Library of Motions

NO. 123456

THE STATE OF TEXAS IN THE DISTRICT COURT

vs. 123rd JUDICIAL DISTRICT

JOHN DOE LONE STAR COUNTY, TEXAS

EX. PARTE, SEALED

FUNDING MOTION FOR INVESTIGATOR/MITIGATION SPECIALIST

TO THE HONORABLE JUDGE OF SAID COURT:


Now comes John Doe, an indigent Defendant in the above numbered and entitled cause, by and through his attorney of record, and pursuant to Articles 26.05 (a) and 26.052 (g) of the Texas Code of Criminal Procedure, the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 10, 13, and 19 of Art. I of the Texas Constitution and other authority cited herein, moves this Court to enter a finding that there is a reasonable necessity for investigative and/or expert assistance and funding in support of the Defendant's right to defend against the penalty which my be sought by the State of Texas. In support thereof, the Defendant would show:

 

I.

 

(a) John Doe has been indicted by a Lone Star County grand jury for the offense of aggravated robbery. The accused'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. Specifically, the Defendant was born addicted to cocaine as his biological mother was a cocaine addict. The accused has had a drug problem his entire life, and the motivation behind many of his actions arise out of this drug addiction.

(b) Expert assistance will be necessary to prepare and present this evidence in John Doe's

defense.

(c) This Court has determined the Defendant is indigent. His counsel is unable to retain any investigative or expert assistance due to John Doe's indigence.

 

II.

(a) The requested funding will provide counsel with essential tools to begin the defense against the indictment returned and the potential penalty which may be sought by the State of Texas. The 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). The holding in Ake 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. Rey v. State, 897 S.W.2d 333 (Tex.Crim.App.1995). The failure to obtain funding for this assistance will call into question the fundamental fairness of the Defendant's trial, his right to confront and cross-examine witnesses, and will deny him his Sixth Amendment right to the effective assistance of counsel.

(b) Counsel 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 must be informed choices. Strickland v. Washington, 466 U.S. 668 (1984).

(c) Without the tools necessary for effective assistance of counsel, Defendant will not be able to announce that he is ready to proceed when this case is called for trial.

 

III.

 

(1) Counsel moves the Court for funding to hire an investigator/mitigation specialist who will:

(a) investigate John Doe's background and 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 those records that will establish and describe John Doe'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 the 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 punishment;

(2) The evidence and records the mitigation investigator will collect 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 and 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.

 

IV.

(a) In order to accomplish the required mitigation investigation, the mitigation specilist should have the following credentials and abilities:

(i) a social worker with a Masters Degree in Social Work and licensed by the State of Texas (LMSW);

(ii) experience in working with those with mental health problems;

(iii) the ability to obtain a psychological/social history from the accused, or supplement one that has already been prepared in anticipation of and in support of this funding request;

(iv) the ability to perform the activates that are described in III above.

(b) counsel has contacted Herman Peebles, LMSW-ACP, a licensed social worker with a master's degree in his field with a certificate allowing him to engage in the Advanced Clinical Practice of Social Work. Counsel believes there are significant events in the Defendant's psychological and social history that need to explored, investigated, developed, and presented to the jury as a part of the penalty phase of the trial. Mr. Peebles will help counsel in this effort. He will also assist counsel in determining what additional experts will be needed as essential tools in the presentation of evidence at trail.

 

V.

(b) Mr. Peebles has indicated the cost to conduct the initial phase of his mitigation investigation. His customary rate, which counsel has determined is a reasonable rate in this county for similar services required of someone with Mr. Peebles's qualifications, is $60.00 per hour. Out of pocket expenses are also requested . Both of these amounts are outlined in the attached estimate. The mitigation specialist anticipates the initial investigation will require a minimum of fifty (50) hours. Counsel seeks initial funding of $3,000.00.

(c) Prior to submitting any statement tot he County Auditor for payment to Mr. Peebles, counsel will (i) review the work of Mr. Peebles to determine the time devoted to the case was reasonable and necessary and (ii) consistent with this Court's authorization.

 

VI.

 

(a) This motion is made ex parte pursuant to Article 26.05(d), Texas Code of Criminal Procedure. It would be fundamentally unfair to require this indigent Defendant to divulge to the prosecution this motion for funding which will necessarily inform it of theories of mitigation. Williams v State, 958 S.W.2d 186 (Tex. Crim. App. 1997). Retained counsel would not have to tell the State who was being consulted. Counsel moves that the Courts Order, finding that a threshold showing of necessity has been made, also contain language that it is to be a sealed order.

WHEREFORE PREMISES CONSIDERED, Defendant through his counsel prays that upon hearing, this Court:

(1) Find 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) approve initial funding in the amount of $3,000.00 for fifty (50) hours of Mr. Peebles's work, in addition to out-of-pocket expenses;

(3) order that this motion and the Court's Order be sealed as prayed for herein; and

(4) that the Defendant have such other and further relief as he may show himself to be justly entitled.

 

Respectfully Submitted.

 

 

________________________________

JANE SMITH

Attorney at Law

123 Fake Street

Rattlesnake, Texas 72345

(713) 512-2102

FAX #: (713) 512-2102

SBN #: 12345678

NO. 1234

THE STATE OF TEXAS IN THE DISTRICT COURT

vs. 123rd JUDICIAL DISTRICT

JOHN DOE LONE STAR COUNTY, TEXAS

EX PARTE, SEALED

ORDER ON FUNDNG FOR INVESTIGATOR/MITIGATION SPECIALIST

On this day came on to be heard the Defendant's foregoing motion for funding for a mitigation specialist. After due consideration, the Court enters the following ORDERS:

 

1. Herman Peebles is APPOINTED as a mitigation specialist to assist counsel in

the preparation of the defense in this case.

2. Initial funding for the expert in the amount of $3,000.00 for 50 hours of Mr. Peebles' work in addition to out-of-pocket expenses is hereby APPROVED and ORDERED for the defense in this case.

3. The motion for funding and the Court's order are ORDERED SEALED.

4. Movant shall have such other and further relief as he may show himself to be justly entitled.

SIGNED this ________day of _________________, 2006

 

 

___________________________

 

JUDGE PRESIDING