The Advocate
Journal of Criminal Justice Education & Research
Kentucky Department of Public Advocacy Volume 29, Issue No. 1 = January 2007
Got METH?
OR IS THAT A FALSE POSITIVE IN THE FIELD TEST?
© Wuat WENT Wronc? (Part IID):
EYEWITNESS MEMORY AND MISIDENTIFICATION
¢ DEFENDING YouR First SEXUAL ABUSE CASE
¢ 2006 STATEWIDE PoLL SHows KENTUCKIANS
OVERWHELMINGLY REJECT DEATH PENALTY
¢ KENTUCKIAN’S ATTITUDES TOWARD THE
DeaTH PENALTY: A 17-YEAR COMPARISON
THE ADVOCATE
Volume 29, No.1 January 2007
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Table of Contents
Got Meth? Or is that a False Positive in the Field Test?
—B. Scott West 4
What Went Wrong? (Part III):
Eyewitness Memory and Misidentification
— Melanie Lowe and Gordon Rahn
Defending Your First Sexual Abuse Case
— Elizabeth Bradley Barber and Susan M. J. Martin
13
2006 Statewide Poll Shows Kentuckians Overwhelmingly
Reject Death Penalty . eT
Kentuckian’s Attitudes toward the Death Penal
Comparison — Gennaro F. Vito
Capital Case Review — David M. Barron ....
Sixth Circuit Case Review — Dennis J. Burke ....
Kentucky Case Review — Sam Potter
Plain View — Ernie Lewis ...
Despite Fewer Lockups, NYC Has Seen Big Drop in Crime
— Michael Powell .... 40
Practice Corner ....
Public Advocacy Recruitment
EEE
Justice cannot be for one side alone, but must
be for both.
— Eleanor Roosevelt
a
THE ADVOCATE
January 2007
Volume 29, No. 1
The Advocate:
Ky DPA’s Journal of Criminal
Justice Education and Research
The Advocate provides education and research for persons serving|
indigent clients in order to improve client representation and in-
lsure fair process and reliable results for those whose life or liberty]
is at risk, It educates criminal justice professionals and the public
lon defender work, mission and values.
The Advocate is a bi-monthly (January, March, May, July, Sep-
ltember, November) publication of the Department of Public Ad
lvocacy, an independent agency within the Justice & Public Safety
ICabinet. Opinions expressed in articles are those of the authors
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|general description and send it to the Editor.
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ltion, However, no representation or warranty is made concern
ing the application of the legal or other principles communicated|
lhere to any particular fact situation. The proper interpretation!
lor application of information offered in The Advocate is within]
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lthe use to which others put the information and principles of,
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|Copyright © 2007, Kentucky Department of Public Advocacy,
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EDITORS:
Jeff Sherr, Editor: 2004 - present
Edward C. Monahan, Editor: 1984-2004
Erwin W. Lewis, Editor: 1978-1983
Lisa Blevins, Graphics, Design, Layout: 2000-present
Glenn McClister, Copy Editor: 2006-present
Contributing Editors:
Rebecca DiLoreto — Juvenile Law
Roy Durham/Sam Potter -Ky Caselaw Review
Dan Goyette — Ethics
Dennis J. Burke/David Harshaw — 6th Circuit Review
Ernie Lewis — Plain View
David Barron — Capital Case Review
Department of Public Advocacy
Education & Development
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Fax: (502) 564-7890
E-mail: Lisa.Blevins@ky.gov
Paid for by State Funds. KRS 57.375
FROM
THE
EDITOR...
a
Jeff Sherr
Scott West, Murray Office Directing Attorney, is back with
more information on defending meth cases. In Got Meth?
Or is that a False Positive in the Field Test, Mr. West explains
how a 2000 National Highway Transportation Safety
Administration funded study reveals the high risk for false
positives in on-site field tests for amphetamines (including
Methamphetamine).
Melanie Lowe and Gordon Rahn of the DPA Kentucky
Innocence Project offer Part III of their series on causes of
wrongful convictions in What Went Wrong: Eyewitness
Memory and Misidentification. This article uses the
Kentucky wrongful conviction of Herman May as the context
to explore the science, law, and the need for reform in the
procedures used for eyewitness identification. Jurisdictions
across the country are following the recommendations for
more reliable procedures made by the National Institute of
Justice in “Eyewitness Evidence: A Guide for Law
Enforcement,” and in 2003, “Eyewitness Evidence: A
Trainer’s Manual for Law Enforcement.”
Sexual Abuse cases are among the most difficult challenges
facing the criminal defense attorney. In Defending Your First
Sexual Abuse Case, Elizabeth Bradley Barber and Susan M.J.
Martin, from DPA’s Owensboro office, provide tips tailored
for attorneys new to these cases that will benefit the
experienced as well.
A survey conducted this summer by the University of
Kentucky Survey Research Center shows Kentuckians
overwhelmingly reject the use of the death penalty. In this
edition, we reprint the Kentucky Coalition to Abolish the
Death Penalty article based on the poll, along side an article
by University of Louisville professor Dr. Gennaro Vito
comparing the results of this survey to those conducted
since 1989. Hl
THE ADVOCATE
Volume 29, No. 1 January 2007
Got METH?
OR Is THAT A FALSE POSITIVE IN THE FIELD TEST?
B. Scott West, Directing Attorney, Murray
You had the highest hopes that your client Able would make
it. Probated only a few months ago, he seemed sincere
about his desire to get a handle on his addiction, and his
substance abuse counselor had written glowing reports
‘0 far. Able had consistently attended AA
and NA meetings, and the first few drug screens taken by
their probation officer had been negative.
about his suc
Then, last Monday, you were hit with the notice of
preliminary hearing to revoke his probation. The
allegation? A positive field test for methamphetamine.
When you talk to him, Able refuses to admit that he used,
and he will not stipulate to anything. Unlike so many other
clients who have acknowledged the usage of controlled
substances and just want you to “try to get rehab,” Able
remains defiant throughout. He is angry! At you, at the
judge, at the probation officer, at the world. Why? Because
there is NO WAY that he tested positive for
methamphetamine! Someone must have doctored the results,
or mixed up his urine with somebody else, or they're lying,
or someone slipped him a mickey, or something, because he
knows FOR A FACT that he has not any methamphetamine
for the 214 days since he was first arrested on this
possession charge. He's not admitting to anything, and if
he gets revoked, he wants an appeal. Furthermore, if you
dont believe him he wants a new lawyer. Challenge the
field test, he commands, and so you do. We want a lab to
test this, you say to the judge, we do not believe the results
are accurate. When asked why you believe that, you are
left with nothing other than “because the client insists he
had no meth.” So the judge orders the sample to be sent to
lab, although the client will remain incarcerated pending
the results.
This ever happen to you? If so, join the club, we’ve got
jackets. Just be glad that you insisted on having the sample
sent to the lab, because chances are, there actually has been
a false positive.
L The 2000 NHTSA Study: False Positives Do Occur
In 1997, the National Highway Transportation Safety
Administration funded a study to see if a sample of
commercially available on-site detection devices were of any
value to police officers who used them to test for drivers
during DUI stops. The study was done for cocaine,
methamphetamine, marijuana and
other controlled substances, and
according to the NHTSA, was the
first of its kind to so
comprehensively study on-site
devices and evaluate their
accuracy. The results were recited
in an October 2000 publication
entitled “Field Test of On-Site
Drug Detection Services,”
available on-line at
ae
www.nhtsa.dot.gov/people/
injury/research/pub/
onsitedetection/Drugs_Ch1.htm.
A. Methodology
The NHTSA contracted with ISA Associates, Inc. and the
University of Utah’s Center for Human Toxicology to conduct
a field test of five on-site testing devices. The five models
which were selected for testing were:
e The AccuSign®, manufactured by Princeton Biomedical
Corporation, Princeton, New Jersey;
e The OnTrak TesTcup-5® and
e The OnTrak TesTstik®, both manufactured by Roche
Diagnostic Systems, Inc., of Somerville, New Jersey;
e The Rapid Drug Screen®, manufactured by American
Bio Medica Corp, of Ancramdale, New York; and
e The Triage®, manufactured by Biosite Diagnostics, of
San Diego, California.
The 2000 report goes into great detail — far too much detail to
be restated in this article — as to why these five brands, out
of a total of sixteen candidates, were selected. Suffice it to
say that the selection process was thorough.
Then, five drugs or classes of drugs were selected for study:
THC-COOH (marijuana)
Cocaine
Amphetamines (including methamphetamine)
Opiates
PCP
Finally, the field test sites selected were Nassau County,
New York and Houston, Texas. These cities were selected
THE ADVOCATE
Volume 29, No. 1 January 2007
from several candidate venues after consideration of eight
factors, such as legal barriers to obtaining consent to obtain
urine samples in DUI arrests, the law enforcement agency’s
programs and procedures, and the willingness of the
department to participate and conform to the study’s
parameters.
Specific directions for specimen handling and data collection
were developed and followed. In New York, data collection
began in November 1998 and ended in November 1999. In
Houston, data collection took place between October 1998
and July 1999. In all, 800 participants were chosen for the
study. The demographics of 783 of the 800 individuals are
contained within the report and are irrelevant to our purposes
here. The result of each field test was recorded, and then
later confirmed with Gas Chromatography / Mass
Spectrometry (MS) technology.
In determining whether the field test was accurate when
compared to MS testing, the following definitions were
adopted:
A “false positive” was indicated when the device indicated
a positive result, but no drugs or metabolites were detected
in the MS confirmation test.
A “false negative” was indicated when the device tested
negative in the field, but the sample contained drug
concentrations as confirmed by MS testing which were
greater than or equal to the device screening cutoff.
Finally, an “unconfirmed positive” was indicated whenever
the device result was positive in the field, but the
concentration of the drug or metabolites, when measured by
MS was below the confirmation cutoff level.
B. Amphetamine and Methamphetamine Test Results
Overall, the field tests were fairly accurate over the five
classes of drugs which were screened, especially with regard
to cocaine and marijuana. In fact, there was only one false
positive for cocaine and two false positives for THC. When
it came to the amphetamines class, however, the results were
astonishing: As for false positives, “[o]f the 39 samples that
tested positive using the on-site devices, only 6 had MS
measurable concentrations of amphetamine,
methamphetamine or phentermine (the target analytes).”
Thus, 33 samples were false positive for methamphetamine,
using the study’s definition of “false positive.” That is an
error rate of 85%.
Interestingly, though, 16 of the field tests indicated a presence
of methylenedioxymethamphetamine (MDMA), or “ecstasy.”
Apparently, ecstasy can be a cause of a false positive. Still,
that leaves 17 out of 39 field tests which were false positives
without any MS confirmation of the target drugs. That is a
43% error rate, according to this study. (The error rates
listed in the study are different than these due to the
methodology of calculating error rates employed by the
study. The machines’ error rates were figured after taking
into account a// samples and a// drugs, and including the
statistical analyses for false positives, false negatives and
unconfirmed positives. This resulted in a much lower error
rate in general. Nevertheless, this article is interested solely
in determining the accuracy or inaccuracy of testing for
methamphetamine or amphetamines, and no other results.
Thus, taking the 39 positive field tests for which there was a
subsequent failure of MS to find amphetamines or
methamphetamines in 17 of those samples, the error rate
remains at 85% overall, and 43% where there is no illicit drug
whatsoever as determined by MS testing.)
There were no false negatives when it came to testing for
amphetamines.
IL Corroborating Resources
The NHTSA study, while billed as the “first” comprehensive
study, is not the only study. According to the Fall, 2000
issue of Drug Testing Quarterly, available on-line at
www.norchemlab.com, 53% of on-site testing devices, which
tested for amphetamine/methamphetamines, opiates, cocaine,
THC and PCP, produced false negatives. The article does
not break down which machines produced the false
positives, or which drugs were falsely found to have been
included in the specimens. However, the reference for this
statistic was given as “Accuracy of Five On-Site
Immunoassay Drugs-Of-Abuse Testing Devices,” E. Howard
Taylor, Ernest H. Oertli and Jana Wolfgang, Journal of
Analytical Toxicology, Vol. 23, March/April 1999.
To read what this author considers to be an indictment of
the Enzyme Multiple Immunoassay Test, or EMIT®, one of
the common methodologies on which field tests are based,
see “Problems of Urine Screening,” John Morgan, Journal
of Psychoactive Drugs, 1984, pp. 305-317, available on-line
at the Drug Policy Alliance page at www.lindesmith.org.
Simply (perhaps too simply) described, the presence of a
sought-after drug molecule or metabolite causes the body
to produce a specific immune chemical, or antibody, which
will bind to the drug. EMIT® screening harvests this drug-
enzyme complex, and produces a positive result for that drug.
However, Morgan states that positive reactions to a drug
using the EMIT® method may occur for several reasons,
including a carryover following a preceding sample that was
strongly positive, operator error (such as contamination or
failure to clean glassware), or because of the reactive
presence of other chemicals that bind to a particular antibody,
or finally due to endogenous human urinary enzymes that
mimic the effects of the detector enzymes.
Continued on page 6
THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 5
“Perhaps the technology that binds a large enzyme to a small
drug molecule is not error free,” Morgan states.
An internet search will yield many more sources — some
more credible than others — which will demonstrate the fact
that false positives for methamphetamine can and do happen.
Which leads to the question...
IL What Can Cause a False Positive
for Methamphetamine?
Not a week goes by that I am not asked this question by
someone, whether a fellow lawyer, a client, or a client's family
member. The answer I give is “virtually anything that
contains some presence of ephedrine, pseudoephedrine or
diet pills.” The answer I could give, according to the website
“The Vaults of Erowid,” by Erowid, is “Nyquil, Contact,
Sudafed, Allerest, Tavist-D, Dimetapp, Pheregan-D,
Robitussin Cold and Flu, Dexatrim, Accutrim, Bronkaid tablets,
Marax, Primatene Tablets, Afrin, Vicks inhaler, and other
prescription medications including Amfepramone, Cathne,
Etafediabe, morazone, phendimetrazine, phenmetrazine,
benzphetamine, fenfluramine, dexfenfluramine,
dexdenfluramine, Redux, mephentermine, Mesocarb,
methoxphenamine, phenetermine, amineptine, Pholedrine,
hydroymethamphetamine, Dexedrine, amifepramone,
clobenzorex, fenproyorex, mefenorex, fenelylline, Didrex,
dextroamphetamine, methpenidate, Ritalin, permoline, Cylert,
selegiline, Deprenyl, Eldepryl, or Famprofazone.
And, according to “The Vaults of Erowid,” kidney disease,
liver disease or diabetes can cause a false positive also. See
www.crowid.org.
Assuming that your prosecutor and / or judge are not Erowid
disciples (after all, it’s not like citing Robert G Lawson for an
evidence issue), and you want a more citable resource,
consider the disclaimer made by a company whose business
is selling home methamphetamine drug test kits, based on
EMIT® technology, found at www.ipassedmydrugtest.com.
Among the substances which can cause false positives, each
and every substance described by Erowid is listed in the
disclaimer, as well as a few additional drugs, Allerest, Tavist-
Dand Triaminic.
a
“[o]f the 39 samples that tested posi-
tive using the on-site devices, only 6
had MS measurable concentrations of
amphetamine, methamphetamine or
phentermine (the target analytes).”
——
The specifications sheet for the AccuSign® brand of on-
site testing, marketed by Princeton BioMeditech Corporation,
even lists ephedrine as one of the substances, if found in
concentrations of 200,000 ng/mL. Also, the AccuSign®
literature acknowledges that “there is a possibility that factors
such as technical or procedural errors, as well as other
substances in the urine sample [not listed in a table of
compounds for which the device will display positive results]
may interfere with the test and cause erroneous results.”
IV. The Hundred (100%) Solution: MS Spectrometry
Yes, Virginia, there is a possibility of a false positive in an
on-site field test device. And yes, it can be caused by some
of the over-the-counter household medications that are in
many of your clients’ medicine cabinets. Fortunately, or
unfortunately, depending on your client’s situation, there is
a virtually fool-proof method of determining whether it is a
false positive.
The Mass Spectrometry test, available at the KSP lab. Unless
there is human error (sample mix-up, or cross-contamination,
etc.), the mass spectrometer will tell you what the substance
is, actually. (Folks, if] am wrong about this, or over-stating
the accuracy of “the lab,” please write the editor and let us
know. I am more than willing to be educated. It’s advice
from folks like you readers that got me to questioning the
accuracy of these infernal field test devices in the first place!)
If your client is absolutely positive that his drug test is a
false positive, request that the Court order the
Commonwealth to forward the sample on for lab testing, and
appeal the Court if he will not do so.
But remember, a mass spectrometry test, of course, can be
exculpatory or inculpatory for your client. Our fictional client
Able would be well-advised to “fess up,” if in fact he knows
that he has ingested methamphetamine over the weekend.
Better that Able’s counsel spend whatever precious time he
has for the revocation hearing arguing mitigation and asking
for rehab and leniency, rather than waste it trying to persuade
the court that Nyquil® is the culprit in all this.
V. Conclusion
The on-site field testing device tests positive for
methamphetamine. Your client is positive that he has had
none. One of these positives is a false one. The only way to
be certain which positive is false is to insist that the sample
be tested at the lab, using mass spectrometry.
I’m positive.
THE ADVOCATE
Volume 29, No. 1 January 2007
Wuat WENT Wronc? (Part IID)
WronG PLACE, WRONG TIME:
EyYEwITNEss MEMORY AND MISIDENTIFICATION
By Melanie Lowe and Gordon Rahn, Kentucky Innocence Project
In the early morning hours of May 22, 1988, Herman May’s
life changed forever. At approximately 3:00 a.m. in the
backyard of a house in Frankfort, an unknown assailant raped
and sodomized a female University of Kentucky student.
The initial description of the attacker was that he was thin, in
his 20’s, had long, stringy, greasy dark brown hair and was
wearing a blue cap. Two police officers testified at trial about
the description given within minutes of the attack. The
investigating officer advised that the victim gave the same
physical description at the hospital but added that the
attacker’s hair was “chocolate brown.” Herman May was 17
years old in May 1988, and had bright red hair.
Once May was identified as a suspect, the investigating
detective flew to California where the victim was vacationing.
He showed the victim a photo lineup that included May’s
picture. The victim first picked out three pictures and began
a process of elimination that led to her identifying May as
her attacker. In October of 1989, May was convicted of rape
and sodomy and sentenced to concurrent 20 year sentences.
DNA testing changed Herman May’s life again on September
18, 2002. Franklin Circuit Court Judge Roger L. Crittenden
received the lab report, granted a new trial, and entered the
order releasing Herman May from prison. That same day,
Herman May walked out of the Kentucky State Penitentiary
and into the arms of his mother who had professed her son’s
innocence during the 13 years he sat in prison.
Is there a problem?
In every criminal case, the prosecution must prove the
defendant to be the perpetrator or participant in the crime.
Often, this evidence is presented in the form of the “in-court
identification.” In some cases, identification is inferred
through other evidence or testimony.' Evidence of
identification by eyewitnesses is second only to confession
in persuading jurors. Nonetheless, eyewitness
“misidentification” remains the leading causes of wrongful
conviction. In fact, of the first 130 DNA exonerations, 101 of
the cases are suspected to be the result of mistaken I.D.?
Certainly, some of the blame can be placed upon misconduct;
police knowingly disregarding proper techniques in order to
secure identification of a particular suspect. However, the
real culprit is expectation. We expect our brains to function
as cameras, recording what is experienced. Psychological
research demonstrates danger lies where fallible sensory
perception and human memory intersect with procedurally
suggestive influences.
Defense lawyers must understand the circumstances of
misidentification (mistaken identity) in an attempt to protect
their clients from becoming victims of eyewitnesses’
propensity to “misrepresent, misrecollect, and misinterpret.”
Defenders must be prepared to utilize motion practice,
discovery, and investigation in order to present jurors with
an accurate look at the identification circumstances. Effective
cross-examination of the eyewitness is crucial but effective
use of an expert along with an understanding of the
behavioral research can make the difference with a jury. *
Even those trained in critical observation, like police officers,
erroneously identify in exigent circumstances. Courts often
underestimate the dangers inherent in eyewitness
identification testimony and place responsibility for
intelligently weighing such testimony with the jury.
Unfortunately, the average individual called to serve as a
juror has no understanding of the risks of misidentification
and the effects of suggestion. Defenders must not only
obtain understanding of suggestive investigative
procedures but the pitfalls inherent in the human memory.
Then, criminal defense practitioners must successfully impart
this knowledge to jurors.
Empirical Examples
In 1902, a criminologist at Berlin University, von Liszt,
conducted one of the first experimental studies into human
memory and eyewitness identification. Unbeknownst to his
students, von Liszt staged an altercation between two
students. The staged exchange culminated in a gunshot.
When the Professor restored order, he asked students to
describe what they had observed. Thus began a long series
of studies designed to understand memory and recall of
human experience.
On the evening of December 19, 1974, viewers of a local NBC
newscast were shown a twelve-second documentary film.
In it a man wearing a hat, leather jacket, and sneakers lurks in
a door while a young woman makes her way down a hallway.
Continued on page 8
THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 7
Suddenly, the man bursts from the doorway, grabs the
woman’s purse, and runs directly toward the camera. Viewers
were shown a “lineup” of six “suspects,” asked to call a
number, and either pick one of the suspects or advise that
the perpetrator was not present in the “lineup.” Professor
Robert Buckhout of Brooklyn College, who had arranged
the experiment, decided to unplug the phone after receiving
an overwhelming 2,145 calls. The “thief,” placed at position
number two, received 302 votes or 14.1 percent. “The results
were the same as if the witnesses were merely guessing,”
wrote Professor Buckhout in an article analyzing the
experiment called “Nearly 2000 Witnesses Can Be Wrong.”*
The most significant lesson of all of these studies is that
innocent individuals can be wrongfully convicted based
upon eyewitness identification evidence. A study was not
necessary to convince Herman May of this fact. The legal
field can learn much from psychological research on the
subject of memory and witnesses.
Lessons from Psychology
Researchers have identified four factors personal to
witnesses which affect the accuracy of eyewitness
identification: (1) Perception; (2) Memory; (3)
Communication; and (4) Candor.
Perception
The first element of memory is perception. The mind can
only recall that which is perceived by the senses. Of course,
the actual limitations of the physical senses restrict the
perception and the resulting memory. For instance, the blind
man can neither perceive nor remember what can be seen.
Aside from the effects of physical limitations, expectation
also molds perception. In this way, the witness tends to
perceive what he anticipates and he believes is expected.
Witnesses understand the judicial system’s fact-finding
process depends upon “perception, memory and
recollection” of sworn testimony. If the witness does not
locate the face she saw during the crime, she will likely
succumb to the psychological tendency to look for a similar
face in the identification procedure (See discussion of
Relative Judgment Theory).
“Biases, prejudices, interests and motives” influence
eyewitness perception. Psychologists believe perception
to be a process of decision making affected by every facet of
the individual, his environment, and circumstances of the
perceived event. Where all of this influences the perception,
it must also affect memory. The gaps in perception compel
witnesses to rely upon experience and expectation in order
to create complete memory for identification and testimony.
Relevant research in this area has focused upon how the
situational fear, anxiety, and terror impact the perceptions of
the identification witness. The individual is less able to
perceive and retain detail during a stressful incident than
during ordinary circumstances. Of course, this flies in the
face of conventional courtroom wisdom regarding victim
memory of a crime. How often do witnesses bolster an
identification or detail by saying “I’ll never forget it” and
how often does the prosecutor argue that the experience is
“burned” upon the memory of the victim by the extremely
emotional nature of the event? The body’s physical answer
to stress, the rush of energy associated with the autonomic
nervous system’s “fight or flight” response, prepares the
victim to survive the experience while actually impairing the
ability to remember the experience. In short, emotions
disorganize the thought proce: “The more pronounced
the stress or excitement the more likely the event will make
an impression on the person and the more likely that his
perception and recall will be unreliable.”*
In the Herman May case, the criminal incident must have
been overwhelmingly emotional for the victim. She was
attacked by a man she presumably had never seen and in a
violent and vicious manner. She was whisked off to a
hospital, subjected to medical testing, and questioned by
police about the most personal of matters. Within a few
short hours, the young woman had experienced one of the
most traumatic of experiences. Psychological research
indicates that what she perceived would have been jumbled
by the emotional experience.
Memory
Researchers have discovered that memory is not a static
entity and is subject to a variety of external influences. In
addition to a number of organic problems, memory may be
otherwise lost. Psychological manipulation often aides in
recovery of memories, however, if not performed properly,
such processes can take advantage of the witness’
suggestibility. In the realm of eyewitness identification,
suggestion can be created intentionally and unintentionally.
The unwitting suspect is particularly vulnerable when the
opportunity to observe by the witness was insufficient.‘
A witness who wants to be a good citizen or a victim who
wants to believe his attacker has been apprehended are
particularly susceptible to suggestion by untrained or over-
zealous law enforcement. Under these circumstances,
eyewitnesses experience extreme pressure to choose
someone from a lineup that may not include their attacker.
Consider the Herman May case, where the officer flew
thousands of miles to show the victim a photo array. Without
aword from the detective, the victim likely assumed that her
attacker must have been present in the lineup. Otherwise,
why would the detective have come such a long way?
THE ADVOCATE
Volume 29, No. 1 January 2007
Most people would agree that memory distorts and dims
over time. It is also true that our brains discard information
when it remains unused for a period. For example, can you
recall all of the phone numbers you have ever known or the
names of all your childhood friends? In the same manner,
the period of time between the crime and the lineup or the
identification and the testimony may weaken the eyewitness”
memory. Psychologists use the terms “sharpen” and “level”
to describe the effects of time on elements of memory. The
mind tends to exaggerate critical aspects of the perceived
event in proportion to the significance within the original
event. This is called “sharpening.” Likewise, less critical
aspects of the original perception tend to diminish in
proportion to the original perception. Psychologists call
this “leveling.” In regard to recollection of the human face,
psychological research indicates that the memory highlights
(sharpens) distinct features while minimizing (leveling) that
which is ordinary. Both of these phenomena continue to
occur from the time of perception until the retrieval of the
memory. Of course, to a great degree what a particular witness
perceives as critical and in turn sharpens may vary from
person to person. In this way, perception can be as unique
as the individual. This explains how two people witnessing
the same crime can provide accurate yet sharply different
physical descriptions. One witness may notice a tattoo while
the other a torn red sweatshirt. Ask either witness about the
color of the perpetrators hair or if he had beard and each
would be unable to recall.
Psychologists in the area of memory research have
documented the “recency effect.” This theory indicates
that items most recently presented to a subject will be
remembered best. In the timeline of criminal procedure,
identifications (like lineups, showups, photo arrays) take
place after the crime and therefore may result in stronger
memories than the crime itself. In addition, the mind is capable
of fusing memories. Behavioral scientists call this
“unconscious transfer.” When an eyewitness to a crime
later sees a person who looks familiar, the mind may associate
this familiarity with the emotional memory of the crime. The
result can be a confused memory and an erroneous
identification.”
Researchers have shown that when the actual culprit of a
staged crime is in the photo lineup that more than half of the
field of witnesses will actually pick that culprit. What is
alarming, however, is that if the culprit is removed from the
photo array with no replacement photo inserted into the
array, a high percentage of witnesses will pick someone else
rather than saying they have no choice.* This is known as
the theory of “relative judgment.”
The theory is relatively simple: Eyewitnesses tend to identify
the person from the lineup who, in the opinion of the
eyewitness, looks most like the culprit relative to the other
members of the lineup.’ Just as in Herman’s case,
eyewitnesses, when presented with a photo lineup or even a
live lineup, have a tendency to compare the photos with
each other rather than to simply rely upon their memory.
Gary Wells a leading researcher in the field of eyewitness
memory conducted studies confirming the relativity bias in
lineups. Notice in the table below that when the true culprit
of the staged crime was in the photo array (#3) that 25% of
the eyewitnesses still picked the wrong person. Remove the
culprit from the lineup and an astounding 68% chose the
wrong person. Relative judgment may be a simple theory
but it is certainly not benign. Innocent people do get
identified and convicted because of it.
Communication
Communication is the ability to convert the memory of an
experience into a verbal description of what was perceived.
The most common problem in this area involves the witness’
inability to articulate the descriptive facts required to reach
adequate investigative conclusions. Defense counsel must
be alert to communication disabilities such as language
barriers, insufficient vocabulary, deficient intellectual
functioning, and communication disorders. Such eyewitness
problems create a fertile area for cross-examination.
Table 2.
Replacement Condition
Rate of Choosing Lineup Members when a Target Is Present versus Removed-without-
Percent of identification of lineups members 1-6
Removed Without Replacement
1 2 3 4 5 6 No choice
Target (lineup member 3) 3% 13% 54% 3% 3% 3% 21%
Present
Target (lineup member 3) 6% 38% 12% Mm 5% 32%
Source: Wells (1993)
Continued on page 10
THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 9
Candor
The effective identification witness is candid. Typically, the
problems inherent in the identification process are not the
result of deliberate plan by the witness but arise of honest
mistake. Simple sincerity becomes the greatest danger of
misidentification evidence. Counsel’s best defense lies in
demonstrating limited perception or improperly conditioned
recollection. Absent such hot-button problems with the
identification or process, defenders risk bolstering the
honestly mistaken I.D. through cross-examination.
Use of Experts
In many cases, the eyewitness testimony may be unshakable.
The defender realizes that there is nothing to be gained in an
attack on the witness’ perception, recollection, and
communication. The witness ends up appearing truthful,
unbiased and without motive to lie. Then what? Eyewitness
identification experts can provide juries with an
understanding of the forensic problems inherent in the
identification method and physiological/psychological
process of the particular I.D. There is a significant list of
experts whose research and testimony is available to criminal
defense attorneys: Gary Wells, Professor of Psychology at
Towa State University; Professor Elizabeth Loftus; Professor
Roy S. Malpass of the Eyewitness Identification Resources
Laboratory at the University of Texas, El Paso; Professor
Jonathan Schooler of the University of Pittsburg; Professor
Steven Penrod of the John Jay College of Criminal Justice in
New York; and a number of other up and coming labs and
researchers. These types of experts provide testimony
explaining how the brain processes, stores and retrieves
information; analysis of the power of suggestion; insight
into faulty recollection. Of course, defenders should expect
the prosecution to secure the services of experts like Dr.
Ebbe B. Ebbesen, Professor of Psychology at the University
of California, San Diego. Defenders should be prepared to
conduct Daubert" hearings in order to secure use of such
experts. When locating a false memory expert, defenders
should begin in the academic realm. Several of the leading
centers of research and professors have established
websites.
Essential Caselaw
Identification procedures must meet Constitutional standards
before Courts can allow identification testimony. For example,
the prosecution cannot utilize testimony to reinforce its case-
in-chief if the identification is made in violation of the
Defendant’s Sixth Amendment rights. (See Moore v.
Illinois)'' Counsel must assert the client’s rights by filing a
motion to suppress the identification evidence.
The Wade-Gilbert Rule” held that a post-indictment lineup
in which the defendant is a participant is a “critical stage” of
the proceedings triggering the Sixth and Fourteenth
Amendments right to counsel. The remedy is per se exclusion
where the procedure is conducted without counsel and
without a valid waiver. Additionally, in-court identification
testimony from the witness who participates in such a
identification proceeding will only be allowed if the
prosecutor can demonstrate, based upon a totality of the
circumstances, that the in-court identification is based upon
a source independent the illegal lineup. The Supreme Court
set forth the following factors to establish the sufficiency of
the “independence”: the witness’ prior opportunity to view
the accused; degree of certainty of the witness’ identification
at the line-up; presence or absence of inconsistencies
between the original description of the perpetrator by the
witness and the actual appearance of the accused; the length
of time between the first opportunity to view the perpetrator
and the un-counseled identification; and the use of
suggestive methods at the identification.
The Supreme Court limited the Wade-Gilbert Rule by saying
that the right to counsel did not attach after arrest but before
adversary criminal process commenced (whether by formal
complaint, preliminary hearing, indictment, information, or
arraignment).'* The practical effect of this limitation is to
render the Wade-Gilbert Rule null as authorities simply skirt
the rule by conducting line-ups before charges are formalized.
It is also important to note that Wade-Gilbert does not apply
when the accused is in custody on a formally-charged crime
and is placed in a line-up for a crime which is at the informal,
investigative stage.
Kentucky Courts utilizes a two-step procedure for
determining whether identification testimony violates a
defendant’s due process rights.'> First, the Court must
analyze whether the pre-identification procedures were
“unduly suggestive.” If not, then the testimony is allowed.
If the procedures were “unduly suggestive,” the testimony
may still be admissible based upon a “totality of the
circumstances” look at whether the identification was reliable
despite the suggestive procedure.'* This analysis is subject
to the same five-factor test set forth in Neil v. Biggers."”
Reform
So, how can the justice system minimize mistaken eyewitness
identification? As early as 1998, four simple rules were
recommended.'* These rules were recommended after the
authors studied the first 40 exonerations by DNA testing
and found that 36 involved mistaken eyewitness
identification. The recommended rules were:
10
THE ADVOCATE
Volume 29, No. 1 January 2007
The person who conducts the lineup or photo spread
should not be aware of which member of the lineup or
photo spread is the suspect (also known as the double-
blind procedure).
Eyewitnesses should be told explicitly that the person
in question might not be in the lineup or photo spread
and therefore should not feel that they must make an
identification.
The suspect should not stand out in the lineup or photo
spread as being different from the distracters based on
the eyewitness’ previous description of the culprit or
based on other factors that would draw extra attention
to the suspect.
A clear statement should be taken from the eyewitness
at the time of the identification and prior to any feedback
as to his or her confidence that the identified person is
the actual culprit.
2
3)
4)
The reform movement today also recommends the sequential
lineup. Dr. Gary Wells, professor of psychiatry at Iowa State
University and one of the authors of the aforementioned
article, is one of the leading proponents of the double-blind
sequential lineup procedure. In the sequential lineup, the
eyewitness views photos one at a time, making a decision
on each photo based upon the witness’ memory, thus
eliminating the comparisons found in the relative judgment
theory.
Dr. Wells has spoken with law enforcement agencies,
prosecutor associations, and other organizations across the
country and through his efforts as well as others such as
Barry Scheck, The Innocence Network and Innocence
Projects across the nation, the movement for reforming
eyewitness identification procedures has gained momentum.
New Jersey was the first state to adopt the blind sequential
lineup procedure statewide. The New Jersey Supreme Court
recently ruled that in addition to the lineup procedures that
all procedures must be documented and highly recommended
the videotaping of the procedures. The Court ruled that
unless a written record is kept, the fact that an eyewitness
picked the defendant out of a line-up or a series of
photographs will not be admissible at trial.'”
Several other jurisdictions and law enforcement agencies
across the country have also adopted blind sequential lineup
procedures. One pilot program in Hennepin County,
Minnesota, had its data analyzed by an eyewitness scientist
at Augsburg College in Minneapolis, who co-wrote an
academic article with Hennepin County Attorney Amy
Klobuchar and Hilary Lindell Caligiuri, an Assistant
Hennepin County Attorney.
“The article, “Improving Eyewitness Identifications:
Hennepin County’s Blind Sequential Lineup Pilot Project,”
reports that the scientific evaluation of the year-long pilot
project resulted in fewer witnesses identifying “fillers” (or
lineup subjects who are not the actual suspect), which shows
that blind sequential lineups reduce the number of witnesses
who guess when identifying a suspect—and reduce the
number of innocent people identified in lineups.””°
In another pilot project, the Chicago Police Department
published a report suggesting that the Chicago pilot program
casts doubt on recent reform of eyewitness identification
procedures.*! However, the report is looked upon with
skepticism by many in the field.
The Attorney General of the State of Wisconsin, in
partnership with the Frank J. Remington Center at the
University of Wisconsin Law School, developed and
published a Model Policy and Procedure for Eyewitness
Identification, which sets out guidelines for eyewitness
identification procedures.” The Wisconsin Model Policy
addresses many issues of eyewitness identification but
expressly adopts the double-blind sequential lineup
procedure with other requirements to minimize the
identification of innocent persons. Following the release of
The Chicago Report, the Wisconsin Attorney General’s
office issued a response that basically said The Chicago
Report did not address four of Wisconsin’s Model Policy
requirements and that its findings regarding the double-blind
sequential procedure actually reinforced the position for the
procedure.”*
“Even though the Chicago Report does not challenge any
of these principles, the report relies on the higher rate of
suspect identifications in non-blind lineups to support a
claim that non-blind procedures are superior. However, this
result—more identifications of suspects in non-blind
lineups—is exactly what the research on suggestion predicts,
and exactly the problem double-blind administration was
designed to prevent.”
Will Kentucky join the reform movement? Two men in
Kentucky have been exonerated through DNA testing. In
BOTH cases, mistaken eyewitness identification was key to
their convictions. Some would say that only two cases ina
state is not a bad error rate. But to those two men, it was a
100% error rate and cost them, collectively, 20+ years of their
lives. And the issue is not limited to just DNA cases.
Innocent men and women in Kentucky and across the nation
are being sent to prison based upon mistaken eyewitness
identification and any reform that can minimize the chances
of an innocent person spending a single night in jail is worth
considering.
Endnotes:
1. Ray Moses, “Misidentification: The Caprices of
Eyewitness Testimony in Criminal Cases”
http://www.criminaldefense.homestead.com/
eyewitnessmisidentification.html. (2001)
http://www.innocence project.org/causes/
Continued on page 12
THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 11
3
Ray Moses, “Misidentification: The Caprices of
Eyewitness Testimony in Criminal Cases”
http://www.criminaldefense.homestead.com/
eyewitnessmisidentification.html. (2001)
Jim Dwyer, Peter Neufeld, Barry Scheck, Actual
Innocence, Doubleday (2000) p. 43-45
Ray Moses, “Misidentification: The Caprices of
Eyewitness Testimony in Criminal Cases”
http://www.criminaldefense.homestead.com/
eyewitnessmisidentification.html. (2001)
Ray Moses, “Misidentification: The Caprices of
Eyewitness Testimony in Criminal Cases”
http://www.criminaldefense.homestead.com/
eyewitnessmisidentification.html. (2001)
Ray Moses, “Misidentification: The Caprices of
Eyewitness Testimony in Criminal Cases”
http://www.criminaldefense.homestead.com/
eyewitnessmisidentification.html. (2001)
Wells, GL. (1993). What do we know about eyewitness
identification? American Psychologist, 48, 553-571.
Wells, G.L. (1984). The psychology of lineup
identifications. Journal of Applied Social Psychology,
14, 89-103.
). Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993).
. 434U.S. 200 (1977); Gilbert v. California, 388 U.S. 263
(1967).
. Derived from United States v. Wade, 388 U.S. 218 (1967)
and Gilbert v. California, 388 U.S. 263 (1967).
. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34
L.Ed.2d 401,411 (1972).
|. Kirby v. Illinois, 406 U.S. 682 (1972), affirmed by Moore
v. Illinois, 434 U.S. 220 (1977).
15.
16.
17:
18.
19.
Dillingham v. Comonwealth, Ky., 995 S.W.2d 377, 383
(1999) quoting Thigpen v. Cory, 804 F.2d 893, 895 (6th
Cir.1986) and Simmons v. United States, 390 U.S. 377,
384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1274 (1968).
Id. quoting Stewart v. Duckworth, 93 F.3d 262, 265 (7th
Cir.1996) and Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct.
375, 382, 34 L.Ed.2d 401,411 (1972).
Adopted by Kentucky in Savage v. Commonwealth,
Ky., 920 S.W.2d 512 (1995).
Wells, G.L., Small, M., Penrod, S., Malpass, R.S., Fulero,
S.M., & Brimacombe, C.A.E. (1998). Eyewitness
Identification Procedures: Recommendations for
Lineups and Photospreads, Law and Human Behavior,
Vol. 22, No. 6.
Justices: Witness IDs Must Be Written Down. Star-
Ledger, August 1, 2006.
. Study of Year-long Pilot Project Shows that Key
Eyewitness Identification Reforms are Effective. The
Advocate, pg. 23, Volume 28, No. 5, September, 2006.
. Mecklenberg, S.H. Report to the Legislature of the
State of Illinois: The Illinois Pilot Program on
Sequential Double-Blind Identification Procedures.
March 17, 2006.
Office of the Attorney General, Wisconsin Department
of Justice Bureau of Training and Standards for Criminal
Justice. Model Policy and Procedure for Eyewitness
Identification. Comprehensive review & Analysis of
Best Practices. September 12, 2005.
Office of the Attorney General, Wisconsin Department
of Justice Bureau of Training and Standards for Criminal
Justice. Response to Chicago Report on Eyewitness
Identification Procedures. July 21, 2006.
Id. at3.
The National Legal Aide and Defender Association’s Forensics Library has a wealth of infor-
mation for use in eyewitness identification cases at
http://www.nlada.org/Defender/forensics/for_lib/Index/Eyewitness%20ID#Eyewitness%20ID
Including:
Eyewitness ID Pleadings
Eyewitness ID Websites
Eyewitness ID Court Opinions
Eyewitness ID Research Articles
Eyewitness ID Wrongful Convictions
Eyewitness ID Government Expert Materials
Eyewitness ID Training Materials
Eyewitness ID Legislative Reforms
Eyewitness ID Defense Expert Materials
Eyewitness ID Illinois Study
a |
THE ADVOCATE
Volume 29, No. 1 January 2007
DEFENDING Your First SEXUAL ABUSE CASE
By Elizabeth Bradley Barber and Susan M. J. Martin, Owensboro
You’ve just been assigned to represent a person charged
with Sexual Abuse, First Degree. You go to the county
detention center to discuss the case with your new client at
which time he tells you that he will no way, no how, plead
guilty to this charge. With a sex abuse case, you normally
know early on whether you will be preparing for trial. After
all, the discovery usually consists of the child reciting a
scenario of sex abuse, such as an inappropriate touching,
and the client denying the allegation. Normally, no new
discovery arises which would cause a client to decide to
plead guilty. No eyewitness testimony exists, except that of
the alleged victim, and there is no physical evidence, such
as DNA.
So you know from the onset that you must prepare for trial,
but you are not sure where to start. You begin to feel a little
overwhelmed. I understand completely. In this article I will
share some tips that have proved very beneficial to me in
preparing and trying child sex abuse cases.
Is The Child Competent To Testify?
In March 2004, I tried my first sex abuse case. At the time, I
was the first attorney in Department of Public Advocacy’s
Owensboro Trial Office to try this type of case. Where did I
turn for guidance? The Department of Public Advocacy’s
Circuit Court Manual. I found it to be a major resource and
would recommend it to any defense attorney in the same
situation. The Manual gave me the idea of filing a Motion
for a Competency Hearing of Child Witnesses. The results
of my first competency hearing proved so helpful that I have
filed such motions in practically every case I’ve had with a
child witness since then.
Thus far, I have never had a judge find a child incompetent
to testify, but from the competency hearings, I have gained
priceless insights on how to question particular child
witnesses at trial. For example, during the competency
hearing, I ask the child about prior events in his life, such as
the schools he has attended, the names of his former teachers
and details about important birthdays he has had. If the
prosecutor objects, you can respond to the court that you
are merely asking these questions to aid the court in
determining if the child is competent to testify under
Kentucky Rule of Evidence 601, “Competency.” In fact,
KRE 601 requires that the child be able to perceive matters
“accurately,” “recollect facts,” “express himself so as to be
understood, either directly or through an interpreter,” and
have the “capacity to understand the obligation” of telling
the truth.' According to Professor Robert G. Lawson, the
competency issue requires a “thoughtful analysis of whether
the child is intellectually capable of perceiving and
remembering the specific facts that comprise [his] testimony.”?
The child’s answers to questions about his former teachers,
schools and birthdays can only assist the court in analyzing
the child’s intellect, perceptions and memory. While
preparing for the hearing, keep in mind that there may be
more than one issue at stake. The issue may be the child’s
capacity to testify in the here and now (at trial), or at the time
of the alleged crime, or both.*
As a defense attorney, you may find the child’s answers to
everyday questions about schools and birthdays to be
invaluable. For example, if the child’s trial testimony
concerning his allegations of sexual abuse is vague, you
may ask him leading questions about the schools, teachers
and birthdays you discussed with him during the
competency hearing. Consider the following types of
questions:
1. Where do you go to school this year?
2. Who’s your teacher this year?
3. Have you ever gone to any other schools? Which ones?
4. Who was your teacher last year? The year before? How
about when you were in kindergarten?
5. What’s your favorite holiday?
6. What did you get for Christmas last year? What about
the year before?
7. What did you dress up as for Halloween last year? What
about the year before?
8 How old are you now? What did you do on your last
birthday? How did you celebrate it? Who came to your
birthday party? What kind of gifts did you get?
9. Last summer when school was out, did you and your
family do anything special? Did you go anywhere?
What did you do while you were there? How long did
you stay?
If the child gives specific, detailed testimony about things
such as holidays or birthdays, you can point out in your
closing argument that in contrast, the child is vague about
the alleged abuse because his allegations just aren’t true.
Coritinued on page 14
THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 13
On the other hand, what if the child’s direct testimony is
specific and detailed about the sexual abuse? You may still
work it to your advantage in cross examination. Ask the
child how many times he has gone over these events with
his parents, social workers, counselors, police officers, and
commonwealth attorneys. In closing argument, you can
argue that the child gave specific details about the sexual
abuse because he had gone over those details so many times
with so many different adults.
A competency hearing also gives you the opportunity to let
the child witness become comfortable in your presence.
While questioning the child, you can tell him that you have
a son, daughter, niece or nephew about the same age. Or,
when asking the child about a certain birthday, interest or
vacation, you can add a comment about your own children’s
experiences when they were the same age. If you don’t have
children, comment about your own childhood experiences
(favorite birthday, vacation, etc.) when you were the same
age. Your goal is to let the child witness know that you are
not his enemy. He does not need to be scared of you or your
questions. If the child is comfortable with you at the
competency hearing, your cross-examination at trial will go
much more smoothly because the child will be more at ease.
Consequently, the jury will view you, the defense attorney,
more favorably.
Critical Investigation Above And Beyond The Discovery
No matter how many documents you receive in discovery
from the Commonwealth Attorney, in a child sex abuse case,
a great deal of documentation about the child’s allegations
exists elsewhere. When a child alleges that he has been
sexually abused, many agencies other than the police and
prosecutor get involved, and they tend to create a lot of
records. For example, the Cabinet for Health and Family
Services in Frankfort, Kentucky, will have records of social
workers and others who investigated the child’s allegations.
The Cabinet’s records may show inconsistencies in the
child’s statements (including retractions) and reasons why
the child may be fabricating his allegations. The easiest way
to obtain such records is to contact the Cabinet in Frankfort,
obtain a release form called “Authorization for Disclosure
of Protected Health Information,” have your client sign the
form and send it back to the Cabinet4 with an Open Records
request letter.’ It may take several weeks or even months to
receive Cabinet records, so make your request early.
Anticipate that you may be asked to provide other
documentation such as the child’s birth certificate or a court
order.
What should you do if the Cabinet or other entity (the child’s
school, counselor or another private organization) tells you
its records can only be released by court order? In such
cases, file a motion asking the trial court to do an in camera
review of the records, after which the court would disclose
any records containing favorable or impeachment material
to defense counsel.6 The Commonwealth’s obligation to
disclose such material includes records that are actually in
the hands of other state agencies involved in the
investigation and prosecution of your client.7 If the trial
court denies your motion or only allows you to view a limited
number of documents, be sure to request that any
undisclosed documents be sealed into the court record, to
preserve the (non-disclosure) issue for appellate review.
Requests for the in camera review of records are important
because school and counseling records often show
inconsistencies in the child’s allegations. They may show
that the child has a tendency to make up stories or seek
attention. Or, he may dislike his mother’s boyfriend or
stepparent. He may simply want to live not with your client,
but with a grandparent who gives him expensive toys. In
addition, these records often answer questions such as, has
one of the child’s parents or other care givers ever been
charged with abuse and neglect? Has the child alleged that
people other than your client have sexually abused him?
Cabinet records generally contain such information, which
allows you to poke significant holes in the Commonwealth’s
case. Cabinet records involving allegations against parties
other than your client may also be informative, but you will
need a court order to obtain them.
Voir Dire: Tips on Choosing Jurors
Prior to trial, you might want to consider having a formal or
informal trial “team.” Enlist co-counsel, preferably someone
who has tried this type of case, to sit beside you at counsel
table. Get copies of motions your co-counsel has filed in
sexual abuse cases and let that attorney explain the
importance of such motions to your particular case. Ask
your co-counsel to help you draft a set of voir dire questions.
Chances are that your co-counsel can give you the voir dire
questions that he or she has used in the past. Voir dire is
your opportunity to persuade the jurors to think in a certain
direction. Do not underestimate the value of effective voir
dire.
In drafting your voir dire questions, decide what kind of
people would be the perfect jurors for your case. Then, ask
your investigator, co-counsel, and a secretary to review the
juror qualification forms and earmark the people you will
want to strike. For example, you might consider striking
social workers, school teachers or others who work with
children. Or, people who work with crime victims of any
kind. You might consider striking people who have children
the same age as the child witness. In any event, during voir
dire, concentrate on asking your questions and making a
meaningful connection with the jurors. Have your
investigator and co-counsel take notes on the potential
jurors’ comments and body language.
14
THE ADVOCATE
Volume 29, No. 1 January 2007
As you begin drafting your voir dire questions, you might
consider the following suggestions:
1. Have any of you ever been a victim of sexual abuse or
sexual assault?
Do any of you currently work with victims of sexual
offenses? Have any of you ever worked with victims of
sexual offenses in the past?
Are any of you related by blood or marriage to a victim of
asexual offense?
Do any of you know anyone, either a friend or
acquaintance, who was the victim of a sexual offense?
Does anyone disagree with this statement: Children can
distort reality and fantasy. That is, a child can believe
that something happened, when in reality, it didn’t happen.
6. Does anyone disagree with this statement: Children will
sometimes lie about being abused.
Would any of you find the testimony of the child who
will testify today to be more truthful just because he’s a
child?
Does anyone disagree with this statement: A person will
sometimes lie about another individual in order to get
that person in trouble or to keep from getting
themselves in trouble?
Does anyone disagree with this statement: A child may
sometimes lie about being sexually abused in order to try
to get attention?
. Does anyone disagree with this statement: A child may
sometimes lie about being sexually abused in order to try
to please someone else, such as a parent?
. Does anyone disagree with this statement: A child may
sometimes get ideas about being sexually abused from
watching television shows?
Is there anyone who doesn’t believe that a child could
be talked to and questioned so much about sexual abuse
that the child could end up believing that he was abused
when in fact, he wasn’t?
. The case before you today consists of counts
of Sexual Abuse in the First Degree. Each count carries a
potential penalty of years in prison. The
minimum Mr. Client could receive if found guilty would
be years. Is there anyone right now, before
hearing the testimony, that could not give the minimum?
The maximum Mr. Client could receive would be
years. Is there anyone right now, before hearing the
testimony, that would automatically give the maximum
penalty?
Will The Child Testify Face-to-Face Or By Video?
Prior to trial, depending on the circuit judge and prosecutor
in your case, you many find it necessary to file a motion in
limine to ensure that the child witness testifies face-to-face
with your client and the jury.* I have had jury trials where
the courtroom bailiff has stood to the side of the witness
box, squarely between my client and the child witness, or
the child’s parent has sat right next to the witness box while
the child testified. In both instances, I made a
contemporaneous objection pursuant to Coy v. Jowa,’ but I
find it preferable to file a motion in limine prior to trial to try
to avoid such situations altogether. In such motions, I argue
that under Coy v. Jowa, the Sixth Amendment of the United
States Constitution and the Fourteenth Amendment Due
Process clause, putting any object or person between the
child witness and my client is prejudicial. It gives the
appearance that the child is afraid of my client, must be
protected from my client and that my client is guilty, just as
if he were wearing an orange jumpsuit.'°
In any event, if the Commonwealth Attorney wants a child
witness to testify by video, for example, he or she must (a)
make a motion requesting a hearing, and (b) demonstrate
during the hearing that a “compelling need” exists for the
child to testify by video."
A “compelling need” exists only where the child witness will
experience trauma, and the source of the child’s trauma is
the defendant’s very presence. Significantly, the child’s
trauma must be so substantial that the child’s ability to
communicate will be impaired.'?
Pinpointing and Emphasizing Reasonable Doubt
The best opportunity you have to emphasize all the points
of reasonable doubt in your case is in closing argument.
While drafting your closing, review the discovery and the
other records you’ve obtained, looking for details such as
whether the child procrastinated in reporting the alleged
sexual abuse. If so, you can argue in closing argument that
the delay in reporting is because the child’s allegations are
not true. Ifthe child’s statement to law enforcement officers
is not tape recorded in some way, consider bringing that up
in cross-examining the officers. For example, did you
document the specific questions you asked the child? Did
you write down the child’s answers verbatim? Or, did you
only make notes that summarized the child’s statements?
How much time elapsed between the time you interviewed
the child and wrote your report? Who was present when
you questioned the child? A parent or care giver having an
axe to grind against your client? Posing such questions in
cross-examination allows you to argue in closing that the
absence of a taped statement from the child gives rise to
reasonable doubt about the accuracy of the child’s
statements.
Continued on page 16
THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 15
Before trial, brainstorm your case with as many people as
possible. Your jurors will not be defense attorneys, so go
over the facts of the case with your support staff as well as
other attorneys. I am always amazed at the ideas my
colleagues give me, including ones I mention or emphasize
in closing arguments. As the primary attorney on a case, it
can sometimes be easy to overlook the obvious. Have your
co-counsel take notes during the trial which you can review
during recesses. Through these notes, you will think of
additional questions to ask witnesses and even more points
of reasonable doubt to argue in closing.
When cross-examining the child witness, do not take an
argumentative, overly aggressive approach. Ask questions,
elicit answers and bring out any inconsistencies during your
closing argument instead of arguing with the child that he
hasn’t been consistent in describing events of sexual abuse.
Arguing with the child will get you nowhere, except on the
bad side of the jurors.
Your closing argument gives you the opportunity to tell
your client’s story one last time. I suggest that you approach
it just that way. Tell the facts of your client’s case in a story
to the jurors, stopping along the way to point out facts that
give rise to reasonable doubt. Although you may be tempted
to, never attack the child witness, law enforcement officers,
or the prosecuting attorney. Such attacks can offend the
jurors, making your argument less effective.
Endnotes:
1. See KRE 601. See also City of Covington v. O'Meara, 133
Ky. 762, 119 S.W. 187 (1909), Hendricks v. Commonwealth,
550 S.W.2d 551, 554 (Ky. 1977) and Gaines v. Commonwealth,
728 S.W.2d 525 (Ky. 1987).
2. See Robert G. Lawson, The Kentucky Evidence Law
Handbook, § 3.05 at 149 n22 (3d ed. 1993).
3. Id. at 149.
4. The Cabinet’s address and phone number are Cabinet for
Health and Family Services, Department of Community Based
Services, Records Management Section, 275 East Main Street,
Section 3E-G Frankfort, KY, 40602, (502) 564-3834.
5. See KRS 61.870 et seq.
6. Information regarding the credibility of a prosecution
witness is “the sort of exculpatory evidence which is subject
to disclosure” to defense counsel. See, e.g.,Eldred v.
Commonwealth, 906 S.W.2d 694, 701-02 (Ky.,1994) (citing
Davis v. Alaska, 415 U.S. 308, 320-21 (1974)), partially
overruled on other grounds by Commonwealth y. Barroso,
122 S.W.3d 554 (Ky. 2003).
7. Id. at 702 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 55-56,
107 S.Ct. 989, 1000 (1987) and Ballard v. Commonwealth, 743
S.W.2d 21, 22-23 (Ky. 1988)).
8. See, e.g., Coy v. lowa, 487 U.S. 1012, 108 S.Ct. 2798 (1988),
Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691 (1976), Price v.
Commonwealth, 31 S.W. 3d 885 (Ky. 2000) and
Commonwealth v. M.G., 75 S.W.3d 714 (Ky. App. 2002).
9. See Coy v. lowa, 487 U.S. 1012, 108 S.Ct. (1988).
10. See, e.g., George v. Commonwealth, 885 S.W.2d 938, 942
(Ky. 1994) (Stephens, J., concurring).
11. See KRS 421.350(5).
2. See Maryland v. Craig, 497 U.S. 836, 856-57 (1990). Il
Kentucky Association of Criminal Defense Lawyers
Membership Information
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Bar Member 1-5 Years $75.00 Legislative/Rules
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Strike Force
Contact:
KACDL
Charolette Brooks
Executive Director
444 Enterprise Drive, Suite B
Somerset, KY 42501
Tel: (606) 677-1687/(606) 678-8780
Fax: (606) 679-3007
Web: kacdl2000@yahoo.com
THE ADVOCATE
Volume 29, No. 1 January 2007
2006 StTaTEWIDE PoLL SHows KENTUCKIANS
OVERWHELMINGLY REJECT DEATH PENALTY
Kentucky Coalition to Abolish the Death Penalty
Kentuckians have overwhelmingly rejected the death penalty
as the most appropriate punishment for those convicted of
aggravated murder in response to a polling question asked
in the Summer 2006 Kentucky Survey conducted by the
University of Kentucky Survey Research Center.
Interviews were completed with 836 Kentuckians over 18
years old between August 14 and September 6, 2006. The
survey question gave respondents a choice of the penalties
now available to jury members who sit for death penalty
trials.
Two-thirds of the respondents, 67.6%, rejected the death
penalty as the MOST appropriate penalty for aggravated
murder. Less than one-third think the death penalty is the
MOST appropriate penalty. Only 2% selected none of the
available penalties.
The center column in the chart presents a breakdown of the
respondents answers, with a plurality of Kentuckians, though
not a majority, preferring life without the possibility of parole
forever. Just over ten percent believe life without parole for
25 years is MOST appropriate; 5.6% felt a life sentence with
parole possible in 20 years is MOST appropriate;
The Kentucky Coalition to Abolish the Death Penalty will
continue to press lawmakers to reflect the clear desire of
Kentuckians by repealing the law that allows the use of the
death penalty. Kentuckians overwhelmingly support the
other sentences already available to juries in aggravated
murder cases. These severe penalties hold the guilty
accountable and protect society.
Abolishing the death penalty will also insure that Kentucky
does not execute any innocent persons, as it almost did in
the case of Larry Osborne. Kentucky’s Supreme Court
unanimously ordered a new trial for Osborne after rejecting
his death sentence and the guilty verdict imposed by a jury
that used hearsay evidence to convict him. The jury in the
second trial found him not guilty and Osborne regained his
freedom.
Reprinted from ABOLITION NOW!, Volume 5, Issue 3
December 2006, www.kcadp.org
and 15.5% selected a term of 20—S0 years with
no parole possible until 85% of the sentence is
served as the MOST appropriate penalty.
KCADP asked Dr. Gennaro Vito, a professor at
the University of Louisville, to take this new
polling data and compare its results to the results
of polls conducted in Kentucky since 1989. His
article appears inside on pages two and three.
Death
KY Death Penalty Attitudes 2006
= Not Sure
= 20-50 Years
= LWOP for 20
LWOP for 25
Yrs
s Life WO
Parole
Death Penalty
Other than Death None of the
Above
Questions Asked by University of Kentucky Research Center
If a person is convicted in Kentucky of aggravated murder, which of the following punishments do you
personally think is MOST appropriate: The death penalty:
ife in Prison without Parole forever; Life in
Prison with the Possibility of Parole for 25 years; Life in Prison Without the Possibility of Parole for 20
years; 20 to 50 years in prison with no parole possible until 85% of sentence is served.
17
THE ADVOCATE
Volume 29, No. 1 January 2007
KKENTUCKIAN’S ATTITUDES TOWARD THE
DeaTH PENALTY: A 17-YEAR COMPARISON!
Nearly 7 out of 10 Kentuckians favor a long term sentence
(e.g., Life without Parole) over capital punishment for convicted murderers.
By Gennaro F. Vito
Support for Death Penalty Wanes to 30.5%
Support for the death penalty in Kentucky declined from
35.9% to 30.8% over 10 years from 1989 to 1999 and remained
consistent at about 30 percent for the seven years since
1999. This decrease may be due to the publicity given to
cases, like Illinois, where innocent individuals were
incarcerated on death row. This level of support for the death
penalty is also substantially lower than the lowest figure
ever registered in a national poll on capital punishment, 38
percent support in 1966.
A17-Year Comparison
70%] a70%,
60%+~| 53%
ABS
50%+~ | ™
40%t |
30% 4
20% +
10%.
0% t=
9 1997 1999 2006
1 Death Penalty ]
Long Term Sentence
@ Not Sure ‘parole tro 25 years (
pote of parce or
Yeas hprean wh ro parce pose (15
Support for Long Term Sentences
Sharply Increases to 67.6%
Over the same time period, Kentuckians have revealed a
distinct preference for long term sentences like life without
parole for convicted murders, rising from 46 percent in 1989
toa peak of almost 68 percent in 2006. Again, the popularity
ofa long term sentence may be due to the fact that, if an error
is discovered, it is not irrevocable. Executions cannot be
reversed.
A comparison of death penalty attitudes of Kentuckians over
the past two surveys (seven years) by demographic groups
was also completed. Here, the differences between age
groups for the past two surveys are presented.
In general, death penalty support was lowest in both surveys
for the youngest age group in both years (18-21). Support
for a long term sentence was highest for this group. Support
for capital punishment generally increased with age with the
exception of the oldest group whose levels of opposition
paralleled that of the youngest age group. Traditionally,
youths and elders have expressed little support for capital
punishment.
It is notable that death penalty support never rose to a
majority position for any age group for either survey.
On the other hand, a long term sentence was the preferred
penalty for every age group across both surveys.
Opinions by Year and Age
Bi1% 665% gh
Although it never rose to a majority status for
any educational level in either year, death penalty
support appeared to increase with the level of
education for both years.
However, in the 2006 survey, Kentuckians with
an advanced degree had the lowest level of
support for capital punishment (about 19 percent)
and the highest level of support for a long term
sentence (79 percent) as a punishment for
18-21 2-23 3-39 40-49 50-59 0-69 70
convicted murderers. This finding has also been
im Death Penalty 1989 (Death Peraity 2008
BlLong TemSertence 2006 Nat Sure 1999
BLong TermSentence 1999)
Not Sure 2006
consistently true in national polls on capital
punishment.
THE ADVOCATE
Volume 29, No. 1 January 2007
Opinion By Educaton
B
#
6T8%
SSMASIADITEED Ss
2
fA
i
Vy
f
4
H
f
Advanced
Decras
Laee fan HghSchool Some Colege allege
High School Greduale Graduate
Conclusion
These four survey results over 17 years clearly reveal
that the majority of Kentuckians favor a long term
sentence over the death penalty for convicted
murderers. This support has intensified over the past
two waves of surveys between 1999 and 2006,
increasing 21.6% from 1989 to 2006. Policy and
decision makers at all levels of government, especially
legislators and criminal justice operatives, should take
note of the consistency of these findings as the people
of Kentucky are expressing their opinions clearly.
Endnote:
1B Death Panaky 1200 TS Death Perally 2008 Ti Long Term Sentence 1000]
O Long TermSentence 20068 mw Not Sure 1999 Not Sure 2008
Death Penalty Rejected
Regardless of Age, Education, Race
Traditionally, whites have registered higher levels of support
for capital punishment than minority groups. This pattern
held for both survey years. Once again, support for capital
punishment failed to assume a majority position in either
year.
Blacks had the lowest level of support for the death penalty,
especially in the 2006 survey and the highest level of support
for a long term sentence for convicted murderers. Racial
bias has been a consistent research finding in studies of
capital sentencing, including in Kentucky where the research
results contributed to the passage of the Racial Justice Act.
1. The Survey Research Institute of the Urban Studies
Institute at the University of Louisville conducted the 1989,
1997 and 1999 surveys. In October of 1989, data were
collected from a probability sample of 811 Kentucky
households (margin of error= + 2.5%). The 1997 survey was
conducted in July and had an N of 709 (margin of error = +
2.5%). The 1999 survey was conducted in December and
had an N of 909 (margin of error = + 4.8%). The 2006 survey
was conducted in August and September by the University
of Kentucky and had an N of 836 (margin of error = + 3.3%).
Gennaro F. Vito is a Professor in the Department of Justice
Administration at the University of Louisville. He also serves
as a faculty member in the Administrative Officer’s Course at
the Southern Police Institute, Vice Chair, and Graduate
Program Coordinator. He holds a Ph.D. in Public
Administration from The Ohio State
Opinion By Race
University. Active in professional
100% 82.60%
LLL
Jd,
IPs
organizations, he is a past President and
Fellow of the Academy of Criminal Justice
Sciences.
Reprinted from ABOLITION NOW!,
Volume 5, Issue 3 December 2006,
www.keadp.org Bh
20% N
ont
White Bleck Other
m Deain Penaty 1999 1 Death Penalty 2006
© Long TermSeatence 1988 8 Long Term Sentence 2008
@ Not Sure 1999 @ Not Sure 2006
EE — — ———
Capital punishment, like the rest of the criminal justice system, is a government
program, so skepticism is in order.
—George Will
a
19
THE ADVOCATE
Volume 29, No. 1 January 2007
CapitaL Case REVIEW
By David M. Barron, Post Conviction Branch
Supreme Court of the United States
Ayers v. Belmontes,
127 S.Ct. 469 (2006)
(Kennedy, J., for the Court, joined by, Roberts, C.J., Scalia,
Thomas, and Alito, JJ.; Scalia, J., filed separate concurring
opinion, joined by Thomas, J.; Stevens, J., dissenting, joined
by, Souter, Ginsburg, and Breyer, JJ.)
Belmontes argued that California’s special sentencing factor
(k), “which requires the jury to consider any other
circumstances which extenuates the gravity of the crime even
though it is not a legal excuse for the crime,” prevented the
jury from considering predictions of continued good acts if
given a life sentence, and that his case was distinguishable
from prior cases upholding factor (k) because his case was
not restricted by the Anti-Terrorism and Effective Death
Penalty Act. The Court held that there was no reasonable
likelihood that jurors interpreted the instruction to preclude
consideration of forward-looking mitigation evidence
concerning Belmontes’s ability to positively contribute to
society if given a life sentence.
Scalia, J., concurring, joined by Thomas, J.: They reiterated
their belief that the Eighth Amendment does not prohibit
limitations on the sentencer’s discretion to consider all
mitigating evidence. Aside from that, Scalia also reiterated
that a jury need not be able to give effect to mitigating evidence
in every conceivable manner in which the evidence might be
relevant.
Supreme Court Grants of Certiorari
Brewer v. Quarterman,
No. 05-11287, cert. granted October 13, 2006,
decision below, 442 F.3d 273 (5th Cir.)
1. Do the former Texas “special issue” capital sentencing
jury instructions — which permit jurors to register only a “yes”
no” answer to two questions, inquiring whether the
defendant killed “deliberately” and probably would constitute
a “continuing threat to society” - - permit constitutionally
adequate consideration of mitigating evidence about a
defendant’s mental impairment and childhood mistreatment
and deprivation, in light of this Court’s emphatic statement in
Smith v. Texas, 543 U.S. 37, 48 (2004), that those same two
questions “had little, if anything to do with” Smith’s evidence
of mental impairment and childhood mistreatment?
2. Do this Court’s recent opinions in Penry v. Johnson, 532
U.S. 782 (2001) (“Penry II”) and Smith, both of which require
instructions that permit jurors
to give “full consideration
and full effect” to a
defendant’s mitigating
evidence in choosing the
appropriate sentence,
preclude the Fifth Circuit from
adhering to its prior decisions
- - antedating Penry I and
Smith - - that reject Penry
error whenever the former |}
special issues might have
afforded some indirect
consideration of the defendant’s mitigating evidence?
3. Has the Fifth Circuit, in insisting that a defendant show
a predicate to relief under Penry that he suffers from a mental
disorder that is severe, permanent or untreatable, simply
resurrected the threshold test for “constitutional relevance”
that this Court emphatically rejected in Tennard v. Dretke,
542 U.S. 274 (2004)?
4. Where the prosecution, as it did here, repeatedly implores
jurors to “follow the law” and “do their duty” by answering
the former Texas special issues on their own terms and abjuring
any attempt to use their answers to effect an appropriate
sentence, is it reasonably likely that jurors applied their
instructions in a way that prevented them from fully
considering and giving effect to the defendant's mitigating
evidence?
Abdul-Kabir v. Quarterman,
No. 05-11284, granted October 13, 2006,
decision below, 418 F.3d 494 (5th Cir.)
Presents the exact same questions presented as Brewer.
Smith v. Texas,
No. 05-11304, cert. granted October 6, 2006,
decision below, 185 S.W.3d 455 (Tex.Crim.App.)
1. In Smith v. Texas, 543 U.S. 37 (2004), this Court summarily
reversed the Texas Court of Criminal Appeals and found
constitutional error under Penry v. Lynaugh, 492 U.S. 302
(1989) (Penry I), and Penry v, Johnson, 532 U.S. 782 (2001)
(Penry II). Is it consistent with this Court’s remand in this
case for the Texas Court of Criminal Appeals to deem the
error in petitioner’s case harmless based on its view that jurors
were in fact able to give adequate consideration and effect to
petitioner’s mitigating evidence notwithstanding this Court’s
conclusion to the contrary?
20
THE ADVOCATE
Volume 29, No. 1 January 2007
2. Can the Texas Court of Criminal Appeals, based on a
procedural determination that it declined to adopt in its original
decision that this Court then summarily reversed, impose on
remand a daunting standard of harm (“egregious harm”) to
the constitutional violation found by this Court?
Schriro v. Landrigan,
No. 05-1575, cert. granted September 26, 2006,
decision below, 441 F.3d 638 (9th Cir.)
Respondent Jeffrey Landrigan actively thwarted his attorney’s
efforts to develop and present mitigating evidence in his capital
sentencing proceeding. Landrigan told the trial judge that he
did not want his attorney to present any mitigation evidence,
including proposed testimony from witnesses whom his
attorney had subpoenaed to testify. On post-conviction
review, the state court rejected as frivolous an ineffective
assistance of counsel claim in which Landrigan asserted that
if counsel had raised the issue of Landrigan’s alleged genetic
predisposition to violence, he would have cooperated in
presenting that type of mitigating evidence.
1. In light of the highly deferential standard of review
required in this case pursuant to the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), did the Ninth
Circuit err by holding that the state court unreasonably
determined the facts when it found that Landrigan “instructed
his attorney not to present any mitigating evidence at the
sentencing hearing”?
2. Did the Ninth Circuit err by finding that the state court’s
analysis of Landrigan’s ineffective assistance of counsel claim
was objectively unreasonable under Strickland v.
Washington, 466 U.S. 668 (1984), notwithstanding the absence
ofany contrary authority from this Court in cases in which (a)
the defendant waives presentation of mitigation and impedes
counsels attempts to do so, or (b) the evidence the defendant
subsequently claims should have been presented is not
mitigating?
Stays of Executions
Cooey v. Taft,
No. 06-4527 (6th Cir. Dec. 1, 2006)
(Henderson stay)
(Norris and Clay, JJ., Batchelder, J., dissenting)
The federal district court had allowed him to intervene in the
underlying action, which has been stayed for more than a
year while the state pursues an interlocutory appeal in the
Sixth Circuit. Without any explanation, the court granted
Jerome Henderson’s emergency motion for a stay of execution
so he could pursue a challenge to the chemicals and
procedures used in lethal injections. The state of Ohio has
sought rehearing en banc. Henderson is scheduled to be
executed at 10:00 a.m. on December 5, 2006. When this article
went to press, no final word on the status of Henderson’s
execution date has been issued.
Batchelder, J., dissenting: Batchelder could not find any
basis under the law to grant the motion and cannot reconcile
the majority’s decision to grant the stay with the court’s prior
decision to vacate the district court’s grant of a stay to Jeffrey
Lundgren less than six weeks ago. The district court denied
Henderson a stay because it believed it was bound to do so
by the Sixth Circuit’s order vacating Lundgren’s stay of
execution. According to Batchelder, Henderson presented
the identical situation as Lundgren and thus the law of the
case doctrine bars the court from granting Henderson’s motion
for a stay of execution.
Note: Lundgren moved to intervene in the Cooey lethal
injection litigation after his execution was scheduled while
Henderson moved to intervene prior to his execution being
scheduled. It is unknown whether this explains the apparent
inconsistency between Henderson and Lundgren.
Guy LeGrand: North Carolina state court judge granted a 60
day stay of execution so LeGrand’s competency to be
executed could be determined after mental health evaluations
are conducted. LeGrand also raises the issues of whether it
is constitutional to execute a severely mentally ill person.
Charles Anthony Nealy: Execution stayed by the Texas
Court of Criminal Appeals based on claims of innocence and
prosecutorial misconduct and remanded to the trial level court
to determine if a witness’ recantation is credible. A witness
who testified at trial came forward and said that the prosecutor
had intimidated and threatened him prior to trial, including
that he would be charged with capital murder if he did not
testify against Nealy.
Johnson v. Bell,
No. 05-6925 (6th Cir., Oct. 19, 2006)
(Boggs, C.J., Norris and Clay, JJ.)
In an unpublished order with no explanation, the court granted
Donnie Johnson’s motion for a stay of execution pending
disposition of the appeal of the denial of his Federal Rules of
Civil Procedure, Rule 60(b) motion, which alleged violations
of the state’s obligation to disclose material, exculpatory
information under Brady v. Maryland.
United States Court of Appeals for the Sixth Circuit
Grants of rehearing en bane: The court granted rehearing
en banc in Getsy v. Mitchell, 456 F.3d 575 (6th Cir. 2006)
[discussed in the November 2006 edition of The Advocate],
vacating the panel decision in its entirety. The Court also
recently held en banc oral argument in Van Hook v. Anderson,
another capital case where the panel decision was vacated
by the grant of rehearing en banc.
Slaughter v. Parker,
467 F.3d 511 (6th Cir. 2006)
Continued on page 22
21
THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 21
In an order without any explanation, rehearing en banc was
denied by a 7-7 vote. Judge Cole wrote a dissenting opinion
that was joined by Martin, Daughtrey, Moore, and Clay, JJ.
Cole, J., dissenting: “We are uneasy about executing anyone
sentenced to die by a jury who knows nearly nothing about
that person. But we have allowed it. We are also uneasy
about executing those who commit their crimes at a young
age. But we have allowed that as well. We are particularly
troubled about executing someone who likely suffers from
brain damage. We rarely, if ever, allow that - - especially when
the jury is not afforded the opportunity to even consider that
evidence. Jeffrey Leonard, known to the jury only as ‘James
Slaughter,’ approaches the execution chamber with all of these
characteristics. Reaching this new chapter in our death-
penalty history, the majority decision cannot be reconciled
with established precedent. It certainly fails the Constitution.
This Court’s seven to seven stalemate regarding the en banc
petition, however, leaves this precarious decision intact.”
Judge Cole continued by saying, “[d]isagreements about
whether counsel’s ineffectiveness prejudiced a capital
defendant are commonplace; the majority’s holding on this
point, however, creates two particular conflicts that should
have been resolved by the en banc Court. First, it conflicts
with cases concluding prejudice occurred where, although
some mitigating evidence was presented, evidence of severe
childhood abuse and diminished mental capacity was not.
This conflict is particularly stark where the absent evidence
includes, as here, possible brain damage to the defendant.
Slaughter will be executed in violation of this clear law. Second,
the holding presumes a defendant’s self-serving testimony -
- even when he testifies to spare his own life - - has the same
impact regardless of whether other witnesses corroborate it.
That conflicts with the Supreme Court’s recognition in Skipper
vy. South Carolina, 476 U.S. 1, 8 (1986), that a defendant’s
testimony is inherently suspect and a jury will naturally
discount it. The image presented to the jury was a man so
loathed that nobody - - not even his family - - would
corroborate his testimony or plead for his life. In reality, his
family - - including the younger siblings he protected as a
child - - would have testified in this way, but they never knew
he was on trial. This Court nonetheless approves his
execution.”
Finally, Cole argued that “[w]thout en banc review, we are left
with authority that stands for an absurdity: “A petitioner
fails to present a federal claim for relief when citing to the
precise constitutional text that is the genesis of the claim
itself.” (emphasis in original). According to Cole, [t]he
majority’s decision effectively overrules Sixth Circuit law
without even discussion of the cases it overrules.
Cooey v. Taft, No. 06- (Oct. 23, 2006): An Ohio federal
district court judge granted Jeffrey Lundgren’s motion to
intervene in the Covey lethal injection litigation and issued
an injunction barring Lundgren’s execution so he could pursue
the litigation. Despite the underlying action being stayed for
more than a year while Ohio pursues an interlocutory appeal
in the Sixth Circuit Court of Appeals, the three-judge panel of
Suhrheinrich, Siler, and Gilman vacated the injunction. No
written opinion was rendered and there was no dissent.
Lundgren was executed.
Keith v. Mitchell,
466 F.3d 540 (6th Cir. 2006)
(Clay, J., dissenting from the denial of rehearing en banc,
joined by, Martin, Moore, and Cole, JJ.; Martin, J., also
dissenting by separate opinion)
“Despite a long and well-recognized line of Supreme Court
case law requiring counsel in death penalty cases to conduct
at least a cursory investigation into mitigation evidence, it is
uncontested in this case that defense counsel failed to conduct
any investigation. Instead, defense counsel submitted reports
containing information that any reasonable counsel would
recognize could only prejudice a defendant, including: (1)
victim impact information; (2) an extensive list of evidence
implicating Petitioner; (3) a record of Petitioner’s prior
convictions; (4) erroneous positive statements about
Petitioner’s family and childhood; and (5) a psychiatrist’s
report stating that Petitioner was not mentally impaired and
that no mitigating factors existed. It cannot be reasonably
argued that submitting such information was a legitimate
strategy simply because the report also mentioned that
Petitioner was a good football player and considered himself
to be a ‘nice guy.’ I would therefore grant the petition for
rehearing and hold that Petitioner received ineffective
assistance of counsel during the mitigation phase of his trial,
requiring this Court to vacate his death sentence.”
What trial counsel did and did not do: The court found that
trial counsel did not do the following: 1) discuss the concept
of mitigation with Petitioner; 2) question Petitioner about his
life or childhood; 3) interview Petitioner’s family or friends,
despite their expressed willingness to speak with him; 4)
present an opening statement, witnesses, or a closing
statement at the sentencing phase; 5) argue innocence,
residual doubt, or even ask the jury to spare Petitioner’s life.
Instead, he allowed the submission of two highly prejudicial
reports.
The first report, the result of a one-hour examination by a
psychologist, noted that Petitioner did not appear to have
any mental illnesses, was of average intelligence, and was
not depressed. It also stated that Petitioner considered himself
a nice guy who had no anger problems and did not have a
significant substance abuse problem. Further, it stated that
Petitioner’s family had no history of alcoholism, and that
Petitioner was never physically or sexually abused. Finally,
the report said it was the examiner’s opinion that there were
no mitigating factors in the case.
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Volume 29, No. 1 January 2007
The second report was a pre-sentence report that contained:
1) three pages recounting the crime and evidence against
Petitioner; 2) a page long victim impact statement including
information regarding the psychological state and monetary
troubles of the surviving victims and their relatives; 3) a one
sentence section labeled “Defendant's version” that included
Petitioner’s claim of innocence; 4) a one page history of
Petitioner’s prior record; 5) a two page summary of Petitioner’s
parole and supervised release history; and, 6) a one page
social history of Petitioner, which stated that Petitioner was
an illegitimate child who was raised by his grandparents and
had a happy and normal childhood, and that Petitioner
maintained employment and had a daughter for whom he paid
$25 a week in child support.
AEDPA’s limitation on relief: Under AEDPA, relief can only
be granted if the state court holding was “contrary to or an
unreasonable application of clearly established Federal law
as determined by the Supreme Court of the United States; or
2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” A state court decision is
contrary to a clearly established Federal law if“ the state court
arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decides
acase differently than the Supreme Court ona set of materially
indistinguishable facts.” A state court decision is an
unreasonable application of clearly established Federal law if
“the state court identifies the correct governing legal principle
but unreasonably applies that principle to the facts of the
prisoner’s case.
The state court’s decision that counsel made a strategic
decision not to present mitigating evidence despite failing to
investigate mitigating evidence is contrary to Strickland v.
Washington, 466 U.S. 668, 691 (1984): Under Strickland,
counsel has a duty to make reasonable investigation or to
make a reasonable decision that a particular investigation is
unnecessary. Thus, any decision to forgo the presentation
of mitigating evidence is unreasonable unless made after a
reasonable decision not to investigate further. As a result,
trial counsel’s complete failure to investigate before deciding
not to present mitigating evidence at the sentencing phase is
deficient performance as a matter of law under Supreme Court
case law. Because trial counsel conducted no investigation
before deciding not to present mitigating evidence, Judge
Clay concluded that the state court’s ruling that counsel made
a strategic decision because presenting mitigating evidence
was incompatible with a claim of innocence is contrary to
Strickland. In addition, the proposition that mitigation and
innocence are inconsistent is untenable.
The state court’s decision that counsel’s decision to submit
the presentence report and the doctor’s evaluation was
reasonable trial strategy is an unreasonable application of
Strickland: Judge Clay relied heavily on the ABA Guidelines
for the Appointment and Performance of Counsel in Death
Penalty Case. Under Guideline 10.12(A)(1), counsel in death
penalty cases have an obligation to consider the strategic
implications of requesting a pre-sentence report where such
reports are optional. The commentary to Guideline 10.12
expressly notes that requesting such a report may amount to
ineffective assistance of counsel when it allows the
prosecution to present a defendant’s prior record and victim
impact evidence, where such information would otherwise be
inadmissible. The Guidelines also say that counsel should
provide the preparer of the presentence report with information
favorable to the client and seek to ensure that improper,
incorrect, or misleading information that may harm the client is
deleted from the report.
Because there is no evidence in the record that trial counsel
considered the implications of submitting the presentence
report before deciding to do so, Judge Clay concluded that
Ohio courts’ ruling that counsel made a strategic decision to
submit the report is nothing more than a post-hoc
rationalization, which Strickland prohibits courts from
crediting.
To the extent that counsel made a strategic decision to submit
the reports, Judge Clay believed that the decision was
objectively unreasonable. The reports contained pages
documenting Petitioner’s prior record, the impact of the crime
on the victims and their families, evidence implicating Petitioner,
erroneous statements about Petitioner’s background and
childhood, and a psychologist’s outrageous conclusion that
no mitigating factors existed. No reasonable defense attorney
could conclude that the mitigating value of the report
outweighed the introduction of the prejudicial evidence simply
because the report also contained a handful of positive
sentences about Petitioner.
The standard for determining prejudice: Prejudice, under
Strickland, requires a showing that but for counsel’s errors
there is a reasonable probability that the outcome of the
proceedings would have been different. Because the decision
to impose death under Ohio law must be unanimous, petitioner
only needs to establish a reasonable probability that one juror
would have voted differently.
Petitioner was prejudiced by counsel’s deficient performance:
Under Ohio law, if trial counsel did not submit the presentence
report, the jury would not have had access to Petitioner’s
prior criminal record or the trauma the crime instilled on the
victim’s family - - factors that were definitely considered by
the jury. During deliberations, the jury asked the court to
verify the dates of Petitioner’s imprisonment for a prior robbery.
This shows that Petitioner’s prior record affected the jury’s
deliberations and thus a reasonable probability exists that but
for counsel’s submission of the reports, one juror would have
voted to recommend sentencing Petitioner to life instead of
death.
Continued on page 24
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Volume 29, No. 1 January 2007
Continued from page 23
In addition, if counsel had conducted an investigation, the
jury would have also known: 1) that Petitioner’s mother was
an alcoholic who drank during her pregnancies; 2) that Social
Services determined that Petitioner’s mother neglected him,
causing him to be placed with his grandparents; 3) that
Petitioner’s grandfather abused at least one of Petitioner’s
half-siblings and probably abused Petitioner; and, 4) that
Petitioner’s custodial grandmother was a convicted murderer.
This evidence contradicts much of the evidence presented
through the presentence report and the doctor’s report that
was submitted during the sentencing phase. Cumulatively, a
reasonable probability exists that at least one juror would
have voted against death if presented with this evidence.
Martin, J., dissenting: Martin wrote a separate dissenting
opinion to “express [his] dismay and frustration with the
shortcomings of [the court’s] approach to reviewing death
sentences through habeas corpus appeals. Needless to say,
if each of the states where the death penalty is a punishment
were to provide adequate counsel and adequate resources at
the initial trial and sentencing stages, most of these cases
would be disposed of in a fashion that would allow the process
to move more swiftly and fairly.” Martin continued by saying,
“[nJor do I believe that we as a nation, or as a federal judiciary,
have had the courage to recognize the failings of our present
system of capital representation and the conviction to do
what is necessary to improve it. . .. The majority’s willingness
to take the opposite approach here, and to make light of the
prejudice imposed upon Keith at sentencing, show nothing
less than indifference toward a criminal defendant’s right to
effective assistance of counsel in a capital sentencing
proceeding. Indeed, members of this Court have gone on the
record to second-guess the jurisprudence of the Supreme
Court, and this Court, that requires counsel to conduct an
adequate investigation of potential mitigating circumstances
for purposes of capital sentencing, and mandates the reversal
of convictions where this does not occur. This reasoning
strikes me as demonstrating callousness and possible
animosity toward the Sixth Amendment right to counsel.
Martin also used this case as an opportunity to address Judge
Boggs prior statements that the current state of the law of
ineffective assistance of counsel encourages trial counsel to
not present mitigating evidence in hopes of reversal. Martin
said, “it is simply incorrect, and contravenes commons sense,
to suggest that the protection of the Sixth Amendment right
to counsel by the federal judiciary has somehow created
incentive for defense counsel to intentionally fail to provide
adequate representation during capital sentencing
proceedings. The proposition that a trial lawyer would ever
intentionally lose at trial or sentencing in the hopes that his
client will have the resulting conviction reversed on appeal
would seem incredible to an attorney with any experience at
the trial level, and is indicative of the tendency of appellate
judges to be oblivious to the real world of litigation strategy.
It would be particularly poor judgment for defense counsel in
a state criminal trial to leave the protection of her client’s Sixth
Amendment rights in the hands of a federal judiciary that has
become increasingly willing to play fast and loose with the
individual protections guaranteed by the Constitution merely
to avoid temporarily delaying a state’s rush toward death. . ..
It seems to me that the better explanation for the frequent
findings of ineffectiveness of counsel in capital cases that
Judge Boggs documents has nothing to do with intentionally
deficient representation, and much more to do with the fact
that there is insufficient support, financial and otherwise, for
attorneys representing capital defendants. For this reason, I
share Justice Blackmun’s concern that without question, the
principle failings of the capital punishment review process
today are the inadequacy and inadequate compensation of
counsel at trial. Until our society is willing to provide rigorous
support for appointed defense counsel - - or to abolish the
death penalty - - the shortcomings in representation in capital
cases will likely continue. In the meantime, the insufficient
resources provided to indigent defense counsel combined
with the reluctance of the federal courts to provide meaningful
review of state court death sentences will continue to do a
great disservice to the Sixth Amendment right to counsel in
capital cases. So long as the attempt to constitutionally impose
capital punishment is continued, we must have the courage
to recognize the current failings of our present system of
capital representation and the conviction to do what is
necessary to improve it. In light of this warning, I believe that
instead of following the majority’s overly-deferential approach,
the Sixth Amendment requires us to maintain adequate
scrutiny of death sentences in cases such as this, where any
confidence we might have in the reliability of the outcome is
entirely undermined by the possibility that mitigating evidence
was never brought to light.”
Kentucky Supreme Court
Commonwealth v. Paisley,
201 S.W.3d 34 (Ky. 2006)
(Graves, J., for the Court; Minton, J., dissenting without
opinion)
Karu Gene White, a Kentucky death-sentenced inmate was
pursuing federal habeas corpus relief when the United States
Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002),
which prohibits the execution of the mentally retarded. White,
who was convicted and sentenced to death prior to
Kentucky’s 1990 statute prohibiting the execution of the
mentally retarded, immediately filed a CR 60.02 motion in the
circuit court to vacate his death sentence on the grounds that
he is mentally retarded and got the federal district court to
stay habeas proceedings pending the outcome of White’s
state court mental retardation litigation. Although White’s
1.Q. had never been tested, White’s deficits in adaptive
behavior described in his 60.02 motion convinced the circuit
court that there was sufficient doubt as to whether White is
mentally retarded to warrant an evidentiary hearing.
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Volume 29, No. 1 January 2007
Subsequently, Judge Paisley ordered the Finance and
Administration Cabinet to pay up to $5,000 for mental health
testing by an expert of White’s choosing. The state sought a
writ of prohibition in the Kentucky Supreme Court, which held
that the case met the requirements to be entertained as a writ
and that Judge Paisley abused his discretion by granting funds
for an independent expert without first making a finding that
use of state facilities is impractical.
It was appropriate for the court to order mental health testing
to determine if White is mentally retarded: The Court noted
that it has long held that a defendant is entitled to receive
expert assistance necessary to prove a mitigating
circumstance, which is of the greatest importance when a
defendant is facing the death penalty. Because White has
never had the opportunity to assert and prove his entitlement
to the mitigator of being mentally retarded, which the Court
ruled is not a defense to the crime but a circumstance that
mitigates the punishment, the Court held that “it was no doubt
proper for Judge Paisley to order mental health testing for
White.”
Note: Paisley appears to recognize that as long as the movant
agrees to testing at a state facility, a circuit court always has
the authority to order testing at the state facility whenever
the defendant has not had the opportunity to assert and prove
his entitlement to a mitigating circumstance. Arguably, this
includes situations where the movant was denied the
opportunity to assert and prove his entitlement to a mitigating
circumstance as a result of ineffective assistance of counsel.
State funds are only available upon a showing that the use of
state facilities is impractical: According to the Kentucky
Supreme Court, under K.R.S. 31.185, state funds for the
purpose of hiring an expert of his choosing is only available if
the use of the state facilities is impractical. Because the state
was ordered to pay for a private psychologist without the
requisite showing that the use of state facilities was somehow
impractical in this case, which cannot be established solely
on the perception of bias, the Court held that Judge Paisley
abused his discretion.
Note: By recognizing that state funds are available under
K.R.S. 31.185 in post conviction proceedings when the use
of state facilities is impractical, the Kentucky Supreme Court
held that K.R.S. 31.185 applies to at least some post
conviction claims. In so ruling, the Court either created an
exception to its ruling in Stopher v. Conliffe, 170 S.W.3d 307
(Ky. 2005), that 31.185 does not apply to post conviction or
created an exception to it.
The requirements for entertaining a writ of prohibition are
satisfied when the issue involves state funds that cannot be
recovered later: A writ of prohibition is an extraordinary
remedy that courts have always been cautious and
conservative both in entertaining petitions for it and in granting
relief. The merits of a writ will not be considered unless the
party secking the writ can first demonstrate a minimum
threshold showing of harm and lack of redressability on
appeal. When conducting this analysis, the Kentucky
Supreme Court usually distinguishes between cases in which
the lower court is allegedly acting beyond its jurisdiction and
cases where the lower court is allegedly acting erroneously
within its jurisdiction. Within this second class of writs, the
writ will be considered upon a showing that there exists no
adequate remedy by appeal or otherwise and great injustice
and irreparable injury will result if the petition is not granted.
Because the state would be unable to recoup the funds since
White is indigent and the facts of this case are capable of
frequent repetition and would cause the Commonwealth to
suffer irreparable injury in the form of massive payouts of
funds to indigent defendants seeking private expert opinions,
the Kentucky Supreme Court held that this case satisfies the
requirements for being considered as a writ of prohibition.
Note: By upholding the grant of an evidentiary hearing on
mental retardation despite no IQ. scores, the Kentucky
Supreme Court recognized that it is appropriate to hold an
evidentiary hearing on mental retardation when the
allegations in the post conviction pleading supports any
one of the prongs of mental retardation and no evidence
refutes one of the prongs. In other words, a death-sentenced
inmate does not need to present evidence in support of each
prong of the definition of mental retardation to obtain a
mental retardation hearing, and the lack of evidence on a
prong does not create a presumption that the inmate is not
mentally retarded.
Note: Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005),
held that an Atkins claim is procedurally defaulted if the
condemned inmate was tried after the effective date of the
statute prohibiting the execution of the mentally retarded
(1990), but failed to raise at trial mental retardation as a
bar to execution. Paisley recognizes that default does not
apply to inmates who were tried prior to the 1990 statute,
even though they arguably could have raised the claim
sometime after 1990 and before Atkins was decided by the
United States Supreme Court in 2002.
Non-final Kentucky Supreme Court decisions: The
Kentucky Supreme Court affirmed the denial of a challenge to
the chemicals and procedures used in Kentucky lethal
injection in Baze and Bowling v. Rees, et al., affirmed the
denial of post conviction relief in Stopher v. Commonwealth,
and upheld the grant of sentencing phase relief based on
ineffective assistance of counsel for failing to investigate and
present mitigating evidence and the denial of guilt phase relief
in Marlowe v. Commonwealth. These cases and other death
penalty cases still pending on rehearing petitions in the
Kentucky Supreme Court will be discussed when they become
final.
Unpublished Kentucky Supreme Court decisions: Beginning
January 1, 2007, unpublished decisions from the Kentucky
Supreme Court rendered after January 1, 2003, can be cited as
persuasive authority. ll
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Volume 29, No. 1 January 2007
Srxtu Circuit Cast REVIEW
By Dennis J. Burke, Post-Conviction Branch
Bell v. Bell,
460 F.3d 739 (6th Cir. 2006)
An important Brady case. In a familiar scenario, the
prosecution denied promising a benefit to a jailhouse snitch
in return for his testimony that the defendant confessed to
committing the crimes. After trial it was learned that the
snitch did receive lenient treatment from the prosecution.
The question addressed by the court was whether a tacit
agreement between the prosecution and the snitch is
favorable evidence which must be turned over under Brady.
Petitioner was convicted in TN of two counts of murder and
sentenced to life plus twenty years in prison. At trial, a
prosecution witness, William Davenport, testified that while
he and the petitioner were both in custody, the defendant
confessed to him that he shot the victims. (Prejudicial,
because it vitiated defendant’s mistaken identity defense.)
Davenport also claimed the defendant confessed that he
killed the second victim because she was a witness to the
first killing (thus establishing premeditation).
Defense counsel requested any potentially exculpatory or
impeachment evidence but was provided with none.
However, shortly after Davenport contacted prosecutors
regarding his supposed conversation with the petitioner,
the government withdrew multiple felony charges against
Davenport. In addition, Davenport received a concurrent
sentence for two other felony charges. Finally the prosecutor
wrote a letter to the parole board on Davenport’s behalf.
The Government argued that there was not a Brady violation
because at the federal district court post conviction
evidentiary hearing the prosecutor testified that while he
did write a letter to the parole board on Davenport’s behalf,
he did not promise Davenport that he would do so. The
prosecutor also admitted that Davenport approached the
prosecution about testifying and opined that “everybody
wants something and I’m sure Davenport wanted
something.”
In evaluating the claim, the court succinctly laid out the
legal framework as follows: In Brady v. Maryland, the
Supreme Court held that the prosecution has a constitutional
obligation under the Due Process Clause of the Fourteenth
Amendment to disclose exculpatory evidence that is material
to either guilt or punishment. 373 U.S. 83, 87, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963). The Court emphasized that the purpose
of such a rule was “avoidance of an unfair trial to the
accused.” Jd. The Supreme Court has held that the Brady
tule extends to witness impeachment evidence. See, e.g.,
Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31
L.Ed.2d 104 (1972) (“When the reliability ofa given witness
may well be determinative of guilt or innocence,
nondisclosure of evidence affecting credibility falls within
[the Brady] rule.” (internal quotations and citation omitted).
In order to make a Brady claim, Petitioner must prove three
elements: (1) “[t]he evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is
impeaching”; (2) “that evidence must have been suppressed
by the State, either willfully or inadvertently”; and (3)
“prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).
The Supreme Court has not spoken directly on the tacit
agreement issue; it has only found that evidence of an
explicit agreement between the witness and the government
is favorable evidence under Brady. See Giglio v. United
States, 405 U.S. 150, 154 (1972). Until now, the Sixth Circuit
has also not addressed it.
However, several other circuits have ruled on this very issue
and therefore, the Court looked to those circuits for guidance.
The 7th Circuit, Wisehart v. Davis, 408 F.3d 321, 323-24 (7"
Cir. 2005) and the 9" Circuit, United States v. Shaffer, 789
F.2d 682, 685 (9" Cir. 1986), found that evidence of a tacit
agreement between the government and the witness is
favorable evidence required to be provided to the defense
under Brady. The 8" Circuit, in Reutter v. Solem, 888 F.2d
578, 581 (8 Cir. 1989), has gone even further holding that
there is no need to establish an agreement between the
government and the witness as long as the evidence can
impeach the witness.
However, the 2™ Circuit has effectively endorsed tacit
agreements between the government and their jailhouse
snitches in holding that proof of favorable treatment for a
prosecution witness is not enough to establish a Brady
violation as long as the government does not promise the
witness anything prior to the witness testimony. Shaba:
Artuz, 336 F.3d 154, 157 (2™ Cir. 2003). Left unsaid is that it is
virtually impossible for a defendant to prove the existence
ofa tacit agreement between the government and a witness,
which by definition is unspoken.
In granting the habeas corpus petition, the court adopted
the reasoning of the Second and Seventh Circuits. “No
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Volume 29, No. 1 January 2007
principled reason exists for differentiating between spoken
and unspoken agreements between the prosecution and a
witness. The relevant fact under Brady is whether the
evidence is exculpatory or impeaching... The fact that an
agreement is unspoken does not lead to a diminishment of
the witness’ interest under the agreement.”
Hopefully this ruling will (eventually) end the shameful
practice of secret agreements between prosecutors and jail
house snitches.
Dando v. Yukins,
461 F.3d 791 (6" Cir. 2006)
Guilty plea - ineffective assistance of counsel (IAC); Failure
to seek mental health expert and explore a potential defense
based upon duress and Battered Woman’s Syndrome is not
considered reasonable professional judgment, even if
defendant received a relatively lenient sentence.
Dando and her boyfriend were involved in a number of armed
robberies in Michigan, using a sawed off shotgun. On the
day she was apprehended Dando tried to run away. (Her
boyfriend, still in possession of the shotgun, confronted
the police, who shot him dead.)
After her arrest, Dando confessed to her role in the robberies.
She was appointed counsel. She informed her counsel that
she had a long history of physical and sexual abuse and that
her boyfriend beat her and had threatened to kill her
immediately before she took part in the robberies. Counsel
advised Dando to plead No Contest to the charges. Dando
claims that she requested her counsel consult a mental health
expert before she made her decision, but that he allegedly
refused because “an expert would cost too much money.”
Dando at 794, She entered the no contest plea in return for
a sentence at the low end of the state sentencing guidelines
which ended up as a sentence of ten to thirty years in prison.
Dando’s ineffective assistance of counsel claim is considered
under the well known standard established in Hill v.
Lockhart. 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)
(when “a defendant is represented by counsel during the
plea process and enters his plea upon the advice of counsel,
the voluntariness of the plea depends on whether counsel’s
advice was within the range of competence demanded of
attorneys in criminal cases.”) “[t]he two-part test to establish
ineffective assistance of counsel, established in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), ‘applies to challenges to guilty pleas’ based on
ineffective assistance of counsel. 474 U.S. at 58, 106 S.Ct.
366.” Under the Strickland test, a defendant must show
that counsel’s performance fell below an objective standard
of reasonableness, and that the defendant was prejudiced
by the attorney’s error. /d. at 57-59, 106 S.Ct. 366. In the
context of a challenge to a guilty plea, the defendant must
show that “but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Id. at 59, 106 S.Ct. 366. “An assessment of prejudice must
include a prediction of the likely outcome at trial. /d. “In the
case of an unexplored affirmative defense or undiscovered
evidence, this prediction of the likely outcome at trial is
relevant to determine whether or not the potential defense
or evidence would have caused counsel to change the
recommendation as to the plea.” Dando, at 798, citing to Hill
v. Lockhart.
The court concluded that trial counsel’s performance was
deficient. He failed to adequately investigate the possibility
of a duress defense and the possibility that Dando suffered
from Battered Women’s syndrome. His advice that hiring an
expert would be too expensive is “flatly incorrect” because
under Ake v. Oklahoma, 470 U.S. 68, 83 (1985), she would
have been entitled to have the state pay for a mental health
expert. “Investigation of this potential defense was a minimal
requirement to providing adequate representation at the plea
stage particularly where Dando herself told her attorney
about the history of abuse and even suggested the need for
amental health expert” Dando at 798-99. Under Strickland,
reviewing courts are required to show deference to trial
counsel’s strategic decisions, supported by professional
judgment. However, the majority found that counsel’s
misunderstanding of the law regarding the availability of
funds with which to hire a mental health expert does not
reflect sound professional judgment. Significantly, even
Dando’s “relatively lenient sentence” does not render
counsel’s failure to investigate a sound professional
judgment because Dando may have been acquitted of the
charges altogether or convicted of some but acquitted of
others.
Having determined that counsel’s performance was deficient,
the court determined that Dando’s “shocking” history of
abuse “would present a potentially compelling duress
defense based upon Battered Women’s Syndrome.”
Ultimately the majority decided that had counsel properly
investigated and consulted a domestic violence expert, there
is a reasonable probability that his recommendation to plead
No Contest would have been different and that Dando likely
would have insisted on proceeding to trial. Dando at 802.
The habeas petition was granted.
Stewart v. Wolfenbarger,
—-F3d —, 2006 WL 3230286 (6h Cir. 2006)
Ineffective assistance of counsel; defense attorney failed to
investigate alibi witness and failure to file state law required
notice of alibi location.
Defendant was convicted of murder in a shooting which
occurred in Detroit. The key evidence against him was an
eyewitness who testified that he saw Stewart shoot the victim.
Continued on page 28
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Volume 29, No. 1 January 2007
Continued from page 27
A second prosecution witness, a close friend of the victim,
testified that while at the home of a friend named Marvin on
the day of the shooting, he overheard Stewart threaten to
kill the victim.
In his defense, Stewart planned to call three men to testify
that he and the men drove to Atlanta, GA, earlier in the week
and did not return to Detroit until after the shooting.
However, because Stewart’s counsel had not provided
written notice of the location of the alibi as required by
Michigan law, the judge (exercising his discretion) only
permitted one of the three men to testify.
At the post trial evidentiary hearing, Stewart presented
Marvin, who had not testified at trial, even though Stewart
asked his counsel to subpoena him. Marvin testified that
Stewart’s counsel had never contacted him or subpoenaed
him. He further testified that contrary to the prosecution
witness, Stewart was not at his home on the day of the
shooting.
As noted above, to prevail ona claim of ineffective assistance
of counsel the petitioner must ordinarily prove two
components: (1) counsel’s performance was deficient; and
(2) prejudice, which means that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
The court found that counsel’s failure to provide the location
of the alibi fell below an objectively acceptable level of
performance under Strickland. It also found that counsel
inadequately investigated Melvin and “clearly constituted
objectively deficient performance.” Further, because the
errors by counsel went to the heart of Stewart’s defense, the
court found he was prejudiced under the second prong of
Strickland. In weighing prejudice, the court made special
note of the prosecution’s emphasis of the lack of alibi
witnesses during the cross-examination of the one alibi
witness who did testify. “Amazingly, the prosecution made
this comment after the state trial judge had already ruled,
outside of the jury’s presence, that [the other alibi witnesses]
could not testify, so they were prevented from corroborating
the [alibi] testimony. ‘he jury had good reason to find
[Stewart’s] alibi dubious.”
Higgins v. Renico,
—F.3d—, 2006 WL 3345289 (6" Cir. 2006)
TAC - cross examination
In another Detroit murder case, Alvin Ramsey was shot to
death as he sat in the driver’s seat of a car parked in a
residential neighborhood. Higgins, who was convicted of
the murder, alleged ineffective assistance of counsel.
The case is remarkable for two reasons: (1) at trial, defense
counsel refused to cross-examine the only eyewitness
against Higgins. Counsel refused because he hadn’t
anticipated that the witness would testify at trial and so he
was not prepared. The trial court refused to grant him an
extended recess in which to prepare, and defense counsel
thought that if he proceeded as is, he would be committing
legal malpractice.
(2) On direct appeal, the state court determined that the
defendant was not prejudiced by his counsel's inaction, even
though this sole eyewitness also gave inconsistent stories
to police before trial; he tested positive for gunpowder
residue on his hands, yet denied both that he was in the car
when shots were fired and that he himself had fired a gun on
the day of the murder; on direct examination he initially
responded to the prosecutor’s question about the murder
weapon with ‘I pulled’ then changed his response to ‘he
pulled’ out the gun; and finally based on all of the above
factors, the witness may himself have been the actual killer.
Applying the now familiar two pronged Strickland analysis
outlined in the case summaries above, the federal district
court granted Higgins’ habeas petition and the Court of
Appeals unanimously affirmed.
Rittenberry v. Morgan,
—F.3d—2006 WL 3230278 (6" Cir. 2006)
Statutory interpretation of Antiterrorism and Effective
Death Penalty Act (AEDPA)
Rittenberry pled guilty to murder and robbery in Tennessee
and was sentenced to life imprisonment. After being denied
post-conviction relief in state court, he filed a federal habeas
petition which he also lost. After the habeas petition was
denied, Rittenberry gained access to the prosecutor’s file
through the state public records act. In the file, he discovered
that the codefendant had admitted tying up the victim in the
robbery which led to the victim’s death. This non-disclosed
information was important because the codefendant was the
primary witness against Rittenberry, pursuant to the
codefendant’s guilty plea. Further, the strength of the
codefendant’s statement convinced Rittenberry to plead
guilty.
The AEDPA as interpreted presents serious procedural
hurdles to a petitioner seeking to file a successive petition
after having filed a previous petition. Thus to quote the
court on page three of the opinion:
Rittenberry’s appeal turns on the question of whether a
habeas petitioner can avoid the procedural hurdles of the
Antiterrorism and Effective Death Penalty Act, the pertinent
portions of which are codified in 28 U.S.C. §§ 2244 and 2254,
by filing his petition under 28 U.S.C. § 2241, rather than
section 2254. Section 2241 provides a general grant of habeas
jurisdiction and would, on its own, be more friendly to a
28
THE ADVOCATE
Volume 29, No. 1 January 2007
habeas petitioner-particularly one who has previously filed
a federal habeas petition. By contrast, section 2254 limits
the grounds for habeas relief to people in custody pursuant
toa state court judgment. Rittenberry freely admits that he is
filing under section 2241, which he describes as a separate
“gate” to habeas relief from section 2254, “because [§ 2241's]
hurdle for successive petitions is more flexible than § 2254’s.”
Most significantly, because this is not Rittenberry’s first
habeas petition, ifhe were filing under section 2254 he would
have to satisfy the requirement of section 2244(b)(2)(B) that
he obtain initial authorization from this Court to file his claim
by making a showing of actual innocence (in addition to
showing that the facts underlying his claim could not have
been discovered initially). Rittenberry contends that he does
not have to meet this prerequisite because he “filed under
section 2241.”(Emphasis added).
Ultimately, although the court found Rittenberry presented
a persuasive argument it concluded that his “comparative
analysis reveals nothing more than poor draftsmanship. The
numerous federal decisions on this issue support the view
that all petitions filed on behalf of persons in custody
pursuant to State court judgments are filed under section
2254 and subject to AEDPA’s restrictions, even if language
in section 2244(b) seems to indicate otherwise.”
Thus the court rejected the backdoor attempt at a successive
habeas petition and continues to require that before filing a
successive habeas, petitioners must seek permission from
the court under section 2244(b) and must satisfy the onerous
burden of making a showing of actual innocence (in addition
to showing that the facts underlying the claim could not
have been discovered initially). I
Tam the lawyer.
conscience, to free speech and free assembly.
Iam the spokesman of righteous causes.
I maintain honor in the market place.
Tam the champion of unpopular causes.
I prepared the way for the Ten Commandments.
I fought the Stamp Act.
I defended the slave.
I was an Abolitionist.
I signed the Emancipation Proclamation.
land and clime.
I fought in every war for liberty.
be accorded all his rights and privileges.
Iam the leader of mankind in every crisis.
Iam the scapegoat of the world.
Iam the pioneer.
I am the just judge and the righteous ruler.
Thear before I condemn.
I seek the best in everything.
Iam the Lawyer
by James J. Doherty
I displaced brute force with mercy, justice, and equity.
I taught mankind to respect the rights of others to their property, to their personal liberty, to freedom of
I plead for the poor, the persecuted, the widow and the orphan.
Iam the foe of tyranny, oppression and bureaucracy.
I pleaded for the freedom of the slave in Greece and for the captive in Rome.
I wrote the Declaration of Independence and the rights of man.
I punish the wicked, protect the innocent, raise up the lowly, oppose brutality and injustice, in every
I stand in the way of public clamor and the tyranny of the majority.
I plead for the rich man when prejudice prevents him from getting justice and I insist that the poor man
Iseek the equality of mankind, regardless of color, caste, sex or religion. I hate fraud, deceit or trickery.
Iam forbidden to serve two masters or to compromise with justice.
I am the conservative of the past, the liberal of the present and the radical of the future.
I believe in convention, but I cut the Gordian knot of formalism and red tape to do justice and equity.
Thold the rights of mankind in the hollow of my hand, but am unable to obtain recognition of my own.
I am the last to renounce the past and to overturn the present.
29
THE ADVOCATE
Volume 29, No. 1 January 2007
Kentucky Case REVIEW
By Sam Potter, Appeals Branch
Alejandro Gonzalez De Alba v. Commonwealth
Final 10/12/06, To Be Published
202 S.W.3d 592 (Ky. 2006)
Affirming
Unanimous Opinion by J. Roach
De Alba was convicted of murder and fourth degree assault
and received a sentence of 50 years in prison. De Alba was
married to Pauline Gonzalez, who had an adult son Patrick
Carter. Patrick came over to his mother’s house to celebrate
Thanksgiving with Pauline and De Alba. De Alba stayed in
his room throughout the visit and refused to eat dinner with
the rest of the family. Late in the day, he emerged from his
room, said the party was over, and instructed everyone to
leave. He unplugged the television, broke a glass coffee
table, and threw the leftovers of the Thanksgiving meal into
the backyard. Pauline urged her husband to stop, and De
Alba began hitting her on the head and in the mouth. Patrick
intervened to try to help his mother. De Alba claimed Patrick
threatened to cut him with a knife. The fight between De
Alba and Patrick carried out to the street. After being knocked
down, De Alba ran inside the house, got a gun, and chased
Patrick down the street. One bullet struck Patrick in his hand
and forearm and another in his chest, killing him.
The marital privilege of KRE 504 did not apply because the
murder occurred in the course of wrongful conduct against
the testifying spouse. The marital privilege allows a party
spouse to prevent a witness spouse from testifying about
events that occurred during their marriage. Several
exceptions to this rule exist. The privilege does not apply if
the party spouse is charged with wrongful conduct against
the person or property of the witness spouse or a third person
if the wrongful conduct against a third person is committed
in the course of the wrongful conduct against the witness
spouse. KRE 504 (C)(2)(A, D).
De Alba’s act of murdering Patrick was committed in the
course of his assault against Pauline. He admitted to the
police that he instigated the argument with his wife and her
son. This argument led to the assault of Pauline and the
murder of Patrick. The uninterrupted and logical progression
of events in this case compels the conclusion that the murder
was committed in the course of the assault on Pauline. To
hold otherwise would be an unjustifiable expansion of the
privilege.
Wiley Gibbs v. Commonwealth
Final 10/12/06, To Be
Published
2006 WL 2706957
Affirming in Part, Reversing in
Part, and Remanding
Opinion by J. Lambert, Dissent
by J. Roach
Gibbs is 65 years old and has an
1Q of 66. He was married to Linda
for 26 years, and they raised three
children. In 2002 his daughter,
referred to as Jane Doe, accused him of abusing her between
the ages of seven to 15. The abuse included touching,
intercourse, and oral sex. A friend of Jane’s, referred to as
Sarah Smith, accused Gibbs of abusing her when she was
between 13 and 15 years old. Gibbs admitted to some
instances of misconduct. Gibbs was convicted of various
counts of incest, sodomy, rape, and sexual abuse of both
Jane and Sarah. He received a 105 year sentence.
Sam Potter
The trial court has a mandatory and affirmative duty to hold
a competency hearing following a competency evaluation.
Gibbs’ trial lawyer requested a competency evaluation. He
had an IQ of 66, was mentally retarded, and suffered from a
depressive disorder. Despite this, the report concluded he
was competent to stand trial because he did not suffer from
a mental condition that impaired his ability to understand
the requirements of the law or prevented him from conforming
his behavior to those requirements.
However, no competency hearing was ever held in his case.
KRS 504.100 places an affirmative duty on the trial court to
hold an evidentiary hearing following a competency
evaluation. The language of that statute appears to be
mandatory. The Supreme Court reversed the case for a
retrospective competency hearing that allows the
Commonwealth and defendant an opportunity to present
evidence on the issue of competency and to cross examine
the person who prepared the report.
While not the best practice, reversible error did not occur
when the trial court did not read each and every instruction
to the jury. The trial court read the instructions for a particular
offense, but some offenses contained multiple counts. The
trial court decided not to reread some instructions that were
the same except for the location of the offense. The trial
court must instruct the jury in writing on the law of the case
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THE ADVOCATE
Volume 29, No. 1 January 2007
and read those instructions to the jury before closing
arguments. These requirements cannot be waived unless
both the Commonwealth and the defendant agree. RCr 9.54(1).
However, Gibbs did not object to the omission as required
by RCr 9.54(2), which rendered the issue unpreserved. While
the trial court did not read each and every specific jury
instruction, it did provide a full set of instructions to the
jury. The Supreme Court recognized that practical
considerations must be taken into account for such technical
errors during the course of a trial. No error was committed.
The prosecution of misdemeanor offenses must be
commenced within one year after it is committed. Gibbs
was convicted of several counts of second-degree sexual
abuse, which is a misdemeanor offense. The prosecution for
an offense other than a felony must be commenced within
one year after it is committed. KRS 500.050(2). The police
received the complaint on February 11, 2002. Gibbs was
indicted on felony and misdemeanor charges on April 2, 2003.
The misdemeanor offenses occurred more than one year
before the proceedings commenced and were barred by the
statute of limitations. These convictions were reversed for
dismissal.
A person guilty of only class C and class D felonies cannot
be sentenced to more than 20 years in prison. The trial court
instructed the jury on 19 offenses. The jury found Gibbs
guilty of five misdemeanors, 10 class C felonies, and one
class D felony. The jury recommended a total sentence of
105 years, and the judge followed the recommendation. For
a person who is convicted of only class C and class D
felonies, the law sets a maximum punishment at no more
than 20 years in prison. KRS 532.110(1)(c); KRS 532.080(6)(b).
The Supreme Court remanded the case with instructions for
the trial court to sentence Gibbs for a period not to exceed 20
years.
Forcible compulsion requires the threat or use of physical
force and does not require resistance or duress. One of the
crimes Gibbs was charged with was first degree sexual abuse,
which required him to subject another person to sexual
contact by forcible compulsion. KRS 510.110(1). Forcible
compulsion only requires the use of physical force or the
threat of physical force. KRS 510.010(2). Resistance and
duress are not required to prove forcible compulsion. Sarah
Smith testified that Gibbs placed her hand on his pants where
his penis was. This testimony satisfied the forcible
compulsion element of first degree sexual abuse.
For both rape and incest, the specific location of the offense
is not a statutory element of the offense. Gibbs argued that
error occurred when the judge instructed the jury on four
counts of rape and incest that occurred in the bathroom of
Gibbs’ home because the victim did not testify that any act
of intercourse occurred in the bathroom. The location was
only used to identify each offense. Because Gibbs admitted
having sexual intercourse with his underage daughter on
three occasions at his home, it was not improper for the trial
court to instruct the jury on at least the three incidents of
rape and incest at the home. Further, this issue was not
preserved because Gibbs made only a general directed
verdict motion.
Instructions that require a jury to find that certain offenses
occurred within a stated time frame and that the victims
were younger than 14 or 16 years old are permissible even
if the victims would have passed the maximum age during
part of time frame the offenses were alleged to have occurred.
Gibbs argued that the instructions included a time frame of
years in which the offenses had to be committed against the
victim, but that the time frame included some years in which
the victims were older than the maximum age requirement for
the offense. The Commonwealth had to prove that the
offenses occurred when the victims were under fourteen or
sixteen years of age, depending on the offense. Gibbs argued
the instructions allowed the jury to find that the offense
occurred within the time frame given in the instructions, but
after the victims had attained an age that exceeded the
maximum age element for the offense.
However, the instructions required the jury to find not only
that the offenses occurred within the stated time frame, but
also that the alleged victims were less than 14 or 16 at the
time of sexual contact or intercourse. The instructions only
allowed the jury to find Gibbs guilty if the act fell within the
stated period and in which the child was less than 14 or 16.
The instructions did not relieve the jury from finding that
the act occurred before the victims attained the maximum
age requirement because the second paragraph of each of
the instructions required that finding.
Walter Durrell Gray v. Commonwealth
Final 11/9/06, To Be Published
203 S.W.3d 679 (Ky. 2006)
Affirming
Opinion by J. Scott, Dissent by J. McAnulty
Gray received a 45-year prison sentence for shooting to death
Andrea Tiller. Gray and two companions approached Tiller
in her car in a housing project in Lexington to sell Tiller
drugs. Gray leaned in the window to make the sale, but Tiller
insisted on buying from one of his companions. This upset
Gray, and he shot her six times.
Failure to ask questions about statement waived objection
to its exclusion. Gray’s counsel and an investigator recorded
a statement from Rose Crutcher, a resident in the
neighborhood where Tiller was killed. Crutcher’s statement
indicated the she thought someone other than Gray had
held the murder weapon in her apartment immediately after
Tiller was killed. During her testimony, Gray attempted to
impeach Crutcher with the statement. The Commonwealth
Continued on page 32
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THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 31
objected because it had not been provided pursuant to the
reciprocal discovery agreement between the parties. The
trial court ruled that Gray could ask Crutcher whether she
remembered making these statements, but that he could not
impeach her with the statement if she did not remember.
However, Gray asked no further questions on this matter.
The Supreme Court found that this waived the issue for
appellate review, even though valid strategic reasons
appeared to exist for not asking the question (i.e., because
the implication could not be substantiated under the court’s
ruling).
The trial court abused its discretion by denying Gray the
opportunity to use Crutcher’s statement to impeach her,
though the error was harmless because Gray waived the
issue. The trial court excluded Crutcher’s taped statements
on the basis of the reciprocal discovery agreement. That
agreement was based on RCr 7.24(3)(A)(i), which allowed
the Commonwealth to inspect, copy, or photograph the
results or reports of scientific tests. A taped statement used
for impeachment purposes clearly did not fall underneath
this rule. The exclusion of Crutcher’s taped statements was
an abuse of discretion and erroneous. However, since Gray
waived this issue by failing to ask the question suggested
by the trial court, the Supreme Court found the exclusion of
the statement to be harmless error.
Atrial court’s ruling will be affirmed if the result is correct
even though it was made for the wrong reason. The trial
court also excluded the written statements of another witness
based on the reciprocal discovery agreement. Again, this
was an abuse of discretion. The written statements of
Eggerson, one of Gray’s companions, were consistent with
his trial testimony, so the prior inconsistent statements rule
of KRE 801A(a)(1) did not apply. The statements were not
offered to rebut allegations of recent fabrication or improper
influence, so the prior consistent statements rule of KRE
801A(a)(2) did not apply either. Because no rule would have
allowed Gray to use the statements, the trial court’s decision
to exclude them, even for the wrong reason, was proper.
The trial court properly denied Gray’s motion to postpone
the penalty phase. The jury returned its guilty verdict on the
fourth day of trial at 6 p.m. Gray requested a continuance so
he could secure character witnesses for the penalty phase.
The trial court denied this motion because it had told the
jury the case would end that day, and the trial court had
motion day the next day which could not be rescheduled.
RCr 9.04 requires that a motion for continuance must be
accompanied by an affidavit showing the materiality of the
evidence that would have been obtained and that diligence
had been used to obtain it. Gray did not offer such an
affidavit. The trial court did not abuse its discretion in denying
Gray’s motion.
The Commonwealth’s question to potential jurors about
whether the victim deserved a fair trial did not constitute
error. In voir dire, the Commonwealth stated that the
defendant deserved a fair trial. It then asked whether the
potential jurors believed that the victim also deserved a fair
trial and a day in court. Ata bench conference, the trial court
suggested the Commonwealth move on, but did not
admonish the jury to disregard the statement. The
Commonwealth represents the people and their interests,
including victims. The Supreme Court was not persuaded
that the question during voir dire was fundamentally unfair.
Living in a high crime area is a race neutral reason for
striking a juror, at least for now. The trial court required the
Commonwealth to offer race neutral reasons for exercising a
peremptory strike on an African-American juror. The
Commonwealth struck the juror because she lived in a high
crime area and her participation would put the Commonwealth
ina “tight spot.” Five Supreme Court Justices found this to
be a race neutral reason.
Justice McAnulty and Chief Justice Lambert dissented and
would have reversed on the Batson issue. They “believe
courts need to pay substantially greater attention to whether
the mere claim that a person lives in a high crime area is
being used as a pretext for discrimination against blacks in
jury selection.” Because three of the five justices in the
majority will no longer be on the bench in January 2007, the
dissent provides solid support to continue to raise challenges
in this area. The incoming justices may join the dissenters
when this issue is revisited.
Damien A. Sublett v. Commonwealth
Final 11/9/06, To Be Published
203 S.W.3d 701 (Ky. 2006)
Affirming
Unanimous Memorandum Opinion
Sublett was paroled in May 2003. His parole involved the
usual conditions of agreeing to be searched by his parole
officer, allowing his officer to visit his home and workplace
at any time, and agreeing not violate any laws. Within a few
weeks of his release from prison, Sublett became the primary
suspect in a number of robberies. He eventually entered a
conditional guilty plea to 22 counts of first degree robbery
and received a 25 year sentence.
Parole officers have statutory authority to arrest parole
violators. KRS 439.430 authorizes parole officers to arrest
parolees the officer believes has violated the conditions of
their parole or the officer may deputize any other peace officer
to do so by providing that peace officer with a written
statement that parolees have violated their parole conditions.
Sublett’s parole officer believed he had violated his parole
conditions, and she arrested him with the assistance of
another parole officer. His arrest conformed to the statutory
procedure and was proper.
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THE ADVOCATE
Volume 29, No. 1 January 2007
The Commonwealth must prove by a preponderance of the
evidence that suspects voluntarily waive their Miranda
rights. Sublett was arrested and taken to the Robbery Unit
Office for questioning. He wrote “refused” on a Miranda
rights waver form and initialed it. Later the same day and in
the same office, he signed a Miranda rights waver form.
Sublett argued that after he refused to waive his rights,
several officers encouraged him to sign the waiver repeatedly
over four hours, and he finally gave in since the police would
not leave him alone until he waived his rights. The Supreme
Court found his version incredible because it would have
required finding that all of the officers who testified lied.
Additionally, Sublett admitted lying about having multiple
personalities. The totality of the circumstances shows his
confession to 20 of the robberies was voluntarily given.
James O. Olden v. Commonwealth
Final 11/9/06, To Be Published
203 S.W.3d 672 (Ky. 2006)
Affirming in Part, Reversing in Part
Unanimous Opinion by J. Scott
Officer McDowell observed a car in front of Olden’s house.
After leaving, McDowell pulled it over for speeding. The
driver, who had some crack, said she got it from Olden.
McDowell obtained and executed a search warrant on Olden’s
house, finding 11.6 grams of crack and $1,610. Olden was
arrested and made bail. A month later, McDowell saw another
car leave Olden’s house. He stopped it after it ran a stop
sign. He discovered the passenger had crack, and the
passenger said she got it from Olden. McDowell secured
and executed another warrant and found 4.3 grams of crack
and $1,542. Olden was convicted of two counts of first degree
trafficking in crack cocaine and received a 40 year sentence.
Voicing a pretrial intention to object but failing to actually
object during trial does not preserve an issue for appellate
review. RCr 9.22 requires a party to render a timely and
appropriate objection in order to preserve an issue for review.
This action allows the complaining party to make known to
the trial court the relief he desires the court to grant. The
purpose of the rule is to give the trial court the opportunity
to remedy any errors in the proceedings.
Before the trial began, the Commonwealth notified Olden
that the marijuana he had when arrested would likely be
covered during the officers’ direct examination. Olden told
the court that he would object. At the suggestion of the trial
court, he requested a jury admonition. However, at no point
during the testimony of any of the three officers did Olden
object or request an admonition. The Court found the error
to be unpreserved.
A statement against interest that contradicts a previous
statement cannot be introduced unless the declarant
testifies, circumstances indicate its trustworthiness, or the
declarant had been previously cross examined on the
statement. The first driver stopped, Gordon, made a written
statement that she lied to McDowell about where she
received the crack and was coerced into giving her statement
incriminating Olden. She could not be located on the trial
date. Olden moved to have her statement admitted under
KRE 804(b)(3), which is the statement against interest
exception. The Supreme Court upheld the trial court’s
exclusion of the statement because no corroborating
circumstances indicated its trustworthiness, and the
Commonwealth had no opportunity to cross examine Gordon
about the statement.
People are entitled to the constitutional protections of due
process before forfeiture of their property. At trial, the
Commonwealth introduced evidence that Olden bought a
scooter for his daughter even though he had no means of
income, other than from the sale of crack. Olden’s daughter
testified that she, her mother, and an uncle purchased the
scooter. The Commonwealth never provided notice that it
intended to seek forfeiture of the scooter during Olden’s
trial or afterwards. This deprived Olden’s daughter of notice
of the proceeding and of an opportunity to be heard at it.
The Supreme Court reversed the forfeiture order of the scooter
for another hearing that complied with due process. i
_ LSS |S
My 3 best lessons learned over time:
1) There is no substitute for time spent with your client;
2) Aless-than-perfect motion you actually file is better than a perfect motion in
your head;
3) Your judges WILL let you do it.
—George Sornberger
THE ADVOCATE
Volume 29, No. 1 January 2007
PLAIN VIEW...
Sublett v. Commonwealth,
203 S.W.3d 70 (Ky. 2006)
Damien Sublett was released on parole after having agreed
that he could be “subject to search and seizure if my officer
has reason to believe that I may have illegal drugs, alcohol,
volatile substances, or other contraband on my person or
property...I shall permit my Probation and Parole Officer to
visit my residence and place of employment at any time.”
When he became a suspect in a series of robberies in
Louisville, his parole officer went to his mother’s home and
obtained a consent to search from her. Nothing was found
at that time. The next day the police went back to the mother’s
home to arrest Sublett. The mother called Sublett and had
him come to her house, at which point he was arrested. The
police found out that he had been staying at Sublett’s sister’s
house. They contacted her and received consent to search
her house. That search produced significant evidence of
guilt. Eventually Sublett’s motion to suppress was denied,
and he entered a conditional plea of guilty.
The Kentucky Supreme Court affirmed. Most of the opinion
deals with Sublett’s arguments that the parole officer in this
case failed to follow the requirements of KRS 439.430.
Sublett’s assertion that KRS 439.430(1) does not specify
whether a parole officer may enter a house to arrest a parolee
was not preserved. The Court acknowledged that Payton v.
New York, 445 U.S. 573 (1980) does not authorize the
warrantless entry into a house to make an arrest. The Court
relied instead on Sublett’s mother’s consent to search her
house. “So regardless of whether KRS 439.430(1) grants
parole officers the authority to enter a home without a warrant
to make an arrest, the authority to enter this home was granted
by the consent of Ms. Sublett.”
The Court also rejected Sublett’s argument that parole
officers are not “peace officers” under KRS 439.430 and that
the arrest was unlawful because of the officer’s failure to
follow KRS 439.430, which contains certain requirements of
a parole officer when making an arrest. “Subsection 1 [of
KRS 439.430] presents two options to parole officers having
reasonable suspicion of parole violation: arrest the parolee
or deputize a peace officer to do so. Since Officer Johnson
arrested Sublett with Officer Hamilton’s assistance, there
was no need to deputize another to arrest him.” Further,
“the parolee may be arrested without a warrant by the parole
officer or may be arrested by another peace officer with a
parole officer’s written statement (which serves as a sufficient
warrant) setting forth the parole violation. But we do not
read this subsection as requiring a written statement of
parole violation to be delivered to the detention facility with
the parolee if the parolee is
arrested by a parole officer.”
Nor did the parole officer
need to submit a report to the
Commissioner of the
y
Department of Corrections. is ic
Ernie Lewis, Public Advocate
“[T]his requirement
obviously relates to parole revocation hearing:
parole was not revoked; rather, he was charged with the new
robbery offenses, constituting a parole violation.”
The Court further found that the search of Sublett’s backpack
and jeans, found at his sister’s house, did not violate the
Fourth Amendment. While the sister had consented to a
search of the house, the Court held that the consent did not
extend to the search of Sublett’s blue jeans, found beside a
couch in the living room, and the backpack, found in a
laundry bag in the kitchen, “not in areas where Sublett might
reasonably have had heightened expectations of privacy.”
These searches were justified by the specific terms of
Sublett’s parole. “Sublett consented to the search by
agreeing as a condition of release on parole that he was
subject to search upon a parole officer’s reasonable suspicion
of parole violation.”
Olden v. Commonwealth,
203 S.W.3d 672 (Ky. 2006)
An officer of the Princeton Police Department pulled over
Christy Gordon for speeding. During the process, a tin box
with crack cocaine was found in her pants. She told the
officers that she had been smoking crack with Olden in his
home. Based upon this statement, the officer obtained a
search warrant for Olden, his house, and his car. During the
execution of the warrant, 11.6 grams of crack cocaine,
marijuana seeds, and $1,610 in cash were found. He was
arrested and apparently released on bond. A month later, a
similar scenario occurred, with more cocaine and cash found,
followed again by Olden’s arrest. Olden was indicted and
following the denial of his motion to suppress and a jury
trial, he was convicted and sentenced to two twenty-year
prison terms.
The Kentucky Supreme Court affirmed the trial court in an
opinion written by Justice Scott. The Court rejected the
defendant’s claim that the officer improperly relied upon the
three informants who had been arrested following a traffic
stop. “[A]n ‘explicit and detailed description of alleged
wrongdoing, along with a statement that the event was
observed first-hand, entitles [the informant’s] tip to greater
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THE ADVOCATE
Volume 29, No. 1 January 2007
weight than might otherwise be the case...Such occurred in
this case as Officer McDowell testified to the statements
taken from the informants, whom he had just seen at
Appellant’s house.”
Krause v. Commonwealth,
2006 WL 2986470, 2006 Ky. LEXIS 259 (Ky. 2006)
A Kentucky State Police Officer arrested someone for
possession of cocaine. He told the trooper that he obtained
the cocaine from a house where Krause and Joe Yamada
lived. Trooper Manar decided that he did not have probable
cause to obtain a search warrant, and rather than conduct a
“knock and talk,” he decided to create “‘a false story that he
believed would more likely result in the residents’ consent
to search.”” Manar went with one or two other officers to
the house at 4:00 a.m. and said that a young girl had
reportedly just been raped, naming Yamada as the rapist.
Trooper Manar asked if he could enter “to determine whether
her description of the residence and its furnishings was
accurate.” His ruse worked, and during the “search” for
evidence of a sexual assault, drugs were found. Krause was
arrested and charged with possession of cocaine, pos
of drug paraphernailia, second offense, and poss
marijuana. He entered a conditional plea of guilty after the
trial court held that Krause had consented to the search and
that the drugs were found in plain view. The Court of Appeals
affirmed. Discretionary review was granted by the Supreme
Court.
The Kentucky Supreme Court, in an opinion by Justice
Graves, reversed. The Court examined whether the search
could be justified as a plain view search whereby the police
were where they had a right to be based upon Krause’s
consent. The Court was concerned that the consent was
only obtained through the use of a ruse. The Court both
used Adcock v. Commonwealth, 967 S.W. 2d 6 (Ky. 1998),
and distinguished it. In Adcock, the Court “held that ‘[t]he
guiding factor in determining whether a ruse entry, to execute
a search warrant, constitutes a “breaking” under the Fourth
Amendment should be whether the tactic frustrates the
purposes of the “knock and announce” rule.”” Based upon
this, the Court found that the consent could not be relied
upon. “First, given the time and nature of the trooper’s ruse,
we believe that Appellant and his roommate were in a
particularly vulnerable state. A knock on the door at 4:00
a.m. by uniformed police officers is a frightening event in
and of itself. Couple this knock with a heinous and shameful
accusation, such as the rape of a young girl, and nearly any
person would be overwhelmed and stunned. Second, Tooper
Manar’s tactics were unnecessary in this instance and not
based on any pressing or imminent tactical
consideration. ..Finally, we believe that if the type of ruse
utilized by Trooper Manar was sanctioned by this Court,
citizens would be discouraged from ‘aiding to the utmost of
their ability in the apprehension of criminals’ since they
would have no way of knowing whether their assistance
was being called upon for the public good or for the purpose
of incriminating them...Moreover, widespread use of this
type of tactic could quickly undermine ‘the set of values
reflecting society’s deeply felt belief that the criminal law
cannot be used as an instrument of unfairness.””
The Court was careful to say that they were not condemning
all subterfuge. “What distinguishes this case most, perhaps,
from the bulk of other ruse cases is the fact that Trooper
Manar exploited a citizen’s civic desire to assist police in
their official duties for the express purpose of incriminating
that citizen. The use of this particular ruse simply crossed
the line of civilized notions of justice and cannot be
sanctioned without vitiating the long established trust and
accord our society has placed with law enforcement.”
Justice Wintersheimer dissented, joined by Justice Roach.
Justice Wintersheimer believed that the consent of the
defendant and his roommate was sufficient. The dissenters
did not believe that the ruse was sufficient to render the
consent involuntary.
Williams v. Commonwealth,
2006 WL 3386328, 2006 Ky. LEXIS 305 (Ky. 2006)
The Lewis County Sheriff’s Office began to receive
complaints about too much traffic at Dr. Fortune Williams’
medical clinic. Their investigation revealed that many of the
cars going in and out of his office came from out-of-state.
Officers began to arrest people coming from the clinic for
driving under the influence of intoxicants. Both the Attorney
General’s Office and the Cabinet for Health and Family
Services became involved in investigating the activity at Dr.
Williams’ office. Bob Kelly, of the Office of Drug Control
with the Cabinet obtained a KASPER report that revealed
that Dr. Williams was “prescribing large quantities of multiple
controlled substances to several patients.” Officers sent
three informants to Dr. Williams posing as new patients. Dr.
Williams spoke with the “patients” for 3-15 minutes but did
not perform a physical exam. Thereafter, he prescribed
controlled substances for them. In subsequent visits, Dr.
Williams asked whether anything had changed since their
last visit. The Attorney General obtained the involvement
of the Kentucky Board of Medical Licensure. Their
investigator obtained the names of 35 patients from the
Attorney General and the Cabinet and went to Dr. Williams’
office where they seized the patients’ files. Based upon this
seizure, Dr. Williams was charged with four counts of
unlawfully prescribing a controlled substance. After his
motion to suppress, he was tried and convicted by a jury
and given 20 years in prison.
In an opinion written by Justice Graves, the Kentucky
Supreme Court reversed. Dr. Williams asserted that the search
was illegal as a search of a business conducted without a
Continued on page 36
35
THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 35
warrant. The Commonwealth relied upon New York v. Burger,
482 U.S. 691 (1987), which held that “a warrant was not
required for ‘administrative inspections’ of ‘commercial
property employed in “closely regulated” industries.’” The
Court rejected reliance upon Burger because “the
Commonwealth has failed to make any credible showing that
the search in this case was conducted for an administrative
rather than law enforcement purpose.”
The Court relied extensively upon Ferguson v. City of
Charleston, 532 U.S. 67(2001). There, the Court examined a
state hospital’s testing the urine of pregnant women and
turning over the results to the police when there was a
positive test. The Court “stated that in order for the hospital’s
warrantless search program to qualify as being
‘administrative’ or ‘special needs’ in nature, its immediate
purpose must be ‘divorced from the State’s general interest
in law enforcement.” Because the hospital was obtaining
the urine for the “specific purpose of incriminating those
patients,” the Ferguson Court held that the search was not
a special needs search but rather an illegal search.
Similarly, the Court rejected the Commonwealth’s assertion
that the search here was an administrative search conducted
pursuant to KRS 311.605(2). “[T]wo factors ultimately
undermine the Commonwealth’s position: (1) the raid in this
case was conducted for the immediate and sole purpose of
collecting incriminating evidence against Appellant; and (2)
there was excessive entanglement with law enforcement in
both the Board’s investigation of Appellant and in the
resulting warrantless raid at his office.”
The Court also considered the fact that a warrant should
have been obtained under the circumstances in this case.
“With the evidence available before the raid, we perceive
absolutely no reason whatsoever (and the Commonwealth
identifies none) why the miniscule delay in obtaining a
warrant would have frustrated the governmental purpose of
any of the authorities in this case.” “In plain words, neither
Section 10 of Kentucky’s Constitution nor the Fourth
Amendment permits administrative statutes or agencies to
be utilized or exploited as a means to conduct searches and
seizures for law enforcement purposes without first obtaining
(1) consent; or (2) a valid warrant. Accordingly, the evidence
seized during the raid must be excluded as being obtained in
violation of Appellant’s Fourth Amendment rights.”
The Court rejected Williams’ claim that his statements made
after the seizures should be suppressed as fruit of the
poisonous tree, relying upon Brown v. Illinois, 422 U.S. 590
(1975). “When the totality of the circumstances are weighed
and considered, we believe that Appellant’s statements are
sufficiently attenuated to purge them from the taint of the
illegal search, and thus, are admissible.” Those
circumstances included the voluntariness of the statements,
there was no intimidation or coercion, Dr. Williams asked
one of the agents to leave the room during questioning, Dr.
Williams was not under arrest or detention at the time of the
questioning, and the conduct of the officers was not flagrant.
The Court also rejected Williams’ claim that the KASPER
statute, KRS 218A.202(6)(a)&(b) was unconstitutional. In
doing so, the Court overruled Thacker v. Commonwealth,
80 S.W. 3d 451 (Ky. App. 2002), which had previously held
pursuant to Burger that KASPER was constitutional as an
administrative search. Instead, the statute was upheld under
the reasonable expectation of privacy criteria. “[W]e find
that examination of KASPER reports by authorized personnel
pursuant to KRS 218A.202(*)(a)&(b) does not constitute a
‘search’ under the Fourth Amendment or Section 10 of
Kentucky’s constitution, since citizens have no reasonable
expectation of privacy in this limited examination of and act
to their prescription records.” Relying upon Smith v.
Maryland, 442 U.S. 735 (1979), the Court held that a““KASPER.
report conveys only limited data to a restricted number of
persons. First, it does not report the dispensation of all
substances by practitioners or pharmacists but only those
substances classified as ‘Schedules II, III, IV, and V controlled
substances.’ Second, nothing ina KASPER report discloses
a patient’s condition, treatment, or communications with his
or her physician, as the report merely conveys the patient’s
name, the drug dispensed, the date of dispensing, the
quantity dispensed, the prescriber, and the dispenser. KRS
218A.202(4). Finally, KASPER data is not available to the
general public, but rather only to specified personnel who
certify that they are conducting ‘a bona fide specific
investigation involving a designated person.”
Bottom v. Commonwealth,
2006 WL 2846439,
2006 Ky. App. LEXIS 340 (Ky. Ct. App. 2006)
Melissa Bottom went into a farm supply store and asked to
buy dog collars. When told that they were not available,
she bought two 16 ounce bottles of iodine. This made the
store manager suspicious, so he called the police and gave
them the license number of Melissa’s car. The police went to
her house and saw her car there and decided to talk with her
rather than seek a search warrant. Melissa and Brian Bottom
came out on the porch to talk with the police. They noticed
iodine stains on Melissa’s hands, and smelled the odor of
methamphetamine, so they asked for permission to search
the house. Brian refused. The police then left to obtain a
search warrant, leaving behind other officers to ensure that
the Bottoms would not go back into their house. While the
officers were gone, Brian offered the police $1000 each to
allow them to go back into the house for 15 minutes. When
the police returned with a warrant they searched the house
and found marijuana and components of the manufacture of
meth as well as $2,000 in cash. After being indicted, the
Bottoms moved to suppress. The court overruled the motion,
36
THE ADVOCATE
Volume 29, No. 1 January 2007
ruling that there was a reasonable and articulable suspicion
existing to conduct a “knock and talk” at the Bottoms’ house.
The Bottoms entered conditional pleas of guilty.
In an opinion by Judge Huddleston joined by Judges Combs
and Knopf, the Court of Appeals affirmed. They held that in
order to conduct a knock and talk, that is to go to a person’s
house, the police have to have no level of suspicion. They
rejected the Bottoms’ assertion that a reasonable and
articulable suspicion was required in order to go to a
suspects’ home and ask for consent to search.
United States v. Paulette
457 F. 3d 601 (6" Cir. 2006)
On November 1, 2002, the Memphis Police Department
observed a drug transaction between Paulette and another
person. They went to him, patted him down, and found
marijuana. Upon hearing that he was residing with his aunt,
the officers went to the aunt’s house and received permission
to search. They found drugs, an assault rifle, and ammunition
in the area where Paulette slept. He was charged with drug
possession and being a felon in possession of a firearm. He
pled guilty to the drug counts and went to trial on the firearm
counts. His motion to suppress was denied. After being
convicted he appealed to the Sixth Circuit.
The Court affirmed the lower court in a decision written by
Judge Schwarzer joined by Judges Gibbons and Cook. The
Court held that there was a reasonable suspicion sufficient
to detain and pat down Paulette. “Viewing the totality of the
circumstances, the officers had a reasonable suspicion that
Paulette was engaged in criminal activity based upon his
hand movements consistent with drug-dealing activity,
efforts to evade the police upon noticing them, and presence
ina high crime area. See Illinois v. Wardlow, 528 U.S. 119,
124, 120 S.Ct. 673, 145 L. Ed. 2d 570 (2000). The officers were
also justified in searching Paulette for their own protection,
given the frequency with which drug dealers arm themselves,
Paulette’s insistent movements towards his right pocket,
and his presence in a high crime neighborhood.”
United States v. McPhearson,
2006 WL 3392616, 2006 Fed.App. 0435P,
2006 U.S. App. LEXIS 29129 (6 Cir. 2006)
Officers Mathis and Wiser had a warrant for the arrest of
Martedis McPhearson in Jackson, Tennessee in December
of 2003. They arrested him on his front porch and in the pat-
down discovered crack cocaine in his pocket. Their request
to search his house was refused, so they obtained a search
warrant. During the execution of the search warrant they
found additional crack cocaine and firearms. McPhearson
was charged with possession of crack cocaine, with intent
to distribute, and being a felon in possession of a firearm as
well as possession of a firearm during and in relation to a
drug-trafficking crime.” His motion to suppress was granted,
with the trial court saying that “[t]here are cases that have
held that when the defendant is arrested at his residence
with a large quantity of drugs, then that is an indication that
there may have been drug paraphernalia in the house. There
are cases that hold that a person who is arrested at his home
and gives deceptive answers to the policemen at the time of
the arrest about where he had gotten the drugs or where he
had been—deceptive answers along with an arrest with drugs
in his pocket might be enough for probable cause. The
problem in this case, though, is that there’s none of that in
the affidavit.” The government appealed.
Ina decision by the Sixth Circuit written by Judge Gibbons
joined by Judge Holschuh, the lower court was affirmed.
The government had failed to raise the protective sweep
issue in the court below, and thus that was not preserved for
appeal. The Court held that the affidavit was not sufficient
to support probable cause. “The affidavit in this case did no
more than state that McPhearson, who resided at 228 Shelby
Street, was arrested for a non-drug offense with a quantity
of crack cocaine on his person. These averments were
insufficient to establish probable cause because they do
not establish the requisite nexus between the place to be
searched and the evidence to be sought.” The Court
rejected the government's assertion that being arrested at a
home in possession of drugs is sufficient to believe that
drugs will be found inside the house.
The Court also rejected the government's position that the
evidence should be admitted based upon the officers’ good
faith reliance upon the warrant. The good faith exception
was rejected based upon exception number three: “when
the affidavit is so lacking in indicia of probable cause that a
belief in its existence is objectively unreasonable...” United
States v. Leon, 468 U.S. 897 (1984). A bare bones affidavit “is
one that merely ‘states suspicions, beliefs, or conclusions,
without providing some underlying factual circumstances
regarding veracity, reliability, and basis of knowledge.”” “The
affidavit in this case was so bare bones as to preclude any
reasonable belief in the search warrant that the affidavit
supported. As noted above, the affidavit failed to establish
a nexus between McPhearson’s residence and evidence of
wrongdoing that would support a finding of probable cause.”
Judge Rogers wrote a dissenting opinion. “When officials
read an affidavit describing how a man emerged from his
single-family residence with over six grams of crack cocaine
and how agents on the scene believed that there were more
drugs inside the dwelling, the officials could reasonably
believe that the search-warrant affidavit adequately
described probable cause to justify a search of the
dwelling. ..If there was, in hindsight, no probable cause for
the search, the officials executing a warrant based on that
affidavit are still entitled to the good-faith exception in United
States v. Leon....”
Continued on page 38
37
THE ADVOCATE
Volume 29, No. 1 January 2007
Continued from page 37
United States v. Garrido,
467 F.3d 971, 2006 Fed.A pp. 0416P (6" Cir. 2006)
In May of 2003, Kentucky Vehicle Enforcement Officers saw
two trucks, one of which was a “bobtail tractor” driven by
Victor Garrido. Garrido’s truck was following the first truck
too closely. The officers decided to stop both trucks. During
the inspection of Garrido’s truck, the officers became
suspicious. Further contact with the DEA revealed that
Garrido had been involved in a “drug-related incident” in
1997, although that was never proven. After over an hour-
long inspection, the officer then began to ask Garrido several
questions followed by a request to search the tractor. Garrido
gave verbal consent but declined to sign a waiver. Another
officer arrived to conduct a canine search, during which the
dog alerted to the presence of narcotics. After five minutes
or so, Garrido asked the officers to stop their search. The
officer told Garrido that because the dog had alerted they no
longer needed his consent to search the tractor. Eventually
the officers found 161 grams of heroin ina plastic bag in the
headliner compartment. Garrido was arrested and charged
initially in state court, with the federal government soon
picking it up. Garrido was charged with possessing 100
grams or more of heroin with the intent to distribute. A
suppression hearing was held and the motion denied.
Garrido was tried and convicted, and he appealed.
Ina decision written by Judge Gilman joined by Judges Guy
and Rogers, the Sixth Circuit affirmed. The Court first held
that there was probable cause to believe that Garrido had
committed a traffic offense. “What Garrido is really getting
at is that the traffic congestion further demonstrates that the
officers could not have been in a traffic-enforcement mode
when they selected his truck for a roadside stop. That may
very well be true. Again, however, the officers’ subjective
motivation for detaining Garrido is irrelevant so ‘long as
[they] had probable cause to initially stop the vehicle.’...
Because the district court assessed the credibility of the
testifying officers and determined that Garrido in fact violated
the traffic laws, we find no error in its determination that the
initial traffic stop was lawful.”
The Court also held that the officers could legitimately hold
Garrido’s tractor and conduct a thorough inspection for over
an hour. While Kentucky law does not require a reasonable
suspicion prior to conducting a thorough inspection, the
Court did not consider whether the Kentucky law is
constitutional or not. Rather, the Court found that the officers
had a reasonable belief that a safety violation was occurring,
particularly in the “fifth wheel” area of the truck, which
appeared to be dry and rusty and thus not suitable for
attaching to a trailer.
Next the Court held that detaining Garrido after the safety
inspection was complete was reasonable. The question here
is whether the officers had a reasonable suspicion sufficient
to detain Garrido further under the totality of the
circumstances. The Court attributed eight factors found by
the district court to constitute reasonable suspicion to be
sufficient. “The district court’s emphasis on the eighth
factor...the fact that the officers’ attempts to corroborate
Garrido’s relationship with E-Freight indicated that no such
relationship existed—is particularly persuasive...these
events, when combined with the fact that Garrido’s logbook
showed that the tractor was leased to the 3W company rather
than to E-Freight, could reasonably have caused the officers
to believe that Garrido was lying in an attempt to conceal
unlawful activity...Because their initial attempts to
corroborate the veracity of Garrido’s story had done nothing
to dispel their suspicions, the officers acted reasonably in
continuing to question Garrido on the same subjects, even if
that questioning stretched slightly beyond the completion
of the safety inspection.”
SHort VIEW...
United States v. Delfin-Colina, 464 F.3d 392 (3" Cir. 2006).
Whether a police officer is correct in her interpretation
of the legal basis for a stop is irrelevant under Whren v.
United States, 517 U.S. 806 (1996). Thus, where the
police officer believed he could stop someone for having
anecklace hanging from a rear view mirror and made the
stop on that basis, it did not violate the Fourth
Amendment when the law correctly allowed for a stop
where something was hanging from the rear view mirror
that could materially obstruct the driver’s vision. “In
situations where an objective review of the record
evidence establishes reasonable grounds to conclude
that the stopped individual has in fact violated the traffic-
code provision cited by the officer, the stop is
constitutional even if the officer is mistaken about the
scope of activities actually proscribed by the cited
traffic-code provision.”
State v. Gant, 143 P.3d 379 (Ariz. Ct. App. 2006). Once a
person is secured in a police car, the police may not
then search the person’s car incident to the arrest. Under
New York v. Belton, 453 U.S. 454 (1981), the search
incident to arrest exception to the warrant requirement
does not apply unless the police have reason to believe
that there is a threat to them posed by the defendant or
that there is evidence located in the car. It should be
noted that while Thornton v. United States, 541 U.S. 615
(2004), recently discussed this exception for “recent
occupants,” 5 U.S. Supreme Court justices expressed
dissatisfaction with the expansion of the Belton
exception to persons arrested far from the car. “In short,
neither the Arizona Supreme Court nor the United States
Supreme Court has characterized Belton as relieving
the state of its duty to demonstrate the appropriate
38
THE ADVOCATE
Volume 29, No. 1 January 2007
constitutional basis for a search conducted incident to
an arrest... But, here, the state has presented no concrete
evidence whatsoever that, when the officers searched
Gant’s car, there was any risk of the arrestees acquiring
a weapon in Gant’s car or destroying any evidence
therein.”
United States v. Novak, 453 F.Supp.2d 249 (D. Mass.
2006). It violates the Fourth Amendment to monitor a
phone call from an inmate at a jail to his attorney.
“[B]alancing the institution’s need to maintain order and
safety against the reduced right to privacy of inmates,
the monitoring of prisoners’ phone calls generally is
not unreasonable...In the case of attorney-client
communications, the balancing of the institution’s need
for security against the inmate’s privacy interest tilts
heavily in favor of the inmate’s privacy interest.”
United States v. Long, 64 M.J. 57 (C.A.A.F. 2006). A
soldier has a reasonable expectation of privacy in the e-
mails he sends over a Department of Defense network.
This was so despite the fact that there was a logon
message warning users that their e-mails could be
monitored.
United States v. Mendez, 467 F.3d 1162 (9" Cir. 2006).
Mendez was stopped for a traffic violation. During the
stop, the officers found out that Mendez had been a
member of the “Latin Kings” and that he had served
time in prison for a weapons violation. The police
continued to question Mendez and eventually he agreed
that he had a weapon in the car, which led to his
conviction in federal court for being a felon in possession
ofa firearm. The 9th Circuit held that the police violated
Mendez’ Fourth Amendment rights when they continued
to question him regarding matters outside the scope of
the traffic violation. The fact that Mendez had been a
gang member, the fact that Mendez had been in prison,
and those two facts together did not constitute a
reasonable suspicion. “To hold that the fact that an
individual was previously convicted ofa crime, and was
or is a gang member, is sufficient cause to interrogate
him about general criminal activity whenever he may be
subjected to a Terry stop would infringe upon the
fundamental constitutional rights of many currently law-
abiding citizens...Although persons who have
committed crimes may be afforded lesser Fourth
Amendment rights while on probation or parole, once
that process is completed and their debt to society has
been fully paid, they are entitled to the same protection
against unreasonable searches and seizures as all other
individuals.” The Court noted the racial profiling aspect
of the case. “Reasonable suspicion may not be ‘based
on broad profiles which cast suspicion on entire
categories of people without any individualized
suspicion of the particular person to be stopped.”
6. State v. Hisey, 723 N.W.2d 99 (Neb. Ct. App. 2006). The
Nebraska Department of Motor Vehicles is part of the
law enforcement team and can be expected to be deterred
by the application of the exclusionary rule. Thus, the
good faith exception does not apply to mistakes made
by them in the collection and retention of motor vehicle
licensing records. “The purpose of the exclusionary rule
is to deter police and adjuncts of law enforcement from
conduct that will result in a denial of rights to
people...We find that the threat of exclusion of evidence
will likely encourage DMV employees charged with
recording and transmitting information on license
impoundments to exercise greater caution. The purpose
of the exclusionary rule will therefore be served if the
evidence from the arrest in this case is suppressed.”
Inve Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App.
2006). It violates the Fourth Amendment to require the
giving ofa DNA sample to a person charged with, rather
than convicted of, a crime. Obtaining a DNA sample
from one simply charged with a crime requires the
obtaining of a search warrant.
State v. Lawson, 144 P.3d 377 (Wash. Ct. App. 2006).
The police may not enter without a warrant into a shed
upon the smelling of a chemical associated with the
manufacture of methamphetamine. “Generally, we have
endorsed an emergency aid exception only where the
officers reasonable believed that a specific person or
persons needed immediate help for health or safety
reasons....We are unwilling to authorize warrantless
entries where the officers express only a generalized
fear that methamphetamine labs and their ingredients
are dangerous to people who might live in the
neighborhood.”
Joseph vy. State, 145 P.3d 595 (Alaska Ct. App. 2006).
The Alaska Court of Appeals has decided that California
v. Hodari D., 499 U.S. 621 (1991) is too restrictive and
does not sufficiently protect the rights to privacy of
persons in Alaska. Hodari D. had held that a person is
not “seized” for purposes of the Fourth Amendment
until he submits to a show of authority by the police, or
is physically restrained by them. I
EEE”
The 4th Amendment and the personal rights it se-
cures have a long history. At the very core stands the
right of a man to retreat into his own home and there
be free from unreasonable governmental intrusion.
— Potter Stewart
————
39
THE ADVOCATE
Volume 29, No. 1 January 2007
DespiTE FEwer Lockups,
NYC Has SEEN Bic Drop IN CRIME
By Michael Powell
Washington Post Staff Writer
The correction commissioner walks down a long row of cells
painted blue, his footsteps echoing inside the massive Rikers
Island jail block.
Every cell is empty, and he couldn’t be happier.
“What we’ve seen in New York is the fastest drop in crime in
the nation, and we did it while locking up a lot less people,”
says Commissioner Martin F. Horn, who oversees the city
lockups, including barbed-wire-ringed Rikers Island. “The
only people using these cells now are the directors and actors
from ‘Law and Order.’ “
It is one of the least-told stories in American crime-fighting.
New York, the safest big city in the nation, achieved its now-
legendary 70-percent drop in homicides even as it locked up
fewer and fewer of its citizens during the past decade. The
number of prisoners in the city has dropped from 21,449 in
1993 to 14,129 this past week. That runs counter to the national
trend, in which prison admissions have jumped 72 percent
during that time.
Nearly 2.2 million Americans now live behind bars, about
eight times as many as in 1975 and the most per capita in the
Western world. For three decades, Congress and dozens of
legislatures have worked to write tougher anti-crime
measures. Often the only controversy has centered on how
to finance the construction of prison cells.
New York City officials, by contrast, are debating whether to
turn some old cells in downtown Brooklyn into luxury shops.
“If you want to drive down crime, the experience of New
York shows that it’s ridiculous to spend your first dollar
building more prison cells,” said Michael Jacobson, who
served as New York’s correction commissioner for former
mayor Rudolph W. Giuliani (R) and now is president of the
Vera Institute of Justice, which studies crime-fighting trends
worldwide.
“T can’t tell you exactly why violent crime in New York
declined by twice the national rate,” he said. “But I can tell
you this: It wasn’t because we locked up more people.”
Perhaps as intriguing is the experience in states where officials
spent billions of dollars to build prisons. From 1992 to 2002,
Idaho’s prison population grew by 174 percent. the largest
percentage increase in the nation. Yet violent crime in that
state rose by 14 percent. In West Virginia, the prison
population increased by 171 percent, and violent crime rose
10 percent. In Texas, the prison population jumped by 168
percent, and crime dropped by 11 percent.
The debate about the degree to which the United States’
record rate of imprisonment has driven down crime is more
than a dance on the head ofa statistical pin. FBI data released
in September showed that violent crime — rape, homicide
and robbery — edged up by 2.2 percent last year. That is far
from the violent heights of the early 1990s, but Jacobson
and other criminologists are concerned that a resurgence in
crime could cast a shadow on an intriguing cultural moment.
In the past few years, legislators in such conservative states
as Louisiana and Mississippi have passed sentencing
reforms. Kansas and Nebraska are reconsidering prison
expansion in favor of far less expensive drug treatment. The
United States annually spends about $60 billion on prisons.
“Crime is down and people realize, sure, we can lock up more
people, but that’s why your kid’s pre-K class has 35 kids
all the money is going to prisons,” Jacobson says. “There’s
a sense of urgency that for the first time in two decades, we
can talk about whether it makes sense to lock up even more
people.”
Reprinted with permission by the Washington Post.
www.washingtonpost.com [i
It’s important for me to know that [defendants] know that I’m going to be there for them — standing in front of
them, standing beside them, standing behind them. Before the commonwealth, with all of its power, gets to them,
they gotta go through me.
— Stephanie Page
40
THE ADVOCATE Volume 29, No. 1 January 2007
FAUBUSH 2006
73 Attorneys were trained this October at DPA’s Litigation Persuasion Institute. Tracks were availabe in DUI,
Bring Your Own Case, and Juvenile. The 2007 Institute will be held October 7-12.
THE ADVOCATE
Volume 29, No. 1 January 2007
PRACTICE CORNER
LitiGaTION Ties & COMMENTS
“Practice Corner” is brought to you by the staff in DPA’s
Post Trial Services Division.
An Evidentiary Hearing is
Required on a Motion To Suppress
In some trial courts, suppression motions are often ruled
upon after only motion hour attorney arguments based upon
a police report or some basic stipulated version of the facts.
This procedure raises difficulty on appeal and is inconsistent
with the Kentucky criminal rules.
Kentucky Rule of Criminal Procedure 9.78 says:
If at any time before trial a defendant moves to
suppress ..., the trial court shall conduct an
evidentiary hearing outside the presence of the jury
and at the conclusion thereof shall enter into the
record findings resolving the essential issues of
fact raised by the motion or objection and necessary
to support the ruling.
In Commonwealth v. Charles Jones, 2006 WL 3386490 (Ky.
2006), the Kentucky Supreme Court was faced with a “dearth
of evidence” about a questionable search because no
evidentiary hearing had been conducted. In the trial court,
the parties had stipulated that an officer would testify to the
contents of his written report. Although the trial court upheld
the search, the Court of Appeals reversed. After granting
discretionary review, the Supreme Court cited RCr 9.78 to
say that an evidentiary hearing was required. The Court
used Black’s Law Dictionary to define evidentiary hearing
as “[a] hearing at which evidence is presented, as opposed
to a hearing at which only legal argument is presented.”
Plain Feel Really Means Plain Feel
In the Jones case mentioned above, the limited issue on
appeal was whether evidence found during a protective pat-
down of the defendant had to be suppressed. While serving
a DVO on Mr. Jones, an officer noticed a bulge in his pocket.
The officer recognized that it was a pill bottle and “asked”
Jones to remove it. Jones pulled it out, opened it up, and
flung the contents (oxycontin pills) into a nearby ditch.
The Supreme Court ruled that the evidence had to be
suppressed because, under the circumstances, the illegal
nature of the contents of the pill bottle was not readily
apparent. Under the plain feel doctrine, evidence may be
seized if, during a lawful patdown of the outer clothing of a
suspect, an officer “feels an object whose contour or mass
makes its identity immediately apparent.” Commonwealth v.
Whitmore, 92 S.W.3d 76, 80 (Ky. 2002). That was not the
case in Jones because, as said by the Court, “[tJhere is
nothing inherently incriminating about carrying a pill bottle
in one’s pocket.”
For future practice, Jones is a very helpful case, but it has
limitations. The case’s strong emphasis on the illegal nature
being immediately apparent will provide support for many
challenges to questionable searches where law enforcement
officers reach into suspects’ pockets and then later claim
that their actions were supported by the plain feel doctrine.
The limitations may come from the procedural shortcomings
in Jones, described above. The Supreme Court specifically
mentioned elements that could have been in a more fully
developed record to support the search (i.e., officer’s
training, high crime area, drug-related observations, etc.).
Still, the Supreme Court ordered that the case be published
and it unquestionably sets a high standard for when
warrantless “plain feel” searches will be acceptable.
Object to “Send A Message” Closing Arguments
If you regularly practice in a courtroom where the prosecutor
likes to tell a jury to “send a message” to the community,
please object. Such statements have long been held to be
improper, but rarely result in relief in part because they are
almost never objected to.
In Lee Roy Brewer v. Commonwealth, 2006 WL 3386645
(Ky. 2006), the Commonwealth Attorney said the
following:
Whenever I am trying to do this job, Iam trying my
best to send that signal out there to people about
what’s going to happen to them, if they commit
these types of crimes. I want the person who’s
involved to understand the way the community feels
about this type of conduct. So, your sentence here
tonight is going to send a message.
ea
It’s also going to send a message to other people
that want to be involved in this, and you heard the
42
THE ADVOCATE
Volume 29, No. 1 January 2007
list and we’ve got one. And, they’re going to hear
about the way an Owen County jury views all of
this, and so that’s important. The community’s
going to know about it. They’re going to know
whether or not we have the backbone to stand up
to it. And, so there is a message with your sentence
and you’ve got to consider that.
The Supreme Court found this portion of the closing
argument “troubling,” but said that, because it was not
objected to, it did not merit reversal. It ended its analysis,
however, with a strong warning.
Lest this opinion be misconstrued, we do find that
the Commonwealth’s exhortation to this jury to
“send a message” to the community was improper.
We strongly urge the prosecutors throughout the
Commonwealth to use extreme caution in making
similar arguments. Indeed, had a timely objection
been made, we may have found the Commonwealth’s
comments to constitute reversible error.
Brewer, supra
Assuming the Court’s warning does not magically eliminate
“send a message” arguments from Kentucky courthouses,
we must be prepared to object at the trial level. Only then
can we, if necessary, gain relief by raising the preserved
issue on appeal before a court that appears to be looking for
an opportunity to show it’s serious about stopping such
closing statements.
Practice Corner is always looking for good tips. Ifyou have
a practice tip to share, please send it to Damon Preston,
Appeals Branch Manager, 100 Fair Oaks Lane, Suite 302,
Frankfort, KY 40601. gy
Pusiic ADVOCACY RECRUITMENT
The Kentucky Department of Public Advocacy seeks compassionate, dedicated lawyers
with excellent litigation and counseling skills who are committed to clients, their communities,
and social justice. If you are interested in applying for a position please contact:
Londa Adkins
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Tel:(502) 564-8006; Fax:(502) 564-7890
E-Mail: Londa.Adkins@ky.gov
Further information about Kentucky public defenders is found at: http://dpa.ky.gov/
Information about the Louisville-Jefferson County Public Defender’s Office is found at:
http://www. louisvillemetropublicdefender.com/ jy
Londa Adkins
43
Kentuckiy*
THE ADVOCATE
PRESORTED STANDARD
U.S. POSTAGE PAID
LEXINGTON, KY
PERMIT # 1
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Upcoming DPA, NCDC, NLADA & KACDL Education
** DPA **
Death Penalty Litigation Institute
Louisville, KY
April 16-20, 2007
Annual Conference
Louisville, KY
June 19-21, 2007
Litigation Practice Institute
Kentucky Leadership Center
Faubush, KY
October 7-12, 2007
NOTE: DPA Education is open only to
criminal defense advocates.
For more information:
http://dpa.ky.gov/education.php
For more information regarding KACDL
programs:
Charolette Brooks, Executive Director
Tel: (606) 677-1687
Fax: (606) 679-3007
Web: kacdl2000@yahoo.com
JES OS SHOR obbiiik
For more information regarding NLADA
programs:
NLADA
1625 K Street, N.W., Suite 800
Washington, D.C. 20006
Tel: (202) 452-0620
Fax: (202) 872-1031
Web: http://www.nlada.org
FESS III Ton edie ae
For more information regarding NCDC
programs:
Rosie Flanagan
NCDC, c/o Mercer Law School
Macon, Georgia 31207
Tel: (478) 746-4151
Fax: (478) 743-0160
Web: http://www.ncde.net/
** KBA **
Annual Seminar
Louisville, KY
June 2007
** NCDC **
Theories and Themes
Atlanta, Georgia
March 9 - 11,2007
** NLADA **
Appellate Defender Training
January 18-21, 2007
