Fill and Sign the Mississippi State House Candidate Kills Wife Self After Being Form

IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI STATE OF MISSISSIPPI VS. CAUSE NUMBER DEFENDANT MOTION FOR OPPORTUNITY TO REHABILITATE ANY PROSPECTIVE JURORWHO EXPRESSES RETICENCE WHEN ASKED TO KILL A FELLOW HUMAN BEING 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 allow the defense to proceed first on voir dire, and to allow the defense a proper opportunity to rehabilitate any prospective juror who expresses reticence when asked to kill , a fellow human being. In support of his/her motion, states as follows: 1. In Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), the Supreme 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 deat h pen- alty, but who could otherwise vote to impose the State's death penalty statute under c ertain circumstances. The Court found that when the State "[s]wept from the jury all who expressed conscientious 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 whic h 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)). 2. When a juror comes into court for the first time, and is met with a barrage of questions concerning his or her "conscientious scruples" against the death penalty, there is a strong probability that the jury may be led astray by sophistic legal questioning, and be exc luded in violation of Witherspoon. For example, in Phenizee v. State, 178 So. 579 (Miss. 1938), the Court held: The ponderous interrogatory put by trial judges, "Have you any conscientious scruples against the infliction of capital punishment," is often not understood in its full import by a prospe ctive juror, as every experienced attorney has witnessed. Id. at 581-82. For this reason, it is black letter law that to strike those who express hesitancy over imposing the death penalty without allowing the defense to voir dire them violat es Witherspoon and Fuselier. See Hansen v. State, ___ So.2d ___, No. 89-DP-0823, Slip Op. at 18 (Miss. 1991); Burns v. Estelle, 592 F.2d 1297, 1301 (5th Cir. 1979), aff'd en banc, 626 F.2d 396 (5th Cir. 1980). 3. However, this does not go far enough. The skillful prosecutor may sufficiently muddle the honest juror that, by the time that the juror is questioned by the defense, it may seem that the Witherspoon standard has been met. The prosecution has no right either to i mproperly exclude jurors, or even to properly retain others; the defendant is the one to whose benefit the constitutional right to a fair and impartial jury inures. Indeed, in Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983), the Court held that there is "an asymmetry weighted on the side of mercy." Id. at 960. In order to assure that jurors are not improperly excluded, then, the jurors should first be voir dired by the defense, and then the prosecution. WHEREFORE, moves that his/her motion be granted. 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 . _____________________________