Motion for Additional Peremptory Challenges

MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES

IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

VS. CAUSE NUMBER

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 him additional peremptory challenges. In support of his/her motion, states as follows:

1. The requirement that a Defendant be afforded a fair trial by an impartial jury chosen from a "fair cross-section of the community is fundamental to the American system of justice." Taylor v. Louisiana, 419 U.S. 522, 530 (1975). The Supreme Court has long recognized that the very idea of a jury contemplates ""a body truly representative of the community." Carter v. Jury Commission, 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--present unique jury selection issues often necessitating that the defense be provided with additional peremptory challenges in order to protect the constitutional guarantees of a fair trial by an impartial jury

drawn from a fair cross section of the community. 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 prospective 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 Variations 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 peremptory challenges 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 Peremptory 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 section of the community. See People v. Sears, 450 P.2d 248, 257 n.5, 74 Cal. Rptr. 872 (Cal. 1969) ("a prosecutor who uses peremptory challenges for the purpose of producing [a jury stripped of all people with reservations about the death penalty] is violating his obligation to assure the defendant a fair trial"), 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 peremptory challenges to exclude from juries minorities, including blacks and other legally-cognizable groups, in an effort to obtain a jury disposed in favor of death. In fact, one Mississippi prosecutor 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 practice 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 publicity 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 additional peremptory challenges. The Mississippi Supreme Court has expressly 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 similarly promulgated standards providing that trial judges "should have the authority to allow additional peremptory challenges when justified." 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 additional 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 selection of the jury in this case. This Motion provides an ample basis for this Court to grant the requested relief. If the Court thinks otherwise, however, requests that he/she be granted funds to retain experts and that he/she be afforded an evidentiary hearing at which he/she will have the opportunity to establish that prosecutors in this district regularly use their peremptory 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

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