IN THE DISTRICT COURT FOR THE 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 EXCLUDE ACCOMPLICE/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 Article 1, §§ 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution to exclude any testimony of accomplice/snitch SAM SNITCH, as well as any other snitch who tries to make up a story on him. In support of his motion, Mr. CLIENT states as follows:

1. The testimony of paid informers, snitches expecting some benefit in their own cases, and accomplices who are trying to shift the blame for their own misdeeds is probably the single most important cause of the execution of the innocent, or of the less culpable. This stands to reason: The one who actually committed the crime is generally the one to squeal first, since they know that their goose is cooked. In contrast, innocent people or defendants who are only marginally culpable often harbor a--perhaps naive--belief that the justice system will exculpate them.
2. It is therefore very important that evidence in a capital case be reliable. After all, the prosecution is seeking to have Mr. CLIENT put to death. For this reason, the United States Supreme Court has held that "[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))).
3. The Louisiana Supreme Court has recognized the inherent unreliability of snitches. For example, in State v. Bay, 529 So. 2d 845 (La. 1988), the Supreme Court reversed a first degree murder conviction, finding that there was insufficient proof that the accused had received anything of value for the crime. Id. at 850-51. The only proof was the testimony of the state's snitch, who said that Bay had admitted to her that he had killed the victim "[b]ecause he was paid to" by one Mary Johnson. Id. at 850. The Court noted that the State failed to "adduce any evidence to corroborate White's testimony." Id. No evidence was brought out that the accused "had been seen with large amounts of money. There was nothing to show he had made unusual or expensive purchases. No bank records or financial information were produced. And there was nothing to show defendant's life style, standard of living or habits changed in any way around the time of [the victim's] death." Id.
4. Thus the testimony of an accomplice or a snitch may simply be too insubstantial to support a conviction. As the Court held in State v. Bay, 529 So. 2d 845 (La. 1988), "[w]ere we to assume White's demeanor on the stand made a far better impression than the cold transcript would suggest, and further assume jurors found the witness entirely credible, when viewed in the light most favorable to the prosecution, White's testimony standing alone is too insubstantial to establish beyond a reasonable doubt defendant had been offered or received something of value for killing [the victim]. No rational fact-finder could have found otherwise." Id. at 851 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)); see also State v. Hebert, 444 So. 2d 228 (La. App. 1 Cir. 1983) (snitch testimony in the case held to be insufficient to support the conviction); State in the interest of Williams, 325 So. 2d 854 (La. App. 2 Cir. 1976) (same).
5. Yet--as the Supreme Court found in Bay--jurors who are not experienced in the unpleasant ways of snitches may not be well-placed to determine evidence that it is inherently untrustworthy. In these situations--as in many others in the context of criminal trials--the evidence must be excluded from the jury's consideration.
6. In Mr. CLIENT's case, apparently SAM SNITCH is going to snitch on him, in an effort to save his own hide. Certainly, SNITCH was the person who first came under suspicion for the homicide offenses--after all, he had been living in the same building, would surely have known about the deaths before March 22, and yet did not report them. With various prior convictions, SNITCH could expect to go down for a long stretch on even a lesser charge unless he dealt with the prosecution. SNITCH went by aliases. Older than Mr. CLIENT, and with an education that was much better than Mr. CLIENT's, he therefore could be expected to be the leader of the pair.
7. There is no physical evidence that links Mr. CLIENT to the crime scene. There is no other physical evidence that could not, under a reasonable theory of the defense, equally link SNITCH to the homicides as it allegedly does Mr. CLIENT. SNITCH and Mr. CLIENT were taken into separate rooms at the police department and one was essentially played off against the other until the one who did not care whether he lived or died, and who felt he would rather be on Death Row than suffer what happened to him in jail last time he was there (in both examples, Mr. CLIENT) preferred to take the entire rap rather than go through further abuse at the hands of the police.
8. Information was fed to SNITCH about what evidence the police had, and he was therefore able to concoct a story that implicated Mr. CLIENT to the maximum, and distanced himself as far as credibly possible from the crimes charged. Obviously SNITCH could not get out from the charges in their entirety, since he is clearly guilty. However, instead of facing the death penalty, he now faces a relatively lenient term of years. For this benefit, SNITCH would do a great deal for law enforcement and for the perceived desires of the prosecution.
9. Various legal principles compel the conclusion that SNITCH may not testify at the trial on this matter. Mr. CLIENT addresses each principle in turn.
I. The prosecution may not use the confabulation of a lying snitch to secure a death sentence.

10. 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).

11. The Court's approach is a reflection of the fact that cases are built on opportunist "snitches"1 on a frighteningly frequent basis. For this reason, the same court has warned that a snitch "should be doubted because he had a motive for testifying as he did -- specifically, that he was testifying because he . . . was receiving preferential treatment." Foster v. State, 508 So. 2d 1111, 1115 (Miss. 1987).
12. Unfortunately, the one capital case on which a juror serves may be the only serious contact he or she ever has with the criminal justice system. The jurors often only see one "snitch". In contrast, the Louisiana Supreme Court has recognized that experience can teach a great deal about snitches. In State v. May, 339 So. 2d 764 (La. 1976), the Court said that it is:
. . . the rule of our experience in dealing with that class of testimony that . . . you should act upon his testimony with great caution, subject to great careful examination of the weight of the other evidence in the case. And you are not to convict upon such testimony alone unless satisfied, after a careful examination of its truth, that you feel you can safely rely on it. What the law means by corroboration of the testimony of an accomplice is not merely the corroboration of the accomplice's narrative and the mere details of how the crime was committed or the crime charged was committed, but some real and independent corroboration intending to implicate the defendant in the commission of the offense charged. It is not sufficient to corroborate an accomplice as to the facts of the case. Generally, he should be corroborated as to some material fact which tends to prove that the accused was connected with the crime that's charged.

Id. at 775.
13. Upon close analysis, the probability that SNITCH's statement in this case is confabulation is rather high. This is a very high-profile case, where a snitch knows that he or she would be able to exact a price from the prosecution for help in the case against him. Furthermore, Mr. CLIENT, accused of being a triple-murderer, is a likely target of malice. At the very best, "the testimony of an accomplice 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 (1973) (there is a "recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity").
14. 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). Since the jury is required to make a reasoned, deliberate determination of the accused's guilt in a capital case, the law requires that they not be left to rely on this highly unreliable evidence.
15. The use of accomplice/snitches is of great concern to the administration of justice. Indeed, the Nevada Supreme Court recently noted "that a jail-house incrimination is now available in a fairly large number of homicide cases." D'Agostino v. State, 823 P.2d 283, 285 (Nev. 1992). 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 § 1127a (trial courts must instruct jurors that "testimony of an in-custody informant should be viewed with caution and close scrutiny").
16. In this case, Mr. CLIENT will prove, at an evidentiary hearing on this issue, that the testimony of any snitch is too false, unreliable and tainted to go to a jury. The principle of all these cases requires that this Court hold an evidentiary hearing and exclude the inherently unreliable testimony of a snitch such as SAM SNITCH.
17. This Court must look to the various indicia of unreliability inherent in the snitch' story:
_ First, there is the snitch's motivation to lie--here, there is the expectation of a reward, with SNITCH getting out from the death penalty, and soon doubtless getting out of jail altogether.

_ Second, this Court must look to any indication that the snitch's testimony is corroborated to the extent that physical evidence links Mr. CLIENT to the crime. In this case, all the physical evidence would be just as likely to link SNITCH to the actual homicides, and Mr. CLIENT to being an accessory after the fact to murder, as the converse.

_ Third, this Court must look to whether the snitch could have made the story up against Mr. CLIENT. Clearly, were SNITCH the actual killer, he would know the facts of the case. Furthermore, as the police went back and forth between Mr. CLIENT and SNITCH, the latter got a good idea what he should say to get the police to focus entirely on Mr. CLIENT.

_ Fourth, this Court must look to the other prejudicial aspects of the testimony.

_ Fifth, this Court must look to the other facts that make it unlikely that Mr. CLIENT alone committed these crimes.

18. Applying these principles, this Court should rule that SNITCH's testimony should not be admitted in this capital trial.
II. No capital prosecution may rest on the unsupported tale of a perjurer.

19. The next legal principle to which we turn is fundamental to the entire American system of justice: In Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), the United States Supreme Court made it clear that the prosecution may not permit the presentation of perjury at any criminal trial -- let alone one where the State is seeking to have the accused executed.
20. Others Courts have long recognized and elaborated upon the principle of Giglio:
To be sure, where it may be established that a conviction has been obtained through the use or false evidence or perjured testimony, the accused's rights secured by the due process clause of the Fourteenth Amendment of the Constitution of the United States are implicated. And this is so without regard to whether the prosecution has wilfully procured the perjured testimony. Where such false evidence has in fact contributed to the conviction, the accused is entitled to relief therefrom.

Pearson v. State, 428 So. 2d 1361, 1363 (Miss. 1983) (emphasis in original) (citing Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)). Indeed, this general principle is so deeply rooted in the annals of the law that it barely requires repeating.2
21. "Whether the State solicits the false testimony or merely allows it to stand uncorrected when it appears does not diminish the viability of this principle. . . ." United States v. Vincent, 525 F.2d 262, 267 (2d Cir. 1975) (citing Napue v. Illinois, 360 U.S. at 269; Giglio v. United States, 405 U.S. at 153); Williams v. Griswold, 743 F.2d 1533, 1541 (11th Cir. 1984). Perjury cannot be permitted to go to the jury even when the defense has knowledge that perjury is being committed. See, e.g., United States v. Vincent, 525 F.2d 262 (2d Cir. 1975); State v. Cahill, 125 N.J. Super. 492, 311 A.2d 760 (1973); see also Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (error is committed "irrespective of the good or bad faith of the prosecution"); United States v. Butler, 567 F.2d 885, 888-89 (9th Cir. 1978). This is because "[t]he thrust of Giglio and its progeny has been that the jury knows the facts. . . ." Brown v. Wainwright, 785 F.2d at 1465 (quoting Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S. Ct. 510, 78 L. Ed. 2d 699 (1983)); see also United States v. Barham, 595 F.2d 231, 239 (5th Cir. 1979); Boone v. Paderick, 541 F.2d 447, 450 (4th Cir. 1976).
22. Since the prosecution is apparently intending to rely on SNITCH at trial, and since SNITCH is simply not telling the truth, no resulting conviction for first degree murder may withstand review. The state must be at least barred from seeking the death penalty in this case.
III. SNITCH's statements have been unconstitutionally obtained, and Mr. CLIENT may assert third party standing to exclude them

23. In addition to the other matters set forth above, SNITCH's statements were unconstitutionally obtained in the same manner as were Mr. CLIENT's. Mr. CLIENT hereby incorporates by reference all allegations set forth in his own motions to suppress. The same coercion was used against SNITCH to secure his "cooperation" as was used against Mr. CLIENT. SNITCH likewise has a history of run-ins with the law and, on information and belief, also had his constitutional right to counsel violated.
24. For the reasons set forth in Mr. CLIENT's other motions, he has third party standing to raise the issue of the unconstitutional manner in which SNITCH's statements were taken. Indeed, he likewise has this right under the federal constitution.
WHEREFORE, Mr. CLIENT moves that this Court enter an order as follows:
1. Setting this motion down for an evidentiary hearing at which he may marshall his evidence in the case; and,
2. Excluding any snitch's testimony from the case against Mr. CLIENT; and/or
3. Excluding the death penalty as a potential option in this case.
1 The term "snitch" is generally used in two distinct ways: First, simply to signify someone who is "ratting" on a co-indictee; second, someone who is telling a story against another person for his or her own advantage. Thus, the term may include an "accomplice snitch" as well as the "regular snitch." For purposes of this pleading, all snitches will be lumped together, since they are basically cut from the same cloth.
2See, e.g., United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); Miller v. Pate, 396 U.S. 1, 7, 87 S. Ct. 785, 17 L. Ed. 2d 690 (1967); Alcorta v. Texas, 355 U.S. 28, 78 S. Ct. 103, 2 L. Ed. 2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 89 L. Ed. 791 (1935); Brown v. Wainwright, 785 F.2d 1457 (11th Cir. 1986); Williams v. Griswold, 743 F.2d 1533 (11th Cir. 1984); United States v. Iverson, 637 F.2d 799 (D.C. Cir. 1981); Dubose v. LeFevre, 619 F.2d 973 (2d Cir. 1980); United States v. SanFilippo, 564 F.2d 176 (5th Cir. 1977); United States v. Pope, 529 F.2d 112 (9th Cir. 1976); United States v. Librach, 520 F.2d 550 (8th Cir. 1975); Teague v. United States, 499 F.2d 1381 (7th Cir. 1974); State v. Morgan, 299 S.E.2d 823 (N.C. App. 1983); Walker v. State, 624 P.2d 687 (Utah 1981); State v. Towns, 432 A.2d 688 (R.I. 1981); Merrill v. Warden, 418 A.2d 74 (Ct. 1979); State v. Taylor, 49 N.J. 440, 231 A.2d 212 (1967).
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