Wednesday, December 31, 2014

County Attorneys collect $4.1 million diverting 28,468 County Traffic Safety cases

County Traffic Safety Program Authorized by Legislature
Since fiscal Year 2013, County Attorneys have had the discretion to create a County Traffic Safety Program under KRS 186.574(6):

(6) (a) Except as provided in paragraph (b) of this subsection, a county attorney may operate a traffic safety program for traffic offenders prior to the adjudication of the offense.
(b) Offenders alleged to have violated KRS 189A.010 or 304.39-080, offenders holding a commercial driver's license under KRS Chapter 281A, or offenders coming within the provisions of subsection (5)(b) or (c) of this section shall be excluded from participation in a county attorney-operated program.
(c) A county attorney that operates a traffic safety program:
1. May charge a reasonable fee to program participants, which shall only be used for payment of county attorney office operating expenses; and
2. Shall, by October 1 of each year, report to the Prosecutors Advisory Council the fee charged for the county attorney-operated traffic safety program and the total number of traffic offenders diverted into the county attorney-operated traffic safety program for the preceding fiscal year categorized by traffic offense.
(d) Each participant in a county attorney-operated traffic safety program shall, in addition to the fee payable to the county attorney, pay a twenty-five dollar ($25) fee to the court clerk, which shall be paid into a trust and agency account with the Administrative Office of the Courts and is to be used by the circuit clerks to hire additional deputy clerks and to enhance deputy clerk salaries.

The County Traffic Safety Program can be offered in place of the Traffic School option in KRS 186.574 (1)-(5).

$2,505,149 collected in 66 counties in FY 2013
In FY 13, there were:

  • 48,447 traffic school completions with 24% accomplished through online or DVD;
  • 18,279 cases were diverted under the county attorney created traffic safety programs
  • $2,505,149 collected
  • $456,975 going to clerks
  • $2,048,174 going to County Attorneys
  • $454,170 went to vendors
  • 66 of the 120 County Attorneys creating a traffic safety program
  • Average total fee paid per case was $137

$4,128,280 collected in 73 counties in FY 2014
In FY 14, there were

  • 28,468 cases were diverted under the county attorney created traffic safety programs
  • $4,128,280 collected
  • $711,700 going to clerks
  • $3,416,580 going to County Attorneys
  • $587,300 went to vendors
  • 73 of the 120 County Attorneys creating a traffic safety program
  • Average total fee paid per case is now $147

This means

  • another 10,000 cases are not in the system getting a court cost placed on them on top of the previous 18,000 cases 
  • the number of participating County Attorneys has increased by 7 to 73
  • the average fee has  increased to $145
  • an increase of $1.6 million collected bringing it to $4.1 million.
A summary of the FY 13 and 14 data is:

Passage of county traffic diversion, 2012’s HB 480, has resulted in substantially less funding for:
1.    General fund (49%);
2.    Kentucky Local Correctional Facilities Construction Authority under KRS 441.605 to 441.695 (10.8%);
3.    Spinal cord and head injury research trust fund (6.5%);
4.    Traumatic brain injury trust fund created in KRS 211.476 (5.5%);
5.    Circuit clerks to hire additional deputy clerks and to enhance deputy clerk salaries (5%);
6.    Department for Public Advocacy (3.5%);
7.    Crime victims' compensation fund created in KRS 346.185 (3.4%);
8.    Justice and Public Safety Cabinet to defray the costs of conducting record checks on prospective firearms purchasers pursuant to the Brady Handgun Violence Prevention Act and for the collection, testing, and storing of DNA samples (0.7%);
9.    County sheriff in the county from which the court cost was received (10.1%);
10.    Fiscal court in that county for the purposes of defraying the costs of operation of the county jail and the transportation of prisoners (5.5%).
See: KRS 42.320

And also the following under 23A.206; 23A.2065; 24A.176:
1.    $20 to local governments - for payment of expenses for operation of the local government's police department or contracted police services. All funds distributed to counties with fiscal responsibilities for jails or the transporting of prisoners shall be used for the payment of costs associated with the housing or transporting of prisoners.
2.    $5 to the Cabinet for Health and Family Services for the operation of a telephonic behavioral health jail triage system as provided in KRS 210.365 and 441.048 and $5 to General Fund.

Ongoing litigation over the legality of the application of the HB 480 County Traffic Safety Program is now in the KY Supreme Court

Litigation over whether the County Traffic Safety Program is diversion, whether a County Attorney can dismiss the case or whether a Judge must dismiss the case, and whether a court cost can or must be applied to the case has worked its way to the Kentucky Supreme Court in a case out of Jefferson County District Court.

On June 25, 2013 the Chief Judge of the Jefferson District Court ruled:

  • The traffic diversion program is a “diversion” program
  • RCr 8.04 addresses pretrial diversion and requires “the approval of the trial court” for pretrial diversion
  • RCr 9.64 addresses dismissal of indictment and  requires permission of the court for dismissal of a citation
  • Once a citation is issued a case can only be dismissed by the court under RCr 8.04, RCr 9.64 and  KY Constitution Sections 27, 28, 116
  • Court costs can be assessed in diverted cases
  • Court costs must be paid on the diverted case in question
On November 18, 2013 the Jefferson Circuit Court entered an order prohibiting enforcement of the District Court’s June 25, 2013 order because KRS 24A.175(3) requires court costs only “upon conviction in a case and KRS 186.574(6) authorizes a traffic safety program “prior to the adjudication of the offense.”

On December 27, 2013 the Court of Appeals entered an order recommending transfer to the KY Supreme Court since the matter was of “great and immediate importance” because of the “potential lost revenue to the state treasury….”

Ann Bailey Smith, Chief Judge, Jefferson District v. Commonwealth of Kentucky Ex. Rel. Michael J. O'Connell and Timothy Higgins, No.  2013-SC-000828, was argued in the Kentucky Supreme Court on December 11, 2014 with David Sexton arguing for Appellee Mike O’Connell and Greg Haynes arguing for Appellant Judge Smith. The dispute now awaits decision by the Kentucky Supreme Court.

$3.7 million lost to court cost beneficiaries

If the 28,468 cases diverted in fiscal year 2014 had a $130 court cost applied and collected, there would have been $3,700,840 collected and distributed according to the Court Cost distribution formula set out in KRS 42.320, 23A.206, 23A.2065, and 24A.176. 

Contributed by Ed Monahan, Public Advocate

Tuesday, December 23, 2014

The Marshall Project: PowerPoint Justice

The Marshall Project just published a must read article about cases reversed due to inappropriate use of PowerPoint visuals by the prosecution.  

PowerPoint Justice: When prosecutors slide around the law. 

At least 10 times in the last two years, US courts have reversed a criminal conviction because prosecutors violated the rules of fair argument with PowerPoint. In even more cases, an appellate court has taken note of such misconduct while upholding the conviction anyway or while reversing on other grounds (as in the case of Sergey Fedoruk). Legal watchdogs have long asserted that prosecutors have plenty of ways to quietly put their thumb on the scales of justice —such as concealing exculpatory evidence, eliminating jury-pool members based on race, and so on. Now they can add another category: prosecution by PowerPoint. “It’s the classic ‘A picture is worth a thousand words,’” said Eric Broman, a Seattle attorney who focuses on criminal appeals. “Until the courts say where the boundaries are, prosecutors will continue to test the boundaries.”

Read entire article

Monday, December 22, 2014

KY COA - Jackson - MH Eval before charges

Jackson v.Commonwealth, 2013-CA-0582, TO BE PUBLISHED, Affirmed

The Court of Appeals reaffirmed that a Defendant who suffers from mental illness and is arrested during a time where police officers believe that he presents a danger, or threat of danger to himself, family or others, must be taken for a mental health evaluation prior to the placing of any charges against him. 

The Court also found that the psychiatric intake nurse who conducted an initial psychiatric evaluation was not a state actor because the nurse was not present in order to assist the prosecution and not acting in concert with law enforcement. He was simply acting in response to a potential defendant who had immediate psychiatric needs.

John Landon of the Appeals Branch represented Mr. Jackson on appeal. He was represented by David Farley of the Owensboro office at trial.
Contributed by Julia Pearson

KY COA - Garcia - Man 2nd Instruction

Garcia v. Commonwealth, 2012-SC-01020, Not Published; Affirmed in Part; Reversed in Part

A complicity instruction which read that the jury could find Brittney Garcia guilty of Manslaughter Second degree if she possessed the same mens rea as her co-defendant was improper. The instruction should have told the jury to find a mens rea for Garcia of the kind of culpability required for a Manslaughter Second conviction. ON retrial, the combination principal-accomplice instruction should read, in part:

That at the time Angel Tucker was killed, Defendant (Garcia) intentionally breached her legal duty to protect Angel Tucker by failing to prevent Nickolas Staples’ use of the blunt force which killed Angel Tucker;

(4) That, regardless of whether Defendant (Garcia) intended for Angel to be killed, she at least intended that Nickolas Staples seriously physically injure her…

Roy Durham of the Appeals Branch represented Ms. Garcia on appeal.  

Contributed by Julia Pearson

Thursday, December 4, 2014

December 2014 Advocate is now online

  • HB 463 Savings
  • It Ain’t Over Till It’s Over: Litigating The Non-Capital Sentencing Hearing At Trial
  • Trial Law Notebook, 4th Edition
Available at this link
DPA December 2014 Advocate

Monday, November 24, 2014

COA - Newkirk - Other Evidence

Commonwealth v. Newkirk, 2011-CA-001819-MR.
Rendered November 21, 2014; TO BE PUBLISHED

NewKirk was indicted for burglary of an apartment.  A video surveillance system at the apartment complex captured the events.  A detective, the victim, and the apartment manager viewed the video together.  The detective observed on the tape a white male wearing blue jeans and a gray long-sleeve shirt using tools to pry open the victim’s window and gaining access to her apartment.  The video was subsequently recorded over.
The trial court ruled evidence of the video was to be excluded without specifying a specific rule.  The case was dismissed without prejudice and the Commonwealth appealed the ruling regarding evidence of the video. 
 In reviewing the case, the Court of Appeals cited KRE 1004(1), which reads:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if… [o]riginals lost or destroyed.  All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. 
The Court of Appeals concluded that pursuant to KRE 402 and 1004(1), the testimony of the detective (and anyone who viewed the videotape) is admissible “other evidence” of the contents of the destroyed videotape.   

It should be noted that this Opinion is not yet final and could be reviewed by the Supreme Court.  Despite the Court of Appeals conclusion in this case, the Supreme Court has explicitly “held that a lay witness ‘may not interpret audio or video evidence, as such testimony invades the province of the jury, whose job is to make determinations of fact based upon the evidence.’” Morgan v. Commonwealth, 421 S.W.3d 388, 392 quoting Cuzick v. Commonwealth, 276 S.W.3d 260, 265–66 (Ky.2009) (emphasis in original).  This argument should be used in response to this particular Court of Appeals Opinion.  

Contributed by Brandon Jewell 

Tuesday, November 4, 2014

In a Case Drawing National Attention, the Kentucky Supreme Court Addresses the Ethics of Waivers of Ineffective Assistance of Counsel in Plea Bargains

DPA General Counsel, B. Scott West, has published an article in the Kentucky Law Journal about the landmark Kentucky case regarding waivers of IAC claims.

United States v. Kentucky Bar Association: In a Case Drawing National Attention, the Kentucky Supreme Court Addresses the Ethics of Waivers of Ineffective Assistance of Counsel in Plea Bargains

B. Scott WestIn an opinion that is creating ripples throughout the country with respect to the ethics of criminal plea bargaining, the Kentucky Supreme Court in United States v. Kentucky Bar Association affirmed Kentucky Bar Association (“KBA”) Advisory Ethics Opinion E-435 to be a correct statement of the Kentucky Rules of Professional Conduct. That advisory opinion stated that it was a concurrent conflict of interest for a criminal defense attorney to advise a client whether to accept a plea bargain which contained a prospective waiver of a claim of ineffective assistance of counsel (IAC) against that attorney, and that likewise it was a violation of the rules for a prosecutor to induce or assist an attorney to violate the Rules of Professional Conduct by including such a waiver in an offer on a plea of guilty. [Footnotes omitted] 

For the complete article for to this link..

Tuesday, October 28, 2014

KYSC - Hughes - Jury Instructions, Age and Burdon of Proof

Hughes v. Commonwealth, 2013-SC-000291, TO BE PUBLISHED – Reversing and Remanding

The Supreme Court held in a 4-3 decision that it was reversible error to introduce a photograph of the 12-year-old female victim of a (consensual) rape. The photograph, showing her with a newborn in her arms, taken in the hospital nine months after the weekend tryst, was completely irrelevant because the defendant admitted having sex with her. The Court also strongly suggested that even though the defendant bore the burden of proof that he believed she was sixteen, that the instruction concerning the defendant's belief should not have contained the phrase: "the burden of proof that he believed she was 16 years of age is on the defendant,". The Court found the phrase that if the jury found that the defendant believed she was sixteen sufficient. 

Paul Sysol represented Mr. Hughes at trial; Gene Lewter of the Appeals Branch represented Mr. Hughes on appeal.

Contributed by Julia K. Pearson