COA - Newkirk - Other Evidence

Commonwealth v. Newkirk, 2011-CA-001819-MR.

Rendered November 21, 2014; TO BE PUBLISHED

NewKirk was indicted for burglary of an apartment.  A video surveillance system at the apartment complex captured the events.  A detective, the victim, and the apartment manager viewed the video together.  The detective observed on the tape a white male wearing blue jeans and a gray long-sleeve shirt using tools to pry open the victim’s window and gaining access to her apartment.  The video was subsequently recorded over.
 

The trial court ruled evidence of the video was to be excluded without specifying a specific rule.  The case was dismissed without prejudice and the Commonwealth appealed the ruling regarding evidence of the video. 

             

 In reviewing the case, the Court of Appeals cited KRE 1004(1), which reads:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if… [o]riginals lost or destroyed.  All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. 

 

The Court of Appeals concluded that pursuant to KRE 402 and 1004(1), the testimony of the detective (and anyone who viewed the videotape) is admissible “other evidence” of the contents of the destroyed videotape.   

It should be noted that this Opinion is not yet final and could be reviewed by the Supreme Court.  Despite the Court of Appeals conclusion in this case, the Supreme Court has explicitly “held that a lay witness ‘may not interpret audio or video evidence, as such testimony invades the province of the jury, whose job is to make determinations of fact based upon the evidence.’” Morgan v. Commonwealth, 421 S.W.3d 388, 392 quoting Cuzick v. Commonwealth, 276 S.W.3d 260, 265–66 (Ky.2009) (emphasis in original).  This argument should be used in response to this particular Court of Appeals Opinion.  

Contributed by Brandon Jewell 

In a Case Drawing National Attention, the Kentucky Supreme Court Addresses the Ethics of Waivers of Ineffective Assistance of Counsel in Plea Bargains

DPA General Counsel, B. Scott West, has published an article in the Kentucky Law Journal about the landmark Kentucky case regarding waivers of IAC claims.

United States v. Kentucky Bar Association: In a Case Drawing National Attention, the Kentucky Supreme Court Addresses the Ethics of Waivers of Ineffective Assistance of Counsel in Plea Bargains

In an opinion that is creating ripples throughout the country with respect to the ethics of criminal plea bargaining, the Kentucky Supreme Court in United States v. Kentucky Bar Association affirmed Kentucky Bar Association (“KBA”) Advisory Ethics Opinion E-435 to be a correct statement of the Kentucky Rules of Professional Conduct. That advisory opinion stated that it was a concurrent conflict of interest for a criminal defense attorney to advise a client whether to accept a plea bargain which contained a prospective waiver of a claim of ineffective assistance of counsel (IAC) against that attorney, and that likewise it was a violation of the rules for a prosecutor to induce or assist an attorney to violate the Rules of Professional Conduct by including such a waiver in an offer on a plea of guilty. [Footnotes omitted] 

For the complete article for to this link..

KYSC - Hughes - Jury Instructions, Age and Burdon of Proof

Hughes v. Commonwealth, 2013-SC-000291, TO BE PUBLISHED – Reversing and Remanding

The Supreme Court held in a 4-3 decision that it was reversible error to introduce a photograph of the 12-year-old female victim of a (consensual) rape. The photograph, showing her with a newborn in her arms, taken in the hospital nine months after the weekend tryst, was completely irrelevant because the defendant admitted having sex with her. The Court also strongly suggested that even though the defendant bore the burden of proof that he believed she was sixteen, that the instruction concerning the defendant's belief should not have contained the phrase: "the burden of proof that he believed she was 16 years of age is on the defendant,". The Court found the phrase that if the jury found that the defendant believed she was sixteen sufficient. 

Paul Sysol represented Mr. Hughes at trial; Gene Lewter of the Appeals Branch represented Mr. Hughes on appeal.

Contributed by Julia K. Pearson

District judge quits 'Deadbeat' reality show - Louisville C-J

One of the two judges who star in the local reality TV show "Deadbeat," which has drawn criticism for exploiting defendants, says she will no longer allow it to be taped in her courtroom.

In an email to The Courier-Journal editorial board, Jefferson District Judge Erica Lee Williams cited concerns raised by Chief Justice John D. Minton Jr.

Minton issued a statement this week saying that using courtroom footage for the "purposes of entertainment is beneath the dignity of the courts" and that he would discourage judges from participating in anything that "reflects poorly on the court system and could compromise their ability to ensure a fair and impartial experience to those who come before the courts."

Complete Louisville Courier-Journal article and related coverage

The Special Edition of the Advocate is Now Available: The Kentucky Penal Code

Click here to download October 2014 Advocate

KY’s  Penal Code that was a model when enacted but now at the age of  40 is highly degraded. The history of the Code and its degradation is important context for what is needed  to bring the Code back to its Model status. Former Public Advocate Ernie Lewis and Jefferson County Public Defender Dan Goyette have laid out the long tortuous history of the Code in this issue of The Advocate. To demonstrate the longstanding need for reform, the 1991 charge by the late Frank Haddad Jr. calling for reform has been reprinted in this issue. This issue also includes information on the current growing DOC population especially the over 8,000 inmates incarcerated for PFO and violent offenses.

Significantly, the Kentucky Bar Association Criminal Law Section and the University of Louisville Louis D. Brandeis School of Law are sponsoring the Third Annual Forum on Criminal Law Reform in the Commonwealth of Kentucky on Friday, November 7, 2014.  It features Paul Robinson, the nation’s leading penal code authority, the chairs of Kentucky’s Judiciary Committees and panelists directly involved in efforts to reform the KY Code. The forum will be held from 11:45 a.m.-5:00 p.m. in the School of Law's Allen Courtroom. The program has been accredited for 3.50 CLE credits in Kentucky. Admission to the forum is free, but space is limited.  Registrations will be accepted on a first come, first served basis until the seminar capacity is reached.  A registration form with the full agenda is available on the Criminal Law Section's website.  To register, you must download the paper form and return it via email to lalvey@kybar.org, FAX to Lori Alvey at (502) 564-3225 or mail to 514 West Main Street, Frankfort, KY 40601.  The registration deadline is Friday, October 31. For any questions, contact:

Lori J. Alvey

Program & Publications Attorney/Section Liaison

Kentucky Bar Association

514 W. Main St.

Frankfort, KY  40601

(502) 564-3795 ext. 253

(502) 564-3225 FAX

 

October 2014 Advocate

WDRB: Bullitt County "debtor's prison" raises constitutional questions

 "Sit or Pay" rulings challenged

SHEPHERDSVILLE, Ky. (WDRB) – Convicted of receiving stolen property in 2011, George Schmidt Jr. fell behind on his court-ordered restitution payments – and that was enough for a Bullitt County judge to order Schmidt to jail, indefinitely, until Schmidt could come up with the full $1,265 he owed.

There Schmidt sat for more than nine months until an attorney asked for his release in February 2012, arguing that district judge Rebecca Ward's “sit or pay” ruling was unconstitutional.

Schmidt's public defender said the judge had essentially jailed someone too poor to pay, without a hearing or attorney, despite a ruling more than 30 years ago by the U.S. Supreme Court outlawing the practice, which is often called “debtor's prison.”

In fact, Bullitt County judges have for years jailed defendants indefinitely for not paying restitution or certain court fees, according to a WDRB review of cases.

“The Constitution guarantees that people have due process, an attorney and a hearing -- and none of those things are being given to any of these people,” said Jennifer Wittmeyer, director of the Bullitt County Public Defender's office, who represented Schmidt.

....

The unconstitutional “sit or pay” cases aren't unique to Bullitt County, said Ed Monahan, head of Kentucky's Department of Public Advocacy, which represents defendants who cannot afford an attorney.
“It is a big problem in Kentucky,” he said in an e-mail. “Poor people are being locked up for not paying when there has been no willful refusal to pay.”

Complete article

Coverage of Susan King Exoneration

Louisville Courier - Journal 

Woman elated after murder charge dropped 

Susan Jean King's long ordeal is over.

The one-legged woman who claimed she pleaded guilty to a homicide she didn't commit only because she was railroaded by a state police detective won't face a new trial.

The commonwealth's attorney for Spencer and Shelby counties Tuesday agreed to dismiss charges of murder and tampering with physical evidence against King in the 1998 slaying of Kyle "Deanie" Breeden, said her lawyer, Linda Smith, supervising attorney in the Kentucky Innocence Project.

Complete article