advocate-vol 20-no 5-entire issue (9-1998) · sage of the first civil rights law south of the...

DEFENDER LEGISLATIONSIGNED BY GOVERNOR

SEP 5

Governor Paul Patton signs HB 337, which made 8 changes to KRS Chapter 31, the public defenderstatutes. It was sponsored by Rep. Kathy Stein of Lexington, a former Fayette County Legal Aidattorney and assistant county attorney. Public Protection & Regulation Cabinet Secretary LauraDouglas, Public Advocate Ernie Lewis, Deputy Public Advocate Ed Monahan and Dave Norat,Director of DPAs Law Operations Division look on.

DonaldWintersheimerSupremeCourtJustice

ISTAMPING OUT ALL "1

VESTIGESOF RACISMIN OUR JUSTICE SYSTEM

I * **

. APPELLATE ORAL

RichardH.C. Clay ARGUMENTSKBA President

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t THE ADVOCATEJournal of Criminal Justice Education & Research Volume 20, No. 5, September 1998

The Advocate, Vol. 20, No. 5 September 1998

Jj’flfr oV euMLuiSPages

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- Stamping Out All Vestiges ofRacism in Our Justice System 4 - 10

THE KENTUCKY DEPARTMENT OFKentucky Racial Justice Act II PUBLIC ADVOCACY ON THE WEB

HB4SS IsA Gamble 12-13DPA Home Page at http://dpa.state.ky.us/ contains a

>> Effective Courtroom Presentation.... 14-15 history of defenders in Kentucky; DPA’s mission andinformation about defendercaseloads; the Public Ad

> The Criminal Defense Lawyer as vocacy Commission; the agency’s 4 divisions: Trial,Effective Negotiator: A Systemic Post-Trial, Protection & Advocacy, Law Operations;

Approach 16-31 Kentucky defender funding relative to national defender funding; maps of counties covered by full-time

Plain View: Search & Seizure Law.... 32-36 defenders and prosecutors; the agency’s core values;and links to defender employment opportunities; the

Kentucky’s Litigation Institute 36 National Legal Aid and Defender Association’s homepage and other links.

x’ West’s Review 3 7-40Criminal Law Links provides links to news, opin

‘ DPA Personnel Changes 41 ions, reference materials, medical information, searchengines and other resources that are useful to the

>- Changes in TIS 42-45 criminal law practitioner.

DPA Employment Opportunities 46 DPA Education site is located athttpi/dpa.state.ky.us/-rwheeler/train.htm , or can be

> H B 455 Demands Cooperation reached through a link from the Criminal Law Linkshome page. This site includes links to CLE resources

> "Responsibility" & the Insanity on the web and announcements ofupcoming DPADefense 5455 education and other educational events related to

criminal law.> Kentucky’s DPA Annual Conference. 56-62

DPA Employment Opportunities: are at:‘> Retroactivity & the 1997 Changes to http://dpa.state.ky.us/career.htm

the Laws Affecting Juveniles 63-64

The Advocate: is now available atProfilesin P&E 65 http://dpa.state.ky.us starting with the May 1998 issue.

> Redefining the Mission in theWe hope that you find this service useful. If you have

Post-Conviction Branch 66-67any suggestions or comments, please send them toDPA Webmaster, 100 Fair Oaks Lane, Frankfort,

> Bell County Becomes 52nd County40601.

Covered by Full-Time Defenders 68

DPA Telephone Attendant Menu 69

>> Kim Allen Appointed Head ofKy. Criminal Justice Council 70-73 DEFENDERS:

PUTTING A FACE> When It Can’t Wait for Appeal 74-77

ON JUSTICE> Capital Case Review 77-86

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TheAdvocate,Vol. 20, No. 5 September 1998

FronitFEdit.rRace pervades our Kentucky criminal justice system. Criminal defense attorneys understand thathorrible reality best. We see it. We feet it. We knowit. While we may not be able to prove it very oftento the level of sociological, moral or legal levels ofproof, it is tangible. Lest anyone disagree about thereal presence of racism, contemplate whether anydefendant would want to have black skin at a trialor sentencing, instead of white skin.

KBA President Dick Clay calls us all to get onwith confronting and correcting racism.., now. Defenders have an obligation to illuminate the realitiesof racism in Kentucky’s criminal justice system.DPA is conduct a day of education for criminal defense practitioners on the Kentucky Racial JusticeAct on October 27, 1998 in Louisville. Mark yourcalendars to attend.

On Our Cover: Kentucky’s Public DefenderStatute was substantially updated when GovernorPaul Patton signed HB 337 into law. We have abetter statute to represent our 100,000 clients withthanks to Representative Kathy Stein, SenatorErnesto Scorsone, and Public Advocate ErnieLewis.

Persuading. Our nationally recognized week-longLitigation Practice Institute is adding two tracks,appellate & post-conviction, to the longstandingtrial track. Space is limited. Apply early if you wantto attend. There is no better place in Kentucky tolearn how to be a more successful litigator.

Edward C Monahan, Editor. The Advocate

TheAdvocateThe Advocate provides education and research for persons serving indigent clients inorder to improve client representation andinsure fair process and reliable results forthose whose life or liberty is at risk. It educates criminal justice professionals and thepublic on its work, mission and values.

The Advocate is a bi-monthly January,March, May, July, September, Novemberpublication of the Department of Public Advocacy, an independent agency within thePublic Protection and Regulation Cabinet.Opinions expressed in articles are those of theauthors and do not necessarily represent theviews of DPA. The Advocate welcomes correspondence on subjects covered by it. If youhave an article our readers will find of interest, type a short outline or general descriptionand send it to the Editor.

Copyright © 1998. Kentucky Department of Public Advocacy. All rights reserved. Permission forreproduction is granted provided credit is given tothe author and DPA and a copy of the rcproduction is sent to The Advocate. Permission for reproduction of separately copyrighted articles must beobtained from that copyright holder.

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Edward C. Monahan, Editor: 1984 - presentErwin W. Lewis, Editor: 1978-1983Cris Brown. Managing Editor: 1983-1993Tina Meadows, Graphics. Design, Layout &

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The Advocate,Vol. 20, No. 5 September 1998

STAMPING OUT ALL VESTIGES OFRACISM IN OUR JUSTICE SYSTEM

Lexington, KY, June 15, 1998 To prepare forthis speech, I read four speeches written by previous KBA presidents for delivery at this AnnualPublic Defender Conference. While each contains a different emphasis, they are all marvelously written tributes to the Department of Public Advocacy and its vital role in providing effective legal counsel to indigent defendants facing a loss of liberty. I cannot improve uponthese speeches, and consequently will not elaborate upon the obvious: that what you do and theexceptionally professional manner in which youapproach your task is fundamental to the rule ofjustice in this Commonwealth. Perhaps I shouldsimply thank you and sit down.

If I did that, however, I would miss the opportunity to discuss with you the issue of perceptionsof racism in Kentucky’s justice system. This isan issue that has weighed heavily on my mindever since a notable series of articles analyzing

I realize that currently lawyers and investigativereporters are at the bottom rungs of the ladder inpublic image. You and I know, however, thatthese matters are inherently cyclical. ReadKatharine Graham’s recent autobiography. Personal History, and note her justifiable pride inthe role the Washington Post played in breakingand then developing the Watergate story for thepublic. Read Taylor Branch’s history of the civilrights movement: the Pulitzer winner, Partingthe Waters, and the just published Pillar of Fire.You will develop a renewed appreciation andpride in the complementary roles that the investigative press and great lawyers play at times ofconstitutional crisis and infringement of libertiesin this Country.

the issueLeader inJournal in

appeared in the Lexington HeraldDecember, 1995 and in the Courier-January, 1996.

Facing the Different Standards of Justice

I was privileged to read Kentucky Bar President, Dick Clay’s very fine speech to the Department ofPublic Advocacy given on Monday, June 15, 1998. It was a moving testimonial to the need for our profession to realistically face the different standards of justice which continue to plague Kentucky. Dickmentioned seeing Lee’s To Kill A Mockingbird. starring Gregory Peck as Atticus Finch in 1956 in asegregated theater in my home town of Hopkinsville. I agree that it was a marvelous movie on the verynature ofjustice. It obviously made a strong impression on Dick which influenced his very fine speechpointing out the areas of racial insensitivity and overt racism which exists in Kentucky’s justice system.

A generation earlier, as a young lawyer in Flopkinsville, I was distressed about the double standard ofjustice in murder cases. If you were African-American and were charged with killing a white person.justice was swift and severe resulting in a death sentence. If you were a white person accused of killingan African-American and could hire a good lawyer, you had a good chance of being acquitted or receiving a light sentence. If an African-American killed an African-American and the accused wasneeded to cut tobacco or harvest a crop, justice sometimes winked at the crime and allowed the defendant to be freed to work for the white farmer. This situation convinced me as Governor to support passage of the first Civil Rights Law south of the Mason-Dixon Line.

Dick Clay’s article should be read by every Kentuckian and certainly by every member of the Benchand Bar in Kentucky.

- Former Governor Edward T. Breathitt, Wyatt, Tarrant & Comb.cLouisville, Kentucky

The Advocate, Vol. 20, No. 5September 1998

It is the issue of fair and impartial justice Ibr allcitizens, regardless of color. or for that mattersex, or any other of the myriad ways in whichwe label people, that I want to discuss with youtonight. I think back to my growing up years inHopkinsville. a city that was in the early 1960sstill profoundly segregated in spirit. It was therein the Sixth grade that some friends and I sawone of the most important movies ever producedon the very nature of justice--the production ofHarper Lee’s To Kill A Mockingbird. starringGregory Peck as Atticus Finch. The irony is thatwe saw that inspiring production inHopkinsville’s Alhambra Theatre, which hadseparate drinking fountains and a balcony wheremen and women of African descent were at thattime expected to sit. I don’t mean to singleHopkinsville out. A series of ugly racial incidents, largely focused in the public high school,forced that beautiful and most southern of Kentucky cities to start coming to grips in the lateI 960s and early I 970s with race-related issues.Hopkinsville, in many ways, now sets an exam

pie of how caring men and women of both racescall, over time, create a climate where racial tensions diminish and understanding grows.

I guess you could say that the experiences of myyouth alert me to perceptions of racism in ourjustice system, as do recently reported instancesof hate across the nation in the form of churchburnings and murders where racism is an underlying motive. Witness what happened lastweek in Jasper, Texas, when some very twistedpeople took a 49-year-old black man namedJames Byrd Jr. for a ride. They then beat himsenseless, chained him to the rear bumper anddragged him to his death, severing his head andan arm in the process. Yesterday’s New YorkTimes editorial page noted that malignant actssuch as this do not shape the larger culture, butthey stun it, and inform it. To paraphrase: "InJasper, the community has rallied around asheriff bent on color-blind prosecution of thislynching by pickup truck... The legacy of JamesByrd, bless his soul, could be purifying and real,

Will We Be Able to Make Progress?

It was my distinct privilege, as a member of the Public Advocacy Commission, to hear the address byDick Clay at the 26th Annual Public Defender Conference. It was probably the most thoughtful, hopeful. and inspiring address I have heard in recent years. Hooray! for Mr. Clay in making the issue ofRacial Justice a cornerstone of his year as President of the Kentucky Bar Association. Having saidthat, what do I think will be the result of this effort? Mr. Clay initially considered the significant enactment of the Racial Justice Act, which applies only to death penalty cases. But the problem of racialjustice goes far beyond death penalty cases. As Mr. Clay said, while studies have established no actual hard documentation of specific instances of racism in Kentucky courts, there is a significant,widespread perception of racial injustice. Dealing with a perception may very well be like dealingwith a ghost.

It is a fact that there will be little measurable progress on this issue during Mr. Clay’s short term inoffice. It is also a fact, that beginning the process through the study undertaken under the leadershipof the Kentucky Supreme Court, the series of town hall meetings, and through passage of the RacialJustice Act has been very important. It is a fact that efforts made under Mr. Clay’s leadership asPresident of the Kentucky Bar Association will be important in maintaining the momentum towardelimination of not only the fact of racial injustice, but just as importantly the perception that there isracism in Kentucky’s courts. However, it is would be naive to think that these efforts will suddenlytransform our criminal justice system or the perceptions which people have about it.

Racism exists in the hearts and minds of mankind. It can only be eliminated in our system of justicewhen all persons, not just those engaged in the criminal process, open their hearts and minds. Mr.Clay’s thoughtful and challenging address continues important dialogue on the issue. It is my hopethat his address will be thoughtfully considered by all persons. His message is important.

- William R. Jones, Professor of Law EmeritusChase College of Law


an allirmation that justice can he certain andequal in the former heartland of’ segregation."

It is against this personal and cultural backdropthat I consider one of the most significant enactnients of the 1998 Kentucky General Assembly to he the Racial Justice Act. As you know,this legislation enables a defendant in a deathpenalty case to introduce statistics designed toshow patterns of racial bias in other death penalty cases. The Act provides that the defendant

shall state with particularity how evidencesupports a claim that racial considerationsplayed a significant part in the decision to seek adeath sentence in his or her case."

In the 1998 conference program for this 26thAnnual Public Defender Education Conference,the following statement is made: "This successmust be followed by vigorous advocacy by defenders. Training and brain storming on how topresent effectively claims of prosecutorial racism in capital cases must occur."

I rather expect that similar discussions are underway among the Commonwealth Attorneys ofKentucky. In the future, the Racial Justice Actwill be the bare bones upon which the flesh ofwell-advocated and carefully considered judicialopinions will be built. It will be fascinating tome, as a civil litigator, to see how this is interpreted in the future.

Again, the Racial Justice Act is a significantpiece of legislation. But will this Act, despite itsgrand title, effectively eliminate perceptions ofracism in Kentucky’s justice system? No.There are many more issues to be addressedover time by all of us: Bench, Bar, participantsin the system, and the press.

The newspaper articles I alluded to earlier provided impetus for the Act. Following those articles, a foundation on whose board I sit. TheNorton Foundation of Louisville, along with theState Justice Institute, gave $88,500 to the Administrative Office of the Courts to fund a studyon racism. A survey of 10,000 people, conducted by a Blue Ribbon Racial Bias TaskForce, established no actual hard documentationof specific instances of racism in Kentuckycourts. Nevertheless, the study documented significant, widespread perceptions of racial biasamong those currently incarcerated for felonies,in misdemeanor courts, among small claims litigants and among domestic violence defendants.

Such perceptions cannot be permitted to undermine the trust and respect that men and womenin this Commonwealth have for our courts. Ipublicly thank Chief Justice Stephens, ChiefJustice-Elect Lambert and the other members ofthe Supreme Court for their leadership in undertaking this study, and for the series of townhall meetings that accompanied it. I am pleased

Perception Exceeds Reality

I appreciate the opportunity to review the speech KBA President, Dick Clay made at your recentconference. Clay is correct that there is a perception that racism pervades our Criminal Justice system. This perception erodes public confidence in our legal institutions. However, as Clay mentioned, a recent study by the Norton Foundation along with the State Justice Institute found "no actual evidence of specific instances of racism in Kentucky Courts." I don’t conclude from the studythat all is well but I believe the perception exceeds the reality.

I fear the new "Racial Justice Act" with its reliance upon statistical evidence will result in a meaningless "battle of statisticians" and more appeals further eroding public confidence in the system.Any vestige of racism will be eliminated only by each of us as prosecutors or defense attorneys being conscious of the perception and making sure it is not a reality on a day by day individual casebasis.

- Phil Patton, Commonwealth AttorneyBarren & Metcalfe Counties

TheAdvocate,Vol. 20, No.5September 1998

to announce that the Kentucky Bar Association,in conjunction with the Kentucky SupremeCourt, will sponsor a Justice Initiatives Conference in late 1999. It will address issues involving justice for the citizens of this Commonwealth, including but not limited to, areas wherethere has been overt, covert, or unintentionalracial injustice. IOLTA has provided $30,000for this conference. The planning for it, underthe leadership of Bar Governor Steven Catron,will take place during my tenure as president ofthe KBA, and the conference will then takeplace shortly thereafter. The conference will bein direct response to a call by the National Conference for Chief Justices that such conferencestake place in all 50 states. The conference willonly be as good as its participants and the ideasthey bring to the table. All too frequently, conferences result in wonderful talk, marvelousstudies, but precious little, if any, action.

What are some of the areas where racial insensitivity or bias may be perceived to exist in Kentucky’s justice system? In raising these questions for public discussion I want to emphasizethat I am not casting blame. That would be apresumptuous exercise for me, as a civil lawyerwith no experience in criminal law, to undertake.Perceptions do not always constitute reality. Wedo not serve justice by irresponsibly raisingquestions in a manner calculated to infer thatthey are real. I believe that we, as officers ofthe court, must examine at least the followingareas:

* Are there perceived discrepancies in thesetting of bail for black and white defendants, especially at the district courtlevels?

Our Work is Cut Out for Us

I have been asked to comment briefly on my friend Dick Clay’s address to the Public Defender Conference. Specifically, Ed Monahan asked me to "better inform our readers of the reality Dick Clay isconfronting." I have confronted the reality, myself, and our work is cut out for us.

First, I applaud and echo Dick’s comments and exhortations, especially his conclusion that true liberty and justice for all can only be attained if all vestiges of racism, including the perceptionof racism, are erased.

As Jefferson County Commonwealth’s Attorney, one of my greatest concerns was the perception ofracism in our system. As lawyers we understand, for instance, that the appearance of impropriety canbe as bad, or worse, as impropriety itself. The same is true with racism. Our system ofjustice reliesnot so much upon arrests and convictions as it does on faith and trust. In this democracy all of thepolice, judges and jails in the world could not preserve our most cherished principles if our citizensdid not have faith in the system, or trust in its fair operation. Today, many lack that trust.

Respect for the system - the perception ofjustice - must begin at the top. The example bar leaders.prosecutors and defenders set will be followed, and closely observed. That is why, when a strongerRacial Justice Act was defeated in the 1996 legislature. I was surprised and disappointed to find myself alone among all of Kentucky’s chief prosecutors in support of the law. Their arguments - that thelaw was unnecessary, that they did not institute racist prosecutions, that convictions would be moredifficult to obtain - were well-made but missed the point. Lawmaking is often about messagesending, and the message sent by these bar leaders those most intimately involved with the criminaljustice system in our state - was the wrong one to those who already felt disenfranchised and uncomfortably wary of the courts.

That the law eventually passed is a tribute to the work and perseverance of other bar and communityleaders. This work must continue. Good luck.

- Marc Murphy, Jefferson County Commonwealth Attorney


* If so, are these perceived discrepanciesparticularly pronounced for black andwhite women?

* Are there perceptions the police are notscrupulously fair in how they treat suspects? For example, are there perceptions that young black males in groupsof two or more are singled out by policefor uneven treatment? Do perceptionsexist that black men and women aresubjected to unfair pat-downs orsearches and seizures?

* What about treatment by correctionalofficials and police while a defendant isin custody? Are there perceptions ofrace-based discrepancies in the guise ofverbal or physical abuse?

* Are there perceptions of unfair treatmentat the correctional level?

* Are all sentences, be they felony murders or not, handled without regard torace?

* Are there perceptions that the laws, particularly as they relate to drug offenders,are somehow not uniformly enforced?

* Are courthouse personnel, such asclerks, judges’ secretaries and sheriffs,fair and even in their treatment of allparticipants in the system, regardless ofrace or status?

The recent Racial Bias Task Force study examining the perceptions of court-users on the fairness of the Kentucky Courts indicates that significant percentages of minority defendants believe bias exists in many of the aforementioned

areas. If indeed perceptions of racial bias or insensitivity exist, then how do we, as responsibleadvocates and judges, dispel them if they arefalse, and eradicate the problems if the perceptions are true? Isn’t this what the pursuit ofjustice is all about? I believe that solid investigative journalism, spirited and informed publicdiscussion, heavily debated legislation, and passionate advocacy in the Courts ultimately willaddress these issues. Justice will result. It always. over time, does.

While we are talking about matters of race, wemust not ignore the fact that out of 12,500 memben of the Kentucky Bar Association, roughlyISO to 200 are black. This is a terrible statistic.It is not my fault, It is not yours’. It is the resultof a nation where education has been undervalued for both black and white children, and wherethere has not been a long tradition of large numbers of black lawyers.

What about the public defender staffs themselves? In Jefferson County, there are 45 lawyers on staff -- only one is black. In FayetteCounty there are none.

In Jefferson County. a rough estimate of the clientele served by the public defenders would be50%50%blackwhite. Some estimates I haveheard go up as high as 70%30%. The images ofthe public defenders in the eyes of those theyserve might improve in many instances if thelawyers representing them looked like them.

Similarly, perceptions-or misperceptions-ofKentucky’s justice system would change dramatically, were there significantly more blackjudges and court administrative personnel.

This must change. It will only happen -- but itmust happen -- over time. There must be intensive efforts by the Bar and the judiciary to iden

New HopeDick Clay’s speech to the Department of Public Advocacy points anew to the ongoing struggleto end perceptions of racism in Kentucky’s judicial system. Much progress has been made, but,as Clay points out, the 1998 Racial Justice Act offers new hope that we can reach "fair and impartial justice" for all Kentuckians, regardless of race, creed, sexual orientation, or age.

- Marion B. Lucas, Professor of History, Western Kentucky University

The Advocute,Vol. 20, NoS September 1998

lily promising African-American students at theelementary. junior and high school levels and.quite simply. to indoctrinate them with the desire to become great lawyers. One of the mosteffective things that we, as good lawyers can do.is to look lhr opportunities to work with our local schools to help educate students on fundamental concepts of liberty and justice that wetoo frequently take for granted. As lawyers Ithink we have a hounden duty aggressively torecruit minority students for law schools and inemployment opportunities.

An example of a useful program would be thatset up by the Kentucky Bar Association, Louisville Bar Association, Jefferson County PublicSchool System, and Louisville Chamber Commerce, to provide jobs for minority youth in lawfirms, corporate law departments and governmental agencies in Jefferson County. This program was instituted back in 1993, and has averaged somewhere between 12 and IS high school

students a year -- most of whom come fromCentral High School’s Law Magnet Program.These numbers aren’t high. and it remains to heseen how many lawyers we will actually creatc.

We must keep trying. We must never give up.As lawyers, we have an ethical obligation to ourprofession and an even deeper obligation to ourcountry to help raise up future Thurgood Marshalls, Leon Higginbothams. Harry Edwards’,Johnny Cochrans, and assuming you believe inan open and free-spirited intellectual debate inboth the black and white communities ClarenceThomas’s, to pursue justice not only at exaltedlevels, but right here on the front line. We alsohave a duty as lawyers and judges to stamp outall vestiges of racism in our justice system, bethey real or mere perceptions. Only in that waycan we truly provide liberty and justice for all.

Richard ftC. Clay, KBA President101 S. 5th Street, Suite 2500Louisville, KY 40202Tel: 502 581-8000; Fax:502581-8123 U

Eliminating the Fact of Racism

Our Kentucky Supreme Court recently said that to preserve the trust and respect of the citizenry for thejudicial system, counsel should be disqualified when there is an "appearance of impropriety." Love/I vWinchester, 941 S.W.2d 466 Ky. 1997. Dick Clay’s eloquent address makes the point that there is a widespread perception of racism - surely a more serious concern than an "impropriety" -- which underminesthe trust and respect of African-Americans for our courts. The question is what we -- as lawyers, judges.and legislators--can do to eliminate not only the fact, but the perception of racism in the judicial system.

The 1998 Racial Justice Act is a good start. While impacting only a few cases, this act makes it clear thatthe legislature does not want race to be a factor in death penalty litigation. Some other suggestions:

* The Kentucky Supreme Court could use section 2 of the Kentucky constitution to make it easier toprove claims of discriminatory law enforcement. By disallowing discovery and refusing to infer discriminatory intent from pattern evidence, the United States Supreme Court has made it virtually ml-possible for a defendant to prove that an officer’s actions were racially motivated in violation of theEqual Protection Clause of the Fourteenth Amendment. Waytev. United States, 470 U.S. 598 1985,United States v. Armstrong, 116 S.Ct. 1480 1996. Operating under their own constitutions, however,state courts can and should receive pattern evidence to prove selective enforcement, and should allowdiscovery to obtain relevant data. In a recent New Jersey case New Jerseyv. Pedro Sow the trialjudge suppressed evidence seized by troopers patrolling the New Jersey Turnpike on the basis of statistics showing that, while 15% of speeding motorists were African-American, 46% of motoristsstopped for speeding were African-American. This case, and others like it, are discussed in Maclin,Race and the Fourth Amendment, 51 Vand.L.Rev. 333 1998. Since discrimination is difficult to

The Advocute, Vol. 20, No. SSeptember 1998

Ract’ ,iid the /"ourtl, Anwnd,nent, SI Vand.L.Rev. 333 1998. Since discrimination is difficult toprove by direct evidence, our Court should hold that a prima facie case of discrimination can be madeby statistical analysis. After the Supreme Court’s decision in Whrcn v. United States, 116 S.Ct. 17691996, all drivers are subject to pretext stops 98% of motorists speed; it is the African-Americanyoung male who is most likely to be stopped for "DWB" Driving While Black. The purpose of asuppression motion is to deter police misconduct. To deter selective enforcement, our courts shouldallow litigants discovery of police files to ascertain whether there is a pattern of selective enforcement, and he willing to infer discrimination in a specific case from pattern evidence.

* The Kentucky Supreme Court could hold, as a matter of state constitutional law, that there must be arational neutral basis for a peremptory challenge which appears racially motivated. The United StatesSupreme Court recently held that the Fourteenth Amendment Equal Protection Clause does not require an attorney to give a rational reason for the exercise of an apparently racially-motivated challenge: a trial court may accept any explanation, no matter how implausible, so long as it is raceneutral. Purkett v. EIem, 514 U.S. 765 1995. Since a trial court’s acceptance or rejection of an attorney’s explanation is reviewable only on an abuse of discretion standard, Purkett effectively places racial discrimination in jury selection, as a/eden,! constitutional matter, beyond the supervision of theappellate courts. The Kentucky Supreme Court, however, could interpret the equal protection guarantee of the Kentucky constitution to require a plausible explanation for challenges which appear tobe racially motivated.

* We should do what we can to ensure that jury venires adequately represent the relevant African-American population. I recently served on two venires in Fayette County. each consisting of abouttwo hundred jurors. African-Americans were not proportionately represented on either venire. I don’tknow why, but apparently under-representation of minorities is common. In Detroit, for example, thefederal court attempted to rectify the problem by striking every fifth non-African-American. However, the Sixth Circuit held that the plan violated the Equal Protection Clause. United States v. Ova/Ic,136 F.3d 1092 6" Cir. 1998. Perhaps a carrot and stick approach to jury service would cause ahigher percentage of those summoned to appear and serve -- better pay and facilities, and less tolerance for no-shows and excuses.

* We should be reluctant to consider race or gender in "casting" a trial team. Selecting an attorney onthe basis of race or gender degrades the attorney and assumes that jurors might be influenced by impermissible factors. Batson v. Kentucky, 476 U.S. 691 1986 assumes that jurors will not be influenced by matters of race; that jurors can and will put aside their biases when they enter the box.Casting on the basis of race or gender is inconsistent with that premise.

* We should do what we can to encourage African-Americans to become police officers, lawyers, andjudges. I’ve always thought that the best rationale for affirmative action in law school admission is toincrease the number of African-American judges, prosecutors and defense counsel, and thereby makethe justice system more closely mirror society. In the state of Kentucky, in too many cases the defendant is African-American and all the other players are white. No wonder there is a perception of racism. We should encourage bright, hard-working African-American young people to consider a career in law or in law enforcement, and provide financial assistance to those in need.

- William H. Fortune, College of LawUniversity of Kentucky, Lexington, KY 40506-0048

Page JO

The Advocate,Vol. 20, No. 5 September1998

SECTION 1. A NEW SECTION OF KRS CHAPTER 532 IS CREATED TO READ ASFOLLOWS: I No person shall be subject to or given a sentence of death that was soughton the basis of race.

2A finding that race was the basis of the decision to seek a death sentence may beestab

lished ji the court finds that race was a significant factor in decisions to seek the sentence of death in

the Commonwealth at the time the death sentence was sought

3 Evidence relevant to establish a finding that race was the basis of the decision to seek a

death sentence may include statistical evidence or other evidence, or both, that death sentences were

sought significantly more frequently:

aUpon persons of one race than upon persons of another race; or

*1 As punishment for capital offenses against persons of one race than as punishment for

capital offenses against persons of another race.

The defendant shall state with particularity how the evidence supports a claim that ra4

cial considerations played a significant part in the decision to seek a death sentence in his or her case.

Theclaim shall be raised by the defendant at the pre-trial conference. The court shall schedule a

hearingon the claim and shall prescribe a time for the submission of evidence by both parties. If the

court finds that race was the basis of the decision to seek the death sentence, the court shall order that

adeath sentence shall not be sought

‘5,The defendant has the burden of proving by clear and convincing evidence that race

wasthe basisof the decision to seek the death penalty. The Commonwealth may offer evidence in re

buttal of the claims or evidence of the defendant

SECTION 2. A NEW SECTION OF KRS CHAPTER 532 IS CREATED TO READ ASFOLLOWS: Section 1of this Act shall not apply to sentences imposed prior to theeffectivedate of this Act.

SECTION 3. A NEW SECTION OF KRS CHAPTER 532 IS CREATED TO READ ASFOLLOWS: Sections 1to 3of this Act shall be cited as the KentuckyRacial Justice Act

Employment, Incarceration, Kentucky Death Row,Kentucky General Population Statistics by Race

DPA Justice Cabinet Kentucky Kentucky KentuckyAll Staff All Staff Death Row Prisoners Population

White 93.5% 92.8% 78% 61% 92.3%

Non-White 6.5% 7.2% 22% 38% 7.7%

Page II


HB 455 Is A GAMBLE

Sentencing Changes are Major

1-louse Bill 455, also know as the Governor’sCrime Bill, has as its most prominent feature aradical shift in major sentencing provisions inthe Commonwealth. Some of these provisionsare as follows:

I. Violent offenders must serve 85% oftheir time prior to being eligible for parole.

2. Considering probation and probationwith an alternative sentencing plan hasbecome mandatory. In fact, the grantingof probation or probation with an alternate sentencing plan for nonviolent offenders has become virtually mandatory.

3. Nonviolent persistent felons are eligiblefor probation under many circumstances.

able to grant di-the objection of

5. Probation and parole officers will beresponsible for developing alternativesentencing plans, identifying resourcesor the lack of resources.

We Are Imprisoning More Longer

This is a radical change in sentencing law in thisCommonwealth. First, the Commonwealth iscommitted to incarcerating a lot more people fora lot longer. When I began to practice law in1977, there were approximately 4000 peopleincarcerated in Kentucky. Parole eligibility on asentence from 40-life was 6 years. There was noviolent offender statute. That changed significantly in 1986 with the passage of KRS439.3401. Today, over 14,000 people are incarcerated. The projection is 22,000+ persons in

carcerated in 2002, and that projection was madebefore HB 455 passed. Off in the future, we willhave persons serving 50-70 year sentences, withthe parole eligibility of 42-59 years. This will beextremely costly. Built in is a financial timebomb for the Commonwealth. Unless...

Will Probation by Judges Really Increase?

That is where the gamble comes in. The 85%provision is mandatory. The gamble of HB 455is that the 85% provision will be paid for by thegranting of probation of most nonviolent felons.Yet, that provision is discretionary with circuitjudges. The big question of HB 455 is whetherthe strengthened language virtually mandatingprobation will be sufficient to alter the sentencing practices of circuit judges. That is unknown.What we know, however, is that if the greatmajority of nonviolent felons, including PFOs,are not granted probation, then we will have lostthe gamble.

Changes Needed by Many

Circuit judges are not the only ones who arecalled upon to change their practices by HB 455.These other players in the system will also needto alter their practice:

I. Defense lawyers will need to becomemore adept at developing and presentingalternatives to incarceration.

2. Probation and parole officers will needto shift their focus away from revocation, away from preparing PSI’s exclusively, and toward identifying and developing alternative sentencing plans.

3. Prosecutors must begin to redefine victory. At present, many prosecutors define victory as someone going to prison.Prosecutors have immense power in oursystem: they can demand prison in every

4. Circuit judges will beversion motions overthe Commonwealth.

Tue Advocate, Vol. 20. No.5 September 1998

instance and by so doing put pressure onjudges to deny probation. If this continues to he the paradigm, then we havelittle chance to win the gamble posed byI-lB 455.

4. Legislators must resist the temptation tocriminalize everything, and to makefelonies of everything. Legislators mustalso give this new law time to work. Ifit does not work, then legislators need togo back to reconsider the 85% provision.

5. The newly formed Criminal JusticeCouncil needs to he vigilant to seewhether the gamble of HR 455 is payingofI or whether the Commonwealth islosing.

Ernie Lewis, Public Advocate100 Fair Oaks Lane, Suite 302Frankfort, Kentucky 40601Tel: 502 564-8006, #108; Fax: 502 564-7890E-mail: elewisumail.pa.state.ky.usU

lO 5 8.5

tO 17

Parole Eligibility for Violent Offenders in years

20

40 12 34

50 12 42.5

70 12 59.5

Life 12 20

Capital Life Without for 25 Life Without for 25

Capital Death Life Without Parole

Capital Death

SENTENCE CURRENT

30

UNDER HB 455

12 25.5

The Advocate, Vol. 20, No.5 September 1998

EFFECTIVE COURTROOMPRESENTATION

- JUSTICE DONALD WINTERSHEIMER

The importance of effective oral argument at theappellate level cannot be overemphasized. Obviously, the principal purpose of the oral advocateis to give judges a better understanding of yourposition, your interpretation of the facts and thelegal theory upon which you expect to prevail.For judges, oral argument brings the case intobetter focus and provides a time line in which thecase is generally decided.

The traditional fundamentals must be observed inapproaching any oral argument. The chief working tool in any oral presentation is a well-organized and concise brief Certainly oral argument is important in the persuasion of the court,but the brief is a permanent record of your position and remains with the court throughout theultimate decision making process. Oral advocatesshould be careful not to merely repeat or readtheir briefs. A well-developed oral argument iswhat the judges will immediately recall whenthey begin the decisionmaking process a. conference. Some judges form a preliminary opinionfrom initially reading the briefs and the oral arguments provide the opportunity to strengthensuch views.

Be Prepared for Anything

Counsel should be prepared for anything and everything. The oral advocate must know the casethoroughly, both the facts and the law. Youshould practice your argument several times before entering the courtroom. An associate, friendor spouse should listen to your argument andmake suggestions or propound questions duringsuch a practice.

The Opening Party

In the opening minute, establish the essential factsand the legal support for your position. Alwaysstay within the record on appeal. The oral argument should be kept as simple and direct as possible with an emphasis on logical argumentsrather than those that are frequently presented to ajury. You should avoid reading lengthy quotations, and unless it is a new case recently decided,citations are not generally necessary. Finallyavoid disparaging your opponent or the courtfrom which you are appealing.

Answer, Then Explain

Perhaps the most difficult challenge facing an oraladvocate is the proper method of answering questions by the court. Answer the question directlywith a simple "yes" or "no" and give a short explanation or justification for your answer. If youdo not know the answer simply state that. Do notevade an adverse question, but say that your argument differs from that which may have beenpropounded in the bench question. Avoid beingdistracted from your argument by questions fromthe court. A good outline and careful practice bymeans of rehearsal will keep you on the pointsyou wish to make.

Focus on Main Points

Limit the number of points you will try to makeduring the oral argument. Discuss only two orthree points at the most and advise the courtwhich you intend to discuss and which you willleave to the briefs. If the court asks you to discussa particular point, do so at once.


Make Rebuttal Count

Rebuttal should be concise and avoid repetition. Ifyour opponent misstates the record or raises anargument which you have not addressed, rebuttalcan provide an opportunity to correct and respond. You should be careful not to repeat arguments already made or to initiate any new matters. In some cases, experienced counsel havewaived rebuttal entirely.

Answer When Asked

Answer the question when it is asked and do nottell the court that you will get to the question at alater time. If you are not clear on the impact of thequestion. Ask for a clarification. Always listen tothe question very closely and do not respond tooquickly. You should also be careful not to interrupt the judge while he is framing the question.

Dress for Court

Considerable emphasis should be placed on courtroom decorum and appearance. Attendance at anyjudicial proceeding should be marked by appropriate clothing that does not distract the panel ofjudges from your primary purpose, that is, thelegal arguments. Clearly, flashy sports clothing isinappropriate. Counsel should always follow thedirections of the court which are generally distributed before oral arguments.

Be Prompt, Be Polite

Promptness cannot be overemphasized becausethe court can and will start without you. Ordinarypoliteness is the best rule to follow. Begin yourpresentation with the traditional phrase, "May itPlease the Court." Refer to the court or individualjudges as "Your Honor" or "This Court."

Avoid flippancy, off color language or personalreferences to opposing counsel, and certainly tomembers of the Court. When addressing the Courtat any level, appellate or trial, a good lawyershould stand, if able, before making any response.Whether you are preparing your first argument oryour thirty-first, these points should be reviewedperiodically to deliver your most effective court-room presentation

Justice Donald WintersheimerSupreme Court of KentuckyCovington, Kentucky

Justice Donald Wintersheimer received hisA.B. from Thomas More College; his M.A. fromXavier University and his J.D. from the University of Cincinnati. He was in private practice andserved as City Solicitor for the City of Covingtonuntil his election to the Court of Appeals in 1976.In 1982 he was elected to the Supreme Court andwas re-elected in 1990. Justice Wintersheimer isa prolific opinion writer on the Supreme Courthaving an average of over 40 opinions each year,the most for any member of the Court.*

Kentucky SupremeCourt

Page IS


THE CRIMINAL DEFENSE LAWYER AS EFFECTIVE NEGOTIATOR:A SYSTEMIC APPROACH

J. The Negotiation Process:Planning the Dance

A. Learning the Music and the Steps

Good criminal defense lawyers do not start outassuming their client is guilty or that a pleabargain is the best resolution of the case. Rather,as the ABA Standards for C’rinnnal Justicerecognize, the competent, committed advocatewill conduct a prompt investigation of the caseand explore all avenues leading to facts relevantto the merits of the case and the penalty in theevent of a conviction. Even if the defendantexpresses a dear desire merely to plead guilty, thelawyer still has the responsibility to undertake anappropriate investigation to ensure that the client’sintended guilty plea has a basis in fact and in law.Admittedly, the extent of that investigation andthe lawyer’s ability to push for a trial will besignificantly hamstrung if the defendant lacks thewill or desire to contest the charge. Nonetheless,the diligent defense lawyer understands that thedefendant may not recognize potential defenses orappreciate legal challenges so she will carefullyevaluate the merits of the case before evenconsidering jettisoning the trial option.

Similarly, in gathering information from thedefendant about his or her background and ininvestigating the case, defense counsel shouldtake care not to allow a client’s professedpreference for a guilty plea to cause counsel toprejudge the case or to curtail the search for validdefenses and important legal issues. Moreover,because such preparation is a necessary prelude tonegotiation, defense counsel should notprematurely press the defendant for permission tonegotiate.

Defense counsel who too eagerly pushes themerits of plea bargaining or working out a dealtalso may lose her client’s confidence. If the clientis unfamiliar with the workings of the criminaljustice system, it maybe appropriate for defensecounsel to discuss the settlement option. Prior to

The Negotiation Process:Planning theDance

Implementing the Strategy:Minimizing Dancing in the Dark

After The Music Has Stopped:Learning From One’sNegotiating Experience

This summary of The Criminal DefenseLawyer as Effective Negotiator: ASystemic Approach, 2 N.Y. Univ. ClinicalLaw Review 73 1995 is printed withpermission of the author & the review.


doing so. lio ever. delense counsel shoulddiscuss v ith the delndant his or her cx pectationsand desires regarding the case and undertake anappropriate Ihetual and legal investigation.

nce counsel has completed thai investigationand is satislied that the prosecutor possesses asound IIctual basis tbr the crime charged. counselmay seek the client’s permission to negotiate.Deiènse counsel should make clear that engagingin settlement negotiations does not necessarilymean that counsel is recommending thatalternative. Counselshould discuss with the clientthe extent ol counsel’s settlement authority as wellas the cI ient’s goals or desired outcomes. lItheclient is not interested in pursuing a plea bargainand insists on going to trial, defense counselought not initiate any settlement discussions. Thisdoes not mean, however, that defense counselought not try to persuade the defendant toreconsider such a choice, especially if counsel’sinvestigation suggests there is little chance toprevail at trial. Indeed, it would be very poorlawyering to simply permit a client to proceed totrial on a hopeless case without trying to convincethat client to consider plea bargaining. Moreover,defense counsel is still obligated to relay to thedefendant any offer made by the prosecutor. Ifdefense counsel, however, is unable to persuade adefendant to allow her to negotiate, counselgenerally should not continue to seek a pleaagreement with the prosecutor even thoughcounsel feels that a plea bargain is in thedefendant’s best interest.

If defense counsel and the defendant agree thatplea bargaining should commence, counsel mustprepare so that she can negotiate effectively. Asevery article or text on plea bargainingrecognizes, good preparation is the key tosuccessful negotiating. Although this point mayseem obvious, it is clear that a significant numberof defense lawyers go to negotiate having donelittle more than interview the client and brieflyreview the police reports.

Effective preparation for a plea bargaining session- like effective preparation for trial - beginswith a thorough client interview. Rarely willdefense counsel he able to effectively represent a

client thou! learning as much as posibIc aboutthe client and Ii is or her k no ledge of I he Ilictssurrounding the charges. It is also critical I hatdetnse counsel learn as much as possible aboutthe client’s personal circumstances andbackground. l’his in tbrmation not on lv is neededto determine ii an affirmative defi2nse such as abattered woman’s deInse or insanity delnseshould he raised, hut also it will enable counsel topersonalize the accused ii’ the dethndantsubsequently takes the stand at trial. At aminimum, counsel needs to know about adefendant’s living situation, dependents.employment history, education, past and presentlegal difficulties, disabilities and mental healthhistory. In some cases, however, especiallymurder cases with the possibility of the deathpenalty. counsel’s inquiry into the defendant’s pastwill need to be even more extensive.

Some clients may be reluctant to open up topersonal questions or may view questions abouttheir background as unnecessary prying. Counselcannot, however, simply give up. Indeed,counsel’s failure to adequately pursue informationabout the defendant’s background, in someinstances, can constitute ineffective assistance ofcounsel. Counsel usually can avoid or overcome aclient’s negative reactions to such inquiries byexplaining the importance of such questions and,if appropriate, by delaying sensitive questionsuntil some trust and rapport have been establishedin the attorney-client relationship.

To negotiate effectively, defense counsel must beso familiar with the defendant and her lifeexperiences that she can personalize or humanizethe defendant when she talks with the prosecutor.Defense counsel who is unaware or unpreparedwhen the prosecutor inquires about thedefendant’s present job status or work history niayseriously undermine her efforts to obtain afavorable sentencing concession. Finally, defensecounsel who is informed about and ready topresent effectively the defendant’s mitigatingpersonal circumstances also will be able to affordthe defendant zealous representation atsentencing.


Iii .tc,diiuir, it . critical thzi; defense counselintluile about die clcktndarit’s per’soiial situation socounsel can advise the client about the collateralconsequences 01 a gui JR plea or conviction. Aen in m.il C Hi vict ion can c st a IC fëndant the rightto drive. a profcssioiaI license, or even the ahi lit:to reniai n in Eli is country Although a defenseallor-n cv’s lit i In ic to a I cit or warn a de fCndantabout such collateral consequences generally hasnot been deemed su lilcient to invalidate a plea orto secure reversal of a conviction on grounds ofincffCctive assistance of counsel. the lawyer s roleas counselor requires that she apprise the client of’considerations that are likely to affect the client’slife. Indeed, these so-called collateral consequences may he considerably more important tothe defendant than the punishment proscribed bythe judge at sentencing in the criminal case. Accordingly. defense counsel should make thedefendant aare of the fbI I impact of’ a criminalconviction and help the defendant evaluatepossible collateral consequences before makingsignificant decisions about the case.

Next, counsel must attempt to assess the strengthof the prosecution’s ease as well as counsel’sability to attack that case or successfully raise anaffirmative defense. In some cases, this is a fairlyeasy proposition. The defendant. tbr example. iscaught in front of numerous witnesses walkingout of a store with an item she was attempting tosteal and gives a statement admitting the offense.In nmny other cases, however, defense counselfaces a formidable challenge in assessing the truestrength of die prosecution ‘s evidence. This taskis complicated by the fact that counsel may havelimited access to the prosecution’s case, especiallyin the early stages of a criminal prosecution. Ifdefense counsel, either by statute or because ofthe practices of the local prosecutor, has easy andearly access to police reports and other discoverymaterial, counsel’s task is much easier.

To meaningfully assess the prosecution’s case,defense counsel usually will need to secure theassistance of an investigator and often expertwitnesses as well. Accordingly, it is incumbentupon defense counsel to file a motion requestingthe appointment of an expert or investigator at thestate’s expense arguing that such assistance is

necessary to assure the defendant’s right to dueprocess and the cli’ective assistance ol counsel.National studies consistently show, however, thatcriminal defense attorneys frequently liii I toobtain or are denied ready access to adequateinvestigative assistance and expert servicesdespite the importance of such support services.

As part of the investigation leading up tosettlement negotiations, defense counsel alsoshould attempt to ascertain if the prosecutor hasany significant proof problems. ‘ounsel shouldtry to determine if the state’s witnesses are stillaround ant actually available to testify. This iseasier to discover in a state like Oklahoma wherethe prosecution’s witnesses must he identified onthe initial charging document. Similarly. talkingto prospective defense witnesses, particularly alibiwitnesses, is an important part of the preparationprocess. Counsel niust not only he able to assessthe strength of any defense witnesses hut he ableto realistically predict whether those witnesseswill actually show up and testify at trial. Inaddition. counsel must judge the strength of thedefendant’s own testimony’ and the merits of’ thedefendant’s liking the witness stand.

Another aspect of counsel’s preparation is todetermine the status arid positions of any codefendants, co-conspirators or other personsinvolved in the events underlying the chargefacing the defendant. The existence of’ otherindividuals who also are implicated in the crinleot’ten complicates counsel’s task. These peoplemay play a key role in exonerating or buryingdefense counsel’s client. Again, it may he difficultto figure out in advance of a negotiating sessionwhether these other persons are planning to pleadguilty or to testify against counsel’s client.Nonetheless, the more information that defensecounsel has about the role that others played in anoffense and the defendant’s relationship with theseother persons, the better able counsel will he toassess the risks the defendant faces.

In addition to determining if the state hassufficient, available evidence to convince the jurybeyond a reasonable doubt of the defendant’sguilt, defense counsel should ascertain whetherthe legality of any aspect of the state’s case can be

Page IS

TheAdvocate,Vol. 20, No.5 September1998

challenged. This evaluation also should be made,as best as possible, before attempting to resolvethe case. Certainly defense counsel should be ableto conduct the necessary legal research todetermine if the charging instrument, the mannerin which the charge was brought or theunderlying statute is subject to any constitutionalor other legal challenge. Although occasionally aprosecutor may welcome such a challenge, mostprosecutors do not want to expend limitedresources and to be embroiled in a time-consuming constitutional battle. Defense counselwho can identify and mount an effectivechallenge to the constitutionality of a statute willfind herself with a strong bargaining chip. Theprosecutor may well decide to abort the case atthe trial level rather than risk the statute beingstruck down.

Defense counsel confronts a more difficult task inassessing the viability of most evidentiarymotions. With limited access to the state’s case,the defense lawyer often must speculate whatexplanations law enforcement officers will profferto justify their seizure of the accused or of someincriminating evidence. Counsel then must predicthow those justifications will play before the trialjudge and possibly an appellate court. Unquestionably, defense counsel’s ability to raise and tolitigate suppression motions effectively is animportant factor in defense counsel’s overall effectiveness. Aggressive motion practice may enable counsel to secure the dismissal of charges ina case in which the defendant has no defense onthe merits. It is essential, therefore, that beforestarting any serious negotiations, counsel determine whether any motions are appropriate, assessthe strength of those motions, and prepare fully toargue those motions if counsel and the clientdeem it strategically wise to do so.

Before initiating any plea bargaining, a few finalpreparatory steps are necessary. Defense counselshould scour the statutes to try to find other lesserotlenses which directly or indirectly deal with thedefendant’s conduct. There may be another felonyoflense, a misdemeanor or even a municipalordinance violation that defense counsel canargue is a better fit or a suitable compromise inthe defendant’s case. In some instances, defense

counsel may even he able to find an administrative regulation that covers the defendant’sbehavior, Counsel also should determine if thereare any local conventions - a dismissal uponpayment of terms - which represent a suitableresolution of the defendant’s charges.

Just as it is important for defense counsel to beaware of any local conventions which mayprovide a simple and satisfactory resolution of thedefendant’s case, it is critical to learn the "standard deal" in a case such as the defendant’s. Although a prosecutor’s initial offer will depend on anumber of variables, prosecutors generally workfrom a starting point or "standard deal" that isbased primarily on the nature of the charge andthe defendanfs record. The extent to which aprosecutor ultimately will be willing to deviatefrom that "standard deal" generally depends on ahost of factors including time, resources, defensecounsel’s ability, reputation and relationship withthe prosecutor, evidentiary concerns, the victim’swishes, and the aggravating and the mitigatingcircumstances of the case. Nevertheless, thecriminal defense lawyer who is aware of the"standard deal" prior to going into a negotiatingsession will be heifer able to plan for that sessionas well as to respond to developments in thenegotiating process.

Defense counsel also must weigh the possibilitythat the defendant could he prosecuted in anotherforum for the events which form the basis tbr thedefendant’s pending charge. It may well be in thedefendant’s interest fbr counsel to persuade theprosecutor that the case would he more appropriately handled in that other forum. In someinstances, counsel may have to engage in pleanegotiations in different fbrums on the same matter or in several jurisdictions involving multiplecases in an effort to minimize the defendant’spunishment or exposure. In other cases. counselmay have to make quiet inquiries about generalpolicies or practices of’ prosecutors in anothercounty or of federal authorities in an effort tosecure information-without arousing attention----about the likelihood of’charges being filed againstthe defendant.

The Advocate,Vol. 20, No. 5 September1998

Finally, many defendants are caught up in thecriminal justice system because they have alcohol,drug, or mental health problems. Such problemsmay have led directly to the defendant’s pendingcharge, or they may be significantly affecting thedefendant’s life and her ability to cope with anydemands or restrictions placed upon her. Prosecutors and judges recognize the significance ofsubstance abuse and mental health problems and,to varying degrees, attempt to respond to suchproblems in meting out plea bargains and sentences. Such problems may, at times, be mitigating and lead to very favorable outcomes forsome defendants. In other cases, however, a defendant’s mental condition or drug problem maylead to a much harsher disposition. If defensecounsel is aware of a client’s condition or problemas a result of counsel’s confidential communications with the defendant, defense counsel shouldnot disclose the existence of that condition orproblem without the defendant’s consent.

If a competent client acknowledges a problem andaccepts counsel’s advice that it is strategicallywise to disclose the problem, counsel still mayneed to substantiate or document the problem inorder to secure any advantage during thenegotiation process. In addition, it may be extremely helpful to develop a program or plan foraddressing the client’s problem. Indeed, defensecounsel’s ability to find a suitable program notonly may be necessary to convince the prosecutorand judge to agree to a disposition of thedefendant’s case that allows her to remain in thecommunity, but it also maybe critical to helpingthe defendant stay out of the criminal justicesystem in the future.

B. Selecting the Right MusicChoreographing the Steps

and

Once defense counsel has undertaken thenecessary steps to be adequately prepared to pleabargain, counsel must formulate an appropriatenegotiating strategy to use for that particular case.Some commentators have argued that a particularnegotiating style or certain principles areapplicable in any negotiation context. Othertheorists contend that a lawyer’s negotiating approach should vary depending on the lawyer’s

assessment of the particular negotiation inquestion, the context, and the players involved.

Professor Don Gifford has fashioned a negotiatingstrategy which he argues can be used by criminaldefense lawyers as a model in most plea bargaining situations. According to Gifford:

Negotiation theory suggests that the plea bargaining strategy most likely to succeed in atypical case is one which begins with a competitive approach and progresses to a cooperativeapproach as negotiations continue. To accomplishthis strategy switch, the defense attorney shouldattempt to maintain a cordial and accommodativerelationship with the prosecutor, even during theearly phases of bargaining. Donald G. Gifford, Acontext-Based Theoty of Strate,-’ Selection inLegal Negotiations, 46 Ohio St. L.J. 41, 821985.

Gifford concludes that the use of thisrecommended strategy for most criminal cases ispossible-despite the fact that the mechanics ofplea bargaining and the behavior patterns of theattorneys vary depending on the locale and thecase-because the plea bargaining processgenerally exhibits certain characteristics that

determine which strategy is likely to succeed.

Although Gifford’s model does provide a helpfulstarting point in choosing a negotiating strategy, itdoes not eliminate the need for defense counsel toexamine and to analyze carefully a number ofsystemic factors, including the characteristicsidentified by Gifford, to see how these factorsplay out in counsel’s specific case. It is the interplay of these factors which invariably will affectcounsel’s ability to achieve a desirable plea bargain. Gifford admits that "when deciding a negotiating strategy, the defense attorney shouldalways determine the factors that distinguish theinstant case from the usual plea bargainingsituation. If these factors are important, theattorney may want to modi& the suggestedstrategy. Even adopting Gifford’s model, then,defense counsel in every case must examine ahost of important systemic factors. Althoughthese factors will change soni°ewhat fromjurisdiction to jurisdiction and even from case to

The Advocate,Vol. 20, No. 5September 1998

case within a jurisdiction, counsel’s analysis ofthese variables is essential if counsel is to obtainthe best plea bargain possible ibr the client. Justas a failure to prepare adequately may be fatal tocounsel’s plea bargaining success, the use of anygeneralized approach without analyzing thespecific variables relating to the defendant’sparticular case undoubtedly will limit counsel’seffectiveness.

The first factor counsel must consider, albeit notnecessarily the most important., is the strength orweakness of the defendant’s case. Unquestionably, the stronger the prosecution’s case, the lessleverage defense counsel will have in the bargaining process. On the other hand, if the defendant has a strong defense, defense counsel maywield considerable leverage in the process. Yet, ashas already been suggested, it is often difficult fordefense counsel to access the strength of theprosecution’s case with any precision. Even ifdefense counsel has early access to the state’sevidence, experienced trial lawyers recognize thata case that is strong on paper may not be nearly asstrong when the witnesses actually testi& at trial.In fact, as noted earlier, the state’s witnesses maynot show up at trial or they may testitS’ whollyinconsistently with what is contained in the policereports. Although defense counsel generally willbe in a better position to assess the strengths andweaknesses of the defense case, counsel’s abilityto accurately assess the likelihood of an acquittalultimately turns on her experience, the case, andthe quality of her judgment.

In addition, defense counsel must determine ifthere are any aggravating or mitigating circumstances related to the defendant’s crime whichdistinguish it from similar offenses. For example,a battery case between two men in which thevictim sustained a black eye is likely to be vieweddifferently than if the same case resulted in afractured jaw. Similarly, the prosecutor may viewthe seriousness of a defendant’s battery offense asmarkedly worse if the victim was elderly or thebeating was accompanied by racial slurs. Becausethe aggravating or mitigating circumstances of anoffense often will influence how others in thesystem view the defendant’s case, defense counselmust weigh the impact of any such circumstances

in the defendant’s case before selecting anegotiation strategy.

A second significant variable that defense counselmust take into consideration when fonnulating aplea bargaining approach is the prosecutor handling the defendant’s case. The personality, philosophy, trial ability, and negotiating style of thatprosecutor should influence defense counsel’sapproach in a variety of ways. For example, aparticular prosecutor may be generally reluctantto go to trial and eager to dispose of cases by wayof negotiation. If defense counsel is aware that theprosecutor assigned to the case has such anattitude, counsel may have more leverage thanwhen facing a prosecutor who loves to try cases.Similarly, some prosecutors are superb triallawyers while others are weak. Counsel may evaluate the likelihood of success at trial and corespondingly the viability of the trial option shouldnegotiations break down based, in part, on herassessment of the prosecutor’s trial skills.

Defense counsel may have dealt with a prosecutorenough to be able to determine if that prosecutorhas a particular or unusual negotiating style.Certainly, some prosecutors will appear to engagein the bargaining process when, in fact, they neverintend to move off of their initial offer. Thisnegotiating approach-making a reasonableopening offer and refusing to budge-has beenlabeled Boulwarism in the labor context. Defensecounsel negotiating with a prosecutor who adoptssuch a highly competitive strategy may be makinga mistake if she responds to the prosecutor in acooperative manner and discloses weaknesses inthe state’s case or positive aspects of the defensecase in an effort to convince such a prosecutor togrant concessions. Indeed, disclosing informationto such a prosecutor may strengthen his ar herhand by weakening the defendant’s chances forsuccess at trial. On the other hand, if the prosecutor is a fair and reasonable negotiator, counselmay be inclined to share more information and doso early in the bargaining process. Wheneverpossible, therefore, defense counsel should aternpt to learn as much as she can about the prosecutor’s bargaining style.

The Advocate,Vol. 20, No.5 September 1998

As discussed earlier, heavy caseloads pressuremany prosecutors to pIca bargain most of theircases. Thus, caseload pressure may provide defense counsel important leverage. This pressuretents to be somewhat uneven, however, sodefense counsel may be in a better bargainingposition at certain times than at others.

Defense counsel’s bargaining strategy also shouldtake into consideration the charging process usedby the prosecutor’s office. If possible, defensecounsel should attempt to get involved in theprocess before formal charges are filet becausecounsel may be able to exert a positive influenceon the charges finally selected or even block theissuance of charges. Frequently, however, counselwilt not be retained or appointed until after formalcharges are filet. Counsel still should bear in mindthat the nature of the charging process is likely toinfluence the prosecutor’s willingness to dismissor to reduce charges as part of a plea bargain.

Many prosecutors’ offices have written officepolicies regarding certain crimes and particulartypes of sentencing-related concessions. Thesepolicies may severely restrict a particular prosecutor’s ability to dismiss cases or reduce chargesto lesser offenses. The more informed defensecounsel is about such policies, the better ablecounsel will be to obtain a favorable dispositionfor the client. Moreover, the prosecutor’s freedomto bargain frequently depends on the prosecutor’sstatus or rank in the office. Young prosecutorstend to feel the need to appear "tough" ant so areoften reluctant or even unwilling to dismisscharges. This is particularly so if the charges havebeen filed by an experienced, senior prosecutor.The culture of politics of a prosecutor’s office alsomay limit the individual prosecutor’s freedom tobargain.

Finally most prosecutors’ offices, especially thelarger ones, have an internal chain of commandwhich defense counsel meets to consider informulating her negotiating strategy. If there is aviable review process within the prosecutor’soffice, counsel may be able to negotiate somewhat differently than if no such review is possible. Say, for example, that a young, fairly hardheaded prosecutor is handling a minor felony

case. If defense counsel knows that she ultimatelycan go over that prosecutor’s head to a seniorprosecutor if she is not satisfied with the prosecutor’s final offer, then counsel’s negotiatingtactics may be different than in a situation whereno such review is possible. If the senior prosecutor or final decision maker in a prosecutor’soffice is unreasonable or unapproachable, defensecounsel will have to cope with the fact that theinitial prosecutor is the one who must beconvinced if a favorable bargain is to be obtained.

Defense counsel’s ability to obtain a favorableoutcome also is influenced by another variable:the judge assigned to the defendant’s case. Insome jurisdictions this variable is particularlyhard to assess because no particular judge isassigned in advance of a trial or a guilty pleahearing. This increases defense counsel’s uncertainty and limits her ability to predict the merits ofgoing to trial, arguing sentencing, or accepting asettlement offer. The importance of this variable,therefore, depends in large part on the schedulingpractices and procedures of counsel’s jurisdiction.Nonetheless, defense counsel must recognize thatthe client’s critical decisions as well as counsel’sleverage in the bargaining process may turnsubstantially on the personality, philosophy, andsentencing proclivities of the judge to whom thecase finally is assigned.

Defense counsel generally is in a better positionwhen going into a negotiating session if she isknowledgeable about the judge who will eventually hear the case. The judge may be a grant orexceptionally fair at trial. The judge may bereasonable or extremely harsh in imposing sentences. Some judges blindly follow the sentencingrecommendations of prosecutors while others areopen to defense counsel’s persuasive arguments.Some judges clearly punish defendants who go totrial and lose. Other judges are very responsive topolitical pressure, especially near election time.Thus, a judge may be more willing to accept aplea bargain or respond - favorably to a defenselawyer’s sentencing argument in certain cases -

those out of the public eye - than in others.

Admittedly, defense counsel may be hard-pressedto get an accurate assessment of how a particular


judge will respond to a certain client or specificoffense. Nevertheless, a lawyer is courting disaster if she fails to take into account the extent towhich the sentencing proclivities of the judgemay control the outcome of a case. Take, forexample, the case of an appointed defense lawyerin Wisconsin who was representing a defendantcharged with a residential burglary. Although thedefendant had just turned eighteen and had noadult record, he did have a lengthy juvenile recordthat included several burglary adjudications.Defense counsel approached the prosecutor with aproposed plea bargain: his client, a first offender,would plead guilty to the charge in exchange for arecommendation of probation. The experiencedprosecutor quickly agreed recognizing that infront of the judge, who was assigned to the case,the prosecutor’s recommendation of probationwas really meaningless in light of the judge’susual practice of sending a person to prison for asecond burglary offense. Given this defendant’sextensive juvenile record, this judge clearlywould not view him as a first offender. Defensecounsel and his client, both unaware of thisjudge’s sentencing philosophy or practices,entered the guilty plea with the expectation thathe would follow the prosecutor’s recommendation. To their shock, the judge gave the defendanteight years in prison.

This ease illustrates the importance of securinginformation about a sentencing judge. Because heknew nothing of this judge’s sentencing practices,defense counsel really did not get any benefitfrom the deal he struck with the prosecutor. Hadhe been aware of the judge’s attitude towardresidential burglars and his sentencing policies,counsel may have been able to strike a bargain fora shorter prison recommendation which, in turn,the judge may have followed. Or, at least, defensecounsel may have been better prepared to go intothe sentencing hearing with more ammunition andarguments designed to persuade this judge todeviate from his standard practice in such cases.Finally, had the defendant been advised that thisjudge was likely to send him to prison if heentered a plea, the defendant may have evaluatedhis trial prospects differently and decided to go totrial. In the end, however, lack of preparation and

analysis robbed the client of effectiverepresentation.

As with most prosecutors, most judges haveheavy dockets which pressure them to movecases. To relieve pressure on their dockets, judgespush all of the actors in the system to settle theircases. Judicial settlement pressure may work tothe client’s advantage or disadvantage dependingupon the case and the other systemic variablesdiscussed in this article. Defense counsel’s abilityto recognize, to understand, and to manipulatethat pressure to the client’s advantage may spellthe difference between a good or marginaloutcome for the client.

Another significant variable in the bargainingprocess is defense counsel’s own reputation,preparation, and relationship with the other actorsin the system. Some defense lawyers in certaincases will be able to obtain a very favorableoutcome for a client simply because of who theyare. It may be that defense counsel formerlyworked in the prosecutor’s office or has aparticularly good relationship with the prosecutorhandling the case. Defense counsel’s reputation asa brilliant lawyer often will give that lawyerconsiderable leverage in the plea bargainingprocess. Similarly, defense counsel’s poorreputation especially as a lawyer who never goesto trial - will severely diminish that lawyer’sbargaining power. The extent to which defensecounsel can successfully implement a competitivenegotiating strategy will, in part, be a function ofcounsel’s trial abilities and her capability ofprojecting a credible threat to take a case to trial.

Lawyers who are just starting out in a jurisdictionusually will have comparatively little bargainingpower until they gain a reputation as a willing andable trial lawyer. It may be difficult for the younglawyer, therefore, to adopt a highly competitivenegotiating stance in an effort to wringconcessions out of an experienced prosecutorbecause that prosecutor will not view that defenselawyer’s threat to go to trial as credible. Theyoung criminal defense lawyer can enhance hercredibility and begin to build a good reputation bydemonstrating through good motion practice andthrough effective presentations in court and in

TheAdvocate, Vol. 20, No. 5 September 1998

negotiating sessions that counsel knows the lawas well as the facts of her case. The criminaldefense lawyer who fails to investigate her case orto research the law and who evinces a willingnessto plead guilty quickly to dispose of her cases isdoomed to a reputation as a mediocre advocate.There are other variables which have a significanteffect in some but not all criminal cases. Arrestingofficers clearly exercise considerable discretion indetermining what charges, if any, actually arebrought against a criminal defendant. Moreover,police officers regularly communicate withprosecutors about defendants and their cases. Notsurprisingly, then, the attitude and input of thearresting or investigating officers will at timesgreatly influence a prosecutor’s attitude about acase. In some jurisdictions, defense counsel maybe able to affect the feelings of the arresting orinvestigating officer with respect to the defendantand to get that officer to make a positive commenton the defendant’s behalf or, at least, refrain fromdenigrating the defendant. In other cases or inother jurisdictions, prosecutors may be generallyunresponsive to feedback from the policeregarding case dispositions.

Some prosecutors are very sensitive to crimevictims so that the attitude and input of thecomplaining witness may be critical indetermining the parameters of a plea bargain. Thismaybe especially true in certain types of offensessuch as sexual assault or domestic violence.Certainly, in recent years, more attention has beenpaid by the actors in the criminal justice system tovictims of crime. Nonetheless, the influence thecomplaining witness will have in the dispositionof a case will vary significantly depending on thecrime, prosecutorial policies, and the underlyingmerits of the case. In some instances, the desire ofthe complaining witness to dismiss or drop thecharges may provide defense counselconsiderable leverage. On the other hand, thecomplaining witness may pressure a reluctantprosecutor to push a marginal case to trial ratherthan work out a reasonable settlement. Defensecounsel, then, cannot afford to ignore this variablebefore selecting a negotiation strategy.

Linked to the attitude of the complaining witnessis the attitude of the community toward crime in

general and to defense counsel’s client inparticular. Defense counsel’s efforts to secure afavorable disposition for a client may be thwartedbecause of the publicity and attendant publicsentiment generated by a particular crime.Similarly, a crackdown on drunk driving, on carjackings, or on drug dealing in a particularhousing development may produce intensepublicity which complicates the ability of theprosecutor and defense counsel to arrive at anacceptable plea agreement. In fact, defensecounsel’s ability to achieve a favorable outcomefor a client may depend on counsel’s success inminimizing media attention. At the very least,counsel must be sensitive to this variable beforesettling on an approach to use with theprosecutor.

Once defense counsel has thoroughly preparedand has undertaken an analysis of the salientfactors which counsel believes are likely toaffect the defendant’s case, counsel is ready toplea bargain. To bargain effectively, defensecounsel must develop a negotiation strategy thatis tailored to the specific case she is handlingand that appropriately takes into account thesystemic factors likely to affect the dispositionof the case, including the culture of the localcriminal justice system as well as counsel’s ownnegotiating style. In short, defense counsel mustformulate a strategy that maximizes her abilityto take advantage of whatever leverage she canmuster to achieve the best possible outcome forher client.

II. Implementing the Strategy:Dancing in the Dark

Minimizing

The question of how counsel should proceed toimplement the negotiation strategy she hasselected inevitably is linked to the factors orreasons she chose the strategy and influenced bycounsel’s own negotiating style. Defense counselmust, of course, remain flexible and able torespond to the ebbs and flows of the negotiationsession. This article does not offer achoreographed script, road map, or game plan touse in the typical plea bargain session. Thebetter counsel is at anticipating moves anddevelopments in the negotiating session, the


better she will be at devising initial plans and.Developing contingencies that will allow her torespond effectively as negotiations unfold.Given the number of variables involved and thefact that circumstances often change drasticallyduring negotiations, counsel must be able toanalyze a changing situation, to respond to rapiddevelopments and to make tough judgment calls.

The complexity and fluidity of the pleabargaining process lends me to disagree withDonald Gifford regarding the relative roles ofcounsel and client in selecting a negotiatingstrategy. Gifford takes the view that defensecounsel not only must discuss negotiation strategywith the client but that the choice of strategy is ajoint decision. Gifford’s position is different fromthat espoused by ABA Standard 4-5.2 whichprovides that, after consultation, strategic andtactical decisions are the exclusive province ofdefense counsel and from Anthony Amsterdam’sposition that defense counsel controls all tacticaldecisions including "what discussions will behad with the prosecutor." Even though it may begenerally desirable for counsel to discuss thechoice of negotiating strategy with the client andsecure the client’s consent to a particularapproach, it is often not feasible. Although alawyer generally should be required to seek theclient’s permission before negotiating, sheshould not be obligated to frilly discussnegotiation strategy in every case. The choice ofnegotiation strategy may change dramaticallydepending on a variety of factors, includingwhich prosecutor is available on a given day.The need to react to a wide range of contingencies and to maneuver in a free flowing bargaining session may preclude meaningfuldiscussion and selection. As a practical matter,the client’s lack of a telephone or transportation

problems may seriously hamper or block communication between lawyer and client, therebydelaying counsel’s plea bargaining. In the end,although a client’s input into the lawyer’s selectionand implementation of strategy may be desirable,it is not, and probably ought not, be mandated.

On the other hand, counsel cannot select astrategy which ignores the, best interests of theclient as defined by the client. For example, thedefendant may stand to gain by supplyinginformation or agreeing to testify against otherpeople. "Rolling over," "flipping," or "ratting out"someone else can be extremely advantageous tothe defendant. It also can be dangerous andindeed, even deadly. Some defense lawyers takethe position that they will not providerepresentation to any client who wishes to turn onanother person to save himself or herself. Othersargue, however, that defense attorneys, especiallythose representing an indigent defendant, have anethical obligation to assist the defendant whowishes to be "a rat" or "a snitch."

Providing information to the state clearly is analternative which may be in the best interest ofsome clients. Because a client has the right to setthe objectives of the representation and providinginformation may be critical to that client’ssecuring his objective - say, for example, adismissal of the charges - the client ought tohave the power to decide whether or not tocooperate with the state. A private lawyer whodoes not wish to represent "a rat" is permitted todo so but only if that lawyer has secured theclienfs informed consent at the outset of therepresentation.

Absent such informed consent, however, defensecounsel cannot unilaterally decide to refuse to

Although it is the client’s decision whether to accept a plea bargain in a criminal case, it isessential that the client makean informed decision. The lawyer must have a firm grasp on therelevant facts and the circumstances of the case, as well as the law, to be an effectivenegotiator and advisor. An uninformed lawyer plus an uninformed client never equals aninformed decision being made by the client.

- Patti Echsner, Jefferson District Public Defender’s OfficeLouisville, Kentucky


consider or even seek a cooperation agreementbecause of the lawyer’s own philosophy orprinciples. This is especially true for the defenselawyer who represents the indigent who has noopportunity to select counsel. Eliminating apotential option for the defendant without evengiving the defendant the opportunity to considerthat option is particularly offensive because thedefendant may find himself or herself sold out bya co-defendant - represented by defense counselwith a different philosophy- who has cut a dealwith the prosecutor to testif’ against thedefendant. It is the defendant, not defensecounsel, who ultimately must decide whethercooperation is an alternative the client wishes topursue.

Counsel’s strategic decisions and her efforts toimplement those decisions, therefore, should beconsistent with the client’s expressed objectives.The committed defense lawyer will use whatevermeans possible - within ethical bounds - toobtain the optimum result for her client.Notwithstanding counsel’s best efforts, she mayrun up against a favor over which she has littlecontrol. For example, counsel and the prosecutorassigned to the case may have a personalityconflict that started in law school. Although anegotiating strategy is separate and distinct from anegotiator’s personal characteristics, style, andstrategy often do get intertwined. Yet, as Giffordargues, the more the lawyer can separate her ownpersonal characteristics from her negotiatingstrategy and be able to use competitive, cooperative, and integrative tactics even within anindividual negotiating session, the more effectivethat lawyer is likely to be.

Thus, not only should defense counsel try to riseabove personality conflicts, she should adopt astyle that works for and is consistent with herpersonality. As in trial work, trying to mimicsomeone else’s style rarely is effective. Nor is itgenerally desirable for counsel to approach everybargaining session in the same way or with oneuniform style. Rather, defense counsel must settleon an approach that will be effective with theprosecutor with whom she is bargaining.

Not only must defense counsel have adequatelyprepared before structuring a negotiating approach, counsel must be prepared for the actualbargaining session. Particularly when dealingwith a prosecutor for the first time, defensecounsel should demonstrate counsel’s keen familiarity with the facts and the law of the case. Thisdoes not mean, however, that defense counselshould show off. Rarely will this impress theprosecutor, especially if the prosecutor is aseasoned veteran. Rather, it means that counselshould have a good command of the facts and ofthe client’s background so that counsel canrespond to the prosecutor’s inquiries and project aconfident image. If counsel fumbles around in herfile to determine if the client is presentlyemployed or how many children the client has,the prosecutor will draw negative conclusionsabout counsel’s preparation. For the novice lawyertrying to make a favorable impression, lack offamiliarity with one’s file sends precisely thewrong message.

Both sides may go into a plea bargaining sessionattempting to find out more about their opponent’scase while bluffing or posturing about their owncase. Of course, neither defense counsel nor theprosecutor may lie during negotiations. The linebetween a lie or deliberate misrepresentation andbluffing, posturing, puffing, or gamesmanship,however, is not always clear. The Comment toModel Rule 4. / reflects this uncertainty byacknowledging that "[u}nder generally acceptedconventions in negotiation, certain types ofstatements ordinarily are not taken as statementsof material fact...and a party’s intentions as to anacceptable settlement of a claim are in thiscategory." Not surprisingly, then, there iswidespread disagreement among practitioners andscholars as to the kinds of statements and tacticswhich are improper.

Professor Albert Alschuler claims that prosecutorial "bluffing" is widespread and thatprosecutors willingly misrepresent facts to sustaintheir bluffs and obtain convictions. On the otherhand, the authors of Plea Bargaining: CriticalIssuesand Common Practices 1985 found little


evidence that prosecutors deliberately misrepresent facts. Rather, their research suggests thatprosecutors generally agree that such conduct innegotiations is improper and unethical. Nonetheless, their research also shows that many prosecutors feel they could legitimately attempt to bluffdefendants into pleading guilty in cases in whichthe prosecutor had various weaknesses or proofproblems and frequently did so.

In attempting to realistically assess the strength ofthe state’s case, therefore, counsel must recognizethat the prosecutor may be bluffing about hercase. Especially when one is dealing with anadversary for the first time, it may be difficult toascertain if the prosecutor’s case is as solid as sherepresents. Defense counsel may want to directspecific questions to the prosecutor to force her toreveal whether, in fact, her critical witnesses areavailable or whether particular evidence has beenduly analyzed. Assuming that the prosecutor willrespond truthfully to such inquiries, defensecounsel will be in a better position to successfullyresolve the case. Indeed, the more defense counselcan develop her skill as a patient, active listener,the more likely she can induce the prosecutor todisclose even more information in the negotiatingsession than the prosecutor intended.

It is ill-advised and dangerous for defense counselto get caught exaggerating or stretching the truth.Again, this is particularly so when dealing with anadversary for the first time. If defense counselasserts that the client has been in the jurisdictionfor only a short time to which the prosecutorresponds by noting the defendant’s conviction fordrunk driving five years ago in the same county,defense counsel may find herself in a verydefensive posture. This will, of course, happen toevery defense counsel from time to time becausecounsel will be relying, at least in part, oninformation from a client who may have lied orbeen confused about certain facts. Nevertheless,defense counsel should attempt to ensure that lackof familiarity with her client’s case does not add tothis problem.

It may not be advisable for defense counsel toseek to resolve a case in counsel’s first meetingwith the prosecutor. Although a host of factors,

including the defendant’s pretrial detention,financial restraints, or employment needs as wellas the machinations of a co-defendant, may affectthe timing of negotiations, frequently counselwould be wise to delay any attempt to resolve thecase in order to utilize the first meeting with theprosecutor to discover more about the state’s case.The wisdom of such a delay depends on the caseand the context or course of that initialnegotiating session. As explained earlier, the keyto effective negotiation not only is determiningwhat one’s specific goals are in any bargainingsession and discussing with the client anticipatedresponses, but then being able to respond tochanging circumstances as negotiations unfold.Moreover, even if counsel receives an offer thatcounsel knows is acceptable to the client, it maybe wise to delay any acceptance of that offer untila later meeting. Once again, counsel’s decisiondepends on the circumstances, including the riskof the offer being withdrawn, and the client’swishes.

Usually it is not desirable to have the clientactually participate in the bargaining session.Criminal defense lawyers generally prefer not tohave the client present since the client’s facialexpressions or remarks may undermine counsel’sefforts. Nevertheless, in rare instances, a properlyprepared defendant can be instrumental insecuring a good outcome.

Many texts on negotiation stress the importanceof negotiating on one’s own turf. Rarely is thispossible in the criminal context. In the vastmajority of cases, negotiations will occur in acourtroom, the hallway of the courthouse, or inthe prosecutor’s office. The setting as well as theextent to which the prosecutor is focused on pleabargaining may influence counsel’s ability toobtain a favorable result. It may be desirable tocatch the prosecutor in the back of a courtroomand strike a deal when the prosecutor is not reallyattentive to the task at hand. On the other hand,defense counsel must be mindful not to allowherself to be caught off-guard and to negotiate acase when counsel is not fully prepared to do so.A skilled ,negotiator will manipulate the timing ofevents and the setting to maximize that lawyer’sadvantage. Moreover, it is usually best to avoid


make a decisionposition to take

In some cases, it may be desirable to approach theprosecutor with a proposed bargain rather thanwait for the prosecutor to make an offer. Researchsuggests that there is a positive correlationbetween a negotiator’s original demand and herfinal outcome. Thus, defense counsel may beundercutting herself if her initial settlementproposal is too reasonable or too modest. Ifdefense counsel decides to present an initialsettlement proposal, counsel should considerdemanding the most extreme position she canrationally defend. On the other hand; if counsel’sproposed settlement offer is wholly unrealistic,the offer may be counterproductive. Theprosecutor may either dismiss counsel asincompetent or inexperienced or respond byrefusing to offer any concessions. The decision tomake an initial proposal and the crafting of thatproposal depends, therefore, on counsel’sassessment of the best overall negotiating strategyto employ in that particular case.

Counsel’s overall strategy also dictates theselection of other negotiating techniques or tacticsto use in a particular case. Because in most casesthc prosecutor wields superior bargaining power,defense counsel generally will be attempting toutilize persuasive arguments, rather than threats,to gain concessions from the prosecutor.Counsel’s ability to strike a responsive chord withan innovative or emotional presentation maysucceed in moving a cynical prosecutor to offer amore favorable bargain.

In other instances, defense counsel’s ability toextract a reasonable offer or settlement turns oncounsel’s success in convincing the prosecutorthat the defense actually is willing to go to trial. Ina substantial number of cases, the threat to go totrial is hollow and has little impact on theprosecutor. In some cases, however, defensecounsel’s confident insistence that she really hasno alternative but to try the case may cause theprosecutor eventually to offer a settlement that ismore favorable to the defense than the case reallywarrants. Defense counsel’s reputation and skill as

a trial lawyer combined with a demonstratedwillingness to go to trial, if necessary, often is thekey to counsel ‘s success as a negotiator. Indeed,if counsel is able to convince the prosecutor that atrial will be a costly, hard-fought battle, theprosecutor may conclude that even though he orshe will win in the end, the victory may not beworth the effort expended.

Although occasionally counsel’s candidassessment that she is looking to resolve the casemay be a useful step in securing a reasonableoutcome, it may also signal to a prosecutor thatthe defense is simply unwilling to go to trial. Forsome prosecutors, this knowledge allows them todrive a particularly harsh bargain. Defensecounsel who clearly signals an unwillingness togo to trial may find herself at the mercy of theprosecutor. Asking for mercy is rarely theapproach of choice. Rather, counsel must ensurethat her cooperative gestures are seen asprincipled concessions to reach a fair bargain, nota sign of weakness, anxiety or fear.

In cases in which the defense has substantialleverage, counsel should give the prosecutor anopportunity to save face if possible. Emphasizingin a bargaining session the existence of facts notknown to the prosecutor’s office when the initialcharging decision was made permits theprosecutor to utilize those facts to dismiss thecase. Thus, even though the initial chargingdecision may have been a horrendous one, thesecond prosecutor is able to justil the dismissalwithout taking a slap at a fellow prosecutor.

In other instances, however, defense counselmay have the leverage to insist upon a dismissalor favorable bargain that is hard for a prosecutoror prosecutor’s office to swallow. Although theprosecutor may lack leverage in this particularinstance, he or she may pressure defense counselto enter into a reasonable plea bargain so as to notembarrass or cause a political problem for theprosecutor’s office. The pressure on defensecounsel may be intense, particularly if it iscombined with a veiled threat by the prosecutor tokeep this case in mind in future negotiatingsessions. Unquestionably, defense counsel will becalled upon to make tough choices. Nevertheless,

negotiating under pressure tounless counsel is in the bestadvantage of that pressure.


because counsel represents an individualdefendant, not a particular cause or future clients,she is obligated to secure the best result possiblefor a client even though it may negatively impactfuture clients.

Ill. After The Music Has Stopped:Learning From One’s Negotiating Experience

Defense counsel cannot unilaterally accept orreject a prosecutor’s settlement offer. Rather,counsel must fully discuss with her client anysettlement offer made by the prosecutor even ifcounsel believes that the prosecutor’s settlementoffer is unacceptable or not in the client’s bestinterests. Counsel must provide sufficient advice,including a realistic assessment of the probableoutcome if the plea bargain is rejected and thecase tried, so that the client can make an informeddecision. It is then up to the client to make thedecision whether to accept or to reject the offer.

ABA Standard 4-5.1 calls for the defense lawyerto "advise the accused with complete candorconcerning all aspects of the case, including acandid estimate of the probable outcome," butcautions counsel "not to intentionally understateor overstate the risks, hazards, or prospects of thecase to exert undue influence on the accused’sdecision as to his or her plea." As all experiencedlawyers know, the manner in which the pros andcons of a plea bargain or any settlement offer arecommunicated to a client shapes the client’sultimate decision. It is critical, therefore, thatdefense counsel be mindful of the systemicpressures described in this article whencounseling a client regarding a proposed pleabargain.

For example, many defendants, especially firstoffenders, are reluctant to go to trial if exercisingthat option raises the possibility of a jail sentence.For many defendants, the prospect of going to jailis so unnerving that they will agree to almostanything if the negotiated disposition guaranteesthat the defendant will not serve any jail time.When explaining options to a client, therefore,defense counsel should avoid unduly emphasizingthe risks of incarceration. Although the lawyermust advise the client of the likely adverse

consequences of a proposed course of action, shcshould do so in a way that does not cause theclient to fixate on the small risk of incarceration.Like the doctor who overplays the small risk of anadverse side effect thereby causing the patient toreject a very safe medical procedure, the lawyerwho unnecessarily focuses the client’s attention onthe risk of jail may discourage the client frompursuing an alternative that really is in the client’sbest interest.

It is improper for counsel to allow her own needsor interests to affect her presentation of the client’soptions. If counsel feels strongly that the client’sbest interests will be served by selecting aparticular option, she may use a reasonablepersuasion to guide the client to a sounddecision." Sometimes that means counsel shouldencourage the defendant to go to trial. But it alsomeans in some cases that counsel should urge thedefendant to accept a plea bargain even though itentails a long prison stint rather than taking ahopeless case to trial. The line between areasonable persuasion" and manipulation whichrobs the client of the right to make one’s owndecisions is, however, not a bright one. Indeed, asAlbert Alschuler has accurately described, thedefense lawye?s task is often incredibly difficult:

When a lawyer refuses to "coerce his client," heinsures his own failure; the foreseeable result isusually a serious and unnecessary penalty that,somehow, it should have been the lawyer’s duty toprevent. When a lawyer does "coerce his client,"however, he also insures his failure; he damagesthe attorney-client relationship, confirms thecynical suspicions of the client, undercuts aconstitutional right, and incurs the resentment ofthe person whom he seeks to serve.

So once again, defense counsel finds herself in adifficult bind. It is appropriate to lean on clients tokeep them from making poor decisions regardingplea bargains. In my view, how hard counsel canlean turns on the seriousness of the case, the harmfacing the defendant, the client’s ability to makeinformed decisions, the certainty of the harm, theclient’s rationale for his or her decision, and themeans used to change the defendant’s mind.Defense counsel generally should not be


pcniiitted to threaten to withdraw to coerce adefendant into accepting a plea bargain thatcounsel feels is in the client’s best interest. Rather,defense counsel ultimately must respect theindividual’s constitutional right to turn down aplea bargain and to go to trial, even if that choiceis foolhardy. Nevertheless, it may be very difficultfor counsel to respect a foolish decision whichharms her client, especially for the lawyerdefending an accused facing the death penalty.

If the defendant decides to accept an offer, it isimportant for defense counsel to reduce theagreement to waiting to avoid misunderstandings.Given the volume of cases in most prosecutor’soffices, it is particularly important to memorializethe agreement if counsel anticipates that theprosecutor with whom counsel struck the pleabargain may not be in court at the time the guiltyplea is entered or she foresees possible confusionabout the details of the bargain. A simpleconfirmation letter to the prosecutor often will besufficient. In some instances a more detailedwritten document is appropriate.

A final step that a lawyer should take at theconclusion of a negotiation - for her own sake aswell as that of future clients - is to reflect uponthe experience and carefully assess what strategiesor techniques were effective. Too many lawyerscomplete a plea bargaining session never stoppingto consider what worked or what did not, neverthinking about what could have been donedifferently. As a result, too many lawyers repeattheir mistakes and do not even recognize theirlimitations. Growth and improvement as anegotiator, indeed as a lawyer, comes fromlearning to extract from one’s perfoniiances andexperiences lessons which can be applied in thefuture. Law schools have historically not done anadequate job preparing law students to bereflective practitioners. Although most lawschools have improved their skills instruction inrecent years, many lawyers now in practice werenever taught the skill of systematically critiquingor evaluating their own work. Not surprisingly,then, many lawyers have not cultivated thisimportant skill.

The good lawyer will review and evaluate her

preparation, her strategy and the negotiationsession with an eye toward future negotiations.Good lawyers learn from both their successes andtheir failures. But the speed and extent of thelawyer’s development as a proficient negotiatorusually will be a function of her reflectiveabilities.

The following checklist is provided as a startingpoint for those interested in acquiring or honingthis skill:

Post-Plea Bargain Checklist

I. How good was your:a overall pre-negotiation preparation?b knowledge of law relating to the case?c knowledge of facts?d knowledge of defendant’s personal

characteristics?e knowledge of defendant’s expectations

and concerns, especially potential collateral consequences?

2. Did you select a particular negotiatingstrategy and why?

3. Did you and your client select a certain goal?Did you achieve that goal?Did you set a high enough goal?If you achieved everything you sought, isthere reason to believe that your goal was settoo low?

4. Did you discover at any time in thenegotiation process that any of your prenegotiation assessment was inaccurate?

5. Did you pick up information during thenegotiating process which aided you?Could you have done anything during theprocess to learn more about the prosecutor’sstrategy, goals or the merits of the state’scase?

6. Did you or the prosecutor make anyunintended verbal or nonverbal disclosures?If so, what prompted those disclosures?

7. Did any contextual factor such as time orlocation affect the negotiation? If so, couldyou have influenced that factor?

8. Who made the first offer and what promptedit?

9. Who reacted to the first offer and in whatmanner?


14.

could have done to

misrepresentation of

to suspect that the

Conclusion

Selected Sources

Unquestionably, the criminal defense lawyer hasan obligation to try to secure the best possibleresult for each client counsel represents. For thevast majority of clients, defense counsel’s taskeventually will be to obtain the best plea bargainpossible. The lawyer committed to providingquality representation, therefore, must learn to bean effective negotiator. Effective negotiating, likegood card playing, requires sound judgment,intuition, the ability to read the other players andthe flexibility to adapt to a changing context. Andlike success in cards, success in negotiationsdepends in part on luck but more on preparation,study and reflective decision-making. In the end,the defense lawyer who takes the time to prepareand then to tailor an individualized approach ismore likely to obtain better plea bargains.

Finally, the criminal practitioner who takes thetime after each plea bargaining session tocarefully analyze that session in an effort todetermine what worked or did nor work and thereasons for her success or failure is likely toimprove as an negotiator. Finding the time to bereflective is not easy. And, as with most things inlife, becoming a good negotiator takes hard work.In the end, however, that time and hard work willpay enormous dividends for the criminal defenselawyer and her clients.

10. Did the prosecutor employ any specificbargaining tactics or techniques?If so, how did you react to those tactics?

II. How did the prosecutor react to anytechniques you used?

12. Were there other tactics which you mighthave been able to use to advance yourposition?

13. Which party made the first concession andhow was it handled?

14. If subsequent concessions were made, werethey reciprocated? If not, why not?Were the concessions "principled" and if so,what did either party articulate?

IS. How was the plea bargain finalized?Did either side appear to make greaterconcessions in wrapping up the bargain?

16. Did each side initially bargain competitively?If not, which side did not?Did either party switch to a cooperative/integrative approach? If so, which partyand why?Were both parties bargaining cooperativelyat the end? If not, why not?

I 7. Did time pressures influence either side or theconcessions made? If so, could you have usedthis factor to your advantage?

18. Did you "bluff’? If so, how?Do you think the prosecutor "bluffed"? If so,how?Is there anything youunmask the "bluff’?

19. Did you resort to anyfact or law?Is there any reasonprosecutor may have?

20. Who do you think got the more favorableplea bargain and why?Is there anything else you could have done toachieve a more favorable outcome for yourclient?

This is a modified version of a post-negotiationchecklist suggested by Craver, Effective LegalNegotiation & Settlement 2 2d ed. 1993 at 212-

I. Albert W. Alschuler, implementing the CriminalDefendants Right to Trial: Alternatives to thePlea Bargaining System, 50 U.Chi.L.Rev. 93 I1983.

2. United States Department of Justice, PleaBargaining: Critical Issues and CommonPractices 1985

Rodney J. UphofTUniversity of Oklahoma300 Timberdell Rd., Rm. 222Norman, Oklahoma 73019Tel: 405 325-3702; Fax: 405 325-0502E-mail: [email protected]*

The power to negotiating effectively finds its source in the perception by your opponent that you willgo to trial, well prepared.

- Jerry J. Cox, Mount Vernon, KY, Past-President, KACDL


PLAIN VIEW- ERNIE LEwIs, PUBLIC ADVOCATE

PennsylvaniaBoard ofProbation and Parole, v. Scot!

118 S.Ct. 2014 6/22/98

A closely divided Supreme Court has held thatthe exclusionary rule does not apply in a parolerevocation hearing, thereby allowing for the admission of illegally seized evidence to secure arevocation.

Scott was on parole in Pennsylvania. Upon being granted parole, he signed a consent to searchwithout a warrant. He was later arrested, and hishome was searched without a warrant. Thesearch produced several firearms, which Scottwas prohibited from possessing. Scott’s parolewas revoked based upon the evidence found. Onappeal, the Pennsylvania Supreme Court affirmed the lower court holding that the evidencewas admitted erroneously. The Court ignoredScott’s "consent to search" form, found thesearch to have been illegal, and held that the exclusionary rule applied to parole revocationhearings. Specifically, the Court reasoned thatwithout the exclusionary rule, police officerswould not be deterred from Fourth Amendmentviolations. The State obtained review from theU.S. Supreme Court.

The five-justice majority opinion was written byJustice Thomas. joined by Justices Rehnquist,O’Connor, Scalia, and Kennedy. The Court reiterated its fundamental understanding of theexclusionary rule: that "the States’ use of evidence obtained in violation of the FourthAmendment does not itself violate the Constitution." "The exclusionary rule is instead a judi

cially created means of deterring illegal searchesand seizures."

The Court also restated that the evaluation of theapplicability of the exclusionary rule utilizes abalancing of the deterrent effect with the "substantial social cost[sJ." The Court stated thatthe exclusionary rule would "hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings," thereby producinga significant social cost. The deterrent benefitwould be insubstantial "because application ofthe rule in the criminal trial context already provides significant deterrence of unconstitutionalsearches." Therefore, "the federal exclusionaryrule does not bar the introduction at parole revocation hearings of evidence seized in violation ofparolees’ Fourth Amendment rights."

The Court rejected the Pennsylvania SupremeCourt’s effort to fashion a special rule where theofficer knew that the person being searched wasa parolee, or where the officer was, for example,a parole officer. The Pennsylvania Court hadcarved out this special rule due to the deterrenteffect on these particular officers. The SupremeCourt, however, stated that a police officer whoknew the defendant was on parole would still bedeterred by the application of the exclusionaryrule to a criminal trial. The deterrent effect tothe parole officer would be "limited" due to thefact that the parole officer is viewed, at least bythe Court, as more of a supervisor and less ofpolice officer. "Although this relationship doesnot prevent parole officers from ever violatingthe Fourth Amendment rights of their parolees,it does mean that the harsh deterrent of exclu


sion is unwarranted, given such other deterrentsas departmental training and discipline and thethreat of damages actions."

There were four dissenters. Justice Stevenswrote a short dissent, stating that the exclusionary rule is constitutionally required by theFourth Amendment. He expressed his oft-statedview originating with Justice Stewart that therule is required "as a remedy necessary to ensure that those prohibitions are observed infact."

Justice Souter also wrote a lengthy dissentingopinion, joined by Justices Ginsburg and Breyer.According to the dissenters, the majority missedthe mark by misunderstanding the nature of aparole revocation hearing, which in many instances is the main event. "In reality a revocation proceeding often serves the same functionas a criminal trial, and the revocation hearingmay very well present the only forum in whichthe State will seek to use evidence of a paroleviolation, even when that evidence would support an independent criminal charge. The deterrent function of the exclusionary rule is thereforeimplicated as much by a revocation proceedingas by a conventional trial, and the exclusionaryrule should be applied accordingly."

The dissenters also recognized that parole officers are not necessarily the "supervisor" of theparolee, friends disinclined to break the FourthAmendment in order to obtain evidence withwhich to revoke the parolee. "Parole officerswear several hats; while they are indeed the parolees’ counselors and social workers, they also"often serve as both prosecutors and law enforcement officials in their relationship withprobationers and parolees." "In sum, if the police need the deterrence of an exclusionary ruleto offset the temptations to foget the FourthAmendment, parole officers need it quite asmuch."

A few comments are appropriate. This opinionreflects the continued sad decline in FourthAmendment protections that began with Gatesand continues to this day. It reflects the Court’scontinued deference to the police, to law enforcement, to prison officials, and to the special

needs of each. The opinion further reflects theCourt’s absence of sensitivity to the FourthAmendment rights of prisoners and parolees thatbegan with the Gri/Jin decision. The fact thatJustice Stevens is the only Justice left who believes the exclusionary rule is constitutionallyrequired demonstrates how far the Court hasgone from Mapp v. Ohio. Finally, the opiniondoes not address the increasingly common experience of parole officers acting with police officersrecognized by the dissenters to conductwarrantless searches of parolees. Under thisnew ruling, such searches, accomplished with nointent to prosecute but every intent to revoke,would be legal and the evidence seized would beentirely admissible at a parole revocation hearing.

Wilson v. Commonwealth1998 WL 306792 Ky.Ct.App. 6/12/98

The Kentucky Court of Appeals has decided thata person on parole can have his car searchedupon reasonable belief where he has consentedto searches as a condition of his parole.

Israel Wilson was on parole, having agreed thatwhile on parole he would be "subject to searchand seizure if my [parole] officer has reason tobelieve that 1 may have illegal drugs, alcohol,volatile substance, or other contraband on myperson or property." Wilson was at a halfwayhouse when two parole officers visited to arresthim for parole violation. He was patted down,and $373 was found, which he attributed to hisjob, which he had had for a week. When heasked to call someone to move his car, the parole officers decided to search the car, wherethey found marijuana and a scale. Wilsoneventually entered a conditional plea of guilty totrafficking in marijuana within 1000 yards of aschool and being a PFO 2’".

On appeal, in a unanimous decision written byJudge Huddleston, the Court found the search tobe reasonable. The Court relied upon Grflhn v.Wtcconsin, 483 U.S. 868 1987, which had heldthat parole searches were a special needs search,and as such could be conducted under a reasonable belief rather than probable cause standard."Like the Supreme Court in Griffin, we believe


that the operation of the parole system presents‘special needs’ beyond normal la enforcement.The parole system allows for the early release ofconvicted criminals from prison, but does notgrant complete freedom. It is imperative that theCommonwealth impose conditions of release onparolees to ensure that parole is a period ofgenuine rehabilitation and that those released onparole do not become a threat to the community."

The Court went on to find that the officers had areasonable belief that Wilson was committing acrime. This was based upon the fact that he hadconsiderable cash in his possession after havingbeen on the job for a short period of time, that hewas wanting to call someone to move his car,that he had been incarcerated on drug charges,and that he was in the halfway house due tohaving tested positive.

UnitedStatesv. Reed141 F.3d 644 6th Cir. 4/15/98

Joseph Reed, a convicted drug trafficker, livedin a downstairs flat in Mansfield. One night, analarm went off there, and the residents of theupper flat called the police, who arrived withinthree minutes. A canine team was called, andshortly thereafter "Cheddy" and his handler arrived. Reed arrived, and agreed that it was agood idea to send in the dog after the burglar.The handler and Cheddy went inside. While thedog was trying to find the intruder, he alerted atthe couch and the bedroom dresser drawer.Cheddy knocked the drawer off its runner. Thehandler noticed a bag with cocaine in it. Oncethe handler found no burglar, the all clear wasgiven. More officers arrived to conduct a moreextensive search. Reed then declined to give hisconsent for a search, and was placed under arrest. Officers obtained a warrant to search theflat thoroughly. During the execution of thewarrant, more drugs were found.

Reed was charged in federal court with being afelon in possession of a firearm, and with possessing with intent to distribute cocaine. Reedchallenged the search, but lost his motion after a

four-day hearing. After a three-day trial, he wasfound guilty and appealed to the Sixth Circuit.

The Sixth Circuit affirmed the trial court’s orderoverruling the motion to suppress. The opinionwas written by Judge Ryan and joined by JudgeSuer and Judge Wellford.

The Court held that the canine search itself wasnot a search within the Fourth Amendment."Just as the sniffing of contraband by trainedcanines does not constitute an unlawful search,neither does the viewing by humans of contraband in plain sight amount to an unlawfulsearch. As long as the observing person or thesniffing canine are legally present at their vantage when their respective senses are aroused byobviously incriminating evidence, a searchwithin the meaning of the Fourth Amendmenthas not occurred."

The Court rejected authority from the SecondCircuit that holds that the search of a privateresidence by a canine is different from a publicsearch as represented in United States v. Place,462 U.S. 696 1983. In United States v. 77w-mas, 757 F. 2d 1359 2d Cir. 1985, the Courthad held that "the heightened privacy interest ina dwelling place renders a canine sniff intrusiveon the inhabitant’s expectation of privacy, evenwith respect to contraband." The Sixth Circuitrejected this notion, saying. "there is no legitimate interest in ‘privately’ possessing cocaine... We now take the opportunity to clarifythat a canine sniff is not a search within themeaning of the Fourth Amendment. Of course,the canine team must lawfully be present at thelocation where the sniff occurs."

Judge Wellford wrote a brief concurrence.While he agreed with the result, he did not agreewith the majority’s rejection of the Thomas case.

The analysis performed by the Court wasstraightforward. Essentially, the Court foundthat the police officer was where he had a rightto be when he saw contraband in plain view.The Court found the officer had a right to be inReed’s house as a result of both the burglary inprogress, and Reed’s consent to the caninesearch.


He would establish that in some circumstances,a dog sniff can constitute a Fourth Amendmentsearch.

UnitedStatesv. StricklandF.3d ,1998 WL 251076

- 6rcir. 5/20/98

The issue in this Sixth Circuit case is whether"the Fourth Amendment’s requirement of probable cause for an arrest is satisfied when, in effecting an arrest of a suspected drug dealer, police officers rely solely on the statements of aninformant as to the manner in which the planneddrug deal would take place and on certain occurrences the officers observe at the time and placeof the planned drug deal that appear to corroborate the informant’s statements."

Haggard was an informant for the Chattanooga,Tennessee police. Haggard, seeking cocaine,placed a phone call, which was taped, to hisbrother-in-law. The brother-in-law suggestedthat Haggard contact Strickland. Haggard calledStrickland, although the conversation was nottaped. They agreed to meet at conveniencestore. Haggard told the police that they hadagreed to purchase one ounce of cocaine for$1000. The police gave Haggard $1000 inmarked bills.

The police then staked out the conveniencestore. Haggard wore a wire. Strickland arrivedwith two other men. Strickland approachedHaggard in his car, got into Haggard’s car, andthen went back to his car. The police then decided to arrest Strickland, who said, "I ain’t gotno dope." Haggard had cocaine thereafter,while Strickland had the $1000 in marked bills.

Strickland sought to suppress the evidence. Themagistrate found that the police had probablecause to arrest and search Strickland. The district court affirmed the magistrate.

The Sixth Circuit agreed with the court below.In a decision by Judge Boggs, the Court heldthat probable cause existed under the Illinotc v.Gates, 462 U.S. 213 1983 standard. The Courtobserved that "the corroboration of a certain

amount of information provided by an informantcan be sufficient to establish probable cause toarrest and search a criminal suspect... Armedwith two taped conversations of known drugdealers who identified Strickland as a potentialsource of cocaine, an informant’s account of aconversation in which Strickland agreed to meetHaggard at a certain time and place to sell himcocaine, and the independent observation ofStrickland’s arrival at the Corner Market withassociates who did not accompany Stricklandinto Haggard’s car, the police decided to arrestStrickland. We hold that, on these facts, the officers had probable cause to do so."

SHORT VIEW

I. Statev. Kieffer, 577 N.W.2d 352 Wis. Sup.Ct. 5/12/98. The police failed to askenough questions when they received permission to enter and search from a man whoowned a house and a garage with a loftapartment above it. The loft was occupiedby the son-in-law of the owner of the property. The son-in-law and his wife paid somerent and had the only keys to the apartment.The Court rejected the State’s argument thatthe fact that the couple used the bathroomand the phone in the house produced actualauthority in the father-in-law to consent tothe search. Actual authority requires either"mutual use of the property by personshaving joint access and control from mostpurposes." U. S. v. Matlock, 415 0.5. 1641974. Further, the Court rejected the apparent authority doctrine, saying that thepolice needed to ask more before they couldhave believed reasonably in the father-in-law’s apparent authority to consent to thesearch.

2. United States v. Howl, 143 F.3d 1223 9th

Cir. 5/11/98. The Ninth Circuit has decidedthat anticipatory warrants must have the affidavit attached to the warrant at the time ofthe execution. The purpose of this is in order to identify the conditions which willtrigger the execution of the warrant in orderto identi& the particularity requirement."We conclude only that the necessary con-


ditions must appear in the court-issued warrant and attachments that those executing thesearch maintain in their immediate possession in order to guide their actions and toprovide information to the person whoseproperty is being searched."

3. Hulse v. State, 1998 WL 239615 Mont.5/5/98 not yet final 5/5/98. The MontanaSupreme Court has reversed a previous decision and held that a field sobriety is a searchwhich requires at least a reasonable suspicion. Previously, the Court had held that itwas an observation that required no level ofsuspicion whatsoever. The Court noted that"field sobriety tests create a situation in.which police officers may observe certainaspects of an individual’s physical and psychological condition which would not otherwise be observable."

4. Nelson v. Irvine, Cal?f, 143 F.3d 1196 9tFl

Cir. 5/6/98. The Ninth Circuit has held thatwhere a state court has declared breath andurine tests as effective as a blood test, that itis unreasonable to mandate a blood testwhen a driver makes his preference for another test known. This holding is in thecontext of a 42 USC 1983 lawsuit against acity.

5. State v. Lee, - P.2d -‘ 1998 WL 268851Ariz. 5/28/98. The Arizona SupremeCourt has held that drug courier profile evidence is not admissible as substantive

evidence in a criminal trial. This evidence,often admitted at suppression hearings, wasadmitted at an Arizona trial to prove theknowledge element of the offense. TheCourt called such evidence a "loose assortment of general, often contradictory, characteristics and behaviors used by police officers to explain their reasons for stopping andquestioning persons about possible illegaldrug activity."

6. United States v. Rowland, - F.3d -, 1 998WL 281927, 66 U.S.L.W. 3762 l0’’ Cir.6/2/98. In another anticipatory warrantcase, the Court held that it was not reasonable to assume that a person picking up childpornography will take that package to hishome allowing for a search of the home.Rather, there must be a nexus between thepackage and the home for the anticipatorywarrant to be legal. "The magistrate mustensure that the judicial function of determining the existence of probable cause isnot improperly delegated to governmentagents by relying on police assurances that asearch will not take place unless there isprobable cause." The evidence was saved,however, by the application of the good faithexception.

Ernie Lewis, Public Advocate100 Fair Oaks Lane, Suite 302Frankfort, Kentucky 40601Tel: 502 564-8006, #108; Fax: 502 564-7890E-mail: elewismai1.pa.state.ky.usN

The Department of Public Advocacy presents

KENTUCKY’S LITIGATION PERSUASION INSTITUTEKentucky Leadership Center, Faubush, Kentucky October 4-9, 1998

Three Tracks: Trial, Appeal, Post-ConvictionEach will focus on practical persuasion skills for successful litigation with daily lectures and small group practicesessions with feedback.

For a brochure or more information contact: Tina Meadows, Education & DevelopmentDepartment of Public Advocacy100 Fair Oaks Lane, Suite 302Frankfort, Kentucky 40601Tel: 502 564-8006; Fax: 502 564-7890E-mail: tneadowsmail.e.state.ky.us

Open Only to Criminal Defense Advocates

The Ath’oeate, Vol. 20, No. 5September 1998

WEST’S REVIEW- JULIE NAMKIN

ASSISTANT PUBLIC ADVOCATE

Commonwealthv. Howard andVaughn v. Commonwealth,

Ky., - S.W.2d 6/18/98Daviess Circuit Court and Laurel Circuit Court

These two cases were consolidated because theyinvolve the same issue: whether the JuvenileDUI Statute or the Zero Tolerance Law, KRS189A.0l0l e, is constitutional. The statutestates:

A person shall not operate or be inphysical control of a motor vehicleanywhere in this state ... while the alcohol concentration in his blood or breathis 0.02 or more based on the definitionof the alcohol concentration in KItS189A.005 if the person is under the ageof twenty-one.

Because driving an automobile is not a fundamental right but a legitimately regulated privilege, and automobile drivers under the age oftwenty-one do not constitute a suspect class, theKentucky Supreme Court reviewed the constitutionality of the above statute under the rationalbasis analysis. The Court concluded the statutedoes not violate the state and federal guaranteesof equal protection.

In concluding the line drawn by the legislature isrational, the Court observed that individuals inthe class covered by the statute are not able topurchase liquor legally and also the legislaturehas recognized, in other contexts, "a maturitydifference between I 8 year olds and 21 year oldsin a number of [Kentucky] statutes." The Courtalso concluded the classification is related toachieving the legislative purposes of reducingthe number of teenage traffic fatalities and protecting the public.

Sholler v. Commonwealth,Ky., S.W.2d - 6/18/98

Kenton Circuit Court, Judge Douglas Stephens

Ralph Sholler was convicted of two counts offirst degree robbery, two counts of first degreerape, two counts of first degree sodomy, firstdegree burglary, and being a first degree persistent felony offender. The jury fixed his sentenceat twenty years on each of the underlying felonies and then enhanced the sentences to life imprisonment pursuant to the first degree persistentfelony offender conviction.

On appeal, Shollerraised the following issues.

First, Sholler argued the trial court erred in failing to strike two potential jurors for cause. Oneprospective juror was a retired Secret ServiceAgent who was presently employed part time ata hospital where he was acquainted with a nursewho would be a witness in the case. The prospective juror indicated upon questioning bydefense counsel that he was "very pro-law enforcement and that he placed substantial credence in police officers." Finding that the trialcourt did not abuse its discretion in failing tostrike this prospective juror for cause, the Kentucky Supreme Court stated that although theindividual "indicated he would tend to give credence to the testimony of a police officer, [theindividual] did not indicate a bias against defendants." The Court also pointed out that policetestimony "played only a lesser role in theprosecution’s case" because the case was basedprimarily on the victims’ eyewitness identification and testimony.The Court also found the prospective juror’s"mere work relationship" with a "peripheralwitness" to be insufficient to establish bias tosupport a challenge for cause.

The Advocate,Vol. 20, No.5 September 1998

The second prospective juror knew the prosecutor socially through mutual friends and theirmutual membership in a large card club. Theprospective juror stated she might play cardswith the prosecutor once a year and her relationship with him was not such as to make it difficult for her to serve as a juror and would notmake her uncomfortable to render a verdict forthe defendant. The Court found the definition ofbias "does not encompass a mere social acquaintanceship in the absence of other indicia ofa relationship so close as to indicate the probability of partiality." Thus, the trial court did notabuse its discretion in overruling defense counsd’s motion to strike this prospective juror forcause.

Second, 51w/Icr argued the testimony of Commonwealth witness Stacey Wamecke, a forensicscientist specializing in DNA testing, as to theDNA test results should have been suppressed inthe absence of accompanying testimony from apopulation geneticist. Warnecke testified theDNA from the semen samples removed from thefemale victim’s eyebrow and thigh matched fourof the five DNA strands taken from a bloodsample from Sholler. Warnecke also testified a"match" does not mean that Sholler must havebeen the source of the semen samples, but onlythat Sholler was not excluded as the source.Sholler argued that testimony of a genetic"match" cannot be introduced without proof ofthe significance of that conclusion.

The Kentucky Supreme Court noted thatWamecke’s testimony did include an explanation of the significance of a DNA "match," evenif it was just that the results of the testing did notexclude Sholler as a possible source of the semen. The Court viewed Warnecke’s testimony"as similar to that of an expert who testifies thata defendant’s blood type is the same as that of ablood sample found at a crime scene." TheCourt found Wamecke’s testimony was "justanother item of circumstantial evidence to beweighed by the jury."Finally, the Court stated that if Sholler "desiredadditional evidence of statistical probabilitiesbased on Warnecke’s test results, he could havehired his own population geneticist to analyzethe results and testify to those probabilities.

Third, the Court refused to address Sholler cargument that it was error for the trial court toexclude the testimony of a psychologist, whowould have testified to factors which cause eyewitnesses to make inaccurate identifications,because it was not properly preserved for reviewwith an avowal.

Fourth, Shol/er argued it was error for the trialcourt to deny his motion to allow the jury toview the crime scene at night so it could determine whether the lighting conditions were suchthat the victims were able to make an accurateidentification of Sholler. The Court held it wasnot an abuse of discretion to overrule Shol/er ‘smotion because Sholler s argument was purespeculation and could not have been proven by aview.

Fifth, the Court found that Sholler ‘s right not toincriminate himself was not violated when thetrial court granted the prosecutor’s request thatSholler display his teeth for the jury after a defense witness testified on cross-examination thatSholler spoke with a lisp and was missing afront tooth. These facts had not been mentionedby the victims.

Sixth, Sho/ler claimed that Det. Stanley indirectly commented on his right to remain silentwhen he testified he went to police headquartersto "hopefully get an interview with the suspect."Stanley did not testify whether he did or did notinterview S/,oller. The Court held that sincethere was no objection to Stanley’s testimony,this issue was not preserved for review. Even ifit had been objected to, the Court did not believethe comment was likely to draw the jury’s attention to the defendant’s silence.

Seventh, the Court rejected Sholler ‘s cumulativeerror argument since it found no errors had occurred at his trial.

Sholler s convictions and life sentence were affirmed.

Commonwealthv. Bailey,Ky.App., S.W.2d - 5/29/98

Nicholas Circuit Court

TheAdvocate,Vol. 20, No.5 September 1998

Bailey was convicted of flagrant non-supportKRS 530.050 and served his two year sentence. Upon his release from prison Bailey didnot make any payment on the accrued past duechild support. As a result, upon the Commonwealth’s motion, the circuit court issued a showcause order for Bailey for civil contempt for hisfailure to pay the past due child support. WhenBailey failed to comply with the court’s order, awarrant was issued for his arrest. After a hearing, the court dismissed the Commonwealth’smotion to hold Bailey in civil contempt for failure to make payments on the past due child support. The court found, based on double jeopardyprinciples, that Bailey s "criminal convictionand subsequent service of sentence preclude[d]further incarceration for the same conduct, i.e.,failure to pay the same child support obligation."The Commonwealth appealed.

The Court of Appeals held that Bailey ‘s criminalconviction did not preclude civil action againsthim to collect the past due child support. TheCourt of Appeals stated the trial court was inerror when it found that double jeopardy principles precluded additional incarceration of Baileyon civil contempt charges. The Court of Appealsheld the case must be remanded to the trial courtfor a hearing at which it is determined whetherBailey had made any attempt to comply with thecourt’s order to pay the past due child supportand whether Bailey has the financial ability tomake such payments in the future in an effort tocomply with the court’s order. If Bailey is foundto have the ability to pay, and thereby possessesthe financial means to purge himself of contempt, the court can then find him to be in civilcontempt and may imprison him to compelcompliance with its order. If the court findsBailey lacks the ability to pay, the court may, inits discretion, fashion a remedy to address thearrearage still owed.

Crace v. Commonwealth,Ky.App., - S.W.2d - 6/12/98

Boyd Circuit Court

Grace was originally indicted for bribery of apublic servant, receiving stolen property, obscuring the identity of a vehicle and second degree assault. After a jury trial, Grace was ac

quitted of obscuring the identity of a vehicle andreceiving stolen property. The jury hung on thebribery and the assault charges.

Prior to the second trial, the Commonwealthmoved for a change of venue which was granted.At this trial Crace was convicted of bribery of apublic official and fourth degree assault. He wassentenced to four and one half years on the bribery charge and twelve months on the assaultcharge to run concurrently. He raised four issues on appeal.

First, Crace argued the trial court erred when itfailed to instruct the jury on the affirmative defense set out in KRS 521.0202 which is meantto prevent public officials from "shaking down"individuals. However, the Court of Appealsstated the record evidence showed it was Crace,through his friend Fields, who first approachedthe Commonwealth’s Attorney with an offer ofpayment in exchange for dismissing the indictment against him. Thus, the trial court’s determination that the evidence did not warrant suchan instruction was correct.

Second, Grace argued the trial court abused itsdiscretion in granting the Commonwealth’s motion for a change of venue, but the Court of Appeals found no abuse of discretion. Moreover,there was nothing improper in the trial courtmoving the trial to a county that did not adjoinJohnson County.

Third, Grace argued the trial court erred when itfailed to suppress the tape recorded conversations between Grace and the Commonwealth’sAttorney. Grace argued the Commonwealth Attorney violated SCR 3.1304.2, which prohibitsdirect contact by a lawyer to an individual regarding the subject matter of the representationwhen the lawyer knows the individual is represented by counsel in the matter. The Commonwealth’s Attorney contacted Grace pursuant to a"sting" operation involving bribery for whichGrace had not yet been formally charged. Thus,there was no contact regarding the subject matterof the representation since Grace had not yetbeen formally charged and did not require representation at that point. The Court of Appealsheld that SCR 3.1304.2 was inapplicable be-

Page39


cause prosecutorial authorities involved in"sting" operations are not required to routecommunications in furtherance of the "sting"through the suspect’s attorney. Moreover, theCourt of Appeals pointed out that the purpose ofthe provisions of the Code of Professional Responsibility are intemal regulations prescribingthe standards of conduct for members of the bar.The remedy for a violation of a provision of theCode of Professional Responsibility has traditionally been internal bar disciplinary actionagainst the offending attorney, not the suppression of evidence at trial. Thus, the trial court wascorrect in refusing to suppress the evidence.

Fourth, Grace argued the trial court erred whenit failed to grant his motion for a mistrial whenevidence of the prior crimes, of obscuring theidentity of a vehicle and receiving stolen property, of which he had been found not guilty atthe first trial, was introduced at the second trial.The Court of Appeals held the evidence wasproperly introduced to prove Grace s motive forthe assault since it was after the police had impounded Grace’s vehicle for not having a VINnumber, a valid title or a bill of sale, that Graceassaulted the individual who had worked on theimpounded vehicle. In addition, the trial courttwice admonished the jury regarding the limitedscope of the evidence.

Accordingly, Grace s convictions were affirmed.

Wilson v. Commonwealth,Ky.App., - S.W.2d - 6/12/98

Fayette Circuit Court

Wilson was arrested after violating his parole asecond time. Before Wilson was transported tojail from the halfway house where he resided,the parole officers searched Wilson c car. In thetrunk they found several bags of marijuana and ascale. This discovery led to charges of trafficking in marijuana within one thousand yards of aschool and being a second degree persistent felony offender.

Wilson claimed the warrantless search of his carby the parole officers violated his Fourth

Amendment and Section Ten rights and movedto suppress the evidence seized from his car.

At the suppression hearing the parole officerstestified Wilson consented to the search of hiscar, but Wilson denied he had given consent.

One of the conditions of Wilson c probation, towhich Wilson had agreed, was to be subject tosearch and seizure based upon a parole officer’s"reasonable belief’ that Wilson had contrabandon his person or property. Thus, the trial courtfound that Wilson ‘s consent to search his carwas not necessary.

At the suppression hearing, the trial court concluded that for the seized evidence to be admissible, the Commonwealth had to show the paroleofficers’ had a "reason to believe" Wilson hadcontraband in his car. This standard is a lesserstandard than probable cause.

The trial court found the following facts weresufficient to demonstrate the parole officers’ hada reasonable belief that Wilson had contrabandin his car: 1 Wilson had $373.00 on his personat least a week after being paid and none of hisprior paychecks had been more than $317.00; 2after being arrested, Wilson asked the officer ifhe could call someone to pick up his car; and 3Wilson had been incarcerated on drug chargeswhen he was paroled and his first parole violation was for testing positive for drugs. Thus, thetrial court denied Wilson s motion to suppressand Wilson entered a conditional guilty plea tothe charged offenses.

The Court of Appeals affirmed the trial court’sorder denying Wilson ‘s motion to suppress.

Julie NamkinAssistant Public AdvocateDept. of Public Advocacy100 Fair Oaks Lane, Suite 302Frankfort, Kentucky 40601Tel: 502 564-8006, #279Fax: 502 564-7890E-mail: [email protected]*


DPA PERSONNELAPPOINTMENTS

Doug Crickmer, Assistant Public AdvocateFrankfort Trial Office as of 4/16/98Received J.D. from Univ. of North Dakota 1993

Harry Creamer, System Support TechnicianLaw Operations in Frankfort Office as of 5/1/98Received B.S. from Thomas More College 1993

Sally Wasielewski, Assistant Public AdvocateJuvenile Post-Dispositional UnitHenderson Office as of 5/1/98Received J.D.from U.K. School of Law in 1989

Sauda Brown, SecretaryCapital Trial Unit, Frankfort Office as of 6/1/98

Fred Johnson, Assistant Public AdvocateCovington Office as of 6/16/98Received J.D. from Chase Law School in 1997

Glenn McClister, Assistant Public AdvocateSomerset Office, as of 8/1/98Received J.D. from U.K. School of Law in 1997

Clay Bedford, Assistant Public AdvocatePikeville Office as of 8/1/98Received J.D. from Syracuse University in 1977

TRANSFERS

Barbara Carnes, Assistant Public AdvocateTransferred from Hazard Office to HendersonOffice as the Directing Attorney as of 8/1/98

RESIGNATIONS

Melinda Sears, InvestigatorPikeville Office on 6/2/98Employed with DPA since 8/96.

Melissa Bellew, AssistantElizabethtown Office as ofEmployed with DPA since

Public Advocate8/14/988/91.*

Don Muir, Paducah,Defender of 12 Years PassesAway

Don Muir, 61, passed away at Vanderbilt Hospital in Nashville on July 21, 1998.Don underwent surgery in June 1998 for esophageal cancer.

DPA Paducah directing attorney, Carolyn Keeley, observed, "Don has been withthe Department of Public Advocacy for a long time and many of you have knownand worked with him. He was a truly nice man and loved by all who knew him.He was our ‘grand ole man’ who knew everything about everyone in Western Kentucky. Always quiet. Always a gentleman. He always got the job done and in themost extraordinary ways. He leaves a very big hole in our Paducah DPA defenseteam and our hearts."

Don started with DPA on July 1, 1986. He served as directing attomey of the Paducah Office from March I, 1989 until December 15, 1994, and was a senior litigator there since then. Hegraduated from Vanderbilt University in 1959 and from the U.K. College of Law in 1965.

At the memorial service for Don at the Reidland United Methodist Church where he was a member of thefellowship, the minister said, "Don stood up for his clients and made a difference for them." At theservice, friends of Don talked about his gentleness. A Paducah Detective talked about how Don would dighis heels in for his clients but always in a professional way. Don is survived by his wife Marian whoworks in the circuit clerk’s office and three children, one of whom is a Paducah police officer. PublicAdvocate Ernie Lewis said, "We will miss Don greatly and will be thinking of his family and the staff ofthe Paducah office."


At the recent Annual Seminar, Public Defendersfrom all over the Commonwealth began to address the changes in criminal defense practicethat are coming as a result of the GovernorsCrime Bill. Three of the most experienced triallawyers in the state addressed the changes inTruth-in-Sentencing TIS. This article is asummary of their excellent ideas.

Chris Polk of the Jefferson District Public Defenders Office in Louisville, dealt with thechanges coming from the addition of victim impact information to the penalty phase. The legislature added the following language to KRS532.055: "The impact of the crime upon the victim, as defined in KRS 42 1.500, including a description of the nature and extent of any physical, psychological, or financial harm suffered bythe victim." As defense practitioners are wellaware, prior to this change only the trial courtreviewed victim impact material. Now the sentencing jury will see and hear it for themselves.

Chris urged a narrow construction of KRS421.500, the statute dealing with victim impactmaterials. The changes in TIS do not now empower a "society representative" to testify at atrial. There must be a victim. 421.500 sets outspecific crimes where there are victims. Examples of crimes with victims include homicides,robberies, rape, assault, sodomy, first and second degree burglary, wanton endangerment,stalking, unlawful imprisonment, terroristicthreatening, etc. Specifically not included aretheft and burglary third degree.

Not everyone can speak as a victim at a sentencing phase. Only one actually injured canqualify. The statutory scheme lays out a hierarchy of order as to who can speak if someone isabsent. The scheme must be followed, and is notan open invitation to many people testifying. Forexample, if the victim is deceased the order isspouse, adult child, parent, adult sibling, grandparent. etc. Only one of these people can speak.

The victim cannot speak about anything theychoose. The statute limits the testimony to harmdone. The categories of harm are physical, psychological, or financial harm. Emotional harmremains before theJudge, not the jury.

How to deal with the evidence is the toughestquestion for the defense team. Do we seek psychological records? Seek medical records forthings like preexisting conditions? Do we seekan evaluation under the guidelines of Commonwealth v Mack, Ky., 860 S.W.2d 275 1993?

The defense attorney must be prepared to dealwith direct comments to the defendant. Noopinion testimony is permitted at this stage ofthe proceedings. Opinions and statements concerning desired results can be presented to theJudge at formal sentencing. The rules of evidence apply in the sentencing phase. The defense attorney should raise issues under KRE403 where appropriate. Does the probative valueoutweigh the prejudicial effect?

Examination of the victim must be done withcare. The effect on the jury is one issue. Anotherissue is that doors must not be opened unlessintended to be opened. For example, in being avictim of violence has treatment been sought andobtained? Normally not an area to get into, unless the client has been an untreated victim ofviolence. That may serve to draw contrasts forthe jury in seeking leniency.

Finally, Chris reminded everyone that the original statute was unconstitutional. Reneer v.Commonwealth, Ky., 784 S.W.2d 182 1990allowed for toleration, but set out a case by casereview for abuse. It may be time to revisit theissue.

Steve Mirkin, the Directing Attorney of theElizabethtown Office, spoke on the possibilitiesof obtaining funding for the new issues raised


under the leniency changes. As of the effectivedate of the statute, "The defendant may introduce evidence in mitigation or in support of leniency." This is a significant change from priorlaw.

Steve reminded the listeners that no changeswere made in entitlements to KRS Chapter 31money. There are now more opportunities to useit in a meaningfifl way outside of death penaltycases. AOC Form 207 a copy follows this article is the form to use to obtain payment, butthat is at the end of the case. It is time for morepretrial discovery issues to be raised. You willneed more discovery so you will know what youneed to meet it. That includes knowing whetheror not you need an expert. For example, do youneed an occupational therapist to explain thevictims condition to the jury so they can betterunderstand it.

Steve also advised that the changes in the statutewent beyond adding more evidence. The legislature changed the formerly restrictive definitionof mitigation. The legislature added the wordleniency. They are different words with leniencyperhaps pointing more in the direction of capitalcase evidence. Cases like Lockett v. Ohio, 438U.S. 586, 57 L.Ed.2d 973,98 S.Ct. 2954 1978and Skipper v. South Carolina, 476 U.S. I, 90L.Ed.2d I, 106 S.Ct. 1669 1986 should be examined for application. Any records that supportdealing with a defendant less severely should besought. These include school, medical, family,etc.

Finally, Steve urged the audience to considerseeking funding for a mitigation investigator.This obviously would help with other experts,but it also makes sense in light of the changes toseek the assistance of someone trained to presentthe client’s story in the most favorable light possible. Steve urged the use of mitigation agsistance especially where the client has themselvesbeen the victim of abuse.

Rodney McDaniel, Directing Attorney for theFrankfort Office, spoke on effective uses ofmitigation evidence. Rodney has practiced before a judge that allowed more by the defensethan has been the norm in other counties. This

experience has allowed Rodney to explore theseissues long before the rest of us will have had toface them.

Rodney began with an exploration of setting upmitigation evidence in the guilt/innocence phase.For example, if one defendant cuts a deal in acase, exploration of the deal as mitigation mayprove beneficial. Arguments for consistency insentencing can be made. The effect of a sentencecertainly can be explored. For example the effectthat an escape charge will have on classification,especially if a codefendant bargained to get ridof the escape.

Extreme emotional disturbance can be used as adefense in the guilt/innocence phase as well as atopic to revisit in the penalty phase. This issimilar to what is found in capital cases.

As the prosecutor brings in evidence of paroleeligibility, prior record, and the nature of priors,the defense can respond with family members toexplain what happened in those priors. For example, alcohol related priors can be dealt with interms of subsequent treatment and it’s positiveeffect.

Age presents an area with several possibilities toexplore. Long sentences will effect young defendants and old defendants differently. Alsohow they have done in past incarcerations canhelp the argument that he will not be as big aburden on society.

Reputation of the defendant in his community isa fertile area to explore. If he has made positivecontributions, then seek community members tospeak about that. Also, if the victim had a reputation for violence, etc., that can also be pointedout.

Family support is something that often is important to jurors. Examples of visits at the jail,visits while in rehabilitation, financial support,etc. are often helpful. Especially if the family isacknowledging past problems like abuse.

Residual doubt issues are available. If the Commonwealth can rely on all the evidence placedbefore the jury in the first phase of the trial so

Page43


can the defendant. Weaknesses in the Commonwealth’s case can be reviewed.

Parole statistics is an area that needs revisiting.With the changes in the language of the statutethere is no reason not to pursue their introduction.

Expert testimony can be used even if the expertdid not find enough to make a defense in thefirst part of the trial. For example, is your clienta follower, not a leader.

Rodney concluded with a reminder that victimimpact evidence must be challenged. Perhapsnot so much in front of the jury, but long beforethe jury gets a chance to hear it. There is no substitute for pretrial motion practice.

In reviewing the materials for this article, I urgeanyone who has any specific questions to seekout these attorneys. The changes are significantfor the defense practitioner, and more importantly for the client. We have a unique opportunity to remold the law for penalty phases. Wemust take full advantage of that opportunity.

I have tried to be true to the ideas expressed byChris, Steve, and Rodney. Any confusion mustbe in my interpretation.

Roger Gibbs, Directing AttorneyDepartment of Public Advocacy408 N. Main Street, Suite 5Box 277London, Kentucky 40741Tel: 606 878-8042; Fax: 606 864-9526E-mail: rgibbsmail.pa.state.ky.us*

Prison Population: AssociatedPress

Region & Jurisdiction 1997 1996 % ChangeU.S. TOTAL 1,244,554 1,183,368 5.2

Federal 112,973 105,544 7.0

State 1,131,581 1,077,824 5.0

U.S. REGIONSNortheast 172,244 169,261 1.8

Midwest 216,757 204,657 5.9

South 491,956 469,252 4.8

West 250,624 234,654 6.8

KENTUCKY & ITS NEIGHBORSKentucky 14,600 12,910 13.1

Illinois 40,788 38,852 5.0Indiana 17,903 16,960 5.6

Missouri 23,998 22,003 9.1

Ohio 48,002 46,174 4.0

Tennessee 16,659 15,626 6.6

Virginia 28,385 27,655 2.6

West Virginia 3,172 2,749 15.4

AOC-207 Doc. Code: OPERev. 11-95

ommonwealth of Kentucky.,ourtof Justice

KRS Chapter 31ORDER FOR RECOVERYOr PAUPER EXPENSES

COMMONWEALTH OF KENTUCKY

VS.

PLAINTIFF

DEFENDANT

**** **** ****

The Court, having found certain requested expenses to befollowing findings as required by law:

reasonably necessary, and the Court having made the

1. That the said expenses are reasonably necessary to the presentation of the defense and fora full and fair hearing;2. That the expense is one which would be a "county expense’ under KRS Chapter 31;3. That the defendant has shown in what manner he expects to be assisted in his defense through the requested

funding; and,4. That the defendant has demonstrated that the use of any available state facilities is impractical;

IT IS HEREBY ORDERED AND ADJUDGED, pursuant to KRS 31.1002, 31.1102, 31.1601 b, and 31.2001, that

‘us expense is the statutory responsibility of County and that the Finance and Administration

cabinet shall pay

Address

Name

the sum of

______________________________

from either the special account maintained or from the Treasury as directed

in KRS 31.1853, and such payment shall be made on or before

______________________________________,

19

____

IT IS FURTHER ORDERED that those performing necessary services on behalfof the defendant pursuant to this ordershall document all expenses, and in the case of expert services rendered, the time involved and the hourly rate for thoseservices all of which shall be maintained confidentially by the trial court and the Cabinet. Such documentation shall beforwarded to the Finance and Administration Cabinet at the conclusion of the case. This Court reserves the right to monitorcompliance with the terms of this order.

IT IS FURTHER ORDERED that the Finance and Administration Cabinet shall maintain this order and the contentsthereof in a manner insuring confidentiality and precluding unauthorized disclosures and shall disclose information about theorder and its contents or the order itself only to the judge presiding over the case, the attorney for the defendant, and the payee,

___________________________________________________

unless directed to do otherwise by order of this Court. Allauthorized disclosures must be made in a manner which insures confidentiality and precludes inadvertent disclosures tounauthorized persons.

Entered this day of -

DISTRIBUTION:Court ClerkFinance and Administration CabinetAttorney for Defendant/Defendant

19

Judge

Case No.

Court

County_


PUTTING A FACE ON JUSTICEDefender Employment Opportunities

Are you interested in Putting A Face On Justice? If so, the Kentucky Department of Public Advocacymay be the place for you. This is a very exciting time for the Department. We are expanding many ofour current offices and will be adding five new offices by the year 2000.

Current Opportunities. DPA is currently seeking attorneys for the following trial offices: HendersonCounty. Perry County. Christian County, Hardin County, Franklin County, Hopkins County; McCrackenCounty, and Madison County. We are also hiring an investigator for the Henderson County office. DPAis also hiring two juvenile appellate attorneys to work in the Frankfort office. We have an attorneyopening in the Eddyville Post-Conviction office. We are seeking a Capital Trial Branch Manager whowill direct the trial level death penalty defense effort statewide. We are seeking legal secretaries in HardinCounty; Kenton County and Madison County.

Opportunities in the Next 2 Years. Our expansion will continue into the next two years. In 1999, wewill be opening offices in Daviess County, Warren County, Adair County and Johnson County. In 2000,we will open an office in Mason County. We are seeking both entry level and experienced attorneys forthese vacancies, including office directing attorneys. We will also be hiring investigators for each of thoseoffices.

Contact the DPA Recruiter. If you would like to Put A Face On Justice, contact Sarah Davis Madden, Recruiter, at the Department of Public Advocacy, Division of Law Operations, 100 Fair Oaks Lane,Suite 302, Frankfort, Kentucky 40601, phone: 502-564-8006, extension 136, fax: 502-564-7890, email:smaddenmaiI.pa.state.ky.us.

Louisville & Lexington. For defender employment information in Louisville, contact Daniel T. Goyette,Jefferson District Public Defender, 200 Civic Plaza, Louisville, Kentucky 40202; Tel: 502 574-3720;Fax: 502 574-4052. In Lexington, contact Joseph Barbieri, Fayette County Legal Aid, Ill ChurchStreet, Lexington, Kentucky 40507; Tel: 606 253-0593; Fax: 606 259-9805.

Access our Web Page. To remain updated on our job listings or to learn more about the Departmentcheck out our web page at http://dpa.state.ky.us.career.htm.U

Sarah Davis Madden, DPA’s Recruiter

Sarah Davis Madden received her Juris Doctorate from Salmon P.Chase College of Law in 1985. She joined DPA as the Recruiter inMarch 1998. Sarah began her legal career with Cumberland TraceLegal Services. Leaving there, she did a short stint with the Kentucky Court of Appeals before spending several years in privatepractice. Immediately prior to coming to DPA, she was employed bySalmon P. Chase College of Law.


HOUSE BILL 455DEMANDS COOPERATION- VERTNER TAYLOR

The Probation & Parole Perspectiveon PSI, Restitution,Pretrial Diversion,SupervisionFee, SexOffenderRegistration,Pre-Release

A massive piece of legislation was created withthe passage of the Governor’s Crime Bill. TheBill covers the implementation of a new Criminal Justice Council to replace the Crime Commission plus the establishment of new penaltiesand offenses. This article does not allow in-depth coverage of the 212 page document, butrather is an executive summary of the issues thataffect the Division of Probation and Parole inthe Kentucky Department of Corrections.

Presentence Investigation Report

House Bill 455 states:

The presentence investigation reportshall identi& the counseling treatment,educational and rehabilitation needs ofthe defendant and identify community-based and correctional-institutional-based programs and resources availableto meet those needs or shall identify thelack of programs and resources to meetthose needs.

The Presentence Report for the court will nowhave included in the evaluative summary information regarding the availability or lack thereof, of rehabilitation, treatment and educationalprograms. The document will highlight what isavailable in the community and in the institutions. However, the report will not be an alternative sentencing plan. The information that thedefendant gives the officer regarding his or herneeds will be the areas addressed. For example,if a defendant states they have no problem withdrugs or alcohol, but the defendant was underthe influence when the crime was committed,

the officer will include in his report the drug andalcohol programs available in the immediatearea. If a client has a specific need, the probation and parole officer must be made aware ofthat information.

Restitution

Section 46 - A New Section of KRS Chapter532: When a judge orders restitution, the judge shall:

I. Order the restitution to be paid to a specificperson or organization through the circuit clerk,who shall disburse the moneys as ordered by thecourt;

2. Be responsible for overseeing the collectionof restitution;

3. Set the amount of restitution to be paid;

4. Set the amount and frequency of each restitution payment or require the payment to bemade in a lump sum;

5. Monitor the payment of the restitution toassure that payment is being made;

6. If restitution is not being paid as ordered,hold a hearing to determine why the restitutionis not being paid;

7. If the restitution is not being paid and nogood reason exists therefore, institute sanctionsagainst the defendant; and


8. Not release the defendant from probationsupervision until restitution has been paid in fulland all other aspects of the probation order havebeen successfully completed.

Section 47 - A New Section of KRS Chapter

I. When there is an identified victim of a defendant’s crime to whom restitution has beenordered but not yet paid in full, or restitution hasbeen ordered paid to a government agency andhas not yet been paid in full, the Parole Boardshall order the defendant to pay restitution as acondition of parole.

2. When the Parole Board orders restitution,the board shall:

a. Order the restitution to be paid to a specific person or organization through theDivision;

b. The Division of Probation and Paroleshall be responsible for overseeing thecollection of the restitution;

c. Set the amount of restitution to be paid,if not already set;

d. Set the amount and frequency of eachrestitution payment or require the payment to be made in a lump sum;

e. Monitor the payment of the restitution toassure that payment is being made;

f. If restitution is not being paid as ordered, institute parole violation proceedings to determine why the restitution is not being paid;

g. If the restitution is not being paid and nogood reason exists therefore, institutesanctions against the defendant; and

h. Not release the defendant from parolesupervision until restitution has beenpaid in full.

3. The board, in addition to any other sanctionswhich may be imposed on the defendant, ask acourt to hold a defendant who is not paying restitution in the manner or amount prescribed incontempt of court.

4. Any statute relating to the length of parolesupervision notwithstanding, the parole for aperson owing restitution shall be until the restitution is paid in frill, even if this would lengthenthe period of supervision beyond the statutorylimit of parole supervision or the statutory limitfor serving out the sentence imposed.

5. Payment of restitution in full prior to the endof the period of parole supervision shall notshorten the period of parole supervision.

The issue of restitution has been given newmeaning by the Crime Bill. When restitution isordered by the court or the Parole Board the offender can not be released from supervision untilthe restitution is paid in full. This in essencecould require a person to remain on supervisionfor life. The law specifies that the person maybe supervised past their statutory limit in orderto complete restitution. The Division of Probation and Parole expects a tremendous growth incaseloads in the future due to the provision ofpermanent probation/parole.

One sweeping change that does NOT impacthow the Division of Probation and Parole doesbusiness is the alternative sentencing languagein the Crime Bill. This agency may be calledupon to supervise but has no other role in thatarea.

Pretrial Diversion

Section 88. A New Section of KRS Chapter 533

I. The provisions of KRS 533.020 relating tothe period of probation shall, in so far as possible, be applicable to the period of pretrial diversion except that supervision of the participantsin the programs shall be done by the Division ofProbation and Parole.

2. The provisions of KRS 533.030 relating toconditions of probation and restitution shall, inso far as possible, be applicable to pretrial diversion. Restitution shall be ordered in all caseswhere a victim has suffered monetary damage as

439


a result of the alleged crime. Restitution to theslate, or the victim, or both, may be ordered inany pretrial diversion program.

Section 89 - A New Section of KRS Chapter533

I. If the defendant fails to complete the provisions of the pretrial diversion agreement withinthe time specified, or is not making satisfactoryprogress toward the completion of the provisionsof the agreement, the Division of Probation andParole, the victim, or a peace officer may informthe attorney for the Commonwealth of the alleged violation or noncompliance, and the attorney for the Commonwealth, may apply to thecourt for a hearing to determine whether or notthe pretrial diversion agreement should bevoided and the court should proceed on the defendant’s plea of guilty in accordance with thelaw.

2. In making a determination as to whether ornot a pretrial diversion agreement should bevoided, the court shall use the same criteria asfor the revocation of probation, and the defendant shall have the same rights as he or shewould if probation revocation was sought.

Pretrial Diversion requires the involvement ofthe Commonwealth Attorney and the Court.The Division of Probation and Parole has no roleuntil the decision is made, then these individualswill be supervised as any other probationer. It isunderstood that the person has not lost the rightto vote or hold public office. However, with thecourt’s approval, a provision will be imposedthat no offender may carry or possess a weapon.This is for the officer’s safety.

The probation officer will notify the Commonwealth Attorney of any violations, and it is up tothe court and the Commonwealth Attorney toproceed with revocation, utilizing the same standards as for regular probation hearings. Once aperson completes this program the charges willbe listed as dismissed/diverted. That informationwill be included in any future Presentence Report.

The pretrial diversion statute allows the court toestablish a diversion supervision fee to defraythe cost to supervise. The Division of Probationand Parole will ask the court to impose a slidingscale based on the person’s ability to pay.

Supervision Fee

Another area of change involving the collectionof fees from offenders is the amount of theregular supervision fee. That fee language hasbeen changed in the crime bill to read that aconvicted felon may pay no more than $2,500PER YEAR. The old language was $2,500during the period of supervision.

SexOffender Registration

Section 138-KRS 17.510

If a person is required to register as a sexoffender under federal law or the laws ofanother state or territory, or if the person hasbeen convicted of an offense under the lawsof another state or territory that would require registration under this section if committed in this Commonwealth, that personupon changing residence from the other stateor territory of the United States to the Commonwealth or upon entering the Commonwealth for employment, to carry on a vocation, or as a student shall comply with theregistration requirement of this section. Asused in this subsection, "employment" or"carry on a vocation" includes employmentthat is full-time or part-time for a period exceeding fourteen 14 days or for an aggregate period of time exceeding thirty 30days during any calendar year, whether financially compensated, volunteered, or forthe purpose of government or educationalbenefit. As used in this subsection, "student" means a person who is enrolled on afull-time or part4ime basis, in any public orprivate educational institution, including anysecondary school, trade or professional institution, or institution of higher education.


Sex Offender Registration has brought changes.The Ièderal government is attempting to standardize registration and notification proceduresfor all sex offenders. Probation and parole officers now must register all sex offenders whenthey report to the Probation and Parole office.Even though this process increases the officers’workload, it is important for the public’s safety.Without the requirement for registration, theoffender could have lived in Kentucky withoutanyone’s knowledge. The sheriff will handle theissue of notification. That process will not be inplace until December 1999.

Pre-Release

Section 119 - A New Section of KRS Chapter

I. There is hereby created a program for prerelease probation of inmates confined in correctional facilities under the jurisdiction of or undercontract to the Department of Corrections.

2. Any inmate who is in a prerelease programor eligible for a prerelease program as specifiedby administrative regulations of the Departmentof Corrections may apply to the sentencing courtfor prerelease probation.

3. The court, upon favorable recommendationof the Department of Corrections, may place theinmate on probation under those terms and conditions the court deems necessary, which mayinclude but not need to be limited to those specified in KRS 533.030.

4. In particular, the court may require that aninmate placed on prerelease probation remain ina halfway house approved by the Department ofCorrections and that the probationer pay the costof his or her lodging in the halfway house andthe costs of probation supervision in accordancewith applicable statutes for probation supervision and persons granted work release from jail.

5. An inmate placed on prerelease probationshall no longer be considered as an inmate of theDepartment of Corrections but shall be consid

ered as a defendant placed on probation, subjectto supervision by the Division of Probation andParole, or other agency approved by the court,and the orders of the court.

6. A person placed on prerelease probation bythe court who violates the conditions of his orher probation may be dealt with by the court inthe same manner as any other person who violates the conditions of probation.

7. The period of probation under this sectionshall not exceed the maximum expiration date ofthe inmate applying for the probation.

The Department of Corrections is responsiblefor recommending to the courts persons who areeligible for prerelease programs. This in no wayshould be confused with the prerelease programthat the Institutional Parole Officers conductwith inmates prior to meeting the Parole Board.A risk assessment instrument that was developedfor the Parole Board by the National Institute ofCorrections will be utilized as the basis for determining eligibility and program involvement.That July 14, 1998 policy is attached.

The Governor’s Crime Bill encompasses a largepart of the criminal justice system and will havemany effects that are not yet obvious. However,it is known that probation and parole caseloadswill greatly increase. Cooperation among thevarious criminal justice agencies is essential ifwe expect to be effective in protecting the citizens of this Commonwealth.

Vertner L. Taylor, Deputy CommissionerCommunity Services & Local FacilitiesKentucky Department of Corrections514 State Office BuildingFrankfort, Kentucky 40601Tel: 502 564-7023; Fax: 502-564-5229E-mail: vltaylormail.state.ky.usU

439

Great works are performed not bystrength, but by perseverance.

- Samuel Johnson

KENTUCKYCORRECTIONS

Policies and Procedures

Policy Number NEW

27-1 1-02

Total Pages

Date Issued

August 1, 1998

Effective Date

July 14, 1998

References

KRS 439.470, Kentucky ActsChapter 606, Section 119

Subject

PRERELEASE PROBATION

AUTHORITYThis policy is issued in accordance with: Kentucky Acts Chapter 606, Section 119 whichinstitutes a program of prerelease probation; and KRS 439.470 which authorizes theCommissioner of the Department of Corrections Corrections to make rules regardingprobationers and parolees.

II. PURPOSETo set forth procedures to govern the administration

III. APPLICABILITYTo all employees of Corrections and all offenders.

IV. DEFINITIONSNone

of prerelease probation.

V. POLICYIt is the policy of Corrections that inmates who receive a low score on the risk assessment scaleshall be given a favorable recommendation for prerelease probation to the sentencing court.

VI. PROCEDURES

A. Criteria

I. The following individuals shall be excluded from consideration. An inmate:a. who has committed a crime in which a life was taken or the victim

suffered serious physical injury;b. with an outstanding felony detainer; orc. with a major violation.

2. To receive a favorable recommendation to the sentencing court, the inmate:a. shall be eligible for probation or shock probation;b. shall have a home placement within the Commonwealth of Kentucky;

andc. shall receive a score in the low category on the risk assessment;

B. Responsibilities of Caseworkers and Probation and Parole Officers Officer

I. A file shall not be reviewed prior to the passing of the one hundred eighty 180day shock probation period.

2. The caseworker shall complete the risk assessment within sixty 60 days ofreceiving a written request for consideration from the court.

3. The Officer responsible for the Class D program shall complete the riskassessment within sixty 60 days of receiving a written request for considerationfrom the court.

4. The caseworker or Officer shall forward the completed risk assessment to theDeputy Warden or District Supervisor for review.

5. The inmate shall be informed of his risk assessment score. The score shall not beappealable or grievable.

C. Responsibilities of Deputy Warden or District SupervisorIf the inmate receives a score in the low category, the Deputy Warden or DistrictSupervisor shall review the assessment, presentence investigation report and whether theinmate has successfully completed any specialized program including GED, Boot Campor SAP, to determine whether a favorable recommendation shall be made to thesentencing court. A decision and recommendation shall be made within thirty 30 daysof receipt of the risk assessment to forward to the sentencing court.

D. Violations of Prerelease ProbationAny violation of court imposed conditions shall be governed by Kentucky Acts Chapter606, Section 119.

E. The period of supervision shall be governed by Kentucky Acts Chapter 606, Section 119.

898Kentucky Department of Corrections

PrereleaseProbation - Risk AssessmentScale

Inmate Name: Number:___________________________

fl Inmate is NOT eligible for Prerelease Probation due to:

fl Current crime involves life being taken or serious physical injury to victim

fl Has an outstanding felony detainer

J Has committed a major rule violation

Is not eligible for probation

fl Does not have a home placement in Kentucky

IF THE INMATE APPEARS ELIGIBLE, COMPLETE THE FOLLOWING BY ENTERING THEWEIGHT OF EACH ITEM ON THE LEFTUSING INFORMATION IN THE PSI, INMATE RECORD,SELF-REPORTOR OTHER AVAILABLE DOCUMENTATION.

Age at first arrestIf unknown, enter age at arrest for the current arrest3 0-16 years2 17-21 years1 22-28 years-1 29andover


Any prior escapes? 6. Was the victim injured in the currentI Yes olicnse?0 No 3 Yes

0 No2 . Juvenile criminal history record

2 Yes 7. Record of substance abuse as ajuvenile?I Not stated 4 YesO No 0 No

3. More than 3 prior arrests 11w Robbery, Rape, 8. Record of mental health concerns?Felony. Assault, Kidnap, Agg. Burglary? I YesI Yes o No0 No

9. Record of alcohol abuse?4. Any prior parole revocations? 2 Yes

I Yes 0 No0 No

10. Did the inmate get a high school diploma5. Was a weapon used in the current offense? or GED?

4 Yes I Less than HS0 No 0 US or GED

SCORE RJSK LEVEL-ITO 6 LOW7T0l4 MEDIUM

151027 HIGH

TOTAL RISK SCORE

Prepared by:

___________________________________________________________

Date:

SUPERVISOR’S REVIEW/FINDINGS:

Inmate is eligible for Prerelease ProbationInmate is NOT recommended for Prerelease Probation

Comments:

Signature: Date:

Distribution: White - to CourtYellow - to Inmate FilePink - Offender Record


"RESPONSIBILITY" AND THE INSANITY

DEFENSE: LEGAL, MORAL, OR

PSYCHOLOGICAL?

Recently, the highly regarded mental health lawprofessor Chris Slobogin III made the followingInternet inquiry:

I wonder if anyone agrees with this: I Whena mental health professional testifies thatsomeone is sane or insane, he or she is sayingthat the person should or should not he heldresponsible for the crime. 2 That conclusionis a legal/moral one about which the mentalhealth professional has no "expertise" as opposed to personal opinion. 3 Therefore, sotestifting i.v a violation ofthe ethical rule thatmental health profevionals should not testjfi’on matters beyond their competence. 121

We would disagree with this assertion, at least inthe context of the courtroom use of mental health"expertise." Other contexts will be explored infra.

To use Kentucky law as an example:

"Insanity" means that as a result of mentalcondition, [one lacksJ substantial capacityeither to appreciate the criminality of one’icconduct or to conform one’v conduct to therequirements of law. 131

Furthermore, a person is "not responsible forcriminal conduct" if he or she is determined tohave been insane at the time that conduct occurred. II

When, as Professor Slobogin put it, "a mentalhealth professional testifies that someone is saneor insane," that expert is not asserting that "theperson should or should not be held responsiblefor the crime," but rather is concluding that theprerequisite condition for a legal finding of"criminal non-responsibility" 151 exists.

This perspective should not be confused withevasion of testimony as to the "ultimate issue,"inasmuch as the determination of "sanity" is thevery essence of such an issue.

If one were to subscribe to the reasoning outlinedsupra, forensic psychologists should decline toperform competency to stand trial evaluationsbecause of insufficient "expertise" to determinewhether a profoundly mentally retarded defendantshould stand trial in a court of law, and clinicalpsychologists should refuse to accept a psychiatrist’s referral for an assessment of Depression,because of insufficient "expertise" to determinewhether the patient should be treated with medication.

Consider how the argument Professor Slobogindescribed would fare when the law changes in aparticular jurisdiction, such that persons who are"insane" are then to be tried for their criminalconduct.

Taken to its extreme, the perspective presentedwould obviate forensic mental health testimonyaltogether, due to mental health professionals’hopes that judges and juries will afford experts’opinions significant consideration in arriving atdecisions of their own.

To examine this issue another way, there are eightprogressive conclusions in the criminal responsibility calculus and its resolution:

I Clinical C’onclusion: Defendants sufferedfrom a mental condition.

2 Forensic Conclusion: Defendants lackedsubstantial capacity either to appreciate the

TheAdvocate,Vol. 20, No. 5 September1998

criminality of their conduct or to conformtheir conduct to the requircments of law.

3 Forensic Conclusion: The incapacit[ies]described in 2 resulted from the conditiondescribed in I.

4 Forensic Conclusion: Defendants were "insane."

5 Legal Conclusion: We agree; defendants were"insane."

6 Legal Conclusion: Defendants who were"insane" are not criminally responsible.

7 Legal Conclusion: Defendants who are not"criminally responsible" shall not be tried.

8 Legal Conclusion: Defendants who are not"criminally responsible" shall be subject toinvoluntary civil commitment proceedings.

Forensic scholars are likely to argue about whatcombinations of2, 3, and, in particular, 4would constitute the stuff of testimony to the"ultimate issue." 6, 7 and 8 are conclusionsof law, about which an expert need never be askedin order to elicit "ultimate issue" testimony. Infact, an expert’s opinion in this regard would beirrelevant.

A legal conclusion regarding "sanity," and thosesubsequent thereto, all flow from, but do notequate with, a persuasive forensic conclusion.

If there is a compelling argument against theprovision of"ultimate issue" testimony on the partof mental health professionals, we do not believethat the one described will suffice. In effect, it"skips over" the true "ultimate issue" controversyin its assumption that influencing a "legal" opinionand dictating its implementation are one and thesame thing.

When mental health "expertise" is applied in othercontexts, such as testimony to those "making"rather than "applying" the laws i.e. legislators,the contours of the scientific role may change

significantly. In this context, the scope of testimony will likely include the full range of psychological knowledge clinical, social, cognitive,experimental instead of being limited primarilyto one’s area of practice specialization.

Over the years, the courts have attempted to utilizepsychological science to define the laws regardingmental health issues. It may be argued that therehas been a sea change in this relationship, as theimplications of Daubert [61 become clearer all thetime: It is now the judges who decide what hasscientific merit, not scientists who guide interpretation of the law. Just as scientists once sat constructively on the bench, now the judges havearrived in the laboratory.

REFERENCES

Ill Professor Slobogin provides an eloquent andscholarly discussion of "ultimate issue" testimony inMelton, 0., et a!. 1997. Psychological Evaluationsfor the Courts 2d Ed.. New York: The GuilfordPress.

l2l PSYLAW-L4UUTEPVM.UTEP.EDUPSYLAW-L.. 21 May 1998. Owners: Roy Malpass,Doug Narby University of Texas - El Paso.

131 KRS 504.060 5.

141 KRS 504.020l.

Il See, for the initial application and delineationof this terminology, American Bar Association. 1989.ABA Criminal Justice Mental Health Standards.Washington: American Bar Association.

161 Daubert v. Merrell Dow Pharmaceuticals, 113S.Ct. 2786 1993.

Eric Drogin, Ph.D.Box 22576Louisville, Kentucky 40252-0576Tel: 502 629-8885; Fax: 502 629-7788E-mail: [email protected]

Curtis Barrett, Ph.D.Box 35070Louisville, Kentucky 40232-5070*

The Advocate, Vol. 20, No. 5 September1998

DEFENDERS CELEBRATE ON BEHALF OF KENTUCKY’S POOR,AND SINGLE OUT ADVOCATES FOR SPECIAL RECOGNITION

Over 350 people came to the 26" AnnualKentucky Public Defender Conference to celebrate the Department of Public Advocacy’s DPAfirst year of the second quarter-of-a-century. TheConference was held at the Holiday inn North,Lexington, Kentucky on June 15-17, 1998.

This conference offers workshops on post-conviction and appellate, juvenile and capitallitigation as well as an opportunity to meet andassociate with others locally and nationally whorepresent clients accused of crimes.

The attendees included public defenders andcriminal defense attorneys from across the state.The Conference theme was: Persuasive Defenses,Creative Negotiations, and Juvenile Litigation.This is Kentucky’s largest yearly gathering ofdefense advocates and it offers the state’s greatestvariety of criminal defense education.

Awards were presented at the conferencerecognizing some special people to our Kentuckydefenders.

THE C J

The Public Advocate Award recognizes thosewho have uncommonly fostered fair and reliableprocess for those accused of or convicted of acrime. Lewis presentrd the first award to the

person recognized statewide "Ci." "And this isnot Charles Johnson the basketball player. Howmany of us have any doubt who the CJ is inKentucky? It is a great honor for us as publicdefenders, Chief Justice Stephens, for you to behere. Chief Justice Stephens is at the pinnacle ofa long and productive career starting withprivate practice, Fayette County judge for fiveyears, Attorney General for four years, Justice ofthe Supreme Court since 1979, served on theUK Board of Trustees, Senior Warden/Vestrymember at Christ Church Episcopal inLexington, and the CJ since 1982. Chief JusticeStephens has been an innovator and leader inKentucky specifically in Kentucky’s courtsystem for some time. He led the campaign toform merged city-county government before hebecame part of the Supreme Court. He led theway on the use of videos in our court system, ledthe way on the use of family courts, led the wayon uniform rule making, led the way on genderand equity, led the way on the focus on domesticviolence, led the way on KERA, and hasattacked racism in our court system. Note theactive use of the verb led because the CJ definesleadership in the state. He also brings to his joba gentle spirit and I will go back and look whenI first became a public defender. The prosecutorat the time, the attorney general was JusticeStephens and my knee jerked quite quickly as hejoined the Court and at the time it was very

i*

KIErnie Lewis presenting the Public Advocate Award

to Chief Justice Robert F. Stephens

TheAdvocate, Vol. 20, No. 5September 1998

common for the Kentucky Supreme Court tocriticize public defenders for fly specking therecord among others and there was something ofan adversarial feel about public defenders andthe Courts. Not so with this Chief Justice. ThisChief Justice exercised leadership in this area aswell. Legitimating our roles as public defendersevery time I ever heard him talk. He praisedpublic defenders for the work that we do and Ithank you Mr. Chief Justice for bringing us intothe tent, making us feel welcome in the Bar, andeven valued members of the Bar. He has been afriend of public defenders and Public Advocates.To quote Paul lsaacs, "During my tenure as statePublic Advocate, Chief Justice Robert Stephenswas a true friend to the Department of PublicAdvocacy. He supported the Departmentthrough his appointments to the PublicAdvocacy Commission by appointing peoplewho were concerned and actively involved inimproving the Department of Public Advocacy.To quote from Allison Connelly, a wonderfulletter that she wrote on your behalf in oneparagraph, " nevertheless what I find to be themost amazing trait about the Chief is that afterall his years of public service to our state he hasnever become cynical. Rather, he remains a manwith an inexhaustible capacity for enjoying life,who possesses unexpected sensibility andjoviality placed with toughness. In short, he isone of a kind. He has taught all of us that aslawyers we can and must make positivecontributions to people’s lives. We will neverforget the contributions he made to our systemof justice. And Dan Goyette, notwithstandingthe many accolades and awards ChiefJustice

Stephens has now received lhr his progressiveleadership of the Court of Justice, we will notfully appreciate him until he has leti the court.Certainly he has been a staunch supporter of awell-balanced and properly funded criminaljustice system and in that respect he has been afriend and ally of the public defenders over theyears up and unto and including the justcompleted session of the General Assembly. Ihave no doubt he will be sorely missed by thedefender community. You have honored us aslawyers Mr. Chief Justice by your term on theCourt, you have honored us as public defendersby your presence here tonight, and you havehonored us as Kentuckians by the life that youhave led. It is a pleasure to give you a PublicAdvocate’s Award tonight."

CHIEF JUSTICE STEPHENS REMARKS

"If you talk much more, I won’t be able to talk atall. Ernie, thank you. I was going to make a 20minute speech but the new KBA President tookmy speech away from me. Seriously, I’m verygrateful. The decision for me not to run was notan easy one. But 16 years is a long time in thesaddle of running the court system in this state, Ithink, my successor. I think you will enjoy agood relationship with him. He’s a very brightman, he’s a very fair man, very hard workingman, has all the right values. I disagree with himon some of his decisions but that’s healthy andall part of the game.

Now, this award is very special to me, hut I’mgoing to tell you. As in any case, for any individual, man or woman, there’s always somebody

Ernie Lewis presenting the Public Advocate Awardto Senator Gerald Neal

Ernie Lewis presenting the Public Advocate Awardto Representataive Jesse Crenshaw


else that is more deserving of it. And those ofyou that know me, know it’s true. She’s beenwith mc all 16 years. She was just 10 when Iemployed her. She has been my right arm, myadvocate, but most importantly my socialconscience, she’s been there when I made policydecisions, she’s been there when administrativedecisions have been made involving this organization and some of the lawyers, and withoutletting any secrets out too much, she’s been thereeven when some decisions were rendered. I’mtalking, of course, about Susan Clary. JoeLambert will do well to listen to you. Susan.

As has been said here tonight, much has beendone, but there’s much more to be done. I don’tknow what the future holds for me, I hope I donot retire from the world or retire from work butwhen I’m around in whatever capacity I end up,if I can help you in any way - I’m not a verygood fund raiser, so don’t ask me to do that - butin any way that I can help you to improve yourlot, especially if you’re in the legislative time,I’m here. All you have to do is call me and tellme a little bit of what you want and I’ll make upthe rest. I believe with all my heart now, as Ibelieved many years ago, even as a prosecutor.every person deserves the representation of acompetent lawyer who has the proper resourcesto defend him or her in criminal cases. JohnRosenberg. I also believe the same is true in civilcases. It’s been one of the benchmarks that I’vetried follow as ajudge and I shall follow if I evergo back to the practice of law. I want to tell allof you here tonight, you don’t have to worry

Ernie Lewis presenting the Public Advocate Awardto Vanessa Callman with the

Lexington Herald-Leader Editorial Board

about me competing as a defense lawyer if you’llforgive and permit the pun. ‘S’trickland speakingI would not be competent" Again. I thank all ofyou for all of the work you’ve done, all the loveyou’ve given for gross underpaid. Without you,to make our system at least a little bit towardsthe level playing field, our system, our democracy, our republic is too close to what it needs tobe and what you have made it. Thank you somuch.

ROSA PARKS AWARD

The Rosa Parks Award was presented to FatherPatrick D. Delahanty, Chair of the KentuckyCoalition Against the Death Penalty. Establishedin 1995, this award is presented to a non-attorney who has galvanized other people intoaction through their dedication, service, sacrificeand commitment to the poor. Father Delahantywas honored for his vision and passion andpersistence on passage of the Racial Justice Act.Pat has taught defenders how to hope. Receivinghis award, Father Delahanty said, "I am verypleased to be here this evening to accept thisaward from the Department of Public Advocacy.I accept it as a tribute not only for the work Ihave done, but also as a tribute to so manyothers who have worked and are working to endthe death penalty in Kentucky and in the nation.

783 years ago today, King John of Englandsigned the Magna Carta allowing the accused a

Ed Monahan presenting the Rosa Parkc Awardto Father Patrick D. Delahanty


trial by a jury of peers. This dramatic change inthe administration f justice was one of the mostimportant developments in the history of law.Yet, even this act, and the jurors, then and now,are only human. And they still make mistakesand reach wrong conclusions. The sad reality isthat an innocent person’s liberty - and inKentucky, one’s life - can be taken away by 12mistaken peers.

Of course, liberty can be restored. Life cannot.And that’s one of the chief reasons so many of ushave concluded that the death penalty must beabolished and abolished as quickly as possible.

But, it will not disappear overnight, and so wemust be prepared to do battle with this injusticefor many years to come. This delay in achievingour goal should not overwhelm or dishearten us.Mohatma Ghandi did not lose heart when theBritish refused to leave India. Rather, hestruggled all the more to see that it happened.

If, on November 30, 1955, you asked a blackresident of Montgomery, Alabama if she thoughtshe could ever ride on the bus and not have togive up her seat to a white man, she would havelooked at you like you were crazy. One daylater, the answer changed. And a year and 25days later, the Supreme Court ruled that the cityof Montgomery could no longer operate asegregated bus system.

Rosa Parks’ action became the catalyst needed toignite the modern civil rights movement.

It took more long years of protest, struggle anddeath to get Congress to pass and a President to

sign important civil rights legislation. It hastaken far longer to change the attitudes and thehearts and minds of many of our fellow citizens.The lynching of James Byrd in Jasper, Texas lastweek is a stark reminder of how far we have notcome.

The continuous "serial murdering" of men, women and children by the people of our variousstates shows us how far we still have to go.

But, like Ohandi, Parks, Dr. Martin Luther King,Jr., and hundreds of others, we cannot and willnot be deterred. We have ended the deathpenalty for mentally retarded persons in thisState; we have passed the first law in this nationto address the blatant racism known to existwherever the sentence of death is imposed; wewill ultimately abolish this punishment entirely.

I really cherish the honor you bestow on me thisevening because I have such deep respect for thework you do and I admire how you have chosento use your skills and your time to defend theindigent, especially the condemned. Thank youvery much.

In Re Gault

The In Re Gault Award was presented to KimBrooks, Director of the Northern KentuckyChildren’s Law Center, Inc. This award honorsthe person who has advanced the quality ofrepresentation for juvenile defenders in theCommonwealth. Public Advocate Lewis inaugurated this award this year to emphasize thecritical importance of the defense of ourchildren.

Ernie Lewis presenting the Gideon Awardto Ed Monahan

Dan Goyette presenting the Nelson Mandela LjfetimeAchievement Award to Col, Paul 6. Tobin


Ms. Brooks said she was deeply honored to bethe first recipient of this important symbol of thevalue of enhancing representation of children.

Nelson Mandela Lifetime Achievement

The Nelson Mandela Ljfetime AchievementAward was presented to Col. Paul C. Tobin,former Executive Director of the JeffersonDistrict Public Defender’s Office. Established in1997, this award honors an attorney for alifetime of dedicated services and outstandingachievements in providing, supporting, andleading in a systematic way the increase in theright to counsel for Kentucky indigent criminaldefendants.

Col. Tobin said, "I have some good news forthose of you who have come to know me asbeing somewhat more than voluble... The goodnews is that I am truly speechless.

But, nevertheless, let me say without becomingmaudlin that I am somewhat doubtful that I amworthy of this honor but appreciative that youshould think I am. I hasten to add that were itnot for the dedicated men and women who madeup the team I was able to assemble I would nothave realized the achievement I hoped for.

The Nelson Mandela Ljfetime AchievementAward..,named in honor of one whose verymention conjures up visions of perseveranceover a lifetime dedicated to human rights...AND . . . isn’t that what we Public Defenders areall about?

Ernie Lewis presenting the In Re Gault Awardto Kim Brooks

I have always viewed our Bill of Rights as beingexpressive of those freedoms all human beingsshould enjoy. It would be carrying coals toNewcastle for me to enumerate them to you - butI’m speaking, of course, of speech, religion,assembly... and freedom from unreasonablesçarch and seizure of property or person.

But the greatest - by far - is the right to counsel.That is because all those rights set out in theUnited States and Kentucky Bill of Rights areprotected by and insured by the right to havecompetent counsel and the right to have thatcounsel heard.

I didn’t receive a joyful reception in Louisvilleand it wasn’t because I was an army colonel.., noit was because I was going to be a PublicDefender. One of my first experiences as acivilian was to be ushered into the presence ofone of the criminal judges in Jefferson Countyand introduced as the new Public Defender."HMF," hizonor grunted, "what we need is apublic defender!"

Ignoring the sarcasm, I simply agreed, "Yes,judge," I said, "what we need is a PublicDefender - and now just maybe we’ll experiencea bit ofjustice here."

I don’t think that got me started well with thejudge but I am proud to say that’s just what weaccomplished: hearing the sounds of Gideonctrumpet and with Bradshaw v. Ball following weestablished an ethical aggressive team andproceeded to provide competent counsel to our

Ernie Lewis presenting the Pub/ic Advocate Awardto Senator Ernesto Scorsone


clients, the economically disadvantaged, andthereby virtually eliminated the old "sugar bowl"appointment system.

A "sugar bowl appointment" was a benchappointment with concurrent license to look fora sugar bowl. If there was a sugar bowl with fiveor so dollars in it there might be some modicumof defense -- if there wasn’t there would surelybe a guilty plea irrespective of the facts.

Sometimes it took a trip to the U.S. SupremeCourt - but nevertheless I believe the PublicDefender has infused the system with a changeof attitude respecting the criminal practice andcome pretty close t give us that for which westrive -- JUSTICE FOR ALL."

The Herald-LeaderEditorial Board

The Lexington Herald-Leader was presentedwith a Public Advocate’s award for theircoverage of the funding needs of Kentucky’spublic defender system and the Racial JusticeAct and their editorial support of both of these.In accepting the award, Vanessa Gallman said,"It’s very rare to be actually praised foranything.. .what makes this so heartwarming isthat it shows for one time we were really on theside of the good guys."

Senator Gerald Neal

A Public Advocate’s award was given to SenatorGerald Neal of Louisville for his tireless.

Ernie Lewis presenting the Pubik Advocate Awardto Representative Kathy Stein

courageous and skillful leadership on passage ofthe historic Kentucky Racial Justice Act, thefirst ever in the nation, and his value centeredwork in the General Assembly.

"I wanted to come here tonight and acknowledgeyou and let you know how much I respect whatyou do. I hold you up in high esteem. The onlyreason this RJA happened is because of thecoalition of people, many of whom I do notknow who stepped up to support all the strategicefforts that we needed in a comprehensive andjudicious way and I accept this award on theirbehalf."

Representative Jesse Crenshaw

Representative Jesse Crenshaw of Lexingtonwas awarded a Public Advocate’s award forshepherding the Racial Justice Act through theHouse of Representatives and his support of theDepartment’s need for increased funds.Representative Crenshaw thanked the hundredsof people who helped mobilize legislators tovote for the Racial Justice Act, and asked thatwe mobilize to achieve the things KBAPresident Clay spoke on.

Gideon

The Gideon Award was presented to Edward C.Monahan, Deputy Public Advocate. Establishedin 1993, the Gideon award is presented to theperson who has demonstrated extraordinarycommitment to equal justice and who has

Ernie Lewis presenting the Puhlk Advocate Awardto Representative Harry Moberly


courageously advanced the right to counsel forthe poor in Kentucky. Ed observed how we allneed each other in this work and how muchspirit we all bring to this important work.

Representative Harry Moberly

A Public Advocate’s award was bestowed onRepresentative Harry Moberly of Richmond forhis special assistance to DPA in obtainingsignificant funding for Kentucky’s urban andrural offices, especially for juvenile representation need. Representative Moberly said he wasvery proud to have the state public advocatefrom his legislative district. He talked of hisdays of representing indigent criminaldefendants and his clear appreciation for theimportant, essential role we play in the criminaljustice system.

Representative Kathy Stein

Representative Kathy Stein of Lexington wasawarded a Public Advocate’s award forsponsoring FIB 337 for DPA and her work onbehalf of indigent criminal defendant sin theHouse Judiciary Committee and on the floor.She said, it was a privilege to work as aLexington public defender and to represent theunder-served in the General Assembly workingto make the playing field level.

Senator Ernesto Scorsone

A Public Advocate’s award was given to SenatorErnesto Scorsone of Lexington for his leadership

Ed Monahan presenting the Public Advocate Awardto Jane Chiles, Kentucky Catholic Conference

on criminal justice issues as chair of the SenateJudiciary Committee on the Governor’s CrimeBill and HB 337. Senator Scorsone observedwhat a super job defenders did and what anexcellent advocate Ernie Lewis is and how hehas an incredible ability to really representDPA’s interests in the legislature. He talked ofhis experience as a public defender in 1976. Hethanked defenders for what we do for the justicesystem and observed how essential our work is.

Jane Chiles

Jane Chiles, the executive director of theKentucky Catholic Conference, which is thepublic policy arm of the Catholic Bishops,received a Public Advocate’s award for herspecial advocacy for passage of the RacialJustice Act and for the interests of indigents inthe Crime Bill and on funding for DPA. Ms.Chiles talked of how the justice system is achain and is only as strong as the weakest link.She said it would be a disgrace if the Church didnot take an active part in influencing legislationwhich shapes the justice system. "We are thevoice for the voiceless."

Juvenile Post-Dispositional

Tim Arnold, Barbara Bingham, Lisa Clare, KimCrone, and Donna Southard were speciallyhonored for their remaining with the JuvenilePost-Dispositional Branch despite the problematic nature of the funding for that workunit.*

Juvenile Post-Dispositional Unit Recipients:left to right Kim Crone, Lisa Clare, Tim Arnold,

Donna Southard, Barbara Bingham

.


RETROACTIVITY AND THE 1997CHANGESTO THE LAWS AFFECTING JUVENILES

On July 15, 1997 a drastic change in the lawconcerning admissibility of juvenile adjudications took place. KRS 532.025 1 a wasamended to provide that "subject to the Kentucky rules of evidence" juvenile adjudicationsof guilt of offenses which would have been felonies if committed by adults are admissible at thepenalty phase of a capital trial. Additionally,juvenile court records made available to the defense "may be used for impeachment purposesduring a criminal trial and may be used duringthe sentencing phase of a criminal trial" with theexception that juvenile adjudications may not beused to find the child guilty of a persistent felony offender charge. KRS 532.055, the "truth insentencing statute," now permits the Commonwealth to offer during the TIS hearing "juvenilecourt records of adjudications of guilt of a childfor an offense that would be a felony if’ committed by an adult." Language comparable to thatin 532.025 concerning admissibility of juvenilerecords for impeachment purposes is also included. See KRS 532.055 2 a 6.

There is a very strong claim that application ofthis statute to adjudications which took placeprior to 7/15/97 constitutes an ex post facto application of the law. KRS 635.040, which is stillin effect, provides that "no adjudication by ajuvenile session of district court shall be deemeda conviction, nor shall such adjudication operateto impose any of the civil disabilities ordinarilyresultingfrom criminal conviction, nor shall anychild be found guilty or be deemed a criminal byreason of such adjudication." At a juvenile adjudication, the guilt of the child is ordinarily determined either through a trial before the judgeat which witnesses testify or by an admission bythe child. Certainly, prior to 7/15/97., it is highlyunlikely that a judge would have advised ajuvenile who was admitting guilt that his admissionmight result in later serious consequences inadult court. A juvenile who has admitted guilt in

juvenile court at a time when these negativeconsequences with respect to circuit court flowing from that admission did not exist has astrong claim that his admission may not properlybe used against him either for impeachment purposes or for purposes of enhancing his sentence.

KRS 446.0803 provides that "no statute shallbe construed to be retroactive, unless expresslyso declared." An argument can be made that allowing admission of juvenile adjudicationswhich took place prior to 7/15/97 would constitute retroactive application of the law since newand unforeseen consequences would attach tothe adjudications. The amendments to 532.025and 532.055 were not declared to be retroactiveand thus must be assumed to be prospective. Thequestion which arises is the meaning of "prospective" in this context. Does "prospective"mean that juvenile adjudications are admissibleat any trial which takes place after 7/I 5/97whenever the adjudications occurred? Or does itmean that juvenile adjudications are admissibleat trials which take place after 7/15/97 only ifthe adjudications occurred after 7/15/97?

"[T]he rule against the retroactive application ofstatutes should be strictly construed." Peach v.21 Brands Distillery, Ky. App., 580 S.W. 2d 2351979. Sections 2 and I I of the Kentucky Constitution as well as Art. I, Section 10 of theUnited States Constitution are applicable. "TheEx Post Facto clause flatly prohibits retroactiveapplication of penal legislation." Landgrqf v.US! Film Product.c, 511 U.S. 244, 269 1994.In determining whether a statute operates retroactively "the court must ask whether the newprovision attaches new legal consequences toevents completed before its enactment." Id.That is certainly the case with the amendmentsto 532.025 and 532.055 since admission of juvenile adjudications in circuit court is a new legal consequence attached to adjudications com


pleted before 7/15/97. See also Thompson v.Utah, 170 U.S. 343, 351 1898 which teachesthat a statute comes within the constitutionalprohibition of ex post facto laws when "by itsnecessary operation and in its relation to the offense, or its consequences, [the statute] alters thesituation of the accused to his disadvantage."

There are many other possible grounds for challenging the admissibility of juvenile adjudications in circuit court, such as denial of the rightto counsel and/or failure to comply with the requirements of Boykin v. Alabama, 395 U.S. 2381969. However, the threshold question iswhether the amended statute is being appliedretroactively.

Gail Robinson, ManagerJuvenile Post-Dispositional UnitDept. of Public Advocacy100 Fair Oaks Lane, Suite 302Fran kfort, Kentucky 40601Tel: 502 564-8006, #220; Fax: 520 564-7890E-mail: grobinsonmail.pa.state.ky.us*

Looking at the Lawyer’s Rolein Racial Injustice

The Kentucky Bar Association’s newpresident, Richard Clay, told a recentmeeting of public advocates that one of hispriorities would be a focus on racial discrimination in the justice system and in thelaw profession.

Clay. a Louisville civilthe profession for notnorities nor cultivatingamong minority students.

lawyer, criticizedhiring enough miinterest in the law

Of the 12,500 member of the state bar, heestimated about 200 are black. JeffersonCounty has one black public defender;Fayette County has none.

It was a good speech, which pointed out arange of problems that Clay said would beaddressed in a 1999 conference sponsoredby the bar and the Kentucky SupremeCourt.

Good Lawyers

"There are not enough good lawyers; not enoughcompetent lawyers; not enough caring lawyers,not enough lawyers willing to devote themselvesfully to their clients. There are not enoughprosecutors and District Attorneys who understand their power and use it fairly and wisely.There are not enough judges willing to beguided only by principles of fairness - unaffected by political expediency."

- Brendan V. Sullivan, Jr.

It is encouraging to hear that legal mindswill consider tackling even some part ofsuch a big problem. We hope somethingconstructive will come of it.

Even Clay warned that unless there is realcommitment from the lawyers, the effortcould fit in a category with many otherconferences: "wonderful talk, marvelousstudies, but precious little, if any, action."

Lexington Herald-Leader June 27. 1998

RJA HELP

The new Kentucky Racial Justice Act which prohibits seeking a death sentence on thebasis of race became effective July IS, 1998. If you have a capital case and would like toconsult with capital litigators on this issue in your case, contact one of the following people to schedule a case consultation:

GeorgeSornberger 502 564-8006, ext. 230Margaret Case502 564-3948

Vince Aprile 502 564-8006,ext. 107

The Advocate,Vol. 20, No. 5 September 199$

PROFILES IN EXCELLENCE &PROFESSIONALISM

The DPA Workgroup on Profe.ssionaltvm &Excellence P & E idenhifled the many aspectsof professionalism and excellence in the work ofDPA. This is the first in a series of profiles ofthose at DPA who exhibit P & E day in and dayout.

Carrying a bulging trash bag, he had nevertheless managed to push the button for the elevator when I walked up. He just smiled when Iasked if everybody hauled the garbage out asthey left for the weekend. I knew he got the"cheap" joke. Riding down, I shared that I wasfrom Georgetown and he said that he workedwith juveniles. I held the outside door as heswung the load up to his shoulder, and westepped together into one of those early Marchafter-noons that makes us forget a Kentuckywinter as quickly as a new mother forgetschildbirth. I complained that it was after 5:00p.m. and no-body should be working this late onsuch a fine day.

Actually I had enjoyed the effort of theafternoon as the workgroup wrestled to defineprofessionalism and excellence. We had determined that such a culture would exist whenevery member of the organization is prepared

and knowledgeable, when they are respectfuland trustworthy, when they are supportive andcollaborative. All of this was still pretty much inthe abstract, and we hadn’t yet determined howDPA could get there.

We turned in the same approximate direction inthe parking lot so I slowed to keep pace. Heasked if Highway 460 around Georgetown wasopen yet. Finally curiosity got the better of me,and I asked him just what he was carrying off.He sort of quietly admitted that hew as taking abid in a detention center his stuff "Sometimesthere is just so little we can do. It’s hard toremember how important having personalbelongings is to a young person who has lost allcontrol over his life. This may be the only shredof dignity he has."

Tom Collins defined professionalism andexcellence in a very concrete way for me thatafternoon. He affirmed that the essence of ourwork in quality really is about the human spirit.

Alma Hall, Ph.D.Professor, Georgetown College

Alma Hall led the efforts of/he DPA Workgroupon Professionalism & Excellence.

The essence of our work in quality is about the humanspirit.

- W. Edwards Deming

Tom Collins

The Juvenile Branch of DPA was created in 1996 as the result of a consent decree betweenjuveniles in the Commonwealth’s residential treatment centers and the Commonwealth toprovide representation to juveniles committed to the Department of Juvenile Justice DJJ aspublic or youthful offenders. These juveniles were being denied access to the courts by theCommonwealth’s failure to provide counsel for them while they were committed to theCommonwealth. With the consent degree, the Commonwealth agreed to provide a system oflegal services, including routine face to face contact with attorneys, at each of the 12residential treatment facilities operated by DJJ. The Juvenile Branch represents the confinedyouth on fact, duration and conditions of confinement issues arising from federal statutory orconstitutional rights.


REDEFINING THE MISSION

IN THEPOST-CONVICTION BRANCH

Beginning July I, 1998, the Department of Public Advocacy Post-Conviction Branch redirectedits efforts towards a newly defined mission.Court-appointed RCr 11.42 and court-appointedCR 60.02 cases have become the responsibilityof the DPA Post-Conviction Branch. Any remaining Post Conviction Branch resources shallbe devoted to continuing the branch’s role inhelping Corrections fulfill its obligation to provide "access to the courts" to incarcerated adultfelons.

To accomplish this mission, the state has beendivided into three regions. The western regionwill be covered by Hank Eddy, Gordon Rahnand a soon to be hired attorney located in theDPA Eddyville office. The eastern region willbe covered by Tim Riddell, Linda West and JoeMyers located in the Frankfort office. The central region shall be covered by Marguerite Thomas, Post-Conviction Branch Manager, Ed Gafford and Brian Ruff, from the LaGrange Post-Conviction office. Contracts with private counsel will be used as needed.

When private defense attorneys do representDPA post-conviction clients, DPA in-house staffwill serve as resources to the contractors. Thisassistance could encompass obtaining records,interviewing witnesses, assisting in accessingclients, or being available for case review.

Under the DPA Post-Conviction Branch Planeach of the 9 post-conviction attorneys willspend a portion of their time on the court-appointed cases. Remaining attorney time willbe dedicated to direct representation of post-conviction litigation that arises from prison-intake interviews, representing clients referredby of-counsel and in-house appellate staff andupgrading infonntion packets on those matterswherein DPA staff cannot provide direct representation.

All circuit court judges have been asked to sendcourt appointments to Marguerite Thomas, thePost-Conviction Manager in Frankfort.

The leadership of DPA has redefined the mission of the Post-Conviction Branch both to improve the quality of services that DPA providesin all court-appointed RCr 11.42 cases and reduce the caseload of an overburdened trial delivery system. To ensure quality representation, theDPA Post-Conviction Branch is committed tothe following:

I. Case review.

2. Personal contact with all RCr 11.42 clients.

2. Developing a system for obtaining clientfiles from trial lawyers.

4. Utilizing support staff to secure necessarycourt records and other records and relyingupon the assistance of the Trial Divisionwhere possible.

5. Establishing a case tracking system thatidentifies wins and losses.

6. Ensuring that post-conviction staff receivenecessary education such as the DPA FallLitigation Institute where litigation skills aretaught.

6. Assisting contractors with case review, obtaining records and accessing clients.

8. Maintaining communication with clerks toensure proper records are timely forwardedto DPA.

In addition to handling the court-appointed RCrII .42 and CR 60.02 cases, the Post-Conviction


Branch staff will be handling RCr 11.42 casesthat arise in a facility and are approved by thePost-Conviction Branch Manager, post-conviction staff will also provide attorneys forstate habeas cases, federal habeas, belated appeals, special parole revocation hearings andVitek hearings. In all other matters including instate detainers, sentence calculations, early parole requests, shock probation and institutionalissues, informational packets will be available atthe facilities. These packets have been developed by the Post-Conviction Branch staff to assist prisoners who must proceed pro se..

The Post-Conviction Branch still has the authority and responsibility for handling appropriateRCr 11.42 and CR 60.02 cases that have beenidentified through DPA paralegal interviewswith incarcerated persons. Many of the peopleincarcerated in our prisons cannot read or writeand many have mental illnesses that prohibitthem from helping themselves. Thus, withoutthe assistance of the Post-Conviction Branchstaff, many would not have the capacity to file apro xc action requesting the appointment ofcounsel. Additionally, several RCr 11.42 caseshave been investigated by the Post-ConvictionBranch staff throughout this past year. Pleadingsin these cases will be filed by post-convictionattorneys after July 1St.

To ensure the success of the Post-ConvictionBranch’s newly defined mission, it is criticalthat we have on-going communication betweenthe Trial Division and the Post-Trial Divisions,between the courts and DPA, and between theDepartment of Corrections and DPA. The Post-Trial Division and the Post-Conviction Branchhave received helpful advice from the Trial Division and from several circuit court judges.Post-conviction staff are in constant communication with the Department of Corrections toimprove our representation of clients. Dialogueon how best to provide representation to incarcerated persons has been helpful to clarifyingour mission. Should anyone have questions concerning DPA post-conviction cases, please contact Marguerite Thomas, Post-ConvictionBranch Manager, at 502 564-3948 or RebeccaDiLoreto, Post-Trial Division Director, at 502564-8006, #279.

Rebecca Ballard DiLoretoPost-Trial Division Director100 Fair Oaks Lane, Suite 302Frankfort, Kentucky 40601Tel: 502 564-8006, 279; Fax: 502 564-7890E-mail: [email protected]

Marguerite Neill ThomasPost-Conviction Branch Manager100 Fair Oaks Lane, Suite 301Frank fort, Kentucky 40601Tel: 502 564-3948; Fax: 502 564-3949E-mail: mthomas4jrnail .pa.state.ky.us*

HONESTJOHN- Ok. MR. SNWSON.

I WANT YOU TO .ItU. THE JCJPYF R?444W r

ISN’T ThAT


FULLTIME PUBLIC DEFENDER OFFICEOPENSIN BELL COUNTY

Frankfort, KY, August 18, 1998 - The Department of Public Advocacy DPA announced theconversion of the public advocacy program inBell County from part-time to fUll-time attorneys.The office will be headed up by Cotha VanDoren of Pineville, who has been serving as thepart-time contract public defender in Bell Countysince 1994. Cotha remarked, "I am delighted tobe a part of this leap into the 2l Century. BellCounty has long deserved an increase in thenumber of public defenders available for our citizens who cannot afford to hire an attorney.Thanks to the efforts of Ernie Lewis, MichaelBowling, and many other people my staff and Iwill have an opportunity to meet the prosecutionhead-on." The office is responsible for representing all poor people accused of a crime in BellCounty. In the last fiscal year July 1, 1996 -

June 30, 1997 the Bell County Public DefenderProgram represented 943 clients, 88 in circuitcourt and 834 in district court. Since July I, 1997,1360 clients 1,074 in district court, 150 juveniles, 136 in circuit court have been representedin circuit and district court. Bell County brings to52 the number of counties covered by fUll-timeDPA offices.

Public Advocate, Ernie Lewis, who has a goal ofproviding 85% of DPA’s clients with representation by full-time defenders, spoke about the importance of Bell County now being served by afill-time office, "I am excited about the openingof our 20th fUll-time office. This will significantlyimprove thefl delivery of services in Bell County,as well as move DPA toward our goal of providing full-time services in 85% of our trial levelcases."

Roger Gibbs, of London, Kentucky, Eastern Regional Manager for DPA, welcomed the newestfUll-time office. "We are excited about the futureof client service in Bell County. This is one of thebusiest dockets we have and this office will go along way towards meting the needs of the peoplein this area."

Middlesboro attorney, Michael Bowling, whochaired Kentucky’s House of Representatives’Judiciary Committee, commented on the openingof the Bell County Public Advocacy office, "1 amvery pleased that DPA chose Bell County to opena full-time office. It’s been badly needed. I lookforward to assisting them however I can."

BELL COUNTY BECOMES 52ND COUNTYCOVERED BY FULL-TIME DEFENDERS

N

Thc’Ad,’oeute, Vol. 20, No. 5September 1998

Department of Public Advocacy’s

TELEPHONE ATTENDANT MENU

The Frankfort Office of the Department of Public Advocacy has installed an automated phone attendantto direct calls made to the primary number, 502 564-8006. All callers to this number will be provided amenu from which to select the appropriate party or workgroup. To access the employee directory, callersmay press "9." During normal business hours callers may press "0" to speak with the receptionist.Callers may press an extension number at any time during the process, even upon hearing the message ofthe party you were attempting to reach. Simply press the extension number you wish and the call will betransferred. Listed below are extension numbers and names for the major sections of the Departmentlocated in Frankfort. Make note of the extension numbers you frequently call. Should you havequestions about this system or experience problems, please call Roy Collins or the Law OperationsDivision, ext. 136.

Appeals - Joyce Hudspeth #179

Capital Trials - Sauda Brown #135

ComputersAnn HarrisHarry Creamer

Contract Payments - Joy Brown #118

Deputy Public Advocate OfficeTina Meadows #236

Education - Tina Meadows #236

Fran kfort Trial Office - Kathy Collins502 564-7204 or #235

General Counsel OfficePeggy Redmon #107

Investigation - Lisa Fenner #279

Juvenile Post-Dispositional BranchDawn Pettit #220

Law Operations - Tammy Havens #136

Library -Will Hilyerd #120

Payroll - Cheree Goodrich #114

Personnel - Roy Collins #116

Post-Trial Division - Lisa Fenner #279

Properties - Larry Carey #21 8

Protection & Advocacy502 564-2967 or #276

Public Ady.ocate OfficeDebbie Garrison #108

Recruiting - Sarah Madden #117

Timesheets - Cheree Goodrich #114

Travel Vouchers - Joy Brown #118

Trial Division - Patsy Shryock #230*

#130#285

TheAdvocate, Vol. 20, No. 5September 1998

KIM ALLEN TO HEAD KENTUCKYCRIMINAL JUSTICE COUNCIL

Justice Cabinet Secretary Dan Cherry announcedon July IS, 1998 the appointment of Kim Allen,of Louisville, as the executive director of theKcntucky Criminal Justice Council.

The Council was established by Governor Patton’s criminal justice legislation, House Bill 455,which was passed by the 1998 Kentucky General Assembly.

"We are thrilled to have Kim in such an important position, and with her extensive backgroundin criminal justice planning, we are expectingmajor results," Cherry said. "As head of theCouncil, she will help ensure that the criminaljustice system is responding to crime as a systemand not on a piecemeal basis."

The council will be comprised of 28 membersfrom various sectors of the criminal justice system and all three branches of government. It willadvise the Governor and the Legislature oncriminal justice matters.

The council has been directed by HB 455 to review and make recommendations on the administration of justice, the rights of crime victims,sentencing issues and the penal code.

The council is to develop model programs, conduct comprehensive planning, disseminate information on crime issues and trends, make appropriate legislative recommendations, conductan in-depth assessment and study of criminalgangs and make recommendations thereon, andstudy the concept of involuntary civil commitment of sexual predators.

Allen has been on the staff of the Louisville/Jefferson County Crime Commission since1984 and served as Executive Director since1988. She ahs a master’s degree in justice administration from the University of Louisvilleand a master’s in clinical psychology from Spalding University. Allen presently serves as chairof the executive committee for the National Association of Criminal Justice Planners and wasappointed by Governor Patton to serve on theGovernor’s Council on Domestic Violence in1996.

The provisions of HB 455 that relate to theCriminal Justice Council are:

Section 1. KRS I SA.030 is amended to read asfollows:

The Justice Cabinet, in addition to the departments set forth in KRS l5A.020, shall consist ofthe following organizational units which arehereby created or reestablished:I Office of secretary ofjustice comprised ofthe secretary ofjustice, the Commission on Correction and Community Service, the KentuckyState Corrections Commission, and the Criminal

Justice Council.The Parole Board shall be attached to the Officeof the Secretary for administrative andsupportpurposes only.2 Offices of deputy secretaries ofjustice.3 Office of the general counsel.4 Medical examiner service program.

Section 2. KRS 15A.040 is amended to read asfollows:


I The CrimInal JusticeCounciftKentuckyCrimeCommicior shall advise and recom

mend to the Governor and the Genera! Assemk&frecretary] policies and direction for[departmental] long-range planning regarding all elements of the criminal justice system. The coun

cilshall review and make writtenrecommendationson subjects including but not limited to

administrationof the criminal justice system,therights of crime victims, sentencingissues,

capitallitigation, a comprehensive strategytoaddress gangsand gang problems, and the Pe

nalCode.Recommendations for these and allotherissues shall be submitted to the Governor

andthe Legislative Research Commission atleastsix 6months prior to every regular ses

sionof the Kentucky General Assembly. Thecouncil shall:

aMake recommendations to the justice secretary with respect to the award of

stateand federal grants and ensure thatthegrants are consistent with the priori

tiesadopted by the Governor, the GeneralAssembly,and the council;bConduct comprehensive planning

topromote the maximum benefits ofgrants;

cDevelop model criminal justiceprograms;

dDisseminate information on criminal justice issues and crime trends;

eWork with community leaderstoassessthe influence of gangs and the

problemsthat gangs cause forlocalcommunities,assist local communities in

mobilizingcommunity resources toaddresstheir problems, sponsormultidisci

plinarytraining to help communities focuson proven strategies to address gang

problems,and conduct an ongoing assessmentof gang problems in local com

munities;C Recommend any modjfications oflaw_necessary to insure that the lawsadequately address problems identified inlocal communities relating to gangs;

gProvide technical assistance to allcriminal justice agencies; and

h Review and evaluate proposed legislationaffecting criminal justice; and

iAll reports and proposedlegislationshall be presented to the Interim

JointCommittee on Judkiary not laterthanJuly 1of the year prior to thebe

ginningof each regular session oftheGeneralAssembly[ard hiIl exer&ceru

pen’iforyauthority with rnpect to fedniandctate grantu at required by federal or

btelay].

2 [Total]Membership of the Criminal JusticeCouncil shall consist of the following:

aThe secretaryof the Justice Cabinet or his designee;

b The director of the AdministrativeOffice of the Courts or his designee;

cThe Attorney General or his designee;

dTwo 2 membersof the HouseofRepresentativesas designated by the

Speaker of the House;eTwo 2 members of the Senate as

designatedby the President of the Senate;

CA crime victim, as defined in KRSChapter 346, to be selected and appointed

bythe Governor;g A victim advocate, as defined in

KRS421.5 70, to be selected and appointed by the Governor;

hA Kentucky college or universitytrofessorspecializing in criminology,

corrections,or a similar discipline to beselected and appointed by the Governor;

iThe public advocate or his designee;

jThe president of the KentuckySherj/fs Association;

kThe commissioner of state police orhis designee1 A person selected by the Kentucky

StateLodge of the Fraternal OrderofPolice;

‘miThe president of the KentuckyAssociation of Chiefs of Police

Page7!


nA member of the Prosecutors AdvisoryCouncil as chosen by the council;oThe Chief Justice or a justice or

judge designated by him;pOne I member of the Kentucky

Associationof Criminal DefenseLawyen,appointed by the president of the

organization;qOne 1 member of the Kentucky

Jailer’sAssociation appointed by thepresident of the organization;

rOne I member of the CircuitClerk’s Association;

sThree 3 criminal law professors,one each from the University of Kentucky

Collegeof Law, the Louis D.BrandeisSchool of Law at the University of Louis

ville,and the Salmon P. Chase College ofLawat Northern Kentucky University, tobeselected and appointed by the Gover

nor;tOne 1 District Court Judge, des

ignated by theChief Justice;iiOne I Circuit Court Judge, des

ignated by the Chief Justice;vOne 1 Court of Appeals Judge,

designated by the Chief Justice;wOne I representative from anor

ganizationdedicated to restorative principlesof justice involving victims, the

community,and offenders; andxOne I individual with ademon

strated commitment to youth advocacy, tobeselected and appointed by the Gover

nor[lcentuolcyCrime Commiriion and theappointmentof member thereto chall be

determinedand made by the Governor].

3 The secretaryof justice shall serve ex officio as chairman of the council[c’mr’icthn].

Eachmember of the council shall have one Ivote. Membersof the counci/[commiion] shallserve without compensation,but shall be reimbursedfor their expensesactually and necessarily incurredin the performanceof their duties.

4The council shall meet at least once everythree3months.

5 The council may hold additional meet-

a On the call of the chairman;bAt the request of the Governor to

the chairman; orcAt the written request of themem

bersto the chairman, signed by amajority of the members.

6Two-thirds 2/3 members of the councilshallconstitute a quorum for the conduct of

businessat a meeting.7 Failure of any member to attend two2

meetingswithin a six 6month period shall bedeemeda resignation from the council and a

newmember shall be named by the appointingauthority.

8The council is authorized to establishcommitteesand appoint additional persons who

maynot be members of the council asnecessaryto effectuate its purposes, including but

not limited to:

aJnform Criminal JusticeInformation System committee;

bCommittee on sentencing; andcPenal Code committee.

9The council’s administrative functionsshallbe performed by a full-time executive di

rectorappointed by the secretary of the JusticeCabinetand supported by the administrative,

clerical,and otherstaff as allowed bybudgetarylimitations and as needed to fulfill the

council’srole and mission and to coordinate itsactivities.

Section3. A New Section Of Krs Chapter17 IsCreated To Read As Follows:

1There is hereby established theKentuckyUnjfledCriminal Justice Information System,

referred to in this chapter as the "system." Thesystemshall be a joint effort of the criminal

justiceagencies and the courts. Notwithstandingany statutes, administrative regulations,

andpolicies to the contrary,f standards andtechnologiesother than those set out in KRS

61.940to 61.953 are required, the Commonwealth’schief information officer shall review,ings:

Page72

TheAds’ocute, Vol. 20, No. 5 September 1998

expedite,and grant appropriate exemptionstoeffectuatethe purposes of the ugffied criminal

justice infition shall

rmatwn system.be construed to

Nothing in this sechamper any public

officer or official, agency, or organization qfstateor local go vernment from furnishingin

formationor data that they are required orrequestedto furnish and which they areallowed

to procure by law, to theGeneral Assembly, theLegislative Researchmittee of either. For

Commission,the purposes

or a comof this sec

tion, "criminal justice agencies" include allqçprtinents of the Justice Cabinet, the UnifiedProsecutorial System, Commonwealth’s attorneys, county attorneys, the TransportationCabinet. the Cabinet for Human Resources,and any agency with the authority to issue acitation or make an arrest2 The program to design, implement, andmaintain the system shall be under the supervi

sionof the uniform criminal justke information system committee of the CrimiCouncil. The membership of this

nal Justicecommittee

shallbe determined by the council, upon therecommendationof the Governor’s chief in

formationofficer, who shall chair the committee.

3The committee shall be responsible forrecommendingstandards, policies, and other

mattersto the secretary of justice for promulgationof administrative regulations in accor

dancewith KRS Chapter 13A to implement thepolicies, standards, and other matters relatingto the system and its operation.

recommen4 The committee shall submitdationsto the Criminal Justice Council and the

secretaryof justice for administrative regulationsto implement the untform policy required

to operate the system. The com mittee shaIl implement the unjform policy.

include a sys5 The unjform policy shalltern to enable the criminal justice agencies andthe courts to share data stored in each other’sinform ation systems. Initially, the uniformpolichall maximize the use existing data-bases and platforms through the use of a virtual database created by network linking ofexisting databases and platforms among the

variousdepartments. The unjform policyshall

also develop plans for the new opensystemplatformsbefore theexisting platforms become

obsolete.‘6,The committee shall be responsible for

recommeand the

nding to the Criminal Justice Councilsecretary of justice any necessary

changes in administrative regulations necessaryto Implement the system. The committee

shallalso recommend to the CriminalJusticeCouncil,theChief Justice, and the secretary of

justicerecommendations for statutory additionsorchanges necessary to implement and main

tainthe system. The secretary shall be responsiblefor reporting approved statutory recoin

mendationsto the Governor, the Chief Justice,theLegislative Research Commission, and ap

propriatecommittees of the General Assembly.7, The chair of the committee shall reportannually to the Criminal Justice Council onthe status of the system.8 All criminal justice agencies shall followthe policies established by administrativeregulation for the exchange of data and con-

nectionto the system.9The committee shall review how changes

toexisting criminal justice agency applicationsimpact the new integrated network. Changestocriminal justice agency applications thathave

animpact on the integrated network shall becoordinatedthrough and approved by the

committee.10Any future state-funded expendituresby

acriminal justice agency for computer platformsin support of criminal justiceapplica

tions shall be reviewed by thecommittee.11Any criminal justice agency or officer

thatdoesnot participate in the criminal justiceinformationsystem may be denied access to

state andfederalgrantfunds.U

The weak can never forgive. Forgivenessis the attribute of thestrong.

- Mahatma Gandhi

Page73


WHEN IT CAN’T WAIT FOR APPEAL:WHAT To Do IN AN EMERGENCY

[This is the first of three parts of this articledealing wit/i ways to obtain immediate review byanother court of injurious actions taken by thejudge in the case that is being prosecuted. ThLvfirst installment lists the types of reliefavailableand examines the jurLvdiction of the variouscourts to grant relief The next article will dealwith the mechanics and practical aspects ofseeking relief pursuant to CR 8/ or CR 76.36actions commonly called writs of prohibition ormandamus. These are the most often soughtforms of relief and merit separate discussion.The third installment of this article will dealwith the remaining forms of relief and will conclude with an appendix of important originalaction cases for future reference.]

The Court of Justice is charged by Sections 2, 14and 115 of the Constitution to provide effectiveappellate review of all actions of its judicial officers. In almost all cases the Supreme Courtdeems appeal after the entry of final judgmentadequate to discharge this duty. [Graham v.Mills, Ky., 694 S.W.2d698, 699-7001985]. Infact, the key requirement to establish jurisdictionfor original actions brought under CR 81 or CR76.36 is the inadequacy of appeal as a sufficientremedy. [Adventist Health Systems v. Trude,Ky.. 880 S.W.2d 539 1994]. There are practical and theoretical reasons underlying this rule.

The best practical reason was given by the lateJustice Leibson during the course of an oral argument when he said that a court should not intervene before final judgment because the problem might go away on its own or be renderedmoot by later actions. In more concrete terms,this means that the defendant might be acquittedor convicted of a less serious charge that wouldobviate an appeal after judgment. The defendantmight plead guilty under RCr 8.08 or 8.09. Laterdevelopments might show that the judge’s rulingwasn’t so wrong after all, a less legitimate reason, and a rarely stated one, is that the trialmight produce overwhelming evidence of guilt

such that an error that might seem grave in isolation before trial would be rendered harmlessand disposable under RCr 9.24 afterward.

The theoretical reason is that the "higher" courtsof the Court of Justice should not micro-managethe proceedings of "inferior" courts. Each trialcourt has a grant of original jurisdiction underthe Constitution. [Sections 1125; 1136]. Thepeople of the judicial district, by voting for thejudge, have expressed faith in the judge’s ability.As an elected officer, each judge necessarily hasa grant of constitutional authority which shouldbe exercised independently.

The theoretical and practical premises of theappeal after final judgment policy dovetailnicely with the circumstances in which the Courtof Justice finds itself these days. The latest information I have shows that the Supreme Courtdealt with over 1000 cases last year while theCourt of Appeals received 3300 new filings.Spread among 7 and 14 judges respectively, thisis quite a heavy load. In Jefferson County. andprobably in other circuits, each circuit judge averages 600 to 800 open cases at a time. Obviously, any policy that might make an appellateaction go away is bound to seem right to courtsoperating under these conditions.

Please do not misunderstand what I am saying.The appeal from final judgment rule has beenthe law from time out of mind. It will be appliedin almost all cases because it is the law and it isthe custom handed down to the current crop ofjudicial officers in Kentucky. But these othercircumstances are background information thatyou need to know and understand when you tryto buck the established order of proceedings byan original action of some kind. Inertia will favor application of the wait-and-hope-it-goes-away approach. But, if you also understand thereasons that justify an original action and pickthe cases in which you file original actionswisely, you can get relief for your client. As a

C


by-product you will demonstrate to the judgewho did you wrong that you don’t mind taking abad ruling up and that you can get somethingdone about it.

There are some fundamental points that shouldbe taken care of at the start. The first of thesepoints is that there is no such thing as a writ ofprohibition or a writ of mandamusin Kentucky.You will read cases decided as recently as 4997that speak about writs of prohibition or mandamus. However, in July 1953 the authority of thecircuit court to grant these specific remedies wasabolished by the repeal of the old Civil Code andthe adoption of CR SI. The right of the oldCourt of Appeals "to issue such writs as may benecessary to give it general control of inferiorjurisdictions was repealed as of January 1, 4976and replaced by current Sections 109 andI lO2a of the Constitution which create theCourt of Justice as a "unified judicial system foroperation and administration" under the supervision of the Supreme Court which "shall have thepower to issue all writs ... as may be required toexercise control of the Court of Justice."

Under the Judicial Article of the Constitution,neither the Circuit Court nor the Court of Appeals has inherent original jurisdiction to entertain actions which seek to govern the rulings ofinferior courts. The Court of Appeals is limitedby Section 1112 of the Constitution to issuanceof writs only to "aid its appellate jurisdiction."The Circuit Court has original jurisdiction onlyover those matters "not vested in some othercourt." [Section 1125. Supervisory jurisdiction, which is what we are talking about here, islodged exclusively in the Supreme Court bySections 109 and I l02a.

CR 81 and CR 76.36 cannot be construed to givejurisdiction to any court. They are proceduralrules that tell litigants how to proceed when anoriginal action is authorized. They cannot be"construed to extend or limit the jurisdiction ofany court of this Commonwealth ...". [CR 82J.

Thus, the first and ostensibly the only basis forthe Court of Appeals or the Circuit Court to entertain original actions of this type is by delegation from the Supreme Court. This is accom

pushed by SCR 1.0303 and 1.0406. Theserules authorize "proceedings in the nature ofmandamus or prohibition" against a circuit ordistrict judge respectively.

Jurisdiction to entertain an original actionbrought pursuant to CR 81 or CR 76.36 is delegated by the Supreme Court to the Court of Appeals or to the Circuit Court. The power delegated is the power to exercise control over theCourt of Justice. Thus, it is not necessary toworry too much about the type of relief you askfor when filing an original action. The SupremeCourt has the authority under the Constitution toreview and correct any action by any judicialofficer anywhere in the Commonwealth ofKentucky. If properly brought to the attention ofthe Supreme Court, the actions of a trial commissioner or of the Chief Justice may be corrected by original action either in the SupremeCourt or, by delegation, in the Court of Appealsor the-Circuit Court. This has been recognizedby the Supreme Court in two fairly recent cases,Abarnathy v. Nicholson, Ky., 899 S.W.2d 851995 and Kuprion v. Fitzgerald, Ky., 885S.W.2d6791994.

In theory, then, anything that a judge does thatharms your client in a way that cannot be corrected on appeal is subject to an original actionof one kind or the other. The principle of judgment in such cases is whether the actions violatean already known policy of the Court of Justiceor a policy that should be established. Basically,the argument is that the Supreme Court, simplyas a matter of policy, decided that somethingshould or should not be done. As we will discussin later sections of this article, the SupremeCourt delegates authority through various individuals and bodies, including chief judges andlocal rule- making authority. But for right now,it is sufficient to know that the main source ofjurisdiction for original actions is the SupremeCourt’s supervisory authority which amounts towhat a majority of the Supreme Court thinks isthe right way to run a court system.

Although the Judicial Article of the Constitutiondoes not give the Court of Appeals or CircuitCourt inherent authority to govern the actions oflower court judges, there is an alternative line of


authority for review growing out of Sections 2and 14 of the Bill of Rights. This has beencalled, in other circumstances, the right of inherent review. This right grows out of Section 2,which is unique among state constitutions. [Reisv. C’amphell County Board qf Education, Ky.,938 S.W.2d 880, 887 1996]. Section 2 prohibits arbitrary conduct by any agent of government. This necessarily includes judges. In Kenlucky Milk Marketing ‘ominission v. Kroger,Ky., 691 S.W.2d 893 1985 the Supreme Courtstated this principle: "If the action taken restsupon reasons so unsubstantial or the consequences are so unjust as to work a hardship, judicial power may be interposed to protect therights of persons adversely affected." Obviously,this means interposition at a time when it will dosome good. This conclusion is strengthened bySection 14 of the Constitution which requires theCourt of Justice to provide prompt, effectiveremedies for legal injuries. The Court of Justiceis bound by Sections 2 and 14 of the Constitution to provide some form of relief before theinjury occurs or becomes irreparable. Together,these provisions create a right of the individualto seek relief, and, a corresponding jurisdictionto grant relief. The relief available under eitherapproach is not limited to what formerly werecalled "writs of prohibition or mandamus".

You might observe that there is no great need toworry about what I call "jurisdiction from necessity" in light of the wide ranging supervisoryjurisdiction that was discussed above. You rarelywill have to deal with it in an ordinary originalaction. But it is important when time constraints,which are both the prime reason that you canseek intermediate relief stay orders and thechief impediment to getting it, are workingagainst you because you cannot get to the judgenext higher in the table of organization. Sections2 and 14 allow you to jump that level or go to adifferent judge on the same level because theCourt of Justice must always be open for business and must afford a timely opportunity toseek relief.

It is impossible to deal with the practice oforiginal actions without understanding the thirdtype of jurisdiction which arises from the organization of the Court of Justice for purposes of

administration and operation. The Judicial Article adopted in 1976 took away from the GeneralAssembly the power to regulate local practice bymeans of statute and in its stead established asystem of local and regional judges throughwhich the Supreme Court could manage theCourt of Justice. If you look in the front of anyrecent Kentucky Decisions book you will see inthe list of circuit court judges a designation ofchief regional judge after some names. The regional administration program was establishedpursuant to Sections 1 lO5b and 1124 of theConstitution. The chief regional judge is responsible primarily for personnel matters. However,the regional program delegates to the chief regional judge the "judicial assignment authority"given to the Chief Justice by Section 1 l05bof the Constitution. This is authority to assignany judge temporarily to any court other than theSupreme Court. The only requirement for exercise of the authority is the chief regional judge’sbelief that "such assignment [is] necessary forprompt disposition of causes." Thus, if you arehaving trouble with the local circuit or districtjudge, it may be possible to apply to the chiefregional judge to have your case reassigned. Theauthority to do so is there, and it is availablesimply upon a request to the judge. It may be analternative to a traditional original action.

In addition to the regional judge plan, each localunit, district or circuit, has a chief judge who isthe Supreme Court’s agent in the district. Section1124 and Section 1133 and 4 of the Constitution establish the position of chief judgewho "shall exercise such authority and performsuch duties in the administration of his district asmay be prescribed by the Supreme Court." SCR1.0403 sets out the general duties of a chiefjudge and allows some supervision of the actionsof other judges in that particular circuit or district. In cases where you might be justified inseeking relief because a judge is violating localrules or because the matter falls under theauthority of the chief judge, you again simplyapply to the chief judge for relief. Typically actions involving the chief regional or local judgewill deal with local policies that may conflictwith general policies set out in Supreme Courtrules or operating procedures. [e.g. Brutk’y v.Commonwealth, Ky., 967 S.W.2d 20 1998].


rules or operating procedures. [e.g. Bn,tle;’ t’.

.To,wno,ns’ealth. Ky.. 967 S.W.2d 20 1998].Cases involving such administrative matters donot come up that often. But you should keep inmind that there is an alternate "administrative"jurisdiction that does not necessarily involvefiling a legal action to seek relief for your client.

The relief available under the general heading of"original action" falls into 6 general categories.The first I call straight original actions, whichare the typical "writs" which everyone speaksabout. However, there are also administrativeoriginal actions that can be taken to either thechiefjudge. or, in certain circumstances, directlyto the Supreme Court. There are also statutoryactions available. Habeas Corpus under KRSChapter 419 is available when the client is entitled to immediate release for some reason orother. Under certain circumstances, a declaratoryjudgment may be sought under KRS Chapter418. For certain cases, it is possible to apply tothe chief regional or local judge for relief. Incases where a circuit court client has been givenan unreasonable bond, it is possible to accomplish the same result as an original action byprosecuting an RCr 4.43 appeal and seeking intermediate relief under CR 76.33 in the Court of

CAPITAL CASE REVIEW- JULIA PEARSON

KENTUCKY SUPREME COURT

Sanborn v. Commonwealth,- S.W.2d- decidedJune 18, 1998

Majority: Wintersheimer writing, Stephens,Lambert,Johnstone, Graves, Cooper,Stumbo

After Parramore Sanbom’s convictions and resentence to death were affirmed in 1994, he filed amotion pursuant to RCr 11.42 in the Jefferson

Appeals. The approach you take depends on thecase and on the venue where you believe you’remost likely to accomplish the result you have inmind.

Of the installments of this article I consider thisone the most important. It is easy enough toshow someone how to file an original action. Itis much more difficult to explain why and wherean action should be filed if a lawyer does nothave a good grasp of the sources of jurisdictionand what the Supreme Court wants done in itscourt system. The bottom tine still is that appealafter final judgment is the preferred remedy. It isonly when the litigant can demonstrate an irreparable harm that the "orderly progression" of litigation should be upset. In the next section, wewill examine more closely the jurisdictional requirements and begin examination of typicalscenarios in which the orderly progression oflitigation must-be upset.

David NiehausJefferson District Public Defender’s Office200 Civic PlazaLouisville, Kentucky 40202Tel: 502 574-3800; Fax: 502 S74-4052R

Circuit Court. That motion wastober, 1996.

Prejudgment of IAC Claim

After the trial, the court both praised and criticizedthe Department of Public Advocacy counsel whohad represented Sanborn. During post-conviction,defense counsel sought to disquaIi the specialjudge who sat because of those statements. Themajority found no error, saying that the statementswere inconsistent and did not indicate prejudg

overruled in Oc


ment. The trial court had said that it would hearall the evidence before it made a final judgment.

There was also no error in denial of the motion torecuse the judge. He was applying the legal standards of Strickland t Washington, 466 U.S. 6681984, to the case before him.

Meaningful Preparation andPresentation of Issues

Defense counsel had adequate time to prepare theRCr 11.42 motion. Sanborn’s conviction was affirmed on October 27, 1994; nearly a year later,the United States Supreme Court denied certiorari.On January 3, 1996, 122 days after denial of cert.,Governor Patton signed a death warrant authorizing Sanborn’s execution on February I, 1996.Sanborn’s RCr 11.42 motion was filed on March26, 1996, and the evidentiary hearing was held onAugust 12 and 13 of that year. Thus, Sanborn hadmore than ten months to file motions in preparation for the hearing.

Furthermore, counsel could not with specificityidentify witnesses, evidence or claims whichwould have been presented had a postponement ofthe hearing been granted. Sanhorn, slip opinion at5, citing RCr 9.04.

Sanbom’s argument that he was not providedfunding before filing his motion was meritless.Circuit courts do not have jurisdiction regarding"pre-RCr 11.42 motions." Id., at 5. citing Bowlingv. C’ommonwealth, 926 S.W.2d 667 Ky. 1996.

There is no authority for using ccr pane motionsfor funding in post-conviction cases. Ake v. Oklahoma, 470 U.S. 68 1985, was a trial case whichdealt with the right to a psychiatric examination.RCr 7.24 relates to pretrial discovery, not to discovery in post-conviction actions.

The purpose of RCr 11.42 motions is to provide aforum for known grievances, not for a fishing expedition for grievances. Id., citing Gil/lam i

‘ommonwealth, 652 S.W.2d 856 Ky. 1983.

Government Misconduct

All of the matters contained in this section of San-born’s 11.42 were known to defense counsel priorto or at the time of retrial and should have beenraised on direct appeal. The audiotapes of witnessinterviews which the first prosecutor claimed hehad destroyed were found and available to defensecounsel at retrial. The jury was told that organicmaterial found on the victim’s body had not beenpreserved. Moreover, the jury heard testimonyabout the significance of that material and aboutSanborn’s inconsistent stories.

There was no evidence that the police were continuing their investigation; the allegation that thepolice failed to disclose that infoniiation wasmeritless.

Arguments regarding jury misconduct were conclusionary. Sanborn’s allegation about jurors discussing the case lacked specificity and indicationsof where, when and among whom such discussions occurred. Id., at 9. Likewise, his allegationthat a juror was sleeping did not contain the specific facts necessary to support the claim as required under RCr 11.422.

Ineffective Assistance Of Counsel

When reviewing an ineffective assistance of counsel claim, the court must examine the totality ofthe evidence before the judge and jury and assesstrial counsel’s overall performance in order to rebut the presumption that trial counsel was effective. The movant must also show that there is areasonable probability that but for counsel’s errors,the outcome of the trial would have been different.Id., citing Strickland, supra.

The physical and circumstantial evidence pointingto Sanborn’s guilt was overwhelming.

Sanborn’s claim that counsel failed to use defenseexperts was not specific. His allegation that oneof his defense counsel had a conflict of interestbecause she took the prosecution’s voir dire notes


was rejected on direct appeal. The complaint thatSanborn had a poor relationship with his trialcounsel should have been raised on direct appeal.

Counsel’s limited concessions of Sanborn’s guilt inorder to argue for lesser-included offenses wasreasonable trial strategy. Id., at II.

The record refuted the allegation that defensecounsel failed to prepare for the introduction ofevidence of extreme emotional disturbance.Counsel had Mr. Sanborn evaluated, and obtaineda court order requiring the expert’s presence at theCommonwealth’s evaluation.

The claim that defense counsel was ineffective byconceding that the expert’s opinion concerning thetriggering event was based solely on his conversations with Sanborn and was unsupported byother evidence was meritless. The expert testifiedthat he found nothing to support Mr. Sanborn’sstatements. Moreover, the trial court found thatthe expert had great experience from many criminal cases.

Trial counsel’s testimony at the RCr 11.42 hearingrefuted the allegation that he had not prepared Mr.Sanbom for the prosecution expert’s evaluation.Trial counsel testified that he discussed the doetor’s testimony, that he had a copy of the report,and that he had discussed the defense with Mr.Sanborn before the doctor examined him.

Barclay Brown

Prior to the first trial, defense counsel had enlistedRev. Barclay Brown as a possible mitigation witness. Brown testified for the prosecution at thesecond trial, a fact which the trial judge noted inhis decision to agree with the jury’s death sentence. During post-conviction, counsel arguedthat first trial counsel were ineffective for not anticipating that Brown’s discussions with Mr. San-born would be ruled unprivileged. "Failure toanticipate correctly a future ruling of the courtdoes not present an ineffective assistance claim."Id.,at 14.

Tammev. Commonwealth,- S.W.2d - decidedMarch 19, 1998

Majority: Cooper writing, Wintersheimer, Johnstone, Craves

Minority: Stumbo writing, Stephens,Lambert

After his convictions and death sentences for themurders of Neal Maddox and Harold Southerlandwere overturned in 1988, Frank Tamme was retried and resentenced to death in 1994. Tamme’saccomplice. William Buchanon, was allowed tomake an Alford plea and received 20 years probated for five years.

SpeedyTrial

Tamme argued that his constitutional right to aspeedy trial was violated by the more than fiveyear delay between reversal and retrial. The Courtexamined the four Barker v. Wingo, 407 U.S. 5 141972 factors in its decision. Tamme did not filea motion for speedy trial, but had filed a pro semotion to dismiss for failure to provide a speedytrial. A motion for bail pending retrial was denied. The Court found that such a motion was notan unequivocal demand for a speedy trial.Tamme, slip opinion at 4, citing McDonald v.Commonwealth, 569 S.W.2d 134 Ky. 1978.

Although Tamme was prejudiced by the fact thathe was jailed for the intervening five years, thereasons for delay were not the result of state act.The original judge and the first special judge bothrecused themselves from the case. The secondspecial judge resigned for health reasons. TheCommonwealth took an appeal from the thirdjudge’s order to supply Tamme’s defense with Buchanon’s current address. Three years after reversal, the third trial judge died and a fourth had to beappointed. Venue was changed from WashingtonCounty to Fayette County. and new defense counsel entered appearance. None of the above prevented Tamme from presenting evidence at thesecond trial.

Judicial Recusals

Tamme argued that the first trial judge should nothave recused himself, and that the fourth, whoultimately tried the case, should have. The firsttrial judge recused himself because he did not believe he could impose the death penalty in a case

The Advocate, Vol. 20,No. 5 September 1998

where an accomplice had received a probatedsentence. The trial judge made the proper decision. Id., slip opinion at 6, citing KRS26A.Ol 52a and e.

During a hearing on second counsel’s motion towithdraw, information about money to be given towitnesses by persons close to Tamme caused thefourth trial judge to wonder if he were tainted.Tamme did not request a recusal at that time. TheCourt found neither judge’s decision clearly erroneous. Id., at 7.

Discovery Issues

Tamme argued that he was unable to discoverexactly what consideration Buchanon had givenfor his plea agreement. The Court found thatTamme had never specifically requested the infoniation, and that Tamme knew at the time ofthe agreement before the first trial that Buchanonwas to cooperate and testi& against Tamme.

In 1990, as part of discovery, Tamme asked forand received the polygraph examiner’s case notesand the questions and responses used. He did notreceive the polygraph charts. Because none of thepolygraph evidence was admissible at trial,Tamme was not prejudiced because he did notreceive the charts. Id., at 8, citing Morgan v.Commonwealth. Ky., 809 S.W.2d 704 1991.

Jury Selection Issues

At the beginning of trial, the judge refused to admonish the jury that Tamme’s indictment was notevidence of his guilt. The jury was so admonished in the written instructions. Although theCourt felt the issue had "merit", it did not find reversible error, in part because defense counsel wasable to explain the function of an indictment to thejury.

During group voir dire, the judge inquiredwhether any venireman had read or heard anything about the case, or discussed it with anyone.The prosecutor asked a similar question, and defense counsel read both witness lists to the jury.Because no juror replied affirmatively to thequestions, individual voir dire was not needed.Because of the length of time between the mur

ders, first trial and the second trial, the Court felt itwas not unusual that no venireman had heard ofthe case.

Three jurors were excused for cause because oftheir views regarding the death penalty. Thejudge was correct in his decisions: one juror wasreluctant to impose death; the second did not"think" she could do so; the third had conscientious concerns about the death penalty so strongthat they would conflict with the law.

The court correctly overruled Tamme’s motion toexcuse seven other jurors for cause. The first haddone research on the death penalty, but held nobias in favor of it. The second was reluctant toimpose the minimum penalty, but could considerthe full range of penalties. The third and fourthwere confused about the role of the indictment inthe criminal process, but the third said she wouldcomply with the court’s instructions; the fourthsaid he had not heard the evidence yet, but didpresume that Tamme was innocent. The last threejurors had concerns about mitigating evidence,although all three finally stated that they wouldconsider both mitigating and aggravating evidence. Id., at 11-12.

Another juror was not excused, although she saidshe had vacation plans starting about two weeksinto the trial. At the conclusion of the guilt phase,but before deliberations, the juror was excused;thus, any error in her selection was waived.

The trial court refused to grant defense counselextra peremptories. Although the court did askdefense counsel to file an affidavit stating groundsfor his request, no affidavit was filed. No abuse ofdiscretion occurred.

At the beginning of trial, the jury was admonishednot to read press reports pertaining to the trial.Although an article was published during the trialmentioning that Tamme was being retried after hisfirst death sentence was reversed, the trial courtdid not poll the jury regarding whether anyonehad read the article. The court had admonishedthe jury beforehand; there was no need to makefurther inquiries. Publication of a newspaper article does not create the presumption that the jury


had violated its admonition. Id.. at 14, citing People i’. Ma,w/zaI/, 919 P.2d 1280 Cal. 1996.

Witness Issues

The judge denied defense counsel’s request thateach witness be admonished to stay within theevidentiary boundaries established by the court,saying that such an admonition was the attorneys’responsibility, and that his responsibility was torule on objections if a witness strayed from hisboundaries. Although the court told counsel thatthe motion could be renewed if circumstanceschanged, no new request was made. Thus, noerror occurred.

During direct, the prosecutor asked leading questions of several witnesses. The majority notedthat the trial was lengthy and that witnesses weretestifying to events of eleven years previous.Tamme contended that asking such questions wasprosecutorial misconduct. Although use of leading questions was generally unacceptable prior toadoption of KRE 611c. that rule states that although such questions should not be used in directexamination, they may be used "as necessary todevelop the witness’ testimony." Id., at 16, citingKRE 611c. No error resulted.

Forensic anthropologist Dr. David Wolfe testifiedat the first trial, but died in the interim between thefirst trial and the second. The trial judge informedthe jury that Dr. Wolfe was deceased, and had histestimony read into the record. The court did noterr in informing the jury that Wolfe was dead, notthat he was only unavailable. The court also didnot err in having one prosecutor read questionsand another read Dr. Wolfe’s responses while sitting in the witness chair. Such format enablesjurors to understand testimony as it is read tothem. The Court also noted that the same prosecutor who read Dr. Wolfe’s responses was not thesame prosecutor who was examining most witnesses and who delivered the closing argument.

The Commonwealth impeached both of Tamme’salibi witnesses by asking the number of his felonyconvictions, not just whether he had been convicted of a felony. The Court found no error; theCourt noted that no contemporaneous objectionwas made, although the Court found this unsur

prising since defense counsel asked William luchanon, the chief prosecution witness, the samequestion.

During cross-examination, Tamme was askedabout the origins of pro se pleadings he had tiled.Tamme said the pleadings had been prepared byan inmate legal aide. the Court sustained an objection to the reference, but overruled an objectionto the statements on relevancy grounds. TheCourt found that the evidence was relevant toprove that Tamme was intelligent and educated,and not just a "poor farmer."

Tamme was also asked whether William Buchanon and three other witnesses had lied. While thecourt did not approve of asking one witness tocharacterize the testimony of another, there wasno objection to the question. The Court was ‘unpersuaded that absent this inquiry, the resultwould have been different." id., at 20, citing‘ashy v. Commonwealth, 776 S.W.2d 367, 3269Ky. 1989.

Tamme was also asked whether he knew of a motive Buchanon and another witness would have totestify against him. Tamme’s claim that the question was unfair because the prosecutor knewTamme could not reveal that Buchanon’s motivewas his belief that Tamme had cheated him out ofover $50,000 worth of marijuana was not preserved. Since he answered that he had refused topost bond for Wilson and that he had refused tohelp Buchanon pay off a debt, the court found noharm

Alibi Witness Perjury

After reversal, Tamme filed a motion for new trialbased on the newly discovered testimony of analibi witness, Harold Glidewell. Glidewell testified at a hearing on the motion that he and Tammehad been in Indiana on the day of the murders, andthat Buchanon had told him that he Buchanonhad murdered Maddox and Southerland. TheCommonwealth established that Glidewell had notbeen in Indiana, but in the Barren County Jail onthe day of the murders. He later pled guilty toperjury. At the second trial, on cross-examination,Tamme testified that Glidewell had testified, thathis testimony was false, and that Glidewell had

Page St


been convicted of perjury. On appeal, Tammeclaimed that introduction of that evidence wasimproper impeachment through use of a specificinstance of conduct.

The Court fbund that although a witness’s credibility may be attacked, such entitlement is limitedby CR 43.07 and by caselaw. KRE 608 does notspecifically prohibit such impeachment, but neither is it authorized. However, the Court foundthat the evidence was relevant because it was inconsistent with Tamme’s innocence. Id., at 24,citing McQueenev v. Wilmington Trust ‘a., 779F.2d 916 3d Cir. 1985 "One who believes hisown case to be weak is more likely to subornpenury than one who thinks he has a strong case,and a party knows better than anyone else thetruth about his own case." Moreover, the factthat Tamme called Glidewell and remained silentwhile Glidewell perjured himself also created aninference that "Glidewell simply did not come outof the woodwork or the Barren County Jailtocommit perjury. . .out of the goodness of hisheart." Id., at 27. Lastly, the evidence was moreprobative than prejudicial.

Other Evidence

The Commonwealth introduced evidence thatNorma Southerland, widow of one of the victims,was pregnant with Tamme’s child, that she hadpurchased a revolver a month before her husbanddisappeared, that she obtained a restraining orderagainst her mother-in-law after the disappearance,that she received her husband’s life insurancebenefits and did not attend his funeral. Defensecounsel did not object to any of the evidence.

At the first trial, evidence that Tamme was involved in cultivating marijuana and cocaine trafficking was introduced to prove Tamme’s motivefor killing Maddox and Southerland. The Courtdisagreed, stating that the evidence "tended toprove some sort of jealous-lovers scenario, not adrug deal gone sour." Id., at 36, quoting Tamme v.‘ommonwealth, 759 S.W.2d 51 Ky. 1988. Atthe second trial, the Commonwealth’s theory wasthat Tamnie’s motive was related to his affair withNorma Southerland. Evidence regarding NormaSoutherland’s pregnancy resulted in a child shenamed "Frank" was relevant. Evidence regarding

the purchase of the revolver contradicted her testimony that the gun was a birthday gift from herdead husband. There was evidencc that NormaSoutherland got the restraining order to preventher mother-in-law from calling whether there wasany new evidence regarding Harold Southerland’sdisappearance. Receipt of the life insurance proceeds was found relevant to motive. The fact thatNorma Southenland did not attend her husband’sfuneral supported the Commonwealth’s theory thatshe and Tamme were having an affair. Id.

Instructions

On appeal, Tamme asserted that he was entitled toan instruction on Manslaughter First Degree because the jury could have found that the "triggering event" was his desire to retaliate against Harold Southerland for beating his wife, and Tamme’sparamour. The Court did not find justification forsuch an instruction: Nonita Southerland testifiedthat she did not tell Tamme that her husband beather, and Tamme did not testify that he knew aboutthe beatings. Moreover, justification for such aninstruction is found "only ‘when there is probative,tangible and independent evidence on initiatingcircumstances". Id., at 42, quoting Morgan, supra, and Weilman v. Commonwealth, 694 S.W.2d696, 697-98 Ky. 1985.

There was also no evidence that an instruction onwanton murder or manslaughter were needed.There was no evidence that Tamme unintentionally killed either Southerland or Maddox. Bothwere shot in the head. Id.

Tamme’s request for a penalty phase instructionon the mitigating circumstance of being an accomplice was properly denied. Such an instruction is proper only when participation is "relatively minor’." There was no evidence that anyone other than Tamme was the triggerman.

Dissent by Justice Stumbo

Justice Stumbo wrote that she disagreed with themajority’s opinion on the Glidewell perjury andthe polygraph issue.

Buchanon testified that he had been interviewed atthe London State Police Post for a polygraph.


Prior to his testimony, defense counsel had beenconcerned that Buchanon might refer to inadmissible evidence. Buchanon’s statement must beconsidered in the totality of the circumstances: hewas the Commonwealth’s main witness, as theprosecutor acknowledged in his opening statement. Buchanon’s statement could easily have ledthe jury to infer that he had taken a polygraph.The fact that Buchanon was the Commonwealth’sstar witness leads to the logical conclusion that hehad passed the examination, and was truthful.

When considered in conjunction with theGlidewell issue, the prejudice is even more pronounced. The majority relied upon Foley v.Commonwealth, 942 S.W.2d 876, 887 1997, inwhich the court stated that attempts to suppresstestimony or convince a witness to swear falselywere admissible of evidence tending to demonstrate guilt. However, in Foley, the person whomFoley was accused of intimidating testified at trialand accused Foley of doing so. In his own testimony, Foley attacked the credibility of that witness and opened the door for his own cross-examination.

In contrast, Glidewell did not testi& for or againstTamme. The Commonwealth also did not seek toprove that Tamme was involved in anyway withGlidewell’s testimony and subsequent convictionfor perjury.

Because Tamme essentially involved a swearingmatch between Tamme and Buchanon, "evenmarginally relevant evidence" is important inreaching a verdict. The jury did not have facts orphysical evidence; its only evidence "the intangible factor of which witness seemed to be tellingthe truth." Id., at 5.

ROWLING V. COMMONWEAL TH,- S.W.2d - decided February 19, 1998

MAJORITY: Cooper writing, Stephens,Lambert, Wintersheimer,Johnstone, Graves, Stumbo

Ronnie Bowling’s convictions of murder and robbery and sentences of death were affirmed onApril 24, 1997. Bowling v. Commonwealth, 942S.W.2d 293 Ky. 3997. His petition for certiorari

to the United States Supreme Court was denied onNovember 18, 1997. Bowling v. Kentucky, 118S.Ct. 451 1997. On November 2!, 1997, Governor Patton signed a warrant authorizing Bowling’s execution on December 23, 1997. On December I, 1997, defense counsel filed a Motionfor a Stay of Execution and two other motions inthe Laurel Circuit Court. The circuit court deniedall the motions because of lack of jurisdiction onDecember IS, 1997.

The trial court correctly concluded that it did nothave jurisdiction to hear the motions. A courtloses jurisdiction over a case ten days after entryof the final judgment, and reobtains jurisdictiononly upon filing of a proper RCr 11.42 or CR60.02 motion, or a petition for a writ of state habeas corpus under KRS 439.020. Bowling, slipopinion at 2, citing Thoma.c Bowling et at v.Commonwealth, 926 S.W.2d 667, 669-70 Ky.1996.

In this appeal, Bowling asserted that the Anti-Terrorism and Effective Death Penalty Act of1996 AEDPA, which, in part, requires that petitions for writs of habeas corpus be filed not morethan one year after conclusion of direct reviewaffected the rights of Kentucky’s governor to setexecution dates in death penalty cases. Id., citing28 U.S.C. 2244 and KRS 431.218. Bowling argued that the language in the amendment created agrace period of one year in which to file for post-conviction relief, which prevented the state executive from setting an execution date.

However, the court found that interpretation "directly contradicted" one of the purposes of theAEDPA, which was to prevent delay and abuse indeath penalty cases. Moreover, the amendment of§2244 affects only federal habeas corpus proceedings, and is akin to the three-year statute oflimitations found in RCr 11.4210. Thus, § 2244clots not affect either the time-limit found in RCr11.4210, nor the governor’s ability under KRS431.218 to set an execution date.

O’Guinn v. Dutton,88 F.3d 14096th Cir. 1996

TheAdvocate,Vol. 20, No. 5 September 1998

Merritt, Martin, Jones, Muburn, Nelson, Ryan and MoorejoiningMerritt writing, JonesBoggs writing, SlIer andBatchelderBatchelder writing, Kennedy,Boggs, Norris, Suhrheinrich,Siler

Kenneth Wayne O’Guinn was convicted of themurder and aggravated rape in the Tennessee statecourts. After filing his federal habeas corpus petition and utilizing federal discovery procedures,O’Guinn learned for the first time that possiblymaterial documents had not been turned over todefense counsel before-trial, in violation of Bradyv. Maryland, 373 U.S. 83 1963. O’Guinnamended his habeas petition to include this claim.The district court granted his petition, which athree-judge panel of the Sixth Circuit reversed.See O’Guinn v. Dutton, 42 F.3d 331 6th Cir.1994, vacated, 42 F.3d 359 6th Cir. 1995; TheAdvocate,

The en bane court decided that O’Guinn’s petitionmust first be entertained in the Tennessee statecourts because of the nature of the claims."O’Guinn’s Brady claim involves the conduct of astate prosecutor in particular, his decisions regarding the withholding of evidence in a statetrial in which the defendant was prosecuted forviolating state law." O’Guinn v. Dutton, 88 F.3d1409. 1413 6th Cir. 1996. Thus, even if Granberry v. Greer, 481 U.S. 129 1987, did not provide a presumption in favor of returning mixedpetitions to the state courts, O’Guinn’s claims present an appropriate opportunity to do so.

Concurrence

Judge Merritt, who sat on the panel and again onthe en bane decision, wrote separately to note hisconcerns about the case because "regardless ofO’Guinn’s guilt or innocence, he is entitled to afair trial and vigilant protection of his constitutional rights. He received neither in this casebecause the errors were egregious. Id.. 88 F.3d at1414.

WeakEvidenceTo Convict

"[T]he few pieces of evidence pointing to O’Guinnare of questionable reliability. No physical evidence tied O’Guinn to the victim or the murderscene. Only two eyewitnesses saw O’Guinn withthe victim on the night of the murder. DannyDunn, one of the eyewitnesses, who is illiterateand has mental problems, described the man hewas with the victim as being 6’4", with a mediumbuild. O’Guinn is 5’9" and weighed about 190pounds at the time of the murder. However, thedescription does fit several regulars at the Hat &Cane, a Jackson, Tennessee, bar where SheilaCupples was last seen alive. Dunn described theman as a stranger, but had only been a regular atthe bar for the three weeks prior to the murder.ld.,at 1415.

The other eyewitness, Diana King Pitsenbarger,was a waitress at the bar and gave a statementonly after her own arrest two years later. However, she recanted her statement and trial testimony several years later. She testified atO’Guinn’s habeas hearing that she lied at trial be-cause the police had threatened to arrest her onunrelated charges and because she believed shewould be helped with her own criminal trouble ifshe cooperated. Id., at 1416.

O’Guinn confessed to the murder, only after"forty-two days of interrogation, numerous interrogations by at least three law enforcement officers from two states, without the benefit of legalcounsel, and in a weakened physical state due toillness". Id.

Moreover, the text of O’Guinn’s statements doesnot fit with the information known to police.Information "matched" what the police knew onlyin the broadest terms. When O’Guinn was pushedto give details, that information was invariably atodds with the facts of the case. For example,O’Guinn said that Ms. Cupples was wearing a bluelong-sleeved shirt, even though the facts showedthat she was actually wearing a pink halter top.Id. In short, the police led and coaxed O’Guinn togive much of his "statement". The only physicalevidence at the scene which did not come from thevictim were three brown hairs which did notmatch Kenneth O’Guinn’s. Id.

Majority:

Concurrence:Minority:


TennesseePost-ConvictionAct

In 1995. the Tennessee legislature passed a newPost-Conviction Act. which replaced the one thenin existence. The new act provides that "reliefmay he granted ‘when the conviction or sentenceis void or voidable because of the abridgment ofany right guaranteed by the Constitution of Tennessee of the Constitution of the United States."hi., at 1418, citing Tenn. Code Ann. §40-30-203.It also changed the definitions of "waived" and"previously detennined". Id., citing Tenn. CodeAnn. §40-30-206g; h.

Brady Claim

In KvIev i’. W/ziilet’, 115 S.Ct. 1555 1995, theSupreme Court held that when a court is presentedwith a Brady claim, it must assess the collectiveeffect the withheld evidence had in light of theevidence presented at trial. In this case, the weakness of the state’s evidence makes it likely that hadthe withheld evidence been presented to the juiy,reasonable doubt may have been created. Id., 88F.3dat 1419.

Defense counsel were led to believe that they hadobtained the entire file from the prosecution, andhad no reason to believe otherwise. Had counselknown about that evidence, it is likely that theirtrial focus would have shifted. As it was, thewithheld evidence prevented counsel from effectively cross-examining or possibly impeachingcertain witnesses. "Here the collective effect ofthe withheld evidence, particularly when juxtaposed against the relatively weak evidence at trial,undermines confidence in the guilty verdict." Id.

IAC Claim

One of the number of claims the Tennessee Courtof Appeals rejected on "waiver" or "previous determination" grounds was O’Guinn’s ineffectiveassistance of counsel claim. However, this decision is not supported by the record; in its orderdenying O’Guinn’s first state post-convictionpleading, the trial court affirmatively stated thatdefense counsel had not been ineffective. TheTennessee Court of Appeals dealt only with theissue of whether O’Guinn’s Alabama pre-trialcounsel had been effective. Id., at 1423.

However, the record does support the fhct thatdefense counsel was ineflCctivc at sentcncing.Counsel’s total failure to investigate ‘iuinn’sbackground and discover the wealth of easilyavailable mitigating evidence satisfies bothStrickland v Washington,466 U.S.. 668 1984,requirements: I deficient performance; 2 prejudice as a result.

Boggs Dissent

Judge Boggs wrote that he saw "no indication thatthe investigative and discovery tools that developed the material allegedly supporting the Brad;’claim" did not exist during either of O’Guinn’sstate court proceedings. Id. In fact, only after theSixth Circuit panel reversed O’Guinn’s grant and"plac[ed] O’Guinn on a direct track toward execution" and en bane argument had been granted, didcounsel "dr[a]w another arrow from their quiver"by raising the Brady claim. Even then, O’Guinndid not request dismissal of the habeas action, butattempted to maintain "the best of both worlds".If en bane argument went well, then O’Guinnwould succeed on the merits. However, if it didnot, O’Guinn could then argue that the entire process should be remanded to the state courts. Id., at1431.

The Granherry opinion did not even contemplatethe sort of situation O’Guinn placed the Sixth Circuit in: the habeas petitioner himself seeking it

mand to the state courts to adjudicate issues hefailed to raise in the state courts. Thus, Boggsfound that the procedures employed in this caseare "completely contrary to [Granherrv’ie] language and intent." Id.

Batchelder Dissent

Batchelder felt that the court could examine theBrady claim, particularly because the district courthad conducted a full hearing on it. Numerouswitnesses testified, and two bound volumes ofdocuments accompanied an affidavit by trialcounsel. O’Guinn himself said that no further evidence was to be introduced. Id., 88 F.3d at 1435.

Because the State of Tennessee had never requested dismissal of the petition so the state courtscould have first crack at the Brady claim, the court


cannot be said to have interfered with the administration oFjustice in the state courts if it heard thehabeas petition. O’Guinn chose to file the habeaspetition with the Brady claim; he could have presented it to the state courts first.

She then examined the Brady claim under the criteria for materiality of evidence set forth in Kylesv. W/iitk’v, 115 S.Ct. 1555: I whether, in the absence of the undisclosed evidence the defendantreceived a fair trial worthy of confidence in theverdict; 2 a showing that the favorable evidencecould reasonably have put the case in such a different light that confidence in the verdict is undermined; 3 no need for harmless-error reviewafter a finding of error; and 4 collective consideration of the evidence, Id.. at 1436; citing Ky/cc,115 S.Ct. at 1566-1567.

Viewed as a whole, the undisclosed evidence,which consisted of statements from witnesses atthe Hat and Cane the night of Sheila Cupples’murder, was not material, under the Ky/es standard. Two witnesses who had given statementswere found "completely incredible" by the district court. Id., at 1437. Leads from informationgiven by other witnesses were followed up by investigators. None of this information was strongenough to undermine the import of O’Guinn’s confessions, and therefore, would not reasonably haveput the case in a different light. ld., at 1439.

Ineffective Assistance OfCounsel

After an "exhaustive review" of the record,Batchelder felt that O’Guinn’s allegation of ineffective assistance of counsel was procedurally

defaulted. Counsel admitted that the issue was notraised in O’Guinn’s first state post-convictionpleading. The argument that because the courtsua sponte ruled that counsel had been effectivedid not bring into play Harris v. Reed, .vupra,cause and prejudice analysis’s "untenable." Id., 88F.3d at 1449. Under the Tennessee post-conviction procedure then in existence, "waiver"was defined as a knowing and understanding failure to present a claim in a court where the groundcould have been presented. Id., 1449. citing Tenn.Code Ann. §40-30-1121990.

O’Guinn’s claim that he had cause for not timelyraising the claim because his post-convictioncounsel was ineffective also fails. There is noconstitutional right to counsel in post-convictionproceedings, nor is there a right to effective counsel in those proceedings. Id., 1452, citing Pennsylvania v. Finley, 481 U.S. 5511987; ‘olemanv. Thompson, 501 U.S. 722 1991. Thus, theonly examination the court can undertake iswhether O’Guinn is "actually innocent" of thedeath penalty. Id.. 88 F.3d at 1452, citing lv!urravv. ‘arrier, 477 U.S. 478 1986; Sawyer v.Whitley, 505 U.S. 333 1992. However, O’Guinncannot show by "clear and convincing evidence"that no reasonable juror would have found himeligible for the death penalty. Id., citing Sawyer,505 U.S. at 348.

Julia Pearson, ParalegalCapital Post-Conviction Branch100 Fair Oaks Lane, Suite 301Frankfort, Kentucky 40601Tel: 502 564-3948; Fax: 502 564-3949E-mail: jpcarsonmaiI.pa.state.ky.us*

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12th Litigation Practice Institute; Kentucky Leadership Center, Faubush, KY; October 4-9, 1998with 3 litigation tracks: trial, appeal, and post-conviction

* Racial JusticeAct Conference,Executive Inn Hole!, Louisville, KY; October 27, 1998* 27’h Annual Public Defender Conference; ExecutiveInn Hotel, Louisville, KY; June 14-16, 1999

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* NLADA AppellateDefenderTraining,November19-22, 1998,HamptonInn Downtown,New Orleans,LA* NLADA 76th Annual Conference,December9-12, 1998,SanAntonio,Texas

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I thoroughly abhor the political corruption which ahs so often stained the democratic process inKentucky’s history. Every vote bought, every private driveway paved at public expense, every meanand selfish act of a public school board, failure of the courts and criminal act by a public official hassoiled Kentucky’s image and diluted its integrity.

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