Fill and Sign the When Fellow Form

IN THE CIRCUIT COURT OF ________ COUNTY, __________ NAME OF PLAINTIFF )       ) ) V. ) ) NO. ) ) NAME OF DEFENDANT )       ) ) MOTION FOR OPPORTUNITY TO REHABILITATE ANY PROSPECTIVE JUROR WHO EXPRESSES RETICENCE WHEN ASKED TO KILL A FELLOW HUMAN BEING COMES NOW, ________________, by counsel, and moves this Court pursu ant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article ________, Sections ________ of the __________ Constitution to allow the defense to pro ceed first on voir dire, and to allow the defense a proper oppor tunity to rehabilitate any prospective juror who expresses reti cence when asked to kill _________________, a fellow human being. In support of his motion, __________________ states as follows: 1. In Witherspoon v. Illi nois , 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), the Supreme Court held that a defend ant's fundamental right to a fair and impartial jury would be violated if the prosecution were permit ted to exclude jurors who were opposed to the death pen alty, but who could otherwise vote to impose the State's death penalty statute under certain circum stances. The Court found that when the State "[swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrali ty" by creating a jury which was "[uncommonly will ing to condemn a man to die" - - i.e ., a jury un representative of the community from which it was drawn. Id . at 520; see also Fuselier v. State , 468 So.2d 45 (Miss. 1985); Billiot v. State , 454 So.2d 445 (Miss. 1984), cert. de nied , 469 U.S. 1230 (1985) (quoting Armstrong v. State , 214 So.2d 589, 593 (Miss. 1968), cert. denied , 395 U.S. 965 (1969)). 2. When a juror comes into court for the first time, and is met with a barrage of questions concerning his or her "conscien tious scruples" against the death penalty, there is a strong probability that the jury may be led astray by sophistic legal questioning, and be excluded in violation of Witherspoon . For example, in Phenizee v. State , 178 So. 579 (Miss. 1938), the Court held: The ponderous interrogatory put by trial judges, "Have you any conscientious scruples against the infliction of capital punishment," is often not understood in its full import by a prospective juror, as every experienced attorney has witnessed. Id. at 581-82. For this reason, it is black letter law that to strike those who express hesitancy over imposing the death penalty without allowing the defense to voir dire them violates Witherspoon and Fuse lier . See Hansen v. State , ___ So.2d ___, No. 89-DP-0823, Slip Op. at 18 (Miss. 1991); Burns v. Estelle , 592 F.2d 1297, 1301 (5th Cir. 1979), aff'd en banc , 626 F.2d 396 (5th Cir. 1980). 3. However, this does not go far enough. The skillful prosecutor may sufficiently muddle the honest juror that, by the time that the juror is questioned by the defense, it may seem that the Witherspoon standard has been met. The prosecution has no right either to improperly exclude jurors, or even to properly retain others; the defendant is the one to whose benefit the constitutional right to a fair and impartial jury inures. Indeed, in Stanley v. Zant , 697 F.2d 955 (11th Cir. 1983), the Court held that there is "an asymmetry weighted on the side of mercy." Id. at 960. In order to assure that jurors are not improperly excluded, then, the jurors should first be voir dired by the defense, and then the prosecution. WHEREFORE, ______________________ 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 __________ ______.