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 REMEDY PROSECUTORIAL ABUSE

Mr. CLIENT, by counsel, hereby moves this Court, pursuant to Article 1 of the Louisiana Constitution and the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States, for an order remedying prosecutorial abuse in this case, insofar as members of the prosecution team have tainted Mr. CLIENT's right to a fair trial with improper comments to the media. In support of his motion, Mr. CLIENT states as follows:
1. On March 27, 1989, an article entitled "Prosecutors hope case will aid in later trial" appeared in the Daily News. A copy of the article is attached hereto as Exhibit A. In the article, the District Attorney is quoted as stating: "If the defendant is convicted of rape, we can use it as an additional aggravating circumstance in the capital murder trial." He also elaborated on the use of a later crime as an aggravating circumstance in an earlier first degree murder. The lead sentence in the article outlines the strategy of the District Attorney: "County prosecutors this week will seek to convict defendant of rape -- hoping to use the case as evidence at his later trial for capital murder." The District Attorney is also quoted as mentioning that Mr. CLIENT has allegedly confessed, and that Mr. CLIENT purportedly has an extensive criminal record.
2 Disciplinary Rule 3.6 of the Rules of Professional Conduct of the Louisiana State Bar provides:
[a] A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

[b] A statement referred to in Paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement shall include, but not be limited to:

(1) The character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

(2) In a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense of the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;

(3) The performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity of nature of physical evidence expected to be presented;

(4) Any opinion as to the guilt of innocence of a defendant or suspect in a criminal case of proceeding that could result in incarceration;

(5) Information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or

(6) The fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

(c) Notwithstanding Paragraphs (a) and (b)(1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:

(1) The general nature of the claim or defense;

(2) The information contained in a public record;

(3) That an investigation of the matter is in progress, including the general scope of the investigation, the offense of claim or defense involved and, except when prohibited by law, the identity of the persons involved;

(4) The scheduling or result of any step in litigation;

(5) A request for assistance in obtaining evidence and information necessary thereto;

(6) A warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) In a criminal case:

(i) The identity, residence, occupation and family status of the accused;

(ii) If the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) The fact, time and place of arrest; and

(iv) The identity of investigating and arresting officers or agencies and the length of the investigation.

2. The defendant is entitled to due process, a public trial, a trial by an impartial jury of the State and district where the crime occurred and other rights guaranteed him by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 1 of the Louisiana Constitution. The comments made by the District Attorney preclude the access of the defendant to these rights, as well as violating the provisions of Rule 3.6.
3. The statements made by the District Attorney place before potential jurors inadmissible evidence. The statements appeared several times in articles in the Daily News, which has a distribution of in this Parish. As a public official, the District Attorney has an obligation to uphold the constitutional rights of the defendant. Rule 3.8 of the Rules of Professional Conduct of the Louisiana State Bar states:
The prosecutor in a criminal case shall: (a) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to preliminary hearing.

Indeed, these same duties of the prosecuting attorney were well-stated in the classic opinion of Justice Sutherland fifty-five years ago. The interest of the prosecutor, he wrote:
is not that he shall win a case, but that justice be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.

Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); accord ABA Standards on the Prosecution Function Standard 3-1.1(a); State v. Locklear, 241 S.E. 2d 65, 69 (N.C. 1978) ("[p]rosecuting attorneys owe honesty and fervor to the State and fairness to the defendant" (emphasis supplied)). Equally, EC 7-33 provides:
A goal of our legal system is that each party shall have his case, criminal or civil, adjudicated by an impartial tribunal. The attainment of this goal may be defeated by dissemination of news or comments which tend to influence judge or jury. Such news or comments may prevent prospective jurors from being impartial at the outset of the trial and may also interfere with the obligation of jurors to base their verdict solely upon the evidence admitted in the trial. The release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal. For these reasons, standards for permissible and prohibited conduct of a lawyer with respect to trial publicity have been established.

4. The ABA Project on Standards for Criminal Justice Standards Relating to the Prosecution Function, Standard 1.3 and the accompanying commentary, further underscore the importance of restraint on the part of the District Attorney's office:
1.3 Public Statements

(a) The prosecutor should not exploit his office by means of personal publicity connected with a case before trial, during trial and thereafter.

(b) The prosecutor should comply with the ABA Standards on Fair Trial and Free Press.

Commentary:

The prosecutor's responsibility to the administration of justice requires that he do nothing which will impair the right of the accused to a fair and impartial treatment in every case. As the representative of the public interest his only interest is to see that justice is done. He should not exploit the power and prestige of his office for his own personal aggrandizement. Circumspection in this regard is most acutely required in cases which excite public interest. The very nature of his function as an administrator of justice requires that the prosecutor unselfishly avoid personal publicity in connection with the cases he prosecutes.

5. The courts have treated this problem with the seriousness it deserves. In re Grand Jury Investigation, 610 F.2d 202 (5th Cir. 1980), reviewed the conduct of U.S. Attorneys who were quoted in newspaper articles as the source for information concerning grand jury matters. The Court concluded that a sufficient prima facie case had been made for violation of the rule governing disclosure of grand jury matters. The court remanded the case for an evidentiary hearing on motion to hold the government attorneys in civil contempt.
6. In re Hansen, 584 P.2d 805 (Utah 1978), was a decision which concerned a prosecutor who made statements to a reporter about the strength of the prosecutor's case and the likelihood of its outcome, in violation of DR 7-107(B)(6). The court held that prosecutor subject to censure and reprimand. The release of information by officials such as the prosecutor and police such as other crimes is considered inherently prejudicial. If it occurs during a trial, it is automatic grounds for a new trial. Marshall v. United States, 360 U.S. 310 (1959). Again, in Hughes v. State, 437 A.2d 559 (Del. Supr. 1981), the Court reversed due to the comment of the prosecutor about the defendant's polygraph examination, a comment which clearly violated DR 7-107(D). The court considered the comment particularly objectionable in light of the fact that the information was inadmissible at trial. The comments of the prosecutor in this case were just as objectionable, more so because of the seriousness of the charge here and the irrevocable nature of the penalty of death. See In re Grand Jury Investigation, 610 F.2d 202 (5th Cir. 1980) (defendant's attorney entitled to evidentiary hearing on motion to cite prosecutor for contempt); In re Hansen, 584 P.2d 805 (Utah 1978) (prosecutor subjected to censure and reprimand); In re J.S., 436 A.2d 772 (Vt. 1981) (disqualification of prosecutor).
7. The District Attorney impermissibly announced his intent to use a rape conviction as an aggravating circumstance at defendant's capital murder trial. At the very least, the prosecution should be precluded from using any rape conviction as an aggravating circumstance at the capital murder trial, just as the prosecution would be precluded from using illegally obtained evidence or evidence that the prosecution improperly fails to disclose to the defense.
8. Mr. CLIENT should also be granted a continuance, in the hope that time will lessen the prejudicial impact of the District Attorney's comments. This Court should also allow extensive, individual sequestered voir dire and additional peremptory strikes to ensure that no taint reaches jury deliberations. Voir dire of the whole panel on this issue would, of course, extend the taint.
WHEREFORE, Mr. CLIENT respectfully requests the following relief:
a. That the District Attorney be disqualified from prosecuting this cause;
b. That the prosecution be precluded from using any rape conviction as an aggravating circumstance at the capital murder trial;
c. That the defense be granted a continuance;
d. That defendant be granted individual, sequestered voir dire; and,
e. That defendant be granted additional peremptory strikes.
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