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

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.”