Is the Lagrone motion presented two years ago at the Capital Murger conference still good? Does an updated version exist? Does anyone preemptively file this baby? I am going to roll 'er out before the defense has any testing done, unless advised otherwise.

The Lagrone case remains good law in Texas. Defense attorneys have resisted its expansion outside the future dangerousness context, but I don't think any court has restricted its application to that fact pattern.

No harm in filing the motion early. Judge can't rule on it, though, until you have some indication that the defense is going to use an expert who has interviewed the defendant. I see lots of cases nowadays in which the defense deliberately has the expert form an opinion without conducting such an interview. That is done to avoid the Lagrone motion.

Personally, I think you could successfully challenge an expert's opinion based on the failure to conduct an interview. What reasonable psychiatrist, for example, would form an opinion on such a delicate issue without talking directly to the defendant? We should not allow a defendant's trial strategy to weaken psychiatric professional standards.

Thank you Mr. Bradley, and I agree with the editorial. I am plowing new ground with this death decision case and appreciate the input, especially on the nuances of trial strategy.

There was recently an unpublished opinion applying LaGrone to psychological testimony in a context other than future dangerousness. I'm not in my office so don't have the cite handy. However, it was enough to make me feel safe in filing a LaGrone motion in a mini-cap in which the trial court had previously appointed a psychologist as a defense expert.

As Lisa says, in my last capital but one the defense tried to wiggle out of LaGrone by saying that they would present psych evidence only on the issue of mitigation. My judge was not buying. I, too, have filed the motion in some upcoming cases where the defense plans to bring psych evidence but outside of the classic, capital, LaGrone setting.