Grider - Prosecutorial Misconduct

     Commonwealth v. Grider, 09-CA-2080-MR, published.Court of Appeals, August 12, 2010

      The Commonwealth appealed a trial court’s order granting Grider’s motion to dismiss an indictment charging him with 15 counts of trafficking in a controlled substance and bribing a witness.  The Court of Appeals reversed and remanded.  Grider owned three pharmacies.  In the course of investigations against him, 124 boxes of documents were seized from his pharmacies.  Grider sought access to those documents and the trial court ordered the documents to return the originals or make copies to Grider.  Over two years later, Grider filed a motion to dismiss the indictment or to hold the case in abeyance for the Commonwealth’s failure to turn over the original documents or to provide meaningful access to the documents.  The trial court agreed and dismissed the indictment without prejudice.  The Court of Appeals reversed the trial court’s dismissal because the trial court did not try to compel compliance by a less severe penalty, e.g., using its contempt powers or refer any “recalcitrant attorney to the KBA for appropriate disciplinary proceedings.”  

     Practice Tip: before asking for a dismissal of an indictment due to a prosecutor’s misconduct, first ask the trial court to use its contempt powers or refer the prosecutor to the KBA for disciplinary proceedings.

     Contributed by Robert Yang

DPA East Region Awards

Earlier this month the DPA's Eastern Region gave out their first award.

Horizon Award.  Given for the best legal argument or effort to expand and protect client rights.  The 2011 winner was Angela Darcy for her successful efforts to “kick” KAPS out of Pike County.  The result has been a change in how fines are collected in Pike County.

Sleuth Award.  Given to the investigator whose significant investigation changed the course of a case.   The 2011 winner was Marvin Montgomery for his obtaining a statement that so altered a  difficult case that during jury selection a plea agreement for a misdemeanor was reached.   

Above and Beyond Award.  Given to the person or person whose efforts created a second chance for a client.  This year’s co-winners were Julie Edwards who managed to keep track of the multiple sets(in batches of 200 at a time) of jurors in two different counties in the Jackson trial and Myles Holbrook whose advocacy on behalf of a juvenile client with mental illness and a history of  violence resulted in all charges being dismissed and an investigation opened for a foster father for sexual abuse.  

Big Hitter Award.  Given to the person or person whose case attracted (often unwanted) media attention and whose case proved to be particularly difficult. This year’s winners were the Clayton Jackson trial team consisting of Barbara Carnes, Roger Gibbs, Randy Edwards, Julie Edwards, Mike Parks, and Mary Gina Conner.  This team tried this case in two counties, went through several hundred jurors and spent 35 days in trial.  Most significant no death verdict.

Two special awards.   The first was the Keystone Award.  Just as  a Keystone is one of the most important stones in holding a structure together, this award was for the person who kept it all together for an office as it moved from one location to another, took on new assignments and yet maintained a high degree of professionalism during some of the most trying of times and unexpected circumstances.  The 2011 award winner was Diannah Arnett of the Prestonsburg office.

The second special award is the Catalyst Award and is for the person we wanted to recognize as having made significant changes.   A catalyst is defined as a change agent that when added to the mix speeds up the reaction and produces something new.   For her outstanding work in Morehead as well as her willingness to train all across DPA the 2011 winner is Sarah Johnson.

Featured Case - Hurt - Improper Expert Testimony

Paul Hurt v. Commonwealth, 10-CA-343-MR, unpublished. 

While unpublished, this is an important case for two reasons.  Hurt was convicted of several counts of sodomy and sexual abuse against his step-daughter.  Even though there were no physical evidence of any abuse, the jury still convicted him based in part on the testimony of Dr. Sally Perlman.  Dr. Perlman examined the step-daughter after her allegations of sexual abuse and concluded there were no findings of sexual abuse.  However, Dr. Perlman was able to testify that the step-daughter, during the exam, laid “there like a wet noodle.”  Because the child was so relaxed during the examination, Dr. Perlman testified that she believed the child had been sexually abused.  According to the Kentucky Supreme Court, Dr. Perlman’s testimony should not have been allowed - it is improper to admit "evidence of a child’s behavioral symptoms or traits as indicative of sexual abuse . . . on grounds that this is not a generally accepted medical concept.”  Bell v. Commonwealth, 245 S.W.3d 738, 745 (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008)." 

Because testimony that a child’s relaxed behavior was consistent with that of a child who had been sexually abused was inadmissible, trial counsel performed deficiently in failing to object to this testimony.  The Court of Appeals did not reverse Hurt’s conviction due to the Court’s belief that the detailed nature of the step-daughter’s testimony would not have changed the trial outcome, i.e., there was no prejudice.  Even so, chances of a defendant winning at trial should be improved by keep this inadmissible evidence out. 

Practice Tips:  1) use a Daubert hearing to prevent this type of behavioral expert from coming in; and 2) object if  “wet noodle” evidence does come in.

Contributed by Robert Yang

Aug 25 Kentucky Supreme Court Opinions available

Click here to access the August 25 Minutes.

Watch for future posts with more detailed information about criminal law decisions.

New Jersey Supreme Court Issues Landmark Decision Mandating Major Changes in the Way Courts Handle Identification Procedures

Innocence Project Press Release

Relying on Scientific Research on Memory and Identification, Court Says Standard Set by U.S. Supreme Court 30 Years Ago Must Be Revised

Yesterday  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, designed to reduce the likelihood of wrongful convictions by taking into account more than 30 years of scientific research on eyewitness identification and memory, require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.   

“The New Jersey Supreme Court has said that the legal architecture set by the U.S. Supreme Court 30 years ago to evaluate identification evidence must be renovated. This is a decision that will ultimately affect every state and federal court in the nation,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “The court has recognized the tremendous fallibility of eyewitness identifications, and based on the most thorough review of scientific research undertaken by a court, has set up comprehensive and practical guidelines for how judges and juries should handle this important evidence.”

The court’s decision requires judges to more thoroughly scrutinize the police identification procedures and many other variables that affect an eyewitness identification. The court noted that this more extensive scrutiny will require enhanced jury instructions on factors that increase the risk of misidentification. These factors include: 

• Whether the lineup procedure was administered “double blind,” meaning that the officer who administers the lineup is unaware who the suspect is and the witness is told that the officer doesn’t know.
• Whether the witness was told that the suspect may not be in the lineup and that they need not make a choice.
• Whether the police avoided providing the witness with feedback that would cause the witness to believe he or she selected the correct suspect.  Similarly, whether the police recorded the witnesses’ level of confidence at the time of the identification.
• Whether the witness had multiple opportunities to view the same person, which would make it more likely for the witness to choose this person as the suspect.
• Whether the witness was under a high level of stress.
• Whether a weapon was used, especially if the crime was of short duration.
• How much time the witness had to observe the event.
• How far the witness was from the perpetrator and what the lighting conditions were.
• Whether the witness possessed characteristics that would make it harder to make an identification, such as age of the witness and influence of alcohol or drugs.
• Whether the perpetrator possessed characteristics that would make it harder to make an identification.  Was he or she wearing a disguise?  Did the suspect have different facial features at the time of the identification?
• The length of time between the crime and identification. 
• Whether the case involved cross-racial identification.

To provide courts with these more enhanced jury instructions, the court gave the Criminal Practice Committee and the Committee on Model Criminal Jury Charges 90 days to submit proposed revisions to the current jury instructions on eyewitness identification, specifically directing them to consider the model jury instructions submitted by the Innocence Project.

The court’s decision stems from the 2004 conviction of Larry Henderson, a Camden man who received an 11-year prison sentence for reckless manslaughter and weapons possession related to a fatal shooting in January 2003. He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines, issued in 2001, for conducting identification procedures. The appeals court agreed and ordered a new hearing on the admissibility of the photographic identification of Henderson. Before that could occur, the state appealed, and the New Jersey Supreme Court decided that an extensive inquiry into witness identification procedures currently used by law enforcement was necessary.

The New Jersey Supreme Court appointed a Special Master to review the legal standard for the admissibility of eyewitness testimony known as the “Manson test,” established by the United States Supreme Court in 1977 and fully embraced by 48 out of 50 states, including New Jersey in 1988 in State v. Madison.  In addition to the parties to the litigation, the court invited the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to participate in an inquiry by the Special Master who considered over 200 scientific studies and heard from some of the nation’s most respected experts on eyewitness identification before issuing findings to the court in June 2010. 

The court remanded the Henderson case back to the trial court for further review in accordance with the decision. The decision will apply to all future cases, but will not be applied retroactively with the exception of the companion case, State v. Chen, in which the court held that suggestive identification procedures that resulted from private actors would also be subject to court scrutiny to ensure the reliability of the identification.  

Download the decision here. 

Download the legal findings that the Innocence Project submitted to the court, which includes the model jury instructions.

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing. Additional information about eyewitness misidentification is available here. 

Featured Case - Ward - Traffic Stop and Automobile Search

Ward v. Commonwealth, 10-CA-000732, Court of Appeals 

TO BE PUBLISHED

In Ward, an officer testified that he stopped a car after he witnessed it make a right turn without stopping at a stop sign.  The officer claimed that the two men inside appeared nervous and he recognized them as persons with “known drug violations.”  When the officer requested identification, the other occupant (Garner) gave his driver’s license.  Ward only gave the officer his Social Security number.  It took the officer five to ten minutes to run an identification check due to, according to the officer, Ward only giving his Social Security number.  After learning that no warrants were outstanding, the officer returned to the car.  Eight to ten minutes had transpired to this point and the officer had yet to write the traffic citation.  The officer asked Ward for permission to search the car.  Ward refused.  The officer had a canine unit in his car and conducted a canine search.  Methamphetamines were discovered in the car. 

On appeal, Ward argued that the duration of the traffic stop was unreasonably extended by the canine search.  The Court disagreed.  The Court determined that the eight to ten minutes between the stop of the vehicle and the canine search beginning and the total of twenty to twenty-five minutes from the time of the initial stop to the dog’s alerting on the vehicle was not unreasonable and, therefore, not a violation of the Fourth Amendment.

Contributed by Brandon Pigg

Supreme Court to Revisit Eyewitness Identification - NY Times

34 Years Later, Supreme Court Will Revisit Eyewitness IDs

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

more on Eyewitness Misidentification from the Innocence Project

Read more about the case before the Supreme Court, Perry v. New Hampshire.

USA Today - Justice in the Balance

A USA TODAY investigation documented 201 criminal cases across the nation in which federal judges found that prosecutors broke the rules. The abuses put innocent people in jail, set guilty people free.

Full coverage | Explore cases | Methodology 

Did prosecutors taint Memphis murder trial?

by Brad Heath, USA TODAY (08/17/2011)

Michael Rimmer's attorneys are pursuing an extraordinary strategy to try to save his life. They want a Tennessee appeals court to find that misconduct by prosecutors and police here was so pervasive that the entire Shelby County District Attorney General's Office should be disqualified from the case, and that a new prosecutor should be brought in to review the evidence.

Prosecutors' conduct can tip the scales

by Brad Heath and Kevin McCoy, USA TODAY (09/22/2010)

A USA TODAY investigation found that prosecutors have repeatedly violated their duty to seek justice in courtrooms across the country. The abuses have put innocent people in prison, set guilty people free.

D.C. court asked to disbar federal prosecutor

by Brad Heath, USA TODAY (03/08/2011)

Regulators asked the District of Columbia's highest court on Tuesday to strip a former federal prosecutor of his law license for his "illegal and unethical" conduct during a series of high-profile murder cases in the mid-1990s.

MAP, DATABASE: Explore misconduct cases

USA TODAY's investigation documented 201 cases in which judges threw out convictions or rebuked prosecutors. Examine the cases we identified and explore an interactive map.

Justice Dept. office to punish prosecutors' misconduct

by Brad Heath and Kevin McCoy, USA TODAY (01/19/2011)

The Justice Department created a new internal watchdog office to make sure federal prosecutors face swifter and more consistent punishment if investigators find that they committed misconduct, following a USA TODAY investigation.

VIDEO: Wrongfully jailed

Video by Rhyne Piggott, USA TODAY (09/22/2010)

Nino Lyons served almost three years in jail after he was convicted of trafficking cocaine. It was the evidence jurors never got to hear that eventually set him free.

Justice Dept. ensures prosecutors brush up on duties

by Brad Heath, USA TODAY (09/22/2010)

The Justice Department is taking new steps to make sure federal prosecutors live up to their constitutional duty to turn over evidence to the people they charge with crimes.

CLOSER LOOK: Prosecutor misconduct takes many forms

Misconduct can take a variety of forms. Here is a sampling of the more common problems USA TODAY's investigation identified.

Not guilty, but stuck with big bills, damaged career

by Kevin McCoy and Brad Heath, USA TODAY (09/27/2010)

A 1997 law requires the Justice Department to repay the legal bills of defendants who win their cases and prove that federal prosecutors committed misconduct or other transgressions. But Morris didn't get anything from Washington.

VIDEO: Fighting and winning

Video by Garrett Hubbard and Maxine Park (09/27/2010)

Richard Holland Jr. and his father, Richard, who headed a community bank in rural Virginia, were awarded nearly $1 million to repay their legal bills after a judge ruled a federal prosecution against them had been “vexatious.”

Va. bankers scored a rare victory against federal prosecutors

by Kevin McCoy, USA TODAY (09/27/2010)

Richard Holland Jr. beat the government -- twice. But neither victory made up for nearly eight years of anguish.

Prosecuting offices' immunity tested

by Brad Heath and Kevin McCoy (10/0
5/2010)

Americans can sue almost anyone for almost anything. But they can't sue prosecutors. Not when prosecutors hide evidence that could prove someone's innocence.

High court questions training of prosecutors on constitutional obligation

by Brad Heath, USA TODAY (10/06/2010)

Supreme Court justices questioned Wednesday whether additional training for prosecutors would have prevented the constitutional violations that put a New Orleans man on death row for a murder he didn't commit.

Federal prosecutors keep jobs even after cases collapse

by Brad Heath and Kevin McCoy, USA TODAY (12/09/2010)

What happened to the baby girl is a mystery. What happened to the federal prosecutor who handled the case against Sabrina Aisenberg's parents is not.

Defendant, prosecutor in case say they were wronged

by Kevin McCoy and Brad Heath (12/09/2010)

A federal appeals court ruled a prosecutor had interfered with the constitutional rights of an outdoorsman he had sent to prison. Then, an administrative law judge ruled that the Department of Justice failed to prove most of the misconduct it made in disciplining the prosecutor.

States can discipline prosecutors, rarely do

by Brad Heath and Kevin McCoy, USA TODAY (12/09/2010)

Federal prosecutors who violate laws or cut corners to win convictions face almost no risk of losing their ability to practice law, USA TODAY has found.

Justice Department responds

The Justice Department says in a statement that USA TODAY's "selective review of a handful of the many thousands of cases ... does little to provide an accurate and representative picture of the honorable work done by federal prosecutors."

Prosecutor misconduct lets convicted off easy

by Brad Heath and Kevin McCoy, USA TODAY (12/27/2010)

Although misconduct by prosecutors has put put innocent people in prison, it also has set guilty people free by significantly shortening their prison sentences. In some cases, they served no additional time. New crimes sometimes followed.

Statement from the Justice Department

Justice Department spokeswoman Jessica Smith said USA TODAY's investigation "misleads readers by providing a statistically inaccurate representation of the hard work done by federal prosecutors daily in courtrooms across the country."

National Juvenile Justice Network - Safe and Effective School Disciplinary Policies and Practices

NJJN Policy Platform - Safe and Effective School Disciplinary Policies and Practices

NJJN's latest policy platform includes recommendations on safe and effective school disciplinary policies and practices.  The recommendations focus on:

Law enforcement and discipline policies
Suspensions and expulsions
Student rights and family engagement
Students with disabilities
Data and racial and ethnic disparities (Disproportionate Minority Contact

Click here to see all NJJN policy platforms.

Law Enforcement and Discipline Policies

• Schools must reject the one-size-fits-all prearranged set of sanctions laid out in zero tolerance policies and instead promote discipline policies that provide individualized assessments and interventions that are appropriate to ensure a safe learning environment.
• Schools must not use law enforcement as a response to non-criminal adolescent misbehavior. If students engage in criminal behavior on school grounds, schools must have graduated responses in place, reserving law enforcement for only the most serious offenses.
• Schools must establish clear guidelines for school personnel and on-campus law enforcement officials
  regarding the role of each in responding to youth behaviors and exactly which infractions may lead to court
  referrals. Referrals to court should be reserved for only the most serious infractions.
• To eliminate or curtail the use of mechanical restraints, chemical restraints, corporal punishment, and isolation, law enforcement and school officials must be trained on the traumatic effects of these practices, as well as child and adolescent development, appropriate methods for de-escalation, and safe and effective responses to youth behaviors.
• Schools must focus on prevention and effective intervention as responses to disciplinary issues. Positive
  Behavioral Interventions and Supports, peer juries, restorative justice processes, diversion, mentoring, mental health counseling, and restitution can be particularly effective in improving school safety and promoting positive youth development.
  

"Getting it Right" Videos from The Innocence Project

The Innocence Project today launched a new multimedia resource on the central causes of wrongful convictions and proven reforms to prevent injustice.  "Getting it Right"  features videos, case studies and in-depth research on forensics, false confessions, eyewitness identification, informant testimony, defense representation and conduct by police and prosecutors.

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 6

Myth No. 6:  I have to file a copy of the subpoena before it is binding on the witness.

Until I started writing this article, I thought that was the rule.  All the prosecutors with whom I have litigated file subpoenas for officers and witnesses in the courthouse as a rule.  If a witness does not show for court, the judges first check the file to see if a copy of the subpoena is there before issuing a warrant for the witness or resetting the case.  Notwithstanding all of this local practice, there is no authority anywhere that says the subpoena has to be filed to be binding.  All that RCr 7.02(4) requires for proof of service is an affidavit endorsed upon the subpoena by the person serving the subpoena.  While interests of judicial expediency would be accommodated if the copy of the subpoena were already in the file, the rule seems to allow counsel to produce proof of service from his or her own file at the time of trial, when a witness does not show. 

Most of the time, especially when the witnesses are already known to the Commonwealth, counsel would want to file the subpoenas to avoid losing them, or having to make an argument why they do not have to be filed.  However, sometimes there is that “surprise” witness that the Commonwealth does not know about, and filing the subpoena would threaten to spoil that surprise.  In that instance, it might be best to not file the subpoena, and take your chances that if the witness is a no-show, the judge will not force you to trial for failure to file the proof of service.

an excerpt from The Subpoena: Ethical Use and Unethical Myth-Use by Scott West

New Resource on Fingerprints from the Scientific Working Group

"The dynamic and active nature of human information processing enables us to become experts but also makes us distort incoming data and make erroneous decisions. These vulnerabilities are not limited to fingerprint experts and apply equally to other domains. However, the importance of fingerprint evidence being reliable and unbiasable requires that these potential weaknesses be addressed." 

- Chapter 15, page 20

The Fingerprint Sourcebook

by Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST), et al. August 2011

SWGFAST, established in 1995, is one of several

Scientific Working Groups (SWG). The overall intent of Scientific

Working Groups is to improve forensic science practices and build

consensus amongst federal, state, and local forensic laboratories and

practitioners. The SWGs are a focal point for discussion on key issues

confronting various forensic science disciplines which will lead to the

establishment of guidelines and standards through consensus and general

acceptance. The guidelines and standards published by them are widely

recognized by the forensic community, the courts, and the forensic

laboratory accrediting bodies.

The membership of SWGFAST is comprised of a diverse

group of dedicated and professionally recognized individuals. This

includes not only friction ridge examination experts from law

enforcement agencies, but also defense experts, researchers,

instructors, academicians, laboratory managers, and others

The Fingerprint Sourcebook aims to be the definitive resource on the science of fingerprint identification. The Sourcebook was prepared by the International Association for Identification and topics covered include the anatomy and physiology of friction ridge skin (the uniquely ridged skin found on the palms and soles); techniques for recording exemplars from both living and deceased subjects; the FBI's Automated Fingerprint Identifications Systems (AFIS); latent print development, preservation and documentation; equipment and laboratory quality assurance; perceptual, cognitive and psychological factors in expert identifications; and legal issues.

Download:  

• The complete Fingerprint Sourcebook (pdf, 422 pages)
• Table of Contents and Preface (pdf, 6 pages)
• Chapter 1: History (pdf, 18 pages)
  By Jeffery G. Barnes
• Chapter 2: Anatomy and Physiology of Adult Friction Ridge Skin (pdf, 26 pages)
  By Alice Maceo
• Chapter 3: Embryology, Physiology, and Morphology (pdf, 26 pages)
  By Kasey Wertheim
• Chapter 4: Recording Living and Postmortem Friction Ridge Skin Exemplars (pdf, 18 pages)
  By Brent T. Cutro, Sr.
• Chapter 5: Systems of Friction Ridge Classification (pdf, 26 pages)
  By Laura A. Hutchins
• Chapter 6: Automated Fingerprint Identification System (AFIS) (pdf, 36 pages)
  By Kenneth R. Moses; Contributing authors Peter Higgins, Michael McCabe, Salil Probhakar, Scott Swann
• Chapter 7: Latent Print Development (pdf, 68 pages)
  By Brian Yamashita and Mike French
• Chapter 8: The Preservation of Friction Ridge Information (pdf, 21 pages)
  By Laura A Hutchins
• Chapter 9: Examination Methodology (pdf, 26 pages)
  By John R. Vanderkolk
• Chapter 10: Documentation of Friction Ridge Impressions: From the Scene to the Conclusion (pdf, 20 pages)
  By Alice V. Maceo
• Chapter 11: Equipment (pdf, 13 pages)
  By Julieanne Perez-Avila
• Chapter 12: Quality Assurance (pdf, 12 pages)
  By M. Leanne Gray
• Chapter 13: Fingerprints and the Law (pdf, 26 pages)
  By Andre A. Moenssens and Stephen B. Meagher
• Chapter 14: Scientific Research in the Forensic Discipline of Friction Ridge Individualization (pdf, 31 pages)
  By Glenn Langenburg
• Chapter 15: Special Abilities and Vulnerabilities in Forensic Expertise (pdf, 24 pages)
  By Tom Busey and Itiel Dror
• Appendices (pdf, 28 pages), includes:
  • Appendix A: Author and Reviewer Biographies
  • Appendix B: The Origin of the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST)
  • Appendix C: Members of SWGFAST
  • Appendix D: SWGFAST Standard Terminology of Friction Ridge Examination, Ver. 3.0

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 5

Myth No. 5:  I actually have to place the subpoena in the witness’s hand before he is bound by it.

Stories abound, many of them apocryphal, about hiding subpoenas in pizza boxes or wrapping them up in gift boxes because of the mistaken belief that you have to physically place the subpoena in someone’s hand before you can claim it has been delivered.  Actually, all that is required is that an attempt to deliver be made.  RCr 7.02(4) provides that “service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed.”

Yelling to a person that you have a subpoena for them as they are bolting down an alley satisfies the “offering to deliver” requirement.  Likewise, while there is no case law to support it, an offer to deliver a subpoena made over the telephone meets the requirement.  If the offer is accepted, actual delivery of the subpoena should be attempted.  But if the offer is declined, RCr 7.02 ought to be satisfied.

an excerpt from The Subpoena: Ethical Use and Unethical Myth-Use by Scott West

Pew Center News Brief - 2011 Kentucky Reforms Cut Revidivism, Cost

Opening statement from the brief

    Problem: Kentucky had one of the fastest growing prison populations in the nation over the decade ending in 2009, rising by 45 percent, compared to 13 percent growth for all states.

    Consequences: Corrections spending jumped 214 percent over the two decades ending in FY 2010, to $440 million. Meanwhile, recidivism rates remained above levels seen in the 1990s, despite slight improvement in recent years.

    Drivers: Data showed an increase in overall arrests and court cases, as well as rising incarceration rates for technical parole violators. Analysis also showed offenders in Kentucky were far more likely to be sentenced to prison than the national average and an increase in the percentage of all admissions who were drug offenders.

    Reforms: With technical assistance from the Pew Center on the States, the Task Force on the Penal Code and Controlled Substances Act produced a set of reforms leading to the Public Safety and Offender Accountability Act of 2011. Passed unanimously in the Senate and with just one dissenting vote in the House, the law concentrates expensive prison beds on serious offenders, reduces recidivism by strengthening probation and parole, and establishes mechanisms for measuring government progress over time.

    Impact: The legislation is expected to enhance public safety and improve the performance of Kentucky’s correctional system on multiple levels. The state estimates the reforms will save $422 million over 10 years, allowing inc

Complete News Brief

The Kentucky Department of Public Advocacy Alternative Sentencing Social Worker Program Wins NCJA Outstanding Criminal Justice Program Award

Public Advocate Ed Monahan receiving award

(from NCJA Press release)

The National Criminal Justice Association is pleased to honor the Kentucky Department of Public Advocacy Alternative Sentencing Social Worker Program with its 2011 Outstanding Criminal Justice Program Award for the Southern Region.  This program was recognized for providing social worker services to indigent non-violent defendants who are represented by Kentucky public defenders. The social workers develop plans that provide personalized rehabilitative support that address pivotal aspects of offenders life such as addiction, physical health, mental health, housing, education, employment, family and other issues to improve the client’s successful function in the community and reduce recidivism.

The use of social workers to guide offenders into effective treatment programs is advantageous for multiple reasons including: their assistance is covered by attorney-client privilege—which increases the likelihood and effectiveness of early intervention; they improve coordination and cooperation among criminal justice agencies and treatment providers; and their early involvement in a case increases the likelihood of pretrial release or probation.

Each social worker has saved 10,000 days of incarceration and $100,000 in incarceration costs. If the DPA social worker program was implemented across the state of Kentucky, the projected savings to taxpayers would be estimated at $3.1-$4 million per year.

Secretary of the KY Justice and Public Safety Cabinet, J. Michael Brown praised the program saying, “the DPA Alternative Sentencing Social Worker Program has shown itself to be an important tool for the criminal justice system, by guiding offenders into effective treatment programs, and ultimately reducing recidivism and decreasing incarceration costs.  A study of the pilot program by the University of Louisville Kent School of Social Work determined that, between October 2006 and October 2007, 82% of adult defendants who received DPA social worker services and who were released from incarceration were still in the community 6 months later.”

The NCJA Outstanding Criminal Justice Program Awards are a way to seek out and share successful criminal justice programs. The purpose of these awards is to highlight programs that:

•    Address an important criminal justice issue;
•    Demonstrate effectiveness based on program goals;
•    Are a good example of used of federal funds to initiate the program that is subsequently supported through state and local funds or is self sustaining; and
•    Can be easily replicated in other jurisdictions.

For more information about NCJA or the Outstanding Criminal Justice Program Awards, please visit www.ncja.org.

LRC Press Release about Public Advocate's Testimony Regarding PFO laws

(video of the hearing is available at Aug 05 Interim Joint Committee on Judiciary Ed Monahan and Damon Preston's testimony begins 75 minutes in)

The state’s Public Advocate is asking state lawmakers to consider limits on who can be considered a persistent felony offender and violent offender in Kentucky.

Kentucky Public Advocate Ed Monahan told the Interim Joint Committee on Judiciary that “modest adjustments” to the state’s persistent felony offenders (PFO) and violent offender laws would result in more prisoners being released at a time when they are least likely to reoffend, save the state millions of dollars, and create a more balanced criminal justice system where the longest sentences are reserved for felons who Monahan described as more of a risk to public safety.

Today, Monahan said, there are 7,792 inmates in Kentucky sentenced as persistent felony offenders, violent offenders or both at a cost to the state of $169 million. Many are offenders who were convicted of the lowest level, often non-violent felonies.

In fact, Monahan said 1,441 Kentucky inmates are serving an average sentence of 11 years for an underlying offense classified as only a Class D felony, the lowest level felony offense under state law.

“One felony is a serious conviction with serious consequences. But if you look at the 7,700 you have a lot down at the Class D range. A question that one might ask is, do you really want to incarcerate those persons for this aggravated length of time at a significant cost to you?” said Monahan.

Many PFOS in Kentucky today are felons who have never served time for a prior offense, said Monahan. That has been the case since 1976 when, Monahan said, the Kentucky General Assembly tightened the state’s PFO statutes by abolishing the requirement that a person be imprisoned on a prior offense before being sentenced as a PFO and lengthened the time a PFO must serve before being eligible for parole, among other changes. Prior PFO statutes required three prior convictions and two separate periods of incarceration before a person could be sentenced as a PFO, he said.

Instead, the Public Advocate and his staff suggested that state lawmakers consider adjusting the PFO and violent offenders statutes in any number of ways, including eliminating PFO sentencing for non-violent felonies, using PFO status for sentencing of those with two or more prior felonies without a substantial break in criminal activity, repealing the required 10-year period before some PFOs are eligible for parole, an requiring actual imprisonment on prior felonies before a person can be sentenced as a PFO.

For violent offenders, Monahan’s office suggested reinstating Kentucky’s pre-1998 requirement that 50 percent of a violent offender’s sentence, rather than the current 85 percent requirement, be served before a violent offender is parole eligible. The office also suggests that violent offenders be limited to those convicted of six specific crimes including murder as well as rape, sodomy, robbery with a firearm, burglary with a firearm and assault—all in the first degree only.

Changing the PFO and violent offenders statutes would also restore sentencing jurisdiction to judges and juries rather than prosecutors, where it resides now because of legislative changes, said Monahan.

Committee Co-Chair Sen. Tom Jensen, R-London, asked Monahan if he believes the state’s PFO statutes from 1974—which Monahan said were more limited—were a better way to go.

“As a public policy measure…when do we say enough is enough for somebody?” said Jensen. “There comes a point where we have to say, I think we have to say, we just can’t tolerate your behavior.”

Monahan said what changes are made to the law is up to the General Assembly, but added that he is providing facts that will help lawmakers decide if they want to change the statutes or not.

Keeping felony offenders in prison for decades have not shown to be effective in all cases because it carries significant costs and, studies show, older inmates are less likely to reoffend, said Monahan. “The adjustments that can be made (would give) the Parole Board a little more discretion with those folks,” he said.

Right now, Monahan said Kentucky’s PFO and violent offender statutes are some of the broadest in the nation.

 

"Putting the Science in Forensic Science" - American Statistical Association

From The Innocence Project Blog

More than two years have passed since the National Academy of Sciences (NAS) released a groundbreaking report calling for national oversight and research to ensure reliability in solving crimes. One challenge to addressing the recommendations of the NAS report is the federal government’s reluctance to support new spending.

A column this week in AMSTAT News, the membership magazine of the American Statistical Association, recommends clear steps for the federal government to address this issue at minimal cost to taxpayers. Written by two professors and an independent consultant, the column calls on Congress to:

• Require crime labs to make reports and protocols on forensic science readily available on the web;
• Appoint independent scientific committees to evaluate forensic research, identify needs for further study;
• Redirect existing funds to support long-term research;
• Sponsor seminars and courses to educate judges, lawyers and others on forensic disciplines.

The three authors write:

In recognition of budgetary difficulties and political realities, these proposals keep costs to taxpayers to a minimum. Although their enactment would not solve all problems, we believe the proposed reforms are a doable first step toward ensuring that only first-rate science—beholden only to truth and not to law enforcement or any other partisan interest—is used in the courtroom. The integrity of the American judicial system demands that Congress and the administration speedily enact these reforms.

Read the full column.

Read more about the National Academy of Sciences and the need for a National Forensic Science Agency

For more background on the NAS report and weekly forensic news, visit the Just Science Coalition website.

What???s the Risk?

Judges, probationer officers, and parole board members ask themselves this question almost every day.  What is the risk of this person re-offending during pretrial release if I grant an unsecured bond?  What is risk this probationer will commit a new crime and how closely does he need to be supervised as a result?  What is the risk this inmate will re-offend if he is released from incarceration?  This concern with risk is entirely appropriate.  A criminal justice system should not only punish offenders but try to reduce the likelihood of crime as well.  Evidence-based policy-making research suggests at least two important principles affecting management of risk in the criminal justice system:

1.  Find a scientifically reliable way to differentiate between high, medium, and low risk individuals.  The key to efficiency and effectiveness is to get better at tailoring supervision to the level of risk – at pretrial, sentencing or parole.  The first step is to identify the actual risk factors.  This is a relatively simple matter of statistical analysis.  Not all people seeking pretrial release are equally at risk of failing to appear or re-offending.  Not all probationers and parolees are equally at risk of recidivism.  Criminal justice systems tend to squander money, resources and effectiveness by treating everyone the same.  

2.  Increase supervision and treatment of high risk individuals and decrease supervision of low and moderate risk individuals.  The second important finding of the research is that criminal justice systems tend to spend too little time and resources on high risk individuals and too much on low and moderate risk individuals.  In many criminal justice systems, low-risk individuals are burdened with excessive conditions of release which in many cases almost guarantee more court appearances for violations of conditions of release which do not rise to the level of committing another offense.  At the same time, high-risk individuals are not closely monitored on probation and are allowed to commit repeated violations of probation until they eventually do commit another crime.  Research suggests that the best systems use their ability to differentiate between high and low-risk individuals to become more efficient and effective.

That is how costs go down and the crime rate goes down, too.         

For  a more extensive discussion of these principles and their use see the Kentucky Task Force on the Penal Code and Controlled Substances Act Report

Contributed by Glenn McClister

DPA Social Worker Sarah Johnson Appointed to Parole Board

Social worker appointed to Parole Board   The Morehead News

Last week Sarah Johnson was helping criminal offenders in Rowan, Bath, Menifee and Montgomery counties.

This week she has that role for the entire Commonwealth of Kentucky.

Gov. Steve Beshear recently appointed the social worker to the Kentucky Parole Board after her five years of service to the Rowan County-based office of the Kentucky Department of Public Advocacy.

...

“She’s done a phenomenal job for us and our clients,” said attorney Jay Barrett, Johnson’s supervisor in the local DPA office.

“This is great of for Kentucky but it’s a horrible loss for our lawyers, our clients and the DPA,” he added.

Chief Circuit Judge Beth Lewis Maze said Johnson grew into her heart of service after working with her father, Bill Grimes, at the New Hope Clinic in Owingsville. The clinic offers free health services to low-income populations.

Maze said Johnson is well suited for the Parole Board because of the work she’s done at the DPA.

“Sarah’s got a lot of experience being in the trenches that will be beneficial to the parole board,” Maze said.

“She’s had enough experience to cut through the get-out-of jail-free cards. She’s had the opportunity to look at people’s criminal history, and she’s got a background in helping people. I’m excited that we have someone from this circuit on the board,” Maze added.

Complete article

August 2011 Advocate and links to documents cited

August 2011 Advocate

Documents cited in this edition

Amended Executive Summary of Uniform Schedule of Bail Pilot Project Report for 2010 Findings and Recommendations

Amended Uniform Schedule of Bail Pilot Project with Offenses

Do Attorney Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail Douglas L. Colbert, Raymond Paternoster and Shawn Bushway