IN THE FIFTIETH JUDICIAL DISTRICT
PARISH OF PEINE DE MORT
STATE OF LOUISIANA

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STATE OF LOUISIANA
v.
JOHN CLIENT
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DEMAND FOR DISCOVERY OF EVIDENCE
RELEVANT TO POSSIBLE MITIGATING CIRCUMSTANCES

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 order timely disclosure of evidence which may be of assistance to the defense in mitigation. In support of his motion, John Client states as follows:

1. The defendant has the right to disclosure of evidence which may be helpful in mitigation. This much the Louisiana Supreme Court recently made absolutely clear: "The prosecutor, upon request, must furnish to the defense any evidence favorable to the accused that is material to guilt or punishment. * * * [T]he trial court should conduct an in camera inspection of the prosecutor's file and should order disclosure of any information favorable to the accused that is material to the plea of insanity in the guilt phase or to the mitigating circumstance of mental illness or defect in the sentencing hearing." State v. Jackson, 608 So. 2d 949 (La. 1992) (emphasis in original); see also State v. Felde, 422 So. 2d 370, 383-84 (La. 1982) (defense entitled to evidence "favorable to the defendant and material and relevant to the issue of guilt or punishment") (citing La. C. Cr. Pro. arts. 718, 723); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (same); Calley v Callaway, 519 F.2d 184, 221 (5th Cir. 1975) (en banc) (Brady requires "the disclosure of material evidence favorable in the sense of mitigation") (emphasis supplied), cert. denied, 425 U.S. 911 (1976); Chaney v Brown, 730 F.2d 1334 (10th Cir. 1984), cert. denied, 469 U.S. 1090, 105 S. Ct. 601, 83 L. Ed. 2d 710 (1984) (Brady violation regarding penalty phase).
2. Obviously, this does not apply simply to the mitigating circumstance of mental illness, but to any other that the defense may raise at trial. The Louisiana Supreme Court has stressed the breadth of evidence admissible in mitigation. See, e.g., State v. Lee, 559 So. 2d 1310, 1319 (La. 1990), cert. denied, 499 U.S. 954, 111 S. Ct. 1431, 113 L. Ed. 2d 482 (1991) ("Special precaution should be taken in capital cases to allow all relevant mitigating evidence before the jury...", citing right under U.S. Constitution to present such evidence); Busby v. Butler, 538 So. 2d 164, 172 (La. 1988) ("The defendant has the right to introduce virtually any evidence in mitigation at the penalty phase."); State v. Weiland, 505 So. 2d 702, 707 (La. 1987) ("It is well established that the defendant in a capital case must be allowed to place before the sentencing jury all relevant evidence in mitigation of punishment); see State v. Brown, 514 So. 2d 99, 112 (La. 1987), cert. denied, 486 U.S. 1017, 108 S. Ct. 1754, 100 L. Ed. 2d (1988) (court approves of trial court's jury instructions that jury not only consider statutory mitigators, but any other relevant circumstances that may mitigate the severity of the punishment); State v. Jones, 474 So. 2d 919, 932 (La. 1985), cert. denied, 476 U.S. 1178, 106 S. Ct. 2906, 90 L. Ed. 2d 992 (1986); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (any of the "diverse frailties of humankind" constitute mitigating factors which must be considered as a matter of law in deciding punishment); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (jury must consider "any aspect of the defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death); accord Bell v. Ohio, 438 U.S. 637, 98 S. Ct. 2977, 57 L. Ed. 2d 1010 (1978).
3. To provide assistance to the prosecution, John Client suggests the following examples of potential mitigating circumstances:
> Any evidence that might create a residual doubt as to John Client's guilt of the crimes charged. See State v. Lee, 524 So.2d 1176 (La. 1987), rehearing granted, 524 So.2d 1190, 1192 (La. 1988) (court reverses death sentence and remands on basis of use of improperly admitted confession at sentencing phase; "[e]ven if the jury was certain enough of the defendant's guilt to convict (without hearing the confession), one or more jurors might have retained minor trepidations about the nature of the state's circumstantial evidence . . .[s]uch uncertainty, though not rising to the level of reasonable doubt regarding guilt, might have led such a juror to hold out for a life sentence); cf. State ex rel. Burnham v. Blackburn, 484 So.2d 656, 657 (La. 1986) (court reverses life sentence in capital conviction because trial court did not properly instruct jury that they had to find an aggravating circumstance to convict defendant for first degree murder; based on the record, the existence of an aggravator was in doubt because the jury may have had "lingering doubts" about the credibility of the state's only witness as to the aggravator); see also State v. Messiah, 538 So.2d 175, 186 (La. 1988), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).
> John Client has no significant, admissible history of prior criminal activity. See La. Code Crim. Pro. art. 905.4(a) ("The offender has no significant prior history of criminal activity"); State v. Williams, 383 So.2d 369, 374-75 (La. 1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 899, 66 L. Ed. 2d 828 (1981); State v. Sonnier, 380 So.2d 1, 8-9 (La. 1979); State v. Weiland, 505 So.2d 702, 708-709 (La. 1987).
> That John Client is of a generally non-violent disposition. See State v. Wingo, 457 So.2d 1159, 1163-64 (La. 1984), cert. denied, 471 U.S. 1030, 105 S. Ct. 2049, 85 L. Ed. 2d 322 (1985) (testimony as to the defendant's good reputation for non-violence, psychologist's testimony that defendant had a non-violent disposition).
> the offense was committed while John Client was under the influence of mental or emotional disturbance of any kind. See Zant v. Stephens, 462 U.S. 862, 887, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Wilson v. Butler, 813 F.2d 664 (5th Cir. 1987) (Fifth Circuit remands petitioner's appeal to conduct evidentiary hearing on whether defendant was mentally impaired at time of crime); Busby v. Butler, 538 So.2d 164, 169 (La. 1988) (counsel has duty to investigate defendant's mental health history for possible mitigation evidence); State v. English, 367 So. 2d 815, 819 (La. 1979); State v. Perry, 502 So.2d 543, 561 (La. 1986), cert. denied, 484 U.S. 872, 108 S. Ct. 511, 98 L. Ed. 2d 511 (1987); see also State v. Sullivan, 596 So. 2d 177, 192 (La. 1992), rev'd on other grounds, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) ("Psychiatric mitigating evidence not only can act in mitigation, it also can significantly weaken the aggravating factors"); La. Code Crim. Pro. art. 905.4(b) ("The offense was committed while the offender was under the influence of extreme mental or emotional disturbance"); La. Code Crim. Pro. art. 905.4(e) ("At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect or intoxication").
> John Client has suffered from mental illness by the conditions of hospitalization, as well as by the actual fact of illness. See State v. Sullivan, 596 So.2d 177, 191-192 (La. 1992)
> John Client is of an abnormal mental level. See Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (jury must consider mental retardation in mitigation); State v. Brogdon, 457 So.2d 616, 633 (La. 1984), cert. denied, 471 U.S. 1111, 105 S. Ct. 2345, 85 L. Ed. 2d 862 (1985) ("dull normal intelligence and his borderline personality diminished his intellectual capacity to some extent" mitigating); State v. Comeaux, 514 So.2d 84, 98-99 (La. 1987) (mental retardation); State v. Prejean, 379 So.2d 240, 247-249 (La. 1979), cert. denied, 449 U.S. 891, 101 S. Ct. 253, 66 L. Ed. 2d 119 (1980).
> That John Client might have an excitable disposition contributing to his actions. See State v. Sonnier, 380 So.2d 1, 8-9 (La. 1979) ("substantial" mitigating evidence included fact that defendant was "of excitable disposition").
> That John Client was suffering from unrelated but abnormal stressors at the time of the crime. See State v. Lee, 524 So.2d 1176, 1188 (La. 1988) (fact that he had recently broken up with his girlfriend, had uncontrollable hair loss, and thought he was suffering from herpes contributed to stress).
> John Client's capacity to appreciate the criminality of his alleged conduct or to conform his conduct to the requirements of law was impaired in any fashion. See La. Code Crim. Pro. art. 905.4(e) ("At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect or intoxication").
> John Client acted at the time of the crime under the influence of alcohol. See La. Code Crim. Pro. art. 905.4(e) ("At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of . . . intoxication"); State v. Prejean, 379 So.2d 240, 247-249 (La. 1979); State v. Williams, 383 So.2d 369, 374-75 (La. 1980); State v. Brogdon, 457 So.2d 616, 633 (La. 1984); State v. Loyd, 489 So.2d 898, 906-907 (La. 1986), cert. denied, 481 U.S. 1011, 107 S. Ct. 3244, 95 L. Ed. 2d 823 (1987); State v. Lee, 524 So.2d 1176, 1188 (La. 1988).
> John Client has suffered in life as an alcoholic. See State v. Weiland, 505 So.2d 702, 708-709 (La. 1987).
> John Client acted at the time of the crime under the influence of drugs. See La. Code Crim. Pro. art. 905.4(e) ("At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired as a result of . . . intoxication"); State v. Watson, 449 So.2d 1321, 1334 (La. 1984), cert. denied, 469 U.S. 1181, 105 S. Ct. 939, 83 L. Ed. 2d 952 (1985) (defendant's addiction to drugs is mitigating evidence); State v. Tassin, 536 So.2d 402, 416 (La. 1989), cert. denied, 493 U.S. 874, 110 S. Ct. 205, 107 L. Ed. 2d 159 (1989) (evidence that defendant was under influence of drugs during crime is proper mitigation); State v. Lee, 524 So.2d 1176, 1188 (La. 1988) (marijuana); State v. Williams, 383 So.2d 369, 374-75 (La. 1980); State v. Myles, 389 So.2d 12, 23 (La. 1979).
> John Client's age at the time of the offense. Cf. La. Code Crim. Pro. art. 905.4(f) ("The youth of the offender at the time of the offense"); State v. Lindsey, 543 So.2d 886, 905-907 (La. 1989), cert. denied, 494 U.S. 1074, 110 S. Ct. 1796, 108 L. Ed. 2d 798 (1990); see also State v. Holtan, 205 N.W.2d 671 (Neb. 1977), cert. denied, 449 U.S. 891, 101 S. Ct. 250, 66 L. Ed. 2d 117 (1980); Hitchcock v. State, 413 So.2d 741 (Fla. 1982), 459 U.S. 960, 103 S. Ct. 274, 74 L. Ed. 2d 213 (1982).
> the victim was a participant in John Client's alleged conduct, or the victim had any kind of history of abusing other people, including but not limited to dealing in illegal drugs.
> John Client allegedly had an accomplice or accomplices substantially, equally or more responsible for the death of the victim. See La. Code Crim. Pro. art. 905.4(g) ("The offender was a principal whose participation was relatively minor"); State v. Sonnier, 380 So.2d 1, 8-9 (La. 1979) ("substantial" mitigating evidence included fact that defendant played a "subsidiary" role in the crime); see also Davis v. State, 271 S.E.2d 828 (Ga. 1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981).
> Evidence of co-defendant's, co-indictee's, or accomplice's relatively lenient plea bargain, Messer v. State, 330 So.2d 137 (Fla. 1976); Messer v. State, 403 So.2d 341 (Fla. 1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2259, 72 L. Ed. 2d 863 (1982); Herzog v. State, 439 So.2d 1372 (Fla. 1983); State v. Irwin, 282 S.E.2d 439 (N.C. 1981)
> Evidence of co-defendant's, co-indictee's, or accomplice's relatively lenient sentence.
> John Client acted under duress or under any kind of domination of another person. See La. Code Crim. Pro. art. 905.4(c) ("The offense was committed while the offender was under the influence or under the domination of another person"); State v. Sonnier, 380 So.2d 1, 8-9 (La. 1979) ("substantial" mitigating evidence included fact that defendant was a "mental and physical weakling" acting under his co-defendant brother's influence); State v. Glass, 455 So.2d 659, 666 (La. 1984), cert. denied, 471 U.S. 1080, 105 S. Ct. 3516, 87 L. Ed. 2d 645 (1985) (fact that defendant committed crime while under influence or domination of another is mitigating circumstance).
> John Client allegedly committed the offense under circumstances which he reasonably believed to provide a moral justification or extenuation for his conduct. See La. Code Crim. Pro. art. 905.4(d) ("The offense was committed under circumstances which the offender reasonably believed to provide a moral justification or extenuation for his conduct").
> John Client has adapted, or will adapt, to prison life. See Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986) (death sentence vacated because defendant not allowed to put on evidence of good behavior in prison after arrest as a mitigating factor); State v. Copeland, 530 So.2d 526, 538 (La. 1988) (testimony from assistant warden that defendant had been model prisoner during time between conviction and re-sentencing); see also State v. Watson, 628 P.2d 943 (Ariz. 1981).
> That John Client could make a positive contribution to prison life. See State v. Wingo, 457 So.2d 1159, 1163-64 (La. 1984) (testimony from an inmate as to the "positive contributions made by lifers in prison" proper mitigating evidence); see also State v. Holtan, 250 N.W.2d 671 (Neb. 1977) (efforts to save the life of another inmate).
> That John Client has the capacity for rehabilitation. See Moore v. Commonwealth, 634 S.W.2d 426 (Ky. 1982); Conner v. State, 303 S.E.2d 266 (Ga. 1983), 464 U.S. 865, 104 S. Ct. 203, 78 L. Ed. 2d 177 (1983).
> John Client will not be paroled for a long time on a life sentence, or will never be paroled. See Davis v. State, 512 So.2d 1291 (Miss. 1987), cert. denied, 485 U.S. 913, 108 S. Ct. 1088, 99 L. Ed. 2d 247 (1988); Turner v. State, 573 So.2d 657, 673-75 (Miss. 1990), cert denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89 (1991); Berry v. State, 575 So.2d 1 (Miss. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2042, 114 L. Ed. 2d 126 (1991); Mackbee v. State, 575 So.2d 16 (Miss. 1990)
> any state agent intends to act or is considering acting in any manner to ensure that the defendant spends a long time in prison on a life sentence;
> that John Client has suffered abuse at any time in his life, at the hands of family members or anyone else. See Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982) (death sentence vacated because sentencer did not recognize that defendant's troubled childhood was a mitigating factor); State v. Myles, 389 So.2d 12, 23 (La. 1980); State v. Loyd, 489 So.2d 898, 906-907 (La. 1986); State v. Lindsey, 543 So.2d 886, 905-907 (La. 1989) ("parental neglect" of defendant); State v. Cage, 554 So.2d 39, 44 (La. 1989), rev'd on other grounds, 498 U.S. 39, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990) (evidence of defendant's childhood/broken family life); State v. Sullivan, 596 So.2d 177, 191-192 (La. 1992) (evidence that defendant was "raised in an abusive, alcoholic, often brutal environment"); see also People v. Marsh, 36 Cal.3d 134 (Cal. 1984) (neglected childhood).
> that John Client has had a difficult life. See Busby v. Butler, 538 So.2d 164, 169-171 (La. 1988) (defendant's difficult childhood, starting with a difficult birth).
> Trauma suffered by John Client during his service to his country. See State v. Sharp, 418 So.2d 1344, 1346 (La. 1982) (testimony that 11 months in combat in Vietnam "indelibly scarred" the defendant was proper mitigation); State v. Felde, 422 So.2d 370 (La. 1982); see also Moody v. State, 418 So.2d 989 (Fla. 1982), cert. denied, 459 U.S. 1214, 103 S. Ct. 1213, 75 L. Ed. 2d 451 (1983) (personality change after Vietnam).
> John Client's service to his country. See State v. Lee, 524 So.2d 1176, 1188 (La. 1988) (excellent military record).
> that John Client has tried to assist those less fortunate than himself. See State v. Martin, 376 So.2d 300, 313 (La. 1979).
> That John Client has been of general good character in his life. See State v. Loyd, 489 So.2d 898, 906-907 (La. 1986) (defendant was "law abiding citizen"); see also State v. Johnson, 257 S.E.2d 597 (N.C. 1979) (general good character).
> That John Client has good behavior during the proceedings against him. See Delap v. State, 440 So.2d 1242 (Fla. 1983), cert. denied, 440 So. 2d 1242, 104 S. Ct. 1559, 82 L. Ed. 2d 860 (1984).
> That John Client has felt remorse for those things that he has done in his life that have been wrong. See State v. Loyd, 489 So.2d 898, 906-907 (La. 1986); see also Magill v. State, 386 So.2d 1188 (Fla. 1980), cert. denied, 450 U.S. 927, 101 S. Ct. 1384, 67 L. Ed. 2d 359 (1981); Pope v. State, 441 So.2d 1073 (Fla. 1983).
> John Client has tried suicide in remorse for those crimes he has committed. See State v. Weiland, 505 So.2d 702, 708-709 (La. 1987).
> that John Client has been active in his church. See State v. Martin, 376 So.2d 300, 313 (La. 1979); State v. Wingo, 457 So.2d 1159, 1163-64 (La. 1984) (testimony from priest that defendant held "basic Christian beliefs"); State v. Copeland, 530 So.2d 526, 538 (La. 1988) (testimony from prison minister that defendant had been baptized while in prison, attended Bible classes regularly and assisted the minister); State v. Cage, 554 So.2d 39, 44 (La. 1989) (defendant's discovery of religion).
> that John Client may sometimes act out of an aberrational religious belief. See Moody v. State, 418 So.2d 989 (Fla. 1982) (religious obsession).
> That John Client has been recently married. See State v. Martin, 376 So.2d 300, 313 (La. 1979).
> That John Client has children for whom he has cared. See State v. Martin, 376 So.2d 300, 313 (La. 1979).
> That John Client has been a good parent. See State v. Wingo, 457 So.2d 1159, 1163-64 (La. 1984) ("good parent" testimony from relatives).
> John Client has friends and relatives who love him and do not want to see him die. See State ex rel. Busby v. Butler, 538 So. 2d 164, 170 (La. 1988) ""members of Busby's family . . . would have pled with the jury to spare [his] life"); State v. Sullivan, 596 So. 2d 177, 191 (La. 1992) (family "would have told the jury they loved him and pleaded with the jury to spare his life"); see also Cofield v. State, 274 S.E.2d 530 (Ga. 1979);
> There are witnesses who desire that John Client should not be executed. Romine v. State, 305 S.E.2d 93 (Ga. 1983).
> That John Client has written poetry. People v. Harris, 36 Cal.3d 36, 679 P.2d 433 (Cal. 1984), cert. denied, 469 U.S. 965, 105 S. Ct. 365, 83 L. Ed. 2d 301 (1984).
> in partial or total negation of any evidence offered by the state in support of any alleged aggravating circumstance; and,
> in support of any other possible mitigating factor which John Client might choose to present to the jury.
WHEREFORE, John Client moves that this Court order the State to give notice of which elements the State seeks to prove in aggravation, and provide discovery in mitigation.
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