E ADVOCAT
Vol. 10 No. 5 A DPA Bi-Monthly Publication August,1988 Death penalty claims 100th person
EDWARD BYRNE, 28 on June 14 be camethe 100th personto be executed In the United States since the Supreme Court reinstated the death penalty in 1976. lIe waselecteocuted in Louisiana. ARTHUR BISHOP, 36, a former Mor mon missionary, was executed by lethal Injection June10 inUtah. Previously put to death: Questions About The Executions on Page 4
1986* Earl Clanton Jr., VA 4/14; Leslie Lowenfield, LA, 4113; Willie Jasper Darden, IL, 3/15; Wayne Felde, LA, 3/15; Robert Streetman, DC, 117. i81 Timothy McCorquodale, GA, 21; Jo ephSt aggi DC, 9t’10, William Mitchell, GA, 911; Wayne Ritter,A18/28; Lee Jones Jr., AL, 3/21; Charles Bass, thur Frederick Goode, FL, 4/5; Ronald Beauford White, FL, 8,’28; Pierre Dale DC, 3/12; James TerryRoach, Salby,UT, 8,28; SC, 1110. Clarke O’Bryan, DC, 3/31; James Hutch Sterling Rault, LA, 8/24; ins, NC, 3/16; James D. Autry, TX, 3/14; John Brcgdon, LA, 7/30; Willie Watson, 1985* Carroll Edward Cole, NV, 12/6; John Taylor, LA, 2P29’, Anthony Antone, LA, 7/24; Willie Celestine, LA, 7/20; Con. William Vandiver, IN, 1Y16; Charles l 1/26 the Ray Evans, MS, 7/8; JohnThompson, Rumbaugh, DC, 9/11; Henry Martinez DC, 7/8; Richard Whitley,VA, 7/7; EllIott Porter, DC, 7/8; Morris Johnson, Mason, VA, 6/25; 1983: John Eldon Smith, GA, 12/15; DC, 6/24; Jimmy Wingo LA, Charles Milton, DC, 6/25; Marvin Fran Robert Wayne Williams, LA, 12/14; 6116; Jimmy Glass, LA, 6/12; Alvin cois, FL, 529 Moore, Jesse de Ia Rosa, TX, 5/15; Robert Sullivan, FL, 11130; Jimmy Lee LA, & Benjamin Berry, LA, 6/?; James Briley, VA, 4/18; John Young, GA, Gray, MS, 9/2; JohnEvans, AL, 4/22. William Boyd Tucker, GA, 5/2 Anthony 3/20; Stephen Peter Morin, DC, 3/13; Williams, TX, 28; Richard Tucker, GA, John Paul Witt, FL, 3/6; Van Roosevelt 1982 CharlesBrooks, DC, 12/7; Frank 5/22; Earl Johnaon, MS. 5/20; Joseph Solomon, GA, 2/20; James Raulerson, Coppola,VA, 8/10. Mulligan, GA, 5/15; Eliseo Moreno, TX, FL, 1/30; Doyle Skillern, DC, 1/16; Joseph 3/4; Ramon Hernandez, DC, 1/30. Carl Shaw, SC, 1111; RooseveltGreen, GA, 1981: Steven Judy, IN, 3/9. 119 David Done Martin, LA, 1/4. 1986* Richard Andrade, I’X, 12/18; 1979: Jesse Bishop, NV, 1Y22; John Michael Wayne Evans, DC, 12/4; John 1984: RObert Lee Willie, LA, 12/28; Spenkelink, FL, 5/25. William Rock, NC, 91W, Chester Lee Alpha Otis Stephens, GA, Wicker, TX, 12’12 Timothy 8/26; Larry Smith, DC, 8/22; Palnies, FL, 11/8; Velma Barfield, NC, 1977: GaryGilmore, UT, 1/17. Randy Lynn Wool., DC, 8/20; Michael 11/2; Ernest Knighton, LA, 10/30; Marnell Smith, VA, 7/31; Jerome Bow- Thomas Barefoot, DC, 1Q/30; Linwood den, GA, 6/24; Kenneth Brock, DC, 6/19; Briley,VA, 1W12;James3enry,FL,9/2O; We ask prayers for the victims of Rudy Ramos Esquivel, TX, 6/9 Ronald J. Timothy Baldwin, LA, 9/10; Ernest Dob crimes committed by those listed Straight, FL, 5/20; Jay Kelly Pinkerton, bert Jr., FL, 9/7; David Washington, FL, here,/br those executed andforthose DC, 5/15; David Livingston Funchess, 7/13; lyon Stanley, GA, 7/12; Carl Elson participating in executions done in FL, 4/22; Jsffeiy Allen Barney, DC, 4/16; Shriner, FL, 6/20; James Adams, FL, our names. Daniel Morris Thomas, FL, 4/15; Arthur 5/10; Elmo Patrick Sonnier, LA, 5/5; Ar- Preservation President of the District Court
Judge’s Association - Julia Adams Changing Faces, Common Walls: Kentucky’s Prisons 202B Case Investigation The Advocate Features
Kevin McNally is a product of a Buchanan v. Kentucky, 107 S.Ct. Kevin Is leaving DPA to continue family of 10 out of Hol lis, Queens, 2906 1987. Carter brought the his work in other forums. New York City. He Is a 1971 politi Kentucky criminal Justice system cal science graduate of the Bronx’ out of the dark ages by requiring Upon hearing of Kevin’s departure, Manhattan College. that jurors be Informed In the Tony Amsterdam of New York Univer instructions that citizens accused sity Law School, expressed the His 39 years encompass much. Dur of crimes who chose not to testify views of many of us: "For sore ing Law School at U of L, he worked cannot have any adverse inference years than most of us admit remem for the City Law Department and for used against them for that deci bering, you have been an eloquent Gittleman and Barber, compiling the sion, He has argued over 65 cases and effective voice against the first codification of Louisville to the Kentucky appellate courts death penalty, on behalf of each of ordinances in many years. and over 15 in the Sixth Circuit. your clients and humanity. Your He has published a wide variety of unsparing ccnnitment to criminal in his 12 years at DPA, Kevin has articles in I4AcDL, The Champion, defense work, and to the battle held a variety of positions - The Advocate, Fellowship, and The against capital punishment, has appellate lawyer, trial services Louisville Examiner. In addition been an inspiration to all of u regional manager for public defend- to his articles, he is sought after who have been privileged to woi4. er programs In 25 Eastern Kentucky as a capital defense lecturer, pre with you. counties, and most recently as the senting over 20 times nationally person in charg4 of the Major Liti from California to Florida, and You have taught us a lot. But the gation Section MLS. in this lat countless times In Kentucky. most Important thing you have ter role, he has literally been the taught us is that good lawyering DPA polntman for the death penalty Sean Fitz McNally, Jesse Dylan Rob can still make a difference." efforts in Kentucky, His creative, inson, and Wil 11am Douglas Robinson relentless, dynamic commitment to are the proud children of Kevin Mc Dennis Balske, a nationally promi see that the death penalty is not Nally and Gail Robinson. They love nent capital defense attorney from carried out in Kentucky defines him the land of Bald Knob in Frankfort, Alabama, has reflected, "I think as a person and defines the best of and live in a magnificent house the best way to appreciate Kevin’s DPA. As head of MLS, he has amass constructed by themselves. contributions is to look at It in ed an incredible amount of disturb the light of the old Jimmy Stewart ing information on capital cases in Kevin has dedicated his profession movie, a Wonderful Life. You Kentucky, demonstrating the repeat al life to serving those in most may recall in this classic that ed, unfair imposition of death. Jimmy Stewart jumps from a need - criminal defendants, espe bridge, cially capital defendants. Kevin only to be saved by an angel trying He Is a member of the Kentucky Coa manifests the highest legal values to earn his wings. The angel then lition to Abolish the Death Penal in zealously struggling to provide shows Jlwsny Stewart what the world ty, and a founding member of the the least in the legal system with that he grew up in would have been Kentucky Association of Criminal a fair and equal opportunity. He like had he not been there. Defense Lawyers. has done extraordinary work at ex traordinary sacrifice. On all our Without KevIn, many people on and He has argued before the United behalfs, he brings the best tra of f Kentuckys death row, would States Supreme Court In Carter v. ditions of the legal profession to Kentui, 450 U.S. 288 1981 and bear on those In most need. Continued on page 52
-2- NoteCorrections. LiesEXHIBITREVIEW______HearingsINTERVIEWEXECUTIONS______SmithlentSierraStateCasesFelockWardKeddickCarterISSUES..v. fran th. Editor: IN THIS ISSUE The execution of the 100th person Is sobering for those defending PAGE capital clients. it’s important to 4 remember the many injustices In the ON POST-FURMAN JULIA ADAMS 8 killing process, so we feature In JUDGE TOURING PRISON PHOTO 11 this Issue the continued failures of the system. 13 UNITED STATES SUPREME COURT: Hicks v. 13 Neal Walker begins this issue as California 13 the editor for the death penalty Wheat v. United 13 column. Amadeo v. 13 Satterwhlte v. 14 Michigan v. 14 Judge Adams shares her good Arizona 14 thoughts with us in our continuing Patterson v. 14 series of interviews with important Murray v. persons in the Kentucky criminal 221. ..e.. IS Justice system. Enjoy this issue. KENTUCKY COURT OF APPEALS: Royalty v. 15 Hamilton v. 16 EN 16 KENTUCKY SUPREME COURT: Duke v. 16 .1.e_ 16 16 16 Francis V. 17 Anastasi v. 17 THE AD1VOCATEI F 17 POST-CONY ICTION: RCr 11.42 The Advocate Is a is-monthly publication of the Department of Public Advocacy. Opinions expressed In articles are thos, of the authors and do not DEATH PENALTY: Sanborn 21 necessarily represent the views of the Department 25 The Mvocate welcomes correspondence on subjects treated In Its pages. SIXTH CIRCUIT... 28 PLAIN VIEW: California V. 30 EDITORS Michigan 31 Edward C Menairen v. GeorMartin....Comnonweelth 32 Cr1. Brown States v. United 32 CONTRIBUTING EDITORS Washington 32 Williams v. 32 Iteds K. Weel Michad A. Wdbt States v. United 33 Mat Rm*w JuwnIl. Law People 33 NcGeies hears Do... &ges Carney v. 33 Deat HIghthts State V. 33 State v. 33 Brie it Fales.. ml. 34 Stat. v. 34 G.Is .ch Gwy Jabs... State V. 34 Patat. & Athvmy h ate leech., 1te ApdI U PRESERVATION OF TRIAL ERRORS - APPELLATE 35 Edt. DRRTh1E4T OP PUBLiC ACACY TR IAL TIPS 40 Pedinet., Park -Courts Martial S.ntncing Procedures Applicability 1264 utsvd. Road to Criminal Sent.ncing 40 FmnIdo KY 40601 -202B - Involuntary Coamitwient of the Mentally 44 06*. RecopSonte 502564.8006 -Does a Judg.’s Admonition to Disregard Cure the Prejudice?.... 47 Ptolsdlan & Advocacy 50.564-2967 -Ask 48 -Cases of 49 Toll Fr.. Numbet 800 372-2988 for messages only. Printed with St.t. Fund. ICRS 57.375 BOOK REVIEWS: Telling 51 -3- Majorjustice questions lurk in some executions , Morris Mason of Virginia, James Terry Racism and the death penalty Various probable Roach of South Carolina and John Brag- FROM THE TIME of hisarrest in 1974 don of Louisiana - all of who had IQs until hisdeath in the electric chairMarch or possible errors under 70- were also electrocuted. 15, 1988, Willie Jasper Darden never stopped claiming he was innocent of the haunt death lists The possibility of mistakes murder of Harry Turman, a white man ByPATRICIALEFEVER.E JAMES ADAMS, a black man, was who owned a furniture store in Lakeland, Special ReporI Writer convicted and sentenced to death by an Fla., andwhowas killed duringa robbery. Tenafly, NJ. all-white jury in St. Lucie County, Fla.,in Two witnesses came forward after the March 1974 for the felony murder of trial with evidence ofDarden’s innocence, ON THE OCCASION of the 100th per Edgar Brown, a white man. Adams, 47 at although they were never heard together son’s execution since the U.S. Supreme the time of his electrocution, May 10, by any court before the 54-year-old black Court; reinstated the death penalty in 1984, steadily maintained his innocence man was executed. 1976, NCR reviews a dozen cases that before, during and after his trial. Tried in Inverness, Citrus County, raise major questions ofjustice concern Although one witness identified Maims Fla, where blacks and whites have been ing the death penalty as the man seen parkedand drivingin the separated by centuries of racism and op vicinity of the victim’s home, the only wit pression and where the differences in Execution of the mentallyretarded ness who saw a man leave the Brownresi status andjob opportunities a 33-year-old wealth, social JEROME BOWDEN, dence at the approximate time of the are stark, Darden faced an all-white jury black man, died in Georgia’s electric homicide, and who spoke with that per was electrocuted and a prosecutorwhose opening remarks chair June 24, 1986. He son, said it was definitely notAdams. demonstrated the racial climate: for the robbery and murder of Kathryn The person with whom he had spoken, ‘The testimony is going to show, I Stryker, a white woman, in Columbia, crime was found said the witness, was darker thanAdams think very shortly when the trial starts, Ga. Evidence from the and had no moustache. He also reported that the victims in this case were white," on and around the property of Jarnie a life sentence in hearing a woman’s voice from inside the and ofcourse,Mr. Darden, the defendant, Graves, who received house before seeing the manexit. a possibly innocent man to his death. return forhis testimony against Bowden. Despite defense attorney Only a confession, which Bowden made requests, the after his arrest, tied him to FloridaDepartment of Law Enforcement to the police did not provide Adams’lawyer a report of the crime. exculpatory evidence found at the scene Mentally retarded, Bowden’s IQ was of the crime. A hair removed from the measured at 59 when be was 14. He at palm ofthe victim’s hand was determined When victims and - all of them racially tended five schools not to be Adams’,. but this evidence was prosecutor protest segregated - and was shifted to one not provided to hiscounsel until after the KENNETH BROCK was executed in special education class to another. These Texas June 16, 1986, for the murder of held apart from the "normal" trial. Florida’s governor declined to classes were grant a stay of execution to allow for Michael Sedita, a 7-Eleven manager, evaluation ofthisnew evidence. during the course of a robbery, despite Bowden’s trial attorney attempted to pleas for clemency from the prosecutor Recent investigations by a 21-year and the father of his victim. raise the competncy issue, but the trial veteran of the Philadelphia Police De Although judge suggested it be withdrawn. Bow. many Texas prosecutors no longer con den was never evaluated during histrial, partment’s homicide unit argues con sider robberies-gone-bad as capital crimes, juzy never heard any evidence of vincingly that Adams was innocent and this was not the case at the time ofBrocks and the posits the identity of the real killer. In his mental capacity. Bowden was illiter their conviction in the 1970s. ate, and evaluationmadeofhim afterthe recent book-length study of wrong Trying to prevent hisexecution, Brocles ful convictions, Miscw-riages of Justice, prosecutor testified to his being trial indicated his actions stemmed pri authors a good marily from mimicking those around him Hugo Bedau and Michael Radelet prisoner on death row and saidhe would and from a strong desire topl, par include Adams as one of 23 innocent per sons executed in the United States this not have sought lethal injection for him ticularly those in authority. had his crime occurred later. century. At least three other men - March 7, the Georgia House, bya92-49 "Killing Kenneth Brock is wrong. It specificallyto Timothy Baldwin of Louisiana, Edward vote, became the first state Earl Johnson of Mississippi and Willie will not change what hashappened to my rule out the deathpenalty as pirnimhment son," said the victim’s father, J.M. Sedita. for those found to be mentally retarded. JasperDarden ofFlorida-have beenexe cuted with "It will not ese my suffering or the suf- , Besides Bowden, lyonStanley of Georgia, significant claimsof innocence. -4- fering ofmywife. Two wrongs do not make Execution of the emotionally ill Execution of nontriggermen a right. I couldnot be at peace ifKenneth WAYNE ROBERT FELDE, 39, was ROOSEVELT GREEN, 28, died in the Brick dies." executed arch 15 in Louisiana’s electric Georgiaelectric chairJan. 9,1985, for the Despite requests for mercy, then-Gov chair for the murder of a Shreveport shooting death of Teresa Carol Allen in ernor Mark White and the Pardons and police officer he had killed 10 years ear December 1976, even though he was not Parole Board refused to grant clemency. lier. There was no question of Felde’s with Allen at the time of her death. Late Two other Texans, Charlie Brooks and guilt, butsignificant debate abouthis cul. in 1976 Green, an escapee from a Florida Jay Kelly Pinkerton, were executed de pabiity has been raised. jail, traveled to Georgia to visit a friend spite pleas from the families of theirvic Felde, the son of a World WarII veter he hadmetin jail, Car-zell Moore. tims, as were James Dupree Henry and an who committed suicide upon his re Moore talked Green into assisting hixr Wil]ie Rivers in Florida turn to the United States, joined the in the robbery of a local store owner to Army and arrived inVietnam on his birth whom he owed money; Moore agreed to Cruel and unusual dayin 1969. He was assigned"tunnel duty" share the proceeds with him. However. JOHN LOUIS EVANS was the first and had to crawl on his belly through Allen, a store clerk, recognized Moore person to be electrocuted in Alabama in enemy tunnels, unable to back up, turn. and so Moore kidnapped her, drove her 18 years. He was convicted at age27 and around or move. and Green around and raped her. There sentenced to die for the robbery of a pawn He was also recruited to recover bodies was no evidence that Green took part in shop in 1977 duringwhich theowner was of dead GIa. He told offindinga friend so the rape. killed. After exhausting his appeals, burned by napalm that his arms came off Later, when they ran outof gas, Moore Evans - his head shaved and smeared in Felde’s bands as he tried to move him to sent Green to get gas for the car. When he with conducting gel - was strapped into a waiting helicopter. returned, he discovered that Moore had the electric chair April 22, 1983, with When Felde returned from the war, he shot and killed Allen. Green agreed to more than 30 witnesses looking on. was sufferingfrom nightmares, flashbacks help Moore pull her body into the nearby After a 30-second surge of 1,900 volts, and other bizarre symptoms of a disease bushes; The two then parted ways, Green journalists reported that "a fiery arc shot now recognized as Post-Traumatic Stress leavingwith the stolen rifle andcar. from beneath the mask that covered Disorder CVISD, which hasaffected ahalf Despite evidence that Green had not Evans’ face. Smoke poured from the elec million Vietham veterans. Although it is been present at the murder or even knew trode on his left leg." The strap on Evans’ now treatable, whenFelde returned ithad of Moore’s intentions, he was convicted leg burned loose. not yet been recognized, and Felde re and sentenced to death. In his report, the After the initial surge, prison physi ceivednotherapy. Instead,hetumedtoa trialjudge wrote that "the defendant war cians found that Evans’ heart continued life ofviolence. an accomplice in a murder committed by to beat One witness reported seeing him When his mother diedin 1978,Felde de another person, and his participation in struggle to take a breath. Then a curtain cided to take his own life. Shortly after her the homicidal act was relatively minor.’ was dropped in front ofthe onlookers be death, he was arrested for drunkenness Five days after Green’s electrocution. fore the second surge was released. and handcuffed in the back of a police car. Doyle Skillern, another nontriggernian Officials replaced the strap on Evans’ Felde reached for a gun hidden in his belt was executed in Texas. leg, tightened each of the straps and ad and tried to aim itat hishead. The police ministered a second surgefour and ahalf man in the front turned and tried to grab Ineffective trial representation minutes after the first. Again the exam the weapon as Felde fired, but was himself JOHN YOUNG, 28, was executed in th ining doctor reported that Evanswas not fatally injured by two shots that went Georgia electric chairMarch 20,1985, for dead. the seat ofthe car. the beating deaths ofthree elderly peopli His attorneys, reportedly frantic, made Felde’s trial attorney based his argu during the commission of a robbery. aflnalappealtohalttheexecution.Acall ment on his client’ssymptoms ofPTSD - Young’s early history offers clues to hi was made to then-Governor George Wal thefirst such defense of its kind in the na violent behavior as a young adult. Wher lace pleading that the electrocution had tion. But after his conviction, both Felde he was four or five, Young’s mother was become intolerably cruel and unusual - and his lawyer asked thejury for a death murdered as she lay in bedwith him and in violation of the Eighth Amendment sentence. his brother beside her. John was sent ft Wallace refused, andathird surge ofelec The jurors tearfully obliged, adding in his grandmother’s, butthe family quickly tricity killed Evans. a statement, "We feel the trial of Wayne decided they did not want responsibility The forensic lab that conducted an au Felde has brought to the forefront those for John andhis brothers andsisters. topsy on Evans showed that hisbody had extreme stress disorders prevalent among Overthe years, the children were shuf. two fourth-degree burns on the temple thousands of our veterans." fled from relative to relative. Young left and asecond-degree burn onthe leg. But Two weeks after Felde’s electrocution, school after the fifth grade, got involved the prison cornmisioner denied that the the California supreme court unanimously with drugs and landed in reform school. executionhad gone awry. overturned the death sentence of a Cali from where he was released at age 19. March13, 1985,Texas executioners took fornia death row inmate, citing FI’SD as Young’s court-appointed attorney for more than 40 minutes to find a suitable a mitigating factor in the case. Another his capital trial, Charles Marchman vein in which to inject a lethal dosage to PTSD sufferer, David Funchess, was exe hadproblems ofhis own. According to an Stephen Morin, a former drug addict cuted in Florida in 1986. affidavit signed by Marchman later, he -5- was, at the time of the trial, heavily in- tox’s silence on the matter, delayed ad- Ignoring rehabilitation volved in drugs andhaving severe family ministering the lethal injection for two WILLIAM BOYD TUCKER, 31, died problems. hours until convinced the execution was in Georgia’s electric chair May 29, 1987, Marchman separated from his wife in to take place. Streetruan’s attorneys were for the kidnapping and murder of Kath March 1975. In late 1975 his father be- on hold with the court when the poison lean Perry, whom he killed while high on caine ill, and the lawyer traveled fre- flowed into his veins, drugs and alcohol. Tucker, the son of a quently to Tennessee to care for him, career soldier and one of seven children, tion ofjuvenIeS started abusing substances at 13. His Marchxnan admitted to spending little 24, was exe- time on Young’s case. JAMES TERRY ROACH, stormy relationship with his father led cuted in South Carolina’s electric chair he spent time in a He never obtained any family history him into trouble, and Jan. 10, 1986, for the deaths of Tommy reform school. from Young or his relatives. He limited Taylor, 16, and Carlotta Hartness, 14. college in 1977, he his trial preparation to the guilt phase After enrolling in The crime was one of the most brutal began to repair his ties with his father. andto findinga singlepsychologist totes- knownto Columbia, S.C., residents. tify duringthe sentencIngphase.Young’s But the day after their reconciliation, the Roach, 17, Joseph Carl Shaw, 22,amil- father died and Tucker plunged into a jurynever heard any testimony about his itary policeman at Fort Jackson armY ldbood. deep depression. base in Coluthbia, and Ronnie Mahaffey, Again, he turnedto drink anddrugs and Three weeks after Young’s al, Perry. Al- man was arrested on drug charges. He 16, a school dropout, were high on PCP not long afterward murdered was sentencedandlater disbarred.When and alcohol when they stumbled upon thoughhe had nopreviousrecord ofviolent released from jail, the lawyer disap- Taylor and Hartuess at a deserted park crime, thejury sentencedhim to death. peared, andappellate attorneys for Young outside town. Shaw shotTaylor, and the Once in prison, Tucker underwent a wereunable tofindhim to discussthe . ° kidnapped the girl, drove her to a se- profound rehabilitation, which nearly a Ten years after the i chided spot, raped her and shot her sev- decade laterprison officials judgedas sin- surfaced. Admitting hisrepresentation had eral times. Ithas never been ascertained care and dramatic. The condemned man been poor, he pleaded with an appellate which of the three killed her. tookcorrespondence courses in Japanese judge for a new trial, but Young’s appeals At the time of their arrests, there was and Norwegian, psychologyand religion. hadbeen exhausted, a tremendous clamor for the state’s After a 10-year struggle with his convic andthe court. was un- newly reinstateddeathpenalty. Only one able to hear Maxtlunan’snew testimony, tions, he was received into the local attorney was appointed to defend the United Methodistchurch. Execution by default threesome, even though each maintained Tucker taught other inmates to read differentandconflicting defenses. The at- model prisoner ROBERT SThEEThiAN, 27, was axe- and write and became a waive - cut.ed Jan. 7, 1988, in Texas for the 1982 torriey recommended thattheboys so much that, at times, when Geor- their rightto ajury trial and - despite a gia’s death row was overcrowded, he was shooting deathofChristine Bak. St.. man’s execution drew warning from the trialjudge - indicated permitted to be housed within the gen national attention to Roach and Shaw they would be likely because of a freakish Supreme Co eral prison population. ing that allowed the execution c to get a life sentence from thejudge. in a six-minute statement just before even while the court agreed to consider Roach was retarded, with an IQ of 64. his execution, Tucker said, "I cannot Streetman’s case. Later evidence suggested he may have change what I did, but I can andhave be lt takes four votes to win full review of a suffered from the early stagesof Hunting- come a loving, caringarid mature person.. petitioner’s case and four ton’s Chorea, a debilitating brain disease, I am grateful for the chance I had to do so votes to hold over the last years, and petition while the court decides a similar which Roach’s mother had. None of this I sin now ready issue evidencewas raised athis trial, however, to leave this world as somebody I could thejustices have agreedtohear,but like." five votes are needed to win a stay. Street.. Mahaffey, who testified against Sb,aw man lackedone voteto halt his execution. and Roach, got a life sentence while the latter pair received the death penalty. MXdPUItiO1 of tho deitb Hours before pen9itr by convicted murderers his scheduled death, his Shaw was electrocuted in January 1985. "1.ETS DO ]T," said Gary Gilmore, 36, attorneys filed an appeal based on the A yearlong effort to win clemency for pending Franklin as he faced a Utah firing squad Jan. 17, case, and Texas Attor- Roach followed, with pleas sent to the 1977, becoming the first person to be exe ney General Jim Mattox agreed not to Georgia governor from Mother Teresa, pursue any executions while outed under the nation’s new death pen- Franklin the UN secretary general, Jimmy Carter laws and a national celebrity at the was pending. andhundreds more. alty At midnight Jan. 7, Streetman was A brief filed with the Organization of same time. Gilmore’s demand to die be- strapped to the injection gurney, and the came the stuff of a motion picture arid a American States OAS arguingthat best seller by Norman needles were inserted into his arm while execution of juveniles violated the OAS Mailer, The Exe his lawyers struggled to reach the court. Covenant on Civil and Political Rights cutiorser’s Song. The court voted first 4-4 to hear Street- produced a rulingin favor ofRoach, but it man’s case but failed to rally the needed came too late to stop his execution. Those who knew Gilmore saidbeloved fifthvote to stayhis execution Charles Ruinbaugh and Jay Pinkerton every minute of media attention. A Prison officials at Huntsville, Texas, in Texas were also executed for crimes street-smart con man with an IQ of 130, baffled at the court’s ruling and at Mat- they committed before age 18. Gilmore had spent almost his entire life in C -6- The’ Death Penalty correction facilities. On his release from one such institution in 1976, Gilmore re Costs More Than Life peatedly told an uncle he would commit suicide rather than go back to prison. His The fiscal studies continua to show: Executions cost mor, than life imprisonment. This attempts to be executed were justthat. Isn’t good news for financially strapped states. Arkansas found out about the -cost of Convicted for the murder of a motel executions in 1971 when fiscal-minded public officials commuted 15 death sentences to manager during a robbery in July 1976, life imprisonment, saving the state $1.5 million. Gilmore demanded that no appeals be tiled to fire his The Kansas legislature found out about the cost of the death penalty last spring. Before ffled on his behalf. He that, every year for eight years. legislators had passed th, death penalty statute only court-appointed representatives when to hey, the anti-capital punishment governor veto it. Last year. with a new, pro-death they attempted to file an appeal. Through governor, the legislature looked at the costs and voted against reintroducing out the winter of 1976, Gilmorecontinued executions. The price tag for Kansas would hav, been $10 million the first year alone, his struggle to die as execution dates and $50 mil lion before the first execution in 1990. It wasn’t worth it to a state were set andthen stayed. already cutting services 10 percent across the board. In the factofGilmore’s manipulationof In 1982, a New York State Defender’s Association study put the cost of life Imprisonment the spotlight around his voluntarysuicide, at about $600,000 per person, and execution at 1.8 million. A 1985 University of the memory ofhis victim has all butvan California study estimated $4.5 million per execution. Capital cases are three times ished. Gilmore’s voluntary execution led more expensive than noncepital cases because taxpayers foot the bill for prosecutors, to a series of other volunteer suicides, the court, and the defense as well, since virtually all prisoners Sent to death row are raising questions of whether the state indigent. Capital case require Iwo trials: one for guilt or innocence, and one for sentencing if there is a conviction. With the death of a client at stake, defense may rightfully participate in an individu al-torneys file five times as many pretrial motions and us. every appeal step possible. al’s suicide. Jury selection takes longer because citizens opposed to capital punishment must, be Eleven other condemned prisoners have ferreted out. And housing and guarding inmates in maximum security while the legal been volunteer executions, and at least process goes on Is double the $15,000 average yearly cost per inmate. Death row inmates one death-row inmate reportedly com are not allowed to work. mitted his crime to obtain the death pen Despite the huge costs, there isn’t a shred of evidence that execution deters future alty. U murders. In fact, in New Orleans from July to September last year, the murder rate increased 16.9 percent despite Louisiana’s spate of eight executions during The same Reprinted by permission of National period. "Domestic fights and drugs," the police superintendent said when asked the cause of the increase. Catholic Repcfrter, P.O. Box 419281, Kansas City, Missouri 64141. Consider the alternative to executing a few peopl, a year - Job programs, drug rehabilItation, improved law enforcement. Or, as South Carolina capital def.nse lawyer David Bruck puts It, how many laid-off police officers is one execution worth? For residents of Louisiana, th, death penalty costs more than money. In 1987 Amnesty International targeted the United States and Louisiana in particular, for human rights violations based on an 18-month study by an international team. So now, as a result of Amaesty’s campaign, the Louisiana Department of Corrections gets mail from Amnesty members and government leaders all over the world, criticizing the state for abusing human rights alongside countries like Iran, the USSR and South Africa. But the death penalty has a deeper cost. By electrocuting, poisoning, gassing and shooting people who have killed, we do what they have done. We imitate the very violence we seek to eradicate. Helen Pr.Je.n, a member of the Sisters of St. Joseph, is the director of Pilgrimage for Life, an organization against th, death penalty. Pacific News Service. R.print.d wilt Permission. CAPiTAL PUNISHMENT "does not effectivelydeter serious crime," doesnot "alleviate the fear ofviolent crime,"does not "pro tect societymore effectively than other alternatives,"does not "re store the social order" and "is not imposed with scrupulous fair ness and in such a way as to insure that innocent people are not unwittinglyexecuted "So wrote the bishops of illinois’sixdioceses in anApl 15 statement opposingthe death penalty -7- Interview with President Julia Adams of the District Judge’s Association Why did your Association form? sponsibillties of the Court Desig What are its purposes and accomp- nated Workers. Detention of seri II shments? How many members do you ous offenders continues to remain a have? significant problem, especially in the rural counties. This particu The District Judges Association was lar problem continues to be can- formed to promote the interests of pounded by what appears to be a the district trial judge and parti poor working relationship among cularly to secure educational stan fiscal courts, Jailers, the Justice dards and to provide a clearing Cabinet and Corrections Cabinet. house for sharing information and The 24 hour detention hearing re problems emong the district bench. quirement presents major problems We currently have 93 active mem for those Judges who preside in bers, One of our primary purposes multi-county districts, in the is to plan and coordinate the edu area of dependency, the new code DISTRICT JUDGE JULiA ADAMS cational programs available to our falls to address the chronic, con fellow judges. We also provide tinual low-level abuse and neglect before the court is generally know limited funding for extraordinary often associated with parental sub to the court, or the family Is educational opportunities for those stance abuse that we routinely see known to the court and these courts judges who qualify. and recognize to be the most preva can often "tailor-make" an alterna lent type of abuse and certainly tive program to fit that particular How are district Judges finding the among the most damaging. We have need. new juvenil, code? What changes been very pleased with the funding from the old law are working best, provided for legal counsel with Do criminal defendants In district and what problems have been created regard to dependency cases. It has court get meaningful, Individual as compared to the old law? How been our overall experience that justice, or is district court a have recent changes to the law af juvenile court is most productive process that by necessity creates fected juveniles? when attorneys participate In the tmlreadml II Justice"? process; specifically attorneys who Implementation of the new Juvenile have a regular Juvenile practice. The quality of Justice in any court code has not been as difficult as Is directly related to the quality originally anticipated by those ac Is there different ejusticem based of representation afforded the par tively involved in the Juvenile on whether the Juvenil, defendant ticipants, Also no other Judicial process. We have provided two Ju is prosecuted and defended in a level has the unique opportunity to dicial colleges with primary focus major metropolitan area versus a see the broad spectrum of each com on the code, as well as a special rural area? munity as do we. because of that Juvenile update session in the sum continuing vital contact, there is mer of 1987. The changes brought No. There is no denying that the an important relationship between about by the 1988 General Assembly more urban areas provide a greater the defendants and the system. 1 were, on the whole, beneficial variety of home-based alternative must confess that after a number of changes for the district court. We treatment programs for Juvenile of years on the bench, neither prose have been generally, very pleased fenders. On the other hand, in our cutors, defenders nor myself hav with the effects of the intake re- rural areas each child who comes formulated a definition for "mean-’ -8- lngful Justice." There are, no How do district Judges view the caseload for a circuit judge for doubt, times that my colleagues and practice of public defenders in the Fiscal Year 1987 was 836. I become frustrated with the sheer district courts? weight of the caseload and all- Should county attorneys be full- night phone cal Is, general ly how Necessary. As I have already stated tims or part-time pros.cuters? ever, it is our families who suffer the system seems to Iow more as a result of that frustration and smoothly when public defenders are The status of the county attorney not the citizens before the court. actively involved. Creative dispo should be related to the caseload. sitions tend to be a direct result of the input of the local public What is the biggest unfairness oc-: Do district court criminal defen- defenders. And, quite frankly, an curring in the district court sys dants obtain different results in active public defender "keeps us on tem in criminal cases? their cases if they have legal re our toes." presentation versus not having leg- Poor people have less access to a I representation? Can public defenders give adequate securing effective alternative sen representation in district court tencing programs. Generally, no. However, aggressive with their high caseloads? defenders can usual ly implement From the district court Judge’s more coinprehens I ye treatment pro- Yes. i have yet to see a public viewpoint, what changes in the grains that are acceptable to the defender "shelf" a case In district criminal Justice system would most court. The general rule is that we court. Remember, if the defender’s Improve it? encourage legal representation be caseload is high, so is the case cause the process flows more load of the prosecutor, the court, Funding for diversion programs for smoothly. and support staff. Public defen first offenders. Mediation pro ders incorporate that reality Into cesses for community squabbles. their trial strategy. Judicial access to criminal his In criminal cases in district court tories at arraignment. L what do district Judges find the How can public defender represen most persuasive for rendering more tation in district courts across How do politics and practicaliti.s favorable sentencing decisions? the state best be improved? influence the district court crimi nal just ice system for the better A prepared alternative to incarce- I wou I d recommend very broad pre and for the worse? rat ion that addresses not only the trial conferences, so that the Com needs of the defendant, but recog monwealth, at an early stage, can in terms of practicailties, because nizes the needs of the community Identify poor cases and respond of the heavy caseload, the prepared and confirmation by all persons accordingly. lawyer is more likely to obtain a involved that they or their agen positive result. The lawyer who cies are prepared to commit to the falls to do investIgative/discovery proposed alternative. What Is the average caseload of the work prior to hearings, and chooses district court Judge in the state instead to investigate his case by What do district Judges find most of Kentucky, and what is the case way of filing form motions and persuasive from the defense in pre load trend for district court wasting valuable court tIme, simply trial release requests In criminal Judges? What percentage of these wiT I --not earn the respect of the cases? cases are criminal? How do dis- court or the prosecutor and should trict Judges caseloads compare not expect anything other than Sufficient family and social his with caseloads of other Kentucky basIc consideration. tory to indicate that the defendant Judges? is not a risk In terms of court ap An effective advocate should ap pearance. Average caseload per district Judge praise himself with each for Fiscal Year 1987 was 4281, 74 local rules and customs. Aggres Long-term regular employment is percent of which represents crim sive advocacy does not require an perhaps the single most persuasive inal filings. The 1987 fiiings In adversarial professional posture element in order to receive a fav dicate a downward trend. Of the toward the court or the Common orable program release. Kentucky trial Judges, the average wealth. Common professional cour- -9- tesy will not take the edge off of a district court probation. Be What ar. the legislative goals of a good defense. cause of the nature of our criminal your District Judges’ Assoclation cases, a large number of our of fen far the 1990 s.ssIon? Very clearly, Judges are political ders are chronic offenders who have entities surrounded by other po lit- already had access to the limited icai entities. Police chiefs, coun alternatives available In most of We are in the process of developing ty attorneys, commonwealth attor our communities. We cannot over our legislative program for the neys, Jailers, county Judges, cir look the fact that, at this time, 1990 Generai Assethiy. Our legis cuit judges, sheriffs, newspapers, public opinion is running strongly lative committee has been appointed the local bar all effect the day to in favor of incarceration for cer and approved with Judge James Bon- day operation of the local system, tain types of offenses. You might derant serving as chairman. The as well as the productivity of the want to be aware that the court committee will be meeting through court. Rarely, in my experience do clerks are overburdened and cannot out the summer months and will re- these political groups agree on possibly monitor alternate compli port to the Association at our Sep appropriate policy or procedure, ance, nor is the court able to do tember college. At this time it therefore it has become acteptable so, since a great number of our would be premature for me to at to break with former Kentucky tra district Judges do not have any tempt to answer your question. dition and Judges are now better secretarial staff. able to separate themselves from these influences and develop an in The district bench is, by itsna- dependent Judiciary. Because of What do district judges view as the ture, a flexible Judicial unit. in the ever present political climate, major causes of crime? 1984 the legislature passed the the most appropriate response is DUI-"Slammer Bill" and developed now "take it to the courtroom and Substance abuse and dependency, the Domestic Violence law which we put it on the record." dysfunctioning family history, ig were required to implement and en norance, poor self-image. force. In 1986, the General Assem How are Involuntary coamitment of bly ratified the Juvenile Code and the mentally ill and mentally re Does the criminal Justice system we struggled to adapt. In 1988, the tarded cases viewed by District properly recognize and deal with Juvenile Code was changed signifi Judges? Is the advocacy by defense those causes? cantly by the legislature, along attorneys adequate In these cases? with increased Jurisdiction in Probably not. However, it is impor Small Claims/Civil, and major We are all uncomfortable with these tant to understand that no system changes in Probate and Mental very personal unnatural types of could take years of cultural, so Health. The system did not stand hearings. In general, defense work cial, educational and economic still, in 1987 the district courts in these areas is exceptional. failure and remold the offender so processed 646,000 cases. Because that.those failures would not sig we are fortunate enough to have With Jails overcrowded and the nificantly effect the quality of regular and routine contact with costs of Incarceration vastly In his life. Our system of justice the citizens who appear in our creasing, sentencing is often the does provide for sentencing mea courts we are aware that the rule main issue. Why do district Judges sures calculated to address those of law protects not the system, but not use alternate sentencing more causes, when available. the participants - the flesh and often, especially sInce alternate blood of our communities. sentencing can often better meet traditional sentencing goals and Of late, we have been seeing a new the concerns of the victim and the type of young, middle or upper District Judge Julia Hylten Adams, cnun ity? class offender who believes that he 25th Judicial District, was ap or she will never get caught, is pointed to th. bench in Jamuary, Alternative sentencing is preferred above the law and would not be 1984 by Governor Collins, and was by the district bench, If the al required to suffer penalties pro elected in 1985. She received her ternate proposal is enforceable. vided by law because he or she is a J.D. from the University of Ken In many counties, probation and superior person. The system is suf tucky Co I leg. of Law in 1977. She. parole off Icers have been advised ficient to deal with these elitist became President of th, Distric not to accept or actively supervise of fenders. Judge’s Association in 1988. -10- Changing Faces, Common Walls: Kentucky Prisons The Changing Faces, Cannon Wails exhibit is a product of extensive research done from 1982 to 1988 by Kyle Ellison at the Kentucky Cor rections Cabinet, Office of Correc tions Training, and William Bain, Deputy Warden at Northpoint Train ing Center. This research project was originally conceived as a use ful way to train correction person nel about the problems and demands of working prisons. Favorable re sponse to these efforts prompted the Kentucky Council on Crime and Delinquency to provide funding to expand the collection of histor ical photographs, in 1987, Kentucky Humanities Council and Eastern Ken tucky UniversIty Department of Cor rectIonal Services funded a grant to prepare this permanent traveling Convalescent Prisoners - Kentucky State Reformatory, Frankfort, 1912 exhibit. Copies of the exhibit will Courtesy of the KY Historlcai Society, Nathan Prichard be housed at Kentucky Department of Library and Archives, Kentucky His tions propose to ease the taxpay itself but also return a profit to torical Society, Frankfort, Kentuc ers’ burden by opening- prisons for the state. The legislature quickly ky, and Eastern Kentucky University profit and letting the state con accepted this offer and institutod Department of Correctional Servic tract to lease bedspace. Overcrowd the "lease system." In return for es. The exhibit is available to the ing, privatization, reform of pri running the penitentiary and paying public for display and will be at sons are all issues which have act the state a percentage of the pro the Louisville free Public Library ed on our prison system throughout fits from inmate labor, Scott, as at 4th and York Street until the its 189 year history. The history lessee, had control of both the in end of August. Much of the factual of Kentucky’s prison system teaches stitution end Inmate labor. Al information for the exhibit was how these issues have been managed though the Governor had the power taken from a chronology researched in the past and the long-term pit to remove any lessee who failed to and published by T. Kyle El lison. falls of policies we may choose to meet his obligations, lessees Ed. Note: A copy of the chronology implement today. became so politically powerful It will be provided to you if you will was impossible to remove thorn from write to The Advocate. THE LEASE SYSTEM: 1825 TO 1880 office. Twenty percent of the state’s In 1825 Joel Scott, an entrepre THE CONTRACT SYSTEM: 1880 TO 1891 irrnsates are backed up In county neur, suggested that if he ran the jails waiting for bed space in a penitentiary as a business, the Under the "contract system" insti state institution, Private corpora- penitentiary would not only pay for tuted in 1880, the state allowed -11- private contractors to bid for the tate" inmates, in 1860 WIlliam C. right to use convict labor on con Sneed, the penitentiary physician, struction projects away from the was commissioned by the Kentucky penitentiary. This not only re legislature to write a history of duced overcrowding at Frankfort but the penitentiary. In his legisla also made It possible for the state tive report, Sneed predicted that to receive income from inmate la the lease system wouid make the bor. in addition to the per diem penitentiary in1 an "engine of payment to the state for inmate la political ambition end the pest borers, contractors were expected house of moral corruption." to provide housing, food and cloth ing for the inmates at their work sites. Most contractors did not Overall, the most effective reforms choose to lower their profits by have come from the efforts of In spending more than absolutely nec mates themselves. Through several T. Kyle Ellison essary on inmates. Inmates working class action suits starting in at sites in remote areas were com 1976, inmates persuaded the federal ONCLUS ION pletely dependent on contractors courts to mandate population ceil who were seldom held accountable ings and improved living conditions A study of prison history provides for their living and working condi at Kentucky State Reformatory and a means to raise the appropriate tions, Although legislative commit Kentucky State Penitentiary, and to issues and to predict the long-term tees held investigative hearings, improve vocational education and consequences of decisions we make few of those responsible for inmate Inmate housing at Kentucky Correc or fail to make today. Ultimate deaths were punished. tional InstitutIon for Women, ly our society must build social and economic conditions that will IPêIATE ASSEMBLY LINES: at least reduce the inmate popula 1891 10 1935 While creating positive reforms, tion of the future, The success or’ the dissent decrees population failure of these efforts will be. The new state Constitution passed ceilings burdened the other insti reflected by reductions or increas in 1891 included Article 253 which tutions and county jails which were es in the price we pay for the pri prohibited use of inmate labor out forced to take the excess pri son system over the next century. side the walls of the penitentiary. soners, Current efforts to manage Contractors could still bid for the prison population explosion Kyle Ellison rights to use inmate labor inside bear a striking resemblance to 185 N. Bellaire the penitentiary and they expanded strategies employed during similar Louisville, Kentucky 40206 their operations within the wails crises in the 1880s and the 1930s, 502 895-5721 to take advantage of the labor sup ply. Because contractors hired pro Kyle Ellison was employed by Ken fessional photographers to document The return of prisons for profit tucky Corrections Cabinet from 1972 their operations, we have a record ranks high on the concerns of many to 1981 as a Probation and Parole of inmate life during this era. Or state prison systems, in the 1880s Officer in Louisville and from 1981 ganized labor’s push for a curtail contractors found they could to 1988 as a Staff Training in ment of the inmate’s cheaply pro increase profits by hand-picking structor. duced goods culminated in The inmates for their work crews. in Hawes-Cooper Act which excluded the 1980s private prison corpora private industry from the prisons. tions will be able to increase A Primer For Jail Litigators. Includes After that, prison industries began their profits if they can control chapters on -legal analysis, the use of to decline. which inmates come to their facil expert witnesses, class actions, attor Ity. This could be accomplished by neys’ fees, enforcement, remedies, and many practical suggestions. PRISON REFORM: 1860s - 1980s transferring those inmates with Si 5. high medical expenses or behavior Available from: The National Prison The politics of overcrowding and problems back to state Institutions Project, 1616 P Street, NW. Washing ton, DC 20036. exploitation of inmate labor have and getting "problem free" inmates overshadowed efforts to "rehabill- in return. -12- Review West?s A Review of the Published Opinions of the Kentucky Supreme Court Kentucky Court of Appeals United States Supreme Court . Linda IC. West grounds that whether the contempt fused to accept Wheat’s waiver and United States was clvii or criminal was itself a substitute counsel who also repre Supreme Court federal question. sented a codefendant with conflict ing interests. The Court held that CONTEMPT SEARCH AND SEIZURE acceptance of the waiver was dis Hicks v. Felock California v. Greenwood cretionary. The Court more specif 43 Cr1 3005 43 Cr1 3029 ically stated, that, "Itihe DIs April 27, 1988 May 16, 1987 trict Court must recognize a pre sumption in favor of petitioners Feiock was adjudged in contempt for Acting without a warrant, police counsel of choice, but that pre failure to make court-ordered child searched garbage bags left on the sumption may be overcome not only support payments, and sentenced to curb in front of home, by a demonstration of actual con a jaIl term. The trial court ap The search was performed after the flict but by a showing of a serious plied to Feiock a state statute garbage was picked up by the regu potential for conflict." in so which imposed a presumption of ab lar trash collector and handed over holding, the Court cautioned trial ility to comply with the court’s to police. The Court rejected courts to be wary of conflicts man orders. The California appellate Greenwood’s argument that the ufactured by the prosecution to courts reversed, holding as a mat search violated a reasonable expec prevent a defendant from obtaining ter of state law, that ability to tation of privacy. "tHieving depos particular counsel. Justices Bren comply was an element of the of ited their garbage ‘in an area par nan, Marshall, Stevens and Biackmun fense of contempt and thus, as a ticularly suited for public in d issented, matter of federal due process, the spection and, in a manner of speak burden of proof as to this element ing, public consumption, for the HABEAS CORPUS-PROCEDURAL DEFAULT could not be shifted to Feiock. express purpose of having strangers Madeo v. Zant The United States Supreme Court take it’ citation omittedi respon 43 Cr1 3043 held that this analysis was correct dents could have had no reasonable - May 31, 1988 only If the contempt was criminal. expectation of privacy in the in Only then would the state be re culpatory items that- they dis- - On direct appeal and in his habeas quired to prove each element of the carded." Justices Brennan and Mar petition Amadeo raised a previously contempt beyond a reasonable doubt. shall dissented. unasserted jury composition chal The Court explained that a sentence lenge. The challenge was based on to a definite term of imprisonment Ed. Note: See Plain View for a a memorandum from the prosecutors in vindication of the court’s au further discussion of Californiav, office to jury commissioners direc thority was criminal In nature. Greenwood, ting them to underrepresent women However, a sentence of imprisonment and blacks on jury lists but not by until payment is made Is civil RIGHT TO COUNSEL - CONFLICT so much as to constitute a prima since it is not a "punishment" but Wheat V. UnitedStates fade case of discrimination, The a means to enforce compliance. The 43 CrL 3037 memorandum came to light only dur case was remanded for state court May 23, 1988 ing the pendency of the direct ap determination of whether the con- peal. The state court rejected * tempt was criminal or civil. Jus In this case, the Court held that Amadeo’s claim as unpreserved. The tices Scaila, and Chief Wheat’s right to counsel was not habeas court, however, found cause Justice Rehnquist dissented on the violated when the trial court re- for the procedural default since -13- the discrimination had been con The Court hold that a Sixth Amend Roberson was arrested for burglary cealed by county officials. The ment violation may be harmless and, after being given Miranda war Eleventh Circuit reversed. The where the deprivation does not nings, Invoked his right to coun United States Supreme Court unani "contaminate the entire criminal sel. Three days later police again mously reinstated the finding of proceeding." In Satterwhite’s case questioned Roberson without counsel the district court. The Court the psychiatric testimony, while it but concerning a different, unre found adequate factual support for did not contaminate the entire lated crime. This time Roberson the district courts finding that trial, was the only expert evIdence incriminated himself. the basis for the claim was con In support of a finding of future cealed. The Court cited Reed v, dangerousness. Thus, the error was The Court held that the second In Ross, 468 U.S. 1 1984 and Murray not harmless beyond a reasonable terrogation was barred under Ed v. Carrier, 477 U.S. 478, 488 doubt. The presence of other evi wards v. Arizona, 451 U.S. 477 1986 for the principle that "a dence sufficient to support a find 1981 regardless of the fact that showing that the factual or legal ing of future dangerousness was ir it addressed a different crime. basis for a claim was not reason relevant. "The question...Is not "As a matter of law, the presump ably available to counsel, or that whether the legally admitted evi tion raised by a suspect’s request some interference by officials made dence was sufficient to support the for counsel - that he considers compliance impracticable, would death sentence, which we assume It himself unable to deal with the constitute cause..." was, but rather, whether the state pressure of custodial interrogation has proved beyond a reasonable without legal assistance - does not RIGHT TO COUNSEL doubt that the error complained of disappear simply because the police Setterwh ite v. Texas did not contribute to the verdict have approached the suspect, still 43 Cr1 3043 obtained," in custody, still without counsel, May 31, 1988 - about a separate investigation." SEARCH AND SEIZURE Justice Kennedy and Chief Justice Without serving his motion on de Michigan v. Chesternut Rehnqulst dissented. fense counsel, the prosecutor re 43 Cr1 3077 quested a psychiatric examination June 13, 1988 RIGHT TO COUNSEL of Satterwhite. The motion was Patterson v. illinois granted, again without notice to In this case, the Court examined 43 Cr1 3146 the defense. At trial one of the the question of what constitutes a June 24, 1988 examining psychiatrists testified seizure, The Court unanimously as to Satterwhltes "future danger held that police did not "seize" Following Patterson’s indictment, ousness," a prerequisite to a sen Chesternut when they drove along but before appointment of counsel, tence of death under Texas’ capital side him to "see where he was Patterson responded to police in sentencing scheme. Satterwhite com going" and observed him dispose of terrogation with a statement. Pat plained that this procedure vio evidence, The Court enunciated the terson was first given Miranda lated his right to counsel as set proper test as whether a reasonable warnings but did not request coun out in Estelle v. Smith, 451 U.S. man, viewing the particular police sel. The Court held that, even 454 1981. The Court agreed that conduct as a whole and within the though Patterson’s right to counsel defense counsel was entitled to no setting of all of the surrounding attached upon IndIctment he waived tice of the requested examination circumstances, would have believed that right when he agreed to make a so that Satterwhite’s decision whe he was not free to leave. Because statement following MIranda warn ther to submit to the examination there was no seizure the Fourth ings. The Court noted that Patter could be made with the guidance of Amendment was not implicated. son was additionally advised of his counsel. An ex parte order placed indictment, The majority’s refusal in the record did not adequately Ed. Note: See Plain View for a to attach special Significance to notify counsel that his client further discussion of Michigan v. the Indictment is a departure from would be examined for future dan Chester nut. previous analysis. See Mlchlganv, gerousness. Jackson, 475 U.S. 625 1986; Ed lNTEOTlON wards V. Arizona, 451 U.S. 477 The Court next addressed the ques Arizona v. Roberson 1981. Justices Brennan, Mar tion of whether this Sixth Amend 43 CrL 3085 shall, Stevens and Biackmun dissen ment violation could be harmless, June 15, 1988 ted. -14- SEARCH AND SEIZURE the warrant. Justices Brennan and not be sustained by any conceivable Murray v. Cart.r Kennedy did not sit. exception." Justice Blackmun and 43 Cr1 3168 Chief Justice Rehnqulst dissented. Juris 27, 1988 CONFRONTATION OF CHILD WITNESS 3. Kentucky Court of 43 CrL 3226 In this case, the Court held that June 29, 1988 Appeals the Fourth Amendment does not re DVI - PRIOR OFFENSES quire the suppression of evidence The question before the Court In Royalty V. Commonwealth Initially discovered during an Il this case was whether a screen blo 35 K,L.S. 6 at 7 legal search If that evidence is cking the defendant from the view May 13, 1988 later seized pursuant to a valid of two thirteen year old complain warrant Issued on wholly indepen ing witnesses in a sexual assault Royalty was arrested for and con dent grounds. The case represents case violated the defendant’s con victed of DUI in 1982. Subsequent another application of the "inde frontation rights. The Court held ly the following sequence of events pendent source" doctrine. See that it did. "We have never doubted took place: arrest ii, arrest Ill, Segura v. United States, 468 u.s. ...that the confrontation clause conviction of DUI on arrest Ill, 796 1984. JustIces Marshall, guarantees the defendant a face-to- convictIon of DIJI on arrest Ii. Un Stevens, and O’Connor dissented on face meeting with witnesses appear- der this sequence Royalty’s convic the grounds that the Court’s deci lug before the trier of fact." The tion based on arrest ii was for sion would encourage police who Court noted that there might be DUI, third offense, since at the have probable cause to obtain a exceptions to the requirement of time of conviction he had already search warrant to, in some situa face-to-face confrontation but been convicted of the charges based tions, engage In warrantless ex stated "islince there have been no on arrest Ill. However, Royalty ploratory searches to verIfy that a individualized findings that these contended that because the statute, search will be productive before particular witnesses needed special KRS 189A.O1O, speaks in terms of going to the bother of obtaining protection, the Judgment here could prior "offenses" the fact of his -.-----, - - p ii O.LJli& WAS RfCo*b LWE EF’E A CovE Drawing by Michael Macun. Reprinted with P.rlsslon. -15- conviction was irrelevant, end probation was revoked. Under these prosecutor argued to the Jury that since at the time of arrest II he facts, any error was harmless. a life sentence would be no dlf- had only one prior arrest he could ferent in effect than a twenty year only be convicted of DUI, second Kentucky Supreme sentence because Ruppee would in offense. The Court rejected this Court either case serve only ten years argument to hold that the relevant less credit for time served, In so event for triggering the enhance PRESERVATION OF arguing, the prosecutor "Misstated, ment provisions of the statute is a INSTRUCTIONAL ERRDR the law" since "Itihere Is no guar prior conviction. Duke v. Commonwealth antee that appellant will be parol 35 K.L.S. 6 *t 10 ed at this first eligibility date." PFO - PRIOR CONVICTION May 19, 1988 Hamilton v. Commonwealth The Court also found reversible er 35 K.L.S. 7 at 1 In this case the Court held that an ror in the trial of the underlying May 20, 1988 Instructional error was unpreserved robbery charge. The trial court where the defense objected on one excluded as hearsay defense evi The question in this case was whe- theory at trial but offered another dence that a police officer made ther a felony conviction, for which theory on appeal.- The Court cited comments to a store clerk which an anomoious sentence of one year the RCr 9.542 requirement of a were intended to obtain her posi or less in a county Jail Is imposed "specific objection.., stating spe tive identification of Ruppee. The pursuant to KRS 532.070, is a prior cifically the matter to which he Supreme Court held that the com felony for purposes of the PFO objects and the ground or grounds ments were not hearsay because they statute. The Court held that it of his objection." The Court’s de were not "offered to prove the was. This is consistent with the cision reverses a Court of Appeals truth of a statement but only to Court’s previous holding that a decision which held the error to be show that such a statement was sentence to probation or condition preserved. made." Justices Stephenson and Win- al discharge for a felony quaiifles tersheimer dissented. as a previous felony conviction un DOUBLE JEOPARDY - MISTRIAL der the statute, James v, Common Goodenough REBUTTAL LV IDENCE/HEARSAY/ wealth, Ky., 647 S.W.2d 794 1983. 35 K.L.S. 6 at 10 DOUBLE JEOPARDY/CLOSING ARGUMENT May 19, 1988 Wager v. Commonwealth PROBATION REVOCATION NOTICE 35 K.L.S. 6 at 14 Messer v. Commonwealth Gray sought a writ of prohibition May 19, 1988 35 K.L.S. 8 at 5 barring his retrial on double jeo June 10, 1987 pardy grounds. Gray argued that the The Court reversed Wager’s rape trial court abused its discretion conviction based on improper rebut The Court held In this case that In declaring a mistrial when the tal by the Commonwealth. The Com service of a motion to revoke pro jury indicated it could not reach a monwealth called in rebuttal a wit bation on Messer’s attorney, rather verdict. The jury foreman stated ness who testified that the defen than on Messer personally, did not twice during four hours of deliber dant had confessed to him in jail, result in a violation of Messer’s ation that the jury was hopelessly and had in particular told him that right to adequate notice. The Court deadlocked. No juror disagreed with he had injured the victim by biting stated: "We do agree that service this assessment. The Court held her finger. The Court noted its of the notice of intention to re that these facts justified the de previous holding In Gilbert v.Com- voke which Indicates the grounds claration of the mistrial. monwealth, Ky., 633 S.W.2d 69, 71 therefore is to be served upon the 1982 that "an admission of guilt party and not his attorney, espe PROSECUTOR COI’t4ENT ,,.should not be introduced in re cially if the representation by the ON PAROLE/HEARSAY buttal under the guise of contra attorney of record has been in a Ruppee v. Commonwealth dicting or Impeaching the defen different concluded litigation...." 35 .1.5. 6 at 13 dant. . . However, in Messer’s case, he and May 19, 1988 his attorney appeared at the revo The Court also found error in the cation proceeding with knowledge of Ruppee was convicted as a first de admission of hearsay testimony that the alleged grounds, and only com gree PFO. In hIs closing argument the victim, who died before triaI plained of inadequate notice after in favor of a life sentence, the of unrelated causes, had named the -16- defendant as her attacker. The truth-In-sentencing hearing under en the defendant and a third per Court reef fIrmed its rejection of KRS 532.0552 and the PFO proceed son, If similar to the acts charged the "residual hearsay" rule. See ing per KRS 532.080 are held." How and not too remote in time, are ad Estes v. Commonwealth, Ky., 744 ever, the Court refused to give missible to show intent, motive, or S.W.2d 421 1988. Hearsay was al Francis the benefit of this rule a common plan. The Court found that so admitted when the trial court since In its view he was not preju Anastasi’s prior acts fell within accepted a non-certified copy of a diced by the combined PFO and this rule. Chief Justice Stephens blood test report Introduced truth-In-sentencing hearing which and Justice Stephenson dissented. through a witness who was not the preceded the capital sentencing custodian of the document. phase in his case. Justices Leib- OUT-OF-COURT STATEMENT OF son and Lambert dissented on the NON-TESTIFY I MG CODEFENDANT grounds that evidence not admissi Dodson v. Commonwealth ble at a capital sentencing pro 35 X.I.S. B at 9 ceeding, such as parole eligibili June 30, 1988 ty, was thus placed before the jury. The Court reversed Dodson’s robbery convictions based on the admission OTHER UMES Into evidence of a non-testifying Anestas I v. Commonwealth codefendant’s confession which in 35 K.L.S. 8 at 9 criminated Dodson, The Court re June 30, 1988 jected the commonwealth’s argument that the confession was admissible In this case the Court rejected a as a statement against interest, argument that a noncomplalnlng wit Justices Wintersheimer and Stephen ness should not have been allowed son dissented. to testify at Anastasi’s trial for sexual abuse that the defendant had LInda West The Court rejected Wagers’ claim sodomized him eight years ago. In Assistant Public Advocate that his convictions of both second Pendleton v. Commonwealth, Ky., 685 Appellate Branch degree assault and first degree S.W.2d 549 1985 the Court held Frankfort, Kentucky 40601 rape was double jeopardy. The that evidence of sexual acts betwe- 502 564-8006 Court found that each offense included an element not included in the other. Final ly, the Court found error in the action of the commonweaith in performing a demonstration for the Jury during closing argument and in displaying to the Jury an item not In evidence. Justices Wintersheim- er and Gent dissented. CAPITAL SENTENCING PROCEEDING Francis v. Commonwealth 35 K.L.S. 7 at 9 June 9, 1988 in this case, the Court held that "I]n the future, in any case in which the death penalty is sought, the capital penalty sentencing phase pursuant to KRS 532.025 should be conducted before the -17- Post-Conviction Law and Comment Hank Eddy RR 11.42 CASES tacked on the basis the court not have to be appointed when the lacked Jurisdiction or where the record in the case refutes the mo- Chances are, if you represent indi defendant was convicted in viola ynt’s allegations. Hopewell v. gent people, you are familiar with tion of a statute such as to make Commonwealth, Ky. App., 687 S.W.2d RCr 11.42. Your competency as a the Judgment void. j v. Common 153 1985. defense attorney may even have been wealth, Ky., 506 S.W.2d 507 1974 questioned by virtue of a former and Tlpton v. Commonwealth, Ky., REQUEST FOR COUNSEL client filing such a motion, Due 376 S.W.2d 290 1963. to the law regardIng appointment of The trial court may not appoint counsel there is a good chance you BURDEN counsel In situations where the pro have been, or will be, appointed to se lItIgant does not make a proper represent a client either at the A heavy burden rests upon the çequest. In AlIen v,Commonwealth, circuit court level or on appeal of movant to overcome the regularity Ky, App., 668 S.W.2d 557 1984 the an RCr 11.42 motIon, of a conviction. Wahi v. Common Court ruled Allen was not entitled wealth, Ky., 396 S.W.2d 774 1965 to counsel because he requested The purpose of this article is to cert. denIed 384 U.S. 976. The counsel be appointed to represent discuss some ways to approach such movant must show a denial of a con him at an evidentiary hearing. an action when appointed. Also stitutional right which causes the Since an evidentiary hearing was discussed wII I be the procedural proceedings to be fundamentally un not necessary, counsel did not have requirements of the rule. Some fair. Schooleyv.Canmonwealth, Ky. to be appointed. Alien’s mistake strategic considerations will also App., 556 S.W.2d 912 1977 and was in not asking the court to be covered. Finally, there will be Smith v. Commonwealth, Ky., 412 appoint counsel to supplement his sane discussion regarding appro S.W.2d 256 1967 cert. denied 389 motion. Beechum v, Commonwealth, priate issues. U.S. 873. Obviously, you need a Ky., 657 S.W.2d 234 1983 Is real good issue to wIn an RCr 11.42 another case regarding the specific WHEN APPROPRIATELY FILED motion. Most trial errors will not nature of the request for counsel. afford RCr 11.42 relIef. The error Beechum was denied counsel because RCr 11.421 provides that a pri must be of such magnitude that the his request was not contained in soner may move the trial court by Judgment is voided. the body of his motion. He made collateral attack to vacate, set his request on his aft idavlt of aside or correct the sentence RiGHT TO COUNSEL indigency. The Court held this was imposed, As stated by the Court in not a sufficient request. The Commonwealth v. Wine, Ky., 694 Most of these proceedings are begun request for counsel must be in the A S.W.2d 689, 694 1985, "we con prose. KRS 31.110 and RCr 11.42 body of the motion, .. clude further that RCr 11.42 is 5 usual ly require that counsel be lItigant should ask that counsel be designed to permit a trial court an appointed. j v, Commonwealth, appoInted to supplement the motion opportunity after entry of judgment Ky., 599 S.W.2d 456 1980. Ap and for representation at an cvi- to review its judgment and sentence poIntment does not have to be made dentlary hearing. for constitutional invalidity of when the se motIon does not the proceedings prior to Judgment allege facts which, if true, would Generally speaking, however, coun or in the sentence and Judgment entitle the movant to relief, sel Is appointed. Once you have itself." The Judgment end sentence v. Commonwealth, Ky., 394 the case you should probably decide of the trial court may also be at- S.W.2d 893 1965. Counsel does whether or not to augment or sup- -18- plement the issues raised Se. tions, a persistent felony offender iNVESTitiTON in some instances, you may want to charge had been dropped. But after counsel your client to not pursue successfully attacking his guilty In order to facilitate your invest certain issues or to drop the whole plea, he was retried and convicted igation and ensure all relevant proceeding. of not only the principal offense issues are raised in the RCr 11.42 but also the status offense. Some motion, you must consult with the ELIGIBLE FOR RELIEF times it is better to forfeit the client, and you may want to consult game. trial defense counsel, the prosecu The first thing you might want to tor and the appellate counsel. check is whether or not your ci rent Another strategic consideration to These people may lead you to wit is eligible for relief. RCr 11.42 consider is the fact that the nesses you would need for the 1 requires the movant either be movant is not entitled to invoke evidentiary hearing. it is impera in custody, on probation, parole or the privilege against self incrimi tive to read the transcript of conditional discharge. Once a nation at the RCr 11.42 hearing. record and transcript of evidence sentence is completely served, it Reina v. United States, 364 U.S. if there was a trial. During your cannot be attacked by a RCr 11.42 507, 513, 81 S.Ct. 260, 264, 52 investigation and research you may motion. Wilson v. Commonwealth, L.Ed.2d 249 1960 and Mc9ueen v. find a good issue that has never Ky., 403 S.W.2d 710 1966. Commonwealth, Ky., 721 S.W.2d 694 been raised. 1986. Movant can be questioned VERlFiCPTlON about the crime because he has already been convicted. Also, if However, issues that could have Another procedural requirement is movant alleges his counsel was been, or should have been, raised verification. if this is not done, ineffective, the attorney/client on appeal cannot be brought In an the motion can be dismissed. RCr privilege is waived. Gall v. RCr 11.42 action. This motion Is 11.42 2. Any supplemented or Commonwealth, Ky., 702 S.W.2d 37 not a substitute for appeal. Bron- augmented motion should also be 1987 cert. denied 106 S.Ct. 3311. ston v. Commonwealth, Ky., 481 verified by the movant. Counsel should be cautious about S.W.2d 666 1972 and Thacker v. what the client verifies in the Commonwealth, Ky., 476 S.W.2d 838 DECISIONS motion, and, also, about whether or 1972. You may be moving into tro not he or she should testify at an ubled waters if you start to raise The requirement of verification evidentiary hearing. unpreserved errors. Fortunately, raises some strategical questions. some of the best Issues do not re For Instance, someone may think HEAR I PIG quire preservation such as double your client is lying if his or her jeopardy, Gunter v. Commonwealth, statements in the motion are con Regarding the hearing - Are you en Ky., 576 S.W.2d 518 1978 !iu trary to what he or she said at titled to one? RCr 11.42 5 pro denied, 443 U.S. 905 1979 and trial, if there is any variance vides for a prompt hearing when a sentencing errors, Weilman v.Com- between the record and what is said material issue of fact which cannot monwealth, Ky., 694 S.W.2d 696 in the motion, you may want to be determined from the face of the C 1985. advise your client to amend or record exists. There is no require dismiss the motion. Otherwise, the ment for a hearing when the allega statutory prohibitions against tions can be refuted by the record, SUCCESSIVE MOTIONS perjury and false swearing may come and when the petition does not into play. state grounds upon which relief can It is Important to raise all merit be grantei. Trice v. Commonwealth, orious Issues In the motion because Another reason you may want to Ky.App., 632 S.W.2d 459 1982. successive actions are usually bar advise your client to dismiss even Cases which discuss the expeditious red. Kinnon v. Commonwealth, Ky., a meritorious claim is the fact nature of a motion to vacate sen 396 S.W.2d 331 1965. To get a se that the movant may be exposed to tence and the requirement for a cond shot in an RCr 11.42 proceed greater punishment if successful. prompt hearing include: Moore v. ing, the movant wouid have to show in a recent unpublished decision, a Pound, Ky., 390 S.W.2d 159 1965; why he could not have raised the movant was successful in having a WahI v. Simpson, Ky., 385 S.W.2d issue In the first motion. Other guilty plea sentence vacated. 171 1964 and Helton v. Stivers, cases discussing successive motion During the original pica negotia- Ky., 385 S.W.2d 172 1964. are Crick v. Commonwealth, Ky., 550 -19- ______ S.W,2d 534 1977 and Case v, GOOD ISSUES post-conviction action such as: Commonwealth, Ky., 467 S.W.2d 367 errors in instructions, Boles v. 1971. 1 Ineffective assistanc. of coun Commonwealth, Ky., 406 S.W.2d 853 sel, for test see Strictland v. 1966; defects In the indictment, WITRAWAL WashIngton, 466 U.S. 668, 104 S.Ct. Warner v. Commonwealth, Ky., 385 2052, 80 L.Ed.2d 674 1980 and S.W.2d 77 1964; insufficiency of What happens if you are appointed Gail v. Commonwealth, Ky., 720 the evidence of illegal arrest, and cannot find any good issues, S.W.2d 37 1985, cert. denied 106 Johnson v, Commonwealth, Ky., 473 or, after you review the Issues In S.Ct. 3311. For test regarding S,W.2d 823 1971 and unlawful the pro se motion, you determine guilty pleas see Hill v. Lockhart, searches and seizures, Dupln v. they are without merit? Then a 474 U.S. 52, 106 S.Ct. 366, 88 Commonwealth, Ky., 404 S.W.2d 280 motion filed pursuant to KRS 31.115 L,Ed.2d 203 1985. 2 Sentencing 1966. Also persistent feions who and KRS 31.11O2c to withdraw as issues, see KRS 532,1101c, See fail to attack prior convictions counsel would be appropriate. KRS v, Commonwealth, Ky., S.W.2d before their status proceeding are 31,1102c provides that if coun rendered March 3, 1988 and precluded from attacking the prior sel and the court involved deter Wellman v. Commonwealth, Ky., 694 convictions in a subsequent post- mine this is not a proceeding a S.W.2d 696 1985. 3 Issues re conviction action. Alvey v.0cm- reasonable person with means would garding guilty pleas, see Boykin v. monweaith, Ky., 648 S.W.2d 858 bring, then there is no further Alabama, 395 U.S. 238, 89 S.C1. 1983. Some issues that are not right to represintat ion. 1709, 23 L.Ed.2d 274 1969, Sparks presently proper for relief may v. Commonwealth, Ky. App,, 721 have to be raised to exhaust for In Pennsylvania v. Finley, - S.W.2d 726 1986 and Quarles v. federal purposes. Also, even U.S. -, 107 S.Ct. 1990, 95 Commonwealth, Ky., 456 S.W.2d 693 though these issues have not been L.Ed.2d 539 1987 appointed coun 1970. 4 PerJured testimony, good In the past, It does not mean sel moved to withdraw after review see Williams v. Commonwealth, 569 they should automatically be dIs ing the trial record and consulting S.W.2d 139 1978. 5 False and carded. Given some good facts and with his client. The Court held Incompetent evidence, see Jennings a miscarriage of Justice, you may the United States Constitution does v. Commonwealth, Ky., 380 S.W.2d find a court that will change the not require Anders procedures be 284 1964. 6 Lack of Jurisdic I aw. applied to post-conviction proceed tion, see McMurray v. Commonwealth, ings; therefore, Finley was not Ky. App., 682 S.W.2d 794 1985. IONCLUS ION denied counsel by her attorney’s motIon to withdraw. RCr 11.42 Is used extensively to attack sentences. Procedural rules if you file a motion to withdraw, and decisions limiting the avail you may feel more comfortable if ability of post conviction relief you strictly follow the procedures make it difficult to win an RCr set out in Anders. Another alter 11.42 proceeding. However, the native is to move the court to make rule does supply a state remedy to its ruling based solely on the cure a miscarriage of Justice. issues raised In the pro se motion. Every approach requires that you Hank Eddy thoroughly search for Issues which Assistant Public Advocate have merit. Director, Post-Conviction Office 260 Commerce Street RELIEF P.O. Box 50 Eddyville, Kentucky 42038 If you do proceed with the case, 502 388-9755 and your client is entitled to re lief, the court, pursuant to RCr 11.42 6, may discharge, resen- BAD ISSUES H..,To no ens will we refuse or tence, order a new trial or correct delay right or Just Ice" the sentence, Either side may There are certain issues that cur appeal. RCr 11.42 7. rently are not good In this type of Magna Carte CH.401215 -20- DeathPenaltyThe Neal Walker The summer of 1988 has ushered in a dence of guilt and regardless of Recognizing the evidence proved a number of momentous developments in how revolting the murder, even the "particularly vicious and shocking the administration of the death most unpopular capital defendant Is premeditated murder," the Court be penalty on the national and local entitled to a fair trial conducted lieved that "the death penalty was fronts. The summer’s drought may be In an atmosphere free from the cor Justified" IS at 1. Nevertheless, killing the crops in the field, but rosive pressures of an outraged an accused "has certain minimum the gnarley old oak of capital pun community, by an unbiased Jury in guarantees to a fair trial and due ishment stubbornly grows on. Its stead of one predisposed to vote process, constitutionally mandated, branches continue to support the for the death penalty. drawing the line between law and hangmans noose; on June 14, Edward lynching, which apply regardless of Byrne In Louisiana became the 100th I. SANBORN V. COMNONWEALTH the revolting circumstances of the person to be executed in the United "DRAWING THE LINE offense." Id. States since the restoration of BETWEEN LAW AND LYNCHING" capital punishment in 1976. A. CONTINUANCE/CHANGE OF VENUE Sanborn’s death sentence stemmed The United States Supreme Court has from his conviction in the Henry Preliminarily, the Court summarily again devoted much attention to the County Circuit Court for murder, addresses two issues "which are death penalty, unloading a number rape, sodomy and kidnapping, A five unlikely to recur" at a retrial IS of decisions1 in June. While seve member majority reverses with Jus at 21, The trial court was ral decisions are favorable, it has tices Vance and Gant concurring in criticized because "the case was been the Kentucky Supreme Court result only. Predictably, Justices tried less than 3-1/2 months from which has been most active this Wintersheimer and Stephenson dis the date of the occurrence, despite summer in pruning the excesses of sent, its complexity" Id. And, "because the hanging trie. the trial court refused a change of The v3tJ car was found at the venue, trial was held precipitately RETR IALS ORDERED FOR end of the family’s driveway "sur in a small community where the TWO CONDEMNED PRISONERS rounded by evidence of a vicious hideous details were still vivid in attack," Sanborn v. Commonwealth, the minds of the veniremen" Id. And what Is so rare as a day In - S.W.2d - Ky. 1988 IS at 31. June? Some time later and several miles B. PROSECUTOR IAL MISCONDUCT Then, if ever, cone perfect days. away, her body, partially nude, was James Russell Loveji 1884 discovered. The cause of death was Sanborn’s conviction was reversed multiple stab wounds several were "for trial error willfully engaged And so it was on June 8, 1988 for diagnosed as post-mortem, There in by the prosecutor, and inexcus two prisoners on Kentucky’s death was medical evidence of vaginal ably tolerated by the trial Judge" row, Parramore Sanborn and Fred penetration and oral sodomy. San- IS at 21. Grooms, beneficiaries of stunning born, a disgruntled farm hand for decisions by the Kentucky Supreme merly employed by the victim and 1. INTENTIONAL DESTRUCTION OF TAPED Court ordering retrials in both her husband, was arrested at his WITNESS STATEMENTS cases. Read together, the cases home after he invited the police stand as a warning to prosecutors inside as they canvassed the neigh After the defense moved for produc and a reminder to trial Judges: re borhood. Blood and fiber evidence tion of tape recorded statements of gardless of how formidable the evi- connected him to the victim. 4 prosecution witnesses, the prose- -21- cutor, who was aware of the court’s judicial error to enhance the in the nonhearsay use of "verbal act" policy to order disclosure of such audible or unintelligible portions evidence. evidence two weeks before trial, of the defendant’s statement with stated on the record that he had the Commonwealth’s written version, D. CUMULATIVE ERRORS erased the tapes "in anticipation and the error was exacerbated by of the court’s ruling" IS at 61. On being highlighted with a yellow The Court identif led dozens of er appeal, he claimed a right to de marker" IS at 91. rors which, while insufficient to stroy the tapes. The Court rejected support reversal independently ei it. "The claim Is specious, and his At oral argument the prosecutor ther because not sufficiently seri tactics unforgivable"2 IS at 61. tried to pass it off as an official ous or not preserved, collectively transcript, mightily upsetting the mandate a new trial. The tapes were discoverable under Court. "The Commonwealth Attorney RCr 7.261, and it was a violation was in violation of his duties as While acknowledging KRS 532,075a of due process to destroy them, Im an officer of this Court when he mandates that the Court consider portantly, the court expands the represented to us at oral argument "any errors enumerated by way of Bradyv.Maryland, 373 US 83 1963 that this was a transcript prepared appeal" In death cases, the Court definition of exculpatory evidence by the trial court" IS at 101. continues to invoke the limited to include not only evidence which contemporaneous objection rule used would be exculpatory, but that C. ThE DEATh OF in Ice v. Commonwealth, Ky., 667 which might be. Moreover, "preju INVESTIGATIVE HEARSAY S,W.2d 671, 674 1984, under which dice is presumed where the prose it will refuse to address an as cutor destroys evidence" IS at 71. The final error which would inde signment of error where "it may pendently support reversal concern reasonably be inf erred" that the Since the witnesses were not essen ed "the extensive use of testimony failure to object was a deliberate tial to the state’s case, and since from 3 different police officers trial tactic. Admitting that divin the relief requested was not dis repeating what was told them by ing from a cold record why no ob missal or exclusion, the Court re persons whom they Interviewed dur jection was made often presents an versed with directions to give the ing the course of their investiga "imponderable problem," the Court missing evidence instruction as re tion" IS at 101. FInally, the Court declared that the collective effect quested by the defense. has buried the archaic "investiga of the errors supported reversal tive" exception to the hearsay "eliminating the need to quibble 2. USE OF PROSECUTION TRANSCRIPT OF rule.3 "Perhaps it would help to over individual questions of pre DEFENDANT’S TAPED STATEMENT state forcefully at the outset that servation" IS at 131. hearsay is no less hearsay because After his arrest,. the police taped a police officer supplies the evi 1. "A LAUNDRY LIST OF MISCONDUCT" statement. At trial, over dence" S at 101. Sanborn’s trial objection, the prosecutor furnished was infested with this sort of The Court identif ied 3 categories his transcription of this statement hearsay. For example, in an attempt of prosecution misconduct in addi to the jury. There were at least 25 to rebut 5nofls statement to the tion to the primary errors already instances where the defense disa authorities that two unnamed bro addressed which, as a "laundry greed with the transcript. For in thers were responsible for the vic list of misconduct", supports re stance, at one point the prosecu tim’s death, a police officer "was versal IS at 131. tor’s transcript quotes the defen permitted to summarize Information dant as saying he was "wrong" while from interviews with some 40 or 50 a. EMPHASIS ON VICTIM’S POPULARITY the official court reporter’s tran persons" that the two brothers did AND GOOD CHARACTER script, made while listening to the not exist IS at 121, tape as It was played in the court Much of the prosecution’s case con room, quotes the defendant as say The Court issued a strong warning sisted of "a parade of family mem ing he was "drunk." against the admission of such unre bers utilized as witnesses primari liable evidence: "Ipirosecutors ly to elicit sympathy for the vic To complicate things, the trial should, once and for all, abandon tim" IS at 141. The victim was por court highlighted the prosecutor’s the term ‘Investigative hearsay as trayed as a "mother, wife and home version of the questionable remarks a misnomer, an oxymoron" IS at 111. maker" who was an "energetic, at- with a yellow marker. "It was pre- The Court did, however, distinguish tractive end beautiful former Miss -22- Henry County" IS at 151. Grieving the victIm or the impact of the the "most serious misstatement" family members introduced articles crime on the victim’s famIly. concerned the prosecutor’s penalty of the victim’s clothing and photo summation, where he argued that the graphs of her decorating a wedding b. ATTACKS ON DEFENSE COUNSEL, Jury had a "duty" to pronounce cake. All of this was followed by a DEFENSE WIThESSES, AND DEFENDANT death if an aggravating circum closing argument where the prosecu stance was found IS at 201. tor recited favorite Although many comments were outside poem" and called attention to the the jurys presence, the Court con 2. RESTRICTIONS ON devastating impact on the family. demned the prosecutor’s effort to CROSS-EXAM TO EXPOSE BIAS ridicule and intimIdate defense The Court’s current unwillingness counsel. These attacks, including a a. The defense sought to impeach a to permit the determination of pun threat to "ram it down your damn key prosecution witness, who didn’t ishment in capital cases to turn on throat", extended to the defendant come forward until after the trial the victim’s character or popular and his witnesses IS at Ill. Ques started, "by proving his motive was ity is complicated by the hole it tioning a defense expert about his because he thought ISanbornl guilty dug for itself in McQueen v.Com- fee, the prosecutor asked, "And and wanted to assist in proving it" nonwealth, Ky., 669 S.W.2d 519, 523 that’s what you want the court to IS at 213. The trial court halted a 1984, where it described a simi direct Henry County to pay you?" IS lIne of cross-examination designed lar challenge to the admission of at 181. Later, the prosecutor re to expose this bias. This was er such evidence as "total ly offensive ferred to the "trick they pulled ror since "Itihe credibility of a to the Court", Nevertheless, the with that psychiatrist", and accus relevant testimony is al Court boldly embraces the "princi ed the defendant of hiding behind ways at issue, and the trial court ple that conviction and punishment fendant of hiding behind "secret may not exclude evidence that im are not contingent on who was the defenses" IS at 18, 191. peaches credibility even though victim" IS at 151. This concept, such testimony would be Inadmiss "difficult,..to explain to the pub ible to prove a substantive issue lic in the present climate of vic In the case" IS at 211. tim’s advocacy" is nevertheless "fundamental to our American system b. The trial court also refused to of Justice and cannot be Ignored in allow the defense to develop on individual cases" IS at 151. cross-examination that a prosecu tion witness was on misdemeanor probation. The trial court appar The Court has no hesitancy in hold ently confused impeachment by re ing that the rule was violated in vealing bias with impeachment by this case, although it can’t quite exposing a crIminal conviction, and bring itself to overrule McQueen, refused to allow cross-examination and continues to believe that "a since the conviction was not for a certain amount of background evi felony. This was error under Davis dence regarding the victim is rele v.Alaska, 415 U.S. 308 1974. vant to understanding the nature of the crime" S at 141. Recognizing 3. JURY ISSUES the tension between competing in The defendant himself was charac a. FAILURE TO RECORD terests, the Court retreats to the terized as a "monster", a "wolf", a REASONS FOR HARDSHIP comfort of a probative/prejudicial "black dog of a night." This was EXCUSALS OF PROSPECTIVE JURORS balancing test. highly improper since "Itihere is no place in argument for scurrilous The trial court was faulted for Conspicuously absent from the and degrading terminology" IS at failing to comply with KRS 29A.0130, analysis is any reference 201. and 29A.1002 which mandate to the Supreme Court’s watershed recording the reasons for hardship decision in Booth V. Maryland, 107 C. MISSTATEMENTS OF LAW excusals on the Jury qualifIcation S.Ct. 2529 1987, whIch held that forms. Even though the court later the 8th Amendment forbids the in In argument, the prosecutor improp gave reasons as to why the Jurors troduction of character evidence of erly defined reasonable doubt, but were excused, "this subsequent ex- -23- planatlon is no substitute for con- Juror Snider’s wife was the first door to the storm of evidence whIch temporaneous compliance with the cousin of the Sheriff, a crucial followed" S at 281. statutory rules" IS at 291. prosecutIon witness. DurIng voir dire, Snider stated that he would 5. EX PARTE CONTACTS b. ALLOWING PROSPECTIVE JURORS TO "have to lean towards whet the BETWEEN JUDGE AND PROSECUTOR STUDY LIST OF VOIR DIRE QUESTIONS Sheriff might say" IS at 251. He "should have been excused for A "gross breach of the appearance Before commencing individual voir cause, but was not" tld.1.5 of justIce" occurred where, during dire, the trial Judge read to the the penalty phase, the trial court entire panel the questions to be While It is ordinarily a matter of granted an ex parte order for an asked during individual voir dire, discretion as to whether to excuse order compelling the attendance of and then provided the venirepersons a first cousin by affinIty, here defendant’s wife as a witness. Once with a list of the questions. This there were "further answers showing the trial commences, "every order procedure violated the efenants a probability of bias toward the rquostd of 1t,s court is a matter right to be present at every stage testimony" IS at 251. to be addressed in the presmac. of of the trial, including jury opposing counsel" IS at 301 em selection. RCr 8.28. Finally, Snider should not have re phasis in origi nail. mained on the jury after being in Furthermore, the procedure devalued formed, during penalty delibera "the critical importance of visual tion, of hIs father’s unexpected ly observing prospective jurors death. whIle they are formulating answers to voir dire questions "IS at 231. 13. The Sheriff as Jury Custodian: a "psychologically intimIdating force" c. CALDWELL ERROR: EMPHASIS ON VERDICT AS RECOIIIENDATION "As is often the case with a mis take of this nature, subsequent e- The Court was presented with the vents compounded the problem" S at chronic problem of prosecutorial 261. Here the sherIff, an important suggestions that the Jury’s verdict witness, was put In charge of the would only be a recommendation, Jury when it was sequestered. C. ThEORY OF DEFENSE INSTRUCTIONS Acknowledging the holding in Cald- wellv. Mississippi, 472 U.S. 320 This was a violation of the prInci The Court addressed several claims 1985 that the 8th Amendment for ple of separation of witnesses. concerning instructions about the bids minimizing the responsibility Turner v. Louisiana, 379 U.S. 466 theory of defense to of the Jury in assessing the death 1965. Under these facts, the avoid error on retrial. penalty, the Court nevertheless sheriff was a "psychologIcally in finds that Caldwell’s mandate "is timidating force" on the jury IS at The primary theory of defense was not ironclad, and use of the word 141. that the rape occurred post-mortem. is not per se revers If belIeved, this theory would have Ible error" IS at 4, PENALTY PHASE REBUTTAL negated convictions for the of fens- es being used as aggravating cir- Ducking the issue since a retrial On the "pretext" of rebuttl ng a cumsta nces, was being ordered, the prosecutor’s "casual comment by a defense wit comments were described as border ness" suggesting that Sanborn was a The trial Judge refused to charge line, especially when considered "peace lover", the prosecution cal on the crime of abuse of a corpse, with the Court’s voir dire ques led his wife and step-daughter, On retrial, the instruction should tIons and Instructions, presenting inflammatory evidence of be given if supported by the evi uncharged crImes Including rape and dence. While the defense theory di d. ThE SHERIFF: KEY WITNESS, FIRST assault IS at 281. This was highly verged from the defendant’s pre COUSIN TO ThE VICTIM AND JUROR Improper rebuttal. The defense wit trial denial of participatIon in SNIDER, CUSTODIAN OF ThE JURY ness made a brief and unresponsive the kIllIng, the trial court must I. The Sheriff & Juror Snider comment which "did not open the submit Instructions on the various -24- alternatives when a Jury could come but leaves the attempted murder While not going so far as to hold to any of several conclusions. Pace conviction standing. Concurring and that counsel had "an absolute v. Commonwealth, Ky., 561 S.W.2d dissenting in part, Stephens, Lam- right" to direct questioning, the 664, 667 1978. bert and Leibson would reverse both Court squarely held that, upon re convictions. Once again, Stephenson quest, "Inquiry should be made Into and Wintersheimer dissent and would the extent of knowledge possessed have Grooms executed. by prospectIve Jurors about the case and the source of that know A. CHANGE OF VENUE ledge" IS at 51. The controlling opinion finds no a- buse of discretion, even though the 2. RIGHT TO INDIVIDIML case was "tried in the county where SEQUESTERED VO IR DIRE ON PUBL IC &TY the prison is located, where many of the prospective jurors had some Acknowledging that inquiry in the knowledge of the case, and when a presence of other Jurors as to what substantial number of them worked a von Ireperson knows about the case at the penitentiary or had rela poses the danger of polluting the tIves or friends who worked there" panel, the Court ruled that the Grooms v. Commonwealth, Ky., - "better procedure" Is to question S.W. 1988 15 at 131. The Court jurors independently in a seques also acknowledged that a public tered fashion. opInion poll showed 98% of the res pondents as having some knowledge 3, REVERSE WIThERSPOON: THE II * GROOMS COIONWEALTh of the case. All but 4 of the 28 RIGHT TO PURGE ThE JURY OF KILLERS COMPASSION IS ThE LAW prospective Jurors indicated some knowledge of the case during selec For the first time in its history, Grooms, a "somewhat mental ly retar tIon, Furthermore, "the record here the Court held that the trial court ded" black Inmate, was sentenced to substantiates that there was a erred In falling to grant a causal death for the murder of Patricia great deal of pretrial publicity challenge to a Juror who would au Ross, a penitentiary employee. KRS concerning this case" IS at 41. tomatIcally vote for the death pen 532,0252a5. He was also con This issue failed to persuade the alty upon a conviction for Inten victed of attempted murder of fel Court, but relief was forthcoming tional murder, regardless of how low inmate Larry Lehner. Groms on a related matter, compelling the case for mitigation. evidence established that he and the deceased worked together in In so doing, the Court restates the harmony, that fellow convicts mer B. JURY ISSUES standard for death or life quali cilessly teased him that Ross, whom 1, RIGHT TO ASK JURORS WHAT fIcation In Kentucky, drawing not he was infatuated with, was having THEY KNOW ABOUT HIGHPUBLICI1Y CASE from Wainwright v. Witt, 469 U.S. a relationship with another man, 810 1985, but rather from Wither- and that Grooms was taunted into an "The exclusion of any questions as spoon v. IllInois, 391 U.S. 510 uncontrollable rage resulting in to the extent of the knowledge a- 1968: "the Commonwealth is enti Ross’ death and Lehner’s assault. bout the case possessed by the pro tled to have excused for cause a The prosecution theory suggested spective Jurors and the inability person who has such conscientIous that Grooms lured the victim into a to learn what they had heard about objection to the death penalty that stockroom with the intent to have it and from whom they had heard It, he would never, in any case, no sex but, upon being rebuffed, deli kept from the trIal judge informa matter how aggravated the circum berately killed the victim and at tion important to the determination stance, vote to impose the death tempted to kill an inmate who hap of whether a challenge for cause to penalty. Conversely, a juror should pened upon the scene. a particular Juror should have been be excused for cause If he would be sustained and kept from counsel in unable in any case, no matter how A five member plurality Gent, Ste formation important to the determi extenuating the circumstances may phens, Vance, Leibson, Lambert or nation of which Jurors should be be, to consider the ImpositIon of ders a retrial on the murder charge peremptorily challenged" 15 at 41. the minimum penalty" IG at ill. -25- Here, Juror Veech made it "abund- ments" IS at 151. Plus, Grooms had F. JUROR’S USE OF BIBLE antly clear" that he favored the confessed, so the prosecution "had death penalty to the exclusion of no reason to suspect that the blood On retrial, the court is instructed all other penalties as punishment samples would in any way exculpate not to allow Jurors to take Bibles for intentional murder. In Veech’s him" IG at 151. Into the Jury room, as happened at view "Imlitigating circumstances or the first trial. compassion would have nothing to do with it" IS at 11-121 emphasis D. CONFESSION ISSUES S. THE ATTEMPTED *IRDER CONVICTION added 1. The court’s reference to compassion should not go unnoticed. The Court rejected a host of chal Although the murder conviction was Regardless of how aggravated the lenges to the admission of 5om5 reversed, the Court refused to dis killing, a Juror must be able to confessIon, His claim that his wai turb Grooms’ conviction for at consider granting mercy if he or ver was not voluntary due to his tempted murder of inmate Lehner. she has compassion, or feels sorry low 1.9. was summarily rejected. It for the defendant. was of no import that the fIrst H, THE CHIEF JUSTICE’S CONCURRENCE: confession was not preceded by Mir "FRED GROOMS DID The trial court denied Grooms’ anda warnings since it was not NOT GET A FAIR TRIAL" challenge for cause, and he was used. Further, the Court held that forced to use a *peremptory chal Grooms was not a suspect. Pt subse In a powerful concurring opinion lenge on Veech, thereby preventing quent Mlrandized confession was not joined by Justices Lelbson and Lam- him from using a peremptory chal "fruit of the poisonous tree". Ore- bert, Chief Justice Stephens con lenge on other jurors whom he de v.Elstad, 470 U.S. 298 1988. curs with the reversal of the mur sired to excuse for cause. Citing der conviction but dissents from Rigsby v. Commonwealth, Ky., 495 the portion of the majority opinion S.W.2d 795 1973, the Court holds Finally, Grooms’ confession was not which upholds the attempted murder that it is reversible error "in a rendered involuntary even though he conviction. case where the defendant has elect was advised incorrectly by the in ed to use a peremptory challenge to vestigating officer that the death 1. VENUE excuse that Juror and it later de penalty was not a possIbIlity un velops that the defendant is pre less Lehner died from hIs injuries. The Chief Justice would reverse on vented thereby from exercising a this issue and direct that retrial peremptory challenge to another ju be conducted in "a venue where a ror whom he desires to challenge" E. INSTRUCTIONS fair trial can occur." Stephens, IG at 51. "This is true because a 1. NO INFERENCE INSTRUCTION C. J., concurring and dissenting defendant should not be required to ICJ at 31. Referring to the public waste his peremptory challenges on The mere tendering of a "no infer opinion poll, the Chief Justice Jurors who should have been excused ence" instructIon is not sufficIent notes that only 54% of the citizens for cause" Id. Here it was apparent to preserve the issue. There must believed that Grooms could get a that Groans would have exercised a be a specific objection on the re fair trial, "To permit a trial In peremptory on at least one of the cord to the failure to give the such a location is similar to play other Jurors he unsuccessful ly cha- instruction. RCr 9.542, ing Russian roulette with 46% of I longed for cause, and who sat on the gun’s chamber being loaded. Is the jury.6 2. VERDICT AS RECOI44ENDATION that a fair trial? Is that due pro- cess of law? ICJ at 31. C. DESTRUCTION OF EVIDENCE In an important ruling, the Court held that, at least In cases where 2, RIGHT TO INDIVIDUAL The Court finds no error in the capital offenses where the Jury SEQUESTERED YO IR DIRE "routine destruction" of blood sam "recommends" the penalty are join ples by the state laboratory 10 ed with non-capItal offenses where The Chief Justice believes that the days after the trial court ordered the jury "fixes" the punishment, trial court should be directed to the preservation of all serological "the instructions on the penalty permit Individual voIr dire on the evidence. There was "no indIcation phase should require the Jury to Issue of publicity at the retrial. It was done In a calculated effort fix the punishment" S at 211 "It would only have taken a little to circumvent disclosure require- emphasis eddedi, more time, and when an au$5 -26- life Is at stake,, that time is a ing, an affidavit was filed indi 1These decisions, none of which small price to pay" Ci at 41. cating that the Jury had consulted will have a systemic Impact in Chapter 35, Verse 16 of the Book of Kentucky, will be assayed In the 3. JURY QUALIFICATION Numbers while deliberating on next edition of The Advocate. Grooms’ fate. The scripture reads: The Chief Justice criticized the "And if he smites him wIth an in 2The prosecutor, Bruce Hamilton, ma,Jorlty for reversing due to the strument of iron, so that he dies, appeared unrepentant In an inter improper ruling on only 1 juror. In he is a murderer: the murderer view the next day in the Louisville fact, the trial court also should shall Couriersurely be put to death" ICJ Journal when he stated that have excused "8 persons who had a at 81. ThIs was obvious jury mIs "four of the seven [Justicesi were close relationship with the vic conduct. NeCamp v. Commonwealth, n’t too upset," an apparent refer tim’s family or with Kentucky State Ky., 225 S.W.2d 109 1949. ence to the fact that Gant and Prison employees". Indeed, "the Vance concurred only in the result. trial court seemed almost oblivious 1, WINTERSHEIMER’S DISSENT of his duty to see that a fair and 3me federal courts condemned the Impartial jury should be selected Recognizing that the case is to be Kentucky hearsay exception over a In this case" ICJ at 51. reversed, Justice Wintersheimer, decade ago. Stewart v. Cowan, 528 joined by Justice Stephenson, fIles F.2d 79 1976. Also, the trial court should not a handwringlng opinion dissenting have summarily excused 41 Jurors, from the reversal, arguing that 4mIs Is a questionable interpreta without notice. Even the trial "the infinItely better practice tion of Caldwell, which allows for judge’s own notes showed 11% of the would be to permit unlimited per no harmless error analysis. jurors were excused without good emptory challenges to avoid the cause. KRS 29A.070. situation that has arisen in this 5The Court found it questionable case" Grooms Wlntersheimer, J. whether this Issue was preserved 4. JUROR’S USE OF BIBLE dissenting and concurring, p. 3. since It was first raised In a new trial motion. Another ground for reversal was the juror’s use of the Bible during the NEAL WALKER 6Recently, in Ross v. Oklahoma, penalty phase deliberations. Grooms Assistant Public Advocate U.S. - decided June 22, 1988, was convicted of bludgeoning the Major Litigation Section the Supreme Court ruled that the victim to death with an industrial Frankfort, KY 40601 trial court’s failure to remove a can opener. At a post-trial hear- 502 564-8006 juror who, like Veech, declared that he would automatically vote for the death penalty, was not re versible error since the juror was Executive Director and Staff Attorneys Georgia Appellate Resource Center removed with a peremptory chal lenge. However, there was no The Georgia Appellate Practice and Educational Resource Center seeks an Executive Director and showing In Ross that the lost per three staff attorneys to bring into existence a new project to respond to the critical unmet legal needs of Georgia’s death-row population. The organization will be located within the facilities of Georgia emptory Impeded the defendant’s State University College of Law in downtown Atlanta and will have a clinical education program in who conjunction with that school. The project will begin operations on July 1, 1988. ability to strike other jurors The Center will be responsible for coordinating legal representation for all of those under sentence of were unsuccessful ly challenged for death in both state and federal post-conviction proceedings. The Center will provide direct represen cause. Furthermore, Oklahoma speci tation in some capital cases, but in most cases will serve as a backup organization with the responsibil ities of recruiting, and providing materials and expert assistance to private counsel. The Center will fically requires defendants to use also offer training in capital litigation. peremptories to cure erroneous re Applicants for Director should have at least four years experience in criminal and/or appellate law fusals to excuse cause. capital litigation experience preferred. All Applicants must be members of the Georgia Bar or be jurors for willing to take the Bar exam at the earliest opportunity. Good writing and management skills are es But In Kentucky "a defendant should sential. Salary range is $40,000 to $44,000 for Director and $32,000 to $38,000 for Staff Attorneys. Applications from minority attorneys and women are encouraged. Recent law school graduates are not be required to waste his per also encouraged to apply. emptory challenges on jurors who Respond, with resume and writing sample, to: Stephen Kirtnard should have been excused for cause" rio Hansell & Post 3300 First Atlanta Tower S at 51. The Interplay of Grooms Atlanta, GA 30383 addressed in 404 581-8469 and Ross will be greater depth in the next Advocate. -27- CircuitHighlights,6th Donna Boyce Jeopardy men Deublewere dressed In identical, in was no evidence that jury commIs stitutional unIforms and standing sioners used a particular system or The prosecutors failure to re In front of sign that said "Cincin procedure in order to exclude wo quest, and the judge’s failure to nati Police Department." The Court men. The Court agreed with Ford give, instructions on the only stated that the men looked as If that in conducting a Jury analysis theory of lIability supported by they had answered a casting call It is proper to compare the percen the evidence bars a retrIal on that for the role of a thug In a televi tage of a particular group in the theory. Saylor v. CornelIus, - sion police drama except that their Jury pools to the percentage in the rather than that In the F.2d -, 17 SCR 10, 21, 43 Cr.L. unhappy faces Indicated their pre population 2186 6th Clr. 1988. Saylor was sence in the lineup was not volun voter’s registration lists. The indicted for murder as a principal tary. Because the photos suggest Court also rejected the state’s and accomplice, and murder by con McCoy is a "bad guy" who belongs in argument that Jury samples over a spiracy. Despite the lack of evi Jail, a juror could be Influenced two year period do not cover a sig dence of a conspiracy, the judge Irrationally to conclude he is nifIcant enough portion of time. instructed on the murder count only guilty of the charged offense, The on the theory of Saylor’s liability court found that in contrast to its Ford also raised due process and as a conspirator. The prosecutor prejudicial nature, the photograph equal protection challenges to the did not object or request Instruc ic evidence had no probative value underrepresentat ion of women end tions on any other theory of lia in that It was offered to show that young adults from the Scott County bility. The Sixth Circuit found lineup was not unduly suggestive Jury commissions. With respect to that due to the prosecutor’s acqui even though McCoy had not chal the due process claim, the Court escence in the Instructions given, lenged the fairness of the lineup. found young adults were not a cog- the prosecutor should bear the bur The Court found the error to be nizable group and that there was no den of the aborted outcome, The harmless because McCoy was acquit testimony from the judge or evi Court saw no reason why the prose ted of the charge that the photo dence that he had systematically cutor should be allowed to try graph related to. excluded women from jury commis Saylor again merely because it did sions, The Court concluded Ford had not realize durIng trial that the CompositionChallenges no standing to raise an equal pro only theory of liability estab tection claim because he was nei lished by the evidence had not been In Ford v, Seabold, F.2d , ther a women nor a young adult. charged to the jury. The Court re 17 SCR 6, 8 6th CIr. 1988, a jected the position of the Kentucky Sixth Circuit panel addressed its Additionally, Ford made due process Supreme Court that SayIor could be first major jury composition chal and equal protection challenges to retried because this was merely an lenge case. Ford first raised a the exclusion of women, young instructional error. fair-cross section challenge to the adults, students and nonwhites from jury pool from which his petit jury the Franklin County Jury commis Photograph wasLineupselected in Scott County. The sions and the jury pools from which Court found that young adults and the grand Jurors who Indicted him In UnitedStates v, McCoy, - F .2d college students were not cogni- were selected, Despite acknowledg authority to the -, 17 S 12, 4 6th Cir. 1988, zable groups and declined to decide ing considerable the Sixth Circuit found erroneous if the large absolute disparity of contrary, the Court held that a due the admission of a photograph of a women In the jury pools and popula process claim cannot be raised In a lineup including McCoy where the tion was unreasonable because there challenge to the composition of the -28- grand juries or jury commissions. The Sixth CircuitRevocation specifically re Hearings With respect to his equal protec versed that part of the district tion challenge to the composItion court’s judgment which found that In an unpublished opinion, Suiraers of grand juries jury commissions, mentally retarded adults were en V. Scroggy, 6th Cir. No. 87-5064, the Court heid that Ford had stand titled to judicial hearings based cert. denied, 108 S.Ct. 1122 ing only as to nonwhites. While on the due process clause, The 1988, the Court found KRS 439.352 underrepresentation of nonwhItes on Sixth Circuit found the currently to be unconstitutional because it grand juries was insignificant, the utilized administrative commitment violates a parolee’s due process Court expressed alarm at the ab procedure to be violative of due right to a hearing. This statute sence of blacks on jury commissions process. This conclusion was reach automatically terminates parole for twenty years. Despite its ed after comparison with the due when the parolee Is convicted of a alarm, the Court found that total process afforded to prisoners who new crime and is sentenced to pri exclusion without further evidence are the subject of transfer to men son. The Court, noting that a paro of discrimination is insufficient tal facilities under Vitek v. lee must be given the opportunity to establish a prima fade case. Jones, 445 U.S. 480 1980. to present evidence in mitigation, Even if total exclusion is suffi remanded the case for a revocation cient to prove an equal protection hearing. violation, the Court ruled that re versal would not be required. The Donna L. Boyce Court said such discrimination Assistant Public Advocate would not undermine the integrity Major Litigation Section of the indictment and conviction Frankfort, Kentucky 40601 due to the clerical, technical na 502 564-8006 ture of jury respon- sibi I Ities, Petition for certiorari is pending In Ford. The district court’s opinion was Coitment of affirmed In twoInvoluntary other areas. The Retarded Court found thatMentally the guardianship procedures are not a sufficient The Sixth Circuit’s recent opinion replacement for a hearing prior to In Doe v, Austin, F.2d , 17 institutional placement. The Court SCR 13 6th Cir. 1988, retaIns for also found that parents or guar mentally retarded adults the right dIans cannot place their adult to have judicial determinations of children in an institution under whether or not they meet the cri the auspices of a voluntary commit teria for involuntary civil commit ment. Such placements are involun ments. tary commitments. However, this right exists, accord The court further mandated that the ing to the Sixth Circuit, due to Cannonwealth must make a periodic the equal protection right of men judicial review procedure available tal ly retarded persons to be pro to mentally retarded persons during vided the same protection as is their confinements. The timing of provided to mentally ill persons such revIew was not established by vls-a-vis civil canmltment, There the Sixth Circuit. The case was fore, since KRS 202A provides for remanded for further action consis Judicial hearings prior to commit tent with these findings. ment of mentally Ill individuals, there must be such hearings af- A petition for rehear I ng f lied by forded to mentally retarded the Cabinet for Human Resources is adults. pending in this case. -29- Plain View Search and Seizure Law and Comment Ernie Lewis The Supreme Court of the United cative of narcotics use," Officer privacy was not one society was States during the past two months Stracner then secured a warrant for prepared to view as reasonable. has considered two major search and the house, the execution of which The Court noted that garbage placed seizure cases, both of which went revealed hashish and cocaine. at the curb in garbage bags was agaInst the rights of the person Stracner then went through the en exposed to the public where "ani accused of the crime, tire process a second time once mals, children, scavengers, snoops" Greenwood was released on ball, had access to the garbage. Citing In the first, California v. Green Greenwood was convicted but the Katzv, UnitedStates, 389 U.S. 347 wood, 468 U.S. , 108 S.Ct. 1625, state courts reversed, holding that 1967 the Court stated that "what 100 L.Ed.2d 30 1988, the Court the warrantless trash search had a person knowingly exposes to the considered a question that had been been violative of the Fourth Amend publIc, even in his own home or of brewing before the lower courts for ment, fice is not a subject of Fourth A- some time. The question as posed mendment protection." ld.at 3030. by the Court was whether a defen Justice White wrote for a six per dant manifests "a subjective expec son majority, absent JustIce Kenne Justice Brennan wrote the dissent tation of privacy In their garbage dy. The Court held that while for himself and Justice Marshall. that society accepts as objectively defendant Greenwood might have had In stinging language, he stated reasonable." ld.at 3030. a subjective expectation of privacy that "scrutiny of another’s trash In his garbage as witnessed by the is contrary to commonly accepted The case began when one officer fact that it was concealed inside a notions of civilized behavior. i Stracner received information that garbage bag, this expectation of suspect, therefore, that members of the defendant Greenwood might be involved In narcotics traffIcking. Officer Stracner also knew that a DEA agent had heard from a criminal suspect in a case that a truck containing drugs was headed for house. Officer Strac- nor had also heard that a neighbor had been complaining of heavy ve hicular traffic in the area near Greenwood’s house. However, a sur I veillance of Greenwood’s house faI’ed to reveal further substan tial evidence of drug trafficking. In order to further investigate the case, Officer Stracner asked the trash collector to save the trash from Greenwood’s house, The trash collector did so; Officer Stracner rummaged through trash which had been in a sealed garbage bag. There, Stracner found "Items mdi- 11 Reprinted by PermIssion: -30---- our society wil I be shocked to to individual liberty and more sen that any police chase, including learn that the Court, the ultimate sitive to Intrusions on the sanc the one involved in this case guarantor of liberty, deems unrea tity of the home than the Court is implicated his privacy rights. The sonable our expectation that the willing to acknowledge." Id. at Court rejected both positions. aspects of our private lives that 3034-3035. Rather, they held that under the are concealed safely in a trashbag particular cIrcumstances of this will not become public." Id. at The Court also looked at the common search the Fourth Amendment was not 3032. street encounter where upon seeing involved. They used the test first the police the object of the en used in United States v, Menden- Brennan analyzed the search from counter flees. MIchIgan v. Ches- hall, 446 U.S. 544 1980, which the perspective of a container as ternut, - U.S. -, 108 S.Ct. states that "the police can be said opposed to garbage. It is Inte 1975, - L.Ed.2d - 1988. This to have seIzed an individual ‘only resting here that the nomenclature was a decision which had been long if, In view of all-the circumstan seems to be determinative of the awaited by the law enforcement ces surrounding the incident, a way the opinion goes. Justice community who hoped that the Ches- reasonable person would have be White, viewing the object of the ternut case would decide that evi lieved that he was not free to search as mere garbage, said that dence of flight upon seeing police leave.’" Id. at 3079. Under the society was not prepared to view as allowed for at a minimum a Terry Mendenhail test, the Court conclu reasonable privacy expectations in stop. in that sense, the Chester- ded that Chesternut was not seized a garbage bag. Justice Brennan, on nut case had to be something of a before he had tossed the packets. the other hand, instructed the disappointment. "ITihe police conduct involved here Court to look at this as a contain would not have communicated to the er search. When viewed from this In an opinion by JustIce Blackmun, reasonable person an attempt to perspective, he could rely upon a in which Justice Kennedy, Joined by capture or otherwise Intrude upon long line of cases findIng the Justice Scalia wrote a concurrence, respondent’s freedom of movement." expectation of privacy reasonable the. Court took a minimalist ap In a container. See UnitedStates proach to the problem. The facts The Court was careful to note that . v. Jacobsen, 466 U.S. 109, 1984; were simple. Four police officers the police here did not have their Robbinsv.California, 453 U.S. 420 were driving In Detroit when they siren or flashers on, they did not 1981; and UnitedStates v,Chad- saw a car stop, a man get out and command Chesternut to stop, they wick, 433 U.S. 1 1977. Brennan go up to one Michael Chesternut, did not dIsplay their weapons, nor ended his dissent by saying that who then saw the police and began did they control Chesternut’s di "the Court paints a grim picture of to run, The police drove alongside rection or speed. This emphasis, in our society. It depicts a society Chesternut. They did not arrest combination with the Court’s hold in which local authorities may com him, blue lights were not turned ing, actually makes the Chesternut mand their citizens to dispose of on, guns were not drawn, During case a good one for the defense, their personal affects in the man flight, Chesternut threw packets Where a siren Is turned on, where ner least protective of ‘the sanc out of his pocket which were then the police draw weapons, control tity of the home and the privacies recovered. Shortly after throwing the defendant’s direction or speed of life’ ... and then monitor them the packets out of his pocket, or use any other kind of intrusive arbitrarily and without judicial Chesternut stopped. An officer device, it can be said that under oversight -- a society that Is not looked at the packets and In his the Mendenhall test, an arrest or prepared to recognize as reasonable opinion thought that they were nar a stop has occurred Implicating the an Individual’s expectation of pri cotics and arrested Chesternut. Fourth Amendment. vacy and the most private of per After arrest, Chesternut was taken sonal affects sealed in an opaque to the police station where more The opinion is Interesting in a- container and disposed of In a man pills, heroin, and a needle were nother way. Justice Kennedy wrote ner designed to co-mingle It immi found on his person. a concurrence which was joined in nently and inextricably with the by Justice Scalia. It is our first trash of others ... the American The state of Michigan contended indication, other than his circuit society with which I am familiar that until Chesternut was appre court opinions, of how exactly he to dwell in reasonable hended, the Fourth Amendment was will approach Fourth Amendment security and freedom from surveil not involved in any way. Chester- questions. Given that, his concurr lance,’ ... and is more dedicated nut, on the other hand, contended ence does not bode well for persons interested in preserving Fourth peals on discretionary review who the exigency analysis contained In Amendment rights, Justice Kennedy held that the blood test was inad Coolidge v. New Hampshire, 403 U.S. viewed this case as presenting "an missible because it was taken with 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 opportunity to consider whether out a warrant prior to arrest in 1971. even an unmistakable show of au violation of the Fourth Amendment thority can result in the seizure and KRS 186.565 1 and 2. In United States v, Jones, 17 of a person who attempts to elude S.C.R. 10 6th Cir. May 4, 1988, apprehension and who discloses con The Sixth Circuit also spoke In the the Court held that an illIterate traband or other incriminating evi Fourth Amendment area twice in the defendant who was not advised of dence before he is ultimately de last two months. In UnitedStates his Miranda rights nor advised of tained. it is at least plausible to v, Markham, S.C.R. 17 6th Cir. his right to refuse a search did say, that whether or not the off I- 4/18/88, the defendant had parked not voluntarily consent to a search cers conduct communicates to a per an unattended motor home in a pri where he had been picked up; be son a reasonable belief that they vate driveway, It was conceded that lieved that he was under arrest; intend to apprehend him, such con police had probable cause to be- and taken to his house, The Court duct does not Implicate Fourth I leve that the motor home, a Winne under the totality of the circum Amendment protections until it bago contaIned marijuana. The de stances viewed his consent as in achieves a restraIning effect." it fendant contended before the Court voluntary. appeared that Justice Kennedy was that the automobile exception did disappointed that the Court did not not apply because there was no mo take the opportunity in the Ches- bility inherent In the vehicle. The Short View ternut case to expand Terry v. The WInnebago was unoccupied, was Ohio, 392 U.S. 1 1968 to extend under surveillance and thus there Washington v. Belieu, 751 P.2d 321 to one of the most common street were no exigent circumstances al Wash. App. 1988. Here the police encounters. One cannot read too lowing for a warrantless search of heard that an individual was casing much into the failure of Justice the Winnebago. a house. Upon Investigation, they Kennedy to achieve a majority for found the defendant with another his position, however, The Court man, walking by the house. He met was able to find a majority which the description given by the in simply viewed the specific circum formant. The two men ran toward the stances of this case, affirmed the car and shortly thereafter the car Mendenhall test, and said little drove off with its headlights of f. more. The greater question will Police stopped the car, drew their simply wait for a later time. guns, and ordered the persons out of the car, Upon searching the car, The Court of Appeals of Kentucky in they found a rifle In the backseat, an unpublished decision wrote an and two other guns in the car. interesting opinion in Coqonweaith They also found a stolen ring as a v. George Martin, unpublished, result of a patdown of one of the June 3, 1988. They viewed a situ persons. The Washington Court of ation where one George Martin had a Appeals held that what had occurred car wreck and was taken to the was a full felony stop requiring hospital. While there, the deputy The Sixth Circuit disagreed, how probable cause. They rejected the sheriff requested that a blood sam- ever, relying upon California v. contention that this was pie be drawn for chemical testing, Carney, 471 U.S. 386 1985. The only a Terry stop, because once the that testing later revealing a .16. Sixth Circuit held that the search car was stopped, guns were drawn Three days after the accident, but here was valid saying that Carney and all occupants were ordered out before the sample’s results came and the automobile exception re of the car. They were not free to back, Martin was charged with driv quired no exigencies to justify a leave and probable cause was re- Ing under the influence. He was warrant less search. Rather, the q u I red. convicted but this conviction was Sixth Circuit viewed Carney as set later reversed by the Casey Circuit ting up a bright line rule under Williees v, Ward, 43 Cr.L. 2081 Court, The Circuit Court’s opinion the automobile exception, rejecting 2nd Cir, 4/19/88. in this par was affirmed by the Court of Ap- implicitly, although not stated, ticular case, a class action suit -32- suit had been filed challenging the United States v. Thomas, 844 F.2d house, they found the television New York practice of providing an 678 1988. Here, the Ninth Cir- set. Their search then proceeded arraignment and a probable cause cult reminds us that the stop and to the attic where a significant determination within 72 hours after frisk elements of Terry v. Ohio, amount of marijuana was found In the initial arrest. The plaintiff 392 U.S. 1 1968 involved two sep aluminum foil. The Mississippi class had successfully persuaded a arate acts with their own justif I- Court reversed the defendant’s con federal district judge to rule that cations. Here the police received viction for trafficking In mari a 72 hour arraignment violated Ger- word that two men were passing juana saying that the evidence stein v.f.i, 420 U.S. 103 1975, counterfeit bills. Upon arrival at should have been suppressed. The which had held that a much longer the place specified, the defen police had no authority to look un detention without a probable cause dant’s car was pulled over by the der the spool because the spool determination in Florida had vio police, he was ordered out of the could contain neither the radio nor lated the Fourth Amendment. The car, and he was frisked whereupon a the television set. Further, once Second Circuit reversed the dis weapon was discovered, The gun was the radio and television were trict court holding that a 72 hour correctly suppressed according to found, authority for the search detention followed by an arraign the Ninth Circuit, due to the fact ended and thus, going up Into the ment and combined with a probable that while the initial stop was attic and looking in the aluminum cause determination satisfied the justified by an articulabie suspi foil where obviously no radio or Fourth Amendment’s requirements, cion, the frisk was not based upon television set could be contained The Court noted that New York’s evidence that the defendant was was a violation of the Fourth A- procedure allowed "the accused Ito armed and dangerous, citing Adams mendment. bel present at the arraignment and v, Williams, 407 U.S. 143 1972. Ito havel the benefit of counsel in in every Terry stop, counsel should State ,. Smith, 540 A.2d 679 Conn. attacking the sufficiency of the specifically look at whether there Syst., 1988. The defendant, con charging instrument." The Court was articuiabie suspicion not only victed of armed robbery to feed a further noted that the ALl Model that the defendant was involved In drug habit, was released from pris Code of Prearralgnment Procedure criminal activity which justifies on after eighteen months and placed had approved the 72 hour detention. the stop but also whether there is on probation. He showed up for an an artlculabie suspicion that the appointment with his probation of What is important about this par defendant is armed and dangerous ficer four hours late under the In ticular case for Kentucky practi justifying a frisk. fluence of some stimulant. Upon tioners is not that a lesser time questioning, he admitted to the of of 72 hours was not required by the People v. Griminger, N.Y.Ct.App., ficer that he had smoked marijuana Second Circuit. Rather, what is 43 Cr,L. 2103 4/28/88. Here, New and brazenly stated that he would Important is the Court’s emphasis York rejects the Illinois v, Gates, continue to do so. The trial judge upon nothing ‘more than 72 hours 462 U.S. 213 1983 test for judg-. allowed for a change in the, condi prior to the holding of the ar ing the adequacy of informer hear tions of probation upon presenta raignment and probable cause deter say offered to prove probable cause tion of this information. One of mination. What is further impor prior to the issuance of a search the conditions was that of the re tant is the emphasis on a probable warrant. New York will continue to quiring of the defendant to submit cause determination. One will re use the tried and true Aguilar v. to urine testing. The defendant view district court procedures in Texas, 378 U.S. 108 1964 and Spi- appealed citing Griffin v, Wiscon vain largely to find a significant nelli V. United States, 393 U.S. sIn, 97 L,Ed.2d 709 1987. The probable cause determination being 410 1969 test. Connecticut Supreme Court upheld conducted by district judges. in the change In conditions stating specific cases, the failure of the Carney v. State, 525 So.2d 776 that there was a reasonable suspi Court either to provide a 72 hour Miss. Sup. Ct. 1988. The police cion for the urine test. appearance before a magistrate or obtained a warrant allowing for a more specifically a probable cause search for a stolen radio and State v. Feles, 540 A.2d 1120 Mn. determination can have a signi television set at the defendant’s Sup., 1988. The Court rejected in ficant impact on later admissl- house. The police started at the this case what has to be described blllty of evidence such as confes patio where they found the radio as a creative approach to a sions taken in derogation of those and also found some marijuana under justification for a search by the rights. a wooden spool, Once Inside the State of Maine. Here, the defendant -33- had been arrested for DUI and was rant had standing to challenge the ice officer saw a suspicious motor released on bail. His car was im illegal entry of that house. ist pass two cars thereupon failing pounded and the police asked him if to return to the right lane on a he wanted a ride home. He stated Unltsd States v. Whit.head, 43 four lane highway. The police of that prior to going home he wanted Cr,L.. 2177 4th Cir. 5/24/68. Here ficer wanted to pull the car over to retrieve a gym bag which had a the Fourth Circuit found that a and used the actions of the motor large amount of money in it. While sleeping compartment in an Amtrak ist to pull the car over and to on the way the police notIced mild train was more like a car than a search the car, whereupon he found "moodswings." Once at the impound motel room and thus a person had a cocaine. The Court held this to be ment facility, the defendant asked limited expectation of privacy in an obvious pretextual arrest and the officer to get the gym bag for that sleeping compartment. Further, ordered a suppression of the co him. The officer noticed a great because of the limited intrusive caine found during the search. deal of money sticking out of the ness of a canine search, probable gym bag and decided to search the cause was not required to expose Ernie L*wls gym bag where he found a signif I- luggage In the compartment to a Assistant Public Advocate cant amount of marijuana, The de sniff frou a dog. The Court SHow- Diretvr fendant was taken back to the po ed for a dog sniff based upon rea- DPA Madison/Jackson County Office lice station at that point and sortable suspicion rather than prob Richmond, Kentucky 40475 charged with additional offenses. able cause relying upon California 60& 623-8413 The Court rejected the state’s v.Carney, 471 U.S. 386 1985 and contention that they had a right United States v. Place, 462 U.S. to search the gym bag due to the 696 1983 which held that public defendant’s "mild moodswings" stat exposure of luggage to a dog sniff Order form ing that that did not give them a is not a search. reasonable or articulabie suspicion justifying a search of the gym bag. State v,R.ddlck, Conn. Sup. Ct. 43 Further they rejected the state’s Cr,L. 2178 5/10/88. The police In contention that the police officers this case had a warrant to search had a right to search the gym bag the upper floor of a building. In order to protect themselves, There was a basement where there noting that there was no suspicion was a laundry area shared with that the defendant was armed and another apartment unit. The polIce dangerous. entered the upper floors and exe cuted their search warrant but they Cum.onw.elthv.D.rosla, Mass. Sup. did not find a shotgun which they Jud, Ct. 43 Cr.L. 2174 5/4/88. believed was involved in a robbery. The police in this case had a war They entered the basement laundry rant to arrest the defendant. They area where they found the shotgun NAIC: found that he was in a third per hidden in a washing machine by the son’s home and without a warrant defendant. The Court held that the ADDRESS: for entering that home, they went defendant who was the adult son of in and arrested the defendant. The the person renting the apartment Court held that the arrest of the had a reasonable expectation of defendant was illegal citing Steg privacy in his parent’s home, and QUANTITY: aldv. UnitedStates, 451 U.S. 204 In the basement area shared with 1981. This case represents an the other apartment. Thus, the po Send check or money order payable extension of Steagald, however, due lice had no authority to violate to the Kentucky State Treasurer to: to the fact that Steagald addressed the defendant’s reasonable expecta the privacy rights of the third tion of privacy by conducting the Rights Cards party whose house was entered wIth search of the basement area outs ide Department of Public Advocacy out a warrant. Derosia goes fur the bounds of the warrant. 1264 Louisville oad ther saying that the entry of the Perimeter Park, West third party’s house was Illegal and Stat. V. Sierra, Utah Ct. App. 43 Frankfort, Kentucky 40601 the person named In the arrest war- Cr,L, 2193 5/18/88. Here, a pot- -34-- Preservation Randy Wheeler reviewed either in 927 1977. Another reason given As every attorney who has handled error should be fatal for declining to review unpreserved an appeal should know CR 76.124 itially or in reply may prove that appellate or insuffIciently preserved errors civ requires that each argument since it is clear is that the failure to raise an is In an appellant’s original brief be courts will often look to the lack reviewing, sue may have prevented the record introduced by "a statement with re of preservation to avoid merits. from being fully developed. See ference to the record showing whe much less reversing on the Simmons v. Commonwealth, Ky., 746 ther the issue was properly preser Any problems with preservation be addressed S.W.2d 393, 39kS 1988; Relford v. ved for review and, if so, in what should, therefore, care and concern as Commonwealth, Ky.App., 558 S.W.2d manner." Obviously, this require with as much involved. 175, 177 1977. ment is easily met If, Indeed, the the merits of the Issue issue being raised has been ade OBJECTIONS TO PRESERVATION quately preserved. But what does PRESENTING meritori TRIAL COURT one assert if an arguably Emphasizing the importance of pre ous issue has not been preserved or without Implying requirement that a litigant servation but not if an assertion of preservation The to the re adequately" present his the need for exceptions pursuant to this rule is met with "fairly and of trial court in re quirement the Supreme Court opposition? RCr 10.26 and its par position to the any issue which arises Kentucky has stated: allel civil rule, CR 61.02 con lation to during trial is primarily to allow taIns at least a basis for the ans rigtts, even of the trial court the first opportun Substantive wer to this question. The rule pro magnitude, do ity to correct the problem. jg constitutional vides: "A palpable error which af procedural rules, Commonwealth, Ky., 559 S.W.2d not transcend fects the substantial rights of a V. without such rules 485 1977; see also Damronv. because party may be considered by the 482, smother in Ky., 687 S.W.2d 138, those rights would on motion for a new trial or Commonwealth, court trial court chaos and could not survive. appellate court on appeal, 140 1985. But if the by an opportunity There is a sImple and easy pro though insufficiently raised is not given the first even the appel cedural avenue for the enforce for review, and appro to alleviate the error or preserved ment and protection of every a late court will generally determine priate relief may be granted upon principle of substan that it is inappropriate for it to right and determination that manifest injus at an appropriate time rule on the Issue since as far as tive law tice has resulted from the error." point during the course of it is concerned no issue has actu and litigation, civil or crimi ap ally arisen and, more importantly, any Although this rule does provide That is not to say that for the litigant claiming the grievance nal. pellate counsel with a toehold over sub may not have form may be exalted review, experience has taught that on appeal actually the time of stance, because procedural re an assertion that the appellate wanted to raise it at Appeals, at quirements generally do not review an unpreserved trial. The Court of court should exist for the mere sake of form without ela least, has said that It will not a- error under this rule style. They are lights and the equiv dopt a rule requiring a trial court and boration is, In essence, buoys to mark 1-he channels of substance of to stop the proceedings if it re alent of arguing the passage and assure an ex the cognizes the possibility of an Is safe an error simply by stating that to the right to determine if a wai peditIous voyage issue Is meritorious. Overlooking sue in order importance Salisbury... destination. Their the importance of the need to suf ver is intended. or S.W.2d 922, simply cannot be disdained ficiently argue why an unpreserved ,nonwealth, Ky.App., 556 -35- denigrated. Without them every the ramifications of the failure to 878 1981; Hunter v. Commonwealth,. trIal would end in a shIpwreck. preserve issues in different ways Ky., 560 S.W.2d 808, 8091977;. Brown v. Commonwealth, Ky., 551 depending on the circumstances. Summit v. Commonwealth, Ky., 550 S.W.2d 557, 559 1977. Generally, the courts will simply S.W.2d 548 1977. On occasion the indicate that the lack of preserva courts have gone even farther say in most situations, the appellate tion prevents a review of the issue ing that an issue not preserved in courts have been quite strict in even though raising the issue may the trial court cannot even be rai requiring preservation. For exam at least cause the court to review sed in the appel late court much ple, an objection on one ground the entire record to make this de less reviewed. SeeCorbettv.Com- will not allow an appeal of the is termination. See Russell v.Ccr- monwealth, Ky., 717 S.W.2d 831, 834 sue on the basis of another. See monwealth, Ky., 482 S.W.2d 584, 589 1986 in which the court did go Gunter v. Commonwealth, Ky., 576 1972; Futreil v. Commonwealth, on to review the issue to find no S.W.2d 518, 522 1978. Addition Ky., 437 S.W.2d 487, 488 1969; merit; Taylor v. Commonwealth, Ky, ally, an objection by a codefendant Cutrer v, Commonwealth, Ky,App., 461 S.W.2d 920, 923 1970. When in a Joint trial, even If faIrly 697 S.W.2d 156, 159 1985. Some the courts do review an unpreserved and adequately presented, may not times the courts will say an issue error in an attempt to find a mani be sufficient to allow the appel can’t be reviewed but If so it fest injustice usually they will do late court to review the error, See would have no merit. See Payne v. so only to find a lack thereof. See Rossv. Commonwealth, Ky.App., 577 Commonwealth, Ky., 623 S.W.2d 867, Commonwealth, Ky.App., 709 S.W.2d 6 1977; PrIce v. Common wealth, 474 S.W.2d 348 1971; Arn old v. Commonwealth, Ky, 433 S.W.2d 355 1968. However, the trial DPA Staff Changes court, by addressing an issue In a particular way, may preserve an is Sandra Siuinons, formerly an Public Advocate with our sue for appeal even If the objec Assistant Stanton Office, resigned on May 31, tion voiced was not on point. See 1988. She is now working with the Bixier v. Commonwealth, Ky.App., law office of Alec C. Stone, 138 712 S.W.2d 366, 368 1986; Sebas- Broadway, Brandenburg, Kentucky tianv. Commonwealth, Ky.App., 585 40108. 502 422-3900. 441 S.W.2d 440, 1979. Warren A. Taylor. formerly director of the Hazard Office, resigned on These preservation rules have been June 30, 1988, and has gone into applied to collateral as well as private practice In Hazard. His direct appeals, Parker v. Common new address is P.O. Box 1588, 436- wealth, Ky., 465 S.W.2d 280, 281 Hazard, Kentucky 41701, 606 6066. 1971, although It has been Indi cated that in a nontrial context a Morris Eaton, formerly an Assistant judge may have a greater responsi Public Advocate with our Paducah bility to ensure that a waiver Is Office, resigned on August 4, 1988. Intended. See Salisbury, supra, at He is now an Illinois public 927. AdditIonal ly, preservation defender. rules apply to the prosecution at NEW STAFF least to the extent of preventing it from challenging an action by Nancy Bowuan D.nton, Assistant the trial court related to an Issue Public Adovcate, joined the Hazard raised by the appellant on appeal Office on July 16, 1988. She is a 1987 graduate of the University of when it voiced no concern below. Louisville School of Law. See Fair v. Commonwealth, Ky., 652 S.W.2d 864, 867 1983. Gall Robinson, Assistant Public Advocate, rejoined the Frankfort FA I LURE TO PRESERVE Office’s Major Litigation Section on August 1, i988, after a two year "absence." Thanks to Gail for her The appellate courts have addressed numerous 2 bono efforts during Gail Robinson the course of that absence. -36- S.W.2d 844, 845 1986; Roston v. palpable error case is Stone v. supra, at 927-28. In other words, Commonwealth, Ky,App., 724 S.W.2d Commonwealth, Ky., 456 S.W.2d 43 in Stone, supra, the error may have 221, 222 1987. So how does one 1970. In that case a witness been glaring but there was also no argue for review and, more impor testified that the defendant cashed reason why the appellant would have tantly, reversal on the basis of a stolen check at 9:00 p.m. on a waived the error. The problem with unpreserved errors? certain date, The defendant denied such an analysis of palpable error, that he was in the area that night. however, is that the reason why an SUBSTANTIAL ERROR On appeal the court noticed that issue was not raised at trial is the check was stamped by the bank often "imponderable." Sanborn v. The "substantial error" rule, RCr in which it was deposited on that Commonwealth, Ky., - S.W.2d -, 35 10.26 and CR 61.02 appears to date. Therefore, the court conclu KLS 7, 17 rendered June 9, 1988. require that two criteria be met ded on its own that the defendant before a review can be undertaken. could not have cashed the check on Ultimately, If there Is an indica The error must be palpable and must the day the witness said. Accord tion in the record that the failure affect the substantial rights of ingly, since that witness was the to raise an issue was a tactical the party raising the issue. If only one who could place the defen decision the court will decline to the issue can be considered then dant In possession of the check the review it, See Commonwealth v.Go relief may be granted only if It is court reversed the defendant’s con forth, Ky., 692 S.W.2d 803 1985. determined that a manifest injus viction despite the failure of the If, however, the error is of such a tice has resulted from the error. defendant to bring this discrepancy nature or is so prejudicial that Sometimes the appellate courts to the trial court’s attention. there can be no reasonable explana will hold that an issue can’t be tion for a failure to preserve, the reviewed unless it amounts to a court may address the issue without manifest injustice. See Knox v. the requirement of further proceed Commonwealth, Ky., 735 S.W.2d 711, ings. See Thomas v. Commonwealth, 712 1987, The substantial error Ky.App., 574 S.W.2d 903, 907 1979 rule which existed prior to RCr In which the Court of Appeals in 10.26, the former RCr 9.26, indi dicated that an error might be "so cated that a judgment could be re prejudicial" as to constitute a versed only If the court was sat palpable error. But, if there is isfied that the "substantial rights 3 any question concerning why there of the defendant had been prejudic was a lack of preservation it may ed." This rule, unlike RCr 10.26, be that the appellant will have to was not a preservation rule and was resolve the issue through a post applied many times to issues that conviction proceeding alleging in were unpreserved. See, e.g., York effective assistance of counsel. v. Commonwealth, Ky., 395 S.W.2d See Salisbury, supra, at 928. 781 1965. Although on at least one occasion an appellate court has Certainly the problem in Stone was Salisbury, supra, clearly Indicates analyzed an unpreserved error under obvious, but Stone nd other cases that whether there is palpable er RCr 10.26 using the standards ex dealing with palpable errors make ror and whether that error affects pressed for the former RCr 9.26, it It clear that the test for whether the defendant’s substantial rights appears from other decisions that an error is palpable Is more than are separate questions, both of the standards to be met under RCr Just whether It appears that an er which must be answered affirmative 10.26 are more stringent. See Jack ror has been made. Actually the ly before review can be afforded. son V. Commonwealth, Ky.App., 717 courts on many occasions have been It should be noted, however, that S.W.2d 511 1986. primarily concerned with the ques it has long been held that reversal tion of whether a waiver of the is is required only when a defendant’s PALPABLE ERROR sue was intended by the appellant. substantial rights have been af If so, even an otherwise obvious fected regardless of preservation. A palpable error is, by definition, error might not be considered palp See former RCr 9.26; Maupinv.Com- one which is obvious. But this is able since the appellant did not nonweaith, 267 Ky. 212, 101 S.W.2d somewhat misleading as will be originally Intend the problem to be 914 1937. Accordingly, it appears seen. Perhaps the quintessential considered an error. See Salisbury, that an appellant will always have -37- to show that his substantial rights alone might not mandate reversal. Edwards v. Commonwealth, 298 Ky. were affected if he hopes to obtain See e.g. Newell v. Commonwealth, 36, 182 S.W.2d 948, 952 1944. relief. This then does not appear Ky., 549 S.W.2d 89, 91 1977; War to present a requirement peculiar ren v. Commonwealth, Ky., 256 Other exceptions appear to be based to unpreserved errors although it S.W.2d 368, 379 1953. generally on the fundamental nature should be kept in mind that RCr of the right involved which could 10.26 requires that the substantial be a recognition that these errors rights affected be shown in order There are some areas of the law in inherently involve substantial to obtain a review of the issue which exceptions to the preserva rights, result in a manifest injus before the question of relief is tion rules have been provided. Per tice and are palpable since the even addressed. haps the most importailt of these failure to preserve can not be ex exceptions applies to capital cases plained as a tactic or otherwise MANIFEST INJUSTICE in which the Supreme Court has in excused. Although constitutional dicated that it wiii consider any rights are not necessarily exempt Although an error is palpable and error claimed to be prejudicial to from the need to preserve, see Fut- involves a defendant’s substantial ensure a "fair and impartiI tri rail, supra; Payne, supra; Common rights relief cannot be granted un al." Smith v. Commonwealth, Ky., wealth v. Tlryung, supra; Randol less there has been a manifest in 366 S.W.2d 902, 906 1962. The v.Commonwealth, Ky., 564 S.W.2d 1, justice, even if the issue involves Court has stated that it will ad 4 1978; Shockley v. Commonweaith, the defendant’s constitutional dress any error discussed in the Ky., 415 S.W.2d 866 1967; SaIls- rights. See Smith v. Commonwealth, appellant’s brief unless the error supra, the Kentucky Supreme Ky., 722 S.W.2d 892 1987; Common has been affirmatively waived or Court has indicated that double wealth v0 Tiryung, Ky., 709 S.W.2d the lack of preservation was an in jeopardy issues need not be preser 454 1986; Sanders v. Common tentional trial tactic. Sanborn, ved to be raised on appeal. Sher- wealth, Ky., 609 S.W.2d 690, 691-92 supra Ice v. Commonwealth, Ky., jv.Cannonweaith, Ky, 558 S.W.2d 1980; Roston v. Commonwealth, 667 S.W.2d 671, 674 1984; Jaggers 615, 618 1977; Jackson v.Common- Ky.App,, 724 S.W.2d 221 1987. v. Overstreet, Ky., 412 S.W.2d 238 wealth, Ky., 670 S.W.2d 828, 832 Furthermore, whether a manifest in 1967. Graves v. Commonwealth, 1984. justice has occurred must be judged 256 Ky., 777, 77 S.W.2d 45, 46 in the context of the entire rec 1935. The Court has also, on at REVIEWABLE ISSUES ord. Anderson V. Commonwealth, least one occasion, said that it RELESS OF PRESERVATION Ky.App., 554 S.W,2d 882, 884 will search for errors in death 1977. Manifest injustice Is cer penalty cases even if they were not On occasion the courts have indica tainly synonymous with some level preserved at trial or raised on the ted that some other rights must be of prejudice. However, it is not appeal. Caine v. Commonwealth, Ky., afforded the defendant regardless clear whether an unpreserved error 491 S.W.2d 824, 826 1973. The of the criminal rules. For in must be more prejudicial than a Court has taken this approach be- stance, preservation has not been preserved one in order to warrant cause "Itihe duty of maintaining required for issues dealing with relief. A manifest injustice has the constitutional rIghts of a per the right to trial by jury, Tackett been equated simply with the denial son on trial for his life and the v. Commonwealth, Ky., 320 S.W.2d of a fair trial. Thomas, supra. But importance to society and constitu 299 1959, the right to a proba the courts have also indicated that tional government that such person tion revocation hearing with ade finding a manifest Injustice may be accorded a fair and impartial quate notice, Murphy v. Common require "clear prejudice," trial require that the court take wealth, Ky.App., 551 S.W.2d 838 Commonwealth, Ky.App., 709 S.W.2d notice of any prejudicial error in 1977, and a codefendant’s right 844, 845 1986 or prejudice which the record, whether objected to or to separate counsel and conflicts is "apparent" and "great." Taylor or not, and direct a reversal of in general, White v. Commonwealth, v.Conmonwealth, Ky.App, 551 S.W.2d the judgement in order that such a Ky., 671 S.W.2d 241 1983; Trulock 813, 814 1977. See also Ferguson trial may be had. When the ac- v. Commonwealth, Ky.App., 620 v. Commonwealth, Ky., 512 S.W.2d life is at stake, technical S.W.2d 329 1.981. 501, 504 1974. It is also impor rules of procedure must give way in tant to emphasize once again that order that justice may prevail." in addition, defects in jurisdic- even if an extreme amount of preju Bowman v. Commonwealth, Ky., 290 tion may be raised at any time. dice can be shown passing this test S.W.2d 814, 817 1956; see also Anderson v. Commonwealth, Ky., 465 -38- S.W.2d 70, 74 1971. This princi CONCLUSION that important rights of the defen ple has been applied to the impro dant have been infringed upon by per calculation of sentences in The most obvious conclusion that the error primarily by denying him violation of statutory authority, can be reached by evaluating all his constitutional right to a fair iman v. Commonwealth, Ky., 694 the aforementioned cases and others trial; and 4 illustrate Wetthat the S.W.2d 696, 698 1985, but not to not cited herein is that the appel defendant has been severely preju invalid juvenile waivers. Common late courts have not been consis diced in the context of the entire wealth v. Thompson, Ky., 697 S.W.2d tent in determining how or whether trial. Hopefully showing the 143, 144 1985; but see Edwardsv. to review unpreserved errors and if fundamental nature of the right Commonwealth, 264 Ky. 4, 94 S.W.2d so, whether to grant relief. Few involved and/or an extremely egreg 25 1936. Also, the Supreme Court cases discuss this area of proce ious level of prejudice will also recently indicated that a jurisdic dure in depth and many seem to con help illustrate that the failure to tlonal issue dealing with a defec fuse and apply in inconsistent ways preserve could not have been an tive indictment could not be raised the standards to be met for such intentional choice and that further on appeal. Although the court did review. But from these cases it proceedings dealing with the effec address the issue to find against appears that counsel urging the tiveness of counsel could lead to the appellant. Corbett, supra but appellate court to review and no other result than reversal. see Couch v. Commonwealth, 281 Ky. reverse on an unpreserved error Such a showing might also achieve 543, 136 S.W.2d 781 1940; Strunk pursuant to RCr 10.26 should assert the establishment of another excep v. Commonwealth, 302 Ky. 284, 194 an exception or 1 show that an tion to the general requirement of S.W.2d 504. 1946. error has occurred; 2 convInce the preservation. court that the failure to preserve could not have been an Intentional Questions concerning the insuff I- waiver or a trial tactic and that Randy Wheeler ciency of evidence have met with there is no need. for any factual Assistant Public Advocate mixed results. The Court of Ap determinations through further Appel late Branch peals has held that when the Com proceedings concerning why there Is Frankfort, Kentucky 40601 monwealth fails to prove an essen a lack of preservation; 3 show 502 564-8006 tial element the conviction is a violation of due process nd there fore constitutes a palpable error affecting the substantial rights of Spouse abuse group’s founder the party. Perkins v. Common wealth, Ky.App., 694 S.W.2d 72.1, faces fight to clear reputation 722 1985. On the other hand, the Supreme Court has declined to re Associated Press 39-year-old Traverse City woman verse in many cases due to the lack TRAVERSE CITY, Mich. - the previous month. of preservation even though there Michael G. French no longer faces a Assistant Prosecutor Arnie first-degree rape charge. But White said he dropped the charge have been a "plain failure to may French, the founder of a support because the woman refused to coop prove a case." Newell, supra, at program for spouse abusers, says erate with prosecutors. She refused 91. Perhaps in no other area Is he still faces the trial of restoring to comply with a court order re the conflict between the preserva his reputatioh. questing medical and psychological tIon requirement and a fundamental "There always will be people records, said she would not testify right so pronounced. Certainly, the out there scratching their heads, and finally indicated she wanted to saying, thing," White said. prove every element of a ‘He got off only because "drop the whole failure to there was not enough proof,’" Richard Zerafa, the woman’s crime beyond a reasonable doubt is French said after the Grand Tra attorney, said she was not willing is prejudicial to the accused, and verse County prosecutor’s office to disclose personal information. a conviction so based should con dropped the charge last week. French said the accusation cost stitute a manifest injustice. See French, 43, was arrested in No. him not only thousands of dollars Maupin v. SmIth, 785 F.2d 135, 140 vember 1986 and charged with in legal fees but also an estimated 1986 The error, which clearly in first-degree criminal sexual con $50,000 in revenue for the Time Out duct. He had allegedly assaulting a support program. volves a substantial right, should, therefore, be palpable, thus re quiring review. Lexington Herald-Leader, AprIl 24, 1988 -39- Trial Tips For the Criminal Defense Attorney Haif-Truth Warren Taylor In Sentencing Lets face iti The separate sentenc during sentencing hearings. We in West’s Military Justice Reporter: the published dc ing hearing In Kentucky is here to Kentucky would be most lax in our N.J. "Contains responsibilitIes as defense lawyers cisions of both the Court of Mili stay - at least for nowl As a re Appeals and the various Courts sult, Kentucky stands alone amongst if we simply ignored this large bo tary and simply of Military Review. the 50 states in having a bifurcat dy of law and experience wheel. The purpose Court-Martial Reports: C.t4.R. ed felony system. SInce this Is reinvented the is to familiarize "The older version of West’s Miii- still a new process IA Kentucky, of this article military system, and tary Justice Reporter. the system remains in the Initial you with the suggestions as to how stages of development, both in to make some the military standards to SENTENCI HG PROCEDURE AT terms of the final form for sen to apply practice. cOTS-MART JAL tencing procedure, what Is allowed Kentucky as evidence, and what will become Because some of the words used by Rule 1001 of the MCN establishes the normal standards of practice at differ from those In the procedure for the presentencing the sentencing hearing. in the re the military practice, and because most hearing at Courts-Martial and read published case of RIJPPEE V. civilian cently are not familiar as follows: Plo. 87-SC-281-P4, the civilian lawyers £OMIONWEALTH, courts and publi Supreme Court showed that with the military Kentucky list of defi 1 ProcedureS. After findings of it when they said that cation, the following they meant in order to guilty have been announced, the correct problems as they nitions is provided they would prosecution and defense may present that it Is Impro avoid confusion: arose by ruling matters pursuant to this rule to per for a prosecutor to argue that determin Accused: "The defendant." aid the court-martial In a defendant will be released when sentence. Such Defense Counsel: "The defense coun ing an appropriate he is first eligible for parole. ordinarily be pre sel," matter shall This should be the first of many sequence: Pr.sentsnclftg Hearing: "The sen sented In the following rulings yet to come which will es trial counsel hearing." A Presentation by tablish proper sentencing proce tencing Trial Counsel: "The prosecutor." of: dure. It is the trial defense law relating to the Military Appeals: CMA or Ci service data responsibility to establish a Court of the charge yer’s "The final Appellate Court accused taken from of practice which will as COMA standard Courts-Martial. On rare occa sheet; that those future rulings will for relating to the sure the United States Supreme ii personal data continue to protect our client’s sions character of the wilt review their decisions. accused and of the substantial rights. Court as refiect- of Military Review: CI’f prior service Court records of the Intermediate appellate courts. ed In the personnel Even though we In Kentucky stand a- "The Each branch of the military has accused; lone amongst the states, we are not evidence of prior convic It’s own Court of Military Review. iii the only, and are far from being or. civilian; The initial for a Court of Military tions, military the first, judicial system to adopt of aggravation; and Review s Ct’R preceded by the ini iv evidence a bifurcated trial procedure. A of rehabilitative po tial of the branch it serves. Cv evidence system very similar to ours has for Courts-Martial, United tent I a I. been in place for many years in Manual the defense of MCM "Contains both B presentation by Courts-Martial, and that States 1984: mitiga military substantive and pro evidence in extenuation or system has a well-developed stand the regulatory law for Courts-Martial." tion or both. ard of practice for defense counsel cedural -40- C Rebuttal. show. The military courts have matters in extenuation or mitiga 0 Argument by the trial counsel strictly and universal ly adhered to tion or both, relax the rules of on sentence. the principal that parole is a re evidence. This may include admitt E Argument by the defense coun sult of future considerations, many ing letters, affidavits, certifi sel on sentence. of which are beyond the control of cates of military and civil off 1- F Rebuttal arguments In the dis the accused, and that considering cers, and other writings of similar cretion of the military judge. parole as a factor in sentencing is authenticity and reliability. nothing more than engaging in spec 2 AdJudging senteac. A son- ulation. As a result, they have It should be pointed out here that tence shall be adjudged in all strictly forbidden any use of evi some courts have interpreted KRS cases without unreasonable delay. dence related to parole eiigibil- 532.055 as limiting the defense to I ty. evidence that the defendant does 3 Advice and Inquiry. The mili not have a criminal record and evi tary judge shall personal ly in Evidence In Extenuation and Mitiga dence in rebuttal of any evidence form the accused of the right to tion is covered in greater detail presented by the prosecution. While present matters in extenuation and In the MOM at Rule 1001c as fol a ful I discussion of this point s mitigation, including the right to lows: beyond the scope of this article, make a sworn or unsworn statement It is vital that this interpreta- or to remain silent, and shall ask c Matter to be presented by the t ion not be alt owed to stand, or if whether the accused chooses to ex defense. t does that it be challenged con ercise those rights. 1 In general. The defense may stitutionally. It would certainly present matters in rebuttal of any appear to be a violation of due You will note that there are both material presented by the prosecu process in that It would establish similarities and differences in re tion and may present matters in a one-sided sentencing procedure gard to what the prosecutor can extenuation and mitigation regard whereby the prosecution is allowed present. Since this article is less whether the defense offered to present several matters In ag pointed toward the defense perspec evidence before findings. gravation of a sentence, but would tive, I will briefly touch on those A Matter in extenuation. Matter not allow the defense to present here, and they will not be mention in extenuation of an offense serves several matters in aggravation of a ed again. to explain the circumstances sur sentence, but would not allow the rounding the commission of an of defense to present any evidence ex First, both in Courts-Martial and fense, including those reasons for cept evidence in negation. Evi in Kentucky, the prosecutor is al committing the offense which do not dence that the defendant has no lowed to present evidence of prior constitute a legal Justification or prior criminal record Is essential convictions, and evidence in aggra excuse. ly negation evidence in that It vation. The items relating to ser B Matter In mitigation. Matter - shows the absence of an undesirable vice data and personal data are pe in mitigation of an offense is in trait rather than allowing the culiar to military service and do troduced to iessen the punishment showing of desirable traits. not really have civilian counter to be adjudged by the court- parts. Of interest, however, is martial,- or to furnish grounds for It Is axiomatic that- In order to that under certain circumstances in a recommendation of clemency. it arrive at a fair sentence, the jury the Courts-Martial, the prosecutor includes ... particular acts of must know as much as possible about may be required to present evidence good conduct or bravery, and. evi the defendant. in order to know which shows rehabilitative poten dence of the reputation or record about the defendant they must be tial as well as evidence which of the accused in the service for allowed to hoar a wide range of shows lack of rehabilitatIve poten efficiency, fidelity, subordina character evidence If such is of tial. However, those circumstances tion, temperance, courage, or any fered in mitigation. A jury which are beyond the scope of this arti other trait that Is desirable in a does not hear anything about the cle. service member defendant is going to sentence the defendant based strictly on the Of most interest to Kentucky prac 2 Statement by the accused. crime itself, and as a rule, those titioners Is the absence of evi sentences will tend toward the max dence of parole from the matter 3 Rules of evidence relaxed. The imum. Sentencing Is not just a which the prosecutor is allowed to military judge may, with respect to function of "the sentence should -41- fit the crime" but is equally a instead of the trial counsel gets know that there is a reasonable function of "the sentence should the last argument on sentencing. likelihood of a sentencing hearing fit the individual defendant." By by the jury we must commence the applying a possible range of sen gathering of sentencing evidence at tences for the different crimes, the outset of our Investigation of the General Assembly has already the case. This Is the general prac dealt with the application of the tice by military defense counsel. sentence to the crime, if there A general question which is asked was no intent to tailor sentences of at I defendants during the Ini to the individual defendants, then tial interviews Is to provide the there would be no need for a range military defense counsel with a of possible sentences. list of those persons who might be willing to provide character evi This is the primary theme which dence for him. Those persons are prevails throughout decisions re then routinely interviewed with an lating to sentencing issues in mil eye in mind as to their utilization itary courts. In 1976, the Court during the sentencing hearing. of Military Appeals reconfirmed the relevance of character evidence to The form that character evidence sentencing when they stated that As to the first, it has generally may take in a sentencing hearing Is "character evidence is relevant been the practice across Kentucky far more varied than the limited both to determination of guilt and that the Judge would receive and evidence one may offer during the adjudgment of an appropriate sen read letters or petitions from fam- guilt phase. Since one of the ma tence." United States v, Carpen- ily, friends or neighbors prior to jor objectives of arriving at an ter, 1 M.J, 384 CMA 1976. More final sentencing. There is no rea appropriate sentence is for the recently, the Army Court of Mili son why this potential evidence of jury to know as much as possible tary Review stated that the "proper character should be denied to the about the defendant, the military application of sentencing concept sentencing jury. Second, the pro allows a wide latitude In regard to that punishment should fit the of secutor receives the last argument character evidence during sentenc fender and not merely the crime during the guilt phase because he ing. This should also be the case necessarily depends upon the Courts has the burden of proof. He has no in Kentucky, Just as it has normal knowledge about the offender as a such burden during sentencing. In ly been in the past during the fin- whole person ...." United States addition, he has the advantage of al sentencing by the Judge. Since v.Wright, 20M.J. 518 ACm 1985. only having to convince the Jury the purpose of such evidence is to that this convicted felon must be allow the jury to get a solid Again, this is a vitally important punished severely. The defense, on "feel" for the defendant, the need Issue. if we’re going to have sep the other hand, must be able to for strict rules as to form are arate sentencing hearings, then the convince the Jury that the con greatly diminished. defense must be allowed to present victed felon should be given a positive evidence of the defen break. The last word can frequent One word of warning In that any dant’s good character. Anything ly be a powerful weapon, and in a evidence offered opens the door for less would deny the defendant any situation of sentencing where the rebuttal. However, rebuttal char opportunity to receive a fair sen prosecution already holds a decided acter evidence which Is based tence. advantage, he should not also be strictly on opinion or reputation given the extra advantage of the resulting fran the crime Itself A couple of other points of Courts- last word. should not be allowed. - Martial procedure which the defense counsel should consider are the PRACTICE AT COURTS-MARTIAL In the Military Courts, almost any facts that the rules of evidence SENTENCING HEARINGS evidence which is offered by the are relaxed in regard to the pre defense which would assist the jury sentation of evidence in mitigation Probably the most significant in knowing the individual offender and extenuation not as to matters change we in Kentucky need to make has been admitted during the pre- In aggravation or rebuttal there In our criminal practice Is in the sentencing hearings. This evIdence of, and that the defense counsel area of trial preparation. Where we is primarily limited only by rele- -42- vance and by rules limiting the -Willingness of others to serve in the application of the Ideas is go presentation of cumulative evi combat with the accused ing to depend upon favorable rul dence. The most common form it has ings by the Courts. I anticipate taken has been In the form of test Note that this list is a partial that overall, we will receive fair imony by the Accused’s superiors, list, and does not begin to cover rulings and will be allowed to pre peers, family, and friends. Gener the entire spectrum of evidence sent all the evidence which we have ally it would consist of general which has been received during pre- which Is relevant to sentencing. It "good guy" opinions, it can relate sentencing hearings. Also, you can be effective when presented to how he gets along with his fam- might note that many of the items properly, In Nurnberg, Germany, ily and friends, open ended opin which appear to be peculiar to the about six years ago, I saw another ions as to what kind of person he military would also have civilian defense lawyer present a sentencing is, whether he’s a hard worker, counterparts. It can correctly be case where the defendant was con whether he Is courteous, kind, obe said that the possibilItIes are victed of murder, but for his pun dient, brave, or generous, etc. only limIted by your ImaginatIon. ishment he was reduced two grades Such evidence can, and frequently in rank and fined five hundred dol does include specific incidents INSTRUCTIONS lars. Not only that, but the Court- which help to Illustrate favorable MartIal panel felt good about their traits in the accused. I have list This is not an article about in- decision when they left the Court ed below a partial list of some structlons, however, It should be room. I have both seen and partIc specific types of evidence which evident that there are some in Ipated In numerous other Courts- have been ruled admissible in ex structions which are essential If Martial which resulted in sentences tenuation or mitigation: you want the jury to give your sen which would have seemed unusually tencing evidence a fair conside small based upon a Hsentence should ration. if you want them to consi fit the crime only" theory. -Acquittal of Accomplice der the evidence In mitigation and -Commander’s desire to have accused extenuation as well as the crime It is Important to show the Jury returned to his command itself in settIng the sentence, that the defendant Isn’t Just some -Commander’s recommendation as to then they must be told that they scumball crIminal, but that under whether accused should be retained are required to consider evidence normal circumstances he is a pretty In service presented by the defense In extenu- good fellow. The jury will listen -Economic situation of Accused’s atlon and mitigation as well as any to evidence of this type, and when family evidence in aggravation presented the crime Is not the type to drive -Favorable aspects of Accused’s by the prosecution. To protect all possibility of sympathy for the Prior Military Service against them sentencing based on defendant from their hearts, they -Guilty Plea as a mitigating factor parole eligIbility they must be will respond to It. With that In and also a reject offer by the told that they must adjudge a sen mind, let’s begin the task of di accused to plead guilty tence which will be fair if served recting the Kentucky law In regard -Health of the Accused in its entirety and must not ad to sentencing in the direction of -Mental Condition of the Accused judge a harsh sentence based on protecting defendant’s rights and -Diminished Capacity considerations of possible future receiving truly fair sentences. -Non-violent nature of the Accused sentence mitigation. And certain Hopefully, we will succeed so well -Pre-trial restraint of the Accused ly, they need to be told by the that a few years from now it will -Psychiatric Condition of the Ac judge that the law considers the be the prosecutors who are wonder cused at the time of the trial appropriate sentence to be the ing if it’s possIble to return to -Recommendations as to Accused’s smallest sentence which will ade the old rules. supervisors in regard to his po quately serve both the needs of so tential for Rehabilitation ciety and of the defendant. -Restitution also Instructions to the accused not to make rest itu- CONCLUS ION t ion WAEN A. TAYLOR -Satisfactory Performance of Duty I hope that this article has been Attorney at Law -Service Awards helpful to you In stimulating new P.O. Box 1588 Statement of the Accused Ideas about presentIng a sentencing Hazard, Kentucky 41701 not subject to cross-examination hearing. Obviously, in many cases, 606 436-6066 -43- 202B Investiation Rita Ward The courtroom scene looks like has a right to a Jury trial with client cooperative during a long this: the prosecutor representing the Comnonwealth being required to court hearing. These visits also the Commonwealth at one table, the prove each element of the need for allow the attorney to witness for respondent’s attorney with her cli hospitalization beyond a reasonable herself any abilities or disabili ent at the other, the Judge, and a doubt. KRS 202A.0762. In order ties the client may have. Mental Jury. Sounds like a typical court to commit a person to the hospital, retardation professionals acknow room scene, right? The difference the Commonwealth must prove that: ledge that even the most profoundly Is that the client who will be cal 1 she is mentally retarded; 2 she handicapped person can be served In led "Mary" is a person who is men presents a danger or threat of dan the community. Knowledge of a cli tally retarded. Mary has an 19 of ger to self or others; 3 the least ent’s needs will help the attorney 35, placIng her in the severe range restrictive mode of treatment re question the professional witness of mental retardation. She is 40 quires placement in a hospital or regarding out-patient programs years old, but has the adaptive mental retardation treatment cen needed for the client. Many of the skills of a 4 year old. She can ter; and, 4 treatment that can progrmes available in a hospital feed herself finger foods, can hold reasonably benefit the individual are also available on an out a cup, can dress herself with as is available in the hospital or patient basis. sistance and is toilet trained. mental retardation treatment cen She has no communication skills and ter. KRS 2028.040. As in any cri The attorney should attempt to see makes little or no eye contact. No minal trial, placing doubt upon 1 as much of the facility as feasible relative or friend has stepped for of these criteria is the key to during the visit to the client ward to assume her care in their winning a 202B hearing. including the client’s room and home since the recent death of her work area. Having another person mother with whom she had lived her In a 202B hearing, there is very on the tour would allow the attor entire life. No money was avail seldom reasonable doubt that the ney to call this person as a wit able for a community placement such client is mentally retarded. Men ness at trial to describe the as an adult foster home, supervised tally retarded individuals who are facility objectively. The Jury apartment, or group home, A peti profoundly and severely retarded needs to know that the facility to tion has been filed in district will always be dangerous to them which they are being asked to com court seeking to place the client selves because they will always mit the person is a hospital, an in a hospital or mental retardation need 24 hour supervision. The need institution, and not a home. treatment facility for 1 year. for 24 hour supervision, however, does not prove a need for institu The law requires more of a facility As a result of Judge Allen’s deci tionalization. Most mentally re than merely providing a place for sion in the case of Doe V. Austin, tarded individuals in institutions the mentally retarded individual to 668 F,Supp., 597 W.D. Ky., 1986 do not need institutionalization, live. The facility must give the which was recently affirmed in they need a home. mentally retarded individual "a re pert, reversed in part by the Sixth alistic opportunity to improve his Circuit, all mentally retarded in The starting point of an investiga- level of functioning consistent dividuals over the age of 18 years ,tlon for a 202B hearing is to visit with accepted professional practice have a right to a hearing prior to the client. As with any client, * * *1I KRS 202A.0l17. Thus, the commitment to an instItution for visiting even a profoundly retarded client must improve while at the the mental ly retarded operated by client can help develop rapport facility In order for benefit to be the state. A person such as Mary that may be useful in keeping the shown. The facilities are required -44- to develop an outlined on I.P.P. or Individual the I.P.P. The client and fInd out what efforts have been Program Plan for each resident in who is functioning at a 4 year old made to secure a less restrictive the facility. The I.P.P. outlines level may be displaying behavior placement, problem areas observed in the cli typical for a 4 year old. The law ent such as a need for toilet yer should note how the hospital The trend in the field of mental training and how the facility in disciplines transgressions by the retardation is away fran institu tends to treat the problem, Old client. Is the hospital’s response tionalization and toward community school records, if available the response a parent would have placement, Qualified mental retar through the hospital or school, can for her 2 year old child? Is the dation professions will verify that be utilized to compare what the f a- client disciplined or given a shot almost any person, regardless of oilily wishes to accomplish with of medication such as a tranquili handicap, can be served In the com the client and what has been at zer? Juries are usually interested munIty. The exception would be tempted in the past. Psychological In these arguments as they pertain the extremely violent. They will evaluations should give an indica to the facility being the least re say further that they could provide tion of what realistically can be strIctIve mode. services for person th the commun expected for the client to accom ity that are presently being provi plish based upon his Intellectual Facilities may use medications such ded in instItutions if the funding level. Any mental retardation pro as antipsychotic medications and was available. Funding for nonin- fessional will testify that there tranquilizers to control the beha stitutional care for the mental ly is no cure for retardation and that vior of their mentally retarded pa retarded Is primarily done through any progress a particular client tients. The Physician’s Desk Re the Alternative to Institutional will make will be minimal. All of ference will provide needed infor Services for the Mentally Retarded this information should provide mation regarding the use of these or AIS/MR program. This program fuel for argument that placement in medications and the adverse side allows medIcaid benefits to be used a facility will not be a benefit as effects they may have. for mental ly retarded persons out defined under the law but merely side of institutions. Unfortunate provide her with a place to live. The psychologicals, social hIstor ly, the assessabillty to these ies and progress notes are kept In funds is limited. There are 14 comp A psychosocial history is developed the chart that the hospital keeps care centers serving separate areas on each resident at the facility. on each resident. The attorney has of Kentucky. Seven County Ser This is composed by the social a right to access to these charts vices Is the comp care center for worker and contains background in and any past records from prior Jefferson and surrounding coun formation on the client such as hospitalizations on her client and ties. Each comp care center has prior hospitalizations and family the attorney should review these been allotted a certain number of background. In Marys case, the prior to court. - AIS/MR "slots" to be utflized in psychosocial would provide the in its particuiar region. The slots formation about her living at home Before any person may be permanent are allotted in clusters of 45 of for 40 years until the death of her ly placed in an intermediate care which 25 may be used for residen mother, it should also state whe facility for the mentally retarded tial care. Each residential slot ther Mary has a source of income run by the state, her applIcatIon allows for $25,000 per year of med such as Social Security and whether must be processed and approved by icaid funds to be used for out other family members are involved the Comprehensive Care Center serv patient treatment for the person with Mary. Evidence that a person icing her home county and then ap filling that slot, A residential lived at home for 40 years certain proved by the Division of Institu slot allows the service provider to ly buttresses the argument that tional Care of the Cabinet for Hu secure the client a home outside of hospitalIzation is not the least man Resources in Frankfort. Before an institution. While $25,000 may restrictive form of treatment and approving a person for Institu seem like a large expenditure, It that Mary needs a home, not insti tional care, the local comp care is far below the annual cost of In tutionallzation. must be able to certify that no stitutional care. Each camp care less restrictive form of treatment center handles its own slots inde Daily progress notes are kept by exists. In preparing for a 2028 pendently of others in the state the nursing staff indicating the hearing, an attorney would do well and uses them for the people within client’s behavior on the ward and to review the records of the comp their service area. Slots general progress in attaining the goals care center servicing her client ly may not be transferred between -45- comp care centers but nothing indi should attempt to discover why and ally "won" on behalf of the men cates that clients cannot be ser whether cente the refusal to tally retarded client but the cli viced outside their home area. serve complies with medicaid re ent does win through judicial re Hopefully, in the future, slots quirements for the AIS/iR program, view and by making all parties may be transferred from 1 area to accountable for their treatment of another. For example, Seven Coun The local comp care workers have the mentally retarded. Mary may ty Services has 90 AIS/MR slots, information regarding the types of not go home or to an AIS/MR slot all of which are presently In use. programs and living arrangements today but, hopefully, by the time Both the Pikevi lie and Hazard areas that can be developed with AIS,’MR her case comes up for review agaIn, have been allotted 45 slots each, funds. Protection and Advocacy with more money will be available so all of which are not presently in the Department of Public Advocacy that she can be served in the use. A fruitful area for question can provIde answers to many ques community where she has lived for ing by an attorney when statements tions regarding what services are so many years. are made at trial that not less re available both in a particular com strictive treatment exists is whe munity and statewide. ther all 14 camp care centers in the state were notified concerning The disability of a client requires Rita Ward possibie AIS/MR openings. No law advocacy skills different than may Louisville Public Defender says that a mental ly retarded indi be required for the criminal defen Mental Inquest Division vidual from Louisville must live in dant. Those disabilities do not 200 CivIc Plaza Louisville. if a local comp care lessen an attorney’s responsibility 719 West Jefferson refuses to service a client because to advocate zealously for her, cli Louisville, Kentucky 40202 of her handicap, the attorney ent. Few of these cases are actu- 502 625-3800 Protection and Advocacy Updating Referral Service Listing The Kentucky Protection and Advo please contact Ava Crow, Protection accept cases - under fee-shifting cacy Division P & A is an Inde and Advocacy, 1264 Louisville Road, status. pendent agency located in the De Perimeter Park West, Frankfort, partment of Public Advocacy. The Kentucky 40601. Please Indicate Also, please Indicate whether you agency provides legal assistance to the level of experience vc-i have in want P & A to simply give- the Kentucky citizens with development client your name, or whether you al disabilities and/or diagnoses of prefer to have P & A call you to mental impairments. The office fre discuss the facts of the case prior quently receives requests for legal to the referral. assistance with cases that range fran routine matters such as di Attorneys who wish to be considered vorce and property questions to for this referral service must show discriminatIon or other civil evidence of having professional rights claims against public and liability insurance coverage. private entities Many of these cases involve fee-shifting sta tutes, Ava Crow Attorney P & A is updating its list of Protection and Advocacy Division attorneys who are interested in persons wrh disabil 1264 Louisville Road accepting referrals fran P & A. If ities and/or mental health diagno Perimeter Park West you wish to be placed on a referral ses, the types of cases you handle, Frankfort, Kentucky 40601 list or need further Information, and whether you are wit ling to - 502 564-2967 -46- Don’t Read This... And If You Do, Don’t Consider It By Thomas Hayner, Staff Attorney A recent American Bar Founda nothing was found. The remain is at stake. tion ABF study has confirmed ing third were not told the out what many trial lawyers have come of the search. The ABF study confirms the com known, or suspected for a long mon belief in the benefits of re time; cautioning a jury to disre Where the juries heard that solving evidentiary and suppres gard incriminating evidence is damaging evidence was found, sion issues by pretrial motions. like telling them to ignore the the juries were admonished by Pretrial motions to suppress and pink elephant that just walked the court to ignore that motions in limine not only may into the back of the courtroom. evidence, according to the New prevent the jury from hearing the York Times report on the study. evidence, but also tend to avoid The ABF did the test of the effec [Whether drugs were found is inferences and speculation as to tiveness of a judge’s admonition irrelevant to the merits of the what the excluded evidence in the context of a mock Fourth claim that civil rights were might be. Pretrial resolution of Amendment damage action violated, of course.] these issues also tend to reduce against law enforcement officials the need for inessential objec for in the jury. unreasonable searches and Despite the admonition, where tions front of seizures. See Bivens v. SixUn jurors heard, for example, that Objections feed the negative im Named Agents ofknownthe heroin was found, they awarded age of defense lawyers as ob F.B.I. 1971, 91 S.Ct. structionist. Note, however, that 403 U.S. 388, damages only 38% of the time. 1999,29 L.Ed.2d 619. orders in limine are not final, and In contrast, where there was that you still must object at trial. testimony that nothingwas - Ind., 442 To measure the effectiveness of found, plaintiffs were, awarded Davidson v.State 1982, instructions to "disregard what N.E.2d 1076. -. you have just heard," Foundation damages in 61% of the cases, and researchers took 535 potential where the results of the search Of course, while many of the bet Cook County jurors and/or were not revealed, the plaintiffs ter opportunities for criminal de volunteers, and won 62% of the cases. FreqUency fense counsel to make inroads in student of punitive damage awards was separated them into three the to the prosecution’s case are in groups. They were again divided also dependent on whether the areas of Fourth, Fifth and into juries and heard the same jury heard damaging evidence. Sixth Amendment-based motions case, with certain important dif to suppress, garden variety objec ferences. The bottom line for criminal de tions privilege, etc. are also fense lawyers is that a judge’s ad grounds for motions in limine. One-third of the juries were ex monition will not undo the dam posed to testimony that the ille age done by "incompetent" evi The study is to be published in gal search, which was the basis of dence the jury hears. And if jur the May issue of the American the civil rights action, had turned ies are influenced by such evi Bar Foundation publication, Law up heroin or other drugs, or dence in civil damage cases, it’s SocialInquiry.and murder evidence. A third of the undeniable they will be so influ juries heard testimony that enced where criminal culpability Defender, May 1988. Indiana Reprinted with Permission -47- Ask Corrections Betty tou Vaughn then cORRECTIONS: not contain such Information, 439.3401 asTO there was no serious Offender Records would obtain such physical injury or death involved Presentence My client was recently sentenced on information f ran the in the crime. Report. the charge of Kidnapping for a Investigation crime committed after July 15, All questions for this column CORRECTIONS: TO 1986, how long will he have to should be sent to David E. Norat, serve before becoming elIgible for Director, Defense Services Divi was sentenced to 10 years parole consideration? My client sion, Department of Public Advoca on the charge of criminal attempt cy, 1264 Louisville Road, Frank- crime did READER: to commIt murder, if the fort, KentuckyTO 40601. if you have not involve any serious physical questions not yet addressed In this would my cli either If the crime of Kidnapping involved Injury or death, when column, feel free to call parole consi- serious physical injury or death ent be eligible for Betty Lou Vaughn at 502 564-2433 ion? at 502 564- and he received a LIFE sentence it derat or David E. Norat would fall under the provisions of 8006. READER: TO KRS 439,3401 Violent Offender Sta tute and your client would have to Your client would have to serve 2 Vaughn serve 12 years minus jail time be Betty Lou Jail time before becom Supervisor fore becoming eligible for parole years minus Offender Records eligible for parole consi Department of Corrections consideration. If your client re ing deration, as the crime would not Kentucky 40601 ceived a sentence of a definite Frankfort, under the provisions of KRS number of years and It fell under fall 502 564-2433 the provisions of KRS 439.3410 he would have to serve 50% of his sen tence minus Jail time before becom Ing eligible for parole considera tion. If the crime did not Involve serious physical injury or death then your client’s parole eligibil ity would be calculated under pa role regulations 501 KAR 1:011, which use the 20% of time served criteria. CORRECT IaIs: TO How does Offender Records know if there was serious physical injury or death involved in the crime? TO READER: If the Judgment of conviction did -48- Cases of Note...In Brief Ed Monahan RIGHT TO COUNSEL/POLICE Expert testimony that the def en- DISQUALIFICATION OF PROSECUTION EAVESDRCPP IPIG dant, who was charged with second OFFICE v,Mattatall, degree murder, suffered from a di John StateW. Potter v, Commonwealth 525 A.2d 49 RI 1987 minIshed capacity was admissible to Ky., April 28, 1988 negate intent. unpublished The United States Supreme Court re manded this case to the Rhode Is At his 1985 capital trial, the de land Supreme Court to reconsider In DUI/DOUBLE JECPAIY fendant, White, was represented by light of Kuhlmann v. Wilson, 106 - Commonwealth Ray Clooney, a Jefferson County S.Ct. 2616 1986 on the issue of Ky.App. Feb, 12, 1988 Public Defender who later became an whether the defendant’s 6th amend unpublished Assistant Commonwealth Attorney. Court reversed ment right to counsel was violated The Kentucky Supreme this DUI, second conviction and sentence of by the police in listening to tel The trial court in White’s public ephone conversations between the offense, case declared a mistrial death. On retrial, White’s disqualify the defendant and John Carney relating when In opening statement the de defender moved to Common to the death of the victim. fense attorney stated that the entire Jefferson County defendant would testify that he has wealth Attorney Office due to to have his drivers license in his Clooney’s employment with them. Carney complained to the police work. On discretionary review, the judge in this case con that he received threatening calls Court of Appeals held it improper The trial hearing and from the defendant. The police went for the trial judge to declare a ducted an extensive even findings on the disqualifica to Carneys house and with his con mistrial based on this remark, made request and ordered the exclu sent listened in on phone conversa assuming the remark was improper, tion prosecution of tions between Carney and the defen and that the defendant’s second sion of the entire In so deciding, the trial dant. Carney initiated the conver trial violated double Jeopardy. fice. that Ciooney had not sation about the victim during Judge found informa which the defendant made incul divulged any confidential patory statements. The eaves DUI/TEST WIThOUT WARRANT tion to any prosecutor. dropping occurred after the defen PRIOR TO ARREST - petitioned the dant was arraigned and represented Commonwealth v. George S. Martin The Commonwealth Appeals for a writ of pro by counsel. Ky.App. June 3, 1988 Court of unpublished hIbItion. That Court granted the the The Rhode Island Supreme Court ru writ, and White appealed to This case came to the Court of Kentucky Supreme Court. The Court led the incriminating phone state Discre Court of Appeals and ments of the defendant were Inad Appeals on a Motion for reversed the Commonwealth. judge’s order of missible since the 6th amendment tionary Review by the affirmed the trial held the admission of disqualification. right to counsel was violated due The Court test In to the fact that Carney was more results of a blood alcohol prosecution under KRS P4onahan than a "mere passive listener." a criminal Edward C. 189A.O10 administered without a Assistant Public Advocate DIMINISHED CAPACIfl’ warrant prior to arrest was a vio Director of Training State v. Hill, lation of the 4th amendment and Frankfort, Kentucky 744 P.2d 1228 Kan. 1987 Kentucky’s Section 10. 502 564-8006 -49- DPA Motion File MOTIONS COLLECTED, CATEGORIZED, LISTED The Department of Public Advocacy has collected many motions filed in criminal cases in Kentucky, and has compiled an index of the categories of the various motions, and a list ing of each motion. Each motion Is a copy of a defense motion f lied FILE IN FIELD OFFICES other attorneys in other individual in an actual criminal case in cases. Each motion must be com Kentucky. We have a complete set of all no pletely reviewed, and updated and tions in each of DPA’s field of IndividualIzed for your particular fices, including Lexington, Louis client. COPIES AVAILABLE ville, Boyd County and Covlngton. Call the director of those offices SEND US YOUR MOTIONS A copy of the categories and list for access to their copy of the Ing of motIons is free to any pub file. The motion file is only as good as lic defender or criminal defense the motions we receive fran attor lawyer in Kentucky. Copies of any USE OF THE MOTION FILE neys practIcing criminal defense of the motions are free to public work throughout the state of Ken defenders in Kentucky, whether In using the index of categories tucky. Please send us any motions full-time, part-time, contract, or and listing of motions, make sure that you think should be Included conflict. Criminal defense advo you look under multiple categories in the file in the future, This cates can obtain copies -of any of when searching for sample motions concept of collecting and dissemi the motions for the cost of xerox- since many of the motions could nating good motions only works well ing and postage. have been categorized in more than if each of you give us your motions one way. We have attempted to cate to share with others. HOW TO OBTAIN COPIES gorize them in only one way. For instance, challenging the admissi OTHER SOURCES If you are interested in receiving bility of a prior offense in a an index of the categories of no truth-in-sentencing proceeding Do not forget the many good arti tions, a listing of the available could be categorized under the cat cles on motion practice in The motions, or copies of particular egory of "truth-in-sentencing" or Advocate, as listed in The Advocate motions, contact: under the category of f"prior of cumulative subject index. fenses." We have categorized it Tezeta Lynes only under prior offenses. DPA Librarian 1264 Louisville Road ONLY SAIFLES: LPDATE Edward C. t4onahen Perimeter Park West AND INDIVIDUALIZE Assistant Public Advocate Frankfort, Kentucky 40601 Director of Training -502 564-8006 Of course, the motions are meant Frankfort, Kentucky 40601 Extension 119 only as samples of motions filed by 502 564-8006 -50- Book Review pected liar and about the situa tion. In Telling Lies Dr. Ekman does not simply relate interesting anecdotes about deception, Ultimately, the book is a very thorough and scien tific exploration of how and why people lie and how those lies can be detected by observi ng the choice TELLING LIES of words, tone of voice, movements by Dr. Paul Ekman fessed to the crime and Anderson of the body, and particularly the W.W, Norton Co., 1985 was absolved of any guilt. face. He even provides an appendix 500 Fifth Avenue which includes a check list to as New York, New York 10110 Anderson was Innocent but the po sist in determining whether a lie $3.95 paperback lice believed he had committed the Is being told and provides sugges crime and had made It clear to him tions on how an interrogator can Gerald Anderson was accused of the that they did. Accordingly, Ander- more easily detect lies by the rape and murder of his next door $fl5 fear of being disbelieved led formulation of his questions and neighbor. The day following the ho to his failure of the polygraph ex prefatory remarks. Ekman also dis mIcide Anderson did not go to work amination which does not actually cusses the use of the polygraph in but drank heavily at a local bar detect lies but only emotional criminal cases and the marketplace while talking about the crime. Once arousal and his interrogators used condensing and contrasting a number home, he was overheard by someone the weight of their own convictions of Interesting studies which have telling his wife in tears, "I about his guilt to force him to been done on the subject. didn’t want to do it, but I had give up his claim of Innocence. An to." He became the prime suspect of derson also confided after he was In the legal world the question of the police. exonerated that he had felt guilty whether a person Is prevaricating and ashamed because when he had en is always of prime importance. Tel- A spot of blood was found in Ander tered his neighbor’s home immediate jj Lies, although not providing a son’s car. He claimed that it had iy after the homicide wIth her hus foolproof method for determining been there when he purchased it; band he had admired her nude body. deception, allows anyone seeking however, he later admItted that the truth in any situation to come during an argument he had slapped In Telling Lies, Dr. Paul Ekman, a at least a little closer to that his wife and caused her nose to professor of psychology at the Uni goal. TellIng Lies is not only in bleed. Anderson also admitted to versity-- of California, concludes structive but also entertaining the police that at age twelve he that Anderson’s Interrogators made since Dr. Eckman has done an excel had committed a minor sex offense what he calls an "Othello error." lent Job providing real and famili but It later came out that he was As you probably know, Othello in ar examples for many of his poInts. actually fifteen at the time. terprets Desdemona’s panic at Cas- An account and analysis of how sb’s demise as confirmation of her President Kennedy handled meetIngs Anderson submitted to a polygraph infidelity rather than that she with Soviet representatives during examination. The examination showed might be Innocent and is panicked the Cuban MIssle Crisis knowing deception concerning questions of by the loss of her last hope of beforehand that he had been deceiv guilt. The polygraph reinforced the proof of her innocence, Othello is ed Is particularly amusing. Tell- belief of the police that Anderson already convinced that Desdemona Lies is truly well worth read was the culprit. Anderson was In has been unfaithful. ing. Trust me. terrogated for sIx days and ulti mately confessed. He actually be One of Dr. Ekman’s primary points came convinced that he had com in Telling Lies is that in attempt Randall L. Wheeler mitted the crime and had simply ing to determine whether someone is Assistant Public Advocate lost his memory of the incident. trying to deceive, the evaluator Appellate Branch Seven months later the true killer must never forget to consider his Frankfort, Kentucky 40601 charged with a similar offense con- own preconceptions about the sus- 502 564-8006 -51- McNally continued from page 2 dIctory feelings many have about as well as financial. Prosecu Kevin’s leaving, "It is with mid tion of a single appeal on be have been without the benefit of emotions that I confront your res half of a person on death row the reassurance and caring of Ignation. I’m happy -for you and frequently Involves months of Kevin’s guiding hand. Judges would sad for us." exhausting, seemingly futile be less sensitive to valId legal effort. One lawyer has describ Issues, Even the families of vIc As Kevin leaves DPA, it is appro ed the process as a ‘self-lac tims would have suffered more with priate to reflect on the comments erating investment of time and out devotion to the sacred of Justice Thurgood Marshal I about energy.’ To the attorneys will ness of all life. Certainly, the the extreme importance of people ing to make such investments, lives of those of you who work wIth like Kevin who have selflessly com again and again, I wish to ex Kevin would be different, too. Per mitted so much to the least in press my admiration and thanks. haps your lives would be a bit more society: calm and routine, but that special Our thanks, too, Kevini spark ard drive that Kevin supplies The attorneys who currently are would be missing." shouldering our collectIve bur- Ed Monahan dfn deserve our gratitude, not Assistant Public Advocate our scorn and not simply our Director of Training Suzy Post of the Kentucky CIvil Li tolerance. They are making e- Frankfort, Kentucky 40601 berties Union expressed the contra- normous sacrifices -- emotional 502 564-8006 iL person with a dream.. . holds out to others better alternatives, real alternatives, hopeful alternatives, so complete in their number that one can expend a lifetime in their pursuit and in the hope of their accomplishment’ Anthony Padovano, in Dawn Without Darkne8s The Advocate Bulk Rate Public U.S. Postage Department of Advocacy PAID Perimeter Park Fthnkfort, KY 1264 Louisville Road 40601 Frankfort, Kentucky 40601 Permit No. 1 I I ADDRESS CORRECTION REQUESTED