Advocate Vol. , No. 1 A bi-monthly oublication of the Office for Public Advocacy Dec. ,. 1979 ETHICS: QUANDARIES &TEXQUAGMIRES FITZGERALD BY: Vince Aprile Director for Professional Development Office for Public Advocacy The death of Terrence R. Fitzgerald in September of this year has left the Query: May a defense attorney ethi legal profession, in general, and his cally permit his client in a colleagues, in particular, with a pro criminal case in Kentucky to found sense of loss. It serves no enter a plea of guilty even purpose to question why he died, for though the defendant is even if answers were provided he either not willing or unable would still be gone. But we can to admit his guilt? reflect upon the incredible contribution to the practice of law that he made, "[WJhile most pleas of guilty consist of and remember for a moment the man we both a waiver of trial and an express knew. admission of guilt, the latter element is not a constitutional requisite to the Ma rti nda I e- Hubbell’s tells us that imposition of criminal penalty.1’ North "Tex" was born in 1939 and was Carolina V. Alford, 400 U.S. 25, 91 awarded his LLB from the University S.Ct. 160, 167, 27 L.Ed.2d 162 of Kentucky School of Law in 1964. 1970. Furthermore, "fain individual For a long time I knew little more of accused of crime may voluntarily, his background, and most of what I knowingly, and understandably consent did learn came from sources other than to the imposition of a prison sentence Tex. even if he is unwilling or unable to admit his participation in the acts Eventually, and only with considerable constituting the crime." Id., 91 S.Ct. prompting, he revealed a little of the at 167. private man. I learned, for example, that he was an avid basketball fan, In North Carolina v. Alford, supra, though he seldom sat to discuss the "the State had a strong case of first game. He was proud of his bridge degree murder" against Alford. "Con ability, but played all too infre fronted with the choice between a trial quently. One could detect a sense of for first-degree murder, on the one joy when he attended social hand, and a plea of guilty to second- gatherings, but he often arrived late degree murder, on the other, Alford and left early. He was devoutly quite reasonably chose the latter and religious, and that was never masked. thereby limited the maximum penalty to He was a traditional family man in a a 30-year term." Id., 91 S.Ct. at day when the traditional family is 167. The Supreme Court emphasized under attack. that Alford’s plea of guilty had to be See Ethics, Page 13 Continued, Page 2 At the office, I observed that he was answer. Seldom was one disappointed. a quiet man. And, although it is His command of the body of rules and fashionable at times like this to say cases which comprise the criminal law that everyone was his friend, that was of Kentucky was nothing short of not true. Many didn’t know him well. phenomenal. His desire to communicate Some felt that he was cold and aloof. this knowledge, and thereby improve But everyone respected him. From the quality of criminal justice, ulti nine to five he was intense, fighting mately forced him into new endeavors. his legal battles with never ending energy and conviction. Occasionally, The wealth of information and under he was subject to displays of temper if standing Tex had for the criminal law he received an adverse ruling. But allowed him to produce an office always, he continued his quest to make manual for Jefferson District Public sense out of the law and to make it be Defender lawyers. It was regarded as fair and consistent. an unequaled reference source for them, and there was comfort in know He v’as a lawyer. First and foremost ing that at all times it was complete he was a lawyer. Most of the staff at and accurate. the Jefferson District Public Defender, and many of those who have served Recognizing that there was a very real there in the past, were in no small need to collate and condense the manner shaped by Tex Fitzgerald. As expansive body of criminal law into a an instructor in the University of source which would benefit lawyers Louisville Law School’s criminal justice engaged in the practice of criminal internship program, he literally made law, Tex began research on what was law students into practicing lawyers. to become, Fitzgerald, Criminal With his expert guidance they learned Practice and Procedure Ky. Practice, to transform raw research skills into Vol. VIII. The significance of that precise, polished techniques, and to book cannot be overstated. With its produce cogent, professional appellate publication in 1978, lawyers state-wide pleadings. Through him, they were could begin to benefit from the know taught how to mold basic knowledge of ledge Tex had obtained. His con the law into a formidable courtroom tribution to the improvement of weapon. criminal justice in Kentucky was grate fully received, and is today regarded Tex’s was not an "ivory tower" view of by many as the definitive word on the challenges which confront the criminal law. Across the state, practicing lawyer; he offered insight lawyers who never met Tex Fitzgerald gained from personal experience. He now owe him a debt of gratitude. His left law school to become a trial book has reached out to those he could attorney, first in private practice and not touch, and helped them to become later with the Jefferson District Public better lawyers. Because of him we are Defender. When the demands of a better informed and more able to strive growing appellate case load neces to achieve that illusive goal of justice sitated specialization at that office, for all. He is missed, but his mark on Tex Fitzgerald became Chief Appellate the profession continues; and while it Defender, a position he held till his is tragic that he died when he did, it death. would be so much more tragic to us all, had he never lived. Still, he was always available for consultation with the staff. There was a universal belief that if you had a legal question, Tex would have the -2- WEST’S REVIEW OF RECENT 208 when he became eighteen." Con DECISIONSCOURT tary t the holding in Johnson et. aI. V. Bishop, the Court held that waiver Case law for the months of September proceedings are unnecessary unless and October includes two conflicting the district court first assumes juris decisions involving juvenile jurisdiction diction. Discretionary review will be from the Court of Appeals. In sought to resolve this conflict. Johnson, et. al. v. Bishop, Ky. App. 26 K.L.S. 13 September 21, 1979, In Commonwealth v. Keller, Ky.App. the Court, in an opinion by Judge 26 K.L.S. 14 October 19, 1979, the Wilhoit, granted the defendants’ peti Court of Appeals granted a writ of tion for a Writ of prohibition pre prohibition sought by the Common venting the Leslie Circuit Court from wealth after the Fayette Circuit Court trying them for robbery. The charged refused jurisdiction of a misdemeanor offense had occurred prior to the joined with a felony in an indictment. defendants’ eighteenth birthdays. The Court of Appeals cited KRS Juvenile petitions charging the defen 24A.1102, which gives the district dants with robbery were filed in court exclusive jurisdiction of mis district court but no action was taken. demeanors, "except where the charge Then, following the defendants’ is joined with an indictment for a eighteenth birthdays, both were in felony," as standing for the principle dicted. The Court of Appeals, grant that a district court may waive its ing the writ, cited KRS 208.0201 jurisdiction of such misdemeanors which vests in the district court regardless of any prior appearance "exclusive jurisdiction" of "any person before it by the accused. who at the time of committing a public offense was under the age of eighteen The Kentucky Supreme Court has years." Because the charged offense definitively answered the question of had been committed while the defen what measure of value is to be used in dants were less than eighteen, and determining whether an accused is because there had been no waiver of guilty of receiving property valued at the district court’s jurisdiction, the more than $100 a felony or less than Court of Appeals held that the circuit $100 a misdemeanor. Tussey V. court lacked jurisdiction to try the Commonwealth, Ky., 26 K.L.S. 13 defendants. October 9, 1979. Tussey had been charged with receiving stolen copper A contrary holding was reached by the wire which, although it was worth Court in Johnson v. Commonwealth, approximately $1500 when stolen, had Ky.App., 26 K.L.S. 13 September 21, been damaged and reduced to an 1979. Again, the defendant had acknowledged value of less than $100 committed the charged offense before when received by Tussey. Tussey his eighteenth birthday, and, although was convicted of receiving property a petition had been filed in district worth more than $100 and the Court of court, no proceedings had followed. Appeals affirmed after holding that the Upon becoming eighteen the defendant controlling value was that at the time was indicted and subsequently tried of the theft. The Supreme Court, and convicted. The Court of Appeals, reversing that decision, observed that Judge Wintersheimer writing, held "[t]o hold an individual responsible for that, because no proceedings had an act unrelated to his or her own taken place in the district court, that criminal liability would contradict all court had not exercised jurisdiction theories of fairness in modern justice." over the defendant.