In focus this week is the Louisiana Indigent Defense Board (http://www.lidb.com) and its online motion bank.

In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court recently summarized the relevant law on Brady violations. The Court reaffirmed the rule that "'a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. at 433 n.7 (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)). It is settled that there exists no difference between exculpatory and impeachment evidence for Brady purposes. Id. at 433. Of course, our conclusion that we must defer to the factual findings of the state courts necessarily requires that we deny Petitioner relief on the basis of his Brady claims. These factual findings establish, among other things, that Armstead "received no bargain or deal from the State in return for his testimony," that "Petitioner has submitted no credible evidence suggesting that Ronald Armstead lied, or that would result in the probability of a different outcome at a second trial," and that "[n]o evidence favorable to the defendant [i.e. Petitioner] was suppressed by the State." JA at 1874, 1878. 

 We also reject Petitioner's argument that Armstead's testimony that he had no charges pending at the time of Petitioner's trial violated Brady. The record indicates that the prosecution provided defense counsel with a copy of Armstead's record. The record which Petitioner attached to his "Petition to Vacate or Set Aside Sentence: R.C. Section 2953.21" indicates "015Y" (fifteen years) across from the date of disposition of Armstead's felonious assault conviction and "005Y" (five years) across from the date of disposition of his drug trafficking conviction. The record states the date that the fifteen and five years were imposed as "Date Disp. 11/25/80." Armstead's record also noted, among other things, prior convictions for assault with intent to rape, sodomy, and assault and battery. Although it should have been obvious from his record that Armstead was on some form of parole when he was arrested in December 1982, defense counsel never questioned Armstead regarding whether his parole status would be adversely affected by the six-month sentence he received in March 1983 following his plea of guilty to assault and attempted petty theft. This Circuit has held that "[n]o Brady violation occurs 'where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source.'" See Workman v. Bell, 178 F.3d 759, 767 (6th Cir. 1998) (quoting United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991)), cert. denied, 120 S.Ct. 264 (1999). This principle applies in the impeachment context as well, as there exists no difference for Brady purposes between exculpatory and impeachment evidence. See Kyles, 514 U.S. at 433. Under these circumstances, it is difficult to conclude that Armstead's testimony violated Brady. The prosecution provided Petitioner's defense counsel with sufficient information to enable counsel to question Armstead regarding his status at the conclusion of his six-month sentence in the Cincinnati Workhouse. The fact that defense counsel failed to do so was no fault of the State.

In any event, in order to establish a claim of prosecutorial misconduct or denial of due process, the defendant must show that the statement in question was false, that the prosecution knew it was false, and that it was material. See United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989); United States v. O'Dell, 805 F.2d 637, 641 (6th Cir. 1986). Moreover, the defendant must show that the statement in question was "indisputably false," rather than merely misleading. Lochmondy, 890 F.2d at 823. Here, we simply cannot say that Armstead's statement that he did not have any charges pending at the time of Petitioner's trial was "indisputably false." Armstead certainly was not facing any criminal charges when he testified in Petitioner's case. At the time of trial in August 1983, Armstead was nearing completion of his six-month sentence at the Cincinnati Workhouse that he had received in March 1983. In our view, Armstead's answer indicates that he interpreted defense counsel's question as referring specifically to criminal charges and not as encompassing the parole revocation hearings he would face at the end of his six-month sentence at the Cincinnati Workhouse.(31) Tr. at 1569 ("I got my time in March the 15th and I don't have no time pending or nothing else pending.").(32) Moreover, the prosecutor himself appears to have interpreted defense counsel's question to refer to criminal charges. Tellingly, when defense counsel asked Armstead about any pending charges, the prosecutor objected, stating "[w]e have been over that." Tr. at 1569. In lodging his objection, the prosecutor obviously was referring to defense counsel's previous cross-examination of Armstead regarding his criminal history. This indicates that the prosecutor did not know that Armstead's testimony was "false," another requirement for a Brady violation. 

Nor are we inclined to find that the statement was material. In United States v. Avellino, 136 F.3d 249, 257 (2nd Cir. 1998), the Second Circuit remarked: "where the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material." We already have noted the extensive amount of impeachment information that Petitioner's counsel elicited during his cross-examination of Armstead. This information included, among other things, Armstead's then-current incarceration in the maximum security area of the Cincinnati Workhouse, as well as his conviction within the preceding ten years of an offense carrying a sentence of more than one year in prison. Hence, Armstead's credibility had been seriously questioned. To be sure, defense counsel certainly could have asked Armstead whether he was facing a parole revocation hearing after the completion of his sentence in the Workhouse. However, if defense counsel had asked such a question, the prosecution presumably would have responded on re-direct examination by asking Armstead whether he had entered into any type of agreement with the prosecution concerning its assistance at his upcoming hearing. There would not have been anything further to explore; as the state courts found, there was no evidence that Armstead had struck any sort of a deal with the prosecution prior to his testimony at Petitioner's trial.

In our view, Armstead had been subjected to extensive impeachment by defense counsel, and it is difficult to conclude that there exists a reasonable probability that, had the issue of Armstead's upcoming parole hearing been disclosed, the outcome in Petitioner's trial would have been different. See Kyles, 514 U.S. at 433-34; United States v. Bagley, 473 U.S. 667, 678 (1985); cf. Agurs, 427 U.S. at 109 ("The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense."). In short, we simply cannot say that this evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435.

For the foregoing reasons, we reject Petitioner's claims of Brady violations in this case.

Jones, J. Dissenting

 This dissent is compelled by the majority's validation of the unpardonable constitutional improprieties present in this record. The effect of this validation is an intolerable abandonment of substantive and procedural principles deeply rooted in Anglo Saxon and American constitutional jurisprudence. Stated in its most simple form, these principles are designed to protect individual rights from constitutional shortcuts. I dissent here because rather than upholding these principles, as courts are sworn to do, a grievous breakdown has occurred.

The ultimate penalty - death - hovers ominously over this case, and this reality leads me to set forth several postulates. Democracy defends itself from anarchy by the degree it exalts process over passion. The supremacy of due process over raw emotion is even more compelling when government contemplates assuming the power to kill. Jurists most often find themselves in the cross-hairs of popular rage when confronted with constitutional infirmity in capital cases. In no other arena of civic decision-making is it more imperative that public officials operate with detachment. Judge Cranch, with unsurpassed clarity, spoke to the necessity of judicial impartiality in charged circumstances when he declared during Aaron Burr's 1807 treason trial: "The Constitution was made for times of commotion. . . dangerous precedents occur in dangerous times. It then becomes the duty of the judiciary calmly to poise the scales of justice, . . . undisturbed by the clamor of the multitude." 
 

Examining Petitioner John Byrd's claims with the requisite judicial sobriety exposes serious and egregious instances of prejudicial error which, if uncorrected, will lead to his execution. It is beyond refutation that the State secured Byrd's death sentence in contravention of fundamental constitutional guarantees of due process, fundamental fairness, and effective assistance of counsel. These errors require an issuance of the writ or, at least, a remand for limited discovery. Anything less is a gross and irrevocable miscarriage of justice, as the stark and chilly choice here is between due process or death. Out of a deeply held belief that the option compelled by the Constitution is clear, I now set forth my dissenting views.

Reinhardt, J,.  dissenting:

The sweat lodge ceremony is a central part of Native American religion. An authoritative treatise describes it as follows:

This ceremony is nearly universal among American Indian tribes, from coast to coast and in Alaska, across Canada and Mexico today. A sweat bath is one of the main ways by which ritual purification is achieved. . . . The sweat lodge ceremony serves several purposes. It is a religious rite to purify the body and a medical treatment to cure ailments or to prevent ill health by influencing the spirits. . . . The sweat bath ceremony is such a central part of the religious beliefs and rites of tribes that it is inconceivable that an Indian could practice his religious life in the traditional Indian way without having ccess to a sweat lodge. . . .

Arlene B. Hirschfelder & Paulette Morin, The Encyclopedia
of Native American Religions 287 (1992). . . 

Indeed, over the last ten years Rich repeatedly pursued administrative remedies at San Quentin Prison to record formally his religious identity and exercise his Native American beliefs. In its brief to this court, however, the state exhibited a bizarre attitude toward the subject of religion in general and Native Americans' beliefs in particular. The California Attorney General's office argued that the religious beliefs the condemned man adhered to were "incapable of either proof or refutation," and "secular authorities, such as the prison Warden, cannot be required, on faith, to accept risks to prison
security and the personal safety of others, in order to satisfy these kinds of belief" (emphasis added).  One wonders whether the Attorney General would make the "incapable of proof or refutation" argument regarding the last rites of major religions. After all, no religious beliefs of which I am aware are susceptible of objective proof or refutation. One also wonders, of course, what "these kinds of belief" implies with respect to the particular religious practices of Native Americans. . . .

This analysis, however, overlooks the extraordinary circumstances of this case and the transparent weakness of the state's purported concerns. Rich's request did not challenge the CDC regulation generally. Rather, he sought a one-time departure from the regulation, based on his impending execution, his specific spiritual beliefs regarding the need for predeath purification through a sweat lodge ceremony, and the availability of a functioning sweat lodge on the grounds of  San Quentin State Prison. The officials' general security rationale for their treatment of "Maximum A" inmates did not provide a reasonable basis for denying Rich's specific preexecution request. . . .

The prison officials raised a host of additional security concerns regarding the sweat lodge ceremony itself. They argued that weapons could be concealed in the small and dark interior of the lodge. It is undisputed, however, that trained prison guards would have been able to conduct an exhaustive search of the sweat lodge area and strip search Rich and his spiritual advisors prior to the ceremony's commencement. The officials argued that the ceremony would require the removal of Rich's restraints, but Rich conceded that officials could keep him restrained throughout. Prison doctors, it should be noted, classified Rich as "permanently mobility impaired " due to severe arthritis and degenerative disc disease. He could barely walk and had to be transported to visits in a wheelchair. Since approximately 1980, officials at San Quentin have regularly supervised sweat lodge ceremonies for inmates not designated as "Maximum A" custody, apparently without incident. These ceremonies have involved dozens of inmate participants at a time. It is thus clear that San Quentin officials would have been able to maintain complete control over a pre-execution ceremony involving just Rich and his two spiritual advisors.

The district court's application of Turner elevated ordinary and manageable security concerns over Rich's extraordinary need to exercise his fundamental religious beliefs before his execution. If the state is to perform the function of ending people's lives (which may or may not be a proper function for it to perform), the least it can do is to allow those it kills to comply with the tenets of their religion before it dispatches them to whatever follows. Certainly it should not deny them the right to engage in their most fundamental religious rites by asserting the argument that religious beliefs are "incapable of either proof or refutation." I dissent.
 

Kozinski, J., dissenting:

Darrell Keith Rich was a very bad man. For the horrible crimes he unquestionably committed against innocent girls and women, mothers and daughters; for the suffering he caused them and their families; for the terror he inflicted on the people of Cottonwood, he amply deserved to die. But no man should be sent to his Maker without being allowed to
take the spiritual steps he considers necessary to prepare for the event. A decent respect for the humanity of even the worst among us obligates us to accommodate such rituals where doing so will not impair serious governmental interests. This obligation is not diminished because the ritual does not involve a minister, a priest or a rabbi.

As explained in Judge Reinhardt's dissent, the state made no credible showing that its interests would be impaired by allowing Rich and his spiritual advisors to participate in the sweat lodge ceremony. Indeed, the arguments contrived by the Attorney General to defeat Rich's request cast doubt on the professional candor of the lawyers who presented them.

An imminent execution sorely tests the limits of professionalism among lawyers. Exaggerated arguments are, unfortunately, too common. While it is always troubling to see lawyers stretch the bounds of advocacy, it is far more so when it is done by lawyers for the state. As the Supreme Court noted many years ago, a prosecutor is "the representative not
of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other grounds, Stirone v. United States, 361 U.S. 212 (1960).

Because Clagett filed his federal habeas petition after the effective date of the Anti-terrorism and Effective Death Penalty Act's ("AEDPA") enactment, the AEDPA amendments apply to Clagett's petition. See Mueller v. Angelone, 181 F.3d 557, 565-69 (4th Cir.), cert. denied, 120 S. Ct. 37 (1999). 
 
In the present case, Clagett's claim that the trial court erred by not instructing the jury on his parole eligibility was adjudicated on the merits by the Virginia Supreme Court. See Clagett, 472 S.E.2d at 272. Therefore, under the AEDPA, we are not permitted to grant habeas relief unless the state adjudication on the merits"resulted in a deci- sion that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). 
 
During its sentencing deliberation on Clagett's non-capital convic- tions, the jury asked the trial court in part "what does life imprison- ment mean in the law as it relates to parole?" J.A. 235. The trial court responded that the jury should "impose such punishment as [it felt was] just under the evidence" and "not to concern [itself] with what might happen afterwards." J.A. 234. Clagett objected that the jury "should be instructed that the sentences run consecutively." J.A. 232. 
 
Clagett argues before us that the trial court erred when it did not provide the jury with a "Simmons instruction," after the jury asked for clarification regarding parole. In Simmons v. South Carolina, 512 U.S. 154 (1994), a plurality of the Supreme Court held that where "the jury reasonably may have believed that petitioner could be released on parole if he were not executed" because the trial court refused to permit the defendant "to provide the jury with accurate information regarding petitioner's parole ineligibility," and the state argued "that petitioner would pose a future danger to society if he were not executed," the state denied the petitioner due process. Id. at 161-62; see also Townes v. Murray, 68 F.3d 840, 851 (4th Cir. 1995) (explaining that Simmons holds "only that, when the state puts a capi- tal defendant's future dangerousness in issue, the trial court may not both refuse a defendant's request that it instruct the jury on his parole ineligibility and prevent defendant from arguing that same point to the jury"), cert. denied, 516 U.S. 1100 (1996). Therefore, Clagett presum- ably wished the jury to be instructed that he was ineligible for parole. Clagett also now argues that he was parole ineligible under Virginia's three-strikes provision, see Va. Code § 53.1-151(B1) ("Any person convicted of three separate felony offenses . . . when such offenses were not part of a common act, transaction or scheme shall not be eli- gible for parole."), because his four murders were not part of a common act. 
 
The question before this court is whether Clagett was parole ineli- gible. If he was not parole ineligible, then a Simmons instruction was not required and the trial court did not err when it refused to provide such an instruction. The Virginia Supreme Court on direct review held that Simmons was inapplicable because"Clagett failed to estab- lish and the record does not show that he was parole ineligible." Cla- gett, 472 S.E.2d at 272. The district court held that the Virginia Supreme Court's finding that Clagett failed to establish that he was parole ineligible was not an "unreasonable determination of the facts." See 28 U.S.C. § 2254(d)(2). As the district court explained, "[w]hile [Clagett] was convicted of over three separate felony offenses of mur- der, it is not unreasonable to conclude that the murders were . . . `part of a common act, transaction or scheme.'" 
 
We agree with the district court that the Virginia Supreme Court's finding that Clagett was not parole ineligible was not unreasonable. Under Virginia's three-strikes provision, felony offenses that were "part of a common act, transaction or scheme" do not count as sepa- rate felony offenses. Va. Code § 53.1-151(B1). Clagett does not even attempt to articulate how his murder of four individuals on the same night within minutes of each other, in the same bar, during the same robbery, with the same gun and the same accomplice, could be any- thing but "part of a common act, transaction or scheme." And, given the Virginia Supreme Court's decision in Fitzgerald v. Common- wealth, 455 S.E.2d 506 (Va. 1995), Clagett's murders were clearly part of a common act. In Fitzgerald, the defendant had kidnapped a girl, then robbed and murdered her father, driven the girl to the woods and raped her, then taken a taxi cab to a second woman's home after killing the taxi cab driver, and had kidnapped and raped the second woman after having taken her to a hotel. The Virginia Supreme Court held that all of those crimes, although committed in different places and over the course of many hours, were part of a common act for purposes of the three-strikes provision. 

We recognize that the United States Supreme Court has granted a writ of certiorari in another Virginia capital case involving the Simmons instruction, see Ramdass v. Angelone, 187 F.3d 396 (4th Cir. 1999), cert. granted in part, 120 S. Ct. 784 (2000). However, we are satisfied that the disposition in that case will not alter our conclusion here. In Ramdass, at the time the jury was deliberating in the sentenc- ing phase of his capital conviction for murder, Ramdass had been convicted of and sentenced for one armed robbery. And, a jury had returned a verdict finding Ramdass guilty in a second armed robbery, but the court had not yet entered judgment in that case. The trial court did not instruct the jury as to Ramdass's parole ineligibility under Virginia's three-strikes provision. 

On remand from the Supreme Court after its decision in Simmons, the Virginia Supreme Court held that although the first armed rob- bery, and the murder conviction (which was the subject of the appeal), were both predicate offenses for the three-strikes provision, the second armed robbery verdict for which no judgment had yet been entered was not a "conviction" under Virginia law and the three- strikes provision. Therefore, at the time the Simmons-type instruction was requested during jury deliberation on sentencing for the murder conviction, Ramdass was not parole ineligible under Virginia law. 

In federal habeas proceedings in this court, Ramdass argued that this court should reject Virginia's technical determination of parole ineligibility and adopt a pragmatic, common sense determination of parole ineligibility for purposes of invoking the Simmons instruction. See 187 F.3d at 405. This court, however, refused to adopt a func- tional determination of parole ineligibility and deferred to the state law understanding of parole ineligibility. See id. ("When Ramdass argues that Simmons' applicability is not conditioned on `a state's determination of "parole ineligibility" at the moment of capital sen- tencing' but rather on a nonlegalistic `common-sense [im]possibility of parole,' he advances a new interpretation of Simmons that is simply incompatible with the logic of Simmons itself."). Additionally, this court held that "parole eligibility is a question of state law and there- fore is not cognizable on federal habeas review." Id. at 407. 

The Supreme Court, then, will be reviewing two aspects of the Ramdass decision: "Does the rule in Simmons turn on the actual oper- ation of state law, or on its hypertechnical terms; and must a federal habeas court adjudicating a Simmons claim make its own analysis of the functional consequences of state law, or is it bound by the state courts' characterization of state law for federal constitutional pur- poses?" On the first question, in Clagett's case, there is no "hyper- technical" interpretation of the three-strikes provision, and Clagett makes no argument in this federal habeas proceeding that any reading of Virginia parole law would have made him technically eligible but functionally ineligible for parole at the time the jury was deliberating in the sentencing phase of his non-capital charges. 

Likewise, as to the second question, whether this court can conduct its own analysis of the functional consequences of state law, or is bound by the state court's characterization of state law, Clagett has not articulated how a federal court determination of the functional consequences of Virginia state law could diverge in this case from the state courts' characterization of that same state law. We are confident that even if the Supreme Court were to hold that we must undertake our own analysis of the functional consequences of state law, Cla- gett's claim that he was parole ineligible would fail. As explained above, Clagett's murder of the four people at the Witchduck Inn was clearly a common act or transaction under Virginia's three-strikes provision, particularly in light of Fitzgerald . 
 

Therefore, the Virginia Supreme Court did not err in finding that Clagett failed to show he was parole ineligible and thus in holding that a Simmons instruction was unnecessary. We do not believe that Clagett could, under any level of independent federal review, make a colorable claim that his murders were not part of a common act. Because Clagett was parole eligible, no Simmons instruction was required. 

On its face, article 930.8A is arguably a time-based procedural filing requirement of the sort which, under Villegas, would render an application dismissed on that basis as having been not "properly filed". See Villegas, 184 F.3d at 469 ("a properly filed application is one submitted according to the state's procedural requirements, such as the rules governing ... the time and place of filing" (emphasis added; internal quotation marks and citation omitted)). On the other hand, article 930.8A, like the Texas successive writ statute at issue in Villegas, does not impose an absolute bar to filing; instead, it limits the state court's ability to grant relief.

Under article 930.8A, Louisiana courts will accept a prisoner's application for filing and review it to determine whether any of the statutory exceptions to untimely filing are applicable. If the untimely application does not fit within an exception, the state court will dismiss it. See State v. Parker, 711 So. 2d 694, 695 (La. 1998) (denying untimely application for post-conviction relief because statutory exceptions inapplicable).
 

Because the procedure established by article 930.8A is virtually identical to that under Tex. Code Crim. P. art. 11.07, § 4, we conclude that, consistent with Villegas, Smith's state application, although ultimately determined by the state court to be time-barred, nevertheless was "properly filed" within the meaning of § 2244(d)(2). Accordingly, the one-year period for seeking federal habeas relief was tolled during the pendency of that state application, making timely the federal application filed in January 1998.

Ellis v. Bolin (8th Cir)  Challenge to procedures used in disciplinary hearing was not barred by Heck v. Humphrey, 512 U.S. 477.

MOTION TO PRECLUDE THE DISTRICT ATTORNEY'S OFFICE FROM SEEKING THE DEATH PENALTY AGAINST MR. CLIENT 

MOTION TO QUASH AS UNCONSTITUTIONAL THE LOUISIANA CAPITAL MURDER STATUTE 

MOTION TO BAR DEATH PENALTY AS CRUEL, UNUSUAL AND DEGRADING PUNISHMENT 

MOTION TO PRECLUDE THE DEATH PENALTY ON THE GROUNDS OF RACIAL DISCRIMINATION 

MOTION TO ASSURE THAT MITIGATING CIRCUMSTANCES RECEIVE THEIR DUE WEIGHT AND ATTENTION FROM THE JURY 

NOTICE OF INTENT TO INTRODUCE CO-INDICTEES' SENTENCES 

MOTION FOR JURY VIEW OF THE EXECUTION PROCESS 

NOTICE OF INVOLVEMENT 

DEMAND FOR NOTICE OF AGGRAVATING CIRCUMSTANCES 

JACKSON DEMAND FOR NOTICE OF ANY BAD ACTS THAT THE STATE MAY WISH TO USE AT EITHER PHASE 

DEMAND FOR BERNARD NOTICE & MOTION FOR DISCOVERY OF INFORMATION RELATING TO THE LESS AUSPICIOUS ASPECTS OF THE REPUTATION OF THE DECEASED IN THIS CASE 

MOTION TO STRIKE INAPPLICABLE AGGRAVATING CIRCUMSTANCES 

MOTION TO PRECLUDE THE STATE FROM RELYING ON ANY NON-STATUTORY AGGRAVATING CIRCUMSTANCES 

MOTION TO PRECLUDE THE STATE FROM INTRODUCING VICTIM-IMPACT EVIDENCE 

MOTION TO PRECLUDE MR. CLIENT'S EXECUTION ON THE BASIS OF INACCURATE SPECULATION CONCERNING PAROLE 

MOTION TO EXCLUDE EVIDENCE OF PRIOR BAD ACTS 

MOTION TO BAR INTRODUCTION OF ANY EVIDENCE RELATING TO UNCONSTITUTIONAL PRIOR CONVICTION 

MOTION TO REQUIRE THE PROSECUTION TO RESPOND IN WRITING TO EVERY WRITTEN MOTION FILED BY THE DEFENSE 

MOTION FOR COMPLETE RECORDATION OF ALL PRE-TRIAL AND TRIAL PROCEEDINGS 

MOTION FOR LIMITED DAILY TRANSCRIPTS 

ASSERTION OF RIGHT TO BE PRESENT 

MOTION TO PRECLUDE MR. CLIENT FROM BEING SHACKLED IN PUBLIC 

MOTION TO ALLOW ACCUSED TO APPEAR AT PRETRIAL HEARINGS AND TRIAL IN CIVILIAN CLOTHES, FOR FUNDS TO PURCHASE CLOTHES 

MOTION TO REQUIRE CONSTITUTIONAL INCARCERATION 

MOTION TO ENJOIN THE VICTIM'S FAMILY AND FRIENDS FROM SITTING DIRECTLY BEFORE THE JURY AND SHOWING EMOTION IN THE COURTROOM DURING THE TRIAL 

MOTION TO PRECLUDE UNIFORMED POLICE OFFICERS FROM ATTENDING THE PROCEEDINGS AGAINST MR. CLIENT AND LIMIT THE SHOW OF FORCE IN THE COURTROOM 

MOTION FOR BAIL AND/OR A PRELIMINARY HEARING 

MOTION TO SEQUESTER WITNESSES PRIOR TO AND DURING THE TRIAL OF THIS CASE 

MOTION TO ENJOIN THE PROSECUTION FROM INFORMING WITNESSES AS TO WHAT OTHER WITNESSES MAY HAVE SAID OR FROM PREPPING ITS WITNESSES TOGETHER 

MOTION TO ADJOURN AT A REASONABLE TIME 

NOTICE OF INTENTION TO FILE OTHER MOTIONS 

EX PARTE MOTION FOR APPOINTMENT OF TWO COUNSEL 

MOTION FOR ADEQUATE COMPENSATION OF COUNSEL 

MOTION FOR PERMISSION TO PROCEED EX PARTE ON APPLICATIONS FOR FUNDS 

EX PARTE MOTION FOR FUNDS FOR EXPERT ASSISTANCE IN THE FIELDS OF PSYCHIATRY/PSYCHOLOGY AND MITIGATION INVESTIGATION 

MOTION FOR PERMISSION TO PROCEED EX PARTE ON APPLICATIONS FOR OUT-OF-STATE WITNESSES 

EX PARTE MOTION FOR OUT-OF-STATE WITNESS 

ORDER 

CERTIFICATE OF MATERIALITY 

MOTION FOR ORDER ALLOWING ACCESS TO PHYSICAL EVIDENCE 

MOTION FOR DISCOVERY OF INFORMATION CONCERNING THE DNA TESTING PERFORMED IN THIS CASE 

MOTION TO EXCLUDE LATTER-DAY VOODOO SEROLOGY EVIDENCE PROPOSED BY STATE EXPERTS 

MOTION TO EXCLUDE BOGUS STATISTICAL EVIDENCE PROPOSED BY STATE EXPERTS 

MOTION TO SUPPRESS HAIR RESULTS (IS THIS NINETEENTH CENTURY SCIENCE OR TWENTIETH CENTURY VOODOO?) 

MOTION FOR DISCLOSURE OF ANY POSSIBLE BASIS OF JUDICIAL RECUSAL 

MOTION FOR JUDICIAL RECUSAL 

MOTION FOR DISCOVERY OF ANY POSSIBLE BASIS FOR DISQUALIFICATION OF THE PROSECUTING ATTORNEY 

MOTION FOR DISCOVERY OF INFORMATION NECESSARY TO A FAIR TRIAL 

MOTION TO REVEAL THE DEAL 

MOTION TO REVEAL LAW ENFORCEMENT REPORTS 

MOTION TO REVEAL RAP SHEETS AND NCIC REPORTS 

DEMAND FOR DISCOVERY OF EVIDENCE RELEVANT TO POSSIBLE MITIGATING CIRCUMSTANCES 

MOTION TO SUPPRESS STATEMENTS 

MOTION TO SUPPRESS EVIDENCE 

MOTION TO SUPPRESS EVIDENCE SEIZED AFTER ILLEGAL ARREST 

MOTION TO SUPPRESS IDENTIFICATION EVIDENCE 

MOTION TO SUPPRESS PSYCHIATRIC EVIDENCE 

MOTION TO PRECLUDE CREATION OF SNITCH TESTIMONY 

MOTION TO EXCLUDE ACCOMPLICE/SNITCH TESTIMONY 

MOTION TO CONTROL PREJUDICIAL PUBLICITY 

ORDER 

MOTION FOR CHANGE OF VENUE 

MOTION FOR CONTINUANCE 

MOTION TO REMEDY PROSECUTORIAL ABUSE 

MOTION FOR A TRANSCRIPT OF THE GRAND JURY PROCEEDINGS OR TO DISMISS THE INDICTMENT, OR: THE GRAND JURY WAS ORIGINALLY INTENDED TO PROTECT THE ACCUSED, AND IT IS TIME TO TAKE IT BACK 

MOTION TO DISMISS THE INDICTMENT ON ACCOUNT OF ABUSE OF THE GRAND JURY PROCESS 

MOTION TO QUASH THE INDICTMENT 

PRELIMINARY MOTION TO QUASH THE INDICTMENT AND CHALLENGE TO THE COMPOSITION OF THE GRAND AND PETIT JURIES 

MOTION TO QUASH INDICTMENT AND CHALLENGE TO COMPOSITION OF GRAND AND TRAVERSE JURY POOLS 

MOTION TO QUASH THE INDICTMENT ON ACCOUNT OF DISCRIMINATION IN THE SELECTION OF GRAND JURY FOREPERSONS 

MOTION FOR INDIVIDUAL SEQUESTERED VOIR DIRE 

MOTION FOR ADEQUATE SEQUESTRATION OF JURORS 

MOTION TO PRECLUDE THE STATE FROM USING PEREMPTORY CHALLENGES TO EXCLUDE POTENTIAL JURORS ON THE BASIS OF THEIR RACE 

MOTION TO PRECLUDE THE STATE FROM USING PEREMPTORY CHALLENGES TO EXCLUDE POTENTIAL JURORS ON THE BASIS OF THEIR GENDER 

MOTION TO SERVE JURY SUMMONS BY MAIL AND TO FORBID THE EXTRAJUDICIAL EXCLUSION OF ANY JUROR 

MOTION FOR JURY QUESTIONNAIRE 

JUROR INFORMATION QUESTIONNAIRE 

MOTION FOR COMPENSATION OF JURORS AT CURRENT WAGES AND FOR REIMBURSEMENT TO PRIMARY CAREGIVERS FOR DAY CARE COSTS 

MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES 

PETITION FOR SUPERVISORY WRITSTO VACATE ILLEGAL TRIAL DATE AND TO ALLOW A REASONABLE TIME TO PREPARE FOR TRIAL 

APPLICATION FOR SUPERVISORY WRITS TO REVIEW ORDER DENYING MOTION TO BAR PROSECUTION UNDER DOUBLE JEOPARDY CLAUSE 

MOTION TO PRODUCE NEGATIVES 

MOTION TO SUPPRESS GRUESOME GUILT PHASE PHOTOGRAPHS & EVIDENCE 

MOTION TO SUPPRESS GRUESOME PENALTY PHASE PHOTOGRAPHS & EVIDENCE 

NOTICE OF PROPOSED STIPULATION 

MOTION TO PROHIBIT PROSECUTORIAL MISCONDUCT 

MOTION TO LIMIT REBUTTAL ARGUMENT 

MOTION TO PRECLUDE PROSECUTION FROM CHANGING HORSE IN MIDSTREAM 

NOTICE OF INTENTION TO USE PRIOR STATEMENTS OF GOVERNMENT REPRESENTATIVES AS SUBSTANTIVE EVIDENCE IN THIS CASE 

MOTION TO REQUIRE THE STATE TO FURNISH PROPOSED JURY INSTRUCTIONS TWENTY-FOUR HOURS PRIOR TO TRIAL 

OBJECTIONS TO THE STATE'S CENTRAL SENTENCING INSTRUCTION 

MOTION FOR PROCESS INSTRUCTIONS 

SAMPLE CULPABILITY JURY INSTRUCTIONS 

SAMPLE PENALTY JURY INSTRUCTIONS 
 

Recently, questions about capital punishment have come from some unusual sources:

"I think a [death penalty] moratorium would indeed be very appropriate." 
           -Rev. Pat Robertson, speaking at a symposium on religion and the death penalty at the College of William and Mary. (Washington Post, 4/8/00)

"Horror, too, is a reasonable response to what Barry Scheck, Peter Neufeld and Jim Dwyer demonstrate in Actual Innocence: Five Days to Execution and Other Dispatches from theWrongly Convicted. You will not soon read a more frightening book. It is a catalog of appalling miscarriages of justice, some of them nearly lethal. Their cumulative weight compels the conclusion that many innocent people are in prison, and some innocent people have been executed. 
           -George F. Will, "Innocent on Death Row," (Washington Post, 4/4/00)

 "[Death penalty opponents] came up with a new approach. It was less moralistic - no candles, please. It relied on new ways of using the media. And it was designed to appeal to the public's sense of fairness without appearing squishy on violent crime. So far, it's been a smashing success." 
           -Byron York, "The Death of Death," The American Spectator, April 2000 
 

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As always, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.
 

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ISSN: 1523-6684   Volume III, issue 14