Fill and Sign the Motion Additional Form

IN THE CIRCUIT COURT OF       COUNTY, MISSISSIPPI STATE OF MISSISSIPPI VS. CAUSE NUMBER             DEFENDANT MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES COMES NOW,       , by counsel, and moves this Court pursu ant 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 him additional pe remptory challenges. In support of his/her motion,       states as follows: 1. The requirement that a Defendant be afford ed a fair trial by an impartial jury chosen from a "fair cross - sec tion of the commu nity is fundamental to the American system of jus tice." Taylor v. Louisiana , 419 U.S. 522, 530 (1975). The Su preme Court has long recognized that the very idea of a jury contemplates "'a body truly representative of the community.'" Carter v. Jury Commis sion , 396 U.S. 320, 330 (1970) (quoting Smith v. Texas , 311 U.S. 128, 130 (1940)); see also Williams v. Florida , 399 U.S. 78, 100 (1970) (the size of juries should be sufficient to ensure "a fair possibility for obtaining a representative cross - section of the community"). Capital cases - - particularly the sentencing phase - - pres ent unique jury selection issues often necessitat ing that the defense be provided with additional peremptory challeng es in order to protect the constitutional guarantees of a fair trial by an impartial jury drawn from a fair cross sec tion of the communi ty. Jurors often have very strong views about the death penalty. Many prospective jurors, particularly in this period where there is tremendous publicity and fear surrounding violent crimes, strongly favor the death penalty and will vote for death in all cases of capital murder. Yet, it is well - known that prospec tive jurors often fail to express these views fully in voir dire . Wainwright v. Witt , 469 U.S. 412, 424 - 25 (1985); Nietzel and Dillehay, The Effect of Varia tions in Voir Dire Procedures in Capital Murder Trials , 6 Law & Human Behavior 1, 4 - 5 (1982). Accordingly, although they ought to be subject to exclusion for cause, they may often not be excused. Cf . Williams v. Griswald , 743 F.2d 1533, 1540 n.14 (11th Cir. 1984). Thus, additional peremptory challenges are needed to purge taint from the jury. 2. Moreover, prosecutors regularly use their peremp tory chal lenges to exclude from juries any prospective jurors who voice any reservations about the death penalty, no matter how minor those reservations are. See Winick, Prosecutorial Peremp tory Challenges Practices in Capital Cases: An Empirical Study and Constitutional Analysis , 81 Mich. L. Rev. 1, 21 - 39 (1982). The result is a jury devoid of members of the community who had reservations of any kind about the death penalty in violation of       's right to an impartial jury reflecting a cross sec tion of the community. See People v. Sears , 450 P.2d 248, 257 n.5, 74 Cal. Rptr. 872 (Cal. 1969) ("a prosecutor who uses pe remptory challenges for the purpose of producing [a jury stripped of all people with reservations about the death penalty] is violating his obliga tion to assure the defendant a fair tri al"), vacated on other grounds , 2 Cal. 3d 180, 465 P.2d 847, 84 Cal. Rptr. 711 (1970); Winick, supra , 81 Mich. L. Rev. at 43 - 44. Because of this com mon practice by the prosecution, the defense must be provided with additional peremptory challenges. 3. In addition, prosecutors often improperly use perempto ry chal lenges to exclude from juries minorities, includ ing blacks and other legally - cognizable groups, in an effort to obtain a jury disposed in favor of death. In fact, one Missis sippi prose cutor has admitted under oath that when blacks appear on jury panels in capital cases he tries "to get rid of as many as [he] can." Deposition of Edward Peters at 26, Edwards v. Thigpen , No. J83 - 0566(B) (S.D. Miss. Apr. 12, 1985). This prac tice violates the Equal Protection Clause of the Fourteenth Amendment and the Fair Cross - Section Requirement of the Sixth Amendment. See , e.g ., Batson v. Kentucky , 476 U.S. 79 (1986); Duren v. Missouri , 439 U.S. 357 (1979). It as well requires the grant of additional peremptory challenges for the defense. 4. Additional peremptory challenges are also needed to combat the prejudice to the defense of any pre - trial public ity and any bias resulting from the jury being told before trial begins and any evidence is presented that the defendant is guilty of capital murder. 5. There is ample legal authority for the granting of addi tion al peremptory challenges. The Mississippi Supreme Court has ex pressly directed trial courts to consider "afford[ing defense] counsel additional peremptory challenges" in capital cases where the jury pool is improperly skewed, as it will be in this case, in favor of death. Mhoon v. State , 464 So.2d 77, 81 (Miss. 1985). Similarly, other courts have recognized the need for additional peremptory challenges. See e.g. , State v. Neil , 457 So.2d 481 (Fla. 1984). The American Bar Association has simi larly promulgated standards providing that trial judges "should have the authority to allow addi tional peremptory chal lenges when justi fied." ABA, Standards Relating to Juror Use and Management , Standard 9 (b), (g) at 83, 85 - 86 (1983). Under the circumstances of this case, a refusal to grant the defense addi tional peremptory challenges would be inconsis - tent with the Mississippi Supreme Court's decision in Mhoon . WHEREFORE,       requests that he/she be granted a minimum of       additional peremptory challenges in the selec tion of the jury in this case. This Motion provides an ample basis for this Court to grant the requested relief. If the Court thinks other wise, however,       requests that he/she be grant ed funds to retain experts and that he/she be afforded an evi dentiary hearing at which he/she will have the opportunity to estab lish that prosecutors in this district regu larly use their pe remptory challenges to exclude jurors with any reservations about the death penalty. 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 This the       day of       20       . _____________________________