* THE ADVOCATE

PSYCHIATRIC DISORDERS CAN BE TREATED

Volume 12, Number 3 April, 1990 THE ADVOCATE FEATURES Bourbon County Public Defender, Lee Greenup

Lee Oreenup,our public defendercontract On its face, it is a difference of $109,621! administrator in Paris, his hometown, likes the quote of Oliver Wendell Holmes that"a man’s mind stretched by anew idea Leeplans to continue as a contract public can never go back to its original dimen defender for a yearor two and then focus sions." Lee has experienced that. Al on his general practice in Paris. He at though there are several lawyersin Lee’s tributes his many successes to his parents, who were "excellent role models." C.L. family,he didn’t getinterestedin law until Watts, Probation and Parole Officer of the his sophmore year at Transylvania when 14th Judicial Dist. of Ky. said, "I’ve hetook a pre-law course. Aftergraduating worked withLee fora long time and I’ve from theU.K. School ofLaw in 1983,Lee always found him honest, fair, above began practicing law in Paris. board and looking for the best results for all concerned. He is willing to do ajob that Lee never considered doing criminal requires a lot of timeand nevercomplains defense work, until the Bourbon Co. about low pay and long hours. I suppose public defender resigned in 1985. Lee he’s able to do that because he’s not a filled the breach and had some of his married man with a family. He’s a real "most satisfying moments as a lawyer." asset to your Department." We think so That led him to seek the contract for the too. Thanks Lee. county. Lee Greernip ed-off’ the burn-out factor due to the CR15 BROWN Lee finds the work stimulating and par heavy caseloads and demands of the job. Paralegal ticularly likes the increase in litigation. He MLSfFraining Sections estimated that 75% of his practice is Lee calls upon 4 area attorneys to handle Frankfort, KY public defenderwork. From July 1, 1988 conflict cases. Heis placed in theuncom - Januaiy 30, 1989, his felony caseload misdemeanor caseload fortable position of asking them to work was 75 cases; his for what he feels is an unfairhourly rate was 104 cases. He is often motivated by HARRY BUDDEN the thought that he’s "the only person $25/$35. Even then Lee has only a 40% standing between the often defenseless collection rate on fees billed, as funds are defendants and the assembled forces of prorated. The "going" rate in Bourbon Co. Harry Budden. Attorney at Law, was ac the Commonwealth." Lee believes that is $70 hourly. tively a public defenderfrom 1973-1976, every case provides a different oppor and did contract work 1982-1985 under Nora McCormick’s administration. He tunity and every client possesses some The criminal justice system is best served "gotout ofpublic defenderworkwhen they redeemingvirtue. That attitudehas "ward- by providing equalfunding forbothpublic changed thelaw allowing the attorney to defenders and prosecutors as "the ration represent a client privately retained by the ale of the adversary system presupposes fanily after havingrepresented himinitial NORA MCCORMICK some type of state approaching equity be ly at the preliminary hearing as a public tween the parties." As in other counties defender.’ "The caseload was such that I was not around the state, this simply isn’thappen being compensated on an adequate basis. I ing in Bourbon Co. The FY ‘89 DPA "Given thatlegislalion and that itis impos figuredout for thenumber of hoursworked Contract for Bourbon Co. pays $15,524. sible to do an adequatejob when you have I was being paid less than $10 hourly. an overburdened caseload, no access to Under those circumstances I felt that my With the county contribution of $10,000, experts, staff, or facilities and that you private practice was subsidizing the public Lee has a total of $25,524 to provide a can’tfindattorneys willingtohelpoutwith defender work. Yet I gave the public defense forindigents. Yet, the prosecution the burgeoning caseload, attorneys have defenderwork moreemphasis, because the receives $135,145. This figure is mis learned they can’t make any money doing stakes were higher. I finally decided that leading because it only represents the public defender work in Bourbon Co." wasnot fair to my privateclients, or to me, salaries of theBourbon Co. Comm. Atty., so I resigned my contract." Asst. Comm. Atty., and their 2 staff- a Harry said of Lee, "He does a very good detective and a secretary; the salaries of job given those limitations, but it’s unfair Nora McCormick the Bourbon County Atty., Asst. Co. to expect an attorney to work under those Assistant Attorney General Atty., and their secretary. It does not in conditions, when you’re facing the Com Director dude operating expenses, etc. which is monwealth which his such an incredible Consumer ProtectionDivision included in the public defender’s$25,524. fund of resources."

April 1990/ The Advocate 2 From The Editor: IN rfHIS ISSUE

Menial illness is a frequent and large ex planation for much of’our cxime, yet public defenders, criminal defense attorneys, FEATURES prosecutors, police, judges and corrections officers in the criminal justice system too often are ignorant of progressive mental health knowledge. THE TREATMENT OF PSYCHIATRIC DISORDERS 62 We need to educate and implement the GREENUP 2 insights of social workers, psychologists BOURBON CO. CONTRACT PD, LEE and psychiatrists into theexplanation for the behavior of criminal clients. We also 6TH CIRCUIT VACATES KORDENBROCK V. SCROGGY 4 must educate ourselves, thecourtsandcor rections on the many possibilities for treat ing mental disorders. JUDGE’S VIEW ON DPA ALTERNATIVE SENTENCING 5

This issue we continue to focus on explor STATE OF THE JUDICIARY ADDRESS 6 ing meaning for criminal behavior and the chances of that behavior changing in the NONSUPPORT STATUTE IS UNCONSTITUTIONAL 9 future. Dr. Weitzelreviews a monumental new work, Treatments ofPsychiatric Dis orders, and relates its importance to the BLACKS DISPROPORTIONATELY INVOLVED criminal justice system. IN CRIMINAL SYSTEM 11 We continue in this issue to explore the pernicious effectsof racism in thecriminal PUBLIC ADVOCACY COMMISSION 16 justice system. What can we do to make color irrelevant to crime? INTERVIEWS WITH DPA COMMISSION MEMBERS 18 As the Catholic Bishops have rightly ob served, "Racism is not merely one sin among many, it is a radical evil dividing thehuman family...." REGULAR COLUMNS

TheAdvocate is a bi-monthly publication ofthe Department ofPublicAdvocacy. en independent agency within the Public Protection and Regula West’s Review 20 tion Cabinet for administrative purposes. Opinions expressed in articles arc those of the Death Penalty: Ineffective Assistance of Counsel/Race 25 authors and do not necessarily represent tha In The Trenches: Guilty Until Proven Innocent 29 views of DPA. The Advocate welcomes cor Plain View 32 respondence cii subjects covered by it. If you have an article our readers will find of interest, Juvenile Law: The Child-Abuse Delinquency Connection35 type a short outline or general description and Evidence: Ky.’s New Evidence Code, Part 1 36 send it to the attention of the Editor. Ethics: The "Squeal Law" Law 40 Edward C. Monahan, Editor 1984-Present Erwin W. Lewis, Editor 1978-1983 Cris Brown, Managing Editor TRIAL TIPS Contributing Editors

Unds K. West Barbar. Ilohhau. West’. Review Juvenile Law Allison Connally Donna Boyce Post-Conviction 6th Ckcuil Highlights Nest Walker Emis Lewis Funds for Experts in Criminal Defense Cases, Part 3 , 41 Death Penalty Plain View Kentucky Literacy Commission 47 Dan Goyett. Rob RIisy Ethics In the Trenches Computers Uses in a Small Law Office ., 48 David Hiehaus Dave Norat Evidence Ask Correc4iorw The Kentucky Parole Board ,,.. 49 Justice Powell’s Habeas Reform 51 Civil Practitioners Doing Habeas: A Bad Mistake 53 Department of Public Advocacy Preparing .. 1264 Louisville Road Witnesses 55 Frarrktort, Kentucky 40601 No Gun Control 57 5026648006 FAXI 502 564-3949 Cases of Note 59 Printed with State Funds KRS 57.375 Conflict Resolution 58 Ask Corrections 60

April 19901The Advocate 3 KORDENBROCK V. SCROGGY, DECISION VACATED BY 6TH CIRCUIT PetitionforRehearing En Banc Granted

No. 89-5107 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ED On February 20, 1990, the 13 judgesof the Sixth Circuit Court of Appeals voted to FEB o 199 rehear Kordenbrock v. Scrogy, 889 F.2d LEONARD 69 6th Cir. November 3, 1989 en banc. PAUL KORDENBROCK, GREEN Clerk They also vacated the previous panel opinion inthe case. Petitioner-Appellant,

V ORDER

The case was restored to the docket, and a GENE SCROGGY, WARDEN, KENTUCKY supplemental briefing schedule was set by STATE PRISON, the clerk with oral argument to be lee scheduled as soonas practicable. Respondent-Appel

BEFORE: MERRITT, Chief Judge; KEITH, KENNEDY, MARTIN, JONES, Kordenbrockis thefirst death penalty case KRUPANSKY, WELLFORD, MILBURN, GUY, NELSON, RYAN, to be considered by the Sixth Circuit since BOGGS and NORRIS, Circuit Judges. Furman.

A majority of the Judges of this Court in regular active service have voted for Since 1985, the Sixth Circuit has granted en Sixth Circuit Rule 14 provides as follows: 20 en banc petitions for rehearing. Kor rehearing of this case banc. denbrock was the 21st since 1985 and the The effect of the granting of a hearing en banc shall be to vacate the previous second in 1990. In 1989 seven en banc opinion and judgment of this Court, to stay the mandate and to restore the case petitions forrehearing were granted. on the docket as a’ pending appeal. Accordingly, it is ORDERED that the previous decision and judgment of this Incredibly, both the Sixth Circuit panel Court is vacated, the mandate is stayed and this case is restored to the docket as a and the federal district court, Kor denbrock v. Scroggy, 680 F.Supp 867 pending appeal. E.D. Ky. 1988, denied relief even The Clerk will direct the parties to file supplemental briefs and will schedule though the jury was prevented from hear ing that Paul Kordenbrock was emotion this case for oral argument as soon as practicable. ally disturbed andmentally ill because the State of Kentucky boldly refused to pay the defense’s psychiatric witness as or ENTERED BY ORDER OF THE COURT dered by the state trial judge. The panel and the district judge both ruled that the indigent Paul Kordenbrock was not en IJftJJjI - titled to rebut the state medical doctor’s iieonaro tireen, ClerK testimony with a psychiatrist rather, the panel and district judge said rebuttal by the defense’s pharmacist would have to do. Even though every practicing lawyer in Is it any wonder that the petition for Kentuckyknows that in fact andinlaw the rehearing en banc was granted? Amazingly, the panel and the district jury, not the judge, fixes, not recom judge said that Paul Kordenbrock could mends, the sentence, the panel and the Kordenbrockoriginatedout ofBooneCo. Paul have used a state employed psychiatrist district judge held otherwise. The Ken isrepreseutedbyTimRiddellandEdMonahan. even though that psychiatrist was 1 not tucky Supreme Court rules and caselaw Board certified, 2 could not guarantee indicate that the jury fixes sentence. See confidentiality, and 3 would notassistthe RCr 9.84. defense in cross-examining the state’s doctor.

April 1990ffhe Advocate 4 PUBLIC ADVOCACY ALTERNATIVE SENTENCING PROJECT **PAASP Part of the Solution to Jail and Prison Overcrowding

Judge John T. Daughaday

Sentencinghas always been an integral partof laws affecting the term of imprisonment; laws judicial districts can avail themselves of this our criminaljustice process; however,in recent affecting eligibility for parole andprobation; sentencing alternative. years it has taken on a new and burdensome lack of adequate funding for probation; lack of context. Who among us, prosecutor, defense alternativesentencing options. Having spent the last 20 years in the legal counsel, or judge, has not been affected in our profession, including the past 12 years on the respective role by the overcrowded conditions These problems and others have been ad bench, I feel that I can make certain observa in our state’s jails and penal institutions? The dressedin a variety of ways, and some ofthese tions based on where we are coming from and demand for spacein these facilitiesand thelack measures should be considered, if Ky. is to where we should consider heading with regard thereofhas grown toincreasing dimensions and solve its problem of growing demand for jail totheovercrowding problem. l’his problemdid now impacts directly on the quality and quan and prison space. Among those that may be not arise overnight and will not be solved thy of thecriminal justice system. worthy of consideration for us: sentencing quickly; however, if we are to find a solution, guidelines; revision of penal statutes; increase we must charta course now and embarkupon Our system is still sttuggling with this issue, in number of probation officers; more funding thejourney with as much dispatch as possible. andfrom all apparentindicators, we have yetto for resource facilities; andalternative sentenc cometo termswith the manyfactors thatimpact ing. The Executive, Legislative, and Judicial onjail and prison overcrowding. Eachtime the branches of state government must make a legislature passes a law intended to stiffen the For thepast 2 years, Ky. has experimented with commitment to realistically address theprob penalty for certain tpes of criminal conduct, alternative sentencing under theauspices of the 1cm, identify theissues, and be willing toagree that law impacts directly on prison and jail Public Advocacy Alternative Sentencing on solutions across the board, if we areto gain populations. Project PAASP. Under this project, four any measure of success. We should take ad Public Advocacy trial offices, coveringanum vantage of the PAASP and the momentum it Statistics compiled by the state’s Correction bar of judicial districts, were each provided has generated and build upon and expand our Cabinet estimate that the passage of the 1986 with an alternative punishment worker. The efforts. truth-in-sentencinglaw, which increasesparole PAASP is a grant jointly funded by state and T. DAUGHADAY eligibility for certain violent offenses from a private funds. Statistics compiled by thePublic JUDGE JOHN minimumof20% of thesentencetoaminimum Advocate’s office show that 184 cases were 52nd Judicial District of50%, hascostthestate over$30 millionsince referred to PAASP, 115 alternative sentencing Graves Co. Courthouse its enactment. The persistent-felony offender plans were developed and presented to circuit P.O. Box 428 law enacted in 1974 accounted forless than 50 courts. Ofthose 115 plans, 54 were followedin Mayfield, Ky. 42066 inmates ten years ago; however, by late last whole orin part by the sentencing court 47%, 502 247-8726 year, that figure hadgrown to 1,850 inmates. andonly 1 of these alternative sentencingplans have beenrevoked 12%. Judge Dauhaday received his J.D. from Can Ky. cometo grips with this growingprob the University ofKentucky in 1970. Hewas lem that threatens to undermine our system? Myjudicial district, the52nd Graves Co., was Lexington CityAttomeyfrom 1970-71, and The question might be better stated as "what one of thedistricts covered, and local statistics was in private practice from 1971-77. He steps can Ky. take to come to grips with this fromtheareaofficein Paducah show thatatotal served as a District Judge for Graves Co. problem?" One approach is to build more of 18 caseswere referred to them for alternative 1978-1983. Hewas president of the Ky. prisons and jails, yet this approach fails to sentencing plans. Of that number, 7 plans were District Judge’s Association 1 980-83. He realistically consider thecost ofjail andprison prepared and submitted for consideration for was elected CircuitJudge and he’s served construction andthe cost to maintain prisoners. the Graves Circuit Court, with the Court ac in that capacity since 1984. That cost is estimated to be approximately cepting 5 of those plans and grantingprobation $50,000 per cell and $20,000 per year to main to the defendants and incorporating all or a tStatistics based on Kentucky Corrections tain each prisoner. portion of the alternative sentencing plan. Of Cabinet reports and an article by Todd Murphy, the S defendants probated by the Court, one staff writer, Louieville Courier-Journal, "Maxi mum Insecurity," January 7,8,9,1990. Experiences from other states, such as Min defendant’s probation has been invoked and nesota, indicate that the more contributing fac one motion for revocation is now pending. tors that can be identified and addressed, the **PftJSP chances These show quite clearly is a joint private and state-funded, better the state’s of coming to grips results that not only multiagencyeffortinvolving theDepartmentof with this problem in fiscaltermsthat arerealis does the sentencing judge have a viable alter tic in light of state and local government native at sentencing, but the statehas a power Public Advocacy, Developmental Disability Planning Council andthe PublicWelfare Foun revenues. Minnesota has approximately ful new weapon to utilize in the fight against dalion. The initial grantor was the Kentucky 500,000 more people than Ky., yet it has about overcrowding in jails and prisons. This 8,300.1 Developmental Disability Planning Council 3,000 inmates compared toKy.’s Many resource deserves to be funded for the next DDPC. For more information contact Dave contributing factors have been identified, biennium and to be expanded so that other Norat at 502 564-8006. among them:dispaiity in judicial sentencing;

April l99OtThe Advocate 5 STATE OF JUDICIARY ADDRESS TO THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF KENTUCKY MARCH 14, 1990

Governor Wilkinson, Lieutenant Gover who, by the enactment of the judicial ar nor Jones, President Pro Tenzpore Rose, ticlein 1975, brought Kentucky’s judicial Speaker Blandford, Senators,Membersof system out of the dark ages and into the House, Secretary of State Erhler, At leadership in this century. torney General Cowan, Fellow Justices andJudges, Circuit Court Clerks, Guests of the General Assembly, Mends, my Because I am Chief Justice, and because family and my fellow Kentuckians. my time is filled with the thy-by-day operationof thecourt system, I sometimes neglect to think about and recognize the Itis with a sense of duty and witha sense absolute truth of that second viewpoint. of pleasure that I appear before this joint Daily fatigue and frustration sometimes session of theKentucky General Assemb tend to diffuse the broad picture of any ly to deliver, as ChiefJustice, myconstitu situation. Perhaps it is a matter of being tionally mandated address of the state of to close to the trees to see the forest. It is the judiciary in this Commonwealth, my view, however, that, even with its problems, clearlyKentucky has the finest judicial system in the United States. Before proceeding with that task, I want Chief Justice Robert F. Stephens to pause - fora moment - to express to this GeneralAssembly andtoits predecessors, All of you know that, for the past 15-20 C on behalf of the nearly 2,300 employees of complaints, problems, brush fires, re years, we have been in a litigation ex of the Kentucky Court of Justice, our quests for jobs, requests for pay raises, plosion in this country, and in this Com deepest appreciation for your continuing requests for everything from pencils to monwealth. Our case load - at all levels concern, interest and support of computers, and a myriad of other ad of the court system - has been on the Kentucky’s judicial system. The mutual ministrative problems, one would oc increase. This increase is continuing and, respect andcooperation between the Ken casionally conclude that the Kentucky although the rate of increase has slowed tucky judicial branch of government and JudicialSystem seems to be bogged down considerably, the difficulty and com the Kentucky legislative branch of in a miasma of mistakes, confusion, plexity factor of the cases has increased, government is very rare in this country. delays and incompetence. I am sure these thus necessitating more and more study At a recent historic national meeting, feelings arenot unknown to the members time and thought by jurors as they reach sponsored by the National Conference of ofthe General Assembly, whoface similar their decisions. State Legislators, the Conference of Chief problems and frustrations on a daily basis. Justices, and the National Center forState Courts, to address the problem of legisla Because of the assistance the General As tive-judicial relations, Kentucky was On the other hand, ifone is a ChiefJustice, sembly has given us over the years, and repeatedly cited as an example of how or Court Administrator, of another state, because we have made many administra these two branches of government should or if one is a staffmember of the National tive changes, we havemanaged to handle, relate to each other, while still preserving Center for State Courts, or if one is a at least in part, that increasingly complex and respecting each other’s constitutional student of the judiciary, one views Ken case load. Our overall annual disposition duties and responsibilities. For your tucky as having the finest judicial system rate has increased and the overall length leadership in making this valued anduni in the United States, particularly with of time for disposition of cases has also que relationship possible, I salute you.. respect to its constitutional and statutory dropped every year. The bottom line is You certainly make myjob easier, more structure. That viewpoint would cite the that we are getting more work done and productive, and more rewarding, all of uniform, integrated system, with the we are getting it done more quickly. The which directly benefits those Kentucky Supreme Court acting as aBoardofDirec positive achievements have beenprimari citizens who are users of thejudicial sys tors, withthe Chief Justice as Chairman of ly due to the efforts of individual judges tem. the Board. That viewpoint would ac who, after recognizing the problem,have knowledge that the total finding of the made great personal efforts, and have ef courts by the General Assembly provides fectively used the technological and ad When one ponders the condition of a strong vehicle to solve the problems of ministrative devices withwhich we have Kentucky’s judiciary, one’s conclusion the business ofjudging, withregular input provided them. depends upon one’s perspective. For ex by the General Assembly. That viewpoint ample, if you are the Chief Justice of would give accolades to the General As We have addressed the problem of appel Kentucky, with a daily continuing stream sembly and to the people of Kentucky

April 1990/The Advocate 6 late delay by the use of video taping sys per square foot. Nearly 25% of the space terest earned on attorneys trust accounts tems which are now installed in 37 we provide is for storage of the incredible to be used in a statewide program, called courtrooms in the Commonwealth. amount ofpaperwork withwhich we have IOLTA, whose purpose is primarily to Today, transcripts of evidence are ready been inundated. Two years ago I made fund programs which provide legal ser immediately upon completion of the trial, mention to you of a "paperless court," I vices for the indigent Recently, over and six hours of testimony, which are can report to you today that - in Jefferson $200,000 in grants were made. This is a totally accurate and not subject to human County - the process has begun. Two just beginning. error is available to litigants for $15.00 so-called laser optical disc storage units while a normal transcript would cost have been installed and are working. $750-$ 1,000 and would take weeks or Each storage disc, about the size of an old One last point in this area. Because of months to complete. In long trials, the "78" record,holds 128,000 pages of legal the limited amount of funds - both state results are even more dramatic. sized paper. A whole years work can be and federal - available to provide legal literally kept in a small filing cabinet, service for thepoor, I will soon propose instead of 1200-1500 square feet of pre to the Supreme Court a rule which will Since Ihavelast talked with you, the Ford cious and expensive office space. A require each and every attorney to Foundation and the John F. Kennedy readily accessibleand simpleindex makes donate a regular amount of his or her School of Government, at Harvard, the individual pages available for inspec time for pro bono work. I believe this Is honored Kentucky video courts with one tion and printing. Kentucky again, has a small price for attorneys to pay for the of its $100,000 innovation awards forex achieved a first. We would like to con privilege of practicing law in this great cellence in state and local government. tinue withrefining of this technology and Commonwealth. More than 1,000 applicants for those broadening its use. awards are received each year. Moreover, Kentucky’slead in the useof video taping As I indicated earlier, much has been of trials is being followed by 12-15 states, We are planning a statewide system touse done, but much, much more remains to be and the federal government While other modernfacsimile machines. This system, done, so that the Kentuckyjudicial system recordationsystems arefloundering in the under special rules of procedure, will lives up to those great purposes for which past, our video system has thrust Ken serve litigants and attorneys well by being it was enacted. I can assure you and the tucky into the 21st century. Our video available to all circuit clerks offices. No people of the Commonwealth that each system is the wave of the future. The longer will litigants and attorneys suffer and every member of the Kentucky taxpayers and the litigants who pay the the óxpense and stress of meeting proce Supreme Court is dedicated to seeing that freightin thejudicial system arethe direct dural deadlines by oftenunreliable mailor such goal is reached. beneficiariesof this system. Our commit even personal delivery. ment to further expand and improve the systemis a firm one. I will not dwell on the court of justice I take pleasure in reporting to the people budget. Suffice it to say that I am keenly of this Commonwealth that the Kentucky aware of the many monumental tasks In 1986, the General Assembly passed a Supreme Court, with the help many before you this session. Our budget, far reaching bill which mandated that the people, has adopted a new andmore strin which is somewhat less than 2.2% of the Court of Justice develop a system to keep gent codeof professional ethics. In order Governor’s proposed budget, is small, in broad-based statistical data of the ac to further sensitize attorneys as to their comparison to other demands placed on tivities of the Kentucky courts. Although ethical standards, we have passed a rule you this session. Needless to say, how no fmancial appropriation was made in which requires all law students to pass a ever, it iscritical to the continuingsuccess that act, we have responded by developing national examination on ethics before of the court system, and to the solving of a local-state computer information system they are eligible to even take the bar ex present and future problems, that you give which will comply with the mandate. We amination. We have strengthened our it every possible consideration. We have have pilot projects - installed and mandatory continuing legal education for appeared before both Appropriation and functioning - in 4 counties - Johnson, judges and lawyers. Along with the Ken RevenueCommittees and have answered Clark, Wanen and Kenton. We are now tucky Bar Association, we have estab questions. As all of you know, I am al ready to proceed, full bore, with the im lished a blue ribbon commission to study, ways available - at your pleasure - to plementation of the statewide system and identify and eliminate gender bias in the answer any questions you might have or meet the mandate ofthe General Assemb legal profession and in the courts of this to consider any suggestion you might ly. In our budget for 1990-1992 we have Commonwealth. The President of the make. The budget document provided to sought funds for installation of the com KBA and myself, are In the process of you represents a realistic evaluation of the puters - called sustain - in 36 counties. In establishing a similar blue ribbon com needs of the Court of Justice for the next the foreseeable future, the information mission to search out and eliminate ra two years. Your favorable consideration mandated by the General Assembly will cial bias in our judicial system. The will be greatly appreciated. be available. This system will attack court Kentucky Bar Association is in the delay by allowing judges to manage their process of reviewing, with the assistance dockets and will bring more "sunshine" of the ABA, the entire process of lawyer So much for yesterday and today. What into the court system. discipline. about tomorrow? What about the decade of the 1990’s. With your indulgence, I would like to spend a few minutes more Sincethe implementation ofthe new judi One of the great weaknesses of the legal of your precious time, and take out my cial article, in 1976-1978 - the AOC has system in the country, andin Kentucky, is somewhat dusty crystal ball. I would like been responsible for providing all court thefailure of too many lawyers to involve to respectfully suggest some items which house space. Since 1976, with your ap themselves in the lives and needs of their I.believe are deserving of your attention, propriations, we have assisted local community. Too many ofus have forgot as we enter the last decade of this century governments inbuildingor remodeling40 ten the traditional and historical role of courthouses. We have, in that process, lawyers. As a beginning, we had passed seen the cost of construction rise to $100 a voluntary rule which authorizes the in- To begin with, I hope that in the next two years you will give some thought to the

April 1990/ The Advocate 7 process of selecting judges in the Com the two men get the same compensation. prosecutors of the Commonwealth, monwealth. There is no doubt in my mind The situation is the same in the district should begin a study of this problem. that our presentmethod of electing judges courts. I must tell you that re-circuiting is one whose time is coming to an end. 35 and re-districting is the only answer. states and the District of Columbia have When the circuits and districts were Ancillary to the last suggestion, Is the adopted some form of retention election. created, in 1976 and 1978, there was much need for more full time public As the big monied, special interests turn "guesstimating" in creating them. Since defenders and a generous increase In their attention, and their money, to the then, populations have shifted and the the compensation of these dedicated electionofjudges, thequality ofobjective, resulting changes in case loads have ex and hard working men and women. non-politicaljustice will diminish. I sub acerbated the problem. Re-districting and While theirs is not a "popular cause," mit that SB 308 is a good example of what re-circuiting are a massive and politically the Department of Public Advocacy can and should be done. This bill, will, in risky task. This is particularly true when truly serves as a champion and sentinel my opinion, cure the only major flaw in one considers that re-circuiting also af of our most cherished legal principle. our judicial article. fects Commonwealth Attorneys. I sug innocent until proven guilty. Theirs is gest to you that the General Assembly and an invaluable dedication to public ser the Supreme Court create a long range vice without which many would be A continuing problem is the compensa planning committee to work on this prob denied access to justice. tion of judges. We must continue to at lem. tract and keep quality men and women on the bench. In the past year, we have lost One of the great criticisms that thejudicial 4 circuit judges in our system who were In the past year, I havehad the occasion to system sustains is the fact that judges do attracted by the much greater compensa review the work of thenew Workers Com their work in the same local areas where tion offered by private finns. Financial pensation Board and the new Administra they are selected - by whatever method. sacrifice will always be a part of public tive Law Judges. In my opinion, the con Prejudice or at least the appearance of service, but we must be sure that judicial cept and the work product, have beensu prejudice, and favoritism, are thought to salaries will keep pace sothat the allure of perior. I suggest to you that the General be present. The people demand and the private sector does not become over Assembly should consider the creation of deserve judges who have no friends, who wheitning. I would suggest to you that a a whole layer of Administrative Law have no bias, and who have no political committee on judicial compensation be Judges to deal with the growing legal is favors to repay. Iknow this is an idealistic established by this body, and that its task sues in the area of administrative law. It dream, but it is one which canbe achieved. be to evaluate judicial compensation, on a seems to me that the results achieved in For exampled, in North Carolina, trial continuing basis. the workers compensation area could be judgesdo notsit in the same districts from duplicated in the Public Service Commis which they are elected. It works. I would sion, the Department of Transportation, like to suggest that the General Assembly In our circuitcourts, over 53% of the civil Cabinet for Human Resources, and all and the Supreme Court, together, study dockets are domestic relations cases. other state agencies. There is available to this as a possibility as we enter the 1990’s. Those cases are, normally, highly emo you a wealthy of research done by the tionally charged, and seem to last forever. American Law Institute in their proposed The impact of divorces on society, in model administrative code. I suggest that There are many other areas in which I believe improvements in the legal system general, and on the affected children, in such a code - tailored to Kentucky’s needs could be made. I am sure you have many particular, can be devastating. To be can - would be a measurable improvement did with you, I’m not sure that any court over the present system. ideas of your own. Ihope you will con system is doing a satisfactory job. I can sider these suggestions in the spirit in tell you that there is a school of thought which they have been given - withrespect developing, albeit slowly, in this country, From 1976 through 1979, I was Attorney that recommends that many of the tradi General of the Commonwealth. During tional functions ofcourts in divorce cases that time, we developed the so-called As Senator Rose said to you in his speech should be removed from the courts and unified prosecutorial system. Since 1979, on the stateof legislative branch,separate assigned to professionals who are better I have been on the bench and my ex ly we can’t achieve anything, but together qualified to solve those problems. Ido not perience and interest in the criminal jus we can accomplish anything. Our state necessarily agree withthose views, but, I ticesystem has notlessened. Ifought long motto-"United westand, divided wefall" believe you should join with the court and hard, in the late 1970’s, to retain the - further reminds us ofthe mutual benefits system and, at least, consider them. system of County Attorneys and Com of our continued partnership. monwealth Attorneys, most of whom are part time. I nowbelieve that my advocacy This general assembly is well aware of the was misplaced. Effective prosecution at a Thank you for your support in the past, at problem of the disparity of the case load local level, and at an appellate level, I present, and in the future. in the district courts and circuit courts of believe would be better served and the state. In response to the problem, achieved by the concept of one full time Reprinted with permission of Justice several years ago I created a system of local prosecutor who would "handle" the Stephens. Emphasis Added regional judges, the main purpose of cases in the district courts and in thecircuit which wasto assign casesfrom the judges courts. Policies would be unifonn and who had an excessive case load to those much waste, duplication and inefficiency judges who did not I can report to you would be eliminated and professionalism that while those efforts met with modest would be increased. The limited resour success, the problem still exists. For ex ces available to prosecutors would be bet ample, in Letcher County, the circuit ter used. I know this is controversial, but judge has 421 cases per year, while in I believe it is an idea whose timehas come. Pulaski and Rockcastle counties, the cir I suggest to you that the General Assemb cuit judge has 1,334 cases per year. Yet, ly, the Attorney General, and the

April l990lTheAdvocate 8 KY’S NON-SUPPORT STATUTE RULED UNCONSTITUTIONAL

On Februas’y 23, 1990 Kenton District tons 18 and 51. The defendant argues that designed by the General Assembly to enforce Judge Schmaedecke ru/ed Kentucky’s under Ky. Constitution Sec.l8it is unconstitu the collections of child support debt by use of criminal non-support statute unconstitu tional to imprison an accused for debt. He ar thecriminal sanctionofimprisonment. Neither tional. David R. Steele represented the gues that KRS 530.050lb does precisely guilty knowledge nor guilty purpose nor fraud defendant in the action. The opinion and that. is constituent part of the elements of proof to views of DavidA. Steele follow: obtainaconvictionunder the offending statute. The defendant also bases his argument of un Further, while the intent of the General As constitutionality of KRS 530.050lb on Ky. sembly in the enforcement of Child Support COMMONWEALTH OF KY obligations is a noble one, such noble intent V. Constitution Sec. 51 which requires that enact ments of the General Assembly conform to the should not abolish the historical common law STEPHEN MILLS title of the enactment and statutory required elements of criminal conduct. This prosecutioncommenced on a felony com When KRS 530.0501b was enacted in 1988 plaint of flagrant non-support Preliminary the title to the enactmentread "An Act relating The statutory enactment of K.R.S. hearingwas held andthe matter wasreferred to to child support recovery and declaring an 530.0501B is directly at odds with the the grand juiy of Kenton Co. The Common emergency." He argues that the language of statutory language of the preexisting ICR.S. wealth returned an information for mis KRS 530.0501b in no way relates to child 501 .0301 which specifically provides that "a demeanor nonsupport under KRS 530.050 but support recovery nor any emergency declared personis not guilty ofacriminaloffenseunless: without specification about the subsection of relating to child support recovery. The argu he has engaged in conduct which includes a KRS 530.0301 that applied to the facts of the ments of the Commonwealthare set forth in its voluntary act or the omission to perform aduty case. On the date the information was returned memorandum filed Feb. 16,1990. which thelaw imposesupon him and which he in open court, the defendantwas arraigned and is physically capable of performing emphasis entered a plea of not guilty. The court set the added. matter for trial by the court on Dec. 19, 1989. The language ofKRS 530.050lb appears to be plain and without ambiguity. There is no language in the text of KRS 530.0501b While this Court is mindful the law generally Ajury demand was filed before Dec. 19, 1989 whichis commonly associatedwith criminality favors the presumption of Constitutionality of and by local rulethe previously scheduledtrial of an accused. The statute requires no mens Ky. Statutes and furtheris mindful that District became a discovery andpretrialconference. At rca, no proof of scienter norany other state of Court is not theforum for general construction the discovery-/pretrial conference the matter mind nor fraudulent intent attributable to the of statutes, that forum is the Ky. Court of was set for trial in March 1990 and the Com accused. The language creates no elements of Appeals, and accordingly is very reluctantto monwealth, by its AssL Kenton Co. Atty., the factual proof which give rise to anyrebuttable pass Judgment contrary to the presumption of Hon. John Meier, elected toprosecute thecause presumption. Constitutionality of Ky. Statutes, it is the under KRS 530.050lb. opinion of this Court that the statute in question is so blatantly unconstitutional,that to delay the Thelanguage of KRS 530.050lb speaksout entry of such a finding at this time would be to The defendant filed his motion to declareKRS of obligation created by judgment for payment 530.050lb unconstitutional. The motion, deny this defendant his substantive and con of child support. Enforceable debts of stitutional rights. with memorandum, was filed and originally numerous varietyare often theresult ofajudg noticed for hearingon Jan. 30,1990. TheCom ment. monwealth requested and received additional The Opinion of this Court does not affect the time to respond to the Motion and memoran constitutionality of K.R.S. 530.050-1a, the dum. The court set the matter for hearing on The statuterefers to the accused as a "defendant preexisting criminal offense of criminal non Feb. 20, 1990 and the court at the Jan. 30 obligor." The term "delinquent" is, with only support The Court believes that K.R.S. 530.- appearance asked the defendant’s attorney to one exception known to the court, applied in 0501b clearly violates theprohibition con serve noticeon theAny. Gen. of Ky. The record cases of debt and not to criminality of an in tained in Sec. 18 of the Ky. Constitution. Since of the pleadings reflects that the defendantac dividual. The term "delinquent" is defined as the court has reached the decision of uncon complished notice on the Any. Gen .on Feb. 1, "... due and unpaid at thetime appointed by law stitutionality based on Sec. 18 of the Constitu 1990 by serving upon himacopy of the motion or fixed by contract ..." - Black’sLaw Diction tion of Ky. it is not necessary to consider the I memorandum. The Commonwealth filed its a,y Rev. 4th Ed. West 1968. In the text of issues raised by the defendant regarding Sec. memorandum onFeb. 16,1990. The Atty. Gen. KRS 530.050lb the term "delinquent" is 51 of the Constitution of Ky. of Ky. has not entered his appearance in this used as an adjective modifying the words case nor tendered a memorandum in support of "defendant obliger". The statute itselffurther the Commonwealth’s position. delineates thedefinition of"delinquent" in that it states that such conductis denoted when the JUDGMENT "defendant obligor" is: NOW THEREFORE, IT IS HEREBY On Feb. 20, 1990 the motion by the defendant ORDERED, ADJUDGED AND to have KRS 530.0501b declared uncon "... [latel in meetingthe full obligation stitutional was heard by the court. Present for established by such order andhas been DECREED: theCommonwealth was the Hon. John Meier, so delinquent for a period of two 2 1. K.R.S. 530.05010, is determined to be Asst. Kenton Co. Attorney. The defendant was months duration." unconstitutional in violation of Section 18 of represented by the Hon. David R. Steele. No the Kentucky Constitution; and - KRS 530.0501b appearance was entered for the ALly. Gen. The language of KRS 530.050lb appears to authorize the imposition ofimprisonmentsanc 2. The criminal offense charged in the informna The Commonwealthagain reassertedits inten tions if the accused has two months ton herein, which the Commonwealth has tion to proceed under KRS 530.050lb in for not based on K.R.S. 530.-0501b, is dismissed dicating that the proof would consist of the necessarily consecutive paid an amount less withprejudice. payment record of the Kenton Co. Domestic than the full amount set out in the judgment which made the defendant an obliger. Relations Clerk which demonstrated lack of At Covington, Kentucky, this 23rd day of compliance by the accused with a judgment February, 1990. entered regarding child support The General Assembly entitled theenactment which brought into existence KRS WILLIAM L. SCHMAEDECKE The Motion to Declare KRS 530.0501b Un 530.0501b as "An Actrelating to child sup Judge port recovery and declaring an emergency". Kenton District Court 3rd Division constitutional relies on Ky. Constitution Sac- Therefore KRS 530.050lb appears to be

April 1990/The Advocate 9 wealththrough the CHR on the relation of support is disregarded in the rush tojudg VIEWS OF the IV-D recipient lodges a criminal non ment. STEELE support complaint alleging non-payment. DAVID R. 4. The non-custodial parent-client is In Kenton Co. even beforethe adoption of charged with the misdemeanor crime or the stricken statute in 1988 the criminal felony, if flagrant of non-support, there misdemeanor non-support statute had be usually beingno enquiry at this point about come the Commonwealth’s tool of choice The portion of the misdemeanor non-sup whether the obliger parent has the ability in the enforcement offederalW-D obliga port law KRS 530.05010, that the to pay. 5. The obligor appears in court and tions. With few exceptions the resultis the Kenton District Judge ruled to be uncon is arraignedforacrime. Whereheis unable poor areputting the poor in jaiL The non- stitutional was likely enacted as the result to pay support because he lacks the ability custodial parent-client now hasa criminal ofpressureon the Ky. Gen. Assembly from to pay he likely qualifies for a public record which creates additional hurdles to organized special interest organizations defender. 6. Often times his attorney ad the non-custodial parent-client seeking whoin theirzeal tolegitimately collectpast vises the non-custodial parent-client that employment so that support in anyamount due child support desire to use a criminal the offer of the Commonwealth in a plea can be paid. remedy to collect a debt by use of extor negotiation is that in exchange for a guilty tionary tactics. It is an ethical maxim that plea thedefendant will receiveasix month The remedyfor this is for courts to enforce no lawyer may use threat of criminal sentence with probation conditioned on their civil judgments establishing these prosecution in furtheranceof the collection timely payment of child support for the legal obligations. There are examples of of a debtor lawful obligation. Such tactics next two years the longest probation knowing and intended nonpayment of are deemedextortionate. The stricken per- authorized fora misdemeanor. The client, child support whicharecriminalin nature. ton of the non-support statute is no dif possibly afraid of the outcome before the The criminal law may be the appropriate ferent. judge or the uncertainty of the outcome way to handle that matter but it should be beforethe jury, seeing a resultthat for the remembered that the penal code is The offending statute provides no defense immediate future keeps him from jail is designed to punish and not extort. The for non-payment. The nonpaying obligor easily persuaded by his attorney to go criminal law should not be the firsttool the who has not paid for any two months is along with the worked out plea. Where Commonwealth lays hold of to enforce guilty and there is no factual defense that that same person is not represented by civil support obligations. Ifthe Common can be raised. So if the defendant had a counsel because he may not qualify for a wealthinsists on using the criminal law to good reason, itis of no avail to him/her. As public defender he views this plea process satisfy debtobligationsasits tool ofchoice, far as KRS 530.05010, there is no as an easy way out of an expensivepredica defense attorneys should advise their defense to nonpayment Notlossofjob, not ment that he can ill afford to endure for clients that jury trials are a curb to such work related injury where the employer long. 7. Judgment is entered according to abuse. contests liability,notdisability or anyother the plea agreement At this time and in numerous good reasons provides a many cases the courts condition probation Because of the political volatility of the defense. on the payment of a certain amount, now issues surrounding collection of past due calculated with reference to the "federally child support and the fact thatjudges must While there is a legitimate need for non- mandated" I hate those words support run for election in Kentucky you may not custodial parents to pay support for their guidelines. But in a criminal court the getajudgewhowill exercise independence minor or handicapped children, civil safeguards inherent in the determination as of thought remedies are available and effective. it relates toinability to pay as well as taking Parents under a duty by court order arising of proof as to other sources for support for As I have represented clients in numerous from a civil proceeding who have the thechild are not present In short the court courtsIhavehadseveral judges tellme that ability to paycan be heldin civil contempt only applies guidelines to the accused’s the public will not accept particular posi of court for this refusal to pay and suffer half of the question without necessarily tional have advocated despite the fact that similarjailpenaltiesandotherpenalties not considering the custodial parent’s resour theargument was well within the law and available in a criminal court Courts using ces nor providing for adequate discovery authorized by the statutes. The judge pos their civil and equity jurisdiction can of other resources. sesses much discretion and may honestly fashion a remedy to meet the particular feel that good judgment requires him to needs of theparties in a support matter. In You mayalso have a districtcourt attempt rule against my client. That I can accept a criminal action the court is often unable ing to replace or supercede an otherwise But as a representative of your client you to fashion a complete remedy since often valid circuit court judgment as to the ap must recognize that he is also telling you the non-payment of child support is the propriate amount of child support. Now that if your client is travelling against the result of the complainant’s violation of a two courtshave inconsistentorders regard current ofpublic opinion, as thejudge per court’s visitation order or some other ing the client’s liability and both claim ceives it, thenwhile heir on thebench your relevant orderover which it hasno controL jurisdiction. client loses even if the position is meritorious. My response to that is to go The Cabinetfor Human Resources CHR A few short weeks later a payment is get the opinion straight from the horse’s together with local county attorneys and missed. The client’s probation is often mouth. Have thecourt swearin ajury and private attorneys who take advantage of easily revoked for violation of the condi try it to that very public the court says it this process too misuse the criminal tions of probation because the question no knows so well. My experience is that the process to enforce delinquent child sup longer is "could you make the payment?" public is not nearly as severe as the judges port. Private attorneys contribute to abuse but rather becomes "did you make the pay believeandespeciallyso when itcomes to this process because they use it to gain ment?" This is a subtle but important dis misdemeanor sentencing. advantage in a collateral civil proceeding tinction tothe client His immediateliberty as partof their domestic practice. is at stake. There is an irony to be pointed Kenton County has soughtreview ofJudge out about this process. It is that every day Schmaedecke’s ruling in Commonwealth The process sometimes goes as follows in this Commonwealth our courts accept v. MilLr. The defense has cross-appealled with steps eliminated depending on where pleas from defendants from the crime of based on Section 51 of the Kentucky Con the matter starts: 1. A non-custodial parent nonsupport after the court has already stitution. in a paternity, custody or dissolution diligently inquired and found that the proceeding is placed under acivil duty to defendant is unable for lack of funds to DAVID R. STEELE provide a determined amount of child sup retain counsel and therefore has been ap Osborne, Hillmann & Trusty port. 2. For some reason be it a number of pointed a public defender. Evidence is #121, FIfth Street Center factors the non-custodial parent is unable clear of the client’s inability to pay for 525 W. 5th Street to pay the determined amount 3. If the essential legal services but this essential Covington, KY 41011 custodial parent is onAFDC theCommon- element of proof negating criminal non- 606 261-5000

April 1990/The Advocate 10 OF YOUNG BLACK MALES UNDER23%CORRECTIONAL CONTROL More Young Black Males Under Correctional Control in the U.S. Than in College

Overview TABLE 1 For close to two decades, the criminal justice system in the United States has 1989 CRIMINAL JUSTICE Cowwoi RATES beenundergoing a tremendousexpansion. Beginning in 1973, the number of prisoners, criminal justice personnel, and taxpayer dollars spent has increased Criminal dramatically, with new record highs now PopulatiOn Justice Group State Federal Control being reached each year. Between 1973 20. 29 PrIsons Jails Prisons Probation Parole TOTAL Rote and 1988, the number of felons instate and federal prisons al1nost tripled from 204,000 to 603,000. By 1989, the total Mis inmate population in nation’s priso9 our White 138,111 94,616 15,203 697,567 6.2% andj ails had passed the one million mark. 109,011 1,054,508 Black 138,706 66,188 7,358 305,306 92,132 609,690 23.0% Record numbers of also persons are being Hispanic 36,302 24,357 6,155 134,772 36,669 238,255 10.4% placed under probation or parole super These vision.3 aspects ofthe crimninaijus TOTAL 1,902,453 8.4°! tice system are sometimes overlooked when the problems of prison and jail populations and overcrowding are ex plored. Fn.*.irs

White 6,320 7,099 944 141,174 8,712 164,249 1.0% The extended reach of thecriminal justice system has been far from uniform in its Black 6,072 6,095 665 58,597 6,988 78,417 2.7% effects upon different segments of the population. Although the number of Hispanic 1,509 2,036 488 29,850 3,210 37,093 1.8% women prisoners has increased in recent years at a more rapid pace than men, the TOTAL 279,759 1.3°! criminal justice system as a whole still remains overwhelmingly male - ap proximately 87%. And, as has been true historically, but even more so now, the criminaljustice systemdisproportionately Impact of the Criminal more crimes or different types of crimes engages in minorities and the poor.4 Justice System than other groups, or whether they are merely treated more harshly for their This report looks at the impact of the crimes by the criminal justice system Instead, this report looks at the end result criminal justice system as a whole on the American Correctional Assoc. of that large-scale involvement in the new generation of adults - those people criminal justice system, in the 20-29 age group. In particular, it andhighlights the The grim figures in the study "are over implications this raises for crime control whelming to us," said Tony Travisono, examines the devastating impact that the policies. executive directorofthe American Correc criminal justice system has had on the tional Association, which represents lives of young Blackmen andBlack com munities. 24,000 corrections professionals. Using data from the Bureau of Justice Travisono traces the problem through "at Statistics and the Bureau of the Census, least thelast 30 years during which inner- we have calculated the rates at which dif city youngsters who are denied oppor This report does not attempt to explain ferent segments of the age group tunities for decent educations andjobs just whether or why Blacks are dispropor 20-29 come under the control of the criminal fell into the criminaljustice system" tionately involved in the criminal justice system. Other studies have attempted to justice system. The analysis looks at the document whether Black males commit total number of persons in state and

April1990/The Advocate 11 federal prisons, jails, probation, and Implications for Social Policy 4. Implications for the "war on parole, and compares rates of crimina’ drugs" justicecontrol byrace, sex, andethnicity. The findings of this study, particularly Because of the unavailability of complete National drug policy director William data in some categories of theanalysis, those pertaining to young Black men, Bennett’s drug strategy similarly emphasizes a the should total rates of control should not be con be disturbing to all Americans. law enforcement approach to a social problem. sidered exact calculations, but rather, Whatever the causes of crime - be they This approach is likely to resultin even higher individual or societal - we now have a rates ofincarceration close approximations of the numbers of for Blacks andHispanics situation where 1 in 4 Black men of the since drug law enforcement is largely targeted persons in the system. As described in new adult generation against "crack," more often used by low-in "Methodology," in all cases where data is under the control of the criminal justice system. comeBlacks and Hispanics. As drug offenders were lacking, conservative assumptions make up an increasing share of the prison were used in making calculations. Suffi population, the non-white prison population cient data were not available to analyze The implications of this analysis for social will become disproportionately larger. In Florida, for example, Blacks inmates now criminal justice control rates for Native policy both within and outside the Americans or Asian Americans. make up 73.3 percent of all drug offenders, criminal justice system are far-reaching: compared to 53.6 ercent ofprison admissions for other offenses. Our findings areas follows: 1. Impact on the life prospects for Black males The Bennettproposal tolock up more offenders ‘Almost in Black men is hardly a novel one. For more than twenty 1 423 in the age The repercussions group 20-29 is either in prison, jail, or of these high rates of years, politicians have campaigned on this probation, or parole on anygiven day. criminaljustice control upon young Black men basic platform. A continued emphasis on law are greater than their immediate loss of enforcement at the expense of prevention and ‘For whitemenin the age group 20-29, one freedom. Few would claim that today’s over treatmenthaslittle hope ofachievinglong-tenn in 16 6.2% is under the control of the crowded corrections systems do much to assist results. criminaljustice system. offenders inbecoming productive citizens after release. Despite the ideal that offenders can 5. Strategies for more effective ‘Hispanic rates fall between "pay their debt to society," the fact is that most criminal justice policies and male these carrythestigma ofbeing ex-offenders for some two groups, with I in 1010.4% within the time to programs criminaljustice system on anygiven day. come. Thus, given these escalating rates of control, we risk the possibility of writ ing off an entire generation of Black men from Whilethe reasons why Blackmen enterintothe *Although the number of women in the having theopportunity to lead productive lives criminaljustice system are complex and need criminaljustice systemis much lower than in our society. tobe addressed with long-term vision, thereare formen, theracialdisproportions areparal immediate opportunities for change through teL For women in their twenties, relative 2. Impact on the Black community the criminal justice system. Thegoals of such rates of criminaljustice control am: changes should be to reduce the harm caused For the Black community in general,, nearly by the system and to reduce the likelihood of to Black women - one in 37 2.7% White one-fourth of its young men are under the con offenders returning thesystem. Theoutlines women- onein 1001% Hispanicwomen trol of the criminal justice system at a time of such a strategy axe as follows: - one in 56 1.8% when their peers are beginning families, learn ing constructivelife skills, andstarting careers. ‘Divertas many youthful, minorand first-time *The number of young Black men under The consequences of this situation for family offenders as possible from the criminaljustice the control of the criminal justice system and community stability will be increasingly system entirely. Diversion programs, dispute - 609,690 - is greater than the total debilitating. Unless thecriminaljustice system resolution processes, counseling and other number of Black men of all ages enrolled can be used to assist more young Black males more satisfactory means for modifying offen in college - 436,000 as of 1986. For in pursuing theseobjectives,any potential posi sive behavior could be used more frequently white males, the comparable figures are tive contributions they can make to the com than they are now. 4,600,000 total in higher education and munity will be delayed, or lost forever. *Reverse the trend to "criminalize"social 1,054,508 ages 20-29 in the criminal jus undesirable acts increase criminal tice system. ly and to A particularly ominous trend further em penalties as a means of controlling public phasizes this point. At the same time that an behavior. Mandatory and lengthy prison ‘Direct criminal justice control costs for increasing proportion of Black males ages 20- terms add to correctional populations, but these 609,690 Blackmen are$2.5 billion a 29 have comeunder thecontrol of the criminal do little to reducecsime. year. justice system, Black male college enrollment fell by 7% in the decade from I976-86. The ‘Jail andprison should be sanctions oflast ‘Although crime rates increased by only cumulative effectof theseseparate measures is resort for offenders who cannotbe diverted 2% in the period 1979-88, the number of that fewer Black males are being prepared to from the system. A range of community- prison inmates doubled during that time. assume leadership roles in their community. based sentencing options exist which are less costly and more effective than incar These fmdings actually understate the im 3. Failure of the "get tough" ap pact of present policies upon Blackmales proach to crime control ages 20-29. This is because the analysis In manyrespects, the pastdecade can be viewed presented here covers criminal justice as an "experiment’ in the "get touch" approach National Urban League control ratesfora single day in mid-1989. to crime. Proponents of this policy contend that Since all components of the criminal jus cracking down on crime through increasedar Billy Tidwell, research directorof the tice systemadmit andreleasepersons each rests, prosecutions, andlengthy sentences will NationalUrban League, said thestudy day, though, the total number of persons have a deterrent effect on potential underscoredthe league’s "longstand processed through the system in a given lawbreakers. Yet even with a tripling of the ing concern about thecondition of the year is substantially higherthan the single prison population since 1973, at tremendous African-American male. Once again, day counts. For this reason, the proportion financial cost, victimization rates since that we are reminded that large segments time have declined less than 5 percent of young Black men processed by the of the African-American population criminaljustice system over the course of lack opportunity to participate effec a yearwould be even higher than 1 in 4. tivelyin society’s mainstream."

April 199011’he Advocate 12 ceration. More could be made available through legislativeappropriations. These TABLE 2 include: MALE PAsucipAnopi IN CRIMINM. Jusrct - restitution to victims AND HIGHER EDUCATiON - community service - intensive probation supervision - treatmentprograms - employment andeducation Number - community corrections programs in millions

‘Utilize thesentencing process - the one point in system when there is the oppor 4 tunity to craft ameaningful response to the needs of victims, offenders, and the com munity - to counteract the trend toward increasing criminal justice control over Black males. This can be accomplished by 3 individualjudges adopting constructiveal ternatives and by developing true rehabilitative programs designed to reversecurrent correctional priorities. 6. The need for a broad approach to 2 crime and crime control

The problem of cries is one that can not be solved entirely by the criminaljustice system. Even with the most resourceful police, prosecutors, judges, and corrections officials, the criminal justice system is designed to be only a reactive system, not one ofprevention.

At thesame time that the nation has engagedin a criminaljustice control strategy overthe past decade, funding to address the conditions that contribute to crime has declined. While the criminal justice system has processed young Black men ages 16-24 remains at 24%. Ad BLACKS WHITES ding thenumbers of persons discouraged from or not "officially" in the labor market would resultinasigniflcantlyhiherflgure. Itis time nowto"experiment"in cnmecontrolbyattack immediate actions whichcan be taken to population by age, sex, andrace was available ing those social factors that many believepro prevent the next generation of Black forstateprison inmates 1986 andjail inmates vide a more direct link to crime, such as un 1983. Dataon sex andrace, but not age,were employment, poverty, andsubstance abuse. males form further swelling the ranks of correctional populations. available for federal prisoners, probationers, and parolees all 1986. Data for the age dis Conclusion tribution for state prisoners and jail inmates Some of these steps involve a change in were used to develop a ratio of the proportion The problem of crime is a complex one priorities and emphasis within the ofeach group ofprisoners i.e. male andfemale and will notbe resolved overnight. Rather whites, Blacks, and His,anics in the 20-29 age criminal justice system. Programs and group. These proportions were as follows: than viewing the solution as hopeless or policies exist in jurisdictions around the White Males - 49.6%; Black Males - 52.4%; too long-term, though, there are real and country which offer modes of more con Hispanic Males - 51.6%; White Females - structive resolution of criminal justice 52.7%; Black Females - 52.8%; Hispanic problems. Females - 60.0%. Rep. Conyers This ratio was then used to develop estimates Addressing the conditions which lead to by age for federalprisoners, probationers, and Rep. John Conyers, D-Mich., a leader of crime in the first place is a broad agenda parolees. Whileparoleesand federalprisoners the Congressional Black Caucus and a whichrequires serious thought, attention, are probably older on average than the state member of the House Judiciary and action. The decisions made today, prison population, probations are probably Committee’s criminaljustice subcommit though, in the areas of policy, programs, younger. The greater number of probationers tee, said the report "finally gives some and funding, will determine whether the would therefore make the overall estimate of substance to the crimes of genocide of the 20-29 age group aconservative one. While young black males." criminal justice system exerts as much control over the next generation of Black some margin of error is inevitable in these estimates, it seemsreasonable to assume that it Conyers said the study challenged "the in males as it does forthe current generation. is not of a substantial nature. creasing severity of punishment as the main strategy in the criminal justice sys Methodology Rates of criminal justice control were then tem. It won’t work. What we need instead developed all arealternatives toincarceration, drugtreat for parts of the system for 1986 ment, and to go in-depth into education, The dataon which these calculations are made except for 1983 figures for jail. These figures aretaken from reportsof the Bureauof Justice were then extrapolated to June 1989, based on employment, housing and health - that Statistics of the Department of Justice, the thepercentage increasefor each component of quadrangle of social concerns which Bureau of the Census, andthe Department of the system. The most recent overall population spawn the crime and violence." Education. A breakdown of the incarcerated figures available were: state and federal

April 1990/The Advocate 13 prisons-June 1989; jails- June 1987; probation Statistics provided much assistance in obtain tmSee The SentencingProject, "A Nation ofOne and parole - December 1988. Annual growth ing the basic data used in the report. All Million Prisoners," October1989. estimates of 5% for probation, 10% for parole, opinions andconclusions, ofcourse, remain the and 6% for jails, based on trends for the past sole responsibility of the author. two were used to derive June 1989 In the period 1984-88 alone, the probation years, population increased 35.4% and the parole population estimates based on the 1987 and The SentencingProjectisanational, non-profit 1988 data. population 52.8%. Bureauof Justice Statistics, organization which promotes sentencing "Probation and Parole 1988." reform and the development ofalternativesen tencing programs. The Sentencing The use of overall population increases results Project "In 1983, for example, half of all jail in some additional margin of error in thetotal receives major support from The Edna Mc Connell ClarkFoundation and the Public Wel inmates had annual incomes of less than population figures. For example, available prior to their SeeBureau dataappeartoindicatethatthezateofincrease fareFoundation. $5,600 arrest. of for prisoners for the period 1986-89 has been Justice Statistics, Report to the Nation on greaterfor Blacks, Hispanics,and women than Sources Crime and Justice: Second Edition, for the population as a whole. Reports also March 1988, p. 49. indicate that Blacks make up an increasing Austin, James and Aaron David McVey, "The share of the total number of drug arrests, a Impactofthe War onDrugs," NationalCouncil 5See, for Alfred Blumstein, "On major source of the increasing criminal justice on Crime Delinquency, San Francisco, 1989. example, populations. Therefore, the total criminal jus Austin. James and Robert Tiliman, "Ranking the Racial Disproportionality of United tice control rate for Black males is probably the Nation’s Most Punitive States," National States Prison Populations," Journal of understated in thecalculations. Council on Crime and Delinquency,San Fran Criminal Law and Criminology, Vol. 73, cisco, 1988. No. 3, 1982, and Joan Petersilia, Racial Cost figure for various components of the Bureau of Justice Statistics, U.S. Department Disparities in the Criminal Justice Sys criminaljustice system are those cited by the of Justice, Washington, D.C. tem, The Rand Corporation, June 1983. Department of Justice in Report to the Nation - Correctional Populations in the United States, 1986, February 1989 on Crime and Justice: SecondEdition, 1988. 6The analysis begins with the basic definition Many observers believe that current cost - "Criminal Victimization 1986," October of 1987 "criminal justice conlrolrazes" as developed figures are substantially higher than those by the National Council on Crime and Delin presented here. For example, we have used the - "JailInmates 1987," December 1988 quency in their research, but excludes figureof$l1,302 peryearforstateprisonersin - "Prisoners in 1988," April 1989 juveniles. The NCCD studies, though, see - "Probation 1984 from the Report. Many current estimates and Parole 1988," November "Sources" do not attempt to analyze control for costs of incarceration are in the range of 1989 rates by race, sex, or age. $ 15,000-25,000 per year. - "Profile of State Prison Inmates, 1986," January 1988 - Report of the Nation on Crime and Justice: 7See U.S. Department of Education, Office of Population figures within each category axe Second Edition, March 1988 Educational Research and Improvement, based on Census Bureau estimates of the U.S. Bureau of Labor Statistics, "Current Popula "Trends in Minority Enrollment in Higher residentpopulation. tion Survey," November 1989, Washington, Education, Fall 1976-Fall 1986." D.C. Bureau of the Census, U.S. Department of C As the available data for Hispanics are fairly 8James Austin andAaron McVey, "The Impact limited in most instances, these results should Commerce, Washington, D.C. of the War on Drugs," National Council on be interpreted with caution. - United States Populations Estimates by Age, Crime and Delinquency,December1989. Sex, and Race: 1980 to 1987, March 1988. MARC MAUER - Projections of the Population of the United States by Age, Sex, and Race: 1988 to 2080, Copyright 1990, The Sentencing Project Assistant Director January 1989. The Sentencing Project - Estimated HispanicOrigin Population by Age 918 F. St.,N.W., Suite 501 and Sex, December 1987. Washington, D.C. 20004 General Accounting Office, Prison Crowding: 202628-09871 Issues Facing the Nation’s Prison Systems, November1989, Washington, D.C. Racism is not merelyonesin among many, itisa radical evil dividing the human faith The author wishes to thank the following for ly and denying the new creation of a reviewing the manuscript and offering many Meddis, Sam, "Drug arrest rate is higherfor redeemed world. To struggle against it helpful suggestions: AdjoaAiyetoro National blacks," USA Today, December20, 1989. demandsan equallyradical transformation Prison Project, Frank Cullen, University of in ourown minds and hearts as well as the Cincinnati, Timothy Flanagan SUNY at Al The Sentencing Project, "A Nation ofOne Mil structure of our society. bany, Douglas McDonald Abt Associates, lion Prisoners," October 1989, Washington, Bernard Meltzer Central Michigan Univer D.C. sity, HarryMi/ca Central Michigan Univer The structures axe subtly racist, for these U.S. Department of Education, Office of structures reflect the values which society sity, William Sabol UniversityofMaryland, Educational Research and Improvement, Richard Seltzer Howard University. Washington, D.C., "Trends inMinorityEnroll upholds. They aregearedto thesuccessof Lawrence Greenfeld of the Bureau of Justice ment in Higher Education, Fall 1976-Fall majority and the failure of the minority. 1986," April 1988. Members of both groups give unwitting U.S. Department of Justice, "Prison Popula approval by accepting things as they are. tion Jwnps 7.3 Percent in Six Months," Sep Perhaps no single individual is to blame. tember 10, 1989, Washington,D.C. The sinfulness is often anonymous but EQUAL OPPORTUNITY? Wright, Erik Olin, The Politics ofPunishment, nonetheless real. The sinis socialinnature HarperandRow, New York, 1973. in that each of us, in varying degrees, is responsible. All of us in some measure are accomplices. %Blacks FOOTNOTES Brothers and Sisters to Us DPA 4% See Bureau of Justice Statistics, Department KY State Police 31% of Justice, Correctional Populations in the UnitedStates, 1986, and ‘Prisoners 1988." Pastoralletter of the United States Catholic in Bishops

April 1990/The Advocate 14 THE RESURGENCE OF RACISM THE PREGNANTAND IN "NOEBEL PRIZE" FOR CIVIL LIBERTIES IS PRISON AWARDED House and Senate conferees met to recon cile differences between bills passed to reauthorize the federalprogram providing special food assistance for low-income pregnant women, infants and children WIC. Because of budget restraints, only about half theindividuals eligible for this assistance actually receive it. But one group specially in need - pregnant women in jails and prisons - axe specili cally excluded from the program by a regulation of the U.S. Department of Agriculture. The House-passed WIC bill would remove this bather, and theSenate should accept that provision. The prison population of this country is growing enormously, but the number of women incarcerated is increasing at a much faster rate than that of the male population. Of the 31,000 or so women now in prison, about 10% present special problems because they are pregnant. Many have been drug users and alcohol abusers whose babies are already at great risk. But the obstacles toasuccessfulpreg nancy axe increased if special attention is not paid to their nutrition. A survey con ductedin38 statesrevealed that 58% of the institutions serve exactly the same diet to pregnant inmates as to others and in most cases that diet does not meet the minimum recommendedallowances for pregnancy. The House provision does notrequire that WIC money be used for prisoners. Itsimp ly makes that option available states. to the On January 19, 1990 Kentucky’s Anne Braden Nor does the proposal provide any addi are at a crossroads on this issue. It’s a was awanled the first annual Roger Baldwin seeming contradiction. On the one hand, tional federal fundsfor this purpose. Why Medalof Liberty from theNational ACLU for then, should states divert anyof the scarce we are at a moment in time when it is her 41 years of work for civil rights and civil possible money to offenders some would find un liberties. Part of her remarks follow: to build truly multi-racial coali worthy of help? First, of course, because tions aroundprimary issues - the environ thereal beneficiaries arebabies for whom ment, housing, economicjustice, rebuild an extra egg, an extracarton of milk or a We need to mount a massive counter-of ing our cities - and that’s happening in piece of cheese every day can made a life fensive against the resurgence of racism that we’ve seen in the past two decades. many places. We are at that moment be saving difference. Second, ifone chooses cause more and more white tube hardheaded aboutit, because improv Not just because we all know racism is a people really ing prenatal nutrition costs society less in bad thing but because unless we do mount are ready to move beyond racism. That the long run. Prisoners’ babieswith health such an offensive, there may not be any has come about because the struggles for problems must be cared for with public freedom for any of us in the future. racial justice, in which we’ve all been funds; even the healthy ones almost all go involved, really didopen up minds to new into foster care soon after birth. ways of thinking. And let us not forget We live in a society that wasactually built that people died for this moment. Finally, decent care must be given to these on racism; this was thefactor that from the women because they are in the custody and beginning contradicted and corrupted our care ofthe state, which hasaspecialobliga democratic ideals. Therefore, because Yet at the same time we see this great tion for their welfare. Unlike pregnant this is the base, it has always occurred that opportunity, we also see an alarming rise womenin thecommunity, prisonerscannot when a struggle was mounted against in racism - racist violence, bombs killing expect help in the form of supplementary a judge and civil rights attorney in the food from family, friendsor charity. They racism, a struggle that involved whites as well as people of color, the doors to a South and threatening our civil rights areentirely dependent on theprison system leaders and the "respectable" racism that for what they eat and for the medical care better society opened wider forus all. All has that violence - they receive. The House bill recognizes of our history proves this. It was true in made possible a whole society’s obligations not only to these un the anti-slavery movement; it was true generation of whites that has grown up fortunate women but to their completely during Reconstruction; it was true in the hearing from their national leaders that innocent children. The Senate should go union movement in the 1930s; and it was now it is whites who are being dis along. certainly true in the 1960s. criminated against. Copyrighted 1989, The Washington Post September12, 1989, Reprinted by perniis I feel compelled to talk about this now Photo courtesyof andarticle reprinted by sion. because, as we enter the 1990s, I feel we permission of the American and Kentucky Civil Liberties Unions.

April 1990/The Advocate 15 PUBLIC ADVOCACY COMMISSION

In 1972 theGeneral Assembly enacted legisla Law School Deans or Designee Michigan in 1970. He is currently a tion to create a statewidepublic defender sys 3 Positions Professor at Chase Law School. He was tem in response to thelitigation that originated appointed andreappointed by DeanHenry in Campbell Co. challenging the requirement L. Stephens, Jr. of Chase Law SchooL that a lawyer had to represent an indigent criminal defendantpro bono. See Bradshaw v. Ball, 487 S.W.2d 294 Ky. 1972. Governor’s Appointment From KBA Recommendations 2 Positions KRS Chapter 31 set up a statewide public defender system whose funding was shared by county fiscal courts and the state, with the ultimate responsibility on the fiscal court for any money shortfalls. When established, the public defender’soffice was within the Justice Cabinet. Its first headwas Tony Wilhoit.

In 1982 the General Assembly enacted legisla tion, KRS 3 1.015, that created a Public Ad vocacy Commission. DPA became part of the 1. Susan Kuzma - Appointed August 16, Public Protection and Regulation Cabinet in 1989 to the unexpired term of Kathleen 1982. Bean. Her term will expire July 15, 1990. She was appointed by Dean Barbara ThePublicAdvocacy Commission reviews and Lewis of the University ofLouisville Law adopts an annual budget for DPA andprovides School to the Commission. She replaced support for budgetary requests to the legisla Kathleen Bean. ture. Upon a vacancy of the Public Advocate position, theCommissionrecommends3 attor neys to theGovernor for appointmentas Public 2. John Batt replaced William H. Fortune 4. Robert W. Carran - First appointed Advocate. whose term expired on July 15, 1989. His February 29, 1984 by Gov. Collins and term expires September 18, 1993. Bait The Commission is charged with insuring the appointed reappointed by Gov. Collins on February was by Dean Rutherford 5, 1986 and reappointed on October 10, independence of the Department of Public Ad Campbell of the University of Kentucky 1989 by Governor Wilkinson. His term vocacy. It is a 12 person Commission. Each Law SchooL person serves a 4 year term. It is currently expires July 15, 1993. Bob is the lawyer composed of the following persons: administrator of the Northern Kentucky Public Defender System serving Boone, Gallatin and Kenton Counties. He is a 1969 graduate of Chase Law School. He is a member of the KACDL. He replaced Henry Hughes of Lexington on the Com mission.

COMMISSION CHAIRS 5. Allen W. Holbrook - Appointed May AND THEIR TERMS 23, 1986 by Governor Collins from KBA list. His term expires July 15,1990. Allen is with the firm of Holbrook, Wible and Anthony M. WIlhoIt from September 29, Sullivan, 100 St. Ann St., Owensboro, 1982 to October 28, 1983. Kentucky. Prior to private practice, he worked as both an appellate lawyer in 3. William R. -Current Chairofthe Jones Frankfort and trial lawyer in Morehead Max Smith from October 28, 1983 to DPA Commission. Appointed July 15, January 6, 1986. with DPA, and served as a federal public 1982. Reappointed March 4, 1985 and defender for the Eastern District of Ken Paula M. Ralnes from March 21, 1986 to September 13, 1988. His term expires July tucky, Lexington. He is a Board member June 10, 1986. 15, 1992. Former Dean 1980-1985 of of the Kentucky Association of Criminal Chase SchoolofLaw. He received his J.D. Defense Lawyers. Hereplaced Max Smith William R. Jones from October 10, 1986 from the University of Kentucky in 1968, of Frankforton the Commission. to Present. and his LLM. from the University of

April l99OfTheAdvocate 16 Kentucky Supreme Court Lexington. His term expires July 15, partner in the Milliken Law Firm, 426 E. Appointments2 Positions 1990. Gary Payne was appointed Fayette Main Street, Bowling Green. He received District Judgein 1988 by Gov. Wilkinson. his J.D. from the University of Kentucky He was elected to that position in 1989. in 1964. He served as Mayor of Smiths He was an Assistant Fayette Co. Attorney Grove from 1982-85, and is currently its and for the Corrections Cabinet, General City Attorney. He is a member of the Counsel to the Secretary of State, Chief Kentucky Association of Criminal Legal Officer forthe 138th Field Artillery Defense Lawyers. He replaced Lee Hud Brigadeand is amember ofthe State Child dieston on the Commission. Sexual Abuse and Exploitation Preven tion Board. He is a 1978 graduate ofUK’s law school. Former DPA Commission 10.VACANT due to the resignation of Members Cynthia Sanderson in January, 1990. Ms. Sanderson is an attorney in Paducah and Susan Stokley-Clary - Was reap 6. was appointed by Gov. Wilkinson on Oc pointed on June 29, 1989. She was tober 10, 1989 to fill expired term ofPatsy Kentucky Supreme Court originally appointed June 26, 1985 by the McClure.Ms. Sandersonresignedinorder Appointments Court of Justice. Her termexpires July 15, Court to takeaposition in the County Attorney’s 1993. Susan is the Supreme Ad office in McCracken County. 1. J. Calvin Aker, Kentucky Supreme ministrator, andserves as General Coun CourtJustice -July, 1982-February, 1983. sel for the Supreme Court of Kentucky. House Appointment She is a 1981 graduate of the University Speaker of the 2. Frank W. Heft, Louisville Public 1 Position of Kentucky School ofLaw. She replaced Defender - February, 1983-July, 1985. Frank Heft of the Louisville Public Defenders Office on the Commission. 3. Margaret H. Kannensohn - Supreme Court Appointment. May 25, 1988 - June 1989.

4. Paula M. Ralnes, Lexington Criminal Defense Attorney - January, 1984-June, 1986.

S. Anthony M. Wllholt, Kentucky Court of Appeals Judge - July, 1982-October, 1983. Governor’s Appointments 11. Lambert Hehi, Jr. - Appointed June 28, 1982 by the Speaker of the House. 1. Helen Cleavinger - August, 1982- 7. Martha Rosenberg was appointed on Reappointed July 14, 1986 by Governor 17, 1989 the unexpired term of Collins. His term expires July 15, 1990. May, 1988. Appointed by Governor July to Brown. MargaretH. Kannensohn by theCourt of He hasbeenaCampbell Co. District Judge Justice. Her term expires July 15, 1990. since 1984. He wasCampbell County Fis cal Court Judge-Executive for 1978-82. Governor’s Appointment From He is a 1951 graduate of the Chase School Protection and Advocacy Advisory ofLaw. Board Recommendations 1 Position President Pro Tem of the Senate PUBLIC ADVOCATES AND 8. Denise Keene - Appointed to an unex 1 Position pired term on May 16, 1989 by Governor THEIR TERMS Wilkinson; reappointed by him on Oc tober 10, 1989. She is an certified public accountant in Georgetown and is Presi 1 Anthony M. Witholt 1972-1974 dent of the Ky. Association for Retarded Citizens. The younger of her two sons is 2 A. Stephen Reeder* Dec. 27, 1974 multi-handicapped. Her term will expire ONE DAY ONLY on July 15, 1993. She replaced Helen Cleavinger who served on the Commis 3 Jack K Farley March, 1975- October sion August 1987-May 1988. 1,1983 Governor’s Appointments 4 Paul F. IsaacsOctober 1, 1983-Present 2 Positions *Appointed but did not serve.

9. Gary D. Payne - Appointed May 16, 1989 by Governor Wallace Willdnson to 12. Currle Mllliken - Appointed by Gov. the unexpired term of Jesse Crenshaw of Wilkinson on December 16, 1988. His term expires July 15, 1990. He is a senior

April 1990/The Advocate 17 2. Jesse Crenshaw - Lexington Criminal WRITFEN INTERVIEW WITH PUBLIC ADVOCACY Defense Attorney - August, 1982-July, 1986. Appointed by Governor Brown. COMMISSION MEMBER SUSAN M. KUZMA

3. Lee Huddleston - July, 1986-August, 1988. Appointed by Governor Collins.

4. Henry Hughes - August, 1982- February, 1984. Appointed by Governor Brown.

Patsy McClure- February, 1986- July, Tell us a bit about who you are, your S. background, what qualities you bring to 1989. Private citizen, Boyle Co., Ken tucky the Commission. I am an Assistant Professor of Law at the UniversityofLouisville School ofLaw, aposi - Paris Criminal 6. Nora McCormick tion I have held since August 1988. I teach Defense Attorney - July, 1986-April, primarily in the areas of Criminal Law and 1988. Appointed by Governor Collins. Criminal Procedure.

7. James Parks, Jr. - Kentucky Court of Iwasborn and raised in Cleveland, Ohio, and Appeals Judge - August, 1982-July, 1985. attended undergraduate school at Ohio State Appointed by Governor Brown. University. I graduated in 1975 with a major in Classical Languages Latin and Greek. I then attended law school atOhio State, receiv 8. Max Smith - Frankfort Criminal ing mylaw degree in 1978 and being admitted Defense Attorney - March, 1983-January, to theBar in Ohio in November of that year. I 1986. Appointed by Governor Brown. served as alawclerk to theHonorable William K. Thomas, United States District Judge for theNorthern District of Ohio, from July 1978 Susan M. Kuzma 9. Paul G. Tobin - Louisville Public Defender - August, 1982-December, toJuly l989,andto theHonorable JohnD. Holschuh, 1982. Appointed by Governor Brown. United States District Judge for theSouthern District of Ohio, from July 1980 to September 1981.

Law School Deans or Designees I then took a position as a trial attorney with the Criminal Division of theUnited States Department of Justice in Washington, D.C. Beginning in January 1982,1 was assigned to the Public Integrity Section of theCriminal Division. That Sectioninvestigates and prosecutes cases involving public 1. Kathleen Bean - January 19, 1988- 1989. corruption at the federal, state, and local levels, and is responsible for handling matters that fall July, under the Independent Counsel Statute. During my tenure with thePublic Integrity Section, I was involved in various investigations andprosecutions, both in Washington and throughout thecountry. I also had abrieftourofduty in the officeof theUnited States Attorneyfor theDistrict ofColumbia, 2. William H. Fortune - Appointed July 15, 1984- September 18, 1989. where I was involved in prosecuting local crime. Because of my background in prosecution and my teaching in the areas of Criminal Law and 3. Robert G. Lawson - July, 1982- June, Procedure, I believe! have a good baseof knowledge, both theoreticaland practical, about the needs 1984. of criminaljustice systems and theroleof defense lawyers in them.

Why are you willing to serve on the Public Advocacy Commission? 4. Barbara B. Lewis - July, 1982- January, 1988. I believe it essential to the fair administration of justice that adequate provision be made for defending persons accusedof crime, not simply to ensure fairnessoftreatmentin theindividual case but also to ensure that as a general mattertheexercise of governmental authority by themain players President Pro Tern of the Senate Ap in thecriminal justice system-police, prosecutors,judges -is fair and even-handed.!, therefore, pointment am interested in contributing my efforts toward the achievement of this goal by serving on this Commission.

William Rummage - July, 1. E. 1982- do July, 1984. Reappointed on September What you see as the Department of Public Advocacy’s major strengths and weak 25, 1984 by Governor Collins.He served nesses? until July 14, 1986. Having been a member of the Commission for only a few months andhaving lived in Kentucky for a relativelyshort period of lime, I think itpremature to offer an opinion on these issues atthis point. Whatdo you hope to accomplish as a Public Advocacy Commission member? I am concerned about the financial situation of the Department of Public Advocacy, particularly with respectto starting salaries forattorneys seeking positions in the publicdefendersystem.! would like to do what! can to make some progress in this area, to ensure that qualified lawyers are not discouraged from working in the public sector taking appointments in criminal cases because compensation levels axe so low.

April l990tTheAdvocate 18 INTERVIEW WITH responsible for changing our laws and they the legislature, Commission members and all must be good attorneys in orderto preserve the advocates for the department’s interestsneedto MARTHA ROSENBERG tights oftheir clients for purposes ofappeal and work to develop an ongoing relationship with thereby we’re all affected. members of the legislature. While Commis sion members and DPA staffhave alwayscom How can the Commission insure real municated their support for DPA’s budget to independence for DPA? the leadership in the legislature and the ap propriate committees, commission members The Department’s will have a sign of inde this year attended and became more active in pendence when its financial needs aremet, so budgethearings. Commission Chair Bill Jones decisions aren’t based on a shortage of funds. testified before the Appropriations and Revenue Committees urging an increase in the Cabinet’s budget recommendation. During the 1989-90 biennium budget period the Public Advocate worked effectively for increased Th4TERVIEW WITH funding, securing $800,000 more than the SUSAN CLARY Cabinet’s request Hopefully, these continued efforts on behalf of DPA will be reflected during this biennial budget What do you see as DPA’s major strengths and weaknesses? The strengths are the commitment, dedication and skills of the staff.

Martha Rosenberg The Department’s weaknesses largely stem fromits underfunding. Excessivecaseload and Can the DPA Commission change the low salaries lead to attorney burnout and problems that risetherefrom. political atmosphere in which DPA operates for the better? How? Why should attorneys want to do I’dliketo seeithappen,butl’mnotsurewe can public defender work in Kentucky? because of theincreasingly conservative views Obviously, salary is not thelure that attracts an of the population of Kentucky. They’re not attorney to public service. Kentucky is a poor inclined toward DPA’s work and do not want state, andmany of its citizens are indigent and to pay taxes to defend criminals. They don’t cannot afford counsel. Theirs is not a popular realize that it is necessary to preserve all Susan Clary cause. Public service offers the opportunity to citizen’s rights. help Kentucky’s disenfranchised and DPA of How can the Commissionadvance the fers attorneys immediate "hands on" ex Can the DPA perience and excellent education and tuining interests of DPA in the Legislature? Commissionchange the programs. political atmosphere in which DPA The best way to advance DPA’s interests is to operates for the better? How? Why is it important for Kentucky to lobby for more fundsfor DPA. It is thebiggest have quality public defender ser area of need as the Department is blessed with Due to politics, the Commission came into excellent attorneys, but keeping them becomes existence in 1982 as a check on the power and vices? a problem because the salaries offered are so performance of the Public Advocate. KRS low. There are many reasons. As a society we are 31.015 empowers the Commission to recom judged by our treatmentof andcommitment to mend nominees to the Governor for appoint those with special needs What do you see as DPA’s major mentas public advocate; or unpopular causes, to assistin developing such as, juveniles, indigents, and the mentally strengths and weaknesses? procedures for staff selection; to review and ill. Such commitment to quality public supervise the public advocate’s performance; defender services is also beneficial on a more DPA’s strength lies in the extremely dedicated to assist in ensuring the department’s inde practical level, serving attorneys that work for the office. DPA’s pendence throughpublic as a check on the educationand review prosecution and judiciary, thereby ensuring weakness is the lack of funding that leads to and to adoptandpropose budgetrequestsin the that the legal system burnout of the attorneys. Another weakness is General Assembly. functions effectively. the Provision ofquality public defender services is the way public perceives the Department. good economics since it minimizes judicial Why should attorneys want to do Currently, the Commission is examining its time. statutory mission and discussing ways to more public defender work in Kentucky? effectively advance theinterests of the Depart How can the Commission insure real ment within the Executive Branch and before independence for DPA? Personally, Ifeelwhat public defendersdo goes theGeneral Assembly. DPA restson the horns to our most basic constitutional rights and goes of a dilemma, as a member of the Executive Recognizing the need for improved funding for thebetter good ofall since benefits overflow Branch which must often advance a budget to the general public. I am idealistic perhaps, and theconflictsinherentwithinthe system, the before the legislature that may be inadequate. Commission has begun long term planning but you protectonepersonandtherebypreserve In the future, members of the Commission plan within the department. Included process the tights of all. in this to become more involved in theprocess, meet will be an evaluation of the need for a fully ing prior to thesubmission of theDepartment’s funded statewide system of full-time offices. Why is it important for Kentucky to budget to the Cabinetand givinginput thereon. By becoming more active in the budget have quality public defender ser process, and by reevaluating the long term vices? How can the Commission advance the needs of the Department, the Commission interests of DPA in the Legislature? hopefully will more effectively advance the The Public Advocates handle the majority of interests of theDepartment. criminal cases and therefore are most likely In order to advance theinterestsof theDPA in

April 1990/The Advocate 19 WEST’S REVIEW

Linda West

KENTUCKY COIJ tT OF Psychiatric Association lists cocaine ad clause." APPEALS diction as a mental illness. DUI - SHOW CAUSE HEARING/ The Court of Appeals rejected both of LAWENFORCEMENT OFFICER Martin’s arguments. "Although we have Schneider v. Commonwealth SUFFICIENCY OF EV] DENCE. been directed to no cases specifically in 37 K.L.S. 2 at 16 PRESERVATION OF iRROR terpreting Section 2 of KRS 504.020, that February 2, 1990 Schuttemeyer v. Comnie rtwealth section of the statute excludes from the After he was arrested 37 K.L.S. 1 at 1 defmition of ‘mental disease or defect’ an for DUI, Schneider January 12, 199 abnormality manifestedonly by repeated refused a Breathalyzer test. A Jefferson criminal or otherwise antisocial conduct. County Corrections employee, or "peace officer," as defined by KRS 196.007, In this case, the defendant c allenged the We hold that chronic drug abuse neces warned Schneider that his license could be sufficiency of the evidence t support his sarily falls within that exclusionary involuntary commitment pur uant toKRS Chapter 202A. The statute eta out four criteria whichmust be estab ished before involuntary commitment ma be ordered. Schuttemeyer specifically argued that there was insufficient proof that hospitalization was the "lei t restrictive mode of treatment" Howev r, this issue was not preserved at trial.

The Court nevertheless a dressed the error, stating: ‘We will cons der the issue on the merits, since at least ne essential element to support the hosp talization of the defendant was not esta lished [cita tion omitted]. Such a failure mounts to a palpable error affecting th substantial due process rights of Schutte rieyer, and a manifest injustice has result , whichal lows us to consider the issue eventhough it was not specifically prese ed."

INSANITY AS DEFENSE ro THEFF Martin v. Commonw aith 37 K.L.S. 2 at 1 February 2,199 COURT OF APPEALS RELOCATED

Martin defended a charge o shoplifting TheCourt ofAppeals hasnew offices to housetheir staffof 8 attorneys, 4 legal secretaries, on the theorythat his addicti n to cocaine 11 law clerks, 1 micro-film technician and 4 administrative staff. The building has an was a mental illness which ndered him office forChiefJudge Howerton, a conference/pretrialroomand a courtroom with seating insane. On appeal, he urged error by the for55 persons. The building is visible from 1-64. Their new addressis Democrat Drive, trial court in refusing him a jury instruc Frankfort, Kentucky 40601, 502 564-7920. tion on insanity and in refw lug to allow the introduction ofproof that he Diagnos tic and StatisticalManual ofI heAmerican

This regularAdvocate column reviews the published criminallaw decisions of theUnited States Supreme Court, theKentucky Supreme Court, and the Kentucky Court of Appea s, except for death penalty cases, which arereviewed in The Advocate Death Penalty column, and except for search and seizure cases which are rc viewedin The Advocate Plain View column.

April 1990ffheAdvocole 20 revoked because of his refusal, but KENTUCKY SUPREME MISTRIAL Schneider still declined to take the test. Brown v. Commonwealth COURT 37 K.L.S. 1 at 15 January 18, 1990 Alter proper notice a revocation hearing PFO ENHANCEMENT OF was held. Neither Schneider or his attor SENTENCE Brownrequested a mistrial when the com ney appeared. However, an associate of FOR MURDER/DISCOVERY monwealth introduced evidence of other counsel appeared and re Schneider’s Berry v, Commonwealth crimes violation ofa pretrial agreement. quested a continuance. The continuance in 37 K.L.S. 1 at 14 The Court granted the mistrial but stated was denied and Schneider’s license January 18, 1990 he would revoke Brown’s bond while the revoked. case was continued because Brown had The PFO statute provides for enhance "threatened" two witnesses. At that point The Court of Appeals rejected ment of sentences assessed under KRS the defense withdrew its motion for Schneider’s argument that the con 532.060, the statute ettablishing penalties mistrial. tinuance should have been granted, The for Class A, B, C, and D felonies. Berry held that 186.5654] allows argued that his sentence for murder was Court "[KRS Kentucky Supreme Court held that the secretary to summarily revoke a notsubject to enhancement under thePFO The without further consideration of statute because under KRS 507.0202 "the trial court erred in imposing the con license detention upon its decision to any evidence, should the party question murder is a "capital offense" and the dition of in grant a new trial." The trial court’s an fail to appear, or fail to have a good excuse penalties for it are not set out in KRS not appearing." The Court also 532.060 but in KRS 532.0301. nouncement that it would alter Brown’s for was violation of rejected Schneider’s argument that the conditions of release in RCr 4.40, which states that the court may Corrections officer who requested he sub alter conditions of release upon a motion mit to a Breathalyzer and advised him of the consequences of refusing had no by the commonwealth and based upon authority to do so because he was neither clear and convincing evidence. Neither of those conditions were met in Brown’s thearresting officeror a "law enforcement officer" as specified in KRS 186.5653. case. "Thaithis error was prejudicial to the In the absence of any statutory definition defendant is beyond question, as it in of "law enforcement officer," the Court duced him to decline the new trial to which court had determined he was held that a "peace officer" had sufficient the law enforcement authority to require a entitled." Justices Leibson, Gant, and Breathalyzer test Wintersheimer dissented. WrFNESS CLAIMING FIFTH AMENDMENT PRIVILEGE Clayton III v, Commonwealth JUVENILE TRANSFER 37 K.L.S. 1 at 16 Garvin v. Commonwealth January 18, 1990 37 K.L.S. 3 at February 9, 19O AtClayton’s trial on chargesof trafficking in cocaine, he unsuccessfully sought to introduce the testimony of a witness who asserted his Fifth Amendment privilege. At Garvin’s juvenile transfer hearing, the The appellate court held that "[t]he trial commonwealth introduced evidence that judge did not commit reversible error in Gar.rin had plead guilty to a felony within refusing to allow Clayton to call a witness one year of the charged offense. Defense The Court agreed. "This Court holds that who stated he would exercise his Fifth counsel then moved for a psychological the trial court committed reversible error Amendment right to refuse to answer evaluation of Garvin on the grounds that in imposing an enhanced sentence under questions." The trial court also didnot err Garvin could not "knowledgeably and the persistent felony offender statute be in refusing to instruct the jury regarding fully" waive his constitutional rights and cause murder is a capital crime and not the unavailability of the witness. The therefore his previous conviction was in- subject to such enhancement." The fact defense could have obtained an instruc valid. Defense counsel also offered to in that the commonwealth did not seek the tion to the jury that the witness was un troducethe testimony of a CHR employee death penalty did not transform the of available to either side but didnotrequest asto Garvin’s mental status. Bothrequests fense into a Class A felony. such an instruction. were denied, The Court additionally held that Berry Finally, Clayton was not entitled to have The Court of Appeals held that the district was not prejudiced when he did not be the prosecutor disqualified because court committed reversible error. "[KRS come aware of a photo identification of Clayton’s father had punched the 640.0102] specifically provides that a him until the day of trial where the com prosecutor on a prior occasion where an defendant may put on proof showing monwealth had accorded thedefense open inquiry by the trial court showed"that the reason why a given caseshould remainin file discovery and Berry refused a con prosecutor bore no ill feeling toward District Court. By refusing to hear the tinuance in order to adjust his defense. Clayton." KRS 15.7333. appellant’s tenderedproof andby preclud There was also no error lit the trial court’s ing the appellant of the opportunity to ruling that Berry was not entitled to develop the evidence, the District Judge, another witness’ oral suggestion that she in essence, summarily deprived the appel would identify him at trial. lant of a statutorily grantedtight."

April l99OiThe Advocate 21 BAVFERED WIFE SYNDROME Commonwealth v. Craig 37 K.L.S. 1 at 17 UNITED STATES SUPREME COURT RULES January 18,1990 On December 5, 1989, the Court revised its Rules, effective January 1, 1990. The new Rules may be found in Volume 110, No. 4 of West’s SupremeCourt Reporter December 15, 1989, This decision affirms a decision of the andin West’s Federal Reporter, No.53 December10, 1989. Court of Appeals reversing Craig’s con viction of manslaughter in the shooting Among the changesare the following: death of her husband. 1. The Rules have been rearranged and renumbered: The Rules governing review on writ of certiorari, formerly set out in Rules 19 through 23, now appearin Rules 10 through 16. The Court held that Craig should be per mittedto introduceas expert testimony the 2. A criminal defendant now has 90 days in which to ifie a petition for cert from a state court testimony of a spouse abuse center direc judgment an additional extension of up to 60 days may be granted "for good cause shown." tor whohad a Master’s degree in counsell Rule 13.1, 13.2 ing and five to six years experience work ing with battered women and researching 3. Although the time for filing a cart petition runs fromthe date of the denial of the petition for and writing with regard to "battered rehearing or the entry of a subsequent judgment, a "suggestion made to a United States court ofappeals forarehearingen banc pursuantto Rule 35b, Federal Rules ofAppellateProcedure, woman syndrome." At a retrial the wit is not a petition for rehearing within the meaningof this Rule." Rule 13.4 ness should be permitted to testify as to whether or not Craig was suffering from 4. The questions presented "mustbe setforth on the first pagefollowing the coverwith no other the syndrome at the time she shot her information appearing on thatpage." Rule 14.1a. husband. The decision specifically over rules Commonwealth v. Rose, 725 S.W.2d 5. In addition to other arguments, "the brief in opposition should address any perceived Ky. 1987, which held that battered misstatements of fact or lawset forth in the petition which may have a bearingon the question woman syndrome was a mental condition of what issues would properly be before the Court if certiorari were granted... Counsel are and as such could be testified to expertly admonished that they have an obligation to the Court to point out any perceived misstatements only by a psychiatrist or clinical in thebrief in opposition, andnot later. Any defect of this sort in the proceedings below that psychologist. Chief Justice Stephens, and does not go tojurisdictionmay be waived ifnotcalled to the attention ofthe Court by respondent Justices Leibson and Vance dissented. in the briefin opposition." Rule 15.1; second emphasis added. 6. If the date a pleading is due falls on a Saturday, it is due on the following Monday. Rule CONSTITUTIONALiTY OF KRS 30.1. 412.355/ HEARSAY OPINION EVIDENCEI 7. Colors have now beenspecified for the covers of various pleadings. Rule 33.3. OTHER SEXUAL OFFENSES Drumm v. Commonwealth 8. Where typewritten pleadings are permitted, counsel may use 8 1/2 by 11 inch paper. Rule C 37 K.L.S. 1 at 20 34.1. January 18, 1990 9. An originalandtwo copies mustbe filed of anyapplicationaddressedtoan individual Justice. This caseholdsKRS 4 12.355 unconstitu Rule 22.2. tional as an encroachment by the legisla Gail R. Wejnheimer tire upon the rule-making power of the California AppellateProject judiciary. The statute purports to make Reprinted with Permission admissible the out-of-court statements of "a child victim regarding physical or sexual abuse." The Court refused to ex of the cause or external source thereof TRAFFICKING-- SUFFICIENCY OF tend comity to the statute "because it fails insofar as reasonably pertinent to diag EVIDENCE/BEST EVIDENCE the test of ‘statutorily acceptable’ sub nosis or treatment" The Court directedthe RULE stitute for currentjudiciallymandatedpro trial court to decide the admissibility of Goddard v. Commonwealth cedures. Fundamental guarantees to the the children’s statements "by making a 37 K.L.S. 1 at 24 criminally accused of due process and judgment asto whether ‘prejudicial effect January 18,1990 confrontation ...are transgressed by a outweighs ...probative value." statute purporting conviction to permit In this case the Court held that there was based on hearsay where no traditionally The Court additionally held that evidence sufficient evidence that Goddard was in acceptable and applicable reasons forex possession of cocaine based on his ceptions apply." of aberrant sexual conductother than that charged should be excluded unless it was presence in the apartment where the drug similar to that charged, not too remote in wasfound along withhis personal effects, With respect to the child victims’ out-of- time, andrelevant under an exception to his proximity to items of drug parapher court statements to a physician the Court the rule excluding evidence of other nalia, and the presence of mail addressed abandoned the requirement that such crimes. Justice Vance, Chief Justice to Goddard at the apartment. However,the statements areadmissible under an excep Stephens, and Justice Combs dissented Court held that the best evidencerule was tion to the hearsay rule only if they were from that portion of the opinion adopting violated when the commonwealth was al made for the purpose of seeking medical Fed.R.Evid. 8034. lowed to introduce testimony regarding treatment. The Court instead adopted mail addressed to Goddard at the apart Federal Rule of Evidence 8034 which ment withoutproducing the letters them makes admissible "Statements made for selves. The best evidence rule is stated in purposes of medical diagnosis or treat R. Lawson, The Kentucky Evidence Law ment and describing medical history, or Handbook, Sec. 7.15 2nd ed. 1984 as past or present symptoms, pain, or sensa follows: "When attempting to prove the tions, or the inceptionor general character contents of a writing, a party must intro-

April l99OiTheAdvocate 22 duce the ‘original’ of that writing unless there is a satisfactory explanation for its 200 YEARS AGO, HIGH COURT OPENED WITH LOW PROFILE nonproduction." The Court concluded that: "[T]he name and address on the en was ‘contents of velope precisely the the WASHINGTON - The Supreme Court turns 200 today, marking the bicentennial of whatby writing’ the Commonwealth sought to all accounts was aslow start. Indeed, not enough justices even showed up Feb. 1, 1790, to give prove. Without production of the writing, thehigh court a quorum. ChiefJustice John Jay had to put off thecourt’s first meeting until the the envelope itself, testimony as to its next day. It didn’t matter, no case had arrived. content constituted a violation of thebest evidence rule." Chief Justice Stephens The Constitution, written in 1787 and ratified thenext year, called for "one supreme court,"but and Justices Gent and Wintersheimer dis President Washington did not nominatejustices to the bench until late 1789. The nextFebruary, sented. only three of the six showed.

One, Justice William Cushing of Massachusetts, appeared in a powdered wig - a British CHANGE OF VENUE/VICTIM’S custom that never caughton in thenew nation. CHARACTER! AUTHENTICiTY OF TAPE RECORDING/ The next day, Justice John Blair of Virginiaarrived and a quorum was had. The court some IMPEACHMENT administrative chores, then adjournedits first term on Feb. 10. The second term later that year OF DEFENDANT WITH lasted two days; still no case. VOLUNARYADMISSION/ SENTENCING BY These days, a court term lasts nine months or so and about 5,000 new cases axe presented. The now decisions fewer decisions were OTHER THAN TRIAL JUDGE court announces about 150 each term. Noting that than 70 issued in the court’sfirst decade, retired Chief Justice Warren Burger said recently: "I suspect Campbell v. Commonwealth that members ofthe court would like the docket to move in that direction." 37 K.L.S. 2 at 18 February 8, 1990 By the time thecourt announced its first decision in 1792, Jay declared that he had found life in the capital "intolerable." Two years later, he took a leave of absence to becomeambassador The Court in this case rejected various to England. 11795 he quit to takewhat he considered a more prestigious job, governorof New allegations of error and affirmed York Campbell’s first degree manslaughter conviction. First, the Court held that there Much has changed besides the court’s caseloadin two centuries. Since 1869, there have been was no error in the trial court’s denial of ninejustices. Since 1935, the court has hadits own building. Since 1981, members of the court have notaddressed each otheras "Mr. Justice." That endedshortly before Sandra Day O’Connor Campbell’s motion for change of venue. joined the bench. The Court reiterated the rule that whether to grant a change of venue addresses itself But some things haven’t changed. The chant that ends with "God save the United States and to the "sound discretion ofthe trial court." this honorable court" still opens each session. Brassspitoons are still hidden behind the bench. The Court found no abuse of discretion. Quill pens are still given to each lawyerappearing before thejustices. And absenteeism is still a problem. The court marked its birthday Jan. 16 because several members planned to be out of town today. The Court held that the introduction of favorableevidence regarding the victim’s Reprinted from the Courier-Journal, February 1, 1990 character was not error where only one witness offered the testimony, as opposed to five in Sanborn v. Commonwealth, 754 S.W.2d 534 Ky.1988, and where the tes tirnony was not "riddled with emotional The Court held that a sufficient foundation RAPE SHIELD LAW/PFO outbursts, nor was it overly expounded for the admission of a taped message, left VALIDITY upon by the prosecution." by the defendant on the victim’s answer OF PRIORS/SEARCH AND ing machine, was laid where chain of cus SEIZURE tody of the tape was unbroken and where Reneer v. Commonwealth the voice on the tape was reliably iden 37 K.L.S. 2 at 25 tified as the defendant’s. February 8, 1990

The Court held that the trial court was not The Court held that the trial court didnot required to declare a mistrial sua sponte err in disallowing pursuant to KRS when the commonwealth attorney cross- 510.145, testimony by the defendant to examined the defendant regarding her alleged prior consensual sex acts between statement to police which the trial court him and the victim. The exclusion of the had previously ruled inadmissible under evidence was not error where the victim Miranda v. Arizona, 384 U.S. 436, 86 denied ever having previously had sex S.Ct. 1602, 16 L.Ed.2d 694 1966. The with the defendant and where there were statement was admissible to impeach the two witnesses to the charged offense who defendant’s testimony. Oregon v. Hass, testified that the victim didnot consent. 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 1975. The Court also held that two priorconvic tions based on guilty pleas were properly Finally, the Court held that the defense introduced at Reneer’s PFO proceeding. had waived any error by its failure to Reneer’s contention that the guilty pleas object when a judge other than thejudge were obtained without counsel and were who presided at trial conducted the sen involuntary was disproves by the tes tencing hearing and signed thejudgment. timony of the attorneys who represented

April 1990iThe Advocate 23 him at the time. For a discussion of search jury does not protect a defendant from a than the defendant. Such evidence may be and seizure issues in Reneer, see Plain prosecutor’s racially motivated exercise used to impeach the defendant, Walder v. View. of peremptory challenges. Thus, a white United States, 347 U.S. 62, 74 S.Ct. 354, defendant from whose jury blacks were 62 L.Ed.2d 641954 on the theory that KRS 209.990. ABUSE OF AN struck has no Sixth Amendment objec otherwise the exclusionaryrule would be- ADULT tion. According to the majority, the Sixth come a license forperjury. However, that Moms v. Commonwealth Amendment fair cross-section require consideration is not applicable to wit 37 K.L.S. 3 at ment is satisfied when the pool from nesses other than the defendant. Such February 23, 1 whichthejury is to be selected represents witnesses’ motives to lie are less clear a faircross-section. than are the defendant’s and they may be In this case, the Court reversed the more daunted by the threat of perjury defendant’s conviction of abuse of an Although a white defendant cannot chal charges than the defendant. Moreover, a adult as defmed in KRS 209.990. The lenge the prosecution’s use of its contrary rule "likely would chill some instructions to the jury erroneously per peremptories under the Sixth Amend defendants from presenting their best mitted them to convict Morris if they ment, a majority of the Court suggested defense - or sometimes any defense at all found that the defendant had, inter alia, that such a defendant could assert a claim - through the testimony of others." Jus "permitted or suffered [the victim] to be under the Fourteenth Amendment Equal tices Kennedy, O’Connor, Scalia, and subjected to torture, cruel confmement Protection Clause, despite language in Chief Justice Rehnquist dissented. and punishment." While first degree Batson v.Kentucky, 476 U.S.79, 106 S.Ct. criminal abuse,asset outinKRS 508.100, 1712, 90 L.Ed.2d 69 1986 that would may be committed by one having custody require racial identity between the defen LINDA WEST of a person allowing another to abuse that dant and thejurors struck. As stated in the Assistant Public Advocate person "[t]he offense of abuse of an adult concurring opinion by Justice Kennedy, Appellate Branch by acaretaker simply does not emcompass "[T]he availability of a Fourteenth Frankfort, KY a situation in which the caretaker permits, Amendment Claim by a defendant not of rather than instigates, a third person to the same race as the excluded juror is cause injury." foreclosed neither by today’s decision, nor by Batson. Justices Marshall, Bren To experienced lawyers itiscommonplace nan, Blackmun, and Stephens dissented. that the outcomeofalawsuit-and hence the vindication of legal rights-depends more UNITED STATES IMPEACHMENT USE OF often on how the fact-finder appraises the ILLEGALLY facts than on a disputed construction of a SUPREME COURT SEIZED EVIDENCE statute or interpretation of a line of prece dents. Thus the procedures by which the James v. Illinois facts of the case are determined assume an 46 CrL 2051 importance fully as great as the validity of January 10, 1990 the substantive rule law to applied. C JURIES - BATSON of be Holland v. Illinois And the more important the rights atstake the more important must be the procedural 46 CrL 2067 safeguards surrounding those rights. January 22, 1990 The Court held in James that evidence SPEISER V. RANDALL, 78 S.CJ 1332 In this case the Court held that the Sixth seized during an illegal searchmay notbe 1958 Amendment’s guarantee of an impartial used to impeach defense witnesses other

State leaders to get pay increases Associated Preag of Appeals determined that the framers of er Price Index since 1984. FRANKFO1T - Gov. Wallace Wilkinson the Constitution in 1891 really meant $12,000 Thus. Wilkinson will receive a salary this will get a $4,918 raise this year. The state’s a other seven constitutional officers win get year plus annual increases of the Consum- year of $74,649. pay increases of $4,199. er Price Index sinch 1949 - what has come The calculations are made by the Depart. to be known as the "rubber dollar." And they can all thank a nearly 30-year- ment of Local Government and approved by old interpretation of the Kentucky Cotistitu. As a result, $12,000 in 1949 has grown to the attorney general’s office, which did so In tion that created the "rubber dollar." $63,462 in 1990 for the seven constitutional an opinion released Tuesday. Section 246 of the Constitution sets a officers except the governor. Their salaries A similar interpretation of the law was maximum annual salary for the constitution- in 1989 were $59,263, including a required 2 applied to local officials’ salaries, such as al officers at $12,000. Voters have defeated percent salary increase set in the budget. county judge-executives, clerks, jailers, sher numerous attempts to increase that amount Another switch in the law requires the iffs, magistrates and coroners and mayors by constitutional amendment, governor’s salary to be determined by multi- everywhere but Louisville.

The Cincinnati Post, February 28,1990. Reprinted by permission.

April i99OIThe Advocate 24 THE DEATH PENALTY

Neal Walker

"To kill for murder is an immeasurably Reed, 631 S.W.2d 633 Ky. 1982. to continue after the guilty verdict." The greaterevil than the crime itselL" Paducah Sun, November12, 1989, p. 1. Reed presented no evidence in mitigation Fyodor Dostoevsky: on his client’s behalf, even though Smith Unfortunately, Robert Smith’s case is not The Idiot 1869 was diagnosed by a state psychiatrist in an aberration in Ky. A number of his 1979 as functioning "within the border ceilmates on death row were defended at line range of mental retardation." Mental trial by lawyers with similar difficulties. We have witnessed a series of momentous retardation is, of course, a statutory Of the 28 inmates on death row at the death penalty developments as weturn the mitigating circumstance in Ky. KRS beginning of 1989, 7 had been defended corner on a new decade. As usual, the 532.0252b7. The U.S. Supreme at trial by attorneys who have since been news ranges fromthe very bad to the very Court has held that mental retardation is, disbarred or who have resignedrather than good. We look initially at the first Ky. as a matter of constitutional law, mitigat face disbarment. Walker, The Death death sentenceof thenew decade and then ing. "It is clearthat mental retardation has Penalty, The Advocate, June 1989, at 16, at thenew G.A.O. studyonracedisparities long been regarded as a factor that many Col. 2. One of these lawyers is currently in death sentencing. We will also look at diminish an individual’s culpability for a incarcerated in a federal prison. Still Ky. legislative developments and briefly criminal act."Penry v. Lynaugh, 109 S.Ct. another condemned inmate was defended at new Supreme Court death penalty 2934, 2956 1989. "[T]he sentencing by a court appointed attorney who had decisions. body must be allowed to consider mental beensuccessfully sued for malpractice. retardation as a mitigating circumstance in making the individualized deterinina DAVID SOMMERS tion whether death is the appropriate LIFE AND DEATH IN punishment in a given case." 109 S.Ct. at Smith’sdeathsentence, the first inl4 years 2957. Robert Smith’s jury, though, was in Paducah, stands in stark contrast to the PADUCAH DECADE’S FIRST unableto consider such evidencesince his resultin anotherrecentcapital prosecution DEATH SENTENCE RAISES lawyer neglected to present it. in the same county. Smith’s sentence was QUESTIONS ABOUT imposed only a few weeks after David ADEQUACY OF In fact, it appears that Smith himself was Sommers was sentenced to a prison term REPRESENTATION not in court during the penalty phase. Ac for his convictions for 2 counts of capital cording to a newspaper account, "Smith murder and first degree arson. went back to jail before the penalty phase began. Reed said Smith was tooemotional A Paducah newspaper noted similarities ROBERT ALLEN SMiTH

OnJan. 24 Robert AllenSmith became the first person sentenced to death in Ky. this Kentucky Death Notes decade. Smith was convicted in the Mc Cracken Circuit Court of murder andfirst degree arson arising out of the death of Number of people executed since statehood 438 Pamela Wren. He was defended by as Number of people executed this century 162 signed counsel L. M. Tipton Reed, Jr. Number of people who applied for the position of executioner in 1984 150 Number of people now on death row 26 Number of VietnamVeterans on death row I LAWLICENSE SUSPENDED Number of women on death row I Number ofjuveniles on death row I In 1981, Reed’slaw licensewas suspended Number of inmates who have committed suicide 1 by the Ky. Supreme Court for, among Number whose trial lawyers have been disbarred or had their other things, "willfully neglecting matters license suspended 6 entrusted to him." Ky. Bar Ass’n v. Reed, Number of these lawyers who are now incarcerated 1 623 S.W.2d 228,232 Ky. 1981. Less than Number who can afford private counsel on appeal 0 Numbersentenced to death for killing a black person 0 a yearlater, the suspension was extended Percentage of deathrow inmates who are black 20% for 2 moreyears for a "continuing pattern Percentage of Kentucky population that is black 7% of misconduct," which included, once Numberof black prisoners who were sentenced by all whitejuries 1 again, "gross neglect of a legal matter Number of persons sentenced to death in Kentucky and entrusted to respondent." Ky. BarAss’ n v. laterproven innocent

April 1990/The Advocate 25 between the two cases. "The trials were KORDENBROCK OPINION to study capital sentencing procedures to similar in that both involved females WiTHDRAWN determine ifeither the race ofvictim or the killed during the commission of first de IT AIN’T OVER ‘IlL iT’S OVER defendant influences the likelihood that gree arson - a specific circumstance which defendants will be sentenced to death. To permits seeking the death penalty. On February 20, 1990, the Sixth Circuit fulfill its mandate, the GAO undertook an Another similarity: Wren may have been Court of Appeals granted Paul Korden evaluation synthesis- a review and criti raped and the girls had accused Sommers brock’s petition for rehearing and with que of existing research. The analysts of molesting them." The Paducah Sun, drew the opinion previously issued in the identified and collected all potentially November12, 1989, p. 2. case which had upheld the district court’s relevantstudies done at national, local and denial of his federal habeas petition. See statelevels.A total of53 suchstudies were identified, but only 28 were analyzed, But Sommers avoided a fate similar to Kordenbrock v. Scroggy, 889 F.2d 696th Smith’s after his attorney, Mike Williams Cir. 1989. The casewill now be heard by since the remainder were either duplica tive or did not convinced the prosecutor that seeking the the full court sitting en banc. contain empirical data. death penalty would result in a needless wasteofjudicial resources. Sommers was Kordenbrock’s case is the first death The remaining studies were then analyzed convicted and sentenced to a term of penalty case to reach the 6th Circuit not and found to be "of sufficient quality and years. Mike Williams, ofthe DPA’sMajor only from Ky., but from any of the death quantity to warrant the evaluation syn Litigation Section, has substantial ex penalty jurisdictions in the region that the thesis approach." GAO at 3. Two of these perience in litigating capital cases. circuit embraces. It is hard not to be en studies were conducted by researchers thusiastic about the rehearing order, even from the Univ. of Louisville, See Keil, GEORGIA SUPREME COURT while recognizing that the en banc Court Thomas and Gennaro Vito. "Race andthe RECOGNIZES DEATH CASES may ultimately uphold Kordenbrock’s DeathPenalty in KentuckyMurder Trials: REQUIRE SPECIAL SKILLS sentence. One of the reasons the panel An Analysis of Post-Gregg Outcomes." opinion was so disheartening was its ex Forthcoming in Justice Quarterly; Keil, In Amadeo v. State, 384 S.E.2d 181 Ga. tremely parsimonious reading of Ake v. Thomas and Gennaro Vito, "Race, 1989, the Ga. Supreme Court reversed a Oklahoma, 105 S.Ct. 1087 1985. Homicide Severity, andApplicationofthe trial court’s order refusing to appoint two Death Penalty: A Consideration of the Barnett Scale." Criminology, Vol. 23, No. lawyers who had previously represented Ake, of course, holds that due process Amadeo and instead appointing local requires that where his "mentalcondition 3, pp. 511-535 1989. counsel to represent the defendant at his is seriously in question," an indigent capi capital retrial. tal defendant must be provided access to The GAO report concludes that the race "a competent psychiatrist who will con of the victim is a strong predictor of the LawyersBrightand Warner, specialists in duct an appropriate examination and as outcome of a capital case. "In 82 % of the defending death penalty cases, had repre sistin evaluation, preparation, andpresen studies, race of victim was found to in sented Amadeo for nearly a decade as he tation of the defense." 105 S.Ct. 1095, fluence the likelihood of being charged challenged his death sentence in the 1097. The panel opinion, though, held that with capitalmurder or receiving the death federalcourts. Ultimately, they convinced Ake’s guarantee of psychiatric assistance penalty, i.e., those who murdered whites the U.S. Supreme Court that his death extended only to cases where an insanity were found to be more likely to be sen sentence was unconstitutional. See defense was pled. 887 F.2d at 76. Further, tenced to death than those whomurdered Amadeo v. Zant, 108 S.Ct. 1771 1988. the opinion held that Ake’s guarantee of blacks." GAO, p.5-6. "This fmding was psychiatric assistance did not embrace a remarkably consistent across data sets, to investigate anddevelop states, data collection methods, and remand for retrial, though, the trial right mitigating Upon evidence for use at the sentencing phase. analytic techniques." Id. court "appointed 2 well-respected local Id. Finally, the Court held that Ake’s com lawyers, neither of whom had previously mand of psychiatric assistance would Even after controlling for legallyrelevant tried a death penalty case." 384 S.E.2d at have been satisfied by utilizing the ser 181. After conferring with attorneys variables, such as the offender’s record, vices at KCPC. 889 F.2d at 76. Now all number of aggravating circumstances, Bright and Warner, local counsel sought revisited these issues will be by the en etc., the racial variables remained. "The permission to withdraw while previous banc over over! counsel sought appointment. The trial Court. It ain’t ‘till it’s analyses show that after controlling statis court denied both motions and the Ga. tically for legally relevant variables and FEDERAL STUDY CONFIRMS other factors thought to influence death Sup.Ct. reversed and remanded for ap RACIAL DISPARITIES IN DEATH pointment of attorneys Bright & Warner. penalty sentencing e.g. region, jurisdic SENTENCING tion differences remain in the likelihood of receiving the death penalty based on In reversing, the Georgia Court relied On February 27, 1990 the General Ac race of victim." GAO, p.6. heavily on the ABA Guidelines For the counting Office GAO released a study Appointment and Performance ofCounsel finding "a pattern of evidence indicating in Death Penally Cases, which mandate racial disparities in the charging, sentenc Over half of the studies analyzed by the that prior capital experience is a prereq ing and imposition of the death penalty GAO found that race of the defendant uisite to appointment in a death case. Sig after the Furman decision." GAO, Gen. influenced the likelihood of being charged nificantly, the Court also emphatically Gov. Div., Death Penally Sentencing,p.5 with a capital crime or receiving the death recognized that litigating a death penalty B-236876, Feb. 26, 1990. The GAO penalty, althoughthe race ofthedefendant case calls for extraordinary skills not re study was prepared in response to a is not so powerful at predicting a death quired in a non-capital prosecution. "[11t provision added to the 1988 Anti-Drug sentence as is the race of the victim. "To has become apparent that specialskills are Abuse Act which provides for the death summarize, the synthesis supports a necessary to assure adequate repre penalty for certain drug related killings. strong race of victim influence."GAOp.7. sentation of defendants in death penalty cases." 384 S.E.2d 182. The federal legislation required the GAO

April l99OiThe Advocate 26 THE KENTUCKY RACE STUDIES petitioner in a capital case, therefore, may With Butler v. McKellar and Saffle v. take testimony from a trial juror to show Parks, though, the Court has virtually The Ky. studies cited in the GAO publica that the juror possesses racial biases that, sealed off the federal courts to state tion document the powerful role that race under the 8th Amendment standard, prisoners under the guise ofretroactivity. plays in the administration of the death created an ‘unacceptable risk’ that race An exhaustive treatment of the implica penalty in this state. "Our equa affected the death penalty decision." tions of these decisions for federal prac tions...show that Ky. prosecutors regard Dobbs, 720 F.Supp. at 1573, titioners will appear in the newsletter of the murder of a white by a black as an the Ky. Capital Resource Center. A few especially heinous infraction of the law, words are in order here, though. independent the objective seriousness The only conflictemerges with the Equal of Protection claim, where "Dobbs must go ofthe homicide."Keil and Vito, Criminol further and show that the sentencing In both cases, slim majorities 5-4 held ogy, supra, at 527. "Blacks who kill decision was actually motivated by racial that condemnedinmates were notentitled whites are more likely to be charged with prejudice." 720 F.Supp. at 1573. "A con to relief since the claims they pressed a capital crime than are others i.e., blacks whites whites, flict emerges between these two rules: would have established a "new rule" of who kill blacks, who kill whereas the McClesky standard requires a federal constitutional law. Last tenn, in whites blacks." The and who kill Id im petitioner to show actual bias in the sen Teague v.Lane, 109 S.Ct. 10601989, the pact of race also shows up at the other end tencing decision, Rule 606b precludes Court radically restructured the doctrine of the process - the sentencing stage. "Ky. who inquiry into thedecision making process." of retroactivity in holding that a habeas juries are...more likely to sendblacks Id. petitioner may not even have his claim kill whites to death row." id. at 523. The heard unless, as a threshold matter, the study concludes with a damning indict determines favorable ment of the impact of race on death sen The Courtresolves theconflict infavorof court that a ruling Dobbs, holding that he had right to would notestablish a new rule ofconstitu tencing practices in this state."InKy., race a tional law. With Butler and Saffle, the is inextricably bound up with the way in depose thejurors to explore whetheror not racial bias contributed to their decision to Courtgives such an expansive interpreta which the capital sentencing process tion of what constitutes a "new rule" that, sentence him to death. "The balance be operates." Id. at 528. as Justice Brennan observes in his dissent tween the defendant’s rights and in Butler, "the Court strips stateprisoners society’s interest in protecting the jury PROVING RACIAL BIAS ofvirtually any meaningfulfederal review system would not be met by enforcing IN COURT of the constitutionality of their incarcera Rule 606b." 720 F.Supp. at 1574. tion." 46 CrL at 2168 emphasis in A federal district court in Georgia has original. ruled that a black habeas petitioner who U. S. SUPREME COURT CASES claims that race was a factor in his death JURY UNANIMiTY ON sentence for killing a white person has a The first batch of death penalty opinions MITIGATION right to depose jurors to ascertain if, in during the 1989 term show a sharply fact, racial considerations operated during divided court which continues to insist UNCONSTITUTIONAL the deliberations. that states remove any barriers to the jury’s ability to consider mitigating evid In McCoy v. North Carolina, supra, the ence, Butler v. McCoy, 46 CrL 2164, Court addressed the constitutionality of In Dobbs v. ZanI, 720 F.Supp. 1566 N.D. 3/5,90 while also insisting that the sen the unanimity requirement inN. C.’s capi Ga. 1989, the Court acknowledged that tencing decision be a rather clinical tal punishment scheme. That requirement Fed.R. Evid. 606b ordinarily forbids the "moral" one, rather than being based on a prevents the jury from considering any use of jurors’ post-decision statements "sympathetic" view of the defendant’s mitigating circumstance which the jury about mental processes in an effort to im mitigation. Saffle v. Parks, 46 CrL 2193 doesnotunanimously find. The court held peach their verdict. However, the Court 6-3 that, under Mills v. Maryland, 486 3/5/90. The darker side of the Court also acknowledged that black prisoners emerges in two opinions upholding sen U.S. 367 1988, this unanimity require who have been sentenced to death for ment violates theconstitution by prevent killing whites who their tencing statutes which amount to little and challenge more than formulas for processing ag ing the sentencer from considering all death sentences on the grounds of racial gravation and mitigation which mandate mitigatingevidence. The relevance of this bias must show that "thejurors acted with opinion to Ky. practice will be addressed a sentence of death when the formula discriminatory purpose when they decid in the next death penalty column. yields a certain result. Blystone v. Pen ed to impose the death penalty" in order nsylvania, 46 CrL 2147 2128,90; Boyde to establish an equal protectionviolation. SENTENCING v. California, 46 CrL 21723/5/90. Final MANDATORY Dobbs, 720 F.Supp. at 1572, citing Mc with the grace of a Guatemalan death FORMULAS Clesky v. Kemp, 107 S.Ct. 1756, 1766 ly, squad, the Court has just about succeeded 1987. Similarly, to establish an 8th in burying the great writ of habeas corpus In Boyde and Blystone, the Court upheld Amendment violation, Dobbs would have in capital andnon-capital cases alike. But 5-4 California and Pennsylvania death to show that "the jurors possessed racial ler v. McKellar, 46 CrL 2164 3/5/90. sentencing statutes which provide that biases that created an ‘unacceptable risk’ death must be imposed if the statutory that race affected the sentencing decis calculus of processing mitigation and ag ion." Dobbs, 720 F.Supp. at 1572. See FEDERAL HABEAS CORPUS 1867-1990 gravation yields a certain result. In Turner v. Murray, 106 S.Ct. 1683, 1686, California, a jury must impose death if 1688, n. 7 1986. The writ of habeas corpus was the most aggravation outweighs mitigation. celebrated writ in the English law. Similarly, in Pennsylvania, death is man With respect to the 8th Amendment issue, Originally available only to federal datory if the jury finds one aggravating the Court equates racial bias with "mental prisoners, Congress extended its protec circumstance and no mitigating cir bias," andnotes that Rule 606b doesnot tions to federal prisoners over 100 years cumstance. The Court upheld both of forbid juror testimony about any mental these statutes against challenges that they ago. Judiciary Act of February 5, 1867, 14 amounted to mandatory death sentencing bias unrelated to the specific issues the Stat. 385-86. juror was called on to decide. "A habeas schemes as condemned in Woodson v.

April 1990/The Advocate 27 North Carolina, 428 U.S. 2801976. Lawyers Shun Appointed Cases These opinions also hold that a jury does nothave to weigh aggravation. Indeed, the Court reduces the function of aggravating circumstances to distinguishing capital from non-capital murder. "The presence of aggravating circumstances serves the purpose of limiting the class of death eligible defendants, and the 8th Amend ment does not require that these aggravat ing circumstances be further refined or weighed by ajury."Blystone, 46 CrL 2147.

MITIGATION: EMOTIONAL VS MORALRESPONSES Many Ohio and Kentucky counties don’t Kenton Co. Bar Assn. "Please help! pay enough to cover office overhead for Desperate!" his letter began. The Prob court-appointed defense lawyers in long lem? The old rate of $15 an hour in court cases. Consequendy, few lawyers arewill and$9 an hour for out-of-court work. Wil ing to take them. son went to trial with 2 court-appointed In Saffle v. Parks, supra, the Court found lawyers who served without pay. One had no fault with a jury charge directing the Last February, Michael Williams barely never tried a death penalty case; the other jury to avoid any influence of sympathy. made federal minimum wage as a Camp had never tried any felony case. Wilson The Court rejected the argumentthat such bell Co. public defenderwhen he defended was convicted of kidnapping, raping, rob an "anti-sympathy" instruction violates Gregory Combs. Combs set theapartment bing and killing Deborah Pooley andsen Lockett inasmuch as jurors who react house fire that killed 5 people in Dayton, tenced to death. sympathetically to mitigating evidence Ky. He was charged with capital murder, could interpret the instruction as barring he was convicted of manslaughter. Wil Ohio’s Butler Co. is having similar from considering that evidence al liams said he was paid an extra$2,500 to problems: Both court-appointed attorneys them handle the case by the public defender’s for Patrick Henry Goins tried to quit, together. But the Court holds that emotion office. He put in about 725 hours. saying they each had invested more time should play no role in the process, which than the$2,500 maximum justified. it describes as a moral one. "The objec On the other hand, there’s no shortage of tives of fairness and accuracy are more lawyers in Hamilton Co. who are willing Forcing them to continue would violate likely to be threatened than promoted by toacceptcourt appointments at$30 an hour their rights and jeopardize Goins’ right to a rule allowing the sentence to turn noton to defend murder suspects. The difference a fair trial, they argued. Goins pleaded whether the defendant, in the eyes of the is the maximum that counties pay each guilty to killing Lucille Susong and her community, is morally deserving of the lawyer in an aggravated mustier case. But son, James. before an appellate court death sentence, but on whether the defen lerCo. hasa$2,SOOcap, thelowestinOhio, resolved thepayment issues. dant can strike an emotional chord in a regardless of how many hours a lawyer works. All 6 local lawyerscertified to serveas lead juror." 46 CrL at 2196. counsel in a death penalty case refused to Butin Hamilton Co.,judges can ignorethe represent Kenneth J. Lovett, accused of TO BE CONTINUED... $6,000 limit and authorize payments for shooting Jena Mayo. A staffattorney from every hour worked by up to 2 defense the Ohio Public Defender’s Office is han lawyers assigned to each case. Dale G. dling Lovett’s case. Schmidt, a veteran trial lawyer, estimated that defendants who hire their own attor Robert Carran, coordinator of the public These opinions arenot fully analyzedhere neys end up paying $150 to $250 an hour. defenders office in Kenton, Boone and as they were handed down as we go to Schmidt said overhead- rent, utilities, Gallatin Co., said, "Lawyers have been press. All S opinions will be discussed in secretaries, copying machines, insurance - very good about taking our cases, but they detail in the next issue of The Advocate, eats up more than 1/3 of everything a can’t keep taking losses of thousands of lawyer earns. dollars." KENTUCKY SENATE VOTES In a lean operation, those expenses are $20 Finding defense lawyers is more than a UNANIMOUSLY TO BAR to $25 an hour, but often they’re twice that. scheduling problem; criminal defendants EXECUTION OF RETARDED Even so, few counties paymore than $30 have a constitutional right to adequate OFFENDERS an hour for lawyers who take court ap counseL In Ohio, where lawyers must be pointments. certifiedby the SupremeCourt before they can takecapitalpunishment cases, the bur The problem has surfaced in recent high den falls on overwhelmed state public proffle Kenton Co. cases: W. RobertLotz defenders when county judges can’t find On February 22, the Ky. Senate voted accepted a court appointment to defend private defense lawyers. 36-0 to bar the execution of mentally Michael Funk, accused of killing 7-year- retarded offenders. The bill nowmoves to old Jenny Sue lies. He was to be paid at the In Ky., no certification exists, and in some the House. If the House also approves the new,higher rateof $25 an hourincourt and cases, courts acceptinexperienced defense measure, Ky. will become only the third $15 an hour for out-of-court work. But lawyers. So it’s not uncommon for death- state to prohibit such executions. Edwin Kagin agreed to represent Funk row inmates in both states to appeal their privately for $1. Ronald Rigg agreed to convictions, saying they were denied ade serve as his co-counsel for even less. quate counsel. NEAL WALKER Assistant Public Advocate When Gregory Wilson’s first court-ap Cincinnati Enquirer, Feb. 11,1990. Chief, Major Litigation Section pointed lawyers quit, Circuit Judge Ray Reprinted by Permission. Franlcfort, KY mond E. Lape appealed to members of the

April l99OfTheAdvocate 28 GUILTY UNTIL PROVEN INNOCENT DUI PRESUMPTIONS

Rob Riley

INTRODUCTION presumption by the jury to prove a fact 1979, the United States Supreme Court [under the influence] that "otherwise struck down mandatory presumptions as would require expert testimony," 483 being inconsistent with due process. The If you stopped the average citizen on the S.W. at 128. presumption at issue was ajury instruction street and asked them to state one rule of stating "the law presumes that a person law, the most likely answer would be that proven intends the ordinary consequences of his you are innocent until guilty. The The Court carefully reviewed the history voluntary acts." 442 U.S. at 513. The Supreme Court left room for little argu of presumptions and concluded that to Supreme Court found the presumption ment when, in In Re Winship, 397 U.S. instruct the jury regarding a presumption constitutionally infirm on 2 separate 358 1958, they announced that: would, as it had consistently held, invade theories: 1 such a presumption shifts the theprovince of thejury andwasthus error. burden of persuasion as previously con Lest there remain anydoubt about the In establishing the admonition as ap demned inMulany v. Wilbur, 421 U.S. 684 constitutional stature of the propriate, however, the Court shed no 1975, and 2 the presumption was con reasonable-doubt standard, we ex light into its reasoning. In subsequent clusive in violation of Morissette v. plicitly hold that he Due Process decisions, however, it has become clear United States, 342 U.S. 246 1952. Ob Clause protects the accused against that the presumptions at issue are to be viously, the second prong of the Sand- conviction except upon proof beyond viewed not as "rules of law given by the strom holding is notviolated by the Mar areasonable doubt of everyfact neces Court but rather evidence," Wells v. Com cum procedure because KRS 189.5204 saryto constitute the crime withwhich monwealth, 561 S.W.2d 85 Ky.App. allows the: he is charged. 1978, and further were "devised for 397 U.S. at 364. prosecutorial convenience."Id. Addition Introduction of any other competent ally, the DUT presumptions remain "the evidence bearing on the question of only presumption of fact, essential to es The Justices would no doubt be surprised whether the defendant was under the to discover that in Kentucky their em tablish guilt of a crime, of which the trial influence.... court is permitted to inform the jury." Id. at 274. phatic holding would protect the most Overstreet v. Commonwealth, 522 loathsome murderer, the most wily of S.W.2d thieves, the most repetitive 178 Ky.App. 1975. In so doing, of con man, the Overstreet court refused to expand the However, this very right to rebut thus but would offer only hollow promises for use of the presumptions in a granted conclusively shifts the burden in the average citizen stopped by a police DUI/Manslaughter case, stating that the violation of the first prong of the officer after having a few beers with benefit "cannot reasonably or fairly be Sandstrom holding. In effect, the jury is friends. extended to providethe sameconvenience admonished to presume guilt unless the for the prosecution in cases of a more defendant can persuade the jury as to in BACKGROUND ON serious character." 522 S.W.2d at 179. As nocence. Although KRS 500.070 en PRESUMPTIONS IN KY such, postMarcum, 2 things are clear: 1 visions placing the burden of going for the use of presumptions in a DUT case ward on the defendant in certain narrowly defined situations, it does not, nor could it Pursuant to KRS 189.520, the percentage stand alone in Kentucky practice, and 2 Kentucky courts, while acknowledging constitutionally, countenance the whole of alcohol in a defendant’s blood gives sale burden that riseto various presumptions regarding the basic unfairness, have not found shifting occurs once the his Marcum admonition is given. or her sobriety. The most offensiveis KRS reason to change theprocedure. 189.5203c which creates a presump CHALLENGING MARCUM tion that a driver is under the influence In Francis v. Franklin, 471 U.S. 307 when his or her blood alcohol level is a 1985, the Court addressed the issue of a .10% or greater. The utilization of this While the Kentucky appellate courts ap presumption the defendant could rebui presumption stems from Marcum v. Com parently remain content with this policy, The Court once again emphatically held: monwealth, 483 S.W.2d 122 Ky.App. a line of cases from the United State Marcum, while holding 1972. that it Supreme Court suggestthat the useof the This bedrock ‘axiomatic and elemen would be reversible error to actually in presumptions causes greaterconstitution tary’ [constitutional] principle cite struct thejury as to the presumption, es al problems than those recognized and omittedprohibits thestate from using tablished admonishing the jury as the ap tolerated by the Marcum line of cases. propriate method for conveying the evidentiary presumptions in a jury charge that have theeffect ofrelieving presumption to the jury. The Marcum court clearly envisioned the use of the the state of its burden of persuasion In Sandstrom v. Montana, 442 U.S. 510 beyond a reasonable doubt of every

April 1990/The Advocate 29 essential element of a crime. 471 U.S. tion, 442 U.S. at 516, the use of the preventthe implementation offederal at 313. presumption is invalid if a juror "may constitutional rights. have interpreted the Judge’s instructions 80 LE.2d at 346. as constituting...a conclusive presump The Court went on to note that "a man tion.... 442 U.S. at 524. emphasis added. datory rebuttable presumption is perhaps Obviously, it is of little solace to the less onerous from the defendant’s defendant that the jury is merely told by perspective, but is no less unconstitution The logic of the district court’s holding the judge to presume guilt as opposed aL 471 U.S. at 317. was further diminished by Hayden v. seeing it in writing. Likewise, the Commonwealth, 776 S.W.2d 956 Supreme Courthas recognizedthe distinc Ky.App. 1989. In Hayden, the Court tion notone ofconstitutional impact. This Just last term, the United States Supreme madeitclear that impaireddriving wasnot is especially true in light of even the Ken Court revisited the issue of the use of tucky courts previously discussedhesitan presumptions in a criminal trial. Carella an element of the offense as had beer suggested by Cruse v. Commonwealth. cy about the rule. v. Calfornia, 491 U.S. ..., 105 L.EcL2d As such, the only element to be proven is 218; 109 S.Ct. 2419 1989. The presump "under the influence" which according to CONCLUSION tions at issue in Carella involved the im KRS l89.5203c shall be presumed puting of criminal intent from the fact of return rented property merely from the offering of a test reading The continued validity of this isolated rule failing to within a of .10 or greater. Adding given statutory time period. Without dis to the lack ofany of procedure specifically designed to substantive requirements beyond themere reduce the prosecution’s sent, the Supreme Court struck down the existence of the number,3 it is logically burden of proof presumption andreversed the convictions. is suspect. The proper useof the presump inconsistent to find that a reasonablejuror In one simple paragraph, the Court dis might tions contained in KRS 189.520 are the not find the presumption con same as other presumptions to be utilized tilled the constitutional problems with the clusive. Marcwn procedure: by theCourt ingranting a directedverdict. See Milward, Kentucky Criminal Prac The Due Process Clause of the Four tice, Section 47.07 2d Ed. 1984. The The fmal constitutional development is state should prove element teenth Amendment denies States the one that destroys the artificial distinction each of the power to deprive the accused ofliberty the Marcum court sought to draw between offense beyond a reasonable doubt by competent evidence. Only this way can unless the prosecution proves beyond admonishing and instructing. In James v. in a reasonable doubt every element of Kentucky, 466 U.S. 15 1984, the United each citizen accused be provided due process of law. the charged offense. Cite omitted. States Supreme Court held that: Juiy instructions relieving States of this burden violate a defendant’s due Kentucky distinction between ad ROBERT Cite omitted. Such A. RILEY process rights. monition andinstruction isnot the sort Assistant Public Advocate directions subvert the presumption of of firmly established and regularly LaGrangeTrial Office innocence accorded to accused per followed state practice that can Oldham/HenryiTrimble Counties sons, and also invade the truth-fmding juries 300 North First Street task assigned solely to in LaGrange, Kentucky 40031 criminal cases. Ruling on Official to be Appealed 502 222-7712 105 L.Ed.2d at 221. The state attorney general’s office is seek FOOTNOTES Such a holding leaves little doubt asto the ing to overturn dismissal of drunken driv constitutionality oftheMarcum ing and speeding charges against Boyd ‘Morgan v. Shirley, Civil Action C-88-0049- continued County Attorney Jerry Vincent. procedure which is specifically designed B6M, rendered 7-19-89. to ease the prosecution’s burden. See Johnson Circuit Judge StephenFrazier dis 2712 S.W.2d 356 Ky.App. 1986. Wells, supra, and Overstreet, supra. missed thecharges against Vincent, citing Nonetheless, in a recent federal habeas a procedural error by theattorney general’s corpus action,’the U.S. District Court for office. See Owens v. Commonwealth, 487 S.W.2d the Western District upheld the Marcum 897 Ky.App. 1972. "As aminimum this proof procedure. The Court reasoned that, The office asked Frazier to vacate his must show that the operator was properly 189.5203c ruling and also will ask thejudge to recon trainedand certified tooperate themachine and despite the fact that KRS that the machine was in proper working order states that when there is: sider his decision, according to Deputy Attorney General Brent Caldwell. An ap and that the testwas administered according to peal calls for the state Court of Appeals to standard operating procedures." .10 percent 10% or more by weight in review the ruling. such blood, it shall be presumed that the defendant was under the in Frazier’s ruling marked the second dis fluence.... missal ofcharges against Vincent because Id. at 273 emphasis added, of procedural errors by the attorney general’s office. The statute, whenread as a whole, includ Vincent was arrested in July in Ashland. ing the rebuttal provisions, created onlya He refused to take a breath analysis test, permissible inference. The Court’s saying he was afraid the arresting officer decision, while citing the Francisdistinc would manipulate the test because he and tion between rebuttable and nonrebut the officerhad a long-standing dispute. table, totally ignores the test for man datory versus pennissive that was estab The Courier-Journal, February 6, 1990. lished in Sandstrom. Regardless of how the state courts interpreted the presump

April l99OtThe Advocate 30 DRUNK-DRIVING CASE AGAINST BOYD OFFICIAL DROPPED AGAIN

Drunken-driving and speeding charges Moreover, thesubsequent dismissalshave Reading from Frazier’s ruling, Linda against Boyd County Attorney Jerry Vin prompted harsh questions about the com Craft, Frazier’s court administrator, said cent were dismissed - the second time petency of the attorney general’s office the trial court’s calendar notation con charges against Vincent have been and the possibility that Vincent received stituted a ruling from the judge. dropped because of procedural errors by preferential treatment. Vincent also was "Hundreds of cases are determined every the state attorney general’s office. co-chairman in Boyd County for Attorney day in Kentucky by the various district General Fred Cowan’s electioncampaign. courts," the ruling states. "These decisions are evidenced not by formal The handling of the case prompted harsh written judgment, but by calendar nota criticism of the state attorney general’s Sandi LeMaster, vice president of the tion signed by the court.,.. This procedure office by Vincent and his attorney, who Boyd County Chapterof Mothers Against has beenfollowed since the implementa say the casewas incompetently handled DrunkDriving, which has beenoutspoken tion of the district court system." and politically motivated. about the case, said she is shocked and frustrated by Vincent’s case. Mussetter discounted any talk that Vin The ruling by Johnson Circuit Judge cent received preferential treatment, Stephen Frazier says that the attorney "I don’t know which is worse," LeMaster citing the scrutiny the case has received general’s office was late in filing an ap said, "to play favoritism or to havesome because he is a public official. peal on the drunken-driving and speeding one employed in the attorney general’s charges against Vincent, who has been office that is totally incompetent." Boyd County attorney for 8 years. Of Mackin, who tried the case, Vincent said: "lie’s just incompetent. And the But Caldwell said the attorney general’s things that Mr. Cowan has saidin response The chargesagainst Vincentwere initially office complied with the law in handling to public pressure...I think he’s trying to dropped in Boyd District Court inNovem the case. And he contendedthat there is no make political hay out of a case." ber when a district judge from Jefferson validity to charges of preferential treat County ruled that Jeff Mackin, of the at ment. torney general’s office, failed to state the Cowan has said he intends to run for charges and evidence against Vincent in governor in 1991. the prosecution’s opening argument. "We feel like we’ve done what was recommended under the law," Caldwell said. "At this point, we have not had a But Vincent maintains that the factsof the Localjudges and prosecutors asked to be court that agreed with that." case have been overlooked - that his excused from the case because of their arrest was the result of a long-standing working relationships with Vincent. dispute he has had withan Ashland Police Regarding the first dismissal, Caidwell officer. said that the prosecutor’s opening argu The attorney general’s office, whichcon ment need not lay out all the facts and tends the case should not have been dis evidence to be used in the case and that The Ashland police report said an officer missed, will, within the next 5 days, ask Mackin gave enough information in his saw Vincent’s car swerving across the the state Court of Appeals to review it, opening remarks. center line and speeding. When stopped, Deputy Attorney General Brent Caldwell he refused to take the breathalyzer test, said. saying he feared Officer Tim Wallin District Judge Donald Eckerie of Jeffer would manipulate the results. son County disagreed, and his decision Vincent was arrested last July in Ashland. was appealed by the attorney general. He refused to take a breathalyzer test, Vincent, whois a neighbor of Wallin’s in saying he was afraid the arresting officer Ashland, has filed two criminal com would manipulate the test because he and The attorney general’s office, however, plaints alleging Wallin harbors vicious the officer had had a long-standing dis waited to file its appeal until receiving a dogs. pute. written order from Eckerie. An appeal must be filed within 10 days of the judge’s order. Ashland Police Capt. Tom Kelley said Vincent’s license was suspended recently that Wallin would not have conducted a by the state Transportation Cabinet be breath test on Vincent because he is not a cause of his refusal to take the test. In his motion fordismissal, Vincent’s at breathalyzer operator. Kelley added that torney, David Mussetter, said the appeal the complaints against Wallin have not was late because it should have been filed been resolved. The charges against Vincent have caused when thejudgemade the order and signed controversy in Boyd County because of the court calendar, or docket. his status as a public official. The Courier-Journal, February 1, 1990.

April 1990/The Advocate 31 PLAIN VIEW Search and Seizure Law

Ernie Lewis

UNITED STATES SUPREME tified that on the day of the murder James tation with prior inconsistentutterances’." hasblack hair. The prosecution thenintro COURT duced James’ previously suppressed The majority, however, decided to draw statement to contradict Henderson’s tes the line at the defendant’s testimony. timony. James was convicted of murder James v. Illinois After James, only where the defendant and sentenced to 30 years in prison. Jus Here is one view of the exclusionary rule: testifies contrary to suppressed evidence tice Brennan authored the opinion for a evidence "/Tjhe rule excluding evidence seized in surprising majority including Blackmun, can that be used for impeach ment purposes. The majority felt that a violation of the 4th Amendment has been White, Marshall, and Stevens. The recognized as a principal mode of dis threat of perjury would be effective majority held that the use of Henderson’s against the perjuring defense witness. couraging lawless police conduct statement waserroneous, andreversed the Further, were the dissenter’s rule to be .IWjithout it the constitutional guarantee judgment. against searches and seizures would be a adopted, the majority feared this "would mere ‘form ofwords’." chill some defendants from presenting The holding halted a trend of recent years their best defense - and sometimes any to permit the prosecution to use sup defense at all - throughthe testimony of Here is another view of the same rule: pressed matters for impeachment pur others." Significantly, the majority also "/TJhe exclusionary rule does not apply poses. In Walder v. United States, 347 feared that the proposed exception would where the interest in pursuing truth or U.S. 62 1954, the court allowed sup "significantly weaken the exclusionary other important values outweighs any pressed heroin to be used to impeach the rules’ deterrent on police misconduct." deterrence of unlawful conduct that the defendant’s testimony that he had never rule might achieve." possessed narcotics. In Harris v. New James can only be used under limited cir York, 401 U.S. 222, 91 S.Ct. 643, 28 cumstances. L.Ed.2d 11971 andOregon v.Hass, 420 Its importancelies, however, Both views are expressed in the same in the court’sunwillingness, at least at this United States Supreme Court case,James U.S. 714,95 S.Ct. 1215, 43 L.Ed.2d 570 time, to consider further significant 1975, statements taken in violation of v.Illinois,493U.S..._, 11OS.Ct. 648, 107 erosion of the exclusionary rule. L.Ed.2d 676 1990. This case is a Miranda were said to have been properly dramatic example of the division in the used to impeach a defendant’s testimony. court over the issue of the value of the And in United States v. Havens, 446 U.S. Maryland v. Buie exclusionary rule, that is whether it is 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 1980, the court allowed a prosecutor to Once, the "physical entry of the home judicially created or inherent within the [was] the chief evil 4thAmendment, and whether it has as its ask the defendant questions on cross-ex against which the wording of the 4th Amendment purpose merely deterring police miscon amination that were within the scope of is direct direct examination and then to impeach ed." UnitedStatesv. UnitedStatesDistrict duct or whether it has a broader purpose. Court, 407 U.S. 297, 313, 92 S.Ct. Surprisingly, in James v. Illinois, the first the answers given with evidence that had 2125, viewquoted above belongsto themajority previously beensuppressed. 32 L.Ed.2d 7521972. However, 3 years opinion, the latter view that of the conser ago the court allowed the home to be entered without a warrant in order to vative in-this-case minority. The facts Under this line of cases, it appeared the search a probationer’s residence. Grffln were rather simple. Darryl James, a court would further expand the exception juvenile, told police investigating a mur v. Wisconsin, 483 U.S. 868, 107 S.Ct. to the exclusionary rule by extending it to 3164, 97 L.Ed.2d 709 1987. This in der that he had red hair theprevious day, defense witnesses. Indeed, the fourjustice but had then dyed it black "in order to trusion has now beenfurther extended in minority of Kennedy, Rehnquist, 0’- Maryland v.Bide, 46 CrL. 2133 1990. change his appearance." The murderer Connor, andScalia would have socrafted had beendescribed as having reddish hair. the exception under the rationale that James’ statement was suppressed prior to where "the jury is misled by false tes Following an armed robbery, the police trial as taken following an illegal arrest. timony, otherwise subject to flat con obtained an arrest warrant for Jerome tradictionby evidence illegally seized, the Buie. During the warrant’s execution, was found in his basement. James didnot testify at trial. However, he protection of the exclusionary rule is ‘per Buie After arresting him, Detective Joseph Frolich did present Jewel Henderson, who tes vertedinto a license to use perjuryby way of a defense, free from therisk of confron went into the basement to see whether

This regularAdvocate column reviews all published searchand seizure decisions of the United SupremeCourt, the Kentucky Supreme Court, and the Kentucky Courtof Appeals and significant cases from other jurisdictions.

April 1990/TheAdvocate 32 anyone else was there. Instead, he found a was arrested on a warrant and transported KENTUCKY SUPREME red jogging suit matching the description from Mexico to California. Following his of clothes worn by the robber. The arrest, theDEA and Mexicanpolice sear COURT 7 Maryland Court of Appeals held that the ched thedefendant’s house without a war seizure of the jogging suit was illegal be rant and found incriminating evidence. Reneer v. Commonwealth cause there was not probable cause to The district court suppressed the evi believe that there was a potentiality for dence, and the 9th Circuit affirmed the The Kentucky Supreme Court addressed danger at the time of the protective sweep. suppression. one search and seizure issue recently in the case of Reneer v. Commonwealth, Ky., _S.W.2d_ Feb. 8, 1990. 7-2 majority reversed. In a decision The Supreme Court reversed. Here, A United Reneer was arrested on a warrant. Follow written by Justice White, the court held States v. Rene Martin Verdugo-Ur ing arrest, he asked to urinate, and that a protective sweep of a house may be quidez, 110 S.Ct. 1056 Feb. 1990. when In a he did so he was accompanied by the performed whenthere arearticulablefacts decision by the ChiefJustice, the 5 justice police. While securing thebathroomarea, which "would warrant a reasonably pru majority held that the 4th Amendment a pilibox in which morphine was found dentofficer in believing that the area to be does not apply to searches of aliens’ was seized. Reneer challenged the search swept harbors an individual posing a property located outside theUS. The court and seizure on the grounds that the danger to those on the arrest scene." The found the defendant to be excluded war from rant didnot specifically describe the items case was remanded back for a factual "the people" within the text of the 4th to be seized. determination on the reasonable suspicion Amendment. Because he was not "a per issue. son," and because his property was lo cated in Mexico, the4th Amendment was The court did not address the warrant The majority relied explicitly on a Terry held to have had no application. Justice issue, however, in affirming the legalityof Stevens concurred the search. Rather, the court approved the v. Ohio, 392 U.S. 11968 analysis. Terry in the judgment, but wrote separately to express his opinion searchas incident to a lawful arrest, citing allowed a stop-and-frisk of individuals that while the 4th Amendment did apply Chimel v. California, 395 U.S. 752, 89 based upon reasonable suspicion. Michi to the defendant, the warrant clause did S.Ct. 2034,23 L.Ed.2d 685 1969. gan v. Long,. 463 U.S. 1032, 103 S.CL 3469, 77 L.Ed.2d 1201 1983, authoriz not. He concurred because he thought the ing a "frisk’ of an automobile for search to have been "reasonable." weapons" was also explicitly utilized. The majority found Terry andLong useful Justice Brennan, Marshall, andBlackmun SHORT VIEW in the situation of an officer facing a dissented. Brennan. joined by Marshall, potentially dangerous situation. would have found the 4th Amendment applicable due to the fact that the defen dant was being prosecuted in American The court placed significant limitations, courts. "If we expect aliens to obey our In re Hodari D., Cal.Ct.App., 1st Div., 46 however, on the protective search. Of Cr.L. 1293 12/15/93. The act of chasing not search rather, laws, aliens should be able to expect that ficers may fully a house; we will obey our Constitution when we a fleeing juvenile was a seizure under the search extends "only to a cursory in Michigan v. Chesternut, 486 U.S. 567, where investigate, prosecute, and punish them." spection of those spaces a person Justice Blackmun dissented separately. 108 S.Ct. 1975, 100 L.Ed.2d 565 1988. may be found." Further, the court refused Thus, when the juvenile threw down a to overrule Chimel v. California, 395 U.S. piece of rock cocaine once the police 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 Smith v. Ohio caughtup withhim, that cocaine had to be 1969, which held that a search incident suppressed because the police had no to a lawful arrest "could not extend The court almost reached unanimity in probable cause to seize thejuvenile; beyond the arrestee’s person and the area this per curia,n decision. Smith ‘. Ohio, from within which the arrestee might have 110 S.Ct. 1288 March 1990. Smith had obtained a weapon." Thus, Buie cannot be been walking with a grocery bag when he United States v. Barrett, 890 F.2d 855 used to justify a "top-to-bottom" searchof was told to "come here" by the police. 6thCir. 1989. In this fact bound case, the a house following the arrest of an accused When they identified themselves as the 6thCircuit found probable cause to search on a warrant. police, Smith threw his bag on his car and Barrett’s car, in which a pouch was found faced them. The police took the bag, to possess one ounce of cocaine. The opened it, and charged Smith upon dis police executed a search warrant on Jef Justice Brennan, joined by Justice Mar covering drug paraphenalia therein. frey Dolan, who had sold one ounce of shall, dissented. Brennan has been the cocaine to an informer, and had told the biggest critic of the court’s expansion of informer that he would laterhave another the Terryexception to the warrant require The Ohio Supreme Court affirmed ounce for him. Based upon this informa ment, saying theexception is beginning to Smith’s conviction upon grounds that the tion, the Tens. Bureau of Investigation "swallow the general rule." The dis search was incident to a lawful arrest, and the DEA obtained a search warrant, sent would have required probable cause despite the fact that the arrest had fol whose executionrevealed little. However, to justify a protective sweep of a house. - lowed the search. The court reversed, while the warrant was being executed, saying that they had many times held that Jeffrey Barrett drove up andgot outof his "an incident search may not precede an car. Upon being told that Dolan had been arrest andserve as partofits justification." arrested, Barrett and "nervously" got back Seefor example, Sibron v. New York, 392 into his car, "nervously" tried to conceal United States v. Rene U.S. 40, 63 1968. Justice Marshall dis the pouch from the police. This brought Martin Verdugo-Urquidez sented, saying that while the majority’s the case under the automobile probable decision appeared correct, that a summary cause umbrella of United States v. Ross, disposition on the merits was inap 456U.S. 798,102 S.Ct. 2157, 72L.,EcL2d The defendant, a Mexican citizen, was propriate. thought to be a narcotics smuggler. He 572 1982 and thus the search of the car was legal;

April 1990/The Advocate 33 State v. Jardine, Idaho Ct. App., 46 Cr.L 131712/29/89. An anonymous informer told the police that Jardine was growing Gun Clips Suppressed marijuana in his house.The police check When is consent to a police searchvoluntary? Not, apparently, if one has agreed to do it with ed the electrical usage and presented an the proviso that the searching officers feed one’s dogs, or if oneis a juvenile lurking in a bus affidavit to the magistrate which stated terminal late at night Those are the recent rulings of two New York trial courts. Yolanda that Jardine’s electrical usage had in Dieudonne was arrested at her Bronx apartmenton June 23, 1988, after severalpeople were creased 453% over a previous occupant’s seen fleeing from the building in which shelived. They reported that awoman was shooting a usage. The police omitted, however, that gun. The woman was apparently Dieudonne, and she was arrested. At the precinct station she during the period of time compared, the granted permission for officers to searchher apartmenton the condition that they feed her dogs. house had been mostly unoccupied. This The search disclosed a gun, clip and bullets in a can in thepantry. Dieudonne was charged with disregard for the a variety of offenses, including criminal possession of a firearm in the second degree. In a constituted a "reckless pretrialmotion shemoved to suppress the gun and bullets from evidence on theground that she truth"underFranksv.Delaware, 438 U.S. had not consented voluntarily to the search that produced them. Justice Dominic R. Massaro 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 of the Supreme Court agreed. The overriding issue, Massaro said, was "whether the consent is 1978. The court adopted the analysis in in factvoluntarilygivenorotherwise wastheproduct ofan extenuating circumstance." ,Massaro UnitedStates v. Stanert, 762 F.2d 7759th concluded that Dieudonne’s "free will was [sufficiently] burdened by an overriding concern for Cir. 1985, amended 769 F.2d 1410 9th the welfare ofher dogs" that her consentwas not freely given. "For some people," he said, "pets Cir. 1985, which had applied Franks to are every bitas important in the most central aspectsof theirlives as children. ... [Dieudonne’s] reckless omissions of facts as well as dogs ... are as important to [her] mental and physical health as medical care itself’ and her deliberate misstatements; worries about them in effect amounted to coercion. For Mark A.,the problem was not dogs but the fact that he bumped into Officer John Ryan of United States v. Thomas, 893 F.2d 482 the New York City Police Department at 12:30 on the morning of May 31, 1989. Mark was 2nd Cir. 1990. Exigent circumstances alone in a bus terminal, carrying abag. The terminal is a haunt ofrunaway children, and Ryan sufficient to omit the warrant requirement has apolicy of questioning unaccompanied juveniles after 8 p.m. on the chance that they are before entry into a house must be present runaways.Mark was questioned and apparently gave unsatisfactory answers, because Ryan searched his bag. A hard rectangular object at the bottom of the bag turned out to be a gun clip apartfrom the actions of the police. Thus, with 16.9 millimeter bullets. The bullets fit into a Luger pistol being carried by a person Mark where officers had probable cause to pointedoutto the officerelsewherein the terminal. Markwasarrested and charged with criminal believe the defendant was selling drugs possessionof the weapon. He moved to suppress the evidence on the ground that Officer Ryan outofhis apartment, 7 police officers went lacked probable cause to detain him, and theFamily Court of NewYork County agreed. "While there with battering ram and guns drawn, isis possible that thePortAuthority ... may well be a gathering placefor runawaychildren," the the fact that movement was heard inside court said, that did not "justify the defaclo imposition of an 8 p.m. curfew" by Ryan.Noting after the officers had knocked didnot con that Mark was a 15-year-old youth facing an adult police officer who failed to tell him he had stitute exigent circumstances sufficient to theright to refuse the search of his bag, the court declared that the boy merely "acquiesced to break into the apartment without a war lawful authority" instead of giving voluntary consent to the search. rant; People vDieudonne, md. No.4131/88, Nov. 27, 1989; Matter ofMark A.,Dec. 14, 1989. "Reprinted with permission from the March, 1990 issue of the ABA Journal, The Lawyer’s United States v. Jacobsen, 893 F.2d 999 Magazine,publishedby the Amarican BarAssociation." 8th Cir. 1990. The 8th Circuit explored the relationship between privacy rights under the4th Amendment anddue process rights under the 14th Amendment. The may not frisk a person who is being cited questions, and asking for consent to con government began an undercover opera for a "civil violation," such as selling beer duct a body search constitutes a seizure; tion against Jacobsen once he legally to a minor. "The very minor offense accordingly, cocaine found on Lewishad placed an order for 2 nudist magazines. authorizing the stop herecannot, in and of to be suppressed. "If passengers on a bus For 2 1/2 years the government targeted itself, justify the frisk. To so hold would passing through the Capital of this great him for crimes involving child pornog mean that every motorist issued a citation nation cannot be free from police inter raphy. Eventually, Jacobsen ordered such fora minortraffic offensewould enjoy no ference where there is absolutely no basis a magazine and was arrested and con constitutionalprotection from a protective for thepolice officers to stop andquestion victed. The court reversed, findinghim to search for weapons." them, then the police will be free to accost have been entrapped asa matterof law. In people on our streets without any reason so doing, however, the court held that the City ofSt. Paul v. Uber, 450 N.W.2d 623 or cause, In this ‘anything goes’ war on government must have a "reasonable v. drugs, random knocks on the doors of our prior target 1990, and Lowery Commonwealth, homes ‘consent’ suspicion" against a person to S.E.2d 265 both cases, the citizens’ seeking to 388 1990. In searchfor drugs cannotbe far away. This ing them for a sting operation. Thus, the courts declined to allow racial considera used a 4th Amendment analysis. is notAmerica." court tions to justify a stop of a person. In Uber, "[R]easonable suspicion based on articul acts is a threshold limitation on the the fact that a white suburbanite was in an able urban areaknown for prostitution did not ERNIE LEWIS authority of government agents to target an individual for an undercover sting allowhim tobe stopped. Likewise, despite Assistant Public Advocate particular individual’s con the fact that a drug courier profile advised Director operation. If a looking forblack or Hispanic males driv DPAiMadison/Jackson County Office ductgives rise to reasonable suspicion, the rental cars, the court ruled that race 201 Water Street government conduct anyundercover ing may could notbe considered as a relevant fac Richmond, Kentucky 40475 operation it so desires, as long as it does tor under either the 4th or 14th Amend 606623-8413 not give rise to a claim of outrageous ments. ness." United States v. Lewis, 728 F.Supp. 784 Simples v. State, Md.Ct.App., 46 Cr.L. the police 1990. Approaching a person in a 1379 1/11/90. Without more, Greyhoundbus, standingoverhim, asking

April l990tTheAdvocate 34 JUVENILE LAW THE CHILD ABUSE-DELINQUENCY CONNECTION DavidN. Sanberg Lexington Books 125 Spring Sr. Lex, MA 02173 617 862-6650 1989

Barbara Holtbaus Many of us who have represented children in juvenile court have been horrified to read the dispositional reportsandpsychological evalua tions detailing the family histories of our ALSO OF NOTE clients. Beatings, rapes, exposure to al coholism, drug use and the physical abuse of a Court of Appeals Recognizes parent or sibling are commonplace in the lives Juvenile’s Right to Present Mitigation of these children from infancy on. at Waiver Hearing. A recentdecisionfrom theKentuckyCourt Advocates spend fruitlesshours in court trying to explain away a client’s current delinquency ofAppeals, Garvjj’jv, Commonwealth, 88- One consensus of the contributors is that the CA-1957-MR, rendered February 9,1990, as part of a dysfunctional family cycle. We reaffirmed the rightof juvenile lament with social workers, probation officers prevention of child abuse would eliminate defendants much ofthe crimeanddelinquency that plagues topresent mitigating evidenceat a transfer and county attorneys over the home environ hearing. Thecase, whichwasordered tobe ments that are exposed through their involve society today. While itis true thatnot all abused mentin thecourts. Yet, in theenditneverseems children grow up to be criminals, the bulk of published, is currently under attack by the to make much difference in the ultimate out the evidence indicates that a disproportionate attorney general’s office which is seeking come. The crime has been committed and number of anti-social and self-destructive to depublish and extend theopinion. society demands punishment. The judges have adults share a common experience childhood heard the same sad stories countless times. traumaand violence. In Garvin, the child, who was 17, was Child abuseis duly noted as a factorleading to charged with two counts of first degree the child’s delinquency and their children are burglary. Motion to transfer was made in However, the contributors varied in their as the district court pursuant to the interim sent off to pay for being who their parents sessments of the best approach to dealing with raised them to be. version of the transfer statute, KRS victims who’ve become delinquents. For ex 640.010, that ample, the probation officer had faith that the was then in effect. At the present system with some refinement was ade time, proof of a prior felony was required David N. Sanberg’s book, The Child Abuse- beforea waivercould takeplace. The child Delinquency Connection Lexington Books, quate to deal with theproblem, while thejudge was waived to circuit court where he pled 1989 fully documents what those of us in the was happy with the legal systemas a means of guilty and subsequently appealedthe trans juvenile justice system have always known- dealing with delinquency but wanted to see more comprehensiveand better coordinatedin fer as a conditional plea pursuant to RCr child abuse and violent home environments 8.09. invariably create children who are prone to tervention into the families of the children delinquency during court involvement. Andrew Vachss felt and anti-social behavior. While The Court said the child was entitled to the book can’tprovide child advocates with the that the emphasis should be on thechild protec tive continuumof carerather than waiting for presentmitigating evidence at the transfer ammunition to keep their clients from being hearing. The district court had previously incarcerated it does provide insight into the the children to come into the justice system. Everyone agreed that the optimal solution was denied the child’s motion for psychiatric problems and provides a framework from evaluation and also denied the proffered which the advocate can critique the prevailing pre-adolescent screening and intervention for "get tough approach" to juvenile crime and children atrisk before they themselves begin to testimony of a CHR social worker con cause act out and become involved in the system as cerning his mental competency. Theissue advance the of prevention andinterven of competencyrelated the validity tion to further the best interest of the children, delinquents. Unfortunately, the contributors his to of also agreed that there were no easy answers to the prior felony which was required to dealing with either delinquency or child abuse. permit the waiver. In addition, the formatof the book represents a microcosmof thejuvenilejustice system. The Garvin’s appellate attorney, MarieAllison, link between earlyabuse and subsequentdein Mr. Sanberg is an attorney specializing in is vigorously opposing the attorney quencyisexplored from theindividual perspec children in youth law as well as director of the general’s attempt to depublish and under tives of the typical cast members ofajuvenile Program on Law and Child Maltreatment at mine the opinion. Ms. Allison views this court proceeding: individual chapters were Boston University School of Law. The views case as a very important one for child written byamongothers, ajuvenile courtjudge, and contributors represented in this book areon defendants in that it clearly delineates that a probation officer, a defense attorney noted thecutting edge of thejuvenilejustice system. The book full thought-provoking case they are entitled to the full panopoly of authorand child advocate, AndrewVachss, a is of rights accorded to all individuals in the psychiatristand, most remarkably, a victim-a examplesand a valuable sourceof statisticsand studies concerning many facets the criminal justice system and it recognizes young man who was terribly abused as achild, of system. the grave consequences of waiving became delinquent as an adolescent and ul It should be on the reading list of everyone connected with thejuvenile justice system. children to adult court It is time that the thnateiy progressed through treatment to be courts officially recognize in a published come a counsellor of other victims, This uni opinion the need for every safeguard pos que, multifaceted perspective captures the BARBARA M. HOLTHAUS sible to protect the best interests of these blendoflaw,medicine, socialscience andereo Assistant Public Advocate children. Note that the Garvin case is not tion that comprise thejuvenilejustice system. Post-Conviction Services Branch final and should not be cited as legal prece Frankfort, KY dent.

April 1990 I The Advocate 35 EVIDENCE IN CRIMINAL CASES

LOOKING AT THE NEWEVIDENCE CODE - PART!

David Niehaus

This is the first of a series of articles about Rules, Illustrations and Problems, Rev. The first paragraph recounts the decision Kenzuclcy’sproposedevidence code. 2d Ed., published by the National In of the Committee to strive foruniformity stitute for Trial Advocacy N1TA South with the Federal Rulesof Evidence and to SCHEME AND INTENT Bend, Indiana in 1989 which costs $30 depart from the Federal Rules only for OF NEW RULES and Michael Martin, Basic Problems of good reason. The Committee notes that Evidence, 6th Ed., ALIJABA, Philadel uniformity between state and federal rules Few people are enthusiastic about the phia, Pennsylvania 1988, price un would minimize forum shopping in civil technical parts of a cedealthough they are known. Oneof these two books along with cases and would in time add to the ef the most important parts of any com Lawson’s Handbook of Kentucky ficiency of the judicial system. The Com prehensive revision of the law because Evidence will be essential for any attorney mittee notes that the Federal Rules have they determine how the statutes or rules who intends to study the new rules before been in operation since 1975 and that will be applied. For every major revision the expectedeffective dateofJuly 1,1992. severalstates have adopted rules patterned of the law there are a number of technical after the FederalRules. Therefore, there is questions that have to be decided so that These textsarevery good because they are a "substantial and growing body of case the revisionwill notwork toomuch havoc law construing these rules,...which can be when it is enacted. aimed at practitioners learning new rules of invaluable assistance in the applica of evidence rather than at law students tion" of the new evidence rules for Ken learning rules for the first time. But the An example of a situation in which this focus of this article and the ones that fol tucky. was notdone was the truth-in-sentencing low is going to beon specific strengths and statutes [KRS 532.055; 439.34011 which problems that I see in the Final Draft sub The second paragraph deals with the generated a whole new sub-speciality of mittedin November, 1989. A sound grasp Commentary that the drafters have legal argument and a steady stream of ofthe scheme ofthe rules andthe intention prepared. The drafters state that they used cases before the appellate courts. How of the drafters is essential to make the the advisory notes and committee reports ever, the drafters of the November, 1989 following articles dealing with specific on the Federal Rules aswell ascases con Final Draft of the Kentucky Rules of portions of thecode understandable. This struing those rules. The structure of the Evidence KREhave taken the time to inquiry starts with a brief description of Commentary is: 1 a briefdescription of propose specific rules and make specific the contents of the code. the particular rule, 2 an explanation of recommendations for the application and any difference between the Kentucky and interpretation of the substantive CONTENTS OF THE CODE federalrule, and3 acomparisonbetween provisionsof the proposed evidencecode. pre-existing law and the new rule, if that Like the Federal Rules of Evidence from is necessary. The Prefatory Note advises which it is copied, the 1989 Final Draft courts and attorneys that the Commentary This perhaps is an unglamorous topic to consists of 11 articles, 9 of which deal should be used in the application andcon start a review of the new rules, but I think with substantive rules of evidence and 2 structionof the rules. This is reinforced by it is essential to an understanding of what of which deal with intent, interpretation, Rule 1104 KRE 1104 which says that the the rules mean, what the codification of and procedure. Unlike the Federal Rules Commentary accompanying the rules evidence law is intended to accomplish, of Evidence but like the Kentucky Penal may be used as an aid in construing the and how these rules will affect practicein Code of 1974, the Final Draft has aCorn rules. the courts. The operativeprovisionsof the mentary for each section which is in- proposed rules will be much more under tended to be used in applying and inter The final portion of the Prefatory Note standable once the overall scheme and preting that section.The drafters have also deals with the inevitable inconsistencies intent of the rules areunderstood. included a "Prefatory Note" which ex and conflicts that attend the introduction plains the purposes and intent of the of a new codified body of rules into an BOOKS ON EVIDENCE drafters for the rules. The 2 interpretative already extant legal system. The commit and procedural articles, I and XL and the tee states that it has attempted to amend This series of articles will notbe a rule by Prefatory Note are the subject of this ar all other rules of court to avoid inconsis rule examination of the proposals of the ticle. tency or conflict, but that if conflict oc drafting committee. In the first place, curs, the evidence rules shall take thereis not enough space inThe Advocate PREFATORY NOTE precedence over the rules of criminal and to allow such a review. And in any case, civilprocedure. The Committee makes no there are two first-ratesingle volume texts The Prefatory Noteis divided into 3 num mention of the possibility ofconflict with that explain the operation of the rules bered paragraphs which deal withspecific statutes, two instances of which I have much better than I caii. These books are assumptions andintentions of the drafting already noticed. In the following para Michael H. Graham, Evidence: Text, committee. graphs Ideal with some of the consequen

April 1990/The Advocate 36 ces of the approach of the drafting com S,W.2d 270, 271 1979], but it probably what should be done in Kentucky’s case mittee as explainedin its Prefatory Note. won’t be necessary to decide since it is where we are adopting a body ofrules that safe to say that the generally accepted has been in existence for 15 years. COPYING FROM.THE FEDERAL federal interpretation of the language is RULES likely in most cases to be adopted by the First, there is a question of whether there courts. should be a statement more explicit than Even without the statement of the Com the KRE 607 Commentary, either in the mittee it would be apparent that in almost In addition, there is a fair amount of una Prefatory Note, the Code itself, or the every instance the proposed Rules of nimity among the state jurisdictions that Commentary, as to what effect previous Evidence are copied almost word forword have adopted the federal rules as to what Kentucky common law is going to have fromtheFederalRules.Thisisnotsurpris many of the provisions mean. But the fact under the new rules. Judge Jack ing because at latest count 31 other juris that we getting an established body ofcase Weinstein of Weinstein’s Evidence has dictionshave adoptedevidence codes that law to help interpret these rules does not stated that the federal rules are not com follow this pattern. [Joseph and Saltzburg, necessarily mean that there will not be prehensive and that therefore, in spite of Evidence in America: The Federal Rules problems. the codification, the common law ap in the States, p. iii, Michie, 1989]. Copy proach is still important. [Martin, Basic ing our evidence rules from those of the Problems of Evidence, p.2]. To some ex federal courts solves many problems of Article 6 in the Federal and Kentucky Rules deals with witnesses and impeach tent thisis implied in thesecondparagraph interpretation andconstruction. of the Prefatory Note which observes that ment. Although the rules allow impeach most evidence codes contain only broad ment by character, criminal convictions general rules which leave the judiciary The adoption of a code of rules from the and prior statements, the rules make no federal system creates a body of case law mention whatever of impeachment by room to flesh out those rules through ap for interpretive purposes. In Lexington showing bias, prejudice, or interest on the pellate opinions. It is said more clearly in the Commentary of KRE 607 Cemetery v. Commonwealth, 181 S.W.2d part of the witness. This created some but only 699, 7021944 the former Court of Ap with respect to impeachment. Obviously, thing of a problem in the federal courts the drafters are following peals noted that "where a state govern until the U.S. Supreme Court in U. v. the usual ap ment, acting independently in its own Abel, 469 U.S. 45, 105 S.Ct. 465, 83 proach to evidence rules, which is to say sphere, copies a federal statute, the state L.Ed.2d 450 1984 dealt with the ques that general rules exist but that specific act will be construed to have the same tion. applications will be developed on a case- meaning as the federal act."And inRegen by-casebasis. But perhaps a more explicit hardt Construction Co. v. Southern Rail statement as to the use of previous com way, 181 S.W.2d 441, 444 1944 the In that case the U.S. Supreme Court had monlaw would be helpful. Court of Appeals stated that where a to dance around the absence of impeach federal act is copied, the courts will ment by bias in Article 6. The problem arose because generally when a com An example of such ahelpful statement is ‘ "presume conclusively" that the legisla foundin the Penal Code of 1974. In KRS ture notonly adopted the language of the prehensive code is enacted andis intended to cover an entire area of law the previous 500.020 all common law criminal offen federal law but also adoptedand approved ses were abolished and a strict provision the construction placed on that language law is considered abrogated whether it is or Thus, the was made that no act could be criminal by the federal courts. This rule applies repealed explicitly not. ques ized except by statute. The General As regardless of subsequent federal court tion in Abel was whether the Federal Rules, by listing the types ofimpeachment sembly also enacted a draconian retroac decisions that might placea different con tivity provision KRS 500.040 which available, foreclosed any other type of in struction on the same language. These underscored the sharp and unbridgeable principles should also apply to court rules impeachment. The Supreme Court really break between the criminal law that ex and mean simply that because Kentucky did not have much trouble deciding that isted before 1974 and the statutory is adopting the language of the federal bias impeachment was authorized al provisions though it had to do sounder FRE 401 and in thePenal Code of 1974. The rules of evidence Kentucky courts should courts were notleftin anydoubt as to what predicate their actions under the rules on 402, the federal relevancy and admis the General Assembly intended. The the meaning and the prior construction of sibility provisions. The court relied on language in the Advisory Committee General Assembly intended a marked the identical federal passages as of the change inthecriminal law withinterpreta date of adoption. reportto the federalrules which noted that although in principle no common law of tion to be made only by reference to the after enactment the text of the statutes and the Commentary. evidence remained of In the opinion of most experts, evidence Thus, the enactment of the proposed rules Rules, in reality"the body of commonlaw will incorporateinto Kentucky law an en knowledge continues to exist, though in rules cannot be subjected to such a strict tire body of federal judicial opinions con the somewhat altered form of source of separation of common law and court rule. a [Martin, Basic Problems of Evidence, cerning the meaning of the language we guidance in the exercise of delegated p. adopt. [469 U.S. at 51-52; 105 S.Ct. at 2]. However, it would be very useful for powers." interpretive purposes to have a statement 469]. that says what the drafters expect the role To the extent that the Commentary to the of previous common law to be under the Evidence Rules does not demand a con In federal courts impeachment to show Rules of Evidence. trary conclusion, where the language of bias, interest or prejudice is permissible the federaland Kentuckyrules isthe same, the general rules of admissibility set under The other issue that arises here is a ques we will be getting not only the language out at FRE 401 and 402. Under the rules of the rules but also the interpretation and of construction set out in Lexington tion of whether it might not be better to construction placed on those rules by the add to the proposed Rules a provision that Cemetery and Regenhardt Construction, by showing of bias, federal courts. The courts apparently are Abel should be incorporated along with allows impeachment not sure whether this precedent is binding the rules language. The Commentary to prejudice or interest. In favor of such a or persuasive, [KCHR v. Commonwealth, course of action arefive models ofsuch a KRE 607 indicates that this is so. This type rule currently available. Joseph and Department of Justice, Ky.App., 586 of problem raises two questions about

April 1990/The Advocate 37 Saltzburg in Evidence in America note forthe district court logistically simply by stance the drafters have taken a federal that the Uniform Rules Commissioners the number of applications that might rule of long standing and amended it to have drafted a bias rule and that Florida, made and would also prevent the court meet an unfair situation. In this regard the Hawaii, Oregon, and Utah have added from carrying out its mission. In FTP v. drafters have beaten the federal courts to specific provisions to their adaptations of Courier-Journal, Ky., 774 S.W.2d 444 the punch because the federal amendment the federalrules. I agree thatthe Kentucky 1989 the Supreme Court approved the that would require balancing in all cases rules should depart from the federal rules purposes and theory that underlie the wasnotproposeduntil January, 1990. [46 only forcompelling reasons, but it seems Unified Juvenile Code. An important ele CrL 19, p. 2093 2-14-90]. tomethat it might be bettertotake care of ment of UJC is the confidentiality of this obvious oversight in the federal rules proceedings that assists the Juvenile Ses The three examples set outabove illustrate by inclusion of a specific provision in the sion of the district court in carrying out its Rules rather than by indirect function of treating and rehabilitating a matters that have to be taken into account Kentucky before the Final Draft is approved. Ad adoption of the U.S. Supreme Court’s juvenile. The juvenile court, under the herence to the federal rules is the only opinion saying that such impeachment is Unified Juvenile Code, stands intheplace allowed under the general rules of of the parent and treats rather than sensible way to proceed in developing an evidence code. Most of the provisions of relevancy and admissibility. punishes. This is the quid pro quo for the the Federal Rules of Evidence have surrender of many of the child’s constitu received a tional and statutory rights. court settled interpretation and their problem that is apparent from fol The application should notpresent A real would be hampered in carrying out its much prob lowing the federal rules too closely is duties of rehabilitation and treatment if at 1cm. However, it is important before the found in proposedRule 609 which allows Kentucky rules are enacted to give the impeachment by evidenceofprior convic the same time it was put in a position of entire code a thorough review to avoid rule says that releasing confidential information about a conflicts with tions. Subsection 3 of that child, not because the child had com already existing laws and evidence of juvenile adjudications mitted another crime, but simply because policies and to see if Kentucky can cure generally will not be admissible under problems already identified in case law by KRE 609. However, in a criminal case drafting provisions to meet situations not evidence of a juvenile adjudication of a covered by the Federal Rules. The draft witness other than the accused can be ad ing committee has done this in a number mitted if 1 the offense would be admis ofrules. Itmaybewisetodosoinafew sible to attack the credibility of an adult, other instances. and2 the court is satisfied that admission is necessaryfora fair determinationof the USE OF A COMMENTARY issue ofguilt or innocence. The Commen tary frankly notes that this provision is The drafting committee has continued the "borrowed" from the Federal Rules and practice of providing a commentary for that it is inconsistent with previous prac major changes of Kentucky law. The last tice. It appears that afair number of states comparable event was the enactment of have not adopted this portion of the rule. the Penal Code in 1974. As noted in the [Joseph and Saltzburg, Evidence in preceding section, the PenalCode needed America, Rule 609, Sec. 43.4]. The ques a commentary because the Code was in- tion is whether this change in Kentucky tended to be a break between previous law law is desirable or whether this is an in- and a new, integrated code of statutory stance in which good reason exists not to law. That is not the case here. In the case copy the federal rule in its entirety. of the Rules of Evidence, it will not be possible to make that sharp delineation It appears that this provision conflicts between pre- and post-enactment law. squarely with KRS 610.3401 and 2 The Commentary should provide a good which provide that all juvenile court guide to what the rules intend. records shall be held confidential except the child was a witness in a criminal case. upon showing of good cause or to permit This is one instance in which adherence to The drafting committee forthrightly en "public officers or employees engaged in the federal rules creates problems that courages courts and attorneys to develop the prosecution" of criminal cases to in should be avoided. It justifies divergence a body of appellate opinion using the spect and use these records to the extent form the federal rule as written. Commentary as a guide. It is obvious also "required in the investigation and that any other source, including cases prosecution of the case." It is clear that drafters avoided from otherjurisdictions or the federalsys KRS 6 10.3402 refers to the records of Anexample of howthe a problem that could have arisenunder the tem, can be employed in working out the the subject of theinvestigation orprosecu policy of close adherence to the federal intricacies of each rule. However, this lion. It does notrefer to persons who may rules is KRE 609a. In May, 1989 the Commentary is the closest approximation be subpoenaed as witnesses. The main U.S. Supreme Court decided Green v. of legislative intent that ix Likely to be question is whether snooping around for provided and it should therefore be given previous juvenile adjudications would be Bock Laundry MachineCo., 490 U.S.-, 109 S.Ct. 1981, 104 L.Ed.2d 557 1989 primacy over cases from otbr jurisdic considered good cause under KRS tions and the federal system if there is a rule likely to lead to a which held that the language of FRE 6 10.3401. This is 609a1 required judges to allow im conflict. The committee stops short of lot of trouble. It is not hard to imagine peachment of civil witnesses with prior saying so in KRE 1104, because in the Commonwealth and County attorneys Commentary to that rule the drafters note going to the juvenile court clerk felony convictions regardless of any un routinely fair prejudice that resulted. KRE 609a that "the Commentary is not an authorita to see if any witness had prior adjudica has avoided that problem by requiring tive statement of legal principles; it is tions and to move the district judge for courts to balance probative value against instead an explanation of the thoughts and access to the records if any were found. prejudice in every instance. In this in- considerations that motivated the drafters This could create something of a problem of the rules." The drafters intend for the

April l99OtThe Advocate 38 language of the rules themselves to be the These rules are promulgated under Sec. ing appeal "the court shall conduct an law, and the Commentary is intended lion 116 of the Constitution of Kentucky appropriate adversary hearing to deter simply to "explain its provisions and aid which gives the Supreme Court exclusive mine the propriety of such requests." An in interpreting them." authority to enact rules of practice and "adversary hearing" is one in which due procedure for the Court of Justice. Sec process guarantees, including the use of At least initiallythe hierarchy of authority lion 124 of the Constitution provides that proper evidence, are required. The wis should be: 1 language of the rule, 2 to the extent any other portions of the dom and constitutionality of the policy of Commentary, and 3 authorities from Constitution conflict with the judicial ar non-application to these aspects of a other jurisdictions. It will be very impor tide those provisions should be regarded criminal proceeding are matters that need as impliedly repealed. If there is a real to be explored before therules areenacted. tant in the first cases that arise under the conflict, the rules prevail over the statute. Evidence Code to develop this sort of disciplined presentation of the arguments This conclusion is supported by the lan The fmal interpretive section is KRE 102 guage of KRE 101 which instructs courts in favorof or in opposition to a particular tofollow therules of evidenceand by KRS which is similar in language and intent to interpretation of the rule. After the first 447.154 in which the General Assembly RCr 1.04. KRE 102 says that the rules decisions are made by the Kentucky ap acknowledges that it cannot enact laws shall be construed to secure fairness in pellate courts, SCR 1.0405 will dictate a that amend, repeal or supersede rules of administration, elimination of unjustifi different order because the circuit and dis court. Therefore, a specific statement able expense and delay, promotion of trict judges will be bound to follow any concerning conflictwithstatutesprobably growth and development of the law, all to published cases construing the rules. To the purpose of ascertaining the truth and preventcreationof bad precedentdefense is unnecessary. determining justly the issues in every attorneyshaveto be ready to litigateunder proceeding. This provision will serve the these rules asof July 1, 1992. PROCEDURAL PROVISIONS same purpose as the purpose statement in the criminal laws and is something that Most of the important procedural and The rules present an opportunity to do should be kept in mind in the interpreta structuralprovisionsof the rules are found tion and application of every rule. away with many unfortunate practices in Articlesland XI. As notedabove, KRE that have existed in Kentucky evidence 101 states simply that the rules of CONCLUSION law for a long time. The first precedents evidencegovern proceedings in the courts under the new evidence rules will set the of Kentucky. However, there arelimits to tone andgovern practice under these rules The next severalEvidence column articles the applicability of this basic rule, and will look at specific aspects of the propos and therefore it is very important to be these limits are statedinRule 1101. ready to litigate and to get the rules inter ed evidence rules that will affect criminal preted right the first time. The Commen lawyers. The following articles will notbe tary will be a very usefulmeans of achiev The Commentary of KRE 101 says that as abstractas this one might appear. How ing correct decisions. the rules aredesigned "principally forthe ever, it is very important for every attor trial of cases in the district and circuit ney to understand now what the drafters CONFLICTS WITH OTHER LAWS courts of the Commonwealth of Ken are interested in accomplishing with this tucky." code and to understand howthey intend it The third paragraphof the Prefatory Note to work. sets up an order of precedence among In Rule 1101 the drafters provide that the rules. Where the rules of evidence apply, rules apply generally to all civil actions As Professor Kathleen Brickey noted they should be regarded as superseding andproceedings and to criminal cases and about the Penal Code shortly after it was any conflicting or contrary provisions in proceedings except as provided inSubsec enacted, a codeis not simply a convenient the rules of civil or criminal procedure. tion d ofRule 1101. Subsection d says gathering of unrelated rules. Like all The drafters make a statement that the that, except for the rules governing codes the provisions of KRE are interre rules should be determinative of all issues privilege, theKentucky Rules ofEvidence lated and it is important to know both the concerning the admissibility of evidence will not apply where the judgeis deciding general scheme and the specific in the trial of civil andcriminal cases. a question of fact preliminary to the ad provisions of this Code in order to use it mission of evidence under KRE 104, to advantageously. To a large extent, it ap The Prefatory Note does not contain a proceedings before grand juries, to pears that the drafters have found the concerning order proceedings in small claims courts, to federal rules of evidence satisfactory and statement an of summary contempt proceedings, and to a are therefore content to have adopted precedence where rules and statutes con variety of criminal proceedings including along withthe rules themselves the federal flict. This reflects to some extent the com prehensive nature of the amendment of extradition, preliminary hearings, judge case law interpreting this language. This sentencing, granting revoking proba evidence law that is being undertaken. or plan certainly will make the law of The plan of the drafters is to place all tion, issuance of warrants, and proceed evidence much more accessible and will questions of evidence law in the rules of ings governing bail. cut down on the muunber of cases in which evidence. This is a major departure from qiminal lawyers will have to rely on rail public defenders road crossing cases from 1916 to establish the federal rules whichhad previously left What this means for In basic points of evidence. important matters like privileges outside practical terms is that the rules will apply of the rules and in the hands of the legis to suppression hearings, competenc lative branch. hearings, trial, sentencing under KR J. DAVID NIEHAUS 532.055, sentencing under 532.080 and Deputy Appellate Defender will deal with sentencing under KRS 532.025. Jefferson District Public Defender The Kentucky rules 200 Civic Plaza privileges within the evidencecode. Con 719 West Jefferson Street flicting statutes will be repealed or Some problems areevident. For example, Louisville, Kentucky 40202 amended. If after this there is still some in Peacock v. Commonwealth, Ky., 701 502 625-3800 conflict or inconsistency, the rules should S.W.2d 397 1985 the Supreme Court prevail over statutes. said that in all cases involving bail pend

April l99OtThe Advocate 39 ETHICS STATE’S LAWYER SD!VIDED ON NEED FOR ‘SQUEAL LAW’

Whenthe state Supreme Court adopted a W. Robert Lotz, a Northern Kentucky at Raymond Clooney, the Kentucky bar’s package of ethics rules, it dropped a re torney on a committee that is writing rules disciplinary counsel, estimated that 10 - quirement that lawyers must "squeal" on of ethics for defense of criminal cases for 15% of the complaints filed against other attorneys suspected of misconduct. Chief Justice Robert Stephens, agrees lawyers in Kentucky were filed by law with the deletion. yers. Kentucky and California arenow the only two states without the so-called "squeal "It’s discretionary, a lawyer can still The Cincinnati Post, February 27, 1990. law." make a report," Lotz said. ‘They will Reprinted withpermission. still be reported," Lotz said. "Reports Some legal experts said the court’s should be made on major errs any way." decision raised questions about the com mitment of the state’s lawyers to police Kenton Circuit JudgeRaymond Lapesaid themselves. lawyers reporting other lawyers for mis NO COMMENT conduct "is rarely done anyway. If there "The signal that the public gets is that are bad apples in the barrel,they will show we’re notthat concerned about regulating anyway." ourselves," said George Kuhiman, ethics won’t [PROSECUTOR CRAFF EXPLAINING counsel for the American Bar Associa The deletion of the requirement HIS PEREMPTORIES] Juror Marion tion. "To say that we have rules, but we keep lawyers from reporting improper Surge, as we perceived her was a very don’thave an obligation to turn ourselves conduct, he said. "It’s the minor matters strong leader; she’s a very intelligent in is quite a startling departure." that won’t be reported,"Lape said. "Any woman and ... We took her off for those matterthatwould affect the ability to prac reasons Judge. We perceived her as a The quiet deletion of the squeal rule was tice. ... I still believe dishonesty and im leader and we didn’t particularly want a described as "disturbing" and "illogical" propriety would still have to be reported." woman leading this jury so the Common by Richard Underwood, chairman of the wealth felt that it would probably be better if we took her off, [it] had nothing to do Kentucky Bar Association’s ethics com The state’s highest court deleted the man with her ideas on the death penalty..., but mittee and a University of Kentucky datory reporting requirement when it just the fact we perceived her as a leader professor. adopted a new set of ethics rules -. the andwe felt like some man ought to be the American Bar Association’s Model Rules leader. But some NorthernKentucky lawyers say ofProfessional Conduct - effective Jan. 1. the change may simply mean attorneys MS. MORRIS: Ifthat’s notoneofthemost will police themselves withoutfiling offi A special panel headed by Underwood sexist remarks I have ever heard- cial complaints. had recommended some technical revisions in those rules, but not the MR. CRAFF: Oh yeah, I- "The old rule was notenforced," saidMar elimination of the squeal rule. MR. TUSTANIWSKY: We object in that tin Huelsmann, a professor at Chase Law theCommonwealth usedperemptory chal School at Northern Kentucky University. Kentucky Chief Justice Robert Stephens lenges on the basis of sex. "There were very few reported discipli said the court, which considered the nary cases for lawyersnotreporting other Model Ruleslast July, dropped the report lawyers." ing requirement because "we didn’t think BY THE COURT: All through? lawyers should be policemen." Huelsmann, who formerly was chainnan MR. TtJSTANIWSKY: Is that overruled of the Kentucky Bar Association’s ethics Justices Charles Leibson and Donald your honor? committee, said a lot of lawyers reported Wintersheimer said they recalled no dis misconduct because of the rule. The cussion of the deletion and appeared BY THE COURT: Yes it is. change may cause the numberof miscon surprised that it was done. -Commonwealth v. Epperson duct reports to decrease, he sakL substantial "Frankly, it would seem that Submitted by Gary Johnson Now, there may be more in-house solu misconduct should be required to be tions to misconduct and talking between reported," Wintersheimer said. lawyers before a complaint is filed, he said. ‘That may be a good cure." The court voted 6-1 to adopt the package ofnewrules; Justice Roy Vance dissented.

April 1990ffhe Advocate 40 THE RIGHT TO FUNDS FOR EXPERTS: ITS CONTINUED EXPANSION

Edward C. Monahan

This is thefinal ofa 3part series onfunding of defenders and appointed lawyers in 2 Streater indigent resources in criminal cases. federal courts for cases opened in FY 88, and is in addition to the money spent on In 1981, the Court held in a unanimous To no one will we sell, to no one will we full-time investigators in federal public opinion written by Chief Justice Burger refuse...justice. defenderoffices. that in a quasi-criminal paternity action Magna Carta the state cannot deny the putative father DEFENSE ATTORNEYS In FY 89as of 12/89 $3,413,756 has blood grouping tests if he cannot other EXPAND RIGHT TO FUNDS been spent on funds forexperts in federal wise afford them because the indigent criminal and habeas cases. father is entitled to a meaningful oppor FOR EXPERTS tunity to be heard under 14th amendment Over the last 55 years, courts have more due process. Little v.Streater, 452 U.S. 1, and more interpreted the United States A further breakdown of the amount of 101 S.Ct. 2202,68 L.Ed.2d 627 1981. Constitution to requirefunds forresources money paid to particular types of experts for indigents in criminal cases. Not long is provided inthe table accompanying this 3 Ake ago a person without means who was ac article. cased of a crime was noteven entitled to Over 30 years after its decision in Baldi, an attorney at trial. Now an attorney is This information has been provided by the Court addressed the funds for experts required forindigent criminal defendants Mark Silver, 202 633-6051, who is with issue in a fully deliberate way. The Court in many circumstances, and other resour the Criminal Justice Act Division of the effectively overruled Baldi. In Ake v. Ok ces are available to indigents in certain Administrative Office of theUnited States lahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 situations. But not until 1985 did the Courts, Washington, D.C. 20544. L.Ed.2d 53 1985 8-1 the Court deter Supreme Court clearly determine that our mined that when the defendant’s mental United States Constitution required that a UNITED STATES SUPREME condition is seriously in question, the criminal defendant was entitled to funds COURT CASES defense under 14th amendment due for an expert in a capital case. process is entitled at the guilt and penalty Funds for experts for indigent criminal phases to a psychiatrist to: These constitutional guarantees of ade defendants has been infrequently ad dressed by the United States Supreme a. conduct a competent professional exam quate resources for indigent criminal on "issues relevant to the defense..."; defendants only take on meaning when a Court. We review the 4 cases ofthe Court. b. help determine whether insanity criminal defense attorney invokes them defense is viable; on behalf of an individual client. The ex 1 Baldi c. present testimony; pansion of the law which has occurred d. assist in preparing cross of state’s and continues to occuris due to criminal In United States ex rel. Smithv. Baldi, 344 psychiatrist; defense advocatesfighting for its expan U.S. 561, 73 S.Ct. 391, 97 L.Ed.2d 549 e. aid in preparation of penalty phase; f. sion so that the client has a fair process 1953 6-3 the defendant pled guilty to rebut aggravating evidence in capital andfair result. first degree murder. He had a significant penalty phase; history of mental difficulties. While his g. present mitigating evidence. MONEY SPENT ON EXPERTS IN defense attorney produced documentary The Court in its opinion in Ake seemed to evidenceofhis prior mental commitments limit the right to an expert: FEDERAL SYSTEM to show the defendant was insane, the Nationally, each year courts order more defense attorney did not ask for money for experts in criminal cases. psychiatric assistance. The issue of lack of funds for a defense psychiatrist was FEDERAL FUNDS FOR EXPERTS raisedfor the first time in federal court. FY ‘66.FY ‘89 In Fiscal Year FY 1966, $26,287 was paid experts in federal cases. That amount Year Amount increased to $78,216 in FY 69. United With boilerplate analysis, the Supreme Court held that defense assistance by a States v. Schultz, 431 F.2d 907, 911 aS FY’66 $ 26,287 8th Cir. 1970. psychiatrist was not required in this case FY ‘69 $ 78,216 by 14th amendment due process or in FY ‘86 $2,065,015 order to afford Smith adequate counsel, FY ‘88 $2,545,143 ‘ In FY 1986 October 1, 1987-September stating "...the issue of petitioner’s sanity FY ‘89 $3,413,756 30, 1988 $2,065,015 were expended. was heard by the trial court. Psychiatrists $2,545,143 has been paid experts in CJA testified. That suffices." Id. at 395. cases handled by full-time federal public

April 1990/The Advocate 41 This is not to say, of course, that the in STATE EXPERT NOT ENOUGH Kaplan and Sadock ComprehensiveText digent defendanthas a constitutional right book of Psychiatry 5th ed. 1989, is an to choose a psychiatrist of his personal Courts have held that assistance from a extensive work that details the standards liking or to receivefunds to hire his own. "neutral" state expert is constitutionally for acceptable practice in a wide variety Our concern is that the iruEgent defendant have access toacoi’npetentpsychiatristfor and statutorily insufficient. In United of areas, including the psychiatric inter thepurpose we have dLvcusseL States v. Crews, 781 F.2d 826 10th Cir. view, history of the person examined, Id. at1097. 1986 the Court held: psychological testing, physical exams, mental exam and reports. However, when the entire Ake opinion is Such apsychiatristis necessary not only to determined that a testify on behalfof the defendant, but also INEFFECTIVE TO RELY ON read, it effectively to help the defendant’s attorney in prepar criminal defendant is entitled to an inde ing a defense.... Although four treating or STATE EXPERT pendent or defense expert when a suffi court-appointed psychiatriststestified with cient threshold showing is made. As stated respect to Crews’mental condition, Crews While all courts have not agreed, many in Ake, the defendant is entitled to an also was entitled to the appointment of a have not hesitated to find that relying on expert: psychiatrist "to interpret the findings state experts when representing an in of...expert witness[es] and to aid in the digent without requesting and obtaining ...to present testimony, and to assist in preparation of his cross-examination." an independent or defense expert is inef preparing the cross-examination of a Id. at34. fective assistance of counsel since a State’spsychiatric witness.... defendant does not receive the required Id. at 1096. In United States v. Sloan, 776 F.2d 926 partisan perspective he is entitled to and 10th Cir. 1985 the Tenth Circuit held which he would obtain if he were not Ake requires an expert who will help the that under Ake the defendant was entitled indigent. Commonwealth v. Cosme, 499 defendant, "...marshal his defense," Id. at to more than a nonpartisan state doctor: N.E.2d 1203 Mass. 1986; Loe v. United 1095, by performing the traditional, valu States, 545 F.Supp. 662 E.D.Va. 1982; able role of a psychiatrist: The essential benefit of havingan expertin United States v. Fessel, 531 F.2d 1275 the first place is denied the defendant when 5th Cir. 1976; UnitedStates v. Edwards, In this role, psychiatrists gatherfacts, both the services of the doctor must be shared 488 F.2d 1154 5th Cir. 1974. See also through professional examination, inter with the prosecution. In this case, the benefit sought was not only the testimony United States v. Bass, 477 F.2d 723 9th views, and elsewhere, that they will share Cir. 1973. with the judge or juzy; they analyze the of a psychiatrist to present the defendant’s information gathered and from it draw side of the case, but also the assistance of plausible conclusions about the an expert to interpret the findings of an In Curry v. Zant, 371 S.E.2d 647 Ga. defendant’s mental condition, and about expertwitness and toaid in the preparation of his cross-examination. Without that as 1988 the trial judge had assured the ap theeffects ofany disorder on behavior; and pointed counsel that a psychiatrist would they offer opinions about how the sistance, the defendantwas deprived ofthe defendant’s mental condition might have fairtrial due process demands. be appointed upon any reasonable request affected his behavior at the time in ques Id. at929. forone. On its ownmotion, the trial court tion. They know the probative questions had the defendant tested at the statehospi to ask ofthe opposing party’s psychiatrists In Holloway v. State, 361 S.E.2d 794 Ga. tal forcompetency. The state doctorfound and how to interprettheir answers. 1987 the Court held that a capital defen the defendant to be organically brain Id.at 1095. dant who had been examined by a state damaged and to have a borderline per psychologist and state psychiatrist was sonality disorder. The doctor also found The right to expert assistance in order to nevertheless entitled to an independent that the defendant may be malingering or marshal the defense and inorder to cross psychiatrist under Ake on the issues of manipulating. Defense counsel did not the prosecution’s expert only allows for criminal responsibility and mitigation of ask for a defense expert. On a plea of the conclusion that an independent or sentence. See also Lindsey v. State, 330 guilty, the defendant was sentenced to defense expertis required by the Constitu S.E.2d 563 Ga. 1985 defense death formurder. tion. Justice Rehnquist in his dissenting psychiatrist; Commonwealth v. Plank, opinion in Ake virtually recognized that 478 A.2d 872, 874 n.3 Pa.Super. 1984 the majority had, indeed, held that access psychiatrist of defendant’s choice; Bar On his state habeas challenge to his death to a defense expert was required. Id. at nard v.Henderson, 514 F.2d 7445th Cir. sentence, the defendantproduced a mental 1099. 1975 firearms examiner of own choos health expert who testifiedthat the defen ing; Marshall v. United States, 423 F.2d dant had an IQ of 69; had the intelligence 4 Caidwell 13159th Cir. 1970 defendantentitled to of a 12 yearold with an IQ of 10&, that he investigator that will serve him unfettered was seriously mentally ill, and that he Shortly after Ake was decided, the Court by conflicts. But see State v. Gambrell, could not waive his constitutional rights. held that money for experts for indigent 347 S.E.2d 390 N.C. 1986 a statedoctor Also, at the habeas hearing, the defendants was not constitutionally re may fulfill the state’s constitutional defendant’s trial counsel said he did not quired when the defense attorney didnot obligation but did not in this case. ask for an independent expert because he felt it would be futile based on the state make a sufficiently specific showing of doctor’s report. The court held that the need to the trial judge. Caidwell v. Mis COMPETENT EXAM REQUIRED sissippi, 472 U.S. 320, 105 S.Ct. 2633,86 defendant was denied effective assistance L.Ed.2d 231 1985 ballistics and Court-appointed psychiatrists who fail to of counsel: fingerprint experts. In the opinion of the conduct competent and adequate pretrial We find that although trial counsel met Court written by Justice Marshall, evaluations of a defendant’s mental state with Curry on many occasions, consulted criminal defense attorneys were warned and mitigation deny a defendant due with Curry and Curry’s family on the that general requests for experts are just process of law. State v. Sireci, 536 So.2d decision to enter a guilty plea, and con not adequate. Id. at 2637 n. 1. 231,233 Fla. 1988. InSireci the capital scientiously prepared for the sentencing clienthad organicbrain damage that went phase of the trial, his failure to take a unrecognized. crucial step of obtaining an independent psychiatric evaluation of Curry deprived his client ofthe protection of counsel. Con-

April 1990/The Advocate 42 scientious counsel is not necessarily effec People v. Mencher, 248 N.Y.S.2d 805 233 Ga. 1977 decided: "...werecognize tive counsel The failure to obtain a second N.Y.Sup.Ct. 1964. the general right of a defendant charged opinion, which might have been the basis with possession or sale of a prohibited for a successful defense of not guilty by reason ofinsanity and would certainlyhave DENTAL substance to have an expert of his own provided crucial evidence in miti-gation, choosing analyze it independently. so prejudiced the defense that the guilty In Thornton v. State, 339 S.E.2d 241 Ga. Where the defendant’s conviction or ac plea and the sentence of death must be set 1986, the court determined that the quittal is dependent upon the identifica aside. defendant was entitled to money to obtain tion of the substance as contraband, due Id. at649. assistance of a court appointed forensic process of law requires that analysis of a dental expert since that dental evidence substance not be left completely within was critical to the state’s case. It was the the province of the state." Id. at 234. STATE AND OTHER FEDERAL one item linking the defendant to the mur defense CASE LAW GRANTING FUNDS der, and experts consulted by the DRUGS/INTOXICATION - questioned the reliability of dental im INFLUENCE ON BODY AND MIND FOR EXPERTS pression evidence in general. Many appellate court decisions since Ake Recently, it was decided in State v.Coker, have not found reversible error when a While Thornton noted that the defendant 412 N.W.2d 589 Iowa 1987 that an in trialjudgehasfailed to authorizefundsfor was notentitled to an expert of his choos digent defendant was entitled to an expert experts While this may indicate appel ing, the court said the trial judge "should "to examine [him] and assist him in the late hostility to this issue, itmore probably follow a defendant’s preference, if, in its evaluation, preparation, and presentation isevidencethat criminal defense attorneys ofhis intoxication defense," where he was discretion,such appears to be appropriate charged with first robbery and have to do a better job of making the as to qualifications, availability, cost to degree threshold showing very specific and the where he had a serious substance abuse the public, and other pertinent factors." 593. prejudice quite plain. See Obtaining Id.at24ln.2. problem. Id. at Funds for Experts in Criminal Defense Cases: Making The Threshold Showing, "Although trial court should prevent ran The Advocate Vol. 12, No. 2, pp. 42-47. dom fishing expeditions undertaken in search of rather than in preparation of a In spite of this, there are many good ap defense..., it should not withhold appoint pellate decisions finding funds for experts ment of an expert when the facts asserted to be constitutionally required in a variety by counsel reasonably suggest further ex of contexts when there has been the ploration may prove beneficial to defen specific showing that an expert is dant in the development of his or her "reasonably necessary" to the defense. A defense." Id. at 592. sampling of favorable decisions follows. In State v. Lippincott, 307 A.2d 657 NJ. BLOOD 1973 the court held that an indigent defendant charged with driving while in In rape cases, a defendant is entitled to an expert blood to test the defendant’s toxicated was entitled to money for the in services of an expert witness to testify as blood. Bowens v. Eyman, 324 F.Supp. to the consumption, ingestion and absorp 339 D.Ariz. 1970. tion rate of alcohol and the effects of al cohol on the human body. CARDIOLOGIST It was reversible error in People v. Gun A defendant is entitled to money for a nerson, 141 Cal.Rptr. 488 Cal.App. physician who is an expert on narcotics in 1977, a murder case, for thetrial judgeto The court also required appointment of an a murder casewhere the defensemoved to fail to grant money to the indigent defen expert who was comparable to state’s ex suppress the confession since it was ob dant to employ a cardiologist to prove that pert: "the trial could shall appoint an ap tained a few hours after the defendant had the victim’s deathwas due to a heart attack propriate professional, whose experience, been administered a narcotic drug. that occurred simultaneous with the rob at minimum, is substantially equivalent to People v. Mencher, 248 N.Y.S.2d 805 bery and notas a cause of it. that of the state’s expert witness...." Id. at N.Y. Sup.Ct. 1964. 241.

CONFESSION - MIRANDA ISSUES ELECTROENCEPHALOGRAM EEG DEPOSITION COSTS The court held in In Re Allen R., 506 A.2d The defense in this attempted anned rob 329 N.H. 1986 that the defendant was Because a defendant is entitled to an ef bery case was entitled to money to have entitled to funds to employ a psychologist fective defense, an indigent defendant, anEEG run when the defendant’s defense as an expert on Miranda issues tobe used himself, and his attorney are entitled to "turned on his mental condition." United in an attempt to convince the judge to reasonable travel and living expenses to States v. Harfield, 513 F.2d 254,2589th suppress statements. take a deposition. RCr 7.122; Federal Cir. 1975. Rule ofCrisninal Procedure 15c; United States v. Largan, 330 F.Supp. 296 S.D. FINGERPRINTS A defendant is entitled to money for a NY 1971. physician who is an expert on narcotics in The court in United States v. Patterson, murder casewhere the defense moved to a DRUG ANALYSIS - DETERMINA 724F.2d 1128SthCir. 1984heldthatthe suppress the confession since it was ob TION OF IDENTITY OF SUBSTANCE defendant was entitled to appointment and tained a few hours after the defendant had funding of a fingerprint analyst under the been administered a narcotic drug. The court inPattersonv. State, 232 S.E.2d federal indigent expert witness statute, 18

April 1990/The Advocate 43 U.S.C. Section 3006Ae. That statute, HYPNOSIS JURY SELECTION EXPERT like most state’s, requires appointment when the expert is "necessary" for the The 8th Circuit in Little v. Armontrout, In Corenevsky v. Superior Court, 204 defense. 835 F.2d 1240 8th Cir. 1987 en banc Cal.Rptr. 165 CaL 1984 the trial court determinedthe obvious: Ake applies when permitted $8,740 for a jury selection ex the expert is not a psychiatrist and when pert in this noncapital murder case. On a In Patterson, the prosecution had intro the case is notcapital. It also looked at the writ of mandate, the appellate court deter duced fingerprint evidence against the "perils of hypnotically enhanced tes mined this was within the discretion of the defendant along with eyewitness iden timony" and concluded that an expert trial court to grant. Id. at 173. tifications. The defense expert was re would have aided the defendant in his quired not only because a defense expert defense: "Given these perils of hypotheti MITIGATION/SENTENCiNG PHASE "mighthavereacheda different result" but cally enhanced testimony, it is clear that IN CAPITAL CASES also because "the assistance of an expert an expert would have aided Little in his undoubtedly would have facilitated [the defense. The expert could have pointed The Florida Supreme Court determinedin defendant’s] cross-examination of the out questions asked by Officer Lincecuni the capitalcaseofPerri v. State, 441 So.2d government’s expert." Id. at 1131. See which were suggestive or could have 606 Fla. 1983 that it was error to deny also United States v. Fogarty, 558 F.Supp. caused confabulation. The expert could the defendant the assistance of a 856,857 E.D.Tenn. 1982; UnitedStates have presented the limitations of hyp psychiatrist when the defendant had pre v. Durant, 545 F.2d 823 2nd Cir. 1976; nosis, and explained theories of memory. vious alcohol problems and mental hospi Bradford v. United States, 413 F.2d 467 This would probably have had far more tal treatment even where there is no 5th Cir. 1969. impact on the judge at the suppression defense of insanitybecause the defendant hearing and the jury at trial than Little’s was entitled to present psychiatric FIREARMS lawyer’s attempts at impeaching the evidence on factors that, while not a state’s expert by reading from one of the defense, could mitigate his sentence. In Commonwealth v. Bolduc, 411 N.E.2d psychology textbooks he found at a col Other courts readily adopt this holding. 483 Mass.Ct.App. 1980 the defendant lege library, or using information Holloway v. State, 361 S.E.2d 794 Ga. was entitled to a ballistics expert who developed from interviewing a professor 1987; State v. Gambrell, 347 S.E.2d 390 would analyze the defendant’s jacket to of psychology." id. at 1244. N.C. 1986; State v. Wood, 648 P.2d 71 see if there was gun powder residue on it, Utah 1982. indicating whether or not its wearer fired IDENTiFICATION PROCEDURE a weapon eventhough the prosecutor had NEUROLOGIST the jacket analyzed by a police depart In United States v. Baker, 419 F.2d 83 ment criminalist who found no trace of 2nd Cir. 1969 identification of the per A defendant who exhibits bizarre and ir gun powder. petrator was critical. The victim iden rational behavior and who has had pre tified the perpetrator as black. There was vious neurological exams evidencing "There is no question that the evidence a courtroom identification during trial by damage was entitled to funds for a desired by the defendant was relevant to the victim of the defendant with the only neurologist in a malicious destruction of one of the issues in the case, namely, the blacks in the courtroom being the defen property and resisting arrest case. People identity or not of the defendant as one of dant and 2 jurors. v. Dumont, 294 N.W.2d 243 the two participants in the holdup whohad Mich.Ct.App. 1980. firedat the police.... And the judge failed The Second Circuit noted that the trial to recognize that the desired evidence judge before trial encouraged defense might well be all the more valuable to the counsel to use some ingenuity and bring PATERNITY BLOOD TEST defendant because his substantial criminal other blacks into the courtroom. Defense The equal protection and due process record might deter him from taking the counsel responded to the trial judge by clauses of the 14th amendment are vio stand in his ownbehalf." Id. at 486. saying he knew of no way to practically lated when an indigent is denied a blood accomplish that. The Second Circuit ob grouping test in a paternity case since the Since a gun and bullet used in a crime is servedthat the expenses ofbringing other test’s results may be significant in deter "critical evidence whose nature is subject blacks in would be appropriately paid mining if the person is the father. Burns to varying expert opinion," a defendant is under 18 U.S.C. 3006Ae: Id. at 90. v. State, 312 S.E.2d 317 Ga. 1984; see entitled to an expert of his own choosing also Little v. Streater, 452 U.S. 1 1985 according to the 5th Circuit. Barnard v. INTERPRETER Henderson, 514 F.2d 744, 746 5th Cir. PATHOLOGIST 1975. See also United States v. Pope, An indigent defendant is entitled to funds 251 F.Supp. 234 D. Neb. 1966. to hire an interpreter when necessary to the defense. KRS 30A.420; UnitedStates The defendant in Williams v. Martin, 618 HABEAS CORPUS/ v. Largan, 330 F.Supp. 296 S.D. NY F.2d 1021 4thCir. 1980 shot the victim. STATE POST-CONVICTION 1971. She was paralyzed from the wound and died 8 months later. The state medical In order not to be rendered a toothless INVESTIGATION examiner believed that death was caused tiger, a habeas corpus petitioner must be by a pulmonary embolism resulting from and expert wit In Mason v. Arizona, 504 F.2d 1345 9th her leg due to provided funds for lay Cir. 1974 the "effective assistance of a thrombosis that formed in nesses, and litigation expenses "as are Process immobilization caused by the paralysis detemtined by the statehabeas court to be counsel guarantee of the Due from the gunshot wound. petitioner’s Clause requires, when necessary, the al reasonably necessary for investigative expenses Or ap habeas case to be factually and legally lowance of habeas proceeding." pointment of investigative assistance for Defense counsel requested an inde presentedin his state pendent pathologist since medicalbooks Gibson v.Jackson, 443 F.Supp. 239, 250 indigent defendant’s in order to insure 1977. effective preparation of their defense by said there are numerous causes of a pal M.D. Ga. their attorneys." Id. at 1351. monary embolism, and since the 8 month

April 1990ffhe Advocate 44 length of time raised a complex issue of 1980. Williams v. United States, 310 A.2d 244, medicalcausation. The defense was self- 246-47 D.C. Ct.App. 1973. defense. PSYCHIATRISTS There are more favorable appellate cases PSYCHOLOGIST - DIMINISHED The South Carolina Supreme Court found when funds for a psychiatrist are at issue CAPACITY no error since 1 the autopsy demonstrated than in any other area. See, e.g., Blake v. In State v. Poulsen, 726 P.2d 1036 to the highest possible degree of medical Kemp, 758 F.2d 523 11th Cir. 1985; gunshot wound caused Wash.Ct.App. 1986 the defendant was certainty that the Lindsey v. State, 330 S.E.2d 563 Ga. the death and 2 there was no showing convicted of second degree assault of his 1985; United States v. Reason, 549 F.2d mother and father. He assaulted them that anotherpathologist would haveaided 309 4th Cir. 1977; Brinkley v. United his defense after they refused to allow him to make States, 498 F.2d 505 8th Cir. 1974; long distance phone calls. United States v. Tate, 419 F.2d 131 6th The Fourth Circuit held that the defendant Cir. 1969. was denied equal protection, due process The defense asked for funds to hire a and effective assistance by the failure to psychologist to determine if the defendant In State v. Gambrell, 347 S.E.2d 390 had organic brain disorder caused by be provided a pathologist since there was N.C. 1986 the court held that the defen a substantial question overan issue requir physical abuse that kepthim fromforming dant was entitled to psychiatrist where the intent to commit the assaults, or that ing expert testimony from its resolution, there was a sufficient threshold showing and since the defense could not be fully his capacity to form the intent was demonstrated. Under Ake, the question diminished. The defense informed the developed without professional assis for the threshold showing "is notwhether tance. court that the defendant had blows to his the defendant has made a prima facie head; had severe headaches; exhibited ir showing of legal insanity," but rather is rational behavioral changes; had fits of PHYSICIAN/PSYCHIATRIST - whether "under all the facts and cir rage, especially when drinking. PHYSICAL AND MENTAL cumstances known to the court at the time EVIDENCE IN SEX CASE the motion for psychiatric assistance is made,defendant has demonstrated that his The Washington Court of Appeals held In People v.Hatrerson, 405 N.Y.S.2d 297 sanity when the offense was committed that the defendant was entitled to funds to 1978 the prosecution put on an expert in employ a psychiatrist since Ake required psychotherapy who will likely be a significant factor." Id. at testified the 394. funds where a defendant’s mental condi prosecutrix in this rape, sodomy, robbery tion is likely to be a significant factor at trial was a "compliant," "obedient"person trial. "suffering from an anxiety reaction" who If "a reasonable attorney would pursue an would not try to escape from a captor but insanity defense," then funds for a QUALIFICATIONS OF DEFENSE EX would rather appease them. The state’s psychiatrist must be forthcoming. PERT physician testified that the prosecutrix Guither v. United States, 391 A.2d 1364, was examined and that seminal fluid was 1367 D.C.Ct.App. 1978. The trialjudge The defense is entitled to an expert whois found in her vagina; and he concluded she should tend to rely on the judgment of at least as qualified as the state’s. had sexual intercourse within 72 hours. defense counsel who has theprimary duty Thornton v. State, 339 S.E.2d 240 Ga. of providing an adequate defense. Id. 1986. The Court held it was error for the trial court to deny money forthe defense to hire A defendant is entitled to at least one QUESTIONED DOCUMENT a physician and psychiatrist. The de psychiatrist of his own choice with an ANALYST fendant’s defensewas that the prosecutrix adequate opportunity forexamination and went with him voluntarily and no sexual consultation. Having access to a court The defendant in People v. Mencher, 248 intercourse tookplace. See also Turner v. appointed psychiatrist who was not fully N.Y.S.2d N.Y. Sup.Ct. 1964 was en Commonwealth, Ky., 767 S.W.2d 557 qualified for a 50 minute interview is not titled to money for a handwriting expert 1988. enough. UnitedStates v. Chavis,486F.2d where there was an issue of whether a 1290 D.C. Cir. 1973. detective signed a reportwhenhe testified that the signature looked like his but was POLYGRAPH nothis. See also UnitedStates v. Fogarly, Courts have recognized that psychiatric 558 F.Supp. 856 E.D.Tenn. 1982. evaluations are demanding efforts and in digent defendants are entitled to a SEROLOGY psychiatrist that meets the demands of the A defendant is entitled to funds to hire a profession: It is error to fail to appoint a defense polygraphist when he makes a showing requested expert to test the seminal fluid that such a service is "reasonably neces The basic tool of psychiatricstudyremains removed from the vaginal tract of the vic sary" to a defense "as effective" as one thepersonalinterview, which requires rap tim in a rape case. Bowen v. Eyman, 324 which would be presented by a defendant port between the interviewer and the sub F.Supp. 339 D.Ariz. 1970. with adequate resources. The trial court ject.... More than three or four hours are can consider the following factors: 1 the necessary to assemble a picture of a man. STATE"FACILITIES" INADEQUATE cost of the test; 2 the purpose forneeding A person sometimes refuses for the first several interviews to reveal his delusional the test, 3 the defendant’s defense; 4 thinking, or other evidence of rmntal dis In Marshall v. United States, 423 F.2d whether the defendant has a criminal ease.... From hours of interviewing, and 1315 10th Cir. 1970 the defendant re record which might deter him from tes fromthetests and other materials, a skilled quested money for defense investigative tifying absent the ability to counteract the psychiatrist canconstruct an explanation of assistance. The trial court appointed the introduction of the priors with the results personality and inferencesabout how such FBI. The 10th Circuit determined it was of the polygraph. Commonwealth v. a personality would react in certain situa plain error to do this. Lockley, 408 N.E.2d 834, 838 Mass. tions....

April 1990/The Advocate 45 "Just as an indigent defendant has a rigirt to appointed counsel to serve him as a loyal advocate he has a similarright under properly proven circumstances to inves FEDERAL FUNDS FOR EXPERTS FY’89 tigative aid that will serve him unfettered by an inescapable conflict ofinterest. The Bureau, following leads furnished by an Expert Fee OtherExpenses Total accused, is obviously faced with both a duty to the accusedand a dutytothe public 1. Investigator 990,493 172,994 1,163,487 dilemma, and danger, is 2. Interpreter 439,032 69,852 508,884 interest. The 3. Psychologist 41,438 2,070 43,508 glaringly apparent in the events that cc 4. Psychiatrist 288,718 17,047 305,765 curredin the case at bar." Id. at 1319. 5. Polygraph 30,774 577 31,351 6. Documents 55,746 12,429 68,175 STATISTICS AND DEMOGRAPHY 7. Fingerprint 18,027 439 389,161 8. Accountant 225,877 163,284 389,161 9. Chemist 21,977 352 22,329 10. Ballistics 4,130 1,227 5,357 11. Other 736,901 The Maine Supreme Court has decided 120,372 857,273 that a defendant is entitled to money to hire experts in statistics and demography GRAND to analyze the composition of the grand TOTAL 2,853,113 560,643 3,413,756 july. Defense counsel produced evidence that there were 148,000licenseddrivers in the country butthe country voter registra tion list contained but 90,000 persons. State v. Anaya, 438 A.2d 892 Me. 1981. defense obtained a writ of habeas corpus TRAVEL ad testficandum forthe federalauthorities to produce the prisoner, and an order was FUNDS RESOURCES entered to require the county police to AVAILABLE FROM DPA transport the prisoner to Kentucky but changed its mind on motion of the Com In United States v. Gonzales, F.Supp. 838 monwealth, saying the defendant could D.Vt. 1988 the Court determined, "The have deposed the witness when in the plain language of [18 U.S.C. I section county jaiL 4285, economic realities, and the dictates of the equal protection clause support the finding that, after appropriate financial The Court held the defendant had a inquiry, this Court may order the govern statutory and constitutional right to have ment to pay or arrange for the noncus thecosts of transporting the material wit todial transportation of defendant from ness paid by the county. See also Han Texas to Vermont to enter his guilty plea." cockv. Parker, Ky., 37 S.W. 594 1896; Id. at 842. Federal Rule ofCriminal Procedure 1706

WITNESSES CONCLUSION This Country’s major contribution to the advancement of civilization is that it KRS 421.015 in-state andKRS421.230- enacted a Constitution which has 1 in 270 out-of-state detail payment stitutionalized fairness and its process, authorization for witness fees. OAG 75- and 2 assured that if fairness and a fair 682 Nov. 17 1975 states that KRS process is not available to everyone, it 42 1.230 only applies to prosecution wit should not be available to anyone. This nesses. bedrock of fair treatment has its greatest meaning when an indigent person’s In Kathi S. Kerr v. Commonwealth, freedom or his life is at stake at the hands Ky.App., No. 86-CA-2564-MR Feb. 5, of the state. The degree to which fairness A compendium of authorities supporting 1988 unpublished the defendant was is assured an accused individual is in our an indigent defendant’s right to funds for convicted of trafficking in cocaine and hands as criminal defense advocates. The experts, counsel, transcripts and witnesses marijuana with intent to selL extent to which fairness and its process is available for $10.00. Send a check pay possessing expands is up to us. The increased access able to the KY State Treasurer to: The defendantand her paramour,a foreign of indigents to funds for experts in their national, were arrested on an informant’s Ed Monahan national pled guilty and criminal defense is no small part of the tip. The foreign ever expanding concept of process that is DPA stated in his confession that Kern had not 1264 Louisville Road participated in the illegal sales. Several due each ofus. Frankfort, KY 40601 months before trial, defense counsel sub 502 564-8006 poenaed the foreign national who was in ED MONAHAN the county jail. Prior to trial, the foreign Assistant Public Advocate national was transferred to a Florida Director of Training federal prison for deportation. The Frankfort, KY

April l99OtThe Advocate 46 EDUCATION OF KY INMATES Average Inmate’s Level ofAchievement is 6th Grade

Ky. Corrections Education is directed toward the educational program, they are allowed to Ifyou needfurther information about this pro the effective, cognitive and educational las work at their own pace and find that they can gram or ifthere is no programin your areaand provementoftheprison population. Theroleof succeed. you would like to get one started, pleaselet me education and vocational training is extremely know and I would be happy to work with you. importantsince 80% ofthe populationhave not Ms. Wilburn stresses that a diploma is a mini completed high school, and the average level of mal qualification for a good joband that as the PAUL F. ISAACS achievement is 6th grade. The peruentage of women are responsible for their children and Public Advocate enrollment is increasing sothat currently 62% families an education helps them make better of the inmate population is participating in decisions. She said that somany women end up educational programs. in prison simply because they make poor decisions. She teaches a class in Personal THE KY LITERACY Education classes are offered at several levels; Development that explores decision-making, COMMISSION Literacy, with and 80% completion rate, Adult values, self-concept and short/long-termgoals. Basic Education, GED, Associate and Bach For more information on the educational elor’sdegrees, and Computer Literacy. programs available to Ky. inmates write or call: More than 400,000 Kentuckians are COMPLETION 1989 DONE. KENADY, Ph.D. functionally illiterate. Principal Assistant to the Commissioner 47% of adults in Ky. 25 yearsor older GED 414 Superintendent ofCorrections Education do not have a high school diploma or a Literacy 181 Corrections Cabinet G.E.D. Frankfort, KY 40601 8thGrade 433 502 564-2220 More than 650,000 adults in Kentucky College have less than an 8th grade education. Associate Degree 46 Ky. counties with ahigher populationof Bachelor’s Degree 12 Sentenced to Read Program adult non-readers are also the counties Vocational Certificate 115 suffering from high unemployment, Occupational Title 665 higher crime, increased welfare, and low Personal Development incomes. Life Management rJfl...t..rfl.fl4.efl.a...flfl.- Employability Skills 1,938 The General Assembly in 1988 created a new Some of the trades offered in Vocational section of KRS Chapter 533 codified as KRS The Commission duties include, but are Education are interiorfinishing, building main 533.200 which provided that anyone con not limited to: Formulating a statewide tenance, carpentry, meat cutting, and elec victed of a misdemeanoror felony who is not a strategy and program plan for adult tronics. Life Management and Employability high school graduate or has a G.RD. may be literacy Review andrecommend grants to Skills are strongly encouraged, since education sentenced to attend and successfully complete public and private groups to support must be supplemented with the information aprogramdesigned toimprovehis/herreading, literacy programs; Review and evaluate necessary for success in all areas of life to living and employment skills as a form of literacyprograms andreportfindings; Pro which a formerprisoner returns. Life Manage probation in addition to the other requirements vide public information and education to ment classes explore: problem solving, com of probation. Of course, any person who promote literacy; Enlist the support of munication, budgeting, getting ajoband stress receives this type ofprobation and who fails to business and industry for literacy management. Employability classes teach successfully complete, attend, or make pro programs. practical skills including: self-assessment in gress toward successful completion of the pro terms of skills, attitudes, aptitude, values, inter gram may have their probation revoked unless Established as an agency of the Education est and personality, career exploration, short thefailure is due to amental condition, retarda and Humanities Cabinet, the Commission and long-term objectives, resume and cover tion or reasons beyond the offender’s control. began a state-wide effort to combat letters, filling outapplications, findingand fol Kentucky’s high illiteracy and to address lowing up on jobleads, interviews, and how to The program is administered by the Dept of theproblem. The Kentucky LiteracyCom keep a job. Corrections education strives to Education who licenses qualified persons or mission now supports, through grant prepare each inmate to notonly find employ organizations to conduct these type of pro awards to local communities, a large ment upon release, but to be motivated to con grams. Inordertodeterminewhois conducting volunteernetworkresponding to theneeds tinue advancementsin his/her chosen field. theseprograms in your area, you should contact and goals of 113 Kentucky counties. the Ky. Literacy Commission. I am sure many Cynthia Wilbumn. MA., a teacher at KCIW, of you are aware of this statute and have been Audrey Y. Tayse said that education is vital to a correctional advocatingits use on behalfof your clients but Executive Director program, because so many women come to if not, it is an extremely worthwhile program Kentucky Literacy Commission corrections without a diploma and without the for our clients.This is another tool to usein our 110 U.S. 127 South most basic skills. Not haviig completed their aggressivesentencing advocacy. Frankfort, KY 40601 education contributes to a sense of failure. In 502 564.4062 or 800-654-7323

April 1990DtTheAdvocate 47 COMPUTER USES FOR THE LAWYER! SMALLLAW OFFICE

Mike Williams Jam not a "Computer expert." Jonlyknow hcrw each time they only require totypemargfraallywellandhow:ofollowdjr minor most attorneys would either do this or revisions to a basic format. There are cer write it down anyway, but it isjust as lions well enough so that computers/word tain easy processors work veryweilfor me. In the begin motionsinernoranda filed in almost to type it into a document to be savedto a ning,! used Apple lIe andJic computers, I now every case to preserve issues e.g. dis computer disk. You then have a ready- use theApples andan IBM PS2. Myfamiliarity covery issues. The time saved from made "witness outline," the contents of with software programs hasgrown to include having to redraft or redictate is time that the statement which canbe added, deleted, Appleworks, PFS WRITE, Displaywriter 4, can be used forother matters. or moved around to preparefor trial, thus Microsoft Works2, and Wordperfect5. eliminating "lastminute" writing upon the inevitable legal pads. DON’T BE INTIMIDATED The words "...but counsel failed to preserve this issue..." are a very popular phrase seen in appellate court opinions. A Don’t get the impression this takes more First of all, computers are nothing to fear. nice feature of the computer is that it time to do than the "old way." All the user needs is an ability to read It doesn’t. makes routinely attaching appropriate It takes less time. As a matter of fact, in directions along with minimal typing memoranda of authority and tendered or the time it has taken you to read this skills. With the right word processing ders easy. Even if alljudges don’t require articleI could probably have amendedmy software your computerbecomes a "super it, you have a duty, in good faith, to protect basic pretrial motion file, printed it, and typewriter" which can store, retrieve, and your clients. It also makes your malprac copied it! You are probably already ac allow you to conect/add todocuments. It ticecarrierhappy whenyou appropriately cumulating the same information anyway, is notnecessary to know how to program preserve issues. just in a less useful form. A computer a computer, do routine maintenance or allows you to store and retrieve it in a "fix" one if it should "break." As it is AN ORGANIZATIONAL TOOL readily available, usable format. Your generally inexpensive to have it done by productivityis substantially increased, be Computerland, I just take my equipment cause there is no repetition of tasks. to them, and they take care of everything. The computer-assisted lawyer is better or ganized. Computer access gives you the capability to index state and federal STORAGE/RETRIEVAL From 1974-1989,1 was a sole practitioner decisions which are helpful to your cases, who shared space with3-4 other lawyers. with ease. Retrieval for incorporationinto Computer disks provide a more efficient I found a computer useful inmy practice motionsis a simplematteras well. Iusual means of storage of information. The mo oflaw to stay on topof the variety ofcases, ly keep a synopsis of opinions in a running tions, memoranda, witness statements, clients, and issues- a computer can make document. Surprizingly, to maintain such correspondence, etc. for my first capital that easy. It is particularly useful to a a file on the computer takes less than an trial which in hard copy completely filled lawyer who handles criminal cases. hour of work every few weeks. As 2 full sized file storage boxes could be opinions are published, I keep them in a carried in my suit coat pocket on disk! CREATION IREGENERATION "file," and then every week or so, Iupdate Instead of redrafting and researching new the file by typing in "key words" and the discovery, suppression, and in limine mo casecite onto the "document." Ultimately tionshnemoranda Irevise this material. As a part-time public defenderwithduties it saves me timeand frustration, as Iavoid that included 725 hours spent on a capital spending case, and as a civil practitioner who did an houror more looking for"that CONCLUSION quite a bit of "routine" motion practice, a case I read somewhere" whenI need it. computerbecomesindispensable as itper This article does not even "scratch the rnits a lawyer to createmotions, store them For trial work I have a basic "Trial Brief" surface" on the uses of computers for the for later reference, amend them for other form that contains items such as"Motions small general practitioner, but it gives a cases and to keep up with changing To Be Filed," "Evidence Requiring Foun few ideas forrethinldng the technology. If statutes, rules, and case decisions. dation Proof," "Suppression Issues," etc. you needmore information about the best By retrieving this basic for-rn and creating programs and anything related to this ar ticle, don’t hesitate to call. documents a "new document" for each new case and Youavoid the redrafting of by inserting information onto it as the case keeping the "basic" motions/memoranda develops, Isave an immeasurable amount on disks. Your secretary merely retrieves time preparation. MICHAEL L. WILLIAMS the document and make appropriate dele of of pretrial Assistant Public Advocate tions/additions. While Idon’t approve of Major Litigation Section filing "form motions," many necessary Before I learned to use a computer, I al Frankfort, KY pleadings,motions, etc. are sosimilar that ways dictated witnesses statements, and

April l99OfTheAdvocate 48 KENTUCKY PAROLE BOARD

On December 1, 1989, the Parole Boa,d from a list ofthree names submitted to him The Parole Board is the primary releasing Issued Its 1989 Annual Report, we by the Commission on Corrections and authority for individuals confined in the reviewedsegments of the reportprevlously Community Service, who interviews Department of Adult Institutions and the IntheDecember, 1989 and February, 1990 candidates. By statute, there Department of Community Services and of The Here’san excerpt prospective Issues Advocate. can be no more than four members front Facilities of the Corrections Cabinet. All from the report that gives Information on convictedfelons,except those still serving the members of the Kentucky Parole the same political party. The Governor Board. also appoints one of the sevenmembers as on a sentence of Life Without Parole and Chairman who retains that position forthe a sentence of Death are reviewed by the duration of his term. Parole Board when they are eligible for a KENTUCKY PAROLE BOARD parolehearing. Parole eligibility is deter The 1988 General Assembly passed a bill mined by bothstatuteand regulation. The CHAIRMAN which was signed into law by Governor Boarddetermines whether eachconvicted Wilkinsonwhich established a quorum of felon is to be releasedby parole or by the John C. Runda, Ph.D. three Board members to conduct parole full service of his sentence. Parole release hearings. This legislation permits the decisions are made by the application of MEMBERS Board to meet an increasingly demanding the criteria as set forth in the Board’s schedule by holding simultaneous hear regulations. Philip R. Baker ings at different sites as necessary. With Helen Howard-Hughes the anticipated addition of new prisons, LanyR.Ball this flexibility will prove tobe invaluable. Lou C. Karibo James W. hider NewtonMcCravy, Jr.

ADMINISTRATIVE LAW PAROLE CONSULTANT TO ATrORNFIS JUDGES ou need to It u have a client scheduled bra Parole Hearing. assist m*xinixe his chances of obtaining a parole. I have the expertise to E. Deese James you in helping your client. Keith Hardison * Parole Hearing - Preparation For RESEARCH ANALYSTS * Preliminary Parole Revocation Hearings * PissaI Parole Revocation Hearings BrendaAdams Howard * Special Parole B.evocations Charles R. Little * Sentencing - What Is Best For Parole2 Margaret Kinnaird * Plea Bargaining On Current Charges Sharon Parrent - The Effect On PatoIs * Specis Consideration in Sex-Related Offenses STAFF My Experience includes: * Past member o the Kentucky State Parole Board - Six Yean. - Section Su Sandra Hill Administrative Assisted in the preparation of current Kentucky Parole Board pervisor Regulations. Brenda Smith - Legal Secretary Senior * Member o Sex Offenders Treatment Subcommittee of the Ken - Victim Coordinator JackieTucker ruclty Coalition Against Rape and Sexual Assault. Mary Campbell - Secretary Sandy Davis - Secretary Educatioru Angie Lee - Secretary * Bacheloc of Arcs Degree in litical Science * Associate of Arts Degree in Business THE PAROLE BOARD AND ITS MEMBERS References Available Upon Request DENNIS L LANGLEY 1359 Winston Avenue The Parole Board is comprised of seven touisvill; Kentucky 40205 members each of whom is appointed by 502 454-5786 the Governor fora term offour years. The 148C0 525-8939 Governor selects each Board member

April 1990/The Advocate 49 The following Parole Board members were currently serving inthat capacity on June 30, 1989. DO YOU NEED AN INDEPENDENT

John C. Runda, Ph.D. - FINGERPRINT ANALYST? Chairman Democrat, Madison County CONTACT: *Appoinj by Governor Collins, May 23,1986 toMay 23, 1990. *Appointed by Governor Collins as Chairman, December 7, 1987. *Bachelor of Arts,Sociology, Thomas More College. *Master ofArts, Sociology, LATENT PRINT ANALYSTS The Ohio State University. qi rucx *Doctor rwc. ofPhilosophy, Sociology, 1J4.J. Te.ctecI an The Ohio State University. Certifiel -Dissertation, "Religiosity and Racial Prejudice". *Experience -Faculty member andChair man, Department of Sociology, Social JESSE C. SKEES Work and Criminal Justice, Thomas More College; SARA E. SKEES Owner, Berea Health Care Center. 3293 Lucas Lane Frwtkfort, ‘Cpttucky 40601 Philip R. Baker - Republican, Pulaski County 502695-4678 * Appointed by Governor Wilkinson, December 16, 1988 to June 30, 1992. *Bachelor of Science, Cumberland College. Professionals Serving Professionals Minute *Master of Arts, EasternKentucky to the Detail University. *RaPA 1, Eastern Kentucky University. *Exp&ience - Teaching, 8 years; Principal, 17 years. Louis C. Karibo - Democrat, Fayette County Larry R. Ball - Republican, Jefferson County *Appointed by Governor Collins, Being A Kid- Not Easy December 7, 1987 to June 30, 1990. *Appointed by Governor Collins, *Bachelor May 23, 1986 to May 23, 1990. of Arts, University of Ken tucky. Knight-Rider Newspaper’s recent collec *Bachelor of Science, tion of statistics from the Children’s *Experience - High School Teaching, S Murray State University. Defense Fund, the1988 CensusData, An years; Kentucky State Police, 3 years; *Expermence - Juvenile ProbationOfficer, nual Crime Reports dating from 1985- Jefferson County, 9 years. Vocational Rehabilitation, 1 year, Private 1988 tells the story of how It’s not easy Industrial Management, 20 years. being a kid in America. Consider what happens to children in America IN ONE James William Grlder - - DAY. Republican, Casey County Newton McCravy, Jr. *Appointed Democrat, Jefferson County by Governor Wilkinson, In just one day , an average: March 1, 1993. *Appointed by Governor Ford, March 3, 1989 to 1972-1974. *Bacbelor of Arts, Eastern Kentucky *Re..appointed *2,795 teen-agers become pregant, 1,106 University. by Governor Ford, 1974. have abortions, 372 latermiscarry. *Re..appointed by Governor Carroll, * *Expejjence - Legislative Research 1.027 babies are born drug- or alcohol Commission, Staff Member, 12 years. 1978. exposedin utero. *Re.appointed by Governor Brown, *67 babies under one month old die 1982. *105 babies under one year old die. helen Howard-Hughes - *Reappointed by Governor Collins, 2ll childrenarcarrested for drug abuse. Democrat, Fayette County *437 children are arrested for drunken *Appointed Brown, December 7, 1987 to June 30, 1990. by Governor *Bachelor of Arts, University of driving. March, 1982. * 10 children die from gunshot wounds. Louisville. *30 *Re..appointed by Governor Collins, *Master Social Work, children arc wounded by gunfire. May, 1986 to March 1, 1989. of Science of * 135,000 children bringa gun to school. Kent School of Social Work * *Bachelor of Arts, Social Science, 1,512 teen-agers drop out of schooL *Experjence - Social Worker, 8 years; *1,849 children are abused or neglected. Marshall University. Social Work Administrator, 6 years; As *6 teenagers commit suicide. *Experjence - Executive Director, sistant Professor, University of Louis *3,288 childrenrun away from home. Kentucky Commission on Women, ville, 2 years. * 1,629 childrenare in adult jails. 4 years; Executive Director, Kentucky Occupational Safety and Health Review Itapi-inted with panninl frizn tha Fotxuary 1990 Iwao Commission, 2 years. of tha ABA Jows,4 Tsr Lawysrt Magszhr. publWssd by hr Asrgncan Bar jr*

April 1990/The Advocate 50 JUSTICE POWELL’S HABEAS PLAN TAKES BEATING FROM SENATE COMMITTEE; BIDEN AND ABA PRESENTALTERNATIVES

Excerpted, in part,from AM-LAWNew: Some participants at the hearing also had for filing a federal habeas proceeding to Service report] problems with the dual system, wherein one year, and would allow successive states can decide whether or not to par petitions if the condemned can show With momentum mounting to shorten the ticipate. Committee Chairman Senator either that he or sheis raising a new claim time it takes either to reverse or carry out Joseph Biden asked, "Should a man or not previously presented, due to state ac a sentence of death, the U.S. Senate woman be sentenced to deathbased on the tion, new law, or new facts; or that there Judiciary Committee opened debate ability or inability of the state to provide are new facts which, if shown, would un recently on the Powell Commission Plan competent counsel?" Indeed, the Ninth dermine confidence in the juiy’s deter tolink astrearnlining ofthe federal habeas Circuit’s Reinhardt said, if a state is un mination ofguilt; or, where not allowing process to a state’s willingness to provide willing to provide competent lawyers for a successive petition to be heard would competent counsel for the condemned. people accused ofcapital crimes, it should result in a "miscarriage of justice." AM-LAW News Services Ann Wool not be allowed to impose the death sen Biden’s plan also includes provisions for ner. [See also lastmonth’s "Greasing the tence. But the chief issue fordetractors is defining the qualification of counsel in Skids: The Rehnquist Committee Reports the virtual elimination of successive deathpenalty cases, and forcompensating on Federal Habeas in Capital Cases".] habeas petitions. "Are we going to let counsel, consistent with the Anti-Drug people lose their lives because a lawyer Abuse Actof 1988. The Anti-Drug Abuse What emerged from these Senate hearings defaulted and neglectedto raise an issue?" Act standards require that a capital lawyer is the existence of deep divisions within Chief Judge Lay of the Eighth Circuit have five years experience at the trial the federaljudiciary about the advisability asked. id. level, and three years of appellate ex and even the propriety of the controversial perience, to qualify for representationofa proposal to severely limitthe habeas peti Biden asked "What ifa lawyer for a death capital defendant. tions of Death Row inmates. Justice row inmate learned that the prosecution Lewis Powell, Jr. testified for two hours had put up perjured testimony at the A task force of the Criminal Justice Sec before the committee, followed by a panel prisoner’s sentencing hearing? If the tion of the American Bar Association has of three U.S. Court of Appeals judges lawyer learned of the perjury after the recently releasedits recommendations for from the West and Midwest, whoattacked prisoner’s first trip through federal changes in the habeas process. This task the Powell proposal. AM-LAW News habeas, could the inmate still appeal the force recommended a provision requiring Services Ann Woolner. fairness of the death sentence under the that counsel be provided at all stages of a proposed streamlining?" "That rarely capital case, in all courts, that such coun The judges were not kind to the Powell ever happens," Powell responded to sel should meet ABA Death Penalty Commission’s recommendations: Biden. Finally, he said, "Ifthe trial judge Standards for qualification as capital "Finality and speed ... seem to outweigh is satisfied there was perjured testimony, counsel, and be compensated in accord the concerns forfairness and justice," tes he or sheis going to do something." id. ance with Anti-Drug Abuse Act stand tified 9th Circuit U.S. Court of Appeals ards. Although the ineffectivenessclaims Judge Stephen Reinhardt regarding the None of the other judges at the hearing, couldnotbemade against post-conviction proposal. Id. impassioned assaults also supporters or detractors, said that the orhabeas counsel, under these guidelines, came from Chief Judge William Hol Powell Plan would allow a judge any dis the failure to provide qualified counsel loway, Jr., of the 10th Circuit and Chief cretion at that point inthe habear process. would considerably broaden the discre Judge DonaldLay ofthe 8th. The 6 month Id. tion and power ofafederal court to review provision is too short, these judges said, state court judgments. the committee spelled out no minimum With the amount of resistance shown to standards for habeas counsel; the plan the Powell Commission proposal by In additionto the longerlinritations period does nothing toward providingcompetent Senators Biden and others, attention has of one year given under Biden’s plan, the lawyers for trial and direct appeal; and the begun to focus on other proposal that will ABA-CJS task force would protectadeath panel failed to come up witha factual basis likely be introducedin the next Congress. row inmate by allowing a stay of execu for its recommendations. These judges Part of the motivation of all concerned is tion to be extended so long as pending attributed the delay in death penalty cases to avoid the more onerous proposal of matters were diligently prosecuted. to error at the statetrial or appellate level. Senator Strom Thurmond, R-S.C., to en "It’s probably because so manyconstitu tirely abolish any federal review of state This ABA Task Force also would allow tional errors are committed in state convictions. successive petitions tà be filed when the proceedings that the federal courts more liberal Biden standards were met, proceedslowly," Judge Reinhardt argued, Committee Chairman, Senator Joseph and unlike the Powell Committee, would noting a 2/3 reversal rate, at the habeas Biden, D-Del., wrote a proposal similar to not find procedural default where the level, of state convictions. Id. Powell’s, except that it extends the period failure to raise the claim was a result of

April I99OITheAdvocateSl decisis

counsel’s ignorance or neglect", or when failing to do sowould constitute a miscar riage of justice. THE DUTCH UNCLE

The Litigation Section of the American Bar Association has also put forward a Although the solicitor general ofthe United States is sometimes called the "tenth justice" of the proposal which strongly resembles the Supreme Court, therenow seems to be a real "tenth Justice." Section’s proposal, ex Criminal Justice Since his retirementfrom the Court in June 1987, Lewis F. Powell, Jr., now 82, has redefined cept that it would be directed almost en the job description of a former Supreme Court justice, emerging as a combination trouble tirely toward the problem of motivating shooter, Dutch uncle and general justice-without-portfolio. states to provide competent counsel to capital defendants at all stagesof proceed Like other retired justices beforehim, Powell sits several times a year by special appointment ings in all courts. No provision is made to to the federalcourt of appeals, often in the Fourth Circuit barhabeas petitions,by a statute oflimita tions or other similar device. In fact, the Two eventsin the pastyear, however,mark Powell’s retirementas a uniquely productive time. Litigation Section would establish proce First,he wadedinto the controversy overfederal habeas corpusremedies in death-penaltycases, dures to obviate the necessity of periodic chairing for theJudicial Conference theAdHocCommittee onFederalHabeas Corpusin Capital recourse to the federal courts to stay an execution. The Powell Committee Report, releasedlastAugust. offereda legislative proposalfor control Yet another proposal has been advanced ling post-conviction litigation while attempting to ensure adequaterepresentation for capital by Senators Strom Thunnond of South defendants. Carolina and Phil Grammof Texas, which remove muchof the federal court’s In October, Powell delivered a remarkable address to the Association of the Bar of the City of would New York in which he chided the nine active justices for neglecting constitutional precedent, jurisdiction in habeas cases. forfollowing ideology rather than case law, and for deciding too many cases withoutainajority opinion. Esther Lardentof the ABA’s Post-convic tionDeath Penalty Representation Project Formany yearsPowell helpedpull the Courttowardthe middleby pressingfor relativelynarrow calls the legislative situation complex, but rulings and attending carefullyto the specific factsof each case. be clarified said the situation will likely the Court back following Congress’ holiday recess. Now,no longerparticipatingin the Court’s weeklyconferences, Powell pointed to the middle by reminding thejustices of the judicial values he urged while on the Court Both the Biden and Powell Committee proposals will be "inplay"in the congres Unprecedented arena, as will the Thurmond sional Restraint." and he stressed Gramm proposal to substantially gut The subject of Powell’s address was "Stare Decisis and Judicial three primary benefits from the stare decisis: 1 enhancing the public statureof the Court by habeas review, according to Ms. Lardent. unelected judges free to write will likely demonstrating that it follows precedent and is "not composed of The ABA Litigation Section their policy views into law"; 2 providing stability in the law; and 3 simplifying the work of get behind the Criminal Justice Task the courts. Force’s proposal. Debate on the Biden and Powell proposals will begin in early Powell recognized that some overruling of outdated precedents is necessary. Reviewing the 16 February; it is also in that month that the years of the Warren Court and the 17 years of the Burger Court, he concluded that throughout ABA proposal will be introduced in some both periods the Court overruled prior decisions in fewerthan four cases per term. form, if at all. When he turned to last term’s decisions, however, Powell expressed concern about "recent The most direct effect of such legislation threats to stare defenders, according on trial level public He also commentedpointedly on South Carolina v. Gathers 109 S.Ct. 2207 [1989, in which to Ms. Lardent, is the likely change in four dissenting justices voted to overrule a case decided only two years earlier, Booth v. qualifications required of attorneys in Maryland 482 U.S. 496 [1987]. death penalty cases. Powell noted approvinglythat "Justice White, who had dissented inthe Booth case, declined to adjourned without overrule it," and he added with considerably less approvalthat Justice Scalia’s dissent "argued Although Congress axe not supported by action limitinghabeas review, that ajustice must be free to vote to overrule decisions that he or she feels taking any prior precedents." the fixed determination of Chief Justice the Constitution itself, as opposed to others to Rehnquist, Justice Powell, and aquiet dig at Scalia. observing that Scalia’s idea of relaxing stare their perceived prob In a footnote,Powell inserted likely do something about decisis hadbeen expressed in 1949 by liberal Justice William 0. Douglas, who is not a 1cm, will likely result in continued efforts model for the conservative Scalia. to curb such review. With support for more moderate proposals surfacing, there In plain language, Powell added that "this view of stare decisis also haslittle to commend it," promise that if there is legislative and that "elimination of constitutional stare decisirwould representerplicit endorsement of the is some itis. Thiswould undermine action on the issue, the final productwill idea that the Constitution is nothing mom than what fivejustices say notbe as draconian as the original Powell the rule of law." Committee recommendation. But there are certainly no guarantees. Reprinted with permission of the Indiana "Reprinted v.ith permission from the March, 1990 issue of the ABA Journal, The Lawyer’s Defender,December, 1989 issue andtheFidton Magazine, published by the American Bar Association." Co. Daily Report, 190 Pryor Street, S.W., At lanta,GA30303,404521-1227. Copyrighted l989.

April I99OlTheAdvoCate52 LAWYERS DOING CAPITALCIVIL HABEAS CASES:A BAD MISTAKE

Like other states, Alabama faces easier, and for that limited purpose I send flight you will not meet the Red Baron. an acute problem in obtaining this letter. I couldn’t think of anybody to Good luck send it to other than the bar’s Task Force counsel for the defense of capital on Post-Conviction Capital Repre 3. What your opponent knows that you do cases. The following thought- sentation, and the board members and ex not know-There are 4 applicable bodies provoking commentary was con ecutive director of the Alabama Capital of law that your opponent and the federal tained in a lettersent to the Action Representation Resource Center, Inc., the judges know perfectly and you do not Group on Post-Conviction Capi organ that Albert Brewer and the task know at all, and you will never know as force kicked into life to work on this stuff. well as your judges or your opponent. tal Representation. They are 1 general substantive criminal Nov. Here are my lessons: law and criminal procedureneeded forthe Thisarticle appeared in the 1989 The non-death issues Brady, Massiah, AlabamaLawyer. Reprinted withpermis 1. Appointing civil trial lawyers in death Sandstrom, etc., 2 the operation and sion of The Alabama Lawyer and the penally cases is a bad mistake-I have constitutional overlay of the Alabama author, David A. Bagwell. believed this all along, and I believe it death penalty statute, 3 therules of"pro more strongly now than ever. Those of cedural default" and the ways to get Members, Action Group on Post-Convic you who have been on this project from around it and to stop lawyers from getting tion Capital Representation Board of the start know that I have never made a around it, and 4 the doctrines of "abuse Directors, Alabama Capital Resource secret of it. Lest you think Ihave keptmy of the writ." Center, Inc. mouth shut when I should not have, I should add that in the last 2 months I have To some extent in the "original habeas" RE: Civil Trial Lawyers in DeathPenalty filedmotions and mandamuspetitions and case you will have time to do adequate Cases appeals in 5 different courts 3 different research to try to catch up, but your lack one in the 11th Circuit alone based on of depth will clearly hurt at oral argument As you might have read in the newspaper, federal and state statutes which Ibelieved in the llthCircuit. my client Michael Lindsay was executed and still believe,though thejudges don’t on May 26. That, along withthe execution to require the appointment oflawyers with Where your ignorance will clearly hurt ofmy client Wayne Ritterin1987 the last 3 years’ federal or 5 years’ state you is in "the subsequent habeas case," manexecuted in Alabama, puts me in the criminal experience. discussed next. unique and unenviable role ofhaving rep resented, at the time of execution, 50% of My strong opinion is that the public needs 4. The "SubsequentHabeas Case"-You all the people executed in Alabama in the to hire some death penalty public and all civil trial lawyers will say, "I plan last23 years, a fact! do not plan to list in defenders. If they bum out, then replace to give it my best shot at first, and not file Martindale-Hubbell. Considering my them, or pay them enough to keep them. those last-minute appeals like those God personal history’ it is remarkable. less commie civilrights lawyers."Sure, so Obviously, this is not likely in the short did L After a Memorial Day weekend of rest, run, at least until 105 or more middle-aged fishing and skiing, I am moving on in my civil trial lawyers get galvanized by the What happens is that after you have filed life, never to take another death penalty experience Ihave had, at which point the and litigatedyour first habeas corpus case, caseeven if they disbarmeformy refusal politics of it may change. The rest of this therewill be some new development in the there are 105 on death row there, I think, letter proceeds on the assumptionthat or law in the supreme court or insome other and one or two more from Mobile alone dinaiy civil trial lawyers will continue to circuit which on the merits, would entitle are convicted every week, it seems, but be appointed in death penalty habeas you to relief. You may learn about it on there are lots more lawyers thanthat. Like cases. your own, or more likely some "death those who served in WWII and Korea, I penalty expert" will tell you about it figure I’ve done my duty, andthe next war 2. Your opponent-Your opponentwill be maybe the week before theexecution. Or, can be fought by somebody else. Ed Carnes of the Attorney General’s of you may be unlucky like I was, and get fice. He is vely, very bright, he has a appointed for the first time after the first Before!move on inmy life,though, lowe narrow specialty, and he knows it cold. He habeas, and only the week before the ex it to those 105 or more civil trial lawyers could beat anybody in the county on this ecution. My experience is that a second whowillbedraftedinthenexttwo years subject he is also, inmy experience, en habeas case is simply a normal and expec or so, to do what I can to pass on my tirely fair and ethical. On your first solo tablepart of the processfora good lawyer. lessonsto somebody, so their role will be

April I99OtfheAdvocate53 Just as a spring bass fisherman who does What was not raised in state court by the FOOTNOTES not get his lure caught in the stumps and trial or appellate lawyeroften is even more bushes is notcasting In therightplaces, so important My practice is entirely civil. I never than what was raised, and only volunteered for such too the habeas lawyer who does not get an experienced death penalty hand can cases. When ap involved in a subsequent habeas cas may spot that. pointed, I politely resisted appointment. I Anybody who thinks a middle- do not consider it the not be serving as effectively as possible. aged civil trial lawyer can do that is just duty of civil trial lawyers inbig firms to handlesuch cases, wrong. any more A subsequent habeas case with an out than it is the personal duty of standing metropolitan dermatologists to fill the gap execution warrant and date is to Somebody not me needs to provide an of obstetrics a first habeas case as "SpaceMountain"is experienced death in rural counties both are penalty hand at the out public problems requiring public solu to riding to church with your father. In set to read the whole record and to spot tions. Almost both my cases it involved taking a brand and listthe issues alone among"death penal to be followed up by the ty lawyers," I don’t even care much new issue-cold and with absolutely no civil trial lawyer. whether we have time for preparation-from the district the deathpenalty or not I generally favor it because mad dogs court through the court of appeals to the As far as I know, nobody is doing that. U.S. Supreme ought todie, but! have occasional qualms Court in less than 3 and a that Jesus might not agree with that, and I halfdays, the days immediately preceding b. Newsletter-Expecting middle-aged execution. am supposed to consider every now and the Spicing up the process are civil trial lawyers to be able to keep up thenwhathe might do andtry to do rough the unexpectedcalls from the AP, UPI, the with death penalty developments is a lythe same. local press and the television and radio serious mistake, Somebody not me stations, theACLU, Amnesty Internation needs to compile and send a newsletter 2Just to let you know the rush, I actually al in London, women in Maine who want every two weeksor month to point outhot faxed a handwrittennote a to make sure you really believe "supplemental yourclient new deathcases and hotnew deathissues. brief’ I guess to the U.S. Supreme Court is innocent and that you are working hard This is the only way to help avoid the while my stay motion was pending at 5:30 enough and-the most fun yet-funeral "abuse of the writ" trap. If nobody will CDT 6:30 EDT with an execution set homes. undertake such a task, at a minimum that evening. The motion to stay was somebody ought to suggest that the denied one minute later. There is no time Here is where your lack of depth will kill lawyer’s firm subscribe forone yearto the forresearch then. you, on the doctrines of "procedural bar," Criminal Law Reporter, or whatever else "successive habeas" and "abuse of the passes in the trade as a newsletter. writ," the common battlefields of succes sive habeas. In addition, since you will Even better, but more labor intensive, be going coldon a new case involving an would be for somebody to maintain a cur unfamiliar area, your lack of depth wifi rent listing of the issues in each pending Racist Joke in Jury hurt. death case, with bullet memos to all Room lawyers involved in a particular issue. You will spend all of your available time physically moving papers to and from in c. Abuse of the writ advice-Somebody creasingly high courts, one each day if needs to tell the appointed lawyer that you are lucky. You will be battling with there is a high though unquantifiable The illinois Supreme Court ordered a unfamiliar precepts, and everybody else probability that he/she will be involved in retrial fora blackman convicted ofmurder involved-the judges and your op a subsequent habeas case on short notice and sentenced to death by an all-whitejury ponent-will know the rules cold. based on some new development, and that because threejury members said they read a high priority during the original habeas a racistjoke in the jury room. At the end, the court will enter an order phase should be mastering the "abuse of A courthouse janitor discovered a saying that your failure to have either the writ" and "successive habeas" and mimeographed copy of a racist joke and known about or even to have anticipated procedural bar issues and, particularly, turned it over to the bailiff, who notified that new development in the unfamiliar every loophole and exception and ground the trial judge. The trial court denied the area of death penalty law makes your in them. defendant’s motion for a mistrial, but the filing the case "an abuse of the writ." supremecourt reversed. Therefore you lose, and your client dies. This cannot be learned in the last minute, That day, usually within hours. when every second counts just to get the Justice Goldenhersh held that prejudice to the defendant will be presumed in "such paperwork on the last Federal Express intolerable circumstances." He surmised At least, that is what happened to me in plane to Atlanta, or the last fax to the that the failure of the jurors to bring the both cases, and it will likely happen to supreme court clerk’s office.2 material to theattention of the court could most of you. be "indicative ofeither lack ofappreciation Goodluck to you if you arenext. I am not. for their responsibility as jurors, or that 4. What can be done to help civil trial they did notconsider it offensive." lawyers in deathpenally cases-Just from Very truly yours, seeing what Ineeded, Ihave a pretty good The court refused to disseminate the"scur what can be done to help civil trial rilous material," saying "itsuffices to note idea David A. Bagwell that it contains denigrating, racist com lawyers in death penalty habeas corpus P.O. Box 290 mentswhichareinsullingtoblackpeople." cases. Mobile, Alabama 205 432-6751 a. Review of record to spot issues-The Illinois v. Jones, 475 N.E.2d 8321985 first thing that is needed is a review of the record by somebody who knows what he/she is doing, simply to spot the issues.

April 1990/The Advocate 54 PREPARING WITNESSES

In marketing testimony, the package is some If the only way to introduce necessary tes and watch others go through- and survive - the times as importantas the contents timony is through a "bad" witness, there are process. ways tolimityourrisks: Expose aweakwitness How easy witness preparation would be if one to as little cross-examination as possible; place THE CONTENTS only had to say, "Go into the court-room and a weak witness between strong witnesses; and tell the truth." Unfortunately, there is more to never open or close your case with a weak witness. A witness has an obligation to tell the truth. The it than that; the judgeorjury mustbe convinced lawyer’s obligation is to stress that fact. But that the witness’ story is true. Witness prepara sometimes it is necessary to help the witness tion is a form of marketing- the attorney is THE PACKAGE know what is true. There are three forms that packaging the truth in a witness sothat it will this assistancemight take: helping the witness sell to the trier of fact. I often tell witnesses that testifying is like in remember, convincing the witness that what he terviewingfor ajob. How a witness sits, looks, remembers cannot be accurate; and acknow There are 2 elements to this marketing process: sounds and moves- the impression he makes- ledging that the witness has no recollection is often more important than what he says. about a particular fact. *the package - the witness’s appearance, demeanor and attitude, which hopefully Dress is extremely important. I always en It is not uncommon- indeed, it may be un will impress the court or jury;and courage at least sports coats for men and con avoidable- for a witness to forget some details servative dresses for women. I used to tell ofsomething that tookplace awhile ago.There the contents - the witness’s testimony. witnesses, "Dressas ifyou’re going to church." is nothing wrong with refreshing a witness’s But thena client showed up for trial in a bright recollection, and there are several ways to do Before witness preparation even begins, the blue leisure suit, a flowered shirt, and a gold that. The first is simply to go over slowly what attorney needs to analyze his case to determine chain- that’s what he wore to church! thewitness does remember, asking questionsto what testimony is needed and what witnesses spur recollection. are available to provide it. As a general rule it is best to subject as few witnesses as possible Attorneys should always check how a witness physical or is dressed, preferably somewhere away from If a witness or client has given a previous to cross-examination. Thus, if the courthouse. If you are dissatisfied with the deposition or other statement, the witness documentary evidence is needed, try to intro duceit through a witness who would be testify way the witness looks, you can be sure. the should read it before testifying. This not only judge or jury will be as well. Don’t hesitate to helps the witness remember; it also guards ing anyway. send a client or witness home to changeclothes against impeachment. Bear in mind, however, if necessary. It may even be worth the expense that a non-privileged writing used before tes The next step is witness evaluation. Cases are to buy clothes for a client in order to make a timony to refresh recollection must be often won by deciding not to use a certain good impression. Considernot using awitness produced ifrequested. [Ifa clientinterviewhas witness; other arelost by using the wrong wit if dress or appearance cannotbe improved. been transcribed or written outby the lawyer it ness. Meet all prospective witnesses face to can safely be shown to the client to refresh partner face. When representing corporations, Witnesses can be seen and heard by jurors in recollection, since it remains privileged. See ships or other business entities, you often have many places. They can be seen entering and Sullivan v.Superior Court 197229 CASd 64, achoice of people who could testify to certain leaving the courtroom. They can be heard talk 105 CR 241.] facts. Sec who would make the most effective corridors restrooms. They may witness at trial for depositions. Don’t let ing in the or or even be recognized by jurorsin a store or bar. You should avoid letting any witness see a someone make the decision for you. The overheardcomment, the impolite gesture, document that you don’t want the other side to the flashy clothes or car leave an impression have. It’s better for thelawyer to use the docu You rarely have a choice of witnesses when that will be remembered when the witness tes mentin framing questions to thewitness, so the representing an individual. But if your client tifies. Attorneys should caution witnesses, par witness can truthfullyanswer that he didnot see would notmake a good witness, considercare ticularly clients, that they are always on stage or use the document before testifying. On the fully whether his testimony is really needed. during trial. other hand, if the other side already has the Several years ago!was representing a client I document it can be disastrous not to have the had never met, who had moved out of state Ifyou are calling a witness who is not directly witness read and review the material before beforethe suit was filed. Ourfirst meeting was connected with the matters in dispute, foster testifying. when he arrived in California during trial to andprotectan imageofimpartiality and objec testify. tivity. Seat the witness away from your client, A visit tothe scene ofan accident or thelocation and have the witness maintain that distance of an event is very important. Besides helping Imetmycientattheaiiportduringtrial. He outside thecourtroom as well. the witness remember, viewing the locations of had fueled a long-standing drinking problem streetlights, cross-walks, stop signs and other during the ifight andhe looked awfuL When he One final point about witness demeanor: landmarks wilicontribute toaccurate andtruth looked no better the next day,! sent him home. Anyone who testifies has aright to be nervous. ful testimony. Measuring or estimating sizes, Therewasnothinglreallyneededhimtotestify Tell witnesses it is expected and normal to be distances and times at the scene results in ac about Fortunately, I had been careful in my nervous. Jurors sic nervous when they are curacyand believability In a courtroom. opening statement to avoid saying my client called and questioned during voir dire, so they would testify. I did not want to promise tes understand and sympathize with the nervous A witness should never be permitted to testify tireony from someone I had never seen. We witness. There may be times when awitness is under oath to a fact that can be disproved by won the case without him. so nervous that his testimony will suffer. In physical evidence. A situationI have often seen such cases, it may help him to observe a trial in auto cases helps illustrate this point: The

April1990! The Advocate 55 witness says he never saw the other car before impact, even though the police report shows skid marks before impact. The physical JUSTICE in Atlanta threw out the reversal. Why" evidenceclearly shows that thewitness saw the Because McCleskey’s lawyers should have other car and even applied the brakes. If the raised the informer issue during their first witness had simply been shown that evidence Death round of appeals in 1981. There is. of during preparation for trial, he would have been Rides course, a logical gap: McC]eskey’s lawyers convinced of his inaccuracy and would have had no reason nine years ago to suspect been comfortable on the stand saying that he a Judicial that Evans was a plant. "The court is tell. indeed had seen the other car. ing us that we should have known some thing that we couldn’t possibly know be. The witness should see photographs or Roller Coaster cause thestate deliberately concealed it." diagrams that might be used on direct orcross- complains Boger. examination. When working with a scale Fatal shots: Federal judges are appointed diagram, be sure the witness understands the An inmate’s fate for life and don’t have to explain their ac scale being used and is able to measuredistan tions outside their opinions. It is no secret. ces with confidence. though, that federal courts in the South very courtroom lawyer knows that have grown irritated with protracted Thesepreparation techniquescanhelp improve you’re supposed to ask only questions death-row appeals-even though many are a witness’s testimony, but they should not be E to which you alreadyknow the answer. successful-and McCleskey’s has been as used to create a witness. Witnesses arc often But sometimes that rule can’t be honored. drawn out as any in recent history. The reluctant to admit that they don’t remember. In the summer of 1987, convicted killer start of thecase was all too direct. In 1978, They may guess, or make assumptions, rather Warren McCleskey had five days to live Georgia sheriffs arrested him and three than admitalack ofrecollection. Consequently, and his attorney was desperate. At an At confederates for the murder of a white po you should caution witnesses during prepara lanta federal hearing, Jack Boger of the lice officer during a furniture-store rob tion that testi1thrg in court orin adeposition is NAACP Legal Defense Fund called to the bery. On Evans’s testimony, McCleskey not a test - guessing at answers will not produce witness stand every local law-enforcement was convicted of firing the fatal shots and abettergrade. Ifa witness simplycan’tremem official he could find to ask what they sentenced to theelectric chair. ber, or doesn’t know certain facts, leaveit that might know about the case. Late oneafter Since then McCleskey has ridden a roller way. noon a local jailer testified that Atlanta coaster through thefederalcourts. The ver police detectives had asked him to move a dict was reversed once, only to be restored. When going overtestimony with a witness, an known informer, one Offie Evans, into the Then he became thenamed plaintiff in the attorney has the opportunity to influence what cell next to McCleskey’s to elicit informa most important death-penalty case of the will be said in court or during a deposition. tion; at trial, Evans testified that McCles 1980s. Working on his behalf, a team of Obviously, witnesspreparation cannot be used key had confessed to the murder. This ploy lawyers and statisticians developed over toconvince the witness tolie or to convincehim was a clear violation of his constitutional whelming evidence that Georgia’s death that something is the truth. right to counsel. The impact in the court penalty was imposed disproportionately on room was as palpable as anything a Perry thekillers of whites than ofblacks. McCles When preparing witnesses who are not clients, Mason melodrama might invent. "I have key is black, his victimwas white. But in a the conversation is not protected by the attor given Mr. Bogera few days to go on a fishing bitterly divided 5-to-4 decision announced ney-client privilege. Everything that is said in expedition," said federal district Judge J. in April 1987, the U.S. Supreme Court re preparation can be discovered. Tell the witness Owen Forrester, "and they’ve caught a jected the constitutional claim. That’s he should admit to thepreparationmeeting and pretty big fish." He ordered a new trial. when Boger began grasping at straws and that it is customary for an attorney and witness McCleskey never got one. On the day came up with Evans, the secret snitch. to meet beforetrial ordeposition. Ifasked what before Thanksgiving last year. in a little- Bogerhasasked theappeals court to review was said during themeeting, the witness should noticed decision, the federal appeals court its decision; it’s unlikely to since judges answer, "The attorney told me to tell the truth." rarely admit their own errors. t McCleskey’s current consti It is improper and unethical to pay a witness tutional argumentis more than other than an expert to testify. It is not un technical mumbo jumbo. With proper, however, to reimburse a witness for out Evans’s statement incrimi out-of-pocket expenses, including wages lost nating him as the triggerman, while testifying. The amount of money a wit Georgia prosecutors would ness will receive should be agreed upon in have little elseon which to seek advance. The witness should be prepared to the death penalty. McCleskey testify to that amount and to the fact that the would simply be serving a pris reimbursement was not contingent on what he on sentence for felony murder says. likehiscodefendants. The latest McCleskey ruling Witness preparation is a vital partofpresenting came as both Congress and evidence. There is no simple formula that will Chief Justice William Rehn applyin every case. How a witness is prepared quist are considering changes will vary from witness to witness and case to that would severelyrestrictthe case. One rule, however, never varies: Always appellate options of death-row give a witness some preparation beforetestify inmates. If the decision stands, ing. legislative reform won’t be necessary: short-circuiting the ROBERT S. LUFT route to the chair will already be the law. Robert is a director in the firm ofRopers, DAVID A. KAPt., Majeski, Kohn, Bentley, Wagner & Kane "From NEWSWEEK, January22. 1990,c,and Newsweek Inc. All Rights reserved. Reprinted in San Jose. Reprintedfrom the California bypcrmistion.’ Lawyer with permission.

AprIl 1990! The Advocate 56 Just Say No To Gun Control

Henry Curry Do not let tragedies such as the insane WEHR," and it has 3 main characteristics. than 0.4% of handguns will be involved in actions of Joseph Wesbecker influence First and most important, "assault rifles" criminal activity in any givenyear. Survey you into imposing gun restrictions upon are capable of full automatic fire. The research suggests that about 650,000 law abiding citizens, Our constitutional rifles used at the Stockton, California, Americans every year use handguns for right to bear arms should never under any schoolyard or the recent Louisville, Ken protectionfrom burglars, robbers, rapists, circumstances be infringedupon. The ac tucky, shooting were semi-automatic. assailants, would be murderers, etc. tions of the few should not eliminate the Second, they are chambered for socalled rights of themasses.The right to bear arms intermediate sized cartridges, not pistol Based on 1987 FBI Uniform Crime is the teeth of our Constitution. calibers. And finally, they must be Reports, no gun law, any city, lightweight, although there is no agreed in state or nation has ever reducedviolent crime, or Anti-gunners attempt to exploit isolated upon standardin this area. slowed its rate of growth, compared to events to achieve their goal of banning similar jurisdictions without such laws. guns. The anti-gunners and their support Semi-automatic-only versions of assault With a virtual handgun ban, enforced with ing media cronies intentionally or and battle rifles appear externally sinister federalaid,violentcrime rose in Washing through their own ignorance ignore the to the uninitiated. There is no functional ton, D.C.,over twiceas fast 48% vs. 22%, facts. According to the U.S. Department difference between semi-automatic rifles 1976-1982 as the rest of the nation. of Justice, all rifles, whether semi-auto that trace their origins to military weapons Chicago’s 1982-1987 violent crime rate matic, bolt-action, lever-action, or pump- and semi-automatic rifles designed for rose 150% while risingjust 10% national action, account for less than 4% of the sporting civilian uses. ly. NYC now boasts 1/5 of the nation’s firearms used incrime nationally. Further, gun-relatedrobberies and more homicides of the firearms seized by police, less than Bills are often introduced by repre than the total of23 states. The two crimes 3% are the military look-a-likes the gun sentatives that are unaware that all semi most feared by Americans are murder in prohibitionists claim are preferred by firearms are identical func the course of another crime 50% and criminals. Contrary to what the anti-gun automatic in robbery 43% 1978 DM1 poll; robbery tion and capability - they only differ in ners would have the American public appearance. If I use my rifle for target and robber-murder rates are consistently believe, these military look-a-likes are not practice and personal enjoyment thenmy higher in cities with restrictive firearms fully-automatic military "assault laws and/or hostile enforcement of such so called "assault" rifle is in fact a "target Uniform weapons"; they are semi-automatics or practice" rifle isn’t it. laws. FBI Crime Reports1S7. firearms, like the tens of millions of other by law-abiding semi-automatics owned All criminologists studying the firearms Americans. These firearms fire a single President Bush banned the importationof issue reject simplecomparisonsof violent round for each pull of the trigger. The gun certain semi-automatic firearms. He did drug shippers crime among foreign countrIes. James prohibitionists want to ban guns that are not prevent criminals and Wright, et al., Under the Gun, 1983. similar to fully-automatic firearms onlyin from acquiring these firearms. He didnot of increase penalties for the possession of "Gun control does not deserve credit for appearance-not in function or rate fire. the low crime rates in Britain, Japan, or these firearms by criminals. He did cause the price of these fireanns to double and othernations...Foreignstyleguncontrol is Anti-gunners like to mislead the public triple in cost forthose law abiding citizens doomed to failure in America; not only into believing that semi-automatic whowish purchase one of these does it depend on search and seizure too military look-a-likes havemore firepower to legally intrusive for American standards, it pos not true. In fact, "target"firearms. Bush seems to have pos tulates an authoritarian philosophy of than other rifles. This is sibly increased the product line of these most of the so called "assault weapons" government fundamentally at odds with use relatively low powered pistol aforementionedillegal shippers. the individual, egalitarian...Americari cartridges such, asthe 9mm. Those thatdo ethos." David Kopel,Foreign Gun Con not use pistol cartridges, use rifle Everyone should do all that you can to trol in American Eyes, 1987. Gun laws cartridges that are 1/2, or even 1/3, as prevent the erosion of our constitutional and firearms availability haveno relation powerful as a common hunting rifle right to bear arms. I enjoy target practice ship with murder or suicide rates. North- cartridge. The anti-gunners inEngland are with single shots, semi-automatics, and attempting to eliminate "deadly" shot automatics. My friends also enjoy shoot guns. They have already banned semi ing these firearms and it would be a great "Americans have the right and advantage automatic and hunting rifles. loss if our legislature put an end to this of being armed - unlike thecitizens ofother hobby. countries whose governments axe afraid to trust thepeople with arms." The term assault riflewasderived from the German expression "STURMGE Less than 0.2% of the firearms and less James Madison

April 199011’heAdvocate 57 em Ireland, with a restrictive gun ban, has RESOLVING CONFLICT THE PEACEFUL WAY a murder rate higher than the U.S., Swit zerland and Israel, withmore households armed, have murder rates comparable to England and Japan - or lower.

England has twice as many homicides with firearms as before adopting its repressive laws; yet counters rising crime The means by whichindividuals communicate 1983 by Genie Z. Laborde is a more advanced by increasing strictures on rifles and now their thoughts and feelings and manage their book utilizing the understanding of neurolin on most shotguns. Yet during the past 12 differences largely determineshow successful guislic programming. She emphasizes special years, handgun related robbery rose over they will be in their personal and professional patterns of communication that help a person 200% while dropping inthe U.S. relationships. When people are troubled, pres achieve desired outcomes in negotiation and sured, and highly emotional, it is even more personal relations. difficult to communicateclearly. In these situa S MurderratesofJapanese-Americans, who tions,people need to be able tocall upon a more evenlower HowShouldCongregations TalkAbout Tough have access to firearms, is than sophisticatedset ofskills calledconflictresolu Issues? Tribune Media Services, Inc., 1988 the murder rate in Japan, where a virtual tion skills. by Richard G. Watts is a very informativelittle gunban is in effect; Japan’s suicide rate is booklet whichutilizes a6, one-hourlesson plan twice as high as the U.S. rate. NRA Fact This field of conflict resolution has been bur format to discuss conflict andits resolution. Card, 1989. geoning in recent yams. As Dr. George Lopez of Noire Dame University notes, therehas al Getting to Yes Houghton-Miffin, 1981 by waysbeena focus on thepeaceful settlementof A prisoner survey by the Rand Corp., di pute in theinternationalrelations literature. Roger Fisher is a must. Fisher develops the a al., fmds that criminals explosion in material available on practice of "principled negotiations" and "win- James Wright Now arecent win situations." All the basics are in this are more afraid of being shot by victims mediation, negotiation, and conciliation emer popular little book. than by police. Of career handgun ges from a number of domestic developments predators 53% did not commit a specific and pressures arising from community dis was armed. putes, environmental issues, and legal alterna Ronald S.Kraybifl’s Repairing the Breach: crime forfear that the victim tives to courts. Ministering in Community Conflict Herald 57% of the predators surveyed were Press, 1981 is a first-rateanalysis of the role scared off or shot by armedvictims; 88% of outside observers in conflict and discusses always be able to get Moreoever, educators andresearchers have be think criminals will come more aware that the seeds of conifict the settlement of disputes involving policeand handguns; absent handguns, 75% would become ingrained in children early. Old, hos communities, housing code authorities, and use sawed-off shotguns. Unarmed felons tile, nonproductive patterns of response to church groups. listed tougher penalties for using a gun as human conflict situations are passed on from an important reason fornot arming. generation to generation. The goal of new Two books for conflict resolution with child programs forchildren is to reach children early ren, A Manual on Nonviolence and Children enough in their formative years so that they andthe Friendly ClassroomforaSmallPlanet, It was estimated by the Rand Corp. survey might come to understand how appealing axe excellent, chockfullof hands-onexercises. that a burglar runs twice the chance of humanrelationships canbe when openness and The. exercises include those for affirmation, being shot by a victim as by the police. honesty are coupled with creative approaches communication, cooperation, andconflictreso They also found that using a gun for to problem solving. lution. protection from violent crime- rape, rob bery, assault- reduces the likelihoodcrime The link to conflict resolution is direct teach Raising Self-Reliant Children in a Self-Indul will be completed and reduces the ing parents theskills to create an environment gent World: Seven Building Blocks for likelihood intended victims will be in where children are listened to taken seriously Developing Capable Young People Prima, jured. and affirmed for who they are and the unique 1988is area! gem. The bookis apracticalhelp contribution they make is the first step in on ways to work with children to promote preventing or resolving effectivelyany future learning, confidence, and mutual enjoyment. HENRY CURRY conflict. A number of excellent resources are The inspiring formulahelps develop closeness, Attorney-at-Law available. trust, dignity and respect 6208 Lakewood Village Drive Catlettsburg, KY 41129 The bestoverall book for thereal "nitty-gritty" These resourcesarepartofan exciting, creative 606 739-8269 of conflict resolution is Communication and approach to conflict that is not based on com Conflict Resolution Skills Kendall/Hunt, promise orlessening of principle. On the con 1985 by Neil H. Katz and JohnW. Lawyer. trary, interests and values are respected and Ilenty is a 1985 graduate of Chase School of This excellent book, whichis suitable forclass usually therelationship is deepened. I recom Law. He is amemberoftheBoydCo. BarAssn room application senior high or college, mend them highly for churches, schools and He has performed public defender work in covers communication, information sharing, famillies. Bcryd Co. since 1987. He is retired from the reflective listening,problem solving, assertion United States Marine Corp and a member of and conflict management. NRA. MT MCCULLOUGH Dr. Dudley Weeks’ Conflict Partnership Pat has been the Director of the Kentucky Trans World Productions, 1984 describes 21 Council ofChurches, CouncilonPeacemaking "The Constitution shall never be con techniquesfor effective, nonviolent resolution and Religion in Louisville. KY for the last 9 strued...to preventthe peopleof the United of all conflicts- between individuals, groups, years. She has a masters degree in political States who are peaceable citizens from businesses, institutions, and governments. The sciencefrom UofL and is apart-time potitical keeping their own anus." conflict partnership techniques are also valu science instructorat UofK.Shehas4 children, able as relationship patterns that can use dif ages 15-23. ferences among people for mutual growth. Reprinted with permission from the Nov./Dec. AlexanderHamilton 1988issues ofiNTERCOM, apublicalion ofthe Influencing with Integrity: Management Skills Kentucky Council of Churches. for Communicationand Negotiation Syntony,

April 1990The Advocate 58 CASES OF NOTE... IN BRIEF

Ed Monahan

Revocation of Driver’s License for The burden imposed on petitioner by this fromthe destruction is on thestatesinceitacted Sex Offender Is Unconstitutional conditionis greatlydisproportionateto any in bad faith. Id. at 390. The court held that the People v. Lindner, rehabilitativefunctionit may serve. There inconsistencies of the victim were extensive 535 N.E.2d 829 111.1989 fore, it is our opinion that the condition is and that the state had not proven the harmless- unreasonable. ness for the defendant not to have the most Id. at 469. concrete from of her prior statements. Id. at Daniel Lindner was convicted of sex offenses 391. and was sentenced to3 yearsprobation. Illinois has a provision that requires revocation of a State’s Destruction of Taped criminal’s driver’s license if convictedof cer Statements of Victim State’s Duty to Collect tain sex offenses. The Court held that the State v. Williamson, Favorable Evidence defendant’s driver’s license in this case could 540 A.2d 386 Conn.App. 1988. Miller v. Vasquez, notbe revoked. "A driver’s license is property 868 F.2d 11169th Cir. 1989 interestforpurposes of the due processclause." Anthony Williamson was convicted of 1st de Id.at831. gree robbery. The victim reported the crime by Charles Miller was convicted of assault with a calling the 911 emergency number. The call deadly weapon, with prior serious felony en In order notto violate the due process guaran was taperecorded and thenerased 38 days later hancement and sentenced to 14 years. The vic tee, a statute must bear a reasonable relation according to standard police procedure. The tim informed the investigating policeman that ship to the public interest intended to be victim went to the police station and shegave the coat she was wearing during the attackhad protected, otherwisethisis an unreasonableand a statement under a peculiar procedure. The a spot of blood on it. The policeman never arbitrary exercise of the state’s police power. officer asked the questions on tape; turned the collected the jacket. She washed it a few days Herethe publicinterestof the revocation statute recorder off while the victim answered, and later. was to keep the roads free of drivers who then turned the recorder on while rephrasing threaten the safety of others, who have driven heranswer. The victimdid notlisten to the tape. The 9th circuit held that the bad faith failure to illegally, or who have usedavehicleto commit The tape was transcribed and destroyed. One collect evidence that is potentially favorable a criminal act. Id. at 832-33. day before trial the victim read hertranscribed violates the due process clause, and that the statement and verified its accuracy. The Court federal district court had to reconsider the The Court held that the revocation law did held that the 911 tape recording and the evidence of bad faith. Id. at 1102-21. not victim’s tape recording were statements within bearareasonable relationship to these interests the meaning of the discovery rule. Id. at 388. since the defendant did not use a vehicle to Brady Materials of Prosecution commit the offenses. Revocation bears no Witness relationship to theoffense. "Statements of potential witnesses which may be requiredto be produced and made available United States v. Strifler, 851 F.2d 11979th Cir. 1988 Condition to the defense in a criminal trial must be of Probation Unreasonable preserved.... In this case, it was foreseeable by Beckner v. State, the state and its agents that the victim’s Ronald and Carla Strifler were convicted of 373 S.E.2d 469 S.C. 1988 recorded statements would be required to be attempting and conspiracy to manufacture and produced in the eventof trial. The police, there distributemethamphetamine. John Beckner pled guilty to distribution of fore, were required to preserve the state marijuana, second offense, and received 10 ments..."Id. The 9th circuit held that the trial judge im years imprisonment, suspended upon the ser properly failed to release Brady information vice of 5 years with probation. 5 years One prior a prosecution witness’ - condition of probation was that he not The Court held the intentional destruction of probation file the ‘be in a thetapes in this case to be in bad faith: witness’ entire criminal record, information place of business that sells alcohol." about motives to inform on the defendant, pre The present case does not involve vious over compensation by the witness for Recognizing that a sentencing judge has broad negligent destruction but, rather, involves problems, longstanding financial needs of the discretion to set conditions of probation, the intentional destraction. The 911 tape and witness and reports of repeated lying to Court held that the conditions must be reason the tape recording were destroyed in ac authorities. "The trial court must release what able and that this condition was unreasonable: cordance with standard police procedure. it finds relevant, material and probative as to The mandatory provisions of the rules of the witnesses credibility."Id. at 1202. While the challenged condition may have practice and theGeneral Statutes havebeen been reasonable at an earlier time, we do rendered ineffective by the state’s inten not believe that the condition is reasonable tional conduct in erasing discoverable in today’s society where alcohol is sold in material after sufficient and exhaustive a wide variety ofbusinesses. The practical warnings to comply with these provisions effect of the challenged condition is to have been issued. Such violations can no prohibit petitioner from entering or work longer be considered conductperformed in ing in virtually every grocery and con the absence of bad faith. venience store in South Carolina. Addi Id. at 389. tionally, it excludes petitioner from a large number of restaurants in this State. The burden to show that therewas no prejudice

April 1990/ The Advocate 59 ASK CORRECTIONS

Shirley Sharp

Lately, Ask Corrections has received a Calculatingjail credit and sentence credit Parole number of inquiries concerning questions August ‘89, p. 48. asked in previous issues. To make the Wheti does timestart accruing for a client column more useful to the reader, an index Merit time and good time; August ‘89, p. arrested for a technical parole violation, to all questions which have appeared in 48. April’ 87,p. 30. "Ask Corrections" since its beginnings in April, 1987, has been compiled for this Good time and jail time; February ‘90, p. Parole eligibility on a new sentence com issue. 72. mitted whileon parole; June ‘87,p. 39. Concurrent and Consecutive Expiration Dates List of crimes with 50% parole eligibility Sentences or 12 years if life sentence; August ‘87, p. Expiration dates defined: Normal maxi 37. The effect of state time running concur mum expiration, adjusted maximum ex rent with federal time; June ‘87, p. 39. piration and conditional release date; Whenis a client’s parole finally revoked; August ‘87, p. 37. October ‘87, p. 38. The effect of state time running with anotherstate’s time; June ‘87, p. 39. Normal adjusted expiration date and con How parole eligibility is calculated for a ditional release date explained; February controlled intake client and where are the The effect on simultaneous consecutive ‘90, p. 72. hearings held; October’ 88, p. 38. sentences from different jurisdictions Inmate Files when one sentence is reversed and no Parole Board membership, who and how retrial is ordered; October ‘88, p. 45. How to obtain documents from an of many; February ‘88, p. 34. fender record file; December ‘87, p. 50. The effect on staggered consecutive sen What is the difference between release tences if the first sentence received is Intensive Supervised Parole from parole supervision and final dis reversed and no retrial is ordered October chargefrom parole; February ‘88, p. 34. ‘88, p. 45. Intensive supervisedparole ISP defined; October ‘89, p. 53. ControlledIntake How parole eligibility is determinedfor a clientwho is given a deferrment and later How jail time, good time and parole How todetermineeligibility; October’89, receives asentencefora new charge; April eligibility dates are calculated for a con p. 53. ‘88, p. 39. trolled intake inmate; October ‘87, p. 38. Interstate Agreement on Detainers lAD How parole eligibilityis determined for a How parole eligibility dates are calculated client whois returned as a paroleviolater, and where parole eligibility hearings are Procedures when inmate requests disposi is given defemrient and then receives a held for a controlled intake inmate; Oc tion under lAD; October ‘89, p. 56. new sentence; April ‘88, p. 39. tober’88,p. 38. Procedures when prosecutor requests dis What is the effect on parole for a client How to obtain a resident record card; positionunder LAD; December ‘89,p.56. who is given a serve outand thenreceives December ‘87, p. 50. a misdemeanor or felony sentence based Where to obtain LAD forms; December ona chargecommitted whilein the institu Parole eligibility for an inmate in control ‘89, p. 56. tion, April ‘88, p. 39. led intake with a sexual offense who is required to complete a treatmentprogram Automatic parole violation pursuant to pursuant to KRS 439.34010. KRS 439.352 no longervalid; June’88, p. 34.

This regularAdvocate column respondsto questions about calculation of sentences in criminal cases. Shirley Sharp is the Corrections Cabinet’s OffenderRecords Administrator, State OfficeBuilding, Frankfort, KY 40601. Forsentence questions notyet addressed in this column send to Dave Norat, DPA, 1264 Louisville Road, Frankfort., KY 40601.

April 1990ffhe Advocate 60 Decisioninvalidating KRS 439.352 is not Parole/Jail Time Calculations Automatic receipt of a resident record retroactive; June ‘88, p. 34. card by an inmate; December’87, p. 50. Jailtimecalculation errors; August’87, p. What happens when a parole is violated 37. How a controlled intake inmate can due to a new sentence and the jail time on receive a resident record card; December the new sentence exceeds parole How jail time, good time and parole ‘87, p. 50. eligibility criteria; June ‘88, p. 34. eligibility arecalculated forcontrolled in take inmates; October ‘87, p. 38. Defining the termsadjustedmaximumex Effect of KRS 439.3401 on parole piration date, conditional releasedale and eligibility for a kidnapping offense where Difference between jail credit and sen final discharge from parole; April ‘89, p. there was no serious physical injury; tence credit for controlled intakeprisoner 36. August ‘88, p. 49. August ‘89, p. 48. How to obtain a residentrecord card while How does Offender Records determine if Merit time and good time for controlled injail; February ‘90, p.72. a charge involves serious physical injury; intake inmate; August ‘89, p.48 August ‘88, p. 48. Sentence Calculations Good time and jail time calculations for How does a charge of criminal attempt controlled intake inmates; February ‘90, Calculating total time to serve when serv ing simultaneous consecutive sentences affect parole eligibility pursuant to KRS p. 72. August ‘88, p.48. from different jurisdictions and one sen 439.3401; Persistent Felony Offender PFO tence is reversed and no retrial is ordered; October ‘88, p.45. Eligibility for capital murder with a sen The effect of a PFO conviction on total tence years; October ‘88, of 180 p.45. time to serve and parole eligibility when Calculating total time to serve when serv received while on parole; April ‘87,p. 30. ing staggered consecutive sentences and What effect doesthe sexual offender treat the first sentence is reversed ment program have on parole eligibility and no retrial Total time to serve and parole eligibility is ordered; October ‘88, p. 45. forcontrolled intakeinmates; April ‘89,p. fora client sentenced to multiple consecu 36. tive PFO first degree convictions; April Calculation of expiration dates: Normal ‘87, p. 30. maximum, adjusted maximum and condi What effect does KRS 439.342 have on tional release date; August the length of parole supervision when a Resident Record Card ‘87, p. 37. client has less than twelve months remain ing to serve on a paroled sentence. What is a resident record card and how to Explanation of normal, adjusted and con obtain one if the inmate is in prison; ditional release dates; February ‘90,p. 72. What is the difference between release December ‘87, p. 50. from parole supervision and final dis charge; February ‘90, p. 72. Family of slain man sues police By Jeanne Houck They also contend that the of Casson said Furnish perform Kentucky Post staffreporter ficers intentionally delayed re ed poorly and Sgt. Paul Flinker Relatives of a man who was sponding to the third call to and Lt. Charles Mitchell failed to Roberts’ home on Promontory follow up properly as supervi stabbed to death by a woman he Drive last Feb. 7. lived with have sued the city of sors. Furnish, who also faced Covington, its police department The two are asking for an un charges from severai other inci and three officers. specified amount of compensato dents, was suspended for 30 ry and punitive damages in the days. Departmental The daughter and mother of charges Lester David Roberts say in a lawsuit, which was filed by Cold against Flinker were later suit filed in Kenton Circuit Spring attorney Robert Blau. dropped and Mitchell retired. Court that Roberts was killed as Roberts, 57, died of a stab to City Attorney Joe Condit said a result of negligence on the part the heart. The Woman he lived Wednesday the city, which of Officer Dan Furnish, Patrol with, Mary Ann Marshall, 34, would investigate the lawsuit, man Anthony Williams and Sgt. pleaded guilty to a charge of second-degree manslaughter, was not negligent: "There were James Liles. who responded to some allegations made regarding three domestic dispute calls that and Kenton Circuit Judge Daniel preceded the slaying. Goodenough sentenced her in whether or not a supervisor should have come to the scene. Roberts’ daughter, Deborah December to eight years in pris Tobertge of Elsmere, and his on. "That had more to do with mother, Florence Roberts of Former Police Chief Al Cas intra-departmental policy, rather Covington, say the officers failed son brought administrative char than any acts that would have to use all reasonable means to ges against Furnish and two affected whether this person prevent further abuse, as re other officers not named in the would have been stabbed or quired by state law. lawsuit after the stabbing. not." The Kentucky Post, February 8, 1990. Reprinted with Permission.

April 1990/The Advocate 61 BOOK REVIEW

Treatments of Psychiatric Disorders May 1989 American Psychiatric Press,Inc. $250.00

William Weltzel

What’s afoot? When both di? prestigious professional journal Science and tile U scale, trendy monthly The AtZWUicL take PSYCHIATRISTS GET note of the publication of a psychiatric TREATMENT MANUAL treatmentmanual,something newsworthy has happened. This 4 volume, 3068 page, hard cover set is intended as a companion im knowledge." Different presentations to that procrusteannosological text, Diag are organized into 26 sections with 263 nostic and Statistical Manual ill-Revised chapters authored by single or multiple A task force of the American Psychiatric The latter text lists all the contributors. The reader is Assn. has recentlyproduced a weightynew DSM IIi-R. presumed to manual, the first of its kind, to serve as a legitimate, recognized psychiatric disor possess specialized training in psychiatry guide for the treatmentofmental disorders. ders treated by American psychiatrists and which provides a body of knowledge and The 4000-page, 4-volumeopus is designed other mental health clinicians. acquired clinical skills. This is a different as acompaniontopsychia-try’sdiagnostic expectation from the perspective of a bible, the DSM Ill-R. Treatments of Psychiatric Disorders ar traditional textbook like Comprehensive rived in May 1989, ahead of its time but Textbook of Psychiatry-V CTP-V[A The undertakingwas 7 yearsin the making already obsolescent in its application. In review of the Comprehensive Textbook under the directionof T. Byram Karasu of appears in the October, 1989 Advocate, the Albert Einstein College of Medicine. 1982, the first efforts to develop a treat A distillation of knowledge about what ment manual began amidst a chorus of Vol II, No.6 at pp. 54-55]. works for what disorders, the treatment concernthat psychiatry was more art than standards represent the consensus of 28 science and couldn’t/shouldn’t be limited The authors started with a clinical model committees and 400 consultants. by boundary definitions. Motivation for that assumes that a patient with specific the project derived from widely shared characteristics can be diagnosed with a The work has drawn criticism from those concerns thatalucid, evenhandeddescrip given disorder or combination of disor who regard psychotherapy as still more of tion of current treatments did not exist. ders as described in DSM ii1-R. Ex an art than ascience andwho fear the guide will dampen innovaliopand discourage the Benefits would follow for psychiatrists perienced clinicians describe preferred exercise of discretion by individual and research pursuits if such a compen treatments and/or combinations as well as therapists. dium were written. Dr. Byram Karasu of acceptable alternatives and possible ad Albert Einstein College of Medicine in junct treatments. Integration of a biop The treatment manual’s editor, Karasu, New York City accepted the role of Task sychosocial. perspective into one chapter also appears to have bruised some egos at Force Chairperson and eventually involving multiple points of view was the American Psychological Association. engaged 679 experts to contribute. made the goal. Sometimes, this approach Russ Newman, an association executive, is proved not to be feasible. Then, multiple quoted in its newspaper, the APA Monitor, During gestation, thisopus was conceived chapters were included from diverse as being particularly annoyed with a com perspectives. ment by Karasu that "non-physician of as an official American Psychiatric As An example of this format therapists, who can’tprescribe the medica sociation document. As the work product involved discussion of alcoholism from tion, tend to improvise therapeutic moved laboriously toward publication, vantage points including the use of acrobatics that may not be appropriate." alarm grew among rank and file medication, individual psychotherapy, Most psychologists arenot physicians. psychiatrists that attorneys and thirdparty family therapy, group therapy, and be payors would seize on recommendations havior therapy. Site specific chapters The four-volume set, Treatments of and clobber those whose practice about alcoholism include office manage Psychiatric Disorders,is available for $250 deviated. Balloting determined that this ment, hospitalization, community based from theAmericanPsychiatric Press, 1400 would be a Task Force report and is notan treatment, Alcoholics Anonymous, and K Street, NW, Washington, D.C. 20005. official position statement. Each volume Employee Assistance Programs in in I Research News article, VoL 245, Pp. 934, begins with a disclaimer that the chapters dustry. 1 Sept. 1989,"Psychiatrists Get Treatment do notrepresent statements about standard Manual." Crawford, M. Copyright by the ofpsychiatric care. Dr. Karasu stresses that this effort is a AAAS. Reprinted with permission. professionaldocument developed to aid in The tone of the work product is set with suggesting treatment for psychiatric dis the dictum, "Science provides only inter- orders and as an aid for treatment plan-

April 1990/The Advocate 62 ning. Time will tell which therapeutic ap Kentucky’s Inpatient Psychiatry Service. are best after use by individual Hehas been in private practice in Lexi proaches and is presently QUESTIONS, ANSWERS ON practitioners who employ clinical judg ngton since 1979 the Directorof the Adult Psychiatry Service at POSTWAR DISORDER ment, experience, and assessment of Charter Ridge Hospital.From 1977-82 he evolving scientific literature. was alecturerat theUn!versity ofKentucky Law School for"Law, Psych!at,’, andPubic Treatments of Psychiatric Disorders is Policy." aptly titled. It does not deliver the en Question: What Is post-traumatic cyclopedic description of a topic that a stress disorder? textbook conveys. It presumes that you FOOTNOTES know how to use DSM III-R to reach a Crawford, MB: "Psychiatrists Get A: A mental condition suffered by likely diagnostic description for a patient. Treatment Manual." Science 245: 934, victhns of combat or other conditions How to returnyour patient to independent 1989. of extreme stress. Symptoms include functioning and to control symptom ex 2 recurring memories of horror, anxie pression stack up as the text’s intent. Cure Alper, J: "Order on the Couch. The Atlantic, 1989, pages 24-30. ty; numbness; insomnia; guilt; in- is an elusive goal for psychiatry as well as May, ability to concentrate. the rest of medicine. It was identified by the American Obsolescent in its application? These DPA’s Library has all of the books dis Psychiatric Association in 1980. volumes serve me well as a reference in cussed in this review. Contact DPA’s my role as treating physician but the times Librarian, Tezeta Lynes, for access to call for more. them. Q: How many Vietnam veterans have the disorder? In the fall of 1988, when the responsible American Psychiatric Association com A: Fifteen percent, or 470,000 of the ponents gave the go ahead for publication, 3.14 million men who served in Viet some members feared the misuse of this nam and about 7,000 women, mostly text by attorneys and insurance com nurses, according to theNational Viet panies. Hence, the disclaimer that the ef nam Veterans Readjustment Study. fort is not an American Psychiatric Assn. About 18,000 including 400 in Ken policy document and is nottobe construed tucky, have been granted disability as a standard forpsychiathc care. compensation.

As I write this review in the early spring Q: Do other people besides Vietnam of 1990, the consensus has changed. veterans get post-traumatic stress dis Recently enacted Medicare legislation order? will determine new rules for physician fees. Healthcare delivery corporationsare A: Yes. Almost anyone who ex engaged in vertical integration. Managed periences war, criminal assault, dis care intrusions are coming like a tidal asteror torture shows some symptoms wave for both inpatient and outpatient of post-traumatic stress. settings. The times require psychiatry to set carefully delineated parameters for delivery of different types of treatments. Q: What Is the treatment? The American College of Physicians and The American Academy of Neurologists A: There is much uncertainity about already issue official position statements the best form of treatment, especially about treatment matters. Members of for chronic and severe cases. Treat these 2 organizations support this activity. ment involves psychotherapy, in dividual and family counseling, It is likely that there will be more efforts relaxation training and desensitiza like Treatment ofPsychiatricDisorders in tion. Some victims require medica the future. Subsequent editions will be One in 5 people will have a mental tion. People withchronic cases tendto more rigorous and specific about what illness at some point. become easily addicted to drugs, so works and what shouldn’t be tried. It is some psychiatrists are cautious about easy to be nostalgic about the old days Nearly 13% of U.S. citizens suffer prescribing tranquilizers. when America couldpay for anything. No from a mental disorder. more. Q: What services are available In Lex 10million Americans havesome form ington? WILLIAM D. WE1TZEL, M.D. of depression, 12 million have a Suite A 580, St. Joseph Office Park phobia, 1.5 million are schizophrenic, A: The Vet Center at 1117 S. Lime 1401 Harrodsburg Road 2.4 million suffer from obssessive stone Street offers counseling. The Lexington, KY 40504 compulsive disorders and 1.5 million Lexington VA Medical Center has a 606-277-5419 have panic disorders. mental health outpatient clinic and separate outpatient counseling groups Dr. Weitzelis a DiplomateoftheAmerlcan LEWIS L. JUDD, M.D. forVietnam combatveterans and their Board of Forensic Psychiatry, and of Director wives at LeestownRoad and a 29-bed Psychiatry and Neurology. From 1975-79 National Institute of Mental Health he was the Director of the University of inpatient unit at Cooper Drive.

April 1990/The Advocate 63 a

FUTURE SEMINARS Bar committee to study public defender system NLADA DEFENDER The Northern Kentucky Bar Commissioner Charles Summe MANAGEMENT SEMINAR Association NKBA May31- June2, 1990 announced the Kenton; County Attorneys Larry Philadelphia, PA formation of a Blue Ribbon Crigler Boone, Stephen 202 452-0620 Committee to study the Northern Huddleston Gallatin, John Elfers Kentucky Public Defender System. DPA 18TH ANNUAL PUBLIC Kenton and Paul H. Twehues DEFENDER SEMINAR This Committee will identify Campbell; Commonwealth June 3-5, 1990 problems with the current systems Attorneys Donald Buring Lake Cumbeiland State Park Kenton, 502 564-8006 and formulate recommendations William Mathis Boone and Louis which will be acceptable to the Ball Campbell; Judge Joseph DPA TRIAL PRACTICE community, the courts and the Bambcrger representing the District INSTITUTE October 28-Nov. 21990 various governmental bodies Judges; and Judge Raymond E. KY Leadership Center involved. The Committee will be Lape representing the Circuit Court Faubush, KY meeting on a regular basis 502564-8006 Judge; Public Defender Trustees beginning March 13, 1990. Robert Carran, David Davidson and 4TH KACDL ANNUAL The Blue Ribbon Committee co John G. Patten, SEMINAR -chairs are Judge Bernard J. Gilday, Jr.; Martin Decernber7 & 8,1990 Sheehan Legislator; NKBA Louisville, KY Jr., a former Cincinnati criminal 502244-3770 attorney, now an Administrative members Beverly R. Storm, Law Judge. with the Department of President, and Arnold Taylor. VORP GATHERING; THE ANNUAL CONFERENCE OF THE US. Labor; and Kcnncth L. Lucas, Community Representatives are ASSOCIATION FOR VICTIM- CLU, CIGNA Financial Services. Arnold Simpson, Covington OFFENDER MEDIATION Juno 28-30, 1990 Lucas is also currently serving as attorney; Roy A. Cotcamp, Proctor Louisville, KY Regent of Northern Kentucky & Gamble; Brother John Murphy, 219293-3090 University and as President of the Florence Christian Church; Albert NKU Foundation. Howe, former Sheriff oICampbell The committee members are: County; Chamber of Commerce Judge-Executives Bruce Ferguson Chairman John Finnan and Judy Boone, Clarence Davis Gallatin Clabes, Editor of the Kentucky and Ken Paul Campbell; Post. THENEWS EWI’ERPRISE, March7, 1990. Reprinted by permission.

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