Fill and Sign the Motion to Declare Unconstitutional Form

IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI STATE OF MISSISSIPPI VS. CAUSE NUMBER DEFENDANT MOTION TO DECLARE UNCONSTITUTIONAL THE DISCRIMINATORY EXCLUSION OF ILLITERATES FROM THE JURY COMES NOW, , by counsel, and moves this Court pursuant to the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article 3, §§ 14, 23, 26 and 28 of the Mississippi Constitution to declare unconstitutional the discriminatory exclusion of i lliterate people from the jury. In support of his/her motion, states as follows: 1. is an indigent man, with little education, who is charged with a crime which apparently occurred in this county. has a right to Equal Protection of the la ws, and to a representative jury selected from a fair cross section of the population, guaranteed by the Sixth, Eighth and Fourteenth amendments. See, e.g., Thiel v. Southern Pacific Co., 328 U.S. 217 (1946); Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 (1979). Abrogation of this right would require reversal of any conviction or sentence of death. 2. "The importance of a non-discriminatory jury composition is magnified in capital ca ses, where juries are required to consider 'as a mitigating factor, any aspect of a de fendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Gibson v. Zant, 705 F.2d 1543, 1546 (11th Cir. 1983) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). A true representation of the community is necessary to ensure that the defendant is given the "individualized" consideration at a capital sentencing hearing required by the Eighth Amendment. For the collective "moral, factual and l egal judg- ment[s] of . . . juries . . . play a meaningful role in the sentencing," Barclay v. Flori da, 463 U.S. 939, 950 (1983), during which myriad factors are considered and weighed in reaching the decision of whether death is an appropriate punishment. 3. Miss. Code Ann. § 13-5-1 excludes all those who cannot read and write from serving as jurors. This exclusion of illiterates results in a disproportionate exclusion of blacks, and thus produces a jury panel that is unrepresentative of the community. See, e.g., Carmical v. C raven, 547 F.2d 1380 (9th Cir. 1977) (recognizing the potential discriminatory impact on jury of an intelligence test for prospective jurors); see also People v. Craig, No. 41750 (Cal. Super. Ct. 1968) (judge prohibited use of a "clear thinking" test for prospective jurors as it resulted in a disproportionate exclusion of blacks and poor people from the jury panel). 4. An exclusion based on race or financial status is clearly unconstitutional as it violates the requirement that a jury be selected from a fair cross-section of the community as gua ranteed by the Sixth Amendment. See, e.g., Duren v. Missouri, 439 U.S. 357 (1979) (exemption of women from jury service violates "fair-cross-section" requirement of the Sixth Amendment); Taylor v. Louisiana, 419 U.S. 522 (1975) (systematic exclusion of women from jury panels violated Sixth Amendment requirement that a jury be selected from a representative cross-section of the community); Peters v. Kiff, 407 U.S. 493 (1972) (systematic exclusion of Blacks from jury service is unconstitutional); Hernandez v. Texas, 347 U.S. 475 (1954) (exclusion of Mexican- Americans from jury panel found unconstitutional); Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) (daily wage earners may not be excluded from jury venire). 5. The impact of excluding those who cannot read and write from jury service is evident from statistics of illiteracy in Mississippi. Depending upon the definition of literacy, the percentage of illiterates in Mississippi is reported at 16 percent to one-third of adults, with the greatest educational hardships falling on the black segment of the state's population. Furthermore, the congressionally mandated Lower Mississippi Delta Development Commission has recently reported that the region's 30 percent black population is among the poorest and least educ ated population in the nation, with more than half having incomes below the national poverty level, and a high percentage of illiterates. See USA Today, Aug. 31, 1990, at 11A (citing U.S. De- partment of Education Figures); Los Angeles Times, April 8, 1990, part A , at 2, col. 1; New York Newsday, July 5, 1990 , at 6. 6. Although states may prescribe relevant qualifications for their jurors, '"[t]he right to a proper jury cannot be overcome on merely rational grounds.'" Duren v. Missouri, 439 U.S. at 357 (quoting Taylor, 419 U.S., at 534). Rather, it requires that "a significant state interest be manifestly and primarily advanced" by the exclusion of certain groups. See Duren, 439 U.S. at 367-68. No such significant state interest is advanced by excluding illiterates from the jury. See Barber v. Ponte, 772 F.2d 982, 1000 (1st Cir. 1985) (en banc) ("[c]learly, the state has no right to deliberately exclude specific classes or groups from juries without some very special rea son"). The State of Mississippi's interest in trying individuals before jurors capable of properly evaluating the evidence is not harmed by permitting the illiterate to serve. Inde ed, the ability of these individuals to understand English and evaluate the demeanor of the witnesses assures t he accused of a fair trial. See, e.g., United States v. Rouco, 765 F.2d 983, 991 (11th Cir. 1985) (court found that although juror had difficulty reading and speaking English, she understood English well enough to impartially evaluate the evidence and render the quality of jury service the law contemplates). 7. Furthermore, the Mississippi Supreme Court has recognized that functional illiteracy does not disqualify an individual from serving as a juror. See Herring v. State, 374 So.2d 784 (Miss. 1979) (a person who meets the other qualifications and can read and write only a few words is qualified as a juror); accord Johnson (Edward Earl) v. State, 416 So.2d 383, 390 (Miss. 1982) (capital prosecution). 8. For these reasons, close scrutiny must be given to any statute which makes assumptions about the ability of certain groups to serve as jurors. As the Supreme Court stated in Thiel v. Southern Pacific Co.: Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury com- petence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury. Id., 328 U.S. at 220. Since the exclusion of prospective jurors on the basis of their ability to read and write does not advance a significant state interest and results in the disproportionate exclusion of blacks, this exclusion produces a jury panel which does not satisfy the constituti onal requirement that a jury represent the community. WHEREFORE, for these and such other reasons as may appear at an evidentiary hearing on this matter, moves that this Court strike down as unconstitutional the statute excluding the illiterate from jury service. 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 20 . _____________________________