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

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

STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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

MOTION TO PRECLUDE PROSECUTION FROM CHANGING HORSE IN MIDSTREAM

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 preclude the prosecution from changing horses in mid-stream in this case. In support of his motion, Mr. CLIENT states as follows:

1. "The essence of due process is fundamental fairness. . . ." United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7th Cir. 1984). That prosecutors should conduct themselves in a manner which is fundamentally fair is not simply a talisman, the rote incantation of which forgives its subsequent violation. Indeed, the Canons of Ethics of the American Bar Association Code of Professional Responsibility provide that "[a] government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair." EC 7-14.
2. Combining both the legal and the ethical, Judge Clark noted in Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985), that "[i]t is the duty of a prosecutor not only to convict but to seek justice. He has the responsibility to guard the rights of the accused as well as those of society at large. This is so because '[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of justice suffers when any accused is treated unfairly.'" Id. at 1478 (separate opinion of Clark, J.) (citations omitted).
3. In Drake the prosecution sought to apply two different theories in two different trials:

[The co-defendant] Campbell told essentially the same story in both trials, i.e. that Drake and only Drake was the murderer. In Campbell's trial, however, the prosecutor attacked that story as unbelievable and argued that Drake was merely the one who "cased" the barbershop. Having destroyed Campbell's credibility in that trial and secured one death penalty, he then called Campbell as the state's principal witness in Drake's trial in order to obtain a second one.

Id. at 1478.
4. However, this type of tactic is simply unfair. The "Supreme Court [has] made clear that . . . [t]he prosecutor has a duty not only to refrain from soliciting false evidence but also a constitutional duty to correct false evidence that he does not intentionally elicit. * * * The conclusion [from the inconsistent theories] seems inescapable that the prosecutor obtained Henry Drake's conviction [and death sentence] through the use of testimony he did not believe; bringing this case under the logical . . . framework of [the Supreme Court case law]. As the state habeas judge recognized, the prosecution's theories of the same crime in two different trials . . . are totally inconsistent. This flip flopping of theories of the offense was inherently unfair." Id. at 1478-79.
5. Similarly, in Saylor v. Cornelius, 845 F.2d 1401 (6th Cir. 1988), the Court condemned the use of inconsistent theories, since "[t]he state had the option of presenting the jury with a number of theories of criminal liability. It chose to present the jury with [one] theory and . . . failed to present the [other], despite the fact that it clearly could have done so." Id. at 1409. Both due process and principles of double jeopardy allow that "[t]he state ha[ve] its opportunity to put its best proof and theories of criminality before the jury [but] it is not entitled to a second chance." Id. at 1409. See also Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218, 72 L.Ed.652 (1982) (the Double Jeopardy clause "forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding").
6. There is also the legal doctrine of collateral estoppel, which is incorporated into constitutional notions of due process and fair play. See, e.g., Buck v. Maschner, 878 F.2d 344, 346 (10th Cir. 1989); Salcedo v. State, 376 S.E.2d 360 (Ga. 1989). Collateral estoppel is properly invoked "if the issue in the subsequent proceeding is identical to the one involved in the prior action [and] the issue is actually litigated. . . ." Williams v. Bennett, 689 F.2d 1370, 1381 (11th Cir. 1982); State v. Brooks, 541 So. 2d 801, 810 (La. 1989); see also Jordan v. McKenna, 573 So. 2d 1371, 1375 (Miss. 1990) ("[W]here a question of fact . . . is actually litigated and determined by a valid and final judgment, that determination is conclusive . . . [against the party against whom it was made] in a subsequent suit on a different cause of action").
7. Collateral estoppel does not just bar relitigation of certain facts and theories--"it may bar prosecution or argumentation of facts. . . ." Ferenc v. Dugger, 867 F.2d 1301, 1303 (11th Cir. 1989) (emphasis supplied).
8. Thus the Louisiana Supreme Court has recognized that there may be "a situation where the prosecutor has adopted such a fundamentally inconsistent position in the separate trials of two co-conspirators that basic fairness might require the trial court to permit exposure of the inconsistent positions." State v. Wingo, 457 So. 2d 1159, 1166 (La. 1984). In Louisiana, there is authority found in the comments to the Code for this proposition:
The more recent case of State v. Latil, 231 La. 551, 567, 92, So. 2dd 63, 69 (1956), after a thorough examination of the use of the doctrine in other states, the court said:

"A rule universally obtaining is that the doctrine of res judicata-by which a fact or matter distinctly put in issue and directly determined by a court of competent jurisdiction cannot thereafter be disputed between the same parties-is applicable to judgments in criminal prosecution."

La. Code Cr. Pro. Art. 598 (Official Comments); see also Nichols v. Collins, 802 F. Supp. 66 (S.D. Tex. 1992) (finding "blatant misconduct by the prosecutor [that] violated doctrines of judicial estoppel, collateral estoppel, due process, and the duty to seek justice" where the state convicted two persons as the trigger man in a one-shot crime, "unfairly convict[ing] two different men of firing that single bullet"; two people can be convicted for one crime "as long as law and physics provide for such"). Rather than this, the prosecution cannot take different theories in different cases--alleging that one theory is appropriate in one case, and another in another case.
WHEREFORE, Mr. CLIENT moves that his motion be granted, and that this Court preclude the prosecution from changing horses in mid-stream in this case.
??

(..continued)