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

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

NOTICE OF INVOLVEMENT

COMES NOW, JOHN CLIENT, by counsel, and gives notice to 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 that he may be involved in his own defense. In support of his notice, 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. Various states have recognized the state constitutional right to defend both with counsel and in person. For example, in Mississippi the law provides that the accused may be heard by himself or herself, by counsel, or both. See Bevill v. State, 556 So. 2d 699, 710 (Miss. 1990) (recognizing right to be involved in the voir dire, opening and closing statements in his own trial and sentencing proceedings where notice is given by the defense); accord Tait v. State, 362 So. 2d 292 (Fla. DCA 1978) (approving such involvement so long as the accused files a motion prior to trial providing notice); Burney v. State, 257 S.E.2d 543, 547 (Ga. 1979) ("the trial court retains the inherent power to regulate . . . the manner in which the constitutional right . . . will be exercised . . . [but] the power of the trial court does not extend so far as to cause an absolute deprivation of the constitutional right enjoyed by the defendant").
3. Under our law, La. Code Crim. Pro. art. 511 states that "[t]he accused in every instance has the right to defend himself [or herself] and to have the assistance of counsel. . . ." (emphasis supplied). This implies the same rights as have been identified by other states.
4. This is emphatically not the right to joint or "hybrid" representation that has been contemplated under the federal constitution. Cf. McKaskle v. Wiggins, 465 U.S. 168, 178, 104 S.Ct. 944, 79 L.Ed.2d 111 (1984). Rather, state law allows the accused--always under the guidance and supervision of defense counsel, who are responsible for tactical decisions on this level--to be seen to be a person rather than "The Defendant." This should not be deemed a waiver of any sort, then, of his right to subsequently question the actions that his counsel have taken on their own account. Mr. CLIENT requests an advanced ruling on this subject, since he does not wish to assert one right--to take a limited part in his own defense--at the expense of another right--to challenge any inadequate representation that he may receive at trial. It should be noted that the courts have held that this limited, state right to participation does not result in such a waiver. See State v. Bettney, 529 A.2d 1356 (Me. 1987); Ali v. United States, 581 A.2d 368, 379 (D.C.Ct.App. 1990); People v. Cabassa, 598 N.E.2d 1 (N.Y.Ct.App. 1992).
5. Mr. CLIENT also asserts his right to allocution at the penalty phase, should such become necessary. In Green v. United States, 365 U.S. 301, 81 S. Ct. 653 (1961), the Supreme Court recognized that "[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Id. at 304. For this reason, "[w]hen the defendant effectively communicates his desire to the trial judge to speak to the imposition of sentence, it is a denial of due process not to grant the defendant's request." Ashe v. North Carolina, 586 F.2d 334, 336 (4th Cir. 1978), cert. denied, 441 U.S. 966 (1979). In Boardman v. Estelle, 957 F.2d 1523 (9th Cir. 1991), the Court noted how "[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself." Id. at 1524 (quoting Green v. United States, 365 U.S. at 304). The Court held that "[d]enial of the 'traditional right of a criminal defendant to allocution prior to the imposition of sentence' was recognized as requiring reversal as early as 1689." Id. at 1526. While the United States Supreme Court has not explicitly reached this issue in the capital sentencing context, the Court has assumed without deciding that the Constitution does require that the trial court permit a defendant to speak at [capital] sentencing if he so requests." Id. at 1527 (citing McGautha v. California, 402 U.S. 183, 218-19, 91 S. Ct. 1454, 1472-73, 28 L. Ed. 2d 711 (1971) (allocution is a right of "immemorial origin"); see, generally, Jalbert v. District of Columbia, 221 A.2d 94, 97 (D.C. App. 1966) (statutory right to allocution). This right has long been recognized in the capital context by the Louisiana Supreme Court. See State v. Ikenor, 107 La. 480, 32 So. 74 (La. 1902).
6. Mr. CLIENT moves in limine, pursuant to the Fifth Amendment of the Federal Constitution, as well as the State Constitution, to preclude the prosecution from making any comment on his assertion of this right.
7. Mr. CLIENT further moves to prohibit the prosecution from making any comment on the fact that his statements made while asserting this constitutional right will not be given as sworn testimony.
WHEREFORE, Mr. CLIENT gives the notice provided above of his right to be involved in certain very limited aspects of his case, and requests the Court's ruling on any potential adverse consequences that the Court foresees with respect to this assertion of right.
??

(..continued)