Hoover v. State, 552 So. 2d 834

MOTION TO PRECLUDE THE PROSECUTION FROM USING PEREMPTORY CHALLENGES TO EXCLUDE BLACK PERSONS AND MEMBERS OF OTHER GROUPS

IN THE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

VS. CAUSE NUMBER

** DEFENDANT

MOTION TO PRECLUDE THE PROSECUTION FROM USING PEREMPTORY CHALLENGES TO EXCLUDE BLACK PERSONS AND MEMBERS OF OTHER GROUPS

COMES NOW, , by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article 3, §§ 5, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 & 32 of the Mississippi Constitution to bar the prosecution from exercising peremptory challenges at all or, in the alternative, to bar the prosecution from using peremptory challenges to exclude black persons, women, and members of other cognizable social groups. In support of his motion, states as follows:

I.

1. The United States Supreme Court recently decided, in , that a criminal defendant may object to discrimination in the jury selection process even if the excluded juror is not a member of the same group as the defendant. The principle of is obviously applicable to the exclusion of black persons, and nothing more need be said about 's right to challenge such exclusions. However, the principle is equally applicable to group based strikes that are predicated on groups other than racial ones. Set forth below are just a few of the various permutations on this theme.

A. Gender-based strikes.

2. For example, while is male, it is well established that gender-based classifications used by the state are subject to constitutional scrutiny. In , the court considered whether the principles established in Batson compelled the prohibition of peremptory challenges on the basis of the venireperson's gender.

B. Witherspoon-Violative Strikes.

3. In this trial, the State will seek to death qualify the jury by conducting a voir dire to question members of the jury pool about their views toward capital punishment and to remove for cause those venire persons who are so opposed to the death penalty that they could never vote to impose it.

4. The Court held that a defendant's fundamental right to a fair and impartial jury would be violated if the prosecution were permitted to exclude jurors who were opposed to the death penalty, but who could otherwise vote to impose the State's death penalty statute under certain circumstances.

5. The exclusion of even one potential juror who could otherwise serve under the Witherspoon and Fuselier standards, the sentence imposed by such an unconstitutional jury would be vacated.

1. If the prosecution may not exclude these jurors for cause because to do so would violate 's right to a fair and representative jury, surely the prosecution cannot be permitted to achieve the same impermissible goal by abusing its peremptory challenges.

2. Neither may the prosecution illegitimately exclude such groups as hispanics, mexican-americans, native americans, or even males just because they are males.

II. THE HISTORY OF DISCRIMINATION IN THE TWENTIETH JUDICIAL DISTRICT AND ACROSS THE STATE OF MISSISSIPPI MUST RESULT IN THE PRECLUSION OF THE EXERCISE OF PROSECUTORIAL PEREMPTORY CHALLENGES ALTOGETHER.

1. There has been a history of discrimination in the selection of juries in this Judicial District and across this State. As set forth below, this on-going pattern of discrimination must result in the prohibition of the use of peremptory challenges by the prosecution altogether.

A. An Introduction to Racial Discrimination in the Twentieth Judicial District.

1. The history of discrimination and abuse in the exercise of peremptory challenges continues unabated today, five years after the Supreme Court's decision in Batson v. Kentucky.

2. Habitually, black persons, women, and young people are struck from the juries in this District. It is next to impossible for the defense to ascertain the race of all jurors struck, since race is generally not reflected in the records kept at the Court house. It is for this reason that discovery is demanded of the prosecution below.

3. Neither is discrimination always limited to those groups identified by former-District Attorney Wright. Especially in capital cases, where blind adherence to stereotype is often still more rife, other groups are also singled out for exclusion.

4. Similarly, the prosecution seeks to exclude those who are not opposed to the death penalty to the extent required for exclusion under Witherspoon v. Illinois and Fuselier v. State, but who nevertheless would not apply the death penalty without very careful consideration.

5. While Batson v. Kentucky made it absolutely clear that racial and other discrimination will not be tolerated, pretextual reasons continue to be given for the disproportionate exclusion of minority persons from the juries in this District.

B. There historically was, and clearly still is, discrimination going on in the selection of juries across this State.

1. One hundred years ago, Plessy v. Ferguson was the law. Under the law of Plessy, the prosecutors of this state could validly get away with removing any black person who might have appeared on the jury.

2. That was a century ago, however. In theory, Plessy was overruled in Brown v. Board of Education. In practice, only recently did this State see appointment of its first black district attorney, far away from this Judicial District.

13. First, the District Attorney in this Judicial District, and his compadres in other Districts, decide whether someone should live or die. If he decides to take the power of God into his hands, the District Attorney -- along with his almost exclusively white male colleagues -- then decides whether he will permit any black persons to sit on the juries which make the final life-or-death decision.

14. Despite these self-evident truths, there are many District Attorneys in this state who flagrantly violate the rights of women, black people, and the poor on a routine basis in capital prosecutions, as well as in other trials.

1. has tried to gather all the information on all the cases tried in this judicial district over recent years.

2. Neither is the pattern in this Judicial District unique. Day after day, in case after case, prosecutors across this State continue to strike black persons for no real reason other than their skin color, and then give pretextual reasons for the continuation of this sorry history of discrimination.

III. THE SWAIN ANALYSIS

1. The main conceptual difference between a claim predicated on Swain v. Alabama and the case-specific claim predicated on Batson v. Kentucky is that the prosecution cannot rebut a Swain claim. The only remedy is to preclude the prosecution from using peremptory challenges altogether.

2. In various cases where there have been all-white juries in this District, the prosecution has eliminated all the black persons.

1. Finally, under the Swain v. Alabama analysis, unlike Batson v. Kentucky, once the standard is met there can be no rebuttal proffered by the prosecution.

IV. SINCE THE EVIDENCE IS NOT READILY AVAILABLE FROM ANY OTHER SOURCE BUT THE OFFICE OF THE DISTRICT ATTORNEY, THE DISTRICT ATTORNEY MUST PROVIDE DISCOVERY TO THE DEFENSE.

1. In assembling the data, has made a good faith effort to secure the information without troubling the prosecution.

2. To make his position clear, specifically requests that the prosecution produce all notes, lists, memoranda or other records of the jury selection in all cases tried in this district in the past ten years.

3. makes this request both under the provisions of the Mississippi Open Records Act and under the United States constitution.

WHEREFORE, moves that this Court grant the following relief:

1. Setting his motion down for an evidentiary hearing where he may prove the allegations set forth therein; and,

2. Requiring the prosecution to disclose any notes, memoranda or other records of jury selection in cases arising in this District over the past 15 years;

3. Enjoining the State from excluding jurors who are members of particular groups, such as black citizens, women, young people, catholics, and those who express reservations concerning the death penalty but are otherwise qualified to serve and require the exercise of peremptory challenges prior to the death qualification portion of voir dire; and,

4. Such other relief as may seem equitable and just.

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