KYSC - Hacker- opening-the-door, hearsay, and confrontation

Ray Hacker v. Commonwealth, KSC 2012-SC-000269-MR, 3/20/14, Not to be Published. Reversed and remanded 

On trial for murdering his girlfriend, Hacker testified he was on probation for being a felon in possession of a handgun. On cross the Commonwealth asked about details of his arrest and read the report which described Hacker as belligerent and screaming profanities and provided evidence he owned guns and had threatened his girlfriend’s life.

The Court rejected the argument that Hacker "opened the door" to impeachment, noting it was the Commonwealth, not the defense, who "opened the door" by asking Hacker to relay his version of events on cross-examination and then using the report to impeach him. The report conveyed impermissible hearsay and violated the Confrontation Clause of the Sixth Amendment. 

Brian Barker preserved the issue at trial. Erin Yang won the appeal.

Contributed by Susan Balliet

Kentucky Open Records Act: What You Need to Know

One of the most powerful tools available to criminal defense attorneys and investigators is the Kentucky Open Records Act (KRS 61.870 through KRS 61.884, hereinafter “KORA”). KORA was signed into law in 1976 and it establishes a right of public access to public records kept by government entities. KORA provides clever defense attorneys with access to evidence that the prosecutor most likely has not seen. Evidence obtained from KORA can be invaluable at trial as substantive evidence (subject to evidentiary and discovery rules), impeachment evidence, or prior to trial for the purposes of negotiation. Examples of evidence that I have obtained through KORA requests are police agency policy and procedure manuals, police training records, and prior police suspensions for misconduct. This article is by no means meant to be an exhaustive treatise on KORA (there are over 908 reported decisions on the statute discussing KORA exemptions alone); rather, it is written as a starting point for an attorney or investigator looking to begin improving their practice through use of KORA. For a more detailed introduction, a reader should consult Kentucky Open Meetings and Open Records Laws: Statutes and Q&A, a document put out by the Legislative Research Commission and available online at http://www.lrc.ky.gov/lrcpubs/openmtgsrecords.pdf.

The first step in making a KORA request is to identify the appropriate entity that keeps the record you wish to obtain. In most cases, that will be with the law enforcement agency that keeps the records you wish to acquire. After determining which agency has custody of the record, it is worth the effort of calling the office and asking who is in charge of open records requests at that office. The particular agency may have a form that they prefer you use when making a request. While KORA authorizes two forms of records inspection (in person and over mail), in practice most agencies prefer sending records over mail, even if the person does not meet the out of county requirement for KORA by mail. See KRS 61.823(3) which tells us that if a person’s primary residence is outside of the county where the record is stored, she can request that a written copy of the record be mailed to her residence or place of business. KRS 61.872(3).

Once you have identified the proper agency and have spoken to the person in charge of answering KORA requests you have to draft the request itself. It is worth the time to look at the list of materials that are exempted from KORA production in KRS 61.878. Be specific and general in your production requests; ask for any and all records that you want that you can make a good faith argument are not excluded in KRS 61.878. Sign and send the request to the person in charge of answering them. Depending on the volume of the record and the type of record, you may want to discuss with the records custodian the medium (digital or physical) you would like to receive the records in. Generally digital will be less expensive than physical (both paper and shipping costs), but if the records are kept in a physical format, KORA does not require the records custodian to convert them to digital for your convenience. KRS 61.874(2)(a).

Once an agency receives a KORA request, it has three days, excluding weekends and legal holidays to respond to the request under KRS 61.880.  If an agency denies a request, KRS 61.880 requires the agency to state in writing the specific exception preventing release of the materials.  Once a person is denied access to records under KRS 61.880(1) she can proceed to appeal or enforce KORA in one of two ways. She can either choose to proceed against the agency in an administrative process by petitioning the Attorney General to review the decision and issue an advisory opinion, KRS 61.880(2), or she can choose to appeal the denial of the disclosure in the Circuit Court for the county that the agency sits in. See KRS 61.882. It is important to note that the first method gives the attorney multiple “bites at the apple” on appeal. After having a decision to deny disclosure affirmed by the Attorney General, an attorney can still choose to appeal that decision to the local Circuit Court within thirty days of the opinion being issued. However, an attorney may feel that a local Circuit Court is more likely to be sympathetic to her cause. If this is the case, she can bypass the KRS 61.880(2) process and proceed directly to Circuit Court under KRS 61.882.

Contributed by Brad Clark

Bill to abolish the death penalty in line with Kentuckians’ views, policy developments and fiscal commonsense

Representative David Floyd (R-Bardstown) filed HB 330 on February 4, 2014 to abolish the death penalty in the Commonwealth.

Upon the filing of the bill, John David Dyche, WDRB Contributor, observed, “Two Republican state representatives, David Floyd of Bardstown and Julie Raque Adams of Louisville, joined with six Democrats, including some of the chamber's most liberal members, to sponsor House Bill 330. They want to abolish the death penalty and replace it with life imprisonment without parole for both inmates already sentenced to death and others going forward.  … To paraphrase Victor Hugo, there is nothing so powerful as an idea whose time has come.”

Kentucky’s capital system is costly. In a March 2, 2014 op-ed, Floyd said, “Conservatives are the first to call out government programs that fail to meet intended goals and cost exorbitant amounts of money.” Prosecuting a case as a capital case greatly increases the cost even when the most common result is a sentence of less than death. In our neighboring state of Indiana, a 2010 fiscal report by the Legislative Services Agency found that the average cost of a death penalty trial was around $450,000. Some cases have cost more than $1 million. In North Carolina, it was determined that “Proceeded capital cases cost at least 3 times more than similar cases that proceeded non-capital.” FY07 Capital Trial Case Study PAC and Expert Spending in Potentially Capital Cases at the Trial Level (December 2008). Since 1976 when death was reinstated as a penalty, Kentucky has spent hundreds of millions of dollars on this capital policy with little result. Kentucky has executed three people, two of whom were volunteers.  During that same period of time, three Kentucky Governors granted clemency to five people sentenced to death.

The bill follows upon a highly critical audit of the way Kentucky administers its capital process. The American Bar Association’s Kentucky Death Penalty Assessment Team called for a suspension of executions in Kentucky until the recommendations in its December 7, 2011 audit are fully implemented. From 2009-2011, the Kentucky Death Penalty Assessment Team objectively reviewed the fairness, accuracy and reliability of Kentucky’s system for administering the death penalty. The thorough review was conducted by highly respected Kentucky criminal justice experts including two former KY Supreme Court Justices. It found major deficiencies that undermine the integrity of Kentucky’s system. The ABA Report found a disturbing error rate of approximately 60%. See: http://www.americanbar.org/groups/individual_rights/projects/death_penalty_due_process_review_project/death_penalty_assessments/kentucky.html   A March 7, 2012 op-ed by 10 former Kentucky prosecutors asked that executions be suspended until these reforms were made.

Public Defenders are appointed to represent the vast majority of those charged with a capital offense and who are currently imprisoned on Kentucky’s death row. Defenders play a critical role in insuring full due process of law is accorded to their clients.  Yet, there are individuals on death row who are severely mentally ill. Several had lawyers who were ineffective. Others had trials in which serious errors occurred that remain uncorrected. Often, capital cases in Kentucky do not just result in non-capital sentences, but even in jury findings that the defendant is not even guilty of murder.  This is an enormous waste of limited resources. Numerous examples of cases that went to trial with death as a possible sentence but resulted in acquittal, reckless homicide or manslaughter verdicts exist in our state. (See list of cases that follow at the end of press release.)

“The case against death as a possible sentence in Kentucky is mounting for good reason,” said Jerry J. Cox of Rockcastle County, Chair of the Public Advocacy Commission, the statewide public defender governing board, and President of the National Association of Criminal Defense Lawyers. Cox said, “The ABA Report identified fundamental defects in the way the death penalty is administered in our state and says those deficiencies are so serious that there should be a moratorium on executions until the defects are fixed.” Cox noted that, “The polling of Kentuckians shows they prefer a different course. Now, Representative Floyd with bi-partisan co-sponsors, fittingly calls for an end to Kentucky’s failed, costly experiment with the death penalty.  Its elimination will save the state millions of dollars, allow prosecutors, public defenders and the courts to focus more resources on other cases which will advance their timely resolution and will avoid wasteful prosecution of cases as capital that result in verdicts far less than death. I agree with John David Dyche that ‘The conservative case against the death penalty has come to Kentucky. It is a compelling one.’” 

“The error rate in Kentucky capital cases over the last 38 years is not acceptable,” said Public Advocate Ed Monahan.  “The errors are pervasive. They compel a conclusion that our system is broken.  This stunningly high rate of error shows that the system cannot get it right. None of us would put our child on an airplane that returned to the airport over 60% of the time because of defective equipment. Elimination of death as a possible sentence is a prudent policy in light of what we know today.”

The bill is in line with the views of Kentuckians and the policy developments over the last 10 years . “Widespread support for capital punishment no longer exists” in Kentucky. See Gennaro F. Vito, Attitudes Toward the Death Penalty in Kentucky: A Comparison of results – 1989, 1997, 1999, Kentucky Justice and Public Safety Bulletin, Volume 3, No. 1 (September 2001) p 3. Eighteen states do not have the death penalty. Since 2004, the death penalty has been eliminated in 6 states, New York, New Jersey, New Mexico, Illinois, Connecticut, and Maryland. See:  http://deathpenaltyinfo.org/states-and-without-death-penalty

For the last 17 years, Public Defender leaders have sought adequate resources, the implementation of national standards of practice in capital cases, and a moratorium on executions pending reforms. Defenders issued a call for a moratorium in June 1997 based on the experience in Kentucky and the ABA Call for a Moratorium, Resolution No. 107 (February 1997). Defenders have repeatedly renewed the call for a moratorium. See The Advocate, Volume 19, No. 4 (July 1997) p. 9-14; Volume 23, No. 1 (January 2001) pp. 52, 53; The Death Penalty in Kentucky: the System is Broken, KBA Bench and Bar (November 2003) pp. 8-13; DPA Press Release, November 2009; DPA Press Release, December 2011.

Examples of cases that went to trial with death as a possible sentence but resulted in acquittal, reckless homicide or manslaughter verdicts are:

• Joshua Cottrell (Hardin County, 03-CR-00465) – Convicted of Manslaughter,  2^nd Degree
• Larry Osborne (Whitley County, 98-CR-00006-001) - Acquitted on retrial after reversal on appeal.  

Fayette County Capital Prosecutions Where Defendant Was Acquitted of Murder Charge

• C.H. Brown (87-CR-00506-001) - Charged with Murder and Robbery 1; Acquitted of murder, guilty of robbery
• Mark Dixon (95-CR-00577) - Charged with Murder, Robbery 1, and 3 counts of Wanton Endangerment 1;  Acquitted on all charges.
• Carlos Cortez (99-CR-00369-002) - Charged with Murder,  Robbery 1, and Burglary 1; Acquitted on all charges

Fayette County Capital Prosecutions Where Defendant Was Convicted on Lesser Charges

• Earl Cheeks (90-CR-00049-002) - Charged with Murder and Robbery 1; Convicted of Manslaughter, 2^nd Degree; acquitted of robbery
• Myron Wilkerson (98-CR-00631-002) Charged with Murder-Non-Family-Gun; Burglary 1; Robbery 1; Guilty of Man-2 10 yrs., NG Burglary, Guilty Rob-1 20 yrs.

Jefferson County Capital Prosecutions Where Defendant Was Acquitted of Murder Charge:

• Nashawn Stoner (98-CR-02446) - Charged with Murder and two counts of Robbery, 1^st Degree Acquitted on all charges.
• Donnez Porter (97-CR-01951) - Charged with Murder (2 counts), Robbery, 1^st Degree, and Assault, 1^st Degree. Acquitted on all charges. (Motion to exclude death penalty pretrial due to prosecutorial misconduct was denied.)  

Kentucky League of Women Voteres releases analysis of amendments to felon voting rights bill

2014 ANALYSIS OF HB 70 AS AMENDED AFFECTS VOTING RIGHTS OF OVER 100,000

·  Kentucky one of four most restrictive states banning former felons from voting

·  Original provisions of HB 70 automatically restore rights to about 180,000 individuals if Constitutional amendment approved

·  HB 70 as amended requires 5-year waiting period and imposes other restrictions denying or delaying restoration of voting rights for 100,000 individuals

·  Amendments put undo burden on election officials

Frankfort, KY - The League of Women Voters of Kentucky released “An Analysis of the Impact of HB 70 and Proposed Amendments Regarding Voting Rights for Persons with Felony Convictions” today. Under House Bill 70 as originally proposed, permanent disenfranchisement would be eliminated for all but a handful of offenses and all rights would be restored at completion of sentence. Amendments introduced in the Senate last week, would substantially limit the number of individuals who would benefit from the policy change, as well as create greater administrative burdens for election officials. It is estimated that as many as 55% of the ex-felon population currently disenfranchised in Kentucky would continue to be excluded from the automatic rights restoration process if these amendments were enacted and the proposed Constitutional amendment are approved by voters. According to a 2013 League report Kentucky has the third highest rate of citizens and the second highest rate of African Americans who have lost their right to vote despite completing their full felony sentence

According to the recent analysis, of the 180,000 former felons who have completed their sentences and who would have voting rights restored under original provisions of HB 70, 100,000 would be adversely affected by these amendments. 

Kentucky’s disenfranchisement policies are harsh compared to most states. Neighboring states Illinois, Indiana and Ohio restore voting rights immediately upon release from prison, and Missouri, Tennessee and West Virginia restore rights upon completion of probation or parole supervision. None of these states impose any restrictions on the right to vote for any offense after completion of sentence.

The amendments to HB 70 impose a five-year waiting period after sentencing has been completed and disqualify anyone with more than one felony conviction from automatic restoration of voting rights. These limits would create an undue burden for County Clerks who would be obligated to certify that individuals had completed the full waiting period, a challenging task.

The League has a longstanding belief that every citizen of our Commonwealth should be protected in the right to vote. Legislative co-chair of the state League, Terry Naydan said, “The League supports HB 70 without amendments as we seek to increase citizen participation in our state’s electoral process, as most other states have done.”

 “The League was created by women who struggled many years seeking the right to vote,” said Cindy Heine, League co-president. “We believe citizens who have made a mistake should have that right reinstated once they have completed their full sentence and/or parole.”

The state League of Women Voters takes positions only after deliberation and consensus from local Leagues across the state.

“An Analysis of the Impact of HB 70 and Proposed Amendments Regarding Voting Rights for Persons with Felony Convictions,” February 2014; Felony Disenfranchisement in the Commonwealth of Kentucky: a Report of the League of Women Voters of Kentucky, January 2013 and October 2006 are available at lwvky.org/about/publications/.