Friday, September 27, 2013

KYSC - Allen - Self Representation and Standby Counsel

Ricky Allen v. Commonwealth, 2011-SC-000009-MR (rendered 9/26/2013)(to be published)

Mr. Allen ‘s Sixth Amendment rights were violated where Mr. Allen was permitted to represent himself at trial,  but was restricted from participating in bench conferences. The trial court allowed only standby counsel to participate in bench conferences based on the court’s determination that Mr. Allen was a threat to either disrupt the proceedings or flee, which left him unrepresented at critical stages of the trial proceedings.  Mr. Allen’s convictions of burglary in the third degree, criminal mischief in the first degree, theft by unlawful taking over $300.00, receiving stolen property, under $300.00, and being a persistent felony offender in the second degree, for which he received a sentence of twenty years, are reversed.  Tom Ransdell and Kate Benward represented Mr. Allen on appeal.  

Contributed by Karen Maurer

Thursday, September 26, 2013

Rep. Tilley Op-Ed about HB 463 - Lexington Herald-Leader

Ky.'s prison reform a model for nation with lower costs, recidivism

Nearly two months ago, when the U.S. attorney general announced major reforms for the Justice Department, those of us who oversee Kentucky's criminal justice system couldn't help but feel a strong sense of déjà vu.

That's because the problems noted in the federal system — skyrocketing prison populations coupled with limited options for drug treatment and alternative sentencing programs — are remarkably similar to the problems Kentucky faced several years ago, and the proposed solutions are largely modeled after the landmark criminal justice reforms that have governed our state for the last two years.

The groundwork for this was laid in 2010, when leaders of all three branches of state government came together to see how we could begin reversing the 45 percent growth Kentucky's prison system witnessed during the previous decade, a rate nearly four times the national average. 

Staying the course, especially at a time of budget cuts and a crime rate that was not improving, was both unsustainable and unwise.

A bipartisan, inter-branch task force I was proud to co-chair sought out solutions from anyone who had a stake in the outcome, including judges, prosecutors, defense attorneys, victims' advocates and local officials. Helping guide us was the Pew Center on the States, a non-profit organization that has extensive knowledge in this area.

The result of this work was House Bill 463, which became law in 2011 with only one dissenting vote. Since then, its successes have started to mount.

complete story

Read more here:


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Friday, September 20, 2013

AP - Fed prosecutors ask Ky. high court to overturn ethics rule over plea agreement language

 A lawyer gives his client bad advice about a plea agreement, resulting in the defendant being deported or spending more time in prison than expected before being parole eligible.

If the Kentucky Supreme Court agrees with federal prosecutors, that defendant won’t be able to later appeal his conviction because of the lawyer’s bad advice.

The Kentucky Supreme Court is weighing a request by the U.S. attorneys in Louisville and Lexington to overturn a Kentucky Bar Association rule detailing what may be included in plea agreements.

The bar issued an ethics advisory opinion in November banning defense attorneys from advising a client about a plea agreement requiring them to waive their right to challenge the attorney’s performance at a later date. In the same opinion, the Bar ruled that prosecutors may not propose a plea agreement that requires someone to waive the right to attack a defense attorney’s performance on appeal.

Complete article


Movant's Brief
Respondent's Brief
Movant's Reply Brief
Respondent's Response Brief
Amicus Curiae Brief 1
Amicus Curiae Brief 2

"Is it unethical for a criminal defense attorney to advise a client about a plea
agreement that requires the defendant to waive ineffective assistance of
counsel claims and is it unethical for a prosecutor to make such an offer."

Attorneys for Movant: Kerry Brent Harvey and David Jason Hale

Attorneys for Respondent: Thomas H. Glover, John D. Meyers and Brian Scott

Monday, September 16, 2013

KY Defenders Receive National Award for Pretrial Release Advocacy

National Association of Pretrial Service Agencies Recognize Pioneering Work of KY Defenders

(Orlando, FL, Monday September 16, 2013) The National Association of Pretrial Service Agencies (NAPSA) awarded the Kentucky Department of Public Advocacy NAPSA’s John C. Hendricks Pioneer Award for the Kentucky statewide public defender program’s strategic commitment to advance public defender advocacy across Kentucky resulting in an increase of release for indigents prior to trial.

Presenting the award in Orlando, Charlotte McPherson, Manager, Pretrial Services at Kentucky Administrative Office of the Courts, said “Kentucky defenders stand out. They have pushed the envelope with their advocacy to insure the pretrial release law is applied equally to those who are poor and unable to make money bail. Kentucky defenders decided to make pretrial release a priority with a comprehensive strategy to achieve just results for their clients by litigating for release at first appearance, challenging unfair decisions in the appellate courts, and sustaining this effort through continuous legal education of its attorneys. B. Scott West, DPA General Counsel and longtime public defender, leads DPA’s renewed emphasis on bail advocacy which has included creating the Kentucky Pretrial Release Manual, a ready litigation resource, and partnering with the KY Pretrial Release Officers on education and communication. Over the last two years pretrial release has increased 3% across Kentucky.”

“One of the most important objectives for our clients is release pretrial,” KY Public Advocate Ed Monahan said in accepting the award. “Empirical evidence shows that having counsel at the initial appearance before a judge improves the outcomes for a criminal defendant. And studies show that, holding all other factors constant, individuals who are detained prior to trial suffer from greater conviction rates and more severe sentencing than those who are released prior to trial. I am proud of this recognition of our KY defenders who are working to provide our clients with what we all expect for ourselves, vigorous advocacy for release at first appearance and on appeal. Improving our collaboration with the KY Pretrial Release Officers has been a critical part of the increase in release. These Officers are spectacular professionals.”

NAPSA is the national professional association for the pretrial release and pretrial diversion fields. The John C. Hendricks Pioneer Award is given from time to time by the NAPSA Board of Directors to specially recognize those who have been instrumental in guiding the pretrial movement to new levels of effectiveness,” said NAPSA President Cherise Fanno Burdeen. “We thank the Kentucky defenders for their dedication to pretrial justice. In conjunction with new legal reforms, new risk assessments and the professional work of the KY Pretrial Release Officers, DPA’s nationally recognized pretrial release initiative has avoided costs for KY jails without reduction in public safety

“As a result of HB 463, Kentucky finds itself once again at the forefront of pretrial justice reform. This time, however, there is a critical difference,” said Tim Murray, Executive Director of the Pretrial Justice Institute in Washington, D.C.  “Kentucky defenders refuse to allow the state’s justice system to operate as though reform has not been legislated. With dogged determination, defenders refuse to accept needless pretrial detention as a necessary evil of a busy justice system but instead insist that bail decisions regarding their clients be based upon measured risk – not the dollars they have in their pockets. The Department’s vigorous pursuit of pretrial justice in Kentucky has indeed set the standard for other communities to emulate. This award is the latest installment in recognizing their leadership.”

Jerry Cox of Rockcastle County, Chair of the KY Public Advocacy Commission, the statewide public defender governing board, and President of the National Association of Criminal Defense Lawyers, said “It is imperative for defense lawyers to represent their clients from the first appearance and vigorously advocate for pretrial release. Nothing less is acceptable. The pretrial release work by DPA has helped more clients be released prior to their trials. This is something we all want. And it saves counties money it can use for other needs.  It deserves this important national recognition.”

Tuesday, September 10, 2013

PBS Series - Brains on Trial with Alan Alda

 Brains on Trial centers around the trial of a fictional crime: a robbery staged in a convenience store that has been filmed by the store's security cameras. A teenager stands accused of the attempted murder of the store clerk's wife who was shot during the crime. While the crime is fictional, the trial is conducted before a real federal judge and argued by real practicing attorneys. The program is divided into two-parts: the first hour examines the guilt phase of the trial concluding with the jury's verdict; the second hour looks at the sentencing phase, when arguments for and against a severe sentence are heard.

As the trial unfolds, Alda visits with neuroscientists whose research has already influenced some Supreme Court decisions, as well as Duke University law professor Nita Farahany, a member of the Presidential Commission for the Study of Bioethical Issues. On these visits, neuroscientists show how functional MRIs and other brain scanning techniques are exploring lie detection, facial recognition, memory decoding, racial bias, brain maturity, intention, and even emotions. The research Alda discovers is at the center of a controversy as to how this rapidly expanding ability to peer into people's minds and decode their thoughts and feelings could – or should – affect trials like the one presented in the program. As DNA evidence has played a major role in exonerating innocent prisoners, Brains on Trial asks if neuroscience can make the criminal justice system more just.

Read more here:

Kentucky showings are listed below  

Determining Guilt #101 [TV-PG]
Discover how neuroscience is influencing the sentencing of defendants - especially young defendants.
  • KET Wednesday, September 11 at 10:00 pm EDT
  • KET2 Thursday, September 12 at 3:00 am EDT
  • KET2 Sunday, September 15 at 10:00 pm EDT
  • KET2 Monday, September 16 at 4:00 am EDT
Deciding Punishment #102 [TV-PG]
Explore the conceivable effects of neuroscience on criminal law and courtroom procedure.
  • KET Wednesday, September 18 at 10:00 pm EDT
  • KET2 Thursday, September 19 at 3:00 am EDT
  • KET2 Sunday, September 22 at 4:00 am EDT
  • KET2 Sunday, September 22 at 10:00 pm EDT

KYSC - Frazier - Terry Stop

Thomas Frazier v. Commonwealth, KSC, 8/29/2013, published—

Thomas Frazier was indicted for the offenses of Tampering with Physical Evidence, Possession of Drug Paraphernalia, First Offense, Promoting Contraband in the First Degree, Possession of Marijuana, Carrying a Concealed Deadly Weapon, and Littering.  Mr. Frazier moved to suppress the searches and seizures at the beginning of his trial.  The jury acquitted Mr. Frazier of Promoting Contraband, but found him guilty of the other offenses. The trial judge sentenced Thomas Frazier to a total sentence of five years imprisonment and a $500 fine.  He was ordered to serve 150 days of his sentence, with the remainder probated. 

The Court of Appeals reversed Mr. Frazier’s conviction for criminal littering, but affirmed each of the other convictions.  In a published opinion, the Court of Appeals held there were reasonable grounds for the stop of Mr. Frazier’s vehicle, that ordering Mr. Frazier from his vehicle and subsequently frisking him were appropriate actions, and that the search of his vehicle following his arrest was permissible under Arizona v. Gant, 556 U.S. 332 (2009).  

The KSC reversed and remanded,  holding that the Terry frisk was unconstitutional where police officers articulated insufficient facts that would lead a reasonable person to believe that Frazier was armed and dangerous. The Court held that even if the officers had sufficient reasonable suspicion to justify the frisk, the search into Mr. Frazier’s pants pocket exceeded the scope of the Terry frisk because the contents in Mr. Frazier’s pocket were not immediately identifiable as contraband. Since the pat down search that led to Mr. Frazier’s arrest was unconstitutional, the Court therefore concluded that the vehicle search incident to the unlawful arrest was also unlawful.

Mr. Frazier represented himself at the trial court and Thomas Ransdell/Kate Benward represented Mr. Frazier on appeal.

Tuesday, September 3, 2013

KYSC - Buster - State Actor & Custody for Interrogation

Buster, Kenneth – 11-SC-92 & 11-SC-93 – To Be Published – Hart County – Affirmed.

The Kentucky Supreme Court held that a Cabinet Social Worker who interviewed a prison inmate about a new investigation was a cooperative state actor for purposes of a Miranda analysis. However, given recent SCOTUS precedent in Howes v. Fields, U.S. , 132 S. Ct. 1181, 1188-89 (2012), under the totality of circumstances a majority of the Court did not believe Appellant was in custody for the interrogation. Justices Noble and Minton dissented, noting that “generally, the inmates are not in charge of when they may come and go.”

Contributed by Linda Horsman

KYSC - Sitar - Appeal v. CR 60.02

Phillip Sitar v. Commonwealth et. al.- SCT, 8/29/13, published

The Court affirmed the denial of relief by the Court of Appeals under CR 60.02, holding that the client, who was challenging jurisdiction of the trial court to grant an EPO and then DVO, should have filed a direct appeal. The Court believed the claims the client was making concerned the trial court’s erroneous actions acting within that court’s jurisdiction and were not claims of the court acting outside its jurisdiction. Kathleen Schmidt represented Mr. Sitar on appeal and Hon. Paul Sysol represented him in the trial court. 

Contributed by Linda Horsman