Wednesday, November 18, 2015

KYCOA - Burdette - Misdemeanor Arrest


Jessica Burdette v. Commonwealth, COA, 11/6/2015, to be published.
 
This case is not final and a Motion for Discretionary Review will be filed in the Kentucky Supreme Court.
 
Following oral argument the Court found that KRS 433.236(3) is more specific and controls over the much more recently enacted KRS 431.015 which on its face does not permit peace officers to arrest shoplifters for misdemeanor shoplifting offenses not committed in their presence. “As the more specific statute, we interpret KRS 433.236 as controlling in cases of shoplifting.” Opinion at 6. “Conversely, we interpret KRS 431.015 as generally applying to other misdemeanor offenses committed in the officer’s presence.” Id.

The Opinion is troubling for several reasons. KRS 431.015 provides for exceptions for crimes committed outside of the officer’s presence such as for DUI arrests, but does not make an exception for misdemeanor shoplifting offenses. In Stogner v. Commonwealth, 35 S.W.3d 831 (Ky. App. 2000) the Court found that KRS 433.236 was more recent and more specific than the previous arrest statute KRS 431.005. However, here KRS 431.015 is unambiguous, more recent, and more specific. It is more specific in part because KRS 433.236 applies to felony and misdemeanor shoplifting offenses while KRS. 431.015 applies to misdemeanor offenses. If the General Assembly intended for shoplifting offenses to be an exception it could have easily been included in KRS 431.015, like the exception for DUI offenses. KRS 433.236(3) seems to apply well to felony shoplifting offenses but just not misdemeanor shoplifting offenses under KRS 431.015.
 
Jason Apollo Hart of the Appellate Branch represented Ms. Burdette on appeal and at oral argument. Cole Maier preserved this issue for appeal in the Circuit Court.

This case is not final and a Motion for Discretionary Review will be filed in the Kentucky Supreme Court.

Thursday, November 12, 2015

KYSC - Hill - Unanimous Verdicts


Howard Hill Anderson v. Commonwealth, 14-SC-153-MR (rendered 10/29/15) (not to be published).
 
The Court ordered a new trial in Mr. Anderson’s case due to a non-unanimous jury instruction on manufacturing methamphetamine. Mr. Anderson was indicted for manufacturing methamphetamine at his home due to the possession of two or more chemicals or two or more items of equipment. 
 
The trial court had allowed his alleged participation in an earlier manufacture [Drury incident] to be admitted as a prior bad act.  The court used a combination jury instruction that allowed Mr. Anderson to be convicted of manufacturing methamphetamine by the making of methamphetamine or by the possession of two or more chemicals or two or more items of equipment.  In closing argument, the prosecutor argued to the jury they could convict Mr. Anderson for manufacturing methamphetamine at his home or the Drury incident.
 
As the Court stated, “Up until this point in the trial, the combination jury instruction employed by the trial court in this case did not present a potential unanimous verdict problem. However, after the June 30 event was recast as a possible corpus delicti of the crime charged in the jury instructions, under the jury instruction and verdict form provided, some jurors could have believed Appellant was guilty of manufacturing methamphetamine by making meth at Drury's on June 30, while other jurors believed Appellant was guilty of manufacturing methamphetamine only because he possessed at his home on July 1 two or more of the chemicals or items of equipment needed for making meth. The creation of this possibility runs afoul of our well-delineated unanimous verdict rules.” 

          David Curlin of the Henderson office represented Mr. Anderson before the McLean Circuit Court, and Emily Rhorer represented him on direct appeal to the Kentucky Supreme Court.   

Tuesday, November 10, 2015

KYCOA- Wigginton - Use of Force


Stacey L. Wigginton- COA, 11/06/15, to be published.  Reversing.
 
Stacey L. Wigginton entered a conditional guilty plea to reckless homicide, a Class D felony, for killing her ex-husband and was sentenced to serve five years.  Pursuant to her plea, she appealed the Circuit Court’s denial of her assertion of immunity from prosecution under Kentucky Revised Statutes (KRS) 503.085.  Ms. Wigginton argued that the trial court applied the improper standard for determining whether she was justified in using physical force and that the Commonwealth failed to establish probable cause that her use of force was unlawful. 

The Commonwealth argued that the facts before the trial court as detailed in the discovery, medical records, and statements of Nancye Riley, Ms. Wigginton’s mother, all show that Stacey was not in imminent danger of “death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.”  See KRS 503.050(2). 

The Court of Appeals found, “According to Kentucky Supreme Court case law, the burden was not on Stacey to come forth with evidence to support her claim of immunity under the self-defense statute.  Rather, ‘[t]he burden [was] on the Commonwealth to establish probable cause and it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.’  Rodgers v. Commonwealth 285 S.W.3d 740, 755 (Ky. 2009).”  In addition to the evidence of record, there is a long line of cases allowing the admission of a victim’s other acts of violence, if known to the defendant, when self-defense is claimed.  Moreover, a justifiable fear leading to the use of deadly force can be based on prior assaults or threats.  Cases allowing such evidence have turned on threats made by the victim, or multiple instances of violence, or a substantial combination of the two. 

The Court of Appeals held, “Herein, the trial court was to assess the evidence in the record to determine whether the Commonwealth had met its burden that there was a substantial basis to make a probable cause conclusion that Staceey’s use of deadly force was not legally justifiable.  Absent this, Rodgers holds that the case should be dismissed.  The Court of Appeal, having reviewed the record, concluded that the Commonwealth did not meet its burden in this case because the statements of Stacey and Nancye certainly did not support the Commonwealth’s burden of probable cause that the use of deadly force was not justified. 

The Kentucky Court of Appeals reversed and remanded the case to the Graves Circuit Court.  Katie L. Benward, formally of the Appeals Branch and Roy A. Durham II of the Appeals Branch represented Ms. Wigginton on appeal.  Nathan Goodrich of the Murray office represented Ms. Wigginton in the trial court.    

Contributed by Kathleen Schmidt

Wednesday, October 21, 2015

The Advocate: November 2015

Discovery Reform in Criminal Cases in Kentucky:  A Report from the Field and the Need for Statutory Open File Discovery
by Glenn McClister

Summary:  After reviewing the importance of discovery in Constitutional context, the article reports on a survey of public defenders conducted across the Commonwealth which indicates that prosecutors and law enforcement routinely fail to follow up on the delivery of initial discovery to the defense.  Most often, prosecutors do not monitor the additional discovery which should be provided to the defense and law enforcement does not automatically provide it.  One simple solution to the problem is statutory open file discovery which would require automatic compliance with Constitutionally fundamental discovery obligations.  

Click here to see the complete edition.


Monday, October 12, 2015

KYSC - Futrell and Lord - Jury Selection & Other Errors

Futrell and Lord v. Commonwealth, 2013-SC-184 & 2013-SC-200

In a to-be-published opinion rendered on September 24, 2015, the Kentucky Supreme Court reversed Mr. Futrell and Ms. Lord’s murder convictions based on the trial court’s failure to remove for cause two jurors.  Both Juror 27 and Juror 75 acknowledged a long standing relationship with the assistant prosecutor for this case, and both had been represented by him in the past. The assistant prosecutor was representing Juror 27’s son at time of the trial.  In addition, Juror 27 knew and did business with one of the witnesses at trial, and had also been involved in reporting child abuse cases to the authorities in his role as property owner.  Juror 27 expressed increasing discomfort at the possibility of serving as a juror and directly asked the court to excuse him as a juror.  Juror 75 served on a committee with the assistant prosecutor and said he thought he would give the prosecutor’s case more weight. Due to the Juror 75’s significant association with the assistant prosecutor and his acknowledged bias, and the fact that the assistant prosecutor was representing Juror 27’s son, the trial court’s failure to remove Juror 75 and Juror 27 for cause was an abuse of discretion. 

The court also found that the trial court erred by disallowing the defense to impeach a prosecution witness with the fact that at the time of his testimony he was on pre-trial diversion following his guilty plea to burglary and theft charges.  The diversion agreement was subject to revocation, and as such may have furnished the witness a motive for favoring the prosecution.  The Court found other errors, including that there was not sufficient evidence to retry Mr. Futrell on complicity to murder; the murder instructions were improper, and that the trial court erred by allowing the defendants too few peremptory challenges.
 
Appellate attorneys  were Shannon Dupree (Jared Futrell) and Karen Maurer (Kayla Lord). Trial attorneys  were Jim Cox (Jared Futrell) and Conley Chaney (Kayla Lord). 
 
Contributed by Shannon Dupree

Tuesday, October 6, 2015

DOJ Files Statement of Interest in Kentucky School Handcuffing Case

From NJDC

The Department of Justice filed a Statement of Interest in S.R. & L.G. v. Kenton County, et al, in federal court in the Eastern District of Kentucky. The case may have implications in cases in which your juvenile clients have had contact with a School Resource Officer (SRO) that led to unreasonable seizure (i.e., handcuffing) and/or the use of excessive force. The plaintiffs in this case are two elementary school children – named in the complaint as eight-year-old third grader S.R. and nine-year-old fourth grader L.G. – who allege that an SRO violated their rights under the Fourth and 14th Amendment and Title II of the Americans with Disabilities Act (ADA) when the SRO handcuffed them in school, behind their backs, above their elbows, and at their biceps, after the children exhibited conduct arising out of their disabilities.  Beyond a discussion of the appropriateness of such a seizure, the SOI lays out the Department’s expectations of any student-SRO interaction and the legal reasoning behind them.

The Department’s SOI provides the court with a framework to assess the plaintiffs’ claim. The SOI is divided into three sections:

·         First, the Department calls for the need to appropriately delineate the roles and responsibilities of SROs and for specialized training. Specifically, the Department states that SROs should not enforce the school code of conduct or engage in routine discipline of students, but rather should only be focused on addressing and preventing serious, real, and immediate threats to the physical safety of the school and its community.

·         Second, the Department outlines the appropriate standard for evaluating the legality of the SRO’s seizure of the children under the Fourth Amendment: the court must consider whether an objectively reasonable officer would have seized the children by handcuffing them for their misbehavior, considering the totality of the circumstances.

·         Third, the Department argues that the ADA applies to interactions between SROs and children with disabilities. Accordingly, SROs must reasonably modify their practices when needed to interact with students disabilities to avoid disability-based discrimination.

The Statement of Interest is attached and the press release is available here: http://www.justice.gov/opa/pr/department-justice-files-statement-interest-kentucky-school-handcuffing-case.

Tuesday, August 25, 2015

KYCOA - Brann - Probation Revocation


Michael Brann v. Commonwealth, COA, 8/21/15, to be published.
 
The Court of Appeals vacated and remanded the Grave’s Circuit Court’s Order revoking Brann’s probation for further consideration of KRS 439.3106. The Kentucky Supreme Court granted discretionary review and remanded the case back to the Court of Appeals for further consideration in light of its decision in Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014). 
 
Brann was charged with violating the conditions of probation as follows: 1) failure to attend treatment for substance abuse; 2) falsifying a police report; and 3) failure to report to probation officer. Brann did not dispute his violations but argued that they were insufficient grounds to revoke his probation under statute. The Court of Appeals found that, “In the instant case, the trial court did not articulate that it had considered KRS 439.3106 in its order revoking Brann’s probation. Thus, we vacate the Graves Circuit Court’s order revoking Brann’s probation and remand for consideration under KRS 439.3106 in light of the Supreme Court of Kentucky’s opinion in Andrews.”
 
Jason Apollo Hart of the Appeals Branch represented Mr. Brann on Appeal and Nathan W. Goodrich preserved this issue for appeal in the circuit court.

Friday, August 21, 2015

KYSC - Hall - Gruesome Photographs


Berry Hall v.Commonwealth, 12-SC-423-MR (rendered 8/20/15)(to be published).  Reversed.
 
Mr. Hall’s two convictions for murder (guilty but mentally ill) and four convictions for first degree wanton endangerment, and his corresponding LWOP sentence, are reversed, and a new trial ordered.  The Court reversed because of the admission of 28 gruesome photographs.  They “substantially influenced the jury's decision to reject the defendant's affirmative defenses and, instead, convict him of intentional murder. The fact that Hall was found guilty but mentally ill drives home this point since the jury clearly put some stock in Hall's claims of insanity and EED; and the emotional responses flowing from the error here certainly would have influenced the final balance tilting in favor of a verdict of guilty but mentally ill rather than not guilty by reason of insanity or, more likely, a finding of guilt as to first-degree manslaughter under EED.”

            Practice tip:  One trying a case involving photos should read this opinion. The trial court must engage in three-prong KRE 403 analysis when confronted with a motion to exclude photographs.  The trial court should (1) assess probative worth of proffered evidence; (2) assess the risk of undue prejudice; and (3) evaluate whether probative value is substantially outweighed by the undue prejudice. While the Commonwealth can choose to put on its case as it sees fit, “the Commonwealth's prerogative in dictating the specific evidence used to prove its case is not without limit, and Rule 403 is perhaps the most important check on the Commonwealth in this respect.”

The analysis of probative value is not to be done in a vacuum—the trial court must consider other evidence that has or will be admitted, and evidentiary alternatives.   When considering undue prejudice, the court should consider “emotionalism”—does the evidence arouse passions and sympathies, obstructing careful thought and judgment?  The court should make findings documenting its ultimate decision.  The Court wants this done picture by picture, and for each picture the court must consider any other pictures that have already been admitted, as well as all the other evidence. 

Will Collins, Steve Goble, and Jim Gibson represented Mr. Hall before the Floyd Circuit Court, and Emily Rhorer represented him on direct appeal to the Kentucky Supreme Court.   

Sunday, July 26, 2015

Great U.S. criminal justice system should work for all - by Public Advocate Ed Monahan

In today's Lexington Herald-Leader

Great U.S. criminal justice system should work for all

Americans enjoy the greatest criminal justice system ever known to civilization. Every person is entitled to a lawyer if facing incarceration, accorded due process when liberty is at risk, and assured freedom from unwarranted searches and seizures — to name just a few of the individual liberties we enjoy in our democracy. 

....

d more here: http://www.kentucky.com/2015/07/26/3959643/great-us-criminal-justice-system.html#storylink=cpy
However, this sort of injustice is not limited to Ferguson. These are some of the cases that happened in Kentucky:
■ A poor elderly man whose fourth-degree assault was diverted but whose court costs were not waived by the court, and so he was left to ask churches for help putting food on his table.
■ A DUI defendant unable to pay $1,008 costs and fees was required to serve 20 days. Defendants not released from jail until payment of a $40 arrest fee assessed by the sheriff.
■ Poor people given "pay or stay" warrants and then jailed for failure to pay a fine without any representation by a lawyer.
■ Defendants who fail to ask for more time to pay fines/fees and are jailed for 180 days, or can't pay for their $35/day home-incarceration bracelets and are returned to jail.
■ Probation has been revoked because defendants are unable to get transportation to their drug tests or are unable to pay for them.
■ Diversion programs which carry fees of $400.
■ Courts refused to waive costs for clients with long prison sentences.

....
Our great criminal justice system is not faultless. Like Ferguson, Kentucky has unjust practices that must be remedied now for the words of our pledge of allegiance "with liberty and justice for all" to have full meaning.
Read the entire article here 

Read more here: http://www.kentucky.com/2015/07/26/3959643/great-us-criminal-justice-system.html#storylink=cpy


Read more here: http://www.kentucky.com/2015/07/26/3959643/great-us-criminal-justice-system.html#storylink=cpy

 

Thursday, July 16, 2015

Latest Advocate is online

The June 2015 Advocate is now available online including 

SUMMARY OF 2015 HEROIN BILL
by Damon Preston

SUMMARY OF 2015 CRIMINAL LAW LEGISLATION
by Damon Preston

DNA EVIDENCE: AN EXPANSION OF KORA
by Krista Dolan
TWO NEW BATSON CASES!

THE NEXT STEP: Six Common Sense Proposals to Save
While Holding Offenders Accountable and Protecting
the Public

CALL TO END PREDATORY COLLECTION PRACTICES .........14
By Ed Monahan & Dan Goyette

Click Here to download 

Friday, June 12, 2015

KYCOA - Lederer - Probation Revocation

Aaron Lederer v. Commonwealth - COA, 6/12/15, not to be published 

The Court reversed and remanded the trial courts revocation order revoking Mr. Lederer’s five year sentence for failing to report. Mr. Lederer was only a few months away from completing his probation at the time of his revocation. The Court found that the trial court did not follow “the new state of the law” pursuant to Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014), and KRS 439.3106(1) as to whether the violation constitutes a significant risk to prior victims or the community or whether the defendant can be managed in the community. Of particular interest in this case is footnote 3 where the court found the following:

The Commonwealth asserts Lederer did not properly preserve his argument that the trial court failed to make appropriate findings under KRS 439.3106. The record demonstrates that Lederer’s counsel did ask the court to consider sanctions other than revocation and incarceration based on the common nature of the violation and Lederer’s history while on probation. Even assuming this issue was not properly preserved, the trial court’s failure to consider KRS 439.3106 certainly constitutes palpable error in light of the Supreme Court’s explicit directive to do so under Andrews. See  Kentucky Rule of Criminal Procedure (RCr) 10.26.  


(emphasis added). 

The Court is explicitly saying that even if trial counsel does not object to such issues it will not be detrimental to the defendant on appeal. 

Contributed by Jason Apollo Hart 

KYCA - Stewart - Correcting PSI

Lee A. Stewart v. Commonwealth, 2013-CA-001716, rendered 5/22/15, to be published, reversing and remanding. Opinion by Chief Judge Acree, Moore and Thompson concurring.

            Because the trial judge should have allowed Stewart an opportunity to controvert alleged errors in his Presentence Investigation Report (PSI), the Court of Appeals reversed and remanded with instructions to afford Stewart “the fair opportunity, within a reasonable period of time, to controvert the findings contained in the PSI.”

It is not DOC’s job to correct a PSI, and they will not do so. It is the trial court’s job not merely to “note” errors in a PSI, but to afford an opportunity to put on evidence, and to correct the PSI accordingly.

            The proper procedure for challenging a faulty PSI is by direct appeal. A challenge to the PSI can be raised on direct appeal even if no other issue is raised.


Contributed by Susan Balliet.  

KYSC - Cave - Restitution as Jury Question

Cave v. Commonwealth, 2013-SC-000542-MR, 2015 WL 1544451 rendered 4/2/15, NOT TO BE PUBLISHED, affirming.

Mr. Cave waived any right he may have had under the Kentucky Constitution to a jury determination of restitution. But while this is an unpublished opinion, the Court suggests in this case that there may very well be a right to a jury for questions regarding restitution –in a case where the issue has been raised and preserved for appeal:

Cave is correct that Section 7 of the Kentucky Constitution and CR 38.01 guarantee the right to trial by jury in civil cases. However, Cave ignores CR 38.04, which states that the failure to demand a jury trial waives that right. Cave never demanded a jury trial on the issue of restitution; therefore, he waived any right he may have had to one. Because Cave did not seek a jury trial on the issue of restitution, we are not addressing whether he would have been entitled to a jury trial had he done so.
Cave v. Commonwealth, 2015 WL 1544451, at *10 (Ky. Apr. 2, 2015).

Practice tip:  If and when the Commonwealth demands restitution, defense counsel should cite Section 7 of the Ky. Constitution and demand a jury determination of whether restitution should be imposed at all, and if so, in what amount. This will at least preserve the jury question for appeal. Feel free to contact me for briefing on the issue.


Contributed by Susan Balliet

Thursday, June 11, 2015

KYSC - Moore- PFO reversal

Arnold Moore v. Commonwealth; Kentucky Supreme Court; June 11, 2015; To Be Published

Following a guilty verdict on manufacturing methamphetamine and possession charges, the trial proceeded to the PFO phase. Arnold had a prior felony conviction that was entered 5 years and 7 months before the date of offense in this case. The prosecutor introduced that judgement but chose not to call any witnesses. 

The Supreme Court granted directed verdict on the PFO charge and reiterated the prosecution bears the affirmative burden to prove every element of PFO beyond a reasonable doubt. The prosecutor failed to meet this burden because no evidence, whether testimony or document, created a reasonable inference that Arnold was still incarcerated or on some form of supervised release with 5 years of this offense. 

The Court reversed his PFO 1st conviction and 50 year sentence and remanded the case to impose the 15 year sentence for the underlying convictions, which reduced Arnold’s sentence by 35 years. Given the lackadaisical effort by the prosecutor that had a dramatic impact on the sentence, the Supreme Court took the opportunity to emphasize the serious nature of the PFO portion of the trial:

 “As illustrated by this case, the PFO phase of the trial is of substantial and potentially life-changing significance to all parties involved, and to the general public. Given the gravity of its consequences, we would presume that this phase of the trial would be handled with the utmost respect, not as a mere after-thought or postscript of the guilt phase. The somewhat haphazard presentation of PFO evidence that we occasionally see suggests a less than serious commitment to this vital aspect of criminal trial procedure.” 

Greg Griffith represented Arnold at trial, where he made an aggressive argument for directed verdict and followed it up with a substantive post-trial motion for acquittal. Sam Potter represented Arnold on appeal.

Contributed by Sam Potter

Monday, June 8, 2015

KYSC - Lopez - Interpreters and Statements

Jose Lopez v. Commonwealth,  Ky. Sup. Ct., 5/14/15, to be published. 

The Kentucky Supreme Court affirmed Mr. Lopez’s conviction to a total of forty (40) years unlawful transaction with a minor and incest. On appeal Mr. Lopez argued that the interpreter, employed at T.J. Sampson Hospital, was not a qualified interpreter under KRS 30A.400. KRS 30A.400(2) “provides that a statement made by a person entitled to an interpreter shall ‘only be admissible if the statement was made, offered, or elicited in the presence of a qualified interpreter.’ ” The court found that the error, even if it was error, was harmless in this case where, “Here, the evidence of Lopez’s guilt, even without his statement, was overwhelming.” 

The Court left this issue open although it noted a possible Constitutional separation of powers issue with the statute in footnote 4. The Court also addressed the question “whether the use of an interpreter alters the nature of Lopez’s statement” for hearsay purposes. All though there was no direct law on this issue in the Commonwealth, the Court adopted Fletcher v. Commonwealth, 96 S.W.855, 857 (1906) holding that an interpreter is a “mere conduit by which the testimony of the witness was conveyed to the grand jury.” The court further held that, “We recognize that in certain circumstances the trial court may be justified in excluding testimony based on a translated statement, such as when the translation is inaccurate or misleading.” 

Jason Apollo Hart of the Appeals Branch represented Mr. Lopez on appeal and Gregory K. Berry with the DPA trial office preserved the issue regarding KRS 30A.400 for appeal. 

Contributed by Jason Apollo Hart

Friday, May 29, 2015

Expunging records of non-violent felons could address workforce issues, according to Ky. Public Advocate - Kentucky Chamber

Interest in legislation to expunge the records of non-violent Class D felons is growing as more states are passing similar bills and companies, such as Wal-Mart, Target and Koch Industries, are beginning to “ban the box” on employment forms.
In Kentucky, the implementation of legislation to give individuals with certain low-level offenses the right to remove the incident from their record would have a significant economic impact, according to Kentucky Public Advocate Ed Monahan. 
“Right now, if you are convicted of a Class D felony, you pretty much have an economic death sentence. This allows for some hope that you can gain meaningful employment and some advancement in the future,” Monahan said.
Read the rest of the article on the Kentucky Chamber Blog 

Video interview with Ed Monahan on Felon Expungement 

Thursday, May 14, 2015

Kentucky’s Public Advocate and Louisville Metro’s Chief Public Defender Join National Organization’s Call for an End to Courts’ Predatory Collection Practices

(Frankfort May 14, 2015) Yesterday, May 13, 2015, the National Association for Public Defense (NAPD) issued a “Policy Statement on the Predatory Collection of Costs, Fines, and Fees in America’s Criminal Courts” (see attached), calling for an end to the assessment of excessive fines and fees to fund government operations.  NAPD called upon the judiciary to embrace their responsibility to protect the poor from being jailed when they have an inability to pay the overwhelming and continuously expanding fines and fees and oppressive monetary bonds routinely set in criminal cases.  You can read the NAPD Policy Statement in its entirety online at: http://www.publicdefenders.us/sites/default/files/NAPD_Statement_on_Predatory_Collection_Practices.pdf

The NAPD Statement stressed the need to end the current criminal justice monetary policy, which involves the collection of costs, fines, and fees in criminal courts across the United States that are predatory in nature and an economic failure. These predatory practices impact poor people in catastrophic and life-altering ways, and they are disproportionately levied against people of color.
In Ferguson MO, Thomas Harvey, Executive Director of the ArchCity Defenders and an NAPD member, referenced the distrust that develops when a community has the impression that police and courts in the region “engage in low level harassment that isn’t about public safety but instead about money and race.  At the time of Mike Brown’s killing, there were over 600,000 warrants for arrest in the St. Louis region, which has roughly 1.2 million people.  Most of these warrants are from unpaid fines for non-violent poverty offenses.  These warrants, and jailings on the failure to pay fines, act as a barrier to employment and housing. What we are seeing is the connection between the cycle of poverty and the justice system in America.”
Joining in the statement, Janene McCabe, a public defender in Colorado and a member of NAPD stated, “Colorado struggles with the same problem, where municipal courts jail citizens when they do not pay their court ordered fees and fines. The cost to the taxpayers is great and the loss of liberty to citizens means the loss of jobs, housing, and stability. The legislature recognized the courts were spending far more time and money incarcerating people for unpaid fees than they would have collected and acted to change the law. Despite the change, requiring ability to pay hearings, the problem persists in some courts today.”
Calling for change now, Tim Young, Ohio Public Defender and Chair of NAPD said, “We depend on courts to be justice courts, not revenue courts.  The presumption of innocence pretrial should not be reserved for people with money while the poor stay in jail, disproportionately impacting people of color; especially when there is no evidence that money bail has any correlation with the risk of reoffending or showing up in court. A fair and balanced system of pretrial release ought to be based on public safety, not on the person’s status as rich or poor.  In Ohio and everywhere, jails are extremely expensive and should be used only to protect public safety, not to extort money from society’s most vulnerable.”
The NAPD Statement calls for an elimination of monetary bond. The Supreme Court has ruled, Incarcerating individuals solely because of their inability to pay for their release, whether through the payment of fines, fees, or a cash bond, violates the Equal Protection Clause of the Fourteenth Amendment.[1] It wholly fails to consider the ability of the defendant to pay fines and undermines the constitutional protections against incarceration for costs and fees which are a civil debt.  It is a system that favors the wealthy who can make bail over the poor person who cannot.”
Daniel T. Goyette, Chief Public Defender in Louisville and Jefferson County, said “While our state has been characterized as a ‘front-runner’ in progressive bail policy, having abolished bail bondsmen nearly 40 years ago and replaced them with a statewide pretrial services system, our jails are still over-populated by poor people of color, and the reasons have more to do with their socio-economic status than with public safety. That is a continuing concern in Louisville and elsewhere, one which has been exacerbated here by the recent suspension of the 24-hour judicial review process in Jefferson District Court.”
On the other hand, Goyette noted that Louisville Metro Corrections has implemented several innovative programs and taken a number of steps designed to reduce overall jail population. Additionally, as examples of what he termed “a more enlightened approach to corrections in Jefferson County,” he pointed to a recent decision by the Metro Corrections Director not to take people into custody over failure to pay fees, nor to hire a collection agency to recover them.  “It makes no sense to incarcerate someone at a cost of $65 per day in order to recoup a lesser amount, particularly when there is no reasonable expectation that the person can afford to pay it in the first place,” Goyette said.  “Fortunately, leadership in our jurisdiction recognizes the folly in that.”  
Unfortunately, the leadership in other parts of the state often does not necessarily share that recognition or follow the logic of that approach. Ed Monahan, Kentucky Public Advocate, said “the judicial practices on fines and fees and pretrial release across our state are all over the place. Many judges routinely waive fines and costs for indigents and do not impose monetary bail. However, there are other judges, too many, who not only refuse to waive fines and costs, but impose money bail that poor people cannot pay. Fines should never be assessed against an indigent. Costs should not be assessed absent an ability to pay, and no poor person can be constitutionally jailed if unable to pay. A $200 cash bond is an unattainable amount of money for a poor person. Stuck in jail, too many lose their jobs, see their families go hungry, watch spouses leave them, or lose the homes in which they live. Meanwhile, a similarly charged but financially well-off person suffers none of these consequences.   A fair and balanced system of pretrial release ought to be color-blind, especially when that color is green.”
Troubling practices in Kentucky include:
§  A poor elderly man whose assault 4th was diverted but whose court costs were not waived by the court, and so he was left to ask churches for help in putting food on his table;
§  A DUI defendant unable to pay $1,008 costs and fees, and was required to serve 20 days in jail in lieu of paying;
§  Defendants not released from jail until payment of a $40 arrest fee assessed by the Sheriff;
§  Poor people given “pay or stay” warrants and then jailed for failure to pay a $500 fine;
§  Defendants who fail to ask for more time to pay fines/fees and are jailed for 180 days or until the money is paid;
§  Defendants who are unable to pay for their $35/day home-incarceration bracelets, and are returned to jail;
§  Defendants revoked because they are unable to get transportation to their drug tests or are unable to pay for them;
§  Diversion programs which carry fees of $400;
§  Courts refusing to waive costs for clients with long prison sentences;
§  Courts setting cash bonds so high that defendants can never post them (often with the intention of ensuring continued incarceration) and then continuing their arraignment for days until the defendant is willing to plead to anything, often foregoing legitimate defenses in order to get out of jail.

Criminal justice costs – including resources required to fund court operations, prisons, prosecutor offices and the right to counsel – are an essential government obligation. Assessing exorbitant fines and fees to people whose contact with the criminal justice system might be as minor as a parking ticket without consideration of the ability to pay is predatory and unconscionable. Further, threatening their liberty for failure to pay is illegal, yet it is an endemic practice in courts across the country. We join with NAPD in calling for an immediate end to these practices in Kentucky and in other states.



[1] See Tate v. Short, 401 U.S. 395, 398 (1971); Williams v. Illinois, 399 U.S. 235, 240-41 (1970); Smith v. Bennett, 365 U.S. 708, 709 (1961). 



Friday, April 24, 2015

DPA Commission Member Testifies for Dept of Defense Panel

University of Kentucky Assistant Professor of Law Cortney Lollar testified before the Department of Defense’s Judicial Proceedings Panel in Washington, D.C. on March 13. The Department of Defense established the Judicial Proceedings Panel to conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice involving adult sexual assault and related offenses.

Cortney Lollar serves on the Department of Public Advocacy Commission

For more information about Prof Lollar see this link.  For more about the Judicial Proceedings Panel on Sexual Assault in the Military see this link

Wednesday, April 1, 2015

COA - McClure - Probation Revocation

McClure, Brian v. Commonwealth - CoA, 03/13/15, REMANDING, to be published.  

McClure entered a plea of guilty to a 5 year probated sentence in December 2012.  Less than a year later, McClure’s probation and parole officer petitioned the trial court to revoke McClure’s probation.  The probation officer testified that on September 18, 2013, McClure tested positive for Suboxone, however, the probation officer did not move to revoke at that time.  A month later, McClure was caught with an empty syringe after he was told to pull his pants down after a drug test showed an abnormal temperature.  Based upon the attempt to alter a drug screen, the trial court revoked Mr. McClure’s probation.    

The Court of Appeals found that the statute requires a trial court to consider “whether a probationer’s failure to abide by a condition poses a significant risk to prior victims or the community at large” prior to revocation.  However, the Court of Appeals stated that “Neither KRS 439.3106 nor Andrews (Commonwealth v. Andrews, 448 S.W.3d 773 (Ky. 2014)) require anything more than a finding to this effect supported by the evidence of record.  The trial court complied with this requirement and it owed McClure no further explanation.  The Court of Appeals did find that “while evidence existed in the record to support whether McClure could be managed within the community”, the trial court failed to make a finding on this essential second element.  The Court of Appeals held that “[u]nder the analysis in Andrews, the trial court’s decision to revoke, in the absence of this finding, constituted an abuse of discretion, and the matter must be remanded."

The Court of Appeals concluded, “On remand, the trial court shall enter express findings as to both elements of KRS 439.3106(1). Per Andrews, once the trial court has fully considered and found as to these elements, its analysis should produce a conclusion concerning whether revocation or a lesser sanction is most appropriate, thus serving both the spirit of, and the intent behind, KRS 439.3106." 

Roy A. Durham II of the Appeals Branch represented Mr. McClure on appeal.  Lisa Whisman of the Stanton office represented Mr. McClure in the trial court.

Contributed by Roy Durham 

Thursday, March 19, 2015

Letter to the Legislature from Herion Working Group

A group of legislators including John Tilley, Denny Butler, Mik Denham, Joni Jenkins, Tom Burch and Dennis Keene, along with the Catholic Conference of Kentucky and Right on Crime have sent a letter to Kentucky Legislators urging them to work together to pass a bill this session to address heroin issues.

Read the complete letter.

Monday, March 16, 2015

NKY judge accused of misconduct - Cincinnati.com

Charges filed by the Kentucky Judicial Conduct Commission stem from an August incident in open court.

 
Campbell District Judge Gregory T. Popovich has been charged with misconduct by the Kentucky Judicial Conduct Commission, and the veteran judge faces a hearing that could lead to possible sanctions or even removal from the bench.

The charges were filed in February but not made public until Wednesday, after Popovich's response was filed.

They stem from an incident in open court in August, when Popovich was locked in a tight re-election race with Assistant County Attorney Cameron J. Blau.

On Aug. 5, while hearing motions to suppress evidence in a traffic stop case, Popovich accused Blau of improperly assisting the defense attorney, the commission said. The incident was recorded on video.

"You stated in open court that your grounds for this accusation were based, in part, on ex-parte hearsay statements made to you by attorneys who were not involved in the case at social gatherings outside of court. When Defense Counsel denied receiving any improper assistance, you accused him of lying in front of his client," the commission wrote in its notice to Popovich.

Complete Article
Judicial Conduct Commission Docket Entries

Thursday, March 12, 2015

Federal lawsuit: KY. courts discriminate against addicts - Cincinnati.com


The 38-year-old Floyd nurse has filed a federal lawsuit in Pikeville in Eastern Kentucky, claiming that the Kentucky court system is violating the Americans with Disabilities Act by prohibiting her use of medicine such as methadone, Suboxone and Vivitrol.

"It keeps going on, and it's a huge mistake," said Watson's physician, Dr. Stephen Lamb, reached by phone Tuesday.

The complaint names the Kentucky Administrative Office of the Courts – claiming the court system's Monitored Conditional Release program has wrongfully interfered with the right of individuals to be treated by Kentucky physicians.
 
Complete Story

Complaint


Friday, March 6, 2015

COA Juvenile - D.B. - Incompetent Witness

D.B. v. Commonwealth, 2013-CA-000818 (unpublished): 

The Court of Appeals reversed a juvenile sex offense adjudication finding that the juvenile court improperly admitted the child-complainant’s statements to the Children’s Advocacy Center therapist.  The Court held that under B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007) the statements of an incompetent witness are inadmissible. It was uncontested in this case that the complainant (a toddler) was incompetent to testify. The juvenile court had admitted the statements under the hearsay exception for statements made for purposes of medical treatment.

Contributed by Renee VandenWallBake

COA Juvenile - A.G. - Valid Court Order

A.G. v. Commonwealth, 2014-CA-000935 (motion to publish pending): 

The Court of Appeals reversed an order committing juvenile to the Cabinet for contempt of court finding that the court order was not a “valid court order” under MAM and KRS 610.010(11) because it was issued pre-adjudication.  The underlying charge was habitual truancy.

Contributed by Renee VandenWallBake

Wednesday, March 4, 2015

KYSC - Goodman - Double Jeopardy TBUT/Robbery

Steven Cole Goodman v.Commonwealth, 2013-SC-000813, rendered February 19, 2015, TO BE PUBLISHED, Affirmed in Part, Vacated in Part and Remanding


The Supreme Court vacated Goodman’s convictions of Theft by Unlawful Taking as he was also convicted of Robbery in relation to those victims and as theft is an element of Robbery, the dual convictions violated the Double Jeopardy clause and the lesser offense must fall.  The Court did uphold the concomitant convictions of Robbery in the First-degree and Assault in the First-degree, reasoning that each offense contained an element that the other did not, in accord with Blockburger v. United States.  Mr. Goodman’s thirty year sentence stands as the sentences assessed for the Theft convictions were to be served concurrent to the Robbery convictions.  

Contributed by Linda Horsman

Monday, March 2, 2015

KYSC - Martin - Unanimous Verdict

Joseph David Martin v. Commonwealth, Ky. Sup.  Ct., 2/19/15 Affirming in part, Reversing in part, Remanding - to be published

The Court remanded this case, and Mr. Martin’s 580 years sentence,  to the Henry Circuit Court for a new trial for numerous unpreserved unanimous verdict violations.  The Court found that both types of unanimity violations existed in this case; “one borne from indistinguishable instructions” and the “second type of unanimous-verdict violation, which arises when evidence adduced at trial presents the jury with multiple acts by the defendant that may satisfy a single general-verdict instruction.”  The Court held  “all unanimous-verdict violations constitute palpable error resulting in manifest injustice.” 

In addition there was instructional error by the trial court for failing to instruct the jury on the seventy (70) year statutory cap,  however the issue was not reviewable per Martin v. Commonwealth, 409 S.W.3d 340, 346 (Ky. 2013) (A separate case from the instant case) because the issue was not preserved. The Opinion however contained strong language regarding “the judge’s purposeful disregard of the sentencing-cap statute.” 

Jason Apollo Hart  of the Appeals Branch represented Mr. Martin on appeal. 

Friday, February 27, 2015

Two Death Sentence Reversals are Further Evidence the Kentucky Death System is Broken

Last week there were two additional reversals of Kentucky death sentences.

The United States Court of Appeals for the Sixth Circuit reversed Roger Wheeler’s death sentence. The February 20, 2015 decision recognized that a juror was improperly excused from potential jury service in violation of the right to a fair cross section of the community as required by the 6th Amendment protection.

On February 19, 2015 the Kentucky Supreme Court reversed Michael D. St. Clair’s capital conviction due to improper introduction of prejudicial 404(b) evidence of an unrelated murder in New Mexico allegedly committed by St. Clair, and improper evidence of the New Mexico victim's background.

There has to be a fix to the broken capital system in Kentucky.

Without significant changes, Kentucky’s death penalty system will continue to be inefficient and ineffective
The American Bar Association Kentucky Assessment Team examined all death sentences imposed in the Commonwealth since 1976, and found that, as of November 2011:
§  78 people have been sentenced to death
§  52 of these individuals have had a death sentence overturned on appeal by Kentucky or federal courts, or been granted clemency,
§  an error rate of  67%

Since 2012 there have been 2 additional death sentences and 2 additional reversals. There are 33 persons on Kentucky’s death row.

The Kentucky Assessment Team found that capital prosecutions occur in far more cases than result in death sentences, concluding that, “This places a significant judicial and financial burden on Commonwealth courts, prosecutors, defenders, and the criminal justice system at large, to treat many cases as death penalty cases, despite the fact that cases often result in acquittal, conviction on a lesser charge, or a last minute agreement to a sentence less than death.” 

The comprehensive 2011 program Audit recommended changes must be made to eliminate waste, abuse and error. Areas of needed reform identified by the ABA Kentucky Assessment Team audit included:
  • Inadequate Protections to Guard against Wrongful Convictions (Chapters 2, 3, 4).
  • Inconsistent and Disproportionate Capital Charging and Sentencing (Chapter 5).
  • Deficiencies in the Capital Defender System (Chapter 6).
  • Capital Juror Confusion (Chapter 10).
  • Imposition of a Death Sentence on People with Mental Retardation or Severe Mental Disability (Chapter 13).
  • Lack of Data (Chapter 12).
  • Prevention of Wrongful Convictions (Chapters 2, 3, 4, 5).
  • Improvement of Defense Services (Chapter 6).
  • Ensuring Proportionality in Capital Charging and Sentencing (Chapters 5, 7).
  • Error Correction During Post-Conviction Review (Chapters 8, 13).
  • Gubernatorial Clemency Powers (Chapter 9).
  • Improved Juror Instruction and Comprehension (Chapter 10).

Senator Robin Webb’s Senate Bill 190 implements many of the important reforms recommended by the ABA Kentucky Assessment Audit in an effort to ensure the system works. It does the following:
  1. Creates minimum standards for eyewitness identification procedures to eliminate mistaken or false identifications
  2. Directs that interviews of suspects be recorded so courts and juries receive accurate and reliable information about a defendant’s statement
  3. Prohibits the execution of a person with a severe mental illness
  4. Assures the independence and proficiency of the state crime lab
  5. Requires ongoing training and competency on death penalty issues for law enforcement, public defenders, prosecutors, corrections officers, and judges
  6. Creates a statewide database for reliable ongoing information relating to capital cases
  7. Mandates the Department of Public Advocacy to enforce standards for death penalty cases to be handled by trained competent defense attorneys

An overwhelming majority of Kentuckians support fixing the state’s death penalty system

A 2011 poll shows that a majority of Kentuckians support a suspension of executions to allow time for problems within the system to be remedied. The November 30 - December 4, 2011 survey of 405 most likely voters statewide found 62 percent support a temporary halt to executions. The support was consistent across the state: a majority of men, women, urban, suburban, and rural, Republican, Democratic, and Independent voters all favored a temporary halt to executions. The poll, with an error rate of plus or minus 4.9 percent, was conducted for the Kentucky Assessment Team by Lake Research Partners of Washington, D.C.




The two death sentence reversals in the last week are further evidence the Kentucky death system is broken. The time is now to fix the Kentucky death process or eliminate it.  There are some people who should be imprisoned for the rest of their life. Life without parole meets all appropriate needs of our society.

Contributed by Public Advocate Ed Monahan

Thursday, February 26, 2015

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT reverses ROGER L. WHEELER death penalty case

Like all potential jurors, potential jurors in Kentucky have a constitutional right to be eligible to serve on a jury when qualified to do so. Defendants like Mr. Wheeler also have a constitutional right to have such jurors eligible to serve on a jury.

The February 20, 2015 decision by United States Court ofAppeals for the Sixth Circuit  recognized these long-standing constitutional rights and vindicated the rights of potential jurors, Kentucky residents.

Specifically, the Sixth Circuit recognized that a juror was improperly excused from potential jury service in Mr. Wheeler’s case. This constitutional violation goes to the heart of “procedural fairness in administering the death penalty” and therefore required vacating Mr. Wheeler’s death sentences. The Court identified the substantial harm, “As the Supreme Court has observed, to permit the
for-cause exclusion of an otherwise-eligible juror ‘unnecessarily narrows the cross-section of venire members’ required under the Sixth Amendment and ‘stack[s] the deck against the petitioner. To execute [such a] death sentence would deprive him of his life without due process of law.’ Gray v. Mississippi, 481 U.S. 648, 658-59 (1987) (quoting Witherspoon v. Illinois, 391 U.S. 510, 523 (1968)).”

David Barron and Joe Flood represent Mr. Wheeler. The Sixth Circuit decision is found at  this link.  


David Barron said, “Mr. Wheeler has been on death row for approximately fourteen years. While this ruling takes a step towards protecting the integrity of the judicial system and corrects an unconstitutionally imposed sentence, it further calls into question the administration of the death penalty and the fairness of the process of arriving at a death sentence, for it took fourteen years for Mr. Wheeler’s constitutional rights to be vindicated and an extraordinary amount of money expended during that time that could be put to better use. For example, the money expended to seek a death sentence against Mr. Wheeler and the Commonwealth’s efforts to uphold an unconstitutional death sentence could have easily been used to for much needed expenses towards solving cold cases or educating our youth so that it is less likely they will later end up in the criminal justice system.”

Wednesday, February 25, 2015

KYSC - St.Clair - Reversing on several grounds

Michael D. St. Clair v. Commonwealth, 2012-SC-000130, rendered 2/19/15, to be published, reversing. Opinion by Justice Noble, all concurring.

In St. Clair’s third Hardin County capital kidnap trial, St. Clair was convicted of capital kidnapping and sentenced to death in 2012. The jury found three aggravators, that the victim was not released alive, that St. Clair had a prior record of conviction for a capital offense, and the kidnapping was committed during a robbery. The Kentucky Supreme Court concludes here on direct appeal that the entire case must be remanded for a possible fourth trial due to improper introduction of prejudicial 404(b) evidence of an unrelated murder in New Mexico allegedly committed by St. Clair, and improper evidence of the New Mexico victim's background.

The case in Hardin County has now been reversed on appeal twice following jury trials due to errors committed by the prosecution. Additionally, a third trial ended in a mistrial due to a prosecutor’s improper opening statement in which he alluded to an unrelated New Mexico murder. The Supreme Court attributed some of the difficulty in trying this case to choices made by the prosecution. Had the prosecution joined the kidnapping case in Hardin County with the murder case in Bullitt County, the duplicative three trials (and now possibly a fourth) in Hardin County could have been avoided and evidentiary difficulties could have been avoided. (See page 8 of the Opinion.)

The common sense, cost effective reform identified in the ABA Kentucky Assessment Team’s 2011 Report and Senator Robin Webb’s SB 190 will help fix problems in Kentucky’s troubled death penalty system.

The Opinion contains numerous evidentiary rulings, as follows:

1)      Evidence of the murder of a victim in New Mexico was reversible error because this was a kidnapping case; however evidence of the robbery and abduction of that victim was not error;

2)      Victim background evidence related to the victim in New Mexico was reversible error; “evidence of victims of other crimes beyond those being tried has no place in a criminal trial”;

3)      Proof of St. Clair’s statement that killing people was easy, and proof that St. Clair saw the killing as a joking matter and that it had excited him was improper character evidence. It should not be allowed in a retrial.

4)      Evidence that St. Clair tore up the photo of the New Mexico victim’s daughter  and commented, there’s “a bitch that’s going to grow up without a daddy” was inadmissible evidence of “despicable character”:

5)      Evidence that before his escape from jail in Oklahoma St. Clair was considered a high security risk held in maximum security was admissible because it was relevant to his motive “to do anything to avoid going back to prison” including attempted murder of a police officer.

6)      Evidence that St. Clair had at least one LWOP sentence waiting for him in Oklahoma was relevant and admissible to show his motive to attempt to kill Trooper Bennett.

7)      Evidence that St. Clair was a danger to the friends that sheltered him and that he was already wanted for murder when he arrived in Kentucky was inadmissible, but prejudice was cured by admonition.

8)      The court did not err in excluding details regarding that the aaltperp’s prior murder because it was not similar enough to the Kentucky kidnap/murder.

Wanton prosecutorial misconduct is not enough.
While the Kentucky Supreme Court acknowledges in this Opinion that there was evidence that wanton prosecutorial misconduct caused the mistrial of the second, 2009 Hardin County capital kidnap trial, the Court here holds that merely wanton prosecutorial misconduct does not meet the “high standard” for a mistrial; to win a mistrial one must prove that misconduct was intended to cause a mistrial. The defense moved for mistrial and double jeopardy did not bar the third trial.

Death penalty for kidnap upheld without jury finding of murder.
The Court fails to answer whether the trial court erred by ignoring the mandate in St. Clair v. Commonwealth, 174 S.W.3d 474 (Ky. 2005) (Hardin I) requiring a jury finding that St. Clair murdered the victim as a pre-requisite to imposing a death penalty. The Opinion—contrary to the rule in the vast majority of states—approves (in dicta) allowing the death penalty for capital kidnap regardless whether a kidnap victim dies accidentally.
St. Clair was represented at trial by Scott Drabenstadt and Justin Brown. He was represented on appeal by Susan Balliet, Sam Potter, and Robert Yang.

Contributed by Susan Balliet.  

Tuesday, February 24, 2015

Senator Webb files bill to reform Kentucky’s death penalty laws

Senator Robin L. Webb, D-Grayson, has filed a bill to reform Kentucky’s death penalty process to ensure an innocent person is not executed.

“If you have the death penalty in the commonwealth, we need to make sure it is administered in a fair and just way,” said Senator Webb, who is a practicing attorney. “There is a humanitarian aspect to this in additional to a fiscal impact to the state. We’ve had a lot of litigation over our manner of execution.”

The American Bar Association released an intensive report in December 2011outlining a myriad of problems with Kentucky’s death penalty. It cited 95 specific things that need to be fixed. Senate Bill 190 is a response to the reasoned recommendations of the ABA Assessment Team, which included two retired Kentucky Supreme Court Justices, a former chair of the House Judiciary Committee, distinguished law professors and respected bar leaders, all from Kentucky. This was the most extensive study and analysis of the manner in which the death penalty is administered in Kentucky that has been undertaken.

“The Kentucky Death Penalty Assessment Team, sponsored by the American Bar Association, spent over two years studying virtually every aspect of the administration of the death penalty in the commonwealth,” said Linda Sorenson Ewald, co-chair, Kentucky Penalty Assessment Team. “Our review led us to the inescapable conclusion that our current system is deeply flawed and in serious need of reform. The Kentucky Assessment Report was released over three years ago and, to date, not a single recommendation has been implemented. Senate Bill 190, introduced by Senator Robin Webb, is a significant step forward in addressing some of the most critical problems of our capital system. Something must be done immediately. We cannot continue to close our eyes to the unfairness of our current practices and procedures and to the risks of executing an innocent person.”

Senator Webb’s bill calls for more law enforcement training in the use of lineups, interrogations and mental health issues. It would also require judges to have training in recognizing cognitive disabilities and mental health issues.

The bill also addresses the growing use of DNA in criminal prosecutions and in exonerating inmates on death rows across the United States. SB 190 would move the state crime laboratory to an independent office in the Justice and Public Safety Cabinet, develop law enforcement training relating to biological evidence and ensure defense attorneys have equal access to DNA testing. Senator Webb said one important goal of the legislation is to make sure biological evidence is preserved.

SB 190 builds on legislation from 2013 (House Bill 41) that allowed people already convicted of a crime to get evidence in their cases tested for DNA. That process is known as post-conviction DNA testing.

It would also set minimum standards for both defense attorneys and medical examiners involved in death penalty cases. That’s in addition to creating guidelines for the exercise of prosecutorial discretion in capital cases.

“This legislation is not to abolish the death penalty,” said Senator Webb, “but rather recognizes that if we have the death penalty, it must be done right. We must make sure that any deficiencies in the administration of the death penalty in Kentucky are corrected.”

The assessment team found that from 1976 to November 2011, 78 people were sentenced to death and 52 of these individuals had a death sentence overturned on appeal or federal courts, or been granted clemency. Just last week, there were two additional cases of men on Kentucky’s death row having their convictions overturned by two separate courts. Within the period from 1976 to 2011, the assessment team found an error rate of 67 percent.

“Since 1976, there has been one involuntary execution in Kentucky while we have had most death sentences reversed because of grievous errors at the cost of hundreds of millions of dollars. Since 2011 we have Kentucky legal experts telling us through a comprehensive Program Audit that we have to make many changes to fix the broken system. Last week there were two additional reversals of Kentucky death sentences because of mortal errors. A majority of Kentuckians support a suspension of executions to allow time for problems within the system to be remedied. The time is now to reduce the error, waste, and abuse with the common sense reforms in Senator Webb’s SB 190,” said Ed Monahan, public advocate, Kentucky Department of Public Advocacy.

Others also lend their voices in support of SB 190.

“The Kentucky Coalition to Abolish the Death Penalty appreciates Senator Webb's willingness to limit the possibility of wrongful convictions in Kentucky's death sentencing process. Until full repeal is possible, and Kentucky gives up on the death penalty, as did Justice Harry Blackmun and The American Law Institute, Senate Bill 190 is a step in the right direction,” said the Rev. Patrick Delahanty, chair, Kentucky Coalition to Abolish the Death Penalty.

“In December of 2011, the Kentucky Death Penalty Assessment Report pointed to numerous ways in which the death penalty in Kentucky was broken, and called for a temporary suspension of executions unless the problems were addressed. If enacted into law, Sen. Webb's SB 190 would go a long way toward ensuring fairness and reliability in Kentucky's death penalty procedures. Unless SB 190 is passed, the problems addressed in the 2011 report will continue to call into question whether Kentucky can have a constitutional death penalty,” said Ernie Lewis, KACDL legislative agent and former Kentucky Public Advocate.


SB 190 has been assigned to the Senate Judiciary Committee.