability to obtain a psychological/social history from Defendant, or  supplement one that has already been prepared in anticipation of and in support of this funding request;
 		(d) perform the activities that are describe in III above.

(2)	abAttached is an affidavit of ____________, LMSW,  a licensed social worker with a Master’s Degree in her field.
(3)	ab_________________ has prepared an initial psychological and social history which raises the 
following issues related to the mental health of Defendant, the offense, his character,  background and record:
			(a)
			(b) 
			(c)   

	These issues, and others that are raised during the course of her investigation, will be developed for presentation to the jury as a part of Defendant’s penalty phase mitigation.   She will also assist counsel in determining what additional experts will be needed as essential tools in the presentation of evidence at trial.
V.

(1)	abAttached is an estimate by ___________ of the cost to conduct the initial phase of her  mitigation
investigation.  Her customary rate, which counsel has determined is a reasonable rate in this county for similar services required of someone with ____________’s qualifications, is $________ per hour, plus out of pocket expenses as outlined in the attached estimate. The mitigation specialist anticipates that the initial mitigation investigation will require a minimum of 100 hours.  Counsel seeks initial funding of $___________.  
(2)	abIt is anticipated that additional funding will be needed for further investigation.   Prior to the 
request for additional funding, Counsel will inform the Court of the extent of the mitigation investigation performed up to that time and provide an estimate of the hours that will be required to complete the investigation, preparation and implementation of the defense’s mitigation plan.
(3)	abPrior to submitting any statement to the County Auditor for payment to ____________, or 
for reimbursement of amounts advanced by counsel, counsel will review the work of ____________ to determine that the time devoted to the case was (i) reasonable and necessary and (ii) consistent with this Court’s authorization.
VI.

(1)	abThis motion is made ex parte pursuant to Tex. C. Crim.P. Art. 26.052(f).  It would be 
fundamentally unfair to require this indigent Defendant to divulge to the prosecution the nature of this motion for funding which will necessarily inform the State of defensive theories of mitigation.  Williams v. State, 958 S.W. 2d 186 (Tex.Crim.App. 1997).   If Counsel were retained by the accused, there would be no requirement that the State be notified of the retention of expert assistance.  Accordingly, Counsel moves that the Court’s Order, finding that a threshold showing of necessity has been made, also contain the following language:
 	 	THIS ORDER, AND THE DEFENDANT’S EX PARTE MOTION FOR FUNDING, SHALL BE SEALED IN THE RECORD AND PLACED IN AN ENVELOPE IN THE RECORD AND SHALL BE SEEN BY AND DISTRIBUTED TO DEFENSE COUNSEL AND THIS COURT ONLY.

		WHERFORE PREMISES CONSIDERED, Movant prays that upon evidentiary hearing, this Court:

(1)	abFind that such funding request is reasonable and that a threshold showing has been made
	that a mitigation specialist is an essential tool in the presentation of a defense against the indictment returned and the penalty sought;
(2)	abApprove initial funding in the amount of ________________ for 100 hours of __________’s work,  in addition to out of pocket expenses;
(3)	abOrder that this motion and the Court’s Order be sealed as prayed for herein; and
(4)	abThat the Movant have such other and further relief as he may show himself to be justly entitled.
(5)	abShould this Court deny funding, the Court should, pursuant to Tex.C.Crim.P. Art. 26.052(g),  state the reasons for denial in writing, attach the denial to the confidential request, submit the request and denial as a sealed exhibit to the record and immediately notify Counsel of the denial. 
This the _______ day of ______________________, 2007.

						_________________________________
						JOHN P. LAWYER
STATE BAR OF TEXAS NO._________
ADDRESS
PHONE

	Before me, the undersigned authority on this day did personally appear John P.Lawyer who, after being duly sworn, stated upon his oath that the information contained in the foregoing motion was true and correct.
	SWORN TO AND SUBSCRIBED before me by John P.  Lawyer on this the ___ day of ____________, 2007.
						___________________________________________ 
						Notary Public in and for the State of Texas

CERTIFICATE AS TO NON-SERVICE
	I certify that this  motion has been presented, ex parte, to the Court.  A copy has not been  furnished to counsel for the State.

						_________________________________
						JOHN P. LAWYER