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 DISMISS THE INDICTMENT
ON ACCOUNT OF ABUSE OF THE GRAND JURY PROCESS

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 the Louisiana Constitution to quash the indictment on grounds of abuse of the Grand Jury process. In support of his motion, Mr. CLIENT states as follows:
THE FACTS

1. This case is probably the most-highly publicized case in Parish history. The publicity can only be described as saturation, and was full of inaccuracies, as publicity is wont to be. See, e.g., Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163 (Miss. 1987).
2. The hostility against Mr. CLIENT in this community is absolutely unparalleled. He is in the process of surveying the community. So far, one hundred percent of those surveyed had heard about the case. Of these, 23% actually thought Mr. CLIENT should be allowed a fair trial; however, a massive 77% did not, and had already made up their minds that he was guilty. A clear majority overall (59%) felt -- not having heard one shred of evidence -- that he should be executed. A change of venue has already been granted.
3. The change of venue will come in time for the trial of the case. However, at the time that the prejudicial impact of the publicity was at its height, Mr. CLIENT was indicted in this Parish, the epicenter of the widespread media coverage.
4. The evidence was put before the grand jury without adequate procedural safeguards. On information and belief, the prosecutor improperly injected himself into the grand jury's decision making with inflammatory comments and argument.
THE LAW
5. For several reasons, the procedure by which Mr. CLIENT was indicted for this crime violated his constitutional and statutory rights.
A. THE SATURATION PUBLICITY SURROUNDING HIS CASE PRECLUDED MR. CLIENT FROM RECEIVING FAIR TREATMENT AT THE HANDS OF THE GRAND JURY.

6. The Fourteenth Amendment's due process clause safeguards a defendant's Sixth Amendment right to "a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722; 81 S. Ct. 1639; 6 L. Ed. 2d 751 (1961); Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963); Coleman v. Zant, 708 F.2d 541 (11th Cir. 1983) (Coleman I); Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985), cert. denied, 90 L. Ed. 2d 730 (1986) (Coleman II); Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980), cert. denied, 451 U.S. 913 (1981); Ross v. Hopper, 716 F.2d 1528, 1541 (11th Cir. 1983), modified in other respects, 756 F.2d 1483 (11th Cir. 1985) (en banc), remanded on other grounds, 785 F.2d 1467 (11th Cir. 1986); Pamplin v. Mason, 364 F.2d 1, 4-5 (5th Cir. 1966).
7. In Irvin v. Dowd, the Supreme Court vacated a conviction and sentence of death because of pretrial publicity and community attitudes. The Court found the "then current community pattern of thought as indicated by the popular news media" to establish a clear and convincing "build-up of prejudice." 366 U.S. at 725. Although each juror in Irvin indicated that he could render an impartial verdict during a voir dire procedure which took four weeks to complete, id. at 720, 724, the Supreme Court nevertheless concluded:
Where one's life is at stake -- and accounting for the frailties of human nature -- we can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards.

Id. at 727-28. The Louisiana Supreme Court has in several recent cases reaffirmed this principle that strong measures must be taken to preserve the right to an impartial venire, particularly in a capital case. See, e.g., State v. David, 425 So. 2d 1241 (La. 1983); State v. Willie, 410 So. 2d 1019 (La. 1982); State v. Baldwin, 388 So. 2d 664, 670 (La. 1980) (whether "there was such prejudice in the collective mind of the community that a fair trial was impossible") (citing La. Code. Crim. Pro. art. 622). These fundamental principles pass over into the realm of the Grand Jury also.
8. In this State and throughout the country, the Grand Jury has two principle functions. First, it bears the weighty responsibility of investigating crime and determining whether there is probable cause to believe that a crime has been committed. United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). The second, and historically central, task of the Grand Jury is to "serve the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or dictated by an intimidating power or by malice and personal ill will." Wood v. Georgia, 370 U.S. 375, 390, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962).
9. As the court noted in United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972):
When the Framers of the Bill of Rights directed in the Fifth Amendment that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of Grand Jury," they were not engaging in mere verbal exercise.

Id. at 1136. Indeed, unless the Framers were wasting their time in inserting the Fifth Amendment into the Constitution--and our State's Framers were merely expending ink and paper in placing a similar provision in the Louisiana Constitution--the right to the protective shield of a Grand Jury must mean something:
If constitutional rights are to be anything more than pious pronouncements, then some measurable consequence must be attached to their violation. It would be intolerable if the [constitutional] guarantee . . . could be violated without practical consequence.

Oaks, Studying the Exclusionary Rules in Search and Seizure, 37 U. Chi. L. Rev. 665, 756 (1970).
10. For many years, it has been clear that a defendant will be indicted only upon the determination of an impartial investigative body "acting independently of [both the] prosecuting attorney [and the] judge." Stirone v. United States, 361 U.S. 212, 218-19, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960). Indeed, in order to be valid, it is important that "[a]n indictment [is] returned by a legally constituted and unbiased grand jury. . . ." United States v. Ciambrone, 601 F.2d 616, 623 (2d Cir. 1979) (emphasis supplied) (quoting Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 100 L. Ed. 397 (1956)).
11. In this case, the Grand Jury was precluded from impartially carrying out its responsibilities because the Grand Jury members were never told that they should not sit if they were predisposed towards one outcome or another, because various jurors actually were predisposed against Mr. CLIENT, and because those jurors made this known to the others and thereby tainted them.
B. THE IMPROPER MANNER IN WHICH THE GRAND JURY WAS SELECTED VIOLATED MR. CLIENT'S CONSTITUTIONAL RIGHTS.

12. Next, the Grand Jury was selected in a manner fraught with the probability of illegitimacy, and yet no record was made of the process such that Mr. CLIENT and an appellate court may review the lower court proceedings. The accused in a capital case has the right to indictment by a Grand Jury in the State of Louisiana. This right creates legal expectations, the deprivation of which violates due process of law. Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227, 65 L. Ed. 2d 175 (1980). In Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), the United States Supreme Court held that a basic function of a constitutional death penalty statute is to "make rationally reviewable the process for imposing a sentence of death." Id., 428 U.S. at 303. The Court stressed the qualitative difference between a sentence of death and any other penalty, and the need for effective appellate review. Id.; see also, Gregg v. Georgia, 428 U.S. 153, 206, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
13. The same requirement was inserted in our own death penalty statute to assure its constitutionality. The Louisiana Supreme Court must review the sentence. See La. Code. Crim. Pro. art. 905.9 et seq. Only thorough review will "ensure that 'this unique penalty [is not] wantonly and . . . freakishly imposed," Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 2763, 33 L. Ed. 2d 346 (1972); Jurek v. Texas, 428 U.S. 262, 276, 96 S. Ct. 2950, 2958, 49 L. Ed. 2d 929 (1976).
14. It is difficult to see how any appellate court is meant to review the Grand Jury proceedings for irregularities. If this Court were to pick a traverse jury in the seemingly haphazard manner in which the Grand Jury was selected in this case, and preserve no record of it, the reviewing courts would not bother to write an opinion on the case, but reverse the conviction from the bench. No record has apparently been made of the manner in which jurors were excused, or the reasons for their exclusion. It is impossible for an appellate court to tell, therefore, what was and what was not done.
C. THE "SHODDY GOODS" PLACED BEFORE THE GRAND JURY WITHOUT ADEQUATE EXPLANATION VIOLATED THE MOST FUNDAMENTAL PRINCIPLES WHICH GOVERN THE INDICTMENT PROCESS.

15. The indictment is predicated upon matters, facts, and things illegally and improperly obtained and presented to the grand jury, in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and of the Louisiana Constitution. See, e.g., United States v. Basurto, 497 F.2d 781 (9th Cir. 1974); United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972).
16. The courts have long recognized that:
"a grand jury . . . ought to be thoroughly persuaded of the truth on an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities." For an indictment to be issued under this jurisdiction, the grand jury must be persuaded that there is probable cause to believe the party is guilty.

Beckham v. O'Brien, 176 Ga.App. 518, 336 S.E.2d 375, 377 (1985) (quoting Beavers v. Henkel, 194 U.S. 73, 24 S. Ct. 605, 48 L. Ed. 882 (1904)).
17. In this context, the use of hearsay evidence before the Grand Jury, absent clear instructions on its dubious quality, is very dangerous. It is very important "that the prosecutor does not deceive grand jurors as to 'the shoddy merchandise they are getting so they can seek something better if they wish. . . .'" United States v. Estepa, 471 F.2d 1132, 1137 (2nd Cir. 1972) (quoting United States v. Leibowitz, 420 F.2d 39, 42 (2d Cir. 1969)). The Estepa court ordered the indictment dismissed because the prosecutor used hearsay to mislead the jury. Id., 471 F.2d at 1137. The consideration of hearsay evidence in this case also frustrated, rather than promoted, the search for truth. The court went on to state in no uncertain terms that the prosecution should not use "shoddy goods" merely as a matter of convenience:
We have previously condemned the casual attitude with respect to the presentation of evidence to a grand jury manifested by the decision of the [prosecuting] Attorney to rely on the testimony of the law enforcement officer who knew least, rather than subject the other officers, or himself, to some minor inconvenience, United States v. Arcuri, 405 F.2d 691, 692 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S. Ct. 1760, 23 L. Ed. 2d 227 (1969), even if the motivation was merely this rather than the more sinister reason suggested in United States v. Borelli, 336 F.2d 376, 391-92 (2d Cir. 1964), cert. denied sub nom. Mogavero v. United States, 379 U.S. 960, 85 S. Ct. 647, 13 L. Ed. 2d 555 (1965). . . .

Id. at 1135.
18. Under certain circumstances, hearsay evidence may be received "by a grand jury only 'if the court determines that it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing, and if the witness furnishes information bearing on the informant's reliability and, as far as possible, the means by which the information was obtained. . . .'" Id. at 1136 (quoting American Law Institute, Model Code of Arraignment Procedure Sections 330.4(4), 340.5 (1972)); see also American Bar Association, Standards Relating to the Prosecution Function Section 3.6 (1971). Certainly, the rules against the misleading use of "shoddy goods" which find expression in Estepa make it clear that:
the grand jury must not be "misled into thinking it is getting eye-witness testimony from the agent whereas it is actually being given an account whose hearsay nature is concealed. . . ."

Id. at 1136 (quoting United States v. Leibowitz, 420 F.2d 39, 42 (2d Cir. 1969)).
19. The reliability of the Grand Jury process was also compromised by the failure of the trial court "to furnish it with controlling legal principles." United States v. Ciambrone, 601 F.2d at 622. It is well-settled that "a defendant is entitled to . . . have the issues submitted to the jury with careful instructions." 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 (2d Cir. 1976); 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). The trial court in this State has an absolute obligation to assure that lay people who come in to serve on grand and petit juries are properly instructed.
20. It is clear that if a jury is not given a limiting instruction, there is no curing the obvious prejudice of matters such as the prior convictions or the hearsay nature of the evidence--even accepting the dubious proposition that an instruction could cure such prejudice. It is inconceivable that the Grand Jury should not be instructed to consider the prior convictions only insofar as they applied to the habitual offender count. See, e.g., Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967) (confusion of habitual offender use of prior convictions with guilt of accused unconstitutional absent careful limiting instructions). Similarly, as Estepa makes clear, the jury must be clearly instructed each time they are confronted with beguiling but unreliable second-hand evidence. Since this was apparently not done, the indictment must be quashed.
D. MISCONDUCT IN THE MANNER IN WHICH THE EVIDENCE WAS PRESENTED TO THE GRAND JURY FATALLY TAINTED ANY RESULTING INDICTMENT.

21. Where misconduct serves to destroy a Grand Jury's independence and objectivity, and has resulted in prejudice to the defendant, courts have ordered dismissal of the indictment. See Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); Ballard v. United States, 329 U.S. 187, 67 S. Ct. 261, 91 L. Ed. 181 (1946). Courts have not hesitated to dismiss indictments where the prosecutor has asked questions, or made comments about irrelevant or prejudicial matters which may have an inflammatory influence over the Grand Jury. For example, in United States v. Hogan, 712 F.2d 757 (2d Cir. 1983), the prosecuting attorney made numerous speculative references to other unrelated crimes of which the defendant was suspected, as well as characterizing the accused as a "real hoodlum." The court ruled that such conduct resulted in a serious impairment of the Grand Jury's partiality and ordered that the indictment be dismissed. The court concluded that:
. . . the incidents related are flagrant and unconscionable. Taking advantage of his special position of trust, the [prosecutor] impaired the grand jury's integrity as an independent body.

Id., 712 F.2d at 762 [footnote omitted].
22. It is difficult to determine precisely what the prosecutor did say in this case, since the Grand Jury was held ex parte and the state failed to preserve a record of it. However, this District Attorney has a predilection for emotional presentations to juries. See, generally, Motion to Prohibit Prosecutorial Misconduct. Because he has sole access to the evidence, the prosecutor must bear the burden of proof on this issue.
23. This poisoned the jury's impartial consideration as well. By injecting extraneous information, and allowing others to contaminate the Grand Jury further, the prosecution belittles the juror's sense of objectivity and responsibility and instills a presumption of guilt in the their minds. As in the Hogan case, the prosecutor diverted the jurors from their legitimate task. See also United States v. Serubo, 604 F.2d 807 (3rd Cir. 1979); United States v. Ciambrone, 601 F.2d 616 (2nd Cir. 1979); United States v. Basurto, 497 F.2d 781 (9th Cir. 1974); United States v. Estepa, 471 F.2d 1132 (2nd Cir. 1972).
24. Conversely, in the ex parte proceedings before the Grand Jury, the prosecutor failed to apprise the jury of the exculpatory materials which would contradict the prosecution case against Mr. CLIENT. The law is quite clear on this duty of fairness:
In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse

Louisiana R. Prof. Conduct 3.3(d). This misconduct also violates the prosecutor's duty to refrain from attempting to unfairly influence the jurors. State v. Good, 460 P.2d 662 (Ariz. App. 1969); State v. Joao, 491 P.2d 1089 (Haw. 1971). In Good, the prosecutor informed the grand jury that "if I were the grand jury . . . . I would indict [the defendant]." Id., 460 P.2d at 665. The court quashed the indictment, finding that such remarks violated the defendant's right to due process and destroyed any possibility of a fair grand jury proceeding.
25. In addition, on information and belief, the District Attorney recommended to the grand jury that they target the defendant in this case. See Necaise v. Logan, 341 So. 2d 91 (Miss. 1976). For this additional reason, the resulting indictment was accordingly the product of a fundamentally unfair and arbitrary process.
E. THIS COURT MUST DISMISS THE INDICTMENT AGAINST MR. CLIENT

26. The courts routinely dismiss indictments where abuse of the accused's rights emasculates the fairness of the process and compromises the integrity of the independent grand jury. This course of action is mandatory, even though the costs of reindictment are not insubstantial:
At a minimum, the government will be required to present its evidence to a grand jury unaffected by bias or prejudice. But the costs of continued unchecked prosecutorial misconduct are also substantial. This is particularly so before the grand jury, where the prosecutor operates without the check of a judge or a trained legal adversary, and virtually immune from public scrutiny. The prosecutor's abuse of his special relationship to the grand jury poses an enormous risk to defendants as well. For while in theory a trial provides the defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great, and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligation of the judiciary to protect against even the appearance of unfairness, are correspondingly heightened.

United States v. Serubo, 604 F.2d 807, 817 (3rd Cir. 1979).
27. This court, in applying the principles outlined above, and pursuant to its supervisory powers, should grant the requested relief. Courts have recognized the necessity to exercise such authority to curb prosecutorial misconduct. See e.g., People v. Rodgers, 92 Ill. 2d 283, 442 N.E.2d 240 (1982); Robert Hawthorne, Inc., v. County Investigating Grand Jury, 488 Pa. 373, 412 A.2d 556 (1980). For example, in People v. Linzy, 78 Ill. 2d 106, 398 N.E.2d 1 (1979), the Supreme Court of Illinois held that the trial court had jurisdiction, by virtue of its inherent supervisory powers, to order and examine transcripts of grand jury proceedings to determine if the prosecutor had acted improperly.
28. In light of the various faults with the grand jury process in this case, there are compelling arguments for dismissal of the indictment. It is well established the court's supervisory powers serve not only to protect the rights of the defendant, but also to deter prosecutors from engaging in conduct which may be detrimental to the judicial process. See United States v. Hastings, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). With the wide degree of latitude and control that prosecutors enjoy concerning grand jury proceedings, it stands to reason that courts must be able to employ enforceable means to insure that the prosecutor remains within the bounds of acceptable standards of prosecutorial conduct.
WHEREFORE, for the reasons set forth above, and for others that become apparent after an evidentiary hearing on this matter, Mr. CLIENT moves the Court for an order directing dismissal of the indictment in this matter for the reasons set forth above, as well as for the reasons which will appear from the hearing.
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