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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 QUASH AS UNCONSTITUTIONAL THE
LOUISIANA CAPITAL MURDER STATUTE

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 quash as unconstitutional the Louisiana capital murder statute. 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. 1980) (citing cases).
2. We begin with the familiar rule that there must be "specific intent to kill or inflict great bodily harm" to support a capital murder conviction under Louisiana law. State v. Bates, 495 So. 2d 1262, 1267 (La. 1986); State v. Williams, 383 So. 2d 369, 373 (La. 1980) ("an essential element of the crime, i.e. specific intent to kill or inflict great bodily harm").
3. However, what the statute provides with one hand, the Supreme Court has sought to take away with the other. The Supreme Court has held that this cannot be negated by evidence of the accused's deranged mental state, short of insanity. State v. Nelson, 459 So. 2d 510, 516 (La. 1984) ("Evidence of a mental defect which does not meet the M'Naughten definition of insanity cannot negate a specific intent to commit a crime"). Added to this is the presumption that is found in our code:
A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it pre-existed; that the defendant intended the natural and probable consequence of his act. . . .

La. Code Crim. Pro. art. 432 (emphasis supplied). These rules are clearly unconstitutional, as they deprive Mr. CLIENT of his right to put the state to its proof, without a conclusive presumption regarding specific intent--an element of the crime with which he is charged.
4. There is another very familiar rule, which is a bedrock principle of American law: "The due process clause protects a defendant against conviction except upon proof beyond a reasonable doubt of every element of the crime charged." State v. Messiah, 538 So. 2d 175, 180 (La. 1989) (citing In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)). As our own law provides:

The plea of not guilty throws upon the state the burden of proving beyond a reasonable doubt each element of the crime necessary to constitute the defendant's guilt.

La. Code Crim. Pro. art. 271.
5. From this rule derives the premise that

"The Due Process Clause of the Fourteenth Amendment 'protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the charge with which he [or she] is charged.'" This 'bedrock, "axiomatic and elementary" [constitutional] principle' prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime."

Francis v. Franklin, 471 U.S. 307, 313, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)).
4. The High Court has also held that it is impermissible to tell the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom v. Montana, 442 U.S. 510, 513-14, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). The principle of Sandstrom has since been extended to various other impermissible infractions on the reasonable doubt standard. For example, in Alexander v. Foltz, 838 F.2d 140 (6th Cir. 1988), the court condemned an instruction which told the jury that "[i]f a man kills another suddenly and without provocation, the law implies malice and the offense is murder." Id., at 144; accord Fulghum v. Ford, 850 F.2d 1529, 1534 (11th Cir. 1988) ("[m]alice shall be implied where no considerable provocation appears").4
5. In Bush v. Stephenson, 669 F. Supp. 1322 (E.D.N.C. 1986), the court considered an instruction that malice is "implied in law from . . . intentional[] killing with a deadly weapon." Id. at 1326. If a "normal" person commits an intentional killing, then legal malice would be present. In Bush, however, the evidence of the defendant's mental abnormality rendered malice "a disputed issue in the case." Id. at 1342; accord Bowen v. Kemp, 832 F.2d 546 (11th Cir. 1987) (en banc) (evidence of mental instability); cf. Thomas v. Kemp, 800 F.2d 1024 (11th Cir. 1986) (drug-altered mental state). Thus, to include as an element of the crime the notion of specific intent, and then presume that intent is developed by all people in the same manner as some kind of sober, normal "reasonable person" offends the constitution when intent may be developed differently by different people.
6. Perhaps the best example of the "unreasonable person" defense arose recently in Cheek v. United States, 498 U.S. ___, 111 S. Ct. ___, 112 L. Ed. 2d 617 (1991). Cheek, who was aptly named, defended a tax fraud case by arguing that he "honestly . . . believed that he was not required to pay income taxes. . . ." Id. at 626. The District Court instructed the jury "that only an objectively reasonable misunderstanding of the law negates the statutory reasonableness requirement." Id. at 627 (emphasis supplied). The Supreme Court reversed, holding:
Willfulness . . . requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.

Id. at 629. To hold the particular defendant to an objective standard of reasonableness would be denying that an individual can ever harbor
an irrational belief that he has no duty, and forbidding the jury to consider evidence that might negate [subjective] willfulness would raise a serious question under the Sixth Amendment's jury trial provision.

Id. at 630-31 (citing Francis v. Franklin; Sandstrom v. Montana).
7. The jury charges in Sandstrom, Franklin, and other Supreme Court decisions5 vary in their precise wording. However, in all the cases a mandatory presumption on an element of the crime fails the due process test. The Eleventh Circuit has previously considered the same type of burden-shifting scheme that we see in Louisiana:
The jury in this case was . . . instructed that "[m]alice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart."

[Petitioner] argues that the mandatory nature of this presumption unconstitutionally shifted the state's burden of proving an essential element of his murder conviction. This Circuit has previously considered the identical jury charge and held that the charge alone is unconstitutionally infirm.

Fulghum v. Ford, 850 F.2d 1529, 1534 (11th Cir. 1988)
8. In violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), the pattern instructions defining "passion" in terms of the reasonable man create an irrebuttable presumption that Mr. CLIENT behaves like a reasonable man. The typical pattern instruction reads:
Another possible verdict is manslaughter which is a homicide which would be murder if the offender had a specific intent to kill or inflict great bodily harm, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection . . . . With respect to provocation which reduces a murder to manslaughter, it must be sufficient or adequate, that is sufficient to excite an irresistible passion in a reasonable man.

Thus, a provocation that "excites irresistible passion in an unreasonable woman", for example, while negating specific intent, would not reduce murder to manslaughter in Louisiana. The fault in this instruction is that it does not give room for the unreasonable person in the development of an element of the crime--malice or premeditation. The presumption is erected that all people develop malice in the same way. It was unconstitutional to shift the burden of proving the absence of malice--reflected in the mental state of an "unreasonable persons"--to the defense.
WHEREFORE Mr. CLIENT respectfully moves that this Court hold an evidentiary hearing, and quash the Louisiana capital murder statute.
4. Other Sandstrom violations include, for example, the proscription against presuming intent to kill from the use of a deadly weapon. See Yates v. Aiken, 484 U.S. 211, 108 S. Ct. 534, 98 L. Ed. 2d 546, 551 (1988); Dickey v. Lewis, 859 F.2d 1365, 1367 (9th Cir. 1988); see also State v. Curry, 374 S.E. 2d 526 (W. Va. 1988) (intent to be a member of a conspiracy cannot be presumed from presence at the scene of the crime); Carella v. California, 491 U.S. 263, 109 S. Ct. 2419, 105 L. Ed. 2d 218, 221 (1989) (presumption that one who fails to return a rental car 20 days after demand intends to commit fraud); Flowers v. Blackburn, 779 F.2d 1115, 1119 (5th Cir. 1986) ('[a]ll persons knowing the unlawful intent of the person committing the crime who were present . . . are principals").
5. Sandstrom: "The law presumes that a person intends the ordinary consequences of his voluntary acts", id., 442 U.S. at 515; Franklin: a person "is presumed to intend the natural and probable consequences of his acts", id., 471 U.S. at 316 (emphasis in original); see also, e.g., Carella v. California, 491 U.S. 263, 109 S. Ct. 2419, 105 L. Ed. 2d 218 (1989) (presumption of embezzlement from failure to return rental car within five days of lease expiration); Yates v. Aiken, 484 U.S. 211, 212, 108 S. Ct. 534, 98 L. Ed. 2d 546 (1988) ("malice is implied or presumed from the use of a deadly weapon"); Rose v. Clark, 478 U.S. 570, 574, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986) ("[a]ll homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption"); see also Yates v. Evatt, 500 U.S. ___, 111 S. Ct. 1884, 114 L. Ed. 2d 432 (1991).
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