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 COMPENSATION OF JURORS
AT CURRENT WAGES AND FOR REIMBURSEMENT
TO PRIMARY CAREGIVERS FOR DAY CARE COSTS

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 require that all persons called for jury service in his case, who would suffer loss of wages as a result of service on the jury, be paid for jury service at their current wage rate--or at least at a wage that does not severely hamper them from serving. Mr. Client also moves that all persons called for jury service in this case, who are the primary caregivers for small children, be reimbursed for the cost of day care during the term of their jury service. 1. The Sixth Amendment to the United States Constitution--as well as the analogous provisions of the Louisiana Constitution--guarantees every criminal defendant the right to jury drawn from a pool which fairly represents a cross-section of the community. See, e.g., Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed 2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed 2d 690 (1975).

2. It is of particular importance in a death penalty case that the jury which decides the defendant's fate fairly represents the community, for 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, 57 L. Ed 2d 973 (1978) (emphasis in original). See also Davis v. Zant, 721 F.2d 1478, 1482 (11th Cir. 1983).
3. The compensation allowed to jurors by the Parish is set forth in the Code:
All expenses incurred in the different parishes of the state or in the city of New Orleans by the arrest, confinement, maintenance and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses, jurors and all expenses whatever attending criminal proceedings shall be paid by the respective parishes in which the offense charged may have been committed or by the city of New Orleans, as the case may be. The expenses shall be duly certified to be correct by the presiding judge and the clerk of court. The fees, salaries and expenses to be paid shall be fixed and regulated by the parish or city authority unless otherwise provided by law; provided, however, that those persons serving as jurors in the trial of criminal cases in the city of New Orleans shall be entitled to compensation of sixteen dollars for each and every day or part of a day on which they serve as jurors in any criminal case to be paid by the city of New Orleans; provided further that this shall not become effective until the council of the city of New Orleans will have appropriated sufficient funds for this purpose. Notwithstanding the provisions of this Section, the city of New Orleans shall only pay the above expenses after the special account created pursuant to R.S. 15:571.11(D), and to the extent authorized thereby, shall have been depleted.

La. Code Cr. Pro. 304.
4. A "wage" of sixteen dollars a day would only be two dollars per hour if the jurors were required to spend only eight hours on the job. Sequestered in a capital case, they actually spend all 24 hours each day, reducing their salary to a paltry sixty cents per hour--a wage not seen since the days of the Poor House. This does not even provide jurors with the minimum wage of over $4.35 per hour. See 29 U.S.C. Section 206(a)(1) (as amended, 1990).
5. This is, to be sure, rather shocking, for at a most basic level, the minimum wage law is designed to fix:
. . . a floor below which wages could not fall [so] that individuals . . . would be guaranteed an income on which one could maintain a minimum living standard and not find it necessary either to rely on Government assistance or to go without basic necessities. . . .

S.REP. No. 440, 95th Cong., 1st Sess. 2-3 (1977); see also Fair Labor Standards Act of 1938. Indeed, "we are acknowledging and supporting poverty by law, unless we raise the minimum wage standards to at least above the poverty level." 112 CONG. REC. 19744 (1965) (remarks of Sen. Yarborough) (emphasis supplied).
6. In addition to hourly workers, the federal minimum wage has been held to apply to various other groups represented on the jury venire, from journalists,1 to bank workers,2 to the manager of a state mental institution.3 Certainly, the wage should apply to those workers--hourly or otherwise--who are called to serve on a day-to-day basis as jurors, just as it should apply to the lawyers who represent those facing the death penalty.
7. It is no answer to say that by electing to vote (a fundamental right of any citizen), potential jurors "agree" to sub-minimum wages:
It has been repeatedly held that parties themselves may not contract to work for less than the minimum wage rate. This Court has said "[T]he obligation of the employer to meet the minimum working conditions prescribed in the Act is statutory and a matter of general public policy, and cannot be waived or contracted away by individual employers or employees."

Wirtz v. Leonard, 317 F.2d 768, 769 (5th Cir. 1963) (quoting Mitchell v. Turner, 286 F.2d 104, 106 (5th Cir. 1960)); accord Hargis v. Wabash Railroad Co., 163 F.2d 608, 611-12 (7th Cir. 1947); De Pasquale v. Williams-Bauer Corporation, 151 F.2d 578, 579 (2d Cir. 1945); see also Republic Pictures Corporation v. Kappler, 151 F.2d 543 (8th Cir. 1945) (state itself cannot legislate to limit effect of FLSA).
8. Absent adequate compensation, it is practically impossible for wage laborers and persons caring for young children to serve on the jury. Especially with capital trials, the jurors may be required to spend three weeks or more away from their families and jobs. Where they may live almost hand-to-mouth, this makes it impossible for them to serve. Because such persons are forced to request excuses for hardship, as they are unable to afford the financial loss that jury service entails, they are systematically excluded from the jury pool. See Gadsden Times Publishing Corp. v. Dean, 268 So.2d 829, 49 Ala. App. 45 (Ala. Civ. App.1972), cert. denied, 249 Ala. 743, 268 So.2d 834 (Ala. 1972), rev'd on other grounds, 412 U.S. 543 (1973) (purpose of paying jurors is to ensure that those rendering service to the state receive adequate compensation).
9. The de facto exclusion of these groups violates Mr. Client's rights. Daily wage earners and primary caregivers for young children are groups with a particular understanding of Mr. Client's predicament. Very often witnesses for capital defendants such as Mr. Client, or even as in this case the defendants, will themselves be daily wage earners, or members of the poorer strata of society. Jurors who have experienced the same deprivations better understand the predicament of persons such as Mr. Client, and may be particularly well-suited to judging him both at the guilt and the penalty phase. Likewise, those with children will appreciate the testimony of mitigation witnesses who talk of the torment of losing their loved one--in this case, Mr. Client.
10. There can be little dispute that these are cognizable groups for Sixth and Fourteenth Amendment purposes, and their under-representation from jury pools would clearly constitute a violation of Mr. Client's constitutional rights. See, e.g., Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L. Ed 1181 (1946) (recognizing daily wage earners as a cognizable legal group). The Supreme Court has recently made it clear once again that cognizable groups are not limited to racial minorities, women, and young people, but that a "Sixth Amendment [fair-cross section] claim would be just as strong if the object of the exclusion had been, not blacks, but postmen, or lawyers, or clergymen, or any number of other identifiable groups." Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 810, 107 L. Ed. 2d 905, 919 (1990) (emphasis added).
11. The systematic under-compensation of these jurors operates to deny the defendant his fundamental constitutional rights--in particular, the right to an impartial jury drawn from a fair cross-section of the community, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. It should also be emphasized that the results of under-compensation of jurors carries with it further adverse ramifications such as the consequential exclusion of jurors due to age, sex, and ethnicity, all of which bear a direct relationship to income strata. See also Hill v. Texas, 316 U.S. 400, 404, 62 S. Ct. 1159, 86 L. Ed. 1559 (1942); Akins v. Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed 2d 1692 (1945).
12. The systematic under-representation of distinctive groups accomplished through failure to pay an adequate compensation to jurors is analogous to the practice struck down in Machetti v. Linahan, 679 F.2d 236 (11th Cir. 1982). In Machetti, the court declared a Georgia statute unconstitutional in which women were allowed to opt out on jury duty simply by sending in a form that stated they were female. Having to excuse wage earners and primary caregivers of small children because of financial hardship creates under-representation of distinctive groups and denies a defendant the "right to a fair trial by [a] jury of a representative segment of the community." Machetti at 239; see also Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed 2d 579 (1979) (declaring unconstitutional a system where women could "opt out" of jury service).
13. Regardless of whether Mr. Client himself belongs to any of the groups which may be unconstitutionally under-represented in the County jury pools, he has standing to challenge their exclusion. The Supreme Court has held that the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the community, whether or not the systematically excluded groups are groups to which he himself belongs. See Holland v. Illinois, 107 L. Ed. 2d at 914.
14. On the other hand, if a juror does not receive a hardship excuse despite the fact that service will cause financial difficulties, the strain placed upon him or her will cause the juror's attention to be diverted from the proceedings in this capital case.
15. It is clear that this Court has the authority to redress this problem. Indeed, the Louisiana Supreme Court has ruled that "[a] court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders. . . ." State v. Felde, 422 So. 2d 370, 379 n.8 (La. 1982) (quoting La. C. Cr. Pro. art. 17); see also State v. Clark, 387 So. 2d 1124, 1129 (La. 1980); State v. Langlois, No. 92-KK-2776 (La. Oct. 20, 1992).
16. Further, it is beyond dispute that, where the state has a self-executing constitutional obligation requiring the expenditure of state funds, the judicial branch may compel the expenditure if the state abdicates its constitutional obligations. For example, if the state chooses to confiscate private property, the state has a self-executing obligation to provide just compensation, and the judicial branch may compel the state to expend the funds needed to fulfill that obligation. See, e.g., Reymond v. State Department of Highways, 255 La. 425, 231 So. 2d 375, 385 (La. 1970) (ordering "$2,500.00 for diminution in market value of plaintiff's residence . . . cast against the State of Louisiana through the Department of Highways"); see also State Through DOTD v. Chambers Inv. Co., 595 So. 2d 598, 602 (La. 1992) ("Although the legislature has not provided a procedure whereby an owner can seek damages for an uncompensated taking or damaging, this court has recognized the action for inverse condemnation arises out of the self-executing command to pay just compensation").
17. As the Fifth Circuit held in Gates v. Collier, 501 F.2d 1291, 1320 (5th Cir. 1974):
[W]e cannot agree that the relief here granted was impermissible. Having found these numerous constitutional violations, . . . the court had the duty and obligation to fashion effective relief. . . . The relief ordered by the trial court was tailored to alleviate the deplorable practices and conditions at Parchman. Shortage of funds is not a justification for continuing to deny citizens their constitutional rights.

Id. at 1320 (emphasis supplied).4

WHEREFORE, Mr. Client moves this Court to pay jurors their current wages and to compensate primary caregivers for day care costs or, in the alternative, to increase the flat rate paid to citizens called for jury service.
1. See, e.g., Sun Publishing Company v. Walling, 140 F.2d 445 (6th Cir. 1944), cert. denied, 322 U.S. 728, 64 S. Ct. 946, 88 L. Ed. 1564 (1944).
2. See, e.g., Hodgson v. Industrial Bank of Savannah, 347 F.Supp. 63 (S.D.Ga. 1972).
3. See, e.g., Williams v. Eastside Mental Health Center, Inc., 669 F.2d 671 (11th Cir. 1982). Currently there are over 13.2 million employees of service industries protected by the provisions of the law -- twenty percent of the total workforce covered. See Roberts & Bowers, Patching the Crack in the Floor, CLEARINGHOUSE REVIEW, 26 (May 1988).
4. In responding to unconstitutional aspects of state court procedures, courts have not generally taken revolutionary measures such as ordering the release of every prisoner. Rather, courts have ordered systemic remedies. As one commentator has stated:

Courts have legal authority to evaluate the constitutionality of state systems responsible for providing essential services to its citizens and, if necessary, to require the state legislature to raise money to bring the system into compliance with the Constitution.

(Un)Luckey v. Miller: The Case for a Structural Injunction to Improve Indigent Defense Services, 101 Yale L.J. 481, 496 (1991).
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