Monday, May 30, 2011

Featured Case - Bennington - Technical Error

Bennington v. Commonwealth, 09-SC-521 (published): 

Appellant was indicted for first degree sodomy allegedly occurring in 1974.  However the first degree sodomy statute did not go into effect until January 1, 1975.   Nevertheless, Appellant was convicted of first degree sodomy.   In the penalty phase, however, the trial court instructed the jury on a penalty range of 1 to 10 years, which corresponded to the penalty range of the closest crime to first degree sodomy existing in 1974, indecent or immoral practices with another, as opposed to the Class A penalty range for first degree sodomy.  There was no objection to this.  While the Court finds this was a technical error, "mere technical error does not necessarily require reversal, especially where the error was not preserved for appellate review and thus only results in reversal if it is palpable and prejudicial."  There was no palpable error because the conduct was criminalized in 1974, and there is no probability of a different result if the jury had been allowed to consider guilt under the predecessor statute of indecent or immoral practices of another.  The Court remands the case to the trial court to amend the final judgment to reflect conviction of indecent or immoral practices of another. 

Justice Cunningham, joined by Justice Scott, filed a dissenting opinion as to this issue, noting the Majority's holding is "slightly bizarre," and observing, "[a]s it stands, this case holds that the circuit court can take jurisdiction of any felony at any time it pleases--as long as the facts developed in the case fit the crime."  The appropriate remedy should have been for the Commonwealth to have had to re-indict Appellant or ask Appellant to agree to be charged by information.

Contributed by Karen Maurer

Wednesday, May 25, 2011

Featured Case - Nash - Sex Offender Registration

Nash v. Commonwealth

The specific rule of law from the case can be summarized as follows: a person will not have to register as a sex offender if they committed the sex offense before July 15, 1994 and were not incarcerated for that sex offense after July 15, 1998.

The facts: Nash was convicted of Third Degree Sodomy in 1993. He served out his sentence on October 1, 1997. At his release, he was required to register as a sex offender. He pled guilty to two separate failure to register misdemeanor offenses prior to the 2006 amendments. After the 2006 amendments, he entered a conditional guilty plea to a felony charge of failure to register.

The opinion: The Supreme Court held that Nash never should have had to register as sex offender. The Sex Offender Registration Act (SORA) did not take effect until July 15, 1994. It only applied to people convicted of a sex offense after it took effect. The SORA was amended in 1998. It required people to register as sex offenders if they were sentenced or incarcerated for a sex offense after July 15, 1998, the effective date of the amendment. The 2000, 2006, 2007, and 2008 amendments did not apply to Nash either. Thus, the SC concluded that the SORA never should have applied to Nash because he was sentenced before 1994 and served out before 1998. The SC reversed his conviction, remanded his case, ordered the Circuit Court to dismiss his indictment and order his release.

Advice: I think the real practice pointer for trial attorneys is that this case serves as a reminder that they must be diligent and meticulous when handling cases that may have relatively simple facts but deal with complex statutes, such as sex offender registration or persistent felony offender.  Ed Monahan sees this case as an example of what some call “ordinary injustice” in the criminal justice system.  Ordinary injustice is the denials of due process and effective assistance of counsel which occur when systemic pressures are allowed to become more important than individual justice in each case.  

Contributed by Karen Maurer

Thursday, May 19, 2011

Public Advocate Ed Monahan's Comments on Commonwealth v. Nash

Commonwealth v. Nash Supreme Court of Kentucky, May 19, 2011

Justice Venters said it well:  “What seems to be readily apparent to us now escaped the attention of his lawyers, the prosecutors, and the judges three times. If true, that must serve as a sobering reminder to all segments of the criminal justice system, including this Court, how easy it is to overlook the obvious, and how quickly one can fall through the cracks in the system.”

One might call this the tragedy of ordinary injustice. The system failed Mr. Nash and likely too many others who have been held illegally to the onerous restrictions placed upon sex offenders in the past two decades. 

The  efforts of DPA Attorney Sam Potter in assisting Mr. Nash to finally receive justice and release from these charges and restrictions are appreciated.  Once final in the Supreme Court, this case for Mr. Nash will be returned to the Fayette Circuit Court, which is ordered to dismiss the case.  Mr. Nash will then be able to file a motion for relief in his other case, which would also be invalidated by today’s ruling. In this case, where the highest court in Kentucky has declared Mr. Nash factually innocent of the charges in both cases, the Fayette Circuit Court should grant his immediate release.

The errors of oversight throughout the history of Mr. Nash’s case can only be avoided by a well-trained and well-funded criminal justice system.  Defenders, prosecutors, and judges all face crippling workloads due to inadequate personnel resulting from insufficient funding.  Well-qualified professionals leave public service because compensation for public attorneys lag far behind opportunities in private practice.  Both problems, insufficient overall funding and a compensation structure that fails to retain many high-quality attorneys, must be addressed before we can be confident there are not more people like Mr. Nash facing injustice in the courts of Kentucky.

I commend the Court, the Court of Justice, for not requiring this case to go through yet another process, but to go ahead and decide the issue for the benefit of the innocent client.

Tuesday, May 17, 2011

Media Coverage and Analysis of Kentucky v. King


In Kentucky v. King, the Court held that police may enter a dwelling without a warrant when they hear evidence being destroyed.  Virtually all of the news outlets that cover the Court, including the Associated Press (via TIME), Reuters, the Christian Science Monitor, ABA Journal, Washington Post, New York Times, USA Today, the Los Angeles Times, and JURIST have coverage of the case.  In what Courthouse News Service describes as a “stinging dissent,” Justice Ginsburg argued that the Court’s decision provided the police with “a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.”  Nina Totenberg of NPR interviews criminal law experts on the effect of the Court’s decision, while at the Volokh Conspiracy Orin Kerr discusses how the ruling might affect computer searches.  And Tim Lynch of CATO@Liberty responds to Justice Ginsburg’s question regarding “how ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity” with this answer:  “a lot less secure.”  

Monday, May 16, 2011

Monday, May 9, 2011

Featured Case - Hall - Instructions on Lesser-Included Offense

Douglas Wayne Hall v. Commonwealth, 2009-SC-000244
Opinion of the Court by Chief Justice Minton- Affirming, in part, and reversing and remanding in part.
Schroder, J., concurs in part and dissents in part by separate opinion.

Hall was convicted of second-degree manslaughter, first-degree assault, first-degree burglary, and first-degree robbery.  Hall argued that a strict same-elements test should be used for determining the appropriateness of instructing on a lesser-included offense, and that under such an approach, the jury should not have been instructed on assault as a lesser- included offense of murder. 

The Supreme Court rejected this approach and followed Perry v. Commonwealth.  A strict elements test calls for looking at the elements of a crime rather than looking at the facts set out in a particular case.  For example, if a person is charged with murder, under a strict elements test, assault could not be given as a lesser- included offense because the state of mind for assault is not included in the elements of murder.  However, under the facts of a particular case, a jury could find assault when someone is charged with murder.  The Court concluded that under the facts of this case, the jury could have found assault.  Hall objected to an assault instruction but asked that if one were given, that a facilitation- to- assault instruction also be given.  The Court found that despite Hall’s denials of knowing of his co-defendant’s intent and of providing a gun to his co-defendant, there was evidence to support an instruction on facilitation to assault.  That is, the jury was not obligated to accept Hall’s denial of knowledge of the co-defendant’s intent or his denial of giving the gun to him and could have inferred Hall did have such knowledge but did not intend to promote the assault.

Contributed by Brandon Jewell

Thursday, May 5, 2011

Featured Cases - Hallum & Jones - Prison Mailbox Rule

Michael Allen Hallum v. Commonwealth, 2009-SC-000762-DG—rendered April 21, 2011.
Joe B. Jones v. Commonwealth, 2010-SC-000049-DG.
Opinion of the Court by Justice Scott- Reversing.
All concur

Consolidated appeal.  Both Appellant’s placed their pro se notices of appeal from the denial of a post-conviction motion and their motions to proceed in forma pauperis in the prison mail system before the due date but they were not marked tendered or filed in the Circuit Court Clerk’s office until after the due date.  The Court of Appeals dismissed the appeals as untimely filed.  The appellants filed for discretionary review in Supreme Court asking the Court to adopt a prison mailbox rule.  While the case was pending on appeal the Supreme Court adopted RCr 12.04(5): “If an inmate files a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is officially marked as having been deposited in the institution’s internal mail system on or before the last day for filing with sufficient First Class postage prepaid.”  This rule was adopted because inmates cannot take the steps other individuals can take to ensure their notice of appeal is actually filed by the Circuit Court Clerk.  As they requested this relief, and this rule was adopted, prior to finality of the post-conviction action they were attempting to appeal, the Court applied the rule retroactively for them and reversed the Court of Appeal’s decision to dismiss their appeals.

Contributed by Brandon Jewell

Wednesday, May 4, 2011

Featured Case - Tunstull - Robbery

Troy Anthony Tunstull v. Commonwealth, 2009-SC-000170—rendered April 21, 2011.
Opinion of the Court Affirming by Justice Schroder.
Venters, J., dissents by separate opinion in which Minton, C.J., joins.

The Appellant was convicted of four counts of second degree robbery.  He contended there was insufficient evidence to convict him because there was no evidence he used or threatened the use of physical force as required by KRS 515.030(1), and thus he should have been granted a directed verdict.  The Supreme Court concluded there was sufficient evidence because an individual, particularly when masked or otherwise disguised, coming into a bank aggressively demanding money is a threat in and of itself. 

Moreover, the Supreme Court concluded that a theft by unlawful taking instruction was not required as a lesser-included instruction because there was evidence of the aforementioned implied threat and because theft does not require a threat.  Moreover, a facilitation instruction was not warranted because the evidence was that the Appellant was either an active participant or that he was not involved whatsoever (according to his testimony) as opposed to being “wholly indifferent” as a facilitator. 

The Court also concluded the trial court did not err by denying funds for a false confession expert because the Appellant did not claim his will had been overcome by police or that his confession was unreliable due to a mental condition but rather that he confessed to try to protect his cousin and that he was able to articulate his reasons for making what he claimed was a false confession at trial. 

Contributed by Brandon Jewell

Featured Case - Birdsong - Robbery and "force" not aimed at victim

Birdsong v. Commonwealth, 2009-SC-000084— rendered April 21, 2011.

Opinion of the Court Affirming (no justice named).

Venters, J., dissents by separate opinion in which Minton, C.J., joins.

In this case, the Kentucky Supreme Court held that a person can be found guilty of second-degree Robbery as long as “force” is used, even if that force is not aimed at a victim, but is instead aimed at inanimate objects.  Mr. Birdsong, after ordering bank tellers in a loud voice to give him the money, slammed through the teller door and pushed computer equipment on the ground.  Two tellers testified that they felt threatened.  In determining the definition of the word “threaten,” the Court used a definition from the American Heritage Dictionary, which defined the word as “1 . To express a threat against. 2 . To be a source of danger to; menace. 3 . To portend. 4. To indicate danger or harm ." American Heritage Dictionary 840 (3d ed. 1992).  Moreover, a "threat" is "l . An expression of an intention to inflict pain, injury, or evil. 2 . One regarded as a possible danger." Id.  There were two dissenters, who noted that the General Assembly intended that the word “threaten” be considered an active word, describing the actions of the accused, rather than a passive word which includes the impressions of the victims. 

Contributed by Brandon Jewell


Sunday, May 1, 2011

John Adams: Founding Defender

The ABA celebrates Law Day this year by picking an individual attorney for its theme – something that has only happened once before since Law Day began in 1958.  In 2009 the ABA picked Abraham Lincoln as its Law Day “hero” – 2009 being the bicentennial of Lincoln’s birth.  This year the ABA has chosen John Adams for his lifelong dedication to the fact that even the most unpopular among us must be given due process and adequate representation. 

For a short article on Adam’s importance, see this ABA Journal
John Adams Gets His Day: The First Lawyer-President Set a Standard for Representing Unpopular Causes

Contributed by Glenn McClister