KACDL NEWS May 2018 in This Issue

KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians KACDL NEWS May 2018 In this issue:

• President Remarks: David Ward

• Legislative News: Rebecca DiLoreto

• Amicus Committee Activity: J. David Niehaus

• Educating Criminal Defense Practitioners Part 2: Where is the Evidence? An Investigators Perspective: Joey Stidham

• Member News and Information

• Executive Director’s Column: Donna Brown

President Remarks President’s Page

Dear Members,

Since the Kentucky Legislature convened in regular session on January 2nd of this year we have seen the passage of a number of pieces of legislation of particular interest to our members and clients. These include bills to put the question of modifying our Constitution before the voters in a manner almost guaranteed to be adopted such that “victim’s” lawyers will have standing to litigate in criminal cases, to increase the penalties and broaden the definition of what it means to be in a “gang”, and allowing statements made outside of court by child witnesses in sexual crime cases to be admissible for the truth of the matter asserted. These are but a few pieces of consequential legislation, but they are obviously significant.

Challenging this legislation in our Trial and Appellate Courts is of critical importance. As of the writing of this message, efforts are currently underway to attempt to convince the Governor not to sign the gang legislation. Plans are also underway to challenge whether what is known as Marsy’s Law meets the constitutional requirements for a matter to be put to the voters. It appears the legislation concerning the utilization of unsworn statements in sexual abuse cases will have to await challenge when it is attempted to be utilized by the prosecution in court. So be it. When it is used we will be there to aid in the fight.

When you are confronted with the results of this legislation in the Trial Courts, you are not alone. As an Association we rely upon each other to not only report to our community instances where the impact of this legislation is being felt, but also to provide assistance to each other when challenging these laws. The expertise and experience available through our network of members is enormous and an invaluable resource to both the sole practitioner and the member of a large firm. We’re here to help each other, whether it simply be through a response to a listserv question, co-counseling a case, or submitting an amicus brief.

Statutes change, common law evolves, and even our Constitution can be amended. Justice, however, remains timeless no matter the political circumstances, the occupants of our legislature or governor’s office, or the Judges who come and go. It is only through our shared efforts – reaching out for help when we need it and providing help when asked, that we can ensure a just and fair future for our clients and our broader society. Thank you for what you do.

David M. Ward President, Kentucky Association of Criminal Defense Lawyers

David Ward, President-Elect. David Ward was born in 1966 in Ashland, Kentucky, David attended the University of Kentucky where he earned his BHS, with distinction. Upon graduation, he attended the Univer- sity of Minnesota where he earned his MHA before graduating from the Ohio State University College of Law with a Juris Doctorate. Ward returned to his Kentucky after serving on active duty in the United States Army Judge Advocate General’s Corps where he continues to serve today as a Colonel and Staff Judge Advocate for the 63rd Regional Support Command in Mountain View, California. Twice recalled to active duty to serve 14 months with the 101st Airborne Division in Iraq with additional duties in Kuwait and Turkey and 12 months as the Deputy Staff Judge Advocate at Fort Drum, New York. After practicing Kentucky criminal law as a Public Advocate, David joined White, McCann & Stewart, PLLC, in 2000 and became a partner in 2005. He serves on the board of Clark County Community Services and is a past President of the Clark County Bar Association.

You may reach him at [email protected]

Angela Rea, Editor [email protected] KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians

KACDL OFFICERS

Board of Directors & Standing Committee Chairs

Officers* Directors-at-Large Directors ex officio Directors Emeritus

Jerry J. Cox (A) Amy I. Hannah* William E. Johnson

President Karen Faulkner (A) R. Tucker Richardson W. Robert Lotz

David M. Ward Frank Mascagni, III (A) David Hoskins Brad Coffman

[email protected] Rachael Neugent (A) Larry D. Simon Bette J. Niemi

Benham Sims (A) J. Guthrie True Russell J. Baldani

President-Elect Angela Rea (A) William G. Deatherage Samuel Manly

B. Scott West Ernie Lewis Mark A. Bubenzer

Brad Clark (B) Edward C. Monahan

Frank E. Haddad, Jr. First Vice-President Brent Cox (B) Daniel T. Goyette (d.)

Angela Rea Julie M. Kaelin (B) Charles Coy (d.)

Ryan Vantrease (B) Mark Stanziano (d.)

Executive Director Patrick J. Renn (B)

Donna Brown Wilbur M. Zevely (B)

[email protected]

Legislative Agent KY Public Advocate

Rebecca DiLoreto Damon Preston

KACDL Standing Committees and Chairs*

Amicus Curiae [email protected] David Niehaus Lawyers Strike Force [email protected] Russell J. Baldani Rules [email protected] William G. Deatherage

Education [email protected] B. Scott West

DUI (Sub Committee of Education) [email protected] Rachael Neugent

Finance [email protected] Jerry J. Cox Legislative [email protected] Rebecca DiLoreto Membership and Governance [email protected] Daniel T. Goyette

Committees: To express interest, please login to your online account here. Under “My Com- mittees and Groups” click “join” and the Committee Chair will be in contact to discuss any open positions and/or approve your membership.

*Denotes members of the Executive Committee

To view online Calendar, please click here Remember, KACDL Members are ALWAYS welcome at Board Meetings! Our Next Board Meeting is scheduled for: Northern Kentucky Date and Time TBD

Angela Rea, Editor [email protected] KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians

LEGISLATIVE NEWS, Advocating Key Liberty Issues

Rebecca Ballard DiLoreto, KACDL’s Legislative Agent, can be reached at [email protected] or [email protected] (859) 327-3990

Since the last Legislative Report, KACDL worked on the following bills: SB 3, 16, 18, 19, 30, 37, 46, 54, 87, 107, 57, 109, 133, 137, 171, 172, 173, 174, 181, 185, 210, 230, 240, 242, 255, 258 HB 101,28, 60, 62, 83, 126, 155, 169, 316, 330, 396, 415. Though the session ended on April 20th with a concurrence day, KACDL was vigorously involved up through the veto days concluding with Sine Die and then to date with House Bill 169, the gang bill.

The theme of this session’s criminal justice legislation was lay it on thick and heavy. Bill after bill was designed to undo any ameliorative impact of prior criminal justice reform, to increase the class of punishment and the range of penalty for any offenses against law enforcement and to make the job of law enforcement easier. The Fraternal Order of Police for Louisville and Lexington were strong in number and paid lobbyists to push their agenda to make the job of law enforcement easier and to remove the burden on the state in its effort to de- prive persons of their civil liberties. ACLU was a constant partner with KACDL in testifying against these bills. Additionally, we brought in ministers, civil rights leaders and directors of such staid organizations like the Urban League to meet with legislators and testify against these bills.

Representatives and Senators who respected the role of defense counsel and advocated against much of this legislation, trying to bring fairness into the process, included Senator Robin Webb, Senator Perry Clark, Senator Ray Jones and Senator Julie Raque Adams, Representatives Jason Nemes, Diane St. Onge, Jason Petrie, Kimberly Poore Moser, Angie Hatton and Jeff Hoover. All of the Demo- crats in the House stood with us against HB 169 and in support of a much fairer set of amendments to that so called “Gang Prevention” bill. Representative Ja- son Nemes wrote the amendments and received direct input from KACDL and the Public Advocate as well as from religious and civil rights leaders. The sponsor of the bill, Representative Benvenuti, called us sinful for presenting testimony about the racially disparate impact of such legislation.

Criminal Justice Reform was presented in two bills, one sponsored by Rep. Jason Nemes, the other sponsored primarily by Sen. Julie Raque Adams. Sen. Adams sponsored SB 133 which primarily focused on the health of women prisoners. She received a scathing attack by the Senate Health and Welfare Committee, but ultimately prevailed and was treated more respectfully before the House Judici- ary. The bill takes some steps to protect incarcerated women who are pregnant. Rep. Nemes’s bill HB 396 was the bill born of the most recent work of the CJPAC committee. Former KACDL President Amy Hannah served on that committee. The bill would have established an administrative parole process and offered more treatment and a reduction in service of sentence to a wide set of offend- ers. It was posted in the House Judiciary at the end of February but was never even given a hearing.

We were surprised by the easy passage of SB 137 which protects any child 12 years of age or less from having to testify in a courtroom even though they are the source of the accusations against our clients. Damon Preston and KACDL’s Legislative Agent testified against the bill setting forth why the Supreme Court’s committee voted against the bill and how this Kentucky version went beyond what the US Supreme Court stated was permissible in Ohio v. Roberts and vio- lated the Kentucky Constitution by usurping the powers of the Court to approve Kentucky’s Rules of Evidence. We expect a lot of litigation challenging this legislation.

As previously reported SB 3 and 30, Kentucky’s version of “Marsy’s Law,” passed with great strength in the House and Senate. KACDL appellate jurist, David Niehaus is planning to challenge the bill. He and R.Kenyon Meyer are involved in consultation on next steps to file a court action challenging implementation with assistance from the Legislative Chair, Hon. Tim Arnold of DPA and Hon. Heather Gatnarek of the ACLU.

The KY SMART on Crime Coalition plans to reconvene its members (of which KACDL is one) in the next four weeks to review what occurred this session and determine how to build momentum for criminal justice reform in the current environment.

Rebecca Ballard DiLoreto

Please familiarize yourself with the ADVOCACY TAB before the next session. Please feel free to contact our Legislative Agent, Rebecca Ballard DiLoreto at [email protected] to become involved in our legislative advocacy or Angelashare yourRea, ideas Editor and [email protected] concerns. KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians

KACDL TAKING ACTION, Advancing Justice

Amicus Curiae Committee

David Niehaus, KACDL Amicus Curiae Chair or Josh Reho, Vice Chair, can be reached at [email protected]

MAJOR ACTIVITIES SINCE LAST REPORT:

The Amicus Committee has dealt with four matters in the last few weeks.

(1) We received a request from a group seeking to file an amicus in support of certiorari arising from a New York Case, People v. Garvin, 88 N. E. 3d 319 (NY, 2017). After inquiry, it appeared that our participation would have added little to the brief because the issue is whether Apprendi v. New Jersey prohibits judge de- termination of facts necessary to impose persistent felony offender status. This is not an issue under KRS 532.080, KRS 500.070(2) and Section 11 of the Kentucky Constitution, so we did not participate. The brief was filed on April 19th

(2) In CHFS v. RS, 2017-SC-0587- DG, we received documents in a case involving the effect of sex offender status on the right to custody and nurture of natural children under KRS Chapter 620. Because it is a closed file matter from Family Court, there was some delay in getting the documents necessary to determine if a brief would be filed. The Committee therefore filed a motion to extend the time for filing an amicus brief. The brief on behalf of KACDL is being drafted and must be filed no later than May 20, 2018.

(3) We received the proposed amicus brief in Commonwealth v. Bredhold, 2017- SC-0436, the Fayette County death penalty case for consideration. Copies were forwarded to the Committee for review. Pursuant to CR 76.12(7), the amicus brief is due May 30th. If approved, KACDL will join in the well-written brief by the Na- tional Association for Public Defense and other groups.

(4) A request in Lawrence v. Bingham Greenbaum Doll, 2017-SC-0531-DG was received. After careful review of the Appellant’s Brief and hands-on review of the record on appeal, the Committee (with one member recused) voted not to participate. It is an attorney malpractice case in which it appears that discretionary review was granted to resolve a question left open in an earlier case, whether a per- son convicted of a crime must show “actual innocence” or “legal innocence” (reversal on appeal, vacation by post-conviction motion) to maintain the suit. The Committee did not view this subject as falling within the mission of KACDL as outlined on the website and in the By Laws, and therefore declined to participate in the case.

AMICUS BRIEF FILINGS are now available online.

Angela Rea, Editor [email protected] KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians

Educating Criminal Defense Practitioners

Brian Scott West, KACDL Education Chair, can be reached at [email protected] or [email protected]

MARK YOUR CALENDARS FOR KACDL EDUCA- Need CLE creditTION before July 1st? We have your answer!

4.0 Tech Credits Available via On Demand: Need CLE credit before July 1st? Do I Have a Conflict? (And if so, What Do I Do?) 1 Hr Ethics We have your answer! Brian Scott West, Department of Public Advocacy General Counsel and KACDL President Elect and Education Committee Chair, Frankfort, KY

Don’t Break Your Sword Defending the Castle 1 Hr

Angela 2017 Rea, Legislative Louisville Metro Update Public and Defender Criminal and KACDL Law LitigationVice President Program-Summer Regional Video Seminar Series NOW AVAILABLE ON DEMAND until June 30th via EVENTS tab 4.0 Live Credits Available via a locationREGISTER near $20you! REGISTER

New Developments in Pretrial Release Litigation 1 Hr Ray Ibarra, Department of Public Advocacy, Cynthiana, KY

Full Package: Conflicts, Jury Instructions, PretrialBROCHURE Release, 2017 Legislative Update 4 Hr REGISTER ONLINE

4.0 Fall Live DUI Defense Credits SeminarAvailable At A Location Near You! Date2018 TBD, Legislative Northern Update KY University, and Criminal Chase Law LawLitigation School

Program-Summer Regional Video SeminarMORE INFO Series

The Ethics of Digital Marketing for Attorneys, 1 HR Bradley Clark, Clark Law, PLLC and KACDL Director at Large, Lexington, KY

2018 Legislative Update, 1 HR RebeccaAnnual DiLoreto, Conference KACDL Legislative and Agent Criminal & Board Member,Defense Lexington, Seminar KY

WhatFriday, State October Practitioners 26, 2018 Need into KnowLouisville, about KYFederal Law, 1 HR David Hoskins, Hoskins, Hill & Hill, PLLC and KACDL Dir. Ex Officio, Corbin, KY

MORE INFO Miranda in Kentucky: How the Commonwealth Has Interpreted the Right to Remain Silent, 1 HR Brian Scott West, Department of Public Advocacy General Counsel and KACDL Presi- dent Elect andFor Education more Committee information Chair, Frankfort regarding, KY our events, please access our BROCHURE REGISTER $55 Event Calendar here

Angela Rea, Editor [email protected] KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians

MARK YOUR CALENDARS FOR FUTURE KACDL EDUCATION

Fall DUI Defense Seminar

MORE INFO

Annual Conference and Criminal Defense Seminar

MORE INFO

For more information regarding our

events, please access our

Event Calendar here

Angela Rea, Editor [email protected] KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians

Part 2: Where is the evidence? An Investigator’s Perspective The Second Part of a Continuing Series

Material Provided by KACDL Member Joey Stidham of Stidham Reconstruction and Investigation, LLC

Dash Cameras and Body Cameras:

As a trooper on the scene of a bad situation, I was always thankful to see help arrive despite who that help may be. It may be the sheriff’s office constables, or, because of where I worked, officers from WV or VA. I say this, so you realize it is very important for you to identify who was on your scene and to know the policies of that agency. Bowling Green PD, Louisville Metro PD, Lexington PD, most University PDs, as well as many others, have policies requiring body cameras that are worn and operated all the time the officer is on scene. While the KSP does not have dash cams or body cams on each of their troopers, there very well may be video and audio of what was occurring on your scene from other agencies and or individuals not listed in your case report. The KSP Policy for photographs and videos, when they exist, is OM- B-3. Request data from dash and body cameras from EVERY agency and/or individual on the scene.

Photographs:

We routinely have attorneys retain us and send us printed copies of photographs or PDF copies of photographs that the Commonwealth Attorney has provided. Never accept this. You need the photographs in their original digital form because you need the meta-data. The photograph below was taken by the police at a crime scene. Let me walk you through the hidden data:

Click on the upper right corner of the window which is three dots as depict- ed below and a drop box will open:

Angela Rea, Editor [email protected] KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians

Then click on file info

Now you have the date, time, devise used to take the photograph, and the sequence number of the photograph. If an officer uses a cell phone to take these photographs it is discovered here. If photographs are deleted, you will identify this from the sequence numbers, but only if you have copies of the original digital files.

Shelly Rice, our crime scene reconstructionist, has recently completed a case for Attorney Bill Maddox wherein she identified that some of the Medical Examiner’s photographs were missing. She and Mr. Maddox went to interview the Medical Examiner. During the interview the M.E. gave them a complete set of photographs, including the missing photos. These missing photographs contained photos of some black hairs the M.E. collected from the deceased’s hand. One of them was the evidence bag that contained the hair in the custody of the detectives. This evidence then was summarily dis- carded by the detectives. Mr. Maddox’s client had grey hair, not black. I tell you this to identify why this seeming minute detail can be a key piece of evidence. Request photographs in their original data form, not simply copies.

Other articles in this series will appear in future KACDL newsletters. They will address additional issues that are important to thorough representation of defendants in criminal cases.

To access a copy of the KSP Policy Handbook, please visit the Document Re- source Library found on the KACDL website under Resources: Members Section. Log in required.

Angela Rea, Editor [email protected] KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians

Member News and Information

Important News and Updates

You, Your Client, and Mental Health Study: If you are 18 years and older and currently are or previously have been a licensed attorney in the United States practicing criminal defense, you are invited to participate in this study conducted by Alexandra Michelin, a Clinical Psychology doctoral student at Pa- cific University who is currently conducting dissertation research under the supervision of Jennifer R. Clark, PsyD, Associate Pro- fessor. The project explores criminal defense attorneys’ experienc- es with mental health training and with defendants with mental ill- ness. We hope that you will participate in this research project, as it will be beneficial in understanding relevant components of mental health training for criminal defense attorneys and in guiding future directions for training. Survey responses are anonymous, and your participation is volun- tary. You may skip any question that you do not wish to answer, and you may discontinue at any time. It will take approximately 10- 15 minutes to fill out the questionnaire. The first page of the survey explains the research study and your part in it. If you are willing to participate in this study, please click on the following link: https://pacificu.co1.qualtrics.com/jfe/form/ SV_ezCsOwakqq3Jamh Should you have any questions about this research project, please feel free to contact Alexandra Michelin at [email protected].

We now have a website user guide. To learn how to navigate our tech world, please click here to access an easy to follow guide.

SCHOLARSHIP OPPORTUNITIES

Are you a young defender or do you know a young defender who wants to be a member of KACDL? We have sponsorships available.

Get a Young Defender Scholarship Application here.

New Members

Please welcome the following new members:

Adam Meyer , Winchester Ashley Michael, Louisville

Leah Mason, Lexington Timothy Arnold, Frankfort

Richard Lawniczak, Lexington Neil Borders, Prestonburg

Davis Tyler, Shelbyville Greta Noe, Elizabethtown

Christine Madjar, Frankfort Robert Poole, Covington

Dodd Dixon, Winchester Randy O’Neal, Richmond

William Melton, Hazard Jodie Ganote, Cincinnati

Do you have an intern, friend, or family member graduating law school? Give that graduating law student a gift of KACDL membership! Law students can join for one year at a rate of $25 and membership includes FREE CLE registrations! Get a member application here.

Angela Rea, Editor [email protected] KACDL: Advocating Key Liberty Issues; Educating Criminal Defense Practitioners; Advancing Justice for Kentuckians

EXECUTIVE DIRECTOR’S COLUMN

Greeting Members!

KACDL and its committees have been very busy. Our legislative agent, Rebecca DiLoreto has worked tirelessly lobby- ing for the interest of not only you but also for Kentucky Citi- zens. The Amicus Curiae Committee has addressed several items and our Strike Force Committee had to act quickly to deal with an issue affecting one of our members. Our Edu- cation and DUI Committee brought forth an excellent and 5 star rated DUI Defense Seminar. If you missed it, you missed an excellent opportunity to learn from seasoned DUI Trial lawyers. The good news is, we are offering another DUI De- fense course again this fall at the Northern Kentucky Chase Law School. Please be on the lookout for more upcoming information, including the date and time.

Need more CLE credits to meet your CLE requirement before the June 30th deadline? The KACDL Education Committee has your answer. Please click here to access our event page, you can download on demand courses or get registered for our “Live” Summer Video Seminars being held at a location near you in June.

Our Annual Conference Chair, Larry Simon along with the help of KACDL President, David Ward, have put to- gether a fabulous forensic expert filled presenter list for our Annual Conference. Go ahead and mark your calendar for Friday, October 26, 2018 because you do not want to miss this one!

Last, I want to say Thank You to all our members and the KACDL Board for your continued commitment to KACDL. I continue to be amazed by the amount of time, compassion and talents you devote to helping others.

Humbly serving you,

Donna Brown KACDL Contact Information: Donna Brown, Executive Director Email: [email protected] (502) 594-1375 P.O. Box 326 Hebron, KY 41048

KACDL is a 501 (C)(6) non profit and as such relies deeply on your donations. Please help us continue our mission.

Donate to KACDL's General Fund Thank You to DONATE NOW Donate those that have donated!

Sponsor a Young Defender Sponsor a Young Defender today! Your donation is 100% tax

DONATE NOW deductible and will support a Young De- fender desiring to join our organization. Regular Young Defender Membership rate is $50 per year for Public and $75 per year for Private.

Angela Rea, Editor [email protected]