Thursday, May 12, 2016

KYSC - Law Enforcement Cannot Question a Defendant Represented by Counsel

Kentucky Rejects Montejo v. Louisiana under Section 11 of the State Constitution, retains Michigan v. Jackson rule. 

In Michigan v. Jackson, 475 U.S. 625 (1986), the United States Supreme Court said that after a defendant asserts his right to counsel “at an arraignment or similar proceeding,” any waiver of that right at any subsequent police-initiated interrogation is invalid.  This was an important protection of the right to counsel.  Jackson was adopted by the Kentucky Supreme Court in Linehan v. Commonwealth, 878 S.W.2d 8 (Ky. 1994).  

In 2009,  Jackson was overturned by Montejo v. Louisiana, 556 U.S. 778 (2009). In Montejo, the Supreme Court decided that a defendant, charged with murder and represented by counsel, may nevertheless be approached by police for interrogation without the knowledge or presence of his attorney as long as the police obtain a Miranda waiver.  

In this case, the defendant entered a conditional guilty plea, urging the Kentucky Supreme Court to retain the Jackson rule on state constitutional grounds. The court reversed, stating “[a]lthough our embrace of Jackson in Linehan did not explicitly reference Section 11 of the Kentucky Constitution, we implicitly found Jackson to be in accord with the right to counsel under Section 11 and we expressly do so now.” “Moreover, maintaining and protecting the integrity of the attorney-client relationship is an important public policy of this Commonwealth.” As such, the court rejects the Montejo rule allowing law enforcement to question a defendant represented by counsel.

The trial attorney was David Perlow.  Represented on appeal by  Erin Hoffman Yang

Monday, May 2, 2016

KYCOA - Hunt - Restitution and Fees

Kendrick Hunt v. Commonwealth, COA, 4/29/16, To Be Published, 

 The COA held that Hunt is not required to pay $500 in restitution to the Pennyrile Narcotics Task Force, because that agency was not a victim of his drug-dealing. However he must pay court costs of $155 and jail fees of $2,668 within 8 months of his release, 

At sentencing Hunt was nineteen with no money and no job, facing eight years in prison and with no job prospects. The only money ever in his commissary account consisted of gifts from his parents, which he informed the court had been spent prior to sentencing. 

The COA held there was no error in assessing court costs because despite his claim he had no money in his commissary account, the trial court “did not find him to be a poor person” and did find that Hunt would be able to earn money …after his release from prison,” and the trial court said it would “work with” Hunt and grant extensions. As for the $2,668 in jail fees, the trial court determined that Hunt would be able to work while incarcerated and upon release to reimburse the jail fees.

Susan Balliet handled the appeal.