KY SC - Goncalves - Speedy Trial and other issues

Joseph Goncalves v.Com., 2010-SC-142-MR, decided 2/21/13.   

Kentucky Supreme Court.  First degree robbery and PFO I -35 years. Affirming on all issues except public defender fees and court costs.

This pro se defendant won two mistrials before losing his third trial.  In this direct appeal from the third trial, the Kentucky Supreme Court upheld the trial court’s decision to deny suppression based on its conclusion that a valid arrest warrant existed at the time of defendant’s arrest.  The Court found that 1) the prosecutor’s argument “to believe this defendant not guilty you must disbelieve, etc. etc.” did not improperly shift the burden of proof on a complicity instruction, 2) a “missing evidence” instruction cured any prejudice caused by failure to preserve a computer hard drive that contained video surveillance of the robbery, and 3) the court did not err in refusing to compel the prosecutor’s testimony regarding potential tampering with evidence.

The speedy trial analysis is worth reading. This was a claim of denial of a speedy trial after two mistrials and a total two-year delay from arrest to the third trial.  The Court stated that the rule in Kentucky requires looking at the period from the arrest to the third and final trial, treating the mistrials as delays to be considered in the analysis. The Court held most of the delays were caused by Goncalves’ motions and pre-trial demands.  Delays agreed to by both parties.  Delays caused by Goncalves’ dissatisfaction with his representation and Faretta issues were counted against Goncalves. The delay due to an absent witness (a prosecution detective) was considered neutral. Finally, the Commonwealth was not held responsible for the delay caused by the mistrials, and instead got credit for bringing the case to trial three times in a two-year period.   Goncalves’ claim of oppressive incarceration failed due to lack of evidence of prejudice beyond the suffering natural to such incarceration.

The Court ruled it was okay to deny Goncalves the right to cross-examine with the actual prior record when the prosecution did not challenge the accuracy of Goncalves own notes on prior testimony.  Even if this had been error, here it was harmless.

The Court held that Goncalves had adequate pro se pre-trial access to the trial record and was not denied adequate access to legal materials. Goncalves’ appellate counsel also had adequate access to the trial record to prepare the appellate brief despite the fact that part of the record was not provided until the day the brief was due. 

Contributed by Erin Yang

KY SC - Acosta - Insufficient Evidence

Samantha Monahan Acosta v. Com., 2010-SC-97-DG, Kentucky Supreme Court, 

Ten year sentence. Reversed and remanded for new trial. The jury instruction under which Acosta was found guilty of first-degree criminal under KRS 508.100. abuse was not supported by substantial evidence. This was unpreserved, palpable error. 

The evidence showed only that the defendant, as the child’s mother and caregiver, had the opportunity to abuse her child.  Since the Commonwealth’s proof was sufficient under at least one theory of first-degree criminal abuse (knowingly allowing another to commit the abuse), Acosta may be re-tried under the alternate theory.

Contributed by Erin Yang

A Simplified Guide To Forensic Science

ForensicScienceSimplified.org, a new website created by NFSTC and funded by the Bureau of Justice Assistance, makes it easy to understand the what, why and how of forensic science.
Developed with noted experts, this straightforward guide walks non-scientists through the key disciplines that are crucial to today’s investigative and judicial process.

The name of the website says it all. From firearms examination to video enhancement, the site provides simple, easy-to-understand explanations of 11 different forensic disciplines (with more in the works). Each section presents the principles behind the techniques, approaches for discovering and collecting evidence, and an overview of how it’s enhanced and processed once it gets back to the lab.


The Simplified Guide also clears up common misconceptions about what the science can and can’t accomplish. This free online resource is a valuable guide for police officers, attorneys, educators and the general public.

“In today’s courtroom, where jurors increasingly expect forensic evidence to be presented, it’s helpful for officers of the court and other non-scientists to have a trusted, free resource that explains the basics of forensic science in easily understood terms,” said Kevin Lothridge, CEO of NFSTC.
To make it easy and enjoyable to navigate, the site is built using “responsive” web design that automatically adjusts to your smartphone, tablet or desktop computer.

Try out the site! www.ForensicScienceSimplified.org

NIJ - Understanding What Happens in an Erroneous Conviction

From the National Institute of Justice - 

Why are innocent people wrongfully convicted in certain cases yet acquitted in others? Research is starting to uncover what happens. A new study, "Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice" compared cases where innocent defendants were wrongfully convicted to "near misses" – cases in which an innocent defendant was acquitted or had charges dismissed before trial. They found 10 significant facts that could lead to a wrongful conviction:

• A younger defendant
• A defendant with a criminal history
• A weak prosecution case
• Prosecution withheld evidence
• Lying by a non-eyewitness
• Unintentional witness misidentification
• Misinterpreting forensic evidence at trial
• A weak defense
• Defendant offered a family witness
• A "punitive" state culture

Visit the wrongful convictions webpage and study summary
Read the full study (434 pages)
Watch a video interview with lead researcher Dr. Jon Gould

NY Times - The Right to Counsel: Badly Battered at 50

 A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.” The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.

complete article

KYCOA Feb 22 - Dehart - Conflicting Advice on Parole

James Dehart v. Commonwealth, COA 2/22/13, to be published

Misadvice regarding parole eligibility is “gross misadvice” pursuant to Padilla v. Kentucky.  Mr. Dehart was entitled to withdraw his guilty plea when the record showed he was given confusing and conflicting advice on parole eligibility.

Contributed by Erin Yang 

KY COA Feb 22 - Carter - Failure to Report KRS 439.3106

Rodney Carter v. Commonwealth- COA, 2/22/13, to be published (Dixon dissents) 

 The Court vacated and remanded when it determined the trial court did not properly evaluate the statutory criteria set forth in KRS 439.3106 before revoking Appellant's probation for failing to report.  Preserved below by Paul Sysol.

Contributed by Erin Yang