Advocate

Vol. , No. 1 A bi-monthly oublication of the Office for Public Advocacy Dec. ,. 1979

ETHICS: QUANDARIES &TEXQUAGMIRES FITZGERALD

BY: Vince Aprile Director for Professional Development Office for Public Advocacy The death of Terrence R. Fitzgerald in September of this year has left the Query: May a defense attorney ethi legal profession, in general, and his cally permit his client in a colleagues, in particular, with a pro criminal case in Kentucky to found sense of loss. It serves no enter a plea of guilty even purpose to question why he died, for though the defendant is even if answers were provided he either not willing or unable would still be gone. But we can to admit his guilt? reflect upon the incredible contribution to the practice of law that he made, "[WJhile most pleas of guilty consist of and remember for a moment the man we both a waiver of trial and an express knew. admission of guilt, the latter element is not a constitutional requisite to the Ma rti nda I e- Hubbell’s tells us that imposition of criminal penalty.1’ North "Tex" was born in 1939 and was Carolina V. Alford, 400 U.S. 25, 91 awarded his LLB from the University S.Ct. 160, 167, 27 L.Ed.2d 162 of Kentucky School of Law in 1964. 1970. Furthermore, "fain individual For a long time I knew little more of accused of crime may voluntarily, his background, and most of what I knowingly, and understandably consent did learn came from sources other than to the imposition of a prison sentence Tex. even if he is unwilling or unable to admit his participation in the acts Eventually, and only with considerable constituting the crime." Id., 91 S.Ct. prompting, he revealed a little of the at 167. private man. I learned, for example, that he was an avid basketball fan, In North Carolina v. Alford, supra, though he seldom sat to discuss the "the State had a strong case of first game. He was proud of his bridge degree " against Alford. "Con ability, but played all too infre fronted with the choice between a trial quently. One could detect a sense of for first-degree murder, on the one joy when he attended social hand, and a plea of guilty to second- gatherings, but he often arrived late degree murder, on the other, Alford and left early. He was devoutly quite reasonably chose the latter and religious, and that was never masked. thereby limited the maximum penalty to He was a traditional family man in a a 30-year term." Id., 91 S.Ct. at day when the traditional family is 167. The Supreme Court emphasized under attack. that Alford’s plea of guilty had to be

See Ethics, Page 13 Continued, Page 2 At the office, I observed that he was answer. Seldom was one disappointed. a quiet man. And, although it is His command of the body of rules and fashionable at times like this to say cases which comprise the criminal law that everyone was his friend, that was of Kentucky was nothing short of not true. Many didn’t know him well. phenomenal. His desire to communicate Some felt that he was cold and aloof. this knowledge, and thereby improve But everyone respected him. From the quality of criminal justice, ulti nine to five he was intense, fighting mately forced him into new endeavors. his legal battles with never ending energy and conviction. Occasionally, The wealth of information and under he was subject to displays of temper if standing Tex had for the criminal law he received an adverse ruling. But allowed him to produce an office always, he continued his quest to make manual for Jefferson District Public sense out of the law and to make it be Defender lawyers. It was regarded as fair and consistent. an unequaled reference source for them, and there was comfort in know He v’as a lawyer. First and foremost ing that at all times it was complete he was a lawyer. Most of the staff at and accurate. the Jefferson District Public Defender, and many of those who have served Recognizing that there was a very real there in the past, were in no small need to collate and condense the manner shaped by Tex Fitzgerald. As expansive body of criminal law into a an instructor in the University of source which would benefit lawyers Louisville Law School’s criminal justice engaged in the practice of criminal internship program, he literally made law, Tex began research on what was law students into practicing lawyers. to become, Fitzgerald, Criminal With his expert guidance they learned Practice and Procedure Ky. Practice, to transform raw research skills into Vol. VIII. The significance of that precise, polished techniques, and to book cannot be overstated. With its produce cogent, professional appellate publication in 1978, lawyers state-wide pleadings. Through him, they were could begin to benefit from the know taught how to mold basic knowledge of ledge Tex had obtained. His con the law into a formidable courtroom tribution to the improvement of weapon. criminal justice in Kentucky was grate fully received, and is today regarded Tex’s was not an "ivory tower" view of by many as the definitive word on the challenges which confront the criminal law. Across the state, practicing lawyer; he offered insight lawyers who never met Tex Fitzgerald gained from personal experience. He now owe him a debt of gratitude. His left law school to become a trial book has reached out to those he could attorney, first in private practice and not touch, and helped them to become later with the Jefferson District Public better lawyers. Because of him we are Defender. When the demands of a better informed and more able to strive growing appellate case load neces to achieve that illusive goal of justice sitated specialization at that office, for all. He is missed, but his mark on Tex Fitzgerald became Chief Appellate the profession continues; and while it Defender, a position he held till his is tragic that he died when he did, it death. would be so much more tragic to us all, had he never lived. Still, he was always available for consultation with the staff. There was a universal belief that if you had a legal question, Tex would have the

-2- WEST’S REVIEW OF RECENT 208 when he became eighteen." Con DECISIONSCOURT tary t the holding in Johnson et. aI. V. Bishop, the Court held that waiver Case law for the months of September proceedings are unnecessary unless and October includes two conflicting the district court first assumes juris decisions involving juvenile jurisdiction diction. Discretionary review will be from the Court of Appeals. In sought to resolve this conflict. Johnson, et. al. v. Bishop, Ky. App. 26 K.L.S. 13 September 21, 1979, In Commonwealth v. Keller, Ky.App. the Court, in an opinion by Judge 26 K.L.S. 14 October 19, 1979, the Wilhoit, granted the defendants’ peti Court of Appeals granted a writ of tion for a Writ of prohibition pre prohibition sought by the Common venting the Leslie Circuit Court from wealth after the Fayette Circuit Court trying them for robbery. The charged refused jurisdiction of a misdemeanor offense had occurred prior to the joined with a felony in an indictment. defendants’ eighteenth birthdays. The Court of Appeals cited KRS Juvenile petitions charging the defen 24A.1102, which gives the district dants with robbery were filed in court exclusive jurisdiction of mis district court but no action was taken. demeanors, "except where the charge Then, following the defendants’ is joined with an indictment for a eighteenth birthdays, both were in felony," as standing for the principle dicted. The Court of Appeals, grant that a district court may waive its ing the writ, cited KRS 208.0201 jurisdiction of such misdemeanors which vests in the district court regardless of any prior appearance "exclusive jurisdiction" of "any person before it by the accused. who at the time of committing a public offense was under the age of eighteen The Kentucky Supreme Court has years." Because the charged offense definitively answered the question of had been committed while the defen what measure of value is to be used in dants were less than eighteen, and determining whether an accused is because there had been no waiver of guilty of receiving property valued at the district court’s jurisdiction, the more than $100 a felony or less than Court of Appeals held that the circuit $100 a misdemeanor. Tussey V. court lacked jurisdiction to try the Commonwealth, Ky., 26 K.L.S. 13 defendants. October 9, 1979. Tussey had been charged with receiving stolen copper A contrary holding was reached by the wire which, although it was worth Court in Johnson v. Commonwealth, approximately $1500 when stolen, had Ky.App., 26 K.L.S. 13 September 21, been damaged and reduced to an 1979. Again, the defendant had acknowledged value of less than $100 committed the charged offense before when received by Tussey. Tussey his eighteenth birthday, and, although was convicted of receiving property a petition had been filed in district worth more than $100 and the Court of court, no proceedings had followed. Appeals affirmed after holding that the Upon becoming eighteen the defendant controlling value was that at the time was indicted and subsequently tried of the theft. The Supreme Court, and convicted. The Court of Appeals, reversing that decision, observed that Judge Wintersheimer writing, held "[t]o hold an individual responsible for that, because no proceedings had an act unrelated to his or her own taken place in the district court, that criminal liability would contradict all court had not exercised jurisdiction theories of fairness in modern justice." over the defendant. The Court then reasoned that, as a result, the defen dant "lost the protection of Chapter Continued, Page 4

_3. In Clark v. Commonwealth,STAFF Ky., 26 NOTES K.L.S. 14 October 30, 179, he Court held that the trial court had DANNY DEES is a new investigator in erred in failing to order an evidentiary Madisonville. He replaces CRAIG hearing to determine the defendant’s WILLIAMS who was transferred to competency to stand trial. The trial Winchester and subsequently went to court had ordered a psychiatric ex law school at the University of Ken amination of Clark but declined to hold tucky. You may reach DANNY at a hearing based on the psychiatrist’s 82l-l508 or 52 Murphy Street Madi report that Clark was competent. The sonville, Kentucky. Supreme Court held that a hearing was required by KRS 504.0404. That RANDt’I’ JEWELL has been transferred statute provides that after a defendant from Russell Springs to London to take is psychiatrically examined on the the place of DOUG WILSON who has basis of reasonable grounds to believe left us to become an investigator for he may be incompetent "the court shall the Federal Public Defender in Lex order an evidentiary hearing on the ington. You may reach RANDY in issue of the defendant’s competency to London at 606 878-8042. His address stand trial." Despite the error the is P.O. Box 277, London, Kentucky Supreme Court declined to reverse 40741. Clark’s conviction because no hearing was requested and because there was The office has three new attorneys. no showing of prejudice on the record. They are JOHN HENRIKSEN who will In so doing however, the Court noted: be working in Frankfort with the "That is not to say that we will not Protection and Advocacy program; enforce the mandatory provisions of PETER KUNEN, who will be working in the statute in other circumstances." the Southeast Project out of the Hazard Office; and NEAL WALKER who No opinions were issued by the U.S. will also be working in the Southeast Supreme Court during September and Project out of the Prestonsburg office. October. However, the Sixth Circuit Congratulations to each of you. Court of Appeals granted federal habeas corpus in the case of Eberhardt BOB ARNOLD who had been the V. Bordenkircher, 6th Cir. F.2d Director of the Protection and Advo

- decided September 10, 1979. cacy program and more recently Execu The Kentucky Supreme Court had tive Assistant to Mr. Farley has affirmed Eberhardt’s conviction of first recently been appointed Executive degree robbery after holding that Assistant to Mr. John L. Smith, the prosecutorial error in commenting on Secretary of Justice. Eberhardt’s failure to take the stand was not prejudicial. The prosecutor, JIM WOOD, who has been with us both while pointedly gesturing toward as an appellate attorney and more Eberhardt, had invited the jury to ask recently as Administrative Assistant in themselves what additional witnesses charge of the Southeast Project left on the defense could have called. Noting November I, 1979, to go to work in the that the evidence against Eberhardt, Commonwealth Attorney’s Office for while strong, was not overwhelming, Jefferson County. and that the jury was not admonished following defense objection, the Sixth PEGGY RICHARDSON, our librarian for Circuit concluded that this error was the last 2 1/2 years left us on not harmless beyond a .reasonable November I, 1979. She will be working doubt. for the Department For Human Resources in Louisville. LINDA WEST BILL AYER

-4- MALPRACTICELEGAL This criticism rests on the dubious assumption that lawyers will always Representing "Mentally Different" adhere to the basic tenet of their Code Clients of Professional Responsibility, which states, "A lawyer should represent a by Robert Plotkin client zealously within the bounds of the law." This is not an unrealistic expectation of an attorney representing involuntary patients, because commit ment involves the loss of individual Robert Plotkin is an attorney with liberty, the most fundamental of all the Mental Health Law Project, a constitutional rights. public-interest law firm in Washington, D.C. The views expressed are his But in actual practice, lawyers rou own, and do not represent the official tinely disregard their primary duty to policy of that office. This article represent their mentally disabled originally appeared in the American clients properly. The same zealous Psychological Association’s Monitor and advocates who declaim the right of is reprinted here with permission. every accused criminal to a day in court have determined paternalistically that similar legal protections would not benefit persons branded mentally "sick." This basic misunderstanding U.S. Supreme Court Chief Justice of the lawyer’s role in the mental Burger believes that more than half of health system derives from the perva America’s attorneys are incompetent as sive but misguided belief that mentally trial lawyers. Much of the public ill people cannot judge what is "best" suspects that all lawyers are shysters. for themselves. This "justifies" the And mental health professionals, feel lawyer and/or hospital staff in making ing beseiged by class actions and that determination for the client. malpractice suits, often see lawyers as impeding the effective provision of As a result, most lawyers do not act services. Attorneys, in short, are as advocates for their clients. They suddenly finding themselves the sub satisfy the technical legal demand that ject of strict social scrutiny. patients "have" an attorney, while actually responding to the concerns of Such criticism is well earned and comes the mental health professionals that none too soon. There is, however, a treatment objectives not be thwarted. particular irony in the mental health In short, the legal profession is guilty workers’ view: they may be right to of making the same assumptions about criticize lawyers, but for the wrong its mentally handicapped clients as do reasons. Usually their complaints are the psychiatrists, psychologists and against ritualistic hearings and exten other "helpers" who also do what they sive record keeping requirements, believe is best for their patients. which are said to drain resources and attention from patient needs. They The most striking example of this charge that lawyers cause unnecessary practice occurs at civil commitment tensions and frictions by their reliance hearings. These hearings, which upon adversarial tactics and "legal authorize the person’s involuntary technicalities," thereby delaying or confinement and treatment, are at the denying services to people in need of very heart of the public mental health treatment. system. The decision to commit is a legal one, arrived at after testimony

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-5- by mental health professionals. But trained in psychology, signed more the "expert" opinions of these wj.t than 70 percent of the petitions after nesses are of questionable scientific only a cursory examination of the validity. Numerous studies have subject. But when they appeared in demonstrated that "mental illness" and court they were rarely cross-examined, "dangerousness" are elusive concepts and in no case did any defense counsel that psychiatrists have great difficulty present an independent expert witness reliably identifying and treating. to testify for his or her client. Their testimony is therefore vulnerable Appeals were taken in less than 6 of to proper cross-examination tech the 400 cases considered during that niques, and lawyers trained in the art period. of advocacy ought to shine in these situations. However, reports from These findings are not atypical. across the country show that lawyers Classic studies from Texas and Arizona representing potential mental patients confirm their results, and other less consistently fail to act as effective formal observations in numerous locales advocates for their clients, choosing have reached similar conclusions. In a instead to defer to the expertise of Michigan state court a judge in one clinicians. day appointed legal guardians for hundreds of mentally retarded per For example, according to statistics sons; each "case" lasted one to two compiled from commitment hearings held minutes and each person was "repre during 1975 in Milwaukee, Wisconsin, sented" by a lawyer. judges there often conducted as many as 15 hearings a day before lunch. In any other context, these practices The average case took no more than would surely constitute malpractice. seven minutes. Of the hundreds of Yet few lawyers have ever been disci lawyers who practice in the Milwaukee plined by the bar or sued by their area, that year only six different clients for their actions in a commit attorneys represented 827 different ment hearing. Indeed, complaints are subjects for commitment. These rarely filed, for the only aggrieved attorneys routinely waived their party has usually been adjudged "sick" clients’ basic rights, such as the right and incarcerated. to a jury trial and to subpoena wit nesses. When they did bother to Many observers believe that these cross-examine adverse witnesses, the problems stem not from lawyers’ per lawyers asked an average of two sonal judgments about their clients but questions. Although more than 800 from their lack of sophistication con cases were heard that year, only one cerning the complexities of mental appeal was filed. health law and its baffling jargon. Very few law schools or continuing A more recent analysis by the Mental education programs provide training in Health Law Project of the commitment this area. Accordingly, it may be that procedures in Arlington County, lawyers are intimidated by the exper Virginia, revealed a similar pattern. tise of mental health professionals and During one 33-month period, 1976-78, simply need better training. However, the same three attorneys represented a recent report in the journal Law & the "defendants" in 53 percent of all Human Behavior discounts this theory. the hearings. People were confined to In that study, attorneys who were state institutions on the basis of rote appointed to represent clients facing medical recitations filled in by the commitment attended a workshop, judges-often improperly-on preprinted which stressed their role as advocates forms. The same two physicians, and provided them with a handbook neither one a psychiatrist or specially See Plotkin, Page 12

-6- probation, shock probation or condi tional discharge is still eligible for conditional release even though not eligible for conditional discharge.

More importantly, KRS 533.060 does not apply to one convicted of a felony while on conditional release. This means that this defendant is eligible for probation, shock probation and conditional discharge as well as condi tional release. CONDITIONAL DISCHARGE RELEASECONDITIONAL Also the defendant is eligible for concurrent sentencing. Even though Even though conditional discharge and conditional release is the practical conditional release are terms which equivalent of parole it is not parole. sound alike they are in fact completely Therefore the court still has the different. This difference is particu discretion under KRS 532.110 to run larly significant in relation to KRS the new sentence concurrent to any 533.060. other sentence including the sentence on which the defendant was condi Conditional discharge is basically a tionally released. form of probation. If a defendant is convicted the sentencing court may It is interesting to note that the suspend the execution of the sentence legislature has at times apparently had of imprisonment conditionally and difficulty grasping the difference release the defendant without super between conditional release and condi vision. KRS 533.0202. On the tional discharge. Three changes have other hand conditional release is the been made in the statute dealing with equivalent of a mandatory granting of Persistent Felony Offender sentencing, parole during that part of the defen KRS 532.080, beginning in mid-1976. dant’s sentence for which he has The two earliest changes stated that, accumulated good time credits. KRS "A person who is found to be a per 439.555. sistent felony offender in the second degree shall not be eligible for pro The distinction between these two bation, shock probation or conditional concepts becomes important in relation release." The last amendment how to sentencing under KRS 533.060. ever, states that a second degree Under that statute if a defendant is persistent felony offender is not eli convicted of a felony while on parole, gible for "probation, shock probation probation, shock probation or condi or conditional discharge." KRS tional discharge the defendant is not 532.0805. Emphasis added eligible for probation, shock probation or conditional discharge. Also the If you have any questions regarding sentence on the new felony cannot run the difference between conditional concurrently to any other sentence. discharge or conditional release please contact the Post-Conviction Services Significantly, the statute has no men Division of the Office for Public tion of conditional release. This is Advocacy. important in a number of respects. Obviously, the defendant who is con victed of a felony while on parole,

-7- COOPERATION REQUESTED IN POST-CONVICTION reasons for checking out the defen INVESTIGATIONS dant’s allegations. For example, a defendant may allege that the defense It is well known that under KRS attorney failed to interview a witness Chapter 31 a "needy person" is en who could have absolved him of the titled to the representation of counsel crime. In this case the record would at trial and on appeal. However, he not reflect such a failure, and thus an is also entitled to representation in investigation by the post-conviction any post-conviction proceeding if he attorney is mandatory. and his attorney consider it appro priate. KRS 31.1102c. Accord To put it simply the defense attorney’s ingly, the Post- Conviction Services information will always be important no Division of the Office for Public Advo matter what issue we are investigating. cacy is contacted regularly by inmates Therefore the Post-Conviction Services with requests for assistance in various Division wishes to stress its duty of post-conviction matters, usually for assistance and requests that any assistance in preparation and repre attorney who is contacted by us not sentation on motions to vacate, set take offense that we are so investi aside or correct sentence under RCr gating. Often our investigation will 11.42. Consequently, the PCSD is reveal that the allegations are un obligated by Chapter 31 to investigate founded; however, without the cooper the merits of all allegations which are ation of the trial attorney our task is made. made much more difficult. All of us are cognizant of the fact that criminal One issue which is often raised by a proceedings are often complex and request is that the defendant was difficult to handle. However our denied effective assistance of counsel primary concern should be that the during the trial proceedings by his defendant receive the fairest trial defense attorney. The Kentucky possible despite any mistakes which Supreme Court has ruled that this is a may have been made. Your under- proper issue for inclusion in an RCr standing and cooperation in these 11.42 motion. Therefore, due to the matters will be greatly appreciated. fact that the RCr 11.42 motion can be filed only once, this issue is presented to us regularly so that we will deter mine whether or not it is of any merit. Due to our obligation to check out all allegations, we will then contact the defense attorney to obtain his version of the error which was alleged to have been made.

Unfortunately, our requests for this information are sometimes met with reluctance to cooperate and occas sionally hostility. Some attorneys believe that merely because we check into the allegations, that we have determined from the inmate’s state New Assistant Public Advocates John ments that the attorney was indeed Henricksen fifth from left and R. ineffective regardless of the record. Neal Walker second from right pic This is not the case, however. Even tured with, from left to right Gayla if the record of a trial reflects that Keown, Jack Farley, Bill Stewart, Bill the proceedings were handled flaw Ayer, Patricia Walker, and Lieutenant lessly there may nevertheless be valid Governor Martha Layne Collins.

-8- DEATHPENALTYTHE Death is Different

Copywright 1979 Don Wright Dis EXECUTING SPENKELINK tributed by Special FeaturesWAS Reprinted ACRIME with Permission. This is an article by William John Spenkelink was executed on May F. Buckley, Jr. and appears with his 25, 1979. He could not have been permission. sentenced to die under Kentucky’s law. Rational? Watching the television news Fair? Acceptable? Hardly’. on the day Florida executed John Spenkelink, I was struck by the Jesse Bishop’s recent execution re eye-ogling bias of the rendition quires us to reflect on the appro CBS’s. priateness of the death of John Spenkelink, as well as for any human There was coverage of the being. Let us do that with William F. anti-capital punishment demonstrators, Buckley: of the late-night vigil of the death

Continued, Page 10

-9- chamber, of a woman reporter-witness clemenqy, and the decision was nega who described the agony on the face tive, as were several appeals. of Spenkelink when he was strapped to the chair, of the wails of the Spenkelink, 30, was a young bereaved, the macabre procession of no-good who, however, had specialized the hearse and the doffed hats of some in non-violent offenses. of the guards. He had escaped from a It was, in brief, a brief minimum-security prison in California, against capital punishment. picked up a hitchhiker 20 years older, a professional felon who, in the course Why, 1 wondered, hadn’t of their cavorting together in a bum- equal time been given to the crime - drunk fortnight, once assaulted and the 1973 slaying of Spenkelink’s travel once sodomized Spenkelink.

ing companion - which I assumed was hideous. The hitchhiker was in due course found dead in a Tallahassee The first unwilling execution motel room of two shots, one fired at in a dozen years we exclude Gary close range. Gilmore’s willing execution in Utah in 1977 must have been the hideous work Two men were soon arrested, of a hideous man, hideously guilty. and both were charged with first-

degree murder. One was convicted - I talked to one David Spenkelink. The other was acquitted. Kendall, who most obligingly began to talk about the trial of John One took the witness stand - Spenketink. Spenkelink. The other didn’t.

I was deeply moved by the Spenkelink’s critically damag experience ing testimony was that he had told his codefendant, when heading into the Because, you see, it tran victim’s motel room, "If you hear a spires that: shot, come to Room 12."

1. Spenkelink did not have The jury took this as proof a history of pathological violence. of premeditation.

2. His guilt - of first- In fact, said Spenkelink, he degree murder - was not beyond a had entered the room to return to the reasonabIe doubt. victim the pistol left in Spenkelink’s car, Spenkelink having decided to part 3. And the idiosyncratic company. decision by then Gov. to issue a death warrant against When greeted violently, he

Spenkelink when he had to choose from testified, he fired - and killed - an a number of quite uncommon murderers aggressor in self-defense. His words against whom final death warrants had to his companion had been intended to yet to be issued suggested that the suggest that if there was shooting, the governor may intentionally have put companion should race to help his forward a flimsy victim to engage friend. public emotion against the reinstitution of capital punishment. Before the trial, the state of Florida, surveying the evidence, As it happened, it fell to offered Spenkelin k a second-degree Askew’s successor, Bob Graham, to murder rap if he would agree to plead make the decision whether to grant guilty. Spenkelink refused.

-10- Having been - convicted ‘of ROWU.S.A.DEATH what they call "Murder One," the court had the option of meting out the AS OF OCTOBER 23, 1979, TOTAL NUMBER OF toughest punishment this side of DEATH ROW INMATES KNOWN TO TIlE NAACP execution - 25 years in prison without LEGAL DEFENSE FUND: 556 possibility of parole - but went for the . Race:

The defense supplied copious Black 225 40.47% documentation from prison guards and Spanish Surname 22 3.96% wardens who had observed Spenkelink White 304 54.67% during earlier confinements. Native American 3 0.54% Oriental 1 0.18% This is a notoriously unsenti Unknown 1 0.18% mental breed, and they pleaded earnestly their conviction that Spenke Crime: Homicide link was not the kind to commit first- degree murder. Sex: Male 550 98.92% Female 6 1.08% It is ritual, at this point, to say that Gov. Graham was unmoved. DISPOSITIONS SINCE JULY, 1976

But unfair; perhaps he was Executions: 3 moved, but felt that any stay of Suicides: 4 execution would be interpreted as, in Death Sentences vacated as unconsti effect, a defiance of the entire social tutional: 505 movement to make certain moral, peno Convictions or sentences reversed logical and constitutional assertions - on other grounds: 194 namely that the return of capital Commutations: 4 punishment is a step toward the value society puts on human life rather than the reverse.

REVIEW BOOK two of the cases, "I had no difficulty Capital Murder, by David Crump and in deciding to ask the jury for the George Jacobs, Texian Press 1977. death penalty in these two cases. The circumstances of the crimes left me no At the beginning of this other choice." book, the authors tell us that they support the death penalty, "but we And there is no doubt that aren’t so confident as to think we have the crimes described were heinous and all the answers." Indeed. In fact, senseless. We have Kenneth Brock, inadvertently so, they raise as many first, who took a hostage during *a questions about the death penalty as 7-11 robbery, and in front of six they answer. police officers, executed him point blank prior to running into the woods. You see, Jacobs and Crump John Stiles Griffin broke into an are District Attorneys in Houston, apartment, tied two women up, one Texas. And they have tried a lot of with a coat hanger, and raped, death cases in that city. The idea of stabbed, slashed, and beat them to their book is to paint the scene of death. Ronald Clark O’Bryan put some of the most brutal that cyanide into a piece of Halloween one could imagine. As Crump stated of candy and placed it into his son’s

-11- mouth. He also gave the same candy under a death sentence. The other to five other children that HaIlowen four are in prison, awaiting parole, night. The idea was to collect in awaiting possible rehabilitation. No surance money after his son’s death. rational explanation can be offered as He even sang "Blessed Assurance" at to why four of these men should die his son’s funeral, prior to arrest. and four should live. And so it is The fourth case, that of Gerald that the arbitrariness condemned in Bodde, involved a kidnapping and Furman shines clearly through two brutal murder of an 81 year old prosecutors’ effort to uphold capital woman. The final case was the "Brady punishment. And in that way, and Bunch" case, involving four Mexican- perhps only that way, the book is Americans who went on a one-day worth reading. spree of armed robberies during which some five people died. All the mur ERNIE LEWIS ders were execution-style. The pro prietor of the store was forced to lie down on the floor, and a bullet was put into the back of his head. The Plotkin, Continued from Page 6 four en confessed to the murders at a press conference called by them. containing among other things, sample They were tried separately, and all cross-examination questions. But convicted. when these attorneys were observed in court, the researchers found that even The authors’ point in relat attorneys who had been specifically ing these crimes is that nothing short taught the method of aggressively of capital punishment will do "justice" challenging mental health experts’ to the cases. And the authors tell testimony remained reluctant actually their stories well, apparently leaving to take an affirmative adversarial out anything mitigating in either the stance in the courtroom. crimes or the criminals. They make their point effectively, on the surface. Paternalism, not lack of information, appears to be the root of the problem. Yet, below the surface, they do the Although attorneys will normally use cause they honor a distinct disservice. every means at their disposal to assist You see, Brock, O’Bryan and Bodde other clients especially those who can were sentenced to death. Griffin, who pay hefty fees to obtain even socially committed one of the most brutal questionable ends, once they make an crimes in recent history in Houston, individual judgment that a particular was not. client is "mentally ill," they seem less inclined to expend time and effort to More importantly, only one of the four represent that client’s interests and Brady Bunch was sentenced to death. defer, instead, to the judgment of the And the leader, the worst of the service providers. They tend to Bunch, Bernadino Sierra, plead guilty forget that it is the judge, and not to less than death after a mistrial. counsel, who has been entrusted with the ultimate decision. The authors explain these discrepancies by "weak juries", the These observations ‘are not intended to "technical laws of evidence," and other minimize the lawyer’s difficulty in reasons they seem to view as road representing this group of clients. blocks in the way of justic But the They are often hostile, uncooperative more important point is that only 4 out or non-communicative; their behavior of 8 of these "heinous murderers" are Continued, Page 13

-12- and appearance may seem bizarre However, "[b}ecause of the importance according to accepted societal stan of protecting the innocent and of dards. Overworked courts will put insuring that guilty pleas are a pro great pressure on attorneys to provide duct of free and intelligent choices," perfunctory representation in order to pleas of guilty coupled with claims of process the case speedily. Spending innocence "should not be accepted time for proper investigation and unless there is a factual basis for the interviewing is discouraged by the plea" nd "until the judge taking the abysmally low fees lawyers are usually plea has inquired into and sought to paid for their services in these situa resolve the conflict between the waiver tions. of trial and the claim of innocence." 91 S.Ct. at 167 n. 10. These problems are not insurmount able. But their resolution first re Consequently, the Alford decision quires a re-definiton of the lawyer’s clearly holds that it is constitutionally role in representing clients who are permissible for a state trial judge to alleged to be mentally ill. Lawyers accept a defendant’s plea of guilt even must realize that they can perform though that plea is accompanied by valuable functions in the commitment protestations of innocence and hence hearings by testing the adequacy of contains only a waiver of trial but no professional judgments by obtaining admission of guilt as long as there is a less restrictive alternatives to hos factual basis for the plea. pitalization and by generally focusing increased individual attention on their In Kentucky "it is not improper for an clients. Most importantly, they can attorney to influence a client to reach" prevent wrongful and unnecessary the decision to plead guilty "to escape deprivations of liberty through zealous possible greater punishment." Glass representation of persons entangled in v. Commonwealth, Ky., 474 S.W.2d complex legal processes. But until 400, 401 1972, citing Harris v. they shed their own paternalistic, Commonwealth, Ky., 456 S.W.2d 690 judgmental attitudes, they must con 1970, and North Carolina v. Alford, tinue to bear equal responsibility for supra. sins legally committed in the name of mental health. The Kentucky Supreme Court in Com monwealth v. Campbell, Ky., 415 S.W.2d 614 1967, discussed the propriety of a defense strategy in Ethics, Continued from Page 1 which a defendant entered a plea of guilty solely to obtain a lighter sen viewed "in light of the evidence tence and concluded that there was against him, which substantially "nothing in this record to indic!ate that negated his claim of innocence and the advice given [the defendanti by which further provided a means by his counsel was not proper and which the judge could test whether the sound." Id. at 616. The defense plea was being intelligently entered." attorney had made diligent effort to j.., 91 S.Ct. at 167. Because of "the discover the incriminating evidence strong factual basis for the plea demon that would be presented against his strated by the State and .lford’s client, and he was convinced the clearly expressed desire to enter it defendant stood no chance of beating despite his professed belief in his the charge. "As so often happens, a Innocence," the plea was held to be plea of guilty resulted in a lighter constitutionally proper. Id., 91 S.Ct. sentence than might have been im at 168. posed. To influence a defendant to accept this alternative is proper." Id.

Continued, Page 14

-13- Indeed, it is well recognizei in this to incriminate the defendant and pro jurisdiction that "plea-bargaihing in an vide a factual basis for the plea. effort to receive a lighter sentence than might be obtained by a full trial The United States Supreme Court in by jury in itself does not give rise to North Carolina v. Alford, supra, a claim of a denial of constitutional adopted the rationale of McCoy v. rights." Davis v. Commonwealth, United States, 363 F.2d 306, 308 Ky., 471 S.W.2d 740, 742 1971. The D.C. Cir. 1966, where the court validity of the guilty plea in Harris v. noted since "guilt, or the degree of Commonwealth, Ky., 456 S.W.2d 690 guilt, is at times uncertain and elu 1970, was upheld because "[un sive," caIn accused, though ‘believing short, the record fairly shows that the in or entertaining doubts respecting plea in this case was a bargain for a his innocence, might reasonably con lighter sentence in a case in which clude a jury would be convinced of his there is strong evidence against" the guilt and that he would fare better in defendant. Id. at 693. the sentence by pleading guilty."

The Am’rican Bar Association Project Of course, a defense attorney may on Standards for Criminal Justice in never support such a tactic unless his its work, Standards Relating to Pleas own independent investigation of the of Guilty 1968, states in Standard case convinces him that an objective 1.6 that: factual basis for his client’s plea of guilty actually exists. Notwithstanding the accep tance of a plea of guilty, the court should not enter a judgment upon such a plea without making such inquiry Note: To share your ethical as may satisfy it that there quandaries and quagmires with the is a factual basis of the other public defender attorneys across plea the state, mail your questions or comments to this column. However, the commentary to Standard 1 .6 explains: * *

If the trial judge is other wise satisfied that there is a REAL AND IMAGINARY DANGERS factual basis for the plea, it LURKING BEHIND A is not required that he call SUCCESSFUL APPEAL upon the defendant to make an unequivocal confession of To determine intelligently the advis guilt ability of appealing his conviction, the defendant must be made aware of the In a retrial situation, the defense may potential disadvantages which inhere in tender to the trial judge excerpts from a successful appeal. the transcript of the defendant’s previous trial in order to demonstrate In advising a convicted defendant of that there is a factual basis for the his right to a direct appeal, defense defendant’s plea of guilty even though counsel should explain that the the defendant does not admjt actual Supreme Court in Chaffin V. guilt. In other circumstances, the Stynchcombe, 412 U.S. 17, 93 S.Ct. defense might submit to the trial judge 1977, 36 L.Ed.2d 714 1973, specifi an affidavit of a prosecution witness cally held that the rendition of a which contained sufficient information Continued, Page 15

-14- higher sentence by a jury upon retrial While a more severe sentence may be is constitutionally permissible as long imposed at a new trial, a defendant as the jury is not informed of the who has secured a second trial may prior sentence and the second sentence not be prosecuted for an offense of is not otherwise shown to be a product which he was acquitted at his original of vindictiveness. In practice, the trial. Chaffin decision means that a defen dant who is convicted, for example, of In the situation where a defendant is first degree manslaughter under KRS originally charged with a greater 507.030 and receives a sentence of offense such as murder and at his imprisonment for ten years should be initial trial the jury convicts him of a informed that if he appeals and suc lesser included offense such as first ceeds in obtaining a new trial, he degree manslaughter, the conviction could be reconvicted at his second on the lesser charge operates as an trial and sentenced to a maximum acquittal on the greater charge. punishment of confinement for twenty Green v. United States, 355 U.S. 184, years. 78 S.Ct. 221, 2 L.Ed.2d 199 1957. Thus, if the defendant appeals his The Chaffin decision, however, did not conviction of the lesser charge and erode the constitutional principle that obtains a new trial, the Commonwealth vindictiveness against an accused for may not prosecute him on any offenses having successfully overturned his greater than the crime of which he was conviction has no place in the resen convicted. Price v. Georgia, 398 U.S. tencing process, whether by judge or 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 jury. North Carolina v. Pearce, 395 1970; Owsley v. Commonwealth, Ky., U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 458 S.W.2d 457 1970; Gunter v. 656 1969. Thus, at a retrial in Commonwealth, Ky., 576 S.W.2d 518 which a judge determines the sentence, 1979. such as where the defendant enters a plea of guilty or waives a jury trial, The defendant must be advised that in the judge may not impose a harsher the event the appellate court reverses sentence without placing in the record his conviction for an offense on the his reasons for the increase and those basis that the evidence at trial was reasons must be based upon objective legally insufficient to prove the information concerning identifiable charge, the Double Jeopardy Clause of conduct on the part of the defendant the federal constitution precludes a which occurred subsequent to the retrial on that charge. Burks v. original sentencing. Id. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 1978; Greene v. A trial judge’s imposition, on retrial Massey, 437 U.S. 19, 98 S.Ct. 2151, following appeal, of consecutive sen 57 L.Ed.2d 15 1978. The 1978 tences would constitute a violation of decisions in Burks and Greene, both the Pearce rule where the sentences, supra, implicitly overruled as uncon as originally imposed, were to run stitutional Hodges v. Commonwealth, concurrently unless the record con Ky., 473 S.W.2d 811 1971, which tained a showing of identifiable con held the contrary in this jurisdiction. duct on the part of the defendant which would justify the increased severity of the sentence. Barnes v. United States, 419 F.2d 753 D.C. Cir. 1969; State v. Sterling, Or. App., 537 P.2d 578 1975.

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