Vol. 2, No. 6 A bi-monthly publication of Lhe’Offic for Public Advocacy October, 19B0

COUNTY’S RESPONSIBILITIESFOREXPERTFEES

All public defenders should be awareof OAG 80-401 concerning the paymentof fees necessary for the defense ofindigents. It is reprinted below:

Your recent letter raises the questionas to whether or not the county mustbear the expense of expert witnesses’fees, psychOlogical examinations, etc.,used in defense of indigents chargedwith felonies and represented by thepublic defender.

At the outset, it must be noted thatcounty obligations are not createdunless expressly authorized by statute. Hazelip v. Fiscal Court ofEdmonson County, 228 Ky. 80, T4S.W.2d 398 1929 399.

You have indicated by telephone thatunder KRS 3Ll60Ib, Boone Countyis currently committed to a publicdefender program. Such commitment ispermissive, but when a county selectsa public defender program under that

See OAG, p. 2

THE ADVOCATEFEATURES..,

Kent Akers of Nelson County has beendoing Public Defender work for fiveyears. He is a sole practitioner with ageneral practice. Kent grew up inBloomfield in Nelson County. Hegraduated from the University ofKentucky in 1971 with a degree inBusiness Administration and from theUniversity of Louisville law school in1974. He theii returned home to practice law.

Kent is a conscientious public defenderwho obviously cares about his clientsand is willing to work more hours thanthe few for which he is compensated.He has done criminal defense work forfive years, and recently he has undertaken some Protection and Advocacywork which he finds interesting. Kentwas initially assigned to represent in a

INSIDEPage

West’s Review 3Kentucky Group Homes 5

Detainers 8Death Penalty 10Advocacy in Juvenile Court 11

Identification 15 See Akers, p. 2

OAG, Continued from p. 1

statue, it is committed for that particular fiscal year. This commitment ison a year by year basis. See 504KAR 1:020, Sections I and 2. Sincethe county is currently under a publicdefender program, Boone County mustpay the expert witnesses’ fees pursuant to KRS 31.1901, 31.2001, and31.2403. The state furnishes $16,000a year for the program, but thatcovers defense counsel fees only. SeeKRS 31.0502. Thus under the abovementioned statutes, the county mustbear necessary defense expenses otherthan the defense counsel fees coveredin the state’s appropriation of $16,000.

As relates to psychological examinations, KRS 31.185 applies. Where thedefense attorney considered the use ofstate facilities as being impractical, thecourt concerned may authorize the useof private facilities to be paid for oncourt order by the county. Young v.Commonwealth, Ky., 585 S.W.2d 3781979.

*******

SUPPLEMENTS FOR FITZGERALDCRIMINALPRACTICEAVAILABLE

In May, 1978, the Office for PublicAdvocacy distributed Volume 8 of theWest Kentucky Practice Series at theAnnual Public Defender TrainingSeminar. Volume 8 is Criminal Practiceand Procedure by the late Tex Fitzgerald. The 1980 Pocket Part to thatwork, written by C. David Emersonhas recently been released by WestPublishing Co. The Office for PublicAdvocacy has a limited number ofcopies of the pocket part which can besold to attorneys at $6.50 each. Ifyou received a copy of Fitzgerald atthe seminar and you desire a copy ofthe pocket part send us a check for$6.50 and we will send one to you byreturn mail.

Akers, Continued from p. 1dependency proceeding the parents ofa mentally retarded juvenile who wasabout to be expelled from school.fter getting the dependency petitiondismissed, Kent followed up on thedevelopmentally disabled juvenile’seducaticnal problems. His approach tothe case demonstrated concern aboutall of his client’s legal problems.

Kent’s perception and willingness topursue new avenues of assistance forhis clients are exceptional assets to,the Public Defender and Protection andAdvocacy systems. That quality isevidenced by his recent efforts to. findlong-term placement in a mental healthfacility for a disturbed client who hasentered a guilty plea but may haveserious problems adjusting to a prisonsituation if he is simply sentenced tothe Bureau of Corrections.

Kent’s most time-consuming "hobby" isserving in the National Guard. Herecently spent nineteen days at aCuban refugee camp in Arkansas. Hisother favorite leisure time pursuit ishunting.

Kent feels that the Office for PublicAdvocacy seminars are very helpful,and he believes in seeking help fromother local attorneys or from the Officefor Public Advocacy central officewhen faced with an unusual problem.Thanks for your contribution to thePublic Defender system, Kent.

* *** * * *

The National College For CriminalDefense will hold a Death PenaltyDefense Seminar December 5-7, 1980 atthe Sheraton Charleston Hotel,Charleston, South Carolina. Tuition is$170.00. For further info or to register, contact Registrar, NationalCollege For Criminal Defense, Collegeof Law, University of Houston, Houston, Texas 77004. 713 749-2283.Contact this same address for theDEATH PENALTY REPORTER, published twelve times per year for$50.00.

-2-

WEST’S REVIEWKentucky decisional law for July andAugust includes two Court of Appealsdecisions which highlight the confusiongenerated by the Kentucky SupremeCourt’s decision in Cleaver v. Commonwealth, Ky., 569 S.W.2d 166 1978.Cleaver, of course, modified the procedure for obtaining a belated appealsee "The Belated Appeal Dilemma,"The Advocate, v. 2, no. 5, p. 6.

In Able v. Commonwealth, Ky.App.,S.W.2d August 15, 1980, the

Court, inIi opinion by Judge Vance,held that "Cleaver . . . clearlypointed out that RCr 11 .42 does notconfer jurisdiction on a circuit court toreinstate a right of appeal." MasterSlip Opinion at 2. "A belated appealor the reinstatement of a lapsed appealcan be granted only by the appellatecourt that is to entertain it." Id.According to the Able Court, the oiiyavenue of relief for the defendantwhose appeal has not been perfectedbecause of the ineffective assistance ofcounsel lies in petitioning the appellatecourt for a reinstatement of theappeal. The same is true if a noticeof appeal was never filed and thedefendant is thus seeking a "belated"appeal.

A conflicting holding was reached bythe Court in Hines and Hendron v.Commonwealth, Ky.App., 27 K.L.S. 11at 2 August 15, 1980. In an opinionby Judge Wilhoit, the Court found thatCleaver stands only for the principalthat "where an appellate court hasdismissed an appeal only that courtmay reinstate the appeal . . ." TheCourt held that where an appeal hadnot been perfected, but had not beendismissed by an appellate court, anRCr 11.42 motion to the circuit courtis still the proper recourse. If thecircuit court finds after a hearing thatthe failure to perfect the appeal isattributable to the ineffective assistance of counsel, then a new judgmentshould be entered from which a timelyappeal can be taken. This holding is

squarely in conflict with the holding inAble. Discretionary review is beingsought in both cases.

The Court has reaffirmed the right ofa probation revocee to notice of thegrounds upon which his probation issought to be revoked. Lynch V.Commonwealth, Ky.App., 27 K.L.S. 11at 7 August 22, 1980. Notice, ofLynch’s probation revocation hearingwas served upon counsel who hadrepresented him at guilty plea proceedings more than a year previously. Nonotice was served upon Lynch himselfThe Court, citing Gagnon v. Scarpelli,411 U.S. 778, 93 S.Ct. 17S, 36 L.Ed.2d 656 1973, found that this wasinadequate notice in view of the lackof continuity between the guilty pleaproceedings and the probation revocation hearing. Under these circumstances, notice to the revocee himselfwas required.

In Waugh v. Commonwealth, Ky.App.,27 K.L.S. 11 at 12 August 29, 1980,the Court reversed the appellant’sconviction of trafficking in a controlledsubstance. The drugs recovered fromWaugh’s person were obtained as aresult of his unlawful arrest. Officersreceived a tip from an anonymousinformant that Waugh would be in acertain location at a certain time. Theofficers knew that Waugh had beenpreviously arrested on drug-relatedcharges. Based on this information,the police proceeded to the designatedlocation where they found and arrestedWaugh. The Court of Appeals agreedwith Waugh that the police lackedprobable cause for his arrest inasmuchas there was nothing to indicate thatWaugh was about to engage in criminalactivity.

The most noteworthy decision from theKentucky Supreme Court for theperiod under review is th? Court’smulti-faceted decision in Gall v. Commonwealth, Ky., 27 K.L.S. 11 aTT6September 2, 1980see "DeathPenalty" for a review of those death

-3-Continued, p. 4

penalty related issues discussed inGall. The Court affirmed Gall’s deathsentence imposed under KRS 532.025,Kentucky’s new capital sentencingstatute. A number of issues ofgeneral concern are addressed by theopinion. Of broadest impact may bethe Court’s explication of the lawpertaining to the absence of "extremeemotional disturbance" as an element ofmurder. The Court held that "[a]ninstruction on murder need not requirethe jury to find that the defendantwas not acting under the influence ofextreme emotional disturbance unlessthere is something in the evidence tosuggest that he was . . ." Gall, at19. Once the issue of extreme emotional disturbance is raised the burdenof proving its absence rests with thecommonwealth. However, the fact thatthe commonwealth fails to introduceany evidence does not, apparently,entitle the defendant to a directedverdict. "Unless the evidence raisingthe issue is of such probative forcethat otherwise the defendant would beentitled to a directed verdict ofacquittal, the prosecution is not required to come forth with negatingevidence in order to sustain its burdenof proof." Id. Unfortunately, theCourt’s analyTh of this issue is lessthan completely clear. However, itappears that, as practical reality, thedefense bears the burden of provingthe existence of extreme emotionaldisturbance.

Also addressed in Gall was the question of the extent to which a jury maybe made aware by defense counsel ofthe possibility of civil committment ofthe defendant in the event he isacquitted by reason of insanity. TheCourt had previously held in Edwardsv. Commonwealth, Ky., 554 S.W.2d 380r1977, that the defendant was notentitled to an instruction advising thejury that he could be committed ifacquitted by reason of insanity.However, the Court has observed in

Gall that defense counsel is not proFTBTted from arguing to the jury that,if the defendant should be acquittedand again lapse into insanity, thereare means to obtain his civil commitment.

No opinions were issued by the UnitedStates Supreme Court during theperiod reviewed.

**

DEFENDER’ S CREDO

I am a Public Defenderit am the guardian of the presumption ofinnocence, due process, and fair trialTo me is entrusted the preservationof those sacred principlesI will promulgate them with courtesyand respectBut not with obsequiousnessand notwith fearFor I am partisan; I am counsel for thedefenseLet none who oppose me forget thatWith every fibre of my being I willfight for my clientsMy clients are the indigent accusedThey are the lonely, the friendlessThere is no one to speak for them butmeMy voice will be raised in theirdefenseI will resolve all doubt in their favorThis will be my credo; this and theGolden RuleI will seek acclaim and approval onlyfrom my own conscience. And if uponmy deaththere are a few lonely people who havebenefitedmy efforts will not have been in vain.

JIM DOHERTYPUBLIC DEFENDERCHICAGO, ILLINOIS

-NOTEProtection & Advocacy for theDevelopmentally Disabled

KENTUCKY GROUP HOMES

At the 1980 Annual Public AdvocateTraining Seminar several local publicadvocates indicated that they would beable to more adequately representclients with and/or without developmental disabilities if they were familiarwith community group homes availablefor those clients. To assist in thismatter the Protection ‘ and AdvocacyDivision has compiled the followinginformation about the various grouphomes existing in Kentucky.

The Department for Human Resourceshas been involved in a variety ofgroup home programs for several yearsthrough actual operation of homes,provision of consultation and technicalassistance to operators and throughcontracts to develop resources with theprivate sector. The Department hasprimarily four 4 types of on-goinggroup homes; 1 group homes fordevelopmentally disabled, 2 grouphomes for foster children, 3 treatmentoriented group homes, and 4 grouphomes for treatment of adjudicateddelinquents.

During its initial stages, group homeswere often managed by a live-in couplewho found themselves acting’ in therole of surrogate parents. Thesegroup homes operated more as fosterhomes rather than providing activetreatment programs for its residents.

As time passed, it became increasinglyapparent that the Department wouldhave to modify these programs andprovide consistent care for youths withbehavior problems.

In 1974 the focus shifted from thefoster family-type program to programswith professional staff to provide careduring scheduled hours over a twenty-four hour period. The Departmentwas able to accomplish this by fundingthey received from the Kentucky CrimeCommission with Law EnforcementAssistance Administration LEAAfunds. As the grants expired, grouphome programs were continued withstate funding.

Due to the escalating costs of residential programs and the efficiency intreating youths with behavioral problems in a lesser restrictive’ environment, the Department plans to directthe care and treatment of youthfuloffenders on community-based grouphomes.

The following information is brokendown into four 4 groups, eachincluding their statutory and regulatory authority. Only the first groupwill be listed in this issue. GroupHomes for Public Offenders, Neglected,Abused and Dependent Children’sGroup Homes and Developmental Disabilities Group Homes will be listed inthe next issue of THE ADVOCATE.

-5-

GROUP HOMES FOR STATUSOFFENDERS

Relates to: KRS 199.0115, 6, 7, 12; KRS 199.640 to KRS 199.670

Pursuant to: KRS 13.082, KRS 194.050

Regulations: 905 KAR 1:091; See also 905 KAR 1:110

Waddy Group HomeRoute 2, 1-64 - 365 Int.Waddy, Kentucky 40076Diane Smith 502 829-5391Female; ages 13-15Female; ages 13-15

Outlook House Group Home1710 Terrace View DriveLexington, Kentucky 40504Kathy Christopher 606 252-7490Female; ages 13-17

Morehead Group Home334 Old Flemingsburg RoadMorehead, Kentucky 40351Jo Ann Stapleton 606 784-8143Female; ages 13-15

London Group HomeRoute 2, Box 4London, Kentucky 40741Norma Sizemore 606 864-7911Female; ages 15-17

Ashland Group Home3700 Thirteenth StreetAshland, Kentucky 41101William Vance 606 324-8141Male; ages 15-17

Chaney House Group Home115 South Green StreetHenderson, Kentucky 42420Torn Marshall 502 827-2253Male; ages 10-16

D.A.T.A. House1633 BeechwoodLouisville, Kentucky 40204David Riffe 502 454-7626Male; ages 12-18

Kennedy Group Home109 Kennedy AvenueLouisville, Kentucky 40206David Riffe 502 493-7670Female; ages 12-18

AudulSon Youth DevelopmentCenter - Boy’s Group HomeRoute 2, Box 47A3001 Leitchfield RoadOwensboro, Kentucky 42311David Peak 502 685-4477Male; ages 13-17

Audubon YDC Girl’s Group HomeRt. 2, Box 47A; 3001 Leitchfield Rd.Owensboro, Kentucky 42311Rita Howard 502 685-4477Female; ages 15-18

Breckinridge Group HomeP. 0. Box 740Elizabethtown, Kentucky 42701Priscilla King 502 737-5637Female; ages 14-18

Shelby Group HomeP. 0. Box 740Elizabethtown, Kentucky 42701William Beeler 502 737-5637Male; ages 14-18

Camp Street Group Home537 Camp StreetLouisville, Kentucky 40203David Riffe 502 636-2108Female; ages 12-18

Crescent House316 Crescent CourtLouisville, Kentucky 40206David Riffe 502 897-9959Male; ages 12-18

Metro Group Homes, Inc. 2 Homes617 Price AvenueLexington, Kentucky 40508Vicki Reed 606 259-0061Male-Female; ages 13-17

Phoenix House612 West OrmsbyLouisville, Kentucky 40203Kathy Lawkins 502 637-6680Male-Female; ages 13-17

Boone Group HomeP. 0. Box 740Elizabethtown, Kentucky 42701Steve Bower 502 737-5637Male; ages 14-18

Clay Group HomeP. 0. Box 740Elizabethtown, Kentucky 42701Wendy List 502 737-5637Female; ages 14-18

Ervin S. Pruitt House159 South College StreetPikeville, Kentucky 41501 .Charles Mccoy 606 432-4782Male - Female; Up to 18

Mason Manor, Inc.221 Wood StreetMaysville, Kentucky 41056Ann Johnson 606 564-6818.Male - Female; Up to 18

Boys Orientation Group Home1523 Winter AvenueLouisville, Kentucky 40204Kathleen Gunderson 502 589-1689

Girls Orientation Group Home1212 East BroadwayLouisville, Kentucky 40204David Riffe 502 581-6060

Central Kentucky Group Home401 West Eighth StreetParts, Kentucky 40361Betty Daugherty 606 987-7587

Christian Appalachian Project Group HomeRoute 3Mt. Vernon, Kentucky 40456Tony DeLeon 606 256-5724

Hollen House, Inc.Old Frankfort PikeGeorgetown, Kentucky 40324 -

Mrs. John Ward 502 863-6494

Maplewood Home, Inc.481 ldlewild RoadBurlington, Kentucky 41005Billie Jo Morris 606 586-7280

West Home for Girls2110 North Elm StreetHenderson, Kentucky 42420Tom Marshall 592 827-2253Female; ages 9-17

YMCA SheIter House II1410 South First StreetLouisville, Kentucky 40208Allen Mathews 502 634-4786Male - Female; ages 16-18

Agape Group HomeRoute 2Leitchfield, Kentucky 42754Ronald Miller 502 257-2500Male - Female; Up to 16

Camp Street Girl’s Home500 Camp StreetLoUisville, Kentucky 40203David Riffe 502 637-6197

Renaissance Committee Group Home406 South Seventh StreetPaducah, Kentucky 42002Pam Haines 502 443-3726

YWCA Halfway House604 South Third StreetLouisville, Kentucky 40202Donna Rutledge 502 585-2331

Bardstown Road Group Home1619 Bardstown RoadLouisville, Kentucky 40205David Riffe 502 458-7390

Jefferson Street Boys Group Home1924 West Jefferson StreetLouisville, KentuckyDavid Riffe 502 584-3440

Jefferson Street Girls Group Home1922 West Jefferson StreetLouisville, Kentucky 40203David Riffe 502 584-3384Female; ages 1.2-18

7

INTERSTATE AGREEMENT ONDETAINERSKRS440.450

Often a person imprisoned in this statewill be wanted to face pending chargesin another jurisdiction. Likewise aprisoner in another state may bewanted in Kentucky for the samereason. Therefore a detainer may befiled at the prisoner’s institution. Inthis situation the Interstate Agreementon Detainers, KRS 440.450, willgenerally come into play. That compact allows either the prosecuting stateor the inmate to demand a trial on thecharges.

If the inmate is wanted in anotherjurisdiction even if a detainer has notbeen filed he may want to attempt toget the charge dismissed rather thandemand a trial. In this case a numberof factors must be examined to determine whether or not negotiations withthe prosecutor should take place and ifso what should be considered. Thesefactors include the seriousness of theoutstanding charges, the length andnature of the prisoner’s current conviction, his institutional record, theimpact of the detainer on his incarceration, the distance from the demandingstate, the willingness of the prisonerto make restitution, the possibility ofconcurrent sentences an& any benefitsto the prosecutor in dropping thecharges. It must be remembered thatif the prosecutor is contacted it maycause him to file a detainer or requesta disposition under the InterstateAgreement on Detainers if a detainerhas already been filed.

If negotiations fail or if they aredeemed to be useless the inmate maywish to request under Article Ill of thelAD that he be brought to trial onthose charges. The inmate may desirethis disposIion for a number of reasofls. First, he may be denied thechance to become involved in rehabilitative programs since rehabilitationis often deemed useless for an inmatethat will be transferred to anotherjurisdiction when he has served hissentence or is released on parole. Hemay be denied a number of privilegessince he is considered a greater escaperisk. He may also be placed in maximum security without a consideration ofthe seriousness of his offense, hisinstitutional attitude or even the likelihood that the detainer will be actedupon. Disposition of the charge andthe subsequent lifting of the detainermay alleviate all these problems. Theinmate may also hope to receive asentence from the other jurisdictionwhich will run concurrently with thesentence he is serving. See Peale v.Sigler, 392 F.Supp. 325 E.D. Wash.1974 for a general discussion of theeffects of a detainer.

If he does desire to be tried on thecharge, a written .request must beconveyed to the appropriate prosecutingofficer and court in the jurisdictionwhere the charges are pending. Article1111. The Kentucky Supreme Courthas held in Lovitt v. Commonwealth,Ky., 592 S.W.2d 133 1979, that it issufficient if the request is given to theprisoner’s custodian. The custodianmust then forward the request alongwith a certificate stating the term beingserved, time already served, timeremaining to be served, good timeaccrued and parole eligibility date tothe prosecutor. Art. 1111.

After the request has been made trialmust commence within 180 days. Art.1111; Franks v. Johnson, 401 F.Supp. 669 E.D. Mich. 1975. If not,the appropriate court must enter anorder dismissing the charge with

Continued, p. 9-8-

prejudice. Also the detainer is of nofurther effect. However, it should benoted that continuances can be grantedfor good cause if "necessary andreasonable." Art. 1111. Chargesmust similarly be dismissed if theprisoner is returned to his place ofincarceration without a trial havingtaken place. Art. 1114.

Another important factor to rememberabout Article Ill is that the request isfor a disposition of all charges in thereceiving state on which a detainer hasbeen placed. Id. Therefore the certificate and thé request must be forwarded to all of the appropriate prosecutors. This holds true even if theinmate has requested trial on only oneof those pending charges.

There may be situations in which theinmate is satisfied with leaving thecharges pending. However he cannotrest assured that he will not be triedon those charges before his presentincarceration has ended. Article IV ofthe lAD provides that the prosecutorwho has lodged a detainer is entitledto have the prisoner appear for trial ifhe presents a written request throughthe appropriate court to the holdingjurisdiction. Art. lV1. After thisrequest a prisoner has a period ofthirty 30 days in which to contestthe request before transfer is mandated. Id. During this time theinmate may request the Governor todisapprove of the transfer or may filean action seeking to stop the transfer.Id.

As under Article III, the holdingauthorities must forward a certificateto the prosecutor similar to that underArticle III. Art. lV2. This certificate must be sent to all other prosecutors in the state where charges arepending who have also lodged detainers. Id.

Under Article lV3 trial must becommenced within 120 days after theprisoner has arrived in the state fortrial. Failure to do so will result i,n adismissal of the charges. UnitedStates V. Woods, 465 F.Supp. 89 D.C.

Ky. 1979. As under Article Ill areturn to the state of incarcerationwithout trial will cause the dismissal ofboth the charges and the detainer.See United States v. Eaddy, 595 F.2d341 6th Cir. 197ff; But see Shanksv. Commonwealth, Ky. App., 574S.W.2d 688 1978. Continuances underArticle IV may also be granted. Art.lV3.

One important point to remember isthat although the lAD provides timelimits, the right of the prisoner to aspeedy trial is not measured solely bythose requirements but may also bejudged in terms cf his constitutionalright to a speedy trial under the SixthAmendment. See Watson v. Ralston,419 F.Supp. 536 N.D. Wis. 1976.Whether or not the inmate requested adisposition of the charges will be animportant factor if the issue is raised.See Payne v. Commonwealth, Ky. 27K.L.S. 4 4-1-80.

The lAD does not apply in all situations in which a detainer is involved.First, both the sending and receivingstates must be parties to the lAD.But even if this is not the case thelAD will not apply when a federaldetainer is lodged against a federalprisoner, when a detainer is lodgedagainst a person incarcerated awaitingtrial, when a detainer is lodged basedon a parole or probation violationKentucky is the only jurisdictionwhich has applied the lAD to thesesituations. See KRS 440.455. Ifuntried charges exist but no detainerhas been lodged the lAD similarly doesnot apply. However it should beremembered that in this situation theUniform Criminal Extradition Act, KRS440.150 to .420, may come into play.

Two good sources of information on thelAD are 98 ALR 3rd 160 and CriminalDetainers, by Professor Leslie W.Abramson of the University of Louisville, College of Law. If there areany questions concerning the Interstate Agreement on Detainers pleasefeel free to contact the Post-ConvictionServices Division.

RANDY WHEELER

‘cj

GENE GALL’S SENTENCE OFDEATH AFFIRMED BY

SUPREMECOURT

Eugene Gall’s conviction for murderwith the aggravating factor of firstdegree rape and sentence of deathwere affirmed by the Supreme Court ofKentucky on September 2, 1980.

The Court rejected Gene’s claim that ajuror was improperly excluded underWitherspoon v. Illinois, 391 U.S. 5101968 and Adams v. Texas, IOU S.Ct.2521 1980. The excluded juror wasequivocal as to whether he couldimpose the sentence of death. At notime did the juror state he was unableto impose a capital sentence. Adamsheld that Witherspoon was a limitationon the power of the state to exclude ajuror. A juror can only be excludedwhen he is irrevocably opposed toimposing a sentence of death: "Butneither nervousness, emotional involvement, nor inability to deny or confirmany effect whatsoever is equivalent toan unwillingness or an inability on thepart of the jurors to follow the court’sinstructions and obey their oaths,regardless of their feelings about thedeath penalty."

The Kentucky Supreme Court determined that Adams was inapplicable toGene’s case since the juror neverindicated that he could consider deathas an option. Further, the KentuckyCourt held that "Witherspoon does notrequire the acceptance of a juror whois unable to say that he can exerciseopen-minded discretion with regard tothe vital issues he will be called uponto decide." In so deciding, it seemsthat the Court, like the state of Texasin Adams, has mistaken Witherspoon as

a grounds for disqualifying prospectivejurors, instead of being a limitation onthe state’s power to exclude.

The Court refused to substitute itspersonal viewpoints with’ regard toGene’s severe mental condition for thejury’s determination that no mitigatingcircumstances existed. Paradoxically,the Court observed, "Perhaps the realproblem lies in the very nature of thedefense of insanity. It may be toomuch to ask of any set of men orwomen to make a dispassionate assessment of a criminal defendant’s mentalcondition, especially in the setting of arevolting offense he has committed."Yet, the Court did nothing to legallyaccount for this human reality.

The Court dealt with the many challenges to the constitutionality, underthe Kentucky and United States Constitutions, of the statute by stating,"In our opinion it is not a constitutional issue and we do not find itunconstitutional ."

In its proportionality review of thesentence, the Supreme Court comparedGene’s sentence to 16 cases since 1972in which the sentence of death wasimposed, and citing 13 of these casesfound the sentence ". . .not excessiveor disproportionate to the penaltyimposed in similar cases." The Courtreached this conclusion with no explanation. All but one of the 13 casesinvolved unconstitutionally imposedsentences of death’. The Court refusedto consider 9 Kentucky capital casesconducted under the present statutewhich had more aggravating factorsand less mitigating factors, and forwhich a sentence other than death wasimposed.

THE DEATHPENALTYDeath is Diffeent

- 10-

ADVOCACYIN JUVENILE COURT

As Mr. Justice Douglas, writing forthe United States, Supreme Court, soaptly stated, "Neither man nor childcan be allowed to stand condemned bymethods which flout constitutionalrequirements of due process of law."Haley v. Ohio, ‘332 U.S. 596, 6011948. Notwithstanding such loftyrhetoric, almost two more decadeswould pass before the full Courtspelled out exactly what due processaf-forded in the context of juvenileproceedihgs. Beginning in 1966, theCourt would articulate those rightswhich would ensure such "proceduralregularity" as would be "sufficient inthe particular circumstances to satisfy’‘the basic requirements of due processand fairness." Kent v. United States,383 U.S. 541, 553 1966. Thoserights would be held to include adequate notice of charges, assistance ofcounsel; confrontation and cross-examination; conviction only uponproof beyond a reasonable doubt; and,the prohibition against doublejeopardy. Kent, supra In Re Gault,387 U.S. 1 1967; In ReWinship, 397U.S. 358 1970; Breedv. Jones, 421U.S. 519 1975. ‘ -

_____

At least one major distinction betweenadults and juveniles continues to bethe jury trial. The Supreme Courthas held that a jury trial is not constitutionally required in juvenile proceedings because a jury is not "anecessary component of accurate fact-finding." McKeiver v. Pennsylvania,403 U.S. 528 1971. It should benoted that in McKeiver, the Court wasat ‘least trying to stress the "rehabilitative" function of the juvenile court,versus the full-blown adversary,punishment-oriented function of adultcriminal courts.

The Kentucky legislature has attemptedto maintain the distinctive treatment ofjuveniles in promulgating KRS Chapter208. This chapter is an umbrella,covering everything from arrest to

disposition, including separate sectionson those juveniles who should betreated as adults. That chaptergrants exclusive jurisdiction to thejuvenile session of the district court ofany person ‘who at the time of committing a public offense was unerTFieage of eighteen years. KRS 208.020.Thee juvenile session also has exclusivejurisdiction of children who are dependent, abused or neglected; habituallytruant; or, beyond the control ofparents or other legal guardians. Thefocus of this article, however, will beon delinquency proceedings.

Juvenile proceedings consist of twodistinct hearings: the adjudicatory, orguilty-innocence, stage; and, thedisposition stage. It should be notedthat it is left to the discretion of thechild to invoke the Rules of CriminalProcedure during the adjudicatorystage. KRS 208.060Ib.

The law of arrest is applicable in tototo children. KRS 208.110. Juvenileshave at least one safeguard notafforded adults: immediate notice mustbe given to the parents of an arrestedchild. KRS 208.1103. The childmust be released to the parents upon apromise to produce the child beforethe juvenile court. Id. This statutory requirement is very often notcomplied with by police officers, whorather will detain a child for questioning in order to procure a statement. [The author has had success insuppressing a child’s statement due tofailure to comply with this section.]Other common grounds asserted forsuppression of in-custody statementsrelate to supposed "waivers" ofMiranda rights. Studies have shownthat only a very small percentage ofjuveniles are capable of ‘knowingly andintelligently waiving such rights. SeeFerguson and Douglas, "A Study ofJuvenile Waiver", 7 San Diego L.R.39. Defense counsel should take note,however, that while a custodial requestto consult a probation officer does notrequire termination of interrogation,

-11-

Fare v. Michael C., 99 S.Ct. 2560‘T979, there is aeveloping concernthat a juvenile be counseled by someinterested adult parent, guardian,etc. as a prerequisite to the admissibility of any custodial statements by ajuvenile. See Riley v. State of Illinois,

u.s. -, 98s.Ct. 16571978tMj’; Justice Marshall and Mr. JusticeBrennan, dissenting from denial ofcert.

thei’e is some discretion on the part ofarresting officers to detain a childbased upon "the nature of the offenseor other circumstances." Id. If achild is to be detained, such detentionmust be in a suitable juvenile detentioncenter; if a, child is detained in jail,he or she must be sight and soundseparated from adult prisoners.

In the event a child is detained uponarrest, he must be given a hearingwithin 72 hours. KRS 208.192. Thedetention hearing must address twodistinct issues: first, the county mustshow probable cause that the childcommitted the ‘ offense ‘ of which hestands accused; second, the countymust prove that "detention is necessary to assure the safety of the child,protection of the community, and theappearance of the child in court."The juvenile probable cause hearing isdistinguishable from an adult hearingin one crucial respect: KRS 208.192specifically affords the juvenile allconstitutionally guaranteed rights,includinQ but not limited to confrontation and cross-examination. It iscommon practice T adult probablecause hearings to admit "investigativehearsay", particularly from policeofficers. The juvenile statute,s specifically prohibit this practice by providing for confrontation. The rationale ofthe rule probably lies in the fact thatchildren are not entitled to bail, KRS208.110, and hence the Commonwealthbears a greater burden before depriving a child of liberty.

As noted supra, during the nextphase, or adjudicatory stage of theproceedings, a child is entitled to thesame rights as an adult, except fortrial by jury.

If a cE1iId is adjudicated delinquent,i.e., guilty, of an offense, the courtmust then proceed to a proper disposition. The court has available to it apanorama of alternatives. The courtmay commit the child to the stateDepartment of Human Resources’ forinstitutionalization. KRS 208,194. Inthat event, the child, like his adultcounterpart, may be granted "shockprobation."

If a child is not committed to either apublic or private agency for residentialtreatment, the court may place thechild on probation in his own home.KRS 208.200. Of course, if a child isto be removed from his home forresidential "treatment", counsel shouldalways ensure that such treatment isboth appropriate, and entails the leastrestrictive alternative. Remember thatthe whole rationale of the juvenilesystem is treatment, consequently theconstitutioni’ right-to-treatment"cases are persuasive. For example, theUnited States Supreme Court inJackson v. Indiana, 406 U.S. 715, 738t72Y stated that ". . . due processrequires that the nature and durationof commitment bear some reasonablerelation to the purpose for which theindividual is committed." Becausedefense counsel usually do not haveany particular expertise in the diagnosis or treatment of disturbedyouths, ask the court for funds forindependent testing by psychologists,psychiatrists, or other appropriateprofessionals. KRS Chapter 31 provides indigents a broad right of accessto "necessary services and facilities orrepresentation including investigationand other preparations." KRS 31.110.Such services are chargeable againstthe county in which the proceedingoccurs. KRS 31.200. Of course, asthe statute provides, there must be a

-12-

showing of necessity. If the juvenilecourt orders any defense services tobe performed by a state facility,rather than providing funds for private experts, make sure that anyreport or evaluation is disclosed onlyto defense counsel. There are severalbases for such reports remainingprivileged: first, they are "work-product" much the same as any otherinvestigative reports procured bydefense counsel; second, particularommunicaXions may be privilegedpursuant to KRS Chapter 421 psychiatrist; school counselors; third,the child’s Fifth Amendment privilegeagainst self-incrimination may precludedisclosure of incriminating informationgiven to experts during the course ofevaluation or treatment. These communications should remain privilegedunless and until defense counseldecides to use any reports or evaluations in court on behalf of his client.

In the event a child is adjudicateddelinquent and restrained of hisliberty or punished in y manner, thechild may appeal to thicircuit courtas a matter of right. KRS 208.380.Such appeal shall be taken in conformity with the Criminal Rules. Id.Note that since some punishment is acondition precedent to the taking of anappeal, the notice of appeal should notbe filed until after disposition, ratherthan calculating the time for notice ofappeal from the date of adjudication.A child has a right to a hearing todetermine whether he should be released during the pendency of theappeal. KRS 208.3802. Again, thecounty bears the same burden as atthe initial detention hearing. Id.

Of course, not all juveniles are entitled to the benefits of the juvenilejustice system. The juvetiile courtmay waive its exclusive jurisdiction ofthe child, and transfer the case to thecircuit court. KRS 208.170. Onlythose children 16 years of age or olderand charged with a felony, or less

than 16 and charged with a Class Afelony or capital offense, are susceptible to waiver.

At the waiver hearing, the countymust prove probable cause that thechild committed the offense. Upon ashowing of probable cause, the courtmust then consider the seriousness ofthe offense, with greater weight givento offenses against property; thematurity of the child; the child’s priorrecord; and, perhaps most importantly, the likelihood of rehabilitationif the child is retained in juvenilecourt.

There is scant Kentucky case law onthe exact showing required by thesefactors. However, there is authorityfrom other jurisdictions that imply atleast the necessity of a competentjuvenile as a prerequisite to wavier.For example, in interpreting a similarstatutory scheme juvenile court toconsider "maturity and sophistication"of child the Texas Court of CivilAppeals has held that the statutoryrequirement "refers to the question ofculpability and responsibility for hisconduct, as well as to the consideration of w1et1F lTe caFEintelligentlyiTie Tights and aistTh the preparation of his dTnse." In Re C.L.Y.,

57trS.W.2d 238 l’78 See alsoIn Re S.W.T., Minn.,

___

N.W.2d- T1979.

Defense counsel should always befamiliar with the availability of servicesfor children both in the community andthe Commonwealth. It is an unusualchild for whom some treatment facility,heretofore untried, could not befound. A showing of the availabilityof such a facility might support anargument for amenability to treatment.

In the event the court does waive itsjurisdiction, the case will be transferred to the grand jury. At thisstage, the grand jury still must beinstructed that it may return the caseto the juvenile court. KRS208. 1705a.

-13-

""‘."‘ ‘" ‘...", . ‘-‘ " ‘ .‘":‘ ‘‘‘:"‘-‘

Of special importance is the child’sright to appeal any waiver order.Indeed, at present an appeal appearsto be necessary in order to preserveany error in the waiver proceeding.Newsome v. Commonwealth, Ky. App.,

____

S.W42d

____

19 . NoteFowever, that tFie Commonwealth successfully received discretionary reviewon this case. and that the decision ofthe Kentucky Supreme Court waspendingat.the time this issue of THEADVOCATE went to the printer. Afailure to properly preserve any errorin the transfer proceedings will resultin an inability to raise the issue ondirect appeal in the event of a conviction in the circuit court,. . Schooley v.Commonwealth., Ky.App.,,___ SW.2d

____

.19 .. Possible grounds forappeal include, the failure to properlyinvestigate th:eChjld prior to transfer,or the. failure f the juvenile court tostate jn. specific .terms the reasons ‘forthe transe.r. . Hopson v. Commonwealth,, Ky, 500 S.W.2d 792 1933;Richardson v. Commonwealth, Ky., 550

SW2d53 fl977.

In the. event a child is transferred tocircUit bourt,, tried, and convicted"before. ‘his eighteenth birthday, thecircuit court may in its discretion

diteCt.: the commitment of the child tothe. Department of Human Resourcesfor that’ part of any sentence up toand including the child’s twenty-firstbirthday. K,RS 208.180.

In the. unlikely event that a juvenile istried for a capital offense in which theCommonwealth seeks the death penalty,be aware that it has already been heldthat a. sentence of. life without parolefor juvenil,e yiolates the gt.iaranteeagainst, cruel and,unusual. punishment.Workman v. Commonwealth, Ky., 429S.W.2d 274..l68. It would seem tofollow then that a sentence of death isat, least as cruel and unusual.

Although the Kentucky Supreme Courtrecently declined to prohibit the Commonwealth, prior to trial, from seekingthe death penalty as to a juvenile, theCourt in its unpublished order indicated that it was not convinced thatthe child would not have an "adequateremedy" on appeal. Ice v. Graham,80-SC-469-MR, August 27, 1980.However, the court might be convincedif there were an adequate pretrialshowing of psychological or othertraumatic damage resulting from thevery fact of a capital trial. Use KRSChapter 31 to ask for funds for experts in an attempt to document thereason why a writ of prohibitionshould issue in your particular case.

As final note, counsel who defendchildren accused of crime shouldalways be aware of their proper role,and that role is as an advocate. Ajuvenile court is just that, a court,wherein the child is not seiking itspaternalistic assistance, but , rather isappearing against his will. Defensecounsel should represent the juvenileclient as any other, i.e., afterthorough investigation of the facts andthe law, and with a zealous presentation of his client’s position to thecourt. Nothing less will suffice tomake real the promise of childadvocacy.

C. THOMAS HECTUSASSISTANT DISTRICT DEFENDER

JEFFERSON COUNTY

"Under our Constitution, the conditionof being a boy does not justify akangaroo court." In re Gault, . 387u.s. 1967.

I

TRIAL TIPSTHE DEFENSE OF IDENTIFICATION

‘CASES-- PARTII

Having reviewed the pronouncements ofthe United States Supreme Court inthe last issue of the Advocate, weturn to our own case law and somesuggestions regarding the necessarypreparation for defending eyewitnessidehtification cases in Kentucky.

KENTUCKYCASES

Our own appellate decisions do notprovide much additional assistance inthis area as they have been, for themost part, concerned with interpretingthe decisions of the United StatesSupreme Court. While our Courtshave occasionally found identificationtechniques to be suggestive, they haveapparently never in, a publishedopinion precluded an in-court identification on this basis. See Moore v.Commonwealth, Ky., 569 S.W.2d 150,153 1978, where the Court observedthat ". . .there is no question that thedisplay. . .of a single mug shot.. . wasunnecessarily suggestive," but foundthe in-court identification "reliable"regardless. But seeJones v. Commonwealth, Ky.App., 556 S.W.2d 9181977, ordering a new trial because a"mug shot" was introduced which wasthe product of an illegal arrest. Thephoto was part of a display from whicha pretrial identification was made andwas referred to at trial to bolster thewitnesses’ in-court identification TheCourt of Appeals also noted that

".

. .the photograph of Jones bore adate which was the next day after therobbery in question, and the only dateshown on ahy of the photographswhich was close to the date of thecrime. . . it was one of two bearing thenotation "ROB" . . it was one o1 two inwhich the individuals were wearingcaps, we believe it was impermissiblysuggestive." Id. at 921. On retrial itwas suggested the trial court explorethe issue of reliability’ at anotherhearing since findings were lackingafter the first.

An additional noteworthy case, againby the Court of Appeals, also dealtwith mug shots which had the notation "ROB" and the date of the offenseon the photographs of the defendants.

Brown v. Commonwealth, Ky.App., 564S.W.2d 24 1978. Although the twodefendaits were pictured in a group ofseven mug shots, the Court againfound the display "unnecessarily andunduly suggestive." Id. at 27.However, this time the Court orderedthe,,,., eiid encE of. the pretrial displaysuppressed, apparently as a matter ofstate law, because "the evidence o.f theprior identification had no value forpurposes of corroborating the, in-courtidentification..." Id. at 28. TheCourt remanded for a hearing on thequestion of the admissibility of thein-court identification.

There have been a few decisions bythe former Court of Appeals which,although not dealing with the problemof suggestive identification, haveimplicitly recognized that eyewitnessidentification is not always conclusiveof guilt. Counsel should not hesitateto make and renew motions fordirected verdict even in cases wherethe motion to exclude eyewitnessidentification is overruled. See fry v.Commonwealth, 259 Ky. 337,82 W.2d431, 441 1935, where there were, atleast, five positive eyewitnesses andother more tentative ones; Davis v.Commonwealth, 290 Ky. 745, 162 S.W.2d 778 1942, where the testimony oftwo eyewitnesses did not preclude theCourt’s reversal on appeal. See alsoFyfee v. Commonwealth, 301 Ky. 167190 S.W.2d 674 1945.

The paucity of appellate decisions byour Courts addressing the dangers ofmistaken identification perhaps resultsfrom the misimpression that such aproblem does not exist in our Commonwealth. A couple of years ago, theLouisville Public Defender exposed the

Continued, p. 16

-15-

mistaken convictions of two blackbrothers. The convictions of robbery,kidnapping and sodomy were basedsolely on the eyewitness testimony of asingle, white victim. 1A Nightmare:Overheard Boast Helps Free 2 BrothersWrongly Convicted." The LouisvilleTimes, ‘ Tuesday, NovemiEiF 28, 1978,page 1. , However, regardless of howsensitive or insensitive the judiciary isto the problem, our responsibility is toattack eyewitness testimony in eachcase with as much force and skilIaspossible and ‘hope that ‘the adversaryprocess will insure that no mistakenconvictions result.

PREPARATION

There is, of course, no one way tochallenge the testimony of a witnesswho points to your client and says:"That’s the one." We all learn veryquickly after the first time that theway not to do it is to blindly askquestiFs like: "How can you be sosure?" or "Are you 100% positive?"No lawyer can ‘effectively challenge aneyewitness any witness unless he orshe has laid the groundwork prior totrial. The only effective way tochallenge the eyewitness either beforethe judge or the jury is to use everypossible information gathering tech -

nique available from the entry ofcounsel into the case.

PRELIMINARY HEARING

Discovery may start, obviously, well inadvance of your discovery motion. Noeffective challenge can be mounted tothe eyewitness unless you know allthere is to know about the incident inquestion, the personalities involvedand the identification procedure usedby the police and prosecution. Therefore, we must take advantage of’ allopportunities for obtaining information.The preliminary hearing is the first.RCr 3.04. While the purpose of thehearing is not discovery, the relevanceof identification to probable cause isobvious. Therefore, counsel should be

able to obtain recorded eyewitnesstestimony which can and should betranscribed for use at trial. RCr3.16. Attention to detail at everyencounter with the eyewitness will paydividends later. In addition to aconplete description of the "perpetrator," the manner in which theeyewitness came to identify your clientis relevant to probable cause. RCr3.102. Thus, there should be noobstacle tO the obtaining of the basicinformation necessary to begin yourinvestigation of the identificationprocess.

Because the preliminary hearing isoverwhelmingly suggestive, Moore v.Illinois, 434 U.S. 220 1977, counselshould give serious consideration towaiver of the defendant’s right to bepresent at the hearing, at least duringthe’ appearance of any eyewitness, inappropriate cases. "While RCr 3.04appears to contemplate the actualpresence of the defendant, he wouldseem to have the power to make aknowing and intelligent waiver of theright to be present at any stage of theproceedings. The defendant wouldseem to have an even stronger casefor waiver of the right at a preliminary hearing, since he may waive thehearing altogether." Fitzgerald, 8Kentucky Practice, Criminal Practiceand Procedure § 336 at 143 n.27T78. In a case where the eyewitness has not yet been involved in acorporeal identification procedure: "Itis difficult to imagine a more suggestive manner in which to present asuspect to a witness for their criticalfirst confrontation..." Moore, 434U.S. at 229.

Aside from waiver of the defendant’spresence, other alternatives ‘should beconsidered. Moore ‘ is persuasiveauthority for an imaginative approachto the question of in-court suggestionand actually implies that effectivecounsel will pursue alternatives. "Forexample, counsel could have requestedthat the hearing be postponed until a

Continued, p. 17_1 A_

lineup could be arranged at which thevictim would view [the defendant] in aless suggestive setting... Short ofthat, counsel could have asked thatthe victim be excused from the courtroom while the charges were read andthe evidence against [the defendant]was recited, and that [the defendant]be seated with other people in theaudience when the victim attempted anidentification... Counsel might havesought to cross-examine the victim totest he identification before ithardened." Id., 434 U,S.at 230 n.5.Other examples of defense counsel’sactive participation in the identificationprocess will be discussed later.

DISCOVERY

Since in many cases the prosecution,for obvious reasons, will not choose toproceed by way of a preliminary hearing, alternative discovery proceduresshould be sought. A transcript of thegrand jury testimony of any eyewitnesscan be requested. RCr 5.16. If theprosecutor intends not to record grandjury testimony, a request and/ormotion can be ,made in advance. Butsee Lawless v. Commonwealth, Ky.,5 S.W.2d 101 1976. Or a requestcould be made after-the-fact for anarrative statement of the witnesses’testimony. [Kentucky Public AdvocateMotion File, MF, G-1.] The names ofeyewitnesses may be on the indictment.RCr 6.08. Information relevant toidentification may be obtained at a bailor bail reduction hearing. RCr4.023; RCr 4.401. Kuhnle v.Kassulke, Ky., 489 S.W.2d 833, 851973 [the defendant "should havebeen permitted to examine the chiefprosecuting witness at the hearing toreduce bail to’ the extent that theobject of such an examination had anyrelevant bearing upon the ctors thatthe court must consider. . ."] Occasionally, in homicide cases, relevant information will surface at a coroner’sinquest, at which testimony may berecorded. KRS 72.4201 and 2. Inapparently narrow circumstances a

deposition of an eyewitness may betaken. RCr 7.10. However, this mustbe done with caution as the depositionmay be admissible at trial and counselis rarely, if ever, prepared at anearly stage of the case to fully cross-examine an eyewitness. RCr 7.20.Even after indictment, a preliminaryhearing may be requested on equalprotection and due process grounds.See Hawkins v. Superior Court, 160i.Rptr. 43S 586 P.2d 916 1978.Contra King v. Venters, Ky., 595S.W’.2d 714 180. Finally, the Billof Particulars may be used to pin downthe exact time, location and ‘ durationof the incident to facilitate checkingthe lighting, weather conditions andother environmental factors relevant toany identification. RCr 6.22.

The discovery motion is the conventional mode of obtaining necessaryinformation. Even in areas where theprosecution reveals information withouta formal motion process, it is a goodidea to go on record, in appropriatecases, with a detailed discovery request regarding the identificationprocess. It is, sometimes not considered to be in the interest of theCommonwealth to make an effort toaccurately reconstruct what eactIyhappened. Especially in urban areas,a prosecutor or individual officer maynot know the exact nature of thepretrial identification procedures used.Without , a timely request for suchinformation placing an affirmative dutyof disclosure on the prosecution, thedefense may not "discover" importantinformation until too late at trial ornot at all.

Certainly, a clear request should bemade to disclose all eyewitnesses. Seegenerally Roviaro v. United StatiST353 u.s. 53 1957; Burks v. Commonwealth, Ky., 471 S.W.2d 298 1971.Although not specifically mentioned inRCr 7.24, information relevant to theidentification procedure used should bediscoverable at least to the extent’ that

Continued, p. 18

-17-

would enable counsel to make a suppression motion and subpoena allrelevant witnesses. Due process wouldcertainly require this. Stovall v.Denno, 388 U.S. 293, 302 1967J.Kentucky Practice, § 596-597.Counsel should make a detailed discovery request for the exact date,time and place of each lineup, showup7 ‘photo-display or "mug-book" andcomposite identification procedure. Arequest should be made for the identity of each person involved in eachprocedure, copies of any picturestaken of lineups or used in smallphoto-displays, copies of any composites.’pnd for the disclosure of anypositive or tentative identifications ofanyone IMF,D-53 #19-23]. A ‘defendant would have strong 6th and 14thAmendment arguments for the disclosure and production of this information which is crucial to an effectiveinvestigation of the identificationprocedure. But see Pankey v. Commonwealth, Ky., 485 S.W2d 5131972, where the Supreme Court held,on one hand, that it was error to denya defendant’s motion to produce aphoto-display from which a witnessmade contradictory identifications oftwo co-defendants. On the otherhand, the Court held that it wasproper to deny the defendants’ requestto produce pictures of a lineup sincethe Commonwealth denied there wereany mistaken identifications at thelineup. See generally Luttrellv.CommonweaItT Ky., 554 S.W.2d 75,791977, where the Court noted that theCommonwealth was required to producethe composite drawing. Counselshould also request disclosure prior totrial of all written and recorded statements by eyewitnesses [MF, W-2].But see RCr 7.26. ‘

The whole question of what cohstitutesexculpatory evidence in the eyewitnesssituation is a difficult question.Certainly both general and specificrequests for exculpatory informationshould be’ made of record. Because ageneral request may not be sufficientto put the prosecution on notice,

United States v. Agurs, 427 U.S. 97,106-107 1976, counsel must narrowhis motion and demand, in regard toeyewitness identification, "any posi -

tive, tentative, hesitant or "look-alike" identification, even if subsequently retracted, of any person otherthan tle defendant as the perpetratoror involved in the crimes in anymanner.. ." {MF, D-53 #35f]. Ifcounsel knows of specific eyewitnesses,the request may be narrowed further.Additionally, a detailed request shouldbé’h ade’ for disclosure of situationswhere a witness or potential witnessfailed to identify the defendant positively or tentatively when given anopportunity to do so. These two typesof evidence failure to identify defendant, identification of another areclearly exculpatory in nature and, ifnot already disclosed by virtue of thediscovery request relating to identification procedures, certainly must berevealed upon defendant’s motion todisclose exculpatory evidence. See

Grant v. Alldredge, 498 F.2d 376,2nd Cir. ‘ 19]4; Jackson v. Wainwright, 390 F.2d 288, 298 çsth Cir.1968. But see Sweatt v. Commonwealth, RV.,550 S.W.2 520, 523197], suggesting that a tentativeidentification of another may not beexculpatory; Pankey at 513, where theCourt stated by way of dicta: "That awitness was unable to identify one ormore of the appellants was not evidence of his innocence because failureto identify could be the result of lackof opportunity of observation, inabilityof the witness to recall or many otherfactors."

Another problem raised by Sweatt isthe suggestion that because the prosecutor didn’t personally know of thetentative identification of another, theCommonwealth was under no duty todisclose it. While this also appears tobe dicta, and the constitutionality ofsuch a rule quite doubtful, Barbee v.Warden, 331 F.2d 842, 846 4th C1F.1964, counsel should specifkallyrequest information ‘in the possession

Continued, p. 19

-18-

of police, naming individuals if possible. Kentucky Practice, § 594.[See MF, D-53 #1]. Finally, counselshould always file a "discovery inventory" for the record so that in theevent important information surfaçesduring or after trial the record willaccurately reflect exactly what information relevant to identification counseldid receive.

Because of the recognized narrownessof our discovery rules and appellatedecisions interpreting them, counselshould consider all possible techniquesfor gathering information ‘and takeadvantage of other procedural ruleswhose secondary effect permits disclosure of information. See KentuckyPractice, Chap. 15; MurrilT Kentucky

CriminalPractice, Chap. 9 1975,

INVESTIGATION

Information obtained through judiciallyrequired procedural devices or evenvoluntary prosecutorial compliance ismerely the tip of the iceberg. There isno substitute for legwork. Counselshould take advantage of our limitedinvestigatory resources and obtain,where possible, thorough interviewswith eyewitnesses prior to the initialcourtroom confrontation. Ideally, averbatim recording or a signed statement is the most valuable tool for lateruse as impeachment ammunition. Incases where the investigator is limitedby the attitude of the witness or othercircumstances, counsel must rely upona memorandum based upon the interviewer’s recall. In any event, thedefense will again have the eyewitnesson record prior to the courtroom

‘ confrontation - the essential prerequisite to effective cross-examination.

Again, attention to detail is f theutmost importance. The investigatorshould know that there is a twofoldpurpose to the interview: 1 gatheringinformation and 2 making the witnesscommit himself or herself early in thecase when the effects of suggestionmay be at a minimum. The investigator

must use, where practical, the sameexhaustive approach counsel would usein examining the witness at a preliminary hearing or suppression hearing.In an organized sequence the witnessshould be required to commit himselfon: 1 recall of the incident, 2description of the perpetrator, 3physical’ or psychological limitations ofthe eyewitness, 4 environmentalfactors at the scene, and 5 details ofall identification procedures. SeeDollar, Bending the Pointed Finger:The Defense lnvesUtor’s Approach toAn Eyewitness, National DefenderInvestigators Association NewsletterFall 1980, where it is suggested thatthe investigator use logical patterns inquestioning. For example, the interviewer should move the eyewitnessfrom head to feet in obtaining a description or in a chronological order indescribing a photographic displayi.e., "What is the first thing OfficerJones said to you..."?

The hostile witness who refuses tocooperate with the defense, often apolice officer involved in the identification process, is always a seriousproblem for counsel. The right of anaccused to interview potential prosecution witnesses has long been recognized. United States v. Long, 449F.2d 288, 295 8th Cir. 1971. However, no witness is required to speakto either the defense or the prosecution. United States ex rel. Trantino.v. Hatrak, 408 F.Supp.476 D.N.J.¶976. The situation counsel mustwatch for is when the prosecutiondirectly or indirectly suggests "to awitness that he not submit to aninterview by opposing counsel."Gammom v. State, Tenn., 506 S.W.2d188, 1901973. This is objectionableconduct and should be brought to theattention of the court. American BarAssociation Standards Relating toProsecution Function § 3-3.1c 1978[Motion to Obtain Relief from Prosecutor Obstructing CommunicationBetween Prospective Witnesses and the

Continued, p. 20

-19-

Defense, ME, W-5]. If a witness flatlyrefuses to be interviewed, counselwould have a stronger argument forpretrial disclosure of written or recorded eyewitness statements, even ifnormally not permitted. RCr 7.26.Finally, a witness’ refusal to talk tothe defense should be accuratelydocumented in a manner admissible attrial. Jurors sometimes do notapprove Lof stonewalling on the part ofpolice officers or eyewitnesses.

As a last step in the investigatoryprocess, it is often in an appropriatecase desirable for counsel to talk tothe eyewitness prior to meeting incourt. In addition to obtaininganother statement, this permits counselto let the witness know that defensecounsel is not necessarily the "enemy"and may counteract the eyewitness’natural tendency to embellish testimonyin an effort to help the cause of lawenforcement. Counsel should alwaysdiscuss the case with a potentialwitness in the presence of a thirdperson so as not to put himself orherself in the position of having totestify should the witness modifydetails.

As a final note, both counsel and hisinvestigator should be on guard foraccidental or non-prosecutorial identification procedures which may bedisclosed during investigation. In arecent case, our client’s pictureappeared in the newspaper which akey witness sometimes read. Merelybecause the police do not conduct theidentification procedure does not meanthat a ,due process violation has notoccurred. As distinguished from 4thAmendment search and seizure issues,the exclusionary rule relating to identification procedures is not a sanctionfor police misconduct. " Reliability isthe Iinchpin in determining the admissibility of identification testimony.Manson v. Brathwaite, 432 U.S. 98,114 197. See Green v. Loggins,614 F.2d 219 Th Cir. 190, holdingthat an accidental show-up defendantand eyewitness placed in same cellwas so impermissibly suggestive thatthe introduction of the identificationwas a denial of due process.

In the next issue of the Advocate wewill conclude by examining defenseinvolvement in the identification process, the prosecution’s duty to preserve evidence of the identificationprocess and some suggestions regarding the suppression hearing and trial.

KEVIN McNALLY

THE ADVOCATEOffice for Public AdvocacyState Office Building AnnexFrankfort, Kentucky 40601

BULK RATEU. S. Postage PaidFrankfort, KY. 40601Permit No. 1

Printed with State FundsKRS 57.375

ADDRESS CORRECTION REQUESTED