When I became Kentucky's public advocate in 1996, one of the first things I did was to call on policy makers to follow the American Bar Association's call for a moratorium on executions. I'd been a public defender for 19 years and, after handling numerous capital cases, had seen firsthand that the death penalty was broken beyond repair.
In 12 years as public advocate, everything I saw reinforced that view. I saw the death penalty was being used against the poor, people with mental retardation and mental illness, as well as people of color. I saw that many lawyers defending capital defendants were not qualified and that the death penalty was used in some counties but not in others.
The problems with the death penalty are once again staring us in the face. A group of prominent Kentuckians, including two former Supreme Court justices, has spent the last two years conducting an in-depth study of how the death penalty works in our state.
Tuesday, January 31, 2012
Monday, January 30, 2012
Court of Appeals, 2010-CA-001477-MR
Fred A. Stine, Judge, Campbell County
Before: Clayton, Stumbo, and Thompson
To-be-Published, Vacating and Remanding
Opinion by Judge Clayton
After a routine traffic stop based on expired tags, Officer Dunn ascertained that there were no warrants or other problems relating to West and his passengers. But the passengers’ attire was unusual, a female passenger did most of the talking, and she lied about where they were coming from. After the warrant check was complete, because he was curious, Officer Dunn asked West to step from the vehicle. West then admitted he had nine-and-a-half Percocets.
Held: The above facts did not give rise to a reasonable and articulable suspicion of criminal activity. It would have been legal for the officer to ask West to step out as a safety precaution while checking on warrants. Pennsylvania v. Mimms, 434 U.S. 106, 111, n. 6 (1977). But the warrant check was complete when the officer asked West to step out. The officer had observed no new behavior and learned no new facts in addition to what he had noted during the course of the stop. The subsequent detention was not “reasonably related in scope to the circumstances that justified the interference in the first place.” Epps v. Commonwealth, 295 S.W.3d 807, 812 (Ky. 2009).
Practice tip: West argued below that the Commonwealth didn’t prove voluntary consent to leave the vehicle because any reasonable person under the circumstances would not feel free to refuse the officer’s request. But the COA more properly decided the issue as a question whether there was reasonable suspicion to continue or expand the detention. Involuntariness of consent is tough to establish. Watch for moments in traffic stops where one detention ends and a new detention begins. There must be new grounds for a new detention.
Contributed by Susan Balliet
Friday, January 27, 2012
The Criminal Defense Role: Our Part, And The Help We Need: by John Landon, from the KY Department of Public Advocacy
The Kentucky Department of Public Advocacy, our state’s public defender program, represents clients suffering from mental illness on a daily basis. We have clients undergoing evaluations for criminal responsibility, we represent clients at competency hearings, and we represent many clients undergoing civil commitment procedures. In short, most of our attorneys know the intersection of mental illness and the criminal justice system. The Fayette County Office of the department set up a team of lawyers specializing in mental health issues to address some of the problems faced. However, we often see a lack of structured support for clients once their criminal cases have been resolved, leading to re-cidivism. Also, sometimes this lack of support becomes a factor when we attempt to negotiate a favorable resolution.
Thursday, January 26, 2012
Court of Appeals, 2010-CA-000607-MR
Frank Allen Fletcher, Judge, Powell County
Before: Taylor, Chief Judge, Caperton, and Clayton
To-be-Published, Reversing and Remanding
Opinion by Judge Caperton
Johnson pled guilty to drug charges conditional on the appeal of the denial of his motion to dismiss his indictments. Johnson moved to suppress the evidence and dismiss the indictments because neither the Attorney General’s Office nor Operation UNITE detectives had jurisdiction to conduct the investigation in Powell County. No local law enforcement officer from Powell County was involved.
Held: The COA reversed Johnson’s conviction and ordered that on remand the trial court must assess whether the indictments --obtained based on testimony presented to the grand jury by the Attorney General and Operation UNITE-- should be dismissed due to lack of jurisdiction.
The COA held that the Attorney General’s Office lacked jurisdiction because it was not invited to participate in this investigation as required by Kentucky Revised Statutes (KRS) 15.200. Also, the UNITE officers could not lawfully engage in the arrest because Powell County is outside their jurisdiction, the congressional district of Hal Rogers.
KRS 218A.240(1) provides the Attorney General’s Office with the authority to investigate crimes within its jurisdiction. But those powers can be modified by statute, and KRS 15.200 requires that a request must be made of the Attorney General’s Office in writing for it to intervene, participate or direct any investigation or criminal action. In other words, “it takes the governor, courts, grand juries, sheriff, mayor, or majority of a city legislative body to invite the Attorney General to participate in an investigation or to bring a prosecution.”
Practice tip: Jurisdiction, jurisdiction, jurisdiction. If it’s not there, your client wins. Congratulations to Lisa Whisman, the trial attorney who preserved this issue for appeal.
Contributed by Susan Balliet
Monday, January 23, 2012
The opinion is available here.
Issue: Whether the Constitution allows police to put a tracking device on a car without either a warrant or the owner's permission; and whether the Constitution is violated when police use the tracking device to keep track of the car's whereabouts.
Supreme Court limits police use of GPS to track suspects - Chicago Tribune
The Supreme Court for the first time ruled on Monday that police attachment of a GPS device to monitor a suspect's vehicle was a search protected by constitutional privacy rights, a test case involving new surveillance technology.The high court's ruling was a defeat for the Obama administration, which defended the use of global positioning system devices without a warrant and without a person's knowledge as a legal way to monitor a vehicle on public streets.
The justices upheld a precedent-setting ruling by an appeals court that the police must first obtain a warrant to use a GPS device for an extended period of time to covertly follow a suspect.The high court unanimously held the government's placement of the GPS device to a vehicle and using the device to monitor the vehicle's movement was covered by U.S. constitutional protections against unreasonable searches and seizures of evidence.
Court of Appeals, 2010-CA-00437-MR
Andrew Self, Judge, Christian County
To be Published Opinion, Affirming
Before: Moore, Stumbo, and Wine, Judges.
Opinion by Judge Wine
If the search in this case been conducted after Arizona v. Gant, 556 U.S. 332 (2009), it would have been unlawful. Under Gant, an automobile search incident to a recent occupant's arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains evidence relevant to the crime of arrest.
But under the more recent Davis v. United States, __U.S.__, 131 S.Ct. 2419, 2428 (2011) for any search –like this one-- conducted prior to Gant, the exclusionary rule does not apply if the police officers have conducted a search in “objectively reasonable reliance” on appellate precedent that was binding at the time of the search. Id. at 2434.
Acknowledging Davis, Artis asked the Court to find the search was unconstitutional on state law grounds. But the COA held that while the Kentucky Constitution has been held to offer greater protection of the right of privacy than provided by the federal constitution, Kentucky courts have never extended this greater privacy protection to searches and seizures. The Kentucky Supreme Court has stated that “Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment.” LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky. 1996).
Contributed by Susan Balliet
Friday, January 13, 2012
Court of Appeals, 2011-CA-001054-MR
Olu A. Stevens, Judge, Jefferson County
Not To be Published Opinion, Dismissing [Bond Conditions] Appeal
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Opinion by Judge Moore
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Partee was released pre-trial on her own recognizance. Thereafter, the circuit court ordered her to submit to an inpatient evaluation at KCPC to determine criminal responsibility. Upon completion of the evaluation, Partee was to be released once again on her own recognizance.
Partee filed an appeal to the COA pursuant to RCr 4.43, which permits an expedited appeal from a circuit court decision that changes “the conditions of bail.” The COA held that since Partee was not released on bail, but on her own recognizance, the COA lacked jurisdiction to consider her appeal under RCr 4.43, and her only recourse is to file an original action under
In a long footnote, the COA complained that RCr 4.43 was not followed in this appeal and was “not expedited in any manner.” The COA scolded counsel for Partee as well as the Commonwealth for not moving the Court to comply with RCr 4.43(1)(d), once it became aware that the COA was not acting to decide the case in a timely manner.
Practice tip: As the dissent points out, bail jumping charges have always applied if you fail to appear, whether it’s from OR or a regular bond. This case suggests a defense an OR person has never had before.
Contributed by Susan Balliet
Court of Appeals, 2010-CA-001509-MR
Audra J. Eckerle, Judge, Jefferson County
To be Published Opinion, Reversing and Remanding
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Before: Taylor, Chief Judge; Acree and Vanmeter, Judges.
Opinion by Judge Acree
Lukjan was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300, and sentenced to twelve years. The COA reversed the conviction, and remanded for a new trial. Lukjan was denied a defense when the circuit court refused to allow the defense arson expert to testify on the ground that he wasn’t a licensed investigator as required by KRS 329A.015 and KRS 329A.010 (prohibiting an individual from holding himself out to the public as a private investigator). On remand, the circuit court must judge Lukjan’s proffered experts based on KRE 702 and caselaw. Under those standards, licensure is not necessary to qualify as an expert, though it may be a factor. See Fugate v. Commonwealth, 993 S.W.2d 931 at 935.
The COA also reversed the circuit court’s decision to admit the prosecution’s arson opinion evidence without either an adequate Daubert hearing, specifically without examining “the portions of the record which would have enabled the court to determine the reliability and relevance of the evidence.”
Practice note: Consider carefully what is contained in the “certified business record” you are trying to get admitted. The COA held that a lightning strike report wasn’t admissible as a business record under KRE 902(11), because the certification said the data was “detected and recorded by National Lightning Detection Network Sensors, and processed by “[h]ighly refined algorithms[.]” The COA held the proffered report appeared to be scientific evidence whose admissibility is governed by KRE 702 and not a business record “as contemplated by KRE 803(6) and KRE 902(11).” If the record you are trying to get admitted was not made by a human being, you may need to subpoena the custodian.
Contributed by Susan Balliet
Wednesday, January 11, 2012
The Supreme Court opinion in Perry v. New Hampshire is available in Adobe .pdf format.
The inital AP report is, "Court rules against man convicted by eyewitness ID.
Justice Ginsburg announced the first opinion of the day, in Perry v. New Hampshire. By a vote of eight to one, the Court affirmed the decision of the New Hampshire Supreme Court, holding that the Due Process Clause does not require an inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances by law enforcement. Justice Thomas filed a concurring opinion; Justice Sotomayor filed a dissenting opinion.
Tuesday, January 10, 2012
Paying a Price, Long After the Crime By ALFRED BLUMSTEIN and KIMINORI NAKAMURA
A stunning number of young people are arrested for crimes in this country, and those crimes can haunt them for the rest of their lives. In 1967, President Lyndon B. Johnson’s Crime Commission found that about half of American males could expect to be arrested for a nontraffic offense some time in their lives, mostly in their late teens and early 20s. An article just published in the journal Pediatrics shows how the arrest rate has grown — by age 23, 30 percent of Americans have been arrested, compared with 22 percent in 1967. The increase reflects in part the considerable growth in arrests for drug offenses and domestic violence.
The impact of these arrests is felt for years. The ubiquity of criminal-background checks and the efficiency of information technology in maintaining those records and making them widely available, have meant that millions of Americans — even those who served probation or parole but were never incarcerated — continue to pay a price long after the crime. In November the American Bar Association released a database identifying more than 38,000 punitive provisions that apply to people convicted of crimes, pertaining to everything from public housing to welfare assistance to occupational licenses. More than two-thirds of the states allow hiring and professional-licensing decisions to be made on the basis of an arrest alone.
Monday, January 9, 2012
Bill would keep kids out of criminal justice system - Lexington Herald-Leader
Should 5-, 6- and 7-year-olds face criminal charges?
In 2009 and 2010, complaints were filed against at least 748 Kentucky children younger than 11 for offenses that included being out of control, minor injury assaults and criminal mischief. Sixty-three of those children were ages 5, 6, and 7, according to a 2011 Herald-Leader analysis of state records. Eight of those children were 5 years old.
State Rep. Darryl Owens, D-Louisville, last week introduced House Bill 143, which would prohibit children 10 or younger from being charged with criminal offenses. Instead, those children could be found neglected or dependent on the state for services.
Campbell pilot program addresses kids in courts- Lexington Herald-Leader
Campbell District Judge Karen Thomas is developing a pilot project aimed at keeping children 10 and younger out of the criminal justice system and keeping runaways and truants who do not commit crimes out of jail.
The project will include intensive case management. Thomas said she would like to have it operating in Campbell County within six months and then duplicated in other counties.
Tuesday, January 3, 2012
Early releases will put penal code reform to test - Lexington Herald-Leader
It has been nearly six months since the most sweeping changes to Kentucky's penal code in decades, but the first major test of the philosophy behind them will begin Tuesday when nearly 1,000 state prisoners are granted early release.
House Bill 463, the comprehensive and controversial overhaul that became state law June 8, was intended to save more than $40 million a year in Department of Corrections costs, with a large chunk of those savings being reinvested in community supervision and counseling programs to keep prisoners from ending up back behind bars on the taxpayers' dime.
The prisoners released Tuesday will be monitored by the department of probation and parole for the last six months of their sentences. If successful, the state could see millions of dollars in savings from the first batch of releases alone.
The average yearly cost to incarcerate a state prisoner in Kentucky is $21,906, according to data from the Department of Corrections. The average cost to supervise out-of-custody criminals is a fraction of that — $987.Savings probably won't be calculable until later this year, Kentucky Justice Cabinet Secretary J. Michael Brown said. Other portions of the bill are still works in progress.
Monday, January 2, 2012
Public defenders seek changes to Kentucky repeat-offender law - Louisville Courier Journal
Prosecutors view the harsher penalties as a tool to crack down on career criminals and counteract the effects of early-release programs.
But since 1980, the number of state inmates sentenced under the PFO law has grown from 79 to more than 4,000, costing Kentucky taxpayers nearly $89 million in incarceration costs each year. Critics say that’s too much, given the state’s budget problems.
“We really can’t afford to continue this policy,” said Ed Monahan, head of the Kentucky Department of Public Advocacy.
The department, long opposed to the 35-year-old law, hopes to make its most forceful push to date for “modest adjustments” during the 2012 legislative session.
“Our major point is, this is costing Kentucky a lot of money and it is being applied to inmates who don’t fit the criteria of being incorrigible,” he said. “We ought to start to make modest adjustments that won’t in any way affect public safety.”
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