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The Advocate Journal of Criminal Justice Education & Research Kentucky Department of Public Advocacy Volume 26, Issue No. 1 January 2004 NO EXCEPTIONS A CAMPAIGN TO GUARANTEE A FAIR JUSTICE SYSTEM FOR ALL HOW MANY GO UNREPRESENTED AND AT WHAT COST? • IS MICROSCOPIC HAIR COMPARISON DEPENDABLE?: A REVIEW OF JOHNSON V. COMMONWEALTH • IS VICTIM IMPACT EVIDENCE ADMISSIBLE IN KY? • HIPAA V. KASPER • DEFENDER CONFLICTS OF INTEREST: BALANCING ETHICAL, LEGAL, AND FISCAL REALITIES MEENA MOHANTY, OUR FEATURED DEFENDER KATIE WOOD ELECTED PRESIDENT OF KY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS JEFFERSON CO. METRO DEFENDERS RECEIVE NLADA AWARD THE ADVOCATE Volume 26, No. 1 January 2004 DPA ON THE WEB DPA Home Page http://dpa.ky.gov/ Table of Contents DPA Education http://dpa.ky.gov/train/train.htm DPA Employment Opportunities: http://dpa.ky.gov/career.htm How to Deal with the Denial of Counsel in Misdemeanor The Advocate (since May 1998): Cases Post-Shelton -- Robert C. Boruchowitz ................... 4 http://dpa.state.ky.us/library/advocate/default.htm Johnson v. Commonwealth: How Dependable is Legislative Update: Identification Microscopic Hair Comparison? -- Micheal J. Saks ..................................................................14 http://dpa.state.ky.us/library/legupd/default.html Defender Annual Caseload Report: Victim Impact Evidence is Not Admissible in Kentucky Death Penalty Trials -- Margaret F. Case..........................20 http://dpa.state.ky.us/library/caseload.html Please send suggestions or comments to DPA Webmaster HIPAA Vs. KASPER in a Preemption Challenge: 100 Fair Oaks Lane, Frankfort, 40601 The Fix Is In -- Bryan Underwood........................................23 or [email protected] Providing Conflict Counsel to Kentucky Indigent ********************************** Criminal Defendants: Balancing Ethical, Legal, DPA’S PHONE EXTENSIONS and Fiscal Realities to Provide Quality Representation During normal business hours (8:30a.m. - 5:00p.m.) DPA’s Cen- -- Ed Monahan .........................................................................25 tral Office telephones are answered by our receptionist, Alice Hudson, with callers directed to individuals or their voicemail What’s in a Name?: Theft of Identity and Giving False boxes. Outside normal business hours, an automated phone atten- Information to a Peace Officer with the Sample Motion dant directs calls made to the primary number, (502) 564-8006. -- Robert Stephens, Jr. ..........................................................34 For calls answered by the automated attendant, to access the employee directory, callers may press “9.” Listed below are ex- Bill Seabold retires from KY Corrections and as tension numbers and names for the major sections of DPA. Make Warden at the Kentucky State Reformatory .....................37 note of the extension number(s) you frequently call — this will aid our receptionist’s routing of calls and expedite your process Meena Mohanty, In the Spotlight -- Patti Heying ............41 through the automated attendant. Louisville Metro Public Defender’s Office Wins the Appeals - Renee Cummins #138 2003 Clara Shortridge Foltz Award ...................................42 Capital Appeals - Michelle Crickmer #134 Capital Post Conviction (502) 564-3948 Recruitment -- Al Adams .....................................................43 Capital Trials - Joy Vasser #131 Computers - Ann Harris #130/#213 Appellate Case Review -- Euva D. May ................................44 Contract Payments - Ruth Schiller #188 Deputy Public Advocate - Patti Heying #236 6th Circuit Review -- Emily Holt ........................................46 Education - Patti Heying #236 Frankfort Trial Office (502) 564-7204 Plain View -- Ernie Lewis ....................................................52 General Counsel - Lisa Blevins #294 Capital Case Review -- Susan Jackson Baliet ................57 Assistant Director - Al Adams #116 Post-Trial Division - Joe Hood #279 Mental Health Issues: The Heart of the Matter Juvenile Dispositional Branch #220 -- Dick Burr ...........................................................................59 Law Operations - Karen Scales #111 Library - Will Geeslin #120 More tips to consider in the representation of girls: Payroll/Benefits - Beth Roark #136 Part II of a Series on the Representation of Girl Clients Personnel - Cheree Goodrich #114 -- Londa Adkins and Tom Collins .......................................62 Post Conviction (502) 564-3948 Practice Corner -- Misty Dugger ......................................65 Properties - Larry Carey #218 Protection & Advocacy (502) 564-2967 or #276 Commutation of Stanford’s Death Sentence Mirrors Public Advocate - Debbie Garrison #108 Kentuckians Desire to Not Kill 16 And 17 Year Old Kids Recruiting - Al Adams #116 ...................................................................................................66 Travel Vouchers - Ruth Schiller #188 Trial Division - Sherri Johnson #165 Katie Wood is Elected KACDL President ..........................67 2 THE ADVOCATE Volume 26, No. 1 January 2004 The Advocate: From the Editor... Ky DPA’s Journal of Criminal Justice Seldom has The Advocate contained such a powerful lineup of Education and Research articles. The Advocate provides education and research for persons serv- The No Exceptions Campaign. The public defense crisis in ing indigent clients in order to improve client representation and America is a serious nationwide problem – there is not one insure fair process and reliable results for those whose life or state that fully delivers on the promise of the Gideon ruling. liberty is at risk. It educates criminal justice professionals and Many states fall woefully short. The American Bar Association the public on defender work, mission and values. has identified 10 principles that, if implemented by states, would strengthen public defense in America. The “No Exceptions” The Advocate is a bi-monthly (January, March, May, July, Sep- campaign is based on these principles and aims to remind each tember, November) publication of the Department of Public Ad- state of its responsibility to fulfill Gideon’s promise. The Advo- vocacy, an independent agency within the Public Protection and cate begins in this issue the No Exceptions Campaign with a Regulation Cabinet. Opinions expressed in articles are those of focus on the unrepresented. To learn more about the campaign, the authors and do not necessarily represent the views of DPA. visit www.NoExceptions.org. The Advocate welcomes correspondence on subjects covered by it. If you have an article our readers will find of interest, type a Ky’s Unrepresented. In 1996, The Advocate addressed the many short outline or general description and send it to the Editor. Kentuckians who go unrepresented. Are we at a different place Copyright © 2004, Kentucky Department of Public Advocacy. after these many years? What is the command of Shelton? Bob All rights reserved. Permission for reproduction is granted pro- Boruchowitz of the state of Washington recently presented on vided credit is given to the author and DPA and a copy of the these issues to public defenders nationally. His rendition of reproduction is sent to The Advocate. Permission for reproduc- Washington’s realities mirrors Ky’s. KY defenders offer com- tion of separately copyrighted articles must be obtained from ment on the ramifications in KY of Bob’s analysis. We had that copyright holder. work to do seven years ago. It remains. We have an opportu- nity to address it. EDITORS: Hair comparison. Modern Scientific Evidence: The Law and Edward C. Monahan, Editor: 1984 – present Science of Expert testimony (2002) is one of the country’s lead- Erwin W. Lewis, Editor: 1978-1983 ing scientific references in the law. Michael Saks, one of the Lisa Blevins, Graphics, Design, Layout authors of that scientific work, offers in depth analysis of the lack of dependability of hair comparisons. Defense practitio- Contributing Editors: ners take note. Rebecca DiLoreto – Juvenile Law Misty Dugger – Practice Corner Victim Impact evidence is thought by some to be clearly ad- Shelly R. Fears/Euva D. May -Ky Caselaw Review missible in capital cases. Margaret Case examines that assump- Dan Goyette – Ethics tion and undermines it. Emily Holt – 6th Circuit Review Ernie Lewis – Plain View HIPPA and KASPER present complex and far reaching reali- Susan Balliet – Capital Case Review ties. Individual constitutional guarantees are pitted against the Jeff Sherr - District Court public’s desire for safety. Where is the constitutional and commonsense lines? Conflicts. We have conflicts aplenty in our lives. They exist in the law and in defender cases. Ky’s statewide public defender program has a deliberate system for managing conflicts in a Department of Public Advocacy way that accounts for the legal, ethical and fiscal realities. This Education & Development system and its commonsense rationale are set out in this issue. 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 KACDL. Katie Wood has assumed the presidency of the KY Tel: (502) 564-8006, ext. 294; Fax: (502) 564-7890 Association of Criminal Defense Lawyers. She brings substan- E-mail: [email protected] tial criminal defense experience to this vital leadership posi- Paid for by State Funds. KRS 57.375 tion. Ed Monahan, Editor 3 THE ADVOCATE Volume 26, No. 1 January 2004 HOW TO DEAL WITH THE DENIAL OF COUNSEL IN MISDEMEANOR CASES POST-SHELTON This article is published with permission of the Washington