Thursday, May 24, 2012

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

Monday, May 21, 2012

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. 

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 -

Contributing FactorsOpen Menu


Mistaken Witness ID, False Confession
Mistaken Witness ID, False or Misleading Forensic Evidence, Official Misconduct

Perjury or False Accusation
PorterKerryKentucky19982011Y*Mistaken Witness ID, Perjury or False Accusation

Perjury or False Accusation, Inadequate Legal Defense

Mistaken Witness ID

Thursday, May 17, 2012

Louisville Courier-Journal Editorial - State needs to change DNA testing law

It has been 23 years since the first person wrongly convicted of a crime was exonerated through the science of DNA testing. Since then, 289 people in 35 states found guilty of offenses have been exonerated through DNA tests, according to the Innocence Project website,

Yet Kentucky stands squarely behind the times when it comes to updating its laws and policies on DNA testing in cases where people claim they have been wrongly convicted for serious offenses.

Complete editorial

Thursday, May 10, 2012

Gunshot Residue Analysis

Gunshot residue is actually a compound containing either two or three particles commonly found in gunshot residue or primer residue.  Examiners will say that particles with  lead, antimony and barium present are indicative of gunshot residue while particles with two of the three particles are consistent with primer residue.  The report issued by Hamilton County’s laboratory will state that two element particles “are found in primer residue, but also may originate from other sources.”  For this reason, the use of gunshot residue is no longer accepted by many crime scene laboratories and forensic scientists.[1]

The possibility of transfer of particles resulting in the contamination of the hands or clothes tested creates another area for challenge.  All particles containing lead, antimony, or barium are very large.  Additionally, these particles persist almost indefinitely.  Furthermore, because the particles are rather large, they can easily transfer from hands, firearms, and furniture to clothing.[2]  If particles consistent with gunshot residue are found on hands, it indicates the person (a) had discharged a firearm, (b) had been near a discharged firearm, or (c) had come into contact with something that had gunshot residue on it.  If particles are found on clothing, it indicates that the item (a) had been worn while a person discharged a firearm, (b) had been near a discharged firearm, or (c) had come into contact with something that had gunshot residue on it. 

[1] Bykowicz, Lawyers Call City Analysis of Gunshot Residue Flawed, Baltimore Sun, Mar. 5, 2005; Orrick, Anoka Judge Rejects Gunshot Residue Evidence, St. Paul Pioneer Press, July 13, 2006 (quoting Judge Hall: “This court is not convinced that the relevant scientific community has a generally accepted standard for interpreting what conclusions can be drawn from GSR testing and analysis. . . . It is clear that significant questions exist . . . Concerning how many particles are required for there to be a positive test.”)

[2] See Summary of FBI Laboratory’s Gunshot Residue Symposium, May 31-June 3, 2005 available at  (last visited Nov. 21, 2011)

Contributed by Andrea Kendall

Tuesday, May 1, 2012

KY SC March 22 - Mash- Race-Neutral Strike

BILLY MASH V. COMMONWEALTH, 2010-SC-000584-MR, To-be-published, March 22, 2012, Affirming - 

Evidence presented was insufficient to support a fair cross-section challenge to the jury panel. A juror’s negative demeanor was a sufficient race-neutral reason for the prosecutor’s use of a peremptory challenge to strike the juror from the venire. Although not an element of first-degree sodomy, the Commonwealth produced sufficient evidence of penetration to meet the unnecessary specific element of the jury instruction. No evidentiary foundation was presented for an instruction on sexual abuse. 

TRIAL TIP:  Unfortunately, an attorney cannot just show up the morning of trial, decide there are not enough minority jurors, and move to strike the panel.  Information must be collected ahead of time concerning the relevant underrepresentation for a number of jury panels, and statistical evidence should be presented.  If there is a statistically proven underrepresentation over a period of time, only then would the state have to change the way it selects people for jury service.  Because this is a systemic issue, and because of the size of such an undertaking and the number of cases it would affect, trial attorneys are advised to work closely with their Directing Attorney, Regional Manager, and Trial Division Director in order to challenge county practices that result in underrepresentation of an identifiable minority on jury panels. 

Contributed by Susan Balliet

KY SC March 22 - Smith - Instructions and Court Costs

ROBERT DWAYNE SMITH V. COMMONWEALTH, 2011-SC-285-MR, 3/22/12, Affirming in Part, Vacating and Remanding in Part. 

First-degree robbery and PFO I – 32 years. The evidence was, only, that Smith struck the victim.  But the instructions allowed the jury to convict if they thought Smith or one of his complicitors struck the victim.  While the first-degree robbery instruction did include a theory unsupported by the record, because there is no possibility that any juror voted to convict the defendant under the unsupported theory, the error was harmless. Case remanded for entry of a new judgment excluding surplus vague provision that could be construed as imposing court costs.

Contributed by Susan Balliet

KY SC March 22 - Copley- Affidavit In Support of Search Warrant

RONALD COPLEY V. COMMONWEALTH, 2011-SC-63-MR – March 22, 2012, Affirming.

Murder-20 years. Even though the affidavit in support of the search warrant was not properly sworn before an individual authorized by a judge of the county to administer oaths pursuant to RCr 2.02, suppression was not warranted because the error was not of constitutional magnitude, the error did not prejudice the defendant and there was no deliberate disregard of the Rules. Deputy Cain swore the affidavit before a notary public, an employee of the Commonwealth Attorney's office. There being no available circuit or district court judge or trial commissioner, the circuit clerk reviewed the affidavit, found probable cause and issued the search warrant. Under KRS 15.725(5) the circuit clerk was statutorily authorized to issue the warrant.

Contributed by Susan Balliet