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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MOTION TO PRECLUDE MR. CLIENT'S EXECUTION
ON THE BASIS OF INACCURATE SPECULATION CONCERNING PAROLE

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, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, and other law set out below, to preclude his execution on the basis of inaccurate and arbitrary speculation concerning parole. 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. There is a strong policy in this state against jurors speculating about the possible future actions of the parole board. To hold that a person on death row may validly be executed although most jurors think that he should be serving life is unconscionable, as the Supreme Court of New Jersey held thirty years ago:
That death should be inflicted where a life sentence is appropriate is an abhorrent thought. * * * [J]uries shall [not] weigh the death penalty against something less than a life sentence and by that process arrive at a punishment which does not fit the facts.

State v. White, 27 N.J. 158, 178, 142 A.2d 65, 76-77 (1958).
3. In State v. Copeland, 530 So. 2d 526 (La. 1988), the Court held that a "discussion of future remedial measures increases the potential for arbitrary decision making by the jury and is irrelevant to the jury's duty. Thus, there is almost a blanket prohibition of these matters." Id. at 538; see also State v. Felde, 422 So. 2d 370, 389 (La. 1982) ("'predictions of the consequences of the jury's verdict' are improper"); State v. Moore, 432 So. 2d 209, 222 (La. 1983) (prosecutors should avoid "mention of the defendant's potential for future release should he be given life imprisonment, . . . [or] any references . . . as to appellate review of sentences").
4. In Williams v. State, 445 So. 2d 798 (Miss. 1984), the Mississippi Supreme Court explained this rule:
A jury should have no concern with the quantum of punishment because it subverts a proper determination of the sentencing issue.

Reference to the possibility of parole should the defendant not be sentenced to die [is] wholly out of place at the sentencing phase of a capital murder trial for two additional reasons.

First, such references inevitably have the effect of inviting the jury to second guess the Legislature. The Legislature has declared that persons sentenced to life imprisonment may under certain circumstances become eligible for parole. Mississippi Code Annotated section 47-7-3(1) (Supp. 1982). It is not more proper for the jury to concern itself with the wisdom of that legislative determination than it is for the jury to consider the Legislature's judgment that death in the gas chamber be an authorized punishment for capital murder. Johnson v. State, 416 So. 2d 383, 392 (Miss. 1982).

Second, parole is not automatic. No person sentenced to life imprisonment has any 'right' to parole. Allowing argument or testimony regarding the possibility of the defendant some day being paroled is in effect inviting the jury to speculate how ten years in the future the parole board may exercise its legislatively granted discretionary authority. This would introduce into the sentencing proceedings an 'arbitrary factor' proscribed by section 99-19-105(3)(a).

Id. at 810-12 (emphasis in original; citations omitted). Indeed, in this state not only is parole not "automatic," it is automatically denied.
5. On one level, it is a violation of the separation of powers for the jury to speculate what the executive branch may elect to do in years to come. On another level, the jury has no business speculating about parole. If the Parole Board is going to let the defendant out, it is hardly his fault -- and the determination by the Parole Board that he has sufficient redeeming virtues to merit parole is hardly a reason for him to be executed. See Zant v. Stephens, 462 U.S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) (unconstitutional to predicate a sentence of death on matters which should rather be considered mitigating).
6. Strong measures must therefore be taken to avoid this kind of speculation. This must include rigorous voir dire to eliminate those who cannot follow this Court's thorough instructions on the fact that life without parole means just that--life without parole.
WHEREFORE Mr. CLIENT moves that this Court take steps to preclude his execution on the basis of inaccurate and arbitrary speculation concerning parole.
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