June, 1992 Volume 14, Number 4 THE ADVOCATE The Kentucky Department of Public Advocacy’s Journal of Criminal Justice Education and Research ! I3iç::çf tGe64tZ kepriniã by pennissii of Dts Moin RegSer .nd AMISL 20th Our Specialty is Criminal Defense Litigation Anniversary The Kentucky Department of Public Advocacy DPA is a state-wide public defender program thai was established at the recommendation of Governor Wendell Ford by the 1972 Kentucky General . Assembly. There are over 100 full-time public defenders in 16 offices across the state covering 40 Department of Public . Advocacy counties. Another 250 attorneys do pail-time public defender work in 80 of Kentucky s 120 lies. EVA is an independent agency located within the state’s Pmtection andRegulation Cabinet for administrative purposes. A Public Advocacy Commission oversees the Department. Yearly, DPA represents In excess of 101,000 poor citizens accused of crimes for offenses ranging from DU! to 1972-1992 capital murder. Day in and day out our attorneys and staff bring life to the individual liberties guaranteed by our United States and Kentucky Constitutions. The Kentucky Department of Public Advocacy is Kentucky’s statewide FROM THE EDITOR: public defender program dedicated to providing high quality legal repre We see ourselves as standing out in all of history as a people who cherish and protect sentation for Kentucky’s citizens freedom more than any other people. Our individual freedoms are insured through who are poor and accusedof commit our Bill of Rights of our United States Constitution and subsequent constitutional ting a crime. amendments like the 14th amendment with its due process and equal protection rights, and through the Bill ofRights of our Kentucky Constitution. December 15, Over 101,000 Kentucky citizens are 1992 is the 201st Anniversary of the United States Bill ofRights. September 28, served by the Department each year 1992 is the 101st Anniversary of the Kentucky Constitution’sBill ofRights. in an effort to insure advocacy root ing out injustice. SPECIAL RECOGNITION ANII A LIBERTY RESOURCE The Advocate is a bi-monthly publi This very special issue of our magazine celebrates these defining values, reminds us cation of the Department of Public of the historical reasons for the development of these precise individual protections, Advocacy, an independent agency and brings together rich resources and thinking for current and future use by within the Public Protection and Kentucky’s criminal justice system and by Kentucky’s leaders and teachers. We Regulation Cabinet. know of no current Kentucky resource of this magnitude which brings together so much information on our liberties. In addition to our regular criminal justice readers, Opinions expressed in articles are this issue of our magazine goes to every Kentucky school, over 1,000. Hopefully, it those of the authors and do not nec will be used for many years as a ready resource for our education system. Together, essarily represent the views of DPA. we need to work to remind ourselves and to remind the future beneficiaries and iniplementers of the origin and importance the guarantees of our fundamental freedoms. The Advocate welcomes correspon dence on subjects covered by it. If WHEN IS LIBERTY MOST AT STAKE? you have an article our readers will find of interest, type a short outline or The raw power ofgovernment vs. a person’s liberty takes on its most dramatic battle general description and send it to the when the state, through a prosecutor, seeks to imprison or kill a fellow citizen for Editor. conduct claimed to be criminal. The extent to which that criminal process is fair is the extent to which we really value liberty in our society. Copyright © 1992, Department of Public Advocacy. All rightsreserved. WHO IMPLEMENTS OUR RIGHTS? No part may be reproduced without written permission from DPA. Per Rights on paper are meaningless. They must be put into effect by someone. A criminal mission for separately copyrighted defense attorney or a public defender stands representing a citizen-accused against articles must be obtained from that the state’s desire to seize the liberty or life of one of its own. Defenders are the persons copyright holder. who implement the Bill ofRights, perhaps more than any other person in our society, when they stand up and defend an individual against the power of government. Let’s EDITORS recognize this, appreciate it, and remind others of how much we appreciate those who are willing to stand up for the poor, the outcast, the marginalized, and even the Edward C. Monahan, Editor 1984 - Present guilty and defenseless. The degree to which the state can take liberty from one of the Erwin W. Lewis, Editor 1978 - 1983 least of us is the degree to which our real liberty is at risk. As Martin Luther King Cris Brown, Managing Editor, 1983 - Present Tona Rhea, Graphics, Layout & Design has reminded us in his Letter from the Birmingham Jail, "Injustice anywhere is a threat to justice everywhere." Sometime this year pat a Bill ofRights patriot on the Contributing Editors back and thank them for fostering our freedoms. The liberty we enjoy is a product of their efforts. Linda K. West west’s Review Allison Connelly Post-Conviction PRODUCED THROUGH MUCH GENEROSITY Steve Mirkin Death Penalty Donna Boyce 6th Circuit HighlighLs Ernie Lewis Plain View This issue is published through the enormous generosity of two donors: 1 an Dan Goyette Ethics individual who prefers to remain anonymous, and who was attracted to donating Rob Riley in the Trenches $7,500 because of the special nature of this issue and its distribution to Kentucky’s David Niebaus Evidence Dave Norat Ask Corrections schools; and 2 The Kentucky Bar Foundation which has given DPA a $2,800 grant. Mike Williams F.Y.I. The Kentucky Bar Foundation is committed to improving the administration of Barbara Sutherland Infonnacion Resourcc Justice, educating the public about the legal system and enhancing the image of the profession. Its officers are: Carroll M. Redford, Jr., President; Robert W. Kellerman, President-Elect; William]. Kathman, Jr., Vice President; Thomas E. Turner, Secre Department or Public Advocacy tary[Freasurer; Carol M. Palmore, Immediate Past President. The opinions ex 1264 Louisville Road pressed are those of and not necessarily represent the views of The Franktort, KY 40601 the authors, do 502 564-8006 Bar Foundation or our anonymous donor. We are indebted to our donors for their 800 582-1671 immense generosity which will result in the education of many Kentuckians for the FAX # 502 564-7890 next generation on the essential nature of our liberty. ED MONAI-IAN JUNE 1992 IThe Advocate 2 FEATURES CHAPTER 1: 4 GEORGE NICHOLAS, FATHER OF KENTUCKY’S B114. OFRJGHTS by Dr. Thomas B. Clark 6 THE TEXT OF THE KENTUCKY BILL OFRIGHTS 1722, 1799, 1850 8 CHAPTER 2: 11 THE KENTUCKY BILL OFRIGHTS by Dr. Thomas D. Clark l3 THE BILL OF RIGHTS: OLD LESSONS AND NEW CHALLENGES by Pmfessor larks J. Ogletree 17 THE UNITED STATES SUPREME COURT THE MOST PRECIOUS BATFLE PLAN: THE BILL OF RIGHTS by Judith G. Clabes 21 GEORGE MASON, FATHER OF THE UNITED STATES CONSTITUTION by Judge John D. Miller 24 CHAPTER 3: 30 USING KENTUCKY’S BILL OFRIGHTS IN CRIMINAL CASES by Frank Heft 31 STATE CONSTITUTIONAL LAW CASES REPORTED, 1987- 91 STATE CONSTITUTIONS AND THE CRIMINAL DEFENSE LAWYER by John H. Hingson Ill 35 USING KENTUCKY’S SECTION lOby Ernie Lewis 40 USING KENTUCKY’S CONSTITUTION TO CHALLENGE EVIDENCE PRACTICES 44 by David Niehaus THOMAS JEFFERSON MIDDLE SCHOOL AND THE BILL OF RIGHTS 51 LRC’s 1987 SPECIAL COMMISSION OF CONSTITUTIONAL REVIEW’S BILL OF RIGHTS RECOMENDATIONS 52 INTERPRETING THE CONSTITUTION 68 CHAPTER 4: 69 THE FIRST AMENDMENT AND THE CRIMINAL JUSTICE SYSTEM by Roy Moore 70 CHAPTER 5: 77 THE RIGHT TO TESTIFY: THE NEWEST RIGHT by Timothy P. O’Neill - 79 CHAPTER 6: 85 TIlE COMPULSORY CLAUSE by Edward J. Imwinkelried 86 CHAPTER 7: 92 DOUBLE JEOPARDY by Rob Sexton CHAPTER 8: 98 THE RIGHT it ThIAL BY JURY by Rebecca DiLoreto 99 THE JURY ASSEMBLED by William A. Pangman 101 A NATURAL HISTORY OF THE FULLY INFORMED JURY ASSOCIATION by Don Doig 109 ANSWERING THE HARD QUESTIONS ABOUT FIJA by Lany Dodge Ill CHAPTER 9: 114 SECTION 2 OF THE KENTUCKY CONSTITUTION by Allison Connelly 115 CHAPTER 10: 118 OBSERVATIONS ABOUT THE RIGHT TO COUNSEL by JudgeEdward H. Johnstone 119 THE RIGHT TOCOUNSEL: ATRISK FOR KENTUCKY’S POOR by Ed Monahan 122 FREE CQUNSEL: A RIGHT, NOT A CHARITYby Jim Neuhard 126 CHRONOLOGY OF BICENTENNIAL DATES RELATED TOTHE RATIFICATION OF THE BILL OF RIGHTS 130 CHAPTER 11: 131 BEYOND THE BATTERED CONST1TUTIONby Nickolas Facaros 133 THE IMPORTANCE OF CIVIL LIBERTIES it THE FBI by William S. Sessions 136 AMERICA’S UNFUNNIEST HOME VIDEO 139 PRIVACY AND THE BILL OF RIGHTS Milton Hirsch 140 CHAPTER 12: 147 DO THE GUILTY GOFREE? by Robert Carran 148 HOW CAN YOU DEFEND THOSE CROOKS? by fed S. Rakoff 150 ANATOMY OF A CRIMINAL DEFENSE LAWYER by Emmett Colvin 153 REFLECTIONS ON CRIMINAL DEFENSE WORK by John Delgado 156 HE WAS FAITHFUL: WILLIAM H. SEWARD 158 CHAPTER 13: 159 RACE, SENTENCING AND CRIMINAL JUSTICE by Randolph N. Stone 161 REFORMING A DISCRIMINATORY CRIMINAL JUSTICE SYSTEM by Scott Wallace 163 CONSTITUTION CAME UP SHORT ON MATTER OF EQUALITY by Eleanor Holmes Norton 167 CHAPTER i4: 168 CHILDREN AND THE CONSTTTUTION by Barbara M. Hoithaus 169 CHAPTER 15: 172 THE FIFTH AMENDMENT by Keith Moore 173 JUNE 1992 IThe Advocate 3 HAPTER 1 flTnq3Lqi We, tile peopte of tIle Commonwealth offJCentucy,gratefuto tile 9ln4qhlty godfor civil, political, and re4qious liberties we enjoy, and invoicing tile continuance of these blessings, do ordain and establish this Constitution.