(#)

IN THE XXXX JUDICIAL DISTRICT COURT

PARISH OF XXXXX

STATE OF LOUISIANA

STATE OF LOUISIANA,
Plaintiff
v.
XXXXXX
Defendant / )
)
)
)
)
)
) / No. XXXXX,
Div. XXXXX
Judge XXXXXX, Presiding
FILED:______/ DEPUTY CLERK: ______

MOTION FOR PRODUCTION OF FAVORABLE EVIDENCE

RELATING TO PUNISHMENT

COMES NOW,XXXXX, through undersigned counsel, and moves this Court, pursuant to the 5th, 6th, 8th and 14th Amendments to the United States Constitution, Article 1, Sections 2, 3, 5, 13, 14, 16, 17, 19, 20, 22, and 24 of the Louisiana Constitution,and other applicable law, to enter an order directing the prosecution to make prompt and timely disclosure of all evidence favorable to him relating to punishment.

As grounds, counsel states:

  1. Mr. XXXXX was convicted on XXXXX for the offense of XXX degree murder. Mr. XXXX’s date of birth is XXXXX and the state alleges that the offense was committed on XXXXXX. Mr. XXXX was a child at the time of the alleged offense.
  2. Montgomery v. Louisiana, decided in January of 2016, made the United States Supreme Court’s 2012 decision of Miller v. Alabama applicable to Mr. XXXX. --- U.S. ---, 136 S. Ct. 718, 736 (2016). Under Miller and Montgomery, Mr. XXX is entitled to a new sentencing hearing. Id.; 567 U.S. ---, 132 S. Ct. 2455, 2460 (2012).
  3. By this motion XXXXX moves for production and discovery of any and all evidence favorable to him on the question of punishment, as more fully described in the paragraphs which follow.
  4. The Due Process Clause of the Fourteenth Amendment entitles XXXXXXto the prompt production of all favorable evidence. Notably, the Brady doctrine contemplates disclosure of evidence favorable "either to guilt or to punishment . . . ." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194(1963) (emphasis added). Indeed, Mr. Brady himself was awarded relief from his sentence, not his murder conviction. "[I]t would be too dogmatic for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady." 373 U.S. 88 (emphasis supplied by Supreme Court, quoting opinion of Maryland Court of Appeals).
  5. The United States Supreme Court views a sentence of life without parole for a child “akin to the death penalty” and has “treated it similarly to that most severe punishment.” Miller v. Alabama, 132 S.Ct. 2455, 2466 (2012). "In a capital case the definition of 'favorable evidence' expands at the sentencing stage to far beyond what it is at any stage of any other type of criminal proceeding." Ex Parte Monk, 557 So.2d 832, 837 (Ala. 1989). The same expansion applies when the state tries to impose on a child a sentence of life without parole. Miller at 2466.
  6. Louisiana law recognizes that the Brady doctrine obligates the prosecution to disclose evidence favorable to sentencing considerations. State v. Jackson, 608 So.2d 949, 958 (La. 1992), specifically holds that Brady obligates the prosecution to disclose evidence supporting statutory mitigating factors. Based on information that the prosecutor had suppressed favorable psychiatric evidence, the case was remanded with instructions to "order disclosure of any information favorable to the accused that is material to the plea of insanity in the guilt phase or to the mitigating circumstance of mental illness or defect in the sentencing hearing." Id. (emphasis added); seealsoState v. Felde, 422 So. 2d 370, 383-84 (La. 1982) (entitling defense to evidence "favorable to the defendant and material and relevant to the issue of guilt or punishment") (citing La.C.Cr.P. arts.718, 723); Calley v Callaway, 519 F.2d 184, 221 (5th Cir. 1975) (en banc) (“Brady requires the disclosure of material evidence favorable in the sense of mitigation") (emphasis supplied); Chaney v Brown, 730 F.2d 1334, 1357 (10th Cir. 1984) (finding withheld evidence, could have affected the jury's decision to impose the death sentence).
  7. The state's obligation to disclose evidence of mitigation does not apply simply to the mitigating circumstance of mental illness, which was specifically at issue in Jackson, but to any other that the defense may raise or assert at the sentencing hearing. The Louisiana Supreme Court has stressed the breadth of evidence admissible in mitigation. See, e.g., State v. Lee, 559 So.2d 1310, 1319 (La. 1990);State ex rel. Busby v. Butler, 538 So.2d 164, 172 (La. 1988) ("The defendant has the right to introduce virtually any evidence in mitigation at the penalty phase."); State v. Weiland, 505 So.2d 702, 707 (La. 1987) (finding reversible error where defendant denied permission to provide evidence that just before hemurdered his girlfriend, she told him she had never loved him and had only been using him to get her children back from state custody); seealso State v. Brown, 514 So.2d 99, 112 (La. 1987) (approving of trial court's jury instructions that jury not only consider statutory mitigating factors, but any other relevant circumstances that may mitigate the severity of the punishment); State v. Jones, 474 So.2d 919, 932 (La. 1985).
  8. A defendant may tender any evidence in mitigation so long as it is tethered to the crime or the offender. La.C.Cr.P. art.878.1(B); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978 (1976) (finding any of the "diverse frailties of humankind" constitute mitigating factors which must be considered as a matter of law in deciding punishment); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965 (1978) (holding the jury must consider "any aspect of the defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death); accordBell v. Ohio, 438 U.S. 637, 98 S.Ct. 438 U.S. 586(1978). The Louisiana Code of Criminal Procedure specifically contemplates “the facts and circumstances of the crime, the criminal history of the offender, the offender’s level of family support, social history,” however, itis explicit that mitigating evidence may include but is not limited to those areas. La.C.Cr.P. art.878.1(B). The prosecution must disclose any mitigation evidence as such has been defined by Woodson, Lockett, and their progeny.
  9. This necessarily includes, but again is not limited to evidence that:
  10. The offense was committed while the accused was under the influence of mental or emotional disturbance. See Art. 905.5(b); see alsoZant v. Stephens, 462 U.S. 862, 887, 103 S. Ct. 2733(1983); State v. Sullivan, 596 So.2d 177, 192 (La. 1992) ("Psychiatric mitigating evidence not only can act in mitigation, it also can significantly weaken the aggravating factors"); State ex rel.Busby v. Butler, 538 So.2d 164, 169 (La. 1988) (obligating counsel to investigate defendant's mental health history for possible mitigation evidence); State v. English, 367 So.2d 815, 819 (La. 1979); State v. Perry, 502 So.2d 543, 561 (La. 1986);
  11. The offense was committed while the accused was under the influence of another person. See Art. 905.5(c); seealso, e.g., State v. Sonnier, 380 So.2d 1, 8-9 (La. 1979) (including in "substantial" mitigating evidence the fact that defendant was a "mental and physical weakling" acting under his co-defendant brother's influence); State v. Glass, 455 So.2d 659, 666 (La. 1984) (recognizing fact that defendant committed crime while under influence or domination of another is mitigating circumstance).
  12. The offense was committed under circumstances which the accused reasonably believed to provide a moral justification or extenuation for his conduct.See Art. 905.5 (d).
  13. At the time of the offense the capacity of the accused to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.See Art. 905.5 (e). See section B above for a discussion of the importance of mitigating evidence stemming from mental problems. Seealso,State v. Hamilton, Zant v. Stephens, and State v. Sullivan, all supra. As for intoxication, the case law also recognizes the relevance of this sort of evidence in mitigation. State v. Prejean, 379 So.2d 240, 247-249 (La. 1979); State v. Williams, 383 So.2d 369, 374-75 (La. 1980); State v. Brogdon, 457 So.2d 616, 633 (La. 1984); State v. Loyd, 489 So.2d 898, 906-907 (La. 1986); State v. Lee, 524 So.2d 1176,1188 (1987).
  14. The accused was a principal whose participation was relatively minor.See Art. 905.5 (g).
  15. There are many other types of potential non-statutory mitigating evidence. The following are other examples of potential mitigating circumstances:
  16. Any evidence that might create a residual doubt as to Mr. XXXX’s guilt of the crime charged;
  17. Any evidence that Mr. XXXX has suffered from mental illness at any time in his life;
  18. Any evidence that Mr. XXXX is cognitively or functionally impaired to any degree;
  19. Any evidence that Mr. XXXX was suffering from unrelated but abnormal stressors at the time of the crime;
  20. Any evidence that Mr. XXXX has suffered in life as an alcoholic;
  21. Any evidence that Mr. XXXXX acted at the time of the crime under the influence of drugs or alcohol;
  22. Any evidence that Mr. XXXX has suffered in life as a drug addict;
  23. Any evidence that Mr. XXXX had an accomplice or accomplices substantially, equally or more responsible for the death of the victim;
  24. Any evidence that Mr. XXXX acted under duress or under any kind of influence by another person;
  25. Any evidence that Mr. XXXX has suffered abuse at any time in his life, at the hands of family members or anyone else. SeeEddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869 (1982) (vacating death sentence because state courts did not recognize that defendant’s troubled childhood was a mitigating factor);
  26. Any evidence that Mr. XXXX has tried to assist those less fortunate than himself;
  27. Any evidence that Mr. XXXX has displayed good behavior during the proceedings against him;
  28. Any evidence that Mr. XXXX has felt remorse for those things that he has done in his life that have been wrong;
  29. Any evidence that Mr. XXXX has been active in his church;
  30. Any evidence that Mr. XXXX has children for whom he has cared;
  31. Any evidence that Mr. XXXX has been a good parent;
  32. Any evidence that Mr. XXXX has friends and relatives who love him and do not want him to receive a sentence of life without parole;
  33. Any evidence that there are witnesses who desire that Mr. XXXX should not be sentenced to life without parole;
  34. Any evidence that Mr. XXXXX has written poetry or created art or music;
  35. Any evidence that Mr. XXXX has successfully adapted to prison life;
  36. Any evidence that Mr. XXXX suffered a chaotic, dysfunctional family life or that he was subject to emotional, mental, physical or sexual abuse.Evidence that an accused suffered through a chaotic family life or that he was victimized by emotional, mental, physical or sexual abuse is unquestionably relevant in mitigation of punishment. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869 (1982) (vacating death sentence because sentencer did not recognize that defendant's troubled childhood was a mitigating factor); Sullivan, supra, 596 So.2d at 191-192 (finding evidence that defendant was "raised in an abusive, alcoholic, often brutal environment" could have been put before a jury); State v. Cage, 554 So.2d 39, 44 (La. 1989) (recognizingdefendant's childhood and broken family life as mitigating evidence). Accordingly, any such evidence known by the State must be disclosed.
  37. Any evidence with "any tendency" to make "any fact" that "might serve as a basis for a sentence" less than life without parole "more probable." Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562(2004).
  38. Under Brady v. Maryland and its progeny, the constitutional obligation to disclose material that is favorable to the accused and material to the issue of guilt or punishment encompasses an obligation to conduct an affirmative investigation beyond the file of the prosecutor handling the case. That is, it is incumbent on counsel for the state to consult with other state agencies and review any of their relevant files in order to determine whether or not Brady material exists. SeeKyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case.”); Martinez v. Wainwright, 621 F.2d 184, 187 (5th Cir. 1980) (“The duty to produce requested evidence falls on the state; there is no suggestion in Brady that different ‘arms’ of the government are severable entities.”) (Brady violation found even where prosecutor did not know of witness’s rap sheet). The defense need not make any specific showing that Brady material exists in the following locations in order to trigger the state’s obligation. SeeState ex rel Walker v. State, 920 So.2d 213, 213 (La. 2006) (“Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material…”) (quotingBanks v. Dretke, 540 U.S. 668, 695, 124 S.Ct. 1256, 1275 (2004)).
  39. Mr. XXXX requests that any favorable evidence be promptly disclosed so that he may make use of it in planning trial strategy. State v. Prudholm, 446 So.2d 729, 738 (La. 1984) (“Disclosure by the state must be made at such atime to allow the defense to use the favorable material effectively in the presentation of its case") (citing omitted).

Conclusion

WHEREFORE, the defense requests production of all favorable evidence in connection with the issue of punishment.

Respectfully submitted on this the ___ day of______, XXXXX.

______

XXXXX

La. Bar No. XXXX

(#)

IN THE CRIMINAL DISTRICT COURT

PARISH OF XXXXX

STATE OF LOUISIANA

STATE OF LOUISIANA,
Plaintiff
v.
XXXXXXXX
Defendant / )
)
)
)
)
)
) / No. XXXXX, Div. XXXX
Judge XXXXX, Presiding
FILED:______/ ______

ORDER

Wherefore, premises considered, Mr. XXXX’s MOTION FOR PRODUCTION OF FAVORABLE EVIDENCE RELATING TO PUNISHMENT(#)is herebyGRANTED.

.

Signed this ______day of ______, XXXX.

______

Judge XXXXX

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