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 DEATH PENALTY ON THE
GROUNDS OF RACIAL DISCRIMINATION

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, and other law set out below, to bar the death penalty on the grounds of racial discrimination in this case. 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. This State and nation have undergone a sorry history of race discrimination. As recently as last century, white persons openly expressed the belief that black citizens "had no rights which the white man was bound to accept," a belief that was "universal . . . and men in every grade and position in society daily acted upon it in their private pursuits, as well as in matters of public concern." Scott v. Sanford, 60 U.S. (19 How.) 393, 407 (1857) (The Dred Scott Case). Tragically, much of the same discrimination finds its way into cases where poor white persons are involved, especially where the victim is also white.
3. On information and belief, in this district that has a large number of African American citizens, the Office of District Judge is now held only by white males, and always has been. The Office of the District Attorney is now held by a white male, and always has been. The Office of the Circuit Clerk is now held by a white person, and always has been. As Mr. CLIENT will prove at an evidentiary hearing on this motion, these individuals are variously members of all-white clubs, and have a history of intolerance towards the rights of black citizens. The District Attorney has historically indicated his racial discrimination by the elevation of the value of white life of black life. The decision to seek the death penalty in this case was previously, and will be again, based on prejudice, in that Mr. CLIENT is black and poor, and accused of killing a white person. Since the parish is segregated and sadly still tainted by racial discrimination, and the prosecution has a habit of trying to purge the jury of black citizens, the decision to impose the death penalty will also be unconstitutionally tainted by racial considerations.
4. The analysis of the prejudice and arbitrariness issue is shaped in large part by the recent Supreme Court opinion in McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). McCleskey, a black man, was sentenced to death. Proceeding under the Equal Protection Clause as well as the Eighth Amendment, McCleskey argued that the Georgia capital sentencing process was being administered in a racially discriminatory manner. As proof, he presented a statistical study showing, inter alia, that in Georgia white murderers of blacks almost never receive the death penalty for their crimes. However, the most significant difference came in terms not of the race of the accused, but of the victim--if the victim was white, the defendant (whether black or white) was significantly more likely to be the victim of execution. 5. Mr. CLIENT's claims differ from McCleskey's in that Mr. CLIENT is challenging the constitutionality of his intended death sentences in terms of the individual decision-makers as well as the overall showing of discrimination. Nevertheless, McCleskey discloses two standards for the instant case. First, under the Equal Protection Clause, Mr. CLIENT would have to show:
"the existence of purposeful discrimination." Whitus v. Georgia, 385 U.S. 545, 550 (1967). A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination "had a discriminatory effect on him [or her]." Wayte v. United States, 470 U.S. 598, 608 (1985). Thus, to prevail under the Equal Protection Clause, [the defendant] must prove that the decision makers in his [or her] case acted with discriminatory purpose.

McCleskey, 481 U.S. at 292 (emphasis in original).
6. Alternatively, 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.'" Id. at 303 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)). In evaluating the risk that racism taints this process, the Supreme Court stated that the "question 'is at what point that risk becomes constitutionally unacceptable.'" Id. at 308-09 (quoting Turner v. Murray, 476 U.S. 28, 36 n.8, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986)).
7. The State Constitution also mandates humane treatment. La. R. S. Const. Art. 1, Section 20. This forbids the government from arbitrary action, or abusing office by acting in other improper ways. State v. Jones, 639 So. 2d 1144, (La. 1994). The Supreme Court has also identified the "overpowering need for reliability in the determination of a death sentence, a punishment unique in its severity and irrevocability. . . ." State v. Jones, 639 So. 2d at 1155.
8. Under the Equal Protection Clause Mr. CLIENT will show that the decision makers acted with discriminatory purpose when they decided to impose the death penalty. See McCleskey, 481 U.S. at 292 (citing Wayte, 470 U.S. at 608); Bundy v. Dugger, 850 F.2d 1402, 1414 (11th Cir. 1988), cert. denied, 109 S. Ct. 849 (1989). This is apparent from the history of actions taken by the decision makers in this parish. Under the Eighth Amendment, however, the standard is less stringent: Mr. CLIENT must show that the decision makers possess racial biases that created an "unacceptable risk" that race (or some other illegitimate factor) affects the sentencing decision. The "unacceptable risk" standard applies to capital cases only. See Turner v. Murray, 476 U.S. 28, 33, 35 n.7, 36 n.8 (distinguishing Ristiano v. Ross, 424 U.S. 589 (1976), as a noncapital case).
9. The case law makes clear that certain types of prejudice require relief from a death sentence. In Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986), the Supreme Court decided that a defendant in a capital case where the defendant is black and the victim was white has a constitutional right to question the jury venire on their prejudices. The Supreme Court explained as follows:
Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected. On the facts of this case, a juror who believes that blacks are violence-prone or morally inferior might well be influenced by that belief in deciding whether petitioner's crime involved the aggravating factors specified under Virginia law. Such a juror might also be less favorably inclined toward petitioner's evidence of mental disturbances as a mitigating circumstance. More subtle, less consciously held racial attitudes could also influence a juror's decision in this case. Fear of blacks, which could easily be stirred up by the violent facts of petitioner's crime, might incline a juror to favor the death penalty.

Turner, 476 U.S. at 35; Accord Legare v. State, 256 Ga. 302, 348 S.E. 2d 881 (1986). The Turner Court concluded that the petitioner had shown a constitutional violation because the trial judge's refusal to permit voir dire on racial attitudes created an unacceptable risk that "racial prejudice may have infected petitioner's capital sentencing."
10. In this case, therefore, Mr. CLIENT will establish that the decision makers are influenced by prejudices, akin to the types described in Turner, that would make them more likely to seek and impose the death penalty when the defendant is black rather than white, poor rather than rich, and when the victim is white rather than black.
11. Mr. CLIENT also specifically requests that the prosecution produce all notes, lists, memoranda or other records in the hands of any agent of the prosecution, and that the judge do the same, which would demonstrate any class or racial bias. Both the District Attorney and the trial court should also reveal any other indicia of racial bias, such as membership in exclusive clubs. Discovery of matters such as this must be allowed where "production of those facts is essential to the preparation of [the defendant's] case." Hickman v. Taylor, 329 U.S. 495, 511 (1947). Indeed, with regard to the disclosure of information in capital cases, the Alabama Supreme Court recently made clear that:
The hovering death penalty is the special circumstance justifying broader discovery in capital cases. In addition, because of the nature of the penalty in a capital case, the sentencing process becomes of utmost importance. . . . In a capital case the definition of "favorable evidence" expands at the sentencing stage to far beyond what it is at any stage of any other type of criminal proceeding. . . . This statutory mandate that a defendant shall be allowed to offer evidence of mitigating circumstances is another reason why broad discovery must be allowed.

Ex parte Monk, 557 So. 2d 832, 836-37 (Ala. 1989); see also Ex parte Womack, 541 So. 2d 47 (Ala. 1988). Additionally, because of the public policy considerations which militate against a public official covering up his or her own racial discrimination, any effort to restrict public access to documents in the possession of public officials is looked upon with disfavor. Parker v. Lee, 259 Ga. 195, 378 S.E. 2d 677, 679 (1989); see also Amadeo v. Zant, 486 U.S. 214, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988)
WHEREFORE, Mr. CLIENT moves that this Court grant the following relief:
A. Setting his motion down for an evidentiary hearing where he may prove the allegations set forth in his motion; and,
B. Ordering such disclosures on the part of the prosecution and the trial court as may be necessary for Mr. CLIENT to make out his case; and
C. Ordering that this Court order the State not to seek the death penalty against him.
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