THE ADVOCATE A Publication of the Kentucky Department of Public Advocacy Advocacy Rooting Out Injustice Volume 13, #4 June, 1991 POVERTY IN KENTUCK Celebrating the 200th anniversary of our U.S. Bill of Rights on December 15, 1991 Celebrating the 100th anniversary of our KY Bill of Rights on September 28, 1991 FROM THE EDITOR: CLIENTS, POVERTY & IN THIS ISSUE PUBLIC DEFENDERS In our state of Ilinited resources, many Kentuckians are poor Public defenders have as their honor the providing of legal services to poor Kentucky citizens ac FEATURES cused of crime. In providãtg this service, itis important for us to know how poverty influences the client-attorney relation Poverty andits Impact Client-Attorney Relationship ships. Cessie Alfonso and Frank Badillo, on the .4 forensic and psychiatric social workers with much criminal justice experience, The Criminal Caseload in Kentucky 10 help us understand poverty’s influence in our work, and lead us to a client-centered approach: viewing our poor clients as per 1990 National Survey of Public Defender Offices 14 sons of dignity-worth. MANY POOR ACCUSED ARE UNREPRESENTED REGULAR COLUMNS In FY 1990, Kentucky public defenders represented 25% ofthe estimated 255,000 The Advocate Features: Rob Riley 3 persons charged with a crime in district court. Who represented the rest? Or were West’s Review 21 many ofthose 191,000 represented at all? Counsel is critical to the effective functioning of our criminal justice system. The Death Penalty: The Bill of Rights Slipping Away 24 When will wccomnsitourselvesloprovid tug counsel for allpoor Kentucky citizens? Upholding Capital Cases Regardless of Error 30 The 200th Anniversary ofthe 6th Amend ment would be a fitting time. ECM District Court Practice: Penalties Un4er 1991 DUI Amendments 31 Plain View: Search and Seizure Law 32 The Advocate isa bi-monthly publication of the Department of Public Advocacy, an mdc Evidence Law: Challenging the Seizure of Blood 35 pendentagencywithin the Public Protection and Regulation Cabinet. Opinions expressed in ar Alternate Sentencing 42 ticles are those of the authors and do not neces sarily represent the views of DPA. The Afro cats welcomes correspondence on subjects Ask Corrections 67 covered by it. If you have an articleour readers will find of interest, type a short outline or general description and send it to the Editor. Copynghx C 1991. Department of Public Ad TRIAL TIPS vocacy. All rights reserved. No part may be reproduced without written permission from DPA. Permission forseparately copyrighted ar The Kentucky Penal Code’s Disintegration 44 ticles must be obtained from that copyright holder. Presentence Interviews Update 46 EDITORS Legislative Highlights of 1991 Special Session 47 Edward C. Monahan, Editor 1984-Present Erwin W. Lewis, Editor 1978- 1983 Americans Behind Bars: International Incarceration Rate Comparisons .... 49 Crls Brown, Managing Editor, 1983- Present Young Black Men and The System 56 Contributing Editors A Study of the Decision-Making of Capital Jurors 58 Linda K. West West’s Review Allison Connelly Post-Conviction Kentucky Counties that Still Use Jury Commissioners 60 Barbara Hoilbaus Juvenile Law Steve Mix-kin Death Penalty Donna Boyce 6th Circuit Highlights Test Your Knowledge About Drugs 61 Ernie Lewis Plain View Dan Goyette Ethics President Bush to Wage War on Bill of Rights 61 Rob Riley In the Trenches David Niehaus Evidence Dave Norat Ask Corrections Defendants with Mental Retardation Need Interveners 64 Mike Williams F.Y.L George Sornberger StraightShooting Involuntary Civil Commitment Materials Available 66 Department of Public Advocacy Book Reviews: The Geometry of Violence and Democracy 68 1264 Louisville Road Frankfort, KY 40601 Critique 69 502 564-8006 800 582-1671 FAX # 502 564-3949 Advocate Ad Rates 63 Printed with State Funds KRS 57.375 JUNE 1991 I The Advocate 2 THE ADVOCATE FEATURES Rob Riley, LaGrange Trial Office ROB RILEY Rob Riley, Director of theLaGrange trial PUBLIC ADVOCATE SERVING CLIENTS office, is a 1982 graduate of the Univer TWO MASTERS sity ofTennessee School ofLaw. He has He, and theLaGrange officehe manages, been a public defender since graduation. Rob is disappointed that the very agency try to have clients come away from the He assumed the position as Director in that has the most zealous advocates of an criminal justice system having met 1990 with theresignation of Belie Niemi. individuals’ right to a fairprocess doesn’t "someone in a suit" that "neither pitied He is married to Natalie Kline and they take a leadership role in battling the them or abused them, nor tried to take have a 16 month old daughter, Morgan popular causes such as drunk driving something away from them." Rob’s Kline Riley. legislation and the war on drugs which caseload andcommitment allows him to are knee-jerk reactions to public pres spend time with clients and to work on THE WAR ON INDIVIDUAL sures: "solving the causes of problems as op LIBERTIES posed to merely reaching a good disposi Sadly the agency with the most infor tion in the immediate case." He attempts Rob was influenced by a Justice William mation and experience to expose this to "craft a resolution that is notonly good 0. Douglas biography- Independent problem to public debate, The Depart for the client, but actually benefits Journey, which talks about the belief ment of Public Advocacy, has society as a whole." that the Constitution was designed to remained suspiciously quiet, apparent keep government off the backs of the ly content to grumblequietly from the TAKING IT ALL IN STRIDE people. Rob observed that this concept sideline, rather than activ ely participate seems all but forgotten today: in the struggle. This, coupled with con Rob approaches the job, as he does life, tinued chronic underfunding, puts in with humor, "Where else can you work Asa society, we areall willing to volun digent clients at a fundamental disad this hard in a system that neither ap tarily relinquish our rights in the name vantage that only the most zealous preciates your efforts, nor understands of a perceived momentary security. Public Advocate can hope to even par your motives, for so little pay? Besides tially offset. that, you get to wear cool ties because l’hroughout our history, the justice everybody thinks you’re weird anyway." system has struggled with the concept The head of the Department, whose job of relaxeddiligence in theprotection of it is to advocate in favor of the most individual liberties in the face of a per unpopular group, criminal defendants, Rob is probably the most principled person ceived national problem. National serves at the pleasure of a Governor I know and he consistently governs his be hysteria fueled in partby self-interested who is elected and runs on a platform havior by what he believes. It is something politicians hascreated a War on Drugs, that, invariably, negativelyimpactsthat that I highly admire in him. He will not a War on Crime, a War on Rights, etc group. It is a system whereby com drink Coke or Coke products, because they that has led to the truth-in-sentencing placency is rewarded, but nothing is haven’t divested from South Mrica. He is laws, the DUI Bill, restriction of judi ever improved. not afraid to speak out for what he believes, cial discretion at sentencing, and the irregardless ol’ his belief’s popularity or ac ceptance. He is refreshingly honest. escalation of the death penalty. In the POLITICAL AGENDAS 1980s and 90s cherished personal Rob has a dogged determination, he’s very freedoms were, and are, sacrificed out Working at the Commonwealth Attorn energetic and fights hard for his clients. of a misguided belief that societal ey’s Office in Jefferson Co., Rob learned Time is not a factor for Rob. He stays with problems can be solved, at little or no that there are "good people doing an the client until the job is done. He gives cost, within prison walls. honorable task, but politics does corrupt 120%. Rob sees public defender work as a the system." Rob feels that no person viable career option, even though the money The criminal justice system needs to should be punished or notpunished, due is not the greatest. He has a sense of coin better protect each mitment and does a great job despite the individual’s rights, to "someone’s private political agenda." lack of support he feels from the leadership, not to protect the power of the state or as he tries to disregard politics and give his the interests of the majority. Rob believes public advocates need to client’s the best representation. find new ways to "rock the boat." He Rob holds out hope that "what is left of enjoys "seeing the effect, however slight, On his own iniative, Rob put together a DUT the Constitution can still be used by that continuous advocacy, on behalf of notebook for his client’s DUI cases, gather zealousAdvocates to slow thejuggernaut those whom others would ignore, can ing resourcesfrom all over the country .The of paranoia that is currently sweeping have on a seemingly unntoveable sys entire legal community of LaGrange relies on Rob for information on DUI cases. this country." tem." - BetteNiemi JUNE 1991 / The Advocate 3 Poverty and Its Impact on the Client-Attorney Relationship Cessle Alfonso Discussions ofpoverty typically focuson generally focus on the financial, educa also to the absence of educational struc several issues: tional, and familial. As criminal justice tures. Such structures are needed to en professionals, we must also include courage and support poor people - who What is poverty? within the definition of poverty, limita are at highest risk of AIDS and other Who are the poor? tions of cognitive, problem-solving diseases - in using themedical care avail Whatis therelationship betweenpover resources.