Showing posts with label Linda Horsman. Show all posts
Showing posts with label Linda Horsman. Show all posts

Tuesday, February 21, 2017

KYSC - Champion - 1st Amendment



2015-SC-000570 (February 16, 2017)
TO BE PUBLISHED – 

Dennis Champion was arrested for violating a Lexington-Fayette County Urban County Government ordinance that sought to restrict panhandling; “No person shall beg or solicit upon the public streets or at the intersection of said public streets within the urban county area.”  Despite cogent challenges to the statute in the lower courts, it was not until the Kentucky Supreme Court accepted discretionary review were Mr. Champion’s free speech rights vindicated.  

The Court held that the ordinance was unconstitutionally overbroad after applying strict scrutiny review as the ordinance sought to regulate the content of speech in public fora.  The Chief Justice, writing for the Court, eloquently held:  “The true beauty of the First Amendment is that it treats both Cicero and the vagabond as equals without prejudice to their message. Freedom of speech does not exist for us to talk about the weather; to accept this liberty is to welcome controversy and to embrace discomfort.”  The Supreme Court remanded the matter back to the Fayette District Court with instructions to dismiss the charge.

Contributed by Linda Horsman


Friday, November 4, 2016

KYCOA - Lane - Traffic Stop


Lane, Damion Montrece, 2015-CA-001698, Reversing/remanding. 11/4/2016. To be published.

Damion Lane plead guilty in a conditional plea to first-degree possession of a controlled substance, first offense, tampering with physical evidence and disregarding a stop sign.  He was sentenced to five years’ imprisonment, probated.  He appealed the denial of his motion to suppress evidence discovered after a traffic stop.
  
The Court of Appeals held that even though the officer that pulled over Lane had a K-9 unit in his cruiser, the fact that the stop was extended so as to conduct a sniff was violative as the officers had no reasonable articulable suspicion of drug-related activity. 
Analyzing the stop under the standard set out in Commonwealth v. Bucalo, 422 S.W.3d 253 (Ky. 2013), the Court found that the sniff was in no way related to the purpose for which he was stopped, having run a stop sign; did extend the traffic stop, even if for a few seconds; and that there was no reasonable articulable suspicion of drug-related activity to justify the sniff, stated factors of being in a “high-crime neighborhood” and Lane’s fumbling movements while waiting for the officer’s approach and the officer’s “hunch” something was afoot were not sufficient to create suspicion. 

Trial counsel was James Chamberlain, DPA-Hopkinsville. Linda Roberts Horsman of the Appeals Branch represented Mr. Lane on appeal.

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, February 23, 2015

KYSC - Ross - Batson/Gender application

Cole Douglas Ross v. Commonwealth, 2012-SC-000775, rendered February 19, 2015, TO BE PUBLISHED, Reversing and Remanding

The Supreme Court reversed Ross’ convictions for Murder and Arson because the trial court improperly applied the holding in Batson v. Kentucky.  After a challenge was made by the defense to the prosecution’s use of peremptory strikes against two African-American venire members, the prosecution confessed that the only reason it had used a peremptory against the African-American female juror was because she was a woman.  The defense then challenged the prosecution’s discriminatory use of peremptory strikes to remove women from the venire.  The Commonwealth’s star witness was the accused’s ex-girlfriend, a woman of questionable credibility and morals.  Fearing that women on the jury might judge the witness harshly, the prosecution confessed, their plan was to remove as many female jurors as possible.  The trial court held that the use of strikes was permissible.

On appellate review, the Kentucky Supreme Court held that the use of peremptory strikes to remove jurors of one gender was discriminatory.  The Court held that the prima facie showing of discriminatory basis of the strikes was established “on a silver platter” when the prosecutor frankly admitted that he was using strikes to remove women from the panel, apparently unaware that such practice was discriminatory.  Further, the Court held, that the prosecutor’s discussion with the venire during voir dire clearly buttressed the finding of discriminatory intent when the prosecutor questioned whether the women on the panel would be quick to judge the witness because it had been his experience that “women are sometimes harder on women.”  Because of the candid admission of attempting to remove women with the strikes, the line of questioning displaying bias and the fact that the prosecution used seven of their nine peremptory strikes to remove women from the panel, the Court was satisfied that a prima facie case of discriminatory use of strikes had been established.

Moving on to the second part of the Batson analysis, the Court was unpersuaded by the prosecution’s “gender neutral” reasons for the exercise of the strikes.  Undoubtedly tainted by the clearly sexist questioning of the venire and the admitted use of strikes in a gender-biased manner, the Court was unpersuaded by the “demeanor-based reasons” for the use of strikes against female jurors.  The prosecution candidly told the trial court that instead of choosing which jurors to strike, he had chosen which he wanted to remain on the panel and then used his peremptory strikes to remove as many of the remaining jurors as he could.  The Court held that such practice is not acceptable as they are too vague and are not capable of adequate review.  Continuing the Court’s recent line of cases wherein some insight into the reason for the strike must be articulable, that “gut instinct” strikes are not allowable and some justification for the use of the strike must be able to be articulated when challenged, the Court held that such vague reasons for the exercise of strikes can cloud discriminatory reasons and should not be found to be sufficiently neutral to survive a challenge.  The Court stated that stated reasons for use of strikes "must be clear and reasonably specific such that the
opponent of the challenge has a full and fair opportunity to demonstrate pretext in the reason given and the trial court to fulfill its duty to assess the plausibility of the reason in light of all the evidence."

Contributed by Linda Horsman


Tuesday, September 3, 2013

KYSC - Buster - State Actor & Custody for Interrogation

Buster, Kenneth – 11-SC-92 & 11-SC-93 – To Be Published – Hart County – Affirmed.

The Kentucky Supreme Court held that a Cabinet Social Worker who interviewed a prison inmate about a new investigation was a cooperative state actor for purposes of a Miranda analysis. However, given recent SCOTUS precedent in Howes v. Fields, U.S. , 132 S. Ct. 1181, 1188-89 (2012), under the totality of circumstances a majority of the Court did not believe Appellant was in custody for the interrogation. Justices Noble and Minton dissented, noting that “generally, the inmates are not in charge of when they may come and go.”

Contributed by Linda Horsman

KYSC - Sitar - Appeal v. CR 60.02



Phillip Sitar v. Commonwealth et. al.- SCT, 8/29/13, published

The Court affirmed the denial of relief by the Court of Appeals under CR 60.02, holding that the client, who was challenging jurisdiction of the trial court to grant an EPO and then DVO, should have filed a direct appeal. The Court believed the claims the client was making concerned the trial court’s erroneous actions acting within that court’s jurisdiction and were not claims of the court acting outside its jurisdiction. Kathleen Schmidt represented Mr. Sitar on appeal and Hon. Paul Sysol represented him in the trial court. 

Contributed by Linda Horsman 

Wednesday, April 3, 2013

The Impact of The R - Word - contributed by Linda Horsman


My heart broke when I heard it.  There I was, sitting there watching a Lunch ‘n Learn on my laptop, when it dropped like a bomb—the R-word.  

When I heard it casually thrown about the second time, I started to get angry.  You see, as the mother of a child with an intellectual disability, I’m a bit sensitive to the “R-word.”  Retarded.  That word.  That judgmental, dismissive, last-century word.  I expect to hear it uttered by the ignorant, I am disheartened, but not shocked, when I read it on Facebook, posted by a teenaged cousin who hasn’t been taught better, but I was floored to hear it uttered, and go uncorrected by anyone in a room full of my colleagues.  

My fingers hesitated over the keyboard—should I say something?  Should I tell them that Gov. Beshear signed HB 485 into law, which eradicated the use of the term “mental retardation” and “retarded” universally throughout the KRS, replacing it with the term “intellectual disability?”  I decided no.  If persons who I respect and admire as much as these presenters don’t realize the hurt this word causes, not only to the parents and friends of those with intellectual disabilities like me, but that it also hurts the hearts of their own clients, who would be sitting there in the courtroom while their advocate referred to them with that word.  No, if the failure to appreciate the harm this word causes is lost on some of the most empathetic, accepting, non-judgmental people I could ever hope with which to surround myself, something more than an text during a Lunch ‘N Learn needs to be done.  

My son, David, has autism and a speech disorder, but he also has a low IQ.  He’s not unintelligent—when he could barely speak many words at all, he would point to every Home Depot sign we would pass and say, “Daddy store.”  Yup, my husband spends a lot of time at Home Depot.  David can remember a promise made in the morning that chocolate chip cookies will be secured at the store while he is at school and bound off the bus in the early evening, saying “Cookies?”  I often can’t remember I need to buy aspirin from the car to the front door of Kroger.

David doesn’t learn as easily as I did, or as his brother does.  My husband had trouble in school; he has dyslexia, but back in the late 1970s, he was just considered lazy and dumb by his teachers.  He’s not at all unintelligent.  He is one of the smartest people I know, but not in a book smart way.  In a much more practical way—he has common sense.  Think about your colleagues—how many don’t have the common sense nature gave a collie?  See, there are all different kinds of smart.
Tom understands better than I what David needs to complete his homework.  I work with the small, precocious one, my second son.  He’s wicked book smart.  He also is nefarious, a tad selfish and has designs on world domination.  David, on the other hand, is the first person to comfort someone who is upset or injured.  He is stymied by meanness, hasn’t a selfish bone in his body and is really interested in religion.   My second son gets mad when I put money in the collection basket each Sunday because he thinks he would be a better use of the money.   We all have issues.

As attorneys, we have a responsibility to keep abreast of the law.  HB 485, signed in 2012, universally struck the “R-word” out of all of the Kentucky Revised Statutes.  As those who have chosen to advocate for some of the most vulnerable in our society, we must care for our clients wholly.  Taking care of their legal interests is a given, but we must also care for the person, and calling that person such a term, particularly in their presence, is simply unacceptable.  As attorneys who seek to have the law applied in a way which best protects our clients’ interests, part of our role is to educate—judges, prosecutors, police officers.  When you file a motion seeking to suppress evidence, you are instructing all parties on the law concerning search and seizure.  When you file a motion seeking expert funds, you educate the bench and bar by not using the “R-word,” but by substituting the proper term, “intellectual disability.”  Not only is this now the legally proper term, it is the humane, polite word to use.   Even when used in its “proper” context, the R-word hurts.  Especially for clients who do have an intellectual disability; they may not be able to discern the “technical” use of the term from all those taunts they heard on the playground in school.  Just don’t use it, since it doesn’t exist in the law any more, anyway.   Some of you, I can feel it now, are rolling your eyes at the “political correctness” of it all.  I’ve never much understood why good taste is derided.  I’ve never much understood why people sneer at the “political correctness” of saying “person with a disability” rather than “disabled person” (because the person comes first, not the disability.  My son isn’t an “autistic child” but a child with autism.).  I’ve never much has truck for people who are simply inconvenienced by having to change their language, when the reward on the other side is a person who no longer feels second-class, derided or shunned.   

If you would like to lend your support to eradicating the “R-word,” check out www.r-word.org/.  Like them on Facebook, follow them on Twitter.  But, more than that, once you strike the word from your vocabulary, confront others who use the term, particularly when used pejoratively.  Ensure your children are not using the term, particularly teenagers.  Most people truly mean no harm, and don’t realize how offensive this term is until told—don’t be harsh.  Don’t make them feel ashamed.  Just say, “You know, it’s really not very nice to use that word to refer to something that is lame or uncool.”  Think of your clients with low IQ.  Think of my David.  But don’t be part of the problem, be part of the solution.