71isvd

LOUISIANA PUBLIC DEFENDER BOARD

_______________________________________

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 FOR INDIVIDUAL SEQUESTERED VOIR DIRE

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 hold individual, sequestered voir dire in this case. In support of his motion, Mr. Client states as follows:
A. THE FACTS REQUIRING INDIVIDUAL, SEQUESTERED VOIR DIRE.
1. This case is unique in several ways, each of which mandates the use of some individual, sequestered voir dire. For example:
> Child abuse: This case will include very sensitive matters of child abuse, insofar as Mr. Client is accused of being a molester of children. Clearly, it will be critically important to assess the views of jurors on this topic.
> The Scarlet Letter law: Mr. Client's prosecution has precipitated the Orwellian 1984-type law that requires convicted Child Molesters to report to the police when coming into a town. Again, this creates an imperative that the issue be explored during individual, sequestered voir dire.
> Prior convictions: It has been highly publicized that Mr. Client has prior convictions for child molestation. Obviously knowledge of this would require disqualification of a juror. Equally obviously, should one juror state this knowledge in front of the others, the entire panel will be tainted.
> Confession: Where jurors have read the news reports that have included Mr. Client's alleged involvement in the discovery of the child's body in this case, or that he has admitted the crime, this will emasculate the presumption of innocence. Again, this must be explored on voir dire.
> Parole: Endless news reports stated that Mr. Client was on probation or parole, and this must be explored on voir dire. This will impinge upon the fact that most jurors in Peine De Mort Parish believe that life without parole does not actually mean life without parole. Since Mr. Client has the right to jurors who will accept the law, and the fact that life without parole means just that, this must be explored in individual, sequestered voir dire.
> The Death Penalty: The voir dire on the death penalty in this sensitive case must be conducted individually, since Mr. Client must explore various mitigating circumstances surrounding child abuse. For some to express a forceful opinion that Mr. Client's own background should not be mitigating will be very damaging.
> Other sensitive matters: Mr. Client will also have to deal with other sensitive matters during voir dire, including but not limited to--the prosecution's potential abuse of gruesome photographs, jurors' racial attitudes, their attitudes towards drugs and alcohol, and so forth.
B. THE LEGAL REQUIREMENT THAT VOIR DIRE BE THOROUGH
ENOUGH TO EXPOSE POTENTIAL JUROR PREJUDICE.

1. In the sections below, Mr. Client first discusses the general statutory and constitutional right to a voir dire process which will effectively weed out prejudice against him, and allow his counsel to use his peremptory challenges to best effect. Mr. Client then discusses the law, as applied to his case, which guarantees him the right to a sweeping and thorough voir dire on certain sensitive issues which cannot, be definition, be probed in the collective setting.
2. Under the Louisiana Constitution, Mr. Client has "a right to full voir dire examination of prospective jurors." La. Const., Art. 1, Paragraph 17; see also State v. Dixon, 365 So. 2d 1310 (La. 1978) (right to full voir dire includes right to "hear[] and observ[e] veniremen directly and as individuals"); State v. James, 431 So. 2d 399, 403 (La. 1983) ("An accused in Louisiana is guaranteed the right to 'full voir dire examination of prospective jurors") (quoting La. Const. Art. I, Section 17; La. C. Cr. Pro. art. 786); State v. Brumley, 320 So. 2d 129 (La. 1975) (reversible error for trial court to prevent defense counsel from asking potential jurors about the age, background and mental capacity of accused); State v. Frith, 412 So. 2d 1000, 1004 (La. 1982) (trial court must "afford[] the Defendant wide latitude in his examination of prospective jurors"); State v. Hayes, 364 So. 2d 923 (La. 1978); State v. Boen, 362 So. 2d 519 (La. 1978); State v. Holmes, 347 So. 2d 221 (La. 1977); State v. Hills, 241 La. 345, 129 So. 2d 12 (1960).
3. Pertinent inquiries should be allowed if they can possibly show grounds for a challenge for cause or if they will enable counsel to make intelligent use of peremptory challenges. State v. Hayes, 364 So. 2d 923 (La. 1978); State v. Frith, 412 So. 2d 1000, 1003 (La. 1982).
4. The scope of inquiry is best governed by a liberal discretion on the part of the Court so that if there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision, this may be uncovered. State v. Hills, 129 So. 2d at 31. Moreover, "[i]t is by examination into the attitudes and inclinations of jurors before they are sworn to try a case that litigants are enabled to reject those persons, by use of peremptory challenges where necessary, who are deemed to be unlikely to approach a decision in a detached and objective manner. . . ." Id. 129 So. 2d at 31; see also State v. Boen, 362 So. 2d 519 (La. 1978) (error to sustain objections to a series of questions about whether the jurors knew or talked to any law enforcement officers).
5. Turning to the up-coming voir dire in this case, during voir dire counsel intends to ask potential jurors about, inter alia, the following highly sensitive matters:
> Mr. Client has an absolute right to voir dire on jurors' knowledge of pretrial publicity concerning this case
6. One of the most obvious issues in terms of individual voir dire is the question of what people know about the case--it makes little sense to exclude jurors who know sensitive information by having them reveal it to everyone else. See State v. Goodson, 412 So. 2d 1077, 1081 (La. 1982) (dicta that where "there is a significant possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure shall take place outside the presence of other chosen and prospective jurors"); State v. Simon, 635 S.W.2d 498, 506 (Tenn. 1982), cert. denied, 459 U.S. 1055 (1982) ("individual examination of prospective jurors should be permitted outside the presence of other chosen and prospective jurors when the venire [members] have been exposed to potentially prejudicial material"); see generally, Kerr et al., On the Effectiveness of Voir Dire in Criminal Cases with Prejudicial Pretrial Publicity: An Empirical Study, 40 Am. U.L. Rev. 665 (1991) (collective voir dire not effective at controlling for the effects of prejudicial publicity).
> Mr. Client has an absolute right to voir dire on jurors' attitudes towards child molestation
7. There will be some jurors who will be very prejudiced against Mr. Client because he is accused of molesting and killing a child. This is another good example of an area of voir dire which is very sensitive and must be approached on an individual basis.
> Mr. Client has an absolute right to voir dire on attitudes towards the Death Penalty
8. Because this is a capital case, this Court is left with the difficult task of distinguishing between prospective jurors whose absolute opposition to capital punishment will not allow them to apply the law and jurors who, though opposed to capital punishment, will nevertheless not automatically vote against the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968); Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980).
9. In order to make the difficult determinations required by Witherspoon, it is essential that this Court has as much information as possible about each juror's attitude towards capital punishment. This information must also be available in order for counsel intelligently to exercise peremptory challenges. However, because of the often strong emotions connected with views on capital punishment, jurors may be reluctant to express their opinions on the issue in open court.
10. In Fuselier v. State, 468 So. 2d 45 (Miss. 1985), the Mississippi Supreme Court discussed the need for thorough voir dire on prospective jurors' attitudes towards the death penalty. It is not to be lightly assumed that conscientious citizens will ignore their oaths, and there must be
a clear showing that. . . ." Absent sufficient questioning to "fully develop . . . voir dire regarding [a juror] . . . her dismissal for cause [is] error.

Id. at 55. Because of the breadth of this rule, no juror may be excluded for cause without the defense having an opportunity to voir dire them extensively on whether they really would violate their oaths.
11. It is black letter law that to strike those who express hesitancy over imposing the death penalty without allowing the defense to voir dire them violates Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), and our own law. Indeed, Courts have previously held that the defense--as well as the prosecuting attorney--have an absolute right to voir dire on the issue of attitudes towards capital punishment. Even in a non-capital case, "[a]n accused's right to full voir dire examination includes the right to examine a prospective juror challenged for cause by the prosecution in order to demonstrate his or her impartiality." State v. Miller, 489 So. 2d 268, 271 (La. App. 4th Cir. 1986) (citing cases). Thus, "when a juror is challenged for cause because of his answers concerning the death penalty, the trial judge must give the defense counsel an opportunity to traverse that juror for rehabilitation." State v. David, 425 So. 2d 1241, 1250 (La. 1983); accord State v. Penns, 407 So. 2d 678 (La. 1981); Rougeau v. State, 651 S.W. 2d 739, 741 (Tex. Cr. App. 1982); O'Connell v. State, 480 So. 2d 1284 (Fla. 1985); State v. Owens, 284 S.E.2d 584, 586 (S.C. 1981); Munson v. State, 758 P. 2d 324, 331 (Okla. Crim. App. 1988).
12. In Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979), aff'd en banc, 626 F.2d 396 (5th Cir. 1980), the Fifth Circuit vacated a death sentence because the defense had not been permitted to voir dire a potential juror who had expressed opposition to the death penalty, and to explore the extent of her opposition to the death penalty:
Three times in succession [a prospective juror] affirmed that she "did not believe in" the death penalty. She then stated that the mandatory penalty of death or life imprisonment would "affect" her "deliberations on any issue of fact in the case." This is all. Defense counsel immediately stated he thought she should be asked further questions, but the court excused her without more, observing, "I don't know what you could ask." Unfortunately, perhaps, we do. She could have been asked whether, despite her expressed convictions, she could put her disbelief aside and do her duty as a citizen. Her answer might have been that she could. Or she could have been asked what effect the presence of a possible death penalty would have on her deliberations. Her answer might have been that she would wish to be very sure of guilt, to be thoroughly convinced, before she could find facts in such a way that the death penalty might result. Either answer would doubtless have rehabilitated her for jury service.Id., 592 F.2d at 1301 (emphasis in original).
13. Thus, without a probing defense voir dire on the issue of attitudes towards the death penalty, a juror will be "prematurely excused, with the showing required by Witherspoon for [his or] her dismissal incomplete. Since she was [prematurely excused, the] death sentence cannot be carried out." Id., 626 F.2d at 398; see also Gray v. Mississippi, 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987) (erroneous exclusion of one juror constitutional error).
14. The same holds true for voir dire regarding a juror's attitudes in favor of the death penalty. See Morgan v. Illinois, 504 U.S. ___, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992); Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988); Pope v. State, 256 Ga. 189, 345 S.E.2d 831 (1986); Patterson v. Commonwealth, 283 S.E.2d 212 (Va. 1981); Thomas v. State, 403 So. 2d 371 (Fla. 1981); Pierce v. State, 604 S.W. 2d 185 (Tex. Cr. App. 1980); Cuevas v. State, 575 S.W. 2d 543, 544-46 (Tex. Cr. App. 1978); Smith v. State, 573 S.W. 2d 763, 765-66 (Tex. Cr. App. 1977).
15. It has been routinely recognized by courts across the nation that voir dire on the issue of capital punishment should be conducted on an individual basis. The Mississippi Supreme Court has noted that "few attorneys have 'even a surface familiarity with the seemingly innumerable refinements [of capital law].'" Irving v. State, 441 So. 2d 846, 854 (Miss. 1983) (emphasis supplied). When jurors comes into the courtroom for voir dire, it may be their first real contact with the criminal justice system. When, a little while later, they are asked whether they are going to come through with the death penalty, it is a little much to expect an instantaneous answer.
16. Mr. Client stands ready to show that jurors at the first trial did not answer these questions fully and completely, and that his rights would be irrevocably compromised if he were not allowed to probe this sensitive area on an individual level. See Hovey v. People, 128 Cal. 3d 1, 616 P. 2d 1301, 1354-55 (1980) (even where no special showing has been made on the need for individual, sequestered voir dire, questioning on death penalty attitudes should be conducted individually).
> Mr. Client has an absolute right to voir dire on the racial attitudes of jurors
17. It is now clear, at least in the context of a capital case, that the accused has the right to voir dire jurors on the issue of racial prejudice. See, e.g., Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986); Ham v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973); Legare v. State, 256 Ga. 302, 348 S.E.2d 881 (1986); Mitchell v. State, 176 Ga. App. 32, 335 S.E.2d 150 (1985); Tucker v. State, 249 Ga. 323, 290 S.E.2d 97 (1982); Mize v. State, 206 S.E.2d 530, 532 (Ga. App. 1974).
18. As the Supreme Court has now repeatedly held, these rights apply equally to a case where the accused is white. See, e.g., Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990). Additionally, in this case, there may be racial overtones injected by prosecution witnesses. This makes it all the more important that Mr. Client explore this sensitive issue.
19. Witnesses and members of the defense team will also likely be African-American, or members of other minorities.
20. Voir dire on race is also particularly important in an area of the country such as this one where the prosecution has a long history of racial discrimination. Certainly the defense cannot be expected to ask questions in a collective setting such as,
-- Do you hold prejudiced views against black persons?
-- Do you think that black persons are morally inferior to white persons?
-- What, if any, effect would the fact that one of the defense lawyers/witnesses is black have on your assessment of this case?
-- What, if any, effect would the fact that the victim in this case was a white person have on your decision to impose the death penalty?
-- Do you believe that more, the same number, or fewer people are murdered each year in the black community than the white community?
-- If there is a conflict in the evidence in what the witnesses who are white testify and the witnesses who are black testify will this in any way affect your ability to serve in this case?
-- Do you live in an all-white neighborhood?
-- Do you have any friends who are black?1
21. For these reasons, then, individual voir dire must be allowed on issues of race.
> Mr. Client has an absolute right to voir dire on the issue of the gruesome photographs in this case
22. The prosecution will doubtless seek to introduce some horrible photographs. As Mr. Client will show if necessary at an evidentiary hearing on this issue, these photographs had an emotional and prejudicial effect on the jury's decision. The defense must ensure that either (a) the pictures are not used, or (b) the jurors are not of the type susceptible to this type of prejudice.
23. The issue of gruesome photographs is one of the most troubling in capital cases today. Too often, appellate courts are asked to rubber stamp the admission of truly revolting pictures, even though "[i]t is unrealistic to believe, even after a limited view, that the horror engendered by these slides could ever be erased from the minds of the jurors. . . ." Commonwealth v. Garrison, 331 A.2d 186, 188 (Pa. 1975).
24. The prosecution often seems to have a predilection for introducing autopsy photographs which make jurors vomit. This, in spite of the fact that "[c]ourts have been almost universal in their condemnation of admitting photographs depicting the victim's body after it has been subject to autopsy procedures." State v. Clawson, 270 S.E.2d 659, 671 (W.Va. 1980) (citing cases); accord McCullough v. State, 255 Ga. 672, 341 S.E.2d 706 (1986); People v. Coleman, 116 Ill. App. 3d 28, 71 Ill. Dec. 819, 451 N.E. 2d 973, 977 (1983); Brown v. State, 250 Ga. 862, 302 S.E.2d 347 (1983); Commonwealth v. Richmond, 358 N.E.2d 999, 1001 (Mass. 1976); State v. Childers, 217 Kan. 410, 536 P.2d 1349, 1354 (1975); People v. Burns, 241 P.2d 308, 318 (Cal. App. 1952); cf. Rosa v. State, 412 So. 2d 891, 892 (Fla. App. 3d Dist. 1982) (excluding photograph which "depicted the results of emergency procedures performed after the stabbing") (citing cases).
25. There is a strong argument that such photographs, as well as many other horrible color slides, are "not relevant and of no value to the jury, and should not . . . be admitted." Coleman v. State, 67 So. 2d 304, 305 (Miss. 1953) (citing cases); accord State v. Beers, 8 Ariz. App. 534, 448 P.2d 104 (1968); Bunting v. Commonwealth, 208 Va. 309, 157 S.E.2d 204, 208 (1967) (photograph "which has no tendency to prove [relevant facts], but only serves to prejudice an accused . . . excluded on the ground of lack of relevancy"); Commonwealth v. Chacko, 391 A.2d 999, 1001 (Pa. 1978) (invoking "essential evidentiary value" test for inflammatory photographs); Commonwealth v. Liddick, 370 A.2d 729, 731 (Pa. 1977); Commonwealth v. Rogers, 401 A.2d 329, 330 (Pa. 1979); State v. Polk, 164 N.J. Super. 457, 397 A.2d 330, 334 (1977); President v. State, 602 P.2d 222, 226 (Okla. Crim. App. 1979); People v. Garlick, 46 Ill. App. 3d 216, 4 Ill. Dec. 746, 360 N.E.2d 1121, 1126-27 (1977); Commonwealth v. Scaramuzzino, 317 A.2d 225, 226 (Pa. 1974).
26. Unless, however, the prosecution is going to agree not to use the horrible pictures which so prejudiced the jury last time this case was tried, Mr. Client has the right to show similar pictures to the jurors during voir dire to determine whether they would be able to view the evidence objectively, and not regurgitate over the juror sitting next to them.
> Mr. Client has an absolute right to voir dire on jurors' misapprehensions concerning the seriousness of a life sentence, or the probability that any death sentence imposed would be reversed by an appellate court
27. The notion of early parole is so ingrained in the average citizen that it requires a true optimist to assume that a juror will merely ignore the problem. For example, as may be found in the record on appeal in White v. State, 532 So. 2d 1207 (Miss. 1988), a study on jurors' attitudes would reveal the following results:
1) Are you in favor of Capital Punishment for Murder?
Yes: 74% No: 26%
2) If a person receives a life sentence for murder, how many years on average do you think he or she would spend in prison before being paroled?
5-10 years 65%
11-20 years 26%
Over 20 years 9%

3) In cases where you had to choose between giving a life sentence or the death penalty, would you be more or less likely to give a life sentence if you knew that the person would never be eligible for parole?
More: 65%
Same: 35%
Less: 0%

4) On the average, do you believe that when a person is given the death sentence he or she is executed?
Yes: 26% No: 74%
See, generally, Paduano & Stafford Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Hum. Rts. L. Rev. 211 (1987) (hereinafter cited as "Juror Misperceptions") (discussing the other surveys which have reached very similar conclusions). Similar surveys have been done in this state, and Mr. Client will demonstrate at a hearing that some jurors will not or cannot follow the law even when told that life imprisonment means life imprisonment without parole.
28. Obviously, if one juror blurts out that parole is available, Mr. Client's rights to a fair trial may be inherently prejudiced. State v. Willie, 410 So. 2d 1019, 1033 (La. 1982).
29. The same would be true were another prospective juror to say that any death sentence will be reversed on appeal. The Supreme Court held that "it is constitutionally impermissible to rest a death sentence on a determination by the sentencer that the responsibility for determining the appropriateness of the defendant's sentence rests elsewhere." Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231, 239 (1985). This kind of voir dire can only be done individually.
> Mr. Client has an absolute right to voir dire jurors on whether they are capable of respecting his assertion of his constitutional rights
30. Jurors often believe that the accused should "tell his side of the story." They concededly hold it against him if he stands on his Fifth Amendment privilege against self-incrimination.
31. Nothing could be more fundamental to a fair trial than that the accused has a Fifth Amendment right to remain silent. It is improper for any presumption to flow from the accused's assertion of this right. See, e.g., Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); United States v. Griggs, 735 F.2d 1318 (11th Cir. 1984); Williams v. State, 445 So. 2d 798 (Miss. 1984); Shirley v. State, 245 Ga. 616, 266 S.E.2d 218 (Ga. 1980); Marlow v. State, 152 Ga. App. 218, 262 S.E.2d 460 (Ga. App. 1979).
32. On a related issue, where a juror says that the "prosecution would be 'ahead of the game' at the beginning of the trial," he or she should be excluded in spite of reassurances of attempts to be fair if seated. State v. Brown, 496 So. 2d 261, 265 (La. 1986); see also State v. Copeland, 530 So. 2d 526, 535 (La. 1988) (error not to exclude juror who felt that the accused should prove his innocence). This is not something that should be blurted out before the other jurors.
33. Likewise, in State v. Sylvester, 400 So. 2d 640 (La. 1981), the Court reversed because a juror would not listen to the defense's theory of the case: "In view of [Venireperson] Miller's steadfast declaration that she could not accept the theory of self-defense because of her religious belief, we do not consider that she could render an impartial verdict according to the law and evidence." Id. at 645.
34. Again, these are not the kinds of issues that can be discussed en masse. Once a juror starts saying that no, he or she would believe that a person accused of a crime should testify, or no, he or she would not believe the defense, the entire jury will be tainted.
> Mr. Client has an absolute right to voir dire jurors as to whether they would be unwilling to give meaningful weight to evidence in mitigation
35. The fundamental premise of the recent Supreme Court case law involving capital sentencing proceedings is one heavily loaded in favor of admitting evidence in mitigation. The Supreme Court has therefore held that jurors "may not refuse to consider . . . 'any relevant mitigating evidence.'" Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347, 350 (1987) (emphasis supplied) (quoting Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986) (quoting, Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982))); see also, Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); Bell v. Ohio, 438 U.S. 637, 98 S. Ct. 2977, 57 L. Ed. 2d 1010 (1978); Mills v. Maryland, 486 U.S. ___, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988); Penry v. Lynaugh, 492 U.S. ___, 109 S. Ct. 256, 106 L. Ed. 2d 256 (1989); McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990).
(i) Voluntary intoxication.
36. One good example of this would be the mitigating effect of intoxication. It goes without saying that intoxication must constitutionally be a defense to a specific intent crime at some level. See, e.g., Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985). Certainly, it is a mitigating circumstance. See, e.g., Pentecost v. State, 545 So. 2d 861 (Fla. 1989); Amazon v. State, 487 So. 2d 8 (Fla. 1986); Norris v. State, 429 So. 2d 688 (Fla. 1983) (drug abuse problem and claimed to be intoxicated at time of crime proper for jury to consider); Huddleston v. State, 475 So. 2d 204 (Fla. 1985) (history of drug abuse).
37. Nevertheless, there are those who feel that intoxication is the "choice" of the individual, and therefore should not be mitigating. Others feel that intoxication is against the word of God, and therefore aggravating rather than mitigating.
38. On the other hand, people are not willing to discuss their own experiences with drugs and alcohol in a group setting, or even the problems which family members or friends have had.
39. For these reasons, a question "concerning a prospective juror's experience with children or students who had taken drugs" is an appropriate voir dire question. Ridgway v. State, 174 Ga. App. 663, 330 S.E.2d 916 (Ga. App. 1985). Indeed, where the accused's drug and alcohol abuse is a substantial factor at trial:
it has been held error . . . to refuse to allow defense counsel to ask: 'Have you or any member of your family ever been a victim of a drug transaction?' and 'Has any member of your family ever had any problems with drugs?'

Henderson v. State, 281 Ga. 398, 306 S.E.2d 645, 648 (Ga. 1983) (quoting Craig v. State, 165 Ga. App. 156, 299 S.E.2d 745 (Ga. App. 1983)); accord State v. Ball, 685 P. 2d 1055 (Utah 1984); State v. McKoy, 323 N.C. 1, 372 S.E.2d 12, 18-19 (N.C. 1988), rev'd on other grounds sub nom. McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990).
(ii) Mental illness.
40. The accused also has a constitutional right to voir dire jurors on their views concerning insanity or mental illness. See, e.g., Gonzalez v. State, 511 So. 2d 700 (Fla. DCA3 1987). It is possible that a juror might think that because the accused is mentally ill, he or she would be more dangerous in the future, and therefore should be executed with all expedition. However, the constitution absolutely forbids a juror from considering mental illness as anything but mitigating. See Zant v. Stephens, 462 U.S. 862, 884-85, 887 n.24, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
41. Again, a juror's mental illness, or the mental illness which may be present in the juror's family is not the sort of thing that many people are willing to discuss in the presence of a hundred of their peers. Obviously a voir dire format which does not uncover such attitudes should not be allowed.
(iii) Childhood abuse.
42. Any childhood abuse of the accused must be considered a mitigating factor. Holsworth v. State, 522 So. 2d 348, 354 (Fla. 1988); Herring v. State, 446 So. 2d 1049, 1057 (Fla. 1984), cert. denied, 469 U.S. 989, 105 S. Ct. 396, 83 L. Ed. 2d 330 (1984); Scott v. State, 411 So. 2d 866 (Fla. 1982)); People v. Morse, 36 Cal. 3d 134, 202 Cal. Rptr. 92, 679 P. 2d 1033 (1984); Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 71 L. Ed. 2d (1982).
43. In order to meaningfully choose jurors, as well as to weed out those who would not consider this in mitigation, it is obviously important to explore this issue on voir dire. However, no juror is going to happily respond in front of one hundred peers to questions concerning whether he or she was abused as a child, or whether he or she has ever abused a child. The only chance of ascertaining an honest answer to such questions is to ask the questions individually, in relative privacy.
(iv) Other factors in mitigation.
44. The examples set forth above are certainly not exhaustive. Furthermore, there are factors which must be considered in mitigation by the jury which the average juror would be prepared to discuss in public. Nevertheless, the potential for prejudice stemming from collective voir dire is rather high.
45. Take, for example, the question of Mr. Client's family's love for him. A juror might blurt out that he or she would not consider this mitigating. If the voir dire were sequestered, the trial court could explain that this factor must be considered mitigating. See, e.g., Cofield v. State, 247 Ga. 98, 274 S.E.2d 530 (Ga. 1981). If the juror nevertheless persisted in refusing to consider the issue in mitigation, the juror could be struck without prejudice to the rights of the accused.
46. If the same exchange took place in front of the assembled panel, the other jurors would be prejudiced by their fellow juror's attitudes.
47. The same problem will beset the trial court with respect to a number of questions which the accused may legitimately ask during voir dire, in order to ascertain which jurors will be prepared to follow the law.
> Mr. Client has an absolute right to voir dire the jurors' attitudes towards "victim impact" evidence--i.e., if the prosecution feels that the death of the victim in this case is worse than in other cases, Mr. Client should be allowed to ask jurors whether the nature of the victim will make a difference to them
48. As discussed in great length in other motions, the prosecution may seek to introduce "victim impact" evidence in this case. This is a very sensitive issue, and the defense has the right to question jurors on their attitudes towards this type of evidence.
49. A similarly sensitive issue involves the nature of jurors' relationships with the victim's family. Questioning on this can be very sensitive, since the juror may say things that reflect on the victim or the family that should not be put before the jury. Certainly, the defense has the right to voir dire and excuse jurors on this basis. See State v. Brown, 496 So. 2d 261, 264 (La. 1986). This is true in any case where "a prospective juror admits to having a personal relationship with the victim or the victim's family. . . ." Id. at 265 (juror's son played on little league team with victim's younger boy); State v. Gibson, 505 So. 2d 237, 240 (La. App. 3d Cir. 1987) (defendant's challenge for cause a juror who knew victim and was a good friend of the victim's family should have been granted).
> Mr. Client has an absolute right to voir dire on other prejudicial matters within the jurors' knowledge
50. There may be other areas, as yet unforeseen, where highly prejudicial matters will come up which must be dealt with on an individual basis. As a matter of federal law, the general rule is that "the trial court abuses its discretion in voir dire when the parties are denied the right to some surface information about prospective jurors which might furnish a basis for challenge." United States v. Brown, 799 F.2d 134, 136 n. 3 (4th Cir. 1986) (citing, United States v. Baldwin, 607 F.2d 1295, 1297 (9th Cir. 1979) ("[d]iscretion is not properly exercised if the questions are not reasonably sufficient to test the jury for bias or partiality")); United States v. Segal, 534 F.2d 578, 581 (3rd Cir. 1976); United States v. Jackson, 542 F.2d 403, 413 (7th Cir. 1976). 51. Indeed, "it is clear that the [Supreme] Court [has] presupposed the right to a searching and extensive voir dire where the potential for prejudice exists. . . . [V]oir dire must be adequate to unearth potential prejudice" in the jury pool. Jordan v. Lippman, 763 F.2d 1265, 1275, 1278 (11th Cir. 1985) (quoting Irvin v. Dowd); accord Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968).
52. Voir dire must not be grudgingly restricted when it comes to matters of potential prejudice: The right in criminal cases to examine each prospective juror in order to secure an impartial jury . . . [includes] the right to inquire of the individual jurors examined touching any matter which would illustrate any interest of the juror in the case including . . . any fact or circumstance indicating any inclination, leaning or bias which the jury might have respecting the subject matter of the action . . . .
Legare v. State, 348 S.E.2d at 882 (emphasis supplied).
53. One example of a sensitive area which must be explored during voir dire is the misinformation concerning Mr. Client's prior brushes with the law--including alleged instances of child molestation.
54. As another possible example, some people are unwilling to reveal the fact that they are members of an exclusive club, and yet the accused has the "right to inquire as to a prospective juror's connections with fraternal organization . . . [and it] is error not to permit counsel to ask such a question." Dunn v. State, 309 S.E.2d 370 (Ga. 1983). In State v. Parks, 92 N.C. 181, 374 S.E.2d 138 (N.C. App. 1988), the accused was improperly refused permission to ask jurors whether they were members of the National Rifle Association (NRA).
55. These areas only provide examples of the sensitive matters which must be discussed on voir dire with the prospective jurors in this case.
THE LAW REGARDING INDIVIDUAL, SEQUESTERED VOIR DIRE
56. All of this compels the conclusion that individual voir dire should be allowed in this case. Where a showing has been made that the accused should be permitted to voir dire on sensitive, prejudicial matters, the voir dire must be by individual juror, sequestered from the others. State v. Claybrook, 736 S.W. 2d 95, 98-100 (Tenn. 1987). In the paragraphs below, Mr. Client briefly recounts the legal principles which lead inexorably to this result. Especially where there are such delicate issues that must be discussed, "[a] searching voir dire is a necessary incident to the right to an impartial jury." United States v. Bear Runner, 502 F.2d 908, 911 (8th Cir. 1974) (citing Dennis v. United States, 339 U.S. 162, 70 S. Ct. 519, 94 L. Ed. 734 (1950)); Morford v. United States, 339 U.S. 258, 70 S. Ct. 586, 94 L. Ed. 815 (1950). See also Swain v. Alabama, 380 U.S. 202, 218-19, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1964) ("[t]he voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories"); Jordan v. Lippman, 763 F.2d 1265, 1277 (11th Cir. 1985) ("voir dire is key element in the trial court's constitutionally-mandated search for juror impartiality"); United States v. Davis, 583 F.2d 190, 196 (5th Cir. 1978) ("court should have determined what in particular each juror had heard or read and how it affected his attitude towards the trial").
57. Because "[t]he defendant in a criminal case has the right to 'probe for the hidden prejudices of the jurors,'" Silverthorne v. United States, 400 F.2d 627, 640 (9th Cir. 1968) (quoting Lurding v. United States, 179 F.2d 419, 421 (6th Cir. 1950)), the voir dire must be sufficient to bring out enough underlying facts about each juror's extrajudicial knowledge, the sources of that knowledge, the opinions which have been formed, and all of the surrounding circumstances so that an independent determination of impartiality can be made regardless of the juror's assurances.
58. A thorough voir dire is important for many reasons. For example, there must be questioning that is more than superficial if the trial court is to judge the propriety of challenges for cause since, "in the absence of an examination designed to elicit answers which could provide an objective basis for the court's evaluation, 'merely going through the form of obtaining the jurors' assurances of impartiality is insufficient. . . .'" Silverthorne v. United States, 400 F.2d 627, 638 (9th Cir. 1968); see also, Irvin v. Dowd, 366 U.S. 717, 728, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1960); Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986); Jordan v. Lippman, 763 F.2d 1265, 1275 (11th Cir. 1985).2
59. In addition to securing information for challenges for cause, the purpose of voir dire is to secure information for an intelligent exercise of peremptory challenges. La. Code Crim. Proc. Ann. art. 786, Official Revision Commend (d); State v. Duplessis, 457 So. 2d 604 (La. 1984); State v. Hills, 241 La. 345, 129 So. 2d 12 (La. 1961).
60. Additionally, there must be a meaningful opportunity to uproot existing community prejudice. The Federal Courts have repeatedly found that in cases where there is a risk of community prejudice or bias against the case, special care is constitutionally required to assure that the voir dire process is adequate to discover the level of prejudice. See, e.g., Jordan v. Lippman, 763 F.2d 1265, 1278 (11th Cir. 1985); Coleman v. Kemp, 763 F.2d 1265 (11th Cir. 1985).
61. The need for thorough voir dire is of increasing importance with the increasing sensitivity of the issues before the jury. Racial discrimination is one such special issue, as the Court recognized in Turner v. Murray. The death penalty is another. In Coleman, the federal court vacated a cumulative total of eighteen death sentences imposed on three co-defendants, in a case universally regarded as the most shocking in Georgia history, because inadequate precautions were taken at trial to assure an impartial jury. Two of the three defendants escaped the death penalty on retrial, in part because of the more complete efforts made to assure their constitutional rights.
62. In granting relief in one capital case, the federal Court held that "individual and sequestered voir dire is a significant circumstance in determining whether the trial court's findings of impartiality meet constitutional standards." Berryhill v. Zant, Civ. Action No. C85-258R, at 17, (N.D. Ga. 1986), aff'd, 858 F.2d 633 (11th Cir. 1988). The court referred to the "inhibiting effect of a large audience," the "tendency for potential jurors to incorporate other's voir dire testimony into their own," and the "danger that potential jurors would be prejudiced by comments made by other potential jurors" as factors necessitating individually sequestered voir dire. Id. at 18.
63. On appeal, Judge Clark pointed out that requiring counsel to voir dire jurors in the presence of each other results in defense counsel being faced with an unacceptable Hobson's choice:
To ensure a fair jury, he [will have] to question each prospective juror individually about what the juror [knows] about the case from the media or other exposure. By being forced to ask such pointed questions in front of the entire jury venire, however, counsel risk[s] contaminating those prospective jurors who [have] not read or heard about the case with the responses of those who [have].

Berryhill v. Zant, 858 F.2d at 642 (Clark, J. concurring) (emphasis in original). Mr. Client's right to inquire into the knowledge and biases of potential jurors may not be conditioned on his willingness to allow the entire panel to be informed of facts or prejudices held by individual jurors. See, e.g., Craig v. State, 165 Ga. App. 156, 299 S.E.2d 745 (1983); see also Williams v. Griswald, 743 F.2d 1533, 1540 n. 14 (11th Cir. 1984) ("First, the juror may be reluctant to admit any bias in front of his peers. Second, . . . group questioning serves to apprise otherwise ignorant jurors of the offensive publicity").
64. As Judge Clark pointed out, there are many dangers of voir dire en masse. Another is that panel members not only hear prejudicial information, but also learn the desired responses to questions. Jurors learn that certain answers will get them off the jury and that other answers will enable them to avoid challenges for cause. The spontaneity which assures truthfulness is lost. As the court held in Grooms v. State, 756 S.W. 2d 131 (Ky. 1988):
Inquiry in the presence of other jurors as to what a prospective juror has heard about the case poses the danger of bringing that information to the ears of the other prospective jurors. The better procedure is to question jurors separately and out of the presence of each other on such matters.

Id. at 134. In a highly controversial case such as this one where the State is seeking the death penalty, every precaution must be taken to assure candid answers to the voir dire questions. Studies have shown that this is particularly significant in capital cases, where jurors learn that they can get off the jury with specific answers to questions concerning capital punishment. See Hovey v. Superior Court, 28 Cal. 3d 1, 616 P. 2d 1301, 1349-55, 168 Cal. Rptr. 128 (1980).
65. "Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused." Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). In sensitive cases, courts have repeatedly found that this can be accomplished only through individual sequestered voir dire. See, e.g., United States v. Bear Runner, 502 F.2d 908, 911 (8th Cir. 1974); United States v. Addonizio, 451 F.2d 49 (3rd Cir. 1971), cert. denied, 405 U.S. 936, 92 S. Ct. 949, L. Ed. 2d 812 (1972); Silverthorne v. United States, 400 F.2d 627 (9th Cir.), opinion after remand, United States v. Silverthorne, 430 F.2d 675, (9th Cir. 1970) cert. denied, 400 U.S. 1022, 91 S. Ct. 585, 27 L. Ed. 2d 633 (1971).
66. As the court held in United States v. Bear Runner, 502 F.2d 908 (8th Cir. 1974):
one of the most effective means of ensuring impartiality is the voir dire proceeding during which questioning will expose any latent bias entertained by prospective jurors. Such exposure is necessary if the parties are to be expected to exercise their challenges in an intelligent and informed manner.

Id. at 911.
67. Individual, sequestered voir dire will be critical in this case to ensure that Mr. Client obtains a fair trial before an impartial jury. "It is well settled . . . that a trial court has the discretion to permit individual voir dire if the defendant can demonstrate that special circumstances are present." State v. Jordan, 420 So. 2d 420, 424 (La. 1982). As the Court held in State v. Watson, 423 So. 2d 1130 (La. 1982), the "fact that the case is a capital case," while not always dispositive, is one of the "considerations in determining whether special circumstances require individual voir dire in order to insure a fair trial." Id. at 1133.3
68. On another level, individual voir dire should be allowed where "there is a significant possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material." State v. David, 425 So. 2d 1241, 1247 (La. 1983); State v. Monroe, 397 So. 2d 1258, 1265 (La. 1981) (individual, sequestered voir dire required where "the defendant . . . show[s] special circumstances indicating why [it] is warranted"). The publicity alone should require individual voir dire in this case. See State v. Goodson, 412 So. 2d 1077 (La. 1982) (remanding case for individual sequestered voir dire on pre-trial publicity); State v. Comeaux, 514 So. 2d 84 (La. 1987).
69. Here, it would be an abuse of discretion to deny individual voir dire where "potential prejudice has been alleged in argument." State v. Berry, 391 So. 2d 406, 411 (La. 1980). Because the vast majority of prospective jurors are far more forthcoming in answering sensitive questions when questioned alone, outside the watchful eyes of their friends, neighbors and fellow citizens, it is critical that Mr. Client be able to question the potential jurors about these sensitive matters individually and apart from the other potential jurors.
70. The consequences of any failure to exercise the authority granted by the law under proper circumstances may be dire: In Jordan v. Lippman, 763 F.2d 1265 (11th Cir. 1985), the court vacated the conviction because the voir dire was inadequate. See also Coleman v. Kemp, 778 F.2d 1487, 1542 (11th Cir. 1985), cert. denied, 476 U.S. 1164 (1986) (finding group voir dire inadequate when there had been a large amount of pretrial publicity); American Bar Association Standards for Criminal Justice, Section8-3.5 (2d Ed. 1980).
71. If this Court does not allow individual sequestered voir dire it will effectively deny Mr. Client his right to an impartial jury, deny him the opportunity to challenge jurors for cause, and deny him the means to exercise his peremptory challenges intelligently. See Ham v. South Carolina, 409 U.S. 524, 532, 93 S. Ct. 848, 35 L. Ed. 2d 46 (1973) ("the right to challenge has little meaning if it is unaccompanied by the right to ask relevant questions on voir dire upon which the challenge for cause can be predicated") (Marshall, J. concurring).
WHEREFORE, Mr. Client respectfully moves this Court to:
(A) set his motion down for an evidentiary hearing at which he may marshall the evidence in support of his motion; and
(B) enter an Order directing that:
(a) there shall be individual questioning of the prospective jurors, apart from all the other jurors;
(b) there shall be sequestration of those who have been voir dired from those who have not, until such time as the jury has been chosen; and,
(c) the prospective jurors shall be admonished not to talk with one another regarding the case.
1. The defense by no means intends to limit the constitutional right to explore the racial issues in this case to just those questions set out in this motion.
2. Indeed, all this care in voir dire during a capital case is also required because this Court cannot rely upon a juror's assurances of impartiality. Irvin v. Dowd, 366 U.S. at 728 (jurors' statement of their own impartiality to be given "little weight" due to "unconscious mental processes"); Coleman v. Kemp, 778 F.2d 1487, 1543 (11th Cir. 1985) ("conclusory protestations of impartiality in the voir dire" were not sufficient to rebut the presumption of prejudice due to pre-trial publicity); Jordan v. Lippman, 763 F.2d at 1274 (quoting United States v. Davis, 583 F.2d 190, 197 (5th Cir. 1978)) ("The juror is poorly placed to make a determination of his own impartiality"; "juror's conclusory statement of impartiality is insufficient"); United States v. Gerald, 624 F.2d 1291, 1297 (5th Cir. 1980) (under certain circumstances "a trial court commits reversible error by permitting the jurors to decide whether their ability to render an impartial verdict is impaired").
3. One prominent attorney specializing in capital cases has stated, "[n]othing, repeat nothing, is more important in a death case, than individual, sequestered voir dire." Balske, New Strategies for the Defense of Capital Cases, 13 Akron L. Rev. 331, 341 (1979). The attorney aptly noted the problems with collective voir dire in capital cases:

Collective voir dire of jurors in panels as to their familiarity with the crime, the victim or probability of the defendant's innocence, will educate all jurors to prejudicial and incompetent material. The issues of the case may require sensitive and potentially embarrassing questions exploring the prospective juror's bias or prejudice. Group voir dire regarding capital punishment will lead to the exclusion of jurors ambivalent toward the death penalty, because jurors wishing to be excused will learn how to answer . . . questions to gain disqualification. That is, they will see other persons being excused for conscientious opposition to the death penalty, and, although their belief may not meet the test, they will mimic the previous jurors' responses in order to be excused, either out of a sense of duty or simply to escape being chosen as a juror. Finally, collective voir dire will preclude the candor and honesty which is necessary in order for counsel to intelligently exercise statutory peremptory challenges.

Id. at 341-42.
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