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C THE ADVOCATE

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Illustration by Mike Reedy ANGER AND AGGRESSION

Volume 12, Number 4 June, 1990 ,..,,.,...... ,. Release...... ,...... -......

FROM THE EDITOR IN TillS iSSUE

Anger and Aggression "Aggression influences lives as much as love and friendship, thought and inspira lion, or nutrition and sleep," according to FEATURES Michael McGuire, M.D. and Alfonso Tm, M.D. See Aggression, Chapter 3.4, Comprehensive Textbook of Psychiatry V 1989. One of Webster’s definitions for "... hostile, injurious, or aggression is RELATIONSHIP BETWEEN ANGER AND AGGRESSION ...... 44 destructive behavior or outlook especiafly THE when caused by frustration." DAVID R. STEELE, KENTON CO. ROSTER PD. .._....3 How is aggression linked to anger? How do anger and aggression explain criminal behavior? These important issues are ex RACE & FUNDING, LETTERS TO THE EDITOR __4 plored in an extraordinarily enlightening article by LaneVeltkaxnp, MSW andJohn DPA LEGISLATIVE FUNDING D. Ranseen, Ph.D.

Law Schools and Public Defenders KENTUCKY’S 3 LAW SCHOOLS, INTERVIEW WITH DEANS...... 8 Whydo sofewlaw graduates desire public defender careers? How can law schools NATIONAL ASSOCIATION FOR PUBLIC INTEREST LAW...... 12 help Kentucky’s public defender efforts? Kentucky’s 3 law school deans give us their thoughts this issue. KBA PUBLIC INTEREST LAW SECTION ...... -.

DPA Funding NATIONAL LEGAL AID AND DEFENDER ASSOCIATION....,,.. 16 DPA has received additional funding but not nearly what it needs. Bill Jones, chair RACIAl. BIA.S ...... n,...... 18 of the Public Advocacy Commission, re lates thedetails. The 1990 Legislature has granted DPA substantially better starting ALTERNATIVE SENTENCING FUNDED BY LEGISLATURE...... 21 salaries, $21,600, which is up from $16,600. Yet, even with this verysubstan tial increase, our starting salary is the lowest of the 7 surrounding states. REGULAR COLUMNS

TheAdvocate is abi-monthly publication othe DepartmentofPublicAdvocacy,auindcpcndeil agency withinthe Public Prutectionand Regula tion Cabinet for administrative purposes. West’s Review ... _._...... Opinions expressed in articles are those of the Post-Conviction: Campbell County Jail authors and do not necessarily reseaut the views of DPA. The Advocate welcomes cor Death Penalty: 1990 Legislation Execution of Mentally Retarded ... 30 respondence on subjects covered by it. If yon Disirict Court: Suspension of Driving Privileges ,...... , 34 have an article our readers will find of iutcrcst, Sixth type a ihort outline or gencral description end Circuit...... ,...... send itto the attention ofthe Editor. Evidence: Kentucky’s New Evidence Code, Part 2 Edward C. Monahan, Editor 1984-Present Erwin W. Lewis, Editor 1978-1983 CrisBrown, ManagingEditor TRIAL TIPS Contributing Editors

Unds K. West Barbara Holthaus Wests Renew Jwenl. Law Allison Conneuy Donna Boyce Po.t.Convlction 6th CiajkHighghla Man-Made Disaster: Robert Harris...... ,,,.,....,...... 47 Neal Walk.r Ernie Lewis Habeas Corpus Reform ...... Death Penalty Plain View Dan Goyette Rob Riley Morgan County l’rison ... C, Ethics in the Trenches David Niehaus Dave Norat Cameras in the Courtroom .,.,,.,. ,...... Evidence Ask Conedions Ask Corrections ...... ,

Depsrtm.nt of Public Advocacy 1284 Louisvtle Road Frwikfoqt. Kentucky40601 502 564-8006 BOOK REVIEWS: Treatment of Psychiatric Disorders 58 FAX 4502564-3949 Kentucky Practice 61 Printed with Stat. Funds KRS 57.375 Legal Negotiations ...... _...... 62

June l990iTheAdvocate 2 THE ADVOCATE FEATURES

David R. Steele

During all but a brief portion of the period several versions of the facts. It is impor MONEY/RESOURCES since his admission to the Kentucky bar in tant forthe attorney to explainto his client "necessary legal service chasing 1973, DavidRandSteele, a 1973 graduate of clearly what he’s charged with and what too littlefunding." theUniversity ofCincinnati School ofLaw, has the Commonwealth Attorney can put on beena roster public defender in Kenton Coon to prove his case. It is also important for the attorney to explain to the client, that Public Defender funding has been a sig Hetook sometimeawaywhenhe served as an he, as an officer of the court, has respon nificantandnewswoi-thyissueinNorthern Assistant Commonwealth Attorney1978-79- sibilites to the court, the law, and the sys Kentucky since the Gregory Wilson case. he ledtheMajor OffenderProgram operated temofjustice and isnot there to serve as The issue has not gone away, nor should wider a L.EAA Grant to prosecute career an accessory after the fact. it go away. criminal,.1n1978he worked asaspecialagent for the FBi. in theDetroitfield office. While attheBureau, he workedon2 separatesquads, Ihave been obligated in my role aspublic one dealing wilhHUDfraud andthe otherwith "While clients don’t always like defender to "advance" certainexpenses as public corruption. David left the Bureau what I have to tell them, they the need arises in a case, for example, to to’wardthe end oftheCarter administration. always know I am in their corner, obtain records. These "special expenses" fighting for them the best I can." are advanced by the office prior to billing. David approachescriminal defense work with the thoroughness he gave to the investigation of crime: as a Bureau Agent. Defense work is Disputes between lawyers andclients can Governmental officials and the public are particularty challenging when thecasegoes to most often be attributed to misunder unaware that those cash outlays get trial. The needfor sincere advocacy is great, standings because the lawyeris speaking prorated along with the usual billable but thorough investigation both ofthefactsand on one level and the client is under time. When the allotment is prorated and the law present the greatest opportunitiesfor standing on another. It is important to costs thathavealready beenadvanced also good results in a case. DavidfeeLsgood about strive to approach the same leveL Many get prorated, the funds received do little the work he and co-counsel. Ci. Victor of times before seeing client, make Florence,KYdidin thecase ofCommonwealth a I an more than cover the cost of incidental v. Cornwell. Excellent legal work was ac effort to investigate the facts inde expenses. complished in the face of adverse public pendently. opinion, adverse news coverage and courts mindful of both. There are substantial differences in the On a number of occasions, I have been Commonwealth’s resources versus those called upon to deal withclients that other Here’s some of David: thoughts on public available to the the defense. defender practice: lawyershavehad difficulty working. I can recall at leastone client thatIdon’t believe In Kenton County we have some 20+ CLIENTS anybody could have worked with, and I was no exception, despite the fact I was roster attorneys. Each pays his/her own doing evezything legally possible for his expenses- rent, malpractice insurance, The first thing a lawyer learns about ac equipment, staff, etc, and maintains a law cused citizensis that not uncommon- defense. With the exception of that one it is client, most clients are looking for some practice as welL The Office ofPublic Ad for them either to lie to you or to fail to degree of understanding as to the process vocacy does provide an investigator, but tell you all of the truth. An accused often the investigator is responsible to any operates onfear. Chiefly that fear is that if being confronted,the role of attorney the limitations of his services and what can public defender in the numerous counties they tell the truth, the attorneywill notbe he covers. nearly as ardent inhis advocacy. Perhaps be done within those confines for that this is human nature or perhaps a prior individual. lawyer was not asadversarial ashe should In contrast, the Commonwealth Attorney have been after the client was completely Thereis no substitute fortaking some time is salaried, has assistants/staff, and state candid. with the client to explain the situation facilities thus no overhead. For inves confronting theclient. While it is a burden tigative resources, inaddition to the detec to deal with some of the clients in the tives in their office, the Commonwealth Guilt or innocence is an issue best left to Attorney can call upon local law enforce the jury. What is important is what the public defender system, I’ve found if you treat them decently, they usually respond ment agencies and the Kentucky state Commonwealth can prove. A tougher police to investigate cases. problem occurs when the client gives inkind.

June I99OtThe Advocate 3 to theEditor Letters Racism in Kentucky’s Justice System and Money for Indigent Resources

Dear Mr. Monahan, My personal experience in the criminal And what does the attached study on justice system, and the knowledge Ihave Young Black Men in prison implicate? gained as a person working in the state See April, 1990 Advocate, pp. 11-14. I have always enjoyed reading The Advo defender office for 14 years, have led me cate whichispublishedby the Department to believe that the color of the skin of of PublicAdvocacy. However, I must say criminal defendants in this state does Our Chief Justice just March 14, 1990 that Iwas dismayed by your comments in make an unfortunate difference. The fact indicated that he wants us to "search out the February, 1990 issue. While the per that percentagewise there are times as and eliminate racial bias in our judicial centage of blacks in prison compared to 4 system." the percentage of blacks in the general many blacks in prison than in our popula population is cause for concern, I heard a tion is an indicator of such a problem in done our state. On February 27, 1990 the General Ac synopsis of an in-depth study in counting Office released a study finding California on National Public Radio a "a pattern evidence couple of weeks ago which shed much It wouldbe presumptuous of metosay that of indicating racial I know for sure why such a significant disparities in the charging, sentencing and lightonthereasonsforthisproblem.Your imposition of the death penalty after the conclusion that "the justice system is disparity exists. That is why I asked the Furman decision? stacked against people of color" was cer question in my editorial comment as to tainly not consistent with what a tremen whether this racial disparity is a product dous amount of research showed and is a of open or subtleracism that continues in In Race, Homicide, Severity, and the Ap wholesale condemnation of all of us who today’s society. I also urged that we all plication of the Death Penalty: A Con work in thejustice system. together had better commit ourselves to sideration ofthe Barneu Scale, Criminol finding out why this disparity exists in ogy, VoL 23, No.31989, the University I am further disappointed by your com such a large proportion and to commit of Louisville’s Drs. Keil, Thomas and ment that "few other judges in our state ourselves to correcting it. Vito conclude: have been willing to follow the law" in discussing courtorderedpaymentofattor Blacks who kill whites axe marelikely to I did not label judges as the sole culprits becharged with acapitalcrime than others ney feesby fiscal courts pursuant to Chap in this matter. The justice system consists i.e., blacks who kill blacks, whites who ter 31. The Jefferson Circuit and District notonly of judgesbut also of prosecutors, kill whites, and whites who kill blacks benches which total 39 Judges have al criminal defenseattorneys, public defend ways been proud and supportive of our ers, jurors,police,corrections,etc. Iwould Kentucky juries aze...more likely to send public defender system. While the com not be surprised if there are problems in blacks who killwhites to death row. ments you made as the editor will not every aspect of the justice system as it affect the relationship that we have estab relates to this racial disparity, including In Kentucky, raceis inextricably bound up lished in Jefferson County, it certainly subtle or open racism on the part of with the way in whichthe capital sentenc will not promote better relations between criminal defense attorneys and public ing processoperates. the bench and the public defender system defenders in this state. in areas where any problems exist, if in In their pastoralletterBrothersandSisters fact they do. to Us, the Catholic Bishops have offered I do not stand alone in questioning some rather stark insights into the radical whether or not thejustice system is work evil of the structural racism present in our Martin E. Johnstone ing for blacks. As we indicated in the society: Judge, Jefferson Circuit Court February, 1990 Advocate, Bruce Wright, New York State Supreme Court Justice, The structures axe subtly racist, for these The following is the reply of the Editor has written a book entitled BlackRobes, structures reflect the values which society of The Advocate: White Justice, where he investigates why, upholds. They are geared to thesuccess of inhis opinion, our justice system does not the majority and the failureof theminority. work forblacks. Dear Judge Johnstone, Members of both groups give unwitting approval by accepting things as they are. On page 23 of the February, 1990 Advo Perhaps no singleindividual is to blame. Thank you for your letter of March 12 cate, State Representative and attorney The sinfulness is often anonymous but expressing your very serious concerns Bill Lear expressed grave concern about nonetheless real. The sin is socialin natwn about my editorial remarks in the the significant racial disparity of Ken in that each of us, in vazng degrees, is February, 1990 issue of The Advocate. tucky prisoners. responsible. All of us in some measure are accomplices. Racismis notmerely onesin anxrng many,

June 199011’heAdvocate 4 isis aradical evil dividing the human fanti that money shouldn’t make a difference. And Judge Johnstone’s reply: ly and denying the new creation of a redeemed world. To struggle against it demands an equally radical transformation And yes, the Jefferson Circuit Court Dear Mr. Monahan, inourown minds and heartsas well as the judges stand out as examples of judges structure of our society. who are following the law. And yes, there Thank you for your responseto my letter are otherjudgesinthis state who havevery of March 12, 1990. Perhaps I took your Kentuckyisnot,asmuchasyouorlmight courageously followed the law in this statement that "the justice system is stack like to think otherwise, exempt from sig regard. And yet,Jefferson County has ap ed against people of color" too literally. I nificant racism inthe criminal justice sys pointed attorneys representing capital certainlydo notdeny that a problem exists tem. clients for the pitiful sum of $500! and appreciate those, like you, who at tempt to raise people’s consciousness to My hope is to continue to address this In Kenton County a black defendant was what is a national dilemma. Nevertheless, problem in future issues of The Advocate. recently sentenced to death because no Ithinkthatallofusinthecriminal justice If you are willing, Iwouldilke toreprint competent attorneyexperienced in capital system are tending to "whip ourselves" your March 12 letter in the JuneAdvocate. cases would represent the client for mini whenthe insatiable desire to incarcerate is mumwage or less. And haven’ttherebeen driven by forces outside of my ranks or note in Jefferson County, at yours. Special interest groups, knee-jerk As to your disappointment with mycom instances of our state least in district court, where certain judges legislators, and the press must accept and ment about few other judges in were stubbornly reluctant to appoint bear part of the responsibility. being willing to follow the law by order ing fiscal courts to pay attorney fees in counsel forobviously needy and qualified excess the statutory maximums, that defendants? We have to recognize that Admittedly, my experience dealing of there are significant "politics" involved in in simply is my experience across the state. whether an elected circuit or appellate with fiscal court under Chapter 31 is You are very correct in saying that Jeffer limited to Jefferson County. The bench son Circuit Judges have generally distin judge orders an elected fiscal court to pay hereenjoys an excellent relationship with guished themselves by following the law money forcriminals. the Public Defender’sOffice and Iwonder intheareaofenforcingKRS Chapter3l if bad experiences out in the state are not mandates on things like fiscal court’s While I do not know you personally, I the result of lack of knowledge on the part responsibility for expert witness fees. have a great deal of respect for you from of Judges as to their ability to mandate However, that is not a thoroughly com what Iknow of you through other people payment by the various fiscal courts. It mon experience across the state of Ken in this office and persons that I know in may be a ripe area for a presentation at the tucky, even in the very most serious cases the Jefferson District Defender Office. It annual judicial collegesof the District and when the life of the defendant is at stake. is disconcerting tome that Ihave invoked Circuit Courts. In fact, outside of Jefferson County and your ire However, my experiences maybe a handful of other counties, it is repeatedly have instructed me that the probably the exception. Finally, you certainly have permission to color of a person’s skin makes an unfair reprint my letter. It may cIuse those who difference in our criminal jutice system, read it to consider the issues raised. I am and that toomany circuitjudges havebeen Many circuit judges in this state have fiscal courts confident that such was your purpose in never ever ruled that the fiscal court is unwilling to require to meet writing the editorial and I applaud your While there their statutory and constitutional fiscal responsibleforpayinga dime. obligations and Kentuckyappellate courts efforts in that regard. Be assuredthat you are many roported appellate cases that ac have not invoked my ‘ire" or damaged knowledge that fiscal courts are respon have not rushed in to protect indigents. That experience led me to make the any relationships. I probably had just sible under Chapter 31 for expert witness Advocate. finished a divorce case when I read your fees, Iknow ofno publishedappellate case editorial comments in The editorial. That invokes my ire! that has reverseda conviction due to a trial fiscal court to judge’s refusal to order the People of integrity who are well educated Martin E. Johnstone pay requested expertwitness fees. and in positions of influence - like you, Judge Adams, Judge Daughaday, Justice Judge, Jefferson Circuit Court There is an unpublished Court of Appeals Stephens and me - have, in my opinion, a case,Kathi S. Kerrv. Commonwealth, Ky. highmoral duty to notonly lead others to App. No. 86-CA-2564-MR 2/5/88, be color blind and to follow the law by our reversing a Jefferson Circuit Court judg example but we must also call them to LETFERS TO ment due to the court’srefusal toorder the eliminate racial disparity and practices fiscal court to pay fees to bring a defense that unfairly penalize those without THE EDITOR witness in from outof state. means. And yes,we should never ever do it with the pwpose of hurting anyone or If you have views about matters addressed damaging relationships - but we must do in The Advocate, share them with us by Yes, there are a coupleof Kentucky cases it even if it has the unfortunate and unin writing to: that require fiscal courts to pay attorneys’ tended effect of having others think less fees when ordered. But those cases repre of what we do, say or are. Editor sent theminoritypractice in the 120 coun The Advocate ties in this state. Department of Public Advocacy Edward C. Monahan 1264 Louisville Road Editor, The Advocate Perimeter Park West I believe that a significant number of cir Frankfort, KY 40601 cultjudgesin this state refusetofollow the law that is so clearly enunciated, and that fellow citizens who have their liberty or their life at risk, aren’t getting the benefit of a fundamentally important principle

June l99Offhe Advocate 5 1990 LEGISLATIVE SESSION IMPACTON DPA

New DPA Money Obtained tive sentencing and information manage Senator Maloney ment systemplan, were also approved. Now that the 1990 legislative session is Senator Michael Moloney also deserves over, it seems appropriate to report to you Money for LocalPrograms special recognition for his guidance and briefly on how the Department of Public efforts during the 1990 Legislative Ses Advocacy fared. This was a verydifficult JntheGrantstoCountiesarea,theDepart sion. It is myfirmbeliefthat we wouldnot session in which to get attention for any ment received an additional $350,000 in havereceivedany increases infunding for thing other than education reform. Yet, the first year of the biennium and salary improvement andgrants to counties despite some disappointments, the $500,000 in the second year. In order to without his efforts. The Department is Department of Public Advocacy was suc distribute these funds as equitably as pos indebted to him for his commitment to cessful in obtainingmajor new funding in sible, the Department has decided to in equal justice for all. the amount of $817,000 in the first year of crease each county’s allotmentby 12% in the biennium and $984,900 in the second the first year and 17% in the second year, year of the biennium. William R. Jones, Chairman which is the increase which the Legisla Public Advocacy Commission ture approved. Chase College of Law DPA’s Budget Request Northern Kentucky University Salary Improvement Highland Heights, KY 41076 The original budget request which the 606 572-5340 Department submittedto the Governor in The Legislature approved funding to raise cluded seven expansion requests and one the beginning salary for attorneys to the item which had no fiscal impact. These mid-point of the salary range in each DPA COMMISSION were category. 1 salary improvement REAPPOINTMENTS 2 grants to counties CapitalThai Litigation SUSAN KUZMA was reappointed by Dean 3 major litigation Barbara Lewis to a 4 year term on April 26, 4 alternative sentencing program The one critical area where we were not 1990. Her new term begIns July 15,1990. 5 post-conviction offices successful was capital litigation.Current 6 additional positions inProtection and ly, the Public Advocateis evaluating the MARTHA ROSENBERG was reappointed Advocacy total budget to see if there is any innova on April 9, 1990 by Chief Justice Robert F. 7 improvements in the information Stephens to a 4 year term beginning July 15, tive way in which some additional money 1990. management resources plan, and can be channeled to this area. However, 8 transferring FFFL positions to merit there certainly areno guarantees that this positions [no fiscal impact]. problem area can be addressed in any DPA COMMISSION MEETS meaningful way during the upcoming The Executive Budget biennium. The next DPA Commission meeting is on August 9,1990 in the DPA Conference Room, The Executive Budget submitted to the Many Helped 1264 Louisville Road, Frankfort, Kentucky. Legislature included only the Altemative Sentencing Program and Information A number of peoplehelped in our efforts Management Resources Plan. Salary im before this Legislative Session, and it is provement was included in the Executive notpossible tothank all ofthem, or forthat 1990 Budget, butnone of those funds were ear matter, to necessarily know all who are STARTING SALARIES FOR marked for any particular department. deservingof thanks. However, in addition PUBLIC DEFENDERS 7 SURROUNDING STATES to my efforts and those of the Public Ad AND Commission Action vocate, Paul Isaacs, a number of persons KENTUCKY supported our efforts by attending hear 1. West Virginia $25,000-28,000 The Public AdvocacyCommission decid ings before Senate and House Commit ed to concentrate its efforts on obtaining 2. Ohio $26,936 tees. Among those lending their support 3. Missouri $23,220 reinstatement of 4 of the items in the by attending were Beverly Storm, Presi 4. Virginia $27,000 original budget request: dent of the Northern Kentucky Bar As 5. Illinois $25,536 1 salary improvement, sociation, representatives from the 6. Tennessee $25,000 2 grants to counties, Fayette County and Jefferson County 7. Indiana $23,478 3 capital litigation,and Public Defender Offices, and Commis 4 moving FFILpositions to merit posi sion members Bob Carran [Bob is also Average for tions. 7 Surrounding Director of Northern Kentucky Public States Defender, Inc.,] Judge Lambert Hehi, $25,167 Oureffortswerepartially successful inthe and Susan Stokley Clary. Kentucky $21,600 first two of these items. The two items Cu of July 1. 1950 included in the ExecutiveBudget, alterna

June l99Ofthe Advocate 6 ILLINOIS P.D. OFFICE GETS LAWYER ON LOAN

I

of the largest Chicago law firms, said he about 60% ofthe cases and privatecounsel LAWYER-SHARING sees the pilot programas a first step toward are appointed the remainder. Stone said he major changes in the public defender sys prefers amixed system ofrepresentationto tem. Stone, who is also an NLADA a contract system where cases are con Just as "lime-sharing" was the popular Defender Committee member, said the tracted out to a firmor group for a specific trend for the ‘80s, an illinois public private bar will have to be involved in amount of money. Stone said a contract defender office is hoping that "lawyer- improving the criminaljustice system, not system leads to abuses because the con sharing" will be ahottrend for the90’s and only on the defense side but in the system tracting agency has a specific amount of beyond. The Cook County Public as a whole. money to work with and thereis a chance Defender Office has teamed up with the that the group will notprovide quality rep Chicago law firmof Latharn & Watkinsto Over the years, however, the private bar’s resentation. Stone said he would like toget start a pilot "lawyer on loan" program, in participation in criminal defense work in more firms involved in the lawyer on hopes that law firm attorneys will help Illinois has diminished. Currently, public loan" program and for the participating reduce escalating case loads in thepublic defenders handle 90% of all criminal lawyers to makelonger commitments of a defender’s office and help to improve the defense work in the aty and 70-75% in the minimum of 6 months to a year. criminal justice system. Through thepro- suburbs. InCook County,about4l0public grain, lawyers from area law firms will be defenders handle 200,000 cases a year. NLADA 1625 K Street, NW 8th Floor assigned cases from the public defender’s Stone said thereason for this declineis that Washington, D.C. 20006 office on apro bono basis for a specified criminal law is not an especially popular 202 452-0620 Reprinted by Permission. period of time. form of practice because it is notincome producing since most defendants are in Latham & Watkins associate Doug Freed digent. By getting largefirms involved in man, who came up with the idea for the the system, Stone is hoping that private pilot and is the first participant in the lawyerswill become interestedin helping WHAT’S THE WORTH OF project, was assigned a3-month stintwith to makesubstantive changesin thesystem. THINGS? the public defender’s office. The Cook County office is taking part in a growing Attorneys seeking trial experience, Stone Third baseman Paul Molitor agreed trend. Lawyer loan programs have also said, would benefitfrom working with and February, 1990 to a $9.1 million 3 year beemi undertakenin Californiawhere attor gaining tips from experienced trial attor contract with the Milwaukee Brewers. He neys there have worked in the Orange neys as well as learning by doing. Stone is but the 7th highest paid major league County state’s attorneys office and for an hopes eventually this program will bring baseball figure. enforcement agency in San Diego. abouta mixed system of representationof theindigent in Cook County. Mixed repre The total yearly salary for the Cincinnati Cook County Public Defender Randolph sentation systems already exist in many Reds is $14,231,500. Stone, who has sent recruitingletters to 30 jurisdictions. In the Distdct ofColumbia, where the public defender’s office is not DPA’s annual budget for 70,000 cases is required to represent such a largepercent but $11.4 million. A telling revelation of WE CARE MORE ABOUT age of indigents, public defenders take our values. DOGS THAN PEOPLE ACCUSED OFCRIMES 1990.91 MONEY FOR KENTUCKY AGENCIES, IN MILLIONS OF DOLLARS In 1986, according to the September, 1988 U.S. Department of Justice Bureau of Jus tice StatisticsReport, CriminalDefensefor thePoor, 1986 we spent almost $1 billion dollars nationally to represent indigent citizens accusedofcrimes. That same year we spent $3.3 billion dollars nationally on dog food. Our values seem clear. 250 $219.1

200

150

100

50 $11.4 0 C Correcric*is Justice Judiciary Prosecution DPA

June 1990t1’he Advocate 7 UNIVERSITY OF LOUISVILLE LAW SCHOOL Working to Establish a Commitment to Public Interest Law

Thefoilowing is a written interview with Dews What are Kentucky law schools doingto rnitted to the faculty for its consideration Barbara Lewis. educate lawyers about the entire justice during the 1990-91 academic year; system, especially the criticalImportance Sn veys consistently show that as many as of the crintinal justice system? What Is your law school doing to en 40% of Incoming law school surveys ex couragecriminal defense work and public press an Interest in public interest legal Courses are offered in criminal law and service through Its offered courses, at careers. Yet only 3% of law school criminal procedure. In addition, we have titudes of professors, providing role graduates choose public Interest law. an internship program under the auspices model professors who have a public ser Why Is thlswben so many of the poor have of which students have an opportunity to vice/criminal justice background, unmet civil and crhnlnal cases? work in the office of the Public Defender, through loan forgiveness, through job Commonwealth Attorney and County At opportunities to placement? Students havemore local torney. Students are encouraged to par find part-time/summer positions in ticipateinthis program. Further thefacul Throughthe PlacementOffice, invitations private practice and corporate environ ty in discussions with students do em to interview on campus have beenmailed ments while they are in law school. phasize the importance of the justice sys to legal services/public defender or Therefore, they get exposed to these op tem, both &minal and civil. throughout Kentucky. Invita tions for post-law school employment. ganizations larger firms are visible with their tions to participate in our annual Career Also, What Is your law school doing to Imbue Nightprogram are mailed toDepartment attractive firm resumes and activerecruit Importanceof public service law Into services, ment programson campus and atjobfairs. the of Public Advocacy, local legal be an impor the persons you are training to be public defender offices and A.P.A.L. Salary differential must also lawyers? R.E.D. offices. Over the years we have tant factor for many. sponsored speakers and panels on public There is no formal program to imbue the interest topics. Legal service directories What does It cost to attend 3 years of law impoztance ofpublic service;however, as and other resources are organized in the school In Kentucky? an integral part of the courses which are Placement Library. taught, the faculty do emphasize the sig Annual 3 Yr Total nificance and importance of public ser Some Kentucky law graduates would vice. Jn addition, we offer a seminar in choose public Interest law, Including 1 Resident $2,500 $7,500 "Legal Problems of the Poor," in which public defender jobs, If their significant 2 Non-resident $7,400 $22,200 greatemphasis isplacedonpublic service. law school educational loans were for 3 Single, The School of Law always encourages given In whole or part or had repayment off campus students to participate in public service. deferred. In the past 4 years over 20 living expenses $7,546 $22,638 There is also an internship program under postgraduate loan repayment assistance 4 Married, which students may work at Legal Aid. programs have been established at law off campus schools. Does your law school have this living expenses $10,250 $30,750 Some law schools require law students to kindof program forthose entering public provide free legal services to the poor as a Over the last several years, how many Interest law? If not what are the pea condition ofgraduation. Tulane requires sibilitlesof one being started? graduates of your law school have gone 20 pro bono hours,the University of Pen Into public service law? into public nsylvania requIres 35 hours during each The U of L School of Law doesnot have defenderlaw? of the second and third years, Florida an educational loan forgiveness program. State University requires 20 hours.Is this We have investigated the possibility and 1989-3 public delbnderlaw, 1 legal service 1988- Opublic defenderlaw, 1 legal service kind of commitment to serving the poor found that the educational loan forgive 1987- 2public defender law, I legal service something that your law school requires ness programs that have been established 1986-2 public defenderlaw, 1 legal service or will be requiring? are primarily from those institutions 1985-2 publicdefender law,0 legal service which havefunds available to loan to stu The School of law does not at present dents. As a state institution, we do not Why do you think so few Kentucky law requirepro bono hours; one faculty mem loan funds to students. Our students ac graduates are willing to go Into public ber is preparing a proposal regarding pro quire their fund loans from the federally service law, especially Kentucky public bono requirement, which will be sub- defender work? The KentuckyDepartment ofPublic Advocacy enjoys a nationwide reputation for excellence Many U of L law graduates would be among public defenderprograms. Working for the Department ofPublic Advocacy provides willing to go into public service law, in the opportunity for a young lawyerto obtain litigation experience and skills. Italso providesa chance to make ameaningful and lasting contribution to justice, which is, after all, the aim of cluding public defender work; if more every lawyer. positions were located in Louisville or other similarmetropolitan areas. BarbaraB. Lewis, Dean, University ofLouisville Law School

June 1990!rheAdvocate 8 funded student loanprograms and the pro Yes and no. Certainly the attorney has the Does your law school have a National As gram funded by the Law School Admis requisite knowledgeandinformation tobe sociation of Public InterestLawChapter? thom Council. We therefore are not in a a member of the Bar and therefore is position to forgive any loans. qualified to practice law; however, there No. is no substitute for experience. Attorneys What should the Kentucky Bar Associa needassistanceand guidance in obtaining Anyother thoughts? tIon and the Department of Public Ad experience in representing criminal clients. The increasing attention topro bono ser vocacy be doing to increase attorneys defendants as well as other public law the going Into public Interest law? vices and to interest on part Do you have a prosecution/criminal d of the Bar Association is a veryhealthy If the Kentucky Bar Association and the defense clinic? Why? If not, why not and move. This in turn influences directly and Department of Public Advocacy were to do you expect establishIng one? indirectly law students. All members of establish funding and a program whereby the profession, including the law schools, assistancecould be provided inthe repay We do have a criminal law clinic, though must work together to seek to establish a ment of educational loans, this would it is not an in house clinic. Students are commitment to public interest law on the remove a financial barrier to assuming a offered the opportunity to intern withthe part of students as well asattorneys. position in public interest law. Since one office of the Public Advocate, the Corn of the primary problems is low compensa monwealth Attorney and the County At BARBARA B. LEWIS tion offeredin public interest law, efforts torney. These intemnships do provide an Dean. University of Louisville to increase that compensation, would en opportunity for students to receive some School of Law courage attorneys going into public inter experience in trying criminal cases. Louisville, Kentucky 40292 est law. 502 588-6879 When a persongraduates from law school and passes the bar exam, Is the attorney ready to represent criminal defendants? UNIVERSITY OF KENTUCKYLAW SCHOOL Low Salaries KeepLaw Graduatesfrom PublicDefender Careers

The follcrwing is an interview with Dean Inadequate salaries. Since 1978 average obligation in Professional Responsibility RuthefordB. Campbell. Jr. KY law firm salary has increased from and other courses. Many of the faculty are Surveys consistentlyshowthat asmany as $13,500 to $28,600; average public inter involved inpro bono work. 40% of Incoming law school students ex est/state government salaryhas increased press an interest in public Interest legal from $12,500-$13,000 to only $17,500. Some law schools require law students to careers. Yet only 3 % of law school providefree legal services to the poor as a graduates choose public Interest law. What are Kentucky law schools doing to condition of graduation. Tulane requires Why Is thiswhen somany ofthe poor have educate lawyers about the entire justice 20pro bono hours, the University of Pen unmet civil and crIminal legal needs? system, especially the critical Importance nsylvania requires 35 hours during each of the criminal justice system? of the second and third years, Florida Primarily salary differentials-not only State University requires 20 hours. Is this starting salaries but projected salaries 1 Courses - Constitututional Law, kind of commitment to serving the poor after 5 years. Criminal Procedure, Criminal Trial something that your law school requires Process, Litigation Skills. 2Intern or will be requiring? Programs with Ed Henry & Ray Larson. Whatdoes It cost to attend 3 years of law Occasional speakers. school In Kentucky? 3 We encourage volunteerism, but we have no such requirement.

Tuition - KY residents - about $7,000 What Is your law school doing to Imbue Living Costs - about $20,000 the Importance of public service law Into What Is your law school doing to en the persons you are trainIng to be couragecriminal defense work and public Over the last several years, how many lawyers? service through Its offered courses, at graduates of your law school have gone titudes of professors, providing role into public service law? Into public, We try to emphasize the public service defender law? Public Service 1% I admire the public advocates as much as any group of lawyers in our profession. Their Public Defender 1% dedication to service and their commitment tojustice are unsurpassed by any othergroup in the Why do you think so few Kentucky law profession. graduates are willing to go into public service law, especially Kentucky public Bob Lawson, University of Kentucky Law Professor defenderwork? UK Law School Dean, 1982-1988

June 19901The Advocate 9 model professors who have a public ser schools. Does your law school have this The attorney is ready to second chair in a vice/crimInal justice background, kindof program for those entering public public defender office. through loan forgiveness, through job interest law? If not, what are the pos placement? sibilities of one being started? Do you have a prosecutIon/criminal defense clinic? Why? If not, why not and Allison Connelly of the Department of We do nothave such a programbut would do you expect establishing one? Public Advocacy is a visiting professor be interestedin starting a loan forgiveness this semester. Bill Fortune has a public program iffunds became available. Yes - taught by Ray Larson -very success defender background. John Bait has ex ful program. tensive experience in criminal defense What should the Kentucky Bar Associa matters. tion and the Department of Public Ad Does your law school have a NationalAs vocacy be doing to Increase attorneys sociation of PublicInterestLawChapter? Some Kentucky law graduates would going Into public Interestlaw? choose public Interest law, Including No - National Lawyers Guild Chapter. public defender jobs, If their significant The KBA could fund a loan forgiven pro law school educational loans were for gram at the law schools with IOLTA Firms could start "sabbatical" RUTHEFORD B. CAMPBELL, JR. givenIn whole or part or had repayment money. Dean, University of Kentucky deferred. In the past 4 yearsover20 post programs forwould-be litigators withthe DPA and prosecutors office. Collegeof Law, Law Building graduate loan repayment assistance Lexington, KY 40506-0048 programs have been established at law When a person graduates from law school 606 257-1678 and passes the bar exam, Is the attorney ready to represent criminal defendants? SALMON P. CHASELAW SCHOOL Too Much Empharlsis on Attaining Private Wealth, Not Workingfor the Public Good

Thefoilowing iran interview withDeanLoweil What does it cost to attend 3 years of law agencies tend to serve, Interestingly F. Schechter. school In Kentucky? enough public defender jobs may have that as somewhat more prestige than legal aid Surveys consistentlyshow many as For residents, tuition is now running at positions. Student perceptions maysimp 40% of Incoming law school students ex approximately $2500 per year. The press interest In public Interest legal ly reflect the values that have been an UniversityFinancial Aid Office estimates prevalent in our society for the past careers. Yet only 3% of law school that total expenses, including tutition, will Interest decade:the emphasis on achieving private graduates choose public law. runaresident studentclose to $15,000 per wealth rather than working for the public Why is this whenso manyof the poorhave year. good. unmet civil and criminal legal needs? Over the last several years, how many If these surveys are based on what incom What are Kentucky law schools doing to ing students say on their applications to graduates of your law school have gone educate lawyers about the entire justice law school, Iwould tend to discount their Into public service law? Into public system, especIally the critical Importance validity. Having served on our Admis defender law? of the criminal justice system? sions Committee for the past 6 or 7 years, Our Placement Director puts the figure at At Chase we require students to complete it is my belief that while some applicants less than 2% overall. Perhaps half of those do have a genuine interest in public inter courses in criminal law and criniinl pro going into public service law have taken cedure. We also have an elective criminal est law, other applicants express an inter public defender positions. est because they believe that is what the justice seminar. admissions committee wants to hear. I Why do you think so few Kentucky law What Is your law school doIng to Imbue think it is true that law schools do tend to graduates are willing to go Into public emphasize private law andpractice to our the importanceof public service law Into service law, especially Kentucky public persons you are training to be lawyers? students. In addition, many ofour students defender work? are not well off and have to take student Not asmuch aswe should be doing, but:1 loans tocomplete schooL Facedwithpost- Students perceive public interest law jobs For the past 2 years we have used IOLTA law school financial pressures, students as having low pay and little prestige. Stu grants to fund student fellowships with may be less willing to considerrelatively dents Ihave talked to have also indicated public service agencies in Northern Ken low payingjobs in the public sector. that they have reservations about working tucky. 2 We have a very active ViTA with the type of clients public interest program. See answer to question below.

June 1990!The Advocate 10 Some law schools require law students to public defender jobs, If their significant process would give preference to students provIde free legal servIcestothe poor as a law school educational loans were for whohad gone outand worked a couple of condition of graduation. Tulane requires given In whole or In part or had repay years for legal aid or the Department of 20 pro bono hours,the University of Pen ment deferred. In the past 4 yearsover20 Public Advocacy, I think that would help nsylvania requires 35 hours during each post-graduate loan repayment assistance to get the message across. of the second and thIrd years, Florida programs have been established at law State UniversIty requires 20 hours.Is this schools. Does your law school have this When aperson graduates from lawschool kind of commitment to serving the poor kind of program forthose entering public and passes the bar exam, Is the attorney something that your law school requires interest law? If not, what are the pos ready to represent criminal defendants? or will be requiring? sibilities of one being started. The opinion of the public-serviceoriented We have no such requirement at present. We donothave such a program. Given our faculty member I asked for advice is that It is worth noting that a VITA program, limited financial resources, I do not think our students upon graduating and passing run by Professor Nacev, this year had 28 it likely that such aprograin will be started the bar are probably capable of repre students providing volunteer tax assis in the forseeable future. Quite frankly, I senting individuals charged with mis tance to low income tax payers in North- think there are higher priorities for demeanors, but should not be outon their emKentucky. whatever additional scholarship funding own defending individuals facing felony we receive, such as providing more charges. Given our small size, 28 students is a not scholarships forminority or economically inconsiderable percentage of our upper disadvantaged students on the front end. Do you have a prosecution/criminal division student body. The fact that so defense clinic? Why? If not, why notand many studentsvoluntarilyput in the num What should the Kentucky Bar Associa do you expect to establish one? tion and the Department of Public Ad ber of hours of service reSuired by some No. We have disbanded our extem clinical of theschools listedabove, indicates to me vocacy be doIng to Increase attorneys going into public Interest law? program, because the ABA has imposed that there is a sizable segment of our stu very stringent requirements on such dent body willing to do some public ser 1. Make presentations about public ser programs., We didnot feel that we could vice work. vice job opportunities at the law schools. meet these requirements especiually the requirements in terms of full-time faculty What Is your law school doing to en supervision, given our current staffing courage criminaldefense work and public 2. Emphasize that public interest lawyers deal with interesting and levels. Barring either a totally unexpected service through Its offerred course, at significant is substantial relaxation of ABA require titudes of professors, providing role sues; that they arenotinvolved withsimp boring, routine,repetitive work. ments, I do not foresee any revival of a model professors who have a public ser ly criminal clinical program in the near fu vice/crIminal justice background, ture. through loan forgiveness, through Job 3. Provide internships at public service placement? agencies and emphasize that these inter Does your law school have a NationalAs nships will give students valuable ex sociation of Public Interest LawChapter 1. Tn terms of courses,we did offer a perience in developing their skills, no "poverty law" course back in the early matter what law No. How do we go about 80s, but it died for lackof studentinterest. area of they eventually establishing wind up in. Fhe one? Editor’ 3 Note: See accompanying We do have a new federal judicial seminar Director of our ViTA program, where program has told me that one reason so NAPIL article.J some students who are manyof our students sign up for VITA is working with a federal magistrate in Cin that they believe they will get valuable Anyother cinnati may concentrate on habeas corpus thoughts? and prisonerrights issues. hands-on tax experience, while at the same timehelping the poor. Ithink you have raisedan importantprob 1cm which needs to be addressed by the 2. [n terms of professors, we do have one bar as a whole. Any realsolution is going 4. Provide additonal funding through to need the cooperation professor witha legal servicebackground IOLTA of the private bar who currently serveson a legal aid board. and other mechanisms forfellow and all 3 state law schools. Due to financial constraints,wehave ships for interns with public services done agencies. The IOLTA Fellowships we very little hiring inrecent years, not even currently have enable some of our stu LOWELL F. SCHECHTER replacing some professors whohave left. dents who need to work for financial Dean, Salmon P. Chase So, there is little realistic prospect of reasons to choose to work forpublic ser College of Law hiring new ‘role-model’ professors with vice agencies rather than Northern Kentucky University legal service backgrounds. forprivate firms. Highland Heights , KY 41076 606 572-5340 5. The KBA and judges must act to show 3. In terms of job placement, our Place that ment Director does discusspublic service public service work is important jobswith our students in one ofher place work. If private firms in their hiring ment seminars.This is one area where it would be feasible to provide aninunediate improvement. We move I believe the Department of Public Advocacy to be one of the outstanding agencies in the could to bring in Commonwealth. The caliber of representation is excellent, the attorneys committed and some dynamic public service lawyers to competent and the philosphy exemplary. I know of no greater field of law or agency which a talk about their jobs in one of the place beginning lawyer could enterthat would give greater experience, better insiruction and higher ment seminars. ethical associations than the Department of Public Mvocacy. Some of Kentucky law graduates would L Stanley Chauvln, Jr. President,American Bar Association, 1989-90 choose public interest law, Including

June 1990tTheAdvocate 11 WHITTLING AWAY AT TUITION DEBTS WHILE HELPING THE POOR

Michael Caudell-Feagan Only 3% Choose Public Interest Association for Public Interest Law under-represented constituencies. NAPIL found that 58% of organizations that had experienced problems Surveys consistently show that as much as with A loan repayment assistance program 40% of incoming law school classes ex retaining their attorneys cited education reverses more traditional financial aid press an interest in public interest legal loans as an important cause. plans by distributingbenefitsafter gradua careers. Unfortunately, few of these tion, based on employment and salary young would-be public servants follow Poor Clients Suffer criteria. Although unorthodox, this rever through with their first-year plans. In sal makes sense in the legal education 1987, only 3% of law school graduates In the 1990s, the legal profession will context. The past decade has seen law chose public interest career paths, while continue to be inaccessible to all but the 633% chose private law firm practice. school tuition ratesjump more than 150%, wealthy and those who plan to become while loans supplanted grant programs as These statistics are disheartening when wealthy representing those who can pay the basic component of federal higher viewed against the backdrop of a legal to hire an attorney. system which consistently neglects more education funding. As a result, law stu than 80% of the legal needs of the poor. dents, relying heavily on loans, rack up The real victims are the vast numbers of tens of thousands of dollars in debt by the poor people who are unable to receive time they graduate. Why So Few? assistance for essential legal needs. Something drastic is happening to law How It Works students’ career aspirations over the Aid Programs Can Help course of their legal education. Fmgers To a large extent, this system offinancing point to a tight job market, the traditional In response to this growing crisis, law legal education is made possible by the law school curriculum, aggressive law schools, bar associations, legal services high post-graduate salaries which most firm on-campus recruiting, and the per attorneys, public defenders, and legis law school graduates enjoy. However, it ceived selfishness of a generationwallow lators have begun to look for ways to precludes debt-burdened graduates from ing inmaterialism.Although each ofthese eliminate the debt burdenbarrier to lower- pursuing lower paying positions in the factors may affect students’ career paying public interest practice. These public interest field. AnLRAP solves this choices, anotherfactor presents an insur concerned members of the legal com problem by efficiently allocating limited mountable barrier to public interest work: munity have embraced new post-graduate financial aid resources to those who, be law student debt burden. financial aid programs, which defer or cause they choosepublic services careers, forgive educational debts for graduates are most heavily burdened by debtobliga pursuing public interest careers. tions after graduation. It is no coincidence that the decline in public interest legal placement has an companied exploding law school tuition In the past 4 years, close to 30 post Most of the LRAPs designate qualifying rates, an increase in law student reliance graduate loan repayment assistance employment as working for the govern on loans, and a rapidly expanding dis programs LRAPs have beenestablished ment, legal services, or a non-profit or parity between starting salaries in the at law schools, and the first state-financed ganization as defined in the IRS Code, public and private legal sectors. Indebted loan repayment assistance legislation has Sections 501c3 or c4. The for an average of $35,000, most law beenpassed inMaryland. Lawstudents on programs defer a portion of educational school graduates havemortgaged theirfu an additional 40 campuses are in various loans while the graduate remains in tore to fmance their education. stages of advocating for LRAPs so that qualifying employment. The majority of they and their colleagues can fulfill their programs phase in loan forgiveness, by public interest career aspirations, and ad which student debtis wholly forgiven fol Even those graduates who retain their vocates in at least 4 states are seeking to lowing a certainnumber ofyears inpublic commitment to public service through establish state-wide programs. interest employment. graduation, and work fora public interest employer, often are unable to remain at Where It Is Working their jobs and still pay back their law At its 1988 annual meeting, the American school debts. Bar Association added its voice to the growing chorus of loan assistance sup Currently, graduates of the following law porters. The ABA passed a resolution en schools benefit from some variation of A recent survey of legal services and dorsing LRAPs and calling on the legal this program: American University, Bos public defenders offices, jointly con community to establish such programs in ton College, Capitol University, Colum ductedby the National Legal Aid and order to open doors to public interest bia University, Cornell University, Duke Defenders Association and The National careers and University, Fr2nlclin Pierce University, improve legal services to Georgetown University, Hamline Univer

June 1990!TheAdvocate 12 sity, Harvard University, Loyola Univer sity Los Angeles,New York University, Northeastern University, Northwestern KENTUCKY BAR ASSOCIATION University, Ohio Northern University, Santa Clara University, Stanford Univer PUBLIC Th[TEREST LAW SECTION sity, Suffolk University, Tulane Univer The Public Interest Law Section PILS, of which lam a memberand Secretary, is a section of sity, University of Baltimore, University theKentuckyBarAssociation whose membership includes both criminal and civil lawyers. The of California at Berkeley, University of Section holds quarterly luncheon meetings featuring outstanding speakers. The Section has Chicago, University ofMaryland, Univer made an effort to ensure that over a period of time there will be a wide array of speakers, both sity of Michigan, University of Notre representing and appealing to the divergent membership of the Section. The latest speaker was Dame, University of Pennsylvania, Jefferson CircuitJudge Rebecca Westerfield, co-chairof the Gender Fairness Task Force. In California, recounting the plans, present status, and objectives of the Task Forte established by the Chief University of Southern Justice in cooperation with the Kentucky Bar Association,Judge Westerfield also enumerated University of Virginia, Yale University. two recent personalexamples ofsexual discrimination in the legal arena. A Variety of Models Other speakers have induded former Governor and 6th CircuitCourt of Appeals Judge Bert Combr, Supreme CourtJustices DonaldWintersheimer, Charles Leibson, andDanJackCombs; Not surprisingly, loan repayment assis Court ofAppeals Judges John Miller and Anthony Wilhoit U.S. District Court Judge William tance programs caught on first at the well- 0. Bertelsman U.S. Bankruptcy Judge Joe Lee, Attorney General Fred Cowan; attorney Joe endowed, private law schools. Other Childers founder of a non-profit public interest law firm; and - of particular interest to the schools facing greater budgetary con criminal bar - now former, then, Parole Board ChairmanRon Simmons. straints can look to state legislatures, the private bar, community organizations, Some of the activities that PILS has been involved in have included promoting the adoption and implementation of IOLTA in Kentucky, urging the Kentucky Board of Governors to adopt a and foundations forloan repayment assis policy against Bar Association groups meeting in any facility that discriminates, sponsoring tance initiatives. The legal communitycan continuing legal education seminars on various topics, monitoring legislation affecting in draw on several interesting models as al digents and others traditionally underrepresented, monitoring and promoting Supreme Court ternatives to law school-funded loan assis rule changes, and advocating the appointment of a state-wide Gender Bias Task Force. tance. The activities of PILS are dependent on the democratic input and participation of its member ship. To become a memberof PILS, all you need to do is check a box this fall on the annual State legislated loan repayment assistance form used to renew membership in the Kentucky Bar Association and pay an extrafee of $5 programs have proven to be comprehen dollars. sive, feasible alternatives to law school- based programs. In 1988, Maryland OLEH TUSTAN1WSKY Legal Services Corporation, under the leadership of Director Robert Rhudy, is- sued its Action Planfor Legal Sen’ices to the legal services, state bar, and law of the 5 originally planned. "There’s a Maryland’s Poor, which counted among school communities. AAPIL is in the greater need than we anticipated," ex its proposals, astate-legislatedloanrepay process of raising funds for loan forgive plains John Donnell, program chair. ment assistance program. Triggered by ness, and has already arranged that the "These people are very committed and the legal services community, the proceeds from the recreational activities providing tremendous services, so we Maryland loan assistance legislative ef at this year’s state bar convention will be don’twant to turn any of them away." fort garnered crucial support from used forAAPIL’s LRAP. The Columbus educators, students, the private bar, legis Bar Association in Ohio has granted lators, and the governor, who allocated $15,000 in scholarships and stipends to Bar leaders can replicate this successful $100,000 for the program in the 1989 graduates of Columbus’ two law schools program with law firm or business corn fiscal budget. In its first year, the program whopursue careers inpublic interest law. munity funding. On a small scale, law helped approximately 40 graduates of And LRAP proponents inTexas hope that firms might consider contributing to a Maryland graduate schools pursue public they will be able to establish the nation’s fledgling law school-administered LRAP. interest careers inMaryland. With similar AnLRAP could be named in honor of a first LRAP financed solely by a state bar donor law firm,just as easily as awing cooperative efforts, other states should be instead of the government. of able to incorporate loan assistance into a law school library. state post-secondary funding programs and at relatively low cost, improve legal Community-based loan repayment assis Student groups and school administrators services to impoverished communities. A tance programs might be modeled after an have tapped several other sourcesforloan similar bill has recently been passed by a innovative project launched by a group of assistance funding. Stanford Law School, Florida House of Representatives com past presidents of the greater New Haven for instance, received seed money for its mittee, although it onlycovers state attor Board of Realtors. Acknowledging that program from a Cummins Engine Foun neys and public defenders. they reap the benefits of strong com University munity leadership and public service, dation grant. The ofCalifornia these business leaders endowed a local at Berkeley solicited and received LRAP Local and state bars have begun to move loan assistance programfor legal services funds forthe U.S. Department of Educa beyond just advocating forstatelegislated attorneys, social workers, public interest tionthrough its Fundfor the Improvement LRAPs; many bars are now developing advocates, public health workers, and of Post-secondary Education. Finally, the innovative methods for financing their Tennessee Bar Foundation IOLTA Inter otherproviding communityservices inthe est on Lawyer’sTrust AccountsProgram own loan forgiveness programs, through area. bar associations, by "stand-alone" non has established loan forgiveness stipends profit corporations, and through agencies which will be offered by public interest of the state legislatures. The Arizona As First year response to the program has organizations to attorneys they seek to sociation forPublic InterestLaw AAPIL been so overwhelming that the board of hire. Members of the private barcan play is a recently incorporated non-profit with directors has decided to expand the pro an importantrole in soliciting such grants. a board of directors made up of leaders in gram. granting 10 loan subsidies instead They can help the legal education corn-

June 1990ffheAdvocate 13 munity identify likely funding sources 2 Tap Into Existing Resources On based LRAP programs, and fact sheets on and contribute valuable letters of support Other Campuses. NAPIL serves as a the issue. NAPIL also workswith thelegal clearinghouseand a resourcecenter onlaw services community andother proponents for grant proposals. student public interest activities. By ofLRAPs. producing publications, such as the 1989- Conclusion 90 DirectoryofMemberGroups.exchang - Public Interest Placement Resources: ing information on individual programs, NAPIL efforts include advocacy for more Contrary to popular belief, law student and working with NAPIL’s Organizer, public interest careercounselors, as well as surveys and placement office anecdotes programs can learnfrom and replicate the thedevelopmentofmaterialsand program indicate that there exists no shortage of successes on other campuses. rning for public interest careers. The Fel anxious to work in legal lowships Guide, Directory of Public Inter young attorneys Annotated Bib services and public interest law. Unfor 3 Benefit FromFundraising & Tax Ex est Legal Internships, and facemany institu pertise. NAPIL provides technical assis liography for Public Interest Placement tunately, these students tance and specialized training to law stu Resources are distributed annually to tionalized barriers to the pursuit of their dents promoting public interest initiatives. member programs and provide invaluable aspirations. One of the most prohibitive of Forexample, NAPIL’s Campus Organizer information on public interest careers. these obstacles is educational debt, and has attained specialized training in thelegal educationcommunity has lighted fundraising campaigns, including per 7 PartIcipateIn Regional Training Ses upon an effective solution: post-graduate sonal, mail, and telephone solicitation. sions. NAPIL works with member loan repayment assistance programs. This past summer, NAPIL hired a public programs through campus visits and Law schools with sufficient resources interest law finn to produce a merroran regional training to provide individualized have already established loan assistance dum for public interest grant programs ad and specialized assistanceon areas ofcon programs for their graduates. The chal dressing the tax and reporting require cern. Last academic year, NAPIL’s staff remains, however, for educators, ments they and their grant recipients need visited approximately 70 law schools. So lenge to satisfy. far this year, regional training sessions community groups, bar associations, and have been held in New York and North to government leaders expand loan repay 4 Participate In The National Con Carolina. Further sessions are currently ment assistance and open the door to ference&CareerFalr. Eachyear, NAPIL beingplannedin Atlanta, Los Angeles,San public interest legal careers for graduates organizes a NationalPublic Interest Law Francisco, Boston and Chicago. Visits and of all schools. Career Fair and Public Interest Law Stu trainings are altered to serve the dent Conference. Over 800 students and participants’ needs, but generally provide graduates attended the 1989 Fair and met assistance in the areas of fundraising, or These programs are easily administered, withrepresentatives from l30publicinter- ganizing, and public relations, and provide relatively economical, and can make a eat organizations and government agen the opportunity for groups to network and significant difference inour ability to pro cies. The 5th Annual Conference, Students exchange information among themselves. vide unmet legal needs. For additional Making a Difference, is the only national information regarding existing programs gathering of law students, law school ad 8 Impact Leading Legal Organizations. and advocacy efforts, contact NAPIL, ministrators, and practitioners working on NAPIL acts as a spokespersonfor law stu 1666 Connecticut AvenueNW, Suite 424, public interest initiatives. Participants ex dents concerned with thelack of access to Washington, DC 20009; 202462-0120. change invaluable information on their legal representation in our society. By campus and community programs. playing a prominent role with organiza tions such as theABA, NLADA, National MICHAEL CAUDELL-FEAGAN 5 Receive Financial Benefits. NAPIL Association for Law Placement NALP, solicits contributions from the country’s and Law School Admissions Council largest law firms as part of a campaign LSAC, NAPIL has been able to focus Michael Caudell-Feagan is the Executive entitled The Public Service Challenge. In their attention and resources on our con DirectoroftheNatlonalAssociationforPublic its first year, The Challenge raised cerns. As a result NALP established the InterestLaw NAPIL. This article is reprinted $120,000 from 26 law firms. Eachmember Task Force on thePublic Interest, theABA from the Summer 1989 PB! Exchange. The program received between $1,600-$4,000 produced a loan assistance action manual cartoon is reprinted with permission from the to be used in their grant disbursal process and passed a resolution endorsingloan for April 1988 issue of The NAPIL Connection. and we hope to double that amount in the giveness and income sharing programs, The Loan Repayment Assistance Program coming year. and the NLADA recently conducted a sur Comparison Charts are reprinted from vey of its members to begin to examine the NAPIL’s 1989 Loan Repayment Assistance and problem of debtmanagement in recruiting Report. NAPIL SMH-KaplanBarReview Ser vices have also recently entered into an and retaining lawyers for legal services agreement toprovide2 Public InterestLaw work All of the projects were undertaken Bar Review Scholarships to every member with the guidance and assistance of program for their use in 1990. NAPIL. 10 REASONS 6 Be PartOf The Solution To Barriers 9 Take An Active Role In Establishing TO BE A PART OF Confronting Students And Graduates NAPIL’s Agenda. NAPJL exists for the Pursuing Public Interest Practice. purpose of serving and strengthening our NAPIL NAPIL assists law students and others in member programs. All member programs terestedin removing the barriers confront that haveestablished apublicinterestgrant ing students and graduates interested in program maintain a seat on NAPIL’s 1 Be Part of a Dynamic & Growing pursuing public interest careers. In addi Board of Directors. Through this govern Network of Student & Graduate tion to our work on student and graduate ing body, NAPIL’s memberprograms es Funded Public Interest Fellowship funded fellowships, NAPIL has taken the tablish the agenda and priorities of the na Groups. NAPIL was founded in 1986 by lead in 2 other areas: tional office. 15 law student public interest organiza tions. NAPIL is currently 65 member - Loan Assistance/Forgiveness Ad 10 Help To Ensure That These Benefits programs strong. This past year, NAPIL vocacy: NAPIL has become the clearin Continue. Join with NAPJL in lending member programs raisedover$800,000 to ghouse for informationon loan repayment support to the national law student public fund 520 summer fellowships and project assistance programs, by producing an ac interestmovement and giving law students grants-a 60% increase in revenues over tion manual with the assistance of the a voice in ensuring that our legal system theprevious year. ABA/Law Student Division, a com will serve those in need. prehensive report of existing law school

June 1990tThe Advocate 14 Eilgtoiliy Miedcan Boston Columbia Cornell FrankBi Geor- Hemline HWvWd Maiy- NewYodi North North Stanford Suffolk Tulane Univ. Univ. of Univ. College Univ. Univ. Pierce getown Univ. Univ. land Univ. eastern western Univ. Univ. University of Mthlgan Nature of Law Can. Univ. State. Univ. Univ. Chicago employment terj wide Prog.

Public Interest Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Private Firm No Gen.Not No Gen. Not No Gait. Not Yes Yes No Yes Yes No Yes No Gen. Not Gen. Not Yes Gay. Setvice Yes Yes Yes Yes No No Yes Yes Yes Yes Yes Yes Yes No Yes Ye8 Yes JudicialClerk No No Yes No No No No Gen.Not NO No Gen. Not No Gen.Not No NO Gen.Not No

Max. Entiy $27K No Cap $35K $31,500 No Cap NoCap Av.Grad. $36,500 $40K $37K $30K $30K $34,500 $21K $22,907 $30K $32K Income Start.

LoansCovered Yes Yes Yes No Yes, No No No Yes No Yes Yes Yes No Yes No Yes Undergrad. Yea Yes - Yes Yes Yes Yes Yes Bremer Yes Yes Yes Yes Yes Yes Yes Yes Yes Law Schools PS Loan

Grad’s Share of $880 $450 Flrst3 Formula -0- -0. .. $300 See -0. $1800 .0. -0- $1,080 $580 $600 Loan Payment , $i ,® Year In - Prog. $2,430 Varies -Q- -0- :.: $900 footn. $1,500 $2400 $600 -0- N/A $1,780 $1460 Famtly Situation $5K Spouse’s $540 deduo. income ° $5,000 Spouse’s Upon ap- Based $4K $4K No deduct $5l Not to $3K child $20K $io,00 Leaves/ lion per over deduct deduct. Income plication ded. on deduct, deduct. for children deduct. exceed deduct, or above added to Unemployment d- $20K nd. Based on child per child over per child Federal per child per child Spouse’s cap If ant in AGI; graduates from AGI $15,000 Up to 1 ;notcon- Gov. #‘S from AGI Up to one child from monthly; Non-law income; spouse $5000 AGI ]None induded yearof sideredin 6 month yearfoi AGI 300 mthly. job, Up to 2 .by.. In AGI; child computing N/A 6 month parental child care, child child care, $3Kchild $4,000 Loan yearsfoc perchild; UptO2 basis 2ndYear $500 care, eligib. disability leave relocation, anyreason deduct. educ. deduct, child FOrgiveness child $1,200 Y for deduct. reloca- leave further Must up to 2 deduct. child care, care, living oepends per child lion, May leave educ., etc. return None years Any reloca- For dis- further for any withIn 10 reason; Undeter lion, lion, ifbVIn- abilityor educ.,etc. reason; years mustre- mined further Undeter- further come un- no time enter- educ. mined educ., etc. ratio employ.t limit gram within 3 years

Begins 4th Year End of 1st 2nd Year 4th Year 3rd Year Year After lstyear lstYear lstYear lstYear 5th year End of 4th End of 3rd lstyear 1sty End of 3rd 2nd Year Per Year 1st Yr. Pro-rata year year Grants; no year 33% each 25% 25%year 10%41h Only 10% monthly Gts 15% 25%4th loans Grants;no Year 15% Each Grants grants 15% Each Yr.; Grants Year basis only no only; only; 10th year y 15% loans 25% 4th year thereafter over 4 100%By Year loans no no loans 10th year thereafter 6th Year 10thYW years loans 10th year

Classes 1988 1987and l9B3and 1984and 1985and 1987and All All All 1984-990 1987and 1987and 1985and 1989 1988and 1986and 1986and I Eligible andAfter After After after Alter After Classes Classes Classes after after after andafter after after after NLAD*A AVOICE

When indigent people accusedof crimes among them; 2 Standards for the Administration of needhelp, they often turn todefendezsand 3 providing training, technical assis Assigned Counsel Systems, assigned counsel. Whendefenders andas tance, and other direct services to 3 Guidelines forNegotiating and Award signed counsel need help, many have providers of legal assistance and their ing Governmental Contracts for Criminal found the NLADA to be the place to turn. funding sources; Defense Services, 4 developing standards to guide 4 Case Weighting Project Systems: A NLADA is a private, not-for-profit na providers in delivering high quality legal Handbook for Budget Presentation and tional membership organizationdedicated services; Standards and Evaluation Design for Ap todeveloping and supporting highquality 5 conducting national pilot projects to pellate Defender Offices. legal help for poor people in America, developadvancedtechniques and systems NLADA’s goal is to ensure that all of for legal services; 6 advocating directly for legal services people - those accused America’s poor before national and state legislative, ad of crimes as well as those with civil com ministrative, and judicial bodies; Capital Report plaints - canget quality legal help when 7 informing the public about legal ser they need it. vices and publicly advocating the right of Death Penalty Litigation Section mem poor persons to high quality legal ser bers work with NLADA staff to produce Capital Report, a newsletter published NLADA members- over 25,000 - are vices. 6 primarily programs that provide civil timesa year that features articles on trends legal aid and criminal defense services to in the trial, appeal and conviction stages poorpersons. Aboutl0%ofallcivillegal of capital cases. Capital Report subscrip aid offices and criminal defense services tions are available to those working on or NLADASections in the United States are members. - interestedin the defense of deathpenalty cases, but are notavailable toprosecutors. Much of this work is done through For maximum impact NLADA’s efforts NLADA’s staffand the different sections are concentrated on the issues and of the association. Some of these sections problemsthat directly affect legal services include: forpoor persons. NLADA represents no 1 Appellate Defender Section, NLADA Training clients directly. 2 Death Penalty Litigation Section, 3 Defender Trainer’s Section, NLADA has also established training 4 Women’s Issues Section, events designed to aid defenders and as 5 Legislative Advocacy Section, signed counsel in their work.Recent train ings include NLADA’s annual death NLADAActivities 6 Indigent Defense Services Section, 7 Juvenile Law Section, penalty training evententitled Life in the 8 Paralegal/Legal Assistants Section and Balance: Defending Death Penalty Cases, 9 Private Bar Section. a Defender Management training, and the first Appellate Defender training in 10 Ensuring thatpoor people getquality legal years. service is pursued in several different ways. Some of NLADA’s activities in NLADA Projects For more information about NLADA’s clude: Defender Division, please call or write us 1 building support for legal services at: among public officials, community Section members often work with groups, public interest groups, organized NLADA staff to produce national barassociations,individual attorneys, and projects.Some recent projectsofNLADA MARY BRODERICK business organizations and leaders; include the: Director,Defender Division 2 coordinating the national activities of NLADA 1625 K Street, NW 8thFloor legal services advocates, informing them 1 Standards forthe Appointment and Per of events affecting legal services, and formance of Counsel in Death Penalty Washington. DC 20006 fostering discussion and communication Cases, 202 452-0620

June 1990!fhe Advocate 16 ______NLADA Individual Membership Application

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Check the boxes below of those sections you wish to join. Amounts shown are annual dues. * To enroll in an NLADA sec tion, you must either: 1. be a current NLADA individual Member; OR 2. be appointed by a current Program Member to that specific section." o A Appellate Defender Section, $5 sioo o K Social Services Section, $10 sioo 0 B Defender Trainers Section, $10 36110 o L Student Legal Services Section, $5 36710 O C Native American Section, $5 soo o MWelfare Section, $5 36720 o 0 Juvenile Law Section, $5 36300 o N Communications Section, $10 36130 o E Legislative Advocacy Section, $5 t54O0 o 0 Rural Advocacy Section, $5 36540 o F Disability Rights Section, $5 36500 o P Indigent Defense Network"’ o G Paralegal/Legal Assistants Section, $5 36510 O Q Farmworker Law Section, $5 36115 O H Private Bar Section, $10 36520 o R Death Penalty Litigation Section, $10 36150 o I Civil Trainers Section, $10 36105 o S Women’s Issues Section, $5 36725 o J Senior Citizens Section, $5 36600 Cliants maintaining currant NLAOA Client Individual Memberships may participate as members ol sections without paying section dues. ‘Current NLAOA Program Members may designate one person as a m.mD.r of each section. fj by the AMA Bar lntotmst’Osi Project- no dues required.

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Please r.tum to: National Legal Aid and Defender Association Membership Department 1625 K Street, N.W. Eighth Floor Washington, D.C. 20006 202 452-0620 June 1990/TheAdvocate 17 RACIAL BIAS IN CRIMINAL JUSTICE SYSTEM

RACIAL/ETHNIC BIAS IN THE COURTS Racial and ethnic bias in thecourts is a topic that has generated a good deal of attention inside iT’S ALL THINGS CONSIDERED,.,I’m thelegal profession in recent months.Materialson this issue have been coliected by theNational Noel Adams. Almost 1 out of every 4 Center for State Courts NCSC Information Service. young black males in this country is in prison, in jail, on probation, or on parole, In March, The National Law Journal reported that NCSC would be acting as a clearinghouse That’s 1 in 4. Among young white males for information generated following creation of the National Consortium of Commissions and the number is 1 in 16. The number of Task Forces on Racial/Ethnic Bias in the Courts. The Consortium was created as a way for young black men in the criminal justice groups studyingbias in various courts "to shareourresearchgoalsand methods, [and] to provide system is now higher than the number ablueprintforfutureefforts ofothertaskforces,"according to aquote fromEdnaWells Handy, executive director of New York’s Judicial Commission on Minorities. going tocollege And the annual cost for incarceration is estimated at 23 billion NCSC stafflawyerPhillipLattimoreandintern JeremyD. Blankhave prepared 2 bibliographies dollars. There’s a new study about young containing materialsgenerated by, relevant to, or concerning the commissions and task forces black men in the criminal justice system. studying racial bias in court systems. The reportdoes not try toexplain whythe numbers are sohighforblackmen. In Racial/Ethnic Bias in the Courts Bibliography I lists 6 states New York, Washington, stead it looks at the end result. Con Michigan, Oregon, New Mexico, and New Jerseyand 1 Canadian province Nova Scotia that gressman John Conyers of Michigan have commissions or task forces, as well as the American Bar Association Commission on believes the current justice system is per Opportunities for Minorities in the Profession. Materials that have been produced to date by petuating the problem. these commissions which arc noted in the bibliography include questionnaires, memoranda, reports, press releases and pamphlets. John: "In prisons there’s little or no Questionnaires have been designedfor a number of different groups within or associated with rehabilitation, but there are fewer drug the court system, including: Questionnaire for Judges Relating to Judicial Selection and the treatment programs. There’s no job PerceptionofRacialFairness and Sensitivftyin the Courtroom NY, and SurveyQuestionnaire preparationandyou’re talkingabout apart for the 15 ABA-approved New York Law Schools Requesting Data on Admissions and of the community that’s experiencing un Placement Practices, Law School Environment, Minority Organizations, and Clerkships, etc. employment rates that hovers somewhere Memoranda cover a wide varietyof commission/task force concerns, for example: Memoran in the 30 and4O% of the rates ofun dum for Dr. Monica Holmes 12/5/88 regarding a sampling design and methodology for employment. So by increasing the distribution of litigator’s questionnaire NY; Memorandum to members of the Task Force on severity ofpunishment you’re guarantee Racial/Ethnic Issues that details personal contact assignments with representatives of special ing that you’ll need more cells, that it’s interest groups 8/29/88 Ml; andNew Jersey Administrative Office ofthe Courts Interoffice going to cost you more, and you’re going Memorandumon Suggestions forWorking with CommitteesfFask Forces June 6, 1985. to getrelatively little in terms of an effec tive criminaljustice result." Substantive reports contained in the bibliography are, to date, interim rather than final, e.g., Washington State Minonty andJustice TaskForce InterimReportMarch, 1989. Otherreports, as well as pamphlets and press releases, relate to the role of the commissions/task forcesrather Noel: The study calls it a failure of the get than to their conclusions, for example: Report of the New York State Judicial Commission on tough approach to crime control. Minorities; Pamphlet on the Michigan Supreme Court Task Force on Racial/Ethnic Issues in the Courts and Project and Activities Booklet, ABA Commission on Opportunities for Minorities in the Profession. John: "That tome is the one delicate and sensitive issue to which more decent The second NCSC list Racial/Ethnic Bias in the Courts Bibliography II, consists primarily of public officials have to repair so that we news clippings from several states. Italso refers to books,journals, andmiscellaneous materials can try to begin to geta rational discussion on thequestion of bias in court systems, such as: The Impactoft/se Ethnicity and Gender of about this increasing seventy of punish Defendants on the Decision to Reject or Dismiss Felony Charges, by Cassia Spohn et aL, ment whichhas, while it’s costus billions, Criminology, Volume 25, Number 1, 1987, pp. 175-91; Sex, Race, and the Law, by Jeanne has gotten us very, very little." Gregory book; and Information on theNwnber of Minority and Women U.S. Attorneys, U.S. Department ofJustice, January, 1988.

Noel: With regard to the crime rate, the Both bibliographies provide a"check-off" featurethat allowsreaders to indicate materialsthey study says that the gettough approachhas would like to receive from NCSC. There is no charge NCSC’s Information Service is put more people in prison and yet the supported by assessments from the states and byagrantfrom the StateJustice Institute; persons victimization rate hasn’t gone down. who seek and receive information are asked to complete an evaluation form. Personsrequest Couldn’t you argue it the other way, turn ing this information can also ask to be placed on a list to receiveupdated information as it is complied by NCSC. Contact Pirillip Lattimore Ill, National Center for State Courts, 300 it around and saythatthe people whohave Newport Avenue, Williamsburg, VA 23187-8798. Phone 804-253-2000. been doing the crimes are now in prison, therefore the crime rate hasn’t changed? NLADA, 1625 K Street, NW, 8th Floor Washington, D.C. 20006. Reprinted with Permis sion.

June 1990/The Advocate 18 John: "If that has infactbeenhappening, BLACK MALES IN PRISON we are doing this at such an incrediblecost of human resource of greatunfairness be cause what this report is suggesting is that what we have is a crinrina] justice system that is racist on impact if notby intention. Now just a word about what else could be happening since one and a half billion dollars of the 8 billion dollar drug budget under Mr. Bennett’s domain is going for federal prison construction, butthereisno treatment in any city available on demand from a person whois tryingto getoutfrom the evil of addiction."

Noel: What about the idea as outlined in the study to reverse the trend as you’re talking about, decriminalize some acts?

John: "Lights go on when you say decriminalize. What I have in mind is stopping adding on to the incredible prison sentence lengths, and that is not decriminalization. What we need are al ternatives to incarceration. What we do needis an additional complimentary study by G.A.O., for example, to study which parole programs are really working, and on what conditions and terms are they most effective." Judge Gary Payne, Dr. William C. Parker Noel: Your point is, and the point of the L to R study I gather is, that an entire generation young black leadership is being lost? "Ifyou want to learn about society, look from voter registrations, and many blacks of into its prisons," said one of the greatest do not vote. Also jury commissioners in Russian novelists, Fyodor Dostoyevsky, different counties do not select many John: "It devastates in so many ways. who was in prison himself. blacks to be onjuries." Not only the individual tragedy but the family, the community, the national productivity, the whole possibility of Nationally, blacks go to prison at a rate Monahan’s office defends people against women starting families with these men nearly 10 times that of whites 1984figures the death penalty. In his recent book who would have been there but who are indicate. But in February 1990, a national Black Robes, White Justice, Bruce report was releasedthat states 1 in4young Wright, a New York State Supreme Court not by virtue of incarceration. Between these factors, what we have is a social black American men mainly aged from justice wrote about the disparities in the tragedy that goes even beyond criminal 20 to 29 years are in prison or jail or on death penalty. "Since executions were probation or parole. "These figures finally resumed in 1977; a black whokillsa white justice policies." give some substance to the cries of geno is about 60 times more likely to be ex cide of young black males," said Marc ecuted than a black who kills a black. Noel: Talking with us from his office in Mauer, the author of the study "Young Even though there have been 2,500 white Detroit, Congressman John Conyers dis Black Men and the Criminal Justice Sys on black homicides nationally since 1977, cussing a study released today by The tem: A GrowingNational Problem"by the not a single state has yet put to death a Sentencing Project, a group which Sentencing Project that seeks sentencing white who killed a black. A black who promotes sentencing reform. reform. kills a white is 10 times more likely to be executed thensomeone whokills a National Public Radio "In Kentucky, the black population is 8%, Wright said. 2025 M Street, N.W. but 32% of the population in our prisons Washington, DC 20036 are black," said Ed Monahan, assistant "Hatred of blacks can stem from social 202 822-2000 public advocate withthe stateDepartment isolation and fear ofblacks," said District of Public Advocacy and member of the Court Judge Gary Payne, the only black "This report war originally reported on the Pro-Life Committee of the Catholic Con judge in the central Kentucky area. NPR news and information magazine, "All ference of Kentucky. "Ifyou are a black "There are more poor young blacks who Things Considered"on Februay26, 1990and defendant you get treated differently by drop outof school and do nothave oppor is printed with the permission of National prosecutors, judges, and juries. Poverty tunities. Most do nothave adequateblack Public Radio. Any unauthorized use is and economic factors are manifestations male role models and often end up in prohibited." of racism and cause many blacks to go to criminal activity." prison. Prosecutors also have a way of striking blacks from juries without cause. The prison figures for Kentucky of black There arenot many blacks in the jury pool males incarcerated are high. Robert Wet- to start with because the names are taken

June 1990/The Advocate 19 ter, executive staffadviser of the Correc feared by the white population," said black PhDs that can go into inner city tions Cabinet, reported the numbers as of Parker. "Black men have been emascu schools and spend a week working with December31, 1989. Therewereatotalof lated, and this attitude still exits black males. Young people can rub 7,842black and white men in Kentucky’s psychologically today. White women are shoulders with college and bank presi 13 prisons, including 1 American Indian. taught at an early age to fear black men dents. More successful black males need Of this total, 5,486 are white men and because they are described as hostile, to be surrogate fathers of those sons of 2,356 are black men. Much lower are violent, and aptto rape you." single black mothers. Black mothers are black and white women prisoners with a veryprotective oftheir sons and they need total of 447, with 170 being black. more support in order to cope with the "Integration has hurt the black male be repression in our society," Dr. Parker as cause of expectations of white teachers. It serts. In the national study, Mauerreported the isaznazingtoseekidsinHeadstart-they number of young black men under the are bright and have aspirations. By the 4th control of the criminal justice system at grade, their aspirations are gone," he said. The national report on prisons contained 609,690, which is greater than the total "When you are in a white environment, many recommendations. Some of these number of black men of all ages enrolled black men in particular areunder a micro were diversion and dispute resolution in college436,000 as of 1986. For white scope and expected tobe ‘superior,’ which processes for first-time offenders; victim males the comparable figures are causes muchbitterness that leads to crime restitution and community service 4,600,000 total in higher education and and jail. We are lousy criminals because programs; drug treatment programs; in 1,054,508, ages 20 to 29, in the criminal we getbusted mostly due to prejudice." tensive probation supervision, employ justice system. ment and education programs; uniform sentencing procedures; and realization In order to resolve some of the causes of the "get tough approach" is notwork more black men being in prison, Dr. that At the University of Kentucky, there is a ing. ratio of 8 black females to 1 black male Parker has traveled to many areas with graduating, according to Dr. William seminars and workshops. When he retires Parker, vice-chancellor ofminority affairs in July of this year and moves back to LINDA HARVEY and recent 1990recipientof a brotherhood Princeton, New Jersey, he plans to spend INTERCOM award from the Bluegrass Chapter of the more time trying to reach black males. Kentucky Council of Churches National Conference of Christians and "Wemust take young black males and put 1039 Goodwin Drive Jews. them in a class with a black teacher. They Lexington, KY 40505 have done this successfullyin Florida, but people screaming it is unconstitu "Society’s perception of black males is now are Reprintedfrom Intercom, apublication ofKen part of the cause of more black men in tional." tucky Council of Churches, by permission. slavery where men Copyright, 1990, Kentucky Council of Chur prison. It stems backto ches. were separated from women and were "I am putting together about 20 retired

Civil Commitment Materials To promote improved legal representation of persons subjectedto involuntary civilcommitment, the American Bar Association’s Commission on the Mentally Disabled has developed a variety of training packages for lawyers and judges. The components of these packages are: Involuntary Civil Commitment: A Manualfor Lawyers and Judges; The National Center for State Courts’ Guidelines for Involuntary Civil Commitment; a video entitled Commitment to Advocacy; an up-to-date printout of citations and case summaries of all civil commitment cases covered in the Reporter; and a two-day training workshop, which can be conducted by the Commission’s staff or by others who want to adapt our format to conduct their own workshops. Involuntary Civil Commitment: A Manualfor Lawyers and Judges 1988 is available for$30; for orders of 10 or more, the price is $20 per copy. Commitment to Advocacy 1989, a VHS video, is available for $50 per copy. The video, plus one copy of the manual, is available for $75. The workshop package, designed for adaptation on the local level, includes one copy each of: Involuntary Civil Commitment: A Manual for Lawyers and Judges; Commitment to Advocacy; Mental Disability Law: A Primer; Guidelinesfor Involuntary Civil Commitment; selected civil commitment article reprints from the Mental and Physical Disability LawReporter; the case summary package printout and the workshop instructor’s manual. This complete workshop package is available for$195; extracopies of the Manual, the Primer and the Guidelines for group participants are $32 per participant. Commission-conducted workshops forup to 50 people areavailable at a negotiable price. For more information, please contact the Commission at 1800 M St., N.W., Washington, D.C. 20036, 202 331-2240.

June 1990/The Advocate 20 PUBLIC ADVOCACY ALTERNATIVE SENTENCING PROJECT* PAASP Part of the Solution to Jail and Prison Overcrowding

Dave Norat

Funding for Continuation of the benefitsof punishment options are recog defense attorneys, sentencing specialists, nized by the courts, the 1992 Kentucky prosecutors and probation and parole of Public Advocacy Alternative General Assembly will again havethe op ficers on punishment options. This train Sentencing Project Approved by portunity to continue its responsibleuseof ing will replicate an earlier training ses the Kentucky General Assembly. public fundsby expanding the PAASP to sion held in January, 1988. additional counties throughout the Com The 1990 Kentucky General Assembly monwealth. Kentucky is one of 3 recipients nation approved the Governor’s recommended wide to receive the award. The ability to appropriation of $104,700 in FY 1990-91 Judicial ‘framing Grant Awarded conduct a session involving the many dif and$109,500inFY 1991-92for continua ‘framing on components the PAASP. to DPA to Conduct ferent of the criminal justice tion of Sentencing Options system provides a sound basis of under standing and an opportunity to exchange Funding at this level will allow 4 sentenc A judicial training grant awarded by The experiences concerning punishment op ing specialists working withdefense attor Sentencing Project enables the DPA and tions. This is especially true now that neysinprojectareas topresent to thecourt the Administrative Office of the Courts to punishment options are here to stay in punishment options otherthan incarcera conductajoint training session forjudges, Kentucky. tion.

If fully funded the program would have SELECTEDCUMULATIVESTATISTICS CONCERMNG CLOSED CASES increased the number of sentencing specialists to 18 across the state. A full staffwould have put the courts in a posi *es Referred to PAASP 213 tion to adopt 274 non-prison punishment Punishment Plans Presented in Court 130 options over the 1990-92 biennium thus Punishment Plans Accepted in Whole or in Part 65 50% decreasing the Corrections Cabinet’s Jail and Ptison Beds Made Available to Corrections 65 projected needof9,325 prison beds by the end of FY 1992 by 274 beds. DEFENDANT RESTITUTION The action taken by the Governor and the General Assembly in recommending and Total in Plans Total in Plans appropriating funds for the PAASP is a Presented to Courts Granted by Court Dollars to Victim $68,073.03 $39,360.12 recognitionthatKentucky cannot build its ServiceFees $ 5,243.11 $4,625.61 way out of its jail and prison overcrowd Court Costs $ 3,549.26 $2,624.26 ing crisis. A recognition that alternatives Fines $4,138.50 $2923.00 must be developed. Alternatives such as Miscellaneous Dollars $ 1,680.00 $1,170.00 the PAASP which area more responsible Miscellaneous Hours 100.00 -0- use of public funds while achieving the Community Service Hours 1,355.00 925.00 goals of punishment and community safety. RESOURCES TO BE UTILIZED BY THE DEFENDANT** Withoutthe support of the Developmental Disabilities Planning Council, the Public Substance Abuse - In Patient 37 23 Welfare Foundation and former Correc Substance Abuse - Out Patient 59 40 Mental Health/Mental Retardation 44 19 tions Secretary, George Wilson, the VocationalRehabilitation 15 8 PAASP would nothave been available as Adult Learning Centers 56 26 part of the solution to the current jail and Vocational Schools 17 5 prison overcrowding crisis. Family Counseling 18 3 Sexual Abuse Counseling 5 I Over the course of the 1990-92 biennium Other 57 23 defense attorneys, using sentencing tSome cases involve the same client due to charges in d/7erent jurisdictions or ASP specialists, will continue to present Mod/fication punishment options to the court As the **A defendant can iailize more than one resource.

June 1990/The Advocate 21 ‘PAASP is presently ajoint private wid state a To review Kentucky’s statutory the Court of Justice and the Attorney funded multi-agency effort involving the punishment structurefor appropriateness Department ofPublicAdvocacy,TheDevelop and consistency; h To provide the Corrections Commis mental Disability Planning Council and the b To investigate Kentucky’s sentencing, sion with an interimreport on its find Public W4fare Foundation. The initial gran probation and parqletmnds ings; torwastheKerstuckyDevelopmentalDisabifty c To determine what effect Kentucky’s iToproposeto the I992GeneralAs- Planning Council DDPC. Formore h’.forma present sentence requirements and sen sembly legislation based on the Task tion contact Dave Norat at 502564-8006. tencing practices have on the prison Force’s findings. population; d To investigate sentencing practices as Members of the Legislative Task Force applied to men, women, and racial and will serve for 2 years and shall consist of Kentucky’s Jail and Prison ethnic minorities; a representative from each of the follow e To investigate sentencing disparities ing organizations or constituencies: Overcrowding crisis to be between differentjurisdictions in Ken Addressed by a Legislative ‘Thsk tucky; a Attorney General’s Office; Force and a Newly Created KY f To investigate the use of and deter b Parole Board; State Corrections Commission mine the effectiveness of alternatives to c Corrections Cabinet; incarceration. A sampling of alternatives d Department of Public Advocacy; are intensive and advancedparole and CommonwealthAttorney’sAssocia On March 30, 1990, Governor Wallace probation supervision, home incarcera c Wilkinson signed into law, House Joint tion; tion, rehabilitation treatment and counsel I County Attorney’sAssociation; Resolution No. 123 HIR 123. HJR 123 ing, workreleaseand community service; g Jailer’s Association creates a legislative task force on senten g To make recommendations concern h CircuitJudge or Retired Circuit cesand sentencing practices chargedwith ing sentencing and paroleoptions to the Judge; the following responsibilities: Governor, the Secretary of Corrections, i Law Enforcement Agency; j House Approiiiationand Revenue Committee; k House Judiciary Committee; 1 Senate Appropriations and Revenue PROBATION MUST BE CONSIDERED Committee; m Senate Judiciary Criminal Commit May it please this Honorable Court: tee; n Statewide Victims’ Group; ThE SUBSEQUENTLY ENACTED, PURPOSEFUL AMENDMENT o Criminal Justice or Law School Facul TO KRS 533.010 REQUIRES TRIAL JUDGES TO CONSIDER ty; "PROBATION WITH AN ALTERNATIVE SENTENCING PLAN" IN p General Public. ALL CASES. HJR 123 was passed as an emergency piece oflegislation going into effect when Your Honor, on April 19,1990, Governor WallaceWilkinsonsigned House Bill signed by the Governor on March 30, 603 which became law on July 13, 1990. House Bill 603 amends KRS Chapter 1990. This gives the Task Force the max 533.0 10, the sections which deals with Kentucky’s presumption forprobation. imum amount of time possible to com The amendment to KRS 533.0 10 establishes a new class of probation, "probation plete its work before the 1992 session. with an alternative sentencing plan." This new class of probation must be considered in this and every case that comes before you in which a defendant "...pleads guilty to or is convicted of a crime punishable by imprisonment...." House Bill 603 signed by the Governor on That Your Honor is pursuant to a new section of KRS Chapter 500. This new April 19, 1990, could be labeled the om section of KRS Chapter 500 is also a part ofHouse Bill 603 and became law on nibus corrections bilL HB 603 deals with July 13, 1990. the administration of the Corrections Cabinet, correctionalprograms andmakes changes in the law which affects sentenc Your Honor, this new class ofprobation,probation withan alternative sentencing plan, has none of the sentencing prohibitions which exist for other classes of ingconsiderations, presentence investiga probations found throughout the Penal Code [See, e.g., KRS 532.045; KRS tions and shock probation. 533.060. This is due to the fact your honor, as Iunderstand Kentucky law, to the failure of the legislature to specifically include the qualifying words "proba An amendment to KRS 500 specifically tion with an alternative sentencing plan" in those "disqualifying" statutes, and addresses the judge’s obligation to con due to the fact that those disqualifying statutes are not applicable to this "sub sider alternatives to incarceration. An sequently enacted, purposeful" amendment to KRS 533.0 10. amendment to KRS 533.010 appears to have established anew class ofprobation, will probation with an alternative sentencing YourHonor, I thinkyou find that you onceagain have thediscretion to review plan. This new class of probation may be each case on an individual basis and determine if the goals of communitysafety, an option that does not come under exist restitution, retribution, and treatmentcanbe trulymet by incarceration or perhaps better served by probation with an alternative sentencing plan. ing sentencing restrictions.

This discretion enables you to betterutilize the state’s finite resource of incar The major thrust of House Bill 603 is the creatiort of the Kentucky State Correc ceration forthe more violentdefendants that come before you. tions Commission. A Commission that deals with the administration of the Cor Your review and consideration of probation with an alternative sentencing plan rections Cabinet and its programs. for my client is now mandated by statutes and your consideration is greatly appreciated. The Kentucky State Corrections Commis sion is charged with the primary respon

June 1990ffheAdvocoJe 22 illustration by Kevin Fitzgerald sibility of developing and maintaining a 6 This list highlighting some of the respon year plan for Corrections Cabinet opera sibilities of the Kentucky State Correc DPA MOTION FILE tions. This plan is to include both con tionsCommission, indicates a recognition struction and program elements based on by the Kentucky General Assembly and input not only from the Corrections the Governor that the prison andjail over Cabinet but from the groups represented crowding crisis needs the involvement of MOTIONS COLLECTED, on the Commission and ..."Other public the total Kentucky criminal justice system CATEGORIZED, LISTED a and private agencies and citizens with a if solution is to be found. A solution The Department of Public Advocacy has vested interest in corrections." This 6 year which requires a continuous coordinated collected many motions filed in criminal plan will undergo semiannual changes effort with communication between all cases in Kentucky, and has compiled an and will take into consideration current parties involved in the criminal justice index of the categories of the various me trends and needs in order to maintain its system. The Commission shall consist of tions, and a listing of each motion. Each value as a planning document for Correc 12 members who are asfollows: motion is a copy of a defense motion filed tions and the criminal justice system. in an actual Kentucky criminal case. Many motions include memorandum of law. 1 The Attorney General They were updated in April, 1989. Based on this 6 year plan the Commission 2 The Public Advocate will be charged withthe responsibility of 3 The Chairman of the Parole Board assisting the Correction’s Cabinet in 4 The Secretary of the Justice Cabinet CAPITAL CASES preparing and submitting legislative and 5 The Secretary of the Corrections The motion file contains many motions budget proposals. To developin coopera Cabinet which are applicable to capital cases, and tion with DPA, the Administrative Office 6 The Secretaryof the CabinetforHuman many motions filed in capital cases on of the Courts, the Prosecutors Advisory Resources non-capital issues. Council and other parties, a schedule of 7 A County Jailer chosen by the Gover punitive and rehabilitative alternatives to nor imprisonment for dissemination and use 8 A sititing or retired Circuit Judge COPIES AVAILABLE by judges, prosecutors and defense attor chosen by the Governor from a list of 3 A copy of the categories and listing of neys. submitted by the Chief Justice motions is free to any public defender or 9 Two Criminal Justice Professionals criminal defense lawyer in Kentucky. who are familiar with correctional re Copies of any of the motions are free to Other responsibilities of the Kentucky public defenders in Kentucky, whether State Corrections Commission are: search, theory and program implementa tion, appointed by the Governor full-lime, part-time, contract, or conflict 10 Criminal defense advocates can obtain a To receiveregular reports from the A representative from the Law Enfor copies of any of the motions for cost of Coxrections Cabinet as to their progress cement Agency appointed by the Gover copying and postage. Each DPA field of in complying with the six year plan; nor fice has an entire set of the motions. b To review and make recommenda 11 A Commonwealth’s Attorney chosen tions to the Cabinet when the Cabinet by the Governor from a list of 3 submitted has made any significant changesin by the Prosecutors Advisory Council. HOW TO OBTAIN COPIES programs, policies, procedures, staffing, Ifyou are interestedin receiving index classification, or any othercomponent of an Corrections opezaliosis which departs As initially stated this article discusses ofthe categories of motions, alisting of the onlyone part ofHouse Bill 603. There are available motions, or copies of particular from the six year plan; motions, contact: c To assist the Legislative Research other changes brought about by KB 603 Committee in the preparation of Correc which will need to be discussed but at a tions impact statements forproposed later time. legislation; TEZETA LYNES d To make recommendations to the DPA Librarian DAVE NORAT 1264 Louisville Road Governor and the General Assembly on Frankfort, KY 40601 legislation concerning sentencing,proba Director, Defense Services 502 564-8006, ext. 119. tion and parole which would effect the Frankfort Corrections Cabinet.

June l99OfThe Advocate 23 WEST’S REVIEW

Linda West

KENTUCKY COURT OF nude. The defendants argued that the of jurisdictional problem since the order was fense as createdinKRS 531.310 addresses entered pursuant to a voidjudgment. The APPEALS the commercial use of minors in sexual district court should instead have vacated performances, andnotconductrequired of the judgment. OTHER CRIMES/USE OF A a minor in a family setting. The Court MINOR IN A SEXUAL rejectedthe argument DOUBLE JEOPARDY-RECEIVING PERFORMANCE/AMENDMENT AND DISPOSING OF STOLEN OF INDICTMENT/CONFESSION Among the offenses charged were some PROPERTY/BIFURCATED TRIAL INTOXICATION OF HANDGUN Gilbert v. Commonwealth allegedtohaveoccurredin 1985. Attrial, POSSESSION OF the prosecutor was permitted to amend the BY CONVICTED FELON 37 K.L.S. 3 at 10 CHARGE March 2,1990 indictmentto charge that the offenses on curred in 1986. Defense objection that the Cooley v. Commonwealth defense had prepared based on the fact 37 K.L.S. 4 at 2 Defendant husband and wife were con March victed, respectively, of committing and that the defendants did not marry until 23, 1990 1986 was overruled. The Court held that complicity to commit attempted rape, use Cooley was convicted of receiving stolen of a minor in a sexual performance, and the amendment of the indictment was per first degree wanton endangerment. The missibleunderRCr6. 16 because"thesub property in Mason County. He was sub victims were the wife’s daughters by a stantial rights of the accused are not sequently convicted of disposing of the previous marriage. prejudiced" since the main thrust of the same property in Bourbon County. defense was actually a denial of the charged offenses. The Court first held that introduction of The Court rejected Cooley’s argument evidence that the husband supplied the that his Bourbon County conviction con daughters withmarijuana and liquor was The Court upheld the introduction of the stituteddoublejeopardy. The Court noted defendant husband’s statement to police that the offense denounced by KRS notinadmissible evidenceofother crimes. either The evidence was properly admitted as while he was intoxicated. The Court cited 514.110 may be committed by proof of the defendant’s effort to induce Hamilton v.Commonwealth, 580 S.W.2d receiving, or disposing of,stolen property. the victims to have sex with him. 208 Ky. 1979fortheprinciplethatinthe Citing Blockburger v. United States, 234 absence of hallucinations or confabula U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 tion intoxication does not require the ex 1932 the Court held that "[tihe evidence The Court upheld the wife’sconvictionof clusion of a confession. to prove disposition is different than that complicityto commit attempted rape after used to prove receiving stolen property. distinguishing Knox v. Commonwealtlt, DUI-JURISDICTION As a result, the doublejeopardy problems Ky., 735 S.W.2d 7111987. In Knox, the McIntosh v. Commonwealth do not exist in this case." The Court dis Court held that the minorvictim’s mother 37 K.L.S. 3 at 16 tinguished Jackson v. Commonwealth, could not be convicted of complicity on March 9, 1990 670 S.W.2d 828 Ky. 1984 in which the the theory that she had a "legal duty" to defendant’s convictions of theft and prevent her child’s abuse. The Court In this case, the Court held that a trial receiving stolen property involving the found the case before it to be factually commissioner does not have jurisdiction same property were held to violate the distinguishable since the wife actively to accept a guilty plea to a charge of DUT. double jeopardy prohibition. Jackson was told the victim to get in bed with the Under SCR 5.03aiii a trial commis inapposite to Cooley’s situation since in husband, whileinKnoxthemother merely sioner has jurisdiction to accept a guilty Jackson "the evidence to prove both stood passively by. plea in a case in which the possible sen crimes is virtuallythe same." tence is limited to a fine of $500 or less. The Court also upheld the convictions of He may notaccept a guilty plea to a charge The Court additionally held that the trial use of a minor in a sexual performance. ofDUIsince that offense maybe punished court complied with the procedure man The convictions were based on the by imprisonment An order of the district dated by Hubbard v. Commonwealth, 633 defendant’s acts offorcing the victims to court, amending the sentence imposed by S.W.2d 67 1982 when it bifurcated the perforni various household chores while the trial commissioner, didnotcorrect the trial of a charge of possession of a hand-

This regularAdvocate column reviews the publishedcriminal law decisions of the United States Supreme Court, theKentucky SupremeCourt, and the Kentucky Court of Appeals, except for death penalty cases, which are reviewed in The Advocate Death Penalty column, and except for search and seizure cases which arc reviewed in The Advocate Plain View column.

June l99ofrheAdvocate 24 gun by a convicted felon so that the jury prior felony convictions at the sentencing that his conduct was reckless rather than was unaware when bearing the receiving phase through Department of Corrections intentional, thus justifying a fourth degree stolen property charge of Cooley’s status records rather by the judgmentsof convic assault instruction. In rejecting Adkin’s as a felon. Judge Dyche dissented in part. tion. The Court of Appeals acknowledged argument, the Court cited the Commen that this was not the best evidence and tary to the KRS 501.0204 definition of DOUBLE JEOPARDY-SETTING would nothave been sufficient to prove a "reckless," which states that "reckless ASIDE DIRECTED VERDICT OF prior felony in PFO proceedings. How conduct involves inadvertent risk-crea ACQUiTTAL ever, the Court held that "[s]uch business tion." The Court then stated "[ut is dif Campbell v. Commonwealth records as certifiedDepartznentofCorrec ficult to see howa person could argue that 37 K.L.S. 4 at 6 tions reports or an inmate’s Resident pointing a gun at another person at close March 30,1990 Record Card are trustworthy documents range and pulling the trigger admittedly for purposes of proceedings pursuant to one time, if not three times, was inadver At Campbell’s trial, a critical prosecution KRS 532.055." tent risk-creation." witness, who had waited for two days to testify, disappeared just before being In Poston’s case, the Court rejected KENTUCKY SUPREME called. A four day continuance was Poston’s argument that the trial court COURT granted the prosecution, but the prosecu erred in refusing to instruct the jury on his tion remained unable to produce the wit intoxicationdefense. The Court noted that CONSTITUTIONALiTY OF KRS ness and so announced closed. The trial Poston did not claim that he had blacked 218A.99016-TRAFFICKING judge then granted a defense motion for out or suffered a memory loss and held WITHIN 1,000 YARDS OF directed verdict, but before the jury was that "[t]here was not sufficient evidence SCHOOL discharged the missing witness arrived. that he was too drunk toknow whathewas Cooper v. Commonwealth The trial court then set aside the directed doing to warrant a jury instruction on in verdict 37 K.L.S. 3 at 21 toxication as a defense." March 15,1990

The Court of Appeals held that it did not The Court found no error in the introduc KRS 218A.99016 provides for en offend the constitutional guarantee tion of an out-of-court identification of hanced sentences forpersons convictedof against double jeopardyfor the trial court Poston by the robbery victim based on a trafficking within one thousand yards of to set aside the directed verdict since the show-up an hour and fifteen minutesafter any school. Cooper challenged the statute jury had not yet been discharged. KRS the robbery. The Courtadditionallyfound as unconstitutionally vague and over- 505.030 bars another prosecution where no abuse of discretion by the trialjudge in broad since an individual may not know "[t]he former prosecution resulted in a determining that jurors had not violated he is within one thousand yards of a determination by the Court that there was their oaths by discussing the case with an school. The Court rejected this argument: insufficient evidence to warrant a convic individual hostile toPoston. "The statute is not over broad simply be tion." The Court of Appeals cited the cause the appellant maybeunawareof the Commentary to the statute in support of proximity to a school" its holding that the statute applies only Fmally, the Court held that a 20 year old "when an initial prosecution terminated felony conviction was properly admitted in a determination by the trial court, after atPoston’s bifUrcated sentencing hearing. The Court also held that Cooper was not hearing the evidence, that the defendant’s entitled to a directed verdict because the conviction would have been unwar POSSESSION OF COCAINE- commonwealth offered no proof that ranted." In the Court’sview, "termination "USABLE QUANTiTY" RULE anyone had actually measured to deter would have occurred only at the point the Commonwealth v. Shively mine that the offense was within the court fmally discharged the jury." 37 K.L.S. 4 at 13 prescribed distance. "A police officertes April 6, 1990 tified the location was within a thousand yards of a school, and this was not chal RICHARDSON IMPEACH lenged." The Court also upheld Cooper’s MENTPFRUTH IN SENTENCING- In this appeal by the commonwealth, the conviction under PROOF OF PRIOR commonwealth urged the Court to adopt KRS 506.120, the the rule the criminal syndication statute, citing Phil CONVICTION/INTOXICATION that possession of "any lips v. Commonwealth, INSTRUCTION/IDENTIFICATION amount" of cocaine will support a posses 655 S.W.2d6 Ky. sion charge. The Court instead 1983, for the principle that: "All the jury Hall v. Commonwealth adopted isrequired to believe forconvictionis that Poston v. Commonwealth the rule, applied by the trial judge, that a possessioncharge may only ‘five or more collaborated’...it is not 37 K.L.S. 4 at 13 be sustained necessary forthe commonwealth to show April 6,1990 upon proof of possession of a "usable quantity." Judge Lester dissented. that each participant collaborating in the scheme ollaborated with or was even In his appeal, Hall argued that the trial aware of the other participants." Justice court should havesuasponte admonished FOURTH DEGREE ASSAULT Combs dissented. the jury pursuant to Richardson v. Com Adldns v. Commonwealth 37 K.L.S. 5 at monwealth, 674 S.W.2d 515 Ky. 1984 WANTON MURDER/CAPITAL that his prior felony conviction could be April 13,1990 KIDNAPPING/DOUBLE considered only as it affected his JEOPAR Adkins appealed his seconddegree DY/UNANIMOUS VERDICTI credibility. The Court disagreed: ‘lie assault KIDNAPPING EXEMPTION trial court should not be required to ad conviction on the grounds that the jury /M1TIGATING monish thejury suasponte; defense coun should have been instructed on fourth de EVIDENCE sel should request the admonition." gree assault. Adkins testified at trial that Harris v. Commonwealth he did not intend to shoot his wife in the 37 K.L.S. 3 at 22 leg three times, but only to frighten her. March 15, 1990 The Court also held that itwas permissible Adkins argued that, based on this tes for the commonwealth to prove Hall’s timony, the jury could have concluded Harris and one Elniore intended to "play

June 1990/The Advocate 25 ajoke" on the victim by forcing hercar off mit an offense other than the kidnapping, SENTENCING-PRIOR CONVIC the road and then firing a gun into the air. he failed to meet the requirement of the TIONS/BOOTH However, the victimgotout ofhercar, and statute that the interference with the Templeman v. Commonwealth lunged at Harris. The gun discharged, kill victim’s liberty must not have exceeded 37 K.L.S. 3 at 29 ing the victim. Harris was subsequently that which is ordinarily incident to com March 15,1990 convicted of wanton murder, kidnapping, mission of the intended offense. "The and abuse of a corpse based on an act of murder of the victim clearly exceeds the At Templeanan’s death penalty trial on sexual intercourse with the dead victim. deprivation of liberty ordinarily incident charges of murder and robbery, the com to the harassmentappellant claims tohave monwealth was allowed to introduce The Court held that the evidence sup intended...." evidence of prior convictions for offenses ported instructing thejury on wantonmur committed subsequent to the charged of der. "[A]ppellant was canying a loaded, Harrisfinally contended that the trial court fense. Templernan contended this was cocked pistol,and admitted intent to point erred when it excludedmitigating penalty error. The Kentucky Supreme Court dis it at the victim but didnot admit intent to phase testimony by a clinical psychologist agreed. The jury was not permitted to cause her death. [Citation omitted]. The regarding Harris’ mental condition be consider the prior convictions as an ag wanton murderinstruction was proper." cause Harris had not given notice under gravatingfactor butwas instructed that if K.RS 504.0701. The Court held that ex it found the robbery to be a statutory ag clusionof theevidence washarmless error gravating factor it could then weigh Harris was convicted of capital kidnap Templeman’s prior record in setting a ping, which is committedwhen victim since other evidence of mental state was the heard by the jury and since the trial judge penalty. The Court endorsed this proce is not released alive. KRS 509.0402. dure. Harris contended that hecould notbecon heard the avowal evidence but chose to victed of capital kidnapping and sen accept the jury’s recommendedverdict. tenced to life without the possibility of parole for 25 years unless the jury found SPOUSAL PRIVILEGE/HEARSAY- one of the aggravating circumstances EXCITED UTFERANCE listed in KRS 532.0252a. The jury EXCEPTION/WANTON Instructions Manual found as an aggravating circumstance that MURDER/DEPOSiTION EVIDENCE/EXCLUSION the victim wasmurdered during thecourse OF The Department of Public Advocacy has of the kidnapping, but that is not a cir WITNESSES collected many instructions filed in cumstance enumerated by the statute. Smith v. Commonwealth criminal cases in Kentucky, and has com However, the Court pointed out, the 37 K.L.S. 3 at 28 piled an index of the categories of the statute permits the juiy to consider "any March 15,1990 various instructions in a 7 volume aggravating circumstances otherwise manual. Each instruction is a copy of a authorized by law." The Court held that The defendant’s wife was permitted to defense instructionfiled in an actual Ken the failure to release the victim alive was assert the spousal privilege at his trial. tucky criminal case. They are cat such a circumstance. However, the trial court did permit the egorized by offense and statute number. introduction of the witness’ statement They were updated in February, 1989. prior to her marriage to the defendant that ‘CAPITAL CASES The Court rejected Harris’ argument that the defendant had killed the victim. The it was doublejeopardy to convict him of Court held that the witness statement, both murder and capital kidnapping. The made to a police dispatcher following the In addition to containing tendered capital Court noted that the victim’s death was witness’ instructions, the DPA Instructions notan essential element discovery of the victim’s body, ofkidnapping but was admissible under the "excited Ut Manual contains instructions actually became relevantonly given in many at the penalty phase terance" exception to the hearsay rule. Kentucky capitalcases for in fixing punishment. "In the case at both the guilt/innocence and penalty bar...appellantwas nottwice punished for phase. the same act, but rather was punished for The Court held that an instruction on wan two separate coursesof conduct." tonmurder was justified where the defen COPIES AVAILABLE danthad said that he didnotmean to shoot the victim. Harris attacked the unanimity of the ver A copy of the index of available instruc dict as to his kidnapping conviction. The tions is free to any public defender or Fmally, criminal defense lawyer in Kentucky. jury was instructed that it might convict the Court held that no error was Copies of any of the actual instructions Harris under the alternate theories that committed in the exclusion of medical arc free to public defenders in Kentucky, Harrisrestrained the victim while intend records where the defense had failed to whether full-time, part-time, contract or ing 1 to commit a felony, or 2 to cause comply with the notice requirement of conflict. Criminal defense advocates can bodily injury or to terrorize. Harris con KRS 422.035. The videotaped deposition obtain copies ofanyof the instructions for tended that the evidence did not support of a witness was properly introduced the cost of copying and postage. Each the theory that he intended to commit a where the witness was unavailable and DPA field office has an entire set of the felony. The Court rejected this argument defense counsel was present at the deposi manuals. inasmuch as Harris’ subsequent abuse of tion, and that the trial judge didnot abuse the corpse was evidence that he had in his discretion in permitting a detective Ifyou areinterested in receiving an index tended to rape thevictim. who had remained in the courtroom to of instructions, or copies of particular in give cumulative testimony. stiuctions, Contact: The Court held that Harriswas not entitled TEZETA LYNES to the benefitof thekidnapping exemption DPA Libmian statute. KRS 509.050. The Court reasoned 1264 LouisvIlle Road that Harriswas notbenefited by the statue Perimeter Park West because, although his intent was to corn- Frankfort, Kentucky 40601 502 564-8006 Ext. 119

June 1990/TheAdvocate 26 The Court additionally held that Booth v. defendant’s statement obtained in viola by state courts even though they are Maryland, 482 U.S. 496, 107 S.Ct. 2529, tion of Michigan v. Jackson,475 U.S. 625, shown to be contrary to later decisions." 26 L.Ed2d 440 1987 did not apply to 106 S.Ct. 1404, 89 L.Ed.2d 631 1986, Justices Brennan, Marshall, Blackmun, testimony by the victim’swifeconcerning which bars police from initiating inter and Stevens dissented, stating that under the victim’scharacter since the testimony rogation of a formally charged defendant the Court’s decision, a federal habeas was introduced at the penalty phase, and oncehe has invoked his Sixth Amendment petitioner can obtain review only "by that the testimony was harmless since it right to counsel, may still be used to im showing that the statecourt’s rejection of "merely called to the attention of the jury peach the defendant so long as the state the constitutional challenge was soclearly that the victim...was not just a statistic." demonstrates the waiver of counsel to be invalid under thenprevailing legal stand voluntary. The majority analogized to its ards that the decision could not be SENTENCE FOR MURDER NOT decision in Harris v. New York, 401 U.S. defended by any reasonable jurist." SUBJECT TO PFO ENHANCE 222, 91 S.Ct. 643, 28 L.Ed.2d 1 1971 MENT that statements obtained in violation of a Offutt v. Commonwealth defendant’s Miranda rights may be used forimpeachment. Justices Stevens, Bren 37 K.L.S. 5 at 18 HABEAS CORPUS-TEAGUE April 26, 1990 nan,Marshall, and Blackmundissented on the grounds that the police violation was Saffle v. Parks of the right to counsel, not of a mere 46 CrL2193 In this case theCourt reaffirmed its hold March 5,1990 ing in Berry v. Commonwealth, 782 prophylactic rule as in Harris, and there S.W.2d 625 Ky., 1990 that sentences for fore the defendant’s statement should be unusable for any purpose. Parks sought habeas relief based on his murder are not assessed under KRS claim that a jury instruction at his death 532.060 and therefore are not subject to penalty trial that directed the jury to enhancement under the PFO statute. The "avoid any influence of sympathy" vio defendant’s failure to object to the lated the 8th Amendment. The majority indictment’s erroneous classification of HABEAS CORPUS-TEAGUE held that the ruling Parks sought con the charged murder as a Class A felony Butler p. McKellar stituted a "new rule" and so could not be rather than a capital offense did notopen 46 CrL 2165 considered on collateral review under its the ways for the prosecution to seek PFO March 5, 1990 decision in Teagise v. Lane, - U.S. enhancement. Moreover, because the 109 S.Ct. 1060, 103 L.Ed.2d 334 defendant’s conviction was for a capital InTeaguev.Lane,_U.S._, 109 S.Ct. 1989. Justices Brennan, Marshall, offense, he was entitled to an instruction 1060, 103 LEd.2d 334 1989, the Court Blacitmun, and Stevens dissented on the to the jury that he would be ineligible for held that new constitutional rules could grounds that Parks did not seek the crea parole for 12 years regardless of the sen not be announced in habeas corpus tion of a new rule but the application of tence imposed. Justice Leibson dissented proceedings. Subsequently, in Penry v. therulerecognizedinLockettv. Ohio, 438 in part. Lynaugh,_U.S. _109 S.CF. 2934,106 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 LEd.2d 2561989 the Court stated that 1978 and Eddings v. Oklahoma, 455 UNITED STATES SUPREME a decision announces a new rule "if the U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 COURT result was notdictated by precedentexist 1982 that the sentencer notbe precluded ing at the time the defendant’s conviction from weighing mitigating evidence; IMPEACHMENT became final." In McKellarthe Court fur Michigan v. Harvey ther enlarged its definition of what con LINDA WEST 46 CrL 2159 stitutes a "new rule." According to the majority, "[tihe ‘new rule’ Assistant Public Advocate March5, 1990 prin AppellateBranch ciple...validates reasonable, good faith in Frankfort In this case the Court held that a terpretations of existing precedents made

June 1990ffhe Advocate 27 POST-CONVICTION Law and Comment

JAIL RELEASE POLICY IRKS CAMPBELLJUDGES HOME INCARCERATION PROGRAM Three Campbell County judges want BEGINS IN PERRY COUNTY county officials to reconsider an agree ment that allows the jailer to release Beginning this week some prisoners will spend their time at home, instead of in the prisoners before they complete their sen Perry CountyJail,as part ofanewhome incarcerationprogram, according to officials, tences. Persons meeting certain requirements, and willing to go on the program, will wear a leg mounted transceiver that will monitortheir daily motions, via a computer. If they stray further than 100-foot from another transceiver, that is connected to their home Judges cannot tell if their sentences are telephone, officials will be alerted, according to Perry County Attorney Steve being carried out if Jailer Earl Ping can Tackett. Persons that intentionally violate the 100-foot range of thehome telephone release or refuse prisoners withouta court transceiver will be treated asjailescapees, Tackett said. Such escapes are considered order, DistrictJudge DanielGuidugli said. felonies and can carry prison sentences. The policy also puts police at risk if criminals discover that a jailer is refusing to aècept new prisoners, he said. Last week, court officials, withthe help ofprosecutors, screenedseveraljailprisoners aspotential candidates for thenew program. TwoofSl jail prisoners, on Friday, met program criteria and wished to participate in home incarceration, according to Guidugli arid Judges R. Neil Lewis and Tackett. Lambert Hehi sent a letter to the fiscal court objecting to a federal court agree ment that allows Ping to release prisoners. The Perry County Jailhas 52 beds, 33 of which are occupied by state prisoners or The letter is the latest outbreak in a run individuals awaiting trial forfelony offenses. Perry Circuit Judge Calvin Manis has ning dispute between the jailer and the discussed the program with a finn the county is contracting with. East Kentucky district court judges. Previously, only the Corrections Services, Inc. of Pikeville is furnishing equipment and monitoring district and circuit judges in the county facilities for the Perry program. had the powerto release prisoners early to relieve jail crowding, Guidugli said. Persons involved in the program will be responsible for the $10 per day fee CSI charges, according to Tackett. "It will not cost the county anything," Tackett said. In August 1989, the district judges or "I don’t believe it will have a very large impact on jail populations," Tackett said. dered Ping to accept all prisoners sent to But, the local prosecutor acknowledges that the new program will give them greater thejaiL Theythreatenedtoholdhimin opportunities to recommend jail sentences, court officials more freedom to impose contempt if he failed to do so. But U.S. incarceration. District Judge William 0. Bertelsman signed a new order that gave Ping Prisoners in the home incarceration have a trade off, Tackett said. With court authority to release prisoners according to approval they continue to work and can stay with theirfamilies. The trade off though certain guidelines. In addition, Ping may is a sentence that is 3 times longer. Three days on thehome incarceration program refuse to accept new prisoners when the countthesameas 1 dayinjail. A7-daydrunkdrivingsentencewouldbea2l.day jail population reaches 38, according to home incarceration sentence, at a cost of$210 to the prisoner. Fees paid for thehome the agreement. Campbell County Judge- incarceration program are in addition to fines and court costs. Executive Ken Paul said the fiscal court, along with Ping, sought the order. Ping should have the right to refuse or release Most useful for misdemeanor offenses, Tackett said theprogram can, and has, been prisoners, Paul said. used inconnection with somefelony offenses.’ Misdemeanors include theft charges under $100 and minor assaults and drug and alcohol violations. Felonies include theftcharges over$100. In district court the progrn can be used for both prisoners Guidugli said the judges were upset that unable to make bond and as a puniathient after a conviction. In circuit court the they were not notified about the new program is likely to be most applicable for prisoners unable to make bond. Similar order, he said. "As far as we’re concerned programs are in operation in Knott and Letcher Counties. "They say it home it’s a major change in policy," Guidugli incarcerationisn’t a whole lot better thanjail," Tackett said. said. Ping said no prisoners have been released or refused since the order was signed on April 11. He refused to com Reprintedby Permission from TheHazard Herald-Voice. April 26, 1990. ment further on the agreement. Paul said

June 1990t1’he Advocate 28 he is willing to discuss the issue with the the fiscal court has approved guidelines notifies the judges of at least 40 early judges. But he thinks the new agreement for Knauf. Although Kenton County releases a month. is a good idea. "If the jail is full, and there’s no opening, the jailer has the right In additionto thecountyjailer, theKenton to refuse prisoners," Paul said. County Fiscal Court has given Judge-Ex ecutive Clyde Middleton the authority to The 85-year-oldcounty jailhas long been pardon or release prisoners. But Mid a source of lawsuits by prisoners com dieton said he has no plans to use that plaining about its crowded condition. The authority. "I’m not going to release state Corrections Cabinet and Judge Ber anyone," he said. Middleton said people teisman previously have ordered that no who oversee the jail should handle the more than 38 prisoners could be held in release ofprisoners. The fiscal court only the jail. has a financial obligation, he said.

The countyis building ajail that will hold Paul said he’s not sure any judge-execu 130 prisoners. Paul said it should open in tive can have the authority to release 6 months. Because the county now must prisoners. Neither can the fiscal court hold prisoners waiting to get into state adopt guidelines for early release, he said. penitentiaries, it must pay to send its own That’s why fiscal court members asked prisoners outside the county, Paul said. Judge Berteisman to give Jailer Ping the authority, Paul said. He said a similar The state has the obligation to run the federal court order is in effect inJefferson corrections system, and the county is con County. But Guidugli foresees problems. "Up to this point, therehas beennoprob sidering ways to force the state to live up 1cm," Guidugli said. "But we’re getting to to that obligation, Paul said. He refused the warmer season, when we get more to disclosedetails. Thejail costs the coun alcohol and drug-related arrests. If an of ty $500,000 a year, Paul said. ‘Ilie jail operation is draining the budget of the ficercan’t make an arrest and put someone county,"he said. "Before welet Campbell injail, then he can’t do his job." Countygo bankruptbecauseofthe jail, we will take legal ways to protect the county treasury." PAUL A. LONG Kentucky Poststaffreporter In Kenton County, Jailer Jim Knauf has judges are notified when prisoners are April25, 1990 the authority to grant prisoners early released, they have no authority in the Reprinted with Permission of Kentucky release because of overcrowding. Kenton matter, Schroder said. He said the jailer County District Judge Wil Schroder said Post

PAROLE CONSULTANT TO ATrORNEYS NEW COLUMN

If you have a client scheduled for a Parole Hearing, you need to maximize his chances of obtainingparole. I have the expertise to assist you in helping your client. -Parole Hearing- Preparation for -Preliminary Parole Revocation Hearings -Final Parole Revovcation Hearings -SpecialParole Revocations -Sentencing- What Is Best for Parole -Plea Bargaining on CurrentCharges - The Effect on Parole -Special Considerations in Sex-Related Offenses My Expet-lenceIndudes: * Past Member of KentuckyState Parole Board- Six Years. Starling with the August issue, TheAdvo Assisted in thepreparation of current KentuckyParole Board Regulations. cate will introduce a new column authored by Mike Williams on pending appellate * Memberof Sex Offenders Treatment Subcommittee of the Kentucky Coalition Against criminal cases, to keep trial lawyers ap Rape and Sexual Assault. prised of issues that are before the Ken Education: tucky courts that will impact trial practice. * -Bachelors ofArts Degreein PoliticalScience -Associate of Arts Degreein Business If you have any pending cases that others Upon Request should be aware of, or that you think ReferencesAvailable should be discussed, pleaselet Mike Wil liams know by calling 502 564-8006, or DENNIS R. LANGLEY by writing him at: Department of Public 2202 Gerald Court, Suite #3 Advocacy, 1264 Louisville Road, Frank- Louisville, Kentucky40218 fort,KY 40601. 502 454-5786 1-800 525-8939

June 1990/The Advocate 29 THE DEATHPENALTY General Assembly BarsExceution ofMentally Retarded Offenders

Neal Walker On April 11, Governor Wilkinson signed Penry, with an IQ of 54, had contended only 2 voted against the bill. Other into law Senate Bill SB 172, thus insur that the 8th Amendment’s ban on cruel evidence of such a consensus exists in ing that Kentucky will not execute men and unusual punishment would be vio Kentucky. In December of last year a tallyretarded offenders convictedof capi latedby his executionbecauseit would be public opinion poli conducted by the tal murder. By enacting such a law, Ken disproportionate to his degree ofpersonal University of Louisville’s Urban Studies tucky became only the third state to culp ability. The Supreme Court dis Institute questioned Kentuckians about prohibitthe execution ofretarded citizens. agreed, finding that there was no national theirfeelings on the use ofcapital punish Georgia was the first state to enact such a social consensus that such executions are ment.Attüudes in the State ofKentucky on prohibition and Maryland soon followed repugnant to the concept of justice. theDeath Penalty, Vito & Keil Univer The federal Anti-Drug Abuse Act of "While a national consensus against ex sity of Louisville, December 1989. The 1988, which provides for the death penal ecution of the mentally retarded may researchers found that only 15% of Ken ty for certain drug related killings, also someday emerge reflecting the ‘evolving tuckians supported the execution of exempts the mentally retarded from ex standards of decency that mark the retarded offenders. ecution. A matter of weeks after Gover progress of a maturing society,’ there is nor Wilkinson signed SB 172, the Ten msufficient evidence of such a consensus nessee legislature followed Kentucky’s today." 109 S.Ct. at 2958. Indeed, SB 172 was supported by an im on such execu pressive array of organizations. Among lead and also enacted aban the many groups which endorsed the tions. Such a consensus isindeed emerging, and legislation were the Association For Kentucky, being the first state to pass an Retarded Citizens and the American As Passing a statutoryprohibition on the ex "MR"bill inthe post-Penry era, has made sociation on Mental Retardation, the ecution ofretarded offenders in Kentucky a major contribution to a future 8th largestlay and professional advocacy or is a significant development in the effort Amendment challenge to executing the ganizations,respectively, forthe menially to reduce the length of the executioner’s retarded. Tomorrow, after all, is another retardedcommunity. grasp. Many commentators believed that day. it would be difficult, ifnot impossible, to EXPANSION BILLS DEFEATED enactsuch a law after the Supreme Court’s Speaking of consensus, there can be no decision in Penrj v. Lynaugh, - U.S. doubt that there is an overwhelming con The legislative news getsbetterand better. ._, 2934, 106 LE.2d 256 109 S.Ct. sensus in Kentucky against executing For not only was an MR bill passed, but 1989. The Penry decision sealed off, at retarded offenders. SB 172 passed both several serious attempts to expand the least for thepresent, a claim that the Con chambers of the General Assembly by scope of the deathpenalty and to constrict stitutionforbids the executionofmentally stunning margins. Out of 138 legislators, appellate review of death sentences were retarded prisoners. The Court’s decision defeated in this session of the General caused concern that state legislatures would be loathe to legislate bans on ex ecuting the retarded since the nation’s highest court had found no constitutional KentuckyDeath Notes barrier to such executions. Numberofpeople executed since statehood 470 Indeed, although there hadbeena defacto Numberofpeople executed the electric chair 162 moratorium on killing retarded prisoners Numberof people who applied for the position ofexecutioner in 1984 150 following the Court’s decision to address Numberof people now on death row 26 the constitutional issue, Alabama could NumberofVietnam Veterans on death row I hardly wait until the ink was dry on the Numberof women on death row I Numberofjuveniles on death row - I Penrj opinion before strapping Horace Numberofinmates who have committed suicide I Dunkins, a mentally retarded offender Numberwhose trial lawyers have been disbarred or had their withanlQof65,intotheelectricchairhis licensesuspended 6 execution was a particularly grisly one; Numberof these lawyers who are now incarcerated I due to an improperly attached electrode, it Numberwho can afford private counsel on appeal 0 took repeated surges of electricity to kill Numbersentenced to death for killing a black person 0 him. And Louisiana executed Dalton Percentageof death row inmates who are black 20% with an IQ in the low 70’s on Percentage of Kentuckypopulationthat is black 7% Prejean Numberof black prisoners who were sentenced by all white juries I May 18. Numberof persons sentenced to death in Kentuckyand laterproven innocent 1

June 1990/ The Advocate 30 Assembly. DSM Ill-R. In fact, the AAMR defini tainty." Id. This means, then, that an of tion is found elsewhere in the Kentucky fender with an IQ score of 74 could still Statutes been In a year in which the death penalty Revised where it has used be diagnosed asmentallyretardedbecause dominates political debate in our largest for years in the context of involuntary of the margin of error. Of course, such a states and in which political candidates commitments. See KRS 202B.0l0l. diagnosis could not be reached absent ad posture for TV campaign advertisements ditional clinical evidence ofretardation. If in front of huge photographs of executed It is significant that the SB 172 definition the defense clinician diagnoses the client prisoners,, the Kentucky legislative suc ofmental retardationis a virtualblueprint as mentally retarded, counsel should cesses take on added significance. of the AAMR definition. This is because move to exclude the death penalty even if the score is in the low 70’s and abovethe the AAMR has published a classification statutory threshold. The argument in ad SB 172: PROHIBiTION ON EX manual which defines in considerable what such clinical dition to the standard error of measure ECUTING THE RETARDED detail just is meant by ment is that the arbitrary cut-off point terms as "adaptive behavior" and contained in the legislation should not be SB 172 provides that no one who is a "developmental period." See American MentaiRetardation, Clas followed where a qualified clinician, "seriously mentally retardedoffender", as Associationon working from the AAMR classification defuied in the Act, shallbe executed. The sification in Mental Retardation H. manual,has reached a diagnosisof mental modifier "seriously"shouldnot be viewed Grossman ed. 1983. Accordingly, coun retardation. as reducingthe class ofretarded offenders sel should familiarize herself with this protected by the Act to an extraordinarily manual in order to divine the meaning of imp aired sub-group of the mentally the clinical terms used in theAct Further, counsel should point out that the retardedpopulation. Itis notclear from the legislative intent was that the AAMRc1as- face of the bill why "seriously" is SUBAVERAGE INTELLECTUAL sification guidelines should apply, since deployed, his not a clinical term, and the FUNCTIONING the legislature saw fit to adopt a definition definitionofmentalretardationused inthe that amounts to a blueprint of the AAMR Actis one which would clearly protect all One part of the SB 172 definition which definition. Finally, counsel should exploit mentally retarded offenders. does notseem tonecessitate a referenceto the absurdity of exposing a clearly im the AAMR classification manual that the paired defendant to the death penalty simply becausehe scores 71 or 72 instead retarded people are located in offender exhibits "significant subaverage Mentally intellectual functioning." The Act itself of 70. Should we really be splitting hairs one of 4 categories: mild, moderate, defines this term as meaning an IQ of 70 in making these life and death decisions? severe, and profound. As one can see, or below. Ofcourse, evenifthe offenderisnot found there is no category of "serious" mental to be within the purview of the Act, a low retardation. We will be most concerned IQ is relevant at virtually every stage of with the "mildly retarded" category, In fact, the AAMR classification manual litigation in a capital case see below. which includes those whohave an IQ be also fixes the upper boundary of mental tween 55 and 70. Almost 90% of the retardation at an IQ level of 70. However, entire mentally retarded population falls thedraltersof this definitionacknowledge Counsel should be aware that the testing within this category. Note that the term that "[t]his upper limit is intended as a instrument itself can become a variable in "mild" is somewhat misleading. Mildly guideline; it could be extended upward the diagnosis. Two tests, the Stanford retardedpeople are infact extremely ha- through IQ 75 or more, depending on the BinetIntelligence Scale and the Wechsler paired and disabled. reliability of the intelligence test used." Adult Intelligence Scale-Revised WAIS AAMR, Classflcation in Mental Retar R are the oldest and most carefully re STATUTORY DEFINITION dation, at 11. searehed IQ tests. Other IQ tests, such as the Revised BETA, are not considered to be good instruments. If the prosecution Section 1 of the Act defines a retarded Inasmuch as the SB 172 definitionof sig offender as someone "with significant expert uses such a test, you should be nificant subaverage intellectual function prepared to demonstrate on cross ex subaverageintellectual functioning exist ing would protect onlythose withIQ’s of ing concurrently with substantial deficits amination that such tests are not recog 70 or below, and not up through the 75 nized asbeing appropriate instruments. in adaptive behavior and manifested range, perhaps there is some logic in during the developmental period." The defining such offenders as "seriously" bill goes on to define "significant sub mentally retarded. In any event, counsel Counsel will sometimes encounter average intellectual functioning" as "an shouldnot be dissuadedfrom initiating the evaluators who-administer an appropriate intelligence quotient of 70 or below." protections of the Act simply because the test, but in an inappropriate manner. It is client has an IQ score of 72 or 73 or even not unusual, for instance, to find an The definition, then, sets out a 3 element 76. evaluator whohas administered, say, only test. The offendermust exhibit bothintel two ofthe Wechslersubtestsinstead ofthe lectual impairmentandbehavioral impair STANDARD ERROR OF entire group. Also, be alert to any ment. The final element concerns the’ MEASUREMENT evaluator who uses a test designed for a timing of the onset of the disability. different age group than your client. In fact, most IQ tests have a margin of as a "standard Thisdefinitionis virtuallyidentical to that error, known to clinicians Occasionally an evaluator will do little adoptedby the American Association on error of measurement." According to an more than guess at an IQ score by drawing Mental Retardation AAMR, and is authoritative psychiatric text, "there is a a dubious inference from other test data standarderror of measurement, which is 3 that have nothing to do with intellectual generally accepted across the country as to 4 points over or under the score ob the standard definitionof mental retarda functioning. Any IQ score which is calcu tion. For instance, it is the definition tained on the test." Kaplan and Sadock, lated from a score on a psychological test Comprehensive Textbook of Pychiatiy, that does not measure intellectual which the American Psychiatric Associa Vol. 1.1, p. 1729 5thEd. 1989. This 8 point functioning should be considered invalid, tion employs in the revised third edition bulge is referred to as the "zoneof uncer of the Diagnostic and Statistical Manual

JUne 19901 The Advocate 31 It is essential that the evaluator havesub dant whoseeks to demonstrate that he is a executing the mentally retarded, this stantial training in the field of mental seriouslymentally retardedoffendershall state’s consensus is clear." 386 S.E.2d at retardation see Competent Evaluations, raisethe issue at least 30 days before trial. 342. footnotes omitted. below. The Act guarantees the righttoan eviden tiary hearing, and it also provides that the ADVERSE TRIAL COURTFIND BEHAVIORAL IMPAIRMENT prosecution"may offer evidence inrebut INGS tal." The implication is that the prosecu The second requirement in SB 172 is that tion may also havethe defendant evaluat As indicated, the Actprovides thatthe trial of behavioral impairment. The bill re ed. In the event that this happens, make court makes the determination as to quires that the intellectual impairment sure that you secure an order limitingthe whether or not the offender meets the exist "concurrently with substantial scope of the prosecutionevaluation to the legislative definition of mental retarda deficits inadaptive behavior."Again, this issue of mental retardation. See Powell v. tion. However, Section 2 of the Act also is virtually identical to the behavioral Texas, _U.S._, 109 S.Ct. 3146, 106 says that "[t]he pretrial determination of prong of the AAMR definition. The DSM L.Ed.2d 551 1989 6th Amendment the trial court shallnotpreclude the defen ffl-R, which also incorporates behavioral violation where state psychiatric exmina- - dant from raising any legal defense during impairment as a diagnostic criterion, tion performed without notice to defen the trial." In the event of an adverse trial defines adaptivebehavioras "the person’s dant or his counsel that exam would en- courtruling ina closecase, counsel should effectiveness inmeeting the standards ex compass issue of future dangerousness. exploit this language and argue that the pected for his or her age by his or her defendant has a right to a jury determina cultural group inareas such as social skills The Act further provides that the trial tion on this issue, as well. and responsibility, communication, daily court must rule on the issue at least 10 days living skills, personal independence, and prior to the trial. In the event that the Certainly, anadverse rulingcannot barthe self sufficiency." DSM ffl-R, at 31-32. offender is ruled to be mentally retarded, presentation of evidence of the the Act mandates that he not be "subject defendant’s impairment. See Crane v. Scales such as the AAMR Adaptive Be to execution" all other punishments, in Kentucky, 476 U.S. 688, 106 S.Ct. 2142, havior Scales and the Vineland Social cluding life without parole for 25 years, 2145,90 LEd.2d 636 1986 trial court’s MaturityScale canbe used to determine a are available. In essence, a finding of exclusion of testimony at trial concerning person’s adaptive behavior. More com mental retardationconverts a deathpenal circumstances of confession on ground monly, the evaluator’sclinical assessment ty case into a non capitalprosecution. that issue of voluntariness had been is relied on. resolved adversely against him prior to EFFECTiVE DATE trial "deprivedpetitionerofhisfundamen should not tal constitutional righttoa fairopportunity Frankly, this requirement Section 3 of SB 172 provides that the Act to present a defense". present much of a problem, for any im who commits capital only applies to trials commenced after the paired offender a effective date of the enactment, July 13, murder clearly has substantial deficits in 1990. However, there is a compelling ar Such evidence is highly relevant both to adaptive behavior. Nevertheless, counsel gument that every retarded offender sen issues of criminal responsibility and should provide the clinician with reports tenced to death before the effective date mitigation of punishment. KRS from formerteachers, classmates, friends, of the Actshould also be spared from the 532.0252b7 specifically provides that family members, etc., concerning the death penalty. The argument is that the mental retardation is a mitigating cir client’s behavioral limitations. Did it take passage of SB 172 reflects a social con cumstance in capital cases. And the him 3 years longer than most children to sensus in Kentucky that executions of the Supreme Court has held that "[i]t is clear learn to tie his shoes? This is the sort of retarded constitute cruel and unusual that mental retardation has long been thing you will need to explore. Keep in regardedas a factor that may diminish an an institutional setting like punishment in violation of Section 17 of individual’s culpability for a criminal mind that, in the Kentucky Constitution "...nor cruel jail where the meals may be delivered to punishment inflicted". This is a par act." Pen,y, supra, 106 S.Ct. at 2957. the client,etc. the client’s behavioral im ticularly powerful argumentin light of the Undersome circumstances, mental retar pairments may not be obvious. This fact that only 2 of 138 legislators voted dation can even support an insanity phenomenon makes it all the more impor against it. The public opinion survey, defense. KRS 504.0201. tant to explore the client’s Fe-institution mentioned previously, is also relevantin al history. establishing this consensus. But can the defendant actually relitigate the statutory prohibition in SB 172 at the ONSETOF DISABILITY trial itself? In Kentucky, the answer Indeed, the Georgia Supreme Court has should be yes. The argumentproceeds as The final statutory requirement is that the accepted this very argument. In Fleming follows. The statute itselfprovides that the disability must have manifested itself v. Zant, 386 S.E.2d 339 Ga. 1989 the court’s adverse pretrial ruling may not "during the developmental period." This court held that executing retarded of prohibit the defendant from raising any simply means thatthe disability musthave fenders would violate the state constitu "legal defense" during the trial. The appeared before the age of 18. This ele tional ban on cruel and unusual punish statute itself also provides that a finding secur ment. The Court noted that the Georgia ment is tlpically demonstratedby - of mental retardation is a legal defense to ing the offender’s school records, which legislature’s prohibition on executing the execution. Thus, the offender should be will likely indicatefailing grades and "so retarded would not by its terms apply to entitled to a jury fmding on the question cial" promotions. Interviews with Fleming, who had beenon death row for of mental retardation. Counsel should teachers and family members will also 10 years. Nevertheless, "[t]he legislative prepare a special verdictform and instruc provide helpful information in thisregard. enactment reflects a decision by the tion on the issue of mental retardation as people of Georgia that the eiecution of definedby the statute. If the jury makes a PROCEDURE mentally retarded offenders makes no findingthat the client isretarded, the death measurable contribution to acceptable penalty should notbe an option. Underno of SB 172 requires that a defen goals ofpunishment. Thus, although there circumstances should the jury ever be in- Section 2 may be no ‘national consensus’ against

June 1990/ The Advocate 32 formed of the trial court’s adverse ruling. dons. son for the crime.

In essence, the argument for submitting MENTALRETARDATION AND FOOTNOTE the issue to the jury after an adverse CONFESSIONS ruling by the court is that there is a right A competency assessment instrument tojury findings on factual issues relevant Space will not allow a thorough discus designed exclusively for retarded of to sentencing. Granted, the Supreme sion of the full impact of an offender’s fenders is currently being field tested and Court has recently made it emphatically mental retardation on all phases of the will be published in 1991. One of the clear that there is no 6thAmendment right criminal process. We have already alluded designers of the instrument, Dr. Caroline to juiy findings on sentencing issues in tothe issues ofcriminal responsibility and Everington, described the special pro capital cases such as the existence of mitigationof punishment. Competency to blems presented retarded offenders and aggravating factors. "Any argument that stand trials another area thacan be im the needfor a specialized competency in the Constitution requires that a jury im pacted by mental retardation. strument in a previous issue of The Advo pose the sentence of death or make the cate. VoL 11, No.4, p. 38-39 June 1989. findingsprerequisite toimposition ofsuch One area that we will touch on briefly, a sentence has been soundly rejected by though, concerns confessions. The "con prior decisions of this court." Clemmons fession of a retarded suspect should al v.MLvsLssippi,_U.S. ..._,46 Cr1. 2210, ways be scrutinized. First, mentally REFERENCES 2212 3/28/90. However, there is such a retarded citizens are abnormally suscep right under Kentucky law. In Wilson v. tible to coercion and pressure. Thus, Aiken, R., Assessment of Intellectual Commonwealth, 765 S.W.2d 22 Ky. voluntariness of the confession canbe an FunctioningAllyn & Bacon, Inc. 1987. 1989, the Court "reversedthe sentence of issue. Second, the mentally retardedclient life imprisonment without parole for 25 may confess to a crime he didn’t commit Blume, John, Representing the Mentally years because the jury failed to find the out of a desire to please someone per Retarded Defendant. The Champion existence of a statutory aggravating fac ceived to be an authority figure. Thus, November 1987. tor." On remand, "the judge refused to reliability of the confession can be an allow Wilson to be sentenced by a jury" issue. Also, mentally retarded citizens and instead imposed a life sentence. Id. tend to answer affirmatively to leading Ellis, J. &Luckasson, R. 1985. Mental The Supreme Court remanded. "Clearly, questions. Sigeiman, Winer & Schoen ly retarded criminal defendants. The under Kentucky law a criminal defendant rock. The Responsiveness of Mentally George Washington Law Review, 53, has a statutory right to have his sentence Retarded Persons to Questions. Educa 414-493. set by a jury." Id. tion and Training of the Mentally Retarded, 17, 120-124 1982. Fmally, a Everington, C. in press. The Com COMPETENT EVALUATIONS retarded suspect may not understand the petence assessmentfor standing trial for Miranda warnings. Thus, the 5th and 6th defendants with mental retardation It is extremely important that your Amendments may be violated during the CAST-MR: A validation study. evaluator has had adequate training in the interrogationprocess. Criminal Justice and Behavior. area of mental retardation. Keep in mind that a clinical psychologistmay notneces be qualified to evaluate whether an The following capital case addresses the Everington, C. & Luckasson, R. inpress. sarily inability of a retarded offender to under Addressing the needs of the criminal offender is retarded. Mental retardation is Miranda warnings. Smith v. very different from mental illness. It is for stand the In defendant with mental retardation: The Kemp, 855 F.2d 712 11th Cir. 1988 Va special education as a resource to the this reason that the ABA Criminal Justice banc, F.2d 253 Mental Health Standards, Note 4, 7-11 catedforrehearing en 873 criminal justice system. Education and 11th Cir. 1989, district court affd by Training in Mental Retardation. 1984 preclude mental health profes equally divided court, 887 F.2d 140711th sionalsfrom testifying, evaluating or par Cir. 1989 en banc waiver of Miranda ticipating in trials involving mentally rights was not shown to be knowing and R. NEAL WALKER retarded individuals if the professional’s intelligent where the accused had LQ. of Assistant Public Advocate expertise does not include substantial 65 and a mental ageof10 or 11. "[I]twould Frankfort training and expertise in the field of men be veryunusual witha person withthis IQ tal retardation. to be able to intelligently appreciate what he is doing when his Miranda rights are Special education teachers and speech or read to him." There was nothing in the language pathologists are often valuable record to show that prior brushes with the in assessing mental retardation. On the law taught Smith anything, officers took other hand, psychiatrists and clinical no particular care with reading him his KENTUCKY DEATH PENALTY psychologists arenotqualified todo these rights, and under stress Smith would like MANUAL assessments unless they "have received lynot have understood them even then. extensive, formalized, post-graduate The Revised 4th Edition of the D.P.A. education and training in identifying Death Penalty Manual is now available. specific functional deficits or habilitation There is a helpful Kentucky decision from Among other articles, it reproduces an cx the last century on this subject. In Butler celient article by South Carolina Attorney needs of persons with mental retardation v. Commonwealth, 63 Ky. 2 Duv. 435, John Blume about defending a mentally or developmentaldisability." ABAStand 435-436 1865 the confession of a boy retarded client Contact Patsy Shzyock at ards, note 4,7-11, Commentary at 14. "of crude and feeble mind and irresolute 502-564-8006 formore infonnalion about will" was held to be inadmissible whenit obtaining a copy of the manual. Ofcourse, the processofassessment itself was shown that the confession was made must also be competent. This has been as an angry crowd threatened to hang the adequately addressed in preceding sec boy and had already hanged another per-

JUne 1990/ The Advocate 33 THE REST OF THE PENALTY The Department ofTransportation’s Policies Regarding Suspension ofyour Client’s Driving Privilege .

Rob Riley

In order to effectively represent the client KRS 189A.0803 requires the license Although completion of an Alcohol charged with traffic offenses, including surrendered to the court upon a person’s Driver Education Program may be re DUl, it is necessary to be aware of more conviction of a first offense DUI to be quired as a part of the criminal penalties than those criminal penalties that are out returned to them at the termination of the imposed by the court on second or sub lined in KRS. A crucial questioninevery suspension period provided no other sequent convictions of DU!, such comple traffic case is, What effect will this have license suspension action is in effect at the tion does not affect the eligibility of an on my driver’s license? This is dependent timeof the reinstatement application. The individual to apply for the reinstatement upon the current policies and procedures $30 reinstatement/relicensing fee and of their driving privilege. of the Department of Transportation written and eyeexam are still required. DOT. MULTIPLE OFFENDER ISSUES 2189.040 specifically allows first of THE TWO FIRST’S PROBLEM With this in mind, the Department of fenders to reduce the suspension period Transportation agreed to provide the fol from 6 months to 30 days by enrolling in lAssuming a person withno prior convic lowing written answersto submittedques an alcohol or substance abuse treatment tions forDU!, KRS 189A.010, is arrested dons. The submitted questions represent progran for 2 separateoffenses. Assuming further those problems I believe arise most often that he enters a plea or is otherwise con in a day-to-day traffic court caseload. In Must the person complete the program victed at the same time on bothoffenses: addition, the Department of Transporta wIthin 30 days to allow reinstatement? tion has agreed to answer questions on a Howwould Transportation Cabinetheat periodic basis and to allow The Advocate Yes, completion in an approved Alcohol these convictions? to printany future changes in policies. Driver Education Program is required . prior to applying for reinstatement. The license suspension period for DUT begins on the date of conviction. In your Questions of a general interest may be HowIs TransportationCabinetnotifledof scenario, since both convictions would forwarded tome, and I will direct them to any failure tocomplete this program and occur on the same day, the suspension the appropriate representatives of the what action does Transportation Cabinet periods would run concurrently giving a DOT. take? total suspension period of 1 year 6 months for one offense, 1 year for the STANDARD SUSPENSION The individual must have successfully second offense. ISSUES completed all phases of an approved Al cohol Driver EducationProgram prior to Is the offender able to reduce his/her 1When a person is convicted of a D1J1, applying for reinstatement. Therefore, a suspension periodby attending analcohol KRS l89A.OlO, his/her license is failuretocompletenoticeis notnecessary. or substance abuse treatment program? suspendedfor aperiodoftimepursuantto KRS 189A.070. Assuming the person has acquired a new Yes, on the first offense only. However, license, following the 30 day period, how since both convictions occuron the same Afterthe passage ofthe statutory period, Is he/she notified of any suspension for date, the suspension periodfor these con what must the person do to reinstate failure to complete and does he/she get a victiong would run concurrently. The of his/her driving privilege? hearing? fenderwould be eligible to attend an ADE Program on the first offense only. How The individual is required to pay a $30 N/A ever, it would not benefit the licensee to reinstatement/reicensingfee as mandated attend an ADE Program since a 1 year by KRS 186.44012 and 186.4501 and suspension would be imposed for the submit to the written and eyeexamination 3KRS 189A.OlO does not specifically second DUT conviction. as required by KRS 186.4802. refer to Transportation Cabinet in situa tions involving secondor third offenders, What would be the length of his/her Is this procedure the same regardless of although an alcohol or substance abuse reduced suspension, If any? the level of offense pursuant to KRS program is required. lS9A.OlO? See above. What Is Transportation Cabinet policy Yes. regarding completion of these statutory OUT-OF-STATE LICENSEISSUES programs In relation to reinstating the Does KRS 189A.0803 mandate a dif drivingprivilege after the passage of the lIf a person is convicted in Kentucky of ferent result for first offenders? KRS 189.070 statutorytime periods? DUI but has a driver’s license from another state:

June 1990trheAdvocate 34 Does Transportation Cabinet record the Chapter 187 forfailure tosatisfy a judg within the 15 day "request period." Once conviction and how? ment, how would any suspension period received, the individual is scheduled fora for DUI or Operating on a Suspended hearing as soon as possible. At this hear No. License be computed? ing, the facts of the refusal arediscussed. These include: Does Transportation Cabinet notify the See Part 1. other state and how? REFUSAL ISSUES lWhether the officer had reasonable Yes. The conviction is sent on to the state grounds to believe the person had been of record. However, no action is taken in 1Pursuant to KRS 186.565, the driving driving or was in actual physical control Kentucky. privilege can be suspended due to the of a motor vehicle in this state whileunder failure of the suspect driver to consent to the influence of intoxicatingbeverages or Does Transportation Cabinet consider a breath, blood, or urine test. other substances which may impair one’s any convictions from the other state In driving ability. calculating any suspension period In Ken In light of the fact that 186.5651 refers tucky? to consent "for the purpose of determin 2 Whether or notthe personwas properly ing the alcoholic content of his blood," placed under arrest forthat offense. A recent Court of Appeals decision said the Transportation Cabinet could not en what action does Transportation Cabinet hance the license suspension penalties for take If the testIs requested forsubstances 3 Whether the officerobserved the licen other than alcohol,such as drugs,and the seefor a minimum of 20 minutes prior to a DUI conviction from out-of-state. Both suspect driver refuses? Ky. Appeals Court decisions dealt with requesting him to submit to the test. applying a Kentucky convictionto an out- The same suspension wouldresultregard of-stateon the record.Others dealt with an less ofwhether therefusal action is a result 4Whether or not the person refused to out-of-state received where a Kentucky of a request from an officer for the deter submit to the chemical test after being conviction is on the record. We are cur mination of the B/A level due to alcohol requested to do soby the officer. rently inthe CourtofAppealsfor clarifica or other substances including ifiegal nar tion of KRS 186.5703 concerning how cotics which might impair one’s driving to apply an out-of-state conviction. 5Whether the officer warned the in ability. dividual of the consequences of their PROCEDURE IN RELATION TO refusal and advised him of the Implied In light of 186.5657, which seems to ConsentLaw. OTHER LICENSE SUSPENSION IS allowreduction of the 6 monthsuspension SUES period for refusal by completion of the alcohol education program, what Is 6 Whether afterdoingso, the officeragain In regardto habitual violators, as defined Transportation Cabinet’s position In this asked the individual to submit to the In KRS 186.642, how does the suspension regard? chemical test. timerun fora DUI suspension or Driving on a Suspended Operator’s License Based upon an Attorney General’s suspension when the person Is already opinion, currently underreviewby theKy. 7Whether the individual again refused. revoked as a habitual violator? Court of Appeals, the cabinet does not honor a completion in an Alcohol Driver At the conclusion of the hearing, an order The suspension period fora convictionof Education Program in order to negate a is written recommending either suspen DUT will begin on the date of conviction. suspension of the individual’s driving sion for a period of up to 6 months of the AU other suspension periods begin on the privilege for refusal of the chemical test. individual’s driving privilege or that "no effective date of the withdrawal the date action" be taken against the individual’s the cabinet takes action against the If a suspect driver refuses the test and driving privilege. This order must be individual’s driving privilege. When an faces suspension for refusing, and sub signed by the Commissioner of the Dept additional suspension period is imposed, sequently Is found guilty of DUI and of Vehicle Regulation within 10 days of the suspension period is notadded to the likewise faces suspension, how does the date of the hearing. The individualis expiration ofanexistingsuspension.Each Transportation Cabinet calculate the notified of the commissioner’s rulingim suspension is treated independently. total suspension period, without regardto mediately thereafter. If the order is to the purported reduction provision of suspend theindividual’sdrivingprivilege, Do the suspension periods run concur 186.5657? the 6 month suspension will begin on the rently or consecutively? date of the commissioner’s final order. The DUI suspension period would begin Any person aggrieved by the decision of See Part 1. on the date of conviction. The process on the commissioner may appeal to the cir the RCT refusal of the chemical test cuit court in their county of residence or How does the suspension time run If the would be somewhat different since it is an Franklin Circuit Court within 20 days of person’s license Is suspended for DUI or administrative action imposed by the the date of the final order. Operating on a Suspended License and Is Transportation Cabinet. Upon receipt ofa later adjudicated as a habitual violator? perfected affidavit, the Division ofDriver If, In addition, there Is also an Operating Licensing notifies the individual of their on a Suspended License conviction, how See Part 1. right to request a hearing. If there is no would that suspension period be calcu response within 15 days, a suspension is lated In relation to other periods? Do the suspension periods run concur imposed beginning at the termination of rently or consecutively? this 15 day period. This suspensionwould All suspension periods for driving while be for the period of 6 months. suspended convictions begin on the effec See Part 1. tive date of the withdrawal the date the cabinet takes action against the individ Ifa personIs suspended pursuanttoKRS If the individual requests a hearing, the ual’s driving privilege. request must be in writing and received

June 199011’heAdvocate35 Q LIst all offenses for which revocation Is mandatory and the periods. A: OFPENSE 1ST 2ND 3RD! INCONSISTENT SUBSEQUENT LAWS Driving under theinfluence *6 months 1 year 2 years The courts will decide whether Franklin Driving while suspended County officials were negligent in releas Under KRS 186.620 6 months 6 months 6 months ing Alvin Dean Sons from jail in 1988, Driving while suspended after he was arrested for public drunken Under KRS 189k090 twice the original length ness. Mr. Sons left the regional jail and of suspension darted in front of a car on the East-West Also: Class B Class A Class D Connector and was killed. His blood al Misdemeanor Misdemeanor Felony cohol level was 4 times the level at which Manslaughter 6 months 1 year 2 years a personis legally considered drunk. Murder/Manslaughter Syears - Driving a motorvehiclewhich is However, no courtruling is needed topolnt not a motorvehicle while under an accusing finger at a negligent General influence 6 months 1 year 2 years Assembly which, for nearly a decade, has Perjury/false application 6 months 1 year 2 years eased state laws against public drunken Any felony in which a motor ness but has failed to replace the old vehicleis used 6 months 1 year 2 years statutes with clear laws governing what Convictions or forfeitureof bail law enforcement officers are to do with upon 3 convictions ofrecidess peoplewho aredrunkin public places. drivingwithin 12 months 6 months lyear 2years Conviction of drivinga motor As a result of a task force study recom vehicleinvolved in an accident mending the decriminalization of public and failing to stop and disclose drunkenness, the legislature in 1980 his identity 6 months lyear 2ye&s changedstate law to provide that a person Conviction of theftof a drunk in public be taken home by law motor vehicleor any of enforcement officers, to a treatment pro its parts 6 months lyear 2years gram or, if neither was available, to a Failure to havein full force and detention center. The General Assembly, effect the security required by however, did not provide funds to pay for subtitle 39 of KRS 304 none lyear 2years treatmentprograms. Thedecriminalizatica Refusal of the chemical test 6 months 6 months 6 months law was amended in 1982 to require a Conviction of fraudulentuse of a person drunk in public to be taken to a driver’s license or use of a fraudulent Ireatmentfacility, butagain, no money was driver’s licenseto purchase or attempt appruIated for those facilities. In 1986, to purchase alcoholic beverages 6 months lyear 2years the legislature dropped ajail sentence for Assault and battery with a motor first and second offenders, but required vehicle 6 months 1 year 2 years that they be detained up to 8 hours unless Failure to answer a citation or someone picked them up at the jail, they summons Indefinite until the citation paid posted bail, were released by the court or Unlawfuloperation of a they could safely care for themselves. motor vehicle 6 months lyear 2years Conviction of being an hahitual There’s the problem. Franklin District violator 2 or 5 years depending Judge Joye AIbso says federal case law upon thedriving recordof the individual prohibits requiring bailorjail detentionfor Unsatisfied Civil Judgment 15 years or until thejudgment is satisfied crimes that do notcarry ajailterm, which State Traffic School If an individual does not comply with the court order Kentucky law does not for the first and to attend State Traffic School, an indefinite sus second offenses. "A person’s basic liberty pension is Imposed until the compliance Is met not to be held in jail - ifthey could not be putin jailfor that which they are charged - *Ucensee is eligible to reduce this suspension to 30 days by completing an approved Al overrides an Inconsistent statute," Judge cohol DriverEducation Program. Aibrosays. lila this inconsistency, begin ning in 1980, that marks the bistosy of UJ LISt an offenses icr which revocation Is dIscretionary and the periods. decriminalization of pubic drunkenness A: by thelegislature.

Nearly a decade ago, a task force deter mined - rightly - that alcoholism Is an SuspensIon Alternative Is a Hearing illness and should be treatednotas a Pariod Offered? but as a social and health Issue. Kentucky’s jails are crowded enough Accumulation of 12’pena1ty" without adding to thempeople whose only points within a2 year period offense Is public intcnlcaiion. Bu by fall 1st Offense 6 months 1 year probation Yes ing to fund treatment programs cafled for 2nd OffenSe I year 2 year probalion Yes by state law and giving law enforuement 3rd Offense 2 years 4 yearprobation Yes officials at best muddied Instructions on Racing/Eluding how to handlepersons drunkIn public, the 26 milesper hour over the posted General Assembly has failed its respon speed limit within aS year period sibility. Certainly, it failed Alvin Dean 1st Offense 90 days SouL suspension possible 6 month probation Yes 2nd Offense 1 year 2 year probation Yes - StateJounwi EditoriaL 3rd Offense 2 year 4 yearprobation Yes Reprinted with pernàsion.

June l99OtTheAdvocate 36 ISSUES NOT RELATED TO DUT: How Is the decisIon made? Does the per ANGRY MEN LIKELY TO DIE SOONER, son get a hearIng? STUDY SHOWS The decision of whetheror notto suspend an individual’s driving privilege for any discretionary suspension is left up to the hearing officer. If the individual fails to request or does notappear at the hearing, the suspension is automatically imposed. A hearing is offered prior to the imposi tionofa suspension for any ofthese offen ses.

ROBERTA. RILEY Assistant Public Advocate MONTEREY, CaliL - Do you get riled when the guy in front of you at the grocery checkout has l0itemsinsteadofthe9 allowed? When thebankcustomeraheadofyoudoesn’tfillout LaGrange Trial Office herdeposit slip until shereaches the teller? Oldham, Henry & Trimble Counties 300 North First Street Suite 3 You probablysufferhigh levels ofanger, hostility andmistrust- traits researchers now saymay LaGrange, Kentucky 40031 be the among the most important behavioral predictors of disease and death. Such hostility 502 222-7712 causes the body to release chemicals linked to heartdisease and other ailments, new studies show.

One reveals that men who scored highon a "hostility scale" had a death rate more than 5 times higher than men with low scores. "Trusting hearts last longer" says Dr. Redford Williams, professorofpsychiatryatDukeUniversityMedicalCenterinNorthCarolina.Williams,aleader RIGHTS CARDS in the study of personality and heart disease, discussed his findings at the annual American AVAILABLE Heart Association science writers’ meeting. His researchshows a biological linkto angerand behaviorandappears toreflnethe controversial studies over the past decade of the "Type A" personality. Studies in the 1970s by San Francisco cardiologists Meyer Friedman and Ray Rosenman showed that Type A men - characterizedby Impatience, ambition, hostility and hurriedness - were twice as likely to suffer heartdiseaseas their more mellow Type B counterparts. In recent years, however, researchers have questioned the Type A theory. Mylawyer hastold me not to talk to anyone about my case, not to answer any questions, Williams found that only the hostility component of the theory actually is linked to higher and not to reply to accusations. Call my disease and death rates. In a study of 118 lawyers he followed for 25 years, beginning with a lawyer if you want to ask me questions, personality testduring law school, he found that those with the highest"Ho" scores-forhostilily search me or my propeity, do any tests, do - died at arate 4 times higher than those withlow "Ho" scores. After 25 years, 20% who had anylineups, or any other identification pro scored in the highest quarter on the hostility scale had died, compared with 5% of those who cedures. I do not agree to any of these things had scored lowest. without mylawyerpresent and Ido not want to waive any of my constitutional right!. Narrowing down the "Ho" scale, Williams and his colleagues discovered that very certain hostility characteristics were more closelyassociatedwith the higherdeathrates. Among them a cynical mistrust of peoples’ motives, frequent anger and the open expression of anger. The attorneys who scored highest on these 3 traits had a 25-year death rate 5.5 tiuns higher than those with lowerscores.

Thereis no evidence to support the common belief that people are better off expressing their angerratherthankeeping it to themselves, Williams said. The study strongly suggests that other Type A traits - being a workaholic, hurrying, talking fast and frequently interrupting people - are not associated with higher risk of diseaseor death. "We’re talking here about attitudes and $5.50 Covers Postage and Handling per beliefs such that if you are in a bank line that’s moving slowly, you’re immediately thinking, lOOcards. ‘Why aren’t people ready with their checks?" says Williams. "You may not believe this, but there axe a lot of people outthere who don’t have thoughts like this." Send check or money order payable to the Kentucky State Treasurer to: Athis laboratory at Duke, Williams said his colleagues have found that people who score high on the "Ho" scale undergo much greaterincreases in blood pressurewhen they areharassed. Because situations that annoy or harass are so common, he thinks the "more pronounced biological reactivity of hostile people" may be a mechanism by which their hearts and blood vessels are damaged. In fact, anotherof his studies shows that the branch of the nervous system RIGHTS CARDS intended to slow the heartduring timesof stress kicks in muchlater in hostile men. The stressful DPA andhazardous chemicalreactions caused by threatening situations lastlongeramongthese men. 1264 LouisvilleRoad Frankfort, KY 40601 "Trusting hearts may lastlonger because they’re protected against the ravages ... of the nervous system," Williams says. Or, he adds, these protectiveresponses among non-hostile men "may even explain why trusting hearts are trusting." ELLEN HALE Gannett News Service, Information for this story was also gathered by The Associated Press.

June 1990/The Advocate 37 6TH CIRCUIT HIGHLIGHTS

Donna Boyce PROBABLE CAUSE help and/or extricate his vehicle from the 4TH AMENDMENTEXCESSIVE mud. It was obviousthat Ross’ mudcaked FORCE STANDARD Ross v.Meyers shoes, which were falling apart, Impeded his ability to walL Lewis v. City a/Irvine lnRoss v.Meyers, 883 F.2d4866th. Cir. 1989, the Court of Appeals for the Sixth The Sixth Circuit ordered a new trial in a Circuit upheld a jury’s finding that a state The court concluded that it was notclearly case against an Irvine city police officer highway patrol trooper had no probable erroneous for the jury to conclude that accusedof using excessive force in fatally cause to arrest, charge, confine and Meyers acted withoutprobable cause. shooting the operator of an Irvine game prosecute Ross for driving while intoxi room. Lewis v. City of Irvine, 899 F.2d cated. The issue arose inan action involv LAD 451, 19 S.CR. 8,266th Cir. 1990. ing claims of false arrest, false imprison prosecution and Inten Norton v. Parke ment, malicious In 1984, Donald Lewis leased a building infliction of emotional distress. tional In Norton v. Parke, 892 F.2d 476 6th Cir. in downtown Irvine, Kentucky, which be 1989, the Sixth Circuit held that a state converted into a family residence and a Around 2:30 a.m., Trooper Meyers ar prisoner’s failure to strictly comply with public game room. After he opened for rived at the scene of a distressed motor the provisionsof the Interstate Agreement business, local residents voiced com vehicle with its front wheels lodged in a on Detainers in trying toresolve charges plaints about the unruly behavior of some ditch off the shoulder of the highway, pending in another state barred him from game room patrons. To remedy this, the Ross, driver of the vehicle, had been in seeking federal habeas corpus relief on a City of Irvine adopted an ordinance volved in a single vehicle accident. speedy trial issue. regulating loitering and profane and loud Meyers observed that Ross had a talking on the sidewalks and streets in moderate odor of alcohol on his breath, front of business places within the cor Norton, a Kentucky inmate, had charges ordinance that he staggered as he walked, that his While im porate city limits. The provided eyes were bloodshot and that he had dif pending against him in Ohio. no definition for ‘loitering.’ ficulty speaking and understandingdirec prisoned In Kentucky, Norton filed a mo tions. Meyers arrested Ross, took him to tion to dismiss the Ohio indictment due to with a violation of his right to a speedy trial. Soon after adopting the ordinance,the city the sheriff’s office, charged him The Ohio court denied the motion, ruling of Irvine hired Mike Miller to serve as a DWL Although Ross volunteered to sub that the lAD applied and that Norton City police officer. The confrontation an mitto a blood alcohol test, Meyers refused derlying this suit occurred less than three him the county hospital ap failed to avail himself of its provisions. to take to Norton immediatelyfiled a second motion weeks after Miller had beenon the job. proximately 1/10th of a mile from the Ohio either proceed to sheriff’s office. demanding that trial or withdraw the complaint against On that date, Lewis was outside the game him. Thistimehe expressly referenced the room sweeping the sidewalk and watch In this case, the existence of probable provisions of Article III of the LAD as ing people leave church services. Miller cause was an essential element of the incorporated under KRS 440.450. The arrived, at the game room and instructed malicious prosecution claim and an af Ohio court denied the motion because Lewis and others on the sidewalk to stop firmative defense to the false arrest and Norton failed to invoke the TAD with the loitering. Lewis objected and directed false imprisonment claims. The Court prescribedforms. Miller to contact the mayor to resolve the noted that the jury was entitled to reject dispute regarding whether Lewis was, in Meyers’ testimony and, even if no loitering ordinance. had been offered, the Four years later, Norton filed a petition in fact, violating the counter-testimony federal court seeking habeas relief. Miller summoned the mayor over his jury was free to conclude that Meyers radio, and then resumed his patrol route lackedcredibility. The Court further noted Despite Norton’sfailure to formally com ply withthe LAD, the District Court found until he was informed that the mayor was that the evidence didnotconclusivelysup way. Miller returned to the game probablecause. Ross may a trial delay of7 years to be a denial of his on his portafinding of Sixth Amendment rights. The Sixth Cir room and stepped out of his car. The have only had one glass of beer 4 hours was clogged with people, odor of cuit reversed, holding that prisoners chal sidewalk in earlier and had only a moderate lenging extradition actions must pursue cluding Lewis and his sonTim who stood alcohol on his breath. Lack of sleep may the remedies provided by the LAD before withhis hands clenched in the pockets of have accounted for his bloodshot eyes at seeking habeas relief infederal court. The his pants. Tim walked slowly toward 2:30 a.m. Ross provided an explanation that Norton’s failure to for Miller, who in turn grabbed or hit Tim. forhis lack ofcoordination and confusion, court found mally invoke the LAD - i.e., his failure to Tim then swung at Miller, prompting i.e., that he was exhausted as a result of Miller to draw his gun from its holster effortto find usethe required LAD forms -resulted in having expended hours inhis a failure to exhaust state remedies. either to keep it from Tim’s reach or to

June l99OfFhe Advocate 38 threaten Tim. Lewis responded by grab bing for Miller’s arm. A struggle ensued in which Miller’s gun discharged a single DYING IN THE UNITED STATES bullet from close range into the back of Lewis’s neclc Lewis died instantly. The 1988 Vital Statistics Repoil, NationalCenter for Health Statistics revealed that 9 prevent able chronic diseases areresponsible for 52% ofthe deathsIn this country. Nationwide in 1988, At trial, the magistrate granted the City’s homicide deaths ranked 11th as a causç of death: directed verdict motion. The claims against Miller were submitted to a jury CAUSES OFDEATH # OF DEATHS which returned a verdict in his favor.

1. Heart Diseases 767,400 2. Cancer 488,240 New Thai In Suit Against Officer 3. Cerebrovascular 150.300 4. Accidents 97,500 5. Lung 81,960 6. Pnenmctiia-flu 77,330 A 3-judge panel granted a new tial to an 7. Diabetes 39,610 Eslill County woman, Patricia Ann Lewis 8. Suicide 30,260 and herson,Timothy who lostamulti-mil 9. Liver AIlments 26,080 lion-dollarcivil suitshefiledagainstlrvine 10. Athero!cleiosiz 23,700 policeofficer, MikeMillerwhofatallyshot 11. Homicide 22,190 her husband, Donald Lewis, 41 in theneck 12 Aids 16.210 in October 1984 during a fight in front of the pool roomthe elderLewis operated. MillerwastriedforLewis’murderin 1985, HOMICIDE but foundinnocent He resumed his jobon the city police force. Homicide rates were the highest in the 25-34 year old category with 16 deaths per 100,000 persons. The KentuckyPost. Reprinted with pernus sion. A study released by the Injury Prevention Centerat John Hopkins Universityon March 1, 1989 determined that more very young childrendie from murder than from any other category of injurycausing death. From 1980-1985 a total of 1,250 childrenunder one year of age died of homicide, 1/3 due to "child abuse", 11% from strangulation or suffocation, 3% from drowning, 3% from stabbing The 6th Circuit held that a new trial was and 5% from firearms; 6.5% died from neglect and abandonment necessary to resolve the excessive force claim against Miller because the jury in structions introduced inappropriate state ofmind factors and employed an incorrect legal standard.

Specifically, the Court found that the in siructions regarding the excessive force claim against Miller improperly framed MOTOR-VEHICLE DEATHS the issue in 14th Amendment substantive due processterms when the claim proper Motor vehicle-related accidents killed themost children. In the 6 years studied 22,174 children ly should have been analyzed under the died, that is 37% of all injury-related child deaths. 4th Amendment and its reasonableness standard. Astudy done by Dr. Robert I. Brison of the Kingston General Hospital, Kingston, Ontario said that children 5 years of age or younger are more likely to be killed in parking lots or by their parentsbacking outof the driveway than in traffic accidents. By thesame token, olderchildren Additionally, the instructions repeatedly areinjured anddie from darting out into traffic. referred to Miller’s state of mind - a factor that has no relevance in the con In 1988,837 peoplein Kentucky died in trafficaccidents and 46,645 peopledied nationwide. stitutional excessive force inquiry. An officer’s subjective good faith has no HEART DISEASE bearing on the existence or absence of a * constitutional violation for the use of ex Heart disease, strokes and breast cancer areillnesses for which smoking is considered a risk cessive force. The inquiry is an objective factor. Lung cancer kills 126,000 Americans each year. Breast cancer kills 41,000 people per one: the question is whether the officers’ year. actions are objectively reasonable in light Along with smoking, an over-weight condition, high blood pressure, drinking and lack of ofthe factsand circumstancesconfronting exercise were other preventable risk factors. them, without regard to their underlying intent or motivation. The averagestate expenditure on chronic diseasecontrol and prevention is 66 cents a person per year. DONNA BOYCE L went population Assistant Public Advocate Smoking in the United States down from 34% of the to 29% in 1987. Prankfort

June 1990/The Advocate 39 EVIDENCE IN CRIMINAL CASES Looking at the New Evidence Code- Part II

David Niehaus

This is the second part of a series of ar considerations. Justice Leibson noted that ness or prejudice, the trial court in this ticles about Kentucky’s proposed thisparticular statute "requires none of the case was directed to decide the hearsay evidence code. traditional reasonsformaking exceptions question on each out-of-court statement. to the hearsay rule." Dntmm, at 382. The The Supreme Court reliedon a 4thCircuit PROCEDURAL RULES Court decided that questions of preserva case, Morgan v. Foretich, 846 P.24 941 tion ofthe issue were notimportant inthis 4th Cin, 1988 as a basis for the ruling. Since the last column, the Ky. Supreme case because the statute "in its entirety" An explanationof the underlying purpose Court decided an important case,Drumm was an unconstitutional exercise of"judi ofPRE 8034 is found inU.S. v. Pollard, v. Commonwealth, Ky., 783 S.W.2d 380 cial rule-making power by the General 790 P.24 1309, 1313 7th Cir., 1986. 1990. This case adopts a portion of the Assembly" and shouldnothave beenused Pollard also establishes the point that Federal Rules of Evidence concerning in the first place. statements made with an intent to businessrecords [FRE 803-4]. "facilitate" diagnosis or treatment do not qualify nor do statements of fault. This case is a forceful articulation of the In addition, concerning DNA testing, I present Court’s understanding of its rule receivedand forwarded to the main office making power under Section 116 of the Drumm is an important case not only for of the Department of Public Advocacy a Constitution of Kentucky. The Court child sexual or physical abuse cases, but copy of an articleby Joel E Cohen, in the notes that before 1975, "the line between also for the application of rules concern American Journal of Human Genetics, judicial and legislative power was not ing uncharged misconduct, statements to VoL 46, p. 358 1990, which in detail clearly defmed". However, the Court now physicians, and statements found inmedi examines the statistical and mathematical holds that Section 115 and 116 establish calrecords.The casestates the philosophy assumptions underlying thepredictions of judicial rule-making power and that, in of "comity" cases. It is worth noting that non-coincidental match in DNA testing particular, Section 116 gives authority to 3 justicesdissented from the adoption of techniques in use today. The article con the Supreme Court to prescribe the rules FRE 8034, primarily because it was cludes that thestatistical projectionsmade of practice and procedureforthe Court of adopted outside of the rules committee bytheproponentsofDNAtestingmaybe Justice. The Court specifically declines to process. The dissentingjustices also noted erroneous by "many orders of mag extend comity to the statute because it the strong legal policy underlying the dis nitude." This is an important component fails the "test of a statutorily acceptable tinction between treating and examining of showing the lack of scientific accep substitute for current judicially mandated physicians. However, the Federal Rule tance of DNA testing and should be procedures." In particular, this statute received 4 votes, and it is now the law to employed in any DNA testing case. [421355] fails becauseexceptions to the be applied in criminal trials. hearsay rule "are grounded not just on need, but on guarantees oftrustworthiness PROCEDURAL MA1ThRS Also in this article I continue a review of which are the substantial equivalent of the proposed KentuckyRules ofEvidence cross-examination." Drum,n, at 382-383. Most procedural matters are covered by KRE and focus on the procedural rules Articles land VI of the proposed Rulesof that will govern objections, preservation Evidence. A few general observations of error and control of court proceedings. After disposing of the statute, the Court determined on pages 384-385 FRE made at this point will makethe remainder that of this survey a bit easier to comprehend. ADOPTION OF FRE 8.034 8034 should be adopted. The text of the Probably the key provisions of the FR.E rule is set out in the opinion and provides andtheKREareRules40l,402and403. Drumm v. Commonwealth, Ky., 783 that statements made for purposes of These rules govern the admission ofprac S.W.2d 3801990 is a case that presents medical diagnosis or treatment, describ ing medical history, or tically every type of evidence that can be several issuesof evidence law. The major past present conjured up. Under the scheme of the problem presented by the case, according symptoms, pain, sensations or the incep Kentucky Rules, any kind of relevant toJustice Leibson, was admissionof state- tion or the general "cause" or external source thereof evidence is admissible unless it is either merits of the children pursuant to KRS is nothearsay so long as it excluded by a specific provision of the 421.355. This statute allows presentation is "reasonably pertinent to diagnosis or rules or the trial judge in the exercise of treatment." In Drumm, the Court noted ofout-of-court statements ofchild victims discretion givenhim underRules 402 and of physical or sexual abuse upon deter that statements made to a physician con sulted solely for the purposeof testifying 403, decides that the admission of mination by the trial court that "the evidence will be prejudicial, will confuse general purpose" of the evidence is such as a witness have less reliability than evidence admitted under the jury, or will take toomuch time. The that the interest of justice will be served the traditional same basic principle applies with respect by the admission and the statements are treating physician rule. Therefore, under to witnesses. Under KRE 602, anyone found to bereliable basedon a number of the approach adopted by FRE 403 ex clusion on grounds of confusion, unfair- whocan show personal knowledge of the

June I99Otrhe Advocate 40 subject mailer about which he or she is rule provides that a party may not use KRE 615 supposed to testify may testify. The only leading questions on direct examination person specifically excluded as a witness except as necessary to develop the Separation of witnesses is governed by under the Rules is the trial judge. [FRE witness’s testimon’. On cross-examina KRE 615. This rule provides that at the 605; KRE 605]. With few exceptions, tion, leading questions are always avail request of a party, the trial court shall these 2 general principles govern adinis able except as tomatters not raised on the order witnesses excludedso that they can sion or exclusion of evidence in any trial direct examination.The underlying theory not hear the testimony of others. If no or proceeding conducted under the rules. here is that on those matters, the witness party makes such a request, then the trial These concepts are significant enough to somehow becomes the witness of the court may do it on its own motion. There warrant a separate article sometime in the cross-exsniining party, and it is therefore are 3 types of persons or entitiesthat can future, but it is important now to realize unfair to give an advantage to the party. notbe excluded under this order. that these principles act as kind of a final However, as noted in the next portion, if check against the admissibility of the witness is hostile, is an adverse party, with an adverse A party whois a natural person cannot be evidence. or is a witness identified excluded. An officer or employee of a party, the examining party may use lead party that is not natural person corpora The subject of the remainder of this ax ing questions. tion or Commonwealth may not be ex tide, however, is the somewhat mundane cluded if that person is designated as a examination of rules ofpreservation, ob KRE 614 representative by the attorney for that jection andpresentation ofevidence to the party. Finally, the Court may notexclude jury. As notedabove, these rules appearin The next rule governing the control of trial a person whose presence is shown to be Articles I and VI of the proposed rules. is KRS 614 which allows the Court on its necessary for the presentation of the There are a few differences between the own or on the suggestionof a party tocall party’s case. Kentucky and FederalRules whichwill be a witness as the Court’s own witness. Under these circumstances, all parties are noted. However, in keeping with the is particularly new this Federal Rules approach, the governance entitled to cross-examine. Apparently, There nothing in ofthe trial is pretty much leftup to the trial this grew out of the common law right of rule, except for the requirement that the the Courtto do so. Such actions are sorare trial court must exclude witnesses from judge whowill not be reversed except for the hearing on the request of a party. showing of an abuse of discretion. in Kentucky, that I have been unable to locate any instance in recent times where [Compare: RCr9.48]. a court has done so. Graham, inEvidence: ORDER OF TRIAL TextRules,Illustratioss and Problems, 24 OBJECTION, PRESERVATION, Rev.Ed. 1989, states that in federal court AND PRESENTATION KRE 611 recognizes that the trial court trial judgesalmostnever call laywitnesses has authority to control the mode of inter on their own. It is more common to call The basic rules for presentation of rogationofwitnesses and the orderoftheir expertson behalfof the Court, a procedure evidence are found in Article L KRE 103 appearance. The Court has 3 guidelines or that also is authorized under this rule. deals with making and preserving objec goals to aim for in making the rulings. tions to rulings on evidence. Rule 104 assigns duties of determining the admis First, the Court is to order proceedings so This rule provides that the Court may in sibility of evidence to the trial court, as to make the presentation "effective for terrogate any witness as necessary to primarily, and in certain instances, to the ascertainment of the truth." The Court is preventmisunderstanding of the evidence jury. ThelastmajorruleisKRE 105 which avoid needless or to make the evidence clear. Also, this also directed to consump rule specifically authorizes submission of restates the limited or multiple admis tion of time and fmally, the Court is jury questions during the course of trial. sibility rule and explains the supposed directed to protect witnesses from harass These questions must be submitted in effectiveness in admonitions in dealing ment or undue embarrassment during the writing to the judgewhowill decide inhis with it course of examination. The Commentary, sound discretion whether or not the ques or page 63 of the proposal, notes that the tions may be asked. This provision will KRE 103 trial judge customarily has been allowed standardizepractice in Kentucky. to determine whether to allow narrative Under this rule, a party cannotallege error testimony at various stages of trial, on a ruling that admits or excludes whether to allow witnesses to appear out In the Jefferson Circuit Court, where there evidence except when he shows that a of order, whether to allow questions or are 16 divisions, the rightof thejury to ask substantial right of his has been affected redirect or recross that should have been questions depends on the division in and he has either made a timely objection askedearlier, and finally, whetherto allow which the case happened to land.Now, at or motion to strike stating the specific recall of witnesses. The Committee made least, the jury will be allowed to ask ques grounds of objection unless the grounds a point of noting that KRS 421.2103, tions, but the fmal decision is in the hands are apparent of record or, if the evidence which governs the order of appearance in of the trial court. Because of the sensitive is excluded, making the substance of the civil cases, is unaffected by this rule. nature of any objections that might be evidence known to the Court by an offer made to any of the procedures authorized of proof. This rule makes a major change The second part of KRE 611 restates the by Rule 614, it provides that any objec in Kentucky law. This rule proceeds from Kentucky "wide-open" rule of cross-ex tions canbe made outof the hearingof the the assumptionthat rulings on the admis jury at the "earliest available oppor sion of evidence generally are harmless ainination which allows a party to cross- I this is a recognition of examine a witness or any matter relevant tunity." think and should be deemed so as long as they those trial situations in which the judge do not involve constitutional issues un to any issue in the case, including matters determines do something and will not of witness credibility. The only limit on to less the defendant can meet certain re this is a statement that "in the interest of allow contemporaneous objection.Under quirements. The first of these require this rule, the party has to raise the issue at ments is showing that the ruling affected justice,"the trial court may limitcross-ex the earliest opportunity, but that oppor amination to matters raised on direct ex the defendant’s "substantial right." A amination. to leading questions, the tunity is notnecessarily when the prejudi substantial right is notdefmed in the Com As cial actis happening. mentary or in any of the federal commen

June 1990/TheAdvocate 41 taries or cases. However, it must be con raiseanewground will constitutea waiver motions in limine will tend to be more sidered to be a right on the order of the of any other ground notstated. [Graham, common as attorneys getused to practice right topresent a defense or the right not Evidence, 2dRev.Ed.,p. 535].If a specific under the new rules. The only thing to to be convicted on irrelevant or incom objection is erroneously sustained, it will remember, according to the Commentary, petent evidence. Most of the discussion be upheld on appeal if any valid ground is that the "order of record" settling the about this issue centers on what the trial for it exists unless the error could have issue must satisfy the rule of specific ob or the appellate courts are supposed to been "obviated" by a correct objection. jection sufficient to advise the trial court examine whendetermining whether sub [Graham, Evidence, 24 Rev.Ed., p. 535]. and the appellate court of the basis for the stantial rights have been affected. In Under the new rule, there is just no sub request. general, a substantial right is affected by stituteforknowingwbatthelawisinthe an error if that error had a material effect circumstances of your case. An important provision of the rule, KRE or substantially swayed the deliberations 103c, imposesanobligationonthejudge of the jury. [Graham, Evidence, 2d Theseeming harshness of this rulemay be to guard against indirect presentation of Rev.Ed., Chapter 16 C1, p. 533; 551]. alleviated somewhat by the innovative inadmissible evidence to the jury. The Of course, where a constitutional right is on the trial court, whenobjection court must motion in limine rule that also appears in burden is infringed, the reviewing of the KRE 103. But before getting to that, it is or motion is made, to make sure that the be convinced beyond a reasonable doubt importantto note that the avowal rule will attorneys for the parties do not suggest that the jury deliberations were not no longer existin Kentucky. Rather,under improper evidence to the jury under the materially affected or swayed. [Graham, KRE 103, topreserve the issuebyofferof guise of ntking the motion or offer of at 554]. The purposes of the rule are set proof, the lawyer will have to say only proof. This obligation, as shown by the outin the Commentary. The purposes are what he intended to ask the witness and language, does not impose an ironclad to offer counsel an opportunity to address what he expected that answer to be. The duty on the judge. The judge is supposed inadmissibility issues and take corrective trial court may require preservation in to do his or herbest underthe circumstan * measures when needed, to provide the to traditional avowal question and answer ces. The drafters make a special note that trial judge with sufficient information format, and may make comments in order an admonitionshouldbesufficientinmost assure correct rulings, and to provide a toestablishtherecordonappealinauseful instances todeal with anyprejudiceresult sufficient record for the appellate court to manner. [KRE 103b]. ing from a violation of this rule. The ruleon the issue. [KRE 103, Commentary, drafters note that mistrial should be p. 3-4]. These purposes accord with the reserved for serious and irreparable often cited statement found in Morrow v. Subsection d of the Ruleprovides for a breaches of the rule. GreyhoundLines,Inc., 541 P.24713,724 motion in linzine to be made before trial. 8th Cir., 1976. The Commentary notes The trial court is allowed to rule on the that these purposes can be met with an * issue at that point or to defer the decision ThelastpartofKRE lo3isaKentucky offer of proof or a timely objection or until the evidence is offered at trial. The version of the plain error rule. Subsection motion to strike. important point here is that a motion in 3 provides that a palpable error in apply liminethatis"resolvedbyorderofrecord" ing the rules ofevidence which affects the is considered sufficient to preserve the substantial rights of a party may be con The specificity required of a motion to error for appellate review. This rule is a sidered by the trial court on a motion for strike or an objection is of some concern not-so-subtle hint to attorneys to identify new trial orby an appellatecourt on appeal since we have operated in Kentucky for the problems in their cases early and to even though it was insufficiently raised or years under the "general" objection rule. a review. A general objection under these new rules present them to the trial judge at pretriat preserved for The second part of will not suffice to preserve error. KRE conference or before the jury is sworn. this rule is that relief may be granted only 103a is going to require considerably The purposes of the rule stated in the upon determinationthatmanifest injustice more skill than formerly required at trial. Commentary are 1 to facilitate trial has resulted from the error.The Commen A general objection canstill be made and preparation, particularly with regard to tary notes that the purpose of this rule is can still preserve error if it is apparent detennining trial strategies, 2 to reduce to avoid a "plain miscarriage of justice" distractions during the trial, 3 to produce and is designed for occasional use in ex from the context of the record that smoother presentation to the jury, 4 to traordinary cases. The drafters noted the everyone knew what the objection was "enhance" the possibility of settlement similarity between this provision and the about. This is what the plain language of withouttrial, andS to avoid the situation plain error rules in the Civil and Criminal the rule says. However,this seems to be a in which an important evidentiary Rules. The main thing tobe onthelookout verydangerous way to practice law. What decision has to be made in the presenceof forhere is the 2-part analysis. Ifthe record is apparent at the trial level in the heat of in the error battle is not apparent to someone reading the jury middle of trial,his impor reveals an that affects the substantial a typed transcriptorwatching a video tape tant to notice that this rule does notrequire rights of a client, it should be considered some months later. The only safe way to pretrial in limine motions. Because the on The merits by the court, either in a practice under the new rule is to be as Evidentiaiy Rules are supposed to super motion for new trial or on appeal. How specific as you can if you know what the sede Criminal Rules that may conflict ever, the Court is allowed to grant relief objection is. If the general objection is with them, it will be interesting to see only upon a determination that manifest made and the ground is notapparent from whether the Commonwealth v. Gadd rule injustice has resulted from the error. The the record, the only issue preservedby the requiring pretrial dispositionofobjections language of this rule suggests that the will relevancy. [Graham, to prior convictions will still be valid law defendant should not have to show great objection be after enactment of the new rules. Of prejudice or injury in order to getreview Evidence, 2dRev.Ed.,p. 536]. Of course, course, KRS 500.0702 prohibits a trial ofthe issue on the merits. The language of if a general objection is upheld, it will be on review ground for court from making adefendant give notice the first portionofthis parttalks about the upheld if any proper of most defenses before trial, and the same substantial right mentioned in sub it can be squeezed outof the record. enactment of this rule should not operate section a. The only differencehereisthat to change that provision. However, as a in a subsection a issue, the natureof the Even making a specific objection poses matter of trial strategy or tactics, and as a error is delineated. In a subsection e some dangers. The rule has been that if a way to make sure that a likely evidentiary case, the error must more or less jump off specific objection is overruled, failure to issue on appeal is sufficiently preserved, the page to be apparent on video tape to

June 1990/TheAdvocate 42 merit recognition. However, once the ber in this instance that the Court may the purpose of casting doubt on the defendant shows this and shows that a consider only the evidence admissible credibility or reliability of the evidence. substantial right of his was infringed, before thejury becausethat is the decision review should follow. Grant of relief will he makes in determining admissibility of KRE 105 be much more difficult becauserelief can the evidence under subsection b. not be granted in the absence of a deter [Graham, Evidence, 2d Rev.Ed., p. 518]. KRE 105 is a limited admissibility rule. mination of manifest injustice. In Kentucky, it was formerly called the When preliminary questions are con multiple admissibility rule and simply KRE 104 sidered, the trial courtis authorizedtohold provided that evidence that is admissible hearingsoutofthe presence of thejury or, fora legitimate purposeis not necessarily Rule 104 deals with the duty of the trial in some situations, in the presence of the inadmissible becauseit may prejudice the judge to rule on admissibility of evidence. jury. KRE 104c requires the Court to defendant in some other way. The Com In the ordinary run of issues, subsection holdhearings on the admissibility of con-’ mentary shows that the implicitprinciple 1 places the duty to determine the fessions or the fruits of "searches con underlying this rule is a belief that ad qualification ofthe person to be a witness, ducted under color of law" outside the monitions concerning the proper use of the existence of privilege, or general ad jury’s presence. This second requirement evidence ordinarily will be effective. missibility ofevidence, inthe hands of the is a cross-over from RCr 9.78. Also, when However,it is the lawyer’s duty to object court alone. Thus, issues arising under the defendant is a witness at a preliminary to the use of the evidence and to point out KRS 602 witness competency,702 ex hearing and requests that it be out of the that under the balancing test ofKRE 401- pert witnesses qualifications, and 501 hearing of the jury, the trial court must do 403, the evidence cannot be used without privileges are placed in the hands of the so. However, the only other limitation on a significant risk of prejudicial effect to trial court. According tothe Commentary, the trial court in this subsection is that the the defendant’s substantial rights. The this allocation is macleonthe basis that the hearing be conducted outside the hearing main purpose of Rule 105 is to place trial judge, as a trained lawyer and profes of the jury "when the interests of justice squarely on defense counsel the obliga sional, can handle these issues with less require". However, it is important to tion to ask for an admonition concerning commotion and confusion, and the jury remember that KRE 103c directs the the properuse ofevidence if the objection will be shielded from information that trial court in every instance to take to admissibility is overruled.There can be may be required to hear on issues of ad reasonablesteps to make sure that thejury no doubt underthis rule that failure to ask missibility, but which would not neces does not inadvertently hear inadmissible for an admonition constitutes waiver of sarily be admissible inchief. evidence or evidence that may prejudice the issue forever unless the use of the the defendant in the ultimate determina evidence constitutes palpable error under The second important part of subsection tion of guilt or innocence. The custom in KRE 103e. If the evidence that the a is the provision that the trial court is Kentucky on issues of importance is defendant wants to get in is excluded, notboundby the rules of evidence exoept generally to have the hearing outside the defense counsel has a burden under KRE the rules of privilege. This follows the presence of the jury. Certain foundation 105b to make the required offer ofproof modern federal trend which realizes that matters like qualification of experts many and state expressly the legitimate purpose the trial judge will not have the ultimate times areconductedinthe jury’s presence. for which the evidence was to be intro duty of finding facts and is a "profes The thing to remember in these instances duced. Failure to do this will result in sional" who may be more amenable to is thatifyouthinkthatthereisgoing tobe waiver of the objection. disregardinginadmissible factsinma1ing a problem with inadmissible evidence his limited detennination of sufficiencyof being brought before the jury, you should CONCLUSION the evidence. request a hearing outside the presence of the jury,reminding the judgeofhis duties Andes I and VI of the proposed code underFRE 103c and 104c. The argu introduces several innovations toKy. law. Subsection b deals with those situations ment must be pitched in terms of state law The discretion of the trial judge is af inwhich the relevancy or admissibility of or state constitutional law because Wat firmed in a number of these rules. The some evidence depends on the estab kins v. Sowders,449 U.S. 341, 101 S.Ct. duty placed on the objecting party is in- lishment of other facts. One of the most 564,66 L.Ed.2d 5491981 still states the creasedin almost every instance. To some often given examples is found inMartin, general principle that due process of law degree, the harshness of the specific ob Basic Problems of Evidence, 6th Ed., does notrequire hearingsnotdealing with jection rule can be ameliorated by wise 1988, which discusses a situation in confessions to be held outside the use of the in limine rule. To the extent that which the defendant is charged withmur presence of the jury. the in limine rulings will constitute suffi der. The Commonwealth wishes to intro cient preservation of error, criminal trials duce an insurance policy on the deadper under the new rules of evidence will less son made payable to the defendant. How The final 2 portions of this rule, subsec and less resemble the ambushes that they ever, the existence of this policy is ir tions d and e deal with matters that often are in practice today. Presumably, relevant unless the Commonwealth can have been well-established in Kentucky. such practice will also increase the use of show that the defendant knew about it. Subsectiond restates the principle that a RCr8.09 conditional pleas and this might Oftentimes the state is not able to put its defendant may not be cross-examinedon be countedas one of the reasonsunderly case on in a logical progression of wit matters other than facts relating to the ing the introduction of the motion in nesses. Therefore, subsection b suppression issue if he chooses to testif’ limine rule. authorizes the trial court to admit the at the suppression hearing. Subsection e evidence subject to the laterlinking up by is a rule enactment of the principle set out other witnesses. This is not anything new in Crane v. Kentucky, 476 U.S. 683, 106 David Niehaus inKentuckypractice, but itis a clear state S.Ct. 2142, 9OLEd.2d6361986, which Jefferson District Public Defender ment of the rule. The trial court’s deter says that the due process clause and the 701 West Jefferson Street mination here is simply that there is or Sixth Amendment of the U.S. Constitu 200 Civic Plaza there will be enough evidence that thejury tionrequirecourts to allowpresentation of Louisville, KY 40202 could fmd the existence of the necessary facts and information developed at a sup 502 625-3800 supporting fact. It is important to remem pression hearing at the trial of the case for

June 1990/TheAdvocate 43 A Look at the Relationship between ANGER & AGGRESSION

JOHN RANSEEN LANE VELTKAMP

ANGER occur without any evidence of anger i.e., gressively. a calculated contract killing. Anger is defmed as an intense emotional GENERAL FACTORS PREDISPOS. state induced by displeasure. Nevertheless, under most circumstances INGTOWARD AGGRESSION there is some relationship between the This emotional arousal generally results emotional experience of anger and the A variety of biological, psychological, en from some real or imagined provocation. behavioral response of aggression. The vironmental and cultural factors can be It involvesfeelings within the body rapid questionof interest is why do somepeople identified which predisposean individual heartbeat, tenseness, etc. coupled with seem soprone to resorting to aggression toward anger leading to aggression. thoughts of being mad, upset, or indig in theface ofangry emotions while others Thesefactors overlap and are interrelated nant. walk away or cope in some healthy, ap but we will separate them for simplicity. propriate manner? It is this issue that we While each of these factors is related to willtrytoaddress. anger and aggression, they are not neces Angeris a co1nxnon emotional reaction. In sarily causative. That is, none of these fact, studies have generally found that individual factors cause aggression but many normal people become mildly to In a general sense, research suggests that they tend to increase the likelihood of moderately angry on a daily basis and anger leads to aggressive behavior aggression occurring particularly within some admit tobeing angry several times a depending upon the severity of the the face of angry emotions. day. provocation, situational constraints, ex pected outcomes, and the person’s usual BIOLOGICAL FACTORS It is a myth to believe that anger is merely manner of coping wit1 anger based on a disruptive emotion. It plays many hilher1eaminghistory. That is,probably Biological factors which increase the beneficial roles. For instance, anger can all of us have the capacity to respond to likelihood of aggression seem to share a our feelings of anger with aggression if common help mobilize behavior to confront some severely provoked. tendency to increase aggression injustice. We dare say the average prose Few ofuswouldresort by making the individual more impulsive cutor probably mobilizes a fair amount of to aggression, however, without fully when angered. That is, such factors render anger forthis purpose. Manyin the coun evaluating the situation: the nature of the a person more likely to act rather than selingprofessions have noted that the lack threat, our ability to act aggressively, the thuik, this being the essence of irnpul appropriateness of such a response, and sivity. of anger expression canlead to problems the Although thinking may leadons to within important relationships such as likelihood ofretaliationofpunishment the conclusion that an aggressive act is for such an act. Aggression is more likely for, marital, parent-child, between friends, when the called more likely, the tendency to etc. This is becauseemotions are a critical expected outcome is seen as think about a situation will allow the in aspect of interpersonal communication favorable if such a responseis utilized. dividual to consider alternative and more and anger is a normal and frequent emo appropriate ways of dealing with a dif tion. An absenceof anger expressionoften Howonemakesthesedeterminationsisa ficult situation in which he finds himself means that it is being denied or repressed. result of complex factors involved with angered. Consequently, the impulsive in Consequently, it will notlikely behandled their personalities and learning histories. dividual is more at the whim of his/her in a straightforward and clear manner Some individuals are more likely to see a emotions rather than rational thought resulting in confused communication wide variety of events as threatening and processes. within importantrelationships. so evaluate many trivial provocations as serious matters. Others have limited The most common biological factors re ANGER AND AGGRESSION capacity to correctly evaluate situations latedto aggression are alcohol and/or drug and expected outcomes particularly when use and various neurological events, the It is anger’s relationship to aggression, they are angry. Further, they may have most common being head injury and however, that is of interest of those in little concernor interest in the outcome of seizure disorder. In a very general sense volved in the legal profession. their aggression, even if this might be substanceabuse leads to increased aggres something distinctly punishing such as a sion by disinhibiting emotional and be lengthy jailterm or even a death sentence. Aggression has to do with hostile, in havior responses in certain individuals. Finally, some people have unfortunately That is, normal coping processes which jurious, and destructive behavior which learned that aggression is an acceptable can result from the emotion of anger. are used to inhibit anger and aggression way to deal with their angry feelings. For are reduced. Again, most anger does not result in an example, parentsmodeling aggressivebe aggressiveresponse. It must also bepoint havior can teach children to behave ag ed out that extremely aggressiveacts can Further, under the influence of alcohol

June l99OsThe Advocate 44 and drugs the individual is less able to PSYCHOLOGICAL FACTORS Beyond simply learning that aggression is examinealternate and more appropriate appropriate and also not learning ap courses of action when aroused by anger Psychological factors involve traits, propriate responses to angry feelings, the and is less able to anticipatenegative out predispositions, and attitudes which child subject to aggressive acts including comes to an aggressive response. Conse render the individual more prone to act emotional abuse begins tobelieve he/she quently, the individual who is under the aggressively whenarousedby angry emo is of little value and feels powerless, par influence of a psychoactive substance or tions. Although there are many ticularly in relationships. This contributes craving one, due to withdrawal, is more psychological theories of personality to futureacts of aggression. Everyone has prone to experience angry emotions and development, probablythe most helpful in a need to gain a sense of efficacy, self- respondin an impulsive, aggressive man understanding the development of aggres worth, andcontrol overtheirenvironment. ner. sive tendencies is social learning theory. Stated simply,this means that people tend The abused child may learn that aggres Unfortunately, alcohol and drug use be to behave within interpersonal situations according to what they have learned or sion is a simple and effective way to ac haviors are very difficult to change. The experienced in their lives, particularly complish the psychological task of gain rewarding properties of these substances within the context of important relation ing control and mastery in their world. such as feeling better physiologically, The child subject to aggression also learns reducing anxiety, and possibly feeling a ships. that people are threatening. This attitude heightened senseof well being and control may generalize to many people in a in one’s life far outstrip the potential Of importancefor our topic is what people variety of relationships. Understandably punishing consequencesofsubstance use. have learned about the emotionof anger, such individuals view themselves as vic Althoughthesepotential punishing conse how to deal with it, and how to respond timized, are oftenon guard, and often look quences are often more devastating i.e., within angry interpersonal situations. for subtle evidence of provocation and medical complications, traumatic acci Again, stated rather simply, some people threat. dents, interpersonal disruption secondary have unfortunately learned that aggres toaggression, they are usuallyless iinme sion is a common and appropriate diate than the rewards. As noted earlier, a provocation leading to responseto feeling angry. They have also anger and aggression cannot always be learned that there can be immediate readily identified-it can be more in the also render rewards to becoming angry and aggres Neurological problems may sive. For example, some have learned that imagination of the person who feels the individual prone to experiencing threatened. This, then, reflects having to angry emotions coupled with greater im aggressivebehavior can beused to quick people ly and effectively control or manipulate learn about within an environment pulsivity. The 2 most common neurologi others. in which the interpersonal cues signalling cal problems linked to aggressiveness are threat and provocation were subtle, con traumatic head injury and seizure disor fusing, or even nonexistent. Within der. These two problems are notmutually psychiatric nomenclature, we often refer exclusive as head injury is a common to such people as paranoid. etiologyof seizure disorder. Although not explanatory, psychiatric Studies have consistently found a high classification helps to categorize various prevalence of head injury and seizure dis interpersonal styles and their relationship order in juvenile delinquents and prison to anger and aggression. Within children populations, particularl those incar and adolescents, the category of conduct cerated for violentcrimes. disorder denotes a general behavioral pat tern of resorting to unsocializedbehavior Again, there is very little evidence to in including aggressive acts. Not surprising dicate that specific types of brain injury or ly, studies find that factors predisposing to seizure disorder are, in any way, directly conduct disorder include abusive be causative of anger and aggression. Rather, havior within the family, parental rejec these problems render the individual less tion, family instability, and parental al able to adequately cope with a variety of cohol abuse. situations particularly when aroused by by MM R..dy anger. Such individuals often have very Consequently, it is not surprising that Some adolescents who exhibit conduct poor frustration tolerance and, becauseof many individuals whoresort to aggressive disorder will display this pattern of be their injuries, are continually placed in acts have learned this style of responding havior into adulthood, often intensified frustrating circumstances. within their family of origin. Again, in and in greater conflict with societal very simple terms, this behavior has been. norms. Such individuals may be diag A mediating factor is the fact that head directly modeledby parents or significant nosed as antisocial personality disorder. injury and seizure disorder often lower others. Often the person prone to aggres This denotes an individual with a per one’s level of cognitive functioning i.e., sion has been a recipient of aggression vasive inability toconformhis behavior to intellectual ability, memory and learning, within an abusive family. In addition to societal standards, a tendency to handle judgement, etc.. Consequently, the per experiencing erwitnessing child abuse or anger with aggressive acts, and a lack of son with such difficulties typically has neglect, many children witness spouse remorseand concernwith the consequen less ability to manage anger with ap abuse. This modeling teaches aggression ces of such acts. In essence, these people propriate coping techniques interper as a means of handling frustrating inter have an incapacity to cope with anger in sonal problem solving, displacement of personal situations. It gives the message an appropriate manner since they fun aggression, etc.. Additionally, they may that aggression is an acceptable way of damentally lack the ability to appraise the have less ability to profit from experience dealing withanger. In many cases aggres likely outcome of aggression, partly be and learnnew coping techniques. sion is so common that it becomes a way cause there is a lackof normal concernor of life. guilt with such acts.

June 1990/The Advocate45 Antisocial personality disorder is distin children, domestic violence, spouse APPROACHES TO ANGER guished inpsychiatric classification from abuse, and abuse and exploitation of the MANAGEMENT intermittent explosive disorder which in elderly is overwhelming. Some say these volves isolatedincidents ofimpulsive, ag problems have reached epidemic propor There areno easy solutions to the problem gressive behavior with extended periods tions. A culture’s acceptance or rejection of managing anger appropriately. For of socialized nonaggressive functioning. of these aggressivebehaviors is critical in most people the management of anger is It also indicates that the aggressive acts terms of the frequency and intensity of not a problem. For those who engage in are notwithin the context of severe cogni their manifestation. aggressive behavior it usually is. tive impairment organic or mental retar dation diagnoses, loss of contact with A variety of culturally sanctioned at An assessment of an individual with reality psychotic diagnoses or related to titudes and behaviors contribute to this problems controlling anger must consider a mood disturbance bipolar affective problem. Too often women and children all of the factors which render that in diagnoses. are considered as property to be used by dividual prone to aggression-what men. This includes being used as a target biological, psychological, environmental, By its very nature, antisocial personality for the venting of frustrations. Thus, we and cultural variables are involved. In disorder is a diagnosis often given to an find that until recently marital rape was regard to biological factors, neurological individual who is within the context of nota felony in our state. Too often victims and neuropsychological evaluations are legal proceedings. Consequently, it is a are viewed and treated as the ones who occasionally helpful to delineate diagnosiswithmany connotations andim provoke violence thus condoning the neurological deficits and effects upon plicatIons both within psychiatry and the violent act. Too often police refuse to cognitive and emotional functionmg. legal realm. investigate domestic violence, in part, Psychological evaluationmay be of some based on a cultural attitude that family value in assisting a determination of the noted by Dorothy Lewis,4 it is not a matters should be handled within the degree to which a person’s aggressive ac As family. Too often we find that corporal tions are the result of specific environ diagnosis which should be given in a punishment of children is condoned and mental influences versus long-standing cavalier manner since it tends to imply encouraged and that children are not and more treatment resistant charac resistance to psychiatric treatment and a believed when they accuse adults of terologicalpatterns. need forstrong societal interventions. It is we consider abuse fair to say that psychiatrists and violent acts. Rarely do psychologists may not pay sufficient at of the elderly a problem-an attitude that It is with some hesitancy that we write tention to the implicationof rendering an adults can fend for themselves. All of about treatment strategies for indivilua1s antisocial personality diagnosis less judi these attitudessupport aggressionby tacit prone to aggression. Some believe that cial sympathy, harsher sentences, etc.. ly conveying a message that it is accept there arepsychotherapeutic approachesto Conversely, the legal system often does able. individuals witha characterological i.e., notseem to understandthat antisocial per antisocial pattern of reacting to a variety sonality disorder is a label for a class of The fact that there is a tendency for ag of situations with anger and aggression. behaviors, albeit undesirable, rather than gression to be more evident within the Many view incarceration as the treatment an explanation of these behaviors. context of poverty cannot be overlooked. of choice. For those who are not antiso The reasons for this are complex and, in cial, however, aggressivebehaviormaybe Again, it is our premise that aggressive part, related to the fact that substance very situation specific such that environ acting-out of angry emotions usually in abuse, family violence, and lower educa mental changes may succeed. In others, learned tion tend to be more prevalent in poor anger and aggression may result from the volves behavior as described in subcultures within our society. Further, intensity of stressors specific to that time previous sections. Individuals diagnosed within the contextof poverty there is often as antisocial personality disorderhave not in their life.Consequently, anger manage only learned to disregard societal norms, a lack of hope for improvement. This ment strategies and counseling may be they have also not learned to empathize fatalism leads to a great deal of anger and quite beneficial. withothers nor feel adequate remorse for frustration, the seeds of aggression. the consequences of their aggressive ac Essentially, psychotherapeutic strategies tions. Such lack ofremorse may also have Although the issue of gun availability is try to help the individual understand the been taught in the family of origin which controversial, the fact that guns are a fre genesis of their angry emotions and did not teach caring for others nor the quent fixture in many U.S. homes unfor reinterpret previously provokingeventsto feeling of sorrow and remorse. These tunately provides an environment in be nonthreatening. The individual is caring behaviors and emotions were which the means for anger to quickly and taught basic strategies of coping with usually not displayed to them with any impulsively spill overinto aggression and angry feelingswhichdon’trelyonaggres consistency. Abusive treatment within violence is readily available. Althoughthe sive action. Often there needs to be assis the family may lead a person to a point emotion of anger may be chronically tance in building self-esteem and gaining where he cannot invest in or commit to presentinsome individuals,its expression control in one’s life. Individuals with a others and only care about his own needs in aggressive acts tends to be short-lived healthy sense ofself-esteemsimply donot and desires. and impulsive in nature. The access to resort to aggression to deal with frustrat guns too often provides the means to ing circumstances, unless they aresevere ENVIRONMENTAL/CULTURAL quickly express anger in a single, impul lythreatened or subject to intense stress. FACTORS sive act. Guns arepart of our culture and their use is often modeled withinthe fami Finally, we are convinced that ifwe really The learning of aggression in response to ly. It is also modeled on television and in want to make a difference in terms of angry situations occurs within a specific movies, often in a glorified manner. treatment, effort should be placed toward environment and cultural context. It is strategies ofprevention. well documented that the United States offers its citizens a violent culture, The evidence of physical and sexual abuse of Legislation aimed toward gun control is

June l99OtTheAdvocate 46 needed. Most importantly, legislation THE MAN-MADE DISASTERS ON DEATH ROW aimed at reducing the vast amount of within essential, since The case of Robert Alton Harris, who was at least temporarily spared execution at San Quentin violence families is prison, has sharpened the debate over whether people who were themselves victims of severe it is usually within this context that a physical and emotional abuse wifi predictably victimize others. Mr. Harris, who was convicted of pattern of anger linked to aggression is the 1978 murderof2 teenagers, was to have been the first person executed in California in 23 years. formed. There is a needto facilitateearly The FederalCourt of Appeals in San Francisco stayed the execution and the U. & Supreme Court detection and identification of families at declined to lift the stay. His lawyers now hope to win a hearing at which to present the results of risk for abuse, education of parents to neuropsychological testing as evidence that Mr. Harrissuffers from an oipnic brain disorder, fetal learneffectivechild-rearing practices, and alcohol syndrome, and from post-traumatic stress disorder as a result of being severely abused as a treatment of bothvictims and offenders. child. The lawyers hope to have Mr. Harris’s sentence reduced to life in prison without parole. "Robert Hams wasn’t born evil he wasn’t born a monster," said Michael Laurence, a lawyer for the American Civil Liberties Foundation who is one of 3 appellate lawyers representing Mr. Harris. FOOTNOTES "If anyone had intervened when he was a child, I don’t think he would be on death row today." 1Averill, J.R. 1983. Studies on anger and aggression: Implications for theories ofemo Such arguments have gained littlesympathy for Mr. Harris among a public thatwas horrified because tion. AmericanPsychologist, 38,1145-1160. of the youth ofhis victims and the bizarre callousness of his ciimes. After kidnapping two 16-year old boys from the parking lot of a fast-food restaurant in San Diego, Mr. Harris forced them at gunpoint to drive to a remoteplace, saying he panned to leave themand use their car as a getaway 2Novaco, R.W. 1976. The functions and vehicle in a bank robbery. Instead he first wounded one victim, Michael Baker, and thenchased the regulations of the arousal of anger. American second, John Mayeski,, through the underbrush, shooting him 4 times and killing him. He then Journal ofPsychiatry, 133,1124-1128. returned to Mr. Baker, who was praying. A witness said he told the terrified youth, "God can’thelp you now, boy. You’re going to die," and then shot him in the head. 3Pincus, JR., & Tucker, GJ. 1985. Be havioralNeurology, Ch. 2.,Limbic system and violence. New York: Oxford University Press. The 2 boys were not Robert Harris’s first victims. At the time of the killings, he had recently been released from prison after serving 2 and 1/2 years for voluntary manslaughter in connection with the 1975 beating of a neighbor. Mr. Harris threw lighted matches on the manas he lay dying, court 4Lewis,D. 1989. ComprehensiveTe4bookof records said. As horrible as the killings were,many expertssay that those who commit such crimes Psychiatry, V. Section 28.2, Adult antisocial areoften people who have suffered injury to certain portions of the brain and also were subjected behavior and criminality. to violentchildhood abuse. By all accounts, Mr. Hams’s early life was a nightmare ofphysical and psychological terror at the hands of his parents. He was born 3 months premature to an alcoholic 5Treatment of Psychiatric Disorders, Vol. 3 mother who delivered him after being repeatedly kicked by his father. Foryears, he suffered severe 1989. Chapter 258, pp.2742-2743. beatings at the hands of his father, who also threatened to shoot him and sometimes choked him until he convulsed, witnesses said. JOHN D. RANSEEN, Ph.D. Asst. Prof. of Psychiatry and Neurology In the first clinical investigation of the neuropsychiatric status of oriminals condemned to death, a University of Kentucky Medical Center team of researchers headed by Dr. Dorothy Otnow Lewis, a professor of psychiatry at New York College ofMedicine University’s School of Medicine reported in 1986 that every convict they studiedhad a history of Department of Psychology head injuries, ofteninflicted by abusive parents. Itis possible, thereport concluded, "that death row Annex 2, Room 206 inmates comprise an especially neuropsychiatrically impaired prison population." Dr. Lewis also Lexington, KY 40536-00880 found that many ofhersubjects had suffered other kinds of severe physical abuse including burning 606 233-5828 and being beaten with horse whips. ButDr. Lewis and others stress that thedegree to whichphysical abuse and its resulting injuries can be linked to thedevelopment of violent behavior is uncertain. One study ofadults who were victims of severe abuseas children foundno differencein thehistories LANE J. VELTKAMP, M.S.W. of family violence of murderers and nonviolent offenders. Conversely, another study of convicted Professor, Child PsychiatryDivision murderers found that 67% had histories of being severely punished as children. Most such studies University showan association between earlyvictimizationand subsequent aggressive, although not necessari of Kentucky Medical Center violent, Collegeof Medicine ly behavior. Department of Psychiatry Annex 2 Room 206 l’he key, some experts believe, may be the combination of injury to the brain and a history of Lexington, KY 40536-0080 suffering and witnessing severe abuse. "Brain damage by itselfis not thereason people kill," said Dr. Ernest T. Bryant, a neuropsychologist who is director of neurology at the Kaiser Foundation 606 233-5828 Rehabilitation Center in Vallejo, Calif. Dr. Bryant, who has studied violentrepeat offenders in California prisons, said that coping with family abuse has taught them to act on their anger JohnD. Ranseen,Ph.D.. isanAssistantProfes sometimes homicidally. With certain brain injuries, control of impulses become affected. "When sor ofPsychiatry, Neurology, and Psychology such people have an angry feeling, they can’tstep backand get objective distance," he said. at the University of Kentucky College of Medicine. He isalsotheNeuropsychologySec What might be calledMr. Harris’s neurupsychological defense is madepossibleby a 1985 Supreme lion Chiefatthe Lexington VA MedicalCenter. CourtrulinginAke v.Oklahoma. In that case, the court held thatadefendantis entitled to psychiatric Dr. Ranseen received his Ph.D. in Clinical assistancewhen the jury is considering the death penalty based on the prosecution’sargument that Psychologyform Ohio University and a post the defendant will continue to be dangerous. doctoral degree in Neuropsychologyfrotn the University of Virginia Medical Center. His scholarlyinterestsinclude neurops-ychological Charles Sevilla and MichaelMcCabe, the 2 San Diego lawyers who represent Mr. Harris and paid assessment, head injwy rehabilitation, and for his recent neuropsychological testing, argue that the psychiatrist appointed to aid the defense personality change associated with neurologi had failed to perform psychological tests commonly accepted at the time. calillness. In issuing the stay of execution, Judge John T. Noonan Jr. said that he could not determinewhether LaneJ. Veltkamp,M.S.W., isaProfessor,Child Mr. Harris had received competentpsychiatric assistance during the penalty phase of his trial. He Psychiatry Division, Department of recommended a hearing on the issue at the District Court level. On May 14, Mr. Harris’s lawyers Psychiatry, University of Kentucky Medical will attempt to convince a3-judge appellate panel to order such a healing. Center. His primary interests are Family Violence and Child Forensics. He has over 20 KATHERINE BISHOP, The New York Times, April 8, 1990 publications, over 200 presentations on a na tional and state level, and has testWed incourt over 300 times. "Copyright 1990 by the NewYork Times Company. Reprinted by permission."

June l99OPrhe Advocate 47 HABEAS CORPUS ABA President’s Statement Before the Committee on the Judiciary

L. Stanley Cbauvln, Jr.

The following is the statement ofL. Stan heard testimony from 82 witnesses, in It found a legal process stood on its head. ley Chauvin,Jr., President,American Bar cluding a United States senator, a gover Inadequate, often grossly inadequate, Association, before the Committee on the nor, state legislators, state and federal trial resources are devoted to state court trials, Judiciary ofthe UnitedStates Senate con and appellate judges, victims advocates, appeals, and postconviction review of cerning Habeas Corpus, February 21, prosecutors and attorneys general, capitalcases. Six states have a maximum 1990. defense attorneys, and representatives fee of$1500 or less for appointed counsel from death penalty resource centers,state to try a capital case. Only 1 or 2 provide bar associations, arid other public interest full compensation. Many states provide Mr. Chairman, and members of the com groups. The transcripts of its hearingcon no counsel for state postconviction mittee: tain the most complete informationon this proceedings, relying entirely on volun topic ever assembled. teers. The task force heard overwhelming I am L Stanley Chauvin, Jr., President of evidence of incompetent representationin the ABA. The subject of your hearing After much debate, the task force mem death cases-lack of knowledge of death today is so important to America’s bers issued, in November 1989, a 380 penalty law, overlooked objections, lawyers that I have chosen to appear per page report containing 16 recommenda failure to present evidence in mitigation, sonally to present their views. Rightly or tions. The views expressed in that report no briefon appeal, and similar failings. wrongly, the public assessesour legal sys are those of the task force and do not tem-andhence our legal profession-by necessarily represent the official position In contrast, massive resources are applied its perception of how well the criminal habeas corpus review, justice system is functioning. Capital or policies of the study grantor, the State to federal initially cases arethe most visible and notorious of Justice Institute. by volunteer lawyers; and now by com all criminal cases. Our legal system is not pensated counsel under federal law. doing a good job handling them today. Alltask force members didnot agree with all 16 recommendations. Three task force The result has beenthat the federal courts The ABA’s Criminal Justice Section ap members dissented. Twoof these thought have overturned more than 40% of the pointed a task force that studied this topic the task force did not go far enough in post-1976 death sentences they have intensively from November 1988 through restricting the availability of federal hab reviewed. This shows the importance of October 1989. This study was conducted eas corpus review. The other one thought continuing rigorous federal habeas under a grant from the State Justice In it went toofar. Anothermember, although review. It also dramatizes the inadequacy stitute. The task force included 5 judges not dissenting, also thought that the un ofcurrent state death penalty proceedings. trial and appellate judges from bothstate precedented restrictions went toofar. and federal systems, a prosecutor, a The association believes that the focus of defense attorney, a law professor, a law The ABA Criminal Justice Section used death penalty litigation should return to school dean, and a federal court ad the task force’s report and its recommen the state courts, and that the trial should ministrator. All had substantial ex dationsto craft a policystatement ondeath once again become the "main event" in a perience with death penalty litigation. penalty habeas corpus. The section’s capitalcase. That will notbepossibleuntil recommendations to the House of Deleg the states begin to provide competent A memberof the taskforce, JohnGreacen, ates made one change in the task force’s counsel at all stages of capital litigation. Clerk of the United States Court of Ap proposal concerning the appointment and peals forthe 4thCircuit and aformerChair qualification of counsel. The section’s The task force found a chaoticprocess. In of our Criminal Justice Section, is here recommendations are now the policy of many states even volunteer postconvic with me this morning. We are accom the ABA and the basis for my statement lion counsel is not available until an ex paniedby the taskforce’sreporter, Profes to this committee. They are the views of ecution date is set. State and federal Robbins the Washington the association and do notnecessarily rep sorTra from Col resent the official position or policies of habeas corpus proceedings are rushed lege of Law of American University. Mr. through, at the last minute, under the gun Greacen has asked me to state that he the State Justice Institute. A copy of this of a pending death warrant. The associa appears before the committee as an in adopted policy and its accompanying tionbeieves that every death penalty con dividual and that his views do notneces reportis attached. viction should be reviewed in an orderly, sarily represent those of his court. lawyer-like process during one round of What did the ABA Criminal Justice Sec stateand federal habeas corpus review. The task force held 3 public hearings and tion task force fmd?

June 1990’l’heAdvocate 48 The task force found a protracted process, with an average of 7 years from sentenc ing to execution. Some cases go on for 13, 15, or more years. The principle of res DEATH APPEALS judicata has never applied in federal habeas corpus jurisprudence. The associa tion supports severe, but not absolute, restrictions on subsequent habeas corpus proceedings,called"successor petitions," after thefirst fullround of state and federal postconvictionreview.

Finally, our task force found that despite all the time and endless litigation in volved, the current process fails to decide many constitutional issueson theirmerits. The association believes that an inmate is A proposal to streamline death penalty appeals should be changed to provide greater legal entitled to have some court address every protection forpeopic accused or convictedof murder, thefederaljudiciary’s policy-making arm non-frivolous constitutional claim. reoommend

current system is badlyflawed. What The 27-member Judicial Conference of the United States proposed modifig a plan by a The committee appointed by Chief Justice William IL Rehnquist and headed by retired Supreme reforms do we recommend? For the most Court Justice Lewis F. Powell. part, our recommendations parallel the provisionsofS. 1757. But thebill doesnot The conference adopted the report at a private meeting. David Sellers, a spokesman for the go far enough in one critically important conference, said thejudges were divided over the issue. He declinedto reveal thevote. area. That area is adequate legal repre sentation. The announcement was hailed by civil libertarians who have attacked the Rehnquist committee’s plan. Leslie Harris of the American Civil Liberties Union said the proposed changes ware "a stunning departure" that could go along way toward protecting the tights of Our policy’s most important recommen defendants in capital punishment cases. dation calls upon all states to provide counsel at all stages of capital litigation. Senate Judiciary Committee Chairman Joseph R. Biden Jr., D-DeL, called the decision to We call for specific, mandatory qualifica modify thecommittee’s proposal "an extremelyimportantstep forward." tion standardsfor counsel, basedupon the guidelines for qualification and perfor He said theversion adopted by the conference was similar to one contained in a crime bill he mance of counsel in death penalty cases is sponsoring and which is set to be debated on the Senate floor. adopted by the association in February 1989. What do the ABA guidelines pro TheJudicial Conferenceurged that anystate choosing to adopt thestreamlined proceduresmust vide? adhere toaproposednationalstandard for determining which lawyers are qualified to represent defendants in capital cases. -They call for each state to establish an The judges endorsed a proposal by the American Bar Association, which recommended independent appointing authority to softening the impact of the Rehnquist committee’s plan. develop qualification and compensation standards appropriate for that state, to Thejudges, whose views are expectedto carry considerable weight in Congress, also proposed recruit and train lawyers tohandle capital changing the plan to make it easier for death row inmates to file repeated appeals challenging cases, to certifythem as competent in this their death sentences. specialty area, and to make the actual ap pointments ofcounsel in all capital cases. The Rehnqinst committeeproposed the states limitdeath row inmates to 2rounds ofappealsin state and federalcourts. Oneround would challenge a condemned individual’s rights. This is the essential component of our Iftheplan is approved by Congress. states that decide to go along would be required to assure counsel recommendations. So long as legal help to death row inmates at taxpayerexpense throughout the appeals process. That is not statecourtjudgescontinue tomake capital the case now. case assignments from the regular list of attorneys for appointment in criminal The ACLU and other groups that attacked the original plan said its promise of more legal help fordeath rowinmates is an empty onebecanseitoffers no assurancethatstate-appointed lawyers cases, the current problems will continue. will be competent. Unskilledattorneyswill continueto make errors during trial; subsequently ap There aremore than2,200 convictedmurderers ondeath rows nationwide. Only 121 executions pointed counsel will leave no stone un have occurred since theSupremeCourt reinstated capital punishment in 1976. turned in their efforts to getdeath senten ces reversed becauseof those errors; and The average delay between conviction and execution is more than 8 years. state and appellate courts, and federal habeas corpus courts, will bear the brunt Thejudicial conference also announced it is giving news organizations more time to present of correcting them. The only long term their viewson letting television cameras into federalcourtrooms. Theconference will postpone answer is to do it right the first time. until September its report on televising federal court proceedings. "Basically, the door is still open on this issue," Sellers said. The conference has opposed such -The guidelines set objective qualification televisedcoverage. standards, describing experience needed for trial, appeal, and postconviction lead Copyright 1990 by The Associated Press. All rights reserveS Reprinted by permission.

June 1990/The Advocate 49 and co-counsel would apply. Once the state’s procedure toaddressa defaulted claim on the merits. were upheld,however, the authority’s in The inmate would have the burden of dividual certification and appointment proving that the default was the productof -They recognize realistically that a state decisions would thereafter be immune ignorance or neglect, rather than a tactical may not have sufficient attorneys with from challenge. The actual performance choice. A federal court could also address those qualifications available to try all of a certified attorneywould be subject to a defaulted claim iffailure to do sowould capital cases. If so, a state appointing challenge only under the current, limited result in a "miscarriage of justice," a authority may apply less stringent, but Strickland v. Washington standard. Since limited standardcurrently applied by the nonetheless high, qualification standards. the accusedwould have competent repre Supreme Court in this area. This recom sentation, litigation concerning ineffec mendation is the same as Section 2259 -The guidelines call for states to make tive assistance of counsel would decrease c2 in S. 1757. expertandinvestigative services available substantially. Appeals andpostconviction tothe defense proceedings could focus instead on the The second ofthese recommendations ad merits of the other legal and constitutional dressesretroactivityof new constitutional issuespresented. -Finally, theyrequire adequate compensa doctrine, limited lastyear by the Supiesne tion forappointed counsel-"areasonable Court in Teague v. Lane and Penay v. rate of hourly compensation commen Iwill review more quickly the remaining Lynaugh. Those cases produce the as surate with provision of effective assis parts of the association’s policies. bitrary rule that anew constitutionalinter tance and reflective of the extraordinary pretation will be applied only to cases pending on direct appeal responsibilities inherent in death penalty To eliminate the last minute chaos of the litigation." current process, we recommend an auto matic stay, imposedby the federal court if Adeathrow inmatewhosecaseispenng The incentive for a state to comply must necessary, to enable oneroundofstate and in habeas corpusreview is nowdenied the be strong. The procedural defaultrule, the federal postconvictionreview at an order benefit of a new constitutional rule that presumption ofcorrectnessof statefactual ly pace. These recommendations are the applies to anotherinmate, perhaps evena findings, and the doctrineof exhaustion of same as Section 2257 a and b of S. co-defendant, whose case has not state court remedies would not apply to 1757. proceeded so rapidly. It produces an in proceedings in which adequate counsel is centive for defense counsel to stall their notprovided. To address the problem of endless delay, direct appeals and initial Supreme Court it is proposed that there be a 1-year statute petitions for certioraai S. 1757 acknow Attached to this statement, as part of the of limitations on filing federal habeas cor ledges this problem. reportandrecommendations to the House pus petitions, tolled during the pendency of Delegates, is suggested statutory lan of state and federal court proceedings. The ABA believes its standard would be guage to implement these recommenda The ABA recommendation is the same as easier toapply thanthat currently included tions. We have previously provided the Section 2258 of S. 1757. Further, we in Section 2262 of S. 1757. The ABA committee with copies of the task force proposed that there be stringent limita policy would apply a new constitutional report, including its dissenting and con tions upon successor petitions, even rule retroactively if "failure to apply the curringstatements. though filed within the 1 year statute of new law would undermine the accuracy of limitations. Our standard for successor either the guilt or the sentencing deter Let me summarize these recommenda petitions is the same as that contained in mination." Section 2257c of S. 1757. It is critically tions on counsel, which are the most im that federal portant parts of the ABA policy, and important court jurisdiction to The ABA House of Delegates was aware which arenotaddressed adequately in any entertain successor petitions not be that the policiesproposedby the taskforce of the bills the committee is considering limited to petitions claiming innocence of differ significantly from those of the Standards for both qualifications and the capital crime committed. Innocence is Powell Committee, on which S. 1760 is compensationwould be set and applied in rarely at issue in death penalty cases. The based. The recommendations of the eachstateby independentstate appointing real issue is the appropriateness of the Powell Committee,however fall far short authorities. Those standards would have death sentence. If federal jurisdiction to of an adequate, appropriate and complete tobe at least as stringent as those provided entertain successor petitions is limited to response to the current problem. would questions of innocence, there wouldbe no by federal law. The states have 2 federal remedyfor a Brady violation by a years to establish appointing authorities, The ABA Task Force had the benefit train lawyers if necessary, and certify state prosecutor whoknowinglywithheld of capital case representation. mitigating evidence that might have con Powell’s Committee’s report; but that them for vinced a jury to sentence the defendant to committee didnot havethe benefit of the life rather than to death. That result would ABA taskforce’s workproductatthethns Critics claim that these provisions would apply even though the defense had no it issued its report. Our report contained introduce a whole new era of habeas cor basis for knowing the evidence existed testimony from state judges and lawyers pus litigation-did the defendant’s attor and first discovered it only after the first actively involved in death penalty litiga ney possess the qualifications requiredby habeas corpus proceeding had ended, The tion. The Powell Committee report’s law? This is specious. In fact; these ABA finds tbat result unacceptable. So recommendations need tobe bolstered in provisions greatly simplify the current should the Congress. several areas: process, which today involves the issue of ineffective assistance ofcounsel in almost expected that each Finally, we include 2 recommendations to 1. It does not address the root cause of the every case. It can be assure that constitutional claims are ad problem-the inadequacy of state trial state’s appointment process, and its dressed on their merits. We recommend and appellate representation. Its recom qualification and compensation stand that federal law be amended to recognize mendations begin withthe state poatcon ards, would indeed be challenged in one to which the new law an attorney’s "ignorance or neglect" as viction process. of the first cases sufficient cause to enable a federal court

June l990tTheAdvocate 50 2. It allows states to opt in or out of its provisions. Reform will come only when reluctant states are given incentives to provide theresourcesnecessary toaddress LAWYERS FOR DEATHROW the root causes of this problem. State Legislators and Bar Presidents gave con sistent testimony to our task force on the difficulty of obtaining adequate ap propriations for defense of capital cases.

3. Itleaves entirely to the states the ques tions of the qualifications and compensa tion of counsel, without the guidance of a minimum standard.

4. It takes not position on the serious problems of current law governing proce dural default and retroactive application of new constitutional doctrine. The recent stay of execution granted to Robert Atton Harris, the double murderer who was 5. Its statute of limitations is only 6 scheduledto die in California’s electric chairlastTuesday, has angered manypeople. They see months. There has never been a limitation the stay as further proof that the capital-punishment appeals process in the United States has on habeas corpus. We should move become asystem to frustrate justice throughendless, duplicative petitions. cautiously in establishing one. In the 11 years that Mr. Harris has sat on death row, his sentence has been upheld repeatedly byboththestateandUSSupremeCouzts. ButonMondaytheUShighcouztblockedthe 6. Its only exception for successor peti execution pending further hearingson Harris’spsychiatric condition. tions is factual innocence. Federalcourts must be able to address egregious errors Harris’s case isn’t unusual. On average, the post-conviction appeals process takes eight years inthe sentencing phase ofthe trial aswell. Does theappeals process in capital casesneed streamlining? ChiefJustice Rehnquist thinks so, The ABA believes its recommendations as does a committee he appcnnted chaired by retried Supreme Court Justice Lewis Powell. constitute a balanced and comprehensive approach to the solution of very serious The Powell commitreerecommendedlastyear that habeas corpuspetitions-the deviceby which an inmate challenges the constitutionality ofhis conviction and sentence - be limited to oneof problems affecting the functioning of our the state courts and one in the federal courts. Constitutional claims not raised in those two justice system. They take account of the "collateral" challenges would be lost. But the limits would apply only in states that provide legitimate rights of persons sentenced to competentlawyers to cailtaldefendantsduring the statecoliateralproceedings lawyers already the ultimatepenalty of death. They recog areprovidedto acapitaldefendant for trial and other appeals. nize the rights of the majority of the citizens of those states that have decided Last month apanel ofsenior federaljudges softened thePowell committee’s recommendations. that capital punishment is a necessary and As revised, they aremereconsistent withproposals made by the American BarAssociation and proper part of their criminal laws. inabilisponsoredbySen.JosephBidenDofDelaware. TheABAandBidenplansalso Moreover, they recognize the paramount would limithabeas appeals, but not as drastically, and they go further in addressing the great requirement of a civilized system of jus need for more-qualified lawyers at all levels of the death-penalty process, especially the trial tice that the sentence of death will not be itself. carried out until it has been subjected to TheABA and Biden proposals are certainly better than the chiefjustice’s, especia1Iy in their extraordinary scrutiny. Unique among all emphasis on more-competent lawyeiing in capital cases most capital defendants, being poor, legal decisions, this one cannot be cor are defended by inexperienced court-appointed lawyers, over-burdened public defenders. or rected after it has been carried out. part-timevolunteers. Butto the extent they would limitdefendants’ rightsin the name ofexpediency, .11 theproposals My colleagues andlappreciatevery much arcwrong.The bugabooofthe dever lawyer manipulating gulliblejudges tobuythneforkillers the invitation to appear before the com is a myth. Ask any death-penalty lawyer ifit’s easy to get a sympathetic hearingfrom judges mittee to address this important issue. We on secondand subsequenthabeaspetitions. Mostjudges skepticallythink thatifa lawyerdidn’t will be glad to answer any questions the raisea constitutional issue the first time around, it probablydoesn’t have merit anyway. When, committee may have concerning our as in Harris’s case, defendants are granted several bites of the habeas apple, it’s because truly recommendations. serious new issues are raised. We don’t need to shorten the mute to the hangman’s noose. Our traditionof due process is far L STANLEY CHAUVIN, JR. too precious to play political gameswith. American Bar Association 1800 M Street, N.W. Whatwe really need - until we take the wisestcourse andabolish capitalpunishment altogether Washington, DC 20036 - is better lawyers for capital defendants which would itself reduce the number of appealable 202331-2200 issues. And we need congmssional reversal ofrecent Supreme Court decisions that limitthe retroactive application of newly established constitutional rights Those rulings have made capital punishment faster, buteven less fair. Christian Science Monitor, April 6,1990. Reprinted by permission from the Editorial Page of The Christian ScienceMonitor @ 1989 TheChristian SciencePublishing Society. All rights reserved.

June 1990/TheAdvocote5l MORGAN COUNTY PRISON

EASTERN KENTUCKY jails, referred toas controlled intake,con CORRECTIONAL COMPLEX tinues toescalate, inspite of the increased use of community programs. Whenstate STATE-OF-THE-ART inmates are housed in a local jails as a INSTITUTION result of no bed availability in the state institutions, there are increased costs in EasternKentucky Correctional Complex, travel, staff overtime, and medical costs. Cabinet’s newest These costs are the Correction Cabinet’s the Corrections facility, responsibility, began accepting inmates in February, with the most significant 1990. The medium security institution, being the medical costs. Thesecosts have locatedinMorganCounty will house 530 risen from $260 per inmate in FY 84-85 men in its first phase with the second to $653 in FY 88-89. 530-bed phase under construction. This facility will provide a full range of ser KATHY BLACK-DENNIS vices, including an academic program Manager, Planning & Evaluation Branch from ABE toa bachelor’s degree through Commonwealth of Kentucky Morehead State University. A separate Corrections Cabinet kitchen for Food Services Management Office of Administrative Services Michael O’Dea classes is also provided. State Office Building Prankfort, KY 40601 we’re talking school, literacy programs, The vocational educational program will adult basic education, GEl, college and offer computer literacy, industrial tech ORAL INTERVIEW vocational. Also included in this area nology, and vocational building trades. would be groups, for example, AAwhich The prison industries component will WITH WARDEN is Alcoholics Anonymous, Narcotics have two plants. The Phase I plant will MICHAEL O’DEA Anonymous,andotherself-helporganiza manufacture fine furniture and wood tions. I think that this institution canbeby ucts. CorrectionsSecretaryJohnWiggintonan fartops in the state in that area. nounced the appointment of Michael The state-of-the-art electronics systems O’Dea as warden of theEasternKentucky Is It your Intention to rehabilitate the In ixicludernicrowave, motionsensors,video CorrectionalComplex, a mediumsecurity mates In your prison? camera, a 3-phase locking system, and a prison on June 16, 1989. computer enhanced fire control program. Well we’re notthe changing factor. We’re The "Man-Down" System, inwhich staff What are your most critical concerns only the catalyst. In other words, we have wear transmitters, will trigger an alarmin about managing this new prison? the means whereby a man can rehabilitate the control box if the wearer is bent over himselL We do have some "carrots" but for a certain period of time, and will pin First is the initial start-up. Then the big that’s pretty much the extent of it. Our point the location of the wearer. gestconcernis double-bunking. This is an whole system is really built on a posi institution designed for 530 inmates. tive/negative reinforcement system. Starting inJuly, we’readding another400, The dormitories are designed to function bringing the total to 930 inmates. We will How does It make sense to spend $89,900 as self-contained units, thus providing be able to handle this increasebetterthan to build a cell at the Eastern prison? flexibility in housing different classes of any other institution in the state because offender. of our modem technology and the amount The$89,900 figurewhich you quoted rep of space allotted per inmate.Still the ideal resented construction of 512 cells plus 48 CONTROLLED INTAKE is to manage it at a 530 level. segregation cells. So a total of 560 beds. Thiscostalso representssupport services: INCREASED NUMBERS As Warden, what are your goals and the administrationbuilding,food services, AND visions? gym, maintenance, vocational schools, all COSTS of which will be utilized by Phase II and While attention is focused on the over Weli first of all, and I guess it’s pretty not duplicated. crowded conditions of primary, just to get the institution up and prisons, a more rnnumg. Long range goals would be to, volatile situation exits in our local jails. take advantage of the excellent program WhenPhase II is complete the total cost The number of state inmates in county space. Now of the institution will be almost $73 mil when I say program space, lion. That represents a total cost of ap

June I99OtTheAdvocate 52 proximately $70,000 per cell rather than mum never enter prisonnow. ky’s rate of locking people up is less than the $89,900 first quoted. other states in the area or region. People How can we preventcrime? would think, well you’re overcrowded, What’S the projected date on that? you’re locking up too many. But we are Education at the lowest leveL locking up fewer than other states. I June ofnextyearPhase his scheduled to believe we are using different alternative be complete. The projected populationin Do you see Inmates coming Into your program from half-way houses toprivate Julyof9lwillbe l,500inmates.Thiswill prison as having educational deficits? prisons to local jails to home incarcera further redduce the cost per bed since tion. Until we solve the numbers problem, double-bunking was notanticipated in the According to the last study we’ve done, we’re going to have to try and deal with original cell cost. quite a few have G.ED.’s and above - all of these by working together. more than we thought in the beginning. In what ways are Wardens most But yes, many do have a lot of learning You’re a person with, as you saId 18 years misunderstood? difficulties which may have led tonega of experience, do you think we can build tive experiences in school in the past. enough prisonsto lock up our offenders? I don’t know, you might need to ask my Maybe they felt "marked as a loser." Now staff that one. As far as being misunder what we’ve seen of prison is that our Whatever we build we’ll fill. I think we stood, I think we’rebeyond the television whole system is geared toward more in havequite aback-up in thejails evensince image of a prison warden. dividual learning, and a lot of positive we opened in February.There are some reinforcement. Many inmates realize what 1,500 inmates now backed up in jails. I Do mostof the Inmates thatyou work with theymissedas ateenagerbydroppingout guess we do needtolook at alternatives to have a good relationship or rapportwith once they’ve been part of the academic you? program in prison. Do you feel there should be a distinction Itry to be fair, yes, I’m do not always tell Do you have any thoughts on the use of made between property crimes and them what they like to hear I have a job positive reinforcement versus negative violent crimes? and the number 1 priority is security, and reinforcement? Ikeepthatprimary inmy mind. Then after Yes, but to a certainextent. Whenyou say security, we startworking on programsfor My background is psychology tells mewe propertycrimes, what ifthis is the thirdor inmates to rehabilitate themselves. Quite have both in prison. For example we’ve fourth time this man’s committed this afew inmates, thoughpeopledon’trealize got good time that we give inmates for crime? Many timesthat is thecase. Do you it, do get outand don’t come back. good behavior. On the other hand, if an keep putting him back out? There’s al inmate has a disciplinary action, we take ways going to have to be some type of the "good time" away, which is negative limit. Another priority is good community rela behavior. We also have what we call tions. We try and be as open with the segregation cells where we put a man in The Kentucky population Is 8% black and public as possible. Ithink the image years We have other positive reinfor agowas, whatwentonbehindprisonwalls isolation. yet there are 32% blacks In Kentucky prison walls, but modem cement areas, such asTV, recereation and prisons. Why do you suppose that is? stayed behind telephoneprivileges.So our wholesystem dayprisons areinvolved in the community is built on a positive/negative reinforce I don’t know. But it’s pretty standard. or have thecommunities involved in them ment. We’ve beenfluctuating forthe lastseveral through volunteers. years between 30- 33%. From your perspective what are the And do youthink thatbalance contributes causes of crime? to the success of the system? Do you have any otherthoughts you’d like to share with us? Yes Naturally positive reinforcement is I’m amazed over the years how much more important than negative, but some No, but Ithink that if you have an oppor alcohol has had an effect upon crime. And have also this recent wave of drugs is a major times if positive doesn’t work, you tunity sometime, I think it would be problem. toutilize the negative. beneficial for you to see the institution. I think that Kentucky’s come a long way. Do you feelalternatives to prisonsshould Our prison systemis an excellent system. We’re seeing a lot more violent crime. be used more In Kentucky? Kentucky is known for its modern prison Years ago, when I was in minimum system. Our education programs are rated security, a lot of people we had in mini- Yeah. Well, I sayyes; right now Kentuc tops in the country.We rank at the bottom

Construction & Operating Statistics For Eastern Kentucky Correctional Complex

PHASE I PHASE!! TOTAL Staff Complement 242 93 335 Total Cost $45 million $28 million $73 million Scheduled Completion Time 39 months 24 months ZYears, 3 months Cost Per Cell $89,900 $51,000 $70,450 Personnel Costs $4.8 million $l.8million $6.6 million Officer inmate ratio not yet available

June 1990/The Advocate 53 or close to thebottom in public education, Anthea is both assisting and advising Ms. believe this is because of the addition of butrank at the top in correctional educa Tor in screening these prisoners as they Carter County since December of ‘89. tion. That says a lot for the system alone. amvefrom other prisons and some direct Our 2 secretaries, Bev Thompson and Ar Wehope we’rehelping those inmates who ly from county jails. Primarily they will leneHowerton, have done a goodjob han- sometimein life say, "hey I’m ready. You find out the status of each prisoner’s case. dling the extra caseload and now the new know I’m tired of this type of life." If the prisoner is already receiving help - records. from some other office, our own or some of the larger areas office or private attor WARDEN MICHAEL O’DEA neys, those offices and private attorneys All of the attorneys and staff are in good EasternKy. Correctional Complex willbe contacted and a decision will be spirits down here in Morehead, but P.O. Box 636 as togetherness is definitely overrated. West Liberty,KY 41472 made to whether we should enter our We’reall eager to get into our new offices 606 743-2800 appearanceas counsel ina case, ormerely assist the other offices orprivate attorneys where we canbreathe alittle and we won’t in communicating with the prisoners. be so close. The 40-year-oldO’Dea began his corrections Eachcase will be reviewed to see if there career in 1972 as a correctional officer at the ismeritinthecaseforanRCr.ll42appeal HUGH i. CONVERY BlackburnCorrectionalComplexinLexington. or belated appeal under CR 60.02.. If the Assistant Public Advocate Working his way lc through the corrections ranks he arsumedtheposition ofacting warden prisoner is already doing a prose appeal, Director DPA atBlackbirn in 1980 before leaving to take the we will merely listen and advise unless Rowan/MorganlElliott/ warden’sjobattheRoedererFarm Center. He new facts convince us that the appeal has CarterCounty Office was warden at Roederer Farm Center in La merit and should be revised. We will also P.O. Box 638 Grange when tappedfor thewarden’s position help on detainezs filed at the prison from Morehead, Kentucky 40351 at Eastern Kentucky CorrectionalCompl&z. courts in other states and from courts in 606784-6418 Kentuckyand assist on federal habeas cor During his 9 years as an Oldham County resi pus actions onoccasion. In new cases, if dent, O’Dea served on the Board ofDirectors the case has no merit for appeal, we will INMATE POPULATION ofthe United Way and as the 1988 campaign so advise the prisoner and have chairmanforthe cowuy. Hewasamemberand a prison president ofthe local Rotary Club and served legal aide assist him on his prose action. As of February 23,1990, there were 6437 on iheBoard ofDirectors ofthe OldhamCoun inmates in our state institutions: tyHuinane Society. Ms. Boarman is working on a plan so that Maximum Security no inmate will be deprived of legal coun Kentucky State Pemtentiaiy, A graduate of the University of Kentucky, sel and she is in theprocess of printing a O’Dea received his bachelors degree in Eddyville 798 psychology in 1972. brochure listing all agencies in the area thatthe prisoners cancontact forfree legal MediumSecurity advice on civil matters since we arenot to Ky. State Reformatory, handle civil matters. We feel that this LaGrange 1398 brochure will divert a number ofquestions Luther Luckett CorrectionalComplex, from the prisoners LaGrange 1013 DPA MOREHEAD on civil matters that NorthpointTraining Center OFFICE EXPANSION, haveslowed us down. Burgin 887 *EasternKy. CorrectionalComplex, AND CLOSENESS All of the West Liberty 91 attorneys in our office will be **Ky cross trained on post conviction work and CorrectionalInstitution for The Morehead Office ofPublic Advocacy will be asked to assist in that work from Women, has become a very close group [literally]. Pewee Valley 292 time to time. At the present time, Hon. Roederer Farm Center, The 2 secretaries share an office an attor Steve Geurin has handled circuit and dis ney and a paralegal share an office, and LaGrange 125 trict court for Rowan County and Hon. Western Ky. Farm Center, the new attorney and investigator that are JeanArenais handling Morganand Elliott Fredonia 320 to arrive shortly wifi have to fight over Counties, both circuit and district courts. TOTAL 6437 space in the library. We hope to be in our Both attorneys have been doing a terrific new office facilities within 60 days. Be jobin spite of large caseloads. Minimum Security cause of the addition of CarterCounty and Fiankfort Career DevelopmentCenter, the new prison, the legal staff at the Frankfort 178 Morehead Office will increase to 6 attor At this writing, we arestill 2 attorneys and Blackburn Correctional Complex neys, 1 paralegal, 1 investigator, and 2 1 investigator short, and this has caused Lexington 377 secretaries. severe caseload pressures for all of the Bell County Forestry Camp, attorneys. As the directing attorney, I’ve Pinevilie 193 had to handle Carter County and we are *Marion Adjustment Center, Phase I of thenew EasternKentucky Cor finding that the volume of cases in that St.Mary 449 rectionalComplex [EKCC] atWestLiber county appears to exceed the caseloads in TOTAL 1197 ty, Kentucky will house 500 inmates and the other 3 counties of Rowan, Morgan *,4jnjr security prison operated by a over 400 have arrived at the time of this and Elliott. Because of my involvement in private vender under contract writing. Paralegal, Lynn Toy, was sta Carter County, I have not been able to *Effvc2/14tern tioned at the prison even before the fully direct and assist in other areas of KentuckyCor prisoners arrived, and she’ll be our main rectional Complex EKCC was added to concernfor this office. As soon as a new the system. EKCC added 536 beds. intake person at the prison. Attorney An- attorney arrives to handle Carter County, thea Boatman, brand new to the Depart this problem will be solved, at least tem **Kentuky Correctional Institution for ment, but with a wealth of prior legal porarily. At this writing, and with over2 Women houses all state female offenders. experience, including some experience at months left in this fiscal year, we are 300 Eddyville years ago, will be our main cases above the previous year and we There were also 11,243 probationers and attorney forpost conviction at the prison. parolees under supervision.

June 1990ffhe Advocate 54 Cameras Replacing Court Reporters

Judicial mistakes come in almost inex Virginia has a pilot project underway in conviction using a Kentucky videotape haustable variety, but Judge Ellen B. one courtroom in Roanoke. And Mary transcript a "dismaying encounter." He Ewing found a novel one: She erased the land has installed cameras in the Prince said it did notprovide an "adequate basis only record of eyewitness testimony in a George’s County circuit court of Judge for review ... it was marginally audible." manslaughter case. Ewing is the chief Darlene Perry. The District is not using Because of the lack ofa written transcript, judge of the Louisville circuit courts the video. However, 4 federal courts around "the parties could not engage with the only major court system in the nation that the nation are expected to begin an ex bench in resolving simple factual ques has completely eliminated paper and gone perimental program within weeks. tions about what happened at trial," Mer to videotapefor trial transcripts. rittsaid. "Oral argument about the events TheNational Center forState Courts, after of the trial became, at times, an exercise When Ewing forgot to turn off the an exhaustive survey, concluded that in futility,"he said. videotapeduring anoonrecesssoon as the "video recording is a viable method of system was installedin 1985, the cameras court reporting that compares favorably "I think we jumped into this a little too whirred steadily as she ate lunch, then with traditional court reporting." soon," said Kentucky Court of Appeals automatically rewound and accidently Judge Charles B. Lester. "I think this can taped overthe morning’s record withnew be developed eventually." Right now, testimony in the afternoon. inad But as a steadily growing number of state Ewing’s and federal courtrooms are wired for however, he said, "It takes a lot more time vertent erasurerepresents only one of the to sit and watcha trial than toscana typed perils of video courtrooms, which have cameras, some appellate lawyers and judges question whether videotape is too transcript.... It has shifted costs up toour spread from Kentucky to 60 courtrooms level; we are paying lawyers to sit and in11 states inthe past 5 years. Judges have time-consuming and cumbersome to review. Andcourtreporters -fighting hard watch television. We just have to grind forgotten to turn on the cameras, tes through and waste an awful lot of time. timony has been inaudible, appeals have to save their jobs - aredemanding that the taken months toprepareas lawyers strug supposed advantages ofvideobeseriously gled with unfamiliar video records and examined. Further, Lester said in an interview, be court reporters have lost their government cause the voice-activated system focuses jobs, but the use of video transcripts is "If a court is having personnel problems, on the loudest noise, "Everytime a spec growing dramatically from Maryland to just bringingin a machine isnot a creative tator walks in, I get a beautiful segment of Hawaii. approach," said Marshall S. Jorpeland, doors. I could prepare quite a beautiful ad communications director of the National fordoors, every kindof door that exists in a trial courtroom." "I don’t feel as if any system is perfect," Shorthand Reporters Association. said Judge Laurence Higgins, who has "Video is just another tool, it looks great beenon the bench14 years, "butthis is the and sounds fantastic, but 50 years from Ewing, in accidentally erasingtestimony, greatest thing that has happened to rue as now reporters will still be needed and provided novel grounds for appeal. But a trial judgein my lifetime." courts will still have the human element the Kentucky Supreme Court refused to involved to make sure everything’s work grant a new trial, saying that a narrative ing." statement reconstructing the record from Kentucky, having worked outmany of the trial notes was sufficient to give the con bugs in its trailblazing system, preserves To be sure, there have victed man a "full and fair appellate the official record of 40% of all trials on been problems. review." videotape. It saves money,provides faster Curtis Clay, convictedof slaying his live- service and produces more accurate in girlfriend in Lexington, Ky., won the transcripts, according to Kentucky Chief right to a new trial in 1989 when court Kentuckyofficialssayupdatedequipment Justice RobertF. Stephens. Thenumberof room videotape ran out unnoticed while in the voice-activated system was video courts is growing as fast as Ken hewas being questionedby his lawyerand eliminated many of the mechanical and tucky finds $50,000 per courtroom to in- cross-examinedby prosecutors. Thejudge sound problems. Human error has been stall the equipment. ruled that a reconstruction of his tes minimized, they say, by new devices that timony did "not constitute a record of prevent erasures and alert the courtroom sufficient completenessforappellate con audience when the camerasare notoperat In Kentucky courts where it is used, sideration." ing by the installation of two lights on the videotape provides the only official front of the judge’s bench. Even so, the zecord when acaseis appealed, the appel Curtis Claycase still occurred. late lawyers hand the state Supreme Court U.S. 6th Circuit Court of Appeals Judge tape, not paper. Gilbert S. Merritt called his first ex periencehandling the appeal of a burglary "My feelings have changed over the

June 1990fThe Advocate 55 years," said Frank Heft, chief of the ap peals division of the Public Defender of fice inLouisville. "In the beginning, there ADS OF THE KENTUCKY SHORTHAND were a lot of technical problems. It was particularly difficult hearing bench con REPORTERS ASSOCIATION ferences. Most technical problems are now resolved.... The biggest problem is the timeinvolved in reviewingtranscripts. We’ve adjusted."

Three factors fuel the move to video - money, time and convenience. The Na tional Center for State Courts found that Kentucky which paid low court reporter salaries before the introduction of video, reduced court reporting costs by 15% in actual dollars over a 4-year period, not counting the fact that salaries would nor mally have increased with inflation over the period. The state has spent the savings on video equipment for new courtrooms and hiring law clerks to help the judges. I / ;f/t ‘ Other states, which have kept more detailedcost records, sayvideo recording You may have hazd that video in the And an attorney who said I, cowl: costs are "roughly one-half as much as courts is traditional reporting," according to the 1 eperti 132 hours in front of the You should know that many see video terminal watching the triaL. National Center for State Courts. video as extremely unsppesfln. the real diffIculty a vying to access the video record. Such as on. appeitat.ft,dy. iwof.: Are Court reporters sayboth costs and delays record a replete with difficul you willing to ties. not in. leastof which bein9 its take a spin on the have merely been shifted around among preuntation as a videotape.., we the parties involved in litigatioru "Court wish to ciii attention to the acute "Wheel of Appeal"? reporters are much less expensive" than difficulties video preaents The choice is yours. video, said Laura Kogut, immediate past president *f the Kentucky Shorthand Reporters Association. If a case is ap pealed, "you’re paying attorneys $150 hour to watch TV." GONE VIDEO Many Kentucky trial courts have "gone video." Court Reporterssay that instead ofhaving Thafa bad news forthose whobellowi Inthe benefits of cowtroom cotnputertzadon. to wait for transcripts to be prepared, A recent studynoted that a protiferallon of delays have been shifted to the appeals cumputetized courts we result to faster process as attorneys take longer to study ina fewer etoa er video records to preparetheir briefs. "At appeals end reduced courtcoats. torneys have been cited by the statej On the other hand. Kentucky Supreme Court fornotgetting their briefs appeSale dges we anon see in in a timely matter," said Ted Hock their effIciency d.diine they review more and more ersmith, a Louisville court reporter. videos on appeal evert,y to witch a lv’,. week atal on videotape?. Higgins said Kentucky became a trailblazer in courtroom video because How we video altein you, the attorney? Are "necessity is the mother of invention." you ready to give up Higgins said he volunteered to have caniputettzed atigation cameras installed in his courtroom and support. matint access tetranacripti and SItter turnedthem on one morning after he had benefits of compctsflza. delayed a trial for 3 days because of the don? Would you rsthlr well, absence of a court reporter. It was notthe out of moat with a bawh of 90 minute tapes instead of first time video recording had beentried - a transcrIpt era Sappy it had beenstarted and abandoned inOhio dIsk? and Tennessee-but new, unobtrusive,in expensive equipment that could be Can you afford operated by a judge made it a more attrac to go video? tive proposition. "It wasn’t done out of ‘The choke Is yours. spiteor meanness," he said. This message sponsored by The Copyright The Washington Post, March Kentucky 22,1990. Reprinted withPermission. Shorthand Reporters Association

June 1990fThe Advocate 56 II ASK CORRECTIONS

Shirley Sharp TO: CORRECTIONS torney on that jurisdiction’s behalf ex plain what his rights are, and advise him My client is presently incarcerated, and I that he cannot be tried on charges while FUND RESOURCE am sure that an out of state detainer will there,andassurehimthatheistobetaken AVAILABLE be lodged against him. How will my for testimony only. The court then enters client know that he has the rightto petition an Order ofSummons basedon the infor the courts for a dismissalor trial per the mation. terms of the Inter-State Agreement on Detainers Act? TO: CORRECTIONS TO: READER My client is 62 years old. Is there a Geriatric Unit among the Corrections When the detainer is received from the Cabinet Institutions, and if there is, how A compendium of authorities supporting out-of-state jurisdiction, your client will canmy client be placed in that Unit? an indigent defendant’s right to funds for be given a copy of the detainer and at that experts, counsel, transcripts and witnesses time will also be given a Form I advising TO: READER is available for $10.00. Send a check pay him/her of his right to petition the courts able to the KY State Treasurer to: for an attorney and advises the client who There is a Geriatrics Unitwhich is located tocontact to file the forms. a Kentucky State Reformatory, La Grange, Kentucky. A client cannot be TO: CORRECTIONS placed in this unit just becauseof age, but Ed Monahan because of medical need. If a client is in DPA My client is presently incarcerated and is jail and has medical needs, he may be 1264 Louisville Road wanted as an out-of-state witness. What admitted to the Geriatric Unit, but the Frankfort, KY 40601 provisions are made for an inmate to tea waiting list for this unit is basedon medi 502 564-8006 tify as a witness out-of-state and is my cal priority need. client protected from being prosecuted on a charge while there?

TO: READER DO YOU NEED AN INDEPENDENT When a person who is incarceratedis sub FINGERPRINT ANALYST? poenaedasawitnessforatrialinan CONTACT: out-of-state jurisdiction, it is required that the Judge of the Court of the out-of-state jurisdictionfile a certificatein the District LATENT PRINT ANALYSTS Court the institution where the inmate is Q cJrucx7, f. incarcerated - county location. The cer !JU. Tejteil an Certfid tificate advises that the Prosecutor has informed the courts that there is reasonable cause to believe that this in mate has information that is material and relevant to the action and that his atten dance is needed, and that it would not JESSE C, SKEES cause undue hardship to appear and tes SARA E. SKEES tify. They also promise to board, lodge, Lane and retain inmate intheir custody, bear all 3293 Luco.s costs and promptly returnhim to our cus ‘Traztkfort, Ccntucy 40601 tody when the trial is completed or his co2 695’.4678 testimony has been completed. This process is coordinated throughthe County Attorney and the District Court Judge. The inmate has a hearing, where hisrights are explained, and a representative of the Professionals Serving Professionals to the Minute Detail out-of-statejurisdiction or the County At-

June 1990/The Advocate 57 BOOK REVIEW Treatment ofPsychiatric Disorders American Press, Inc. May, 1989 $250.00 800 368-5777

According to one count, some 450 boundaries of psychotherapeutic treat varietiesofpsychotherapy are being prac ment; opponents fear that the proponents ticed in the United States today.With that will be proved correct. many approaches available to attempt to cure the 200 or so recognized psychiatric Treatments of Psychiatric Disorders disorders, it is notsurprising that mental- American Psychiatric Press, $250 has health-care professionals have been hard come to symbolize a major debate in that and everything pressed to decide which therapies are ef psychiatry which boils down to this: Is psychiatry is anything treating which illnesses. The goes.Most psychiatrists are ethical and do fective in psychiatry mostly a science or mostly an choice of treatment is entirely up to the art? Supporters of the book come down on notpractice that way,but thereare a num practitioner, "The patient is at the mar ber of mental-health-care professionals, the side of science, saying that enough is especiallythose whoarenotpsychiatrists, of whoever’s office he walks into," known about the workings of the human Byram Karasu, a professor of psychiatry mind to developguidelines fixing it when who through either ignorance or ar at Albert Einstein College of Medicine, it does notworL Opponents take the side rogance treat patients with ineffective told me during an interview. of art, claiming that knowledge about forms of psychotherapy. That is what I human thought and behavior is too hope toputanendto withthisbook" In all of medicine, psychiatry is the only sketchy to begin restricting the methods specialty in which there are no generally used to manipulate psychological proces Basically, that was the argument made by acceptedtreatment guidelines. To remedy ses. Watching the debate withinterest are those in favor ofpublishing the work asan this situation- to bring some order to the patients, insurance companies, and mal official APA manual, a document that, fieldof mental-healthcare- the American practice lawyers, whomerely by showing together with the Diagnostic and Statisti Psychiatric Association [APA] several an interest in the proceedings have subtly cal Manual of Mental Disorders, Third years ago began an ambitious review of influenced the direction they have taken. Edition, Revised, was meant to be the the scientific literature with the object of APA’s official word on the diagnosis and producing a comprehensive overview of The quest for a psychiatric treatment treatmentofpsychiatricdisorders. Advan psychiatric treatments; the document has manual began in 1982, when Daniel X. ces inneurochemistry and pharmacology, finally been completed and will be pub they say, are now driving the study of month. Somewhere along the Freedman, whois currently a professor of human behavior, and it is time for the lished this psychiatry at the University of California way, however, many APA members at Los Angeles, and who was the APA’s profession to wake up to this fact. began to entertainserious doubts about the president at the time, setup the Task Force Psychotherapies will always play anile in project. They worried that this reference on Treatment of Psychiatric Disorders. the treatmentofmental disorders-but only work would restrict their professional Freedman was motivated largely by con those psychotherapies that canpass clini freedom and expose them to malpractice cern that there was no clear, cohesive cal trials. Just as a physician cannotuse a claims for treatments the volume didnot description of prevailing treatments, and new drug or surgical techniquewithout its condone. Psychiatric groups in theUnited that such areview was needed bothtohelp first being proved effective so should States and Canadavoted to urge the APA psychiatrists assess their practices and to mental-health care be limited to those not to endorse the book, and a petition suggest directions forfuture research. In psychotherapies that havebeenproved ef drive was launched among the APA mem addition, officials of the federal govern fective. This approach, proponents of a bership to force the association to sup ment’s Medicareprogram and administra manual say, will notlimit the ethical treat press it altogether. In the end the APA tors of private insurance companies had ment of patients, nor will it restrict the sought a compromise. The work, which beenperiodically asking the APA for a list development of new techniques, which runs to 3,000 pages, in 4 volumes, has of treatment guidelines so that they, in can still be tested experimentally, muchas turned out to be not so much a treatment turn, could developmore-restrictivereim new drugs are. manual as a lengthy discourse on treat bursement procedures. Freedman picked ment issues: a critical survey of the litera Byram Karasu to head the project, and Karasu is an articulate and persuasive ture. And, despite the original intention, Karasu persuaded some 400 of his col spokesman. He never seems to get angry the report is no longer considered to be an leagues to help write, rewrite, and review with the project’sdetractors, and he says official APA document. Rather, it is an the referencework’s dozens of chapters. he understands their concerns. But he "approved" APA task-force report, and blames ignorance for those concerns. The APA members are in principle free to take book is far from being the therapeutic its recommendations or leave them. "It’s time to get the quacks out of cookbook that many imagine to be, he Proponents of the work believe that even psychotherapy, to bring psychiatry up to says. It never once gives a hard and fast withoutthe APA’s impriniatur, it will sub date with the rest of medicine," Karasu therapeutic rule like "For condition A, stantially help to define the accepted says. "Right now the public’s view of treat with therapy X, Y, or 74 all other

June l99OITheAdvocate58 p therapies are wrong." Rather, the book know that a certain treatment might prove own unique problem." According to this raises diagnostic issues relating to condi especially promising- or that some other view, behavioral problems are so much tion A, reviews the various therapies that treatment was distinctly beyond the pale. more variable than other medical iave been tried and the results obtained, Karasu acknowledges that, in part for this maladies that the psychiatrist requires presentspertinent details from unusual in reason, Treatments of Psychiatric Disor much more latitude thanother physicians. dividual cases, and only then discusses ders will probably bring an increase in The book’s opponents argue, along which treatments canbe considered effec malpractice suits against psychiatrists. similar lines, that the interaction between tive, under what circumstances. These are But he does not think this is necessarily doctor and patient is an essential part of presented as preferred treatments, alterna bad. "Why should we be interested in psychiatric treatment. Maladapted be tives, adjuncts, and second-order treat protecting someone who is incompetent havior may be caused by faulty brain ments; taken into consideration are the from malpractice suits?" he asks. "Our chemistry, but treatment guidelines will needs of patients in different age groups professional behavior will come under never be able to account for patient- and phases of personality development, tougher scrutiny, but I don’t believe that physician chemistry. and of those with more than one competent, ethical practitionershave any psychiatric disorder. The book also in thing to worry about." The original objections tothe project had cludes a thorough discussion of what is as much to do with its official nature as not known about various conditions and Overall, Karasu is proud of the book He with its content. So why are Gers and what questions need to be addressed to feels that it is a big step in a continuing many of his colleagues still upset about resolve the uncertainties that do exist. process of improving psychiatric the book? "Even though it no longer will medicine. "I hope that in 5 years this book say ‘official policy of the APA’ on it, this "We haven’t tried to write the definitive willbeoutdatedandtheAPAwillhaveto book will still be ripe for misuse," Gers text on psychotherapythat sets forth rigid prepare a second edition,"he says, "and 5 says."Allthe disclaimersinthe worldwill rules and regulations, but rather, we’ve years after that a third, and soon." not prevent the book from being used in tried to establish principles of treatment ways for which it is not intended, and that can serve as guidelines,"Karasu says. anyone who thinks otherwise is foolish. "This book isn’t going to strengthen psychiatrists? "Thisis a professional document designed psychiatry, it’s going to weaken it severe Aren’t they practicing to suggest useful treatment approaches ly," says Seymour Gers, the director of Haven’t they found outby now that telling for clinicians. In fact, it is designed to medical education at the Manhattan a personnot to do something doesn’t al demonstrate the complexity of the treat Psychiatric Center and the principal ways get him to stop?" ment-planning process and its application, spokesman forthe anti-manualcontingent and the needforthe individualpsychiatrist ‘Whether Gers to considerseveral approacheswhentreat within the APA. or not it is Chief among those who fears may ing a patient. I don’t see how people will called a manual, or whether or not it has pervert the good intentions of Treatments think this bookis unreasonably restrictive, the APA imprimatur, thisbook is going to of Psychiatric Disorders are malpractice unless they practicefar beyond the bounds stifle psychiatric treatment. It is going to lawyers and litigious patients, who, as he what decrease the quality of patient care. And puts it, "will nowhave ammunition inthe of is reasonable." it is going to spur an increasein malprac form of authoritative, documentedcheck tice suits against both good and bad list standards against which psychiatrists’ Proponents of the book also argue that its psychiatrists." treatmentswill be measured byjudgesand format willmake it an importantreference juries." work formental-health-carepractitioners, Those who oppose Treatments of particularly those who are in practice by themselves. Robert Cancro, the chairman PsychiatricDisorders argue that although And what about insurance companies? of the department of psychiatry at New psychiatry has made considerable Imagine a claims adjuster who reads in progress in recent decades, its prac Treatments Psychiatric Disorders York University Medical Center and the of that author of the book’s section on schizo titioners remain far short of consensus on treatment X should alleviate condition A phrenia, says that he tried to write some what constitutes proper treatment and in6 to 8 months. Eight months have come thing that would be useful to a student or what does not. "Very simply, we do not and gone for a particular patient and he is to a practitioner who does not have the know enough rightnow. We do nothave still not "cured." Should the insurance advantage of being on the faculty of a enough of the answers," Gers says. Many company continue paying for treatment? major medical school. "Those of us in of the book’s opponents feel that treat Such scenarios scare Gers and many other academia forget what like to be a ment guidelines, no matter how broad, APA members. "Insurance companies it’s will retard or suppress the development of and malpractice lawyers should not con psychiatrist in some small community innovative therapies. James B. Wirth, the trol the treatmentpatients receive, yet that where it may be harder to keep up on the clinical director inpatient psychiatric latest indrug therapy, or where you can’t of is exactly what is going to happen," refer a patient to a colleague when you services at Johns Hopkins Hospital, in aren’t too familiar with that patient’s Baltimore, says, ‘We needthe freedom to Psychiatrist worry also that the reference problem," he explains. The pro-manual try new things." Wirth and others make book will take away their business. factionbelievesthat the therapy guide will the point that psychiatrists are treating Psychologists and other providers of men improve the education of new individuals, notgroups of individuals like tal-health care will undoubtedly buy the psychiatrists. Among other things, it those on which clinical studies arebased. report and will be able to use the informa provides "Research looks at populations ofpeople, multiple perspectives on thus can only draw general con tion in it to bypass psychiatrist altogether, psychotherapy, notthe singleperspective, and particularly when drug therapy is war reflecting an author’s particular school of clusions," Wirth says. "We should take ranted. A psychiatric nurse, for example, thought, that pervades most texthooks. into account what population studies tell could ask any doctorto prescribe arecom us about pppropriate treatment fora given mended drug. However, non-psychi psychiatric problem. Still, we should not atrists, too, worrythat the manual will take With a compendium of state-of-the-art be restricted by those population studies away their business: they object that it is knowledge now available, practitioners in using our clinical judgment to decide too drug-oriented and thus discriminates will no longer be able to say they didnot how to treat an individual patient withhis against them.

June I99OITheAdvocate59 But above all, Gers believes, the book represents an unfortunate trend inniental health care. "By setting forth these kinds THE MENTALLY ILL AND THE STEREOTYPE of guidelines, I think we’redebun’niring DANGEROUSNESS psychiatry," he says. "Contrary to what OF the APA thinks, I don’t think this is a step The mentally ill arenotone of the most dangerous groups in our society. Some predictably and in the right direction, at least notwith our demonstrably dangers persons are not preventivelydetained or handled with concern forpublic current understanding of psychiatric dis safety. For example, about 50% of all fatal auto accidents involve drunken drivers. Our society orders. Psychiatry is still an art it still demonstrates a truly astonishing tolerance for this group of dangerous persons. takes a great deal of interaction between patient and physician. This book de-em A person who is found to be mentally ill and dangerous can be involuntarily committed to a phasizes that interaction, and therefore I mental institution. Saleem Shah, apsychologistspecializing in studies ofcrime anddelinquency at the National Institute of Mental Health, has pointed outserious issuesin preventive detention see it as something bad for the profession and the prediction of dangerousness. and bad for patients." Typically,an individual cannot be involuntarilyconfinedto amentalinstitution simply because The one thing that is unarguable is that the of anticipated- or even demonstrated- dangerousness. First, therehas to be afindingof mental American PsychiatricPress, Inc.,a wholly illness and then of an associated propensity or predicted likelihood for engaging in dangerous owned subsidiary of the APA, will make behavior. of Psychiatric Disorders Treatments Since involuntary civil commitment represents an exercise of State power that may deprive available in time for the APA’s annual individuals of their liberty and also compel them to undergo psychia-tric treatment, itraises a meeting, this month, ensuring brisk sales. fundamental questiorn What potential harms to society or to the individual are sufficiently Should the APA be proud of itself? The serious tojustify resorting to coerciveconfinement? book is almost certainly 25 years ahead of its time. Sciencehas answeredmanyques The question involves public policy, sociopolitical and legal issues, not medical, psychiatric, tions abouttheroots ofhumanthought and psychological, or mental health issues. In the existing situation, however, public policy and behavior; the pace at which further ques legal issues are confounded with psychiatric and mental health concerns. tions are being answered is breathtaking. But the quantity of what we do not know Itisdifficult to discern how the link between mental illness and dangerousness behavior came is more breathtaking stilL It will be about and why it continues to be maintained with such enduring zeaL Several studies have decades, at least, before doctors canmin examinedthe arrest records of patients discharged from mental hospitals. These studies do not isterto themind as precisely as they now support the stereotype of the mentally Ill as highly dangerous and unpredictable. Although persons diagnosed as seriously mentally ill those likely to be hospitalized are not any less can to the rest of the body. dangerous than persons notso diagnosed, the evidence also points to the conclusion that the mentally ill do not constitute one of the most dangerous groups in our society. And yet scientists are always publishing interimreports on the current state of the It should be noted that some of themost predictablyand demonstrably dangerous persons are art; they reallyhavenochoice. If chemists not preventively detained or handled with greater concern for public safety. For example, had to understand every last detail about numerous studies have shown that about 50% of all fatal autoaccidents involve drunken drivers. atoms in absolute certainty before Our society demonstrates a truly astonishing tolerance for this group of dangerous persons. publishing results, there would be no Given the numerous court proceedings in which the dangerousness of a mentally ill person is chemical literature and little if any atissue and grave decisions affecting life andliberty must be made, one mightassume that some progress in chemistry. Similarly, if reasonable accurate means of predicting dangerous behaviorare available. This assumption is physicians had to understand perfectly the false. No instrumenthas been developed that canpredict violent andother dangerous behavior connections between behavior and heart accuratelyor satisfactorily. In fact, no test has beendeveloped that can adequately identify such disease before writing about them, then behaviorretrospectively- let alone predictit - there would beno literatureonthe hazards of smoking or overeating. The drawback, of course, is error, but error can be cor rected-indeed, errors are being corrected BELENWILLLMS all the time in science texts. Director of VolunteerServices Mental Health Association of Northern Kentucky 605 Madison Avenue In all likelihood, the new volume of treat CovingtonKY 41011 ment guidelines will not be the evil that 606431-1077 many fear, nor will i rid mental-health care of all the quacks and bad prac Helen Williams has been the Director ofVolunteer Servicesfor 31/2yeors. Prior to that she titioners. Its greatest effect will be to workedfor2yearswithParentsAnonymouswizhparentsthat abused childrenorwere mentally stimulate discussion about the treatment ilL Sheattendeda3 month training by theMental HealthAssociation inCincinnati inall mental of humanbebavioral problems.In the long health issues. She is a 1964 graduate ofthe Art Academy ofCincinnati with a Bachelors In run, whether that treatment is an art, a Fine Ait. Shetaught 2 yearsfor the severely-behavedhandicap. science, or a bit of both, discussion is The Mental Health Association of Northern Kentuckyprovides advocacy and outreach to a 3 bound to improve patient care. county area-Boone, Kenton and Campbell. Among their programs are: selfesteem workshops with elementary school children, nursing home residents; ajail "listening-ministry;" a support group called "Just Friends" for persons with long-term mental illness; a Christmas day dinner JOSEPH ALPER The Atlantic P.O. Box for the homeless, mentally ill or lonely health fair guide bock for mental health servicer, a 52661, Bowder, Colorado 80322-266 1- teen crisis telephonenumber card; a newsletter that focuses on housing and legislation; daily 800-525-0643 May, 1989, Reprinted with referrals to agencies and doctors. All of these services are provided on a volunteer basis. Permission. Editor’s Note: A review by Training of the volunteers is a large part of the organirafion’s time and efforts. Two Advocates William D. Weitzel, MD. of the Treat are employed on apart-time basis to assess the needsof mentally ill individuals. merttofPsychiatricDisorders appeared in the April 1990 Advocate at pp. 62-63. Reprinted by permission.

June 1990/The Advocate 60 I. BOOK REVIEW Kentucky Practice, Volume 101990 Substantive Criminal Law $85.00 West Publishing Company P.O. Box 64526 St.. Paul,Mlnn. 55164

We’ve Shrunk the Constitution This work on substantive criminal law is the best available not becauseit is theonly current Criminaldefense workis probablythe world’s work in this areaof this breadthbut because it only recession proof growth industry. provides us with well organized, up-to-date, thorough resources which we can apply in a practical our court battles. Eachyear, every month, anditseenueveryday, most way to the job of the aiminal defense attorney be comes snore demanding and difficult as the The work’s 29 chapters include nicely done public urges more punitivecriminal sanctions. chapters on each Kentucky criminal offense Many politicians vote without hesitation for within and without the KentuckyPenal Code greater criminal liability and harsher terms of from the run of the mill theft, DUL burglary, ixnprisoniucnt. robbery crimes through the more exotic tax, commerce, agriculture, elections,environmen On top of this pile of revenge, the decade of talandlaborandhumanrightscrimes.Thelater ultra conservative politics continues its in crimes arenot discussed much anywhereelse. fluence in many state and federal courts, as constitutional protections are interpreted into We are also blessed with chapters on defenses, oblivion. drug offenses with a very practical drug chart onpp.587-89originaliydevelopedbyDPAand The movie, Honey,! Shrwdc the Kids, has be distributed via The Advocate, constitutional come in real life Citizens, We’ve Shrunk the aspects of offenses burden of proof, vague Constitution! ness, equal protection, etc., and an analysis of thelaw of mental states. Volume 1O Kentucky Practice: FlUng the Constitutional Guarantee Void CONCLUSION As constitutional protections evaporate under If we’re truly interested in restoring the con the hotair of the courts, defense advocates are stitutional guarantee void and if we’re really A 127 page handout on the recusal of more and more compelled to arm themselves intetested in prevailing on behalfof our fellow judges is available for the cost of $20.00. with other sorts of weapons. Kentucky Prac citizens accused of crime, we cannot afford to Sendacheckpayable to theKentucky State tice,SubstantiveCriininalLaw, VoL 101990 be withoutVolume 10 ofthe KentuckyPractice Treasurer to: by Leslie W. Abraroson, U of L Professor of Series, a brand new legal assault weapon not Law is one more forour arsenal. imported. RECUSAL HANDOUT ED MONABAN DPA Director of Training 1264 Louisville Road Frankfort, KY 40601

CITIZENS, I SHRUNK THE CONSTITUTION

June 1990/The Advocate61 I- BOOK REVIEW LEGAL NEGOTIATION: THEORY AND APPLICATIONS Donald G. GWord West Publishing Co. 1989,225 pp. $14.95 softbound

In this concise, well-written, and amply annotatedbook, Dean Donald G. Gifford of West Virginia University College of Law has created, in his own words, "a comprehensive overview oflegal negotia tion forlaw students and lawyers studying their negotiating behavior." Recogniring that different approaches are required for different negotiation situations, Legal Negotiation: Theory and Applications analyzes bothcompetitive and collabora tive approaches to negotiation and a variety of negotiating strategies and tac tics.

Dean Giffordsees the negotiation process as consisting of six phases: negotiation planning, initial orientation, initial proposals, information bargaining, nar Available from West Publishing Co., 50 W. Kellogg Blvd., P.O. Box 64526, St. Paul, rowing of differences, and closure, He shows how competitive, cooperative, or MN 55164-0526. problem-solving approaches might be used in each of these phases, and often self. extensive use of footnotes, the text per illustrates how a specific tactic might be mits thereader togo to the originalsources used in a given situation by providing desired. readers with a sample dialogue between One of the outstanding features of Legal iffurther explanation is the negotiators. Negotiation: Theory and Applications is that it succinctly describes the research Ihave a1ready adopted this book for use and theories of a variety of experts on in my law school course on interviewing, Dean Gifford makes very specific, useful negotiation, including the psychological counseling and negotiations. I am certain suggestions with regard to each phase of, and ethical factors involved. Dean Off- that it would make equally valuable read and approach to, negotiations. For ex ford has done an outstanding job of ing for any practitioner, new or ex ample, iii discussing competitive tactics, presenting, in an easilyunderstood man perienced, who is looking for expert he deals with such important considera ner, the often divergent views of other guidance on the negotiation process. tions as agenda control, the selection of authors regarding approaches to negotia and physical arrangements at the negotia tion. As he states, "Claims that any par tion site, the timing of negotiations, the strategy superior NORBERT S. JACKER numberofnegotiators, the presence of the ticular negotiation is to and bargaining with credentials. the others all of the time, or even most of client, the time, promise toomuch. It isthe thesis Norbert S. Jacker is Professor of Law at Dc- of this book that the answer to which Paul University College ofLaw in Chicago. The book strongly emphasizes the impor negotiation tactic is most effective is: it where he teachers Interviewing,Counseling & Negotiations. a.r well asProfessional Respon tance of determining the client’s interests depends." Given this practical, even sibility. Author of Effective Negotiation Tech and working with the client during the handedapproach, if a lawyer seeking use niques for Laryers NJTA 1983 and a well- negotiation planning phase, a crucial part ful information to improve his or her known lecturer in negotiation skills, he ha, of the process which all too often receives negotiation skills were limited to a single presented seminars and workshops on legal scant attention. In choosing this emphasis, text on the subject of negotiation, this negotiation to law firms. corporate legal Dean Giffordpresents useful information would be the book to choose. departments, and barassociations throughout on client counseling conferencesprior to, the UnitedStates andCanada as well as during and after, the negotia very tion. The book also briefly discusses the The strength of the book is that in a Copyright 1989 by the AmericanLaw In alternative dispute resolution movement, few pages it imparts a wealth of useful stitute. Reprinted with the permission of information, provides new ideas for law the American Law Institute-American mediation, and other dispute resolution students, and affords an organized ap processes, but its principal concern Bar Association Committee on Continu remains with the negotiation process it- proach to re-examining the negotiation ing Professional Education. process for lawyers. Moreover, with its

June 1990tfhe Advocate 62 ______

THE 7TH DPA TRIAL PRACTICE INSTITUTE for Criminal Defense Attorneys

October 28-November2, 1990 Kentucky Leadership Center Faubush, Kentucky 1/2 hour westof Somerset

Featured Presenters andCritiguers DERYL DANTZLER, Dean, National Criminal Defense College JOSEPH V. GUASTAFERRO, Chicago Trial Consultant Director, Actor LINDA HOTES, Deputy Public Defender in Denver, Colorado, Director of Training KIM A. TAYLOR, Director, Washington D.C. Public Defenders MARTIN S. PINALES, Cincinnati Criminal DefenseAttorney LINDA MILLER, Colorado Criminal DefenseAttorney PHYLLIS SUBIN, rL Philadelphia Public Defender, Director of Training JAMES CLARK, M.S.W., Clinical Social Worker p’c ERNIE LEWIS, Director, DPA Trial Office VINCE APRILE, DPA General Counsel Criminal Learning DefenseAdvocacy Undera learning by doing format, the Institute covers: 1 client interviewing; 2 preparation and theory of the case; 3 voir dire; 4 opening argument 5 trial communication and persuasion; 6 meeting and making trial objections; 1 direct examination; 8 cross-examination; and 9 closing argument. The small group sessions involve activeparticipation on each trial skill withindividual feedback from the faculty. Small groups are by experience level, ranging from those who have never tried a case to those who have had many trials.

For more information, contact Ed Monahan 1264 Louisville Road Frankfort, Kentucky 40601 502 564-8006

There will be 35 hours of Kentucky CLE credit, including 4 hours of Ky. Legal Ethics credits. Open Only to Criminal Defense Advocates. Limited Space, apply early.

June 1990/The Advocate 63 STEELE Continued from Page 3 In arecentpublic defender sexualabuse case, I FUTURE SEMINARS was unable to obtain a psychologist locally to Funding of defense services is critical. I don’t administer testing to my client because the know why a criminal defense attorney should psychologistwas afraidhemighthavetotesti be asked to donatehis services when neithertini for somebody accused of some form of sexuk Mark Your Calendars! judge nor the prosecutoris taking a pay cut to perversion. He was worried about his image 1990 tryto the case. The word "professionalism" or and the effect his identification with the client rather, the lack of it is applied to criminal might haveon his own business. Weultiniately ALTERNATIVE SENTENCING defense attorneys by courts and membersof the had to rely on a court appointed expert which CONFERENCE FOR DPA ,JIJDGFS, government when they want alawyer to work is generally unsatisfactory. PROSECUTORS AND PROBATION for nothing. Their own sense of profes &PAROLE sionalism hasn’t kept them from pay ruises and Defense expertsmake adifference. Recentlyin August 19-21,1990 increased funding which has monumentally Center a highly publicized murder case in Northern KentuckyLeadership outstripped thepublicdefender system sinceits Kentucky, an accused who could afford to ob Faubush, KY inception. tain expert witnesses was able to successfully 502 564-8006 mount his defense. EXPERTS DPA TRIAL PRACTICE INSTITUTE October28-Nov. 2,1990 Science has grown and so has the law in It bothers me when psychologists and KYLeadership Center psychiatrists want to withhold the "grace" of response to it. What used to be an indictment their services from somebody that they ap Faubush, KY on Monday and arraignment on Wednesday 502 564-8006 parently believeis undeserving of their help. anda trial 2 weeks from that date is a thing of wayl at Moreinformationonpage63 ofthis issue thepast Undercurrentstatutes, laws, and con The look it, the accused has only been stitutional laws, that procedure would not be charged, he has notbeen convictedyet. 4TH KACDLANNUALSEMINAR countenanced as dueprocess. Featuring Charles Brega of Denver DEFENSE-PRONENESS December 7 & 8,1990 Louisville, KY The Commonwealth can call up the Forensic A lawyer’s personal beliefs don’t necessarily 502244-3770 Pathologist and discuss matters any time he or preventhim or her frombeing a zealous advo she wants- no charge, no problem. That same I’ve heard lawyersspeak at seminars pathologist perceives himself as a witness/ad cate. and VORP GATHERiNG; ANNUALCON vocate for the prosecution and typically say alawyer has tobe bephilosophical attuned- FERENCE OF THE U.S. ASSOC. FOR in ziis rm speaking about capital declines to accordthesame courtesy to defense punishment, in order to represent aclient well. VICTIM-O’ENDER MEDIATION attorneys. Prosecutorshave accessthrough the June 28-30,1990 I disagree. I’ve seen the old "lions" of the Attorney General’s office to special funds for criminal defense bar who were pro-capital Louisville, KY experts, as well as access to the F.B.L lab, 219 293-3090 punishment leave no stone unturned and fight which at government expense, not only tests, hard when a client’s life was at risk, eves but provides expert testimony at triaL The lab though it differed from their personal beliefs. also prepares exhibits for triaL The defense is believe 1991 usually unableto obtain its own expert, even if They in the death penalty- butnot solelyfor consultation. their clients. 19th ANNUAL PUBLIC DEFENDER CONFERENCE David is marned to Molly and has two sons, June2-4, 1991 "IfI want a pathologist, I have to Aaron, age 14 and Adam, ageS. Quality InnRiverview go through the whole routine. The Covington, Ky Commonwealth doesn’t." 502564-8806 CRIS BROWN

DEPARTMENT OF PUBLIC ADVOCACY BULK RATE 1264 Louisville Road U.S. POSTAGE PAID Frankfort, KY 40601 FRANKFORT, KY 40601 PERMIT #1

AddressCorrection Requested