COA - Hack - Search without Warrant

Donna Hack- CoA, 9/12/14, to be published. 

The Court that an uncorroborated tip was not sufficiently reliable to merit invasion of the curtilage at 2 a.m. without a warrant. Knock and talk was proper when police saw fire in the yard when a county burn ban was in effect. Even though officers saw a man run into a garage, in light of the totality of the circumstances, it was not reasonable for them to follow him in belief that contraband was in danger of being destroyed. The exigent circumstance of immediate escape was also not possible. Even if they have reasonable, articulable suspicion that criminal activity is afoot, the police may not lawfully enter a private residence without a warrant in order to initiate a Terry stop.

 Julia K. Pearson of the Appeals Branch represented Ms. Hack on appeal; Nathan Goodrich of the Murray office represented Ms. Hack in the trial court.

Contributed by Roy Durham

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

Maryland - Judge who ordered deputy to shock 'rude' pro se defendant has been taken off bench

Updated: It appears that a call by the public defender for the state of Maryland to ban a senior circuit court judge from hearing cases may have been heeded by the state’s top court.

On Friday, the Maryland Court of Appeals said there was “good cause” to remove retired Judge Robert Nalley’s authority to hear cases, the Baltimore Sun reported Wednesday afternoon.

While the appeals court didn’t refer to a complaint by state public defender Paul DeWolfe Jr., he has made headlines by calling for Nalley’s removal from the bench because the judge ordered a deputy to shock a “rude” and “non-responsive” pro se defendant who wouldn’t stop talking.

Complete Story 

Pew Article about Kentucky

In this summer's edition of Trust by The Pew Charitable Trust is an article about Kentucky's role Leading With Facts by Peter Perl.

With Pew’s help, Kentucky lawmakers found agreement on divisive issues through research-based evidence that pointed to solid solutions. From controlling prison costs to rescuing its pension fund, the Bluegrass State has become a laboratory of ideas—and a story of accomplishment.

In his 38 years as a public defender in Kentucky, Edward Monahan observed
with growing alarm—and then anger—the irrationality of a juvenile
justice system that incarcerated tens of thousands of young people for offenses
that wouldn’t even be crimes if committed by an adult: running away
from home, alcohol or tobacco use, chronic truancy, persistent tardiness,
or disobeying a judge’s order to return to school and do their homework.

Read the complete article here

SC - Bauer - Unanimous Verdict

Bauer v. Commonwealth – 12-SC-241 – not to be pub. – Affirming in part, reversing in part, and remanding

Bauer’s conviction for manufacturing meth must be reversed and remanded for a new trial because the court found palpable error where jury instruction violated unanimity by covering two separate instances of the offense. Molly Mattingly represented Ms. Bauer on appeal. 

Contributed by Julia Pearson

SC - Henderson - Important ruling on Offers of Proof

Eric Henderson v. Commonwealth - KSC, 8/21/14, to be published

KRE 404(c) requires notice to be provided only by the Commonwealth, not the defense. However, the rule governing offers of proof— KRE 103(a)(2)— just got harder to meet. 

In support of her effort to cross-examine a witness regarding his bias based on prior altercations with the defendant, counsel made the following offer of proof:

Your Honor, we're about to present a theory of defense. His

thing is that this isn't a one night thing. This is something that

had been leading up to what happened that night. We think he

has a right to put on his theory of defense if the defense is that

they, in fact, meant to set him up that night.

He just said that they got into it earlier. It's not saying that

there's any crimes committed or anything, just that they had an

altercation.

   

       The Court held that while this may have presented the grounds for admission, KRE 103(a)(2) also requires “the substance or content of the excluded testimony.” The above offer of proof was not enough. Justice Noble dissenting. 

Seleta Griffith represented Henderson at trial; Susan Balliet represented Mr. Henderson on appeal.

Contributed by Julia Person

COA – Napier. v. Comm -- Palpable error to allow jury access to prosecutor's "unclean" laptop in deliberation room

Tracy Napier v. Commonwealth, COA, 2012-CA-1672, Rendered 8/15/14, reversed and remanded, to be published – 

Mr. Napier was convicted of First-Degree Assault for shooting Carl Holbrook after a confrontation on Mr. Napier’s driveway. The Court of Appeals reversed for a new trial because the trial court allowed the jury to rehear a police interview with Paul Wooten, Holbrook’s cousin, who was present when the shooting occurred. 

Palpable error occurred because the trial court allowed the jury to rehear the interview using the prosecutor’s “unclean” laptop in the privacy of the deliberation room. “Unclean” in this case means not restricting the jury from the accessing the prosecutor’s laptop data, including data related to the in-progress trial, not admonishing the jury not to access the information, and not prohibiting internet access. 

Robert Yang represented Mr. Napier on appeal.