Tuesday, December 28, 2010

Preliminary Draft of Criminal Justice and Forensic Science Reform Act

The office of Senator Patrick Leahy (D-Vermont), Chair of the Senate Judiciary Committee, has released the preliminary draft Criminal Justice and Forensic Science Reform Act (CJFSRA) (full text).

From Senator Leahy's office

Senator Leahy plans to introduce forensic science reform legislation early next year.  Please find attached a PDF of draft forensic science reform legislation.  We suspect that there will be minor modifications to this draft prior to introduction, but the core of the bill will likely remain the same.  We do want to make clear, though, that this will be an ongoing and collaborative process, and there will be significant additional opportunities for discussion and improvement after the bill is introduced.

Capital Defense Weekly - Dec 28

Full edition

Parramore Sanborn v. Parker, 2010 U.S. App. LEXIS 25912;2010 FED App. 0389P (6th Cir. 12/21/2010)** “In defendant’s petition for habeas relief from his capital murder conviction, district court’s denial for the most part but grant in part on the grounds that the admission of certain testimony at the penalty phase constituted unconstitutional governmental interference with the right to counsel in violation of the Sixth Amendment, is affirmed in part, reversed reversed in part, and remanded where: 1) because the defendant has not demonstrated that the use of a witness’s testimony during his trial was a constitutionally impermissible intrusion, nor that it was prejudicial, the Kentucky Supreme Court did not act contrary to Weatherford or any other clearly established federal law in holding that the Commonwealth’s use of that testimony did not violated his rights to counsel, and as such, district court’s grant of habeas relief on those grounds is reversed; 2) the Kentucky Supreme Court’s decision on defendant’s claim of interference with attorney-client and priest-penitent privileges was predicated on its determination, as a matter of state law, that neither Kentucky’s attorney-client privilege nor its priest-penitent privilege extended to defendant; 3) evidence at defendant’s second trial was constitutionally sufficient to prove beyond a reasonable doubt the existence of the aggravating factors of rape and sodomy; 4) defendant’s second state court trial did not violate his Fifth Amendment rights by placing him in double jeopardy; and 5) defendant’s Sixth Amendment right to effective assistance of counsel during the guilt phase of trial was not violated.” [via FindLaw]

Monday, December 27, 2010

New ABA task to study broad implications of Padilla on criminal defense practice

ABA to Study Changing Role of Criminal Defense Lawyers Post-'Padilla' 

New York Law Journal

The new ABA task force will look not only at the specific obligations created by the Padilla decision and other rulings applying it, but also at the broader implications for the role of defense lawyers.

Bruce Green, a Fordham University School of Law professor and chair of the ABA's criminal justice section, said the bar group has already collected data on the collateral consequences of criminal convictions that have an "extraordinary impact" on clients' lives.

"Padilla raised the level of consciousness," said Mr. Green. "It has reminded lawyers that they must learn about, and advise clients about, the impact of a guilty plea on their immigration status and in other significant ways beyond sentencing."

Mr. Green said the new task force is needed "because clients need more than good advice about the consequences of a guilty plea. The task force will ask what else lawyers can do to assist criminal defendants with current civil legal problems or non-legal problems related to the criminal case."

Mr. Green added, "Criminal defense lawyers might help by broadening the scope of their representation beyond the criminal case or by making referrals to, and collaborating with, other professionals. The task force will study how lawyers and their offices address these situations, often in the face of time and resource limitations."

ABA Padilla Resource Page

Thursday, December 23, 2010

Tom Handy and Guthrie True on the need for penal code reform in Kentucky

Kentucky needs to control rising cost of corrections - Lexington  Herald-Leader

The article concludes with: 

And so you find a prosecutor and defense attorney coming together — with legislators, state and local officials and the chief justice of the Kentucky Supreme Court — in an effort to chart a course that will make a positive difference. The task force plans to issue its recommendations to the state legislature in January and the focus will be clear: getting Kentuckians a better return on their public safety dollars through policy options that protect public safety and hold offenders accountable, while controlling corrections costs.

Tuesday, December 21, 2010

Featured Case - Establishing jurisdiction in habitual truancy cases

Juvenile and family courts get subject matter jurisdiction to hear complaints of habitual truancy by a complaint which complies with the requirements of KRS 630.069(2) and by the school performing an adequate assessment of the child prior to bringing the complaint.  If these requirements are not met, the courts have no jurisdiction and the court designated worker should not even receive the complaint.  N.K. v. Commonwealth, 2010 WL 4026085, Court of Appeals, decided 10/15/2010


Contributed by Glenn McClister

New edition of Capital Defense Weekly is now available

Capital Defense Weekly

Leading off this edition is the Sixth Circuit's decision in  Archie Dixon v. Houk. In that decision the panel held that the police in Mr. Dixon's case improperly questioned first and warned later. As Ohio lawyer & blogger Russ Bensing notes, "[c]entral to the court’s decision was not only that the police had deliberately decided not to give warnings before the first custodial interrogation, but that the trial court, which had originally suppressed the confession, found the police weren’t telling the truth about their claim that [Mr. Dixon] had told them he’d talked to his lawyer and his lawyer had advised him to tell the police what happened.  (The state made an interlocutory appeal to the 6th District, which reversed the suppression and sent the case back for trial.)   Although the Ohio Supreme Court had found to the contrary in affirming the conviction and death sentence, the court has a point in noting that the trial judge was in the best position to make that determination, given its ability to hear and see the witnesses, and besides, no attorney in his right mind would have ever given that advice."

Monday, December 20, 2010

Discussion on Penal Code Reform tonight on KET

On the Monday, Dec. 20 edition of “Kentucky Tonight” at 8 p.m. ET on KET1 and at www.ket.org/live, host Bill Goodman and guests will discuss the state’s penal code.

Scheduled guests are state Sen. Tom Jensen, R-London, chiar of the Senate Judiciary Committee and co-chair of the 2010 Task Force on the Penal Code and Controlled Substances Act; state Rep. John Tilley, D-Hopkinsville, chair of the House Judiciary Committee and co-chair of the 2010 Task Force on the Penal Code and Controlled Substances Act; state Justice and Public Safety Secretary Michael Brown and Kentucky Supreme Court Chief Justice John Minton.

KY Court of Appeals Dec 10, 2010 Minutes

2010 Minutes for December 10 , 2010 (Nos. 1150-1184)

Criminal Law related published opinions


THOMPSON, JUDGE: Elmer David Miller appeals an order of the Lincoln Circuit Court extending his probation beyond the maximum statutory two-year period for a misdemeanor conviction. For the reasons stated, we reverse and remand.


LAMBERT, JUDGE: Shawn Miller appeals from an order of the Madison Circuit Court revoking his probation. For the following reasons, we affirm.


Sunday, December 19, 2010

Facebook, Twitter and smart phones cause mistrials, appeals and overturned verdicts

One tweet every three minutes from people saying they are on jury duty.

As jurors go online, U.S. trials go off trackReuters

Reuters Legal, using data from the Westlaw online research service, a Thomson Reuters business, compiled a tally of reported decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet.

The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years.

Judges granted new trials or overturned verdicts in 28 criminal and civil cases — 21 since January 2009. In three-quarters of the cases in which judges declined to declare mistrials, they nevertheless found Internet-related misconduct on the part of jurors. These figures do not include the many incidents that escape judicial notice.

Saturday, December 18, 2010

Louisville judge rejects death sentence - ???He will wish this court had put him on death row.???

Life in prison worse than death sentence for Cecil New, judge says  - Louisville Courier Journal

Saying the death penalty was not a harsh enough punishment, a judge ordered for Cecil New II to serve the rest of his life in prison, surrounded by “bigger, meaner men who have nothing to lose.”

“He will fear for his life every day,” Judge Judith McDonald-Burkman told the family of 4-year-old Ivan Aguilar-Cano, who disappeared while playing outside his home near Churchill Downs in 2007 and was murdered by New.  “He will wish this court had put him on death row.”

Since a November hearing in which prosecutors asked that New be sentenced to death, McDonald-Burkman said she had investigated the differences between the life of a death-row inmate and one serving a life sentence.  On death row, she said, inmates are segregated from other prisoners and can have meals sent to their cell without ever having to be around anyone else, and typically an execution is not scheduled for at least 20 years. With the life sentence, New must congregate with other prisoners and “is never truly isolated.”

“Death is undoubtedly justified for you,” the judge told New. “There’s not one cell in your body, Cecil New, that can be rehabilitated, not one. But is a death sentence justice?”  The unusually frank language from McDonald-Burkman included scenarios on how New’s life would play out in the general population.  “Death is easy,” she said.  “Living outside of death row, in general population in fear of prison justice every day is a hell more suited to you, Mr. New, than living under the protective guise of death row.”....

On Oct. 14, the day before his trial, New surprised many by pleading guilty to charges of murder, kidnapping, tampering with physical evidence and unlawful transaction with a minor.  However, New did not negotiate a plea bargain and entered what is known as an open plea, which made him eligible to receive the death penalty and waiving his right to an appeal.

Assistant Commonwealth's Attorney Jon Heck had asked McDonald-Burkman on Nov. 16 to give New the death penalty, saying he deserved to die for his actions. But Jay Lambert, New's attorney, argued that New's life should be spared because of a horrific childhood that, at least in part, helped make him into who he is.

After the sentencing, Heck said he agreed with the judge’s reasoning that the life sentence was the greatest penalty.  “He will serve out his life a tormented man,” Heck said. “And I think he deserves that.”


Friday, December 17, 2010

Kentucky Supreme Court December opinions

December 16 Supreme Court Minutes

Click above link to view complete minutes and links to full opinions

Criminal Law related "Questions Presented" in this month's published opinions include

Reaffirmation of the court’s longstanding position that, under KRE 201, a trial judge is prohibited from relying on personal experience to support the taking of judicial notice.

Search and Seizure. Co-tenant Consent. At issue is warrantless police search of home during Cabinet for Families and Children's investigation based upon co-tenant's alleged consent.

First-degree complicity to trafficking in a controlled substance and second-degree persistent felony offender-20 years. Impeachment by criminal conviction is governed solely by KRE 609. KRE 608(b) permits impeachment only by specific instances of conduct that have not resulted in a conviction. No palpable error in witness’ impermissible interpretation of what was on a drug buy tape.

Wanton murder and first-degree criminal abuse-20 years. Trial court did not err in refusing to strike a potential juror who had been subjected to sexual abuse as a child nor in admitting evidence of a social worker’s video-recorded out-of-court experiment involving the victim’s brother. Evidence of defendant’s mild retardation did not preclude the jury’s finding that he acted wantonly.

First-degree robbery, first-degree burglary, first-degree PFO-25 years. Trial court properly refused to give instructions on second-degree robbery and second-degree burglary. A second evidentiary hearing was not required on defendant’s motion to suppress DNA evidence where he belatedly alleged that his DNA profile was illegally entered into CODIS.

First-degree robbery, possession of a handgun by a felon, possession of a defaced firearm, and first-degree PFO. Trial court erred in imposing court costs and fines on indigents. Combination instructions used herein did not deprive defendants of unanimous verdicts on robbery and PFO charges.

Sentencing. Finality of Sentences. Double Jeopardy. At issue is plea agreement in which defendant agreed to increasing sentence if probation terms were violated

Sentencing. At issue is whether sentencing error may be corrected, implicating whether nature of error was judicial or clerical, and whether the error involved an illegal sentence.

Trial court erred in denying defendant’s motion to suppress his confession, where the facts showed that defendant had unequivocally invoked his right to counsel and the police had improperly continued questioning.

Thursday, December 16, 2010

American Constitution Society releases issue brief on misdemeanors

“Diverting and Reclassifying Misdemeanors Could Save $1 Billion per Year: Reducing the Need For and Cost of Appointed Counsel,” an Issue Brief by Robert C. Boruchowitz, Professor from Practice and the Director of the Defender Initiative at Seattle University School of Law.  

In his issue brief, Professor Boruchowitz discusses the heavy burden placed on the criminal justice and indigent defense systems around the country by the approximately ten million misdemeanor cases filed each year in state and municipal courts. He observes that minor, non-violent offenses can make up between 40% and 50% of the caseload in some courts and that in addition to the cost of courts, judges, prosecutors, and defense lawyers, “taxpayers expend on average $80 per inmate per day to lock up people accused of things like turnstile jumping, fish and game violations, minor in possession of alcohol, dog leash violations, driving with a suspended license, and feeding the homeless.” Professor Boruchowitz highlights diversion programs and reclassifications efforts from around the country that have been very successful in alleviating the burdens and costs imposed by these cases and argues that the U.S. Department of Justice could help advance these reforms through providing education about their benefits and supporting their expansion around the country. He concludes that “[b]y diverting or reclassifying these offenses as non-criminal violations, local and state governments could save hundreds of millions, perhaps more than $1 billion per year. In the process . . . the reduced burdens on millions of defendants would allow them to work and to meet their obligations, and the unfairness related to racial disparity would be reduced.”

P & A Director Marsha Hockensmith calls for more autopsies and death reviews done for the mentally disabled and mentally ill l

Marsha Hockensmith, director of Protection and Advocacy, told the Interim Committee on Health and Welfare the state currently reviews deaths of the mentally disabled and mentally ill in state-run facilities and can review deaths of disabled people in some community-based settings. Protection and Advocacy is a state agency that advocates for the disabled.

However, more needs to be done to ensure those who receive services in community-based settings are not dying as a result of abuse, neglect or other preventable diseases, Hockensmith said.

Wednesday, December 15, 2010

Law Review examines judiciary's role after NAS report on forensic evidence

Jane Campbell Moriarty University of Akron School of Law

from Abstract:     

This Article discusses the findings of the NAS Report, relevant cases that predate the report, and some cases decided since the report. It posits that the judiciary, which has created a standard of reliability, has failed to hold prosecutorial expert evidence to that standard. Using examples from history and modern cognitive science explanations, the Article tries to explain why the judiciary has been so unwilling to rigorously examine forensic science evidence and urges the judiciary to rethink its perspective going forward.

While the NAS Report suggests an overhaul of the current system, that overhaul is a contentious idea that may well not occur in the near (or even longer) future. Thus, a current crisis exists that the judiciary must address in its day-to-day decision making. The Article suggests how the judiciary can become a more effective crucible for testing the strength and limitations of forensic science.

Tuesday, December 14, 2010

DOJ Office of Immigration Litigation Issues Reference Guide to Immigration Consequences of Crimes

The Court’s holding in Padilla requires defense counsel to have a basic understanding of immigration law – an area in which they “may not be well versed” – in order to effectively advise their clients. Padilla, 130 S. Ct. at 1483. The decision is also of obvious importance, however, to federal and state prosecutors and judges, among other interested parties. This guide – to which many OIL attorneys have contributed – presents a brief, cogent, and clear introduction that identifies and summarizes the relevant statutes.

REVISED Padilla v. Kentucky Reference Guide 11-8-10


Department of Public Advocacy defends the Kentucky Supreme Court???s decision limiting law enforcement???s ability to conduct warrantless searches of a person???s home in the United States Supreme Court.

In Kentucky v. King, No. 09-1272, the United States Supreme Court is reviewing a case unanimously decided by the Kentucky Supreme Court on the issue of whether our Fourth Amendment has been violated by the actions of the police. The brief for Mr. King was filed December 13, 2010.

The issue is: can police force their way into a residence to arrest a citizen without obtaining a warrant from a judge when no real emergency exists except for the emergency they claim exits which was created exclusively by the police’s deliberate action.

 Click here to read the full document

Monday, December 13, 2010

The Jury Expert - Police Deception during Interrogation and Its Surprising Influence on Jurors' Perceptions of Confession Evidence

by Krista D. Forrest, William D. Woody
Krista Forrest and William D. Woody review the literature on police deception in interrogation and review a recent study of juror perceptions and decisions in cases involving confessions and police deception. Two experienced trial consultants respond with reactions based on years of experience in this area.

Full Article 

Recommendations from the authors

Our improved understanding of jurors' perceptions of and decisions about cases involving police deception during interrogation suggests a series of practical recommendations for litigators. What factors should attorneys consider when going to trial in the cases involving confessions and police deception during interrogation?

1.  Defense attorneys should attempt to introduce an expert witness in the area of false confessions to educate jurors about the little-known, manipulative, and potentially deceptive nature of police interrogation. Rather than focusing primarily on the defendant, we recommend that defense attorneys focus instead on how interrogation strategies in general and false-evidence ploys in particular have been shown to influence voluntariness and even elicit false confessions in laboratory studies and archival cases.

2.  If the interrogation includes police deception in general or false-evidence ploys in specific, defense attorneys should interview the police officers who interrogated the defendant. Defense attorneys should assess the extent to which these deceptive techniques are considered typical in that officer's working climate and the degree to which deception is involved, if at all, in the particular case.

3.  If audio or video evidence of the interrogation has not been suppressed and the interrogators used false-evidence ploys, defense attorneys should identify and discuss each ploy for the jury.

4.  In addition to explicit false-evidence ploys, as discussed in this paper, in which investigators explicitly claim to have nonexistent evidence, we also encourage defense attorneys to seriously evaluate implicit false-evidence ploys, called bait questions by Inbau et al. (2001) and Jayne and Buckley (1999). Inbau et al. (2001) state that an implicit false-evidence ploy "is nonaccusatory in nature but at the same time presents to the subject a plausible probability of the existence of some evidence implicating him in the crime" (p. 193). For example, if a suspect has denied that he or she was near the crime scene, an investigator might ask whether the suspect would appear on a hidden camera at the scene without directly claiming that such a recording exists or has been evaluated by police. In an implicit false-evidence ploy there is not an explicit lie about evidence, and legal scholars and social scientists have only recently begun to examine these deceptive interrogation tactics (Gohara, 2006, Forrest, Woody & Hille, 2010; Perillo & Kassin, 2010). Explicit and implicit claims of evidence are legally distinct. For example, Inbau et al. (2001) and Jayne and Buckley (1999) extensively discuss and defend the legality of explicit false-evidence ploys, but neither examines the legality of implicit false-evidence ploys. Despite these distinctions, both explicit and implicit false-evidence ploys induce false confessions at similar rates (Perillo & Kassin, 2010), and jurors cannot distinguish between them (Forrest et al., 2010). In other words, even if investigators used a seemingly less deceptive implicit false-evidence ploy, defense attorneys should have the same concerns that they would have regarding an explicit false-evidence ploy.

5.  Prosecutors should advise police detectives about the potential trial outcomes that stem from deception during interrogation. Not only do false-evidence ploys increase the likelihood of false confessions in experimental studies as well as in the archival data, false-evidence ploys may also lead a jury to perceive the interrogation as more deceptive and coercive. Police deception only marginally decreased the likelihood of conviction in this study, but these changes in jurors' perceptions of deception and coercion raise important concerns. If police interrogators know that deception may reduce the chance of a conviction and lead to shorter sentences for confessing defendants, interrogators may choose to avoid deception during interrogation to reduce these risks. We have an ongoing study to evaluate whether judges are subject to these biases in sentencing.

6.  When appropriate, voir dire should include questions concerning false confessions and the degrees to which jurors see themselves and others as capable of making a false confession. As we found, jurors who believe that false confession is possible for others or for themselves are less likely to convict than are jurors who believe the myth of psychological interrogation (Woody et al., 2010).

7.  Although the study discussed here assessed jurors' perceptions and decisions, we recommend that judges use caution when deciding whether to admit disputed confessions into trial, particularly when a confession follows police deception. We raise these concerns here due to potential effects on jurors, but we strongly recommend that judges consider the experimental and archival evidence that demonstrates that false confession becomes more likely when interrogators use false-evidence ploys (Stewart, Woody, & Pulos, 2010).

Can someone be charged in one county for receiving stolen property and with theft by unlawful taking of the same property or receiving that same property in another county?

No.  The Supreme Court of Kentucky in Jackson v. Commonwealth, Ky., 670 S.W.2d 828 (1984) (overruled on other grounds, Relied on the Blockburger test and decisions which predated the penal code, to hold that one who was convicted of theft by unlawful (KRS 514.030(1)(a)) taking could not also be convicted of Receiving Stolen Property (KRS 514.110). The Court reasoned that one who steals property must of necessity have knowledge that the property was stolen and that the offenses merged.
The Court later held in Cooley v. Com. 821 S.W.2d 90 Ky.,1991 that if items are stolen in one county but are retained or disposed of in a different county double jeopardy blocks the later prosecution.  This case also does a great explanation of how a Double Jeopardy issue is to be analyzed (dealing with subsequent receiving convictions in multiple counties).

Contributed by La Mer Kyle-Griffiths, Juvenile Post Disposition Branch Manager

Sunday, December 12, 2010

New resource collecting data on prosecutorial misconduct - The Veritas Initiative

Launched in the fall of 2010 with the release of the most comprehensive statewide study ever undertaken on prosecutorial misconduct in both state and federal courts, the Veritas Initiative is the ongoing watchdog entity of the Northern California Innocence Project (NCIP) at the Santa Clara University School of Law. The Veritas Initiative is dedicated to advancing the integrity of our justice system by researching and providing critical data that shines a light on such crucial issues as the aforementioned misconduct of public prosecutors. Through its relentless research efforts conducted by leading experts from NCIP, the Veritas Initiative foresees its first and future studies serving as major catalysts for reform.


Saturday, December 11, 2010

FBI, BJS Launch Online Tool For Analyzing Crime Data

The U.S. Justice Department’s Bureau of Justice Statistics and the FBI have launched an online data tool, aimed at making it easier to research and analyze crime data. The data tool lets users perform queries on custom variables like year, agency, and type of offense. Until now, making comparisons of Uniform Crime Report data required searching annual reports and manually crunching the numbers. The new tool aims to make it easier for users to make use of the raw numbers, the FBI says.

BJS developed the UCR data tool for the FBI as part of a collaboration between the agencies to improve crime data accessibility. The ucrdatatool.gov replace sa long-standing data BJS online tool that presented crime trends from the FBI’s UCR. More information about the methodology and best practices for using the new tool are available on the site.

Link to online data tool

from The Crime Report blog

Friday, December 10, 2010

When does a person become a convicted felon?

This a tricky question, though important for figuring out collateral consequences of a plea.  The Supreme Court of Kentucky in Thomas v. Com., 95 S.W.3d 828 (Ky. 2003) has held that a person becomes a convicted felon as soon as they enter a plea of guilty.  In Thomas, the Court’s rationale was that once a person enters a plea of guilty freely, knowingly, and intelligently, they are convicted.  In the Thomas case, the question was whether a guilty plea equaled a conviction if the case was supposed to be diverted at a later date.  The court held that a person in that situation is a convicted felon until such time that the diversion was successfully completed and the case dismissed.  This also applies to cases where a plea is entered but the case has not received a final judgment yet.  In Grace v. Commonwealth, Ky.App., 915 S.W.2d 754 (1996), the Court ruled that a person is considered to be convicted from the time guilt is determined which is at the entry of the plea of guilty.

Contributed by La Mer Kyle-Griffiths, Juvenile Post Disposition Branch Manager

Thursday, December 9, 2010

New OJJDP Report Provides Detailed Look at Juveniles in Placement

OJJDP has released findings from its “Survey of Youth in Residential Placement,” an examination of more than 7,000 young people in secure placement around the country during 2003.

Among the most significant findings:

  • Youth of color are overrepresented in residential placement: 32% of youth in residential placement are African American, and 24% are Latino.
  • Over 1,200 youth in residential placement are under 13 years old.
  • 57% of the detained youth are incarcerated for a nonviolent offense.
  • Despite evidence that girls have not become more prone to offending over the past decade, there has been a steady increase in the proportion of girls in residential placement. For some offenses, such as status offenses and assaults, girls are nearly twice as likely as boys to be in placement.
  • 25% of the youth were not raised by either parent.
  • 20% of young people in residential placement are either parents or expecting (compared to a national average of 2-6%)
  • 30% of the respondents report that they have a learning disability (compared with 5% of the general population). They have also experienced high rates of suspensions (57%), truancy (53%), and disenrollment from school (24%)
  • 30% of youth have not been informed of any post-release plan for them.

Wednesday, December 8, 2010

Featured Case - Nicely v. Commonwealth - Jail Credit for incarceration for drug court sanctions.

Commonwealth of Kentucky v. Jarrod L. Nicely

2009-SC-000313-DG         November 18, 2010



and from the case

Because drug court is a treatment program, monitored and enforced by
the court, that is frequently used as the primary condition of probation with
addicted defendants, the trial court has the authority to modify a defendant's
probation rather than revoking him for program violations. This modification
may include requiring the defendant to serve days in jail. Participating
defendants in drug court specifically agree to the program, and are made aware
before entering that they may be subject to such sanctions . Days served as
modifications of probation are days served before the commencement of
imprisonment, and are thus treated as time spent in custody pursuant to KRS
532.120(3) . Consequently, the Appellee is entitled to custody credit against the
maximum term of his sentence on the underlying offense for all the days he
served as drug court sanctions.

Tuesday, December 7, 2010

Practice Tip - Padilla related

Criminal defense attorneys should ask in all initial interviews the birthplace of the defendant.   Don't fall into the trap of doing this only in cases in which the client doesn't "look" like an American citizen.

For more Padilla Practice tips see:

Practice Advisory: Duty of Criminal Defense Counsel Representing an Immigrant Defendant after Padilla v. Kentucky (April 9, 2010) (237K PDF). This practice advisory, prepared by the Immigration Defense Project for the Defending Immigrants Partnership, provides initial guidance on the duty of criminal defense counsel representing an immigrant defendant after the Supreme Court's Sixth Amendment right to counsel decision in Padilla v. Kentucky (U.S. March 31, 2010). In this decision, the Court held that, in light of the severity of deportation and the reality that immigration consequences of criminal convictions are inextricably linked to the criminal proceedings, the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

ABC news reports on cost of the death penalty

Could Abolishing the Death Penalty Help States Save Money?," at ABC News.  There is video at the link.

California has a $25 billion deficit and almost 700 inmates on death row. According to a 2008 report issued by the California Commission for the Fair Administration of Justice, maintaining the criminal justice system costs $137 million per year, but the cost would drop to $11.5 million if it weren't for the death penalty. A 2010 study from the Northern California chapter of the American Civil Liberties Union found that California would be forced to spend $1 billion on the death penalty in the next five years if the state does not replace capital punishment with permanent imprisonment.

California is not the only state where cost has become an argument for abolishing the death penalty.


Illinois Democratic State Rep. Karen Yarbrough, a sponsor of the bill, said she had been working on the issue of abolishing the death penalty for four years, and this is the closest the vote has ever come in the legislature for this measure. Yarbrough said she needs one more vote to call the bill to the Illinois House floor for a vote in January.

"Illinois has spent over $100 million in 10 years and hasn't put anyone to death," Yarbrough said. "It's time to put this barbaric practice to rest."

Yarbrough's bill would take the money saved from the death penalty and put it toward solving cold cases in the state, and training law enforcement officials.

"We have a $13 billion shortfall in the budget," she said. "We want to be pennywise and be able to put this money into something substantial."


A typical cost per year for the death penalty ranges from $10 million to $20 million in states that have one or fewer executions per year, according to Richard Dieter, executive director of the nonpartisan Death Penalty Information Center. This number does not take into account states that have extreme numbers of executions or death row inmates, such as Texas or California.

"There have been quite a few studies in various states," Dieter said. "And the studies have all concluded that the death penalty is more of a burden on taxpayers than if the same defendant receives a life sentence."

A study by a Duke University economist in 2009 of North Carolina's death penalty costs found that the state could save $11 million a year if it abolished the death penalty.

In 2008, an Urban Institute study of Maryland found that a death penalty trial costs $1.9 million more than a nondeath penalty trial. The study also estimated that the state's taxpayers had paid at least $37.2 million for each of the five executions the state had carried out since 1978.

The Tennessee Comptroller of the Currency estimated in 2004 that death penalty trials cost an average of 48 percent more than trials in which prosecutors seek life imprisonment.

A 2003 legislative audit in Kansas concluded that capital cases are 70 percent more expensive than comparable nondeath penalty cases.

Every part of a death penalty case is longer and requires more legal time, since capital punishment is on the table, Dieter said.

Hearing Delayed in Texas Death Penalty Case

A Texas hearing on the constitutionality of the death penalty was delayed today when the state's highest criminal court issued an order staying proceedings for at least 15 days while defense attorneys and prosecutors submit briefs on their positions.

More on today's stay is here.

The hearing, in the case of John Edward Green, was the first in Texas history to examine the substantial risk of wrongful convictions in a Texas capital trial.

December 7th edition of Capital Defense Weekly

Can be found here

Monday, December 6, 2010

Early reporting on hearing regarding constitutionality of death penalty in Texas

Houston judge on Monday began a hearing on the legality of the death penalty in Texas, which executes more convicts than any other U.S. state

John Green, 25, is awaiting trial after being charged with murdering a woman during a robbery in Houston in 2008. He says he is innocent.

His lawyers have challenged the constitutionality of Texas' death penalty, claiming that there is a high probability of wrongful convictions and executions under current trial rules. Their effort is predicated on Texas rules that allow defendants to challenge the legality of potential punishments even before trial begins.

The state has executed 464 inmates over the last three decades -- far more than any other U.S. state. But death penalty opponents cite two prominent Texas cases in which significant exculpatory evidence has come to light years after inmates' sentences were carried out.

During roughly two weeks of testimony, state District Judge Kevin Fine will hear arguments from prominent death penalty opponents, who will shine a spotlight on the legal processes and evidentiary support used in Texas' capital punishment trials, which critics say are error-prone....

County prosecutors said they will "stand mute" during the hearing, after citing 19 reasons why it should not proceed. Prosecutor Alan Curry told Judge Fine he would "respectfully refuse to participate" in the hearing. Fine later told Curry, "I expect your participation."

Fine evoked the ire of Texas Governor Rick Perry in March when he granted a request by Green's lawyers to declare the state's death penalty as unconstitutional, a common request in capital murder cases that Texas judges routinely deny. Fine rescinded the ruling after pointing to evidence that "we execute innocent people," and called for the hearing.

Fine is a Democrat who presides in Harris County, which has sentenced more prisoners to death than any other Texas county. Texas is a predominantly Republican state where support for the death penalty runs high.

Louisiana Resource for Public Defenders Representing U.S. Veteran Clients

A Resource for Public Defenders Representing U.S. Veteran Clients

The Louisiana Public Defender Board, in collaboration with the Louisiana Department of Veterans Affairs, has developed a guide for public defense attorneys who are representing Veterans. This is a great tool that could fairly easily be replicated in every state in the country.  It would help indigent defense attorneys to identify the resources available to assist their veteran clients.

Sunday, December 5, 2010

Kentucky Supreme Court Criminal Law Related Oral Argument Schedule


"Criminal Law. Jury Instructions. Justification. Choice of Evils. At issue is whether a finding of a lack of justification based upon choice of evils should be included in the instruction for the crime itself."
Discretionary Review granted 3/10/2010
Jefferson Circuit Court, Judge Geoffrey P. Morris
For Movant: Bruce P. Hackett
For Respondent: Joshua D. Farley

Appellant's Brief
Appellee's Brief
Appellant's Reply Brief

For Kentucky Supreme Court LIVE arguments, click here on date and time of argument.

Saturday, December 4, 2010

Audio from AILA: Putting Padilla v. Kentucky into Practice

With the stroke of a pen the United States Supreme Court opened a window of relief for thousands of immigrants facing deportation because of ill-advised criminal pleas. Join AILA Members Dan Kowalski, Maria Baldini-Potermin and Kristin Etter as they discuss Padilla v. Kentucky. Our immigration and criminal defense experts discuss strategies for preserving and pursuing Padilla issues in removal proceedings and how you can work with criminal defense counsel to make the most effective use of post-conviction relief for ineffective assistance of counsel.

click here to download or click arrow below to listen to on your computer




Friday, December 3, 2010

NY Times - Impact of high bail on misdemeanor defendants

N.Y.C. Misdemeanor Defendants Lack Bail Money

“Here we are locking people up for want of a couple of hundred dollars,” said Jamie Fellner, senior counsel with the domestic program of the advocacy group.

“Pretrial liberty should not be conditioned on the size of your bank account,” Ms. Fellner said.

The report raised the possibility that many of the poorer defendants pleaded guilty at arraignment for sentences with no jail time, simply to avoid being behind bars while awaiting trial.

“The client is placed with a choice of staying out of jail and being on Rikers Island and fighting their case,” said Robin Steinberg, the director of the Bronx Defenders, a nonprofit group that provides legal representation to Bronx residents charged with crimes. “Almost anybody would plead guilty. It creates a pressure on poor people in the criminal justice system for them to plead guilty without regard to whether they were guilty or not guilty.”

Rundown of other states looking at reducing prison costs from Gritsforbreakfast

States seek to slash prison spending to stem budget shortfalls

In Florida, incoming Governor Rick Scott wants to reduce prison spending - currently at $2.5 billion per year - by a whopping $1 billion annually.

In Washington state, the governor and the Senate Republican Caucus have endorsed $55.4 million in cuts to the Department of Corrections "through staff reductions and program and prison consolidation." The state has also implemented inmate lockdowns one day per month as a money saving measure.

In Ohio, the prison system faces budget cuts even though "at 100 percent of current funding, the agency said it would have to cut 339 corrections positions and close prisons because of the expected increase in payroll costs"

In Oregon, a task force on the budget "proposes a re-examination of criminal-sentencing policies — Oregon has mandatory minimum sentences for some violent offenders, doubling the prison population in the past 15 years."

Michigan is closing prisons in part thanks to a successful reentry initiative that has reduced parolee recidivism by 27%. Overall, "during the past three years, the number of state inmates in Michigan has shrunk by 12 percent, reversing a sixteen-year trend of steady prison population growth"

In Rhode Island, "the state Department of Corrections is proposing to close high- and medium-security facilities."

In Vermont, "On the campaign trail, Gov.-elect Peter Shumlin said reducing corrections costs will be a cornerstone of his administration." (Of course, their entire prison population would fit inside one of Texas' larger units.)

In Indiana, lawmakers are "evaluating probation and parole supervision practices, community corrections and transition programs, the use of issue-specific courts including drug and family courts, and sentencing guidelines and requirements. Changes could include decreasing prison time for certain crimes; moving more offenders to community corrections and revamping the state's earned credit rules."

According to a recent report (pdf) from the Vera Institute of Justice titled "The Continuing Fiscal Crisis in Corrections," at least 15 states expect "to close facilities or reduce their number of beds in fiscal year 2011," and I suspect that number will continue to grow.

Thursday, December 2, 2010

Time Magazine Opinion Piece about Stevens and the Death Penalty

Stevens' Case Against the Death Penalty: Shirking the Blame

His revisionist history has been widely praised — including by TIME.com's legal columnist — and that's understandable. Stevens is an excellent writer and a charming talker, and he says a number of true things about the death penalty. The system consumes an extraordinary amount of judicial resources to resolve a vanishingly small number of cases. Meanwhile, more than 3,000 condemned prisoners languish indefinitely in expensive death-row lockdowns — many of them for more than a quarter-century and counting. This makes a mockery of the idea of finality in the justice system, and makes our legal institutions look feckless. Stevens hits the nail on the head when he writes, "While support of the death penalty wins votes for some elected officials, all participants in the process must realize the monumental costs that capital cases impose on the judicial system."


Huffington Post on Death Penalty constitutionality challenge in Texas

Death Penalty May Be Ruled Unconstitutional In Texas

At a hearing scheduled for Monday, December 6, a district court in Texas will decide whether the death penalty is unconstitutional in the state based on the disproportionately high risk of wrongful convictions in Texas. This is the first time in the state's history that a court will examine the problem of innocent people being executed in a Texas capital trial.

NLADA Gideon Alert: Michigan lawsuit reinstated

Gideon Alert: As Michigan Supreme Court again reinstates ACLU Duncan lawsuit, the Race to the Bottom continues in Chippewa and Bay counties

On April 30, 2010, the Michigan Supreme Court unanimously ordered the American Civil Liberties Union class action lawsuit in Duncan v. Michigan to move forward, only to reverse itself on July 16, 2010 in a 4-3 order issued on reconsideration.  By granting summary judgment in favor of the Governor and State of Michigan at that time, most people (including this author) assumed the court had put an end to any opportunity for the plaintiffs to prove they are being denied the effective right to counsel as a result of Michigan’s inadequate and ineffective system of public defense.  (For more information on the Duncan case and orders, see our earlier Gideon Alerts here and here.)  However, on November 30, 2010, the Court issued a third order, reversing itself yet again with another 4-3 vote, that reinstates the original unanimous April 30th order. 

One dissent from the November 30 Order clearly suggests that politics were the motivation behind this latest turn-about.  “The Court’s decision to suddenly expedite this case seems designed to prevent the new Court after January 1, 2011 from considering a motion for reconsideration.”  Politics does appear to be at the heart of all these reconsiderations.  Despite the original unanimous decision, the first reconsideration broke down on partisan lines with the three Republican and one Independent jurists switching positions, seemingly without any new evidence being presented by the defendants as to why their votes should be reconsidered.  At the time, the three Democratic jurists said as much in their dissent: “Today’s order slams the courthouse door in plaintiffs’ face for no good reason.”

Arizona delays execution due to drug importation questions

Court stays execution over drug origin from UPI.com

The Arizona Supreme Court says it has delayed an execution until the state answers questions about how it obtained a lethal injection drug made overseas.

Sodium thiopental is used in Arizona and other states as a sedative in combination with two other drugs in lethal injection executions. But because it is not made in the United States anymore and there is no legal mechanism for it to be imported from its British manufacturer, lawyers for condemned prisoner Daniel Wayne Cook contend acquiring sodium thiopental from abroad may be illegal, The Arizona Republic reported Wednesday.