Brady Alert - Sniffer Dogs

A NEW TOOL for DISCOVERY:      In Florida v. Harris, 133 S.Ct. 1050, 1057 (2013) the U.S. Supreme Court recently held that trained and certified sniffer dogs can provide probable cause to search. The Court also stated that a court’s presumption that a dog's alert provides probable cause is “subject to any conflicting evidence offered.” Id. Kentucky’s 115-year-old decision in Pedigo v. Com., 103 Ky. 41, 44 S.W. 143 (Ky. 1898) also requires a proper foundation for introduction of sniffer dog evidence at trial to include 1) the dog's scent tracking record; 2) the qualifications of its handler, and 3) the dog’s training and history. Debruler v. Com., 231 S.W.3d 752, 756 (Ky., 2007).

Operative language from Florida v. Harris includes the following:

A defendant [may] cross-examin[e] the testifying officer or [introduce] his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. [and may present] evidence of the dog's (or handler's) history in the field… (“[T]he defendant can ask the handler… on the stand, about field performance, and then the court can give that answer whatever weight is appropriate”). … circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.

Florida v. Harris, 133 S. Ct. 1050, 1057-58, 185 L. Ed. 2d 61 (2013)

MOVE for DISCOVERY and PRESERVE OBJECTIONS:  Harris provides defenders with authority to explore not only the reliability of a sniffer dog’s past usage, but also the training of both the dog and the handler.  We can do this pre-trial or at trial.  Also NOTE: The 9th Circuit recently found a Brady violation where the state had knowledge of the dog’s previous mistaken alerts, and failed to disclose it to defense counsel. Aguilar v. Woodford, 09-55575, 2013 WL 3870727 (9th Cir. July 29, 2013).

Contributed by Susan Balliet

Radio Show 'Here and Now' discusses Holder's Smart of Crime and Kentucky's Success

Holder Scales Back Use Of Harsh Drug Sentences

Attorney General Eric Holder says low-level, nonviolent drug offenders who have no link with gangs or organized crime will no longer be charged with crimes that impose harsh mandatory minimum sentences.

The U.S. prison population has increased by about one-third since the 1980s, when legislation was passed to get tough on the use of marijuana and crack cocaine.

Holder also announced that older, non-violent inmates will be released if it’s determined they pose no threat to the public.

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Kentucky Among States Already Reducing Drug Sentences

Kentucky is one of a growing number of states that have directed money away from prison construction and toward treatment programs for low level, nonviolent drug offenders.
Kentucky legislation has reserved prison for the most serious offenders.

The state is projected to save $400 million dollars over the next 10 years by focusing on drug treatment and community supervision programs for drug offenders.

Kentucky’s secretary of justice and public safety, J. Michael Brown, joins us to explain what the state is doing.

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Smart on Crime Initiative Anounced by Eric Holder

Eric Holder unveils new reforms aimed at curbing US prison population - The Guardian

Reversing years of tough Washington rhetoric, attorney general calls levels of US incarceration 'ineffective and unsustainable'

The US government took the first tentative steps toward tackling its 1.5m-strong prison population on Monday by announcing that minor drug dealers would be spared the mandatory minimum sentences that have previously locked up many for a decade or more.

Reversing years of toughening political rhetoric in Washington, attorney general Eric Holder declared that levels of incarceration at federal, state and local levels had become both "ineffective and unsustainable."

The Department of Justice will now instruct prosecutors to side-step federal sentencing rules by not recording the amount of drugs found on non-violent dealers not associated with larger gangs or cartels.

"Our system is in many ways broken," Holder told the American Bar Association in San Francisco. "As the so-called war on drugs enters its fifth decade we need to ask whether it has been fully effective and usher in a new approach."

"Too many Americans go to too many prisons for far too long and for no truly good law enforcement reason," he said, adding later: "We cannot simply prosecute or incarcerate our way to becoming a safer country."

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Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association's House of Delegates

SMART on CRIME: Reforming The Criminal Justice System for the 21st Century

Exonerated death row inmate speaks to abolish capital punishment in Kentucky - Kentucky New Era

Since the reinstatement of the death penalty in Kentucky in 1976, there have been 78 people initially sentenced to capital punishment.

And according to two-year study from the American Bar Association’s Kentucky Assessment Team on the Death Penalty, 52 of those people’s convictions were overturned on appeal. That’s a 60 percent error rate, and what the ABA calls a waste of the commonwealth’s resources.

On Monday night, an example of one of those 52 people – whose conviction was not only overturned, but also resulted in his exoneration, though in Illinois – spoke to an attentive crowd at Saints Peter and Paul Catholic Church in Hopkinsville, sponsored by the Kentucky Coalition to Abolish the Death Penalty, to bear witness to his experience being a wrongfully accused on death row and why he has dedicated his life to abolishing the death penalty nationwide

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