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.

Supreme Court Preview - Cornell Law School's Legal Information Institute

Important Criminal Cases on the 2011–2012 Docket

Fourth Amendment Rights

In United States v. Jones, No. 08-3034, the Court will rule on the police use of Global Positioning System (“GPS”) tracking devices. The lower court held that the police violated Antoine Jones’ Fourth Amendment rights by secretly installing a GPS tracking device on his car, and operating the device for 28 days, without obtaining a warrant. In addition to deciding whether the prolonged use of a tracking device violates the Fourth Amendment, the Court will address a second question: did the installation of the GPS device on Jones’ car, with neither Jones’ consent nor a warrant, violate the Fourth Amendment. The Court will determine whether this “dragnet” type of monitoring violates the Fourth Amendment, and will resolve inconsistencies in the lower courts regarding GPS tracking.

Post-Conviction Procedure

The Court has granted certiorari on a number of cases addressing the post-conviction procedure to which a convicted prisoner is entitled. In Maples v. Thomas, No. 10-63, a prisoner alleging constitutional violations was denied federal post-conviction review in his capital case because, through no fault of his own, he missed a filing deadline. The Supreme Court has granted certiorari in order to determine whether the Eleventh Circuit was correct in holding that, even though the passing of the deadline was not the prisoner’s fault – and, in fact, was partially attributable to the State’s conduct – there was insufficient cause to excuse the prisoner’s failure to comply with filing requirements.

In Howes v. Fields, No. 10-680, the Court will determine whether separating an inmate from the general population, and questioning him about incidents that occurred outside of the prison, constitutes custody under all circumstances.

In Florence v. Board of Chosen Freeholders, No. 10-945, the Court will address the procedure required prior to strip searching a prison inmate; in particular, the Court will decide whether an official can conduct a strip search without a specific basis for suspicion.

Lafler v. Cooper, No. 10-209, concerns a plea bargain that Mr. Cooper rejected on the basis of erroneous advice from his lawyer. (There is reason to believe, given the facts involved, that Mr. Cooper would have accepted the plea if he had been given better advice.) After a full trial, Mr. Cooper was convicted. During post-conviction review, the Sixth Circuit found a violation of Mr. Cooper’s Sixth Amendment rights. The Court will determine whether these circumstances merit relief, and, if any relief is merited, what form it should take in light of the fact that conviction resulted from constitutional procedures.

Children under 10 - Interim Judiciary Hearing

Lexington Herald-Leader

No Criminal Charges for Children 10 or Younger, Officials Suggest to Legislators

Each year, the misbehavior of about 400 Kentucky children 10 or younger — some as young as 5 — results in criminal complaints on charges including harassment, assault and being beyond the control of an adult.

On Wednesday, three state officials asked legislators on the Interim Joint Committee on Judiciary for a law that would prohibit children 10 or younger from facing criminal charges. Instead, their misbehavior would be addressed through the social service system.

The legislative committee is hearing testimony to see what changes might need to be made during the 2012 General Assembly to current laws, which according to a state court official have allowed 2,704 children 10 or younger to be criminally charged from 2005 to 2010.

Featured Case - Tigue - Absense of Counsel for Withdraw of Guilty Plea

Tigue v. Commonwealth, 2009-CA-000080 & 2009-CA-001279 – rendered September 9, 2011

Reversing and Remanding

 The defendant filed RCr 11.42 and CR 60.02 motions and the Court of Appeals granted relief when it held that the defendant was deprived of counsel at a critical stage of the proceeding when counsel either refused or failed to file a motion to withdraw his guilty plea.  The Court found that the filing of a motion to withdraw a guilty plea is a critical stage of the proceeding, and the absence of counsel at a critical stage of the proceeding is a per se Sixth Amendment violation warranting reversal of a conviction or sentence without analysis for prejudice or harmless error.

In light of the importance of counsel’s assistance in properly framing the issues and presenting those issues to the court, as well as developing any factual support and being knowledgeable about the requirement of a written motion and the elements considered by a trial court on a motion to withdraw a guilty plea, we agree with these state and federal courts. Thus, we hold that Tigue was deprived of counsel at a critical stage of the proceeding when counsel either refused or failed to file a motion to withdraw Tigue’s guilty plea.

We find that the filing of a motion to withdraw a guilty plea is a critical stage of the proceeding, and it is well-established that the “absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice or harmless error.”

Contributed by Steven Buck

Lexington Herald Leader - Reform Urgent to Protect Innocent

Miscarriage of Justice

We hope that by the time you read this, Kerry R. Porter will be a free man, after serving 14 years in prison for a murder he did not commit.

....

Porter's story is the nightmare of a society that values liberty and justice. There are steps lawmakers and courts must take to avert more such nightmares.

The editorial explains reforms needed to eyewitness identification, eligibility for DNA testing, disclosure of new evidence and compensation to those wrongfully convicted.  Kerry Porter is represented by the DPA's Kentucky Innocence Project.

Read more at complete editorial

 

Kentucky Adapts Reclaiming Futures Model for Status Offenders

The Kentucky Reclaiming Futures framework identifies the critical stages of implementing a successful plan for youth who have been or are at risk of being charged with a status offense. The framework consists of six stages that direct how the juvenile justice system, other youth serving agencies and organizations, and the community can work together to reduce the secure detention of youth charged with status offenses and work toward positive outcomes for these youth and their families.

Download Reclaiming Futures in Kentucky: Applying a proven framework for an effective community and judicial response to status offenses and other complex needs of youth in rural and urban settings. 

Reclaiming Future Blog post on this issue  - Kentucky Adapts Reclaiming Futures Model for Status Offenders