John Marek`s Story

John Marek's life history is a pathetic, heart-wrenching story of childhood trauma, abandonment and neglect. At the age of ten, he told a mental health evaluator, "He wants to change from being a boy who is sad all the time to being a boy who is happy all the time" (App. L, p. 6, previously filed, specifically and fully incorporated).

This sad little boy was born in Germany to an emotionally unstable mother who took large amounts of tranquilizers and diet pills during her pregnancy and to a largely absentee father, who spent great periods of time away from home serving in the military. At the age of eight or nine months, John overdosed to the point of convulsions when his older brother fed him some of his mother's medication.

Doctors said his mind would forever be affected by this overdose, and his childhood development of such skills as walking and talking was markedly slow. Labeled a "retard" throughout his childhood, John was rejected by his disappointed father and inadequately fed and clothed by his neglectful mother. Unable to speak intelligibly and suffering from constant enuresis, he was ridiculed by his peers. His parents divorced when he was seven years old. His mother remarried an alcoholic who spent the family money on liquor and who continued the rejection John had experienced since he was a baby. Despite the constant rejection, John was a loving child and tried again and again to seek affection, only to be rejected again and again. After a particularly violent family altercation, in which John came close to being shot by his stepfather, John's mother decided to give up her children. John's brothers went to live with their father, who refused to take John -- age 9, labeled a "retard", unable to speak.

Thus, at age nine, John Marek was placed in the custody of the Tarrant County, Texas, Child Welfare Unit, and began his trek through child welfare institutions, foster homes, and psychological evaluations. Incredibly, psychological testing done at that time revealed John was not retarded but of normal intelligence.

However, psychological reports indicated, John had not been able to develop normally because of cerebral dysfunction, deep feelings of inadequacy, and emotional deprivation. Over the ensuing years, psychological and child welfare reports continued to note John's emotional difficulties, his frustration and anger at his natural parents and stepfather, his learning disabilities resulting from psychological and neurological problems, his enuresis, and his feelings of inadequacy and rejection.

After passing through at least four foster families, at the age of 12, John was sent to a residential treatment facility, paid for by his father's insurance. John received various kinds of therapy and responded well, beginning to exhibit some emotional stability and academic progress.

However, when the insurance company terminated the funding for this placement, John was returned to his foster family, despite the treatment facility's pleas for continued funding, warnings that John's emotional and neurological disabilities required continued, intensive residential treatment, and prediction that removing John from residential treatment would destroy all the progress he had made.

After living briefly with his foster family, John was again placed in an institution, where psychological testing revealed that his previous progress had been lost. His scores on intellectual testing had plummeted, the result, evaluators noted, of organic brain damage and emotional disabilities. After about two years in this institution, John was again returned to his foster parents, who washed their hands of him four months later.

Following a brief stay in a shelter, John was placed in yet another foster family. He was then seventeen years old, and heavily involved in drug use. A few months later, John was convicted of credit card abuse and placed on probation. After John violated his probation, a competency evaluation noted his limited intellectual capacity, possibly resulting from brain dysfunction, and recommended drug treatment in a structured environment, stating that intervention could well reshape John's behavior.

No treatment was provided, and John was sentenced to serve two years in the Texas Department of Correction. After his release from prison, with nowhere to go, John resumed his drug and alcohol abuse. At age 21, he traveled to Florida with Raymond Wigley. Drinking heavily, the two were arrested for murder shortly after arriving in Florida.

Mr. Marek's capital sentencing jury did not hear any evidence regarding Mr. Marek's sad childhood, which had just barely concluded before he was charged with this offense. The only reason the jury heard none of this evidence is trial counsel's failure to investigate and prepare for the penalty phase. Had trial counsel conducted the appropriate investigation and discovered the readily available information summarized above, he would have presented that information at the penalty phase, as he testified at the state evidentiary hearing:

Q. If you had had Mr. Marek's mother willing to testify that she had abandoned her son and was sorry, is that something you would have wanted to present?

A. I would have put her on the stand for sure. If she was willing to come here and testify to that, I would have put her on.

* * *
Q. If you had written documents to establish the history?
A. Sure. Potential mitigating factors and there's no way it's going to come back to hurt me. Sure, want to put that on.
Q. In this case, do you recall whether the jury had any background information presented to them on Mr. Marek?
A. Just what they got in the guilt phase through his testimony.
(PC-T. 395-96).

Defense counsel had a duty to independently investigate Mr. Marek's background and history in order to determine whether any mitigating evidence was available from that background. At the previous hearing, counsel testified that he made no effort to discover whether he could obtain records from Texas regarding Mr. Marek having been in custody of the state as a child (PC-T. 317), although he knew Mr. Marek had been in foster care (PC-T. 321-22), and had information that when Mr. Marek was a toddler, "his natural father left the family and his mother remarried, this time to an abusive alcoholic.

At age nine [Mr. Marek] was turned over to the State [of Texas] and lived in a variety of foster homes until striking out on his own at age 17" (App. H, previously filed, specifically and fully incorporated). Thus, counsel did not find court records from Texas which said Mr. Marek was declared "a dependent child based on neglect" (PC-T. 326). Counsel also made no effort to obtain Texas prison records (PC-T. 336) or court records (PC-T. 337), although he knew that Mr. Marek had been in prison in Texas (PC-T. 336), and had a print-out in his file which revealed

Mr. Marek's Texas inmate number (App. I, previously filed, specifically and fully incorporated). Counsel also made no effort to check out the address on Mr. Marek's Texas driver's license (PC-T. 320), although he had a copy of that license in his files (PC-T. 319; see also App. I, previously filed, specifically and fully incorporated).

Had counsel taken any one of these simple steps, the information detailed above would have flooded in. For example, records from the Texas Adult Probation Department contain a life history of Mr. Marek (App. F, previously filed, specifically and fully incorporated). This life history explains that Mr. Marek was placed in the custody of the Texas Department of Human Resources in October, 1970, and lists the names of the special schools Mr. Marek attended (Id., previously filed, specifically and fully incorporated). With this one document, defense counsel would have had enough specific information to unearth the 99 pages of documents contained in the files of the Texas Department of Human Services (see App. D, previously filed, specifically and fully incorporated).

Similarly, had defense counsel checked the address on Mr. Marek's driver's license, he would have discovered that the address was that of Sallie and Jack Hand (PC-T. 239), Mr. Marek's last foster parents (PC-T. 241), who lived at the same address at the time of Mr. Marek's trial (PC-T. 245). They were never contacted by defense counsel (PC-T. 244-45, 320, 322-33). Defense counsel testified he never "independently" checked out the address on Mr. Marek's drivers license and therefore he had "[n]o idea" whether that address would have led to Mr. Marek's foster parents (PC-T. 320). He further testified that he "[o]bviously" did not know what information the foster parents would have led him to because "I never talked to them" (PC-T. 323).

Having been foster parents themselves, the Hands of course could have directed defense counsel to the appropriate state agency for information regarding Mr. Marek.

Defense counsel's excuse for failing to take these simple steps was that he got the "impression" that Mr. Marek did not want defense counsel to go to Texas (PC-T. 333), although Mr. Marek did not refuse to cooperate with defense counsel: "he dealt with me as much as I wanted to. . . .[He was] there to answer my questions" (PC-T. 334). Trial counsel testified that he also had difficulty in getting Mr. Marek to understand what was at stake:

Q Did you specifically go through, say, any recognized nonstatutory mitigating factors in Florida and say this is what I'm looking for?

A I'm sure I said I'm looking for -- You see, when I was dealing with John I don't think he was -- he was very flat. He had no -- he had very little emotion about it. Not the case but our relationship. He was not -- He wouldn't get angry at me for the case not going well nor would he be happy if a motion was granted. It rolled right off him.

In that respect when I talked to John about it I didn't get the feeling that he was concerned. I couldn't get him to be concerned with it. I couldn't get him to be understanding of what I needed when I talked about psychiatric background. Did he have problems? He gave me the impression that he didn't want me to go to Texas and that may have been my impression but that was it.
(PC-T. 333).

Although Mr. Marek "wanted the end [of the trial] to be positive," he did not understand the process necessary to reach that end: "I don't think he saw the short-term goals. I don't think he saw each little task as having a good effect upon the whole thing" (PC-T. 335). Counsel was so concerned about his lack of rapport with Mr. Marek that he sought the assistance of a mental health expert: "I want[ed] the doctor to give me an idea psychologically what I was dealing with" (PC-T. 338).

Trial counsel further testified that investigation was not conducted in part because of a shortage of time and money:

Q Would it be fair to say that the reason that you didn't write to anybody in Texas is you didn't have the funds available for an investigator or to have an investigator go or can you explain that?

A In terms of, you know, why I didn't write someone in Texas because the impression I had I was not going to receive anything, you know, positive. I didn't have any avenues but certainly part of the reason is that this wasn't the only case I was handling at the time. You know. This was 1983. I imagine I had 70, 80 files and I usually carry one or two murder ones. That's been my practice.

(PC-T. 330-31). Counsel also testified that to investigate he "would have had to request the Court to appoint an investigator for a very oblique reason. I couldn't have given any real reason for it" (PC-T. 318).

The testimony at the state court hearing clearly established that trial counsel did not investigate Mr. Marek's background in preparation for the penalty phase. The Eleventh Circuit has explained the proper analysis of a penalty phase ineffective assistance of counsel claim:
In order to ascertain whether counsels' failure to present penalty phase mitigating evidence was deficient,

it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.... [If not], it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted.

In this case, the attorneys failed to conduct a reasonable investigation, and this failure was not a result of a tactical choice.

Blanco v. Singletary, 943 F.2d 1477, 1500 (11th Cir. 1991), quoting Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir. 1988) (emphasis in original). Decisions limiting investigation "must flow from an informed judgment." Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989). "An attorney has a duty to conduct a reasonable investigation." Middleton, 849 F.2d at 493. See Cunningham v. Zant, 928 F.2d 1006, 1016 (11th Cir. 1991).

The duty to investigate is heightened, not limited, when a defendant is emotionally unable to assist trial counsel. In Blanco, it was explained that because Mr. Blanco "was noticeably morose and irrational" when defense counsel were attempting to prepare for the penalty phase, "[c]ounsel therefore had a greater obligation to investigate and analyze available mitigation evidence." Blanco, 943 F.2d at 1502.

Nor is the duty to investigate restricted by counsel's impressions that the defendant did not want counsel to pursue certain matters. "[T]rial counsel was [not] excused from investigating [Mr. Marek's] background because [Mr. Marek] allegedly instructed counsel that he did not want" such an investigation undertaken or such evidence presented. Eutzy v. Dugger, 746 F. Supp. 1492, 1499 (N.D.Fla. 1989). Trial counsel must investigate without regard to a defendant's instructions:

Eleventh Circuit case law rejects the notion that a lawyer may "blindly follow" the commands of the client. Thompson v. Wainwright, [citation] (defense counsel's failure to conduct any investigation of the petitioner's background allegedly out of deference to the client's wishes, fell outside the scope of reasonable professional assistance).

Although a client's wishes and directions may limit the scope of an attorney's investigation, they will not excuse a lawyers failure to conduct any investigation of a defendant's background for potential mitigating evidence. [citations] At a minimum, a lawyer must evaluate the potential avenues of investigation and then advise the client of their merit . . . Such neglect -- albeit because counsel expected a different result -- fell below an objective standard of reasonableness and, as a result, trial counsel's representation fell outside the range of competent assistance.
Eutzy, 746 F.Supp at 1499-1500 (emphasis added).

Blanco held that trial counsel who unquestioningly accepted instructions not to call penalty phase witnesses from a client who was "depressed and unresponsive," 943 F.2d at 1502, acted ineffectively and prejudiced his client, because "the ultimate decision that was reached not to call witnesses was not a result of investigation and evaluation." 943 F.2d at 1503. Rather, counsel was ineffective when "counsel essentially acquiesced in Blanco's defeatism without knowing what evidence Blanco was foregoing." 943 F.2d at 1501. Mr. Moldof's performance here was similarly deficient.

Mr. Moldof acknowledged that Mr. Marek was generally lethargic and apathetic. Regarding the investigation of background materials in Texas, Mr. Moldof had the "impression" that Mr. Marek did not want Mr. Moldof to go there. Under Blanco and Eutzy, this impression that the defendant did not want counsel to contact those with background information does not excuse the lack of investigation. As in Blanco, counsel's purported decision not to investigate was not reasonable. 943 F.2d at 1502.

Most recently, in Williams v. Taylor, the United States Supreme Court reversed the Fourth Circuit Court of Appeals' denial of an ineffective assistance of counsel claim. 529 U.S. 362 (2000). Specifically, the Supreme Court found that Williams' lawyer rendered prejudicially deficient performance by failing to conduct an investigation that would have uncovered extensive records describing Williams' childhood and failing to introduce the mitigation evidence that was available. Id. at 396. Trial counsel testified that he made a tactical decision to focus on his client's cooperation with the police, emphasizing his voluntary confession. The Supreme Court ruled "the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams' favor was not justified by a tactical decision to focus on Williams' voluntary confession." Id

.
The Supreme Court also made clear that a defendant's burden in postconviction is to prove that the mitigation "may alter the jury's selection of penalty," not to completely rebut the State's evidence in aggravation: "Mitigation evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death eligibility case." Id. at 398.

Similarly, in Mr. Marek's case, trial counsel's unsupported belief and Judge Kaplan's finding that the records describing Mr. Marek's childhood would have provided "negative aspects" was in error and constituted deficient performance. Trial counsel did not make a strategic decision not to present the records which would illustrate a tortured childhood characterized by neglect, abandonment and severe psychological and emotional problems, because as in Williams, counsel failed to obtain the crucial records. Clearly, due to the funding, counsel felt hamstrung and unreasonably failed to collect necessary documentary evidence which should have presented to the judge and jury that sentenced Mr. Marek to death.

Indeed, the neuropsychological testing not done at trial in order to save money has now been completed and confirms the indications of brain damage evident from Mr. Marek's history. This evidence established significant and compelling mitigation which trial counsel failed to develop and which the Rule 3.850 court did not consider.

Judge Kaplan previously ruled that trial counsel did not investigate, but that the decision not to investigate was reasonable: "I think Moldof indicated why he didn't investigate" (PC-T. 487). The circuit court also indicated trial counsel could have obtained the background and life history information presented by Mr. Marek in the post-conviction process: "he probably could have done some research on his own or asked for an investigator" (PC-T. 488). However, concluding that the history of severe abuse, neglect to the point of abandonment, and evidence of brain damage would make "any reasonable person[] want to make sure that Mr. Marek never ever walk the streets again" (PC-T. 488), the state court denied relief.

Trial counsel must conduct investigation before making any strategic decisions. Williams; Blanco; Middleton; Harris. "[I]gnorance about the type of mitigation evidence available . . . preclude[s defense counsel] from making strategic decisions on whether to introduce [such evidence]." Harris, 874 F.2d at 763.

Moreover, trial counsel attempted to introduce the mitigating evidence he did have available. Clearly, he would have used evidence regarding Mr. Marek's background if he had known about it. Counsel attempted to introduce the report of Dr. Krieger, but the trial court ruled it inadmissible.

Counsel also wanted the jury instructed on the no significant criminal history mitigating factor, but that instruction was denied. Again, that instruction would have opened the door to negative information regarding Mr. Marek's past, yet counsel requested the instruction.

Defense counsel testified that he would have presented the testimony of Mr. Marek's mother and documents regarding Mr. Marek's mental health and foster care history if such evidence had been available (PC-T. 395-96). Where defense counsel "conceded that he would have used the evidence had he known about it," one cannot "conclude that effective counsel would have made a strategic decision to forego [such] testimony." Harris, 874 F.2d at 764. "[T]hat trial counsel had no valid tactical reasoning behind his failure to perform a background investigation for possible mitigating evidence is supported by" trial counsel's testimony that "had he known of the records he would have presented them for mitigation." Middleton, 849 F.2d at 494.

Trial counsel did not investigate, attempted to present evidence which contained negative information, and testified he would have presented other evidence had he known about it. Thus, there is no tactical reason for failing to present that evidence. "[I]n light of the ready availability of this evidence and in the absence of a tactical justification for its exclusion, the failure by trial counsel to present [the mitigating evidence] fell outside the range of professionally competent assistance." Cunningham, 928 F.2d at 1018.

Had counsel performed reasonably, a wealth of compelling mitigation would have come forth in abundance. Literally from birth, Mr. Marek's life was one of abandonment, abuse, and neglect. This pathetic story emerges from voluminous foster care records, from Mr. Marek's natural parents who abandoned and neglected him, from foster parents who failed to provide the stability required by a psychologically and organically damaged child, and from numerous psychological evaluations beginning when Mr. Marek was only nine years old. All of this information is mitigating; none of it was presented to Mr. Marek's sentencing jury.

John Richard Marek was born September 16, 1961, to Margaret and Jesse William Grimm; years later, his name was changed from Grimm to Marek. Margaret and Jesse had been married in 1956. Jesse was a U.S. Army serviceman. Their first child, Mark William Grimm, was born in 1957; their second, J. Michael Grimm, in 1959 (PC-T. 79-80, 209-10). At the time of John's birth, Jesse was a sergeant and stationed in Germany. The pregnancy was a difficult one: "My body tried to abort him. And I had to spend a lot of time in bed" (PC-T. 79). Margaret was taking a considerable amount of medication at the time.

After John's birth, Margaret's emotional problems continued. "[She] was the type of mother that cared more for herself and her father and grandmother in the states than she did for the rest of the family" (PC-T. 210). She kept taking a plethora of medication, from a shoe box filled with birth control pills, darvon, valium, diet pills, and sleeping pills (PC-T. 107-08). When John was eight or nine months old, his older brother, J. Michael, got into the shoe box and fed pills to himself and John. When Margaret discovered this she did not know what to do:

I was afraid to tell their daddy and I was afraid not to. So finally I decided well I have to, you know. Even if he hurts me. I've got to tell him, you know, it happened.

Q Were you afraid he would hurt you if you told him?

A Yes. Because, see, I was supposed to be taking care of them and I didn't. So I called him and told him he had to come home. I had something to show him and tell him. And he come home and we took them in the ambulance to Frankfurt. Before we got there they started going into convulsions and by the time we got there, you know, they were more out than conscious. And they had to pump their stomachs. And they said if we hadn't got them when we did they would have died. Especially John would have died because he was littler and Michael had shared more with him than he had took himself.

Bill says that the doctor told us then that John's mind would be affected by it.
(PC-T. 108)(emphasis added).

Jesse vividly recalled the incident:

I'd come in from the field. There wasn't anything around to eat, 8:30. It was during the winter months. It was dark. The children were all in bed. I'd been gone for 14, 15 days. I don't remember now. I was home for about an hour. Margaret was telling me about her mother and her grandmother and her father and this, that and the other and I was arguing. I was quite disciplined about taking care of -- Then she informed me that Jay Michael, the second son, had fed the baby, which was John, pills. Vitamin pills. Valium. Birth control. Diet eat pills. Whatever.
I immediately, as soon as she said pills, I immediately went in their room and grabbed them.

They were both in convulsions at the time. And rushed them to the dispensary. We were in an outlying area and it was not full medical facilities there. They pumped their stomachs. Both boys the same. You know. Two different areas but both at the same time, for about approximately an hour and then we transported them by ambulance to Frankfurt, Germany, which is a general hospital for the military services in Europe.

I stayed with them until the doctors came out of the emergency room and told me they would live but not to expect anything as far as the babies being able to cope with life. In other words, that he was brain dead. It was hard for them to learn anything. It would be hard for them to do anything and to expect the worse. Especially little John. Jay Michael, from what he had told me, Jay Michael did not take as many as the pills as he had fed John.
(PC-T. 211-12)(emphasis added).

Following this drug overdose there were obvious changes in John's behavior. Jesse explained the changes he noticed:

John could never sleep. At night he would cry. Walk the floors with him. He cried during the day. As he got older he was suppose to come to the age of where he could do things. He could never do them. He didn't start crawling until he was almost 18 months old. And he was well over two years old before he started to walking. Way over two years old.

His speech was never clear. It was a slurred speech. You had to listen real close. This is as he grew older until he started talking. He could never learn how to ride a tricycle, bicycle, normal like the other children. We'd have to work with him work with him, work with him to be able to get him to do something like this. Catch a ball. Throw a ball. He was even into his first years of school he was never able to do what the other children were doing at three or four years old.
Q Did you think he was retarded?

A Yes. I do. I did. I requested help for him through the military services, through the County social services. Through the school board.
Q Was he different than your other children?
A Yes, he was. Very, very different in every way. The normal kids playing in the yards and stuff, as children will do, John was never in the group playing. John was always off to the side doing something else or just watching.
(PC-T. 213-14)(emphasis added).

John was labeled retarded. His relationship with his parents suffered as a result. Jesse described Margaret's relationship with John:

Her relationship was like get out of here. Don't talk to me. I can't stand your talking. I can't stand your shrill voice. I can't stand this. I can't do that. Go sit down and shut up more than the other children.
(PC-T. 214).

Jesse blamed Margaret for John's condition. He also questioned whether he had fathered John. "[H]e couldn't accept that he could have a child that was like that" (PC-T. 92). Jesse treated John differently than the other children:

Mark was the oldest. Michael was the second one but Michael was bigger earlier so they were like twins sizewise and he would set up competition like between them. Mark, you are just a baby. Look here, Michael is doing this; climbing this tree already, you know, and things like that. He didn't do that with John. He was. He was disappointed that John was a special education child and mostly he just did nothing with John. Ignored him.

Q Do you know why or did John know why?
A John would ask me times why Daddy didn't play with him. Why Daddy didn't do anything with him. Why Daddy pushed him away. Yeah. John was aware of the attitudes. Yeah. A special education child or if you have to call him a retarded child is more tuned in on feelings than we are. They feel rejection even if the words are acceptance. And in a way I had rejected him too. I was so ho[n]ed in on wanting a girl and disappointed.... He wore pink as a baby because I was determined he was going to be a girl. I love John but I was neglectful [sic] of him because of my emotional state at the time.
(PC-T. 85)(emphasis added).

Jesse's military duties required him to be gone from home for long periods of time. He never spent a full year at home with the family. His trips lasted anywhere from one week to fifteen months. While in Europe he was away from home about ten months out of the year. When the family lived in Oklahoma in the mid-1960's, Jesse was away a lot serving in Viet Nam (PC-T. 217, 221). He frequently had concern that in his absences Margaret was neglecting the children. When he came home he found inadequate food and clothing (PC-T. 216-17). Margaret, however, felt that Jesse was neglectful of her and the children:

I wanted him to have time for our family but he didn't. I felt he chose the army over us every time. I was furious with him when he went the second time to Vietnam.
(PC-T. 86).

John's problems continued and grew worse, as Margaret explained:

You never knew how he would react to things because he doesn't react the way I would have or the other boys would have. He saw things as sudden. He didn't understand cause and effect. He just knew he never could have a good time. Things always messed it up and he didn't understand why.

The kids made fun of him. Didn't want to play with him because he had a speech impediment and they couldn't understand except if he didn't want to be understood and they understood every word he said.

* * *
A He always went to special education. He never went to regular school. He had a bladder problem. Clear up to - Well, actually when he went into foster care he still occasionally had accidents under stress.

* * *
A It wasn't like several times a day but it was frequent. It was almost daily. It was frequent. It was embarrassing to him. He'd say things like me spill water, you know. But he didn't. He didn't fabricate big stories like his brothers would to get out of being in trouble. He generally would say I did it even though he didn't do it. He didn't show much imagination. He showed a lot of love. He was precious when he was little.

Q You mentioned the word retarded. Did you ever have John tested?
A Yes, he was evaluated as trainable but not educable.
Q Was he ever made fun of for being retarded?
A Oh, yes. Yes. A lot.
(PC-T. 87-88)(emphasis added).

In 1968, Margaret and Jesse ended their marriage. Margaret kept the children, but Jesse had visitation. John was upset by the breakup. During Jesse's visitations, John was upset by Jesse's leaving (PC-T. 219). In 1970, Margaret remarried to Arlis Bagley, an alcoholic. He was "a functional illiterate" (PC-T. 93). Margaret explained:

I mean if he will take a check for a million he will write (sic) it. He hasn't a penny in the bank. I mean he will take the food money, the rent money, the utility money. He will take your last dime if you will loan it. He's going to drink one way or another.

Q Did that cause any problems for you with four still -- they were still small boys at that time?
A Yes, yes and they needed a father. And what they got was belittle meant [sic] and not wanting to be bothered. What they got was a hundred times worse than what their father had been but it took me years to see that.

Q How would Arlis treat John?
A John he treated the worse because John was the most forgiving of the four. The other three soon realized you don't try to hug Arlis. You don't try to. You stay away as much as you can from Arlis.
But John always tried again and again and be rejected again and again. He was a very loving child.
Q How would Arlis reject him, just by not hugging him or?
A No, he generally told him to get away, retard.
Q He would call him that?
A Oh, yes. I couldn't get him not to. He would make him go to bed if nothing else. He didn't want to be bothered with any of the children. He didn't want to have to provide for them. And he wanted the use of the support money that [Jesse] give us. But he didn't --
(PC-T. 93-94)(emphasis added).

During her marriage to Arlis, after the family had moved to Texas, an incident occurred which caused Margaret to give up her children:

I had had a job washing dishes there in a restaurant but I'd lost it because Arlis came in drunk there. Lost me the job.

His mother and her boy friend had been helping to feed us but then they left and I didn't have anything. So I went to Red Cross and because their father was in the military Red Cross helped us once. Then Arlis got mad that night because the car wouldn't start. And he took a handgun and fired it into the car. The bigger boys had run around to the back of the house but John started to walk between the car and Arlis and scared me to death and of course I went hysterical screaming at John to go round back and tried to get Arlis not to empty the gun into the car.
So I called [Jesse] and told him he's going to have to take the boys; that I couldn't handle the situation. Until I could figure out what to do. They were about to put us out of the house because we hasn't paid the rent. That day they had turned the electricity off. It was going into winter. He had no job.

Q You were living in?
A Fort Worth.
Q Northern Texas?
A Kind of out in the country. I was totally scared to death. I don't know what to do so I called [Jesse]. He said he'd take the three boys but he wouldn't take John.
Q Did he say why he wouldn't take John?
A Because John wasn't his.
Q Did he tell John that or did John know that?
A Arlis told John. John - the welfare people came and got John before [Jesse] came for the boys. [Jesse] came to the house and I gave him their clothes and everything and it was supposed to be a temporary thing. But it became a life changing decision. They never were back in my custody ever again. I visited singularly but never as a family. We were never a family again.
Q How soon after the shooting incidents did child welfare come and get John?
A Next day.
Q Did he know why they were taking him?
A I think I explained to him I couldn't take care of him and that as soon as I could he'd come back. I don't remember for sure what I said.
Q But he knew that he wasn't going with his father?
A Yes.
Q And that the other boys were?
A Yeah. Yeah.
Q And Arlis told him something about that?
A Yeah.
Q What did Arlis tell him?
A That his Daddy wouldn't take him. That his Daddy didn't want him because he was retarded.
* * *
Q Ultimately who did you choose to stay with, your kids or with Arlis?
A Arlis and they felt that. They felt I chose Arlis over them. At the time I rationalized it and said the foster care is, you know, they're giving.
(PC-T. 97-100)(emphasis added). Subsequently, Margaret spent time in a sanitarium (PC-T. 102).

The Tarrant County Child Welfare Unit obtained custody of John on October 21, 1970. At that time John was adjudged a "dependent and neglected child." (App. K, p. 3, previously filed, specifically and fully incorporated). After being adjudicated a neglected child, John was placed in foster care with Lena and Virgil Cox. He was enrolled in Saginaw Elementary School on November 16, 1970. School records note that John was "put in foster home due to rejection by new stepfather." His teacher commented, "John is in need of a great deal of love and understanding. Needs to feel success and acceptance." App. K, p. 1. He was placed in a class for the emotionally disturbed. App. K, p. 6. On November 30, 1970, John was withdrawn from his new school when he was moved to a new foster home. App. K, p. 1.

In December 1970, when John was nine years old, a psychological evaluation, including the Wechsler intelligence scale for children, revealed that John was not retarded as everyone had believed. His verbal I.Q. was 91, performance I.Q. was 117, and full scale I.Q. was 104. The evaluation said that, while in foster care in Saginaw, John was in a class for the "minimally brain injured" and explained his speech difficulty:

John is a nine-year old boy of normal size and appearance. His most obvious disability is a severe speech and language handicap. His speech would be unintelligible to most listeners much of the time. And even an experienced examiner occasionally would have difficulty understanding his speech out of context.

His speech and language problem is characterized by severe articulation difficulties, frequent non-fluency, immature grammar and syntax, the use of gesture to aid self-expression, and occasionally the use of devices to get out of talking altogether (a shrug with a "don't know" response). At times when John is trying to say something, he becomes very non-fluent; when the listener tries to put together a sequence of incorrect sounds over a prolonged period of time, comprehension becomes almost impossible.
* * *
This youngster had had a previous psychological evaluation which suggested he was of borderline potential intellectually. It is easy to understand how this estimate of John's ability might have been obtained.

John seems to be a sensitive child who is acutely aware of feelings and perhaps expectation of others toward him -- it may be that he responds in his "borderline" manner when he thinks this is how the significant person with him feels about him.

App. L, pp. 2-3 (emphasis added).

John was placed in a good foster home and a small private school for children with learning disabilities. He made very good progress in learning to speak intelligibly. However, John was removed from the placement because of the foster mother's ill health. He was placed with new foster parents who enrolled him in public school where he attended a special class for children with cerebral dysfunction. App. D, p. 16, previously filed, specifically and fully incorporated. An evaluation conducted on November 12, 1971, contained the following:

John produces an unusually long Rorschach in comparison to most youngsters of his mental age. The length is partly a function of many detail responses, which may suggest a need to select limited aspects of an environment to achieve a sense of stability in almost a compulsive manner.
Edged and tiny detail are also characteristic of protocols of children with cerebral dysfunction. There are many elements of this Rorschach which suggest organicity. First of all, John is a "slow starter." He begins with extremely poor perceptions, but as he moves along, he gradually begins to get the idea, and by the last few cards he is doing a rather good job in responding. This sort of approach is often typical of MBI children.

John's protocol contains many other "organic indicators". He displays excessive perseveration ("Butterfly" is the first response for five straight cards!) He is hung up on lines and symmetry. He does some color naming, and as mentioned previously he shows a large number of detail responses with a tendency to tiny and edged detail.

* * *
John seems to have a deep sense of inadequacy and poor self concept. The boy has "one leg broken off" and the butterfly has "only bones, no wings". This seems to be an oversensitive and easily hurt youngster who tries to hide his sensitivity. John seems to be anxious and may see himself in a tenuous situation with possible repercussions. Thus the boy is pictured as "sitting on a cannon", and the cloud is "blowing air and getting everything around it all hot and bothered".
* * *
John's story telling involves a little boy who likes to play cards and got involved in sports, such as bowling, football and basketball. He also likes to play with army men, and sometimes at night when his light is supposed to be off, he stays up and plays with his army men in a "little bit of light." He doesn't like it because other kids call him squirt, and he is worried about his daddy who is over in Vietnam. He is unhappy when he has no one to play with. He wants to change from being a boy who is sad all the time to being a boy who is happy all the time. For his three wishes he chooses army men, a bicycle mirror and turn signals for his bike. He wants to grow up to be a policeman.

When the story was finished, John grinned in a somewhat poignant manner and said, "Did you know the little boy in the story was me?" He then told of a recent very happy experience. He had spent the night at another little boy's house, and they had stayed up late and watched an Elvis Presley movie.

SUMMARY

John has previously been diagnosed as a youngster with cerebral dysfunction, and the Rorschach would certainly seem to confirm this diagnosis. John's protocol actually suggests somewhat better ego strengths then would be predicted on the basis of history, and intelligence not markedly reduced, but rather erratic and disorganized, probably on a basis of organicity. There is no suggestion of psychopathology. Rather this seems to be an immature youngster with rather basic defenses who is probably making some sort of neurotic adjustment to his very real problems. Psychotherapy might be of help, but there are certainly many reality problems confronting this youngster.
App. L, pp. 5-6, previously filed, specifically and fully incorporated.

A psychiatric evaluation was conducted on November 17, 1971, by Dr. Henry Burks. It concluded:

Grossly, his mental processes seem intact except for the difficulty in relating and the affective disturbances. I would consider him as an emotionally deprived boy with minimal cerebral dysfunction syndrome and language disability who is having some situational reaction to a difficult foster and school placement. He is currently taking Dexedrine, 5 mg. twice a day, and I added Mellaril, 10 mg. three times a day to this program to see if it could help his anxiety level. I think this boy is probably in need of supportive psychotherapy or casework services, but I don't know where they are available.
App. L, p. 7 (emphasis added).

John saw a psychiatrist on a regular basis. Progress notes reflected the persistence of John's emotional difficulties arising from his abandonment by his parents. These notes also reflect John's placement with foster parents from whom he took the name "Marek." During this time period, John was prescribed Dexadrine, Mellaril, and Elavil. See App. L., pp. 12-28. These notes provide a very revealing portrait of John:

3-27-72: This was a joint interview with Mrs. Marek. John's foster mother, and Mr. Purnell, John's welfare worker. They wanted to know about John's progress and the prognosis. I told them it was my feeling that because of John being traumatized so much that it would be expected that he would continue having problems for years to come. Mr. Purnell mentioned that he had gotten a letter from John's father who is in Europe and that the father indicated in the letter that he is interested in John and hearing about him, but he definitely doesn't feel in the capacity to provide a home for him. Mrs. Marek indicated that she is not planning to adopt John but she is willing to continue having him, but she cannot promise that she will keep him until he is over his childhood and adolescence. She is just going to play it by ear.

4-10-72: Today we had the session with John in the playroom. Immediately after entering, he started kicking the ball very hard repeatedly. I told him that it appeared to me he was quite angry. At first he denied it, then he said he was still angry at his step-father, Mr. Begley, for whipping him each time he wet the bed, which was something that he could not help and could not stop doing it. Then I saw Mrs. Marek jointly with John and she indicated that last week he had gone to the house where he used to live with his natural parents. After that, during the rest of the week, his behavior was not good. He wet the bed every night and this seems to irritate his foster parents.

4-19-72: John told me today that he feels his foster mother and his foster sister are keeping a secret from him, which is that his natural mother is not taking him back. He indicated that he was supposed to be away from his natural mother for one year and then after that be returned to her. He has ambivalent feelings towards his natural mother.

6-9-72: John is a child who has been seen by Dr. Serrano. He has evidences of deprivation, the foster child syndrome, and learning disability which is probably on both psychological and neurological basis. He had been improving greatly through his psychotherapy. When Dr. Serrano left, however, there was a fairly massive regression, some self-destructive behavior, and a return of the enuresis.

2-28-74: First I interviewed Mrs. Marek and she said that during the past week John was gone on Saturday for 8 hours. He has continued wetting his pants, and he also had an episode of soiling. Mrs. Marek expressed the opinion that John needs more structure than she is able to provide, more so now when she is running for office, and I agree that John needs more structure than he is getting right now. She is considering the Adventure Trails of the Salesmanship Club in Dallas, and St. Joseph's School of the Catholic Charities a possible placement possibilities, and I also gave her the name and address of Shadybrook School in Richardson as another possibility. She is going to check on them and see what kind of placement she can come up with. Champus Insurance will cover 80% and the rest will be paid by the Welfare Department.
App. L, pp. 15-28 (emphasis added).

Another psychological evaluation of John was conducted in April of 1974:
John's story telling suggests that here is another foster child still fantasizing about and idealizing his natural parents years after he has left the natural home. The boy in the story is afraid of his stepfather who is always hitting him and wishes he were dead. He hates his mother and stepfather, so he goes to the Child Study Center and talks to the psychiatrist who sees that mother and step-father are divorced and mother remarries natural father. Then mother stops "all that marrying and divorcing", and the family lives happily ever after. (A rather large order for the psychiatrist!)

John's written expression is so poor that his Sentence Completion test is of little value. Two stories are perhaps of significance on the Tasks for Emotional Development Test. In one John's present foster parents come through as helpful, fair and concerned. In another the boy sees himself as ugly looking and rejected by his peers and lacking in abilities and confidence. Also there are suggestions John is still having difficulty getting along with his present foster sister.
App. L, pp. 10-11 (emphasis added).

In the spring of 1974, Mrs. Marek decided to remove John from her home and sent him to a residential treatment facility. Funding for this move came from Jesse Grimm's Champus Insurance obtained through the military. John arrived at Shady Brook Residential Treatment Center for Children in Richardson, Texas, on June 11, 1974. App. B, previously filed, specifically and fully incorporated. In August 1974, an Academic Progress Report on John's initial adjustment at Shady Brook noted that John "appears to lack assertiveness in some peer interactions which results in his being bullied by the more aggressive group members." App. C, p. 4, previously filed, specifically and fully incorporated.

It also explained, "John's weak ego seems to cause him to withdraw when there is any conflict, either with other students or with the teacher." Id. A March, 1975, report noted that John had shown much improvement, although his bed wetting continued. App. C. On the Stanford Achievement Test administered in April, 1975, John's scores were in the 5.2 to 6.1 grade equivalent levels. This was shortly before John's fourteenth birthday when he should have been near the end of an eighth grade level. In June of 1975, intelligence testing revealed a verbal score of 87, a performance score of 103 and a full scale score of 94. App. B.

In September, 1975, Champus said funding would soon be terminated for John's placement in Shady Brook. The medical director wrote Congressman Jim Wright protesting the funding cut:
To review you briefly, John is the son of a retired serviceman. The family abandoned John a number of years ago for all practical purposes. He was in the custody of Tarrant County Welfare before being placed in two different foster homes. John had reacted to neglect and abandonment primarily by an autistic-like withdrawal into himself and by lack of speech development. Mrs. Marek became interested in him and took him into her home in late 1971. She sought help for him on an outpatient basis through the Child Study Center in Fort Worth, and struggled to keep him functioning in their home and in the community. The boy's emotional problems prevented her being able to do that.

We admitted John to Shady Brook June 11, 1974, and immediately placed him in individual therapy with Joseph Kugler, M. D. He has had remedial education, speech therapy, individual psychotherapy and group therapy. John's response has been good. School achievement is still approximately two years behind appropriate grade placement. We have seen him relinquish his introverted amateur adjustment in favor of periods of emotional stability, academic achievement, and outgoing peer relations. Psychological factors are difficult to describe in a concrete way and I will not go further in that direction.

The gist of the matter with John is that he has made improvement but if he is discharged at this time it is unlikely that the Mareks or any other family can sustain him within their group. There is no educational facility in Fort Worth equipped to work with him. He continues to wet the bed almost nightly. He gravitates toward delinquent behavior as he is suggestible, immature and impulsive. It is our judgment that a considerable effort has been made by the Marek family, by the community agencies in Fort Worth, and by us as a residential treatment facility. To stop now will negate what has gone before.
App. C, p. 27 (emphasis added).

The medical director also wrote Dr. Dane Prugh for help preventing the cutback on Champus funding, and acknowledged that there was a tendency at Shady Brook to under diagnoses:
I have wondered whether we have hurt our position by a tendency to "under diagnose". I am sure that you can appreciate our often not wanting to label a seriously disorganized child from a chaotic home situation as psychotic, even though at times under stress he functions at a psychotic level. Even though it hurts our presentation of the case now, I have always felt that such labeling hurts the child even more and particularly those whom we feel have a good prognosis. Does your committee take this viewpoint into account?
App. C, p. 30.

Champus refused to extend funding. Shady Brook's director of admissions wrote Mrs. Marek and described how John was taking the news of the funding cutback:
Dr. Kugler saw John for the last time on Thursday morning, October 2nd. He chose to do this at his own expense as he felt it was something he wanted to do. I had explained the financial situation which would prevail after September 30th and told Dr. Kugler that we would be unable to continue the individual therapy sessions. It was a tearful parting for both of them. I spent some time with John later in the morning trying to simplify as best I could the arbitrary CHAMPUS decision. One of the boys in John's dormitory had already left earlier in September because of a termination of CHAMPUS, so that part was not new to him.

App. C, p. 34. On October 28, 1975, the program director of the Tarrant County Child Welfare Unit wrote Champus making a last ditch appeal for a continuation of the funding for John:
This is a formal request from this agency that the decision to terminate the CHAMPUS cost-sharing benefits to John R. Grimm be reconsidered. John has been in residential care at Shady Brook School in Richardson, Texas since June 11, 1974. As you are aware, John Grimm has been in the custody of the Tarrant County Child Welfare Unit of the Texas State Department of Public Welfare since October 21, 1970.

This agency and other community resources have made all possible efforts to address the emotional problems of the child evidenced in such symptoms as enuresis, encoprisis, fire-setting, a handicapped speech, intraversion and acting-out behavior. He further has had educational difficulties resulting from minimal cerebral dysfunction syndrome.

John was placed in the licensed foster home of Mr. and Mrs. Gabriel Marek on August 21, 1971. Mr. and Mrs. Marek have responded to John's needs and demands with more patience, understanding, love and concern than many children receive from natural parents. The Mareks have certainly done more for John than any foster parent would ever be asked to do.

Prior to placement at Shady Brook, John was receiving out-patient therapy and attending special classes with children who have cerebral dysfunction. However, these resources were not sufficient to enable John to live successfully in the community. Jose N. Serrano, M.D. recommended John be placed at Shady Brook. (Dr. Serrano was John's psychiatrist at the Child Study Center.)

This agency has been very pleased with the care which John has received at Shady Brook. In the milieu program of remedial education, speech therapy, individual psychotherapy and group psychotherapy, John has made substantial progress in his peer relations, speech and educational achievements and has exhibited a higher level of emotional stability and maturity. However, it is the opinion of treatment staff that John has not yet reached a level where he could be sustained in a foster family or sufficiently assisted by existing educational facilities in the community.

As Dr. Jack Martin Medical Director of Shady Brook, notes: "He continues to wet the bed almost nightly. He gravitates toward delinquent behavior as he is suggestible, immature and impulsive." Additionally, the Mareks also do not see John as yet ready to return to their home. It is projected that John will require an additional nine to twelve months of residential treatment before he can successfully reenter the community.

Because of their desire to see John's treatment continued, the staff at Shady Brook have allowed him to remain while they receive only the $300 per month supplied by Tarrant County. (This is the limit that the county will pay.) However, this arrangement cannot continue beyond the end of the year. A great deal of effort from many sources has gone into the progress made thus far by this child. To stop the treatment now could negate the progress and drastically diminish this child's chances to be an emotionally stable and productive member of the community.
App. C, pp. 38-39.

In December 1975, Shady Brook issued its last progress report on John:

In the dormitory, John has made gains in some areas, with considerable difficulty remaining in others. He shows increasing willingness to deal with his problems in a realistic manner, seeming to be able now to correlate his own actions to the consequences that follow. This is contrasted with earlier attitudes that unpleasant consequences were forced upon him unfairly by elements beyond his control. Behavioral outbursts occur less frequently, as John is slowly learning to replace external forms of discipline with self-control.

Peer relationships remain more difficult than adult relationships. He has not been able to form a close friendship in the dormitory, although dorm acceptance of him is increasing. His immature responses to the others have diminished to some degree, as have their complaints of him. John relates well to the staff, with dependency expressions being most frequent. John's bed wetting has increased since the summer.
App. C, p. 41.

On January 23, 1976, John left Shady Brook. App. B. After he lived briefly with the Mareks and took their name in April of 1976 (App. D), although they never actually adopted him, John was placed with the Devereux Foundation in Victoria, Texas. He was enrolled in June of 1976 under the name John Marek. An admissions psychological evaluation revealed that much of the progress made at Shady Brook was already gone:

The intellectual picture requires some explanation. A Full Scale Wechsler Bellevue I.Q. of 82 was obtained placing the patient in the Dull Normal range of intelligence. The Verbal I.Q. was 64 and the Performance I.Q. was 104. Subtest scores ranged from a low of 1 on Arithmetic to a high of 12 on Picture Completion and Block Design. This young man at some time in the past was potentially capable of functioning in the Bright Normal range. His longstanding emotional disturbance has significantly lowered his overall intellectual functioning, but his basic cognitive grasp remains average.

* * *
A fairly complicated picture with the chief diagnostic impression being ego diffusion/ fragility with moderately severe general emotional disturbance. Emotional integration is poor with inability to form goals, frequent outbursts of impulsivity and, perhaps most important, thinking disorganization. At least borderline or latent thinking disturbance is seen as present. In fact, the common denominator behind much of the patient's fairly self-defeating behavior is seen as a thought disturbance.

Currently this is not crystallized, and the next several years will determine future levels of adjustment. Level of depression is only mild with the level of anxiety being only mild as well. This young man's inability to form goals reflects his vacuous view of himself in the world. There is a fluid, changing, fragmented quality to this young man.
App. A, pp. 29-30, previously filed, specifically and fully incorporated.

An evaluation conducted at Devereux on October 19, 1977, was very insightful:

A Full Scale Weschler Bellevue I.Q. of 80 was obtained, placing the patient in the Dull Normal range of intelligence. However, this figure must be interpreted with caution because of the wide verbal performance discrepancy. Verbal I.Q. was 67; Performance I.Q. was 99. The overall profile is similar to one obtained in 1976, when John entered Devereux. At some time in the past this young man was potentially capable of functioning in the Bright Normal range of intelligence, but due to his various problems have been unable to realize this potential.

The tests strongly suggest underlying organicity, reflected in a language/learning disability syndrome. Academic information is very poor, and general verbal skills are also poor. Perceptual motor dysfunction is indicated. However, in terms of specific etiological contributors, organicity must rate a second place to this young man's severe emotional disturbance.

* * *
This young man shows many indications of developing an inadequate personality disturbance. That is, he is increasingly seeing himself as an inadequate person, partially due to his bed wetting, but chiefly due to the lack of any kind of positive male identification. Increasingly, he sees himself as a bummer, a fool, a dummy, etc. This does not constitute a step backward, but more accurately a clarification in diagnoses.

This young man had all of these features when he entered Devereux, but they have become more clearly evident diagnostically during the time he has been at Devereux. Accompanying his inadequacy feelings and the overall inadequacy constellation are a variable morass of underlying depressive feelings. While John is only mildly depressed, his depression extends very far back in time and is fairly well and deeply set.
App. A, pp. 17-18.

In May 1978, John still had a bed wetting problem which caused him much embarrassment. "[H]e continue[d] to feel so worthless -- feeling that he [was] a nothing." The Devereux staff felt John needed to "find something he can do and find successes and gain more self-confidence to strengthen his feeling of self-worth." App. A, p. 11. John was discharged from Devereux at his request on September 18, 1978.

The discharge summary noted "John's feelings of inadequacy among peers and a feeling he would like to return to a Unit where there were younger and smaller children." App. A, p. 5. John went to the Marek's where he attended public school and worked at a gas station. In October 1978, Mrs. Marek reported John had "regressed in his enuresis problem after his birthday because his natural father had not called or sent a present to John as he was supposed to. Since his birthday, John ha[d] resumed his bed wetting." App. D.

In December, John quit school. In January, the Mareks washed their hands of John. Texas Welfare officials placed John in a shelter. He wanted Jesse Grimm's phone number which the welfare officials obtained from Margaret Begley. App. D, Summary of Movement from 01/01/79 to 09/28/79. In March of 1979 he was placed with new foster parents, Sallie and Jack Hand (PC-T. 239).

In May, 1979, John was charged with credit card abuse for attempting to charge $55 on a credit card a customer had left at the gas station where he worked. App. F, pp. 6, 9, previously filed, specifically and fully incorporated. John was placed on probation. App. G, p. 3, previously filed, specifically and fully incorporated. In 1980, probation was revoked because John had failed to attend a counseling and vocational program, and John was sentenced to two years in state prison. App. G, p. 4.

During probation revocation proceedings, a competency evaluation noted that John had developed a substantial drug abuse problem, mainlining heroin and using marijuana, cocaine, speed, and downers, but that John had functioned adequately in jail where drugs were not available. App. E, p. 5, previously filed, specifically and fully incorporated. The evaluator recommended that John receive drug treatment in "a strictly enforced and structured environment," which could "reshape [his] behavior permanently." Id. at 6.

After his release from prison, John had nowhere to go and resumed using drugs and drinking. By the time of the offense, he was consuming vast quantities of alcohol. He drank approximately two cases of beer a day during the trip to Florida. When police officers stopped John and Raymond Wigley on the beach early on June 17, 1983, the bed of Wigley's truck contained eight to ten cases of beer. When John and Wigley were arrested the next day, there were five or six cases of beer in the truck.

This evidence concerning Mr. Marek's character and background never reached Mr. Marek's sentencing jury and judge. Mr. Marek's early life of abuse, neglect and rejection had a lasting impact on John. These were facts the jury should have known about John Marek. Since defense counsel failed to present this important information, Mr. Marek was sentenced to death by a judge and jury who knew virtually nothing about him save what the State told them.

Under Florida law, the background information that counsel did not pursue was admissible as evidence of mitigating circumstances. The Florida Supreme Court has recognized that the kinds of information available through investigation of Mr. Marek's background is mitigating. For example, a deprived and abusive childhood is mitigating. Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990)("Abused or deprived childhood" is valid mitigating circumstance); Holsworth v. State, 522 So. 2d 348 (Fla. 1988)("Childhood trauma has been recognized as a mitigating factor").

The background information described above was not only independently mitigating, but also would have prompted a thorough neuropsychological evaluation of Mr. Marek. Such an evaluation would have confirmed what the Texas records indicate: Mr. Marek suffers from organic brain damage and severe psychological disturbances, and has suffered from these conditions throughout his life. Such an evaluation would also have revealed that Mr. Marek's organic brain damage and psychological disturbances interacted with alcohol and drug abuse and with intoxication at the time of the offense to substantially impair Mr. Marek's judgment and ability to control his conduct.

Dr. Krieger, who evaluated Mr. Marek pre-trial for competency, testified at the previous hearing that he was not asked to evaluate for mitigation (PC-T. 282), that he was concerned about saving taxpayer money and obtaining future court appointments, and that he is not a neuropsychologist and was not qualified to perform neuropsychological testing (PC-T. 283). Had he been provided with records indicating a history of organicity, Dr. Krieger would have referred defense counsel to someone qualified to conduct such testing (PC-T. 283).

Dr. Pat Fleming has now conducted the necessary evaluation and testing. Her report demonstrates substantial mitigation that could have been provided to Mr. Marek's sentencers:

SUMMARY OF NEUROLOGICAL IMPLICATIONS

These test results indicate cerebral dysfunction with the left hemisphere affected more than the right. Given John's history of head injury, high fevers, and drug overdose it is likely that these previous injuries interacted with the considerable psychological problems to result in significant problems. John was not able to converse until nine years of age. He also had the accompanying behaviors that would indicate significant damage to the frontal and/or temporal lobe. All of these behaviors were well documented in psychological lay reports: lack of capacity for self-control (restlessness, impatience, and impulsivity), impaired social behavior (impaired judgment, social dependency), impaired ability to learn (six grade levels below age), and emotional problems (irritability, liability of mood). Language and cognitive fluency has increased through the years but the emotional components of the brain damage have remained.

* * *
DIAGNOSTIC IMPRESSIONS
John Marek's history is consistent from all sources: school and medical records, collateral information, self report, behavioral observations, prior psychiatric and psychological evaluations, and test data. His early years were traumatic psychologically; a natural father who denied his paternity and disassociated himself from his son's problems, a mother who was depressed, immature, and who relinquished her son at eight years because of his problems; an alcoholic step-father who physically and emotionally abused him; a foster father who was not emotionally available and also hit John, a foster mother who focused on his deficits, was not emotionally available, and provided inconsistent control and nurturing and who ultimately abandoned him after refusing him therapeutic help.

The brain injury added to the psychic trauma. The significantly delayed speech, encopresis, hyperactivity, and inability to follow directions only added to the psychological problems. The too infrequent therapeutic intervention was not sufficient. As recently as 1980, the examining psychiatrist recommended treatment rather than incarceration.

The significant alcohol use only added to the poor judgment stemming from brain damage and serious psychological problems. The previous history of alcohol blackouts indicate that John was consuming heavy amounts of alcohol on a continuing basis and the day of the offense he had consumed four cases of beer.

John has a history of lack of self-respect and worth. He described himself as a youngster as "a nothing" and accepted the fact of his parent's abandonment as right and just, given his inadequacy. Most children grow up with a sense of personal power, but not John. He was regarded as almost invisible during most of his childhood -- "my mother was there but she wasn't there." He finally reached adulthood with no knowledge of his value but knew that he was unable to influence the course of his life. He lacked the psychological resources to move away from people or circumstances that would cause him pain and grief. When the events were beyond his control he finally lost the ultimate control.

Rutter, Graham, & Yle, 1970, note the prevalence of emotional disturbance among non-brain-damaged, nonphysically ill, or handicapped children to be 6.6%. Brian damaged children, however, showed a rate of emotional disturbance of 34.3%, almost six times the normal occurrence rate. Filskov and Boll, 1981, state that children with brain damage are certainly at an increased risk for emotional disturbance.

John's symptomology meets the criteria of Organic Brain Syndrome as outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-III): Affective instability e.g. marked shifts from normal mood to depression, irritability, or anxiety; recurrent outbursts of aggression or rage that are grossly out of proportion to any precipitating psychological stressors; markedly impaired social judgment; marked apathy and indifference.

John was diagnosed as a child as having an underlying depression. The current evaluation supports the diagnosis of Dysthmia (Depressive Neurosis). According to the DSM-III the essential feature is a chronic disturbance of mood involving depressed mood (irritable mood in children) for at least two years. During these periods of depressed mood there are some of the following associated symptoms that John has demonstrated: poor appetite, hypersomnia, low energy or fatigue, low self-esteem, poor concentration or difficulty making decisions, and feelings of hopelessness. John's present level of depression is heightened by his present circumstances but the history indicates that the depression is long standing.

John's history clearly documents the trauma and brain damage. Unfortunately, previous examiners did not have sufficient data available to them to make diagnoses which require case history and documentation to validate. John's information is consistent and I believe the other examiners would have drawn different conclusions based on the psychological evidence and background information.

MITIGATING CIRCUMSTANCES

1. Significant physical and psychological trauma during infancy and childhood... drug overdose, head injuries, seizure activity, and recurrent high fevers.
2. Consistent diagnosis of brain dysfunction beginning at one year. Treatment plans were inconsistent and interrupted.
3. Alcohol use beginning at age eleven and increasing at age seventeen. This excessive alcohol use interacted with the existing brain dysfunction and severe psychological problems to significantly interfere with functioning and judgment.
4. Significant family pathology. Abandoned by natural mother, father, step-father and foster family. Unaccepted at home and school due to his behavior and severe language delay.
5. Consistent lack of opportunity to establish stable relationships. Frequent shifts in foster families and treatment centers, with no consistent plan. Failure to refer to in-patient treatment when the circumstances and recommendations warranted more intense treatment.

John Marek is a classic example of a child who was provided too little, too late. From the time of his birth he was a frantic child, seeking acceptance, nurturing, and attention. He was surrounded by inadequate people who did not have the capacity to understand or rear a child who had significant problems.

Compelling evidence regarding John Marek's brain damage never reached the sentencers because defense counsel failed to obtain the background records indicating that neuropsychological testing was necessary. Had he done so, as Dr. Krieger testified, the testing would have been conducted and as Dr. Fleming's report demonstrates, would have revealed Mr. Marek's organic brain damage.

As Dr. Fleming's report also demonstrates, a thorough psychological evaluation which took into account the documentation regarding Mr. Marek's background and history would also have provided substantial mitigation regarding Mr. Marek's mental and emotional disturbances, his history of alcohol and drug abuse, and his intoxication at the time of the offense. Such evidence, too, is recognized mitigation. See Castro v. State, 547 So. 2d 111, 116 (Fla. 1989)(evidence that defendant was drinking at time of offense and had "alcohol and drug addicted personality" was mitigating).