7execut

LOUISIANA PUBLIC DEFENDER BOARD

_______________________________________

IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

=================================

STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

=================================

MOTION FOR JURY VIEW OF THE EXECUTION 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, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, and other law set out below, to order that the jury be allowed to visit the Louisiana State Penitentiary to view the manner in which Mr. CLIENT would be executed or, in the alternative, that he be allowed to introduce evidence on the subject. In support of his motion, Mr. CLIENT states as follows:

1. Since this is to be a capital 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. "The nature of the penalty phase at a capital trial indicates the importance of the jury receiving adequate and accurate information regarding the defendant. Without such information, a jury cannot make the life or death decision in a rational and individualized manner." State ex rel. Busby v. Butler, 538 So. 2d 164, 172 (La. 1988) (citing Tyler v. Kemp, 755 F.2d 741, 745 (11th Cir. 1985)).
3. In a death penalty trial, a jury is charged with determining the appropriate punishment for a convicted defendant, by finding, if warranted, that a statutory aggravating circumstance is proven beyond a reasonable doubt, and by weighing that finding against the presence or absence of mitigating circumstances, determining thereby the propriety of capital punishment. The purpose of the presentation of evidence at a death penalty trial is to enable the jury to make an informed judgment as to the propriety of the punishment sought by the State. The law looks with disfavor upon a sentence imposed in ignorance of the facts.
4. The law also looks with disfavor on any effort to prevent the jury from viewing the death penalty for what it is--the most severe punishment that one human (or inhuman) being can possibly meet out to another. As the Supreme Court of Louisiana has held, "[t]o refer to the death penalty as 'nothing unusual' and as not a harsh penalty is inaccurate. . . ." State v. Monroe, 397 So. 2d 1258, 1271 (La. 1981).
5. If the jury returns a sentence of death, Mr. CLIENT is now subject to execution by lethal injection. Various factors related to the manner in which the final hours of a condemned person's life tick away contribute towards juries rendering death sentences while ignorant of the consequences of their determination, thus failing to meet this critical requirement of reliability. Potential jurors in capital cases frequently assume that the death penalty is "humanely" carried out. For this reason, jurors often opt for the death penalty under the erroneous impression that it is either "too good for" the accused, or is somehow "kinder" than life imprisonment.
6. This misperception is compounded when prosecuting attorneys argue -- after the defense has completed presentation of the evidence, and after the final defense argument -- that death is "easier" for the accused than it was for the victim, and that the jury would be "kind" to impose such a punishment. It is an "elemental due process requirement that a defendant not be sentenced to death 'on the basis of information which he had no opportunity to deny or explain.'" Skipper v. South Carolina, 476 U.S. 1, 5 n.1, (1986) (quoting Gardner v. Florida, 430 U.S. at 362; id., 476 U.S. at 10 (Powell & Rehnquist, JJ., & Burger, C.J., concurring). For this reason, Mr. CLIENT has a constitutional right, founded in the Eighth Amendment, to correct misperceptions shared by jurors, and to refute any argument bearing on the "kindness" and "humanity" of execution that may be made by the prosecutor.
7. A view of the physical location where persons in Louisiana are executed, and a description of the actual execution, will provide the jury with accurate information upon which they may base their decision as to the propriety of the death sentence as a punishment. This Court may grant jury views at the trial in order to reach the ends of justice. A view of the necessary consequences of a death sentence will permit the jury to acquire unique knowledge as to the nature of the choice it is compelled by law to make. The view sought has a tendency to make a fact of consequence to the sentencing proceeding -- i.e., the propriety of alternative forms of punishment -- more or less probable than it would be without the view since, in the absence of an understanding of the conditions of capital imprisonment and the nature of execution by lethal injection, the jury would be ignorant of the punitive nature of the sentence it must consider.
8. In certain circumstances, photographs or videotapes may be introduced in sentencing proceedings as demonstrative evidence, in order to establish or rebut a fact relevant to the proceeding. See Smith v. State, 419 So. 2d 563, 567 (Miss. 1982), cert. denied, 460 U.S. 1047 (1983). Photographs and videotapes are admissible to place before a jury information that may otherwise be obtained by a view, when it is reasonably certain that the evidence will be of an important aid to the jury in reaching a correct disposition, and when the probative value is not outweighed by the prejudicial impact. National Box Co. v. Bradley, 171 Miss. 15, 28, 157 So. 91, 93 (1934).
9. Photographs or videotapes of the manner of execution by lethal injection are clearly relevant to this death penalty trial, particularly where the authenticity and reliability of such photographs may be made certain. Alternatively, a documentary videotape entitled "Fourteen Days in May," accurately depicting the facts of the final days in the life of a prisoner, and of the process of his execution, exists and is available, and the defense is prepared to present it to this Court for evidentiary review at any time. In the absence of an understanding of the consequences of a sentence of death and of a sentence of imprisonment, the jury would be denied information that is clearly relevant to the determination they are charged to make -- the propriety of the punishment suitable to the crime of which the defendant has been convicted.
WHEREFORE Mr. CLIENT moves that the jury be allowed to visit the Louisiana State Penitentiary to view the manner in which Mr. CLIENT would be executed or, in the alternative, that he be allowed to introduce evidence on the subject.
??

(..continued)