Thursday, August 28, 2014

SC - Bauer - Unanimous Verdict

Bauer v. Commonwealth – 12-SC-241 – not to be pub. – Affirming in part, reversing in part, and remanding

Bauer’s conviction for manufacturing meth must be reversed and remanded for a new trial because the court found palpable error where jury instruction violated unanimity by covering two separate instances of the offense. Molly Mattingly represented Ms. Bauer on appeal. 

Contributed by Julia Pearson

Wednesday, August 27, 2014

SC - Henderson - Important ruling on Offers of Proof

Eric Henderson v. Commonwealth - KSC, 8/21/14, to be published

KRE 404(c) requires notice to be provided only by the Commonwealth, not the defense. However, the rule governing offers of proof— KRE 103(a)(2)— just got harder to meet. 

In support of her effort to cross-examine a witness regarding his bias based on prior altercations with the defendant, counsel made the following offer of proof:

Your Honor, we're about to present a theory of defense. His
thing is that this isn't a one night thing. This is something that
had been leading up to what happened that night. We think he
has a right to put on his theory of defense if the defense is that
they, in fact, meant to set him up that night.
He just said that they got into it earlier. It's not saying that
there's any crimes committed or anything, just that they had an
       The Court held that while this may have presented the grounds for admission, KRE 103(a)(2) also requires “the substance or content of the excluded testimony.” The above offer of proof was not enough. Justice Noble dissenting. 

Seleta Griffith represented Henderson at trial; Susan Balliet represented Mr. Henderson on appeal.

Contributed by Julia Person

Tuesday, August 26, 2014

COA – Napier. v. Comm -- Palpable error to allow jury access to prosecutor's "unclean" laptop in deliberation room

Tracy Napier v. Commonwealth, COA, 2012-CA-1672, Rendered 8/15/14, reversed and remanded, to be published – 

Mr. Napier was convicted of First-Degree Assault for shooting Carl Holbrook after a confrontation on Mr. Napier’s driveway. The Court of Appeals reversed for a new trial because the trial court allowed the jury to rehear a police interview with Paul Wooten, Holbrook’s cousin, who was present when the shooting occurred. 

Palpable error occurred because the trial court allowed the jury to rehear the interview using the prosecutor’s “unclean” laptop in the privacy of the deliberation room. “Unclean” in this case means not restricting the jury from the accessing the prosecutor’s laptop data, including data related to the in-progress trial, not admonishing the jury not to access the information, and not prohibiting internet access. 

Robert Yang represented Mr. Napier on appeal.

Tuesday, August 19, 2014

Working with Creative Coalitions on Legislation and Issues

Defender Leaders Persuade
Public defender and assigned counsel leaders can influence criminal justice policies. We increase our public policy effectiveness when we partner with creative coalitions,  unusual supporters of a particular bill or issue. And this work with these creative coalitions or unusual supporters of a common bill or issue  creates a context that can help defender programs obtain more resources to address our workloads. That’s the thinking of more and more defender leaders as shaped by the teaching of national thinkers Mark Moore, Peter Loge and others. There is wisdom in thinking strategically. As Robert Caro, a biographer of Lyndon Johnson, said, “The nature of political genius is to find a way when no way appears obvious.”
Working with others to help clients is something we do naturally but usually with those that share our philosophy and way of thinking. Working for clients with those that think differently on many or most issues is too often not something we do. But things are changing. Various defender leaders across the nation are working with unusual supporters on a specific piece of legislation, like felony expungement, or on particular issues from Fourth Amendment  to overcriminalization and decriminalization. As these situational supporters learn more who we are, what we do and our value, they provide improved context for our funding requests.

Unusual allies
Peter Loge in an article Building Coalitions to Define and Win Issue Campaigns said, “In a traditional coalition of allies, the answer is mostly found at your office parties. In building third way coalitions, the answer is generally found among those who you would never, ever invite to your office parties. Instead of rounding up the usuals, round up the un-unusual suspects.”Benefits of political work on public policy issues Mark Moore urges defender leaders to see themselves as political leaders and in that political role advocate a criminal justice public policy agenda that will aid their funding advocacy, “One way to think about this kind of advocacy is that it is directed at increasing the power and authority of public defense systems instead of increasing their funding. Note also that part of this work will be the same kind of political work that is necessary to maintain a flow of appropriations: namely, work with legislators and committees that do the legislative work.” Mark H. Moore, ALTERNATIVE STRATEGIES FOR PUBLIC DEFENDERS AND ASSIGNED COUNSEL (April 2001).KY efforts to work with others Kentucky defender leaders have been having conversations with various groups to enlist unusual supporters to work on public policy initiatives that will reduce the cost of corrections. Adoption of these measures would provide savings that can be used for defender funding needs. The KY defender public policy proposals,  10 ways to reduce waste in Kentucky's criminal justice system are found at:  Advocate March 2014 Part 2 . The KY Chamber of Commerce has endorsed a number of these proposals out of their interest in reducing the government costs for Corrections. The July 2014 KY Chamber of Commerce’s The Leaky Bucket: Where We Stand Five Years later includes a section calling for additional criminal justice reform that would reduce KY correctional costs and states:

“Continue full implementation of 2011 sentencing-reform legislation to control the growth in corrections costs and carefully consider legislative efforts to increase penalties that will result in higher corrections cost. Continue this positive trend in more appropriate use of expensive corrections resources with full implementation of 2014 juvenile justice legislation. The General Assembly should also continue reviewing the Kentucky Penal Code with the goal of creating more alternatives to incarceration for low-level, non-violent crimes and focus on jail time for more serious offenses. Potential areas for review recently identified by the Kentucky Department of Public Advocacy include:
• Alternative sentencing for flagrant non-support instead of imprisonment for a felony
• Modification of the persistent felony offender statute• Increasing the dollar amount for the felony theft limit• Presuming parole for eligible low-risk offenders
• Adoption of a “clear and convincing” standard for pretrial release
• Creation of a “gross misdemeanor” classification for low-level felonies.”
DPA-NAPD Leadership 
Workload Institute At the National Association for Public Defense and the KY Department of Public Advocacy Public Defense Workload and Leadership Institute in Lexington, KY, I just listened to Ohio public defender Tim Young, NAPD Chair, and Knoxville public defender Mark Stephens, NAPD Vice-Chair,  present The keys to developing a coherent, comprehensive strategy. They talked about strategies to  educate and enlist allies, identifying resistance, implementing and adjusting a plan to advance public defender interests. Their insights are profound and helps me to set my sights higher on working with unusual allies.

Friday, August 15, 2014

COA - AKM - Right against self-incrimination during school questioning

A.K.M. v. Commonwealth, 212-CA-1190 (not yet final)(not to be published): 

AKM was interrogated twice while at school regarding an alleged theft of $20-$40 from the teacher’s lounge.  The first interrogation was conducted by the school principal while an officer, who was at the school initially on an unrelated matter, was in the next room. After AKM admitted to taking the money to the Principal, he was brought to the police officer who informed him of his Miranda rights and questioned him again, yielding a second confession. During the second interrogation AKM repeatedly stated that he did not want to tell on himself.  

The Appellant raised several issues on appeal, including that the first interrogation violated Miranda under N.C. and Welch because the purpose of the questioning was to gather evidence for a criminal prosecution, that the second confession was tainted and coerced, and that the Appellant asserted his right to remain silent during the second interrogation.  The Court of Appeals found that Miranda warnings were not necessary for the first interrogation because, distinguishing from N.C., the principal was “acting only as a principal investigating a school disciplinary matter” and there was no evidence that the principal was acting in concert with the police officers.  As to the second interrogation, the Court found that AKM was in custody at the time of the police interrogation and had invoked his right to remain silent by stating, “I don’t want to tell on myself” and that continued questioning violated the 5th amendment.  The Court found this statement to be a clear articulation of the desire to remain silent and reversed.  Judge Thompson wrote the opinion with Dixon concurring and Caperton dissented (no written dissenting opinion).

Contributed by Renee VandenWallBake