IN THE XXX JUDICIAL DISTRICT
PARISH OFXXX
STATE OF LOUISIANA
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STATE OF LOUISIANA )
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v.) Docket No.XXXX ) SectionXXXX
XXX)Judge XXX
Defendant.)
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FILED: ______DEPUTY CLERK: ______
Motion TO REQUIRE THE STATE TO PROVIDE NOTICE OF INTENt TO SEEK A SENTENCE OF LIFE WITHOUT PAROLE and to provide notice of the aggravating factors it intends to rely on in support of this sentence.
COMES NOWXXXXXX, through counsel, and respectfully moves this Court to require the state to provide notice prior well in advance of any sentence hearing if it intends to seeks a sentence of life without parole and to provide notice of the aggravating factors it intends to rely on in support of this sentence. In support, counsel states:
LAW AND ARGUMENT
On June 25, 2012, the United States Supreme Court declared that mandatory life-without-parole sentences for juveniles convicted of homicide violate the Eighth Amendment prohibition against cruel and unusual punishments. Miller v. Alabama, 567 U.S. ___ (2012). By its ruling, the Supreme Court reaffirmed its holdings in Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 560 U.S. 48 (2010) that the unique characteristics of children must be considered in the context of the Eighth Amendment: “youth is more than a chronological fact. It is a time of immaturity, irresponsibility, impetuousness[,] and recklessness. It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage. And its signature qualities are all transient.” Miller, 567 U.S. at ___ (slip op., at 13). Such observations led the Supreme Court to recognize that children are less morally culpable for the crimes they commit and are uniquely able to be rehabilitated and become productive members of society. As such, mandatory life sentences without the possibility of parole for children constitute cruel and unusual punishment.
Most recently, in Montgomery v. Louisiana, the Supreme Court clarified that Miller’s holding must be applied retroactively to juvenile offenders whose convictions and sentences were final when Miller was decided.--- U.S. ---, 136 S. Ct. 718, 736 (2016).Prior to the Court’s decisions in Miller and Montgomery, XXXwas convicted of second degree murder and sentenced to life in prison without the possibility of parole, a mandatory sentence under Louisiana law. See La. Stat. Ann. § 14:30.1(B). XXX was only XXX years old at the time of the crime. Thus, pursuant to the Supreme Court’s decision in Miller, XXX sentence violates the Eighth Amendment and cannot stand.
After Miller and Montgomery, a life without parole sentence will only be permitted in the “uncommon” homicide case involving “’the rare juvenile offender whose crime reflects irreparable corruption,’” Miller, 132 S. Ct. at 2469(citations omitted, emphasis added). In Miller, the Supreme Court states that life without parole sentences for children convicted of murder are to be a rarity; only to be meted when aggravating factors outweigh mitigating factors at an individualized sentencing hearing. Miller, 567 U.S. at ___ (slip op., at 17) (“[G]iven all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”).
If the state intends to assert that XXX is the “rare” and “uncommon” homicide offender and that his crime reflects “irreparable corruption” such that a life without parole sentence would be required,XXX is entitled to notice. The United States Supreme Court likened life without parole for juveniles to the death penalty for adults. Miller, 567 U.S. at ___ (slip op., at 7). Like the death penalty for adults, life without parole for children is the “ultimate punishment.” See Miller, 567 U.S. at ___ (slip op., at 7, 12) (“Graham further likened life without parole for juveniles to the death penalty itself”; “[B]ecause we view[] this ultimate penalty for juveniles as akin to the death penalty, we treat[] it similarly to that most severe punishment”; “Graham’s treatment of juvenile life sentences as analogous to capital punishment makes relevant here a second line of our precedents, demanding individualized sentencing when imposing the death penalty”).Seeking the ultimate punishment against a child offender, therefore, triggers procedural protections akin to the protections afforded adults in death penalty prosecutions.
Supreme Court precedents addressing death penalty sentencing laws, practice, and procedures are instructive here. In the capital context, the Supreme Court has held that the defendant is entitled to notice of the possibility that he may receive the strictest possible sentence and the aggravating factors that could lead to the imposition of that sentence. Lankford v. Idaho, 500 U.S. 110, 127 (1991). In Lankford, the Court stated that “[n]otice of issues to be resolved by the adversary process is a fundamental characteristic of fair procedure.” Id. at 126. The Court reversed the sentence because the defendant had no notice that he could be sentence to death. Louisiana courts follow the requirement that the state provide notice of its intent to seek the harshest sentence. Cheney Joseph and P. Raymond LaMonica, Louisiana Civil Law Treatise: Criminal Jury Instructions and Procedure § 7.01 (West 2003). Louisiana courts also require – as a constitutional matter – the state to set forth the aggravating factors that it intends to rely on when seeking the harshest sentence. SeeState v. Sonnier, 379 So.2d 1336, 1356 (La. 1979) (“[A] defendant is entitled in a capital sentencing proceeding, no less than in the guilt or innocence trial, to be informed of the nature and cause of the accusation against him.”). Louisiana capital jurisprudence requiring notice of the penalty sought, as well as alleged aggravating factors, must apply in cases where a child is facing a sentence of life without parole.
If the state gives notice that they will be seeking a life without parole sentence for XXXbecause they claim that he is the “worst of the worst” and the “rare” and “uncommon” juvenile offender, XXXwill be entitled to an array of procedural protections both in preparation for his sentencing hearing and during the sentencing hearing itself. Undersigned counsel, who is representing XXXpro bono, will require time and resources in order to provide effective assistance of counsel to XXXwho will be facing the ultimate punishment. XXXwill be entitled to and undersigned counsel will need the resources to hire, at a minimum: a fact investigator, a mitigation investigator, and the expert witnesses necessary to build an effective defense. See e.g., State v. Jones, 97-2593 (La. 03/04/98); 707 So. 2d 975, 977 (citing, inter alia, State v. Touchet, 642 So. 2d 1213, 1215 (La. 9/6/94))("Part of the State's obligation in providing effective assistance of counsel to indigent defendants is the obligation to provide the indigent defendant's counsel with the basic tools of an adequate defense at no cost to defendant."); see also Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 433, 30 L. Ed. 2d 400 (1971).
Because the sentencing decision for a juvenile facing life without parole requires consideration of the defendant’s mental condition, and specifically an assessment of the effects of youth and adolescent brain development on the defendant’s behavior that led to the crime, "due process requires the court to appoint a[n expert] to provide assistance to the accused: to help evaluate the strength of his defense, to offer his own expert diagnosis at trial, and to identify weaknesses in the prosecution's case by testifying and/or preparing counsel to cross-examine opposing experts.” Binion v. Commonwealth, 891 S.W.2d 383; (Ky. 1995) (citing DeFreece v. State, 848 S.W.2d 150 (Tex. Cr. App. 1993)). XXXmust have notice so that undersigned counsel can move for these resources and begin an exhaustive mitigation investigation if the state does intend to seek the ultimate penalty in this case.
WHEREFORE, for all the foregoing reasons and any other that may occur to this Honorable Court, XXXXXXXrespectfully requests that this Court require the state to provide notice if it intends to seek a sentence of life without parole and of the aggravating factors it intends to rely on in seeking this sentence.
Respectfully submitted,
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XXX, La. Bar No. XXXX XXX
CERTIFICATE OF SERVICE
I hereby certify that a copy of this motion has been served by e-mail on the date of filing upon the State of Louisiana through the Office of the District Attorney.
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