IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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DEMAND FOR BERNARD NOTICE & MOTION FOR DISCOVERY OF INFORMATION RELATING
TO THE LESS AUSPICIOUS ASPECTS OF THE REPUTATION OF THE DECEASED IN THIS CASE

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution to provide notice of the nature and extent of the evidence the state contemplates utilizing at any penalty phase of this case, and to provide discovery of the less auspicious and commendable aspects of the victim's character in this case. In support of his motion, Mr. CLIENT states as follows:

1. Since this is to be a capital prosecution, exacting standards must be met to assure that it is fair. As the Louisiana Supreme Court has held, "[d]eath, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the jury's determination that death is the appropriate punishment in a specific case." State v. Myles, 389 So. 2d 12, 30 (La. 1979) (citing cases).
2. One hopes and fully expects that the prosecution would not be crass enough to seek to prove that the life of one victim is somehow "worth" more than the life of another. Is a black life worth less than a white life? The very notion of placing a particular value on a particular human life, and of denigrating some in favor of others, is inherently offensive.1
3. First, the defense demands full notice of whatever victim impact evidence the State may contemplate using, including the specific nature of the evidence. As the Supreme Court of Louisiana recently held, "we reiterate that the use of victim impact evidence requires pretrial notice to the defense. * * * As in the use of other crimes evidence, the defense, upon request, is entitled to notice of the particular victim impact evidence sought to be introduced by the prosecutor. . . ." State v. Bernard, 608 So. 2d 966, 972-73 (La. 1992).
4. Second, as discussed in a subsequent motion, the defense demands an evidentiary hearing on the matter at the earliest possible moment: "As in the use of other crimes evidence, the defense, upon request, is entitled to . . . a pretrial determination of the admissibility of the particular evidence." State v. Bernard, 608 So. 2d 966, 973 (La. 1992); accord Buschauer v. State, 106 Nev. 890, 804 P.2d 1046 (Nev. 1990) (due process violation where notice not given as to victim impact statement); State v. Midyette, 87 N.C. App. 199, 360 S.E.2d 507 (N.C. App. 1987).
5. Third, if the prosecution does stoop to the use of victim impact evidence, what is sauce for the goose must also be sauce for the gander. "Victim worth evidence, being a two-edged sword, is particularly dangerous. If the prosecutor can introduce evidence of the degree of the victim's social status or business or professional success, the defense arguably will be obliged to present degrading evidence about the murder victim in the appropriate case in order to show lack of victim worth." State v. Bernard, 608 So. 2d 966, 971 n.7 (La. 1992); accord State v. Asbury, 145 Ariz. 381, 701 P.2d 1189 (Ariz. App. 1984) (due process requires right to rebut victim impact evidence); Buschauer v. State, 106 Nev. 890, 804 P.2d 1046 (Nev. 1990) (due process violation where defendant not able effectively to cross-examine victim impact evidence); State v. Moore, 179 W. Va. 288, 367 S.E.2d 757 (W. Va. 1988); State v. Midyette, 87 N.C. App. 199, 360 S.E.2d 507 (N.C. App. 1987).
6. This principle is nothing new. For many years, even in non-capital cases, the courts have recognized that some form of effective confrontation must be allowed to ensure that no sentence may be predicated on false evidence. "As Louisiana jurisprudence makes clear, [non-capital] sentencing procedures must meet due process requirements. These requirements are met [in non-capital cases] by permitting a defendant an opportunity to rebut or explain prejudicial or erroneous information included in a pre-sentence report." State v. Waller, 519 So. 2d 301, 302 (La. App. 2d Cir. 1988). As long ago as 1979, in State v. Bailey, 367 So. 2d 368 (La. 1979), the Court held that discovery should be allowed under certain circumstances of "[a]ny evidence favorable to the accused, including but not limited to, . . . evidence of hostile demonstration or overt act on part of the crime toward the accused; evidence of dangerous character or threats of [the] victim. . . ." Id. at 370; see also State v. Taylor, 514 So. 2d 755, 757 (La. App. 2d Cir. 1987) ("[m]inimal due process requires the defendant be afforded the opportunity to explain the incident and counter the prejudicial impact of the prosecutor's remarks"); State v. Johnson, 602 So. 2d 310, 313 (La. App. 1st Cir. 1992); United States v. Curran, 926 F.2d 59 (1st Cir. 1991) (error not to disclose letters from the victim that contradicted statements in the victim impact report); United States v. Mueller, 902 F.2d 336 (5th Cir. 1990); United States v. Johnson, 823 F.2d 840 (5th Cir. 1987).
7. Therefore, if the State is planning to present evidence in "aggravation" of Mr. CLIENT's sentence as to the nature of the victim's character, or the impact of the crime on the victim's family, then discovery must be permitted as to such evidence as will prove helpful, or exculpatory, to the defendant. In reality, this is not such a novel concept. See, e.g., State v. Moore, 414 So. 2d 340, 346 (La. 1982) (with respect to discovery of the victim's character, "[t]he State did not have a 'rap sheet' on Jo Ann Wilson. The indication is that one did not exist").
8. Since it is discoverable, Mr. CLIENT hereby demands production of the following information concerning the so-called "lack" of worth of the victim (Mr. CLIENT reiterates that it was not his idea to ratify the use of victim impact evidence, and to him the entire procedure in a capital sentencing trial seems offensive in every case):
> Any evidence concerning the victim apparently extensive drug dealings.

> Any evidence concerning the fact that the victim apparently involved his girlfriend in these drug dealings.

> Any evidence concerning the impact that this had on her.

> Any evidence that he failed to support his children, or failed to be a good father to them.

> Any evidence, in addition to the affair that apparently came in the course of a marriage, that he was less than a perfect husband.

> Any evidence that he was violent, or violated the law in any way.

> Any other evidence that might suggest that his character was in any manner flawed, or that his death was not quite the loss to his family as the prosecution might make out.

9. This evidence must be produced even if the prosecution states a preference not to introduce victim-impact evidence at trial, since "[e]xculpatory evidence shall be produced . . . even though it is not intended for use at trial." La. Code Crim. Pro. art. 722. The failure to provide this evidence will result in reversal of this case. See Jones v. State, 850 S.W.2d 223, 1993 WL 30718 *4 (Tex. Crim. App. 1993).
WHEREFORE, Mr. CLIENT respectfully requests that this Court order the state to provide notice of the nature and extent of the evidence the state contemplates utilizing at any penalty phase of this case, and provide the discovery discussed above.
1. Of course, this does not mean that some facets of the individuals involved in the incident will not be relevant. Just as the prosecution may seek to make Mr. CLIENT out to be a drug dealer, so it might be relevant that the victim was a drug dealer himself. Indeed, long before victim impact statements came into vogue, considerable case law developed on the defense's right to prove relevant characteristics of the victim's character. See, e.g., State v. Anderson, 550 So. 2d 797 (La. App. 2d Cir. 1989) (error to exclude evidence of victim's hostility).
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