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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. __________________ HAS STANDING TO LITIGATE THE EXCLUSION OF ANY GROUP, EVEN IF HE IS NOT A MEMBER OF THAT PARTICULAR GROUP. 1. The United States Supreme Court recently decided, in Powers v. Ohio, 499 U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), 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. Id., 113 L. Ed. 2d at 419. The principle of Powers v. Ohio and Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), 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 classifica- tions used by the state are subject to constitutional scrutiny. Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). In United States v. DeGross, 913 F.2d 1417 (9th Cir. 1990), the court considered whether the principles established in Batson compelled the prohibition of peremptory challenges on the basis of the venireperson's gender. Id. at 1421. The DeGross court first found that gender-based challenges, like racial challenges, are based: [E]ither on the false assumption that mem- bers of a certain group are unqualified to serve as jurors, or on the false assumption that members of certain groups are unable impartially to consider the case against a member or a non-member of their group. Id., 913 F.2d at 1422 (citations omitted). The court then found that gender discrimination during jury selection, again like racial discrimination, "harms the excluded venirepersons, undermines public confidence in the judicial system, and stimulates community prejudice." Id. at 1422. Based on these findings, the court concluded that "equal protection principles prohibit peremptory challenges exercised on the basis of a venireperson's gender." Id. at 1423; see also People v. Blunt, 561 N.Y.S.2d 90 (App.Div. 1990); People v. Irizarry, 560 N.Y.S.2d 279 (App.Div. 1990); Commonwealth v. Samuel, 495 N.E.2d 499 (Mass.App. 1979).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. Because potential jurors are excluded based solely on their views, a death qualified jury is not representative of the community and may not be truly impartial. See generally Ballew v. Georgia, 435 U.S. 223 (1978) (defendant's right to representative jury violated when jury was limited to five members; recognizing that right is secured only when various predispositions and biases of the community at large are present on jury); Fay v. New York, 332 U.S. 261 (1947) (examining conviction ratios of special juries to determine whether defendant's right to impartial jury was violated). In Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), the Supreme Court carved out a limited exception to the capital defendant's right to a truly representative jury by permitting the prosecution to exclude only those jurors who refused to follow the law or those jurors who were, "[i]rrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." Id. at 522 n.21.4. 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. The Court found that when the State "[s]wept from the jury all who expressed conscien- tious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality" by creating a jury which was "[u]ncommonly willing to condemn a man to die"--i.e., a jury unrepresentative of the community from which it was drawn. Id. at 520; see also Fuselier v. State, 468 So.2d 45 (Miss. 1985); Billiot v. State, 454 So.2d 445 (Miss. 1984), cert. denied, 469 U.S. 1230 (1985) (quoting Armstrong v. State, 214 So.2d 589, 593 (Miss. 1968), cert. denied, 395 U.S. 965 (1969)).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. For example, in Gray v. Mississippi, 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987), the Supreme Court found that the improper exclusion of a single prospective juror during the death qualification phase of voir dire was, in and of itself, reversible constitutional error. See also Fuselier v. State, 468 So.2d at 54 (finding that trial court committed reversible error in excusing jurors for cause who could implement death penalty statute but who were "hesitant" to do so). 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, United States v. Chinchilla, 874 F.2d 695 (9th Cir. 1989), mexican-americans, United States v. Romero- Reyna, 867 F.2d 834 (5th Cir. 1989), native americans, United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989), or even males just because they are males. See Baine v. State, 354 S.E.2d 177, 180-81 (Ga. App. 1987).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. For example, in the case of State of Mississippi v. Kevin Bryant, No. 115-91 (Lauderdale Co.), allegations of racial discrimination were made against the Office of this District Attorney: 1. The District Attorney and his staff in the past have systematically excluded mem- bers of the black race from being allowed to serve on juries. 2. It is logically anticipated that the District Attorney will continue his pattern of racial discrimination in the exercise of his peremptory challenges. * * * 5. The District Attorney in the past has consistently chosen to use his peremptory challenges to eliminate from jury service those members of the age group from 21 to 30 years of age. Motion to Restrict Prosecution Strikes (filed June 13, 1991). The interesting fact to note in these statements was that they were made by a person--Charles W. Wright-- who formerly worked in the same office, and indeed was responsible for what is apparent- ly the pattern of racial discrimination. 1 . However, he is not the only local attorney who has noted that the prosecution likes to "use[] its peremptory challenges to exclude members of the negroid race, the female sex and young adults under age thirty (30) from the jury where the prosecution is seeking the death penalty. . . ." Motion to Prohibit the State from Using Peremptory Challenges to exclude all blacks, females and young adults from the Jury , State of Mississippi v. Michael McDade, No. 1607 (Lauderdale Co., filed May 19, 1986); see also State of Mississippi v. Thomas Franklin Sherrell, No. 315-88 (Lauderdale Co.) ( Motion to Preclude the Prosecution from using peremptory challenges to exclude potential jurors who express reservations about the death penalty but who cannot be excused for cause, and to require the exercise of peremptory strikes prior to the death qualification portion of voir dire (filed Feb. 9, 1990)). 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. Nevertheless, to give but a few examples where the evidence was available, in State of Mississippi v. Michael Anthony Blanks, No. 1614-C (Laud- erdale Co.), the state used 6 of 12 strikes to eliminate all the black persons from the jury. While the defense used 11 strikes to eliminate black persons, this still left an all-white jury. In State of Mississippi v. Clarence Johnson a/k/a/ "Pot" Johnson, No. 2019-C (Lauderdale Co.), the state used 5 of 8 strikes on black persons. In State of Mississippi v. Houston Johnson, No. 1862-C (Lauderdale Co.), the state used 6 of 7 strikes against black persons. In the case of State of Mississippi v. Prentiss Dubose, No. 1949-C (Lauderdale Co.), the jury was comprised of 11 whites and 1 black person. 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. For example, in the case of State of Mississippi v. Billy Wade Smith, No. 1979-C (Lauderdale Co.), the prosecution used three strikes to remove Catholics from the case. This discrimination against Catholics is presumably predicated on such stereotypes as the perception that Catholics are against the death penalty because the Pope says they should be. 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, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), and Fuselier v. State, 468 So.2d 45 (Miss. 1985), but who nevertheless would not apply the death penalty without very careful consideration. These people obviously have the right to serve on juries and, but dint of the attitude which describes their group, are legally cognizable, as discussed below. Indeed, there are various groups which are routinely excluded by the prosecution in this Judicial District, none of whom should be thus barred from serving on juries. 5 . While Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), 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. See, e.g., Wheeler v. State, 536 So.2d 1347, 1351 (Miss. 1988) (prosecution from this District gets away again with using 4 of 6 strikes to eliminate black persons); Johnson v. State, 529 So.2d 577, 582-83 (Miss. 1988) (prosecution gets away with using 5 of 7 strikes on black persons).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, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), 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: Upon the other hand if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man. Id., 163 U.S. at 549. A century ago, the belief that black citizens "had no rights which the white man was bound to accept" was "universal . . . and men in every grade and position in society daily acted upon it in their private pursuits, as well as in matters of public concern." Scott v. Sanford, 60 U.S. (19 How.) 393, 407 (1857) (The Dred Scott Decision). If they were lucky enough to be represented at all, black slaves were represented by their owners when they were tried for capital crimes. See, e.g., Alfred v. State, 6 Ga. 483 (1849) (failure of white owner to use any peremptory strikes on behalf of his slave in capital trial not error). 1 . At that time, State courts placed enormous obstacles in the path of the few black defendants who tried to assert their new Fourteenth Amendment rights. See, e.g., Neal v. Delaware, 103 U.S. 370, 397 (1880) (state court presumed that none of the 26,000 blacks in Delaware had the "intelligence" or "moral integrity" to sit on a jury); Ex Parte Murray, 66 Fed. 297 (E.D. La. 1985) (state trial judge refused to sign defendant's subpoena for jury lists and denied relief for lack of proof); Smith v. State, 45 Tex. Crim. 405, 77 S.W. 453 (1903) (name of dead black man placed on grand jury to feign compliance with Supreme Court decision); Fugett v. State, 45 Tex. Crim. 313, 77 S.W. 461 (1903) (to defeat jury challenge, prosecutor called black physician to testify that no blacks were intelligent enough to serve); cf. Strauder v. West Virginia, 100 U.S. 303 (1880). Although the history books prove that blacks were intentionally excluded from juries in almost every county in the southern states, the belief that blacks were "in mind and morals, inferior to the Caucasian" was so well entrenched that it was regarded as a judicially noticeable fact. Wolfe v. Georgia Ry. & Electric Co., 2 Ga. App. 499, 58 S.E. 899, 901-02 (1907). The courts believed that "no human law" could prevent juries from acting upon their bias against blacks. Id., 58 S.E. at 902. 2 . That was a century ago, however. In theory, Plessy was overruled in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). In practice, only recently did this State see appointment of its first black district attorney, far away from this Judicial District. Every single one of them is male. These white males make two decisions, inter alia , in every capital case which can mean the difference between life and death, and between first class citizenship and no citizenship at all. 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. Any District Attorney -- be he or she black or white -- ought rightfully to make the first decision equitably, if at all. Rich and poor, black and white, killers of victims from all walks of society -- all should fear the execution- er equally. Similarly, any District Attorney should respect the Sixth Amendment right to a fair cross-section on the jury, and the Fourteenth Amendment right to equal protection, and permit all citizens, of every race, sex, creed or color, to share in the most momentous decision Society can make: Whether to take a human life. 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. This judicial district has witnessed such discrimination in the same manner that all the others have. 1 . _______________ has tried to gather all the information on all the cases tried in this judicial district over recent years. As set forth above, this is a very difficult process since the court records do not reflect the race of peremptory challenges in most cases. However, a pattern of abuse of peremptory challenges has appeared from those cases where the history is available. 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. For example, in Goggins v. State, 529 So.2d 649 (Miss. 1988), the State struck two black jurors, and the prosecutor said he was striking the black jurors just like the defense had struck white jurors. Id. at 651. See also, e.g., Chisolm v. State, 529 So.2d 635, 637 (Miss. 1988); Conerly v. State, 544 So.2d 1370, 1372 (Miss. 1989); Lockett v. State, 517 So.2d 1346, 1349 (Miss. 1987); Baskins v. State, 528 So.2d 1120, 1122 (Miss. 1988); Dedeaux v. State, 519 So.2d 886, 888 (Miss. 1988); Joseph v. State, 516 So.2d 505 (Miss. 1987); Caldwell v. State, 517 So.2d 1360 (Miss. 1987); Sudduth v. State, 562 So.2d 67 (Miss. 1990); Jones v. State, 517 So.2d 1295 (Miss. 1987); Thomas v. State, 517 So.2d 1285 (Miss. 1987); Gallion v. State, 517 So.2d 1364 (Miss. 1987); Booker v. State, 449 So.2d 209 (Miss. 1984); Gaines v. State, 404 So.2d 557 (Miss. 1981). In the case of Edwards v. Thigpen, 595 F. Supp. 1271 (N.D. Miss. 1984), Edward J. Peters, District Attorney for the Seventh Judicial District, announced that his "philosophy" for picking juries in capital cases was to get rid of as many black persons as possible. His ideal juror, he said, was a middle aged white male with a crew cut and white socks who welds for a living. Peters is one leopard who apparently still has not changed his spots. This kind of intolerable discrimination does immense damage to the criminal justice system.C. Where an on-going pattern illustrates the desire among District Attorneys across the State to eliminate black persons and other minorities from juries with their peremptory challenges, this Court must bar the use of peremptory challenges altogether. 1 . The main conceptual difference between a claim predicated on Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965)--alleging that the prosecution is systematically excluding black persons in all capital cases or, in this district, in all cases--and the case- specific claim predicated on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), is that the prosecution cannot rebut a Swain claim. The only remedy is to preclude the prosecution from using peremptory challenges altogether. This is why the issue must be litigated pre-trial, unlike the Batson claim. 2 . In various cases where there have been all-white juries in this District, the prosecution has eliminated all the black persons. The probability of all black venirepersons all being eliminated by chance by the prosecution is, of course, infinitesimal. Even where the prosecution uses 62% or 85% of the challenges used to eliminate black persons, this is still radically disproportionate when compared to the black population of the county concerned. Under these circumstances, it appears that the words in Plessy ring sadly true. Where the prosecutor's overwhelming instinct is to remove all black persons from the jury pool, both judicial pronouncements and [l]egislation [seem] powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. Plessy v. Ferguson, 163 U.S. at 551. Looking to the facts surrounding the manner in which juries are still selected in this State, it would seem that the fears expressed by Justice Marshall in Batson v. Kentucky, 476 U.S. at 102-08, have come home to roost. As Justice Marshall said, any machiavellian but half-way intelligent "prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill-equipped to second- guess those reasons." Id. at 106. "A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror [should be struck] . . . ." Id. at 106. Justice Sullivan has expressed his agreement with this, in another of Edward Peters' cases out of the Seventh Judicial District, in arguing that the time had come to eliminate prosecutorial peremptory challenges altogether, in light of the intransigence of those who continue to bar blacks and other minorities from jury service. See Davis v. State, 551 So.2d 165 (Miss. 1989) (Sullivan, J., concurring). For these, and other, reasons, some commentators have joined Justice Sullivan's and Justice Marshall's suggestion that a total ban on the use of peremptory challenges by the prosecution is the only manner in which they may be effectively controlled. See, e.g., Brown, McGuire & Winters, The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 New Eng. L. Rev. 192 (1978); Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels, at 167 (1977) . 1 . Any suspicion of racial discrimination in the criminal justice system is particularly damaging. As the Court held in Batson v. Kentucky: The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Id., 476 U.S. at 87. Indeed, "discrimination on the basis of race [is] odious in all respects." Rose v. Mitchell, 443 U.S. 545, 555 (1979). 1 . The principles set forth above found their roots in American jurisprudence long before Batson, and the analysis in this case must begin with Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). The basic premise of Swain was that systematic abuse of peremptory challenges, in case after case, raises a threat to the criminal justice system which is intolerable: His argument is that not only were the Ne- groes removed by the prosecutor in this case, but that there never has been a Negro on a petit jury in . . . Talladega County and that in criminal cases prosecutors have consistently and systematically exercised their strikes to prevent any and all Negroes on petit jury venires from serving on the petit jury itself. This systematic practice . . . is invidious discrimination for which the [rationale supporting the] peremptory system is insufficient justification. Swain v. Alabama, 380 U.S. at 222-23 (emphasis supplied). Where a showing is made that such systematic abuse has occurred, it does not matter that the prosecution did "not eliminate 100 percent of minority jurors to achieve an impermissi- ble purpose." Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, n. 32 (1979); see also United States v. Pearson, 448 F.2d 1207, 1217 (5th Cir. 1971). Furthermore, the proof offered by the defendant may be either statistical in nature, or historical observations of attorneys who have practiced law against the prosecutor in question. See Jones v. Davis, 835 F.2d 835, 840 (11th Cir. 1988) (where defendant offered evidence that local lawyers noted routine exclusion of black potential jurors, evidentiary hearing required); Willis v. Zant, 720 F.2d 1212 (11th Cir. 1983), cert. denied, 467 U.S. 1256, 104 S. Ct. 3546, 82 L. Ed. 2d 849 (1984). 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. State v. Washington, 375 So. 2d 1162 (La. 1979); State v. Brown, 371 So. 2d 751 (La. 1979). The prosecution must simply be precluded from exercising peremptory challenges to exclude members of the cognizable social groups. As the intransigent racial discrimination in this and other circuits amply demonstrates, there is no other manner in which _______________ constitutional rights may be adequately protected.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. However, for various reasons it appears that the prosecution has exclusive access to the information required, given the reasonable efforts made by the defense. The prose- cution doubtless retains information relating to the juries picked in trials in this district, which party struck whom, and race, sex, age and other data concerning these challenges. 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. If the prosecution has no ready way in which to ascertain which cases were tried and which were not, _______________ will provide the prosecution with a list of the cases which have been tried in that time, according to court records. If the prosecution considers this request too burdensome, ______________ or his representative will go through the files and pull the required information under whatever rules this Court may establish. 3 . ___________________ makes this request both under the provisions of the Mississippi Open Records Act and under the United States constitution. Discovery of matters such as this must be allowed where "production of those facts is essen- tial to the preparation of [the defendant's] case." Hickman v. Taylor, 329 U.S. 495, 511 (1947). The Mississippi Public Records Act of 1983 states in relevant part: [A]ll public records are . . . public property, and any person shall have the right to inspect . . . any public record. . . . Miss. Code Ann. § 25-61-1 to 17 (Supp. 1988) . Because of the public policy considerations which militate on the side of doing business in the open, any effort to restrict public access to documents in the possession of public officials is looked upon with disfavor. Parker v. Lee, 259 Ga. 195, 378 S.E. 2d 677, 679 (1989). If the prosecution has been involved in racial discrimination, it would be odious to claim that some governmental interest is being served by suppressing disclosures. In Amadeo v. Zant, 486 U.S. 214, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988), the prosecution sought to "rig" the jury to exclude blacks and women. They then sought to cover up their nefarious scheme. The Eleventh Circuit initially ordered that a hearing be held on the prosecutor's involvement in what amounts to a federal crime. Amadeo v. Kemp, 773 F.2d 1141 (11th Cir. 1985) (remand for evidentiary hearing on whether state actors contributed to concealment of issue). After the hearing, the United States Supreme Court reversed the conviction, holding that the prosecution cannot try to hide evidence of discrimination and then blame the defendant for failing to prove his case. Accord Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 2646, 91 L. Ed. 2d 397 (1986) (state cannot claim default where "some objective factor external to the defense impeded counsel's efforts" to raise the issue); Godfrey v. Kemp, 836 F.2d 1557, 1569 (11th Cir. 1988); Lewis v. Lane, 832 F.2d 1446, 1457 (7th Cir. 1987).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, memo- randa 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 mem- bers 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 re- quire 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. Respectfully submitted, ** By:_________________________ ** CERTIFICATE OF SERVICE I, _____________________, attorney for ____________, do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This the ____ day of March 20___. _____________________________ **