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 FOR BAIL AND/OR A PRELIMINARY HEARING

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, 19, 20, 22, and 24 of the Louisiana Constitution to order a preliminary hearing in this case, both because a preliminary hearing cannot be denied merely by operation of the indictment, and because Mr. CLIENT seeks release on bail. In support of his motion, Mr. CLIENT states as follows:
1. This is a capital case. Mr. CLIENT, an indigent, faces the death penalty.
2. Prior to an indictment, the Court would have had no option but to order a preliminary hearing:
The court, on request of the state or the defendant, shall immediately order a preliminary examination in felony cases unless the defendant has been indicted by a grand jury.

La. Code Crim. Pro. art. 292. In this case, the prosecution went to the grand jury in secrecy to secure an indictment before the Court could hold a preliminary hearing. The prosecution cannot be allowed to manipulate the legal system to achieve its own ends. When the rights of the accused are at stake, it is not enough for the state to say that "the District Attorney was rather busy and we never did get into a preliminary hearing before the indictment."
3. Even after the indictment, the trial court has the authority to order a preliminary hearing:
An order for a preliminary examination in felony cases may be granted by the court at any time, either on its own motion or on request of the state or of the defendant before or after the defendant has been indicted by a grand jury.

La. Code Crim. Pro. art. 292. As the Code provides, this preliminary hearing should focus on the availability of bail--taking into account considerations that basically parallel the decision the Court would have to make at a pre-indictment preliminary hearing:

After an indictment has been found by a grand jury, the preliminary examination shall be limited to the perpetuation of testimony and the fixing of bail.

La. Code Cr. Pro. Art. 296. Therefore, the law allows a preliminary hearing. In this case, Mr. CLIENT has been denied such a hearing.
4. Some capital defendants receive preliminary hearings in this State. In State v. Myles, 389 So. 2d 12 (La. 197980), the Court noted that while a preliminary hearing had not been explicitly countenanced by the statute, it had been held "more than two months after the defendant was indicted." Id. at 19. As with Myles, Mr. CLIENT's case apparently is to be a capital case. He should be allowed the same rights. Cf. State v. Washington, 363 So. 2d 509, 510 (La. 1978) (error, in this case harmless, to deny preliminary hearing) (citing State v. Redfud, 325 So. 2d 595 (La. 1976)); Willie v. State 585 So. 2d 660, 670 (Miss. 1991). One person accused of a capital crime cannot be denied a preliminary hearing where another is allowed one. The Equal Protection Clause guarantees to every criminal defendant the right to equal justice. Indeed, the United States Supreme Court has long since recognized that "all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court.'" Griffin v. Illinois, 351 U.S. 12, 17 (1956); see also Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Roberts v. Lavallee, 389 U.S. 40 (1967); Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 520 (1972).
5. Even were Mr. CLIENT not permitted a preliminary hearing on independent equal protection grounds, he must be allowed one on his application for bail. The case against Mr. CLIENT is apparently a weak one, and the presumption of his guilt is not great.
WHEREFORE, Mr. CLIENT moves that his motion be granted, and a preliminary hearing be scheduled forthwith, with bail granted if release is not ordered as a result of the hearing.
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