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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 ASSURE THAT MITIGATING CIRCUMSTANCES
RECEIVE THEIR DUE WEIGHT AND ATTENTION FROM THE JURY
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 assure that mitigating circumstances receive their due weight and attention from the jury. In support of his
motion, Mr. CLIENT states as follows:
2. 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).
3. The "Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating
factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death." State v. Brogdon, 457 So. 2d 616, 622 (La. 1984) (emphasis in original)
(quoting Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)).
4. There is a considerable problem with this principle--that is, very often jurors have little idea what the notion of mitigation
really means. It makes no sense that jurors be required to consider mitigating circumstances if they do not understand what it
means to give such evidence true meaning. "In order to pass federal constitutional muster capital sentencing procedures must
be designed to prevent a substantial risk that the death penalty will be imposed in an arbitrary and capricious manner by
directing and limiting the jury's discretion so that the death penalty will be imposed in a consistent and rational manner and so
that there will be a meaningful basis for distinguishing the cases in which it is imposed from the many in which it is not." State v.
Brogdon, 457 So. 2d 616, 625 (La. 1984) (citing Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859
(1976)).
5. Some small steps have been taken to address this problem. For example, it has long been the case that the jury must be
"charged as to the statutory mitigating circumstances. . . ." State v. Baldwin, 388 So. 2d 664, 676 (La. 1980). This may
require instruction on the specific meaning of words associated with those circumstances, so the accused is also entitled to an
instruction explaining to the jury the meaning of "mental disease or defect," as it is used with respect to mitigating
circumstances. State v. English, 367 So. 2d 815, 818 (La. 1979).
6. Nevertheless, jurors still do not comprehend the full scope of mitigating circumstances. This has been demonstrated in
recent studies, which could be replicated in Mr. CLIENT's case. See generally Strawn & Buchanan, Jury Confusion: A
Threat to Justice, 59 Judicature 478 (1976).
7. In closing, the judge will read only two applicable statutory mitigating circumstances, La. Code Crim. Pro. Section 905.5,
and then permit the jury to consider "any other relevant mitigating circumstance." That the jury will be confused as to what this
means is illustrated by the fact that trial judges have simply read from the law dictionary in defining this:
All right, I'm going to read [to] you from a law dictionary of the phrase "mitigating circumstances". And, of course, I will read
you the circumstance you are talking about. It says, "any other relevant", so not only must it be a mitigating circumstance, it
must be a relevant mitigating circumstance. The law in this book is the only source I have. Mitigating circumstance is defined
as: such as do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be
considered an extenuating or reducing the degree of moral culpability. That is the definition.
(State v. Clarence Smith, Orleans Parish, Record on Appeal Tr. IV/724-25) (emphasis supplied)
8. Two problems are immediately apparent from this instruction: First, how was the jury to decide what was "relevant"? Of
course, under the law, any mitigating circumstance is relevant, but the jury would not have understood this. Second, assuming
that someone who could not understand the word "mitigating" would understand the word "extenuating," the instruction
improperly limited mitigating circumstances to "reducing the degree of moral culpability." What about other mitigating
circumstances? Does the fact that the individual has adapted to prison life "reduce moral culpability" for the crime? Obviously
not, yet it is a mitigating circumstance. Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986). Does
the fact that the defendant will spend the rest of his or her life in prison, without parole, "reduce moral culpability" for the
crime? Obviously not, yet it is a mitigating circumstance. See, e.g., Turner v. State, 573 So. 2d 657, 673-75 (Miss. 1990).
Does the defendant's capacity for rehabilitation "reduce moral culpability" for the crime? Obviously not, yet this is a mitigating
circumstance. Conner v. State, 251 Ga. 113, 303 S.E.2d 266 (1983), cert. denied, 464 U.S. 865 (1983). The list of
mitigating circumstances not covered by the dictionary instruction could go on ad infinitum.
9. The Eighth Amendment absolutely forbids a situation where "the sentencing jury is unaware of what it may consider in
reaching its decision." Chenault v. Stynchcombe, 581 F.2d 444, 448 (5th Cir. 1978). For this reason, with respect to
mitigating circumstances, the Supreme Court has "mandate[d] that the judge clearly instruct the jury. . . ." Chenault v.
Synchcombe, 581 F.2d at 448 (citing Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)); accord
Balkcom v. Goodwin, 684 F.2d 794, 801-02 (11th Cir. 1982); Spivey v. Zant, 661 F.2d 464, 469-71 (5th Cir. 1981);
Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981).1
10. It will take thorough voir dire, and much more thorough instructions than are normally given in capital cases to assure Mr.
CLIENT's fundamental right that jurors actually understand what they are doing when deciding between life and death. Mr.
CLIENT seeks to secure this right during pre-trial motions, when evidentiary development may make his point, rather than
wait for the panic of last-minute instructions conferences.
WHEREFORE, Mr. CLIENT respectfully moves that this Court assure that the jurors understand the full scope of mitigation,
and their role in finding such circumstances.
1. Indeed, this rule comes from a long line of cases in which the United States Supreme Court has strongly affirmed the need
for comprehensible and comprehensive instructions:
We have repeatedly recognized that 'instructing the jury in the basic . . . principles that govern . . . criminal justice is often
necessary. Jurors are not experts in legal principles; to function effectively, and justly, they must be accurately instructed in the
law.
Carter v. Kentucky, 450 U.S. 288, 302 (1981) (quoting, Lakeside v. Oregon, 435 U.S. 333, 342 (1978)); see also, Taylor
v. Kentucky, 436 U.S. 478 (1978).
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(..continued)
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