Thursday, October 9, 2014

C-J Op-ed: Why I'm against the death penalty

Op-Ed by Allen Ault, the dean of the College of Justice & Safety at Eastern Kentucky University.
Capital punishment is not a theoretical concept for me. I have murdered five human beings for a state.
At the time of these deaths, I was director of the Georgia Department of Corrections. Ironically, the executions were carried out in the same maximum security prison where I had previously served as warden. As a result of these experiences, I became a strong opponent of capital punishment. I am against the death penalty because:
• It does not act as a deterrent.
• It is costly (for example, California has spent more than $5 billion for 17 executions).
• It is not applied to the most egregious cases.
• The criminal justice system that administers it is extremely imperfect; over the past decade, nearly 150 death row inmates have been exonerated.
• It is illogical for the state to teach citizens not to kill by killing.
The final reason for my opposition is a particularly personal one—the heavy toll capital punishment exacts from the individuals who have to carry out the sanction.
Read the complete article 

Thursday, October 2, 2014

Report Urges Caution in Handling and Relying Upon Eyewitness Identifications in Criminal Cases




Report Urges Caution in Handling and Relying Upon Eyewitness Identifications in Criminal Cases, Recommends Best Practices for Law Enforcement and Courts

WASHINGTON -- A new report from the National Research Council recommends best practices that law enforcement agencies and courts should follow to improve the likelihood that eyewitness identifications used in criminal cases will be accurate. Science has provided an increasingly clear picture of the inherent limits in human visual perception and memory that can lead to errors, as well as the ways unintentional cues during law enforcement processes can compromise eyewitness identifications, the report says.

“Human visual perception and memory are changeable, the ability to recognize individuals is imperfect, and policies governing law enforcement procedures are not standard -- and any of these limitations can produce mistaken identifications with serious consequences,” said Thomas Albright, director of the Vision Center Laboratory at the Salk Institute for Biological Studies and co-chair of the committee that wrote the report.  The report focuses on identifications of strangers rather than of family members or others well-known to the witness.

Problems with eyewitness identifications have long been documented, and many of the cases in which DNA evidence later exonerated an innocent person involved at least one mistaken eyewitness. Research in recent decades has revealed many factors that can lead to such mistaken identifications, the report says. Conditions during the commission of the crime such as dim lighting, brief viewing times, stress, or the presence of a visually distracting element such as a gun or knife can influence people’s perceptions. Gaps in sensory input are filled by expectations that are based on an individual’s prior experiences with the world, which can bias perceptions. Studies also have shown that eyewitnesses are more likely to make mistakes when making an identification among people of another race rather than when making an identification of a person from the eyewitness’s own race.

In addition, memory is often an unfaithful record of what was perceived through sight; people’s memories are continuously evolving. As memories are processed, encoded, stored, and retrieved, many factors can compromise their fidelity to actual events. Although the individual may be unaware of it, memories are forgotten, reconstructed, updated, and distorted.


Standardized Procedures for Eyewitness IDs Needed

The law enforcement community, while operating under considerable pressure and with limited resources, is already working to improve the accuracy of eyewitness identifications, the report says. However, these efforts have not been uniform and often fall short because of insufficient training, the absence of standard operating procedures, and the presence of actions and statements that unintentionally influence eyewitnesses.

Caution should be exercised in using eyewitness identification procedures and when relying on these identifications in court, the report says.  For example, police departments should implement standardized procedures for handling lineups, including using “double-blind” processes to prevent cues and biases from creeping in. Judges should ensure, through expert testimony or jury instructions, that jurors understand factors that may affect the accuracy of an eyewitness identification in a particular case.

Many police departments have begun to use sequential lineups – in which the witnesses are shown one person or photo at a time -- instead of simultaneous lineups, which show several people or photos at once. However, additional research is needed to determine which procedure is superior, the report says.  It recommends the establishment of a National Research Initiative on Eyewitness Identification to better understand best practices for conducting lineups and photo arrays, assessing witnesses’ confidence levels, and understanding other aspects of eyewitness identifications.

“At this point, more research needs to be done to tell us whether sequential or simultaneous lineups are more effective at producing accurate identifications,” said co-chair Jed Rakoff, senior judge on the U.S. District Court for the Southern District of New York. “But there are many practices that have been validated by scientific methods and research that we already know can reduce the likelihood of erroneous identifications, and law enforcement agencies and courts should implement and follow them consistently.”


Best Practices for Law Enforcement

To increase the likelihood of accuracy in eyewitness identifications, the report recommends that law enforcement agencies use the following practices in handling eyewitness identifications.

§  Train all law enforcement officers in eyewitness identification. An eyewitness’s memory of an incident can be contaminated by a wide variety of influences, including interaction with the police. All law enforcement agencies should provide their officers and agents with training about vision and memory, practices for minimizing contamination, and effective eyewitness identification protocols. Police officers should be trained to ask open-ended questions, avoid suggestiveness, and efficiently manage scenes with multiple witnesses (for example, minimizing interactions among witnesses).
§  Implement double-blind lineup and photo array procedures. Even if a line-up administrator doesn’t verbally tell the witness which person in a lineup or photo array is the suspect, he or she could still convey the suspect’s identity through unintended body gestures, facial expressions, or other nonverbal cues. Using a double-blind procedure, in which neither the witness nor the administrator knows which person in the lineup or photo array is the suspect, can avoid this inadvertent bias.
§  Develop and use standardized witness instructions. The report recommends the development of a standard set of easily understood instructions to use when engaging a witness in an identification procedure. Witnesses should be instructed that the perpetrator may or may not be in the photo array or lineup and that, regardless of whether the witness identifies a suspect, the investigation will continue. Such instructions should be used consistently in all photo arrays and lineups and could either be pre-recorded or read aloud by administrators.
§  Document witness confidence judgments. Evidence indicates that an eyewitness’s level of confidence in their identifications at the time of trial is not a reliable predictor of their accuracy. The relationship between confidence and accuracy is likely to be strongest at the time of initial identification. Law enforcement should document the witness’s level of confidence verbatim at the time when she or he first identifies a suspect. 
§  Videotape the witness identification process. To obtain and preserve a permanent record of the conditions associated with the initial identification, the committee recommended that video recording of eyewitness identification procedures become standard practice.


Best Practices for Courts

The federal standard governing the admissibility of eyewitness testimony is set forth in the Manson vs. Braithwaite test under the Due Process Clause of the U.S. Constitution. But the test was set out in 1977 before much of the applied research on eyewitness identification had been conducted, and it includes factors that are not diagnostic of reliability. The best guidance for legal regulation of eyewitness identification evidence comes not from constitutional rulings but from the careful use and understanding of scientific evidence, the report says. It recommends best practices for judges to follow in assessing and using eyewitness testimony.

§  Conduct pre-trial judicial inquiry. Judges have an obligation to ensure the reliability of evidence presented at a trial and should make basic inquiries about eyewitness identification evidence being offered. When assessing the reliability of an eyewitness identification, it is important to know which eyewitness identification procedures the agency had in place and the degree to which they were followed. If indicators of unreliable eyewitness identifications are present, judges should follow applicable procedural law in deciding whether to exclude the identifications or use a lesser sanction. A judge could limit portions of the eyewitness’s testimony, for example, or ensure that the jury is provided with a scientific framework within which to evaluate the evidence.
§  Make juries aware of prior identifications. The accepted practice of in-court eyewitness identifications can influence juries in ways that cross-examination, expert testimony, or jury instructions are unable to counter effectively. Moreover, the passage of time since the initial identification may mean that a courtroom identification is a less accurate test of an eyewitness’s memory. Whenever the eyewitness identifies a suspect in the courtroom, juries should hear detailed information about any earlier identification, including the procedures used and the confidence expressed by the witness at that time. An eyewitness identification should not typically occur for the first time in a courtroom.
§  Use scientific framework expert testimony.  Many scientifically established aspects of eyewitness memory are counterintuitive and may defy expectations, and jurors need assistance in understanding the factors that may affect the accuracy of an identification. In many cases this information can be most effectively conveyed by expert testimony. Judges should have the discretion to allow expert testimony explaining relevant research on eyewitness memory and identifications. Local jurisdictions should make efforts to ensure that defendants receive funding to obtain access to qualified experts.
§  Use jury instructions as an alternative means to convey information. These instructions can be used as an alternative way to convey information about eyewitness identification factors the jury should consider. Jury instructions should, in clear language, explain the relevant principles, allowing judges to focus the instructions on factors relevant to the specific case. Appropriate legal organizations, together with law enforcement, prosecutors, defense counsel, and judges, should convene a body to establish model jury instructions regarding eyewitness identifications.

The study was sponsored by the Laura and John Arnold Foundation. The National Academy of Sciences, National Academy of Engineering, Institute of Medicine, and National Research Council make up the National Academies.  They are private, independent nonprofit institutions that provide science, technology, and health policy advice under a congressional charter granted to NAS in 1863.  The National Research Council is the principal operating arm of the National Academy of Sciences and the National Academy of Engineering.  For more information, visit http://national-academies.org. 


Wednesday, September 17, 2014

Kentucky Criminal Justice Council September Report



The Public Safety and Offender Accountability Act, HB 463 (2011), requires that the Kentucky Criminal Justice Council report on the implementation of the Act's provisions within the various elements of the criminal justice system and make recommendations that will further advance that Act.  The Council met Wednesday, September 17, 2014 at the Justice Cabinet in Frankfort, KY. The following agencies made presentations at the meeting detailing the impact of HB 463 on their respective areas:

 *   Department of Corrections
 *   Department of Public Advocacy
 *   Administrative Office of the Courts
 *   Kentucky Association of Criminal Defense Lawyers
 *   Kentucky Commonwealth’s Attorneys Association


Public Advocate Ed Monahan, who serves on the Council, presented recommendations and discussed the context of falling Kentucky crime rates. Monahan presented 10 Commonsense ways to reduce waste in Kentucky’s criminal justice system and reduce costs for counties and the state: Lasting and Unrealized Benefits of HB 463. The 10 ideas would produce substantial savings from

1.      Reclassifying minor misdemeanors to violations

2.      Creating "gross misdemeanor" classification for low level felonies

3.      Promoting employment/reducing recidivism by creating Class D felony expungement

4.      Reducing days in the county jail by creating "clear and convincing" standard for the pretrial release decision

5.      Modifying violent offender and PFO statutes

6.      Presuming parole for eligible low-risk offenders

7.      Providing alternative sentencing plans for flagrant non-support instead of imprisonment for felony

8.      Creating alternatives to incarceration

9.      Increase the felony theft limit from $500 to $2,000

10.  Reducing waste by limiting capital prosecutions

They are set out in detail at this link ,  Ed Monahan’s PP is found here. Monahan said, “Through the foresight of Kentucky leaders, HB 463 has brought significant savings while not adversely affecting public safety. This is what taxpayers want. However, more reforms are necessary to continue to safely reduce waste in the Kentucky criminal justice system and to fully achieve what taxpayers want. While the Kentucky crime rate declines, the Kentucky corrections population continues to be above projections at a significant and unnecessary cost to the state. There are sound measures to address the waste. They can be accomplished in 2015.”

A survey of defenders statewide on how HB 463 was being implemented had 80 responses from 29 defender offices, Pikeville, Covington, Shepherdsville, Hopkinsville, Paducah, Madisonville, Richmond, Prestonsburg, Maysville, Lexington, Glasgow, Morehead, Somerset, Burlington, LaGrange, Murray, Elizabethtown, Newport, Harlan, Stanton, Owensboro, Columbia, Frankfort, Louisville, Catlettsburg, Bowling Green, London, Louisville and Danville. The major findings were:

 1.  When it comes to reducing incarceration, the most effective solution is reducing sentences, when it can be done in a responsible way.  The reduction in sentences for drug possession is seen as the biggest success of HB 463 in achieving its goals.  All other potential solutions can be thwarted by the discretion available in different parts of the criminal justice system.

 2.  Two promising innovative ideas in HB 463, Deferred Prosecution and Bail Credit, are widely seen as failures, because of the ability of prosecutors and courts to decline to implement the ideas.  Deferred Prosecution is unavailable in large parts of the state with two-thirds of responses saying they worked with at least one prosecutor who does not allow Deferred Prosecution in any case.  More than half of respondents say that Bail Credit has either never been granted or has been extremely rare.  Less than 10% say that Bail Credit is regularly granted, as was intended by HB 463.

 3.  There is good news and bad news on pretrial release.  More than 70% responded that low risk defendants are being released on bond as intended.  Unfortunately, most did not agree that moderate risk defendants are being released in most cases, as anticipated by HB 463.  Also, by overwhelming numbers (95%), respondents said that defendants being released often have extra conditions now, including drug testing, Monitored Conditional Release, or similar programs.

 4.  Probation practices are promising.  Over 80% of public defenders surveyed said that first-time felony offenders are usually probated and almost 60% said that probation violators are generally not revoked at the first opportunity.

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

Monday, September 15, 2014

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

Friday, September 12, 2014

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 

Wednesday, September 10, 2014

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