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 BAR INTRODUCTION OF ANY EVIDENCE
RELATING TO UNCONSTITUTIONAL PRIOR CONVICTION

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 exclude his prior conviction from the State of Mississippi for possession of forged instruments as unconstitutional and inadmissible for any purpose. 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. "The fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special '"need for reliability in the determination that death is the appropriate punishment"' in any capital case." Johnson v. Mississippi, 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988) (quoting, Gardner v. Florida, 430 U.S. 349, 363-64, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (quoting, Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (White, J., concurring))).
2. Obviously, an unconstitutional conviction cannot be used in a capital trial. See, e.g., Johnson v. Mississippi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988) (reversal of 20 year old New York conviction used at penalty phase requires vacation of death sentence); accord Zant v. Cook, 259 Ga. 299, 379 S.E.2d 780 (1989) (vacatur of prior murder conviction used in aggravation of sentence on multiple grounds); Duest v. Singletary, 967 F.2d 472 (11th Cir. 1992), adhered to on remand, 997 F.2d 1336 (11th Cir. 1993) cert. denied, 114 S. Ct. 1107 (1994) (reversal of Maryland 1971 assault with intent to murder conviction used in 1982 capital trial); Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (Ark. 1992) (prior murder conviction reversal); Oats v. State, 446 So. 2d 90 (Fla. 1984).
3. Prior to discussing their application to this case, Mr. CLIENT identifies the legal parameters by which this Court must judge the admissibility of prior convictions and prior bad acts in this capital prosecution.
A. The Prosecution always bears the burden of proving the validity of any conviction which it seeks to use against the accused.

4. The Supreme Court long since placed the burden of proving the waiver of constitutional rights on the State. For example, when the accused claimed that he was denied counsel at his trial, the Court held that "[t]o cast . . . a burden on the accused is wholly at war with the standard of proof of waiver . . . ." Carnley v. Cochran, 369 U.S. 506, 514, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962) (citing Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)).
5. The Supreme Court has noted the federally-sanctioned rule that, once the state has shown a conviction and "that defendant was represented by counsel," the defendant then can be given a "burden of 'production' [to challenge a conviction, but] the burden of persuasion then shift[s] to the State to show the conviction was entered in a manner that did in fact protect the defendant's rights." State v. Shelton, 621 So. 2d 769, 778 (La. 1993). This is the rule in Louisiana. Id. at 779.
6. Indeed, it is an equitable rule which places the burden of proof upon the State to prove that a prior conviction is valid. As the Court held in United States ex rel. Savini v. Jackson, 250 F.2d 349 (2d Cir. 1957):
To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions . . . necessarily it must assume the burden of [demonstrating] . . . the constitutionality of such prior convictions.

Id. at 355; accord Pope v. State, 256 Ga. 195, 345 S.E.2d 831, 844 (Ga. 1986) (citing Marshall v. Lonberger, 459 U.S. 422, 435, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983)); Wilson v. State, 395 So. 2d 957, 960 (Miss. 1981) (burden on the prosecution to "prove the [validity] of the previous convictions and prove them beyond a reasonable doubt"). Thus the State bears the burden of proving the contrary of each and every allegation set forth below.
B. The law compels the exclusion of unconstitutional prior convictions on many grounds
7. There are many ways in which a prior conviction may be invalid. For example, in Zant v. Cook, 259 Ga. 299, 379 S.E.2d 780 (Ga. 1989), the Georgia Supreme Court relied on several different grounds in invalidating a prior 1950 murder conviction which had been used in the penalty phase of Cook's trial.
8. Certainly, at a most basic level, the denial of right to counsel makes a prior conviction inadmissible. See, e.g., Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972); Turner v. Hopper, 231 Ga. 672, 203 S.E.2d 481 (Ga. 1974); Hopper v. Thompson, 232 Ga. 417, 207 S.E.2d 57 (Ga. 1974); Houser v. State, 234 Ga. 209, 214 S.E.2d 893 (Ga. 1975); Clenney v. State, 229 Ga. 561, 192 S.E.2d 907 (Ga. 1972). Even a misdemeanor conviction stemming from a trial where the accused did not have the right to counsel cannot be used to enhance sentence. Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980) (while no right to counsel where incarceration not possible on misdemeanor charge, such conviction cannot be used later to enhance a prison sentence).
9. If the accused has the right to counsel for a prior conviction, it naturally follows that he or she has the right to the effective assistance of counsel. For example, in Zant v. Cook, the Court held that Cook's 1950 "trial attorneys 'fell well below the standard of reasonably effective assistance. . . .'" Id., 379 S.E.2d at 781; see also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
10. The accused also has the right to an appeal which must, in turn, be effectively litigated. In Zant v. Cook, the Court held that "Cook was denied his right to appeal his 1950 conviction by the state's failure to preserve the transcript of his trial and by the failure of his attorneys to advise him of his right to an appeal." Id., 379 S.E.2d at 781 (emphasis supplied); see also Johnson v. Mississippi (accused not told of right to appeal). The same analysis would hold if the accused were denied counsel, or effective counsel, on appeal. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985).
11. Another common basis for the invalidation of a prior conviction is the involuntariness of a guilty plea. For example, in Pope v. State, 256 Ga. 196, 345 S.E.2d 831, 844 (Ga. 1986), the Georgia Supreme Court held that, once the accused objects to the introduction of prior convictions on the ground that a guilty plea was involuntary, the prosecution bears the burden of proving the plea voluntary.
12. In special cases, the trial court may be obligated to advise the accused of other facts. See, e.g., United States v. Myers, 451 F.2d 402 (9th Cir. 1972) (accused must be told the maximum sentence which could be imposed); Durant v. United States, 410 F.2d 689 (1st Cir. 1969) (accused must be told when he will not be eligible for parole for a certain time). For example, a plea may be invalid if it is taken while the capital case is pending, and the accused is not informed that the conviction may be used against him at the penalty phase of the capital trial. McNary v. State, 493 N.E.2d 824 (Ind. App. 1986); State v. Hayes, 423 So. 2d 1111 (La. 1982). Furthermore, a plea may be invalid because the accused was misadvised by the court or by counsel. For example, the defendant in Pope had entered a plea of guilty to armed robbery in 1975, because he incorrectly was advised that he might receive the death penalty if he went to trial.
13. A prior conviction may also be invalid if it was predicated on an involuntary confession. It may be, for example, that the prosecution is unable to affirmatively show that a confession used to secure the conviction was voluntary, Martinez v. Estelle, 612 F.2d 173, 175 (5th Cir. 1980), or that the accused was allowed his right to a Jackson-Denno hearing outside the presence of the jury. Johnson v. Mississippi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988). The courts have condemned the use of a conviction by a non-unanimous 6-person jury, Bourgeois v. Whitley, 784 F.2d 718, 721 (5th Cir. 1986); a conviction where a Grand Juror was seated on the Petit Jury trying the case, Zant v. Cook, 379 S.E.2d at 781; a conviction predicated on a statement taken in violation of Fifth Amendment, United States v. Burt, 802 F.2d 330 (9th Cir. 1986); a conviction predicated on a violation of the Fourth Amendment, Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969); and, a violation of the defendant's right to be competent when tried. Weaver v. McKaskle, 733 F.2d 1103 (5th Cir. 1984).
C. The prior conviction for Possession of Forged Instruments was unconstitutionally obtained and cannot be used for any purpose in this trial.
14. The conviction for possession of a forged instrument entered against Mr. CLIENT in the State of Mississippi is invalid for a multitude of reasons.
(i) Denial of Complete Record.
15. First, there is no complete record available of the case against him. Orders appointing counsel and relieving counsel are either missing or non-existent. There is no transcript of a pretrial hearing and despite Mr. CLIENT's pretrial motion to have them recorded, no transcript of voir dire, bench conferences, and closing arguments of counsel.
16. The State bears the burden of establishing a clear and complete record of criminal proceedings. Wright v. Lacy, 664 F. Supp. 1270, 1275 (D. Minn. 1987) (citing Golden v. Newsome, 755 F.2d 1478, 1479 (11th Cir. 1985)). Ultimately, the State has the "duty . . . to have the trial testimony entered in the records of the court and to file a transcript following a guilty verdict." Zant v. Cook, 259 Ga. 299, 379 S.E.2d 780, 781 (1989) (citing Montgomery v. Tremblay, 249 Ga. 483, 292 S.E.2d 64 (1982)); Wade v. State, 231 Ga. 131, 200 S.E.2d 271 (1973)); see also Parrot v. State, 214 S.E.2d 3 (Ga. 1975); Graham v. State, 296 Ark. 400, 757 S.W.2d 538, 541 (Ark. 1988); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518, 524 (Ark. 1988).
(ii) Illegal Arrest & Search.
17. Even on the woefully inadequate record available in this case, numerous errors are apparent. First, the primary evidence in this case, the forged checks, were seized pursuant to an invalid search warrant and should therefore have been suppressed. The warrant was invalid because Mr. V.O. Smith who issued the warrant, in addition to acting as Municipal Judge, was also the Mayor of Collins, Mississippi.
18. The Fourth Amendment provides a suspect with the right to a "neutral and detached" magistrate who is interposed between the suspect and the police prior to the issuance of any warrant. See, e.g., Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436 (1948); Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Connally v. Georgia, 429 U.S. 245, 97 S. Ct. 546, 50 L. Ed. 2d 444 (1977); Lo-Ji Sales Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979). 19. A magistrate is a member of the judicial branch. He or she cannot be a member of the executive at the same time. See, e.g., Lockett v. State, 459 So. 2d 246 (Miss. 1984) (magistrate engaged in law enforcement); In re Anderson, 447 So. 2d 1275 (Miss. 1984) (same); People v. Payne, 424 Mich. 475, 381 N.W.2d 391 (1985), cert. denied, 106 S. Ct. 3298 (1986) (magistrate also deputy sheriff); Vaughn v. State, 160 Ga.App. 283, 284, 287 S.E.2d 277, 278 (1981) (same).
(iii) Denial of Speedy Trial.
20. Mr. CLIENT was arrested on December 31, 1981. On August 6, 1982, the State moved for a continuance. On July 20, 1983, Mr. CLIENT's Motion for a Speedy Trial was denied. Finally, he was tried on July 27, 1983. This was more than eighteen months -- more than 550 days -- after he had been arrested.
21. The delay violated the Sixth Amendment right to a Speedy Trial. See Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The 550 day delay in this case is presumptively prejudicial. See Smith v. State, 550 So. 2d 406, 408 (Miss. 1989) (370 day delay); Bailey v. State, 463 So. 2d 1059, 1062 (Miss. 1985) (298 days).
(iv) Discrimination in Jury Selection
22. The prosecutor's discriminatory abuse of his peremptory challenges denied Mr. CLIENT his rights secured by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Prior to trial, the defense moved to preclude the prosecution from using peremptory challenges to exclude black persons from the venire. Nevertheless, on information and belief, Mr. CLIENT's jury was purged of black persons by the prosecution.
23. The decision of the Mississippi Supreme Court on direct appeal in this case came immediately prior to the United States Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). However, Batson was decided on April 30, 1986, and Mr. CLIENT's direct appeal did not become final until later. Therefore the rule of Batson is to be applied to this case. Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

WHEREFORE, this Court should hold an evidentiary hearing on this matter, and enter an order in limine granting the relief requested.
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