I'm in the middle of jury selection on a death penalty case and a problem has cropped up that I'm sure someone has seen before.

We filed our LaGrone motion some time back, but just had it heard. The defendant has designated several shrink types as experts. However, at the hearing, they said they weren't calling any of their experts to opine on future dangerousness, just mitigation. Therefore, LaGrone didn't apply and our expert cannot examine the defendant. The judge agreed for now, but hasn't made a final ruling on the motion.

It seems to me that since future dangerousness and mitigation are really just opposite sides of the same sword, the reasoning in LaGrone would apply, whichever the expert is testifying to.

Anyone know of any cases to speak to this? I did a quick Westlaw search and haven't found anything. Thanks in advance, I normally do my own research but we're in between jurors and seriously pressed for time!

This must be a tactic def lawyers are being taught somewhere. We had the same thing happen in a cap trial in Feb. the def lawyer told the court that they would call no experts in future danger, only mitigation. This tells me that even their expert thought the def was a sociopath and a future danger. We could not find a case on point either but argued LaGrone by analogy. The judge went with us and I expect(hope?)the appellate court will do the same. We argued that the def expert would/could administer certain tests and make judgments and evaluations based in their specialized trianing and it would fit LaGrone to allow the State's expert to do the same. Our judge gave the def a Hobson's choice: call no such expert or allow the State's expert to evaluate the def as well.

I've tried two cases in the last 4 years where I had a completely different result than my colleague, Ben Leonard. In both cases I knew the defense attorneys had their DEFs examined. I filed my Lagrone motions. (Lagrone is very near and dear to those of us in Tarrant County as this is where the case originated.) Both times I told the trial court that my expert should be allowed to examine the DEF and I was willing to have the examination sealed with the court in the event the DEF's expert did not testify. My pitch to the court was that it would save time instead of stopping the trial, having the DEF examined, etc. I did not prevail. Both of my judges said "no". However, as it turned out, in neither case did the defense "expert" testify. It is frustarting to find yourself in this position. For what it is worth, I think Ben Leonard's judge made the right call. But, of course, the Lagrone motion may still serve a very useful purpose: it may keep the expert off the stand in the first place. And, maybe that is a good thing.

I went and read LaGrone Because, I admit, I didn't know what a LaGrone motion was.

I think this quotation from pg 611 will help to apply this concept to mitigation as well: (The court is paraphrasing Bradford, 873 S.W.2d at 26 (Campbell, J., dissenting) at that point, so perhaps that case will shed some light on your question.)

"Our sense of justice will not tolerate allowing criminal defendants to testify through the defense expert and then use the Fifth Amendment privilege against self-incrimination to shield themselves from cross-examination on the issues which they have put in dispute."

Also, check footnote 8.

[This message was edited by Philip D Ray on 07-02-04 at .]

The Lagrone case was not decided on the basis of the issue of future dangerousness. That just happened to be the issue upon which an expert was going to opine. The point of Lagrone was that the defendant can't use an expert's interview of the defendant as part of his opinion without exposing the defendant to an interview by a state expert.

It has more to do with the sense of fair play. Defendants have the Sixth Amendment. We have the defendant's waiver of the privilege against self-incrimination.

I've always thought the State should be able to just call the defendant directly to the witness stand if he is going to offer any statements of the defendant, even if through another witness. Now, it doesn't seem the CCA is willing to go that far, but in Lagrone they made it quite clear that a state expert should have access to an interview of the defendant.

Lisa, if your trial judge won't agree, you should consider filing a writ of mandamus, asking an appellate judge to order the trial court to order the defendant to submit to an interview. You don't have a right to appeal if you lose the trial or punishment stage, and the judge's duty should be ministerial.

The Lagrone case was about fairness -- at least that was the basis I pitched to the CCA when I argued it.

The State would only be permitted to see this material if the defense presented its mental health expert, and only use it on rebuttal.

As to "future danger" vesus "mitigation", it should not make a difference since the State's expert in Lagrone was permitted to examine him regarding all three punishment issues -- deliberateness, future danger and mitigation -- in order to rebut psychological evidence presented by the defense on these same issues.

You might also look at Soria, 933 S.W.2d at 55-57. It discusses a case called Hernandez, 805 S.W.2d 409, 412 (Tex. Crim. App. 1990) where the defendant was found to have opened the door to psychiatric testimony by presenting his own psychiatric expert. The testimony in Hernandez did not directly address dangerousness.

Just as in Lagrone, the rationale in Soria was "Once a defendant constructively testifies in his own behalf, he is subject to 'constructive' cross-examination by the State through examination by a court-appointed expert (of the State's or court's choosing)." Soria at n.17


Lagrone v. Cockrell, 2002 WL 1968246 at *28 (N.D.Tex. Aug. 19, 2002) ("What [Soria and Lagrone] clarify is that, under Texas law, should a capital murder defendant attempt to present expert testimony that is based on a clinical examination of him that is conducted by the mental health expert, the defendant will be deemed to have waived his Fifth Amendment rights, and the State therefore has the right to have him examined by a mental health expert, as well.")