Tuesday, October 30, 2012

KY SC Sept 20 - Wilson - Ex parte communications.

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Commonwealth v. Michael L. Wilson, 2011-SC-000157-CL, ___ S.W.3d ___ (Ky. 2012).

Opinion CERTIFYING THE LAW by Justice Cunningham.  To be Published.

Ex parte communications.

Question presented was: Does Kentucky law authorize an ex parte motion by a criminal defendant to vacate or set aside a warrant for his or her arrest with no notice or opportunity for the Commonwealth to be heard?  The answer is no. 

A warrant was issued for Wilson on charges of assault.  Wilson’s attorney made an ex parte request to a judge to set the warrant aside and issue a summons instead because the victim recanted.  The request was granted.  Eventually Wilson pled guilty.  Because such ex parte communication by defense attorneys with judges is common practice in district court, the Supreme Court accepted the request for certification of the law.  The Court stated that Rule 4.300, Canon 3B(7) prohibits ex parte contact in these circumstances:  “[w]ith regard to a pending or impending proceeding, a judge shall not initiate, permit, or consider ex parte communications with attorneys and shall not initiate, encourage or consider ex parte communications with parties…”

Contributed by Brandon Jewell