‘ THE ADVOCATE Vol. 8 No. 1 A BiMonthly Publication of the DPA December,1985

THE ADvocATE FEATURES Legislat Update

The 1986 General Assembly could be a very exciting session because several very important criminal justice is sues are on the agenda. However the legislature resolves these issues, they could drastically, change the practlce of criminal law. Of course, adequate funding for the public ad vocacy system is our department’s BOB CMMISAR major objective for this session, but in t1is article I would like to dis Bob Caummisar, Carter County Public cuss some of the non-budget issues. Defender Administrator, has served in that capacity since 1980. A former PFO AND OVBPCROWDING Executive Director of North Eastern Kentucky Legal Services,, he was one There is no relief in sight for the of the Services three founding’ overcrowded condition of Kentucky’s attorneys. ob is credited with first prison system and this will neces using the insanity defense in Carter sitate that the legislature consider County. The defendant, a former revising ‘Kentucky’s persistent felony Eastern State Hospital mental pa of fender statute and raising the $100 tient, having been released earlier threshold level for felony theft than his commitment expiration date, óffE"’i’iSéS over one hundred dollars. pulled up to a car in a parking lot The combination of Kentucl4r’s ex and killed the man in the car next to tremely broad persistent offender him. Bob made the jury aware of the statute which allows for incar man’s mental defect, and the defen ceration for ten years for $100 theft dant received a two year sentenc. offenses has made the largest contribution to Kentuky’s over Bob received an acquittal in a case crowded prisons. The study conducted where a son shot his father. Bob by the Urban Studies Center of the utilized a spouse-abuse relate syn University of Louisville for Ken drome defense. The man had continu- tucky’s Statistical Analysis Center on Kentucky’s persistent felony of Continued on page 40 fender population determined that 64.5% are incarcerated or property ______TIPS.

IN THIS ISSUE

EDITORS PAGE

Edward C. Monahan LEGISLATIVE UPDATE. .. .1,3,4 CrIs Purdom SUGGESTED WORK-RELEASE...... 5 CONTRIBUTING EDITORS WE S REVIEW...... 7-1 0 Linda K. West Kentucky Supreme Court...... 7-10 West’s Review McGeehee Isaacs Brayv.Commonwealth .7 Post-Conviction v.Commonwealth...... 7Gray Kevin M. McNally v. JordanCommonwealth.. 8 The Death Penalty v.Commonwealth.... Roney... .8 Gayla Peach Busseyv.Commonwealth...... 8 Protection & Advocacy Commonwealth v.Peacock...... 9 J. Vincent Aprile, II Commonwealthv.Steiber...... 9 Ethics Commonwealthv.Thompson...... 9 Michael A. Wright Kentucky Court of Appeals...... l0 Juvenile Law v.Commonwealth.....Fortney .10 Donna Boyce Sixth Circuit Survey Commonwealth v.Thacker...... 10 Ernie Lewis v.Commonwealth...... 10Basham Plain View Patricia Van Houten PROTECTION AND ADVOCACY...... 11-12 Book Review POST-CONVICTION, LAW & COMMENT * 13-18 THE DEATH PENALTY...... 19-21

The Advocate is a bi-monthly publication of the SIXTH CIRCUIT HIGHLIGHTS...... 22 Department of Public Advocacy Opinions expressed THE PLAIN VIEW ...... 23-27 in articles are those of the authors and do not Benge v. Commonwealth. . 23 necessarily represent the views of the Department. Byrd, et.al v. Commonwealth...24 Changed or incorrect address? Receiving two Youman v. Commonwealth...... ,.24 copies? Let us know: Simmons v. Commonwealth...... 24 State v. Jewett...... 25 NAME v.Commonwealth...... 25Maddox StatesUnited v. Lambert 26 ADDRESS v.Kimbro...... 26State v.State...... 26Crittenden Commonwealth v.Borges...... 26 v.Bertine...... 27People The Advocate welcomes correspondence on subject Re Bobby, In RaymondB...... 27 treated in its pages. v. Nunez .. .. DeMassa...... 27 v. State SuperiorCourt...... 27 States v.UnitedMiller...... 27 v.Snow...... 27Blackburn DEPARTMENT OF PUBLIC ADVOCACY 151 Elkhorn Court Frankfort, KY 40601 TRIAl. -Government Actions Against Office Receptionist 502-564-8006 Appellate Branch 502-5M-5234 Lawyers...... * . 28-32 Investigative Branch 502-564.3765 -Forensic Science N ws...... 33 Post-Conviction Branch 502-564-2677 -Interview of Sexual Abuse

Protection & Advocacy 502-564-2967 Victims . . . * ...... 34-36 Major Litigation Section 502-564-7391 -Cases of Note, In Brief...... 37-38 ‘flaming Services 502-564-5258 ibti Free Number 800 372-2988 for messages only. NO COMMENT...... 39

2 offenses. A study conducted for the Program Review Committee of the Legi t glative Research Commission on Ken tucky’s persistent felony ‘offender found that the $100 threshold for felony theft offenses is one of the lowest in the nation and is 1/3 of the national average property value for felony theft, which is $335.

The legislature is faced with chang ing these two statutes or building several new prisons over the next several years.

H4E INCARCERATION PAUL F. ISAACS Another legislative proposal on the agenda which is related to jail overcrowding is a bill to permit home P & A BILL OF RIGHTS incarceration in nonviolent misde meanor and possibly felony cases. The department will be working close This proposal allows a judge to sen ly with Kentuckians Together, Inc. tence a defendant to serve his term a self-advocacy consumer coalition, of incarceration within the walls of the Protection and Advocacy Advisory his home except to go to work, Board, and Parent and Consumer Net school, or church. An experimental works for a state Bill of Rights for program for misdemeanors is being persons with developmental disabili tried in Kenton County and a bill to ties in order to assure our clients expand the concept statewide will be that they will receive the services* introduced in the session. they need in order to fully par-, ticipate as citizens of our society. P1 AND JUVENILE CODE A similar bill was introduced last session and the department is com Two proposals which have already mitted to the adoption of this pro passed the General Assembly but have posal. had their effective dates delayed are expected to be considered again this SENTENCING term: decriminalization of public intoxication and the juvenile code The department intends to push for revision. Decriminalization of public legislation which returns to circuit intoxication will reduce public ad judges the power to determine whether vocacy cases to some extent, but the a person convicted of a felony com new juvenile code, if passed in sub mitted while on parole, probtiäñ, stantially the same form as earlier shock probation, conditional dis versions, would increase the c.se- charge or while awaiting trial on loads of public advocates. The another offense should serve the earlier version of the new code sentence given concurrently or con definitively established the duty of secutively. The department believes the department to represent children that the trial judges throughout the in status offense cases, in cases Commonwealth should have the ability involving dependency and neglect pe to tailor the sentence to appro titions, and in terminations of pa priately fashion a remedy in each rental rights cases. case.

3 DUI SERVICE FEES MENTAL HEALTH

Another departmental proposal is to Two mental health issues which will C include the department as one of the be considered. in the next session recipients of the service fees include: the problem of getting corn imposed in the drunk driving statute. petenc,y determinations in criminal Increasingly, the department is re cases in a reasonable amount of time quired to represent indigent clients and expediting involuntary commitment under Kentucky’s new drunk driving proceedings without violating due statute because incarceration is process in order to remove indi possible for first offenses and man viduals incarcerated under mental datory for second and subsequent of inquest warrants from our jails. fenses. All other agencies which are Specific proposals are being de required to provide increased ser veloped concerning these issues and vices under this act enforcement, should be watched. jails, record keeping, treatment, and education programs are allowed to CONCLUSION receive part of the service fee. The increased demand on the department All of us who are interested in the created by this statute entitles us criminal justice system should follow to a portion of the service fee. closely the proceedings of the 1986 General Assembly. The department will VICTIM’S BILL OF RIGHTS keep you informed as these issues, and others develop during the ses The Attorney General’s office is sion. In the January edition of The working on a Victim’s Bill of Rights Advocate, we will publish an update statute. At this point, there is no on current issues in the legislature. public draft of the bill so we will have to wait to see what specific proposals the bill contains. Although PAUL F. ISAACS victims of crime should be treated PUBLIC ADVOCATE with respect and dignity in the criminal justice system, too often * * * * * * these bills have been camouflaged attempts to dilute the defendant’s rights in the name of victim’s NLADA Looks into Harrassment rights. This legislation should be of Defenders watched carefully in order to assure that it addresses only victim’s NLADA’s Defender Committee has formed rights and does not attempt to di a subcommittee to investigate cases minish the defendant’s rights. where harrassment of defense attor neys has had an impact on effective SEX OFFENDERS representation. This was in response to governmental attempts to compro During the legislative session, there mise the defense function. The sub will be some consideration of legi committee is currently putting to slation relating to the treatment of gether a fact sheet to be distributed sexual offenders. The department will to the Defender Committee. For more be closely monitoring this legis information on *NLADA’s efforts in lation to ensure that the defendant’s this area, contact: John Moran, 210 rights are protected and that any new We Illinois Street, Chicago, Illinois proposal encompasses new sentencing 60610 or call 312 670-0312. NLADA alternatives for judges and not Cornerstone, March/April 1985, p. 4. another mandatory sentencing statute. L

4 Plan Suggests Felon As an example, the LaGrange State Work-Release Program Reformatory, built in the late 1930s during the first administration of was built FRANKFORT - State Rep. Joe Meyer has Gov. A.B. "Happy" Chandler, proposed changing the state consti by prison labor as a public works tution to allow jailed felons to take project.,. part in a work-release program. Under work-release laws approved for The plan would permit the General misdemeanor offenders housed in local Assembly to establish guidelines re jails, participants in the program lating to work release, which is leave at an established time to go to viewed as a means to establish a work and return to jail when the workable way of providing some com day’s work is complete. The program pensation for crime victims. allows the person to keep his job and continue to provide for his family. Felon work release was first con sidered in August 1984 by Gov. Martha Meyer contends that a constitutional Layne Collins’ Task Force on Prison change to permit felon work release Options, of which Meyer, a Covington would allow offenders to get a job, Democrat, was a member. The task earn money and make monetary resti force was charged with formulating a tution to those affected by their plan to deal with the state’s criti crimes. "Passage of this bill would cal prison overpopulation problem. put us in a posture where we can de The special session of the General velop an effective restitution pro Assembly that met in July dealt with gram for felons," Meyer said. "It is a portion of the task force recom appropriate we develop a restitution mendation when it committed itself to program to enable the victims of approving a new, 500-bed, medium- crime to be paid back. We want to security prison during the 1986 send the clear message that crime session. doesn’t pay."

Lawmakers will consider the felon The Kentucky GeneralS Assembly at one work-release program, along with time had a restitution program, en several other task force recommenda acted during early ‘70s under the tions, beginning in January. Work administration of Gov. Wendell Ford. release presents a special problem But the constitutionality of the since voters will have to approve a program was successfully challenged change in the state constitution to in court by state Attorney General Ed have it implemented. Hancock.

According to state law, those con -Reprinted by permission fined to the state penitentiary Kentucky Post "shall be confined at labor within 1 0-1 8-85 the walls of the penitentiary." The legislature doesn’t have the power to * * * * * * authorize prison labor except for public works projects, during a ALL THAT IS NECESSARY FOR THE FORCES period of pestilence, or when a OF EVIL TO WIN THE WORLD IS FOR prison building has been destroyed ENOUGH GOOD MEN TO DO NOTHING. and there’s no place to house the prisoners. Edmund Burke, 1729-1 797.

5 DEFENSE OF SEXUAL ASSAULT CASES

Over 100 persons attended the one-day seminar held at the Marriott Griffin Gate Resort in Lexington, Kentucky, September 23, 1985. Faculty included: Cynthia Dember, Robert Lotz, Vince Aprile, Tom Hectus, John Schrader, and Michael Nietzel.

Thanks to all those who made the seminar a success. Join us at our Annual Seminar at the Capital Plaza Hotel, Frankfort, Kentucky, June 8-10, 1986.

c

Bob Lotz Cynthia Dember

Tom Hectus, Vince Aprile, John Schrader L

6 West’sReview A Review of the Published Opinions of the Kentucky Supreme Court Kentucky Court of Appeals United States Supreme Court

Linda K. West

that they cannot be rehabilitated. The Court cited with approval the same holding as reached by the Court of ONFRONTATION/PFO Appeals in Commonwealth v. Dillingham, Bray v. Commonwealth Ky.App., 684 S.W.2d 307 1985. 32 K.L.S., 12 at 15 September 5, 1985 NO WANTON SELF-PROTECTION At Bray’s robbery trial the principal Gray v. Commonwealth prosecution witness was Sherry Col 32 IC.L.S. 12 at 17 September 5, 1985 lins, who waited in the getaway car while Bray performed the robbery. The In this case, the Court reversed defense cross-examined Collins regard Gray’s conviction of second degree ing immunity from prosecution granted manslaughter. Gray argued that he her by the Commonwealth in exchange could not be convicted of second de for her testimony. However, the trial gree manslaughter an offense having court disallowed cross-examination as wantonness as its mental element to police investigation of the witness since all the evidence showed that he _ with regard to forged checks, and as intentionally shot the victim. The to charges pending against her in defense asserted a claim of self- Indiana. The Court considered evidence protection. The trial court, relying of these additional charges irrelevant on Blake v. Commonwealth, Ky., 607 and held that Davis v. Alaska, 415 S.W.2d 422 1980, reasoned that a U.S. 308 1974 did not require it to jury might conclude that Gray was hold otherwise. "Davis does not au wanton in his belief that self-pro thorize a general exploration of other tection was necessary, and based on criminal activity on the part of a this logic, instructed the jury on witness where there is no showing that second degree manslaughter. The trial the cr098-examination would expose court’s action disregarded the deci some motivation for the testimony sion of the Kentucky Supreme Court in being given." Bakery. Commonwealth, Ky.,’ 677 S.W.2d 876 1984, overruling Blake. In Baker The Court reversed Bray’s first degree the Court noted that wantonness and PFO conviction. Reversal was required recklessness by definition require theY because the underlying offense was "disregard of" or "failure to per committed before Bray’s most recent ceive" "a substantial and unjusti prior felony conviction was obtained. fiable risk that a particular result The underlying offense was committed will occur." KRS 501.020 3 and 4 on January 25, 1984, while the most Emphasis added. A claim of self- recent felony conviction was not ob protection, which necessarily asserts tained until February 13, 1984. The that the defendant intended the result Court held that this progression of of death or injury of the victim, events did not comport with the intent contradicts any finding of wantonness of the PFO statute to penalize only or recklessness as statutorily de those offenders who have demonstrated fined. Gray reaffirms this holding as

7 announced in Baker. Justices Leibson assault with a dangerous instrument so and Wintersheimer dissented. as to constitute first degree assault. KRS 500.0803 defines "dangerous in C DOUBLE JEOPARDY strument" as "any instrument, article Jordan v. Commonwealth or substance which, under the circum 32 X.L.S. 12 at 18 September .5, 1985 stances in which it is used, attempted to be ‘used, or threatened to be used, The Court rejected Jordan’s double is readily capable of causing death or jeopardy challenge to convictions of serious physical injury." The Court first degree burglary, first degree noted that ordinarily "instrument, robbery, first degree unlawful impris article or substance" refer to things onment and theft. All of the offenses other than parts of the human body. arose from Jordan’s conduct in break The Court also noted that "it is sim ing into a home, removing a car and ply not clear whether the general other property, and tying up and aban assembly intended that fists be con doning the homeowners. sidered to be a dangerous instru ment...." Consistent with its prac The Court stated Jordan’s argument as tice, the Court applied the "rule of "that where the evidence discloses a lenity" to hold that "dangerous in continuing course of conduct through strument" does not encompass a de out which the elements of more than fendant’s hands or feet. Justice Win one statutory offense are present tersheimer and Chief Justice Stephens double jeopardy prevents prosecution dissented. for more than a single offense." The Court found that prosecution for the CHILD SEXUAL ABUSE SYNDR4E/ multiple offenses was not barred under PRIOR SEX CRIMES/HEARSAY KRS 505.020. The Court also found that Bussey V. Commonwealth the multiple convictions were per 32 K.L.S. 13 at 9 September 26, 1985 missible under the standard test of Blockburger v. United States, 284 U.s. The defendant in Bussey was convicted 299 1932 which finds no double jeo of the attempted sodomy of his daugh pardy violation "if each statute re ter. At his trial a prosecution psy quires proof of an additional fact chiatrist testified that the victim which the other does not...." displayed symptoms of "child sexual abuse accommodation syndrome." How The Court did reverse Jordan’s theft ever, the psychiatrist admitted that conviction. Prior to trial, Jordan the symptoms could ‘have resulted from plead guilty to the theft of the pro sexual abuse of the victim by someone perty taken in the robbery. Under Ohio other than her father. The Court held v. Johnson, U.S. , 104 S.t. that, because the victim’s display of 2536 1984, this guilty plea did not the syndrome could not be linked to preclude the prosecutor from still any act of the defendant, evidence of pursuing a conviction of the higher the syndrome was irrelevant. offense - robbery. Achievement of the robbery conviction required that the The Court upheld the action of the theft conviction be set aside. trial court in admitting evidence of prior, uncharged instances of sexual DANGEROUS INSTRIMENT abuse of the victim by the defendant. Roney v. Commonwealth "Since appellant was being tried for 32 IC.L.S. 12 at 22 September 5, 1985 attempted sodomy, this evidence was admissible to show the intent of the The Court was called upon in Roney to appellant in this case." The Court decide whether an assault with the de indicated, however, that an admonition fendant’s fists may be considered an to the jury concerning the signif- L

8 icance of such evidence should not struct the jury in a drunk driving state that it is admitted to show trial that the defendant’s driver’s k.. "lustful inclination." license will be revoked upon convic tion. Such revocation ‘is required Finally, the Court held that the under KRS 189A.080 and is court admin testimony of a social worker that the istered. Th, revocation is not a pen victim had told her about prior in alty to be assessed by the jury. The stances of sexual abuse was inadmis Court cited its* holding in Payne v. sible hearsay where the victim refused Commonwealth, Ky., 623 S.W.2d 867 to testify concerning the prior abuse. 1981 forbidding comment concerning the consequences of a particular ver BAIL PENDING APPEAL dict and held that "the jury should Coamonwealth v. Peacock not be instructed or be allowed to 32 K.L.S. 13 at 10 Sept. 26, 1985 speculate on whether the defendant’s license shall be revoked upon con In this case, the Court held that the viction." Court of Appeals abused its discretion by granting bail pending appeal based JUVENILE WAIVER/PRESERVATION on ex parte communications solicited Commonwealth v. Tho!flpson by it. The trial court denied Peacock 32 K.L.S. 13 at 11 Sept. 26, 1985 bail on appeal without stating its reasons into the record. Peacock ob Thompson, a juvenile, challenged the tained Court of Appeals’ review of sufficiency of the district court’s this ruling under RCr 12.82. In an waiver of its jurisdiction of him to effort to determine the reasons for the circuit court. The Supreme Court the denial of bail the Court of rejected the challenge based on lack ç Appeals called both the trial judge of preservation: "At the outset of U and a probation officer. The Court of this opinion, we note there was never Appeals subsequently held that the any objection raised in the District reasons communicated to it by this ex Court or in the Circuit Court to any parte procedure were inadequate, and portion of the juvenile proceedings, granted bail. to the transfer order itself, nor was any objection made to the investi The Supreme Court noted that "[w]hen a gative requirements of KRS 708.140, request for bail pending appeal is nor to the Grand Jury instructions denied, the proper practice for the under KRS 208.1705b." The Court trial court is to follow the standards cited as dispositive the case of listed in RCr 4.16 by giving written Anderson v. Commonwealth, Ky., 465 reasons for the denial..." In the ab S.W.2d 70 1971 which held prospec sence of written reasons the proper tively that insufficiency of a juven procedure was not to solicit an ex ile waiver must be preserved by objec- parte statement of the reasons, but to -tion in district or circuit court. remand the case to the trial court for an "appropriate adversarial eviden- Although the Court held the lack of tiary hearing" followed by written preservation to be fatal, it addition reasons for a denial of bail. Justices ally held that the order from the Leibson and Vance dissented. district court waiving jurisdiction of Thompson was not insufficient on its DRUNK DRIVING face. Unfortunately, while holding Coonwea].th v. Steiber that the order did not merely "parrot" 32 X.L.S. 13 at 11 Sept. 26, 1985 XRS 208.170, the Court limited its discussion of the order to the state In this certification of the law the ment that "it addresses each, of the Court held that it is improper to in- criteria set out in the statute and

9 ____,

followed the states by what witnesses the elements In this case,’ the Court Kentucky Supreme were proved." path taken by the Court in Hicks v. Commonwealth, Ky., that C 670 S.W.2d 837 1984, to hold in the trial court did not err refusing funds for a defense sero KentuckyCourt ofAppeals logist’ where the defendant made no showing as to what manner he expected The Court DOUBLE JEOPARDY/PALPABLE ERROR to be assisted by an expert. Supreme Commonwealth noted in passing the u.s. Fortney v. 470 Court decision in Ake v. Oklahoma, 32 K.L.S. 13 at 2 September 6, 1985 L.Ed.2d U.S. 105 S.Ct. 1087, 84 an Fortney entered guilty pleas to two 53 1985, which recognized funds robbery counts based on the robbery of indigent’s due process right to present an a gas station and the station’s at for a psychiatrist to help Court tendant. Fortney’s subsequent Motion insanity defense. However, the of to Vacate under RCr 11.42 was denied. of Appeals characterized the denial "discre On appeal, Fortney argued that his funds for a serologist as conviction of both the robbery of the tionary." gas station attendant and the robbery of the gas station was "constitu 1IEN11IENT OF INDIC’IKENT tionally impermissible because he gave Basham v. Commonwealth the court an account of only one 32 K.L.S. 14 at 11 October 11, 1985 robbery in explaining how the crime that it occurred." The Court of Appeals agreed In this case the Court held court to that, if the facts were as described was not error for the trial indictment by Fortney, he could be convicted of permit an amendment of the only one robbery. The situation de at the close of the Commonwealth’s an scribed by Fortney was distinguishable case which consisted of adding the from that contemplated by the Kentucky omitted element of scienter to facts con Supreme Court in Douglas v. Common indictment’s recitation of indictment wealth, Ky., 586 S.W.2d 16 1979. In stituting the offense. The offenses and Douglas, the Court upheld two robbery "described the specific bases." The convictions where "[t]he taking of noted their statutory allows Gnau’s wallet and the taking of the Court cited RCr 6.16 which ad motel’s money clearly constituted two amendment of an indictment" if no separate thefts." ditional or different offense is char the ged and if substantial rights of The Court of Appeals reversed and defendant are not prejudiced." remanded Fortney’s case even though the double jeopardy claim had not been Linda West asserted below. "Ordinarily, we would * * decline to settle an unpreserved claim * * * * of error, but a conviction in viola tion of due process constitutes ‘ [a] palpable error which afiects the to devise substantial rights of a party’ which It is a very easy thing to make we may consider and relieve even good laws; the difficulty is mistake is though it was insufficiently raised or them effective. The great virtuous, preserved for our review. RCr 10.26." that of looking upon men as so of thinking that they can be made FUNDS FOR EXPERTS by laws. Commonwealth vs Thacker 32 K.L.S. 14 at 2 Sept. 27, 1985. Henry St. John Bolingbroke

10 I Protection and Advocacy o for the Developmentally Disabled

0

SUPRENE COURT DECISION OPENS persons rested on an irrational pre NEIGHBORHOODS TO PEOPLE WITH MENTAL judice against people with mental RETARDATION retardation. The court noted that while people with mental retardation In October 1980 the City of Cleburne, have a reduced ability to function in a residential community southwest of the everyday world, Cleburne had no Dallas, denied a special use permit rational basis for believing these for a group home for persons with "differences" to be relevant in this mental retardation. The result was a circumstance. Here, the court noted, series of lawsuits centering on the the group home would pose no more designation of persons with mental threat to any legitimate interest of retardation as a protected class and the city than would be posed by per the use of local zoning laws to pre mitted uses such as boarding houses, vent citizens with mental retardation nursing homes and fraternity houses. from living in the community. While the Supreme Court declined to The case, City of Cleburne v.Cle- adopt the reasoning of the Fifth LivingCenter, was arguedburne be Circuit Court and thus did not apply fore the U.S. Supreme Court last in this case the heightened judicial &‘ spring. Attorneys for Advocacy, Inc., scrutiny required in cases involving the state’s protection and advocacy intentional discrimination against system for persons with developmental women, the decision nonetheless rep disabilities, represented the Cle- resents a step forward in securing burne Living Center. An interpreta equal rights for people with mental tion of the Court’s decision, by retardation. The decision directs the Diane Shisk, one of Advocacy, Inc.’s, lower courts to review legislative attorneys on the case, follows: distinctions based on mental retar dation to determine whether or not On July 1, 1985, the U.S. Supreme the attributes of mental retardation Court addressed the rights of people will pose a threat to legitimate with mental retardation to equal governmental interests being fur protection of the law under the U.S. thered by the legislation beyond Constitution. The Supreme Court un those posed by permissible groups. In animously ruled unconstitutional the the absence of such threats to legi use of a local zoning ordinance to timate interests, the distinction prevent a group of people with mental will fail as unconstitutional. retardation from living in a nigh- borhood where other congregate living Possibly even more important is the arrangements were allowed without underlying principle affirmed by the restriction. court--that mental retardation per se cannot be used as a proxy for depriv In the City of Cleburne v.Cleburne ing people with mental retardation of Livinçenter case, the court found their rights and interests without that the city’s requirement of a regard to individual abilities and %J special use permit for a group home needs. While the majority of the for mildly and moderately retarded court leaves open the possibility

11 that a city may have more legitimate Legislators have been reluctant to interests in restricting some sub impose laws invading marital bed groups of people with mental retar rooms, but there appears to be more dation, such as people with severe support for the proposal heading into mental retardation, the Cleburne de the January session than in the past, cision clearly states that people said Claude Turpin, chief caseworker with mental retardation can no longer at t1e State Reformatory*at LaGrange. be treated as second-class citizens. Ms. Hicks said a group of Owensboro The article first appeared in Texas women representing at least five Planning Council for Developmental groups. planned to ask House Speaker Disabilities October ‘1985 issue of Don Blandford, D-Philpot, either to "Highlights." Reprinted with permis sponsor the legislation or to support sion of W. D. Nielson, Grants it publicly. There has been no op Manager, Texas DD Council. position to the marital rape pro posal, she sa’id, but the group is * * * * * * prepared for any opposition. One objection always raised is that women might falsely report their husbands for rape to strike back after an argument, she said, adding, "Research does not support this.tt Twice as many Coalition Seeks Changes In women are raped by their husbands as Rape, Sex-offender Laws by strangers, she said. "When you’re raped by someone you love, there are OWENSBORO - A coalition representing feelings of anger and betrayal," Ms. 30 women’s groups is trying to find a Hicks said. legislator willing to sponsor a package of sweeping changes for Ken Turpin said the plan to require tucky’s rape and Eex-of fender laws in treatment for convicted sex offenders the 1986 General Assembly. would help Kentucky rehabilitate them. Just 100 of 500 such inmates in Among the major recommendations by state prisons now have volunteered the Kentucky Coalition Against Rape for treatment programs, he said. and Sexual Assault are proposals to Studies have found that 70 percent of abolish marital immunity for rape and sex offenders who don’t receive establish requirements that convicted treatment are arrested again for sex offenders participate in treat similar offenses after being released ment programs. from prison, Turpin said. The rate drops to between 30 percent and 10 Lexie Greene Hicks, who supervises percent for those who receive two Rape Victime Services for Western years of counseling, he said. Kentucky from her Owensboro office, estimated that 90 per’cent of the To expand its program to meet women she had counseled had been additional demands, Turpin said the raped by husbands, some repatedly. Corrections Cabinet would need five additional social workers and four National studies have founthat one probation and parole officers to of every seven married women has been counsel sex offenders, he said. or will be raped by her husband, Ms. Hicks said. There are no solid estimates for Kentucky, which is -Reprinted by permission among 21 states where spousal rape is Associated Press not a crime.

12 Post-Conviction Law and Comment

Kenneth R. Taylor

FRCII BENEFITINGERRONEOUSSENTENCES rect" or "erroneous," in the sense that the court, either inadvertently, Every experienced criminal lawyer in ignorantly, or even intentionally, this state knows that Kentucky’s failed to take cognizance of certain sentencing laws are in a state of adjudicatory facts present in the disarray. The statutes have been a- case and to apply a specific sen mended, deleted, reworked and judi tencing statute. Many times these cially interpreted so many times that errors inure to the benefit of the the result is a collage of laws that criminal defendant, and are occa are obtusely worded, sometimes pa sionally part of the plea nego tently contradictory, see, e. tiations. Comjnonwea].th v. Hunt, Ky. App., 619 S.W.2d 733 1981; and are dispersed If these erroneous sentencing pro throughout several chapters of the visions can be disregarded by the Kentucky Revised Statutes. There are Corrections Cabinet, Parole Board or statutes which restrict the court’s other executive agency, or if they authority to grant probation and can be overturned at any time by the O shock probation where certain facts prosecution on the ground that they exist, KRS 533.06012 and 3; are void, then their existence is of statutes which direct that additional only academic interest to the defense sentences must run consecutively attorney. If, on the other hand, under certain conditions, KRS 532.110 these errors must be appealed by the 4, 533.060 12 and 3; other Commonwealth, and, until so chal statutes which indicate that the lenged are enforceable as written, sentences run concurrently under then they become the objects of some of the same circumstances just practical and tactical consideration. described, KRS 532.1103; statutes. A recent unpublished Court of Appeals which limit the amount of cumulative decision makes them just that. time a defendant can receive on cer tain classes of felonies, KRS 532.110 In Perkins v. Commonwealth, No. 85- 1c; and statutes which have been CA-425-MR Ky.App., July 26, 1985, interpreted to overrule these sen the court held that the Corrections tencing caps in certain situations, Cabinet must enforce an erroneous see, Devore v. Commonwealth, 662 sentence to concurrent prison terms S.W.2d 829 1984, KRS 533.0602. because the error was not appealed by And, this is just scratching lhe sur the Commonwealth. The action of the face. There are PFO laws, classi Corrections Cabinet in ignoring the fication laws, calculation laws, laws erroneous concurrency provision by relating to fines, laws dealing with running the sentences consecutively concurrent federal time, capital sen was held to constitute unauthorized tencing statutes, presentence proce administrative action. This decision dure statutes, court modification was based upon, and extended the , laws, and parole revocation statutes. rationale of, two previous Kentucky cases, Brock V. Sowders, Ky., 610 It is no small wonder that sentencing S.W.2d 591 1980, and Commonwealth judgments are occasionally "incor- V. Crawford, Ky., 147 S.W.2d 1019

13 1941, both of which disapproved of In Perkins, the defendant had sen-P similar kinds of disregard by prison tences from two different courts--a officials of the erroneous provisions seven year sentence from Campbell of sentencing orders. County and a five year sentence from Kenton County. The Kenton judgment A brief look at the facts of these specifically ordered that its sen three cases will put the issue into tenc would run concurrently with the perspective. In Commonwealth v. sentence from Campbell County, giving Crawford, supra, the juvenile def en- Perkins a total sentence of seven dant was committed to the house of years. The Corrections Cabinet, in a reform for a definite period of review of the presentence investi years. The judgment was erroneous in gation, noted that the Campbell that a state law required juvenile County crime was committed while a- commitments to be indeterminate until waiting trial on the Kenton County age twenty-one. The superintendent of charge. Therefore, it calculated the the house of reform ignored the seven year sentence from Campbell determinate portion of the commitment County consecutively to the five year order and kept the boy past the sentence from Kenton County, on the normal expiration date, intending to theory that KRS 533.0603 required release him at age twenty-one, as such a result. That statute provides required by state law. The Kentucky that a sentence for a crime committed Court of Appeals held that, despite while awaiting trial on another crime the incorrect determinate desig shall run consecutively to the sen nation, the superintendent had to tence for that other crime. The Court obey the clear sentencing mandate of of Appeals held that, while the the juvenile court, until that judg Kenton County Judgment, running the ment was properly overturned. sentences concurrently, violated the above-cited statute, it still was In Brock v. Sowders, supra, the de enforceable against the Corrections fendant entered into a plea agree Cabinet because it was not appealed ment, pursuant to which his Kentucky by the Commonwealth or challenged by sentence would run concurrent with an post-trial motion. The Court held: Indiana sentence he was currently serving. After being paroled from [i]f we were to adopt the ap Indiana, he was picked up by the pellant’ s Corrections position, Kentucky Corrections Cabinet and in then any time the Corrections carcerated. Corrections ignored the Cabinet disagreed with the Cir portion of the Kentucky order which cuit Court’s interpretation of ran the Kentucky sentence concurrent the law in a ruling, the Cabinet with Indiana’s, arguing that the could simply ignore that ruling. Court had no authority to so desig nate. The Kentucky Supreme Court agreed that there was no statutory authority for the concurrent running We think that to approve the of sentences, but held that because actions of the Corrections Cabi of the plea agreement, the defendant net in the instant case would was entitled to enforcement of the also be a dangerous precedent. If order. The implicit assumption of the the Commonwealth, in its role as Brock opinion, one which was later prosecutor, felt the Kenton Cir applied in the Perkins case, was that cuit Court order was in error, it an erroneous sentence was enforceable could have appealed to a and could not be ignored by Cor higher court or perhaps filed a rections. CR 60.02 motion. To allow an agency to disregard a court order

14 whenever it has an objection, writer, all those prisoners who have although legally valid, to that the Perkins fact pattern, have had order, would disrupt the orderly their sentences recalculated to re function of the judicial process. flect concurrent terms. Id. The law is clear that when a circuit court rendrs a sentence, the Cor rections Cabinet may not, either di rectly or indirectly, disobey or circumvent that order, regardless of its contrary interpretation of the applicable law. And, this principal applies to other executive agencies as well. See, Op. Atty. Gen., No. 83-162 stating that if a trial court incorrectly imposes concurrent sen tences where consecutive sentences are required under KRS 533.060, the parole board is without authority to disregard the designation and to im pose consecutive terms for the pur pose of determining parole eligi bility. The practice pointer to be gleaned from Perkins and the related cases is that if you have a client with an erroneous, yet beneficial, sentence, you can obtain enforcement ‘0 of that judgment.

THE SILENT ERRONEOUS JUDIENT

Despite Perkins, there remains to be resolved one additional point of contention with Corrections. The Cabinet has adopted only the f act- specific holding of Perkins. It has not applied the broader, legal policy implications of the decision. In other words, when Corrections re The Court of Appeals denied a motion ceives a case on all-fours with by Perkins to publish the opinion. Perkins, it will run the sentences That is difficult to understand in concurrently. However, its internal light of the significant precedential regulations still have it in the value of the case. However, in re business of interpreting circuit sponse to that motion to publish, the court judgments with the aid of sen Corrections Cabinet submitted to the tencing statutes in one other cir court an affidavit, executed by the cumstance. The remaining issue in supervisor of their Offender Records volves the "silent judgment." The Section, indicating that it intended Offender Records Manual, the Cabi to give’ system-wide effect to the net’s internal manual governing sen Perkins decision. The Cabinet’s sen tence calculations, provides as fol tence calculation policies were a- lows: mended to reflect the decision, and, to date, as far as is known to this If the judgment specifically

15 states that the new sentence runs ceive a cumulative sentence of concurrent with his present sen two years or four years? KRS tences, then there is no question 532.1103 provides: of how the sentence should run, i.e., it runs concurrently with If the court does not specify the those designated. Likewise, if manner in which a sentence im the judgment specifically states posed by it is to run, the that the new sentence runs con sent"ence shall run concurrently secutively with present sentence with any other sentence the de or sentences then there is no fendant must serve. Id. question, i.e., it runs conse cutively with designated sen Similarly, KRS 197.035 provides: tences. However, if the judgment is silent as to how it runs and 1 A sentence, on conviction of the crime was committed under the a felony, imposed upon a confined provisions of KRS 533.0602 and prisoner for a crime committed 3, ...or KRS 532.1104,... prior to the date of his instant then it runs concurrently. Id. at commitment, if designated to be 11-12. served consecutively, shall be added to the sentences being Clearly, this policy requires a served. quasi-judicial determination by Cor rections that certain sentencing laws 2 If the additional sentence is are applicable. In essence, Cor designated to be served concur rections acts as an overseer of the rently, Or the commitment is courts, doing in their stead what is silent, he shall be considered as required by law. A strong argument having started to serve said can be made that the policy is sentence on the day he was com illegal. For purposes of this dis mitted on the first sentence. Id. cussion, consider the following hy Emphasis added. pothetical. These provisions seem to dispose of Suppose a defendant is indicted for the issue. The sentences must run theft in County A and makes bail. concurrently and the defendant has Then, while awaiting trial he commits’ two years to serve. However, here is a burglary in County B. He pleads where the above-quoted Corrections guilty in A and receives two years. policy comes into play. The Correc The judge in County B is unconcerned tions Cabinet will look at the PSI with the previous sentence from A. which in this case, would be done after sentencing and it will see, Let’s assume that a presentence in from the dates provided by the pro vestigation is waived by the def en bation and parole officer, that crime dant, so the existence of the other B was committed while awaiting trial sentence is never really. put before on crime A. The Corrections official the court. The defense attorney will then turn to KRS 533.0603, doesn’t mention the other sentence which states: because he knows the two sientences must run consecutively. The part-time When a person commits an offense prosecutor is thinking about a real while awaiting trial for another estate closing he has scheduled to offense, and is subsequently begin in ten minutes. The result is convicted or enters a plea of that no designation is made and the guilty to the offense committed judgment is silent. When the def en while awaiting trial, the sen dant gets to LaGrange, will he re tence imposed for the offense

16 committed while awaiting trial shall and opportunity to be heard as to the not run concurrently with confinement fact question. for the offense for which said person is awaiting trial. Id. Applying KRS 532.1103 or 197.035 does not require any finding of fact, He will then apply KRS 533.0603, other than simply noting that the new instead of the above-quoted statutes, judgmenl is silent as to concurrency and run the sentences consecutively. or consecutiveness. The statutes are When questioned about why he con self-implementing. By operation of siders one statute to take precedence law, a silent judgment is a con over the others, he will cite Com current one, so applying 533.0603 monwealth v. Hunt, Ky., 619 S.W.2d to a silent judgment is tantamount to 733 1981, which held that where disobeying the judgment in favor of a 532.110 and 533.060 are in direct statute, the very thing prohibited in conflict, and are irreconcilable, the Perkins. most recent controls.

There are two problems with that argument. First, Hunt dealt with a direct and irreconcilable conflict. Different subsections of the two statutes were involved in’that case. The two subsections involved in our hypothetical can be reconciled. One of them directs the court to rule a certain way, and the others determine how the judgment should be inter ‘ preted in the event the court fails to so rule. Contrast that with Hunt, wherein one statute gave the judge the authority to make a probation violator’s new time concurrent, and the other statute specifically said no such discretion exists--the time must be consecutive. No such direct conflict exists in our hypothetical.

The primary problem with the Cor rections position, however, is that it again places that agency in the position of a fact-finder and sen tencer. It violates the doctrine of Commonwealth V. Hunt, supra, simply separation of powers. The question of deals with how .a sentencing court whether or not a crime was committed should resolve a direct conflict be while awaiting trial on another of tween two sentencing statutes. The fense is a question of fact. Th PSI courts are often called upon to de is not inerrant, irrefutable au termine which of two sentencing laws thority for the facts contained applies to a particular fact pattern. therein. The determination of the See, Devore V. Commonwealth, Ky., 662 applicability of the sentencing S.W.2d 829 1984, conflict between statutes is being made outside the 532.2201c and 533.0602; Handley four corners of the sentencing judg v. Commonwealth, Ky. App., 653 S * W. 2d s.. ment, and the inmate has no notice 165 1985 conflict between 532.110 1a and 533.0603; and Hampton

17 v. Commonwealth, Ky., 666 S.W.2d 737 apply statutes, however uncontro 1984, conflict between 532.080 and verted the facts may be, it is none 532.1101c. What all these cases, theless determining the length of along with Hunt, have in common is sentence, and it is invading the that a sentencing court, not Cor prerogative of the courts. Correc rections, is making the sentencing tions should not apply Chapters 532 decision from which the appeal is and 53f; those chapters are directed taken. In Brock and Perkins, Cor to the sentencing courts. By con rections was making the determi trast, Chapters 196, 197 and 439 nation, and, in both cases, the court provide direction to Corrections. implied that Corrections function was purely executive---i.e., to execute There are also practical reasons for the judgment, not to put an inter this policy of administrative re pretative gloss upon it, or to straint, in addition to the above- disregard its provisions. Therefore, stated legalistic ones. Public re a persuasive argument can be made cords can be mistaken. If the judge that when Corrections receives a si announces that he must run the new lent judgment, it must run the sen sentence consecutively, because the tences concurrently and cannot apply defendant appears to be on probation, the special sentencing laws which and assuming the defendant contests require it to go beyond the four that fact, the defendant can, then corners of a sentencing order. and there, object, make a record, and if he loses the factual question, Corrections, of course, will argue appeal. By contrast, when Corrections that in applying the sentencing laws determines that the defendant was on it is simply applying facts which are probation, parole, conditional dis verifiable from public records, not charge or was awaiting trial, it is just from the PSI. And, that is true. done ex parte and the defendant has Probation, shock probation, condi no immediate recourse or appeal. He C tional discharge, awaiting trial, and must file an independent action for conviction for escape, are all stat declaratory judgment. utes which should show up in court documents. But the question is not There are undoubtedly numerous in whether Corrections can do as good a mates in our prisons who have silent job as the courts in applying sen judgments being interpreted as pro tencing laws. The question involves viding for consecutive sentences. authority to determine maximum leng This practice should be challenged. ths of sentence. The bottom line is Perhaps then we can get the Correc that the judicial branch determines tions Cabinet out of the judiciary sentences; the executive branch exe and back in the executive branch cutes them.1 When Corrections goes where it belongs. beyond the four corners of the sen tencing order to determine facts and KENNETH R. TAYLOR

10f course, the general assembly, in other KRS Chapters, has delegated to * * * * * * * * the executive branch the authority to determine parole eligibility, custody classification, and good time allow "WHEN YOU RELEASE THE WRONGDOER FROM ances. But, nowhere is the executive THE WRONG, YOU CUT A MALIGNANT TUMOR branch given the authority to OUT OF YOUR INNER LIFE.’ determine whether sentences are concurrent or consecutive. r LEWIS B. SMEDES

18 The Death Penalty.

KENTUCKY’ S DEATH ROW POPULATION - .25

PENDING CAPITAL INDICfl4ENTS KNOWN TO DPA - 104 Kevin M. iIly

GALL NEARS END OF mental illness. Therefore, the Court POST-CONVICTIONSTATE held that counsel’s "leg work" was constitutionally acceptable. Gall II On November 21, 1985, the Kentucky at 4. Supreme Court affirmed the denial of Eugene Gall’s RCr 11.42 motion. Gall Since the Court previously held in claimed that his two public defenders Gall v. Commonwealth, Ky., 607 S.W.2d were ineffective in representing him 97, 101-104 1980 [Gall I], that at trial. Applying Strickland v. Gall had an impartial jury, there was Washington, 104 S.Ct. 2052 1984, no ineffective assistance in not ag for the first time, the Court scru gressively pursuing the change of tinized counsel’s investigation and venue petition. Gall II at 5. preparation of an insanity defense. Nor was there ineffective assistance

A. INEFFECTIVE ASSISTANCE at the penalty phase since "an abun dance of evidence was introduced... Noting that "Dr. Noelker saw Gall 21 Gall’s mother, father, ex-wire and or 22 times prior to trial," Justice Dr. Noelker. * .testified..." Gall II Aker, writing for a unanimous Court, at 7-8. Additionally, the affidavits found there was no need to "produce of two absent witnesses a witness to [any more than] one live expert executions and a prison psychologist witness..." Gall II at 3. Noelker’s were read to the jury. diagnosis of "chronic paranoid schi zophrenia, severe sexual disturbance" The Court refused to find the failure was adequately supported by his to independently test serological and "diagnostic clinical session, the ballistic evidence ineffective assis taking of a history...a series of tance of counsel. One lawyer for Gall structured and objective tests.... had a degree and seven years work [which were submitted] for blind experience in chemistry and person analysis..." Therefore, Noelker’s re ally interviewed the serologist and vIew of reports from previous psy the ballistics expert. Since the chiatrists was adequate. Gall’s law identification of Gall was "clearly yers indicated they wanted to avoid a established by other evidence", and "battle of the experts... [T]he de since there was vigorous cross- cision of Gall’s trial attorneys to examination, there was no error. Gall introduce a limited amount of insan II at 8. ity evidence was a reasonable t*ial tactic..." Id. Additionally, the pre "Counsel decided that the massive judice prong of Strickland’s test was amount of time necessary to do a jury lacking. composition study on ‘young people’ would be too unproductive and time Although the defense produced none of consuming. We agree." Gall II at 9. the prior experts involved in treat- Anyway, the jury commissioners al t,,, ing or evaluating Gall, Dr. Noelker legedly choose jurors from the voter did testify to Gall’s history of registration list and tax roles by

19 random. Nor was it ineffective f erred Gall was authorized to do so assistance to fail to file a dis under the lAD" and the policy sup covery motion, in light of the pro porting relevant statutes and cases secutor’s "open file" discovery. No "was to prevent the ‘interruption of prejudice was shown. Id. the rehabilitative function...", the Court found no error. Gall’s death The Court held that there were sentence makes any concern for his "sufficient pretrial contacts" to rehabilitation irrelevant. Gall II at maintain a "viable attorney-client 14. relationship with Gall." Gall II at 10. "Gall’s self-representation was Claims that the jury did not "pro attributable only to his deterior perly consider [Gall’s] mental ill ating mental state", according to Dr. ness" and improperly consider parole Noelker. Therefore, "Gall’s decision were rejected on the basis of RCr to represent himself was independent 10.04, which generally prohibits and not the result of ineffective juror testimony after trial. Never assistance of counsel." Id. theless, the Court examined the "testimony of one juror. and hearsay There was no need to include the testimony of another...". Justice "phrase.. .extreme emotional disturb Aker distinguished Necamp v. Common ance" in the instructions since the wealth, Ky., 225 S.W.2d 109 1949 court previously found the omission which involved a juror who consulted proper in Gall I. It follows that it with a priest about the death penalty wasn’t ineffective assistance in Gall during deliberations. Gall II at 14. II. Anyway, the Court holds, the juror testimony presented by Gall does not Applying Washington, the Court found convince us..." Gall II at 15. it "unlikely that the result would have been favorable to Gall had Gall II also rejected arguments that: C counsel proceeded any differently." it was improper to refer to a poly The "allegedly deficient conduct in graph examination during the 11.42 this case was not so serious as ‘to hearing; a continuance should have have ‘undermined the proper func been granted to secure out of state tioning of the adversarial process witnesses for the hearing; prosecu- that the trial cannot be relied on as tonal misconduct not raised on the having produced the just result." direct appeal required a new trial; Gall II at 11, quoting Washington, 80 Gall’s Fifth Amendment privilege was L.Ed.2d at 693. violated when he was cross-examined, beyond the scope of direct, at the B. OTHER ISSUES 11.42 hearing; there was need to reexamine the issues previously pre After his conviction, Gall was im sented in Gall I in light of sub properly sent to Ohio to stand trial sequent decisions; and that the trial and then returned to Kentucky’s death court had authority to order the row. The Court found no error. "We Supreme Court to release it’s death can only agree that Gall was, denied penalty data. See Ex Parte Far,ley, his right to petition the Gove-nor of Ky., 570 S.W.2d 617 1978. Kentucky to disapprove Ohio’s request for temporary custody under the... The Court also found no "abuse of IAD... and that he was not allowed discretion" in denying funds for var the opportunity to file a writ of ious experts at the 11.42 hearing. habeas corpus under the Uniform Nor did it violate the federal con Criminal Extradition Act..." Gall II stitution for Gall to be sentenced to at 12. Since the warden "who trans die "by a judge who had doubts about

20 his mental status..." Gall II at 16. named George...Stinney, Jr." He was Finally, counsel’s failure to elicit executed in South Carolina on June testimony from Gall’s mother con 16, 1944, "less than two months after cerning Gall’s being "molested as a being convicted of the murder of an child" was not error since the testi eleven year old white girl...At the mony would have been hearsay. Gall II time of his death, he was five feet at 18-19. one inch tall and weighed ninety-five pounds." Bruck describes him as being KIDS KILLING "a fourteen year old who, in many ways, was too small for the chair." Eugene Gall was sentenced to death despite a strong showing of past and It appears that the youngest present mental illness. No doubt this Kentuckian executed in the last 75 was due, in part, because his victim years was 16 at the time of the was a child. In this country, the crime. Silas Williams, a black child race, sex and age of the victim is a from Wood.ford County was executed on significant, often decisive, factor Mat’ch 21, 1913. More recently, in who gets sent to death row. See, Arthur Jones, from Mason County, also e.g., Gross & Mauro, Patternsof black 16 year old, met the same fate An Analysis of RacialDeath:Dis on March 22, 1946. There have been in Capital paritiesSentencingand six juveniles executed in Kentucky in Victimization, 37 .STAN.L.Homicide the last 75 years. Four were black REV. 27 1984. Child victims, es and two were white. pecially white and female, can propel the most unlikely candidates towards Frank Carson was executed on April 7, execution. Witness Todd Ice, barely 1933 at the age of 17 for a Nelson fifteen at the time of his arrest. County murder. Neither Carson nor Williams even had an appeal. Burnett 0 The Ice case, and others like it, Sexton, a 17 year old, was executed demonstrate a sad irony. Our repug for a Perry County murder on January nance for child killers doesn’t seem 15, 1943. William Gray, a black 17 to inhibit our ability to do the year old, was executed for a Fayette same. The execution of Charles County murder on June 25, 1943. As Rumbaugh, Jr., on September 11, 1985, did the other five, Gray killed a "marked a legal watershed of sorts, white person. Grayv. Commonwealth, because. . . Rumbaugh was put to death 170 S.W.2d 870, 873 1943. for a crime he committed when he was just 17 years old... [i]t had been Carl Fox was 17 years old and black more than twenty years since any when he committed a crime for which American had been executed for a he was executed at Eddyville on April crime committed while he or she was a 6, 1945. Fox’s case did not engender minor." Bruck, "Executing Teenage the sympathy of the court. "True, the Killers Again", The WashingtonPost, penalty imposed is extreme, but so Dl 9/15/85. South Africa, Libya, was the crime." Fox v. Commonwealth, Iran, Iraq, the Soviet Union and 185 S.W.2d 394, 399 1945. That China don’t execute juvenile. We crime, however, was not murder. Fox do. was convicted of a Campbell County rape of a 16 year old "white girl." Rumbaugh, who suffered from severe mental illness, THEADVOCATE Vol. 7, ‘No. 6 at 19 1985, was no where near the youngest to be executed in KEVIN MCNALLY U this century. "That distinction be longs to a 14 year old black boy

21 ‘1 Sixth Circuit I Highlights

Donna Royce

DESTRUCTION OF POTENTIALLY EXCULPATORY EVIDENCE aspersions on the informant’s reli ability. In Elmore V. Foltz, 14 SCR 15, 13 July 26, 1985, theFALSE Sixth Circuit ALIBI AS EVIDENCE OFGUILT Court of Appeals held that the state’s destruction of potentially Although admitting that the case exculpatory evidence did not consti presented a very close issue, in tute a due process violation. In this V.Rees, 14 SCR 20 BronstonOctober case, the police obtained audio tape 4, 1985, the Sixth Circuit held that recordings of several alleged drug Bronston’s conviction was supported transactions through use of a "wired" by substantial evidence and affirmed. informant. At trial, the defendant The only evidence presented at trial testified that he never sold heroin concerning Bronston’s alleged in to the informant, but that he simply volvement in the charged offense was had been returning drugs belonging to 1 that he and the two co-defendants the informant that the defendant had had left the home of one of them 1 been storing for him. The defense 1/2 to 2 hours before the offense claimed that despite the testimony of occurred, 2 that he went back to the the informant to the contrary, any of co-defendant’s house the next day to the taped transactions would confirm tell him the other co-defendant had this. Alas, the state had erased all been arrested and 3 that Bronston the tapes for budgetary reasons. To testified he had not been with his determine if the state’s suppression co-defendants at all on the night of - destruction of potentially excul the offense, a claim that was con patory evidence violated the def en- vincingly refuted. The Court found dant’s due process rights, the Sixth that Bronston’s presence with the Circuit followed the guidelines set co-defendants before the offense forth by the United States Supreme raised a rational inference that he Court in California v.Trombetta, - was with them when the crime was U.S. , 104 S.Ct. 2528, 81 L.Ed.2d committed, although this evidence a- 413 1984. Under Trombetta, supra at lone was not sufficient to establish 2534, to meet the standard of guilt. That Bronston went back to one constitutional materiality, the de co-defendant’s house the next day to stroyed evidence must posses an advise him of their friend’s arrest exculpatory value that was apparent was as indicative of innocence as before the evidence was destroyed and guilt according to the Court. must be of such a nature that the However, the fact that Bronston defendant would be unable to obtain offered false alibi testimony could comparable evidence by other rea be used by the jury to strengthen the sonably available means. other permissible inference of guilt, and together they constituted sub The Sixth Circuit noted that the stantial evidence of guilt. chances that the tapes would have exculpated Elmore were negligible and DONNA L. BOYCE other means were available to cast

22 View Plain Search and Seizure Law and Comment

I Ernie Lewis

I have always suffered from near importantly, an attitude by the pre sightedness both as a physical con 1960 Kentucky Court of Appeals cher dition and as a professional ina ishing the rights that we have under bility to learn the lessons of Section 10 of the Kentucky Consti history as it applies to juris tution. prudence. I am one of the those lawyers who thinks that until the One such case is the case of Benge ‘I. Warren Court, no one in any of the Commonwealth, Ky., 321 S.W.2d 247 states had any rights. Among those 1959. There, police officers ser rights, .1 assumed, regularly denied ving a bench warrant had not only citizens was the right to be free arrested the defendant with a warrant from unreasonable searches and but also searched the premises with seizures. This has typically led me out one. A number of years earlier to overestimate the effect of Mapp v. the United States Supreme Court in Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 United States v. Rabinowitz, 339 U.S. L.Ed.2d 1081 1961 on the rights of 56, 70 S.Ct. 430, 94 L.Ed. 653 1950 the citizens of Kentucky. Conversely, had held that evidence seized under this has also led me to assume that these circumstances were admissible. the radical shift in attitude by the The Kentucky Court of Appeals on the Berger Court toward the Fourth other hand held that such evidence Amendment has had and will have a would not be admitted in the Kentucky greater impact than perhaps may be courts. "It is our view that every the case. pertinent provision of the Fourth Amendment to the Federal Constitution Former KBA president and Madison was bypassed when each search and the County sage Charles Coy has on a results thereof were stamped by those number of occasions told me that one cases with, validity," remarking on of the biggest mistakes Kentucky de the decision in Rabinowitz. The Court fense lawyers make is in failing to observes that Section 10 of the use the state constitution to but Kentucky Constitution does not differ tress their. search and seizure a great deal from the Fourth Amend claims. He has told me that before ment to the United State Consti the Warren Court, Kentucky had many tution. However, it should make the appellate cases which at least Kentucky defense lawyer proud to note equalled or bettered the case law of the Court’s allegiance to Section 10 the Warren Court. and its rejection at that tIme of what was to become later a temptation I decided to take him up on’ that and the United States Supreme Court could spent one recent rainy Saturday not resist when it established the afternoon leafing through the good faith exception in United States Kentucky Digest to see if in fact V. Leon, 468 U.S. , 104 S.Ct. there were any cases of note in this 3405, 82 L.Ed.2d 677 1984. The area of the law pre-dating the Warren Court said "in forbidding unreason court. I was pleasantly surprised. able searches and seizures, Section J What I found was a number of good 10 of the Constitution of Kentucky search and seizure cases, and more made certain procedural requirements

23 requirements indispensable for lawful that person’s bags without a warrant. searches and seizures, as has been Simmons v. Commonwealth, 203 Ky * 621, pointed out. It did not mean to 262 S.W. 972 1924, held that an substitute the good intentions of the officer who legally was knocking on police for judicial authorization the door in order to find the source except in narrowly confined situ of a noise disturbance, and who ations. History, both before and thereUpon viewed contraband when the after the adoption of the Fourth resident opened that door could ‘not Amendment upon which Section 10 of then seize that contraband without a Kentucky’s Constitution is based, has ‘warrant. shown good police intentions to be inadequate safeguards for certain fundamental rights of man." 321 S.W.2d at 250 Emphasis added.

When faced with a good faith pleading by a prosecutor counsel should use the Benge case to argue that our tradition rejects that policy argu ment, stressing instead the impor tance of compliance with Section 10 procedure.

This same attitude is demonstrated in Byrd et.al. v. Commonwealth, Ky., 261 S.W.2d 437 1953. The language used to express the opinion in !yrd is really more important than the facts. One cannot even imagine the present Court’s viewing Section 10 in’ the following manner: "...the rules of law pertaining to search warrants are of more than ordinary strictness. Courts never regard lightly the ex These cases demonstrate the wisdom of traordinary and unusual procedure Mr. Coy’s look backwards. I would authorized by search warrants and are suggest that any attorney with a evermindf ul of the constitutional search and seizure issue in one of guarantee to citizens to be free from their cases would be doing their unreasonable search and seizure. If client a great service to not only it were not so, officers in their cite the Kentucky Constitution’s zeal to enforce the criminal laws... Section 10 in their pleadings, but to would not regard the constitutional also use a rainy Saturday afternoon safeguard as seriously as the framers to look back for a wealth of con of the Constitution of Kentucky and stitutional jurisprudence. It is up the Constitution of the United States to us to become educated on the old intended." 261 S.W.2d at 438J There search and seizure law of our Com are many other interesting cases monwealth. More importantly, it is up similar to the above ones cited. A to us to educate the ‘Court of Appeals couple of examples will demonstrates and the Supreme Court of Kentucky who my point. In Youman v.Commonwealth, can be expected to have forgotten the 189 Ky. 152, 224 S.W. 860 1920, the old search and seizure law just as Court held that despite the lawful much as Kentucky lawyers have rele arrest of an individual, it was a gated those cases to forgotten his violation of Section 10 to search tory.

24 Just such a resurrection or at least arena. Unfortunately, the decision is the beginning of resurrection of an unpublished, despite the fact that it ‘ dent case law has occurred in Ver apparently is one of the first times mont. There, the Vermont Supreme that the appellate courts in Kentucky Court in State v. Jewett, 37 Cr.L. have considered the good faith ex 2409 Vt. 1985, implores the state’s ception uder United States v. Leon, bar to begin to utilize the state’s 468 U.S. -, 104 S.Ct. 3405, 82 constitutional provisions on search L.Ed.2d 677 1984. In Maddox V. and seizure. The Court noted that Conuonwealth, unpublished Oct. 10, since 1970 over 250 cases across the 1985, the Court considered and re country have interpreted state con jected the good faith exception to stitutional provisions as broader the warrant requirement. In this than that provided by the United case, a Kentucky State Police Officer States Constitution. The Court urged with nine years of experience used a the lawyers of the bar of Vermont to form affidavit with which to apply rediscover the old cases, ‘to find for a search warrant. In that affi legislative history, to resurrect old davit, he simply stated that there arguments. They criticized the ten was probable cause to believe that dency that we all have of immediately the property he wanted to seize had going to the Fourth Amendment when been "used as the means of committing analyzed search and seizure ques a crime." Armed with that warrant, tions, saying "all too often legal the Kentucky State Police searched argument consists of a litany of and seized scales, paraphernalia, federal buzzwords memorized like marijuana, and other incriminating baseball cards." Ouch. The Court goes matters. The Court reviewed the war on to state that "to protect his/her rant, which parroted the affidavit client, it is the duty of the and allowed for the seizure of "any advocate to raise state consti and all personal property," and held tutional issues where appropriate, at that it was a bad warrant due to the trial level, and to diligently there being insufficient particu develop and plausibly maintain them larity, resembling a general warrant. on appeal." After holding that the warrant was a One would doubt whether our appellate violation of Section 10 of the Ken courts will be issuing such a clarion tucky Constitution and the Fourth call to the state’s bar to begin to Amendment, the Court considered the resurrect our rich Section 10 heri Commonwealth’s position that the tage in cases before them. We cannot evidence still could be admissible expect them to resurrect that heri due to the fact that the Kentucky tage on their own. Rather, it is up State Police officer had seized the to us to begin to place before them evidence in good faith, citing Mass

cases, facts and issues which will achusetts v. Sheppard, 468 U.S. -, make it possible to once again 104 S.Ct. 3424, 82 L.Ed.2d 737 preserve our rights against un 1984. The Court of Appeals dis reasonable searches and seizures in tinguished the Sheppard case, saying this Commonwealth. that in Sheppard the fault was with the magistrate, and thus suppress ing the evidence would have no de terrent effect on the police. Here The Short View the Court noted that the fault was with the trooper himself. "An ex 1 The Court of Appeals of Kentucky perienced police officer should have has recently issued a significant known that a warrant issued on such opinion in the search and seizure an affidavit was invalid, and there-

25 fore, his conduct was not ‘objec of the police, it had to be shown tively reasonable’ as was the of that the police had instigated, en ficer’s conduct in Page 5, couraged or participated in the Master Slip Opinion. search and that the individual was acting with the intent to assist the 2 The Sixth Circuit has also police. The Court held that in the delivered a Fourth Amendment opinion instant case, all of the instigation in ,United States v. Lambert, 14 6th had been by the housekeeper herself SCR 16 Vt. 8-16, 1985. There, the and thus the state had done nothing Court in a celebrated Kentucky case to initiate the search. looked at the situation where Jimmy Lambert’s housekeeper saw illegal 3 State v. Kimbro, 37 Cr.L. 2462 drug activities and decided to inform Conn. 1985. Yet, another state has the FBI of that fact. In doing so, rejected the probable cause standard she took particular contraband to the of Illinois v. Gates, 462 U.S. 213 FBI to help prove her point. A 1983. Connecticut had done so under grateful FBI paid her for her infor their own state constitution, calling mation. Based upon that information, the Gates standard, "too amorphous." the FBI secured a warrant, searched As all of the other states have done Lambert’s house and seized a great who have similarily rejected Gates, deal of evidence. the Court retains the Aguilar/ Spinelli test saying that this test "protects individual rights without disadvantaging law enforcement." The Connecticut Court was joined in its actions by the Alaska Supreme Court, which similarily rejected Gates in State v. Jones, 38 Cr.L. 2042 Ala. 1985.

4 Crittenden V. State, 38 Cr.L. 2035 Ala. 1985. The Court reviewed an affidavit which stated that the accused had had illegal sexual contact with the affiant’s daughter. The Court, calling the affidavit barebones, stated that this was in sufficient upon which to issue an arrest warrant. The Court, in terestingly rejected the good faith exception claim by the state, saying that United States v. Leon did not apply to barebones affidavits.

5 Commonwealth v. Borges, 37 Cr.L. 2464 Mass. 1985 and Commonwealth v. Bottari, 37 Cr.L. 2465 Mass. 1985. The Court held, following Lambert’s In two cases, the Massachusetts guilty plea, that the housekeeper was Supreme Court has held that what the a private person, and this was a state called a stop and frisk was in private search. The Court examined reality an arrest, thereby requiring the issue of whether she was acting probable cause. In both cases, the as an agent of the police. They held Court held that because there was no that in order for her to be an agent probable cause, that the arrest was

26 illegal and evidence seized following -, 83 L.Ed.2d 720, 105 S.Ct. 733 the arrest could not be admitted into 1985 decision, the California Court L/ evidence. In Commonwealth v. Borges, of Appeals demonstrates how little the police required the defendant to suspicion there need be present in take off his shoes in order to keep order to justify a search of a stu him from running. The Court held that dent in a school setting. In that this turned a stop into an arrest. case, th student was in a restroom The Court went on to analyze probable without a pass and was hesitant upon cause under the Aguilar/Spinelli questioning by the administrator. The test, holding that the state did not Court held that this justified the have probable cause. Similarly, in subsequent search of the student. Commonwealth v. Bottari, the Court stated that blocking a person’s car 8 DeMassa v. Nunez, 38 Cr.L. 2002 and approaching with guns drawn is an 9th Cir. 1985. The Court held that arrest rather than a stop. The Court the client, apart from the attorney, concentrated on the degree of re has an expectation of privacy in straint in order to evaluate whether terest in his file. a stop was an arrest or merely a seizure. 9 State v. Superior Court Blake, 37 Cr.L. 2414 Sept. 1985. The Court 6 !ple v. Bertine, 38 Cr.L. 2041 here held that the HGN or "horizontal Co].. 1985. The Colorado Court con gaze nystagmus" field sobriety tests sidered an issue which appears to be is of sufficient reliability to sup ripe for United States Supreme Court port a finding of probable cause. The review. In the Bertine case, a ve reason this case is important is to hicle was seized and impounded law- demonstrate that counsel should be fully. The police thereupon took a alert to the different field sobriety backpack from the car and searched jn tests and their requisite relia Q the backpack finding incriminating bility, due to the fact that if a evidence. The Court looked at South test is not reliable, then "failure Dakota ! Opperman, 428 U.S. 364 to pass" a field sobriety test cannot 1976, Arkansas v. Sanders, 442 U.S. be used to constitute probable cause 753 1979, and United States V. to arrest or to require a breath- Chadwick, 433 U.S. 1 1977 in alyzer. reaching its decision. The Court held that the backpack could not be 10 United Statee V. Miller, 37 Cr.L. searched without a warrant saying 2443 9th Cir. 1985. The Court held that this was much different from the that while a warrantless seizure of a situation in a jail where a more clear plastic bag falling out of a complete inventory search is neces traveler’s suitcase is lawful, the sary due to security considerations, search of the bag without a warrant distinguishing Illinois ! Lafayette, is not. The Court stated that plain 462 U.S. 640, 103 S.Ct. 2605, 77 view seizures must be confined to the L.Ed.2d 65 1983. Note that this is seizure of the article, as opposed to not a United States v. Carroll, 267 a search of that article. U.S. 132, 45 S.Ct. 280, 69 L1Ed.2d 543 1925 situation where there was 11 Blackburn v. Snow, 37 Cr.L. 2445 probable cause to believe there was First Cir. 1985. The Court held contraband in the car. that a general policy of body cavity strip searches of all visitors with 7 In Re Bobby Raymond B., 2d Dist. out some individualized suspicion is 38 Cr.L. 2066 Cal.Ct.App. 1985. In violative of the Fourth Amendment. one of the first cases interpreting L the New Jersey v. T.L.O., 469 U.S. Ernie Lewis

27 Trial Tips For the Criminal Defense Attorney

I

ACTIONS GOVERtIIENT AGAINSTLAWYERS tressed as are prominent attorneys we "ALL THINGS CONSIDERED" interviewed in San Francisco, Los National Public Radio Angeles, Atlanta, Boston, Philadel phia and Miami. In all these places, NINA .TOTENBERG: For more than a year and more, they say, defense attorneys now there have been quiet rumblings are fighting not only for their cli among this nation’s criminal defense ent’s causes, but all too often, for attorneys about what they see as their own right to represent mounting attacks on lawyers by the citizens accused of crime. One case Department of Justice. They claim that has drawn attention from some that they have been subjected to un twenty state and national lawyers’ warranted raids on their offices, to groups is the indictment of San Diego invasive subpoenas of their files, attorney, James Warner. A ten year and even indictments for giving nor practitioner known for successfully mal, proper, legal advice. Some even representing drug defendants. warn of witch hunts and assaults on the citizen’s ability to hire at JAMES WARNER: The government sent in torneys. The Justice Department dis an individual to talk to me on nu misses these complaints charging that merous occasions who was asking for too many lawyers, especially drug legal advice. The individual was lawyers, play fast and loose with the wired by the government. The in nation’s most vicious criminals. They dividual had been given immunity by say the prosecutors are only balan the government. The individual was cing the score. We begin a two part sent to me with the express purpose series this evening with this story of trying to set me up to say prepared by NPR’s Frank Browning. something which the government could then indict me on. I didn’t say any HARVEY SILVEILATE: There has been a thing that was contrary to the Con definite trend around the country to stitution, but the government went go after, for prosecutors, particu for it regardless on the indictment. larly federal prosecutors, to go after criminal defense lawyers and I FRANK BROWNING: The indictment a say go after them, not because of any gainst Warner for obstruction of jus crimes they have committed, but they tice came after he met with wit are going after criminal defense nesses. One of them, an undercover lawyers simply because these lawyers government informant, and advised are defending unpopular people, in them of their rights in testifying some cases very vigorously. before the grand jury.

FRANK BROWNING: That is Harvey Sil JAMES WARNER: I advised certain vergiate, one of America’s most pro people to take the Fifth Amendment. minent and most successful defense They had a right not to incriminate attorneys. A man who has long held themselves and when that’ information the respect, if not the love, of got back to the government,’ I was state and federal prosecutors across indicted for it. the land. Silverglate is deeply dis-

28 PROSECUTOR EDWARD WINER: I suppose thing, he says, they are the result it’s standard for a defense attorney of greed in the illegal drug in to advise his client to assert the dustry. fifth amendment privilege. It’s not standard, at least I don’t know about PETER NUNIUS: There is so much money defense attorneys who do not repre to be made in the narcotics business, sent individuals who are in fact overwhelm.thg numbers, more money than represented by other lawyers, the anybody ever dreamed of, I guess, statutes and the case law with regard that handling the money and figuring to these statutes say that a defense out how to hide it, what to do with attorney who, with corrupt motive and it, how to spend it without being corrupt intent, , advises someone to caught, becomes a problem. Therefore, assert their fifth amendment pri more and more professional people vilege against self-incrimination, have been enlisted in the cause, so can be found guilty of obstruction of to speak, to help narcotics dealers justice. to launder money.

FRANK BROWNING: Because the witnesses FRANK BROWNING: It is the federal had not formally retained Warner, and government’s honest determination to because another of Warner’s clients track the money trail of big’ time was under investigation, the govern drug rings that has both won praise ment argues that he had no right to from the public and raised con advise witnesses of their legal and stitutional questions over prose- constitutional rights. Warner claims cutorial behavior. For example, Bos the government charged him out of ton lawyer, Harvey Silvergiate, dis frustration with its failure to con covered last year in one such case vict actual criminal defendants. that a witness who participated in a t Defense attorneys in San Diego are defense strategy meeting was really especially upset these days and not an undercover government informant. just about Jim Warner. More than The informant justified going into twenty lawyers have been indicted in the meeting on the grounds that money the last four years, which is more laundering would be discussed. than had even been charged in the Although the information he provided previous two decades. to the drug enforcement administra tion did not affect the case, U.S. Attorney Peter Nunius says those Silvergiate regards the incident as a prosecutions are not the result of grave threat to the attorney/client government targeting. More than any- privilege.

BLOOM COUNTY

c,I ri I PWAY VtiU H57- 6O1O.iRtK- b1EMP *IOflER. ffiV. ‘_4 /

c 1984 The Washington Post Co.

29 HARVEY SILVERGLATE: There is such a NANCY GERTNER: The net effect of that thing as the sixth amendment right to is to put a lawyer before a confi- assistance of counsel. that includes dential body and ask questions which the confidentiality, protects the then can’t be disclosed and fun confidentiality of attorney/client damentally break apart the lawyer/ meetings. If the government starts client relationship. That’s the first sending spies in to attorney/client resul’t of it. The second result is meetings, then there is no sixth that having become a witness in the amendment left, there is no right to case, which I plainly would be, I can counsel left. Could you imagine what no longer function as his lawyer. And would happen to me if I had sent a that means that the government, by spy to sit in on meetings between him targeting who they are going to sub and the drug enforcement people poena, can pick who will ultimately plotting their case? I’d be indicted be trial counsel. for obstruction of justice. Can you give me one good reason why the re FRANK BROWNING: The question of how verse shouldn’t apply? far the government may go in sub poenaing an attorney’s files is one FRANK BROWNING: Government efforts to of the most sensitive areas in track drug money have led to another American law. Nothing is more sacro tactic that has brought cries of sanct historically than the privacy outrage from defense attorneys. That of the citizen’s relationship with a is the subpoenaing of lawyers’ finan lawyer. Yet the government now argues cial records. Last year, Silver- that information about financial glate’s partner, Nancy Gertner, was agreements between lawyer and client subpoenaed by a federal grand jury in are not privileged, even if evidence New Hampshire to appear and supply gained from them may lead to further

all financial records concerning a indictments. ‘ Harvard law professor, client she was, at that moment, de Charles Nessan, has paid particular fending on drug charges in state attention to the issue and has ad court. Similar federal subpoenas were vised Gertner on her subpoena. sent to four other lawyers defending clients in the case. CHARLES NESSAN: The thought that mo tivates the prosecutors is the basic NANCY GERTNER: They subpoenaed me be prosecutorial strategy of "follow the fore a grand jury presumablY to talk money." So their idea is one of the about what the source of my fees were people who get money as the result of and the amount of my fees. a criminal enterprise is the criminal defense lawyer and if we can track FRANK BROWNING: Prosecution reasoning down where the criminal defense law in such subpoenas is that drug opera yer is getting his money from, maybe tors often offer legal representation we can learn something about the as a fringe benefit to their em organization. It’s a perfectly tin ployees, and, therefore, such legal derstandable strategy if you are not services are actually part of the terribly concerned with how people go ongoing criminal conspiracy. py iden about getting defended. tifying who pays the lawyer, the government can, in the process, learn RUDOLPH JULIANTE: From my inter who higher level members of the con pretation of the Constitution, I rely spiracy are and bring indictments not on law professors, but on judges. against them. Again, attorney Nancy Gertner. FRANK BROWNING: That is Rudolph Juliante, United States Attorney for

30 the Southern District of New York. As creasingly in recent years that court associate attorney general during the should not permit attorneys to repre first two years of the Reagan sent more than one client in a case, administration, he pressed hard for thereby avoiding possible conflicts tougher drug and organized crime of interest between the clients. But prosecutions. He dismisses the con Ellis claims there is another motive cerns of lawyers like Nessan and in the government strategy. Gertner as the complaints of the self-interested.

RUDOLPH JULIANTE: Judges have ruled on the sixth amendment from time im memorial that it protects communi cations with the lawyer, not f i nancial dealings so that it is per fectly proper for the government to inquire as to the amount of fees that people pay, and the money trans actions that go on between a lawyer and a client or between a client and a lawyer. That is not privileged; it has never been privileged, and a lot of these so called professors that expound on this subject, yes, they teach, but their real income comes from lending themselves out as hired guns for people that have been ac cused or convicted of crimes.

FRANK BROWNING:, In fact, judges are highly divided on the matter of sub poenaing lawyers’ financial files. ALLAN ELLIS: To get the good at U.S. District Judge, Martin Lockland, torneys off the cases. It’s kind of rebukes the government for going akin to an opposing coach requiring after Gertner and other lawyers in head coach of the Philadelphia 76ers the New Hampshire case and accused not to use Moses Malone on a case. the government of direct harassment. The government is, in effect, picking Use of such subpoenas he scolded, and choosing who they’re going all would not merely be chilling, but out to defend people accused of crime would have an arctic affect on the in this country. lawyer’s ability to represent their clients, and would have left them FRANK BROWNING: Taken all together, bereft of constitutional safeguards. Ellis warns that these measures will According to Allan Ellis of the have a far greater impact than simply National Association of Criminal De hobbling relations between drug Lawyers, fense there has been an ex- dealers , and rich lawyers. That, in plosion in what he calls active fact, they disarm.the citizen before government harassment of defense law the government. yers, up from 5 recorded incidents in 1982 to more than 50 in 1983. Closely ALLAN ELLIS: If you are going to go allied with the use of subpoenas are after the attorney and turn them into government motions to have lawyers a witness against his client, you are L disqualified from representing their going to destroy the attorney/client clients. Prosecutors have argued in- relationship. But it’s not just crim

31 male who are going to be fearful of over crime seems to encourage prose confiding in counsel, it’s everybody cutors to use whatever tools they who’s not going to want to speak to need, the cries and alarms of the their attorney and not want to di criminal defense bar have found vulge secrets to the attorney for little support. fear that the attorney is going to be subpoenaed at some time and ask what I’m Fr1ank Browning reporting. did your client tell you. The above was broadcast by National FRANK BROWNING: All of which prose Public Radio on December 26, 1984. cutors say is simply defense Copyright 1984, National Public hysteria. If a U.S. attorney moves to Radio. Reprinted with permission. have a lawyer disqualified or sub poenaed or indicted, it is only done on the merits of each case. But in * * * * * interviews with NPR across the coun try, Justice Department officials did Overworked P.D.s Urged to acknowledge that lawyers are being Decline New Cases watched far more closely than in the past. Knowledgeable congressional The Committee on Professional Ethics staff members also say there began to for the Wisconsin State Bar has be a change in Justice Department’s recommended that a staff attorney behavior in the early 80’s. Speci employed by a state public defenders fically after the fall of 1982 when office should decline for ethical President Reagan announced his cam reasons new legal matters when his or paign against drug dealers and or her workload makes it impossible to ganized crime. The staffers say that, adequately prepare for cases or to then Deputy Attorney General, Rudolph represent clients competently. Law Juliante, told them that the govern yers were advised to continue repre ment would intensify its campaign by sentation in pending matters only to going after bankers, accountants and the extent that the duty of ôompetent lawyers. non-neglectful representation can be fulfilled. NLADA Cornerstone, March RUDOLPH JULIANTE: That’s absolutely /April 1985, p. 2 true and I think whenever you say anything or try to do anything in government, there are always a large * * * * * * * group of skeptics who can find 50 reasons why it can’t work; won’t work; or it’s going to break and fall Furthermore, treatment of poor crimi down. In fact, this is one of those nals is different from that of the programs, the Organized Crime Pro well-to-do. The most egalitarian gram, that has worked dramatically sentencing judge is likely to find better ‘than I even thought it would that the affluent are more promising when we first initiated it. The num candidates for probation if only be bers of people indicted at th high cause they have the needed friends est levels of organized crime nation and family support. Some judges wide exceeds any time in our history. openly refuse ‘ to send genteel de fendants to prisons full of dan FRANK BROWNING: And that, Juliante gerous, violent inmates, as if the says, is the only true measure of the poor are not also victimized. government’s actions. Lawyers who have nothing to hide, have nothing to fear. At a time when public anxiety JOHN P * MacKENZIE

32 One footnote to this topic that Forensic Science should be addressed is the myth that shotguns create a wall of pellets that does not even necessitate aiming. Like all projectiles, pellets tend to travel in a straight line unless interrupted by gravity, fric- ,tiori or other interferences. As a result, pellet groupings or patterns are much tighter than the average lay person would suspect, even for those shotshells fired from the "sawed-off" versions. Most modern shotshells em ploy shot protectors which influence the pellet pattern more than the length of the shotgun barrel. In es sence the barrel serves only as a launching tube for the pellets en capsulated in the shot protector. Therefore the barrel length and choke designation may have some influence on resultant shotshell patterns; how Editor’s Note: We are delighted to ever, the shot protector by far plays begin a column in each issue of The the most important role in pellet Advocate on forensic science. If you spread. would like to see particular topics covered- please let us know. Thanks Jack Benton and Pat H. Donley to Jack Bent on and Pat Donley for this new column. FORENSIC ASSOCIATES Shotgun Patterning Relative To Distance Determinations Providing complete support to at torneys in all aspects of scientific Frequently it becomes necessary for a and investigative matters for civil firearms examiner to determine the and criminal litigation. distance from which the muzzle of a shotgun was discharged into an object Areas include, but are not limited to, firearms identification and func and/or person. Based on the spread or tionability, fire cause and origin size of the resultant pellet pattern, investigation, laboratory identifica the characteristics of the entry hole tion of fire residue accelerants, and a consideration of the absence or accident reconstruction, DWI or presence of gunpowder-produced par alcohol related matters, trace evi ticulate matter, as mentioned above. dence, serology, drug analysis, This testing procedure is a com engine oil contaminant studies, bination of gross visual inspections wood shingle damage determina and/or chemical testing. As with ll tions, latent prints. subjective and comparative examina tions, however, the attorney faced Full time full service private crime with these results should require laboratory. that all such test patterns be made available FORENSIC ASSOCIATES to him so he can confirm or P.O. Box deny from them. 64561 the conclusions drawn Lubbock, Texas 79464 806 794-3445

33 The child is suddenly receiving rapt I attention when it says or demon strates certain things e.g. pointing TipTrial at the genital plumbing on the "anatomically correct" dolls or saying ,,things such as "he touched me here... put his mouth on me... made me touch him, etc.". Often this scene is repeated. * THE CASE FOR A THERAPEUTIC INTERVIEW IN SITUATIONS OF ALLEGED SEXUAL MOLESTATION

There is a right way and a wrong way to interview children in case of al leged molestation. The right way can result in more information and helps children. The wrong way gives ques tionable information and can hurt children. j ... Unfortunately, ways in which children - 4 are currently being interviewed in these cases are damaging to them because, quite simply, they aren’t being given the opportunity to tell the truth. Typically, it is the in terviewer’s needs which are taken Interviewers--verbally and nonverb care of and not the child’s. The ally through facial expressions and story that is told is too often the the manner in which they respond to one the interviewer wants to hear and the child--pay more attention to not the actual one. these sorts of communications than to anything else a child might be trying The purpose of the interview is, to express. I know of cases where after all, investigatory. Therefore, the interview has congratulated the a number of questions need to be child for making allegations and asked. However, it can be much more became perturbed with it didn’t. fruitful to ask these questions in ways that don’t lead the child to In this setting which is "high feel that certain sorts of answers pressure" to the child, especially a are expected. This is the difference young one, a strongly biased inter between getting accurate information viewer can shape a child’s responses and not getting it. by a method called "successive ap proximation." Simply put, this means Typically, the child is interviewed reinforcing or rewarding the child by various agency people, sometimes through smiles, hugs, or statements repeatedly. This might include po like "good girl.., don’t you feel lice, prosecutors, children’s service better now... that’s the way" for workers, sometimes a grand jury. statements leading up to and finally These interviews are narrow in focus including those the interviewer wants and they are based on the assumption to hear. that abuse did occur and that "children don’t lie about this sort This sort of attention is often quite of thing." new for a child, and it is a most

4 34 powerful reinforcer. That is, it General Comments and Recommendations greatly increases the likelihood that the child will say the same things So how should we examine children in and demonstrate the same things cases of alleged sexual abuse? again. And, the more a child repeats something and don’t we all suffer There is a myth propagated by "abuse confusion about one or another story detectors" that "children don’t lie we’ve told ourselves many times over about these things." Yet there is no the years?, the more it becomes real evidence to back this up. On the believable and the more believable contrary, Jean Piaget in his monu the child becomes on the witness mental work on "The Moral Development stand. of Children" showed that, until the time they are five or six years old, Thus, two powerful variables which a "lie" to a child is whatever an affect learning - reinforcement and adult says it is. This notwith

repetition - can be allowed to seri standing the often clumsy attempts by. ously shape a child’s memory. We prosecutors and child service workers haven’t touched on instances in which to establish that the child knows the a child knowingly lies. This can difference between the truth and happen when for its own protection falsehood. the child assumes the attitude of one parent who is angry with another; or Additionally, children’s responses when it has been coerced; or even can be conditioned by what the com when it is angry over some real or plaining parent and/or the investi imagined harm the defendant has gator believes, and what their own done. responses are, intentional and unin tentional, to what the child says or A therapeutic interview, on the other does. And, as previously mentioned, hand, is an unbiased attempt to find the reinforcement the child typically out what story a child might have to gets in these interrogations is a tell, or what conflicts it might need powerful factor in shaping its re to express and resolve. The setting sponses and imbedding them in its is unstructured and open-ended to conscious mind. encourage a free narrative. It is encouraged to feel safe and com These considerations make it. basic, fortable enough so that it can, if then, that the child be examined by need be, spontaneously act out with an experienced, unbiased profes dolls, drawings, stuffed animals, or sional. just "play acting," anything it can’t or doesn’t want to put into words. Their interviews should be audio or video taped in their entirety. Stress distorts and blocks memory. A child who is anxious depends, to a Diagnoses and recommendations should greater degree than one who isn’t, on, rest on clear cut, well-reasoned the interviewer to "fill in the data, and not on anecdotal material blanks" and provide some way to allar or arcane psychodynamic formulations. this anxiety. A child who is not anxious, but comfortable, is not only During these interviews one should able to be more accurate in re establish the extent to which the membering things but is much less child is in touch with reality; to likely to be conditioned by a zealous what extent does it know the dif investigator. ference between "pretend" and "real"?

35 Does the child seem "programmed" and These evaluators should be "... give rote responses or can it go from exquisitely aware of their own biases general to specific examples? and presumptions."1 Sadly enough, most of the "abuse professionals" are The setting should be open and non- not in honest touch with their real pressured. Children should be en motives and are "masquerading tyranny couraged to express themselves and as carity."2 tell whatever story they might have through use of toys, drawings, stuf -William F. Mclver, Ph.D. fed animals, etc. with a minimum of Clinical Psychologist direction by the interviewer. When By Permission of the Oregon Criminal left to their own devices in a re Defense Lawyers Association laxed and even playful setting, children who are stressed by having been abused, or by having adults incorrectly act as if they were abused will sometimes spontaneously act out their experiences.1Schuman, It is up Daniel C.,M.D. "False Ac to the therapist to find out what cusations of Physical and Sexual this means. Abuse," presented to the Annual Conference of the American Academy of The therapist-investigator should Psychiatry and the Law, Nassau, obtain as much information about the Bahama. October 26, 1984. child and the alleged incident as possible. This includes police re 2Whitefield, Donna. "Tyranny Mas port, children’s service reports, querades as Charity: Who are the Real medical and school records, and, if Child Abusers? Fidelity, February possible, observation of the child 1985. with the alleged offender.

Kevin McNally, Assistant Public Advocate, spoke at the 1985 Circuit Judges Judicial College. He is shown here with Assistant Attorney General, Dave Smith to his left, Circuit Judge, Edmund Pete Karen, and Assistant Attorney General, Paul W. Richwalsky, Jr.

36 results indicated he had been Cases of Note... deceptive. "The reason for excluding from evi dence any reference to polygraph ...in Brief tests is the highly prejudicial ef fect such reference might have on the jury. When all references to poly graphs are deleted, the offending * FUNDS/PRIVATE COUNSEL prejudice is removed. In this case, Hale voluntarily presented himself 600 P.2d 1383 Hawaii 1979 for the examination and prior thereto he was fully advised of his con The indigent defendant was repre stitutional rights. He must have been sented by private counsel retained by aware that the examiner would inter the accused’s parents. His retained pret the results either to indicate counsel asked the trial court to that he was being deceptive or that provide funds to employ an investi he was being truthful. Upon being gator to assist in the presentation informed of the unfavorable results, of the case. The trial court refused Hale might have expressed surprise, based on the fact that the defendant indignation, or disbelief or he might was represented by retained counsel. have kept quiet. Instead, he chose to make a statement. The trial court The Supreme Court of Hawaii held that properly admitted that statement in the trial court’s conclusion that the evidence." defendant was ineligible ‘for funds solely because he was represented by By this ruling, it is clear that the private counsel was improper. The Court had no desire to encourage Court remanded the case for an ex defendants to subject themselves to parte hearing to allow the defense a state police polygraphs and inter particularized showing of why the rogations. requested services were essential to an adequate defense and to demon EXPEWP ON EYEWITNESS ID strate the defendant’sState indigency. v.Chapple 660 P.2d 1208 Ariz. 1983 Recognizing the "magnitude" of this error, the Court held that it was Identification was the critical issue appropriate to be litigated by an in this case. Defense counsel prof extraordinary writ. fered the testimony of an expert on eyewitness identification to rebut POLYGRAPH AE*USSIONS the prosecution’s evidence. The trial v.Commonwealth court excluded the evidence.Hale The Ky.App., October 11, 1985 Arizona Supreme Court reversed after looking at four criteria for admis A word to the wise.... In this un sibility: 1 qualified expert; 2 published opinion, the Court, of proper subject, 3 conformity to a Appeals decided that it was propr to generally accepted explanatory allow Sergeant Gary Godby, a poly theory; and 4 probative value com graph examiner with the Kentucky pared to prejudicial effect. State Police, to testify to a state ment made to him by the defendant The Court determined that it cannot after the examiner administered two be assumed "that the average juror polygraphs and told the defendant the would be aware of the variables concerning identification and memory

37 about which" the expert was qualified and its relationship to accuracy. to testify. Dr. Loftus’ testimony and some experimental data indicate that there "For instance, while most jurors is no relationship between the would no doubt realize that memory confidence which a witness has in his dims as time passes, Dr. Loftus or her identification and the actual presenjed dat4 from experiments which accurac& of that identification." showed that the ‘forgetting curve’ is not uniform. Forgetting occurs very RECEIVING STOLEN PROPEETY rapidly and then tends to level out; Housev.Commonwealth immediate identification is much more Ky.App., October 25, 1985 trustworthy than long-delayed iden tification." In this unpublished case, the Court of Appeals held that in receiving "Another variable in the case is the stolen property cases that the Com effect of stress upon perception. monwealth must "negate any intent to Dr. Loftus indicated that research restore the property to the owner." shows that most laymen believe that Disproof of the accused’s intent to stressful events cause people to restore the property is thus an remember ‘better’ so that what is essential element of the offense on seen in periods of stress is more which the Commonwealth bears the accurately related later. However, burden. experimental evidence indicates that stress causes inaccuracy of percep- Ed Monahan ti9n with subsequent distortion of recall." * * * * * *

"Dr. Loftus would also have testified CITY WILL PAY FAMILY abbut the problems of ‘unconscious TO SETTLE BRUTALITY SUIT * transfer,’ a phenomenon which occurs when the witness confuses a person MILWAUKEE AP - The mayor has seen in one situation with a person approved an out-of-court settlement seen in a different situation. Dr. under which the city will pay Loftus would have pointed out that a $600,000 to the family of a young man witness who takes part in a photo who died while being held by police identification session without iden for questioning about a rape he did tifying any of the photographs and not commit. who then later sees a photograph of one of those persons may relate his Mayor Henry Maier on Friday signed a or her familiarity with the picture resolution, approved earlier by the to the crime rather than to the pre Common Council, settling a police vious identification session." brutality lawsuit brought by the parents of 22 year-old Ernest Lacy, "Another variable involves assimi who died on July 9, 1981. lation of post-event information. Experimental evidence, shown y Dr. Witnesses said that Lacy had been Loftus, confirms that witnesses fre forced to the ground by members of quently incorporate into their the police Tactical Squad, while his identifiations inaccurate informa handcuffed wrists were behind his tion gained subsequent to the event back. and confused with the event." The agreement was approved by U.S. "The last variable in this case Magistrate Robert Bittner. concerns the question of confidence

38 No Comment

Send your contributions to The Advo you in a clone case and in a case of cate, c/o Department of Public Advo this importance people must be cacy, Frankfort. All dialogue g-uar- completely free of such influence as anteed verbatim from Kentucky court that, so we will have to dismiss you room records or newspapers. from this jury.

* * * JUROR: In other words you’ve kicked me off. TOFORGET RENENBER * * * JUDGE: We’ll admonish the Jury to disregard the question and answer, if INSUFFICIENT EVIDENCE? you can remember it, whichHELL, I don’t THAT’ S ATECHNICALITY. imagine you do at this stage, but we’ll go back and play it for you if JUDGE: The whole thing...might be you like. circumstantial in a lot of ways but, as I say, with his past record... In * * * my mind, Mr. [Defense Lawyer], it was probably a planned thing and it would WAITI NOT ME, NOT ME! take a lot of evidence to get that THELAWYER!I’M out of my mind...

PROSECUTOR: Do you see in the I’m not bound by a lot of the courtroom today the man that you niceties, I suppose, that a jury confronted in the hallway who had the is... If the truth was known, at one bottle of liquor between his legs? time or another he was in control of the car, yet, of course, it wasn’t

EYEWITNESS: Yes, sir. proven. *

PROSECUTOR: Where is he? The boy knew that the car was stolen... even though it probably EYEWITNESS: That one on the far end. hadn’t been proven,..but by his past record and I mean, my goodness, here PROSECUTOR: Okay, that one, you’re he is, promotion of contraband, he’s pointing kind of in general; [the tried to smuggle hacksaws into the defense attorney] is indicating his jail, he’s dealt in marijuana... He’s client, is that him? just a boil on the public that needs, to be lanced... [I find the defendant EYEWITNESS: That’s him. guilty.]

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PUTTING IT ANOTHERWAY Thanks...afld a tip 0’ the hat to Jay Barrett, Mike Wright, Lee Rowland, JUDGE: Okay, I appreciate the frank Donna Boyce and Larry Marshall. and honest answers that you gave, Mrs. [Juror], and I can certainly KEVIN MCNALLY understand why that could influence

39 ously violated restraining orders to harass his ex-wife. Apparently, the community was aware of the abuse. REAL LAWYERS AREN’T SEATED ON A PEDESTAL OF POPULARITY. THEY WERE Bob Caummisar is active in the Lyons A4IRED, REVILED, FEARED, BUT NOT Club and Jaycees. He is on the Board ALWAYS LIKED. REAL LAWYERS FIGHT of Appalachian Research and Defense HXRD. THAT’S WHAT THEY ARE HIRED TO Fund and the Carter County Public DO. THAT WAS TRUE OF ANDREW HAMILTON, Library. His hobbies include photo JOHN ADAMS, ABRAHAM LINCOLN, CLARENCE graphy, cooking and fishing. DARROW... * Thanks Bob for your long-standing * commitment to the rights of the poor. Charles Morgan, Jr.

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* ULiHL.

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THE ADVOCATE Department of Public Advocacy 151 Elkhorn Court Frankfort, Kentucky 40601

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