Working with Creative Coalitions on Legislation and Issues

Defender Leaders Persuade
Public defender and assigned counsel leaders can influence criminal justice policies. We increase our public policy effectiveness when we partner with creative coalitions,  unusual supporters of a particular bill or issue. And this work with these creative coalitions or unusual supporters of a common bill or issue  creates a context that can help defender programs obtain more resources to address our workloads. That’s the thinking of more and more defender leaders as shaped by the teaching of national thinkers Mark Moore, Peter Loge and others. There is wisdom in thinking strategically. As Robert Caro, a biographer of Lyndon Johnson, said, “The nature of political genius is to find a way when no way appears obvious.”
Working with others to help clients is something we do naturally but usually with those that share our philosophy and way of thinking. Working for clients with those that think differently on many or most issues is too often not something we do. But things are changing. Various defender leaders across the nation are working with unusual supporters on a specific piece of legislation, like felony expungement, or on particular issues from Fourth Amendment  to overcriminalization and decriminalization. As these situational supporters learn more who we are, what we do and our value, they provide improved context for our funding requests.


Unusual allies
Peter Loge in an article Building Coalitions to Define and Win Issue Campaigns said, “In a traditional coalition of allies, the answer is mostly found at your office parties. In building third way coalitions, the answer is generally found among those who you would never, ever invite to your office parties. Instead of rounding up the usuals, round up the un-unusual suspects.”Benefits of political work on public policy issues Mark Moore urges defender leaders to see themselves as political leaders and in that political role advocate a criminal justice public policy agenda that will aid their funding advocacy, “One way to think about this kind of advocacy is that it is directed at increasing the power and authority of public defense systems instead of increasing their funding. Note also that part of this work will be the same kind of political work that is necessary to maintain a flow of appropriations: namely, work with legislators and committees that do the legislative work.” Mark H. Moore, ALTERNATIVE STRATEGIES FOR PUBLIC DEFENDERS AND ASSIGNED COUNSEL (April 2001).KY efforts to work with others Kentucky defender leaders have been having conversations with various groups to enlist unusual supporters to work on public policy initiatives that will reduce the cost of corrections. Adoption of these measures would provide savings that can be used for defender funding needs. The KY defender public policy proposals,  10 ways to reduce waste in Kentucky's criminal justice system are found at:  Advocate March 2014 Part 2 . The KY Chamber of Commerce has endorsed a number of these proposals out of their interest in reducing the government costs for Corrections. The July 2014 KY Chamber of Commerce’s The Leaky Bucket: Where We Stand Five Years later includes a section calling for additional criminal justice reform that would reduce KY correctional costs and states:

          Corrections

“Continue full implementation of 2011 sentencing-reform legislation to control the growth in corrections costs and carefully consider legislative efforts to increase penalties that will result in higher corrections cost. Continue this positive trend in more appropriate use of expensive corrections resources with full implementation of 2014 juvenile justice legislation. The General Assembly should also continue reviewing the Kentucky Penal Code with the goal of creating more alternatives to incarceration for low-level, non-violent crimes and focus on jail time for more serious offenses. Potential areas for review recently identified by the Kentucky Department of Public Advocacy include:

• Alternative sentencing for flagrant non-support instead of imprisonment for a felony

• Modification of the persistent felony offender statute• Increasing the dollar amount for the felony theft limit• Presuming parole for eligible low-risk offenders

• Adoption of a “clear and convincing” standard for pretrial release

• Creation of a “gross misdemeanor” classification for low-level felonies.”

DPA-NAPD Leadership 
Workload Institute At the National Association for Public Defense and the KY Department of Public Advocacy Public Defense Workload and Leadership Institute in Lexington, KY, I just listened to Ohio public defender Tim Young, NAPD Chair, and Knoxville public defender Mark Stephens, NAPD Vice-Chair,  present The keys to developing a coherent, comprehensive strategy. They talked about strategies to  educate and enlist allies, identifying resistance, implementing and adjusting a plan to advance public defender interests. Their insights are profound and helps me to set my sights higher on working with unusual allies.

COA - AKM - Right against self-incrimination during school questioning

A.K.M. v. Commonwealth, 212-CA-1190 (not yet final)(not to be published): 

AKM was interrogated twice while at school regarding an alleged theft of $20-$40 from the teacher’s lounge.  The first interrogation was conducted by the school principal while an officer, who was at the school initially on an unrelated matter, was in the next room. After AKM admitted to taking the money to the Principal, he was brought to the police officer who informed him of his Miranda rights and questioned him again, yielding a second confession. During the second interrogation AKM repeatedly stated that he did not want to tell on himself.  

The Appellant raised several issues on appeal, including that the first interrogation violated Miranda under N.C. and Welch because the purpose of the questioning was to gather evidence for a criminal prosecution, that the second confession was tainted and coerced, and that the Appellant asserted his right to remain silent during the second interrogation.  The Court of Appeals found that Miranda warnings were not necessary for the first interrogation because, distinguishing from N.C., the principal was “acting only as a principal investigating a school disciplinary matter” and there was no evidence that the principal was acting in concert with the police officers.  As to the second interrogation, the Court found that AKM was in custody at the time of the police interrogation and had invoked his right to remain silent by stating, “I don’t want to tell on myself” and that continued questioning violated the 5^th amendment.  The Court found this statement to be a clear articulation of the desire to remain silent and reversed.  Judge Thompson wrote the opinion with Dixon concurring and Caperton dissented (no written dissenting opinion).

Contributed by Renee VandenWallBake

August Advocate on the Death Penalty in Kentucky is now online

Click here to download this edition

This edition includes:

• Misunderstanding of Capital Instructions: Clarification is Possible by Marla Sandys
• ABA Recommendations for Jury Instructions in Kentucky Capital Cases: A Brief Summary by Glenn McClister
• Five Ways to Reduce Error, Waste, Abuse in Capital Prosecutions in Kentucky by Ed Monahan

ABA Article about Kentucky - “Misunderstanding of Capital Instructions: Clarification is Possible”

Dr. Marla Sandys, Associate Professor of Criminal Justice at Indiana University, recently completed, “Misunderstanding of Capital Instructions: Clarification is Possible,” an analysis of jurors’ understanding of the often-complicated and confusing jury instructions that are provided to them as they deliberate on the appropriate sentence in death penalty cases.  

Professor Sandys summarizes the major national research on juror understanding of death penalty sentencing instructions, as well as details the Kentucky-specific findings of the Capital Jury Project’s research.    Professor Sandys’ conclusions comport with the seven (7) recommendations related to jury instructions found in our 2011 Kentucky Death Penalty Assessment Report, including the state-based Assessment Team’s charge that the Commonwealth of Kentucky “should work with attorneys, judges, linguists, social scientists, psychologists and jurors to evaluate the extent to which jurors understand instructions, revise the instructions as necessary to ensure that jurors understand applicable law, and monitor the extent to which jurors understand revised instructions to permit further revision as necessary.”  Her article can be found here.

Kentucky Added to ABA National Database of Collateral Consequences of Criminal Convictions

The American Bar Association has completed its listing of the collateral consequences of a criminal conviction for the state of Kentucky.  A few years ago, the United States Congress directed the National Institute of Justice to collect and study the collateral consequences of criminal convictions in all jurisdictions throughout the United States.  The National Institute of Justice selected the American Bar Association Criminal Justice Section to perform the necessary research and analysis.  The result is the ABA National Inventory of Collateral Consequences of Conviction (NICCC).  It can be accessed at: http://www.abacollateralconsequences.org/  After agreeing to terms and conditions, one can enter the site and click on the state.  

According to the “resources” page on the website, the ABA’s information on Kentucky was taken, in part, from two law review articles on collateral consequences in Kentucky published in the Northern Kentucky Law Review in 2008.  These articles were also the starting point for the Kentucky Department of Public Advocacy’s (DPA) Collateral Consequences Manual.  DPA had researchers counter-check and update the 2008 information for the publication of its manual in 2013.  It is available at www.dpa.ky.gov.   The manual also includes a thorough chart of immigration consequences of conviction in Kentucky which was put together by experts in immigration law.  In addition to the two law review articles on Kentucky law, the ABA also conducted its own searches using complex algorithms designed to turn up collateral consequences in state statutes and administrative regulations.  The result is comprehensive and thorough.

 

When you click on Kentucky on the national map page, the site allows you to conduct searches in a number of ways.  One can select the collateral consequence of concern and then select the offenses which activate the selected consequence.  Or one can search by keywords.  The website admits that many collateral consequences may serve a protective function: keeping guns out of the hands of violent offenders or protecting the young or elderly against people with a history of abuse.  But the ABA also points out that many collateral consequences “apply across the board to people convicted of crimes, without regard to any relationship between crime and consequence, and frequently without consideration of how long ago the crime occurred or what the individual has managed to accomplish since.”

The website, like the DPA manual, is a valuable starting point for attorneys concerned about adequately informing their clients of the consequences of convictions.  Specific questions from clients will always have to be researched independently.   

Contributed by Glenn McClister

Ed Monahan: Public defenders are crucial to fair criminal justice system: Lex H-L Op-ed

Thanks to all who work for a fair, just and balanced criminal justice system, legislators, judges, prosecutors, criminal defense lawyers, the public.

Special appreciation goes to all who promote the right to counsel and the value of public defenders. The right to counsel stands above all other constitutional protections. According to the U.S. Supreme Court: "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have."

I am proud of our defenders especially as we celebrate Law Day 2014 because every day they work with courage and resolve to represent every client well.

Examples of Lexington defenders providing high value to citizens they represent and to the community include:

■ Representing an innocent 20-year-old black man wearing a hoodie who was prosecuted for robbery on flimsy evidence and without full investigation of his alibi. After a short deliberation, the jury found him not guilty. Tragically, the client spent 10 months in jail, at taxpayer expense, awaiting release.
■ Resisting an excessive five-year plea offer by representing a client overcharged by prosecutors for felony receiving stolen property and as a second-degree persistent felony offender when a jury found the person guilty of a misdemeanor.
■ Obtaining fair and proportionate punishment when a prosecutor overcharged a client with felony nonsupport. The jury of randomly selected jurors found that a $250 fine was appropriate. 

This representation by counsel is an essential part of our adversary system of justice that has as its fundamental obligation to make sure that fair process is used to achieve reliable outcomes when a person's liberty is at stake.

Tragically, there are a few people who relish the opportunity to attack public defenders. With outlandish rhetoric, these few like Ray Larson say things such as "public defenders are really public offenders."

These few misrepresent criminal justice funding data and criminal justice policy initiatives to seek an unfair advantage. Often, their claptrap is half-truths that can only be intended to mislead those listening. This misinformation is harmful to our American form of justice.

I am not being paid to misinform, misuse data or pompously spew bombast to stir things up. I have a responsibility to seek appropriate funding and reasonable workloads for our public defense system through the use of professional information.

We have a long way to go before sufficient funding is fully achieved for the Kentucky criminal justice system, especially for defenders.

Contrary to the bluster of the partisan few, the reality is that there are substantial financial benefits to society when public defense systems are properly funded.

Public defenders who are competent with manageable workloads and professional independence make sure that the rights guaranteed by our Constitution are protected for the citizen accused and that no one's liberty is taken unless they are proven guilty.

I want our criminal justice system to have proper resources. I work for that reality. I served on the American Bar Association Task Force on Preservation of the Justice System that was co-chaired by Ted Olsen and David Boies.

I have been a part of the Kentucky Bar Association effort to obtain the necessary funding for the Kentucky Court of Justice.

There are practical reasons to provide adequate funding to the whole criminal justice system: To increase timely resolution of cases; to allow each case to be fully dealt with; to increase the reliability of the results.

When staffed adequately, public defenders increase efficiencies, prevent overcharging and expensive wrongful convictions, and lower costly incarceration rates for counties and states by advocating for pretrial release and alternate or reduced sentences.

I call for more resources for our courts and prosecutors every time I have an opportunity. I do so today on Law Day 2014 as I continue to ask for adequate resources for our Kentucky public defense system.

Kentuckians deserve a criminal justice system that has the resources to attract and retain high-caliber leaders to do what is the most important work in our communities: determining whether someone's liberty or life should be taken from them.

View on Lexington Herald Leader webpage

Read more here: http://www.kentucky.com/2014/05/01/3220769/ed-monahan-public-defenders-are.html?sp=/99/349/#storylink=cpy

KYSC – R.S. v. Comm -- Juvenile Trial Practice Procedures and Juvenile Restitution

R.S. v. Commonwealth, 423 S.W.3d 178 (Ky. 2014) - R.S. was charged with complicity to second degree criminal mischief for allegedly participating in the vandalism of a car.  Though the evidence showed his involvement was minor, he was ordered to pay full restitution to the victim.

The case was appealed to the Kentucky Supreme Court upheld the trial court’s verdict.  However, in doing so the Court made several significant changes to juvenile law. 

First, the court eliminated the requirement of a motion for directed verdict in a juvenile adjudication, holding that at the close of the Commonwealth’s evidence, defense counsel should instead move for dismissal under CR 41.02(2).  The significance of the difference is that upon making such a motion the juvenile court is required to “‘weigh and evaluate the evidence,’” rather than “indulge every inference in the [Commonwealth’s] favor’” as required with a directed verdict.

Second, the court found that in juvenile cases where the court seeks to order restitution, the court must hold a restitution hearing, and make findings on the record as to why restitution is in the “best interests” of the child.  Restitution must be reasonable, balancing the interests of making the victim whole with the child’s ability to pay.  Factors to be considered include the child’s age, earning ability, employment status, the ability of parents to pay, and the existence of any legal remedies available to the victim other than restitution.

R.S. was represented at various stages of the appellate process by several former and current members of the Juvenile Post Disposition Branch, including Gail Robinson, Dawn Fesmier, and John Wampler. John Wampler argued the case before the Kentucky Supreme Court

Contributed by John Wampler