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 QUASH INDICTMENT AND
CHALLENGE TO COMPOSITION OF GRAND AND TRAVERSE JURY POOLS

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, Section 16 of the Louisiana Constitution of 1974 and La. Code Crim. Proc. arts. 408, 409, and 419 to quash the indictment and order reconstitution of the Grand and Traverse jury pools. In support of his motion, Mr. CLIENT states as follows:
1. Mr. CLIENT is an [indigent black man, currently unemployed, currently single,] who is charged with a crime which allegedly occurred in this Parish. [At the time the crime took place, Mr. CLIENT--who is from Chicago--was not living in this Parish, but he allegedly came into the Parish from outside.] Mr. CLIENT has a right to Equal Protection of the laws, and to a representative jury selected from a fair cross section of the population, guaranteed by the Sixth, Eighth and Fourteenth amendments. See, e.g., Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (U.S. Cal. 1946); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966); Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975); Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). Abrogation of this right would require reversal of any conviction or sentence of death.
2. The importance of a fairly-selected jury is magnified in capital cases, with the additional impact of the Eighth Amendment, where juries are required to consider "as a mitigating factor, any aspect of a 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." Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973, 990 (1978) (emphasis in original). The collective "moral, factual and legal judgment[s] of . . . juries . . . play a meaningful role in the sentencing," Barclay v. Florida, 463 U.S. 939, 950, 103 S. Ct. 3418, 3425, 77 L. Ed. 2d 1134, 1144 (1983), during which myriad factors are considered and weighed in reaching the decision of whether death is an appropriate punishment. See also Gibson v. Zant, 705 F.2d 1543 (11th Cir. 1983). The jury pools in this Parish do not provide Grand or Petit juries which meet these high constitutional standards.
I. THE EXCLUDED GROUPS.
1. It is apparent from the available records that there is an unconstitutional underrepresentation of various cognizable social groups from both the Grand and Traverse jury pools. In fully presenting his case on this subject, however, Mr. CLIENT will require the assistance of demographic and statistical experts to whom he currently does not have access. His allegations in this motion--while sufficient to meet the requirement of showing a prima facie case of discrimination, and shifting the burden of proof to the prosecution--should be viewed in light of his current lack of access to funds for the expert assistance he needs.
A. Underrepresentation of Black Persons.
1. The evidence will show that there is at least a [number] % comparative disparity in the number of blacks in the jury pool. In a parish such as this, where the percentage of blacks in the jury pool is less than [five] percent, application of comparative disparity analysis should be applied, since application of absolute disparity analysis would be perverse, and total exclusion of blacks might seem acceptable. Comparative disparity analysis, which factors in the size of the group, has been employed by many courts in cases where a particular cognizable social group accounts for a small percentage of the total jury-eligible population. See, e.g., Quadra v. Superior Court, 403 F. Supp. 486 (N.D. Cal. 1975); see also Alexander v. Louisiana, 405 U.S. 625, 629-30, 92 S. Ct. 1221, 1224-25, 31 L. Ed. 2d 536, 541 (1972); United States v. Goff, 509 F.2d 825, 826 & n.3 (5th Cir.), cert. denied, 423 U.S. 857, 96 S. Ct. 109, 46 L. Ed. 2d 83 (1975); Stephens v. Cox, 449 F.2d 657, 659 (4th Cir. 1971); Ford v. Hollowell, 385 F. Supp. 1392, 1398 (N.D. Miss. 1974); Cochran v. State, 260 S.E.2d 391 (Ga. 1979). This underrepresentation of blacks in itself demonstrates that Mr. CLIENT's jury is unconstitutionally composed.
B. Underrepresentation of Young People.
1. The evidence will further show that people between the ages of 18 and 30 are significantly underrepresented in the jury pool. There is an absolute disparity of approximately [number] %, and a comparative disparity of [number] %, in the number of eligible 18 to 30 year olds in the jury pool. This group constitutes a cognizable social group, with several identifiable characteristics which render it cognizable.
2. It is clear that an age group can be a cognizable social class. See, e.g., Willis v. Zant, 720 F.2d 1212, 1216 (11th Cir. 1983); Parks v. State, 254 Ga. 405, 330 S.E.2d 686 (1985). Mr. CLIENT will prove at an evidentiary hearing that members of this class have differing attitudes to those who are older than 30--attitudes which would generally be sympathetic with the predicament of a [20]-year old youth such as Mr. CLIENT.
C. Unemployed Persons.
1. There is also an absolute disparity of upwards of [number] % for unemployed persons, with the comparative disparity being over [number] %. Unemployed persons constitute a cognizable social group, with individual, identifiable characteristics. Indeed, in a leading case in the area of jury representativeness, Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946), the United States Supreme Court held that members of a specific occupational category may constitute a cognizable social group. This holding has since been applied in Louisiana. Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966).
2. Again, the absolute disparity between the percentage of the total eligible population comprised by unemployed persons and the percentage they comprise of the jury pool exceeds ten percent, which has been held to be significant. Furthermore, since almost all these persons are excluded from the pool, the comparative disparity of [number] percent is in itself significant, since there is virtually no chance that an unemployed person would appear in the venire from which Mr. CLIENT's jury will be selected. Finally, this is a class of persons uniquely sympathetic to Mr. CLIENT's dilemma, since Mr. CLIENT is himself unemployed.
D. Single Persons.
1. The jury pool seriously underrepresents single people. The study conducted with a random sample of the jury pool reveals that single persons are [number] % of the population, but only [number] % of the jury pool--an absolute disparity of [number] %, and a comparative disparity of [number] %. These disparities are clearly significant.
2. Single people are obviously important to Mr. CLIENT's case. [This is a prosecution for the murder and rape of a young daughter.] Parents are more likely to be horrified by this kind of crime. Single people are generally less attached to the community, and are therefore less protective of what they may view as a threat to the community in which they live. Single people are also generally less conservative than married people. In this parish, single people constitute a valid class for purposes of a jury composition challenge.
E. Transients/Recent Migrants.
1. Transients, people who have moved into the county within the last five years, are also a cognizable social group. [number] % of the population is made up of recent migrants, while only [number] % of the jury pool is. This is an absolute disparity of [number] %, and a comparative disparity of [number] percent, representing a significant disparity. Because Mr. CLIENT is himself not attached to this county, jurors with a similar perspective on life should not be excluded from the jury pool.
II. THE LAW.
1. These statistics indicate that at least these different cognizable social groups are significantly underrepresented in the jury pool from which the jury will be selected. At an evidentiary hearing on this matter--especially if Mr. CLIENT receives the funds which he requires for adequate development of the facts--Mr. CLIENT will prove discrimination in the exclusion of these, and possibly other, cognizable legal groups from his jury pool. It should be reiterated that Mr. CLIENT has standing to assert the Sixth, Eighth and Fourteenth Amendment claims whether he is a member of the excluded class or not. Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975) (male makes Sixth Amendment fair representation challenge to exclusion of women); Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972) (white male makes Equal Protection challenge to exclusion of blacks).
2. The Supreme Court long since laid down the principle that "[j]ury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690, 703 (l975). In Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977), the Supreme Court summarized the requirements for proving an equal protection violation under the Fourteenth Amendment:
The first step is to establish that the group is one that is a recognizable, distinct class, . . . Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as . . . jurors, over a significant period of time. . . . Finally, . . . a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.

Id. at 494, 97 S. Ct. at 1280, 51 L. Ed. 2d at 510-11.
3. In Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), the elements of a prima facie violation of the fair cross-section requirement of the Sixth Amendment were set out: [T]he defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

Id. at 364, 99 S. Ct. at 668, 58 L. Ed. 2d at 587.

4. Although there are no precise mathematical standards for determining what constitutes a significant underrepresentation, Alexander v. Louisiana, 405 U.S. 625, 630, 92 S. Ct. 1221, 1225, 31 L. Ed. 2d 536, 541 (1972), the courts have held that certain disparities between the composition of the jury pool and the county population are sufficiently significant to show a prima facie case of unconstitutional underrepresentation. See, e.g., Alexander v. Louisiana; Jones v. Georgia, 389 U.S. 24, 88 S. Ct. 4, 19 L. Ed. 2d 25 (1967); United States v. Facchiano, 500 F. Supp. 896 (S.D.Fla. 1980). The United States Supreme Court has also laid out two factors--numerical size, Duren v. Missouri, 439 U.S. at 364, 99 S. Ct. at 668, 58 L. Ed. 2d at 587, and distinctive characteristics, Taylor v. Louisiana, 419 U.S. at 531, 95 S. Ct. at 698, 42 L. Ed. 2d at 698-99--which should be weighed in considering the legal cognizability of an excluded social group. Mr. CLIENT is prepared to show that each of the groups identified above meet this standard.
5. Under either the Sixth or the Fourteenth Amendment claim, Mr. CLIENT will therefore establish a prima facie case of the unconstitutionality of the jury pools. Although the claims are similar, the two analyses differ in the way the State may seek to rebut a prima facie case of either. Proof of the denial of equal protection may be rebutted by the State only by proving an absence of discriminatory intent. Castaneda v. Partida, 430 U.S. at 497-98, 97 S. Ct. at 1282, 51 L. Ed. 2d at 512. Proof that the defendant has been denied a fair cross-section of the community only may be rebutted by the State proving at least a significant--indeed, given the fundamental nature of this right, the more appropriate standard is "compelling," Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972)--governmental interest which justifies the imbalance, Duren v. Missouri, 439 U.S. at 367-68, 99 S. Ct. at 670, 58 L. Ed. 2d at 589-90, and which does not threaten the fair cross section quality of the jury pool. Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975); see Machetti v. Linahan, 679 F.2d 236, 241 n.6 (11th Cir. 1982), cert. denied, 459 U.S. 1127, 103 S. Ct. 763, 74 L. Ed. 2d 978 (1983); United States v. Perez-Hernandez, 672 F.2d 1380, 1384 n.5 (11th Cir. 1982); Gibson v. Zant, 705 F.2d 1543, 1546 n.4 (11th Cir. 1983).
6. As will become clear at a hearing on this matter, the state cannot prove lack of intent to exclude the class, Castaneda, or a "significant" or a "compelling" state interest to justify the exclusion. Thus Mr. CLIENT will demonstrate a violation of his constitutional rights. [Mr. CLIENT is also prepared to show that it would be simple for the computerized Parish system to be modified to include other lists which would improve the currently unrepresentative jury list.]
WHEREFORE, For the above reasons and for such reasons as will appear at the hearing on this matter, Mr. CLIENT respectfully requests that the indictment against him be quashed and that the pool from which the traverse jury is to be picked be reconstituted in a manner consistent with his constitutional rights.
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