Louisville Metro Corrections chief launches investigation into certification lapses

Metro Corrections chief launches investigation into certification lapses - Louisville Courier-Journal

Metro Corrections Chief Mark Bolton said Thursday that he has ordered an internal investigation to find out why four Breathalyzer technicians’ certifications had lapsed, jeopardizing the alcohol breath test results in about 600 local drunken-driving cases.

A preliminary investigation shows the technicians mistakenly believed they had been properly certified, Bolton said.

The Metro Department of Corrections said this month that the technicians mistakenly allowed their certifications to lapse in September and a system allowing employees to track their own certification would be replaced.

Editorials about Kerry Porter

Legislature, Supreme Court must address flaws that lead to wrongful convictions - Lexington Herald-Leader

The legislature and state Supreme Court must fix flaws in the system that led to Porter's and other wrongful convictions. Otherwise, more such errors and injustices will be inevitable.

This should be an urgent concern, not just for public defenders, but for all of law enforcement because convicting the wrong person lets the real criminal off the hook.

As is true of most wrongful convictions, a faulty eyewitness identification was at the heart of the case against Porter. This is not surprising as a growing body of science reveals the unreliability of eyewitness IDs.Police agencies should adopt model procedures for eyewitness identifications. Unless these procedures are scrupulously followed, the Supreme Court should exclude the use of eyewitness identifications by prosecutors.

 

Editorial | 14 stolen years - Louisville Courier-Journal

In 1997, Bill Clinton started his second  

term as president of the United States, 
Madeleine Albright became the first woman 
secretary of State, Steve Jobs was rehired 
by Apple, Princess Diana died in a car 
crash — and Kerry Porter went to prison 
for the murder of Tyrone Camp, a crime he 
insists he didn’t commit.

Fourteen years later, Mr. Clinton is a gray 
eminence on the world stage, Hillary 
Rodham Clinton (his wife) is the third 
woman secretary of State, Mr. Jobs died a 
legend beyond Apple, the late Princess 
Diana’s older son is married and nearing 
30 — and Kerry Porter was just released 
from prison for a murder others now 
believe he didn’t commit.

Last week, he spent the first night of his 
freedom, sleeping under the Christmas 
tree in his mother’s living room.

 

Kerry Porter - Kentucky Innocence Project Client Exonerated and Released

Kerry Porter, imprisoned for murder, is exonerated, freed after 14 years - Louisville Courier Journal 

After serving 14 years behind bars for a 
murder he insisted he didn’t commit, a 
stunned Kerry Porter learned Monday that 
he was exonerated and hours later was 
released from prison.

“He was virtually speechless,” said Melanie 
Lowe, who won Porter’s exoneration after a 
five-year battle.

“He said it was a lot to take in … and that 
he was a little nervous” about returning to 
the real world, she said. “He’s never held a 
cell phone or seen a flat-screen TV.”

Jefferson Circuit Judge Irv Maze signed an 
order dismissing Porter’s conviction and 
ordering him released “immediately and 
without delay” in the 1996 murder of 
Tyrone Camp.

 

Suspend Kentucky executions until system is reformed - Louisville Courier Journal Op-Ed

Suspend Kentucky executions until system is reformed: Ensuring justice must be our primary concern

As officers of the court and members of the bench and bar, we have a duty to uphold the law. We also have an obligation to use our skills, talents and expertise to ensure the fair administration of justice. We take that commitment very seriously. After reviewing too many areas in which we fall short in protecting against wrongful conviction and failing to ensure fair and accurate procedures, we agree with the team’s unanimous recommendation.

We are hopeful that our detailed report and analysis will be a call to action for reform of the death penalty system.

In Kentucky, we must reserve capital punishment for the most heinous of offenses and offenders; we have to make sure that we are getting it right. We owe the citizens of this commonwealth no less.

The Op-Ed is authored by Wm. T. (Bill) Robinson III, president of the American Bar Association and former president of the Kentucky Bar Association and James E. Keller and Martin E. Johnstone, former Kentucky Supreme Court justices and members of the Kentucky Death Penalty Assessment Team.

read the complete article

Plce Moratorium on Kentucky Executions - Lexington Herald-Leader

ABA Study: Too Much Evidence of Inaccuracy, Unfairness

Even supporters of capital punishment, which includes this editorial page, will come away from this study with serious doubts about the fairness and accuracy of the process that condemned 34 people to Kentucky's Death Row.

read entire editiorial

KY To Release 1,000 Inmates Six Months Early Under New Law - Louisville Courier Journal

996 Kentucky inmates get out early in new prison plan

Easing transition, fighting recidivism are main goals

Kentucky is poised to release nearly 1,000 inmates about six months early as part of a mandatory new program aimed at easing their transition back into the community, reducing recidivism and helping trim its corrections budget by about $40 million next year.

 By providing support in such areas as finding jobs and homes in their first few months outside prison, the new program — part of a major corrections overhaul passed earlier this year — attempts to lessen the chances that offenders will commit new crimes, Justice Cabinet Secretary J. Michael Brown said.

DPA December 2011 Advocate

DPA December 2011 Advocate

Call for Moratorium on Executions

KY Public Advocate and Louisville Metro Chief Public Defender Endorse the Call for a Moratorium on Executions and the Expeditious Implementation of the Reforms recommended by the ABA Assessment of the Kentucky Death Penalty

(Frankfort, Kentucky, December 7, 2011) Kentucky Public Advocate Ed Monahan and Louisville Metro Chief Public Defender Dan Goyette echoed today’s call by the American Bar association and the Kentucky Death Penalty Assessment Team for a suspension of executions in Kentucky until the recommendations in its December 7, 2011 report are fully implemented. Over the last two years, the Kentucky Death Penalty Assessment Team objectively reviewed the fairness, accuracy and reliability of Kentucky’s system for administering the death penalty. The review is thorough and scholarly. It was conducted by experienced, highly respected Kentucky criminal justice experts. It is a fact-based analysis supported by comprehensive, detailed evidence. It found major deficiencies that undermine the integrity of the system.

Today, Goyette and Monahan sent a request to the Governor asking that he not sign any execution warrants until the study’s reforms are put into effect. A similar request was submitted to the Attorney General asking that he not seek any execution warrants until the Kentucky Death Penalty Assessment Team recommendations are enacted.

See full press release here.

For more information and supporting documents, click here.

ABA Press Release - The Kentucky Death Penalty Assessment Report

Kentucky Legal Team Identifies Problems With Commonwealth’s Death Penalty System, Calls for Moratorium on Executions

WASHINGTON, D.C., Dec. 7, 2011 — A two-year review of Kentucky’s system of capital punishment concludes that the commonwealth doesn’t adequately ensure fairness or sufficiently guard against executing the innocent.  The report, released today by the American Bar Association, calls for a suspension of executions in Kentucky until the identified problems are addressed and corrected.

The Kentucky-based assessment team was comprised of former state Supreme Court judges, a state legislator, state bar leaders, law school professors and other lawyers from the commonwealth.  The team also consulted with a number of state government and judicial entities, law enforcement and criminal justice groups.

“The assessment team in Kentucky is an esteemed group of highly dedicated individuals who are committed to ensuring justice,” said ABA President Wm. T. (Bill) Robinson III, a native of the state.  “The report provides a thorough analysis of the death penalty system, and identifies many areas that need reform,” he said.

The report evaluates Kentucky’s laws, rules, procedures, standards and guidelines relating to administration of the death penalty, and uses 92 benchmarks set by the ABA to evaluate death penalty jurisprudence.  The report found that Kentucky is in full compliance with six protocols, partial compliance with 40 and not in compliance with 26.  The team did not have sufficient information to assess compliance with 20 of the benchmarks.

Assessment team co-chair Linda Ewald, professor emeritus at Louis D. Brandeis School of Law, says that the system in Kentucky does not adequately assure that capital defendants receive fair treatment.  “The problems with the death penalty system are substantial, and need to be addressed so that we also minimize the risk of executing the innocent,” she said.

The report identified the following issues as most in need of reform:

• Inadequate protections to guard against wrongful convictions
• Inconsistent and disproportionate capital charging and sentencing
• Deficiencies and inadequate funding of the capital defender system
• Inadequacies in post-conviction review to correct error
• Capital juror confusion
• Imposition of a death sentence on people with mental retardation and severe mental disability
• Overall lack of data keeping on capital charging and sentencing practices

The report recommends several measures to bring the commonwealth into compliance with ABA protocols, including state-specific measures to address the issues raised in the 438-page report.  The team is recommending a suspension of executions in the commonwealth until problematic issues are rectified.

The report notes that Kentucky has made some progress in seeking to achieve fairness and accuracy in its administration of the death penalty.  Those measures include: the establishment of a statewide capital defender to represent indigent capital defendants and death row inmates; adoption of a post-conviction DNA testing statute to minimize the risk of executing the innocent; and adoption of a racial justice act that seeks to eliminate racial and ethnic bias in application of the death penalty in the commonwealth.

The full report and executive summary are available here.

In 2003, the ABA’s Death Penalty Moratorium Implementation Project, housed in the Section of Individual Rights and Responsibilities, began several comprehensive evaluations of the death penalty, like the one conducted in Kentucky.  The ABA has examined administration of the death penalty in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania and Tennessee.  The Project expects to release additional reports on Missouri, Texas and Virginia.  The reports have not been adopted by the ABA House of Delegates.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

 

11/23 Relevant KY Supreme Court Opinion Summaries

Kenneth Williams v. Commonwealth, 10-SC-138-DG, rendered 11/23/11, and to be published: 

Williams was among a group of nine people standing in the street in front of a vacant house.  Some of the individuals, but not Williams, were smoking marijuana.  Police approached the group and began questioning them.  One man admitted the bulge in his pocket was marijuana.  Two individuals were searched, and guns were discovered on them.  At that point, the remainder of the group, including Williams, was ordered on the ground and asked if they had weapons on them.  When Williams lay down, an officer noticed a bulge in the middle of his back.  It was a handgun.

            Held:  There was a reasonable articulable suspicion of criminal activity on the part of the group that justified an investigatory stop of individual group members. Particularized suspicion as to Williams was not required; he was part of a group that included some people smoking marijuana and some who possessed handguns, and that was sufficient grounds to initiate a stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968).    

 Lawrence Robert Stinnett v. Commonwealth, 10-SC-347-MR, rendered 11/23/11, and to be published: 

Stinnett was convicted of murder and kidnapping.  He was alleged to have beaten  his girlfriend to death because he believed she was cheating on him.

            Held:  (1) Kidnapping exemption did not apply where the restraint of the victim exceeded that which was ordinarily incident to committing the crime of murder. “Appellant could have killed her without taking an extended time to terrorize her.” (2)  General dissatisfaction with appointed counsel is insufficient to support a motion for new counsel.  “A bar complaint or a lawsuit filed by an indigent defendant against his appointed counsel may give rise to good

cause for his replacement, [but] such filings do not warrant an automatic substitution of an assigned public defender.”

Jared Fields v.  Commonwealth, 10-SC-169-MR, rendered 11/23/11, and not to be published: 

First, the Court addressed an issue not raised at trial or by either party on appeal, holding that same sex non-consensual sexual acts can never be rape.  Fields had been charged with both rape and sodomy, as well as complicity to both and sexual abuse for having non-consensual sexual relations with a 16 year old boy.  The Court held it was not palpable error for Fields to be convicted of rape, rather than the proper sodomy, as both crimes are of the same degree.   The Court then addressed arguments raised on appeal and reversed Fields’ conviction for kidnapping as the interference with the victim’s liberty was no greater than needed to commit the sexual crimes.  Contrast the facts in Stinnett v. Commonwealth, 2010-SC-000347, rendered the same day, where the Court upheld a kidnapping conviction as not qualifying for the exemption. 

Contributed by Kathleen Schmidt

Memory and Eyewitness Testimony

In spite of statistics showing that eyewitness misidentification is the most common element in all wrongful convictions later overturned by DNA evidence, witness testimony has remained a gold standard of the criminal justice system, according to The New York Times.

For the first time in three decades, the validity of using eyewitness testimony has come under review by the Supreme Court in a case involving a New Hampshire man who was convicted of theft based on the identification by a woman who saw him from a distance in the dead of night.

Earlier in the year, the New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries. The new changes require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.

When selective attention combines with fear, "you have a very strong memory for a few details," said Elizabeth Phelps, a psychology professor at New York University. "Emotion gives us confidence more than it gives us accuracy."

The problem comes when witnesses bring that certainty to the entire memory. In crimes that involve a weapon, Dr. Loftus and other scientists have found that witnesses will fixate on the gun barrel or knife blade but will fail to notice other details as clearly. Yet because they so starkly remember particulars of the weapon and may have the accuracy of parts of their memory affirmed by police officers and prosecutors, witnesses carry an air of assurance into the courtroom.

Read the full article.

Understand the causes of eyewitness misidentification.

Read about sequential lineups and the recent report: A Test of Simultaneous vs. Sequential Lineup Methods: An Initial Report of the AJS National Eyewitness Identification Field Studies

Source - Innocence Project Blog

D.G. - Contempt - No Boykin

D.G. v. Commonwealth of Kentucky, Court of Appeals, Fayette County, TO BE PUBLISHED

The court vacated and remanded the court’s order finding child in contempt as well as accepting the plea on the underlying juvenile status offense.  The Court held that contempt cannot be found where the underlying guilty plea did not receive the full due process rights guaranteed by the Constitution under KRS 600.020(61)(d) and 610.010(11). 

In this case, there was no Boykin colloquy at the time that D.G. entered the plea, in fact the attorney just stated that there would be a stipulation.  Thus, the court held the plea was not clearly voluntary and intelligent since there was little to no explanation of possible consequences of an admission prior to accepting it.  The court reiterated that juvenile’s should have heightened assurance of the protection of their rights. 

Since the plea was entered without these protections, the court orders that the court held D.G. in contempt of were not valid court orders and thus both findings were required to be vacated and the case remanded back to family court.

Contributed by La Mer Kyle-Griffiths

Rowe - RCr 10.02

Rowe v. Commonwealth 2008-CA-916 and 2008-CA-1824

Opinion dated November 18, 2011, Affirming  To be published. 

The issue in this case was whether the defendant’s two RCr 10.02 motions for a new trial based on newly discovered evidence were properly denied by a trial court without an evidentiary hearing.  In the first appeal, the trial court properly held that the RCr 10.02 motion was deficient because the defendant failed to file an affidavit that the evidence could not have been discovered before trial even with the exercise of due diligence.  In the second appeal, the trial court properly held the defendant made two errors. 

First, he failed to file an affidavit detailing the new evidence and explaining why the evidence was not discovered before trial.  Second, the second RCr 10.02 motion did not comply with the procedural requirements of RCr 10.06. 

Trial tip: courts are serious about making defendants follow deadlines and procedures.

Contributed by Robert Yang

AG Eric Holder's Letter to State AGs about Collateral Consequences and Reentry

Public Safety requires us to carefully tailor laws and policies to genuine risks while reducing or eliminating those that impede successful reentry without community benefit.  In evaluating the efficacy of your state's collateral consequences, you have the opportunity to ease the burden on families and communities in your state by ensuring that people who have paid their debt to society are able to live and work productively.   This is why I hope that you will agree to review these law and policies in your state. 

AG_Letter.pdf

NLADA Gideon Alert - Underrepresentation in Kentucky misdemeanor courts

Underrepresentation in Kentucky misdemeanor courts

By David Carroll

“An inevitable consequence of volume that large is the almost total preoccupation in such a court with the movement of cases.  The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudication.  Inadequate attention tends to be given to the individual defendant, whether, in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction.  The frequent result is futility and failure.” [Argersinger v. Hamlin, 407 U.S. 25 (1972), affording the right to counsel to every case with a potential jail sentence.]

“Trampling Over the Sixth Amendment,” a story published November 9, 2011 in CityBeat, is an apt description for how the right to counsel is handled in many of our country’s lower courts, where misdemeanor cases are heard and felony cases often begin.  It is a common occurrence for these courts to attempt to save money and expedite the processing of cases by pressuring the accused to forego his right to legal representation without adequately informing him of the consequences of doing so (such as potential loss of public housing, deportation, inability to serve in the armed forces, and/or ineligibility for student loans, to name a few).  Other courts threaten to impose large fines and costs if a client insists on receiving legal representation, and some simply refuse to appoint an attorney in direct violation of Argersinger and the Sixth Amendment.
 
The CityBeat story focuses on two northern Kentucky counties where the desire for speed over due process seems especially egregious (Kenton and Campbell).  A report from the Kentucky Department of Public Advocacy (the statewide public defender program) notes that on average only 29.5% of all misdemeanor defendants get counsel in Kentucky.   Kenton and Campbell counties fall well below even that average.  In Kenton, only 7.8% of misdemeanor defendants qualified for counsel over the last three years, while less than 5 out of every 100 people facing misdemeanor charges in Campbell County received a public defender (4.5%) over the same period.
 
As one public defender describes it, “judges just don’t want to slow their dockets down,” and the judges assume defendants are “waiving their right to a public defender unless indicated otherwise.”  Our courts are supposed to protect defendants by ensuring that, before they waive their right to counsel and plead guilty, judges confirm the defendant understands the rights he is giving up. According to a public defender quoted in the CityBeat story, no discussion ever takes place to determine the validity of the waiver in these Northern Kentucky counties.  “Someone might be working at Skyline Chili, trying to support a family.  Yes, they’re employed, but that doesn’t mean they’ve got money to hire an attorney.  I sat in on one court session when the first thing a judge said to the defendant was, ‘You don’t qualify.’  Of course, they’re not going to question it.  A judge just told them so.” 
 
Short of reclassifying many non-violent misdemeanors to non-jailable infractions, fixing the no counsel court problem in Kentucky will be difficult because of the long history of excessive caseloads in the state.  The Kentucky Department of Public Advocacy (DPA) provides right to counsel services in every jurisdiction in the state, with the exception of Louisville-Jefferson County.  DPA is overseen by the 12-member Public Advocacy Commission.  Central administration and post-trial defenders operate out of the agency’s Frankfort office, with trial services provided by the thirty non-capital branch offices located throughout the state.  Services in Louisville-Jefferson County are provided by the Louisville-Jefferson County Public Defender Corporation, a non-profit defender office under contract with the county.  Commonly referred to as the Louisville Metro Defender, the office operates cooperatively with, but functions separately from, the state Department of Public Advocacy. 
 
Kentucky public defenders work at levels far above national averages.  As stated in the 2010 U.S. Department of Justice, Bureau of Justice Statistics report, State Public Defender Programs, 2007, “defense counsel's workload should be sufficiently controlled to allow defenders the time needed to provide quality representation in each case.  Furthermore, public defenders are expected to decline appointments that exceed the established caseload limits.”  To help policymakers understand how best to control public defender workload, the U.S. Department of Justice's National Advisory Commission (NAC) on Criminal Justice Standards and Goals specified that a public defender should not have more than 150 felony noncapital, 400 misdemeanor, 200 juvenile, or 25 appellate cases per year.  Using these guidelines, the BJS report notes that the Kentucky Department of Public Advocacy operated in 2007 with 327 attorneys when DOJ workload guidelines would require 636 attorneys.  In other words, for every fifty-one attorneys they presently have, they actually need one hundred attorneys to properly handle the caseload.
 
Unfortunately, this is not –- or should not be -- news to Kentucky policymakers.  In August of 1978, the U.S. Department of Justice, National Center for Defense Management noted in a report that the work of the fifty-five attorneys required under national standards was being done by just sixteen Kentucky defenders.  A preliminary review of DPA by The Spangenberg Group, released in 1998, showed that DPA caseload “far exceed[ed]” national standards.  A year later the Final Report of the Blue Ribbon Group (June 1, 1999) concluded that “[h]igh caseloads take an immediate toll on attorney morale and performance, calling into question the level of advocacy provided on behalf of clients.  High employee turnover, and its accompanying perpetual state of hiring and training, has become a fact of life in several of the DPA offices.”  And, a September 2002 report of the ABA National Juvenile Defender Center found that, despite a drop in caseloads in some parts of the state, juvenile cases were still far in excess of national standards. 

This Week's SCOTUS Oral Argument Audio and Transcripts Online

Kawashima v. Holder

Whether a person can be deported for filing a false statement on a corporate tax return under a statute that allows the government to deport anyone convicted of an aggravated felony involving fraud and deceit?

Zivotofsky v. Clinton

Whether courts can enforce a federal statute governing how the Secretary of State is to record the birthplace of American citizens on passports and related documents; and (2) whether a federal law instructing the Secretary of State, if requested to do so, to record the birthplace of U.S. citizens born in Jerusalem as Israel interferes with the President's authority under the Constitution to recognize foreign nations.

Smith v. Cain

1) Whether there is a reasonable probability that the outcome of Smith's trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith's Brady and Giglio/Napue claims

United States v. Jones

(1) Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

Kurns v. Railroad Friction Products Corp.

Do federal laws governing railroad safety prohibit lawsuits against railroads under state law for injuries allegedly caused by the railroads?

National Meat Assn. v. Harris

Whether the Federal Meat Inspection Act which requires slaughterhouses to hold animals that become unable to walk for observation for evidence of disease preempts a state law that requires such animals to be immediately killed.

 

Turner - Gant analysis

Ray Lewis Turner v. CW

rendered on August 12, 2011 by the Court of Appeals - REVERSING AND REMANDING

To be published (CW petition for rehearing pending)

A 2-1 panel of the Court of Appeals ruled that the evidenced seized in a search of Mr. Turner’s car must be suppressed. Turner was stopped for turning without a proper signal while a block from his home. Turner had a license but it was not on his person. He refused to allow the police to consent because the vehicle was not his. The police told him they were calling a drug dog but none came. While Turner was in the truck, an officer saw him moving his arms between his legs and shrugging his shoulders. An open beer can was in the console covered by a hat police thought Turner had on while driving. Turner was given field sobriety tests but was not intoxicated. Turner was patted down, $232 was found, and Turner was arrested for not having his license on him, and was placed in a police cruiser. Police then searched the truck and found baggies with meth under the seat he was sitting in.

The Court of Appeals noted there was no reason the police could not have gotten a warrant to search the vehicle, presumably expressing that there was no exigent circumstances to justify a warrantless search. The Court accepted that Turner was acting nervously, “a fact of dubious importance,” and making movements with his hands.  The Court held, “[T]here are notable exceptions that authorize warrantless searches, but, as forcefully reiterated in Arizona v. Gant, those exceptions have not swallowed up the rule.” It was for the judiciary to decide if one applied.

Contributed by Kathleen Schmidt

Last Week's SCOTUS Oral Arguments Audio & Transcript Available

The Oyez Project at Chicago-Kent has posted audio and transcripts of oral arguments from last week’s six arguments.

• Gonzalez v. Thaler          

(1) Whether the court of appeals was permitted to consider the prisoner's appeal in this federal habeas case; (2) when does the one-year statute of limitations for federal habeas claims start running?

• Lafler v. Cooper            

When a criminal defendant turns down a plea offer based on seriously deficient advice from his lawyer, and then receives a harsher sentence after being convicted by a jury after a fair trial, can the defendant later seek to overturn his sentence on the ground that his counsel was unconstitutionally deficient in advising him to reject the more generous plea offer? If so, what is the proper remedy for ineffective assistance of counsel in that situation?

• Minneci v. Pollard            

Whether federal inmates may sue employees of a private prison company for violations of the Constitution.

• Missouri v. Frye      

Can a criminal defendant who was convicted after a jury trial later argue that his lawyer was inadequate because he failed to tell him that prosecutors had offered a deal to plead guilty in exchange for a lighter sentence? And, if so, what should courts do to correct the lawyer's error?

• Perry v. New Hampshire 

In a criminal case, is a court required to exclude eyewitness identification evidence whenever the identification was made under circumstances that make the identification unreliable because they tended to suggest that the defendant was responsible for the crime, or only when the police are responsible for the circumstances that make the identification unreliable?

• Rehberg v. Paulk          

Whether a government official is absolutely immune from suit for causing an innocent person to be prosecuted by giving perjured testimony to a grand jury.

Featured Case - Marshall - Revocation for failure to pay

CW v. Marshall; CW v. Johnson

Rendered by the Supreme Court of Kentucky on August 25, 2011

To be published (now final)

The Court analyzed the due process requirements that apply when the Commonwealth attempts to revoke the probation/conditional discharge of a person convicted of flagrant non-support for failure to pay current and past support as a condition of release. The Court held that the due process requirements set out by the U.S. Supreme Court in Bearden v. Georgia, 461 U.S. 660 (1983) apply because child support arrearages amount to restitution. The Court of Appeals, had previously adopted that holding in Gamble v. Commonwealth, 294 S.W.3d 406 (Ky. App. 2009). This means that the trial court must consider “whether the probationer made sufficient bona fide attempts to make payments but been unable to do so through no fault of his own and, if so, whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence.” To revoke automatically would be fundamentally unfair otherwise.

            These due process requirements apply even if the defendant agreed to pay support as a condition of probation, settling a question left open by the Court of Appeals in Bearden. The Court held “Bearden recognizes constitutional concerns with revoking probation for nonpayment based on poverty alone.” The trial court should focus on the post-plea financial conditions of the defendant. The trial court already decided the defendant should not be incarcerated at the time of sentencing based on what was known then.

            The Court reminded trial courts that they must make specific findings on the record of the Bearden considerations. The Court held that while under CW v. Alleman findings do not necessarily be in writing, they still must be made specifically on the record and “general conclusory reasons” for revoking probation is not enough.

            Thanks to Josh Nacey for preserving this constitutional argument and putting on significant evidence in Marshall’s case about his good faith efforts to find work and pay his support and his poverty. We should be following the Bearden procedure and objecting under due process grounds if courts do not comply and do not make sufficient fact-finding.

Contributed by Kathleen Schmidt

Featured Case - Ivy - Contempt for Failure to Child Support

CW, CHFS, and Larry Barnes v. Renee Ivy (now Knighten)

Rendered in the Supreme Court on October 27, 2011,

To be published

The Supreme Court issued a well-crafted, 5-2 opinion in a case revolving around a family court order holding a mentally ill woman in contempt for failing to pay $106 in child support when her sole source of income was $25-$50 per month given to her by her public administrator from the remainder of her SSI benefits after her room and board were paid. The trial court modified the base amount of support to $60 at the hearing but also found Ivy to be able-bodied capable of providing financial support to her child, held her in contempt, and ordered Ivy to pay $60 plus $5 towards the arrearage or face arrest and service of 30 days in jail. The Court of Appeals reversed the contempt order as well as the order modifying because they were not supported by the evidence.

    The Court recognized the legislative mandate for allowing support to be ordered and to accrue even against a parent with no present ability to pay because “present circumstances need not be permanent.” SSI benefits are also included in that calculation by statute. However, the Supreme Court affirmed that a trial court always has the “broad discretion” to reduce a parent’s support obligation to less than the minimum amount of $60 if it determines from the evidence that that amount is unjust or inappropriate under KRS 403.211(2). The Court criticized the paucity of findings in the family court’s order supporting the decision to enter a $60 obligation. The Court found that the family court was operating under the “unfair or inappropriate” section of the statute to deviate from the statute, which was in its discretion to do, but erred when it did not explain through facts or law why it set a new amount that was higher than what Ivy received each month from her administrator. That portion of the case was remanded for reconsideration and findings under the standard set by the Court, rather than have the Court “divine” what led the family court to rule that way.

    The Court then distinguished between the ability to set and accrue support and the ability to collect it. A parent’s “ability to pay, …, does determine the extent to which support can be collected. Where there is no ability to pay, it is not contumacious to fail to do so.” The Court agreed with the Court of Appeal that the family court erred in finding Ivy was in contempt for failing to pay her support based on the facts from the hearing. The Court held that while receipt of SSI benefits alone does not compel a finding of inability to pay support, the family court is not free to “simply … disregard the [SSA’s] determinations that an SSI recipient is disabled and needs the full amount of his or her award for subsistence. If earning capacity is to be attributed to the recipient, or if child support is to be demanded from the SSI benefit itself, there must be evidence clearly establishing the recipient’s ability to work or the recipient’s ability to afford the support payment.”  The family court’s finding that Ivy was able-bodied and capable of providing support did not refer to the evidence and was unsupported by the evidence and was an abuse of discretion. The CHFS had relied on the family court’s observations of Ivy at other hearings. About this, the Court held, “While the family court’s courtroom observations are not meaningless, they cannot be the sole basis for the court’s assessment of Ivy’s mental condition, as assessment requiring specialized training.” The Court also noted that Ivy was paying support because the family court had found her unfit to have custody or even unsupervised visits with her baby.

   The Court went through the difference between civil and criminal contempt, finding this was still civil even though it flirted with criminal contempt. The Court found the family court’s coercive remedy for the contempt, i.e. the threat of future incarceration for future violations was not a true purge opportunity and was invalid.

    The Court also rejected CHFS’ attempt to use judicial notice as a method of getting into the record a purported current payment ledger showing Ivy was now paying the support. The Court held that assessing the proprietary of contempt must be based on the evidence before the trial court at the time of the hearing. It also wisely recognized that a payment ledger says nothing about whom or how the support is being paid.

    The Court encouraged courts, after a valid contempt finding, to fashion a meaningful remedy to fit the circumstances, as have been done by other courts.

    Lastly, the Court found that whether the attempt to collect support from Ivy by making her pay from her SSI benefits did not violate the Supremacy Clause, but held whether a constitutional violation occurred would be dealt with on a case-by-case basis.

    Trial tips- First, the result in this case was largely dictated by the excellent work of attorney David Bundrick who made a great record by calling Ivy’s public administrator to testify about her income and SSI benefits. The more great facts that are introduced about the inability of the SSI recipient to do anything other than scrape by, the better chance of defending a contempt violation. Second, the Court left open the possibility of a Supremacy Clause violation in the right circumstances (“does it do major damage to clear and substantial federal interests”). The two interests pitted against each other are the interest in the SSI benefits that are awarded solely for the benefit of the recipient to maintain a basic subsistence and the interest the state has in parents supporting their children. Depending on the evidence, that balance may well shift towards the parent. So attorneys should be making both due process and Supremacy Clause objections where the facts warrant them.

Submitted by Kathleen Schmidt

Featured Case - Buchanan - Costs

Gloria Buchanan v. Commonwealth

2010-CA-1120

Opinion dated October 28, 2011

Not to be published. 

The Court of Appeals, among other things, affirmed the trial court’s decision to impose “court costs, fines, and/or fees in the amount of $295.00” following Ms. Buchanan’s conviction of Wanton Exploitation of a Vulnerable Adult.  The Court of Appeals held that it was not palpable error in this case.  Trial Practice Tip: Object and argue that the client is a poor person and cannot pay court costs, fines, or fees.

Contributed by Robert Yang

Featured Case - Smith - Dismissal with Prejudice

Commonwealth v. John Smith

2010-CA-1703

Opinion dated October 28, 2011, to be published. 

The issue in this case was whether a circuit court may convert a “dismissal of a criminal indictment without prejudice” to a “dismissal with prejudice” nine years after entry of the original dismissal. 

The COA held that, based on Commonwealth v. Sowell, 157 S.W.3d 616 (Ky. 2005), a trial court loses jurisdiction after 10 days, so it cannot convert the dismissal.  Mr. Smith was indicted in October 2000 for Trafficking 1st, Tampering with Physical Evidence, and Possession of Drug Paraphernalia.  Evidence against Mr. Smith was suppressed after a suppression hearing.  Accordingly, the Commonwealth filed a motion to dismiss the indictment without prejudice. 

After more than nine years without any further prosecution on this case, Mr. Smith filed a motion in circuit court to expunge the indictment or dismiss the indictment with prejudice.  The trial court granted the motion to dismiss with prejudice.  The Commonwealth on appeal argued, and the Court of Appeals agreed, that the trial court lost jurisdiction to alter the order of dismissal ten days after its entry. 

The Court of Appeals does offer some possible solutions for trial counsel. First, a defendant can apply to segregate his records held by any public agency and removed from the public record.  Second, and probably the better solution, would be for trial counsel to ask the trial court to exercise its narrow but inherent power of expungement for the purpose of correcting constitutional infractions.  See Commonwealth v. Holloway, 225 S.W.3d 404 (Ky. App. 2007) (court has the right to grant expungements which are not otherwise authorized by KRS 431.076 under “its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights.”).   

Contributed by Robert Yang

NCJA/BJA Webinar: Innovations in Public Defense: Using a Multidisciplinary Approach to Improve Justice System Outcomes

NCJA and the Bureau of Justice Assistance for the next webinar in our monthly series: Innovations in Public Defense: Using a Multidisciplinary Approach to Improve Justice System Outcomes on November 30, 3-4 p.m. Eastern.

Innovations in Public Defense: Using a Multidisciplinary Approach to Improve Justice System Outcomes will focus on two public defender offices who are using innovative programs to improve public safety and client outcomes. These two programs have incorporated a multi-disciplinary approach to public defense which enhances the types of services offered, helps judges make more informed decisions and prevents increased justice system expenditures.

Presenters for this webinar are Robin Steinberg, executive director of the Bronx Defenders and Edward Monahan, commissioner of the KY Department of Public Advocacy.

Also, the PowerPoint slides and the webcast from our most recent webinar, Using Evidence Informed Principles in Juvenile Justice: Lowering Recidivism, Reducing Secure Detention and Promoting Positive Youth Development are available on the NCJA website at www.ncja.org/webinars.

This webinar series is supported by Grant No. 2010-DB-BX-K086 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions are those of the speakers.

KBA Kentucky Law Update Materials Available Online

KY Law Update Complete Materials

Materials available at the above link include

• Kentucky Supreme Court Update
• Legislative Update
• Social Media: Ethical, Practice and Forensic Issues
• Skit Happens: Scenarios that Lead to Ethical and Malpractice Disaster
• Kentucky Court of Appeals Update
• Federal Court Update

 

Spark of Truth: Can Science Bring Justice to Arson Trials? - Discover Magazine

Gregory Gorbett/Eastern Kentucky University

Also see the related article, "Seven Myths About Arson."

On a rainy spring morning in eastern Kentucky, Greg Gorbett prepares to commit arson. His target is a tidy but cheerless one-bedroom apartment with the kind of mauve-colored carpet, couches, tables, and lamps you would find in a cheap motel. Gorbett is not the only one eager to see the place burn. A handful of other fire scientists and grad students from Eastern Kentucky University (EKU) are checking equipment in the test room as well. They have gathered at the EKU fire lab, a concrete structure in an open meadow as close to nowhere as possible, to document in exacting detail the life cycle of a blaze.

Gorbett scans the setup one last time. A foil-covered wire studded with metal probes—a thermocouple array—crosses the ceiling and hangs down the center of the space; it will measure the temperature at one-foot intervals every two seconds. A radiometer shaped like a soup can will detect changes in radiant energy. Bundles of yellow wires will carry the data to a computer-equipped truck sitting out back. There is also a man lying on the floor: James Pharr, a former fire investigator from Charlotte, North Carolina, wearing a fire-resistant suit and oxygen mask, who will record the event with a thermal-???imaging camera.

read the rest of the article

Featured Case - Hall - Confession expert, evidence issues and discovery of witness statements

Steven Hall v. Commonwealth
No. 2010-Ca-001878-MR

Appeal From Boyle Circuit Court
Hon. Darren W. Peckler, Judge
Action No. 09-Cr-00101

Opinion Affirming, (Caperton, Combs and Thompson)
Steven Hall was operating a pontoon boat when he struck and killed his wife, Isabel.  He was convicted of second-degree manslaughter and sentenced to five-years’ imprisonment.  Four issues were decided:

(1) Expert testimony regasrding coerced confessions was inadmissible for the purpose of attacking the credibility of a police officer’s in-court testimony, distinguishing Terry v. Commonwealth, 332 S.W.3d 56 (Ky. 2010) on the facts because Hall didn’t testify and presented no evidence that his statements to the officers were coerced.  Thus the expert’s opinion wasn’t relevant.

(2) Evidence that Hall had a romantic interest in a woman other than Isabel was harmless error given the number of people who saw Hall run over his wife, but error because there was absolutely no evidence that Hall and the other woman had a sexual relationship or that the two planned a future. 
 
(3) It was not error to permit testimony that Hall intentionally accelerated the boat toward Isabel because the witnesses did not testify that Hall intended to kill Isabel but testified only to the facts as they were observed.  Also he was   convicted of recklessness, not intent.

(4) The Commonwealth didn’t fail to give defense counsel witness statements in violation of RCr 7.26.  The witness was interviewed twice and conveyed verbally to the officer that Hall waived Isabel’s dead hand. A witness is not required to confine testimony to “the four corners of his or her written statement.”  The remedy is cross-examination.ditions through the art of cross-examination.

Contributed by Susan Balliet

Featured Case - Taylor - Status as a Victim of DV

Michael Taylor  v. Commonwealth
No. 2010-CA-000674-MR

Appeal From Hardin Circuit Court
Hon. Kelly Mark Easton, Judge
Action No. 01-Cr-00429

Opinion Affirming, (Caperton, Moore, and Stumbo)

The circuit court determined that the KRS 439.3402 motion for relief  from the 85% rule based on status as a victim of domestic violence should have been brought, if at all, either at sentencing, on direct appeal, or by way of Taylor’s motions for RCr 11.42 and CR 60.02 relief.  The Court of Appeals here agrees in a published opinion.

Contributed by Susan Balliet

???Juror Pledge??? [???I will not do research on the internet???] - Jury Room Blog

read complete Jury Room post here

Jurors researching cases on the internet have been a thorn in the side of the justice system for years. The act of researching and bringing information back to fellow jurors (resulting in mistrial) has been called the “Google mistrial”. The problem has gotten so pervasive, a judge in Minnesota has begun a single-subject blog called Jurors Behaving Badly .

 

Here is the actual wording of the juror pledge in the Viktor Bout trial:

I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. Specifically, I will not use the Internet to conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.

Signed under penalty of perjury. 

____________________________

____________________________

(Sign and Print)

 

Dated: New York, New York

October 11, 2011

Case summaries 9/22/11 Kentucky Supreme Court Opinions

1)    Scott Richard Stanton v. Com., 2010-SC-102
    Todd County, Judge Tyler L. Gill,
Opinion Affirming by J. Abramson, To-Be-Published

    Stanton was convicted of rape 1 and sodomy 1 and sentenced to 20 years  Stanton confessed after a social worker told Stanton that she would seek a court order removing his wife’s children unless he cooperated with her and the police.  Held:  this wasn’t coercion and neither KRS 422.110 nor Lynum v. Illinois, 372 U.S. 528 (1903) were violated because there was probable cause to carry out the threat and the threat was conveyed in a professional manner without threatening words or tone of voice:

“This is so notwithstanding Stanton's bipolar disorder and
his low intelligence, for, as the trial court noted, there was no evidence that the investigators sought to exploit Stanton's limitations or that those limitations prevented Stanton from understanding the situation. Because there was neither wrongdoing by the investigators nor pressure to "cooperate" or to confess so great as to overbear Stanton's will, the trial court did not err by denying Stanton's motion to suppress his statements.”

2)    Thomas York, Sr., v. Commonwealth, 2010-SC-240,
    Kenton County, Judge Martin J. Sheehan
Opinion Affirming by J. Cunningham, To-Be-Published

York was convicted of first degree burglary, first degree robbery and second degree PFO and sentenced to 30 years.
      Defendant’s 5th Amendment rights were not violated by being required to recite a neutral phrase –not the threat made by the burglar--before the jury so that the victim could make an in-court identification of his voice. Proper admonitions cured other errors, thus the defendant was not entitled to a mistrial because of a reference to DNA testing or misstatements about his prior criminal record.

3)    Ronnie D. Walker v. Commonwealth, 2010-SC-409
    Jefferson County, Judge Frederic J. Cowan
Opinion Affirming by J. Abramson, To-Be-Published

  The trial court did not commit palpable error in admitting an interrogation tape containing detective’s accusations that Walker was lying and inconsistent, and other irrelevant comments.   Such remarks would have to be extremely prejudicial to merit exclusion. The trial court’s opening remarks informing the jury how to assess witness credibility were not palpably erroneous.    The burglary instruction did not allow for a non-unanimous verdict.

PRACTICE TIP:  On request a defendant is entitled to an admonishment that comments made by interrogators heard during recorded defendant interviews are solely to provide context to the defendant’s responses.
    Note that the issues regarding detective interrogation remarks and the issue regarding the court’s comments informing the jury how to assess credibility appear to have been close issues, and were unpreserved.  Trial attorneys should raise and preserve these issues for a better chance on appeal.

4)    Linvil Curtis Turpin v. Commonwealth, 2010-SC-550
Casey County, Judge Julia Hylton Adams
Opinion Affirming, by J. Abramson, To-Be-Published

Stating that a twenty year sentence cannot be characterized as grossly disproportionate, the Court upheld a 20-year sentence for possession of a firearm by a convicted felon and first degree PFO.  This did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

5)    Larry Ordway v. Commonwealth,  2009-SC-000479
Christian County, Judge Andrew C. Self
Opinion of the Court (split) Affirming in Part, Reversing in Part
To-Be-Published

The Court reversed nine counts of burglary because the instructions given for the burglary of each of nine individual storage units in one storage building were the same and did not differentiate one incident from another, causing a potential non-unanimous verdict situation. The Court also reversed one theft conviction, holding that the theft of two ATVs at the same time from the same place was a single theft.

Despite the fact that Ordway had been found not guilty of possession of a firearm by a convicted felon in a separate proceeding, collateral estoppel did not bar introduction of evidence that Ordway used a gun during the robbery, because it might have been a different gun.

6)    Reginald Lamont Whittle v. Commonwealth,  2009-SC-787
 Jefferson County, Judge Judith McDonald-Burkman
Opinion by J. Noble, Affirming in Part, Reversing in Part
To-Be-Published

Whittle was convicted of possession of marijuana, trafficking in cocaine, tampering with physical evidence and PFO I, and sentenced to 30 years. Finding a Confrontation Clause violation, citing Crawford, Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), the Kentucky Supreme Court reversed the trafficking and tampering convictions, but affirmed his conviction for possession of marijuana. 

The Commonwealth failed to call the lab technician who had tested the cocaine.  Another lab tech did testify, but he had not performed the test and the actual report was introduced. The Court rejected an argument by the state that Melendez-Diaz (and presumably also Bullcoming) did not apply retroactively. The Court also indicated the report would not have qualified as a business record for hearsay purposes. The Court urged that the prosecutor should make sure to introduce sufficient proof to prove the PFO count on retrial.

7)    James Demetrius Mullins v. Commonwealth, 2010-SC-000263
 Fayette County, Judge James D. Ishmael
Opinion by J. Noble, Affirming in Part, Reversing in Part

M
urder (30 years), tampering with physical evidence (5 years) and PFOI-35 years.

The Court reversed the tampering conviction.  The client allegedly had a gun during the crime, fled, and the gun was never found. The police never looked in the logical places the gun could have been, and waited five months to search the crime scene for the gun. The Court said it was reasonable to infer when the defendant fled, he was trying to get away, not to conceal the weapon.

Defendant waived his right to argue entitlement to an EED instruction on appeal.  Instead of simply failing to ask for the instruction, counsel stated affirmatively that he didn’t want the instruction, and said there was “no EED.”   

8)    Commonwealth Of Kentucky v. Angela Peters, 2010-SC-74
Shelby County, To Be Published
Opinion by J. Schroeder, reversing Court of Appeals (writ case)

  Overruling the Court of Appeals and upholding a circuit court order prohibiting the district court from ordering the arresting officer to attend an informal pre-trial conference to be interviewed by the defense.  A witness, even a police officer, has the right to refuse to answer questions by the defense or the prosecution before trial, citing United States v. Medina, 992 F.2d 573, 579 (6th Cir. 1993).

9)    Kenneth Jones v. Commonwealth Of Kentucky, 2009-SC-000221
Carlisle County, Hon. Timothy A. Langford
Opinion by J. Schroeder, Reversing and Remanding, To Be Published

The “no duty to retreat” language of KRS 503.055 applies only to the defendant asserting a self- defense claim, not to the victim.  The trial court erred in giving a “no duty to retreat” instruction regarding the victim’s conduct. 
Jones was asked to characterize the testimony of a jailer and a detective, and  the Court cautioned the trial court not to allow the prosecutor commit these Moss violations on retrial.

Contributed by Susan Balliet

The ???Right-to-Counsel Term??? - ACS Issue Brief

"The 'Right-to-Counsel Term',” an Issue Brief by Mary Schmid Mergler, Senior Counsel for the Criminal Justice Program at The Constitution Project, and Christopher Durocher, Government Affairs Counsel at The Constitution Project. In an increasingly complex criminal justice system, often defined by a disproportionate number of plea deals and the procedural hurdles of the appeals process, respecting the right to counsel afforded by the Sixth Amendment is essential for a fair and just system.

In “The Right-to-Counsel Term,” Mergler and Durocher preview the five cases before the Supreme Court in the 2011-2012 Term where the reach of the Sixth Amendment’s right to counsel will be considered. These cases present an opportunity for the court to “shape the Sixth Amendment right to counsel and related claims in such a way that recognizes the realities of our 21st century criminal justice system,” assert Mergler and Durocher. Such recognition is necessary, Mergler and Durocher argue, to take “steps in the direction of true justice.”

No Place for Kids: The Case for Reducing Juvenile Incarceration - Casey Foundation Report

The Annie E. Casey Foundation released No Place for Kids: The Case for Reducing Juvenile Incarceration, which examines the detrimental impact of America’s over-reliance on incarceration of youth in an in-depth analysis of its effect on youth and public safety. Combining research, data and testimony, the analysis shows that America’s reliance on incarcerating young offenders has not only failed to combat youth crime but also that reducing these rates and closing facilities does not increase juvenile crime rates. Juvenile incarceration facilities:

 •                    Do not reduce future offending of confined youth: Within three years of release, roughly three-quarters of youth are rearrested; up to 72 percent, depending on individual state measures, are convicted of a new offense.

 •                    Do not enhance public safety: States which lowered youth confinement rates the most saw a greater decline in juvenile violent crime arrests than states which increased incarceration rates or reduced them more slowly.

 •                    Waste taxpayer dollars: Nationwide, states continue to spend the bulk of their juvenile justice budgets – $5 billion in 2008 – to confine and house young offenders in incarceration facilities despite evidence showing that alternative in-home or community-based programs can deliver equal or better results for a fraction of the cost.

 •                    Expose youth to violence and abuse: Nearly 50 percent of states have been sued in the last decade alone for persistent maltreatment in at least one of their institutions.  One in eight confined youth reported being sexually abused by staff or other youth and 45 percent feared physical attack according to reports released in 2010.

The report highlights best practices that some states have implemented as alternatives to incarceration. 

 For a copy of the full report, press release and issue brief, visit: http://www.aecf.org/noplaceforkids.

9/16 Court of Appeals - Martin - Faretta hearing & Court Costs

Martin v. Commonwealth

10-CA-322 and 10-CA-1905

9/16/11 Court of Appeals opinion - To be published.

The Court of Appeals held the trial court should have held a Faretta hearing when: the client filed pre- and post-trial pro se motions; the trial court ruled on many of those motions; and the client was also receiving benefit of appointed counsel. By ruling on the pro se motions, the court treated Martin as a pro se litigant.  Accordingly, the court should have conducted a hearing, given the warnings required pursuant to Faretta, and made a finding that his waiver was voluntary and intelligently made. The Court’s failure to do so is reversible error.

 In a 2-1 decision, this panel also distinguished Travis and held that court costs were properly imposed as a condition of probation.  This panel found that the defendant had asked to be released from custody so he could work to support his family and that he was released on probation.  Based on his stated ability to work, the imposition of court costs was not a manifest injustice.  This issue was not preserved at the trial level, so it was reviewed under the palpable error standard.  If this is an issue important to the client, raise an objection to improve the odds of winning on appeal.

Contributed by Robert Yang

October 2011 Advocate now available

 

DPA October 2011 Advocate 

Full Article of An Important Matter of Policy: Why Kentucky Appellate Courts Should Adopt De Novo Review of Pretrial Release Decisions

WAVE TV story on Kentucky Innocence Project client Kerry Porter

LMPD detective looks into inmate's innocence claims

Porter will tell anyone who will listen that he's "actually innocent," which doesn't make him any different from most inmates at the Eastern Kentucky Correctional complex except that since 2006, Porter has the Kentucky Innocence Project working his case.

"They believed in me pretty much from the very beginning," Porter said. "You can kind of see when people believe in you and support what you're saying."

The Innocence Project and the Department of Public Advocacy have a pretty good working relationship with Louisville Metro Police Department detective, Sergeant Denny Butler.

"Their credibility is sort of on the line too," Butler said. "They're not going to call us every day saying, 'Hey we've got another person claiming they're innocent.'"

NY Times article on the power of prosecutors in the criminal justice system

Sentencing Shift Gives New Leverage to Prosecutors

excerpt -

The transfer of power to prosecutors from judges has been so profound that an important trial ritual has become in some measure a lie, Mr. deVlaming said — the instructions judges read stating that the jury determines guilt or innocence, and the judge a proper sentence. The latter part is no longer true when mandatory minimums and, in many cases, sentencing guidelines apply, but jurors often do not know that.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

Without question, plea bargains benefit many defendants who have committed crimes and receive lighter sentences than they might after trial. It also limits cases that require considerable time and expense in court.

But many defendants who opt for trial effectively face more prison time for rejecting a plea than for committing the alleged crime.

Martin - KY Court of Appeals 9/16/11 - Probation Revocation & Court Costs

Martin v. Commonwealth, 2010-CA-000322-MR and  2010-CA-001905-MR

To Be Published - OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

Mr. Martin was charged with Burglary in the Second-degree.  He was found guilty and was placed on probation, which was later revoked.  The appeal of the conviction and that of the revocation were consolidated on appeal. 

Martin attacked his conviction by alleging that the Fayette Circuit Court had erred by not conducting a Faretta hearing prior to accepting, and ruling upon, pro se pleadings.  The Court agreed, but, interestingly, held that the Faretta violation did not impact the later revocation of probation, holding the revocation was not error. 

The majority also found no error in the imposition of court costs on Mr. Martin, an indigent as he had argued for probation “in order to maintain employment and to support his family.”  Dissenting, Judge Taylor argued that no distinction should be made between imposition of court costs on probated vs. no-probated indigents.

Contributed by Linda Horsman

Bell - KY Court of Appeals 9/16/11 - KRE 412

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Bell v. Commonwealth, 2009-CA-002109 Not to be published

REVERSING IN PART, AFFIRMING IN PART, AND REMANDING

 After a Petition for Rehearing was filed by the Commonwealth in response to the first Bell Opinion issued in May 2011, the Court granted the Petition and modified their Opinion.  In Bell I, the COA held that the trial court erred in excluding under KRE 412 evidence that the complaining witness, who alleged having been raped, sodomized and assaulted by Bell, had a history of drug use, particularly since the defense forwarded by Bell at trial involved a consensual exchange of sex for drugs. The COA, in Bell II, held that the error only affected the charges of sodomy and rape, but did not impact the findings of guilt on assault or tampering with physical evidence.  There were two dissenting opinions: 

Judge Combs dissented, arguing that the drug history information was not admissible and its exclusion was not error. Reasoning that KRE 412 seeks to protect victims of sexual assault from allegations of immoral behavior which justify the assault, Judge Combs argued that a “quid pro quo” allegation of sex for drugs was the type of evidence contemplated by KRE 412. 

Judge Moore also dissented, holding that the majority correctly found that the evidence did not meet the bar of KRE 412 and further holding that the trial court’s error of excluding the evidence impacted not only the sodomy and rape convictions, but also the assault and tampering convictions.  “However, because the underlying allegations that lead to these charges are so entwined, I believe the United States Constitution requires granting a new trial on all of the charges, to allow Bell to present his full defense theory to the jury on all of the charges, rather than just on the sodomy charge.”  Dissent of Judge Moore at 18.

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Contributed by Linda Horsman

AJS - A Test of the Simultaneous vs. Sequential Lineup Methods

Cover Image of Report

The analysis of over 850 lineups collected across four sites: the Austin (TX) Police Department, the Charlotte-Mecklenburg (NC) Police Department, the Tucson (AZ) Police Department, and the San Diego (CA) Police Department has been completed. 

To view the report, click here. 

To see a list, prepared by the Innocence Project, of jurisdictions that conduct double-blind sequential lineups, click here.

The initial report follows a landmark decision by the New Jersey Supreme Court (State vs. Larry R.  Henderson) requiring changes in the way courts evaluate eyewitness identification evidence at trial and how juries should be instructed.  The decision takes into account over 30 years of eyewitness identification and memory research. 

Dr. Gary L. Wells, Director of Social Sciences for the AJS Center of Forensic Science and Public Policy and the principal investigator of the EWID Field Studies, was recently interviewed by the New York Times in response to the Supreme Court decisions and the implications it may have on police lineup investigative techniques.  A copy of the article, “Police Lineups Start to Face Fact: Eyes Can Lie,” is available here

Study aims to alter the way police conduct lineups  by Nedra Pickler

A new study says those lineups you see on television crime dramas and often used in real-life police departments are going about it all wrong.

The study released Monday by the American Judicature Society is part of a growing body of research during the past 35 years that questions the reliability of eyewitness identifications under certain circumstances. That research has been taken more seriously in recent years with the evolution of DNA evidence clearing innocents of crimes they were convicted of committing, often based on eyewitness testimony.

The new study finds witnesses should not look at a group of people at once to pick a perpetrator. Instead, they should look at individuals one-by-one with a detective who doesn't know which is the real suspect - known as a double-blind lineup to avoid giving witnesses unintentional cues - preferably on a computer to ensure appropriate random procedures are used and to record the data.

The study found witnesses using the sequential method were less likely to pick the innocents brought in to fill out the lineup. The theory is that witnesses using the sequential lineup will compare each person to the perpetrator in their memory, instead of comparing them to one another side-by-side to see which most resembles the criminal.