THE ADVOCATE Vol. 10 No 2 A DPA Bi-Monthly Publication February, 1988 JOHN ROGERS shown here with his wife, Edna RETIRES AS DPA INVESTIGATOR "Those of us who worked closely with John in the investigation and preparation of trial cases relied on his expertise in investigation as well as his insight into how to deal with people in this area particularly. The Paducah Office was enriched by John’s presence because, in addition to his competence and professionalism, John Rogers was, and is, a gentleman. I think John T Rogers is a sterling example of the spirit of zealous and effective advocacy because he consistently went that extra step if to do so would be of benefit to the client or to that client’s attorney:’ Charlotte Scott Assistant Public Advocate Pad ucah Imprisonment Preliminary Parole Revocation Hearings Battered Women Defendants Using Kentucky’s Constitution The Difficulties of Death The Advocate Features John T Rogers The Department of Public Advocacy services that you have provided to When I started to work for DPA in lost a most valued employee when our clients, the poor and disadvan 1974, It took but one meeting with John 1. Rogers, Western Region taged, has been immeasurable. The Jhn for me to realize that he was Investigation Coordinator, retired quality and dedication of your work dedicated to his work. Thirteen on July 31, 1987. insured that our clients got the years and many meetings later the best possible investigative ser dedication was even stronger. John John came to the Department In vices available. The Department of was an inspiration to those of us 1974, servIng as one of only five Public Advocacy can never adequate that were fortunate enough to work investigators for the whole state, ly compensate you for the long wIth him, not that standing 6’5" after having worked with the Padu- hours that you have provided to the had anything to do with it but John cah Police Auxiliary and the Department. We will miss you. We was one that we looked up to. He McCracken County-Sheriff’s Office. will miss your dedication. We will worked long, hard hours. He worked He was sheriff from 1970 to 1974. miss your enthusiasm and our cli weekends and holidays yet he never ents will miss your services. complained. He worked these long At first, John covered an investi However, we want to wish you a hours because he believed in the gative district of nearly one-third relaxed and pleasant- retirement system. His case load was tremen of the state. He prepared literal that allows you to spend more time dous and driving 200 miles to get ly hundreds of cases for trial in with your family and to collect as home after a hard days work was not McCracken and neighboring counties. many trophy size fish as the waters unusual. Fran 1979 until his retirement, he you fish will yield." served as Western Regional Coordi John has also been a very close and nator and supervised three other Other than Edna, his wife of many loyal friend, We have fished to investigators, while maintaining a years, John’s great love was fish gether on numerous occasions and large investigative district. John ing. He even scouted good fishing even though John could never beat helped define DPA investigators as spots by diagraming channels, me catching fish, once again he creative and persistent profession stumps, and ledges when lake waters never complained because he was als. DPA investigators are respec were at low winter pool. dedicated. Well, maybe I would let ted today, in part due to the many him win occasionally, just so he successes John had. During the November 1987 invest!- would invite me back. gators training seminar, Dave Those who worked with John knew him Stewart, Investigative Branch Our families also became close. to be a persistent Investigator, Coordinator, presented John a Visits were not often enough but who always had his cases ready for plaque containing his .0. Badge when they were possiIe, they were court, while finding time to super and the inscription, "May the fish rememberd affectionately. vise other Investigators, and ready bite each day of your retirement to make suggestions to speed up or and may you and Edna have nothing Though John has now retired, his improve casework. Despite the but the best." We truiy hope John contribution to the Department will pressure of too many cases and too and Edna enjoy many golden years. long be remembered, and his friend little time, John was always a Keep smiling, John! ship everlasting. gentleman -- polite, quick to notice details, intelligent, and persistent. Lawrence P. Rapp, Sr. Investigator, Sr. David 1. Stewart Paul lsaacs In response to John’s 3600 Eastmeadow Court Investigator Manager letter of resignation, by letter Louisville, Kentucky 40258 Frankfort, Kentucky dated July 17, 1987 said, "The 502 933-2527 502 564-3765 -2- REVIEW...... AbATEJ IN THIS ISSUE EDITORS Edward C. Monahan Cris Brown CONTRIBUTING EDITORS Linda K. West West’s Review McGehee Isaacs PAGE Post-Conviction WEST’S REVIEW................. 4-6 Kevin M. McNally KENTUCKY COURT OF APPEALS.... 4 The Death Penalty Stump v.Commonwealth.,,.,,, 4 Gayla Peach Marshall v, Commonwelath.... 4 Protection & Advocacy KENTUCKY SUPREME COURT....... 4-6 Shepherd v. Commonwealth.... 4 J. Vincent Aprile, II Jones v. Commonwealth.,..... 4 Ethics Commonwealth v. Shepherd.... 4 Commonwealth V. Cook. 4 Michael A. Wright Chapman v, Richardson....... S Juvenile Law Commonwealth v. Bush. 5 Commonwealth v, Speakes..... 5 Donna Boyce Dr Lic.v.Bergman,.,..,.. 5 Sixth Circuit Highlights Dotson v, Commonwealth...... 5 Ernie Lewis Estes V. Commonwealth,.,.... 6 P/a/n View POST-CONY I CT ION: PAROLE REVOCATION........ 7-11 Patricia Van Houten DEATH PENALTY APPEALS......... 12-16 Book Review SIXTH CIRCUIT HIGHLIGHTS. 17 Thompson v, Kentucky........, 17 PLAIN VIEW.,........,,..,..,., 18-20 The Advocate is a bi-monthly publication of the Commonwealth v. Balsley,...., 18 of Public Advocacy. Opinions expressed Department Gross v, Commonwealth.,..,,,, 19 in articles are those of the authors and do not In re 0,J,, 19 necessarily represent the views of the Department. *. *., ... ., , State v.Schweich.,,......... 19 United States v.Steeprow,,.. 19 The Advocate welcomes correspondence on subjects People v, Daugherty. ... 20 treated in its pages. TRIAL TIPS -Battered Women,......,..... 21 -Batson . * . 23 -Using KY Constitution,,..,. 27 DEPARTMENT OF PUBLIC ADVOCACY - Imprisonment..., . 31 Perimeter Park -Ask Corrections, 34 1264 Louisville Road -Cases of Note.,.......,.,., 35 Frankfort, KY 40601 BOOK 38 "The Facts About Drugs end Office Receptionist 502-564-8006 A I c oh o I" Protection & Advocacy 502-564-2967 Toll Free Number 800 372-2988 for messages only. -3- West’s Review A Review of the Published Opinions of the Kentucky Supreme Court Kentucky Court of Appeals United States Supreme Court Linda K. West Kentucky Court of The Court of Appeals held that the 34 K.L.S. 13 at 13 trial court abused its discretion November 5, 1987 Appeal In view of "the pattern of behavior of the commonwealth’s attorney The Court announced its Intention CNTIMJANCE BASED ON WITH calculated to mislead the appellant to no longer transfer from the HOLDING DISCOVERY and deprive him of access to mater Court of Appeals to the Supreme Stump v. Conmionwealth ial containing potentially exculpa Court appeals involving a sentence - 34K.L.S, 14at8 tory material." TheCourt was of 20 years or more which are November 20, 1987 unpersuaded by the commonwealth’s erroneously perfected to the Court argument that appellant could of Appeals. Under Kentucky Consti Stump was convicted of sexual himself - have subpoenaed the re tution Section ilO2b the Ken abuse. Prior to trial, his motion cords: "We believe appeIlants tucky Supreme Court has exclusive for discovery of exculpatory evi counsel could reasonably expect the jurisdiction of such appeals. The dence, including evidence which court to enforce Its orders and Court stated that In the future it would reflect on the child witness’ should not be faulted for not might refuse to grant a transfer credibility, was sustained. After attempting to secure the records which would leave the Court some months passed without compli himsel f." Appeals no option but to dismis_ ance, the defense obtained an order for lack of jurIsdiction, A motion directing the commonwealth to DEFEPLANT’ S PRESENCE for belated appeal to the Kentucky respond in 14 days under pain of Marshall v.Conunonwealth Supreme Court would then be neces dismissal. Two months later the 34 K.L.S. 15 at 4 sary before the appeal could be trial court again ordered the December 4, 1987, properly perfected. The Court also commonwealth to respond on pain of noted that in such a situation contempt. At this point the com In this case, the Court held that sanctions against the "offending monwealth advised the defense that the defendant was denied a fair counsel" might be in order. the complaining witness had seen a trial when the trIal court gave the therapist and that the therapist’s jury an Allen charge out of the DOUBLE JEOPAIWY-SECOND DEGREE records had been subpoenaed, Three defendant’s presence. The Court ASSAULT AND FIRST DEGREE RIOT months later, on the day of trial, held that reversal was required Commonweaith v Cook the commonwealth sent for the under RCr 8.281 which provides 34 K.L.S. 13 at 10 records and admitted that the that "Ltlhe defendant shall be November 5, 1987 records had, in fact, never been present at every critical stage of subpoenaed. The records disclosed the trial..." Judge Wilhoit dIs The Court of Appeals reversed that the victim had experienced an sented. conviction of first degree epileptic seizure four months riot on the grounds that the same before the alleged abuse, which physical injury was used to sustain could affect her memory, and that Kentucky Supreme the riot conviction as the assault the victim denied that the alleged Court conviction, The Kentucky Supreme abuse had affected her, which, the Court reversed the Court of defense argued, suggested that JURISDICTION OF COURT OF APPEALS Appeals.