KYCOA - Harris - Search of Mouth and Fruit of Poisonous Tree Statement

Harris v. Commonwealth COA, 1/10/14, not to be published

The Court found that the trial court erred when it did not suppress the evidence against Mr. Harris. Although the traffic stop was permissible and Mr. Harris consented to a pat-down search, the search produced no weapons or contraband. However, the officer’s hunch that Mr. Harris had something in his mouth was not proven out when Harris opened his mouth and the officer did not see anything. Harris’s statement that he had swallowed Xanax tablets were fruit of the poisonous tree and should also have been suppressed.  

Julia K. Pearson represented Mr. Harris on appeal. Robert Clark and Susie Bookser represented him at the trial level.

Contributed by Emily Rhorer

KYCOA - Willoughby - AVIS as reasonably suspicion

Willoughby v. Commonwealth - COA, 1/10/14, to be published  

An officer on routine patrol entered a vehicle’s license plate number into his MDT which was linked to the AVIS system.  The system responded with “verify proof of insurance.”  The officer stopped the vehicle and drugs were subsequently found.  The Court of Appeals found there was not enough information in the record about the reliability of the AVIS system to determine whether a “verify proof of insurance” response constituted reasonable suspicion justifying the initial stop.  On remand, the trial court is to hear and consider further evidence concerning AVIS, including, but not limited to: what the various indications provided by AVIS mean, both in theory and in practice; whether the database’s “match rate” can be definitively determined; and how (in)frequently an indication of “verify proof of insurance” indicates that a vehicle is uninsured.   

Brandon Jewell represented the client on appeal, while Ameer Mabjish represented him at the circuit court level. 

Contributed by Emily Rhorer

Restoration of voting rights for ex-felons, HB 70, moves to the floor of the KY House for consideration

Restoration of voting rights for ex-felons, HB 70, is a  measure the Department of Public Advocacy has long supported. The House Elections, Constitutional Amendments and Intergovernmental Affairs Committee overwhelmingly passed HB 70 out of Committee on Tuesday January 14, 2014. Representative Jesse Crenshaw’s bill allows the people of KY to vote on an amendment to the KY Constitution that would permit felons who have completed their sentence to have their voting rights automatically restored. Exceptions to the measure would be those who've been convicted of violent or sex-related crimes. 

Public Advocate Ed Monahan was present at the hearing to express support. Monahan said, “Public defenders know that the more involved an ex-felon is in their community the lower the recidivism. Participation in voting is a hallmark of our democracy and a critical way to connect people to their communities. We all want to promote rehabilitation and reintegration into the community. There is beginning empirical evidence that those who return from prison and vote in their communities have less recidivism. That makes common sense.” 

People who vote become more a part of the community and have a greater stake in society. Correctional professionals, including the American Probation and Parole Association, support a change in KY’s law.  In 2007, the American Probation and Parole Association formally resolved to support restoration stating, “WHEREAS, disenfranchisement laws work against the successful reentry of offenders. NOW THEREFORE BE IT RESOLVED, that the American Probation and Parole Association advocates the restoration of voting rights upon completion of an offender’s prison sentence and advocates no loss of voting rights while on community supervision.” 

House Minority Leader Jeff Hoover of Jamestown is the primary co-sponsor. He testified in support of the legislation. This 54 second cut and wrap spot is of representative Jeff Hoover explaining why he supports a constitutional amendment. 

 

KYCOA - Hall - Exigent Circumstance

Hall v. Commonwealth  - COA, 1/10/14, To Be published

Police officers had a landlord unlock the door of a suspect’s home for them.  The officers then entered the residence because they smelled marijuana when the door was opened.  The Court of Appeals held that the landlord did not have the authority to open a suspect’s door for police, and the smell of marijuana could not serve as an exigent circumstance because the officers created the exigent circumstance.   

Tom Ransdell and Kate Benward represented Hall on appeal, while private attorney Sally Ann Wasielewski represented Hall before the circuit court.  

Contributed by Emily Rhorer

What a Waste by Ernie Lewis

All I know about Anthony Thornton is what I read in the September 26, 2013 opinion by the Kentucky Supreme Court. I know from that reading that he had two prior felonies at the time that he found himself in the Metro Corrections Center, the jail in Louisville. I know that he is mentally ill, having asserted an insanity defense at trial. I know too that he found himself in the jail being transferred from one place to another. He "resisted" the efforts of Officers Darren Gibson and Laron Stoner as a result of which he was charged with third degree assault. The act was a punch. The injury was a "bruised cheek." First and second degree assault are Class A and B felonies in Kentucky and are differentiated by the degree of injury and whether the defendant is armed or not. They are by nature violent offenses leaving victims in their wake. Third degree assault, on the other hand, was passed long after the Kentucky Penal Code and was intended to protect certain classes of persons. Initially it protected police officers. Later it was expanded to included social workers, EMS workers, volunteers in fire departments--you get the picture. Third degree assault is classified as a Class D felony--the lowest level in Kentucky, carrying 1-5 years in prison. Thornton was tried and convicted of third degree assault and was sentenced by a jury (yes, we have jury sentencing here in the Commonwealth) to 1 year in prison. He would have been eligible for parole in 4 months. Except...

We also have our version of 3 strikes. It means that a person with two prior felony convictions within a particular period of time gets an enhanced penalty. One prior elevates the penalty 1 classification. Two priors elevate the penalty even more. For Thornton, the one year penalty turned into a 20 year sentence. I don't know when he will be eligible for parole because it depends upon the nature of his prior felonies. I know that the Kentucky Parole Board is not kind to persons with prior felony offenses, so he is likely to serve much of his twenty year sentence. Serve-outs are not rare.

So what? What can we learn from this rather mundane, small story that is much like what is occurring everyday throughout the American criminal justice system?

First, Officers Gibson and Stoner could have ignored Thornton's resistance. Happens everyday. Part of the job. Everytime a person whose liberty has been taken, either during an arrest or while being moved inside a jail or prison someone might resist, and a cheek might get bruised. Law enforcement has immense discretion whether to bring a charge or not. Here, because one of them got a bruised cheek, a charge was brought.

The injury was slight. If it was more than a bruised cheek, the charge would have been higher. Why didn't the officer brush this off? Why wasn't this incident dealt with as a jail disciplinary matter?

This was a felony only because Gibson was in a protected class and not because he was seriously injured. Once the charge was lodged, why didn't the prosecutor use her discretion and keep this case out of court?

Thornton was mentally ill. He asserted an insanity defense. He had two prior offenses that likely also involved his mental illness. We can speculate about failed treatment, the effect of our diminished community mental health system, or the fact that our jails are now our largest mental health institutions. The fact is that Gibson and Stoner were moving a mentally ill man in a jail and when he resisted he was charged with an offense carrying a long prison sentence.

We will pay $20,000 per year for up to 20 years for this occurrence. It could cost the taxpayers of Kentucky $400,000 to pay for all of this. We have a budget crisis in Kentucky. We are spending less and less on education, early childhood development, and other social needs. We have a criminal justice system, including the courts and public defenders, starved for resources. But we are willing to spend $400,000 because one day two jail guards were moving a man with a mental illness and he resisted.

What a waste.

Policymakers take smarter approach to crime, reducing state correctional costs while the crime rate is falling

From 1985 – 2012, there have been unambiguous divergent trends between the incarceration rates and crime rates:

•  US total crime rate        down 37.7%
• US violent crime rate     down 30.5% 
• KY total crime rate        down 5.8%
• KY violent crime rate    down 27.1%
• US Incarceration rate     up 139%
• KY Incarceration rate     up 280.7%

Here’s a picture of what that has meant in Kentucky and nationally from 1985 – 2012:

During this period, many believe that the drop in crime is primarily caused by the enormous increase in incarceration and the decrease in release. However, the “reality is far more complex…. [A]bout 25% of the decline in violent crime can be attributed to increased incarceration. While one-quarter of the crime drop is not insubstantial, we then know that most of the decline in crime — three quarters — was due to factors other than incarceration.” See:  Ryan S. King, Marc Mauer, Incarceration and Crime: A Complex Relationship (2005) at 3,4

These facts support a less costly response to crime in the context of declining crime rates. “During the last 30 years of incarceration growth, we have learned a great deal about the financial and social costs and limited effectiveness of incarceration on crime rates. While incarceration is one factor affecting crime rates, its impact is more modest than many proponents suggest, and is increasingly subject to diminishing returns. Increasing incarceration while ignoring more effective approaches will impose a heavy burden upon courts, corrections and communities, while providing a marginal impact on crime. Policymakers should assess these dynamics and adopt balanced crime control policies that provide appropriate resources and support for programming, treatment, and community support.” Id. at 8.

The good news: many policy makers are paying attention, including Kentucky policy makers. According to a Pew December 2013 Report, in the last 5  years, often with the assistance  of that Pew's Public Safety Performance Project, “the majority of states reduced both crime and imprisonment rates. The relationship between crime and incarceration is complex, but states are showing that it is possible to reduce them at the same time.” That has been what has occurred in Kentucky with the help of Pew.

There is energy from people along the entire political spectrum for commonsense criminal justice reform. In a 2003 article Three Strikes And You're Broke, Cal Thomas reflected what people are thinking, “After two decades of being ‘tough on crime’ by ‘locking them up and throwing away the key’ - to recall two of the effective political slogans of the past - the bill has come due. ….What are taxpayers getting for their money? They get a false sense of security, as if putting current criminals behind bars insures there won't be future criminals. If locking up everyone now committing crimes would eliminate crime, I'd be all for it, but new criminals are born, or made, every day. Something is wrong with the system….We do retribution well. We should be focusing on restitution.”

The December 2013 Pew Report demonstrates that “Prison decline has little impact on crime rates.”

Pew's Public Safety Performance Project works with states to advance data-driven, fiscally sound policies and practices in the criminal and juvenile justice systems that protect public safety, hold offenders accountable, and control corrections costs. Read more about Kentucky’s decline in imprisonment and crime rate in the last  5 years and how Kentucky ranks compared to other states in the December 2013  PEW Report, States Cut Both Crime and Imprisonment at this link.

Contributed by Ed Monahan