KY COA Dec 7 - Brooks- 4th Amendment

Commonwealth v. Brooks, 2011-CA-002075

Police obtained consent, in writing, to search a home.  Several people were in the home and secured at the time.  Police found a purse in the basement.  They searched the purse and found drugs.  The trial court suppressed the evidence.  The Kentucky Court of Appeals upheld the suppression.  They stated that the third party consent to search the home did not extend to the purse found in the basement and there was no exception to the warrant requirement in this situation.

Contributed by John Landon

Bill would expand prisoners' rights to DNA testing - Cincinnati.com

Former federal marshal wants to afford convicts tools to prove innocence

A conservative Northern Kentucky lawmaker has thrown his support behind legislation previously championed by liberals that would allow a Cincinnati man to proceed with DNA testing on evidence he claims will exonerate him of a 1987 rape and killing in Newport.

“If DNA testing is good enough to send you to prison it should be good enough to get you out of prison,” State Sen. John Schickel, R-Union, said while speaking at a criminal law reform symposium held last month at Northern Kentucky University.

“One of the basic tenants of American jurisprudence is that it is better to have a guilty man go free than an innocent man go to prison.”

On Friday, Schickel pre-filed legislation that would afford DNA testing to inmates like 60-year-old William Virgil, who is serving a 70-year sentence in LaGrange for the killing of VA Medical Center nurse Retha Welch. DNA testing was not available at the time of the crime.

complete article

New Vera Resource - Analysis of Prosecutorial Decision Making

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The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making

In the U.S. justice system, prosecuting attorneys have broad latitude in the decision making that influences criminal case outcomes. They play their pivotal role with little oversight from the public, the press, or members of the judiciary. While researchers have explored the correlation of specific factors to case outcomes, there has been scant examination of the processes prosecutors use to reach their decisions or what contextual factors influence their decision making, such as prosecutors’ characteristics, organizational constraints, and social context (relationships among participants in the courtroom workgroup, for example). Furthermore, there has been little research examining the influence of prosecutors’ conceptions of justice and fairness.

With support from the National Institute of Justice, the Vera Institute of Justice undertook research to better understand how prosecutors make decisions throughout the processing of a case. Vera’s study, conducted by Senior Research Associate Bruce Frederick and Don Stemen, assistant professor in the Department of Criminal Justice and Criminology at Loyola University Chicago, sought to go beyond previous studies of prosecutorial decision making and conduct a study that would yield a more nuanced, comprehensive understanding of the process.

The resulting multimedia resource, titled The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making, is now available online. It includes a technical report, a summary report, and four podcasts featuring scholars and practitioners in the justice system discussing the study’s ramifications for understanding how prosecutorial practice affects justice outcomes.

Read the reports and watch the podcasts 

Kentucky Public Advocacy Commission Resolution in Recognition of Daniel T. Goyette

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Recognition of Daniel T. Goyette’s 30 years of defender leadership and 37 years of defender service

 

WHEREAS, pursuant to KRS Chapter 31, the Public Advocacy Commission is the governing body for the Department of Public Advocacy, the statewide public defender program for the Commonwealth;

WHEREAS, Daniel T. Goyette is a 1971 graduate of Marquette University with a double major in English and Philosophy, and the Loyola University Rome, Italy Center of Liberal Arts, and a 1974 graduate of the  University of Oklahoma College of Law and a 1985 graduate of Leadership Louisville and a 1994 Bingham Fellow; 

WHEREAS, Daniel T. Goyette has been married to his wife, Kathy Popham, for 40 years and has four daughters, Caroline, Katie, Meg, and Ryan, and a grandson, Max;

WHEREAS, Daniel T. Goyette joined the Louisville-Jefferson County Public Defender Office on October 15, 1974 and quickly became the chief trial attorney;

WHEREAS, Daniel T. Goyette served as Deputy Chief Public Defender for the Louisville-Jefferson County Public Defender Office from 1977 - 1982;

WHEREAS, Daniel T. Goyette has served as Executive Director of the Louisville-Jefferson County Public Defender Office since August 1982;

WHEREAS, Daniel T. Goyette has served in many professional organizations dedicated to the advancement and study of law especially the advancement of the right to counsel for the indigent accused. These include being a member of the Kentucky, Louisville, and American Bar Associations. He served as the Louisville Bar Association President in 1988, and the President of the Louisville Bar Foundation in 1991.  Mr. Goyette is a longtime member of the National Association of Criminal Defense Lawyers and is a Charter Board Member and past (2008-2010) President of the Kentucky Association of Criminal Defense Lawyers and Past-President of the Kentucky Academy of Justice, a member of the National Legal Aid and Defender Association, a Charter Member of the American Council of Chief Defenders, and Co-Chair of the American Council of Chief Defenders National Caseloads Standards Task Force. He served as member of the Kentucky Criminal Justice Council, the Kentucky Bar Association Ethics Committee from 1986-2009, as Chair of the Louisville Bar Association Committee on Professional Responsibility, and as a member of the American Bar Association Standing Committee on Ethics and Professional Responsibility from 1989 – 1992, a member of the  American Bar Association House of Delegates 1990-1996 and 2006-2012, he was a member of the Kentucky Bar Association, House of Delegates 1982-1986 and 1989-1993 and Chair of the Kentucky Bar Association Criminal Law Section 1983-1985, 1987-1988, 1990-1991, 1994-1995. Since 2011 he has been a member of the American Bar Association Standing Committee on Legal Aid and Indigent Defendants. Since 1979, he has been an adjunct faculty member at the Brandeis School of Law at the University of Louisville. He is a charter member of the Louis D. Brandeis American Inn of Court and Chair of its Membership Committee and chaired Citizens for Better Judges and the Center for Educational Leadership;

WHEREAS, Daniel T. Goyette’s lifetime of dedicated work and achievement, his high standards, professionalism and excellence have earned him prestigious recognitions including the Department of Public Advocacy’s 1994 Gideon Award for “his extraordinary commitment to equal justice and his courage in advancing the right to counsel for the poor in Kentucky,” and in 1997 the American Bar Association’s prestigious Dorsey Award, the 2003 Hall of Fame William H. Sheppard – Excellence in Community Leadership Award, the Kentucky Association of Criminal Defense Lawyers’ 2009 Special Recognition Award, the Kentucky Bar Association’s 2003 Justice Thomas B. Spain Award  for outstanding service in continuing legal education, and the Brandeis School of Law at the University of Louisville  Dean’s Service Award in 2003. He received the Department of Public Advocacy’s 2004 Lincoln Leadership Award. In 2007, Mr. Goyette was the recipient of the Kentucky Bar Association’s Outstanding Lawyer Award. That same year, in its inaugural rating of Kentucky lawyers, Mr. Goyette was recognized by SuperLawyers in the category of criminal defense, and he has been featured in the Top Lawyers edition of Louisville Magazine and other publications. He was the recipient of the 2010 National Coalition to Abolish the Death Penalty’s Outstanding Legal Service Award;  

WHEREAS, Daniel T. Goyette has lectured on a variety of legal issues and topics both locally and nationally and his knowledge and wisdom in the field of law, especially indigent defense, has been sought by fellow attorneys, students, and scholars across the Commonwealth and nation for decades;  

WHEREAS, Daniel T. Goyette has been co-counsel on four (4) cases before the Supreme Court of the United States: Watkins v. Sowders, 449 U.S. 341 (1981), Crane v. Kentucky, 476 U.S. 683 (1986), Stanford v. Kentucky, 492 U.S. 361 (1989), and the landmark case of Batson v. Kentucky, 476 U.S. 79 (1986);

WHEREAS, Daniel T. Goyette’s passionate work for public defender clients has spanned nearly four decades;

WHEREAS, Daniel T. Goyette is in his 38th year of service to the Commonwealth as a lawyer, his 37th year of service to the Commonwealth as a public defender, and his 30^th year of service as Executive Director of the Louisville-Jefferson County Public Defender Corporation; and

WHEREAS, Daniel T. Goyette has systematically provided the guiding hand of counsel to hundreds of thousands of clients in Jefferson County with paramount pride, relentless passion and dogged perseverance.

THEREFORE, NOW BE IT RESOLVED

That the Kentucky Public Advocacy Commission on behalf of defender staff and clients in the Commonwealth recognizes, congratulates and honors Daniel T. Goyette for his dedicated defender leadership for 30 years and commends Daniel T. Goyette for a lifetime of service and achievement in the practice of indigent defense law and leadership.

 

This 14^th day of September 2012,

 

Jerry C. Cox

Chair, Public Advocacy Commission

 

pdf of resolution

 

KY COA Nov 30 - Andrews - HB 463 and Probation

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Andrews v. Commonwealth, 2011-CA-001360, Not to be published, -

The trial court revoked Andrews probation when it found a single positive drug test made him a significant risk to the community and that he could not be managed within the community.  After Andrews failed the drug test, he checked himself into a treatment center and was doing well.  The trial court revoked Andrews probation.

The Court of Appeals reversed, finding that HB 463 has a particular emphasis on using treatment to rehabilitate offenders and decrease overall costs, and that a failure to comply with a condition of probation is no longer sufficient to automatically justify revocation of probation. 

The Commonwealth must now prove by a preponderance of the evidence that the probationer poses a significant threat to prior victims or the community and cannot be managed in the community. Here, Andrews was doing well on probation (except for single drug test failure) and doing well in a community-based treatment program. The Court also took issue with the trial judge’s consideration of Andrew’s initial denial of his need for treatment: “Andrews should not be barred from accessing treatment now simply because he previously denied he had a substance abuse problem or needed treatment.  If we were to allow revocation of probation under these circumstances, it would negate the entire statutory change to the probation revocation process and the purposes underlying House Bill 463.”

Contributed by Shannon Smith

December 2012 Advocate - Proposed Revisions to Kentucky Juvenile Code

is now available here. 

Oregon Supreme Court Establishes New Procedures to Determine the Admissibility of Eyewitness Identification Evidence- Innocence Blog

In State of Oregon v. Samuel Adam Lawson, the Oregon Supreme Court established new procedures to determine the admissibility of eyewitness identification evidence today. The case revised previous reliability tests and will now require that courts review eyewitness testimony in a manner consistent with the vast research in the area of eyewitness identification and memory. The court’s ruling reflected many of the legal arguments set forth by the Innocence Network in its friend-of-the-court brief.
 
Lawson, who will now receive a new trial, was convicted of murder based largely on an eyewitness’ account from the victim’s wife two years after the incident. The identification was aided by the lead investigator in the case who showed her a picture of Lawson and then escorted her to a pre-trial hearing so she could get a second look.
 
The Oregon Court of Appeals found Hilde’s identification to be valid based on a 33-year-old case, State v. Classen. However, the Supreme Court unanimously disagreed in an 80-page opinion by Justice Paul J. De Muniz citing serious concerns regarding the reliability of the identification. The Oregonian reports:

"In light of current scientific knowledge regarding the effects of suggestion and confirming feedback," De Muniz concludes that questions about the reliability of the ID evidence admitted at trial are impossible to ignore and remands the case to trial court for a new trial.

 

…
Among Classen's many problems, De Muniz notes, is that the law's "burden-of-proof structure improperly requires defendants who have filed pretrial motions to exclude eyewitness identification evidence to first establish than an identification procedure was suggestive, even though the state -- as the administrator of that procedure -- controls the bulk of the evidence in that regard."

The ruling comes soon after a similar landmark decision from New Jersey’s Supreme Court required major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries. The Oregon decision goes further than the New Jersey court in protecting against wrongful convictions based on misidentification in several important respects.  The new Oregon test shifts the burden to the state to establish that the evidence is admissible. If the state satisfies its initial burden, the court charges that judges may still need to impose remedies, including suppressing the evidence in some circumstances, to prevent injustice if the defendant establishes that he or she would be unfairly prejudiced by the evidence.   
 
Read the full article.
 
Read the full opinion.

KY SC Sept 20 - Sluss- Jury issues and Facebook.

Ross Brandon Sluss v. Commonwealth, 2011-SC-000318-MR, ___ S.W.3d ___ (Ky. 2012)

Opinion by Justice Noble.  To be published. 

Jury issues and Facebook.

Sluss was convicted of murder, first degree assault, DUI, and tampering with physical evidence.  The case received much publicity in Martin County and was discussed often on Facebook and Topix.   After trial, Sluss discovered two of the jurors may have been Facebook friends with the victim’s mother.  “As a general rule, anything which is good cause for challenge for disqualification of a prosepective juror is deemed good cause for a new trial if not known or discoverable to the defendant or his counsel before the verdict and they were misled by a false answer on voir dire.”  The Supreme Court remanded the case for the trial court to determine if the two jurors were facebook friends with the victim’s mother and the extent and nature of the jurors’ relationship with her if they were.

Contributed by Brandon Jewell  

Kentucky Supreme Court considering Miranda warning for students- Louisville Courier Journal

The Kentucky Supreme Court is considering a case from Nelson County that could require school officials to give the Miranda warning — you have the right to remain silent and anything you say can and will be used against you — when questioning a student with a school resource officer present.

Principals frequently work in concert with such officers — there are 254 sworn police working in Kentucky schools, according to the Kentucky Center for School Safety, and up to 60 percent of schools nationwide have one on campus.

Miranda warnings are required when a subject is in custody — when a suspect thinks he’s not free to leave — and at issue is whether a student grilled in the principal’s inherently fits that description.

Opponents of requiring the warnings in school say administrators have more important things to do.

more....

KY SC Sept 20 - Morseman - Restitution

Commonwealth v. Shawn Morseman, 2011-SC-000167, ___ S.W.3d ___ (Ky. 2012).

Opinion by Justice Scott.  To be published. 

Restitution.

Morseman was indicted on second degree arson by complicity and fraudulent insurance acts by complicity over #300.  He pled guilty to fraudulent insurance acts by complicity over $300.  He was ordered to pay restitution, $48,598.02, as part of the plea agreement.  The Supreme Court analyzed whether the trial court abused its discretion when, as part of a plea agreement, it ordered Morseman to reimburse Amica for insurance proceeds distributed for property damage, alternative housing, and living expenses, which were damages not incurred as a result of the fraudulent insurance acts- the only crime for which he pled guilty.  By statute, KRS 533.030(3), 532.350(1)(1), 304.47-020(2)(d), Morseman would not be required to pay restitution because the loses were due to the fire and he did not pled guilty to arson.  However, the Supreme Court upheld the order of restitution as part of the plea agreement. 

Contributed by Brandon Jewell

Harlan Public Defender Office Opens

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 The Department of Public Advocacy has realigned the Bell County Public Defender Office headed by Linda West that had covered Bell and Harlan Counties into a Bell Office and a Harlan Office which opened its doors on July 23, 2012.

   The new Harlan Public Defender Office is located at: 120 Professional Lane, 2d Floor, Harlan, KY 40831, 606-573-2501. The Harlan County public defender employees are: attorneys Daniel Schulman and Laura Karem, investigator Jessica Gibson and administrative specialist Traci Bowman. “We are glad to be closer to our clients and the leaders in the Harlan criminal justice system. We are trying to represent our clients the way we’d want to be represented, professionally, vigorously and focused on fair outcomes,” Daniel Schulman said. DPA Regional Manager Roger Gibbs of London, KY, identified the importance of this office to Harlan, “The new office in Harlan is an example of the commitment of DPA to be a part of the communities it serves.  A local office will mean better fulfillment of the Sixth Amendment Right to Counsel.  I am proud that Daniel, Laura, Jessica, and Traci are breathing life everyday into the fundamental promise of justice for all.”

Today at the official opening ceremony Harlan County Judge Executive Joe Grieshop welcomed establishment of the local office, “This office in Harlan will allow our citizens represented by public defenders to have better access to their lawyers because the office is located in our county. It also helps our criminal justice system, judges, prosecutors, pretrial release officers, law enforcement and jailers, to work more efficiently with defenders located here as opposed to Pineville. Our criminal justice system can only function well if it has the confidence of the people. That takes an efficient system that insures timely, fair and reliable results. Having public defenders located in Harlan helps our community better achieve that assurance.”

Jerry Cox of Rockcastle County, Chair of the Public Advocacy Commission, the statewide public defender governing board, said it is important to have an office in Harlan because “we know that the empirical evidence demonstrates that having counsel at the initial appearance before a judge improves the likely outcome for a criminal defendant.  A defendant with a lawyer at first appearance:

 

•  Is 2 ½ times more likely to be released on recognizance 
• Is 4 ½ times more likely to have the amount of bail significantly reduced
• Serves less time in jail (median reduction from 9 days jailed to 2, saving county jail resources while preserving the clients' liberty interests)
• More likely feels that he is treated fairly by the system.”

 

“The right to counsel is not an academic matter,” Middlesboro’s Mike Bowling, a member of, the Public Advocacy Commission and former Chair of the House Judiciary Committee, said. “It makes a difference to have a lawyer. Counsel is the gateway through which the other individual liberties are made real. Just as a judge,

prosecutor, police officer, legislator, doctor, or teacher makes a difference, a defense lawyer makes a difference in the achievement of just outcomes arrived at through a fair process. Public defenders in Harlan are making a difference for people.”

Public Advocate Ed Monahan said that “Public defense provides public value. Public defenders who are criminal defense experts, who have manageable workloads, and who have professional independence ensure that the rights guaranteed by our Constitutions are protected and ensure that no one’s liberty is taken unless and until they are proven guilty.  Public defenders lower costly incarceration rates for counties and states by

• being present at first appearances and advocating for pretrial release for those presumed innocent;
• advocating for reduced sentences based on the facts of the case;
• developing alternative sentencing options that avoid incarceration and provide individually based treatment and reduce recidivism;
• Assisting clients upon sentencing   with reentry needs including employment, housing;
• Preventing expensive wrongful convictions.”

During the office ceremony, Public Advocate Ed Monahan presented a plaque to local attorney and long-time public defender Bob Thomas who recently retired. It honored his 19 years of service to thousands of clients. It reads:

 

Robert A. Thomas

In recognition of his

public defender service to his clients and to the Commonwealth of Kentucky

1993 – 2012

 

 

KY SC Sept 20 - RCr 11.42: Time for post conviction counsel to file supplement to defendant’s pro se pleading.

Terry W. Roach v. Commonwealth, 2011-SC-000141-DG, ___ S.W.3d ___ (Ky. 2012)

Opinion by Justice Abramson.  To be published. 

RCr 11.42: Time for post conviction counsel to file supplement to defendant’s pro se pleading. 

Roach pled guilty in June 2002.  Supreme Court opinion affirming the conviction became final in January 2004.  In March 2004, Roach filed a pro se RCr 11.42 motion.  DPA was appointed in March.  The Case was dormant until September 2008 when appointed counsel filed an amendment to Roach’s motion.  The Supreme Court found the pro se pleading was timely but counsel amendments were outside the three year statute of limitations because they were not claims that arose from the same “conduct, transaction, or occurrence” that was set forth in the original pleading per CR 15.01.  That is, a new ground for relief supported by facts different from than those in the original pleading cannot be asserted after the statute of limitations expires.

Contributed by Brandon Jewell

KY SC Sept 20 - Probationer’s testimony at revocation hearings related to new charges.

Gerald Barker v. Commonwealth, 2010-SC-000116-DG, ___ S.W.3d ___ (Ky. 2012)

And

Commonwealth v. Ryan Jones, 2010-SC-000123-DG,  ___ S.W.3d ___ (Ky. 2012)

Opinion by Chief Justice Minton.  To be published.

Probationer’s testimony at revocation hearings related to new charges.

Court considered whether a trial court may proceed to hold evidentiary hearings to revoke or modify probation when the grounds for revocation or modification are new, unresolved criminal charges against the probationer.  The Court held: 1) The trial court is not required to delay probation revocation or modification hearings awaiting resolution of the criminal charges that arise during the probationary period, 2)  when the probationer is faced with probation revocation or modification and a criminal trial based upon the same conduct that forms the basis of new criminal charges, the probationer’s testimony at the probation revocation hearing is protected from use at any later criminal trial in Kentucky, 3) the trial court must advise the probationer that any testimony the probationer gives in probation revocation hearings that relates to the facts underlying the new charges cannot be used as substantive evidence in the trial of the new charges, and 4)  the probationer’s testimony at the revocation hearing can be used for impeachment purposes or rebuttal evidence in the trial of the new charges, and the trial court shall so advise the probationer before the probationer testifies at the revocation hearings.  These rules are designed to protect probationers’ due process rights at revocation hearings and their rights against self-incrimination in future criminal proceedings.

Contributed by Brandon Jewell

KY SC Sept 20 - Wilson - Ex parte communications.

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Commonwealth v. Michael L. Wilson, 2011-SC-000157-CL, ___ S.W.3d ___ (Ky. 2012).

Opinion CERTIFYING THE LAW by Justice Cunningham.  To be Published.

Ex parte communications.

Question presented was: Does Kentucky law authorize an ex parte motion by a criminal defendant to vacate or set aside a warrant for his or her arrest with no notice or opportunity for the Commonwealth to be heard?  The answer is no. 

A warrant was issued for Wilson on charges of assault.  Wilson’s attorney made an ex parte request to a judge to set the warrant aside and issue a summons instead because the victim recanted.  The request was granted.  Eventually Wilson pled guilty.  Because such ex parte communication by defense attorneys with judges is common practice in district court, the Supreme Court accepted the request for certification of the law.  The Court stated that Rule 4.300, Canon 3B(7) prohibits ex parte contact in these circumstances:  “[w]ith regard to a pending or impending proceeding, a judge shall not initiate, permit, or consider ex parte communications with attorneys and shall not initiate, encourage or consider ex parte communications with parties…”

Contributed by Brandon Jewell

 

NACDL Launches Publicly Available Restoration of Rights Database

The National Association of Criminal Defense Lawyers, as a resource for its members and as a service to the public, a collection of individual downloadable documents that profile the law and practice in each U.S. jurisdiction relating to relief from the collateral consequences of conviction.  The 54 jurisdictional profiles include provisions on loss and restoration of civil rights and firearms privileges, legal mechanisms for overcoming or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. In addition to the full profiles, there is a set of charts covering all 50 states (plus territories and the federal system) that provide a side-by-side comparison and make it possible to see national patterns in restoration laws and policies. The information covered by the charts is summarized on the page for each jurisdiction.
Nation-Wide Database
Kentucky's Listing
See the comparison charts

Using Adolescent Brain Research to Inform Policy: A Guide for Juvenile Justice Advocates - National Juvenile Justice Network

Research has revealed profound differences in the way that adolescents and adults use their brains. Much has been made of this research in policy arenas on behalf of youth in the justice system; however, its use raises questions about respect for our youth allies and implications for alternate policy agendas. This paper, recently updated, explores the key issues and makes recommendations.

 Download the policy paper, "Using Adolescent Brain Research to Inform Policy: a Guide for Juvenile Justice Advocates."

JPI Reports on Bail

The Justice Policy Institute published three reports on the U.S. bail system in an effort to raise public awareness on an issue that is not often highlighted -- and one that most people do not fully understand. The intricacies of the U.S. bail system are complex from the point of arrest to the insurance agencies that oversee bail bond companies.

During the month of September 2012, JPI published Bail Fail, For Better or for Profit and Bailing on Baltimore, three reports that analyzed the current system of bail and its impacts on the community at large.

Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail

Click here for Bail Fail fact sheet

 

 

To download the High Price of Bail infographic, click here.

On Nova - Forensics on Trial

Airing October 17 - Check your local listings

Program Description

There is a startling gap between the glamorous television world of “CSI” and the gritty reality of the forensic crime lab. With few established scientific standards, no central oversight, and poor regulation of examiners, forensics in the U.S. is in a state of crisis. In "Forensics on Trial", NOVA investigates how modern forensics, including the analysis of fingerprints, bite marks, ballistics, hair, and tool marks, can send innocent men and women to prison—and sometimes even to death row. Shockingly, of more than 250 inmates exonerated by DNA testing over the last decade, more than 50 percent of the wrongful convictions stemmed from invalid or improperly handled forensic science. With the help of vivid recreations of actual trials and cases, NOVA will investigate today’s shaky state of crime science as well as cutting-edge solutions that could help investigators put the real criminals behind bars.

NOVA page on the show

October 2012 Advocate now available - DPA Legislative Proposals for 2013

DPA October 2012 Advocate

 

Victimization and Trauma Experienced by Children and Youth: Implications for Legal Advocates.

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The Safe Start Center, ABA Center on Children and the Law, and the Child and Family Policy Associates recently released a new resource, Victimization and Trauma Experienced by Children and Youth: Implications for Legal Advocates.  In this resource, you’ll find:

·         Information about the prevalence and impact of victimization and exposure to violence

·         Practice tips for juvenile defenders, children’s attorneys and GALs, judges, and CASAs

·         Explanations of traumatic stress symptoms and trauma-related assessments and treatments

·         Descriptions of promising local and state initiatives to address trauma

·         Guidance on policy reforms and other considerations for trauma-informed advocacy

KY COA July 27 - Douglas - KASPER records

Veronica Douglas v. Com., 2011-CA-000066-MR, 2012 WL 3054118 (Ky. App. July 27, 2012) (to be published)-

The Court of Appeals reversed Ms. Douglas’ second degree manslaughter conviction after a doctor called by the prosecutor as an expert was improperly allowed to testify to prejudicial information from KASPER records about multiple prescriptions Douglas had for painkillers when those drugs were not found in her system at the time of the accident.

Douglas questioned on appeal that KRS 218A.202 was violated by the disclosure of Douglas’ KASPER records to not only the prosecutor’s expert witness but also to the prosecutor himself without a court order. The Court of Appeals held that indeed the prosecutor and the doctor hired by the Commonwealth should not have been given Douglas’ KASPER report. The Court noted that this constituted a felony under KRS 218A.202 (12) by the persons transmitting the report to those people. (This statute has since been amended to make the first offense a Class B misdemeanor and each subsequent offense a Class A misdemeanor.)

The Court held:

In the present case, neither the prosecutor nor Dr. Davis qualified under KRS 218A.202 as a person authorized to receive the KASPER report. We pause to note that this is disconcerting because this appears to be a recurring problem in the Commonwealth, i.e., that prosecutors and other unauthorized people are being provided copies of KASPER reports without court orders directing those people to be given such reports, see Bartlett, 311 S.W.3d at 228 n. 2, without fear of prosecution.

Id. at 9.

Defense attorneys should be familiar with the provisions of KRS 218A. 202 and the cases interpreting KASPER and object if it appears that the prosecutor, police or any other persons have been illegally supplied with a KASPER record for their client

Contributed by Kathleen Schmidt

ABA Journal - Race Matters in Sentencing, Study Suggests

Researchers say they their new study suggests a reason why African Americans are overrepresented in prison. Black defendants are more likely to be sentenced to prison than whites, on average, but the racial gap is even more pronounced among some judges, suggesting that race is influencing the decision, the study found.

The researchers studied judicial variations in sentencing in felony cases from Cook County, Ill., which includes Chicago. “Race matters in the courtroom,” says the study posted as SSRN. Differences in sentencing by race across judges “suggests that courtroom outcomes may not be race blind. This may be one source of the substantial overrepresentation of African-Americans in the prison population.”

Complete article about study

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KY COA July 20 - Southwood - Probation Revocation

Southwood v. Commonwealth, 2011-CA-001277-MR (Decided July 20, 2012; To be published)

The Court of Appeals found that there was no abuse of discretion where the trial court did not make a specific finding of fact that the defendant could not be appropriately managed in the community.

Leslie Southwood pled guilty to arson in the second degree.  About a month later he was sentenced to twenty years probated for five years. A condition was imposed that Southwood’s probation included that he remain in the area of supervision within Breathitt County and that he would commit no new offense while on probation.  Southwood was later arrested in Perry County and charged with possession of a controlled substance in the first degree, carrying a concealed deadly weapon, and operating a motor vehicle under the influence.

At the probation revocation hearing, the only witnessed called was the probation officer. The probation officer testified that Southwood was not supposed to leave the county except for emergency medical treatment. The court was also made aware of a pending assault charge against Southwood  in Breathitt District Court for allegedly assaulting his mother.  It was further suggested that he may have been involved in a shooting incident involving his brother.  The trial court revoked Southwood’s probation.

Southwood filed a motion to alter, amend or vacate the order pursuant to KRS. 439.3106, pursuant to a statute that had been enacted on June 8, 2011, two days prior to his revocation hearing.  Southwood argued that the statute required the court to make a finding that he could not “be appropriately managed in the community.” The trial court found that they very nature of the pending charges in Perry County were sufficient to revoke his probation and deny the motion.

The Court of Appeals Affirmed, citing KRS 439.3106(2) discussing severity of the violation behavior and risk of future criminal behavior. The Court further noted that Commonwealth v. Alleman, 306 S.W.3d 484, 488 (Ky. 2010) was applicable to the instant case, where the sole testimony introduced was that the defendant absconded.

Contributed by Jason Apollo Hart

New Model Instructions to Jurors on Social Media Use

The Judicial Conference Committee for the federal courts has recently updated its instructions regarding jurors and social media.  These new instructions are available here. 

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, the Conference Committee on Court Administration and Case Management (CACM) chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."

Another resource is GOOGLE, GADGETS, AND GUILT: JUROR MISCONDUCT IN THE DIGITAL AGE by Thaddeus Hoffmeister

[T]he Article explores possible steps to limit the negative impact of the Digital Age on juror research and communications. While no single solution or panacea exists for these problems, this Article focuses on several reform measures that could address and possibly reduce the detri-mental effects of the Digital Age on jurors. The four remedies discussed in this Article are (1) pe-nalizing jurors, (2) investigating jurors, (3) allowing jurors to ask questions, and (4) improving juror instructions. During the discussion on jury instructions, this Article analyzes two sets of jury instructions to see how well they adhere to the suggested changes proposed by this Article. This is followed by a draft model jury instruction.

KY COA July 20 - Southwood - Probation Revocation

Southwood v. Commonwealth, 2011-CA-001277-MR (Decided July 20, 2012; To be published)

The Court of Appeals found that there was no abuse of discretion where the trial court did not make a specific finding of fact that the defendant could not be appropriately managed in the community.

Leslie Southwood pled guilty to arson in the second degree.  About a month later he was sentenced to twenty years probated for five years. A condition was imposed that Southwood’s probation included that he remain in the area of supervision within Breathitt County and that he would commit no new offense while on probation.  Southwood was later arrested in Perry County and charged with possession of a controlled substance in the first degree, carrying a concealed deadly weapon, and operating a motor vehicle under the influence.

At the probation revocation hearing, the only witnessed called was the probation officer. The probation officer testified that Southwood was not supposed to leave the county except for emergency medical treatment. The court was also made aware of a pending assault charge against Southwood  in Breathitt District Court for allegedly assaulting his mother.  It was further suggested that he may have been involved in a shooting incident involving his brother.  The trial court revoked Southwood’s probation.

Southwood filed a motion to alter, amend or vacate the order pursuant to KRS. 439.3106, pursuant to a statute that had been enacted on June 8, 2011, two days prior to his revocation hearing.  Southwood argued that the statute required the court to make a finding that he could not “be appropriately managed in the community.” The trial court found that they very nature of the pending charges in Perry County were sufficient to revoke his probation and deny the motion.

The Court of Appeals Affirmed, citing KRS 439.3106(2) discussing severity of the violation behavior and risk of future criminal behavior. The Court further noted that Commonwealth v. Alleman, 306 S.W.3d 484, 488 (Ky. 2010) was applicable to the instant case, where the sole testimony introduced was that the defendant absconded.

Contributed by Jason Apollo Hart

Kentucky Pretrial Services Legislative Impact Report

Kentucky Pretrial Services recently published, Report on Impact of House Bill 463: Outcomes, Challenges and Recommendations. The purpose of the report is to measure the impact of HB 463, which implemented sweeping changes to many aspects of the criminal justice system in Kentucky. The report examined data a year prior and a year after implementation and found that as the number of monitored conditional releases went up, pretrial failures decreased. 

Justice Department to review forensic evidence used in thousands of cases - Washington Post

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.

The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled.

Read the complete story

KY COA July 6 - Denny - IAC of PC Counsel

Denny v. Commonwealth, 2011-CA-1232 (Decided July 6, 2012; unpublished)

             Brad Denny pled guilty to murder and was sentenced to LIFE in prison.  He filed a pro se RCr 11.42 motion which the circuit court denied without holding an evidentiary hearing.  His case was reversed by the Court of Appeals and remanded for a hearing.  The circuit court held a hearing and again denied his RCr 11.42 motion. 

In the instant action, Denny claimed in a CR 60.02 motion that he received ineffective assistance of post-conviction counsel due to failure to raise substantial issues in the RCr 11.42 motion.  The Court of Appeals denied the claim, stating that he should have raised the claims in his RCr 11.42 action.  While the Court did give lip service to the United States Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), it ultimately refused his claim based on the holding of the Kentucky Supreme Court in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010) that Kentucky has held that there cannot be a valid claim for ineffective assistance of post-conviction counsel because by Kentucky law, he has no right to the assistance of post-conviction counsel.

In essence, as the Court of Appeals stated, “Because Denny’s ineffective assistance of trial counsel claims could have been asserted in his RCr 11.42 motion, the law in Kentucky states that his CR 60.02 motion fails.”

In a dissent, Justice Stumbo stated, “I would reverse and remand for appointment of counsel so that the trial court can determine whether Appellant can demonstrate ‘that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.’”  Martinez, 132 S.Ct. at 1318.

 Contributed by Karen Maurer

Practice Advisory for Criminal Defense Attorneys: Certain Criminal Offenses May Bar Persons from Applying for the New Deferred Action Status Program Announced by President Obama

From: Immigrant Legal Resource Center – San Francisco, California

On June 15, 2012, the Obama Administration announced that it would not deport certain undocumented persons who entered the U.S. as children.

The Department of Homeland Security (DHS) has offered some initial guidance on the type of criminal offenses that will make a person ineligible to be granted deferred action.

Deferred action means that, even though the individual is undocumented and subject to deportation, the government agrees to defer any actions to remove them.

So, in essence, even though deferred action does not provide a pathway to getting lawful permanent resident status (a greencard) or citizenship, it will allow young people to remain in the U.S. and apply for a work authorization document from the government that entitles them to legally work in the U.S.

This advisory for criminal defense counsel outlines defense strategies to preserve a client’s possible eligibility for deferred action.

Download here

KY COA June 22 - Cozzolino - Directed Verdict in DUI case

THOMAS GEORGE COZZOLINO V. COMMONWEALTH, 2011-CA-000656-DG,

To-be-published, June 22, 2012,

Vacating the Jefferson Circuit Court’s reversal of a directed verdict granted by the Jefferson District Court. 

            Cozzolino was tried for the offense of DUI in the Jefferson District Court.  He made a mid-trial objection to evidence obtained by police following a Miranda violation.  The District Court held a suppression hearing, and suppressed much of the prosecution’s evidence.  The prosecution continued with its case-in-chief, after which, the District Court granted a directed verdict of acquittal for Cozzolino.  The Commonwealth appealed the acquittal to the Jefferson Circuit Court, which reversed the District Court’s judgment that the remaining evidence presented by the prosecutor at trial was insufficient to meet the standard for a directed verdict.  The Circuit Court remanded the case to the District Court for another trial, reasoning that double jeopardy did not apply because the first trial had been prematurely concluded as a result of the defendant’s own motion.

            The Court of Appeals vacated the Circuit Court’s decision.  Quoting from Derry v. Commonwealth, 274 S.W.3d 439, 444 (Ky. 2008), and United States v. Scott, 437 U.S. 82, 91 (1978), the Court held the granting of a directed verdict motion in favor of a defendant in a criminal case terminates the prosecution, and a second trial following an appeal by the Commonwealth would violated the Double Jeopardy Clause.  “The district court weighed the evidence presented by the Commonwealth and found it insufficient to convict.  The dismissal was not based on a mistrial; it was related to Cozzolino’s factual guilt or innocence.  …  [W]e find that Double Jeopardy prevents Cozzolino from being tried again for DUI.”

Contributed by Tom Ransdell

KY COA June 22 - Lemons - Applicaton of KRS 503.085 Self Defense Dismissal

BRIAN J. LEMONS V. COMMONWEALTH, 2010-CA-001942-MR, 2012 WL 2360131,

To-be-published, June 22, 2012,

Reversing with directions to dismiss the indictment. 

Reviewing the witness statements and police reports underlying Lemons’ KRS 503.085 claim of immunity from prosecution because he acted in self-defense, the Court of Appeals found that “the Commonwealth failed to present sufficient evidence to establish probable cause that Lemons’s use of force was unlawful.”  The Court went on to say that “the Commonwealth cannot meet this burden simply by asserting that a jury could reject the defendant's version of the facts. Otherwise, KRS 503.085 would not result in any meaningful change in the law in circumstances where a change was clearly intended.”

Witnesses here disagreed on many things.  But several witnesses corroborated that the so-called victim and his two brothers initiated the violence by knocking out Lemons’ friend (chipping three teeth and causing him to bleed profusely from his mouth), and picking up and throwing Lemons’ girlfriend to the ground.  No one but Lemons saw what happened next, when the so-called victim swiftly pinned Lemons against a car and Lemons defended himself by sticking him in the shoulder and back with his pocketknife.

Lemons pled to manslaughter and accepted a 14-year sentence conditioned on the appeal of his immunity motion.  Had he gone to trial, asserted self-defense, and lost, he could have raised on appeal both the denial of his immunity motion and insufficiency of the Commonwealth’s evidence controverting his claim of self-defense.  But a negative jury verdict on self-defense might have clouded the KRS 503.085 issue and made it harder to win.

TRIAL TIP:  This case is not final and may well be reviewed by the Kentucky Supreme Court.  Meanwhile, even if your case involves complex facts and witnesses who contradict each other, you should be filing pretrial motions under KRS 503.085 to dismiss the indictment when your client has a self-defense/defense of others claim.

Kudos to trial counsel Aaron Currin for raising and preserving this issue. 

Contributed by Tom Randell

DNA for the Defense Bar

by The National Institute of Justice

DNA for the Defense Bar is the newest addition to a series of NIJ guides that aims to improve the use of forensic DNA in the criminal justice system. Designed specifically for criminal defense lawyers, it:

• Offers a primer on the science of DNA, from collection at a crime scene to laboratory analysis and findings.
• Provides general discussions on working with a criminal defense client and preparing a defense, including the testimony of a DNA expert witness and cross-examining prosecution DNA witnesses.
• Offers guidance regarding trial issues (for example, jury selection and opening and closing statements) and includes an in-depth discussion of the statistics with respect to CODIS match probabilities.
• Include a discussion of post-conviction DNA testing.

Full text:

• Adobe Acrobat File

Vera Publishes Review of Research on the Relationship of Race and Ethnicity to Prosecutorial Decision Making

A new publication from the Prosecution and Racial Justice Program (PRJ) of the Vera Institute of Justice surveys the literature on the relationship of race and ethnicity to prosecutorial decision making.

Do Race and Ethnicity Matter in Prosecution?—a review of 34 empirical studies on the relationship of race and ethnicity to prosecutorial decision making published between 1990 and 2011 in peer-reviewed journals—analyzes research that previously has been accessible primarily to scholars. The PRJ review, written for a broad audience, is intended to encourage additional research on this critical subject.

“No other actor in the criminal justice system drives case outcomes as profoundly as the prosecutor,” PRJ director Whitney Tymas writes in her introductory note. “Nevertheless, empirical research analyzing racial impacts of prosecutors’ routine choices on the thousands of defendants and victims with whom they interact daily has been scarce.” 

Among the review’s key findings: 

• Defendants’ and victims’ race appear to affect prosecutorial decisions. Most of the 34 studies reviewed found influences on case outcomes, even when other legal and extra-legal factors are taken into account.
• The effect of race and ethnicity on prosecutorial decision making is inconsistent.
• As compared to whites, it is not always blacks or Latinos and Latinas who receive more punitive treatment.

Read report

New Pew Center Study on Prison Terms

Time Served

The High Cost, Low Return of Longer Prison Terms

PDF Downloads

• Full Report
• State Fact Sheets

Quick Summary

The length of time served in prison has increased markedly over the last two decades, according to a new study by Pew’s Public Safety Performance Project. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

Over the past 40 years, criminal justice policy in the U.S. was shaped by the belief that the best way to protect the public was to put more people in prison. Offenders, the reasoning went, should spend longer and longer time behind bars.

Consequently, offenders have been spending more time in prison. According to a new study by Pew’s Public Safety Performance Project, the length of time served in prison has increased markedly over the last two decades. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

See how longer prison sentences costs states over $10 billion

Those extended prison sentences came at a price: prisoners released from incarceration in 2009 cost states $23,300 per offender--or a total of over $10 billion nationwide. More than half of that amount was for non-violent offenders.

The report, Time Served: The High Cost, Low Return of Longer Prison Terms, also found that time served for drug offenses and violent offenses grew at nearly the same pace from 1990 to 2009. Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent. 

Almost all states increased length of stay over the last two decades, though that varied widely from state to state.  In Florida, for example, where time served rose most rapidly, prison terms grew by 166 percent and cost an extra $1.4 billion in 2009.

A companion analysis Pew conducted in partnership with external researchers found that many non-violent offenders in Florida, Maryland and Michigan could have served significantly shorter prison terms with little or no public safety consequences. 

The report also summarizes recent public opinion polling that shows strong support nationwide for reducing time served for non-violent offenders.

KY COA May 11th - Hamm - Client's inability to pay child support

Hamm v. Commonwealth, ---S.W.3d--- (Ky. App. 2012), rendered May 11, 2012, To be published

Mr. Hamm appealed his pretrial diversion revocation by the Boyd Circuit Court for his continued failure to pay child support. The diversion agreement called for Mr. Hamm to pay current child support and a portion of arrearages on a monthly basis. Three months later, a bench warrant was issued for failure to make payments. At the revocation hearing, Mr. Hamm admitted he had not made his support payments, but cited his inability to pay. He testified that he managed to earn about $40 per week, barely enough for himself, and far short of child support levels. The trial court revoked based solely on the failure to pay.

The Court of Appeals held that the circuit court’s revocation was improper in light of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). Under Marshall, the trial court must consider the two Bearden v. Georgia, 461 U.S. 660 (1983), factors: 1) consider whether the probationer made sufficient bona fide efforts to pay, but has been unable to pay through no fault of his own; and 2) if so, consider whether alternative forms of punishment might serve the interests of punishment and deterrence. Id. at 823-24. The Court of Appeals agreed that Marshall applied and the trial court denied Mr. Hamm his due process rights by summarily revoking diversion based solely on his inability to pay. The trial court abused its discretion in failing to make the Bearden inquiry and appropriate findings of fact pursuant to Marshall.

Trial tip: in these revocation cases for failure to pay support, provide evidence that the client’s inability to pay was not through any fault of his and be prepared to provide alternatives forms of punishment.

Contributed by Brandon Jewell

KY COA May 11th - Thornton - Right to be heard in contempt sentencing

Anthony Thornton v. Commonwealth, ___ S.W.3d ___ (Ky. App. 2012)  To be published.

Thornton was found guilty of direct criminal contempt for his courtroom behavior but delayed sentencing until after his jury trial was over.  After the trial, the court sentenced him to 6 months for contempt without a hearing.  Under Schroering v. Hickman, 229 S.W.3d 591, 594-595, if a court delays imposing a sentence for contempt, the contemnor is entitled to exercise his due process right to be heard at a sentencing hearing.  The judgment was reversed and remanded for a new sentencing hearing. 

Contributed by Brandon Jewell

KY COA May 11th - Grider - Commonwealth shifting theory from indictment to trial and discovery violations

Commonwealth v. Grider, ___ S.W.3d ___ (Ky. App. 2012)  To be published.

The Circuit Court dismissed the indictment against Grinder with prejudice.  This was proper because the Commonwealth shifted its theories of criminal liability at the trail from those listed in the indictment.  The indictment alleged Grinder had billed Medicaid for one drug while dispensing another less expensive drug.  In opening statement, the Commonwealth said the crime was that Grinder violated Medicaid’s administrative regulations requiring pre-authorization to be reimbursed for specific drugs.  Because the jury had already been seated, the trial court could dismiss the indictment under RCr 6.12 because Grinder’s substantial rights were prejudiced; on top of shifting its theory of criminal liability, the Commonwealth had also failed to provide a bill of particulars detailing the circumstances of the crime despite being ordered to multiple times and had failed to disclose exculpatory evidence until a few days before trial which contained too much information to fully analyze in a few days.

Contributed by Brandon Jewell

New National Registry of Exonerations

The Center on Wrongful Convictions and University Michigan Law School tonight launched the National Registry of Exonerations—a comprehensive database containing extensive searchable information on the cases of nearly 900 men and women who have been exonerated in the U.S. since 1989 after being convicted of felonies they did not commit.

exonerationregistry.org 

In addition to the cases in the registry, more than 1,100 defendants have been exonerated following convictions stemming from 13 separate police corruption scandals (such as the drug task force scandal in Tulia, Texas, and the Rampart scandal in Los Angeles). Thus, the total number of defendants exonerated during the 23-year period totals roughly 2,000—an average of about one a week.

Below are the Kentucky cases listed -

Last Name	First Name	State	Convicted	Exonerated	DNA	*	Contributing Factors
Chandler	Edwin	Kentucky	1995	2009			Mistaken Witness ID, False Confession
Gregory	William	Kentucky	1993	2000	Y		Mistaken Witness ID, False or Misleading Forensic Evidence, Official Misconduct
Kiper	Ben	Kentucky	2000	2006			Perjury or False Accusation
Porter	Kerry	Kentucky	1998	2011	Y	*	Mistaken Witness ID, Perjury or False Accusation
Smith	Timothy	Kentucky	2001	2006			Perjury or False Accusation, Inadequate Legal Defense
VonAllmen	Michael	Kentucky	1982	2010			Mistaken Witness ID