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.  

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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

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.