Fill and Sign the 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 pursu ant 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 unconstitu tional the discriminatory exclusion of illiterate 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 Protec tion of the laws, 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. Louisi ana , 419 U.S. 522 (1975); Duren v. Missouri , 439 U.S. 357 (1979). Abroga tion of this right would require reversal of any conviction or sen tence of death. 2. "The importance of a non-discriminatory jury compo si tion is magnified in capital cases, where juries are required to consider 'as a mitigating factor, any aspect of a defendant'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 representa tion of the community is necessary to ensure that the defendant is given the "individual ized" con sideration at a capi tal sentenc ing hearing required by the Eighth Amendment. For the collective "moral, factual and legal judg ment[s] of . . . juries . . . play a meaningful role in the sentencing," Barclay v. Florida , 463 U.S. 939, 950 (1983), during which myriad factors are consid ered 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 illit erates results in a disproportionate exclusion of blacks, and thus pro duces a jury panel that is unrepre senta tive of the commu nity. See , e.g. , Carmical v. Cra ven , 547 F.2d 1380 (9th Cir. 1977) (recognizing the poten tial discriminatory impact on jury of an intelligence test for prospective jurors); see also People v. Craig , No. 41750 (Cal. Super. Ct. 1968) (judge prohib ited use of a "clear thinking" test for pro spective 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 clear ly uncon stitutional as it violates the requirement that a jury be selected from a fair cross-section of the community as guaran teed by the Sixth Amendment. See , e.g. , Duren v. Missou ri , 439 U.S. 357 (1979) (exemption of women from jury service vio lates "fair-cross-section" requirement of the Sixth Amend ment); Taylor v. Louisiana , 419 U.S. 522 (1975) (sys tematic exclusion of women from jury panels violat ed Sixth Amendment requirement that a jury be se lected from a representative cross-section of the communi ty); Peters v. Kiff , 407 U.S. 493 (1972) (system atic exclusion of Blacks from jury service is unconstitu tional); Hernandez v. Texas , 347 U.S. 475 (1954) (exclusion of Mexican- Americans from jury panel found unconstitu tional); 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 Missis sippi. Depending upon the definition of literacy, the percentage of illiterates in Mississippi is reported at 16 per cent to one-third of adults, with the greatest educational hard ships falling on the black segment of the state's population. Further more, the congressionally mandated Lower Mississippi Delta Develop ment Commission has recently reported that the region's 30 percent black population is among the poor est and least educated popula tion in the nation, with more than half having incomes below the national poverty level, and a high percentage of illit erates. 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 qualifica tions for their jurors, '"[t]he right to a proper jury cannot be over come 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 reason"). The State of Mississip pi's interest in trying individu als before jurors capable of properly evaluating the evidence is not harmed by permitting the illiterate to serve. Indeed, the abili ty of these individuals to under stand English and evalu ate the demeanor of the witnesses assures the 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 impar tially evalu ate the evidence and render the quality of jury service the law contemplates). 7. Furthermore, the Mississippi Supreme Court has recog nized that functional illiteracy does not disqualify an individu al from serving as a juror. See Herring v. State , 374 So.2d 784 (Miss. 1979) (a person who meets the other qualifica tions 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 prosecu tion). 8. For these reasons, close scrutiny must be given to any stat ute which makes assumptions about the ability of certain groups to serve as jurors. As the Supreme Court stated in Thiel v. South ern Pacif ic Co. : Recognition must be given to the fact that those eligi ble for jury service are to be found in every stratum of soci ety. 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 disre gard it is to open the door to class distinctions and discrimina tions 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 constitutional 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       . _____________________________