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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NOTICE OF INTENT TO INTRODUCE CO-INDICTEES' SENTENCES

COMES NOW, JOHN CLIENT, by counsel, and gives this Court notice pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, and other law set out below, of his intention to introduce evidence of the other co-indictees' sentences on these charges, should there be a penalty phase in this case. In support of his motion, Mr. CLIENT states as follows:

1. Since this is to be a cap77ital 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).
2. "[A]n essential component of procedural fairness is an opportunity to be heard. That opportunity would be an empty one is the state were permitted to exclude competent, reliable evidence. . . . In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and 'survive the crucible of meaningful adversarial testing.'" State v. Weiland, 505 So. 2d 702, 706 (La. 1987) (citations omitted).
3. This principle is all the more important in a capital case, since there is a broad scope of evidence admitted in mitigation under the Eighth Amendment. 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)). This right has been evolving over recent years, and recently the Supreme Court has held that "[s]pecial precaution should be taken in capital cases to allow all relevant mitigating evidence before the jury, to give the defendant 'a meaningful opportunity to present a complete defense,' a right guaranteed by the [United States] Constitution." State v. Lee, 559 So. 2d 1310, 1319 (La. 1990) (citations omitted); State ex rel. Busby v. Butler, 538 So. 2d 164, 172 (La. 1988) ("The defendant has the right to introduce virtually any evidence in mitigation at the penalty phase").1
4. Even where state rules might normally allow the exclusion of evidence, then, it may not be excluded at the sentencing phase. For example, the United States Supreme Court has held that hearsay rules cannot be applied in a capital case against the accused to exclude reliable evidence that might act in mitigation of sentence. Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (1979) (confession by co-defendant must be admitted at the penalty phase).
5. In Louisiana it has not been clear over the years whether the sentences in co-indictees' cases are admissible in capital sentencing proceedings. Cf. State v. Sawyer, 422 So. 2d 95, 105 (La. 1982) (noting that defense counsel made a "beyond-the-record comment that [co-defendant] Lane was sentenced to life (a fact not previously revealed to the jury"). More recently, it has become clear that the United States Supreme Court will not allow the exclusion of this evidence. First, the United States Congress enacted the Anti-Drug Abuse Act of 1988, which allowed for a federal death penalty, and specifically included as a mitigating circumstance the fact that co-indictees received a sentence less than death. Then in Parker v. Dugger, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991), the Supreme Court held: "There is no question that Parker presented [non-statutory mitigating] evidence. * * * At the sentencing hearing, Parker's attorney emphasized to the jury that none of Parker's accomplices received a death sentence for the . . . murder. . . ." Id. 112 L. Ed. 2d at 822; accord Ex parte (Curtis Lee) Henderson, 616 So. 2d 348, No. 1900152 (Ala. 1992); see also Messer v. State, 330 So. 2d 137 (Fla. 1976) (co-defendant's lenient plea agreement); Messer v. State, 403 So. 2d 341 (Fla. 1981) (same); Herzog v. State, 439 So. 2d 1372 (Fla. 1983) (same); Bassett v. State, 449 So. 2d 803 (Fla. 1984) (same); State v. Irwin, 282 S.E.2d 439 (N.C. 1981) (same).
WHEREFORE Mr. CLIENT gives notice of his intent to introduce his co-indictees' sentences in mitigation should there be a penalty phase in this case.
1. The scope of these circumstances is very broad and almost anything can be offered in mitigation. See State v. Sonnier, 380 So. 2d 1, 8-9 (La. 1980) (mitigating circumstances included the fact that he was "of excitable disposition with little education"; who had "been arrested only once and . . . never been sentenced to jail"; "acting under his brother's influence when he participated in the crimes"; "the small role played by Eddie Sonnier in the murders"; "evidence that he attempted to withdraw from the enterprise"); State v. Kyles, 513 So. 2d 265, 274 (La. 1987) ("defendant contributed to the support of the family until his arrest"; "[h]is age and lack of significant prior history of criminal history"; "low average range of intellectual functioning, with a composite IQ score of 83"); State v. Lee, 524 So. 2d 1176, 1187 (La. 1988) ("his excellent military record, and the many stress factors he was experiencing at the time of the killing"); State v. Lindsey, 543 So. 2d 886, 905 (La. 1989) ("mental defect (i.e. mental retardation)"); State v. Sullivan, 596 So. 2d 177, 191 (La. 1992) ("raised in an abusive, alcoholic, often brutal environment"; "Sullivan's turbulent childhood"; family "would have told the jury they loved him and pleaded with the jury to spare his life"; "existence of mental illness"); State ex rel. Busby v. Butler, 538 So. 2d 164, 170 (La. 1988) ("[m]embers of Busby's family . . . would have pled with the jury to spare petitioner's life"); State v. Weiland, 505 So. 2d 702, 709 (La. 1987) ("defendant . . . shoed immediate remorse and attempted suicide").
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