1 Kentucky Association of Criminal Defense Lawyers September 2014 J. Guthrie True KACDL ANNUAL CONFERENCE & CRIMINAL DEFENSE SEMINAR President Don’t Miss It Bill Deatherage President-Elect KACDL’s most exciting Annual Conference Willis Coffey First Vice-President and Criminal Defense Seminar is set for Friday, Oc- tober 24, 2014, at The Galt House - Louisville. The District Vice-Presidents seminar is headlined by such speakers as Barry Audrey B. Lee Scheck, Co-Director of the Innocence Project; Sister Wesley V. Milliken Helen Prejean, the author of the best-selling book Frank Mascagni, III and blockbuster movie Dead Man Walking; and Damon Preston Chief Justice John D. Minton, Jr., of the Supreme Rachael Neugent Court of Kentucky. You don’t want to miss this Robin Webb event. Director-at-Large Johnny Bell In addition to these headlining speakers, the James L. Cox seminar agenda is packed full of timely subjects for Erwin W. Lewis the criminal law practitioner. For instance, Dr. Patrick J. Renn Andy Cobb, of One Source Discovery, will discuss David Ward digital forensic issues and deal with the complex dis- Guthrie True Laura Ward covery issues involving cell phones and other electron- Wilbur M. Zevely ic devices. And Richard Kammen, a noted Indiana trial lawyer, will talk about combating junk science. You will not want to miss this seminar. Directors ex officio Russell J. Baldani Mark A. Bubenzer By now should have received a registration packet both by email and Brad Coffman by regular mail. If not, visit the website at www.kacdl.net and download the Jerry J. Cox registration packet. Please take the time to register today and plan to join us Rebecca DiLoreto on October 24 at The Galt House! Daniel T. Goyette David Hoskiins William E. Johnson In this issue: W. Robert Lotz 2014 KACDL Annual Conference & Criminal Defense Seminar Samuel Manly Kentucky Supreme Court Upholds Ethics Opinion That Prohibits Waiver of IAC as a Ed Monahan Condition of Plea Agreement Bette J. Niemi Upcoming 2015 General Assembly, Your Legislative Outlook R. Tucker Richardson A Note of Appreciation from NCDC Scholarship Winners Larry Simon DUI Seminars a Success Mark J. Stanziano Z’s July 2014 DUI Tip and New Manual Possession of Two or More Firearms Now Constitutes a Single Transaction Steve Oberman to Lead DUI Seminar Executive Director Litigating the Non-Capital Sentencing Hearing at Trail Amber T. Greathouse KY Chamber of Commerce Praises Correctional Reform 2 KENTUCKY SUPREME COURT UPHOLDS ETHICS OPINION THAT PROHIBITS WAIVER OF IAC AS A CONDITION IN PLEA AGREEMENTS -Dan Goyette In a unanimous opinion rendered on August 21, 2014, the Supreme Court of Kentucky affirmed KBA Ethics Opin- ion E-435, which stated that: (1) a criminal defense lawyer may not advise a client with regard to a plea agree- ment that waives the client’s right to pursue a claim of ineffective assistance of counsel as part of the waiver of the right to collaterally attack a conviction covered by the plea agreement; and (2) a prosecutor may not propose a plea agreement that requires a waiver of the defendant’s or potential defendant’s right to pursue a claim of ineffective assistance of counsel relating to the matter that is the subject of the plea agreement. The KBA relied on Kentucky Rules of Professional Conduct 1.7 and 1.8(h) (Conflicts of interest), and Rule 3.8(b) (Special responsibilities of a prosecutor) in reaching its conclusions. The ethics opinion was adopted by the Kentucky Bar Association Board of Governors in November 2012 and published in March 2013 (a copy of the full ethics opinion may be accessed at http://www.kybar.org/). The United States Attorneys for both the Eastern and Western Districts of Kentucky sub- sequently petitioned Kentucky’s highest court for review. Oral arguments were heard before the full court on September 19, 2013. Scott West, DPA General Counsel and fellow KACDL member, successfully presented the Respondent’s argument on behalf of the KBA. In the 35-page opinion, Chief Justice Minton, writing for the Court, agreed with the KBA and held that “the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attor- ney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel." See United States of America, By and Through the United States Attorneys for the Eastern and Western Districts of Kentucky v. Kentucky Bar Association, 2013-SC-000270-KB (Ky.Aug. 21, 2014); available at http://opinions.kycourts.net/sc/2013-SC-000270- KB.pdf. In its conclusion, the Court stated: “We are duty-bound to regulate the legal profession within our borders. Today, we are proactive in that role. Attorneys practicing in this Commonwealth, whether state or federal, must comply with our ethics rules. Accordingly, either defense counsel or prosecutors inserting into plea agree- ments waivers of collateral attack, including IAC, violates our Rules of Professional Conduct.” This case has received widespread attention and been closely watched by courts and bar associations across the country. The much anticipated decision by the Supreme Court of Kentucky is certain to have a broad national impact on the practice of criminal cases, both in terms of law and ethics. It is a comprehensive, well-reasoned analysis that should be required reading for defenders and prosecutors alike. Daniel T. Goyette is the Chief Public Defender for Jefferson County KY and has served as Executive Director of the Louisville-Jefferson County Public Defender Corporation since 1982. He is a former member of the KBA Ethics Committee and the ABA Standing Committee on Ethics and Professional Responsibility. He can be reached at [email protected] 3 The Upcoming 2015 General Assembly, Your Legislative Update -Ernie Lewis You can tell what is going to be the focus of the 2015 General Assembly, with a few exceptions, by paying attention to what is going on at the Interim Judiciary meetings, as well as what the chairs are doing during the interim. Here’s my take on what’s going on. Corrections. I attended an early June meeting of the Interim Judiciary Committee at the Northpoint Training Center. One of the areas that was addressed was segregation. Dr. Jim Austin and Ken McGinnis presented to the committee on their studies of segregation units. They had studied four prisons in Kentucky and compared them to best practices. Their conclusion was that Kentucky’s segregation units fared well compared to units across the nation. Their findings were that placement into segregation is arbitrary, that offenders are usually released from segregation directly into the community, and that offenders with mental illness are in segregation primarily due to the lack of re- sources. Those with mental illness are not receiving assessments either before or after placement. Oversight is mini- mal, and suicide rates are high. The use of force on these units is excessive. They advised that being in segregation should not be a permanent status and the length of stay should be reduced. There should be out-of-cell programming. Segregation units should be reserved for violent offenders. Long-term segre- gation needs to include a step-down program, as well as transitions into the community. They recommended an in- crease in mental health professionals as part of staff. Domestic violence. I attended a meeting on domestic violence legislation that was held in June and attended by both Chairmen of the Judiciary Committees. Carol Jordan, UK Professor and the primary author of our domestic violence statutes called a meeting of “stakeholders” to listen to their ideas about the possibility of an omnibus piece of legislation for 2015. Her goal appears to be to fold dating violence into a broader bill that would address stalking. No draft bill was handed out at the meeting. The chairs were very interested in advancing a bill. Among the issues posed were the following: Should stalking be amended into the definition of domestic violence? Should we create civil protective orders for rape and stalking victims? Should civil right of action be specifically written for rape or domestic violence victims? Can the GPS provisions of the domestic violence statutes be simplified? Death penalty. The late July meeting of the Interim Judiciary Committee was held in Paducah and focused on wheth- er the death penalty should be abolished. There were presentations made by the faith community, victims, prosecutors, the Public Advocate, and myself. A brief summary of my comments follows: The death penalty has lost its intellectual foundation. In Furman v. Georgia, in 1972 in declaring the death penalty unconstitutional the Court stated that we “deal with a system of law and of justice that leaves to the uncontrolled dis- cretion of judges or juries the determination of whether defendants committing these crimes should die or be impris- oned. Under these laws no standards govern the selection of the penalty. People live or die dependent on the whim of one man or of 12.” Justice Brennan stated that the death penalty did not “comport with human dignity,” Justice White believed that the death penalty was being imposed “wantonly and …freakishly”, Justice Stewart believed that the death penalty had been “so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice.” Justice Marshall called the death penalty “excessive…morally unacceptable.” In the minority were Justice Burger, Blackmun, Rehnquist, and Powell. In reaction to Furman, states reacted by passing a variety of new death penalty statutes. Some states like Kentucky passed mandatory statutes whereby a conviction for murder plus an aggravating circumstance like rape or robbery re- quired the imposition of the death penalty.