DPA District Court Manual Now Updated to Include HB 463 Other New Legislation

The third edition of the District Court Manual (47 pages) is now available. 

Revised to include the new pretrial risk assessment scoring used by AOC as of March 1, 2011 and to include all the new provisions of HB121 and HB463 which apply to district court practice – including the very important new provisions regarding arrest, bail and the changes to enhanceable offenses.  The relevant caselaw is up to date and new sections on appealing bail in district court and on earning credit toward old fines and costs under HB 463 have also been included.

Contributed by Glenn McClister  

Featured Case - Equivocal Jurors

In Lemaster v. Com., an unpublished 4/21/11 decision by the Kentucky Supreme Court, the Court granted a new trial for failure to strike a juror who said she would require the defendant to present evidence of his innocence.  More interesting is the fact that the Lemaster Court ducked a second juror challenge, where it was argued the juror's answers were "equivocal."  And in another case decided by the Court on 4/21/11 the Court glossed over another challenge to an “equivocal” juror, when they could have squarely denied it.

Trial attorneys should be moving to strike all equivocal jurors who say, merely, "I hope I could be fair" or "I think I could be fair" or "I'll try my best to be fair."  It appears the Kentucky Supreme Court might be open to considering the issue if properly preserved.  Cf., Burnett v. Com., 2008 WL 746615, 4 (Ky. 2008) (Unpublished), in which the Kentucky Supreme Court analyzes the nature of equivocal responses in the context of a request for counsel, and held that ambiguous, equivocal words like “I don’t know,” and “I’m not really with the laws and stuff” cannot constitute a legally effective request for counsel.

Contributed by Susan Balliett

April 2011 Kentucky Supreme Court Criminal Opinions

Minutes of April 2011 Opinions (16 pages)

Full Criminal Opinions in One Document April 2011 (338 pages) to print from page - click on "File" then "Print(PDF)"

Coming soon - summaries and practice tips for key cases

Use of Out of State Convictions as Enhancer

If the Commonwealth is attempting to use an out-of-state conviction (either felony or misdemeanor) to enhance an offense in Kentucky, there must be statutory authority for such use.  This was the finding of the Court of Appeals in Suttle v. Com..  Suttle deals specifically with the DUI statute but holds that if the legislature is silent concerning the use of convictions in foreign jurisdictions, then they shall not be used.  The statute for Failure to Register is as silent about the use of foreign convictions to enhance as the DUI statute was on that subject (the statute was amended for DUIs after this case was decided).  Suttle also contains good language about how misdemeanor records from other jurisdictions are not as well maintained as ours so your argument is even stronger is the prior offense is a misdemeanor in the state from which it came. 

“We observe that our general recidivist statute (KRS 532.080) is all-inclusive with respect to prior felony convictions. It specifically includes foreign convictions. KRS 189A.010 is silent with respect to DUI convictions from a sister state and, as such, we believe our interpretation of the subject statute is a fair one. Moreover, we observe that the treatment differs as to DUI among the various states. In addition, we envision a practicable problem in proving foreign misdemeanor convictions where records may not be as carefully maintained as in felony offenses. All of this leads us to the conclusion that a policy of using foreign convictions as a basis for enhancement of punishment under KRS 189A.010 is a matter more appropriately directed to the legislature for debate.”  Suttle v. Com., 774 S.W.2d 454 (Ky.App.,1989).

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

New Series on Eyewitness Misidentification

Brandon Garrett analyzes the fundamental issues surrounding eyewitness misidentification in a new series for Slate. After carefully studying the first 250 cases of wrongful convictions, Garrett-a law professor at the University of Virginia School of Law-notes that "eyewitness misidentifications were the single greatest cause of flawed evidence."

Garrett highlights the case of Ronald Cotton to pinpoint some of the key factors that cause faulty identifications. North Carolina college student Jennifer Thompson misidentified Ronald Cotton as her rapist, leading to Cotton spending 10 years in prison before DNA finally exonerated him in 1995.

Ronald Cotton and Jennifer Thompson will be featured speakers at the KBA 2011 Convention in Lexington on June 15th. 

Jennifer Thompson-Cannino and Ronald Cotton

"Kentucky???s overhaul of its criminal justice system this spring is a textbook example of genuine bipartisanship" - The Crime Report

How a ‘Tough-on-Crime’ State Became Smart on Crime

For three decades, Kentucky politicians proved they were tough on crime. At every opportunity, they stiffened sentences and added offenses to the state’s penal code.

They nearly bankrupted the state.

more...

Wall Street Journal on Impact of State Budget Cuts and Indigent Defense

Public Defenders Stretched Thin by State Cuts  Wall Street Journal

States and counties struggling to balance their budgets are cutting spending on public defenders, a move some lawyers say is compromising criminal defendants' constitutional right to counsel.

Providing for that right, enshrined in a 1963 Supreme Court ruling, has grown increasingly expensive amid a dramatic rise in arrests and prosecutions in recent decades.

Spending on indigent defense rose from about $1 billion in 1986 to roughly $5.3 billion in 2008, according to a 2010 report released by the American Bar Association. The increase was partly in response to litigation challenging the adequacy of funding for indigent defense, lawyers said.

The austerity moves stemming from funding constraints these days include laying off public defenders, holding the line on salaries, and reducing spending on the defense's case investigators and staff training.

"The system is not allowing us to provide competent representation," said Edward Monahan, the head of the Kentucky Department of Public Advocacy, which lost about $500,000, or 1.5%, of its funding this year, and faces an additional 2.5% budget cut in the coming fiscal year.

"We are running caseloads in excess of 450 per lawyer....With additional budget cuts to be imposed in [2012] and case assignments continuing to rise, average caseloads will likely exceed 500 new cases per year."

Resources for Graduated Sanctions and Incentives - Reframing Futures Blog Post

by Benjamin Chambers

Research has shown that punishment alone is not the most effective way to to help a young person change his or her behavior -- the primary goal of juvenile drug courts, and, indeed, juvenile probation generally. Instead, a combination of punishment, or sanctions, with incentives, is most effective.

But if you want to act on this information, you're likely to have a number of questions. Here's just a few of the questions that commonly arise:

• 1. Is there a ready-made list of sanctions and incentives we could use?
• 2. Should we start out giving a strong sanction to get the offender’s attention, or should we build up to that?
• 3. Are we coddling offenders by giving them incentives?
• 4. Does it matter how long you wait after the behavior is detected to give a sanction or incentive?

And that's just the beginning.  To help you make sense of the options -- and to give you several lists of ideas for your own graduated sanctions and incentives grid -- I'm posting a number of resources here.

From NCJFCJ (and shared with permission):

• "Making Sense of Incentives and Sanctions in Working with the Substance Abusing Offender," by Susan Yeres, Ed.D., Betty Gurnell, M.Ed., Meg Holmberg, MSW. (This excellent guide is where I got the four questions above -- download it to see eight more common questions, and  answers to all 12.)
• Need ideas for incentives and sanctions? Then try the NCJFCJ's "laundry list." 
• How can you afford to pay for incentives? What if the teen doesn't react the way we thought he or she would? You can find answers to these and other questions in the NCJFCJ's frequently asked questions document.

If your team is working on implementing incentives and sanctions together, you'll probably want these as well, also from the NCJFCJ:

• An incentives and sanctions workbook that NCJFCJ uses in its 1-1/2 day training on the subject to guide teams through the decision-making process.
• A worksheet for sanctions.
• A worksheet for incentives.

No list like this, however, would be complete without acknowledging the work done by Reclaiming Futures' own Justice Fellows -- the probation officers who helped develop the Reclaiming Futures model in our ten foudning sites. In 2005, they created the colorful incentives/sanctions grid you see pictured in this post.

• The Illustrative Graduated Response Grid
• About the grid
  • "The Illustrative Graduated Response Grid is a tool that may be used by treatment providers, corrections personnel and judicial professionals, in responding appropriately to a youthful offender’s behavior."
  • Also, please note that the incentives and sanctions listed are just suggestions. Your community way choose different items.

New OJJDP Fact Sheet - What Works with Serious Juvenile Offenders

The "Pathways to Desistance" research study is a unique study of what works in the juvenile justice system. This large, multi-site research project followed 1,354 serious juvenile offenders for seven years. An informative brief on the study findings was released in 2009 by the MacArthur Foundation; now, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) has released another fact sheet, titled, "Highlights From Pathways to Desistance: A Longitudinal Study of Serious Adolescent Offenders."

Here's what the study found:

• Most youth quit or reduce their offending over time.  Only 8.5 percent of the youth in the study persisted at high levels of offending. As Dr. Mulvey explains in the OJJDP fact sheet,

"Two factors that appear to distinguish high-end desisters from persisters are lower levels of substance use and greater stability in their daily routines, as measured by stability in living arrangements and work and school attendance."

• Providing services and sanctions based on individual need -- factors including substance abuse, mental health needs, family background -- could be more effective than providing them based on severity of the crime and prior convictions. Surprisingly, the researchers found that the youth who persisted in offending and those who reduced their offending behavior got about the same kind and intensity of services.
• In a related finding, the study found that incarceration did not reduce offending. In fact, for the subgroup of serious juvenile offenders who greatly reduced their offending after contact with the justice system -- who spent about 30 percent of the study followup period in institutional care -- incarceration actually increased their offending to a small, but statistically signifcant degree. 

If locking them up didn't help, what did? Community-based services and probation supervision. As Dr. Mulvey writes,

"Youth who received community-based supervision and aftercare services were more likely to attend school, go to work, and avoid further offending during the 6 months after release, and longer supervision periods increased these benefits."

• For many of these youth -- those meeting their definition of "serious juvenile offenders" -- substance abuse treatment is key, as the MacArthur Foundation brief makes clear:

"Levels of substance use and associated problems are very high in these young offenders. More than one-third qualify for a diagnosis of substance use disorder in the year prior to the baseline interview, and over 80 percent report having used drugs or alcohol during the previous six months. Moreover, the level of substance use walks in lockstep with illegal activity over the follow-up period: more substance use, more criminal offending."

Treating youth for at least 90 days, with their family members involved, cut both their substance abuse and their offending, at least during the six months after treatment.  (Tellingly, the sub-study this conclusion was based on, "Substance use treatment outcomes in a sample of male serious juvenile offenders," which appeared in 2009 in the Journal of Substance Abuse Treatment, found that only 25% of the serious juvenile offenders in its sample received treatment that included family members. The study authors speculated that this might be partly because these offenders were being treated in secure institutional environments, rather than the community.)

Kentucky turns supply of sodium thiopental to DEA - AP

Ky. hands over its lethal injection drug to DEA AP

Kentucky has turned over its supply of a key lethal injection drug to the federal Drug Enforcement Administration.

Kentucky Justice Department spokeswoman Jennifer Brislin said in a statement Friday that the state turned over its supply of sodium thiopental to be used as evidence in a case in another jurisdiction.

The drug has been in short supply since its primary manufacturer in the United States, Hospira Inc., stopped making the drug earlier this year.

Sodium thiopental is a fast-acting sedative that is typically the first drug used when putting inmates to death.

 

Update 4:41pm   Tennessee also turns over drug supply