Fill and Sign the Motion Bar Form

IN THE CIRCUIT COURT OF_________ COUNTY, ____________ NAME OF PLAINTIFF )       ) ) V. ) NO. ) ) NAME OF DEFENDANT )       ) ) MOTION TO BAR PREJUDICIAL AND INACCURATE SPECULATION CONCERNING ___________'S POSSIBLE ELIGIBILITY FOR PAROLE 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 _____ , Sections __________ of the __________ Constitution to take steps necessary to preclude the jury from speculating im properly and inaccurate ly concerning his possible eligibility for parole. In support of his motion __________________ states as follows: 1. ________________ does not have a record which is bad enough to be indicted as an habitual offender. See Miss. Code Ann.  99-18-81, 83 (Supp. 1990) . If he had committed several crimes, and he were sentenced to life imprisonment as an habitual offender, __________________ would have a constitutional right to an instruc tion inform ing the jury that he would serve life without the possibility of parole. Turner v. State , 573 So.2d 657, 673-75 (Miss. 1990); Berry v. State , 575 So.2d 1 (Miss. 1990); Mackbee v. State , 575 So.2d 16 (Miss. 1990). 2. It is common knowledge that jurors believe that a life sentence means that the criminal will be paroled in seven to ten years. See Paduano & Stafford Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty , 18 Colum. Hum. Rts. L. Rev. 211 (1987). For this rea son, jurors are prone to impose a life sentence simply because they want to keep the defendant in jail longer. 3. That a person on death row may be executed al though most jurors think that he should be serv ing life is uncon sciona ble, as the Supreme Court of New Jersey held thirty years ago: That death should be inflicted where a life sentence is appro priate is an abhorrent thought. * * * [J]uries shall [not] weigh the death penalty against something less than a life sentence and by that process arrive at a punishment which does not fit the facts. State v. White , 27 N.J. 158, 178, 142 A.2d 65, 76-77 (1958). In Caldwell v. __________ , 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), the Supreme Court agreed, striking down a death sentence where the prosecutor had argued that any death penalty imposed on the accused would be reviewed by an appellate court. Indeed, in Zant v. Stephens , 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983), the Court further held that it would be uncon - stitution al to predi cate a death sentence in part upon factors "that actually should mili tate in favor of a lesser penalty." Id. , 462 U.S. at 885. Clearly, the jurors' speculation that the Parole Board might view ______________ as a sufficiently decent human being to merit parole should not result in ______________ execu tion. 4. In Turner v. State , the __________ Supreme Court emphasized that its ruling allowing accurate information concerning ineligibility for parole to go to the jury should not be construed as permitting the jury to speculate that parole might one day be granted: "This Court concurs . . . that evidence which is 'totally speculative' should be withheld from a jury debating the fate of a convicted defendant. Thus, this opinion should not be construed as modifying or re-writing substantive case law." Id. , 573 So.2d at 674-75 (emphasis in original; citation omitted). The case law as it existed prior to Turner is well covered in Williams v. State , 445 So. 2d 798 (Miss. 1984), where the Court explained: A jury should have no concern with the quantum of punish ment because it subverts a proper determination of the sentencing issue. Reference to the possibility of parole should the defen dant not be sentenced to die [is] wholly out of place at the sentenc ing phase of a capital murder trial for two addi tional reasons. First, such references inevitably have the effect of invit ing the jury to second guess the Legislature. The Legislature has de clared that persons sentenced to life im prisonment may under certain circumstances become eligi ble for parole. __________ Code Annotat ed section 47 - 7 - 3(1) (Supp. 1982). It is not more proper for the jury to concern itself with the wisdom of that legislative determina tion than it is for the jury to con sider the Legislature's judgment that death in the gas chamber be an authorized punishment for capi tal murder. Johnson v. State , 416 So. 2d 383, 392 (Miss. 1982). Second, parole is not automatic. No person sentenced to life imprisonment has any 'right' to parole. Allowing argu ment or tes - timony regarding the possibility of the defen dant some day being paroled is in effect in viting the jury to speculate how ten years in the future the parole board may exercise its leg isla tively granted discre tionary authority. This would intro duce into the sentencing pro ceedings an 'arbitrary factor' proscribed by section 99 - 19 - 105(3)(a). Id. at 810-12 (emphasis in original; citations omitted); see also United States v. Wil liams , 523 F.2d 1203 (5th Cir. 1975). Again, the same admonition may be found in the prosecut ing attorneys' own manual: Where a death sentence was given in a robbery convic tion, and the prosecu tor had argued that if the defendant were given a life sentence he would be par doned or parole, the Court re versed say - ing that there was no proof or evi dence in the record to support the statement. AUGUSTINE v. STATE , 201 Miss. 277, 28 So. 2d [ sic ] (1945). __________ Prosecutors' Manual, at II-B-9 . 5. For these reasons, then, the jury has no business speculating about parole even where parole is not prohib ited by habitual offender status. The jury should therefore be instructed that life imprisonment means precisely that--life imprisonment. The instruc tion should be the equivalent of the following: This Court instructs the jury that there are two possible punishments at this phase of the trial, death and life imprison ment. Your sentence of death means that you have ordered that ______________ be executed by lethal in jec tion; your sen tence of life imprisonment means that you have sentenced __________ to spend the rest of his natural life in prison. 6. Additionally, the prosecutor must be barred from making any comment that might be construed as raising the specter of parole in the juror's minds. See also Brown v. Estelle , 468 F. Supp. 42, 48 (N.D. Tex. 1978), aff'd , 591 F.2d 1207 (5th Cir. 1979); Lovely v. United States , 169 F.2d 386, 391 (4th Cir. 1948) (jury should not have been told that life with parole in 15 years was the alternative to the death penalty). WHEREFORE, ______________ respectfully moves that his 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 __________ _____. ____________ ________________ __________