Friday, November 30, 2012

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.

Wednesday, November 14, 2012

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.


Tuesday, November 13, 2012

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. 


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

Thursday, November 8, 2012

Harlan Public Defender Office Opens



 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



Monday, November 5, 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