Thursday, June 28, 2012

KY COA June 22 - Lemons - Applicaton of KRS 503.085 Self Defense Dismissal

BRIAN J. LEMONS V. COMMONWEALTH, 2010-CA-001942-MR, 2012 WL 2360131,

To-be-published, June 22, 2012,

Reversing with directions to dismiss the indictment. 

Reviewing the witness statements and police reports underlying Lemons’ KRS 503.085 claim of immunity from prosecution because he acted in self-defense, the Court of Appeals found that “the Commonwealth failed to present sufficient evidence to establish probable cause that Lemons’s use of force was unlawful.”  The Court went on to say that “the Commonwealth cannot meet this burden simply by asserting that a jury could reject the defendant's version of the facts. Otherwise, KRS 503.085 would not result in any meaningful change in the law in circumstances where a change was clearly intended.”

Witnesses here disagreed on many things.  But several witnesses corroborated that the so-called victim and his two brothers initiated the violence by knocking out Lemons’ friend (chipping three teeth and causing him to bleed profusely from his mouth), and picking up and throwing Lemons’ girlfriend to the ground.  No one but Lemons saw what happened next, when the so-called victim swiftly pinned Lemons against a car and Lemons defended himself by sticking him in the shoulder and back with his pocketknife.

Lemons pled to manslaughter and accepted a 14-year sentence conditioned on the appeal of his immunity motion.  Had he gone to trial, asserted self-defense, and lost, he could have raised on appeal both the denial of his immunity motion and insufficiency of the Commonwealth’s evidence controverting his claim of self-defense.  But a negative jury verdict on self-defense might have clouded the KRS 503.085 issue and made it harder to win.

TRIAL TIP:  This case is not final and may well be reviewed by the Kentucky Supreme Court.  Meanwhile, even if your case involves complex facts and witnesses who contradict each other, you should be filing pretrial motions under KRS 503.085 to dismiss the indictment when your client has a self-defense/defense of others claim.

Kudos to trial counsel Aaron Currin for raising and preserving this issue. 

Contributed by Tom Randell

Tuesday, June 26, 2012

DNA for the Defense Bar

by The National Institute of Justice

DNA for the Defense Bar is the newest addition to a series of NIJ guides that aims to improve the use of forensic DNA in the criminal justice system. Designed specifically for criminal defense lawyers, it:

  • Offers a primer on the science of DNA, from collection at a crime scene to laboratory analysis and findings.
  • Provides general discussions on working with a criminal defense client and preparing a defense, including the testimony of a DNA expert witness and cross-examining prosecution DNA witnesses.
  • Offers guidance regarding trial issues (for example, jury selection and opening and closing statements) and includes an in-depth discussion of the statistics with respect to CODIS match probabilities.
  • Include a discussion of post-conviction DNA testing.

Full text:

Vera Publishes Review of Research on the Relationship of Race and Ethnicity to Prosecutorial Decision Making

A new publication from the Prosecution and Racial Justice Program (PRJ) of the Vera Institute of Justice surveys the literature on the relationship of race and ethnicity to prosecutorial decision making.

Do Race and Ethnicity Matter in Prosecution?—a review of 34 empirical studies on the relationship of race and ethnicity to prosecutorial decision making published between 1990 and 2011 in peer-reviewed journals—analyzes research that previously has been accessible primarily to scholars. The PRJ review, written for a broad audience, is intended to encourage additional research on this critical subject.

“No other actor in the criminal justice system drives case outcomes as profoundly as the prosecutor,” PRJ director Whitney Tymas writes in her introductory note. “Nevertheless, empirical research analyzing racial impacts of prosecutors’ routine choices on the thousands of defendants and victims with whom they interact daily has been scarce.” 

Among the review’s key findings: 

  • Defendants’ and victims’ race appear to affect prosecutorial decisions. Most of the 34 studies reviewed found influences on case outcomes, even when other legal and extra-legal factors are taken into account.
  • The effect of race and ethnicity on prosecutorial decision making is inconsistent.
  • As compared to whites, it is not always blacks or Latinos and Latinas who receive more punitive treatment.

Read report

Friday, June 15, 2012

New Pew Center Study on Prison Terms

Time Served

The High Cost, Low Return of Longer Prison Terms

Quick Summary

The length of time served in prison has increased markedly over the last two decades, according to a new study by Pew’s Public Safety Performance Project. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

Over the past 40 years, criminal justice policy in the U.S. was shaped by the belief that the best way to protect the public was to put more people in prison. Offenders, the reasoning went, should spend longer and longer time behind bars.

Consequently, offenders have been spending more time in prison. According to a new study by Pew’s Public Safety Performance Project, the length of time served in prison has increased markedly over the last two decades. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

Those extended prison sentences came at a price: prisoners released from incarceration in 2009 cost states $23,300 per offender--or a total of over $10 billion nationwide. More than half of that amount was for non-violent offenders.

The report, Time Served: The High Cost, Low Return of Longer Prison Terms, also found that time served for drug offenses and violent offenses grew at nearly the same pace from 1990 to 2009. Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent. 

Almost all states increased length of stay over the last two decades, though that varied widely from state to state.  In Florida, for example, where time served rose most rapidly, prison terms grew by 166 percent and cost an extra $1.4 billion in 2009.

A companion analysis Pew conducted in partnership with external researchers found that many non-violent offenders in Florida, Maryland and Michigan could have served significantly shorter prison terms with little or no public safety consequences. 

The report also summarizes recent public opinion polling that shows strong support nationwide for reducing time served for non-violent offenders.

Friday, June 1, 2012

KY COA May 11th - Hamm - Client's inability to pay child support

Hamm v. Commonwealth, ---S.W.3d--- (Ky. App. 2012), rendered May 11, 2012, To be published

Mr. Hamm appealed his pretrial diversion revocation by the Boyd Circuit Court for his continued failure to pay child support. The diversion agreement called for Mr. Hamm to pay current child support and a portion of arrearages on a monthly basis. Three months later, a bench warrant was issued for failure to make payments. At the revocation hearing, Mr. Hamm admitted he had not made his support payments, but cited his inability to pay. He testified that he managed to earn about $40 per week, barely enough for himself, and far short of child support levels. The trial court revoked based solely on the failure to pay.

The Court of Appeals held that the circuit court’s revocation was improper in light of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). Under Marshall, the trial court must consider the two Bearden v. Georgia, 461 U.S. 660 (1983), factors: 1) consider whether the probationer made sufficient bona fide efforts to pay, but has been unable to pay through no fault of his own; and 2) if so, consider whether alternative forms of punishment might serve the interests of punishment and deterrence. Id. at 823-24. The Court of Appeals agreed that Marshall applied and the trial court denied Mr. Hamm his due process rights by summarily revoking diversion based solely on his inability to pay. The trial court abused its discretion in failing to make the Bearden inquiry and appropriate findings of fact pursuant to Marshall.

Trial tip: in these revocation cases for failure to pay support, provide evidence that the client’s inability to pay was not through any fault of his and be prepared to provide alternatives forms of punishment.

Contributed by Brandon Jewell