IJ-1i IH’, NIL1 VI I tt!w l1II’II"IIIul I’! 1IL I Ji IL II I 1J1IR THE ADVOCATE

Beginning Salaries for Kentucky Attorneys & Professionals

UK Law School Faculty $40-$42,000 UL Law School Faculty $40,000 Chase Law School Faculty $38,000 Registered Nurse $25,680 Supreme Court Law Clerk Attorney $21,504 Kenton County Police Officer $19,906 Court of Appeals Law ClerkAttorney $19,512 Kentucky State Police $18,058 AssistantCounty Attorney $18,000 AssistantCommonwealth Attorney $17,904 Fruit and Vegetable Grader $17,496 SeniorPark Chef $16,608 SeniorPtiotographer $16,608 Highway Crew Foreman $16,608 Assistant Attorney General $16,608 Assistant Public Defender $16,608 Lexington Public Defender $15,500 Louisville Public Defender $15,000

LnderfjjiuJed PUITJIIC 1cfender Services aiul Excessive Casekmds -

1av Finn Overhead up I I : rllurne S 1aric up l4.4 iThc iti’e and uic nI Criiiie Court wot ii 01 iIic liii tire ilk’ Coi npuicr Ii ilcgral cd Court roolil Sd I-Iefen,.c- 1]ic Hancicd Vonaii Svndronie Sn prcnic tl ri J ii1i cc I afli bcii on I lic Vork Vc I o Pro l 1//n J’u/ll The Public Advocacy Ci11Inii oil Ihc lii iiuration ol i NeV Fvidence ‘olunm Iciineec S tart Si ale Fit II Ti me Ptihl ic I efciidcr Pr nTaII i Pnv ale Pro’ecu1ois ...... Marshall....._...... ______......

From The Editor: Underfunding & excessivecaseloads define IN THIS ISSUE Ky.’s public defender system. Lexington public defenders are saddled with grossly unfair caseloads andincredibly low starting salaries,$8,000lessthantheaverage public FAYETJ’E PUBLIC DEFENDER SYSTEM UNDERFUNDED ...... 3 defaider starting salary of thel surrounding UNDERFUNDED/EXCESSIVE CASELOADS ...... 5 states, and $13,000 less than the average INDIGENT DEFENDANTS AND MONEY...... 6 salary of Ky. attorneys in private practice. TENNESSEE’S NEW PUBLIC DEFENDER SYSTEM...... 7 Their caseloads dramatically exceed those LAW FIRM OVERHEAD I ATTORNEY SALARIES ...... 7 recommended as maximums by the ABA KEVINMCNALLY ON CAPITAL TRIAL ...... _. Dash Committee. Incredibly a Kentucky DEFENSE 8 public defender starts at a salary below a THE PUBLIC ADVOCACY COMMISSION 10 fruit and vegetable grader working for the JUSTICE LAMBERT ON DEFENSE WORK ...... ,._. 13 state. WEST’S REVIEW._.._...... __...... ,..,.,...... 15 At the same time, Tennessee is establishing a fuli-time state wide public defender sys tern starung their attorneys at $22,000, and Glass,. Comnmiwealib...... - ....._ .. 15 West Virginia starts their state public Walls,. Commonwealth...... _...... 15 defenders at $28,000. This is truly the sot Ky. Supreme Court .. - ...... 15 commonwealth. Ky. BarAssociation,.UnnamedAttorney ......

Mozee v. Commonwealth ...... David Nithaus, aLouisvillepublic defend Pale,. Commonwealth ...... _ ...._.._...... _ ...... 15 er, authors a new criminal law evidence Carpenterv. Commonwealth ..._.._ - 16 column for The Advocate. His first article Tinsley v. Jacksrn ...... _...... _...... 16 provides a needed warning about Commonweaun i-"--’-- ...... 16 Kentucky’s adcçrtion ofthefederalevidence Melson/Crumv.’ .h ...... 16 code and an excellent discussion of the Commonwealth v.1 ...... 16 penal interest exception tothe heresay rule. United StatesS..- "ourt...... ,...... 16 ...... - ...... Malengv-’ook...... 16 Barbara Hoithaus takes over the Juvenile Alabama Srnith....._...... 16 Law Column this issue with an article on Careliav. "alifornia...... 17 Kentucky’s Juvenile Justice System. Jonesv. Thomas ...... _ ...... 17 EM .. - ...... Duckworthv.Eagan...... 17 6TH CIRCUIT HIGHLIGHTS. 12 Jackson,. Law Firm of O’Hara...... 18 Marshy. Richardson .18 Sales v. 10 PLAIN VIEW .j I Ky. Supreme Court .19 Commonwealth" In The Advocate is aM-monthly publication of the Department of Public Advocacy, an independent .. .. 19 agency that is within the Public Protection and United States Supreme Court ...... - 20 Regulation Cabinet for administrative purposes. Graham v.Conner...... - .. .. 20 Opinions expressed in ailicks arc those of the The Short VIew...... - ...... 20 authors and do notnec ssarllyrepresent the view. Ricksv. State...... - 20 Advocate ofDPA. The welcomes correspondence United Statesv. Maez .. - .. - ...... 20 on subjects covered by it. United States v. Boruff...... - ...... 20 ...._...... _ ...... _._...... Statev.HiJl...... 20 Edward C. Monahan,Editor Smithy. United States ...... Cr1, Brown, Managing Editor 20 Peoplev. Robinson...... _...... _.._.__... 20 ContributlngEdltors Unda K. West Barbara Holthaus JUVENILE LAW: Kentucky’s Juvenile Justice System ...... _..... 21 West’s Review Juvenile Law Allison Connelly Donna Boyce EVIDENCE: The ComlngCode/ Statements Against InteresL...... 22 Poat-Corn’ictron 6th CIrcuit Highlights Neal Walker Ernie Lewis TRIAL TIPS. Death Penalty PlainView Vine. Aprile Gary Johnson COMPUTER INTEGRATED COURTROOMS - 25 Ethic. In The Trenches ACCELERATING PRO BONO EFFORTS -- - David Nlehaus Dave Norat THECAUSES AND CURESOF CRIME. Evidence Ask Corrections SELF.DEJENSE- BATIEREDWOMAN ‘NDROME_____ 37 KACDL FILES AMJCUS ON PRiVATE PROSECUTORS----_...... 46 ASIC CORRECTIONS - - 48 AG Office Receptionist 502 564-8006 ERAL HABEAS CORPUS- Toll Free Number 800 372-2988 EFI’ECFIVE LISTENING FOR LAWYERS f1 Pør Meseiges only Dep.zirnentclPublic Advocacy BOOK REVIEWS: Trial Objections 1264 Louisville Road Tender is the Thread... Frankfurt, Kentucky 40601 Printed with State Funds ERS 57.375

August 1989/the Advocate 2 THE ADVOCATE FEATURES

1’he Facl1t.. ‘oun1 PUJ1iC Jelt’iitler O1fic

How many attorneys are In your What do you pay perconflict case? office? Misdemeanor - $250 to $500 Eleven attorneys plus the Director. Felony - $500 to $1,500; 11.42’s- $75 What other staffdo you have? How many felonies/misdemeanors Five support staff - 1 administrative as does an attorney in your office on sistant/investigator, 2 secretaries, 1 average handle each year? clerIc 1 runner. On average, our attorneys handle a What was your office’s caseload for caseload of 326 felonies or 617 mis January 1, 1988 through December demeanors. 31,1988? How can defendants be adequately Felonies - 1,954 represented by an attorney handling Misdemeanors - 2,498 Standing tin R Stefony Taylor clerk, Joe Bar. thatmany cases? bled Director, Diana RobertsSccretary/.Rccep Juvenile - 1,500 tiurtisrSiitingLsoRCIierylWrrtAdrninisuadve Involuntary Commitments - 350 We do the best we can. Our staff is cx Assisr.ntllnvestigazox, Blanche Williams Court traordinaiy butpushed to the limit. Coordinator/Secretary Total 6302 What Is the starting salary of your How does thatcompare to thestarting How many cases did your attorneys attorneys? salaries of other attorney positions try durIng 1988? in Legal Aid starting salary is $15,500, your city and region? 106 Felony- which was recently increased from Anywhere from $2,500 to $10,000 less Misdemeanor - 150 $14,500, as compared to the county at than attorneys areable to make inacorn- torney office which ranges from How many conflict cases did you have parable position in public and private $18,000, with no experience, up to sectors. in 1988? $25,000. The Commonwealth Attorney Eight. office’s lowest paid assistant receives What was your attorney turnover In $25,000 and has a much lower caseload. 1988? Fiveresigned, nearly 50% of ourstaff. A resignation of a staff attorney generally meansredistribution ofthe caseload until a replacement is found. This increases pressure. Althoughthey did not resign at one given time and were hereforvarious amounts of time, replacement requires a substantial effort Itseems that recruiting for public interest attorney positions has become very difficult in the past 5 years. Our average years of public defender service for our 11 attorneys is 3 years. What are the biggest problems your omce faces? - 1Money for competitive starting salary; 2 Salary increase; 3 Necessary increase of staff; 4 Presently no retirement. Standing L to R Rich Melville Juvenile Attorney, Gene Lewtor Circuit Cent Attorney, Joe Barbles1 Director.ThomasoemAssistantDirector/MisderneanorAttoeney,TIxxnashapukCircuIturutAnorney How do your resourcescompareto the Seated L to R Nancy Barbez Misdemeanor Attorney. Kathy Stein Circuit Court Attorney. Pamela Commonwealth’s resource? Lcdgcwood Circuit Court Attorney and Elizabcth Hill Circuit Cent Attorney. Not Showe Gordon Shaw MisdemeanorAttorney and Herbert West MisdemeanorAttorney. Poorly.

August 1989/ theAdvocate 3 State Panel Considers Campbell Co. Workersget Raise Raising Attorney’s Rates

Campbell County employees will A legislative committee charged with over soonenjoyfatterpaychecks thanks to seeing stale contracts will review the pay the county’s settlement of a 4 year scale for attorneys with an eye toward in old lawsuitagainst the state. creasing it. Rep. Lawson Walker, R. Villa Hills, said the state could end up paying Thefiscal courtvoted to give most of more in somecases, under the currentmax imum scheduled rate of $75 per hour than the county’s 100 employees a 5% ifitraised therate. Walker, amunber ofthe pay raise, retroactive to April 1. Pert onal Service CcinractReview Subcom County police officers will get a mineeandalawyerinNorthernKy. said law $2,500 a yearincrease. Theraises are firmsnughibechargingthe state for several the first for county employees in hours work by an inexperienced attorney more than a year. when the sante work could be done much more quickly by someone else. What’s Judge-Executive Ken Paul said he worth more, $750 worthofassodate dine or worthof partner time?" Walker Fayette County Legal Aid Office wasn’t favoring police over other $250 said. departments. However he noted that itairman Jim LeMaster, D. Paris, said the officers in Boone and Kenton coun committee staff would seek information. How much more money do you need ties receive more money than those to do the Job adequately? fromthe ICBA on prevailing rates for legal in Campbell. work or survey lawyers across the state. $100,000. LeMaster said the review migbtbc extended Campbell County pays a new officer to thepay ratesfor all professionalservices legIslative $14,638; Boone County, $18,886; such as auditors, dentists anddoctors. What substantive crIminal and would you like to see enacted KentonCounty, $19,960. An ad changes ditional The current schedule, sets amaximum rate by the 1990 LegIslature? $2,500 in pay represents a 17% raise for a starting patrolmanin of $75 per hour for attorneys who are Campbell. The $2,500 pay boost ap partners inaflim.. Foranindivdualanorney, The abolition of the death sentence as it the maimurn rateis $40 per hour. applies to juveniles and the mentally plies to all county officers except the retarded. chief and assistantchief, who will get An example of the rates elsewhere were 5% raises. driven borne to the subcommittee when it iea1970 graduate Joe Barbien of the Ken approved a contract with a San Diego law tucky Wesyan Collegeanda 1973 graduate of Th. Keebicky Post. July 6.1989 firm to defend a Kentucky State Police of the University oflentuckyLawSchooLHe has ficerbeing sued in federalcowtin Southern served as the director of the Fayette County California. Thecommitteeapproved acon PublicDefender’s Officesince 1979. tract that will pay partners in the firm of Higgs, Fletcher& Mack $140 perhourand University of Kentucky Law associatesSi l5perhour.LanyFenueu,the School Salary Study state police legal officer, said that rate was A February 29, 1989 survey of attorneys who graduated from the University of negotiated down froan $165 per hour. Law Kentuckyin 1987 completed by the Collegeof further supports the reality that Sen. Ed Ford, D. Cyethiana, a member of attorneys working for the state are notbeing fairly compensated. the committee said he feared that if the coanmitlee sets a new maximum rate, all The survey included the salaries of attorneys who work in the private sector and contracts will eventually be for that those whowork in governmentalservice onsome level. The surveyfound theaverage amount, just as most are now. Walker salary for all employment types of these recent graduates tobe $31,328. The average agreed that could be a problem. He sug salary of those working in Kentucky in privatepractice was $28,583. gested state agencies need more latitude to negotiate legal fees.

A salaryof $16,608 for an entry level attorneystate public defender and a $15,500 - Ths Gaciuisd Poe. Ia?, 14. 1559 salary for a starting Lexington public defender canhardly compete withthe private sector in Kentucky or nationally.

ThE WIZARD OF ID byBrantParker

"By permission of Johnny Hart and NAS, Inc."

August 1989/the Advocate 4 UNDERFUNDED DEFENSE SERVICES AND EXCESSIVE CASELOADS ABA Finds Criminal Justice in Crisis

The Dash Committee you don’t do that, you go broke. [Uttends to develop a practice that is In 1986, at the request of the American notwhat we would hope it would be Bar Association’s [ABA] Criminal Jç forindigent criminal defendants. dcc Section, the ABA created a special committee, the Special Committee on "Private counsel in that jurisdiction Criminal Justice in a Free Society, to added: study the criminal justice system. Sam Dash chaired the committee that con I think the bar as a whole, for a sisted of state and federal judges, public variety of reasons - numbers of defenders, police, prosecutorsand distin people, financial problems, motiva guished law school professors. tion or lack thereof - probably [does notdo averygood job]. Ithinkthere "Thisreport of the Committee’s fmdings are a good number of good to very and recomnmendations is addressed to all good attorneys who are practicing Americans, because we all have a vital criminal law in [this jurisdiction] stake in this country’s criminal justice who do a large number of court ap system. The report is designed 1 to pointed cases, but I think there is an provide the citizen with a fuller under evenfar largernumberof people who standing ofreal problems of the criminal don’t do a very good job, who are justice system in America, and also, 2 either unmotivated or incapable, National Legal Aid and Defender As to offerprofessionals and planners ideas Ocr whatever the cause may be. sociation: for futurestudy and change. "One assistant public defender felt his a. 150 felonies per attorney per year or The Dash Committee found that under- office provided effective representation b. 300 misdemeanors per attorney per funding of many aspects of the criminal when individual attorneys were carrying year; or justice system is relatedto "much of what average caseloads of 40 to 50 cases, if c. 200 juvenile cases per attorney per the public dislikes about the criminal they were handling felony cases. Ajudge year; or justice system." The underfunding of in that system, however, believed that d. 200 mental commitment cases perat public defender services and the inap with any more than 30 to 40 cases a torney peryear, or propriatelyhighdefendercaseloads were public defenderstarts to lose track ofhis e. 25 appeals per attorney p year. one of the areas the committee ad or her cases. He added that the public dressed: defenderdidnot attempt to cap the num "Moreover, the lawyers in the city noted ber of cases perattorneynor ask formore above are underpaid as well as over Defender Funding and Caseloads attorneys for "political reasons." - worked: "Defense Services: Although all facets "In another city, the Committee found a Ihave attorneys that arein their third of the system are hurt by underfunding, beleaguered defender system overbur and fourth year withour office, who the hearings revealed that the problem denedwithcases, seriously underfunded are making, maybe, a thousand, two can by particularly acute for organiza - and with no apparent means of chang thousand more than someone who is tions withlittle or no politicalpowet As ing the situation. The defender there just starting, and they’re handling noted earlier, because most criminal described each attorney’s caseload homicides. And so, when they come defendants are indigent, the state is tome withbeing stressedout, and the obliged to bear a large part of the cost of I can give you a profile of what the case load, and the responsibilities, providing defense counsel and defense average lawyerwould handle in one and ... tiying to meet expenses at services. Although[citizens] ... believe year, in our office. That lawyer home, I can’t really say too much. that indigents receive effective repre would handle two Murder 1stDegree Assistant Public Defender sentation, studies conclude that indigent cases, one other homicide, 133 other defense systems nationwide are under felonies, 144 misdemeanors, 5 post- "The end result is inferiorrepresentation funded. conviction relief cases, 18 probation for indigents in that city. The delays revocations, 6 extraditions, one mis created because overworked defenders "Several disturbing comments from wit cellaneous writ, and one petition for cannotprepare theircases promptly is the nesses who met with the Committee a release from a mental institution. single largest problem facing the strongly support the findings in the prosecutor there. studies. "These caseloads are unmanageable regardless of how industrious the attor "The Committee was soshocked by the "One judge claimed that the court-ap neys maybe. The ABA supports the fol intolerably overburdened condition of a pointed counsel compensation system in lowing maximum allowable attorney Public Defender Agency in thisjurisdic his jurisdictionrequired lawyers caseloads as adoptedby the National Ad tion that its Chairman met with leaders visory Committee on Criminal Justice of the state and local bar associations, to carry more cases than a lawyer Standards and Goals and endorsedby the who have now, as a consequence of the could effectively handle because, if

August 1989/theAdvocateS Committee’s findings, begun efforts to tance of additional cases or continued many cases. Unfortunately,not even the remedy this situation. - [Defense Ser representation in previously accepted most able and industrious lawyers can vices section from Criminal Justice in cases will lead tothe furnishing ofrepre provide quality representation when Crisis Reprinted with permission. The sentation lacking in quality or to the their workloads are unmanageable. Ex full report is available from the ABA breach of professional obligations, the cessive workloads, moreover, lead to at orderfulfihiment dept. 312 988-5555.] defenderorganizations or assigned coun torney frustration, disillusionment by sel must take such steps as may be ap clients, and weakening of the adversary ABA DEFENSE CASELOAD propriate to reduce their pending or system. STANDARD projected workloads. "The attorney who has too many clients The ABA Standards Relating to In part, theCommentary to this standard also experiences special concerns about Criminal Justice, Providing Defense Ser explains: "The goal inprcwiding defense his or her duties under the Code of vices address what defender organiza services should be tosecure quality legal Professional Responsibility. The code tions are required to do when their representation for persons unable to af admonishes an attorney not to accept workloads are intolerable: ford counsel standard 5-1.1. This ob "[e]mployment ... when he is unable to jective should be pursued regardless of render competent service..."or tohandle "Standard 5-4.3. Workload whether the defense services provided cases "without preparation adequate in Neither defender organizations nor as relate to criminal cases standard 5-4.1 the circumstances." Similarly, the signed counsel should accept workloads or to collateral matters standard 5-4.2. Defense Function standards urge that at that, by reason of their excessive size torneys not accept more employment "One of the most significant impedi than they can reasonably discharge. interfere with the rendering of quality ments to thefurnishing ofquality defense representation or lead to the breach of services for the poor is the presence of Kentucky faces underfunding ofdefense professional obligations. Whenever orassigned coun excessive workloads. All too often in services andexcessive caseloads at every defenderorganizations defender organizations attorneys are turn. The Fayette County funding and sel determine, in the exercise of theirbest asked to provide representation in too caseloads are stark examples of professional judgment, that the accep Kentucky’s public defender crisis.

JUDGES , INDIGENT DEFENDANTS,AND MONEY Counsel appointed to representthedefendant has filed a motion for funds to retain apsychiatrist. Nothing surprising aboutthat, thejudge thought A person too poor to retain his own lawyer understnd*hly lacks the wherewithal to hire a necessary expeitThe motion’s contents, however, did contain a surprise: The attorney was asking for an allowance of$6,000, foran examination ofthe defendant, afull wiitten report, consultation timewith counsel. preparationfor testifying, and finally the actual time spentin thewitness box. Admittedly, the case was a difficultone: The defendant stood charged with having conducted an ongoing series of business swindles in an amount totaling more than $1 mil]ion.The counsel was proposing to explorethe so-called diminished-responsibility defense. Of course, the defendantwould not have to establish Iris mental state. Instead, theprosecution would haveto prove beyond areasonable doubt that at the time of each transaction the defendant was not suffering from a mental condition substantially diminishing his capacity either to appreciate the criminality of his actions or to conform his conduct to the law. Nonetheless, as a practical matter, no defendant can hope to gain an "insanity" acquittal without strong expert testimony. In fact, no lawyer could seriously consider the defense without asolid psychiatric oplnion. On the other hand, if the attorney had any basis for even suspecting that the client had lacked the necessary capacity, she could not safely decline to raiseit, absentaprofessional opinion confining her judgment Ifthe attorney had waivedthe defense without that oanion, any gui]ty verdict would be reversible on the grounds ofineffective assistance ocounsd. Certain though he was that the counsel was absolutely sight to seekapsychiatric expert, thejudge found himself troubled. It was not theapparentirony of spending public funds for someone accused ofembezzling $1 million Civil suits lxought by some of the purported victims had in fact tied up defendant’s assets. In termsofthecriminallaw, be was apauper.Thisin turn presented thejudgewith an insolubleparadox. Thecriminal-justice system rests, inlargepart, on theproposition that anyoncisentitled tocompetentcounsel, andthatifbe cannotafford an attorney, the stale wiliprovideone.Many times, however, an adequate defense requires as in the case of the accused embezzler more than just an attorney. Logically, and constitutionally, therefore, the stale must furnish thewherewithal to obtain those necessaries. flow, though, in terms of constitutional oriininl justice, can a judge discern the line between the necessaryand the merely desirable? Even if the differenceis plain, what should be standard forcompliance?Some appellate courtshave suggested that thestate must furnisheverything that adefendant would provide for himself if only he had themoney. That view is not veryhelpful. A millionaire defendant hasmuch more available money than does an indicted day-laboreror,for that matter, anindicted school-teacber2vcqday, defendants who areby nomeansindigent forgo possiblelines of defense because they simply cost too much. Even under theacute stress ofan indictment, ordinary peoplehave to prioritize their expenditures. Is itthen fair to furnish an indigent defendant, atpublic expense, opportunities a paying defendant could not afford? Assuming allowance of public funds for an expert, should defense counsel receive whatever she honestly thinks essential? Or should we allow a reasonable amount, andrequirecounsel to do thebest shecan? To what extentdoes ajudge, consideringarequest, necessarilyhave so weigh altranarives - thatis. participateindirectly in encouraging ordi co ngstralegychoices?Afterall. beforeajudgecan determinereasonableness ofallowing $6,000 fora psychiatrist’s services, he must first decide ifthe facts of thecase fairly suggest that the services could affect theoutcome. But thejudge’s view may very well differ from, and be less accuratethan, that othe attorney involved. A fiat refusal, or a parsimonious allowance may reflectthejudge’s erroneous rejection of a solid ideathat only appearsfrivolous. Studying the motion on his desk, thejudge remembered theseventhJudicial Commandment: Thou shah notration justice. Too bad, bethought, no one ever explains how to mike sure we have enough to go around.

IHTJJR B. ZOBEL. Judge Massachusetts Superior Court Reprinted by Permission of the author and theChristian Science Monitor.

August 1989/the Advocate 6 TENNESSEE BEGINS STATE-WIDE FULL-TIME PUBLIC DEFENDER SYSTEM

On May 25, 1989, the last day of the The system is being funded by a $6.00 There’s no doubt that the full-time public legislative session, Tennessee enacted litigation fee on all civil/criminal cases. defender system is an asset since judges into law a state-wide system offull-time have current dockets with no criminal public defender offices. The system be The Tennessee Bar Association led the case backlog. The full-time public the and had support gins implementation on July 1, 1989. lobbying for bill the defenders keepthe ci mInRl defense sys of the Tennessee Association of Crimn tem going," said Lather, who heads up In 1986 there were 3 pilot full-time inal Defense Lawyers TACDL. Jim the Dyer and Lake County public public defender offices begun in Ten Lanier, the President of the public defenderpilot program. nessee. Fourmore offices began in 1987. defender conference and former legis On June 12, 1989 the Governor signed lator for 14 years, said "the courts and When asked about the $22,000 entry Senate Bill No. 1057, the state-wide private criminal defense attorneys were level attorney salary in Tennessee as public defender bill, into law after over extremely pleased with the 7 pilot compared toKentucky’s$16,608, Lanier whelming votes of support in the House programs. The private criminal defense said, "I don’t see how you can attract 84-12 and the Senate 29-2. The law bar is happy with a state-wide program full-time professionals to work for that sets up 21 new judicial district public becauseit relieves them ofhaving to take salary. It’ll be hard for us toattractentry defender offices headed up by a public indigent appointments and leaves them level attorneys for$22,000." defender salariedat $55,000, and staffed to their paying clients. The judges are by assistants paid according to the fol pleased to have full-time public The substantially higher salaries in the lowing scale: defenders since they no longer have to adjoiningstate of Tennessee provide ad find private attorneys to appoint to ditional concern for our ability in Ken Years Salary cases." tucky to attract and retain quality attor neys in this region without substantial less than 1 $22,000 TACDL dida survey that found its attor increases that reflect the regional attor 3 $30,250 neys in favor of a full-time public de ney salary reality. 6 $38,500 fender system by a 10-1 margin. The 9 $46,750 Tennessee Bar Association used its clout to initiate the legislation andinsureitwas enacted.

August 1989/the Advocate 7 CAPITAL TRIAL DEFENSE Written Interview with Kevin McNally

Kevin McNally You are a prominent Kentucky Three aspects: First, talking to the loved serious capital cases. A private prac criminal defense attorney who has ones of the victim whose liveshave been titioner with substantial overhead who defended capital clients. Bow were shattered, sometimes destroyed by my charged $20,000 to represent a capital you and are you affectedby your dient client. defendant would make little or nothing if being sentenced to death? he associated himself with co-counsel, Second, talking to parents, friends, hired necessary experts, and otherwise The first time was the hardest. I was neighbors, professionals who have did what was necessary. stunned. For me, the decision to kill or failed, rejected, neglected or otherwise not to kill was easy. Iwrongly assumed abused my client The Department of Public Advocacy the answer was equally obvious to the has been able to pay attorneys han july. It wasn’t Third, realizingthe problems that lead to dling capital cases only $2500, the capital homicide are so complex and lowest attorney fee in the nation for a Having won a few, I thought I would realizing that the answer that society capital defense. Is that enough for an never lose a capital sentencing hearing. provides- execution - is such a phony appointedlawyer in Kentucky to doan On the 4 hour drive home that night I solution. adequate job? realized that this was going to be a lifelong battle. I didn’tknow if! wanted Why have you been willing to take on The Department of Public Advocacy any part of it. I cried all the way home. I the Immense responsibifity of defend chooses to pay $2500 to attorneys will felt it was my fault- even though my ing a capital client? ing todefend capital cases. This is done client didn’t so DPA can use its resources to carry out I thought it would be a good careermove its other important and statutorily re Often victims of serious crimes, espe before going into politics. quired functions. It is a difficult choice cially the family of victims of capital Seriously, I got involved in this work whether to spend money representing a have harsh feelings toward murder, without knowing where it would take youthful offender or a condemned death defense lawyers who fight hard for me. After more than a decade, Ihave no row inmate. But DPA must admit it is a their capital client. What are your regrets. Standing before the community choice, albeit a Hobsou’s choice. reflections about that experience? a privilege. Any and arguing for life is At 400 houra, $2500 equals approxim In talking with survivors of homicide way, my favorite parable is that of the lost sheep, Matthew 18:11-14. ately $6 perhour. If a lawyer’s overhead I’ve been shoved, threatened, menaced is $2.5 perhour, he is losing money every witha hammer, etc. However, it’sa mis Having gone through the extraordi hour he works on the case. This is a conception that the family of the victim nary process of a capital trial, do you disincentive to effective assistance of alwayshasharshfeelings towarddefense feel the death penalty serves a useful counsel $2500 is a token payment, es lawyers who fight hard. The menacing, purpose In our criminal Justice sys sentiallypro bono work. threats and hard feelings generally evaporate quickly upon the fuut expres tern? To illustrate, this month my law parmer sion of human concern and under It is a cruel joke. David Bruck of South Gail Robinson and I have accepted standing. Carolina likes to use the analogy of a public defender cases in Ohio and nuclear power plant that never opens. Arizona. We’ve done this to survive The worst and most frequent mistake economically- while continuing to do capitaldefense attorneys make is treating We just keep throwing money down the smoke stack and get nothing in return. this important work.Our assigned hives survivors of the homicide as the enemy. tigators in these new cases earn $30 per The families of murder victims have Politicians, when they’re not wrapping themselves in the flag, hold execution hour - more than the statutory rate for repeatedly told methey understand, and public defenders in Kentucky. The pay the accused’s right to an out as a solution to violent crime. It’s even support nothing but a cruel, cynical joke on the scale for lawyers in Arizona, Ohio and advocate. It is the absence of com citizens. elsewhere varies from $75 perhour to munication that causes misunderstand $40 per hour. Across the Ohio river, the ing and bitterness. The victim’s family What kind of money and resources cap is $25,000for2axtorneys-Sto 10 must be involved with the process and does it take to fully defend a capital times that in Kentucky. sometimes can be an ally in seeking a client In Kentucky? non-violent resolution of a terrible The $2500 cap was a number picked out tragedy. $50,000-100,000 for 2 attorneys, an in of thin air by the former public advocate vestigator, a paralegal, scientific experts over a decade ago, obviously for K What are the hardest aspects of and mental state experts. Studies show budgetary reasons. For the most part, it defending capital clients? that lawyers spend an average of 400 was used to supplement the payment to hours competently preparing and trying contract public defenders who would

August 1989/the Advocate 8 otherwisebe crushed by the burden of a adopt NLADA’s Standards for Capital wealth. Something must be done. My serious capital case. Due to the "harsh Representation. The rationale is that feeling is we should consider adoption of economicrealities" as described byJus DPA has provided top-notch lawyering certificationor some standards before we tice Wintersheimer of the DPA budget, in these cases. The Court is correct that permit an appointed lawyer to take a this policy has evolved to cover all cases muchof the work done by DPA staffand human life in his/her hands. at the trial, appeal and post-conviction assigned public defenders is well above stage, no matter how difficult or time national standards. For a long time I Do you think capital punishment for consuming. This an unconstitutional agreed that no criteria should be written drug dealers will have any Influence level of funding. Supreme Courts, such in stone. I did not believe that you can on the drug problem in Kentucky? as Florida and West Virginia, across the accurately quantify caring or pride in country have begun addressing the prob one’s work. Of course not. Drug king pins have a lem. Similarly, state legislatures have shorter life expectation than death row responded. However, I’ve changed my mind. I was inmates. The fact is that drug related wrong. Some of the representation homicides are adequately coveredby our Something must happen in the legisla provided Kentucky’s death row inmates present statute. ture or the courts to assist DPA in chang.. has been grossly inadequate. For the ingthe policy. Representative Sheehan’s most part, one will search reported Ken- Any other thoughts? proposal is the most creative I’ve heard. tricky decisions for 200 years in vain DPA must struggle to find a way to in- Perhaps there’s hope there. trying to find an appellate court who crease the involvement of the private bar granted a prisonerrelief because his trial the legal/political battle against this Regardless, DPA needs to reevaluate lawyer didn’t do what he was supposed in this policy. There are too many serious archaic method of criminal justice. This to. Therefore, the problem must be ad is an enormous untapped resource. cases for DPA staff to absorb them all. dressed prior to trial or prior to appoint tryto do sowould burn outseniorstaff To ment, if it is to be addressed at all. KEVIN MCNALLY who remain. On the other hand, it is Attorney at Law unconscionable for DPA to spend 10-20 For example, before Icouldbe appointed P.O. Box 1243 times the resources- depending whether to defenda capital case in Ohio, Ihad to Frankfort, Kentucky 40602 full-time stafforassigned counsel handle be certified by a committee appointed by 502 227-2142 the indictment the Ohio Supreme Court and before cer tification eachlawyermustattend a death Seven of Kentucky’s death row In penalty training seminar. mates had criminal lawyers represent Kevin is afonner Auistant Public Advocate them who are now in prison, dis I was recently contacted by the American with DPA 12 years a an appellate lawyer, barred, or dlsdplined by the bar, or Bar Association Committee established trial service: regional manager and more left the profession before being dis to study federalhabeas corpus. Inquiries recently as chiefof the Major litigation Sec. were made regarding the amazing statis lion. He has represented numerous capital barred.Can the ultimate decision sur dlienk. He is afounding member of KACDL vive that kind of representation? tic that so many Kentucky death row and also a member of th. Kentucky Coalition inmates were represented by lawyers toAbolish theDeath Penalty. Helsenationally The Chief Justice has informally indi whohave since been disciplined. Thisis sought after speakeron capitaldefense topics. cated our Court feels it unnecessary to an embarrassment to our Common- Fact #5 Most of those on death row could not afford to hire a lawyer

According to captal case monitors, more than 75% ofthose on death row were financially unable to hire an attorney to represent them at trial.

For more information: National Coalition to Abolishthe Death Penalty, 1419 V St, NW, Washington, DC 20009 It’s easy to believe in the death penalty if you ignore the facts

August 1989/the Advocate 9 PUBLIC ADVOCACY COMMISSION CHAIRMAN WILLIAM R.JONES A WRJ7TENINTERVIEW

Before answering the questions sub Wedoreview the annualbudget, andin mitted, I should make it clear that the the review process have an opportunity answers are mypersonal perceptions and to ask questions and suggest items. The do notnecessarily reflect the senseof the budget, a fairly complex document Public AdvocacyCommission as a body. which requires an intiTnate knowledge of The Commission simply has not ad the workings of the whole public ad dressed some of the specific questions vocacy system is prepared by the Public asked. Some of the questions askedraise Advocate. While the Commission may issues which are importantenough to be adopt resolutions, address letters to specifically addressed by the full Com members ofthe executive and legislative mission in future agendas, if for no other branches ofgovernmentin support of the reason than to determine whether the budget, and individually write letters and Commission should have a policy relat make contactswithmembers ofthe legis ingtothespecificitem.Itwouldbeinap lature, the Public Advocate necessarily propriate for me to attempt to give has the primaiy responsibility for pro specific answers where the Commission moting the adoptionof theDepartment’s has not adopted a position regarding budget In this, the Public Advocate is them. There is a question in my mind understandably restricted to a certainex about whether the Commission should tent by budget preparation guidelines adopt an official position on some of from the Governor’s office.There is also them. Thus, my responses will often be the problem of the Department’s budget couched in more general and inclusive William R. Jones being part of the budget for the Public terms. Protection and Regulation Cabinet, which includes 14 agencies rangingfrom What are the Commission’s reon The Commission has very limited ability the public service commission and the sibifities? to provide anything more than general department of insurance to the harness supervision over the Public Advocate, racing and the backside improvement The Commissions rather limited respon given the fact that the Commission is commissions. This is one area where the sibilities are set out in KRS 3 1.015. comprised of a shifting membership of Commission needs to explore better These responsibilities are to select the 12 persons from throughout the Com ways to influence the process. Public Advocate, review the perfor monwealth.. In general, our supervision mance ofthepublic advocacysystem and is limited toreview of avery comprehen Why Is it Iniportant to have a Public provide general supervision of thePublic sive quarterly report submitted to us by Advocacy Commission? Advocate, assistthe office of public ad the Public Advocate. However,when the vocacy in ensuring its independence occasion presents itself, we have ad Perhaps the question should be re through public education regarding the dressed matters brought to the Commis phrased: ‘Do weneed a Public Advocacy purposes of the public advocacy system, sion’s attention by the Public Advocate, Commission?" This is not said entirely review and adopt an annual budget an employeeof the Department ofPublic tongue-in-cheek After all, the Depart prepared by the public advocate and pro Advocacy, or a memberof the Commis ment of Public Advocacy was created in vide supportforbudgetaty requeststo the sion. 1972 and the Commission was not general assembly. created until 1982. If the Department A Commissionprogramof public educa functioned effectively withoutthe Corn Of these responsibilities, in my view, tionregarding the purposes of the public missionduringitsfirst l0years,whywas selectionof the Public Advocate is by far advocacy system is simply not possible the Commission established? It is not the most important. As provided in KRS given the fact that we have no staff and clear tome, and legislative history is not 31.020, the Public Advocate is the chief no budget. Individual members of the revealing, why the Commission was administrator of the office forpublic ad Commission do make public statements created in 1982. However, I assume that vocacy. He is appointed for a term of 4 by way of speeches, letters to the editor there was a need perceived and some years which is renewable unless resnov and such, in an attempt to further the articulated reasons for its creation. It ap edby the Governor. It takes a majorityof objectives of the system, and to attempt pears to me that the Commission has the full commission to make a recom to create an understanding of why the beenuseful in severalways: 1 It serves mendation to the Governor pertainingto work of the public advocacy system is to insulate the Department from the more the appointment, renewal of appoint important to protect the rights of all per egregious forms of political interferen ment, orremoval of thePublic Advocate. sons, not just those represented by the ces; 2 Since the Commission is made system in criminal cases. up of a group ofcitizens from throughout

August 1989/the Advocate 10 the Commonwealth, its efforts on behalf What do you see as DPA’s finest system. Unless the salaries for the par ofthe Department may be accorded more aspects? ticular merit system classification in credence than may be the case when which assistant public advocates falls is highly partisanindividuals are speaking; Without question, the dedicated lawyers, increased, or the classification into 3 The Commission provides anon-par particularly those whohave stayed with which they are placed is changed, addi tisan,non-political external review of the the departmentthroughout these difficult tional appropriations will not alleviate operation of the Department; and 4 years, and whohaverendered thehighest this problem. This is an area where there Through the diversity of its membership, quality of legal services to indigent per are various departmentsof state govern the Commission may at times be useful sons accused of crimes. Without their ment which may have attorneys salaries in communicating to the Department of dedication, skill, imagination and will set atunfairly low levels. Perhaps a joint Public Advocacy a general sense of the ingness to lay it on the line, and the effort of these departments is needed. direction in which the Department excellent management of the Depart The Commission’s role, again, would be should be moving. ment’s limited resources, it would be in their contacts with members of the impossible to maintain the high level of GeneralAssembly forincreasedfunding, service rendered by the Department. and attempts to influence the executive department to work for reclassification In LRC v. Brown, 664 S.W.2d 907 What are DPA’s major problems? of these positions. Ky. 1984 the Court ruled that the power of the Speaker ofthe House and Money,Money,Money! This problem is addressed further in question 8. the President Pro Tern of the Senate to Experienced Attorneys Leave DPA appoint members to the Public Ad How is the Commission working to Since August, 1988 14 auomeys have left vocacy Commission set out in KRS insure DPA’s true independence? 31.O151b. c was "Invalid." Id. at DPA with a combined total of service and experience to DPA of 81 years. 924. It went on to decide that "...any I believe that you have true inde persons so appointed may not pendence. As a member of the Public properly serve. However, since the Advocacy Commission, no one has ever UK Athletics Resources General Assembly has properly brought to my attention a case of inter vs. createdthe boards and commissionsin ference with the independence of the ad Ky. Public Defender Resources these situations, the governor should vocate to advocate the cause of his client The UK athletic budget for 1989-90 is fill the vacancies...." Id. How has this If such. is happening, then the Commis $15,971,965. That is a $1,097,865 increase affected the Public Advocacy Com sion should be made aware of it. overthe 1988-89 athleticbudget. DPA’s FY mission and how are these appoint. 1990 budget is $9 million to handle 70,000 ments currently being handled? The Department has many significant cases acrossthe Commonwealth. problems. How do you seethe Depart No doubt the presence of members ap mentsolving the below listed problems pointed by the Speaker of the House and and what role does the Commission B. The Immense burden that capital the President Pro Tern of the Senate play in those solutions: cases put on the Department’s resour would have improved the Commission’s ces, especially the attorneys whohand channels of communication with the A. The gross underfunding of the le those cases. General Assembly. This may have public defender programIn Kentucky helped in promoting the needs of the as evidenced by contract counties More money? Of course. The Commis Department of Public Advocacy. How paying their attorneys the minimum sion has attempted to gamer interest in ever, this is merely conjecture, since the wage and full time public defenders pro bono help from the private barin the Court ruled these appointments were "in starting at woefully uncompetitive and capital litigation area. If we cannot get valid" only 18 months after the Commis unfair salaries. the General Assembly to appropriate sion was established. Currently, the more money for these efforts, the system Governor appoints members to fill these Without question; the public defender shows signs of total collapse in this one 2 positions on the Commission. I do not program in Kentucky is grossly under area. Seek to have the death penalty know whether, or to what extent, Gover funded. The two results referred to may repealed in Kentucky? Litigation on the nors Brown, Collins, and Wilkinson both be addressed in part by increased ineffective assistance of counsel issue? have consulted with the Speaker of the appropriations from the General As Perhaps a suitable vehicle will come House or the President Pro Tern of the sembly. along. In the meantime, working for bet Senate in selecting persons to be ap ter appropriations from the General As pointed to the Commission to fill these 2 A part of the problem with regard to contract counties is that funding comes sembly seems to be the best bet Keep in vacancies. from sources: allotments from mind that inadequate funding is endemic two the in Kentucky. Kentucky ranks 47th in What priorities does the Commission Department of Public Advocacy, and grants from the counties served. Both of funds expended for public defender ser have for the next year? the next 5 vices. But, it also ranks near the bottom years? these sources must be increased. While the Commission may be able to have in per capita expenditures for education The Commission has not formally some effect upon the state appropriation as well. Based upon adopted any priorities. con picture, it is unlikely that their efforts can C. The significant turnover of attor tinuing discussions in the Commission be at all effective when dealing with neys in the Department. over a period of time, however, it is ob county governments. vious that the number one priority is how Do I need to say it again? Money! The to increase the amount of funding avail With regard to the very low salaries for Department has one of the best training able to cany out the responsibilities of full time public defenders, a part of the programs in the country. And young at the Department. problem comes from the fact that KRS torneys can get a lot of experience fast. 31.020 provides that assistant public ad But, there are not as vocates shall be covered by the merit many dedicated

August 1989/the Advocate 11 young attorneys who arewilling tomake Any other thoughts? each quarter since that time. The Com the financial sacrifice necessary to mission urged the Department to inter defend the rights of the indigent as was It is important to keep in mind that the vene in the Wilson case where the Cir the case 20 years ago. Commission is a creature of the legisla cuit Court Judge hasorderedthe Kenton ture and has only those powers given to Gallatin-Boone Public Defender, Inc. to D. The Inability of the Department to it by the legislature. Those are very pay the costs of a capital defense.The hire the best available attorneys due to limited. The members of the Commis motion to intervene was granted and we uncompetitive salaries and the In sion serve withoutcompensation, andthe may now have a vehicle to litigate the ability of the Department to firmly Commission has no staff and no budget. issue of who is responsible for such commit a position to an attorney it Whatever is accomplished by the Com defense costs. On a continuing basis, in wants to hire. mission comes about as aresultofvolun dividual members of the commission teer effort by the members of the Com exert efforts on behalf of the Department This is a reprise ofseveral previousques mission. Therole ofthe Public Advocacy of Public Advocacy and local defender tions. The inability of the Department to Commission since its inception has been programs. As Chair of the Commission, firmly commit a position to an attorney more reactive than proactive. This is I want to take this opportunity to publicly it wants to hire results, as I understand it, partly due to the part-time volunteer na thank all ofthe present andpast members from a general freeze on hiring in which ture of the commission, partly due to the for their efforts. each new hire must be submitted and fact that there is no staffor budget, and specifically approved. In times ofbudget partly due to the inability to have very It would be easy to focus only on the crunches, this is a common technique to many meetings during the year. Because negative side of the public defender sys cut costs. Thisis particularly devastating of the fact that commission membership tem. But I would like to focus on the in a departmentsuch as Public Advocacy is scattered throughout the common positive side, as there are so many very where there are not enough people to wealth and commission members must positive things about the system. The begin with. take timeaway from theirjobs or profes commonwealthis extremely fortunate to sions to attend meetings, it is extremely have been able to attract and keep such a difficult to have even one meeting a large number of dedicated and highly quarter at which a quorum is present. skilled attorneys, given the extremely E. The inability to obtain favorable Depsite these factors, the Commission heavy case loads and lack of adequate criminal law legislation. has taken some steps to attempt to al compensation and support services. What constitutes favorable criminal law leviate the strains on the system. As Kentucky is very fortunate to have a legislation is a question which the Com Chair of the Commission, at the well-managed Department ofPublic Ad mission has never addressed. Perhaps it Commission’srequest, I,along withPaul vocacy which is so efficient in the use of is notone which the Commission should Isaacs, Public Advocate, appeared its limited resources. Without these very address. Probably, there is a substantial before the Board of Governors of the dedicated individuals and efficient difference of opinion among the meni Kentucky Bar Association to ask for a management, it would notbe possible to C bers of the Commission on this issue. resolution from that group urging its offer such quantity andveryhighquality There is probably agreement that the members to devote some of their pro of public defender services in the state. legislaturesofKentucky and other states bono efforts to capital litigation being Everyone working for the Department have over-criminalized much activity in conductedby the Department and to ask has a right to be very proud of their our society today. And some statutory that consideration be given to distribut accomplishments. When I look at the crime has not been updated. For ex ing some of the Bar’s IOLTA funds to statistics on case clearances and results ample, Kentucky has a $100 limit for the Department. The Commission was obtained for the Department’s clients I misdemeanor theft. Also, there has been instrumental in having the Administra am certainly proud to be associated in an increase in sentence length. Kentucky tive Office ofthe Courts adopt a form for even this small way with what the has both "truth-in-sentencing" and per useby District and Circuit Court Judges Department of Public Advocacy ac sistent felony offense senteaicing.Clear in seeking recoupment from defendants complishes. ly, these place additional strains on the represented by public defenders. Thisef fortshas beensuccessful and the amount Bill was appointed to the Commission on July prison system which is already under 15,1982. /tformerDeanofChaseLawSchool, court orders to improve conditions of of recoupment being chaxmeledbackinto he received his J.D. from the University of imprisonment and correct over-crowd local defenderprograms has increased in Kentucky In 1968, and his L.LM. from the ing. Yet, the legislature represents the University ofMichigan In 1970. He iscurrently electorate and last session refused to in- a Professor at Chase Law SchooL creasethe misdemeanor limitfor theft to $500. Depsite theirobviousimpact upon the sentencing process, causing senten ces to be much longer, apparently the legislature is also ofthe opinion thattheir constituency favors such measures as persistent felony punishmentand "truth in-sentencing." Is the Public Advocacy Commission a body which should take a position on criminal law legislation such as this?Should theDepartment ofPublic Advocacybe lobbying for amendmentor repeal of such legislation? I could state my personal opinion, but the Commis sion has not adopted a position, and I must decline to present my personal opinion.

August 1989/ the Advocate 12 REMARKS OF JUSTICE JOSEPH E. LAMBERT On the Importance ofCriminal Defense Work

Supreme CourtJustice Joseph E. Lain- Unfortunately, neither Inorthe members bert spoke at the 17th Annual Public of my Court are in much of a position to Defender Training Seminar on the work address, let along solve, most of the we do as public defenders: problems you encounter. Our foremost duty is to decide issues and cases on a Through the years, I have attended a case-by-case basis. Of course, we have great many luncheons and from ex secondary duties which include rule perience haveconcluded that a luncheon making and review of the discipline im speech should notbe substantive, educa posed upon attorneys. tional, or cause any interference with digestion. A proper luncheon speech As a political and social realist, it is clear should be short, light, humorous if pos to me that the best avenue to elevate the sible, and at most only mildly inspiring. branch of our profession in which you In my remarks today, I promise to abide have chosen to practice is through you. by these normal rules. Of course, the judiciary, other branches of government, and the private bar can Inote from the programthat this seminar help, but no person or group of persons began on Sunday afternoon with all-day is more capable of eloquently stating the sessions on Monday and today.From the importance of representing indigent program, it is obvious that by now you criminal defendants than you are. In a have had a rather intense educational recent issue of the publication of your experience and that perhaps your circuits Justice Joseph E. Lambert organization, The Advocate, a speech by are nearing overload. With that in mind, John Delgado was reprinted. In his ad let me suggest that you relax and I’ll tell defenderyou are outside the mainstream dress is the following statement: you how your training director prevailed of the legal profession in Kentucky. If upon me to be here. you holdsuch a view, it is not surprising It is my very subjective opinion that the Constitution and the government About this timelastsummer, Iwas walk since it is an accepted fact that you are woefully underpaid, substantially and stateof South Carolina, my per ing across Main Street in Lexington with less I sonal jurisdiction, are always served Ed Monahan. I didn’t know Ed well but have learned, than your colleagues in surrounding states. Irecognize also that and protected when an individual is had seen him arguing cases before our afforded a fair trial. It is not, in my Court and had met him on a few cc many of you struggle with a caseload which exceeds any reasonable level very humble subjective opinion, casions. As we walked together, I made of their criminal work which could be expected of an at justice system. Those some comment that as a new Justice, I are our guarantees, our rights, our appreciated the highquality of work per torney. And perhaps worst of all, I suspect that many protections, not George Bush’s. I formed by the Department ofPublic Ad of you feel that your thinkwe are the conservators work is not only unappreciated by the of the vocacy. With that Ed said to me, "Would 1st, 4th, 5th, 6th, 8th and 14th you mind saying that in public?" My public, but is condemned by many as amounting to an interference with the Amendments of the Constitution. response was "Well, no. Ifeel that way We are the law court officers, not so I have no objection to saying it in judicial process rather than as an integral part of the process. necessarily just those colleagues of public." The next thing I knew, Ed had ours that wear badges and service me signed up, a full year in advance to It’s a simple and indisputable fact that revolvers. We are law enforcement make a speech at this seminar. Of course, many ofyou have law school classmates officers and those are the rights and no one canrefuse an invitation extended who were less academically able than guarantees we protect. a year in advance, so here I am. The you, who nevertheless have lucrative, lesson I learned from the experience I If views such as this were more frequent this: good deed genteel, country-club law practices. I havejust recounted is No have no doubt that many ofyou wonder ly brought to the attention of the public, or kind word ever goes unpunished. from time to time why you stay in the perhaps the roleyou play in the criminal business of representing indigent defen justice system would be more fully un Now that I’ve warned you not to expect derstood. As public defenders you anything profound, I have collected a dants forlittle compensation, underpoor should take advantage of every oppor few thoughts to share withyou. conditions, and withour proper recogni tion of the service you perform for our tunity to inform the public that constitu As I stand before you today, I recognize society. tional tights applyto all citizens and that that some of you may feel that as a public you are officers of the court who have

August 1989/ the Advocate 13 undertaken to provide indigent persons of being obstructionism. Such miscon large measure of the briefs filed by the accused of crimes with their constitu duct,whether from theprosecutionor the Department of Public Advocacy and the defense, should be condemned arguments presented tionally guaranteed right to a fair triaL not only by your very able / by the courts, but by colleagues of the appellate attorneys, I was very quickly In additionto increasing awareness ofthe offending attorney. brought up to speed. public interest inherent inprotecting the rights of persons accused of crime, It ismy understanding that this is the 17th I rarely take the liberty of speaking on public defenders must strivefor a greater annual public defenders seminar, and behalfolmy colleagues on the Court, but degree of professionalism. Unlike your from the program it appears to be an on one subject, I will take the risk. The counterparts who are Commonwealth outstanding educational opportunity. members ofour Court have a highregard Attorneys and your colleagues who Seminars such as this one, professional for the quality of trial and appellate ad devote their efforts to a civil practice, associations you belong to, and full par vocacy which comes from the Depart there is less of an assumption that public ticipation in state bar activities all serve ment of Public Advocacy. Generally defenders will at all times practice their to enhance the level of professionalism speaking, we feel confident that trial profession in a thoroughly professional within the area of our profession you counsel is competent and prepared to manner. With full recognition of your have chosen. represent their clients, and that the issues duty to representyour clients in a zealous presented by appellate counsel include manner, at times you have been per It is my view that as a greater level of all issues which might reasonably lead to ceived as obstructionists willing to public and professional recognition is some appellate court relief. engage in any practice,ethical or unethi accorded public defenders, the more cal, to achieve the result you seek.On the mundane but nevertheless important As you must have gathered throughout other hand and as a general rule, Com items of interest to you such as income, this talk, Ifor one very much respect the monwealth Attorneys are more frequent caselaod reduction and staff will be ad work you do. It takes a strong belief in ly seen as the people’s representatives dressed by appropriate authorities. the constitutional rights of citizens to undertake a job whereby you must "take who operate on a higherethical plane and In conclusion and as a personal com in the public interest. all corners" for inadequate compensation men!, whenlcarnetotheSupreme Court, and with inadequate public esteem. But We, of course, know that these general I confess to a measure of weakness in withoutlawyers such as yourselves who perceptions are nonsense. In my brief criminal law and constitutional law as it are wiling to make thepersonal sacrifice tenure on the Supreme Court, several applied to the rights of persons accused and uhdertake unpopular clients and instances of outrageous prosecutorial of crime. I recall hearing terms and causes, our system of law could notsuc misconducthavebeenbrought before the phrases such as "a Brady violation," a ceed. Without your efforts, the rights of Court, and in many instances, such mis Bruton error," or a "Boykinized defen all citizens wouldbe in jeopardy. conduct has been dealt within a very dant" and nothaving any idea what coun harsh manner. Likewise, I have en sel was talking about. I won’t bore you I appreciate the opportunity to appear countered instances inwhich conductby with an explanation or excuse for my before you and wish you well in the public defenders gaveevery appearance condition, but will say that as a result in remainderof this meeting.

1.

August, 1989/ the Advocate 14 WEST’S REVIEW

Linda West KENTUCKY COURT THEFT BY FAILURE TO MAKE the client." The respondentin the instant REQUIRED DISPOSITION case had, at the behest of his client, ob OF APPEALS Wails v. Commonwealth tained leave of court to withdraw as ap 36 K.L.S. 7 at pointed counsel and had then been RCr 11.42 RELIEF-PERJURY June 9,1989 employed by the client. The Court’s Commonwealth v. Basnight decision disallows such an arrangement. Basnight v. Commonwealth In this case, the appellant argued that the 36 K.L.S. 6 at 1 events which led to his conviction of COMPETENCY June 5,1989 theftby failure to make required disposi Mozee v. Commonwealth tion involved a simple contract dispute 36 K.L.S. 5 at 16 The Court withdrew its previous opinion and that no crime was committed. Walls May 4, 1989 in this case, rendered on February 3, had agreed to produce 1,000 football 1989, and issued an amended opinion in programs for the BoyleCounty and Dan In this case, the Court held that the trial which thefull names of theminorvictims ville Booster Clubs. Pursuant to the court did not err when it found Mozee of sexual offenses are replaced with ini agreement, Walls was to sell advertising competent to stand trial. Mozee present tials only. space in the programs and divide the ed evidence at a series of compentency proceeds with the Booster Clubs. Walls hearings that he was mentally retarded collected over $13,000 from the sale of and functioning at the level of a 6 -to-9 the advertising but failed to properly year-old child. The commonwealthcon JURY POLL-RELIEF IF share thefunds withtheclubs.Instead the troverted this proof withevidence that a JUROR IS UNCERTAIN fundswere spentforWalls’ personaluse. year prior to trial Mozee was competent Glass v. Commonwealth and that the deterioration inhis condition 36 K.L.S. 6 at 8 The Court of Appeals rejected Walls’ could be malingering. The common June 5,1989 argument that his acts did not constitute wealth also introduced lay evidence that a crime. "...Walls knew hehad the legal - Mozee had conducted himself as well as During polling of the jury after it obligation by agreements with the the average prisoner at institution dis returned a guilty verdictat Glass’ trial for booster clubs to give the clubs a definite crinaii1 ciplinary proceedings. The Court held second degree abuse, one juror percentageof all proceeds collectedfrom that this evidence provided a sufficient indicated that she agreed to the verdict advertisements. This he failedto do and basis for finding Mozee competent. The "on a lessercharge." The trial judgethen he intentionally dealt with the proceeds Court also held that Mozee was not en clarified to the juror that second degree as his own." The Court cited Blanton v. titled to an additional competency hear criminal abuse was a lesseroffense than Commonwealth, Ky.App., 562 S.W.2d ing prior to sentencing in the absence of first degree. The trial judge overruled a 901978 as authority for its decision. some evidence of change in his condi defense motion to voir dire the juror. don. The Court of Appeals held that Glass had KENTUCKY SUPREME COMPETENCY HEARING no right to voir dire the juror. If he was COURT dissatisfledheshouldhave Pate v. Commonwealth asked thetrial 36 K.L.S. Sat 18 court to declare a mistrial or to send the PUBLIC DEFENDERS. May 4,1989 july back for further deliberations. The PRIVATE REPRESENTATION Court further noted that the juror’s "ini Ky. BarAssn. v. UnnamedA#orney Prior toPate’s trial a competencyhearing tial ambiguous expression of doubt was 36 K.L.S. Sat 15 was conducted, resulting in a findingthat cured by her subsequent unequivocal May 4,1989 Pate was competent. A motion for an answer that she assented to a guilty ver additional competency hearing before dict on second-degree criniiiial abuse." This decision overrules KBA v. Kemper, final sentencing was denied. The Court found nothing in the record Ky., 637 S.W.2d 637 1982, "to the which would indicate a "lack of free and extent it authorizes a part-time public The Court noted that in Moody v. Com voluntary assent"on the part of thejuror. defender to obtain release from his ap monwealth, Ky.App., 698 S.W.2d 530 pointed duties and thereafter accept 1985 itheld that an incompetent defen private compensation forrepresenting dant may not be sentenced. However, as

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

August 1989/the Advocate 15 inMozee v. Commonwealth, supra, the to say that atTinsley’s retrialthe problem those charges. Thus, inthe Court’s view, Court went on tostate "[t]hereis nought of the lost evidencemight be dealt with neither White v. Conunonwealth, Ky., to a continual succession of competency by a "missing evidence instruction" as 725 S.W.2d 597 1987 nor Arizona v. hearings in the absence of some new authorized in Sanborn v. Common Roberson, _U.S. _, 108 S.Ct. 2093,100 factor."Justice Combs dissented. wealth, Ky., 754 S.W.2d 534 1988. LEd.2d704 1988 was applicable. "The fedora] law and the law in the Common KRS 508.100- EVIDENCE-RELEVANCY wealthnow is that, once a charged defen CONSTITUTIONALITY/OPINION Commonwealth v. Johnson dant has specifically requested counsel EVIDENCE 36 K.L.S. 6 at 32 in connection with those crimes for Carpenter v. Commonwealth June 8,1989 which he has been charged, he cannot be 36 K.L.S. 6 at 31 furtherquestionedabout those chargesor June 8,1989 At Johnson’s trial, the commonwealth questioned concerning separate and in was permitted to introduce proof that dependent charges without counsel The appellants, husband and wife, ar during a search ofJohnson’s room police being informed." Justice Combs dis gued that KRS 508.100 was unconstitu officers worerubber glovesbecause they sented. tionally void for vagueness by virtue of hadheardthat"he...mighthaveAlDS..." its use of the words "permits" and "may" The Court agreed with Johnson that this when providing that aperson is guilty of evidence was irrelevant but held that it UNiTED STATES first degreecriminal abuse when he"per was harmless inview of the overwhelm SUPREME COURT mit., another person of whom he has ac ing evidence ofguilt. See Plain View for tual custody to be abused and thereby a discussion of search and seizure issues HABEAS CORPUS." CUSTODY" ...places himin asituation that may cause in Johnson. Maleng v. Cook him serious physical injury." Emphasis 45 CrL 3057 added. The Court held that use of the TRUTH-IN-SENTENCING May 15,1989 word"may" in the statute was notuncon STATUTE-PRIORCONVICTON stitutionallyvague since that language is MeLson v. Commonwealth Maleng’s 1958 state conviction of rob brought into play only when abuse is Cram v. Commonwealth bery resulted in a twenty year sentence involved. As to the statute’s use of the 36 K.L.S. 7 at 9 which expired in 1978. However, the word "permits" theCourt found that this June 29,1989 robbery conviction was used by the state term was unconstitutionally vague an- In this case, the Court held that a prior toobtain an enhanced penalty forMaleng less it was modified by the word "mien on a later conviction. After expirationof tionally." The Court adopted this con felony convictionmay not be used under the robbery sentence, Maleng filed a KRS 532.055, the truth-in-sentencing struction of the statute in order tosave it. federal habeas petition attacking the However, the Court nevertheless statute, unless the time for appealing the 1958 conviction. The District Court dis reversed the wife’s conviction since she conviction has expired or an appeal has missed the petition on the grounds that was found guilty pursuant to a jury in been taken and the judgment affirmed. Maleng was no longer "in custody" pur require that she The Court held that the introduction of struction which did not convictions which were on appeal, at the suant to the 1958 conviction. The Circuit - have intentionally permitted the victim’s Court reversed. The Supreme Court, in appellant’s sentencing hearings on other turn, reversed the Circuit Court, holding charges, was harmless since the convic that Maleng was not "in custody" as re The Court also held that the trialcourtdid tions onappeal wereultimately affirmed. quired by 18 U.S.C. 2241c3. The not err in permitting expert testimony The Court also held that the rule it stated Court held that the fact that Maleng was that the victim’s injuries were intention "does not apply...to pending motions for serving a sentence enhancedby his 1958 ally caused. The Court held that this tes discretionary review." Justices Leibson conviction was insufficient. timony didnotinvade the province ofthe and Vance dissentedfrom this portionof jury. the opinion. SENTENCING-VINDICTIVENESS Alabama v. Smith DOUBLE JEOPARDY RIGHT TO COUNSEL 45 CrL 3073 MISTRIAL-RETRIAL Commonwealth v. Williamson June 12,1989 Tinsley v.Jackson 36 K.L.S. 7 at 5 36 K.L.S. 6 at 45 June 29,1989 In this case, the Court held that the June 8,1989 presumption of vindictiveness recog This case reverses a decision of theCourt nized in North Carolina v. Pearce, 395 Amistrial was declaredover defense ob of Appeals which held that Williamson U.S. 711,89 S.Ct. 2072,23 L.Ed.2d 656 jection at Tinsley’s trial following a was denied his right to counsel when, 1969 does not apply when a sentence failure by the commonwealthto provide while being held on misdemeanor char imposed after a trial is greater thari one exculpatory evidence. Tinsley sub ges, he was utilized in a line-up in con previously imposed following a guilty sequently sought to bar his retrial on nection witha robbery investigation and wasidentifiedastherobber.Priortothe plea. Smithwas given n,ininium senten double jeopardy grounds. cespursuant to a plea bargain. However, lineup, Williamson was advised of and he subsequently succeeded in having his The Court rejected Tinsley’s argument. waivedhis right tohave counsel present. The Court held that. "A party seeking to After being identified, Williamson was guiltypleavacated. Following a trial, the jeopardy same judge sentenced Smithto the max prevent his retrialupon double given Miranda warnings and then gave imum penalties. The Court noted that the grounds must show that the conduct an incriminatingstatement. sentencing information available to a giving rise to the order of mistrial was judge following a guilty plea is far less precipitatedby bad faith, overreaching or At thetime ofthe lineup Williamsonwas not represented by counsel on the than that available to him following a some other fundamentally unfair action trial. Thus,imposition ofaharsherpenal K of the prosecutor or court." The Court charged misdemeanors. The Court addi tionally found that he had made no re ty may be reasonable. Under these cir found no indication of bad faith in the cumstances, the presumption of vindic prosecutor’s action. The Court went on quest for appointment of counsel on

August 1989/ the Advocate 16 tiveness has "no basis." Justice Marshall DOUBLE JEOPARDY SELF-INCRIMINATION- dissented. Jones v. Thomas MIRANDA 45 CrL 310 Duckworth v. Eagan BURDEN OF PROOF- June 19, 1989 45 CrL 3172 PRESUMPTIONS June 26, 1989 Carella v. Caltfornia Thomas was convicted of both felony 45CrL3097 murder and the underlying felony and At his arrest Eagan was given warnings June 15, 1989 sentenced to life and 15 years, respec which deviated from those prescribed in tively. The Governorlatercommuted the Miranda in that he was told that, should At Carella’s trial for theft by failure to 15 yearsentence and the trial court sub he request an attorney, one would’ be return a leased car, the jury was in sequently vacated the conviction for the appointed "if and when you go to court" structed that it could presume intent to underlying felony on double jeopardy The majorityheld that this deviation did commit theft if Carella had failed to grounds. Thomas sought habeas corpus notrenderthe warnings fatally defective return the property within 20 days of a relief arguing that, since the lesser sen by linking the right tocounsel toa future written demand for it following expira tencehad beencommuted, and thussatis event. Other language in the warnings tion of the lease. The jury was also in fied, the trial court should have vacated sufficiently conveyed to Eagan that he structed that it could presume "enibez the felony murder conviction. The 8th could "stop answering at any time until zlexnent" from failure to return the car Circuitagreed withThomas and held that he talked to a lawyer." The Court further within 5 days of expiration of the lease. once he had satisfied one of the two noted that: "We havenever insisted that sentences he could not be required to Miranda warnings be given in the exact The Supreme Court unanimously held serve that the instructions denied Carella due the other. The Supreme Court form described inthat decision."Justices reversed holding that the state court’s Marshall, Brennan, Blackmun, and process by relieving the state of its con remedy fully protected Thomas against Stevens dissented on the grounds that the stitutional obligation to prove each ele doublejeopardy. Justices ment of the offense. See Francis v. Brennan, Mar deviation in the warning could "lead a shall, Scalia, and Stevens dissented. suspect to believe that a lawyer will not Franklin, 471 U.S. 307, 105 S.Ct. 1965, be provided until some indeterminate 85 L.Ed.2d 344 1985. time in the future after questioning." LINDA K. WEST Assistant Public Advocate Appellate Branch Publications Available Frankfort

Involuntary Civil Commitment MOTIONS COLLECTED, a manual for lawyers and judges CATEGORIZED, LISTED

Amanual for training lawyers and judges on representing clients with mental illness The Department of Public Advocacy has in involuntary civil commitment proceedings is available from the Commission on collected many motions filed in cnininal the Mentally Disabled. This hands-on manual, with sections for the respondent’s cases in Kentucky, and has compiled an attorney, the state’s attorneyand the judge,provides practical guidance for each step index of the categories of the various mo of the process, beginning with pre-trial hearing issues and continuing through dons,andalistingofeachmoiion. Each post-hearingresponsibthties - motion is a copy of a defense motion flied in an actual Kentucky criminal case. They Also included are 40 pages of charts detailing more than 125 statutoryprovisions in were updated in February, 1989. the nation’s 51 jurisdiction. The manual is available for $30.00. For orders of 10 or more the charge is $20.00 per copy. Please make your check payable to ABA/FJE COPIES AVAILABLE include $3.00 for postage and handling and send to ABA, Commission on the Mentally Disabled, 1800 M Street, Washington, A copy of the categories and listing of mo N.W., D.C. 20036. tions is free to any public defender or criminal defense lawyer in Kentucky. Copies of any of the motions are free to ABA Criminal Justice Mental Health Standards public defenders in Kentucky. whether full- time, part-time, contract, or conflict. Criminal defense advocates can obtain The ABA Criminal Justice Mental Health Standards provide assistance on a wide copies of any ofthe motioni for the cost of range of issues concerningthe involvement in the criminal justice system of persons copying and postage. Each DPA field office withmental disabilities from pretrialevaluations and expert testimony to sentencing has an entire set of the motions. offenders withmental illness and mental retardation. The 102 "black letter" stand ards are official ABA policy. Limitedquantities of the 500 page edition PC Order HOW TO OBTAIN COPIES Number 509-0041 are available at no cost. Order from: If you areinterested in receiving an index of ABA the categories of motions, a listing of the available motions, or copies of particular Order Department motions, contact: 750 N. Lake Shore Drive Chicago, illinois 60611 TEZETA LYNES 312 988-5555 DPA Librarian Please include the order number with your request. 1264 Louisville Road Frankfort, Kentucky 40601 502 564-8006 Extension 119

August 1989/the Advocate 17 6TH CIRCUIT HIGHLIGHTS

Donna Boyce

RULE 11 AND MONETARY paralegal/secretarial charges. The dis of thejudgment in the five days between SANCTIONS trict court was also ordered to snake a its entry and his departure for vacation, specific finding with respect to Gettys’ although his office received notice of it. The Sixth Circuit addressed the assess ability to pay the sanction imposed. The 2. counsel did notlearn of the decision ment of attorneys’ fees sanctions under Court concluded that because the immediately upon his return 2 weeks Rule 11 of the Federal Rules of Civil primary purpose of Rule 11 is to deter laterbut learned Jackson v. of it 7 days after return Procedure in Law Firm of filing frivolous lawsuits and filing court from his vacation. 3., counsel did not O’HarA_F.2d_, 18SCR 12,126th papers for improper purposes, full file notice of appeal during The districtcourthadordered the 5 days Cir. 1989. recovery of reasonable time and expen remaining in the 30 day period but in attorney RobertGettys to pay attorneys’ ses incurred by the offended party is not stead "miscalculated" the time period fees of more than $40,000 to three law invariably required and that extenuating and filed the notice late. The Court noted firms which defended a legalmalpractice circumstances should be taken into ac that such errors indicated a serious lack action brought by Gettys against the law count. of diligence and inattention to the firmof O’Hara. The Court found that the everyday detail of thepractice of law and recordfullysupported the district court’s EXCUSABLE NEGLECT could not be considered to be inadver conclusion that Gettys violated Rule 11 STANDARD FOR LATE NOTICE tence which occurred despite counsel’s by filing a legal malpractice complaint APPEAL affirmative efforts to comply. for improper purposes without making a reasonable inquiryinto the factsor exist In Marsh v. Richardson, - F.2d _, 18 EXPENSE OFTRANSPORTING ing law. Gettys stipulatedthe reasonable SCR 10, 176th Cir. 1989, the 6thCir TO TRIAL AND DEPOSiTION expenses ofthe law firmrepresenting the cuit dismissed therespondent’s appeal of EXPENSES AS COSTS O’Hara firm were $14,655 but contested the granting of habeas corpus relief to the assessment of $16,308 to the O’Hara Marsh on the ground that the notice of InSalesv.Marsha1l,_F.2d 18 SCR flim and $9,500 to a firmrepresenting a appeal was untimely filed. Respondent 10,5,45 Cr.L 2094 6th Cir. 1989, the formerO’Harapartner. filed a latenotice of appeal more than 30 Sixth CircuitCourt of Appealsaddressed days after final judgment was entered. the determination and allocation of costs Apparently because of the flagrant na When Marsh moved to diemias on that in state prisoners’ civil rights actions. tore of the violation, the district court ground, respondentfiled a motion to ex The Court held that where a state has computed attorneys’ fees at a rate higher tend the time period within which to file beencompelled by a writ of habeascor than that ordinarily paid in the com notice of appeal. The district court pus ad tesriflcandwn to transport a state munity and added20% to the actualchar granted the request, finding that coun prisoner to and from federal court for ges for paralegal/secretarial worL The sel’s vacation, his lack of know-ledge irialofhis civilrights action, the expense 6th Circuit stated that in most cases, in that the underlying judgmenthad issued, oftransportation cannot be taxed as costs cluding the presentone, a "lodestar"cal the workload handled by his agency and against the unsuccessful prisoner- culation of attorneys’ fees and actual the important nature of the legal issues litigant. The Court also held that Sale’s charges for related expenses provide a presented established "good cause" for indigency did not prevent the taxation sufficient deterrent. The Court recog the tardy filing. against him of the costs of taking and nized that imposing monetary sanctions transcribing depositions reasonably pursuanito Rule 11 above a defendants’ The 6thCircuit held that underFR.A.P. necessary for the litigation. The statute actual litigation costs may be construed 4aX5, "good cause" is applicable only that permits an indigent party to proceed as a fine imposed for criminal contempt to cases where the motion to extend is in forma pauperis merely provides that and,thus, greater due process safeguards filed before the 30-day time period ex such a person may commence a suit might apply. pires. Otherwise, the grant of an exten without prepayment of fees and costs. sion should be evaluated under the "ex While such costs can be assessed against. The Court also stated that the district cusable neglect" standardwhichhascon court should determine if any equitable an indigent civil rights plaintiff at the sistently beenheld to be strict and canbe conclusion of the action, a determination considerations exist for setting the total met only in extraordinary cases. The 3 attorneys’ fee sanction at an amount less of the reasonableness of the amount errors by counsel in this case were found claimed and the party’s capacity to pay than the total requested by defendants not to be excusable under this standardi under the standard the assessed costs must be made when a and found reasonable 1. because counsel had no system to party claims indigency. ofprevailing market rate and actual bring it to his attention, he didnot learn DONNA BOYCE This regular Advocate column highlights published criminal law decisions of significance of the 6th Circuit Court of Appeals except for search and seizure and death penalty decisions, which are reviewed in Plain View and The DeathPenalty columns.

August 1989/the Advocate 18 _____

PLAIN VIEW SEARCH AND SEIZURE LAW AND COMMENT

Fznk Lewis Over the past few years, the Reagan The Court of Appeals condemned both resist. See for example Terry v. Ohio, Rehnquist Court has wreaked havoc on searches as being in violation of the 4th 392 U.S. 1, 88 S.Ct. 407,9 LEd.2d 889 the constitutional tights of accused per Amendment and Section 10. The 1968 and its progeny. Secondly, the sons, particularly in the 4th Amendment Supreme Court granted discretionary Court based its holding entirely upon area. It was thus almost withrelief that review. Commonwealth p. Johnson, Section 10 ofthe Kentucky Constitution. the end ofthe October1988 termfocused Ky., - S.W.2d 1989. Kentucky’s Section 10 has been all but upon such things as abortion and flags, ignored inrecent years, after many years and left alone the now emasculated 4th First, the Court, in an unanimous of extensive use earlier in the century. It Amendment. Our attention thus focuses decision authored by Justice Lambert, is heartening to see the Kentucky high on other Courts, and particularly two held that the Penny Pincher search was court vigorously protect the privacy decisions of the Kentucky Supreme not unconstitutional. Because Johnson tights of our citizens under Section Ten Court. had left his door ajar and his curtains at the same time the United States open,he exhibiteda reduced expectation Supreme court is turning a deafear to the of privacy. "[O]ne who asserts that his tights protected by the 4th Amendment. THE KENTUCKY rights have been violated by an un SUPREME COURT reasonable search accomplishedby look All the Justices agreed upon the affir ing through a motel room window or mance of the defendant’s conviction The Kentucky Supreme Court recently door must show that he took precautions based uponthe Penny Pincher search. On granted discretionary review of a case sufficient to create an objectively the Ramada Inn search, Justices Winter involving two particular searches. In reasonable expectation of privacy." Id. sheimer, Stephens, and GauL dissented. 1985, a motelguest at the Penny Pincher Master Slip Opinion, p.4. Further, the BecauseJustice Combs didnotsit on this Motel called the police, complaining of officer’s act of shining a flashlight into review of the Court of Appealsdecision, a disturbance. Upon arriving, the police an area concerning which the defendant the Court of Appeals was affirmed "by saw Charles David Johnson, a "known had exhibited this reduced expectation an equally divided Court." drug user", who appeared tobe underthe was merely viewing items in plain view influence. While one officer talked with from a place he had a right to be. Justice Wintersheimer in dissent Johnson, another shined his flash light "strongly" rejected "any implication through an opening in the window cur The Commonwealth did notfare as well from the majority opinion that this search tain. Because drug paraphenalia, a white on the Ramada Inn search. The Com was a pretext. lie would have affirmed powdery substance, and a handgun were monwealth attempted to justif’ that the conviction related to the search of observed, Johnson was arrested and a search based upon an officer’s safetyex Johnson’s room at the RamadaInn based search warrant obtained and executed, ception to the warrant requirement. It upon his concern forthe police officer’s revealing each of the previously viewed should be recalled that Johnson had had safety. "The police entry into Johnson’s items. a handgun in his room but 3 days earlier. Ramada Inn room vas perfectly That factjustified the officers in follow reasonable to assure that he did not Three days later, Johnson was seenin the ing Johnson into his room in order to emerge with a gun inhand." parking lot of a Ramada Inn. The police observe him while he was getting his car obtained a warrant for Johnson’s car; key, according to the Commonwealth. Justice Combs joined the Court to author however, the district judge turned down the 4-3 decision in Mash v. Common the petition for a search of Johnson’s The Court rejected this argument, saying wealth, Ky., 769 S.W.2d 42 1989. room. The police went to the room in that such a police protection exception Here, Officer Clovis Lovelace saw two order to execute the warrant on the car, would allow the police to "engage in men "hunched over the street" at night. and again discovered the room ajar. forced, warrantless searches in a multi WhenLovelace arrived, oneman leftand Johnson answered the door by stepping tudeof otherwiseprohibited circumstan went to a house. Mash on the other hand inthe hallway. After he was told of the ces." The Court further expressed con stood up and put money in his pocket. warrant to searchhis car, he agreed to get cern that such an exception would open Because Lovelace believed gambling akey, eventually went backinto his room the door forpretexual searches. was going on, he arrestedMash, and took him tothejail, where an inventory search andtriedtoshutthedoor.Thepolicekept Thisdecision isremarkablefor 2reasons. him from doing so, went into the room was conducted under somewhat suspi First, the call for reduced privacy tights cious circumstances. The gambling and again discovered drugs and in order tosecure increased police safety paraphenaiia. charge was at some point dismissed. has long been a difficult temptress to Later, Mash filed suit against law enfor

This regularAdvocate column reviews all publishedsearch and seizure decisions of the United States Supreme Court, the Kentucky Supreme Court and the Kentucky Court of Appealsand significant cases fiom other jurisdictions.

August 1989/the Advocate 19 __

cement authorities. One year later, the Graham felt an insulin reaction coming Payton v. New York, 445 U.S. 573 pills were analyzed and said to be LSD. on, andhad a frienddrive him to a store. 1980, which then tainted the consents Marsh’s suppression motion alleging an Because theline at thestore was toolong, to search given by the defendant and his illegal arrest was denied, and he ul Graham left and asked his friend totake wife. This case represents a reasonable tixnately was convictedand sentenced to him to another friend’s house. Officer and important extension of the Payton twenty 20 years as a PFO 2nd. Connor followed, thinking something rule. "Here the governmental intrusion, was going on, and stopped the car. Con without consent and without a warrant, The Court reversed, holding that ner called for backup assistance, while was in the form of extreme coercion Lovelace did not see a misdemeanor Graham passed out. Once the other of which effected the arrest of Maez while committed inhis presence. Thus, the ax- ficers arrived, Graham was rolled onto he was in his home." rest was illegal, and the jail inventory the sidewalk with his hands cuffed be- search was a tainted fruit of the illegal hind his back. He was then shoved face United States v. Boruff, 45 Cr.L 2109 arrest. down onto the car hood, and eventually 5th Circuit, April 21, 1989. Boruff into the car. Orange juice brought by a called Howell to testify at a suppression KRS 431.005ld reads that an officer hearing in order to establish standing. "may make an arrest...without a warrant friend to relieve the insulin reactionwas refused by the police.During the ordeal, When the government then called when a misdemeanor, as definedinKRS Howell at trial, Boruff objected, citing been committed in his Graham’s foot was broken, among other 431.060, has injuries. Once the police found out that Simmons v. United States, 390 U.S. 377 presence." Lovelace obviously did not 1968, which had held, among other gambling. is questionable nothing had happened at the store, see Mash It Graham was released. things, that a defendant’s testimony whether he had probable cause or even could notbe used against him at trial,nor an articulable suspicion that anything Obviously Graham sued, under 42 could matters revealed by him at that was going on. Thus, the arrest was U.S.C. 1983. The Court reviewed the hearing. The Court held that because reviewed as violative of KRS case in orderto determinewhat standard Howell testified at the hearing, the 431.005ld. "[T]hesubsequent search applies to excessive force cases brought government could call him at trial con and seizure were also illegal and viola under 1983. Using Tennessee v. Garner, sistent with the Simnw,rs rule. Counsel tive of the rights possessed by appellant 471 US. 11985, theCourtheld that "all should consider this risk, therefore, under Kentucky Constitution Section claims that law enforcement officers wheneverputting on anyone at a suppres 10." have used excessive force-deadly or sion hearing. the The Commonwealth tried to save the not-in course of an arrest, inves tigatory stop, or other ‘seizure’ of a free State v. Hill, NJ., 557 A.2d 3221989. convictionby citing Cooper v. Common citizen should The fact that a car was parked illegally wealth, Ky. App., 557 S.W.2d 341979. be analyzed under the 4th Amendment and its ‘reasonableness’ did not authorize the police to enter it There, an officer stopped Cooper for looking for identification nor open con speeding and smelled marijuanawhenhe standard, rather than under a ‘substantive due process’ approach." The reasonable tainers therein. The police should have rolled down his window. The Court ap merely issued a citation under these cir peared to hold that because the officer ness standard "is an objective one: the question is whetherthe officers’ actions cuinstances;while a communitycaretak smelled marijuana, he then bad probable are ‘objectively reasonable’ in ing exception to the warrant requirement cause to believeCooper had beenin pos light of the facts and circumstances confronting exists, it did not apply here where the session of marijuana. them, withoutregard to their underlying police did not even take custody of the car, was The Court rejectedthis argument, saying intent or motivation." nor the car parked in such a way Cooper had "attempted to graft the more as to cause anyone any problems. relaxed probable cause standard into THE SHORT VIEW Smith v. United States, 45 Cr.L 2137 43l.0051d where it does not KRS - D.C. Ct. App. en banc April 28, 1989. belong." The Court overruled that por Ricks v. State, Ala., 771 P.24 1364 Cl. The police acted improperly when they tion of Cooper. By doing so, the Court detained the defendant after observing further breathed new life into KRS App. 1989. The police, through an in formant, purchased drugs from Ricks, him talk to two people who minutes 431.005, an important tool for defense beforehad engaged in a drug transaction. attorneys who practice in district court. who was serving as a bartender at the time. Fifteen minutes after the arrest, Neither the fact that the area was a high Justice Vance dissented, joined by Jus they picked up a jacket on a coat rack crimeIdrug area, nor that the defendant tices Lambert and Wintersheimer. Jus 10-15 feet from Ricks, and, after deter walked away at a fast pace once the tice Vance saw the facts asindicating that mining that it belonged to him, searched plainclothes officers got out of their car Lovelace had seenMash gambling. Fur it and found drugs. The Alaska Supreme were sufficientto constitute a reasonable thermore, the dissent would not have Court held the search to be unconstitu suspicion. overruled Cooper, saying that there, too, tional, declining the search incident to a People v. Robinson, 45 Cr.L 2150 Cal. the officer had observed the mis lawful arrest exception to the warrant Ct. App. First District April 18, 1989. demeanor being committed in the requirement because the coat was out The act of scraping paint on a newly officer’spresence. side the defendant’s immediate reach at painted car in order to see what color is the time of his arrest. underneath is a search and seizure. THE UNITED STATES United States v. Maez 45 Cr.L 2104 ERNIE LEWIS SUPREME COURT 10thCircuit, April 19, 1989. A SWAT Assistant Public Advocate team surrounded the defendant’s home, Director One mid-May decision of the United and over loudspeakers demanded the DPA Madison/Jackson County Office States Supreme Court is worthy of note. Maezes to come out. When they did, 201 Water Street In Graham v. Conner, 490 U.S. 109 consent to search the truck and house Richmond, KY 40475 S Ci 1865, 104L. Ed. 2d443 1989, the were obtained. The 10th Circuit found 606 623-8413 Court reviewed an appalling arrest. these circumstances to be violative of

August 1989/the Advocate 20 Juvenile Law Cruel & Unusual Punishment! Louisville’s LegalAid Society Takes on Kentucky’s Juvenile Justice System.

Barbara Hoithaus

The Legal Aid Society of Louisville, Ken in the United States. Through various "It’s good for kids to be active and fully tucky has filed a suit in federal court which programs, Congress hopedtopieventjuvenile occupied."Richart says. "In addition, it’s bet could open the way to major reforms in the delinquency, to divert juveniles from the ter for the physical structure of the building. Unified Juvenile Code. The plaintiffs seek traditionaljuvenile justice system and topro Children are not capable of sitting still for injunctiverelief from certain typesof confine vide alternatives to the institutionalization of long. Kids injail and lockup usually have the mentthat have been condemned by Congress juveniles. option of watching televisionOr reading the as unsuitable for juveniles. bible. Asasesult, theyareresdess andinclined According to Dave Richart,ExecutiveDirec to tear up the building." The class action suit, Jesse James, et aL v. tor of Kentucky Youth Mvocates, the Act Wallace Wilkerson, et al., Civil Action No. caine about in pan due to testimony before Only two facilities, the detention centers in C-89-0139-PCS, United States District congressional hearings about the history of Jefferson and Fayette counties, are currently Court, Western District of Kentucky at crimesand abusescommitted againstchildren in compliance with the federal regulations. Paducah,was ified on behalfof all children in who wemeincarceaniedin Kentuckyjails in the Both of these facilities am chronically over Kentucky who are at risk of confinement in sixties and seventies. crowded. adult jails and lockups or who as status of fendersor non-offenders areatriskofconflne The Actestablishes a formula grant program The other type of harm alleged in the suit, ment in secure facilities with delinquent of through which state and local governments incarcerating non-delinquent offenders in fenders. The action assumes that every child can receive funds for programs related to secure or locked facilities is wrong "because in the state is subject to these practices. The juvenile justice anddelinquency. In return for status offenders have family or emotional numberof class members is estimated at more the grant money, the participating states are problems," Richart says. "They don’t need to than 1,096,000 persons. required to comply with the standards and be locked up. They need to be helped." practices set forth in the Act. The suit, which involves two distinct legal According to Richart, family based problems theories, alleges that in addition to 8th and These requirements include a strict mandate cause children to mistrust authority figures. l4thAmendnientviolaiions, thepracticescre that no child be incarceratedin an adultjailor - Their treatmentoften involves teaching them ate a causeofaction under the Juvenile Justice lockup and that non-delinquánt children to trust adults. Locking them up only under- andDelinquency Prevention Act. should not be placed in secure detention mines theirrecovery and rehabilitation. facilities or securecorrectional facilities. The Legal Aid attorney, Kelly Miller, hopes to only sanction provided for non-compliance As for "mixing" non-delinquent with delin obtain adeclaralionfrom thefederalcourtthat with these requirements is the suspension of quents, Richart says, the harm is obvious. It children in Kentucky cannot be held in any the grantmoncy. Howe’ver,an fllinoislawsuit, exposes them to criniinal behavior and in adult facility regardless of the fact that they Hendrickson v. Griggs, which is currently on dividuals who are usually older and more are separated "by sight and sound from adult appeal from the Southern District of Illinois, sophisticated. prisoners." The currently practice pennitted held that the Act creates a cause of action injunctive reieL Richart is concernedbecause the philosophy by the Juvenile Code. In addition, she wants meriting which traditionally governs the juvenile jus a ruling that non-delinquent offenderscannot tice system, that the systemshould act in the be heldinany type oflocked facility cr"mixed Only twostates, KentuckyandWisconsin, are notin compliance with theAct Kentucky has best interest of the child, is being undermined in" with delinquent offendersin any institu current popular tion or facility. beenroutinely denied funds for its non-com by the outcry for punishment plianceand then granted an exemption on an andviclim’srights. lie sees thesuitas ameans Ultimately, Ms. Miller would like to see all "emergency basis." This year however, the to educate public officials about the liability non-delinquent offenders receiving ap governor’s office has been informed that no they can incurwhenthey Incarcerate children. propriate treatment in community-based exemption will be available. Given The Act can serve as the standard for deter facilities in or near their home towns. Kentucky’s habitual non-compliance, Mr. mining theliability of state and local officials Richart feelsthat afederalcourt injunction is when harm occurs. Ms. Miller is fairly confidentthat her request the only way Kentucky will comply with the forclass certification will be granted. Thereis federal requirements. NOTE: Anyone with information about currentlyone namedplaintifffor each type of children who may qual4fy as named confinementchallenged in the suit. Howeves According to Richart, the harm involved in plaintffs can contactKelly Miller, Legal her office is still interestedin receiving infor incarceratingchildrenin adultfacilitiesinvol Aid Society, Inc., 425W. MohammedAli rnationof otherchildren whomight qualify as ves farmore than the stigma involved or the Boulevard, Louisvilie, Kentucky 40202, namedplaintiffs. In addition, the information possibility of exposure to criminality. 502 she receives through the discovery process Children in jail require and are entitled to 584-1254. The confidentiality of may leadto future law suits on related issues. services that adultare not. None of the adult theindividualchildren will be respected. facilitiesarecurrentlyproviding theselevelof services, required by federal regulation, BARBARA M. HOLTRAUS The Juvenile Justice and Delinquency Protec Richart says. These services include a full- Assistant Public Advocate tion Act, 42 U.S.C. 601, et. seq. was enacted time nurse, full-time recreational and activity Post-Conviction Branch in l9l4inaneffort to establishnationaistand director and a full-time educational staff. Frankfort ards toimprovethe quality ofjuvenile justice

August 1989/the Advocate 21 EVIDENCE IN CRIMINAL LAW CASES

Mark it down. On January 1, 1992, ac upcoming issues of The Advocate. which they hope will be approved by the cording to the timetableproposed by the Supreme Courtsothat it canbe used like Kentucky Bar Association Evidence In this issue, thereare two topics to cover. thecommentary to the PenalCode or the Rules Committee, a Kentuckyversion of First there is an outline of the proposed Uniform Commercial Code. The Com the Federal Rules of Evidence will go Kentucky Evidence Code to provide mittee also hopes to have the Supreme into effect. At the 1989 KBAConvention some information about the general Court establish a permanent review com in Louisville, the Committee members goals and purposes of the Committee and mittee for the rules so that changes can made a report to the Bar in which they some of their more interesting proposals. be suggested and reviewed by this com stated that they intended to submit their The second topic has to do with the ad mittee on a structured basis. The Com rules proposals to the Supreme Court in missibility of exculpatory or inculpatory mittee intends for the rules to be ap July, 1989, to be followed by considera plicable in all courts of the Common tion by the Court, submission for com wealth, but not applicable in determina ment by the bench and Bar, and enact tions of admissibility of evidence, grand ment of enabling and supplementary juries, preliminary hearings, small legislation by the 1990 General Assemb claims court, final sentencing, probation ly. Althoughthere is still a periodof time hearings, bail proceedings, or contempt before the date on which the rules will go hearings. into effect a number of important steps aregoingtobetakenwithinthenext 6 The proposed evidence codewill follow to 12 months. Obviously, anew evidence the structure of the Federal Rules of code is going to make a major change in Evidence. One of the striking changes thewaycriminalcases areprepared,tried will be on preservation of trial objec and appealeWe as lawyers have to be tions. Presently, underRCr 9.22 an issue ready to usethesenew rules’to maximum is preserved by a general objection. A advantage. In part, the imminent change lawyerneedstate grounds onlyif the trial of evidence law explains the appearance judge requires them. Under the new of this evidencecolumn as a regular fea code, this will change and each time an ture of The Advocate. Over the next few objection is made the lawyer must state years, I hope to be able to review the the grounds or the issue will not be major features ofthe new EvidenceCode Drawing by Kevin Fitzgerald preserved. The Committee also intends to allow public advocates and others an to encourage motions in ilmine to pre opportunity to see what the law will be, out-of-court statements against penal in serve error and to discourage interrup howit might affect criminal cases, what terest. This is the only Federal Rule of tions that occur when a lawyer who has problems might arise, and what alterna Evidence adopted by the Kentucky already lost an objection stands up again tives might be proposed before enact courts and it is interesting to examine to protect the record. ment to prevent these problems. how the Supreme Court of Kentucky has dealt withit since adoption in 1978. Asto preliminary findings of factneces The new Evidence Code will not be the sary for the determination of admission only topic covered in this column. A RULES COMMrI’TEE REPORT orexclusion ofevidence, the Committee number of lawyers have commented has decided to follow the approach set overthepast few years thatTheAdvocate At the KEA Conventionon June8, 1989, out in Bourjaily v. U.S., 107 S.Ct. 2775, should have a regular feature dealing Robert Lawson, Chair of the Committee 97 L.Ed.2d 144 1987, That approach with evidence, one that tells advocates to adapt the Federal Rulesof Evidencein provides that in making preliminary about new evidence cases decided in Kentucky and a number of the Commit determinations of fact a judge may con Kentucky and federal courts and’one that tee members gave a report concerning sider anything and everything, except deals withspecific evidentiaryproblems theproposed Rules of Evidence that they where that evidence is not admissible on encounteredby the trial bar. This column intended to submit to the Court in July, the ground of privilege. In theory, at will, Ihope, give proper attentionto each 1989. According to Lawson, the Com least, this is a major change from present of these purposes set out above and most mittee has tried to eliminatealmost every practice. evidentiary statute and to achieve that likely will deal with one or all of them in With regards to presumptions, the Com issue. Of course any suggestions for end they have included in the proposed each codes all the evidentiary privileges that mittee followed what they called the topics or solutions to evidentiary "bursting bubble" approach which problems will be most welcome and, like they think are important. The Committee prepared a written commentary describes presumptions that only excuse as not, will end up being considered in has also

August1989/the Advocate 22 production ofevidence. According to the Richardson limitation would be elimin other cases decided since Crawley shows Committee, once the defendant intro ated in criminal cases because impeach that the Supreme Court intends to give duces any evidence of substance on the ment would be allowed by means of any the rule a verylimited application. How matter, the presumptive bubble bursts felony and by misdemeanors based on ever, when your client’s defense is that and the Commonwealth will have the dishonesty or false statement. The Com anotherperson did it, and you have come duty to go forward and persuade. The monwealth would not be allowed to across an out-of-court statement by the Committee has made exception for cer identify any of these prior crimes unless person you claim didit, it is necessary to tain unspecified statutory "overrides" the defendant denies them. The defen know how to getthis important informa which apparently they feel are necessary. darn is allowed, if it is in his interest, to tion before the jury. Review of a few identify the nature of the prior crimes cases show how this can be done. One major and welcome change is in the beforethejury. The Committeefollowed area ofcharacter evidence. The new code thefederalruleandputa lOyearlimiton It is important first to constitutionalize proposes to do away withproof of char prior convictions unless the judge finds your argument. In State v. Koedatich, acter by means of reputation. The Com some particular relevance in the prior 548 A.2d 939, 976 NJ., 1988, the mittee has followed the federal rules to conviction. A defendant who is currently Supreme Court of New Jersey collected allow introduction of opinion evidence appealing a prior conviction could,under a number offederal and state court cases concerning a person’s reputation. One the new rules, be impeached with that whichhave interpreted the constitutional significant addition is a provision that prior conviction. The Committee has holding in Chambers v. Mississippi as allows the Commonwealth to introduce decided to do away with the appellate requiring courts to allow a defendant to opinion evidence concerning the peace exemption for impeachment. prove his innocence by showing that ful character of a deceased person in any someone else committed the crime for homicide proceeding. The Committee Thefinal main point of the new codehas whichhe is charged. Therefore, you may also makes explicit provision for admis to do with opinion testimony. The Com fairly argue that your client’s right to sibilityof habit evidence, somethingthat mittee proposes to eliminate the "ul prove that someone else committed the they felt may or may not already be the timate fact" rule aswell as the distinction crime is part of the right to present a law of Kentucky. The rape shield law between the examining and the treating complete defenseunder the Due Process currently found in Chapter 510 of the physician in the use of medical history. Clause of the 14th Amendment and the Penal Code would be transferred to the When an expert uses hearsay as a basis 6th Amendment of theU.S. Constitution. Evidence Code and certain changes for his opinion he will no longer have to [Crane v. Kentucky, 476 U.S. 683 made, although the Committee did not use the phrase "customarily rely" in 1986]. Your client also has rights under say exactly what changes would be order to testify. Rather, under the new Sections 7 and 11 of the Constitution of made. rules, the basis for admission is whether Kentuckytopresent a defensethat some any expert would reasonably rely on this one else did the crime. The only liniita The Committee proposes to put every hearsay information. tion that the constitutional rights to privilege of any importance into this present a complete defense would allow code. Privileges will exclude certain It is not possible now to give more than are limitations as torelevancy and failure matters like the statutory duty of CHR to a thumbnail sketch of what the Evidence to lay an adequate foundation. Ideally, keep all records and infonnation con Committee has proposed. As soonas the the statement to be introduced will be the fidential. However, attorney-client actual proposal is released the important declarant’s out-of-court statement in privilege is kept largely intact. The hus provisions will be examined in this which she admits committing the crime band-wife privilege is changed to column. charged and admits that your client had eliminate the "confidential communica nothing to do with it. hi Chambers, the tion"andretainonly thespouse’sexemp STATEMENTS AGAINST PENAL declarant gave a written statement admit tion from requirement to testify. In place INTEREST ting that he had shot a police officer. of the numerous statutory provisions The good news ibóut the penal interest Under the facts of that case, where there covering physicians, counselors and was only one shooter and the only issue others the Committee has proposed a exception to the hearsay rule is that this rule orsomething similar to it isprobably was the shooter’s identity, the excul single counselor-client privilege which required by the U;S. Supreme Courtcase patory nature of the statement was ob would cover all these different statutes. vious. [410 U. S. at 287-288]. However, There are important limitations on this ofChambersv.Mississippi,410U.S . 284 1973. This was the reasoning behind the long standing federal constitutional consolidated privilege. If a party injects rule is that states may still exclude mental, emotional or physical condition the KentuckySupreme Court’s adoption of the rule in Crawley v. Commonwealth, evidence by reason of state evidentiazy into the case and thereby makes tes rules as long as those rules "serve the would otherwise be Ky., 568 S.W.2d 927 1978. The other timony that good news is that the questionhas its own interest of fairness and reliability." privileged necessary and relevant the key number, Criminal Law 41715 and [Crane,.476 U.S. at 690]. Thus, if the trial court is authorized to admit such statement you want to introduce is less evidence. second and anytime you need to find cases on the testimony into A issue you cansimply turn tothis heading. obviously exculpatory e.g. "Yeah, more dangerous exception authorizes the defendant was there butI actuallydidthe trial judge to introduce otherwise The bad news is that the Supreme Court of Kentucky apparently regrets having robbery" where there is an allegation of privileged testimony if the need for it in complicity, the state court may some outweighs claim of adopted the rule. In Dodsonv. Common a particular case the wealth, Ky., 753 S.W.2d 548 1988 the times legitimatelyexclude the statement. confidentiality. Supreme Court noted in an opinion that Where the declarant’s penal interest is notat stake,courts may exclude thestate As to impeachment, the rules prohibit adoption of Federal Rule 804b3 was not necessary to the decision in Crawley ment. [e.g. United States v.Albert, 773 bolstering a witness before attack. The F.2d386, 390 lstCir. 1985, declarant’s attack on the witness would be allowed but that since no one in that case was questioning the applicationof the rule, it statement at sentencing; US. v. Evans, by means of opinion evidence and cross 635 F.2d 1124 4th Cir., 1980, exatnintion concerning specific bad would decide the case on the basis of the rule. [753 S.W.2d at 549]. Review of declarant’s admission of guilt to crime acts refIcting on truthfulness. The charged actually is a defense to a more

August 1989/the Advocate 23 serious charge]. Obviously, statements S.W.2d 810, 815 1987]. In Dodson v. the in-court wi4ness has notbeen put up exculpatingthe defendant made by a co Commonwealth, Ky., 753 S.W.2d 548 to giving false testimony by the defen defendant already convicted and serving 1988 the Supreme Court considered dant These 5 points represent what both time on the charge are viewedwith great that portion of 804b3 that provided "lenient" and "strict" courts have re suspicion. [Carwile v. Commonwealth, for inculpatory statements, that is, out- quired in the past. Until the Kentucky Ky.App., 694 S.W.2d 469 1985]. Al of-court statements introduced to incul and United States Supreme Courts have though this type of statement is generally pate the defendant. In this case the court an opportunity to rule on this question of dispatched by a rulingof untrustworthi held that, like an exculpatory statement, corroboration a lawyer must be prepared ness, some courts have ruled that such a the inculpatory statement is not admis to argue both lines of cases. statement is not against penal interest. sible unless there are corroborating cir On the other hand, a statement that does cumstances which clearly indicate its Because the Kentucky Supreme Court notcompletely exonerate a defendantbuL trustworthiness. [753 S.W.2d at 549]. has voiced some doubt about using the which might reduce the degree of the federal rule, in each case thesafestcourse offense or punishment, should be clas The published cases in Kentucky so far is to combine the rule argument with an sified as an exculpatory statement do notprovide much guidance on how to argument under Chambers v. Mississp against penal interest. [State v.Gold, 431 show the trustworthiness of the state pi. That argument is set out in Crawley A.2d 501, 508 Conn., 1980]. If your ment, the second critical foundation re v. Commonwealth, Ky.,568 S.W.2d 927 proffered statement is arguably excul quirement. However, there are a number 1978. In Crawley the Court set out a 4 patory, you should argue tothe court that of good cases decided in the federal cir factor Chambers test that examines 1 the jury should make the ultimate deter cuit courts and in state courts, among when the statement was made and the mination of its effect. them being Commonwealth v.Drew, 489 person to whom it was made, 2 the N.E.2d 1233 Mass., 1986, and United corroborating evidence, 3 the extent to There are two criticalfoundationrequire States v. Atkins 558 F.2d 133 3rd Cir. which the statement is really against ments in Rule 804. The first is the re 1977. A more restrictive line of cases penal interest and 4 the declarant’s quirement of unavailability. In United arose from the cases of United States v. availability as a witness. [568 S.W.2d at States v. Inadi, 475 U.S. 3871986 the Alvarez, 584 F.2d 694,7015th 931]. Although this analysis does not U.S. Supreme Court noted that the un Cir.,1978 and United States v. Bagley, differ to any great extent from Rule 804 available witness requirement is im 537 F.2d 162 5th Cir. 1976. Jurisdic analysis [see United States v. Stratton, posedbecauseof a preference forobtain tions following this second line of cases 779 F.2d 820,8282nd. Cir. 1985], you ing the stronger and better version of the allow thejudgeto exclude evidence if he thotld take pains to make clear to the testimony,in-court, viva voce testimony, is not convinced that the statement was Court that you are presenting both a when at all possible. In Crawley the Ken made or that the in-court witness is Chambers argument and a Rule tucky Supreme Court adopted Rule credible. This differs markedly from the 804b3 argument. 804a along with 804b3. [568 first rule which merely requires the trial S.W.2d at 931]. Of the unavailability judge to make an initial determination DAVID NIEHAUS provisions, the ones most likely to be that it is reasonably likely that the state Office of the Jefferson District encountered in criminal practice are the ment was made. The purpose of the Public Defender co-defendanttaking the 5thAmendment, trustworthiness requirement is to guard 200 Civic Plaza the co-defendant refusing to talk despite against fabrication of evidence. The Louisville, KY 400202 orders of the court, and death or disap original justification for the exception, 502 625-3800 pearance of witnesses. The Supreme that a reasonableperson would notfalse Court of Kentucky has only dealt with ly admit the commission of a crime,was the witness who cannot be located. In not considered to be sufficient in Morgan v. Commonwealth, Ky., 730 criminal cases. In some states verylittle RIGHTS CARDS AVAILABLE S.W.2d 935,939 1987 the court noted corroboration is required. [State v. that if a party wishes to introduce tes Anderson,416N.W.2d 276Wis., 1987]. thnony from a witness who is unavail However, most jurisdictions have fol RIGHTS CARD able because he cannot be located, the lowed the federal rule language which party at a minimum has to issue a sub requires proof of circumstances clearly My lawyer has told me not to talk to anyone poena to compel attendance of the wit indicating the trustworthiness of the about my case,not to anSWerqUestiofls, and not to reply to accusations. Call my lawyer if you ness.The otherprovisions of Rule 804a statement. The trouble with the language Want 10 ask me questions, search toe or my must be interpreted in light of the policy is that the courts cannot agree on "exactly property, do any teals, do any lineups. or any statement set out in Inadi. There usually what needs to be corroborated." [United other identification procedures. 1 do not agree is no problem in showing unavailability States v. Salvador, 820 F.2d 558, 561 to any of these things without my lawyer present and I do not want to waive any of my when the declarant asserts the 5th 2nd. Cir. 1987]. A careful reading of constitutional rights. Amendment or simply refuses to talk, Atkins, Drew, Alvarez and Bagley how even when ordered to or held in con ever leads to the conclusion that the tempt. The only important thing to proponent of an against penal interest remember is that the Rule requires a statement had better be able to show 1 $5.50 Covers Postage and Handling specific ruling by the trial judge. You that a reasonableperson wouldhavereal for 100 cards. must produce the declaranI and askques ized that his statementmightgethim into Send Your Check or Money Order tions that show thefutility of tryingtoput trouble with the law, 2 that the payable to the Kentucky Stae him on the witness stand. declaranthadnoreasontotell alie to help the defendant, 3 that there is some Treasurer to: The court in Crawley found it necessary evidence in the case that will support a Rights Cards to adopt Rule 804b3 to add to the beliefthat the declarantmight have com DPA . already existing common law exception mitted the crime, 4 that the witness 1264 LouisvilleRoad to the hearsay rule governing pecuniary testifying about the statementcould have Frankfort, Kentucky 40601 interests. [Fisher v.Duckworth,Ky., 738 heard it from the declarant, and 5 that

August 1989/the Advocate 24 COMPUTER INTEGRATEDCOURTROOMS Courtroom ofthe Future is Present in Danville

Stephen M. Shewinaker

What is the courtroom of the future in most administrative duties freeing the tempts to fulfill her in-court duties, type Kentucky? Court Reporter? Video? other judges to concentrate on theirjudi transcripts, and have some semblance of Computer Integrated Courtroom? cial functions. private life. Traditionally, in Kentucky the circuit court proceedings were recorded by a Other differences affecting the work of In response to this situation, the Ad "Courtreporter." Thisindividual ranged the circuit court includes various ininistrative Office of the Courts has in skill level from the judge’s former socioeconomic differences. Some rural adopted the solution of video tape re secretary to a stenographically trained counties’ caseloads may include serious corders for circuit courtrooms. The start court reporter. crimes but few complicated medical up cost per courtroom is approximately malpractice cases. The urban areas and $50,000. The court reporter position is Circuit courts in Kentucky range from a industrially developed areas’ caseloads eliminated saving that salary. Usually a multi-judgesingle county circuitsuch as would reflect different demands on the judge with video taped proceedings is Louisville, with 16 sittingjudges, toone- court and courtroom. then provided a law clerk. The salaries judgefour-county circuits Adair, Casey, and benefits of the law clerk are similar Cumberland and Monroe Counties of the These differences, and many others, to that of a court reporter. When court is 29th Judicial Circuit. The case load per feet the needs of circuit courts. Judges opened in the video courtroom thejudge judge varies from as few as 500 cases to have varying degreesofsatisfaction with and/or other court personnel places the as many as 1200 cases. There also exists the basic court reporter system. It is dif- video cassette tape into the VCR, turns it a diversity in time allocation for circuit ficult to recruit stenographically tr5ifled on, and court proceedings begin. Voice judges. The circuitjudgein amulti-coun and certified court reporters to the State activated microphones are installed in ty circuit has significantly greater road of Kentucky. Our entry level salaries are the courtroomtorecord the proceedings. time than judges in a single county cir $11,055. Court reporters in nearby states The camera shifts to focus ontheposition cuit. For example, the 29th Circuit earn approximately $30,000 more per designated for each microphone as the stretches 120 miles from one end to the year. Consequently, most courts ur Ken-1 sounds in that microphone indicate use. other. Also inherently different are the lucky have used court reporters who A microphone is placed on the judge’s administrative responsibilities to coor shorthand and cassette tapes as backup. bench, the witness chair and each of the dinate multiple circuit clerks scheduling These reporters have had little, if an,, parties’ tables. If the speaker moves motion days and domestic days and trial training. When transcripts must be about the courtroom the voice may be datesforall counties in the circuit Inthe prepared, a significant time lag is often heard to fade and/or possibly disappear encountered as the court reporter at- . . .

August 1989/the Advocate 25 triggered. If one is speaking and at a different station a person shifts papers or makes any significant noise, the camera may shift and focus on an inappropriate location. These are shortcomings which as technology increases may be remedied. As the proceedings are recorded, the clerkkeeps a record offramenumbers for the beginning of direct and cross-ex amination of each witness. This allows anyonereviewing that tape to have some point of reference to begin their search. Often these frame references are close but not totally accurate. Videotape has other weaknesses forpur poses of review and appeal. In discus sions with trial attorneys who have ex perienced appeals from video, these many faults, which in the appellate Phoenix, Arizona as well as other court limitations become more obvious. At processes cannot be conected. As an systems across the United States. In the torneys with loud voices in the Famularo, have example, it is not our function to courtroom, the system is comprised of courtroom, such as John view the witnesses and their separate monitors and keyboards for discovered that some records lose his jf demeanor as thatis the purposeofthe plaintiff, defendant, and judge. Addi voice and become unintelligible he trial judge while ours is to review a tionally there is a monitor for the court moves about the courtroom. This limita "cold" record. Youmay rest assured reporter and witness. Thiscircuit has for tion raises serious questions as to the that contrary to what two of our col its court reporter, Sandy Cornwell effectiveness of an appeal if the record leagues may be saying in their travels Wilder. She has earned a Certificate of does not accurately reflect the entire to many states that the Kentucky Merit, the highest level of proficiency a proceedings. The United States Court of Dorsey Judiciary is not solidly behind video court reporter can attain. Her Appeals for the Sixth Circuit in taping. Again, I must emphasize that stenographic machine is attached direct v. Parke, 872 F.2d 1636th Cir. 1989 we are slowly learning that the man ly to the computer bank which is in a experienced an appeal from a video tape hours involved have not been con small room off of the courtroom. The recorded trial. The opinion states: sidered when the advocates of the entire systemis portable and will beused The record is replete with diJIcultie.s, system pointed how much cheaperit in both courthouses. may be. not the leastofwhich being its presen The system relies on the court reporter’s - tation as a videotape. First, the marginally audible at InfactFrss*lin County, Ohio tried video dictionary immediately translating the videotape is tape records in 1973 through 1975. In information typed through his/her trialjudge times,particularly when the 1975 the Court ofAppeals requested the stenographic machine. As the court and the attorneys whispered their whenever two video appeals be eliminated according to reporter’s dictionary expands, the sidebar coiferences and Judge John W. McCormac transcript should be 90 to 95% accurate. or more participants spoke at once. There may be certain "nontranslates" Second, we are not equipped to because of the additional costs to which appearon the screen. Thesequite produce efficiently the written attorneys and the fact the record often arenew proper names or technical transcription on which careful review could better be reviewed on appeal terms that may come up for the first time must be founded. Finally, the parties by the traditional written transcript. inthat specific trial. did not have our transcription-in deed, they seemed not to have any Attorneys have also discovered that As the witness on the stand testifies the transcription-rendering oral argu preparing an appeal takes approximately realtime translationpermits the court and ment about the events of the trial an four to five times as long from the video lawyers to have a video display of the exerciseinflaility. Thoughwe note that tape as it does from a typed transcript. testimony. As the court reporterrecords Kentucky’s experiment in videotaping Searching a video tape takes more time the testimony, it appears on the screen trials is receiving praise in the press. then scanning a typed record. Some law within four to five seconds. This process "Court Reporters on Way Out?: offices have discovered it saves their virtually eliminates all readbacks. So Courts Experiment with Audio-Video clients money in the long run to have a long as the court reporterhears the ques Machines," ABA Journal 28 Feb. typed transcript made of the video taped tion then all parties and the court have it 1989, we wish to call attention to the record. Those offices thenwork from the whether or notfor some reason any ofus acute difficulties this innovation typed transcript in preparation for ap missedit. If the witness has a low voice presents to courts attempting tofidfill. peal. that does not carry well but the court function ofjudicial review. their In the 50thJudicial Circuit, comprisedof reporter and jury can hear it, then the Counties relatively lawyers andjudges and parties cancheck Their experience with and opinion of Boyle and Mercer a it on the screen. video tape trials is shared by a number of new approach is being tested. The Ken the Kentucky Appeals judges according tucky Shorthand Reporters Association Those of you who are in the courtroom toJudge Charles B. Lester. He states: has provided funding for at least one- often can appreciate a situation thejudge year and probably a three year test of a often faces during a trial. The judge is I am still of the view that video is computer integrated courtroom. This making a note, reading a memorandum absolutely useless on appeal and has system has beenused in federal courts in

August 1 989/ the Advocate 26 of law or cases cited to the court, and court on the occasionswhen you need to opposition to the testimony given from their attention is diverted from the tes refer backto it to make a ruling is going the stand that day. timony. The fact of the matter may be to enhance the quality of the ruling. that we miss a question just posed and This system also allows pre-trial hear only "Objection!" Since the judge This is also a wonderful tool for bench programming by the court or parties. may not have heard the question, let conferences. A criminal defendant has a Certain key words may be highlighted alone have any clear basis upon which to right to be present at all portions of a and documented by the computer for make a ruling, the judge previously may criminal trial unless there are purely mat quick recall and reference by the user. have asked you to restate the question or ters of law that are going to be discussed. Alsocombinations ofwords may besear have the court reporterread it back. Now For example, a juror during voir dire ched and identified. During the realtime thejudgecan turn to themonitor, read the wants toapproach the benchto discussa translation a user may make notes in the question andmakearuiing. Whileon any matter. When the juror comes forward transcriptfor lateruse or reference orfor given objection that might not be sig the attorneys can join the court for the cross-examination purposes. This frees nificant, it is as the trial unfolds day after bench conference and the defendant, if judges and lawyers from making notes day or weeks after weeksand the court is agreeable to the attorneys, may remain at all during the trial as notes can be made called upon to make an infinite number the table and review the side conference contemporaneously on the realtime ofrulings. The ability to have the precise from the screen. In addition, in all cases transcript on the computer. The process formulation of the question before the at bench conferences second chairs takes only a few seconds. and/or paralegais may review thosecon versations from the table as well. The individual user’s notes and corn- merits are available onlyto that user and This realtime translation is also valuable not to the opposition or the court. Your in the eventof a hearing impaired defen use of the computer during trial whether dant, witness or juror. We are proud to watching realtime translation, making have the Kentucky School for the Deaf notes, or searching the record, is not inDanville. Consequently we have a sig known by the others in the courtroom. nificant deaf population. In the past we You may also obtain a transcriptfrom the have relied upon interpreters to translate court reporter with your notes reflected a forthose individuals involved in the sys therein. tem. Now those individuals will be able a to review the typed testimony as it un Anyone who so desires, may have an folds. An interpreter will be provided to immediate transcript of the court proceedings or any portion thereof. You t. clarify any concerns or problems, but a great deal of time will be saved and a As amanerof clearer understanding had by all in Computer Tracks Trials - riptsto volved. under a . Plain Circuit Judge Stephen Shewmaker’s ifargues that dep arn-it Attorneys find the system helpful as courtroom is the first in Kentucky to çn transcript iii -- ofequal well. You may ask a question and after use computers. The system was protection and we gr e - failing to the response be unsure of the answer. - bought and donated by the KY Shor furnish a transcript at all would be a You may turn to the monitor to verifythe thand ReportersAssociation as a test denial of equalprotedion. answer. If it is helpful you may ask it to project to "show how computers be repeated, but ifharmful, ignore it and have taken our courts into the 21st Beca,se of thenovelty oftheissue, the goon. - Court hafound no authority address- century,"according to the President, * ingthequ nwhèthr great and un In addition to realtime, this system has Laura Kogut. mediate irreparábleinjUrywil resultf various other functions. All depositions The organization is encouraging counsel Is forced to prepare a brief takenin the actionmaybe integratedinto otherKentucky courts to try the com - frOm the videotape transcript. The the computer bank on floppy disk. The puter system before replacing court Court’s eperiénce with videotape attorneys and court may access them for reporters with video. Advocates of transcr a limited th afrw habeas review, trial preparation, and/or use the videotape systems used in 22 - inwhichtheCourt had during trial. The computer is capable of Kentucky courts, say they are less to r - -- Althoughthe accessing legal research capabilities expensive for the courts, but Ms. Co t - unsatIsfac such as Lexis and/or Westlaw. Kogut said video creates an unfair tory. bur unduly time judicial systembecause ofthe cost of conswning, it is faSt C ifunc- - The computer has an infinite number of ways to search the record. The record appeals. Attorneys are paid by the tiOn to chalithge 4 the hourto watch videotapes oftrials and Sup - Court of K - ky - adopt- includes all depositions integrated into the computer prior to trial as well as all the fact that some courts will not - r testimony up to the point in trial one accept an appeal without a written lagni wishes tosearch the record. These func record. tions allow attorneys to do their cross-ex Kentucky is one of 7 states with the ill amination from earlier depositions in the system. It is already in use in system by recalling them to their screen. Chicago, Detroit, Phoenix, Dallas, This would replace the codedmarking of San Francisco and Vancouver, typed transcribed depositions. Par Washington. ticularly effective in the impeachment processis to have the witness referto his -Lexington Herxid.Leader screen and make that witness read back the question and answer that is in direct

August 1989/ the Advocate 27 may obtain that transcript either in its is harmed or disabled. The court you so desire. "dirty" form, with the nontranslates, or a reporter’s stenographic machine will What is thecourtroom of "clean" transcript which would require work even without electricity, videos the future? Ido the court reportertocorrect the nontrans won’t. In the event of apowerfailure the not pretend to have the answer. Due to lates. This could be obtained at lunch,or court may continue even though the the diverse demands and needs of the attheendoftheday.Thetranscriptznay computer functions may notbe available circuit court systems in Kentucky what be obtained in a printed format or on to the parties in court. may work in Fulton County may not be floppy disk for use on the parties’ own appropriate for PikeCounty. What may computer. Parties may purchase all or a portion of work in Jefferson County may not work the record. Certain expertsare seenquite in Clinton County. As the court of This function is especially useful in a often by both plaintiff and defendant. A original jurisdiction and a court of lengthy trial where experts have been copy ofjust their testimony may be ac record, it is our inherentresponsibility to retained by both parties. As the defezi quired in floppy disk or transcribed form provide an accurate, usable, and func dant, you may obtain the actual tes and used inother litigation for cross-ex tional record for the parties and the attor timony of the plaintiff’s experttoprovide amination or preparation. neys involved in the court system. That for review by your expertprior to hisflier record historically has beenforthe Court testimony. This eliminates the reliance Of interest to those practicing attorneys ofAppeals. But intoday’s morecomplex on the attorney’s notes taken during trial without previous computer experience litigation, theuse of therecordinpre-trial and provides an actualand accuratefoun is: "What training is necessary to work motions, trial motions and post-trial mo dationfor expert testimony on the issues. this system?" I can only speak from my tions has increased the demands on the experience. Ihadno previous knowledge record. Where there are multiple parties in the of computers except a limited under case, questions and answers neednot be standingof their capabilities. In less than I encourage all of you to take an oppor duplicated. You as the attorney may one hour I understood the functions of tunityto observe this system at work. review the testimony and previous cross- the computer and could operate it. At all You, the consumer, should evaluate, examination and determine that ques times at the bottom of the computer compare and determineits.value and ap tións have already been asked and screen is a cursorline that provides rela propriateness for use in your system of answered and you neednot repeat them. tively clear instructions. One need only justice. It is obvious the demands on the This systems also allows for quick re to refer that cursor, and push the ap court systemitself are increasing and the search and retrieval of information to be propriate key and "enter" button key to complexity of the practice of law puts used as the basis for motions made access the function desired. Certainly equally increasing demands upon attor during trial and cross-examination and typing skills are of some advantage asthe neys. We needtowork togetherto insure impeachment. keyboard is set up as typewriter with our system of justice continues tobe the function keys. Typing skills are not best in the world by responding to the There are other significant uses of this necessary for its use. The notes used in needs and demands of all involved. system. The storage of transcribed tes the transcript and/or words to be sear timony may be on floppy disk, hard chedand identified may be typedrapidly STEPHEN M.SBEWMAKER . drive, or on a tape that stores 14,000 even by the two-finger approach. My Circuit Judge pages on an individual tape. This saves office will cooperate in every way to 50thJudicial Circuit space. The systemprovides a backup if provide time for training. Preprogram Boyle /Mercer Counties any one mode of storageforsome reason ming the computeris available toyou if

CriniePays by EdwardC.

You misled me. Yousaid Well, that’s all they did No ii isn’t. They increased Oh. So they decided they that Corrections and the do about the prison tha length of prison liked the prison crisis & legislature only decided crisis. sentences and failed to wanted o increase it. I see. to study the prison crisis. fund alternriye, non-prison sn:ences.

August 1989/the Advocate 28 ACCELERATING PRO BONO EFFORTS

The American legal profession, despite ing a study by the Association’s Standing tations on state-of-the-art techniques in popular conceptions tothe contrary, has Committee on Legal Aid and Indigent private bar involvement servicedelivery. and continues to respond to the need for Defendants and the Special Committee Regular features of the Conference in- improving the system for deliveringcivil on Public InterestPractice. The Project, chide a special training fornewpro bono legal services to the poor. As reviewed funded by the ABA and the Legal Ser coordinators, workshops for bar leaders by American Bar Association President vices Corporation, was chargedwiththe and a program assistance room contain Stanley Chauvin in an article appearing task of assisting state and local bar as ing materials from pro bono organiza in the June, 1989 edition of The Advo sociations establish fonnaipro bono pro tions throughout the country and the cate, the organized bar underthe leader grams. In 1981, the Project was con latestinformation from stale and national ship of the ABA has consistently and tinued with funding from the Pew support centers and national advocacy forcefully urged the U.S. Congress to Memorial Trust This effort evolved into groups. PBIP also works with state adequately fund civil legal services the Private Bar Involvement Project groups to design and assist in pro bono programs. Understanding that state PBIP, nowsponsored bythe ABA Con coordinator training conferences and ments of support are not enough, in sortium on Legal Services and the other presentations. dividual lawyers and law firms have in Public. creasingly accepted the obligation of The most unique and significant service providing pro bono services to help close ThePBIP provides assistancetostate and offered by PBIP is program activation the gap between the number of legal local bar associations, pro bono and technical assistance. Program con problems of the poor and the constraints programs and legal services programs in sultants providephone consultations and under which federally funded legal ser 4 ways: on-sitevisits to bar associations andlegal vices programs operate, most notably a services programs to discuss issues in 1 Assistance and consultation. PBIP’s cluding how to: lack of sufficient resources. program consultants assist with the ac tivation of new pro bono programs and -determine appropriate delivery struc PRO BONO ACTiVATION: THE help develop solutions for problems en- tures and methods, ROLE OFTHE ABA countered in existing programs. PBIP -develop and implement screening, in ministers a mini-grant program take and quality control mechanisms, The ABA has supplemented its support also for legal services by fostering the de designed to assist new pro bono efforts -promote a program and develop public and improve existingprograms. relations strategies, velopment of local pro bono programs. -evaluate the effectiveness of existing In 1971, the ABA Section of Individual 2 Information clearinghouse. PBIP program operations, and Rights and Responsibilities, under a maintains a national clearinghouse of -make long-range plans for a program. grant from theFord Foundation, initiated materials on topics of importance in the its Project to AssistInterested LawFinns field ofprivate barinvolvement. Prior to an on-site assistancevisit, a pro in Pro Bono Publico Programs. The gram consultant will gather information Project collected, compiled and dis 3 Publications and resources. PBIP about the program and the environment tributed information to the bar about the distributes the PBJ Bulletin Board, a within whichitoperates. Ifnecessary, the efforts of law firms engaged in probono monthly newsletter, and the PB! Ex programconsultant will be accompanied work. The Project also consulted with change, a quarterly news magazine, to on the visit by experienced program firms interested in developing pro bono over4,300 individuals. The Project also managers,consultants or bar association programs. After two years of grant fund distributes Info Packs containing mat leaders from throughout the country who ing the Project was terminated and erials on topics ofinterest to thepro bono have expertise in private bar involve replaced by the Special Committee on community.. Each year PBIP complies ment activities. On-site visits range from Pro Bono Publico Activities which was theDirectory ofPrivate Barlnvolvement one to three days, depending on the is- chargedwith assisting not only law firm Programs containing information on sues addressed. Visits are followed by a pro bono development, but also stateand over 625 private bar involvement pro written report which includes observa local bar associations and corporatelaw grams nationwide. tions and recommendations forprogram departments. improvement PBIP consultants visit 25 4 Coferences. PBIP and the ABA siteseach year. In 1975, the ABA House of Delegates, Standing Committee on Lawyers’Public by resolution, recognized the lawyer’s Service Responsibility sponsor the an obligation to engage in public services nual ABA Pro Bono Conference. The NATIONAL OVERVIEW: activities and called upon the organized Conference, first held in 1983, draws CURRENT ISSUES barto assist lawyers in the fulfillment of more than 400 people annually from Through regular contact with pro bono the obligation. In 1979, the ABA created throughout the country to discuss issues programs, PBIP staff becomes familiar the Pro Bono Activation Project follow- of common concernand to attendpresen with trends and new developments in the

August 1989/the Advocate 29 pro bono world. For a variety of reasons, local rules requiring admitted attorneys accept a civil case on behalf of an in some of which are significant develop to accept assignments in civilmatters. digent prisoner. The Supreme Court did ments themselves, PBIP has witnessed not decide if a court has the inherent new growth in the number of lawyers The most comprehensive statewideman power to mandatoryproposals, but may participating in pro bono organizations. datory proposals have beenconsidered in result in further litigation defining the North Dakota, Maryland, Arizona, authority of federal courts to mandate After the Legal Services Corporation is Hawaii and New York. After proposing representation. sued its 1981 requirement that all local a 60 hour per year mandatory pro bono legal services programs involve private requirement, North Dakota has recently Faced with the prospect of mandatory attorneys in the delivery of civil legal adopted an "opt-out" pro bono program pro bono, the organized bar’s response, services to thepoor, there was a dramatic for its attorneys. The statebar estimates as in North Dakota and Maryland, has. increase in the number of pro bono that 60% of its attorneys will participate. been to increase efforts directed at programs and participating lawyers. A committee of the highest court in recruiting lawyers for voluntary pro After several years of continued expan Marylandrecommended that all lawyers bono programs. It may be anticipated sion, the rate of program growth slowed be obligated to accept at least one civil that as the debate on the need for man as program geographic coverage in- case annually on behalf of an indigent datory pro bono widens, other bar as creased. Although less than 12% of the person. The state bar, however, sug sociations will undertake efforts to in current existing private barinvolvement gested a plan which was adopted that crease voluntary participation. For ex programs were created in the past 4 encourages voluntary participation and ample, the KBA has adopted the ABA years, lawyer participation has doubled reporting of a lawyer’s pro bono work. policy which creates an aspirational goal during the same period. PBIP estimates Following a study by a bar committee, of 50 hours per year ofpro bono service that in 1989 there aremore than 120,000 the Board of Governors of the Arizona for each attorney. The Louisville Bar lawyers participating in organized pro State Bar recently approved the concept Association has aggressively cam bono programs. There are several factors of mandatory reporting of pro bono ac paigned to convince law firmsin that city which contribute to the increase in tivities and engaging in a debate on the to adopt the 50 hour goal. lawyerparticipation. necessity of mandatory service. State Pro Bono Support Projects Legal Needs Studies On July 11, 1989, a commission ap pointed by New York’s Chief Judge Sol Seventeen state bar associations operate Statewide and regional legal need sur Wachtlerissued a report recommending pro bono "support" projects with staff. veys have consistently concluded that that lawyers be required to perform at The frojectsreceive funding through the despite the best efforts of federally least 20 hours ofprobono workperyear. statebar, often supplemented by Interest funded civil legal services programs, The recommendations would allow on Lawyer’s Trust Accounts IOLTA only 20% of the poor in needof a lawyer lawyers in firms of 10 or less to make a funds and subgrants from federally to help resolve a legal problem are financial contribution to a legal services funded legal services programs. State receiving assistance. For example, organization of their selection in lieu of project activitiesinclude: activating new statewide studies have recently been representation. Public hearings will be programs in areas of the state where they completed in Maryland, Massachusetts, held prior to a final decision on the do not exist; conducting recognition New York and Illinois. Maine has an promulgation of a court rule to imple events and activities for volunteers; nounced the initiation of a study.These ment the recomrnendations Judge coordinating training programs for local studies have received national attention, Waclitler, however, has indicated his pro bono program coordinators; and heightening public and professional supportforthe conceptofmandatoiypro serving asliaison to state barcommittees awareness of the magnitude of the unmet bono. Both opponents and proponents of on pro bono and legal services delivery civil legal needs of the poor. Citing these mandatory pro bono througho’ut the issues. studies, state and local bars have inten country will monitor the debate in New sified efforts designed to encourage par York. The number of state bars that have ticipation in pro bono representation. staffed pro bono support projects is Both the Kentucky and Louisville Bar Several local voluntary bar associations steadily increasing. Recognizing the im Associations have recognized the unmet have adopted a mandatorypro bono re portance of the projects to both effective need in theirrecent efforts to increasepro quirement as a condition ofmembership. recruiting and maintaining quality pro ono efforts. Individual lawyers, under Members of the Orange County Bar As grams, PB]P coordinates an annualmeet standing their crucial role in the legal sociation in Orlando, Florida, either ac ingof state staff. system, have increasingly responded to cept 2family law cases peryear ordonate the unmetlegal needby joiningpro bono $250 to the local legal services program. Law Student Pro Bono programs and engaging in other public Tallahassee, Floridabarmembers accept While clinical legal experiences have services activities. cases in the areas of family law, child long been available in law schools support and landlord/tenant or act as as fandatory Pro Bono Proposals litems. primarily an educational experience, pro guardianad bono programs forstudents are introduc Under ABA policy and the ABA Model A number of courts have adopted ing students to the ethical obligation to Rules of Professional Conduct, the pro programs requiring pro bono repre engage in public service activities. Tul ‘ono obligation is aspirational innature. sentation by those admitted before the ane University School of Law has com Although 10 states have debated some court. The United States Supreme Court pleted the first year of its pro bono pro form of rule or statute that would make recently dealt with a challenge to a court gram. Students, as a requirement for pro bono service mandatory, none has mandatory appointment programinMal graduation, mustcomplete a minimum of adopted a mandatory requirement. lard v. District Court for the Southern 20 hours of pro bono work during either Several voluntary county bar associa Districroflowa,..U.S._May 1,1989. the second or third year. Students are tions requirepro bono service as an con The Court held that the federal district placed with local pro bono lawyers dition of bar membership. A number of court judge could notrely on a specific through the bar sponsored program. federal district courts have promulgated federal statute to compel a lawyer to Florida State University School of Law

August 1 989/ theAdvocate 30 -_.

will begin a similar program in Fall, is often more valuable than training a 1990. The University of Pennsylvania seminars. Thepressure onyoung lawyers advice on wills and trusts to AIDS School of Law recently announced a facing increases in billable hour require patients. mandatory program for students which ments beyond the Z500 per year range is will require 35 hours ofpro bono service taking its toll in some firms. Lawyers THE KENTUCKYEXPERIENCE during each of the second and thirdyears. doing pro bono work often experience Other law schools are considering stu the psychological satisfaction of com The history of the development of or dentpro bono programs. pleting a caseand seeing tangible results ganized pro bono in Kentucky mirrors for a client, something thatmay nothap the national experience. Although a pro It is widely accepted that interest inpro pen for an associate working on seg bono panel was organized in Covington bono and legal services work by law ments of a casefora corporate client. A in 1978, early efforts to involve the graduates subsided after mid-1970’s. law firm will certainly benefit from the private bar in the delivery of legal ser The escalation of salaries for top law good will created by its public service vices to the poor coincided with the graduates in large law finns is both a work. Legal Services Corporation mandate in cause and effect ofyoung lawyersdirect 1981. As in the rest of the country, or ing their careers away from public ser Recognizing that a firmcan benefit from ganized pro bono started in urban areas vice. Law firm recruiters, however, are pro bono work by its lawyers, formaipro such as Louisville and Lexington. increasingly encountering questions bono programs in finns are becoming about the opportunityfor pro bono work more common. Firms are allowing pro In 1984, theFayette County Bar Associa during employment interviews. Peter bono hours to be credited toward billable tion and Central Kentucky Legal Ser Hsiao,a lawyer with a large Los Angeles hour requirements. In NewYork, Boston vices jointly sponsored the creation of a law firm, has fostered the movement of and Washington, D.C., bar associations pro bono program in Lexington. The law graduates to "Just Ask" about law have established special projects to project was partially supported by a grant firm pro bono involvement during match largelawfirmresources withlegal from the ABA and a visit form William employment interviews. services and pro bono programs. Some W. Falsgraf, the 1985-86 ABA Presi law firmshave developed "releasetime" dent, who heralded the project as a Law Firm Involvement programs where notonly lawyers from a prototype. The program currently has 2 firm, butparalegais and secretaries will staff members and over 220 volunteer Although no survey has yet been con spend from 3 to 6 months working at lawyers. ductedmeasuring the levels ofpro bono neighborhood legal services offices. As work of lawyers, the PBIP staff has es widely reported, Skadden, Arps, Slate, In 1986, the Pro Bono Committee of the tablished that as many as 2/3 of thepro Meaghez and Flom, a large New KBA issued a reportoffering 12 recom cases that are completed nationally York mendations. Although the Committee bono city based firm, has established a $10 each year are done by sole practitioners million fellowship program to fund law concluded that there was a needfor apro and members of small firms. Over the graduates at 32 public interest law finns bono program on a statewide level, the past several years there has beena grow overthe recommendations acknowledgedthe im that large law firmspos and legal servicesprograms next portance of working with existing ing recognition 5 years. sess great resources which must be cul programs and local bar associations. tivated to assist in reducing the umset Special Projects - - Since that time, new pro bono efforts needfor legal services by indigenL havebeengenerated withthe strong sup Pro bono program coordinators con port or sponsorship of county bar as The ABA, primarily as a project for its stantly struggle to developnew methods sociations. For example, Lawyers Care Standing Committee onLawyers’Public of recruiting and motivating volunteer was established in Bowling Green as a Service Responsibility, has undertaken lawyers. One of the best motivators is joint project for the Warren County Bar efforts to stimulate law firm pro bono providing lawyers with interesting and Association and the Cumberland Trace activity. Co-sponsored with the 1988-89 rewarding work. Creating special Legal Services. In Western Kentucky a ABA President RobertRaven,the Stand projects organized to address specific is new pro bonoproject is being initiated as ing Committee hosted a one day con sues or populations, nicknamed "bouti ajoint ventureof the McCrackenCounty ference on law firmpro bono on May 1, que" pro bono projects, have attracted Bar Association and Western Kentucky 1989. Managing partners and pro bono many lawyers to organized pro bono. Legal Services. Both of these groups coordinators from 50 of the largest law Special projects may be either inde have received activation assistancefrom firms in the country attended. Presenta pendentprograms orpartof ageneralpro the Private Bar Involvement Project. tions on organizing notonly the lawyers bono organization. Projects have been of a firm, but other firm resources were created to service segments of the An additional impetus to the recent made. Small group sessions allowed for population, such as senior citizens, the development of organized pro bono in peer-to-peer discussions focusing on disabled and AIDS patients. Other Kentucky has come from the availability such problems as developing a firmpro projects have been organized by legal ofIOLTA funding. Initial grant applica bono policy, cultivating partner support subject matter, such as family law or tions for JOLlA funding from civillegal. for a firm pro bono program, handling community economic development. services programstargeted the activation conflict of interest problems and gaining and expansion ofprobono. Grant awards support of large institutional clients fora Special projects not only appeal to the for the first 2 years of IOLTA operations firm’s pro bono work. Participants also interests of lawyers, but to their exper have been directed to these proposals. received copies of the Standing Com the. Sonic lawyers have been hesitant to The KBA Pro Bono Committee also mittee’s publication, The Law Firm Pro volunteer for pro bono cases because provided one year funding to several Bono Manual. many traditional legal services cases re fledging programs in 1988. quire litigation skills and experience. Law firm management has learned that Non-litigation and transactional lawyers As experienced by PBIP staff over the pro bono is good for the bottom line. have been able to offer their skills to past 8 years, it is very difficult to estab Associates and junior partners receive projects which assist in community lish effectivepro bono programs inrural hands-on and in court experience which areas. Historically, rural legal services

August 1989/the Advocate31 programs faced with the mandate of in growth during themid-1980’s, interestin sionalism and quality control for pro volving private lawyers in delivery of pro bono representation is experiencing bono organizations, civil legal services to the poor estab a resurgence as reflected in the increase lishedcompensated programs. Programs in the rate ofnew lawyerparticipation in -further definition ofthe roles ofthe legal contracted with lawyers and firms to organized pro bono during the past two profession and government as the ul handle specific case types suchas uncon years. As with the growth of an in timate provider of resources for serving tested divorces and simplebanhupicies. dividual or organization, pro bono will the civil legal needs of the poor, and Otherprograrns establishedjudicare type transition through new phases in the -the panels where lawyers would be paid a 1990’s. Some of the issues discussed development of plans forintegration reduced hourly rate to complete cases above, of all components of the system of such as mandatory pro bono and delivery of legal referred by the legal services programs. law firm activation, will continueto have services to the poor. Variations of these models existinmany an impact on the numberof lawyers who The ABA remains committed to the im rural areas. Legal services programs will participate in organized pro bono. provement oflegal services have experimented with mixed delivery delivery sys Significant problems will be en tems. The ABA Consortium on Legal systems, combining pro bono panels for Services and the Public, through the certain types of cases with compensated countered by pro bono programs if volunteer participation increases as ex Private Bar Involvement Project, offers arrangements for others. A number of its assistance all segments pected. New issues will include: to of the rural legal services programs have at professionsharing in this goal. For more tempted to transition private attorney in -the development of more efficient or information on pro bono activation and volvement from compensated to pro national trends in the pro bono, varying ganizations to match lawyer resources call the bono with degrees of success. with client needs, PBIP Information Coordinator at 312 Similar efforts are being undertaken in a 988-5769. number of Kentucky counties. -the evolution of the pro bono coor dinator as a vitalcomponent of the legal DENNIS A. KAUFMAN PRO BONO IN THE 1990’s services delivery system, Staff Director ABA Private Bar Involvement Project Following a period ofrelatively stagnant -the development ofstandards ofprofes 750 North Lake Shore Drive Chicago, Illinois 60611 312 988-4664 Dennis is Staff Director of the ABA Private Bar Involvement Project. Prior to his currentposizion, he was the Execu DRUG LAW REPORT tive Director of WesternKentucky Legal * The Editorial Advisory Board Includes: Alan Ellis, Gordon Friedman, Gerald Goldstein, Services. Michael Kennedy, AlbertJ. Krioger among others. Appalachian Blacks Among U.S. Poorest DWPORT. William Turner, Berea College’s outgoing Goode Professor of Black and Appalachian Studies, remarked at the "Blacks in Appalachia: From Invisibility to Importance," two day -- S seminarheld at the college that black ._._ ..?-rWr Appalachians are among the poorest groups in the country and have an -.- WaS.,._W__fl. a income about one-half that of whites in the poverty stricken region."Ifyou live in an area where poverty is en demic, does being black make you : poorer still? The answer isa resound ing ‘Yes" High migration, unem ployment and low educational levels help create the situation. The only group worse off than black Ap palachians are rural black people in AvaHable from: certain parts ofthe Mississippi Delta. Despite even worse poverty than their inner city counterparts, Turner Clark Boardman Company, Inc. said they have avoided high crime 435 Hudson Street and delinquency rates. The families New York, New York 10014 have apparently managed to buffer 212 929-7500 them and keep them away from the trouble you see in southeast Wash Published Bl-monthly ington or the south side of Chicago. -Associated Press.

August1989/the Advocate32 THE CAUSES AND CURES OF CRIME

Doug Magee reflected at our 17th An mr front window. Also from that front Spenkelink to being a member of the nual Public Defender Training Seminar window I can look down Lexington executive committee of the National on what causes crime and what has the Avenue tothe Upper East Side of Man Coalition to Abolish the Death Penalty. potential to cure it. We present his hattan and some of the richestreal estate remarks. in the world. Riding the bus up from I would like to begin my exploration of downtown Istay on long after the bushas the causes and cures of crime with a look I am an observer in the criminal justice crossed the DMZ separating the Upper at that death penalty debate.I think there arena, one with a particular perspective, East Sidefrom East Harlem. If you har is much we can learn from it. one with a certain set of experiences and bor some illusion that we live in an in biases. I think it fitting, then, though tegrated society you might want toride I don’t think for this audience I need to perhaps somewhat self-indulgent, to that bus with ins some day. The dif rehash the past 15 years of capital give you a bit of my background before punishmentbrouhaha.During the seven ference between the haves and the have ties the mood of the country underwent dealing withthe question at hand. note is tangible in that ride, I can assure you. a sea change with regard to state sanc OUR EXPERIENCE tionedkilhing,politicians didn’tmiss this So that’s my perspective. Now for the shift andhelped tofurther it, thirty-seven To my mind the most salient feature of experiences that have brought me here states enacted death penalty legislation, that background is the fact that I have tonight. Ifirst walked into prison when I Gary Gilmore called for his own execu livedforthepast20yearsinEastHarlem, taught a photography course at SingSing tion, the Supreme Court allowedthe state a black and Puerto Rican neighborhood in upstate New York while in graduate tokill him, and we were off. Since then inNew York. moved into the neighbor schooL That was shortly after the Attica a hundred and ten people have been ex hood directly after college as part of a uprising and in the twilight of what I ecutedand the death penalty has become graduate school program and never left. would call a hopeful period in our something of a litmus testforpoliticians Ihave lived in tenements for most ofmy criminal justice system. Since those first and government leaders. We are told by time there but my life, for the most part, experiences with prisoners, some of those favoring executions that weneed is that of a white,middle class American. whom I am still in contactwith and con the punishment in order to keep us safe, sider Mends, I have worked as a jour to protect usfrom arising wave ofcrime. Why, you probably ask, when I could nalist covering criminal justice topics, I live in the suburbs Igrew up in, do I have written a book of interviews with This sort of reasoning is puzzling to me. choose to live in what we used to call a people on death row, I have written a The death penalty has neverbeen proven ghetto? I can’t answer that completely book of profiles of families of murder to have a deterrent effect and in factmay but I can say that when Imoved into the victims and Ihavebeen activelyopposed have just the opposite effect, it is ex neighborhood I did so with Stokely tremely costly and is a court cloggez if to capital punishment. In addition to this was Cannichael’s words in my ears. "Your workmy life has been touchedby crime there ever one, it is proneto horrible politics are determined by what you see the way many millions of lives in this error and is biased against the poor and outofyourfront window" he said at one country have been toucheda friend was minorities. Yetpeople still see it as the point during the ‘60s and I agreed with raped and murdered. My apartmenthas Eldorado of the criminal justice system. him.Istilldo. been burgled several times, and I have Watching the country turn to the death What I see out my front window is the been robbed at brifepoint. penalty makes me think of a man who urban underclass in all its complexity. owns a sleek, powerful car and who The crack trade flourishes on the corner THE PENALTY OF DEATH wants to increase the horsepower of his across from my building, happy well- engine so he ties a horse to the back cared for children play in a housing Ihavebeen,for themostpart, anobserver bumper. To him it sounds right. Horse project park down the street, garbage of the criminal justice system and only power, horse. After driving for a while, collection is shoddy at best, church seldom, thankheavens, a participant. But though, he finds that not only does the groups feed the homeless, the schools in one area I have become more than an horse not add to the speed of his car but observer andwillfully so. That area is the it’s slowing him down considerably. operate with the most meager resources debate overthe reimposition of the death imaginable,and thepolice claim they are country the helpless to wage what they term a war penalty in this during past So too with the death penalty. The equa against criminals. fifteen years. Not only have I written tion sounds right. We want to increase about this subject but Ihave done every penalties tokeep our streets safe and so While I am not poor or a minority my thing from chaining myself to Bob we go to the "ultimate"penalty. Like the perspective on issues such as crime has Graham’s fence in Tallahassee to try to car owner though I’m sure we will one certainlybeen informed by the view out prevent him from executing John daycome torealize that thedeathpenalty

August 19891 the Advocate 33 Reprinted by pexmission of the Lexington HeraldLeader and il1ua.raor. Joel Pea. is an enormous drag on our criminal jus more productive examination of the comes to defining crime and I imagine tice system. causes of crime and,hopefully, to a par you thought "What abut murder?" Cer tialcure. The basic tenets of this middle tainly we can all agree that murder is If you saw a car owner tooling down the road are that no man or woman is an wrong but here toowe have a definitional highway witha thoroughbred strapped to islandandyet somemen and women may problem. Killing is not always illegal. his bumper you’d have to wonder how be peninsulas. That is, we are all in this The police are given dispensation in cer much that car owner knew about the together ashuman beings. We have been tain killings and the state can execute a engine under his car’s hood. So too with born into a world and a culture and from select few criminals without fear of the death penalty. Watching the states birth we have been dependent on others prosecution. In thinking about the causes and how the federal government reach forour survival. Weinfluence others and of crime and its cures we have to keep in for capital punishment makes you areintuminfluenced.Wehavefreewill mindthefactthat crime is whatwe say it wonderjust howmuchthose responsible and a modicum of independence but a is. for criminal justice policy know about central part ofour humanness is our con crime and its causes. nection to others. Some among us, like CRIME IS IRRATIONAL courseopponents of the death penalty peninusulas that jut out into the ocean, Of are aberrant in hurtful ways. We can If you look at any one criminal act close are, forthe mostpart, notmuchinterested punish these people all the way to extinc lythere is always a question mark at the in the causes ofcrime. For them the cause tion but we cannot sever our ties to them. center of things. In talking to the families of a particular crime is contained in the of murder victims I found that the word report. into a certain If indeed we dokill themfor theirtrans police X walked gressions we kill a part of ourselves. Why was common to all of them. Many liquorstore,robbed the store, shot Y and victims’families made scrupulous inves left. Those who bring up such things as WHAT IS CRIME? tigations of the circumstances that led to the murderer’s mental state, his back the death of their loved one but even at ground and the abuse he has suffered, the We, of course, decide what is crime and the end of their investigations the ques society he was born into, his educational what is notcrime. There areno absolutes. tion Why persisted. That is true of lesser deficiencies, and the easy availability of We make up the rules. For instance, one offenses as well. The thief who steals handguns are, to the death penalty highly addictive substance, tobacco, bread for his family still must be asked proponent, criminal coddlers, soft- takes the lives of an estimated 390,000 why he didn’tfmd some legal avenue to headed liberals. people in this country every year and is provide food forhis home. In seeking the While the death penalty presents an ex legal. Another highly addictive sub causes of crime we must realize that aggerated case, in it we see the lines of stance, cocaine, is responsible forfar, far criminal behavior is, at base, irrational. demarcation in the present attitudes fewerdeaths each year and yet is illegal. toward crime. Proponents of the death Changing this situation, making both 5 CAUSES OF CRIME substances legal or making both illegal, penalty put the entire blame for a crime That basic irrationality aside, however, with the criminal, opponents are more would clearlyhave an effect on crime in America.Youmight saythis is hair-split let me be specific about some of the likely to see societal problems as part of things I see contributing to crime, caus the equation. ting, academic rigamarole, just words but we who live by words would beg to ing some of us to be anti-social in our differ. We call the coke dealer a filthy behavior. WE ARE CONNECTED TO criminal. We call the tobaccosalesman a OTHERS businessman. 1. EDUCATION I think there is a middle road in this I said there are no absolutes when it Education is at the top of my list. In a debate, though, one that will lead to a

August 1989/the Advocate34 recent study of ten thousand inmates in take place. A young thief get sent to fire, though, it bums up the roots of the New York State correctional system prison and begins to meet a variety of children and turns them into fearful, dis researchers found that eighty percent of people who have had experiences dif trusting, violent adultswhohave learned the inmates entered the system without a ferent from his. Like a college freshman by example awarped and twistedkindof high school diploma, 50% functioned meeting kids from other states he makes love. I have no statistics at hand but below the 8th grade level in reading, and contactwithpeople fromother towns and anecdotal evidence is really all you need 73% functioned below the 8th-grade other parts of his city. When he gets out, to understand the link between child level in mathematics, yet 69% of these when his money runs low, when he has abuse and crime. Run through the case individuals said theyhad attendedschool to feed a habit, his networking ex histories of the men and womenon death at least until the ninth grade. Similar perience pays off. row, lookat the biographies of prisoners studies in other states have supported in general and you will be surprised by these percentages. Those people our With our prisons bursting at the seams as the incidence of child abuse in this educational system fails are much more they are now we can be certain that this population. Unless you believe children likely to end up committing crimes than criminal networking process is being are born criminals, which I don’t happen those who are properiy educated. carried on and that those who are tobelieve,youhave to acceptthe factthat releasedfrom prison will make the most one widespread and pervasive problem Once in prison the opportunities to cor of their prison experience. Some of us inthe society is causing another. rectforeducational deficiencies areruin may feel good that we are locking up imal°and getting smaller.Prisons now are more prisoners, building prisons, intro The cure here, of course, is to break the seen as punishment places, warehouses, ducing shock incarceration camps and cycle of violence, to attack the problem and efforts to educate prisonersare either keeping prisoners behind bars for longer of child abuse and thereby prevent the irrelevant to work after release, inade periods of time. But I for one think we criminality that grows from it. That’s quateor unavailable to certain inmates. are making a big mistake. much easier said than done. Child abuse is an age-old problem and itself is caused Justbecause a person doesn’t do calculus There are, certainly, some people who by a variety of factors. A beginning. or can’t speak French doesn’t mean he or must be kept away from society for our however, would be to acknowledge the she is bound to lead a life of crime, of safety. But the vast majority of people role child abuse plays in crime, tomake course. But being without education in now in prison don’t fall under this serious attempts to detect it early in our information based society is like category. Most are there to be punished juvenile cases, and to treat it as a societal being thrown off a train for not having and in punishing them we feel we are problem not just a domestic one. We ticket. It’s very hard to get back on the somehow curing crime. I think theop must intervene in child abuse cases not train legally. Children who fail in the posite is true. Our presentprison policy only to protect the child but to protect educational process most often do so is going to cause more crime than it ourselves. when they are very young. This failure cures. and the attendant ostracization from the 4. TELEVISION mainstreamleads to early loss ofself-es Ihaveseen letters to the editor inthe New teem, hope, and career possibilities. It’s YorkTimes and otherpapers in which the Television is 4th on my list I must say no big wonder that criminal behavior writerbemoaned thejails and prisons for that I am not much of a television * follows in the wake of this failure. not being more harsh in their punish watcher myself but I do appreciate the merit. Thesewriters said that going from medium. I think it has enormous poten The cure for this cause of crime is ob the streets toprisonwasnobigdeal for tial for good, for knitting us all together, vious but, sadly, one that we are not many criminals, an easy change in en and for teaching and entertaining. But moving toward with any great speed. I vironments. That may be true to some nevertheless I have it on my list of the would love to hear a politician running extent but to say that is to make a com causes of crime. When I link television for office make a speech in which he or ment about the livingconditions some of and crime you probably imagine Fm she tells us about the scourgecrime is to our society are forced to live in rather talking about the pervasiveness of our society and then makes a ringingcall than that prison is the good life. violence on the box and the way those for a radical improvement in our educa hundreds tional system. Harsh prison sentences are not the of murders and car chases answer to the problem of prisons breed numb us all to the reality of violence. There is that, of course. While doing 2. PRISONS ing crime. First offender programs that truly work, alternatives to incarceration interviews on death row in Arizona I Prisons are second on my list. Prisons for victimless and non-violent crimes, talked with a man who put it most suc may not be educating prisoners for a and increased educational opportunities cinctly.He said, "You watch TV andyou return to society but they are places of a forprisoners will speak to the problem in see a lot ofpeople get killedon TV. John a meaningful way. Wayne dies 5 times a week. He gets up certain form of education. It’s a cliche by and goes home. In some now that prisons breed criminality but people’s minds that tired truth is still a truth. People 3. CHILD ABUSE that’s what capital punishment is...And I stumping for harsh punishment for guess Ifelt that way until the first person criminals often call prisons country Child abuse is thirdon my list. We most cUed of my own hands." clubs. They use the analogy to point up often think of child abuse as a crime in and ofitselfbut Ihavebecome convinced But televisionas a cause of crime is more what they feel is the life of Riley behind subtle than just seeing violence on the bars. But the analogy can be used in that it is most pernicious as a cause of crime. Iwould like to use the term in its screen and copying it. If you believe as I another way as welL Country clubs often do that crimeis often anexpressionof the function as a place where the well-to-do widest application. Children who are disparity between ravaged psychologically by parents are the haves and the do business, a networking nexus. Many have-note, television is the medium by a foursome has led to information shar abused almost as if they had beenbeaten. abuse forms widespread which this disparity is writ large. I’m ing, increased business contacts and the Child in all is a speaking here mainly ofadvertising. The like. So too in prison does a networking phenomena but one that is onlyrarely in the public view. Like an underground seductivenessof those 30 second spots is

August 1989/the Advocate 35 designed to sell a product but it also will be offensive to many of you but I off the bubbles. All our cures will be for spawns a desire. Imagine a single mother don’t think half-answers will work here. naught if we don’t accept the fact that in my neighborhood, sitting in a barely Our history with Prohibition in this crime, while an act of an individual, is a furnished apartment, locked in a Kaf country should have taught us a lesson societal problem at its heart We are, as kaesque welfare system, struggling to but apparently it didn’t take. Banning I’ve said, all in this together. When the keepfood on the table, watching an ad in mind-altering substancesdoes not work. criminal becomes thedevil incarnate and which a blissfully married couple coo It only creates an alternative economy, we the angelic guilt-free ones, we have over their new infant and subliminally one that saps our resources when we try missed a basic tenetof our humanity, our entice you to buy baby furniture or to control it. Instead ofspending millions connectedness. clothes the woman can never afford on and millionsof dollars trying to interdict herchecks.Shemaynotrunoutandhold shipments orcorral street dealers oreven You’ve probably heard about the young up a baby furniture store but the desires nail so-called kingpins, we would be so woman jogger in Central Park who was planted in her by that ad and countless much farther ahead as a people if we raped, beaten and left fordead by some others will build and will find some sort excluded drugs sales and use from our 30 youngsters. Thosekids all live several of outlet. Imagine also a young teenager laws and began to take drug treatment blocks from my house.I don’t know any watching a basketball game on programs seriously. I’m sure many of of them though some of them go to the television. Every time there is a timeout you imagine that such an environment, same school my son attended. And I shiny BMW’s or Volvos come whoosing inwhichyoucouldwalkinto astore and don’tpretend to understand the specific at him over undulating roads. If he is buy agramofccke, wouldbe chaos and causes of their horriblecrime nor could I living in some neighborhoods he walks would lead to the complete disintegra suggest a cure, something that might outhis front door after the game and sees tion of society as well as many deaths haveprevented it But I do know that our several such cars parked in driveways from drug abuse. I don’t dispute that reaction to them is crucial. If our con along a tree-lined street He knows that there would beproblems butat least we’d centration is solely on punishing them one day he too will have a car like those be dealing with the proper ones, those we will onlybe feeding the brokenness. on the screen. If he’s living in other concerning the human need to get high, If we don’t seea bit of ourselves in them neighborhoods the scene is much dif the difference between drug use and we will onlybe feeding the brokenness. ferent, however. He sees no cars like abuse. But I’m sure that people in the A victim needs our help and some very those in the ads except for the ones being twenties thought the end of Prohibition troubled youths need our help as well. A driven by the drug dealers. would be the end of society too. I seein crime is a wound. The worse the crime my neighborhood, where drugs are to the deeper the wound. The deeper the I don’t think the cure for this part of the some degree legalized as far as use is wound the more the whole body has to problem is to ban advertising but I do concerned, patterns of drug use that sug marshal resources to heal. think that we in this country are going to gest there would be no chaos, no reefer have to have some part of the education DOUG MAGEE madness. I trust that people will learn 1800 Lexington Ave. ofour young include a visualliteracyand how to deal with legalized drugs just as a critical appraisal of the things we now Suite #5N they have learned to deal withlegalized NewYork, 10029 sopassively accept on television. alcohol, cigarettes and caffeine. And our NY, crime ratewill drop accordingly. 212 348-5877 5. DRUGS Doug I, a graduate ofAmherst College and CRIME EVIDENCES BROKENESS Union Theological Seminary. He Is a screen I’m going to end my list with an obvious wrlter,photographer, andanthor ofWhatMur. one. Drugs. Half of all the homicides in Ahighincidenceofcrimeinasocieryis der Leaves Behind: she Victim’: Family 1983 New York last year were drug related. an indication of a brokenness. Crime, as and Slow Coming Dark: IntervieWs on Death We are told we are in a war against drugs I have said, is defined by a few and Row 1980.Doug haslivedforthe 1a118years and we have a drug czar at the highest applied When those who the In East Harlem, NY a neighborhood Infested to all. make with crime and with glaring criminal justice level of government. While unemploy rules and those who are to follow them ment in a neighborhood like mine is are segregated by class, color, religion, astronomical the crack houses are hiring whatever there is bound to be friction at a land rush pace. Crime rates and a rising crime rate. Crime can be Poverty Level throughout the country have been ef likened to the bubbles rising from a boil fected by the attempts to suppress the ing potof water. The more heat the more In 1983 one-half ofmales in jail who drug trade. There is no doubt that drugs bubbles.The more there is a brokenness had beenoutfor at least ayearhad an cause crime. and divisions in the society the more annual income under $5,600. Female crime is prevalent. If we want to stop inmates reported a median income of And there is no doubt in my mind about bubbles from boiling to the top of the pot $4,000 during the year before the the cure for this particular cause. Legal arrest. ize ‘em. Plain and simple. I know this we turn off the heat, we don’t try to skim 22% depended on welfare, SSI or Education unemploynrentbenefits 38% ofther women &% 11% of the women US. KY KY’S Rank had an illegal income. High School 60% had a wage or salary Graduates 71.1% 67.4% 39 23% depended on family or friends Spending Per 31% of women Student 83.977 82,733 46 74% of the women and 54% of the Jail Educational Levels men in prison have dependent 40% ofjail Inmates and 28% of prison Inmates had completed high school compaied to 85% children.-Burcau Justice Stitiatic. of the U.S. popu1a1ion.-Bn. of iuitics StitiMiw

August 1989/the Advocate 36 SELF DEFENSE BATTERED WOMAN SYNDROME

toward the person ofanother, hit he wantonly plied to a barroom stabbing between SELF DEFENSE:I. or recklesslyinjures or ereates a risk of injwy to innocent persons thejustification afforded men. by those sections is unavailable in a osocu A. GENERALLY that for an offaise involving wantonness or Practicallyspeaking, you must also con recklessness toward lnnocentpersons. vince the juzy that it was out ofcharacter Whether circumstances justified a for your client to kill someone; that kill defendant’s use of force in self defense Thus, if a defendant acted in what she ing this dead person was necessary in is a subjective inquiry. The use of force, recklesslyorwantonly believed to be self this situation; and that if they let her go, including deadly force, is justifiable defense, the degree of her culpability your client will never hurt anyone again. when the defendant believes that such may be lessened, but will not be com It is helpful if you can prove she will go force is necessary to protect herself pletely forgiven. If the defendant was home and raise her children with love against the useorimminentuseofunlaw reckless or wanton in forming herbelief and caring. A "battered woman" case is, ful physical force by anotherperson. See that it was necessarytokillinself-protec in essence, just like every other self- K.R.S. 503.050: tion, she may still be convictedof a lesser defense case.The issues are still: included offense for which the required KRS 503.050 Use of Physical Force state of mind is wantonness or reckless At the moment the defendant killed in Self Protection ness. Smith v. Commonwealth, Ky., 737 X, did she believe that using deadly S.W.2d 693,6871987. force against X was necessary in 1 Theuseof physical forcebyadefendant order to avoid immediate harm or upon anotherperson is justifiable when the defendantbelieves that such force is enceasmy K.R.S. 501.020 - Definition of Mental threatofharm to her? Was herbelief to protect himself against the use or ismtlecst State reasonable? use of unlawful physical force by the ether person. 3"Wantonly"-Apersonactswantcnlywith If the answers are "yes,"she goes home. 2 Theuseofdeadly physical forcebyadefen respect to a reiult or to a circumstance either answer is "no," she probably dan upon another person is justifiable under desnbedbyast*utedefininganoffcusewhai If subsection 1 only when the dg’endant he is aware of and Consciously disregards a doesn’t. believe.r that such force is necessay to irotect substantial and wtjualiflablerlskth&theresuk himself against death, serious physicil sujury, willocairordiattheclrcumstanceexists. The B. EVIDENCE OF BATTERED kidnsppmg,orsemalintcrcoursecanpcfledby risk mug be of such nature and degree tl WOMAN SYNDROME force orthreat. Emphasis added disregard thereofconstitutes a gross deviation fran the standard of conduct that areascmable really a A critical issue, then, is "When she per onwouldobsurieinthesimallon.Aperaca A "Battered WomanDefense"is what did the defendant believe?" who ereates suchariskbut isusaware thereof standard self defense case and relies on killed, sohiybyreascmofvoluiiaiyintoxicatiai also the same legal principles as other self What appears to be a totally subjective acts wantonly with respect thereto. cases. Battered Woman test, however, is not. The reasonableness 4 "Recklessly"- A person acts recklessly defense of the defendant’s belief may be ques with respect so a result or to a circumatatac Syndrome evidence can be somewhat deseribed by a etatutedeflningan otfensewhon different, in that it helps explain the tioned. K.R.S. 503.120 permits the fails to perceive a substantial and unjustifi the he defendant’s actions in instances where prosecution to make an issue of able risk that the result will occur or that the protect herself reasonableness of the defendant’s belief circumstance exists. The risk must be of such she acts to from an that she had to act in selfprotection: nature and degree that failure so perceive it ticipated violence against her as distin constitutes a gross deviation fran the standard guishedfrom an immediate attacL of conduct that a reasonable person would ob K.RS. 503.120 JustificatIon; save mthe situation. Throughpsychologicalconditioning that General Provisions Thus as both a legal and practical matter, occurs with repeated acts of violence 1WhenthedefondantbelievestbatthUsCof to win a self-defense case you must be against a woman, she learns to recognize force upon or toward the person of another is signs that indicate that another attack is which able to convince thejury that your client necessay for any of the pwposes for reasonably believed that she had to act in imminent Thus, BatteredWoman cases guchbeief wouldestablish ajustifleaticmundcr are often "anticipatory self defense" KRS 503.050 to 503.110 but the defaidasat is self-defense. Because what the defen wagon orrccldess mbelievnigthc use of any dant reasonably believed under the cir cases, i.e., "I knew he was going to beat force, orthe degree of force used, to be tacos cumstances is the ultimate issue in the me again, so I killed him before he had say or in acquiring or failing to ao9uirc any the chance." knowledge or belief which is material to the case, the defendant has virtual carte justiflabilityofhisuseofforce,thejustfficatiat blanche to produce proof of what she In a "Battered Woman" case, another afforded by those sections is unavailable in a believed at the moment she killed. Her prosecution for any offense for which wanton thing that is different from most other ness or recklessness, as the case may bc, suit. entire life experience, particularly her self-defense cases is that the defendant 6cc. to establishculpability. past experiences with the decedent are and thedead manusually had a long term 2 When the defendant is justified under KRS material. That principle is no different in relationship. The relationship is often 503.050 to 503.1 10 in using force u or a "BatteredWoman"case than when ap

August 1989/ the Advocate 37 "husband and wife" or "boyfriend - presentthemselves in other relationships As the cycle pattern of violence is gir1friend."The name "BatteredWoman marked by episodic violence. There are repeated overand over, and the assaults Syndrome" resulted from the context in battered women; battered men, battered on the victim become more extreme, the which the psychological phenomenon children; and battered elderly people. victim learns to recognize the "signs and was originally studied and defined. One should look for evidence of a "Bat symptoms" of an impending attack "Battered Woman Syndrome" will be tered Woman Syndrome Defense" any against her. She may even learn to delay included in the new Diagnostic and time that the incident from which the the inevitable acute battering incident by Statistical Manual DSM-IV of the charges arose involves a defendant who placating her abuser insome way. Even American Psychiatric Association, as a struck out to"protect himself against the tually though, tension and hostility build subclassification of Post-Traumatic threat ofa repeatedassault and the person toward what the victim intuitively recog Stress Disorder. That docwnent, unfor killed hadbrutalizedor bullied thedefen nizes to bean imminent life-threatening, tunately,will notbe publishedforseveral dant in a substantially longtermrelation acute battering incident. Itis then that the years. ship. woman or other victim strikes out, usually witha weapon as an "equalizer," C. POST-TRAUMATIC STRESS The relationship which gives rise to ‘a to protect herself from a pending attack. DISORDER "Battered Person Defense" is typically markedby a bizarre mixture ofaffection, A battered woman has, by defmition, Until theDSM-IV is published, attorneys hostility,aridviolence. There arepredict taken a lot of abuse. She has a lot of and members of the mental health com able periods in which affection charac terrible stories to tell and all those awful munity must use existkng categories to terizes the relationship, followed by a stories are what goes into determining defineand explain the behaviorof batter period of tension building between the what the defendant "believed," and ing victims. "Battered Woman parties, and episodes of acute violence. whether she wasreasonable inherbelief. Syndrome" is constructed from, and has Those characteristic periods, described Obviously, if your client has an ap been defined as, a subclassification of by Dr. Lenore Walker and other psycho propriate self-defense case, shebelieved "Post-traumatic S tress Disorder," logists and psychiatrists as "LovingCon that shehad to kill her abuserto preserve P.T.SD., which is currently recog thtion,""TensionBuilding," and "Acute her own life. That, in a nutshell, is what nized by the American Psychiatric Violence," occur overand over ina pat you have to prove. Association’s Diagnostic and Statistical tern ofever escalating intensity until the Manual DSM ffl-R as a "disorder." violent episodes become life threatening While the classic incident is one that The essential feature of P.T.S.D. is the or present an obvious threat of serious involves relationships betweenemotion development of characteristic symptoms physical injury to the victim. This pre ally attachedmen and women, remember following a psychologically distressing dictable pattern of Loving Contrition- that cyclical pattern violence does occur events which are outside the range of Tension Building- Acute Violence is inother contexts: abuse of the elderly, in usual or expected human experience. referred to as the "Cycle"Theory of child abuse, and others. i.e., outside the range of such common Violence." experiences as simple bereavement, E. PROVING BATTERING The victim is usually the female or other chronic illness, business losses, and As the attorney representing a battered marital conflict. Characteristic symp physically weaker partner, for obvious woman, toms involve re-experiencing the reasons related to her/his inability to or other victim of cyclical pat protect herself from her larger, more tern violence, you must corroborate your traumatic event, avoiding of stimuli as client’s account of events extensively. sociated with the event or numbing of powerful male partner. After an acute The question general responsiveness. battering incident, the "Loving Contri you want jurors to ponder tion" stage is marked by protestations of as you prove years of physical and emo The most common traumata involve love and assurances by the abuser that he tional abuse is, "Why’d shewait so long either a serious threat to one’s life or will never be violent again. His apparent to shootthat son-of-a-bitch?" By the end physical integrity; a serious threat of sincerity, remorse, and assurances of of the trial, you must build a case that harm to one’s children, spouse, or other reform,incombination with the genuine convincesjurors that"just leaving," call close relatives and friends; sudden affections usually involved in the ing the police, or taking other less drastic destruction of one’s home or community, relationship, provide powerful incen action to protect herselfwas notrealistic etc. The trauma may be experienced tives to the abuse victim to refrain from and that use of a weapon was the only alone, as is usually the case in battering reporting the assaults to the police or alternative for the victim. situations. Sometimes in P.T.S.D. and other authorities. If you have eye-witnesses who establish almost always inBatteredWomencases, beyond doubt that your client acted in there is a physical component of the In addition, other factors such as embar economic self defense, that’s great, but chances are trauma, such as a head injuiy, involving rassment, dependency, fear, you won’t. Most battered women who direct damage to the central nervoussys and lack of effective response from law past may killtheir abusers do so in private. That is tem. In fact, the "Psychosocial Stressor enforcement officials in the usually because the women are battered Scale" in the DSM ffl-R lists ongoing influence the Victim not to report the such as leav inprivate. So, you’renot likely to have a physical or sexual abuse as a level 5- assaultsor take other action lot of eye-witnesses. "extreme" stressor. Captivity as a ing her abuser. Often, the victim’s self "hostage," which is a common feeling esteemis solow that she rationalizes that Who are your witnesses then? People among battered woman, is listed as a she must have"deserved" being beaten. who saw prior incidents of abuse. People level 6 -"catastrophic" stressor. As counsel for a battering victim, you who heard the thumps and crashes that must analyze your client’s motives for go with beatings. People who saw the D. BATTERING: CYCLICAL staying withherabuser, notreporting the effects of abuse- broken bones, frac VIOLENCE abuse to the police, or failing to take tured teeth, black eyes, bruises, cuts, ovher action to protect herself. Those It is veryimportantto understand that the stitches. People she went to for help. questions wilt be raised at trial and you People she told about it. Even people to same psychodynamics, and thus, the must be ready to answer them. same legal justifications can and do whom she denied being abused and told

August 1989/ the Advocate 38 elaborate lies to account for herphysical Whenevar you are dealing with a self- April, 1989. injuries. Those are the people who can defense case, consider whether a cycle- help prove what the battered woman patternof violenceexisted between your believed and whether, then, her fear or client and the person he or she killed. II. KENTUCKY her abuser was reasonable. A.V. Conway, of Hartford, Kentucky, BA! IERED WOMAN successfully defended an elderly man CASES Lots of hearsay evidence may be ad who was chargedwith murder for shoot mitted in any self defense case to show ing his adult son. Commonwealth v. A. Commonwealth v. Rose, Ky., 725 the state ofmind ofboth thedecedent and Charles Chadwich, Ohio Circuit Court, S.W.2d 5881987. the defendant at the time the defendant Case no. 86-CR-053, December 23, killed the decedent. See:"Memorandum 1987. The son was an abusive drunk JnRose, the court upheld a conviction for of Law in Support of Admissibility of who often came tohis parents’ home and second-degree manslaughter, where the Evidence ofPrior Acts and Threats of the assaulted his ederly mother and father. defense offered was self-defense Decedent," from Commonwealth v. On one such occasion, the father ordered specifically, the Battered-Woman Heidi Harmeling,Kenton Circuit Court, the sonfrom his home.Whenthe abusive Syndrome, butthe defendant contended Case no. 86-CR-298 June 30, 1987, son refused to leave and announced his that shedidnot i,Uend to kill the victim. which is available from the author. Because intentional murderrequires in- tent to kill, under the circumstances in Among the information you can develop Rose, the jury could have believed that through hearsay witnesses is proof: the defendant shot her husband, believ ing it necessary for her self-protection, 1. That your client told them, in the but that she did not actually intend to past,that the decedenthad threatened cause his death. The circumstances were orassaultedher.Fannon v.Common such, however, that the jury could wealth, 175 S.W.2d 531 Ky. 1943. believe thather conductwas "wanton" as 2. That the decedent had told the definedby statute and that she was aware witness that he had threatened or as of and consciously disregarded a sub saulted the defendant in the past, stantial risk that death would result, even if the accused did not hear and Thus, the Court held that the instruction was not awareof the statement.Wil on second-degree manslaughter was son v. Commonwealth, 551 S.W.2d proper. 569 Ky. 1977; Carnes v. Common wealth, Ky.,453 S.W.2d 5951970; Prior to the Supreme Court’s decision in mtention to assault his father again, his Rose, in homicide cases where the Wigmore on Evidence, 3d Ed., Sec defense was "self-defense," the cases tion 110, p. 546. father killed him with a gunshotthrough the heart uniformly supported the proposition that 3. That the defendant had shown the the use of force in self-defense was an witness bruises or other signs of in A.V. Conway recognized that the same Intentional" act, not a "wanton" or jury in thepast and toldthewitness cycle pattern of violence existed in the "reckless" one. See, Baker v. Common thatherinjuries hadbeeninflicted by relitionship ofhis elderly client and the wealth, Ky., 677 S.W.2d 876 19M the decedent. Fannon v. Common client’s adult son as exists in spouse Gray v. Commonwealth, Ky., 695 wealth, 175 S.W.2d 531 Ky. 1943. abuse situations. At trial, a "Battered S.W.2d 8601985. Parent" self-defense theoiy of the case 4. That the defendant was aware of resulted in a complete acquittal. The Rose court, in an opinion by Justice the violent propensities of the dece Leibson, held that evidence on battered dent toward others. Carnes v. Com G. NEGATING OTHER ELE woman syndrome was properlyadmitted monwealth, 453 S.W.2d 595 Ky. MENTS OFCRIMES toestablish that the defendant may have 1970. been acting under a subjective percep Another very interesting application of tion of needfor self-defense. The Court, 5. Any otherevidence indicating the "battered woman syndrome" evidence however, refused to allow the defense hostile attitude of the decedent was presented by Ellen Leesfield, Attor expertwitness, a registered nurse, to tes towardthe accused. Jackson v.Com ney, of Coconut Grove, Florida. Ms. tifythat the defendant was suffering from monwealth, 200 Ky. 316, 254 S.W. Leesfield utilized evidence of the the BatteredWomanSyndrome, because’ 913 1923; McQueen v. Common syndrome to negate the element of 1 the "expert" lacked the training and wealth, Ky., 393 S.W.2d 787, 790 "specific intent" in a federal criminal professional credentials to make a 1965. prosecution for check fraud. Her client psychological diagnosis, and 2 because was accused of having passed money the offer of testimony extended beyond F. "BATTERED" DEFENSE IN orders which her boyfriend had stolen a professional opinion regarding the OTHER CONTEXTS from packages at his place of employ accused’s mental condition to the ul ment At his instruction, Ms. Leesfield’s thnate issue of the accused’s state of The "cycle theory of violence" appears client had endorsed and cashed the mind at the time of the act, decisive of in relationships other than husband - money orders, The court admitted ex herguilt or innocence, thus, invading the wife. Elderly parents are sometimes sys pert testimony relative to Battered province of the jury. tematically abused, physically and men Woman Syndrome for the purpose of tally, by their adult children. A bully may negatingspecific intent See: "Faith and B. CRAIG V. COMMONWEALTH, harass and assault the same person over the Battered Woman one person has to Love: Use of Craig v. Commonwealth, 87-CA-1709- and over. Whenever Syndrome to Negate Specific Intent," live in fear of assault and abuse at the MR,35KLS 10,P.9, 1KYLP1-12lJn- The Champion,JournaloftheNatLAssn. opinion Rendered 8/19/88 hands of another, cyclical patterns of of Criminal Defense LaMyers, pg. 9 published abuse may develop. distinguishes Rose, holding that it is re

August 1989/the Advocate 39 versible error to exclude testimony of a 298 June 30, 1987, which was tried to Plea bargainingIs not something to be properly qualified expert that the defen acquittal by the author, and Common ashamed of or to approach with a dant was suffering from Battered wealth v. Charles Chadwick, Ohio Cir negative attitude. If you can get your Woman Syndrome at the time she shot cuit Court, Case no. 86-CR-053, client a better outcome through pleabar and killed her estranged husband. A December 23, 1987, tried to acquittal gaining than you can reasonably expect divided panel of the Court of Appeals by A.V. Conway, 124 W. Union, to obtain at trial, you are doing your distinguished this case from Rose, on the Hartford, Kentucky 42347; 502 298- client a disservice by going to trial. grounds that Craig’s expert was better 3231. Criminal litigation is often a matter of qualified to testify than the witness in "risk management." What is the Rose. Craig’s expert not only had the D. ADDITIONAL LEGAL READ defendant’s "exposure" at trial? The experience withbattered women claimed ING "deal"of the pleaoffer is what the defen by Rose’s expert, but also had a master’s dant risks by going to trial. One must degree and "further advanced special Generally, see: The Battered Spouse weight the benefits of the offer against training focusing on the problems ofbat Defense in Kentucky, Elizabeth Vaughn the exposure to a worseoutcome at trial. teredwomen." and Maureen L Moore, 10 N. Ky. L Rev. 399 1983; Fannon v. Common Not onlymust the risks be identified, but Although not disclosed in the an- wealth, 175 S.W.2d 531 Ky. 1943; some effort must be made to predict the publishedopinion of the court, the expert Faulkrierv. Commonwealth,423 S.W.2d probability or likelihood of any par witness in Craig was Phyllis Alexander, 215 Ky. 1968; Fleenor v. Common ticularresult at triaL In eveiy murdercase of Lexington, Kentucky. Ms. Alexander wealth,75 S.W.2d 1Ky. 1934; Cessna the defendant is, obviously, exposedto a is a Counselorin Spouse Abuse who was v.Commonwealth, 465 S.W.2d 283 Ky. risk of a life sentence, or worse. That is trained by Dr. Lenore Walker. Ms. Alex l971 State v. Kelly, 478 A.2d 364 NJ. the "worst case scenario." Lesser in ander has participated in approximately 1984; State v. Alle,y, 682 P.2d. 312 cluded offfenses are other possible out 30 workshops on the subject of spouse Wash. 1984; Wigmoreon Evidence, 3d. comes. In well selected trial cases, ac abuse, given numerous presentations on Ed., Section 110, P. 546. quittal is often, but not necessarily, a Battered Women, including one to the possible verdict. You must assess your Lexington Metro Police Department. E. SUGGESTED NON-LEGAL evidence, witnesses, and client; as well She testified on the subject before the READING as the prosecution’s, to determine Kentucky General Assembly when she Lenore E. Walker, Ed.D., A.B.P.P., The whether your client has anything to gain was the President of the Kentucky Battered Woman Syndrome, Springer by going to trial. Domestic Violence Association. She Publishing Company, N.Y., N.Y. Bywayof illustration,before and during was retained by the court in Woodford 1984; Lenore E. Walker, The Battered County in Commonwealth v. Shirley the trial of Heidi Harmeling, we offered Woman, Harper and Row, N.Y., N.Y. to enter an Afford plea to Negligent Kimbell and was accepted by Judge 1979; Lenore Walker, The Male Bat Henry Knox as a qualified expert. Ms. Homicide, a Class D felony, if the terer, Springer Publishing Co., N.Y., prosecutor and the Court would make a Alexander is a member of the Victim N.Y. 1987. AssistanceNetwork Board, The National commitment toprobate any sentence im Coalition Against Domestic Violence, posed. That, we believed, would have and The UnitedWay Domestic Violence ilL CASE SCREENING been a reasonable manner in which to Group. At the time she testified in the AND SELECTION avoid the risk of a murder or mans Craig case in 1987, Ms. Alexander had laughterconviction. Our offer was never approximately 6 years experience deal presented tothe Court,however, because Try good cases. Settle bad ones. Unless the prosecutors declined it. We were ing withbattered women. Currently, Ms. you areforcedtotrialbyanunreasonable Alexander serves as Director of the quite fortunate that the trial endedwitha prosecutoror client, you should notbe in complete Fayette County Spouse Abuse Center. - a courtroom with a case you can’t win. acquittal, butwithout a crystal "Winning" ball there was no way that we could does not necessarily mean predict the outcome with sufficient cer C. ALL THE CASES AIN’T IN THE "acquittal." Sometimes, winning is life BOOKS , tainty to ignore the possibility of plea instead ofdeath. Sometimes, it’s posses bargaining. Remember that the best self defense sion" instead of "trafficking." Some cases arethe ones which are norreported. times, winning is a misdemeanorinstead Even while a case is being tried there are Although it is possiblefor the Common of a felony. Think pragmatically about other opportunities for plea bargaining, wealth to certify questions of law by what it is you can reasonably expect to and, thus, the same analysis and weigh post-verdict appeal, appeals of verdicts win at trial. ing or management of "risks" continues of acquittal are very rare and, thus, are Within throughouttriaL Like Spuds McKenzie, not often the subject of appellate court Screen Your Cases. the bounds you and your client should know when trial court of your clients’ instructions and your to say "when." opinions. Obtain copies of the ethical duties, strive to try winners and clerk’s records in cases that ended in settle losers. If you know that your client acquittal. "Network" with the attorneys If you are representing Bonnie Parker does not have a chance at trial, explain and she has just been apprehended after who represented the defendants in those the facts theories your client which cases and get their advice about things and to a multi-statecrimespreeinwhich shehas make it so. If you sincerely believe that killeda dozen people, don’ttry to sellher you can do to maximize your client’s you can achieve a better result by plea chances of acquittaL Most attorneys are as a self defensecase. Remember that the bargaining rather than by trial, do it. If entire purpose of the court system, rules only too happy to help; it gives them a your clients are kept well informed and chance to talk a little about their past of evidence, and the rules of criminal Twosuccessful Battered Per properlyeducated, they will usuallyfol procedureare,and certainlyshould be,to successes. low your advice even if that meansenter reveal the truth and do justice. son self-defense cases you canstart with ing a plea. "Plea Bargain" is not a dirty are Commonwealth v. HeidiHarmeling, word if the bargain serves your client’s If truth and justice are on your side, you Kenton Circuit Court, Case no. 86-CR- best interests. shouldneverbereluctanttotryyour case.

August 1989/the Advocate 40 You should, instead, be confident that Woman Syndrome. Thus, you effective every doctor, hospital, or other medical trial byjury works and that you will win. ly convert potentially devastating care provider who has ever seen your Get ready for war. You are battling for prosecution evidence into strong defense client. Get all ofher records and examine someone’s survival andfreedom. It’s just proof of self defense. themverycarefully for information con like a gunfight; there are no second place sistent with incidents of physical abuse. winners! Carefullyexamineyour client’s personal It is common for abused women to tell effects for items that help prove your doctors that they were injured as a result theory of the case. Read diaries and let of a fall or other accidental cause. After 1V. PREPARING FOR ters. Spending timeatyour client’s home studying the records and identifying in AND CONDUCTING or apartment, with her and without her, juries that may have been caused by in THE TRIAL will give you insight into her character. cidents ofphysical abuse, review the cir Do notbe concerned about invading your cumstances that led to her medical treat A. INVESTIGATION client’s privacy or appearing nosy. You ment. If, in fact, the injuries were in are herchampion. You must understand flictedby abatterer,medicalrecords may 1. INVESTIGATE YOUR CLIENT evervthin about herinorder torepresent be used to corroborate assaults that are When a man or woman part ofthe reason foryour client’s fear of Spend a lot of timewithyourclient. Talk the abuserand, thus, part ofherjustifica with her. Learn to understand and em tion for killing him. pathize withher view ofher experience. You have to understand her ordeal and Even if the medicalrecords reflect some her actions in orderto make ajumy under non-abuse cause of the injuries, such as stand. Learn what is important to your a fall, present the medical records any client and what hervalues are . Look for way.Your client canexplainthe huniilia the ‘bad truths" as well as the "good tionorfear that motivatedher to lie about truths." If someone is going to have what caused herwounds. Although doc something harmful to reveal about your tors generally have a duty to report cases client at trial, it had betterbe you. of suspected abuse, theremay bereasons why they did not. Perhaps the doctors Don’t believe anything your client tells "bought" the victim’s other explanation; you until you have corroborated it perhaps they did not want to "get in through independent investigation. volved," perhaps they were unaware of Some peoplelie. Some people have poor their duty to report. memories. Battered women who have been emotionally and psychologically is about togo on trial formurder, it is no Medical records may also disclose frail traumatized for a long time, may ex time to be terribly concerned about ties or infinnities, mental or physical, perience "disassociative states" or other privacy or other sensibilities. Nothing that made it difficult for your client to medical problems with recall. In a about a defendant should everbe a secret defend herself without the use of a courtroom, even an innocent error of keptfrom her lawyer. You obviously can weapon, or which may help answer the recollection or one produced as a result - notevaluateanduseinformation that you question "Why didn’t she just leave of emotional trauma will look like a lie, don’t know about. him?" that will occur to every juror as if left unexplained. well as to the prosecutor. Alwaysgo through family photo albums. Similarly, if your client has given a pre Find ways to introduce sympathetic Check forpolice records. Was she ever trial statement to the police or prosecutor photos ofyour client "looking innocent." arrested? What for? Check divorce that contains misinformation, you must For example, in Commonwealth v.Heidi recordr, civil suits and judgtnenls work be prepared at trial to explain why the Harmeling, we introduced a greatphoto records; every place that may be a information was wrong. Under most cir of Heidi on a beach in Hawaii, holding depository of information about your cumstances, a defendant who is caught in her son on her lap. It was a lovely, client. a lie will be convicted. The prosecution "Madonna and child" type photograph. In every aspect of your preparation for theory is simple: "if the defendant is We wanted it before the jury to convey why did she have to lie?" trial, find ways to accent the larger size, innocent, precisely that message throughout the weight, and strength of the decedent, and Disassociation, flash-backs, fantasy, trial. We justified its admission into the need of your client to use a weapon repression, and other psychological evidence by offering it as corroborative as an equalizer. mechanisms that the humanmind usesto proof that Heidi bad gone to Hawaii to flee from her ex-husband and to obtain cope with and survive protracted abuse relieffromrepeated incidents ofphysical 2. INVESTIGATE THE CORPSE may make it impossible for a battered woman to give an accurate account of and mental abuse. It was admitted, then What you are trying to prove is: "The past events or of the homicide. Your leftwithin thejury’s view throughout the dead person needed to be killed in this mental health experts can help you ex trial to help create the proper image of situation! "Was he a drunk? Did he use plain those phenomena and help jurors Heidi in jurors’ minds. drugs? Was he a violent person? Was he understanbd that the apparent"lies" were abused as a child? Did he have a police Look through other memorabilia that record? Washe employed? What really only a part of the psychological your client has accumulated for clues to did his signs and symptoms that are normal for employer and co-workers think about positivecharacter traits that may be help him? victims of Battered Woman Syndrome. ful at trial. By effective preparation and presenta Did he support his children? Was be tion of the proof, what might have ap Obtain and closely examine all of your pearedto be a "lie" becomes part of the client’s medical records. During your physically or emotionally abusive to them? Was he evermazriedbefore? If so, corrobative defense proof of Battered early interviews, obtain the identity of examine his complete divorce file. Did

August 1989/the Advocate 41 he beat and abuse his prior wife? Were ion through your expertif the informa looked. Police Investigators often leave restraining orders ever issued against tion is important to the expert’s analysis behind evidence of their own errors - him because of violent behavior or and opinions and is the type of informa non-conforming scene diagrams, inves threats? Locate and interview his cx- tion that such experts generally rely tigative notes, etc. Those things too, are wife. If there were multiple divorces, do upon. There is a scientifically established importantDefense evidence. the same thing with regard to all prior correlation, for example, between being marriages. Don’t overlook girl Mends. abused as a child and being an abuser as Your goal is to absorb the prosecution’s He may have abused them, too. If so, an adult. Thus, with a proper foundation, case and make it part of your defense. A make them witnesses. If not, don’t. your expast can recount evidence of the well prepared self-defense case should decedent’s early life experiences that be totally consistent with all the scien Gather all of the decedent’s medical might not be 2drnisible under any other tific and forensic evidence. Police records. Ifyou cannot obtain a releasefor evidentiarytheory. see,Bucklerv.Corn laboratory technicians and medical cx the documents through the cooperation monwealth,Ky.,541 S.W.2d935 1976; aminersmake greatdefense witnesses in of the prosecutor, file a motion with the F.R.E. 703; 705; RCr 9.46; selfdefense cases. Evidence of "muzzle- Court for an order compelling the to-garment distance," ballistics, cause decedent’smedicalcareproviders topro Finally, remember that nothing is inad andmanner of death, and all other scien vide you with copies of their records. missible unless it is objected to and the tific evidence should be utilized to cor Through discussions with your client, court says it is not admissible. roborate your client’s account of events. you can develop theories of relevance and materiality to make a compelling 3. INVESTIGATE THE S. OTHER INVESTIGATION case in support of a motion for a court INVESTIGATION order to produce the decedent’s records. You should also investigate all wit Afteryou get them, examinethe medical Never rely on police reports, the state’s nesses, bothprosecution and defense; the records carefully. People say outrageous list of witnesses, police or prosecutor- jurors who will be sitting on your jury things to their doctors and most doctors conducted interviews, or prosecution panel; and the prosecutors you will be record those things in their files. In addi witnesses’ interpretations of physical or trying the case against. Know everything ion,the decedent’smedicalrecords may scientific evidence. Conduct your own possible about the people you will be disclose injuries indicative ofpast invol thorough investigation. Start with the trying the case to and against. Exploit vement in violence, e.g., broken hand, police investigation reports and go from their idiosyncrasies and attitudes fractured nose, black eye, etc. there. throughout your case. If the decedent had ever been through Identify and interview all possible wit B. EXPERT WITNESSES treatment for drug or alcohol abuse, or nesses, including those that the police other psychiatric disorders, those records have already obtained statements from. If your defense involves proof of "Bat can be particularly helpful because Do notstop withobvious witnesses, like tered WomanSyndrome,"and the effects patients in drug, alcohol and psychiatric people whowitnessedthe killing or those of the syndrome on your client’s percep treatment programs confess their who heard gun shots. Talk to employers, don of the necessity to act in self protec darkest secrets to the health profes co-workers, friends, family, enemies, Lion, you obviously need a well qualified sionals- who promptly record them in neighbors, fellow church members, club expert to testify for the defense. You the patient’s records. members, teachers, and anyoneelse who should select an expert who is honest, knows anything about either your client well-qualified,intelligent, articulate, and How big was he? Did he play football in or the person she killed. Obviously, you thoroughly familiar with Battered high school or college? Did he take arelooking for people with good things WomanSyndrome. Isuggest Dr. Lenore karate lessons? Did he participate in any to sayabout your client and bad things to E. Walker, of Denver, Colorado. other contact sports? Did he have a say about the corpse, reputation for being tough? There are a number of things, in your relationship withyour expertwitnesses 4. FORENSIC EVIDENCE Arethere any photographs of him avail that you must do in order to fulfill your able in which he looks mean, angry, or Forensic or scientific evidence is vital in responsibilities: dangerous? Any photos of him with a homicide trial. Do notaccept the results guns, knives, or other weapons? Was he of the state’s "crime scene search." A Dozen Pointers On Deallng With ever in the military? Was he trained to Police officers often overlook vital Experts kill? Get his records. Find out. evidence, especially evidence which is 1 Promptly comply with "Rule 1" vital to the defense. If you do not know If your client was aware of the incidents "Get your money in front." Rule 1 discovered through medicalrecords and enough about forensic science or case applies to your experts, as well as to you. the information is admis investigation, hire someone to assist you. Recognize that your experts are profes other records, Retired police detectives and F.B.L sible because it helps to establish your sionals and that they earn their agents area good source of help. If pos livelihoods by doing what they do. client’s subjective state of mind. see, sible, observe-the police Dis coses cited atpage 4, infra. Ifyour client crime scene in cuss their fee and payment requirements vestigation and make careful notes. You candidly at the outset. Comply with the was not aware of some of the incidents, may evenbe able make suggestions to you may still be able to get these details to requirements promptly to avoid tension policeinvestigators which will help them and conflict within the defense team. admitted. Carefully examine the classic find and preserve evidence helpful to the exceptions to the rules prohibiting hear say. Is the evidence you want to admit an defense. When the police are finished 2 Respect your expert’s Integrity. against interest?" Prior and havereleasedthe "homicide scene," Makeit clear from the beginning that all "admission get your own investigators there imme you are interested in is the truth and sworn testhnony? Are there indicia of diately, before anything is further honest reliabilitythat will help you to get around judgements and opinionsfrom the changed, to re-investigate for evidence expert. Do not ask anyone to testify to a hearsay objection? You may be able to and clues that the police may have over- factsor opinions that are true. admit otherwise inadmissible informa not If upon

August 1989/the Advocate 42 competent evaluation, the expert tells you will be reason-ably secure that you your own expert at trial. you that she cannot support your theory have not openedPandora’s Box. of the case, look for anothertheory or, if 10 Ask your expert for suggestions you have cause to doubt the qualifica 6 Meet, in person, with your expert. about the questions you should pose to ions of the first expert, look for another Do this in advanceof trial, as many times the prosecution’s expertsat trial.Your expert. as necessary, until you thoroughlywaler- expert, obviously, knows her subject stand what the expert is prepared to say matter much better than you. She will 3 Get the expert Involved as soon as and why. Do notbe afraid to ask "stupid be invaluable in helping you prepare for possibleafter the homicide. Symptoms questions"or questions that will disclose cross examination of the opposit-lon’s ofstress and emotionaltrauma subside or your ignorance of the witness’ field of expertwitnesses. are repressed over time. The earlier your expertise. There is no disgrace in not expert becomes involved, the more ac knowing everything from the outset. The 11 Take good care of the expert If curate the impressions and conclusions time and place to become familliaiwith the expert is flying in for trial, have of the expert will be. Focus your expert the expert’s fieldis duringpre-trialmeet someone at the airport to meet her. See on what factors you want explored. If ings and consultation. Stupid questions to hotel accommodations. Have some you believe that your client did what she and lack of full appreciation of the one to take her to the courthouse and to did because she suffered from Battered expert’s fieldat trial, on the other hand, the courtroom or witness waiting area. Woman Syndrome, say so. Have a clear is unforgivable. Thus you must be will Don’t give your expert the burden of understandingof the issuesthat you seek ing to ask questions, read reference wonying about anything except what opinions about. Conversely, always ask works,and do whatever else is necessary she’s therefor, testifying effectively for the expert what other opinions or obser to be completely organized and your client. vations she can offer concerning your knowledgeable before you set foot in the 12 Do not compete with your own client. In response to such open ended courtroom. expert If you have a fantastic defense inquiries in private consultation with your expert, you will almost always get 7 Devote adequate time to prepara expert witness give her the floor at trial tion foryour emminstion ottheexpert and let herperform. Let your expertwit additional helpful information that you the attention. Give did not think to ask for. at trial.Remember that, at trial,you will ness dominate jury’s have a very limited amount of time in good expertwitnesses on yourside open- 4 Educate yourself. Ask your expert which tomake thejuryunderstand. Thus, ended questions that allow them to lec for alist of suggested readingmaterial so you must give careful consideration to ture and teach thejury. Go sit down in an that you will fully understand the facts, howto succinctly presentinformation so inconspicuous place when your witness theories, research, and other supporting that jurors will fully understand. Work is "on aroll sothat thejury wilifocuson data about which the expert will testify. with your expert to develop her direct her. Do notcompete withyour expert for Study the materials. Ask questions if examination outline. the jury’s attention." there is anything you don’t understand. You must achievea high level of under Atechniquethatloftenusetopreparefor When cross examining the prose explaining complex matters at trial is cution’s experts, do just the opposite. standing of the theories, facts, opinions, command and supporting data about which the ex explaining the materials to my children. Keep of the action. Ask lead pert will testify. Then, Iaskthemtoexplainitbacktome. ing questions that do not give the If Ican make a6or8 year old child opposition’s experts any opportunity to 5 Supply your expert with copies of understand the material, then I feel con "sell" their position. documents. Send investigative reports, fident that I can convey it tojurors, even witness statements, medical and mental considering time limitations. C. JURY SELECTION health records pertaining to you client data and study them 8 SolicIt your expert’s advice as to Obtain jury sheets and the deceased, and other investigative well in advance of trial. Pay close atten materials which may be helpful to the desirable juror profiles. What kinds of people, in her experience, do you want tion to each juror’s family profile to expertin understanding all the dynamics determinewhether thejuror ismore like and facts relevant to the case. Index the on the jury? Why? Listen. Learn. Be cause your expert has been through lyto identify withyour client or withthe documents to make it easy forthe expert decedent. For example, if a juror is the to find specific infonnation and to make similar trials, shewillhave a goodunder standing what kind father mother of daughters, especially large amounts of information more "di of of people will those about the same age as your client, gestible." Ask, from timeto time, if there make good jurors, receptive to your theory of the case. he is more likely to identify with your is anything else the expert wants. If so, client than the decedent. During the getthe expertwhat she wantspromptly. 9 SolIcit your expert’s advice about courseof the trial, you want the juror to the questions that you will ask her in see his own daughter when he looks at One note of caution: the prosecution is the courtroom. The expert has probably your client. You want to leave the juror probably entitled to inspect any informa testified in similar cases and has the thinking, "If someone did that to my. tion that your expertrelied upon inreach benefit of that experience. She can daughter, he’d deserve to be shot." ing his opinions. Thus, some care may usually give you, beyond standard qualifications questions, a good idea of Jury data sheets contain a wealth ofuse have to be exercised in screening infor ful information. Wehave group meetings mation that you supply to the expert. In how to take her to the central issues of the case. If there are other avenues of at which we study jury data sheets, your pretrialpreparationconferencewith develop "ideal juror profiles," and the expert, discuss what she will bring inquiry that you think you want to ex plore at trial, ask the questions of the numerically rank each member of the with her when she testifies. Have the panel before trial. Numerical rating is expert bring only those materials that she expert during a pre-trial consultation. Sometimes you discover that there are kept simple; a "1" is the best possible did, in fact, rely upon. Jf the expert tes juror, who fits our ideal juror profile." A tifies that she relied only upon those questions that youdon’t want toask. It is better to fmd that out in advance than to "" is a hangman waiting to get his rope materials that she brought to trial, along around the Defendant’s neck. "2’s", with her own testing and observations, have your boat sunk by a torpedo from

August 1989/the Advocate 43 "3’s", and "4’s" are in between. These keepingher. If shehas been the victim of questions in the jury’s presence or to ratings area very useful tool at trial when serious physical abuse, consider keeping "confer" very much. Those things con you have to make decisions about perem her. If, before trial, you can discern from vey that there is something your client ptory challenges in a very limited a- data sheets that a potential female juror didn’t tell you; that there is something mount of time. is divorced e.g. children with different that you don’t understand and need to surname check the clerk’s records for have clarified. Avoid conveying in Educatejurors during voir dire and warm indications of abuse, such as restraining security. Promote belief by displaying them up to your theoryof thecase before orders. confidence. Think how this principle re the evidence starts. With a well planned lates to the next one. voir dire examination, you can have D. COURTROOM INTERACTION jurors on your side from the outset of a WiTh YOUR CLIENT A good way to show the jury that you trial. We will supply a copy of our voir respect your client’s intelligence and dire outline for Commonwealth v. Har A primary goal throughout the trial is to counsel is to ask her for help from thne meling, upon request to our office. It is a makejurors like andempathize withyour to time. Before "passing" a witness at the good example of advocacy during the client and to applaud the fact that her conclusion of your examination for ex jury selection process. abuser is dead. When the whole story of ample, ask her within the presence and the events that led up to the homicide is hearing of the jury if there is anything Have someone take notes of thingsjurors told, you want jurors to think, "I would that you’ve forgotten to ask the witness. say in response to voir dire questions. have done the same thing." A juror will Then, huddle with your client for a few You can often quote jurors’ comments notcondemn your client for doing some moments to confer. Sometimes she will during closing argument. Forexample, if thing that shewouldhave done,herself, mention things you have indeed forgot a juror says during juiy selection that a in the same circumstances. Jurors will, ten and help you do a better job. Other woman,generally, could notbe expected likewise, notcondemn your client if they times, she might suggest a subject you to defend herself against a man without identify your client with their own avoided intentionally. Sometimes she a weapon, or that people have a right to daughters and envision their daughters won’t tell you anything at all. It really keep guns around for self protection, doing what your client did undersimilar does notmatter. Whatdoes matter is that those areopinions to quoteback to them circumstances. your actions tell the jury that the defen at closing argument time. Whether the dant is intelligent and has your respect juror recognizes that you are quoting Before trial, work with your client, if You may or may not have additional him/her is unimportant. You will be cer necessary, to soften her appearance. questions after conferring. If you do, ask tain that your argument reflects the Have herlookas "feminine"and "defen them. If not, say "Thankyou; That’s all," jurors’ beliefs and values. seless" as possible. If you don’t know and sit down. much about make-up and clothing, ask Gun ownersmake greatjurors in all self- your wife, a female lawyer, your secre Before trial, explain to your client that defense cases. Gun owners, by defmi tary, or someone whose opinion about you and she will have such conferences don, are people whobelieve a citizen has such things you respect. I couldn’t dress during trial. Be sure your client knows a right to kill in self-defense. a salad, so my litigation assistants and that theremay be tactical reasonsfornot secretaries sometimes work withfemale pursuing every point or suggestion she As a generalization, at least,I prefer male clients on clothing, make-up, behavior, makes during in-trial conferences. jurors when defending a female defen posture, and other things. dant. Men, I think, have protective im Refertoyour client byname. Do notrefer pulses towardwomen. Women tend tobe Make certainthejuiy knows that you like to her as "the defendant" or "my client," more negatively judgmental toward and accept your client Use non-verbal or anything else that leaves her without other women. Women who have never communication. Casual, non-obvious personhood or identity. experienced life withan abusivemale are touching during the trial tells jurors that more likely to think a battered woman the citizen-accused is a worthwhile per Except in extraordinary instances, the must have done something to "deserve" son. Don’t let your client sit abandoned, defendant should testify. If a defendant abuse. during recesses, before, or after court is innocent, jurors expect them to getup sessions. and say so. Your client usually should, Public consciousness has been raised in testifyfirsr in the defensecaseto prevent recent years about spouse abuse. In Convey the messagethat you are incourt the argument,"She listened to everyone working with the jury, give them the to vindicate an innocent person. Have else’s testimony, then made hers fit." opportunity to prove their sensitivity to your client sit up straight and "look in Calling your client first also helps the battered women by acquitting your nocent"Look at your client from timeto jury understand the thedefense is "fight client. In picking jurors, avoid people time during trial If she/he begins "look ing fair." who might not be sympathetic to the ing guilty." gently remind her/him to issue of spouse abuse. Older men and straighten up and look innocent. The E. GENERAL TRIAL those from particularly "macho" ethnic "lookof innocence" is solemn, serious, TECHNIQUES cultures may harbor the attitude that a and confident without being smug. In manhasarightiobeathis wife. nocence usually sits up reasonably 1. COURTROOM straight, pays attention, does not crack "ATMOSPHERE" Middle-agedmen withdaughtersofmar jokes, chew gum, or chain-smoke riageable age tendto be more sensitive to cigarettes within view of the jury during Thefeeling of a courtroomshould be like battered women. Men in their twenties breaks. that of a church. Within a courtroom, may not yet be of an age to have thought TruthandJusticearethegods. Ifyou much about the problem; often they have Most interactions with your client in the make the trial a mission to "pursue the not entered into long-term relationships presence of the jury should be those Truth and do Justice," the jury will fol with women. meant to comfort and reassure to her. It low you. "Pursue the Truth and do Jus is good to appear as her champion and tice" are usually the very first and very If a potentialjuror is a feminist, consider protector. Try to avoid asking your client last words that I say to jurors. If defense

August 1989/the Advocate44 counsel is the one who keeps talking the courtroom, however. The control I Invite Spectators. Encourage attractive, about truth and justice, then by the end refer to is control of the issues, the middle class looking people who care of the trial jurors will identify truth and evidence, the instructions, and the about and who are rootingfor the defen justice withthe defense. In closing argu rulings on objections and issues of law. dant, to sit in the spectator section of the ment, of course, you restate the truth - court every day. Priests or ministers, The batterer needed to be killed in this Controlling the courtroom as I suggest, depending on demographics of the trial requires meticulous preparation situation - and you define justice as and hard location, are good to have among your ACQUiTTAL wart Know the law so that when you rooters. Talk to your supporters from make objections, they are sustained. time to time during breaks sothere is no 2.. CROSS OF POLICE AND Don’t make objections thatyou know are mistake about whose side all thosenice OTHER GOVERNMENT not going to be sustained unless there is people are on. WiTNESSES a compelling legal or tactical reason to doso. Open and a Your Case withGood, Don’t make personal attacks on police Strong Witnesses. Remember the prin officers or try to make them looklike evil Think about how you intend to get your ciplesof "primacy"and "recency."With people. Jurors, generally, like and res proof into evidence and be prepared to these principles in mind, decide when, pect police officers. If you must attacka citespecific law that compels admission within the defense case, the defendant police officer on cross-exam do it, but ofthose things in your evidence on which will testify. Do you wantthe jury to begin you should usually let the officer off the you anticipate objection. deliberations with your client’s words hook alittle bitby blaming inexperience, Control of your trials is cumulative. As still ringing in their ears, or do you want poor training, too much enthusiasm, or you develop a reputation among the them to have time to forget your client’s something equally forgivable. judges before whomyou practice for in demeanor and words?Likewise, remem tegrity, diligence, skill, and hard waric it berthe principles ofprimacyand recency Most police officers, lab technicians, when you are planning your examination medical examiners,and other law enfor becomes easier togain control. If ajudge knows that when you make a legal argu of witness. Start and finish with the cement professionals are honest people. points thatyouwant thejurors to reman Ask the right questions and they will ment, it is backed up by good and ac curate research, or that whenyoutellhim ber.Repetitionhelps,too.You canusual usually give the right answers. A few lyhave a witness repeat solid, important examples we have encountered in trials: that you are going to provespecific facts, you will, the court will give you much points several times before you draw an A decedent had a rotten reputation for objection of "asked and answered." violence in the community and the inves more latitude totry cases your way. tigating officer was aware of it. When Wave The Flag. Don’t leave the flag for asked about the decedent’sreputationfor 4. OTHER SUGGESTIONS the prosecutor to wave. Do it yourself. violence during cross-exam, the police Be nice and courteous to almost Talk about truth and justice. Present as officerhesitated and looked veryuncom everyone- bailiff, judge, jurors, spec sacrosanct the rules by which crimin1 fortable. After a very dramaticpause that tators, witnesses, and even the cases are tried. I like to commitjurors to served to emphasize the issue, the officer prosecutor. If jurors like you, they are "pursuethe truth and do justice." With a admitted that the decedent had a "ter likely do good self defense case, that mission rible" reputation for violence and wait more to what you want them to Statement works well. on,toexplainhowawfulitwasingraphic do. Don’t act like a sycophant; just be a naturally nice person. The only people Play To Win. Prepare your cases terms that helped lead to acquittal. In you should notbe courteousornice manycases, state police forensicexperts to are thoroughly and try them with all the those whom you catch in a lie or decep dedication, diligence, skill, and tenacity have admitted that their testimony was tion. Youcan emulsify obvious liarsand absolutely meaningless in determining of which you are capable. A "winner" cheats without concern about jury disap does not mean an "easy" case. To the whether shots were fired intentionally, proval. accidentally or in self-defense. In the contrary, most self-defense cases and all Harmeling case, the medical examiner Call the Prosecutor by Name. Let the "Battered Woman" self-defense cases actually reenacted the defendant’s ac are difficult, time consuming, complex, jury know that you and she are friends. and countof the shooting with defense coun Casual social touches exchanged with fierce battles. Preparation, hard sel in open court, then went on to admit the prosecutors help defuse the "good work understanding the law and theories that the defendant’s account of the incid of the case, and effective presentation guys" against the "bad guys" impres will all ent was fully consistent with all of the sions that prosecutors try to convey. A maximize your chances and, scientific, physical, and forensic evi more importantly, the chances of the typical trial will give you many spon citizen dence. taneous moments when you can convey whose cause you champion, of a the feeling that you and the prosecutor successful outcome - ACQU1TFAL! 3. CONTROL THE COURTROOM really like one another. If the prosecutor needs a pen, marker, or newsprint pad, Frame the issues from the outset. Voir loan him yours. If she drops her notes, ROBERT E. SANDERS Dire and opening statement arethe times help pick them up. If the prosecutor is 508 Greenup Street at which the theme and tone of the trial having trouble finding something, Covington, Kentucky41011 are set. It is the prosecutor’s job press help to Eventually, he’ll find it anyway. 606491-3000 the theme, "locking up a criminaL" It is your job to make the theme, "vindicating Good Prosecutors do Just the Op RobSanders is a 1972 graduate ofthe Univer. an innocent citizen-accused." If you are posite. They stay distant from and cool sit., ofCincinnati Law SchooL He is a member in control of the courtroom, it will feel toward the defendant and the defense oIL CDL HerepresentedHeidiHannsilnghi natural and proper for you to suggest a 1986 tiial using thebattered woman defense. counseL Their goal is to send a message LRVNe Walker testified as an expert at that appropriatetimes for breaks, lunch, and tothe jury that thedefendant and defense friaL end of day recesses. Do not mistake as counsel are "the enemy," not worthy of king for a lunch break with controlling common decency or courtesy.

August 1989/the Advocate 45 PRIVATELY-RETAINED PROSECUTORS KACDL Files Amicus Opposing Private Prosecutors

GaryJohnson

PROCEDURAL HISTORY cludes attorneys whose duties involve to be filed. the prosecution of criminal cases. -OrrSeptember9, 1988, the Ky. Court of KACDL promotes study and research in THE ISSUES RAISED Appeals ruled that participation in the field of criminal law, disseminates criminal prosecutions by privately- information by lecture,seminar and pub The formal argument made by the As retained prosecutors violated the federal lication for the advancement of know sociation is as follows: due process clause. Hubbard v. Corn ledge in the field of criminal defense ,nonwealth, 35 K.LS. 12, p. 2-3, October This court should forbid privately- practice, seeks to promote the proper ad retained prosecutors in criminal 7, 1988, opinion rendered 9/9/88. The ministration of criminal justice through Supreme Court of Ky. granted discre cases by executing its supervisory outthe Commonwealth, and seeks to en- powers, drawing a bright line tionary review of this case on that issue courage the integrity and independence and one other; the case waibriefed, and prohibiting their participation inside and expertise of defense lawyers in Ky. the rail in criminal proceedings. The on June 2, 1989, was argued before the There are over200 KACDL members. Supremes Both parties argued whether practiceof allowing privately-retain the United States Supreme Court’s In Marchof 1989, the Board ofDirectors ed prosecutors presents an inherent decision in Young v. UnitedStates, exrel, of the KACDL passed a resolution, in conflict of interest, violates the due Vuitton El Fils S.A., 481 U.S._., 107 response to the Court of Appeals’ decis process requirements of the Ken SQ. 2124, 95L.Ed.247401987,reied ion inHubbard, condemning the practice tucky Constitution, and is contrary to upon by the Ky. Court of Appeals in its of privately-retained prosecutors in public policy as expressed by the decision in Hubbard, could be extended criminal cases. The board called for the legislature in the Unified and In to prohibit privately-retained prosecut filing of an arnicus curiae brief. tegrated Prosecutor System and by ors from participating in criminal cases this Court’s Rules ofCriminal Proce in Ky. The Attorney General’s Office It is significant to note that some of the dure. members of the Association, including argued that Young was a decision based SUPERVISORY POWERS upon supervisory powers, and counsel this writer, have in the past, perfonned forHubbardargued that a fair readingof the services of privately-retained prose Professor Dahlberg argues thatthe court Young and later cases extends the due cutors and have made significant fees has inherent supervisory control of the process prohibition to this antiquated from that activity. The positionsadopted lower courts. Ky. Constitution, Section procedure inKy. by the association and asserted in the llO2a. The Court has the primary arnicus brief, could actuallytake money duty to assure orderly and effective ad At the oral argument, several justices out of these individuals pockets. They ministration of justice, and has the in questioned whether or not there was a nevertheless felt that the ethical debate is herent power to do what is reasonably Ky. constitutional issue involved in the now over- it is simply unethical, and necessary to obtain that goal. Ex Parte case, and whether or not the Supreme creates the appearance of impropriety, Farley, Ky.,570 S.W.2d 6171978. The Court had the supervisorypowers to pro for privately-retained attorneys to con court has the authority to render enforce hibit the use of privately-retained duct proceedings in criminal cases. To able opinions on ethical questions arising prosecutor’s in criminal cases. Otherjus their credit, the members of the associa from the roles of prosecutors incriminal tices questioned whether there was a fun tion have gone on record in favor of cases. In Re Kenton CountyBarAssocia dainental conflictof interest fora lawyer making the financialsacrifice in order to tion, 314 Ky. 664, 236 S.W.2d 906 to take money from a private individual improve the delivery of criminal justice 1951. In Re Ke,uucky BarAssociation, and then ostensibly represent the Com to all the citizens of the Commonwealth. ArnendedAdvisorj Opinion E-291, Ken monwealth. Most of these issues had not tucky County Attorneys Association v. been addressed in the briefs before either Kentucky Bar Association, Ky., 710 the Ky. Court of Appeals or the Ky. Frank E.Haddad Jr., president of Supreme Court. KACDL, and James Dalilberg, KACDL S.W.2d 8521986. member, and teacher at the Depariment ofGovernment, Morehead State Univer INHERENT! IRRECONCILABLE KACDL ASKS TO INTERVENE CONFLICT OFINTEREST sity, volunteered to prepare and file the The Ky. Association of Criminal brief. They filed a Motion for Leave to The brief for the KACDL argues that, DefenseLawyers KACDL was formed file the arnicus curiae brief on June 15, historically, public prosecutors have a October, 1986, as an educational, charit 1989, in the Ky. Supreme Court. and greater duty to insure fairness than does able, and scientific organization. It’s tendered copies of the brief. The Attor a privatepractitioner in a mere civilcase. membership is restriced to those attor ney General’s Office has filed a response Burgerv. United States, 295 U.S.78,88, neys in Ky. who are actively engaged in requesting that the brief notbe permitted 79L.Ed. 13, 14,55S.Ct. 629 1935.Ky. the defense of criminal cases and cx-

August1989! the Advocate 46 has long-recognized this increased Integrated Prosecutor’s System allows of the law. Kentucky Milk Marketing v. responsibility by public prosecutors. the Attorney General to replace Com Kroger, Ky., 691 S.W.2d 893 1985.". Goffv. Commonwealth, 241 Ky. 428,44 monwealths and County Attorneys with .[W]hatever is essentially unjust and S.W.2d 306, 308 1931. other Commonwealths and County At unequal or exceeds a reasonable and torneys from other jurisdictions, where legitimate interest of the people. . ." is The ABA Code of Professional Respon the original governmentprosecutor has a barred by Ky.’s own constitutional sibility, adopted by the Ky Supreme conflict or cannot serve; the Attorney guarantee of due process of law.Id. Court, Rules of Supreme Court, 3.130- General may appoint an Assistant Attor.: 1, has likewise held that publicly ney General to handle a particular case. The Association argued that although the chosen prosecutors have a responsibility In only one instance under Chapter 15 is Court is not free to impose a greatá not shared by private counseL EC 7-13. the use of a private attorney authorized, federal due process right than does the The inherent conflict of interest for a and that is where a local prosecutor has United States Supreme Court, the Com privately-retained lawyer who is hired to been indicted for a felony, and must be monwealth is free, as a matter of its own prosecute a 4minl case arises because replaced. In that particular case and in law, toimpose greaterprotections for its he has a pecuniary interest in the out that case only,the Attorney General may citizens. Oregon v. Hass, 420 U.S. 714, come of the criminal case. Where his fee appoint a private attorney to act as the 95 S.Ct. 1212,43 L.Ed.2d 5701975. comes from an individual client or group prosecutor for that jurisdiction. KRS of clients, either as a contingent fee or a 15.734. CALL FOR A BRIGHT LINE flat rate, rather than being paid by the government, the private prosecutor’s KACDL argues that KRS Chapter 15 Professor Dahlberg argues that the loyalties necessarily conflict. EC5-14. providesan adequate mechanism for ag debate about the use of privately grieved citizens to affect the quality of retainedprosecutors has alwaysrevolved Upon whose behalf does the privately- criminal prosecutions in their jurisdic around the question of whether the retained prosecutor make decisions in a tion. The briefpoints out that the Attor elected or appointed official retains criminal case? If he makes those decis ney General may intervene or supersede "control" of the case; the elected ions on behalf of the Commonwealth, he a local prosecutor when requested to do prosecutor guarantees that prosecutorial may be forced to act in a manner that is so by five members of the Prosecutor’s decisions are made by a "disinterested" adverse to the interest of his paying Advisory Counsel That counsel is com representative. The previous decisions cient& 1.1 he acts only in the interest of posed of 9 members, all appointed by an by the Ky. courts indicatethat the use of his paying clients, as he is required to do, elected official, the governor, and 2 of privately-retained prosecutors is tolerat hemay perform actions orfailto actina whom are non-lawyer citizen appoint ed because a locally elected official mannerconsistent withthe interest of the ments. Additionally, KRS Chapter "retains control" Commonwealth. inRe Kentucky BarAs 15.200 providesthat the attorney general This is a fiction. sociation, supra. Cantrell v. Common may intervene in local criminal prosecu wealth, Va., 329 S.E.2d 22 1985; tions when requested to do so by a local KACDL argues that the party standing Ganger v. Payton, 379 F.2d 709 1967. mayor, a local court, a local grand jury, before the court questioning witnesses, The inherent conflict of interest cannot a local sheriff, the majority of any city jurors, or other counsel, is the person be avoided. Polo Fashion, inc. v. Stock legislative body, or the governor. who is in control of the litigation. Since Bers Int’l., Inc., 760 F.2d. 698, 705 the case of Stumbo v. Sebold, 704 F.2d 6th Cir. 1985, cert. denied, 107 S.Ct. Sufficient protection for citizens who 910,9116th Cir. 1983, there has been 2480, June 1, 1987. fear that a local prosecutor may not little doubt that the actual practice of proceedwitha case asvigorously aswar using privately-retained prosecutors Since the Association filed its brief, the ranted is provided by KRS Chapter 15. SupremeCourt has temporarilysuspend shifts control to the party addressing the There are adequate remedies in place to participants in the proceedings. In that ed a prosecuting attorney for participat ensure that criminal proceedings are ing in private litigation arising from the case, the 6thCircuit reversed the convic prosecuted withvigor, withfairness, and tion not becausethe private prosecutor’s same incident that brought about the withall due diligence. Privately-retained criminal charges. See Kentucky BarAs conduct was per se a violation of due prosecutors represent an antiquated process, but that it was infactaviolation. sociationv. Lovelace, 36KLS 7,6130/89, mechanism, and they are no longer p.7, decided June 29, 1989. One cannot read the opinion and argue needed. that the locally elected prosecutor was in PROSECUTIONS BY ELECTED Clearly, the legislative intent, and thus control, considering the extent of the OR APPOINTED GOVERNMENT the public policy, in Ky. is to place egregiousmisconduct in that case. OFFICIALS ONLY crin,inal prosecutions in the exclusive Additionally, the Association argues that hands of elected government officials or KRS 15.7331a, when read in con RCr 1.06b defines "Attorney for the appointed assistants. Commonwealth" so as to exclude their Privately- junction with RCr 1.06b, requires a retained prosecutors are not con conclusion that "criminal proceedings" privately-retained prosecutors. Further templated. more, Ky. Constitution, Sections 93,97, are to be conducted only by elected or make the Attorney General and Com KY’S CONSTITUTIONAL RE appointed governmentofficials. If it’s in monwealth and County Attorneys QUIREMENT OF DUE PROCESS court, it’s a "proceeding." If it’s a government officials. Their duties are criminal "proceeding", it must be con prescribed by law. Id., Section 93. KRS. "Absolute and arbitrary power over the ducted by a government official, not a Chapter 15 mandates that the Attorney lives, liberty, and property of free men privately-retained attorney. General is the chief law enforcement of exists nowhere in a republic, not even in of Ky. the largest majority." Ky. Constitution, The Association argues that no rule ficer of the Commonwealth should be imposed by this Court that Broad powers are given to the Attorney 2. The Ky. Supreme Court has held that would prohibit a locally elected General under that statutory scheme to this provision is broad enough to prosecutorfrom conferring or consulting control and influence the nature of embrace the traditional conceptsof both with a privately-retained attorney out- criminal prosecutions. This Unified and due process of law and equal protection

August 1989/the Advocate 47 side ofthe actualcouriroomproceedings. Of course a prosecuting attorney should ASK CORRECTIONS be allowed to confer with anyone they choose in preparing their case. Preparing is different from presenting. When it comes to presenting the casein any court TO CORRECTIONS: My client proceeding, the Association argues that served a continuous 10 months in the a bright line, drawn at the rail, should county jail before being transferred to prohibit the participation of private Corrections. After his sentence was cal prosecutors. culated by Offender Records he was credited with only 2 months jail custody WHY IS THIS IMPORTANT? credit. We may not win this issue inHubbard, TO READER: A review of this case but we will win it some day. The move reveals that although your client was not ment in the federal courts and all across received by Corrections until 10 months the country is to investprosecutorial dis after his arrest, his prison sentence was cretion only in the hands of government calculated as starting torunon the date officials. Ky.’s retention of this ques of his fmal sentencing which was 8 tionable ethical procedure is a throwback months prior to his transfer to Correc to an earlier time. In reality, many tions.The 2 months creditforjail custody governmental prosecutors would is forjail time servedprior tohis sentenc probably welcome a rule that would ing date. tamed good behavior in jail. Is this true? allow them to confer with any attorney If so, how can my client apply for the retained by a victim’s family, but at the TO CORRECTIONS: My client in Meritorious Good Time? same time would allowthem exclusively forms me that his parole eligibility date to conduct and control the actual is incorrect. He says his good time al TO READER: There are two types of courtroom proceedings as they see fit, in lowance has notbeensubtracted from his Good Time which an inmate can receive. the interest ofboththe accused and other parole eligibility date. They are: parties. Although neither the TO READER: Good time allowance is Prosecutor’s Advisory Council nor the 1 Statutory [KRS 197.0451] - Any Commonwealth’s Attorney Association not credited toward parole eligibility. person convicted and sentenced to a state have responded to the decision in Hub Parole eligibility is computed by adding penal institution may receive a credit on bard, I suspect that a majority of their the amount of time to be served as his sentence of 10 days for each month members might agree with thebrieffiled provided by the applicable Parole Board served. This good time allowance is not by the Association. Regulation to the final sentencing date, on the actual sentence length, but on and then subtracting there from the actual timeserved, which amounts to 1/4 This case is importantfor another reason. amount ofjail custody credit. Good time of the total sentence. For bookkeeping Sincethe Association was formed, this is is subtracted from the total sentence purposes statutory good time is credited the first time they have sought leave to length. upon admission to a state penal institu ifie an amicus brief. It won’t be the last. tion or uponsentence computationwhich The Associationis growing, and is taking TO CORRECTIONS: My client has is done immediately prior to one meeting an increasingly aggressive role in issues been in the county jail a total of 9 the Parole Board. that relate to criminal defense. At the months.He was convicted 6 months ago. It is my understanding he can receive recent Kentucky Bar Association, 2 MerItorious [KRS 197.0453] - In several members spoke on proposed Meritorious Good Time, if he has main- addition to statutory good timeyou may criminal rules changes. Legislative sug also be consideredfor5 days meritorious gestions and educational activities for good time per month, provided you do the upcoming legislative session are nothaveforfeited good timeoutstanding. being planned by committees within the You do nothave to apply for meritorious association. good time as a recommendation will automatically be sent to the jailer and Thisfirsteffort byKACDL is a good one, parole officer after you meet the Parole and we can look forward to further ad Board. The award of meritorious good vocacyby this group. time is based on your behavior while in jail. After you receive an award of We should encourage them. meritorious good time the first time, you GARY E. JOHNSON will automatically be considered again Assistant Public Advocate every 90 days. Every time you receivean Appeals Division award of meritorious goodtime, you will receive a memo from the Corrections Frankfort Cabinet informing you of your new con Copies of the a,nicus brief nay be ob ditional release date. You should allow tained by contacting Linda DeBoard, approximately 4 weeks after you meet Kentucky Association of Criminal the Parole Board before you can expect Defense Lawyers, P. 0. Box 23593, to receive the memo informing you of Louisville, Kentucky 40223. Copies of your new conditional release date. the original briefs in Hubbard can be obtained by contacting DPA.

August 1989/ the Advocate48 FEDERAL HABEAS CORPUS The Decline ofthe Great Writ Continues with Teague v. Lane

Randy Wheeler During the last decade an assault has Specifically, theCourthasheightenedits conviction became final"1 would notbe been mounted from numerous quarters unwillingness to excuse procedural announced or applied retroactively tin- on the availability and scope of habeas defaults committed during state litiga less the new rule made the conduct for corpus review of state criminal convic tion by limiting the ways in which the which the petitioner was convicted no tions under 28 U.S.C. Section 2254. A litigant canshow "cause" for the default longer criminal or required the obser number of reasons have been posited for and by providing higher standards that vance offairness protections "implicit in this assault, but, generally, the goal has must be met in order to show the the concept of ordered liberty", supply been to give the states more autonomy prejudice thai has resulted from errors ing a "bedrock procedural element tin and finality when dealing with CrimbiRl alleged. SeeMurray v. Carrier, 477 U.s. derlying the accuracy of the ajudication" cases. This trend is consistent with the 478, 488, 106 S.Ct. 2639, 26461986; a testJustices Brennan and Marshall in decline of federalism initiated primarily Amadeo v. Zant, 486 U.S._.., 108 S.Ct. dissent equated with one of "actual in during the presidency ofRonaldReagan. 1771 1988. Additionally, the "fun nocence". Teague, supra, 109 S,Ct. at More practically, as Chief Justice damental miscarriage of justice" excep 1069 -78.Ominously,thepluralitynoted Rehnquist indicated during a Felruaiy tion toprocedural defaults has now been that it was "unlikelythatmanysuch com speech on the state of the federal equated to an error which would lead the ponents of basic due process haveyetto judiciary to the American Bar Associa Court to believe that the litigant may emerge." Id., 1077. The plurality ex tion, the federalcourt system is allegedly have been convicted despite his "actual plicitly concluded that habeas corpus so overloaded that it has no choice butto innocence." See Dugger v. Adams, 489 could no longer be used to developnew cut back in some areas oflitigation. Un U.S._, 109 S.Ct. 1211, 1218, n. 6 constitutional procedures unless the fortunately, criminal defendants, who, 1989. The Courthas also gotten tough aforementioned exceptions were ap because they are usually poor and be on litigants it perceives have abused the plicable and the rule would benefit all cause of the nature of their involvement writ ofhabeas corpus. Indeed, during the defendants on collateral review retroac withthe systemhave little politicalclout, term of Court just ended the Court told tively. Id., 1078. are taking much of the brunt of the ensu onelitigant whohad filed numerous peti ing changes. tions previously never to file again, and It is significant to note that Teague’s instructed the clerk not to accept his retroactivity limitation was not simply The attempts to restrict habeas corpus filings. In Re McDonald, 489 U.S. -, restricted to cases in which the Court is litigation have intensified recently. 109 S.Ct. 993 1989. asked to announce a new rule, in which Senator Bob Graham D.FL introduced case retroactivity will be a threshold a bill in Congress in January, S.271, Perhaps the greatest blow to habeas question which must be resolved before which would limit habeas availability by review was struck by the Supreme Court the rule itself can be articulated, a proce preventing certain claims which werenot during the 1989 term in Teague v. Lane, dure which Justices Stevens and Black raised during state proceedings from 489 U.S....., 109 S.Ct. 1060 1989. In munconsidered to be"neither logicalnor being entertained, establishingaoneyear Teague a majority of the Court held that prudent." Penty v. Lynaugh, 45 CrL period of limitation and affording state Batson v. Kentucky, 476 U.S. 79, 106 3188, 3200 6-28-89. Teague also ap courtfactual determinations averybroad S.Ct. 1712 1986 which held that plies to cases in which the petitioner is presumption of correctness. Similar peremptory challengescannotbe used in requesting that the Court apply a new restrictions were also included in Presi a racially discriminatory manner could rule which has developedin anothercase dentGeorge Bush’s recently announced not be applied because the petitioner’s subsequent to the finality of the crime package, S. 1225. Former Sup conviction was final at the time Batson petitioner’s conviction. In this situation reme Court Justice Lewis Powell is also was decided, citing Allen v. Hardy, 478 the threshhold question is whether the heading an Ad Hoc Cwittee of the U.S. 255, 106 S.Ct. 2878 1986. But a ruling on which the petitioner seeks to JudicialConference of the United States plurality of the Court, including Chief rely is simply an application of settled on Federal Habeas Corpus Review in Justice Rehnquist andJustices O’Connor precedent decided before his conviction Capital Cases, which has been formed the author, Scalia, and Kennedy went became final. See Yates v. Aiken, specifically to examine the "abuses" of further and, in relation to a claim that the _U.S._, 108 S.Ct. 5341988. federal habeas petitions in death penalty 6th Amendment’s fair cross section re cases. That committee is due to reportits quirement applies to the petit as well as Dissenting in Teague, Justices Brennan recommendations laterthis year. the grandjury sua sponte considered the and Marshall criticized the plurality’s general question of retroactivity on col broad curtailment of habeas relief, par Some of the most restrictive measures lateral review. ticularly since it did so without the have issued from the Supreme Court, a benefit of full briefing or oral argument. Court which, with it’s Reagan appoint The plurality concluded that any new Teague, supra, 109 S.Ct. at 1086. Fhe ments, has become one of the most con rule of law-one "not dictatedby prece questionwas addressed in3 pages of an servative ever in the area of criininal law. dent existing at the timethe defendant’s amicus brief. The dissenting justices

August1989/the Advocate 49 criticized the plurality for it’s "in activity rather than the issue’s preceden 4biii which places an absolute fidelity" to the doctrine of stare decisLs. tialbasis. limitation on the number of pages for Id. Thejustices also went togreat lengths death penalty briefs. to illustrate that the plurality’s decision The collateral implicationsof Teague are to link the availability ofrelief to guilt or clear. The unavailability of habeas cor Hopefully, the declineoffederalism will innocence if the outcome of a case is not pus to createor apply new constitutional not be taken as a blanket signal to the "dictated" by precedent would prevent rules may have a bearing on the Court’s states to cutbackon constitutional rights. many 5th, 6th and 14th Amendment determinationof whether apetitionerhas Limitations on procedures or the scope cases from being brought on federal abused the writ, particularly inrelation to of habeas review in federal court should habeas. The dissent pointed to 19 pre successor habeas petitions, which are notbe construed tomean that state courts vious significant decisions which could generally based on new developments in cannot or should notupholdfederal con nothave beenmade under the plurality’s the law. Teague may also further dilute stitutional rights or apply new constitu retroactivity rule. Id., 1088-89. the already limited exception of the tional rules instate court evenifunavail "novelty" of a claim as reason to excuse able in federal proceedings. Moreover, Many observers of the Supreme Court a proceduraldefault so that the claim can any limitation on federal constitutional believe that the plurality in Teague, a be raised in a habeas corpus proceeding. rights does not restrict the state’s non-capital case, had a hidden agenda of See Reed v.Ross, 468 U.S. 1, 104 S.Ct. authority to apply it’s own constitution restricting further the ability ofthose sen 2901 1984. Indeed, arguing "novelty" to ensure those rights itself. tenced todie by the state to litigate con may place the petitioner in a classic stitutional issues in federal court. The "Catch-22" situation. RANDALL L. WHEELER plurality specifically left this question Director open but did not waste much time in Teague and Peniy, as well as other Capital Litigation Resource Center applying the Teague rule to a capital Supreme Court cases restricting habeas Frankfort case, once again sua sponte, in Peniy, relief, place a greater burden at the state level for the correction of constitutional ‘Finality was defined as the exhaustion supra in which the Court held the of the direct petitioner was entitled to a specific errors. Specifically, attorneys have been appeal or, if certiorari from given the burden, particularly in capital the Supreme Court was sought, when it mitigation instruction on mental retarda was denied or,if granted,whenreliefwas tion and an abused childhood but also cases, of raising every issue possible on held that the 8th Amendment does not the direct appeal. See Smith v. Murray, denied. 477 U.S. 527, 106 S.Ct. prohibit the execution of the mentally 2661 1986. The Court, at least, did expand the retarded. Unfortunately, Jutice White, Indeed, attorneys must be clairvoyent, exception allowing retroactive applica who had not joined the Teague plurality forseeing novel issues in the case being tion if the new rule made conduct no did so inPenry making the retroactivity litigated as well as those that might be longer criminal, to included those issues rule that of a majority.The Court cursoti decided after the petitioner’s conviction in which it was assertedthat a particular lystated that the state’s fmality concerns has become final. This emphasizes the class of person could notbe punished. areas applicable inthe capital sentencing need to track percolating issues, par context as in any other case. ticularly in the Supreme Court by cx aniining cases in which certiorari has Certainly an argument can be made for beengrantedand concurring anddissent most any issue that it will notrequire the ingopinions to see what issues are likely NEW IN THE announcement of a new rule or the ap to be successfuL Counsel should also DEATH PENALTYLIBRARY plication of a rule which developed only consider in appropriate cases the pos after the finality of the petitioner’s con sibility of raising some traditional post- 1. Liebman, James. FederalHabeas viction because issues will almost al conviction issues on or during the direct Corpus Practice and Procedure. ways have some basis in precedent. But appeal requesting a remand or sup 1988 2 vols. Teague, and particularly Peniy, illustrate plementation of the record if necessary that an argument tying the issue to a in order to avoid the possibility of relief 2. Defending a Capital Case in pre-finality line of cases may not be being foreclosed after the finality of the Texas. Manual from the Texas Death enough. Justices Brennan and Marshall, conviction. Also, greater consideration Penalty Resource Center. in their dissent in Teague asserted that must be given to the filing of a petition the plurality’s conclusion that a case an for a writ of certiorari after the direct 3. Post-Conviction Law and Prac nounces a new rule ifthe result was not appeal making sure that the petition in tice. Materials from the 1988 Train "dictated" by precedent existing at the cludes any issue in which it is conceiv ing Seminar for Capital Litigation time the petitioner’s conviction became able that a new rule could be announced Resource Center personnel final was too vague, for it could be con or applied. 4. Variouspleadings: cluded in almost every case that a decision had not been "dictated". The Supreme Court’s decisions, by trun Blystone v. Pennsylvania. 88-6222. Teague,supra, 109 S.Ct. at 1087 -88. hi cating the availability of relief, have also United States Supreme Court. Brief Penrythe Court stated that the petitioner placed a greater burden on the state for Petitioner. was entitled to the benefit of Lockett v. courts to scrutinize issues carefully. This Ohio, 438 U.S. 586, 98 S.Ct. 2954 isfacilitated inKentucky, atleastincapi Requests for materials from the death tal cases, by statutory law requiring the penalty library or suggestions for ac 1978, and Eddings v. Ohio, 45 W.S. quisitions may be sent to: 104, 102 S.Ct. 869 1982, in relation to Kentucky Supreme Courtto consider er the mitigation issue because they had rors raisedon appeal even ifunpreserved. Julia K. Pearson been decided prior to the fmaliry of the KRS 532.075 2. See Cothy and Walls KCLRC petitioner’sconviction. But the Courtdid v. Commonwealth, Ky. S.W.2d 1264 Louisville Road notstop there; the Courtultimatelyrelied 36 K.LS. 6,34 6/89. However, the Frankfort, KY 40601 on the nature of the rule that was being need for comprehensive review is 502 564-8006 requested in it’s determination of retro hindered by such rules as Cr 76.12

August 1989/the Advocate50 EFFECTIVE LISTENING FOR LAWYERS

INTRODUCTION and interruptions. COMMUNICATION ASPROCESS The relationship between lawyer and If we summarize a composite profile of client has both content and process the lawyeras an individual who is preoc Interviewing has been defined as dimensions. Content refers to the ex cupied with talking not listening, who "lawyer interaction with a client for the change of legal advice and infonnation, predicts what the clients intend to say purpose of identifying the client’s prob process refers to the relationship be before they articulate their ideas, who lem and gatheringinformation on which tweentheparties, including theirfeelings prematurely formulates his/her own a solution to that problem canbe based," about one another and the man in responses, and who yields to external and counseling as "a process in which which those feelings are manifested. distractions, wehave summarizedthe as lawyers help clients reach decisions.... "Content’ is the reason a person seeks cepted behvior patterns forpoor listen Potential solutions with their probable legal advice, ‘process’ may explain why ing habits. positive and negative consequences are he chose the lawyerhe came to see."1 identified and weighed in order todeci The essence of counseling skill legal which alternative is most appropriate. Listening is a process skill, and one and otherwise is providing the client In both legal interviewing and client which attorneys may have been with a balance of information and counseling the attorneymustlisteneffec dishabiruated from developing. They "freedom." tively. have been trained within a system which Physicians are often criticized for encourages a verbal, adversarialmode of providing toolittle information, Iaiayers To uncover the client’s underlying discourse and devaluesotherstyles,even are often oriticized for providing either motivation for coming to the lawyer, to if they would be more effective. too much information, or too little ascertain all of the necessary informa freedom. The one faultisto leavethe tion, and to understand fully the client’s "Most lawyers do not do enough listen client in the hang-up of ignorance, the basic goals and needs about his or her ing. They have not time to listen. They otheris to lecture to the clientapdleave problem or concerns, the attorney must are too busy asking too many ques him no room to make choices. successfully employ such basic com tions."2 The lawyer’s role encourages munication strategies as activelistening, poor listening habits: any professional This "freedom" is possibleonly through open-endedquestions, empathy, clarity, counseling relationship "a1was tends to the demonstration and mastery of effec honesty, fairness, and proper direction of dominationby the counselor." There is tive listening skills. hesitant clients. a rationale forthis tendency to notlisten: individuals often think they know what It is generally assumed that a good Binder, an attorney, and Price, a the speaker is going to say and arebusy lawyer is a good talker. psychologist, feelthat "lawyers [general formulating or stating their response Contrary to popularbelief says Sydney ly] lack the training to uncover and throughinterruption, overlap, or inatten J. Hams, it is usually the good talker resolve an individual’s underlying tionbefore the speakerhas actuallycom who makes the best listener. A good psychological needs and conflicts" but pleted his/her ideas.4 talker by which I do not mean the believe that "without getting into the egomaniacal bore who always talks realm of deep psychological analysis..., Another poor listening habit is im about himself is sensitive to expres sion, to tone and color and inflection in lawyers can develop some expertise in patience, which may be exacerbated by dealing with needs that typically block the lawyer’s perception to his or her so human speech. Because he himseff Is articulate, he can help others to articu motivation for full participation in the cial role. In an interview, one attorney late their half-formulated thoughts. His legal interview."9 They suggest attor acknowledge& mind/ills in the gaps, and he becomes, neys develop empathetic understanding Delay and thoughtfulness are crucial Li Socrate’s words, a kindofmidwife for skills- definedas the ability toeffective steps In listening. Often the automatic ideas that are struggling to be born.... ly listen, understand, and suspend judg response is incorrect Yet because Hislistening is keyed for the haff tones ment. Binder and Price claim that attorneys are problem solvers, they and dissonances that escape the un need to appear to be heroes. It hurts trained ear. For it is themarkof the truly fBJoth clients and witnesses are con their egos to say they need to think good listener that he knows what you tinually expressing their thoughts and about something. are saying often better than you do; and feelings about what has, or is likely to hispaybackis a revelation, nota record occur. Clients and witnesses do not Formulating respo9es prematurely is a ing. simply reportobservedfacts. Theycom municate how they left when an event poor listening habit. A good lawyershould be no less. Thus, occurred, why they believe an event Then there is the attorney who, though there is a pressing need to address the occurred and how they now feel and demonstration of positive listening what th occurrence protends for the physically present, finds his or heratten future.1 tion divided by numerous distractions ability by attorneys, especially during the lawyer-client interview.

August 1989/the Advocate 51 Lawyers who developthe ability to listen actions and/or bow the client’s problem Avoid evaluative feedback. Provide an empathetically "will usually become can best be handled, aypriate ques atmosphere that facilitates revealing recipientsof an ever-increasing amount tioning will allow you to elicit informa rather than concealing behavior. If the of information," because individuals tion that the client may have neglected, client is reluctant to open up for fear of who feel that they are being listened to forgotten, or overlooked. negativereaction, you may havedifficul empathetically "will be strongly ty obtaining all of the information you motivated to continue communicat CRITICAIJEVALUATIVE require. "The major barrier to intezper ing."11 LISTENING sonal communication is our very natural tendency to judge, to evaluate, to ap Listening ability is fundamentalto com Critical and evaluative listening refers to prove, or disapprove the 1tatement of the munication between lawyer and client. the ability to judgewhat has been com municated, and, based on that judgment, other person or group."1 to evaluate the message conveyed. Be Listen nondirectively. Pioneer re TYPES OF LISTENING alert to source factors that affect judg searcher on listening behavior, Ralph ment. Nichols, suggest attentive behavic as a DISCRIMINATiVE LISTENING Identify source credibility. How much key for non-directive listening.’ Not refers to the only must you be able to listen empathi Discriminative listening information, authority, and access to cally, you must also tiy to understand as ability to distinguish auditory or visual relevant facts the client possesses are well the client’s orientation, or view stimuli; you must not only attend to the instrumental to your being able to help client’s words, but also you must be able him or her. How reliable, trustworthy, point, or order. to distinguishi 1 vocal clues paralan competent, etc. the client is are also key Provide a supportive communication guage; 2 verbal messages emotional elements that affect yourjudgments. climate. Because a barrier is created by ly loaded words, facts versus opinions, the very role distinction between lawyer sarcasm, argumentativeness, etc.; and Information analysis. You must be able and client, to assure effective and 3 nonverbal messages determination to discern what information is accurate, productive communication, you must of whether or not there is congruence relevant,, and necessaryto the case. Such allow the transaction with the client to between the verbal, vocal, and nonverbal questions are how the information was take place in an environment-physical as communicative acts. arrived at, what the basis of the problem well as emotional- that is supportive as or concern is, and why the client is opposed to threatening, imposing, and COMPREHENSiVE LISTENING soliciting the attorney’s services arepart distancing. Some of the most effective of the analyticprocess. Comprehensive listening refers to the listening skills and techniques grow out ability of the listener to understandfully Decoding affective messages. Clients of a therapeutic model of effective com the speaker’s message. This is the most bring to the interview their own ex munication. One of these techniques, easily observable and measurable type of periences, ideas, values, assumptions, counmonlyrefexred to as active listening, listening, and is the type of listening we and needs. Although with time and ex is particularly applicable to the lawyer- useas bothstudent and professional. For perience, the lawyer is able torecognize client interaction. the interview to be truly productive and certain patterns, each individual will satisfactory tobothclient and lawyeryou manifest distinguishing personality DEMONSTRATING ACTIVE shouldkeepthe following goals in mind. traits. Avoidpre-judgingclients and their LISTENING. needs based on past experience with Listen for and determine the main Listening is not a one-sided passive others. Nor should you necessarily as process. In the process between lawyer- Ideas/concerns/problems. For ex cept at face value every utterance. Cer ample, client’s basic client, you should encourage the client what is the mo tainly, knowledge of the client, of the through positive listening feedback. tiveñntention that brings him orher tothe law, and past experience inform your lawyer in the first place? You can do this by following six aspects judgments. You must be ever aware of ofnon-verbal communication that signal Attend to significant details. For ex the delicate balance required to integrate acknowledgment, attentivenecs, and en ample, discern among crucial facts, the client’s intentions, needs, and mo couragement of the speaker:’ figures, dates, etc. and embellishment, tives withthe facts surrounding the case. I Paralanguage, or the appropriate in exaggeration, or the inclusion of super THERAPEUTIC LISTENING fluous or irrelevant information. This is sertions into the conversation of such a critical first step in the information Therapeutic listening lets the speaker phrases as"Aba," "I see," "uh-huh," and gathering stage. feel thathis orherneeds, concerns, ideas, "Mmiii hmm" demonstrates to the etc are being fullyattendedto While we speaker a willingness to continue listen Attempt logical Inferences.Youneed to are notadvocating that you should actas ing. be able toply the explicit information a client’s therapist during the interview, 2 Head nodding may indicate either you receive from the client in order to it is importantfor the client to be able to make implicit assumptions about the encouragement to continue or under interactin an environment that is neither standing of what is being said. problem/situation. threatening, distant, nor judgmental. Take notes when appropriate. You "Tobewithsomeone whois truly willing 3 Smiling at appropriate points during needto be able to record the salient facts tolisten, who concenatessensitively on the exchange also indicates attentiveness and information without allowing note- all that is said, isno longer to need defen to and encouragement of the speaker. ses."12 You need to obtain information taking to become intrusive to the interac 4 Posture or appropriate body position tion withthe client. that is both relevant and accurate. Gathering this information from a will ing forward body lean, erectness, for Formulate meaningful questions. ing as opposed toresistent client can be ward head movement can also signal Since you must obtain information to facilitatedin a number of ways. positive listening feedback. proceedwith advisingthe client onfuture 5 Alert facial expression eye contact

August 1989/the Advocate 52 provides listening markers. Deborah isanAssisfantProfessorandProgram FOOTNOTES 6 Note-taking only when important Director of Speech Communication at New points of information are given as op York University andapsiwile communications consultant to individualprofessionois and cor * posed to doodling may indicatea desire porallons.Shehas Sectsired here andabroad on 1. Schaffer, Legal Interviewing and to maintain an accurate record of what is topics related to communication and conflict Counseling in a Nutshell 1976. being said. resolution. D. Binder & S. Pnce, Legal interview Reprinted by permission ofthe Champion and ing and Counseling: A Client-Centered In addition to these non-committal as theauthors. Approach 1977. knowledgments and regulators - that give the client the"space" to freely com T. Shaffes supra note 1, at 12. municate thoughts and feelings - you can SUGGESTED READINGS also attempt to communicate that you L Bther,ListeningBehavior 1971. hear and accept the client by restating R. Birdwhistell, Kinesics and Context £ J. Floyd. Listening: A Practical Ap what the client has said and by attempt Essays on Body MotionCommunication proach 1985. cientthatyouunderstand ing to show the 1970. Id.;LsteiLLBarker&LWatson, how the client feels; that is, "pick[ing] up Effective Listening: Key To YourSuccess the client’s message and send[ing] it Freund, Many "Pesky Postulates" 1983. A. Wolvin, &Coaklcy, Listening backin a reflective statement wlichmir Plague Murphy’s Lawyers, Leg. Times 1982. rors what [you have] heard."1 Active N.Y., Apr. 25, 1983, at A19. T. Shaffer, supra note 1, at 8. listening is more than a paraphrase of the Communication Strategies in the Prac client’s verbal message, however. In & D.Binder&S.Piice,siqranote2,at activelistener is activenotonly ticeofLawyering55-80, 89-105 R.Mat short,the lou & R. Crawford eds. 1983 Con 25. on the levelofinterpreting nonverbaland ference Proceedings, University of Id. at 8-9. verbal messages but also by affirm Arizona. atively demonstrating that interpretation 10. Id. at 15. through reflective statements. G. Miller, Speech Communication: A Behavioral Id. Active listening has particular applica Approach 1966. " Barniund, Communication: The Con tion for attomeys, who are prone to Mosten, The Trouble with Law School test of Change, in Perspectives on Corn believe that the factual content in a corn- Education: A Consultation as a munication4l C.Larson&F. Dance eds. - municative exchange is the onlyrelevant Microcosm, l8CreightonL.Rev. 1985. 1968. or important data. However, howpeople feel strongly influences the nature and A. Watson, The Lawyer in the Interview 13. C. Rogers, Client-Centered Therapy amount of information they provide and ing and Counseling Process 1976. 541951. the decisions theymake. Thisis informa 14. Beavin Bavelas See generally R. Nichols & L. tion you do not want to be without. P. Watzlawick, J. & D. Stevens, Are YouListening? 1957. Jackson, Pragmatic: of Human Corn CONCLUSION mw&ication 1967. ‘ SeeM. Knaff, Essentials ofNonverbal Communication 1980; 0. Miller, Chief Justice WarrenBurger, referringto C Weaver, Human Ltstei’ung Proce.v Speech Communication: A Behavioral the legal profession, remarked, "The ses and Behavior 1972. Approach 1966. obligation of our professionis to serve as 16. G. Williams, LegalNegotiation and Set D.Binder&S.Pxice,ssçranote2,at healers of human conflicts." However, 25. before an individual attorney, counselor, tlement 1983. mediator or therapist can attempt to heal human conflicts, s/he must be able to hear those conflicts, no matter how cogently or tentatively they are ex fProof or DLcpivof of .Facts fIbout iJcoñot ant Dntgs pressed by the parties involved. If attor neys attend to all levels of a client’s * Experienced Expert Consultation & Testimony message, actively engage in process- - Pharmacologyand Toxicology Ph.D. Personal Injury lnvoMngAlcohol & Drugs oriented communication and demon Criminal Defense and DUI strate thekey aspectsofpositivelistening Drugs In the Workplace and feedback, the legal professioncould become a model of transactional com * Information Available on Errors of Intoxllyzer 5000 and Breathalyzer2000 Machines munication. Blood and Urine Testing Methods "Field Sobriety Tests" LISA MERRILL, Ph.D. DEBRA BORISOFF, PhD. * Author of Major Forensic Articles Two reviews-over 300pages-ln 1989 volumes of American Jurisprudence:ProofofFac& Lisa is an Assistant Professor of Speech Com Guilt by Presumptlon Defending the DW1 Suspect. munication at Hofttnz Univeni4y, a registered Cover article in ABAs CriminalJustice. Spring, 1989. Drama Therapist and a private communica tions consultanL She has lecturered both here Locitcd csitgjdLouigvillc,Ksiiuicky and abroadon topics relaledtocommunication, Dr. Jonathan Cowan drama therapy and crou-culturalcommunlca MedicalResources lion. P.O. Box 364, Prospect,KY 40059 502 228-1552

August 1989/the Advocate 53 BOOK REVIEW

Randy Wheeler Trial Objections practitioner is that TrialObjectionsisnot Mark A. Dombroff tailored specifically for practice in the Hughes, Hubbard& Reed Commonwealth and provides very few Washington, D.C. Kentucky citations. By being concise 1988 Dombroffgives issuesverygeneral treat $49.97 ment. Using this text alone, without ref erence to Kentucky law and rules could In Trial Objections, Mark A. Dombroff provefatal. For example, Dombroffdoes attempts to identify every issue which not indicate that offers of proof i.e., might arise at trial and offers clear and avowalsareneeded to preservethe error concise ways to address those issues of omitting evidence as is required by through motions and objections. But Kentucky cases applying CR 43.10. Trial Objections is notsimply an eviden Dombroff states only that it is to the daty treatise; it is a practical handbook, litigant’s "advantage" to make an offer specifically organized to be a quickref because it puts the appellate court in a erence in the courtroom. The book is "better position" to review the issue. actually a ringed binder containing a Perhaps the best way to utilize Trial Ob number oftabbed sections discussing the jections would be as a complement to various objections and motions that Professor Robert Lawson’s Kentucky might be necessary at any trial. These EvidenceLawHandbook 2nd Ed. 1984 tabs are color coded for the following reference during trial, the real value of and Kentuckyrules. main categories: Preliminaries, Evid TrialObjectionsisthatitcanbeusedto euce, Witnesses, Misconduct, and Sum prepare for trial. Reviewing the book Since it is just asimportant for a litigator mation. Dividers are also provided prior to trial anticipating the evidence to know when to object as it is what to within these main categories for refer- whichwill bepresented and other actions say and it is usually difficult, if not im - - ence to specific issues. "Preliminaries" which mightoccur would be a good way possible, to cdnsult a reference book includes jury selection and opening for the practitioner to know the position during the heat of a court proceeding to statements. The evidence category ex that should be taken and what should be determine whether to object and how to amines demonstrative evidence, docu stated to support that position at the time phrase and support an objection, it is mentaiy evidence, hearsay, and hearsay that anything objectionable happens. doubtful that any book could give more exceptions.The witness category addres Dombroff’s tactical pointers are ex thanjust occasional support during trial. ses competency to testify, expert wit tremely helpful because of their prac However, by the use of tabbed and color nesses, leading questions and privileges, ticality. He even goes so far as to point coded dividers, the bold facing of key among other topics. "Misconduct" deals out when not to linger so the opponent words and conciselanguage Dombroffs with attorney and judicial actions and will notbe able toregroup,howto phrase Trial Objections comes as close to "summation" with closing arguments. objections and responses so as not to providing this immediate reference as antagonize thejudge orjury, and, indeed, any book probably could. Each section dealing withaspecific issue even when to apologize to the jury. Ob includes a brief and straightforward dis viously, Dombroffcould notdelineate a RANDALL L. WHEELER cussion providing sample language for tactic for every possible situation, but Director objections that can be araphrased to fit those provided are useful evenif only to Kentucky Capital Litigation particular fact situations, comments provoke thought. Resource Center about the rules governing the objections, Frankfort the circumstances under which objec An included biography indicates that tions should be made, and lists of sup Dombroff has extensive experience in Responding to officials who de porting cases with abbreviated descrip civil litigation and this is reflected by nigrated a particularly recalcitrant tions of the facts and holdings.There is Trial Objections, which includes sec offender, John Augustus retorted:"... also tactical advice on how to improve lions on a number of civil concerns in he has been locked up... hunted by the chances of having an objection sus surance,repairs,settlement negotiations, lawsand every infirmity ofhis nature tained. Dombroffalso includes a heading etc. However, this doesnotdetract from punished. You have tried the experi addressing responses that should be the book for criminal cases, particularly ment fully and now seebefore you a made to objections if you are the op in the area of evidence, which evaluates livingwitness of the follyof attempt ponent. issues equally applicable to both civil ing to force a maninto reformation." and criminal trials. Although the author states plainly that

the book is intended to be used as a The major drawback for the Kentucky - Augustus

August 1989/the Advocate54 REVIEWBOOK PD Jobs Available

West Virginia Public Defender Ser vices PDS will hire 20-25 attorneys between June 1 and September 1, 1989. Some positions require no trial Lisa Shouse experience; others substantial trial and administrative experience. Must be a member of WV state bar or SLENDER IS THE THREAD eligible for admission. Tales From A Country Law Office Author Harry M. Caudill HARRY M. CAUDILL Minimum starting salary for Assis The University Press ofKentucky1987 tant PD: $28,500-$38,S000, depend $18.00 ing on experience. Minimum for 173 pages Managing Defenderrequires 3 years trial and administrative experience: Writtenby a Letcher County native who Slender $42,500. has practiced law in Eastern Kentucky fornearly three decades, this bookdelves Send resume, references, and a writ into the hills of Appalachia. Its tales ing sample to: reflect the ways of the people, their jus tice system, and the topography of the John Rogers region which contributedto both. TliFe Director of Legal Administration Public Defender Services After reading these stories, itismy belief 1800 Washington St. E. Rm. 330 that the justice system suffered as much Tales from Charleston, WV 25305 as the people. The system was, often times, compromised at theurgency ofthe a Country PDLean equal opportunity employer. people. This was an era where people would go to such length as to spend LawOffice numerous hours and days,traveling great Staff Changes distances, and expending public and paign workers, have "wet whistles", private funds, to properly execute an es deceased black "padded pockets", and "promised par tate of a coal miner; yet dons" in order to get elected, and now Morehead would notthink twice about paying ajury they even promise public funds and to return a verdict of deathfor someone favors. Through the stories in this book Assistant Public Advocate, Julius who killed one of their "kin". weseehow the legal system supports this Aulislo joined our Morehead office The stories in this book reflect the per stereotype of Eastern Kentuckians. The on July 16, 1989. He is a 1985 sonalities of the people, passed down by tales reveal how the justice system also graduate of the University of Florida their European ancestors. The land was benefits from these same stereotypes. and worked with the Florida Public primitive, the mountains wild. As these Defender office in Barton from July great mountains divided and forests The author leaves no doubt that the 1986 to June 1989. began to shrink, towns were formed people of Eastern Kentucky live hard from day to day. Their lack of education London Office around mining operations and com has surely contributed to their hardened promised governments. way of life and kept them at an unfair disadvantage. Yet, their hazardous, un In this area and time, educational oppor Rob Robinson, tunities were fewand far between, due in skilled labor jobs keep our houses warm formerly an Assis in the winter. Thepeople and landremain tant Public Advocate with our Lon part to isolation and costs. Violence was don office since 1985 inbred. Feuding and fighting was stand intact. The ideals do not change, and the resigned effec violence remains. The legal system is a live June 1, 1989. He now works in ard procedure in most households. Due Elizabethtown in private practice. to this the government suffered too. mere product of the intertwining of cul Votes were bought by pardon or ture and topography. If the people of promises of acquittal. Violencewas even EasternKentuckyseemhardened and the Pikevifie Office areas oppressed, thenMr.Caudili’s Tales prevalent in the courtroom, as Mr. Larry Nickelt, an Assistant Public Caudill artfully illustrated that blood is From a Country Law Office may offer Advocate with some explanation for and add color to our Pikeville office thicker than water in a tale of the horror since 1988, resigned on June 1, 1989 in the Hilsville courthouse. And the these views. to join the office of John Paul Run violence never fades, as later stories LISA D. SHOUSE yon, Commonwealth Attorney, P.O. show, it only takes on new faces. Paralegal Box 796, Pikeville, KY 41501. The political system in the Appalachian Post-ConvictiorilResource Center region has been corrupt throughout its DPA Central Office history. Politicians, through their cam- Frankfort

August 1989/the Advocate55 FUTURE CRIMINAL DPA ATTORNEY DEFENSE SEMINARS VACANCIES

The Kentucky Department of Public Ad vocacy is a statewide public defender system with regional trial offices across Kentucky. The Department has a long tradition of NAACP Legal Defense NLADA Annual Conference vigorous advocacy on behalf of indigent Fund Capital Conference November 14-17, 1989 citizens accused of crime. August 2-5, 1989 KansasCity, Missouri Warrenton, Virginia 202452-0620 212 219-1900 There are currently 10 vacancies in DPA This nation’s most important Advanced Cross-Examination offices in Hazard, Stanton, London, La yearlycapital training. It NCDC Grange Morehead, Frankfort, and Paducah. attracts leading capital defense Atlanta, GA attorneys. Spring, 1990 If you are interested in working for the Department of Public Advocacy, contact: DPA Death Penalty DPA 18th Annual Practice Institute Public Defender Seminar October 1-6, 1989 June 3-5, 1990 David E. Norat Ky. Leadership Center LakeCumberland State Park Director of Defense Services Faubush, Ky. 1264 Louisville Road 1/2 hour west of Somerset Frankfort, Kentucky40601 The programcovers trial, 502564-8006 appeal, and state and federal post-conviction capital litigation using the trial practiceformat.

Department of Public Advocacy Perimeter Park West Bulk Rate 1264 LouIsville Road U.S.PostagePaid Frankfort, KY 40601 Frankfort, KY 4060] Pennit#1

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