United States of America v. Johnson C

IN THE CIRCUIT COURT OF COUNTY,

NAME OF PLAINTIFF

V.

NAME OF DEFENDANT

NO.

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 improperly and inaccurately 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 instruction informing the jury that he would serve life without the possibility of parole.

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 reason, 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 although most jurors think that he should be serving life is unconscionable, as the Supreme Court of New Jersey held thirty years ago:

That death should be inflicted where a life sentence is appropriate 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 unconstitutional to predicate a death sentence in part upon factors "that actually should militate 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 execution.

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 punishment because it subverts a proper determination of the sentencing issue. Reference to the possibility of parole should the defendant not be sentenced to die [is] wholly out of place at the sentencing phase of a capital murder trial for two additional reasons.

First, such references inevitably have the effect of inviting the jury to second guess the Legislature. The Legislature has declared that persons sentenced to life imprisonment may under certain circumstances become eligible for parole. Code Annotated section 47-7-3(1) (Supp. 1982). It is not more proper for the jury to concern itself with the wisdom of that legislative determination than it is for the jury to consider the Legislature's judgment that death in the gas chamber be an authorized punishment for capital 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 argument or testimony regarding the possibility of the defendant some day being paroled is in effect inviting the jury to speculate how ten years in the future the parole board may exercise its legislatively granted discretionary authority. This would introduce into the sentencing proceedings 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. Williams, 523 F.2d 1203 (5th Cir. 1975). Again, the same admonition may be found in the prosecuting attorneys' own manual:

Where a death sentence was given in a robbery conviction, and the prosecutor had argued that if the defendant were given a life sentence he would be pardoned or parole, the Court reversed saying that there was no proof or evidence 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 prohibited by habitual offender status. The jury should therefore be instructed that life imprisonment means precisely that--life imprisonment. The instruction 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 imprisonment. Your sentence of death means that you have ordered that be executed by lethal injection; your sentence 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.

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 .