WDRB - Prosecutor's office focus of criticism from defense attorneys, judges in recent months

From WDRB's Sunday Edition - 

Last year, a Jefferson County prosecutor told a judge in court that there was no 911 recording to turn over as evidence in the case of three men charged with receiving stolen property.

The prosecutor assured the judge and defense attorneys that she had personally spoken with Louisville Metro police to confirm the lack of a 911 call.

Neither of those statements turned out to be true.

An investigator for the defense discovered there was, in fact, a 911 call. And the prosecutor, Shameka O'Neil, who has since resigned, had apparently not spoken with police about getting it, according to defense attorneys.

O'Neil's blunder resulted in the accused men going free. Jefferson Circuit Court Judge Barry Willett dismissed the case in June, citing the prosecution's "outrageous conduct."

This is maybe the most egregious example but not the only mistake that prosecutors in Commonwealth's Attorney Tom Wine's office have made in the last year – mistakes that have at times benefited criminal defendants

 Complete Story

"Epidemic of Brady Violations" - 9th Circuit Chief Judge

Chief Judge Writes Scathing Dissent Warning of “Epidemic Of Brady Violations” By The Justice Department by Jonathon Turley

Chief judge of the San Francisco-based 9th U.S. Circuit Court of Appeals and considered a leading libertarian, Kozinski often rules in favor of individual rights — making him a refreshing voice on the federal courts which tend not only to be highly conservative on police powers but also populated by a disproportionate number of former prosecutors. Kozinski’s dissenting opinion this week in the case of Kenneth Olsen continues that legacy and further puts the bias of the federal court in favor of prosecutors into sharp relief. Kozinski opposed the denial of an en banc rehearing with four of this colleagues in the case of Kenneth Olsen, whose trial was marked by prosecutorial abuse. Kozinski began his decision with the chilling but true observation that “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” 

complete blog post by Turley 

Brady Alert - Sniffer Dogs

A NEW TOOL for DISCOVERY:      In Florida v. Harris, 133 S.Ct. 1050, 1057 (2013) the U.S. Supreme Court recently held that trained and certified sniffer dogs can provide probable cause to search. The Court also stated that a court’s presumption that a dog's alert provides probable cause is “subject to any conflicting evidence offered.” Id. Kentucky’s 115-year-old decision in Pedigo v. Com., 103 Ky. 41, 44 S.W. 143 (Ky. 1898) also requires a proper foundation for introduction of sniffer dog evidence at trial to include 1) the dog's scent tracking record; 2) the qualifications of its handler, and 3) the dog’s training and history. Debruler v. Com., 231 S.W.3d 752, 756 (Ky., 2007).

Operative language from Florida v. Harris includes the following:

A defendant [may] cross-examin[e] the testifying officer or [introduce] his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. [and may present] evidence of the dog's (or handler's) history in the field… (“[T]he defendant can ask the handler… on the stand, about field performance, and then the court can give that answer whatever weight is appropriate”). … circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.

Florida v. Harris, 133 S. Ct. 1050, 1057-58, 185 L. Ed. 2d 61 (2013)

MOVE for DISCOVERY and PRESERVE OBJECTIONS:  Harris provides defenders with authority to explore not only the reliability of a sniffer dog’s past usage, but also the training of both the dog and the handler.  We can do this pre-trial or at trial.  Also NOTE: The 9th Circuit recently found a Brady violation where the state had knowledge of the dog’s previous mistaken alerts, and failed to disclose it to defense counsel. Aguilar v. Woodford, 09-55575, 2013 WL 3870727 (9th Cir. July 29, 2013).

Contributed by Susan Balliet