Tuesday, December 31, 2013

Huffpost article interview with Sam Dalton

An Interview With Sam Dalton, Now In His Seventh Decade Of Criminal Defense Law 

 It seems like the job would also require a high threshold for disappointment. Aren't most criminal defense attorneys pretty cynical?

Oh, no. I think just the opposite. I always go back to the joke about the 11 year-old-twins. One of the twins was an eternal optimist. He only saw the good in everything, which made his parents fear that he'd be easily manipulated. His brother was an eternal pessimist. Only saw the bad in people, which his parents feared would make him sad and lonely. So they took the boys to a psychiatrist, who proposed an experiment. Per the psychiatrist's advice, the following Christmas the parents bought the pessimistic boy every toy he could possibly want. The optimistic boy woke up Christmas morning to several piles of horse manure. A week later, they took the boys back to the psychiatrist. He asked the pessimistic boy if had a good Christmas.
"It was terrible," he said. "I got all of these brand new toys, but I can't play with any of them because I'm afraid I'll break them."
The psychiatrist then posted the same question to the optimistic boy. "It was great!" he exclaimed. "I got a pony! I just haven't found him yet!"
Criminal defense attorneys deal with a lot of horses----. I think the thing that keeps us going -- or at least the thing that has kept me going -- is knowing that with all that s---, sooner or later you're going to find a pony.

So what are the ponies? Discovering wrongful convictions? Freeing an innocent person from death row?
Those are all important, yes. But those are rare. There are smaller, more attainable ponies. Getting evidence suppressed because you convinced a judge that a cop broke the rules. Getting a conviction overturned after you've shown that a prosecutor withheld evidence. Even in cases where the charges are relatively minor, there's great satisfaction in knowing that you forced the state to play by the rules, that you successfully held a powerful person to account.

read more

Monday, December 30, 2013

Government Mental Health Evaluations of Our Clients

jennifer.friedman's picture

This post was also published on the National Association for Public Defense Blog

The United States Supreme Court in Kansas v. Cheever reaffirmed the rule set forth in Buchanan v. Kentucky that the government does not violate a defendant’s Fifth or Sixth Amendment rights by offering testimony from a court ordered psychiatric evaluation to rebut a mental state defense offered by a defendant at trial.

The Court explicitly failed to address a number of important issues including the scope of this evaluation and consequent rebuttal testimony. Additionally, the propriety of such an evaluation and its scope in the first instance was not addressed in Cheever. Numerous states have enacted statutes governing government initiated mental status evaluations of criminal defendants pretrial. However, the existence of these statutes and their corresponding case law does not mean that these statutes pass constitutional muster.

While Kansas v. Cheever does not explicitly describe the constitutional limits of government initiated evaluations, Justice Sotomayor very clearly stated that court-ordered psychiatric evaluations are admissible “only for a limited rebuttal purpose” and nothing suggests, for example, that a defendant “opens the door to admission of psychiatric evidence on future dangerousness by raising an insanity defense at the guilt stage of the trial.”

We must be vigilant in protecting our clients from unnecessary and unconstitutional government initiated mental status evaluations. If the government notices or requests a psychiatric or psychological evaluation of your client, you, as counsel must request a hearing in which to litigate the propriety and scope of that evaluation. Your goal should be to prevent the evaluation from occurring but if it is to occur to limit its scope as much as possible. There are surely situations where it would be unconstitutional for the court to order an evaluation at all, for example if the defense does not intend to offer a mental state defense or when it can be shown that the prosecution is simply on a fishing expedition or the evaluation is to serve as a surrogate interrogation when your client has previously invoked his right to remain silent. It would also be inappropriate for a court to permit a mental health evaluator to conduct an evaluation when it is clear that he or she is partial and/or predisposed to come to a particular conclusion.  Maldonado 53 Cal.4th 1112 (2012).

Furthermore, there may be situations where it is appropriate for the defendant to refuse to participate in a court ordered mental status evaluation. Such a decision is dependent on the nature of the particular order by the court and the rules of your jurisdiction. The United States Supreme Court has yet to decide whether statements obtained during such an evaluation may be used to impeach a defendant who testifies but who does not offer a mental state defense at trial.

During the hearing on the scope of the evaluation the court should rule on the timing of the evaluation and its scope including the proper subjects of inquiry, improper subjects of inquiry, and what tests, if any may be administered. For example, it may be inappropriate for the evaluator to ask any offense-specific questions when conducting a sanity evaluation Traywicks v. Oklahoma, 927 P.2d 1062 (Okla.Crim.App.1996) where the court held he State needs the mental health evidence to rebut the insanity defense, and it seems logical that raising that defense waives the defendant's right to silence as to those mental health issues. However, evidence of the crime itself is a distinct and different question from the issue of mental illness. Accordingly, the defendant retains the right to assert his Fifth Amendment privilege as to the details of the crime. Of course, the defendant could waive his privilege to remain silent as to the details of the crime, but that waiver would have to be done knowingly and voluntarily after the administration of Miranda warnings., conduct personality testing when the only issue in the case is defendant’s drug use United States v. Taylor, 320 F.Supp.2d 790 (N.D. Ind. 2004) (See also Centeno v. Superior Court, 117 Cal.App.4th 30, 11 Cal.Rptr.3d 533 (2004), where the court held that a defendant who tenders his mental condition as an issue waives his Fifth Amendment right against self-incrimination to the extent necessary to permit a proper examination of that condition, “[o]therwise, there is a danger that defendants will be improperly subjected to mental examinations beyond the scope of the precise issue they have tendered and their resulting waiver of constitutional rights.” or offer a diagnosis of anti-social personality disorder when the defense intends only to offer evidence that the defendant has borderline intellectual deficits. U.S. v. Williams,731 F.Supp.2d 1012 (D. Hawaii 2010), See U.S. v. Johnson, 383 F.Supp.2d 1145 (N.D.Iowa,2005) for a comprehensive discussion of state and federal law on the scope of government initiated mental status evaluations. The court must determine whether the evaluation may occur pretrial or whether to defer ruling until the defense actually presents the mental state evidence in trial. It is becoming increasingly common for courts to order these evaluations pretrial. Therefore counsel must be prepared to litigate these issues significantly before trial commences.

The scope of rebuttal will be governed by the information obtained during the evaluation conducted by the government appointed expert and by the evidence of mental state you intend to offer at trial. Consequently, it is very important to formulate a specific referral question that narrowly focused and addresses only the issue relevant to your case. Any testing conducted by this evaluator should also be strictly limited to those tests necessary to answer the referral question.

Specific areas of inquiry or tests proposed by government experts may be beyond the scope of the defense proposed testimony. Counsel may also object to certain proposed tests on the grounds that the test has not been proved to be generally reliable or alternatively not reliable for the purpose being used in your case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The requested order should be explicit and comprehensive so that it covers any issue that might arise during the evaluation. Commonwealth v. Baldwin, 426 Mass. 105, 686 N.E.2d 1001, 1005 (1997)

You may request the court order the evaluator to permit you to be present during the evaluation. Typically this must be done in a fashion that does not compromise the evaluation. As an alternative, you might request the evaluation be recorded. United States v. Byers, 740 F.2d 1104, 1172 (D.C.Cir.1984)

In addition to litigating the scope of the evaluation, it is important to litigate who will be given access to the results of the evaluation and when. In federal court taint team lawyers are routinely employed to protect privileged information from dissemination to prosecutors involved in the prosecution and presentation of evidence at trial. Taint team lawyers are lawyers who are not involved in the trial of the case but tasked only with litigating issues surrounding the mental status evaluations. Another alternative to a taint team is for the report prepared by the government expert to be provided only to the court and defense counsel until such time as the defense presents its mental state evidence in trial. This may or may not be practical depending upon the scheduling of the case and whether there will be planned breaks taken during the trial or between the various phases of a trial.

If the prosecution is given access to the report pretrial, it is very important to ensure the government does not use any information obtained in connection with the evaluation to discover or present evidence against your client at trial. Gibbs v. Frank 387 F.3d 268, 274 (3rd Cir. 2004) In other words, counsel must object and request a hearing if the prosecution offers evidence that was obtained as a fruit of the government initiated mental status evaluation. Counsel should insist the court hold a hearing to determine the source of such evidence if this type of violation is suspected.

In conclusion, while the prosecution may offer evidence of a government initiated mental status evaluation to rebut defense mental state testimony, the scope of such an evaluation must be strictly limited. It is counsel’s duty and obligation to litigate issues surrounding the evaluation and if the court orders an evaluation, it is your obligation to ensure that your client’s 5th and 6th Amendments rights are not violated.

Friday, December 20, 2013

Coverage of Heroin Bill

Heroin treatment, penalties strengthened in bill for Kentucky General Assembly - Louisville Courier Journal 


• Kentucky Medicaid would be required to cover substance-abuse treatment for heroin and other opiates, which the bill’s authors believe would increase the number of treatment facilities and openings in existing facilities. 
• Drug traffickers could face homicide charges and high-volume dealers, those caught with four grams or more, would be required to serve at least 50 percent of their sentence before parole or shock probation. 
• Coroners and medical examiners would have to notify local law enforcement agencies of any overdose deaths caused by heroin and other Schedule I narcotics, which are drugs that have no medical use.
• Naloxone, commonly known as Narcan, would be more available with a doctor’s prescription. The drug, commonly used by paramedics, can bring someone back to consciousness during an overdose. 
• People who call 911 to prevent an overdose death would have some immunity to drug possession and drug paraphernalia charges. The overdose patient would also receive some immunity if they agree to attend a treatment program.
• Users who tell police they have needles on them could avoid paraphernalia charges. Some police officers have been accidentally pricked by needles, potentially exposing them to HIV. 
• Funding would be increased for Kentucky Agency for Substance Abuse Policy to improve anti-drug education campaigns.

Bill aims to boost treatment for heroin addicts, prison time for dealers - Lexington Herald-Leader

see video of press conference

Read more here: http://www.kentucky.com/2013/12/19/2996740/bill-aims-to-boost-treatment-for.html#storylink=cpy

Wednesday, December 18, 2013

Forensics Edition of the Advocate Now Available

The December edition of The Advocate features forensic related articles 
  • The Reliability and Admissibility of Forensic Science Evidence in Kentucky by Andrea Kendall 
  • Extraordinary Bedfellows: The Hair Microscopy Project by Linda Smith
Annotated Version
Mailing Version without annotations

Thursday, December 12, 2013

"Epidemic of Brady Violations" - 9th Circuit Chief Judge

Chief Judge Writes Scathing Dissent Warning of “Epidemic Of Brady Violations” By The Justice Department by Jonathon Turley

Chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals and considered a leading libertarian, Kozinski often rules in favor of individual rights — making him a refreshing voice on the federal courts which tend not only to be highly conservative on police powers but also populated by a disproportionate number of former prosecutors. Kozinski’s dissenting opinion this week in the case of Kenneth Olsen continues that legacy and further puts the bias of the federal court in favor of prosecutors into sharp relief. Kozinski opposed the denial of an en banc rehearing with four of this colleagues in the case of Kenneth Olsen, whose trial was marked by prosecutorial abuse. Kozinski began his decision with the chilling but true observation that “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” 

complete blog post by Turley 

Wednesday, December 11, 2013

New KIDS COUNT County Level Rankings on Child Well-Being Reveal Need for Smart Investments in KY Kids

From Kentucky Youth Advocates Press Release: 

The 2013 Kentucky KIDS COUNT County Data Book, released today by Kentucky Youth Advocates highlights the need for smart investments to ensure kids in all counties have the best opportunity to thrive in childhood and succeed as adults.

This is the 23nd annual release of the Kentucky KIDS COUNT County Data Book, part of the Kentucky KIDS COUNT project. The KIDS COUNT project monitors progress for Kentucky’s one million children on over 100 indicators of child well-being. This year’s book introduces a new approach, ranking Kentucky counties on overall child well-being and on four domains critical to that well-being: economic security, education, health, and family and community strength. Each domain includes four indicators of well-being, for a total of 16 indicators.

Youth Incarcerated in the Juvenile Justice System

A notable indicator in the family and community domain is the number of youth incarcerated in Kentucky’s Juvenile Justice system. In 2010-2012, Kentucky incarcerated 51.9 young people ages 10-17 for every 1,000 children that age. County incarceration rates varied widely, with 38 counties exceeding the state rate. The data show that most Kentucky youth are incarcerated for offenses that do not threaten public safety and could better be treated in the community than in a juvenile jail. Incarcerated youth face a greater probability of poor education, less employment, and poor mental health outcomes, and they are at increased risk of being incarcerated again.

“The opportunity exists to make significant changes in the Juvenile Justice System during the 2014 Kentucky General Assembly. The Unified Juvenile Code Task Force led by Senator Whitney Westerfield and Representative John Tilley is making progress, and we expect strong recommendations to result from their work. Significant reforms could put Kentucky youth on a better track for success, while also improving public safety and using tax dollars efficiently on what works,” added Brooks.

Monday, December 9, 2013

WDRB.com: Louisville police begin tracking problematic officers for prosecutors, defense

Six times during an armed robbery trial last December, defense attorney Frank Jewell asked Louisville Metro Police Det. Derrick Leachman whether he took photos at the crime scene.
Six times, Leachman testified under oath that he had not. 

But after Jewell's seventh attempt, Leachman finally acknowledged he had taken crime scene photos but "the pictures were lost and I didn't want to testify that I lost pictures," according to a video of the trial. 

A jury later acquitted the defendant and Leachman's testimony and actions were criticized by the prosecutor and the police department. In July, he was suspended 30 days for losing evidence and providing "misleading testimony" during the trial.

Now, as part of a new police policy, Leachman and more than two dozen officers whose conduct could be problematic in future cases have had their names and disciplinary issues turned over to prosecutors - and possibly to defense attorneys at some point.

Also as part of the policy, Police Chief Steve Conrad has put the department's 1,181 officers on notice that any violations involving untruthfulness "will likely lead to termination from this department."

Complete article and video 
 WDRB 41 Louisville News

Louisville C-J: Lawmaker urging tougher law for heroin dealing

A northern Kentucky legislator is calling for tougher jail penalties for heroin dealing, but treatment advocates argued that harsher criminal punishments don’t help with the problem of addiction.Sen. John Schickel’s proposal would impose harsher sentences for heroin trafficking, and a person would be charged with first-degree trafficking if they knowingly sold any amount of heroin.
complete article