KYSC - Murphy - Threat of Physical Force and Improper Closing

Rex Murphy v. Commonwealth, 

2015-SC-000487 (February 16, 2017) 

TO BE PUBLISHED – 

Rex Murphy met a young man in church and later became his Sunday school teacher.  After the young man turned sixteen, Rex and he began a sexual relationship.  Rex told the sixteen year old that he had special powers and could sense that he was homosexual so he would help him resist the urges.  The sexual relationship started when Rex allegedly asked the young man to put his penis in Rex’s rectum and ended when Rex’s wife almost discovered the two engaged in a sexual act.  The young man said that he did these sexual things with Rex because he was afraid that if he did not do them, that Rex would use his magic powers to erase his mind.  The Kentucky Supreme Court held that threats to use “black magic” in order to erase someone’s mind were not threats of physical force.  And, that the threats of the use of “black magic” were not temporally related to the sexual encounters; i.e. the threats did not coerce the young man into the acts.  As a result, the Kentucky Supreme Court concluded that Rex was entitled to a directed verdict on the charges of First Degree Sodomy and First Degree Sexual Abuse. 

          The Court also had strong words against the Commonwealth’s closing arguments in the case and admonished the Commonwealth not to repeat the conduct. 

Contributed by John Landon

The Marshall Project: PowerPoint Justice

The Marshall Project just published a must read article about cases reversed due to inappropriate use of PowerPoint visuals by the prosecution.  

PowerPoint Justice: When prosecutors slide around the law. 

At least 10 times in the last two years, US courts have reversed a criminal conviction because prosecutors violated the rules of fair argument with PowerPoint. In even more cases, an appellate court has taken note of such misconduct while upholding the conviction anyway or while reversing on other grounds (as in the case of Sergey Fedoruk). Legal watchdogs have long asserted that prosecutors have plenty of ways to quietly put their thumb on the scales of justice —such as concealing exculpatory evidence, eliminating jury-pool members based on race, and so on. Now they can add another category: prosecution by PowerPoint. “It’s the classic ‘A picture is worth a thousand words,’” said Eric Broman, a Seattle attorney who focuses on criminal appeals. “Until the courts say where the boundaries are, prosecutors will continue to test the boundaries.”

Read entire article

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

C-J article on Prosecutorial Misconduct in Louisville

Prosecutor's cases to be reviewed after mistrial declared in Hammond case

Judge Angela McCormick Bisig declared a mistrial in the murder trial of Dejuan Hammond, a day after Hammond's defense team complained of "prosecutorial misconduct," saying investigators have for five years had a summary of an interview with Hammond's former girlfriend that they had failed to turn over.

Defense attorneys accused Van De Rostyne of not only not turning over the evidence, but of purposefully hiding it and keeping it from attorneys because it contained exculpatory information....

[C]urrent prosecutors on the case acknowledged it appeared the evidence - a summary of an interview with Hammond's former girlfriend - had been tampered with and withheld inappropriately.

"It's one of the more disappointing experiences, to be honest with you, that I've had in the nearly 30 years I've been prosecuting here in this community," said Jim Lesousky, assistant commonwealth attorney.

Complete article 

"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