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IN THE DISTRICT COURT FOR THE PARISH OF PEINE DE MORT ============================================ STATE OF LOUISIANA, Plaintiff ============================================ MOTION TO PRECLUDE CREATION OF SNITCH TESTIMONY 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 pursuant to the Louisiana Constitution, and such other law as
may be set forth below, to take measures to assure that no jailhouse snitches are created in this case. In support of his motion,
Mr. Client states as follows: a. He has absolutely no intention of talking to anyone but his lawyers about the facts of the case. He has been approached by law enforcement officers, the F.B.I., and others, and has established a track record of refusing to discuss anything about his case. He is not about to change that now. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981) (where--as here--accused invokes right to counsel, the state cannot even approach the suspect to initiate interrogation); Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986) (same rule under the Sixth Amendment). b. He is incarcerated, against his will, in the penal institutions of the state, with other persons who are being held by the state. It is therefore beyond his own control to dictate with whom he is permitted to come in contact. He views anyone who wishes to talk to him about his case as an agent of the states. See United States v. Massiah, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964); Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977); United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980). c. If he had the decision as his own, he would not associate with anyone whom he did not absolutely trust between now and such time as he may be tried. d. He is aware--as is this Court--that he does not have to actually say anything for a jailhouse snitch to come forward and testify that he made a statement. He is therefore justifiably nervous that someone in the cell with him will simply make up a story. e. He would prefer to be placed in a single cell, where it would be much more difficult for a jailhouse snitch to make up such a story. b) On advice of counsel, Mr. Client is keeping a log of all the inmates with whom he comes in contact in the jail cells. He is also submitting to each person a statement for him or her to sign acknowledging Mr. Client's intent neither to discuss any aspect of his case, nor permit the other person to initiate such discussion. Of course, the committed snitch may refuse to sign such a statement, but there is little else Mr. Client can do to avert the creation of snitch testimony. c) Mr. Client therefore needs this Court's assistance to prevent the situation from arising where a snitch may make up a story. He requests an order: a. Precluding any state actor from sending in a Henry snitch to try to exact a statement out of Mr. Client, without prior notice to counsel, and an opportunity for counsel to be present. b. Requiring that Mr. Client be held in solitary confinement, where no snitch can come close to him, and make up a story. THE LAW GOVERNING SNITCH TESTIMONY d) Since this is to be a capital prosecution, exacting standards must be met to assure that it is fair. The death penalty "is unique in its irrevocability." Furman v. Georgia, 408 U.S. 238, 306, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Stewart, J., concurring). As the United States Supreme Court has held, "[t]he fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special '"need for reliability in the determination that death is the appropriate punishment"' in any capital case." Johnson v. Mississippi, 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988) (quoting, Gardner v. Florida, 430 U.S. 349, 363-64, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (quoting, Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (White, J., concurring))). e) Snitches must be divided into two species--the "pure" or "jailhouse" snitch, who comes into court with a story about an alleged confession in the prison cell, in order to exact benefit in another case; and, the "accomplice" snitch who seeks benefit for themselves in this particular case. The use of "snitches" in criminal--and, particularly, capital--cases is raising increasing concerns. For example, the Mississippi Supreme Court has recently warned of: an unholy alliance between con-artist convicts who want to get out of their own cases, law enforcement who [are] running a training ground for snitches over at the county jail, and the prosecutors who are taking what appears to be the easy route, rather than really putting their cases together with solid evidence. McNeal v. State, 551 So. 2d 151, 158 n.2 (Miss. 1989). f) The Court's approach is a reflection of the fact that cases are built on opportunist "snitches" on a frighteningly frequent basis. For this reason, the same court has warned that the testimony of an accomplice or a snitch "is to be received and considered with caution, as from a polluted and suspicious source." Dedeaux v. State, 87 So. 664, 665 (Miss. 1921) (citing Wilson v. State, 71 Miss. 880, 16 So. 304 (1894)); see also Cool v. United States, 409 U.S. 100, 103, 93 S. Ct. 354, 34 L. Ed. 2d 335 (1972) (there is a "recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity"). g) Indeed, the Supreme Court has also noted that [t]he use of informers, accessories, accomplices, false friends, or any of the other betrayals which are 'dirty business' may raise serious questions of credibility. On Lee v. United States, 343 U.S. 747, 757, 72 S. Ct. 967, 96 L. Ed. 1270 (1952) (emphasis supplied); see also United States v. Swiderski, 539 F.2d 854 (2nd Cir. 1976) (informer paid $10,000 for his services, worked on a contingent fee basis); United States v. Sarvis, 523 F.2d 1177, 1180 (D.C. Cir. 1975); United States v. Wasko, 473 F.2d 1282 (7th Cir. 1973); United States v. Leonard, 494 F.2d 955, 961 (D.C. Cir. 1974); United States v. Garcia, 528 F.2d 580 (5th Cir.1976), cert. denied sub nom. Sandoval v. United States, 426 U.S. 952, 96 S. Ct. 3177, 49 L. Ed. 2d 1190 (1976). h) For these reasons, the Court has held that snitch testimony "ought not to be passed upon . . . under the same rules governing other and apparently credible witnesses. . . ." Crawford v. United States, 212 U.S. 183, 204, 29 S. Ct. 260, 53 L. Ed. 465 (1909). Indeed, the Nevada Supreme Court recently noted "that a jail-house incrimination is not available in a fairly large number of homicide cases." D'Agostino v. State, 823 P.2d 283, 285 (Nev. 1991). The Court went on to hold that special precautions must be taken to avoid presenting unreliable evidence to the jury: A legally unsophisticated jury has little knowledge as to the types of pressures and inducements that jail inmates are under to "cooperate" with the state and to say anything that is "helpful" to the state's case. It is up to the trial judge to see that there are sufficient assurances of reliability prior to admitting this kind of amorphous testimony to keep this kind of unreliable evidence out of the hands of the jury. . . . Id. at 284; see also Cal. Penal Code Section 1127a (trial courts must instruct jurors that "testimony of an in-custody informant should be viewed with caution and close scrutiny"). i) In light of this law that points to the inherent dangers of the snitch, this Court must take action to assist Mr. Client in preventing them from surfacing--when it is clear that Mr. Client has no intention of talking to anyone but his lawyers about this case. WHEREFORE, Mr. Client respectfully requests that this Court enter an order as follows:
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