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.