1precludeDA

LOUISIANA PUBLIC DEFENDER BOARD

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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 THE DISTRICT ATTORNEY'S OFFICE
FROM SEEKING THE DEATH PENALTY AGAINST MR. CLIENT

COMES NOW JOHN CLIENT, through undersigned counsel, and hereby moves this Court, pursuant to the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 13, 16, 17, 20, 22 and 24 of the Louisiana Constitution, for an order permitting JOHN CLIENT to plead guilty to First Degree Murder without capital punishment. In the alternative, defendant prays for an order prohibiting the District Attorney and his staff from seeking the death penalty against him. Further, in the alternative, defendant prays for an evidentiary hearing on this motion. In support of this motion, defendant states:
1. Mr. Client, a black man, is an indigent who has been charged with killing a white woman. The District Attorney has indicted Mr. CLIENT for first degree murder, and will seek to impose the death penalty. The District Attorney has refused to plea bargain with Mr. CLIENT, despite Mr. CLIENT's offer to plead guilty to first degree murder in exchange for a life sentence.
2. The prosecutor's refusal to plea bargain with Mr. CLIENT is an abuse of his prosecutorial discretion. As explained in greater detail in Paragraph 11, since the present district attorney took office, all __ pending death penalty cases are against black defendants. Further, undersigned counsel have conducted a study of the disposition in this parish of approximately ___ first degree murder arrests from 1975 to today. The results of this study are startling. A defendant who is arrested for a first degree murder of a white person is over three times more likely to be brought to trial on that charge than is a defendant who is arrested for a first degree murder of a black person. Put another way, only __% (__ of __) of the first degree murder arrests involved black victims. However, an extraordinary __% (__ of __) of the first degree murder trials involved white victims. Accordingly, it cannot be tenably disputed that the District Attorney's Office values white life far more highly than black life. This fact, moreover, is hardly surprising, given the parish's and the state's long history of racial discrimination. Thus, as Mr. CLIENT demonstrates herein and will further demonstrate at an evidentiary hearing, the prosecutor's refusal to plea bargain is a conscious or unconscious result of racial prejudice against Mr. CLIENT, a black man, and in favor of the white victim.
3. For over a century, the United States Supreme Court has recognized that the equal protection clause of the Fourteenth Amendment to the United States Constitution prohibits unequal application of laws by public officials who "make unjust and illegal discriminations between persons in similar circumstances." Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886); see also, Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976) (central purpose of equal protection clause to prevent discrimination on the basis of race). In particular, "[d]iscrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." Rose v. Mitchell, 443 U.S. 545, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979). Recognizing the reality that racial discrimination may infect all stages of prosecution, the Court has "engaged in `unceasing efforts' to eradicate racial prejudice from our criminal justice system." McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (quoting Batson v. Kentucky, 476 U.S. 79, 85 (1986)).
4. McCleskey v. Kemp is the seminal case with respect to equal protection and Eighth Amendment challenges to the exercise of prosecutorial discretion in capital murder cases. In McCleskey, defendant sought to challenge his death sentence almost completely on the basis of a study by Professor David C. Baldus showing that in the State of Georgia in the 1970s "prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims, 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims, and 19% of the cases involving white defendants and black victims." 107 S. Ct. at 1764.
5. In McCleskey, the Court began by delineating the differing legal standards governing equal protection claims and Eighth Amendment claims. The Court stated that in order for a defendant to challenge a prosecutor's actions in seeking the death penalty on equal protection grounds the defendant must show that the prosecutor in his case has acted with "purposeful discrimination [which] `had a discriminatory effect' on him." McCleskey, 481 U.S. at 292 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)). Challenges against individual assistant district attorneys are virtually impossible because the elements are virtually never admitted and frequently racism is not even recognized by the owner of the trait. Racism can be refuted, but is almost impossible to demonstrate absent an explicit admission.
6. The standard is less stringent with respect to Eight Amendment challenges. Under the Eighth Amendment "`respect for humanity ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.'" McCleskey, 481 U.S. at 303 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)). Therefore, the issue is whether there is a constitutionally unacceptable risk that race has infected the capital sentencing proceeding. 107 S. Ct. at 1775, (citing Turner v. Murray, 476 U.S. 28, 36 (1986)). See also Dobbs v. Zant, 720 F. Supp. 1566, (N.D. Ga. 1989).
7. In McCleskey, the Court rejected the particular challenge before it as factually insufficient because defendant relied "solely on the Baldus study," which was a state-wide study that was in no way specific to the District Attorney's Office that prosecuted McCleskey's case. McCleskey, stated the Court, "offer[ed] no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence." Id. at 1766-7. In short, the Court held that state-wide statistics, while relevant as circumstantial evidence, do not alone prove discriminatory intent of a particular District Attorney's office. Id. at 297.
8. In McCleskey, the defendant also sought to support his claims through citation to historical evidence. The Court acknowledged that "the `historical background of the decision is one evidentiary source' for proof of discrimination. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 267 (1977)." Id.
9. In rejecting McCleskey's claims, the Court merely rejected sole reliance on a study that analyzes the past conduct of "scores of prosecutors ..." 107 S.Ct 1756, 1768-69 (emphasis added) (citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986)). The Court reaffirmed precedent holding squarely that "prosecutorial discretion cannot be exercised on the basis of race." Id. 107 S. Ct. at 1775 n. 30 (emphasis added) (citing Wayne v. United States, 470 U,.S. 598, 608 (1985); United States v. Batchelder, 442 U.S. 114 (1979); Oyler v. Boles, 368 U.S. 448, 456 (1962)). As the Court stated in yet another case, the law of the land remains that prosecutorial decisions may not, as here, be "`deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'" Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)).
10. It is well-settled that such a prima facie case can be established "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson v. Kentucky, 476 U.S., at 93-4, 106 S. Ct. at 1721. Further, "[i]t is not necessary to demonstrate that the challenged action was taken solely for discriminatory purposes; it is necessary only to prove that a discriminatory purpose was a motivating factor." Watson v. City of Kansas City, Kansas, 857 F.2d 690, 694 (10th Cir. 1988).
11. Any relevant fact must be considered in determining whether an inference of discriminatory purpose has been raised, including:
A. Prosecutorial actions and background. To successfully challenge a D.A. office's exercise of discretion, a defendant must "offer . . . evidence specific to his own case that would support an inference that racial considerations played a part in his sentence." McCleskey, 107 S. Ct. at 1766-7. Evidence pertaining to discriminatory conduct by the District Attorney's Office and its immediate predecessors, including use of peremptory challenges to exclude blacks, membership in all-white clubs and other manifestations of racism, are "strong circumstantial evidence of discriminatory intent." Blair v. Armontrout, 916 F.2d 1310, 1351 (8th Cir. 1990) (Heaney, C.J., dissenting). Mr. CLIENT can demonstrate discriminatory conduct by the District Attorney's Office and its predecessors at an evidentiary hearing. In any event, the following facts can be asserted herein: the District Attorney's Office, with more than __ lawyers, has only __ black lawyers. With a total staff exceeding ___, only __ blacks are employed. __ percent of the newly hired attorneys are white. ___ percent of pending capital murder cases in the parish are against black defendants.
B. Nationwide and statewide statistical evidence. As the Court in McCleskey made abundantly clear, nationwide and statewide statistical evidence, although not dispositive standing alone, remains highly relevant. See also Watson v. City of Kansas City, Kansas, 857 F.2d 690, 696 (10th Cir. 1988) (statistical evidence relevant). By now, it is beyond question that those who are accused of murdering a white person are more likely to receive the death penalty than those who are accused of murdering a black person. In 1990, after reviewing all available studies conducted in the area of disparities in capital sentencing based on the race of the victim, the United States General Accounting Office concluded:

Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision.

In 82 percent of the studies, race of the victim was found to influence the likelihood of being charged with a capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytical techniques.

Report to Sentence and House Committees on the Judiciary (Feb. 1990); see also, Aguire & Baker, Empirical Research on Racial Discrimination in the Imposition of the Death Penalty, Crim. Just. Abst. 135, 142 (March 1990) (empirical analyses show racial disparities post-Gregg).
This discriminatory pattern holds true for the State of Louisiana. Analysis of all homicide cases reported to the Federal Bureau of Investigation from October, 1976 through December, 1982, and chargeable as first degree murder under La. R.S. 14:30, revealed that "those charged with murdering whites were twice as likely to receive a death sentence as were those who killed blacks, even when a number of mitigating circumstances were controlled." Smith, Patterns of Discrimination in Assessments of the Death Penalty: The Case of Louisiana, 15 J. Crim. Just. 279, 283 (1987). Of the 53 cases in which the defendant received a sentence of death, not one involved a black victim and a white defendant. Id. at 282. See also id. at 281 ("while whites constituted 61.5 percent of victims, 84.9 percent of death sentences were assessed for cases involving white victims. In contrast, 38.5 percent of the cases involved black victims, but only 15.1 percent of death sentences involved black-victim cases").
C. Parish statistical evidence. Finally, this discriminatory pattern holds true for this parish. First of all, since the present district attorney took office, __ percent of the pending death penalty cases are against blacks. Further, undersigned counsel have conducted a study of the disposition of approximately ___ first degree murder arrests from __ to ___. Of these ___ cases, __ (or __%) involved black defendants and black victims; __ (__%) involved black defendants and white victims; __ (__%) involved white defendants and white victims; and _ (_%) involved white defendants and black victims. When black victims were involved, the District Attorney took only __ percent of the black defendants to trial for first degree murder and only __ percent of the white defendants to trial for first degree murder. When the victims were white, the District Attorney took __% of the black defendants to trial for first degree murder and __% of the white defendants to trial for first degree murder. Putting aside the race of the defendant, in this parish, a defendant who is arrested for first degree murder for killing a black person has a __% chance of going to trial for first degree murder. In sharp contrast, a defendant who is arrested for first degree murder for killing a white person has a __% chance of going to trial for first degree murder. Thus, in this parish a defendant who is arrested for first degree murder for killing a white person is ____ times more likely to be brought to trial for first degree murder than is a defendant who is arrested for first degree murder for killing a black person. It cannot be tenably disputed, therefore, that the District Attorney's Office values white life far more highly than black life.
D. Historical background. In addition, the historical background of state action, particularly reasonably contemporaneous state action, is an important evidentiary source in equal protection and Eighth Amendment claims. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267 (1977). This parish has a long history of racism -- a history that the parish has woefully -- and indisputably -- failed to overcome to this very day.
Further, Census data confirms that the history of race discrimination in this parish (including unequal access to quality education and to the political process, the cornerstone of democracy) continues to affect its black population in the areas of employment and income distribution.
Louisiana's history of racial discrimination, particularly in the area of black suffrage, provides further proof that the prosecutor's decision to seek death in Mr. CLIENT's case is discriminatory. United States v. Louisiana, 225 F. Supp. 353 (E.D.La. 1963) aff'd, 380 U.S. 145 (1963), describes that history in horrifying detail.
As has been demonstrated and will be demonstrated in more detail at the evidentiary hearing on this motion, the discrimination that caused so many in Louisiana to fear the power of the black vote, and to refuse to allow the blacks to voice their opinions in the political process, also motivated the District Attorney to seek the death penalty against defendants, particularly black defendants, who are accused of killing white persons, and in particular in Mr. CLIENT's case.
WHEREFORE, the defendant prays that this Court permit JOHN CLIENT to plead guilty to First Degree Murder without capital punishment.
IN THE ALTERNATIVE, defendant prays for an order prohibiting the District Attorney and his staff from seeking the death penalty against him.
IN THE ALTERNATIVE, defendant prays for an evidentiary hearing and then an order prohibiting the District Attorney and his staff from seeking the death penalty against him.
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