JBN
AMERICAN BAR ASSOCIATION
Defending Liberty
Pursuing Justice
EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Kentucky Death Penalty Assessment Report
An Analysis of Kentucky’s Death Penalty Laws, Procedures, and Practices
“A system that takes life must first give justice.”
John J. Curtain, Jr., Former ABA President
December 2011
AMERICAN BAR ASSOCIATION
The materials contained herein represent the assessment solely of the ABA Death Penalty
Moratorium Implementation Project and the Kentucky Death Penalty Assessment Team
and have not been approved by the House of Delegates or the Board of Governors of the
American Bar Association and, accordingly, should not be construed as representing the
policy of the American Bar Association.
These materials and any forms or agreements herein are intended for educational and
informational purposes only.
This document has been produced with the financial assistance of the European Union.
The contents of this report are the sole responsibility of the American Bar Association
and can under no circumstances be regarded as reflecting the position of the European
Union.
Significant portions of the research were performed on Westlaw courtesy of West Group.
Copyright 2011, American Bar Association
ACKNOWLEDGEMENTS
The American Bar Association Death Penalty Moratorium Implementation Project (the Project)
is pleased to present this publication, Evaluating Fairness and Accuracy in State Death Penalty
Systems: The Kentucky Death Penalty Assessment Report.
The Project expresses its great appreciation to all those who helped to develop, draft, and
produce the Kentucky Assessment Report. The efforts of the Project and the Kentucky Death
Penalty Assessment Team were aided by many lawyers, academics, judges, and others who
presented ideas, shared information, and assisted in the examination of Kentucky’s capital
punishment system.
Particular thanks must be given to Paula Shapiro, Ryan Kent, Sarah Turberville, and Mark
Pickett, the Project's staff attorneys who spent countless hours researching, writing, editing, and
compiling this report. In addition, we would like to thank the American Bar Association Section
of Individual Rights and Responsibilities for its substantive, administrative, and financial
contributions. In particular, we would like to thank Ginna Anderson, Karen Arenas, Brittany
Benowitz, Christopher “Kip” Hale, Katherine Incantalupo, Liat Krawczyk, and Tanya Terrell for
assisting in the final production of the Report.
Thanks also must go to the Project’s law clerks, Kimberly Cissel, Sarah Jurick, and Neil Diskin
for their assistance in fact-checking and proof-reading sections of the Report. We also would
like to recognize the contributions made by Ty Andrews, Mathew George, Justine Guyer,
Elizabeth Iannuzzi, Lori Leibowitz, Sarah Qureshi, Jayantha Ramasubramanyam, Kirstin
Ramsay, Jaime Turmer Campbell, Jennifer Tytel, and Christine Waring.
Lastly, in this publication, the Project and the Assessment Team have attempted to note as
accurately as possible information relevant to the Kentucky death penalty. The Project would
appreciate notification of any factual errors or omissions in this Report so that they may be
corrected in any future reprints.
TABLE OF CONTENTS
INTRODUCTION..
CHAPTER ONE: AN OVERVIEW OF KENTUCKY’S DEATH PENALTY SYSTEM.
lig DEMOGRAPHICS OF KENTUCKY’S DEATH ROW.......
I. THE STATUTORY EVOLUTION OF KENTUCKY’S DEATH PENALTY SCHEME
tl. THE PROGRESSION OF A KENTUCKY DEATH PENALTY CASE FROM ARREST TO EXECUTION.... 15
CHAPTER TWO: COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER
TYPES OF EVIDENCE.
INTRODUCTION TO THE ISSUE
L FACTUAL DISCUSSION.
I. ANALYSIS ....
CHAPTER THREE: LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS...
INTRODUCTION TO THE ISSUE...
L FACTUAL DISCUSSION.
I. ANALYSIS ....
CHAPTER FOUR: CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES...
INTRODUCTION TO THE ISSUE...
L FACTUAL DISCUSSION.
I. ANALYSIS ....
CHAPTER FIVE: PROSECUTORIAL PROFESSIONALISM.
INTRODUCTION TO THE ISSUE
L FACTUAL DISCUSSION.
I. ANALYSIS ....
CHAPTER SIX: DEFENSE SERVICES...
INTRODUCTION TO THE ISSUE...
L FACTUAL DISCUSSION.
I. ANALYSIS ....
CHAPTER SEVEN: THE DIRECT APPEAL PROCESS.....
INTRODUCTION TO THE ISSUE ....
L FACTUAL DISCUSSION.
I. ANALYSIS ....
CHAPTER EIGHT: STATE POST-CONVICTION PROCEEDINGS.
INTRODUCTION TO THE ISSUE...
if FACTUAL DISCUSSION.
I. ANALYSIS ....
INTRODUCTION TO THE ISSUE...
if FACTUAL DISCUSSION.
I. ANALYSIS
INTRODUCTION TO THE ISSUE........
i FACTUAL DISCUSSION...
I. ANALYSIS ....
CHAPTER ELEVEN: JUDICIAL INDEPENDENCE...
INTRODUCTION TO THE ISSUE...
L FACTUAL DISCUSSION.
I. ANALYSIS ....
CHAPTER TWELVE: RACIAL AND ETHNIC MINORITIES...
INTRODUCTION TO THE ISSUE...
if FACTUAL DISCUSSION.
I. ANALYSIS ....
CHAPTER THIRTEEN: MENTAL RETARDATION, MENTAL ILLNESS, AND THE DEATH
INTRODUCTION TO THE ISSUE...
i FACTUAL DISCUSSION.
I. ANALYSIS-MENTAL RETARDATION ..
Il. ANALYSIS - MENTAL ILLNESS...
b RSES Y
EXECUTIVE SUMMARY
I. INTRODUCTION: GENESIS OF THE ABA’S DEATH PENALTY ASSESSMENTS PROJECT
Fairness and accuracy together form the foundation of the American criminal justice system. As
the United States Supreme Court has recognized, these goals are particularly important in cases
in which the death penalty is sought. Our system cannot claim to provide due process or protect
the innocent unless it provides a fair and accurate system for every person who faces the death
penalty.
Over the course of the past thirty years, the American Bar Association (ABA) has become
increasingly concerned that capital jurisdictions too often provide neither fairness nor accuracy
in the administration of the death penalty. In response to this concern, on February 3, 1997, the
ABA called for a nationwide moratorium on executions until serious flaws in the system are
identified and eliminated. The ABA urges capital jurisdictions to (1) ensure that death penalty
cases are administered fairly and impartially, in accordance with due process, and (2) minimize
the risk that innocent persons may be executed.
In the autumn of 2001, the ABA, through the Section of Individual Rights and Responsibilities,
created the Death Penalty Moratorium Implementation Project (the Project). The Project collects
and monitors data on domestic and international death penalty developments, conducts analyses
of governmental and judicial responses to death penalty administration issues, publishes periodic
reports, encourages lawyers and bar associations to press for moratoriums and reforms in their
jurisdictions, convenes conferences to discuss issues relevant to the death penalty, and
encourages state government leaders to establish moratoriums, undertake detailed examinations
of capital punishment laws and processes, and implement reforms.
To assist the majority of capital jurisdictions that have not yet conducted comprehensive
examinations of their death penalty systems, the Project began in February 2003 to examine
several U.S. jurisdictions’ death penalty systems and preliminarily determine the extent to which
they achieve fairness and minimize the risk of executing the innocent. It undertook assessments
examining the administration of the death penalty in Alabama, Arizona, Florida, Georgia,
Indiana, Ohio, Pennsylvania, and Tennessee and released reports on these states’ capital
punishment systems from 2006 through 2007. A summary report was also published in 2007 in
which the findings of the eight reports completed to date were compiled. Due in large part to the
success of the state assessments produced in the eight jurisdictions described above, the Project
began a second round of assessments in late 2009. In addition to this report on Kentucky, the
Project also plans to release reports in, at a minimum, Missouri, Texas, and Virginia.
The assessments are not designed to replace the comprehensive state-funded studies necessary in
capital jurisdictions, but instead are intended to highlight individual state systems’ successes and
inadequacies. Past state assessment reports have been used as blueprints for state-based study
commissions on the death penalty, served as the basis for new legislative and court rule changes
on the administration of the death penalty, and generally informed decision-makers’ and the
public’s understanding of the problems affecting the fairness and accuracy of their state’s death
penalty system.
All of these assessments of state law and practice use as a benchmark the protocols set out in the
ABA Section of Individual Rights and Responsibilities’ 2001 publication, Death without J ustice:
A Guide for Examining the Administration of the Death Penalty in the United States (the
Protocols). While the Protocols are not intended to cover exhaustively all aspects of the death
penalty, they do cover seven key aspects of death penalty administration: defense services,
procedural restrictions and limitations on state post-conviction and federal habeas corpus
proceedings, clemency proceedings, jury instructions, an independent judiciary, racial and ethnic
minorities, and mental retardation and mental illness. Additionally, the Project added five new
areas to be reviewed as part of the assessments in 2006: preservation and testing of DNA
evidence, identification and interrogation procedures, crime laboratories and medical examiners,
prosecutors, and the direct appeal process.
Each assessment has been or is being conducted by a state-based assessment team. The teams
are comprised of or have access to current or former judges, state legislators, current or former
prosecutors, current or former defense attorneys, active state bar association leaders, law school
professors, and anyone else whom the Project felt was necessary. Team members are not
required to support or oppose the death penalty or a moratorium on executions.
The state assessment teams are responsible for collecting and analyzing various laws, rules,
procedures, standards, and guidelines relating to the administration of the death penalty. In an
effort to guide the teams’ research, the Project created an Assessment Guide that detailed the
data to be collected. The Assessment Guide includes sections on the following: (1) death-row
demographics, (2) DNA testing, and the location, testing, and preservation of biological
evidence, (3) law enforcement tools and techniques, (4) crime laboratories and medical examiner
offices, (5) prosecutors, (6) defense services during trial, appeal, and state post-conviction and
clemency proceedings; (7) direct appeal and the unitary appeal process, (8) state post-conviction
relief proceedings, (9) clemency, (10) jury instructions, (11) judicial independence, (12) racial
and ethnic minorities, and (13) mental retardation and mental illness.
The findings of each assessment team provide information on how state death penalty systems
are functioning in design and practice and are intended to serve as the bases from which states
can launch comprehensive self-examinations, impose reforms, or in some cases, impose
moratoria. Because capital punishment is the law in each of the assessment states and because
the ABA takes no position on the death penalty per se, the assessment teams focused exclusively
on capital punishment laws and processes and did not consider whether states, as a matter of
morality, philosophy, or penological theory, should have the death penalty.
This executive summary consists of a summary of the findings and proposals of the Kentucky
Death Penalty Assessment Team. The body of this Report sets out these findings and proposals
in more detail, followed by an Appendix. The Project and the Kentucky Death Penalty
Assessment Team have attempted to describe as accurately as possible information relevant to
the Kentucky death penalty. The Project would appreciate notification of any factual errors or
omissions in this Report so that they may be corrected in any future reprints.
II. HIGHLIGHTS OF THE REPORT
A. Overview of the Kentucky Death Penalty Assessment Team’s Work and Views
To assess fairness and accuracy in Kentucky’s death penalty system, the Kentucky Death Penalty
Assessment Team! researched the twelve issues that the ABA identified as central to the analysis
of the fairness and accuracy of a state’s capital punishment system. The Kentucky Death Penalty
Assessment Report devotes a chapter to each of the following areas: (1) overview of the
Commonwealth’s death penalty; (2) collection, preservation, and testing of DNA and other types
of evidence; (3) law enforcement identifications and interrogations; (4) crime laboratories and
medical examiner offices; (5) prosecutorial professionalism; (6) defense services; (7) the direct
appeal process; (8) state post-conviction proceedings; (9) clemency; (10) jury instructions; (11)
judicial independence; (12) treatment of racial and ethnic minorities; and (13) mental retardation
and mental illness.” Chapters begin with an introduction to provide a national perspective of the
issues addressed by each chapter, followed by a “Factual Discussion” of the relevant laws and
practices in Kentucky. The final section of each chapter, entitled “Analysis,” examines the
extent to which Kentucky is in compliance with the ABA Protocols.
While members of the Kentucky Assessment Team have varying perspectives about the death
penalty and the weight to be afforded to individual ABA Protocols contained in this Report, all
Assessment Team members agreed to use the ABA Protocols as a framework through which to
examine the death penalty in Kentucky.
It is the Assessment Team’s unanimous view that, as long as Kentucky imposes the death
penalty, it must be reserved for the worst offenders and offenses, ensure heightened due process,
and minimize risk of executing the innocent. To this end, Kentucky has made substantial strides
in several areas, including creation of a statewide public defender responsible for representing
the Commonwealth’s indigent capital defendants and death row inmates. Kentucky also has
sought to minimize risk of executing the innocent by adoption of a post-conviction DNA testing
statute, which permits a death row inmate to request testing at any time prior to execution.
Finally, Kentucky was the first state in the nation to adopt a Racial Justice Act, recognizing both
the historical unfairness in the application of the death penalty and a commitment to eliminating
racial and ethnic bias in the application of the death penalty in the Commonwealth.
The Assessment Team has concluded, however, that Kentucky fails to comply or only is in
partial compliance with many of the Protocols contained in this Report, and that many of these
shortcomings are substantial. The Team, therefore, unanimously agrees to endorse key proposals
that address these shortcomings. The next section highlights some of the most important
findings of the Team and is followed by a summary of its recommendations and observations.
' The membership of the Kentucky Death Penalty Assessment Team is included infra on page 3 of the Kentucky
Death Penalty Assessment Report.
This report is not intended to cover all aspects of a state’s capital punishment system, and, as a result, it does not
address a number of important issues, such as the treatment of death row inmates while incarcerated or method of
execution.
ili
B. Major Areas for Reform
The Kentucky Death Penalty Assessment Team has identified a number of areas in which
Kentucky’s death penalty system falls short in the effort to afford every capital defendant fair
and accurate procedures and minimize the risk of executing the innocent. While we have
identified a series of individual problems within Kentucky’s death penalty system, which
standing alone may not appear to be significant, we caution that their harms are cumulative. The
capital system has many interconnected parts; problems in one area may undermine sound
procedures in others. With this in mind, the Kentucky Death Penalty Assessment Team
unanimously agrees that the following areas are most in the need of reform:
Inadequate Protections to Guard Against Wrongful Convictions (Chapters 2, 3, 4). Kentucky
laws and procedures do not sufficiently protect the innocent, convict the guilty, and ensure the
fair and efficient enforcement of criminal law in death penalty cases.
e Evidence in criminal cases, including capital cases, is not required to be retained for as
long as the defendant remains incarcerated, despite the possibility of wrongful
conviction. Kentucky law and practice also permits destruction of evidence in a variety
of instances, including, in some cases, when the perpetrator remains at large (Chapter 2).
e¢ While the Commonwealth’s post-conviction DNA testing statute permits post-trial testing
of biological evidence prior to execution under some circumstances, the problem of lost
evidence significantly diminishes the utility of the statute. Death row inmates who are
otherwise eligible for testing under the statute have been denied a motion for relief
because evidence in their case is missing. Inmates also are required to comply with
stringent pleading requirements before any testing is granted. Courts must order testing
in only limited circumstances and can deny a death row inmate’s request for testing even
when the results may be exculpatory (Chapter 2).
e While there are over 400 law enforcement agencies in Kentucky, some of the
Commonwealth’s largest law enforcement agencies have no policies that are consistent
with the ABA Best Practices on eyewitness identifications and interrogations. In those
agencies that have adopted policies, the policies are not uniformly enforced. Full video-
or audio-recording of the entirety of custodial interrogations occurs in only a few of
Kentucky’s law enforcement agencies, even though such a policy helps ensure that
innocent parties are not held responsible for crimes they did not commit and also
significantly conserves scarce law enforcement and judicial resources (Chapter 3).
e Three of the six locations of the Kentucky State Police Forensic Laboratory (KSP
Laboratory) and one office of the statewide Medical Examiner (MEO) have voluntarily
obtained national accreditation. However, Kentucky does not require the accreditation of
its forensic laboratories, MEO, or any of the 120 county coroner offices. Other KSP
Laboratory branches or smaller law enforcement agencies conducting limited forensics
are not accredited by any national accrediting body. Kentucky also funds its medical
examiner and county coroner systems at levels far below the national average. Testing
backlogs persist at KSP Laboratory causing delays in all criminal cases. Finally, KSP
Laboratory’s continued affiliation with law enforcement requires the laboratory to
compete with other KSP divisions for a portion of the State Police's fixed budget and
causes non-law enforcement entities, like the Department of Public Advocacy and its
Innocence Project, to seek biological testing out-of-state (Chapter 4).
iv
Inconsistent and Disproportionate Capital Charging and Sentencing (Chapter 5).? With fifty-
seven Commonwealth’s Attorneys offices in Kentucky, there are conceivably fifty-seven
different approaches to the decision to seek capital punishment. In some instances, it appears
that the Commonwealth's Attorney will charge every death-eligible case as a capital case. While
the vast majority of Commonwealth’s Attorneys may seek to exercise discretion in death penalty
cases to support the fair, efficient, and effective enforcement of law, there is no mechanism in
place to guide prosecutors in their charging decisions to support the even-handed, non-
discriminatory application of the death penalty across the Commonwealth.
Deficiencies in the Capital Defender System (Chapter 6). All Kentucky public defenders
handling capital cases retain caseloads that far exceed national averages and recommended
maximum caseloads. In some cases, Kentucky public defenders provide capital representation
while carrying caseloads of over 400 non-capital cases each year. Support staff members,
including investigators and mitigation specialists, are routinely overworked and underpaid,
carrying caseloads ranging from twelve to twenty-five capital cases at any given time. A 2011
study found that Kentucky public defenders who handle death penalty cases make 31% less than
similarly-experienced attorneys in surrounding states constituting the lowest average salaries of
examined jurisdictions. Furthermore, the hourly rates and maximum caps on compensation
available for contract counsel in death penalty cases are inadequate to ensure high quality legal
representation and are far below the rates available to attorneys performing contractual work for
the Commonwealth on civil matters. Low wages and compensation caps also may deter
individuals with the necessary qualifications from undertaking the demanding responsibilities
and complex nature of a death penalty case.
Furthermore, at least ten of the seventy-eight people sentenced to death since 1976 were
represented by defense counsel who were subsequently disbarred. While Kentucky’s public
defender agencies seek to enforce internal standards governing the proper provision of counsel in
all death penalty cases assigned to their agencies, Kentucky has not adopted any statewide
standards governing the qualifications and training of attorneys appointed to handle capital cases
at trial, on appeal, and during post-conviction proceedings. With only self-enforcement of
internal agency guidelines and without certification of all lawyers who undertake capital
representation, a real risk exists that capital defendants and death row inmates will be
represented by lawyers unqualified to handle the complexities and gravity of a capital case.
Inadequacies in Post-Conviction Review (Chapters 8, 13). Kentucky rules and practices may
impair adequate development and judicial consideration of death row inmates’ claims of
constitutional error. When an execution date is set prior to the expiration of the three-year
statute of limitations imposed for filing a post-conviction petition, it has the effect of
significantly curtailing the time that a death row inmate has to prepare and file his/her petition
for post-conviction relief. Inmates not under a death sentence do not face a similar time
constraint. Kentucky also does not authorize discovery in state post-conviction proceedings and
prohibits inmates from using the Kentucky Open Records Act to obtain materials possessed by
law enforcement that may be essential for establishing a death row inmate’s constitutional
claims. The lack of discovery during post-conviction review makes it all the more likely that
> See infra page vii on Kentucky agencies’ and entities’ participation in the Assessment process.
death row inmates will be unable to develop viable claims of constitutional error in light of the
truncated time period in which they must prepare their petitions. Furthermore, Kentucky post-
conviction courts typically do not authorize any funding for mental health experts to assist
potentially mentally retarded death row inmates to accurately determine and prove their mental
capacities.
Capital J uror Confusion (Chapter 10). Kentucky capital jurors are not always given adequate
guidance while undertaking the “awesome responsibility” of deciding whether another person
will live or die. A disturbingly high percentage of Kentucky capital jurors who were interviewed
by the Capital Jury Project failed to understand the guidelines for considering aggravating and
mitigating evidence. For example, 45.9% of jurors failed to understand that they could consider
mitigating evidence at sentencing, 61.8% failed to understand that they need not find mitigation
“beyond reasonable doubt,” and 83.5% of jurors did not understand that they need not have been
unanimous on findings of mitigation. Furthermore, due to confusion on the meaning of available
alternative sentences, Kentucky jurors may opt to recommend a sentence of death when they
otherwise would not.
Imposition of a Death Sentence on People with Mental Retardation or Severe Mental
Disability (Chapter 13). While the Commonwealth prohibited the execution of people with
mental retardation in 1990, Kentucky does not have adequate protections to ensure that death
sentences are not imposed or carried out on a defendant or death row inmate with mental
retardation. Kentucky’s statutory definition of mental retardation creates a bright-line maximum
IQ of seventy, which fails to comport with the modern scientific understanding of mental
retardation. Furthermore, Kentucky courts may require that a capital defendant have been IQ-
tested prior to the age of eighteen, which often places an unattainable burden on the offender
since such individuals have rarely taken standardized assessments of intelligence or adaptive
behavior functioning before adulthood. Finally, Kentucky’s procedural rules could permit a
death row inmate who is mentally retarded to be executed when the inmate failed to effectively
raise the issue of his/her mental retardation before trial.
However, Kentucky does not prohibit execution of offenders with mental disabilities similar to
mental retardation, such as dementia or traumatic brain injury, but which manifest after the age
of eighteen. Kentucky also does not prohibit imposition of a death sentence or execution of an
individual who, at the time of his/her offense, had a severe mental illness, disorder, or disability
that significantly impaired his/her capacity to appreciate the nature, consequences or
wrongfulness of his/her conduct, to exercise rational judgment in relation to conduct, or to
conform his/her conduct to the requirements of the law.
Lack of Data. Finally, there were also many issues regarding use of the death penalty in
Kentucky that the Assessment Team attempted to evaluate, but was unable to obtain sufficient
information to do so. The Assessment Team has encountered a great deal of difficulty in
obtaining data on all death-eligible cases in the Commonwealth, including those in which the
death penalty was sought, but not imposed, and those in which the death penalty could have been
sought, but was not. The lack of data collection and reporting on the overall use of capital
punishment renders it impossible for the Commonwealth to guarantee that such a system is
operating fairly, effectively, and efficiently. Specifically,
vi
e The Kentucky Supreme Court cannot engage in meaningful proportionality review to
determine if a death sentence is proportionate in comparison to similar cases and
offenders. It does not appear that the relevant data on capital charging practices has been
maintained to permit the Court to undertake a searching proportionality review. <A
thorough review requires the Court to consider cases in which a death sentence could
have been imposed, but was not, or cases in which a death sentence could have been
sought, but was not. The universe of cases currently examined by the Court during
proportionality review is too limited for it to ensure that Kentucky’s death penalty is
administered in a fully rational, non-arbitrary manner (Chapter 7).
e Kentucky cannot determine what effect, if any, its Racial Justice Act (KRJA) has had on
ameliorating racial discrimination in capital cases. While the Assessment Team applauds
the work that has been conducted by various Commonwealth entities investigating racial
discrimination within the criminal justice system, the KRJA appears to have a number of
restrictions limiting its effectiveness at identifying and remedying racial discrimination in
the administration of the death penalty. Without a statewide entity that collects data on
all death-eligible cases in the Commonwealth, Kentucky cannot determine the extent of
racial or geographic bias in its capital system (Chapter 12).
Finally, in order to complete the Kentucky Assessment Report, the Assessment Team sought
information from various Kentucky state agencies and entities. Information obtained from the
Office of the Governor, the Kentucky Court of Justice, Kentucky law enforcement, the state
crime laboratory and medical examiner's offices, public defenders, and many others greatly aided
us in the preparation of the Report. However, we sought, but were unable to obtain, information
from Commonwealth prosecutors regarding their role in the administration of the death penalty.
This lack of involvement is troubling given that prosecutors are the cornerstone of the death
penalty system. Prosecutors possess broad discretion to decide what crime to charge, whether to
seek the death penalty, and whether to negotiate and accept a plea agreement. The Assessment
Team was able to obtain little information on Kentucky prosecutors’ approaches to the decision
to seek the death penalty, how each office ensures compliance with discovery obligations to
protect against conviction of the innocent, and whether and how each office disciplines
prosecutors who engage in misconduct—particularly in serious cases where the defendant could
be executed. Commonwealth’s Attorney offices also may face many of the same resource
constraints experienced by other statewide entities. However, we were unable to obtain from
prosecutors information on their budgets, training, or compensation.
C. Kentucky Death Penalty Assessment Team Recommendations
As noted above, each chapter of this Report includes several ABA Recommendations or
“Protocols,” which the Kentucky Death Penalty Assessment Team used as a framework to
analyze Kentucky’s death penalty laws and procedures. While Assessment Team members
expressed divergent views about the weight placed on the various ABA Recommendations, the
entire Kentucky Death Penalty Assessment Team endorses several measures to bring the
Commonwealth in compliance with the ABA Recommendations, as well as state-specific
proposals, to ameliorate the problems identified throughout this Report.
vii
Prevention of Wrongful Convictions (Chapters 2, 3, 4, 5).
Kentucky must guarantee proper preservation of all biological evidence in capital cases
as long as the defendant remains incarcerated and must designate an appropriate
governmental entity responsible for the proper preservation of all evidence in a criminal
case.
Kentucky courts should order DNA testing of biological evidence if the results of testing
or retesting of the evidence could create a reasonable probability that the person is
innocent of the offense, did not have the culpability necessary to subject the person to the
death penalty, or did not engage in aggravating conduct. A stay of execution should be
ordered during the pendency of a petition for post-conviction DNA testing.
Kentucky should adopt legislation that requires accreditation of any forensic science
laboratory and certification for all forensic specialists operating in the Commonwealth.
Furthermore, the Commonwealth’s crime laboratory system should be housed as a
separate department under the Justice and Public Safety Cabinet, operating wholly
independent of the Kentucky State Police. By creating a forensic laboratory system
independent of law enforcement, the Commonwealth can reduce undue external or
internal pressure, which could otherwise affect the integrity, validity, and reliability of
forensic analysis.
Kentucky should adopt the ABA’s Practices for Promoting the Accuracy of Eyewitness
Identification Procedures as statewide policy. Kentucky law enforcement agencies
should also incorporate advances in social science into their guidelines, particularly given
the lack of uniformity among the Commonwealth’s law enforcement agencies. Kentucky
also should require recording of the entirety of custodial interviews, particularly in
homicide investigations, and should include an appropriate remedy for law enforcement’s
failure to record. Full recordings of custodial interviews also would foreclose the need to
litigate in many cases whether a confession had been legally obtained.
The Kentucky Law Enforcement Council should require law enforcement training school
curricula to include specific training on the proper collection and preservation of
biological evidence. The Commonwealth should require that all law enforcement
agencies involved in the investigation of potential capital cases be accredited in order to
ensure that each agency has adopted and enforces written policies governing the
preservation of biological evidence. These policies should ensure that evidence is
preserved for as long as the person remains incarcerated.
The Kentucky Rules of Court should be amended to provide a jury instruction, whenever
identity is a central issue at trial, on the factors to be considered in gauging eyewitness
identification.
Kentucky prosecutors should be required to provide open file discovery at trial and
during post-conviction proceedings.
Kentucky should adopt a procedure whereby a criminal trial court shall conduct, at a
reasonable time prior to a capital trial, a conference with the parties to ensure that they
are fully aware of their respective disclosure obligations under applicable discovery rules,
statutes, ethical standards, and the federal and state constitutions and to offer the court’s
assistance in resolving disputes over disclosure obligations.
viii
Improvement of Defense Services (Chapter 6).
Kentucky should adopt statewide standards governing the qualifications and training
required of defense counsel and ancillary services in capital trial, appeal, and post-
conviction proceedings in conformance with the ABA Guidelines on the Appointment and
Performance of Defense Counsel in Capital Cases (ABA Guidelines). This requires that
the caseload of any public defender who undertakes capital representation must be
limited and sufficient funding made available to support the use of needed investigative,
expert, and other ancillary services during all stages of the proceedings. Kentucky also
should designate the Department of Public Advocacy as the appointing authority for
representation in death penalty cases and ensure that it is equipped with the resources to
certify the qualifications and monitor the performance of all attorneys who provide
representation in capital cases.
Kentucky should provide additional funding to ensure defense counsel who undertake
representation of an indigent capital defendant or death row inmate are compensated at a
rate commensurate with the salary scale of prosecutors’ offices in the jurisdiction, as set
forth in the ABA Guidelines. Kentucky also should ensure sufficient funding to the
public defender agencies so that the public defender may remove the compensation cap
placed on payments to counsel who undertake representation of an indigent capital
defendant on a contractual basis. Hourly rates available for contract counsel should be
representative of the prevailing rates for private counsel sufficient to attract individuals
with the necessary qualifications to undertake the demanding responsibilities of a death
penalty case.
Kentucky law should guarantee the assistance of counsel to a death row inmate during the
claim development stage of post-conviction and clemency proceedings.
Ensuring Proportionality in Capital Charging and Sentencing (Chapters 5, 7).
Kentucky should adopt guidelines governing the exercise of prosecutorial discretion in
death penalty cases. The Attorney General should promulgate these guidelines, in
consultation with experts on capital punishment—including prosecutors, defense
attorneys, and judges—in order to ensure that each decision to seek the death penalty
occurs within a framework of consistent and even-handed application of Kentucky’s
capital sentencing laws. Each Commonwealth’s Attorney office must adopt policies for
implementation of the guidelines, subject to approval by the Attorney General. If,
however, an office fails to promulgate and maintain such a policy, the Attorney General
shall set the policy for the office.
The Kentucky Supreme Court should employ a more searching sentencing review in
capital cases. This review should consider not only other death penalty cases but also
cases in which the death penalty was sought but not imposed or could have been sought
but was not.
Kentucky should establish a statewide clearinghouse to collect data on all death-eligible
cases, including data on the race of defendants and victims, on the circumstances of the
crime, and on all aggravating and mitigating circumstances. These data should be made
available to the Kentucky Supreme Court for use in conducting meaningful
proportionality review and to prosecutors for use in making charging decisions and
setting charging guidelines. Kentucky must designate an entity responsible for the
ix
collection of the data, such as the Administrative Office of the Courts or the Criminal
Justice Council.
Error Correction During Post-Conviction Review (Chapters 8, 13). Kentucky should reform its
laws, procedures, and practices to permit the adequate development and judicial consideration of
claims of constitutional error.
e Kentucky should adopt a rule or law requiring trial courts to hold an evidentiary hearing
with respect to all claims in capital post-conviction proceedings, absent clear evidence
that the claim is frivolous or not supported by existing law or that the record undisputedly
rebuts the claim.
e Kentucky should permit adequate time for counsel to fully research and prepare all
meritorious post-conviction claims at least equivalent to that afforded to inmates not
awaiting execution.
e Kentucky should amend its statutes and court rules to permit inmates to obtain
meaningful discovery to better develop the factual bases of their claims prior to filing a
post-conviction motion or petition. The Commonwealth must amend its Open Records
Act to allow these petitioners to use the public records laws to obtain materials in support
of their post-conviction claims. Kentucky trial courts should authorize funding for
investigative, mitigation, and expert services to assist in the claim development stage of a
death row inmate’s post-conviction petition.
e Kentucky should provide a mechanism for a death row inmate to file a second or
successive petition for post-conviction relief permitting the court to review the inmate’s
claim of mental retardation, or other issue of constitutional magnitude, unless the inmate
has knowingly and intelligently waived the constitutional claim.
e Kentucky’s Rules of Criminal Procedure should be amended to clarify that any
constitutional error found harmless must be found harmless beyond a reasonable doubt,
in conformance with Talbott v. Commonwealth.
Gubernatorial Clemency Powers (Chapter 9). Given that clemency is the final safeguard
available to evaluate claims that may not have been presented to or decided by the courts, as well
as to evaluate the fairness and judiciousness of a death sentence, death row inmates petitioning
for clemency should be guaranteed counsel. Moreover, the Commonwealth should adopt
specific procedures that should be followed for application and consideration of a death row
inmate’s petition for clemency. No impediment, such as denial of access to prison officials,
should be erected by the Commonwealth to thwart inmates’ ability to develop and present a
clemency petition. Furthermore, Kentucky Governors should exercise their ability to empower
the Parole Board to issue a recommendation in capital clemency cases, given the expertise of the
Board, and assuming it will use procedures at least as transparent as those available in non-
capital cases.
Improved J uror Instruction and Comprehension (Chapter 10). Given the documented evidence
of confusion of Kentucky jurors regarding their roles and responsibilities in capital cases
e Kentucky must revise the instructions typically given in capital cases. Kentucky should
commission attorneys, judges, linguists, social scientists, psychologists, and jurors to
revise the instructions as necessary to ensure that jurors understand applicable law and
monitor the extent to which jurors understand revised instructions to permit further
revision as necessary;
Kentucky trial courts also should permit, upon the defendant’s request during the
sentencing phase, parole officials or other knowledgeable witnesses to testify about
parole practices in the Commonwealth to clarify jurors’ understanding of alternative
sentences; and
Kentucky capital jurors should be specifically instructed that a mental disorder or
disability is a mitigating, not an aggravating factor, that evidence of mental disability
should not be relied upon to conclude that the defendant represents a future danger to
society, and that jurors be instructed to distinguish between the affirmative defense of
insanity and a defendant’s subsequent reliance on similar evidence to demonstrate a
mental disorder or disability as a mitigating factor.
Racial and Ethnic Minorities (Chapter 12).
Shortcomings of the Kentucky Racial Justice Act (KRJA) must be fixed so that the Act
serves as an effective remedy for racial discrimination in death penalty cases. This
includes
0 Retroactive application so that the provisions of the KRJA are available to inmates
who were sentenced to death prior to the Act’s adoption in 1998;
0 Availability of the KRJA for claims of racial discrimination affecting the decision to
impose the death penalty;
0 Application of the KRJA on appeal and during post-conviction proceedings;
Oo Elimination of the high burden of proof imposed by the KRJA which currently
requires petitioners to prove racial discrimination by “clear and convincing
evidence”; and
0 Elimination of the requirement that a KRJA petitioner prove racial discrimination in
his/her individual case as such evidence will almost never be overt; instead, relief
under the Act also should be available if the capital defendant or death row inmate is
able to demonstrate that racial considerations played a significant part in the decision
to seek or impose a death sentence in the county, judicial district, or in the
Commonwealth.
Kentucky should commission an evaluation of the effectiveness of the KRJA at
remedying racial discrimination in capital charging and sentencing.
Treatment of Persons with Mental Retardation and Severe Mental Illness (Chapter 13).
The Commonwealth should adopt legislation defining mental retardation in conformance
with the American Association on Intellectual and Developmental Disabilities’ definition,
which should (1) reject a bright-line IQ maximum for a determination of mental
retardation; (2) calculate IQ scores by incorporating the five-point margin of error and the
Flynn effect; and (3) permit presentation of other evidence of adaptive behavior deficits
that occurred before the defendant reached age eighteen, particularly where no IQ testing
had been conducted during the defendant’s childhood, in order for the defendant to prove
s/he has mental retardation.
Kentucky should forbid imposition of a death sentence on offenders with severe mental
illness. The prohibition is applicable to offenders who, at the time of the offense, had
significantly subaverage limitations in both their general intellectual functioning and
xi
adaptive behavior, as expressed in conceptual, social, and practical adaptive skills,
resulting from mental retardation, dementia, or a traumatic brain injury. Kentucky also
should bar the death penalty for offenders who, at the time of their offense, had a severe
mental disorder or disability that significantly impaired their capacity to appreciate the
nature, consequences, or wrongfulness of their conduct, exercise rational judgment in
relation to conduct, or conform their conduct to the requirements of the law. Kentucky
also should preclude imposition of the death penalty in cases where a defendant is found
guilty but mentally ill.
e Kentucky should adopt a rule or law providing that, if a court finds that a prisoner under
sentence of death who wishes to forego or terminate post-conviction proceedings has a
mental disorder or disability that significantly impairs his/her capacity to make a rational
decision, the court shall permit a “next friend” acting on the prisoner’s behalf to initiate
or pursue available remedies to set aside the death sentence.
Kentucky legislators previously have introduced legislation that would exempt severely mentally
ill individuals from the death penalty based upon the Recommendations contained in this Report,
as well as permit a tolling of the statute of limitations in post-conviction cases due to a death row
inmate’s mental incompetence. The Kentucky Assessment Team recommends that the
Commonwealth adopt such legislation.
D. Final Thoughts and Recommendations
The Kentucky Assessment Team examined all death sentences imposed in the Commonwealth
since 1976. As of November 2011, seventy-eight people have been sentenced to death. Fifty-
two of these individuals have had a death sentence overturned on appeal by Kentucky or federal
courts, or been granted clemency. This is an error rate of approximately sixty percent.
Furthermore, capital prosecutions occur in far more cases than result in death sentences. This
places a significant judicial and financial burden on Commonwealth courts, prosecutors,
defenders, and the criminal justice system at large, to treat many cases as death penalty cases,
despite the fact that cases often result in acquittal, conviction on a lesser charge, or a last minute
agreement to a sentence less than death.
This calls into serious question whether the Commonwealth’s resources are well-spent on the
current error-prone nature of the death penalty in Kentucky. Budget shortfalls have undoubtedly
compounded the problem, resulting in furloughs and budget cuts to the courts, prosecutors!
offices, and defenders’ offices across the Commonwealth in the last few years. This will
inevitably lead to greater risk of error. Finally, actors in the criminal justice system must expend
an extraordinary amount of time prosecuting, defending, and adjudicating capital cases as
compared to other criminal and civil cases. This contributes to burdensome caseloads and
clogged dockets, affecting the quality of justice administered to all Kentuckians.
Conclusion
Kentucky undoubtedly has made progress in seeking to achieve fairness and accuracy in its
administration of the death penalty, by, for example, establishing a statewide capital defender
xii
and adopting of a Racial Justice Act. However, serious problem areas persist in the operation of
the death penalty in Kentucky.
The Kentucky Assessment Team is concerned about the expenditure of Commonwealth
resources to administer what the Assessment Team has found to be a system with insufficient
safeguards to ensure fairness and prevent execution of the innocent. The gravity and breadth of
the issues summarized above and described in detail throughout this Report compel the
Assessment Team to recommend a temporary suspension of executions until the issues identified
in this Report have been addressed and rectified. Through this temporary suspension, all
branches of the Commonwealth’s government will be better able to examine thoughtfully and
thoroughly these concerns, implement the necessary reforms, and ensure the fairness and
accuracy of its death penalty system.
xiii
TI]. SUMMARY OF THE REPORT
Chapter One: An Overview of Kentucky’s Death Penalty System
In this chapter, we examined the demographics of Kentucky’s death row, the statutory evolution
of Kentucky’s death penalty scheme, and the progression of an ordinary death penalty case
through Kentucky’s death penalty system from arrest to execution.
Chapter Two: Collection, Preservation, and Testing of DNA and Other Types of Evidence
DNA testing has proved to be a useful law enforcement tool to establish guilt as well as
innocence. The availability and utility of DNA testing, however, depends on the state’s laws and
on its law enforcement agencies’ policies and procedures concerning the collection, preservation,
and testing of biological evidence. In this chapter, we examined Kentucky’s laws, procedures,
and practices concerning not only DNA testing, but also the collection and preservation of all
forms of biological evidence, and we assessed whether the Commonwealth complies with the
ABA’s policies on the collection, preservation, and testing of DNA and other types of evidence.
A summary of Kentucky’s overall compliance with the ABA’s policies on the collection,
preservation, and testing of DNA and other types of evidence is illustrated in the following
chart.*
Collection, Preservation, and Testing of DNA and Other Types of Evidence
Compliance In Partially in, Notin Insufficient | Not Applicable
Compliance | Compliance’ | Compliance | Information
to Determine
Statewide
Recommendation Compliance®
Recommendation #1: The State should
preserve all biological evidence for as long x
as the defendant remains incarcerated.
Recommendation #2: Defendants and
inmates should have access to biological
evidence, upon request, and be able to seek x
appropriate relief notwithstanding any other
provision of the law.
Recommendation #3: Law enforcement
agencies should establish and enforce x
written procedures and policies governing
the preservation of biological evidence.
4 Where necessary, the Recommendations contained in this chart and all subsequent charts were condensed to
accommodate spatial concerns. The condensed recommendations are not substantively different from the
recommendations contained in the “Analysis” section of each chapter.
Given that a majority of the ABA’s Recommendations are composed of several parts, we used the term
“partially in compliance” to refer to instances in which Kentucky meets a portion, but not all, of the
Recommendation. This definition applies to all subsequent charts contained in this Executive Summary.
° In this publication, the Project and the Assessment Team have attempted to note as accurately as possible
information relevant to the Kentucky death penalty. The Project would welcome notification of any omissions or
factual errors in this Report so that they may be corrected in any future reprints.
xiv
Collection, Preservation, and Testing of DNA and Other Types of Evidence (C ont’ d)
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance’ | Compliance | Information | Applicable
to Determine
Statewide
Compliance*
Recommendation
Recommendation #4: Provide adequate
funding to ensure the proper preservation xX
and testing of biological evidence.
The Kentucky Assessment Team on the Death Penalty commends the Commonwealth for
adopting legislation which permits capital defendants and death row inmates to obtain post-
conviction DNA testing on available biological evidence. Such testing should be granted when
the inmate is able to show that a reasonable probability exists that s/he would have received a
more favorable sentence should DNA testing yield favorable results.
In order for Kentucky to protect against wrongful conviction or execution of an inmate who
should not have been subject to the death penalty, it is imperative that the Commonwealth
properly preserve all biological evidence in capital cases. Kentucky, however, does not preserve
evidence for as long as the defendant remains incarcerated, and there have been a number of
instances where evidence sought for retesting during post-conviction proceedings has been lost
or unavailable. In one case, a death row inmate was denied testing of two items admitted as
evidence during the original trial because the items had gone missing and could not be found
after a “substantial search” by the Commonwealth.
In fact, under some circumstances, Kentucky permits the destruction of biological evidence in
criminal cases both before and after a death row inmate is convicted, irrespective of the value
that such evidence could possess to solve cold cases or determine, with certainty, the guilt or
innocence of a death row inmate awaiting execution. The possibility that evidence will be lost or
misplaced may partly be attributed to the lack of uniform requirements on proper preservation,
resulting in evidence storage in law enforcement facilities, courthouses, and even safe deposit
boxes. Kentucky also appears to insufficiently fund evidence preservation and analysis. In some
instances, the Commonwealth has requested the destruction of evidence because it is unable to
store the evidence. The Kentucky State Police Forensic Laboratory also has extensive backlogs
of DNA evidence waiting to be tested and analyzed.
Chapter Three: Law Enforcement Identifications and Interrogations
Eyewitness misidentifications and false confessions are two of the leading causes of wrongful
convictions. Eyewitness misidentifications and false confessions can mislead law enforcement
Given that a majority of the ABA’s Recommendations are composed of several parts, we used the term
“partially in compliance” to refer to instances in which Kentucky meets a portion, but not all, of the
Recommendation. This definition applies to all subsequent charts contained in this Executive Summary.
In this publication, the Project and the Assessment Team have attempted to note as accurately as possible
information relevant to the Kentucky death penalty. The Project would welcome notification of any omissions or
factual errors in this Report so that they may be corrected in any future reprints.
XV
into focusing their efforts on one person, too often resulting in an erroneous conviction while the
actual perpetrator remains unaccountable. In order to reduce the number of convictions of
innocent persons and to ensure the integrity of the criminal justice process, the rate of eyewitness
misidentifications and of false confessions must be reduced. In this chapter, we reviewed
Kentucky’s laws, procedures, and practices on law enforcement identifications and
interrogations, and we assessed whether those laws, procedures, and practices comply with the
ABA’s policies on law enforcement identifications and interrogations.
A summary of Kentucky’s overall compliance with the ABA’s policies on law enforcement
identifications and interrogations is illustrated in the chart below.
Law Enforcement Identifications and Interrogations
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance | Compliance | Information to | Applicable
Determine
Statewide
Recommendation Compliance
Recommendation #1: Law enforcement
agencies should adopt specific guidelines
for conducting lineups and photospreads
in a manner that maximizes their likely
accuracy. Every set of guidelines should
address at least the subjects, and should x
incorporate at least the social scientific
teachings and best practices, set forth in
the American Bar Association's Best
Practices for Promoting the Accuracy of
Eyewitness Identification Procedures.
Recommendation #2: Law enforcement
officers and prosecutors should receive
periodic training on how to implement
the guidelines for conducting lineups and x
photospreads, as well as training on non-
suggestive techniques for interviewing
witnesses.
Recommendation #3: Law enforcement
agencies and prosecutors’ offices should
periodically update the guidelines for
conducting lineups and photospreads to Oe
incorporate advances in social scientific
research and the continuing lessons of
practical experience.
Recommendation #4: Video-record the
entirety of custodial interrogations of
crime suspects at police precincts,
courthouses, detention centers, or other x
places where suspects are held for
questioning, or, where video-recording is
impractical, audio-record the entirety of
such custodial interrogations.
Recommendation #5: Ensure adequate
funding for the proper development,
implementation, and updating of policies xX
and procedures relating to identifications
and interrogations.
xvi
Law Enforcement Identifications and Interrogations (C ont’ d)
Compliance In Partially in Notin Insufficient Not
= Compliance | Compliance | Compliance | Information | Applicable
* to Determine
Recommendation Stoeelde
Compliance
Recommendation #6: Courts should
have the discretion to allow a properly
qualified expert to testify both pre-trial xX
and at trial on the factors affecting
eyewitness accuracy.
Recommendation #7: Whenever there
has been an identification of the
defendant prior to trial, and identity is a
central issue in a case tried before a jury, X
courts should use a specific instruction,
tailored to the needs of the individual
case, explaining the factors to be
considered in gauging lineup accuracy.
Recommendation #8: Every law
enforcement agency should provide
training programs and disciplinary X
procedures to ensure that investigative
personnel are prepared and accountable
for their performance, respectively.
Recommendation #9: Ensure that there
is adequate opportunity for citizens and X
investigative personnel to report
misconduct in investigations.
The Commonwealth of Kentucky has undertaken certain measures that likely reduce the risk of
inaccurate eyewitness identifications and false confessions. For example, law enforcement
officers in Kentucky are required to complete a minimum of 640 hours of basic training and to
complete forty hours of annual in-service training, which includes instruction on sound
identification and interrogation techniques. In addition, at least six law enforcement agencies in
Kentucky regularly record custodial interrogations. Furthermore, Kentucky trial courts have the
discretion to admit expert testimony regarding the accuracy of eyewitness identifications.
Despite these measures, Kentucky does not require law enforcement agencies to adopt specific
guidelines on identifications and interrogations consistent with the ABA Best Practices. There
are no statewide standards governing how lineups and photospreads should be conducted.
Absent statewide policies or best practices, in some cases, there are also no internal law
enforcement agency guidelines as to how lineups and photospreads should be conducted,
including in some of the Commonwealth’s largest law enforcement agencies.
Furthermore, full video- or audio-recording of custodial interrogations occurs in only a few law
enforcement agencies within the Commonwealth, despite the fact that such a policy both helps
ensure that innocent parties are not held responsible for crimes they did not commit and
significantly conserves scarce law enforcement and judicial resources. Even when law
enforcement agencies have promulgated guidelines on the issues addressed by the ABA Best
Practices, the stated policy does not fully encompass all elements of the best practice meant to
xvii
protect against wrongful conviction. For example, in agencies where recording of custodial
interviews does take place, it commences only when a suspect makes a confession rather than for
the entirety of the custodial interview. Kentucky also prohibits use of a jury instruction to
explain the factors to be considered in gauging lineup accuracy.
There are over 400 law enforcement agencies responsible for promulgating and enforcing
policies to bring Kentucky into compliance with the ABA Recommendations, many of which are
in small, rural areas. However, when the Team focused on the policies and practices of the
largest law enforcement agencies in the Commonwealth that are most likely to investigate
capital-eligible offenses—the Kentucky State Police, the Lexington Division of Police, and the
Louisville Metro Police Department—it found that these agencies have no policies at all or, in
those that have adopted policies, the policies are not uniformly enforced consistent with the ABA
Best Practices.
Chapter Four: Crime Laboratories and Medical Examiner Offices
With courts’ increased reliance on forensic evidence and the questionable validity and reliability
of recent tests performed at a number of unaccredited and accredited crime laboratories across
the nation, the importance of crime laboratory and medical examiner office accreditation,
forensic and medical examiner certification, and adequate funding of these laboratories and
offices cannot be overstated. In this chapter, we examined these issues as they pertain to
Kentucky and assessed whether Kentucky’s laws, procedures, and practices comply with the
ABA’s policies on crime laboratories and medical examiner offices.
A summary of Kentucky’s overall compliance with the ABA’s policies on crime laboratories and
medical examiner offices is illustrated in the following chart.
Crime Laboratories and Medical Examiner Offices
, In Partially in Notin Insufficient Not
Compliance Compliance | Compliance } Compliance | Information | Applicable
to Determine
Recommendation Statewide
Compliance
Recommendation #1: Crime laboratories
and medical examiner offices should be
accredited, examiners should be certified, and x
procedures should be standardized and
published to ensure the validity, reliability,
and timely analysis of forensic evidence.
Recommendation #2: Crime laboratories
and medical examiner offices should be x
adequately funded.
The Commonwealth of Kentucky does not require the accreditation of its forensic laboratories.
However, since 2005, three of the six locations of the Kentucky State Police Forensic Laboratory
(KSP Laboratory) have voluntarily obtained accreditation by the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) under its Legacy
xviil
Accreditation Program. ASCLD/LAB now only grants new accreditation under its more
rigorous International Accreditation Program and KSP Laboratory has submitted an application
for accreditation under the International Program. While KSP Laboratory seeks to limit law
enforcement involvement with forensic analysis, continued affiliation of the Commonwealth’s
only forensic laboratory with law enforcement causes KSP Laboratory to compete with other
Kentucky State Police divisions for a portion of the State Police’s fixed budget and causes non-
law enforcement entities, like the Department of Public Advocacy and its Innocence Project, to
seek biological testing out-of-state.
Like crime laboratories, Kentucky does not require accreditation of medical examiner offices or
coroner offices. While one of the four offices of the statewide Medical Examiner Office (MEO)
has obtained accreditation by the National Association Medical Examiners, none of the
Commonwealth’s 120 coroner offices has obtained voluntary accreditation.
Kentucky law requires certification of some, but not all, forensic analysts involved in the
investigation of a capital case. However, according to KSP Laboratory, personnel at each of the
agency’s six crime laboratories possess a degree and specialized training relevant to his/her
laboratory specialty. Certification is required of medical examiners; however, Kentucky does
not impose any certification requirements on elected coroners or forensic laboratory analysts and
technicians. Medical licensing is not required of medical examiners or coroners, and only four
of the 120 elected coroners and four of the 313 deputy coroners are licensed physicians.
Testing backlogs in KSP Laboratory persist, despite the infusion of federal grant money to
diffuse the problem year after year. Resource limitations are also evidenced by the MEO’s
inability to apply for accreditation of all four of its offices, as well as the MEO’s inability to
make needed upgrades to its facilities. Kentucky also funds its medical examiner and coroner
systems below national averages.
Chapter Five: Prosecutorial Professionalism
The prosecutor plays a critical role in the criminal justice system. The character, quality, and
efficiency of the whole system is shaped in great measure by the manner in which the prosecutor
exercises his/her broad discretionary powers, especially in capital cases, where prosecutors have
enormous discretion in deciding whether or not to seek the death penalty.
In this chapter, we examined Kentucky’s laws, procedures, and practices relevant to
prosecutorial professionalism and assessed whether they comply with the ABA’s policies on
prosecutorial professionalism.
A summary of Kentucky’s overall compliance with the ABA’s policies on prosecutorial
professionalism is illustrated in the following chart.
xix
Prosecutorial Professionalism
7" In Partially in Notin Insufficient Not
Compliance: [ll Gompliance:| ‘Compliance | Compliance | Information, | Applicable
to Determine
F Statewide
Recommendation Compliance
Recommendation #1: Each prosecutor’s office
should have written polices governing the exercise X
of prosecutorial discretion to ensure the fair,
efficient, and effective enforcement of criminal law.
Recommendation #2: Each prosecutor’s office
should establish procedures and policies for
evaluating cases that rely on eyewitness X
identification, confessions, or the testimony of
jailhouse snitches, informants, and other witness
who receive a benefit.
Recommendation #3: Prosecutors should fully and
timely comply with all legal, professional, and
ethical obligations to disclose to the defense
information, documents, and tangible objects and xX
should permit reasonable inspection, copying,
testing, and photographing of such disclosed
documents and tangible objects.
Recommendation #4: Each jurisdiction should
establish policies and procedures to ensure that
prosecutors and others under the control or
direction of prosecutors who engage in misconduct
of any kind are appropriately disciplined, that any xX
such misconduct is disclosed to the criminal
defendant in whose case it occurred, and that the
prejudicial impact of any such misconduct is
remedied.
Recommendation #5: Prosecutors should ensure
that law enforcement agencies, laboratories, and
other experts under their direction or control are xX
aware of and comply with their obligation to inform
prosecutors about potentially exculpatory or
mitigating evidence.
Recommendation #6: The jurisdiction should
provide funds for the effective training, professional
development, and continuing education of all x
members of the prosecution team, including
training relevant to capital prosecutions.
The Kentucky Assessment Team was unable to determine whether the Commonwealth complies
with several of the Recommendations contained in this chapter. The Kentucky Assessment
Team submitted a survey to the Kentucky Prosecutors Advisory Council (Council) requesting
that the survey be distributed to Kentucky’s fifty-seven elected Commonwealth’s Attorneys.
The survey requested general data regarding the death penalty in each prosecutor’s jurisdiction,
as well information on training and qualification requirements of prosecutors who handle capital
cases, funding and budget limitations, and capital charging and discovery practices. The Council
declined to provide information, stating that the Council had voted “1. to address the ABA study
as the representative body of the Commonwealth’s prosecutors; 2. not to circulate the study to
the Commonwealth’s prosecutors; and 3. not to provide responses to the survey questions.”
XX
After receiving this response, the Kentucky Assessment addressed all further inquiries to the
Council and subsequent efforts to obtain information from the Council were unsuccessful.
Kentucky imposes no requirement on Commonwealth prosecutors to maintain written policies
governing the exercise of prosecutorial discretion in capital cases, nor must prosecutors maintain
policies for evaluating cases relying upon eyewitness identification, confessions, or jailhouse
snitch testimony—evidence that constitutes some of the leading causes of wrongful conviction.
Death sentences imposed in cases in which the prosecution has significantly relied upon this sort
of evidence underscores the need for prosecutors to adopt policies or procedures for evaluating
the reliability of such evidence.
While the vast majority of prosecutors are ethical, law-abiding individuals who seek justice, our
research revealed inefficient and disparate charging practices among some Commonwealth’s
Attorneys, as well as instances of reversible error due to prosecutorial misconduct or error in
death penalty cases. In addition, the large number of instances in which the death penalty is
sought as compared to the number of instances in which a death sentence is actually imposed
calls into question as to whether current charging practices ensure the fair, efficient, and effective
enforcement of criminal law. This places a significant burden on Commonwealth courts,
prosecutors, and defenders to treat as capital many cases that will never result in a death
sentence, taxing the Commonwealth’s limited judicial and financial resources. In 2007, for
example, Kentucky’s public defender agencies reportedly undertook representation in ninety-
seven death penalty cases. However, in the over thirty years since Kentucky reinstated the death
penalty, Kentucky courts have sentenced to death only seventy-eight defendants, and only three
executions have taken place in the Commonwealth. There is also geographic disparity with
respect to capital charging practices and conviction rates in Kentucky. Since 2003, fifty-three
percent of Fayette County murder cases have gone to trial compared to twenty-five percent in
Jefferson County.
Kentucky has erected a framework that requires prosecutors to fully and timely disclose to the
defense all information, documents, and tangible objects before and during a capital trial.
However, some Kentucky prosecutors still fail to comply with discovery requirements.
Moreover, the lack of discovery in post-conviction proceedings impedes the ability of death row
inmates’ to present viable claims of innocence as such individuals may be unable to learn of
possible exculpatory information that was not disclosed at trial by the prosecution—even if such
information was not disclosed inadvertently.
Finally, the high percentage of reversals and citations of prosecutorial misconduct or error in
death penalty cases acutely demonstrates the need for appropriate discipline to deter and prevent
reoccurrence of such conduct, particularly when a life is at stake. Of the seventy-eight persons
sentenced to death in the Commonwealth since the reinstatement of the death penalty, at least
fifty defendants’ death sentences have been overturned by Kentucky state or federal courts. Of
these fifty reversals, fifteen have been based, in whole or in part, on prosecutorial misconduct or
error. The instance of reversible error reinforces the need for effective training and professional
development of death penalty prosecutors. However, it appears that Kentucky’s recent and
ongoing fiscal crisis will adversely affect the availability of funds for this purpose.
xxi
Chapter Six: Defense Services
Effective capital case representation requires substantial specialized training and experience in
the complex laws and procedures that govern a capital case, full and fair compensation to
lawyers who undertake capital cases, and sufficient resources for investigators and experts.
States must address counsel representation issues in a way that will ensure that all capital
defendants receive effective representation at all stages of their cases as an integral part of a fair
justice system. In this chapter, we examined Kentucky’s laws, procedures, and practices relevant
to defense services and assessed whether they comply with the ABA’s policies on defense
services.
A summary of Kentucky’s overall compliance with the ABA’s policies on defense services is
illustrated in the following chart.
Defense Services
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance | Compliance | Information | Applicable
to Determine
= Statewide
Recommendation Compliance
Recommendation #1: Guideline 4.1 of the ABA
Guidelines on the Appointment and Performance
of Defense Counsel in Death Penalty Cases (ABA xX
Guidelines)—The Defense Team and Supporting
Services
Recommendation #2: Guideline 5.1 of the ABA
Guidelines—Qualifications of Defense Counsel
Recommendation #3: Guideline 3.1 of the ABA
Guidelines—Designation of a Responsible
Agency
Recommendation #4: Guideline 9.1 of the ABA
Guidelines—Funding and Compensation
Recommendation #5: Guideline 8.1 of the ABA
Guidelines—Training
|r) Ps | s
Kentucky is one of only eleven states that provide representation to capital defendants through a
statewide public defender system. Specialized capital units within the Commonwealth’s
statewide public defender agencies—the Department of Public Advocacy (DPA) and the
Louisville Metro Public Defender’s Office (Metro Defender)—coupled with these agencies’
monitoring of the qualifications and performance of capital counsel under their supervision,
significantly improves the quality of representation available to Kentucky’s indigents in death
penalty cases. The Commonwealth’s public defender agencies seek to voluntarily comply with
several components of the ABA Guidelines on the Appointment and Performance of Defense
Counsel in Death Penalty Cases (ABA Guidelines), for example:
e DPA and the Metro Defender appoint two attorneys to each indigent capital defendant
during pre-trial proceedings and continue to provide representation to death row inmates
xxii
at trial, direct appeal, state post-conviction and federal habeas proceedings, clemency,
and through execution.
e Counsel for an indigent capital defendant may seek expert, investigative, and other
ancillary professional services through ex parte proceedings and may hire experts and
investigators who are independent of the Commonwealth.
e Approximate parity exists between death penalty prosecutors and public defenders in
Jefferson County. Likewise, approximate parity exists between the Attorney General and
the Public Advocate.
Although the provision of counsel for indigent capital defendants and death row inmates in the
Commonwealth is to be commended, Kentucky’s system nonetheless falls short of complying
with the ABA Guidelines for a number of reasons:
e While Kentucky public defender agencies seek to comply with the ABA Guidelines, the
Commonwealth has not adopted any standards governing the qualifications, training, or
compensation required of counsel in a capital trial, on appeal, or during post-conviction
proceedings, nor does it guarantee that two attorneys be assigned to the defense of a death
penalty case. Public defender agencies self-enforce any internal guidelines on capital
representation, which does not guarantee that capital defendants and death row inmates
will be represented by attorneys who possess qualifications required by the ABA
Guidelines. This also subjects capital defendants and death row inmates to a real risk that
financial constraints of the public defender agencies will affect the quality of
representation afforded to them as Kentucky must provide defense services in a growing
number of cases with fewer resources.
e Although Kentucky’s public defender system historically has provided representation to
all death row inmates during post-conviction proceedings, Kentucky does not require the
appointment of post-conviction counsel until after an inmate has filed his/her post-
conviction petition and a Commonwealth court determines that the petition sets forth
sufficient evidence to warrant a hearing. Kentucky does not authorize funding for
investigative, mitigation, and expert services to assist in the claim development stage of a
death row inmate’s post-conviction petition, and, a court, in its discretion, may deny
access to expert services even when it has determined that a post-conviction hearing is
warranted.
e A 2011 study found that Kentucky public defenders who handle death penalty cases
make 31% less than similarly experienced attorneys in surrounding states, constituting
the lowest average salaries of examined jurisdictions plus the Kentucky federal defender.
Elected Commonwealth’s Attorneys who prosecute and try capital cases in many circuits
also earn substantially more than their public defender counterparts. The annual salaries
of DPA’s most experienced capital defense attorneys range from $75,810 to $86,131
while the elected Commonwealth Attorney in each judicial district earns an annual salary
of $110,346.
While the public defender agencies may contract with private counsel to handle a death penalty
case, the hourly rates and maximum caps on compensation available for contract counsel may
serve as a deterrent to attracting individuals with the needed qualifications to undertake the
demanding responsibilities and complexities of a death penalty case. Furthermore, the hourly
xxiil
compensation rates available for attorneys contracted by other Kentucky agencies for civil legal
matters is far greater than that available for attorneys contracted by the public defender to
represent a capital defendant or death row inmate.
Despite efforts to combat excessive caseloads, including contracting with local, private counsel
to provide representation, caseloads for Kentucky public defenders continue to rise.
Approximately forty-four DPA regional trial branch attorneys provide capital representation in
addition to carrying caseloads of over 400 non-capital cases each year, far exceeding national
averages and recommended maximum caseloads. Metro Defender capital attorneys handle
approximately double the capital caseload of their counterparts at DPA. Additionally, while
DPA and the Metro Defender attempt to assign an investigator and mitigation specialist to every
death penalty case, these staff members are routinely overworked and underpaid, carrying
caseloads ranging from twelve to twenty-five capital cases at any given time. Furthermore,
insufficient numbers of support staff have resulted in attorneys performing support staff
functions.
Finally, no Commonwealth entity is vested with the authority to certify the qualifications or
monitor the performance of attorneys who provide representation in capital cases. At least ten of
the seventy-eight individuals who were sentenced to death in Kentucky since the Commonwealth
reinstated capital punishment were represented at trial by attorneys who were later disbarred.
The importance of certification is illustrated by the case of Gregory Wilson who was sentenced
to death after a trial in which the trial court sought representation for him by hanging a sign on
the courtroom door that read “PLEASE HELP. DESPERATE. THIS CASE CANNOT BE
CONTINUED AGAIN.” One of the two attorneys who agreed to take the case had never tried a
felony and the other was a “semi-retired” lawyer who volunteered to serve as lead counsel for
free, “though he had no office, no staff, no copy machine and no law books.” Without a
certification process that ensures that only highly qualified attorneys take on representation of a
capital client, Kentucky fails to guard against capital defendants receiving representation by such
unqualified attorneys in future cases.
Chapter Seven: The Direct Appeal Process
The direct appeal process in capital cases is designed to correct any errors in the trial court’s
findings of fact and law and to determine whether the trial court’s actions during the
guilt/innocence and penalty phases of the trial were proper. One important function of appellate
review is to ensure that death sentences are not imposed arbitrarily or based on improper biases.
Meaningful comparative proportionality review, the process through which a sentence of death is
compared with sentences imposed on similarly-situated defendants to ensure that the sentence is
not disproportionate, is the primary method for preventing arbitrariness and bias at sentencing.
In this chapter, we examined Kentucky’s laws, procedures, and practices relevant to the direct
appeal process and assessed whether they comply with the ABA’s policies on the direct appeal
process.
A summary of Kentucky’s overall compliance with the ABA’s policies on the direct appeal
process is illustrated in the following chart.
Xxiv
Direct Appeal Process
7 In Partially in | Notin | Insufficient | Not
Comptianes [il Gompliance:| Compliance | Compliance | Information | Applicable
to Determine
Statewide
Recommendation Compliance
Recommendation #1: In order to (1) ensure that the
death penalty is being administered in a rational,
non-arbitrary manner, (2) provide a check on broad
prosecutorial discretion, and (3) __ prevent
discrimination from playing a role in the capital
decision-making process, direct appeal courts should x
engage in meaningful proportionality review that
includes cases in which a death sentence was
imposed, cases in which the death penalty was
sought but not imposed, and cases in which the death
penalty could have been but was not sought.
While Commonwealth law requires the Kentucky Supreme Court to determine, on direct appeal,
“Tw]hether the sentence of death is excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the defendant,” the Kentucky Supreme Court limits
its proportionality review to only those cases in which the death penalty actually was imposed.
The Court does not consider cases in which the death penalty was sought but not imposed, or
cases in which the death penalty could have been sought but was not. Without a review
mechanism to ensure that similar sentences are imposed in similar cases on similar defendants,
there is no guarantee of internal consistency within Kentucky’s application of the death penalty.
For example, death sentences have been imposed on defendants for crimes in which a co-
defendant received only a term of years. The Kentucky Supreme Court has held that the
sentences of co-defendants are not relevant in determining the validity of a death sentence.
Furthermore, the Court’s existing proportionality review typically offers minimal analysis of the
similarities between the facts of the case at bar and previous cases in which a death sentence was
imposed. While the Kentucky Supreme Court has reviewed the death sentences imposed on
seventy-eight defendants per this statutorily-mandated proportionality review, it never has
vacated a death sentence on this ground.”
Chapter Eight: State Post-C onviction Proceedings
The importance of state post-conviction proceedings to the fair administration of justice in
capital cases cannot be overstated. Because many capital defendants receive inadequate counsel
at trial and on appeal, discovery in criminal trials is limited, and some constitutional violations
are unknown or cannot be litigated at trial or on direct appeal, state post-conviction proceedings
often provide the first real opportunity to establish meritorious constitutional claims. For this
° The Kentucky Supreme Court has reversed thirty-eight death sentences on direct appeal. See Kentucky Death
Sentences Imposed, Reversed and Commuted, 1976-2011, infra Appendix. In some of these cases, the Court will
not reach the issue of proportionality review if it found a separate basis upon which to overturn the death sentence.
XXV
reason, all post-conviction proceedings should permit the adequate development and judicial
consideration of all claims. In this chapter, we examined the laws, procedures, and practices in
the Commonwealth of Kentucky relevant to state post-conviction proceedings, and we assessed
whether they comply with the ABA’s policies on state post-conviction.
A summary of the Commonwealth’s overall compliance with the ABA’s policies on state post-
conviction proceedings is illustrated by the following chart:
State Post-C onviction Proceedings
7 In Partially in | Notin | Insufficient Not
Compliance ll cosptisaice | Compliance | Compliance’ | tnformation | Applicable
to Determine
Statewide
Recommendation Compliance
Recommendation #1: All post-conviction
proceedings at the trial court level should be
conducted in a manner designed to permit
adequate development and judicial consideration
of all claims. Trial courts should not expedite
post-conviction proceedings unfairly; if X
necessary, courts should stay executions to
permit full and deliberate consideration of claims.
Courts should exercise independent judgment in
deciding cases, making findings of fact and
conclusions of law only after fully and carefully
considering the evidence and the applicable law.
Recommendation #2: The state should provide
meaningful discovery in post-conviction
proceedings. Where courts have discretion to oe
permit such discovery, the discretion should be
exercised to ensure full discovery.
Recommendation #3: Trial judges should
provide sufficient time for discovery and should x
not curtail discovery as a means of expiditing the
proceedings,
Recommendation #4: When deciding post-
conviction claims on appeal, state appellate
courts should address explicitly the issues of fact X
and law raised by the claims and should issue
opinions that fully explain the bases for
disposititions of claims.
Recommendation #5: On the initial state post-
conviction application, state _ post-conviction
courts should apply a “knowing, understanding xX
and voluntary” standard for waivers of claims of
constitutional error not preserved properly at trial
or on appeal.
Recommendation #6: When deciding post-
conviction claims on appeal, state appellate
courts should apply a “knowing, understanding
and voluntary” standard for waivers of claims of x
constitutional error not raised properly at trial or
on appeal and should liberally apply a plain error
rule with respect to errors of state law in a capital
case.
XXVi
State Post-C onviction Proceedings (C ont’ d)
sae i In Partially in Notin Insufficient Not
— Compliance | | Compliance | Compliance | Compliance | Information | Applicable
= to Determine
—— Statewide
Recommendation = Compliance
Recommendation #7: The state should establish
post-conviction defense organizations, similar in
nature to the capital resource centers de-funded X
by Congress in 1996, to represent capital
defendants in state post-conviction, federal
habeas corpus, and clemency proceedings.
Recommendation #8: The state should appoint
post-conviction defense counsel whose
qualifications are consistent with the ABA
Guidelines on the Appointment and Performance x
of Counsel in Death Penalty Cases. The state
should compensate appointed counsel adequately
and, as necessary, provide sufficient funds for
investigators and expert.
Recommendation #9: State courts should give
full retroactive effect to U.S. Supreme Court
decisions in all proceedings, including second X
and successive post-conviction proceedings, and
should consider in such proceedings the decisions
of federal appeals and district courts.
Recommendation #10: State courts should
permit second and successive post-conviction
proceedings in capital cases where counsels’
omissions or intervening court decisions resulted x
in possibly meritorious claims not previously
being raised, factually or legally developed, or
accepted as legally valid,
Recommendation #11: In post-conviction
proceedings, state courts should apply the
harmless error standard of Chapman v. x
California, requiring the prosecution to show that
a constitutional error is harmless beyond a
reasonable doubt.
Recommendation #12: During the course of a
moratorium, a “blue ribbon” commission should
undertake a review of all cases in which
individuals have been either wrongfully x
convicted or wrongfully sentenced to death and
should recommend ways to prevent such
wrongful results in the future.
Although the Commonwealth of Kentucky should be applauded for some aspects of its post-
conviction review process, the several deficiencies that the Kentucky Assessment Team
identified in that process are cause for concern, as they may prevent a court from reviewing a
death row inmate’s claims of serious, constitutional error.
Some Commonwealth rules and practices do not permit adequate development and judicial
consideration of death row inmates’ claims of constitutional error. For example, while Kentucky
imposes a three-year statute of limitations for the filing of a post-conviction petition, this has
XXVii
been characterized as the “outer limit” of time permitted for the filing of such claims. Therefore,
in instances in which an execution date is set prior to the expiration of the three-year period, the
time for development and filing of a claim is significantly curtailed. Inmates not awaiting
execution do not face a similar time constraint. Furthermore, trial courts have dismissed initial
motions for post-conviction relief without conducting an evidentiary hearing, even when an
evidentiary hearing would have facilitated full judicial consideration of an inmate’s petition.
Kentucky also does not authorize discovery in state post-conviction proceedings and prohibits
inmates from using the Open Records Act to obtain materials possessed by law enforcement that
may be essential for establishing a death row inmate’s constitutional claims. Moreover, the lack
of discovery during post-conviction review makes it more likely that death row inmates will be
unable to develop viable claims of constitutional error in light of the truncated time period in
which they must prepare their petitions. Taken together, these aspects of the Commonwealth’s
post-conviction proceedings significantly impede an inmate’s ability to present thoroughly
his/her claims.
Furthermore, Kentucky post-conviction courts will not entertain a claim of constitutional error if
an inmate failed to raise, or improperly raised, the issue at trial or on direct appeal—not even in
rare circumstances for exceptional reasons. Instead, even the most egregious constitutional
defect must be argued as an ineffective assistance of counsel claim, which imposes an additional
burden on the inmate to show that counsel’s performance was deficient and that this deficient
performance affected the outcome of the case.
In addition, Kentucky has not always given full retroactive effect to U.S. Supreme Court
decisions. Moreover, until 2010, the Kentucky Supreme Court did not recognize a constitutional
claim of ineffective assistance of appellate counsel, despite the U.S. Supreme Court’s
recognition of this right in 1985.
The Commonwealth’s public defender entities voluntarily have represented death row inmates
during state post-conviction, federal habeas corpus, and clemency proceedings. However,
Kentucky does not require the appointment of post-conviction counsel to assist death row
inmates in the preparation and presentation of their initial post-conviction petitions.
Chapter Nine: Clemency
Given that the clemency process is the final avenue of review available to a death row inmate, it
is imperative that clemency decision-makers evaluate all of the factors bearing on the
appropriateness of the death sentence without regard to constraints that may limit a court’s or
jury’s decision-making. In this chapter, we reviewed Kentucky’s laws, procedures, and practices
concerning the clemency process and assessed whether they comply with the ABA’s policies on
clemency.
A summary of Kentucky’s overall compliance with the ABA’s policies on clemency is illustrated
in the following chart.
XXVili
Clemency
Ss Compliance
Recommendation ~
In
Compliance
Partially in
Compliance
Not in
Compliance
Insufficient
Information
to Determine
Statewide
Compliance
Not
Applicable
Recommendation #1: The clemency decision-
making process should not assume that the courts
have reached the merits on all issues bearing on
the death sentence in a given case; decisions
should be based upon an independent
consideration of facts and circumstances.
Recommendation #2: The clemency decision-
making process should take into account all
factors that might lead the decision maker to
conclude that death is not the appropriate
punishment.
Recommendation #3: Clemency decision-
makers should consider any pattern of racial or
geographic disparity in carrying out the death
penalty in the jurisdiction, including the
exclusion of racial minorities from the jury
panels that convicted and sentenced the death-
row inmate.
Recommendation #4: Clemency decision-
makers should consider the inmate’s mental
retardation, mental illness, or mental
competency, if applicable, the inmate’s age at the
time of the offense, and any evidence of lingering
doubt about the inmate’s guilt.
Recommendation #5: Clemency decision-
makers should consider an inmate’s possible
rehabilitation or performance of positive acts
while on death row.
Recommendation #6: Death row inmates should
be represented by counsel and such counsel
should have qualifications consistent with the
ABA Guidelines on the Appointment and
Performance of Counsel in Death Penalty Cases.
Recommendation #7: Prior to clemency
hearings, counsel should be entitled to
compensation, access to investigative, and expert
resources and provided with sufficient time to
develop claims and to rebut the State’s evidence.
Recommendation #8: Clemency proceedings
should be formally conducted in public and
presided over by the Governor or other officials
involved in making the determination.
Recommendation #9: If two or more individuals
are responsible for clemency decisions or for
making recommendations to clemency decision-
makers, their decisions or recommendations
should be made only after in-person meetings
with petitioners.
XXIX
Clemency (C ont’ d)
7 In Partially in Notin Insufficient Not
Compliance Compliance | Compliance | Compliance } Information | Applicable
to Determine
Statewide
Recommendation Compliance
Recommendation #10: Clemency decision-
makers should be fully educated and should
encourage public education about clemency xX
powers and limitations on the judicial system’s
ability to grant relief under circumstances that
might warrant grants of clemency.
Recommendation #11: To the maximum extent
possible, clemency determinations should be Xx
insulated from political considerations or
impacts.
Of the three persons who have been executed since Kentucky reinstated the death penalty in
1976, only one sought clemency immediately prior to his execution. In addition, since 1976, two
death row inmates’ sentences have been commutated to life without the possibility of parole.
With each grant of clemency, the Kentucky Governor provided a statement of reasons for the
commutation of the inmate’s sentence. In Kevin Stanford’s case, Governor Paul Patton
commuted the sentence because Stanford was seventeen at the time of the offense; in the second
case, Governor Ernie Fletcher commuted Jeffrey Leonard’s sentence due to the poor
representation afforded to Leonard at the time of his capital trial. In both of these cases, the
courts had rejected the issue upon which clemency was ultimately granted. However, it does not
appear that the Governor files a similar statement of reasons when an inmate’s petition for
clemency is denied, although section 77 of the Kentucky Constitution requires that the Governor
file with each application for clemency a statement of reasons for his decision.
Generally, there are few laws, rules, or guidelines governing the clemency filing and decision-
making process, which leads to inconsistent practices and an unpredictable process. In most
instances, inmates have filed a petition for clemency following the Governor’s issuance of a
death warrant, which may come at any time after the inmate’s first appeal has become final.
While some Governors’ may wait to sign a death warrant until the inmate’s state and federal
appeals are exhausted, in contrast, other Kentucky Governors may issue a death warrant before
the statute of limitations placed on filing appeals has lapsed. Thus, in some cases, counsel must
file a clemency petition that is not ripe for review and is never then reviewed by the Office of the
Kentucky Governor. Conversely, an execution date may be set quickly causing a hastily
prepared or incomplete petition for clemency to be filed on behalf of the condemned inmate.
Furthermore, while the Kentucky Governor possesses the sole constitutional and statutory power
to grant or deny clemency, s/he may request an investigation and a non-binding recommendation
from the Kentucky Parole Board (Board). Board members must meet certain experience and
training requirements to serve. Since the reinstatement of the death penalty, however, no
Kentucky Governor has requested the Board’s participation in a death row inmate’s clemency
determination. It is possible there will be no hearing or meeting with the death row inmate prior
to execution. In contrast, in non-capital cases, the Kentucky Parole Board conducts an in-person
XXX
meeting with inmates seeking parole. Finally, while Kentucky’s public defender agencies seek
to provide counsel to each death row inmate petitioning for clemency, the right to counsel is not
guaranteed. Moreover, a death row inmate may be denied access to prison officials who would
support the inmate’s application for commutation of a sentence. Prison officials are often the
only individuals with whom a death row inmate interacts and are therefore uniquely able, if
amenable, to support an inmate’s application for clemency. The Commonwealth’s denial of
access to such individuals unnecessarily frustrates a death row inmate’s ability to develop and
present relevant information that could result in a sentence less than death.
Chapter Ten: Capital Jury Instructions
In capital cases, jurors possess the “awesome responsibility” of deciding whether another person
will live or die. Due to the complexities inherent in capital proceedings, trial judges must present
fully and accurately, through jury instructions, the applicable law to be followed. Sometimes,
however, jury instructions are poorly written and poorly conveyed, leading to confusion among
jurors as to the applicable law and the extent of their responsibilities. In this chapter, we
reviewed Kentucky’s laws, procedures, and practices on capital jury instructions and assessed
whether they comply with the ABA’s policies on capital jury instructions.
A summary of Kentucky’s overall compliance with the ABA’s policies on capital jury
instructions is illustrated in the following chart.
Capital J ury Instructions
Compliance Tasaiteat
In Partially in Not in peu jon Not
Compliance | Compliance | Compliance | si tevije” Applicable
Recommendation Compliance
Recommendation #1: Jurisdictions should work
with attorneys, judges, linguists, social scientists,
psychologists, and jurors to evaluate the extent to
which jurors understand instructions, revise the x
instructions as necessary to ensure that jurors
understand applicable law, and monitor the extent
to which jurors understand revised instructions to
permit further revision as necessary.
Recommendation #2: Jurors should receive
written copies of court instructions to consult x
while the court is instructing them and while
conducting deliberations.
Recommendation #3: Trial courts should
respond meaningfully to jurors’ requests for
clarification of instructions by explaining the
legal concepts at issue and meanings of words x
that may have different meanings in everyday
usage and, where appropriate, by directly
answering jurors’ questions about applicable law.
XXxXi
Capital J ury Instructions (C ont’ d)
Compliance Insuficent
In Partially in Notin mormaton,
; : A to Determine Not
Compliance | Compliance | Compliance | "sitewide | Applicable
Recommendation Compliance
Recommendation #4: Trial courts should instruct
jurors clearly on available _ alternative
punishments and should, upon the defendant’s
request during the sentencing phase, permit x
parole officials or other knowledgeable witnesses
to testify about parole practices in the state to
clarify jurors’ understanding of alternative
sentences.
Recommendation #: Trial courts should instruct
[jurors that a juror may return a life sentence, even
in the absence of any mitigating factor and even
where an aggravating factor has been established xX
beyond a reasonable doubt, if the juror does not
believe that the defendant should receive the
death penalty,
Recommendation #6: Trial courts should not
place limits on a juror’s ability to give full x
consideration to any evidence that might serve as
a basis for a sentence less than death.
Recommendation #7: In states where it is
applicable, trial courts should make clear in jury
instructions that the weighing process for
considering aggravating and mitigating factors x
should not be conducted by determining whether
there are a greater number of aggravating factors
than mitigating factors.
In its review of the Commonwealth’s approach to jury instructions in capital cases, the Kentucky
Assessment Team identified several areas of concern. First, there is no indication that the
Commonwealth has undertaken a thorough evaluation of the extent to which jurors understand
the instructions they are given in capital cases. The imperative for such an evaluation cannot be
doubted. Disturbingly high percentages of Kentucky capital jurors interviewed by the Capital
Jury Project failed to understand the guidelines for considering aggravating and mitigating
evidence. For example, 45.9% of jurors failed to understand that they could consider mitigating
evidence at sentencing, 61.8% failed to understand that they need not find mitigation “beyond a
reasonable doubt,” and 83.5% did not understand that they need not have been unanimous on
findings of mitigation. Despite this evidence of juror miscomprehension, the Kentucky Supreme
Court has held that jurors need not be supplied with a definition of “mitigating circumstances.”
The Kentucky Supreme Court also has prohibited trial testimony regarding parole practices even
though many jurors, concerned with erring on the side of leniency, opt to recommend a sentence
of death when they otherwise would not. Trial courts also need not clarify for jurors that they
may recommend a life sentence regardless of their finding on aggravation and mitigation.
Chapter Eleven: Judicial Independence
XXxii
In some states, judicial elections, appointments, and confirmations are influenced by
consideration of judicial nominees’ or candidates’ purported views of the death penalty or of
judges’ decisions in capital cases. In addition, judges’ decisions in individual cases sometimes
are, or appear to be, improperly influenced by electoral pressures. This increases the possibility
that judges will be selected, elevated, and retained by a process that ignores the larger interests of
justice and fairness, focuses narrowly on the issue of capital punishment, and undermines
society’s confidence that individuals in court are guaranteed a fair hearing. In this chapter, we
reviewed Kentucky’s laws, procedures, and practices on the election and appointment of judges
and on judicial decision-making processes and assessed whether they comply with the ABA’s
policies on judicial independence.
A summary of Kentucky’s overall compliance with the ABA’s policies on judicial independence
is illustrated in the following chart.
Judicial Independence
‘Goniplianes. In Partially in | Notin Insufficient Not
Compliance | Compliance | Compliance | Information | Applicable
to Determine
‘ Statewide
Recommendation Compliance
Recommendation #1: States should examine the
fairness of their judicial election/appointment process
and should educate the public about the importance of x
judicial independence and the effect of unfair
practices on judicial independence.
Recommendation #2: A judge who has made any
promise regarding his/her prospective decisions in
capital cases that amounts to prejudgment should not x
preside over any capital case or review any death
penalty decision in the jurisdiction.
Recommendation #3: Bar associations and
community leaders should speak out in defense of
judges who are criticized for decisions in capital
cases, educate the public concerning the roles and
responsibilities of judges and lawyers in capital cases,
and publicly oppose any questioning of candidates for x
judicial appointment or re-appointment concerning
their decisions in capital cases. Purported views on the
death penalty or on habeas corpus should not be
litmus tests or important factors in the selection of
judges.
Recommendation #4: A judge who observes
ineffective lawyering by defense counsel should
inquire into counsel’s performance and, where x
appropriate, take effective actions to ensure defendant
receives a proper defense.
Recommendation #5: A judge who determines that
prosecutorial misconduct or other unfair activity has
occurred during a capital case should take immediate xX
action to address the situation and to ensure the capital
proceeding is fair,
XXXili
Judicial Independence (C ont’ d)
—— Compl In Partially in | Notin | Insufficient | Not
— omENanee Compliance | Compliance | Compliance | Information | Applicable
= to Determine
, —— Statewide
Recommendation Se Compliance
Recommendation #6: Judges should do all within
their power to ensure that defendants are provided x
with full discovery in capital cases.
While some Kentucky entities and even judicial candidates have sought to promote and educate
the public on the importance of an independent and impartial judiciary, the Commonwealth has
not examined the fairness of its statewide judicial selection process. Meanwhile, campaign
rhetoric in the Commonwealth’s judicial election system raises significant questions about both
the fairness of judicial selection in Kentucky and the independence of judges. For example,
there have been numerous instances where judicial candidates have stated their view on capital
punishment and/or campaigned on a “tough on crime” platform, including criticizing an
incumbent judge for the percentage of cases in which the judge had ruled in favor of criminal
defendants. Judicial candidates’ assertion of their party affiliation is likely to increase since the
U.S. Court of Appeals for the Sixth Circuit invalidated the portion of the Kentucky Code of
Judicial Conduct that prohibited judges and judicial candidates from publicly disclosing their
party affiliation. Furthermore, the current operation of the Commonwealth’s appointment
process for vacancies on the bench permits the Governor to wield undue influence in the
appointment of judges.
Since the death penalty was reinstated in 1976, death sentences have been imposed on seventy-
eight defendants in Kentucky. Fifty of these defendants' cases have seen a reversal of a death
sentence by the state or federal courts due to trial court errors, prosecutorial misconduct, or
ineffective assistance of counsel. The prevalence of reversals of death sentences in the
Commonwealth demonstrates that trial courts are not always taking effective action to ensure
that capital proceedings are fair. Finally, while full or open file discovery may occur via
agreement, it is not required, and Commonwealth trial judges need only ensure that parties
adhere to the Kentucky rules of discovery. The Commonwealth does not permit discovery in
capital post-conviction proceedings. Kentucky courts are under no obligation to ensure to
discovery in this context.
Chapter Twelve: Treatment of Racial and Ethnic Minorities
To eliminate the impact of race in the administration of the death penalty, the ways in which race
infects the system must be identified, and strategies must be devised to root out the
discriminatory practices. In this chapter, we examined Kentucky’s laws, procedures, and
practices pertaining to the treatment of racial and ethnic minorities and assessed whether they
comply with the ABA’s policies.
A summary of Kentucky’s overall compliance with the ABA’s policies on racial and ethnic
minorities and the death penalty is illustrated in the following chart.
XXXxiV
Racial and Ethnic Minorities
Compliance
Recommendation
In
Compliance
Partially in
Compliance
Notin
Compliance
Insufficient
Information
to Determine
Statewide
Compliance
Not
Applicable
Recommendation #1: Jurisdictions should fully
investigate and evaluate the impact of racial
discrimination in their criminal justice systems and
develop strategies that strive to eliminate it.
Recommendation #2: Jurisdictions should collect and
maintain data on the race of defendants and victims, on
the circumstances of the crime, on all aggravating and
mitigating circumstances, and on the nature and strength
of the evidence for all potential capital cases. The data
should be collected and maintained with respect to every
stage of the criminal justice process, from reporting of the
crime through execution of the sentence.
Recommendation #3: Jurisdictions should collect and
review all valid studies already undertaken to determine
the impact of racial discrimination on the administration
of the death penalty and should identify and carry out any
additional studies that would help determine
discriminatory impacts on capital cases. In conducting
new studies, states should collect data by race for any
aspect of the death penalty in which race could be a
factor.
Recommendation #4: Where patterns of racial
discrimination are found in any phase of the death
penalty administration, jurisdictions should develop, in
consultation with legal scholars, practitioners, and other
appropriate experts, effective remedial and prevention
strategies to address the discrimination,
Recommendation #5: Jurisdictions should adopt
legislation explicitly stating that no person shall be put to
death in accordance with a sentence sought or imposed as
a result of the race of the defendant or the race of the
victim. To enforce this law, jurisdictions should permit
defendants and inmates to establish prima facie cases of
discrimination based upon proof that their cases are part
of established racially discriminatory patterns. If a prima
facie is established, the state should have the burden
of rebutting it by substantial evidence.
Recommendation #6: Jurisdictions should develop and
implement educational programs applicable to all parts of
the criminal justice system to stress that race should not
be a factor in any aspect of death penalty administration.
To ensure that such programs are effective, jurisdictions
also should impose meaningful sanctions against any state
actor found to have acted on the basis of race in a capital
case.
Recommendation #7: Defense counsel should be trained
to identify and develop racial discrimination claims in
capital cases. Jurisdictions also should ensure that
defense counsel are trained to identify biased jurors
during voir dire.
XXXV
Racial and Ethnic Minorities (C ont’ d)
; In Partially in | Notin | Insufficient | Not
Complianes Ti) cisinptisnse | Comptianes | Compliance’ | futormation | ‘Applicable
to Determine
Recommendation Statewide
Compliance
Recommendation #8: Jurisdictions should require jury
instructions that it is improper for jurors to consider any
racial factors in their decision making and that jurors xe
should report any evidence of racial discrimination in jury
deliberations.
Recommendation #9: Jurisdictions should ensure that
judges recuse themselves from capital cases when any
party in a given case establishes a reasonable basis for x
concluding that the judge’s decision-making could be
affected by racially discriminatory factors.
Recommendation #10: States should permit defendants
or inmates to raise directly claims of racial discrimination
in the imposition of death sentences at any stage of
judicial proceedings, notwithstanding any procedural rule x
that otherwise might bar such claims, unless the state
proves in a given case that a defendant or inmate has
knowingly and intelligently waived the claim.
Numerous empirical studies, including one commissioned by the Kentucky General Assembly,
have shown that the Commonwealth is more likely to seek the death penalty when the offender is
black and the victim is white, and that a death sentence is more likely to be imposed on black
offenders convicted of killing a white victim. In response to such findings, in 1998, Kentucky
became the first state in the United States to adopt a Racial Justice Act (KRJA), which permits
capital defendants to raise, during pretrial proceedings, a claim that the Commonwealth sought
the death penalty against the defendant based, in part, on the race of the defendant and/or race of
the victim. The Act requires the trial court to remove the death penalty as a sentencing option if
the defendant is successful under the KRJA.
While the adoption of the KRJA is laudable, the Act appears to have a number of limitations. For
example, the KRJA
e is not applicable retroactively and, therefore, is unavailable to inmates who were
sentenced to death prior to the Act’s adoption in 1998;
e does not to permit a capital defendant or death row inmate to raise a claim of racial
discrimination in the decision to impose the death penalty;
e requires a capital defendant to raise a KRJA claim before trial rather than permitting an
inmate to raise the claim at any stage of the capital proceedings, including on appeal or
during post-conviction proceedings;
e requires a capital defendant to prove racial discrimination by clear and convincing
evidence, rather than by a preponderance of the evidence; and
e does not permit a capital defendant or death row inmate to prevail under the KRJA if s/he
is able to demonstrate that racial considerations played a significant part in the decision to
seek or impose a death sentence in the county, judicial district, or the Commonwealth;
XXXVI
instead, the KRJA requires the defendant to demonstrate evidence of racial discrimination
in the defendant’s individual case.
Furthermore, like claims under the KRJA, claims challenging the Commonwealth’s use of
peremptory challenges on the basis of race (Batson challenges) and claims challenging the racial
composition of the jury pool are procedurally barred on appeal unless raised prior to trial.
In addition, no entity within the Commonwealth collects and maintains data on the race of
defendants and victims, on the circumstances of the crime, on all aggravating and mitigating
circumstances, and on the nature and strength of the evidence for all potential capital cases.
Without these data, Kentucky cannot guarantee that its system ensures proportionality in
charging or sentencing, nor can it determine the extent of racial or ethnic bias in its capital
system. This lack of data collection and reporting on the overall use of capital punishment in
Kentucky makes it impossible for the Commonwealth to determine whether such a system is
operating effectively, efficiently, and without bias.
Since the adoption of the KRJA, the Commonwealth has undertaken a number of investigations
into racial disparities in the criminal justice system and perceptions of racial bias in the judicial
system by court-users. However, Kentucky has not investigated or adopted any specific
remedial or preventative strategies to address racial disparities in capital charging or sentencing
since the 1998 adoption of the KRJA.
The Commonwealth’s public defenders and conflict counsel contracted by the public defenders
are trained to identify and develop racial discrimination claims in capital cases and to identify
biased jurors during voir dire. However, because there are no training requirements that apply
to all capital defense counsel in the Commonwealth, there is no assurance that such counsel are
trained on litigating KRJA claims or other issues of racial discrimination that may arise in a
capital case.
Chapter Thirteen: Mental Retardation and Mental Illness
Mental Retardation
In Atkins v. Virginia, the U.S. Supreme Court held that it is unconstitutional to execute offenders
with mental retardation. This holding, however, does not guarantee that individuals with mental
retardation will not be executed, as each state has the authority to make its own rules for
determining whether a capital defendant is mentally retarded. In this chapter, we reviewed
Kentucky’s laws, procedures, and practices pertaining to mental retardation in connection with
the death penalty and assessed whether they comply with the ABA’s policy on mental retardation
and the death penalty.
A summary of Kentucky’s overall compliance with the ABA’s policies on mental retardation is
illustrated in the following chart.
XXXVil
Mental Retardation
Compliance
Recommendation
In
Compliance
Partially in
Compliance
Notin
Compliance
Insufficient
Information
to Determine
Statewide
Compliance
Not
Applicable
Recommendation #1: Jurisdictions should bar the
execution of individuals who have mental
retardation, as defined by the American Association
on Intellectual and Developmental Disabilities.
Whether the definition is satisfied in a particular case
should be based upon a clinical judgment, not solely
upon a legislatively prescribed IQ measure, and
judges and counsel should be trained to apply the law
fully and fairly. No IQ maximum lower than 75
should be imposed in this regard. Testing used in
arriving at this judgment need not have been
performed prior to the crime.
Recommendation #2: All actors in the criminal
justice system should be trained to recognize mental
retardation in capital defendants and death row
inmates.
Recommendation #3: The jurisdiction should have in
place policies that ensure that persons who may have
mental retardation are represented by attorneys who
fully appreciate the significance of their client’s
mental limitations. These attorneys should have
training sufficient to assist them in recognizing
mental retardation in their clients and understanding
its possible impact on their clients’ ability to assist
with their defense, on the validity of their
“confessions” (where applicable) and on_ their
eligibility for capital punishment, These attorneys
should also have sufficient funds and resources to
determine accurately and prove the mental capacities
and adaptive skill deficiencies of a defendant who
counsel believes may have mental retardation.
Recommendation #4: For cases commencing after
Atkins v. Virginia or the state’s ban on the execution
of the mentally retarded (the earlier of the two), the
determination of whether a defendant has mental
retardation should occur as early as possible in
criminal proceedings, preferably prior to the
guilt/innocence phase of a trial and certainly before
the penalty stage of a trial.
Recommendation #5: The burden of disproving
mental retardation should be placed on the
prosecution, where the defense has presented a
substantial showing that the defendant may have
mental retardation. If, instead, the burden of proof is
placed on the defense, its burden should be limited to
proof by a preponderance of the evidence.
Recommendation #6: During police investigations
and interrogations, special steps should be taken to
ensure that the Miranda rights of a mentally retarded
person are sufficiently protected and that false,
coerced, or garbled confessions are not obtained or
used.
XXXVili
Mental Retardation (Cont'd)
" Insufficient
Compliance ip 4 Information
In Partially in Notin SoD eter Not
A 4 jetermine .
Compliance | Compliance | Compliance | ce ewige | Applicable
Recommendation Compliance
Recommendation #7: The jurisdiction should have
in place mechanisms to ensure that, during court
proceedings, the rights of mentally retarded persons x
are protected against “waivers” that are the product of
their mental disability.
Since 1990, Kentucky has prohibited the execution of offenders with mental retardation, well
before the U.S. Supreme Court’s decision in Atkins. In compliance with the ABA
Recommendations, the Commonwealth requires capital offenders to prove mental retardation by
a preponderance of the evidence. Furthermore, some of the Commonwealth’s practices
facilitates the identification of mental retardation in capital defendants and death row inmates,
such as the training of capital defense counsel on identification of mental retardation in their
clients and litigation of this issue before the courts. Trial counsel in Kentucky also has access to
needed expert resources to determine accurately and prove the mental capacities of capital
defendants.
However, some procedures and practices adopted by the Commonwealth to identify mental
retardation in capital defendants and death row inmates fall short of the ABA Recommendations
in several important respects. For example,
e Kentucky’s statutory definition of mental retardation creates a bright-line
maximum IQ of seventy, which fails to comport with the modern scientific
understanding of mental retardation.
e Kentucky courts also have required that a capital defendant have been IQ-tested
prior to the age of eighteen, which often places an unattainable burden of proof on
the offender since such individuals have rarely taken standardized assessments of
intelligence or adaptive behavior functioning before adulthood.
e Kentucky’s procedural rules could permit a death row inmate who is mentally
retarded to be executed when the inmate have failed to effectively raise the issue
of his/her mental retardation before trial. Furthermore, Kentucky post-conviction
courts typically do not authorize any funding for mental health experts to assist
potentially mentally retarded death row inmates to accurately determine and prove
their mental capacities.
Mental Illness
We also reviewed Kentucky’s laws, procedures, and practices pertaining to mental illness in
connection with the death penalty and assessed whether they comply with the ABA’s policy on
mental illness and the death penalty. Mental illness can affect every stage of a capital trial. It is
relevant to the defendant’s competence to stand trial, it may provide a defense to the murder
charge, and it can be the centerpiece of the mitigation case. Conversely, when the judge,
XXXiX
prosecutor, or jurors are misinformed about the nature of mental illness and its relevance to the
defendant’s culpability and life experience, tragic consequences often follow for the defendant.
A summary of Kentucky’s overall compliance with the ABA’s policies on mental illness is
illustrated in the following chart.
Mental Illness
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance | Compliance | Information | Applicable
to Determine
. Statewide
Recommendation Compliance
Recommendation #1: All actors in the criminal
justice system, including police officers, court
officers, prosecutors, defense attorneys, judges, x
and prison authorities, should be trained to
recognize mental illness in capital defendants
and death row inmates.
Recommendation #2: During _ police
investigations and interrogations, special steps
should be taken to ensure that the Miranda rights x
of a mentally ill person are sufficiently protected
and that false, coerced, or garbled confessions
are not obtained or used.
Recommendation #8: The jurisdiction should
have in place policies that ensure that persons
who may have mental illness are represented by
attorneys who fully appreciate the significance of
their client’s mental disabilities. These attorneys
should have training sufficient to assist them in
recognizing mental disabilities in their clients
and understanding its possible impact on their x
clients’ ability to assist with their defense, on the
validity of their “confessions” (where applicable)
and on their initial or subsequent eligibility for
capital punishment. These attorneys should also
have sufficient funds and resources to determine
accurately and prove the disabilities of a
defendant who counsel believes may have mental
disabilities.
Recommendation #1: Prosecutors should
employ, and trial judges should appoint, mental
health experts on the basis of their qualifications
and relevant professional experience, not on the
basis of the expert’s prior status as a witness for x
the state. Similarly, trial judges should appoint
qualified mental health experts to assist the
defense confidentially according to the needs of
the defense, not on the basis of the expert’s
current or past status with the state.
xl
Mental Illness (C ont’ d)
Compliance
Recommendation
In
Compliance
Partially in
Compliance
Notin
Compliance
Insufficient
Information
to Determine
Statewide
Compliance
Not
Applicable
Recommendation #: Jurisdictions should
provide adequate funding to permit the
employment of qualified mental health experts in
capital cases. Experts should be paid in an
amount sufficient to attract the services of those
who are well-trained and who remain current in
their fields. Compensation should not place a
premium on quick and inexpensive evaluations,
but rather should be sufficient to ensure a
thorough evaluation that will uncover pathology
that a superficial or cost-saving evaluation might
mis
Recommendation #6: Jurisdictions should
forbid death sentences and executions for
everyone who, at the time of the offense, had
significant limitations in intellectual functioning
and adaptive behavior as expressed in
conceptual, social, and practical adaptive skills,
resulting from mental retardation, dementia, or a
traumatic brain injury.
Recommendation #7: The jurisdiction should
forbid death sentences and executions with
regard to everyone who, at the time of the
offense, had a severe mental disorder or
disability that significantly impaired the capacity
(a) to appreciate the nature, consequences, or
wrongfulness of one’s conduct, (b) to exercise
rational judgment in relation to conduct, or (c) to
conform one’s conduct to the requirements of the
law.
Recommendation #8: To the extent that a
mental disorder or disability does not preclude
imposition of the death sentence pursuant to a
particular provision of law, jury instructions
should communicate clearly that a mental
disorder or disability is a mitigating factor, not an
aggravating factor, in a capital case, that jurors
should not rely upon the factor of a mental
disorder or disability to conclude that the
defendant represents a future danger to society,
and that jurors should distinguish between the
defense of insanity and the defendant's
subsequent reliance on mental disorder or
disability as a mitigating factor.
Recommendation #9: Jury instructions should
adequately communicate to jurors, where
applicable, that the defendant is receiving
medication for a mental disorder or disability,
that this affects the defendant's perceived
demeanor, and that this should not be considered
in aggravation.
xli
Mental Illness (C ont’ d)
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance | Compliance | Information | Applicable
to Determine
. Statewide
Recommendation Compliance
Recommendation #10: The jurisdiction should
have in place mechanisms to ensure that, during
court proceedings, the rights of persons with
mental disorders or disabilities are protected
against "waivers" that are the product of a mental
disorder or disability. In particular, the
jurisdiction should allow a "next friend" acting x
on a death row inmate’s behalf to initiate or
pursue available remedies to set aside the
conviction or death sentence, where the inmate
wishes to forego or terminate post-conviction
proceedings but has a mental disorder or
disability that significantly impairs his/her
capacity to make a rational decision.
Recommendation #11: The jurisdiction should
stay post-conviction proceedings where a
prisoner under a sentence of death has a mental
disorder or disability that significantly impairs
his/her capacity to understand or communicate
pertinent information, or otherwise to assist
counsel, in connection with such proceedings and
the prisoner's participation is necessary for a fair x
resolution of specific claims bearing on the
validity of the conviction or death sentence. The
jurisdiction should require that the prisoner’s
sentence be reduced to the sentence imposed in
capital cases when execution is not an option if
there is no significant likelihood of restoring the
prisoner’s capacity to participate in post-
conviction proceedings in the foreseeable future.
Recommendation #12: The jurisdiction should
provide that a death row inmate is not
“competent” for execution where the inmate, due
to a mental disorder or disability, has
significantly impaired capacity to understand the
nature and purpose of the punishment or to
appreciate the reason for its imposition in the x
inmate’s own case. It should further provide that
when such a finding of incompetence is made
after challenges to the conviction's and death
sentence’s validity have been exhausted and
execution has been scheduled, the death sentence
shall be reduced to the sentence imposed in
capital cases when execution is not an option.
Recommendation #13: Jurisdictions should
develop and disseminate—to police officers,
attorneys, judges, and other court and prison
officials—models of best practices on ways to
protect mentally ill individuals within the Xx
criminal justice system. In developing these
models, jurisdictions should enlist the assistance
of organizations devoted to protecting the rights
of mentally ill citizens.
xiii
Many actors within the Kentucky criminal justice system, including law enforcement,
corrections personnel, and, most notably, capital defense counsel, receive training on recognizing
mental illness in capital defendants and death row inmates. As in the case with mental
retardation, public defenders undergo training on recognizing mental illness and proving their
clients’ mental capabilities, although training is not required of all attorneys who represent a
capital defendant or death row inmate. Furthermore, trial courts in Kentucky often grant trial
counsel's ex parte requests for funding to hire qualified mental health experts to assist the
defense confidentially.
Despite these efforts, the Commonwealth’s death penalty system does not adequately protect the
rights of individuals with severe mental illness. Kentucky is one of only a few states that permit
a finding of “guilty but mentally ill,” but Kentucky courts cannot exclude the death penalty as a
sentencing option for defendants found guilty but mentally ill. Furthermore, while the
Commonwealth does prohibit execution of mentally retarded offenders, as described above,
Kentucky does not prohibit execution of offenders with mental disabilities similar to mental
retardation, such as dementia or traumatic brain injury, but which manifest after the age of
eighteen. In addition, Kentucky does not prohibit imposition of a death sentence or execution of
an individual who, at the time of his/her offense, had a severe mental illness, disorder, or
disability that significantly impaired his/her capacity to appreciate the nature, consequences, or
wrongfulness of his/her conduct to exercise rational judgment in relation to conduct, or to
conform his/her conduct to the requirements of the law.
Kentucky does not require jurors be specifically instructed that a mental disorder or disability is
a mitigating, not an aggravating factor; that evidence of mental disability should not be relied
upon to conclude that the defendant represents a future danger to society; and to distinguish
between the affirmative defense of insanity and a defendant’s subsequent reliance on similar
evidence to demonstrate a mental disorder or disability as a mitigating factor.
Finally, it does not appear that Kentucky courts will toll the statute of limitations imposed in
post-conviction proceedings if an inmate suffers from a mental disorder or disability that affected
the inmate’s ability to file a timely petition for post-conviction relief. There is also no provision
of Kentucky law that permits a “next friend” to pursue available remedies on a death row
inmate’s behalf if the inmate wishes to forgo further legal proceedings as a result of a mental
disorder or disability that significantly impairs his/her capacity to make a rational decision.
xii
INTRODUCTION
GENESIS OF THE ABA’S DEATH PENALTY ASSESSMENTS PROJ ECT
Fairness and accuracy together form the foundation of the American criminal justice system. As
the United States Supreme Court has recognized, these goals are particularly important in cases
in which the death penalty is sought. Our system cannot claim to provide due process or protect
the innocent unless it provides a fair and accurate system for every person who faces the death
penalty.
Over the course of the past thirty years, the American Bar Association (ABA) has become
increasingly concerned that capital jurisdictions too often provide neither faimess nor accuracy
in the administration of the death penalty. In response to this concern, on February 3, 1997, the
ABA called for a nationwide moratorium on executions until serious flaws in the system are
identified and eliminated. The ABA urges capital jurisdictions to (1) ensure that death penalty
cases are administered fairly and impartially, in accordance with due process, and (2) minimize
the risk that innocent persons may be executed.
In the autumn of 2001, the ABA, through the Section of Individual Rights and Responsibilities,
created the Death Penalty Moratorium Implementation Project (the Project). The Project collects
and monitors data on domestic and international death penalty developments, conducts analyses
of governmental and judicial responses to death penalty administration issues, publishes periodic
reports, encourages lawyers and bar associations to press for moratoriums and reforms in their
jurisdictions, convenes conferences to discuss issues relevant to the death penalty, and
encourages state government leaders to establish moratoriums, undertake detailed examinations
of capital punishment laws and processes, and implement reforms.
To assist the majority of capital jurisdictions that have not yet conducted comprehensive
examinations of their death penalty systems, the Project began in February 2003 to examine
several U.S. jurisdictions’ death penalty systems and preliminarily determine the extent to which
they achieve fairness and minimize the risk of executing the innocent. It undertook assessments
examining the administration of the death penalty in Alabama, Arizona, Florida, Georgia,
Indiana, Ohio, Pennsylvania, and Tennessee and released reports on these states’ capital
punishment systems from 2006 through 2007. A summary report was also published in 2007 in
which the findings of the eight reports completed to date were compiled. Due in large part to the
success of the state assessments produced in the eight jurisdictions described above, the Project
began a second round of assessments in late 2009. In addition to this report on Kentucky, the
Project also plans to release reports in, ata minimum, Missouri, Texas, and Virginia.
The assessments are not designed to replace the comprehensive state-funded studies necessary in
capital jurisdictions, but instead are intended to highlight individual state systems’ successes and
inadequacies. Past state assessment reports have been used as blueprints for state-based study
commissions on the death penalty, served as the basis for new legislative and court rule changes
on the administration of the death penalty, and generally informed decision-makers’ and the
public’s understanding of the problems affecting the fairness and accuracy of their state’s death
penalty system.
All of these assessments of state law and practice use as a benchmark the protocols set out in the
ABA Section of Individual Rights and Responsibilities’ 2001 publication, Death without J ustice:
A Guide for Examining the Administration of the Death Penalty in the United States (the
Protocols). While the Protocols are not intended to cover exhaustively all aspects of the death
penalty, they do cover seven key aspects of death penalty administration: defense services,
procedural restrictions and limitations on state post-conviction and federal habeas corpus
proceedings, clemency proceedings, jury instructions, an independent judiciary, racial and ethnic
minorities, and mental retardation and mental illness. Additionally, the Project added five new
areas to be reviewed as part of the assessments in 2006: preservation and testing of DNA
evidence, identification and interrogation procedures, crime laboratories and medical examiners,
prosecutors, and the direct appeal process.
Each assessment has been or is being conducted by a state-based assessment team. The teams
are comprised of or have access to current or former judges, state legislators, current or former
prosecutors, current or former defense attorneys, active state bar association leaders, law school
professors, and anyone else whom the Project felt was necessary. Team members are not
required to support or oppose the death penalty or a moratorium on executions.
The state assessment teams are responsible for collecting and analyzing various laws, rules,
procedures, standards, and guidelines relating to the administration of the death penalty. In an
effort to guide the teams’ research, the Project created an Assessment Guide that detailed the
data to be collected. The Assessment Guide includes sections on the following: (1) death-row
demographics, (2) DNA testing, and the location, testing, and preservation of biological
evidence, (3) law enforcement tools and techniques, (4) crime laboratories and medical examiner
offices, (5) prosecutors, (6) defense services during trial, appeal, and state post-conviction and
clemency proceedings; (7) direct appeal and the unitary appeal process, (8) state post-conviction
relief proceedings, (9) clemency, (10) jury instructions, (11) judicial independence, (12) racial
and ethnic minorities, and (13) mental retardation and mental illness.
The findings of each assessment team provide information on how state death penalty systems
are functioning in design and practice and are intended to serve as the bases from which states
can launch comprehensive self-examinations, impose reforms, or in some cases, impose
moratoria. Because capital punishment is the law in each of the assessment states and because
the ABA takes no position on the death penalty per se, the assessment teams focused exclusively
on capital punishment laws and processes and did not consider whether states, as a matter of
morality, philosophy, or penological theory, should have the death penalty.
This executive summary consists of a summary of the findings and proposals of the Kentucky
Death Penalty Assessment Team. The body of this Report sets out these findings and proposals
in more detail, followed by an Appendix. The Project and the Kentucky Death Penalty
Assessment Team have attempted to describe as accurately as possible information relevant to
the Kentucky death penalty. The Project would appreciate notification of any factual errors or
omissions in this Report so that they may be corrected in any future reprints.
MEMBERS OF THE KENTUCKY DEATH PENALTY ASSESSMENT TEAM!
Professor Linda Sorenson Ewald, Co-Chair, is a Professor of Law at the University of
Louisville Louis D. Brandeis School of Law. Professor Ewald’s current teaching interests are
family law, the legal profession, and ethics. She helped develop the Greenebaum Public Service
Program, the Brandeis Inn of Court Partners in Professionalism, and the law school’s in-house
clinic which serves low income individuals and victims of domestic violence in Jefferson
County. Her professional activities include service as a member of the Kentucky Bar Foundation
Board, the Kentucky Judicial Nominating Commission, the KBA Ethics 2000 Commission, and
the Louisville and Jefferson County Public Defender Board. Professor Ewald is a graduate of the
University of Louisville (J.D.) where she was an associate editor of the Journal of Family Law.
She also is a graduate of New Y ork University School of Law, where she received an L.L.M.
degree.
Professor Michael J. Zydney Mannheimer, Co-Chair, is a Professor of Law at the Northem
Kentucky University Salmon P. Chase College of Law. Professor Mannheimer teaches courses
on criminal law and procedure, death penalty policy and procedure, and evidence. He served as
a law clerk for the Honorable Sidney H. Stein of the U.S. District Court for the Souther District
of New Y ork, and then for the Honorable Robert E. Cowen of the U.S. Court of Appeals for the
Third Circuit. He has represented clients at every level of the state and federal judiciaries, from
handling sentencing proceedings, motions, and hearings in the New Y ork trial courts to filing a
petition for a writ of certiorari in the U.S. Supreme Court. Professor Mannheimer received his
J.D. in 1994 from Columbia Law School, where he was a Harlan Fiske Stone Scholar all three
years and served as Writing & Research Editor of the Columbia Law Review.
Michael D. Bowling is Of Counsel to the law firm Steptoe & Johnson P.L.L.C. He concentrates
his practice in the areas of governmental affairs and lobbying, county and municipal law,
construction law, environmental law, and products liability. Mr. Bowling has served as chairman
of the Blue Ribbon Panel in Support of Public Advocacy of the Kentucky Bar Association; board
attomey of the Bell County Board of Education; Middlesboro City Attomey; State
Representative, 87th Legislative District; and chairman of the House Judiciary Committee of the
Kentucky Legislature. He received his B.A. from the University of Kentucky and his J.D. from
Northem Kentucky University Salmon P. Chase College of Law.
Professor Allison Connelly is an associate professor of law at the University of Kentucky
College of Law. She joined the University of Kentucky faculty in 1996 as the first Director of
the College’s Legal Clinic. Prior to joining the law school, she spent 13 years as a Kentucky
public defender providing direct representation, including death penalty representation, to needy
individuals at all levels of the criminal justice system. She became the first female Public
Advocate, the head of Kentucky’s statewide public defender system, and has more than twelve
published appellate decisions to her credit. She received her B.A. degree from the University of
Kentucky and her J.D. degree from the University of Kentucky College of Law.
' The affiliations of each member are listed for identification purposes only. Each Team member has acted in
his/her personal capacity. The content and views expressed in this Report do not necessarily reflect those of any
listed affiliations.
Justice Martin E. Johnstone is a retired Kentucky Supreme Court Justice who served from
November 1996 until his retirement in 2006. He was the first judge in Kentucky to have been
elected to all levels of the Court of Justice, having served as a Judge in the Third Magisterial
District, a District Judge in Jefferson County, a Circuit Judge of Jefferson County Circuit Court,
a judge of the Kentucky Court of Appeals, and lastly a Kentucky Supreme Court Justice. Justice
Johnstone has received numerous awards for his professional service and is also actively
involved in several professional organizations. He received his B.A. from Western Kentucky
University and his J.D. from the University of Louisville Louis D. Brandeis School of Law.
Justice James E. Keller is a retired Associate Justice of the Kentucky Supreme Court. He
served for 22 years as Circuit Judge for Fayette County, during which time he served two terms
as the Chief Circuit Judge, was Co-Chair of the First Fayette Family Branch of the Fayette
Circuit Court, and volunteered as a Drug Court Judge. After retiring from the Kentucky
Supreme Court in 2005, Justice Keller joined the firm Gess Mattingly & Atchison P.S.C. He
received his B.A. from Eastern Kentucky University and his J.D. from the University of
Kentucky College of Law.
Frank Hampton Moore Jr. is a partner with the Bowling Green firm Cole & Moore, P.S.C.
His practice areas include trial practice, insurance defense, administrative, medical malpractice
defense, employment, business, and commercial law. He has served as the President of the
Bowling Green-Warren County Bar Association and is a member of several other professional
organizations including the Kentucky Bar Association, Kentucky Bar Foundation, and the
Intemational Association of Defense Counsel. For twelve years, Mr. Moore has served as a
Board Member and Chairman of the Bowling Green Independent Schools. Mr. Moore received
his B.S. from Western Kentucky University and his J.D. from the Northem Kentucky University
Chase College of Law.
Marcia Milby Ridings is a partner is the fim Hamm, Milby & Ridings, P.S.C. Her practice
areas include insurance defense, civil litigation, workers compensation, bankruptcy, employment
law, and product liability. After law school Ms. Ridings served as a law clerk to the Honorable
Eugene E. Siler, Jr. of the U.S. District Court for the Eastem and Western Districts of Kentucky.
She is a member of the Laurel County Bar Association, Kentucky Bar Association, and
Kentucky Academy of Trial Attorneys. She received her B.A. from Georgetown College and her
J.D. from the University of Kentucky College of Law where she was a staff member of the
Kentucky Law Journal.
CHAPTER ONE
AN OVERVIEW OF KENTUCKY’S DEATH PENALTY SYSTEM
I. DEMOGRAPHICS OF KENTUCKY DEATH ROW
A. Historical Perspective
The Commonwealth of Kentucky reenacted the death penalty in 1976.' Between 1976 and 2011,
there have been eighty-two capital offenses for which seventy-eight defendants were sentenced
to death in Kentucky.” During the same time period, the Commonwealth executed three
individuals: Harold McQueen in 1997, Edward Lee Harper in 1999, and Marco Allen Chapman
in 2008. Both Edward Lee Harper and Marco Allen Chapman “volunteered” for execution,
each forgoing his right to seek further review of his death sentence.’ Seven death row inmates
died awaiting appeal of their conviction or death sentence.°
State or federal courts have reversed a death sentence in fifty of the eighty-two capital cases as a
result of serious error that occurred at trial. In addition, Kentucky Governors have commuted
the death sentences of two death row inmates, Jeffrey Leonard and Kevin Stanford.”
B. A Current Profile of Kentucky's Death Row
As of November 17, 2011, Kentucky’s death row houses thirty-five inmates, of whom thirty-four
are male and one is female.® Thirty of the inmates are white, and five are African-American.’
All three individuals who have been executed by the Commonwealth were white and were
Ky. REV. STAT. ANN. § 532.025 (West 1976) (originally enacted as 1976 Ky. Enact. Acts, ch. 15 § 2).
See Kentucky Death Sentences Imposed, Reversed and Commuted, 1976-2011, infra Appendix. Four of the
seventy-eight persons (Epperson, Foley, Hodge, and St. Clair) were sentenced to death for two separate capital
crimes occurring in Kentucky. Id. In total, 161 death sentences have been imposed on seventy-eight defendants
since 1976. In some instances, defendants were re-sentenced to death following a court's reversal, and in other
instances, multiple death sentences may have been handed down in a single case. Id.
Id.
Id. Harold McQueen was sentenced in Madison County, the 25% judicial circuits; Edward Lee Harper was
sentenced in Jefferson County, the 30" judicial district; Marco Allen Chapman was sentenced in Boone County, the
54" judicial district. See McQueen v. Commonwealth, 669 S.W.2d 519 (Ky. 1984); Harper v. Commonwealth, 978
S.W.2d 311 (Ky. 1998); Chapman v. Commonwealth, 265 S.W.3d 156 (Ky. 2007); see also Commonwealth's
Attorneys by Judicial District, OFFICE OF THE ATT’Y GEN. http://www.ag.ky.gov/criminal/pac/commonwealths.htm
(last visited June 10, 2011). Harper withdrew his petition for habeas corpus review in federal court; Marco Allen
Chapman did not file for state post-conviction or federal habeas corpus review of his conviction and death sentence.
See Harper v. Parker, 177 F.3d 567, 573 (6th Cir. 1999) (affirming district court’s determination that inmate was
competent to waive his right to pursue further habeas corpus litigation); Chapman, 265 S.W.3d at 180-81 (finding
that the defendant had the mental capacity to plead guilty, waive mitigation, and “seek[] the death penalty”).
; See Kentucky Death Sentences Imposed, Reversed and Commuted, 1976-2011, infra A ppendix.
Id.
7 Td. See also Ky. Exec. Order No. 2003-1243 (Dec. 8, 2003) (Commutation of Death Sentence); Ky. Exec. Order
No. 2007-1175 (Dec. 10, 2007) (Commutation of Death Sentence).
8 See Kentucky Death Sentences Imposed, Reversed and Commuted, 1976-2011, infra Appendix.
Id.; Profiles of Kentucky Death Row Inmates, Ky. DEP’T OF Corr.,
http://www.corrections.ky.gov/inmateinfo/deathrow.htm (last visited June 10, 2011).
2
4
sentenced to death for murdering a white victim.’ The thirty-five inmates on Kentucky’s death
row were sentenced to death in seventeen of Kentucky’s 120 counties and in fifteen of
Kentucky’s fifty-seven circuit court districts.'! Twenty-three percent of the inmates on
Kentucky’s death row were sentenced in Jefferson County (Louisville) and another twenty-three
percent were sentenced in Fayette County (Lexington).
Il. THE STATUTORY EVOLUTION OF KENTUCKY'S DEATH PENALTY SCHEME
A. Kentucky’s Post-Furman Death Penalty Sentencing Scheme
In the 1972 case Furman v. Georgia, the U.S. Supreme Court held that the death penalty statutes
in various States constituted cruel and unusual punishment and therefore violated the Eighth and
Fourteenth Amendments of the U.S. Constitution.
In 1973, the Kentucky Supreme Court held Kentucky’s death penalty scheme unconstitutional
based on the Furman decision."* The Kentucky General Assembly responded in 1974 with a
new penal code that became effective on January 1, 1975.'° The new penal code included both a
revised capital murder statute and capital sentencing statute mandating imposition of the death
penalty in certain circumstances.’° In 1977, the Kentucky Supreme Court held this ca ital
sentencing scheme unconstitutional in light of Gregg v. Georgia and its companion cases.’” In
response to the Supreme Court's decision in Gregg, in 1976, by an Extraordinary Session of the
General Assembly, a new “controlled discretion” capital sentencing scheme was adopted. !®
1. Kentucky’s 1974 Murder, Kidnapping, and Death Penalty Sentencing Statutes
a. 1974 Murder Statute
Although the 1974 capital sentencing scheme was found unconstitutional by the Kentucky
Supreme Court, the 1974 murder statute, KRS 507.020, remained intact. The 1974 murder
statute sets forth that a person is guilty of murder when, “with the intent to cause the death of
another person, he causes the death of such person or of a third person” or “[ulnder
circumstances manifesting extreme indifference to human life, he wantonly engages in conduct
10 NatT’L ASS’N FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP), DEATH Row U.S.A. 35 (Winter 2010),
available at http://naacpldf.org/files/publications/D RUSA_Winter_2010.pdf;
2 See Kentucky Death Sentences Imposed, Reversed and Commuted, 1976-2011, infra A ppendix.
Id.
S408 U.S. 238, 239-40 (1972).
“Caine v. Commonwealth, 491 S.W.2d 824, 831-32 (Ky. 1973).
15 See Gully v. Kunzman, 592 F.2d 283, 285 n.1 (6th Cir. 1979).
16 Jd. at 285; see also Ky. REV. STAT. ANN. § 532.030 (West 1976).
u Boyd v. Commonwealth, 550 S.W.2d 507, 508 (Ky. 1977) (“[W]e have no choice but to . . . hold the mandatory
death penalty to be unconstitutional.”) (relying on Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428
U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v.
Louisiana, 428 U.S. 325 (1976)).
18 Ky. REV. STAT. ANN. §§ 532.025, 532.030, 532.035 (West 1976); see also Gully, 592 F.2d at 285; Smith v.
Commonwealth, 599 S.W.2d 900, 909 (Ky. 1980).
which creates a grave risk of death to another person and thereby causes the death of another
person.”!° The statute provided that murder is a capital offense in the following circumstances:
(1) The defendant's act of killing was intentional and was for profit or hire;
(2) The defendant's act of killing was intentional, and occurred during the
commission of arson in the first degree, robbery in the first degree, burglary
in the first degree, or rape in the first degree;
(3) The defendant's act of killing was intentional and the defendant was a
prisoner and the victim was a prison employee engaged at the time of the act
in the performance of his duties;
(4) The defendant’s act of killing was intentional and the death was caused
through use of a destructive device;
(5) The defendant’s act or acts of killing were intentional and resulted in
multiple deaths; or
(6) The defendant's act of killing was intentional and the victim was a police
officer, sheriff or deputy sheriff engaged at the time of the act in the lawful
performance of his duties.””
b. 1974 Kidnapping Statute
Under certain circumstances, kidnapping is considered a capital offense in Kentucky.” In 1974,
Kentucky revised and renumbered its kidnapping statute to KRS 509.040.7 Under this statute, a
person is guilty of kidnapping when
he unlawfully restrains another person and when his intent is:
(a) To hold him for ransom or reward;
(b) To accomplish or to advance the commission of a felony;
(c) To inflict bodily injury or to terrorize the victim or another;
(d) To interfere with the performance of a governmental or political function;
or
(e) To use him as a shield or hostage.”
In 2002, KRS 509.040 was amended to include a sixth intent, “[t]o deprive the parents or
guardian of the custody of a minor, when the person taking the minor is not a person exercising
custodial control or supervision of the minor as the term ‘person exercising custodial control or
supervision’ is defined in KRS 600.020,”
19 Ky, REV. STAT. ANN. § 507.020(1)(a)-(b) (West 1974). The murder statute also provided that a person “shall
not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there
was reasonable explanation or excuse....” Ky. REV. STAT. ANN. § 507.020(1)(a) (West 1974).
Ky. REV. STAT. ANN. § 507.020(2) (West 1974).
2! Ky. REV. STAT. ANN. § 507.020 (West 1974).
~ Compare Ky. REV. STAT. ANN. § 509.040 (West 1974), with Ky. Rev. STAT. ANN. § 435.140 (West 1962).
Ky. REV. STAT. ANN. § 509.040 (West 1974).
* Ky. REV. STAT. ANN. § 509.040(£) (West 2002).
The 1974 statute divided kidnapping into three parts: a class B felony, a class A felony, and a
capital offense.° Under the 1974 statute, kidnapping is a capital offense when
the victim is not released alive or when the victim is released alive but
subsequently dies as a result of:
(a) Serious physical injuries suffered during the kidnapping;
(b) Not being released in a safe place; or
(c) Being released in any circumstances which are intended, known or
should have been known to cause or lead to the victim's death.”°
A person found guilty of capital kidnapping will be subject to the capital sentencing guidelines
as described below.
In 2001, the Kentucky General Assembly also classified use of a weapon of mass destruction in
the first degree as a capital offense, provided “a person other than the defendant is killed.””” Jn
2004, the General Assembly classified “fetal homicide” in the first degree as a capital offense.”®
2. 1976 Amendments to Kentucky’s Death Penalty Scheme
Kentucky’s revised death penalty scheme, adopted in 1976, amended several, statutes, including
(1) the murder statute, delineating offenses constituting aggravated murder,”® (2) the penalties
statute, authorizing imposition of the death penalty and other penalties for felony convictions, *°
and (3) the death penalty sentencing statute, describing sentencing procedures for capital cases
and enumerating statutory aggravating and mitigating circumstances.
a. Kentucky’s 1976 Murder and Death Penalty Sentencing Statutes
The 1976 murder statute, KRS 507.020, did not amend the definition of murder; however, the
aggravators listed in the previous statute were deleted and moved to a new death penalty
sentencing statute.** The 1976 murder statute now concludes with “[mJurder is a capital
offense.”
The new death penalty sentencing statutes, KRS 532.025 and KRS 532.030, which now listed the
aggravators, required a bifurcated trial with a separate sentencing hearing where the prosecution
and defense may present “evidence in extenuation, mitigation and aggravation of punishment.”™*
The following aggravating circumstances were included in the 1976 statute:
Id.
Id.
27 Ky. REV. STAT. ANN. § 527.200(3) (West 2011) (enacted June 21, 2001).
28 Ky. REV. STAT. ANN. § 507A .020(2) (West 2011) (enacted Feb. 20, 2004).
2 Ky. REV. STAT. ANN. § 507.020 (West 1976).
8° Ky. REV. STAT. ANN. § 532.030 (West 1976).
5! Ky. REV. STaT. ANN. § 532.025 (West 1976).
® Ky. REV. STAT. ANN. §§ 532.020, 532.025 (West 1976).
Ky. REV. Sta. ANN. § 507.020 (West 1976).
* Ky. REV. STAT. ANN. § 532.025(1)(a) (West 1976).
(1) The offense of murder or kidnapping was committed by a person with a prior
record of conviction for a capital offense, or the offense of murder was
committed by a person who has a substantial history of serious assaultive
criminal convictions;
(2) The offense of murder or kidnapping was committed while the offender was
engaged in the commission of arson in the first degree, robbery in the first
degree, burglary in the first degree, or rape in the first degree, or sodomy in
the first degree;
(3) The offender by his act of murder, armed robbery, or kidnapping knowingly
created a great risk of death to more than one person in a public place by
means of a destructive device, weapon, or other device which would
normally be hazardous to the lives of more than one person;
(4) The offender committed the offense of murder for himself or another, for the
purpose of receiving money or any other thing of monetary value, or for
other profit;
(5) The offense of murder was committed by a person who was a prisoner and
the victim was a prison employee engaged at the time of the act in the
performance of his duties;
(6) The offender's act or acts of killing were intentional and resulted in multiple
deaths; and
(7) The offender's act of killing was intentional and the victim was a state or
local public official or police officer, sheriff, or deputy sheriff engaged at the
time of the act in the lawful performance of his duties.
Most of the aggravating circumstances above no longer required that the offender's act of killing
be intentional, which had been required in the 1974 murder statute.*® The first listed aggravating
circumstance was also added.°”
In addition to the listed aggravating circumstances, the new capital sentencing statute delineated
the following mitigating circumstances:
(1) The defendant has no significant history of prior criminal activity;
(2) The capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance even though the
influence of extreme mental or emotional disturbance is not sufficient to
constitute a defense to the crime;
(3) The victim was a participant in the defendant’s criminal conduct or
consented to the criminal act;
(4) The capital offense was committed under circumstances which the defendant
believed to provide a moral justification or extenuation for his conduct even
though the circumstances which the defendant believed to provide a moral
%® Ky. REV. STAT. ANN. § 532.025(2)(a) (West 1976).
°° Compare Ky. REV. STAT. ANN. § 532.025(2)(a) (West 1976), with Ky. Rev. STAT. ANN. § 507.020(2) (West
1974).
% Ky. REV. STAT. ANN. § 532.025(2)(a) (West 1976).
justification or extenuation for his conduct are not sufficient to constitute a
defense to the crime;
(5) The defendant was an accomplice in a capital offense committed by another
person and his participation in the capital offense was relatively minor;
(6) The defendant acted under duress or under the domination of another person
even though the duress or the domination of another person is not sufficient
to constitute a defense to the crime;
(7) At the time of the capital offense, the capacity of the defendant to appreciate
the criminality of his conduct to the requirements of law was impaired as a
result of mental disease or defect or intoxication even though the impairment
of the capacity of the defendant to appreciate the criminality of his conduct
or to conform the conduct to the requirements of law is insufficient to
constitute a defense to the crime; and
(8) The youth of the defendant at the time of the crime.**
After the presentation of evidence at the sentencing phase, the jury was to be instructed to
consider, in addition to any of the above listed statutory aggravating circumstances or mitigating
circumstances, “any mitigating circumstances or aggravating circumstances otherwise authorized
by law.”
In order for the trier of fact to sentence the defendant to death, it must find at least one
aggravating circumstance beyond a reasonable doubt.” The foreman of the jury must designate,
in writing, the aggravating circumstance(s) that were found.*!
The 1976 penalty statute removed the mandatory death penalty requirement for capital offenses
and instead provided that “[w]hen a person is convicted of a capital offense he shall have his
punishment fixed at death or imprisonment.”“? The imprisonment term for a capital offense was
either life or “a term of not less that twenty years.”°
3. 1984 Amendments to Kentucky’s Capital Sentencing Scheme
The 1984 amendment to the capital sentencing statute, KRS 532.030, included specific terms of
imprisonment available when a defendant is convicted of a capital offense, stipulating that the
defendant may be sentenced to death, to life imprisonment without probation or parole for a
minimum of twenty-five years, to a general term of life imprisonment, or to a minimum of
twenty years.*
%8 Ky. REV. STAT. ANN. § 532.025(2)(b) (West 1976).
8° Ky. REV. STAT. ANN. § 532.025(2) (West 1976).
m Ky. REV. STAT. ANN. § 532.025(3) (West 1976).
Id.
“Ky. REV. STAT. ANN. § 532.030 (West 1976).
‘S Ky. REV. STAT. ANN. § 532.035 (West 1976).
“Ky. REV. STAT. ANN. § 532.030(1) (West 1984).
10
The penalties statute was also amended to require the jury to recommend one of the punishments
now described at KRS 532.030 after considering the “aggravating and mitigating limitations and
requirements.” *°
4. 1998 Amendments to Kentucky’s Capital Sentencing Scheme
Another substantial change to the Kentucky capital sentencing scheme came in 1998 when the
legislature adopted an eighth aggravating circumstance.*® The new version of KRS 532.025 now
permitted imposition of a death sentence if the prosecution could prove, beyond a reasonable
doubt, that
[t]he offender murdered the victim when an emergency protective order or a
domestic violence order was in effect, or when any other order designed to protect
the victim from the offender, such as an order issued as a condition of a bond,
conditional release, probation, parole, or pretrial diversion, was in effect.*”
The 1998 amendments also modified the wording of the seventh mitigating circumstance.”
Originally, the mitigating circumstance provided that “[a]t the time of the capital offense the
capacity of the defendant to appreciate the criminality of his conduct to the requirements of law
was impaired as a result of mental disease or defect or intoxication.” The 1998 amendment
replaced “mental disease and defect” with “mental illness.”"” Mental retardation was also added
as a qualifying condition.*! This mitigating circumstance thus currently reads as follows:
At the time of the capital offense, the capacity of the defendant to appreciate the
criminality of his conduct to the requirements of law was impaired as a result of
mental illness or retardation or intoxication even though the impairment of the
capacity of the defendant to appreciate the criminality of his conduct or to
conform the conduct to the requirements of law is insufficient to constitute a
defense to the crime.”
The 1998 amendments also permitted juvenile court records to be introduced in the guilt phase of
a capital trial as impeachment evidence, or in the sentencing phase of a capital trial, as long as
(1) the juvenile was originally tried as an adult or is currently an adult; and (2) the offense would
have been a felony if committed by an adult.*
The Kentucky General Assembly also added additional penalty options for capital offenses in
1998. Under the new statute, a person convicted of a capital offense may be sentenced to either
‘8 Ky. REV. STAT. ANN. § 532.030 (West 1984).
a Ky, REV. STAT. ANN. § 532.025(2)(a)(8) (West 1998).
7 Id.
48 Ky. REV. STAT. ANN. § 532.025(2)(b)(7) (West 1998).
9 Ky. REV. STAT. ANN. § 532.025(2)(b)(7) (West 1984).
50 Compare Ky. REV. STAT. ANN. § 532.025(2)(b)(7) (West 1998), with Ky. Rev. STAT. ANN. § 532.025(2)(b)(7)
(West 1994).
°! Ky. REV. STAT. ANN. § 532.025(2)(b)(7) (West 1998).
2 id. (emphasis added).
% Ky. REV. STAT. ANN. § 532.025(1)(a) (West 1998).
11
life without benefit of probation or parole, or a term of imprisonment for life
without benefit of probation or parole until he has served a minimum of twenty-
five (25) years of his sentence, or to a sentence of life, or to a term of not less than
twenty (20) years nor more than fifty (50) years.**
5. 2001 Amendments to Kentucky's Capital Sentencing Scheme
In 2001, the Kentucky General Assembly modified the wording of the third aggravating
circumstance in KRS 532.025 to include weapons of mass destruction. The current statute now
reads as follows:
The offender by his act of murder, armed robbery, or kidnapping knowingly
created a great risk of death to more than one (1) person in a public place by
means of a weapon of mass destruction, weapon, or other device which would
normally be hazardous to the lives of more than one (1) person.”
B. Kentucky's Death Penalty Appeals Procedures
Review procedures for capital sentences, found at KRS 532.075, were included in the 1976
enactments and have not been altered since.°° Under the 1976 statute, the Kentucky Supreme
Court must review the punishment at the same time that any other grounds for appeal are
reviewed in the condemned offender's case.°” In determining whether the sentence of death is
appropriate, the court must determine
(1) Whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor, and
(2) Whether the evidence supports the jury’s or judge’s finding of statutory
aggravating circumstances as enumerated in KRS 532.025(2), and
(3) Whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant. 88
In order to assess whether the sentence was proportionate to the crime and the defendant, the
Kentucky Supreme Court must examine all cases in which the death penalty was imposed after
January 1, 1970.*° Following the sentence review and any direct appeal, the Court will “render
its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity
of the sentence.”
The Kentucky Supreme Court is also required, in any case in which a death sentence was
imposed, to include within its decision a reference to all similar cases it considered in its
5! Ky. REV. STAT. ANN. § 532.030 (West 1998).
88 Ky. REV. STAT. ANN. § 532.025(2)(a)(3) (West 2011) (emphasis added).
5° Compare Ky. REV. STAT. ANN. § 532.075 (West 1976), with Ky. REV. STAT. ANN. § 532.075 (West 2011).
8” Ky. REV. STAT. ANN. § 532.075(1)-(2) (West 1976).
88 Ky. REV. STAT. ANN. § 532.075(3) (West 1976).
°° Ky. REV. STAT. ANN. § 532.075(6)(a) (West 1976).
® Ky. REV. STAT. ANN. § 532.075(8) (West 1976).
12
proportionality review." If the Court finds the death sentence to be disproportionate, it may set
the sentence aside and remand the case for resentencing by the trial court.
C. Restrictions on the Death Penalty
1. Age Restriction and Stanford v. Kentucky
In 1986, Kentucky enacted KRS 640.040, which prohibited any “youthful offender who has been
convicted of a capital offense who was under the age of sixteen (16) at the time of the offense”
from being sentenced to death. The maximum penalty a juvenile aged sixteen or under could
receive upon conviction of a capital offense was life imprisonment without the benefit of
probation or parole for twenty-five years.
In 1989, the U.S. Supreme Court reviewed whether the Eighth Amendment prohibited Kentucky
from executing sixteen and seventeen-year-old offenders.°® In Stanford v. Kentucky, the Court
held that Kentucky’s use of capital punishment for juveniles was constitutional.” However, in
2005 the Court reversed itself and prohibited the execution of juvenile offenders by finding that a
Missouri statute similar to Kentucky’s allowing for the execution of juveniles violated the Eighth
Amendment of the U.S. Constitution.
2. Kentucky’s Treatment of Mentally Retarded Offenders
On July 13, 1990, thirteen years before the U.S. Supreme Court specifically banned the
execution of offenders with mental retardation in Atkins v. Virginia,’ Kentucky prohibited the
execution of mentally retarded offenders under KRS 532.140.” A full description of Kentucky's
treatment of mentally retarded offenders is found at Chapter Thirteen on Mental Retardation,
Mental Illness, and the Death Penalty.
3. Kentucky's Racial Justice A ct
®! Ky. REV. STAT. ANN. § 532.075(5) (West 1976). But see Hunt v. Commonwealth, 304 S.W.3d 15, 52 (Ky.
2009) (stating that KRS § 532.075(5) requires the Kentucky Supreme Court to “simply compare[] one death penalty
case with all the other cases in which the death sentence was imposed . . .”) (citing Epperson v. Commonwealth, 197
S.W.3d 46, 63 (Ky. 2006)).
© Ky. REV. STAT. ANN. § 532.075(5) (West 1976).
53 492 U.S. 361 (1989). In 2003, Kevin Stanford’s sentence was commuted by then Governor Paul Patton. See
Henry Weinstein, Death Sentence Commuted for Ky. Man Who Killed at 17, L.A. TIMES, June 22, 2003,
http://articles.latimes.com/2003/jun/22/nation/na-commute22 (last visited June 20, 2011).
64” Ky. REV. STAT. ANN. § 640.040(1) (West 1986). See also Ice v. Commonwealth, 667 S.W.2d 671, 680 (Ky.
1984) (upholding Kentucky’s juvenile death penalty, but stating that an offender's age of fifteen “is an important
factor . . . that should have been given serious consideration at both the transfer hearing in juvenile court and as a
mitigating circumstance at the sentencing phase in circuit court. But it is not a constitutional distinction.”).
6 Ky. REV. STAT. ANN. § 640.040(1) (West 1986).
a Stanford, 492 U.S. at 361.
7 Id.
58 Roper v. Simmons, 543 U.S. 551 (2005).
® 536 U.S. 304 (2002).
™ Ky. REV. STAT. ANN, §§ 532.130, 532.135, 532.140 (West 1990).
13
On March 30, 1998, Kentucky became the first state to adopt a Racial Justice Act [KRJA] under
statute KRS 532.300.” The KRJA provides that “[nJo person shall be subject to or given a
sentence of death that was sought on the basis of race.”’? Fora full discussion of the KRJA, see
Chapter Twelve on Racial and Ethnic Minorities.
7! Ky. REV. STAT. ANN. § 532.300 (West 1998).
® Ky. REV. STAT. ANN. § 532.300(1) (West 1998).
14
III. THE PROGRESSION OF A KENTUCKY DEATH PENALTY CASE FROM ARREST TO EXECUTION
U.S. Supreme C ourt U.S. Supreme U.S. Supreme Decision by
(Discretionary) Court Court Governor
(Discretionary) (Discretionary)
U.S. Court of was
Kentucky Supreme Kentucky Appeals for the Non-binding
Court Supreme C ourt 6" Circuit Recommendation
(Direct Appeal and (Appeal as of (Certificate of of Kentucky
Automatic Review) Right) Appealability Parole Board
Required) (if requested)
I (—
State Circuit State Circuit USS. District Clemency Petition
Court Court Court to Governor
(Trial) (Post-Conviction (Federal Habeas
Review) Corpus)
(==) W—~
Phase Phase
1 2 3 4
15
A. The Pretrial Process
1. Commencement of a Prosecution for a Capital Offense
An individual arrested for the commission of a crime in, Kentucky must be taken “without
unnecessary delay before a judge” for an initial appearance.”* If the person is arrested without a
warrant, the officer making the arrest must file with the clerk of the court a post-arrest complaint
specifying the offense charged and the facts constituting probable cause.”
At the initial hearing, unless waived by the defendant,’ the judge must inform the defendant
(1) Of the nature of the charges against him/her;
(2) That s/he has a right to a preliminary hearing or trial;
(3) That s/he has a right to retain counsel;
(4) That s/he has the right to appointed counsel at no expense if s/he is
financially unable to employ counsel;
(5) Of his/her privilege against self-incrimination; and
(6) Of the amount and conditions of bail.”°
Prior to the determination of bail, the judge must allow the defendant reasonable time and
opportunity to consult with counsel.’””
The determination of he defendant's indigency must be made no later than the defendant’ s first
appearance in court.” If the defendant is found to be indigent, the court must assign counsel.”®
The appointment will continue for the entire trial, sentencing, and direct appeal.®°
2. Preliminary Hearing
A defendant charged with a capital crime in Kentucky is entitled to a preliminary hearing, unless
s/he is indicted by a grand jury before the preliminary hearing commences.” A preliminary
hearing must occur within ten days of the initial appearance if the defendant is in custody and
within twenty days of the initial appearance if the defendant is at-large, unless the preliminary
hearing is waived by the defendant or the defendant is indicted.” The purpose of the
preliminary hearing is for the court to determine whether there is probable cause that the charged
% Ky. R. CRIM. P. 3.02(1).
™ Ky. R. Crim. P. 3.02(2).
5 See Bischoff v. Commonwealth, 96 S.W. 538, 541 (Ky. 1906) (discussing waiver of arraignment).
7% Ky. R. CRIM. P. 3.05(1).
Id. But see Ky. Const. § 16 (“All prisoners shall be bailable by sufficient securities, unless for capital offenses
when the proof is evident or the presumption great. . .”).
7% Ky. REV. STAT. ANN. § 31.120 (West 2011).
7 Ky. R. CRIM. P. 3.05(2).
Id.
5! Ky. R. CRIM. P, 3.07.
Ky. R. Cri. P. 3.10(1)-(3). Failure to commence the preliminary hearing within the specified time will result
in the defendant being discharged from custody. Ky. R. CRIM. P. 3.10(2).
16
offense occurred and whether the defendant committed the charged offense.’ The defendant is
entitled to be present, to be represented by counsel, to cross-examine witnesses and to introduce
any evidence relevant to the probable cause determination or conditions of pretrial release.**
3. Grand Jury Indictment and Information
An individual accused of a capital felony in Kentucky has a constitutional right to be prosecuted
upon a grand jury indictment.® For an indictment to be retumed, at least nine of the twelve
grand jurors must reach consensus.”° If the grand jury does not return an indictment, the accused
will be released from custody.” An indictment obtained prior to the preliminary hearing will
suffice as the probable cause determination. ®°
If the accused waives his/her right to be tried upon an indictment, a prosecution for a capital
offense may proceed upon the filing of an information.®® An information is a written statement
by the Commonwealth’s A ttomey charging an individual with a criminal offense.*°
4. Notice of Intent to Seek the Death Penalty
If the prosecution intends to seek the death penalty, it must provide a notice of aggravating
circumstances prior to the commencement of the trial.°' The notice must be provided to the
defense with “reasonable time and opportunity for preparation,” although the notice need not be
in writin _ Inadequate notice has been determined to be grounds for the reversal of a death
sentence.
5. Arraignment and Pleas
After the service of indictment or information, the defendant is entitled to an arraignment.
During the arraignment, in open court, the court must read or state the substance of the charge
and the defendant must plead in response to the charge.°°
The defendant may plead not guilty, guilty, or guilty but mentally ill (GBMI).° Prior to
accepting a plea of guilty or GBMI, the court must determine that the plea was made “voluntarily
8 Ky. R. CRIM. P. 3.14(1).
8 Ky. R. CRIM. P. 3.14(2); see also Commonwealth v. Wortman, 929 S.W.2d 199, 200 (Ky. Ct. App. 1996).
85 Ky. Const. § 12; Ky. R. CRIM. P. 6.02.(1)
8 Ky. Const. § 248; Ky. REV. STAT. ANN. § 29A.200 (West 2011).
87 Ky. R. Cri. P. 5.22(1).
8 Ky. R. CRIM. P. 3.10(1).
89 Ky. R. CRIM. P. 6.02(1). This waiver must be a written notice filed with the circuit court. Id.
8 Ky. R. CRIM. P. 6.04.
* Ky. REV. STAT. ANN. § 532.025(1)(a) (West 2011).
%2 Smith v. Commonwealth, 845 S.W.2d 534, 537 (Ky. 1993).
93 Td. at 538; Commonwealth v. Maricle, 15 S.W.3d 376, 378-79 (Ky. 2000).
3 Ky. R. Civ. P. 5.05(1) (“All papers after the complaint required to be served upon a party shall be filed with the
court either before service or within a reasonable time thereafter.”); Ky. R. CRIM. P. 8.02.
Td.
© Ky. R. CRIM. P. 8.08. A plea of not guilty by reason of insanity is included under a general plea of not guilty.
Ky. REV. STAT. ANN. § 504.020 (West 2011).
17
with understanding of the nature of the charge.”®” If the defendant refuses to enter a plea, or if
the court refuses to accept a plea of guilty or GBMI, the court must enter a plea of not guilty on
the defendant’s behalf.’ At any time prior to the final judgment, the court may permit a
defendant to withdraw a plea of guilty or GBMI and substitute a plea of not guilty.”
6. Pretrial Conference and Pretrial Motions
After the grand jury retums an indictment or the Commonwealth's A ttomey files an information,
the court, on its own motion or in response to a motion by either party, may order one or more
pretrial conferences.!° The purpose of a pretrial conference is to consider procedural matters
that promote “a fair and expeditious trial.”'°! At the close of the pretrial conference, the court
must prepare and file an order noting the matters agreed upon by the parties.‘
Prior to trial, the defendant may raise “any defense or objection which is capable of
determination without the trial of the general issue.”’’ Motions alleging a defect in the
institution of the prosecution and motions alleging a defect in the indictment or information,
“other than that it fails to show jurisdiction in the court or to charge an offense,” must be made
prior to entering a plea, or the court may permit such motion to be made within a “reasonable
time thereafter.” In addition, requests for discovery! and motions for a severance of
defendants or offenses must be raised prior to trial.!° Failure to raise any of these defenses or
objections within the specified time limits will generally constitute a waiver.’”
If the defendant wishes to introduce expert testimony concerning any mental condition related to
his/her guilt or punishment, s/he must provide written notice to the Commonwealth's A ttomey
and file a copy of the notice with the clerk of the court. The court, sua sponte or upon the
prosecution’s request, may order a mental evaluation of the defendant.'°® The defendant,
through a pretrial motion, may also raise the issue of mental retardation as a bar to execution. '”°
The trial judge will make the determination as to whether the defendant is “seriously mentally
retarded” and thus ineligible for the death penalty.'”!
"Ky. R. CRIM. P. 8.08.
8 Id.
%® Ky. R. CRIM. P. 8.10.
100 Ky. R. CRIM. P. 8.03.
101 Id.
102 Id.
103 Ky. R. CRIM. P. 8.16.
14 Ky. R. CRIM. P. 8.18, 8.20.
105 Ky. R. CRIM. P. 7.24(1)-(2).
106 Ky. R.CRIM.P. 9.16.
107 Ky. R. CRIM. P. 8.18, 8.20. The court may, however grant relief from the waiver for cause shown. Id.
108 Ky. R. CRIM. P. 7.24(B)(i). The notice must be provided at least twenty days prior to trial, but upon
demonstrating cause, the court may permit the notice to be filed late or grant a continuance for the parties to prepare
for trial. Id.
109 Ky. R. Crim. P. 7.24(B)(ii); Ky. REV. STAT. ANN. § 504.070(2) (West 2011) (relating to mental health
evaluation when defendant seeks to present evidence of his/her mental illness or insanity); Ky. REV. STAT. ANN. §
504.100(1) (West 2011) (relating to mental health evaluation to determine defendant’s competency to stand trial).
NO" Ky. REV. STAT. ANN. §§ 532.130(2), 532.135(1), 532.140(1) (West 2011).
“1 Ky. REV. STAT. ANN. §§ 532.135(1), 532.140(1) (West 2011).
18
B. The Capital Trial
Kentucky divides a capital trial into two phases: the first phase determines the guilt or innocence
of the defendant and, if the defendant is convicted of the capital charge, the second phase will
concem only the defendant’s sentence. '!
1. Guilt Phase
All individuals charged with a capital offense have the right to a trial by jury.’’’ However, a
defendant may waive his/her right to a jury trial provided s/he waives this right in writing and
receives the consent of the court and the prosecution. ''*
A capital jury is composed of twelve persons.’"° In selecting a jury for a capital trial, both the
prosecution and the defendant are entitled to eight peremptory challenges,'!° but the trial court
may, in its discretion, grant the defendant additional peremptory challenges.'!”
During the guilt phase, the prosecution must present witnesses and other evidence to support the
charged offense.'® The defendant may then present witnesses and other evidence in support of
his/her defense.'!° At the discretion of the court, the parties may present rebuttal evidence.!”°
Additionally, the parties are entitled to opening statements and closing arguments.'”’ At the
conclusion of this phase, the jury must decide whether the prosecution has proven beyond a
reasonable doubt that the defendant is guilty of the capital offense.”
The jury must render its verdict unanimously and in open court.'*? Upon request by either party,
the jury will be polled following the return of the verdict. If, at such time, the jury is no
longer unanimous in its decision, the court may not receive the verdict.'° If the Juy finds the
defendant guilty of the capital offense, the case will proceed to the sentencing phase.”
“2 Ky. REV. STAT. ANN. § 532.025 (1)(a)-(b) (West 2011).
U3 Ky, Const. § 7; Ky. REV. STAT. ANN. § 29A.270(1) (West 2011); Ky. R. CRIM. P. 9.26(1).
4 Ky. R. CRIM. P. 9.26(1).
“5 Ky. REV. STAT. ANN. § 29A.280(1) (West 2011).
"6 Ky. R. Crim. P. 9.40(1).
7" See, e.g., Bowling v. Commonwealth, 873 S.W.2d 175, 177-78 (Ky. 1993) (the trial court gave the defendant
“more than twice” the amount of peremptory strikes as required by rule); but see Epperson v. Commonwealth, 197
S.W.3d 46, 64-65 (Ky. 2006) (“The trial judge was not required to grant additional peremptory challenges
beyond the number authorized by RCr 9.40 . . . . [T]he decision on whether to grant additional peremptory
challenges is within the sound discretion of the trial judge, even in a death penalty case.”).
18 Ky. R. CRIM. P. 9.42(c).
119 Ky. R. Crim. P. 9.42(d).
120 Ky. R. CRIM. P. 9.42(e).
2 Ky. R. Crim. P. 9.42(a)-(b), (f). The Kentucky Rules permit defense counsel or the defendant to make an
opening statement. Ky. R. Crim. P. 9.42(d).
12 Ky. R. CRIM. P. 9.56(1).
23° Ky. R. CRIM. P. 9.82(1).
24 Ky. R. CRIM. P. 9.88.
125 Id.
U8 Ky. REV. STAT. ANN. § 532.025(1)(a)-(b) (West 2011); Ky. R. CRIM. P. 9.84(2).
19
2. Sentencing Phase'?”
For a defendant convicted of a capital offense, the sentencing phase determines the appropriate
penalty: death, life imprisonment without the benefit of probation or parole, life imprisonment
without the benefit of probation or parole for a minimum of twenty-five years, life imprisonment,
or imprisonment for a term of not less than twenty years and not more than fifty years.!7° At this
phase, both parties may present evidence in “extenuation, mitigation and aggravation of
punishment.””° As in the guilt phase, both parties are afforded opportunities to present
witnesses and other evidence, and to make opening statements and closing arguments.
Before a death sentence may be imposed, the prosecution must prove beyond a reasonable doubt
at least one aggravating circumstance, and the jury must unanimously agree on the presence of at
least one of these aggravating circumstances.'*! The statutorily enumerated aggravating
circumstances at KRS 532.025 are
(1) The offense of murder or kidnapping was committed by a person with a prior
record of conviction for a capital offense, or the offense of murder was
committed by a person who has a substantial history of serious assaultive
criminal convictions;
(2) The offense of murder or kidnapping was committed while the offender was
engaged in the commission of arson in the first degree, robbery in the first
degree, burglary in the first degree, rape in the first degree, or sodomy in the
first degree;
(3) The offender by his act of murder, armed robbery, or kidnapping knowingly
created a great risk of death to more than one (1) person in a public place by
means of a weapon of mass destruction, weapon, or other device which
would normally be hazardous to the lives of more than one (1) person;
(4) The offender committed the offense of murder for himself or another, for the
purpose of receiving money or any other thing of monetary value, or for
other profit;
(5) The offense of murder was committed by a person who was a prisoner and
the victim was a prison employee engaged at the time of the act in the
performance of his duties;
(6) The offender's act or acts of killing were intentional and resulted in multiple
deaths;
(7) The offender's act of killing was intentional and the victim was a state or
local public official or police officer, sheriff, or deputy sheriff engaged at the
time of the act in the lawful performance of his duties; and
127 The KRS refers to the second stage of a capital trial as the presentencing stage. Ky. REV. STAT. ANN. § 532.025
(West 2011) (emphasis added). The trial court will impose the sentencing decision of the trier of fact. Id.
"8. Ky. REV. STAT. ANN. § 532.030(1) (West 2011).
oe Ky, REV. STAT. ANN § 532.025(1)(a) (West 2011).
Id.
Sl Ky, Rev. STAT. ANN. §§ 532.025(2)-(3), 29A.280(3) (West 2011). This requirement also applies to sentences
of life imprisonment without the benefit of probation or parole, or life imprisonment without the benefit of probation
or parole for a minimum of twenty-five years. Ky. REV. STAT. ANN. § 532.025(3) (West 2011).
20
(8) The offender murdered the victim when an emergency protective order or a
domestic violence order was in effect, or when any other order designed to
protect the victim from the offender, such as an order issued as a condition of
a bond, conditional release, probation, parole, or pretrial diversion, was in
effect, !
Although the jury must find at least one of the statutory aggravating circumstances listed above
in order to sentence the defendant to death, Kentucky also permits jurors to consider aggravating
circumstances “permitted by law” but not enumerated in KRS 532.025.’
Prior to trial, the prosecution must notify the defense of the aggravating evidence it intends to
present at sentencing.'** While the KRS does not provide a time requirement for when notice
must be filed or what form that notice must take, the Kentucky Supreme Court has held that the
notice must be given with “reasonable time and opportunity for preparation.”'° While only
those aggravators which are noticed by the prosecution may be submitted to the jury, other
evidence of the defendant's character and circumstances of the crime may also be presented. '”°
The Kentucky Supreme Court has interpreted KRS 532.025 to “allow evidence of all relevant
and pertinent information so that the jury can make an informed decision conceming the
appropriate sentence in a particular case.”'°’ The jury also may consider any testimony
presented in regard to the character of the victim and the impact of the murder on any relevant
persons.’
The jury must also consider any mitigating circumstances authorized by law and any statutory
mitigating circumstances supported by the evidence.’ Kentucky’s eight statutory mitigating
circumstances are as follows:
(1) The defendant has no significant history of prior criminal activity;
(2) The capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance even though the
influence of extreme mental or emotional disturbance is not sufficient to
constitute a defense to the crime;
‘Ky. REV. STAT. ANN. § 532.025(2)(a) (West 2011).
133 Harris v. Commonwealth, 793 S.W.2d 802, 805 (Ky. 1990). In Harris the court found that the victim’s murder
was an acceptable aggravator for capital kidnapping, even though murder during the course of a kidnapping is not
listed as one of the statutorily enumerated aggravating circumstances in KRS 532.025. Id.
Ky. REV. STAT. ANN. § 532.025(1)(a) (West 2011).
185 Smith v. Commonwealth, 845 S.W.2d 534, 537 (Ky. 1993) (holding that six days notice of intent to seek the
death penalty was inadequate when the Commonwealth's A ttomey had previously “implied” that he would not seek
the death penalty); see also Commonwealth v. Maricle, 15 S.W.3d 376, 378-79 (Ky. 2000) (finding that the trial
court did not abuse its discretion in holding that forty-six days was inadequate notice of the Commonwealth's intent
to seek the death penalty).
18° Templeman v. Commonwealth, 785 S.W.2d 259, 260 (Ky. 1990) ("The jury should not sentence in a vacuum . .
57 Tg,
Ky. REV. STAT. ANN. § 421.520(1) (West 2011). Relevant persons include members of the victim's family.
Ky. REV. STAT. ANN. § 421.500(b) (West 2011).
18° Ky, REV. STAT. ANN. § 532.025(2) (West 2011); Stanford v. Commonwealth, 734 S.W.2d 781, 790 (Ky. 1987).
21
(3) The victim was a participant in the defendant’s criminal conduct or
consented to the criminal act;
(4) The capital offense was committed under circumstances which the defendant
believed to provide a moral justification or extenuation for his conduct even
though the circumstances which the defendant believed to provide a moral
justification or extenuation for his conduct are not sufficient to constitute a
defense to the crime;
(5) The defendant was an accomplice in a capital offense committed by another
person and his participation in the capital offense was relatively minor;
(6) The defendant acted under duress or under the domination of another person
even though the duress or the domination of another person is not sufficient
to constitute a defense to the crime;
(7) At the time of the capital offense, the capacity of the defendant to appreciate
the criminality of his conduct to the requirements of law was impaired as a
result of mental illness or retardation or intoxication even though the
impairment of the capacity of the defendant to appreciate the criminality of
his conduct or to conform the conduct to the requirements of law is
insufficient to constitute a defense to the crime; and
(8) The youth of the defendant at the time of the crime. '“°
If the jury determines an aggravating circumstance has been proven beyond a reasonable doubt,
and has considered all mitigating circumstances allowed by law, the jury must submit to the
court, in writing, the aggravating circumstance(s) it has found beyond a reasonable doubt along
with a sentence recommendation of death, life imprisonment without the benefit of probation or
parole, life imprisonment without the possibility of parole for a minimum of twenty-five years, a
sentence of life, or a sentence of twenty years, but not more than fifty years.'"! If the jury cannot
unanimously determine that an aggravating circumstance has been proven beyond a reasonable
doubt, a death sentence, a sentence of life without parole, or a sentence of life without parole for
twenty-five years may not be imposed.
In cases where the jury is unable to reach a decision on sentencing, the court may declare a
mistrial, and a new jury must be empanelled and a new penalty phase commenced.'** The trial
court may not impose the sentence if the jury does not reach a unanimous finding.'*
Whenever the death penalty is imposed for a capital offense, the trial court must prepare and
submit a report in the form of a questionnaire to the Kentucky Supreme Court.° The
questionnaire is created by the Supreme Court and is maintained by the Administrative Office of
the Courts. 14°
MO" Ky. REV. STAT. ANN. § 532.025(2)(b) (West 2011).
MI" Ky, REV. STAT. ANN. §§ 532.025(2)-(3), 532.030(4) (West 2011).
M2 Ky. REV. STAT. ANN. §§ 532.025(3) (West 2011).
43" Skaggs v. Commonwealth, 694 S.W.2d 672, 681 (Ky. 1985).
‘4 Td. (“In absence of findings by a jury where the jury is deadlocked, the trial judge has no authority to fix any
sentence.”).
MS’ Ky. REV. STAT. ANN. § 532.075 (West 2011).
46 See Ky. ADMIN. OFFICE OF THE COURTS, Form no. 085.
22
C. Motion for a New Trial, Direct Appeal, Rehearing, and Review by the U.S. Supreme Court
1. Motion for a New Trial '"’
Following a conviction for a capital offense and a sentence of death, the defendant may
challenge his/her conviction and death sentence by filing a motion for a new trial.'“" A motion
for a new trial must be made within five days of the verdict, unless the motion is based on
“newly discovered evidence,” in which case the motion must be made within one year after the
entry of the judgment.'“° The court may grant the defendant's motion for new trial, for “any
cause which prevented the defendant from having a fair trial, or if required in the interest of
justice.”'°° The court may also, on its own initiative, order a new trial for “any reason for which
it might have granted a new trial on motion of a defendant.”
2. Direct Appeal and Automatic Review
The defendant (or “appellant”) also may challenge his/her conviction and death sentence by
filing a direct appeal with the Kentucky Supreme Court. In order to pursue an appeal, the
appellant must file a notice of appeal with the trial court, within thirty days of the entry of his/her
judgment or within thirty days of the trial court’s entry of an order denying a new trial.'°°
The appellant’s brief must be filed within sixty days from the date the trial record is filed with
the appellate clerk, if the appellant is represented by the Public Advocate.’ The
Commonwealth, as the appellee, must file its brief within sixty days of the filing of the
appellant's brief, if the appellant is represented by the Public Advocate.’*° The appellant ma
file a reply brief within fifteen days from when the appellee's brief is filed or due to be filed.'”
In death penalty cases, the appellant and appellee, upon motion and for good cause, may increase
the page limit of initial briefs from fifty to 150 pages, and may increase the page limit of reply
briefs from ten to twenty-five pages.’*”
‘7 Pursuant to the Kentucky Rules of Civil Procedure, a death-sentenced defendant may also move for a judgment
notwithstanding verdict pursuant to Ky. R. Crv. P. 50.02, 50.03, 50.04; a motion for new trial pursuant to Ky. R.
Civ. P. 59.01; or a motion to vacate, alter, or amend judgment pursuant to Ky. R. Civ. P. 59.05. See Ky. R. CRIM. P.
13.04 (“The Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not superseded by or
inconsistent with these Rules of Criminal Procedure.”).
“8 Ky. R. CRIM. P. 10.02(2) (“Not later than ten (10) days after return of the verdict, the court on its own initiative
may order a new trial... .”).
Mo" Ky. R. CRIM. P. 10.06(1).
80 Ky. R. CRIM. P. 10.02(1).
®! Ky, R. CRIM. P. 10.02(2).
182 Ky. R. CRIM. P. 12.02.
3" Ky. R. CRIM. P. 12.04(1)-(3).
15 Ky. R. Civ. P. 76.12(2)(b)(1). If the appellant is represented by an attorney other than the Public Advocate, the
appellant's brief must be filed within sixty days from the date notification was given by the clerk of court that the
record was filed. Ky. R. CRIM. P. 76.12(2)(a)-(b).
155 Ky, R. CRIM. P. 76.12(2)(a)-(b). If the appellant is not represented by the Public Advocate, the appellee’s brief
must be filed within sixty days of the filing of the appellant’s brief or within sixty days of the date the record was
received by the clerk of the court, whichever is later. Ky. R. CRIM. P. 76.12(2)(b)(ii).
8 Ky. R. CRIM. P. 76.12(2)(a)-(b).
157 Ky. R. CRIM. P. 76.12(4)(b). Absent a motion for an increased page limit, initial briefs must be no more than
fifty pages and reply briefs may not exceed ten pages. Id.
23
Regardless of whether a direct appeal is taken, in all cases in which the death penalty is imposed,
the Kentucky Supreme Court is required to determine whether
(1) The sentence of death was imposed under the influence of passion, prejudice,
or any other arbitrary factor;
(2) The evidence supports the jury’s or judge's finding of statutory aggravating
circumstance(s); and
(3) The sentence of death is excessive or disproportionate to the penalty imposed
in similar cases, considering both the crime and the defendant. '°*
The Kentucky Supreme Court will review for proportionality only those cases in which the death
penalty was actually imposed.’ The Court will include in its analysis a reference to all similar
cases it considered when determining whether the sentence was disproportionate or excessive.!°°
The Court is not required to consider cases that could have been death penalty eligible but were
not prosecuted as capital cases or cases in which the offender received a sentence other than
death.'®! Following its review, the Court can correct any errors enumerated in the appeal and can
either affirm the sentence of death or set aside the sentence and remand to the sentencing court
for resentencing.
3. Rehearings and Reconsideration
Once an opinion on the direct appeal is issued, the Kentucky Supreme Court, on motion of the
adversely affected party, may grant a rehearing prior to the opinion becoming final.’ A petition
for a rehearing must be filed within twenty days after the date the opinion was issued and the
petition will be assigned to a different justice than the one who authored the opinion. An
answer to the petition must be made within twenty days after the petition was filed.’
158 Ky. REV. STAT. ANN. § 532.075(3) (West 2011). The Kentucky Supreme Court automatically reviews every
death sentence regardless of whether the defendant appeals the conviction or death sentence. Ky. REV. STAT. ANN.
§ 532.075 (West 2011).
159 Hunt v. Commonwealth, 304 S.W. 3d 15, 52 (Ky. 2009) (citing Fields v. Commonwealth, 274 S.W. 3d 375
(Ky. 2008)) (“Kentucky’s proportionality review is constitutional and comports with statutory requirements and the
federal Constitution.”).
160 Ky, REV. STAT. ANN. § 532.075(3)-(5) (West 2011).
‘8! Ky. REV. STAT. ANN. § 532.075(5) (West 2011).
12. Ky, Rev. STAT. ANN. § 532.075(2)-(5) (West 2011). On remand, the trial court will be provided with and must
consider (1) the arguments of counsel, (2) the records of similar cases referenced by the Supreme Court, and (3) the
extracts of all cases in which the death penalty was imposed since January 1, 1970. Ky. Rev. STAT. ANN. §
532.075(5)(b), (6)(a) (West 2011). But see Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010) (holding that a
defendant may not face the death penalty after remand if the original trier of fact did not sentence the defendant to
death).
163 Ky. R. Civ. P. 76.32(1)(a), 76.30(2)(a) (“An opinion of the Supreme Court becomes final on the 21* day after
the date of its rendition... .”). If the final disposition of the appeal was made by an order (as opposed to an
opinion), the adversely affected party must instead request reconsideration. Ky. R. Civ. P. 76.32(1)(a), 76.38(2). If
a petition for reconsideration is required, the adversely affected party must file the petition for reconsideration
within ten days of the entry and filing of the order. Ky. R. Civ. P. 76.38(2).
‘St Ky. R. Civ. P. 76.32(2), (6)(a).
' Ky. R. Civ. P. 76.32(2).
24
Petitions for rehearing are limited to the issues presented on appeal “[e]xcept in extraordinary
cases when justice demands it.”1®° The Court will grant a petition for rehearing if
(1) The court has overlooked a material fact in the record;
(2) The court has overlooked a controlling decision or statute; or
(3) The court has misconceived the issues presented on the appeal and the
applicable law.'®”
If the petition for rehearing is denied, the opinion immediately becomes final.‘
4. Discretionary Review by the U.S. Supreme Court
If the Kentucky Supreme Court affirms the conviction and death sentence on appeal, the
appellant has ninety days after the decision is entered to file a petition for a wnit of certiorari with
the U.S. Supreme Court, seeking discretionary review of the Kentucky Supreme Court’s
decision.’ If the U.S. Supreme Court reviews the case, it may affirm the conviction and
sentence, affirm the conviction and overturn the sentence, or overturn both the conviction and
sentence.'”° If the Court affirms the conviction and sentence or denies the petition for writ of
certiorari, and the appellant wishes to continue to challenge his/her conviction and sentence, s/he
may initiate post-conviction relief proceedings under Kentucky law.!”
D. State Post-Conviction Relief
While Kentucky provides several mechanisms for post-conviction relief,'”” most post-conviction
petitions are governed by Kentucky Rule of Criminal Procedure (RCr) 11.42. In order to apply
6 Ky. R. Civ. P. 76.32(1)(b).
167 Id.
‘8 Ky. R. Civ. P. 76.30(2)(b)-(c).
69 28 U.S.C. §§ 1257, 2101(c) (2011).
' 28 U.S.C. § 2106 (2011).
7) Ky. R. CRIM. P. 11.42.
1 See, e.g., Ky. R. CRIM. P. 11.42 (motion to vacate, set aside, or correct sentence). The Kentucky Constitution
also provides a right to habeas corpus. Ky. CONST. § 16 (right to habeas corpus); Ky. REV. STAT. ANN. §§ 419.020-
419.130 (West 2011) (implementing the constitutional guarantee of habeas corpus). A petition for habeas corpus,
however, is a summary procedure reserved for jurisdictional errors or judgments void ab initio. Commonwealth v.
Marcum, 873 S.W.2d 207, 211-12 (Ky. 1994). The habeas corpus petition requires prompt attention and relief, and
should not be used for procedural or substantive collateral attacks. Id. Furthermore, Kentucky Rule of Civil
Procedure 60.02 permits a grant of relief from a judgment or order if
(1) The claim is based on mistake, inadvertence, surprise or excusable neglect;
(2) The claim is founded on newly discovered evidence which by due diligence could not have
been discovered in time to file a motion for new trial;
(3) The claim is based on perjury or falsified evidence;
(4) The claim is based on a fraud affecting the proceedings, other than perjury or falsified
evidence;
(5) The judgment is void, or has been satisfied, released or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or
(6) The conviction and sentence should be vacated for any other reason of an extraordinary
nature justifying relief.
Ky. R. Civ. P. 60.02.
25
for state post-conviction relief, a death row inmate must file a motion for post-conviction review
in the circuit court where s/he was convicted and sentenced.'” The motion must be filed within
three years after the conviction becomes final.!* However, a motion filed after this specified
period may still be considered when
(1) The facts upon which the claim is predicated were unknown to the movant
and could not have been ascertained by the exercise of due diligence; or
(2) The fundamental constitutional right asserted was not established within the
specified period and has been held to apply retroactively. !”
The RCr 11.42 motion must be signed and verified by the defendant and must also state all
grounds and factual support for granting post-conviction relief.'”” The Commonwealth must
answer a collateral challenge within twenty days after the mailing of the notice of filing.’””
Claims that could have been raised or that were disposed of on direct appeal will not be
considered during post-conviction review” unless “substantial injustice might otherwise result
and [the] former [direct appeal] decision is clearly and palpably erroneous.”
After receiving the Commonwealth's answer, the court will grant an evidentiary hearing on the
RCr 11.42 motion if there is a “material issue of fact that cannot be determined on the face of the
record.”"®° If a hearing is granted, and the defendant makes a specific request for counsel in
writing, the court will make a determination of the defendant's indigency.'*" If the defendant is
indigent, then counsel must be appointed for the remainder of the proceeding, including
appeal.'®
After the hearing, the court will issue “findings determinative of the material issues of fact” and
enter a final judgment.’ If the court determines that there has been a violation of the
petitioner's rights warranting relief,'™ the court must vacate the judgment and discharge the
petitioner, resentence the petitioner, grant the petitioner a new trial, or correct the sentence.
"3" Ky, R. CRIM. P. 11.42(1).
174 Ky. R. CRIM. P. 11.42(10).
15 Td. If the motion is filed under one of the exceptions, it must be filed within three years of the event allowing
the exception. Id. The filing of the petition automatically stays the execution. Ky. R. CRIM. P. 11.42(8), 12.04(4).
The petition must be filed with the clerk of the court where the petitioner was sentenced. Ky. R. CRIM. P. 11.42(1),
(9).
Ky. R. Crim. P. 11.42(2) (“Failure to comply with this section shall warrant a summary dismissal of the
motion.”).
"7 Ky, R. CRIM. P. 11.42(4).
8 Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009).
19 Gossett v. Commonwealth, 441 S.W.2d 117, 118 (Ky. 1969).
"80 Ky. R. CRIM. P. 11.42(5).
181 Id.
182 Id.
‘8 Ky. R. CRIM. P. 11.42(6).
184 Bowling v. Commonwealth, 981 S.W.2d 545, 552 (Ky. 1998).
‘Ky. R. CRIM. P. 11.42(6).
26
Both the petitioner and the Commonwealth may appeal the final ruling on the post-conviction
challenge directly to the Kentucky Supreme Court."° The Kentucky Supreme Court will not
disturb the trial court’s findings of fact unless such findings were clearly erroneous.'®”
Conclusions of law will be reviewed de novo.’
E. Federal Habeas Corpus
A Kentucky death row inmate may also challenge the constitutionality of his/her conviction and
death sentence by filing a petition for a writ of habeas corpus with the appropriate federal district
court.'®° Kentucky has two federal judicial districts: Eastem and Westem.'®’ The petitioner
may be entitled to appointed counsel to prepare his/her petition if s/he “is or becomes financially
unable to obtain adequate representation or investigative, expert, or other reasonably necessary
services.”'*' If a petitioner files a federal habeas corpus petition, the execution is again
automatically stayed.!°
Prior to filing a petition for a writ of habeas corpus, the petitioner must have raised all relevant
federal claims in state court, as the failure to exhaust all state remedies available on direct appeal
and state post-conviction review is grounds to dismiss the petition.
The petition must be filed in the federal district court in the district in which the petitioner is in
custody or in the district where the petitioner was convicted and sentenced.’ The deadline for
filing the petition is one year'® from the date on which (1) the judgment became final; (2) the
State impediment that prevented the petitioner from filing was removed; (3) the U.S. Supreme
Court recognized a new right and made it retroactively applicable to cases on collateral review;
or (4) the underlying facts of the claim or claims could have been discovered through due
186 Ky. R. CRIM. P. 11.42(7). See also Ky. R. CRIM. P. 12.02 (“an appeal from a judgment imposing a sentence of
death . . . shall be taken directly to the Supreme Court”).
187 Commonwealth v. Bussell, 226 S.W.3d 96, 99 (Ky. 2007) (stating that “unless the trial court's findings of fact
are clearly erroneous, those findings must stand”).
188 Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. Ct. App. 2002) (citing Adcock v. Commonwealth, 967
S.W.2d 6, 8 (Ky. 1998) (“we must then conduct a de novo review of the trial court's application of the law to those
facts to determine whether its decision is correct as a matter of law”)).
189 See infra note 196-97 and accompanying text.
1 28 U.S.C. § 97 (2011).
'S! 18 USC § 3599 (2011). See also McFarland v. Scott, 512 U.S. 849, 854 (1994) (internal citations omitted).
"2 28 U.S.C. § 2262(a)-(b) (2011).
18398 U.S.C. § 2254(b)(1)-(2) (2011). Under certain circumstances, a federal district court can stay a petition that
raises both exhausted and unexhausted constitutional violations to allow the petitioner an opportunity to present his
unexhausted claims in state court. Rhines v. Weber, 544 U.S. 269, 269 (2005).
19 28 U.S.C. §§ 2254, 2241(d) (2011); RULE 3(a) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DisT. CT.;
Fep. R. App. P. 22(a).
195 28 U.S.C. § 2244(d)(1) (2011). In states that have “opted-in” to the Special Habeas Corpus Procedures in
Capital Cases found in 28 U.S.C. §§ 2261-2266, the deadline for federal habeas corpus petitions is 180 days after
the conviction and death sentence have been affirmed on direct review or the time allowed for seeking such review
has expired. See 28 U.S.C. § 2263(a) (2011). However, capital jurisdictions must meet certain criteria in order to
opt-in to the expedited filing deadline permitted by the Special Habeas Corpus Procedures in Capital Cases. See 28
U.S.C. § 2261 (2011). As of the date of this report, the Commonwealth of Kentucky has not opted-in to the Special
Habeas Corpus Procedures in Capital Cases. Additionally, “opt-in” criteria are currently under revision by the U.S.
Attomey General. See 28 U.S.C. §§ 2261-2265 (2011).
27
diligence.’ The one-year time limitation may be tolled if the petitioner is pursuing a properly
filed application for state post-conviction relief or other collateral review. !°”
In a petition for a writ of habeas corpus, the petitioner must identify and raise all possible
grounds of relief and identify the facts supporting each ground.'®* If the petitioner challenges a
state court’s determination of a factual issue, the petitioner has the burden of rebutting, by clear
and convincing evidence, the presumption that state court factual determinations are correct.
If the petitioner raises a claim that the state court decided on the merits, the petitioner must
establish that the state court’s decision of the claim was “contrary to, or involved an
unreasonable application of, clearly established Federal law as determined by the Supreme Court
of the United States,” or that it was based on an “unreasonable determination of the facts in light
of the evidence presented in State court proceeding.””””
Once the petition is filed, a district court reviews it to determine whether, based on the face of
the petition, the petitioner is entitled to relief.“°' If the court finds that the petitioner is not
entitled to relief, the court may summarily dismiss the petition.” In contrast, if the court finds
that the petitioner may be entitled to federal habeas corpus relief, the court will order the
respondent to file an answer replying to the allegations contained in the petition.“ In addition
to the answer, the respondent must file all portions of the state court transcripts it deems relevant
to the petition.” The court, on its own motion or on the motion of the petitioner, may order that
additional portions of the state court transcripts be made part of the record.”
Additionally, either party may submit a request for discovery.” The court may grant the
request if the requesting party establishes “good cause.””"’ The court also may direct, or the
parties may request, expansion of the record by providing additional evidence relevant to the
merits of the petition.” Such evidence may include letters predating the filing of the petition,
documents, exhibits, answers to written interrogatories, and affidavits. 08
Upon review of the state court proceedings and the evidence presented, the district court must
determine whether an evidentiary hearing is required.”!° The court may not hold an evidentiary
hearing on a claim on which a petitioner failed to develop the underlying facts in the state court
proceedings unless the claim relies on
186 28 U.S.C. § 2244(d)(1) (2011).
197 98 U.S.C. § 2244(d)(2) (2011).
198 RULE 2(c) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. Dist. CT.
18 28 U.S.C. § 2254(e)(1) (2011).
200 28 U.S.C. § 2254(d)(1)-(2) (2011).
aon RULE 4 OF THE RULES GOVERNING § 2254 CASES IN THE U.S. Dist. Cr.
Id.
203 RULES 4-5 OF THE RULES GOVERNING § 2254 CASES IN THE U.S. Dist. Cr.
aoe RULE 5 OF THE RULES GOVERNING § 2254 CASES IN THE U.S. Dist. CT.
» Id.
os RULE 6(a) OF THE RULES GOVERNING § 2254 CASES IN THE US. Dist. CT.
Id.
208 RULE 7(a) OF THE RULES GOVERNING § 2254 CASES INTHE U.S. Dist. Cr.
209 RULE 7(b) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. DisT. CT.
210 RULE 8(a) OF THE RULES GOVERNING § 2254 CASES INTHE U.S. Dist. Cr.
28
(1) A new rule of constitutional law, made retroactive to cases on collateral
review by the [U.S] Supreme Court, that was previously unavailable; or
(2) That the factual predicate could not have been previously discovered through
the exercise of due diligence; and
(3) The facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for the constitutional error no reasonable
factfinder would have found the applicant guilty of the underlying offense.”"’
If the court decides that an evidentiary hearing is unnecessary, the court will make a decision on
the petition without additional evidence.”!? If an evidentiary hearing is required, the court
should conduct the hearing as promptly as possible.”/? During the evidentiary hearing, the court
will resolve any factual discrepancies that are material to the petitioner’s claims.”"* Based on the
evidence presented, the court may grant the petition, order a new trial, order a new penalty phase,
order a new direct appeal, or deny relief.
In order to appeal the district court’s decision, the applicant for the appeal must file a notice of
appeal with the district court within thirty days after the judgment.”"° If the petitioner seeks to
appeal, s/he must also request a “certificate of appealability” from either a district or circuit
court.”!° A judge may issue a certificate of appealability only for those claims on which the
petitioner has made a substantial showing of the denial of a constitutional right.”!’ If the
certificate of appealability is granted, the appeal will proceed to the U.S. Court of Appeals for
the Sixth Circuit.2!®
In rendering its decision, the Sixth Circuit may consider the record from the federal district court,
the briefs submitted by the parties, and the oral arguments,”!” Based on the evidence, the Sixth
Circuit may order a new appeal, an evidentiary hearing by the federal district court, or a new
guilt or sentencing phase in the state trial court.
The party adversely affected by the Sixth Circuit’s decision may file a petition for a writ of
certiorari to the U.S. Supreme Court.”° The Court may either grant or deny review of the
petition.”” If the Court grants review of the petition it may deny the petitioner relief or order a
new trial, a new sentencing hearing, or other proceedings in the lower federal courts or the state
court.
211 28 U.S.C. § 2254(e)(2) (2011) (emphasis added); Williams v. Taylor, 529 U.S. 420, 432 (2000) (“Under the
opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack
of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel.”).
212 RULE 8(b) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. Dist. Cr.
213 RULE 8(c) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. Dist. Cr.
214 RULE 8(b) OF THE RULES GOVERNING § 2254 CASES IN THE U.S. Dist. CT.
215 Fep. R. App. P. 4(b)(1)(B).
26 28 U.S.C. § 2253(c)(1) (2011); FED. R. App. P. 22(b)(3).
217 28 U.S.C. § 2253(c)(2) (2011).
218 28 U.S.C. § 2253(c)(1)-(2) (2011). Denial of issuance of a certificate of appealability may be reviewed by the
U.S. Supreme Court. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 348 (2003) (holding that a certificate of
appealability should have been ordered by the court of appeals in petitioner’s case).
219" See FED. R. APP. P. 10, 28, 31, 34.
28 U.S.C. § 1254(1) (2011).
*2 Ky. Sup. Ct. Rule (SCR) 10 (2010).
29
If the petitioner wishes to file a second or successive habeas corpus petition with the federal
district court, s/he must submit a motion to the Sixth Circuit Court of Appeals requesting an
order authorizing the petitioner to file and the district court to consider the petition.” A three-
judge panel of the Sixth Circuit must consider the motion” and specifically assess whether the
petition makes a prima facie showing that the claim presented in the second or successive
petition was not previously raised and that the new claim
(1) Relies on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable; or
(2) The factual predicate of the claim could not have been discovered previously
through the exercise of due diligence; and
(3) The facts underlying the claim, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.””*
Claims of actual innocence must meet the requirements of the latter provision.” Any second or
successive petition that presents a claim raised in a prior petition will be dismissed.””°
If the Sixth Circuit grants the motion, then the second or successive motion will proceed through
the same process as the initial petition. If the Circuit Court denies the motion for authorization to
file a second or successive petition, the petitioner may not seek further appellate review of the
decision.”””
F. Clemency
A death row inmate may seek final review of his/her conviction and sentence by filing a petition
for clemency.”“2 The power to grant clemency rests exclusively with the Governor.”
Specifically, the Governor has the authority to grant reprieves, commutations, pardons and
exonerations for all criminal convictions except impeachment." In reaching a decision on
clemency, the Govemor may request the advice of the Kentucky Parole Board, which, upon the
Governor's request, must investigate and issue a report on clemency.” Any recommendation
by the Parole Board is nonbinding on the Governor.” A fter making a clemency determination,
2 28 U.S.C. § 2244(b)(3)(A) (2011).
3 28 U.S.C. § 2244(b)(3)(B) (2011).
4 28 U.S.C. § 2244(b)(2)(A)-(B) (2011).
225 28 U.S.C. § 2244(b)(2)(B) (2011); Ross v. Berghuis, 417 F.3d 552, 556-57 n.4 (6th Cir. 2005); see also Habeas
Relief for State Prisoners, 91 GEO. LJ. 817, 843-45 n.2617 (2003).
© 28 U.S.C. § 2244(b)(1) (2011).
27 28 U.S.C. § 2244(b)(3)(E) (2011).
228 McQueen v. Patton, 948 S.W.2d 418, 419 (1997) (interpreting Ky. Const. § 77 to require the inmate to file an
application of clemency with the Govemor).
2" Ky. Const. § 77.
230 Id.
3! Ky. REV. STAT. ANN. § 439.450 (West 2011).
Id.; see also Ky. Const. § 77.
30
the Governor must provide the death row inmate with a statement explaining the reasons for the
decision.”
Two Kentucky death row inmates have been granted clemency since the death penalty was
reinstated in 1976.74 In 2003, Kevin Stanford was granted a sentence commutation to life in
prison by Governor Paul Patton because Stanford was only seventeen at the time of the
offense.“ Governor Emie Fletcher commuted the death sentence of Jeffrey Leonard to life
without parole in 2007, explaining the reason for clemency as the exceptionally inadequate
representation Leonard had at trial.”
G. Execution
At the conclusion of an unsuccessful challenge to the prisoner's conviction and sentence, the
Kentucky Supreme Court will issue a mandate setting the execution date as the fifth Friday
following the date of the mandate.”*’ If the execution is stayed for any reason and judgment has
not been carried out on the day appointed by the Court, the Governor may issue a warrant fixing
the date of execution to be obeyed by the warden of the Kentucky State Penitentiary.** In
practice, after the inmate has exhausted all available appeals, or the time for filing such appeals
has elapsed, the A ttomey General will request that the Governor issue a warrant for execution.”**
However, the Kentucky Governor's “policy conceming the signing of death warrants is strictly
an executive function” and s/he may issue a death warrant before the statute of limitations placed
on filing such an appeal elapses.”“°
233 McQueen, 948 S.W.2d at 419 (interpreting Ky. Const. § 77 to require the Govemor to file a statement
explaining the reasons for his/her decision).
234 See Dennis W. Archer, Statement Re: The Decision to Commute the Death Penalty of Kevin Stanford, AM. BAR
Ass’N, Dec. 8, 2003, http://www.abanow.org/2003/12/statement-re-the-decision-to-commute-the-death-penalty-of-
kevin-stanford (last visited June 10, 2011); Fletcher Pardons 83 People, WxytT.com, Dec. 11, 2007,
http://www.wkyt.com/home/headlines/12340711.html (last visited June 10, 2011).
235° Dennis, W. Archer, Statement Re: The Decision to Commute the Death Penalty of Kevin Stanford, AM. BAR
Ass’N, Dec. 8, 2003, http://www.abanow.org/2003/12/statement-re-the-decision-to-commute-the-death-penalty-of-
kevin-stanford (last visited June 10, 2011).
236 Fletcher Pardons 83 People, WkYT, http://www.wkyt.com/home/headlines/12340711.html (last visited June
10, 2011).
237 Ky. REV. STAT. ANN. § 431.218 (West 2011). See also Ky. Exec. Order No. 0722 (Aug. 25, 2010).
238 Ky. REV. STAT. ANN. §§ 431.218, 431.240 (West 2011); Ky. Const. § 81.
289 _R.G. Dunlop, Beshear Asked to Halt Executions for Study of Kentucky’s Death Penalty System, CouRIER-J.
(Louisville, Ky.), Nov. 24, 2009.
240 See, e.g., Bowling v. Commonwealth, 926S.W.2d 667, 668-69 (Ky. 1996). In Bowling, the Kentucky Supreme
Court described the disparate treatment of death warrants by Kentucky Governors as follows:
Former govemors followed a policy wherein ninety (90) days would be allowed for defense
counsel to commence the post-conviction relief process when the United States Supreme Court
had denied a petition for writ of certiorari in the direct appeal. The present Governor has stated
that the “90 day” policy is not the policy of his administration. The new policy is to give defense
counsel up to three (3) days from the date of receipt of a death warrant request to respond in
writing. The Governor will then review the file consistent with his policy to set execution dates
immediately in death penalty cases. There should be no misunderstanding as to the effect of the
three-year provision in RCr 11.42(10). This provision serves only as an outer time limit on the
bringing of such actions and in no way affects the prerogatives of the Governor with respect to
enforcement of criminal judgments.
Id. at 669.
31
The warden of the institution where the death row inmate is held must ensure the death sentence
is carried out properly.’ For defendants sentenced to death on or after March 31, 1998, lethal
injection is the only legal method of execution.” If, however, the death row inmate was
sentenced prior to March 31, 1998, s/he may opt to be executed by electrocution."
As of March 24, 2011, no executions could take place in Kentucky due to a Franklin Circuit
Court’s issuance of an injunction against implementation of a death sentence on death row
inmate Gregory Wilson, citing “substantial legal questions regarding the validity” of the
Commonwealth’ s administrative procedures governing execution.”
241 Ky, REV. STAT ANN. § 431.240 (2011).
22 Ky. REV. STAT ANN. § 431.220(1) (2011).
28 Ky. REV. STAT ANN. § 431.220(1)(b) (2011).
See Commonwealth ex rel. Conway v. Shepherd, 336 S.W.3d 98 (Ky. 2011) (finding that the Circuit Court's
grant of a temporary injunction prohibiting the Commonwealth from executing a death warrant did not constitute an
abuse of discretion); Bowling v. Ky. Dep't of Corr., No. 06-CI-574, slip op. at 2 (Franklin Cir. Ct., Sept. 10, 2010).
32
CHAPTER TWO
COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER TYPES OF
EVIDENCE
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
Deoxyribonucleic acid (DNA) testing is a useful law enforcement tool that can help to establish
guilt as well as innocence. In 2000, the American Bar Association (ABA) adopted a resolution
urging federal, state, local, and territorial jurisdictions to ensure that all biological evidence
collected during the investigation of a criminal case is preserved and made available to
defendants and convicted persons seeking to establish their innocence.! Since then, almost all
fifty states have adopted laws conceming post-conviction DNA testing.” However, the standards
for preserving biological evidence and seeking and obtaining post-conviction DNA testing vary
widely among these jurisdictions.
In response to the varied standards employed by the states, as well as reports of errors and
misconduct in public and private DNA testing facilities, the ABA adopted the black letter ABA
Criminal Justice Standards on DNA Evidence in 2006.2 The standards provide a detailed
procedure for procurement, testing, utilization, and preservation of and entitlement to biological
evidence. When a defendant has been convicted of a murder, rape, or other serious offense, these
standards require that any available biological material be retained in a manner that will preserve
the DNA evidence for as long as the defendant remains incarcerated. At the post-conviction
stage, the standards permit a person convicted of a serious crime to request testing or retesting of
biological evidence, as long as the person meets certain pleading criteria. Once the testing is
complete, the standards entitle the petitioner to a hearing to determine the available remedies
based upon the test results. If the person is indigent and files for DNA testing, counsel should be
appointed.
Inmates seeking to prove their innocence through DNA testing often are unable to do so because
states have failed to adequately preserve material evidence. Written procedures for collecting,
preserving, and safeguarding biological evidence should be established by every law
enforcement agency, made available to all personnel, and designed to ensure compliance with
the law.’ The procedures should be regularly updated as new or improved techniques and
methods are developed. The procedures should impose professional standards on all state and
' See ABA, RECOMMENDATION 115, 2000 Ann. Mtg. (adopted July 10-11, 2000), available at
http://www.abanet.org/moratorium/policy/2000s/2000_AM_115.pdf.
2 See Post-Conviction DNA Motions, NAT'L CONFERENCE OF STATE LEGISLATURES,
http://www.ncsl.org/default.aspx?tabid=12731 (last visited Aug. 3, 2011); see also Post-Conviction DNA Testing,
INNOCENCE PROJECT, http://www.innocenceproject.org/Content/304. php (last visited Aug. 3, 2011).
3 See ABA, ABA STANDARDS FOR CRIMINAL JUSTICE, DNA EVIDENCE 12 (3d ed. 2007) (Standard 16-6.1(a)-
(b)), available at
http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/dna_evidence.authcheckdam.
df.
p See 1 ABA, ABA STANDARDS FOR CRIMINAL JUSTICE, URBAN POLICE FUNCTION (2d ed. 1979) (Standard 1-4.3)
(“Police discretion can best be structured and controlled through the process of administrative rule making, by police
agencies.”); Id. (Standard 1-5.1) (police should be “made fully accountable” to their supervisors and to the public for
their actions).
33
local officials responsible for handling or testing biological evidence, and the procedures should
be enforceable through the agency’s disciplinary process.”
Training should include information about the possibility that the loss or compromise of
evidence may lead to an inaccurate result. It also should acquaint law enforcement officers with
actual cases where illegal, unethical, or unprofessional behavior led to the arrest, prosecution, or
conviction of an innocent person.
See id. (Standard 1-5.3(a)) (identifying “[c]urrent methods of review and control of police activities”).
34
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
In 2002, the Kentucky General Assembly enacted legislation to require, in limited circumstances,
the preservation of evidence that could be subject to deoxyribonucleic acid (DNA)° testing and
to provide mechanisms for individuals (death row inmates) to challenge their convictions and
sentences by filing a post-conviction petition for DNA testing.’
A. Collection and Preservation of DNA Evidence
1. Collection of DNA Evidence
Commonwealth and local law enforcement agencies in Kentucky are responsible for identifying,
collecting, and transporting all forensic evidence, including biological evidence, in a criminal
investigation to the Kentucky State Police Forensic Laboratory (KSP Laboratory) for DNA
testing.” KSP Laboratory performs forensic analysis testing for each of the Commonwealth's
“state, federal, county, and municipal law enforcement agencies and [for] the Public Defender’s
Office in connection with official investigations in criminal cases.” KSP Laboratory staff also
provide technical assistance over the telephone to the Commonwealth’s law enforcement
agencies on evidence collection and preservation issues. '°
2. Kentucky Legal Authority on Preservation and Destruction of Evidence
a. Pre-trial Preservation of Evidence
All evidence “gathered by law enforcement, prosecutorial, or defense authorities[,] that may be
subject to [DNA] testing and analysis[,] in order to confirm the guilt or innocence of a criminal
defendant,” "! may be disposed of or destroyed, prior to trial, under the following conditions:
8 “DNA is the ‘genetic material present in the nucleus of cells in all living organisms,’ and it stores each
individual's inherited traits.”. Taylor v. Commonwealth, 175 S.W.3d 68, 76 (Ky. 2005) (citing NAT'L COMM’N ON
THE FUTURE OF DNA EVIDENCE, U.S. Dep’T OF JUSTICE, Pub. No. 177626, Post-conviction DNA Testing:
Recommendations for Handling Requests 21 (1999)).
7 Ky. REV. STAT. ANN. §§ 422.285 (effective July 15, 2002) (post-conviction DNA testing in capital cases),
422.287 (effective July 15, 2002) (DNA testing when “a person is being tried for a capital offense”), 524.140 (West
2011) (effective July 15, 2002) (destruction of evidence that may be subject to DNA testing). These statutes, along
with KRS 17.176, are commonly referred to as the Kentucky Innocence Protection Statute. H.B. 4, 2002 Gen.
Assemb., Reg. Sess. (Ky. 2002) (effective July 15, 2002). According to the Kentucky Supreme Court, “KRS
422.285 was part of a wave of similar statutes in other states passed in response to a number of death-row inmates
who were released from custody as a result of being exonerated by DNA testing nationwide.” Taylor, 175 S.W.3d at
76.
8 KSP Las., PHYSICAL EVIDENCE COLLECTION GUIDE 5 (rev. effective Apr. 16, 2010), available at
http://www .kentuckystatepolice.org/for_lab/download/physical_evidence_collection_guide.pdf [hereinafter KSP
EVIDENCE GUIDE]; Sabrina Walsh, CSI: Kentucky, Ky. Law ENFORCEMENT 26 (Summer 2007) (explaining that
“[d]etectives interview suspects, secure a crime scene, and remove evidence for analysis at one of Kentucky’s six
labs”).
9 KSP EVIDENCE GUIDE, supra note 8, at 5.
10 Td. at 2.
ll Ky. REV. STAT. ANN. § 524.140(2) (West 2011) (noting that the evidence must be able to confirm the guilt or
innocence of a criminal defendant). The statute applies to defendants charged with a capital offense, class A, B, or
C felony, or class D felony under KRS Chapter 510. Ky. REV. STAT. ANN. § 524.140(1)(a) (West 2011).
35
(a) The prosecution has determined that the defendant will not be tried for the
criminal offense;
(b) The prosecution has made a motion before the court in which the case would
have been tried to destroy the evidence; and
(c) The court has, following an adversarial proceeding in which the prosecution
and the defendant were heard, authorized the destruction of the evidence by
court order.’
b. Post-trial Preservation of Evidence
At the conclusion of a criminal trial, ’® evidence may be disposed of or destroyed if:
(a) The evidence, together with DNA evidence testing and analysis results, has
been presented at the trial, and the defendant has been found guilty, pled
guilty, or entered an Alford plea at the trial;
(b) The evidence was not introduced at the trial, or if introduced at the trial[,]
was not the subject of DNA testing and analysis, and the defendant has been
found guilty, pled guilty, or entered an Alford plea at the trial, and the trial
court has ordered the destruction of the evidence after an adversarial hearing
conducted upon motion of either the prosecution or the defendant;
(c) The trial resulted in the defendant being found not guilty or the charges were
dismissed after jeopardy attached, whether or not the evidence was
introduced at the trial or was subject to DNA testing and analysis or not, and
the trial court ordered the destruction of the evidence after an adversarial
hearing conducted upon motion of either the prosecution or the defendant; or
(d) The trial resulted in the dismissal of charges against the defendant, and the
defendant may be subject to retrial, in which event the evidence shall be
retained until after the retrial, which shall be considered a new trial for
purposes of this section.’
Either before or after a capital trial, “[t]he burden of proof for a motion to destroy evidence that
may be subject to DNA testing and analysis shall be upon the party making the motion, and the
court may permit the destruction of the evidence under this section upon good cause shown
favoring its destruction.”'° The destruction of evidence in violation of the circumstances
described above is a Class D felony.’°
© Ky. Rev. STAT. ANN. § 524.140(2) (West 2011).
15 The Commonwealth defines “following trial” as either when the “first appeal authorized by the Constitution of
Kentucky in a criminal case has been decided” or when the “time for the first appeal authorized by the Constitution
of Kentucky in a criminal case has lapsed without an appeal having been filed.” Ky. REV. STAT. ANN. §
524.140(1)(b) (West 2011).
Ky. REV. STAT. ANN. § 524.140(3) (West 2011).
8 Ky. REV. STAT. ANN. § 524.140(4) (West 2011).
16 Ky. Rev. STAT. ANN. §§ 524.140(6) (“Destruction of evidence in violation of this section shall be a violation of
KRS 524.100.”), 524.100(2) (West 2011) (“Tampering with physical evidence is a Class D felony.”). In addition,
KRS 422.285(6) permits a post-conviction court to order “appropriate sanctions, including criminal contempt” if
36
c. Preservation of Evidence During Testing (Consumption of Evidence)
The Kentucky General Assembly, acknowledging that “DNA evidence laboratory testing and
analysis procedure consumes and destroys a portion of the evidence or may destroy all of the
evidence if the sample is small,” adopted statutory safeguards to ensure KSP Laboratory
preserves as much material subject to DNA testing as possible.’’ Prior to testing, the laboratory
must notify all parties if it “knows or reasonably believes that so much of the biological material
or evidence may be consumed or destroyed in the testing and analysis that an insufficient sample
will remain for independent testing.” '®
d. Preservation of Evidence for Post-Conviction Testing
If a death row inmate files a petition for post-conviction DNA testing, the Commonwealth's
“appropriate governmental entity” must preserve “any biological materials secured in connection
with a criminal case for the period of time that any person remains incarcerated in connection
with that case.”'® An “appropriate governmental entity” has “the discretion to determine how
the evidence is retained . . . provided that the evidence is retained in a condition suitable for
DNA testing and analysis. 0 KSP Laboratory policy requires the retum of evidence to the
submitting agency or to the court after testing is completed.”
3. Training and Accreditation Requirements on Collection and Preservation of Evidence
All police departments, training academies, and sheriff offices in Kentucky accredited by the
Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA) or the Kentucky
Association of Chiefs of Police Accreditation Program (KACP) are required to adopt written
procedures for the collection, identification, preservation, and transmittal of evidence to KSP
Laboratory.” Three of KSP Laboratory’s six laboratories are accredited by the American
evidence is “intentionally destroyed after the court orders its preservation.” Ky. REV. STAT. ANN. § 422.285(6)
(West 2011).
"Ky. REV. STAT. ANN. § 524.140(5) (West 2011).
‘8 Ky. REV. STAT. ANN. § 524.140(5)(c) (West 2011).
19 Ky. REV. STAT. ANN. § 524.140(7) (West 2011) (noting that the requirement to maintain biological material for
the period of time that the person remains incarcerated is “subject to KRS 422.285(6)”). KRS 422.285(6) stipulates
that, upon a filing for post-conviction DNA testing, the Commonwealth must “preserve during the pendency of the
proceeding all evidence in the state's possession or control that could be subjected to DNA testing and analysis.”
Ky. Rev. STAT. ANN. § 422.285(6) (West 2011). Furthermore, “[i]f the defendant is convicted of any offense for
which DNA test and analysis results are required to be maintained by law, the DNA test and analysis results
obtained pursuant to this section shall be utilized for that purpose, whether or not the test and analysis results were
introduced in the case.” Ky. REV. STAT. ANN, § 422.287(5) (West 2011).
20 Ky. REV. STAT. ANN. § 524.140(7) (West 2011). The Commonwealth “is the custodian of evidence.” Bowling
v. Commonwealth, No. 2008-SC-000901-MR, 2010 WL 3722283, at *5 (Ky. Sept. 23, 2010).
21 KSP FORENSIC LAB., QUALITY ASSURANCE MANUAL 83 (rev. effective Oct. 25, 2010) (on file with author).
22 Ky. ASS’N OF CHIEFS OF POLICE ACCREDITATION PROGRAM, 2009 STANDARDS 53 (Apr. 20, 2009), available at
http://www.kypolicechiefs.org/joomla/attachments/095_STANDARDS_2009 April_20_.doc (Chapter 24;
Collection and Preservation of Evidence, 27.1 Evidentiary items) (hereinafter KACP STANDARDS]; COMM’N ON
ACCREDITATION OF LAW ENFORCEMENT AGENCIES, STANDARDS FOR LAW ENFORCEMENT AGENCIES, THE
STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY ACCREDITATION PROGRAM 42.2.1, 83.2.1 (5th ed. 2009)
37
Society of Crime Lab Directors Laboratory Accreditation Board (ASCLD/LAB), which requires
accredited laboratories to adopt specific policies on the handling, testing, and preservation of
evidence, including DNA evidence, and requires specific training of all technicians performing
testing.” For example, KSP Laboratory’s Physical Evidence Collection Guide (KSP Evidence
Guide), available on the KSP website and applicable to all Kentucky law enforcement agencies,
includes specific procedures and protocols for the collection, packaging, transportation, short-
term preservation, and delivery of evidence, including DNA evidence, to KSP Laboratory.”*
ASCLD/LAB also requires laboratory personnel to maintain a “chain of custody record with all
necessary data which provides for complete tracking of all evidence” and a secure area for
overnight and/or long-term storage of evidence.” All evidence must be marked for
identification, stored under proper seal, and be protected from loss, contamination, and/or
deleterious change.”° For more information on the accreditation of law enforcement agencies
and forensic laboratories as well as on the training provided to law enforcement and forensic
personnel, see Chapter Three on Law Enforcement and Chapter Four on Crime Laboratories and
Medical Examiners.
All Kentucky law enforcement officers also are required to complete a training course which
includes hours of instruction on crime scene evidence collection and preservation.”’
B. Testing of DNA Evidence
In Kentucky, capital defendants and death row inmates may request DNA testing and analysis on
evidence that was not previously tested or not subjected to the testing now requested.”® All DNA
testing performed by KSP Laboratory is conducted at the Central Forensic Laboratory in
[hereinafter CALEA STANDARDS]. CALEA also requires agencies to have written procedures on avoiding
contamination of physical evidence. CALEA STANDARDS, supra at 83-1 (Standard 83.2.1).
23 Am. Soc’y OF CRIME LAB. DIRECTORS, LABORATORY ACCREDITATION BOARD 2008 MANUAL 14, 18-19 (2008)
(on file with author) [hereinafter ASCLD/LAB-LEGacy 2008 MANUAL]; ASCLD/LAB Accredited Laboratories, AM.
Soc’y OF CRIME LaB. DiRECTORS/LAB. ACCREDITATION BD., http://www.ascld-lab.org/accreditedlabs.html#ky (last
visited Aug. 3, 2011).
24 KSP EVIDENCE GUIDE, supra note 8, at 8-18.
25 ASCLD/LAB-LEGACY 2008 MANUAL, supra note 23, at 20-22.
26 Id. at 20-23. In addition, the Commonwealth has promulgated rules to ensure the preservation and integrity of
DNA testing of samples for inclusion in Kentucky’s DNA Database. See Ky. REV. STAT. ANN. § 17.175(6) (West
2011) (requiring the Cabinet to “promulgate administrative regulations necessary to carry out the provisions of the
DNA database identification system,” including procedures for collection of DNA samples from designated persons
for inclusion in the database and procedures conceming database system usage and integrity); 502 Ky. ADMIN.
REGS. 32:010 (2010) (“establish[ing] collection procedures for DNA samples for inclusion in the DNA database,
quality assurance and testing proficiency standards for DNA samples included in the DNA database, and procedures
goveming DNA database system usage, security, and integrity”).
See Ky. REV. STAT. ANN. § 15.404 (West 2011); Ky. DEP’T OF CRIMINAL JUSTICE TRAINING, 2011 TRAINING
SCHEDULE 95 (2011), available at http://docjt-ky.gov/T rainingSchedule/index.html.
8 Ky. Rev. STAT. ANN. §§ 422.285(2)(c), (3)(c) (post-conviction DNA testing for death row inmates),
422.287(1)-(2) (West 2011) (DNA testing when “a person is being tried for a capital offense”).
38
Frankfort, Kentucky.” KSP Laboratory does not perform all types of DNA testing, including Y -
Str, mitochondrial, and patemity testing.”
1. Standards for Obtaining DNA Testing
A capital defendant or a death row inmate who requests DNA testing must show that the
requested testing will yield evidence of probative value by including in his/her motion to the
court “sufficient information about the evidence, the necessity for its testing and analysis, and its
applicability to the proceeding.”*!
a. Pretrial and Trial DNA Testing
Pursuant to the Kentucky Revised Statutes (KRS) 422.287, “[w]hen a person is being tried for a
capital offense and there is evidence in the case which may be subjected to [DNA] testing and
analysis,” both the Commonwealth and defense may request the court to order DNA testing on
“any item of evidence not previously subjected to DNA testing and analysis.”** The court will
order DNA testing and analysis to be performed at KSP Laboratory if the requesting party is able
to show that (a) the item of evidence has not previously been tested and analyzed, or that new
testing and analysis would produce a more accurate result, and (b) DNA testing and analysis
would yield evidence of probative value.** Results of testing under KRS 422.287 are available
to both the Commonwealth and defense, and either party may move for the results to be admitted
at trial.
In practice, the Commonwealth's law enforcement agencies and/or prosecutors submit evidence
to KSP Laboratory for DNA testing and analysis.” Although KSP Laboratory is statutorily
mandated to provide testing to the Kentucky Department of Public Advocacy (DPA) free of
9 Forensic Laboratories, Ky. STATE POLICE, http://www. kentuckystatepolice.org/labs.htm (last visited Aug. 3,
2011); Central Lab, Ky. STATE POLICE, http:/Awww.kentuckystatepolice.org/for_lab/central.htm (last visited Aug. 3,
2011). For more on KSP Forensic Laboratory, see Chapter Four on Crime Laboratories and Medical Examiners.
3° Telephone Interview by Paula Shapiro with Laura Sudkamp, Director, KSP Lab., Jan. 13, 2010 (on file with
author) (stating that KSP Laboratory does not perform any type of testing for cases where laboratory personnel may
be related to either party). Instead, these types of testing cases are contracted out to independent laboratories outside
of the Commonwealth. Id. See also Moore v. Commonwealth, Nos. 2008-SC-000860-MR, 2008-SC-000925-MR,
2008-SC-000957-MR, 2011 WL 2433737, at *5 (Ky. June 16, 2011) (“[Petitioner] also raised another type of DNA
testing not previously identified in his motions, Y-STR, which is STR testing of the Y-chromosome, which is
present only in males .... He also raised again the possibility of mitochondrial DNA testing. ... He noted that the
state laboratory conducts neither type of test... . He also noted that the state lab does perform standard STR
testing, but that such testing is likely to destroy the entire sample, which would make additional testing
impossible.”).
5! Ky. REV. STAT. ANN. § 17.176(1) (West 2011).
® Ky. REV. STAT. ANN. § 422.287(1) (West 2011); see also Ky. REV. STAT. ANN. § 422.285 (West 2011).
33 Ky. Rev. STAT. ANN. § 422.287(2)-(3) (West 2011) (allowing KSP Laboratory to select another laboratory to
erform the testing and analysis of the DNA evidence).
4 Ky. REV. STAT. ANN. § 422.287(4) (West 2011).
35 KSP EVIDENCE GUIDE, supra note 8, at 5; Interview with Laura Sudkamp, supra note 30. The KRS and KSP
Laboratory place limits on the number of items that may be submitted for testing by any submitting entity. See infra
notes 45-47 and accompanying text.
39
charge, DPA typically sends evidence to be independently tested at laboratories outside of the
Commonwealth.*®
b. Post-Conviction Petitions for DNA Testing
At any time, a death row inmate may petition the court for post-conviction DNA testing of any
evidence in possession or control of the court or Commonwealth “that is related to the
investigation or prosecution that resulted in the judgment of conviction and that may contain
biological evidence,” provided that certain preliminary issues are resolved, e.g., condition of the
evidence.*”
After notice and an opportunity to respond are provided to the Commonwealth’s prosecutor, a
court must order DNA testing and analysis if the court finds that:
(a) [a] reasonable probability exists that the petitioner would not have been
prosecuted or convicted if exculpatory results had been obtained through
DNA testing and analysis;
(b) [t]he evidence is still in existence and is in a condition that allows DNA
testing and analysis to be conducted; and
(c) [t]he evidence was not previously subjected to DNA testing and analysis or
was not subjected to the testing and analysis that is now requested and may
resolve an issue not previously resolved by the previous testing and
analysis. *
In the alternative, after notice to the prosecutor and an opportunity to respond, it is within the
court's discretion to order DNA testing and analysis if the court finds that:
(a) [a] reasonable probability exists that either:
i. [t]he petitioner’s verdict or sentence would have been more favorable if
the results of DNA testing and analysis had been available at the trial
leading to the judgment of conviction; or
ii. DNA testing and analysis will produce exculpatory evidence;
(b) [t]he evidence is still in existence and is in a condition that allows DNA
testing and analysis to be conducted; and
(c) [t]he evidence was not previously subject to DNA testing and analysis or was
not subjected to the testing and analysis that is now requested and that may
3° Ky. REV. STAT. ANN. §§ 422.285(3), 422.287(3) (West 2011); Telephone Interview by Sarah Turberville and
Paula Shapiro with Randy Wheeler, Project Coordinator, Ky. Innocence Project, Ky. Dep't of Pub. Advocacy, Jan.
11, 2011 (on file with author).
37 Ky. REV. STAT. ANN. § 422.285(1) (West 2011). The statute lists the factors for the court to consider regarding
approval of the DNA testing. Ky. Rev. STAT. ANN. § 422.285(2)-(3) (West 2011). See also Taylor v.
Commonwealth, 175 S.W.3d 68, 76 (Ky. 2005) (“There are also notice provisions contained in the statute that
require a petitioner to inform the Commonwealth of the testing and grant it access to the laboratory reports.”).
38” Ky. REV. STAT. ANN. § 422.285(2) (West 2011) (providing the prosecution with the right to be heard on this
issue).
40
resolve an issue not previously resolved by the previous testing and
analysis. °°
A “reasonable probability,” described at KRS 422.285(2)(a) and 422.285(3)(a), requires the
inmate to describe “the role the evidence would have had if available in the original
prosecution,” and that “the evidence sought would either exonerate the defendant, lead to a more
favorable verdict or sentence, or otherwise be exculpatory.”“° Furthermore, the inmate
petitioning for DNA testing must “at a bare minimum, [] specifically identify what is to be
tested, and where on the item the DNA is expected to be found.”*!
If a petition for post-conviction DNA testing is filed under KRS 422.285, the court must “order
the [Commonwealth] to preserve during the pendency of the proceeding all evidence in the
[Commonwealth]’s possession or control that could be subjected to DNA testing and analysis.”“”
The Commonwealth must “prepare an inventory of the evidence and shall submit a copy of the
inventory to the defense and the court. If the evidence is intentionally destroyed after the court
orders its preservation, the court may impose sanctions, including criminal contempt.”“* KRS
422.285(7) also provides the court with discretionary powers to make any other orders it deems
appropriate, including the preservation of some of the sample for replicating the testing and
analysis and/or to order elimination samples from third parties.“
2. Costs and Limitations of DNA Testing
Upon a court order for DNA testing and analysis during pre-trial, trial, or post-conviction
proceedings, both the prosecution and defense are limited to submission of “not more than five []
items of evidence for testing and analysis” by KSP Laboratory or another laboratory selected by
KSP Laboratory, free of charge to the submitting agency.” Either the prosecution or defense
may request the trial court to order additional testing in excess of these five items, with the cost
to be paid by the requesting party.“° A trial court’s order authorizing testing and analysis must
accompany any “additional item of evidence submitted for testing” to KSP Laboratory."
KSP Laboratory’s Forensic Biology Case Acceptance Policy limits the forensic testing it
provides by the type of case associated with each sample as well as the type of testing to be
°° Ky. REV. STAT. ANN. § 422.285(3) (West 2011).
4 Bowling v. Commonwealth, No. 2008-SC-000901-MR, 2010 WL 3722283, at *4 (Ky. Sept. 23, 2010).
Bowling required the death row inmate to state “what he expects the evidence to be, and how that evidence would,
within a reasonable probability, result in exoneration, or a more favorable verdict or sentence, or be exculpatory.”
Id. at*5.
A Td. at *5 (“[I]t is patently unreasonable to expect every area of an item to be tested.”).
“Ky. REV. STAT. ANN. § 422.285(6) (West 2011); see also Ky. REV. STAT. ANN. § 17.176(1) (West 2011).
‘Ky. REV. STAT. ANN. § 422.285(6) (West 2011).
“Ky. Rev. Stat. ANN. § 422.285(7) (West 2011).
45" Ky. REV. STAT. ANN. § 17.176(2)-(3) (West 2011) (also applying the requirements of KRS 422.285).
46 Ky. Rev. STAT. ANN. §§ 17.176(2)-(3), 422.285(4) (West 2011). Additionally, according to KRS 17.176, any
other party in a criminal case is permitted to submit DNA evidence to KSP Laboratory or a laboratory chosen by
KSP Laboratory after receiving the court’s permission upon “a specific showing of necessity for testing and
analysis,” with costs paid by the requesting party. Ky. REV. STAT. ANN. § 17.176(4) (West 2011).
“Ky, REV. STAT. ANN, § 17.176(2)-(3) (West 2011).
41
performed (i.e., serology, bloodstain pattern, and DNA testing).”® For example, KSP Laboratory
permits testing for up to ten items for an initial submission for murder/death investigation cases,
although “[a]dditional items may be submitted on a case by case basis if specific information
about those items (i.e., multiple victims and/or suspects) is provided by the investigating officer
at the time of submission.” The policy acknowledges that although there may be many items
collected during an investigation, “only the most probative items should be submitted to the
laboratory for analysis.”*’ Appropriate reference standards also may be submitted for testing
and “are not included in the total item counts” provided.°' When DPA seeks funding through
KRS 31.185 to obtain testing at an independent laboratory, such testing may he limited by the
amount of funding approved by the court. However, independent testing is not subject to the ten-
sample limitation imposed at KSP Laboratory.
KSP Laboratory maintains “a uniform schedule of fees to be charged for testing and analysis
conducted pursuant to KRS 422.285 or KRS 422.287.” KSP Laboratory policy states that
“[c]osts for DNA analyses that are not offered by [KSP Laboratory] will generally be the
responsibility of the agency submitting the evidence.”
3. Disposition of a Post-Conviction DNA Testing Petition
In the event that the results of a death row inmate’s DNA testing and analysis are favorable to the
inmate, “the court shall order a hearing and make any further orders that are required” under the
KRS or the Kentucky Rules of Criminal Procedure.** Upon unfavorable DNA test results to the
death row petitioner, the court will dismiss the petition and may make orders, if it deems
appropriate, including (a) “[nJotifying the Department of Corrections and the Parole Board,” (b)
requesting the petitioner's DNA sample to be added to the KSP Laboratory’s centralized
database, and (c) “providing notification to the victim or family of the victim.”*°
Since the enactment of the Kentucky Innocence Protection Statutes in 2002, a number of death
row inmates have requested DNA testing under KRS 422.285, with varying degrees of success.°°
For more on these cases, see the Analysis Section.
48 KSP LAB., FORENSIC BIOLOGY ANALYTICAL MANUAL 1-8 (effective Apr. 2, 2010) (listing the Forensic Biology
Case Acceptance Policy).
49° Id. ati (noting that as for subsequent submissions, “[c]ommunication between the analyst and the investigating
officer/prosecutor should provide information as to the reason additional items may need to be submitted.”).
50 KSP LaB., FORENSIC BIOLOGY ANALYTICAL MANUAL 3 (effective Apr. 2, 2010); Ky. REV. STAT. ANN. §
17.176(2)-(3) (West 2011) (effective July 15, 2002).
51 KSP LaB., FORENSIC BIOLOGY ANALYTICAL MANUAL 3 (effective Apr. 2, 2010).
2 Ky. Rev. STAT. ANN. § 17.176(5) (West 2011).
KSP LaB., FORENSIC BIOLOGY ANALYTICAL MANUAL 6 (effective Apr. 2, 2010).
Ky. Rev. STAT. ANN. § 422.285(9) (West 2011) (authorizing post-conviction relief even when a new trial
motion would be time-barred).
Ky. REV. STAT. ANN. § 422.285(8) (West 2011).
58 See, e.g., Bowling v. Commonwealth, No. 2008-SC-00901-MR, 2010 WL 3722283 (Ky. Sept. 23, 2010);
Moore v. Commonwealth, Nos. 2008-SC-000860-MR, 2008-SC-000925-MR, 2008-SC-000957-MR, 2011 WL
2433737, at *5 (Ky. June 16, 2011); Epperson v. Commonwealth, 97-CR-000016 (Warren Cir. Ct.) (Epperson’s
DNA testing has been authorized, although it has not begun, and remains pending before the Warren Circuit Court).
See also Brief for Appellant, Bowling v. Commonwealth, No. 2008-SC-000901-MR, at *i-ii (Mar. 26, 2010)
(“Although KRS 422.285 applies to all death-sentenced inmates and although the statute has now been in existence
42
4. Limitations on Multiple Petitions
The Kentucky Supreme Court has stated that the Kentucky General Assembly “made clear its
intent not to have successive, redundant DNA testing requests and placed a high burden on a
movant to establish that an entirely new issue is involved.”*” By adopting statutory language in
KRS 422.285 that requires the evidence not have been previously tested or, if it was tested, “the
type of testing now being requested is qualitatively different and ‘may resolve an issue not
previously resolved by the previous testing and analysis.” According to the Court, “DNA
testing, sometimes many years after trial, is limited to the ‘one bite of the apple’ rule.”*°
5. Representation for Death Row Inmates Requesting DNA Testing
Death row inmates are not entitled to counsel to assist in requesting the court to order post-
conviction DNA testing. Instead, if the court orders testing and analysis, only then is an indigent
death row inmate entitled to appointed counsel under KRS Chapter 31.°° In practice, however,
all death row inmates are assigned counsel through the Kentucky Department of Public
Advocacy or the Louisville Metro Public Defender’s Office and are represented during post-
conviction proceedings.*!
for approximately seven years, this Court has yet to interpret the meaning or application of the statute as a whole, or
the terminology within it.”).
oF Bowling, 2010 WL 3722283, at *5; Ky. REV. STAT. ANN. § 422.285(2)(c), (3)(c) (West 2011).
Bowling, 2010 WL 3722283, at*5; Ky. REV. STAT. ANN. § 422.285(2)(c), (3)(c) (West 2011).
5° Bowling, 2010 WL 3722283, at *5
Ky, REV. STAT. ANN. § 422.285(4) (West 2011).
51 For more information on the representation of capital defendants and death row inmates, see Chapter Six.
58
4B
II, ANALYSIS
A. Recommendation #1
Preserve all biological evidence” for as long as the defendant remains incarcerated.
The Commonwealth of Kentucky does not require the preservation of all biological evidence for
as long as a defendant remains incarcerated. Instead, the Commonwealth's only post-trial
preservation requirement is triggered when a death-sentenced inmate applies for post-conviction
DNA testing and lasts only through the duration of the post-conviction DNA testing
proceedings.”’ Prior to 2002, there was no uniform rule among Kentucky’s evidence-holding
agencies on the proper amount of time to preserve physical evidence after an individual’s
conviction and sentence became final. Thirty of the thirty-five current death row inmates were
originally sentenced to death prior to preservation rules coming in to effect in 2002."
Moreover, the Commonwealth’s statute on retention of evidence, found at KRS 524.140,
emphasizes destruction rather than preservation of DNA and other types of evidence.
Specifically, the statute permits the pretrial destruction of evidence if (a) the prosecution
determines that the defendant will not be tried, (b) the prosecution makes a motion to destroy the
evidence to the court which would have heard the case had it been tried, and (c) the court
authorizes destruction of the evidence after holding an adversarial proceeding in which the
prosecution and the defense is heard.® Similarly, if a defendant is “found not guilty or the
charges were dismissed after jeopardy attached, whether or not the evidence was introduced at
trial or was subject to DNA testing and analysis,” the court also may order the destruction of the
evidence after holding an adversarial hearing.®” By permitting the destruction of evidence under
these circumstances, the Commonwealth may destroy evidence in potentially unsolved cases
where the perpetrator remains at large.
® “Biological evidence” includes “the contents of a sexual assault examination kit; and any item that contains
blood, semen, hair, saliva, skin tissue, fingemail scrapings, bone, bodily fluids or other identifiable biological
material that was collected as part of the criminal investigation or may reasonably be used to incriminate or
exculpate any person for the offense.” See INNOCENCE PROJECT, MODEL STATUTE FOR OBTAINING PosT-
Conviction DNA TESTING 2 (2010), available at http://www.innocenceproject.org/docs/2010/Access_to_Post-
conviction _DNA_Testing_%20Model_Bill_2010.pdf. This includes material that “is catalogued separately (e.g., on
a slide, [on a] swab or in a test tube) or is present on other evidence (including, but not limited to, clothing, ligatures,
bedding or other household material, drinking cups, cigarettes, etc.).” Id.
53 HB. 4, 2002 Gen. Assemb., Reg. Sess. (Ky. 2002) (effective July 15, 2002) (codified at Ky. REV. STAT. ANN. §
422.285(6) (West 2011)) (applying only to death row inmates requesting post-conviction DNA testing). But see Ky.
Rev. STAT. ANN. § 524.140(7) (West 2011) (commonly referred to as the Kentucky Innocence Protection statute,
this statute applies to certain felony offenders and death row inmates and requires the Commonwealth, subject to
KRS 422.285(6), to “retain any biological materials secured in connection with a criminal case for the period of time
that any person remains incarcerated in connection with that case” (emphasis added)).
See Profiles of Kentucky Death Row Inmates, Ky. Dep’T oF Corr,
http://www.corrections.ky .gov/inmateinfo/deathrow.htm (last visited Nov. 17, 2011).
85 The actual title of KRS 524.140 is “Disposal of evidence that may be subject to DNA testing; motion to destroy;
liability for destruction; penalty; retention of biological material.” Ky. REV. STAT. ANN. § 524.140 (West 2011).
°° Ky. REV. STAT. ANN. § 524.140(2) (West 2011).
Ky, REV. STAT. ANN, § 524.140(3)(c) (West 2011).
44
The KRS also permits the destruction of evidence following trial of a capital defendant. In
cases in which a defendant is found guilty, pled guilty, or entered an Alford plea at trial, and
DNA analysis results were presented at trial, the evidence is permitted to be destroyed without a
motion to the court or a hearing.®® In other cases in which a defendant is found guilty, pled
guilty, or entered an Alford plea at trial, and the DNA evidence was not introduced at trial, or if
evidence was introduced but had not been subject to DNA testing, a Commonwealth court may
order the destruction of such evidence after holding “an adversarial hearing conducted upon
motion of either the prosecution or the defendant.” Destruction of evidence in these
circumstances renders it impossible to uncover, through testing of previously untested or
untestable evidence, instances of wrongful conviction that are revealed only after a capital
defendant has been sentenced to death and is awaiting execution.”
One particular account of a Kentucky non-capital case illustrates the potential consequences of
the KRS 524.140’s emphasis on destruction of evidence in criminal cases. A Kentucky citizen,
Michael Elliot
was convicted of murder in 1997 and sentenced to life without the possibility of
parole. In 2002, while investigating Elliot's wrongful conviction claim, the
Kentucky Innocence Project discovered a bloodstain that they believed came from
the assailant. The Project hoped that this piece of . . . evidence, preserved among
other physical evidence in the state police department evidence room, could be
subjected to DNA analysis and produce results that would exonerate Elliot. The
Project immediately moved to have the stain preserved. The prosecutor’ s office []
opposed the motion to preserve the stain, [and] filed a motion with the court to
have the evidence destroyed before any DNA testing could be conducted. [T]he
trial court granted the government's motion, authorizing the immediate
destruction of this untested and potentially exculpatory evidence.”
88 Ky. REV. STAT. ANN. § 524.140(3) (West 2011). In fact, the legislation permits the destruction of evidence in
all capital cases, Class A, B, and C felonies, and KRS Chapter 510 Class D felonies. Ky. REV. STAT. ANN. §
524.140(1) (West 2011). Preservation is required only if a death row defendant makes a motion for post-conviction
testing. Ky. REV. STAT. ANN. § 422.285(7) (West 2011).
59 Ky. REV. STAT. ANN. § 524.140(3)(a) (West 2011) (“No item of evidence . . . shall be disposed of following the
trial unless [t]he evidence, together with DNA evidence testing and analysis results, has been presented at trial, and
the defendant has been found guilty, pled guilty, or entered an Alford plea at the trial.”). The statute is not clear on
whether evidence to be retained or destroyed after having been admitted into evidence must he inculpatory or
exculpatory.
™ Ky. REV. STAT. ANN. § 524.140(3)(b) (West 2011).
See, e.g., Innocence Project Case Files, INNOCENCE PROJECT, http://www.innocenceproject.org/know (last
visited Aug. 3, 2011) (noting that there have been 273 DNA post-conviction exonerations, seventeen of which were
of death row inmates); infra notes 75-76 and accompanying text. A death row inmate also may request, pursuant to
KRS 422.285, post-conviction testing in order to demonstrate that s/he should have not been subject to the death
penalty. Ky. Rev. STaT. ANN. § 422.285 (West 2011). However, since the Commonwealth’s preservation
requirements do not account for this possibility, potentially admissible and exculpatory evidence may be destroyed.
™ Cynthia E. Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence Under
Innocence Protection Statutes, 42 AM. CRIM. L. REV. 1239, 1255 n.80 (2005) (citing Katya Cengel, Kentucky Law
Students are Transforming American Justice, COURIER-J. (Louisville Ky.), June 29, 2003, at 1H. Former FBI
Director William Sessions also noted the egregiousness of the actions taken in the Elliot case. William S. Sessions,
DNA Tests Can Free the Innocent. How Can We Ignore That?, WASH. Post, Sept. 21, 2003, at B2; Testimony of
Barry Scheck before the U.S, Senate Committee on the Judiciary (June 18, 2002) (on file with author).
45
Even in scenarios, such as in the Elliot case, where the possibility of actual innocence is under
investigation and a defendant has requested preservation of evidence for testing, Commonwealth
courts may approve a prosecution motion to destroy potentially exculpatory evidence. The
statutory requirement of providing notice of preservation or testing requests to the
Commonwealth also may provide the prosecution notice to counter-file a request to destroy the
same evidence.
Furthermore, the burden of proof for a KRS 524.140 “motion to destroy evidence that may be
subject to DNA testing and analysis” is “good cause favoring its destruction,” notwithstanding
the value that such evidence could possess to solve cold cases or determine with certainty, the
guilt or innocence of a death row inmate awaiting execution.” There have been instances where
Kentucky prosecutors moved for the destruction of evidence when a county did not have enough
storage space to hold evidence and when testable material was found on large pieces of evidence,
such as a couch.”
Because of the different language used by the KRS to describe evidence subject to preservation
or testing, it is unclear what specific “biological” evidence or material must be preserved under
the Kentucky law.” For example, forensic laboratories now conduct DNA testing on “touch
DNA,” which includes evidence that was once never considered in the biological/DNA
context.”° Potentially exculpatory evidence could be destroyed prior to the discovery of
advanced technology that could allow testing on previously untestable evidence.””
Finally, the Commonwealth’s statutes do not identify the specific government entity or entities
responsible for preservation, nor do uniform standards for preservation by the various
Commonwealth entities exist. Instead, the KRS provides that “the appropriate govemmental
73 Ky. Rev. STAT. ANN. § 524.140(2)-(4) (West 2011) (in order to confirm the guilt or innocence of a criminal
defendant).
74 Jones, supra note 72, at 1263 n.107 (citing John Cheves, Bills Call For Felons’ DNA Samples Another Requires
Keeping Evidence, Lexington Herald-Leader, Feb. 12, 2001, at A1).
7 ‘Specifically, the KRS 524.140(2)-(3) preservation requirement applies to an “item of evidence that may be
subject to [DNA] evidence testing and analysis.” Ky. REV. STAT. ANN. § 524.140(2)-(3) (West 2011). However,
KRS 524.140(7) requires the retention of “any biological material secured in connection with a criminal case,” KRS
422.285(1) applies to “any evidence .. . that may contain biological evidence,” and KRS 422.287(1) applies to
“evidence . . . which may be subject to DNA testing and analysis.” Ky. REV. STAT. ANN. §§ 524.140(2)-(3) & (7),
422.285(1), 422.287(1) (West 2011). See also Ky. Rev. STAT. ANN. §§ 17.169(1) (defining ‘DNA sample’ in the
context of the Commonwealth’s DNA database as “a blood or swab specimen from a person . . . that is required to
provide a DNA sample pursuant to KRS 17.170 or 17.510”), 17.175 (West 2011) (discussing both “DNA samples”
and “DNA identification records”).
7 Touch DNA “analyzes skin cells left behind when assailants touch victims, weapons or something else at a
crime scene .... [It] doesn’t require you to see anything, or any blood or semen at all. It only requires seven or
eight cells from the outermost layer of our skin.” What is touch DNA?, SCIENTIFIC AM., Aug. 8, 2008,
http://www.scientificamerican.com/article.cfm?id=experts-touch-dna-jonbenet-ramsey (last visited Aug. 3, 2011)
(noting that the use of touch DNA analysis became available near or around 2003).
See, e.g., Moore v. Commonwealth, Nos. 2008-SC-000860-MR, 2008-SC-000925-MR, 2008-SC-000957-MR,
2011 WL 2433737, at *6-7 (Ky. June 16, 2011) (where evidence on which a death row inmate requested more
advanced DNA testing than was available at the time of his trial had been lost, foreclosing the opportunity for any
additional, advanced testing of the evidence).
46
entity . . . shall have the discretion to determine how the evidence is retained . . . provided that
the evidence is retained in a condition suitable for DNA testing and analysis.””°
It appears that law enforcement entities are primarily responsible for the preservation of evidence
in criminal cases.’? Prior to 2002, evidence in some criminal cases had been stored in bank
safety-deposit boxes and now prosecutors are unsure “if any of those items are still in safety
deposit boxes or if they are at the courthouse.”®” In other cases, evidence may have been kept by
a variety of different law enforcement agencies, in courtrooms, or in other locations depending
on the stage of the case.®’ Notably, when new courthouses are constructed, officials have
misplaced evidence during the transfer of such evidence and files from the old to the new
courthouse facilities.® During such transition, while the employees of court clerks’ offices are
responsible for tracking and “transport[ing] the evidence to ensure it is properly handled,” there
is “no written policy for moving evidence from one facility to another.”*” In fact, evidence from
at least one non-capital homicide case has been located in the possession of the victim’s
family.** The lack of uniformity and specifications in the Commonwealth’s preservation
practices clearly increase the likelihood of evidence being lost, misplaced, or even destroyed.
There have been a number of instances in which Commonwealth law enforcement officials or
prosecutors have lost or misplaced evidence. In one death penalty case, the Commonwealth was
unable to locate hairs that had been introduced and used at trial to convict an inmate, after the
inmate requested DNA testing on the hairs. In another death penalty case, an inmate was
unable to obtain possibly exculpatory DNA testing on pants and shoes from the crime scene
which had been lost, despite the Commonwealth’s “substantial search for the missing items,
7 Ky. REV. STAT. ANN. § 524.140(7) (West 2011). If a death row inmate files a petition requesting DNA testing,
“the court shall order the state to preserve during the pendency of the proceeding all evidence in the state's
possession or control that could be subjected to DNA testing and analysis.” Ky. REV. STAT. ANN. § 422.285(6)
(West 2011) (“The state shall prepare an inventory of the evidence and shall submit a copy of the inventory to the
defense and the court.”).
79 Interview with Randy Wheeler, supra note 36; Interview with Laura Sudkamp, supra note 30 (noting that KSP
Laboratory is not one of the law enforcement entities responsible for preservation).
50 Brett Barrouquere, Lost, Missing Evidence Plagues Kentucky Court System New Efforts Can’t Make Up for Lax
Old Rules, ASSOCIATED PRESS, Nov. 27, 2009.
51 Barrouquere, supra note 80 (noting that prior to the enactment of preservation laws, the Commonwealth had
“loose rules for handling evidence [that] allowed legal exhibits to be stored in bank safe-deposit boxes”); see, e.g.,
Deborah Y etter, Man cleared after 13 years in prison, COURIER-J. (Louisville, Ky.), June 12, 2003, at A1 (noting
that the DNA evidence from a rape case was finally found over ten years later in a courthouse evidence room).
82 Barrouquere, supra note 80 (describing missing evidence after construction of new courthouses). Between
2000 and 2009, there were thirty-six new courthouses constructed. Id.
83 Td. We were unable to determine whether such employees received any training or instruction on the proper
handling of evidence.
51 In a non-capital homicide from 1971, potentially exculpatory evidence, including the bloody clothes and wallet
of the victim, were in the possession of the victim's family, who said they were unsure “whether the family would
be willing to provide the items to the Kentucky Innocence Project.” City reverses course, release file requested in
40-year-old Lexington murder case, LEXINGTON HERALD-LEADER, Aug. 9, 2011,
http://www.kentucky.com/2011/08/09/1839153/lexington-police-reverse-course.html#ixzz1VJozvk90 (last visited
Aug. 17, 2011).
85 “Wilson v. Parker, 515 F.3d 682, 706 (6th Cir. 2008) (upholding the denial of a hearing on the issue of the
missing hairs, stating that in light of the other evidence of guilt, “[e]ven if the hair-matching evidence is unreliable
as Wilson alleges and was excluded, the outcome of the trial would have been unaffected.”).
47
contacting over a dozen individuals and multiple police and other state agencies.”*° In another
non-capital case, DNA testing that was not available at the time of conviction exonerated
Herman May, who spent thirteen years in jail after being wrongly convicted of rape.*’ The May
investigation by the Kentucky Innocence Project (KIP), which is affiliated with the Kentucky
Department of Public Advocacy (DPA), had some “hair-raising moments, including the
temporary loss of the DNA evidence after a judge [] granted May’s lawyer's motion for
additional testing of the evidence.”
In fact, according to some defense attorneys, “evidence has gone missing in Kentucky, resulting
in problems for six capital cases and possibly hundreds of other prosecutions, including rapes
and robberies.”*°
In at least one instance, the Commonwealth has not adhered to a court’s preservation order.°° In
Taylor v. Commonwealth, a death row inmate requested new and advanced DNA testing and
analysis on the remaining evidence preserved in his case.°! In response, the court entered a
preservation order pursuant to KRS 422.285." Despite the presence of this preservation order,
KSP Laboratory, at the request of the Commonwealth, conducted testing on one of two
86
See supra note 30 and accompanying text.
87
Deborah Y etter, Man cleared after 13 years in prison, COURIER-J. (Louisville, Ky.), June 12, 2003, at Al.
While testing during the initial trial produced inconclusive results, “more sophisticated tests conducted [in 2002]
showed that the DNA material taken from the victim through a swab after the rape could not have come from May
because it did not match May’s “Y” or male chromosome.” Id.
88 Id. (noting that “May’s advocates persuaded officials to keep looking and the DNA evidence, stored in the
courthouse evidence room, was found jumbled in a box along with scores of other items where it had been moved”).
a Barrouquere, supra note 80. See also, e.g., Collins v. Commonwealth, 951 S.W.2d 569, 571-72 (Ky. 1997)
(prosecution lost one of the bullets found at the scene); Fields v. Commonwealth, 274 S.W.3d 375, 416 (Ky. 2008)
(storm window removed from Horton's home and later lost by the Grayson Police Department), overruled on other
grounds by Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010); Estep v. Commonwealth, 64 S.W.3d 805, 810
(Ky. 2002) (Commonwealth failed to collect exculpatory evidence by having the victim’s body cleaned before a
gunpowder residue test could be performed); Denton v. Hanifen, No. 3:06CV00400-JDM, 2008 WL 655984, at *1
(W.D. Ky. 2008) (a Louisville Metropolitan Police Department detective lost a tape recorded conversation between
himself and a complaining witness during a criminal investigation); Grey v. Commonwealth, No. 2005-SC-000590-
MR, 2007 WL 1532661, at *1 (Ky. May 24, 2007) (a bullet was tumed into the property room at the Lexington
Police Department under another case number and subsequently destroyed); Tamme v. Commonwealth, 759 S.W.2d
51, 54 (Ky. 1988) (lost bullet was an unforeseen accident which occurred in the normal course of the police
department's business); Hembree v. Commonwealth, No. 2005-CA-001730-MR, 2006 WL 1791396, at *2 (Ky. Ct.
App. June 30, 2006) (court found “that the destruction of the [audio tape containing possible exculpatory] evidence
by the police officer was deliberate and intentional”); Mills v. Commonwealth, 170 S.W.3d 310, 332 (Ky. 2005)
(police failed to collect moonshine as evidence), overruled on other grounds by Leonard v. Commonwealth, 279
S.W.3d 151 (Ky. 2009); Morrow v. Commonwealth, No. 2003-CA-000894-MR, 2004 WL 2368086, at *3 (Ky. Ct.
App. Oct. 22, 2004) (law enforcement lost evidence in a burglary case including the defendant's “driver's license,
social security card and some other things that were removed from the car”); Roark v. Commonwealth, 90 S.W.3d
24, 37 (Ky. 2002) (the police lost the second computer-generated composite sketch and did not retain the photo
lineups shown to a witness); Johnson v. Commonwealth 892 S.W.2d 558, 563 (Ky. 1994) (Stumbo, J., dissenting)
(Kentucky State Police, contrary to normal procedure, released a truck involved in a crime to the victim’s family,
and thus lost “one of the most critical, if not the most critical, piece of physical evidence in the case.”).
5° See Adams v. Commonwealth, No. 2006-CA-000910-MR, 2007 WL 1378461, at *1-2 (Ky. Ct. App. May 11,
2007) (dismissing a petition and refusing to address a claim that KSP Forensic Laboratory destroyed DNA evidence
in violation of KRS 524.140 because the issue was not filed within a reasonable time and accordance to Gross).
ot Taylor v. Commonwealth, 291 S.W.3d 692, 694 (Ky. 2009)
2 Taylor, 291 S.W.3d at 694.
48
remaining slides of DNA, thereby consuming a portion of the already limited amount of
preserved evidence available.®? Had the evidence been tested at the laboratory chosen by the
death row inmate, it appears more advanced testing could have been provided.” In response to
the Commonwealth’s preemptive testing on one of the slides, the Kentucky Supreme Court
found that “[t]hough the Commonwealth technically disobeyed the court’s preservation of
evidence order by testing one of the slides, the testing it did was not an improper form of
testing.”® In another death penalty case, “for whatever reason, the court and the parties did not
comply with the requirements of KRS 422.285(6), which requires that, when a petition for DNA
testing is filed, the court order the state to preserve all evidence in its possession and to prepare
an inventory of evidence for the court and the defense.”*°
Conclusion
Because the Commonwealth does not preserve biological evidence for as long as a death row
inmate remains incarcerated, the Commonwealth does not comply with this Recommendation.
In order to provide an adequate safeguard against the execution of innocent persons, and to
preserve law enforcement and judicial resources that are now expended on determining whether
and in what condition biological evidence exists, the Kentucky Death Penalt Assessment Team
recommends that Kentucky designate the “appropriate governmental entity”®’ responsible for the
proper preservation of all evidence in a capital case. The designated entity must preserve the
evidence for as long as the person remains incarcerated, catalogue each item of physical
evidence, and preserve the evidence that contains biological material in an amount and manner
sufficient to develop a DNA profile. If retention of a particular piece of property containing
DNA evidence is impractical, reasonable care should be taken to retain representative samples of
those portions of the evidence that contain DNA evidence. The Commonwealth also should
adopt legislation clarifying that preservation of “biological evidence” in death penalty cases
include all evidence in which biological material could be present, regardless of existing DNA
testing capabilities.
B. Recommendation #2
All biological evidence should be made available to defendants and convicted
persons upon request and, in regard to such evidence, such defendants and
convicted persons may seek appropriate relief notwithstanding any other provision
of the law.
8 Id. (“[T]he Commonwealth informed Taylor and the trial court that it had conducted its own DNA testing on
one of the two slides remaining from the anal swab, contrary to a previously entered preservation of evidence order
by me Circuit Court.”).
35: a at 695 (emphasis added). The Court held that the Commonwealth's mistaken testing of one of the slides did
“not rise to the level of misconduct that would require us to reverse for a new trial.” Id.
%° Garland v. Commonwealth, Nos. 2009-SC-000035-MR, 2009-SC-000361-MR, 2011 WL 2438371, at *5 (Ky.
une 9, 2011).
” Ky. Rev. STAT. ANN. § 524.140(7) (West 2011).
49
Since 2002, the Commonwealth of Kentucky permits capital defendants and death row inmates
to obtain DNA testing of biological evidence prior to trial and, in some circumstances, through
post-conviction proceedings. Kentucky’s DNA testing statutes are limited to capital
defendants and death row inmates.®?
DNA Testing During Pretrial Discovery
Pursuant to KRS 422.287, in a capital trial, where there is evidence that may be subjected to
DNA testing and analysis, both the Commonwealth and the capital defendant are permitted to
request testing and analysis of any evidence not previously DNA tested.’ The court will order
DNA testing and analysis to be performed by KSP Laboratory if either party is able to show that
(a) the item of evidence has not yet been tested and analyzed or that new testing and analysis
would produce a more accurate result, and (b) DNA testing and analysis would yield evidence of
probative value.'”! Results are available to the Commonwealth and the capital defendant, and
upon court approval, either party may request that the results be admitted at trial.!°
DNA Testing During Post-Conviction
Pursuant to KRS 422.285, all death row inmates are permitted to file a post-conviction petition
for DNA testing and analysis.’°° Specifically, a death row inmate may request DNA testing and
analysis of any evidence which may contain biological material that is (a) in the possession or
control of the court or the Commonwealth, and (b) “related to the investigation or prosecution
that resulted in the judgment of conviction”?
The Commonwealth allows a death row inmate to file a petition for post-conviction DNA testing
and analysis “at any time” after his/her conviction.'°° However, the statute requires petitioners
98 Ky. Rev. STAT. ANN. §§ 422.287 (pre-trial testing of DNA evidence), 422.285 (West 2011) (post-conviction
DNA testing for death row inmates).
% See, e.g., Craig M. Cooley, Advancing DNA Technology and Evolving Standards of Decency: Do Capital
Prisoners Have an Eighth Amendment Right to Post-Conviction DNA Testing in Light of Osborne, 4 CHARLESTON
L. REV. 569, 609 (2010); Brandon L. Garrett, DNA and Due Process, 78 FORDHAM L. REV. 2919, 2946 (2010)
(“Kentucky and Nevada limit access to post[-]conviction DNA testing to capital cases.”). “Forty-seven states, the
District of Columbia, and the federal government have all enacted legislation specifically addressing prisoner access
to DNA evidence.” Michael P. Luongo, Post-Conviction Due Process Right to Access DNA Evidence: Dist.
Attorney's Office v. Osborne, 129 S. Ct. 2308 (2009), 29 Temp. J. Scl. TECH. & ENVTL. L. 127, 134 (2010).
100 Ky. REV. STAT. ANN. § 422.287(1) (West 2011).
10 Ky. REV. STAT. ANN. § 422.287(2)-(3) (West 2011). In the altemative, KSP Laboratory would select another
laboratory to perform the testing and analysis of the DNA evidence. Ky. REV. STAT. ANN. § 422.287(3) (West
2011). The Kentucky Department of Public Advocacy (DPA) and other Commonwealth capital defense attorneys
primarily utilize private laboratories outside of Kentucky for DNA testing during trial and post-conviction
proceedings. Interview with Randy Wheeler, supra note 36.
12 Ky. REV. STAT. ANN. § 422.287(4) (West 2011). Furthermore, “[i]f the defendant is convicted of any offense
for which DNA test and analysis results are required to be maintained by law, the DNA test and analysis results
obtained pursuant to this section shall be utilized for that purpose, whether or not the test and analysis results were
introduced in the case.” Ky. REV. STAT. ANN. § 422.287(5) (West 2011).
18 Ky. REV. STAT. ANN. § 422.285 (West 2011).
‘Ky. REV. STAT. ANN. § 422.285(1) (West 2011).
105 Td.; see also Moore v. Commonwealth, Nos. 2008-SC-000860-MR, 2008-SC-000925-MR, 2008-SC-000957-
MR, 2011 WL 2433737, at *5 (Ky. June 16, 2011) (refusing the Commonwealth’s claim that a death row inmate
50
to comply with stringent pleading requirements in order to obtain DNA testing and analysis.'°
After a petition for post-conviction DNA testing is filed, the prosecution must be given the
opportunity to respond to the request, and the court must order the Commonwealth to preserve
all biological evidence that could be subjected to DNA testing and analysis.’ Once a
preservation order is issued, if any evidence is intentionally destroyed, the court may, but is not
required to, issue sanctions. 108 However, in at least one case, the court did not penalize the
prosecution for violating a preservation order.’ It is imperative that the Commonwealth ensure
the proper preservation of biological evidence, as the failure to properly preserve such evidence
renders useless any testing statute.
Trial courts in Kentucky are required to order DNA testing and analysis of biological evidence if
“[a] reasonable probability exists that the petitioner would not have been prosecuted or convicted
if exculpatory results” are found.’ The Kentucky Supreme Court has held that, when making a
determination as to whether there is a reasonable probability that the petitioner would not have
been convicted or prosecuted or would have received a lesser sentence, the court must make the
“assumption that the evidence [if tested] will be favorable to the {inmate].”""! Further, the
evidence must not have been previously tested unless the petitioner is requesting a newer or
more advanced testing procedure that “may resolve an issue not previously resolved” by the
earlier tests." The court may order testing to be performed outside KSP Laboratory if the
petitioner demonstrates that “the requested alternative testing is better suited to demonstrating
the truth given the circumstances of the evidence than the standard DNA testing performed by
KSP Laboratory.”'° It is unclear whether a death row inmate seeking testing of evidence that
would prove, if favorable, that s/he could not be charged or convicted of a capital offense, must
be granted testing under this provision.’
However, the court may, but is not required, to order DNA testing of biological evidence if there
is a reasonable probability that the “petitioner's verdict or sentence would have been more
favorable if the results of DNA testing and analysis had been available at the trial” or there is a
reasonable probability that new DNA testing and analysis will produce other exculpatory
evidence.'!° This discretion affords a trial court the power to deny a petition for DNA testing
should be procedurally barred from requesting post-conviction DNA testing four years after enactment of the DNA
testing statute, stating that “[t]his Court will not apply the doctrine of laches to claims under the post-conviction
DNA testing statute).
108 See, e.g., Ky. REV. STAT. ANN. § 422.285(1)-(2) (West 2011).
‘07 Ky, REV. STAT. ANN. § 422.285(2), (6) (West 2011).
18 Ky. REV. STAT. ANN. § 422.285(6) (West 2011).
109 See Taylor v. Commonwealth, 291 S.W.3d 692, 695 (Ky. 2009) ("Though the Commonwealth technically
disobeyed the court’s preservation of evidence order by testing one of the slides, the testing it did was not an
improper form of testing, and the Commonwealth’s mistake in testing one of the slides does not rise to the level of
misconduct that would requires us to reverse for a new trial... .”).
0 Ky. REV. STAT. ANN. § 422.285(2) (West 2011) (emphasis added).
11 Bowling v. Commonwealth, No. 2008-SC-000901-MR, 2010 WL 3722283, at*4 (Ky. Sept. 23, 2010).
"2 Ky, REV. STAT. ANN. § 422.285(2)(c), (3)(c) (West 2011).
‘8 Moore v. Commonwealth, Nos. 2008-SC-000860-MR, 2008-SC-000925-MR, 2008-SC-000957-MR, 2011 WL
2433737, at *18 (Ky. June 16, 2011).
‘4 For example, it is unclear whether a court must grant testing if an inmate, convicted of capital murder due to an
accompanying felony, such as rape, committed during the course of the murder, sought testing to prove that s/he did
not perpetrate the rape and therefore could not be prosecuted or convicted of a capital offense.
4S Ky. REV. STAT. ANN. § 422.285(3) (West 2011) (emphasis added).
51
without reason, perhaps even when the results of such testing could prove that the inmate should
not have been subject to the death penalty." For example, in Garland v. Commonwealth, the
Kentucky Supreme Court overruled a circuit court’s denial of a death row inmate's petition for
post-conviction DNA testing.’!” The Court held that while the inmate did not prove that the
testing, if favorable, would exonerate him/her under KRS 422.285(2), s/he had met the standard
of KRS 422.285(3) by showing a “reasonable probability” that the inmate’s “‘verdict or sentence
would have been more favorable if the results of DNA testing and analysis had been available at
the trial... .’”""° The Kentucky Supreme Court directed the circuit court to order testing and
analysis if the evidence in the case still existed and could be tested.'!° If an inmate is able to
show that a reasonable probability exists that s/he would have received a more favorable
sentence or that DNA testing would produce exculpatory evidence, Commonwealth courts
should be required to order DNA testing and analysis.
Additionally, in any case, the death row inmate must show that the biological evidence (a) exists
and (b) can be tested.’?° In one case, a death row inmate was denied testing of two items, which
had been admitted as evidence during the trial, because the items had later gone missing and
could not be found even after a “substantial search” by the Commonwealth. '”!
Courts are required to hold a hearing in order to determine the necessary relief, if any, only once
DNA testing and analysis has proven favorable to the death row inmate.'”” Additionally,
Kentucky death row inmates are not entitled to counsel or a hearing unless the court grants the
initial pro se post-conviction petition for DNA testing.’?° Thus, under the statute, the
Commonwealth courts would have to rely only on a pro se motion and response from the
prosecution before deciding to grant or deny the petition. While in practice DPA provides
representation to the Commonwealth's death row inmates during post-conviction proceedings,
including during the drafting and filing of an initial post-conviction petition for testing, the
statute fails to guarantee the assistance of counsel to a death row inmate seeking testing and the
opportunity to present evidence in support of its testing petition.'”* In at least one death penalty
case, a death row inmate did not have counsel when s/he initially filed for testing under KRS
422.285.
Ne Ky, REV. STAT. ANN. § 422.285(2) (West 2011).
47 Garland v. Commonwealth, Nos. 2009-SC-000035-MR, 2009-SC-000361-MR, 2011 WL 2438371, at *4-5
(Ky. June 9, 2011); Ky. Rev. STAT. ANN. § 422.285(3)(a) (West 2011).
48" Garland, 2011 WL 2438371, at*4-5; Ky. REV. STAT. ANN. § 422.285(3)(a) (West 2011).
4°" Garland, 2011 WL 2438371, at *5.
20 Ky. REV. STAT. ANN. § 422.285(2)(a), (3)(a) (West 2011); see, e.g., Garland, 2011 WL 2438371 at *5; Bowling
v. Commonwealth, No. 2008-SC-000901-MR, 2010 WL 3722283, at *4 (Ky. Sept. 23, 2010); Taylor v.
Commonwealth, 291 S.W.3d 692 (Ky. 2009).
"2! Moore v. Commonwealth, Nos. 2008-SC-000860-MR, 2008-SC-000925-MR, 2008-SC-000957-MR, 2011 WL
2433737, at * 7 (Ky. June 16, 2011)
2 Ky, REV. STAT. ANN. § 422.285(9) (West 2011).
3" Ky, REV. STAT. ANN. § 422.285(4)-(9) (West 2011).
124 This includes both DPA and the Louisville Metro Public Defender’s Office. For more information on Kentucky
defense services, see Chapter Six.
5 Garland v. Commonwealth, Nos. 2009-SC-000035-MR, 2009-SC-000361-MR, 2011 WL 2438371, at *5-6
(Ky. June 9, 2011) (“On January 2, 2007, Appellant filed a pro se post-conviction motion, requesting DNA testing .
... On November 5, 2008, the circuit court entered an order denying Appellant's pro se motion for DNA testing.”).
52
Upon a return of favorable results from the post-conviction DNA testing and analysis, as noted
above, the court must hold a hearing to determine the proper remedy. 126 " However, neither court
tule nor statute provide guidance for how such a hearing should be conducted, how a court
should determine whether the evidence is favorable, or how a court should proceed if the results
are inconclusive.!?” In the first successful case under KRS 422.285, the court granted DNA
testing finding that the inmate had shown that there was a reasonable probability he would not
have been convicted if DNA testing results proved favorable.’ Because the initial results of the
post-conviction tests were inconclusive, the inmate then petitioned the court to retest the
evidence using a more advanced testing technique.’*° The court rejected his request and held
that the statute did not allow it to order new testing, despite the clear language of the statute
allowing testing on previously tested materials if the requested testing had not been done or if the
requested testing “may resolve an issue not previously resolved by the previous testing.”!*” Ina
seemingly contradictory decision to its previous grant of DNA testing, the court further held that
even if the new testing proved favorable to the inmate, the other evidence presented at trial
would have been sufficient to convict the defendant.'*! This inconsistency demonstrates the
need for Kentucky to establish clear procedures for the courts to follow both before testing is
ordered and after the testing is completed.
Finally, while the KRS requires that the court order preservation of the evidence to be tested, the
statute does not require the court to issue a stay of execution upon the filing a post-conviction
motion for DNA testing.
Conclusion
The Kentucky Death Penalty Assessment Team commends the Commonwealth for adopting
legislation permitting capital defendants and death row inmates to obtain post-conviction DNA
testing on available biological evidence, in recognition that “[a] statute allowing a death [] row
inmate to obtain DNA testing furthers the interests of justice by better ensuring that the
Commonwealth does not follow through with putting an innocent man to death.”!°? “However,
given the discretion afforded to courts to deny a petition for testing when a reasonable
126 Ky. REV. STAT. ANN. § 422.285(9) (West 2011). Additionally, the court, in its discretion, may order further
testing of elimination samples of third parties for comparison with the exonerating sample. Ky. REV. STAT. ANN. §
422.285(7)(b) (West 2011).
27 See, e.g., Moore v. Commonwealth, Nos. 2008-SC-000860-MR, 2008-SC-000925-MR, 2008-SC-000957-MR,
2011 WL 2433737, at*12, 18 (Ky. June 16, 2011) (“Evidence that is favorable but merely impeaches, and thus falls
short of absolutely excluding the defendant, must be weighed against the other evidence in the case” and noting how
other jurisdictions treat testing results that, while favorable, do not exclude the petitioner).
126 Jason Riley, State Lab’s DNA Testing Halted in 1979 Murder, CouriER-J. (Louisville, Ky.), May 13, 2008, at
BS.
129 Opinion and Order, Moore v. Commonwealth, No. 79-CR-976 (Jefferson Cir. Ct. Nov. 7, 2008) (denying the
inmate’s CR 60.02 motion to vacate decision and/or death sentence); Brett Barrouquere, Condemned Ky Inmate's
DNA-Based Appeal Rejected, ASSOCIATED PRESS, Nov. 7, 2008.
130 Opinion and Order, Moore v. Commonwealth, No. 79-CR-976 (Jefferson Cir. Ct. Nov. 7, 2008); Ky. REV.
STAT. ANN. § 422.285(2)(c), (3)(c) (West 2011).
‘S| Brett Barrouquere, Condemned Ky Inmate’s DNA-Based Appeal Rejected, ASSOCIATED PRESS, Nov. 7, 2008.
132 Moore, 2011 WL 2433737, at *21 (“Moreover, it is not even clear that a KRS 422.285 petition will necessarily
cause any delay, since the filing of a petition does not work to stay an execution.”).
a Taylor v. Commonwealth, 175 S.W.3d 68, 77 (Ky. 2005).
53
probability exists that the inmate would not have been sentenced to death if the results of DNA
testing and analysis had been available at trial, the Commonwealth is in partial compliance with
this Recommendation.
However, the problem of lost evidence significantly diminishes the utility of the
Commonwealth's DNA testing statute. In order for Kentucky to protect against wrongful
conviction or execution of an inmate who should not have been subject to the death penalty, it is
imperative that the Commonwealth properly preserve all biological evidence in capital cases.
Furthermore, Kentucky law should provide for a stay of execution during the pendency of the
petition for post-conviction DNA testing.
C. Recommendation #3
Every law enforcement agency should establish and enforce written procedures and
policies governing the preservation of biological evidence.
Preservation of biological evidence is necessary during the collection of evidence at a crime
scene, during forensic testing, and during and after the disposition of a criminal proceeding.
Preservation of Evidence at a Crime Scene
Kentucky does not require the Commonwealth’s law enforcement agencies to establish and
enforce written procedures and policies governing the preservation of biological evidence during
evidence collection at a crime scene.'*
However, to become accredited either by the Commission on Accreditation for Law
Enforcement Agencies, Inc. (CALEA) or the Kentucky Association of Chief's of Police
‘St «The effective exercise of law enforcement responsibility in the investigation of crime and in the prosecution of
offenders requires that information be obtained through the application of scientific knowledge and methods. There
is no practical alternative. Research has shown clearly that physical evidence must be identified, collected, and
preserved properly, and transmitted to the laboratory promptly if laboratory support resources are to be used
effectively.” CALEA STANDARDS, supra note 22, at 83-1.
135 The ABA Standards of Criminal Justice on DNA require:
(a) DNA evidence should be collected and preserved in a manner designed to document its
identity, ensure its integrity, and, whenever possible, ensure its availability for testing and
retesting. Specifically:
(i) the evidence should be properly handled, packaged, labeled, and stored; and
(ii) the location where and the place or thing from which the evidence was collected or
the person from whom or the entity from which it was collected, the date and time it
was collected, the identity of the person who collected it, and the manner in which it
was collected and preserved should be documented.
(b) Whenever DNA evidence is collected from a person, it should be collected by a method that is
medically safe and no more intrusive than reasonably necessary. When it is collected from a
person by court order, the order should so specify.
ABA, ABA STANDARDS FOR CRIMINAL JUSTICE: DNA EVIDENCE 53 (Standard 16-2.5) (3d ed. 2007), available at
http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/dna_evidence.authcheckdam.
pdf. The Commonwealth does not require basic or in-service training, mandatory for all Kentucky law enforcement
officials, to include information about the possibility that the loss or compromise of evidence or illegal, unethical, or
unprofessional behavior may lead to the arrest, prosecution, conviction, or even execution of an innocent person.
We were unable to determine whether any Kentucky law enforcement are so trained. See Ky. REV. STAT. ANN. §§
15.330, 15.386, 15.404, 15.440 (West 2011); 503 Ky. ADMIN. Recs. 1:110, 1:120, 3:030.
54
Accreditation Program (KACP), law enforcement agencies are required to adopt written
directives establishing procedures to be used in criminal investigations, including procedures
regarding collecting, preserving, processing and transmittal of evidence to testing facilities.’ In
addition to such policies, CALEA-accredited agencies must specifically promulgate and adopt
written policies on biological evidence. Specifically, “DNA evidence collection capabilities and
written directives, which include (a) first responder responsibilities and precautions; (b)
procedures for the collection, storage, and transportation of DNA evidence; (c) DNA evidence
collection training requirements for persons collecting evidence; and (d) procedures for the
submission of DNA evidence to accredited laboratories.” '*’ KSP Laboratory also publishes a
Physical Evidence Collection Guide (KSP Evidence Guide), which provides guidance to all
Kentucky law enforcement agencies on the collection, packaging, transportation, short-term
preservation, and transference of evidence, including DNA evidence, to KSP Laboratory.
There has been at least one instance where, during post-conviction relief, a Commonwealth
inmate claimed “that the police failed to properly maintain the integrity of the crime scene,
thereby destroying potentially exculpatory DNA evidence.”'° Specifically, the inmate listed
twelve deficiencies in the investigation and collection of evidence, noting that that its failure to
preserve potentially useful evidence occurred because “the police only collected evidence that
strengthened its case against Appellant, and were uninterested in exculpatory evidence.” “°
Stating that “[a]bsent a showing of bad faith, failure to preserve potentially useful evidence does
not constitute a denial of due process,” the Kentucky Supreme Court dismissed the allegations
and, without further discussion, held that the police’s alleged deficiencies did not rise to the level
of bad faith."
Preservation During Testing
Physical evidence recovered by Kentucky's state and local law enforcement agencies may be
transported to KSP Laboratory, a system of six crime laboratories located throughout Kentucky,
136 CALEA STANDARDS, supra note 22, at 83-1 (Standards 83.2.1) (“A written directive establishes guidelines and
procedures used for collecting, processing, and preserving physical evidence in the field”, and includes the
documented transfer of custody of physical evidence, while in the field.), 83-3 (Standard 83.3.2) (“A written
directive establishes procedures for submitting evidence to a forensic laboratory, which include: (a) identification of
the person responsible for submitting the evidence; (b) methods for packaging and transmitting evidence to the
laboratory; (c) types of documentation to accompany evidence when transmitted; (d) receipts to ensure maintenance
of chain of evidence; and (e) stipulation that laboratory results be submitted in writing”); KACP STANDARDS, supra
note 22 (“The agency has written procedures for the collection, identification, preservation, and transmittal of
evidentiary items”). For more information on CALEA and KACP, see Chapter Three on Law Enforcement.
157 CALEA STANDARDS, supra note 22, at 83-3 (Standard 83.2.7); see infra notes 155-156 and accompanying text
(listing CA LEA -accredited entities).
138 K SP EVIDENCE GUIDE, supra note 8, at 8-18.
139 Hensley v. Commonwealth, No. 2003-SC-000470-TG, 2005 WL 2674974, at *3 (Ky. Oct. 20, 2005). In fact,
there are other cases where law enforcement either lost or destroyed evidence prior to trial in a criminal case. See
supra note 88.
40" Hensley, 2005 WL 2674974, at *3.
141 Td. at *3. In another case, police lost a taped confession for almost twenty years, which contributed to the fact
that no one was ever charged for a 1986 murder. Stefanie Silvey Investigates: Lost Evidence, 14WFIE.com,
http://www. 14wfie.com/story/4073086/stefanie-silvey-investigates-lost-
evidence? clienttype=printable&redirected=true (last visited Aug. 3, 2011). For additional cases where police
misplaced, lost, or destroyed evidence in a criminal case, see Recommendation #1, supra note 89.
55
for testing. Three of the regional laboratories—Jefferson, Northem, and Western
laboratories— are equipped to provide forensic biology casework screening, and a fourth
laboratory, Central Laboratory, conducts all of the Commonwealth’s forensic DNA/biology
testing.
In 2002, the Kentucky General Assembly adopted written procedures and policies governing the
preservation of evidence during DNA testing, recognizing that “DNA evidence laboratory testing
and analysis procedure consumes and destroys a portion of the evidence or may destroy all of the
evidence if the [evidence] sample is small.” 144 “However, the Commonwealth does not require
KSP Laboratory to preserve biological material during testing. Instead, Kentucky adopted
statutory provisions that limit KSP Laboratory’s liability for the consumption or destruction of
biological evidence if it meets certain conditions.'”°
In addition, three of the six KSP laboratories are accredited by the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB), which, as noted in the
Factual Discussion, requires forensic laboratories to have written policies and procedures on the
testing, handling, preserving, and storage of evidence, including biological evidence.'°
According to the manager of KSP Laboratory, such policies, in practice, govern the operations of
‘2 KSP Forensic Laboratories, Ky. STATE POLICE, http://www. kentuckystatepolice.org/labs.htm (last visited Aug.
3, 2011); KSP EVIDENCE GUIDE, supra note 8, at 9-14.
“3 Western Lab, Ky. STATE POLICE, http://www.kentuckystatepolice.org/for_lab/westem.htm (last visited Aug. 3,
2011); Northern Lab, Ky. STATE POLICE, http://www.kentuckystatepolice.org/for_lab/northern.htm (last visited
Aug. 3, 2011); Jefferson Lab, Ky. STATE POLIcE, http://www.kentuckystatepolice.org/for_lab/jefferson.htm (last
visited Aug. 3, 2011); Central Lab, Ky. STATE POLICE, http://www.kentuckystatepolice.org/for_lab/central.htm (last
visited Aug. 3, 2010); Interview with Laura Sudkamp, supra note 30. Once the three regional laboratories conduct
screening for the presence of DNA or blood, the evidence is transported to KSP Central Laboratory for testing and
analysis. Interview with Laura Sudkamp, supra note 30. If evidence is received at one of the two laboratories
unequipped to conduct biological screening, the evidence will be automatically sent to KSP Central Laboratory. Id.
Ms Ky. REV. STAT. ANN. § 524.140(5) (West 2011); supra note 16 and accompanying text.
al Specifically, KSP Laboratory will not be liable for the consumption of evidence if it (a) “uses a method of
testing and analysis which preserves as much of the biological material or other evidence tested and analyzed as is
reasonably possible;” (b) “knows or reasonably believes” the evidence to be tested and analyzed will be consumed,
and, prior to conducting the testing or analysis, it notifies the court which ordered the testing and analysis, as well as
counsel for all parties that (1) the entire evidence sample may be destroyed; (2) the name of another laboratory that
may be able to perform testing and analysis in a less destructive manner, and the costs and advantages, including the
amount of the sample that may be saved, of using the other laboratory to conduct the alternative testing; and (3)
“follows the directive of the court with regard to the testing and analysis;” or (c) “knows or reasonably believes that
so much of the biological material or evidence may be consumed or destroyed in the testing and analysis that an
insufficient sample will remain for independent testing and analysis that the laboratory follows the procedure
specified in paragraph (b) of this subsection.” Ky. REV. STAT. ANN. § 524.140(5) (West 2011). Liability for
evidence destruction or tampering includes “[d]estruction of evidence in violation of this section [which] shall be a
violation of KRS 524.100.” Ky. Rev. STAT. ANN. §§ 524.140(6), 524.100(2) (“[t]ampering with physical evidence
is a Class D felony”), 422.285(6) (West 2011) (permitting “appropriate sanctions, including criminal contempt”).
The ABA Standards for Criminal Justice on DNA Evidence recommends that jurisdictions adopt statutory language
requiring, “[w]hen possible, a portion of the DNA tested and, when possible, a portion of any extract from the DNA
evidence should be preserved for further testing,” and other safeguards before the full consumption of evidence
during testing. ABA, ABA STANDARDS FOR CRIMINAL JUSTICE: DNA EVIDENCE 75 (Standard 16-3.4) (3d ed. 2007),
available at
http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/dna_evidence.authcheckdam.
pal.
46 See supra notes 26-27 and accompanying text.
56
all six of Kentucky’s crime laboratories regardless of their accreditation status.'“’ We note that
KSP Western Laboratory, which conducts forensic biology casework screening, is not accredited
by ASCLD/LAB, although, as of December 2010, an application is pending for all six
laboratories to become accredited by ASCLD/LAB’s Intemational Accreditation Program.’
For a further discussion of KSP Laboratory and ASCLD/LAB’s accreditation requirements,
please see Chapter Four on Crime Laboratories and Medical Examiner Offices.
Long-term Preservation of Evidence
Pursuant to KSP Laboratory policy, once forensic testing and analysis is complete, KSP
Laboratory retums all evidence either to the agency that submitted the evidence for testing or to
the relevant Commonwealth’s court.““° It appears that Kentucky law enforcement agencies,
rather than the Commonwealth's courts or prosecutors, are typically the entities that preserve and
store evidence in long-term facilities.’
Similar to requirements for the initial collection and preservation of evidence, CALEA and
KACP require accredited law enforcement agencies to ensure the security and control of
evidentiary items in the custody of the agency. Specifically, CALEA requires extensive written
policies and directives (a) establishing a written chain of custody report and guidelines for
packaging and labeling property prior to storage and “extra security measures for handling
exceptional, valuable, or sensitive items of property”; (b) ensuring that all evidence is stored
within secure areas and facilities with limited access for authorized personnel; (c) establishing
documented inspections, inventories and audits to be completed at regular intervals; (d) requiring
written records of the status of property and ensuring evidence is accounted for; and (e) ensuring
that “[fJinal disposition of . . . evidentiary property is accomplished within six months after legal
requirements have been satisfied. “151 KACP also requires accredited law enforcement agencies
to possess written procedures establishing
(a) a property system for the secure and proper recording, storage, classification,
retrieval, and disposition of all evidentiary, recovered, and found property under the
protective custody of the agency;'*
(b) [p]ersonnel not charged with the custody of property regularly perform inventories
and records audits of both property owned and used by the agency and property
placed within the protective custody of the agency; and
(c) [t]he property system of the agency incorporates special security and control
measures to safeguard all money, firearms, controlled substances, and high value
items within the protective custody of the agency.’
147 Interview with Laura Sudkamp, supra note 30. See also ASCLD/LAB-LEGAcY 2008 MANUAL, supra note 23,
at 14, 18-24; ASCLD/LAB Accredited Laboratories, ASCLD/LAB, http://www.ascld-lab.org/accreditedlabs.html#ky
(last visited Aug. 3, 2011).
148 Interview with Laura Sudkamp, supra note 30.
149 K SP LAB., QUALITY ASSURANCE MANUAL 83 (rev. effective Oct. 25, 2010) (on file with author).
See supra notes 21, 79-83 and accompanying text.
151 CALEA STANDARDS, supra note 22, at 84-1.
KACP STANDARDS, supra note 132, at 27.2 (requiring that department owned property is clearly marked and
that an OSHA approved ladder is available as necessary).
‘83 KACP STANDARDS, supra note 132, at 27.3 (requiring evidence inventories and inventory audit reports).
15¢ KACP STANDARDS, supra note 132, at 27.4.
57
As of November 2011, the Lexington Division of Police and the Taylor Mill Police Department
are accredited by CALEA’s Law Enforcement Accreditation Program.'*? The Kentucky State
Police (KSP) and the Newport Police Department in Newport, Kentucky, were previously
accredited by CALEA, but are not accredited as of November 2011.'° As of November 2011,
seventy-nine of over 400 law enforcement agencies in Kentucky are accredited by KACP and
three agencies are in an expired status.'°”
Although all law enforcement agencies previously or currently accredited by CALEA or by
KACP should have established written directives governing the preservation of biological
evidence, we were unable to confirm the existence of such policies in each of the accredited or
previously accredited agencies. We were also unable to determine whether the Commonwealth's
law enforcement agencies that have never been accredited by any entity have any policies or
procedures governing the preservation of biological or any other type of evidence either during
the initial collection at the crime scene or once the evidence is retumed after testing.
Furthermore, we were unable to determine the extent to which policies on the preservation of
biological evidence are enforced.
However, we note that Kentucky has taken steps to ensure that law enforcement agencies and
KSP Laboratory follow the standards pertaining to the handling, collection, preservation, and
storage of physical evidence, including biological evidence. The KRS incentivizes KSP
Laboratory to preserve as much material as possible when conducting DNA testing by limiting
its liability under certain conditions.'*® The Commonwealth also adopted provisions to make
destruction or tampering of evidence a Class D felony and providing that, in capital cases, courts
may institute sanctions if evidence is “intentionally destroyed.” °°
155 See Agency Search, CALEA ONLINE, http://www.calea.org/content/calea-client-database (last visited Nov. 21,
2011) (use second search function designating “Kentucky” as search criteria). The Lexington Division of Police,
accredited since Nov. 20, 1993, was last reaccredited on Nov. 20, 2010, and the Taylor Mill Police Department was
first accredited on Nov. 20, 2010. Id.
156 K SP received its initial CALEA accreditation in March 2003, after three years “assess[ing the] Kentucky State
Police and its programs, activities and operations in relation to the 443 CALEA standards, and develop and
implement a plan to move the agency in the direction to pursue and eventually achieve this national police
accreditation,” and was reaccredited in March 2006. Ky. STATE POLICE, 2003 ANNUAL REPORT 8, available at
www.kentuckystatepolice.org/pdf/ksp_anrep_03.pdf. However, KSP was not reaccredited by CALEA in 2009. See
Agency Search, CALEA ONLINE, http://www.calea.org/content/calea-client-database (last visited Nov. 21, 2011)
(use second search function designating “Kentucky” as search criteria). The Newport Police Department in
Newport, Kentucky received accreditation in 1998 and again in Nov. 2004, but also is not currently CALEA-
accredited. See Agency Search, CALEA ONLINE, http://www.calea.org/content/calea-client-database (last visited
Nov. 21, 2011) (use second search function designating “Newport” as search criteria).
157 Accredited Agencies, Ky. ASS'N OF CHIEFS OF POLICE,
http://www.kypolicechiefs.org/joomla/index.php?option=com_content&view=article&id=54&Itemid=64 (last
visited Nov. 3, 2011). Notably, the Kentucky State Police is not accredited by KACP. Id.
8" Ky. REV. STAT. ANN. § 524.140(5) (West 2011)
159 Ky, Rev. STAT. ANN. §§ 524.140(6) (“[dJestruction of evidence in violation of this section shall be a violation
of KRS 524.100”), 17.170(8) (“[a]ny person who tampers or attempts to tamper with any DNA sample collected
under this section or its container without lawful authority shall be guilty of a Class D felony”), 524.100(2) (West
2011) (“[t]ampering with physical evidence is a Class D felony”). In addition, KRS 422.285(6) permits the post-
conviction court to order “appropriate sanctions, including criminal contempt” if evidence is “intentionally
destroyed after the court orders its preservation.” Ky. REV. STAT. ANN. § 422.285(6) (West 2011).
58
There have been a number of instances where evidence sought for retesting during post-
conviction proceedings has been lost or unavailable. In the case of the now-exonerated
Louisville man who spent nine years in prison for homicide, attorneys for Edwin Chandler filed a
110-page federal lawsuit against Kentucky detectives and officers alleging, among other things,
that the police concealed and destroyed evidence of Chandler's innocence.’ The Kentucky
Innocence Project’s Coordinator noted that in the investigation of several Kentucky innocence
claims, it has been impossible to track down evidence, and law enforcement officials at times
refuse to confirm or deny the existence of evidence.’ In addition, there have been at least two
occasions where flooding or fire has caused extensive damage to law enforcement evidence
control/storage facilities that have hindered the Commonwealth’s preservation and storage of
evidence.
However, in at least one high-profile case, evidence was preserved. William Gregory, wrongly
convicted of rape and attempted rape, was released after officials tested hair evidence with a
“more sophisticated test” that was not available at the original trial.®* The inconsistent nature of
evidence preservation indicates that law enforcement agencies across the Commonwealth are not
properly equipped nor required to properly preserve evidence in death penalty cases.
Conclusion
The Kentucky Death Penalty Assessment Team applauds the Commonwealth the KSP
Laboratory for its establishment of written policies and procedures governing the collection,
handling, testing, and transport of biological evidence. Presumably, accredited law enforcement
agencies must have adopted such policies. However, to the extent that all law enforcement
agencies possess written directives governing the preservation of evidence, notable high-profile
cases indicate that there is inconsistent adherence to such policies. Therefore, the
Commonwealth of Kentucky is in partial compliance with this Recommendation.
The Kentucky Assessment Team recommends that the Commonwealth require all law
enforcement agencies involved in the investigation of potential capital cases to be accredited in
order to ensure that each agency has adopted and enforces written policies governing the
preservation of biological evidence. These policies should ensure that evidence is preserved for
as long as the person remains incarcerated. Furthermore, the Kentucky Law Enforcement
Council should require law enforcement training school curricula to include specific training on
the proper collection and preservation of biological evidence.‘
160 Jason Riley, Wrongful Slaying Conviction Spurs Suit, CouRIER-J. (Louisville, Ky.), July 8, 2010, at A1 (noting
that a beer bottle that had possibly exculpatory evidence disappeared for several years as investigators sought to
prove Chandler’ s innocence).
‘6 Interview with Randy Wheeler, supra note 36.
162 Td. See also notes 80-88, 139-141 and accompanying text.
163 Mark Shaver, Prosecutors Back DNA Test in Rape Case, COURIER-J. (Louisville, Ky.), May 5, 2000. For
additional cases where the Commonwealth was successfully able to locate missing or misplaced evidence, see
Recommendation #1, supra note 89.
164 See, eg., Ky. REV. STAT. ANN. § 15.334 (West 2011) (requiring the Kentucky Law Enforcement Council to
“approve mandatory training subjects to be taught to all students attending a law enforcement basic training course,”
59
D. Recommendation #4
Provide adequate funding to ensure the proper preservation and testing of
biological evidence.
KSP Laboratory is charged with providing forensic testing of biological evidence at the request
of the Commonwealth's law enforcement agencies, prosecutors, and public defense attorneys,
and then retuming the tested evidence to law enforcement.’ The Commonwealth’s law
enforcement agencies and KSP Laboratory receive funding through appropriations from the
Kentucky General Assembly and federal grants.
Funding for Testing
KSP Laboratory is funded primarily through appropriations from the Kentucky General
Assembly and federal grants.’ In fiscal year 2009-2010, KSP Laboratory’s operating budget
was $3,555,367.!°” As previously discussed, while KSP Laboratory provides the majority of
DNA testing for the Commonwealth in-house, it does not conduct all types of DNA testing, such
as Y-Str or mitochondrial DNA testing, paternity testing, and testing on any case involving a
person related to the laboratory staff.’ It also appears that KSP Laboratory does not have the
technological nor financial capabilities to conduct more advanced forms of DNA testing. Ina
2009 case, the Commonwealth violated a court’s order to preserve the evidence for testing by the
death row inmate. As a result, the private laboratory selected by the inmate could not perform
the more advanced testing requested by the inmate because the KSP Laboratory testing had
consumed too much of the available evidence.’ For more information about the funding of
KSP Laboratory, see Chapter Four Analysis Recommendation #2.
Through a federal grant from the National Institute of Justice (NIJ), the Commonwealth obtains
additional funds to perform DNA testing and other forensic services.'”’ For example, under the
Forensic DNA Backlog Reduction Program, which “assist{s] eligible States and units of local
government to reduce forensic DNA sample tumaround time, increase[s] the throughput of
public DNA laboratories, and reduce[s] DNA forensic casework backlogs,” the Commonwealth
to “develop and approve mandatory professional development training courses to be presented to all certified peace
officers,” and to delineate specific subjects that must be covered in law enforcement training curricula).
165 See supra note 146 and accompanying text. In certain circumstances, court clerks or prosecutors have retained
evidence for a period of time. See supra notes 82-83 and accompanying text.
a Interview with Laura Sudkamp, supra note 30.
Id.
168 Supra note 30 and accompanying text. KSP Laboratory can, but typically is not requested, to conduct testing on
behalf of the defense. See Chapter Four on Crime Laboratories and Medical Examiners.
16 Taylor v. Commonwealth, 291 $.W.3d 692, 694 (Ky. 2009).
1 The Convicted Offender and/or Arrestee Backlog Reduction Funding Awards Program was created to rapidly
accelerate the analysis of convicted offender samples collected by States in order to provide CODIS-compatible data
for all local, State, and national DNA databases. Convicted Offender and/or Arrestee DNA Backlog Reduction
Grant Program, DNA INITIATIVE, http://www.ojp.usdoj.gov/nij/topics/forensics/lab-operations/capacity/convicted-
offender-funding.htm (last visited Aug. 3, 2011).
60
received a total of $4,166,746 between 2004 and 2010.'"' Under the NIJ Convicted Offender
and/or Arrestee DNA Backlog Reduction Grant Program, KSP Laboratory received a total of
$784,382.' The NIJ provides funds under the Solving Cold Cases with DNA Program to
“states and units of local government . . . to identify, review, and investigate ‘violent crime cold
cases’ that have the potential to be solved using DNA analysis and to locate and analyze
biological evidence associated with these cases.”'”’ The Louisville-Jefferson County Metro
Government received $422,423 in 2008 under this grant.!”*
Kentucky also receives funds under the Paul Coverdell Forensic Science Improvements Grants
Program to improve the quality, timeliness, and credibility of forensic science services for
criminal justice purposes.'” Since 2003, the Commonwealth has received $1,328,424 under this
grant.
In addition, the Kentucky Innocence Project received $1,164,441 for post-conviction DNA and
forensics testing under the Bloodsworth Grant in 2008.'”’ Federal money awarded under this
grant “can be used to help defray the costs associated with post[-]conviction DNA testing of
certain crimes in which actual innocence might be demonstrated,” including reviewing post-
conviction cases and locating and analyzing relevant biological evidence associated.!”
Although the Kentucky Innocence Project does not seek testing on behalf of the
Commonwealth's death row inmates under this grant, like all federal funding, this grant defrays
the overall DNA testing costs burdening the Commonwealth.”
7 Forensic DNA Backlog Reduction Program, DNA INITIATIVE, http://www.dna.gov/funding/backlog-reduction/
(last visited Aug. 3, 2011); Backlog Reduction Funding Awards—State-by-State Details, DNA INITIATIVE,
http://www.0jp.usdoj.gov/nij/topics/forensics/lab- operations/capacity/backlog-reduction-detailed-
funding.htm#K entucky (last visited Aug. 3, 2011).
'™ Convicted Offender and/or Arrestee DNA Backlog Reduction Grant Program, DNA INITIATIVE,
http://www.ojp.usdoj.gov/nij/topics/forensics/lab-operations/capacity/convicted-offender-funding.htm (last visited
Aug. 3, 2011).
173" Solving Cold Cases with DNA, DNA INITIATIVE, http://www.dna.gov/funding/cold_case (last visited Aug. 3,
2011).
™ Cold Case — Funding: Awards by Jurisdiction, 2004-2010, DNA __ INITIATIVE,
http://www.0jp.usdoj.gov/nij/topics/forensics/investigations/cold-case/cold-case-award-details.htm#Kentucky (last
visited Aug. 3, 2011).
5 FY2009 Coverdell Report to Congress—Funding Table, NaT’L INST. OF JusTICE, DEP’T OF JUSTICE,
http://www.0jp.usdoj.gov/nij/topics/forensics/lab- operations/capacity/nfsia/2009-funding-table.xls (last visited Aug.
3, 2011); FY2008 Coverdell Report to Congress—Funding Table, NAT’L INST. OF JUSTICE, DEP’T OF JUSTICE,
http://www.0ojp.usdoj.gov/nij/topics/forensics/lab- operations/capacity/nfsia/2008-funding-table.xls (last visited Aug.
3, 2011). The Coverdell funding awarded to the Justice and Public Safety Cabinet is split between the Kentucky
State Medical Examiner Office (MEO) and the KSP Laboratory system. See, e.g., FY2009 Coverdell Report to
Congress— Funding Table, NAT'L INST. OF — JusTIcE, US. DEP’T OF — JUSTICE,
http://www.0jp.usdoj.gov/nij/topics/forensics/lab- operations/capacity/nfsia/2009-funding-table.xls (last visited Aug.
3, 2011) (noting that the grant will be shared between the Kentucky Office of the State Medical Examiner and The
Kentucky State Police Forensic Laboratories).
16 See Coverdell Forensic Science Improvement Grants Program, NAT’L INST. OF JUSTICE, U.S. DEP’T OF
JUSTICE, http://www.ojp.usdoj.gov/nij/topics/forensics/lab-operations/capacity/nfsia/welcome.htm (last visited Aug.
3, 2011).
7 Postconviction Testing, DNA INITIATIVE, http://www.dna.gov/funding/postconviction (last visited Aug. 3,
2011).
178
us Interview with Randy Wheeler, supra note 36.
61
Nonetheless, KSP Laboratory still experiences an extensive backlog in forensic testing and
analysis." As of December 2010, the backlog for DNA screening at KSP Westen
Laboratory,’ Jefferson Laboratory and Northem Laboratory, was forty-four cases, forty-six
cases, and sixty-five cases respectively.'** KSP Central Laboratory, which is the only location to
provide both screening and DNA testing, had a backlog of 608 cases, for a total backlog of 763
cases statewide.!®* In addition, KSP Central Laboratory has a backlog of 25,257 samples to be
tested for inclusion in the Commonwealth’s centralized DNA database,’ although testing is
currently on hold as KSP Laboratory determines which samples must be processed for inclusion
in the database. '®°
Testing at independent laboratories, however, is not subject to the backlogs that exist at KSP
Laboratory. DPA and other Commonwealth capital defense attorneys primarily utilize private
laboratories outside of Kentucky for DNA testing during trial and post-conviction
proceedings.'® Commonwealth courts may grant funding under KRS 31.185 to permit testing
on behalf on an indigent defendant at an independent laboratory, which may permit defendants to
request testing on a greater number of samples than permitted at KSP Laboratory.'*” Defendants
and, in limited circumstances, Commonwealth prosecutors, also may seek more advanced testing
at independent laboratories that is unavailable K SP Laboratory.'®*
Funding for Preservation
We were unable to determine the amount of funding provided to each of the Commonwealth's
over 400 law enforcement agencies. However, given the limitations expressed by law
enforcement and Commonwealth attomeys to support requests for the destruction of evidence, it
18 See Steve Tellier, Hundreds of Untested Rape Kits at Ky. Crime Lab: Experts Say Backlogs Can Delay
Prosecutions, Healing Process, KLKY.com, Nov. 20, 2009, http://www.wlky.com/r/21682041/detail.html (last
visited Aug. 3, 2011) (noting that as of November 20, 2009 “the Kentucky Crime Lab has a backlog of 813 cases of
all kinds involving blood or DNA evidence, including 136 cases from Louisville Metro Police. Of those statewide
cases, 355 are sexual assault cases, and 151 of those have been sitting idle for three months or more.”). To lessen
the backlog, KSP Laboratory has placed limitations on the services it provides by outsourcing paternity and
genealogical DNA testing, certain types of drug testing, and evidence where a suspect or victim may be related to an
analyst in the system. Interview with Laura Sudkamp, supra note 30. The cost of outsourced testing is included in
KSP Laboratory’s operating budget. Id.
181 KSP Wester Laboratory, which provides biology screening, is unaccredited as of August 8, 2011. Accredited
Labs, ASCLD/LAB, http://www.ascld-lab.org/labstatus/accreditedlabs.html #ky (last visited Aug. 3, 2011).
io Interview with Laura Sudkamp, supra note 30.
Id.
18 Tn 2002, the Kentucky General Assembly passed legislation permitting additional DNA collection for inclusion
in the centralized database for DNA identification records, which increased the number of samples KSP Laboratory
was dealing with from 500 annually to almost 5,000 annually. Ky. REV. STAT. ANN. § 17.175 (West 2002),
amended by 2002 Ky. Acts ch. 154, sec. 9 (effective July 15, 2002); Interview with Laura Sudkamp, supra note 30.
185 Interview with Laura Sudkamp, supra note 30. KSP Laboratory received 25,000 DNA samples within four
months. Id.
i Interview with Randy Wheeler, supra note 36.
Id.
‘8 Moore v. Commonwealth, Nos. 2008-SC-000860-MR, 2008-SC-000925-MR, 2008-SC-000957-MR, 2011 WL
2433737 (Ky. June 16, 2011) (circuit courts have discretion to order DNA testing to be conducted at independent
laboratories).
62
appears that some agencies do not have adequate resources to preserve evidence for as long as a
capital defendant or death row inmate remains incarcerated. !®°
Furthermore, although we know that law enforcement agencies are primarily responsible for
preserving evidence, Kentucky has no uniform requirements on the preservation of evidence.
Such a lack of regulations suggests that the Commonwealth does not dedicate sufficient
resources toward ensuring the preservation of biological evidence associated with criminal cases.
Conclusion
KSP Laboratory’s backlogs and its reliance on federal grants, the existence of statutes and
policies that limit how many pieces of evidence may be submitted for DNA analysis, and the fact
that KSP Laboratory does not provide more advanced types of DNA testing available at private,
out-of-state laboratories, indicate that the Commonwealth does not provide adequate funding to
ensure the proper testing of biological evidence.'®
However, while it appears funding is also inadequate to ensure the proper preservation of
biological evidence by the Commonwealth's law enforcement agencies, we do not possess
sufficient information to determine whether Kentucky is fully compliant with this
Recommendation.
18° See supra notes 72-95 and accompanying text (where prosecutors noted that the Commonwealth had to request
the destruction of evidence because it was unable to retain large items of evidence).
190 See, e.g., Ky. Rev. STAT. ANN. § 17.176(2)-(3) (West 2011) (limiting the number of items for testing to five);
KSP Las., FORENSIC BIOLOGY ANALYTICAL MANUAL 1-8 (effective Apr. 2, 2010) (Forensic Biology Case
Acceptance Policy).
63
64
CHAPTER THREE
LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
Of individuals proved innocent through DNA testing, eyewitness misidentification and false
confessions have been two of the leading causes of the wrongful convictions. Between 1989 and
2003, approximately 205 previously convicted “murderers” were exonerated nationwide,’ In
about 50 percent of these cases, there was at least one eyewitness misidentification, and 20
percent involved false confessions.”
Lineups and Showups
Numerous studies have shown that the manner in which lineups and showups are conducted
affects the accuracy of eyewitness identification. To decrease the risk of convicting the innocent,
while increasing the likelihood of convicting the guilty, the American Bar Association
promulgated best practices for promoting the accuracy of eyewitness identification.’ To avoid
misidentification, the lineup should include foils chosen for their similarity to the witness's
description,’ and the administering officer should be unaware of the suspect's identity and
should tell the witness that the perpetrator may not be in the lineup. Caution in administering
lineups and showups is especially important because flaws may easily taint later lineup and at-
trial identifications.°
Law enforcement agencies also should videotape or digitally record identification procedures,
including the witness's statement regarding his/her degree of confidence in the identification. In
the absence of a videotape or digital recorder, law enforcement agencies should photograph and
prepare a detailed report of the identification procedure.
Custodial Interrogations
Of the 205 murder exonerations nationwide, forty-one of the exonerees gave false confessions,
some of which were the product of police coercion.? Other reported reasons for false
confessions include deception, fear of physical harm, ignorance of the law, and lengthy
1 See Samuel R. Gross et al., Exonerations in the United States, 1989 Through 2003, 95 J. Crim. L. &
CRIMINOLOGY 523, 529 (2005).
2 Id. at 544.
3 ABA, BEST PRACTICES FOR PROMOTING THE ACCURACY OF EYEWITNESS IDENTIFICATION PROCEDURES, 2004
Ann. Mtg. (adopted Aug. 9-10, 2004), available at
http://www2.americanbar.org/sdl/Documents/2004_AM_111C.pdf.
4 “See C. A. Elizabeth Luus & Gary L. Wells, Eyewitness Identification and the Selection of Distracters for
Lineups, 15 L. & Hum. BEHAV. 43, 57 (1991). A foil is “a person or thing that gives contrast to another.” Foil,
COLLINS ENGLISH DICTIONARY (10th ed. 2011), http://dictionary.reference.com/browse/foil (last visited Nov. 9,
2011). In the context of lineup and photospread procedures, foils are the non-suspect participants.
5 See BRIAN L. CUTLER, EYEWITNESS TESTIMONY: CHALLENGING YOUR OPPONENT’S WITNESSES 13-17, 42-44
(2002).
See Gross, supra note 1, at 544.
65
interrogations.’ Researchers also have found a correlation between a suspect’s age and mental
health and the probability of a false confession.®
Electronically recording interrogations from their outset—not just from when the suspect has
agreed to confess— can help avoid erroneous convictions. Complete recording is on the increase
in this country and around the world. Those law enforcement agencies that make complete
recordings have found the practice beneficial to law enforcement.” Complete recording may
avert controversies about what occurred during an interrogation, deter law enforcement officers
from using dangerous and/or prohibited interrogation tactics, and provide courts with the ability
to review the interrogation and the confession.
Initial training of law enforcement is likely to become dated rapidly, particularly due to advances
in scientific and technical knowledge about effective and accurate law enforcement techniques.
It is crucial, therefore, that officers receive ongoing, in-service training that includes review of
previous training and instruction in new procedures and methods.
Even the best training and the most careful and effective procedures will be useless if prescribed
investigative methods cannot he effectively carried out.!° A ppropriate equipment, expert advice,
investigative time, and other resources should be reasonably available to law enforcement
personnel when law, policy, or sound professional practice calls for them. Thoroughness in
criminal investigations also should be enhanced by using the training standards and disciplinary
policies and practices of Peace Officer Standards and Training Councils,"’ and through the
priorities and practices of other police oversight groups.!? Further, jurisdictions should provide
adequate opportunity for citizens and investigative personnel to report serious allegations of
negligence or misconduct by law enforcement as well as forensic service providers.
7 Id. See also Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82
N.C. L. REV. 891 (2004).
8 See Gross, supra note 1, at 544-45.
5 See Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. CRIM. L. &
CRIMINOLOGY 1127 (2005).
10 See generally ABA STANDARDS FOR CRIMINAL JUSTICE, URBAN POLICE FUNCTION, Part VII (2d ed. 1980)
(Standards 7.1-7.11) (“Adequate Police Resources”), available at
hittp://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_urbanpolice.html.
11 "Peace Officer Standards and Training Councils are state agencies that set standards for law enforcement training
and certification and provide assistance to the law enforcement community.
12 These oversight groups include the U.S. Department of Justice, which is empowered to sue police agencies
under authority of the pattem and practice provisions of the 1994 Crime Law. 28 U.S.C. § 14141 (2005); Debra
Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 BUFF. CRIM. L. REV. 814
(1999). In addition, the Commission on Accreditation for Law Enforcement Agencies (CALEA) is an independent
peer group that has accredited law enforcement agencies in all fifty states. See COMM’N ON ACCREDITATION FOR
LAW ENFORCEMENT AGENCIES ONLINE, http://www.calea.org (last visited Nov. 14, 2011). Similar, state-based
organizations exist in many places, as do govermment-established independent monitoring agencies. Crime
laboratories may be accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation
Board (ASCLD/LAB) or the National Forensic Science Technology Center (NFSTC). AM. Soc’y OF CRIME LaB.
DIRECTORS/LAB. ACCREDITATION BD., http://www.ascld-lab.org (last visited Nov. 14, 2011); NAT’L FORENSIC Scl.
TECH. CTR., http://www.nfstc.org (last visited Nov. 14, 2011).
66
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
The Commonwealth of Kentucky has a complex system of law enforcement, with approximately
415 state, county, and local law enforcement agencies oftentimes sharing jurisdiction.’
Statewide jurisdiction to investigate criminal activity resides in the Kentucky State Police
(KSP)!* and countywide jurisdiction resides in an elected sheriff, an elected constable, or, in a
handful of counties, a county police force.'® At the local level, criminal investigations may be
conducted by municipal police forces or by university police forces (e.g., University of
Louisville Police Department). ‘‘
A. Law Enforcement Training
1. Statutory Training Requirements
Under Kentucky law, law enforcement officers must be certified by the Kentucky Law
Enforcement Council (KLEC).'’ The Kentucky Govemor is responsible for making
appointments to the twelve-member council, and KLEC’s membership also includes, as ex
officio, full-voting members, the Attorney General of Kentucky, the commissioner of the
Department of Kentucky State Police, directors of the Southern Police Institute of the University
of Louisville, the dean of the College of Justice and Safety of Eastern Kentucky University, the
president of the Kentucky Peace Officers Association, the president of the Kentucky Association
of Chiefs of Police, the president of Kentucky's Fraternal Order of Police, and the president of
the Kentucky Sheriffs’ Association.’®
In addition to its role certifying Commonwealth peace officers, KLEC is responsible for
“prescribling] standards for the approval and continuation of approval of schools at which law
‘8 Telephone Interview by Sarah Turberville with Lamy D. Ball, Executive Director, Ky. Law Enforcement
Council, Jan. 24, 2011 (on file with author). See, e.g., Ky. REV. STAT. ANN. § 16.060 (West 2011) (vesting each
KSP officer “with the powers of a peace officer” and granting each “in all parts of the state the same powers with
respect to criminal matters and enforcement of the laws relating thereto as sheriffs, constables and police officers in
their respective jurisdictions”).
Interview with Lary D. Ball, supra note 13.
15 Ky. Const. § 99; Ky. REV. STAT. ANN. § 70.540 (West 2011).
16 Ky. REV. STAT. ANN. § 95.019 (West 2011). Park rangers, responsible for maintaining order in Kentucky's
state parks, also may conduct criminal investigations whenever a crime takes place within their jurisdiction. Ky.
REV. STAT. ANN. § 148.056 (West 2011).
"The certification requirement applies to officers of KSP, city, county, and urban-county police officers, deputy
sheriffs, State or public university safety and security officers, and certain county detectives. Ky. REV. STAT. ANN.
§ 15.380(1)(a)-(d), (i) (West 2011). The certification requirements provided for in Kentucky law are numerous.
See, e.g., Ky. REV. STAT. ANN. § 15.382 (West 2011) (listing seventeen requirements for precertification status).
However, uncompensated special deputies for whose actions the appointing sheriff ultimately is responsible and
deputy sheriffs who provide security service to the courts are excluded from the certification requirement. Ky. REV.
Stat. ANN. §§ 15.380(1)(c), 70.045, 70.263 (West 2011). Elected sheriffs, elected constables, and the
Commissioner of KSP are exempt from the certification requirements. Ky. REV. STAT. ANN. § 15.380(5)(a)-(b), (f)
(West 2011); see also Ky. Const. §§ 99 (establishing county sheriff and county constable offices), 100-101
(establishing requirements for holding county sheriff and county constable offices).
"8 Ky. REV. STAT. ANN. § 15.315(1)-(2) (West 2011).
67
enforcement . . . training courses . . . shall be conducted,” including school curricula.’®
Kentucky state law further requires KLEC to “approve mandatory training subjects to be taught
to all students attending a law enforcement basic training course” and to “develop and approve
mandatory professional development training courses to be presented to all certified peace
officers.”"° The statute also empowers KLEC to “promulgate administrative regulations”
respecting “mandatory basic training and professional development training courses,””" but it has
not yet done so.” Finally, KLEC is required each year to “make an annual report . . . to the
Legislative Research Commission that details the subjects and content of mandatory professional
development training courses established during the past year and the subjects under
consideration for future mandatory training.”**
Kentucky law requires “[a]ny peace officers employed or appointed after December 1, 1998,
who have not successfully completed basic training at a school certified or recognized by
[KLEC],” to complete a minimum of 640 hours of basic law enforcement training.”4 State law
also requires, in order to maintain active certification status, forty hours of “annual in-service
training that has been certified or recognized by [KLEC].”” Finally, law enforcement agencies
may impose additional employment requirements beyond state statute and regulation.”°
2. Law Enforcement Training Institutions on Eyewitness Identifications and
Interrogations
While KLEC is responsible for approving minimum training standards, K SP and the Department
of Criminal Justice Training (DOCJT) primarily are responsible for law enforcement training in
the Commonwealth.” In addition, the law enforcement agencies of Kentucky’s two largest
municipalities, Lexington and Louisville, operate their own training academies: the Lexington
© Ky. REV. STAT. ANN. § 15.330(1)(a) (West 2011).
20 Ky. REV. STAT. ANN. § 15.334(1)-(2) (West 2011). While the statute delineates specific subjects that must be
covered, such as “[a]buse, neglect, and exploitation of the elderly, [or] [t]he dynamics of domestic violence,”
training curricula is not limited to these subject areas. Id.
2! Ky. REV. STAT. ANN. § 15.334(4) (West 2011).
22 Interview with Lamy D. Ball, supra note 13.
% Ky. REV. STAT. ANN. § 15.334(5) (West 2011).
4 Ky. Rev. STAT. ANN. § 15.404(1)(a) (West 2011). A separate statute also empowers the Department of
Criminal Justice Training to administer or approve the minimum 640 hours of basic law enforcement training for
“[aJll police officers and auxiliary police officers originally appointed or employed by a city, urban-county, or
charter county government.” Ky. REV. STAT. ANN. § 95.955 (West 2011).
% Ky. REV. STAT. ANN. § 15.404(2)(a) (West 2011).
2 Ky. REV. STAT. ANN. § 15.402 (West 2011).
27 Ky. REV. STAT. ANN. §§ 16.090 (West 2011) (authorizing the commissioner of KSP “to organize and maintain a
training school or schools for officers of the department, and in connection therewith to provide by administrative
regulation the course and conduct of such training”), 15A.070(1) (West 2011) (requiring DOCJT to “establish,
supervise and coordinate training programs and schools for law enforcement personnel”). See also Ky. REV. STAT.
ANN. § 16.080 (West 2011) (requiring the commissioner of KSP to “promulgate administrative regulations for the []
training . . . of officers of the department”). By statute, the commissioner of KSP is authorized to make available
KSP’s training facilities “to any local governing unit within [the] Commonwealth.” Ky. REV. STAT. ANN. § 16.090
(West 2011). According to Captain Phil Crumpton, the commander of the Kentucky State Police Academy, KSP’s
training facilities routinely are used for training non-KSP officers. Telephone Interview by Ryan Kent with Phil
Crumpton, Captain, Ky. State Police, Feb. 28, 2011 (on file with author).
68
Division of Police Basic Training Academy and the Louisville Metro Police Department
Training Academy.”®
a. KSP Academy
The KSP operates the Kentucky State Police Academy (Academy) located in Frankfort,
Kentucky.”® By state regulation, all KSP officers must complete training at the Academy “prior
to [their] appointment as officers.”*° The Academy’s basic training program runs twenty-three
weeks, !
KSP basic training on lineups and photospreads “suggests [five to seven] foils for a photospread
and [five] foils for a lineup,” “indicates that foils should be of the same sex, race, approximate
age, and basic physical traits [as the suspect],” and advises that “a video or photograph [of a
lineup] should be taken . . . but [] is not required.” Training materials also advise “that the
witness should never be told the suspect is in a lineup or photospread.”** Finally, the Academy
encourages recruits to, at a minimum, audio record witness interviews, custodial interrogations,
and suspect confessions “whenever possible.” **
b. DOCJT
DOCJT's primary training facility is located in Richmond, Kentucky, although DOCJT conducts
multiple training sessions throughout the Commonwealth and also makes available select law
enforcement courses online.*> According to the agency’s website, “[t]he DOCJT provides entry-
level and professional-development training for approximately 12,000 students each year,
including city, county, airport and state university police officers, sheriffs, deputy sheriffs,
coroners and law enforcement telecommunicators.”* Apart from “police communications
personnel,” no law enforcement official is required, by statute or by regulation, to complete
DOCJT’s training program.*” Nevertheless, DOCJT must, at minimum, approve the basic
training programs for “[aJll police officers and auxiliary police officers originally appointed or
employed by a city, urban-county, and charter county government,” including the programs
28 Interview with Captain Phil Crumpton, supra note 27.
*° Kentucky State Police Academy, Ky. STATE POLICE http://kentuckystatepolice.org/academy.htm (last visited
Nov. 15, 2011).
30 502 Ky. ADMIN. REGS. 45:105(2) (2010). See also Ky. DEP’T OF CRIMINAL JUSTICE TRAINING, 2011 TRAINING
SCHEDULE, available at http://docjtjus.state.ky .us/forms/ScheduleB ook/2011/Schedule%20Book_2011.pdf.
31 Interview with Captain Phil Crumpton, supra note 27.
2 Telephone Interview by Sarah Turberville with Angela Parker, Branch Commander, Ky. State Police, Oct. 28,
2010 (on file with author).
8d.
4d.
35 See Ky. DeEp’T OF CRIMINAL JUSTICE TRAINING, 2011 TRAINING SCHEDULE, available at
http://docjtjus.state.ky.us/forms/ ScheduleBook/2011/Schedule%20Book_2011.pdf.
30 Ky. DEP’T OF CRIMINAL JUSTICE TRAINING, http://docjtjus.state.ky .us/ (last visited Nov. 15, 2011).
History of DOCJT, Ky. Dep’T OF CRIMINAL JUSTICE TRAINING, http://docjtjus.state.ky.us/history.html (last
visited Nov. 15, 2011). Instead, a peace officer need only ensure that s/he has “successfully completed basic
training at a school certified by [KLEC] [] within one year of [his/her] appointment or employment.” Ky. REV.
Stat. ANN. § 15.404(1)(a) (West 2011).
69
administered by the Lexington Division of Police Training Academy and the Louisville Metro
Police Department Training Academy.
DOCJT’s Basic Training Academy “consists of a minimum of 768 hours of instruction over an
[eighteen]-week period,” including instruction on criminal investigations.” Course materials
obtained from DOCJT indicate that recruits receive specific guidance for conducting eyewitness
identifications and interrogations. Students are advised “that the minimum number for a line-up
or photo[spread] should [be] six participants or photos, ”40 and “that the ‘double[-]blind’ method
[wherein the officer who conducts the lineup or photospread is unaware of the identity of the
suspect] should be used when practicable.”** In addition, “DOCJT advise[s] [its] students that
agencies should videotape custodial interrogations” and “that if videotaping [] an interrogation is
not practical then [an] audio recording should take place.”
B. Law Enforcement Accreditation Programs
1. Kentucky Association of Chiefs of Police
The Kentucky Association of Chiefs of Police (KACP), established in 1971, offers an
accreditation program to law enforcement agencies in the Commonwealth that “meet commonly
accepted professional standards for efficient and effective operations.”*? As of January 2011,
seventy-six law enforcement agencies are accredited by KACP.“
% Ky. REV. STAT. ANN. § 95.955 (West 2011).
39503 Ky. ADMIN. REGS. 1:110 (2011). See also Ky. DEP’T OF CRIMINAL JUSTICE TRAINING, 2011 TRAINING
SCHEDULE 42, available at http://docjtjus.state.ky.us/forms/ ScheduleB ook/2011/Schedule%20Book_2011.pdf.
Ky. Dep’T OF CRIMINAL JUSTICE TRAINING, DEP’T OF CRIMINAL JUSTICE TRAINING CURRICULUM & TEACHING
CONTENT 9 (2010) (on file with author) [hereinafter DOCJT TRAINING CURRICULUM].
1 Td. at6.
© Id.ati7.
About Our Program, Ky. ASS’N OF CHIEES OF POLICE,
http://www.kypolicechiefs.org/joomla/index.php?option=com_content&view=article&id=56&Itemid=66 (last
visited Nov. 15, 2011).
“4 Accredited Agencies, Ky. Ass'N OF CHIEFS OF POLICE,
http://www.kypolicechiefs.org/joomla/index.php?option=com_content&view=article&id=54&Itemid=64 (last
visited Jan. 24, 2011). The following law enforcement agencies have been awarded certification by KACP:
Alexandria Police Department, Anchorage Police Department, Ashland Police Department, Audubon Park Police
Department, Beaver Dam Police Department, Benton Police Department, Berea Police Department, Boone County
Sheriff's Office, Bowling Green Police Department, Calvert City Police Department, Campbell County Police
Department, Campbellsville Police Department, Cincinnati/Northem Kentucky Intemational Airport Police
Department, Cold Spring Police Department, Covington Police Department, Danville Police Department, Dry Ridge
Police Department, Eastern Kentucky University Police Department, Eddyville Police Department, Edgewood
Police Department, Elizabethtown Police Department, Erlanger Police Department, Falmouth Police Department,
Florence Police Department, Fort Mitchell Police Department, Fort Thomas Police Department, Fort Wright Police
Department, Glasgow Police Department, Harlan Police Department, Hazard Police Department, Henderson Police
Department, Huntsbourne Acres Police Department, Independence Police Department, Jefferson County Sheriff's
Office, Jeffersontown Police Department, Kenton County Police Department, Kenton County Sheriff’s Office, the
Enforcement Division of the Kentucky Department of Alcoholic Beverages Control, Lakeside Park/Crestview Hills
Police Authority, Leitchfield Police Department, Lexington Division of Police, London Police Department,
Louisville Metro Police Department, Menifee County Sheriff's Department, Morehead Police Department,
Morehead State University Police Department, Murray Police Department, Murray State University Police
Department, Northem Kentucky Drug Strike Force, Northem Kentucky University Police Department, Newport
70
To obtain accreditation, an applicant agency must complete a self-assessment, which requires the
agency to “ensure compliance with all KACP [program] standards.”*° A team of independent
professionals subsequently is assigned “to verify that all applicable standards have been
successfully implemented.”“° Applicants for KACP accreditation consent to allow professional
law enforcement personnel conducting the inspection access to department records and personnel
“for purposes of assessment.”*” KACP’s accreditation program does not require adherence to
specific standards on the administration of eyewitness identifications or interrogations. *®
2. Commission on Accreditation for Law Enforcement A gencies
The Commission on the Accreditation for Law Enforcement Agencies (CALEA) is an
independent credentialing authority established by the four major law enforcement membership
associations in the United States.” Only two law enforcement agencies in Kentucky currently
are accredited by CALEA: The Lexington Division of Police and the Taylor Mill Police
Department.*” DOCJT also currently is accredited through CALEA’s Training Academy
Accreditation Program.”
To obtain accreditation, a law enforcement agency must complete a self-assessment as well as
undergo an on-site assessment.” During the on-site assessment, “[a] team of CALEA-trained
Police Department, Nicholasville Police Department, Oldham County Police Department, Oldham County Sheriff's
Office, Operation UNITE, Owensboro Police Department, Paducah Police Department, Paris Police Department,
Pendleton County Sheriff's Office, Radcliffe Police Department, Russellville Police Department, Saint Matthews
Police Department, Shelby County Sheriff's Office, Sheperdsville Police Department, Shively Police Department,
Somerset Police Department, Taylor Mill Police Department, University of Kentucky Police Department, University
of Louisville Police Department, Versailles Police Department, Villa Hills Police Department, Western Kentucky
University Police Department, Wilder Police Department, Williamstown Police Department, Wilmore Police
Department, and Winchester Police Department. Id.
4 Ky. Ass’N OF CHIEFS OF POLICE, ACCREDITATION PROGRAM ii (2009), available at
http://www.kypolicechiefs.org/joomla/attachments/095_ STANDARDS 2009 April 20_.doc [hereinafter KACP
ACCREDITATION PROGRAM].
‘4° Michael Bischoff, K.A.C.P. Law Enforcement Accreditation Program, para. 2, available at
http: //www.kypolicechiefs.org/joomla/attachments/095_What%20is% 20A ccreditation% 20&% 20Benefits.doc.
Ky. Ass’N OF CHIEFS OF POLICE, Kentucky Association of Chiefs of Police Accreditation Application 1,
available at http://www.kypolicechiefs.org/joomla/attachments/095_application%202009.doc.
48 KACP Standard 14.1 does require “[e]ach officer having responsibility for the enforcement of the criminal laws
in general [to] graduate from a basic training program certified by [KLEC] prior to the exercise of such
authority...” KACP ACCREDITATION PROGRAM, supra note 45, at 33. While KACP Standard 4.6 does require
accredited agencies to “adhere{] to an established system for the development and dissemination of written
directives,” the decision by an agency to promulgate eyewitness identifications- and interrogations-specific written
directives is discretionary. Id. at 17.
“© The Commission, COMM’N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES,
http://www.calea.org/content/ commission (last visited Nov. 15, 2011) (noting that CALEA was established by the
Intemational Association of Chiefs of Police, the National Organization of Black Law Enforcement Executives, the
National Sheriff’s Association, and the Police Executive Research Forum).
50 Client Database Search, COMM’N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES,
http://www.calea.org/ content/calea-client-database (last visited Nov. 15, 2011) (using “Search by Location”
function and designating “US” and “KY” as search criteria).
2d.
Ba Steps in the Accreditation Process, COMM'N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES,
http://www.calea.org/content/steps-accreditation-process (last visited Nov. 14, 2011).
71
assessors Visits the agency to determine compliance with [CALEA] standards, views agency
operations, conducts a public information session, and reports its findings to the Commission for
final determination of accreditation status.”*
The CALEA Standards “state what must be accomplished by [an] agency [seeking
accreditation], but generally allow wide latitude in determining how to achieve compliance with
each applicable standard.”™ Specific to eyewitness identifications, CALEA Standards 42.2.11
and 42.2.12 require the creation of written directives “describling] the procedures for using
photographic or physical line-ups in eyewitness identification [and] for using show-ups in
eyewitness identification.” Specific to interrogations, CALEA Standard 1.2.3 requires the
creation of a written directive “govern[ing] procedures for assuring compliance with all
applicable constitutional requirements, including [those related to] interviews (including field
interviews); interrogations; and access to counsel. "38 As all three of these standards are
mandatory for agencies accredited by CALEA, both the Lexington Division of Police and the
Taylor Mill Police Department must have written directives in accordance with these standards.
C. Law Enforcement Written Directives
While Kentucky law does not require law enforcement agencies to adopt specific standard
operating procedures on conducting eyewitness identifications and interrogations, some law
enforcement agencies within the Commonwealth have opted to promulgate internal regulations
governing these practices. For example, the Louisville Metro Police Department has adopted
written directives detailing agency requirements for conducting lineups, showups, and
photospreads and for conducting interrogations.°’ Kentucky law enforcement agencies must also
adopt similar written directives in order to obtain accreditation through CALEA.**
D. Constitutional Standards and Case Law Governing Eyewitness Identifications and
Interrogations
1. Eyewitness Identifications
8 Id.
54 COMM’N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, STANDARDS FOR LAw ENFORCEMENT
AGENCIES, THE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY ACCREDITATION PROGRAM xvii (5th ed.
2006) (emphasis omitted) [hereinafter CALEA STANDARDS].
58 Id. at 42-8, -9.
88 Id. at 1-4.
57 LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURES 8.15-8.19, 8.25 (2010) (on file with
author). Notably, “[t]he department conducts audio and/or video recorded interviews/interrogations of
suspects/arrestees involved in serious crimes . . . and other crimes at the discretion of the supervisor.” Id. at 8.25.5.
The Kentucky State Police acknowledges that its policies and handbooks “do not include written directives on
lineups, showups, or photospreads.” Interview with Angela Parker, supra note 32. KSP notes, however, that its
“investigative personnel are trained on the use of such techniques during basic training and subsequent in-service
and refresher training on investigations.” Id. Likewise, KSP written directives do not address how interrogations
should be conducted nor whether interrogations should be videotaped or audio recorded. Id
58 See CALEA STANDARDS, supra note 54, at 42-8, -9.
72
The constitutional protection of due process governs pretrial witness identifications.” As
described in Neil v. Biggers, suppression of an out-of-court pretrial identification is
constitutionally required where (1) the identification procedure employed by law enforcement
was unnecessarily suggestive, and (2) considering the totality of the circumstances, the
suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.°° A
court need only consider whether there was a substantial likelihood of irreparable
misidentification if it first determines that the pretrial identification procedures used by law
enforcement were unnecessarily suggestive.” Elaborating on the first prong of the Biggers test,
the Kentucky Supreme Court has held that “‘[aJn identification procedure is suggestive when it
tends to focus attention on a single individual.’”* Accordingly, the Court deems showup
procedures “inherent{ly] suggestive[].”° The Kentucky Supreme Court also has held that,
where law enforcement officials have lost pretrial lineup materials before a defendant has had an
opportunity to scrutinize those materials, the procedure shall be presumed suggestive.
If a court determines that an identification procedure was unnecessarily suggestive, the results of
that procedure still may be admitted into evidence so long as the court determines that the
identification had “sufficient independent indicia of reliability.”® In making this determination,
courts consider the following factors: (1) the opportunity of the witness to view the perpetrator
at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s
prior description of the perpetrator, (4) the level of certainty demonstrated by the witness at the
confrontation, and (5) the length of time between the crime and the confrontation. The
Kentucky Supreme Court also looks beyond these factors to “other evidence [that] tends to
corroborate the witness’ s identification.”°
2. Interrogations
While the Kentucky Supreme Court has acknowledged that “it would be ideal for [a] trial court
to have perfect evidence in the form of a recording when determining the voluntariness of a
confession” and that “widespread electronic recording [of custodial interrogations] has its
59 Neil v. Biggers, 409 U.S. 188, 196-97 (1972); Simmons v. United States, 390 U.S. 377, 384 (1968).
0. Biggers, 409 U.S. 188 at 196-99; Dillingham v. Commonwealth, 995 S.W.2d 377, 383 (Ky. 1999) (quoting
Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir. 1986)).
51 “Duncan v. Commonwealth, 322 $.W.3d 81, 95 (Ky. 2010).
82 Jd. at 96 (quoting United States v. Montgomery, 150 F.3d 983 (9th Cir. 1998)).
3 Fairrow v. Commonwealth, 175 S.W.3d 601, 609 (Ky. 2005); see also Moore v. Commonwealth, 569 S.W.2d
150, 153 (Ky. 1978).
51 Grady v. Commonwealth, 325 S.W.3d 333, 354 (Ky. 2010).
55 Oakes v. Commonwealth, 320 $.W.3d 50, 58 (Ky. 2010).
8 Fairrow, 175 S.W.3d at 608-09 (Ky. 2005); Biggers, 409 U.S. at 199-200. See also Savage v. Commonwealth,
920 S.W.2d 512, 513-14 (Ky. 1995); Wilson v. Commonwealth, 695 S.W.2d 854, 857 (Ky. 1985).
67 St. Clair v. Commonwealth, 140 S.W.3d 510, 551-52 (Ky. 2004) (citing Merriweather v. Commonwealth, 99
S.W.3d 448, 451-52 (Ky. 2003) (co-defendant’s admission that he and defendant entered witness's residence
corroborated witness's identification and ensured that “[defendant’s] due process rights were not violated”); Roark
v. Commonwealth, 90 S.W.3d 24, 29 (Ky. 2002) (defendant's possession of items stolen from witness’s bedroom
corroborated witness’ s identification).
68 Metcalf v. Commonwealth, 158 S.W.3d 740, 747 (Ky. 2005).
73
benefits,”® Kentucky does not require the videotaping or audio recording of interrogations or
confessions.”°
59 Brashars v. Commonwealth, 25 $.W.3d 58, 62 (Ky. 2000).
70 Id. at 61-63 (holding that the Constitution of Kentucky does not mandate electronic recording of custodial
interrogations); cf. Vanhook v. Commonwealth, No. 2003-SC-0003-TG, 2004 WL 868487, at *2 (Ky. Apr. 22,
2004) (accepting a trial court's finding regarding the voluntariness of a confession in the absence of videotaped or
audio recorded evidence). See also United States v. Dobbins, No. 96-4233, 1998 WL 598717, at *4 (6th Cir. Aug.
27, 1998) (holding that “federal law does not require that a state electronically record custodial interrogations and
confessions”); accord United States v. Smith, 319 F. App’x 381, 385 (6th Cir. 2009).
74
II, ANALYSIS
A. Recommendation #1
Law enforcement agencies should adopt specific guidelines for conducting lineups
and photospreads in a manner that maximizes their likely accuracy. Every set of
guidelines should address at least the subjects, and should incorporate at least the
social scientific teachings and best practices, set forth in the American Bar
Association’s Best Practices for Promoting the Accuracy of Eyewitness Identification
Procedures (which has been reproduced below, in relevant part and with slight
modifications).
There are no statewide statutes or rules governing the conducting of lineups and photospreads by
law enforcement. Therefore, we cannot be assured that all law enforcement agencies throughout
the Commonwealth of Kentucky have adopted guidelines or officially adhere to practices in
compliance with the subjects covered in the ABA Best Practices. However, law enforcement
agencies remain free to voluntarily promulgate such guidelines.
The Assessment Team focused on the guidelines and practices of the Kentucky State Police
(KSP), the Lexington Division of Police (LDP), and the Louisville Metro Police Department
(LMPD), as these agencies are the three largest law enforcement agencies within the
Commonwealth.” Of these agencies, however, only LMPD has promulgated specific guidelines
for conducting lineups and photospreads pertaining to some of the subjects addressed in ABA
Best Practices. KSP and LDP have not adopted such guidelines.
In the absence of specific agency guidelines, accreditation standards may offer some insight into
accredited law enforcement agencies’ practices for conducting lineups and photospreads.
Currently, seventy-six Kentucky law enforcement agencies receive accreditation from the
Kentucky Association of Chiefs of Police (KACP) and two receive accreditation from the
Commission on Accreditation for Law Enforcement A gencies (CALEA).”
Finally, the training of law enforcement also offers some insight into the practices of peace
officers with respect to lineups and photospreads. The Kentucky Assessment Team obtained or
sought training materials from Kentucky's four basic training academies, which taken together
account for the training of almost all law enforcement officers each year.”’ Although the
7 Interview with Larry D. Ball, supra note 13. Taken together, these three agencies account for approximately
2850 of the 8500 peace officers throughout the Commonwealth. Id.
™ Accredited Agencies, Ky. ASS'N OF CHIEFS OF POLICE,
http://www.kypolicechiefs.org/joomla/index.php?option=com_content&view=article&id=54&Itemid=64 (last
visited Nov. 14, 2011); Client Database Search, COMM’N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES,
http://www.calea.org/content/calea-client-database (last visited Nov. 14, 2011) (using “Search by Location” function
and designating “US” and “KY” as search criteria). The Assessment Team was unable to determine whether
Kentucky law enforcement agencies accredited by KACP or CALEA fully adhere to those programs’ respective
accreditation requirements, including those that require the accredited law enforcement agency to promulgate
guidelines related to eyewitness identifications and interrogations.
The Kentucky Assessment Team received materials or information on the basic training programs at the
Kentucky State Police Academy and the Department of Criminal Justice Training Basic Training Academy, but was
75
statewide requirements for that training do not specifically address identification and
interrogation procedures,“ both the Kentucky State Police Academy and the Basic Training
Academy established by the Justice and Public Safety Cabinet’s Department of Criminal Justice
Training (DOCJT) pertain to several of the subjects addressed within the ABA Best Practices.
1. General Guidelines for Administering Lineups and Photospreads
a. The guidelines should require, whenever practicable, that the person who
conducts a lineup or photospread and all others present (except for defense
counsel, when his or her presence is constitutionally required) should be
unaware of which of the participants is the suspect.
Although seventy-six Kentucky law enforcement agencies receive accreditation from KACP and
two receive accreditation from CALEA, neither KACP nor CALEA requires that the person who
conducts a lineup or photospread, in addition to all others present, be unaware of which of the
participants is the suspect. Accordingly, both KSP and LMPD acknowledge that no
departmental guideline imposes such a requirement.” A review of several cases in Kentucky
also reveals that law enforcement officers may know the suspect’s identity when presenting a
lineup or photospread to an eyewitness.” Finally, DOCJT’s Basic Training Academy “instructs
students that the ‘double[-Jblind’ method,” wherein the officer who conducts the lineup is
unaware of the identity of the suspect, “should be used when practicable.”””
In the absence of written guidelines requiring, when practicable, that the person who conducts a
lineup or photospread be unaware of which of the participants is the suspect, and in light of the
fact that Kentucky courts have allowed identifications into evidence when law enforcement
clearly knew who the suspect was during the procedure in-question, it appears that the
Commonwealth of Kentucky is not in compliance with this particular ABA Best Practice.
unable to obtain similar materials or information from the Lexington Division of Police Basic Training Academy
and the Louisville Metro Police Department Academy.
™ Larry D. BALL, ANN. REP. ON MANDATORY TRAINING FOR PEACE OFFICERS (Dec. 30, 2010) (on file with
author); LARRY D. BALL, ANN. REP. ON MANDATORY TRAINING FOR PEACE OFFICERS (Dec. 30, 2009) (on file with
author); LARRY D. BALL, ANN. REP. ON MANDATORY TRAINING FOR PEACE OFFICERS (Dec. 24, 2008) (on file with
author).
75 Interview with Angela Parker, supra note 32; Interview by Sarah Turberville with Don Burbrink, Major,
Louisville Metro Police Dep't, Sept. 27, 2010 (on file with author).
% See, e.g., Oakes v. Commonwealth, 320 S.W.3d 50 (Ky. 2010) (detective who had viewed surveillance video of
suspect assembled a five-foil photospread and presented it to the eyewitness/victim); Johnson v. Commonwealth,
No. 2009-CA-001879-MR, 2010 WL 5018513 (Ky. App. Ct. Dec. 10, 2010) (officer present during arrest of suspect
assembled a photospread and presented it to the eyewitness); Heam v. Commonwealth, No. 2005-SC-000708-MR,
2008 WL 3890035, at *15 (Ky. Aug. 21, 2008) (detective who “knew which man was the target in each [of two]
{photospread]{s]” presented the photospreads to the eyewitness).
™ DOCJT TRAINING CURRICULUM, supra note 40, at 6.
76
b. The guidelines should require that eyewitnesses be instructed that the
perpetrator may or may not be in the lineup; that they should not assume
that the person administering the lineup knows who is the suspect; and that
they need not identify anyone, but, if they do so, they will be expected to
state in their own words how certain they are of any identification they
make.
Kentucky law enforcement agencies are not required, through voluntary compliance with the
KACP or CALEA accreditation programs, to promulgate internal regulations that specifically
require such instructions be given to eyewitnesses viewing lineups or photospreads. However,
LMPD specifically has adopted a written directive, which provides that “[p]rior to viewing the
line-up, the officer conducting the line-up shall instruct the victim/witness on the proper viewing
of the line-up by advising him/her that . . . [t]he person who committed the crime may or may not
be in the group of individuals being presented” and that “[s/he is] not obligated to choose an
individual from the line-up.”” In practice, however, prior to an eyewitness viewing a lineup or
photospread, LMPD may notify him/her that a suspect has been “developed” in the case and asks
that the eyewitness view a lineup or photospread “to see if the suspect who committed the crime
is one of them.”
Although students at KSP’s Academy are not advised to affirmatively tell eyewitnesses that a
suspect may not be in a lineup, students are cautioned to avoid suggesting to those eyewitnesses
that a suspect is in a lineup or photospread.®’ By contrast, DOCJT advises basic training and
other students to notify eyewitnesses that “the suspect may or may not be in the lineup [or]
photoarray.”®’ It is unclear whether cadets at the KSP Academy or DOCJT training academies
are advised to instruct the eyewitness that they should not assume that the person administering
the lineup or photospread knows which individual is the suspect and the eyewitness need not
identify anyone. While we commend these law enforcement training entities for including these
recommendations in their peace officer training programs, the decision to so instruct
eyewitnesses remains at the discretion of law enforcement officials.
Furthermore, the Kentucky Supreme Court has held that implying or stating that a suspect is in a
lineup or photospread is only a factor to consider in determining whether a procedure was unduly
suggestive and, even if the procedure is deemed unduly suggestive, the identification still may be
admissible so long as there was not “a very substantial likelihood of irreparable
misidentification.”*”
B
79
80
al
LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURE 8.15.5 (2010) (on file with author).
Interview with Major Don Burbrink, supra note 75.
Interview with Angela Parker, supra note 32.
DOCJT TRAINING CURRICULUM, supra note 40, at 9.
82 Oakes, 320 S.W.3d at 56; Neil v. Biggers, 409 U.S. 188, 199-200 (1972). See also Fairrow v. Commonwealth,
175 S.W.3d 601, 608-09 (Ky. 2005); Heam v. Commonwealth, No. 2005-SC-000708-MR, 2008 WL 3890035, at
*16 (Ky. Aug. 21, 2008) (presenting a photospread to an eyewitness and asking the eyewitness to “identify the
person [s/he] saw” is not per se suggestive). See also Burrell v. Commonwealth, No. 2006-SC-000547-MR, 2008
WL 3890049, at *8 (Ky. Aug. 21, 2008) (informing an eyewitness, prior to administering a photospread, that an
arrest had been made was not suggestive where none of the photographs indicated that the individual pictured had
been placed under arrest).
77
Due to the absence of the guidelines, it appears that the Commonwealth of Kentucky only
partially adheres to this particular ABA Best Practice.
2. Foil Selection, Number, and Presentation Methods
a. The guidelines should require that lineups and photospreads should use a
sufficient number of foils to reasonably reduce the risk of an eyewitness
selecting a suspect by guessing rather than by recognition.
b. The guidelines should require that foils should be chosen for their similarity
to the witness’s description of the perpetrator, without the suspect's
standing out in any way from the foils and without other factors drawing
undue attention to the suspect.
Of the three largest law enforcement agencies within the Commonwealth, only LMPD has
promulgated specific guidelines mandating that lineups and photospreads use a select number of
individuals and that foils be chosen for their similarity to the eyewitness’s description of the
perpetrator.” Specifically, LMPD guidelines require that all lineups include a minimum of five
foils with the same general physical characteristics (e.g., race, sex, age, height, weight, hair
color, hair length, and physical build) as the suspect."* With respect to photospreads, LMPD
officers are advised to “[u]se at least five photos of individuals who are of the same sex and race
and are reasonably similar in age, height, weight and general appearance to the suspect.”®
In addition, both the KSP and DOCJT training academies recommend that an officer conducting
a lineup or photospread include a minimum of five foils.°° KSP’s Academy advises that “foils
should be of the same sex, race, approximate age, and [possess the same] basic physical traits [as
the suspect].”°” Similarly, DOCJT’s Basic Training Academy advises that all participants in a
lineup should be “of similar appearance” and that photographs presented in a photospread should
present individuals of the same sex, race, approximate age, height, and weight as the suspect.®®
DOCJT training materials also advise cadets not to “draw attention to any particular lineup
participant.” 89
Although the Kentucky Supreme Court has deemed single-participant showup procedures
inherently suggestive, it has not held the use of evidence resulting from these practices
unconstitutional.°° Thus, in Kentucky, there presumably is no constitutionally imposed
83 LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURES 8.15.5, 8.17.2 (2010) (on file with
author).
84 LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURE 8.15.5 (2010) (on file with author).
85 LOUISVILLE METRO POLICE DEp’T, STANDARD OPERATING PROCEDURE 8.17.2 (2010) (on file with author).
Standard Operating Procedure 8.17.2 also cautions LMPD officers to “[a]void using non-suspect photos that so
clearly resemble the suspect that a person familiar with the suspect might find it difficult to distinguish the suspect
from the non-suspects.” Id.
86 Interview with Angela Parker, supra note 32; DOCJT TRAINING CURRICULUM, supra note 40, at 10.
87 Interview with Angela Parker, supra note 32.
88 DOCJT TRAINING CURRICULUM, supra note 40, at 10-11. DOCJT’s training materials also urge that all photos
in a photospread should present similar backgrounds “to avoid prejudicing the witness.” Id. at 11.
Id. at 10.
0 See Fairrow v. Commonwealth, 175 S.W.3d 601, 608-09 (Ky. 2005) (“the totality of the circumstances, as
illustrated by the five Neil [v. Biggers] factors, indicates that the show-up identification did not violate A ppellant’s
78
minimum number of foils that must be present in a lineup or photospread. With respect to the
degree of similarity between the suspect and the other participants in a lineup or photospread, the
Kentucky courts have admitted into evidence an eyewitness’s identification at a lineup or
photospread in which some of the foils differed markedly from the suspect in terms of their
physical characteristics.”
In light of the foregoing, it appears that the Commonwealth of Kentucky partially adheres to this
ABA Best Practice.
3. Recording Procedures
a. The guidelines should require that, whenever practicable, the police should
videotape or digitally record lineup procedures, including the witness's
confidence statements and any statements made to the witness by the police.
b. The guidelines should require that, absent videotaping or digital video
recording, a photograph should be taken of each lineup and a detailed
record made describing with specificity how the entire procedure (from start
to finish) was administered, also noting the appearance of the foils and of the
suspect and the identities of all persons present.
Of the three largest law enforcement agencies within the Commonwealth, both the Lexington
Division of Police (LDP) and LMPD have promulgated specific guidelines addressing the
recording of eyewitness interviews, which may include statements given during the conducting
ofa lineup.” Specifically, an LMPD written directive states that “[vJideo recordings shall be
made of all line-ups” and that “[o]ptional audio recordings may also be made,” aa although there
is some basis for concluding that this policy is not followed in every instance.** Furthermore,
LDP departmental policy does not specifically address recording lineup and photospread
procedures, although investigators are required to “[iJnterview any known witnesses for details
of their observations, documenting the information in either a written or audio/visual
due process rights”). Although it sanctioned the use of the show-up procedure in Fairrow, the Kentucky Supreme
Court observed that “it would have been preferable for the police to have [used] an array of photographs to
overcome the inherent suggestiveness of the show-up procedure.” Id
51 For example, in Rhodes v. Commonwealth, the victim described her assailant as “a dark-skinned white man with
a dark goatee and dark hair.” Rhodes v. Commonwealth, No. 2007-CA-000701-MR, 2008 WL 2550761, at *2 (Ky.
Ct. App. June 27, 2008). While all five foils in the photospread were Caucasian males, only three participants—
among them, the suspect—had either a goatee or a combination of a goatee and other facial hair; furthermore, one
participant was entirely clean shaven. Id. at *3. Also, in King v. Commonwealth, an eyewitness described the
perpetrator of credit card fraud as wearing eyeglasses, yet only the suspect wore eyeglasses in the photos presented
to the eyewitness. King v. Commonwealth, 142 S.W.3d 645, 648-50 (Ky. 2004). A majority of the Kentucky
Supreme Court in King held that the photospread procedure was unduly suggestive. Id. at 651-52 (Johnstone, J.,
concurring) (agreeing with the dissent that the trial court should have suppressed the in-court identification but
finding the error harmless beyond a reasonable doubt); Id. at 652-53 (Stumbo, J., dissenting) (finding the
photospread procedure unduly suggestive and ultimately concluding that the trial court erred by admitting into
evidence the out-of-court and later in-court identifications).
2 Our legal research related to this Recommendation indicates that law enforcement agencies within the
Commonwealth predominately use the photospread, rather than the lineup, identification procedure.
83 LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURE 8.15.5 (2010) (on file with author).
See Interview with Major Don Burbrink, supra note 75 (replying that LMPD “require{s] that the line up be
photographed and that there be a letter and an interview as to what the [eyewitness] said in regards to identity”).
719
recording.”® Finally, the Kentucky State Police has not promulgated any comparable intemal
guideline.
The training materials obtained by the Kentucky Assessment Team from DOCJT indicate that
DOCJT’s Basic Training Academy “instructs students that it is preferred that all witness
identification procedures be recorded.”*° Absent this recording, students are “instruct[ed] . . . to
thoroughly document line-ups and photo[spread] identification procedures,” which includes but
is not limited to “noting all persons present during the procedure, noting the identity of all
persons used in the line-up or photo[spread] as foils, noting whether or not the particular witness
made an identification and their level of certainty, and noting the date, time and place of the
procedure.”*” As for KSP’s Academy, training recommends that eyewitness interviews and
statements be, at minimum, audio-recorded “whenever possible.” a
In light of the foregoing, it appears that the Commonwealth of Kentucky partially adheres to this
ABA Best Practice.
c. The guidelines should require that, regardless of the fashion in which a
lineup is memorialized, and for all other identification procedures, including
photospreads, the police shall, immediately after completing the
identification procedure and in a non-suggestive manner, request witnesses
to indicate their level of confidence in any identification and ensure that the
response is accurately documented.
KSP, LDP, and LMPD do not, as a matter of agency policy, request that eyewitnesses indicate
their level of confidence in any identification made during a lineup or photospread procedure.
Neither KSP nor LDP specifically discuss lineups and photospreads in their guidelines and
LMPD guidelines merely require that eyewitnesses “state whether one of the individuals shown
[in a lineup] is the perpetrator of the crime.”°? LMPD guidelines do require law enforcement
officers “to assess [an eyewitness’ s] level of confidence” and “ability to make an identification”
prior to conducting a photospread or one-on-one identification procedure, but this assessment
clearly is distinct from requesting that the eyewitness indicate his/her level of confidence in an
identification that s/he has just made.'°°
As previously described, DOCJT indicates that its Basic Training Academy “instruct[s] students
to thoroughly document line-ups and photo[spread] identification procedures,” which includes
“noting whether or not the particular witness made an identification and their level of
certainty.”'"! Although DOCJT should be commended for drawing its students’ attention to the
LEXINGTON DIV. OF POLICE, STANDARD OPERATING PROCEDURE 92-25/D (2010) (on file with author).
® DOCJT TRAINING CURRICULUM, supra note 40, at 14.
%” Id. at 15-16.
Interview with Angela Parker, supra note 32.
LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURE 8.15.5 (2010) (on file with author); see
also Interview with Major Don Burbrink, supra note 75.
100 See LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURES 8.17.2 & 8.16.2 (2010) (on file
with author).
101 DOCIT TRAINING CURRICULUM, supra note 40, at 16.
99
80
importance of noting these details, this recommendation does fall short of advising students to
actively request that an eyewitness indicate his/her level of confidence in any identification.
In the absence of written guidelines requiring that eyewitnesses be requested to indicate their
level of confidence in any identification made during a lineup or photospread procedure, it
appears that the Commonwealth of Kentucky does not adhere to this particular ABA Best
Practice.
4. Immediate Post-Lineup or Photospread Procedures
a. The guidelines should require that police and prosecutors avoid at any time
giving the witness feedback on whether he or she selected the “right man” —
the person believed by law enforcement to be the culprit.
As mentioned, LMPD has promulgated specific guidelines addressing lineup and photospread
procedures. With respect to lineups, an LMPD written directive advises that “[olfficers
administering or present at a line-up, shall not say or do anything, or otherwise provide feedback,
which would distinguish the suspect from other line-up participants.”'°? Likewise, with respect
to photospreads, an LMPD written directive advises that “[ol]fficers involved in [the
photospread] procedure shall not say or do anything, or otherwise provide feedback, which may
influence the judgment or perception of the victim/witness.”"° By contrast, neither KSP nor the
LDP has promulgated comparable internal guidelines. !°*
Furthermore, the training materials obtained by the Kentucky Assessment Team from DOCJT
indicates that the Department's Basic Training Academy, Advanced Individual Training Section,
and Legal Training Section each advise their students not to provide any feedback as to whether
the eyewitness has selected the “right man.”'° Students are instructed that their function merely
is to document any identification made by the witness and to retain all documentation of the
procedure,!%°
It appears, therefore, that the Commonwealth of Kentucky partially adheres to this ABA Best
Practice.
Conclusion
In light of the foregoing analysis, the Commonwealth of Kentucky only partially complies with
Recommendation #1.
102 LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURE 8.15.5 (2010) (on file with author).
103 LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURE 8.17.4 (2010) (on file with author).
104 Whereas KSP has no written directives addressed to this subject, LDP’s Standard Operating Procedure 92-25/D
only states that, “[iJf [a] suspect [to a criminal complaint] is unknown, [investigators should] gather as much
information as possible and attempt to establish the identity through witnesses, informants, news releases, etc.”
LEXINGTON DIV. OF POLICE, STANDARD OPERATING PROCEDURE 92-25/D (2010) (on file with author).
te DOCJT TRAINING CURRICULUM, supra note 40, at 16.
Id.
81
The Assessment Team recommends that Kentucky adopt as statewide policy the ABA Best
Practices for Promoting the Accuracy of Eyewitness Identification Procedures.
B. Recommendation #2
Law enforcement officers and prosecutors should receive periodic training on how
to implement the guidelines for conducting lineups and photospreads, as well as
training on non-suggestive techniques for interviewing witnesses.
Kentucky law generally mandates that “[alll peace officers with active certification status shall
successfully complete forty [] hours of annual in-service training that has been certified or
recognized by the Kentucky Law Enforcement Council.”'°’ Materials obtained from DOCJT
indicate that “continuing education to in-service students” covers “lineups, photo spreads and
interviewing techniques.” °° Likewise, the Bureau of Professional Standards within the
Lexington Division of Police (LDP) recently included, as part of its 2008 in-service training
program, a course on “Interview and Interrogation Training.” °°
In light of the absence of statewide requirements delineating the topics to be addressed during in-
service training of law enforcement, and due to the fact that prosecutors’ offices have limited
involvement in implementing lineup and photospread guidelines and interviewing eyewitnesses
during those procedures, we were unable to determine whether Kentucky is in compliance with
Recommendation #2.
C. Recommendation #3
Law enforcement agencies and prosecutors’ offices should periodically update the
guidelines for conducting lineups and photospreads to incorporate advances in
social scientific research and the continuing lessons of practical experience.
As mentioned in the Factual Discussion, KSP has not promulgated any internal regulations
regarding lineup and photospread procedures.’ Although the Kentucky Assessment Team
received information from LMPD that it revises its internal regulations regarding eyewitness
identification procedures “[a]s the law changes,” we were unable to ascertain whether all
Kentucky law enforcement agencies and prosecutors’ offices periodically update existing
guidelines to incorporate advances in social scientific research and the continuing lessons of
"7 Ky, REV. STAT. ANN. § 15.404(2) (West 2011).
108 DOCJT TRAINING CURRICULUM, supra note 40, at 17.
109 LEXINGTON DIV. OF POLICE, LEXINGTON DIVISION OF POLICE 2008 ANNUAL REPORT 16 (2009), available at
http://www. lexsc.com/documents/police/reports/L PD %202008%20A nnual% 20Report.pdf. The Assessment Team
was unable to obtain the specific content of this course from LDP’s Bureau of Professional Standards.
110 As a general matter, the Kentucky State Police “audits [and] updates continuously” its intemal regulations to
ensure compliance with Kentucky statutes and regulations as well as with those organizations from which KSP
receives accreditation. Ky. State Police, Gen. Order AM-B-8, at 4 (2010) (on file with author). See also Interview
with Angela Parker, supra note 32. Although this general order specifically mentions “compl[iance] with . . .
CALEA standards,” KSP no longer is accredited by CALEA but is, instead, accredited by KACP. Ky. State Police,
Gen. Order AM-B-8, at 4 (2010) (on file with author). Thus, it is inferred that KSP’s auditing and updating policy
principally is concemed with KACP’s, rather than CALEA’s, standards. While commendable, KSP’s auditing and
updating policy does not specifically address itself to “advances in social scientific research.”
82
practical experience.’!! Therefore, the Commonwealth of Kentucky only partially complies with
Recommendation #3.
The Commonwealth’s need to evaluate the effectiveness of existing practices and incorporate
advances in social science in to their guidelines is paramount, particularly given the lack of
uniformity among Kentucky’s law enforcement agencies. The case of Herman May provides an
example of how outdated practices affect a criminal investigation and may lead to wrongful
conviction.
Suspected of raping a University of Kentucky student in the early moming hours of May 22,
1988, May was identified by the victim during a simultaneous photospread conducted
approximately one month after the attack occurred.” The photospread included May’s
photograph and those of six foils, and all seven men had red or light-colored hair.’ According
to the trial video, the victim first “identified three of the seven men as possible attackers,” then
“narrowed [the] identification of her attacker to May[,] saying that she would never forget the
‘mean look in his eyes.’”'’* Partly on the basis of this identification, May received two
concurrent twenty-year sentences for the crimes of rape and sodomy. He served thirteen years of
that sentence before new tests of the DNA evidence’!> convinced the Franklin County Circuit
Court to order May’s release, the new evidence being of “such decisive value or force . . . that it
would probably change the result if a new trial should be granted.” 1"
May’s case demonstrates the limitations of human memory, underscoring the utility of guidelines
for conducting lineups and photospreads that incorporate the best available social science and
continuing lessons in the field.
D. Recommendation #4
Video-record the entirety of custodial interrogations of crime suspects at police
precincts, courthouses, detention centers, or other places where suspects are held for
questioning, or, where video-recording is impractical, audio-record the entirety of
such custodial interrogations.
11 Interview with Major Don Burbrink, supra note 75.
12" Beth Albright & Debbie Davis, Guilty Until Proven Innocent: The Case of Herman Douglas May, 30 N. Ky. L.
REV. 585, 588 (2003). Law enforcement focused their attention on May because he possessed a guitar and amplifier
that were stolen from the same neighborhood where the rape occurred at around the time that the rape occurred. Id.
at 587-88.
13" Td. at 588. Although law enforcement had some basis for suspecting May, a composite sketch of the assailant
based on the witness’s description to law enforcement did not match May. Id. Furthermore, witnesses alleged that
the victim variously described the assailant to them as having “chocolate brown” hair and “black or brown” hair—
hues notably in contrast with May’s light red hair—but the victim maintained that she never provided these
descriptions. Id. at 588, 588 n.18.
4 Td. at 588.
115 These new tests included nuclear and mitochondrial DNA testing of the biological samples contained within the
female rape kit. Id. at 597-99. Testing performed on the samples at around the time of May’s original trial was
inconclusive due to the small size of the samples and limits to the existing technology. Consequently, the only
scientific evidence submitted by the prosecution at that trial was dubious microscopic hair analysis of human hair
found at the crime scene. Id. at 592, 592 n.88.
U6 Tq. at 599 (internal quotations omitted).
83
None of Kentucky’s three largest law enforcement agencies require that the entirety of custodial
interrogations of crime suspects be video- or audio-recorded.!!7 LMPD guidelines do address
the video- or audio-recording of interrogations, but the decision to record any interrogation
remains “at the discretion of the supervisor.”’!® Furthermore, the two primary accrediting
entities within the Commonwealth— KACP and CALEA— do not require recording of custodial
interrogations. The commentary to CALEA Standard 1.2.3 merely advises that “[clonsideration
[] be given to audio/video recording [] custodial interrogations involving major cases,” but
KACP makes no mention at all of video- or audio-recordings. ”
On the other hand, the basic training programs at the KSP and DOCJT training acadmies advise
their students to, at minimum, audio-record custodial interrogations.'2? | However, DOCJT
explicitly directs its students to “[v]ideo tape only the confession portion of the interrogation”
and notes that “[i]t is alright to stop a statement, but when it resumes, [the law enforcement
officer taking the statement should] explain the reason for the break. vt
A review of Kentucky court cases indicates that law enforcement agencies may only video- or
audio-record the confession portion of the interrogation, rather than the entirety of the custodial
interrogation.'”” In other instances, law enforcement officers simply do not record the entirety of
their interviews with suspects, whether or not those suspects are in custody. !*°
"7 Interview with Angela Parker, supra note 32 (“Kentucky State Police written directives do not require [the]
videotap[ing] or audiotap[ing] of an interrogation.”); Interview with Major Don Burbrink, supra note 75 (answering
“No” to the question “Are [LMPD] law enforcement officers required to videotape or audiotape the entire
interrogation?”). The Lexington Division of Police (LDP) explicitly requires investigators to “‘document{] . . . in
either a written or audio/visual recording’ information leamed from interviews with ‘any known witnesses,’”
however, none of the guidelines obtained by the Assessment Team from LDP indicate that a comparable recording
requirement is imposed on investigators “[c]onduct{ing] interrogation[s] of suspect(s).” See LEXINGTON Div. OF
POLICE, STANDARD OPERATING PROCEDURE 92-25/D, at 1 (2010) (on file with author). Therefore, it is inferred that
LDP—as with KSP and LMPD— does not have such a policy.
8 LOUISVILLE METRO POLICE DEP’T, STANDARD OPERATING PROCEDURE 8.25.5 (2010) (on file with author).
According to Thomas P. Sullivan, the former chair of the Illinois Governor's Commission on Capital Punishment,
the Louisville Metro Police Department records a majority of its custodial interrogations, “from the Miranda
wamings to the end, ... in a defined class of felony investigations.” Thomas P. Sullivan, Recording Federal
Custodial Interviews, 45 AM. CRIM. L. REV. 1297, 1338 (2008). Sullivan also lists Elizabethtown Police
Department, Hardin County Sheriff, Jeffersontown Police Department, Louisville Police Department, Oldham
County Sheriff, and St. Matthews Police Department as law enforcement agencies within the Commonwealth that
record a majority of their custodial interrogations, although Louisville Police Department has not existed since
January 6, 2003 when the governments of Louisville and Jefferson County merged to form a single government
entity. Louisville/J efferson County Merger, LOUISVILLE METRO Gov’T,
http://www. louisvilleky.gov/yourgovernment/merger.htm (last visited Nov. 14, 2011).
19" CALEA STANDARDS, supra note 54, at 1-4.
120 Interview with Angela Parker, supra note 32 (adding that a “transcript, excerpts, or summary [of the
interrogation] may also be written into or attached to the case file’); DOCJT TRAINING CURRICULUM, supra note 40,
at 17.
21 DOCJT TRAINING CURRICULUM, supra note 40, at 19.
122 See, e.g., McClain v. Commonwealth, No. 2009-CA-000537-MR, 2011 WL 556197, at *1 (Ky. App. Ct. Feb.
18, 2011) (audio-recording of suspect’s custodial interrogation commenced only after suspect confessed to
burglarizing a liquor store); Turley v. Commonwealth, No. 2009-CA-001342-MR, 2010 WL 3186812, at *1 (Ky.
App. Ct. Aug. 13, 2010) (suspect was reminded of his prior Miranda waming “before [he] gav[e] a recorded
statement in which he admitted [sexually abusing his daughter,” suggesting that the audio-recording of suspect's
custodial interrogation commenced only after suspect indicated his intent to confess); Clem v. Commonwealth, No.
2006-SC-000145-MR, 2007 WL 4139639, at *1 (Ky. Nov. 21, 2007) (audio-recording of suspect's custodial
84
Therefore, the Commonwealth of Kentucky only partially complies with Recommendation #.
Nationwide, of the first 250 wrongful convictions later discovered due to DNA testing, forty
suspects confessed to crimes that they did not commit.!** Moreover, the evidence from these
cases indicates that a false confession need not be the result of either a pathological need for
fame or recognition on the part of the suspect or physically abusive law enforcement
interrogation practices. In many instances, innocent persons who are “anxious, fatigued,
pressured, or confused” and “subjected to highly suggestive methods of police interrogation”
may come to believe that they committed the crime and confess. !”°
Video- or audio-recording the entirety of custodial interrogations of suspects would help avert
convictions based on false confessions by making available features of a confession that are not
captured in a transcript and that may shed light on the confession’s veracity.'° Furthermore, full
recording better presents the context in which a confession occurred. Without it, prosecutors and
judges may never discover that a confession succeeded many hours of psychological
interrogation methods— methods known to have elicited false confessions from vulnerable
suspects in the past.!2”
In the Commonwealth, the practice of recording none or only part of custodial interrogations
frequently leads to disputes as to what transpired between law enforcement and suspects, and
these disputes themselves frequently degenerate into suppression hearing “swearing contests”
between interrogating officers and defendants.'® Because fine distinctions in language often
determine legal outcomes, the benefits of fully recording custodial interrogations become all the
interrogation commenced only after suspect, while not in custody, confessed). Accord Carlisle v. Commonwealth,
316 S.W.3d 892, 893-95 (Ky. App. Ct. 2010) (following a ninety-minute, recorded custodial interrogation, suspect
asked to speak with the investigating officer outside of the interrogation room, and this subsequent conversation was
not recorded; upon returning to the room, suspect confessed); Cummings v. Commonwealth, 226 S.W.3d 62, 64-65
(Ky. 2007) (suspended audio-recording of suspect’s custodial interrogation recommenced only after suspect began
to make incriminating statements); Nevitt v. Commonwealth, No. 2004-CA-001784-MR, 2006 WL 1112970, at *1
(Ky. App. Ct. Apr. 28, 2006) (audio-recording of non-custodial suspect commenced thirty-five minutes into
interview and only after suspect confessed to sexually abusing a minor).
23 See Quisenbeny v. Commonwealth, 336 S.W.3d 19, 32 (Ky. 2011) (no recordation of “brief exchange prior to
questioning,” during which time defendant alleged he requested counsel); Y enawine v. Commonwealth, No. 2003-
SC-0283-MR, 2005 WL 629007, at *3-4 (Ky. Mar. 17, 2005) (no recordation of first exchange between law
enforcement officers and defendant); White v. Commonwealth, No. 2007-CA-001477-MR, 2008 WL 2780269, at
*1 (Ky. App. Ct. July 18, 2008) (no recordation of non-custodial interrogation); Vanhook v. Commonwealth, No.
2003-SC-0003-TG, 2004 WL 868487, at *2 (Ky. Apr. 22, 2004) (no recordation of custodial interrogation).
2 See Brandon L. Garrett, Getting It Wrong: Convicting the Innocent, SLATE, Apr. 13, 2011,
http://www.slate.com/id/2291061/entry/2291064 (last visited Nov. 15, 2011).
125" See Saul M. Kassin, The Psychology of Confession Evidence, 52 AM. Psy CHOLOGIST 221 (1997).
126 Gail Johnson, False Confessions and Fundamental Fairness: The Need for Electronic Recording of Custodial
Interrogations, 6 B.U. Pus. INT. L. J. 719, 750 (1997). These features include the “precise syntax, diction, and
mar used by the [interrogation] participants.” Id.
See Saul M. Kassin, et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 L. & Hum.
BEHAV. 3, 5-7 (2010) (describing the problem of false confessions and the lawful interrogation practices that can
elicit them).
128 See, e.g., Vanhook, 2004 WL 868487, at *2 (Ky. Apr. 22, 2004) (dispute as to whether suspect invoked his right
to counsel in the absence of video- or audio-recording).
27
85
more apparent. 129 Absent these recordings, suspects, law enforcement, and the Kentucky courts
will continue to spend many hours and resources litigating issues that a fully recorded custodial
interrogation could more easily resolve.'*° Full recordings of custodial interrogations also would
foreclose the need to litigate in many cases whether a confession had been legally obtained.
Accordingly, the Commonwealth should require video-recording of the entirety of custodial
interviews, particularly in homicide investigations, in conformance with this Recommendation.
In drafting such a requirement, the Commonwealth should craft an appropriate remedy for law
enforcement s failure to record the entirety of the custodial interview.
E. Recommendation #5
Ensure adequate funding for the proper development, implementation, and
updating of policies and procedures relating to identifications and interrogations.
We were unable to determine whether the Commonwealth of Kentucky provides adequate
funding to ensure the proper development, implementation, and updating of procedures for
identifications and interrogations. Budgetary figures released by the Kentucky Office of State
Budget Director do indicate, however, that the Operations Division within the Kentucky State
Police received only 86% and 79% of its fiscal year 2011 and fiscal year 2012 budget requests,
respectively.*! These shortfalls may have an adverse impact on KSP’s ability to develop,
implement, and update its policies and procedures relating to identifications and interrogations—
significant in that KSP accounts for approximately 12% of all law enforcement officers within
the Commonwealth and has statewide jurisdiction to investigate homicide crimes. Likewise,
both for fiscal year 2011 and for fiscal year 2012, the Kentucky Department of Criminal Justice
Training received 94% of its budget requests.’ Finally, the Lexington Division of Police and
the Louisville Metro Police Department received approximately 100% of their fiscal year 2009-
2010 and fiscal year 2010-2011 budget requests.
129° See, e.g., Bradley v. Commonwealth, 327 S.W.3d 512, 518 (Ky. 2010) (noting the fine distinctions between the
statements “I need a lawyer,” which successfully invokes the right to counsel, and “I might need a lawyer,” which
does not); Yenawine v. Commonwealth, No. 2003-SC-0283-MR, 2005 WL 629007, at *3 (Ky. Mar. 17, 2005)
(holding that a suspect had not unambiguously and unequivocally invoked his right to counsel when stating “I might
need to speak with my lawyer about whether I should talk with you” and gave the officer the attomey’s business
card); Jackson v. Commonwealth, 187 S.W.3d 300, 306-07 (Ky. 2006) (noting the distinction between invoking the
right to have counsel present during a custodial interrogation and indicating a desire to contact an attorney merely
for a separate purpose); see also Kotila v. Commonwealth, 114 S.W.3d 226, 235 (Ky. 2003) (same); Dean v.
Commonwealth, 844 S.W.2d 417, 418-20 (Ky. 1992) (same).
130. See generally Lisa Lewis, Rethinking Miranda: Truth, Lies, and Videotape, 43 Gonz. L. REV. 199, 220-23
(2007) (recounting the many benefits for suspects, law enforcement, and the judiciary that arise from full video- or
audio-recordings of custodial interrogations).
131 Ky, OFFICE OF STATE BUDGET Dir., 2010-2012 BUDGET OF THE COMMONWEALTH 251 (2011), available at
http://www.osbd.ky.gov/NR/rdonlyres/4C 8577D 6-9974-490F-8748-CO6CEA C64E45/0/1012BOCV olumel. pdf.
For fiscal year 2011, KSP’s Operations Division requested $128,737,300 but received $110,910,600; for fiscal year
2012, KSP’s Operations Division requested $141,638,700 but received $111,451,900. Id.
132 Td. at 243. For fiscal year 2011, DOCJT requested $53,545,400 and received $50,522,500; for fiscal year 2012,
DOCJT requested $54,352,600 and received $51,035,300. See Interview with Lary D. Ball, supra note 13
(providing approximate force strength figures).
13 LEXINGTON-FAYETTE URBAN COUNTY Gov’T, ADOPTED BUDGET, FY 2009-2010, 146 (2009), available at
http://www lexingtonky.gov/Modules/ShowD ocument.aspx?documentid=7700 (for fiscal year 2009-2010, LDP
86
In addition to these budget figures, it is worth noting that the Commonwealth has established the
Kentucky Law Enforcement Foundation Program Fund (Fund) to assist t peace officers in the
Commonwealth to obtain training by means of a “cash salary supplement.” *~" In both fiscal year
2011 and fiscal year 2012, the Fund received 94% of its budget requests.!*°
While some Kentucky law enforcement agencies have received all or the vast majority of their
annual budget requests, the analyses pertaining to Recommendations #1 through # indicate that
these funds have not been sufficiently devoted to optimizing agency identification and
interrogation policies and procedures. Therefore, we cannot determine whether the
Commonwealth of Kentucky meets the requirements of Recommendation #.
F. Recommendation #6
Courts should have the discretion to allow a properly qualified expert to testify both
pretrial and at trial on the factors affecting eyewitness accuracy.
The Kentucky Supreme Court has held that Commonwealth trial courts have the discretion,
under Kentucky Rule of Evidence 702, to admit expert witness testimony regarding the
reliability of eyewitness identification.'*° The Commonwealth of Kentucky, therefore, complies
with Recommendation #6.
G. Recommendation #7
Whenever there has been an identification of the defendant prior to trial, and
identity is a central issue in a case tried before a jury, courts should use a specific
requested $56,499,510 and received $56,486,960); LEXINGTON- FAYETTE URBAN CNTY. Gov’T, ADOPTED BUDGET,
FY 2010-2011, 101 (2010), available at
http://www. lexingtonky.gov/Modules/ShowD ocument.aspx?documentid=12200 (for fiscal year 2010-2011, LDP
requested $59,753,340 and received $59,566,470). LOUISVILLE METRO Gov’T, FY 2009-2010 EXECUTIVE BUDGET,
66 (2009), available at http://www .louisvilleky.gov/NR/rdonlyres/1CD 108B5-B4C2-4447-9EE9-
952ED4EC5A 8B/0/ePolice.pdf (for fiscal year 2009-2010, the mayor recommended $152,513,700 and LMPD
received $152,023,700); LOUISVILLE METRO Gov’T, FY 2010-2011 EXECUTIVE BUDGET, 66 (2010), available at
http://www. louisvilleky.gov/NR/rdonlyres/6FB 75F29-316B-46C6-B059-0FC767EA 828B/0/ePolice.pdf (for fiscal
year 2010-2011, the mayor recommended $152,749,200 and LMPD received $152,749,200).
“Ky. Rev. STAT. ANN. § 15.470(1) (West 2011). See generally Ky. REV. STAT. ANN. §§ 15.410-15.515 (West
2011) (establishing the fund). The Kentucky Law Enforcement Foundation Program Fund (Fund) agency resources
are derived from property and casualty insurance premium surcharges that accrue pursuant to state law. See Ky.
REV. STAT. ANN. § 136.392 (West 2011).
185 Ky. OFFICE OF STATE BUDGET Dir., 2010-2012 BUDGET OF THE COMMONWEALTH 247 (2011), available at
http://www.osbd.ky.gov/NR/rdonlyres/4C 8577D 6-9974-490F-8748-C06CEA C64E45/0/1012BOCV olumel.pdf.
For fiscal year 2011, the Fund requested $52,229,900 but received $49,218,000 and for fiscal year 2012, it requested
$53,005,700 but received $49,723,300. Id.
‘86 Commonwealth v. Christie, 98 S.W.3d 485, 488 (Ky. 2002). Kentucky Rule of Evidence 702 reads: “If
scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.” Ky. R. Evip. 702.
87
instruction, tailored to the needs of the individual case, explaining the factors to be
considered in gauging lineup accuracy.
Across the United States, there have been numerous high-profile cases of exonerations where the
innocent were convicted based substantially upon inaccurate eyewitness testimony. It is reported
that “[e]lyewitness misidentification is the single greatest cause of wrongful convictions
nationwide, playing a role in more than 75% of convictions overtumed through DNA testing.”’®”
A well-crafted cautionary jury instruction can have, as many jurisdictions have recognized, some
positive impact in creating a more informed jury that is better able to reach a rational decision.'**
‘87 Eyewitness Misidentification, INNOCENCE PROJECT, http://www.innocenceproject.org/understand/Eyewitness-
Misidentification.php (last visited Nov. 14, 2011).
188 See generally Christian A. Meissner & John Brigham, Thirty Years of Investigating Own-Race Bias in Memory
for Faces, 7 PSYCHOL. PuB. POL’y & L. 3, 25 (2001). States that use a cautionary instruction as to the unreliability
of eyewitness identification testimony include Alabama, see Brooks v. State, 380 So. 2d 1012, 1014 (Ala. App. Ct.
1980) (“[a] requested identification instruction which deals realistically with the shortcomings and trouble spots of
the identification process should be given where the principle has not been covered by the court's oral charge”),
Califomia, see People v. Hall, 616 P.2d 826, 835 (Cal. 1980), overruled on other grounds by People v. Newman,
981 P.2d 98, 104 n.6 (Cal. 1999) (refusal to give a requested instruction “deal[ing] with identification in the context
of reasonable doubt” was error), Connecticut, see State v. Ledbetter, 881 A.2d 290, 318 (Conn. 2005) (requiring a
cautionary jury instruction waming the jury of the risks of misidentification if certain conditions are met), Georgia,
see Brodes v. State, 614 S.E.2d 766, 769 (Ga. 2005) (“[t]he creation of the pattern jury instruction regarding the
assessment of reliability of eyewitness identification testimony reflects the studied conclusion that judicial guidance
to the jury on the topic of eyewitness identification is warranted”), Kansas, see State v. Warren, 635 P.2d 1236, 1244
(Kan. 1981) (requiring a cautionary jury instruction waming the jury of the risks of misidentification if certain
conditions are met), Massachusetts, see Commonwealth v. Rodriguez, 391 N.E.2d 889, 302 (Mass. 1979) (“a
defendant who fairly raises the issue of mistaken identification might well be entitled to instructions [as to the
possibility of mistaken identification]”), Michigan, see People v. Storch, 440 N.W.2d 14, 16 n.1 (Mich. App. Ct.
1989) (quoting approvingly a cautionary jury instruction waming the jury of the risks of misidentification),
Minnesota, see State v. Burch, 170 N.W.2d 543, 553-54 (Minn. 1969) (“where requested by defendant's counsel,
we think the court should instruct on the factors the jury should consider in evaluating an identification and caution
against automatic acceptance of such evidence”), Montana, see State v. Hart, 625 P.2d 21, 31 (Mont. 1981) (“[a
cautionary jury instruction waming the jury of the risks of misidentification] may be proper, if not mandatory, in
certain cases”), New Jersey, see State v. Green, 430 A.2d 914, 919 (NJ. 1981) (requiring a cautionary jury
instruction waming the jury of the risks of misidentification if certain conditions are met); State v. Cromedy, 727
A.2d 457, 467 (NJ. 1999) (holding that “a cross-racial identification, as a subset of eyewitness identification,
requires a special jury instruction in an appropriate case”), North Carolina, see State v. Kinard, 283 S.E.2d 540, 543
(N.C. App. Ct. 1981) (“[i]f the evidence strongly suggests the likelihood of irreparable misidentification, the
identification issue would become a substantial feature of the case, and the trial judge is required, even in the
absence of a request, to properly instruct the jury as to the detailed factors that enter into the totality of the
circumstances relating to identification”), Pennsylvania, see Commonwealth v. Washington, 927 A.2d 586, 603-04
(Pa. 2007) (quoting approvingly a cautionary jury instruction waming the jury of the risks of misidentification),
Utah, see State v. Long, 721 P.2d 483, 492 (Utah 1986) (“trial courts shall give [a cautionary jury] instruction
whenever eyewitness identification is a central issue in a case and such an instruction is requested by the defense”).
See also State v. Smith, No. 48-2009-CF-005719-O (Fla. 9th Jud. Cir. 2011) (order permitting cautionary jury
instruction on gauging eyewitness identification accuracy). Many other jurisdictions use similar instructions, and it
is important to note, as the Georgia Supreme Court recently did in Brodes, that “level of certainty” as a reflection of
an eyewitness’s accuracy in his/her identification has been “‘flatly contradicted by well-respected and essentially
unchallenged empirical studies.’” Brodes, 614 S.E.2d at 770 (quoting Long, 721 P.2d at 491 (citing Kenneth A.
Deffenbacher, Eyewitness Accuracy and Confidence: Can We Infer Anything About Their Relationship?, 4 Law &
Hum. BEHAV. 243 (1980); R.C. Lindsay, Gary L. Wells & Carolyn M. Rumpel, Can People Detect Eyewitness-
Identification Accuracy Within and Across Situations?, 66 J. APPLIED PSYCHOL. 79, 80-82 (1981); Jacqueline M.
Bibicoff, Seeing is Believing? The Need for Cautionary Jury Instructions on the Unreliability of Eyewitness
Identification Testimony, 11 SAN FERN. V. L. REV. 95, 104 n.35 (1983))).
88
The Kentucky Assessment Team recognizes that implementation of this Recommendation
requires a change of existing Kentucky law since Kentucky courts have held that an instruction
explaining the factors to be considered in gauging lineup accuracy are not required and may
instead be considered “encompassed by the reasonable doubt instruction.”'*° Therefore, the
Commonwealth of Kentucky is not in compliance with Recommendation #7.
The Kentucky Assessment Team recommends that the Rules of Court should be amended to
provide a jury instruction, whenever identity is a central issue at trial, on the factors to be
considered in gauging eyewitness identification. However, when evidence is properly submitted
to the jury, the question of how much weight to give that evidence should be in the sole
discretion of the jury.'“°
H. Recommendation #8
Every law enforcement agency should provide training programs and disciplinary
procedures to ensure that investigative personnel are prepared and accountable for
their performance, respectively.
The Commonwealth statutorily mandates that law enforcement officers receive basic and
periodic training in order to retain their law enforcement certification. Specifically, KRS 15.404
requires that all peace officers successfully complete at least 640 hours of basic training at a
school certified or recognized by the Kentucky Law Enforcement Council (KLEC) and that all
peace officers with active certification complete forty hours of KLEC-approved annual in-
service training “appro riate to the officer’s rank and responsibility and the size and location of
his[/her] department.”"*! Furthermore, the Department of Criminal Justice Training, responsible
for training approximately 12,000 entry-level and in-service peace officers each year, is currently
accredited through CALEA’s Training Academy Accreditation Program.”
Both KACP and CALEA require the promulgation of agency guidelines governing disciplinary
procedures, and the contents of these guidelines must specifically address personnel conduct, the
procedures and criteria of the disciplinary system implemented to enforce that conduct, the role
of supervisory and command staff relative to disciplinary actions, and appeal procedures.“
189 Goodan v. Commonwealth, No. 2003-SC-0657-MR, 2003-SC-0658-MR, 2005 WL 1185184, at *2 (Ky. May
19, 2005) (quoting Evans v. Commonwealth, 702 S.W.2d 424, 424 (Ky. 1986) (“[a]n instruction on eyewitness
identification is not required in Kentucky”)); Brock v. Commonwealth, 627 S.W.2d 42, 43 (Ky. App. Ct. 1981);
Jones v. Commonwealth, 556 S.W.2d 918, 921 (Ky. App. Ct. 1977). Expert testimony on eyewitness identifications
was not offered in any of these cases. Goodan, 2005 WL 1185184; Brock, 627 S.W.2d 42; Jones, 556 S.W.2d 918.
140 See, e.g., 1-1 COOPER & CETRULO, KENTUCKY JURY INSTRUCTIONS §1.09 (“It is improper to instruct the jury on
the weight to be accorded to any evidence, this being a question left exclusively to their discretion.”).
Ml" Ky, REV. STAT. ANN. § 15.404(1)(a), (2)(a) (West 2011).
2 Ky. OFFICE OF STATE BUDGET Dir., 2010-2012 BUDGET OF THE COMMONWEALTH 247 (2011), available at
http://www.osbd.ky.gov/NR/rdonlyres/4C 8577D 6-9974-490F-8748-CO06CEA C64E45/0/1012BOCV olumel. pdf.
Client Database Search, COMM’N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES,
http://www.calea.org/content/calea-client-database (ast visited Nov. 14, 2011) (using “Search by Location” function
and designating “US” and “KY” as search criteria).
3 See KACP ACCREDITATION PROGRAM, supra note 45, at 29; CALEA STANDARDS, supra note 54, at 26-1 to -3.
89
Presumably, Kentucky law enforcement agencies accredited by KACP and CALEA have
adopted conforming guidelines, and materials received by the Kentucky Assessment Team from
KSP support this presumption. For example, KSP policy requires that every “[s]worm [o]fficer
of [KSP] has a personal responsibility for, and will be held strictly accountable for, adherence to
the agency standards of conduct.” “*
The case of one former LMPD detective demonstrates that agency’s disciplinary procedures at
work."® After an assistant Jefferson County attorney questioned a number of arrests made by
the detective, an administrative inquiry began that culminated in the detective’s firing in January
2011.'4° That inquiry found that the detective had “violated police department procedures
[sixty-eight] times, mostly involving the misuse of photographs intended to help witnesses
identify suspects.” 4”
The Kentucky Assessment Team applaud Kentucky’s statutorily mandated training requirements
and, as can be inferred from the information respecting accreditation, the promulgation by
seventy-six Kentucky law enforcement agencies of internal guidelines governing the disciplining
of peace officers. However, as approximately 415 state, county, and local agencies are
responsible for law enforcement throughout the Commonwealth, the Assessment Team was
unable to establish whether all law enforcement agencies have promulgated comparable internal
guidelines. '“*
Furthermore, anecdotal evidence casts doubt as to the effectiveness of disciplinary procedures in
ensuring that investigative personnel are held accountable for their performance. A particularly
egregious case concems that of another LMPD law enforcement officer. Over the course of
thirteen years, this officer received suspensions on seven occasions and reprimands on eight
occasions, which stemmed from a range of inappropriate conduct, including “multiple instances
of dishonesty.”'“° Yet despite this considerable misconduct, detailed in his 794-page internal
police file, he remains an officer with LMPD.' Ina separate case within the Commonwealth,
an Owensboro police officer fired for misconduct was hired shortly thereafter as a deputy with
the McLean County Sheriff's Department. Videotape evidence showed the officer verbally
taunting and striking an intoxicated man who, at the time, had been placed in handcuffs and was
in the process of being booked for public intoxication. In defense of this hiring decision, the
McLean County Sheriff offered: “This man needs another chance” and “I feel [this officer] is
M4" Ky. State Police, Gen. Order AM-E-3, at 1 (on file with author).
45 See Jason Riley & R.G. Dunlop, White Fires Detective after Probe, CourtER-J. (Louisville, Ky.), Jan. 7, 2011,
td
147 Td. A separate intemal criminal investigation determined that “there was insufficient evidence that [Detective]
Marlowe had broken the law,” although the prosecutor who reviewed that investigation “found ‘she performed her
job in a way that has raised questions about her competence’ and her compliance with police procedures.” Id.
Moreover, an independent analysis by the Courier-Journal of that internal criminal investigation found that “it was
Tiddled with factual errors, unsupported conclusions[,] and attempts by investigating officers to shift blame
elsewhere.” Id.
148 Interview with Lany D. Ball, supra note 13.
49 See R.G. Dunlop & Jason Riley, History of Misconduct Shadows Metro Officer, CouRIER-J. (Louisville, Ky.),
Aug. 1, 2010, at A1.
” Id.
90
more than competent, and he’s qualified.”!*! At a minimum, the rehiring of this officer as a
deputy sheriff reflects a disconcerting disconnect among Kentucky law enforcement agencies in
terms of the professional conduct expected of the Commonwealth’s peace officers.
Kentucky, therefore, only partially complies with Recommendation #8.
I, Recommendation #9
Ensure that there is adequate opportunity for citizens and investigative personnel to
report misconduct in investigations.
KRS 16.140 and KRS 16.192 govern the investigation and disciplining of KSP officers. Both
statutes permit “[aJny person” to file charges in writing against KSP personnel covered by the
statute.°? Whenever probable cause appears, the Commissioner of KSP is empowered to
“prefer”! or “present” those charges “against any officer whom he believes to have been
guilty of conduct justifying his removal or punishment.”’®° The bases for disciplinary action
include “inefficiency, misconduct, insubordination, and violation of law or of any administrative
regulation promulgated by the [Clommissioner [of KSP].”!°° Accordingly, KSP has adopted
intemal guidelines goveming the handling of these complaints. '°”
Furthermore, both KACP and CALEA accreditation program standards require agencies to
establish procedures respecting complaints received against the agency or an employee of the
agency. CALEA Standard 52.1.1 requires the adoption of a written directive mandating that “all
complaints against the agency or its employees be investigated,” including anonymous
complaints.!°® KACP’s requirements are not as specific. For example, KACP Standard 12.6
insists only that “[a] written directive establishes procedures for the reporting, investigation and
disposition of complaints received against the agency or employee of the agency,” which leaves
available the possibility that some complaints may not receive a partial or full investigation
under the promulgated guideline. '®
Apart from KSP and the other Kentucky law enforcement agencies accredited by KACP and
CALEA, the Kentucky Assessment Team could not determine whether the other several hundred
151 See James Mayse, Ex-OPD Officer Gets Job as McLean Deputy, MESSENGER-INQUIRER (Owensboro, Ky.), Oct.
13, 2010. The officer’s verbal taunts included both insults, “I think you're stupid,” and fighting words, “If you ask
me to, I'll take the cuffs off, you can come over and slap me if you want to.” Id.
82 Ky, REV. STAT. ANN. §§ 16.140, 16.192 (West 2011).
153 Ky, REV. STAT. ANN. § 16.140 (West 2011) (addressing the “[dliscipline and removal” of state troopers).
15 Ky. REV. STAT. ANN. § 16.192 (West 2011) (addressing the “[rlemoval, suspension, or reduction of grade or
pay” of agency employees other than state troopers).
a Ky. REV. STAT. ANN. §§ 16.140, 16.192 (West 2011).
°° Id.
157 See Ky. State Police, Gen. Order AM-E-2 (2010) (on file with author).
158 CALEA STANDARDS, supra note 54, at 52-1 (emphasis added).
159 KACP ACCREDITATION PROGRAM, supra note 45, at 30. KACP Standard 12.6 requires that the written directive
address, at a minimum, the following: “Categories of complaints; [alcceptance of complaints; [c]omplaint
documentation and report format; [p]erson [or] [pJosition responsible for investigation; [iJnvestigation process and
timeline; [e]mployee notification and rights; [p]rocedures for notifying complainant; [a]dministrative leave;
[d]isposition; [a]nnual review of complaints; and [mJaintenance of records and confidentiality.” Id.
91
law enforcement agencies within Kentucky provide adequate opportunity for citizens and
investigative personnel to report misconduct in investigations. Therefore, the Commonwealth of
Kentucky only partially complies with Recommendation #9.
92
CHAPTER FOUR
CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
The United States Supreme Court has long recognized the value of scientific evidence as one of
the most reliable and effective crime-solving tools known to the criminal justice system. ! As
forensic science disciplines advance into new fields and with increased reliance on forensic
evidence in criminal cases—including DNA, ballistics, fingerprinting, handwriting comparisons,
and hair samples—it is vital that forensic service providers, such as crime laboratories, coroners,
and medical examiner offices, produce expert, accurate results. However, as the National
Academy of Sciences recognized in its 2009 report on forensic science, “a number of factors
have combined in the past few decades to place increasing demands on an already overtaxed,
inconsistent, and under-resourced forensic science infrastructure.””
Despite the increased reliance on forensic evidence and those who collect and analyze it, the
validity and reliability of work done by unaccredited and accredited forensic analysts have
increasingly been called into serious question. While the majority of forensic service providers
strive to do their work accurately and impartially, a troubling number of laboratory technicians in
laboratories across the United States have been accused and/or convicted of failing to properly
analyze samples, reporting results for tests that were never conducted, misinterpreting test results
in an effort to aid the prosecution, testifying falsely for the prosecution, failing to preserve DNA
samples, or destroying DNA or other biological evidence. This has prompted internal
investigations into the practices of several prominent crime laboratories and technicians,
independent audits of crime laboratories, the re-examination of hundreds of cases, and the
conviction of innocent individuals in cases where the actual perpetrator has not been identified.
1 See, e.g., Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964) (“[A] system of criminal law enforcement, which
comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system
that depends on extrinsic evidence independently secured through skilled investigation.”); Davis v. Mississippi, 394
U.S. 721, 727 (1969) (“[F]ingerprinting is an inherently more reliable and effective crime-solving tool than
eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the “third
degree.”).
2 COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCI. CMTY. ET AL., NAT’L RESEARCH COUNCIL OF THE
NAT’L ACADEMIES, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 1-4 (2009),
available at http://www.ncjrs.gov/pdffiles |/nij/grants/228091.pdf [hereinafter NAS REPORT 2009]. The National
Academy of Sciences (NAS) was established by Congress in 1863 to advise the federal government on scientific and
technical matters. About the NAS, NAT’L ACAD. OF SCIENCES,
http://www.nasonline.org/site/PageServer?pagename=ABOUT_main_page (last visited June 20, 2011). In 2005,
Congress authorized the NAS to form a “Forensic Science Committee,” composed of members of the forensic
science community, the legal community, and scientists, charged with identifying the needs of the forensic science
community. NAS REPorT 2009, supra note 2, at 1-2. The committee heard testimony from over seventy expert
witnesses through a series of eight public hearings throughout 2008, “reviewed numerous published materials,
studies, and reports related to the forensic science disciplines, [and] engaged in independent research on the subject .
..” Id. at 2, App. B. The committee’s report, issued in 2009, set forth thirteen specific recommendations to
address “the most important issues now facing the forensic science community and medical examiner system . . . .”
Id. at 4.
93
In addition, the system of medicolegal death investigations throughout the United States is
fragmented, sometimes relying on elected officials without any medical training to determine the
cause and manner of sudden or unexplained deaths.* Like other forensic service providers, many
medical examiner and coroner offices suffer from inadequate funding, making it difficult to
recruit and retain qualified death investigation personnel.
The need for accuracy and reliability in forensic science necessitates that jurisdictions allocate
adequate resources to forensic service providers. In order to take full advantage of the power of
forensic science to aid in the search for truth and to minimize its enormous potential to contribute
to wrongful convictions, forensic service providers must be accredited, examiners and lab
technicians must be certified, procedures must be standardized and published, and adequate
funding must be provided. Further, jurisdictions should provide adequate opportunity for
citizens and investigative personnel to report serious allegations of negligence or misconduct by
law enforcement as well as other forensic service providers.
> NAS Report 2009, supra note 2, at 50.
94
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
Kentucky provides forensic science services* through the Kentucky State Police (KSP), the
Department of Criminal Justice Training (DOCJT), the Kentucky State Medical Examiner’s
Office (MEO), and the Commonwealth’s 120 elected county coroners.” KSP is the
Commonwealth’s statewide law enforcement agency, which controls and operates the KSP
Forensic Laboratory System.° The MEO employs forensic specialists who support the
Commonwealth’s county coroners and law enforcement officials in conducting medicolegal
death investigations.’
A. Forensic Science Laboratories*
1. Kentucky State Police Forensic Laboratory
Pursuant to the Kentucky Revised Statutes (KRS), KSP Laboratory provides forensic services,
free of charge, to federal, state, county, and municipal law enforcement agencies in Kentucky
and to the Department of Public Advocacy (DPA) in connection with official investigations in
criminal cases.? KSP Laboratory is a forensic laboratory system that consists of a “Central
Laboratory” in Frankfort, and five regional branches located throughout the Commonwealth in
4 “Forensic science” encompasses a broad range of disciplines, including general toxicology, biology/serology
(such as DNA analysis), firearms, blood pattern analysis, and crime scene investigation. NAS REPORT 2009, supra
note 2, at 6-7. Forensic science also includes “medicolegal death investigation,” typically conducted by a coroner,
medical examiner, forensic pathologist, and/or physician’s assistant, to determine the cause and manner of sudden,
unexpected, or violent deaths. Id. at 5 n.5.
Overview, Ky. Justice & PuB. SAFETY CABINET, http://www .justice.ky.gov/departments (last visited June 20,
2011). The Justice and Public Safety Cabinet, in which the MEO is housed, is statutorily mandated, among other
things, to “provide medical assistance to coroners investigating deaths; provide or contract for laboratory facilities
for performing autopsies and investigations . . . ; [and] provide for the keeping of reports of all investigations and
examinations ....” Ky. REV. STAT. ANN. § 72.220 (West 2011).
Ky. STATE POLICE, 2006 ANNUAL REPORT 1 (2006), available at
http://www.kentuckystatepolice.org/pdf/KSP_ANREP_06.pdf (Kentucky General Assembly established the
Kentucky State Police in 1948).
7 Ky. DEP’T OF CRIMINAL JUSTICE TRAINING, http://docjt.jus.state.ky.us (last visited June 20, 2011); Ky. OFFICE
OF THE STATE BUDGET DIR., BUDGET OF THE COMMONWEALTH OF Ky., FISCAL YEARS 2010-2012, 246 (Jan. 19,
2010), available at http://www.osbd.ky.gov/NR/rdonlyres/4C8577D6-9974-490F-8748-
C06CEAC64E45/0/1012BOCVolumel.pdf [hereinafter 2010-2012 BUDGET].
* Forensic laboratories provide a broad range of forensic services, with varying:
[T]echniques, methodologies, reliability, types and numbers of potential errors, research, general
acceptability, and published materials. Some of the forensic science disciplines are laboratory
based (e.g., nuclear and mitochondrial DNA analysis, toxicology and drug analysis); others are
based on expert interpretation of observed patterns (e.g., fingerprints, writing samples, toolmarks,
bite marks, and specimens such as hair).
NAS Report 2009, supra note 2, at 7.
° KSP Forensic LAB., PHYSICAL EVIDENCE COLLECTION GUIDE 5 (rev. effective Apr. 16, 2010), available at
http://www.kentuckystatepolice.org/for_lab/download/physical_evidence_collection_guide.pdf [hereinafter KSP
EVIDENCE GUIDE]; Telephone and Email Interviews by Paula Shapiro with Laura Sudkamp, Director, KSP Forensic
Lab., Jan. 13, 2010, Dec. 17, 2010, and Jan. 4, 2011 (on file with author). In practice, however, DPA routinely
elects to obtain independent forensic testing of DNA evidence at private laboratories located outside of Kentucky
and typically only submits evidence to KSP Laboratory for forensic testing roughly five to ten times a year.
Telephone Interview by Sarah Turberville & Paula Shapiro with Randy Wheeler, Project Coordinator, Ky.
Innocence Project, Ky. Dep’t of Pub. Advocacy, Jan. 11, 2011 (on file with author).
95
Cold Springs (Northern Laboratory), Louisville (Jefferson Laboratory), Ashland (Eastern
Laboratory), Madisonville (Western Laboratory), and London (Southeastern Laboratory).'°
KSP’s Central Laboratory provides a complete range of forensic laboratory services, including
Breath Alcohol Maintenance, Blood Alcohol, Toxicology, Solid Dose Drugs, Trace/Gunshot-
Residue/Arson, Firearms/Toolmarks/Imprint Evidence, DNA Casework and DNA Database,'!
Photograph, Polygraph, and Forensic Video Analysis.'* KSP’s regional laboratories provide
limited forensic services."
KSP Laboratory personnel are not active in the field; instead, local police detectives handle
evidence collection at crime scenes and then transfer evidence to KSP Laboratory analysts.'*
However, KSP Laboratory provides technical assistance on collection and preservation issues via
phone and email to law enforcement agents and coroners at crime scenes.'* Latent print
capabilities are not included in the services provided by KSP Laboratory and instead are
provided by the KSP Automated Fingerprint Identification Section (AFIS) in Frankfort.'®
KSP Laboratory publishes the Physical Evidence Collection Guide (KSP Evidence Guide),
available to all Commonwealth law enforcement agencies and the public on the KSP website,
which includes procedures for law enforcement officials on the collection, preservation, and
transportation of evidence to the Commonwealth’s six laboratories.’ In addition to the KSP
Evidence Guide, KSP Laboratory has developed manuals containing procedures or protocols for
quality assurance, handling, testing, and preserving evidence once the evidence is at KSP
Laboratory, training materials for all KSP Laboratory staff and technicians, and other related
documents. '*
1° 2010-2012 BUDGET, supra note 7, at 252.
For a more specific discussion on the testing and preservation of DNA evidence in Kentucky, please refer to
Chapter Two, Recommendation #2.
Central Lab, Ky. STATE POLICE, http://www.kentuckystatepolice.org/for_lab/central.htm (last visited June 20,
2011).
3 For a full description of the forensic capabilities of KSP’s regional laboratories, please see the Kentucky State
Police website. Forensic Laboratories, Ky. STATE POLICE, http://www.kentuckystatepolice.org/labs.htm (last
visited June 20, 2011).
4 Interviews with Laura Sudkamp, supra note 9; KSP EVIDENCE GUIDE, supra note 9, at 5; Sabrina Walsh, CSI:
Kentucky, Ky. Law ENFORCEMENT 26, 26 (Summer 2007) (explaining that “[d]etectives interview suspects, secure a
crime scene, and remove evidence for analysis at one of Kentucky’s six labs”).
‘5 KSP EVIDENCE GUIDE, supra note 9, at 5. KSP Laboratory does not have sufficient resources to hire evidence
collection personnel and instead relies on law enforcement agents to collect crime scene evidence. KSP EVIDENCE
GUIDE, supra note 6, at 2; Interviews with Laura Sudkamp, supra note 9.
16 KSP EVIDENCE GUIDE, supra note 9, at 5. AFIS and KSP’s Electronic Crime Section are not part of KSP
Forensic Laboratories and are not accredited. Interviews with Laura Sudkamp, supra note 9.
"7 KSP EVIDENCE GUIDE, supra note 9.
18 See, e.g., KSP FORENSIC LAB., CONTROLLED SUBSTANCES TRAINING MANUAL (rev. effective Nov. 2, 2010) (on
file with author); KSP FORENSIC LAB., CONTROLLED SUBSTANCES QUALITY MANUAL (rev. effective June 7, 2010)
(on file with author); KSP FORENSIC LAB., CONTROLLED SUBSTANCES ANALYTICAL MANUAL (rev. effective May 5,
2009) (on file with author); KSP FORENSIC LAB., LABORATORY ADMINISTRATIVE PROTOCOLS (rev. effective Apr.
26, 2010) (on file with author); KSP FORENSIC LAB., QUALITY ASSURANCE MANUAL (rev. effective Oct. 25, 2010)
(on file with author); Interviews with Laura Sudkamp, supra note 9.
96
KSP Laboratory employs a variety of forensic service practitioners in each of its six locations. id
As of December 17, 2010, KSP Laboratory employed over 100 staff, including forty-eight
chemists, twenty-five biologists, six firearm/toolmark examiners, and eleven breath alcohol
technicians, and fifteen supervisors who also conduct laboratory casework.”” KSP Laboratory
examiners, who perform testing on evidence and whose opinions and/or results are included in
laboratory reports, are available to provide expert testimony in court.”!
2. Laboratory Accreditation
To gain an understanding of the procedures and standards employed by Kentucky’s forensic
laboratories, it is instructive to review the requirements of the accreditation program through
which select branches of KSP Laboratory have obtained voluntary, national accreditation. While
the Commonwealth does not require forensic laboratories to be accredited, since 2005 three of
the six laboratories have obtained national accreditation through the Legacy Accreditation
Program (Legacy program) of the American Society of Crime Laboratory Directors/Laboratory
Accreditation Board (ASCLD/LAB).” The Legacy program is “a voluntary program in which
any crime laboratory may participate to demonstrate that its management, operations, personnel,
procedures, equipment, physical plant, security, and health and safety procedures meet
established standards.” The program requires crime laboratories to demonstrate and maintain
compliance with a number of established standards.*
Since April 2004, ASCLD/LAB has provided accreditation under both the Legacy program and
its International Accreditation Program, the latter of which is based on standards developed by
the International Organization for Standardization (ISO) and the International Electrotechnical
Commission (IEC), called the ISO/IEC 17025:2005 (International program).”> Effective April
'° Interviews with Laura Sudkamp, supra note 9. In the United States, a variety of forensic service practitioners
are employed at forensic laboratories, including scientists (some with advanced degrees) in the fields of chemistry,
biochemistry, biology, and medicine; laboratory technicians; crime scene investigators; and various law enforcement
officers. NAS REPORT 2009, supra note 2, at 5.
“Interviews with Laura Sudkamp, supra note 9. All supervisors at the five regional laboratories are chemists. Id.
Four of the Central Laboratory supervisors are chemists, two are biology supervisors, one is a firearms/toolmarks
supervisor, one is the Quality Assurance/Quality Control Supervisor, one is the Administrative Supervisor, and Ms.
Sudkamp, the Director. Id. There are also three KSP Laboratory Commanders (a KSP Major and two Lieutenants),
administrative staff, and photo laboratory staff. Id.
2! KSP EVIDENCE GUIDE, supra note 9, at 5.
ASCLD/LAB Accredited Laboratories, AM. Soc’y OF CRIME LAB. DiREcTORS/LAB. ACCREDITATION BD.,
http://www.ascld-lab.org/labstatus/accreditedlabs.html#ky (last visited June 20, 2011). KSP Northern Laboratory,
KSP Central Laboratory, and KSP Jefferson Laboratory have been accredited by ASCLD/LAB-Legacy since 2005.
Id.
23
22
AM. SOC’Y OF CRIME LAB. DIRECTORS, LABORATORY ACCREDITATION BOARD 2008 MANUAL 1 (2008) (on file
with author) [hereinafter ASCLD/LAB-LEGACY 2008 MANUAL].
4 Id. at 13-60. The only other entity that accredits crime laboratories in the United States is Forensic Quality
Services (FQS). NAS REPoRT 2009, supra note 2, at 2~16. No Kentucky entity is accredited by FQS. FORENSIC
QUALITY SERVICES, http://www.forquality.org/Accredited_Labs.html (ast visited Jan. 19, 2011).
ci Programs of Accreditation, AM. Soc’y OF CRIME LAB. DiRECTORS/LAB. ACCREDITATION BD.,
http://www.ascld-lab.org/programs/prgrams_of_accreditation_index.html (last visited June 20, 2011); INT’L ORG.
FOR STANDARDIZATION & INT’L ELECTROTECHNICAL COMM’N, ISO/IEC 17025: GENERAL REQUIREMENTS FOR THE
COMPETENCE OF TESTING AND CALIBRATION LABORATORIES vi (2d ed. 2005) (on file with author) [hereinafter
ISO/IEC 17025: GENERAL REQUIREMENTS].
97
1, 2009, ASCLD/LAB no longer accepts new applications for accreditation under the Legacy
program, and is “currently [] in the process of converting the accreditation of its U.S. laboratories
to meet the requirements of a recognized international standard, [namely,] ISO/IEC
17025:2005.”°° As of February 2011, KSP Laboratory has submitted an application for each of
its six laboratories to obtain accreditation under ASCLD/LAB’s International program.”’
a. ASCLD/LAB-Legacy Accreditation
The Legacy program requires crime laboratories to demonstrate and maintain compliance with a
number of established standards which are contained in the 2008 ASCLD/LAB-Legacy
Accreditation Board Manual (Legacy Manual).”*
i. ASCLD/LAB-Legacy Accreditation Standards and Criteria
The Legacy Manual contains various standards and criteria, each of which is assigned a rating of
“Essential,” “Important,” or “Desirable.””” In order to obtain accreditation, the “laboratory must
achieve 100% of the Essential, 75% of the Important, and 50% of the Desirable criteria.”*°
Essential criteria contained in the Legacy Manual include:
(1) Clearly written and well understood procedures for handling and preserving
the integrity of evidence, laboratory security, preparation, storage, security
and disposition of case records and reports, maintenance and calibration of
equipment and instruments, and operation of individual characteristic
databases;*!
(2) A training program to develop the technical skills of employees in each
applicable discipline and sub-discipline;*”
(3) A chain of custody record that provides a comprehensive, documented
history of each evidence transfer over which the laboratory has control;**
(4) The proper identification and storage of evidence to protect its integrity;**
26 Programs of Accreditation, AM. Soc’y OF CRIME LAB. DiRECTORS/LAB. ACCREDITATION BD.,
http://www.ascld-lab.org/programs/ prgrams_of_accreditation_index.html (last visited June 20, 2011); ABA,
RECOMMENDATION 100E, 2010 Ann. Mtg. (adopted Aug. 9-10, 2010), available at
www.abanet.org/leadership/2010/annual/docs/100e.doc (urging the federal government to provide funding and
resources sufficient to facilitate the accreditation of crime laboratories under standards such as IEC/ISO 17025).
ASCLD/LAB continues to “monitor and fully support” Legacy-accredited laboratories as well as to “accept
applications to add new accredited disciplines under the Legacy Program for those laboratories.” Programs of
Accreditation, Am. Soc’y OF CRIME LAB. DiRECTORS/LAB. ACCREDITATION BD., _http://www.ascld-
lab.org/programs/ prgrams_of _accreditation_index.html (last visited June 20, 2011).
27 Interviews with Laura Sudkamp, supra note 9.
28 ASCLD/LAB-LEGACY 2008 MANUAL, supra note 23, at 3, 69-84, app. 1-3.
2° Td. at 2. The Legacy Manual defines “Essential” as “[s]tandards which directly affect and have fundamental
impact on the work product of the laboratory or the integrity of the evidence”; “Important” as “[s]tandards which are
considered to be key indicators of the overall quality of the laboratory but may not directly affect the work product
nor the integrity of the evidence”; and “Desirable” as “[s]tandards which have the least effect on the work product or
the integrity of the evidence but which nevertheless enhance the professionalism of the laboratory.” Id.
%° ‘Td. at 2 (emphasis omitted).
*! Td. at 14.
° Id. at 18.
8 Td. at 20.
98
(5) A comprehensive quality manual;*>
(6) The performance of an annual review of the laboratory’s quality system;*°
(7) The use of scientific procedures that are generally accepted in the field or
supported by data gathered and recorded in a scientific manner;*”
(8) The performance and documentation of administrative reviews of all reports
issued;**
(9) The monitoring of the testimony of each examiner, at least annually; and
(10) A documented program of proficiency testing, measuring examiners’
capabilities and the reliability of analytical results. °
The Legacy Manual also contains Essential criteria on laboratory personnel qualifications,
requiring each examiner to have a specialized baccalaureate degree relevant to his/her crime
laboratory specialty, experience/training commensurate with the examinations and testimony
s/he provides, and an understanding of the necessary instruments, methods, and procedures. *!
Additionally, each examiner must successfully complete a competency test prior to assuming
casework and thereafter successfully perform annual proficiency exams.
Once the laboratory has assessed its compliance with the ASCLD/LAB criteria and submitted a
complete application, the Legacy inspection team will arrange and conduct an on-site inspection
of the laboratory.
ii. On-Site Inspection, Decisions on Accreditation, and the Duration of
Accreditation
The on-site inspection consists of a laboratory tour, interviews with analysts, and a review of
technical procedure manuals, training manuals, and case files, including all notes and data,
generated by each analyst.“* The inspection team also interviews all trainees to evaluate the
laboratory’s training program.*° At the conclusion of the inspection, the team meets with the
laboratory director to review the findings and discuss any deficiencies.*° While an ASCLD/LAB
“audit committee” evaluates the draft inspection report, the laboratory may correct any
deficiencies identified by the inspection team during the on-site assessment.*” Decisions on
*4 ASCLD/LAB-LEGACY 2008 MANUAL, supra note 23, at 20-22.
Id. at 24-25.
°° Td. at 28.
7 Id.
Sd. at 35.
* Id. at 36.
40 ASCLD/LAB-LEGACY 2008 MANUAL, supra note 23, at 37.
“Td. at 42-54.
Id. at 42-54. “Competency testing should include evaluation of knowledge of existing literature, written and/or
ral examinations, examination and identification of known and unknown material, and moot court.” Id. at 54.
Id. at 4.
“Id. at 5~7. See also id. at 85, app. 4.
Id. at 7.
‘ ASCLD/LAB-LEGACY 2008 MANUAL, supra note 23, at 7.
Id.
99
accreditation are made within twelve months of “the date of the laboratory’s first notification of
the audit committee’s consideration of the draft inspection report.”“*
The ASCLD/LAB Board of Directors (Board) will vote as to whether to grant full accreditation
to the laboratory or accreditation limited to specific disciplines or sub-disciplines.” If the Board
grants accreditation to the laboratory, it is effective for five years, “provided that the laboratory
continues to meet ASCLD/LAB standards, including completion of the Annual Accreditation
Audit Report and participation in prescribed proficiency testing programs.”°° On August 2,
2011, ASCLD/LAB granted the three accredited KSP laboratories a third six-month extension on
their five-year Legacy accreditation as these laboratories seek to complete the more stringent
International Accreditation Program application.”!
b. ASCLD/LAB-International Accreditation
ASCLD/LAB’s International program is a voluntary program “of accreditation in which any
crime laboratory . . . may participate to demonstrate that its technical operations and overall
management system meet ISO/IEC 17025:2005 requirements and applicable ASCLD/LAB-
International supplemental requirements.”** The ISO/IEC 17025:2005 standards, “developed
through technical committees to deal with particular fields of technical activity,”** “specif[y] the
general requirements for the competence to carry out tests and/or calibrations.”** The
ASCLD/LAB-International supplemental requirements contain additional “accreditation
requirements for forensic science testing laboratories for the examination or analysis of evidence
as it relates to legal proceedings.” The International program offers accreditation in forensic
science testing (including controlled substances, toxicology, trace evidence, biology,
firearms/toolmarks, questioned documents, latent prints, crime scene, and digital and multimedia
evidence) and forensic science calibration (toxicology, breath alcohol measuring, and
instruments).*°
i. ASCLD/LAB-International Accreditation Standards and Criteria
’ Id.at 8.
© Id. at 8.
*9 Td. at 1. “[L]aboratories seeking renewal are expected to remain in compliance with the requirements of the
accreditation program at all times.” Id. at 3.
5! See Letter from Ralph M. Keaton, Executive Director, ASCLD/LAB to Laura Sudkamp, KSP Laboratory
Director (Aug. 2, 2011), available at http://www.ascld-lab.org/cert/extensions/KSP_3rd_ext.pdf; Letter from Ralph
M. Keaton, Executive Director, ASCLD/LAB to Laura Sudkamp, KSP Laboratory Director (Jan. 26, 2011),
available at http://www.ascld-lab.org/cert/extensions/KSP-2nd_Ext.pdf; Letter from Ralph M. Keaton, Executive
Director, ASCLD/LAB to Major Ricki Allen, KSP Forensic Lab. (Oct. 3, 2007) (on file with author).
3 Am. Soc’Y OF CRIME LAB. Dirs./LAB. ACCREDITATION BD., ASCLD/LAB-INTERNATIONAL PROGRAM
OVERVIEW 3 (Sept. 11, 2010) (effective Oct. 1, 2010), available at http://www.ascld-lab.org/documents/AL-PD-
3041 .pdf [hereinafter ASCLD/LAB-INTERNATIONAL OVERVIEW].
53 NAS REPorT 2009, supra note 2, at 198.
4 Td. at 21; ISO/IEC 17025: GENERAL REQUIREMENTS, supra note 25, at vi.
55 ASCLD/LAB-INTERNATIONAL, 2006 SUPPLEMENTAL REQUIREMENTS FOR THE ACCREDITATION OF FORENSIC
SCIENCE TESTING LABORATORIES 2 (Jan. 24, 2006) (on file with author) [hereinafter INTERNATIONAL SUPPLEMENTAL,
REQUIREMENTS].
°° Td. at 5-7.
100
In order to be accredited through the International program, the forensic laboratory must meet all
of the ISO/IEC
17025:2005 requirements as well as the ASCLD/LAB-International
supplemental requirements applicable to the work conducted at that particular laboratory.°’. The
ISO/IEC requirements include maintenance of the following:
ie)
Q)
(3)
(4)
(5)
(6)
()
(8)
(9)
(10)
A quality manual that details the laboratory’s policies, systems, programs,
procedures, and instructions to the extent necessary to ensure quality results,
as well as a laboratory “quality policy statement”;**
Document control procedures;
A review system for requests, tenders and contracts:
Policies and procedures for handling complaints;°!
Procedures to ensure “quality policy, quality objectives, audit results,
analysis of data, corrective and preventative actions and management
review”;
Procedures for the “identification, collection, indexing, access, filing,
storage, maintenance and disposal of quality and technical records. . . .
includ[ing] reports from internal audits and management reviews as well as
records of corrective and preventative actions”;”
Periodic internal audits to ensure compliance with the requirements of the
management system and the ISO/IEC 17025:2005 standards, as well as
management reviews of both the laboratory management system, testing and
calibration activities to ensure effectiveness;
Maintenance of records of relevant competence, education, professional
qualifications, training, skills and experience of all staff performing
sampling, testing and/or calibration;
Monitoring, controlling, and recording all environmental conditions that may
have an impact on the results of the testing;
Instructions on the proper use and operation of all relevant equipment, as
well as on the handling and preparation of items for testing and/or
calibration; in addition, all instructions, standards, manuals and reference
materials should be kept up to date and made available to staff,”
60
37
Id. at 5. Additionally, “where applicable, laboratories performing DNA analysis will be assessed in accordance
with the requirements of the most current version of the Quality Assurance Standards for Forensic DNA Testing
Laboratories and the Quality Assurance Standards for Convicted Offender DNA Databasing Laboratories.”
ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 52, at 4.
58
ISO/IEC 17025: GENERAL REQUIREMENTS, supra note 25, at 3. The “quality policy statement” includes the
laboratory’s commitment to good professional practice and quality services, purpose of the management system,
requirement that all
personnel familiarize him/herself with the quality documentation, and the laboratory’s
commitment to comply with the ISO/IEC standards. Id. at 3-4.
59
Id. at 4-5.
oo Td. at 5.
ol Td. at 7.
Id.
Td. at 9.
64
Id. at 12.
° Id
7 Id
ISO/IEC 17025: GENERAL REQUIREMENTS, supra note 25, at 9-10.
101
(11) Objective evidence and calibration uncertainty measurement procedures;
(12) Data control policies, including measurement traceability programs and
procedures;
(13) Procedures related to the handling of test and calibration items, including
“transportation, receipt, handling, protection, storage, retention and/or
disposal of test and/or calibration items,” identification of testing and/or
calibrated items, as well as procedures for preventing deterioration, loss or
damage;”°
(14) Polices for assuring the quality of test and calibration results, including the
recording of such results;’! and
(15) Standards for reporting tested items.”
Once the laboratory has assessed its compliance with the International program criteria and
submitted a complete application, an ASCLD/LAB-International Assessment Team will conduct
an on-site inspection of the laboratory.”
ii. On-Site Inspection, Decisions on Accreditation, and the Duration of
Accreditation
In addition to the on-site inspection requirements included for Legacy accreditation, the
International accreditation inspection consists of observing demonstrations of specific testing
and/or calibration activities by laboratory personnel.” International program assessors review
the entire record of at least one case from each discipline in which the laboratory seeks
accreditation, taking into consideration “evidence integrity, quality of reagents used,
maintenance and calibration of the specific instruments used, etc.””> The assessors also
interview support personnel to evaluate the laboratory’s support capabilities. ’°
At the conclusion of the assessment, the inspection team will hold a closing meeting and provide
the laboratory director with a Preliminary Assessment Report and a Corrective Action Request.””
These reports list all non-conformities with the ISO/IEC 17025:2005 and ASCLD/LAB-
International Supplemental Requirements and include the necessary corrective action to be
taken.” Unlike Legacy accreditation, International accreditation requires laboratories to
conform to each of the program’s requirements, and laboratories must correct non-conformities
Td. at 14.
© Id. at 15-17.
ISO/IEC 17025: GENERAL REQUIREMENTS, supra note 25, at 19.
7! Td. at 20.
? Id. at 20-23.
ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 52, at 9.
Id. at 11-12 (noting that the assessment team will also meet with the administrator, such as a sheriff or chief of
police, who is in command over the laboratory).
Td. at 12.
7° Td. at 10-12.
7 Td. at 13-14.
8 Td. at 13-15. A three-member ASCLD/LAB Quality Review Panel will conduct a quality review of the
Assessment Team’s findings, generally within ten business days of the on-site assessment, and then issue a Full
Assessment Report, triggering the specified time period the laboratory has to complete any necessary corrective
action. Id. at 14-15.
102
either immediately prior to receiving accreditation or, under certain circumstances, within a year
of receiving accreditation.”
Once the applicant laboratory has completed the necessary corrective action, a Final Assessment
Report will be prepared and presented to the Board for review and determination of
accreditation.*° If the Board grants the laboratory accreditation, the International program
accreditation certificate will specify the field(s), discipline(s), and sub-discipline(s) in which
accreditation was received.*' Accreditation is granted for a period of five years, “provided that
the laboratory continues to meet all applicable accreditation standards, submits to scheduled on-
site surveillance visits; completes and submits an Annual Accreditation Audit Report; and
participates in prescribed proficiency testing programs.”*” If the laboratory wishes to maintain
accreditation, it must submit a new application every fifth year, thereby undergoing another on-
site assessment.
3. The Commonwealth’s Crime Scene Units
Crime scene units and law enforcement investigators from the Commonwealth’s law
enforcement agencies, rather than KSP Laboratory personnel, conduct on-scene forensic
collection and investigation and engage in various types of forensic testing that can be conducted
in non-laboratory settings. Across the United States, these non-traditional crime laboratories
“primarily conduct crime scene investigations, latent print and [ten]-print examinations,
photography, and bloodstain pattern analyses. A smaller number are involved in other forensic
functions, such as the analysis of digital evidence, footwear, tire track impressions, firearms,
forensic art, questioned documents, polygraph tests, and dental evidence.”* In Kentucky, this
testing is also conducted, in some cases, in the Commonwealth’s largest sheriff's departments,
police departments, and other law enforcement agencies.*° For example, in addition to
collecting forensic evidence for analysis by KSP Laboratory, the Commonwealth’s law
enforcement agencies, such as the Kentucky State Police, Louisville Metro Police Department
7 ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 52, at 13-14. For more on the requirements of
ASCLD/LAB-INTERNATIONAL accreditation, see Chapter Four, Analysis Recommendation #1, infra notes 164-182
and accompanying text.
80 ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 52, at 15-16.
SI Td. at 20.
© Id. at 19.
8 Id.
See supra notes 14-16 and accompanying text; NAS REPORT 2009, supra note 2, at 56-57. According to the
2009 NAS Report, “many forensic examiners do not work in a traditional crime laboratory. Often they work within
law enforcement offices called ‘identification units’ or ‘fingerprint units.” Id. at 63-64. For example, a 2004 study
conducted by ASCLD for the National Institute of Justice reported that “[two-thirds] of fingerprint identifications
take place outside the traditional crime laboratories. Insufficient data are available on the size and expertise of this
population of forensic examiners who are not employed in publicly funded forensic science laboratories.” Id. at 64.
55 NAS REPoRT 2009, supra note 2, at 64.
8° Telephone Interview by Paula Shapiro with Tim Carnahan, Detective, Boone County, Ky. Sheriff's Dep’t, Dec.
14, 2009 (on file with author); Telephone Interview by Paula Shapiro with Allen Dobson, Sergeant, Lexington Div.
of Police (Ky.), (Dec. 30, 2009) (on file with author); Units/Sections, LoulsvILLE METRO POLICE DEP’T,
http://www. louisvilleky.gov/MetroPolice/Unitstand+ Sections (last visited Nov. 29, 2010). There are over 415 law
enforcement agencies in Kentucky. Telephone Interview by Sarah Turberville with Larry D. Ball, Executive
Director, Ky. Law Enforcement Council, (Jan. 24, 2011) (on file with author). See also Chapter Three on Law
Enforcement Identifications and Interrogations.
103
and the Lexington Division of Police, may conduct AFIS fingerprint analysis, video and
computer forensics, transcription, polygraph testing, serial number restoration, and limited
ballistics testing.*”
B. Kentucky's Medicolegal Death Investigator System
Kentucky’s system of medicolegal death investigation utilizes both elected county coroners as
well as medical examiners working at the statewide level.** According to the Department of
Justice’s Bureau of Justice Statistics’ Special Report on Medical Examiners and Coroners’
Offices, Kentucky is one of eight states with a “decentralized death investigation system [that]
also [has] a State medical examiner office performing medicolegal duties.”*” In Kentucky,
coroners are called to crime scenes to determine whether the deceased should be sent to the
Kentucky State Medical Examiner’s Office (MEO) for autopsy.” The MEO has four offices
throughout the Commonwealth, employing medical examiners as well as forensic autopsy
specialists, histologists, and administrative staff.”! As of January 21, 2011, the Commonwealth
had 120 coroners and 313 deputy coroners.”
1. Coroners and Deputy Coroners
a. Election and Qualification Requirements for Coroners and Deputy Coroners
87 Interview with Sergeant Allen Dobson, supra note 86; LEXINGTON Div. OF POLICE,
http://www. lexingtonky.gov/index.aspx?page=97 (last visited June 20, 2011); Units/Sections, LoulsvILLE METRO
PoLice Dep’T, http://www.louisvilleky.gov/MetroPolice/Units+and+Sections (last visited June 20, 2011). Sgt.
Dobson stated that the Division has the capability to perform ballistics testing; however, it does not presently
employ staff capable of conducting such tests. Interview with Sergeant Allen Dobson, supra note 86.
Ky. Const. § 99; Ky. REV. STAT. ANN. § 72.210 (West 2011). See also NAS REPORT 2009, supra note 2, at 5
n.5.
8 U.S. DEP’T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT ON
MEDICAL EXAMINERS AND CORONERS’ OFFICES, 2004 1 (June 2007), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/meco04.pdf. The other seven states are Alabama, Arkansas, Georgia, lowa,
Montana, North Dakota, and Tennessee. Id. at 1.
°° Victoria Corderi, Dead Men Talking: Inside a Medical examiner’s office, Interview with Dr. Tracey Corey,
Chief Medical Examiner, MSNBC.com, Aug. 21, 2007,
http://www.msnbc.com/id/2036403 1/ns/dateline_nbe/print/1/displaymode/1098 (last visited June 20, 2011).
Autopsies are examinations and scientific testing of a deceased body and organs in order to determine cause of death
and performed by a physician licensed in pathology. Telephone Interview by Paula Shapiro with David Jones,
retired Executive Director, Ky. State Med. Examiner’s Office, Nov. 23, 2010 (on file with author); Forensic
Library: Autopsy Protocol, Ky. CORONERS ASss’N, http://www.coroners.ky.gov/NR/rdonlyres/D96EE84C-BB83-
41D1-96C5-311894E54F54/0/2009PandPSectionF .pdf (last visited June 20, 2011).
°! Kentucky Medical Examiner’s Office, Justice & PuB. SAFETY CABINET, http://justice.ky.gov/departments/me
(last visited June 20, 2011) (noting that the Commonwealth’s medical examiners are forensic pathologists, forensic
odontologists, and specialists in neuropathology, and forensic toxicology).
oe ey CORONERS ASS’N, 2011 CORONERS MASTER DIRECTORY (2010), available at
http://www.coroners.ky.gov/NR/rdonlyres/71D41E94-FF96-4BAA-9A68-EDB9B1012A0B/0/012411CORONERS
WEBSITEDIRECTORY .ttf [hereinafter Ky. CORONER Dir. 2011]. In 2009, there were 120 coroners and 272
deputy coroners. KY. OFFICE OF THE STATE MED. EXAM’R, 2009 CALENDAR YEAR ANNUAL REPORT, aVailable at
http://justice.ky.gov/NR/rdonlyres/3 CSFFEB5-DB22-4A F6-8 158-8706BF 14713D/0/ 2009MEAnnualReport.doc
[hereinafter 2009 MEO ANNUAL REPORT].
104
Kentucky’s Constitution mandates that each county within the Commonwealth elect a coroner
whose official duty is to investigate deaths under circumstances specified by KRS 72.025.”
Coroners hold office for four-year terms.” At the time of election, the coroner must be at least
twenty-four years of age, be a citizen of Kentucky, and have resided in Kentucky for at least two
years including one year preceding the election.” Coroners are permitted to appoint deputy
coroners, with fiscal court approval, as well as additional deputy coroners not to exceed one for
every 25,000 county inhabitants. ° Deputy coroners must hold a high school diploma or its
equivalent, and successfully complete the training described below.”
b. Powers and Duties of Coroners and Deputy Coroners
In Kentucky, coroners and deputy coroners have the full power and authority of peace officers as
they investigate the cause and manner of all deaths defined as “coroner’s cases,” including when
the death of a human being appears to be caused by homicide or violence.°* When investigating
a coroner’s case, coroners may perform a post-mortem examination and/or “request the
assistance of the district medical examiner and the [MEO], order an autopsy, and hold an
inquest.””? A post-mortem examination, according to the KRS, is a physical examination of a
deceased “by a medical examiner or by a coroner or deputy coroner who has been certified by
the [DOCJT] and may include an autopsy performed by a pathologist or other appropriate
scientific tests administered to determine cause of death.”!° Coroners and deputy coroners
typically request “an autopsy [to be] performed when deaths involve homicide, an inmate [] dies
in police custody or incarceration, an individual['s] whose death is suspicious, or deaths [are]
suspected to be due to injury of any type.”'°' In practice, Kentucky coroners and deputy
° Ky. COnsT. § 99; Ky. REV. STAT. ANN. § 72.025 (West 2011) (listing circumstances where a post-mortem is
required to be performed by a coroner); City of Lexington v. Hager, 377 S.W.2d 27, 30 (Ky. 1960) (noting that “the
coroner by constitutional designation is a county officer. The services he performs have historically and
traditionally been performed by such an officer.”); Frequently Asked Questions, Ky. CORONERS ASS’N,
http://coroners.ky.gov/faq.htm (last visited June 20, 2011).
°4 Ky. Const. § 99.
°° Ky. Const. § 100.
6 Ky. REV. STAT. ANN. §§ 64.185(6), 72.010 (West 2011). As of January 21, 2011, every county, except for
Robertson and Wolfe Counties, had at least one deputy coroner. KY. CORONER Dir. 2011, supra note 92. Jefferson
and Fayette counties have the most deputy coroners with twelve and seven respectively. Id.
°7 Ky. REV. STAT. ANN. § 72.415(2) (West 2011).
8 Ky. REV. STAT. ANN. § 72.415 (West 2011). For a full list of the circumstances identified as “coroners? cases,”
see KRS 72.025. Ky. REV. Stat. ANN. § 72.025 (West 2011). Coroners have the power of arrest, bear arms,
administer oaths, enter upon public or private premises for the purpose of making investigations, seize evidence,
interrogate persons, impound vehicles involved in vehicular deaths, employ special investigators and photographers,
and expend funds for the purpose of carrying out the KRS provisions on coroners. Ky. REV. STAT. ANN. §
72.415(1) (West 2011).
Ky. REV. STAT. ANN. § 72.410(2) (West 2011). Coroners and deputy coroners “act as [] liaison[s] between the
police and the medical examiner's office in the investigation of various types of deaths” within the Commonwealth.
Investigations, LouISVILLEKy.GOv, http://www.louisvilleky.gov/Coroner/investigations.htm (last visited June 20,
2011). An “inquest” is “an examination . . . into the causes and circumstances of any death which is a coroner's case
by a jury of six (6) residents of the county impaneled and selected by the coroner to assist him[/her] in ascertaining
the cause and manner of death.” Ky. REV. STAT. ANN. § 72.405(3) (West 2011); see also Interview with David
Jones, infra note 90 (noting that inquests were more common over twenty years ago).
1 Ky. REV. STAT. ANN. § 72.405(4) (West 2011); see also Interview with David Jones, supra note 99.
10! Forensic Library: Autopsy Protocol, Ky. CORONERS ASS’N,
http://www.coroners.ky.gov/NR/rdonlyres/D96EE84C-BB83-41D1-96C5-
105
coroners conduct post-mortem examinations and only the MEO’s medical examiners conduct
autopsies.
Coroners also have the power to obtain and possess any “objects, medical specimens, or articles
which, in his/her opinion, may be helpful in establishing the cause of death” and the coroner has
the power to determine how those objects are tested by the Commonwealth’s medical
examiners. In practice, the Commonwealth’s medical examiners decide which tests are
medically necessary to determine cause and manner of death in the cases referred to their
offices.“ In the event of a criminal prosecution, the coroner maintains this evidence, and any
reports made regarding the evidence, until the prosecuting attorney requests it, unless otherwise
directed by the Commonwealth courts.'°° However, in cases in which the medical examiner is
involved, the evidence will be forwarded to the MEO, where it will be retained during the course
of the criminal investigation. '°° KRS 72.470 grants immunity to a coroner or deputy coroner,
“acting in good faith within the scope of his[/her] official duties, . . . from any civil liability that
may otherwise be incurred or imposed.”!°”
ce. Accreditation, Certification and Training of County Coroners
Kentucky’s elected coroners are not required to obtain certification or undergo training.
However, Commonwealth law provides that a coroner who successfully completes the initial
basic training course and at least eighteen hours of approved training annually is entitled to a
salary of $200 to $400 more per month than a coroner who does not complete the training. '°*
Deputy coroners, on the other hand, are required, as a condition of their office, to receive and
maintain certification by completing the DOCJT’s basic training and a minimum of eighteen
hours of continuing education each year.'° Deputy coroners who are physicians licensed to
311894E54F54/0/2009PandPSectionF .pdf (last visited June 20, 2011). If a coroner declines to order an autopsy to
be conducted by the MEO, prosecutors and law enforcement officials can petition the district or circuit court to order
the MEO to conduct an autopsy. KY. REV. STAT. ANN. § 72.445 (West 2011) (noting that “[iJn granting or denying
such request, the court shall determine whether or not reasonable grounds exist for believing that the decedent may
have died as a result of a criminal act”).
12 Interview with David Jones, supra’ —s note ~=—-99;_—sInvesttigations, += LoUISVILLEKy.Gov,
http://www. louisvilleky.gov/Coroner/investigations.htm (last visited June 20, 2011).
1° Ky, Rev. STAT. ANN. § 72.020(2) (West 2011). In practice, law enforcement conducting homicide
investigations typically maintain control and possession of such objects. Statement of Hon. Gordie Shaw,
Commonwealth’s Attorney, Fourteenth Judicial Circuit of Ky., February 2, 2011 (on file with author).
104 Email to Paula Shapiro from Dr. Tracey Corey, Chief Medical Examiner, Ky. State Med. Examiner’s Office,
Jan. 5, 2011 (on file with author). If a coroner requests a test to be performed that a medical examiner believes is
not necessary, the coroner may have that test performed at his/her expense, rather than on the expense of the MEO.
105 Ky. REV. STAT. ANN. § 72.020(2) (West 2011).
Email from Dr. Tracey Corey, supra note 104.
107 Ky. REV. STAT. ANN. § 72.470 (West 2011).
Ky. REV. STAT. ANN. § 64.185(1) (West 2011).
Ky. REV. STAT. ANN. § 72.415(2) (West 2011) (requiring training course for deputy coroners); Introduction,
Ky. CoRONERS Ass’N, http://www.coroners.ky.gov/Forensic+Library.htm (last visited June 20, 2011). The KRS
also permits additional compensation for certified deputy coroners. Ky. REV. STAT. ANN. § 64.185(2) (West 2011).
109
106
practice medicine in Kentucky may be exempt from the certification requirement.” The
DOCIT’s coroner training, which is available free of charge to all of the Commonwealth’s
coroners and deputy coroners, includes trainings on firearms, vehicular death investigation, fatal
child investigation, arson investigation, and drug investigation deaths.''' Uncertified coroners
and deputy coroners cannot conduct death investigations or perform post-mortem examinations;
thus they lose the power and authority of a coroner and may not be entitled to a salary.!? In
practice, coroners and deputy coroners obtain certification through the Commonwealth’s DOCJT
training program. Hs
Finally, the National Association of Medical Examiners (NAME) and the American Board of
Medicolegal Death Investigators (ABMDI) are national organizations that accredit coroners and
medical examiners.''* While we are aware of eight coroners or deputy coroners in Kentucky
certified by ABMDI,'" we are not aware of any county coroner office in Kentucky whose office
has received voluntary accreditation under NAME or any other national accreditation
program.''® AMBDI and NAME accreditation are discussed below. !'7
i. ABMDI
110” Ky, REV. STAT. ANN. §§ 72.405(5), 72.415(2), 72.265 (West 2011) (instead of DOCJT training, courses from
other organizations may be substituted if approved by the Justice and Public Safety Cabinet).
"Ky. Rev. Stat. ANN. § 72.415(2) (West 2011); ‘Investigations, © LouIsvILLEKY.Gov,
http://www. louisvilleky.gov/Coroner/investigations.htm (last visited June 20, 2011).
12" Ky. REV. STAT. ANN. § 72.405(4)-(5) (West 2011) (defining a post-mortem examination as one conducted by a
certified coroner or deputy coroner) (emphasis added); 84 Ky. Op. Att’y Gen. 355 (1984) (stating that generally, a
uncertified coroner or deputy coroner may not perform post-mortem examinations, but there are exceptions to the
certification requirements for licensed physicians); Interview with David Jones, supra note 99. Mr. Jones explained
that although coroners, as constitutionally mandated positions, may not be fired, if they fail to obtain certification,
they would almost certainly not be re-elected. Id. In addition, a “deputy coroner who failed to complete his or her
training might not be entitled” to immunity from civil liability under KRS 72.470. Ky. DEp’T OF CRIMINAL JUSTICE
TRAINING, 2009 CORONER TRAINING SCHEDULE 7 (2009), available at
http://docjt.jus.state.ky.us/forms/Coroners/2009/Coroner2009.pdf.
"3" Telephone Interview by Paula Shapiro with Dr. Tracey Corey, Chief Medical Examiner, and Mandy Combest,
Executive’s Staff Advisor, Ky. State Med. Examiner’s Office, Nov. 24, 2010 (on file with author); Interview with
David Jones, supra note 99; Ky. REV. STAT. ANN. § 72.405(5) (West 2011).
14 NAME accredits coroner’s offices; medical examiner systems, which includes satellite offices where autopsies
are performed; and individual medical examiner offices. NAT'L ASS’N OF MED. EXAMINERS, INSPECTION &
ACCREDITATION POLICIES AND PROCEDURES MANUAL ea July 2009, available at
http://thename.org/index.php?option=com_docman&task=cat_view&gid=45&Itemid=26 [hereinafter NAME
MANUAL]. ABMDI “certifies individuals who have the proven knowledge and skills necessary to perform
medicolegal death _—investigations.”. AM. BD. OF MEDICOLEGAL DEATH _ INVESTIGATORS,
http://medschool.slu.edu/abmdi/index.php (last visited June 20, 2011).
NS” Registry Diplomates, AM. Bb. OF MEDICOLEGAL DEATH INVESTIGATORS,
http://medschool.slu.edu/abmdi/index.php?page=registry-database (last visited June 20, 2011) (typing in and
searching under Kentucky, which lists five coroners).
16 NAME Accredited Offices, NAT'L ASS’N OF MED. EXAMINERS,
http://thename.org/index.php?option=com_content&task=view&id=67&Itemid=69 (last visited June 20, 2011) (The
Office of the Chief Medical Examiner in Jefferson County has received a full accreditation). For more information
on NAME, please see the next section on Medical Examiners, infra notes 151-161 and accompanying text.
7 A .
See infra notes 118-127, 151-161 and accompanying text.
107
ABMDI is a voluntary, independent professional certification board for medicolegal death
investigators.''* ABMDI’s certification program certifies coroners and personnel within medical
examiner offices “who have proven knowledge and skills necessary to perform medicolegal
death investigations” as set forth in the National Institutes of Justice 1999 publication Death
Investigation: A Guide for the Scene Investigator (NIJ Guide).''”
ABMDI certifies forensic specialists as “Registry Diplomates” or “Board Certified Fellows.”!””
In order to become a Registry Diplomate, an individual must be at least eighteen years old, have
a high school diploma or equivalent, be employed at the time of both application and
examination in a Medical Examiner or Coroner office with the responsibility to “conduct death
scene investigations,” and have a minimum of 640 hours of death investigation experience. '”!
The applicant also must successfully complete the 240 multiple choice questions on the ABMDI
Registry Examination, testing “factual knowledge, technical information, [and] understanding
the principles and problem-solving abilities related to the profession,” based on the NIJ Guide.'”
The examination is divided into eight sections covering the following test subject areas: “(1)
Interacting with Federal, State and Local Agencies; (2) Communicating; (3) Interacting with
Families; (4) Investigating Deaths; (5) Identifying and Preserving Evidence; (6) Maintaining
Ethical and Legal Responsibilities; (7) Demonstrating Scientific Knowledge; and (8) Coping
with Job-Related Stress.”'? Certification as an ABMDI Registered Diplomate lasts five years,
during which time the certified individual must complete a minimum of forty-five hours of
approved continuing education. 14
Registry Diplomates who have been in good standing for a minimum of six months are eligible
to become “Board Certified Fellows,” provided the individual has an associate’s degree from a
post-secondary educational institution, and has a minimum of 4,000 hours of experience in
medicolegal death investigation in the past six years. "5 Applicants must successfully complete a
Board Certification Examination, which is comprised of both a “Performance Section,” in which
the applicant must analyze medicolegal death investigation scenes, and a “Multiple Choice
Section,” which consists of 240 questions on “(1) Investigating Specific Death Scenes, (2)
Investigating Multiple Fatalities, (3) Investigating Atypical Death Scenes, (4) Investigating
"8AM. BD. OF MEDICOLEGAL DEATH INVESTIGATORS, http://medschool.slu.edu/abmdi/index.php (last visited June
20, 2011). In 2005, ABMDI received accreditation from the Forensic Specialties Accreditation Board. FORENSIC
SPECIALTIES ACCREDITATION BD., http://www.thefsab.org/ (last visited June 20, 2011). The Forensic Specialties
Accreditation Board is “a mechanism whereby the forensic community can assess, recognize and monitor
organizations or professional boards that certify individual forensic scientists or other forensic specialists.” Id.
N°" AM. BD. OF MEDICOLEGAL DEATH INVESTIGATORS, http://medschool.slu.edu/abmdi/index.php (last visited June
20, 2011).
Id.
Bh Registry Certification (Basic), AM. Bp. OF MEDICOLEGAL DEATH INVESTIGATORS,
http://medschool.slu.edu/abmdi/index.php?page=registry-certification-basic (last visited June 20, 2011).
122° Id.; U.S. DEP’T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, NAT’L INST. OF JUSTICE, DEATH INVESTIGATION: A
GUIDE FOR THE SCENE INVESTIGATOR (Nov. 1999), available at http://www.ncjrs.gov/pdffiles/167568.pdf.
eS Registry Certification (Basic), AM. Bp. OF MEDICOLEGAL DEATH INVESTIGATORS,
http://medschool.slu.edu/abmdi/index.php?page=registry-certification-basic (last visited June 20, 2011).
ie Recertification, AM. Bp. OF MEDICOLEGAL DEATH INVESTIGATORS,
http://medschool.slu.edu/abmdi/index.php?page=recertification (last visited June 20, 2011).
5" Board Certification (Advanced), AM. BD. OF MEDICOLEGAL DEATH _ INVESTIGATORS,
http://medschool.slu.edu/abmdi/index.php?page=board-certification-advanced (last visited June 20, 2011).
108
Institutional Deaths, (5) Demonstrating Leadership Skills, (6) Demonstrating Legal Knowledge,
(7) Communication Skills, and (8) Demonstrating Advanced Forensic Science Knowledge.”"”°
Upon completion, the individual will receive certification as an ABMDI Certified Fellow for a
period of five years. tar
2. Kentucky State Medical Examiner’s Office (MEO)
Kentucky established the MEO in order to assist the Commonwealth’s coroners in all aspects of
death investigation, including determining the cause and manner of death, identification of the
deceased, and collection and interpretation of trace evidence.'?* The MEO employs medical
examiners who perform medicolegal death investigations, including autopsies, post-mortem
examinations, and scientific testing, at the request of county coroners.'”” The MEO maintains
four offices and autopsy facilities: the Office of the Chief Medical Examiner in Louisville, '*° the
Office of the Associate Chief Medical Examiner in Frankfort,'*! the Western Kentucky Regional
Medical Examiner's Office in Madisonville,'** and the Northern Kentucky Regional Medical
Examiner's Office in Fort Thomas. '*?
a. Appointment and Qualification Requirements for Medical Examiners
The Commonwealth’s MEO is led by a Chief Medical Examiner appointed by the Secretary of
the Kentucky Justice and Public Safety Cabinet (Cabinet).'** The Chief Medical Examiner is
“responsible for all matters relating to forensic pathology and forensic toxicology and other
duties assigned by the Secretary.”'*° Under Kentucky law, an individual must be a forensic
pathologist certified by the American Board of Pathology in order to be eligible for the position
of Chief Medical Examiner.'** The Chief Medical Examiner reports to the Cabinet Secretary
and is authorized to employ such staff as necessary to perform the forensic duties, functions, and
responsibilities of the office. a
Pid.
"7 Recertification, AM. Bp. OF MEDICOLEGAL DEATH INVESTIGATORS,
http://medschool.slu.edu/abmdi/index.php?page=recertification (last visited June 20, 2011).
28" Ky. REV. STAT. ANN. § 72.210 (West 2011) (noting that “it is not the intention of the General Assembly to
abolish or interfere with the coroner in his role as a constitutionally elected peace officer. It is the intent of the
General Assembly for the [MEO] to aid, assist, and complement the coroner in the performance of his duties by
providing medical assistance to him in determining causes of death.”); Interview with Dr. Tracey Corey & Mandy
Combest, supra note 113. Trace evidence “refers to the size and quantities of evidence that can be collected. Paint
chips, a few bits of glass, and soil stuck to shoes are examples.” KSP EVIDENCE GUIDE, supra note 9, at 49.
129 2009 MEO ANNUAL REPORT, supra note 92, at 5.
BO Td. at 44.
BI Id.
Id.
83 Td.
14 Ky, REV. STAT. ANN. §§ 15A.020(1)(e), 72.240 (West 2011).
185 Ky, REV. STAT. ANN. §§ 15A.020(3)(e), 72.240 (West 2011).
86 Ky, REV. STAT. ANN. § 72.240(1) (West 2011). For a description of the American Board of Pathology
requirements for certification and re-certification, see Requirements for Primary and Subspecialty Certifications,
AM. BD. OF PATHOLOGY, http://www.abpath.org/201 1 BookletofInformation.pdf (last visited June 20, 2011).
BT Ky. REV. STAT. ANN. § 15A.020(3)(e) (West 2011).
109
By statute, the Cabinet can appoint additional physicians licensed to practice medicine in
Kentucky or can designate county or district health officers as county or district medical
examiners.'** In practice, the Chief Medical Examiner makes employment decisions on medical
examiners, technicians, and other staff members at the MEO. '39 All medical examiner offices in
Kentucky are staffed by forensic pathologists who are certified by the American Board of
Pathology and/or board-eligible and who have completed at least five years of post-graduate
training in forensic pathology. ' As of December 1, 2010, the Kentucky MEO employs twelve
full-time forensic pathologists, including the Chief Medical Examiner and the Associate Chief
Medical Examiner, and one part-time forensic pathologist, all of whom perform approximately
2,500 autopsies annually. '*!
b. Powers and Duties of Medical Examiners
There are six basic functions of the Kentucky State Medical Examiner Office:
(1) Determine the cause and manner of death of individual decedents in a timely
fashion;
(2) Identify the dead with a high degree of certainty and written documentation;
(3) Prepare and maintain accurate, thorough, and timely reports regarding
examinations and opinions;
(4) Safeguard and account for evidence and personal property;
(5) Maintain confidentiality of case information; and
(6) Base expert opinions on logical conclusions after considering all historical
and physical evidence available, in light of current scientific and medical
knowledge. ie
A medical examiner becomes involved in a death investigation at the discretion of the county
coroner whose county in which the decedent is found.'*? However, it is ultimately the medical
examiner’s responsibility to determine the type and extent of the examination medically
necessary to establish the cause and manner of death.'** According to the MEO, Kentucky’s
medical examiners perform a full autopsy in every homicide occurring within the
Commonwealth.'* Since September 2008, Kentucky’s MEO has contracted with AIT
Laboratories, Inc., in Indianapolis, Indiana, for toxicology screenings, including the detection,
identification and quantification of alcohol and other drugs in biological specimens. a
18 Ky, REV. STAT. ANN. § 72.240(2) (West 2011).
18°" Interview with Dr. Tracey Corey & Mandy Combest, supra note 113.
149 2009 MEO ANNUAL REPORT, supra note 92, at 6. However, the Madisonville forensic pathologist previously
had been board-eligible, but that eligibility has expired. Email from Dr. Tracey Corey, supra note 104.
is!" Interview with Dr. Tracey Corey & Mandy Combest, supra note 113.
142 2009 MEO ANNUAL REPORT, supra note 92, at 5.
‘83° Td. at 6-7. Law enforcement investigators also may obtain a court order authorizing the involvement of the
MEO in the rare event that the coroner declines to provide such authorization. Id.
i" Email from Dr. Tracey Corey, supra note 104; 2009 MEO ANNUAL REPORT, supra note 92, at 7.
'5" Interview with Dr. Tracey Corey & Mandy Combest, supra note 113.
Interview with Dr. Tracey Corey & Mandy Combest, supra note 113; ABFT Accredited Forensic Toxicology
Laboratories, AM. Bp. OF FORENSIC TOXICOLOGY,
http://abft.org/index.php?option=com_content&view=article&id=55&Itemid=64 (last visited Nov. 18, 2010) (listing
146
110
In addition to performing autopsies and post-mortem examinations, Kentucky’s medical
examiners and forensic pathologists routinely consult with law enforcement officials,
prosecutors, and defense attorneys regarding aspects of criminal investigations, including blood
spatter analysis, crime scene investigation and toxicology interpretation, meeting with decedents’
families, and providing expert testimony in courts throughout Kentucky. ‘47 The MEO also
provides clinical forensic medicine services.'“* The staff also provides assistance to DOCJT’s
programs for coroners and law enforcement officers, particularly on the identification, collection,
and preservation of bodily evidence.”
c. Accreditation of Medical Examiner Offices and Certification
One branch within Kentucky’s MEO, the Office of the Chief Medical Examiner in Louisville,
has obtained voluntary accreditation through the National Association of Medical Examiners
(NAME).'*°
NAME is the primary accrediting entity for medical examiner offices.'°' NAME accreditation
“attests that an office has a functional governing code, adequate staff, equipment, training, and a
suitable physical facility and produces a forensically documented accurate, credible death
investigation product.”!? The NAME accreditation process for medical examiner offices is
similar to the ASCLD/LAB accreditation process associated with forensic laboratories. The
applicant must perform a self-inspection using the NAME Accreditation Checklist,'*? file an
application, and undergo an external inspection to evaluate whether the facility meets the NAME
Standards for Accreditation.'™*
The external inspection is conducted by a NAME inspector, who will “systematically examine in
detail each question on the [Accreditation] Checklist with the chief medical examiner . . . or his
accreditation for AIT Laboratories, Inc.). Prior to September of 2008, all necessary toxicology screenings were
conducted in house by the MEO’s Toxicology Office. Interview with David Jones, supra note 99.
47 2009 MEO ANNUAL REPORT, supra note 92, at 6. See also Jacinta F. Manning, Speaking for the Dead: An In-
Depth Look at the Kentucky Medical Examiner's Officer, Ky. LAW ENFORCEMENT NEWS, Sept. 2005, at 36.
148 2009 MEO ANNUAL REPORT, supra note 92, at 6.
©" Td. at 8.
150 NAME Accredited Offices, NAT'L ASS’N OF MED. EXAMINERS,
http://thename.org/index.php?option=com_content&task=view&id=67&Itemid=69 (last visited June 20, 2011). The
other accrediting body for medical examiners and medical examiner offices is the American Board of Forensic
Toxicology (ABFT), which accredits laboratories and individual forensic toxicologists, has “establish{ed] and
enhance[d] voluntary standards for the practice of forensic toxicology and for the examination and recognition of
scientists and laboratories providing forensic toxicology services.” AM. BD. OF FORENSIC TOXICOLOGY,
www.abft.org (last visited June 20, 2011). As indicated above, the toxicology laboratory that performs all
toxicology testing for the MEO is accredited by the American Board of Forensic Toxicology. See supra note 146.
‘5! NAS Report 2009, supra note 2, at 258 (“Currently, the standard for quality in death investigation for medical
examiner offices is accreditation by NAME”).
Id.
153° NaT’L ASS’N OF MED. EXAMINERS, NAME INSPECTION AND ACCREDITATION CHECKLIST, 2-6 (2d ed. 2009),
available at http://thename.org/index.php?option=com_docman&task=cat_view&gid=45&Itemid=26 [hereinafter
NAME ACCREDITATION CHECKLIST].
‘54 NAME MANUAL, supra note 114, at 61-65.
111
or her representative.”!°° The checklist contains a series of questions designated as “essential”
or “non-essential” criteria.'°° Essential requirements include whether
(1) The office has a written and implemented policy or standard operating
procedure, signed within the last two years, covering facility maintenance,
security, and personnel issues;
(2) The Chief Medical Examiner or the Coroner’s autopsy surgeon is a forensic
pathologist certified by the American Board of Pathology and has at least two
years of forensic pathology work experience beyond forensic pathology
residency/fellowship training; and
(3) There are written and implemented qualifications established for medical
investigators. is7
The inspection report must be submitted to NAME within thirty days of the inspection. !°* The
report concludes with a recommendation for full accreditation, provisional accreditation, or non-
accreditation.’ In order to obtain full accreditation, the applicant may not have more than
fifteen “non-essential” criteria deficiencies and may not have any “essential” criteria
deficiencies.'© Full accreditation is conferred for a maximum period of five years from the date
the accreditation is given. '°!
8S Td. at 65.
186 Td. at 57. (Note that we have adopted language inconsistent with NAME, where NAME’s “Phase I” are “non-
essential” criteria and “Phase IT” are “essential” criteria).
157 NAME ACCREDITATION CHECKLIST, supra note 153, at 2-4, 24, 26.
NAME MANUAL, supra note 114, at 67.
Td. at 68.
100 Td. at 69.
od.
158
112
II. ANALYSIS
A. Recommendation #1
Crime laboratories and medical examiner offices should be accredited, examiners
should be certified, and procedures should be standardized and published to ensure
the validity, reliability, and timely analysis of forensic evidence.
Accreditation means that a “laboratory adheres to an established set of standards of quality and
relies on acceptable practices within these requirements”! As explained in the 2009 National
Academy of Sciences report on forensic science (NAS Report), “[IJaboratory accreditation and
individual certification of forensic science professionals should be mandatory” and all forensic
laboratories should “establish routine quality assurance and quality control procedures to ensure
the accuracy of forensic analyses and the work of forensic practitioners.”'"
Crime Laboratories
The Commonwealth of Kentucky does not require the accreditation of forensic laboratories.
However, since 2005 three of the six locations of the Kentucky State Police Forensic Laboratory
(KSP Laboratory), including the Northern Laboratory in Cold Springs, the Central Laboratory in
Frankfort, and the Jefferson Laboratory in Louisville, have voluntarily obtained accreditation by
the American Society of Crime Laboratory Directors/Laboratory Accreditation Board
(ASCLD/LAB) under its Legacy Accreditation Program. ‘As stated in the Factual Discussion,
ASCLD/LAB now only permits laboratories to obtain accreditation under its International
Program, which is a more rigorous program based on the 17025:2005 standards developed by the
International Organization for Standardization (ISO) and the International Electrotechnical
Commission (IEC).'°
162 NAS REPORT 2009, supra note 2, at 195 (also recognizing that “accreditation does not mean that accredited
laboratories do not make mistakes, nor does it mean that a laboratory utilizes best practices in every case . . .”).
Id. at 215.
‘es ASCLD/LAB Accredited Laboratories, AM. Soc’y OF CRIME LAB. DirRECTORS/LAB. ACCREDITATION BD.,
http://www.ascld-lab.org/accreditedlabs.html#ky (last visited June 20, 2011); Interviews with Laura Sudkamp, supra
note 9. The 2003 KSP Annual Report stated that the Ashland and Madisonville laboratories are “in need of a new
facility in order to obtain their certification,” and we are unaware of any change in facilities. Ky. STATE POLICE,
2003 ANNUAL REPORT 27 (2003), available at http://www.kentuckystatepolice.org/pdf/KSP_ANREP_03.pdf
[hereinafter 2003 KSP ANNUAL REPORT]. KSP Northern Laboratory is ASCLD/LAB-accredited in controlled
substances, toxicology (blood alcohol only) and biology (serology only); KSP Central Laboratory is ASCLD/LAB-
certified in controlled substances, toxicology, trace evidence, biology, and firearms/toolmarks; and KSP Jefferson
Laboratory is accredited in controlled substances, toxicology (blood alcohol only), biology (serology only), and
firearms/toolmarks. 2003 KSP ANNUAL REPORT, supra. All three accreditations, originally effective August 3, 2005,
were extended through August 2, 2011, as the laboratories apply for ASCLD/LAB-International accreditation.
Letter from Ralph M. Keaton, Executive Director, ASCLD/LAB to Laura Sudkamp, Director, KSP Forensic Lab.
(Jan. 26, 2011), available at http://www.ascld-lab.org/cert/extensions/KSP-2nd_Ext.pdf.
Tos Programs of Accreditation, AM. Soc’y OF CRIME LAB. DiRECTORS/LAB. ACCREDITATION BD.,
http://www.ascld-lab.org/programs/prgrams_of_accreditation_index.html (last visited June 20, 2011). See also
ABA, RECOMMENDATION 100E, 2010 Ann. Mtg. (adopted Aug. 9-10, 2010), available at
www.abanet.org/leadership/2010/annual/docs/100e.doc (urging the federal government to provide funding and
resources sufficient to facilitate the accreditation of crime laboratories under standards such as ISO/IEC
17025:2005); NAS REPORT 2009, supra note 2, at 215 (“In determining appropriate standards for accreditation and
113
KSP Laboratory submitted an application for ASCLD/LAB-International accreditation for all six
of its laboratories in December 2010.'°°
As a prerequisite for accreditation, both ASCLD/LAB-Legacy and -International programs
require laboratories to take measures to ensure the validity, reliability, and timely analysis of
forensic evidence. For example, the Legacy program requires the laboratory to possess clearly
written procedures for handling and preserving the integrity of the evidence; preparing, storing,
securing, and disposing of case records and reports; and for maintaining and calibrating
equipment. '°” Similarly, the International program requires the laboratory to establish and
maintain procedures for identifying, collecting, indexing, accessing, filing, storing, maintaining,
and disposing of quality and technical reports.'** Both programs also require the laboratory to
maintain a written quality assurance manual. ea
As required, KSP Laboratory has adopted formal written policies and procedures to ensure the
validity, reliability, and timely analysis of forensic evidence. Specifically, the KSP Laboratory
adopted a Quality Assurance Manual and formal procedures providing for the proper collection
and storage of all evidence submitted for testing and the appropriate manner of maintaining the
chain of custody and security of such evidence.’ Additionally, KSP Laboratory has written
procedures for proper sterilization and calibration of instruments used during DNA testing, as
well as requirements for documenting all aspects of DNA analysis procedure. '”! According to
the Manager of the KSP Central Forensic Laboratory, KSP Laboratory’s written policies and
procedures govern all six of KSP’s laboratories, regardless of accreditation status. Mae
Both ASCLD/LAB-Legacy and -International accreditation programs also require laboratory
personnel to possess certain qualifications. For example, Legacy requires forensic examiners to
possess a specialized baccalaureate degree relevant to his/her crime laboratory specialty,
experience/training commensurate with the examinations and testimony required, and an
understanding of the necessary instruments, methods, and procedures. |” The examiners must
certification, the National Institute of Forensic Science (NIFS) should take into account established and recognized
international standards, such as those published by the International Organization for Standardization (ISO).”).
166 Interviews with Laura Sudkamp, supra note 9.
17 ASCLD/LAB-LEGACY 2008 MANUAL, supra note 23, at 24-25. Written procedures “minimize, to the greatest
extent reasonably possible, potential bias and sources of human error in forensic practice.” NAS REPoRrT 2009,
supra note 2, at 24.
168" ISO/IEC 17025: GENERAL REQUIREMENTS, supra note 25, at 1; INTERNATIONAL SUPPLEMENTAL REQUIREMENTS,
supra note 55, at 2.
1 ASCLD/LAB-LEGACY 2008 MANUAL, supra note 23, at 24-25; ISO/IEC 17025: GENERAL REQUIREMENTS,
supra note 25, at 3; INTERNATIONAL SUPPLEMENTAL REQUIREMENTS, supra note 55, at 7.
170" See, e.g., KSP FORENSIC LAB., KSP LABORATORY QUALITY ASSURANCE MANUAL (Nov. 25, 2010) (on file with
author) (Standard 5.8.1 Evidence Control System); KSP EVIDENCE GUIDE, supra note 9; KSP FORENSIC LAB.,
CONTROLLED SUBSTANCES QUALITY ASSURANCE MANUAL (rev. June 7, 2010) (on file with author).
See, @.g., KSP FORENSIC LAB., FORENSIC BIOLOGY ANALYTICAL PROTOCOL MANUAL (rev. Nov. 19, 2010) (on
file with author); KSP FORENSIC LAB., SEROLOGY TRAINING MANUAL (Apr. 8, 2010) (on file with author); KSP
FORENSIC LAB., FORENSIC BIOLOGY/DNA DATABASE QUALITY ASSURANCE MANUAL (Mar. 31, 2010) (on file with
author).
'™- Interviews with Laura Sudkamp, supra note 9.
"8 ASCLD/LAB-LEGACY 2008 MANUAL, supra note 23, at 11, 41-54. See also ASCLD/LAB-INTERNATIONAL
OVERVIEW, Supra note 52, at 25 (noting that ASCLD/LAB has “adopted a comprehensive Proficiency Review
Program (PRP) and established a Proficiency Review Committee (PRC) for each of the accredited disciplines”);
114
also successfully complete a competency test prior to assuming casework responsibility and
successfully complete annual proficiency tests. !”
In practice, although personnel are not required by the Commonwealth to obtain certification,
KSP Laboratory requires laboratory personnel at each of KSP’s six laboratories to possess a
degree and specialized training relevant to his/her crime laboratory specialty, as well as to
undergo annual proficiency tests to ensure the proper analysis of each type of evidence.'”
However, inadequacies and recent criticism of the ASCLD/LAB-Legacy accreditation process
underscore the need for Commonwealth crime laboratories to adhere to the standards set forth in
ISO/IEC 17025:2005. Unlike the Legacy program, there are no optional requirements for quality
management systems and technical operations of laboratories under the ASCLD/LAB-
International standards; each requirement must be met for accreditation.'” The International
program has an additional requirement for an annual surveillance visit, during which “any issues
that may have come to the attention of ASCLD/LAB and/or requirements selected by
ASCLD/LAB are reviewed.”'”” Furthermore, International accreditation bars ASCLD
Consulting, a for-profit corporation that received criticism for working with applicant
laboratories to meet Legacy accreditation requirements, from consulting with laboratories on
their applications for International accreditation.'* Finally, a criticism of both ASCLD/LAB
accreditation programs is that the determination of whether to confer accreditation on a particular
NAS Report 2009, supra note 2, at 59 (“Because of the distinctly different professional tracks within larger
laboratories, for example, technicians perform tests with defined protocols, and credentialed scientists conduct
specialized testing and interpretation.”).
4 ASCLD/LAB-LEGACY 2008 MANUAL, supra note 23, at 37-50; KSP FORENSIC LAB., LABORATORY
ADMINISTRATIVE PROTOCOLS (2010) (effective Apr. 26, 2010) (on file with author) (listing the job qualifications
and responsibilities of forensic scientists, evidence technicians, quality assurance managers, and technical leaders,
among others).
15 KSP FORENSIC LAB., LABORATORY ADMINISTRATIVE PROTOCOLS (2010) (effective Apr. 26, 2010) (on file with
author) (including a section on Proficiency Test Processing); Interviews with Laura Sudkamp, supra note 9.
176 ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 52, at 13-14; ASCLD/LAB-LEGACY 2008 MANUAL, supra
note 23, at 84, app. 3.
"7 NAS REPORT 2009, supra note 2, at 199; ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 52, at 23-28.
"8 Joseph Neff & Mandy Locke, Forensic Groups Ties Raise Concerns, News & OBSERVER, Oct. 13, 2010,
http://www.newsobserver.com/2010/09/26/703376/forensic-groups-ties-raise-concerns.html (last visited June 20,
2011). The deficiency of the ASCLD/LAB-Legacy accreditation program is perhaps best illustrated by the failures
of North Carolina’s Legacy-accredited State Bureau of Investigations (SBI). After the highly publicized exoneration
of Gregory Taylor in 2010, an independent evaluation of the SBI’s practices from January 1987 through January
2003, during which time the SBI was accredited through the ASCLD/LAB-Legacy program, raised “serious issues
about laboratory reporting practices . . . and the potential that information that was material and even favorable to
the defense of criminal charges was withheld or misrepresented.” N. CAROLINA ATT’y GEN. OFFICE, AN
INDEPENDENT REVIEW OF THE SBI ForeNsIC LABorATORY 4 (2010), available at
http://www.ncaj.com/file_depot/0-10000000/0-
10000/9208/folder/88864/Independent+Review+of+SBI+Forensic+LAB.pdf. Despite SBI’s Legacy-accreditation
since 1988, the independent review of SBI’s practices during that time identified 230 cases in which laboratory
reports similar to those in Taylor’s case existed. For example
[C]ases in which the presumptive tests yielded ‘positive indications for the presence of blood,’ but
were subsequent confirmatory tests reflecting ‘negative’ or ‘inconclusive’ results were omitted
from the final report. The final report in such cases, then, would only indicate the positive results
of the less sensitive presumptive test for blood.
Id. at 3.
115
laboratory is made by the ASCLD/LAB Board of Directors, a group of fellow laboratory
directors from other ASCLD/LAB-accredited laboratories, effectively making any inspection of
a Kentucky laboratory a peer review, which, in turn, may affect the impartiality of the
accreditation process. m
Finally, as noted in the Factual Discussion, various types of forensic testing, such as video and
computer forensics, transcription, polygraph testing, serial number restoration, and ballistics
testing, is conducted in non-laboratory settings in law enforcement agencies unaffiliated with
KSP Laboratory throughout the Commonwealth.'*° In addition, the KSP Criminal Identification
and Records Branch runs the Commonwealth’s Automated Fingerprint Identification System
(AFIS) in a separate laboratory in Frankfort, and the KSP’s Communications and Computer
Technology Branch provides forensic-based computer examination and technical assistance to
the Commonwealth’s law enforcement agencies. *! Neither of these additional KSP branches
nor the Commonwealth’s smaller law enforcement agencies conducting limited forensics are
accredited by any national accrediting body, including ASCLD/LAB.'*”
Medical Examiner and Coroners Offices
The Kentucky State Medical Examiner’s Office
The Commonwealth does not require the Kentucky State Medical Examiner’s Office (MEO) to
obtain accreditation prior to conducting medicolegal death investigations. However, one of
1 See supra text accompanying notes 49, 80; see also Janine Arvizu, Shattering The Myth: Forensic Laboratories,
24 CHAMPION 18 (2000). Furthermore, while Lead Assessors or Inspectors conducting the requisite site-
assessments are usually ASCLD employees, occasionally the Lead Assessor may be a volunteer from the
ASCLD/LAB Delegates Assembly, which is also comprised of the ASCLD/LAB-accredited laboratories’ directors.
Id. (“This peer-to-peer composition of ASCLD Inspectors creates the potential for conflicts in the close-knit forensic
community. If an Inspector is perceived as being too rough on a laboratory, it could limit his or her career
opportunities at sister laboratories. Or consider the fact that representatives from the laboratory that I audit today
may show up on my doorstep next month to audit my laboratory.”); ASCLD/LAB-LEGACY 2008 MANUAL, supra
note 23, at 8-9; ASCLD/LAB-INTERNATIONAL OVERVIEW, supra note 52, at 12-14.
18° Interview with Sergeant Allen Dobson, supra note 86 (noting that although the Division may be capable to
perform ballistics testing, Lexington does not currently employ staff able to perform the tests); Bureau of
Investigation Phone Directory, LEXINGTON Div. OF POLICE, http://www.lexingtonky.gov/index.aspx?page=97 (last
visited June 20, 2011); Units/Sections, LOUISVILLE METRO POLICE DEP’T,
http://www. louisvilleky.gov/MetroPolice/Unitstand+ Sections (last visited June 20, 2011).
'S!” Organizational Units, Ky. STATE POLICE, http://www.kentuckystatepolice.org/text/ksporgan.htm (last visited
June 20, 2011).
1 ASCLD/LAB Accredited Laboratories, AM. Soc’y OF CRIME LAB. DirRECTORS/LAB. ACCREDITATION BD.,
http://www.ascld-lab.org/labstatus/accreditedlabs.htmli#ky (last visited June 20, 2011). See NAS REPorT 2009,
supra note 2, at 200, (calling for the accreditation of all offices or laboratories performing forensic science analysis
particularly because “some [forensic science] disciplines are practiced largely outside the laboratory environment
(e.g., 66 percent of fingerprint analyses are not conducted in crime laboratories)” and noting “there is a substantial
gap in the number of [non-laboratory] programs participating in accreditation”’)).
183° Tn 2010, the ABA adopted a resolution that “continues the ABA’s advocacy in favor of accreditation of medical
examiners offices, examiner certification, adequate funding of laboratories and medical examiners offices.” ABA,
RECOMMENDATION 100G, 2010 Ann. Mtg. (adopted Aug. 9-10, 2010), available at
http://www.abanet.org/leadership/201 0/annual/pdfs/100g.pdf (urging “federal, state and territorial governments [to]
provide funding and enact legislation necessary to support requiring that all offices charged with conducting
medico-legal death investigation meet mandatory accreditation, certification or professional practice standards
116
the four MEO locations, the Office of the Chief Medical Examiner (OCME) in Louisville, has
voluntarily applied and received accreditation through the National Association of Medical
Examiners (NAME). '*4
As a precondition to accreditation, NAME requires medical examiner offices to adopt and
implement minimum standardized written procedures to ensure that “an office has a functional
governing code, adequate staff, equipment, training, and a suitable physical facility and produces
a forensically documented accurate, credible death investigation product.”'8° According to
Kentucky’s Chief Medical Examiner, the MEO has adopted a set of written policies and
procedures governing the operations of all four MEO offices, regardless of accreditation
status.'*° NAME accreditation also requires medical examiner offices to utilize forensic
toxicology laboratories that are accredited by the American Board of Forensic Toxicology
(ABFT), or the College of American Pathologists (CAP), or that comply with the guidelines of
the Society of Forensic Toxicologists (SOFT). '87 As of November 2008, AIT Laboratories, Inc.,
an ABFT-accredited toxicology laboratory, performs all of the MEO’s forensic toxicology
testing. ‘88 Furthermore, according to the Chief Medical Examiner, the MEO’s caseloads do not
exceed the NAME-recommended annual maximum of 250 caseloads per year. a
As required for NAME accreditation, Kentucky requires its Chief Medical Examiner and
Associate Chief Medical Examiner to be forensic pathologists certified by the American Board
of Pathology. ' Other MEO medical examiners hired to assist the Chief Medical Examiner may
be physicians licensed to practice medicine in the Commonwealth.'?! According to the
Commonwealth’s Chief Medical Examiner, As of January 2011 three of the four medical
examiner offices in Kentucky are staffed by licensed physicians who are board-certified forensic
pathologists and who have completed at least five years of postgraduate training to become
proficient in forensic pathology.'°? The Chief Medical Examiner also states that the forensic
within a reasonable time frame,” and listing NAME and AMBDI as examples of potential independent accreditation
and certification entities).
'S4 Accredited Offices, NAT'L Ass’N OF MED. EXAMINERS,
http://www.thename.org/index.php?option=com_content&task=view&id=67 <emid=69 (last visited June 20, 2011)
(noting Kentucky’s OCME has full accreditation through Sept. 7, 2012). The OCME is one of fifty-seven medical
examiner offices in the country to receive full accreditation through NAME. Id.
185 NAS REPORT 2009, supra note 2, at 258.
186 Interview with Dr. Tracey Corey & Mandy Combest, supra note 113.
187 See NAME ACCREDITATION CHECKLIST, supra note 153, at 17-18.
188 ABFT Accredited Forensic Toxicology Laboratories, AM. BD. OF FORENSIC TOXICOLOGY,
http://abft.org/index.php?option=com_content&view=article&id=55&Itemid=64 (last visited June 20, 2011). The
MEO’s Toxicology Laboratory, which had performed the toxicology testing for the MEO until 2008, was
unaccredited. Interview with Dr. Tracey Corey & Mandy Combest, supra note 113.
18 NAS REPorT 2009, supra note 2, at 257; Interview with Dr. Tracey Corey & Mandy Combest, supra note 113.
199 Ky. REV. STAT. ANN. § 72.240(1) (West 2011); NAME ACCREDITATION CHECKLIST, supra note 153, at 24.
1! Ky, Rev. STAT. ANN. § 72.240(2) (West 2011). The KRS also provides that “[t]he cabinet may designate
county or district health officers as county or district medical examiners .. . .” Id.
1 Interview with Dr. Tracey Corey & Mandy Combest, supra note 113; see also supra note 140 (noting that one
medical examiner office is staffed by a forensic pathologist no longer eligible to be board-certified). However, a
February 2011 NPR/Frontline report on death investigation in the U.S. listed ten out of the twelve forensic
pathologists employed by the Kentucky MEO as certified, noting two were uncertified. Autopsy Data: County
Medical & Coroner Systems, NAT’L PuB. RADIO, http://www.npr.org/2011/02/02/133381758/autopsy-data (last
visited June 20, 2011). Also in the report, “Kentucky Chief Medical Examiner Tracey Corey acknowledged the
117
autopsy technicians and histologists working within the four MEO locations “have the requisite
education, training, and certification for their positions.”'”?
Additionally, the MEO’s individual medical examiners and/or forensic pathologists may also
obtain individual certification by voluntary professional certification boards. a
Kentucky's County Coroners
The Commonwealth does not require coroners’ offices to be accredited, nor must elected
coroners be certified.'°* Furthermore, the Kentucky Assessment is unaware of any Kentucky
coroner's office that has received voluntary accreditation under NAME or other national
accreditation entity.!°° Deputy coroners, however, must receive and maintain certification as a
condition of office.!"’ In practice, all Kentucky coroners and deputy coroners are certified and
participate in the annual training provided by DOCJT.'**
In addition to certification through DOCJT, NAME and the American Board of Medicolegal
Death Investigators (ABMDI) are the primary national organizations that accredit coroners and
[Commonwealth] employs a doctor who is not even eligible to take the forensic pathology test because she failed the
anatomic pathology exam, which is a prerequisite. ‘I'm comfortable having her work because I know her
competence,’ Corey said.” A.C. Thompson, et al., Shortage of Death Detectives to Perform Autopsies, NAT’L Pus.
Rabio, Feb. 1, 2011, http://www.npr.org/201 1/02/01/133305939/shortage-of-death-detectives-to-perform-autopsies
(last visited June 20, 2011).
‘3 Interview with Dr. Tracey Corey & Mandy Combest, supra note 113.
1 But see Ky. Rev. STAT. ANN. § 72.240 (West 2011) (imposing some certification qualifications on the
Commonwealth’s medical examiners). We are aware of at least one medical examiner in Kentucky who is currently
certified through American Board of Medicolegal Death Investigators (ABMDI), discussed supra at notes 118-127
and accompanying text.
"5 See Chapter 4 Factual Discussion on the requisite qualifications of elected coroners, supra note 95 and
accompanying text. According to the 2009 NAS Report, “[m]Jost coroner systems cannot qualify for accreditation
because of problems related to size, insufficient staff and equipment, and insufficiently trained personnel, which
inhibit their ability to perform a competent physical examination, make and/or exclude medical diagnoses on dead
bodies, and make determinations of the cause and manner of death.” NAS REPORT 2009, supra note 2, at 258. Due
to such inadequacies, the NAS recommends the eventual elimination of the coroner systems within the United States
with the goal of transitioning to medical examiner systems. Id. at 267. Absent removal of the coroner position from
the Kentucky Constitution, the Kentucky Death Penalty Assessment Team recommends that Kentucky require the
certification of all coroners and the accreditation of all coroner offices.
6 Ky. Const. § 100; NAME Accredited Offices, NAT'L ASS’N OF MED. EXAMINERS,
http://thename.org/index.php?option=com_content&task=view&id=67 <emid=69 (last visited June 10, 2011). For
more information on NAME, please see the Factual Discussion, supra notes 151-161 and accompanying text.
197 Ky, REV. STAT. ANN. §§ 72.415(1)-(2) (requiring a high school diploma or its equivalent for deputy coroners),
72.405(5) (providing an exception for deputy coroners who are licensed physicians), 15.380(5)(b) (West 2011)
(exempting coroners from certification requirements).
18 Ky, Rev. STAT. ANN. § 72.405(5) (West 2011); Interview with Dr. Tracey Corey & Mandy Combest, supra
note 113; Interview with David Jones, supra note 99. The DOCIT, which provides entry-level and in-service
training and certification to coroners and other law enforcement personnel, was the nation’s first public safety
training academy to be accredited by the Commission on Accreditation for Law Enforcement Agencies (CALEA)
under its Public Safety Training Academy Accreditation program. CALEA Client Database, CoMM’N ON
ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, http://www.calea.org/content/calea-client-database (type KY
in state box and follow results) (last visited June 24, 2011); Overview of DOCJT, Ky. DEp’T OF CRIMINAL JUSTICE
TRAINING (DOCIT), http://docjt.jus.state.ky.us/overview.html (last visited June 20, 2011). For more information on
the DOCJT and CALEA accreditation, please see Chapter 3, supra notes 7, 110, 112, and accompanying text.
118
their offices.'? As of June 2011, there were only seven coroners and deputy coroners certified
by ABDMI as Registered Diplomates and one coroner certified as a Board Certified Fellow.?°
A February 2011 PBS Frontline/NPR/ProPublica special report on Death Investigation in
America (PBS Special Report) discussed the 2009 National Academy of Sciences report on
forensic science (NAS Report), noting that the NAS Report recommended eventual abolition of
the U.S. coroner system due, in particular, to the inability of coroners without medical training
and expertise to identify and determine possible causes of death.*"! According to the PBS
Special Report, the NAS Report was “the fourth time a national study has recommended that
death investigation should be carried out by doctors, and particularly doctors who have special
expertise.”*” The PBS Special Report also noted that coroners, “[o]n their best day, if they do
not have the training, the skills, the infrastructure, the facility, the access to forensic science, they
can't do a good job. It's a question of competency. How can you train someone [to perform
medicolegal death investigations] who is not a physician?”"? Unfortunately, we were unable to
determine exactly how many coroners and deputy coroners have received any medical education
and training. The Kentucky Coroners Association’s 2011 Coroners Master Directory lists only
four out of the 120 coroners and four of the 313 deputy coroners as licensed physicians.” The
Jefferson County coroner is a board-certified forensic pathologist and two Jefferson County
deputy coroners are registered nurses.”
Conclusion
Kentucky does not require the accreditation of its crime laboratories, medical examiner offices,
and coroner offices. However, one of the four MEO’s regional offices has obtained voluntary
national accreditation through NAME and all six of the locations of the KSP Laboratory have
either voluntarily obtained or are in the process of obtaining national accreditation through
ASCLD/LAB. No coroner offices have voluntarily obtained accreditation. Additionally, while
199 NAME accredits coroner’s offices; medical examiner systems, which includes satellite offices where autopsies
are performed; and individual medical examiner offices. NAME MANUAL, supra note 114, at 2. ABMDI certifies
individual personnel working within medical examiner or coroner offices. AM. BD. OF MEDICOLEGAL DEATH
INVESTIGATORS, http://medschool.slu.edu/abmdi/index.php (last visited June 20, 2011).
20 Registry Diplomates, AM. Bb. OF MEDICOLEGAL DEATH INVESTIGATORS,
http://medschool.slu.edu/abmdi/index.php?page=registry-database (last visited June 20, 2011) (typing Kentucky in
state box and searching, listing eight coroners). In addition, one medical examiner from the Office of the Chief
Medical Examiner and one technician at the KSP Eastern Regional Crime Laboratory in Ashland, Kentucky, are
certified Registry Diplomates. Id.; Board Certified Fellows, AM. BD. OF MEDICOLEGAL DEATH INVESTIGATORS,
http://medschool.slu.edu/abmdi/index.php?page=board-diplomates (last visited June 20, 2011).
2! Sandra Bartlett, Coroners Don’t Need Degrees To Determine Death, NPR, Feb. 2, 2011,
http://www.npr.org/201 1/02/02/133403760/coroners-dont-need-degrees-to-determine-death (last visited June 20,
2011); Interview Dr. Marcella Fierro, FRONTLINE, _ http://www.pbs.org/wgbh/pages/frontline/post-
mortem/interviews/marcella-fierro.html (last visited June 20, 2011) (former Virginia Chief Medical Examiner).
72 Post Mortem: Death in America, FRONTLINE/NPR/PROPUBLICA, Feb. 2, 2011, available at
http://www_pbs. org/wgbh/pages/frontline/post-mortem (video archive).
8" Td.
2 Ky. CORONER Dir. 2011, supra note 92 (listing Anderson, Boyd, Boyle, Kenton, and Shelby Counties as having
cight coroners or deputy coroners with medical degrees, and one Anderson County deputy coroner who is an R.N.).
205" Coroner, LOUISVILLEKY.GOV, http://www.louisvilleky.gov/Coroner (last visited June 20, 2011); Deputy
Coroners, LOUISVILLEKyY.GOV, http://www.louisvilleky.gov/Coroner/deputy+coroners.htm (last visited June 20,
2011).
119
Kentucky has adopted certification requirements for the Commonwealth’s medical examiners
and deputy coroners, Kentucky does not require certification of elected county coroners or all
KSP Laboratory analysts and technicians. Accordingly, Kentucky is in partial compliance
with Recommendation #1.
The Team urges the Commonwealth to adopt legislation that requires accreditation of any
forensic science office and certification of all forensic specialists operating in the
Commonwealth in order to bring Kentucky into compliance with this Recommendation.
Furthermore, it is the Kentucky Assessment Team’s view that such legislation should adhere to
the 2009 NAS Report, which recommended that “[s]cientific and medical assessment conducted
in forensic investigations should be independent of law enforcement efforts either to prosecute
criminal suspects or even to determine whether a criminal act has indeed been committed.”*"”
While the Kentucky Assessment Team commends KSP for attempting to minimize law
enforcement involvement in forensic analysis by employing civilian analysts and a civilian crime
laboratory manager, the six laboratories within the KSP Laboratory system are the only
laboratories conducting criminal forensic analysis within the Commonwealth.” KSP continues
to control KSP Laboratory’s funding, forcing KSP Laboratory to compete with KSP’s other
divisions for a portion of the State Police’s fixed budget. In turn, KSP Laboratory’s budget
fluctuates depending upon the annual needs of the various divisions housed within the Kentucky
State Police.”” Furthermore, indigent defense service providers in Kentucky, such as the
Department of Public Advocacy, including its Innocence Project, routinely send biological
evidence to out-of-state, private forensic laboratories because of KSP Laboratory’s affiliation
with law enforcement.
The Kentucky Assessment Team recommends that the Commonwealth’s crime laboratory
system be housed as a separate department under the Justice and Public Safety Cabinet,
operating wholly independent of the KSP. By creating a forensic laboratory system independent
of law enforcement, the Commonwealth can minimize undue external or internal pressure, which
could otherwise affect the integrity, validity, and reliability of forensic analysis.”'°
B. Recommendation #2
20° While we have not uncovered certification requirements for all forensic analysts involved in cases in which
capital punishment could be sought, we note that Kentucky does require certification of breath alcohol technicians.
See 500 Ky. ADMIN. REGS. § 8:010 (2010) (on certification of breath analysis operators as required by KRS
189A.103(3)(b)). Such technicians do not typically conduct analyses for use in capital cases.
207 NAS ReEPoRT 2009, supra note 2, at 23 (“Administratively, this means that forensic scientists should function
independently of law enforcement administrators. The best science is conducted in a scientific setting as opposed to
a law enforcement setting.”).
28 Interviews with Laura Sudkamp, supra note 9.
2 The 2009 NAS Report also supports independence of forensic laboratories from law enforcement to enable labs
to “set their own budget priorities and not have to compete with the parent law enforcement agencies.” NAS
REPORT 2009, supra note 2, at 184.
210 See also ABA, RECOMMENDATION 100E cmt., 2010 Ann. Mtg. (adopted Aug. 9-10, 2010), available at
www.abanet.org/leadership/2010/annual/docs/100e.doc (urging the federal government to “[a]dopt legislation or
provide for the creation of standards that will reasonably ensure public and private laboratory management and staff
are free from undue pressure, internal or external, commercial, financial or otherwise, that may affect the quality or
integrity of the laboratory examination or analysis”).
120
Crime laboratories and medical examiner offices should be adequately funded.
Proper funding is needed to ensure that crime laboratories and medical examiners offices
maintain the equipment needed to develop accurate and reliable results and to hire and retain a
sufficient number of competent forensic scientists and staff to timely analyze forensic evidence.
Crime Laboratories
The Kentucky State Police Forensic Laboratory (KSP Laboratory) requests and receives its
annual operating budget directly from KSP, rather than through biennial appropriations from the
Kentucky General Assembly, as well as from federal grant funding from the National Institute of
Justice (NIJ).7!'! The amount provided to KSP Laboratory from KSP fluctuates each year,
depending on the needs of the State Police.”
Included in the budget are the salaries of approximately 105 biology, chemistry,
firearm/toolmark, breath-alcohol, and other technicians and forensic analysts, as well as
administrative staff and photography laboratory staff.?'* In fiscal year 2009-2010, KSP
Laboratory received allocations from the General Fund ($7,408,603), additional State Funds*"4
($3,102,716), federal funding ($1,012,442), and Other Agency Restricted Accounts ($94,217),
totaling $11,617,978.7"
KSP Laboratory either receives federal funding directly from NIJ or allocations from the
Commonwealth’s Justice and Public Safety Cabinet (Cabinet).7"° The Commonwealth of
Kentucky and Louisville-Jefferson County Metro Government were also awarded NIJ grants for
DNA testing and DNA backlog reductions.”'’ From 2004 to 2010, KSP Laboratory received a
total of $4,166,746 through the NIJ’s Forensic DNA Backlog Reduction Program in order “to
reduce forensic DNA sample turnaround time, increase the throughput of public DNA
laboratories and reduce DNA forensic casework backlogs.””!* KSP Laboratory also relies on
2! KSP FORENSIC LaB., FY09-10 LAB. BUDGET BREAKDOWN (2010) (on file with author) (provided to Paula
Shapiro by Laura Sudkamp, Director, KSP Forensic Lab.); Interviews with Laura Sudkamp, supra note 9.
_ Interviews with Laura Sudkamp, supra note 9.
28 1d.
24 This figure is comprised of amounts provided to KSP under the Commonwealth’s Road Fund, DNA Court Fees
Fund, and DUI Court Fees Fund authorized by statutory authority. KSP FORENSIC LaB., FY09-10 LAB. BUDGET
BREAKDOWN (2010) (on file with author); Interviews with Laura Sudkamp, supra note 9.
215 KSP Forensic LAB., FY09-10 LAB. BUDGET BREAKDOWN (2010) (on file with author).
216 See, e.g., FY2009 Coverdell Report to Congress—Funding Table, Nat’. INST. OF Justice, U.S. DEP’T OF
JUSTICE, _http://www.ojp.usdoj.gov/nij/topics/forensics/lab-operations/capacity/nfsia/2009-funding-table.xls__ (last
visited June 20, 2011) (noting that the grant will be shared between the MEO and KSP Laboratory) [hereinafter
FY2009 Coverdell].
27 Solving Cold Cases with DNA, DNA INITIATIVE, http://www.dna.gov/funding/cold_case (last visited June 20,
2011) (provided to the Louisville-Jefferson County Metro Government); Convicted Offender and/or Arrestee DNA
Backlog Reduction Grant Program, DNA INITIATIVE, http://www.dna.gov/funding/convicted/grants (last visited
June 20, 2011) (provided to the Commonwealth of Kentucky). We were unable to determine how this funding was
allocated between the Commonwealth’s agencies.
218 See Backlog Reduction Funding Awards, 2004-2010, PRESIDENT’s DNA __ INITIATIVE,
http://www.ojp.usdoj.gov/nij/topics/forensics/lab-operations/capacity/backlog-reduction-funding.htm (last visited
June 20, 2011).
121
additional funding from NIJ’s Paul Coverdell Forensic Sciences Improvement Grant Program
(Coverdell Grant Program) each year.?!°
Despite appropriations from the Kentucky General Assembly and federal funding, the
Commonwealth’s crime laboratory system is overburdened with an increasing caseload and a
continual backlog of cases.” To lessen the backlog, KSP Laboratory has placed limitations on
the services it provides by outsourcing paternity and genealogical DNA testing, certain types of
drug testing, and the testing of evidence where a suspect or victim may be related to an analyst in
the system.”?! KSP Laboratory also limits the number of items law enforcement may submit for
testing,” and prohibits additional testing or examinations of evidence if “the same or similar
evidence in an individual case has been subjected previously to a technical examination in the
same scientific field.”
Despite the limitations on evidence submissions and testing described above, extensive backlogs
persist with estimated turnaround times for results being anywhere from two weeks to ten
months, depending on the case type and evidence submitted for testing. Table 1, below,
illustrates KSP Laboratory’s backlog as of January 4, 2011.
?!° Interviews with Laura Sudkamp, supra note 9; Paul Coverdell National Forensic Sciences Improvement Act of
2000, Pub. L. No. 106-651 (codified at 42 U.S.C. § 3797(j), et seq.); see also Coverdell Forensic Science
Improvement Grants Program, NAT’L INsT. OF JUSTICE, http://www.ojp.usdoj.gov/nij/topics/forensics/lab-
operations/capacity/nfsia/welcome.htm (last visited June 20, 2011).
220 Interviews with Laura Sudkamp, supra note 9. See also Steve Tellier, Hundreds of Untested Rape Kits at Ky.
Crime Lab: Experts Say Backlogs Can Delay Prosecutions, Healing Process, KLKY.com, Nov. 20, 2009,
http://www.wlky.com/1/2 168204 1/detail.html (last visited June 20, 2011) (noting that as of November 20, 2009 “the
Kentucky Crime Lab has a backlog of 813 cases of all kinds involving blood or DNA evidence, including 136 cases
from Louisville Metro Police. Of those statewide cases, 355 are sexual assault cases, and 151 of those have been
sitting idle for three months or more.”). According to the 2003 Kentucky State Police Annual Report, in fiscal year
2003:
[W)orkload statistics indicate that the Kentucky State Police officers submitted a total of 8,547
cases, while law enforcement (other than KSP) submitted a total of 31,412 cases to one of six
Forensic Laboratories for analysis. These requests equate to 79 percent of the laboratory workload
attributed to non-KSP entities compared to only 21 percent attributed to the Kentucky State Police.
As a result, data compiled for the fiscal year 2002-03 indicates that the Kentucky State Police
encumbered an approximate cost of 5.83 million dollars to perform laboratory services for cases
other than our own.
2003 KSP ANNUAL REPORT, supra note 164, at 25. This data has not been published in subsequent years.
2! Interviews with Laura Sudkamp, supra note 9 (noting that the cost of outsourced testing is included in KSP
Laboratory’s operating budget).
222 See, e.g., KSP ForENSIC LAB., Forensic Biology Case Acceptance Policy, FORENSIC BIOLOGY ANALYTICAL
MANUAL (effective Apr. 2, 2010) (on file with author) (limiting initial submissions in murder/death investigation
cases to “up to ten (10) items” and permitting additional items “on a case by case basis if specific information about
those items . . . is provided . . . at the time of submission”). For detailed information on KSP Laboratory policies
regarding the testing of DNA evidence, see Chapter 2.
25" KSP EVIDENCE GUIDE, supra note 9, at 5 (noting that “[tJhis limitation is necessary in the interest of economy
as well as for the proper administration of justice.”). Furthermore, “[r]equests for re-examination decisions are at
the discretion of the Laboratory Director or the Court System.” Id. See also KSP ForENSIC LaB., Forensic Biology
Case Acceptance Policy, FORENSIC BIOLOGY ANALYTICAL MANUAL (effective Apr. 2, 2010) (on file with author).
122
Table 1
KSP Laboratory Case Backlog, As of January 4, 2011°"
Type of Case Number of Cases Backlogged Estimated Turnaround Time
DNA/Biology 716 4-6 months for homicide or sexual assault;
9-10 months for “touch DNA””> in robbery
DNA Database?” 25,257 Unknown; once backlog is eliminated, KSP
Laboratory expects receipt of 1,500 samples
per month with a 30-day turnaround time~””
Drug Chemistry 1,447 60 days
Firearms 69 60 days
Toxicology 2,279 3-4 months
Trace Evidence 165 4-6 months for hair/fiber; 2 weeks for arson
KSP Laboratory has experienced backlogs since at least 2003, when, in order to provide some
short-term relief, KSP Laboratory began to outsource DNA testing to private labs.” Today,
KSP Laboratory performs its own testing on backlogged DNA samples.” Furthermore, DNA
testing on backlogged samples for inclusion in the Commonwealth’s “DNA Database” places
additional constraints on KSP Laboratory’s existing resources.” Criminal cases, including
death penalty cases, have been delayed for months due to the backlog.”*! In 2007, it was
reported that the backlog continued and that “[h]Jundreds of pieces of evidence from crime scenes
all over Kentucky are sitting untouched at the state's forensics lab in Frankfort,” causing delays
throughout the criminal justice system as “courts await the results of DNA tests that often hold
the key to a suspect's guilt or innocence.”**” The continued existence of testing backlogs
illustrates KSP Laboratory’s need for additional funding.
Medical Examiner and Coroner Offices
Medical Examiners
224 Interviews with Laura Sudkamp, supra note 9.
Touch DNA “analyzes skin cells left behind when assailants touch victims, weapons or something else at a
crime scene .... [It] doesn’t require you to see anything, or any blood or semen at all. It only requires seven or
eight cells from the outermost layer of our skin.” What is touch DNA?, SCIENTIFIC AM., Aug. 8, 2008,
http://www.scientificamerican.com/article.cfm?id=experts-touch-dna-jonbenet-ramsey (last visited June 20, 2011)
(noting that the use of touch DNA analysis became available near or around 2003).
26 Ky. REV. STAT. ANN. § 17.175 (West 2011); see also Chapter 2 Recommendation #4, supra note 180.
27 As of January 4, 2011, testing on backlogged DNA samples for inclusion in the DNA database were not
conducted as Kentucky officials interpret new language in the controlling statute. Interviews with Laura Sudkamp,
supra note 9; Ky. REV. STAT. ANN. § 17.175 (West 2011).
28 2003 KSP ANNUAL REPORT, supra note 164, at 26 (noting that the outsourcing was paid for and operated under
the National Institute of Justice’s DNA Database Backlog Reduction Grant). The primary focus for the KSP
Forensic Laboratory in 2003 “was centered around reducing the number of backlog cases/exams awaiting analysis as
well as identifying time saving strategies focused on reducing time spent completing forensic exams.” Id. at 25.
»° Interviews with Laura Sudkamp, supra note 9.
230 Ky. REV. STAT. ANN. § 17.175 (West 2011) (establishing Kentucky’s DNA Database).
3! See, e.g., Eric Flack, Coroner: DNA Backlog Leaves Crimes Unsolved, WLWT.com, Mar. 24, 2009,
http://www.wlwt.com/1/19005175/detail.html (last visited June 20, 2011) (“At the KSP crime labs, it takes seven
and a half months for detectives to get results from DNA tests for murders, rapes, and other violent crimes. It can
take closer to a year for lesser crimes.”).
°® Kentucky crime lab struggles to keep up with DNA testing, WAvE3.coM, Feb. 23, 2007,
http://www.wave3.com/Global/story.asp?S=6 132578 (last visited June 20, 2011).
225
123
The Kentucky MEO is funded primarily through appropriations from the Kentucky General
Assembly and federal funds through the Paul Coverdell National Forensic Science Improvement
Act,” although it does obtain additional revenue from private autopsy services performed for
other states.°* The MEO employs thirteen full-time pathologists and one part-time pathologist
who conduct nearly 2,500 autopsies annually.”* Table 2, below, illustrates the variance between
the amount of funding the MEO has requested annually and the amount appropriated by the
Kentucky General Assembly, from 2002-2012.
Table 2
Medical Examiner Funding Requested versus Received from the Kentucky General Assembly
Fiscal Year Requested (in $) Enacted~™ (in $) Difference (in $)
20127" 5,058,800 4,386,500 (672,300)
20117 4,925,000 4,386,500 (538,500)
20107 5,066,300 4,410,500°" (655,800)
200977" 4,843,000 4,093,400 (749,600)
2008" 4,830,400 4,120,400" (710,000)
20077" 4,705,600 3,925,300 (780,300)
20067" 4,697,700 3,821,400" (876,300)
233 NAS REPORT 2009, supra note 2, at 28 (noting that the Coverdell Grant is the “only federal grant program that
names medical examiners and coroners as eligible for grants”).
4 See Manning, supra note 147, at 40 (“[T]he Louisville office earned $200,000 last year doing private autopsies
for Southern Indiana.”).
35 Interview with Dr. Tracey Corey & Mandy Combest, supra note 113. The MEO also employed an Executive
Director, who was responsible for all matters related to the administrative support of the Commonwealth’s four
locations of the Medical Examiner’s Office. Ky. REV. STAT. ANN. §§ 154.020 (1)(e), 12.050 (West 2011).
However, the Executive Director position was defunded and the MEO’s administrative duties are currently handled
by the Justice and Public Safety Cabinet’s Office of the Secretary. Interview with Dr. Tracey Corey & Mandy
Combest, supra note 113. The MEO also eliminated its forensic anthropologist position after the retirement of Dr.
Emily Craig in December 2010. Id. The MEO now receives forensic anthropology services through the FBI
Laboratory Division’s new Forensic Anthropology Program. Id.
6 For fiscal years 2010, 2008, 2006, and 2000, the amount of funding appropriated to the MEO during this year
was revised to include additional appropriations; for fiscal years 2011 and 2012, the enacted fund figure is the
amount recommended by the Kentucky General Assembly. See, e.g., 2010-2012 BUDGET, supra note 7, at 245.
337 9010-2012 BUDGET, supra note 7, at 245.
238 Tg,
239 Ky, OFFICE OF THE STATE BUDGET DiR., BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS
2008-2010 323, available at http://www.osbd.ky.gov/NR/rdonlyres/1015785C-71AD-4CCC-9BB5-
4F1B42511BA5/0/0810_BOC_Volumel.pdf [hereinafter 2008-2010 BUDGET].
249 2010-2012 BUDGET, supra note 7, at 245. But see Map Death in America, Post Mortem: Death Investigation in
America, PBS FRONTLINE NEWS, http://www.pbs.org/wgbh/pages/frontline/post-mortem/map-death-in-america (last
visited June 23, 2011) (reporting the Kentucky MEO 2010 annual fiscal budget of $4,328,240).
241 2008-2010 BUDGET, supra note 239, at 323.
242 Ky, OFFICE OF THE STATE BUDGET DiR., BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS
2006-2008 361, available at http://www.osbd.ky.gov/NR/rdonlyres/270A6FDB-A3CE-450C-9340-
643B561947ED/0/0608_BOC_Volumel .pdf [hereinafter 2006-2008 BUDGET].
24 2008-2010 BUDGET, supra note 239, at 323.
24 2006-2008 BUDGET, supra note 242, at 361.
45° Ky. OFFICE OF THE STATE BUDGET Dir., BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS.
2004-2006 3; available at http://www.osbd.ky.gov/NR/rdonlyres/D7FA7219-C1 BE-49AC-B28B-
17F4D93C1007/0/0506BOC_Vol1C.pdf [hereinafter 2004-2006 Ky. BUDGET].
*46 2006-2008 Ky. BUDGET, supra note 242, at 361.
124
2005°7 4,590,500 3,724,000 (866,500)
2004748 4,267,500 4,052,100 (215,400)
20037” 4,200,400 4,055,200 (145,200)
20027” 2,947,500 3,380,100 432,600
Notably, in almost every year since 2002, the Kentucky General Assembly has funded the MEO
below the amount it has requested. Furthermore, Kentucky funded the MEO at $.94 per capita in
2009,7°! which is far below the national average for States’ per capita spending of $1.76 on
statewide medial examiner offices.>? Due to the limited resources provided by the
Commonwealth, the MEO has performed private autopsies for other states and has repeatedly
sought federal Coverdell funding “to replace badly outdated equipment.”?*? In 2008, the MEO
also closed its Toxicology Office, and now obtains any necessary toxicology services from AIT
Laboratories, Inc., in Indianapolis, Indiana.7* Furloughs of Commonwealth employees in 2010
and 2011 have also caused the MEO to be understaffed at times.”°° Furthermore, the Chief
Medical Examiner has stated that the MEO has not sought NAME accreditation for all four of its
offices due to a lack of resources to support the application process.”*° Despite budget
constraints, Kentucky’s Chief Medical Examiner states that the MEO has no case backlog and is
“still doing good, complete, thorough forensic examinations.”**”
Coroners
It is the responsibility of the Commonwealth’s individual counties to provide compensation for
each of the counties’ elected coroners and appointed deputy coroners. Pursuant to the Kentucky
247 2004-2006 Ky. BUDGET, supra note 245, at 3.
48 Ky, OFFICE OF THE STATE BUDGET Dir., BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS
2002-2004 103, available at http://www.osbd.ky.gov/NR/rdonlyres/FFEA54DB-0257-46EC-9071-
17D61933D6BD/0/0204BOC_Vol1B.pdf [hereinafter 2002-2004 Ky. BUDGET].
* 002-2004 Ky. BUDGET, supra note 248, at 103.
250 Ky, OFFICE OF THE STATE BUDGET Dir., BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS.
2000-2002 116 (2002), available at http://www.osbd.ky.gov/NR/rdonlyres/6F0835D5-1548-4250-9A0D-
1885D01AC4AA/0/0002BOC_Vol1B.PDF [hereinafter 2000-2002 Ky. BUDGET].
3! Tn 2009, Kentucky allocated $4,093,400 to the MEO. 2008-2010 Ky. BUDGET, supra note 239, at 323.
According to the US Census Bureau, the 2010 statewide population of Kentucky was 4,339,367. Kentucky
QuickFacts, U.S. CENsus BUREAU, http://quickfacts.census.gov/qfd/states/21000.html (last visited June 20, 2011).
252 NAS REPORT 2009, supra note 2, at 250.
253 Manning, supra note 147, at 40; FY2009 Coverdell, supra note 216. In fiscal year 2007, Coverdell funds were
used to buy a “digital X-ray unit and digitizer to replace an outdated model” and other necessary microscopes.
FY2007 Paul Coverdell Forensic Science Improvement Act Program Report to Congress—Funding Table, NAT’L
Inst. OF JUSTICE, _ http://www.ojp.usdoj.gov/nij/topics/forensics/lab-operations/capacity/nfsia/2007-funding-
table.htm (last visited June 20, 2011). See also FY2008 Coverdell Report to Congress—Funding Table, NAT’L INsT.
OF JUSTICE, http://www.ojp.usdoj.gov/nij/topics/forensics/lab-operations/capacity/nfsia/2008-funding-table.xls (last
visited June 20, 2011) (noting funds will be allocated to the MEO “to replace an antiquated x-ray system in the
Louisville Medical Examiner’s Office”); FY2006 Coverdell Report to Congress—Funding Table, NAT’L INsT. OF
JUSTICE, http://www.ojp.usdoj.gov/nij/topics/forensics/lab-operations/capacity/nfsia/fy06-coverdell-funding.xls (last
visited June 20, 2011); Awards in Fiscal Year 2004 Under the Paul Coverdell Forensic Sciences Improvement
Grants Program, NaTL INST. OF ‘JUSTICE, _http://www.ojp.usdoj.gov/nij/topics/forensics/lab-
operations/capacity/nfsia/fy2004_table.htm (last visited June 20, 2011).
ne Interview with Dr. Tracey Corey & Mandy Combest, supra note 113.
2s
a
57 See Manning, supra note 147, at 40; Interview with Dr. Tracey Corey & Mandy Combest, supra note 113.
125
Revised Statutes (KRS), minimum salaries for coroners and deputy coroners are based on a
sliding scale related to county population and certification status of the coroner.?** In practice,
coroners are typically compensated above the minimum salary prescribed by statute. For
example, under KRS 64.185, Boone County’s certified coroner must be compensated between
$13,200 and $16,800 each year.*° However, in 2009 Boone County’s coroner received an
annual salary of $35,870." Coroners and deputy coroners in Kentucky also may retain full- or
part-time jobs in addition to fulfilling their duties as coroners, making it difficult to determine
whether coroners are funded adequately for carrying out their statutory duties.7"!
Table 3, below, provides the 2010 and 2011 operating budgets of county coroner offices in
Boone, Fayette, Kenton, Jefferson, Warren, and Wayne Counties.” Included in each county’s
operating budget are the salaries for coroners and deputy coroners, travel expenses, and other
incidentals.” Table 3 also provides each county’s per capita spending on coroner offices, based
on the U.S. Census Bureau’s 2010 estimated population for each of the six counties.”
58 Ky, REV. STAT. ANN. § 64.185 (West 2011) (noting that certification, basically a completion of continuing
education, is issued jointly by the DOCJT, Justice and Public Safety Cabinet, and the MEO).
°° See generally Ky. REV. STAT. ANN. § 64.185(1), (3) (West 2011).
269 BooNE COUNTY FISCAL Court, BupGet: FY 2011 Expenses 1 (2010), available at
http://www. boonecountyky.org/finance/budget/FY 1 1/Expenses.pdf. According to the U.S. Census Bureau, Boone
County’s population estimate in 2010 was 118,811 persons; in 2000, the estimate was 85,991 persons. Boone
County, Kentucky QuickFacts, U.S. CENSUS BUREAU, http://quickfacts.census.gov/qfd/states/21/21015.html (last
visited June 20, 2011).
2! Kentucky coroners and deputy coroners may also be funeral home directors and/or embalmers, which raises
ethical issues. See, eg., Meet the Candidates, MAapisoN CourIER, May 12, 2010,
http://madisoncourier.com/main.asp?SectionID=178&SubSectionID=286&ArticleID=56746 (last visited June 20,
2011); Amy Hagedorn, Kappel, Billings, Running for County Coroner Position, Courter-J. (Louisville, Ky.), Oct.
7, 2010, at H6; see also Erin L. McCoy, Coroner Candidates Debate Ethics of Association with Funeral Home, Ky.
STANDARD, Feb. 3, 2011, http://www.kystandard.com/content/coroner-candidates-debate-ethics-association-funeral-
home (last visited June 20, 2011).
2 The Kentucky Death Penalty Assessment Team was unable to obtain coroner funding information for every
county in Kentucky. The counties selected above represent a geographic diversity of Kentucky, and also includes
the Commonwealth’s largest counties by population: Jefferson and Fayette.
263 See, e.g. BOONE COUNTY FISCAL CouRT, BUDGET: FY 2011 EXPENSES 1 (2010), available at
http://www. boonecountyky.org/finance/budget/FY 1 1/Expenses.pdf.
763 KENTON COUNTY Ky. TREASURER, KENTON COUNTY 2011 BUDGET 7 (2010), available at
http://www.kentoncounty.org/county_departments/county_finance/treasurer/docs/Budget_11.pdf.
°64 We have used the U.S. Census Bureau’s 2010 estimated populations for each of the Kentucky counties to
calculate the per capita spending. See State & County QuickFacts, U.S. CENSUS BUREAU,
http://quickfacts.census.gov/qfd/maps/kentucky_map.html (last visited June 20, 2011).
126
Table 3
Select County Coroners’ Operating Budgets from 2010-2011
Boone Fayette Jefferson Kenton Warren Wayne
County County County County County?* County
(County Seat) (Burlington) (Lexington) (Louisville) (Covington) Bovis (Monticello)
ireen)
Population 118,811 295,803 741,096 159,720 113,792 20,813
Estimate
2011 Budget [| $118,690 | $738,330" [ $1,151,500°* | __$149,000°° $87,413 $39,189°”
2011 Per $1.00 $2.50 $1.55 $0.93 $0.77 $1.88
Capita
Spending
2010 Budget [| $101,980°" | $726,100°” | $1,149,700°% $142,350°% $87,904 $38,8127"
2010 Per $0.86 $2.45 $1.55 $0.89 $0.77 $1.86
Capita
Spending
In 2010, per capita funding of coroners’ offices ranged from $.77 to $2.45 in the above counties,
indicating vast disparity in the resources dedicated to coroners’ services across the
Commonwealth. For example, Fayette County funded its coroner office at three times the per
capita rate of Warren County. Furthermore, each of the selected counties fund their coroner
offices at a rate below the national average for states’ per capita spending on county-based
coroner or medial examiner systems.?” Finally, while Fayette County funds its coroner office at
265 Telephone Interview by Paula Shapiro with Jerry Pearson, Treasurer, Warren County, Ky. Gov't, Nov. 30, 2010
(on file with author) (providing each of the Budget figures in this column).
266 BooNE COUNTY FISCAL Court, BupGeT: FY 2011 Expenses 1-2 (2010), available at
http://www.boonecountyky.org/finance/budget/FY 1 1/Expenses.pdf.
26T LEXINGTON-FAYETTE URBAN COUNTY Gov’t, ADOPTED BuDGET: FY 2010-2011 13 (2010), available at
http://lexingtonky.gov/Modules/ShowDocument.aspx?documentid=12200.
268" LOUISVILLE-JEFFERSON COUNTY, LOUISVILLE METRO OPERATING BUDGET: FY 2010-2011, 182 (2010),
available at http://www. louisvilleky.gov/NR/rdonlyres/4B582 1 CE-1 AFC-4F69-A 19C-
C646FA9FF09B/0/eCoroner.pdf [hereinafter LOUISVILLE BUDGET 2010-2011].
269 KENTON COUNTY, Ky. TREASURER, KENTON COUNTY 2011 BUDGET 7 (2010), available at
http://www.kentoncounty.org/county_departments/county_finance/treasurer/docs/Budget_11.pdf.
27° WAYNE COUNTY FISCAL Court, FY 2012 BupGeT REporRT 12 (2010), available at
http://www.waynecounty.ky.gov/NR/rdonlyres/2B3F88D3-0672-446E-8208-
9FEEB760ACA 1/240703/budgetfy 12. pdf.
771 BOONE COUNTY FISCAL CouURT, BUDGET: FY 2010 EXPENSES 1 (2009), available at
http://www.boonecountyky.org/finance/budget/FY 10/FY 10Expenses.pdf.
272” LEXINGTON-FAYETTE URBAN COUNTY GOv’T, ADOPTED BUDGET: FY 2009-2010 6 (2009), available at
http://www.lexingtonky.gov/Modules/ShowDocument.aspx?documentid=7700 [hereinafter LEXINGTON 2009-2010
BUDGET].
273 LOUISVILLE BUDGET 2010-2011, supra note 268, at 182.
274 KENTON COUNTY, Ky. TREASURER, KENTON COUNTY 2010 BUDGET 7 (2009), available at
http://www.kentoncounty.org/county_departments/county_finance/treasurer/docs/Budget_10.pdf.
275 WAYNE COUNTY FISCAL CouRT, FY 10 BupGET REPORT 10 (2010), available at
http://www.waynecounty.ky.gov/NR/rdonlyres/2B3F88D3-0672-446E-8208-
9FEEB760ACA 1/2407 13/budgetreportfy 10.pdf.
77° NAS REPORT 2009, supra note 2, at 250 (“county systems’ per capita cost ranged from $1.31 to $9.19, with a
mean of $2.89”). We note that the per capital spending averages described in the 2009 NAS Report encompass
127
the highest per capita rate of the counties selected for analysis, since 2004, this coroner office has
received at least $65,000 less than the amount adopted in the county’s annual budget.”””
Conclusion
As evidenced by testing backlogs, demonstrated resource limitations, and funding levels below
national averages, Kentucky’s forensic laboratories, MEO, and county coroner systems are not
adequately funded. Therefore, based on the Kentucky Assessment Team's information, the
Commonwealth of Kentucky is not in compliance with Recommendation #2.
various forms of medical examiner and coroner systems, only a few of which resemble that of the Commonwealth’s
system whereby coroners and medical examiners perform medicolegal investigation.
2 For example, in 2004, the county adopted an annual budget of $514,580 for the county’s coroner office,
although the coroner actually received $449,577, a deficit of $65,003. LEXINGTON-FAYETTE URBAN COUNTY
Gov’T, 2004 BUDGET IN BRIEF 8 (2004), available at
http://lexingtonky.gov/modules/ShowDocument.aspx?documentid=2881; LEXINGTON-FAYETTE URBAN COUNTY
Gov’T, ADOPTED BUDGET: FY 2005-2006 41 (2005), available at
http://lexingtonky.gov/modules/ShowDocument.aspx?documentid=2883; LEXINGTON-FAYETTE URBAN COUNTY
Gov’T, ADOPTED BUDGET: FY 2007-2008 24 (2007), available at
http://lexingtonky.gov/modules/ShowDocument.aspx?documentid=2889; LEXINGTON 2009-2010 BUDGET, supra
note 272. We were only provided data on the Lexington-Fayette County Coroner funding for 2004, and 2006-2008.
128
CHAPTER FIVE
PROSECUTORIAL PROFESSIONALISM
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
The prosecutor plays a critical role in the criminal justice system. Although the prosecutor
operates within the adversarial system, the prosecutor's obligation is to protect the innocent as
well as to convict the guilty, to guard the rights of the accused as well as to enforce the rights of
the public.
Because prosecutors are decision-makers on a broad policy level and preside over a wide range
of cases, they are sometimes described as “administrators of justice.” Each prosecutor has
responsibility for deciding whether to bring charges and, if so, what charges to bring against the
accused. S/he must also decide whether to prosecute or dismiss charges or to take other
appropriate actions in the interest of justice. Moreover, in cases in which capital punishment can
be sought, prosecutors have enormous discretion in deciding whether or not to seek the death
penalty. The character, quality, and efficiency of the whole system are shaped in great measure
by the manner in which the prosecutor exercises his/her broad discretionary powers.
While the great majority of prosecutors are ethical, law-abiding individuals who seek justice, the
existence of prosecutorial misconduct can affect innocent lives and society at large. Nationwide,
between 1970 and 2003, individual judges and appellate court panels cited prosecutorial
misconduct as a factor when dismissing charges at trial, reversing convictions, or reducing
sentences in at least 2,012 criminal cases, including both death penalty and non-death penalty
cases.’
Prosecutorial misconduct can encompass various actions, such as failing to disclose exculpatory
evidence, abusing discretion in filing notices of intent to seek the death penalty, racially
discriminating in making peremptory challenges, covering-up and endorsing perjury b
informants and jailhouse snitches, or making inappropriate comments during closing arguments.
The causes of prosecutorial misconduct range from an individual’s desire to obtain a conviction
at any cost to lack of proper training, inadequate supervision, insufficient resources, and
excessive workloads.
Solutions to the problem of prosecutorial misconduct and wrongful convictions include adequate
funding to prosecutors’ offices, adoption of standards to ensure manageable workloads for
prosecutors, and requiring that prosecutors scrutinize cases that rely on eyewitness
identifications, confessions, or testimony from witnesses who receive a benefit from the police or
prosecution. Perhaps most importantly, there must be meaningful sanctions against prosecutors
who engage in misconduct.
' Steve Weinberg, Breaking the Rules: Who Suffers When a Prosecutor Is Cited for Misconduct?, CTR. FOR PUB.
INTEGRITY (2004), http://www. publicintegrity.org/pm (last visited Nov. 11, 2011).
Id.; see also Police and Prosecutorial Misconduct, INNOCENCE PROJECT,
http://www.innocenceproject.org/understand/G ovemment- Misconduct.php (last visited Nov. 11, 2011).
129
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
A. Kentucky's Unified Prosecutorial System
Kentucky is divided into 120 counties, which are arranged into fifty-seven circuit court districts.
Each circuit court district elects a Commonwealth's Attomey, who primarily practices in the
district’s circuit courts, and each county elects a County Attomey who practices primarily in the
county’s district court! To assist with their responsibilities, the Attomey General, each
Commonwealth's Attorney, and each County Attorney may ap ppoint assistant prosecutors and
hire additional support staff, such as investigators and paralegals.
Furthermore, since 1978, Kentucky has operated a Unified Prosecutorial System, administered
by the Kentucky Prosecutors Advisory Council (Council), “in order to maintain uniform and
efficient enforcement of the criminal law and the administration of criminal justice throughout
the Commonwealth” and to encourage cooperation among law enforcement officials.® Under
this system, the Attorney General acts as the chief law enforcement officer and chief prosecutor
of Kentucky.”
1. Commonwealth's A ttomeys
Each of Kentucky’s fifty-seven circuit court districts elects a Commonwealth’ s Attomey, who
represents the Commonwealth’s interests in circuit courts for six-year renewable terms.® To be
eligible, Commonwealth's Attorneys must be at least twenty-four years old, have been a resident
of Kentucky for at least two years, have resided in the county and district i in which s/he serves
for at least one year, and have practiced law for at least four years.° All Commonwealth’s
Attomeys and Assistant Commonwealth’s Attorneys, who must be practicing attorneys licensed
within the Commonwealth, are prohibited from acting as a defense attorney, except in cases in
which s/he is a party.!°
3 AOC Map of Kentucky Judicial Districts, Ky. CT. oF JUSTICE, http://courts.ky.gov/districtcourt/mapdistrict.htm
(last visited Nov. 11, 2011) (showing 120 counties and fifty-seven circuit court districts); Ky. Const. §§ 112
(establishing a circuit court in each circuit court district), 113 (establishing a district court for every county).
4 Ky. Const. §§ 97 (Commonwealth’s Attorney in each circuit court district), 99 (County Attomey in each
county); Ky. Rev. STAT. ANN. § 15.725 (West 2011); Prosecutors Advisory Council, OFFICE OF THE Ky. ATT’Y
Gen, http://ag.ky.gov/criminal/pac/ (last visited Nov. 11, 2011).
5 Ky. Rev. STAT. ANN. §§ 15.100 (Attomey General), 15.150 (stenographic, investigative, and clerical help),
15.760 (Commonwealth's A ttomey), 15.770 (West 2011) (County Attorney).
6 Ky. Rev. STAT. ANN. § 15.700 (West 2011); Prosecutors Advisory Council, OFFICE OF THE Ky. ATT’Y GEN.,
http://ag.ky.gov/criminal/pac/ (last visited Nov. 11, 2011).
7 “Ky. REV. STAT. ANN. §§ 15.010(1) (“The Attorney General is the head of the Department of Law”), 15.020
(“[t]he Attorney General is the chief law officer . . . and the legal advisor . . .”), 15.700 (West 2011) (". . . the
Attomey General as chief law enforcement officer . . . [and] chief prosecutor of the Commonwealth.”).
8 Ky. Const. § 97. The Kentucky General Assembly has authority to abolish a Commonwealth’s A ttomey
position anytime, and at the end of the incumbent's term his/her duties may be taken over by the appropriate County
Attomey. Ky. Const. § 108. However, we are unaware of any instance of this occurring.
° Ky. Const. § 100.
0 Ky. REV. STAT. ANN. §§ 15.740, 15.760(3) (West 2011).
130
As of January 1, 2008, Kentucky employed fifty-one full-time Commonwealth's Attorneys and
six part-time Commonwealth’ s A ttomeys, who are permitted to maintain private law practices. |!
Commonwealth's Attorneys and Assistant Commonwealth’s Attorneys who hold full-time
offices or who represent a circuit court district containing a first-class city, second-class city or
urban-county government, or a third-class city with a population of 68,000 or more, are not
permitted to engage in the private practice of law.’ Part-time Commonwealth’s A ttomeys and
part-time Assistant Commonwealth’s Attorneys are not prohibited from engaging in the private
practice of law.’ Each Commonwealth’s Attomey may hire stenographic, secretarial, and
clerical staff, and investigative and other personnel, the number of which is “based on real need”
and approved by the Council.’ Commonwealth’s Attorneys also may employ “private counsel
to assist [them] in the prosecution of [] criminal case[s].” 18
The Commonwealth's Attomey has the duty to prosecute violations of the criminal and penal
laws which are tried in the circuit court of his/her judicial circuit.'© Specifically,
Commonwealth's Attorneys are responsible for all felony prosecutions, including all capital-
eligible cases.'’ In addition, the Commonwealth’s Attomey has “the primary responsibility
within his[/her] judicial circuit to present evidence to the grand jury concerning such
violations.”'® Commonwealth’s Attorneys also are responsible for serving as special prosecutors
in cases where regularly elected prosecutors have been disqualified’? and assisting on multi-
disciplinary teams involving child sexual abuse cases.”°
2. County Attorneys
Kentucky’ s Unified Prosecutorial System also is composed of County Attomeys, who are elected
in each of the 120 counties to four-year terms, and practice primarily in county district courts.”!
County Attomeys and their assistants prosecute violations by adults or juveniles subject to the
criminal and penal laws within his/her district court’s jurisdiction, such as “DUI, domestic
1 OFFICE OF THE KY. STATE BUDGET Dir., 2010-2012 BUDGET OF THE COMMONWEALTH 35-38 (Jan. 19, 2010),
available at hittp://www.osbd.ky.gov/NR/rdonlyres/4C 8577D 6-9974-490F-8748-
CO6CEAC64E45/0/1012BOCV olumel.pdf [hereinafter 2010-2012 BUDGET]. Part-time Commonwealth's attorneys
may become a full-time Commonwealth's attomey by (a) not engaging in private practice, and (b) giving written
notice, at least ninety or more days prior to the commencement of a budget cycle, to the Council of his intent to
become full-time. Ky. REV. STAT. ANN. § 15.757(1), (2) (West 2011) (prohibiting full-time from reverting to part-
time).
1 Ky. REV. STAT. ANN. §§ 15.755(3), 15.760(3) (West 2011).
'S Ky. Rev. STAT. ANN. § 15.755(3) (West 2011).
4 Ky. REV. STAT. ANN. § 15.760(1)-(2) (West 2011).
‘5 Commonwealth v. Hubbard, 777 S.W.2d 882, 883 (Ky. 1989).
16 Ky. Rev. STAT. ANN. §§ 15.725(1), 69.010(2) (West 2011) (noting an exception for Commonwealth's
Attorneys whose county contains a city of the first or second class or urban-county government).
17 2010-2012 BUDGET, supra note 11, at 37 (“those prosecutions in which the penalty of death may be imposed”).
'8 Ky. REV. STAT. ANN. § 15.725(1) (West 2011).
19 Ky, Rev. STAT. ANN. § 15.735 (West 2011); see also Ky. REV. STAT. ANN. §§ 15.730 (Commonwealth's
Attorneys to serve as special prosecutors in criminal cases as required by the Kentucky Attomey General), 15.733-
.735 (West 2011) (listing the scenarios in which the prosecuting attomey is disqualified and a special prosecutor
must be appointed).
Ky. REV. STAT. ANN. § 15.727 (West 2011).
21 Ky. Const. § 99; supra note 3.
131
violence, child abuse, all juvenile crime, traffic violations, misdemeanor theft, and assault,”
Preliminary hearings in felony cases are handled by County Attorneys, unless otherwise
determined by agreement with the Commonwealth’s Attomey, in which case the
Commonwealth's Attorneys Office handle the hearings, such as in Fayette and Warren
Counties.”
Both Commonwealth's and County Attomeys are required to submit annual reports to the
Council on activity within their jurisdictions.” Finally, Commonwealth's and County A ttomeys
and their assistant prosecutors are required, by statute, to successfully complete training on
domestic violence and sexual assault crimes.”
3. Office of the Kentucky Attomey General
a. Qualifications of Attorney General
Kentucky’s Attomey General is elected to a four- year, term, and may serve two consecutive
terms plus additional terms after a period of four years.”° The Attomey General must be at least
thirty years old, must have been a Kentucky resident for at least two years before his/her
election, and must have been a licensed, practicing lawyer for at least eight years before his/her
election.”” During his/her term in office, the A ttomey General is prohibited from engaging in the
private practice of law.”
The Attomey General must appoint a Deputy Attorney General who must be licensed to practice
law in Kentucky, must have resided in the Commonwealth for the two years, preceding his/her
taking office, and must have been a licensed attorney for at least eight years.”° S/he will “serve
at the pleasure of the Attorney General and [] perform the duties [s/]he may designate.” 3° The
Attorney General may appoint Assistant Deputy Attorneys General, hire additional prosecutors
and special attorneys, and may employ any stenographic, investigative and other clerical help, as
s/he deems necessary and advisable to carry out the business of the Kentucky Department of
Law.*!
2 Ky. Rev. STAT. ANN. § 15.725(1) (West 2011); Frequently Asked Questions, Ky. COUNTY ATTORNEYS Ass’N,
http://kycountyattomeys.org/faq.php (last visited Nov. 11, 2011). In addition, “[mJost counties have Family Court,
Drug Court, and/or truancy Court requiring representation” by the County Attomey. 2010-2012 BuDGET, supra
note 11, at 38.
33 See Ky. REV. STAT. ANN. § 15.725(3) (West 2011) (“Each Commonwealth’s attorney and county attorney may
enter into agreements to share or redistribute prosecutorial duties in the Circuit and District courts.”).
24 Ky. REV. STAT. ANN. § 15.720(1)-(2) (West 2011) (reports include “suggestions and recommendations for the
uniform enforcement of the criminal laws of the Commonwealth”).
Ky. REV. STAT. ANN. § 15.718(2) (West 2011).
8 Ky. Const. §§ 91, 93.
27 Ky. Const. §§ 91, 92.
28 Ky. REV. STAT. ANN. § 15.015 (West 2011).
9 Ky. Const. § 122 (eligibility of circuit judges); Ky. REV. STAT. ANN. § 15.100(1) (West 2011) (requiring the
Deputy Attorney General to have the same qualifications as a Kentucky circuit judge).
8” Ky. REV. STAT. ANN, § 15.100(1) (West 2011).
5! Ky, REV. STAT. ANN. §§ 15.100(1)-(4), 15.150 (West 2011) (limiting the hiring of clerical staff to be within the
limits of appropriations made for that purpose and noting that “[iJinvestigative personnel as designated by the
Attomey General shall have the power of peace officers”).
132
b. Responsibilities of the Attorney General
As the chief law officer of the Commonwealth and all of its departments, commissions, agencies,
and political subdivisions, as well as the legal adviser to these entities and state officers, the
Attorney General, upon request, must furnish written opinions regarding any of his/her official
duties.’ Among his/her “range of legal, investigative, and administrative duties,” the Attorney
General is responsible for appearing on behalf of the Commonwealth in all Kentucky Supreme
Court or Court of Appeals cases in any case in which the Commonwealth has an interest,
including criminal cases.** The Attorney General’s Office of Criminal Appeals handles the
direct appeals and post-conviction proceedings for all capital cases arising within the
Commonwealth.
Upon the written request of any Commonwealth's or County Attomey, the Govemor, or any of
the Commonwealth's courts and grand juries, the Attomey General may assist in criminal
proceedings or appoint other Commonwealth’s or County Attomeys to provide assistance.” If
authorized by the Council to “initiate, intervene, or supersede a local prosecutor,” the A ttomey
General must petition the circuit court to disqualify the Commonwealth's or County Attorney
and, if sustained, must also file and prosecute a complaint against that local prosecutor.”
In conjunction with the Council, the Attorney General is responsible for the legal education and
training of the Commonwealth's prosecutors, including mandatory education courses concerning
“the dynamics of domestic violence, child physical and sexual abuse .. . [,] available community
resources and victims services, and reporting requirements.”*” The A ttomey General is required
to develop and distribute to every Commonwealth prosecutor a manual on domestic violence
crimes.*® There is no statutorily-mandated training on the prosecution of death penalty cases.
The Attorney General must submit biennial reports to the Kentucky General Assembly and
Governor on the activities of the unified prosecutorial system, including “suggestions and
recommendations for the uniform enforcement of the criminal laws of the Commonwealth.”*°
3 Ky. REV. STAT. ANN. §§ 15.020, 15.025 (West 2011) (conditions requiring an opinion from the Attomey
General).
33 2010-2012 BUDGET, supra note 11, at 35 (noting that the Office of the Attomey General “has ten organizational
units to support the mission of the office’); Ky. REV. STAT. ANN. §§ 15.020, 15.090 (West 2011) (“The Attorney
General may prosecute an appeal, without security, in any case from which an appeal will lie whenever, in his
Judgment, the interest of the Commonwealth demands it.”).
4 “Ky. Rev. STAT. ANN. §§ 15.020, 15.090 (West 2011); 2010-2012 BUDGET, supra note 11, at 35 (“The Office of
Criminal Appeals represents the Commonwealth in all state and federal criminal appeals in which the
Commonwealth has an interest.”).
38 Ky. REV. STAT. ANN. §§ 15.190, 15.200, 15.205 (West 2011). See generally Ky. REV. STAT. ANN. § 15.730
(West 2011) (Commonwealth’s A ttomeys and County A ttomneys as special prosecutors).
°° Ky. REV. STAT. ANN. § 15.715(1)-(3) (West 2011).
37 Ky. REV. STAT. ANN. §§ 15.718, 15.705(4) (West 2011). The Attorney General is also mandated to have
specially trained staff available to assist prosecutors in child sexual abuse cases. Ky. REV. STAT. ANN. § 15.948
(West 2011).
Ky. REV. STAT. ANN. § 15.717 (West 2011).
39 Ky. REV. STAT. ANN. § 15.720(1) (West 2011). Commonwealth’s and County attorneys are required by the
Council to annually report on its activities during the preceding calendar year. Ky. REV. STAT. ANN. § 15.720(2)
(West 2011).
133
4. The Prosecutors Advisory Council
In 1976, the Commonwealth established the Council to administer the unified prosecutorial
system, including the 177 Commonwealth’s and County A ttomeys and their employees.” The
Council consists of nine members, all of whom are Kentucky residents, and includes the
Attomey General, who serves as chairperson of the Council."! The other eight members are
appointed by the Governor and consist of three Commonwealth's Attomeys, three County
Attorneys and two non-attorney citizen members, all from geographically diverse locations
across the Commonwealth.”
The Council oversees the financial administration of Kentucky’s Unified Prosecutorial System.
The Council is also responsible for program development and continuing legal education for
Kentucky prosecuting attorneys, including “programs on the investigation and prosecution of
abuse, neglect, and exploitation of the elderly and other crimes against the elderly.”“* The
Council co-sponsors, with the Attorney General, the annual Kentucky Prosecutors Conference,
provides basic training courses for newly-elected Commonwealth's and County Attomeys, and
sponsors the Kentucky Prosecutors Institute, a week-long trial skills course for new
prosecutors.*° The Council also is responsible for the Attomey General’s Victim and Witness
Protection program, for overseeing the preparation of the Child Sexual Abuse Prosecution
Manual, and for publishing an annual data collection report on sexual offenses involving
minors.
The Council has the power to issue subpoenas for witnesses, “records, books, papers, and
documents as it may deem necessary for investigation of any [authorized] matter.”*’ Finally, the
Council is supported by the Kentucky Attomey General’s Office, and it may delegate to the
Attomey General responsibilities the Council deems necessary.*°
B. Funding of Kentucky’s Unified Prosecutorial System
40 Ky. Rev. STAT. ANN. § 15.705(1) (West 2011); Prosecutors Advisory Council, OFFICE OF THE Ky. ATT’y GEN.,
http://ag.ky.gov/criminal/pac/ (last visited Nov. 11, 2011).
4” Ky. REV. STAT. ANN. § 15.705(2)-(3) (West 2011) (noting that each “serve at the pleasure of the Governor’).
2 Ky. REV. STAT. ANN. § 15.705(2) (West 2011) (members chosen from lists prepared by the Commonwealth's
Attorneys Association and the County A ttomeys Association).
43 Ky. REV. STAT. ANN. §§ 15.705(4), 15.708 (West 2011) (“The Prosecutors Advisory Council may apply for and
receive funds, public or private, for the purpose of assisting Commonwealth's and county attorneys in providing
crime victim assistance or in criminal prosecution . . . .”).
4 Ky. REV. STAT. ANN. §§ 15.705(4), 15.775 (West 2011). While Commonwealth’s Attomeys and County
Attorneys are not required to complete this training, Assistant County Attorneys and Assistant Commonwealth's
Attorneys are mandated to complete a four hour program initially and a two hour update on the abuse training every
five years. Ky. REV. STAT. ANN. § 15.775(2)-(3) (West 2011).
‘45 Prosecutors Advisory Council, OFFICE OF THE Ky. ATT’y GEN., http://ag.ky.gov/criminal/pac/ (last visited Nov.
11, 2011).
46” Ky. Rev. STAT. ANN. § 15.706 (West 2011) (authorizing the Council to promulgate administrative regulations
to specify the information collected on sexual offenses involving minors); Prosecutors Advisory Council, OFFICE OF
THE Ky. ATT’y GEN., http://ag.ky.gov/criminal/pac/ (last visited Nov. 11, 2011).
“Ky. Rev. STAT. ANN, § 15.707 (West 2011)
“Ky. REV. STAT. ANN. § 15.710 (West 2011).
134
The Council and the Kentucky Attomey General’s Office receive funding through appropriations
from the Kentucky General Assembly.‘? Commonwealth’s and County Attorney offices may
receive funding from the General Assembly and the local jurisdiction in which the office is
located.*? Each Commonwealth's Attomey and County Attomey submits a biennial proposed
budget to the Council, which then includes this proposal in the budget of the unified
prosecutorial system submitted as part of the Attorney General’s budget.°' The General
Assembly’s biennial appropriations are distributed to the Attorney General and also to the
Council for distribution to each Commonwealth's and County office based upon the proposed
budgets submitted by each office.”
Table 1, below, lists the 2000 to 2012 appropriations from the Kentucky General Assembly to
the Attomey General, Commonwealth's Attorneys, and County Attorneys, for the operations of
all office responsibilities, including criminal prosecutions.*
Table 1 - General Assembly Appropriations to Unified Prosecutorial System, 2000-2012
Fiscal Y ear Attorney Commonwealth’s County Unified
General Attorneys Attorneys Prosecutorial
System
2000 23,323,600 22,122,700 18,682,200 40,804,900
2001 23,755,200 23,634,200 20,113,200 43,747,400
2002 24,240,700 24,837,900 21,396,900 46,234,800
2003 23,609,000 26,953,200 21,673,800 48,627,000
2004 23,034,800 27,510,200 22,634,000 50,144,200
2005 26,804,400 29,018,800 23,454,00 52,472,800
2006 27,201,500 30,402,378 25,804,200 56,206,578
2007* 26,443,500 32,315,800 27,384,200 59,700,000
2008* 28,603,700 33,893,000 29,141,500 61,272,300
2009% 25,868,800 34,940,300 29,220,300 N/A
2010* 27,679,100 38,183,400 32,100,200 69,517,300
a Ky. REV. STAT. ANN. § 15.750(1) (West 2011).
Id.
Id. “Nothing contained herein shall be construed as limiting, restricting, or terminating the authority of local
governmental units, including cities, counties, and urban counties, to provide financial support for the office of any
prosecutor.” Id.
°2 Td. See also Ky. REV. STAT. ANN. § 15.725(4) (West 2011) (The Council “shall in allocating resources between
the Commonwealth's and county attomey take the agreements [sharing responsibilities] into account.”). The
Commonwealth's General Fund and Restricted Fund constitute the appropriations for prosecutorial services in
Kentucky.
53 2010-2012 Budget, supra note 11, at 35-38 (explaining that 2011 and 2012 figures are “Enacted” amounts);
OFFICE OF THE Ky. STATE BuDGET Dir., 2008-2010 BUDGET OF THE COMMONWEALTH 40-44 (2008), available at
http://www.osbd.ky. gov/NR/rdonlyres/1015785C- 71AD-4CCC-9BB5-4F1B42511BA 5/0/0810 BOC_Volumel.pdf;
OFFICE OF THE Ky. STATE BUDGET DiR., 2006-2008 BUDGET OF THE COMMONWEALTH 40-44 (2006), available at
http://www.osbd. ky. gov/NR/rdonlyres/270A GEDB- -A 3CE-450C-9340-643B561947ED/0/0608 BOC_Volumel.pdf;
OFFICE OF THE Ky. STATE BUDGET DirR., 2005-2006 BUDGET OF THE COMMONWEALTH 26-30 (2005), available at
http://www.osbd.ky. gov/NR/rdonlyres/FC7D E3BE- B95B-4EF6-96E1-5AB012FFD9BA/0/0506BOC_Vol1A pdf;
OFFICE OF THE Ky. STATE BUDGET DiR., 2002-2004 BUDGET OF THE COMMONWEALTH 34-38 (2002), available at
http://www.osbd. ky. gov/NR/rdonlyres/1C77FAD4- A6FC-475D-8CE0-481FF804F16C/0/0204BOC_Vol1A.pdf;
OFFICE OF THE Ky. STATE BUDGET Dir., 2000-2002 BUDGET OF THE COMMONWEALTH 19-24 (2000), available at
http://www.oshd.ky. gov/NR/rdonlyres/A D41201D- EE1D-4FA 2-83E6-D5DB94A 1BE5D/0/0002BOC_Vol1A.PDF.
135
2011* 26,277,500 37,761,700 31,549,300 68,717,400
2012* 24,275,700 37,220,300 31,161,700 67,903,000
* enacted appropriations, not actual;
“no reference to Unified Prosecutorial System budget in this year
Appropriations from the General Assembly cover expenses incurred by Commonwealth's
Attomeys, the Attommey General and his/her assistants, County Attorneys in performance of their
criminal prosecution duties, and salaries of all of the Commonwealth’s prosecutors.** Counties
may provide additional compensation to each Commonwealth’s or County prosecutor out of the
county treasury or fiscal court. For example, for fiscal year 2011 to 2012, the Louisville-
Jefferson County Metro Council approved funds totaling $7,263,100 for the Jefferson County
Attomey Office and $1,170,200 for the Jefferson County Commonwealth's Attomey.°°
In 2010, the Attorney General received an annual salary of $108,720°” and every full-time,
elected Commonwealth’s Attorney earned an annual salary of $110,346. Salaries of assistant
prosecutors are commensurate with the attorney’s education, experience, training, and
responsibility, and are based on the Council's established guidelines, which are comparable to
the salary guidelines of similar positions maintained by the Kentucky Personnel Cabinet pursuant
to KRS 64.640.°° In Jefferson County, for example, in 2010 the salary of some Assistant
Commonwealth's Attorneys who prosecute death penalty cases ranged from $56,832 to
$73,416.
54 Ky. Const. §§ 96 (mandating a salary for the Attomey General), 98 (mandating salaries for Commonwealth's
attommeys out of the State Treasury); Ky. Rev. STAT. ANN. §§ 15.750(2)-(3) (West 2011). 15.170 (“actual and
necessary expenses” incurred by the Attormey General and Assistant Attomeys General), 15.755(1)-(2)
(compensation for Commonwealth's Attomeys and their staff out of State Treasury), 15.760(2), (4), 15.765(2),
15.770(1)-(2), (5) (West 2011) (compensation for county attorneys and their staff paid out of the State Treasury).
Such funding is included in the appropriations and enacted amounts listed in Kentucky budget documents created by
the Kentucky Office of Personnel Management. Telephone Interview by Paula Shapiro with Christina Gordley,
Policy and Budget Analyst, Ky. Governor's Office of Policy and Management, July 6, 2011 (on file with author).
See also DPA Budget Request, supra note 11, at 11 (noting that 90% of Kentucky prosecutor’ s costs are personnel).
58 Ky. Const. § 98; Ky. Rev. STAT. ANN. § 15.750(1) (West 2011). A county's fiscal court or urban-county
council covers the County A ttomey’s Office expenses incurred “in the performance of his duties as legal adviser to
the county.” Ky. Rev. STAT. ANN. § 15.750(4) (West 2011).
56 LOUISVILLE METRO Gov’T, SUMMARY OF APPROPRIATIONS— ALL FUNDS, 2011-2012 APPROVED BUDGET 2
(2011), available at http://www. louisvilleky.gov/NR/rdonlyres/5B9CA 378-9801-48CC-A D95-
B90361A C11DE/0/SummaryofA ppropriationsA llFunds.pdf. The County Council appropriated $6,987,700 for the
Jefferson County A ttomey and $1,021,500 for the Commonwealth's Attorney for fiscal year 2010-2011. Id.
57 Government Salary Database, Ky. COURIER-JOURNAL.COM, http://datacenter.courier-
journal.com/government/salaries (type Conway into last name box) (last visited Nov. 11, 2011).
58 Telephone Interview by Sarah Turberville with Willie Morrison, Research Assistant, Justice Programs Office,
American Univ., Apr. 28, 2011 (on file with author). Kentucky’s six part-time Commonwealth's A ttommeys earned
an annual salary of $66,207 in 2010. Id.
°° Ky. REV. STAT. ANN. §§ 15.760(4), 15.770(5) (West 2011).
50 Kentucky Payroll Database, LEXINGTON HERALD-LEADER.COM,
http://www kentucky.com/2008/10/10/551569/search- the-kentucky-payroll-
database. html? appSession=661837411371008 (last visited Nov. 11, 2011) (indicating a monthly salary of $4,736);
Kentucky Payroll Database, LEXINGTON HERALD-LEADER.COM,
http://www kentucky.com/2008/10/10/551569/search-the-kentucky-payroll-
database. html? appSession=381837417851034 (last visited Nov. 11, 2011) (indicating a monthly salary of $4,790);
Kentucky Payroll Database, LEXINGTON HERALD-LEADER.COM,
136
C. Professional and Ethical Responsibilities of Prosecutors
1. The Kentucky Rules of Professional Conduct
The Kentucky Supreme Court promulgated the Kentucky Rules of Professional Conduct (Rules),
which establish the minimum ethical responsibilities of all attorneys, including prosecutors.°
The Rules set out special responsibilities of prosecutors in criminal cases, noting that “a
prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”
Specifically, Rule 3.8 requires that a prosecutor in a criminal case shall
(a) Refrain from prosecuting a charge that the prosecutor knows is not supported
by probable cause;
(b) Make reasonable efforts to assure that the accused has been advised of the
right to, and the procedure for obtaining, counsel and has been given
reasonable opportunity to obtain counsel;
(c) Make timely disclosure to the defense of all evidence or information known
to the prosecutor that tends to negate the guilt of the accused or mitigates the
offense, and, in connection with sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor,
[unless there is] a protective order of the tribunal;
(d) Not subpoena a lawyer in a grand jury or other criminal proceeding to
present evidence about a past or present client unless . . . [“there is a genuine
need to intrude into the client-lawyer relationship” ] |; 5
(e) Refrain, except for statements that are necessary ..., from making
extrajudicial comments that have a substantial likelihood of heightening
public condemnation of the accused and exercise reasonable care to prevent
investigators, law enforcement personnel, employees or other persons under
the supervision of the prosecutor . . . from making [these] extrajudicial
statements].°”
In addition, the Rules require all attomeys, including prosecutors, to report professional
misconduct. Rule 8.3 states, “[a] lawyer who knows that another lawyer has committed a
violation of the Rules [] that raises a substantial question as to that lawyer's honesty,
http://www kentucky.com/2008/10/10/551569/search- the-kentucky-payroll-
database. html? appSession=447 183741450428 (last visited Nov. 11, 2011) (indicating a monthly salary of $6,118).
51 See generally Ky. Sup. Ct. Rule (SCR) 3.130(1.1)-(8.4) (hereinafter Ky. R. PROF’L CONDUCT 1.1-8.4).
82 Ky. R. PROF’L CONDUCT 3.8 cmt. 1 (“This responsibility carries with it specific obligations to see that the
defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”)
3 Ky. R. PROF’L CONDUCT 3.8(a).
64 Ky. R. PRoF’L CONDUCT 3.8(b).
6 Ky. R. PRor’L ConbUuCcT 3.8(c). Under this rule, a Kentucky prosecutor has an affirmative obligation to
disclose favorable evidence or information, either on the guilt issue or the punishment issue, without the necessity of
the defense to make a motion and obtain an appropriate court order. See Ky. R. PROF’L CONDUCT 3.8(c) cmt. 2.
6 Ky. R. PROF’L CONDUCT 3.8(d), cmt. 3.
67 Ky. R. PRoF’L CONDUCT 3.8(e), cmt. 4 (noting extrajudicial statements by prosecutors also are problematic as
they may contribute to increased public condemnation of the accused).
% " See Ky. R. PROF’L CONDUCT 8.3.
137
trustworthiness or fitness as a lawyer in other respects, shall inform the [Kentucky Bar]
Association’s Bar Counsel.”®’ Kentucky Supreme Court commentary emphasizes the need for
such reporting because one incident can indicate a pattern of misconduct that only a disciplinary
investigation may uncover.
The Rules prohibit Kentucky lawyers from falsifying evidence or counseling clients or witnesses
to do so, from making frivolous discovery requests, and from making personal statements about
the credibility of witnesses or the guilt or innocence of the accused.’ Further, lawyers should
make reasonable efforts to comply with discovery requests.” All lawyers are forbidden from
making “extrajudicial statements they know or should know will be publicized and will have the
substantial likelihood of materially prejudicing the case.”
2. The Kentucky Revised Statutes
The Kentucky Revised Statutes (KRS) requires any prosecutor to disqualify him/herself in any
proceeding in which s/he, his/her spouse, or immediate family member, is a party, has any
interest, or may likely be a material witness. Upon a showing of actual prejudice, any
prosecuting attorney may be disqualified in a pending proceeding and a special prosecutor
appointed in his/her place.” Any Commonwealth prosecutor indicted by a state or federal grand
jury on a felony charge is immediately disqualified from further prosecuting any criminal case or
proceeding.” Furthermore, if a Commonwealth’s or County Attomey refuses to disqualify
him/herself in the event of his/her “incapacity, refusal without sufficient grounds, inability,
conflict of interest,” or failure to act in a certain case,” the Attorney General must petition the
circuit court to disqualify the prosecutor based upon a showing of good cause that s/he should
not participate in the prosecution.” If the circuit court sustains this petition, the A ttomey
General must “file and prosecute a complaint against the local prosecutor” and a hearing may be
held to determine the amount of the prosecutor's pay reduction.
3. Investigating Prosecuting Attorneys and Disciplining Members of the Bar
69
70
Ky. R. PROF’L CONDUCT 8.3(a).
Ky. R. PRor’L ConbUCT 8.3 cmt. 1. This mle also provides qualified immunity for reporting lawyers to
encourage the reporting of misconduct and to prevent retaliation. Id. at cmt. 5.
7. Ky. R. PROF’L CONDUCT 3.3-3.4.
Ky. R. PRoF’L CONDUCT 3.4(d) (“A lawyer shall not in a pretrial procedure, make a frivolous discovery request
or deliberately fail to make reasonably diligent effort to comply with a legally proper discovery request by an
opposing party.”), 3.1.
7” Ky. R. PROF’L CONDUCT 3.6 & cmt. 1 (noting that a balance has to be struck between not prejudicing a trial and
the public’s need for information because of safety and informed policy making).
7 Ky. REV. STAT. ANN. § 15.733(2) (West 2011).
75 Ky. REV. STAT. ANN. §§ 15.733(3)-(4), 15.735, 15.730 (West 2011); supra note 36 and accompanying text. In
the event an Assistant Commonwealth’s or County Attomey is disqualified, the jurisdiction’s Commonwealth’s or
County A ttomey will suspend the offending prosecutor. Ky. REV. STAT. ANN. § 15.734(2) (West 2011).
7 Ky. REV. STAT. ANN. § 15.734(1) (West 2011). The attomey is also automatically suspended from the practice
of law in the Commonwealth. SCR 3.166(1). In addition, “[d]isciplinary proceedings against such attomey shall be
initiated by the Inquiry Commission . . . unless already begun or unless the suspended attorney resigns under terms
of disbarment.” SCR 3.166(6).
7 Ky. Rev. STAT. ANN. § 15.715(1) (West 2011).
® Ky. REV. STAT. ANN, § 15.715(2) (West 2011).
79 Ky. REV. STAT. ANN. §§ 15.715(3), 61.120 (West 2011) (salary deduction for failure to perform duties).
138
As authorized by the Kentucky Supreme Court, the KBA is the entity responsible for
investigating and prosecuting complaints about violations of the Rules by any licensed attorney
in Kentucky, including those attomeys prosecuting death penalty cases.°° Any violation or
attempted violation of the Rules constitutes misconduct."! The KBA’s Office of Bar Counsel
investigates and prosecutes charges of professional misconduct issued by the Inquiry
Commission, “an independent body appointed by the [Kentucky Supreme] Court to receive and
process complaints from any source which allege professional misconduct by lawyers.”®?
However, as the entity that licenses attorneys, only the Court can reprimand an attorney, suspend
an attorney’s license, or order permanent disbarment from the practice of law.
If an attorney is disbarred or suspended for more than sixty days s/he must notify, within ten
days of the date the discipline becomes effective, all courts in which s/he has matters pending
and all of his/her active clients, that s/he can no longer provide representation.™ Findings of
misconduct and sanctions are available publicly in the Southwest Reporter, but if no misconduct
is found, information on the discipline proceedings will not be published.”
D. Other Relevant Prosecutorial Responsibilities
1. Notice of Intent to Seek the Death Penalty
If the Commonwealth’s Attorney decides to seek the death penalty, the prosecutor is required to
provide a notice of aggravating circumstances prior to the commencement of the trial.”
Specifically, “[t]his notice requirement is satisfied by timely filing a formal notice of intent to
seek the death penalty and the aggravating circumstances upon which the Commonwealth
intends to rely.”"’ The notice must be provided to the defense with “reasonable time and
opportunity for preparation,” although the notice need not be reduced to writing."* During the
50 Ky. REV. STAT. ANN. § 21A.150 (West 2011) (authorizing the KBA “to conduct hearings, administer necessary
oaths, take testimony under oath, compel the attendance of witnesses, and compel the production of records and
other evidence” in disciplinary proceedings); see also SCR 3.130-3.530; Office of Bar Counsel Overview, KY. BAR
ASs’N, http://www.kybar.org/234 (last visited Nov. 15, 2011).
81 Ky. R. PRoF’L CONDUCT 8.3, 8.4.
82 Office of Bar Counsel Overview, Ky. BAR Ass’N, http://www.kybar.org/234 (last visited Nov. 15, 2011); SCR
3.155 (the KBA Board may appoint Bar Counsel “responsible for investigating and prosecuting all disciplinary
cases and such other duties as the Board may designate”), 3.140 (appointment of the Inquiry Commission).
83 SCR 3.380.
84 SCR 3.390.
85 SCR 3.150(5), 3.440 (final orders in disciplinary cases are published as are other opinions of the Kentucky
Supreme Court). “[N]otice of all public discipline imposed against a lawyer and reinstatements” also is transmitted
to the American Bar Association’s National Discipline Data Bank. SCR 3.150(7).
8° Ky. REV. STAT. ANN. § 532.025(1)(a) (West 2011) (requiring only that the Commonwealth give notice of any
aggravators prior to trial).
87" Soto v. Commonwealth, 139 S.W.3d 827, 843 (Ky. 2004) (citing Furnish v. Commonwealth, 95 S.W.3d 34, 41
(Ky. 2002); Commonwealth v. Maricle, 15 S.W.3d 376, 379 (Ky. 2000); cf. Smith v. Commonwealth, 845 S.W.2d
534, 536-538 (Ky. 1993)).
88 Smith, 845 S.W.2d at 537; Francis v. Commonwealth, 752 S.W.2d 309 (Ky. 1988) (notice need not be in
writing); see Epperson v. Commonwealth, 197 S.W.3d 46 (Ky. 2006) (notice need not be in writing).
139
penalty phase of a capital trial, “only such evidence in aggravation as the state has made known
to the defendant prior to his trial shall be admissible.” ®°
Inadequate notice has been determined to be grounds for the reversal of a death sentence.” In
Smith v. Commonwealth, the Kentucky Supreme Court reversed a capital conviction and
remanded for re-sentencing where the prosecution provided defense counsel with only six days
notice of its intent to seek the death penalty.” In this case, notice of aggravating factors had
been provided to the defense counsel nineteen months prior to trial, however, the
Commonwealth had represented to defense counsel on a number of occasions that it would not
seek the death penalty. In reversing the death sentence, the Court stated that a defendant is
entitled to rely on a prosecutor’ s express representations that it would not seek the death penalty,
and, as a result, defense counsel was not given adequate notice to prepare for the penalty phase
of the capital trial.°°
2. Plea Agreements
A defendant has no constitutional right to a plea agreement or plea negotiation.” Kentucky law
provides prosecuting attorneys broad discretion whether to enter into plea negotiations with a
defendant. The Kentucky Supreme Court has stated that “if the offer is made by the
prosecution and accepted by the accused, either by entering a plea or by taking action to his[/her]
detriment in reliance on the offer, then the agreement becomes binding and enforceable.”
However, the ultimate decision to accept or reject a particular plea bargain rests with the trial
& Ky. REV. STAT. ANN. § 532.025(1)(a) (West 2011).
9° Maricle, 15 S.W.3d at 379 (“a defendant cannot be made to face the sentencing phase of a capital trial unless he
or she is first given sufficient notice of the Commonwealth’s intention to seek the death penalty”); Smith, 845
S.W.2d at 536-38.
51 Smith, 845 S.W.2d 534. See also Maricle, 15 S.W.3d at 378-79 (holding that the trial court did not abuse its
discretion in its determination to exclude the death penalty where notice was given forty-six days before trial and the
Commonwealth admitted it was not sufficient time to prepare).
® Smith, 845 S.W.2d 534.
3 Smith v. Commonwealth, 845 S.W.2d 534, 536-37 (Ky. 1993) (noting that “[t]he Commonwealth's A ttomey is
under a strict obligation to see that every defendant receives a fair trial”) (internal citation omitted).
4 See Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“But there is no constitutional right to plea bargain; the
prosecutor need not do so if he prefers to go to trial.”); Mabry v. Johnson, 467 U.S. 504, 507 (1984);
Commonwealth v. Reyes, 764 S.W.2d 62, 64 (Ky. 1989). See also Wiley v. Commonwealth, 575 S.W.2d 166 (Ky.
Ct. App. 1978) (plea bargain denotes reduction of charge to lesser offense or reduction of counts of charge whereas
sentence negotiation denotes discussion regarding amount of time to be served after plea of guilty).
95 Ky. Rev. STAT. ANN. § 15.725(1) (West 2011) (Commonwealth’s attorney to prosecute all criminal violations
tried in circuit court); Hoskins v. Maricle, 150 S.W.3d 1, 11-12 (Ky. 2004) (citing Moore v. Commonwealth, 983
S.W.2d 479, 487 (Ky. 1998) (prosecutor has broad discretion as to what crime to charge and what penalty to seek);
Commonwealth v. McKinney, 594 S.W.2d 884, 888 (Ky. Ct. App. 1979) (decision whether to prosecute and what
charge to bring is within discretion of prosecutor); Reyes, 764 S.W.2d at 64 (“The prosecutor may engage in [plea
bargaining] or not at his[/her] sole discretion. If he wishes, he may go to trial.”); Wainscott v. Commonwealth, 562
S.W.2d 628 (Ky. 1978) (prosecutor can seek higher penalty at trial after defendant refuses to plead guilty and take
lesser sentence to same charge); O’Neil v. Commonwealth, 114 S.W.3d 860, 864 (Ky. Ct. App. 2003) (“[W]hen a
defendant breaches a plea agreement, the Commonwealth has the option of withdrawing its offer and proceeding
upon the charge in the original indictment, or it may re{-Jindict if those charges have already been dismissed in
connection with the plea agreement.”).
9° Smith v. Commonwealth 845 S.W.2d 534, 537 (Ky. 1993) (citing Reyes, 764 S.W.2d at 65 (where the
Commonwealth was ordered to carry out its plea agreement promising not to seek the death penalty).
140
court.’ Prior to accepting a plea agreement, the court should make an inquiry that sufficiently
ensures that the defendant entered the plea knowingly, intelligently, and voluntarily. Failure of
a trial court to follow a prosecutor’s sentencing recommendation does not render a guilty plea
involuntary, although if “the defendant was misled by the action of the trial court, refusal to
allow withdrawal of his guilty plea would amount to an abuse of discretion,” requiring reversal.*°
3. Discovery
a. Discovery Requirements
There is no constitutional right to discovery in criminal cases.'°° However, state and federal law
entitles a defendant to receive all exculpatory information or evidence— known as Brady
material— during trial.’ The prosecutor “is not required to deliver his[/her] entire file to
defense counsel,” but must “disclose evidence favorable to the accused that, if suppressed, would
deprive the defendant of a fair trial.”1°
In capital cases, this obligation requires that the Commonwealth disclose evidence that supports
mitigating circumstances at the penalty phase of the trial, and evidence that would be
exculpatory during the guilt phase, including the disclosure of impeachment evidence that could
be used to show bias or interest on the part of a witness for the Commonwealth." Accordingly,
the Commonwealth is under a duty to reveal any deal or agreement, even an informal one, where
leniency has been promised to a Commonwealth witness who has criminal charges pending
against him/her, in exchange for testimony against the defendant.“ A prosecutor also must
disclose favorable evidence known to the others acting on the government's behalf in the case,
such as the police.!°
°” See, e.g., Haight v. Williamson, 833 S.W.2d 821 (Ky. 1992) (where the judge refused to approve the plea
agreement and imposed the death penalty, which was overtumed on appeal, and the Court then held that the
Commonwealth was not bound by its original offer to recommend life without parole for twenty-five years); Bush v.
Commonwealth, 702 S.W.2d 46 (Ky. 1986) (defendant entered a valid plea to a new plea bargain after the trial judge
rejected the first bargain and the guilty plea made in reliance upon that bargain).
98 Boykin v. Alabama, 395 U.S. 238 (1969); Brady v. United States, 397 U.S. 742 (1970). Furthermore, RCr 8.08
“expressly prohibits acceptance of a guilty plea without a prior determination that it is voluntary.” Haight v.
Commonwealth, 760 S.W.2d 84, 87-88 (Ky. 1988).
%° Haight, 769 S.W.2d at 88; Couch v. Commonwealth, 528 S.W.2d 712, 713-15 (Ky. 1975).
100 See Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
101 Brady v. Maryland, 373 U.S. 83 (1963); see also Carter v. Commonwealth, 782 S.W.2d 597, 601 (Ky. 1990)
(Brady requires “the Commonwealth, upon request, to notify the defense in advance of trial of exculpatory evidence
known to the prosecution.”). See also Ky. R. PROF’L CONDUCT 3.8(c).
102 United States v. Bagley, 473 U.S. 667, 675 (1985).
103 Brady, 373 U.S. at 87 (holding that the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution); Funk v. Commonwealth, 842 S.W.2d 476, 481-82 (Ky. 1992) (holding that it
was reversible error for the prosecutor, in a capital case, to withhold a report that contradicted the Commonwealth's
pathologist testimony). See also Ky. R. PROF’L CONDUCT 3.8(c).
° See Giglio v. United States, 405 U.S. 150, 154-55 (1972).
105 Anderson v. Commonwealth, 864 S.W.2d 909 (Ky. 1993); Commonwealth v. Bussell, 226 S.W.3d 96 (Ky.
2007), as modified, (Aug. 30, 2007) (finding the Commonwealth’s failure to disclose numerous police reports
suggesting the possibility of an alternative suspect in the victim's death was a reversible Brady violation).
141
Kentucky Rule of Criminal Procedure (RCr) 7.42 requires the prosecutor, upon a written request
by the defendant, to make available certain evidence or statements, including “the substance, []
time, date, and place, of any oral incriminating statement known by the attorney for the
Commonwealth to have been made by a defendant to any witness.”!°° The Commonwealth’s
Attomey must also, upon written request, permit the defendant to inspect and copy documents
known by or in the possession of the Commonwealth,!”” including any (a) relevant written or
recorded confessions by the defendant, (b) results or reports of physical or mental examinations
and scientific tests or experiments in connection with the case, and (c) written summaries of any
expert testimony the Commonwealth intends to introduce at trial.’
Furthermore, upon the filing of a pretrial discovery motion, the court may order the
Commonwealth's Attomey “to permit the defendant to inspect and copy or photograph books,
papers, documents or tangible objects, or copies or portions thereof, that are in the possession,
custody or control of the Commonwealth,” if the defendant shows that (a) the items sought may
be material to the preparation of the defense, and (b) the request is reasonable.!°? This provision
requires the Commonwealth to permit inspection of official police reports.'!° It does not,
however, require the Commonwealth to disclose any “memoranda, or other documents made by
police officers and agents of the Commonwealth in connection with the investigation or
prosecution of the case, or of statements made to them by witnesses or by prospective
witnesses.” |"!
The Commonwealth has a reciprocal right to discovery, which is triggered if the Commonwealth,
after having complied with the defendant’s discovery request under RCr 7.24(1)(b), makes a
written request for discovery to the defense.'"” For example, if the defendant requests “reports
of physical or mental examinations and of scientific tests or experiments” from the
Commonwealth, then the Commonwealth’s Attorney has a reciprocal right to request these
documents from the defendant.’ The prosecution is limited to discovery of items that are
within the defendant's “possession, custody, or control,” and those items the defendant “intends
106 Ky. R. CRIM. P. 7.24(1); Chestnut v. Commonwealth, 250 S.W.3d 288, 296 (Ky. 2008) (“nondisclosure of a
defendant's incriminating oral statement by the Commonwealth during discovery constitutes a violation of the
discovery rules under RCr 7.24(1), since it was plainly incriminating at the time it was made”). But see Haight v.
Commonwealth, 41 S.W.3d 436, 445 (Ky. 2001) (“[D]iscovery is not authorized in a post-conviction proceeding.”),
overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009).
107 Wagner v. Commonwealth, 581 S.W.2d 352 (Ky. 1979) (the only materials discoverable under Rule 7.24 are
those within the possession, custody, and control of the Commonwealth), overruled on other grounds by Estep v.
Commonwealth, 663 S.W.2d 213 (Ky. 1983).
108 Ky. R. Crim. P. 7.24(1).
109 Ky. R. Crim. P. 7.24(2).
110 Id.
it Id.
12 Ky. R. CRIM. P. 7.24(3)(A)(i) (noting that this is “subject to objection for cause”). The Commonwealth and
defense may enter into an agreement for reciprocal discovery, which would be binding on the parties. See, e.g.,
Gray v. Commonwealth, 203 S.W.3d 679 (Ky. 2006) (non-capital) (trial court erred by not following parameters of
the Commonwealth’s and defendant's reciprocal agreement); Commonwealth v. Stambaugh, 327 S.W.3d 435 (Ky.
2010) (non-capital) (same).
“S’ Ky.R. CRIM. P. 7.24(3)(A).
142
to introduce” at the trial.'" However, in all instances, the Commonwealth must first comply
with the discovery requests of the defendant before the Commonwealth can obtain discovery
from the defendant.'!° Both parties also are under a continuing duty to disclose discoverable
material.!"°
Finally, at least forty-eight hours prior to trial, the Commonwealth’s Attorney must provide the
defense with any witness statement, in writing, that is in his/her possession “which relates to the
subject matter of the witness’s testimony and which (a) has been signed or initialed by the
witness, or (b) is or purports to be a substantially verbatim statement made by the witness.”"”
b. Challenges to Discovery Violations
RCr 7.24(9) provides for relief when either the prosecution or the defense fails to comply with
any applicable discovery rule or related court order.!"* The court has the discretion to order the
non-complying party “to permit the discovery or inspection of materials not previously
disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not
disclosed, or it may enter such other order as may be just under the circumstances.” !!°
Following the trial, a defendant may obtain relief for the prosecution's failure to disclose Brady
material at trial by showing
(1) The defendant made a proper request for production of the evidence, unless
the evidence was obviously exculpatory and helpful to the defendant, then
State is required to produce the information whether or not it is requested; 12°
(2) The evidence at issue is favorable to the accused because it is either
exculpatory or impeachment material; '*!
(3) The evidence must have been suppressed by the State, either willfully or
inadvertently; and
(4) Prejudice resulted from the failure to disclose the evidence. !”°
14 Ky. R. CRIM. P. 7.24(3)(A)-(B). However, the Kentucky Supreme Court recently noted that there is nothing in
the language of RCr 7.24 or discovery case law that the Commonwealth discovery burden is any greater than the
defense’s burden. Jones v. Commonwealth, 237 S.W.3d 153, 159 (Ky. 2007).
"5" Ky. R. CRIM. P. 7.24(3)(A)(i)- (ii).
U6 Ky, R. Crim. P. 7.24(8) (“If subsequent to compliance with an order issued pursuant to this rule, and prior to or
during trial, a party discovers additional material previously requested which is subject to discovery or inspection
under the rule, that party shall promptly notify the other party or the other party's attomey, or the court, of the
existence thereof.”).
7 Ky. R. CRIM. P. 7.26(1). A trial court privately will examine a statement, if the Commonwealth claims a
document does not relate to the subject matter of a witness's testimony, to excise the unrelated portions before
tuming the document over to the defense. Ky. R. CRIM. P. 7.26(2) (the entire statement is sealed and preserved in
court records in the event of an appeal by the defendant.).
18 Ky. R. Crim. P. 7.24(9).
119 Id.
20 See United States v. A gurs, 427 U.S. 97, 107 (1976).
21 United States v. Bagley, 473 U.S. 667, 676 (1985).
2 See Agurs, 427 U.S. at 110 (1976).
23" Bagley, 473 U.S. at 678.
143
Prejudice results and reversal of the conviction or sentence is required if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different. 24
4. Limitations on Arguments
a. Substantive Limitations
Generally, “wide latitude [is] afforded to prosecutors in making closing arguments” to the
jury.’ However, the prosecutor has a “responsibility of a minister of justice and not simply that
of an advocate.”!“° Therefore, prosecutors cannot deny a defendant a fair and impartial criminal
proceeding by appealing to ajury on improper grounds. ””
As such, there are some limitations on the permitted scope of prosecutors’ questioning and
opening and closing arguments.!° A prosecutor may not reference his/her personal opinions
during opening and closing statements, '”° discuss the jury’s lack of responsibility in making the
ultimate decision,'*° suggest that the jury has a duty to impose death," argue that the jury “send
a message” in sentencing the defendant to death,’** or make Biblical or scriptural references.“
2 Bagley, 473 U.S. 667; Gall v. Commonwealth, 607 S.W.2d 97 (Ky. 1980); Strickler v. Greene, 527 U.S. 263
(1999); Agurs, 427 U.S. at 112-13. The Kentucky Supreme Court will review de novo whether particular evidence
is material under Brady. See United States v. Corrado, 227 F.3d 528, 538 (6th Cir. 2000).
125 Winstead v. Commonwealth, 327 S.W.3d 386, 400-01 (Ky. 2010) (citing Maxie v. Commonwealth, 82 S.W.3d
860, 866 (Ky. 2002) (“When prosecutorial misconduct is claimed, the relevant inquiry on appeal should always
center around the overall faimess of the trial, not the culpability of the prosecutor. ... Additionally, prosecutors are
allowed wide latitude during closing arguments and may comment upon the evidence presented.”); Barnes v.
Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002) (citing Napier v. Commonwealth, 105 S.W.2d 595, 598 (1937))
(reversing based on the prosecutor's “acquittal is equivalent to murder” argument).
® Ky. R. PRoF’L CONDUCT 3.8 cmt. 1 (“This responsibility carries with it specific obligations to see that the
defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”).
127 Smith v. Commonwealth, 845 S.W.2d 534, 536 (Ky.1993).
128 Brown v. Commonwealth, 313 $.W.3d. 577 (Ky. 2010).
129 See United States v. Young, 470 U.S. 1, 9 (1989); Morris v. Commonwealth, 766 S.W.2d 58, 62 (Ky. 1989)
(Stephens, C.J., dissenting) (citing Young, 470 U.S. 1); Turner v. Commonwealth, 240 S.W.2d 80, 81 (Ky. 1951)
("The office of an opening statement is to outline to the jury the nature of the charge against the accused and the law
and facts counsel relies upon to support it... . It is never proper in an opening statement for counsel to argue the
case or to give his personal opinions or inferences from the facts he expects to prove.”); see also Ky. R. PROF’L
ConDUCT 3.4(e). However, the prosecutor may express his view of defendant's guilt “as long as it is based upon the
evidence in the case.” Koonce v. Commonwealth, 452 S.W.2d 822, 826 (1970).
130 Caldwell v. Mississippi, 472 U.S. 320 (1985); see also Ice v. Commonwealth, 667 S.W.2d 671, 676 (Ky. 1984)
(prosecutor's emphasis in closing argument that jury's sentence was only a recommendation was improper and s/he
cannot convey a message that jurors’ responsibility is lessened by fact that their decision is not final); Tamme v.
Commonwealth, 759 S.W.2d 51, 53 (Ky. 1988) (the word “recommend” may not be used in capital cases with
reference to jury's sentencing responsibilities in voir dire, instructions, or closing argument).
31 Young, 470 U.S. at 8-9. See also Ward v. Commonwealth, 695 $.W.2d 404, 408 (Ky. 1985).
132. Cantrell v. Commonwealth, 288 S.W.3d 291, 299 (Ky. 2009) (noting that an exception could be during the
penalty phase of a capital trial, if the argument is narrowly focused on deterrence objectives and does not attempt to
bring community pressure on the jury).
133 'See Ice, 667 S.W.2d at 676; Grooms v. Commonwealth, 756 S.W.2d 131, 145 (Ky. 1988) (Stephens, CJ.
concurring and dissenting). Moreover, “[uJsing a defendant's religious faith as a reason to execute him is a
contention which does not belong in a court of law in this Commonwealth.” Morris, 766 S.W.2d at 62 (Stephens,
CJ., dissenting) (arguing that the Commonwealth’s A ttomey should face discipline for his trial tactics).
144
Also, in capital cases, “a prosecutor may not make improper comments designed to completely
undercut the defendant's sole mitigation theory, effectively denying him fair jury
consideration.” ‘** Prosecutors are not permitted to knowingly introduce perjured testimony.!*°
The Court also has stated that “a defendant should not be criticized to the jury for not disclosing
a witness list to the Commonwealth.”
b. Challenges to Prosecutorial Arguments
Following a prosecutor's improper remarks during trial, the defense must make a timely and
proper objection requesting particular relief to the court, which the court may sustain or
overrule.'° The trial judge may offer a curative instruction to the jury or may, in the event of
particularly egregious misconduct, declare a mistrial.’
An appellate court will reverse a conviction “for prosecutorial misconduct in a closing argument
only if the misconduct is ‘flagrant’ or if each of the following three conditions is satisfied: (1)
[p]roof of defendant’s guilt is not overwhelming; (2) [d]efense counsel objected; and (3) [t]he
trial court failed to cure the error with a sufficient admonishment to the jury.”"** Kentucky uses
“a four-part test to determine if a prosecutor's improper comments rise to the level of flagrant
misconduct . . . (1) whether the remarks tended to mislead the jury or to prejudice the accused;
(2) whether they were isolated or extensive; (3) whether they were deliberatel or accidentally
placed before the jury; and (4) the strength of the evidence against the accused.”
The Kentucky Supreme Court reviews actions of lower courts by considering “the
Commonwealth's conduct in context and in light of the trial as a whole,” focusing “on the
overall fairness of the trial, and not the culpability of the prosecutor.”“° When determining
whether the cumulative effect of the Commonwealth’s conduct deprived a capital defendant of a
fair trial, the Court has noted that “a trial of this magnitude will invariably be marred with
occasional minor or surface knicks which, when cured by the trial court, cause no substantial
error.”!“! Trial judges’ admonitions of prosecutors’ improper statements to the jury, when
appropriate, at times are enough to ensure a fair trial.“
St Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006) (“When a prosecutor's actions are so egregious that they
effectively foreclose the jury’s consideration of . . . mitigating evidence, the jury is unable to make a fair,
individualized determination as required by the Eighth Amendment,” requiring reversal) (internal citation omitted).
185 Commonwealth v. Spaulding, 991 S.W.2d 651, 655-56 (Ky.1999) (quoting Giglio v. United States, 405 U.S.
150, 153 (1972)) (“When [such] perjured testimony could ‘in any reasonable likelihood have affected the judgment
of the jury,’ the knowing use by the prosecutor of perjured testimony results in a denial of due process under the
Fourteenth Amendment and a new trial is required.”). See also Ky. R. PROF’L CONDUCT 3.3.
136 Ky. R. CRIM. P. 9.22; Jenkins v. Commonwealth, 477 S.W.2d 795, 797 (Ky. 1979).
1857. Jenkins, 477 S.W.2d 795; West v. Commonwealth, 780 S.W.2d 600, 602 (Ky. 1989) (“failure to move for a
mistrial following an objection and an admonition from the court indicates that satisfactory relief was granted”).
138 Bames v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002) (citing United States v. Carroll, 26 F.3d 1380, 1390
(6th Cir. 1994)); Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996).
189 Mayo v. Commonwealth, 322 S.W.3d 41, 56 (Ky. 2010) (internal citations omitted).
“40 Alexander v. Commonwealth, 862 S.W.2d 856, 858-59 (Ky. 1993) (non-capital case) (noting that “[allleged
errors are not to be considered in a vacuum”); Slaughter v. Commonwealth, 744 S.W.2d 407, 411-12 (Ky. 1987).
141 Stanford v. Commonwealth, 734 $.W.2d 781, 791 (Ky. 1987).
12 See Alexander, 862 S.W.2d at 858-59; Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001); Combs v.
Commonwealth, 198 S.W.3d 574, 581 (Ky. 2006) (“A jury is presumed to follow an admonition to disregard
evidence; thus, the admonition cures any error.”).
145
To successfully challenge a prosecutor’ s introduction of perjured testimony, “the defendant must
show (1) the statement was actually false; (2) the statement was material; and (3) the prosecution
knew it was false.” “°
“3 Commonwealth v. Spaulding, 991 S.W.2d 651, 654 (Ky. 1999) (quoting United States v. Lochmondy, 890 F.2d
817, 822 (6th Cir. 1989)).
146
II. ANALYSIS
The Kentucky Death Penalty Assessment Team was unable to determine whether the
Commonwealth is in compliance with several of the Recommendations contained in this
Chapter. The Team has relied on publicly available data on training, budgets, and discipline of
Kentucky prosecutors, as well as Kentucky statutory and case law describing prosecutors’
charging and discovery practices. The Assessment Team also submitted a survey to the
Kentucky Prosecutors Advisory Council (Council) requesting that the survey be distributed to
Kentucky’s fifty-seven elected Commonwealth's Attorneys. The survey requested general data
regarding the death penalty in each prosecutor's jurisdiction, as well as information on training
and qualification requirements of prosecutors who handle capital cases, funding and budget
limitations, and capital charging and discovery practices.'“* The Council declined to provide
information, stating that the Council had voted “1. to address the ABA study as the
representative body of the Commonwealth’s prosecutors; 2. not to circulate the study to the
Commonwealth’s prosecutors; and 3. not to provide responses to the survey questions.”'*° The
Kentucky Assessment Team addressed all further inquiries to the Council and subsequent efforts
to obtain information were unsuccessful. '“°
A. Recommendation #1
Each prosecutor’s office should have written policies governing the exercise of
prosecutorial discretion to ensure the fair, efficient, and effective enforcement of
criminal law.
Kentucky law does not require Commonwealth prosecutors to maintain written policies
governing the exercise of prosecutorial discretion in capital cases. The Assessment Team was
also unable to determine whether any entity within Kentucky’s Unified Prosecutorial System
maintains written policies governing any aspect of its practice.
Kentucky Rules Governing Prosecutorial Discretion
As previously described in the Factual Discussion, Rule 3.8 of the Kentucky Rules of
Professional Conduct (Rules) requires prosecutors to “refrain from prosecuting a charge that the
prosecutor knows is not supported by probable cause.”!*” The Rules do not include any specific
directives related to capital cases.
Kentucky Commonwealth’s A ttorneys Charging Practices
M4" See Kentucky Questionnaire on Kentucky’s Prosecutorial Services, infra Appendix.
45" Letter to Sarah Turberville from Janet M. Graham, Assistant Deputy Attorney General, Exec. Dir. Office of
Prosecutors A dvisory Council, July 15, 2010 (on file with author). For the extent of the correspondence between the
Kentucky Team via Sarah Turberville, Director of the Death Penalty Moratorium Implementation Project, and Janet
Graham, Assistant Deputy Attomey General for Kentucky, see the Appendix Materials to this Report [hereinafter
collectively referred to as Ky. Prosecutor Correspondence].
446 See Ky. Prosecutor Correspondence, infra A ppendix.
47 Ky. R. PROF’L CONDUCT R. 3.8(a), 2009 cmt. 1 (describing the prosecutor as “a minister of justice”). Attorneys
also may not knowingly “offer evidence that the lawyer knows to be false.” Ky. R. PROF’L CONDUCT 3.3(3).
M8" See Ky. R. PROF’L CONDUCT 1.1-8.4.
147
With respect to capital cases, Kentucky confers broad discretion to Commonwealth’s A ttomeys
in the fifty-seven circuit court districts across Kentucky for determining whether to seek the
death penalty, to negotiate, accept, or reject a potential plea agreement, and whether to prosecute
any given case.'“? Kentucky prosecutors are permitted to seek the death penalty in any case in
which the evidence supports a finding of any one of eight aggravators listed in the capital
punishment statute.’°° In order to seek the death penalty, Kentucky prosecutors must provide the
defense notice of evidence in aggravation within a “sufficient” time prior to trial or risk being
unable to proceed capitally.'*' Although a sufficient time has not been precisely defined,
Kentucky trial courts have found that notice given forty-six days prior to trial is insufficient and
have precluded the Commonwealth from seeking the death penalty under such circumstances. '®*
Notice of intent to seek the death penalty, or notice of aggravators, need not be in writing.'°*
It appears some Commonwealth's A ttomeys in Kentucky seek the death penalty in any murder
case where evidence of an aggravating circumstance may be found.’ The effect of such a
practice may be best illustrated by the 2010 U.S. Department of Justice Bureau of Justice
Statistics (BJS) Report which found that Kentucky public defender agencies undertake
representation in the greatest number of capital-eligible felony cases out of eleven statewide
public defender programs in capital jurisdictions that were examined in its study. According
to the BJS Report, in 2007, Kentucky’s public defender agencies undertook representation in
ninety-seven death penalty cases.'°° However, few of these cases result in the imposition of a
death sentence. For example, in the over thirty years since Kentucky reinstated the death
penalty, Kentucky courts have sentenced seventy-eight defendants to death, and only three death
149 See Moore v. Commonwealth, 983 S.W.2d 479, 487 (Ky. 1998).
‘50 The statute also permits consideration of any non-statutory aggravators “otherwise prohibited by law.” Ky.
REV. STAT. ANN. § 532.025(2)(a) (West 2011); Harris v. Commonwealth, 793 S.W.2d 802, 808-09 (Ky. 1990)
("Certainly, KRS 532.025(2) allows aggravating circumstances other than those specifically enumerated in that
section to be taken into consideration by the jury in its deliberations, but in addition, by using the conjunctive ‘and,’
the statute requires at least one of the enumerated statutory circumstances to be found before the death penalty or life
without parole for twenty-five (25) years can be imposed.”). See also Jacobs v. Commonwealth, 58 S.W.3d 435,
449-50 (Ky. 2001) (remanding a capital conviction for a new non-death sentencing phase because kidnapping is not
an aggravator authorized by law but rather a separate capital offense).
151 Smith v. Commonwealth, 845 S.W.2d 534 (Ky. 1993); Perdue v. Commonwealth, 916 S.W.2d 148 (Ky. 1995),
as corrected on denial of reh’g, (Mar. 21, 1996) (defense was put on notice at all stages of proceedings that
Commonwealth would seek death penalty); White v. Commonwealth, 178 S.W.3d 470 (Ky. 2005) (sufficient
notice); Emst v. Commonwealth, 160 S.W.3d 744 (Ky. 2005) (sufficient notice even though notice did not specify
aggravating circumstance).
152" Commonwealth v. Maricle, 15 S.W.3d 376, 379 (Ky. 2000) (“We cannot say that the trial court abused its
discretion in finding that forty-six days was insufficient notice under Smith.”). C.f. Smith, 845 S.W.2d 534 (verbal
notice three weeks prior to trial and formal notice filed six days prior is insufficient).
153 Epperson v. Commonwealth, 197 S.W.3d 46 (Ky. 2006) (notice need not be in writing).
154 Gerald Neal, Not Soft on Crime, But Strong on Justice: The Kentucky Racial Justice Act: a Symbol, a Statement
of Legal Principle, and a Commitment to Systemic Fundamental Fairness, 26 ADVOCATE 9, Mar. 2004, at 16-20;
Gennaro F. Vito, The Racial Justice Act in Kentucky, 37 N. Ky. L. Rev. 273, 279-80 (2010).
155 BUREAU OF JUSTICE STATISTICS, CENSUS OF PUBLIC DEFENDER OFFICES, 2007, SPECIAL REPORT: STATE PUBLIC
DEFENDER PROGRAMS, 2007 11 (Sept. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/spdp07.pdf
(including caseload data from all of Kentucky’s public defender agencies in 2007) [hereinafter BJS REPORT].
‘58 BJS REPORT, supra note 235, at 11. The BJS reported that the state with the second highest number of capital
cases at trial was Maryland, where the public defender undertook representation in thirty capital trials. Id.
148
row inmates have been executed.'*’ Kentucky prosecutors have filed notice of intent to seek the
death penalty in cases which ultimately resulted in acquittal or convictions for lesser crimes,
such as manslaughter or robbery.’ The large number of instances in which the death penalty is
sought, as compared to the number of instances in which a death sentence is actually imposed,
raises an issue as to whether current charging practices ensure the fair, efficient, and effective
enforcement of criminal law.
Geographic Disparity in Capital Charging Practices
157 See Kentucky Death Sentences Imposed, Reversed and Commuted, 1976-2011, infra Appendix. In total, there
have been seventy-eight capital defendants sentenced to death in Kentucky since 1976. The total number of death
sentences imposed is greater than seventy-eight as, in some cases, a defendant was sentenced to death for more than
one murder, a defendant was given more than one death sentence for a single murder, or a defendant's initial death
sentence was reversed on appeal and a subsequent rehearing resulted in the defendant again being sentenced to
death. For example, death row inmate Michael D. St. Clair has been sentenced to death four times, three of which
were eventually reversed, and another capital murder trial is scheduled in Hardin County. See, e.g., St. Clair v.
Commonwealth, 140 S.W.3d 510 (Ky. 2004); St. Clair v. Commonwealth, 174 S.W.3d 474 (Ky. 2005); St. Clair v.
Commonwealth, 319 S.W.3d 300 (Ky. 2010); Brett Barrouquere, Oklahoman prison escapee resentenced to death,
ASSOCIATED PRESS, Nov. 16, 2011, Ky. 15:56:15. Current death row inmates Roger Dale Epperson and Benny Lee
Hodge have also been sentenced to death in three separate trials. See, e.g., Epperson v. Commonwealth, 809 S.W.2d
835 (Ky. 1990) (direct appeal for both Hodge and Epperson); see 17 SW3d 824, 834 (Ky. 2000), citing 766 S.W.2d
58,61 (Ky. 1989) (1987 conviction reversed); Epperson, 197 S.W.3d 46; Hodge v. Commonwealth, 17 S.W.3d 824
(Ky. 2000). For additional statistical data on Kentucky's death row, please see Chapter One.
156" Examples of cases that went to trial with death as a possible sentence but resulted in acquittal, reckless
homicide, or manslaughter verdicts include (1) Commonwealth v. Joshua Cottrell, No. 03-CR-00465 (Hardin Cir.
Ct. Mar. 1, 2005) (capital defendant received second degree manslaughter and sentenced to twenty years with
Persistent Felony Offender (PFO), eligible for parole 2.5 years after sentencing); (2) Commonwealth v. Larry
Osborne, No. 98-CR-000006-001 (Whitley Cir. Ct. Feb. 28, 2002) (death row inmate acquitted on retrial); (3)
Commonwealth v. C.H. Brown, No. 87-CR-00506-001 (Fayette Cir. Ct. June 28, 1988) (capital defendant acquitted
on murder charges and found guilty of first degree robbery; on retrial, pled guilty to theft by unlawful taking and
received maximum sentence of three years); (4) Commonwealth v. Mark Dixon, No. 95-CR-00577 (Fayette Cir. Ct.
1996) (charged with capital murder, first degree robbery, and three counts of wanton endangerment, acquitted on all
charges); (5) Commonwealth v. Carlos Cortez, No. 99-CR-00369-002 (Fayette Cir. Ct. Mar. 18, 2002) (charged
with capital murder, first degree robbery, and first degree burglary; acquitted on all charges); (6) Commonwealth v.
Earl Cheeks, No. 90-CR-00049-002 (Fayette Cir. Ct. Dec. 21, 1990) (charged with capital murder, first degree
robbery and PFO; convicted of second degree manslaughter (twenty years for PFO) acquitted of robbery); (7)
Commonwealth v. Myron Wilkerson, No. 98-CR-00631-002 (Jefferson Cir. Ct. 1998) (charged with capital murder,
first degree burglary and first degree robbery; found guilty of second-degree manslaughter (ten year sentence) and
robbery (twenty years), not guilty burglary); (8) Commonwealth v. Nashawn Stoner, No. 98-CR-2446 (Jefferson
Cir. Ct. 1998) (charged with capital murder and first degree robbery, acquitted on all charges); (9) Commonwealth
v. Donnez Porter, No. 97-CR-1951 (Jefferson Cir. Ct. 1998) (charged with two counts of capital murder, first degree
robbery and first degree assault; acquitted on all charges). See Email to Sarah Turberville from Ed Monahan, Public
Advocate, Ky. Dep’t of Pub. Advocacy (DPA), June 20, 2010 (on file with author). In response to prosecutors’
filing of a notice of aggravators, the public defenders also have filed pretrial motions to request the court to find as a
matter of law that there are no aggravating factors present as described in KRS 532.025 to support sending the case
to the jury on the issue of imposing the death penalty. See, e.g., Order, Commonwealth v. Levering, No. 10-CR-
00031 (Lawrence Cir. Ct. Apr. 1, 2011) (granting defense motion to preclude using the two aggravators filed by the
prosecutor due to lack of evidence supporting the aggravating circumstances); DPA Interview, supra.
149
There exists some geographic disparity in Kentucky with respect to capital charging practices
and conviction rates.'°* In 2006, a Louisville Courier-Journal article compared conviction and
sentencing data of murder cases in Fayette and Jefferson Counties, noting that in Fayette,
seventy-one percent of murder defendants have been sentenced to more than ten years in prison,
compared with thirty-two percent of murder defendants in Jefferson County.’ Furthermore,
fifty-three percent of Fayette County murder cases since 2003 have gone to trial, while only
twenty-five percent in Jefferson County have gone to trial.’ The article notes that “Jefferson
County prosecutors say they are at a disadvantage, trying murder cases in an urban area with
more gangs and drugs, and more liberal juries that are less likely to convict,” while in Fayette
County “prosecutors say they have less discretion to plea bargain; that taking murders to trial is
not only encouraged but expected; and that the results are tracked on the [C]ommonwealth[’ s]
[A ]ttomey’s Web site,” 62 Similarly, in Appalachia, where murders are more frequent than
“they are anywhere else in Kentucky ... ,” cases selected for capital murder charges “may vary
so widely both in their legal and extra-legal characteristics that no distinctive [charging] patterns
may be found.” 1
Furthermore, in 2006, Kentucky professors Thomas Keil and Gennaro Vito, who had previously
conducted a number of studies on the effect of race on Kentucky’s death penalty
administration, !* released a study that examined whether the race of the defendant or race of the
victim affected a prosecutor's decision to seek the death penalty.’ Keil and Vito concluded that
based on the 575 cases of persons charged, indicted, convicted, and sentenced for murder in
Kentucky between December 22, 1976 and December 31, 1991,' a “statistically significant”
difference emerged where “Blacks who kill Whites have the largest probability of being charged
with a capital offense (46.7%), followed by Whites who kill Whites (28.6%). Blacks who Kill
Blacks (16.0%) and Whites who kill Blacks (16.7%) had a close to equal chance of being tried on
capital charges.”'°” Based on their research, Keil and Vito concluded that “capriciousness is a
significant aspect of the decision to charge persons with a capital crime in Kentucky,” and that
“the decision as to who will be charged with a capital crime is far more random among white
defendants than it is among black defendants.” °°
159 Thomas Keil & Gennaro Vito, Capriciousness or Fairness? Race and Prosecutorial Decisions to Seek the
Death Penalty in Kentucky, 4(3) J. ETHNICITY CRIM. JusT. 27, 41 (2006) (one of the reasons why capriciousness is
strong where victims are white is “[t]here might be a strong geographic/political cultural explanation”).
160 Jason Riley, Fayette much more likely to ‘go full tilt’ on murder trials, CouRIER-J. (Louisville, Ky.), Sept. 30,
2006, _http://www.courier-joumal.com/article/20070125/NEW S01/101250207/Fayette-much-more-likely-go-full-
tilt-murder-trials (last visited Nov. 15, 2011).
161 Td. (quoting Fayette County Commonwealth's A ttomey as stating “Our rule is murder cases go to trial.”).
162 Td. (noting that the Fayette Commonwealth's A ttomey must sign off on a plea bargain before approval while in
Jefferson County, the Commonwealth’s A ttomey only approves plea bargains in capital murder cases).
163 Keil & Vito, supra note 159, at 41-42.
16 See Chapter Twelve on Racial and Ethnic Minorities, supra note 12 and accompanying text.
165 Keil & Vito, supra note 159, at 32.
166 Keil & Vito, supra note 159, at 32-33 (noting that this number does not include cases missing data, where the
original pool of cases was 949). The study controlled for other variables including whether the offense involved (1)
multiple murders, (2) the defendant having a history of violent offenses, (3) more than one aggravator, (4) a
“heinous” crime, (5) killing a stranger, and/or (6) a female victim. Id. at 33-34.
167 Td. at 35-36 (the data “showls] that race of the victim matters in the decision as to whether an alleged murderer
will be charged with a capital crime by Kentucky prosecutors and that it matters even more if the killer happens to
be Black”).
"Id. at 39-40.
150
A number of death row inmates have challenged their death sentences by arguing that
“Kentucky’s capital sentencing scheme is inherently arbitrary due to the alleged unlimited
discretion enjoyed by prosecutors in determining whether to seek the death penalty in a given
case.” The Kentucky Supreme Court has rejected this argument, stating that “we disagree and
respond that ‘the death penalty is not imposed arbitrarily or capriciously in Kentucky.’”!”
According to the Court, “as the Commonwealth's representative, the Commonwealth's Attorney,
not the judiciary, is properly vested with the discretion of determining whether to plea bargain,
go to trial, or even dismiss the indictment aii
Furthermore, a Kentucky circuit court has recently considered the constitutionality of Kentucky’s
prosecutorial discretion in determining whether to seek the death penalty.'”” In Commonwealth
v. Parker, the defendant claimed discretion in Commonwealth prosecutorial charging practices
created an arbitrary and capricious process where a “person who commits a crime in one county
may face death while a person who commits the same crime in another county may not face
death.”!”? As of October 1, 2011, the Kenton Circuit Court had denied a defense motion to hold
a pretrial hearing on the issue and denied the motion to exclude the death penalty.’
Based on this information, it does not appear that all Kentucky prosecutors exercise discretion in
a way that ensures the fair, efficient, and effective enforcement of criminal law. However,
because we are unable to obtain information as to whether any of the fifty-seven
Commonwealth's Attomeys offices have adopted written policies addressing prosecutorial
discretion in death penalty cases, we have insufficient information to determine if Kentucky is in
compliance with Recommendation #1.!”°
The Kentucky Death Penalty Assessment Team is concerned about current charging practices
throughout the Commonwealth. Capital prosecutions occur in far more cases than result in death
sentences, which places a significant burden on Commonwealth courts, prosecutors, and defense
counsel to treat many cases as capital that will never result in a death sentence, taxing the
Commonwealth's limited judicial and financial resources. While the vast majority of
Commonwealth's Attorneys may seek to exercise discretion in death penalty cases to support the
fair, efficient, and effective enforcement of law, adoption of written policies will help guide
169 Meece v. Commonwealth, 348 S.W.3d 627, 727 (Ky. 2011), reh’g denied (Oct. 27, 2011); Hunt v.
Commonwealth, 304 S.W.3d 15, 55 (Ky. 2009).
1 Meece, 348 S.W.3d at 727 (citing Fields, 274 S.W.3d at 419; Tamme, 973 S.W.2d at 40-41); see also Hunt, 304
S.W.3d at 55.
“Hoskins v. Maricle, 150 S.W.3d 1, 39 (Ky. 2004) (citing Flynt v. Commonwealth, 105 $.W.3d 415, 424-25
(Ky. 2003) (describing the duties of Commonwealth’s Attorneys) (“In defining the duties of Commonwealth's
attorneys, the General Assembly clearly contemplated that they would perform executive prosecutorial functions
both before and after indictment... .”).
1‘ Kenton County case to be used as Ky. death penalty test, CINCINNATI ENQUIRER, July 2, 2010 (on file with
author). Commonwealth v. Parker also is the case cited by the Prosecutors’ Advisory Council as its basis for voting
not to respond to the survey submitted to Commonwealth prosecutors by the Kentucky Assessment Team. See Ky.
Prosecutor’ s Correspondence, infra Appendix.
Id.
‘4 Telephone Interview by Paula Shapiro with Joanne Lynch, Assistant Public Advocate, Ky. Dep't of Pub.
Advocacy, Sept. 13, 2011 (on file with author).
175 As previously discussed, the Prosecutor’s Advisory Council declined to respond to our request for information
relative to the analysis of this and other Recommendations. See Ky. Prosecutor’ s Correspondence, infra Appendix.
151
prosecutors in their charging decisions to support the even-handed, non-discriminatory
application of the death penalty across the Commonwealth.
The Assessment Team, therefore, recommends that Kentucky adopt guidelines governing the
exercise of prosecutorial discretion in death penalty cases.‘ The Attomey General should
promulgate the guidelines, in consultation with experts on capital punishment— including
prosecutors, defense attomeys, and judges— in order to ensure that each decision to seek the
death penalty occurs within a framework of consistent and even-handed application of
Kentucky’s capital sentencing laws. Each Commonwealth’s Attomey’s office must adopt
policies for implementation of the guidelines, subject to approval by the Attorney General. If an
office fails to maintain such a policy, the Attorney General shall set the policy. This will further
ensure that “[aJrbitrary or impermissible factors—such as a defendant's race, ethnicity, or
religion— will not inform any stage of the decision-making process.”1””
Finally, the Assessment Team notes its difficulty in obtaining data on all death-eligible cases in
the Commonwealth or cases in which prosecutors unsuccessfully sought the death penalty.
Therefore, as suggested in other parts of this Report, the Assessment Team recommends that the
Commonwealth establish a statewide database for collecting data on these cases. These data
ought to include, at minimum, details on the race of the defendants and the victims, the
circumstances of the crime, the nature and strength of the evidence, and for those cases where the
death penalty is sought, the aggravating and mitigating circumstances presented and established
at trial. The creation of such a database would provide policymakers better information as they
continue to assess Kentucky’s capital punishment system—specifically, the system's
effectiveness and faimess. Such data would also provide insight into the charging practices of
Commonwealth's A ttomeys throughout Kentucky.
B. Recommendation #2
Each prosecutor's office should establish procedures and policies for evaluating
cases that rely upon eyewitness identification, confessions, or the testimony of
jailhouse snitches, informants, and other witnesses who receive a benefit.
It has been established that among the many factors that lead to wrongful convictions
nationwide, eyewitness misidentification and confessions are the most problematic.”
According to the Innocence Project, eyewitness identification has played “a role in more than
75% of convictions overtumed through DNA testing.”'” In other cases, “statements from
16 Other jurisdictions may provide useful examples as to what kind of information should be contained in written
guidelines governing the exercise of discretion in capital cases. See, e.g., U.S. ATTORNEYS CRIMINAL RESOURCE
MANUAL, US. ATTORNEYS OFFICE 9-10.030 (June 2007), available at
http://www justice.gov/usao/eousa/foia_reading_room/usam/title9/10mcrm.htm#9-10.030 (Purposes of the Capital
Case Review Process); OFFICE OF THE ILL. ATT’Y GEN. & ILL. STATE’S ATTORNEYS ASS’N, DEATH PENALTY
DECISION GUIDELINES 2 (2006); NEW JERSEY COUNTY PROSECUTOR ASS'N, PROSECUTORS’ GUIDELINES FOR
DESIGNATION OF HOMICIDE CASES FOR CAPITAL PROSECUTION (1989).
177 U.S. ATTORNEYS CRIMINAL RESOURCE MANUAL, supra note 176.
18 See Samuel R. Gross, et al., Exonerations in the United States, 1989 Through 2003, 95 J. Crim. L. &
CRIMINOLOGY 523, 529-530, 544 (2005).
9 Understanding the Causes: Eyewitness Misidentification, INNOCENCE PROJECT,
http://www .innocenceproject.org/understand/Eyewitness- Misidentification.php (last visited Nov. 15, 2011).
152
people with incentives to testify— particularly incentives that are not disclosed to the jury— are
the central evidence in convicting an innocent person.” 180 Furthermore, social science research
has shown that false confessions may occur as a result of a number of variables, including
common police questioning techniques, and the suspect’s background, IQ, and state of mind at
the time of questioning.“
The Commonwealth of Kentucky, however, does not require prosecutors’ offices to establish
procedures and policies for evaluating cases that rely upon eyewitness identification,
confessions, or testimony of jailhouse snitches, informants and other witnesses who receive a
benefit. We were also unsuccessful in obtaining information on whether any prosecuting entity
within the Commonwealth maintains policies and procedures for evaluating cases like those
described in this Recommendation.
Kentucky Statutory and Case Law on Identifications, Confessions, and Informant Testimony
However, Kentucky law does require consideration of certain factors to determine the
admissibility, reliability, and sufficiency of evidence in criminal cases.'** The Kentucky
Supreme Court has held that trial courts have discretion to admit expert testimony regarding the
reliability of eyewitness identifications.'** Brady v. Maryland and its progeny also require
prosecutors to fully disclose to the accused all exculpatory, mitigating, and impeachment
evidence favorable to the defense.‘ For more information on discovery obligations, see
Recommendations #8 and 5, below.
Use of Eyewitness Identifications, Confessions, and Informants in Kentucky Capital Cases
180 Understanding the Causes: Informants, INNOCENCE PROJECT,
http://www.innocenceproject.org/understand/Snitches-Informants.php (last visited Nov. 15, 2011) (stating that “[i]n
more than 15% of wrongful conviction cases overtumed through DNA testing, an informant testified against the
defendant at the original trial.”).
‘8! Understanding the Causes: False Confessions, INNOCENCE PROJECT,
http://www.innocenceproject.org/understand/False-Confessions.php (last visited Nov. 15, 2011) (stating that “[i]n
about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright
confessions or pled guilty”).
182 Riley v. Commonwealth, 620 S.W.2d 316, 318 (Ky. 1981) (adopting Neil v. Biggers, 409 U.S. 188 (1972). For
example, the Kentucky Supreme Court requires the consideration of five factors to determine, under a totality of the
circumstances, whether an eyewitness identification is reliable, including: (1) the opportunity of the witness to view
the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of his or her prior
description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the
time between the crime and the confrontation. Id. See also Chapter Three on Law Enforcement Identification and
Interrogations.
183 Ky, R. EVIDENCE 702 (expert testimony); Commonwealth v. Christie, 98 S.W.3d 485, 488 (Ky. 2002). See
Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997) (creating the rule for when expert opinion evidence is
admissible). Further, Kentucky law mandates that a “confession of a defendant, unless made in open court, will not
warrant a conviction unless accompanied by other proof that such an offense was committed.” Ky. R. Crim. P. 9.60.
The Kentucky Supreme Court has interpreted this rule to require corroboration that the offense has been committed,
and does not require independent evidence of the defendant's participation in the crime. Lofthouse v.
Commonwealth, 13 S.W.3d 236 (Ky. 2000).
184 See Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley, 514 US 419 (1995); Giglio v. United States, 405
US 150 (1972); United States v. Bagley, 473 U.S. 667 (1985); Commonwealth v. Bussell, 226 S.W.3d 96, 99-100
(Ky. 2007); Wilson v. Parker, 515 F.3d 682, 701 (6th Cir. 2008).
153
Despite the existence of some evidentiary standards that must be met where a criminal
prosecution relies upon an eyewitness identification or a confession, a review of cases in which
the death penalty was sought or imposed in Kentucky reveal that some capital prosecutions have
rested on the sort of unreliable evidence described in this Recommendation. For example, in the
case of one current death row inmate, the Kentucky Supreme Court stated that “the only
evidence against [the defendant] was the testimony of one person’— the inmate's son. 185 In
another capital case in which the defendant received five life sentences without the possibility of
parole, “[n]o physical evidence was presented linking [the defendant] to the murders.
Prosecutors’ main witnesses were jailhouse snitches who testified about contradictory statements
[the capital defendant] had made about the fire or the scene.” *°
In another case, Larry Osborne, once the youngest man on Kentucky’s death row, was acquitted
at retrial after having spent three years on death row for the 1997 murder of an elderly couple in
Whitley County, Kentucky.'*’ A friend of Osbome “fail{ed]” a polygraph test, implicated
Osbome in the murder, and testified before a grand jury that he had seen Osbome break into the
couple’s home and later come out with a pocketful of cash.!®* However, this witness died
several months prior to Osborne’s capital trial, and the conviction and sentence were later
reversed based on inadmissible hearsay evidence.'® During the direct appeal, the Kentucky
Supreme Court dismissed the inmate’s assertion that without the inadmissible “grand jury
testimony, there was insufficient competent evidence to convict [the inmate] of these crimes” as
not within the Court’s province to determine.'“’ However, the second jury to hear his case
acquitted Osbome of all charges, and he was freed immediately. !*!
In another capital case, a conviction rested on eyewitness and jailhouse snitch testimony. The
Kentucky Supreme Court found the evidence, taken as a whole, to be sufficient to support the
conviction, !° describing the evidence to include (1) “[w]itnesses [who] saw appellant near the
time of the incident on the railroad tracks,” (2) the capital defendant's initial statements, later
retracted, placing blame on an alternative suspect, and (3) a jailhouse informant who “testified to
appellant’s candid admission while in jail of shooting and beating” the victim.'®? During post-
‘5 Garland v. Commonwealth, Nos. 2009-SC-000035-MR, 2009-SC-000361-MR, 2011 WL 2438371, at *2, 5
(Ky. May 19, 2011); Garland v. Commonwealth, 127 S.W.3d 529, 535 (Ky. 2003) (describing the inmate’s son as
“the star witness against his father” and noting that “[n]o physical evidence linked A ppellant to the crime scene”).
18° Dori Hjalmarson, Jury recommends life without parole for man charged with Leslie County murders,
LEXINGTON HERALD-LEADER, Apr. 9, 2011 http://www.kentucky.com/2011/04/08/1701700/jury-recommends-life-
without-parole.html#ixzz1X1d9CCia (last visited Nov. 15, 2011) (prosecutors noted that “if more evidence is
discovered, Jackson or another conspirator could be prosecuted in the deaths of” the parents as well).
187 Commonwealth v. Osbome, 43 S.W.3d 234, 239-41 (Ky. 2001); Innocence Cases: 1994—2003, DEATH
PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/innocence-cases- 1994-2003 (last visited Nov. 15, 2011).
188 Osborne, 43 S.W.3d at 237.
189 Osborne, 43 S.W.3d at 238.
190 Osborne, 43 S.W.3d at 245.
191 A ssociated Press, Youngest man on death row in Kentucky freed after acquittal in retrial, Aug. 2, 2002, DEATH
PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/node/1886 (last visited Nov. 15, 2011) (“not having access to
[the dead friend’s] testimony in the retrial left prosecutors ‘not a whole lot to work with’”).
1% Although the Court noted “despite the absence of direct evidence,” the Court found that “the jury could
reasonably find appellant guilty from the totality of the evidence.” Marlowe v. Commonwealth, 709 S.W.2d 424,
428 (Ky. 1986).
193 Td. See also Commonwealth v. Marlowe, No. 2004-SC-0459-MR, 2005-SC-984-MR, 2006 WL 3386629, at *3
(Ky. 2006) (upholding post-conviction court’s grant of new sentencing hearing) (“In this case, a jail house
154
conviction proceedings, it was determined that, unbeknownst to the defendant at the time of trial,
the informant’s “bond on pending robbery charges was reduced from a cash bond to release on
his own recognizance shortly after [the informant] disclosed [the former inmate's] alleged
inculpatory statements.” '*
Because we were unable to determine whether all Commonwealth prosecutors maintain policies
for evaluating cases described within this Recommendation, we are unable to ascertain whether
the Commonwealth of Kentucky is in compliance with Recommendation #2. However, given
the documented instances in which Kentucky death penalty cases have significantly relied on
eyewitness identifications, confessions, or informant testimony— evidence now known to be
leading causes of wrongful conviction nationwide—the Kentucky Death Penalty Assessment
Team recommends that the Commonwealth require Kentucky prosecutors to adopt policies or
procedures for evaluating the reliability of such evidence that will be considered prior to making
a decision to seek the death penalty. Furthermore, as discussed in Chapter Three on Law
Enforcement Identifications and Interrogations, the Assessment Team recommends that the
Kentucky Rules of Court be amended to provide a jury instruction, whenever identity is a central
issue at trial, on the factors to be considered in gauging eyewitness identification.
C. Recommendation #3
Prosecutors should fully and timely comply with all legal, professional, and ethical
obligations to disclose to the defense information, documents, and tangible objects
and should permit reasonable inspection, copying, testing, and photographing of
such disclosed documents and tangible objects.
State and federal law requires prosecutors to disclose evidence that is favorable to the defendant
when such evidence is material to either the defendant’s guilt or punishment. This includes all
exculpatory, mitigating, and impeachment evidence as well as “favorable evidence known to
others acting on the government's behalf in the case.”'*° The Kentucky Rules of Professional
Conduct also impose on prosecutors an ethical obligation to “make timely disclosure to the
defense of all evidence or information known to the prosecutor that tends to negate the guilt of
informant, Tony Mallory, testified at Appellant's trial that A ppellant had confessed to murdering seventy-eight year
old Henry Hamlin with his own gun. This testimony was crucial, Appellant argues, since this is the only evidence
which inculpated Appellant for the actual shooting of the victim. Appellant's own statements indicate that he was
present during the crime but did not actually shoot or rob the victim. Moreover, other evidence merely links
Appellant to the crime scene but not necessarily to the shooting itself.”).
19%" Marlowe, 2006 WL 3386629, at *3 (noting that this was a Brady violation but not reversible error because the
snitch’s testimony was already sufficiently impeached). The inmate's death sentence was reversed during post-
conviction proceedings. Marlowe, 2006 WL 3386629, at *1 (upholding post-conviction court's remand for a new
sentencing hearing due to ineffective assistance of counsel at the original trial). See also West v. Commonwealth,
780 S.W.2d 600, 603 (Ky. 1989) (Stephens, C. J. dissenting) (“In view of the purely circumstantial nature of the
Commonwealth's case, and the relative weakness of the evidence, I have concluded that the conduct of the
prosecutor in this case was of such a nature as to merit a reversal of the conviction.”)
5 Commonwealth v. Bussell, 226 $.W.3d 96, 99-100 (Ky. 2007); Wilson v. Parker, 515 F.3d 682, 701 (6th Cir.
2008). See also Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley, 514 U.S. 419 (1995); Giglio v. United
States, 405 U.S. 150 (1972); United States v. Bagley, 473 U.S. 667 (1985).
155
the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense
and to the tribunal all unprivileged mitigating information known to the prosecutor... .”!°°
Furthermore, when disclosing evidence, the Kentucky Rules of Criminal Procedure require
prosecutors to permit defendants to “inspect and copy or photograph” discoverable evidence that
is within the Commonwealth's “possession, custody, or control.”!9’ Such evidence that is
subject to this requirement includes, but is not limited to, the defendant’s relevant written and
recorded statements, documents or other tangible objects that were obtained from or belong to
the defendant and are material to preparing the defense or evidence the Commonwealth intends
to use in the trial, and “reports of physical or mental examinations, and of scientific tests or
experiments,” !%°
Based upon this information, it appears that Kentucky has the necessary framework in place to
require prosecutors to fully and timely disclose all information, documents, and tangible objects
to the defense before and during a capital trial. It also appears that this framework permits
reasonable inspection, copying, testing, and photographing of the disclosed documents and
tangible objects. However, some Kentucky prosecutors still fail to comply with discovery
requirements despite this framework.
The Kentucky Supreme Court has reversed one death sentence due to a prosecutor's failure to
disclose exculpatory material to the defense prior to trial.’ In 2005, a post-conviction court
found the Commonwealth's failure to disclose exculpatory evidence in the case of Charles
Bussell reversible error, and granted relief to the former death row inmate.2” We are also aware
of one capital case where the prosecutor intentionally erased, in anticipation of an order by the
court requiring that copies be provided to the defendant, tape-recorded statements of witnesses
who testified against the defendant.” In 2011, it was discovered that Jefferson County
Assistant Commonwealth's Attorneys failed to disclose to defense counsel evidence that
suggested a defendant’s innocence.” In this case, in March 2010, “a cooperating government
witness told a [Louisville Metro Police] detective and two [Jefferson County] prosecutors that
Keny R. Porter— imprisoned 13 years for a murder he says he didn’t commit— was innocent and
that another man, Juan Leotis Sanders, had killed” the victim for which Porter was
196 Ky. R. PROF’L ConbuUCT R. 3.8(c) (except when the prosecutor is relieved of this responsibility by a protective
order of the tribunal).
17 Ky. R. CRIM. P. 7.24.
198 Id.
199 Bussell, 226 S.W.3d 96. See also Barnett v. Commonwealth 763 S.W.2d 119, 123 (Ky. 1988) (reversible error
in non-capital case not to disclose key conclusions in serologist report); Akers v. Commonwealth, 172 S.W.3d 414
(Ky. 2005) (Commonwealth's failure to disclose troopers assault report in non-capital case prejudiced defendant’ s
ability to prepare defense and was reversible error); see also Ky. R. CRIM. P. 7.24.
200 Bussell, 226 S.W.3d at 105 (unanimously upholding the grant of post-conviction relief, which was also based in
part on his trial counsel's ineffective assistance).
201 Sanbom v. Commonwealth, 754 S.W.2d 534, 539 (Ky. 1988) (referring to the prosecutor’s actions in erasing
audio tapes as “misconduct of constitutional proportions”).
202 Andrew Wolfson, Convicted murderer’s lawyer never told about witness who says he is innocent, COURIER-J.
(Louisville, Ky.), Aug. 29, 2011.
156
imprisoned.*° However, prosecutors did not disclose this information until defense counsel
learned of this evidence from a Louisville Courier-Journal reporter in late August 2011.7
Notably, Kentucky prohibits discovery in post-conviction proceedings, which is the primary
vehicle through which previously undisclosed evidence in the possession of the prosecution is
later uncovered.” Kentucky also prohibits a petitioner from using the Open Records Act to
obtain materials during post-conviction proceedings in the possession of the police or
prosecution.” Thus, the total number of capital-eligible cases in which Brady or statutory
discovery violations have occurred is unknown.
The Center for Public Integrity has also examined Kentucky criminal appeals, including both
death penalty and non-death penalty cases from 1970 to 2003, which revealed 121 cases in which
a defendant alleged prosecutorial error or misconduct.””” In thirty-seven of these cases, judges
reversed or remanded a defendant’s conviction, sentence, or indictment due to prosecutorial
misconduct that prejudiced the defendant.? Of these thirty-seven cases, three involved the
prosecution withholding exculpatory evidence from the defense.”
Furthermore, we were unable to determine the number of capital cases in which the Kentucky
Supreme Court determined that a prosecutor's failure to disclose potentially exculpatory,
mitigating, or impeachment evidence to a defendant prior to trial was harmless error. However,
the Center for Public Integrity found that in the majority of cases in which the defendant alleged
prosecutorial misconduct (eighty-one out of 121), the court found the prosecutor’s conduct to be
in error or tantamount to misconduct, but concluded that the conduct was harmless.7!°
Although Kentucky has the necessary framework in place to permit prosecutors to fully and
timely disclose evidence, and many prosecutors fully and timely comply with all legal,
professional, and ethical obligations to disclose evidence, there are documented instances where
Commonwealth prosecutors have failed to do so. Moreover, the lack of discovery in post-
conviction proceedings impedes the ability of death row inmates to present viable claims of
203 Id.
204 Id.
205 See Haight v. Commonwealth, 41 S.W.3d 436, 445 (Ky. 2001) (holding that RCr 7.42 is inapplicable in the
post-conviction context), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009);
Sanbom v. Commonwealth, 975 S.W.2d 905, 910 (Ky. 1998), overruled on other grounds by Leonard, 279 S.W.3d
151); see generally Ky. R. CRIM. P. 7.42. For more information on discovery in Kentucky courts, see Chapter Eight
on Post-Conviction Proceedings.
206 The Kentucky Attomey General is responsible for enforcement of the Kentucky Open Records Act. See
generally Ky. Rev. Stat. ANN. § 61.880 (West 2011). The Attomey General has issued opinions stating that
Kentucky law enforcement may deny a request for inspection of records where a party requests investigative records
related to a case in which an individual's full sentence has not been carried out. See, e.g., Ky. OP. ATTY. GEN. 10-
ORD-094. “[t]herefore, under Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), the [law enforcement agency]
properly denied inspection of criminal case records where the sentences had not been fully carried out.”).
*oT Harmful Error, CTR. FOR Pus. INTEGRITY, http://projects.publicintegrity.org/pm/states.aspx?st=KY (last visited
Nov. 15, 2011).
208 Id.
209 Id.
210 Nationwide Numbers, CTR. FOR PUB. INTEGRITY,
http://projects.publicintegrity.org/pm/search.aspx?act=nat&hid=y (last visited Nov. 15, 2011). In an additional three
cases, the alleged prosecutorial misconduct was not addressed by Kentucky appellate courts. Id.
157
innocence as such individuals may be unable to leam of possible exculpatory information in the
possession of the prosecution that was not disclosed at trial— even if the failure to disclose such
information was inadvertent.
We, therefore, conclude that the Commonwealth of Kentucky only is in partial compliance with
Recommendation #3.
In death penalty cases, trial counsel’s failure to seek all discoverable material, or the
prosecution’s failure to disclose— inadvertently or deliberately— exculpatory or discoverable
material, can lead to a wrongful conviction or unjust imposition of a death sentence. It is the
Kentucky Death Penalty Assessment Team’s view that new mechanisms should be instituted to
better assist the prosecution and defense to comply with all relevant discovery obligations.
Full open file discovery should be permitted in every capital trial, with a continuing duty to
disclose new material in the possession of the prosecution, law enforcement, or other entities
under the prosecution’s direction or control, as it becomes available. Such disclosure will
improve the fairness of a capital trial, will eliminate the human error which can lead to an
inadvertent failure to disclose exculpatory material, and may obviate the need for extensive
litigation of discovery violations on appeal. Under this rule, defense counsel will still be
permitted to file a formal request for discovery prior to and during trial.
Furthermore, as described in Chapter Eleven on Judicial Independence, trial courts should help
facilitate full discovery in capital cases. Kentucky should adopt a procedure requiring trial
courts to conduct a conference prior to the commencement of a capital trial to ensure that all
Parties are aware of their respective disclosure obligations.”!
D. Recommendation #4
Each jurisdiction should establish policies and procedures to ensure that
prosecutors and others under the control or direction of prosecutors who engage in
misconduct of any kind are appropriately disciplined, that any such misconduct is
disclosed to the criminal defendant in whose case it occurred, and that the
prejudicial impact of any such misconduct is remedied.
Instances of Prosecutorial Misconduct in Kentucky Death Penalty Cases
Out of the seventy-eight persons sentenced to death in the Commonwealth since the
reinstatement of the death penalty, fifty defendants’ death sentences have been overturned by
Kentucky or federal courts. 12 Of these fifty reversals, fifteen have been based, in whole or in
part, on prosecutorial misconduct or error.” As many of the capital defendants on Kentucky’s
211 See Chapter Eleven on Judicial Independence, Recommendation #6.
212 See Kentucky Death Sentences Imposed, Reversed and Commuted, 1976-2011, infra Appendix; Kentucky
Capital Case Basis for Reversals, 1976 to 2011, compiled by the ABA Death Penalty Moratorium Implementation
Project (on file with author) [hereinafter Ky. Capital Reversals].
213" See Ky. Capital Reversals, supra note 212. Two additional death row inmates were granted clemency by a
Kentucky Governor and are now serving life sentences without the possibility of parole. See Chapter Nine on
Clemency.
158
death row have additional appeals pending or not yet filed, no opinion on prosecutorial conduct
in those cases is yet available. We were also unable to determine the total number of instances in
which the court recognized prosecutorial misconduct or error in capital cases but found such
conduct “harmless” or found the defendant procedurally barred from raising the issue on
appeal.”"* We also were unable to calculate the number of instances of misconduct in capital-
eligible cases where the death penalty was sought but not imposed.
An examination of Kentucky death penalty reversals reveals that prosecutorial misconduct or
error in the reviewed cases is not conduct that would likely constitute a violation of the Kentucky
Rules of Professional Conduct to warrant investigation or discipline by the Kentucky Bar
Association (KBA). However, individual Commonwealth's Attomeys offices should retain and
implement polices to appropriately discipline prosecutors and law enforcement under their
direction or control who engage in unfair conduct, particularly when a defendant's life is at
stake.
For example, in the majority of cases reversed due to prosecutorial misconduct or error,
prosecuting attorneys were alleged to have made inappropriate arguments during opening or
closing statements.” In a number of cases, the Kentucky Supreme Court found that prosecutors
committed reversible error by repeatedly minimizing the responsibility of the jury in determining
whether the defendant should be sentenced to death.”"° Two convictions were reversed because
214 See, e.g., Brown v. Commonwealth, 313 S.W.3d 577, 630 (Ky. 2010) (“[W]e are convinced that the
prosecutor's impropriety, if any, did not constitute a manifest injustice or render Brown's trial fundamentally
unfair.”); Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001) (prosecutor's improper argument was cured by
court’s admonition to the jury); Combs v. Commonwealth, 198 S.W.3d 574, 581 (Ky. 2006) (“A jury is presumed to
follow an admonition to disregard evidence; thus, the admonition cures any error.”); Marlowe v. Commonwealth,
709 S.W.2d 424, 430-31 (Ky. 1986) (“We believe after reviewing the record that the jury would have retumed the
same verdict of guilty even without the prosecutor's comments.”).
215 See Ky. Capital Reversals, supra note 212. See, e.g., Dean v. Commonwealth, 777 S.W.2d 900, 908 (Ky. 1989)
("From the catalog of 14 improprieties identified, the following illustrations best depict the Commonwealth
attorney's flagrant conduct.”); Gall v. Commonwealth, 231 F.3d 265, 311-12 (6th Cir. 2000) (“After a close review
of the record, we find that the Commonwealth's misconduct was sufficiently egregious to render the entire trial
fundamentally unfair.”); Morris v. Commonwealth, 766 S.W.2d 58, 61 (Ky. 1989) (“Another alleged error is the
conduct of the Commonwealth Attomey during his opening statement, his questioning of witnesses, his closing
arguments, and the penalty phase of the trial. These allegations of error are well taken, as seldom have we seen such
flagrant disregard for the rules of evidence.”); Ice v. Commonwealth, 667 S.W.2d 671, 676 (Ky. 1984); Perdue v.
Commonwealth, 916 S.W.2d 148, 163-64 (Ky. 1995); Sanborn v. Commonwealth 754 S.W.2d 534, 543-44 (Ky.
1988) (“The record is replete with instances where the prosecutor misstated the evidence, and misstated the law
relating both to guilt and to punishment. Perhaps the most serious misstatement was the closing argument... .”).
216 Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky. 1985) (“In short, the prosecutor clearly sought to divert
from the minds of the jurors their true responsibility in this case by implying that the ultimate responsibility would
fall to the trial judge, this court, other appellate courts, or to the Governor. This is clearly an error of reversible
magnitude.”); Clark v. Commonwealth, 833 S.W.2d 793, 795-96 (Ky. 1991) (“Fundamental faimess requires the
highest level of reliability in the jury's determination that death is the appropriate punishment. Comments by the
prosecutor in this case leave broad doubt whether the death penalty was imposed because 1) the prosecutor
determined to seek it, or 2) the Legislature decreed it, or 3) the jury thought it only a recommendation, or 4) the jury
determined it to be the appropriate punishment.”); Dean, 777 S.W.2d at 906-07 (“We agree that the pattem
established by the drumbeat of “recommend” did indisputably denigrate the jury's responsibility for determining an
appropriate sentence for appellant.”); Tamme v. Commonwealth, 759 S.W.2d 51, 53 (Ky. 1988); Thomas v.
Commonwealth, 864 S.W.2d 252 (Ky. 1993) (error using the word “recommend” rather than “fix” requires error);
Ice, 667 S.W.2d at 676 (“emphasis on the jury's sentence as only a recommendation is improper. ... The
159
“the prosecution made deliberate and undue reference to [the two co-defendants’ | failure to make
a statement upon questioning after they were given their ‘Miranda rights.’”!’ Finally, one
capital conviction was reversed during post-conviction review due, in part, to a Brady
violation,”"°
Furthermore, as discussed in Recommendation #3, the Center for Public Integrity, in its study of
capital and non-capital criminal appeals in the Commonwealth from 1970 to 2003, found that in
thirty-seven of 121 cases in which the defendant alleged prosecutorial error or misconduct,
judges reversed or remanded a defendant’s conviction, sentence, or indictment due to the
prosecutor's prejudicial conduct.”!° Of these thirty-seven cases, thirty-four involved improper
trial tactics or arguments by the prosecution.””°
Because we were unable to obtain information on prosecutors’ policies or procedures regarding
discipline of counsel who engage in misconduct, it is unknown the extent to which appropriate
discipline was imposed in any of the above-mentioned cases to correct or prevent future errors
from occurring.”
In the event that a prosecutor's conduct does rise to the level constituting a violation of
professional ethics, Kentucky has entrusted the KBA and its Office of Bar Counsel with
investigating grievances and disciplining practicing attorneys who violate the Kentucky Rules of
Professional Conduct.” All attomeys also are required to report professional misconduct of
other attomeys to the KBA.””° In addition, at any time Kentucky attomeys may submit questions
to the Ethics Committee and the Unauthorized Practice Committee for official advisory
opinions.“ As the entity that licenses attorneys, however, only the Kentucky Supreme Court
can reprimand an attorney, suspend an attorney’s license, or order permanent disbarment from
the practice of law.?%
prosecutor broke this rule, telling the jurors that they simply “recommend” the death penalty and “are not killing [the
inmate].”).
217 Holland v. Commonwealth, 703 S.W2d 876, 880 (Ky. 1985) (reversing the conviction and death sentences of
Jack Joe Holland and Larry James).
218 Bussell v. Commonwealth, 226 S.W.3d 96, 99-103 (Ky. 2007); see infra Kentucky Death Sentences Imposed,
Reversed and Commuted, 1976-2011, at Appendix.
219 Harmful Error, CTR. FOR Pus. INTEGRITY, http://projects.publicintegrity.org/pm/states.aspx?st=KY (last visited
Nov. 15, 2011).
220 Id.
221 We note that, in contrast, we were able to obtain some information on the discipline of defense counsel in death
penalty cases, which revealed that at least some defense counsel were subsequently disbarred for conduct in a death
penalty cases. See Chapter Six on Defense Services.
222, Ky. REV. STAT. ANN. § 214.150 (West 2011); SCR 3.130-3.530; Office of Bar Counsel Overview, Ky. BAR
ASS'N, http://www. kybar.org/234 (last visited Nov. 15, 2011).
23 Ky. R. PROF’L CONDUCT 8.3(a). The Kentucky Supreme Court revised Rule 8.3 to impose a mandatory
reporting of professional misconduct requirement, effective July 15, 2009. In Re: Order Amending Rules of the
Supreme Court (SCR) 2009-05, Ky. Sup. Cr. (effective July 15, 2009), available at
http://courts.ky.gov/NR/rdonlyres/A A 868FA 5-6B4B-4C 20-A 06C-
D5C4FCOD 1596/0/RevisedSC Ruleseffective7152009.pdf.
24 SCR 3.530.
25 SCR 3.380.
160
We are aware of one prosecutor who was disciplined by the KBA after “certain taped statements
of witnesses who were called to testify for the Commonwealth had been erased in anticipation of
an order by the court requiring that copies be provided to the defendant pursuant to [RCr]
7.26(1).”
Although the Commonwealth of Kentucky has established a procedure by which grievances are
investigated and members of the Kentucky Bar are disciplined, this process is often not well-
suited to investigate or institute appropriate discipline when prosecutorial misconduct or error
occurs in death penalty cases. The high instance of reversals and citations of prosecutorial
misconduct or error in capital cases acutely demonstrates the need for appropriate discipline to
deter and prevent reoccurrence of such conduct, particularly when a life is at stake and judicial
resources are scarce. While we were unable to determine whether Commonwealth's A ttomeys
maintain established policies to discipline prosecutors or others under their control who engage
in misconduct, Commonwealth courts should be commended on the level of error correction they
have engaged in to remedy the prejudicial impact of misconduct by some Kentucky prosecutors.
Therefore, it appears the Commonwealth is in partial compliance with Recommendation #4.
E. Recommendation #5
Prosecutors should ensure that law enforcement agencies, laboratories, and other
experts under their direction or control are aware of and comply with their
obligation to inform prosecutors about potentially exculpatory or mitigating
evidence.
The Kentucky Supreme Court has stated that a prosecutor’s responsibility to disclose
exculpatory and mitigating information “known to the prosecution but unknown to the defense .
. . means that the individual prosecutor has a duty to leam of any favorable evidence known to
the others acting on the govemment’s behalf in the case, including the police.””’ RCr 7.24
requires Kentucky prosecutors, upon defense motion, to disclose evidence “in the possession,
custody or control of the Commonwealth” that
may be material to the preparation of the defense, including official police reports,
but not [] memoranda, or other documents made by police officers and agents of
the Commonwealth in connection with the investigation or prosecution of the
case, or [] statements made to them by witnesses or by prospective witnesses
(other than the defendant).?”°
26 Ky. Bar Ass’n v. Hamilton, 819 S.W.2d 726, 726 (Ky. 1991). See Sanbom v. Commonwealth, 754 S.W.2d
534, 539 (Ky. 1988) (finding “three prosecutorial errors so substantial that each would require the judgment be
reversed,” including prosecutor's intentional erasing of tape-recorded statements of witnesses who testified against
the defendant).
227 Commonwealth v. Bussell, 226 S.W.3d 96, 102 (Ky. 2007), as modified, (Aug. 30, 2007) (finding the
Commonwealth’ s failure to disclose numerous police reports suggesting the possibility of an alternative suspect in
the victim's death was a reversible Brady violation) (internal italics omitted) (citing Kyles v. Whitley, 514 U.S. 419
(1995) (prosecutor under a concomitant “duty to leam of any favorable evidence known to . . . the police.”).
“8 Ky. R. CRIM. P. 7.24(1)-(2).
161
In order to obtain relief, a defendant must show the evidence is “material,” or, in other words,
that “there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”?”°
If the Commonwealth fails to disclose evidence material to guilt, then the defendant could
receive a new trial; alternatively, if the Commonwealth fails to disclose evidence material to
punishment, the defendant could receive a new sentencing hearing.” These potential outcomes
encourage all law enforcement agencies, laboratories, and other experts under the control of the
prosecutor to comply with their obligation to inform the prosecutor of any potentially
exculpatory or mitigating evidence.
Although the Kentucky Death Penalty Assessment Team requested information on whether
prosecutors maintain policies or procedures ensuring that law enforcement agencies, laboratories,
and other experts under their direction or control are aware of and comply with their obligation
to inform prosecutors about potentially exculpatory or mitigating evidence, we did not receive
any information relevant to this Recommendation.”*’ Therefore, we do not have sufficient
information to determine whether Kentucky prosecutors are meeting the requirements of
Recommendation #5.
F. Recommendation #6
The jurisdiction should provide funds for the effective training, professional
development, and continuing education of all members of the prosecution team,
including training relevant to capital prosecutions.
The Kentucky Prosecutors Advisory Council (Council) and the Kentucky Attomey General's
Office are responsible for providing training to the Commonwealth’s prosecutors.“” While there
are no required training programs relevant to capital prosecutions, all attorneys licensed in
Kentucky must complete at least twelve-and-a-half hours of continuing legal education each
year, two hours of which must be related to ethics and professional responsibility.”*
Commonwealth prosecutors are also statutorily required to complete, upon employment and at
least once every two years, training and continuing education courses relating to domestic
violence and sexual assault.”*4
229 United States v. Bagley, 473 U.S. 667, 668 (1985); Brady v. Maryland, 373 U.S. 83 (1963); Kyles v. Whitley,
514 U.S. 419 (1995); Giglio v. United States, 405 U.S. 150 (1972); Commonwealth v. Bussell, 226 S.W.3d 96, 99-
100 (Ky. 2007); Wilson v. Parker, 515 F.3d 682, 701 (6th Cir. 2008).
280 See Agurs, 427 U.S. at 112-13; Brady, 373 U.S. at 87; Bagley, 473 U.S. at 668; Gall v. Commonwealth, 607
S.W.2d 97 (Ky. 1980); Strickler v. Greene, 527 U.S. 263 (1999). The Kentucky Supreme Court will review de novo
whether particular evidence is material under Brady. See United States v. Corrado, 227 F.3d 528, 538 (6th Cir.
2000).
231 See Ky. Prosecutors Questionnaire, Ky. Prosecutors Correspondence, infra A ppendix.
28 Ky. REV. STAT. ANN. §§ 15.705(4), 15.775 (West 2011); Prosecutors Advisory Council, OFFICE OF THE Ky.
ATT’y GEN., http://ag.ky.gov/criminal/pac/ (last visited Nov. 15, 2011).
283 SCR 3.600-3.690.
°1 Ky, REV. STAT. ANN. § 15.718 (West 2011) (requiring training “conceming the dynamics of domestic violence,
child physical and sexual abuse, rape, effects of crime on adult and child victims, legal remedies for protection,
lethality and risk issues, profiles of offenders, model protocols for addressing domestic violence, child abuse, rape,
available community resources and victims services, and reporting requirements”).
162
Although we requested information from the Council on the resources available to train
Kentucky prosecutors to handle capital cases, we were unable to determine whether the
Commonwealth routinely provides funding for the provision of and attendance at trainings
relevant to capital prosecutions.“° However, it appears that the Council and the Attorney
General’s Office offer prosecutor training programs, including the week-long Kentucky
Prosecutors Institute for new prosecutors, ”*° and the annual Kentucky Prosecutors Conference, in
which at least one program in 2010 related to the prosecution of capital cases.”*’ While the KBA
and its Continuing Legal Education Commission provide continuing education seminars,
lectures, and tele-seminars throughout the Commonwealth,”* we are unaware of whether such
trainings are relevant to capital prosecutions.
However, according to the Kentucky Attomey General's Office, Kentucky’s prosecutors have
recently “faced the worst fiscal crisis in the history of the Unified Prosecutorial System. During
fiscal year 2009, the Commonwealth's and County Attorneys were drastically underfunded,”
resulting in mandatory, unpaid furloughs for three full weeks and jeopardizing funding for victim
and witness protection programs.”° We were unable to determine whether this fiscal crisis
affected funds earmarked for effective training, professional development, and continuing legal
education of Kentucky prosecutors involved in death penalty cases.”“°
Despite the availability of some educational training, the presence of misconduct discussed
throughout this chapter calls into question the sufficiency of prosecutor training. Furthermore, it
appears that Kentucky’s recent and ongoing fiscal crisis will adversely affect the availability of
funds for effective training and professional development of all Commonwealth prosecutors,
including those involved in death penalty cases. Based on the information available, however,
we were unable to determine whether the Commonwealth is in compliance with
Recommendation #6.
285 See Ky. Prosecutors Questionnaire, infra Appendix. Capital prosecutors in Kentucky may be permitted to
acquire training with national training organizations, such as the National District Attomeys Association and its
research and training affiliate, the American Prosecutor's Research Institute, and the National College of District
Attorneys, but we were unable to confirm this information.
236 Ky, REV. STAT. ANN. §§ 15.705(4), 15.775 (West 2011); Prosecutors Advisory Council, OFFICE OF THE Ky.
ATT’y GEN., http://ag.ky.gov/criminal/pac/ (last visited Nov. 15, 2011).
237 Prosecutors Advisory Council, OFFICE OF THE Ky. ATT’y GEN., http://ag.ky.gov/criminal/pac/ (ast visited June
15, 2011); PRosEcuToRS ADVISORY COUNCIL & OFFICE OF THE Ky. ATT’y GEN., KPC 2010: KENTUCKY
PROSECUTORS CONFERENCE (Aug. 25-27, 2010), available at
hittp://www.kyprosecutors.com/kpc/2010/materials/materials/00-
Program_CLE_Travel/KPC%202010%20Program% 20A genda.pdf (providing a CLE session entitled “The Nuts and
Bolts of a Capital Murder Case”).
238 CLE Overview, Ky. BAR Ass’N, http://www.kybar.org/113 (last visited Aug. 16, 2011); KBA CD Programs,
Ky. BAR ASS’N, http://www. kybar.org/658 (last visited Nov. 16, 2011) (trainings available for purchase online).
289 QFFICE OF THE Ky. ATT’Y GEN., 2009 BIENNIAL REPORT 26 (The Kentucky General Assembly, in response,
“provided necessary funding to the prosecutors in the 2009 Extraordinary Session” which helped to avoid additional
layoffs or furloughs during fiscal year 2010.).
24° Budget documents obtained from the Office of the Kentucky State Budget Director do not identify funding
amounts allocated to prosecutor training or education. See, e.g., 2010-2012 BUDGET, supra note 11, at 35-38.
163
164
CHAPTER SIX
DEFENSE SERVICES
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
Defense counsel competency is perhaps the most critical factor determining whether an
individual will receive the death penalty. Although anecdotes about inadequate defenses long
have been part of trial court lore across the country, a comprehensive 2000 study’ shows
definitively that poor representation has been a major cause of serious errors in capital cases as
well as a major factor in the wrongful conviction and sentencing to death of innocent defendants.
Effective capital case representation requires substantial specialized training and some
experience in the complex laws and procedures that govem a capital case in a given jurisdiction,
as well as the resources to conduct a complete and independent investigation in a timely way.
Full and fair compensation to the lawyers who undertake such cases also is essential, as is proper
funding for experts.
Under current case law, a constitutional violation of the Sixth Amendment right to effective
assistance of counsel is established by a showing that the representation was not only deficient
but also prejudicial to the defendant—i.e., there must be a reasonable probability that, but for
defense counsel’s errors, the result of the proceeding would have been different.2 The 2000
study found that between 1973 and 1995, state and federal courts across the U.S. undertaking
reviews of capital cases identified sufficiently serious errors to require retrials or re-sentencing in
sixty-eight percent of the cases reviewed.’ In many of those cases, more effective trial counsel
might have helped avert the constitutional errors at trial that ultimately led to relief.
In the majority of capital cases, however, defendants lack the means to hire lawyers with the
knowledge and resources to develop effective defenses. The lives of these defendants may often
rest with new or incompetent court-appointed lawyers or overburdened public defender services
provided by the state.
Although lawyers and the organized bar have provided, and will continue to provide, pro bono
representation in capital cases, most pro bono representation is limited to post-conviction
proceedings. Only the jurisdictions themselves can address counsel representation issues in a
way that will ensure that all capital defendants receive effective representation at all stages of
their cases. Jurisdictions that authorize capital punishment therefore have the primary— and
constitutionally-mandated— responsibility for ensuring adequate representation of capital
defendants through appropriate appointment procedures, training programs, and compensation
measures.
t JAMES S. LIEBMAN ET AL., A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 (2000), available
at http://www2.law.columbia.edu/instructionalservices/liebman.
2 Strickland v. Washington, 466 U.S. 668 (1984).
3 Liebman, supra note 1.
165
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
A. Kentucky's Indigent Legal Representation System
1. Overview
Kentucky's current indigent legal representation system for capital defendants and death row
inmates consists of the Department of Public Advocacy (DPA) and the Louisville Metro Public
Defender’s Office (Metro Defender).* In addition, private counsel will undertake representation
if a conflict of interest arises with public defender representation in capital cases.°
In 1972, the Kentucky General Assembly adopted Chapter 31 of the Kentucky Revised Statutes
(KRS), creating a statewide public defender system and requiring every county in the
Commonwealth to develop a plan for the representation of its indigents.® DPA was established
that year as the Commonwealth’s statewide public defender and provides representation at trial,
direct appeal, during state and federal post-conviction proceedings, and during clemency
proceedings for all indigent capital defendants and death row inmates in 119 of 120
Commonwealth counties." The Metro Defender, an independent non-profit corporation,
provides representation in criminal cases, both capital and non-capital, occurring in Jefferson
County.® Fayette County Legal Aid, an independent non-profit organization, provided civil and
criminal legal representation to Fayette County’s (Lexington) indigent persons from 1964 until
its board voted in 2007 to permit DPA to “take over management and funding of the office after
realizing that it could not continue to operate without an increase in funding” from the county
and Commonwealth.’
4 Ky. DEp’T OF Pus. ADVOCACY, FISCAL YEAR 2011 ANNUAL LITIGATION REPORT 3, 8-10 (2011), available at
http://dpa.ky.gov/NR/rdonlyres/183A 4143-6A 0B-4F03-9ECO-
72DB51045A 71/0/201 1A nnualReportFINA Lfullpage0923112.pdf [hereinafter DPA 2011 ANNUAL REPORT]; see
also infra notes 11-48 and accompanying text.
5 DPA 2011 ANNUAL REPORT, supra note 4, at 3; SCR 3.130(1.7) (prohibiting a lawyer from representing a client
if the representation involves a concurrent conflict of interest and no waiver is obtained).
6 Ky. REV. STAT. ANN. §§ 31.010, 31.050-31.060 (West 2011). A statewide system of public defense “function[s]
entirely under the direction of a central office that fund[s] and administer{s] all public defender offices in the state.”
U.S. BUREAU OF JUSTICE STATISTICS, CENSUS OF PUBLIC DEFENDER OFFICES, 2007, SPECIAL REPORT: STATE
PUBLIC DEFENDER PROGRAMS, 2007 1 (Sept. 2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/spdp07.pdf
{hereinafter BJS REPORT].
7 Ky. Rev. STAT. ANN. §§ 31.030, 31.050, 31.060, 31.065 (West 2011). See also Ky. REV. STAT. ANN. §
31.220(1) (West 2011) (authorizing Commonwealth defense attorneys to represent a needy person in U.S. federal
court if “the matter arises out of or is related to an action pending or recently pending in a [Kentucky] court of
criminal jurisdiction”).
8 The Metro Defender is sometimes referred to as DPA’s thirtieth regional trial office or DPA’s Jefferson Region
Branch.
° Beth Musgrave, State to Run Legal Aid; Public Defender’s Office has Budget Woes, LEXINGTON HERALD-
LEADER, July 12, 2007, available at http://www.nlada.org/D MS/Documents/1184254879.97/121619.html. At the
time of the transition to a regional office of DPA, all sixteen lawyers and seven support staff were asked to stay on
as DPA employees. Id.
166
In 2011, there were 325 attorneys in the Commonwealth’s public defender offices who provided
representation in 180,036 cases, including 152,727 new trial cases, 101 of which were capital
felony cases.’
a. The Department of Public Advocacy
DPA was “established as an independent agency of [the Commonwealth’ s] government, attached
for administrative purposes to the Justice and Public Safety Cabinet, in order to provide for the
establishment, maintenance, and operation of a state-sponsored and controlled” public defender
system.'! DPA is responsible for the representation of the Commonwealth’s indigent criminal
defendants, including capital defendants and death row inmates, at trial, direct appeal, state post-
conviction, and federal habeas proceedings.” DPA has thirty regional trial offices, some of
which serve up to eight Commonwealth counties, and two capital trial branch offices.'*
In addition to administering Kentucky’s statewide public defender system, the authority and
duties of DPA include, but are not limited to
a) Providing technical aid to local counsel representing indigents;
10 DPA 2011 ANNUAL REPORT, supra note 4, at i, 6. On December 4, 2009, the Kentucky Bar Association
Criminal Justice Roundtable (Roundtable) unanimously adopted a resolution establishing common case counting
principles to be used by the Kentucky Administrative Office of the Courts, Unified Prosecutorial System, and DPA,
in order to make the comparison of both prosecutors and defenders caseload figures easier and more comprehensible
and to ensure adequate funding for the proper functioning of the Commonwealth’s criminal justice system. See Ky.
BAR ASS’N, CRIMINAL JUSTICE ROUNDTABLE FINDINGS AND RECOMMENDATIONS, available at
http://dpa.ky.gov/NR/rdonlyres/5F1F627A -EF50-46BD-9C11-
36C6E186CA B7/0/K BA Criminal] usticeR oundtableFindingsandRecommendationsFinalA pproved_3_.pdf. In order
to more accurately identify the actual workloads of prosecutors and defenders, the Roundtable agreed to several
common principles, including to “identify total cases as the number of cases opened each year, plus the cases carried
over into the next year,” to count probation revocation cases in the total case number, and not to count Persistent
Felony Offender cases as separate cases. Id. Previously, DPA included in its case totals parole and probation
revocations, contempt hearings, and Persistent Felony Offender charges as separate cases, and only included cases
that were opened during the fiscal year, rather than including ongoing cases handled by DPA that were opened in
previous years. Email to Sarah Turberville and Paula Shapiro from Edward Monahan and Glenn McClister, Ky.
Dep't of Pub. Advocacy, Mar. 8, 2011 (on file with author). DPA estimates that use of the agreed upon case
counting method increased DPA’s overall caseloads by ten to fifteen percent. Id.
i Ky. REV. STAT. ANN. § 31.010 (West 2011), H.B. 461, 1972 Gen. Assemb., Reg. Sess. (Ky. 1972) (appointing
DPA responsible for representing the Commonwealth's “indigent persons accused of crimes or mental states which
may result in their incarceration or confinement” and ensuring the protection of the rights of Kentuckians with
disabilities); SPANGENBERG GRP., STATE INDIGENT DEFENSE COMMISSIONS 17 (Dec. 2006), available at
http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_state_indi
entdefense_feb07.authcheckdam.pdf.
2 Ky. REV. STAT. ANN. §§ 31.030(1), 31.219(1) (West 2011); Ky. R. Crim. P. 3.05(2); Division Overview, Ky.
Dep’T OF Pus. ADvocacy, http://www.dpa.ky.gov/div (last visited July 21, 2010) (also representing indigent
persons in DUI cases, involuntary commitment cases, juvenile cases, and criminal cases); Interview by Sarah
Turberville and Paula Shapiro with the Ky. Dep’t of Pub. Advocacy (DPA), June 14, 2010 (on file with author).
3 DPA 2011 ANNUAL REPORT, supra note 4, at 3, 6; Trial Division, Ky. DEp’T OF PuB. ADVOCACY,
http://www.dpa.ky.gov/div/trial.htm (last visited July 21, 2010). The thirty regional trial offices include the Metro
Defender in Louisville. Supra note 8; DPA 2011 ANNUAL REPORT, supra note 4, at 6.
167
b) Assisting local counsel on appeals or taking appeals for local counsel, in the
same manner as such appeals for the Commonwealth are presently handled by
the Attorney General;
c) Developing and promulgating standards and regulations, rules, and procedures
for the administration of the defense of indigent defendants in criminal cases
which the public advocate, statutes, or the courts determine are subject to
public assistance;
d) Appointing assistant public advocates;
e) Reviewing local plans for providing counsel for indigents;
f) Conducting research into, and developing and implementing methods of,
improving the operation of the criminal justice system with regard to indigent
defendants and other defendants in criminal actions;
g) Issuing such rules, regulations, and standards as may be reasonably necessary
to carry out the provisions of this chapter, the decisions of the United States
Supreme Court, the decisions of the Kentucky Supreme Court, Court of
Appeals, and other applicable court decisions or statutes;
h) Being authorized to seek and apply for and solicit funds for the operation of
the defense of the indigent, or protection of the persons with disabilities
programs from any source, public or private, and to receive donations, grants,
awards, and similar funds from any legal source... .;
i) Being authorized to assign a substitute attorney, for good cause, at any stage
of representation, including appeal or other post-conviction proceeding ... .;
and
j) Do such other things and institute such other programs as are reasonably
necessary to carry out the provisions of this chapter... .'¢
DPA is administered by the Public Advocate and is divided into four divisions: Trial, Post Trial,
Law Operations, and Protection and Advocacy. 7
The Public Advocate
The Commonwealth’s Public Advocate, appointed to renewable four-year terms by the Governor
upon recommendation from the Public Advocacy Commission (described below), is the chief
administrator of DPA.'® S/he must be an attorney licensed in Kentucky, with at least five years
of experience practicing law.’’ In addition to serving as a member of the Public Advocacy
Commission, the Public Advocate appoints a Deputy Public Defender, assistant public defenders,
4 Ky. REV. STAT. ANN. § 31.030 (West 2011).
15 Division Overview, Ky. DEP’T OF Pub. ADVOCACY, http://www.dpaky.gov/div (last visited July 21, 2010).
Divisions of DPA not directly involved in the representation of capital defendants include the Law Operations and
the Protection and Advocacy Divisions. Law Operations, Ky. DeEp’T OF PuB. ADVOCACY,
http://dpa.ky.gov/div/lawops.htm (last visited July 19, 2010); P & A History, PROTECTION & Apvocacy Dvwv.,
http://www.kypa.net/drupal/?q=taxonomy/term/141 (last visited Nov. 19, 2011).
16” Ky. REV. STAT. ANN. § 31.020(2) (West 2011) (the appointment may be renewed upon the expiration of each
tem). See also infra note 33 and accompanying text.
"Id.
168
and other DPA personnel.’® The Office of the Public Advocate is “responsible for the oversight
of the agency and includes the Public Advocate, Deputy Public Advocate [and] General Counsel,
and all strategic planning and education functions.”*” The Public Advocate must submit an
annual report to DPA “showing the number of persons represented [], the crimes involved, the
outcome of each case, and the expenditures, totaled by kind, made in carrying out the
responsibilities imposed by” KRS Chapter 31.7”
Trial Services Division
DPA’s Trial Services Division is composed of seven full-time regional trial branches, including
the Northem, Bluegrass, Eastern, Central, Western, and Jefferson”! Region Branches, and the
Lexington Capital Trial Branch (CTB).” Trial public defenders are supported by investigators,
alternative sentencing workers, clerks, paralegals, social workers, and secretaries. 3 The CTB is
split into two entities, Capital East and Capital West, and employs one Branch manager, one
supervisory directing attorney, eight staff attorneys, two investigators, and two mitigation
specialists.“ CTB attorneys, along with capital-qualified attorneys from the other six branches
of the Trial Services Division, primarily represent capital defendants.”> However, if a conflict of
interest bars any DPA attomey from providing representation in a particular case, each regional
office within the Trial Services Division will contract with private “conflict” counsel to represent
a capital client.”®
Post Trial Services Division
18 Ky. REV. STAT. ANN. § 31.020(3)-(5) (West 2011). The Public Advocate also appoints a seventeen-member
citizen advisory board to oversee DPA’s Protection and Advocacy Division. Ky. REV. STAT. ANN. § 31.035 (West
2011).
19 OFFICE OF Ky. STATE BUDGET DiR., BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS 2008-
2010 345 (Jan. 29, 2008), available at http://www.osbd.ky.gov/NR/rdonlyres/1015785C-71A D-4CCC-9BB5-
4F1B42511BA 5/0/0810 BOC_Volumel.pdf [hereinafter 2008-2010 BUDGET].
2 Ky. REV. STAT. ANN. § 31.050(7) (West 2011).
21 The Louisville Metro Public Defender’s Office represents DPA’s Jefferson Region Trial Branch. Supra note 8.
> Trial Division, Ky. DEp’T oF PuB. ADVOCACY, http://www.dpa.ky .gov/div/trial.htm (last visited Nov. 19, 2011).
Id.
4 Telephone Interview by Paula Shapiro with Tom Griffiths, CTB Manager, Ky. Dep’t of Pub. Advocacy, Oct.
28, 2010 (on file with author). There have been a number of capital attomey positions vacant in recent years. Id.;
Email from Ed Monahan, supra note 10.
5 Interview with Tom Griffiths, supra note 24; Ky. DEp’T oF PuB. ADVOCACY, FISCAL YEAR 2010 ANNUAL
REPORT 21 (2011), available at http://dpa.ky.gov/NR/rdonlyres/FB 7F07A 7-B412-4D 3E-90BB-
DA19ECOE4DE3/0/DPA_2010_CaseloadReportFINA Landcover.pdf (“When multiple co-defendants are involved
inacase, DPA many times must seek “conflict” representation. A single DPA office can only represent one of that
set of defendants because of attorney ethical rules unless there is a waiver of the conflict. Without such a waiver, the
other indigent clients from that same incident must be represented either by other DPA offices or by outside counsel.
In these instances, DPA contracts with outside “conflict” attomeys at hourly rates. . . .”) [hereinafter DPA 2010
ANNUAL REPORT]; Ky. R. CRIM. P. 8.30; SCR 3.130(1.7).
26 DPA 2011 ANNUAL REPORT, supra note 4, at 3; Trial Division, Ky. Drp’T OF PUB. ADVOCACY,
http://www.dpa.ky.gov/div/trial.htm (last visited Nov. 17, 2011) (“Each of the full-time [trial] offices contract with
attorneys in private practice to provide conflict representation.”); Ky. R. CRIM. P. 8.30; SCR 3.130(1.7).
169
DPA’s Post Trial Services Division provides defense services for convicted indigent persons in
the Commonwealth’s state and federal court systems and to juveniles in treatment facilities.””
The Post Trial Division includes the Juvenile Post Disposition Branch, Appellate Branch, and
Post-Conviction Branch.” The Appellate Branch, which processes and assigns DPA
representation in all appeals from state court judgments, is primarily responsible for
representation of the Commonwealth’s death row inmates on direct appeal.” The Post-
Conviction Branch represents Kentucky’s incarcerated inmates, both capital and non-capital, in
state post-conviction cases and federal habeas corpus proceedings.” The Post-Conviction
Branch includes five full-time capital attomeys, two investigators, and a mitigation specialist.”
b. The Public Advocacy Commission
In 1982, the Kentucky General Assembly established the Kentucky Public Advocacy
Commission (Commission) to oversee the Public Advocate and the public advocacy system
generally, perform budgetary responsibilities including supporting DPA requests for funding to
the Kentucky General Assembly, and ensure DPA’s “independence through public education
about the purposes of the public advocacy system.”** The Commission also selects three
candidates to recommend to the Governor for Public Advocate, and assists the Public Advocate
in selecting his/her staff.** The Commission must meet quarterly each year.™*
The Commission consists of twelve members, six of whom must be appointed by the Governor,
including a child advocate, three individuals appointed from recommendations from the
Kentucky Bar Association’s Board of Governors, and one who is appointed upon the
recommendation of the joint advisory boards of the Protection and A dvocacy Division of DPA.”
Other members include two individuals appointed by the Kentucky Supreme Court and the dean
or his/her designee from each of Kentucky’s three law schools.** The Public Advocate is also a
member of the Commission and serves as its Secretary.” No member of the Commission may
be a prosecutor, law enforcement official, or judge.® Each Commission member serves a
27 Ky. Rev. STAT. ANN. § 31.110(2)(c) (West 2011); Post Trial Division, Ky. DEP’T OF PuB. ADVOCACY,
http://www.dpa.ky.gov/div/pt.htm (last visited Nov. 17, 2011).
28 DPA 2011 ANNUAL REPORT, supra note 4, at 12; Post Trial Division, Ky. DEp’T oF PuB. ADVOCACY,
http://www.dpa.ky.gov/div/pt.htm (last visited Nov. 17, 2011).
29 DPA 2011 ANNUAL REPORT, supra note 4, at 12; Ky. REV. STAT. ANN. § 31.219 (West 2011).
30 DPA 2011 ANNUAL REPORT, supra note 4, at 12; Post Trial Division, Ky. DEP’T oF PuB. ADVOCACY,
http://www.dpa.ky.gov/div/pt.htm (last visited Nov. 17, 2011); Ky. Rev. STAT. ANN. § 31.220 (West 2011).
31" Interview with DPA, supra note 12.
32 Ky. REV. STAT. ANN. § 31.015(6)(c) (West 2011) (effective July 15, 1982). In 2007, fifteen statewide public
defense systems “were overseen by an advisory board or commission.” BJS REPORT, supra note 6, at 5.
% Ky. REV. STAT. ANN. § 31.015(6)(a)-(b) (West 2011).
* Ky. REV. STAT. ANN. § 31.015(3) (West 2011).
35 Ky. REV. STAT. ANN. § 31.015(1)(a) (West 2011), amended by H.B. 564, 2010 Gen. Assemb., Reg. Sess. (Ky.
2010).
36 Id. The law schools are Salmon P. Chase College of Law of Northem Kentucky University, University of
Kentucky College of Law, and Louis D. Brandeis School of Law at the University of Louisville.
37 Ky. Rev. STAT. ANN. § 31.015(4) (West 2011); Division Overview, Ky. Dep’ OF PuB. ADVOCACY,
http://www.dpa.ky.gov/div (last visited Nov. 17, 2011). The Public Advocate is designated as an “ex officio”
member of the Commission. Ky. REV. STAT. ANN. § 31.015(4) (West 2011).
% Ky, REV, STAT. ANN. § 31.015(1)(a) (West 2011).
170
renewable term of four years.*’ The Chair of the Commission is elected by the other members to
a renewable one-year term.*° Members of the Commission are not paid salaries, but will receive
$100 per day for each meeting attended as well as reasonable and necessary compensation for
expenses incurred during the performance of their duties."”
c. The Louisville Metro Public Defender’ s Office
Section 31.060 of the KRS requires any county in the Commonwealth with ten or more Circuit
judges to have a local office of public advocacy and to submit a plan of operation to DPA.”
Since 1972, the Metro Defender has provided legal services to Louisville’s “indigent adults and
juveniles accused of crimes and status offenses, and to those who are subjected to involuntary
hospitalization due to mental illness.”*?
The Metro Defender is administered by a Chief Public Defender and Executive Director, as well
as a Deputy Chief Public Defender.’ It is organized into eight divisions, including five teams of
attomeys within the Adult Trial Division, Juvenile Trial Division, Capital Trial Division, and
Appellate Division.” The Capital Trial Division, with five attorneys, an investigator and a
capital mitigation specialist, represents Jefferson County indigents in capital cases.° In the
event of a case with multiple co-defendants or a conflict of interest, the Metro Defender will
contract with outside conflict counsel under its “Assigned Counsel Panel Plan” to provide
representation in such cases.’ The Metro Defender’s A ppellate Division employs five attomeys
who handle all of Louisville’s capital direct appeals.*®
2. Funding
Kentucky’s statewide indigent defense system is funded primarily through General Fund
appropriations from the Kentucky General Assembly, the Restricted Fund,“* and federal grants.”
od.
40 Ky. REV. STAT. ANN. § 31.015(3) (West 2011).
Ky. Rev. STAT. ANN. § 31.015(5) (West 2011). Generally, commissioners waive receipt of the $100 stipend.
Statement of Michael Bowling and Allison Connelly, former and current Public Advocacy Commissioners,
respectively, Nov. 5, 2010 (on file with author).
22” Ky. REV. STAT. ANN. § 31.060(1) (West 2011) (effective 1972). Jefferson County has thirteen circuit judges.
Jefferson County Information, Ky. Court OF JUSTICE, http://courts.ky.gov/counties/jefferson (last visited Nov. 17,
2011).
‘43 Ky. REV. STAT. ANN. § 31.060 (West 2011); Interview by Sarah Turberville and Paula Shapiro with Louisville
Metro Pub. Defender’s Office (Metro Defender), June 14, 2010 (on file with author). The Metro Defender was
organized and incorporated under Commonwealth law in 1971. History, LOUISVILLE METRO PUB. DEFENDER’S
OFFICE, http://www. louisvillemetropublicdefender.com/history.html (last visited Nov. 17, 2011).
“4 Organizational Chart, LOUISVILLE METRO Pus. DEFENDER’ S OFFICE,
http://www louisvillemetropublicdefender.com/org_chart.pdf (last visited Aug. 13 2010); Petition for Declaratory
Judgment, Lewis v. Hollenbach, Franklin Cir. Court Division II, No. 08-CI-1094, at *6 (filed June 30, 2008).
saa Organizational Chart, LOUISVILLE METRO Pus. DEFENDER’S OFFICE,
http://www louisvillemetropublicdefender.com/org_chart.pdf (last visited Nov. 17, 2011).
46" Interview with Metro Defender, supra note 43.
“" Id.; Ky. R. CRIM. P. 8.30.
Interview with Metro Defender, supra note 43.
See infra note 59 and accompanying text on the Restricted Fund.
°° Ky. REV. STAT. ANN. § 31.030(11) (West 2011).
171
Under KRS 31.185, the Commonwealth also provides supplemental funding to public defender
and private defense counsel for the payment of “reasonably necessary” expert assistance at trial
and during post-conviction proceedings.*
a. The Department of Public Advocacy
The Kentucky General Assembly must “appropriate sufficient funds for DPA to carry out its
constitutional and statutory duties and responsibilities.”** Generally, the Public Advocate
prepares a biennial operating budget request that covers all Commonwealth counties, including
Jefferson, which is submitted through the Justice and Public Safety Cabinet's overall budget
proposal to the Govemor.*? The Governor then submits a biennial budget proposal to the
General Assembly in January of every other year.’ The Kentucky General Assembly must
approve the Commonwealth’s budget and then appropriate funds for Commonwealth agencies,
including DPA.®° Funds appropriated to DPA support operational costs for the entire statewide
defender system, including partial operation of the Metro Defender and the funds to compensate
private counsel contracted by DPA and the Metro Defender to handle conflict cases.*°
The General Assembly’s biennial appropriation includes allocations from the General Fund and
the Restricted Fund, which, along with any federal grants, comprise DPA’s total operating
budget.°” The General Fund “consist{s] of all moneys, not otherwise restricted, available for the
general operations of state government.” The Restricted Fund consists of “budget unit receipts
restricted as to purpose by statute.”°° For example, under KRS 31.211, upon a determination of
indigence by the court, a criminal defendant may be required to pay a nominal fee assessed by
the court that is then included in the Restricted Fund for use by DPA.” The Restricted Fund also
includes revenue assessed through KRS 189A.050, which provides for the collection of a service
51 Ky. REV. STAT. ANN. § 31.185 (West 2011); Hodge v. Coleman, 244 S.W.3d 102, 108 (Ky. 2008), overruling in
part Stopher v. Conliffe, 170 S.W.3d 307 (2005).
Petition for Declaratory Judgment, Lewis v. Hollenbach, Franklin Circuit Court Division II, Civil Action No.
08-CI-1094, at *10 (filed Jun. 30, 2008); Ky. Rev. STAT. ANN. §§ 31.010-31.241 (West 2011).
53 Ky. REV. STAT. ANN. §§ 48.030, 48.040 (West 2011). See also 2008-2010 BUDGET, supra note 19, at 345-46;
Ky. DEp’T OF PuB. ADVOCACY, OPERATING BUDGET REQUEST: PRIORITY RANKING SUMMARY RECORD, 2010-2012
Ky. BRANCH BupGeT 20 (on file with author) [hereinafter DPA OPERATING BUDGET].
54 Ky. REV. STAT. ANN. §§ 48.050, 48.100 (West 2011).
55 Ky. REV. STAT. ANN. §§ 48.210, 48.300 (West 2011).
50 Ky. REV. STAT. ANN. § 31.050(2) (West 2011) (“the public advocate may allot a sufficient sum, subject to the
approval of the secretary of the Finance and Administration Cabinet to the county or counties” who have submitted
a plan for the defense of its indigents); Interview with Metro Defender, supra note 43.
57 DPA 2011 ANNUAL REPORT, supra note 4, at 2; Ky. REV. STAT. ANN. § 48.010(15)(a), (£) (West 2011). See,
e.g., 2008-2010 BUDGET, supra note 19, at 345.
8” Ky. REV. STAT. ANN. § 48.010(15)(a) (West 2011).
59 Ky. REV. STAT. ANN. § 48.010(15)(f) (West 2011). The Restricted Fund is consists of revenue from three
sources: (a) partial fees paid by indigent defendants represented by DPA, pursuant to KRS 31.211, (b) DUI service
fees paid by defendants convicted of DUIs, pursuant to KRS 189A .050, and c) court costs collected pursuant to KRS
42.320(2)(f), which is capped at $1.75 million. DPA 2011 ANNUAL REPORT, supra note 4, at 2.
50 Ky. REV. STAT. ANN. § 31.211(1), (3), (8) (West 2011) (assessing a partial fee against an indigent defendant,
capable of paying some amount, at each stage of the proceedings). Kentucky is one of nineteen state-based public
defender programs with a system of cost recoupment for public defense services; only nine of these, including
Kentucky, do so through a standard statutory fee. BJS REPORT, supra note 6, at 9.
172
fee from persons convicted of drunk driving.” In addition, the KRS 42.320 “Court Cost
Distribution Fund” requires that 3.5 percent of the revenue assessed through fees under the
statute be allocated to the Restricted Fund for use by DPA.
In fiscal year 2009, the Kentucky General Assembly allocated $37,826,300 to DPA, and in that
year, DPA represented clients at trial and during post-trial proceedings in 147,245 cases.
According to DPA, in 2007 Kentucky spent $3,798,387 on capital representation in death penalty
trial, appellate, and state and federal post-conviction cases.“ Table 1 below illustrates the state
and federal funding allocations to DPA since 1998.
Table 1
KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY FUNDING, 1998-2012
Fiscal Y ear™ General Fund® Restricted Fund™ | Federal Funds® | Total Budget
1998 13,643,200 5,362,700 1,106,700 20,112,600
1999 16,637,100 4,335,800 1,192,500 22,185,400
2000 17,949,200 4,126,900 901,700 22,977,800
2001 22,380,000 3,000,000 913,100 26,293,100
51 Ky. REV. STAT. ANN. §§ 189.050, 189A.010 (West 2011). Originally $200, in 2008 the Kentucky General
Assembly approved a fee increase to $375. Ky. REV. STAT. ANN. § 189A.050 (West 2011). In fiscal year 1999, the
DUI service charge raised $1,169,870 for DPA. SPANGENBERG GRP., PUBLIC DEFENDER APPLICATION FEES: 2001
UPDATE 10 (2002), available at
http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/pdapplicationfees2001-narrative.pdf
[hereinafter SPANGENBERG 2002].
2 Ky. REV. STAT. ANN. § 42.320(1), (2)(f) (West 2011). In addition, from 1994 to 2002, DPA received funds
collected under KRS 31.051, which required any indigent person assigned a public defender in a criminal case to
pay an administrative fee. Ky. REV. STAT. ANN. § 31.051 (West 2011) (repealed effective July 15, 2002).
3” Ky. DEP’T OF PUB. ADVOCACY, Budget Request for 2010-2012: The 2020 Public Defense Service Plan 4 (Oct.
9, 2009) (on file with author) (noting that 32,637 cases were in the Commonwealth’s circuit courts and 107,480
were in district court) [hereinafter DPA SERVICE PLAN]. We note that the number of cases listed was calculated
using DPA’s previous case counting method. See supra note 10.
6 Email from Ed Monahan, supra note 10.
6 See 2008-2010 BUDGET, supra note 19, at 345; OFFICE OF Ky. STATE BUDGET DIR., BUDGET OF THE
COMMONWEALTH OF KENTUCKY, FISCAL YEARS 2006-2008 (2006), available at
http://www.osbd.ky.gov/NR/rdonlyres/SF7D 7F51-5023-4679-9479-9D EGA 916FA 62/0/0608 BOC_Justice.pdf; Ky.
OFFICE OF STATE BuDGET Dir, BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS 2004-2006 (Jan.
30, 2005), available at http://www.osbd.ky.gov/NR/rdonlyres/D 7FA 7219-C1BE-49A C-B28B-
17F4D93C1007/0/0506BOC_Vol1C.pdf; OFFICE OF Ky. STATE BUDGET Dik, BUDGET OF THE COMMONWEALTH OF
KENTUCKY, FISCAL YEARS 2002-2004 (Jan. 22, 2002), available at
http://www.oshd.ky.gov/NR/rdonlyres/FFEA 54D B-0257-46EC-9071-17D61933D 6BD/0/0204BOC_Vol1B.pdf;
OFFICE OF Ky. STATE BUDGET DiR., BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS 2000-2002
(jan. 25, 2000), available at _http://www.osbd.ky.gov/NR/rdonlyres/E53A B2E5-16E3-4CDD-A57F-
D6047A 055B42/0/0002BOC_Vol1C.PDF; OFFice oF Ky. STATE BUDGET DiR., BUDGET OF THE COMMONWEALTH
OF KENTUCKY, FISCAL YEARS 1998-2000, PPR-15 (May 18, 1998), available at
http://www.osbd.ky.gov/NR/rdonlyres/2EB86E89-46BB-42C1-A FB6-4A 104E47598A /0/9800BOC_Vol1d.pdf.
This chart does not include funding provided under KRS 31.185.
8 OFFICE OF Ky. STATE BUDGET DiR., BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS 2010-
2012 265 (Jan. 19, 2010), available at http://www.oshd.ky.gov/NR/rdonlyres/8C66C5F2-7DC7-4BCF-A 63D-
65127936E565/0/1012ExecBud_Volumel_C.pdf (explaining that 2011 and 2012 figures are “Enacted” amounts).
* Ky, REV. STAT. ANN. § 48.010(15)(a) (West 2011).
Ky, REV. STAT. ANN, § 48.010(15)(£) (West 2011).
8° Ky. Rev. STAT. ANN. § 48.010(15)(d) (West 2011) (defining “Federal Funds” as “all receipts from the federal
government for any purpose”).
173
2002 24,821,100 3,015,900 958,500 28,795,500
2003 23,925,300 4,454,100 1,886,600 30,266,000
2004 25,389,800 4,400,800 1,605,100 31,395,700
2005 25,264,400 9,362,100 2,131,200 36,757,700
2006 25,923,800 8,723,100 1,771,500 36,418,400
2007 29,770,700 6,817,300 1,618,300 38,206,300
2008 33,967,200 4,492,900 1,713,100 40,173,200
2009 31,741,100 4,301,900 1,783,300 37,826,300
2010 38,049,500 4,003,800 2,662,110 44,714,400
2011* 38,143,000 4,020,000 2,196,000 44,359,400
2012* 38,143,400 4,044,000 1,798,500 43,985,900
* Denotes projected fiscal year budget
b. The Louisville Metro Public Defender’ s Office
Pursuant to KRS 31.050 and 31.060, two-thirds of the funding for the Metro Defender’s annual
operating budget comes from the General Assembly's allocation to DPA to “defray[] the
expenses” of Louisville’s public defender program.” The other third is funded by the
Louisville-Jefferson County Metro Government.” In recent years, DPA provided the Metro
Defender with $4 million, while the Louisville-Jefferson County Metro Government provided $2
million.” In fiscal year 2011, DPA will allocate $4.2 million to Metro Defender and the county
govemment will allocate $2.1 million.”
c. Funding for Contract Conflict Counsel
The annual operating budgets of DPA and the Metro Defender must also support one hundred
percent of the costs associated with compensation of private counsel contracted to handle capital
and non-capital conflict cases by each of these entities.”
d. KRS 31.185 Funding
In addition to supporting DPA and the Metro Defender’s annual operating budgets, pursuant to
KRS 31.185 the Commonwealth must maintain an account, available to all counsel representing
indigent defendants, to pay for expert witness fees or any other “direct expense, including the
cost of a transcript[,] . . . that is necessarily incurred in representing a needy person under this
chapter.””° Under this statute, each county is required to appropriate twelve and a half cents, per
7 See Ky. REV. STAT. ANN. §§ 31.050, 31.060 (West 2011). See also Interview with Metro Defender, supra note
43.
71 Ky. Rev. STAT. ANN. §§ 31.050(2) (West 2011) (“If the plan for defense of indigent persons is approved, the
public advocate may allot a sufficient sum, subject to the approval of the Finance and Administration Cabinet”),
31.060(2) (2011) (the county “shall contribute to the funding of the plan selected and approved in such amounts as
the Department of Public Advocacy shall deem reasonable and necessary.”).
; Interview with DPA, supra note 12.
Id.
™ Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43. For more information on
the compensation of contract conflict counsel, see infra notes 120-127 and accompanying text.
5 Ky. REV. STAT. ANN. § 31.185(3) (West 2011) (the fund is administered by the Finance and Administration
Cabinet); SPANGENBERG 2002, supra note 61, at 10 (noting that the KRS 31.185 fund was established “to cover
174
capita of the county population, to this account to pay court orders issued under the statute for
payment of expenses.’”° Charges to this fund may not be greater than the rate charged by the
Commonwealth and its agencies.” In the event that the county funds under KRS 31.185 are
depleted, the Commonwealth is required to pay the additional costs out of the Treasury.”
B. Appointment, Qualifications, and Compensation of and Resources Available to Defense
Counsel at Trial, on Appeal, and in Post-Conviction Proceedings
1. Appointment of Counsel
Kentucky must provide counsel to an indigent person accused or convicted of a capital offense at
trial and on direct appeal.” In certain circumstances, appointment of counsel is required during
state post-conviction proceedings; however, in practice, the DPA will assign counsel to each
death row inmate before his/her post-conviction proceedings commence.” DPA also may
represent death row inmates in federal habeas corpus proceedings if the “matter arises out of or is
related to an action pending or recently pending in a [Kentucky] court of criminal jurisdiction.”
In all criminal cases, if a defendant raises the issue of indigence and requests counsel, the circuit
court must hold a non-adversarial hearing to determine whether the defendant is indigent and
must enter findings upon the conclusion of the hearing.” The determination must be made no
later than the defendant's first appearance in court, usually at arraignment.® An indigent person
is defined as a person who “at the time his or her need is determined, is unable to provide for the
expert witness fees and other comparable expenses associated with providing indigent defense services.”). In
addition, “[e]xpenses incurred in the representation of needy persons confined in a state correctional institution” are
paid from the KRS 31.185 fund. Ky. REV. STAT. ANN. § 31.185(6) (West 2011).
© Ky. Rev. STAT. ANN. § 31.185(4) (West 2011). See also Ky. REV. STAT. ANN. § 31.185(7) (West 2011)
(restricting the orders payable under this statute to those entered after July 15, 1994).
™ Ky. REV. STAT. ANN. § 31.185(3) (West 2011).
7% Ky. REV. STAT. ANN. § 31.185(4) (adding that “[tJhe funds in this account shall not lapse and shall remain in the
special account.”), 31.185(5) (West 2011).
™ Ky. Const. § 11; Ky. REV. STAT. ANN. § 31.110(1)(a) (West 2011) (“A needy person . . . on suspicion of having
committed, or who is under formal charge of having committed, or is being detained under a conviction of, a serious
crime . . . is entitled [t]o be represented by an attomey to the same extent as a person having his or her own counsel
is so entitled”); Ky. REV. STAT. ANN. § 31.110(2)(a)-(c) (West 2011) (“A needy person . . . is entitled . . . [t]o be
counseled and defended at all stages of the matter beginning with the earliest time when a person providing his own
counsel would be entitled to be represented by an attomey and including revocation of probation or parole . . . in any
appeal . . . in any other post-conviction [proceeding] that the attommey and needy person considers appropriate”); Ky.
REV. STAT. ANN. § 31.219 (West 2011). In practice, DPA and the Metro Defender appoint attorneys from their
appellate units to represent a death row inmate on direct appeal, rather than have the trial attorneys continue to
provide representation. DPA 2011 ANNUAL REPORT, supra note 4, at 12; Interview with Metro Defender, supra
note 43.
80 Ky. R. Crim. P. 11.42(5); Fraser v. Commonwealth, 59 S.W.3d 448, 456 (Ky. 2001) (Rule “11.42(5) establishes
when a judge must appoint counsel for an indigent movant”), overruling, in part, Commonwealth v. Ivey, 599
S.W.2d 456 (Ky. 1980) (to extent that it holds that the governing standard for appointment is KRS 31.110(2)(c));
Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43.
8! Ky. REV. STAT. ANN. § 31.220 (West 2011).
& Ky. REV. STAT. ANN. § 31.120 (West 2011).
83 Ky. REV. STAT. ANN. § 31.120(1) (West 2011). However, this does not prevent the appointment of counsel at
an earlier stage if the defendant so requests. Id.
175
payment of an attomey and all other necessary expenses of representation.”™ In making an
indigency determination, the court may consider a number of factors, including the defendant’s
income, property ownership, number and age of the defendant's dependants, and other
circumstances relating to the defendant's financial status and complexity of the case."° The court
will determine whether the defendant qualifies as indigent at “each step of the proceedings.”
Additionally, the defendant must subscribe and swear to an Affidavit of Indigency.®” If the
circuit court finds the defendant indigent, it must appoint counsel unless the defendant waives
his/her right to counsel.** In practice, Kentucky uses “pretrial services or probation officers to
screen clients for indigency” in addition to the court's role in determining indigency.”°
Furthermore, where DPA is unable or “fails to provide an attorney to a person eligible for
representation” under Chapter 31, the court possesses the “inherent authority” to appoint an
attorney to provide representation.”
Courts in the Commonwealth generally appoint DPA to represent a capital defendant at trial, on
direct appeal, and in post-conviction proceedings, although Metro Defender will be appointed to
trial and appellate cases arising out of Jefferson County.” However, DPA handles most capital
post-conviction proceedings, regardless of where the case arises.°? In any case, DPA or Metro
Defender may assign a substitute attorney for good cause, at any stage of the proceeding.”
At the post-conviction level, an indigent death row inmate is entitled to counsel only if a court
determines, based on the inmate’s Criminal Procedure Rule (RCr) 11.42 motion for post-
conviction relief and the Commonwealth’s answer to that motion, that “there is a material issue
of fact that cannot be determined on the face of the record.”™ If a hearing is granted, and the
defendant makes a specific request for counsel in writing, the court will make a determination of
the defendant's indigency. °° If the defendant is indigent, then counsel must be appointed for the
remainder of the proceeding, including appeal of the post-conviction decision.” However, DPA
policy requires that two public defenders represent a Commonwealth death row inmate during all
state post-conviction proceedings, including the filing of the initial RCr 11.42 petition.°”
Ky. REV. STAT. ANN. § 31.100(3)(a) (West 2011).
8 Ky. REV. STAT. ANN. § 31.120(2) (West 2011).
8 Ky. REV. STAT. ANN. § 31.120(1) (West 2011).
87 Ky. REV. STAT. ANN. § 31.120(3) (West 2011).
8 Ky. REV. STAT. ANN. § 31.140 (West 2011).
BJS REPORT, supra note 6, at 6.
® Ky. REV. STAT. ANN. § 31.235 (West 2011).
*! Ky. REV. STAT. ANN. §§ 31.010, 31.030(1) (West 2011); Interview with DPA, supra note 12.
See DPA 2010 ANNUAL REPORT, supra note 25, at 10 (noting that DPA’s Post-Conviction Branch represented
thirty-two of the Commonwealth’ s thirty-five inmates on death row at the close of 2010).
% Ky. REV. STAT. ANN. § 31.030(12) (West 2011).
Ky. R. CRIM. P. 11.42(5).
8 Id.
9° Id.; Fraser v. Commonwealth, 59 S.W.3d 448, 456 (Ky. 2001).
Ky. Dep’T OF PuB. ADVOCACY, POLICIES AND PROCEDURES, Qualification and Compensation of Counsel in
Contract Capital Cases § 17.20(I)(C) (revised Jan. 1, 2008) (“Two Attomeys shall be assigned to all Death Penalty
Cases.”) [hereinafter DPA PoLicigs].
176
2. Qualifications and Training of Capital Counsel
All counsel in criminal cases in the Commonwealth must be attorneys admitted to practice
pursuant to the Kentucky Supreme Court Rules.” In addition, the Kentucky Supreme Court
requires all licensed attorneys to participate in a minimum of twelve and a half hours of approved
continuing legal education (CLE) every year, at least two of which must include instruction on
ethics and professional responsibility.*
While Kentucky has not promulgated or adopted any rules, procedures, or guidelines on the
qualification standards for defense attorneys appointed to capital cases in the Commonwealth,
DPA has adopted, by reference, and has promulgated its own qualification standards based upon
the ABA Standards for Criminal Justice and the ABA Revised Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty Cases.’ The Metro Defender also seeks
to ensure that its attorneys have extensive capital litigation experience prior to appointment in a
capital case.'°' DPA policies and the gualifications of Metro Defender attomeys are discussed in
further detail in the Analysis Section.”
Apart from the CLE requirements for all attorneys in the Commonwealth, Kentucky has not
promulgated rules, regulations, or requirements relating to the training of defense attomeys who
represent capital defendants and death row inmates.'°? However, DPA and the Metro Defender
require extensive training for all staff attorneys who handle capital cases, and provide in-house
courses, seminars, and training programs to its attorneys, investigators, paralegals, mitigation
specialists, and other members of the defense team, as well as contract conflict counsel
representing a capital defendant or death row inmate.’ Furthermore, DPA requires its contract
conflict counsel to attend and fully participate in capital defense trainings as approved by the
Director or Manager of the appropriate DPA Division. DPA also cosponsors criminal defense
and capital litigation CLE courses, litigation institutes, seminars, and conferences that are
available to all criminal defense attorneys, including DPA’s contract conflict counsel.’”
% SCR 2.022 (Admission by Bar Examination), 2.110 (Reciprocity Admission), 2.112 (Participants in Defender or
Legal Services); DPA POLICIES, supra note 97, at §§ 17.22(I), 4.22, 8.04(1)(C)(1).
5°" SCR 3.661. Within twelve months of being swom into the Kentucky Bar, attomeys are required to participate
in the New Lawyer Skills Program, which provides twelve and a half hours of CLE credit. SCR 3.652 (exempting
attorneys who have been admitted to practice in another jurisdiction for at least five years).
100 See DPA POLICIES, supra note 97, at § 8.04(a); DPA POLICIES, supra note 97, at § 17.21(1) (noting that DPA is
“committed to providing the highest quality representation” to every Commonwealth indigent client); ABA, ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 HOFsTRA L. REV.
913, 984-85 (2003) [hereinafter ABA Guidelines].
101 Interview by Sarah Turberville and Paula Shapiro with Daniel T. Goyette, Chief Public Defender, Louisville
Metro Public Defender’s Office, Oct. 12, 2010 (on file with author).
102 See supra notes 211-231 and accompanying text
103 See supra notes 98-99 and accompanying text.
14 DPA PoLicigs, supra note 97, at § 4.22(III)(A)(2)(h); DPA PoLicrgs, supra note 97, at § 4.22(III)(B)(2)(h);
DPA POLICIES, supra note 97, at § 4.22(III)(C)(3)(c); DPA PoLicigs, supra note 97, at § 12.21; DPA POLICIES, supra
note 97, at § 12.22; DPA POLICIES, supra note 97, at § 12.04; DPA POLICIES, supra note 97, at § 12.19(VII).
105 DPA POLICIES, supra note 97, at § 8.04(I)(D)(3); BJS REPORT, supra note 6, at 17.
16 Education Calendar 2010, Ky. Dep’T oF Pus. ADVocacy, http://dpa.ky.gov/ed/ecal.htm (last visited Oct. 27,
2010).
177
The Metro Defender has not adopted any formal written policies requiring its staff attomeys or
contract conflict counsel to undergo any training prior to taking a capital case.!’ In practice, the
however, the Metro Defender’s capital defense attorneys are not assigned to the capital trial
division or assigned capital cases until they have received death penalty training.’ In addition
to undergoing in-house training, Metro Defender attorneys also may participate in DPA-
sponsored trainings, and may attend national capital defense workshops.' Training on capital
cases is discussed in further detail in the Analysis Section.
3. Compensation of Counsel
a. DPA and the Metro Defender
Compensation of the Commonwealth's Public Advocate is governed by KRS 64.640 relating to
the compensation of state officers and employees appointed by the Governor.'!° The over 300
assistant public advocates are paid in accordance with the merit system.'!' Private conflict
counsel contracted by DPA or the Metro Defender to provide capital representation are
compensated at an hourly rate, up to a maximum cap, which is paid out of the contracting
agency’ s operating budget.
As of June 2010, an entry-level assistant public advocate at DPA, known as a Staff Attomey I,
receives a starting salary of $38,800, with a five percent increase after six months and a ten
percent increase after a year of employment.!!° After one year of employment, assistant public
advocates must apply for an increase in salary, which is awarded based on merit.!!* The annual
salary of an assistant public advocate with five or less years of experience ranges from $46,900
to $60,000; an assistant public advocate with six or more years of experience receives an annual
salary between $51,600 and $60,000."
A capital defense attorney at DPA typically falls under the category of Staff Attorney III, which
is “an in-grade promotion [that] can only occur when a Staff Attorney II assumes the
representation of capital clients as a material and permanent change in their duties” and meets
107 Interview with Daniel T. Goyette, supra note 101 and accompanying text.
108 Interview with Daniel T. Goyette, supra note 101 and accompanying text.
109 Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43; Interview with Daniel T.
Goyette, supra note 101; see also supra notes 408-412, 414, 424-432 and accompanying text. In addition to its
policies requiring continuing legal education and annual attorney performance reviews, DPA provides professional
development training in the following areas, among others: death penalty trial defense, juvenile delinquency, trial
skills, appellate cases, mental illness cases. BJS REPORT, supra note 6, at 17; Interview with DPA, supra note 12.
0 Ky. REV. STAT. ANN. § 31.020 (West 2011) (“The compensation of the Public Advocate shall be set by the
provisions of KRS 64.640.”); Ky. REV. STAT. ANN. § 64.640 (West 2011).
‘Ky, Rev. STAT. ANN. § 31.020(4) (West 2011); Petition for Declaratory Judgment, Lewis v. Hollenbach,
Franklin Circuit Court Division II, Civil Action No. 08-C1-1094, at *6 (filed June 30, 2008).
12 Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43.
us BJS REPORT, supra note 6, at 18; Interview with DPA, supra note 12. Kentucky reported an entry-level
maximum salary of $51,400. BJS REPoRT, supra note 6, at 18.
ue Interview with DPA, supra note 12.
15 BJS REPORT, supra note 6, at 19.
178
specific minimum performance requirements.''° Compensation rates for DPA capital defenders
range from $51,600 for an attorney with eight years experience and less than one year experience
in capital trial work to $82,680 for the Staff Attorney Supervisor with over thirty-five years
experience as an attomey and over twelve years experience in the Capital Trial Branch."!”
The Metro Defender’s starting salary for entry-level public defenders is $38,770.'°
Compensation in the Metro Defender’s Capital Trial Division ranges from $56,000 to $90,000,
depending upon the experience of counsel.'’°
b. Contract Conflict Counsel
As of November 2011, conflict counsel contracting with DPA to provide capital representation at
trial, on direct appeal, or during post-conviction proceedings are compensated at a rate of $75 per
hour for in-court and out-of-court work, with a maximum fee of $30,000 per attorney, plus
reasonable expenses.'”? Contract conflict trial counsel seeking a waiver of the $30,000
maximum fee must submit a written request, including a justification of the waiver, prior to
reaching $25,000 expended.’*! Contracts negotiated for post-conviction counsel after July 1,
2005 are permitted a maximum fee of $50,000 per case with the same hourly rate, plus
reasonable expenses. !2”
The DPA Post Trial Division Director and prospective conflict counsel will negotiate and agree
on reasonable contract terms for any successive post-conviction action.'> Additionally, if DPA
contracts with outside counsel to file a writ of certiorari to the U.S. Supreme Court, each counsel
is compensated at a rate of $75 per hour, with a maximum fee of $1,250. 124 Tn the event that the
writ is granted, contract counsel and DPA “will renegotiate the terms of the contract and come to
a mutual agreement on payment.” !”°
At the same time, conflict counsel contracting with the Metro Defender to provide capital
representation are compensated at a rate of $50 per hour, with a maximum fee of $15,000 per
attorney for each stage of the capital proceedings. 7°
6 See DPA POLICIES, supra note 12, at § 4.22(III)(C). Qualifications of capital defense attomeys will be
discussed in further detail in the Analysis section. See supra notes 211-231 and accompanying text.
7 Ky. Dep’T OF Pus. ADVOCACY, Compensation of Capital Trial Branch, June 30, 2010 (on file with author). For
more discussion on compensation of capital public defenders, see Analysis Section, Recommendation #4, supra
notes 311-402 and accompanying text.
a Interview with Daniel T. Goyette, supra note 101.
Id.
DPA POLICIES, supra note 97, at §§ 8.04(II)(A)(1), 8.04(I1)(B)(2)(a), 8.04(11)(B)(1)(a)-(b). All motions,
pleadings, writs or other post-conviction or new trial motions filed at the state circuit court level designed to bring
relief to the capital post-conviction client in that forum, shall be deemed to be one action for purposes of this
$30,000 limit. DPA PoLiclgs, supra note 97, at § 8.04(II)(B)(2)(b).
121 DPA POLICIES, supra note 97, at § 8.04(II)(A)(4).
122 DPA POLICIES, supra note 97, at § 8.04(II)(B)(1)(b).
123 DPA POLICIES, supra note 97, at § 8.04(II)(B)(2)(b).
)(A)(c)
ia DPA POLICIES, supra note 97, at § 8.04(II)(B)(1)(c).
> Id.
126 Petition for Declaratory Judgment, Lewis v. Hollenbach, Franklin Circuit Court Division II, Civil Action No.
08-CI-1094, at *11 (filed Jun. 30, 2008); Interview with Metro Defender, supra note 43 (in 2005, the Metro
Defender raised the fee paid to conflict counsel to $15,000 to bring it on par with the amount DPA paid its conflict
179
In the event that DPA or the Metro Defender fail to appoint contract conflict counsel, pursuant to
KRS 31.235 the circuit court may appoint a private counsel to undertake representation and DPA
must pay the appointed attomey a fee that is not “in excess of the prevailing maximum fee per
attorney paid by the Department of Public Advocacy for the type of representation provided, and
no hourly rate shall be paid in excess of” DPA’s prevailing hourly rate.’?” The attorney is
entitled to be “compensated for his[/her] services with regard to the complexity of the issues, the
time involved, and other relevant considerations.” 7°
4. Resources
DPA and the Metro Defender general revenue budgets must support employment of staff
investigators, mitigation specialists, and social workers.'?7 In 2010, DPA hired a second
investigator for the CTB, which historically employed a single investigator to assist the CTB’s
approximately twelve to sixteen capital cases each year.'*° Capital cases handled by DPA’s
regional trial branches are supported by staff investigators from those branches.’ As of 2010,
DPA employed two mitigation specialists designated to assist all of DPA’s CTB and one
mitigation specialist designated to assist DPA’s Post Trial Division in the representation of the
Commonwealth’ s death row inmates.”
The Metro Defender employs one investigator and one mitigation specialist for its entire Capital
Trial Division, which handles approximately twenty-five capital cases each year.!*°
Capital defense attomeys within the Commonwealth may be provided with additional funding
and resources for the presentation of a defense.'** The KRS provides that an indigent capital
defendant in Kentucky is entitled “to be provided with the necessary services and facilities of
representation including investigation and other preparation’’*® and “to use the same state
attorneys at that time). DPA has since increased its compensation rate for contract conflict counsel; the Metro
Defender has not. Interview with Metro Defender, supra note 43; Interview with Daniel T. Goyette, supra note 101.
U7" Ky. REV. STAT. ANN. § 31.235(1) (West 2011).
“8. Ky. REV. STAT. ANN. § 31.071(4) (West 2011).
129 Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43. In 2007, Kentucky’s public
defender agencies reported total full-time support staff of 172, including forty-six investigators, ten social workers,
six paralegals, forty-six administrative staff members, fifty clerical staff, twelve interns, and two others. BJS
REPORT, supra note 6, at 15 (noting that the other category “[iJncludes human resources staff, forensic specialists,
clinical psychologists, information technology specialists, interpreters, and investigators hired on a contractual
basis”). For an in depth discussion of the use of KRS 31.185 and DPA’s use of expert services, see Analysis
Section, Recommendation 1.
130 Interview with DPA, supra note 12.
131 Id.
132 14.; Interview with Tom Griffiths, supra note 24.
133 Interview with Metro Defender, supra note 43. Both Metro Defender and DPA have stated that when
necessary, investigators and/or social workers are borrowed from their other divisions in order to keep up with
increasing caseloads. Id.; Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43.
St Ky, REV. STAT. ANN. §§ 31.110; 31.130, 31.185(1) (West 2011); Binion v. Commonwealth, 891 S.W.2d 383,
385 (Ky. 1995); Interview with DPA, supra note 12. “Expenses” under Chapter 31 “includes the expenses of
investigation, other preparation, and trial, together with the expenses of any appeal.” Id. at § 31.100(2).
185 Ky. REV. STAT. ANN. § 31.110(1)(b) (West 2011). See also id. § 31.110(2)(a)-(c) (“a needy person is entitled
to...be counseled and defended at all stages of the matter... and [] to be represented in any appeal... to be
180
facilities for the evaluation of evidence as are available to the attorney representing the
Commonwealth.”!*° During post-conviction proceedings, an indigent death row petitioner “may
be entitled to state funds for the procurement of expert testimony upon a showing that such
witness is reasonably necessary for a full presentation of the petitioner’s case.” !°”
However, a defendant has no “right” to hire an expert of his/her own choosing at state
expense. Instead, s/he first must demonstrate that use of state facilities is impractical, 138
demonstrate that private expert assistance is “reasonably necessary,”'“° and describe the specific
information the expert would provide,'*! Defense counsel is permitted to make an ex parte
request to the trial or post-conviction court for public funds for resources and experts.!“? There
is no statutory maximum on the funding defense counsel can request under KRS 31.185,
although the amount authorized for an expert is not to “exceed the established rate charged by
the Commonwealth and its agencies.”
C. Appointment, Qualifications, and Compensation of and Resources Available to Defense
Counsel Handling Capital Federal Habeas Corpus Petitions
Generally, staff attomeys from DPA or the Metro Defender represent the Commonwealth’ s death
row inmates in federal habeas corpus proceedings.'“* This representation is authorized by the
KRS, which permits DPA to represent an indigent capital defendant in federal habeas corpus
proceedings, if “(1): [t]he matter arises out of or is related to an action pending or recently
represented in any other post-conviction” proceeding); Y oung v. Commonwealth, 585 S.W.2d 378, 379 (Ky. 1979);
Hicks v. Commonwealth, 670 S.W.2d 837, 838 (Ky. 1984).
88 Ky. REV. STAT. ANN. § 31.185(1) (West 2011).
137 Mills v. Messer, 268 S.W.3d 366, 367 (Ky. 2008) (noting that the “trial court still maintains the discretion to
deny such funds if it determines that the expert testimony is not reasonably necessary”); Hodge v. Coleman, 244
S.W.3d 102, 108 (Ky. 2008) (overruling Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005)) (entitling indigent post-
conviction petitioners to receive funds under KRS 31.185).
138 Crawford v. Commonwealth, 824 S.W.2d 847, 850 (Ky. 1992) (noting that Ake did not support the proposition
that an indigent defendant had the right to choose a psychiatrist or receive funds to hire one of his choosing);
Commonwealth v. Paisley, 201 S.W.3d 34, 35, 56 (2006) (holding that “it was an abuse of discretion for the trial
court to order the Finance and Administration Cabinet to pay up to $5,000 for a private psychologist without the
requisite showing that the use of state facilities was somehow impractical.”).
8" Ky. REV. STAT. ANN. § 31.185(1) (West 2011).
“40 Young, 585 S.W.2d at 379; Hicks, 670 S.W.2d at 838.
41 Benjamin v. Commonwealth, 266 S.W.3d 775, 789 (Ky. 2008). A court need not authorize funding for expert
assistance if the defendant “offers little more than an undeveloped assertion that the requested assistance would be
beneficial.” Young, 585 S.W.2d at 379; see also Hicks, 670 S.W.2d at 838 (“[T]rial courts are not required to
provide funds to defense experts for fishing expeditions.”).
© Ky. REV. STAT. ANN. § 31.185(2) (West 2011).
M3" Ky. REV. STAT. ANN. § 31.185(3) (West 2011) (providing funding for “any direct expense, including the cost of
a transcript or bystander’s bill of exceptions or other substitute for a transcript that is necessarily incurred in
representing a needy person.”).
4" Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43. The Westem Kentucky
Federal Community Defender, located in Louisville, provides representation in the U.S. District Court for the
Westem District of Kentucky, but is not appointed to capital habeas cases resulting from a state court death
sentence. Telephone Interview by Paula Shapiro with Kate Micou, Western Ky. Federal Community Defender, July
27, 2010 (on file with author). There is no federal defender in the Eastem District of Kentucky. OFFICE OF
DEFENDER SERVS., FED. PuB. & CMTY. DEFENDER DIRECTORY 7 (Sept. 13, 2010), available at
http://infoweb.ao.dcn/defenderdir.pdf.
181
pending in a court of criminal jurisdiction of the state; or (2) [rlepresentation is under a plan of
the [U.S.] District Court as required by the Criminal Justice Act of 1964 (18 USC 3006A).”"“
Pursuant to 18 U.S.C. § 3599, an inmate under a death sentence imposed by a state court
petitioning for federal habeas corpus in one of Kentucky’s two federal judicial districts— Eastem
and Western—is entitled to appointed counsel and other resources, if s/he “is or becomes
financially unable to obtain adequate representation or investigative, expert, or other reasonably
necessary services.” !*°
An inmate entitled to appointed counsel under section 3599 must be appointed “one or more”
qualified attorneys prior to the filing of a formal, legally sufficient federal habeas petition.” To
qualify for appointment, at least one attorney must have been admitted to practice in the U.S.
Court of Appeals for the Sixth Circuit for at least five years, and have had at least three years of
experience in handling felony appeals in the Sixth Circuit.“® For good cause, the court may
appoint another attorney “whose background, knowledge, or experience would otherwise enable
him or her to properly represent the defendant, with due consideration to the seriousness of the
possible penalty and to the unique and complex nature of the litigation.” '“°
Attomeys appointed pursuant to section 3599 are entitled to compensation at a rate of not more
than $178 per hour for both in-court and out-of-court work.’ There is no compensation
maximum for appointed counsel for federal habeas corpus proceedings in capital cases.’*! In
addition to counsel, the court also may authorize a death row inmate’s attomey to obtain
investigative, expert, or other services as are reasonably necessary for representation.'°? The
fees and expenses paid for these services may not exceed $7,500 in any case, unless the court
authorizes payment in excess of this limit.°* If DPA undertakes representation of a death row
inmate in a federal habeas corpus proceeding, the Department will be compensated in accordance
with the fee structure set out in section 3599.
D. Appointment and Qualifications of Attorneys Representing Death Row Clemency
Petitioners
In 2009, the U.S. Supreme Court clarified that 18 U.S.C. § 3599 permits, but does not require,
“federally appointed counsel to represent their clients in state clemency proceedings and entitles
MS Ky. REV. STAT. ANN. § 31.220 (West 2011).
Me 18 U.S.C. § 3599(a)(2) (2010).
\47 Td.; see also McFarland v. Scott, 512 U.S. 849, 856-57 (1994).
M8 18 U.S.C. § 3599(c) (2010).
M8 18 U.S.C. § 3599(d) (2010).
150 18 U.S.C. § 3599(g)(1) (2010); see also 7 U.S. GUIDELINES FOR ADMINISTERING THE CJA AND RELATED
STATUTES 6A, § 610.10.10 Federal Death Penalty and Capital Habeas Corpus Representations, Hourly Rates
(2010), available at http://www.uscourts.gov/uscourts/FederalC ourts/A ppointmentO fC ounsel/vol7/V 0l07A -
Ch06.pdf [hereinafter U.S. GUIDELINES FOR ADMINISTERING THE CJA].
151 US, GUIDELINES FOR ADMINISTERING THE CJA, supra note 150, at § 610.10.20.
a 18 U.S.C. § 3599(g)(2) (2010).
Id.
154 Interview by Paula Shapiro with Tim Amold, Post Trial Division Director, Ky. Dep’t of Pub. Advocacy, Nov.
5, 2010 (on file with author).
182
them to compensation for that representation.”'*° The federal Code also provides a death row
inmate the right to funds for “investigative, expert, or other services upon a showing they are
reasonably necessary for the representation of the defendant.” ®°
While Kentucky has not promulgated any rules, regulations, laws, or procedures that require
courts to appoint counsel to death row inmates petitioning for clemency, both DPA and the
Metro Defender provide representation to their clients through clemency and execution.'®”
DPA’s Post Trial Division Minimum Performance Standards includes specific requirements
relating to the performance of DPA attorneys providing representation during clemency, and is
discussed in greater detail in the Analysis Section.
155 18 U.S.C. § 3599(e); Harbison v. Bell, 129 S. Ct. 1481, 1491 (2009) (stating that the petitioner’s “case
underscores why it is ‘entirely plausible that Congress did not want condemned men and women to be abandoned by
their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail
cells’”) (citing Hain v. Mullin, 436 F.3d 1168 (10th Cir. 2006) (en banc)).
156 18 U.S.C. § 3599(f); see also Baze v. Parker, 711 F.Supp.2d 744, 778-79 (E.D. Ky. 2011).
‘57 DPA POLICIES, supra note 97, at §§ 18.01(E)(5)-(7), 18.09 (Execution Protocol).
‘58 Interview with DPA, supra note 12 and accompanying text. If such counsel is unable to represent the inmate at
clemency proceedings, another attomey from DPA will “take appropriate steps to ensure that clemency is sought in
as timely and persuasive a manner as possible.” DPA POLICIES, supra note 97, at § 18.01(E)(7).
183
II, ANALYSIS
A. Recommendation #1
In order to ensure high quality legal representation for all individuals facing the
death penalty, each death penalty jurisdiction should guarantee qualified and
properly compensated counsel at every stage of the legal proceedings- pretrial
(including arraignment and plea bargaining), trial, direct appeal, all certiorari
petitions, state post-conviction and federal habeas corpus, and clemency
proceedings. Counsel should be appointed as quickly as possible prior to any
proceedings. At minimum, satisfying this standard requires the following (as
articulated in Guideline 4.1 of the ABA Guidelines on the Appointment and
Performance of Defense C ounsel in Death Penalty Cases):
a. At least two attorneys at every stage of the proceedings qualified in
accordance with ABA Guidelines for the Appointment and Performance of
Defense C ounsel in Death Penalty Cases, Guideline 5.1 (reproduced below as
Recommendation #2), an investigator, and a mitigation specialist.
While the Commonwealth of Kentucky and federal law guarantees capital defendants counsel
during pre-trial, trial, direct appeal, and, if certain conditions are met, post-conviction
proceedings, ©’ the Commonwealth has not adopted any standards governing the qualifications
or compensation required of counsel in capital cases, nor does it guarantee that two attorneys, an
investigator, and a mitigation specialist be assigned to the defense.
However, when an indigent defendant charged with a capital-eligible offense is represented by
the Kentucky Department of Advocacy (DPA) or the Louisville Metro Public Defender’s Office
(Metro Defender), each agenc ncy strives to assign two attorneys who are qualified to undertake
death penalty representation.’ If no attomey within DPA or the Metro Defender is available to
provide representation, it is each agency’s policy to contract with two private conflict, counsel to
ensure representation for every indigent capital defendant within the Commonwealth.’ On the
rare occasion when DPA or the Metro Defender are unable or fail “to provide an attorney to a
159 Ky. REV. STAT. ANN. §§ 31.110(2) (indigents are “entitled to be counseled and defended at all stages of the
matter beginning with the earliest time when a person providing his own counsel would be entitled to be represented
by an attomey . . . to be represented in any appeal; and to be represented in any other post-conviction . . . proceeding
that the attomey and the needy person considers appropriate”), 31.219(1) (“It shall be the duty of the attommey
representing a client under any public advocacy plan to perfect an appeal if his[/her] client requests an appeal.”),
31.220 (West 2011) (permitting a public advocacy attomey to provide representation to his/her client in federal court
if the case “arises out of or is related to an action pending or recently pending in a [Kentucky] court of criminal
jurisdiction”); see generally Ky. R. CRIM. P. 11.42 on post-conviction procedures. This Recommendation does not
call for physical presence of the entire defense team at every stage of the proceedings.
160 DPA POLICIES, supra note 97, at § 17.20(1)(C) (“Two Attomeys shall be assigned to all Death Penalty Cases.”);
Ky. REV. STAT. ANN. § 31.110(2)(a) (West 2011); Interview with Metro Defender, supra note 43. DPA will assign
either two attorneys from its CTB, two regional trial branch attomeys who are capital- qualified, or, in rare cases, one
attorney from each branch. Interview with DPA, supra note 12. The Metro Defender will assign two capital-
qualified attomeys from its Capital Trial Division. Interview with Metro Defender, supra note 43.
181 DPA POLICIES, supra note 97, at §§ 8.04 (Qualification and Compensation of Counsel in Contract Capital
Cases), 17.20(I)(C). DPA and Metro Defender staff attomeys provide the majority of the representation of indigent
defendants in Kentucky; approximately 2,800 out of more than 148,000 capital and non-capital cases utilized private
lawyers, mostly in conflict of interest situations. DPA SERVICE PLAN, supra note 63, at 12.
184
person eligible for representation,” the court possesses the “inherent authority” to appoint an
attorney to provide representation. '
While death row inmates are entitled to counsel during post-conviction proceedings only after an
evidentiary hearing is ordered,‘®’ DPA or the Metro Defender regularly assign two attomeys to
each of the Commonwealth's death row inmates prior to the commencement of post-conviction
proceedings, and the attorneys continue to provide representation through any petitions for
certiorari." Under federal law, an indigent death row inmate in Kentucky is entitled to one
attorney through federal habeas corpus proceedings, and that attorney is authorized to continue
his/her representation through clemency proceedings.’ DPA and the Metro Defender also
provide representation during clemency proceedings; however, assignment of counsel at this
stage of the proceedings is not required by the Commonwealth.
Indigent defendants and death row inmates receiving representation through DPA or the Metro
Defender have access to the representing agency’s staff investigators and mitigation
specialists. 167 However, DPA has limited the number of hours for which non-attomey members
of the defense team may be paid, thereby restricting access to investigative and mitigation
assistance.!° DPA and Metro Defender staff attomeys also may request funding under KRS
31.185 to obtain independent investigative or mitigation assistance; although, DPA has had some
difficulty obtaining funding from the courts for mitigation assistance at the capital trial level.’
Court-appointed attorneys and attorneys contracted by DPA or the Metro Defender to undertake
representation in a capital case do not have access to DPA or Metro Defender staff investigators
or mitigation specialists; instead, they must request funding for expert and investigative
assistance from the courts under KRS 31.185.! The Commonwealth does not require the
assignment of two attorneys, an investigator, and a mitigation specialist for all capital defendants
and death row inmates.
‘Ky. REV. STAT. ANN. § 31.235(1) (West 2011).
‘63 An indigent death row inmate is entitled to appointed counsel only if a court determines, based on the inmate’s
Rule 11.42 motion for post-conviction relief and the Commonwealth’s answer to that motion, that “there is a
material issue of fact that cannot be determined on the face of the record.” Ky. R. CRIM. P. 11.42(5). If a hearing is
granted, and the defendant makes a specific request for counsel in writing, the court will make a determination of the
defendant's indigency. Id. If the defendant is indigent, then counsel must be appointed for the remainder of the
proceeding, including appeal of the post-conviction decision. Id.
‘64 DPA POLICIES, supra note 97, at § 17.20(1)(C). In most instances, DPA will provide representation during post-
conviction proceedings to death row inmates represented by the Metro Defender at trial. Interview with Metro
Defender, supra note 43 (currently representing two death row inmates); Interview with DPA, supra note 12.
"See 18 U.S.C. § 3599(a)(2) (2010); McFarland v. Scott, 512 U.S. 849, 856-57 (1994); Harbison v. Bell, 129
S.Ct. 1481, 1486 (2009).
166 DPA POLICIES, supra note 97, at § 17.20(I)(C); Interview with DPA, supra note 12; Interview with Daniel T.
Goyette, supra note 101.
167" Interview with DPA, supra note 12; Interview with Metro Defender, supra note43.
168 Email to Sarah Turberville & Paula Shapiro from Tom Griffiths, Capital Trial Branch Manager, Ky. Dep’t of
Pub. Advocacy, Sept. 10, 2011 (on file with author) (stating work hours over 37.5 per week will not be
compensated).
169 Td.; see also supra notes 134-143 and accompanying text.
17 Ky. Rev. STAT. ANN. § 31.185 (West 2011); Interview with DPA, supra note 12; Interview with Metro
Defender, supra note 43.
185
b. At least one member of the defense should be qualified by training and
experience to screen individuals for the presence of mental or psychological
disorders or impairments. Investigators and experts should not be chosen
on the basis of cost of services, prior work for the prosecution, or
professional status with the state.
The Commonwealth does not require that counsel or other members of the capital defense team
be qualified by training and experience to screen individuals for the presence of mental or
psychological disorders or impairments.
Nonetheless, pursuant to DPA policy, all DPA staff attorneys, capital contract conflict counsel,
and other staff members of the capital defense team are required to undergo training that includes
education on the Commonwealth and federal laws regarding mental and psychological disorders
in capital cases and impairments in capital clients.!’! The Metro Defender also strives to ensure
that its staff public defenders are trained on mental health-related legal issues in capital
representation.’”” However, neither DPA nor the Metro Defender training includes educating
staff attomeys and contract counsel on screening for the presence of mental or psychological
disorders or impairments.’ Despite this failure to ensure such training, indigent capital
defendants and death row inmates represented by DPA and Metro Defender attorneys are
routinely screened for mental or psychological disorders and impairments at the outset of
representation by outside mental health experts.!”
DPA and Metro Defender mitigation specialists, investigators, and experts are selected based
upon their qualifications, rather than on the basis of cost of services, prior work for the
prosecution, or professional status with the state. 5 However, budget constraints have affected
the use of mitigation specialists and investigators during preparation for capital cases.'”
The Assessment Team was unable to determine whether capital defendants represented by
privately-retained or court-appointed counsel are screened by qualified individuals for the
presence of such disorders. Additionally, we were also unable to determine the basis for which
privately-retained counsel or court-appointed counsel employ investigators and other experts.
c. A plan for defense counsel to receive the assistance of all expert,
investigative, and other ancillary professional services reasonably necessary
1 DPA POLICIES, supra note 97, at §§ 8.04(I)(C)(3)(j)-(1), 12.04.
2 Interview with Daniel T. Goyette, supra note 101.
Interview with Tom Griffiths, supra note 24; Telephone Interview by Paula Shapiro with Glenn McClister,
Education and Strategic Planning Branch, Ky. Dep’t of Pub. Advocacy, Oct. 18, 2010 (on file with author);
Interview with Daniel T. Goyette, supra note 101. However, it is the Metro Defender’s “standard practice to get a
mental health professional involved in death penalty cases immediately for purposes of evaluation of the client’s
competency to stand trial, assessment of criminal responsibility, and development of potential mitigation evidence.”
Interview with Daniel T. Goyette, supra note 101. The Metro Defender routinely uses KRS 31.185 to accomplish
this evaluation. Id.
1 Interview with Daniel T. Goyette, supra note 101; Interview with Glenn McClister, supra note 173. For more
information on mental health related issues in capital defense, please see Chapter Thirteen.
‘5 Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43; infra Chapter Thirteen on
Mental Illness and Mental Retardation.
176 Email from Tom Griffiths, supra note 168.
186
or appropriate to provide high quality legal representation at every stage of
the proceedings. The plan should specifically ensure provision of such
services to private attorneys whose clients are financially unable to afford
them.
i. Counsel should have the right to seek such services through ex parte
proceedings, thereby protecting confidential client information.
ii. Counsel should have the right to have such services provided by persons
independent of the government.
iii. Counsel should have the right to protect the confidentiality of
communications with the persons providing such services to the same
extent as would counsel paying such persons from private funds.
Counsel for indigent defendants and death row inmates may seek the assistance of all expert,
investigative, and other ancillary professional services reasonably necessary or appropriate to
provide high guality legal representation at every stage of the proceedings through ex parte
proceedings.!”” Counsel also may hire experts and investigators who are independent of the
Commonwealth.!”
Investigators and Mitigation Specialists
DPA employs staff investigators, mitigation specialists, paralegals, and social workers to assist
in indigent representation. 79 Until 2010, DPA’s Capital Trial Branch (CTB) had only one
investigator with a caseload of approximately fifteen active cases, many of which required
statewide travel.!®° With the recent addition of a second CTB investigator, each investigator
now maintains projected caseloads of approximately eight to twelve active investigations,
although recently DPA has sought to cap the number of cases for non-attorneys at ten cases
maximum per person.'®! Capital cases handled by DPA’s regional trial branches are supported
by staff investigators from the thirty regional trial offices, most of which employ only one
investigator to assist regional trial branch attorneys who represent 400 to 600 cases each year. '®
DPA also employs two mitigation specialists to assist all of CTB, and who have, on average,
eight to twelve active capital cases at any given time.'*’ DPA also employs one mitigation
“T Ky. REV. STAT. ANN. § 31.185(2) (West 2011).
"8 Ky, REV. STAT. ANN. § 31.185 (West 2011).
1 Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43. According to the U.S.
Department of Justice’s Bureau of Justice Statistics, in 2007, Kentucky's public defender agencies reported total
full-time support staff of 172, including forty-six investigators, ten social workers, six paralegals, forty-six
administrative staff members, fifty clerical staff, twelve interns, and two others. BJS REPORT, supra note 6, at 15
(noting that the “other” category denotes “human resources staff, forensic specialists, clinical psychologists,
information technology (IT) specialists, interpreters, and investigators hired on a contractual basis.”).
180 Interview with DPA, supra note 12. In September 2008, DPA’s Capital Trial Branch was comprised of twelve
staff members: seven attomeys (all housed within one work unit and a branch manager), two mitigation specialist,
one investigator and two secretaries. As of July 2010, the CTB had seventeen staff members; eleven attorneys
(restructured in August 2009 to create two sections with two supervising attomeys and a branch manager), two
mitigation specialists, two investigators, and two secretaries. Interview with Tom Griffiths, supra note 24.
181 ‘Supra note 130 and accompanying text.
‘8 Interview with DPA, supra note 12. As of October 2010, only six regional trial offices have more than one
investigator: Louisville (Metro Defender), Covington, Paducah, Hopkinsville, Lexington, and Elizabethtown. DPA
SERVICE PLAN, supra note 63, at 10.
‘83 Interview with DPA, supra note 12; Email from Tom Griffiths, supra note 168.
187
specialist to assist the Post Trial Division in the representation of the Commonwealth’s death
row inmates.'** DPA’s 2010 budget request to the Kentucky General Assembly requested
funding to hire an additional twenty-one investigators and forty support staff in order to
“increase the effectiveness and efficiency of DPA’s service to the courts, clients and public.” 185
It appears DPA also has restricted the number of hours for which non-attormey employees,
including investigators and mitigation specialists, may be compensated. DPA supervisors are not
permitted to authorize use of overtime funds for compensation, despite the maintenance of a
caseload (including in death penalty cases) in which overtime compensation was previously
available."®° These financial limitations reduce the ability of capital counsel to receive the
assistance of investigative and other ancillary professional services reasonably necessary or
appropriate to provide high quality legal representation at every stage of the proceedings.
The Metro Defender employs one investigator and one mitigation specialist for its entire Capital
Trial Division, which handles approximately twenty-five capital cases each year.'®’ The Metro
Defender also employs investigators, paralegals, and support staff who are responsible for
assisting Metro Defender attorneys." If caseloads for the Capital Trial Division staff
investigator, paralegals, or mitigation specialist are excessive, the Metro Defender relies on
investigators and paralegals from the A dult or Juvenile Trial Divisions to assist the Capital Trial
Division attomeys.'®° Due to the already excessive caseload assigned to the single mitigation
specialist employed by the Metro Defender, and the lack of funding to hire additional mitigation
specialists, as caseloads increase the Metro Defender is likely to have to apply for funding for
such services through KRS Chapter 31.'%° See below fora discussion of KRS Chapter 31.1°
According to DPA, throughout the public defender system, there “are insufficient numbers of
support staff resulting in the inefficiency and compounding the problem of overworked attorneys
performing support staff functions.”!"* Because of this, staff investigators mainly work on the
“worst cases,” typically capital felony and murder cases, and public defenders are often left to
investigate their other cases.'°? Approximately forty-four DPA regional trial branch attomeys
provide capital representation in addition to carrying caseloads of 300 to 600 non-capital cases;
18 Tnterview with DPA, supra note 12; Interview with Tom Griffiths, supra note 24.
185 DPA SERVICE PLAN, supra note 63, at 10.
186 Email from Tom Griffiths, supra note 168.
in Interview with Metro Defender, supra note 43.
189 ie
190 Id.
191 See supra notes 195-208 and accompanying text.
12 DPA SERVICE PLAN, supra 63, at 10; see also BJS REPORT, supra note 6, at 15; Ky. Pus. ADvocacy CoMM’N,
JusTICE JEOPARDIZED: FINAL REPORT, 19-20 (Sept. 2005), available at
http://apps.dpa.ky .gov/news/J ustice] eopardizedFINA LREPORT.pdf [hereinafter JUSTICE JEOPARDIZED] (where the
Commonwealth's Public Advocacy Commission recommended to the Kentucky General Assembly that additional
funding be given to DPA because “[tJhere is insufficient support for Kentucky’s public defenders. As a result,
public defenders are doing their own typing, filing, and handling of other clerical tasks. This is inefficient, and is
inconsistent with how private lawyers handle their practices”).
183 DPA SERVICE PLAN, supra note 63, at 10.
188
such caseloads plus investigatory responsibilities puts unacceptable strains on already
overburdened defense attorneys. '**
Expert Services under KRS 31.185
Under KRS 31.185, Kentucky’s public defenders, contract counsel, and court-appointed counsel
representing an indigent capital defendant or death row inmate may request funding for expert,
investigative, and other ancillary professional services from the courts.'®? Commonwealth courts
may, in their discretion, authorize funds for expert and investigative services for trial, appellate,
and/or post-conviction proceedings if such services are “reasonably necessary” and the use of
state facilities is “impractical.”!°
Generally, counsel will request preauthorization for expenses from the circuit court which may
place an initial “cap” on funding for expert services, however, the court may grant additional
funding when defense counsel demonstrates its necessity.!°” In lieu of placing a cap on funding,
some Jefferson County trial courts have entered “good faith” orders allowing defense counsel to
use their discretion to spend “reasonable” funds for the provision of expert services, such as
mental health professionals.'%°
At the trial level, contract conflict counsel have successfully petitioned the Commonwealth's
courts to obtain KRS 31.185 funds for expert and investigative services.'®” DPA also has sought
KRS 31.185 funding for ancillary services with varying degrees of success. As of September
194 Id.
"8 Ky, REV. STAT. ANN. §§ 31.185, 31.185(5) (West 2011).
196 Ky, Rev. STAT. ANN. § 31.185 (West 2011); see also infra Chapter Thirteen on Mental Illness and Mental
Retardation. Under KRS 31.185(5), each county within the Commonwealth provides a per capita amount of money
into a special fund for indigent defense expert and investigative resources; however, when this fund is depleted, the
Commonwealth of Kentucky must pay any additional funding requirements granted by the court. Ky. REV. STAT.
ANN. § 31.185(5) (West 2011).
197 Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43.
‘88 Interview with Metro Defender, supra note 43. During federal habeas corpus and clemency proceedings, the
federal courts may authorize and provide funding to contract conflict counsel, as well as public defense attorneys, to
obtain investigative, expert, or other services as are reasonably necessary for representation. 18 U.S.C. § 3599(f)
(2010).
KRS 31.185 Funding A pprovals Per Fiscal Y ear— Capital and Non-C apital Cases
Fiscal Year | Number of payments authorized by the | Total amount authorized to defense counsel
Commonwealth's circuit courts within a fiscal | by the Commonwealth's circuit courts
year under KRS 31.185 in a fiscal year
2000-2001 756 $942,074.20
2001-2002 729 $977,924.19
2002-2003 803 $1,225,013.64
2003-2004 | 830 $1,303,968.40
2004-2005 753 $1,198,132.76
2005-2006 768 $1,184,648.50
Telephone Interview by Paula Shapiro with Justin Perry, Administrative Specialist II, County Fees Systems Branch,
Div. of Local Gov't Services, Office of the Comptroller, Finance & Admin. Cabinet, Oct. 27, 2010 (on file with
author); see also Ky. REV. STAT. ANN. § 234.010 (West 2011). Kentucky’s Division of Local Government Services
does not keep track of the funding provided under KRS 31.185 specifically in capital cases. Id.
199 Email from Ed Monahan, supra note 10.
189
2011, DPA’s staff mitigation specialists were providing assistance in eight capital-eligible trials,
while, due to budget constraints, an additional twelve capital-eligible cases were required to be
contracted to private mitigation specialists under KRS 31.185.°° During capital post-conviction
proceedings, however, DPA has not been successful in using KRS 31.185 as a vehicle to support
additional investigative or mitigation assistance.” The Metro Defender has not utilized KRS
31.185 funding to obtain investigators or mitigation specialists, and instead, as of June 2010, was
continuing to rely on staff resources.” However, due to the Metro Defender’s budget
constraints and increasing caseloads, the Metro Defender asserts that it will eventually need to
utilize KRS 31.185 to support investigative and mitigation assistance in capital cases.””
Because KRS 31.185 funding is for expenses “necessarily incurred in representing a needy
person under this chapter,” it is unclear whether a capital defendant or death row inmate who has
retained private counsel and who is unable to afford expert services is permitted to utilize KRS
31.185 to procure expert and ancillary defense services.”™
The availability of KRS 31.185 funding is limited during post-conviction proceedings. A post-
conviction petitioner only is entitled “to state funds for the procurement of expert testimony upon
a showing that such witness is reasonably necessary for a full presentation of the petitioner's
case,””°> permitting use of KRS 31.185 funding when “the post-conviction petition sets forth
sufficient allegations to necessitate an evidentiary hearing.””° However, even if a post-
conviction petition has met the threshold requirement for an evidentiary hearing, the petitioner is
not automatically entitled to funding; instead, trial courts “have the inherent authority to control
the proceedings before them to eliminate unjustifiable expense and delay.”“°’ It appears death
row inmates have significantly greater difficulty obtaining expert resources during post-
conviction than at trial.“
200 Email from Ed Monahan, supra note 10; DPA states that there have been instances where Kentucky trial courts
have initially refused to provide KRS 31.185 funds or required counsel to justify why staff mitigation specialists are
unable to provide the necessary investigation. Email from Tom Griffiths, supra note 168 (noting that in one case, a
trial judge “rejected a portion of the mitigation expert's bill and this is currently being litigated since the expert may
refuse to work for [DPA] in the future” and in another case, a mitigation expert hired with KRS 31.185 funds
refused to turn over work product prior to trial without additional funding).
201 Email from Ed Monahan, supra note 10.
202 Interview with Metro Defender, supra note 43. However, the Metro Defender frequently uses KRS 31.185 for
expert services, particularly for independent mental health evaluations. Id.
Id.
2 Ky. REV. STAT. ANN. § 31.185(3) (West 2011).
205 Mills v. Messer, 268 S.W.3d 366, 367 (Ky. 2008); Hodge v. Coleman, 244 S.W.3d 102, 108 (Ky. 2008).
206 Hodge v. Coleman, 244 $.W.3d 102, 108 (Ky. 2008), overruling in part Stopher v. Conliffe, 170 S.W.3d 307
(2005) (“it is clear we went too far in Stopher when we said that KRS 31.185 has no application post-conviction
proceedings.”); Mills, 268 S.W.3d at 367.
207 Mills, 268 S.W.3d at 367 (“The trial court still maintains the discretion to deny such funds if it determines that
the expert testimony is not reasonably necessary.”).
208 See, e.g., Hodge v. Coleman, 244 S.W.3d 102, 108 (Ky. 2008); Mills v. Messer, 268 S.W.3d 366, 367 (Ky.
2008); Johnson v. Commonwealth, No. 2006-SC-000548-MR, 2008 WL 4270731, at *7 (Ky. Sept. 18, 2008); Foley
v. Commonwealth, No. 2008-SC-000909-TG, 2010 WL 1005873, at *3 (Ky. Mar. 18, 2010); Interview with DPA,
supra note 12; Interview with Metro Defender, supra note 43. For more information on access to experts, see
Chapter Thirteen on Mental Retardation and Mental Illness. During federal habeas corpus and clemency
proceedings, the federal courts may authorize and provide funding to contract conflict counsel, as well as public
defense attomeys, to obtain investigative, expert, or other services as are reasonably necessary for representation.
18 U.S.C. § 3599(f) (2010).
190
Further, it appears that Kentucky death row inmates have a limited right to have such services
provided by persons independent of the government. The Kentucky Supreme Court recently
required a death row inmate to undergo a mental evaluation by the Commonwealth's psychiatric
institute, holding that because the inmate had been previously convicted, any inquiry by mental
health professionals about the underlying offense does not implicate, or only minimally
implicates, the inmate’s rights to remain silent and “to confidential defense communications.””
Conclusion
The Kentucky Death Penalty Assessment Team applauds the Department of Public Advocacy
and the Louisville Metro Public Defender’s Office for efforts to staff each capital case with two
attomeys, a mitigation specialist, and an investigator. However, because the Commonwealth
does not require adherence to each of the provisions within this recommendation, the
Commonwealth is not in compliance with Recommendation #1.
To ensure high quality legal representation for every capital defendant and death row inmate in
the Commonwealth, Kentucky must
« Guarantee that every capital defendant will be represented by two attorneys and have
access to an investigator and a mitigation specialist at every stage of the legal
proceedings;
« Ensure adequate funding of investigative and other ancillary professional services
reasonably necessary to provide high quality legal representation at every stage of the
proceedings, including compensation of work hours necessary to fully prepare for
each capital case;
¢ Ensure at least one member of the defense team is trained to screen capital clients for
mental and psychological disorders; and
« Ensure KRS 31.185 funding is available to all capital defendants or death row
inmates unable to afford expert and ancillary services, irrespective of whether s/he is
determined indigent and represented by a public defender or privately-retained
counsel.
The Kentucky Supreme Court should also adopt a rule to authorize access to reasonable,
ancillary, and expert services during the claim development stage of a capital post-conviction
case.
B. Recommendation #2
Qualified Counsel (Guideline 5.1 of the ABA Guidelines on the Appointment and
Performance of Defense C ounsel in Death Penalty C ases):
a. The jurisdiction should develop and publish qualification standards for
defense counsel in capital cases. These standards should be construed and
209 White v. Payne, 332 S.W.3d 45, 50 (Ky. 2011). For a detailed discussion of death row inmates’ rights during
post-conviction and during post-conviction evaluations, see Chapters Eight and Thirteen.
191
applied in such a way as to further the overriding goal of providing each
client with high quality legal representation.
b. In formulating qualification standards, the jurisdiction should ensure:
i, That every attorney representing a capital defendant has:
(a) Obtained a license or permission to practice in the jurisdiction;
(b) Demonstrated a commitment to providing zealous advocacy and high
quality legal representation in the defense of capital cases; and
(c) Satisfied the training requirements set forth in Guideline 8.1.7"°
ii. That the pool of defense attorneys as a whole is such that each capital
defendant within the jurisdiction receives high quality legal
representation.
Accordingly, the qualification standards should ensure that the pool includes
sufficient numbers of attorneys who have demonstrated:
(a) Substantial knowledge and understanding of the relevant state, federal and
international law, both procedural and substantive, governing capital
cases;
(b) Skill in the management and conduct of complex negotiations and
litigation;
(©) Skill in legal research, analysis, and the drafting of litigation documents;
(d) Skill in oral advocacy;
(e) Skill in the use of expert witnesses and familiarity with common areas of
forensic investigation, including fingerprints, ballistics, forensic pathology,
and DNA evidence;
(f) Skill in the investigation, preparation, and presentation of evidence bearing
upon mental status;
(g) Skill in the investigation, preparation, and presentation of mitigating
evidence; and
(h) Skill in the elements of trial advocacy, such as jury selection, cross-
examination of witnesses, and opening and closing statements.
Any attorney who undertakes representation of a client, including a capital defendant or death
row inmate, in Kentucky courts must be licensed by the Commonwealth of Kentucky to practice
law.”!! Out-of-state attomeys must file an application with the Kentucky Bar Association to
receive a limited certificate of admission to practice law in the Commonwealth.”"” Although the
requirement to be a member of the Kentucky Bar or admitted pro hac vice is in accordance with
this Recommendation, the Commonwealth has not established minimum qualifications standards
applicable to all attorneys that represent all capital defendants or death row inmates at trial, direct
appeal, post-conviction, or clemency proceedings in Kentucky.
However, DPA has promulgated policies, applicable to DPA employees and private attorneys
who contract with DPA to provide indigent representation, that include qualification standards
210 Training requirements are discussed in Recommendation #5. See infra notes 403-432 and accompanying text.
211 Ky, Rev. STAT. ANN. § 524.130 (West 2011) (classifying the unauthorized practice of law as a misdemeanor);
SCR 2.010 (requirements for admission to the Kentucky Bar).
*2 SCR 3.030.
192
for attomeys at each stage of capital proceedings.”’ These policies, discussed below, require
that staff attorneys and contract counsel meet the requirements set forth in this Recommendation.
We note that we are unable to determine the extent to which DPA voluntarily adheres to these
policies.
Department of Public Advocacy
DPA has adopted, by reference, the ABA Revised Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases (ABA Guidelines) and the NLADA Performance
Guidelines for Criminal Defense Representation.”!*
Staff Attorneys
In order to represent a client in a capital case, DPA policy stipulates that the attorney must be
designated as a “Staff Attorney III,” which is the classification level representing the most-
experienced and highly-qualified attomeys on DPA’s staff.° The Staff Attorney III
classification requires that the attorney meet the qualification standards called for in this
Recommendation, including zealous advocacy, training,” and possession of the requisite skill
set.”!’ While all attorneys qualified at Staff Attomey III may represent capital defendants and
death row inmates, DPA policy stipulates that trial attorneys in its CTB must also possess
significant previous trial experience, including “a minimum of four (4) years experience as a
litigator, [] good courtroom skills[,] and [] knowledge of Death Penalty jurisprudence in addition
to meeting the qualifications [of a] Staff A ttomey III.”2"*
In addition to attaining a Staff Attomey III designation, DPA attorneys providing representation
at the appellate and post-conviction level must also be able to provide competent and diligent
representation to death row inmates.”"® A Staff Attomey III in the Appellate Branch “must
identify appellate issues irrespective of the complexity of the case, must research those issues
thoroughly, must write a persuasive brief, and must argue the case skillfully to any appellate
213° Ky, REV. STAT. ANN. § 31.030(4) (West 2011) (it is DPA’s authority and duty to develop and promulgate
“standards and regulations, rules, and procedures for administration of the defense of indigent defendants in criminal
cases which the public advocate, statutes, or the courts determine are subject to public assistance.”); DPA POLICIES,
supra note 97, at § 4.22(III).
21 DPA POLICIES, supra note 97, at § 17.21(1) (Trial Division Guidelines: Case Reviews and Voir Dire Workshops
in Capital Cases). DPA policies have been adopted to ensure that the Department can “provide each client with
high quality services through an effective delivery system which ensures a defender staff dedicated to the interests of
their clients. ...” DPA 2010 ANNUAL REPORT, supra note 25, at 2.
215 DPA POLICIES, supra note 97, at §§ 4.22(III)(C)(1), 17.20.
216 DPA POLICIES, supra note 97, at § 4.22(III)(C)(3)(c).
217 DPA POLICIES, supra note 97, at §§ 17.22(I) (initially issued June 9, 1998) (last revised 2006), 4.22(III). A
Staff Attorney III must also have shown initiative by participating in special projects or assignments; assuming
additional responsibilities; acting as a legal resource for other staff; developing an expertise; “[e]xcelling in handling
a variety of complex legal services, trial research, and administrative [duties], characterized by issues which are
complex, unique or technical in nature”; or interacting professionally with various members of the criminal justice
arena. DPA POLICIES, supra note 97, at § 4.22(III)(C)(3)(d).
218 DPA POLICIES, supra note 97, at § 17.22(I). DPA revised its policies reclassifying its staff attorneys into three
levels: Staff Attomey I, Staff Attomey II, and Staff Attomey III. DPA POLICIES, supra note 97, at § 4.22.
219 DPA POLICIES, supra note 97, at § 4.22(III)(C)(3)(b)(ii)- (iii); see supra notes 215-218 and accompanying text.
193
court and take any further steps necessary to finalize the appeal.”””’ Similar criteria exist for a
Staff Attorney III in the Post-Conviction Branch, where attomeys must “conduct interviews of
clients, witnesses, including trial and appellate counsel, must competently identify potential post-
conviction issues, must research and investigate those issues thoroughly, must write appropriate
pleadings, and must present skillfully post-conviction hearings (and appeals therefrom) in state
and federal court, all irrespective of the cases’ complexity.””
DPA Contract Conflict Counsel
DPA contracts with private counsel to provide representation in the event of a conflict of interest
or excessive caseloads within the Department.” In order to be included in DPA’s list of
prospective contract counsel, DPA policy requires that the attorney must (1) be licensed to
practice law in the Commonwealth or be qualified to practice before the Sixth Circuit, (2) have
demonstrated a commitment to providing zealous advocacy and high quality legal representation
in the defense of capital cases,“ and (3) have completed a com rehensive training program,
approved by DPA, on several topics relating to capital defense.” DPA policy also requires
private counsel to have demonstrated skills in accordance with this Recommendation.”
addition, if contracting for representation in a post trial action, DPA requires the attorney to ee
demonstrated skill in the elements of appellate advocacy.””°
As a condition of the contract with DPA, counsel must agree to participate in a case review at
least 120 days prior to trial, or ninety days before filing a post-conviction motion on behalf of a
death row inmate, and in workshops or practice arguments depending on the type of proceeding
in which counsel enters his/her appearance.”
We note, however, that because the Commonwealth does not require that capital counsel meet
the qualification standards described in this Recommendation, we are unable to determine the
extent to which DPA’s qualification standards are enforced. Furthermore, DPA consistently
contracts with approximately ten capital-qualified attorneys across the Commonwealth that meet
DPA’s qualification requirements for contract counsel in death penalty trials.”° The small pool
of private attorneys with whom DPA contracts for death penalty trial work may be limited due to
an insufficient pool of attorneys who meet the qualification standards for appointment and due to
the maximum caps on compensation and low hourly rates available to contract counsel.””
Louisville Metro Public Defender’s Office
220 DPA POLICIES, supra note 97, at § 4.22(III)(C)(3)(b) (ii).
221 DPA POLICIES, supra note 97, at § 4.22(III)(C)(3)(b) (iii).
222 See supra notes 161-162 and accompanying text.
223 DPA POLICIES, supra note 97, at § 8.04(I ee
224 DPA POLICIES, supra note 97, at § 8.04(1)(C)(3). For more information on training, see Recommendation #5.
225 DPA POLICIES, supra note 97, at § 8.04(I)(C).
226 DPA POLICIES, supra note 97, at § 8.04(I)(C)(4)(i).
227 DPA POLICIES, supra note 97, at § 8.04(1)(D)(1), (2)(a)-(b). Attomeys may request additional case reviews,
which will be provided at least thirty days prior to a significant advocacy event such as an evidentiary hearing. DPA
POLICIES, supra note 97, at § 8.04(I)(D)(4).
228 Interview with Tom Griffiths, supra note 24,
29 See supra notes 120-126 and accompanying text on compensation rates for contract counsel in death penalty
cases,
194
The Metro Defender requires its staff attorneys providing capital representation to successfully
complete extensive capital case training and attempts to ensure that each attorney assigned to a
capital case has capital litigation experience.
However, the Metro Defender has not formally adopted any written rules, policies, or guidelines
governing the requisite qualifications of staff attorneys or contract counsel in capital cases.”"!
We also were unable to determine whether the pool of staff and contract attorneys available for
representation in capital cases arising in Jefferson County is sufficient to ensure that each capital
defendant in the county receives high quality legal representation.
Conclusion
Although current internal DPA policies comport with this Recommendation, the Commonwealth
of Kentucky has not established any minimum qualification standards that apply to all counsel
providing capital representation at trial, on direct appeal, and during post-conviction and
clemency proceedings. Furthermore, public defender agencies self-enforce any internal agency
guidelines on capital representation, which provides no guarantee that capital defendants and
death row inmates will be represented by attorneys who possess demonstrated skills in the areas
outlined in Recommendation #2. Therefore, Kentucky partially complies with this
Recommendation.
C. Recommendation #3
The selection and evaluation process should include:
a. A statewide independent appointing authority, not comprised of judges or
elected officials, consistent with the types of statewide appointing authority
proposed by the ABA (see, American Bar Association Policy
Recommendations on Death Penalty Habeas Corpus, paragraphs 2 and 3,
and Appendix B thereto, proposed section 2254(h)(1), (2)(1), reprinted in 40
Am. U. L. Rev. 1, 9, 12, 254 (1990), or ABA Death Penalty Guidelines,
Guideline 3.1 Designation of a Responsible A gency), such as:
i. A defender organization that is either:
(a) A jurisdiction-wide capital trial office, relying on staff attorneys,
members of the private bar, or both to provide representation in
death penalty cases; or
(b) A jurisdiction-wide capital appellate and/or post-conviction defender
office, relying on staff attorneys, members of the private bar, or both
to provide representation in death penalty cases; or
ii, An “Independent Authority,” that is, an entity run by defense attorneys
with demonstrated knowledge and expertise in capital representation.
289 Interview with Metro Defender, supra note 43. The Metro Defender has stated that there may be three attomeys
assigned to a capital case in order to provide training for its staff attomeys. Id.
251 Td.; Interview with Daniel T. Goyette, supra note 101.
195
In the Commonwealth of Kentucky, DPA and the Metro Defender are the statewide independent
appointing authorities responsible for training, selecting, appointing, and monitoring attorneys
who represent indigent capital defendants and death row inmates.” DPA division directors and
branch managers are responsible for the assignment of DPA attorneys, as well as counsel
contracted by DPA, to capital cases in 119 of the Commonwealth's 120 counties.” The Metro
Defender's Chief Public Defender, Deputy Chief Public Defender, and Division Directors are
responsible for selecting counsel for indigent capital defendants whose cases arise out of
Jefferson County.”
Because the Commonwealth has vested DPA and Metro Defender staff counsel with the
responsibility to assign representation in capital trials and appeals, Kentucky is in compliance
with this portion of Recommendation #3.
b. Development and maintenance, by the statewide independent appointing
authority, of a roster of eligible lawyers for each phase of representation.
DPA and the Metro Defender maintain capital trial and post trial branches, composed of
attorneys specially qualified to provide representation to indigent defendants at trial and through
each of the remaining phases of capital proceedings.“° DPA policy also requires the
maintenance of a written “list of private attorneys who are willing and qualified to enter into trial
and post trial level capital conflicts with the Department.”™° The list, which is categorized by
attorneys qualified to provide representation at capital trials, on direct appeal, and during post-
conviction proceedings, is maintained and periodically updated by DPA’s Capital Trial Branch
(CTB) Manager and the Post Trial Division Director.”%”
Similarly, the Metro Defender has implemented an “Assigned Counsel Panel Plan” through
which the Metro Defender compiles the names of private local attorneys who may be qualified
and available to handle a capital case in the event of a conflict of interest barring a Metro
282 Ky. REV. STAT. ANN. §§ 31.010 (establishing DPA as “an independent agency of state government”), 31.030,
31.050, 31.060 (West 2011).
233 Ky, REV. STAT. ANN. §§ 31.030, 31.050, 31.060 (West 2011) (requiring a county with ten or more circuit court
judges, such as Jefferson County, to maintain an office of public defense).
“4 “Interview with Metro Defender, supra note 43. While DPA is overseen by the Public Advocacy Commission
(Commission), an entity composed of members appointed by the Governor and the Kentucky Supreme Court, the
Commission is prohibited by law from interfering “with the discretion, judgment, or advocacy of employees of
[DPA] in their handling of individual cases.” Ky. REV. STAT. ANN. § 31.015(7) (West 2011). See Factual
Discussion, supra notes 32-41 and accompanying text, for additional information on the Commission. The Public
Advocate, who serves as chief administrator of DPA and who is responsible for appointing and hiring a Deputy
Public Advocate, assistant public defenders, and other DPA personnel, is selected by the Kentucky Govemor from a
list of three candidates recommended by the DPA Commission. Ky. REV. STAT. ANN. § 31.020(2) (West 2011).
285 Trial Division, Ky. DEP’T OF PuB. ADVOCACY, http://www.dpa.ky.gov/div/trial.htm (last visited Oct. 14, 2010);
About, LOUISVILLE METRO PuB. DEFENDER’S OFFICE, http://www.louisvillemetropublicdefender.com/about.html
(last visited Oct. 14, 2010); Interview with Metro Defender, supra note 43. Ky. REV. STAT. ANN. § 31.010 (West
2011) (the system was established to represent all “indigent persons accused of crimes or mental states which may
result in their incarceration or confinement”). For more information on DPA’s requisite qualifications to become
capital-qualified, see Recommendation #2, supra notes 214-221 and accompanying text.
236 DPA POLICIES, supra note 97, at § 8.04(I)(C)(1).
287 Id. Qualifications established by DPA for representation in capital cases are discussed at length in
Recommendation #2.
196
Defender attorney from providing representation." A ttomeys seeking appointment to a capital
case by the Metro Defender must fill out an application describing the attomney’s education and
trial litigation experience, including experience providing capital representation at every stage of
capital proceedings.”*” In practice, the Metro Defender’s Chief Public Defender, Deputy Chief
Public Defender, and Division Directors make an “ad hoc” decision on which two attomneys to
appoint from the Metro Defender’s roster depending upon the circumstances of each case.”4°
The Metro Defender’s Office Manager maintains and periodically updates the file of attomeys
qualified to represent capital (and non-capital) defendants at each stage of the proceedings.”""
Although both DPA and the Metro Defender have developed and currently maintain a roster of
eligible lawyers for each phase of capital representation, the Commonwealth has not vested in
these agencies the authority to maintain a roster of all private counsel that is qualified to
represent capital defendants and death row inmates. Thus, the Commonwealth is in partial
compliance with this portion of Recommendation #3.
c. The statewide independent appointing authority should perform the
following duties:
This portion of the recommendation will address the extent to which DPA and/or the Metro
Defender are performing the duties listed below. However, we note at the outset that because
neither DPA nor the Metro Defender, nor any other entity in the Commonwealth, is vested with
the authority to certify the qualifications or monitor the performance of all attorneys, including
privately-retained counsel and court-appointed counsel, who provide representation in capital
cases, the Commonwealth is not fully compliant with this Recommendation. Furthermore, no
entity is responsible for enforcing or monitoring DPA’s or the Metro Defender’s performance of
the duties listed below.”
i, Assign the attorneys who will represent the defendant at each stage of
every case, except to the extent that the defendant has private attorneys;
ii. Establish minimum standards for performance of all counsel in death
penalty cases;
iii. Recruit and certify attorneys as qualified to be appointed to represent
defendants in death penalty cases;
iv. Draft and periodically publish certification standards and procedures by
which attorneys are certified and assigned to particular cases;
v. Draft and periodically publish rosters of certified attorneys;
Department of Public Advocacy
238 Interview with Daniel T. Goyette, supra note 101; Ky. R. Crim. P. 8.30 (requiring separate counsel for cases
with multiple defendants).
239 Interview with Daniel T. Goyette, supra note 101.
240 Id.
241 Id.
22 While the Public Advocacy Commission and the Metro Defender Board oversee DPA and the Metro Defender
respectively, these entities do not monitor the public defenders’ performance of the duties listed in this
Recommendation; in fact, the Commission is statutorily prohibited from interfering with DPA’s handling of cases.
Ky. REV. STAT. ANN. § 31.015(7) (West 2011).
197
DPA is responsible for assigning two attorneys to represent an indigent capital defendant at each
stage of the proceeding for every case arising within 119 counties of the Commonwealth.”
DPA Policy stipulates that it is the responsibility of DPA’s Directing Attomeys, along with the
CTB Manager and the Regional Manager, to appoint two attorneys to each death penalty case at
trial.“ In practice, the CTB Manager strives to assign two capital-qualified attorneys, from
CTB or a regional trial office, to every murder case in which the death penalty could be
sought. Appointment determinations are based on several factors, including the “relative
experience of the available field office staff, current caseload in CTB, complexity of the case,
retrials, special expertise of CTB, geographical concerns, and the special circumstances in the
given case.”™° In cases where the CTB Manager determines that CTB representation is not
appropriate, DPA strives to contract with private counsel to ensure two attomeys provide
representation to the indigent capital defendant.’ Capital direct appeals and post-conviction
proceedings are assigned to capital-eligible attorneys within DPA’s Post Trial Branch, unless a
conflict of interest requires DPA to contract with capital-qualified private counsel to represent its
death row inmates.”“*
DPA has promulgated minimum performance standards governing its staff attorneys and contract
counsel in death penalty cases at the trial, appellate, and post-conviction level, to comport with
the ABA Guidelines.“° DPA also recruits private attomeys within the Commonwealth for
inclusion in its roster of capital-qualified private attorneys that may contract with DPA to
provide representation in a death penalty case.”°° However, DPA has not promulgated any
specific procedures to certify attorneys as qualified to represent capital defendants. In addition,
although DPA policies on the qualifications required of capital counsel are written and
published, we are unaware of their availability to the public; nor does it appear that DPA’s roster
of capital-qualified attomeys is periodically published or made available to the public.
Louisville Metro Public Defender’s Office
The Director of the Metro Defender’s Adult Trial Division determines which attomeys within
the Capital Division are appointed to a capital-eligible case arising within Jefferson County.”*!
43° DPA POLICIES, supra note 97, at §§ 17.20(A) (DPA supervisors and managers are responsible for the
appointment of two qualified counsel even “in the event that the Directing Attorney or other Staff Attorneys are
disqualified from providing direct representation by order of the Court or DPA action.”), 17.20(I)(C).
244 DPA POLICIES, supra note 97, at § 17.20(A) (noting that any disagreement regarding who to appoint will be
resolved by the Trial Division Director).
245 Interview with Tom Griffiths, supra note 24; see also supra notes 214-221 and accompanying text (defining
capital-qualified attomneys).
246° DPA POLICIES, supra note 97, at § 17.20(I)(D).
247 DPA 2010 ANNUAL REPORT, supra note 25, at 21.
248 DPA POLICIES, supra note 97, at §§ 18.01, 18.03, 8.04(1)(C), 8.04(I1)(B).
249 DPA POLICIES, supra note 97, at §§ 17.21 (Trial Division performance guidelines for capital cases), 18.01 (Post
Trial Division minimum performance standards), 8.04 (noting the adoption of the ABA Guidelines as part of DPA
contract counsel qualifications).
250 DPA POLICIES, supra note 97, at § 8.04(1)(C); supra notes 222-228 and accompanying text.
°5! Interview with Metro Defender, supra note 43. Although it lacks written policies or guidelines mandating the
assignment of counsel, the Metro Defender determines who will be assigned to each individual case. Id. The Metro
Defender estimates that ninety percent of its capital-eligible homicides do not result in a capital charge, thereby
creating difficulty in determining whether to assign a homicide case to capital counsel. Id.
198
While the Metro Defender attempts to ensure that the two attorneys who are appointed to death
penalty cases have extensive trial experience and/or capital litigation experience; to the best of
our knowledge, the Metro Defender has not established minimum performance standards for
counsel representing a capital defendant or death row inmate.”
When attorneys from the Metro Defender’s Capital Division cannot provide representation, the
Metro Defender contracts with independent conflict counsel to ensure two attomeys are assigned
to a capital defendant’ s case. Under its “A ssigned Counsel Panel Plan,” the Metro Defender
recruits private attomeys for inclusion on a roster which is consulted in the event of a conflict of
interest barring the Metro Defender’s representation at trial.“* The Metro Defender’s roster of
attomeys eligible for appointment in death penalty cases is unpublished and it is unclear whether
it is written. The Metro Defender has not established certification procedures for its private
counsel wishing to represent capital defendants on a contractual basis.
vi. Implement mechanisms to ensure that the workload of defense attorneys
in death penalty cases enables counsel to provide each client with high
quality legal representation consistent with the ABA Guidelines;
Funding shortages represent the single greatest impediment to ensuring proper workloads for all
public defenders, including those representing capital defendants and death row inmates. A
detailed discussion of funding is found below in Recommendation #4. Absent an increase in
funding, DPA and the Metro Defender have sought to limit the workload of public defenders to
enable counsel to provide high quality legal representation in death penalty cases consistent with
the ABA Guidelines.
The U.S. Department of Justice’s Bureau of Justice Statistics (BJS) reported that Kentucky
public defender agencies receive, by far, the greatest number of capital-eligible felony cases out
of eleven statewide public defender programs in capital jurisdictions that were examined in its
study.”° According to the BJS Report, in 2007, Kentucky’s public defender agencies undertook
representation in ninety-seven death penalty cases.” The state with the second highest number
of capital cases at trial was Maryland, in which the public defender undertook representation in
thirty capital trials.’°”
252 Interview with Metro Defender, supra note 43.
253 Interview with Metro Defender, supra note 43; Interview with Daniel T. Goyette, supra note 101.
254 See supra notes 238-241 and accompanying text. DPA capital-eligible attorneys also may provide
representation in the Metro Defender’s conflict cases at direct appeal or during post-conviction proceedings.
Interview with Metro Defender, supra note 43; Interview with DPA, supra note 12.
255 BJS REPORT, supra note 6, at 11 (including caseload data from all of Kentucky’s public defender agencies in
2007); Email from Ed Monahan, supra note 10. Note that case numbers submitted to BJS were counted pursuant to
DPA’s previous case counting method. See supra note 10.
256 BJS REPORT, supra note 6, at 11 (“The number of cases in which the prosecutor filed for the death penalty
ranged from 97 cases in Kentucky to 1 case each in Arkansas and New Hampshire.”). DPA states that it did not
distinguish in its responses to the BJS inquiry between capital-eligible cases and cases where a notice of aggravators
were filed. Email from Ed Monahan, supra note 10.
257 BJS REPORT, supra note 6, at 11.
199
In fiscal year 2011, Kentucky’s public defenders represented 101 capital clients in forty-two
counties.”° DPA estimates that it represents capital defendants in approximately thirty-two
capital trials each year.°* Of those, approximately sixteen are handled by DPA’s capital trial
branch attomeys; the other half of the capital cases are handled by independent conflict counsel,
DPA’s regional trial attorneys, or privately-retained counsel.” Pursuant to its policy, DPA
attempts to limit capital caseloads by assigning each capital case to a CTB attorney who is best
equipped, due to current caseload and experience, to undertake representation at that time.”°!
DPA attempts to limit the CTB caseloads to five or six cases per attorney and assigns the
remainder of the capital cases to DPA regional offices.’ In 2010, forty-four regional trial
branch attomeys were providing representation in capital trials, in addition to representing clients
in over 400 non-capital cases each year, far exceeding national averages and recommended
maximum caseloads.” Regional trial branch managers are responsible for monitoring the
workloads of their defense attomeys providing representation in capital cases.”
In Jefferson County, the Metro Defender typically represents between twenty-five and twenty-
seven clients under capital indictment at any given time, resulting in a caseload of approximately
thirteen to fourteen cases per attorney in the Capital Trial Division.” Unlike DPA, the chief
administrators of the Metro Defender carry capital caseloads in addition to their administrative
258 DPA 2011 ANNUAL REPORT, supra note 4, ati.
259 Interview with DPA, supra note 12. This excludes Jefferson County, discussed below in the Metro Defender
section. In fiscal year 2010, DPA’s CTB defended thirty-five capital cases. DPA 2010 ANNUAL REPORT, supra note
25, at 19.
200 Interview with DPA, supra note 12. Out of the sixteen cases not handled by DPA’s CTB, about two cases per
year are handled by private attorneys, and two more are handled by contract conflict counsel. The remainder are
handled by DPA field office staff attomeys. Id.; DPA POLICIES, supra note 97, at §§ 17.20(A) (stating that it will be
the DPA supervisors and managers obligation to appoint two qualified counsel even “in the event that the Directing
Attorney or other Staff A ttomeys are disqualified from providing direct representation by order of the Court or DPA
action”), 17.20(I)(C).
261 See DPA POLICIES, supra note 97, at § 17.20.
262 Interview with DPA, supra note 12.
263 Td. DPA strives to assign each capital trial at least two attomeys, although this is not always possible. DPA
POLICIES, supra note 97, at § 17.20(A); Interview with Tom Griffiths, supra note 24. With respect to appellate
caseloads during fiscal year 2010, 288 cases, including eight death penalty cases, were assigned to DPA’s Appellate
Branch, resulting in an average caseload per attorney of 17.45. DPA 2010 ANNUAL REPORT, supra note 4, at 10.
At the end of fiscal year 2010, DPA’s Post-Conviction Branch represented thirty-two clients on death row and had
forty court actions pending in capital cases, or a caseload of approximately nine cases per attorney, not including
non-capital cases. Id. In fiscal year 2011, DPA’s Appellate Branch received 280 new cases, including two death
penalty cases pending direct appeal, and DPA’s Post-Conviction Branch represented twenty-four clients on death
row and had forty-seven court actions pending in capital cases. DPA 2011 ANNUAL REPORT, supra note 4, at 12. In
addition to their capital caseload, most Post-Conviction Branch capital attomeys also provide representation in one
or two non-capital cases. Interview with DPA, supra note 12. Average caseloads include actions pursuing a number
of different avenues of relief, such as civil actions or expert assistance in clemency applications, for a single death
row inmate. Telephone Interview by Paula Shapiro with Tim Arnold, Director of the Post Trial Division, Ky. Dep’t
of Pub. Advocacy, Oct. 29, 2010 (on file with author). No DPA attomey exclusively represents clients at clemency,
although DPA provides representation during clemency proceedings to all of its clients. Id.
264 DPA POLICIES, supra note 97, at § 17.21(II).
°65 Interview with Metro Defender, supra note 43. As of July 9, 2010, the Metro Defender represented twenty-four
capital clients. Id. Five or six years ago, there were, on average, thirteen to fifteen active death penalty cases within
the entire jurisdiction. Id. The number of capital defendants represented by private counsel in Jefferson County is
approximately twenty-five, which is the same as the number of the Metro Defender ’s capital clients. Id
200
duties."° The Metro Defender attempts to limit the number of capital cases handled by its
Capital Trial Division by seeking to contract with independent counsel to provide representation
when faced with extraordinary caseloads.?°”
Despite efforts to combat excessive caseloads, Commonwealth caseloads continue to rise. The
Metro Defender handles approximately double the capital caseload of its counterparts at DPA .”°°
Meanwhile, DPA’s overall caseloads have risen from 97,818 in 2000 to 147,245 in 2009, with a
4.7 percent average increase over the last ten years.” In 2011, DPA and the Metro Defender
received a combined total of 152,727 new cases.’” While ad hoc measures employed by DPA
and the Metro Defender attempt to limit capital caseloads, we are unable to determine if these
mechanisms sufficiently limit the impact of increasing caseloads on public defenders, including
those handling death penalty cases, throughout Kentucky.
vii. Monitor the performance of all attorneys providing representation in
capital proceedings;
DPA is responsible for monitoring the performance of its staff attomeys and contract conflict
counsel who provide representation in capital proceedings.””! DPA’s policies require all capital
counsel to participate in a case review at least four months prior to the scheduled trial date.”””
Such counsel must also participate in “a voir dire work shop at least thirty (30) days” prior to
trial.?” A ttomeys in DPA’s Post Trial Division must participate in at least two case reviews per
year.” Post Trial Division Branch Managers responsible for the appointment of capital
representation must ensure case reviews occur “at meaningful and critical junctures” in each
268 Organizational Chart, LOUISVILLE METRO PUBLIC DEFENDER’S OFFICE,
http://www louisvillemetropublicdefender.com/org_chart.pdf (last visited Aug. 13 2010); Petition for Declaratory
Judgment, Lewis v. Hollenbach, Franklin Cir. Ct. Division II, Civil Action No. 08-CI-1094, at *6 (filed Jun. 30,
2008). The Metro Defender’s Appellate Division indicate an average of about twenty-four direct appeal cases per
attomey; however, Metro Defender appellate attorneys are responsible for assisting trial attomeys with district court
appeals and writs, serving as “of counsel” to each of the three trial divisions with pretrial matters, trial issues, and
post-conviction actions. Interview with Metro Defender, supra note 43.
*T Tnterview with Metro Defender, supra note 43.
268 As stated, DPA capital counsel have, on average, a caseload of five or six capital cases at any given time. See
supra note 262 and accompanying text. However, Metro Defender capital attomeys handle an average of twelve to
fourteen capital cases each year. DPA 2010 ANNUAL REPORT, supra note 25, at 17 (noting that one Metro Defender
attorney has handled “an average of twelve to fourteen capital defendants each year for the past decade”).
269 DPA SERVICE PLAN, supra note 63, at 13. These figures were counted using DPA’s previous case-counting
method. See supra note 7.
270 DPA 2011 ANNUAL REPORT, supra note 4, at 3.
271 DPA POLICIES, supra note 97, at § 17.21(II) (noting that within DPA’s Trial Branch, the “Regional Manager in
each of the five regions and the Capital Trial Branch Manager shall be responsible for monitoring all attorneys
representing capital clients in their region and/or branch in order to ensure compliance with the requirements set
forth in this policy”); Interview with Metro Defender, supra note 43. DPA is statutorily mandated to “[dJevelop[]
and promulgat[e] standards and regulations, rules, and procedures for the administration of the defense of indigent
defendants in criminal cases which the public advocate, statutes, or courts determine are subject to public
assistance.” Ky. REV. STAT. ANN. § 31.030(4) (West 2011).
272 DPA POLICIES, supra note 97, at § 17.21(II). While the Metro Defender is organized under Chapter 31 of the
KRS, it does not appear DPA policies are applicable to Metro Defender activities.
Id.
24 DPA POLICIES, supra note 97, at § 18.03(I)(A) (first issued May 27, 1999) (last revised Jan. 27, 2007).
201
capital case.’” Branch managers report to the relevant division director all case reviews
conducted each month.?” However, we were unable to confirm whether DPA currently
conducts these reviews and workshops in every capital case.
Counsel under contract with DPA also are required, as a condition of the contract, to attend and
fully participate in selected DPA training events such as the Death Penalty Trial Practice
Institute, or other non-DPA training events as determined by DPA.?”’ In addition, these
attorneys must participate in a “case review at least 120 days prior to trial, or 90 days prior to the
filing of the appellant’ s opening brief, or the filing of an RCr 11.42 motion.”*” Similarly, DPA
policy requires all direct appeal and post-conviction contract counsel to undergo case review,
mock oral argument, and other selected DPA trainings, as determined by the Post Trial Division
Director.” However, in practice, it appears DPA’s oversight of its contract conflict counsel
may be more limited than is stipulated in the Departments policies.“
The Metro Defender conducts capital case reviews and utilizes other performance monitoring
mechanisms for its capital attorneys on staff and under contract; however, it does not possess
written policies governing the monitoring of the performance of its capital defense attomeys and
contract conflict counsel providing capital representation analogous to DPA provisions described
above." DPA and Metro Defender capital counsel may also be held accountable for their
performance in yearly performance evaluations.”
Because the Commonwealth’s public defender agencies provide some internal oversight of
capital attorneys on staff and at least limited oversight of contract counsel, Kentucky is in partial
compliance with this aspect of the Recommendation.
viii. Periodically review the roster of qualified attorneys and withdraw
certification from any attorney who fails to provide high quality legal
representation consistent with these Guidelines;
Both DPA and the Metro Defender state that each agency periodically reviews and updates its
respective lists of capital-qualified attorneys available for appointment on a contractual basis by
removing attorneys from the list who are no longer willing or able to accept appointment or who
are deemed no longer qualified to provide high quality legal representation consistent with the
ABA Guidelines.”** However, because the Commonwealth does not require formal certification
of all attorneys providing representation in death penalty cases (public defenders, contract
275 DPA POLICIES, supra note 97, at § 18.03(I)(A), (C). Prior to the case review, the capital attomeys must inform
their branch manager of “any special issues that exist in the case (i.e. other DPA attorneys with conflicts of interest,
special expertise desired in a reviewer)” so the manager and supervisors are able to select a qualified case review
team. DPA PoLIcigs, supra note 97, at § 18.03(I)(B).
276 DPA POLICIES, supra note 97, at § 18.03(1)(E).
277 DPA POLICIES, supra note 97, at § 8.04(I)(D)(3).
278 DPA POLICIES, supra note 97, at § 8.04(I)(D)(1).
279 DPA POLICIES, supra note 97, at § 8.04(II)(B)(5).
260 Interview with Glenn McClister, supra note 173; Interview with Tom Griffiths, supra note 24.
261 Interview with Metro Defender, supra note 43.
282 Interview with Glenn McClister, supra note 173; Interview with Daniel T. Goyette, supra note 101.
283 Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43.
202
conflict counsel, court-appointed attorneys, or privately-retained counsel), the Commonwealth is
only in partial compliance with this Recommendation.
The importance of certification is illustrated by the case of Gregory Wilson, who was charged
and later convicted and sentenced to death for murder, rape, and kidnapping in Kenton
County.” The court sought representation for Wilson by hanging a sign on the courtroom door
that read “PLEASE HELP. DESPERATE. THIS CASE CANNOT BE CONTINUED
AGAIN.” One of the two attorneys who agreed to take the case had never tried a felony case
and the other was a “semi-retired” lawyer who volunteered to serve as lead counsel for free,
“though he had no office, no staff, no copy machine and no law books . . . [and] practiced out of
his home, where he displayed a flashing ‘Budweiser’ sign.” Without a certification process
that ensures that only highly qualified attorneys take on representation of a capital client,
Kentucky fails to guard against capital defendants receiving representation by such unqualified
attorneys in future cases.
ix. Conduct, sponsor, or approve specialized training programs for attorneys
representing defendants in death penalty cases;
DPA’s Education and Strategic Planning Branch conducts, sponsors, and provides specialized
training for DPA and Metro Defender staff attorneys providing capital representation, as well as
contract conflict counsel who are actively representing a capital defendant or death row
inmate.”°’ DPA also sponsors CLE courses and local and national seminars and conferences
available to staff public defenders, contract conflict counsel, court-appointed counsel, and
privately-retained defense counsel in death penalty cases.** The Metro Defender also provides
capital and non-capital in-house training, and sends its capital defense attomeys to participate in
DPA trainings, free of charge, as well as national capital defense workshops, to the extent
resources are available.”®° For more on the training of capital counsel in the Commonwealth, see
Recommendation #5.
x. Investigate and maintain records concerning complaints about the
performance of attorneys providing representation in death penalty cases
and take appropriate corrective action without delay.
No single entity is responsible for investigating and maintaining records conceming complaints
about the performance of attorneys providing representation in Kentucky death penalty cases.
254 See Wilson v. Commonwealth, 836 S.W.2d 872 (Ky. 1992).
285 Wilson v. Rees, 624 F.3d 737, 739 (6th Cir. 2010), Martin, J. dissenting; Andrew Wolfson, Problems littered
ky. death-row inmate's trial, Sept. 16 execution, COURIER-J. (Louisville, Ky.), Sept. 8, 2010, at A1.
280 Rees, 624 F.3d at 739.
287 See Recommendation #5 on training, infra notes 403-432 and accompanying text.
288 Education Overview, Ky. DEP’T OF PuB. ADVOCACY, http://www.dpaky.gov/ed (last visited Oct. 14, 2010)
(listing CLE events open to all criminal defense attomeys, as well as annual conferences and in-house trainings for
DPA staff attorneys); DPA POLICIES, supra note 97, at § 12.04; Email from Tom Griffiths, supra note 168 (noting
that DPA’s Education Department “works with national organizations to secure scholarships to various [training]
events”). DPA is statutorily authorized to “[d]o such things and institute such programs as are reasonably necessary
to carry out the provisions of” Chapter 13 of the KRS, which creates the statewide public defender system. Ky.
REV. STAT. ANN. § 31.030(13) (West 2011).
28 Interview with Daniel T. Goyette, supra note 101.
203
DPA has promulgated procedures for internally reviewing and handling complaints about staff
attorney and contract conflict counsel performance,”*’ which includes “a structure and a process
for quickly and fairly responding to and resolving complaints about client representation at the
lowest level possible, and that provides DPA’s management with information to insure quality
service to clients.””*! Upon an allegation or complaint, a DPA “supervisor shall promptly
respond to the complainant and inform the DPA employee or contractor of the response,” and
determine, where warranted, the “immediate appropriate corrective action” to be taken.””? DPA
maintains records on each complaint, including copies of the complaint, response, findings, and
corrective action taken.?%
In the event of a complaint about a Metro Defender attorney performance, the Metro Defender
will internally review and take appropriate corrective action.” However, the Metro Defender
does not have written policies or procedures governing its review process upon receipt of a
complaint on counsel’s performance. We were unable to determine how often complaints are
reviewed and whether records of each complaint are maintained.
Pursuant to the Rules of the Kentucky Supreme Court, the Kentucky Bar Association (KBA) is
the entity responsible for investigating and maintaining records concerning complaints about
violations of the Rules of Professional Conduct (Rules) of any licensed attorney in the
Commonwealth, including those providing representation in death penalty cases.” However,
poor performance by defense counsel in a capital case cannot be remedied through bar
disciplinary proceedings, even if such performance rises to the level of ethical misconduct.”%°
The Kentucky Code of Judicial Conduct also advises that a “judge who receives information
indicating a substantial likelihood that a lawyer has committed a violation of the Kentucky Rules
290 DPA POLICIES, supra note 97, at §14.09(III)(E) (“A complaint is defined as the raising of a significant issue
affecting either the quality of representation or the attorney-client relationship that in the discretion of the supervisor
appears to warrant further examination.”).
281" DPA POLICIES, supra note 97, at §14.09(I)-(II) (“This policy and procedure applies to all DPA employees and
contractors in the Trial, Post-Trial and Law Operations Divisions.”).
292 DPA POLICIES, supra note 97, at §14.09(V)-(VI)
293 DPA POLICIES, supra note 97, at §14.09(IV)-(VI).
24 Interview with Daniel T. Goyette, supra note 101.
295 See generally SCR 3.130-3.530; Office of Bar Counsel Overview, Ky. BAR Ass’N, http://www.kybar.org/234
(last visited Oct. 19, 2010).
296 SCR 3.380 (degrees of discipline). Attomeys licensed to practice in the Commonwealth may be disciplined,
resulting in sanctions ranging from reprimand to permanent disbarment, for violations of the Rules, including
i, Misappropriation of client funds;
ii. If probable cause exists to believe that “an attomey’s conduct poses a substantial threat of harm to
his[/her] clients or to the public;”
iii. If “[aJn attomey has been convicted of a crime... and it appears from the record of such conviction that
the attorney has so acted as to put in grave issue whether he/she has the moral fitness to continue to
practice law;”
iv. If probable cause exists to believe that “attorney is mentally disabled or is addicted to intoxicants or
drugs and probable cause exists to believe he/she does not have the physical or mental fitness to continue
to practice law.” SCR 3.165(1)-(4).
Bar disciplinary proceedings relating to ethical misconduct do not bear upon whether an attomey’s client has
received “ineffective assistance counsel.” See generally Strickland v. Washington, 466 U.S. 668 (1984).
204
of Professional Conduct should take appropriate action.”“"’ When a judge has “knowledge that a
lawyer has committed a violation of the [Rules] that raises a substantial question as to the
lawyer's honesty, trustworthiness or fitness as a lawyer in other respects,” the judge should
“inform the appropriate authority.”””
The KBA’s Office of Bar Counsel investigates allegations of attomey misconduct.”*? However,
as the entity that licenses attorneys, only the Kentucky Supreme Court can reprimand an
attorney, suspend an attorney’s license, or order permanent disbarment from the practice of
law.°” The Office of Bar Counsel is also responsible for maintaining records of any complaints
filed, which remain confidential, while the Disciplinary Clerk is responsible for maintaining
records of subsequent disciplinary proceedings and determinations, which are available to the
public upon request.°” Findings of misconduct and sanctions are available publicly in the
Southwest Reporter; if no misconduct is found, information on the disciplinary proceedings will
not be published.*°
However, it appears disciplinary proceedings are insufficient to guard against deficient
performance of counsel providing representation in a serious and complex case such as a capital
trial, direct appeal, or post-conviction proceeding. A 2001 article on capital punishment in
Kentucky noted that at that time “one-third of the twenty-six men on Kentucky's death row had
lawyers who were eventually disbarred or had their licenses suspended.”°°° Specifically, of the
seventy-eight individuals sentenced to death in Kentucky since 1976, at least ten have been
represented by attorneys who were later disbarred (twelve percent).°" For example, Jeffrey
297 Ky. CoDE OF JUD. CONDUCT CANON 3D(2). For a discussion of the professional conduct rules incumbent on
lawyers and prosecutors in the Commonwealth of Kentucky, see Chapter Five.
298 "Ky. CODE OF JUD. CONDUCT CANON 3D(2).
2° The Office of Bar Counsel presents its findings to a three-person panel of the “Inquiry Commission,” which is
“an independent body appointed by the [Kentucky Supreme] Court to receive and process complaints from any
source which allege professional misconduct by lawyers.” SCR 3.140. If the panel finds, after review, that there is
probable cause to find that a violation was committed, then a hearing is held by the Inquiry Commission to
determine if a violation of the Rules has occurred. SCR 3.380. The KBA has the burden of proof in a disciplinary
proceeding, and must prove the facts of the case by a preponderance of the evidence. SCR 3.330. If the
Commission makes a determination of guilt, the decision may be appealed to the KBA Board of Governors, which
will then be reviewed by the Kentucky Supreme Court; however, if neither party appeals, the decision will
automatically be reviewed by the Kentucky Supreme Court. SCR 3.370.
30 SCR 3.380.
3° Telephone Interview by Paula Shapiro with Jay Jarrett, Chief Deputy Bar Counsel, Office of Bar Counsel, Ky.
Bar Ass’n, Oct. 19, 2010 (on file with author).
3 SCR 3.150, 3.440 (final orders in disciplinary cases are published as are other opinions of the Kentucky
Supreme Court). Furthermore, every opinion or order imposing disbarment or a suspension for more than sixty days
must include a direction to the sanctioned attomey to notify all courts in which s/he has matters pending and all
clients for whom s/he is actively involved in legal matters that s/he is unable to continue representation. SCR 3.390.
“[N]otice of all public discipline imposed against a lawyer and reinstatements” is transmitted to the American Bar
Association's National Discipline Data Bank. SCR 3.440.
303 Death Trip: The American Way of Execution, NATION, Jan. 8, 2001, at 13.
3 Christopher Walls, sentenced to death in 1986, was represented by Joseph Martin, Jr., who was later charged
with unethical conduct and had his bar license suspended. Record of Death Row Attorneys Questioned, LEXINGTON
HERALD-LEADER, Nov. 19, 1990, at B1. At his first trial, Samuel Fields was represented by David L. Curtis, who
was disbarred, and Robert L. Templeton, who was later suspended from the Bar for disciplinary reasons. Ky. BAR
ASs’N, DATABASE, http://www.kybar.org/26 (search by last name) (last visited Feb. 16, 2011). Jeffrey Leonard was
represented at trial by Fred Radolovich, who was later charged with perjury due to his testimony during Leonard's
205
Leonard, sentenced to death in 1983, was represented by an attorney who later agreed to
resign from the practice of law as part of a plea agreement to have criminal perjury charges
dismissed.*° The perjury charges were directly related to the attomey’s false testimony at
Leonard’s hearing for post-conviction relief on a claim of ineffective assistance of counsel.*”” In
another case, Roger Epperson, currently on death row, was represented at trial by an attomey
who was later disbarred for a mail fraud conviction, which stemmed from the attorney
“knowingly accept{ing] money stolen in an armed robbery and murder as a fee for representing
post-conviction hearing, and agreed to resign from the practice of law as a condition of his plea agreement. Former
Louisville Lawyer Has More Problems, POPPE Law FIRM (June 21, 2009),
http://www. poppelawfirm.com/blog/211.cfm (last visited Nov. 5, 2010). Teddy Cosby was represented at trial first
by Louis McHenry, Jr., who was disbarred, and then by Chris Seaman, who was also disbarred. Ky. BAR ASS’N,
DATABASE, http://www.kybar.org/26 (search by last name) (last visited Feb. 16, 2011). Death row inmates William
Bevins and Roger Dale Epperson were both represented by Lester Burns, Jr., whose conviction of mail fraud and
receiving money stolen by his clients as payment for his legal services, lead to his disbarment. Bill Estep, Death
Row Inmates allege Jury Tampering Epperson, Hodge Accuse Prosecutor of Wrongdoing, LEXINGTON HERALD-
LEADER, Jan. 13, 2000; News Briefs From Around Kentucky, AP Alert, Jan. 17, 2010; Ky. BAR ASs’N, DATABASE,
http://www.kybar.org/26 (search by last name) (last visited Feb. 16, 2011). Benny Lee Hodge, sentenced to death
in 1986, 1987, and 1996, was represented in his 1986 trial by Dale Mitchell, an out-of-state attomey from Texas,
currently suspended from the practice of law in his home state of Texas, whose performance during Hodge’s penalty
phase was found deficient due to his failure to conduct a reasonable investigation into mitigating evidence. Find a
Lawyer, STATE BAR OF TEXas, http://www.texasbar.com/am/template.cfm?section=simple_search (search by last
name) (last visited Aug. 16, 2011); Judge rejects motion from 1 of 2 Acker killers who are on Death Row,
MOUNTAIN EAGLE, Nov. 11, 2009, http://mountaineagle.our-hometown.com/news/2009-11-11/front_page/003.html
(last visited Aug. 16, 2011). David Sanders, sentenced to death in 1987, and Karu Gene White, sentenced to death
in 1980, were represented by J. Kevin Charters, who is now disbarred. Ky. BAR ASS’N, DATABASE,
http://www.kybar.org/26 (last visited Feb. 16, 2011); Record of Death Row Attorneys Questioned, LEXINGTON
HERALD-LEADER, Nov. 19, 1990, at B1. Robert Allen Smith was represented by L.M. Tipton Reed, Jr., who was
suspended four times from the practice of law and finally disbarred, and who admitted in court to not preparing for
Smith’s case because he forgot that the prosecutor filed a notice to seek the death penalty. Search Will Go on for
Four in Laurel County, Sheriff Says, LEXINGTON HERALD-LEADER, Aug. 31, 1991; Ky. BAR Ass’N, DATABASE,
http://www.kybar.org/26 (search by last name) (last visited Feb. 16, 2011). Charles Bussell and Ernest Rogers were
both represented by Joel R. Embry, III, who was disbarred after conviction of drug possession and second-degree
manslaughter in connection with the death of his mother from starvation and neglect. See generally KBA v. Embry,
152 S.W.3d 869 (Ky. 2005). Embry stated that that “a heavy workload precluded him from spending as much time
on Bussell’s case as he would have liked and that he had a “feeling of hopelessness” as Bussell’s case unfolded.
R.G. Dunlop, Ex-Death Row Inmate Awaits a New Trial, CouRtER-J. (Louisville, Ky.), June 1, 2008, at Al. In
addition, Eddie Lee Harper, a death row inmate who voluntarily waived his appeals and was executed in 1999, was
represented at trial by Lewis G. Benham, who was suspended from the bar for failure to pay dues. Ky. BAR ASS’N,
DaTABASE, http://www.kybar.org/26 (search by last name) (last visited Feb. 16, 2011).
3° Leonard received such ineffective assistance counsel that his attomey “did not even know his client’s real
name,” leading to a gubematorial commutation of Leonard’s death sentence to life without parole. Fletcher
Pardons 83 People, WKYT.coM, http://www.wkyt.com/home/headlines/12340711.html (last visited August 24,
2010). Court opinions related to Leonard’s case are filed under the name “James Slaughter.” See, e.g., Parker v.
Slaughter, 187 F.Supp.2d 755, 774 (W.D. Ky. 2001).
3% Former Louisville Lawyer Has More Problems, Poppe Law FIRM (June 21, 2009),
http://www .poppelawfirm.com/blog/211.cfm (last visited Nov. 5, 2010).
3°” The lawyer testified that prior to representing Leonard, “he had worked as a state prosecutor in New York,
during which time he had handled four capital cases []. He also supposedly had handled two capital cases as a
defense attorney in Kentucky []. This testimony proved to be materially incorrect, however. An affidavit from the
Executive Assistant District A ttomey in New Y ork County revealed that [he] had worked for the office only for less
than a year beginning in 1977. During that time, he did not try any capital cases []. In fact, “[g]iven [his] time with
the office, it was unlikely that he tried any homicide cases.” Parker v. Slaughter, 187 F.Supp.2d 755, 774 (W.D.Ky.
2001).
206
one of the defendants prosecuted for those crimes...[his] client, Epperson, was [later]
sentenced to death.”°°° Epperson’ s attorney was also found to have accepted a $75,000 kickback
from Dale Mitchell for “cajoling” the wife of one of Epperson’s co-defendants’ into hiring the
lawyer as defense counsel for the co-defendant.” The co-defendant, Benny Hodge, was also
sentenced to death.*!°
Conclusion
The Kentucky Assessment Team on the Death Penalty applauds the Commonwealth of Kentucky
for creating a statewide independent appointing authority tasked with representing indigent
defendants charged with or convicted of a capital offense and for successfully removing the
judiciary and legislative branches from the attomey appointment process. Furthermore, the
Assessment Team applauds DPA for promulgating written policies, including those requiring
compliance with the ABA Guidelines. Specialized capital units within DPA and the Metro
Defender, coupled with these agencies’ monitoring of the qualifications and performance of
capital counsel under their supervision, significantly improve the quality of representation
available to Kentucky’s indigents in death penalty cases.
However, Kentucky has failed to require any Commonwealth entity to promulgate certification
procedures, applicable to all attorneys providing representation at all phases of capital
proceedings, including performance and training requirements and mechanisms to monitor
counsel performance in death penalty cases. Furthermore, it is unclear the extent to which DPA
and Metro Defender are able to adhere to internally-promulgated policies and guidelines. This
subjects capital defendants and death row inmates to a real risk that financial constraints of the
various agencies will affect the quality of representation afforded to them. The public defenders
must provide defense services in a growing number of cases with fewer resources.
Therefore, the Commonwealth is in partial compliance with Recommendation #3.
D. Recommendation #4
Compensation for Defense Team (Guideline 9.1 of the ABA Guidelines on the
Appointment and Performance of Defense C ounsel in Death Penalty Cases):
a. The jurisdiction should ensure funding for the full cost of high quality legal
representation, as defined by ABA Guideline 9.1, by the defense team and
outside experts selected by counsel.*"!
3% Burns v. Ky. Bar Ass'n, 318 S.W.3d 591, 592-93 (Ky. 2010).
309 Td. See supra text accompanying note 304 on Dale Mitchell.
310 Epperson v. Commonwealth, 809 S.W.2d 835 (Ky. 1991) (Hodge and Epperson were tried as co-defendants at
the same trial).
54 Tn order for a state to ensure funding for the “full cost of high quality legal representation,” it must be
responsible for “paying not just the direct compensation of members of the defense team, but also the costs involved
with the requirements of the[] Guidelines for high quality representation (e.g., Guideline 4.1 [Recommendation #1],
Guideline 8.1 [Recommendation #5]).” See ABA Guidelines, supra note 100, 984-85.
207
DPA is primarily funded through appropriations from the Kentucky General Assembly.
312
addition to funding the annual operational costs of DPA, the funds allocated to DPA also finance
two-thirds of the operating budget for the Metro Defender."
Department of Public Advocacy
DPA is one of nine entities that comprise Kentucky’s criminal justice system.*"* Table 2, below,
breaks down the expenditures for Kentucky’s criminal justice system for fiscal year 2009.*"°
Table 2
Kentucky Criminal Justice System A ctual Expenditures— Fiscal Y ear 20097”
In
Criminal Justice System Entity FY 2009 Actual Expenditures Percent of Total Expenditures
Judiciary $312,750,700 25.58%
State Police $166,044,300 13.58%
Juvenile Justice $107,540,200 8.79%
Criminal Justice Training $48,333,900 3.95%
Justice Administration $27,546,300 2.25%
Public Advocacy $36,635,100 3%
Corrections $451,222,000 36.90%
Prosecution $72,766,800 5.95%
TOTAL EXPENDITURES $1,222,839,300 100%
In fiscal year 2009, a year in which DPA represented clients at trial and during post-trial
proceedings in 147,245 cases, the Kentucky General Assembly allocated $37,826,300 to DPA.*!”
DPA was allocated the second smallest amount of funds within the criminal justice system,
totaling only three percent of the amount of money provided to these entities by the Kentucky
General Assembly.*!® A recent report by the U.S. Department of Justice’s Bureau of Justice
Statistics (BJS) found that in 2007, DPA had actual expenditures of $32,513,000, which was
5 OFFICE OF THE Ky. STATE BUDGET Dir., BUDGET OF THE COMMONWEALTH OF KENTUCKY, FISCAL YEARS
2010-2012 264, available at http://www.osbd.ky.gov/NR/rdonlyres/4C 8577D 6-9974-490F-8748-
CO6CEAC64E45/0/1012BOCVolumel.pdf [hereinafter 2010-2012 Ky. BupGET]; see also notes 49-69 and
accompanying text.
313° Ky, REV. STAT. ANN. §§ 31.050, 31.060 (West 2011). The operating budgets also include costs for both capital
and non-capital contract conflict counsel; DPA, in partnership with the Kentucky Bar Association, is able to
“contract with outside ‘conflict’ attomeys at hourly rates well below standard hourly rates,” paying an average of
$550 per non-capital criminal case. DPA 2010 ANNUAL REPORT, supra note 25, at 21.
34 DPA SERVICE PLAN, supra note 63, at 4.
315 DPA SERVICE PLAN, supra note 63, at 16.
316 Id.
317 DPA SERVICE PLAN, supra note 63, at 4 (noting that 32,637 cases were in the Commonwealth’s circuit courts
and 107,480 were in district court); but see Ky. DEp’T OF PuB. ADVOCACY, FISCAL YEAR 2009 DPA ANNUAL
CASELOAD Report 6, available at _ http://www.dpa.ky.gov/NR/rdonlyres/E58861E2-6EA C-4B 16-BF58-
4EEB4B529ACA/0/DPA_2009_CaseloadReportFINA Lpdf.pdf (noting that there were 144,878 cases opened by
trial attomeys in fiscal year 2009) [hereinafter 2009 DPA CASELOAD REPORT]. Note that this represents the General
Assembly’s allocations to DPA while the figures in Table 1 are DPA’s actual expenditures.
318 DPA SERVICE PLAN, supra note 63, at 16. See also Ky. DEp’T OF PuB. ADVOCACY, 4 LEGISLATIVE UPDATE
1999, FY 2000 CRIMINAL JusTICcE BUDGETS, TOTAL FUNDS, available at
http://apps.dpa.ky.gov/library/legupd/May99_LegUpdate.pdf (providing figures for fiscal year 2000, when DPA
received 2.7% of the total state funds from the criminal justice budget, when prosecutors received 7.23%).
208
only 8.9% of Kentucky’s total judicial and legal expenditures for that fiscal year."® This
represented the second lowest percentage of judicial and legal expenditures spent on public
defense, after Connecticut, out of states with capital punishment and a statewide public defender
program. 2°
In fiscal year 2010, DPA’s operating budget for providing indigent defense services was
$42,053,300. Comparatively, in fiscal year 2010, the Commonwealth's budget for
prosecution services, including funding for the Attomey General, Commonwealth’s A ttomeys,
and County Attomeys was $93,502,000. The Attomey General’s Office received
$23,832,600; the Commonwealth's Attorneys received a total of $38,069,100; and County
Attomeys received $31,600,300.° DPA represents the Commonwealth's indigent defendants in
cases prosecuted by the Attorney General, Commonwealth A ttomeys, and County Attorneys, and
receives less than half of the combined budgets of these three entities within the
Commonwealth's prosecutorial system. However, the Kentucky Death Penalty Assessment
Team notes that it was unable to determine parity of resources among prosecutors and indigent
defenders in Kentucky because it was unable to determine precise funding allocations to capital
cases for each entity.
Table 3, below, illustrates the variance in the amount of funding DPA has requested each fiscal
year, from 1999-2012, and the amount appropriated by the Kentucky General Assembly in the
corresponding year.
Table 3
DPA Requested versus Received from the Kentucky General Assembly
Fiscal Year | Requested (in $)" [ Enacted”? (in $) [ Difference (in $)
ale BJS Report, supra note 6, at 4-5 (noting that a “median of 15% of states’ legal and judicial direct expenditures
went to public defender programs”). Only four states with statewide public defender programs— Connecticut,
Hawaii, North Dakota and Rhode Island— spent a smaller percentage of their total judicial and legal expenses on
public defense. Connecticut is the only one of these four states that has a death penalty. Id. at 4. Moreover,
seventeen out of twenty-two states with statewide public defender programs spent more than Kentucky. Id.
320 See BJS REPORT, supra note 6, at 4.
321 2010-2012 Ky. BUDGET, supra note 312, at 265. This amount does not include receipts from federal grant
funds. This figure funds all of DPA’s responsibilities, including, but not limited to, administration of the statewide
defense system; providing technical aid to local counsel representing indigents at trial, on direct appeal, or during
post-conviction proceedings; developing standards, regulations, rules and procedures for the administration of
indigent defense throughout the Commonwealth; pursuing remedies to insure protection of the rights of persons with
disabilities; and purchasing liability insurance for all public advocates and contract counsel providing representation.
Ky. REV. STAT. ANN. § 31.030 (West 2011).
322 2010-2012 Ky. BUDGET, supra note 312, at 35-38. Only a portion of the Attorney General’s budget was spent
on criminal prosecutions since the Attomey General, “as the Commonwealth's constitutional chief law enforcement
officer, performs a range of legal, investigative, and administrative duties.” Id. County attorneys prosecute criminal
cases in District Court while the Commonwealth's Attomeys “are responsible for all felony prosecutions, including
those circuit court prosecutions in which the penalty of death may be imposed ....” Id. at 37; Ky. REV. STAT. ANN.
§§ 15.725, 15.715 (West 2011).
323 2010-2012 Ky. BUDGET, supra note 311, at 35-38.
3% This figure includes the amount of funding provided by the Commonwealth of Kentucky, including from the
General Fund (allocated by the Kentucky General Assembly) and the Restricted Fund (pursuant to statutory
authorities).
5 For fiscal years 2010, 2008, 2006, and 2000, the amount of funding appropriated to DPA during this year was
revised to include additional appropriations to DPA; for fiscal years 2011 and 2012, the enacted figure is the amount
recommended by the Kentucky General Assembly. See, e.g., 2010-2012 Ky. BUDGET, supra note 311, at 264.
209
2012 57,518,900 42,187,400 (15,331,500)
2011 51,121,900 42,163,400 (8,958,500)
2010 64,831,000 42,053,300 (22,777,700)
2009 61,714,823 36,043,000 (25,671,823)
2008 51,171,000 38,460,100 (12,710,900)
2007 47,573,600 36,588,000 (10,985,600)
2006 43,516,600 34,646,900 (8,869,700)
2005 38,844,200 34,626,500 (4,217,700)
2004 37,281,000 29,790,600 (7,490,400)
2003 32,605,300 28,379,400 (4,225,900)
2002 37,536,700 27,837,000 (9,699,700)
2001 33,817,500 25,380,000 (8,437,500)
2000 20,475,000 22,076,100 1,601,100
1999 20,698,500 20,992,900 294,400
Year after year, DPA is allocated significantly less funding than it requests." The Public
Advocacy Commission’s 2005 report, Justice Jeopardized, found that “Kentucky continues to
fund its system of indigent defense at a level that is at the bottom of the nation based upon the
cost-per-case benchmark.”*”” Justice Jeopardized found that in 2005, Kentucky spent $233 per
case, which is less than the amount spent by other states on indigent defense, such as Colorado,
which spent $889, Ohio $719; Alabama $603; North Carolina $435; Missouri $384; Georgia
$310; Maryland $306; and Virginia at $250.5 Justice J eopardized recommended that “[alt a
minimum, an additional $10 million per year is necessary to bring Kentucky into the mid-level
area in comparison with other programs in important benchmark areas such as cost-per-case.” °°
Funding deficits also have prohibited DPA and the Metro Defender from hiring the number of
attomeys needed to provide effective representation, creating significant and excessive caseloads
for full-time public defenders. The recent BJS Report stated that in 2007, DPA employed 327
full-time litigating attorneys but needed 636 to meet the U.S. Department of Justice’s National
Advisory Council caseload guidelines.**° However, in 2009, the Kentucky General Assembly
eliminated $2.3 million dollars from the budget allocated to DPA for that fiscal year, leaving
vacancies in sixty public defender positions across the Commonwealth.**! Without this funding,
328 SPANGENBERG GRP., ASSESSMENT OF INDIGENT DEFENSE COST RECOVERY IN FAYETTE AND JEFFERSON
County 2 (Oct. 30, 2001), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/ky-
costrecovery.pdf (“Despite the combination of state/county funding and the alternative revenue sources, DPA has
suffered from chronic under-funding.”) [hereinafter Ky. SPANGENBERG]. The Spangenberg Group is a national
research and consulting group that specializes in examination of indigent defense systems. See generally
SPANGENBERG GrP., http://www.spangenberggroup.com (last visited Jan. 31, 2011). See also supra Table 3. The
Kentucky Govemor’s budget for fiscal year 2010-2011 kept funding level to that of the previous fiscal year for DPA
and prosecutorial services in the Commonwealth, while most other state agencies were to receive less funding than
in previous fiscal years. Jason Riley, Prosecutors, public defenders spared more budget cuts, COURIER-J.
(Louisville, Ky.), Jan. 20, 2010.
327 JUSTICE JEOPARDIZED, supra note 192, at 1-2. Justice Jeopardized was created after the Commission received
testimony from Supreme Court Justices, Court of Appeals judges, public defenders, private bar counsel, judges,
prosecutors, and others. Id.
3 Td. at 14.
2° Td. at 1-2.
330 BJS REPORT, supra note 6, at 13. For more on caseloads, see Recommendation #8.
33 Lewis v. Hollenbach, Franklin Circuit Court Division II, Civil Action No. 08-CI-1094, at *11 (filed Jun. 30,
2008). According to the Commonwealth's then Public Advocate, Ernie Lewis, DPA’s budget problems began when
210
DPA planned “to stop taking cases involving multiple defendants charged with the same crime,
involuntary commitment cases, and family court cases— between 10,000 and 20,000 a year.” **
In June 2008, DPA, the Metro Defender, and private counsel who provide representation in
contract cases, jointly sued the Commonwealth, arguing that the Kentucky General Assembly
“failed to provide sufficient funding to an already overburdened, underfunded public defender
system.”*” After the Kentucky Governor provided DPA with an additional $2 million in May of
2009 and the Kentucky General Assembly provided an additional $1.7 million in a special
session, the Kentucky Supreme Court dismissed the lawsuit as moot. a
Capital Representation Costs
The Commonwealth spent an estimated $3,798,387 on indigent capital representation at trial, on
direct appeal, and during post-conviction proceedings in 2007.° However, this amount does
not include all costs associated with representation of Kentucky’s capital indigents in 2007, nor
does it include funding procured through KRS 31.185 for indigent defense services.*° The 2009
BJS Report found that in 2007 Kentucky was one of three capital jurisdictions with a statewide
public defender that spent more than $2 million on capital defense that year.°’ The Report also
noted that Kentucky public defender agencies received, by far, the highest number of felony
capital cases out of any state with a centralized public defender system.**
The Louisville Metro Public Defender’s Office
the Commonwealth's budget director “took $1.3 million of indebtedness from [fiscal year 2006] and moved it to
[fiscal year 2007]. As a result, DPA began [fiscal year 2007] in such a deficit that it was forced to implement a
hiring freeze and stopped paying bills altogether before [fiscal year 2008] began.” Exhibit 1, Affidavit of Emie W.
Lewis, Lewis v. Hollenbach, Franklin Circuit Court Division II, Civil Action No. 08-CI-1094, at *2 (2008).
32 Scott Michels, Facing Budget “Crisis,” Public Defenders May Refuse Cases, ABC News, June 13, 2008,
http://abcnews.go.com/TheLaw/story?id=5049461 &page=2 (last visited Nov. 2, 2010).
333° Lewis v. Hollenbach, Franklin Circuit Court Division II, Civil Action No. 08-CI-1094. at *3 (filed Jun. 30,
2008).
38 Ethical Funding Litigation, Ky. DEP'T oF Pus. ADvocacy, http://dpa.ky.gov/ci/efl.htm (last visited Nov. 2,
2010); DPA SERVICE PLAN, supra note 63, at 2. For more information on the underlying problems that caused DPA,
the Metro Defender and contract counsel to file for a declaratory judgment, see Recommendation #3.
335 Interview with DPA, supra note 12; Email from Ed Monahan, supra note 10. DPA asserts that “[e]stimating
death penalty costs to Kentucky since 1976 is difficult. A proper calculation of costs associated with the death
penalty statewide would require a formal study .... The majority of death penalty costs do not appear as line items
in any budget.” Letter to Norman W. Lawson, Jr., Committee Staff Admin’r of the Judiciary Comm., Legislative
Research Comm'n from Edward C. Monahan, Public Advocate, Ky. Dep’t of Pub. Advocacy (Feb. 25, 2009) (on
file with author).
336 Interview with DPA, supra note 12.
387 BJS REPORT, supra note 6, at 11. Connecticut and Virginia also spent over $2 million on capital defense. Id.
338 BJS REPORT, supra note 6, at 10. In 2007, capital jurisdictions with a statewide public defender included
Arkansas, Colorado, Connecticut, Delaware, Kentucky, Maryland, Missouri, Montana, New Hampshire, New
Jersey, New Mexico, Virginia, and Wyoming. Id. New Jersey repealed its death penalty statute in late 2007. Keith
Richburg, N.J. Approves Abolition of Death Penalty; Corzine to Sign, WASH. Post, Dec. 14, 2007,
http://www. washingtonpost.com/wp-dyn/content/article/2007/12/13/A R2007121301302.html. New Mexico
abolished the death penalty in 2009. Trip Jennings, Richardson abolished N.M. death penalty, NEw MEXICO INDEP.,
Mar. 18, 2009, available at http://newmexicoindependent.com/22487/guv-abolishes-death-penalty-in-nm.
211
Unlike the other 119 counties in the Commonwealth, Jefferson County provides substantial
funds to supplement DPA’s contribution to the Metro Defender’ s operational budget.*** In 2010,
DPA provided the Metro Defender with approximately $4 million, and the Louisville-Jefferson
County Metro Government allocated $2 million.“ DPA estimates that in 2007 the Metro
Defender spent approximately $540,000 on capital case representation.’ Table 4, below,
includes the total funding received by the Metro Defender from DPA and the Louisville-
Jefferson County Metro Government from fiscal years 2004 to 2011.”
Table 4
Funding Received by the Louisville Metro Public Defender’ s Office
Fiscal Y ear Amount Received (in $)
2004 4,606,100
2005 4,725,000
2006 5,143,000
2007 5,771,550
2008 6,071,100
2009 5,875,700
2010 6,035,700
2011 6,303,800
Unfortunately, we were unable to determine the specific amounts requested by the Metro
Defender. However, the Metro Defender’s Chief Public Defender maintains that “without
exception, in each and every fiscal year, the Metro Defender requested more than the Metro
Defender has received, despite providing detailed justification and documentation of [the Metro
Defender’s] needs.”*“° According to a 2001 report by the Spangenbery Group, the Metro
Defender has been underfunded since its inception in 1972.°“* The report identified a number of
causes for this, including a significant difference between the Metro Defender’s cost recovery
efforts to fund its public defender program compared to other organizations, such as the former
Fayette County Legal Aid, including (a) variations in indigency screening methodology, (b)
assessment of recoupment by judges, (c) availability of public defender services to indigent-but-
able-to-contribute clients, and (d) the collection practices of court clerks.3° Underfunding the
Metro Defender affects all aspects of its operations, including decreasing the number of staff and
amount of resources that are available for the provision of capital representation.
b. Counsel in death penalty cases should be fully compensated at a rate that is
commensurate with the provision of high quality legal representation and
339 Ky. REV. STAT. ANN. § 31.060 (West 2011); Ky. SPANGENBERG, supra note 326, at 1.
30 Ky, REV. STAT. ANN. §§ 31.050, 31.060 (West 2011); Petition for Declaratory Judgment, Lewis v. Hollenbach,
Franklin Cir. Ct. Div. II, Civil Action No. 08-CI-1094, at *11 (filed Jun. 30, 2008) (noting that the agreement
providing two-thirds from DPA and one-third from Louisville dates back to 1972). In fiscal year 2011, DPA
appropriated $4.2 million, and the Louisville-Jefferson County Metro Government provided $2.1 million. Interview
with DPA, supra note 12.
31 Email from Ed Monahan, supra note 10 (including capital contract conflict case expenditures).
32. Data provided by the Metro Defender. Interview with Daniel T. Goyette, supra note 101.
Interview with Daniel T. Goyette, supra note 101.
Ky. SPANGENBERG, supra note 326, at 3.
Ky. SPANGENBERG, supra note 326, at 5. Notably, Fayette County Legal Aid provided indigent representation
in every capital and non-capital case arising in Fayette County until it closed in 2007. Musgrave, supra note 9.
345
212
reflects the extraordinary responsibilities inherent in death penalty
representation.
i, Attorneys employed by defender organizations should be compensated
according to a salary scale that is commensurate with the salary scale of
the prosecutor’ s office in the jurisdiction.
DPA and the Metro Defender provide annual salaries to staff attorneys who represent capital
defendants and death row inmates based on a merit system.*“° Table 5, below, describes the
annual salaries of DPA’s CTB as of June 30, 2010.** Currently, attorneys within the Metro
Defenders Capital Trial Division receive salaries ranging between $56,000 and $90,000.*°
Table 5
Compensation of DPA Capital Trial Branch (CTB) (As of 1/31/11)™
Title Annual Salary Years Attorney Years CTB
Staff Attorney Manager $76,568 15 17 months
Staff A ttomey Supervisor $58,596 vacant Vacant
Staff Attorney $54,041 8 18 months
Staff Attorney $51,600 9 14.5 months
Staff Attorney $80,654 27 17.5 months
Staff Attorney $52,538 7 8 months
Staff Attorney Supervisor $82,680 36 12 years 11 months
Staff Attorney $58,500 14 17 months
Staff Attorney $54,041 12 2 years 6 months
Staff Attorney $53,558 Le, 18 months
Staff Attorney $77,575 27 17.5 months
Kentucky assistant public defenders with five or less years of experience eam a starting salary
between $46,900 and $60,000, and assistant public defenders with six or more years of
experience eam salaries that range from $51,600 to $60,000." DPA attomeys and contract
46 Compensation (Pay) Plan, Ky. Pers, CABINET, http://personnel.ky.gov/stemp/emphb/compen.htm (last visited
Oct. 7, 2010). In 1972, the year that Kentucky’s statewide public defender service was established, public defense
attorneys at DPA were paid $20 per hour for out-of-court work and $30 per hour for in-court work, with a $500
maximum for a misdemeanor case and $1,000 maximum for a felony. DPA, The KRS 31.185 Statewide Indigent
Defense Funds: Amount & Expenditures; Inflation, DPA FUNDING MANUAL 12, available at
http://dpa.state.ky.us/library/manuals/funds/ch12.html. At the time of DPA’s creation, the Kentucky Supreme Court
had recently held that Kentucky could not require an attorney to represent an indigent defendant absent
compensation. Bradshaw v. Ball, 487 S.W.2d 294 (Ky. 1972). In 1998, the Kentucky General Assembly authorized
DPA to set hourly rates and per case maximums, resulting in a compensation rate for capital defense attorneys of
$50 per hour with a maximum fee of $12,500; statutory maximums of $500 for a misdemeanor and $1,250 for a
felony were eliminated. H.B. 337, 1998 Gen. Assemb., Reg. Sess. (Ky. 1998).
347 Ky, Dep’T oF Pus. Apvocacy, Compensation of Capital Trial Branch, June 30, 2010 (on file with author).
According to the 2010 BJS Report, as of 2007, entry-level assistant public defenders in Kentucky eam salaries
ranging from $38,800 to $51,400. BJS REPORT, supra note 6, at 18. An entry-level assistant public defender at the
Metro Defender receives a salary of $38,770, an amount which has remained unchanged since 2007. Interview with
Daniel T. Goyette, supra note 101.
38 Interview with Daniel T. Goyette, supra note 101. Previously, attorneys within the Metro Defender’s Capital
Trial Division were paid $47,500 to $88,000; however, the Metro Defender recently increased some salaries on July
1, 2008. Id.
39 The table does not include trial attomeys in the Jefferson Branch of the Metro Defender.
350 BJS REPORT, supra note 6, at 18; Interview with DPA, supra note 12.
213
conflict counsel who provide representation during federal habeas corpus proceedings are
entitled to $178 per hour pursuant to the Criminal Justice Act.*°' The BJS Report also noted that
the maximum salary for an attorney with six or more years of experience from Kentucky was the
lowest of all nineteen states with a statewide public defender system that reported such
figures.” Given that in 2010 there were forty-four DPA regional trial branch staff attomeys
representing capital clients while carrying over 400 non-capital cases per year, it is clear that the
Commonwealth's public defenders providing indigent capital defense are woefully understaffed.
Moreover, DPA’s October 2011 Comparative Study of Kentucky Public Defender Salaries
revealed that Kentucky public defenders who handle death penalty cases make “31% less than
similarly experienced attorneys in surrounding states.” Average salaries for Kentucky's
public defenders in death penalty cases are the lowest of six surrounding capital jurisdictions,
including the Kentucky federal defender.** Furthermore, the average salary for a supervisor of
a regional public defender office in Kentucky is $68,572, which is 34% less than their
counterparts in the surrounding jurisdictions.*°°
The ABA Guidelines require that defense attorneys be compensated at a rate that is
commensurate with prosecuting attomeys within the jurisdiction.*°° Capital cases in Kentucky
are prosecuted at trial by Commonwealth's Attorneys and on appeal and during post-conviction
proceedings by the Kentucky A ttomey General’s Office of Criminal A ppeals.*°” The majority of
salaries paid to Commonwealth’s Attorneys are based on the merit system and “vary from county
to county based on experience, background and other factors” as governed by the KRS.*°*
While we were unable to determine the salaries of most Assistant Commonwealth's A ttomeys
throughout Kentucky, we were able to determine that some of the salaries of some assistant
Commonwealth's Attomeys in Jefferson County who prosecute death penalty cases range from
$56,832 to $73,416.°° This indicates approximate parity between the capital prosecutors and
351 Interview with Tim A mold, supra note 263; U.S. GUIDELINES FOR ADMINISTERING THE CJA, supra note 151.
352 BJS REPORT, supra note 6, at 19.
383 Ky. DEp’T. OF PuB. ADVOCACY, COMPARATIVE STUDY OF KENTUCKY PUBLIC DEFENDER SALARIES WITH
SURROUNDING STATES AND KENTUCKY FEDERAL DEFENDER 3 (Oct. 2011) [hereinafter DPA SALARY STuDY]. The
study compares the compensation of Kentucky public defenders to their counterparts in Illinois, Indiana, Missouri,
Ohio, Tennessee, Virginia, and the federal public defender. Id.
Id.
355 Td. (comparing supervisor salaries to the above-mentioned jurisdictions and West Virginia).
356 ABA Guidelines, supra note 100, at § 9.1(B)(2).
357 Ky, REV. STAT. ANN. § 15.020 (West 2011); OFFICE OF THE Ky. ATT’Y GEN., 2009 BIENNIAL REPORT 24
(2009).
358 See FAQs, OFFICE OF THE #COMMONWEALTH’S ATT’y, 30TH JUDICIAL Dist.,
http://www louisvilleprosecutor.com/faqs.htm (last visited Oct. 5, 2010); Compensation (Pay) Plan, Ky. PERS.
CABINET, http://personnel.ky.gov/stemp/emphb/compen.htm (last visited Oct. 7, 2010).
359 Kentucky Payroll Database, LEXINGTON HERALD-LEADER.COM,
http://www kentucky.com/2008/10/10/551569/search- the-kentucky-payroll-
database. html? appSession=661837411371008 (last visited Nov. 4, 2010) (indicating a monthly salary of $4,736);
Kentucky Payroll Database, LEXINGTON HERALD-LEADER.COM,
http://www kentucky.com/2008/10/10/551569/search- the-kentucky-payroll-
database. html? appSession=381837417851034 (last visited Nov. 4, 2010) (indicating a monthly salary of $4,790);
Kentucky Payroll Database, LEXINGTON HERALD-LEADER.COM,
214
defenders in this jurisdiction.*” General parity also exists among the highest level of
management within DPA, and the Commonwealth’s top prosecutor. The annual salary of DPA’s
Public Advocate is $104,178°*' which is only slightly less than the Commonwealth’s Attorney
General who receives an annual salary of $105,840.° However, it appears that
Commonwealth's Attorneys who prosecute capital cases earn substantially more than their
public defender counterparts. The salaries of DPA’s most experienced capital defense attorneys
range from $75,810°° to $86,131.% | Comparatively, as of 2010, every full-time
Commonwealth’s A ttomey in Kentucky earned an annual salary of $110,346.°°
ii. Flat fees, caps on compensation, and lump-sum contracts are improper in
death penalty cases.
iii. Appointed counsel should be fully compensated for actual time and service
performed at an hourly rate commensurate with the prevailing rates for
similar services performed by retained counsel in the jurisdiction, with no
distinction between rates for services performed in or out of court.
Periodic billing and payment should be available.
Currently, counsel contracted by DPA and the Metro Defender to undertake capital
representation are compensated at an hourly rate, with caps placed on the maximum amount of
compensation permitted.*°° Since February 1, 2004, conflict counsel contracted by DPA are
compensated at a rate of $75 per hour for in-court and out-of-court-work, up to $30,000 per
attorney plus reasonable expenses.*” Contracts for capital appellate cases and state post-
conviction actions negotiated after July 1, 2005 are permitted a maximum fee of $50,000 with
the same hourly rate of $75 per hour for in-court and out-of-court work. Additionally, for
http://www kentucky.com/2008/10/10/551569/search- the-kentucky-payroll-
database. html? appSession=447 183741450428 (last visited Nov. 4, 2010) (indicating a monthly salary of $6,118).
3° The Chief Public Defender at the Metro Defender noted that it observes a disparity of resources available to
defense counsel. For example, Jefferson County assistant Commonwealth A ttomeys have a laptop computer for use
in court proceedings; however, public defenders in Kentucky do not have the “benefit of a laptop, not to mention
various technological tools available to prosecutors during trial for things such as PowerPoint presentations.”
Interview with Daniel T. Goyette, supra note 101.
361 Government Salary Database, Ky. COURIER-JOURNAL.COM, http://datacenter.courier-
Joumal.com/govemment/salaries/ (type Monahan into the last name box) (last visited Nov. 3, 2010).
62 Id. (type Conway into last name box).
363 Government Salary Database, Ky. COURIER-JOURNAL.COM, http://datacenter.courier-
Joumal.com/govemment/salaries (type Griffiths into last name box) (last visited Nov. 3, 2010).
4 Government Salary Database, Ky; COURIER-JOURNAL.COM, http://datacenter.courier-
joumal.com/govemment/salaries (type Damon into last name box) (last visited Nov. 3, 2010).
5 Interview by Sarah Turberville with Willie Morrison, Research Assistant, Justice Programs Office, American
Univ., April 28, 2011 (on file with author). Kentucky’s six part-time Commonwealth A ttomeys eamed an annual
salary of $66,207 in 2010. Id.
368 See generally DPA POLICIES, supra note 97; Interview with DPA, supra note 12; Interview with Metro
Defender, supra note 43; Lewis v. Hollenbach, Franklin Circuit Court Division II, Civil Action No. 08-CI-1094, at
*5 (filed Jun. 30, 2008).
37 DPA POLICIES, supra note 97, at §§ 8.04(II)(A)(1), 8.04(II)(B)(2)(a) (used in the “representation of capital
clients on appeal from a final judgment at trial or from the appeal of a post-conviction case/s”). All motions,
pleadings, writs or other post conviction or new trial motions filed at the state circuit court level designed to bring
relief to the capital post conviction client in that forum, shall be deemed to be one action for purposes of this
$30,000 limit. DPA PoLictgs, supra note 97, at § 8.04(II)(B)(2)(b).
588 DPA POLICIES, supra note 97, at § 8.04(II)(B)(1)(b), (2)(a).
215
counsel filing a writ of certiorari to the U.S. Supreme Court, compensation cannot exceed $1,250
at a rate of $75 per hour.*” In the event that the writ is granted, “counsel and DPA will
renegotiate the terms of the contract and come to a mutual agreement on payment.”*”” The
Metro Defender compensates contract counsel in Jefferson County at a rate of $50 per hour, with
a cap of $15,000 per attomey at each stage of the capital proceedings.°”
DPA’s contract counsel must provide an itemized bill to the appropriate Branch Manager who
approves and authorizes the payment of conflict fees.°”” Contract counsel are “eligible for
reimbursement for meals, lodging and mileage, with the same restrictions as full-time employees
of the Commonwealth” and may bill DPA quarterly for costs incurred.°”* Attomeys who
contract with the Metro Defender are not permitted periodic billing; instead, contract counsel are
paid at the completion of each stage of the proceedings, except when counsel requests and
receives funds from the Commonwealth pursuant to court orders under KRS Chapter 31.°”
While DPA and the Metro Defender should be commended for not distinguishing payment based
upon in or out-of-court work, any maximum caps on compensation in death penalty cases is
inappropriate. The disparity between the compensation rates of capital counsel contracted by
DPA and the Metro Defender also illustrates that counsel are not compensated at a rate
commensurate with the provision of high quality legal representation. Similarly, the
Commission noted the importance “in a full-time system [of indigent defense] to continue the
involvement of the private criminal defense bar. That bar will not participate if funding is so low
that it cannot even cover the cost of overhead.”*”° Comparatively, the hourly compensation rates
available for legal services contracted by other Kentucky state agencies is far greater than that
available to attorneys contracted by the public defender to represent a capital defendant or death
row inmate.°”° Furthermore, contract counsel are not always fully compensated for their time
and resources. The Commission also found that “[p]rivate attorneys working as conflict counsel
for DPA trial offices are not being paid sufficiently. In many instances, private attomeys are not
being reimbursed for their costs, and are thus working pro bono on indigent defense cases,”
including capital cases.°””
om DPA POLICIES, supra note 97, at § 8.04(II)(B)(1)(c).
Id.
31 Interview with Metro Defender, supra note 43. Shortly after the Metro Defender’s rate of compensation for
their contract conflict counsel was increased to provide the same rate as DPA, DPA’s rate was increased once again,
and the Metro Defender has not received an increase since. Id.
32 DPA POLICIES, supra note 97, at §§ 8.04(II)(A)(6) (noting that the Division Director must maintain “an
accounting of all outstanding post trial capital contracts, all claims paid, and the amount of money paid on all closed
post-trial level capital contract”), 8.04(II)(B)(5) (same). Upon approval, claims for payment shall be submitted by
this Director to the Law Operations Division, which will pay all claims as soon as practical following receipt of the
Director's authorization. DPA POLICIES, supra note 97, at § 8.04(II)(A)(6), (B)(5).
373 DPA POLICIES, supra note 97, at § 8.04(II)(A)(5), (B)(3).
3™ Interview with Daniel T. Goyette, supra note 101.
375 JUSTICE JEOPARDIZED, supra note 192, at 19.
376 See Ky. LEGISLATIVE RESEARCH COMM’N, Gov’T CONTRACT REVIEW COMM., Legal Services: Duties and
Maximum Rate Schedule, Policy Statement 99-1 (amended Jan. 8, 2002), available at
http://www .lrc.ky.gov/Statcomm/Contracts/homepage.htm. The rate available for “personal service contracts for
legal services” is $125 per hour. Id.
37” JusTICE JEOPARDIZED, supra note 192, at 14; Interview with Tom Griffiths, supra note 24.
216
The Kentucky Assessment Team also notes that, historically, counsel who contracted with DPA
prior to February 1, 2004 were compensated at a rate of $50 per hour for work in-court and out-
of-court, for up to 400 hours, with a maximum fee of $20,000 per attorney.°” If the case went to
trial, counsel was permitted to be compensated for up to 200 additional hours, although the
compensation could not exceed a total of $30,000.°”? The Metro Defender set maximum
compensation amounts for contract counsel in capital cases between $5,000 and $7,500 until the
cap reached its current level of $15,000.°° Notably, most death row inmates in Kentucky were
sentenced to death when compensation rates for contract counsel were far below today’s
levels.**! For example, in 1981, Harold McQueen, one of three Kentucky death row inmates to
be executed, was represented at his capital murder trial by an attorney who was paid $1,000.
c. Non-attorney members of the defense team should be fully compensated at a
rate that is commensurate with the provision of high quality legal
representation and reflects the specialized skills needed by those who assist
counsel with the litigation of death penalty cases.
i. Investigators employed by defender organizations should be compensated
according to a salary scale that is commensurate with the salary scale of
the prosecutor’ s office in the jurisdiction.
ii. Mitigation specialists and experts employed by defender organizations
should be compensated according to a salary scale that is commensurate
with the salary scale for comparable expert services in the private sector.
iii. Members of the defense team assisting private counsel should be fully
compensated for actual time and service performed at an hourly rate
commensurate with prevailing rates paid by retained counsel in the
jurisdiction for similar services, with no distinction between rates for
services performed in or out of court. Periodic billing and payment should
be available.
DPA and Metro Defender budgets must include the cost of compensation for investigators and
mitigation specialists. Prosecutors’ budgets in the Commonwealth may include costs for
employment of non-lawyer staff to assist in prosecution of capital cases, but need not include the
cost of investigative services provided by law enforcement agencies, such as local and state
police, sheriff's offices, the Kentucky State Police Crime Laboratory, the statewide medical
examiner's office, or county coroners’ offices.
DPA and the Metro Defender
38 DPA POLICIES, supra note 97, at § 8.04(II)(A)(2), (B)(3). This payment scheme applies to all cases in which
representation was entered into before the rate increase was established and continued after the 2004 rate increase
came into effect. DPA POLICIES, supra note 97, at § 8.04(II).
379 DPA POLICIES, supra note 97, at § 8.04(II)(A)(3).
380 Interview with Metro Defender, supra note 43.
381 Two death sentences were imposed from 1976-1979; forty-five death sentences were imposed from 1980-
1989; twenty-seven death sentences were imposed from 1990-1999; and nineteen death sentences were imposed
from 2000-February 2010. See Ky. Dep’T oF Pus. ADvocacy, Number of Death Sentences Imposed in Kentucky
Per Year Since 1976, Feb. 26, 2010 (on file with author).
3® Jaime Lucke, A path to healing, but not legislation, LEXINGTON HERALD-LEADER (July 1, 2007); McQueen
Files Appeals Attempts to Avoid Chair Repeat Initial Arguments, CINCINNATI-KY. Post (June 24, 1997).
217
DPA and the Metro Defender employ staff investigators and mitigation specialists and also may
petition the court for funding to support payments for expert services.**’ The Metro Defender’s
capital investigator receives a salary of $40,500 per year and the mitigation specialist receives
$31,500 a year.* DPA and the Metro Defender also employ paralegals to assist in the provision
of indigent defense representation; the Metro Defender’s paralegals, capital and non-capital,
receive a salary ranging from $34,250 to $38,250.%° DPA investigators are compensated
between approximately mid-twenty to low-thirty thousand dollars per year and all non-attorney
defense team members are restricted from receiving compensation for more than 37.5 hours of
work per week.“ Also due to limited resources, DPA has sought KRS 31.185 funds to obtain
contract mitigation specialists to assist with an additional twelve capital cases at trial.°°”
However, because we were unable to determine the salaries of investigators, mitigation
specialists and paralegals in the Commonwealth's Attomeys’ or Attorney General's offices, we
are unable to determine whether there is parity between public defense and public prosecution
within the Commonwealth.
Defense Team in Cases Represented by Contract Counsel
Pursuant to KRS 31.185, private attorneys who contract with DPA and the Metro Defender to
provide capital representation may have access to experts who are “reasonably necessary,” if
counsel first demonstrates that use of Commonwealth facilities is impractical.*®* As discussed in
Recommendation #1, there is no statutory cap on defense counsel’s access to KRS 31.185
funding and it appears Kentucky courts do grant to defense counsel sufficient funds at the trial
level. However, Kentucky courts permit only limited access to funding for experts during
post-conviction proceedings.” g
It is unclear to what extent a privately-retained investigator or mitigation specialist is
compensated in the Commonwealth. We were unable to determine whether funds granted under
KRS 31.185 are sufficient to compensate mitigation specialists, investigators, or other necessary
expert defense witnesses according to a salary scale that is commensurate with the salary scale
for comparable expert services in the private sector. Periodic billing is available for expert and
other ancillary services.*"
383 Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43; Ky. REV. STAT. ANN. §
31.185 (West 2011).
584 Interview with Daniel T. Goyette, supra note 101.
38 Td. Prior to July 1, 2008's salary increase, the Metro Defender’s capital investigator received a salary of
$39,500, the mitigation specialists received $30,000, and paralegals received $33,000. Id.
386 See supra notes 130, 168, 176, 199 and accompanying text.
387 Email from Ed Monahan, supra note 10; see supra note 200 and accompanying text.
388 Ky. REV. STAT. ANN. § 31.185 (West 2011); Mills v. Messer, 268 S.W.3d 366, 367 (Ky. 2008); Hodge v.
Coleman, 244 S.W.3d 102, 108 (Ky. 2008) (overruling Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005) (“has
determined that the [] petition sets forth allegations sufficient to necessitate an evidentiary hearing”).
389 See supra notes 195-208 and accompanying text.
39 Ky, REV. STAT. ANN. § 31.185(5) (West 2011); supra notes 205-208 and accompanying text.
31 See Email from Ed Monahan, supra note 10; McCracken Cnty. Fiscal Court v. Graves, 885 S.W.2d 307 (Oct.
1994).
218
d. Additional compensation should be provided in unusually protracted or
extraordinary cases.
In cases in which private counsel is contracted by DPA to provide representation at trial, DPA
policy permits waiver of the maximum fee of $30,000 per attorney “[i]n limited
circumstances.”*°? Circumstances where a waiver may be appropriate include “extraordinary
complex or time-consuming pretrial investigation or motion practice or an unusually long jury
trial.”°°? Contract conflict counsel must submit to the Public Advocate a written request,
including a justification of the waiver, prior to reaching $25,000 expended.** On appeal or
during post-conviction proceedings, contract conflict counsel are compensated at a rate of $75 an
hour with a $50,000 presumptive maximum fee per attomey per case.°*° Although DPA policy
states that there may be additional compensation available to trial contract counsel,°”* there is no
corresponding policy relating to contract conflict counsel providing representation on direct
appeals or during post-conviction proceedings. DPA attorneys and contract counsel providing
representation during federal habeas corpus proceedings are entitled to payment pursuant to the
Criminal Justice Act, at $178 per hour, and there is no statutory maximum on compensation.**”
The Metro Defender does not permit additional compensation or reimbursement for an unusually
protracted and extraordinary case in excess of its $15,000 cap on attorneys’ fees and reasonable
expenses for each stage of the proceeding.**® Furthermore, we are unaware of any instances in
which DPA or the Metro Defender has permitted additional reimbursement in unusually
protracted and extraordinary cases.
e. Counsel and members of the defense team should be fully reimbursed for
reasonable incidental expenses.
In most instances, DPA and Metro Defender attomeys who represent capital defendants and
death row inmates, as salaried employees, are provided with the resources for funding the
incidental costs associated with representation of capital defendants and death row inmates.”
DPA permits contract counsel providing capital representation to be compensated in addition to
“reasonable expenses.”“"° Reasonable expenses are “specific out-of-pocket costs related to
representation of the client, and do not include any portion of the ordinary costs of operating
3% DPA POLICIES, supra note 97, at § 8.04(II)(A)(3). Additional compensation is not provided for handling capital
felony trials, appeals or post-conviction proceedings in which DPA or the Metro Defender provided representation,
as these attomeys are salaried employees.
393 Id.
3 DPA POLICIES, supra note 97, at § 8.04(II)(A)(4). The Public Advocate’s decision to grant or deny a waiver of
the maximum fee is final. DPA POLICIES, supra note 97, at § 8.04(II)(A)(3).
3% DPA POLICIES, supra note 97, at § 8.04(II)(B)(1)(b).
3% DPA POLICIES, supra note 97, at § 8.04(II)(A)(3).
U.S. GUIDELINES FOR ADMINISTERING THE CJA, supra note 151 and accompanying text.
Interview with Daniel T. Goyette, supra note 101.
Ky. REV. STAT. ANN. §§ 31.185, 31.110 (West 2011). For example, because it is a state agency, DPA receives
a state car and fuel paid for by the Commonwealth for travel required in indigent defense representation. Interview
with Tom Griffiths, supra note 24.
“DPA PoLicigs, supra note 97, at § 8.04(II)(A)(1)-(2), (B)(1)(b), (B)(2)(a).
219
Counsel’s law office, such as secretarial time, typing costs, or in-office copying costs.”*" The
Metro Defender reimburses contract conflict counsel for reasonable incidental expenses, such as
mileage and copy costs; the $15,000 per attorney cap is strictly for the attomey’s time spent on
the case.
Conclusion
Kentucky's funding of the costs associated with providing legal representation for capital
defendants and death row inmates at trial, on direct appeal, and during capital post-conviction
proceedings, as well as the approximate parity of salary between some defenders and prosecutors
in the Commonwealth, bring Kentucky into partial compliance with Recommendation #.
However, there are significant funding and compensation deficiencies that must be ameliorated
in order to ensure capital defendants and death row inmates in the Commonwealth receive the
quality of representation required in cases where a life is at stake, including
« An increase in funding to the Commonwealth's defender agencies which would
permit the provision of high quality legal representation in the approximately 100
capital cases handled by the defender agencies each year;
« Ensuring that an equal salary scale exists among defense attorneys and prosecutors
who handle capital cases;
« Ensuring that the Commonwealth’s defender agencies receive funding sufficient to
compensate non-attorney members of the defense team for necessary work performed
to provide high quality representation consistent with the ABA Guidelines and
sufficient to hire additional investigators and mitigation specialists as needed; and
« Removal of the cap placed on compensation to contract counsel in death penalty
cases and provision of uniform compensation rates for conflict counsel who contract
with the Metro Defender and DPA, commensurate with prevailing rates for retained
counsel in Kentucky, and a guarantee of payment to private counsel contracted to
handle death penalty cases.
E. Recommendation #5
Training (Guideline 8.1 of the ABA Guidelines on the Appointment and
Performance of Defense C ounsel in Death Penalty Cases)
a. The jurisdiction should provide funds for the effective training, professional
development, and continuing education of all members of the defense team.
The Kentucky General Assembly’s biennial budget appropriation to DPA, as well as a $100,000
federal grant from the U.S. Department of Justice’s Bureau of Justice Assistance (BJA), permits
DPA to provide effective training, professional development, and continuing education for all
401 Ky, Dep’T oF Pus. ADvocacy, Conflict Contract for FY11 (2010) (on file with author) (“The cost of copying
of court, medical, or other client records, whether video, audio, or paper, shall be bome by the Commonwealth,
Finance and Administration Cabinet, upon an appropriate Court order, consistent with the provisions of KRS 31.185
and 31.200.”).
‘© Interview with Daniel T. Goyette, supra note 101.
220
members of its capital defense teams.’°? DPA policy requires that the Education and Strategic
Planning Branch “provide employees responsible for the representation of death penalty clients
with the education necessary for high quality service to the client at every stage of the process:
pretrial, trial, penalty phase, appeal, and post-conviction.”4™
Funding from the General Assembly and federal grants support DPA-sponsored trainings and
conferences, as well as DPA’s co-sponsorship of capital litigation trainings available to capital
defense attorneys throughout the Commonwealth.“ For example, $5,000 is allocated from
DPA’s operating budget to support training on capital voir dire case law and workshops on
conducting individual voir dire in capital cases.“°° The BJA’s Capital Case Litigation Initiative
grant supports DPA’s annual five-day capital practice institute for all members of the capital
defense team, five regional one-day death penalty training events, the development of a new
manual on capital defense, creation of a motion bank for capital litigation, and twenty case
reviews annually.‘°”
The Metro Defender also offers periodic trainings on a variety of capital and non-capital issues,
including litigation skills; pleading and motion practice; applicable state, federal, and
intemational law; and regular, ongoing multi-disciplinary case reviews.“ Metro Defender
attommeys and contract counsel actively involved in a capital case are able to attend, free of
charge, any DPA-sponsored training program or conference.“
In addition, DPA and the Metro Defender reserve a portion of their operating budgets to obtain
grants and secure scholarships from national organizations to support staff member attendance at
national capital defense training conferences,’’° including the NAACP Legal Defense and
Education Fund’s Annual Capital Punishment Training Conference; the Darrow Defense
College, a week-long annual seminar cosponsored by DePaul University’s Center for Justice in
Capital Cases and the University of Michigan; the National Legal Aid and Defender
Association’s annual Life in the Balance conference; and the Santa Clara Death Penalty College,
among others.*! If financial resources are available, DPA and the Metro Defender may support
403 Interview with Glenn McClister, supra note 173.
44 DPA POLICIES, supra note 97, at § 12.19(VII)(A). In addition, DPA requires all new staff attorneys to
successfully complete the Kentucky Public Defender College, a three-week training program that includes extensive
instruction and interactive learning on relevant Kentucky law and procedure; trial skills; district, juvenile, and circuit
court practice; and training on other subjects such as evidence, mental health, and preservation of evidence. Glenn
S. McClister, KPDC’s Recent Past and Hopeful Future, http://dpa.ky.gov/NR/rdonlyres/3B 98E4C8-DFBA-4552-
885A -40272FE5A ECF/0/K PDC 200verview.pdf. The trial skills training portion of KPDC is a nationally-known
week-long trial skills institute, called Faubush, which uses actual on-going cases as practice. Id
495 Interview with Glenn McClister, supra note 173; Email from Tom Griffiths, supra note 168.
406 Interview with Glenn McClister, supra note 173.
47 Id; BJA Programs, BUREAU OF JUSTICE ASSISTANCE, DEP'T OF JUSTICE,
http://www.ojp.usdoj.gov/BJA /grant/CCLI.html (last visited Oct. 29, 2010).
408" Interview with Metro Defender, supra note 43; Interview with Daniel T. Goyette, supra note 101.
409 Interview with Daniel T. Goyette, supra note 101.
410 Id.; Interview with DPA, supra note 12; Interview with Glenn McClister, supra note 173; Email from Tom
Griffiths, supra note 168; Interview with Metro Defender, supra note 43.
“1 See Annual Capital Defense Training College, NAACP-LDF, http://naacpldf.org/event/naacp-legal-defense-
and-educational-fund-inc-31st-annual-capital-punishment-training-conferenc (last visited Nov. 2, 2010); Training
and Conferences, NAT'L LEGAL AID & DEFENDER ASS'N,
http://www.nlada.org/Training/Train_Defender/Train_Defender Balance (last visited Oct. 12, 2010); Darrow
221
capital defense attorneys’ attendance at non-capital national training sessions, such as the
National Criminal Defense College’s Trial Practice Institute and the Advanced Cross-
Examination Theories and Themes Seminar. "””
The Commonwealth is in compliance with this portion of Recommendation #5.
b. Attorneys seeking to qualify to receive appointments should be required to
satisfactorily complete a comprehensive training program, approved by the
independent appointing authority, in the defense of capital cases. Such a
program should include, but not be limited to, presentations and training in
the following areas:
i. Relevant state, federal, and international law;
ii. Pleading and motion practice;
iii. Pretrial investigation, preparation, and theory development regarding
guilt/innocence and penalty;
iv. Jury selection;
v. Trial preparation and presentation, including the use of experts;
vi. Ethical considerations particular to capital defense representation;
vii. Preservation of the record and of issues for post-conviction review;
viii. Counsel's relationship with the client and his/her family;
ix. Post-conviction litigation in state and federal courts;
x. The presentation and rebuttal of scientific evidence, and developments in
mental health fields and other relevant areas of forensic and biological
science.
c. Attorneys seeking to remain on the roster or appointment roster should be
required to attend and successfully complete, at least once every two years, a
specialized training program approved by the independent appointing
authority that focuses on the defense of death penalty cases.
The Kentucky Supreme Court Rules require all attorneys admitted to the Kentucky Bar to
complete a minimum of twelve and a half hours of continuing legal education every year, which
must include at least two hours of training on legal ethics, professional responsibility, or
professionalism.*!° Apart from these general CLE requirements, the Commonwealth does not
require specialized training for attorneys seeking to qualify for appointment to a capital case at
trial, on direct appeal, during post-conviction proceedings, or during clemency. However, DPA
and the Metro Defender both require specialized training for staff attorneys, contract counsel in
death penalty cases, and other members of the capital defense team.*”*
Defense College, CTR. FOR JUSTICE IN CAPITAL CASES, DEPAUL UNIV.,
http://www.law.depaul.edu/centers_institutes/cjcc/darrow.asp (last visited Oct. 12, 2010); The Bryan R.
Shechmeister Death Penalty College, SANTA CLARA UNIV. SCHOOL OF Law, http://law.scu.edu/dpc/index.cfm (last
visited Nov. 4, 2010).
412 Interview with DPA, supra note 12; Interview with Metro Defender, supra note 43. See Trial Practice Institute,
NAT'L CRIMINAL DEF. COLL., http://www.ncdc.net/tpi/index.html (last visited Nov. 5, 2010); Advanced Cross
Examination, NAT’L CRIMINAL DEF. COLL., http://www.ncdc.net/adx/index.html (last visited Nov. 5, 2010).
“3 SCR 3.661(1) (requiring completion of attendance by June 30th of each year).
44 See generally, DPA POLICIES, supra note 97; Interview with Daniel T. Goyette, supra note 101.
222
DPA policy requires all public defenders that provide capital representation to satisfactorily
complete a comprehensive training program on each of the areas listed in subsection b of this
Recommendation, in conformance with the ABA Guidelines.’ Additionally, DPA public
defenders are required to attend training on the “unique issues relating to the Racial Justice Act
and representation of mentally retarded capital defendants who are charged with committing
capital offenses.”“!° DPA policy on death penalty cases states that “no attorney shall be assigned
representation in a death penalty case unless that attorney has attended the Department's periodic
Death Penalty education,” absent approval of the Trial Division Director.""”
DPA policy also requires staff attorneys who represent capital clients to attend and successfully
complete a specialized capital defense training program at least once every two years.‘!® For
example, DPA sponsors a Death Penalty Litigation Persuasion Institute every two years, where
participants discuss their cases with experienced faculty.*"® DPA typically also offers a series of
capital training sessions at its Annual Litigation Conference, which all DPA attorneys are
required to attend.”° In addition, DPA attorneys representing death row inmates in post-
conviction proceedings strive to attend federal habeas corpus litigation training every year."”
We were, however, unable to determine the extent to which DPA enforces these training
requirements on all members of the capital defense team.
Furthermore, DPA policy requires contract counsel in death penalty cases to complete a
comprehensive training program, approved by DPA, on each of the subject areas called for by
this Recommendation, in addition to specialized training on Kentucky’s Racial Justice Act and
representation of mentally retarded capital offenders.**” According to DPA, it has sought to
ensure that private counsel have successfully completed such training before entering into
contract for representation; however, enforcement of this requirement has been sporadic,
particularly because it is difficult for DPA to locate private attorneys who meet the requisite
criteria.
The Metro Defender’s staff attorneys providing capital representation at trial, on direct appeal,
and during post-conviction or clemency proceedings attend the Metro Defender’s capital
training, DPA-sponsored trainings including its Capital Practice Institute, and may be provided
“5 DPA POLICIES, supra note 97, at §§ 17.21(1), 12.21, 12.04(1)(B), 17.20(1)(G), 4.22(II1)(C).
“© DPA POLICIES, supra note 97, at §§ 12.04(1)(B), 17.21(1), 17.20(1)(G), 4.22(1I1(C). For more information on
unique issues such as Kentucky's Racial Justice Act and Kentucky law on capital punishment and mental retardation
and mental illness, please see Chapters Twelve and Thirteen.
417 DPA POLICIES, supra note 97, at § 17.20(1)(G).
418 DPA POLICIES, supra note 97, at §§ 12.04(1)(B), 8.04(1)(C), 17.20(1)(G).
419 Interview with Glenn McClister, supra note 173. Prior to 2007, the Death Penalty Litigation Persuasion
Institute was held every three years. Id.
20 Interview with Glenn McClister, supra note 173.
“1 Interview with Tim Amold, supra note 263.
422 DPA POLICIES, supra note 97, at § 8.04(1)(C)(3) (listing all of the subdivisions of the ABA Guideline and
Recommendation #5). DPA will offer incentives, including reduced rates or payment of hotel rooms, to promote
contract conflict counsel attendance at DPA and other national capital defense trainings. Id.
“5 Interview with Tim Arnold, supra note 263. However, DPA states that currently all of its contractors handling
capital direct appeals and post-conviction proceedings meet the training criteria. Id.
223
the opportunity to attend other national training seminars, if financial resources are available.‘~*
Prior to assignment to the capital division, Metro Defender attomeys are required to participate
in an orientation and training program, which includes education on relevant law, mock
exercises, and a review of capital trial videotapes.’” In addition, new Metro Defender attomeys
attend a national training at the outset of their assignment to the Capital Trial Division, such as
Life in the Balance.”° They are also required to participate in regular, on-going multi-
disciplinary case reviews and in-house trainings on particular aspects of capital litigation and
death penalty issues, including recent developments in the law and new litigation techniques. *”
While a Metro Defender attorney will Hot be assigned a capital case until the attomey has
received extensive capital case training,‘”® we were unable to determine whether the required
training program covers the range of topics called for by this Recommendation.
Conflict counsel that contracts with the Metro Defender to provide capital representation will not
be appointed to a capital case unless they have undergone capital training or have prior capital
litigation experience. ”? However, we were unable to determine whether they receive, at least
every two years, the required training covering the range of topics called for by this
Recommendation.
d. The jurisdiction should ensure that all non-attorneys wishing to be eligible
to participate on defense teams receive continuing professional education
appropriate to their areas of expertise.
The Commonwealth does not have any mechanisms in place that ensure all non-attorneys on
capital defense teams receive continuing professional education appropriate to their areas of
expertise. However, DPA and the Metro Defender require training for non-attorney members of
the defense team, including investigators, mitigation specialists, paralegals, social workers, and
sentencing specialists.’ DPA also publishes relevant educational materials and sponsors
continuing professional education courses for non-attorney members of the defense team,
available to DPA and non-DPA professionals, such as DPA’s 2010 Litigation Persuasion
Institute, which provided an “Investigator Case Preparation Track.”“! DPA also permits Metro
Defender non-attomey members of defense teams to attend any DPA trainings.**”
424
Interview with Metro Defender, supra note 43; Interview with Daniel T. Goyette, supra note 101.
425,
bs Interview with Daniel T. Goyette, supra note 101.
att
“28 Interview with Metro Defender, supra note 43.
‘29. Interview with Daniel T. Goyette, supra note 101.
430 DPA POLICIES, supra note 97, at §§ 12.04(C)(1) (Required Defender Education), 12.03 (Required Sharing of
Education By All Staff), 12.20 (Paralegal Training), 12.21 (DPA Capital Trial Practice Institute), 12.19 (Education
Standards). In addition, DPA has staff criminal defense investigators certified by the Criminal Defense
Investigation Training Council to serve as certified training instructors. C.D.I.T.C. Accredited Seminars & Training
Programs, CRIMINAL DEF. INVESTIGATION TRAINING COUNCIL, http://www.defenseinvestigator.com/seminars.html
(last visited Oct. 12, 2010).
‘St DPA POLICIES, supra note 97, at §12.19(IV)(E); Education Overview, Ky. DEP’T OF PuB. ADVOCACY,
http://dpaky.gov/ed (last visited Oct. 29, 2010); Education Calendar 2010, Ky. Dep’T oF Pus. ADVOCACY,
http: //dpa.ky.gov/ed/ecal.htm (last visited Oct. 12, 2010); Interview with Glenn McClister, supra note 173.
432" Interview with Metro Defender, supra note 43.
224
Conclusion
DPA and the Metro Defender provide extensive training to the Commonwealth’s public
defenders, including DPA and Metro Defender attomeys, private counsel contracted by these
agencies to handle death penalty cases, and other members of the defense team. However,
because the Commonwealth does not require all attorneys, including public defenders, court-
appointed counsel, and privately-retained counsel seeking appointment to a death penalty case, to
successfully complete a specialized training program that focuses on the defense of death penalty
cases at least once every two years, the Commonwealth only partially complies with this portion
of the Recommendation.
Accordingly, the Kentucky Death Penalty Assessment Team recommends that the
Commonwealth adopt mandatory training requirements for all attorneys and members of the
defense team seeking to handle a capital case during any stage of the proceedings. Such a
program should include, at a minimum, presentations and trainings in the areas listed within
Recommendation #5 so that they are consistent with the ABA Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty Cases.
229
226
CHAPTER SEVEN
THE DIRECT APPEAL PROCESS
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
Every defendant who receives a death sentence is, by statute, entitled to one level of appellate
review, known as the direct appeal. As the U.S. Supreme Court stated in Barefoot v. Estelle,
“[d]irect appeal is the primary avenue for review of a conviction or sentence, and death penalty
cases are no exception.”’ The direct appeal process in capital cases is designed to correct any
errors in the trial court’s findings of fact and conclusions of law and to determine whether the
trial court’s actions during the guilt and sentencing phases of the trial were unlawful, excessively
severe, or an abuse of discretion.
One of the best ways to ensure a meaningful direct appeal process is comparative proportionality
review. Comparative proportionality review is the process through which a death sentence is
compared with sentences imposed on similarly situated defendants to ensure that the sentence is
not disproportionate. Meaningful comparative proportionality review helps to ensure that the
death penalty is being administered in a rational, non-arbitrary manner; provide a check on broad
prosecutorial discretion; and prevent discrimination from playing a role in the capital decision-
making process.
Comparative proportionality review is the most effective method of protecting against
arbitrariness in capital sentencing. In most capital cases, juries determine the sentence, yet they
do not have the information necessary to evaluate the propriety of that sentence in the case
before them in light of sentences in similar cases. In the relatively small number of cases in
which the trial judge determines the sentence, proportionality review still is important, as the
judge may be unaware of statewide sentencing practices or be affected by public or political
pressure. Regardless of who determines the sentence, dissimilar results are virtually ensured
without the equalizing force of proportionality review.
Simply stating that a particular death sentence is proportional is not enough, however. More
than merely citing previous decisions, a court conducting proportionality review ought to analyze
the similarities and differences between those past decisions and the case before it. By weighing
the appropriateness of a death sentence from a statewide perspective, a reviewing court achieves
the important ends of proportionality review while properly leaving to local prosecutors and
juries the decisions, in the first instance, of whether the death penalty ought to be sought and
whether it ought to be imposed.
Finally, for proportionality review to be truly effective in ensuring the rational, non-arbitrary
application of the death penalty, it must include not only cases in which a death sentence was
imposed but also cases in which the death penalty was sought but not imposed and cases in
which the death penalty could have been but was not sought.
| Barefoot v. Estelle, 463 U.S. 880, 887 (1983).
227
Because of the role that meaningful comparative proportionality review can play in eliminating
arbitrary and excessive death sentences, states that do not engage in the review, or that do so
only superficially, substantially increase the risk that their capital punishment systems will
function in an arbitrary and discriminatory manner.
228
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
A. Direct Appeal Procedures
A defendant may challenge his/her conviction and death sentence by filing a direct appeal with
the Kentucky Supreme Court.” In order to pursue an appeal, the defendant must file a notice of
appeal in the trial court within thirty days of the entry of the judgment or within thirty days of the
trial court’s entry of an order denying a new trial.’ In practice, Kentucky’s public defender
agencies represent death-sentenced inmates on direct appeal.*
To ensure that the appropriate materials are provided to the Kentucky Supreme Court, an
appellant must file, with the clerk of the trial court, a designation of un-transcribed material
within ten days from the filing of the notice of appeal.” The designation should list any un-
transcribed portions of the proceedings that the defendant wishes to have included in the record
on appeal.° The appellant must also attach a certificate to the designation that states (1) the date
on which the transcript was requested, (2) the estimated number of pages, (3) the estimated
completion date, and (4) that defendant’s counsel and the reporter have agreed on an acceptable
payment schedule to the court for the preparation of the transcript.’ This certificate must be
signed by both the court reporter and counsel for the appellant.®
2 Ky. Const. § 110(2)(b); Ky. REV. STAT. ANN. § 532.075 (West 2011); Ky. R. CRIM. P. 12.02. Direct appeal in
criminal cases to the Kentucky Supreme Court is available when a defendant has been sentenced to death. Ky. REV.
STAT. ANN. § 532.075(1) (West 2011); Ky. R. CRIM. P. 12.02.
Ky. R. Crim. P. 12.04(1), (3); see also Ky. R. Civ. P. 73.01(2) (“All appeals shall be taken to the next higher
court by filing a notice of appeal in the court from which the appeal is taken.”). If the motion for a new trial was
filed more than five days after retum of the verdict, the appeal shall be limited to the grounds “timely raised by the
motion.” Id. See also Ky. R. Crim. P. 10.06 (discussing the time requirements for new-trial motions and the
grounds upon which these motions may be based). This motion need not include “[alllegations of error, properly
preserved by objections ..., in respect to rulings, orders or instructions of the [trial] court ...in order to be
preserved for appellate review.” Ky. R. CRIM. P. 10.12.
Interview by Sarah Turberville and Paula Shapiro with the Ky. Dep’t of Pub. Advocacy (DPA), June 14, 2010
(on file with author). See also Chapman v. Commonwealth, 265 S.W.3d 156, 162, n.2 (Ky. 2007) (although the
defendant sentenced to death requested the death penalty and waived any appeals, “[t]he Department of Public
Advocacy then filed this [direct] appeal on Chapman's behalf.”).
5 Ky.R. Civ. P. 75.01(1). Three exceptions to this filing requirement apply: “[A Jn agreed statement of the case is
certified as provided in Rule 75.15, the proceedings were taken exclusively by video recording as governed by Rule
98, or there are no proceedings to transcribe.” Id. Also, in lieu of adhering to this rule, “the parties by stipulation
filed with the clerk of the trial court may designate the parts of the proceedings and evidence to be included in the
record on appeal.” Ky. R. Civ. P. 75.06.
6 Ky. R. Cw. P. 75.01(1). In Kentucky, the official trial record is in the form of a video recording of the
proceeding. Ky. R. Civ. P. 98(2)(a) (“Upon the filing of a notice of appeal, one of the two video recordings, or a
court-certified copy of that portion thereof recording the court proceeding being appealed shall be filed with the
clerk and certified by the clerk as part of the record on appeal.”).
7 Ky.R. Civ. P. 75.01(2).
8 Td. In cases in which the death penalty had been sought at trial, the court reporter must prepare the requested
transcript within 170 days from the date on which the designation was filed; if the court reporter is unable to
complete the transcript within the 170 days, s/he is required to make a written request to appellant's attorney “who
shall [then] file in the Supreme Court of Kentucky for an extension of time.” Ky. R. Civ. P. 75.01(4). Further
delays necessitate additional written requests and filings. Id. Finally, the court reporter must make any such written
request “at least ten [] days before the expiration of the period as originally prescribed or as extended by a previous
order.” Ky. R. Civ. P. 75.01(5).
229
The circuit court clerk must “transmit the entire record and transcript to the Supreme Court
together with a notice prepared by the clerk and a report prepared by the trial judge,” which is
“in the form of a standard questionnaire prepared and supplied by the Supreme Court.”? The
clerk will include in the notice: “the title docket number of the case, the name of the defendant
and the name and address of his attorney, a narrative statement of the judgment, the offense, and
the punishment prescribed.” '°
In death penalty cases, “[bJoth the defendant and the Commonwealth shall have the right to
submit briefs within the time provided by the court, and to present oral argument to the
[Kentucky Supreme C]ourt.”"! If the appellant is represented by the Public Advocate, s/he must
file his/her brief “within [sixty] days after . . . the record on appeal was received by the clerk of
the [Kentucky Supreme Court]” notice of which is required under the rule. 12 Tn this instance, the
Commonwealth, as the appellee, then has sixty days “after... the appellant's brief was filed” to
file its brief.
In cases where the death penalty has been imposed, the appellant and Commonwealth may
increase the page limits of initial briefs to 150 pages each and of any reply brief to twenty-five
pages.'* Absent this motion, initial briefs and any reply brief may not exceed fifty pages and ten
pages, respectively.'°
B. Standard of Review
Allegations of error properly preserved at trial, as well as errors not preserved at trial but
possibly constituting palpable error, will be reviewed by the Kentucky Supreme Court on direct
i" Ky. REV. STAT. ANN. § 532.075(1) (West 2011).
Id.
i Ky. REV. STAT. ANN. § 532.075(4) (West 2011). In other criminal cases, if the appellant wishes to present an
oral argument, s/he must include in his/her initial brief a “statement conceming oral argument” that explains “why
appellant believes that oral argument would . . . be helpful to the [appellate] court in deciding the issues presented.”
Ky. R. Civ. P. 76.12(4)(c)(ii). If the appellant does not wish to present an oral argument, s/he instead may assert that
oral argument would not be helpful to the appellate court in deciding the issues presented. Id. The decision to allow
or to refuse oral argument remains in the discretion of the appellate court. Ky. R. Civ. P. 76.16(1) (Any party may,
within ten days from “the date of the [appellate court’s] order [dispensing with oral argument],” file a motion asking
the court to reconsider its decision.). Since the constitutionality of the death penalty was reestablished in 1976, we
have not uncovered a capital case in which the Kentucky Supreme Court denied a request for oral argument. See
Gregg v. Georgia, 428 U.S. 153 (1976).
2 Ky. R. Civ. P. 76.12(2)(b)(i).
3 Ky. R. Cw. P. 76.12(2)(a)-(b). If the appellant is represented by counsel other than the Public Advocate, the
appellant must file his/her brief within sixty days after the clerk of the trial court “notif[ies] the clerk of the appellate
court when the record has been completed and certified,” and notice of certification of the record must be provided
to the parties. Ky. R. Civ. P. 76.12(2)(a)-(b), 75.07(6). In this instance, the Commonwealth, as appellee, then has
sixty days “after... the appellant's brief was filed or ... the record on appeal was received by the clerk of the
appellate court, whichever is [] later,” to file its brief. Ky. R. Civ. P. 76.12(2)(b)(ii). Finally, both the
Commonwealth and the appellant must file their reply briefs within fifteen days “after . . . the [] appellee's brief was
filed or due to be filed.” Ky.R. Civ. P. 76.12(2)(a).
4 Ky. R. Civ. P. 76.12(4)(b) iii).
© Ky. R. Civ. P. 76.12(4)(b)(ii).
230
appeal.’ To properly preserve an allegation of error, counsel must object “as provided in [the
Kentucky Rules of Criminal Procedure].”"”
If an issue has been preserved for review, then it is “reviewed under normal standards.”!® For
example, a trial court’s evidentiary rulings generally are reviewed under an abuse-of-discretion
standard, requiring the appellate court to determine “whether the trial [court’s] decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” 19 Likewise, an abuse-
of-discretion standard also applies to certain trial court nulings respecting jury selection, e.g.,
“limit[ing] the scope of voir dire.””° Matters of law, by contrast, are reviewed de novo without
deference to the trial court ruling.”?
If an issue has been “insufficiently raised or preserved for review,” then an appellate court will
grant relief only if the error is “[a] palpable error [that] affects the substantial rights of a party.””*
Palpable error “requires a showing of ‘manifest injustice,’” meaning that “the error must have
prejudiced the substantial rights of the defendant,” or that, absent the error, “a substantial
possibility exists that the result of the trial would have been different.”"> The Kentucky Supreme
Court has elaborated that this standard means “probability of a different result or error so
fundamental as to threaten a defendant’s entitlement to due process of law.”“ To uncover
palpable error, “a reviewing court must plumb the depths of the proceeding ... to determine
whether the defect in the proceeding was shocking or jurisprudentially intolerable.”*? The Court
also requires, in order for relief to be granted for an unpreserved issue, that there be no
reasonable justification or explanation for defense counsel’s failure to object in the first
instance.
16 Ky. REV. STAT. ANN. § 532.075(2) (West 2011) (“The Supreme Court [in its review of a death sentence] shall
consider the punishment as well as any errors enumerated by way of appeal.”).
7 Ky. R. Crim. P. 10.12. Formal exceptions to nulings or orders of the court are unnecessary, and “it is sufficient
that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which
that party desires the court to take or any objection to the action of the court.” See Ky. R. CRIM. P. 9.22.
18 Meece v. Commonwealth, 2006-SC-000881-MR, 2011 WL 2433733, at *2 (Ky. June 16, 2011).
19 Id. (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
20 ‘Id. at *55 (citing Fields v. Commonwealth, 274 S.W.3d 375, 393 (Ky. 2008)).
21 See Winstead v. Commonwealth, 327 S.W.3d 386, 405 (Ky. 2010) (“Since interpreting an extradition
agreement is a matter of law, our review is de novo.”).
22 Ky. R. Crim. P. 10.26.
23 Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997).
. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (emphasis added).
5 Td. at 3-4.
26 Sanders v. Commonwealth, 801 S.W.2d 665, 668 (Ky. 1990). Sanders, which preceded Martin, summarized
the unpreserved-issues inquiry as follows:
[W]e begin by inquiring: (1) whether there is a reasonable justification or explanation for defense
counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; and
(2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e.,
whether the circumstances in totality are persuasive that, minus the error, the defendant may not
have been found guilty of a capital crime, or the death penalty may not have been imposed.
Id. (internal citations omitted). See also Strickland v. Washington, 466 U.S. 668 (1984) (holding that in order to
prevail on a claim of ineffective assistance of counsel, the petitioner must prove both poor performance and
prejudice affecting the outcome of the case due to the inadequate performance of counsel).
231
C. Mandatory Review of the Death Sentence
Independent of whether a defendant files a direct appeal, the Kentucky Supreme Court is
required by statute to conduct a mandatory review of all death sentences.”’ If a defendant files a
direct appeal, mandatory review of the death sentence will be consolidated with the appeal.”
Upon mandatory review of the death sentence, the Court must “consider the punishment as well
as any errors enumerated by way of appeal” and, with regard to the sentence, determine whether
(1) [T]he sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor,
(2) [T]he evidence supports the jury’s or judge’s finding of statutory aggravating
circumstances, [and]
(3) [T]he sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.”°
In conducting the third prong of this review, which is referred to as “proportionality review,” the
Kentucky Supreme Court must consider (1) whether other criminal defendants received the death
penalty for similar crimes; and (2) whether a particular appellant’s sentence is disproportionate
in relation to the crime for which s/he was convicted.” Having completed its review, the Court
may decide either to affirm the sentence of death or to set aside the sentence and remand
appellant’s case to the lower court for resentencing.” If the prosecuting attorney decides to
again seek the death penalty upon remand,” the lower court must, in resentencing the appellant,
consider (1) the arguments made by counsel before the Kentucky Supreme Court, (2) the records
of similar cases to which the Kentucky Supreme Court referred in rendering its decision to
remand, and (3) the extracts of all cases in which the death penalty was imposed since January 1,
1970.
Finally, as a matter of court procedure, Kentucky law grants the defendant and the
Commonwealth “the right to submit briefs within the time provided by the [Kentucky Supreme]
[C]ourt.”
D. Discretionary Review by the U.S. Supreme Court
27 See generally Ky. Rev. STAT. ANN. § 532.075 (West 2011). If a defendant files a direct appeal, “[t]he sentence
review [mandated under KRS 532.075(3)] shall be in addition to the direct appeal ... and the review and appeal
shall be consolidated.” Ky. REV. STAT. ANN. § 532.075(8) (West 2011) (emphasis added). The Kentucky Supreme
Court further is required to “render its decision on legal errors enumerated, the factual substantiation of the verdict,
and the validity of the sentence.” Ky. REV. STAT. ANN. § 532.075(8) (West 2011).
2 Ky. REV. STAT. ANN. § 532.075(8) (West 2011).
2 Ky. REV. STAT. ANN. § 532.075(2)-(3) (West 2011).
3° Thompson v. Commonwealth, 147 $.W.3d 22, 54-55 (Ky. 2004).
3! Ky. REV. STAT. ANN. § 532.075(5) (West 2011).
2 See generally Ky. Rev. STAT. ANN. § 15.725 (West 2011) (establishing the duties of Commonwealth's
attorneys and county attomeys). See also Windsor v. Commonwealth, No. 2008-SC-000383-MR, 2010 WL
3374240, at *5 (Ky. Aug. 26, 2010) (“The Commonwealth enjoys broad discretion in its consideration of plea
bargains and in its decisions with respect to the charging of crimes and the request for certain penalties.”).
% “Ky. REV. STAT. ANN, § 532.075 (5)(b), (6)(a) (West 2011).
* Ky, REV. STAT. ANN. § 532.075(4) (West 2011).
232
If the Kentucky Supreme Court affirms the death sentence, the appellant has ninety days after
that Court’s decision is entered to file a petition for a writ of certiorari with the U.S. Supreme
Court, seeking discretionary review of the Kentucky Supreme Court’s decision.*° If the U.S.
Supreme Court reviews the case, it may affirm both the conviction and the sentence, affirm the
conviction and overturn the sentence, or overtum both the conviction and the sentence.*° If the
U.S. Supreme Court affirms the appellant’s conviction and sentence, and if the appellant wishes
to continue challenging his/her conviction and sentence, s/he may initiate post-conviction relief
under Kentucky law.*”
% 28 U.S.C. §§ 1257, 2101(c) (2011).
* 28 U.S.C. § 2106 (2011).
See generally Ky. R. CRIM. P. 11.42; see also Chapter Eight on State Post-Conviction Proceedings, infra.
233
II, ANALYSIS
A. Recommendation #1
In order to (1) ensure that the death penalty is being administered in a rational,
non-arbitrary manner, (2) provide a check on broad prosecutorial discretion, and
(3) prevent discrimination from playing a role in the capital decision-making
process, direct appeal courts should engage in meaningful proportionality review
that includes cases in which a death sentence was imposed, cases in which the death
penalty was sought but not imposed, and cases in which the death penalty could
have been but was not sought.
Kentucky statutory law requires the Kentucky Supreme Court to review “on the record” all death
sentences imposed in the Commonwealth.” This review includes consideration of both the
sentence “as well as any errors enumerated by way of [direct] appeal.” °° As to the sentence,
specifically, the Kentucky Supreme Court must address each of the following issues:
(a) Whether the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor, and
(b) Whether the evidence supports the jury’s or judge’s finding of statutory
aggravating circumstances as enumerated in KRS 532.025(2), and
(c) Whether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant. *°
In determining whether the death sentence “is excessive or disproportionate to the penalty
imposed in similar cases,” the Kentucky Supreme Court has stated that this inquiry “simply
[involves] compar{ing] one death penalty case with all the other cases in which the death
sentence was imposed after January 1, 1970.”"' The proportionality review does not include
cases in which the death penalty was sought but not imposed, nor cases in which the death
penalty could have been but was not sought. The Court also has held that “sentences imposed on
[co-]defendants are not relevant in determining the validity of a death sentence or other
sentence.”
This more limited approach to proportionality review is not mandated by Kentucky law, for the
relevant consideration announced in the statute is “[w]Jhether the sentence of death is excessive
or disproportionate to the penalty imposed in similar cases, considering both the crime and the
defendant.”** The statute also requires the Chief Justice of Kentucky to direct “an administrative
assistant who is an attorney ... [t]o accumulate the records of all felony offenses in which the
38 Ky. REV. STAT. ANN. § 532.075(1) (West 2011) (“Whenever the death penalty is imposed for a capital offense,
and upon the judgment becoming final in the Circuit Court, the sentence shall be reviewed on the record by the
Supreme Court.”); Ky. R. CRIM. P. 12.02.
°°” Ky. REV. STAT. ANN. § 532.075(2) (West 2011).
“Ky. REV. STAT. ANN. § 532.075(3) (West 2011).
41 Epperson v. Commonwealth, 197 S.W.3d 46, 63-64 (Ky. 2006) (emphasis added); see also Fields v.
Commonwealth, 274 S.W.3d 375, 420 (Ky. 2008), overruled on other grounds by Childers v. Commonwealth, 332
S.W.3d 64, 72 (Ky. 2010).
a Epperson, 197 S.W.3d at 63.
© Ky, REV. STAT. ANN. § 532.075(3)(c) (West 2011).
234
death penalty was imposed after January 1, 1970, or such earlier date as the court may deem
appropriate.”“* The statute does not suggest that these are the only cases that must comprise
proportionality review. Nevertheless, the Kentucky Supreme Court repeatedly has affirmed its
reading of the statute and its approach to proportionality review.”°
A comparison of cases in which the death penalty has been imposed to those in which a
defendant received a lesser sentence— for example, life imprisonment without the possibility of
parole— reveals some doubts as to whether Kentucky’s death penalty is administered in a fully
rational, non-arbitrary manner. The facts and outcomes from the following six murder cases are
instructive:
(1) Samuel Stevens Fields, under the influence of drugs and alcohol, *° fatally stabbed
Bess Horton in the course of burglarizing her home.*’ Horton had known Fields
because she had rented to his girlfriend, Minnie Burton, a duplex apartment located
near Horton’s residence.*® Horton was in the process of evicting Burton from the
apartment— going so far as to “cut off the water” to it— when Fields committed the
homicide." Upon retrial before a Rowan County jury, Fields was sentenced to death
in 2004.
(2) Charles Kirkland and Preston McKee “entered a Lexington liquor store intending to
rob the owner.” In the course of the robbery, Kirkland shot the owner, Warren
Renfro, who later died from his wounds.” A Fayette County jury declined to
recommend the death penalty for the two defendants, and Kirkland and McKee
instead received twenty-five-year and forty-five-year sentences, respectively.°°
(3) Quincy Cross strangled eighteen-year-old Jessica Currin, bludgeoned her with a
wrench, and “sexually abus[ed] her body and encourag[ed] others to do the same.” mA
At the time of her death Currin’s son was seven months old. Upon the
recommendation of a Graves County jury, Cross was sentenced to life imprisonment
without the possibility of parole.*®
“Ky. REV. STAT. ANN. § 532.075(6)(a) (West 2011).
4 See, e.g., Hunt v. Commonwealth, 304 S.W.3d 15, 52 (Ky. 2009) (declining to reevaluate the constitutionality
of the Court's approach to proportionality review); Fields, 274 S.W.3d at 419; Sanders v. Commonwealth, 801
S.W.2d 665, 683 (Ky. 1990).
48 See Fields v. Commonwealth, 12 S.W.3d 275, 278, 282 (Ky. 2000); see also Fields v. Commonwealth, 274
S.W.3d 375, 390 (Ky. 2008), overruled on other grounds by Childers v. Commonwealth, 332 S.W.3d 64, 72 (Ky.
2010). Field's intoxication at the time he committed the capital offense is relevant to the issue of mitigation under
KRS 532.025(2)(b)(7).
"Fields, 274 S.W.3d at 391, 415.
‘8 Fields, 12 S.W.3d at 277.
Id. at 277-78.
Fields, 274 S.W.3d at 391.
Kirkland v. Commonwealth, 53 S.W.3d 71, 73 (Ky. 2001).
Id.
Id. at 73-74. See also John Cheves, Two Spared Death Penalty, LEXINGTON HERALD-LEADER, Sept. 23, 1998,
at B3.
Amy Burroughs, J ury Recommends Life without Parole for Cross, PADUCAH Sun, Apr. 10, 2008.
235
(4) Lloyd Hammond was convicted by a Jefferson Circuit Court jury of murdering
William Sawyers, Terell Chery, and Keny Williams.*” Despite “showling] little
remorse” and “no emotion” throughout his trial, Hammond was sentenced to life
imprisonment without the possibility of parole.®®
(5) Robert Drown allegedly met Jennifer Ison at a bar in Kenova, West Virginia.’ He
later murdered Ison and her two daughters, ten-year-old Shannah, whom he raped,
and three-year-old Marissa.® Drown accepted a plea deal in Carter County Circuit
Court in which he received life without the possibility of parole.”
(6) Cecil New lured four-year-old César Ivan Aguilar-Cano into his home, “plied him
with alcohol, then sexually abused and killed him before putting the body in a
garbage container.”®’ New pled guilty to kidnapping and murder and was sentenced
by a Jefferson County Circuit Court judge to life imprisonment without the
possibility of parole."
Of these seven men, only Samuel Fields received a death sentence. His offense of murdering
Bess Horton in the course of committing a first-degree burglary is, without question, a very
serious one. But it is difficult to conclude that either Fields or this offense is the worst among
the aforementioned defendants and offenses.“ Had the proportionality review conducted in
Fields v. Commonwealth included a broader Tange of cases, the Kentucky Supreme Court's
analysis may have reached a different conclusion.® Regardless, a proportionality review that
does take into consideration cases in which a defendant was spared a capital sentence— whether
through jury deliberation or prosecutorial discretion— would better ensure the rational, non-
arbitrary application of Kentucky's death penalty.
Aside from its exclusion of cases in which the death penalty was sought but not imposed and
cases in which the death penalty could have been but was not sought, a separate question exists
as to whether Kentucky’s proportionality review is a meaningful one. The Kentucky Supreme
Court conducts its proportionality review by referencing “data . . . deemed by the Chief Justice to
be appropriate and relevant to the statutory questions conceming the validity of the sentence.”
Throughout the past thirty-three years, Kentucky’s Public Advocate has sought to review these
Jason Riley, Jury Spares Hammond from Death Penalty, CourIER-J., June 30, 2010, at A1.
Id.
ms Tonia Rose, Man Pleads to Rape, Murder, MOREHEAD News, Apr. 30, 2010.
8 i
82 Jason Riley, Boy's Killer Gets Life in Prison, CouRIER-J., Dec. 18, 2010, at Al.
Id.; Harold J. Adams, Plea Bargains Trump Many Indiana Trials, CourIER-J. (Louisville, Ky.), Jan. 7, 2011, at
Al (recounting Jefferson County Commonwealth's Attorney Dave Stengel’s explanation that New pled guilty
because both the prosecution and the defense recognized that the case likely would have led to the imposition of the
death penalty).
5 One possible, if partial, explanation for any charging and sentencing disparities exhibited in Kentucky capital
cases over the past thirty-five years may be the 1998 addition of “imprisonment for life without benefit of probation
or parole” to the list of available sentences in capital cases. H.B. 455, 1998 Gen. Assemb., Reg. Sess. (Ky. 1998)
(effective July 15, 1998). Prior to this amendment, a jury would not have been able to ensure that a convicted
defendant remained incarcerated for the remainder of his/her life without delivering a sentence of death, as the pre-
1998 “sentence of life” option did not preclude the eventual probation or parole of the defendant.
8 Fields v. Commonwealth, 274 S.W.3d 375, 420 (Ky. 2008), overruled on other grounds by Childers v.
Commonwealth, 332 S.W.3d 64, 72 (Ky. 2010).
® Ky, REV. STAT. ANN. § 532.075(6)(c) (West 2011).
236
data; it is the practice of the Court, however, not to make available any more information than
what it includes in its official opinions, finding there is “no right to access [the] Court’s KRS
532.075 review data.”°”
Notwithstanding the absence of this right, the Kentucky Supreme Court seemed to suggest, when
first asked by the Public Advocate for its KRS 532.075 review data, that it eventually would
grant access to this information: “[T]he materials compiled ... for this court pursuant to KRS
532.075(6),” wrote Chief Justice Palmore in Ex parte Farley, “will be open to the public ... as
soon as we have had the occasion and opportunity to examine and consider them ourselves.”™
In the end, any analysis of the meaningfulness of the Kentucky Supreme Court's proportionality
review necessarily is limited due to the Court’s current practices respecting its review data.”
Nonetheless, the Court's existing proportionality review typically offers minimal analysis of the
similarities between the facts of the case at bar and previous cases in which a death sentence was
imposed. The decision in Foley v. Commonwealth offers a typical example. After declaring that
“[t]he death sentence was not disproportionate to the penalty imposed in similar sentences since
1970 considering both the crimes and the defendant,” which is an exact recitation of the statutory
language,” and listing the cases considered, the Court stated, “[w]e have conducted an
independent review of all the circumstances and conclude that they exceed any minimum
justifying capital punishment.”’’ Notably, the Kentucky Supreme Court has not overtumed a
death sentence on proportionality review since reinstatement of the death penalty in 1976.”
To conclude, Kentucky law requires the Kentucky Supreme Court to perform proportionality
review of death sentences, but this mandate has been interpreted by the Court to include only
cases in which the death penalty was imposed. Proportionality review does not include cases in
which the death penalty was sought but not imposed, nor cases in which the death penalty could
have been but was not sought. The current review process also offers only minimal analysis.
57 The first case in which the Public Advocate sought access to the Court's proportionality review data was in
1978. Ex parte Farley, 570 S.W.2d 617 (Ky. 1978). A similar request was made as recently as June 2011. Meece v.
Commonwealth, No. 2006-SC-000881-MR, 2011 WL 2433733 (Ky. June 16, 2011).
68 Ex parte Farley, 570 S.W.2d at 627 (emphasis added). At the time the Kentucky Supreme Court decided
Farley, these data were in the process of being compiled and were termed a “work-in-process.” Id. at 624.
59 See Epperson v. Commonwealth, 197 S.W.3d 46, 63 (Ky. 2006) (“This Court does not use any secret data . . .”);
Harper v. Commonwealth, 694 S.W.2d 665, 671 (Ky. 1985) (“We state in our opinions all matters considered by us,
and in no way are mysterious and secret records or data taken into account in our deliberations.”).
7 See Ky. Rev. Stat. ANN. § 532.075(3)(c) (West 2011) (“Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”).
TL Foley v. Commonwealth, 942 S.W.2d 876, 889-90 (Ky. 1996). See also Hunt v. Commonwealth, 304 S.W.3d
15, 52 (Ky. 2009) (“[T]he sentence is not disproportionate to the penalty imposed in similar cases since 1970
considering both the crime and the defendant.”); Mills v. Commonwealth, 996 S.W.2d 473, 495 (Ky. 1999) (noting
the “particular{]” attention paid to “those [cases] in which a defendant was sentenced to death for intentional
murders unaccompanied by other criminal behavior directed toward the victims”), overruled on other grounds by
Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010). But see Fields v. Commonwealth, 274 S.W.3d 375, 420
(Ky. 2008) (more thoroughly comparing the instant case to others in which the death penalty was imposed),
overruled on other grounds, Childers v. Commonwealth, 332 S.W.3d 64, 72 (Ky. 2010).
” The Kentucky Supreme Court has reversed death sentences for thirty-eight individuals on direct appeal. In
some of these cases, the Court will not reach the issue of proportionality review having found a separate basis upon
which to overturn the death sentence. See Kentucky Death Sentences Imposed, Reversed & Commuted, 1976-2011,
infra Appendix.
237
Therefore, the Commonwealth of Kentucky is only in partial compliance with this
Recommendation.
The Kentucky Death Penalty Assessment Team notes its difficulty in obtaining data on all death-
eligible cases in the Commonwealth, a problem that would be rectified were the Commonwealth
to establish a statewide database for collecting data on these cases. These data should include, at
minimum, details on the race of the defendants and the victims, the circumstances of the crime,
the nature and strength of the evidence, and— for those cases where the death penalty is sought—
the aggravating and mitigating circumstances presented and established at trial. The creation of
such a database would provide policymakers better information as they continue to assess
Kentucky’s capital system— specifically, that system’s effectiveness and faimess. In turn, these
data should be made available to the Kentucky Supreme Court for use in its statutorily mandated
proportionality review.
Finally, the Assessment Team again emphasizes that the more thorough proportionality review
recommended in this Chapter would no more usurp the charging and sentencing authorities of
local prosecutors and juries than does the current proportionality review system. Indeed, the
value and appropriateness of such a review was recognized long ago, both by the U.S. Supreme
Court in soe v. Georgia and by Kentucky’s elected legislators through enactment of KRS
532.075(3 Broadening proportionality review to include additional, relevant cases would
aati : ba thereby, better ensure it achieves its important ends.
7 See Gregg v. Georgia, 428 U.S. 153, 198 (1976).
238
CHAPTER EIGHT
STATE POST-CONVICTION PROCEEDINGS
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
The availability of state post-conviction and federal habeas corpus relief through collateral
review of state court judgments is an integral part of the capital punishment review process.
Significant percentages of capital convictions and death sentences have been set aside in such
proceedings as a result of ineffective assistance of counsel claims, claims made possible by the
discovery of crucial new evidence, claims based upon prosecutorial misconduct, claims based on
unconstitutional racial discrimination in jury selection, and other meritorious constitutional
issues.
Collateral review is critically important to the fair administration of justice in capital cases.
Because capital defendants may receive inadequate counsel at trial and on direct appeal, and
because it is often impossible to uncover prosecutorial misconduct or other crucial evidence until
after direct appeal, state post-conviction proceedings often provide the first opportunity to
establish meritorious constitutional claims. Moreover, exhaustion and procedural default rules
require the inmate to present such claims in state court before they may be considered in federal
habeas corpus proceedings.
Securing relief on meritorious federal constitutional claims in state post-conviction proceedings
or federal habeas corpus proceedings has become increasingly difficult in recent years because of
more restrictive state procedural rules and practices and more stringent federal standards and
time limits for review of state court judgments. Some federal restrictions include a one-year
statute of limitations on federal habeas claims; tight restrictions on evidentiary hearings with
respect to facts not presented in state court— irrespective of the justification for the omission—
unless there is a convincing claim of innocence; and a requirement in some circumstances that
federal courts defer to state court rulings that the Constitution has not been violated, even if the
federal court concludes that the state court’s ruling was erroneous.!
In addition, U.S. Supreme Court decisions and the Anti-Terrorism and Effective Death Penalty
Act of 1996 (AEDPA) have greatly limited the ability of a death row inmate to return to federal
court a second time. Another factor limiting grants of federal habeas corpus relief is the
harmless error doctrine.
These limitations on post-conviction relief, as well as the federal government’s defunding of
resource centers for federal habeas proceedings in capital cases, have been justified as necessary
to discourage frivolous claims in federal court. These changes, however, may have also resulted
in an inability of death-row inmates to have valid claims heard on the merits in federal court.
State courts and legislatures could alleviate some of the unfairness these developments have
created by making it easier to obtain state court rulings on the merits of valid claims of harmful
constitutional error. The availability of numerous rounds of judicial review does not guarantee
‘28 U.S.C. §§ 2244, 2254 (2010).
239
that any court, state or federal, will rule on the merits of the inmate’s claims—even when
compelling new evidence of innocence is discovered shortly before an execution. Under current
collateral review procedures, a “full and fair judicial review” often does not include reviewing
the merits of the inmate’s constitutional claims.
240
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
Post-conviction proceedings, including those initiated by death row inmates, generally are
governed by Rule 11.42 of the Kentucky Rules of Criminal Procedure (RCr 11.42).° In addition,
death row inmates may also seek post-conviction relief in Kentucky courts through Rule 60.02 of
the Kentucky Rules of Civil Procedure (CR 60.02) and state habeas corpus relief.? Rules 11.42,
60.02, and state habeas proceedings are discussed below. However, because RCr 11.42 is the
primary means by which a death row prisoner may collaterally attack his/her conviction and
sentence, the bulk of the factual discussion necessarily will focus on the procedures and law
related to that provision.‘
A. Motions for Post-Conviction Relief Under RCr 11.42
1. Filing and Content of an RCr 11.42 Motion
Any person who has been convicted of a criminal offense in Kentucky, including death row
inmates, may petition the trial court in which the sentence was imposed “to vacate, set aside or
correct” the judgment or sentence.’ The petitioner, in his/her original or amended motion, must
“sign{] and verif[y]” the motion and allege all available grounds for post-conviction relief and
specific facts that support those grounds, and “[fJailure to comply with this [requirement]
warrant{s] [] summary dismissal of the motion.”°
As the Kentucky Supreme Court has explained: “The requirement for a specific statement of
facts [] means that the motion must contain ‘more than a shotgun allegation of complaints,’”” It
continued:
[T]he movant “has the burden to establish convincingly that he was deprived of
some substantial right which would justify the extraordinary relief afforded by the
post-conviction proceeding.” Without a “minimum factual basis,” the motion
may be summarily overruled. Furthermore, RCr 11.42 exists to provide the
movant with an opportunity to air known grievances, not an opportunity to
2 Ky. R. Cri. P. 11.42; see also Fraser v. Commonwealth, 59 S.W.3d 448, 451-56 (Ky. 2001) (describing the
history and procedures of RCr 11.42).
3 CR 60.02 codifies, in large measure, the common-law writ of coram nobis. See Gross v. Commonwealth, 648
S.W.2d 853, 856 (Ky. 1983); John S. Gillig, Kentucky Post-Conviction Remedies and the Judicial Development of
Kentucky Rule of Criminal Procedure 11.42, 83 Ky. LJ. 265, 330-34 (1995) (“CR 60.02, in some ways, is even
more limited than its common law predecessor”). State habeas corpus relief is guaranteed under the Kentucky
Constitution and codified at KRS 419.020. Ky. Const. § 16; Ky. REV. STAT. ANN. § 419.020 (West 2011).
4 A fourth avenue for collateral attack on a judgment in state court, Civil Rule 60.03, also exists, but it may not be
invoked to relitigate an issue already decided in a CR 60.02 motion, nor may it be invoked to circumvent the statute
of limitations that sometimes applies in the case of CR 60.02 relief. See Ky. R. Civ. P. 60.02(a)-(c).
5 Ky.R. Crim. P. 11.42(1). See also Ky. R. CRIM. P. 11.42(9) (requiring the transfer of all RCr 11.42 motions to
“the court[s] in which the sentence[s] [were] imposed” if those motions have been addressed elsewhere).
Ky. R. Crim. P. 11.42(2).
7 Mills v. Commonwealth, 170 S.W.3d 310, 325 (Ky. 2005) (quoting Stanford v. Commonwealth, 854 S.W.2d
742, 748 (Ky. 1993)), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009).
241
conduct a fishing expedition for possible grievances, and post-conviction
discovery is not authorized under the rule.®
If the motion raises “a material issue of fact that cannot be conclusively resolved, a e.,
conclusively proved or disproved, by an examination of the record,” a hearing is required.° A
post-conviction court “may not simply disbelieve factual allegations in the absence of evidence
in the record refuting them.”!
Finally, in order for an inmate to avoid having an issue precluded for consideration in any post-
conviction review process, s/he must, in the initial RCr 11.42 motion, “state all grounds for
holding the sentence invalid of which [s/he] has knowledge. “11 Burthermore, a post- conviction
court may consider only those issues “that were not and could not be raised on direct appeal.”*
2. Time Limit for Filing an RCr 11.42 Motion
Generally, an inmate has three years “after the judgment becomes final” to file his/her initial RCr
11.42 motion.’ This three-year statute of limitations period “serves only as an outer time limit
on the bringing of such actions ....”'* Therefore, a death row inmate whose execution date is
set prior to the expiration of the RCr 11.42 statute of limitations may have substantially less time
to file for post-conviction relief than an inmate not awaiting execution.!°
An untimely or successive motion for relief under RCr 11.42 may be filed after the statute of
limitations period if “the motion alleges and the movant proves” either of two exceptions:
(a) [T]he facts upon which the claim is predicated were unknown to the movant
and could not have been ascertained by the exercise of due diligence; or
(b) [T]he fundamental constitutional right asserted was not established within
[three years after the judgment became final] and has been held to apply
retroactively.'®
For either of these exceptions to apply, the motion must be filed “within three years after the
event establishing the exception occurred.”!” However, in response to any RCr 11.42 filing, the
Commonwealth has available a defense of laches, i.e., if the inmate unreasonably delayed filing
5 Mills, 170 S.W.3d at 325.
° Fraser, 59 S.W.3d at 452 (citing Stanford, 854 S.W.2d at 743-44); Ky. R. CRIM. P. 11.42(5).
10 Fraser, 59 S.W.3d at 452 (citing Drake v. United States, 439 F.2d 1319, 1320 (6th Cir. 1971)).
"Ky. R. CRIM, P. 11.42(3).
2 Mills, 170 S.W.3d at 326 (Ky. 2005) (citing Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998)).
Ky. R. Crim. P. 11.42(10). A judgment becomes “final” when the direct appeal concludes, typically through a
denial of certiorari by the U.S. Supreme Court. Baze v. Commonwealth, 23 S.W.3d 619, 622 (Ky. 2000), overruled
on other grounds by Leonard, 279 S.W.3d at 159.
5 Bowling v. Commonwealth, 926 S.W.2d 667, 669 (Ky. 1996).
° Td.
(Ky. R. Crim. P. 11.42(10).
"Id.
242
his/her motion and this delay prejudiced the Commonwealth’s case, relief to the inmate may be
denied.
After the motion is filed, the clerk of the court must “notify the attomey general and the
Commonwealth's attorney in writing” of this filing. The Commonwealth's attorney then must
“serve an answer on the movant” within twenty days from the date on which the clerk mailed the
notice.
3. Trial Court Resolution of an RCr 11.42 Motion
If an RCr 11.42 motion is properly signed and verified, and if it specifies grounds and supporting
facts that, if true, would warrant relief, then the trial court must “determine whether the
allegations in the motion can be resolved on the face of the record, in which event an evidentiary
hearing is not required.””” The decision not to conduct an evidentiary hearing may be appealed
to the appropriate state appellate court.2’ Ultimately, “[t]he burden is upon the accused to
establish convincingly that [s/]he was deprived of some substantial right [that] would justify the
extraordinary relief afforded by the post-conviction proceedings provided in RCr 11.42.”””
4. Appeal of a Judgment on an RCr 11.42 Motion
Either the inmate or the Commonwealth may appeal an adverse judgment of the trial court ina
proceeding brought under RCr 11.42.*7. The Kentucky Supreme Court retains exclusive
jurisdiction over all appeals from death row petitioners.”*
On appeal, the trial court’s decisions related to findings of fact and witness credibility are
entitled to deference under an abuse-of-discretion standard.” By contrast, analysis of mixed
questions of law and fact and conclusions of law will be reviewed de novo.”
18 Td. See also BLACK’s LAw DICTIONARY 891 (8th ed. 1999) (defining laches). The Kentucky Supreme Court
amended RCr 11.42 in 1994 to make explicit the long-recognized defense of laches in state post-conviction
proceedings. See, e.g., Wooten v. Commonwealth, 473 S.W.2d 116, 117 (Ky. 1971) (holding that inmate was “too
late,” twenty-seven years after being convicted of murder, in claiming that the trial transcript contained inaccuracies
and that a bill of exceptions was suppressed).
19 Ky, R. Crim. P. 11.42(4). Leave to amend either the motion or the answer is permitted consistent with the
terms of CR 15.01. Bowling, 926 S.W.2d at 670. CR 15.01 states that “[a] party may amend his pleading once as a
matter of course at any time before a responsive pleading is served .... Otherwise a party may amend his pleading
only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so
requires.” Ky.R.Civ.P. 15.01
20 Fraser, 59 S.W.3d at 452.
21 See, e.g., Bowling v. Commonwealth, 163 $.W.3d 361, 384 (Ky. 2005) (finding that “the trial court ...
erroneously held that A ppellant’s motion should be dismissed because the record did not prove the allegations in his
motion, not because the record conclusively disproved those allegations” (emphasis in original)).
22 Dorton v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968).
23 See Ky. R. CRIM. P. 12.04; Moore v. Commonwealth, 199 S.W.3d 132, 134-35 (Ky. 2006).
| Ky. R. Civ. P. 74.02(2) (“The filing of a notice of appeal in a case in which a death penalty has been imposed
will automatically serve to transfer the appeal to the [Kentucky] Supreme Court.”); Leonard, 279 S.W.3d at 155
("This Court has exclusive appellate jurisdiction over death penalty matters, even when the appeal involves a
collateral attack on a sentence of death.”). See also Skaggs v. Commonwealth, 803 S.W.2d 573, 577 (Ky. 1990)
(“[T]he Court of Appeals is without authority to review any matter affecting the imposition of the death sentence.”).
5° Sanborn, 975 S.W.2d at 909 (citing McQueen v. Commonwealth, 721 S.W.2d 694 (Ky. 1986)).
243
If the trial court declined to hold an evidentiary hearing and the inmate appeals this decision,
appellate review “‘is confined to whether the motion on its face states grounds that are not
conclusively refuted by the record and which, if true, would invalidate the conviction.’ 27 Tn the
event the Kentucky Supreme Court affirms the trial court judgment, the inmate may file a request
for certiorari with the U.S. Supreme Court.”
5. Typical Claims in an RCr 11.42 Motion
AnRCr 11.42 motion “provides a vehicle to attack an erroneous judgment for reasons which are
not accessible by direct appeal.”* Among the claims often raised through RCr 11.42 is that trial
counsel provided ineffective assistance constituting a denial of his/her rights under the Sixth and
Fourteenth Amendments of the federal constitution and section 11 of the Kentucky
Constitution.”
For an inmate to succeed on a claim of ineffective assistance of trial counsel, s/he must show that
counsel’s performance was deficient and that this deficient performance prejudiced the
defense.*’ Counsel’s performance will be deemed deficient if it “fell below an objective
standard of reasonableness” to such an extent that, as a consequence of counsel’s egregious
errors, s/he no longer was “functioning as the ‘counsel’ guaranteed the [inmate] by the Sixth
Amendment.” If an inmate’ s allegations of ineffective assistance are deemed to have occurred
as a result of “reasonable trial strategy,” s/he will be denied relief.** As to the prejudice
requirement, an inmate must establish that the deficient performance of trial counsel “was so
prejudicial” that the inmate had “been deprived ‘of a fair trial and reasonable result.’”*4
Elaborating on these requirements, the Kentucky Supreme Court has noted that “‘[clounsel is
constitutionally ineffective only if performance below professional standards caused the
defendant to lose what he otherwise would probably have won.’”
6 Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008) (observing that “both parts of the Strickland test for
ineffective assistance of counsel involve mixed questions of law and fact,” but that “the reviewing court must defer
to the determination of facts and credibility made by the trial court”); Hodge v. Commonwealth, 2011 WL 3805960,
at*3 (Ky. Aug. 25, 2011).
27 Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999) (quoting Lewis v. Commonwealth, 411 S.W.2d 321, 322
(Ky. 1967)).
28" 28 U.S.C. § 1257 (2010); see also Sears v. Upton, 130 S. Ct. 3259, 3261 n.1 (2010) (“Although this is a state-
court [post-conviction] decision, it resolved a federal issue on exclusively federal-law grounds. We therefore have
jurisdiction. 28 U.S.C. § 1257....”).
% Gross, 648 S.W.2d at 856.
3° Strickland v. Washington, 466 U.S. 668 (1984); Gall v. Commonwealth, 702 S.W.2d 37, 38 (Ky. 1985).
31 Strickland, 466 U.S. at 687; accord Gall, 702 S.W.2d at 39-40. The Kentucky Supreme Court has, on
occasion, succinctly referred to the standard set forth in Strickland as the “deficient-performance plus prejudice”
test. See, e.g., Hollon v. Commonwealth, 334 S.W.3d 431, 436 (Ky. 2010).
2 Strickland, 466 U.S. at 687. See also Commonwealth v. Bussell, 226 S.W.3d 96, 103 (Ky. 2007).
33 Bowling v. Commonwealth, 80 S.W.3d 405, 412 (Ky. 2002).
34 Bussell, 226 S.W.3d at 103 (quoting Haight v. Commonwealth, 41 S.W.3d 436, 441 (Ky. 2001)).
a Tdi (quoting United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992)). See also Martin v. Commonwealth,
207 S.W.3d 1, 4 (Ky. 2006) (“Strickland articulated a requirement of reasonable likelihood of a different result but
stopped short of outcome determination.”).
244
Resolving both prongs of this “deficient-performance plus prej ejudice” test generally requires a
more thorough record than is presented by the trial record.” Consequently, the Kentucky
Supreme Court has recognized a clear preference for raising ineffective assistance of trial
counsel claims in post-conviction motions.°”
Through the Kentucky Supreme Court’s recent decision in Hollon v. Commonwealth, claims of
ineffective assistance of appellate counsel also are now cognizable in an RCr, jt. 42. proceeding.
However, this ruling is not applicable to cases finalized prior to Hollon.“? The Kentucky
Supreme Court has emphasized, however, that where an inmate asserts that appellate counsel
performed deficiently due to “failure to raise a particular issue on direct appeal,” the inmate must
“overcom[e] a strong presumption that appellate counsel’s choice of issues to present to the
appellate court was a reasonable exercise of appellate strategy.” *
A claim that counsel was ineffective in a previous post-conviction proceeding is not a valid basis
for relief in a successive RCr 11.42 motion.” The only exception to this broadly stated rule is
that inmates who qualify for state-funded counsel during post: conviction proceedings must be
provided with counsel of “some modicum of competency.”*’ Therefore, if the petitioner was
denied outright an opportunity to appeal the trial court’s denial of his/her RCr 11.42 motion due
to the error of his/her counsel, the Kentucky Supreme Court may reinstate the appeal.”
6. Appointment of Counsel and Provision of Expert and Other Services
A death row inmate is not entitled to counsel to assist in preparing his/her RCr 11.42 motion for
post-conviction relief. If an evidentiary hearing is deemed necessary to resolve “a material issue
of fact that cannot be determined on the face of the record,” then an inmate will be entitled to
state- funded counsel only if s/he is indigent and requests, in writing, the appointment of such
counsel.“? Furthermore, “a trial judge has no duty to [appoint counsel] sua sponte,” although
s/he does have the discretion to, of his/her own volition, appoint counsel “at any stage of the
proceedings.” “*
%6 Leonard, 279 S.W.3d at 158 n.3.
37 Id. (“[A]s it is unethical for counsel to assert his or her own ineffectiveness for a variety of reasons, and due to
the brief time allowed for making post trial motions, claims of ineffective assistance of counsel are best suited to
collateral attack proceedings . . . where a proper record can be made.”).
38 Hollon v. Commonwealth, 334 $.W.3d 431, 437 (Ky. 2010). Prior to Hollon, death row inmates alleging
ineffective assistance of appellate counsel routinely were denied relief based on these claims. See, e.g., Stanford,
854 S.W.2d at 745; McQueen v. Commonwealth, 949 S.W.2d 70, 70-71 (Ky. 1997); Parrish v. Commonwealth, 272
S.W.3d 161, 173 (Ky. 2008).
39 Hollon, 334 S.W.3d at 436-37 (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)).
40 Id. at 437 (“[Ineffective assistance of appellate counsel] claims are limited to counsel’s performance on direct
appeal; there is no counterpart for counsel’s performance on RCr 11.42 motions or other requests for post-conviction
relief.” My
Moore, 199 S.W.3d at 139 (quotations omitted).
® Id. at 135.
© Ky. R. Crim. P. 11.42(5); Fraser, 59 $.W.3d at 453.
“4 Fraser, 59 S.W.3d at 453 (citing Beecham v. Commonwealth, 657 S.W.2d 234, 237 (Ky. 1983)).
245
If counsel is appointed, s/he will represent the inmate throughout review of his/her RCr 11.42
motion, as well as during any subsequent appeal from the trial court’s decision.” However, if
appointed counsel and the court jointly determine that the post-conviction review “is not a
proceeding that a reasonable person with adequate means would be willing to bring at his or her
own expense, [the inmate] has no further right to be represented by counsel.” *° Separately, an
inmate also may be entitled to state funds “for the procurement of expert testimony upon a
showing that such witness is reasonably necessary for a full presentation of the petitioner’s
case.”*” A separate hearing may be held by the trial court to determine if this testimony is, in
fact, “reasonably necessary.’*°
Specifically with respect to death row inmates, the Department of Public Advocacy (DPA)
typically provides counsel to these inmates prior to and throughout all their post-conviction
proceedings.“ DPA ordinarily begins preparing a death row inmate’s RCr 11.42 motion before
that inmate’s direct appeal becomes final.*® Furthermore, it is departmental policy that two
public defenders represent a death row inmate during all state post-conviction proceedings,
including the filing of the inmate’s initial RCr 11.42 petition.’ This state-funded, elective
representation by DPA has been upheld by the Kentucky Supreme Court as consistent with
Kentucky statutory law.>
B. Motions for Post-Conviction Relief under Rule of Civil Procedure 60.02
Relief under Kentucky Rule of Civil Procedure 60.02 (CR 60.02) is “special” and
“extraordinary” and “is not intended merely as an additional opportunity to relitigate the same
issues [that] could ‘reasonably have been presented’ by direct appeal or RCr 11.42
proceedings.” As with a motion under RCr 11.42, an inmate who seeks relief under CR 60.02
* Ky. REV. STAT. ANN. § 31.110(2)(b) (West 2011).
“Ky. REV. STAT. ANN. § 31.110(2)(c) (West 2011).
“7 Mills v. Messer, 268 S.W.3d 366, 367 (Ky. 2008).
‘8 Mills, 268 S.W.3d at 367.
Telephone Interview by Sarah Turberville with Marguerite Thomas, Post Conviction Branch Manager,
Kentucky Department of Public Advocacy, March 18, 2010 (on file with author).
5° Interview with Marguerite Thomas, supra note 49; Interview by Sarah Turberville and Paula Shapiro with the
Department of Public Advocacy, June 14, 2010 (on file with author). In certain circumstances, an inmate may
properly file an RCr 11.42 petition before his/her direct appeal has become final. Wilson v. Commonwealth, 761
S.W.2d 182, 184-85 (Ky. App. Ct. 1988) (non-capital case) (holding that a prisoner may raise, in an RCr 11.42
motion, claims independent of his/her pending direct appeal, provided those claims would not “properly [be] the
subject of the [prisoner's] direct appeal” and are supported “by proper factual allegations”).
51" Ky. DEp’T OF Pus. ADVOCACY, POLICIES AND PROCEDURES, Qualification and Compensation of Counsel in
Contract Capital Cases § 17.20(I)(C) (revised Jan. 1, 2008) (“Two Attomeys shall be assigned to all Death Penalty
Cases.”); Interview with Marguerite Thomas, supra note 49.
32 Fraser, 59 S.W.3d at 456.
53 Gross, 648 S.W.2d at 856.
54 McQueen, 949 S.W.2d at 416 (quoting Gross, 648 S.W.2d at 856) (emphasis added). In describing the
relationship between CR 60.02 and RCr 11.42, the Kentucky Supreme Court has stated that “[t]he structure provided
in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but
is organized and complete.” Gross, 648 S.W.2d at 856. It appears, however, that some of the bases for which CR
60.02 offers relief partly overlap with the two exceptions allowing for untimely or successive RCr 11.42 motions.
Compare Ky. R. Civ. P. 60.02 (“a court may .. . relieve a party . . . from its final judgment . . . upon the following
grounds: ... (b) newly discovered evidence which by due diligence could not have been discovered [within ten
days after the entry of the judgment]”) with Ky. R. Crim. P. 11.42(10)(a) (“[Any motion under this rule may be filed
246
must demonstrate why s/he is entitled to that relief.’ The inmate “must affirmatively allege
facts which, if true, justify vacating the judgment and further allege special circumstances that
justify CR 60.02 relief.”
The rule delineates six bases for which relief “from [a] final judgment, order, or proceeding” is
offered. Those bases are; “(a) mistake, inadvertence, surprise or excusable neglect; (b) newly
discovered evidence which by due diligence could not have been discovered [within ten days
after the entry of the judgment]; (c) perjury or falsified evidence; (d) fraud affecting the
proceedings, other than perjury or falsified evidence; (e) the judgment is void .. . ; [and] (f) any
other reason of an extraordinary nature justifying relief.”°’ The first three bases for relief are
subject to a one-year statute of limitations as measured from the date “the judgment, order, or
proceeding was entered or taken.”** The remaining three bases are not subject to any specified
statute of limitations.°® In addition, any motion filed under CR 60.02 must “be made within a
reasonable time.”®’ In Bowling v. Commonwealth, the Kentucky Supreme Court also found that
an inmate may seek relief through CR 60.02 when a judgment is no longer valid because it
“violates a constitutional right that was not recognized as such when the judgment was
entered.”°" Ultimately, an “alleged constitutionally impermissible act” will not, if established,
guarantee relief to the inmate, for all CR 60.02 bases for relief are “subject to the qualification
that there must be circumstances of an extraordinary nature justifying [that] relief.”®* If the trial
court receiving the motion decides to deny that motion—with or without conducting an
evidentiary hearing— that decision will be reviewed under an abuse-of-discretion standard.
No inmate is entitled to state-funded counsel in preparing or prosecuting his/her CR 60.02
motion.
C. Pleadings for Post-Conviction Relief on State Habeas Corpus Grounds
In rare circumstances, an inmate may receive relief under the Commonwealth's constitutionally
and statutorily authorized writ of habeas corpus.” If a petitioner challenges the legality of
later than three years after the judgment becomes final only if the motion alleges and the movant proves] that the
facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the
exercise of due diligence[.]”).
55 Gross, 648 S.W.2d at 856.
Id.
Ky. R. Civ. P. 60.02.
8 Id.
° Id.
© Id
6 Bowling, 163 S.W.3d at 364-65. See also Gross, 648 S.W.2d at 857 (“Claims alleging that convictions were
obtained in violation of constitutionally protected rights do not fit any of [CR 60.02’s six bases] except the last one,
‘any other reason of an extraordinary nature justifying relief.’”). But see Leonard, 279 S.W.3d at 161-62 (“A
change in the law simply is not grounds for CR 60.02 relief except in ‘aggravated cases where there are strong
equities.’”) (quoting Reed v. Reed, 484 S.W.2d 844, 847 (Ky. 1972)).
82° Gross, 648 S.W.2d at 857. Accord Copeland v. Commonwealth, 415 S.W.2d 842, 843 (Ky. 1967) (because
inmate “could and should have [] raised [the issue] at... trial,” inmate is not entitled to relief under CR 60.02 for
the alleged constitutional violation of not having been provided counsel during the taking of a plea).
3 Brown v. Commonwealth, 932 S.W.2d 359, 362-63 (Ky. 1996); Gross, 648 S.W.2d at 857.
5 Gross, 648 S.W.2d at 857 (“[W]e do not believe that it was the intent of the legislature to include CR 60.02
proceedings in the language of KRS 31.110....”).
247
his/her detention by arguing that the judgment is void, then s/he properly may seek the writ.
However, “[h]abeas corpus. . . is only available when other relief is inadequat Or
There is some partial overlap in the functions performed by RCr 11.42, CR 60.02, and state
habeas corpus. For example, in Commonwealth v. Marcum the Kentucky Supreme Court held
that, although the inmate could have filed an RCr 11.42 motion in lieu of his pleading for a state
writ of habeas corpus, “the prompt relief available by [the] writ” was appropriate “for a prisoner
who [could] establish in a summary procedure that the judgment by which he [was] detained
[was] void ab initio.”™
While an evidentiary hearing may be held to investigate an inmate’s claims presented in his/her
RCr 11.42 or CR 60.02 motion, KRS 419.100 also specifically permits a court entertaining a
pleading for a writ of habeas corpus to “produce[] and compel[]” evidence “as in civil actions,” °°
However, “[s]ummary disposition,” such as immediate issuance of a writ of habeas corpus to
provide relief to the petitioner, “is indispensable where an outrage is obvious and formality needs
to be stripped away.””” Thus, if a pleading for habeas corpus relief contains merely “sketchy
proof,” then the issuance of the writ would be inappropriate— instead, a petitioner ought to avail
himself/herself of alternative post-conviction proceedings, through which proceedings s/he may
better establish the factual bases for the claims asserted.’"
D. Review of Error
If a post-conviction court identifies an error in the trial, direct appeal, or other post-conviction
proceedings, it may deny relief because the error is deemed harmless.’* If the error involves an
inmate’s constitutional rights, however, the error generally will not be held harmless unless the
post-conviction court finds that “there is no reasonable possibility that it contributed to the
55 See Ky. CONST. § 16; Ky. REV. STAT. ANN. § 419.020 (West 2011).
6° Commonwealth v. Marcum, 873 S.W.2d 207, 210 (Ky. 1994) (quoting Smith v. Henson, 182 S.W.2d 666, 668
(Ky. 1944)).
or: Lear v. Commonwealth, 884 S.W. 2d 657, 660 (Ky. 1994) (citing Gray v. Wingo, 423 S.W.2d 517 (Ky. 1968)).
See also Smith v. Henson, 182 S.W.2d 666, 667 (Ky. 1944) (“Ordinarily the writ will not be granted where there is
another adequate remedy.”).
58 Marcum, 873 S.W.2d at 212. In Marcum, the trial judge entered a new judgment enhancing petitioner’s
sentence from five years to ten years— based on petitioner's status as a first-degree persistent felony offender—
nearly eight weeks after entering the final judgment. The second judgment was void because the trial court was
without jurisdiction to amend the judgment eleven or more days “after the entry of the final judgment.” Id. at 211
(quotations omitted).
69 Ky. Rev. STAT. ANN. § 419.100 (West 2011). Furthermore, “[dJepositions taken in accordance with the
provisions of the Rules of Civil Procedure may be read as evidence at the hearing on the writ.” Id.
n Fryrear v. Parker, 920 S.W.2d 519, 522 (Ky. 1996).
Id.
™ See Ky. R. CRIM. P. 9.24 (requiring relief for errors occurring during trial only if “the denial of such relief
would be inconsistent with substantial justice”); Talbott v. Commonwealth, 968 S.W.2d 76, 83-84 (Ky. 1998) (“The
fact that an error involves a constitutional right does not preclude harmless error analysis.”) (citing Chapman v.
Califomia, 386 U.S. 18 (1967)). But see Quarels v. Commonwealth, 142 S.W.3d 73, 80 (Ky. 2004) (distinguishing
so-called trial errors from structural errors—e.g., denial of the right to self-representation, deprivation of the right
to counsel, biased judge—which “affect{] the entire framework of the trial and therefore def[y] harmless error
analysis”); Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) (distinguishing trial errors from structural errors).
248
conviction.” In other words, the constitutional error must be harmless beyond a reasonable
doubt.” As the beneficiary of the error, the Commonwealth generally has the burden of proving
beyond a reasonable doubt that the error did not contribute to the verdict or sentence.’
However, certain claims of constitutional error—e.g., ineffective assistance of counsel claims
and Brady” claims—place the burden on the petitioner to show prejudice in order to
demonstrate constitutional error.””
E. Retroactivity of New Rules
If a new constitutional rule is established after a death row inmate’s conviction is final, s/he may
petition for post-conviction relief. This includes filing an untimely or successive motion for
relief under RCr 11.42, provided the rule has been held to apply retroactively.” Changes in the
law that amount to a new rule will not be given retroactive effect unless the rule (1) “‘places
certain kinds of primary, private individual conduct beyond the criminal law-making authority to
proscribe”; or (2) “requires the observance of those procedures that ... are implicit in the
concept of ordered liberty.’””? All other new rules of criminal procedure will be applied only to
those cases still on direct appeal. This is in accordance with the U.S. Supreme Court's general
presumption against retroactively applying new rules."
73 Anderson v. Commonwealth, 231 $.W.3d 117, 122 (Ky. 2007).
™ Talbott, 968 S.W.2d at 84; see also Winstead v. Commonwealth, 283 S.W.3d 678, 689 n.1 (Ky. 2009) (“[TJhe
‘no reasonable possibility’ test is the harmless-error standard applicable to constitutional errors and is the equivalent
of the ‘harmless beyond a reasonable doubt’ standard announced by the United States Supreme Court in
[Chapman].”).
5 Chapman, 386 U.S. at 24.
6 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”).
7 See, e.g., Gall, 702 S.W.2d at 39-40 (applying the test of Strickland v. Washington, 466 U.S. 668 (1984), to
determine whether trial counsel provided ineffective assistance, which test requires that the defendant “show that the
deficient performance prejudiced the defense”); Smith v. Commonwealth, 2008 WL 4683025, at *2 (Ky. App. Ct.
Oct. 28, 2008) (“In the absence of any showing of prejudice, any Brady violation was at most harmless error.”);
Jones v. Commonwealth, 2007 WL 1575308, at *5 (Ky. App. Ct. June 1, 2007) (finding that appellant “failed to
meet any of [the three components of a true Brady violation],” including that “prejudice must have ensued” from the
prosecution’ s failure to disclose exculpatory evidence) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
’3 Ky. R. CRIM. P. 11.42(10).
7 Leonard, 279 S.W.3d at 159 (quoting Teague v. Lane, 489 U.S. 288, 307 (1989)). See also id. at 159-60
("Teague is not binding on the states if they choose to broaden the class of retroactively applicable rules . . . [nJor is
Teague binding as to a new rule grounded solely in state law (as opposed to the federal constitution)... . Under
(Bowling, 163 S.W.3d at 361], Kentucky's constitutional retroactivity rule is no broader than that employed by the
federal courts.”).
80 Leonard, 279 S.W.3d at 160 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
249
II, ANALYSIS
A. Recommendation #1
All post-conviction proceedings at the trial court level should be conducted in a
manner designed to permit adequate development and judicial consideration of all
claims. Trial courts should not expedite post-conviction proceedings unfairly; if
necessary, courts should stay executions to permit full and deliberate consideration
of claims. Courts should exercise independent judgment in deciding cases, making
findings of fact and conclusions of law only after fully and carefully considering the
evidence and the applicable law.
Certain aspects of Kentucky law governing post-conviction proceedings assist in the adequate
development and judicial consideration of a death row inmate’s claims—e.g., post-conviction
relief is available through RCr 11.42 and, in extenuating circumstances, CR 60.02 or state-court
issuance of a writ of habeas corpus. However, other aspects raise serious concerns as to the
fairness and thoroughness of post-conviction proceedings.
Summary Dismissal of Post-Conviction Claims
RCr 11.42 specifically permits judges to dismiss motions for post-conviction relief without
conducting an evidentiary hearing."’ This occurs principally in two situations: (1) The motion
fails to “state specifically the grounds on which the sentence is being challenged and the facts on
which the movant relies in support of such grounds”; or (2) any material issue of fact raised by
the Commonwealth’s answer to the motion “can[] be determined on the face of the record.”
Specificity in the motion is critical “because RCr 11.42 does not require a hearing to serve the
function of discovery,”®* nor is any presumption given in favor of the inmate as to those facts
omitted from the motion. On the other hand, “extrinsic proof is not necessary for an RCr 11.42
motion.”
A trial court's decision not to conduct an evidentiary hearing and, therefore, to deny a petitioner
relief under RCr 11.42 regularly is appealed. In determining whether this decision was
justified— that is, whether an evidentiary hearing was necessary—a petitioner must make two
showings:
81 Ky. R. CRIM. P. 11.42(2), (5). Both the U.S. Supreme Court and the Kentucky Supreme Court have found
constitutional a state court’s refusal “to conduct an evidentiary hearing on claims of ineffective assistance of
counsel” when an inmate’s petition presents “nothing other than conclusionary statements.” Sanders v.
Commonwealth, 89 S.W.3d 380, 393-94 (Ky. 2002) (citing Strickland v. Washington, 466 U.S. 668 (1984)),
overruled on other grounds by Leonard, 279 S.W.3d at 159.
® Ky. R. CRIM. P. 11.42(2), (5).
aS Hodge v. Commonwealth, 116 S.W.3d 463, 468 (Ky. 2003) (citing Stanford, 854 S.W.2d at 742), overruled on
other grounds by Leonard, 279 S.W.3d at 159; see also Sanders, 89 S.W.3d at 385 (Ky. 2002) (citing Sanborn, 975
S.W.2d at 905, overruled on other grounds by Leonard, 279 S.W.3d at 159). In Sanborn, the Kentucky Supreme
Court observed that “the purpose of an RCr 11.42 motion is to provide a forum for known grievances and not an
opportunity to conduct a fishing expedition for potential grievances.” Sanborn, 975 S.W.2d at 910 (citing Gilliam v.
Commonwealth, 652 S.W.2d 856 (Ky. 1983)).
8 Sanders, 89 S.W.3d at 393 (citing Skaggs v. Redford, 844 S.W.2d 389 (1992)).
85 Mills, 170 S.W.3d at 325, overruled on other grounds by Leonard, 279 S.W.3d at 159.
250
First, [s/he] must show that [s/Jhe is entitled to relief under the rule. This can be
done by showing that there has been a violation of a constitutional right, a lack of
jurisdiction, or such a violation of a statute as to make the judgment void and
therefore subject to collateral attack. Second, the movant must show that the
motion, raises an issue of fact that cannot be determined on the face of the
record.
It is not uncommon for the judges of an appellate court to disagree as to whether an evidentiary
hearing is warranted.°’ The majority and dissenting opinions in Sanders v. Commonwealth offer
an illustration for how judges perceive differently “the face of the record”: In discussing a
petitioner's RCr 11.42 claim that trial counsel had failed to provide effective assistance during
the penalty phase, a majority of the Kentucky Supreme Court in Sanders summarily held that
“the reasonableness of the performance of defense counsel can easily be determined from the
trial record without an evidentiary hearing.” 88 The dissent, however, reviewed the same petition
and concluded that “[a]n evidentiary hearing is necessary to determine whether counsel's actions
were strategic or incompetent.” Likewise, in the non-capital case of Fraser v. Commonwealth,
a divided Kentucky Supreme Court held that “[aJn evidentiary hearing on [the petitioner’s] RCr
11.42 motion [was] required.”°°
Relatedly, the fact that “discovery is not authorized in [] post-conviction proceeding[s]’”
enhances the likelihood that meritorious claims for relief will be summarily dismissed, as
inmates may be unable to obtain information necessary for raising certain material issues of
fact.” Proceedings in which an evidentiary hearing is denied and/or discovery refused can
prevent potentially meritorious claims from being brought to light. For example, absent an
evidentiary hearing on post-conviction review, John Mills would not have been able to establish
the discovery violation that tainted the Commonwealth’s capital case against him“ or the fact
that Mills’ “trial counsel [had] abdicated his role as advocate and provided ineffective assistance
of counsel during the penalty phase of [the] trial”®{— a hearing initially refused Mills by the trial
court.°°
8 Mills, 170 S.W.3d at 325-26 (quotations omitted).
87 See, e.g., Fraser, 59 S.W.3d at 458 (Wintersheimer, J., dissenting, without separate opinion); Baze, 23 S.W.3d
at 628-29 (Stumbo, J., dissenting), overruled on other grounds by Leonard, 279 S.W.3d at 159; Davis, 14 S.W.3d at
15 (Stumbo, J., dissenting). See also Bowling, 163 S.W.3d at 387-88 (Keller, J., dissenting) (in a collateral action
brought under CR 60.02 but analyzed pursuant to CR 60.03, which provides litigants “an independent action to
relieve [themselves] from a judgment, order or proceeding on appropriate equitable grounds,” arguing that the
available evidence “creates sufficient doubt to warrant a hearing”).
88 Sanders, 89 S.W.3d at 394.
89 Td. at 395 (Stumbo, J., dissenting).
9 Fraser, 59 S.W.3d at 457-58 (quotations omitted); id. at 458 (Wintersheimer, J., dissenting without separate
opinion).
5! Haight, 41 S.W.3d at 445, overruled on other grounds by Leonard, 279 S.W.3d at 159.
® For further discussion pertaining to discovery during Commonwealth post-conviction proceedings, see infra
notes 110-123 and accompanying text.
3 Mills v. Commonwealth, No. 95-CR-00098, slip op. at 17 (Knox, Ky. Cir. Ct. Aug. 16, 2011) (on file with
author). This discovery violation, pertaining to a fingerprint report “not provided to the Commonwealth or [Mills’]
trial counsel,” ultimately was deemed non-prejudicial. Id.
Id. at 33.
%5 See Mills, 170 S.W.3d at 340 (reversing the trial court’s summary overruling of inmate’s RCr 11.42 motion).
251
In at least sixteen capital cases, death row inmates have been denied an evidentiary hearing after
filing for post-conviction relief following finalization of their conviction and sentence on direct
appeal.
Whenever there is any doubt as to whether an evidentiary hearing would facilitate full judicial
consideration of an inmate’s petition, it should be resolved in favor of holding a hearing. This
call for an evidentiary hearing whenever a post-conviction trial court perceives there to be any
merit to an inmate’s post-conviction claims absent clear evidence that the claim is frivolous, not
supported by existing law, or that the record undisputedly rebuts the claim. Moreover,
authorizing discovery during post-conviction review also better facilitates judicial consideration
of post-conviction claims— a result all the more critical in light of the truncated time period in
which death row inmates must prepare their petitions.
The Effect of Setting an Execution Date
The timeline for filing a post-conviction petition is three years from the date of finality, unless:
(a) [T]he facts upon which the claim is predicated were unknown to the movant
and could not have been ascertained by the exercise of due diligence; or
(b) [T]he fundamental constitutional right asserted was not established within the
[statute of limitations] period . . . and has been held to apply retroactively.°”
With respect to new rules arising from federal or Commonwealth sources, the Kentucky
Supreme Court has adopted the same test for determining retroactivity as is used by the federal
courts— that is, the Kentucky Supreme Court has declined to apply a more generous rule of
retroactivity."* Consequently, the Court generally disfavors retroactive application of new rules
to cases that have reached finality, i.e, that no longer are on direct review. It has, however,
shown a willingness to modify its determination of finality in certain circumstances: In Leonard
v. Commonwealth, the Court recognized that one specific new rule announced earlier in Martin
v. Commonwealth pertained to “procedures within the collateral attack” and that finality would,
therefore, be more fairly measured from the date on which the initial post-conviction review
5 See Baze, 23 S.W.3d at 622; Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998); Hodge v.
Commonwealth, 68 S.W.3d 338, 341 (Ky. 2001) (concerning the cases of Benny Lee Hodge and Roger Dale
Epperson); Haight, 41 S.W.3d at 442; Harper v. Commonwealth, 978 S.W.2d 311, 313 (Ky. 1998); Johnson v.
Commonwealth, 2008 WL 4270731, at *7 (Ky. Sept. 18, 2008); Mills, 170 S.W.3d at 320; Parrish, 272 S.W.3d at
166; Sanders v. Commonwealth, 89 S.W.3d 380, 384-85 (Ky. 2002); Skaggs, 803 S.W.2d at 574, 576; Stanford, 854
S.W.2d at 743-44; Stopher v. Commonwealth, 2006 WL 3386641, at *1 (Ky. Nov. 22, 2006); Thompson v.
Commonwealth, 2010 WL 4156756, at *1 (Ky. Oct. 21, 2010); Wheeler v. Commonwealth, 2008 WL 5051579, at
*1 (Ky. Nov. 26, 2008); Woodall v. Commonwealth, 2005 WL 3131603, at *2 (Ky. Nov. 23, 2005).
87 Ky.R. Crim. P. 11.42(10). An inmate has three years “after the event establishing the exception” to file his/her
RCr 11.42 motion, and, whatever the effect of these exceptions, the Commonwealth retains the defense of laches “to
bar a motion upon the ground of unreasonable delay in filing when the delay has prejudiced the Commonwealth's
opportunity to present relevant evidence to contradict or impeach the movant’s evidence.” Id.
8° See Leonard, 279 S.W.3d at 159-60 (citing Danforth v. Minnesota, 552 U.S. 264 (2008) (holding that state
courts may give broader effect to new rules of criminal procedure than is required by Teague, 489 U.S. at 288)). See
also infra notes 176-195 and accompanying text.
252
concluded.°” The Kentucky Assessment Team commends the Kentucky Supreme Court for this
flexibility in softening the deadline for filing a post-conviction petition.
Also worthy of commendation are the Kentucky Supreme Court’s decisions to reinstate the
appeals of John Mills and Douglas Hawkins, both of whom were denied relief under RCr 11.42.
Although the facts in those cases were extraordinary,!°° the Court nevertheless should be
applauded for exercising discretion to ensure that Mills’ and Hawkins’ post-conviction claims
would be adjudged on the merits, rather than dismissed due to a procedural technicality.
However, far less encouraging is the Court’s treatment, in death penalty cases, of the three-year
statute of limitations period provided for in RCr 11.42.‘ “This provision,” the Court held,
“serves only as an outer time limit on the bringing of such actions and in no way affects the
prerogatives of the Govemor with respect to enforcement of criminal judgments.”'”” In other
words, if an execution date is set prior to the expiration of the RCr 11.42 statute of limitations
period, this effectively limits a death row inmate’s time to prepare and file his/her post-
conviction petition, a limitation not imposed on inmates petitioning for post-conviction relief
who are not awaiting execution!” Particularly in light of the complexity that attends capital
cases, an abbreviated period to prepare and file a petition for post-conviction relief may result in
less thorough consideration being given to a death row inmate’s valid claims for post-conviction
relief.
The Court also rejected the use of intent-to-file motions that would enable courts to issue
restraining orders or temporary injunctions against the carrying out of a death sentence while an
inmate further prepares his/her RCr 11.42 motion.’™ While it technically is possible for a death
row inmate to file a less-than-complete RCr 11.42 motion with the expectations that (1) later
amendments would be accepted by the court and (2) the imminent death sentence would be
forestalled because, a motion having been filed, the court is able to enjoin the state from carrying
out the execution, the success of such a maneuver relies exclusively on the discretion of the trial
% Leonard, 279 S.W.3d at 160. Martin recognized that an ineffective assistance of counsel claim is distinct from
an underlying claim of direct error. Therefore, a post-conviction petitioner could raise an ineffective assistance of
counsel claim based upon that direct error. Id. at 157.
100. Specifically, in Mills v. Commonwealth, the Court “decline[d] to use [] a technical understanding of the rules to
deny [Mills’] appeal of his RCr 11.42 motion, which challenge[d] his sentence of death ....” Mills, 170 S.W.3d at
323 (emphasis in original). Likewise, Hawkins’ appeal from an adverse decision under RCr 11.42 was reinstated
after counsel mistakenly filed a notice of appeal with the wrong circuit court—this despite there being no right to
effective assistance of counsel during post-conviction review. Moore, 199 S.W.3d at 139.
‘Ky. R. CRIM. P. 11.42(10).
12 Bowling, 926 S.W.2d at 669.
103 See, e.g., Bowling, 926 S.W.2d at 668 (in the case of Thomas Bowling, 486 days between date of finality and
execution date); id. (in the case of Charles Bussell, 345 days between date of finality and execution date); id. (in the
case of Parramore Sanborn, 122 days between date of finality and execution date). See also Michael Collins,
Signature Could Speed Executions, Ky. Post, Jan. 4, 1996, at 2K (recounting Kentucky Governor Paul Patton's
decision to set execution dates for the express purpose of compelling death row inmates “to pursue their appeals”).
It should be noted that in none of the three cases cited in this footnote—the cases of Thomas Bowling, Charles
Bussell, and Parramore Sanbom— was the execution carried out on the date set. Faced with a looming execution
date, the inmates made a timely, if less thoroughly prepared, post-conviction filing, and this led to a temporary stay
of execution in their cases.
Bowling, 926 S.W.2d at 669 (“We do not find the filing of any ‘pre-RCr 11.42 motions,’ however styled,
sufficient to invest the circuit court with the power to grant a stay of execution.”).
253
court. Moreover, if the trial court were not so accommodating, the motion could be summarily
dismissed for failing to “state specifically the grounds on which the sentence is being challenged
and the facts on which the movant relies in support of such grounds,”!” with “all issues that
could reasonably have been presented in [that] proceeding” precluded from further
consideration. °°
Finally, even if an RCr 11.42 motion or other petition for post-conviction relief is pending before
a trial court, a stay of execution is not required, 1°” Nevertheless, Commonwealth courts can and
routinely do issue restraining orders and temporary injunctions once a death row inmate files a
post-conviction motion or pleading for a writ of habeas corpus.!°* If the inmate’s motion is
overruled by the trial court or if s/he otherwise fails to obtain relief, this temporary stay of
execution continues until the appeals process concludes.'°° At minimum, the Commonwealth of
Kentucky ought to adopt a similar rule guaranteeing a stay while a trial court considers a death
row inmate’s post-conviction petition.
Conclusion
Recommendation #1 requires all post-conviction proceedings at the trial court level to be
conducted in a manner designed to permit the adequate development and judicial consideration
of all claims. The aspects of the Commonwealth's post-conviction proceedings explored above,
however, raise serious concerns as to the fairness and thoroughness of this review. Thus, the
Commonwealth of Kentucky's post-conviction framework only partially complies with the
requirements of Recommendation #1.
Kentucky should adopt a rule or law requiring trial courts to hold an evidentiary hearing with
respect to all claims in capital post-conviction proceedings, absent clear evidence that the claim
is frivolous or not supported by existing law. Furthermore, Kentucky should permit adequate
time for counsel to fully research and prepare all meritorious post-conviction claims in death
penalty cases, at least equivalent to that afforded to inmates not awaiting execution.
"5 Ky. R. CRIM. P. 11.42(2).
106 Ky. R. CRIM. P. 11.42(3).
107 See Ky. R. Civ. P. 65.03(1) (“Lal restraining order may be granted at the commencement of an action, or during
the pendency thereof”) (emphasis added), 65.04(1) (“[a] temporary injunction may be granted during the pendency
of an action or motion”) (emphasis added).
108 See Bowling, 926 S.W.2d at 669-70.
109 Ky. R. CRIM. P. 12.76(1) (“A sentence of death shall be stayed pending review by an appellate court... .”).
254
B. Recommendation #2
The State should provide meaningful discovery in post-conviction proceedings.
Where courts have discretion to permit such discovery, the discretion should be
exercised to ensure full discovery.
Recommendation #3
Trial judges should provide sufficient time for discovery and should not curtail
discovery as a means of expediting the proceedings.
In Kentucky, “discovery is not authorized in a post-conviction proceeding.”""” The Kentucky
Supreme Court also has clarified that Kentucky’s discovery mules in criminal proceedings, found
at RCr 7.24, are also inapplicable in the post-conviction context.!!!
This absence of discovery during post-conviction proceedings fails to recognize the barriers
facing death row inmates in obtaining the necessary evidentiary materials to craft and present
post-conviction claims demonstrating sufficient grounds for relief. For example, trial counsel
may have failed to seek all discoverable material. Additionally, the prosecution may have failed
to disclose— inadvertently or deliberately— exculpatory material that would render the inmate's
conviction or sentence invalid. An inmate without knowledge of or access to the government's
records simply would not be able to challenge his/her sentence and conviction, no matter the
gravity of the constitutional violation that occurred at trial. Absent full and meaningful
discovery during post-conviction review, it is often impossible to determine whether all valid
claims and defenses have been raised by the defense, as well as whether all exculpatory material
has been disclosed.
Although not a capital murder case, Commonwealth v. Vettraino well illustrates this issue. In
Vettraino, police investigators neglected to disclose the existence of exculpatory evidence
available at the scene of the crime and did “not mention [the evidence’s] existence until some six
years had elapsed after the trial,” which later led to a reversal of the defendant’s murder
conviction on post-conviction review.’ Specifically, “[dJuring the post-conviction phase of
[Riccardo] Vettraino’s case, the Department of Public Advocacy uncovered evidence that a
silver handgun [matching a description provided by the defendant] was found in the drawer of a
nightstand beside [the victims’] bed.”'!° The existence of the handgun was relevant because the
defendant had claimed self-defense, and this claim had been “belittled” by the Commonwealth’s
Attomey, “taking full advantage of the fact that [the defendant] had no tangible evidence” of a
0 Haight, 41 S.W.3d at 445. Kentucky courts have stated that discovery is not necessary in the post-conviction
context because “the material would have been tumed over during the prosecution phase or the trial phase” and
because “the purpose of the RCr 11.42 motion is to provide a basis for known grievances and not an opportunity to
conduct a fishing expedition for possible grievances.” Id. (citing Skaggs, 844 S.W.2d at 389; Sanborn, 975 S.W.2d
at 905.
111 Sanborn, 975 S.W.2d at 910; see generally Ky. R. CRIM. P. 7.24.
‘2? Commonwealth v. Vettraino, Nos. 2003-CA-001387-MR, 2003-CA-001587-MR, 2004 WL 2320319, at *1-2
(Ky. App. Ct. Oct. 15, 2004).
US" Td. at*1-2.
255
gun belonging to the victim.'"* Notwithstanding cases like Vettraino, the Kentucky Supreme
Court has maintained that “[w]e have no reason to utilize as a working premise that the
Commonwealth A ttorney’s potential abuse of the law of discovery needs to be investigated. ...
In any case where there is substantial evidence presenting a reason to investigate the file of a
Commonwealth A ttomey, we must trust that the system will provide adequate relief.” !°
In only one of the four instances in which a Kentucky death row inmate has been granted relief
through post-conviction proceedings was relief based on undisclosed evidence in the
Commonwealth’s possession.'!° In 2007, Charles Bussell’s conviction and death sentence were
overtumed due, in part, to the prosecution’ s failure to disclose exculpatory evidence at trial.!"’ It
is unclear how Bussell obtained previously undisclosed police reports without discovery.
However, without such disclosure, it is clear that he would have been unable to present a
meritorious claim for post-conviction relief to correct the serious constitutional errors that
occurred at his trial.
Furthermore, the difficulties faced by inmates in proving their claims during post-conviction
proceedings are exacerbated by the fact that the Commonwealth prohibits inmates from using the
Open Records Act to obtain materials in support of their post-conviction claims. The Open
Records Act is a vehicle through which a death row inmate could access exculpatory material
that should have been tumed over by law enforcement to the prosecution and subsequently
disclosed pursuant to Brady or the Kentucky Rules. However, Kentucky courts have denied
death row inmates’ requests for records in the possession of the govemmment— apparently
including the investigative records of Commonwealth law enforcement agencies'!*— stating that
“the Open Records Act should be construed in a manner sufficiently broad to protect a legitimate
state interest, and ... the state’s interest in prosecuting [a death row inmate] is not terminated
M4 Td. Ultimately, the case settled out of court. ABC 13 WBKO 5:30 AM News (ABC television broadcast Mar. 7,
2007).
415. Skaggs, 844 S.W.2d at 391 (emphasis added); see also Bowling v. Lexington-Lafayette Urban Cnty. Gov’t, 172
S.W.3d 333, 339 (Ky. 2005) (declaring that “[a] criminal defendant has ample opportunity to examine the
Commonwealth’ litigation files before trial”).
16 In the two cases of Hugh Marlowe and Charles Bussell, post-conviction relief has been affirmed by the
Kentucky Supreme Court. See Commonwealth v. Marlowe, 2006 WL 3386629, at *1-2 (Ky. Nov. 22, 2006)
(reversal of death sentence due to ineffective assistance of counsel during the penalty phase); Bussell, 226 S.W.3d at
102 (reversal of death sentence due to undisclosed evidence and ineffective assistance of counsel). As of October 1,
2011, the Kentucky Supreme Court has yet to affirm the trial courts’ grant of post-conviction relief in two other
cases, Miguel Soto and John Mills. See Soto v. Commonwealth, No. 99-CR-00041, slip op. at 7 (Oldham, Ky. Cir.
Ct. Jan. 31, 2011) (on file with author); Mills v. Commonwealth, No. 95-CR-00098, slip op. at 17 (Knox, Ky. Cir.
Ct. Aug. 16, 2011) (on file with author).
"17 Bussell, 226 S.W.3d at 102 (holding that the undisclosed evidence “undermined confidence in the outcome of
the trial, denying Bussell the right to a fair trial”). Bussell’s death sentence also was reversed due to ineffective
assistance of counsel. Id. at 103-07.
8 The Kentucky Attomey General is responsible for enforcement of the Kentucky Open Records Act. See
generally Ky. Rev. Stat. ANN. § 61.880 (West 2011). The Attorney General has issued opinions stating that
Kentucky law enforcement may deny a request for inspection of records where a party requests investigative records
related to a case in which an individual's full sentence has not been carried out. See, e.g., Ky. Op. ATTY. GEN. 10-
ORD-094 (“Therefore, under Skaggs v. Redford ... the [law enforcement agency] properly denied inspection of
criminal case records where the sentences had not been fully carried out.”); Ky. Op. ATTY. GEN. 09-ORD-104
(exempting law enforcement agencies from compliance with a reporter's request to inspect records related to a
criminal conviction, regardless of whether the convicted offender would pursue further judicial proceedings).
256
until his[/her] sentence has been carried out.”!!° That a death row inmate would be denied
government documents because the contents of those documents may provide a basis for not
executing the inmate—that is, disclosure of the document “harm[s]” the “prospective law
enforcement action” by supplying a reason not to end the inmate’ s life—is disconcerting. ”°
The result of this framework for post-conviction discovery and open-records disclosure is that an
inmate sentenced to death may be unable to secure an evidentiary hearing to better establish that
a serious constitutional violation occurred in his/her case, as the very information s/he needs to
present a meritorious claim for post-conviction relief remains both undisclosed and
undiscoverable.'*? The Commonwealth of Kentucky, therefore, fails to adhere to the
requirements of Recommendations #2 and #3.
The need to ensure that a capital trial proceeding is conducted fairly and in accordance with
constitutional and statutory safeguards is not outweighed by the Commonwealth's interest in
avoiding frivolous litigation that could result from permitting discovery during post-conviction
proceedings. The rationale supporting denial of a post-conviction petitioner's access to evidence
in the possession of third parties, like the Commonwealth's Attorney or law enforcement, fails to
account for the possibility and past instances of individuals who have had their convictions or
sentences reversed due to the revelation of prosecutorial misconduct or error that is not
uncovered until after the original trial.’””
The Kentucky Assessment Team, therefore, recommends that the Commonwealth amend its
statutes and court rules to permit inmates to engage in meaningful discovery to better develop the
factual basis of his/her claims prior to filing a post-conviction motion or petition. Although
49 Bowling, 172 S.W.3d at 339 (citing Skaggs, 844 S.W.2d at 390). The Kentucky Open Records Act provides
that “records or information compiled and maintained by county attomeys or Commonwealth's attorneys pertaining
to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and
shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no
action.” Ky. REV. STAT. ANN. § 61.878(1)(h) (West 2011).
20 ‘See Skaggs, 844 S.W.2d at 390.
21 The case of John Thompson, prosecuted in 1985 for murder in New Orleans and sentenced to death, is
instructive as to the serious need for discovery during post-conviction proceedings. See Connick v. Thompson, 131
S. Ct. 1350, 1371-76 (2011) (Ginsburg, J., dissenting) (recounting the facts and procedural history of Thompson’ s
case). One month before Thompson’s scheduled execution, an investigator hired by Thompson's post-conviction
counsel was permitted to search “[dJeep in the crime lab archives” of Orleans Parish; based on the investigator's
findings and “a serendipitous series of events,” Thompson’s advocates discovered evidence that exculpated him
from an earlier robbery conviction, which the prosecution had used to elevate the murder charge to a capital case.
Id. at 1374-75. Subsequently, the Louisiana Court of Appeals reversed Thompson’s murder conviction. Id.
Thompson's defense presented the newly discovered evidence at his murder retrial in 2003, and, “[a]fter deliberating
for only [thirty-five] minutes, the jury found Thompson not guilty.” Id. at 1376. Under Kentucky’s current
approach to post-conviction discovery and open-records disclosure, a law enforcement agency in the
Commonwealth could lawfully refuse a Kentucky death row inmate the very access that helped set John Thompson
free after he “served more than [eighteen] years in prison for crimes he did not commit.” Id. at 1376.
122 The reversal of numerous death penalty cases in North Carolina due to the prosecution’s failure to disclose
exculpatory information, prior to the state’s enactment of an “open file” discovery rule, demonstrates the need for
discovery in post-conviction proceedings: Since 1998, ten death penalty cases in North Carolina were “reversed
after trial because of prosecution failures to provide Brady information. All involved cases were tried before the
first open-file law went into effect, and all were reversed after the files of the prosecution and law enforcement were
opened.” Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The
Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257, 261 (2008).
257
sensitive to the “fishing expedition” concerns that animate Kentucky state court decisions
regarding post-conviction proceedings, federal courts nevertheless have recognized that “a
habeas petitioner is not required to show that the requested discovery would ‘unquestionably
lead to a cognizable claim for relief’ in order to obtain discovery.”'** As the odds increase over
time that information essential to an inmate’s petition may become lost or destroyed,
Commonwealth courts should make discovery more widely available to death row inmates who
are collaterally attacking the judgments in their cases, as is done in the federal courts. The
Commonwealth also ought to amend its Open Records Act to allow these petitioners to use the
public records laws to obtain materials in support of their post-conviction claims.
C. Recommendation #4
When deciding post-conviction claims on appeal, state appellate courts should
address explicitly the issues of fact and law raised by the claims and should issue
opinions that fully explain the bases for dispositions of claims.
A trial court’s denial of relief to a death row inmate under RCr 11.42 may be appealed to the
Kentucky Supreme Court.’ The civil rules of procedure largely govem the treatment of all
criminal appeals, including appeals on collateral review.'? Those rules, while allowing that
“[a]ppellate court opinions and orders may be announced orally,” further state that such opinions
“shall be reduced to writing.”!° Moreover, “[o]pinions and orders finally deciding a case on the
merits shall include an explanation of the legal reasoning underlying the decision.” *””
Recent opinions issued by the Kentucky Supreme Court in capital post-conviction cases have
addressed issues of fact and law raised by the claims and the Court has issued opinions fully
explaining its disposition of those claims. For example, in Woodall v. Commonwealth, the
Kentucky Supreme Court advised that “[w]e find A ppellant’s claims lack merit. However, due
to the severity of the punishment involved, we address all of Appellant’s allegations.”’° It
appears, therefore, that the Commonwealth is in compliance with Recommendation #4.
The importance of explicit and thorough state appellate court decisions is amplified by the legal
framework limiting federal habeas corpus review of state court decisions. To succeed in his/her
application for a federal writ of habeas corpus, an inmate in state custody must show that state
23 Simmons v. Simpson, 2009 WL 4927679, at *5 (W.D. Ky. Feb. 12, 2009) (citing Keenan v. Bagley, 262 F.
Supp. 2d 826, 838 (N.D. Ohio 2003)).
124" See Ky. R. CRIM. P. 12.04; Moore, 199 S.W.3d at 134-35. See also Ky. R. Civ. P. 74.02 (“The filing of a notice
of appeal in a case in which a death penalty has been imposed will automatically serve to transfer the appeal to the
Supreme Court.”); Leonard, 279 S.W.3d at 155-56 (“This Court has exclusive appellate jurisdiction over death
penalty matters, even when the appeal involves a collateral attack on a sentence of death.”).
"5 See Ky. R. CRIM. P. 12.02 (applying several of the civil rules pertaining to appeals to the criminal context,
which includes motions for post-conviction relief).
8 Ky. R. Civ. P. 76.28(1)(a).
VT Ky. R. Civ. P. 76.28(1)(b).
28 Woodall v. Commonwealth, 2005 WL 3131603, at *1 (Ky. Nov. 23, 2005) (“We find A ppellant’s claims lack
merit; however, due to the severity of the punishment involved, we address all of Appellant’s allegations.”). But see
Taylor v. Commonwealth, 63 S.W.3d 151, 168 (Ky. 2001) (“[W]e note that any allegation of error not specifically
addressed above has been considered and rejected as having no merit.”), abrogated on other grounds by Crawford v.
Washington, 541 U.S. 36 (2004).
258
court’s review of any claim: (1) “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established [f]ederal law;” or (2) “resulted in a decision that
was based on an unreasonable determination of the facts in light of the evidence presented in the
[s]tate court proceeding.”’“” Without a state court opinion clearly delineating its reasoning with
respect to each of an inmate’s claims for post-conviction relief, a federal court simply lacks
adequate information to conduct a proper habeas corpus analysis under federal law.'*” Indeed,
“Tilf [a] state court says nothing, most circuits have construed [federal statutory law] as creating
a presumption that the state courts correctly identified and applied controlling Supreme Court
precedent even when there is no objective reason to believe they did so.” 3!
The extraordinary deference afforded to state court opinions in death penalty cases underscores
the importance of the Kentucky Supreme Court's judicious approach capital post-conviction
proceedings. All of a death row inmate’s claims should be considered and an opinion issued
fully explaining the bases for disposition of those claims.
D. Recommendation #5
On the initial state post-conviction application, state post-conviction courts should
apply a “knowing, understanding, and voluntary” standard for waivers of claims of
constitutional error not preserved properly at trial or on appeal.
Recommendation #6
When deciding post-conviction claims on appeal, state appellate courts should apply
a “knowing, understanding, and voluntary” standard for waivers of claims of
constitutional error not raised properly at trial or on appeal and should liberally
apply a plain error rule with respect to errors of state law in capital cases.
An inmate may base his/her RCr 11.42 motion on a claim of constitutional error, but “[i]t is not
the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should
have been raised in the original proceeding. ...”!° Accordingly, for claims of constitutional
magnitude to be heard during post-conviction 1 review, an inmate must argue that his/her trial or
direct appeal counsel was ineffective and that counsel's ineffectiveness prejudiced the outcome
9 28 U.S.C. § 2254(d) (2010).
130 See, e.g., Cone v. Bell, 129 S. Ct. 1769, 1778 (2009) (recounting the federal district court’s “[I]amenting that its
consideration of [a Tennessee death row inmate’s] claims had been ‘made more difficult’ by the parties’ failure to
articulate the state procedural rules under which each of [the inmate’ s] claims had allegedly been defaulted”).
151 Tmpact of Federal Habeas Corpus Limitations on Death Penalty Appeals: Hearing Before the Subcomm. on the
Constitution of the H. Comm. on the Judiciary, 111th Cong. 41 (2009) (prepared statement of John H. Blume,
Professor of Law, Director, Comell Death Penalty Project, Cornell University Law School), available at
http://judiciary.house.gov/hearings/printers/111th/111-66_53944.pdf (last visited Nov. 1, 2011).
132" Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972); see also Sanborn, 975 S.W.2d at 908-09.
Similarly, an issue raised and decided on direct appeal will not be entertained during post-conviction review.
Thacker, 476 S.W.2d at 839 (Ky. 1972) (“This court has previously examined and passed on every ground alleged in
the RCr 11.42 motion, and the court will not retry those issues.”). An issue raised in a second or successive post-
conviction petition also will be precluded from consideration on the merits if the state court determines that “the
issue ... should have been raised in [the initial post-conviction petition].” See Woodall v. Commonwealth, 2005
WL 2674989, at *2 (Ky. Oct. 20, 2005) (citing Gross, 648 S.W.2d at 857).
259
of the trial.'"* Kentucky post-conviction courts will not, in other words, entertain the underlying
claim of constitutional error, not even in rare circumstances for exceptional reasons (e.g.,
fundamental fairness). It also is not difficult to imagine a death row inmate who is unable to
establish an ineffective assistance of counsel claim, but who could have established the
underlying claim of constitutional error.’ For this reason, application of a knowing, intelligent,
and voluntary standard for a waiver of constitutional claims is a fairer approach to review of
death row inmates’ claims of constitutional import.
In light of the foregoing, Kentucky death row inmates do not enjoy a “knowing, understanding,
and voluntary” standard for waivers of their constitutional claims— indeed, they may not present
these claims at all once the direct appeal process has concluded. Furthermore, for death row
inmates, in particular, the likelihood that an issue will be deemed precluded is heightened
through KRS 532.075’s mandate that every death sentence be reviewed on direct appeal by the
Kentucky Supreme Court, during which review “every prejudicial error [raised by an appellant]
must be considered, whether or not an objection was made in the trial court.” 135 ‘Thus, in Parrish
v. Commonwealth— a post-conviction review initiated under RCr 11.42— the Kentucky Supreme
Court refused to consider whether a death row inmate had “knowing[ly] and intelligent{ly]”
waived his Miranda rights, as the inmate had “not raise[d] [the] issue in his direct appeal,
[which] he could have... .”1°6
As post-conviction review in Kentucky precludes raising the issue of an unknowing,
misunderstood, or involuntary waiver of an inmate’s constitutional claims whenever that issue
could have been raised on direct appeal, the Commonwealth of Kentucky is not in compliance
with Recommendations #5 and #6.
‘88 All ineffective assistance of counsel claims are examined under the standards set forth in Strickland v.
Washington. See Strickland, 466 U.S. at 668; Gall, 702 S.W.2d at 39.
13 To succeed on a claim of ineffective assistance of counsel, an inmate must show both deficient performance and
prejudice. See Strickland, 466 U.S. at 668; Gall, 702 S.W.2d at 39. See also Simmons v. Commonwealth, 191
S.W.3d 557, 561-62 (Ky. 2006) (“A convicted defendant claiming ineffective assistance of counsel has the burden
of: (1) identifying specific errors by counsel; (2) demonstrating that the errors by counsel were objectively
unreasonable under the circumstances existing at the time of trial; (3) rebutting the presumption that the actions of
counsel were the result of trial strategy; and (4) demonstrating that the errors of counsel prejudiced his right to a fair
trial.”), overruled on other grounds by Leonard, 279 S.W.3d at 159.
135 Ice v. Commonwealth, 667 S.W.2d 671, 674 (Ky. 1984). The standard of review for unpreserved errors raised
pursuant to KRS 532.075(2) recently was reaffirmed in Hunt v. Commonwealth:
Assuming that the so-called error occurred, we begin by inquiring: (1) whether there is a
reasonable justification or explanation for defense counsel's failure to object, e.g., whether the
failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation,
whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are
persuasive that, minus the error, the defendant may not have been found guilty of a capital crime,
or the death penalty may not have been imposed.
Hunt v. Commonwealth, 304 S.W.3d 15, 28 (Ky. 2009) (quoting Johnson v. Commonwealth, 103 S.W.3d 687, 691
(Ky. 2003)).
86" Parrish, 272 $.W.3d at 176.
260
E. Recommendation #7
The states should establish post-conviction defense organizations, similar in nature
to the capital resources centers de-funded by Congress in 1996, to represent capital
defendants in state post-conviction, federal habeas corpus, and clemency
proceedings.
Trial courts in Kentucky are not required to appoint counsel in state post-conviction proceedings
unless the merits of the initial RCr 11.42 motion warrant an evidentiary hearing.’*” If a hearing
is granted and the inmate makes a specific request for counsel in writing, the court then must
make a determination as to inmate's indigent status.'*® If s/he is deemed indigent, counsel must
be appointed for the remainder of the proceeding, which includes any appeal taken from the trial
court’s resolution of the motion.'”® If the petitioner does not request appointment of counsel, the
court has no duty to so sua sponte.’“° Furthermore, if appointed counsel and the court jointly
determine that “it is not a proceeding that a reasonable person with adequate means would be
willing to bring at his or her own expense, there [is] no further right to be represented by
counsel.” 4?
In practice, however, the Department of Public Advocacy (DPA) typically provides death row
inmates with counsel during post-conviction proceedings.'“? DPA policy requires two public
defenders to represent a death row inmate during all state post-conviction proceedings, including
the filing of the initial RCr 11.42 petition.”
With respect to federal habeas corpus proceedings, staff attorneys from DPA or the Louisville-
Jefferson County Public Defender Corporation (Metro Defender) generally represent the
Commonwealth’s death row inmates.’ Federal law stipulates that “one or more” qualified
attorneys undertaking representation of a death row inmate during federal habeas corpus
proceedings must be appointed prior to the filing of a formal, legally sufficient habeas
petition.“
187 Ky. R. Crim. P. 11.42(5) (“If the answer raises a material issue of fact that cannot be determined on the face of
the record the court shall grant a prompt hearing and, if the movant is without counsel, shall upon specific request by
the movant appoint counsel to represent the movant in the proceeding, including appeal.”).
Id.
139 Id.; Fraser, 59 S.W.3d at 453.
140 Fraser, 59 S.W.3d at 452.
MY" Ky. REV. STAT. ANN. § 31.110(2)(c) (West 2011).
12° Interview with Marguerite Thomas, supra note 49. In Fraser v. Commonwealth, the Kentucky Supreme Court
found that KRS 31.110(2)(c) describes when DPA may provide representation in post-conviction proceedings, even
without judicial appointment, whereas RCr 11.41(5) describes when counsel must be appointed during post-
conviction proceedings. Fraser, 59 S.W.3d at 456.
43 DPA POLICIES, supra note 51; Interview with Marguerite Thomas, supra note 49.
4 DPA Interview, supra note 50; Interview by Sarah Turberville and Paula Shapiro with Louisville Metro Public
Defender’s Office (Metro Defender), June 14, 2010 (on file with author).
M5 18 U.S.C. § 3599(a)(2) (2010); see also McFarland v. Scott, 512 U.S. 849, 856-57 (1994).
261
Finally, while Kentucky has not adopted any rules, regulations, laws, or procedures requiring the
appointment of counsel to inmates petitioning for clemency, both DPA and Metro Defender
provide representation to their clients through clemency and execution.“
While it is commendable that the Commonwealth's public defender entities voluntarily
undertakes representation of death row inmates during post-conviction proceedings, federal
habeas corpus, and clemency, Commonwealth law does not guarantee the provision of counsel
during evaluation, preparation, and presentation of an initial post-conviction claim or during
clemency. The right to counsel during the claim development stage is not assured, especially
given the current financial constraints facing the Commonwealth. These constraints pose a real
threat that the public defender may not be able to voluntarily undertake such representation of
death row inmates in the future. '4”
Therefore, Kentucky only partially complies with Recommendation #7.
The Kentucky Assessment Team recommends that the Commonwealth require the appointment
of counsel to death row inmates petitioning for post-conviction relief during the claim-
development stage of these proceedings and that representation continue through the state and
federal collateral review and clemency processes. '“°
F. Recommendation #8
For state post-conviction proceedings, the State should appoint counsel whose
qualifications are consistent with the recommendations in the ABA Guidelines for
the Appointment and Performance of Defense Counsel in Death Penalty Cases. The
state should compensate appointed counsel adequately and, as necessary, provide
sufficient funds for investigators and experts.
Qualifications of State Post-Conviction Counsel
The Commonwealth has not formally adopted a law or rule governing the requisite qualifications
required of an attorney who undertakes representation of a death row inmate during post-
conviction proceedings. However, as discussed in Chapter Six on Defense Services, DPA has
adopted, by reference, the ABA Revised Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases, as well as specific policies governing the minimum
146 DPA POLICIES, supra note 51, at §§ 18.01(E)(5)-(7), 18.09 (pertaining to “Execution Protocol”).
“7 For example, while Kentucky’s public defenders could similarly undertake representation of non-capital cases
on post-conviction review during the claim development stage, resources allow for them to undertake this
representation only if an evidentiary hearing is granted in those non-capital cases. DPA Interview, supra note 50;
Metro Defender Interview, supra note 144.
“8 See e.g., Fraser, 59 S.W.3d at 461-62 (Keller, J. dissenting) ("KRS 31.110 [is] susceptible to only one
interpretation—the General Assembly intends to provide for the appointment of counsel in post-conviction
proceedings .... Even if the majority is correct that litigants infrequently obtain relief under RCr 11.42, I believe
that fact merely demonstrates the need for the assistance of counsel in the evaluation, preparation, and presentation
of those claims”).
262
performance of post-conviction counsel, to govem its assignment of counsel during post-
conviction proceedings.“
DPA policy also requires counsel contracted to undertake capital representation during post-
conviction proceedings to have demonstrated skills in accordance with the ABA Guidelines.’
Contract counsel also must agree to participate in a case review at least ninety days before filing
a post-conviction motion on behalf of a death row inmate and to participate in workshops or
practice arguments preceding a post-conviction hearing.’ The Kentucky Assessment Team
was unable to determine, however, the extent to which these qualification standards are enforced.
Furthermore, staff attorneys with DPA or Metro Defender generally represent the
Commonwealth’s death row inmates in federal habeas corpus proceedings.'” In accordance
with federal law, these inmates must be represented by at least one attorney who has been
admitted to practice in the U.S. Court of Appeals for the Sixth Circuit for at least five years and
who has had at least three years of experience in handling felony appeals in the Sixth Circuit.’°°
Finally, in addition to representing death row inmates during clemency, DPA also includes, in its
Post Trial Division Minimum Performance Standards, specific requirements relating to the
performance of its attomeys providing this representation.’
Compensation for State Post-Conviction Counsel
DPA or Metro Defender attommeys undertaking representation during post-conviction
proceedings are paid salaries set in accordance with the merit system.’° Private contract counsel
engaged by DPA or Metro Defender to provide capital representation are compensated at an
hourly rate up to a maximum cap, and these funds are paid out of the contracting agency’s
operating budget.
As of July 1, 2005, counsel contracting with DPA to provide capital representation during post-
conviction proceedings are compensated at a rate of $75 per hour for in-court and out-of-court
work, with a maximum fee of $50,000 per attomey, plus reasonable expenses. °° Contracts
“49 DPA POLICIES, supra note 51, at §§ 8.04(I)(A), 18.01 (pertaining to “Post Trial Division Minimum Performance
Standards”). For an exhaustive discussion of the qualification and performance standards required of DPA post-
conviction counsel in death penalty cases, see Chapter Six on Defense Services.
0 Td. at § 8.04(1)(C).
I Td. at § 8.04(1)(D)(1), (4).
132 Interview with Marguerite Thomas, supra note 49; Metro Defender Interview, supra note 144.
153 18 U.S.C. § 3599(c) (2010). For good cause, the court may appoint another attomey “whose background,
knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due
consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.” 18
U.S.C. § 3599(d) (2010).
‘54 DPA POLICIES, supra note 51, at § 18.01(E)(5)-(7).
155 Ky. REV. STAT. ANN § 31.020(4) (2011); Petition for Declaratory Judgment, Lewis v. Hollenbach, Franklin
Circuit Court Division II, Civil Action No. 08-CI-1094, at 6 (filed Jun. 30, 2008). For a discussion of public
defender salaries in the Commonwealth, see Chapter Six on Defense Services.
156 DPA POLICIES, supra note 51, at § 8.04(II)(B)(2)(a). Contracts entered into between February 1, 2004 and July
1, 2005 provided compensation at a rate of $75 per hour for in-court and out-of-court work, with a maximum fee of
$30,000 per attomey, plus reasonable expenses. Id. at § 8.04(I1)(B)(2)(a).
263
entered into before February 1, 2004, which had an established rate of $50 per hour with a
maximum fee of $20,000, remain in effect.'*’ Counsel contracting with Metro Defender to
provide post-conviction representation currently are compensated at a rate of $50 per hour, with
a maximum fee of $15,000 per attomey.'*
These funding restrictions fail to comply with the ABA Guidelines.'° The hourly rates and
maximum caps on compensation are inadequate to ensure high quality legal representation and
also may serve as a deterrent to attracting individuals with the needed qualifications to undertake
the complex and time-consuming representation of inmates awaiting execution.
Finally, attorneys appointed pursuant to 18 U.S.C. section 3599 for the purposes of representing
inmates during federal habeas corpus proceedings are entitled to compensation at a rate of not
more than $178 per hour for both in-court and out-of-court work.’ There is no compensation
maximum for appointed counsel during federal habeas corpus proceedings in death penalty
cases.'°! If DPA undertakes representation of a death row inmate in a federal habeas corpus
proceeding, the Department will be compensated in accordance with the fee structure set out in
section 3599.’ — Federally-appointed counsel also may undertake and be entitled to
compensation for representing death row inmates during state clemency proceedings.
Compensation for Expert Assistance
Under KRS 31.185, Kentucky must provide payment for expert witness fees or any other “direct
expense, including the cost of a transcript . . . that is necessarily incurred in representing a needy
person ....”' While capital defendants generally are able to show reasonable necessity in
157 DPA POLICIES, supra note 51, at § 8.04(1)(B).
158 Pet. for Declaratory Judgment, Lewis v. Hollenbach, Franklin Circuit Court Division II, Civil Action No. 08-
CI-1094, at 11 (filed Jun. 30, 2008); Metro Defender Interview, supra note 144.
‘58° DPA policy recognizes that its compensation policies for contract counsel in capital cases reflect “DPA’s efforts
to meet the [ABA] standards taking into account current fiscal realities .... The ABA Standards for Criminal
Justice set forth that there should be no upper cap placed on capital cases but rather an appropriate per hour fee.
Given our current budget situation we are not able to meet that standard completely.” DPA POLICIES, supra note 51,
at § 8.04(I1)(B)(1)(c).
160 18 U.S.C. § 3599(g)(1) (2010); see also 7 U.S. GUIDELINES FOR ADMINISTERING THE CJA AND RELATED
STATUTES § 610.10.10 (2010), available at http://www.uscourts.gov/FederalC ourts/A ppointmentOfC ounsel/
CJA GuidelinesForms/vol7PartA /vol7PartA Chapter6.aspx .
lel 7 U.S. GUIDELINES FOR ADMINISTERING THE CJA, supra note 160, at § 610.10.20.
1©2 Interview by Paula Shapiro with Tim Amold, Post Trial Division Director, Department of Public Advocacy,
Nov. 5, 2010 (on file with author) (noting that DPA attommeys have not always requested such funding).
163 18 U.S.C. § 3599(e) (2010); Harbison v. Bell, 556 U.S. 180, 1491 (2009) (stating that petitioner’s “case
underscores why it is entirely plausible that Congress did not want condemned men and women to be abandoned by
their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail
cells”) (quotations omitted).
let Ky. REV. STAT. ANN. § 31.185(3) (West 2011) (the fund is administered by the Finance and Administration
Cabinet); SPANGENBERG GRP., PUBLIC DEFENDER APPLICATION FEES: 2001 UPDATE 10 (2002), available at
http://www. abanet.org/legalservices/downloads/sclaid/indigentdefense/pdapplicationfees2001-narrative.pdf (noting
that the KRS 31.185 fund was established “to cover expert witness fees and other comparable expenses associated
with providing indigent defense services.”). In addition, “[e]xpenses incurred in the representation of needy persons
confined in a state correctional institution” are paid from the KRS 31.185 special fund. Ky. REV. STAT. ANN. §
31.185(6) (West 2011).
264
order to obtain KRS 31.185 funding for their original trial proceedings,’ the availability of
KRS 31.185 funding is limited during post-conviction proceedings.'®°
First, an indigent post-conviction petitioner must set forth sufficient allegations to necessitate an
evidentiary hearing before a court may consider authorizing KRS 31.185 funds for the
petitioner.!°’ However, that a post-conviction petition has met the threshold requirement for an
evidentiary hearing does not mean the petitioner is “automatically” entitled to funding. Instead,
trial courts may exercise their discretion to examine the post-conviction petition to determine
whether expending KRS 31.185 funding is “reasonably necessary for a full presentation of the
petitioner’s case.”’®* It further appears that death row inmates face much greater difficulty
obtaining expert assistance resources for post-conviction— rather than trial and direct review—
proceedings. ©?
Kentucky death row inmates also appear to have a limited right to receive state-funded expert
assistance by entities independent of the govemment. For example, the Kentucky Supreme
Court recently required a death row inmate seeking to establish a claim of mental retardation to
undergo an evaluation at a Commonwealth-operated Psychiatric center, rather than by “a private
psychological expert,” as the inmate had sought.'” Because the inmate already had been
convicted, the Court reasoned that any inquiry by mental health professionals affiliated with the
Commonwealth would only, if at all, “minimally” implicate his constitutional rights to remain
silent and “to confidential defense communications.”'”' The Court separately has held that
funding for private mental health testing cannot be provided through KRS 31.185 unless an
inmate demonstrates that use of state facilities would be impractical.”
‘65 For a discussion on the availability of KRS 31.3185 funding, see Chapter Six on Defense Services.
‘65 Until 2006, KRS 31.185 was deemed inapplicable to post-conviction proceedings by the Kentucky Supreme
Court. Hodge v. Coleman, 244 S.W.3d 102, 107 (Ky. 2008) (“Confusion in our law has resulted from the fact that
Stopher seemed to establish a bright line rule that no funds were available under KRS 31.185 for indigent post-
conviction petitioners while Paisley, without even mentioning Stopher, seemed to open up the possibility for expert
funding for a post[- conviction petitioner.”).
187 Hodge, 244 S.W.3d at 108 (“[I]t is clear we went too far in Stopher when we said that KRS 31.185 has no
application post-conviction proceedings.”) (discussing Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005)).
18 Mills, 268 S.W.3d at 367 (noting that the “trial court still maintains the discretion to deny such funds if it
determines that the expert testimony is not reasonably necessary”); Hodge, 244 S.W.3d at 108 (clarifying that the
post-conviction trial court may scrutinize the petitioner’s twenty-three out-of-county witness list and authorize travel
expenses “for those out-of-county witnesses reasonably necessary” for the petitioner’ s claims to be fully presented).
169" See, e.g., Hodge, 244 S.W.3d at 108; Mills, 268 S.W.3d at 367; Johnson v. Commonwealth, 2008 WL 4270731,
at *7 (Ky. Sept. 18, 2008) (“Finally, Johnson argues for payment of expert expenses in the RCr 11.42 proceedings.
An indigent post-conviction prisoner may not receive public funds under KRS 31.185 unless a court of competent
jurisdiction has determined that the post-conviction petition sets forth allegations that necessitate an evidentiary
hearing. Because we have determined that no hearing is required on the allegations of mental illness, but only on
the claims that the guilty plea was involuntary, appellant’s request for expert funds did not need to be granted.”);
Foley v. Commonwealth, 2010 WL 1005873, at *3 (Ky. Mar. 18, 2010); DPA Interview, supra note 49; Metro
Defender Interview, supra note 144. For more information on access to experts, see Chapter Thirteen on Mental
Retardation and Mental Illness; see also Chapter Six on Defense Services.
170 White v. Payne, 332 S.W.3d 45, 47 (Ky. 2010).
1 Td. at 50-51. For more discussion of death row inmates’ access to mental health experts, see Chapter Thirteen
on Mental Retardation and Mental Illness.
' Commonwealth v. Paisley, 201 S.W.3d 34, 36 (Ky. 2006).
265
Finally, in federal habeas corpus and clemency proceedings, a federal court may authorize
funding to contract counsel and public defense attorneys for the purposes of obtaining
investigative, expert, or other services reasonably necessary to the representation.'” These fees
are capped at $7,500, unless the court authorizes expenses in excess of the cap.’ The
availability of counsel, however, does not guarantee counsel’s access to necessary resources for
filing a clemency petition.”
Conclusion
It is encouraging that Commonwealth public defender agencies undertake representation of death
row inmates during post-conviction proceedings and that DPA, in particular, has promulgated—
on its own initiative—minimum qualifications for departmental attomeys providing this
assistance. However, this representation is elective and subject to a maximum fee, and death row
inmates have limited access to state-funded expert assistance to support their post-conviction
motions and petitions. Accordingly, the Commonwealth of Kentucky only partially complies
with Recommendation #8.
G. Recommendation #9
State courts should give full retroactive effect to United States Supreme Court
decisions in all proceedings, including second and successive post-conviction
proceedings, and should consider in such proceedings the decisions of federal
appeals and district courts.
While a State cannot change the retroactivity doctrine applied by federal courts in federal habeas
corpus proceedings, it may change its own post-conviction rules and procedures so as to give full
retroactive effect to U.S. Supreme Court decisions.‘ This more generous approach to
retroactivity better ensures that valid constitutional claims will be equally cognizable and,
therefore, that similarly situated inmates will not receive disparate treatment on post-conviction
review.
Retroactive Effect of U.S. Supreme Court Decisions
A death row inmate may file for a second or successive motion for post-conviction relief, 10
despite Kentucky’s three-year statute of limitations, if the inmate proves that “the fundamental
constitutional right asserted [in the petition] was not established within the [three-year, statute-
of-limitations] period provided for [in Rule 11.42] and [the right] has been held to apply
3 18 U.S.C. § 3599(f) (2010); see also Baze v. Parker, 711 F. Supp. 2d 774, 778-79 (E.D. Ky. 2010). See also
Chapter Nine on Clemency.
14 "18 U.S.C. § 3599(g)(2) (2010).
15 See Baze, 711 F.Supp.2d at 780-81.
16 See Leonard, 279 S.W.3d at 159-60 (citing Danforth, 552 U.S. at 264 (holding that state courts may give
broader effect to new rules of criminal procedure than is required by Teague, 489 U.S. at 288)).
‘77 second or successive motion is filed subsequent to the initial post-conviction petition and challenges the same
judgment of conviction and sentence as the initial post-conviction petition.
266
retroactively.”!”° If the right applies retroactively, then the post-conviction petition must be filed
within three years after the event creating the exception occurred.”
However, Kentucky courts will not give full retroactive effect to changes in the law announced
by the U.S. Supreme Court unless the new nule (1) “‘places certain kinds of primary, private
individual conduct beyond the criminal law-making authority to proscribe”; or (2) “requires the
observance of those procedures that ... are implicit in the concept of ordered liberty.””"® In
other words, “Kentucky’s constitutional retroactivity rule is no broader than that employed by
the federal courts,” although, as the Kentucky Supreme Court recognized in Leonard v.
Commonwealth, the Commonwealth could adopt a more generous retroactivity rule.’ If a new
rule of criminal procedure is held not to apply retroactively, then only inmates whose cases
remain on direct appeal may take advantage of that new rule.'””
In some instances, the Commonwealth's courts have refused to recognize a petitioner's right to
avail himself/herself of new substantive rules announced by the U.S. Supreme Court. For
example, in Taylor v. Commonwealth, the Kentucky Supreme Court held that “Batson [v.
Kentucky] applied retroactively to Taylor’s case because his case was still pending [on direct]
review ... when Batson was decided.” * However, this retroactivity does not extend to death
row inmates whose direct appeal was final, such as those in the midst of or having completed
post-conviction review, who possess viable of racial discrimination during jury selection.’™
Likewise, although it recognized that the U.S. Supreme Court's decisions in Evitts v. Lucey’
and Smith v. Robbins’® had established “the right to effective appellate counsel,” the Kentucky
Supreme Court nonetheless declared that its “ruling [in Hollon v. Commonwealth] [would] have
prospective effect only.” 1°”
Furthermore, in Bowling v. Commonwealth, the Kentucky Supreme Court rejected a successive
motion for post-conviction relief based on the U.S. Supreme Court’s then-recent decision in
"8 Ky. R. CRIM. P. 11.42(10)(b).
‘Ky. R. CRIM. P. 11.42(10).
89 Leonard, 279 S.W.3d at 159 (quoting Teague, 489 U.S. at 307).
18 Td. at 159-60 (“Teague is not binding on the states if they choose to broaden the class of retroactively applicable
tules ... [nlor is Teague binding as to a new mule grounded solely in state law (as opposed to the federal
constitution).”).
182 Td. at 160 (citing Griffith, 479 U.S. at 328); Teague, 489 U.S. at 310. As the Kentucky Supreme Court
recognized in Leonard, however, determining retroactivity by measuring from the date when a direct appeal became
final does not, for all new rules, make sense. See, e.g., Leonard, 279 S.W.3d at 160 (“The cutoff for retroactivity of
anew collateral attack rule is thus when the order resolving a collateral attack becomes final.”).
183 Taylor, 63 S.W.3d at 157, abrogated on other grounds by Crawford, 541 U.S. at 68.
18 Batson v. Kentucky, 476 U.S. 79, 96 (1986) (emphasis omitted).
185 Evitts v. Lucey, 469 U.S. 387 (1985).
8° Robbins, 528 U.S. at 259.
187 Hollon, 334 S.W.3d at 439. See also Curtis v. Commonwealth, Nos. 2005-CA-001367-MR, 2006-CA-000041-
MR, 2007 WL 1192070, at *4 (Ky. App. Ct. Apr. 6, 2007) (declining to afford inmate, on collateral review, the
benefit of Georgia v. Randolph, 547 U.S. 103, 120 (2006), which held that “a warrantless search of a shared
dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as
reasonable as to him on the basis of consent given to the police by another resident”); Matthews v. Commonwealth,
2011 WL 4507962, at *5 (Ky. App. Ct. Sept. 30, 2011) (“[R]etroactive application of new mules is generally not
given in cases involving collateral review.”).
267
Atkins v. Virginia, which prohibited the execution of mentally retarded offenders.'** Because
Thomas Bowling had failed to raise mental retardation as a bar to execution in direct appeal
proceedings adjudicated prior to Atkins but while Kentucky’s statutory ban on executing
mentally retarded offenders remained in place, the Court would not entertain the claim,
reasoning that petitioner had waived his/her constitutional right “by failure to timely assert it.”’®°
However, even if “Atkins [did] reaffirm[] [K entucky’s] preexisting prohibition against executing
the mentally retarded,” 190 the U.S. Supreme Court’s decision in Atkins nonetheless established a
new “fundamental constitutional right.”'® Accordingly, Bowling and any other petitioner
seeking the benefit of Atkins’ holding ought to have that holding retroactively applied to their
case— regardless of whether they had, or could have, raised the issue of mental retardation as a
bar to execution in prior proceedings.'”
Consideration of Federal A ppeals and Federal District Courts’ Opinions
In their discretion, Kentucky post-conviction courts have not always followed the final opinions
of federal district and appeals courts in deciding constitutional claims during post-conviction
relief. For example, in a 2008 case, the U.S. Court of Appeals for the Sixth Circuit stated
explicitly that the Kentucky Supreme Court’s failure to recognize a claim of ineffective
assistance of appellate counsel during the first direct appeal as of right was “in direct conflict
with the U.S. Supreme Court’s holding in Evitts v. Lucey and Smith v. Robbins.”'®* To its credit,
the Kentucky Supreme Court announced in late 2010 that it would, going forward, recognize
ineffective assistance of appellate counsel claims.!** However, in post-conviction cases heard
after the Sixth Circuit’s decision in 2008 through the Kentucky Supreme Court’s decision in
2010, Kentucky courts continued to refuse to entertain claims of ineffective assistance of
appellate counsel on the merits.!°°
188 A tkins v. Virginia, 536 U.S. 304 (2002).
ae Bowling, 163 S.W.3d at 371. See also Ky. REV. STAT. ANN. § 532.140 (West 2011) (barring the execution of
mentally retarded offenders).
ae Bowling, 163 S.W.3d at 371 (quotations omitted); see also In re Bowling, 422 F.3d 434, 440 (6th Cir. 2005)
(denying permission to file a second or successive habeas petition because petitioner did not make a prima facie
showing that he was mentally retarded).
11 Ky. R. CRIM. P. 11.42(10)(b) (emphasis added). See also Bowling, 163 S.W.3d at 385-86 (Keller, J.,
dissenting) (“Thus, the mere fact that Kentucky's statutes provided (and still provide) a pretrial means to challenge
the applicability of the death penalty when the defendant may be mentally retarded is not enough to protect the
interest recognized in Atkins. As the [U.S.] Supreme Court noted in [Ford v. Wainwright, 477 U.S. 399, 410 (1986)
(plurality opinion),] a similar case involving the execution of an insane person, ‘Once a substantive right or
restriction is recognized in the Constitution, . . . its enforcement is in no way confined to the rudimentary process
deemed adequate in ages past.'”). For further discussion on Kentucky courts’ treatment of mental retardation claims
during post-conviction proceedings, see Chapter Thirteen on Mental Retardation and Mental Illness.
1 Bowling, 163 S.W.3d at 371 (citing In re Hicks, 375 F.3d 1237, 1240 (11th Cir. 2004) (denying a mental
retardation claim predicated on Atkins in part because petitioner had unsuccessfully litigated the issue both during
his state trial, which relied on a state case, Fleming v. Zant, 386 S.E.2d 339, 342 (1989), in which the Supreme Court
of Georgia held that executing the mentally retarded is prohibited by the Georgia constitution, and in his federal
habeas petition, which relied on a Georgia statute that prohibits the execution of the mentally retarded. See Ga.
CopE ANN. § 17-70-131 (2010))).
il Boykin v. Webb, 541 F.3d 638, 647-48 (6th Cir. 2008) (citing Lucey, 469 U.S. at 387; Robbins, 528 U.S. at
259), reh’g and reh’g en banc denied, 541 F.3d 638, 638 (2009).
' “Hollon, 334 $.W.3d at 436.
195 See e.g., Parrish, 272 S.W.3d at 173; Wheeler v. Commonwealth, 2008 WL 5051579, at *9 (Nov. 26, 2008).
268
Because Kentucky does not always give retroactive effect to changes in the law announced by
the U.S. Supreme Court, the Commonwealth is in partial compliance with Recommendation #9.
H. Recommendation #10
State courts should permit second and successive post-conviction proceedings in
capital cases where counsels’ omissions or intervening court decisions resulted in
possibly meritorious claims not previously being raised, factually or legally
developed, or accepted as legally valid.
Counsel’s Omissions
Generally, in an initial RCr 11.42 motion for post-conviction relief, an inmate in Kentucky must
state all grounds for holding the sentence invalid of which s/he has knowledge, and “[flinal
disposition of [that initial RCr 11.42] motion [will] conclude all issues that could reasonably
have been presented in the same proceeding.” Furthermore, Kentucky prohibits inmates from
raising, in any post-conviction proceeding, claims that “could and should have been litigated in
the direct appeal,” as well as claims that actually were litigated in the direct appeal.!%”
Therefore, an omission by counsel in a previous capital post-conviction proceeding resulting in
meritorious claim not being raised would not be a permissible basis upon which to file a second
or successive post-conviction petition.!®
Intervening Court Decisions
Kentucky appears to permit an exception to the bar against second or successive petitions in the
limited circumstance in which a constitutional right has been found to apply retroactively.
However, as mentioned in Recommendation #9, Kentucky’s retroactive application of new
constitutional rules remains limited.
Moreover, Kentucky courts do not appear to permit the filing of a second or successive petition
when an intervening state court decision resulted in a possibly meritorious claims not being
raised, developed, or accepted as legally valid. For example, prior to the 2006 decision of
Martin v. Commonwealth,’ an issue raised and rejected on direct appeal could not be relitigated
in post-conviction proceedings “by claiming that it amounts to ineffective assistance of
counsel.”*°° In Martin, however, the Kentucky Supreme Court announced a new rule permitting
196 Ky. R. Crim. P. 11.42(3); Sanders v. Commonwealth, 339 S.W.3d 427, 438 (Ky. 2011) (noting that RCr
11.42(3) “has been held to bar successive RCr 11.42 motions”). See also McQueen, 949 S.W.2d at 416 (holding that
CR 60.02 may not be used to relitigate issues that could have been presented on direct appeal or in RCr 11.42
proceedings).
197 Leonard, 279 S.W. 3d at 156.
198 Moore, 199 S.W.3d at 139 (“Our holding in this regard should not be construed as sanctioning the filing of a
subsequent RCr 11.42 motion for the purpose of claiming ineffective assistance of counsel in litigating a previous
RCr 11.42 motion.”); Hollon, 334 S.W.3d at 437 (“[W]e additionally emphasize that [ineffective assistance of
appellate counsel] claims are limited to counsel's performance on direct appeal; there is no counterpart for counsel’ s
performance on RCr 11.42 motions or other requests for post-conviction relief.”).
°° Martin, 207 S.W.3d at 1.
200 Sanborn, 975 S.W.2d at 908-09 (citing Brown v. Commonwealth, 788 S.W.2d 500 (Ky. 1990)).
269
post-conviction petitioners to raise an ineffective assistance of trial counsel claim derived from
an error alleged on direct appeal.”"' Under Martin, for example, a prisoner whose claim of
prosecutorial misconduct was raised and rejected on direct appeal may seek relief during post-
conviction proceedings on a claim that counsel’s failure to object to the alleged prosecutorial
misconduct at trial constituted ineffective assistance of counsel.” While a number of death row
inmates had unsuccessfully raised this identical claim prior to Martin,?°° the Kentucky Supreme
Court later determined that inmates whose collateral attacks were final when Martin was decided
could not raise the issue in a second or successive request for post-conviction relief.”
Similarly, in Hollon v. Commonwealth, the Kentucky Supreme Court announced that it would
recognize an ineffective assistance of counsel claim “premised upon appellate counsel’s alleged
failure to raise a particular issue on direct appeal,” overruling Hicks v. Commonwealth.”
However, despite the new substantive constitutional right recognized in Hollon, the Court held
that the ruling had “prospective effect only.”?”
Conclusion
Because Kentucky does not permit successive petitions in capital cases where counsels’
omissions resulted in possibly meritorious claims not being raised or fully developed, or where
intervening court decisions resulted in possibly meritorious claims not being raised, developed,
or accepted as legally valid, the Commonwealth is not in compliance with Recommendation #10.
201 See Martin, 207 S.W.3d at 1; Leonard, 279 S.W. 3d at 155 (“While such an ineffective-assistance [of counsel]
claim is certainly related to the direct error, it is simply not the same claim. And because it is not the same claim,
the appellate resolution of an alleged direct error cannot serve as a procedural bar to a related claim of ineffective
assistance of counsel.”). However, where the collateral claim of ineffective assistance of counsel is presented in the
course of the direct appeal, the issue cannot be relitigated in post-conviction proceedings. Leonard, 279 S.W.3d at
159 n.3 (citing Bowling, 981 S.W.2d at 549; Wilson v. Commonwealth, 975 S.W.2d 901, 903-04 (Ky. 1998)).
202 Leonard, 279 S.W. 3d at 157.
203 See, e.g., Sanborn, 975 S.W.2d at 908-09; Baze, 23 S.W.3d at 624; Haight, 41 S.W.3d at 441; Sanders, 89
S.W.3d at 385; Hodge, 116 S.W.3d at 467-68; Mills, 170 S.W.3d at 326; Simmons, 191 S.W.3d at 561.
204 Leonard, 279 S.W. 3d at 159. In Leonard, the petitioner's initial RCr 11.42 petition had been filed in 1996 and
a decision finalized on appeal in 1999, six years before the Kentucky Supreme Court's decision in Martin. Leonard,
279 S.W.3d at 160. While “Martin broke new ground by allowing claims that were procedurally barred under the
prior case law,” it could not be applied retroactively to petitioners like Leonard whose collateral attacks were final
before the rule in Martin was decided. Id. at 161-62.
205 Hollon, 334 S.W.3d at 436. Previous to Hollon, ineffective assistance of counsel claims based upon appellate
counsel’s performance at direct appeal were barred under Hicks v. Commonwealth, 825 S.W.2d 280 (Ky. 1992).
Prior to Hollon, Kentucky had permitted “a reinstated or belated appeal” when incompetence by counsel, “especially
state-appointed counsel,” resulted in an indigent defendant's loss of his/her statutory right to appeal. Moore, 199
S.W.3d at 139. The Hollon Court noted that a panel of the Kentucky Court of Appeals “joined other [Kentucky
appellate court panels] and at least one panel of the U.S. Court of Appeals for the Sixth Circuit in urging us to
reconsider our Hicks policy as incompatible with, or at least as out of harmony with, U.S. Supreme Court
precedent.” Hollon, 334 S.W.3d at 433-34.
206 Hollon, 334 S.W.3d at 439 (holding that application of the new right would apply only to the case at bar, to
cases pending on appeal in which the issue of ineffective assistance of appellate counsel had been raised and
preserved, and to prospective cases in the trial courts and noting that “[p]rospective application is appropriate
because, although our courts have not until now provided a forum for [ineffective assistance of counsel] claims
based on an allegedly inadequate appellate brief, the federal courts have provided a forum through habeas review.”).
270
I. Recommendation #11
In post-conviction proceedings, state courts should apply the harmless error
standard of Chapman v. California, 386 U.S. 18 (1967), which requires the
prosecution to show that a constitutional error is harmless beyond a reasonable
doubt.
In Chapman v. California, the U.S. Supreme Court stated that “before a federal constitutional
error can be held harmless, the court must be able to declare a belief that it was harmless beyond
a reasonable doubt.””"” The burden to show that the error was harmless falls on the “beneficiary
of the error either to prove that there was no injury or to suffer a reversal of his[/her] erroneously
obtained judgment.”* The Kentucky Rules of Criminal Procedure applicable to state post-
conviction proceedings do not use Chapman’s “reasonable doubt” language to describe the
Commonwealth's approach to harmless-error analysis. Instead, in order to provide a basis “for
granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order,” a reviewing court must find that “the denial of [] relief would be
inconsistent with substantial justice.”””
Despite this apparent discrepancy, the Kentucky Supreme Court has repeated the standard
announced in Chapman. For example, in Talbott v. Commonwealth the Court reviewed whether
a complicity-to-murder conviction should be disturbed due to the improper admission of
appellant’s inculpatory statement.”!° After noting that “[tJhe test is ... whether the error was
harmless beyond a reasonable doubt,” the Court held that a separate inculpatory statement by the
appellant sufficed to support the conviction and, therefore, that “the error was harmless beyond a
reasonable doubt.”2!!
As the Kentucky Supreme Court has recognized Chapman’s harmless-error standard for
determining whether a conviction or sentence will remain settled despite a recognized
constitutional error, the Assessment Team concludes that the Commonwealth of Kentucky is in
compliance with Recommendation #11. Nevertheless, as post-conviction courts naturally will
look to the language found in Kentucky’s Rules of Criminal Procedure to determine whether a
constitutional error should be deemed harmless, the Kentucky Assessment Team recommends
that the Talbott language be incorporated into those rules.
J. Recommendation #12
During the course of a moratorium, a “blue ribbon” commission should undertake a
review of all cases in which individuals have been either wrongfully convicted or
wrongfully sentenced to death and should recommend ways to prevent such
wrongful results in the future.
207 Chapman, 386 U.S. at 24.
208 Id.
209 Ky. R. CRIM. P. 9.24 (emphasis added).
210 Talbott, 968 S.W.2d at 76.
21 Td. at 83-84.
271
Because Recommendation #12 is predicated on the implementation of a moratorium, it is not
applicable to the Commonwealth of Kentucky at this time.
272
CHAPTER NINE
CLEMENCY
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
Under a state’s constitution or clemency statute, the governor or entity established to handle
clemency matters is empowered to pardon an individual’s criminal offense or commute an
individual’s death sentence. In death penalty cases, the clemency process traditionally was
intended to function as a final safeguard to evaluate (1) the faimess and judiciousness of the
penalty in the context of the circumstances of the crime and the individual, and (2) whether a
person should be put to death. The clemency process can only fulfill this critical function when
the exercise of the clemency power is governed by fundamental principles of justice, fairness,
and mercy.
The clemency process should provide a safeguard for claims that have not been considered on
the merits, including claims of innocence and claims of constitutional deficiencies. Clemency
also can be a way to review important sentencing issues that were barred in state and federal
courts. Because clemency is the final avenue of review available to a death row inmate, the
state’s use of its clemency power is an important measure of the faimess of the state’s justice
system as a whole.
While elements of the clemency process, including criteria for filing and considering petitions
and inmates’ access to counsel, vary significantly among states, some minimal procedural
safeguards are constitutionally required. “Judicial intervention might, for example, be warranted
in the face of a scheme whereby a state official flipped a coin to determine whether to grant
clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency
process.”
From 1976, when the U.S. Supreme Court authorized jurisdictions to reinstate capital
punishment, through June 2011, clemency has been granted on humanitarian grounds 269 times
in twenty-one of the thirty-eight death penalty states and the federal government.” One hundred
sixty-seven of these were granted by former Illinois Governor George Ryan in 2003 out of
concem that the justice system in Illinois could not ensure that an innocent person would not be
executed.’ Another fifteen of these clemency grants occurred in Illinois when Governor Pat
Quinn commuted the death sentences of the remaining men on death row to life without parole
upon that state’s repeal of its death penalty statute in 2011.4
Due to an expansion of restrictions on judicial review of death row inmates’ claims, the need for
a meaningful clemency power is more important than ever. As a result of these restrictions,
1 Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998) (O’Connor, J., concurring).
2 See Clemency, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/clemency (last visited Nov. 1,,
2011). This figure includes states that authorized capital punishment at any time during this period.
Id.
* 725 Int. Comp. Star. 5/119-1 (2011) (amending the Illinois Code of Criminal Procedure to repeal the death
penalty); Christopher Wills, Illinois Gov. Pat Quinn abolishes death penalty, clears death row, WASH. PosT, Mar. 9,
2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/09/A R2011030900319.html.
273
clemency can be a state’s final opportunity to address miscarriages of justice, even in cases
involving actual innocence. A clemency decision-maker may be the only person or body that has
the opportunity to evaluate all of the factors bearing on the appropriateness of the conviction
and/or death sentence without regard to constraints that may limit a court’s or jury’s decision-
making. Yet as the capital punishment process currently functions, meaningful review
frequently is not obtained and, in many jurisdictions, clemency too often has not proven to be the
critical final check against injustice in the criminal justice system.
274
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
A. Clemency Decision-Makers
1. Governor of Kentucky
Section 77 of the Kentucky Constitution provides the Govemor with the sole power to grant or
deny clemency, including pardons, reprieves, and commutations, except in cases of
impeachment. > Section 77 grants the Kentucky Governor “full discretion in relation to clemency
issues,” which means s/he “may investigate any and all matters related to a clemency petition
and determine the scope of that investigation.”” The Kentucky Governor, at his/her discretion,
also may ask the Kentucky Parole Board (Board) to investigate and present to the Governor a
report and non-binding recommendation concerning all requests for pardons, reprieves, and
commutations, although it does not appear that any Kentucky Governor has so authorized the
Board since Kentucky reenacted the death penalty in 1976.”
In death penalty cases, the Governor may commute an inmate’s death sentence to life “without
privilege of parole,” or any other lesser sentence.® Since 1920, ten Kentucky Govemors have
commuted thirty-seven sentences of death; however, only two of these have occurred since the
death penalty was reinstated in Kentucky in 1976.° Kentucky Governors have granted clemency
to Kevin Stanford in 2003 and Jeffrey Leonard in 2007.!°
2. Kentucky Parole Board
5 Ky. Const. § 77 (2011) (first adopted in 1891). See also Ky. Const. § 145 (2011) (restoring civil rights
through executive pardon); Ky. Const. § 150 (2011) (restoring eligibility for office through executive pardon). In
the thirty-four states with the death penalty, Kentucky is one of twelve in which the sole authority to grant clemency
lies with the Governor. Clemency, DEATH PENALTY INFO. CTR., http://deathpenaltyinfo.org/clemency (last visited
Nov. 2, 2011).
5 See ABA Clemency Questionnaire Response from M. Holliday Hopkins, General Counsel, Office of Ky.
Governor Steven L. Beshear, July 7, 2011 (on file with author) [hereinafter Ky. Response to Clemency
Questionnaire], infra A ppendix.
7 Ky. Rev. STAT. ANN. § 439.450 (West 2011); Ed Monahan, The Power, Practice and Process of Commutation
of Persons Sentenced to Death, Ky. DEp’T oF PuB. ADVOCACY 3 (Oct. 2008), available at http://www.dpa.ky.gov
(search for “power, practice” then follow top result).
8 Ky. Const. 77; Anderson v. Commonwealth, 107 S.W.3d 193, 196 (Ky. 2003) (“Section 77 of the Kentucky
Constitution vests the Govemor with the power to “grant. . . pardons.” . . . A pardon can be full (absolute),
conditional or partial. A full pardon restores an ‘offender's civil rights without qualification’ . . . [and] a partial
pardon ‘exonerates the offender from some but not all of the punishment or legal consequences of a crime.’ . . . In
Kentucky, the constitutional power to pardon encompasses the power to issue conditional pardons. This is also true
of the power to issue partial pardons.”) (internal citations omitted). See also Ky. REV. STAT. ANN. § 532.030 (West
2011) (listing the possible penalties upon the conviction of a capital crime).
5 Clemency, DEATH PENALTY INFO. CTR., http://deathpenaltyinfo.org/clemency (last visited Nov. 2, 2011);
Monahan, supra note 7, at 5, 9 (noting the number of pre-1976 grants of clemency).
19 Ky. Exec. Order No. 2003-1243 (Dec. 8, 2003) (Commutation of Death Sentence); Henry Weinstein, Death
Sentence Commuted for Ky. Man Who Killed at 17, L.A. Times, June 22, 2003, at 36; Ky. Exec. Order No. 2007-
1175 (Dec. 10, 2007) (Commutation of Death Sentence).
275
The Kentucky Parole Board, an independent, autonomous agency housed within the Kentucky
Justice and Public Safety Cabinet, consists of nine full-time members appointed by the Governor
and confirmed by the State Senate.’ Each Board member must have “at least five years of
actual experience in the field of penology, correction work, law enforcement, sociology, law,
education, social work, medicine, ora combination thereof, or have served at least five years
previously on the Parole Board.”!? The Govemor selects appointees from a list of three
candidates provided to him by the Parole Board Nominating Committee, an entity within the
Kentucky Corrections Commission. * No more than six Board members are permitted to be
from the same political party.'* Once appointed, the nine Board members are eligible for
reappointment for an unlimited number of terms and serve four-year staggered terms until their
successors are appointed and confirmed by the Senate.!° One Board member will be appointed
by the Governor to serve as Chair until his/her term expires or s/he is removed by Govemor.’®
The Governor may remove members of the Board for “disability, inefficiency, neglect of duty, or
malfeasance in office.”
Only upon the request of the Govemor will the full Kentucky Parole Board investigate and report
to the Govemor on a death row inmate’s clemency application.'® The Board’s main function is
to conduct reviews and/or hearings to determine the parole eligibility of the Commonwealth's
convicted offenders.!° The Board is required to keep records of its acts, electronic records of its
meetings, written records of the individual members’ votes, the reasons for denying parole to
inmates, and is required to submit to the Governor an annual report with statistical data at the end
of each fiscal year.” These records must be available to the public.?’ The Board is supported by
the Office of the Parole Board, which is responsible for the Board's daily administration. 2?
B. Applying for and Obtaining Clemency
To apply for clemency, an inmate or his/her attomey must submit to the Office of the Governor
an official Application for Gubernatorial Pardon and/or Commutation of Sentence.” The
Kentucky Supreme Court has stated that it “is patently clear that there are two basic
constitutionally mandated requirements under [Kentucky Constitution] Section 77: (1) that the
Ky. Rev. Stat. ANN. § 439.320(1) (West 2011); Kentucky Parole Board, KENTUCKY.Gov,
http://justice.ky .gov/parolehd (last visited June 28, 2011). As of July 1, 2011, four member positions were unfilled.
Telephone Interview by Paula Shapiro with Jennifer Markey, Administrative Specialist III, Office of the Ky. Parole
Bd., June 8, 2011 (on file with author).
2 Ky. REV. STAT. ANN. § 439.320(1) (West 2011).
Id; Ky. PAROLE BD., ANNUAL Report: FY 2006-2007 (2007), available at
hip: /{justice.ky. gov/NR/rdonlyres/0828EB8C- 0E74-4F51-9F40-6B3BB7C1A 4A 4/0/paroleboard0607FY report.pdf.
Ky. REV. STaT. ANN. § 439.320(1) (West 2011).
15 Ky. REV. STAT. ANN. § 439.320(3) (West 2011); Interview with Jennifer Markey, supra note 11.
16 Ky. REV. STAT. ANN. § 439.320(2) (West 2011).
"Ky. Rev. STAT. ANN. § 439.320(5) (West 2011).
18 Ky, REV. STAT. ANN. § 439.450 (West 2011); Ky. Response to Clemency Questionnaire, supra note 6, at 2.
19 Ky, REV. STAT. ANN. §§ 439.330(1), 439.340(2) (West 2011); see also 401 Ky. ADMIN. REG. 1:030 (2010)
(determining parole eligibility).
a Ky. REV. STAT. ANN. § 439.330(4) (West 2011).
Id.
22 Ky. REV. STAT. ANN. § 439.320(8) (West 2011).
Telephone Interview by Paula Shapiro with Selina Bowman, Secretary, General Counsel Office, Ky. Office of
the Gov., June 13, 2011 (on file with author).
276
movant file an application for clemency with the Govemor; and (2) that the Govemor file with
each application a statement of reasons for his decision.””*
Kentucky citizens or advocacy groups have also submitted clemency requests to the Governor on
behalf of a death row inmate, although the Govemor is not required to consider such petitions.”
At least one previous Governor “declined to entertain requests for clemency from anyone but”
the death row inmate.*° However, a death row inmate’s attorney may file a petition for a stay of
execution on the grounds that the inmate is insane.””
1. Applications for Clemency
There is no formal application that is specific to commutation of a death sentence in Kentucky.
In practice, all applications for clemency, including pardons, reprieves, and commutations, are
filed using the same official form, a four-page “Application for Gubematorial Pardon and/or
Commutation of Sentence,” available upon request from the Office of the Govemor.® The
application requires the petitioner to provide
(1) general information including social security number, marital status and
number of children;
(2) criminal information, including a complete list of past and pending felony
and misdemeanor charges and any parole or probation violations;
(3) educational information, including the highest level of education completed;
(4) military information, including branch of service and type of discharge;
(5) employment information, including current and most recent employers; and
(6) contact information for non-family references and emergency contacts.
The petitioner must include with the application, if applicable: (1) copies of previous clemency
applications, (2) a letter in the petitioner's own words describing the reason(s) s/he is seeking
relief and the extenuating circumstances supporting the basis for the request, and (3) a minimum
of three letters of recommendation in support of clemency, which may be “submitted from all
sources, including but not limited to the following: neighbors, employers, co-workers, pastors,
church members, elected officials, judges, prosecutors, family members, etc.”*° According to
the General Counsel of the Office of the Kentucky Governor, “[in] addition, written statements,
24 McQueen v. Patton, 948 S.W.2d 418, 419 (Ky. 1997); Baze v. Thompson, 302 S.W.3d 57, 60 (Ky. 2010) (citing
McQueen). See also Ky. Response to Clemency Questionnaire, supra note 6, at 2 (citing Baze, 302 S.W.3d at 60).
a5, Ky. Response to Clemency Questionnaire, supra note 6, at 2; Interview with Selina Bowman, supra note 23
(stating that the Governor “only considers official petitions for clemency”); see, e.g., Advocates Beg for Harper,
CINCINNATI-Ky. Post (Ohio), May 21, 1999, at K1 (noting Kentucky's four Roman Catholic bishops, Amnesty
Intemational and other groups requested clemency on behalf of Eddie Lee Harper who had voluntarily waived
remaining appeals, effectively volunteering for execution).
26 Lance Williams, Execution Shakes Death-Penalty Foes at Prison, Elsewhere Protestors Fear Desensitization,
LEXINGTON HERALD-LEADER, May 26, 1999, at A12.
2 Ky. REV. STAT. ANN. § 431.2135(1) (West 2011).
28 Interview with Selina Bowman, supra note 23; McQueen v. Patton, 948 S.W.2d 418, 419 (Ky. 1997) (stating
that a clemency “application is the triggering event for action by the Governor’).
°° OFFICE OF THE Ky. GOVERNOR, APPLICATION FOR GUBERNATORIAL PARDON AND/OR COMMUTATION OF
SENTENCE (on file with author).
Id.
277
documents and other supporting materials concerning the parties’ respective positions may be
submitted to the Govemor for review and consideration.”*! The inmate must also sign a release
authorizing the Office of the Governor to “make all necessary investigations of [the inmate’s]
work, character, personal history, and financial, credit, and other records,”
2. Access to Prison Officials for Clemency Applications
Prior to filing a clemency petition, defense counsel for a death row inmate may request access
from the Kentucky Department of Corrections to interview prison officials and other death row
inmates to obtain information relevant to an inmate's clemency application.’ However, access
to prison personnel and other death row inmates may be limited in the Commonwealth." For
example, a death row inmate may be permitted “to seek information” for a clemency petition but
s/he does not have “a substantive right [] to acquire that information over all possible
obstacles.”* For more information on death-sentenced clemency petitioners’ access to prison
officials, please see Recommendations #5 and #7 in the Analysis Section.*©
3. Deadlines for Filing Clemency Petitions
Kentucky does not impose specific deadlines for filing clemency petitions. While clemency
petitions usually are filed after judicial remedies have been exhausted and an execution date has
been set by the Kentucky Supreme Court,” petitions also have been filed in anticipation of
issuance of a death warrant.*® Kentucky also permits issuance of a death warrant after the direct
appeal has been finalized, even if the inmate has other viable avenues for appeal available in the
state and federal court systems.*’ Kentucky death row inmates have filed successive petitions
for clemency.”
31
2 Ky. Response to Clemency Questionnaire, supra note 6, at 2.
OFFICE OF THE Ky. GOVERNOR, APPLICATION FOR GUBERNATORIAL PARDON AND/OR COMMUTATION OF
SENTENCE (on file with author).
3 See generally Brief for Petitioner at 1, Baze v. Thompson, No. 2009-SC-00018, 2009 WL 5970844 (Ky. July
15, 2009); Baze v. Parker, 632 F.3d 338, 340 (6th Cir. 2011) (“Baze believes that certain individuals at the prison
where he is confined possess information that could strengthen his bid for clemency. Accordingly, [] he requested
permission for his attommeys to speak with prison guards, the death row unit administrator, and other death row
inmates.”).
34 Baze v. Thompson, 302 S.W.3d 57, 58-60 (Ky. 2010) (noting the Kentucky Department of Correction’s (DOC)
denial of access by clemency counsel to DOC personnel and denying the inmate relief); Baze v. Parker, 632 F.3d
338 (6th Cir. 2011), affirming Baze v. Parker 711 F.Supp.2d 774 (E.D. Ky. 2010) (denying relief).
35 Baze, 302 S.W.3d at 58; see also Baze v. Parker, 632 F.3d 338, 343, 346 (6th Cir. 2011).
%6 Infra notes 98-103, 112-129 and accompanying text.
37 At the conclusion of an unsuccessful challenge to the prisoner's conviction and sentence, the Kentucky
Supreme Court will issue a mandate setting the execution date as the fifth Friday following the date of the mandate.
Ky. REV. STAT. ANN. § 431.218 (West 2010).
38 Telephone Interview by Paula Shapiro with Tim Arnold, Director, Post Trial Div. Dep't of Pub. Advocacy, Feb.
25, 2011 (on file with author). In practice, Kentucky’s Attomey General will request that the Govemor issue a
warrant for execution. R.G. Dunlop, Beshear asked to halt executions for study of Kentucky's death-penalty system,
CourtER-J. (Louisville, Ky.), Nov. 24, 2009.
See Bowling v. Commonwealth, 926 S.W.2d 667, 668-69 (Ky. 1996); see also Recommendation #7, infra notes
120-129 and accompanying text.
“0 See, e.g., Baze v. Parker, 632 F.3d 338, 340 n.1 (6th Cir. 2011) (noting that “Baze is currently at work on his
second clemency application. Baze first sought clemency in 2007.”).
278
4. Legal Representation During Clemency
While Kentucky has not promulgated any rules, regulations, laws, or procedures that require
courts to appoint counsel to represent the Commonwealth's death row inmates petitioning for
clemency, KRS 31.110 entitles an indigent defendant or death row inmate to “be counseled and
defended at all stages of the matter... including revocation of probation and parole.”*!
Furthermore, in 2009, the United States Supreme Court clarified that federal law permits, but
does not require, “federally appointed counsel to represent their clients in state clemency
proceedings and entitles them to compensation for that representation.”“”
In practice, the Department of Public Advocacy and the Louisville Metro Public Defender’s
Office provide representation to Kentucky death row inmates through clemency and execution,
which includes drafting and researching clemency petitions and appeals.** For more information
on the representation of capital defendants and death row inmates during clemency proceedings,
please see the Analysis Section, Recommendations #6 and 7, and Chapter Six on Defense
Services.
5. Clemency and the Kentucky Parole Board
The Kentucky Governor has sole discretion to authorize the Kentucky Parole Board to
investigate and recommend clemency in a death penalty case.*° The Commonwealth has not
adopted any laws, procedures, or guidelines governing the process by which the Board would
investigate and recommend action on a death row inmate's clemency petition. While the
Commonwealth has adopted specific procedures governing the decision-making required of the
Board when investigating and determining parole recommendations, “® these regulations do not
apply to death row inmates who are ineligible for parole.””
6. Clemency Decisions
The Govemor alone has the power to grant or deny clemency.“® S/he “may consider any factors
[s/]he determines to be relevant to his/her decision.”*® Section 77 of the Kentucky Constitution
requires the Govemor to “file with each [clemency] application[,] a statement of the reasons for
his[/her] decision thereon, which application and statement shall always be open to public
“Ky. Rev. Stat. ANN. § 31.110(2)(a) (West 2011).
® 18 U.S.C. § 3599(e); Harbison v. Bell, 129 S. Ct. 1481, 1491 (2009) (authorizing federally-appointed counsel,
pursuant to 18 USC 3599, to represent death row inmates in state clemency proceedings).
‘4S Ky. DEp’T OF Pus. ADVOCACY, POLICIES AND PROCEDURES §§ 18.01(E)(5)-(7), 18.09 (revised Jan. 1, 2008)
[hereinafter DPA PoLicies]; Interview by Sarah Turberville and Paula Shapiro with Daniel T. Goyette, Chief Public
Defender, Louisville Metro Public Defender’s Office, Oct. 12, 2010 (on file with author).
‘44 See Recommendations #6-7, infra notes 104-129 and accompanying text.
*® Ky. REV. STAT. ANN. § 439.450 (West 2011).
“© See Ky. REV. STAT. ANN. §§ 439.340, 439.335, 439.3401 (West 2011).
“See, e.g., KY. REV. STAT. ANN. §§ 439.340, 439.3401 (West 2011).
“6 Ky. Const. § 77; Ky. Response to Clemency Questionnaire, supra note 6 (noting the Govemor’s discretion
throughout the seven pages of its response to the Clemency Questionnaire).
Ky. Response to Clemency Questionnaire, supra note 6, at 4.
279
50
inspection. A Govemor’s grant of clemency, formally issued in an Executive Order, is
published in Kentucky’s Executive Journal, which is maintained by the Kentucky Secretary of
State.°' Denials of clemency are also filed with the Secretary of State and appear to be in the
form of a letter, written to clemency counsel representing the death row inmate.” All clemency
applications, including those that are not granted, are retained by the Office of the Governor until
the end of each Govemor’s administration, when all such applications are transferred to the
Kentucky Department for Libraries and Archives.
There have been four recent challenges by death row inmates to the Commonwealth’s clemency
process, all of which have been unsuccessful.°* The Kentucky Supreme Court has also held that
in order for a death row inmate to challenge a governor's refusal to grant clemency, the inmate
must have previously filed a clemency application with the Governor.”
50 Ky. Const. § 77.
SL Ky. Response to Clemency Questionnaire, supra note 6, at 5; Overview, Ky. SEC’y OF STATE,
http://www.sos.ky.gov/executive/joumal (last visited Feb. 24, 2011).
a Ky. Response to Clemency Questionnaire, supra note 6, at 5; Letter from Paul E. Patton, Governor,
Commonwealth of Kentucky, to Hon. Stefanie McArdle, Counsel to Harold McQueen Jr. (June 30, 1997) (on file
with author).
58 See PUBLIC RECORDS Dwv., Ky. DEP’T FOR LIBRARIES & ARCHIVES, RECORDS RETENTION SCHEDULE:
GOVERNOR'S OFFICE 1, 5 (Apr. 411, 2011), available at
http://kdla.ky.gov/records/recretentionschedules/D ocuments/State% 20Records% 20Schedules/kygovernor.PDF.
54 Id. (denial of relief); McQueen v. Patton, 948 S.W.2d 121 (Ky. 1997) (denial of relief); Baze v. Thompson, 302
S.W.3d 57, 60 (Ky. 2010) (denial of relief); In re Sapp,118 F.3d 460, 466 (6th Cir. 1997) (denial of relief); Baze v.
Parker, 711 F.Supp.2d 774, 781 (E.D. Ky. 2010) (denial of relief), aff'd, Baze v. Parker, 632 F.3d 338 (6th Cir.
2011) (denial of relief).
55 McQueen v. Patton, 948 S.W.2d 418 (Ky. 1997). In McQueen, the inmate had filed for a declaratory injunction
due to the Govemor’s published statement upon the signing of the inmate's death warrant that the Governor would
not “through the power of clemency, substitute my judgment for that of the General Assembly, the courts, and the
juries of the Commonwealth.” McQueen, 948 S.W.2d at 419. The Kentucky Supreme Court found that no
controversy existed since McQueen had not yet filed a petition for clemency with the Governor. Id.
280
II, ANALYSIS
A. Recommendation #1
The clemency decision-making process should not assume that the courts have
reached the merits on all issues bearing on the death sentence in a given case;
decisions should be based upon an independent consideration of facts and
circumstances.
The Commonwealth of Kentucky does not require the Governor, who possesses the sole
constitutional and statutory power to grant or deny clemency, to conduct any specific procedural
review or to consider independently any specific facts, evidence, or circumstances when making
his/her clemency decision. Instead, “the decision to grant clemency is left to the unfettered
discretion of the Governor.”®” According to the U.S. Court of Appeals for the Sixth Circuit,
section 77 of Kentucky’s Constitution “in no way establishes specific procedures to be followed
and imposes no standards, criteria, or factors that the Governor need consider in exercising his
power.” The Kentucky Supreme Court has stated “[t]here exist only two constitutionally
mandated requirements under section 77: that the movant file an application for clemency with
the Governor; and that the Governor file with each application a statement of the reasons for his
decision.”
In addition, the Govemor may request the Kentucky Parole Board (Board) to investigate and
make a non-binding recommendation on a death row inmate's clemency petition.°° However,
there are no laws, rules, procedures, standards, or guidelines governing the scope or nature of the
Board’s investigation into a death row inmate’s clemency application. Furthermore, the
Kentucky Assessment Team has no knowledge that the Board has ever been authorized to
conduct an investigation or make a recommendation in a death penalty case since the
reinstatement of the death penalty in Kentucky.”
Kentucky Governors have granted commutations to two death row inmates since the
Commonwealth reinstated capital punishment in 1976. In each of these cases, the Kentucky
Governor has explained his decision by including a statement of reasons within the executive
56 Ky. Response to Clemency Questionnaire, supra note 5, at 4; Ky. Const. § 77; Baze v. Thompson, 302 S.W.3d
57, 60 (Ky. 2010).
57 Baze v. Thompson, 302 S.W.3d 57, 60 (Ky. 2010).
58 In re Sapp, 118 F.3d 460, 465 (6th Cir. 1997).
59 Baze, 302 S.W.3d at 60.
50 Ky. REV. STAT. ANN. § 439.450 (West 2011). The Governor is not required to involve the Kentucky Parole
Board, and “most of the past commutations of death sentences hy Kentucky Govemors apparently have not used it.”
Monahan, supra note 7, at 3.
51 Telephone Interview by Paula Shapiro with Verman Winbum, Chair, Ky. Parole Bd., Apr. 4, 2011 (on file with
author).
ea Ky. Exec. Order No. 2003-1243 (Dec. 8, 2003) (Commutation of Death Sentence); Ky. Exec. Order No. 2007-
1175 (Dec. 10, 2007) (Commutation of Death Sentence). Prior to the 1972 U.S. Supreme Court decision halting
executions nationwide, Kentucky Govemors granted clemency to six death row inmates. Monahan, supra note 7, at
5.
281
order granting clemency.” In the 2003 order granting clemency to Kevin Stanford, Governor
Paul Patton cited Stanford’s age at the time of the offense (seventeen) as the reason for
commuting the death sentence of this inmate to life without parole. In the application for
clemency, counsel for the death row inmate noted that “[d]ue to the procedural history of
Kevin's case and its current posture, it is likely that [the inmate] will not get relief from the
courts.”® Although the U.S. Supreme Court had upheld Stanford’s death sentence despite his
age, Governor Patton commuted the death sentence on this very ground years later.® In 2007,
Governor Emie Fletcher granted clemency to Jeffrey Leonard, citing the ineffective legal
representation provided to Leonard by his trial counsel, even though state and federal courts
denied relief in numerous appeals alleging this same deficiency.®” Based on these two cases, it
appears recent Kentucky Governors may reconsider issues, such as age or inadequate defense,
which were rejected by the courts during legal proceedings.
However, it remains unclear whether clemency decisions are based on an independent evaluation
of the facts. For example, in the letter to an inmate’s clemency counsel denying the inmate’s
request, Governor Patton stated
I am in receipt of the clemency application of Harold McQueen. The purpose of
this letter is to advise you of my decision with regard to this application for
clemency which is to not exercise the authority granted me pursuant to Section 77
of the Kentucky Constitution to “commute sentences, grant reprieves and
pardons” because in my opinion, clemency is not warranted in this case. My
reason for this decision is that in this case I do not believe it is proper, through the
power of clemency, to substitute my judgment for that of the General Assembly,
the Courts and the juries of this Commonwealth.
The substance of this denial makes it difficult to determine whether or not Kentucky Governors
assume the courts have reached the merits on all issues bearing on a death sentence and base
53 See, e.g., Ky. Exec. Order No. 2007-1175 (Dec. 10, 2007) (Commutation of Death Sentence); Ky. Exec. Order
No. 2003-1243 (Dec. 8, 2003). Both Kentucky executive orders are included in the A ppendix.
51 Ky. Exec. Order No. 2003-1243 (Dec. 8, 2003) (Commutation of Death Sentence).
55 See Stanford A pplication for Pardon or Commutation of Sentence Presented to Kentucky Governor Brereton C.
Jones on Behalf of Kevin Nigel Stanford, prepared by Stefanie M. McArdle, Ky. Dep't of Pub. Advocacy, Nov. 16,
1995, at 3-4 (“Although many serious violations of his constitutional rights were made at trial, and his sentence is
disproportionate to the sentences received by his co-defendants, procedural and technical rules may prevent the
courts from reviewing the merits of Kevin's case. For these reasons, executive commutation is an appropriate
measure to save Kevin from an execution that would offend human decency, and result in a travesty of justice.”)
[hereinafter Stanford Clemency A pplication].
6° Stanford v. Kentucky, 492 U.S. 361 (1989) (permitting the execution offenders who were seventeen or sixteen
years old at the time of the offense), overruled by Roperv. Simmons, 543 U.S. 551 (2005). Governor Patton
jranted clemency to Stanford two years before the U.S. Supreme Court's decision in Roper.
Ky. Exec. Order No. 2007-1175 (Dec. 10, 2007) (Commutation of Death Sentence) (also listing the inmate’s
age at time of the crime (eighteen) and during trial (nineteen) as reasons for the commutation). See, e.g., Slaughter
v. Parker, 187 F.Supp.2d 755 (W.D. Ky. Sept. 27, 2011) (reversing penalty phase of capital trial due to ineffective
assistance of counsel), aff'd in part, rev'd in part Slaughter v. Parker, 450 F.3d 224 (6th Cir. 2006), rehearing en
banc denied by Slaughter v. Parker, 467 F.3d 511 (6th Cir. 2006). Please see Chapter 6 on Defense Services for a
further discussion of this case.
58 Letter from Paul E. Patton, Governor, Commonwealth of Kentucky, to Hon. Stefanie McArdle, Counsel to
Harold McQueen Jr. (June 30, 1997) (on file with author).
282
their decisions upon an independent consideration of facts and circumstances. Furthermore, a
press release issues in 1997 by Governor Patton indicated that gubernatorial clemency reviews
may be somewhat limited. The press release stated
it is my policy not to grant clemency in cases where the death penalty has been
recommended by the jury and imposed by a circuit court of our state. I will not,
through the power of clemency, substitute my judgment for that of the General
Assembly, the courts, and the juries of the Commonwealth.
In response to the public statement above, a death row inmate applying for clemency filed a
motion with the Kentucky Supreme Court arguing that the Governor's stated policy violated the
inmate’s clemency rights pursuant to section 77 of the Constitution.” The Court rejected the
inmate's petition, stating that it “will not presume, as does [the inmate], that the Govemor will
refuse to follow the constitutional mandate of § 77 in rendering its [clemency] decision.””! The
inmate was executed less than four days later.” Notably, Governor Patton later commuted the
death sentence of Jeffrey Leonard.”
By contrast, after third parties requested the Governor commute the death sentence of Marco
Allen Chapman, who did not submit a formal clemency application on his own behalf and was
subsequently executed in 2008, Governor Beshear issued a statement indicating that he believes
“capital punishment is appropriate in the case of particularly heinous crimes, absent some strong
extenuating circumstances. I have reviewed the facts of this case in detail and . . . I do not find
any such strong extenuating circumstances in this case.””’ He subsequently noted that “[s]igning
a death warrant is a solemn responsibility, and I have given this case serious and thoughtful
consideration. It is my duty to carry out the court-imposed punishment.” Similarly, when
asked whether the Governor specifically considers claims that were not necessarily previously
litigated in court on the merits when making clemency decisions, the Office of Govemor Beshear
replied that the Governor has the discretion to “consider any factors he determines to be relevant
to his decision.””° This response provides little insight into the range of facts or circumstances
that may be taken into consideration. However, we note that as of July 7, 2011, Govemor
s McQueen v. Patton, 948 S.W.2d 418, 418-19 (Ky. 1997).
Id.
7 McQueen v. Patton, 948 S.W.2d 418, 419 (Ky. 1997); Ky. CONsT. § 77.
Searchable Execution Database, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/executions (last
visited Feb. 18, 2011) (type McQueen and follow only result).
73 Ky. Exec. Order No. 2007-1175 (Dec. 10, 2007) (Commutation of Death Sentence).
™ Statement from Gov. Steve Beshear on Marco Allen Chapman, Gov. Beshear’s Commc’n Office (Nov. 17,
2008), — http://govemor.ky.gov/pressrelease.htm?postingguid={943dbba2-d20c-4ee8-aa7f-c4c0120cc05d} (“This
moming, I met with several church leaders and mental health representatives regarding the capital punishment case
of Marco Allen Chapman. I had previously met with the Catholic bishops, who have corresponded with me on this
issue. I greatly appreciate their perspective on the issue of clemency and their sincere opposition to capital
punishment. . . . Mr. Chapman has been found guilty of a vicious and almost indescribable crime. There is
absolutely no dispute about his guilt and Mr. Chapman has been found competent in four different proceedings.
Therefore, absent any further legal impediments which might arise, the state will proceed with carrying out the
sentence of the court.”).
75 Press Release, Gov. Beshear Signs Death Warrant, Gov. Beshear’s Comm'n Office, Aug. 25, 2010,
http://www.govemor.ky .gov/pressrelease.htm?PostingG UID ={56D E643C-652F-48CD-B12B-87BC3A 076E99}
(last visited Mar. 3, 2011).
7© Ky. Response to Clemency Questionnaire, supra note 6 at 4.
283
Beshear’s General Counsel stated that the Govemor “has received no clemency petitions in death
penalty cases nor has he rendered any decisions concerning death penalty clemency petitions
during his term as Governor.”””
Kentucky Governors have considered issues that were previously considered or rejected by the
courts in their decision to grant clemency. However, in cases where clemency is denied, we are
unsure of the considerations that the Kentucky Govemor has taken in to account. Therefore, the
Commonwealth of Kentucky is in at least partial compliance with Recommendation #1.
B. Recommendation #2
The clemency decision-making process should take into account all factors that
might lead the decision-maker to conclude that death is not the appropriate
punishment.
Recommendation #2 requires clemency decision-makers to consider “all factors” that might lead
the decision-maker to conclude that death is not the appropriate punishment. According to the
ABA, these factors include, but are not limited to, the following, which are not listed in any
particular order of priority:
(1) constitutional claims that were barred in court proceedings due to procedural
default, non-retroactivity, abuse of writ, statutes of limitations, or similar
doctrines, or whose merits the federal courts did not reach because they gave
deference to possibly erroneous, but not “unreasonable,” state court rulings;
(2) constitutional claims that were found to have merit but did not involve errors
that were deemed sufficiently prejudicial to warrant judicial relief;
(3) lingering doubts of guilt (as discussed in Recommendation #);
(4) facts that no fact-finder ever considered during judicial proceedings, where
such facts could have affected determinations of guilt or sentence or the
validity of constitutional claims;
(5) patterns of racial or geographic disparity in carrying out the death penalty in
the jurisdiction (as discussed in Recommendation #3);
(6) inmates’ mental retardation, mental illness, and/or mental competency (as
discussed in Recommendation #4); and
(7) inmates’ age at the time of the offense (as discussed in Recommendation
#4).
Given that the Kentucky Governor has “unfettered discretion” to “consider any factors [s/]he
determines to be relevant to his[/her] decision,” and “no clemency procedures are mandated,” Q
the factors taken under consideration during the clemency decision-making process are largely
unknown and may or may not include consideration of the factors described above. A review of
Kentucky’s recent history of clemency decision-making provides little insight into the practical
™ Ky. Response to Clemency Questionnaire, supra note 6, at 1. For a discussion of current death row clemency
applications, please see Recommendation #11, infra notes 139-150 and accompanying text.
78” ABA, DEATH WITHOUT JUSTICE: A GUIDE FOR EXAMINING THE ADMINISTRATION OF THE DEATH PENALTY IN
THE UNITED STATES (2002).
Ky. Response to Clemency Questionnaire, supra note 6, at 2, 4.
284
application of the Commonwealth's clemency process. Since Kentucky reinstated the death
penalty in 1976, there have been three executions and in only one of these cases— Harold
McQueen, Jr.— did the inmate seek clemency.” The other two executions involved inmates
Eddie Lee Harper, Jr. and Marco Allen Chapman who waived their remaining appeals and their
right to apply for clemency after their death warrants were signed, effectively “volunteering” for
execution." In addition, since 1976, two death row inmates sought and were granted
clemency.”
Clemency petitions, which are to be made available for public inspection in accordance with
section 77 of the Kentucky Constitution, may illuminate some of the issues presented to
Kentucky Governors for their consideration during clemency proceedings.** The Kentucky
Assessment Team has uncovered clemency petitions available through the Kentucky Department
for Libraries and Archives for Eddie Lee Harper, Kevin Stanford, Gregory Wilson, and Randy
Haight.“ Stanford’s application for clemency included twenty-four pages of signatures of
Kentucky residents supporting the commutation of his death sentence, based in part on the
inmate's age at the time of the offense and disparate treatment of racial minorities in capital
cases."° Harper’s application for clemency included letters in support from two prison kitchen
personnel with whom Harper worked; Harper’s attorney, who described how Harper “renounced
any legal interest in his parents’ estate, thereby allowing the estate to pass to his son, [] rather
than being held in escrow pending the resolution of Eddie’s case”; his cousin with whom Harper
grew up; a former high school classmate; and a Catholic nun.
Kentucky Govemors have publicly relied upon at least one of the seven factors listed above in a
decision to grant clemency.”’ While some Kentucky Governors have complied with their
80 Searchable Database for Executions, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/executions
(last visited Apr. 5, 2011); Michael Collins, Chair’s First Victim in 35 Years; McQueen Executed, CINCINNATI-KY.
Post (Ohio), July 1, 1997, at 1K.
81 See Harper v. Parker, 177 F.3d 567, 573 (6th Cir. 1999) (affirming District Court’s finding that inmate was
competent to waive his right to pursue further habeas corpus litigation); Williams, supra note 26, at A12 (noting that
Harper stated he would not seek clemency); Chapman v. Commonwealth, 265 S.W.3d 156, 180-81 (Ky. 2007)
(finding that the defendant had the mental capacity to plead guilty, waive mitigation, and “seek{] the death
penalty”); Brett Barrouquere, Kentucky death row inmate: ‘I'm ready and I'm sorry’, ASSOCIATED PRESS, May 9,
2008 (Chapman waived all appeals and was the third execution in the Commonwealth). Harper had previously
requested clemency from Governor Brereton Jones in 1995, but eventually decided to waive his remaining appeals
and request execution. Application for Pardon or Commutation of Sentence Presented to Governor Brereton C.
Jones on Behalf of Edward Harper, Jr., prepared by Linda K. West, Assistant Public Advocate, Ky. Dep't of Pub.
Advocacy, Nov. 10, 1995 (on file with author) [hereinafter Harper Clemency Application]; Harper v. Parker, 177
F.3d 567, 573 (6th Cir. 1999) (finding Harper competent to waive any remaining appeals).
82 Supra note 9 and accompanying text.
85 See PuBLIC RECORDS Dw., Ky. DEP’T FOR LIBRARIES & ARCHIVES, RECORDS RETENTION SCHEDULE:
GOVERNOR'S OFFICE 1, 5 (Apr. 411, 2011), available at
http://kdla.ky.gov/records/recretentionschedules/D ocuments/State% 20Records% 20Schedules/kygovernor.PDF.
51" The Kentucky Assessment Team was provided assistance from the Kentucky Department for Libraries and
Archives. Emails and Materials from Tim Tingle, Manager, Archival Services Branch, Dep’t for Libraries and
Archives, to Paula Shapiro, June 1, 2011, July 1, 2011, July 13, 2011, July 28, 2011, July 29, 2011 (on file with
author).
85 See Stanford Clemency Application, supra note 65.
8° Harper Clemency A pplication, supra note 81.
87 See Ky. Response to Clemency Questionnaire, supra note 6, at 1-7; Recommendation #1, supra notes 56-77
and accompanying text.
285
constitutional obligation to provide an extensive statement of reasons in grants of clemency, we
were unable to determine whether Governors review all issues that might lead him/her to
determine that a death sentence is not the appropriate punishment. Therefore, the
Commonwealth is in partial compliance with Recommendation #2.
The Kentucky Assessment Team recommends that the Governor adhere to the existing
constitutional requirement to publish a “statement of reasons” for each decision to grant or deny
clemency.
C. Recommendation #3
Clemency decision-makers should consider as factors in their deliberations any
patterns of racial or geographic disparity in carrying out the death penalty in the
jurisdiction, including the exclusion of racial minorities from the jury panels that
convicted and sentenced the death row inmate.
In the Commonwealth, exclusion of minority jurors and racial disparity in application of the
death penalty particularly due to the race of the victim is well-documented and discussed in
greater detail in Chapter Twelve of this Report. To date, no grant of clemency has been made
based upon patterns of racial or geographic disparity in carrying out the death penalty or the
exclusion of racial minorities from the jury panels that convicted or sentenced a death row
inmate. Although Kevin Stanford’s petition for clemency included the fact that he was an
African-American sentenced to death by an all-white jury, the statement of reasons provided by
the Governor at the grant of clemency cited only Stanford’s minority age at the time of the
offense.** Therefore, we are unable to determine if the Commonwealth is in compliance with
this Recommendation.
D. Recommendation #4
Clemency decision-makers should consider as factors in their deliberations the
inmate's mental retardation, mental illness, or mental competency, if applicable, the
inmate’s age at the time of the offense, and any evidence relating to a lingering
doubt about the inmate's guilt.
Considerations of Mental Retardation, Mental Illness, or Mental Competency
It appears that Kentucky Governors have considered mental illness with respect to clemency for
death row inmates. In 2008, before the execution of Marco Allen Chapman, who waived his
appeals and volunteered to be executed, Govemor Beshear met with mental health
representatives regarding Chapman’s upcoming execution.®’ Beshear noted afterwards that he
88 Stanford Clemency Application, supra note 65, at 3, 8 (describing the circumstances of the trial of Stanford,
who is an A frican-A merican sentenced to death by an all-white jury for killing a Caucasian woman).
89 Statement from Gov. Steve Beshear on Marco Allen Chapman, Nov. 17, 2008, available at
http://govemor.ky.gov/pressrelease.htm? postingguid={943dbba2-d20c-4ee8-aa7f-c4c0120cc05d}. Beshear released
a statement afterwards, indicating that they discussed clemency issues and he “greatly appreciate[s] their perspective
on the issue of clemency.” Id. We note that because Chapman volunteered for the death penalty and waived his
appeals, his attomeys did not file a clemency application on his behalf.
286
had “reviewed the facts of this case in detail and [had] given much prayerful thought to it,” and
had found no extenuating circumstances in the case that warrant a grant of clemency.”
In one letter included with Eddie Lee Harper's clemency petition, prior to Harper’s decision to
forgo clemency and seek execution, a former classmate of Harper stated that
In retrospect as an adult, I believe that Eddie was actually mentally disturbed. As
a licensed athletic trainer, I am now trained to recognize behavior like Eddie’s as
cause for concern about a young person’s mental and emotional health. It is my
belief that if Eddie had received early counseling, the crime of which he was
convicted would never have been committed.*!
During clemency, Harper's attorney also discussed the testimony presented in support of
Harper's insanity defense at trial in which two mental health clinicians has stated that Harper
suffered from “schizophrenic form disorder.” *
Prior to 1972, Kentucky Governors granted clemency based on consideration of an inmate’s
mental retardation, mental illness, or mental competency, to at least four death row inmates,
Considerations of Age at the Time of the Offense and Lingering Doubt of Guilt
Governor Patton considered and granted clemency to Kevin Stanford based on the inmate’s age
at the time of the offense, a commutation which occurred prior to the U.S. Supreme Court
prohibition on the execution of juveniles in 2005." In an additional clemency case, a Kentucky
Governor granted clemency to a death row inmate based, in large part, on the ineffective
assistance of the inmate’s trial counsel. However, the fact that the inmate was eighteen years
old at the time of the offense, and nineteen during the trial, was also considered.*°
Regarding lingering doubt of guilt, Stanford’s clemency application also included evidence that
the inmate was not the shooter during the commission of the crime.°” It is unclear whether the
Governor considered during clemency deliberations evidence relating to lingering doubt of
Stanford’s guilt.
It therefore appears that Kentucky is in at least partial compliance with this Recommendation.
° Id
5! Letter from Jerry May, Head Athletic Trainer, Athletic Department, Univ. of Louisville, in Harper Clemency
Application, supra note 81.
2°" Letter from Linda K. West, Assistant Public Advocate, Ky. Dep’t of Pub. Advocacy, Nov. 15, 1995, in Harper
Clemency Application, supra note 81.
83 Monahan, supra note 7, at 5.
In 2003, Governor Patton granted Kevin Stanford clemency based on Stanford's age at the time he committed
the crime, despite the U.S. Supreme Court’s ruling upholding Stanford’s death sentence. Ky. Exec. Order No. 2003-
1243 (Dec. 8, 2003) (Commutation of Death Sentence); Stanford v. Kentucky, 492 U.S. 361 (1989); Roper v.
Simmons, 543 U.S. 551 (2005).
x Ky. Exec. Order No. 2007-1175 (Dec. 10, 2007) (Commutation of Death Sentence).
Id.
"Stanford Clemency A pplication, supra note 65.
94
287
E. Recommendation #5
Clemency decision-makers should consider as factors in their deliberations an
inmate's possible rehabilitation or performance of significant positive acts while on
death row.
It appears that at least one Governor considered and rejected evidence of the rehabilitation of an
inmate’s while on death row.®* Eddie Lee Harper submitted an application for clemency in
1995, prior to his decision to forgo any further appeals, and in his letter to Governor Jones,
Harper wrote “[tJhere are no rehabilitation programs for Death Row inmates, so I have tried to
rehabilitate myself” and went on to describe his daily work in the prison and other activities.°°
Harper was executed on May 25, 1999.’ Kevin Stanford’s petition for clemency also included
information regarding his rehabilitation and positive acts on death row, such as earning a high
school equivalency diploma and bachelor’s degree from Murray State University while on death
row.'”! However, it is unclear whether this was considered by the Governor in his grant of
clemency to Stanford.
Furthermore, in order to effectively present evidence of rehabilitation to clemency decision-
makers, access to prison personnel is needed, since such persons are often the only individuals
with whom death row inmates regularly interact, aside from other inmates. The Kentucky
Department of Corrections (DOC), however, has refused to grant permission for DOC personnel
to speak with an inmate’s counsel preparing a clemency petition in at least one documented
instance.'°°
Because the factors that the Governor may take in to consideration are largely unknown, we have
insufficient information to determine if the Commonwealth is in compliance with
Recommendation #5. However, DOC’s refusal to permit access to prison personnel for a death
row inmate’s counsel petitioning for clemency raises a number of concerns about death row
inmates’ ability to effectively present a claim under this Recommendation. These are discussed
more fully in Recommendation #7, below.
D. Recommendation #6
In clemency proceedings, death row inmates should be represented by counsel and
such counsel should have qualifications consistent with the American Bar
Association Guidelines on the Appointment and Performance of Defense Counsel in
Death Penalty Cases (ABA Guidelines).
98 Harper Clemency Application, supra note 81. Kevin Stanford's clemency application to Gov. Jones also
described his rehabilitation on death row. See Stanford Clemency Application, supra note 65.
5° Letter from Edward Lee Harper, Jr., to Govemor Brereton Jones, Nov. 3, 1997, in Harper Clemency
Application, supra note 81. Harper also spoke of his conversion to Catholicism, drug history, familial and
relationship history. Id.
100 Searchable Execution Database, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/executions (last
visited July 25, 2011) (searching under Edward Lee Harper).
101 See Stanford Clemency A pplication, supra note 65.
12 See Factual Discussion, supra notes 33-35 and accompanying text.
103 Bazev. Thompson, 302 S.W.3d 57 (Ky. 2010); Baze v. Parker, 632 F.3d at 340.
288
The Commonwealth of Kentucky has not adopted any laws, rules, procedures, or guidelines
ensuring the appointment and delineating the qualifications of counsel to death row inmates
pursuing clemency.' However, federal law permits counsel appointed to represent indigent
death row inmates under a state-imposed death sentence in federal habeas corpus proceedings “to
represent their clients in state clemency proceedings and entitles them to compensation for that
representation.” 1°
While appointment of counsel in clemency proceedings is not guaranteed under state law, the
Department of Public Advocacy (DPA) and the Louisville Metro Public Defender’s Office
(Metro Defender) generally provide representation to Kentucky death row inmates during
clemency proceedings. DPA has adopted intemal policy relating to the qualifications of
capital counsel, the Post Trial Division Minimum Performance Standards (Standards), which
include requirements relating to the performance of DPA attorneys providing representation
during clemency.'”’ Specifically, the Standards require clemency counsel to “be familiar with
the procedures for and permissible substantive content of a request for clemency,” “interview the
client and any prior attomeys if possible, and conduct an investigation to discover information
relevant to the clemency procedure. . .” and “take appropriate steps to ensure that clemency is
sought in as timely and persuasive a manner as possible.”'” In addition, DPA policy requires its
post-conviction capital attorneys, in general, to possess qualifications consistent with the ABA
Guidelines.’
The Metro Defender has not formally adopted any written policies or guidelines governing the
requisite qualifications of staff attorneys or contract counsel undertaking representation of a
death row inmate during clemency proceedings. However, the Metro Defender requires its staff
attomeys providing capital representation to successfully complete extensive capital case training
and attempts to ensure that each attorney assigned to a capital case has capital litigation
experience. |!”
Private attomeys representing Kentucky death row inmates pursuing clemency are not required
to possess qualifications consistent with the ABA Guidelines.
Therefore, Kentucky is in partial compliance with Recommendation #6.'"
G. Recommendation #7
104 However, KRS 31.110 does contemplate representation being provided to indigent defendants and convicted
offenders throughout all stages of criminal proceedings, including to “be counseled and defended at all stages of the
matter . . . including revocation of probation and parole.” Ky. REV. STAT. ANN. § 31.110(2)(a) (West 2011).
105 18 U.S.C. § 3599(e); Harbison v. Bell, 129 S. Ct. 1481, 1491 (2009) (authorizing, but not requiring, federally-
appointed counsel to represent death row inmates in state clemency proceedings, pursuant to 18 U.S.C. 3599).
106 Interview with Tim Amold, supra note 38 (noting that DPA provides representation during clemency “so long
as there is no conflict of interest which would prohibit [DPA] ethically from acting.”); DPA POLICIES, supra note 43,
at§§ 18.01(E)(5)-(7), 18.09 (Execution Protocol); Interview with Daniel T. Goyette, supra note 43.
107 DPA POLICIES, supra note 43, at § 18.01
108 DPA POLICIES, supra note 43, at § 18.01(E)(5)-(7).
See DPA POLICIES, supra note 43, § 17.21(1).
Interview with Daniel T. Goyette, supra note 43.
For more information on the qualifications of counsel in Kentucky death penalty cases, see Chapter Six on
Defense Services.
289
Prior to clemency hearings, death row inmates’ counsel should be entitled to
compensation and access to investigative and expert resources. Counsel also should
be provided sufficient time both to develop the basis for any factors upon which
clemency might be granted that previously were not developed and to rebut any
evidence that the State may present in opposing clemency.
Clemency Counsel Compensation and Access to Resources
Generally, Kentucky death row inmates petitioning for clemency are represented by either DPA
or Metro Defender salaried employees who also have access to on-staff investigative resources
and mitigation specialists to prepare for clemency proceedings.''? Additionally, KRS 31.185
may provide indigent death row inmates funding to pay for “reasonably necessary” expert
witness fees or any other “direct expense, including the cost of a transcript . . . that is necessarily
incurred” during representation in state criminal proceedings.’ While the Metro Defender has
successfully obtained funds under KRS 31.185 for use during clemency proceedings, '"* we were
unable to determine whether DPA attomneys have been granted funding for this purpose.
Furthermore, 18 U.S.C. § 3599(f) may authorize an inmate’s federally-appointed attorneys to
obtain and to fund “reasonably necessary” investigative, expert, and other services.'!° However,
while DPA and Metro Defender attorneys regularly represent Kentucky inmates during
clemency, and the Metro Defender attorneys request section 3599 funds for this representation,
DPA clemency counsel have not consistently requested compensation under section 3599 from
the federal courts.!"° We are unaware whether independently-appointed counsel request
compensation under section 3599.
A death row inmate recently sued the Kentucky Department of Corrections (DOC) due to that
agency's repeated refusal to grant permission for DOC personnel to speak with the inmate’s
counsel, thereby frustrating the ability of clemency petitioners and their counsel to gather reliable
information that could result in a grant of clemency.'!’ In response, the Kentucky Supreme
Court held that due process requires only that the Commonwealth adhere to the clemency
112 Id. However, we note that “DPA cannot pay for experts directly, so inmates facing execution are generally not
likely to get additional expert assistance.” Interview with Tim A mold, supra note 38.
“Ky. REV. STAT. ANN. § 31.185(3) (West 2011).
‘4 Email from Daniel T. Goyette, supra note 42.
45 18 U.S.C. § 3599(f). For a complete discussion about resources for capital defense attomeys in Kentucky,
please see Chapter Six on Defense Services.
‘6 Interview with Tim Amold, supra note 38; see also Baze v. Parker, 711 F.Supp.2d 774, 778 (E.D. Ky. 2010)
(“Baze's counsel have not sought reimbursement from this Court for their representation of Baze since March 20,
2002. Indeed, no attomey with the KDPA [] has ever requested reimbursement from the federal government for their
efforts pursuing clemency for Baze.”). The court also noted that in previous state post-conviction proceedings, “[i]t
appears that Baze has received adequate representation without the aid of federal taxpayers.” Id
UT Baze v. Thompson, 302 S.W.3d 57 (Ky. 2010). See also Baze, 711 F.Supp.2d at 778; Baze v. Parker, 632 F.3d
338, 340 (6th Cir. 2011).
290
procedures explicitly set forth by state law.'!® It does not, according to the Court, encompass the
right to access information for inclusion in the clemency petition.'”°
This denial of access to prison officials and other inmates who are uniquely capable of providing
information on an inmate’s possible rehabilitation or positive performance while on death row
limits an inmate’s ability to develop and present relevant information for his/her clemency
petition.
Sufficiency of Time to Develop Clemency Applications
There is no specific procedure for clemency petitioners to follow i in the Commonwealth. While
it appears inmates are permitted to file successive petitions,'° the sufficiency of the time
available for the development of potential claims for inclusion in a clemency petition will depend
upon the executive branch’s practice on the filing of execution warrants.”
Typically, clemency petitions are filed after the Kentucky Governor has signed the death warrant
and an execution date has been set.'”?_ However, because there are no laws, rules, or procedures
governing the gubernatorial clemency process, and the Governor's “policy conceming the
signing of death warrants is strictly an executive function,”!” there have been various practices
among Kentucky Govemors’ administrations with respect to death warrants. While some
Governors’ administrations may wait to sign a death warrant until the inmate’s state and federal
appeals are exhausted, in contrast, other Kentucky Governors may issue a death warrant before
the statute of limitations placed on filing post-conviction appeals has lapsed. For example, while
Governor from 1995 to 2003, Governor Patton’s policy was to sign death warrants prior to
exhaustion of all available state and/or federal appeals, effectively requiring clemency counsel to
quickly assemble petitions for clemency.'** Kentucky Governors also may not grant or deny
every application for clemency that is received by the Governor's Office.”
This, in tum, results in a scenario in which counsel may file a clemency petition that is not ripe
for review and is never then reviewed by the Office of the Govemor. Conversely, an execution
8 Baze v. Thompson, 302 S.W.3d 57, 60 (Ky. 2010); Ky. CONsT. § 77.
119 Baze, 302 S.W.3d at 60. See also Baze v. Parker, 632 F.3d 338 (6th Cir. 2011) (federal courts do not have the
authority to require state prison personnel to comply with an inmate’s clemency petitions), affirming Baze v. Parker,
711 F.Supp.2d 774 (E.D. Ky. 2010).
120, Ky. Response to Clemency Questionnaire, supra note 6, at 4; see also Factual Discussion, supra notes 33-36
and accompanying text.
121 Interview with Tim Amold, supra note 38.
12 Ky, Const. § 81; Ky. REV. STAT. ANN. §§ 431.218, 431.240 (West 2011); Interview with Tim Amold, supra
note 38. In the most recent case, Kentucky Governor Beshear signed a death warrant on August 25, 2010 that set an
execution date for twenty-two days later, on September 16, 2010. Ky. Exec. Order No. 2010-722 (Aug. 25, 2010).
23 See Bowling v. Commonwealth, 926 S.W.2d 667, 668-69 (Ky. 1996).
124 Although at one time the Kentucky govemor regularly set execution dates for the Commonwealth's death row
inmates, the practice of requesting death warrants at the conclusion of each stage of post-conviction proceedings has
waned. Interview with Tim Amold, supra note 38. In practice, the Kentucky Attorney General will request that the
Governor issue a warrant for execution. R.G. Dunlop, Beshear asked to halt executions for study of Kentucky's
death-penalty system, COURIER-J. (Louisville, Ky.), Nov. 23, 2009.
5 Interview with Selina Bowman, supra note 23 (noting that applications received in cases where there is no
impending, imminent execution, the Govemor will keep the application on file until the end of his term, where it is
then transferred to Archives as a record).
291
date quickly may be set causing difficulty for the inmate to compile an effective petition for
clemency. Due to the varying policies of Kentucky Governors, DPA’s mitigation specialists
assigned to post-conviction cases now also compile relevant information to be included in future
clemency applications, 7° Nonetheless, according to DPA’s Post Trial Division Director, one of
the greatest obstacles in preparing an effective and persuasive capital clemency petition is the
lack of time to develop a thorough and convincing clemency petition.!””
Because the Kentucky Governor may sign a warrant for execution at any time following the
direct appeal, and “no clemency procedures are mandated,”’”° an opportunity to rebut evidence
the Commonwealth may offer in opposition to clemency also may be unavailable.
Based on this information, the Commonwealth only partially complies with Recommendation
#7.
Given that clemency is the final safeguard in cases where a life is at stake and that prison
officials are often the only individuals with whom a death row inmate may interact for many
years, the Kentucky Assessment Team is concerned about the documented lack of access to
prison personnel for counsel representing a death row inmate in clemency proceedings. The
Commonwealth's denial of access to such individuals unnecessarily frustrates a death row
inmate's ability to develop and present relevant information that could result in a grant of
clemency. No impediments, such as denial of access to prison officials, should be erected by the
Commonwealth to thwart inmates’ ability to develop and present a clemency petition.
We also note that in the context of parole eligibility hearings, the Parole Board has the authority
“to issue subpoenas requiring the attendance of such witnesses and the production of such
records, books, papers, and documents as it may deem necessary for investigation of the case of
any person before it.”"2° However, with respect to clemency for death row inmates, the
Kentucky Governors have not tasked the Board to review clemency petitions, thereby limiting a
death row inmate’s ability to develop and provide important, relevant information to the
Governor that could be obtained through subpoena. The availability of subpoena authority,
though use of the Parole Board, would better ensure that a well-investigated and researched
recommendation to the Governor in each capital clemency case occurs.
Finally, as clemency is the last avenue available to evaluate claims that may not have been
presented to or decided by the courts, as well as to evaluate the fairness and judiciousness of a
death sentence, the Commonwealth should adopt specific procedures to be followed for
application and consideration of a death row inmate’s petition for clemency. This may include,
for example, filing deadlines for a clemency application and/or a provision that an execution
warrant should not be issued until the Governor has had an opportunity to review and rule upon
an inmate's petition for clemency. Standardization of the clemency process would likely provide
clemency counsel adequate time to prepare and file an application for clemency, as well as
i Interview with Tim Amold, supra note 38.
Id.
Ky. Response to Clemency Questionnaire, supra note 6, at 2.
US Ky. REV. STAT. ANN. § 439.390 (West 2011).
292
alleviate some of the unpredictability and politicization of the clemency decision-making process
in Kentucky death penalty cases.
H. Recommendation #8
Clemency proceedings should be formally conducted in public and presided over by
the Governor or other officials involved in making the clemency determination.
Recommendation #9
If two or more individuals are responsible for clemency decisions or for making
recommendations to clemency decision-makers, their decisions or recommendations
should be made only after in-person meetings with clemency petitioners.
In Kentucky, the Governor is the ultimate decision-maker on clemency in death penalty cases.
However, Recommendation #9 is applicable when the Governor authorizes the Kentucky Parole
Board (Board) to investigate and make a recommendation on a clemency petition in a capital
case. In that event, the Kentucky Assessment Team recommends that the Parole Board hold an
in-person meeting with the clemency petitioner prior to making a recommendation to the
Governor in every capital clemency case.
The Commonwealth of Kentucky does not require the Govemor, as the sole clemency decision-
maker, to conduct formal clemency proceedings, including a public hearing or an in-person
meeting, with a death-sentenced inmate and his/her clemency counsel. According to the General
Counsel of the Office of the Kentucky Governor, other than the constitutionally-mandated
requirements under Section 77 of the Kentucky Constitution, “i{n] Kentucky no clemency
procedures are mandated. ... ‘No other constitutional provision or statute establishes specific
procedures to be followed or imposes standards or criteria for the clemency decision.’”!°°
However, the Governor has “unfettered discretion” over clemency matters, and in this discretion,
s/he may choose to hold a formal hearing.’ To our knowledge, we are aware of no Kentucky
Governor who has held a hearing in a death penalty case. In a limited number of instances in
cases with an impending execution, upon request, a death row inmate’s attorney may have the
opportunity meet with the Kentucky Govemor to discuss clemency.'*”
In the event the Governor authorizes the Board to investigate and make a recommendation on a
death row inmate’s application for clemency, the Board is not required to hold a hearing or an in-
person meeting with the inmate or his/her counsel.'* Notably, in non-capital cases conceming
180. Ky. Response to Clemency Questionnaire, supra note 6, at 2 (citing Baze v. Thompson, 302 S.W.3d 57, 60 (Ky.
2010)).
13 Baze, 302 S.W.3d at 60; In re Sapp, 118 F.3d 460, 465 (6th Cir. 1997) (stating that the Commonwealth “has not
made the clemency process an integral part of the state’s overall adjudicative process”) (internal citations omitted).
132 Interview with Tim Amold, supra note 38 (noting that Kentucky Governors and/or the governors’ legal counsel
met with counsel for Kevin Stanford and Jeffrey Leonard). Information about any instance where a Kentucky
Governor has “granted an interview, meeting and/or hearing” is “not known” by General Counsel of the Office of
the Kentucky Governor. Ky. Response to Clemency Questionnaire, supra note 6, at 3.
83 Ky, Rev. STAT. ANN. § 439.450 (West 2011) (“On request of the Governor the board shall investigate and
report to him with respect to any case of pardon, commutation of sentence, reprieve or remission of fine or
293
parole eligibility, the Board conducts an in-person meeting with the inmate, which is generally
open to the public.4 On average, the Board conducts approximately 16,000 statutorily-
mandated parole hearings annually.'° The Board has never been authorized to investigate and
make a recommendation in a capital clemency case.’“° We are aware that at least one death row
inmate requested and was denied the opportunity for a hearing before the Kentucky Parole Board
on his clemency application, the denial of which was upheld by the Kentucky Supreme Court
and the U.S. Court of Appeals for the Sixth Circuit. 9”
Because the Commonwealth is not required to provide each death row inmate the opportunity for
an in-person meeting or a formal public hearing with clemency decision-makers, the
Commonwealth is not in compliance with Recommendations #8 or #9.
I. Recommendation #10
Clemency decision-makers should be fully educated, and should encourage
education of the public, concerning the broad-based nature of clemency powers and
the limitations on the judicial system's ability to grant relief under circumstances
that might warrant grants of clemency.
We were unable to determine whether each Kentucky Governor has been fully educated on the
broad-based nature of his/her clemency powers. We also are unaware of any attempts by
clemency decision-makers in the Commonwealth to educate the public on the broad-based nature
of executive clemency or the limitations on the judicial system's ability to grant relief under
circumstances that might warrant a grant of clemency.
The Kentucky Assessment Team notes that, in the context of parole eligibility, Kentucky Parole
Board (Board) members must have a number of years of experience, receive in-house training
and annual ongoing training on current practices in the field, participate in the annual Board
forfeiture.”). The Commonwealth has adopted specific procedures for conducting Kentucky Parole Board
determinations, including requiring a public hearing for most parole eligibility cases. See, e.g., Ky. REV. STAT.
ANN. § 439.340(8) (West 2011) (“Any hearing provided for in subsections (5), (6), and (7) of this section shall be
open to the public unless the persons having a right to appear before the board as specified in those subsections
request closure of hearing for reasons of personal safety, in which event the hearing shall be closed. The time, date,
and location of closed hearings shall not be disclosed to the public.”).
1S The Parole Board typically sits in panels of two, although KRS 439.320(4) authorizes panels of two, three, or
four to decide parole or final parole revocation hearings. Ky. REV. STAT. ANN. § 439.320(4) (West 2011) (noting
that for policy and procedural purposes, a quorum requires five Board members); How the Parole Process works,
KENTUCKY.GOV, http://justice.ky.gov/parolebd/process.htm (last visited Mar. 1, 2011). In non-death penalty cases,
a Board panel unanimously may impose parole with or without conditional releases, final parole revocation, and/or
final discharge to eligible inmates. Ky. REV. STAT. ANN. § 439.330(1) (West 2011). If a decision is not unanimous,
or if the Governor or a Board member so requests, the entire Board will convene and vote before notifying the
inmate of its decision. Ky. REV. STAT. ANN. § 439.320(4) (West 2011). The Board employs two administrative law
judges who conduct initial probable cause hearings for inmates accused of parole violations, which occur before a
final Parole Revocation Hearing conducted by the Board. How the Parole Process works, KENTUCKY.GOV,
http://justice.ky gov/parolebd/process.htm (last visited June 1, 2011).
‘SS Kentucky Parole Board, KENTUCKY.GOV, http://justice.ky.gov/parolebd (last visited June 1, 2011).
136 Interview with Verman Winbum, supra note 61.
‘87 See Bill Estep & Sheryl Edelen, Attorney: Defenders Had Set Up McQueen, LEXINGTON HERALD-LEADER, at
Al.
294
retreat, and may attend the annual Association of Paroling Authorities Intemational Conference
each year.!°* However, since the Board has never been authorized to investigate and provide a
clemency recommendation to the Governor in a death penalty case, and Board members are not
required to undergo any training on special considerations in death penalty clemency cases, we
are unaware of the extent to which the Parole Board’s expertise is applicable to clemency
determinations in death penalty cases.
In light of the foregoing, we are unable to determine whether the Commonwealth of Kentucky is
in compliance with Recommendation #10.
Clemency may be the only available avenue for the Commonwealth to correct serious errors that
occurred at a death row inmate’s trial or to consider new information related to the
appropriateness or validity of a death sentence in a particular case. Furthermore, difficult legal
issues— such as procedural default— are also likely to be raised in a death row inmate's petition
for clemency. Given the complexity of the issues involved, the Kentucky Assessment Team
recommends that all parties involved in the clemency decision-making process should be well-
educated on the relevant issues, including the judicial system’s inability to grant relief under
certain circumstances and the broad-based nature of the clemency power.
J. Recommendation #11
To the maximum extent possible, clemency determinations should be insulated from
political considerations or impacts.
Section 77 of the Kentucky Constitution explicitly requires the Govemor to file each application
for clemency s/he receives, along with a statement of the reasons for his decision on the
application, and to make the application and statement “always” available to the public.'**
The two Kentucky executive orders granting clemency since 1976 were published in the
Secretary of State’s Executive Journal and contain specific statements on the reasons for the
grant of clemency.’“° Harold McQueen was executed on July 1, 1997 after exhausting his state
and federal appeals and being denied clemency by Govemor Patton.’ The Kentucky
188 Ky. REV. STAT. ANN. § 439.320 (West 2011) (requiring “at least five (5) years of actual experience in the field
of penology, correction work, law enforcement, sociology, law, education, social work, medicine, or a combination
thereof, or have served at least five (5) years previously on the Parole Board.”); Interview with Verman Winbum,
supra note 61 (noting that all training is subject to budgetary restrictions and, at times, Board members pay their
own way); Ky. PAROLE BD., CODE OF ETHICS, RULE 2.1, available at http://www justice.ky.gov/parolebd/ethics.htm.
189 Ky, Const. § 77 (The Governor “shall have power to remit fines and forfeitures, commute sentences, grant
reprieves and pardons, except in case of impeachment, and he shall file with each application therefor a statement of
the reasons for his decision thereon, which application and statement shall always be open to public inspection.”);
Ky. REV. STAT. ANN. § 439.450 (West 2011).
40 Executive Journal Overview, EXEC. Ky. SEC’y OF STATE, http://www.sos.ky.gov/executive/journal (last visited
June 9, 2010) (search for “commutation” or “pardon”).
‘4 Letter from Paul E. Patton, Govemor, Commonwealth of Kentucky, to Hon. Stefanie McArdle, Counsel to
Harold McQueen Jr. (June 30, 1997) (on file with author) (“My reason for this decision is that in this case I do not
believe it is proper, through the power of clemency, to substitute my judgment for that of the General Assembly, the
Courts and the juries of this Commonwealth.”). See also Ky. Exec. Order No. 97-716 (June 11, 1997) (Death
Warrant for Harold McQueen, Jr.).
295
Assessment Team has been unable to locate clemency applications filed on behalf of McQueen
with any Govemor during his sixteen years on death row,'"? and we are therefore unable to
identify the reasons proffered by McQueen’s counsel in support of a grant of clemency. In
addition, in the only formal denial of clemency by a Kentucky Governor, former Govemor
Patton simply stated that he did “not believe it is proper, through the power of clemency, to
substitute [his] judgment for that of the General Assembly, the Courts and the juries of this
Commonwealth,”'’ and we are therefore unable identify the reason for the Governor's decision
in this case.
According to the Kentucky Department of Public Advocacy (DPA), it has filed a number of
clemency petitions on behalf of death row inmates over the years,’ as has the Louisville Metro
Public Defender’s Office (Metro Defender).° Despite clear language in Kentucky's
Constitution that all clemency petitions and a statement of reasons for every clemency decision
be open to public inspection,“ our search has only uncovered clemency applications filed on
behalf of four death row inmates, in addition to one denial of clemency, in the possession of the
Kentucky Department of Archives and Libraries.“’ It appears that while Kentucky Govemors
have received a number of clemency applications for death row inmates over the years,
applications for clemency that are not granted may not be officially “denied” by the Governor,
but instead are simply not acted upon during the Governor's administration. Furthermore,
concems raised upon some Kentucky Govemors’ use of pardons indicates that, similar to the
12 Email to Paula Shapiro from Tim Tingle, Manager, Archival Services Branch, Ky. Dep’t for Libraries &
Archives, July 28, 2011 (on file with author) (“I can confirm that I did not locate any records related to Harold
McQueen in the pardon records from Governors Patton, Jones, Wilkinson (1987-1991) or Collins (1983-1987).
One caveat: there is one series of “prisoner” related correspondence in the Wilkinson papers that seems to be in no
discernible order. These are several boxes of loose papers, and considering the volume, I was unable to go through
it page by page. I did, however, check the actual pardon records for Wilkinson, with no success.”).
“43 Letter from Paul E. Patton, Governor, Commonwealth of Kentucky, to Hon. Stefanie McArdle, Counsel to
Harold McQueen Jr. (June 30, 1997) (on file with author).
Ms Interview with Tim Amold, supra note 38.
“5 According to the Chief Public Defender in Louisville, there have been additional informal requests “that might
be characterized as ‘quasi’ or ‘anticipatory’ clemency letters” for gubernatorial clemency by the Metro Defender.
Email to Paula Shapiro from Daniel T. Goyette, Chief Public Defender, Louisville Metro Public Defender’s Office,
July 29, 2011 (on file with author).
48" Ky. Cons. § 77. We note that according to his General Counsel, Govemor Beshear has received no clemency
applications from death row inmates. See Ky. Response to Clemency Questionnaire, supra note 6, at 2 (“Governor
Beshear has received no clemency petitions since taking office.”).
7 Two applications found in the papers of Governor Brereton Jones (1991-1995), another two in Governor Emie
Fletcher’s (2003-2007) papers, and one in Govemor Patton’s (1995-2003) papers. Emails and Materials to Paula
Shapiro from Tim Tingle, Manager, Archival Services Branch, Ky. Dep't for Libraries & Archives, June 1, 2011,
July 1, 2011, July 13, 2011, July 29, 2011 (on file with author). According to the Manager at the Archival Services
Branch for the Kentucky Department of Libraries and Archives (Archives), the process for archiving records from
Governors’ administrations is that Archives
receive[s] records from the Govemor’s Office at the end of each administration. Any clemency
requests would almost certainly go through the General Counsel section of the Govemor’s Office. We
received extensive series of “pardon application” files from the administrations of Govemor Emie
Fletcher (2003-2007) and Paul Patton (1995-2003). ... I checked the files for the eleven names [of
death row inmates] you listed in your message below, but found nothing for any of those names in the
records of either administration.
Id.
148 Interview with Selina Bowman, supra note 23.
296
exercise of pardon power, clemency decisions may not be insulated sufficiently from political
decisions or impacts.
Ultimately, we do not have sufficient information to determine if the Commonwealth of
Kentucky is in compliance with Recommendation #11.
As discussed, no Kentucky governor has authorized the Kentucky Parole Board (Board) to
investigate and make a recommendation in a capital clemency case.'” One of the ways in which
the clemency process in Kentucky could be better insulated from political considerations is
through use of the Board to undertake an investigation and conduct a public hearing for
clemency petitioners. In addition, the appointment and removal process for Board members may
serve to partially insulate the Board’s recommendation to the Governor from political
considerations.'°° Furthermore, in the event that the Board is authorized to act, the investigation,
report, and recommendation of the Board should be made available to the public.
4° Interview with Verman Winbum, supra note 61. Moreover, parole hearings conducted by the Board are open to
the public, which gives the parole process some transparency, and parole determinations include the Board’s
reasoning. Frequently Asked Questions, Ky. PAROLE BD., http://www justice.ky.gov/parolebd/faq.htm#6 (last
visited June 9, 2011).
150 See supra notes 133-134 and accompanying text.
297
298
CHAPTER TEN
CAPITAL JURY INSTRUCTIONS
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
In virtually all jurisdictions that authorize capital punishment, jurors in capital cases have the
“awesome responsibility” of deciding whether another person will live or die.' Jurors,
prosecutors, defendants, and the general public rely upon state trial judges to present fully and
accurately, through jury instructions, the applicable law to be followed in jurors’ decision-
making. Sometimes, however, jury instructions are poorly written and conveyed. As a result,
instructions may tend to confuse jurors, rather than communicate.”
It is important that trial judges impress upon jurors the full extent of their responsibility to decide
whether the defendant will live or die or to make their advisory recommendation on sentencing.
Trial courts may give instructions that lead jurors to misunderstand their responsibility or to
believe that reviewing courts independently will determine the appropriate sentence. In some
cases, jurors may conclude that their decisions are not vitally important in determining whether a
defendant will live or die.
Furthermore, courts must ensure that jurors do not act on the basis of serious misimpressions,
such as a belief that a sentence of “life without parole” does not ensure that the offender will
remain in prison for the rest of his/her life. Jurors holding this or other mistaken beliefs
may vote to impose a death sentence because they erroneously assume any lesser sentence
eventually will result in the release of the offender within some number of years.
Jurors also must understand the meaning of mitigation as well as their ability to bring mitigating
factors to bear when considering capital punishment. Unfortunately, jurors often confuse
mitigation with aggravation, or they may believe that they cannot consider evidence as
mitigating unless it is proved beyond a reasonable doubt to the satisfaction of every member of
the jury.
' Caldwell v. Mississippi, 472 U.S. 320, 341 (1985) (quotations omitted).
See William J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness
from Capital Sentencing, 39 Crim. L. BULL. 51 (2003); see also James Luginbuhl, Comprehension of Judges’
Instructions in the Penalty Phase of a Capital Trial, 16 Law & Hum. BEHAV. 203, 204 (1992) (listing “[p]ast
research . .. demonstrat[ing] jurors’ inadequate comprehension of judges’ instructions”).
299
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
Kentucky judges may use sample jury instructions as templates, modifying those instructions
substantially at their own initiative or at the request of one of the parties.’ Although regarded by
the courts of Kentucky as “invaluable” resources, sample jury instructions found in Kentucky
Instructions to Juries (Cooper) “or any other established authorities ... are not holy writs.”*
Nevertheless, as it is common practice in the Commonwealth for judges to rely on sample
instructions—particularly those found in Cooper—these sample instructions are useful in
examining jury instructions in Kentucky capital cases.
A. Kentucky Statutory and Case Law on Capital Jury Instructions
Four offenses are labeled “capital offenses” in Kentucky’s penal code.° If a defendant is found
guilty of a capital offense, then s/he must receive one of the following five sentences: (1) death,
(2) a term of imprisonment for life without benefit of probation or parole, (3) a term of
imprisonment for life without benefit of probation or parole until s/he has served a minimum of
twenty-five years of his/her sentence, (4) a sentence of life, or (5) a term of not less than twenty
years nor more than fifty years.° Moreover, Kentucky law requires the judge to provide specific
instructions to the jury “stat[ing], subject to the aggravating and mitigating limitations and
requirements of [the capital sentencing statute], that the jury may recommend upon a conviction
for a capital offense [one of the five aforementioned sentences].”” In other words, if a convicted
defendant is eligible for a death sentence, the jury must be informed of all available sentencing
options under the law.
For a capital defendant to receive a death sentence, the jury also must “find[] the existence of at
least one [statutorily recognized] aggravating circumstance[] and determine[], after considering
all the evidence in aggravation and in mitigation, that death is the appropriate punishment.”
Accordingly, Kentucky law requires judges presiding over the sentencing phase of a capital case
Ky. R. CRM. P. 9.54(1)-(2). The duty of the court “to instruct the jury in writing on the law of the case . . . may
not be waived except by agreement of both the defense and the prosecution.” Ky. R. CRIM. P. 9.54(1). The
Commonwealth’s approach to jury instructions regularly has been described as “bare bones,” with
“supplementation, elaboration and detailed explanation [as to those instructions] fall[ing] within the realm of
advocacy.” Collins v. Galbraith, 494 S.W.2d 527, 531 (Ky. 1973); 1 W. Cooper & D. CETRULO, KENTUCKY
INSTRUCTIONS TO JURIES, at v (Sth ed. 2010) [hereinafter COOPER & CETRULO].
4 Commonwealth v. Leinenbach, No. 2010-SC-000091-DG, 2011 WL 3760864, at *2 (Ky. Aug. 25, 2011). But
see Gordon v. Commonwealth, No. 2008-CA-001189-MR, 2010 WL 668642, at *3 (Ky. Feb. 26, 2010) (passing
favorably on instructions because their “language [was] consistent with [Cooper]”).
* See Ky. REV. STAT. ANN. § 507.020(2) (West 2011) (classifying murder as a capital offense); Ky. REV. STAT.
ANN. § 509.040(2) (West 2011) (classifying kidnapping that results in death as a capital offense); Ky. REV. STAT.
ANN. § 507A.020(2) (West 2011) (classifying fetal homicide in the first degree as a capital offense); Ky. REV. STAT.
ANN. § 527.200(3) (West 2011) (classifying use of a weapon of mass destruction in the first degree as a capital
offense, provided “a person other than the defendant is killed”).
6 Ky. REV. STAT. ANN. § 532.030(1) (West 2011).
7 Ky. REV. STAT. ANN. § 532.030(4) (West 2011). Although the statute refers to the jury “recommend[ing]” a
sentence, the jury must be instructed to “fix a sentence.” Tamme v. Commonwealth, 759 S.W.2d 51, 53 (Ky. 1988)
(citing Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985) and Grooms v. Commonwealth, 756 S.W.2d 131, 141
(Ky. 1988)). In so doing, “the responsibility of the jury in [death penalty] cases remains undiminished.” Ward, 695
S.W.2d at 407.
* Brown v. Commonwealth, 313 S.W.3d 577, 590 (Ky. 2010).
300
to, “[uJpon the conclusion of the evidence and arguments ...
instructions.” In particular,
the judge .. . shall include in his[/her] instructions to the jury for it to consider,
any mitigating circumstances or aggravating circumstances otherwise authorized
by law and any of the [] statutory aggravating or mitigating circumstances [listed
in the statute] which may be supported by the evidence . . . a
As this statute suggests, Kentucky law recognizes two sources for aggravating and mitigating
circumstances. The first source is the Commonwealth’s capital sentencing statute, found at KRS
532.025(1)(b).'! This statute specifies eight aggravating circumstances and eight mitigating
circumstances.'* The eight aggravating circumstances are,
ie)
2)
(3)
(4)
(5)
(6)
()
(8)
The offense of murder or kidnapping was committed by a person with a prior
record of conviction for a capital offense, or the offense of murder was
committed by a person who has a substantial history of serious assaultive
criminal convictions;
The offense of murder or kidnapping was committed while the offender was
engaged in the commission of arson in the first degree, robbery in the first
degree, burglary in the first degree, rape in the first degree, or sodomy in the
first degree;
The offender by his act of murder, armed robbery, or kidnapping knowingly
created a great risk of death to more than one [] person in a public place by
means of a weapon of mass destruction, weapon, or other device which
would normally be hazardous to the lives of more than one [] person;
The offender committed the offense of murder for himself or another, for the
purpose of receiving money or any other thing of monetary value, or for
other profit;
The offense of murder was committed by a person who was a prisoner and
the victim was a prison employee engaged at the time of the act in the
performance of his duties;
The offender’s act or acts of killing were intentional and resulted in multiple
deaths;
The offender’s act of killing was intentional and the victim was a state or
local public official or police officer, sheriff, or deputy sheriff engaged at the
time of the act in the lawful performance of his duties; and
The offender murdered the victim when an emergency protective order or a
domestic violence order was in effect, or when any other order designed to
protect the victim from the offender, such as an order issued as a condition of
° Ky. REV. STAT. ANN. § 532.025(1)(b) (West 2011); Ky. R. CRIM. P. 9.54(1). In practice, trial courts often recite
these instructions before the Commonwealth and defense counsel present their penalty-phase arguments.
10
ul
12
Ky. REV. STAT. ANN. § 532.025(2) (West 2011) (emphasis added).
See St. Clair v. Commonwealth, 319 S.W.3d 300, 316 (Ky. 2010).
Ky. REV. STAT. ANN. § 532.025(2) (West 2011).
301
give the jury appropriate
a bond, conditional release, probation, parole, or pretrial diversion, was in
effect.'*
The eight mitigating circumstances are,
(1) The defendant has no significant history of prior criminal activity;
(2) The capital offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance even though the
influence of extreme mental or emotional disturbance is not sufficient to
constitute a defense to the crime;
(3) The victim was a participant in the defendant’s criminal conduct or
consented to the criminal act;
(4) The capital offense was committed under circumstances which the defendant
believed to provide a moral justification or extenuation for his conduct even
though the circumstances which the defendant believed to provide a moral
justification or extenuation for his conduct are not sufficient to constitute a
defense to the crime;
(5) The defendant was an accomplice in a capital offense committed by another
person and his participation in the capital offense was relatively minor;
(6) The defendant acted under duress or under the domination of another person
even though the duress or the domination of another person is not sufficient
to constitute a defense to the crime;
(7) At the time of the capital offense, the capacity of the defendant to appreciate
the criminality of his conduct to the requirements of law was impaired as a
result of mental illness or retardation or intoxication even though the
impairment of the capacity of the defendant to appreciate the criminality of
his conduct or to conform the conduct to the requirements of law is
insufficient to constitute a defense to the crime; and
(8) The youth of the defendant at the time of the crime. '*
In addition to these sixteen circumstances, the jury also may be instructed on additional
aggravating and mitigating circumstances “otherwise authorized by law.” For example,
although KRS 532.055 has been called the Commonwealth’s “non-capital felony sentencing
statute,”'° the Kentucky Supreme Court has held that the types of evidence described in KRS
532.055 “may be offered by the Commonwealth [as] relevant to sentencing [in capital cases].”"”
3 Ky. REV. STAT. ANN. § 532.025(2)(a) (West 2011).
Ky. REV. STAT. ANN. § 532.025(2)(b) (West 2011).
15 Ky. REV. STAT. ANN. § 532.025(2) (West 2011). The U.S. Supreme Court has permitted jurisdictions to allow
juries to consider non-statutory aggravating factors, and has required States to allow juries to consider non-statutory
mitigating factors. See, e.g., California v. Ramos, 463 U.S. 992, 1008 (1983) (non-statutory aggravators); Lockett v.
Ohio, 438 U.S. 586, 608 (1978) (non-statutory mitigators).
16 St. Clair, 319 S.W.3d at 316 (emphasis added).
17 Id. at 316-17. Incidentally, the Kentucky Supreme Court has held that KRS 532.055 “is a legislative attempt to
invade the rule making prerogative of the Supreme Court” and, therefore, that “it violates the separation of powers
doctrine enunciated in Section 28 of the Kentucky Constitution.” Manns v. Commonwealth, 80 S.W.3d 439, 444
(Ky. 2002) (quoting Commonwealth v. Reneer, 734 S.W.2d 794, 796 (Ky. 1987)). Notwithstanding this conclusion,
the Court overtly has “declined, under the principle of comity, to strike the statute down as unconstitutional.” Id.
(citing Reneer, 734 S.W.2d at 798). Although the vast majority of KRS 532.055, as amended, remains in effect,
302
Thus, and as occurred in St. Clair v. Commonwealth, victim-impact evidence is admissible in
capital sentencing proceedings because such evidence is admissible under the non-capital
sentencing statute. '*
The Kentucky Supreme Court has suggested that capital sentencing instructions “conform to the
statutory language” establishing the death-eligible offense and applicable aggravators and
mitigators."” Instructions also must “ensure that a finding of [an] aggravator was unanimously
made by the jury.”° For example, if a capital defendant has multiple prior convictions, only
some of which qualify as aggravating circumstances for the purposes of justifying a death
sentence,”! “the instruction must require the jury specifically to identify the conviction that the
jury uses to find [that] particular aggravator.””? However, the jury is not required to be
instructed that it must find beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating circumstances,” nor must the Commonwealth prove, during the penalty
phase of a capital case, the nonexistence of mitigating circumstances.”
Finally, Kentucky law dictates that these mandatory jury instructions, which inform the jury of
all available sentencing options,”> direct the jury to consider any aggravating and mitigating
circumstances supported by the evidence,”® and other instructions deemed “appropriate” by the
trial judge,”’ “shall be given in charge and in writing to the jury for its deliberation.””*
B. Kentucky Sample J ury Instructions
1. Instructions on Available Punishments
including a provision pertaining to victim impact evidence, certain parts of the statute have been found
unconstitutional and nullified. See, e.g., id. at 445 (statute authorizing the use of prior juvenile adjudications for
impeachment purposes “falls within the scope of KRE 609(a),” does not comport with the general understanding of
KRE 609(a), and therefore is a nullity); Terry v. Commonwealth, 153 S.W.3d 794, 804 (Ky. 2005).
1S St. Clair, 319 S.W.3d at 317. But see Brown, 313 S.W.3d at 590 (“[KRS 532.025] lists various circumstances
tending to aggravate or to mitigate the offense and provides that a defendant convicted of a capital crime may be
sentenced to death if, but only if, at the conclusion of a presentence hearing, the [jury] finds the existence of at least
one of the listed aggravating circumstances . . . .”) (emphasis added).
© St. Clair, 319 S.W.3d at 308.
20 Id. See also Ring v. Arizona, 536 U.S. 584, 609 (2002) (holding that the Sixth Amendment requires the jury,
not the sentencing judge, to find aggravating circumstances warranting imposition of the death penalty because these
factors “operate as ‘the functional equivalent of an element of a greater offense’”) (quoting Apprendi v. New Jersey,
530 U.S. 466, 494 n.19 (2000)).
2! See Ky. REV. STAT. ANN. § 532.025(2)(a)(1) (West 2011) (providing, as an aggravating circumstance, that
“{t]he offense of murder or kidnapping was committed by a person with a prior record of conviction for a capital
offense, or the offense of murder was committed by a person who has a substantial history of serious assaultive
criminal convictions”).
» St. Clair, 319 S.W.3d at 308.
23 Ice v. Commonwealth, 667 S.W.2d 671, 678 (Ky. 1984) (citing Smith v. Commonwealth, 599 S.W.2d 900 (Ky.
1980).
4 Smith, 599 S.W.2d at 911-12.
5 Ky. REV. STAT. ANN. § 532.030(4) (West 2011).
26 Ky. REV. STAT. ANN. § 532.025(2) (2011).
27 Ky. REV. STAT. ANN. § 532.025(1)(b) (2011).
°8 Ky. REV. STAT. ANN. § 532.025(3) (2011) (emphasis added).
303
Cooper offers several sample jury instructions for use during the penalty phase of a capital case.
The sample instruction on possible punishments during the penalty phase of a capital case is as
follows:
You may fix the Defendant’s punishment for the [Murder] [Kidnapping] of
(victim) at:
(1) Confinement in the penitentiary for a term of not less than 20 years nor more
than 50 years;
OR
(2) Confinement in the penitentiary for life;
OR
(3) Confinement in the penitentiary for life without benefit of probation or parole
until he has served a minimum of 25 years of his sentence;
OR
(4) Confinement in the penitentiary for life without benefit of probation or
parole;
OR
(5) Death.
But you cannot fix his sentence at death, or at confinement in the penitentiary for
life without benefit of probation or parole, or at confinement in the penitentiary
for life without benefit of probation or parole until he has served a minimum of 25
years of his sentence, unless you are satisfied from the evidence beyond a
reasonable doubt that one of the statements listed in Instruction No.
(Aggravating Circumstances) is true in its entirety, in which event you must state
in writing, signed by the foreperson, that you find the aggravating circumstance or
circumstances to be true beyond a reasonable doubt.”
A separate instruction that also may be given to the jury during the penalty phase when
“evidence [will] be presented in extenuation, mitigation, and aggravation of punishment”””
underscores that a finding of an aggravating circumstance must be beyond a reasonable doubt:
You have tried the Defendant and have returned a verdict finding him guilty of
the [Murder] [Kidnapping] of (victim). From the evidence placed
before you in that trial, you are acquainted with the facts and circumstances of the
crime itself. You [will now receive] [have now received] additional evidence
from which you shall determine whether there are mitigating or aggravating facts
and circumstances bearing upon the question of punishment, following which you
shall fix a sentence for the Defendant. In considering such evidence as may be
unfavorable for the Defendant, you will bear in mind... that the law presumes a
defendant to be innocent unless and until you are satisfied from the evidence
beyond a reasonable doubt that he is guilty. You shall apply that same
presumption in determining whether there are aggravating circumstances bearing
29
1 CoopER & CETRULO § 12.07.
30
1 COOPER & CETRULO § 12.04A cmt.
304
on the question of what punishment should be fixed for the Defendant in this
31
case.
Although the instruction provides, in the bracketed text, “alternative language ... so that [the
instruction] may be used at the beginning or at the conclusion of the [presentence] evidentiary
hearing,» KRS 532.025 clearly requires that the jury be given “appropriate
instructions”—presumably including the instruction regarding aggravating
circumstances—“[u]pon the conclusion of the evidence and arguments.”*”
2. Specific Aggravating and Mitigating Circumstances Instructions
a. Aggravating Circumstances
Cooper also provides sample instructions that direct the jury to consider appropriate aggravating
and mitigating circumstances, and these instructions largely mirror the language found at KRS
532.025(2)(a) and KRS 532.025(2)(b).*
With respect to aggravating circumstances, the sample instruction deviates from the aggravating-
circumstances statute in two significant respects. First, for the aggravating circumstance
regarding “murder . . . for the purpose of receiving money or any other thing of monetary value,
or for other profit,” the instruction may be amended to define “for profit” as ““a motive of ‘a hope
to obtain financial gain’ or ‘a hope to avoid financial loss.””*> The Kentucky Supreme Court
explicitly has sanctioned this suggested definition of “for profit.”*°
The second deviation concerns an aggravating circumstance not found in KRS 532.025(2)(a) that
may be added to the sample instruction: “In the course of the offense of his act of Kidnapping,
the Defendant murdered the victim.”*” Because kidnapping is enhanced to a capital offense
“when the victim is not released alive” or later dies as a consequence of the kidnapping, it serves
as an aggravating circumstance for the defendant to have murdered the victim—that is, a
defendant’s murder of his/her kidnapping victim suffices to impose the death penalty.**
Finally, prior to listing the case-specific aggravating circumstances, the sample instruction
reiterates the burden of proof for finding an aggravating circumstance: “In fixing a sentence for
3! 1 CooPER & CETRULO § 12.04A.
321 COOPER & CETRULO § 12.04A cmt.
3 Ky. Rev. STAT. ANN. § 532.025(1)(b) (West 2011) (emphasis added). But see Ky. R. Crim. P. 9.42
(empowering the trial court to vary the order of proceedings “for special reasons,” albeit the rule is silent as to the
giving of instructions).
** Compare 1 CoopER & CETRULO § 12.06 with Ky. REV. STAT. ANN. § 532.025(2)(a) (West 2011); compare 1
Cooper & CETRULO § 12.05 with Ky. REV. STAT. ANN. § 532.025(2)(b) (West 2011).
35 1 CooPER & CETRULO § 12.06.
6 Meece v. Commonwealth, 348 S.W.3d 627, 721 (Ky. 2011). The genesis of this broader definition of “for
profit” is explained in Cooper as having arisen in a capital case “where there was evidence that the defendant
murdered his estranged wife to avoid paying court-ordered maintenance.” 1 COOPER & CETRULO § 12.06 cmt.
371 CoopER & CETRULO § 12.06.
8 Harris v. Commonwealth, 793 S.W.2d 802, 804-05 (Ky. 1990) (finding that the murder of one’s kidnapping
victim serves as an aggravating circumstance by way of the “otherwise authorized by law” language of KRS
532.025(2)).
305
the Defendant for the offense of [Murder] [Kidnapping], you shall consider the following
aggravating circumstances which you may believe from the evidence beyond a reasonable doubt
to be true....”*
b. Mitigating Circumstances
The instruction respecting mitigating circumstances conforms to the statutory language found at
KRS 532.025(2)(b) and includes, as a ninth circumstance for the jury to consider, a catchall
consistent with the U.S. Supreme Court’s holding in Lockett v. Ohio”’:
In fixing a sentence for the Defendant for the offense of [Murder] [Kidnapping],
you shall consider such mitigating or extenuating facts and circumstances as have
been presented to you in the evidence and you believe to be true, including but not
limited to such of the following as you believe from the evidence to be true:
[listing the eight mitigating circumstances found at KRS 532.025(2)(b)]
(_) Any other circumstance or circumstances arising from the evidence which
you, the jury, deem to have mitigating value.
In addition to the foregoing, you shall consider also those aspects of the
Defendant’s character, and those facts and circumstances of the particular offense
of which you have found him guilty, about which he has offered evidence in
mitigation of the penalty to be imposed upon him and which you believe from the
evidence to be true.*!
The comment to this instruction clarifies that, “[w]here the jury is instructed to consider other
mitigating circumstances, as in the last listed factor, there is no requirement to specifically
instruct the jury on additional mitigating factors introduced by the defendant.”*? Furthermore,
the mitigating circumstances instruction need not explicitly state that each juror may make a
determination as to mitigation independent of his/her peers.”
1 CoopER & CETRULO § 12.06 (emphasis added). See also 1 COOPER & CETRULO § 12.04A (“In considering
such evidence as may be unfavorable for the Defendant, you will bear in mind . . . that the law presumes a defendant
to be innocent unless and until you are satisfied from the evidence beyond a reasonable doubt that he is guilty.”)
(emphasis added).
49 Lockett v. Ohio, 438 U.S. 586, 608 (1978).
411 Cooper & CETRULO § 12.05.
#1 CoopER & CETRULO § 12.05 (citing Halvorsen v. Commonwealth, 730 S.W.2d 921 (Ky. 1986) and White v.
Commonwealth, 671 S.W.2d 241 (Ky. 1983)). In Halvorsen, appellant sought a specific instruction “on
nonstatutory mitigating factors, such as ‘[defendant’s] stable upbringing in an obviously healthy, caring home.’”
Halvorsen, 730 S.W.2d at 926. Likewise, in White, the [defendant] argued that “all mitigating circumstances were
not considered by . . . or presented to the jury,” a contention the Kentucky Supreme Court dismissed by referring to
the sweeping language of the jury instruction, “you shall consider such mitigating or extenuating circumstances as
have been presented to you in the evidence, including but not limited to.” White, 671 S.W.2d at 246.
See Kordenbrock v. Scroggy, 919 F.2d 1091, 1120-21 (6th Cir. 1990) (“The instructions carefully stated that
finding an aggravating factor required [unanimous] agreement, but it cannot be reasonably inferred that silence as to
finding a mitigating factor would likely cause the jury to assume that unanimity was also a requirement. Indeed it
would indicate the opposite.”) (emphasis omitted).
306
II. ANALYSIS
A. Recommendation #1
Jurisdictions should work with attorneys, judges, linguists, social scientists,
psychologists and jurors to evaluate the extent to which jurors understand
instructions, revise the instructions as necessary to ensure that jurors understand
applicable law, and monitor the extent to which jurors understand revised
instructions to permit further revision as necessary.
The Commonwealth of Kentucky has not formally adopted pattern jury instructions for use in
death penalty cases, although Kentucky law does impose certain requirements on trial courts
with respect to capital jury instructions.“* Instead, trial courts routinely rely on Kentucky
Instructions to Juries (Cooper) and other authorities to formulate the instructions that will be
given to jurors in capital cases.” Cooper, in particular, periodically has been revised and
updated to reflect statutory and case law developments in the Commonwealth. Nevertheless,
there is no indication that the Commonwealth consults with attorneys, judges, linguists, social
scientists, psychologists, and jurors to evaluate the extent to which jurors understand the
instructions they are given in capital cases.
In presenting an instruction to a jury, “[t]he objective is to present an issue or issues in a form
intelligible to the jury.”*” Nevertheless, numerous nationwide studies have revealed that jurors,
particularly jurors participating in capital cases, often do not understand the applicable law
articulated in these instructions.** Kentucky-specific data compiled by the Capital Jury Project
indicate that jurors in Kentucky death penalty cases are no exception to this troubling nationwide
reality.” The Capital Jury Project conducts three-to-four interviews with jurors who have served
in capital trials.°° Since 1991, it has interviewed 1,198 jurors who have served in 353 capital
trials in fourteen states, including Kentucky. .
“See, eg., Ky. R. CRIM. P. 9.56(2) (providing that “[t]he instructions should not attempt to define the term
“reasonable doubt.””).
45 Commonwealth v. Leinenbach, No. 2010-SC-000091-DG, 2011 WL 3760864, at *2 (Ky. Aug. 25, 2011);
Gordon v. Commonwealth, 2010 WL 668642, at *3 (Ky. Feb. 26, 2010) (passing favorably on instructions because
their “language [was] consistent with [Cooper],” among other reasons); 1 COOPER & CETRULO, at v.
46 1 COOPER & CETRULO, at v.
47 Shewmaker v. Richeson, 344 S.W.2d 802, 806 (Ky. 1961) (citing Louisville & Nashville R.R. Co. v. King’s
Admm’r, 115 S.W. 196, 198 (Ky. 1909)).
4 See, e.g., William J. Bowers et al., Jurors’ Failure to Understand or Comport with Constitutional Standards in
Capital Sentencing: Strength of the Evidence, 46 Crim. L. BULL. 1147, 1151-52 (2010) (summarizing certain
findings of the Capital Jury Project, including that jurors “[fJail[] to understand sentencing requirements” and
“[mlistakenly believ[e] the death penalty is required by law”); Luginbuhl, supra note 2, at 204 (listing “[p]ast
research . .. demonstrat[ing] jurors’ inadequate comprehension of judges’ instructions”).
*” See, e.g., Bowers & Foglia, supra note 2, at 72 (Kentucky-specific data). The Capital Jury Project “collect[s]
. .. information about jury decision making from in-depth interviews with jurors who have actually served in capital
trials around the nation.” Id. at 55.
°° See Capital Jury Project, What is the Capital Jury Project?, http://www.albany.edu/scj/13189.php (last visited
307
For example, 15.6% of interviewed Kentucky capital jurors failed to understand that aggravating
circumstances needed to be found beyond a reasonable doubt.** Moreover, high percentages of
these jurors misunderstood the guidelines for considering mitigating evidence.* In particular,
45.9% of these jurors “failed to understand ... that they [could] consider any mitigating
evidence” while 61.8% of these jurors “incorrectly thought [that] they had to be convinced
beyond a reasonable doubt on findings of mitigation.” Finally, 83.5% of these jurors “failed to
realize [that] they did not have to be unanimous on findings of mitigation,” despite the U.S.
Supreme Court’s decision in Mills v. Maryland that held that such unanimity is not required.”
Interviewed Kentucky capital jurors also held erroneous beliefs about whether the death penalty
is required. As described in a 2003 study summarizing Capital Jury Project methodologies and
findings,
[interviewed] jurors were asked whether the evidence in their case established that
the defendant’s crime was “heinous, vile or depraved” and whether the defendant
would be “dangerous in the future.” ... Jurors were then asked whether, after
hearing the judge’s sentencing instructions, they thought the law required them to
impose death if the defendant’s crime was “heinous, vile or depraved” or if the
defendant would be “dangerous in the future.”°°
In reply, 42.7% of Kentucky capital jurors believed that death was required if the defendant’s
crime was “heinous, vile or depraved,” and 42.2% believed that death was required if the
defendant would be “dangerous in the future.”*” Yet as a matter of federal and Commonwealth
law, the existence of an aggravating circumstance can never suffice to require the death
penalty.
As the Capital Jury Project data suggest, it is imperative that the Commonwealth of Kentucky
take steps to revise the instructions typically given in capital cases. Moreover, the
Commonwealth must monitor closely and continually whether any changes to these instructions
ameliorate jurors’ tendency to misunderstand their “awesome responsibility.” Because the
Commonwealth has not worked to improve jurors’ understanding of the instructions used in
capital cases, Kentucky is not in compliance with Recommendation #1.
B. Recommendation #2
Jurors should receive written copies of “court instructions” (referring to the judge’s
entire oral charge) to consult while the court is instructing them and while
conducting deliberations.
Bowers & Foglia, supra note 2, at 68, 71.
8 Id.
4 Id.
55 Id.; see also Mills v. Maryland, 486 U.S. 367, 384 (1988).
Bowers & Foglia, supra note 2, at 72 (emphasis added).
Id. See also Ursula Bentele & William J. Bowers, How Jurors Decide on Death: Guilt Is Overwhelming;
ravation Requires Death; and Mitigation Is No Excuse, 66 BROOK. L. REV. ; ¢ :
Agg. tion Requires Death; and Mitigation Is No E 66Bi L. REV. 1011, 1032-33 (2001)
58°" See Woodson v. North Carolina, 428 U.S. 280, 301 (1976).
37
308
Kentucky law requires that “[t]he instructions as determined by the trial judge to be warranted by
the evidence or as required by KRS 532.030(4) shall be given in charge and in writing to the jury
for its deliberation.”"° As mentioned in the Factual Discussion, mandatory jury instructions
include instructions informing the jury of all available sentencing options,” instructions
directing the jury to consider any aggravating and mitigating circumstances supported by the
evidence,”' and all other instructions deemed “appropriate” by the trial judge.” Furthermore,
Rule 9.54 of the Kentucky Rules of Criminal Procedure puts upon the trial court “the duty ... to
instruct the jury in writing on the law of the case, which instructions shall be read to the jury
prior to the closing summations of counsel.” Finally, although trial courts are not required to
provide these written instructions to jurors while the court delivers its oral charge, this practice
regularly is followed by the courts of the Commonwealth.
In light of the foregoing, the Commonwealth of Kentucky complies with Recommendation #2.
In addition to commending the Commonwealth for its compliance with Recommendation #2, the
Kentucky Assessment Team further recommends that the Kentucky legislature amend KRS
532.025(1)(b) to specify that a copy of capital jury instructions should be given to each juror
before the prosecution and defense counsel present their penalty-phase arguments. While this
amendment benefits capital jurors’ comprehension of their responsibilities at sentencing, it also
represents the common practice among Commonwealth trial courts.
C. Recommendation #3
Trial courts should respond meaningfully to jurors’ requests for clarification of
instructions by explaining the legal concepts at issue and meanings of words that
may have different meanings in everyday usage and, where appropriate, by directly
answering jurors’ questions about applicable law.
Jurors in capital cases routinely struggle to understand jury instructions.®° Their confusion may
be attributed to a number of factors, including “the syntax of the instructions, the manner of
°° Ky, REV. STAT. ANN. § 532.025(3) (West 2011) (emphasis added).
60 Td. at Ky. REV. STAT. ANN. § 532.030(4) (West 2011).
6! Td. at Ky. REV. STAT. ANN. § 532.025(2) (West 2011).
© Td. at Ky. REV. STAT. ANN. § 532.025(1)(b) (West 2011).
® Ky. R. Crim. P. 9.54(1) (emphasis added). Not all parts of a judge’s charge to the jury are necessarily
memorialized in writing. In Smith v. Commonwealth, for instance, none of the six written instructions repeated the
court’s oral instruction that “the law presumes a defendant innocent.” Smith, 599 S.W.2d at 910.
4 See, e.g., Email from Daniel T. Goyette, Chief Public Defender, Louisville Metro Public Defender’s Office, to
Linda Ewald, Co-chair, Ky. Assessment Team (Nov. 7, 2011) (on file with author) (“As a general rule in [Jefferson
County], the practice is to provide the jurors with a copy of the instructions at the time they are read by the judge.”).
Accord 1 COOPER & CETRULO § 12.04A cmt.
°° See Luginbuhl, supra note 2, at 204 (listing “[pJast research ...demonstrat{ing] jurors’ inadequate
comprehension of judges’ instructions); Peter Meijes Tiersma, Dictionaries and Death: Do Capital Jurors
Understand Mitigation?, 1995 UTan L. Rev. 1, 10-11 (“[L]inguists, psychologists, and other academics have
shown that jurors tend to have great difficulty understanding the instructions that are supposed to guide their
decision-making.”)
309
presentation, and the general unfamiliarity of laypersons with legal terminology.”
Accordingly, judges must respond meaningfully to jurors’ requests for clarification of the
instructions to ensure that jurors comprehend and are able to apply applicable law.
Kentucky trial courts may respond to requests for information or clarification that have been
submitted “by the jury or any juror after the jury has retired for deliberation.”® “Perplexed
juries,” the Kentucky Supreme Court recently explained, “are not simply to be left in the dark, []
and the court does not err if in response to a jury’s question it correctly clarifies a point of
law...or... correctly refers the jury to the pertinent instructions.”” Any response from the
trial court must, however, must “be given [] in open court in the presence of the defendant . . .
and the entire jury, and in the presence of or after reasonable notice [has been provided] to
counsel for the parties.””°
For example, in Muncy v. Commonwealth, the Court approved of the trial court’s supplying the
jury with a definition of the word quantity as it related to a charge of cocaine possession.”
Similarly, although not prompted by jurors’ request for clarification, the Kentucky Supreme
Court approved of a definition of “extreme emotional disturbance” for which “jur[ies] should be
instructed” in future cases, retreating from its earlier pronouncement that “we know [extreme
emotional disturbance] when we see it.”””
Although these are encouraging developments, trial courts ultimately have discretion not to
provide jurors with information that may help clarify the instructions.” Moreover, words and
phrases that are not “arcane,” “esoteric,” or “obscure” and that “jurors will have no difficulty
understanding” should not be defined for the jury, whether at the request of the parties or the
jurors themselves.”
Applying this principle, the Kentucky Supreme Court has directed trial courts to “prohibit
counsel from defin[ing] ‘reasonable doubt’ at any point in the trial” and also has admonished
°7 Susie Cho, Capital Confusion: The Effect of Jury Instructions on the Decision to Impose Death, 85 J. CRIM. L.
& CRIMINOLOGY 532, 550 (1994). See also Tiersma, supra note 66, at 13-19 (discussing evidence that jurors often
do not appreciate the meaning of the words mitigate and mitigation).
6 Ky. R. CRIM. P. 9.74; see also Ingram v. Commonwealth, 427 S.W.2d 815, 817 (Ky. 1968) (sanctioning the trial
court’s oral response to a juror’s question that “made it obvious that at least [that juror] did not understand the
written instructions”).
© Alexander v. Commonwealth, No. 2007-SC-000369-MR, 2008 WL 4291541, at *4 (Ky. Sept. 18, 2008)
(citations omitted).
Ingram, 427 S.W.2d at 817 (citing Ky. R. CRIM. P. 9.74).
7 Muncy v. Commonwealth, 132 S.W.3d 845, 848 (Ky. 2004). The Kentucky Supreme Court did express
concern that “the definition given by the trial court may not have come directly from a legal text and was given
orally to the jury in violation of RCr 9.54(1),” but the Court ultimately determined that these deficiencies had not
“unduly impacted Appellant’s rights.” Id.
7™ Edmonds v. Commonwealth, 586 S.W.2d 24, 27 (Ky. 1979); McClellan v. Commonwealth, 715 S.W.2d 464,
469 (Ky. 1986).
See, e.g., Garland v. Commonwealth, 127 S.W.3d 529, 538 (Ky. 2003) (approving a trial court’s decision to
decline to answer five questions submitted by the jury), overruled on other grounds by Lanham v. Commonwealth,
171 S.W.3d 14, 22 (Ky. 2005).
™ Hardin v. Savageau, 906 S.W.2d 356, 359 (Ky. 1995).
Commonwealth v. Callahan, 675 S.W.2d 391, 393 (Ky. 1984) (quotations added).
5
310
counsel from attempting to define “by clear and convincing evidence.””* Furthermore, in death
penalty cases trial courts have resisted defendants’ efforts to supply the jury with an instruction
defining “mitigating circumstances” despite widespread evidence that the concept of mitigation
is poorly understood by capital juries.”” This confusion likely is compounded by the fact that
jurors are provided instructions explicitly stating that aggravating circumstances must be found
“beyond a reasonable doubt.””* Kentucky trial courts also have refused to respond to jurors’
request for clarification as to the meaning of “life without the possibility of parole,” although
studies indicate that jurors often hold mistaken beliefs regarding this sentencing option.
While trial courts may respond meaningfully to jurors’ requests for clarification of instructions,
Kentucky law permits trial courts to refuse to clarify legal concepts that are of the utmost
importance during the penalty phase of a capital case. Therefore, the Commonwealth only
partially complies with Recommendation #3.
As mentioned in the analysis discussing Recommendation #1, the Capital Jury Project has found
that high percentages of interviewed Kentucky capital jurors misunderstood the guidelines for
considering mitigating evidence. The Kentucky Assessment Team therefore recommends that
the Commonwealth require trial courts to instruct capital juries on the meaning and legal import
of “mitigating circumstances.” While clarifying instructions on mitigation will lead to better-
informed decision-making in death penalty cases, it also will help to obviate any need of the jury
to seek clarification on this crucial concept in capital cases.
D. Recommendation #4
Trial courts should instruct jurors clearly on applicable law in the jurisdiction
concerning alternative punishments and should, at the defendant’s request during
the sentencing phase of a capital trial, permit parole officials or other
knowledgeable witnesses to testify about parole practices in the state to clarify
jurors’ understanding of alternative sentences.
Recommendation #4 includes two distinct yet related requirements: First, trial courts must
provide clear jury instructions concerning alternative punishments; second, trial courts must
allow testimony concerning parole practices to be admitted during the sentencing phase of a
capital trial.
7° Hardin, 906 S.W.2d at 359.
7 McKinney v. Commonwealth, 60 S.W.3d 499, 506 (Ky. 2001) (“Jury instructions at the sentence stage of a
capital trial need not include any particular words or phrases to define the concept of mitigation or the function of
mitigating circumstances.”) (citing Tamme v. Commonwealth, 973 S.W.2d 13, 37-38 (Ky. 1998)); see also Brief of
Petitioner-Appellant at 120, Dunlap v. Commonwealth, No. 09-CR-00027 (Ky. Aug. 15, 2011) (on file with author)
(asserting that “[t]he court did not use Dunlap’s tendered instructions and its instructions do not define ‘mitigating
circumstances’ or make clear what role such evidence plays in a determination by the jury to decline to impose the
death penalty”).
8 1 CoopER & CETRULO §§ 12.06, 12.07.
” Garland, 127 S.W.3d at 538.
See, e.g., Shari Seidman Diamond, Instructing on Death: Psychologists, Juries, and Judges, 48 Am.
PSYCHOLOGIST 423, 429 (1993) (finding that “only half of the jurors [questioned in the study] said they believed that
[a] defendant would die in prison if [s/]he received [a] a sentence [of life in prison without the possibility of
parole]’”).
311
Alternative Punishments
As a matter of statutory law, Kentucky trial courts must instruct jurors on alternative
punishments in capital cases. KRS 532.030(4) specifically states,
[iJn all cases in which the death penalty may be authorized the judge shall instruct
the jury in accordance with subsection (1) of this section. The instructions shall
state, subject to the aggravating and mitigating limitations and requirements of
KRS 532.025, that the jury may recommend upon a conviction for a capital
offense a sentence of death, or at [sic] a term of imprisonment for life without
benefit of probation or parole, or a term of imprisonment for life without benefit
of probation or parole until the defendant has served a minimum of twenty-five []
years of his sentence, or a sentence of life, or to a term of not less than twenty []
years nor more than fifty [] years.*!
Furthermore, the sample instruction contained in Cooper closely follows this statutory language:
You may fix the Defendant’s punishment for the [Murder] [Kidnapping] of
(victim) at:
dd) Confinement in the penitentiary for a term of not less than 20 years nor
more than 50 years;
OR
(2) Confinement in the penitentiary for life;
OR
(3) Confinement in the penitentiary for life without benefit of probation or
parole until he has served a minimum of 25 years of his sentence;
OR
(4) Confinement in the penitentiary for life without benefit of probation or
parole;
OR
(5) Death.
But you cannot fix his sentence at death, or at confinement in the penitentiary for
life without benefit of probation or parole, or at confinement in the penitentiary
for life without benefit of probation or parole until he has served a minimum of 25
years of his sentence, unless you are satisfied from the evidence beyond a
reasonable doubt that one of the statements listed in Instruction No.
[Aggravating Circumstances] is true in its entirety, in which event you must state
in writing, signed by the foreperson, that you find the aggravating circumstance or
circumstances to be true beyond a reasonable doubt.*?
8! Ky. REV. STAT. ANN. § 532.030(4) (West 2011) (emphasis added). KRS 532.030(1) lists the available
sentences for a defendant “convicted of a capital offense” that are recounted at the end of KRS 532.030(4). Ky.
REV. STAT. ANN. § 532.030(1) (West 2011).
© 1 CoopER & CETRULO § 12.07.
312
In addition to stating clearly the punishments available under KRS 532.030(1), the sample
instruction also contains the caveat that the jury must find an “aggravating circumstance or
circumstances to be true beyond a reasonable doubt” in order to impose punishments (3) through
oo.” As the sample instruction states clearly the alternative punishments available for a capital
offense, as required by Commonwealth law, Kentucky complies with the first requirement of
Recommendation #4.
Parole and Parole Practices Testimony
In Perdue v. Commonwealth, the Kentucky Supreme Court held that “when the death penalty is
sought, evidence of minimum parole eligibility guidelines may not be introduced at all” and that
“(uJnder no circumstances should parole eligibility enter into death penalty deliberation.”**
In reaching its decision in Perdue, the Kentucky Supreme Court hypothesized that, in light of the
prosecutor’s “improper and erroneous” remarks concerning parole eligibility, “the jury [might
have] considered sentencing [the defendant] to a term of years, but felt that only a death sentence
would keep him off the street.”*° In other words, the Perdue Court’s reasoning rested on
concerns that parole eligibility evidence—even if accurate—might confuse jurors and thereby
lead them to err on the side of a more harsh penalty.
While the Court should be applauded for protecting against the possibility that jurors will
recommend a death sentence simply because they are provided information regarding parole
eligibility, depriving jurors of this information can just as readily produce the same outcome. In
Garland v. Commonwealth, for example, the jury submitted five questions to the trial court
during the capital sentencing phase, two of which read, “With life without parole, will [the
defendant] ever get out of jail?” and “Is there anyway [sic] we can keep [the defendant] in jail
until death, without the death penalty?”*° The Kentucky Supreme Court found that the trial
Sid.
4 Perdue v. Commonwealth, 916 S.W.2d 148, 163-64 (Ky. 1995) (emphasis added); Garland, 127 S.W.3d at 538.
Interestingly, this prohibition appears to contravene a straightforward reading of KRS 532.055, which applies in “all
felony cases” and permits prosecutors to offer evidence concerning “[m]inimum parole eligibility” in “a sentencing
hearing before the jury.” Ky. REv. STAT. ANN. § 532.055(1)-(2) (West 2011) (emphasis added); see also Ky. REV.
STAT. ANN. § 532.010 (classifying capital offenses as felonies). Furthermore, although the statute empowers only
the Commonwealth to introduce parole eligibility evidence in a truth-in-sentencing hearing, which is a hearing
mandated by KRS 532.055 meant to inform the sentencer of “matters that [may] be pertinent . . . in the assessment
of an appropriate penalty,” the Kentucky Supreme Court has held that “[t]he defense, as well as the prosecution, is
entitled to inform the jury concerning this issue.” Reneer, 734 S.W.2d at 797; Offutt v. Commonwealth, 799
S.W.2d 815, 817 (Ky. 1990) (citing Boone v. Commonwealth, 780 S.W.2d 615 (Ky. 1989)). While maintaining that
KRS 532.055 is the Commonwealth’s “non-capital felony sentencing statute,” the Kentucky Supreme Court also has
acknowledged that the statute’s truth-in-sentencing procedures must be followed in all felony cases, including
capital ones. St. Clair, 319 S.W.3d at 316; Perdue, 916 S.W.2d at 164. In a capital case, however, “the capital
penalty sentencing phase pursuant to KRS 532.025 should be conducted before the truth-in-sentencing hearing under
KRS 532.055(2),” and any testimony about parole and parole practices would be heard by the trial judge, the jury
having been discharged upon delivering its sentencing recommendation to court. See Perdue, 916 S.W.2d at 164;
Harris v. Commonwealth, 793 S.W.2d 802, 808 (Ky. 1990) (citing Skaggs v. Commonwealth, 694 S.W.2d 672, 679
(Ky. 1985), vacated in part, and on other grounds, by Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000)).
* "Perdue, 916 S.W.2d at 163.
*° Garland, 127 S.W.3d at 538.
313
court’s answering either question would be improper “in a death penalty hearing.”*” As is
evident by their questions, the jurors in Garland remained concerned that they might err on the
side of leniency, a concern that often pervades juror decision-making in capital cases.**
Because Kentucky does not permit evidence regarding parole practices to be admitted by the
defendant in order to correct jurors’ misconceptions regarding alternative punishments,
Kentucky does not comply with the second requirement of Recommendation #4.
The Commonwealth of Kentucky, therefore, only partially complies with this Recommendation.
E. Recommendation #5
Trial courts should not place limits on a juror’s ability to give full consideration to
any evidence that might serve as a basis for a sentence less than death.
During the penalty phase of a capital case Kentucky trial courts instruct jurors to consider “[a]ny
other circumstance or circumstances arising from the evidence which you, the jury, deem to have
mitigating value.”*’ This sample jury instruction, found in Cooper, further directs the jury to
“consider [] those aspects of the Defendant’s character, and those facts and circumstances of the
particular offense of which you have found him guilty, about which he has offered evidence in
mitigation of the penalty to be imposed upon him and which you believe from the evidence to be
true.”*? The Kentucky Supreme Court explicitly has sanctioned the instruction’s use of the
phrase “you, the jury,””! and it also has held that “[t]here is no requirement to enumerate each []
nonstatutory factor in detail.””
The Kentucky Supreme Court has maintained that this instruction on mitigating circumstances,
in conjunction with other instructions provided to the jury, suffices to inform “[e]ach individual
juror [that s/he is] free to examine and react to any mitigating factor when determining the
appropriate sentence.””* “TAJny juror who found any mitigating factor of sufficient relevance,”
the Court concluded, “could individually use that fact to prevent the jury from reaching a
unanimous sentence of death.”’* However, the results from the Capital Jury Project’s interviews
with Kentucky jurors who served in capital cases belies this assertion.» As mentioned in
Recommendation #1, 83.5% of interviewed Kentucky jurors failed to understand that they need
not be unanimous on mitigating evidence.”® Moreover, Commonwealth courts continue to reject
Id.
S§ See generally William J. Bowers & Margaret Vandiver, In Their Own Words: How Capital Jurors Explain
Their Life or Death Sentencing Decisions, Capital Jury Project Working Paper No. 6 (May 26, 1992) (unpublished).
8° 1 CoopER & CETRULO § 12.05.
° Id.
°! See Mills v. Commonwealth, 996 S.W.2d 473, 492 (Ky. 1999), overruled on other grounds by Padgett v.
Commonwealth, 312 S.W.3d 336, 349 (Ky. 2010); Tamme, 973 S.W.2d at 37.
Bowling v. Commonwealth, 873 S.W.2d 175, 180 (Ky. 1993).
93
Id.
“Id.
Bowers & Foglia, supra note 2, at 55, 72.
96
Id.
314
instructions, proposed by capital defendants, that might ameliorate this well documented
misconception on the part of jurors in capital cases.””
Furthermore, the Kentucky Supreme Court has held that “trial court[s] [are] correct [to] refus[e]
to instruct the jury that a preponderance of the evidence is the standard of proof for mitigating
circumstances,” reasoning that, as ““a jury is not required to make findings with regards to
mitigators, ... there is no need to define the standard of proof.” A need may be identified,
however, when looking to the Capital Jury Project’s findings: 61.8% of interviewed Kentucky
capital jurors “erroneously assumed” that “the defendant [had] to prove mitigation beyond a
reasonable doubt.””” The Kentucky Supreme Court also has held that jurors need not be
instructed “on ‘residual doubt’ as a mitigating factor”! and has signaled that a trial court should
not approve of an instruction mentioning residual doubt.'°' A refusal by the trial court to so
instruct a jury might well limit the weight the jury gives to this factor that could serve as a basis
for a sentence less than death.'°
While the Assessment Team commends the Commonwealth for including a catchall in its
mitigating circumstances instruction, Kentucky trial courts place limits on jurors’ ability to give
full consideration to evidence in support of a sentence less than death. Consequently, the
Commonwealth of Kentucky only partially complies with Recommendation #5.
F. Recommendation #6
Trial courts should instruct jurors that a juror may return a life sentence, even in
the absence of any mitigating factor and even where an aggravating factor has been
established beyond a reasonable doubt, if the juror does not believe that the
defendant should receive the death penalty.
In Meece v. Commonwealth, the Kentucky Supreme Court rejected a capital defendant’s claim of
error that “the jury should have been instructed that it could have returned a sentence of less than
death even if it found aggravators but did not find the existence of any mitigators.”'” The Court
reasoned, in reaching its conclusion, that “the instructions [provided to the jury] were adequate to
7 See, e.g., Meece, 348 S.W.3d at 719-21; Brief of Petitioner-Appellant at 120, Dunlap v. Commonwealth, No.
09-CR-00027 (Ky. Aug. 15, 2011) (on file with author) (asserting that “[t]he court did not use Dunlap’s tendered
instructions and its instructions do not define ‘mitigating circumstances’ or make clear what role such evidence
plays in a determination by the jury to decline to impose the death penalty”).
°S McKinney, 60 S.W.3d at 508 (quoting Tamme, 973 S.W.2d at 38).
®° Bowers & Foglia, supra note 2, at 68-69.
100 Tamme, 973 S.W.2d at 38 (citing Bussell v. Commonwealth, 882 S.W.2d 111, 115 (Ky. 1994)); Franklin v.
Lynaugh, 487 U.S. 164, 174 (1988); see also Epperson v. Commonwealth, 197 S.W.3d 46, 65 (Ky. 2006) (“The
United States Supreme Court and [the Kentucky Supreme] Court have held that residual doubt is not a mitigating
circumstance for the death penalty.”). “Residual doubt” alternatively has been described as “a lingering uncertainty
about facts, a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.””
Franklin, 487 U.S. at 188 (O’Connor, J., concurring).
1 Stark v. Commonwealth, No. 2008-SC-000660-MR, 2010 WL 252248, at *4 (Ky. Jan. 21, 2010).
1" See Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 CoLuM. L.
REV. 1538, 1563 (1998) (finding, from Capital Jury Project interviews with South Carolina jurors who had served in
capital trials, that “‘[rJesidual doubt’ over the defendant’s guilt [wa]s the most powerful ‘mitigating’ fact”).
"08" Meece, 348 S.W.3d at 722.
315
so apprise the jury." The Kentucky Supreme Court similarly held, in Skaggs v.
Commonwealth, that “[a] careful examination of the entire jury charge indicated that the jury
knew it could recommend a life sentence even if it found an aggravating circumstance beyond a
reasonable doubt.”'°” However, none of the six jury instructions at issue in Skaggs had made
explicit this prerogative. 106
Moreover, many Commonwealth trial courts do not appear, in their discretion, to instruct juries
in capital cases that a life sentence may be returned absent mitigating factors and despite finding
the existence of an aggravating factor beyond a reasonable doubt.'°” The absence of the use of
such a clarifying instruction in capital cases is notable considering that, in at least one non-
capital case, a comparable instruction was sanctioned at the request of a defendant convicted of
murder, sodomy, and robbery.’ In Edmonds v. Commonwealth, the jury was instructed as
follows:
You do not have to sentence the Defendant . . . to a term of imprisonment for life
without benefit of probation or parole until he has served a minimum of 25 years
of his sentence even if you find the aggravating circumstances stated in these
Instructions were proven beyond a reasonable doubt.'©
Given the higher stakes in cases for which the death penalty remains a sentencing option, the
absence of an instruction along similar lines is troubling.
Therefore, the Commonwealth of Kentucky is not in compliance with Recommendation #6.
G. Recommendation #7
In states where it is applicable, trial courts should make clear in juror instructions
that the weighing process for considering aggravating and mitigating factors should
not be conducted by determining whether there are a greater number of
aggravating factors than mitigating factors.
The Commonwealth of Kentucky has been described as a “threshold” jurisdiction: To
recommend a death sentence for a capital defendant, “jurors must find at least one aggravating
factor and must consider mitigating evidence. They are then free to decide whether a death
sentence is warranted without further guidance.”!'!® Indeed, the Kentucky Supreme Court has
104 Td. (citing Caudill v. Commonwealth, 120 $.W.3d 635, 674 (Ky. 2003)).
105 Skaggs, 694 S.W.2d at 679.
106 See Smith, 599 S.W.2d at 910-11. Although the Skaggs opinion does not quote directly the six instructions, the
opinion notes that “[t]he penalty phase instructions were essentially the same as those in Smith v. Commonwealth
..” Skaggs, 694 S.W.2d at 679.
See, e.g., Brief of Petitioner-Appellant at 117, Dunlap v. Commonwealth, No. 09-CR-00027 (Ky. Aug. 15,
2011) (on file with author) (“The court should have instructed the jury it could return a sentence of less than death
even if it found aggravators and did not find the existence of any mitigators.”).
108 Edmonds v. Commonwealth, Nos. 2007-SC-000350-MR, 2007-SC-000359-MR, 2009 WL 4263142, at *1, 18
(Ky. Nov. 25, 2009).
10°" Id. at *18 (emphasis omitted).
"Bowers & Foglia, supra note 2, at 67. See Ky. REV. STAT. ANN. § 532.025(3) (West 2011) (“The jury, if its
verdict be a recommendation of death ..., shall designate in writing ... the aggravating circumstance or
107
316
held that, “[uJnder KRS 532.025, a jury is not required to weigh mitigating factors against
aggravating factors.”''' In Thompson v. Commonwealth, the Court elaborated as follows:
[A] burden of proof instruction regarding the existence of aggravating
circumstances and that such factors must outweigh the mitigating factors is not
required under Kentucky law where the jury has been otherwise properly
instructed to weigh the evidence. An instruction requiring that the aggravators
outweigh the mitigators beyond a reasonable doubt is also not required under
Kentucky law.'”
Based on this reading of Commonwealth law, the Court explicitly has approved the following
jury instruction:
We, the jury, find beyond a reasonable doubt that the following aggravating
circumstance or circumstances exist in this case:
and we fix the Defendant’s punishment for the [Murder] [Kidnapping] of
(victim) at Ma
Furthermore, the Kentucky Supreme Court has not addressed whether the weighing process
involves no more than a comparison of the numbers of aggravating and mitigating factors. In
Meece v. Commonwealth, for example, the defendant “complain[ed] that the use of multiple
aggravators for each of the three murders create[d] a significant risk that the jury may give undue
weight to the mere number of aggravators found,”'™ and a similar objection was raised in
Furnish v. Commonwealth.''> In neither case, however, did the Court address defendants’
“undue weight to the mere number of aggravators” argument.
Because the Commonwealth does not require trial courts to guard against the possibility that
jurors will consider aggravating and mitigating factors merely by comparing the total numbers of
each factor, the Commonwealth is not in compliance with Recommendation #7.
circumstances which it found beyond a reasonable doubt.”). This “threshold” approach is in contrast with that taken
in “balancing” jurisdictions, wherein jurors explicitly are called upon to determine that aggravating factors outweigh
mitigating factors in recommending a death sentence. See, ¢.g., CAL. PENAL CODE § 190.3 (2011) (“[T]he trier of
fact ... shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh
the mitigating circumstances.”). See generally James R. Acker, Jr. & C.S. Lanier, In Fairness and Mercy: Statutory
Mitigating Factors in Capital Punishment Laws, 30 Crim. L. BULL. 299 (1994).
it Bowling v. Commonwealth, 942 S.W.2d 293, 308 (Ky. 1997) (citing Sanders v. Commonwealth, 801 S.W.2d
665, 681 (Ky. 1990)), overruled on other grounds by McQueen v. Commonwealth, 339 S.W.3d 441, 448 (Ky.
2011).
2 Thompson v. Commonwealth, 147 S.W.3d 22, 49-50 (Ky. 2004) (footnotes omitted) (emphasis added). See
also Skaggs, 694 S.W.2d at 679 (“There is no requirement that aggravating circumstances outweigh mitigating
circumstances beyond a reasonable doubt.”)
"3 See 1 COOPER & CETRULO § 12.10 (citing Caudill, 120 S.W.3d at 674-75).
"4" Meece, 348 S.W.3d at 721.
"5" See Furnish v. Commonwealth, 95 S.W.3d 34, 51 (Ky. 2002).
317
318
CHAPTER ELEVEN
JUDICIAL INDEPENDENCE
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
Our criminal justice system relies on the independence of the judicial branch to ensure that
judges decide cases to the best of their abilities without political or other bias and
notwithstanding official and public pressure. However, judicial independence is increasingly
being undermined by judicial elections, appointments, and confirmation proceedings that are
affected by nominees’ or candidates’ purported views on the death penalty or by judges’
decisions in capital cases.
During judicial election campaigns, voters often expect candidates to assure them that they will
be “tough on crime,” that they will impose the death penalty whenever possible, and that, if they
are or are to be appellate judges, they will uphold death sentences. In retention campaigns,
judges are asked to defend decisions in capital cases. Sometimes these judges are defeated
because their decisions are unpopular, even where these decisions are reasonable, are binding
applications of the law, or reflect the predominant view of the Constitution. Prospective and
actual nominees for judicial appointments often are subjected to scrutiny on these same bases.
Generally, when this occurs, the discourse is not about the constitutional doctrine in the case but
rather about the specifics of the crime.
All of this increases the possibility that judges will decide cases not on the basis of their best
understanding of the law but rather on the basis of how their decisions might affect their careers.
This also makes it less likely that judges will be vigilant against prosecutorial misconduct and
incompetent representation by defense counsel. For these reasons, judges must be cognizant of
their obligation to take corrective measures both to remedy the harms of prosecutorial
misconduct and defense counsel incompetence and to prevent such harms in the future.
319
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
A. Selection of J udicial Candidates and J udges
When Kentucky became the fifteenth state in 1792, its constitution conferred the power of
judicial appointment on the Govemor and provided for judicial offices with indefinite tenure.'
In 1850, the Commonwealth amended the constitution to require judges to be selected through
popular elections to finite terms.” In 1975, the Kentucky General Assembly adopted a
constitutional amendment, known as the “Judicial Article,” which created a unified judicial
system composed of a Supreme Court, a Court of Appeals, trial courts of general jurisdiction
known as circuit courts, and trial courts of limited jurisdiction known as district courts.?
1. Judicial Elections in the Commonwealth
Since 1975, all judges in the Commonwealth have been selected in nonpartisan elections.’
Kentucky Supreme Court justices, Court of Appeals judges, and circuit court judges are eligible
for reelection after eight-year terms, and district court judges stand for reelection after four-year
tems.°
A judicial candidate seeking election to the Kentucky Supreme Court, Court of Appeals, or any
circuit court must be a U.S. citizen, a resident of both the Commonwealth and the circuit from
which s/he is elected for at least two years preceding his/her taking office, licensed to practice
law in the Commonwealth, and a licensed attomey for at least eight years.°
Each judicial candidate must submit a nomination petition to Kentucky’s Secretary of State, who
certifies the eligibility of all judicial candidates and designates which, and in what order,
candidates appear on ballots.’ The clerks of each circuit court or district court then hold
primary elections for every judicial seat, without including party identifiers and positioning
names on ballots as specified by the Secretary of State.® The two candidates who receive the
most votes during the primary are then certified and listed on the ballot in the general election,
also without any party identifiers.°
Ky. Const. art. 2, § 8 (1792); Ky. Const. art. 5, § 2 (1792).
Ky. Const. art. 4, §§ 4, 6 (1850).
Ky. Const. § 109.
Ky. Const. § 117 (1976); Ky. Rev. STAT. ANN. § 118A.060 (West 2011) (“No party designation or emblem of
any kind, nor any sign indicating any candidate's political belief or party affiliation, shall be used on voting
machines or special ballots.”).
5 Ky. Const. § 119; Candidate Qualifications, Filing Officer and Filing Fees, Ky. STATE BD. OF ELECTIONS,
http://www.elect.ky.gov/candidate.htm (last visited Nov. 12, 2011).
8 Ky. Const. § 122. Candidates for Commonwealth district courts must be U.S. citizens, a resident of the district
for two years, and licensed to practice law for two years. Id.
7 Ky. Rev. STAT. ANN. § 118A..090(2)-(3), (5) (West 2011).
8 Ky. Rev. STAT. ANN. § 118A.060 (West 2011); Carey v. Wolnitzek, 614 F.3d 189, 194 (6th Cir. 2010). There
are seven electoral districts for the Justices of the Kentucky Supreme Court and judges of the Court of Appeals,
fifty-seven electoral districts for elections for circuit court judges, and sixty electoral districts for district court
judges. Ky. REV. STAT. ANN. §§ 21A.010, 22A.010, 23A.020, 24A .030 (West 2011).
Ky. REV. STAT. ANN. § 118A.060 (West 2011).
320
The Kentucky General Assembly oversees the election process and further possesses the
authority to restructure judicial districts and to change the number of Court of Appeals and
circuit court judges, upon certification of such a necessity by the Kentucky Supreme Court.'°
2. Judicial Appointments in the Commonwealth
All judicial offices in the Commonwealth are held by elected judges. However, if an interim
judicial vacancy arises in any Commonwealth court, the Governor may appoint a replacement
from a list of three candidates selected and screened by the appropriate judicial nominating
commission (JNC).'' Kentucky currently has sixty-one JNCs: one for the Kentucky Supreme
Court and Court of Appeals, one for each judicial circuit, and one for each judicial district,
although each circuit and district with the same boundary has only one JNC."? Each JNC
comprises seven members, one of whom i is the Chief Justice of the Kentucky Supreme Court,
who serves as chair of each commission.'? Two members are attomeys “elected by all attorneys
in the vacancy’s jurisdiction,” and the four remaining members are non-attorney Kentucky
citizens appointed by the Governor who must equally represent the two major political parties.’
Each JNC member other than the Chief Justice serves renewable four-year terms.'° In addition,
each member of a judicial circuit or district nominating commission must reside in the district or
circuit s/he represents | and may not hold “any other public office or any office in a political
organization or party.”
Upon a judicial vacancy, the executive secretary of the JNC notifies the public and all attorneys
in the judicial circuit or district.'’ Attorneys may nominate themselves or someone else by
completing an application and retuming it to the executive secretary.'* Of these names, the
Chief Justice and other members of the nominating committee select candidates to forward to the
Goveror.'®
10 Ky. Consr. §§ 110(4), 111(1), 112(3). The General Assembly may also “reduce, increase or rearrange the
judicial districts” that structure the jurisdiction of Kentucky circuit courts, upon certification by the Kentucky
Supreme Court that such changes are necessary. Ky. ConsT. §112(2).
1” Ky. Const. § 118(1). If the Governor fails to make an appointment from the list within sixty days from the
date it is presented to him, the appointment shall be made from the same list by the chief justice of the Court. Id.
See also Ky. REV. STAT. ANN. §§ 61.710-61.780 (West 2011).
2 Ky. Const. § 118(2); Composition of the Judicial Nominating Commissions, Ky. Ct. OF JUSTICE,
http://courts.ky.gov/jnc/#comp (last visited Apr. 12, 2011).
3" Ky. Const. § 118(2); Composition of the Judicial Nominating Commissions, Ky. Ct. OF JUSTICE,
http://courts.ky.gov/jnc/#comp (last visited Apr. 12, 2011).
“4” Ky. Const. § 118(2); Ky. Rev. STAT. ANN. § 34.010(1) (West 2011); Composition of the Judicial Nominating
Commissions, Ky. COURT OF JUSTICE, http://courts.ky.gov/jnc/#comp (last visited Apr. 12, 2011).
15 Ky, REV. STAT. ANN. § 34.010(1) (West 2011); Composition of the Judicial Nominating Commissions, Ky. CT.
OF JUSTICE, http://courts.ky.gov/jnc/#comp (last visited Apr. 12, 2011) (“Members are not compensated for their
services, but are reimbursed for expenses for the days they perform their duties.”).
'6 Ky. Const. § 118(2).
7 Judicial Nominating Commission— Application Process, Ky. CT. oF JUSTICE, http://courts.ky.gov/jnc/#app (last
visited May 5, 2011).
‘8 Ky. REV. STAT. ANN. 61.740 (West 2011).
‘8 Composition of the Judicial Nominating Commissions, Ky. Cr. oF Justice, http://courts.ky.gov/jnc/#comp (last
visited Apr. 12, 2011) (“The names of the three nominees are listed in alphabetical order without indicating the
commission’ s preference.”).
321
Judicial appointments last for the remainder of an unexpired term if the term ends at the next
annual election.”° If the unexpired term does not end at the next scheduled election, and the next
election is more than three months away, the appointment also lasts until the next annual
election.”’ However, if the next election is less than three months away, the appointment lasts
until the second succeeding annual election.” If the Govemor does not appoint one of the three
candidates within sixty days of Teceiving | the list, then the Chief Justice of the Supreme Court
must appoint someone from the same list.”?
B. Conduct of Judicial Candidates and Judges
1. Requisite Conduct of Judicial Candidates During Campaigns Elections
Kentucky’s Code of Judicial Conduct (Code) is a set of standards for the ethical conduct of
judges and judicial candidates promulgated by the Kentucky Supreme Court and enforced by the
Kentucky Judicial Conduct Commission (Commission),”* by which all judges must abide.”
Canon 5 of the Code, applicable to both judges and judicial candidates, broadly provides that a
“judicial candidate shall refrain from inappropriate political activity” and requires all judicial
candidates and incumbent judges to maintain a certain standard of conduct during their
campaigns.”° Specifically, Canon 5A prohibits any judicial candidate from
(a) acting as a leader or holding any office in a political organization;
(b) making speeches for or against a political organization or candidate or
publicly endorsing or opposing a candidate for public office;
(c) soliciting funds for or pay an assessment or making a contribution to a
political organization or candidate;”” and
(d) engaging in any “political activity[,] except on behalf of measures to improve
the law, the legal system, or the administration of justice.””°
Previously, Canon 5A(2)’s “party affiliation clause” prohibited a judicial candidate from
identifying “as a member of a [particular] political party in any form of advertising, or when
speaking to a gathering,” except in answer to a direct question not initiated by the candidate.”°
The Code’s “solicitation clause” also prohibited judicial candidates from personally soliciting
campaign funds.°° However, in 2010, the U.S. Court of Appeals for the Sixth Circuit invalidated
both the party affiliation and solicitation clause as violative of the First Amendment.” Still, the
20 Ky. Const. § 152.
2 Id
2 Id
3 Id.
24 The Kentucky Code of Judicial Conduct is found at Kentucky Supreme Court Rule 4.300. SCR 4.300, Canon 5.
5 SCR 4.300, Canon 5. Sitting judges for reelection are also required to adhere to the standards of conduct
described i in this Section. Id.
® SCR 3.130(8.2), 4.300, Canon 5.
27 SCR 3.130(8.2), 4.300, Canon 5A(1).
8 SCR 3.130(8.2), 4.300, Canon 5A (4).
*° SCR 4.300, Canon 5A (2).
SCR 4.300, Canon 5B(2). See also Ky. REV. STAT. ANN. § 121.150 (West 2011).
ok Carey, 614 F.3d at 189.
322
use of campaign contributions for the private benefit of the candidate and/or the candidate’s
family is strictly prohibited.”
In addition, Canon 5B(1) mandates that all candidates for judicial office, including incumbent
judges, must
(a) maintain the dignity appropriate to judicial office, and encourage members of
his/her family to adhere to the same standards of political conduct;
(b) prohibit public officials and employees subject to the candidate’s direction
and control, and any other person, from doing for the candidate what the
candidate is prohibited from doing under the sections of this Canon;
(c) not intentionally or recklessly make a statement that a reasonable person
would perceive as committing the judge or candidate to mule a certain way on
acase, controversy, or issue that is likely to come before the court; 33 and
(d) not misrepresent any candidate's identity, qualifications, present position, or
other facts.**
Furthermore, “[w]here false information concerning a judicial candidate is made public, a judge
or candidate having knowledge of the facts is not prohibited by Section 5A(1) from making the
facts public.”*°
2. Conduct of Sitting Judges
The Code further contains a number of standards of conduct to which active judges are required
to adhere. This discussion, however, will focus on the standards of conduct pertaining to three
issues: (1) judicial impartiality, (2) public commentary on cases, and (3) the conduct of
prosecutors and defense attorneys.
a. Judicial Impartiality
The Code mandates that Commonwealth judges “should actively participate in establishing,
maintaining, and enforcing high standards of conduct” and are required to “personally observe
those standards so that the integrity and independence of the judiciary will be observed.”*°
Specifically, judges are required to be “faithful to the law” and “not be swayed by partisan
interests, public clamor{,] or fear of criticism.”*” Judges are also required to perform their
judicial duties “without bias or prejudice,” and a judge must disqualify him/herself if the judge’s
“impartiality might reasonably be questioned” in a proceeding.**
® SCR 4.300, Canon 5B(2).
3 SCR 4.300, Canon 5B(1)(c), In Carey v. Wolnitznek, the Sixth Circuit remanded the case in order for the lower
court to determine the scope of the commits clause prohibition on judicial candidates’ statements on an “issue that is
likely to come before the court”). Carey, 614 F.3d at 207-10 (quoting SCR 4.300, Canon 5B(1)(c)).
* SCR 4.300, Canon 5B(1).
35 SCR 4.300, Canon 5A(1) cmt.
3° SCR 4.300, Canon 1 cmt.
SCR 4,300, Canon 3B(2).
* SCR 4.300, Canon 3B(5) & cmt, 3E.
323
In addition, the Code mandates that a “judge shall not hold membership in any organization that
practices invidious discrimination on the basis of race, sex, religion or national origin[,]” noting
that “public manifestation by a judge of the judge’s knowing approval of invidious
discrimination on any basis . . . diminishes public confidence in the integrity and impartiality of
the judiciary.”
The statute also requires Kentucky judges to recuse themselves from legal proceedings where
they have “a personal bias or prejudice concerning a party,” “personal knowledge of disputed
evidentiary facts conceming the proceedings,” or “knowledge of any other circumstances [such
that their] impartiality might reasonably be questioned.”*” Judges also must recuse themselves if
they have “expressed an opinion conceming the merits of the proceeding.” *!
b. Public Commentary on Cases
While a proceeding is pending or impending in any court, including on direct appeal, the Code
requires judges to refrain from making “any public comment that might reasonably be expected
to affect [the proceeding’s] outcome or impair its faimess or [from] mak[ing] any nonpublic
comment that might substantially interfere with a fair trial or hearing”.’” Canon 3B(9) notes that
this section “does not prohibit judges from making public statements in the course of their
official duties or from explaining for public information the procedures of the court . . . [nor does
it] apply to proceedings in which the judge is a litigant in a personal capacity.”“* In cases where
“the judge is a litigant in an official capacity, the judge must not comment publicly.”“*
The Code also includes a “commits clause” in Canon 5B(1), which states that a judge or judicial
candidate “shall not intentionally or recklessly make a statement that a reasonable person would
perceive as committing the judge or candidate to rule a certain way on a case, controversy, or
issue that is likely to come before the court.”*° Although the U.S. Court of Appeals for the Sixth
Circuit recently upheld the “case” and “controversy” parts of the clause in a facial challenge to
its constitutionality,*° the Court remanded the case for further consideration of the meaning and
validity of the clause’s prohibition on candidates making a statement on an “issue” likely to
come before the court.”
Furthermore, Canon 5A(3) requires that a judge “resign office when the judge becomes a
candidate either in a party primary or in a general election for a non-judicial office, except that
39 SCR 4.300, Canon 2E & cmt.
40 Ky. Rev. STAT. ANN. § 26A.015(2)(a), (e) (West 2011) (listing other reasons a judge must disqualify
him/herself).
a id.
#2 SCR 4.300, Canon 3B(9) & cmt.
8 SCR 4.300, Canon 3B(9).
“4 SCR 4.300, Canon 3B(9) cmt.
‘5 SCR 4.300, Canon 5B(1)(c); Carey, 614 F.3d at 207-10.
° Carey, 614 F.3d at 207.
“7 Td. at 207-09.
324
the judge may continue to hold judicial office while being a candidate for election to or serving
as a delegate in a state constitutional convention, if otherwise permitted by law.”*°
c. Conduct of Judicial Officers, Prosecutors, and Defense A ttomeys
The Code provides that a judge who receives information indicating a substantial likelihood that
another judge has committed a violation of this Code or that a lawyer has committed a violation
of the Kentucky Rules of Professional Conduct “should take appropriate action.”*° Such action
“may include direct communication with the judge or lawyer who has committed the violation,
other direct action if available, and reporting the violation to the appropriate authority or other
agency or body.”®? A judge is obligated to report the violation to the appropriate authority if the
violation “raises a substantial question as to the other judge’s fitness for office” or “raises a
substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects.”*! The KRS also mandates that any Commonwealth judge report to the appropriate
authority when it comes to his/her attention that another Kentucky judicial officer “may have
been guilty of unprofessional conduct.”
3. Complaints and Disciplinary Action Against Judges and Judicial Candidates
Kentucky’s judges may be removed from office by the Kentucky Judicial Conduct Commission
or through impeachment by the Kentucky General Assembly.
a. Kentucky Judicial Conduct Commission
The Commission, “a constitutionally mandated state body subject to judicial review by the
Kentucky Supreme Court,” enforces the Code.*? The Commission was created to investigate,
review complaints, hold hearings, and, when warranted, remedy complaints against all
Commonwealth judges and judicial candidates.“* The Commission is authorized to discipline
judicial candidates and Commonwealth judges who violate the Code and to refer them to the
Kentucky Bar Association (KBA) for possible suspension or disbarment.°> The Commission is
48 SCR 4.300, Canon 5A(3). The Kentucky Constitution forbids any Commonwealth judge from “engagling] in
the practice of law, or run[ning] for elective office other than judicial office, or hold[ing] any office in a political
party or organization.” Ky. Const. § 123.
® “SCR 4.300, Canon 3D(1)-(2).
SCR 4.300, Canon 3D cmt. “A judge acting in good faith in the discharge of disciplinary responsibilities
required or permitted by Sections 3D(1) and 3D(2) shall be immune from any action, civil or criminal.” SCR
3.130(8.2); 4.300, Canon 3D(3).
5! SCR 4.300, Canon 3D(1)-(2).
52 Ky. REV. STAT. ANN. § 264.080 (West 2011).
53 Ky. Const. § 121; Ky. Sup. Ct. Order 98-2 (changing the name of the Judicial Retirement and Removal
Commission to the Judicial Conduct Commission).
54 Ky. Const. § 121; Ky. REV. STAT. ANN. § 34.330 (West 2011); SCR 4.000; Judicial Conduct Commission, Ky.
CT. OF JUSTICE, http://courts.ky.gov/jcc/ (last visited Nov. 13, 2011).
58 Ky. Const. § 121; SCR 4.020. The Commission is the only Commonwealth entity authorized by the Kentucky
Constitution to take disciplinary action against a sitting Commonwealth judge. Judicial Conduct Commission, Ky.
Cr. OF JUSTICE, http://courts.ky.gov/jcc/ (last visited Nov. 13, 2011) (noting that the “Commission functions under
tules established by the Supreme Court of Kentucky and has authority over judges, trial commissioners, domestic
relations commissioners, master commissioners and attorneys who are candidates for judicial office.”).
50
325
comprised of six voting members who serve four-year, renewable terms. Commission
members include one representative and one altemate from both district courts and circuit courts,
selected by a majority vote of district and circuit judges; a representative from the Kentucky
Court of Appeals, selected by that court; one attorney appointed by the KBA; and two citizens
appointed by the Govemor who are neither judges nor attomeys.””
Complaints against Commonwealth judges may be filed by any person or group with knowledge
of alleged judicial misconduct or wrongdoing.”® The formal complaint requests the complainant
to list his/her contact information, the judge’s identifying information, the relevant case name
and docket number, attorneys involved in the relevant case, and specific facts outlining the
allegations.°*? The Commission initially reviews the complaint and will dismiss it if it is not
within the Commission’ s jurisdiction.”
If there is “probable cause for action concerning a judge,” the Commission will initiate a
preliminary, confidential investigation and meet with the accused judge.®' The Commission
must decide whether to initiate “formal proceedings” within 180 days of commencement of the
preliminary investigation.” If formal proceedings are initiated, the judge will be provided public
notice of the charges and offered an opportunity to respond at a formal hearing, unless the judge
concedes to the charges in exchange for a stated sanction.*? Once an answer to the notice of
formal proceedings is filed or the time to file an answer expires, the notice and all subsequent
pleadings filed with the Commission are no longer confidential.’ However, the Commission's
internal deliberations and internal papers “shall remain confidential and shall not be a part of the
formal file.”® At a formal Commission hearing, the judge may be represented by an attomey
and the Commission’s attorneys will present its case, which it must prove by “clear and
convincing evidence.” At the conclusion of the hearing, the Commission will make written
56 Ky. Rev. STAT. ANN. § 34.010(1)-(4) (West 2011); Judicial Conduct Commission, Ky. Cr. OF JUSTICE,
http://courts.ky.gov/jcc (last visited Nov. 13, 2011).
oF Judicial Conduct Commission, Ky. Ct. OF JUSTICE, http://courts.ky.gov/jcc/ (last visited Nov. 13, 2011).
“Members of the Judicial Retirement and Removal Commission who do not otherwise receive a salary from the
State Treasury shall receive sixty dollars ($60) for each day they are in session or on official duty.” Ky. REV. STAT.
ANN. § 34.320 (West 2011).
58 Judicial Conduct Commission, Ky. CT. OF JUSTICE, http://courts.ky.gov/jcc/ (last visited Nov. 13, 2011) (noting
that the “Commission has received complaints from litigants, attomeys, judges, jurors, citizens, court personnel and
prisoners”).
Ky. JUDICIAL ConDUCT CoMM’N, COMPLAINT, available at http://courts.ky.gov/NR/rdonlyres/5411B29D-
C086-48D D-B994-ED1F78A 03D0E/0/JCC_ComplaintForm.pdf.
50 SCR 4.170(3); Judicial Conduct Commission, Ky. CT. OF JUSTICE, http://courts.ky.gov/jcc/ (last visited Nov.
13, 2011).
51 SCR 4.170(1); Judicial Conduct Commission, Ky. CT. OF JUSTICE, http://courts.ky.gov/jcc/ (last visited Nov.
13, 2011).
® SCR 4.170(5).
® Ky. Const. § 121; SCR 4.180.
51 SCR 4.130(2) (an answer to the notice must be filed within fifteen days), 4.170.
65 SCR 4.130(1)-(2). Prior to the adoption of SCR 4.130 in 1999, the public did not have access to information
about complaints and proceedings handled by the Commission unless and until the Commission issued a sanction
upon ajudge. Mark R. Chellgren, Analysis J udge’s Case Points Up Need to Lift Veil of Secrecy, CINCINNATI POST,
Nov. 1, 1995, at 4K; Ky. Sup. Ct. Order 98-2.
SCR 4.130, 4.160, 4.210 (procedural rights of judges), 4.220; Judicial Conduct Commission, Ky. CT. OF
Justice, http://courts.ky.gov/jcc/ (last visited Nov. 13, 2011) (Additionally, the “complainant may be subpoenaed to
testify at the hearing if [s/he] has personal knowledge of any wrongdoing.”)
326
findings of fact and conclusions of law, and the complainant will be notified as to what action
will be taken.°” Upon request, the Commission may make available to the “Kentucky Bar
Association any of the Commission’s records pertinent to a disciplinary matter or inquiry under
investigation by the Commission or by the Association.”
Violations of the Code include (a) misconduct in office, (b) persistent failure to perform duties,
(c) incompetence, (d) habitual intemperance, (e) violations of the Code, Rule 4.300, (f) willful
refusal or persistent failure to conform to official policies and directives adopted by the
Kentucky Supreme Court, or (g) conviction of a crime punishable as a felony.®? Upon a majority
vote, the Commission may issue a private reprimand, a public censure, removal from office, ora
referral to the KBA for disbarment from the practice of law.” Disciplinary action taken by the
Commission is subject to review by the Court.”
The Commission is not empowered to review or change a judicial decision, and filing a
complaint with the Commission will not allow a party to side-step the formal recusal process for
ajudge.
Commonwealth judges also may be removed from office after impeachment by the Kentucky
House of Representatives and conviction by a two-thirds vote of the Kentucky Senate.” The
KBA has the power to discipline attorneys, and may “conduct hearings, administer necessary
oaths, take testimony under oath, compel the attendance of witnesses, and compel the production
of records and other evidence.””*
b. Judicial Ethics Committee
Kentucky’s Judicial Ethics Committee (Committee) “serves in an advisory capacity by giving
judges and judicial candidates guidance on prospective conduct... regarding a variety of
matters, including permissible campaign conduct, when disqualification from a case is necessary,
and other possible conflicts of interest in financial and personal matters.”” The Committee
issues formal and informal opinions, all of which are “advisory only.””® However, when
87 SCR 4.260; Judicial Conduct Commission, Ky. CT. oF JUSTICE, http://courts.ky.gov/jcc/ (last visited Nov. 13,
2011). “Upon making a determination ordering the censure, suspension, retirement or removal of a judge, the
commission shall promptly file a copy of the order certified by the chairman or secretary of the commission,
together with the findings and conclusions and the record of the proceedings, in a permanent file.” SCR 4.280.
68" SCR 4.130(3) (noting that the Commission may on its own initiative or upon request of the director or Board of
Governors of the Kentucky Bar Association, provide such materials).
® SCR 4.020(1)(b).
7 Ky. Const. § 121; SCR 4.020(1)(b); Ky. REV. STAT. ANN. § 34.340 (West 2011); Carey, 614 F.3d at 189.
7| Ky. Const. § 121; SCR 4.290.
™ Judicial Conduct Commission, Ky. CT. oF JUSTICE, http://courts.ky.gov/jcc/ (last visited Nov. 13, 2011); Ky.
REV. STAT. ANN. § 26A.015(2)(a), (e) (West 2011) (recusal).
3 Ky. Const. §§ 66-67, 68 (Governor and all civil officers are impeachable); Ky. Rev. STAT. ANN. §§ 63.020,
63.030 (West 2011).
™ Ky. REV. STAT. ANN. § 214.150 (West 2011); Ky. ConsT. § 116.
75 Press Release, State Judicial Ethics Committee elects new chair, fills 2 vacancies on committee, Ky. CT. OF
Justice (Feb. 7, 2006), available at http://courts.ky.gov/NR/rdonlyres/6A 16EA D6-2D2C-4C1C-A6A8-
93FA 8F579F05/0/JudicialEthicsC ommitteeNewChairM embers020706.pdf; SCR 4.310.
7 SCR 4.310(3); Press Release, State Judicial Ethics Committee elects new chair, fills 2 vacancies on committee,
Ky. CT. OF JUSTICE (Feb. 7, 2006), available at http://courts.ky.gov/NR/rdonlyres/6A 16EA D6-2D2C-4C1C-A6A8-
327
deciding whether a violation of the Code occurred, the Judicial Conduct Commission and the
Kentucky Supreme Court “shall consider reliance by a justice, judge, trial commissioner or by
any judicial candidate upon the ethics committee opinion’.”” The Committee is composed of
three judges elected by their peers at the Court of Appeals, circuit courts, and district courts, and
two attomeys appointed by the KBA’s Board of Govemors, all of whom serve four-year terms.”
The Committee elects its own chair and is supported administratively by a staff attomey who
acts as executive secretary of the Committee.”°
C. Training for Judges Who Handle Capital Cases
New Commonwealth circuit and district judges participate in a four-day orientation program
offered by the Kentucky Administrative Office of the Courts (AOC), which is conducted by
experienced judges and AOC staff.*” The AOC is the administrative arm of the Kentucky Court
of Justice and supports the activities of approximately 3,700 court personnel, including the
elected offices of justices, judges and circuit court clerks. i At the orientation program, new
circuit >sfourt judges who preside over capital trials receive training on criminal and capital
issues. The AOC’s Office for Judicial Branch Education provides ongoing training and
education to Kentucky judges, including sponsoring an annual Circuit Judges Fall Conference.®
Additionally, pursuant to Commonwealth law, the Kentucky Supreme Court provides
multidisciplinary in- service training for circuit and district judges on a variety of issues relevant
to their court jurisdiction."
93FA 8F579F05/0/JudicialEthicsCommitteeNewChairMembers020706.pdf. Formal opinions are issued for matters
of statewide importance. SCR 4.310(2).
7 SCR 4.310(3).
7 SCR 4.310(1) (also noting that no member ay also be a member of the Judicial Conduct Commission).
79 Press Release, State Judicial Ethics Committee elects new chair, fills 2 vacancies on committee, Ky. CT. OF
Justice (Feb. 7, 2006), available at http://courts.ky.gov/NR/rdonlyres/6A 16EA D6-2D2C-4C1C-A6A8-
93FA 8F579F05/0/JudicialEthicsCommitteeNewChairM embers020706.pdf.
50 Press Release, 44 judges participate in orientation program for new Kentucky judges, Ky. CT. OF JUSTICE (Mar.
1, 2010), http://migration.kentucky.gov/newsroom/kycourts/03172010JB1.htm (last visited Nov. 20, 2011).
Id.
8 Id. (noting that “Circuit judges leamed about civil proceedings, jury management, discovery, summary
pigment criminal issues and capital trials.”).
a see Ky. REV. STAT. ANN. §§ 214.170, 214.180 (West 2011).
328
II, ANALYSIS
A. Recommendation #1
States should examine the fairness of their processes for the appointment/election of
judges and should educate the public about the importance of judicial independence
to the fair administration of justice and the effect of unfair practices in
compromising the independence of the judiciary.
udicial Elections
The Commonwealth maintains a “non-partisan” judicial election system for the Kentucky
Supreme Court, Court of Appeals, circuit courts and district courts.®° | Gubematorial
appointments are made for interim judicial vacancies, which last only until the next election
cycle, or in some circumstances, the second election cycle.®* Circuit court judges and Kentucky
Supreme Court Justices—who hold primary responsibility in death penalty cases— must
participate in general elections to obtain and/or retain office.”
As “[aln independent and honorable judiciary is indispensable to justice in our society,”®
organizations within the Commonwealth have sought to examine the fairness of the judicial
election process and, in specific cases, to educate the public about the importance of judicial
independence. For example, in 2005 the Kentucky Judicial Campaign Conduct Committee
(KJCCC) was established as a committee of twenty-one bar association and other community
leaders to examine judicial campaign conduct in the 2006 election year in which all but two of
the state’s 266 judicial seats would be up for election.” The KJCCC’s stated goals are “to
educate the public about the important differences between judicial campaigns and campaigns
85 Ky. Const. art. 4, §§ 4, 6 (1850); Ky. Consr. § 117 (1976). See also Ky. Const. § 109.
5° Ky. Const. §§ 118, 152.
Ky. Const. § 118. In Carey v. Wolnitzek, the Appendix described judicial selection processes in the U.S. as
follows: Seven states elect their judiciaries in partisan elections: Alabama, Illinois, Louisiana, New Mexico,
Pennsylvania, Texas, West Virginia; two states, Michigan and Ohio, have partisan nominations with nonpartisan
elections; thirteen states, Arkansas, Georgia, Idaho, Minnesota, Mississippi, Montana, Nevada, North Carolina,
North Dakota, Oregon, Washington, Wisconsin, including Kentucky, elect the judiciary in nonpartisan elections;
fifteen states have a retention election system, Alaska, Arizona, California, Florida, Indiana, Iowa, Kansas,
Maryland, Missouri, Nebraska, Oklahoma, South Dakota, Tennessee, Utah, Wyoming; two states, South Carolina
and Virginia, have a legislative election system; and ten states have a system of gubematorial appointment with or
without confirmation, including Connecticut, Delaware, Hawaii, Maine, Massachusetts, New Hampshire, New
Jersey, New Y ork, Rhode Island, Vermont. See Carey, 614 F.3d at 211 app. A.
88 SCR 4.300, Canon 1 cmt. Recently, the Sixth Circuit, in Carey v. Wolnitzek, adopted the central premise of
Kentucky’s judicial canons, that “[jJudicial elections differ from legislative elections, and the Kentucky Supreme
Court has a compelling interest in regulating judicial campaign speech to ensure the reality and appearance of an
impartial judiciary.” Carey, 614 F.3d at 194.
8° CHIEF JUSTICE LAMBERT ANNOUNCES MEMBERS OF FIRST JUDICIAL CAMPAIGN CONDUCT COMMITTEE IN
KENTUCKY, Sup. CT. oF Ky. (July 25, 2005), available at http://courts.ky.gov/NR/rdonlyres/1CBC1F4E-74A8-
4BB3-895F-4347E5BD9732/0/JCC07252005.pdf. The Committee was created shortly after the Family Trust
Foundation of Lexington filed suit against the Kentucky Bar Association challenging Kentucky’ s judicial rules that
prohibits candidates from making statements on controversial issues to come before the court. Beth Musgrave,
Judicial Hopefuls’ Speech Limitations Could Be Loosened, LEXINGTON HERALD-LEADER, Feb. 4, 2005, at Al (on
file with author); Jack Brammer, Justice Sets Up Panel to Monitor Campaigns; Will Guide Ethics of Judicial
Candidates, LEXINGTON HERALD-LEADER, July 8, 2005, at A1.
329
for partisan political office, to help candidates campaign in an ethical and dignified manner, to
monitor advertising to detect and deter improper campaigning, and to investigate complaints
about unfair campaign tactics and issue public statements about such tactics.”*’ The KJCCC
investigates complaints about judicial campaigning and issues opinions regarding the
appropriateness of investigated judicial campaign conduct.’ The KJCCC is not financially
supported by the Commonwealth, nor is it affiliated with the Kentucky Supreme Court,
Kentucky Bar Association (KBA), or any other official entity, and its opinions are advisory and
have no formal legal authority.°”
Importantly, the KJCCC also provides additional guidance, similar to Kentucky's Ethics
Committee,” to the Commonwealth’s judicial candidates and judges running for reelection.”
For example, following a federal court’s invalidation of provisions of the Kentucky Code of
Judicial Conduct (Code) that had prohibited solicitation of campaign funds and pronouncement
of party affiliation by judicial candidates,®° the KJCCC cautioned that
judicial candidates should refrain from making statements about issues that might
come before them. Judicial races are not like races for the executive or legislative
branches.... In judicial races... candidates should only promise to fairly
interpret and apply the law and the U.S. and Kentucky constitutions, to treat all
litigants fairly and with dignity, and to approach every case with an open mind
and without pre-judgment.
The KJCCC also recently issued a statement in which it counseled judicial candidates who speak
out on issues to remind voters not only of a judge’s obligation to ensure impartiality and
independence, but also that a judge “who appears to promise how he or she will decide an issue
has an obligation to let another judge handle the case if the issue arises in the judge’s court.”*”
% Judicial Campaigns and Elections: Kentucky, AM. JUDICATURE Soc’y,
http://www judicialselection.us/judicial_selection/campaigns_and_elections/campaign_oversight.cfm?state=KY
(last visited Nov. 21, 2011); KY. JUDICIAL CAMPAIGN CONDUCT CoMM., http://www.loubar.org/jccc/kjccchome.htm
(last visited Nov. 21, 2011).
Ky. JUDICIAL CAMPAIGN CONDUCT ComM., http://www.loubar.org/jccc/kjccchome.htm (last visited Nov. 21,
2011). KJCCC “took the position that even though White allows judicial candidates to campaign on disputed social,
political, and legal issues, candidates who do so are likely to compromise their independence.” Al Cross & William
H. Fortune, Kentucky 2006 Judicial Elections, 55 DRAKE L. R. 637, 644 (2007) (noting the KJCCC is supported by
private contributions), citing Republican Party of Minnesota v. White, 536 U.S. 765, 774 (2002).
2 Cross, supra note 91, at 642.
53 See supra notes 75-79 and accompanying text (describing the Kentucky Judicial Ethics Committee).
% Ky. JUDICIAL CAMPAIGN CoNDUCT ComM., http://www.loubar.orgi/jccc/kjccchome.htm (last visited Nov. 21,
2011).
55 See generally Carey, 614 F.3d at 189.
5° Ruling eases fundraising for judicial candidates, CINCINNATI ENQUIRER, Oct. 31, 2010 (discussing the
Kentucky Judicial Campaign Conduct Committee's response to the Sixth Circuit's decision in Carey v. Wolnitzek).
57 Kentucky Judicial Campaign Conduct Committee cautions judicial candidates about soliciting and accepting
contributions, NEws.LAWREADER.COM, Aug. 14, 2010, http://news.lawreader.com/?p=3226 (last visited Nov. 19,
2011). The KJCCC did not receive any complaints to investigate during the 2010 election cycle. Telephone
Interview by Sarah Turberville with Al Cross, Secretary, Ky. Judicial Campaign Conduct Comm., May 6, 2011 (on
file with author).
330
Although Kentucky does not evaluate the conduct of judges eligible for reelection statewide,®
the Louisville Bar Association (LBA) has conducted evaluations of Jefferson County judges
since 1979.°° The LBA states that the purpose of the evaluation is to “provide constructive
feedback to sitting judges in order to improve the judiciary and the quality of justice delivered
throughout Jefferson County.”’°’ Letters and postcards describing the Jefferson County Judicial
Evaluation are sent to approximately 4,200 members of the KBA with addresses in Jefferson
County.” Recipients who are qualified to participate in the survey, as determined by the
postcard reply, are then mailed a survey packet." Judges are evaluated on “general satisfaction,
judicial temperament, court management, judicial integrity, legal ability, civil cases and criminal
cases,” and the results are published on the LBA website. °°
LBA leaders also established Citizens for Better Judges (CBJ), an organization that identifies,
interviews, and endorses potential judicial candidates in order to ensure “a competent,
conscientious and professional judiciary.”"* CBJ is composed of a twenty-seven member
Steering Committee of attorney litigators and retired judges, a Citizens Review Board
“consisting of an equal number of community-minded citizens drawn from the ranks of business,
labor, government, education, medicine, mental health, as well as other civic and religious
leaders,” and an Advisory Board composed of past CBJ chairpersons and the current chairs of
the steering committee and the Review Board.' CBJ conducts confidential interviews with
candidates for the Louisville-Jefferson County judiciary on five main topics:
(1) personal attributes such as physical and mental health, family or financial
problems that the candidate believes would affect his/her ability to preside
impartially, reasons for seeking election or re-election, public service and
civic involvement;
(2) legal knowledge and ability including academic record, experience,
professional achievements, continuing legal education, analytical approach;
(3) court management skills such as supervisory and organizational abilities,
work ethic, ideas about improvement of the judicial system;
(4) judicial temperament relating to qualities such as fairness and impartiality in
the conduct of proceedings, decisiveness, dignity, decorum, compassion; and
(5) judicial integrity as reflected by adherence to the Code of Judicial Conduct,
enforcement of the Rules of Professional Conduct with respect to attorneys
58 Methods of Judicial Selection: Kentucky, Retention Evaluation Programs, AM. JUDICATURE Soc’y,
http://www judicialselection.us/judicial_selection/methods/judicial_performance_evaluations.cfm?state=KY —_ (last
visited Nov. 12, 2011).
5° Judicial Evaluation Results Announced, LOUISVILLE BAR Ass’N, http://www.loubar.org/story.cfm?STID =1602
(last visited Nov. 21, 2011). The complete LBA 2010 judicial evaluation results are available at
http://www. loubar.org/download/JudicialEval_10comparative.pdf. We are unaware of additional bar associations or
organizations undertake an evaluation of judges in other circuits or districts.
101 ie
102 Yq.
Id. Some of the performance standards, such as “civil cases” and “criminal cases,” are not defined.
lot What is Citizens ~—for Better Judges?, CirizeNS FOR ~—- BETTER _—<JUDGES,
http://www.citizensforbetterjudges.org/about.html (last visited Nov. 13, 2011) [hereinafter Citizens for Better
udges].
is Citizens for Better Judges, supra note 104.
331
appearing before him/her, uniformity of rulings, susceptibility to influence,
ratings in the Louisville Bar Association’s Judicial Evaluation and Judicial
Candidate Poll.1%
In addition to the interviews, CBJ members consider “(1) the candidate’s resume; (2) a summary
of the questions asked and answers given at the interview; (3) personal observations and opinions
of those attending the interview; and (4) comments of members based upon personal experience
with the candidate which are relevant to his or her qualifications.” °’ CBJ then follows a written
endorsement procedure where a candidate must first “receive a favorable vote of three-quarters,
or at least ten, of the voting Steering Committee members, and then must be approved by the
Citizens Review Board.”’ If a candidate’s endorsement is not approved by the Citizens
Review Board, “the matter is returned to the Steering Committee for further consideration and
appropriate action.”’°” Endorsements are published on the CBJ website and in the Louisville
Courier-Journal three to four times within the week before a judicial election.'?°
Furthermore, in 2005, the LBA adopted a resolution on “Supporting Fair Judicial Elections” in
which it stated that it “dedicates itself to the education of the public on the importance of
maintaining judicial integrity during campaigns for office and calls upon candidates for judicial
office to conduct themselves during campaigns in accordance with the principles of neutrality
and judicial independence.” !”!
Kentucky judicial candidates have also made public statements about the importance of judicial
independence and discussed the politics that can erode the fair administration of justice. For
example, in the 2006 election for a seat on the Kentucky Supreme Court, the incumbent justice
remarked that controversial issues “may be excellent questions for a legislative or govemor
candidate, but that an interpreter of the law is much different from a lawmaker and his personal
views are irrelevant.”!!" In a 2005 Kentucky Supreme Court race, one incumbent noted that
“[lJitigants . . . deserve to have a judge that has not made up his or her mind about issues that
may be involved in that person’s lawsuit. They should have a judge who has not expressed
views even if they have thought about the issues outside the context of a specific case.” !"3
106 Daniel T. Goyette, Citizens for Better Judges: An Effective Effort to Inform and Improve Judicial Selection,
CITIZENS FOR BETTER JUDGES, http://www.citizensforbetterjudges.org/history.html (last visited Nov. 13, 2011)
(recognizing that judicial candidates are bound by the Code, and therefore avoiding questions which would infringe
on candidates’ ethical obligations).
107 Id.
108 Id. (which includes determining “that the interview process and endorsement procedure was fully and fairly
conducted ... in accordance with CBJ’s bylaws”).
Id.
0 Telephone Interview by Paula Shapiro with Homer Parent III, Chair, Citizens for Better Judges (Apr. 25, 2011)
(on file with author).
'1 Louisville Bar Ass'n, Resolution On Supporting Fair Judicial Elections, June 27, 2005 (on file with author).
112. Editorial, Schroder for Supreme Court, CINCINATTI ENQUIRER, Oct. 31, 2006, at B6.
413 Feoshia Henderson, Unmuzzling Judges; Challenges to Rules that Limit How Judges Campaign Have Set up a
Showdown Between Two Long-Held Constitutional Rights—the Right to Free Speech, and the Right to a Fair Trial.
CINCINNATI-KY. Post, Feb. 2, 2005, at K8 (quoting Justice Stumbo, who further noted that “[j]udges are supposed
to notjust avoid impropriety, they’ re supposed to avoid the appearance of impropriety”).
332
Despite efforts to ensure independence and impartiality, the politicization of judicial elections in
Kentucky has increased over the years. Media coverage of judicial elections has reported
candidates’ party affiliations.'!4 For example, in the 2006 judicial election, reports noted that
candidates “touted their conservative credentials in three [] contested high court races,” !!°
Public discussion of judicial candidates’ political party affiliation is likely to increase since the
Sixth Circuit invalidated the portion of the Code that prohibited judges and judicial candidates
from publicly disclosing their party affiliation. '"°
In addition, there have been numerous instances where judicial candidates have stated their view
on capital punishment and/or campaigned on a “tough on crime” platform. During Judge Rick
Johnson’s 2006 campaign for a seat on the Kentucky Supreme Court, he publicly pronounced his
views conceming issues to come before the court, including the death penalty.'!’ In response,
the KJCCC wrote:
Judge Johnson may have a First Amendment right to make such statements... .
But while candidates now enjoy broader rights to comment, they should couple
that with the responsibility to uphold the independence and integrity of the
judicial system . . . . Judicial candidates who publicly state their views on disputed
issues inevitably create the impression that such views would affect how they
would rule from the bench, and that runs counter to the principle of judicial
independence. !!®
The KJCCC also rebuked Judge Johnson for use of campaign materials in which he portrayed his
opponent, Judge Bill Cunningham, as “soft on rapists,” alleging that Cunningham had attempted
to make six rapists eligible for parole, one of whom allegedly committed sodomy and rape within
a day of being out on parole.'"® In a 2008 Jefferson County District Court race, one judicial
candidate promised that, if elected, her priorities would include “putting crime victims over
criminals” and stopping the “revolving door of criminals at the courthouse” and that she would
“partner with police in their efforts to control crime.” 7°
14 For example, multiple articles noted in one election that a judicial candidate was a former Republican Party
chairman and another is a registered Democrat. Andrew Wolfson, Kentucky Supreme Court: McAnulty beats Shake
to keep seat, COURIER-J. (Louisville, Ky.), Nov. 8, 2006, at K5; Samira Jafari, Fletcher's Supreme Court appointees
face tough competition, ASSOCIATED PREss, Nov. 7, 2006.
115 Andrew Wolfson, Kentucky Supreme Court: McAnulty beats Shake to keep seat, COURIER-J. (Louisville, Ky.),
Nov. 8, 2006, at K5 (noting those candidates “either lost or appeared headed toward defeat”); Andrew Wolfson,
Candidates for judge can reveal party, COURIER-J. (Louisville, Ky.), Oct. 12, 2006, at Al.
6 Carey, 614 F.3d at 203-04.
"7 Committee: Johnson Ad Misrepresents Cunningham’s Record, Ky. JuD. CAMPAIGN CONDUCT CoMM.,
http://www judicialcampaignconduct.org/committees/Electronic% 20C ommittee% 20Files/K Y %20misc/kjccchome.p
df (last visited Nov. 14, 2011).
48" Td.; Kentucky Judicial Campaign Conduct Committee Activity for 2006, Ky. JuDICIAL CAMPAIGN CONDUCT
Como., http://www. loubar.org/jccc/kjccc2006.htm (last visited Nov. 14, 2011).
9" Matt Sanders, Johnson Defends Ads Criticizing Rapist Sentences, PADUCAH SUN (Ky.), Nov. 1, 2006.
20 Editorial, A real stinker, CouRIER-J. (Louisville, Ky.), Nov. 7, 2008, at A8.
333
The specter of judicial elections may also affect judges’ treatment of litigants in the
Commonwealth’s courtrooms.’”! For example, during a December 2010 sentencing hearing, a
Jefferson County Circuit Court judge publicly exclaimed that she decided to sentence a
defendant to life in prison without the possibility of parole rather than the death penalty, noting
that he will be surrounded by “bigger, meaner men who have nothing to lose” and that “[h]e will
fear for his life every day. He will wish this court had put him on death row.”’” Some
commentators noted that “[i]t seems likely that in crafting her statement, Judge McDonald-
Burkman was trying to protect her backside from attacks in a future election campaign that she
was soft on crime.” “8
Judicial A ppointments to Fill Vacancies
Kentucky’s electoral selection process also authorizes the Governor to appoint judges to fill
vacancies on the bench between elections.!4 Under Kentucky’s appointment scheme, the
Governor must appoint a judicial candidate from a list of three nominees submitted by a Judicial
Nominating Commission (JNC).’% There are sixty-one JNCs located throughout the
Commonwealth.”° The composition of the JNC includes the Kentucky Supreme Court Chief
Justice, who serves as chair, two attorneys elected by the attorneys in the vacancy’s jurisdiction,
and four additional non-attomey Kentucky citizens appointed by the Govemor who must equally
represent the two major political parties.'”” However, as the Govemor appoints four of the seven
positions on each JNC, and the Govemor also selects who will fill a vacancy from the list of
approved candidates provided by each JNC, a Governor may wield great influence in
determining which judicial candidates appear on the list of prospective judges and who is
ultimately appointed to fill the Commonwealth’ s vacant judgeships.
The Kentucky Death Penalty Assessment Team applauds the work of the LBA and CBJ,'”° as
well as the efforts of some judges and judicial candidates, to educate the public and to help
ensure the independence and impartiality of the judiciary. However, the prevalence of partisan
politics in elections for Kentucky’s judiciary, the undue influence that the Governor may wield
in the appointment of judges to vacant positions on the bench, and the Commonwealth's failure
to examine the fairness of its statewide judicial selection process places the Commonwealth in
partial compliance with Recommendation #1.
121 Notably, the Code explicitly states “[a] judge shall not be swayed by partisan interests, public clamor{,] or fear
of criticism.” SCR 4.300, Canon 3B(2).
2 Transcript of Judge Judith McDonald-Burkman's Sentence, WAVE3.coM, http://www.wave3.com/story/
13702702/burkman-comments (last visited Nov. 20, 2011).
23 Editorial, Injudicious Conduct, CourIER-J. (Louisville, Ky.), Dec. 21, 2010, at A10.
M4 Ky. Const. §§ 117, 118; Citizens for Better Judges, supra note 104 (noting “the growing trend toward merit
selection and appointive systems designed to counteract the soaring costs and potential conflicts in judicial elections
which threaten the quality, integrity and independence of the judiciary.”).
25 Ky. Const. § 118.
26 Composition of the Judicial Nominating Commissions, Ky. Court oF JUSTICE, http://courts.ky.gov/jnc/#comp
(last visited Nov. 20, 2011).
27 Td; Ky. Const. § 118(2); Ky. REV. STAT. ANN. § 34.010(2) (West 2011); Composition of the Judicial
Nominating Commissions, Ky. Court OF JUSTICE, http://courts.ky.gov/jnc/#comp (last visited Nov. 12, 2011).
8 Citizens for Better Judges has been referred to by the Courier-Journal as “the major and most influential civic
group interested in judicial elections,” and commended the organization for earning a reputation “for careful
screening of candidates before making endorsements.” Citizens for Better J udges, supra note 104.
334
Ultimately, the viability of Kentucky’ s judicial system demands the separation of the courts from
political influence.'2° Therefore, the Commonwealth should also appoint a bipartisan
Commission to undertake a comprehensive evaluation of the faimess of Kentucky’s judicial
selection processes and the effect of unfair practices on compromising the independence of the
courts. The Kentucky Assessment Team also recommends that judicial evaluation systems
similar to the CBJ be established throughout the Commonwealth which will improve citizens’
understanding of the importance of the independence of the judiciary, as well as educate citizens
on the relevant qualifications of judicial candidates before an election.
B. Recommendation #2
A judge who has made any promise—public or private—regarding his/her
prospective decisions in capital cases that amounts to prejudgment should not
preside over any capital case or review any death penalty decision in the
jurisdiction.
The Code prohibits judicial candidates and judges from making statements that may affect any
future decisions. Specifically, Canon 2 of the Code mandates that a judge “avoid impropriety
and the appearance of impropriety in all of the judge’s activities.”'"° Canon 3 requires that a
judge “perform the duties of judicial office impartially and diligently.” While a proceeding is
pending or impending in any court, judges also must refrain from making “any public comment
that might reasonably be expected to affect [the proceeding’s] outcome or impair its faimess or
[from] mak[ing] any nonpublic comment that might substantially interfere with a fair trial or
hearing”?
Similarly, the Code’s “commits clause,” Canon 5B(1)(c), prohibits judges and judicial candidates
from “mak[ing] pledges, promises or commitments that are inconsistent with the impartial
performance of the adjudicative duties of judicial office.”*? Canon 5B(1)(c) also prohibits
judges and judicial candidates from “intentionally or recklessly mak[ing] a statement that a
reasonable person would perceive as committing the judge or candidate to rule a certain way ona
case, controversy, or issue that is likely to come before the court,” thereby prohibiting a judge or
judicial candidate from making a promise regarding his/her prospective decision in capital case
that amounts to prejudgment. *
29 Carolyn B. Lamm, ABA President's Message: Let’ s Leave Politics Out of It, 10 ABA JOURNAL (March 2010).
180 SCR 4.300, Canon 2. For example, Canon Two prohibits membership in certain organizations, and prohibits
certain relationships from impairing the judge’ s objectivity. SCR 4.300, Canon 2, 2D, 2E.
8! SCR 4.300, Canon 3.
182. SCR 4.300, Canon 3B(9) (noting that this Canon “does not prohibit judges from making public statements in
the course of their official duties or from explaining for public information the procedures of the court . . . [nor does
it] apply to proceedings in which the judge is a litigant in a personal capacity,” “but in cases such as a writ of
mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly.”).
133 SCR 4.300, Canon 5B(1)(c) cmt.
A ag, (emphasis added).
335
However, the current status of the fifth canon’s “commits clause” with respect to candidates
making statements about controversial issues, such as the death penalty, is unclear. 135 The
Kentucky Supreme Court previously has provided great latitude to judges and judicial candidates
to state their views on disputed issues.'*° Indeed, the Court recognized that there exists a strong
public interest in the education of the public about judicial candidates’ views, stating
[w]e believe a well informed electorate is essential to the democratic election
process guaranteed by the Kentucky Constitution. The right] of the voting public
to hear what a candidate has to say is a compelling one. We further believe
candidates for judicial office can announce their views on legal and political
issues without jeopardizing the integrity and independence of the legal system or
undermining the impartiality of the judiciary.'°”
It appears that judicial candidates are permitted to state their views on controversial issues, short
of “intentionally or recklessly”'® making a statement that would amount to prejudgment or
would commit the speaker to a particular ruling in a case. In fact, judicial candidates in
Kentucky have spoken publicly about their personal philosophies on the death penalty.’*’ For
example, during his successful 2004 judicial campaign for a seat on the Kentucky Supreme
Court, Justice Will T. Scott made public comments about a death row inmate whose case would
later come before the Kentucky Supreme Court.'“° In 2006, Judge Rick Johnson also publicly
declared his support for the death penalty, among other controversial issues. “’
Kentucky also requires “a judge [to] disqualify himself or herself in a proceeding in which the
judge’s impartiality might reasonably be questioned,”'“? and Commonwealth statutory law
‘854.5 mentioned in the Factual Discussion, the U.S. Court of Appeals for the Sixth Circuit recently remanded the
case of Carey v. Wolnitzek to the district court “for further consideration of the meaning and validity of [the] clause”
with respect to its mention of “issue[s].” Carey, 614 F.3d at 207-10. Regarding the clause’s prohibition against
statements on “cases” and “controversies” likely to come before the court, the Sixth Circuit held that the clause
narrowly advances the Commonwealth's “compelling interest in ‘prohibit{ing] candidates from promising to rule a
certain way on cases.’ ” Id. at 207 (“By preventing candidates from making statements that commit them to rule a
certain way on a case or controversy, the clause secures a basic objective of the judiciary, one so basic that due
process requires it: that litigants have a right to air their disputes before judges who have not committed to mle
against them before the opening brief is read.” (quotations omitted)).
130 See Family Trust Found. v. Ky. Judicial Conduct Comm'n, 388 F.3d 224 (6th Cir. 2004) (striking down
Kentucky’s previous announce clause).
157 Family Trust Found., 388 F.3d at 228 (citing J.C.J.D. v. RJ.C.R., 803 S.W.2d 953, 956 (Ky. 1991) (dismissing
a disciplinary case against a Kentucky Supreme Court Justice) (all special justices sitting)).
138 SCR 4.300, Canon 5B(1)(c) cmt.
189 In Republican Party of Minnesota v. White, the U.S. Supreme Court ruled that Minnesota's canon of judicial
conduct which prohibited judicial candidates from announcing his/her views on disputed legal or political issues
“both prohibits speech on the basis of its content and burdens a category of speech that is ‘at the core of our first
Amendment freedoms’ — speech about the qualifications of candidates for public office.” 536 U.S. 765, 774 (2002).
“40 Beth Musgrave, Was Scheduled to Die Sept. 25: State Supreme Court Stays Baze Execution, LEXINGTON
HERALD-LEADER, Sept. 13, 2007.
‘41 Committee: Johnson Ad Misrepresents Cunningham’s Record, Ky. Jup. CAMPAIGN CONDUCT CoMM’N,
http://www judicialcampaignconduct.org/committees/Electronic% 20C ommittee% 20Files/K Y % 20misc/kjccchome.p
df (last visited Nov. 20, 2011).
“SCR 4.300, Canon 3E(1); Ky. REV. STAT. ANN. § 26A.015(2)(e) (West 2011). See also Family Trust
Found., 388 F.3d at 228 (noting another “narrowly tailored mechanism[] exists under Kentucky law to preserve the
impartiality of the judiciary— namely Kentucky’ s recusal statute”).
336
further requires judges to recuse themselves from legal proceedings where they have “a personal
bias or prejudice conceming a party,” “personal knowledge of disputed evidentiary facts
conceming the proceedings,” or “knowledge of any other circumstances [such that their]
impartiality might reasonably be questioned.”'“* For example, the Kentucky Supreme Court
overtumed a murder conviction due, in part, to the trial court’s denial of a capital defendant’ s
motion for recusal based on the judge’s (1) previous participation in guardianship proceedings
involving the defendant and the two minor victims in the case, (2) statements to the press
following the indictment, (3) extra-judicial knowledge of the defendant’s background, and (4)
“insistence on an October 23rd trial date while being a candidate for election in November,
juxtaposed with the adverse publicity which he had received as a result of the [victims’]
deaths.” “* The Court further recognized that the trial judge “stood to gain significant public
favor by conducting a trial in which a guilty verdict was retumed in this high-profile case,
shortly before the November election.” !°
Similarly, in response to the campaign statements regarding a death row inmate, in 2007 Justice
Scott recused himself at the request of the inmate’ s attorneys, when the Kentucky Supreme Court
heard the inmate’s request for a stay of execution.'“° In another capital case, a judge recused
himself upon a motion of the defendant, stating that “he could not impose the death penalty if
recommended by the jury because the capital defendant’s accomplice had received a probated
sentence.”'*” However, under the Code, judges may continue to preside over capital cases
“3 Ky. Rev. STAT. ANN. § 26A.015(2)(a), (e) (West 2011) (listing other reasons a judge must disqualify
him/herself). However, prior to the commencement of trial in Bussell v. Commonwealth, the judge stated that he
had represented the defendant on a murder case seventeen years earlier and “indicated some willingness to recuse
... if a motion was made at that time.” Bussell v. Commonwealth, 882 S.W.2d 111, 112-13 (Ky. 1994). The
defense counsel declined, at that time, to move for recusal but, five days prior to trial, reversed course and filed a
motion for recusal. The trial judge overruled the motion. Id. On appeal, the Kentucky Supreme Court stated that
the trial court’s refusal to recuse was not reversible error and that the motion should have been made “immediately
upon discovery of the facts upon which the disqualification rests.” Because this had not been done, the issue was
deemed waived. Id. The Court also noted that the “conduct of the trial judge was not a textbook example of judicial
patience,” but it found “no violation of the [capital] defendant's rights.” Id. See also Hester v. Commonwealth, No.
2004-SC-000794-MR, 2006 WL 2707441, at *5-7 (Ky. Sept. 21, 2006) (finding no reversible error, but labeling
trial court’s comments as “not ideal” for trial judge’s denial of motion to recuse where the trial court had stated on a
television news broadcast, following escape from prison by a co-defendant, that “[i]t’s my policy that if both sides
agree I will recuse myself from this case. But I believe that I would be much more harsh than anyone else could at
this point.”).
14 “Sommers v. Commonwealth, 843 S.W.2d 879, 881 (Ky. 1992).
MS" Td. at 882.
146 Beth Musgrave, Was Scheduled to Die Sept. 25: State Supreme Court Stays Baze Execution, LEXINGTON
HERALD-LEADER, Sept. 13, 2007; Baze v. Commonwealth, 276 S.W.3d 761 (Ky. 2008) (noting Justice Scott not
sitting). See also Baze v. Commonwealth, No. 2005-SC-0889-MR, 2006 WL 1360281 (Ky. May 18, 2006) (noting
Justice Scott not sitting). Justice Scott also recused himself when the Kentucky Supreme Court heard the direct
appeal of a death sentence in Fields v. Kentucky. See CHIEF JUSTICE LAMBERT, SuP. CT. OF KY. ORAL ARGUMENTS
CALENDAR (Jan. 30, 2008), available at http://www.aoc.state.ky.us/Supreme/CA LENDAR/SCOMARO8.htm. See
also Commonwealth v. Bussell, 226 S.W.3d 96 (Ky. 2007) (all sitting except Justice Scott); Fields v.
Commonwealth, 274 S.W.3d 375 (Ky. 2008) (all sitting except Justice Scott).
“7 Tamme v. Commonwealth, 973 S.W.2d 13, 23 (Ky. 1998). However, in Hodge v. Commonwealth, the trial
court judge did not recuse himself in a death penalty case where the judge had dated the prosecutor's girlfriend—
who was the jury foreman’ s stepdaughter— and the prosecutor's son had served as a law clerk for the judge. Hodge
v. Commonwealth, 68 S.W.3d 338, 346 (Ky. 2001) (“We cannot say that the trial court abused its discretion in
denying the motion to recuse. But we believe that, if it appears likely that Combs will be called as a witness at the
3371
notwithstanding such statements.'“® The KJCCC also issued a mild rebuke of Judge Rick
Johnson in response to his public declaration of his stance on controversial issues. !“°
Unfortunately, there is no public record of the number of judicial misconduct complaints filed,
investigated, or charged, the facts underlying each complaint, and whether judges were
disciplined and/or whether charges were dismissed. Kentucky rules prohibit disclosure of much
of the information in complaints filed with the Judicial Conduct Commission.’*° As a result, the
Assessment Team are unable to determine whether judges whose promises or statements may
have amounted to prejudgments have recused themselves or been removed from presiding over a
capital case.
Due to the uncertainty surrounding the Code’s prohibition on a judge or judicial candidate from
making a statement on a controversial “issue that is likely to come before the court,” it is unclear
whether a judge’s or judicial candidate’s statement on the death penalty is tantamount to
prejudgment and, therefore, whether that judge or judicial candidate should not preside over any
capital case. As such, the Assessment Team are unable to determine whether the
Commonwealth of Kentucky is in compliance with this Recommendation.
C. Recommendation #3
Bar associations and community leaders should speak out in defense of sitting
judges who are criticized for decisions in capital cases, particularly when the judges
are unable, pursuant to standards of judicial conduct, to speak out themselves.
a. Bar associations should educate the public concerning the roles and
responsibilities of judges and lawyers in capital cases, particularly
concerning the importance of understanding that violations of substantive
constitutional rights are not “technicalities” and that judges and lawyers are
bound to protect those rights for all defendants.
b. Bar associations and community leaders publicly should oppose any
questions of candidates for judicial appointment or re-appointment
concerning the percentages of capital cases in which they upheld the death
penalty.
c. Purported views on the death penalty or on habeas corpus should not be
litmus tests or important factors in the selection of judges.
evidentiary hearing on the jury tampering allegations, then Judge Wright should reconsider the recusal motion in
order to prevent the appearance of impropriety.”).
48 See, e.g., McQueen v. Commonwealth, 265 S.W.3d 156 (Ky. 2007) (where Justice Scott concurred in upholding
the death sentence for an inmate executed four days later); Fumish v. Commonwealth, 267 S.W.3d 656 (Ky. 2007)
(where Justice Scott concurred in upholding the death sentence); Halvorsen v. Commonwealth, 258 S.W.3d 1 (Ky.
2007) (where Justice Scott concurred in denying the inmate’ s post-conviction relief).
“8 Committee: Johnson Ad Misrepresents Cunningham’s Record, Ky. JuD. CAMPAIGN CONDUCT COMM.,
http://www judicialcampaignconduct.org/committees/Electronic% 20C ommittee% 20Files/K Y %20misc/kjccchome.p
df (last visited Nov. 14, 2011).
150" See supra note 65; SCR 4.130(1)-(2).
338
Political assaults on judges may not only affect the way judges decide death penalty cases, they
also may affect the public’s perception of the judiciary’s proper role. The negative image
created by such attacks is exacerbated by the inability of the judiciary to speak in its own
defense. It is therefore imperative that bar associations and community leaders publicly defend
judges from assaults that undermine the independence of the judiciary.
Kentucky judges have been criticized for their decisions in capital cases.’ In fact, at least one
candidate defeated an incumbent and was elected to the Kentucky Supreme Court after an
election during which he publicly criticized his opponent for “sid[ing] with criminal defendants
in more than 65 percent of the criminal cases to come before the Supreme Court.”
We were unable to identify any instances where Kentucky bar associations or community leaders
have publicly defended Commonwealth judges who have been criticized for their decisions in
criminal cases. However, various Kentucky bar associations and community leaders have taken
steps to protect the overall independence and impartiality of the Commonwealth’s judiciary. For
example, in 2005 the Louisville Bar Association adopted a “Resolution On Protecting the
Independence of Our Judiciary,” in which it advised that government officials who disagree with
a court decision “should not threaten to punish members of the judiciary through impeachment
and other means for decisions rendered by the courts as part of the proper performance of their
duties on behalf of the public.”!*°
The KJCCC and CBJ are also two entities whose mission is to encourage fairness in judicial
campaigns.’ In 2006, the KJCCC publicly rebuked a judicial candidate for campaign conduct
in which misleading statements were made regarding his opponent's rulings on habeas corpus
and other constitutional and procedural issues in a series of high-profile criminal cases.’°° The
KJCCC also rebuked the incumbent judge for stating his views on social issues, including the
death penalty, during the judicial campaign.’*°
‘51 See, e.g., Kentucky Teen Killer Todd Ice Dead at 47, UPI Top Stories, Oct. 25, 2010,
http://www.upi.com/Top_News/US/2010/10/25/K entucky-teen-killer-T odd-Ice-dead- at-47/UPI-56401288021355/
(noting that a Kentucky Supreme Court decision to overtum a death sentence created a fury “that included a recall
campaign against two [Kentucky Supreme Court] justices,” this despite the fact that Commonwealth law does not
provide for such recall elections); Editorial, Injudicious Conduct, CourtER-J. (Louisville, Ky.), Dec. 21, 2010, at
A10 (noting criticism for a circuit court judge’s decision not to impose a death sentence after defendant plead guilty
to capital murder); Never Too Early To Prepare To Avoid The Death Penalty, SIMPLE JusTICE, Nov. 21, 2009
(criticizing a judge’s decision not to find a defendant mentally retarded, therefore making defendant eligible for the
death penalty). But see Chapter Thirteen on Mental Retardation and Mental Illness, discussing Kentucky trial
courts’ comprehension of modem, scientific understanding of mental retardation.
132. Will T. Scott, Record of Being Tough on Criminals, LEXINGTON HERALD-LEADER, Oct. 29, 2004.
153 LOUISVILLE BAR Ass’N, RESOLUTION ON PROTECTING THE INDEPENDENCE OF OUR JUDICIARY, June 27, 2005
(on file with author). The resolution noted that “when the judiciary makes decisions with which citizens disagree,
citizens have a responsibility to pursue legitimate opportunities of redress available to them.” Id.
‘54 Ky, JUDICIAL CAMPAIGN CoNDUCT CoMM., http://www.loubar.org/jccc/kjccchome.htm (last visited Nov. 14,
2011); History for Citizens for Better Judges, CITIZENS FOR BETTER JUDGES,
http://www. citizensforbetterjudges.org/history.html (last visited Nov. 14, 2011).
'55” Committee: Johnson Ad Misrepresents Cunningham's Record, 1-2 Ky. JuD. CAMPAIGN CONDUCT CoMM.,
http://www judicialcampaignconduct.org/committees/Electronic% 20Committee% 20Files/K Y %20misc/kjccchome.p
df (last visited Nov. 14, 2011).
Td. at 6.
339
Furthermore, in 2005, when the Family Trust Foundation of Kentucky presented judicial
candidates with a questionnaire on controversial social issues, some Commonwealth leaders and
community organizations publicly requested “judicial candidates in the state to sign a pledge not
to answer any questionnaires from special-interest groups.”'°’ Other Commonwealth entities,
such as the KJCCC, educated judicial candidates on the “possible consequences” of filling out
such questionnaires and ultimately left it up to each individual candidate to determine whether or
not to respond,!°®
In light of recent litigation over the constitutionality of the Kentucky Code of Judicial Conduct, it
appears that special interest groups may request, and judicial candidates may lawfully respond
to, inquiries concerning a candidate’s view on controversial social issues.!°° In addition, it
appears judicial candidates may speak to “issue[s] that [could] come before the court” for which
they seek office. These developments reinforce the need for educating the public on judges’
responsibility to protect the constitutional rights of all defendants and to not use a judicial
candidate’ s view on the death penalty or habeas corpus as an important factor in the selection of
ajudge. Given that the KJCCC, CBJ, and other organizations have spoken out against attacks on
the judiciary that undermine its independence, but have not specifically opposed the questioning
or criticizing of judges for their rulings in capital cases, Kentucky is in partial compliance with
Recommendation #3.
D. Recommendation #4
A judge who observes ineffective lawyering by defense counsel should inquire into
counsel’s performance and, where appropriate, take effective actions to ensure that
the defendant receives a proper defense.
Recommendation #5
A judge who determines that prosecutorial misconduct or other activity unfair to
the defendant has occurred during capital case should take immediate action
‘857 Jack Brammer, Justice Sets Up Panel to Monitor Campaigns; Will Guide Ethics of Judicial Candidates,
LEXINGTON HERALD-LEADER, July 8, 2005, at A1 (quoting Richard Beliles of Common Cause of Kentucky, who
stated that “[i]f [judges] answer a questionnaire from a special interest group wanting to know how they stand on
abortion, the death penalty, or any other social issue, that could hurt their impartiality in deciding cases on subjects
like that... .”); Family Trust Found., 388 F.3d at 224.
158 Jack Brammer, Justice Sets Up Panel to Monitor Campaigns; Will Guide Ethics of Judicial Candidates,
LEXINGTON HERALD-LEADER, July 8, 2005, at A1 (noting that Common Cause of Kentucky made this request). At
least nine 2006 judicial candidates refused to answer the Foundation’s questionnaire due to reservations about the
public’s view of their impartiality, and the uncertainty whether it would be a violation of the Kentucky Code of
Judicial Conduct. Family Trust Found., 388 F.3d at 224.
159 See Family Trust Found., 388 F.3d at 227-28 (denying the Kentucky Judicial Conduct Commission motion for
stay for failure to meet the standard, pending appeal, of District Court injunction prohibiting enforcement of
Kentucky Supreme Court Rule prohibiting judicial candidates from making pledges other than the faithful and
impartial performance of their duties during judicial campaigns); Carey, 614 F.3d at 210 (invalidating two of
Kentucky’s Canons of Judicial Conduct known as the “party affiliation” and “solicitation” clauses while remanding
for further consideration the meaning of Canon 5B(1)(c), the “commits clause,” prohibition on judicial candidates
from making a statement on “issues” to come before the court). Code commentary notes that Clause 5B(1)(c) does
not specifically address judicial responses to questionnaires or media or community organization's requests for
interviews to learn candidates’ views on disputed or controversial legal or political issues. SCR 3.130(8.2), 4.300,
Canon 5B(1)(c) & cmt.
340
authorized in the jurisdiction to address the situation and to ensure that the capital
proceeding is fair.
Trial courts are in the best position to view the conduct of prosecutors and defense attorneys,
assess its impact, and choose the appropriate action to ensure a fair trial. To assist trial courts in
the management of a death penalty case, the Administrative Office of the Courts sponsors a four-
day orientation program for new circuit court judges, which includes training on capital trials.
However, no continuing education regarding death penalty cases is required of Kentucky’s
judges.
The Kentucky Code of Judicial Conduct (Code) advises judges to “take appropriate action” when
they “receive[] information indicating a substantial likelihood that a lawyer has committed a
violation of the Kentucky Rules of Professional Conduct.” Appropriate action may include
“direct communication with the . . . lawyer who has committed the violation . . . and reporting
the violation to the appropriate authority.”"** The Code also advises judges to report the
violation to the appropriate authority if they have knowledge that an attomey’s violation of the
Rules of Professional Conduct “raises a substantial question as to the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects.” “*
It is clear that ineffective assistance of defense counsel and prosecutorial misconduct has
occurred in Kentucky death penalty trials.’ Since the death penalty was reinstated in 1976, at
least fifty of the seventy-eight defendants sentenced to death have had a death sentence
overturned by a Commonwealth or federal court; at least sixteen of these reversals were based in
whole or in part on prosecutorial misconduct/error or ineffective assistance of counsel.!° The
prevalence of reversals of death sentences in Kentucky demonstrates that trial courts have failed,
in some instances, to take effective action to ensure that capital proceedings are fair.
For example, in one capital case, the Kentucky Supreme Court reversed a death sentence because
the prosecution had notified the defense counsel that it would seek the death penalty only six
days before the commencement of trial and the trial court permitted the case to move forward.’°”
In another case, the Kentucky Supreme Court reversed a death sentence for, among other
reasons, the Commonwealth Attomey’s “flagrant conduct,” which included eliciting testimony
from the defendant that the perpetrator of the crime should be put to death and misinforming the
jury during the penalty phase that “they had an obligation to the judge to impose the death
160 Press Release, 44 judges participate in orientation program for new Kentucky judges, Ky. CT. OF JUSTICE, Mar.
17, 2010, http://migration.kentucky.gov/newsroom/kycourts/03172010JB1.htm (last visited Nov. 14, 2011).
16 See SCR 8.070 (“Every appellate judge and justice and every trial judge, not exempted, shall attend a minimum
of twenty-five [] hours in continuing judicial education courses approved by the Judicial Education Commission
.... Atleast once every two years, a portion of the required continuing judicial education shall consist of programs
which focus on the dynamics and effects of domestic violence including the availability of community resources,
victims’ services and reporting requirements.” )
1© SCR 4.300, Canon 3D(2).
163 SCR 4.300, Canon 3D cmt.
16 SCR 4.300, Canon 5D(2).
165 See also Chapter Six on Defense Services and Chapter Five on Prosecutorial Professionalism.
165 Kentucky Capital Case Basis for Reversals, 1976 to 2011, compiled by the ABA Death Penalty Moratorium
Implementation Project (on file with author).
167" Smith v. Commonwealth, 845 S.W.2d 534, 536-37 (Ky. 1993).
341
penalty... ,” each of which were not addressed by the trial court.!° One Kentucky death row
inmate’s conviction and sentence were overtumed during post-conviction proceedings due to
ineffective assistance of counsel and prosecutorial misconduct at the original trial in which the
“the conduct of the trial judge was not a textbook example of judicial patience... .”'
Furthermore, instances of ineffective lawyering and unfair practices may have occurred at trial
and deemed improper, but nonetheless found to be harmless or non-prejudicial to the outcome of
the proceeding, or procedurally defaulted. For example, the Kentucky Supreme Court remarked
on a trial court’s failure to ensure impartiality when a capital juror “brought a Bible into the j a
room and read Bible passages to the jurors and led jurors in prayer during deliberations.”
However, the Court ultimately concluded that the petitioners’ claim was barred as untimely.”
During the penalty phase of another capital trial of co-defendants, neither defense counsel
presented any witnesses to testify on either capital defendants’ behalf, nor did they introduce any
other mitigating evidence.!” The trial court did not inquire or take action regarding the lack of
defense during the penalty phase, despite the fact that one defendant's attorney conceded at trial
“that he was unprepared to proceed.” !
In the trial of Gregory Wilson, the trial court did not take effective action to ensure that he
received an effective defense, despite one defense counsel's complete lack of felony criminal
trial experience and his co-counsel’s absence from more than half of the trial, including during
the direct examination of the forensic pathologist, in which the co-counsel “later had to ask the
judge to summarize that witness’s testimony before his cross examination.”’” After a year had
168 Dean v. Commonwealth, 777 S.W.2d 900, 903-04, 907 (Ky. 1989) (“Not only did the court in appellant's trial
fail to perceive that the repeated references to the jury’s ‘recommendation’ warranted an admonition, but the trial
court ene the diminution of the jury's responsibilities in the drafting of the instructions submitted to the
iP, seal, 882 S.W.2d at 112 (The Court stated in Bussell’s direct appeal that “This court has carefully reviewed
the video tape of all the proceedings and concludes that reversible error did not occur. Although the conduct of the
trial judge was not a textbook example of judicial patience, we find no violation of the defendant's rights.”); Bussell,
226 S.W.3d at 102-03 (post-conviction). On direct appeal, the Court also determined the trial judge’s refusal to
recuse himself from the original capital trial was not reversible error, despite the fact that the trial judge had
previously represented the defendant on a murder charge fifteen years earlier, because the defendant had waived any
objection. Bussell, 882 S.W.2d at 112-13.
170" Willoughby v. Commonwealth, Nos. 2006-SC-000071-MR, 2006-SC-000100-MR, 2007 WL 2404461, at *1-3
(Ky. Aug. 23, 2007).
17 Id.
1 Hodge, 68 S.W.3d at 342-43. For more information on the death row inmates’ attomey, see Chapter Six,
Recommendation #3 (describing the reasons why the attomey was disbarred). See also Bill Estep, Death Row
Inmates allege J ury Tampering Epperson, Hodge Accuse Prosecutor of Wrongdoing, LEXINGTON HERALD-LEADER,
Jan. 13, 2000 (noting that in addition to taking pain killers during the capital trial, defense counsel was under
investigation for receiving stolen money).
3 Hodge, 68 S.W.3d at 343.
1™ Wilson v. Rees, 624 F.3d 737, 741 (6th Cir. 2010) (Martin, J., dissenting) (“Wilson gave a closing argument
that took [one-and-a-half] pages to transcribe; the prosecutor's took [fifty-four]”). Furthermore, it appears that
during this capital trial, the prosecuting attomey knew of an on-going extra-marital affair between Wilson’s co-
defendant, who testified against Wilson at his trial, and a judge who was a friend of the trial judge and whose
chambers were in the same courthouse as the trial judge, although it is unclear whether trial judge had knowledge of
the relationship. Id. at 738-39 (Martin, J. dissenting). See also Mark R. Chellgren, Killer Who Had Relationship
with Judge Not Entitled to Relief, ASSOCIATED PRESS, Apr. 21, 2005 (noting that the affair began in 1985, about two
years before Wilson and his co-defendant went to trial for capital murder).
342
transpired in which multiple attoeys resigned from representation of the defendant, the
“defense in this case began with a handwritten note begging for volunteers, and ended with
Wilson clumsily attempting to defend himself because he lacked competent counsel.”!”
Descriptions of the conduct of defense counsel at the trial, and the failure of the trial court to
remedy continued ineffectiveness apparent during the trial, prompted a judge on the U.S. Court
of Appeals for the Sixth Circuit to remark that “[o]ver my more than thirty years on the bench,
Wilson's trial stands out as one of the worst examples that I have seen of the unfaimess and
abysmal lawyering that pervade capital trials.””°
Despite training offered to new trial court judges on capital cases, the occurrence of ineffective
lawyering and unfair practices in Kentucky death penalty cases indicates that Commonwealth
trial courts are not always taking specific measures to ensure that capital proceedings are fair.
Therefore, Kentucky is not in compliance with Recommendations # or #5.
E. Recommendation #6
Judges should do all within their power to ensure that defendants are provided with
full discovery in all capital cases.
Neither the Kentucky Revised Statutes nor the Code explicitly requires judges to ensure that
capital defendants are provided with full discovery. However, Canon 3 of the Code does require
judges to be “faithful to the law” and perform their duties impartially, which includes enforcing
existing discovery rules.!””
Pretrial discovery is governed by Kentucky RCr 7.24. The Commonwealth and defense
counsel may agree to other discovery terms, such as reciprocal open file discovery, made
enforceable by order of the trial court delineating the specific discovery agreement.'” If one
party fails to comply with discovery, the trial judge can impose any sanction that “may be just
under the circumstances,” including: (1) ordering the offending party to “permit the discovery or
inspection of materials not previously disclosed,” (2) “grantling] a continuance,” (3)
“prohibit{ing] the party from introducing in[to] evidence the material not disclosed,” (4) granting
a continuance to enable the other party to examine the evidence, or (5) dismissing the charge,
which is the most severe penalty a court may impose.
15 Wilson, 624 F.3d at 741 (Martin, J., dissenting). In addition, “[alt many points during the trial, Wilson repeated
his assertion that his court-appointed standby counsel were, to use Wilson's words, ‘unprepared, ill-trained, ill-
equipped, and lacked the necessary competence and experience.” Wilson v. Commonwealth, 836 S.W.2d 872, 878
(Ky. 1992), overruled on other grounds by St. Clair v. Roark 10 S.W.3d 482, 487 (Ky. 1999); Andrew Wolfson,
Kentucky Death Row Inmate’s Trial Littered with Problems, CourIER-J. (Louisville, Ky.), Sept. 8, 2010.
16 Wilson, 624 F.3d at 741 (Martin, J., dissenting).
7 SCR 4.300, Canon 3B(2).
1% Ky, R. CRIM. P. 7.24. See also Ky. R. CRIM. P. 7.26 (demand for production of statement and reports).
1 See, e.g., Hicks v. Commonwealth, 805 S.W.2d 144, 148 (Ky. App. 1990) (capital-eligible case); McQueen v.
Commonwealth, 948 S.W.2d 415, 417 (Ky. 1997) (capital case); Denton v. Commonwealth, No. 2002-CA-001042-
MR, 2004 WL 178386, at *1 (Ky. App. Jan. 30, 2004) (capital-eligible case).
180 “Ky. R. Crim. P. 7.24(9); Berry v. Commonwealth, 782 S.W.2d 625, 627-28 (Ky. 1990), overruled on other
grounds by Chestnut v. Commonwealth, 250 S.W.3d 288, 296 (Ky. 2008); Neal v. Commonwealth, 95 S.W.3d 843,
848 (Ky. 2003).
343
Trial court status conferences also may permit the court to monitor discovery in capital cases,
however, the utility and frequency of the use of a status conference for this purpose is in the
court's discretion.
Thus, while full or open file discovery may occur via agreement, it is not required and
Commonwealth trial judges need only ensure that parties adhere to the discovery requirements of
RCr 7.24 in capital cases. Due to the lack of uniformity among the Commonwealth’s trial
courts’ practices to monitor and enforce discovery obligations in capital cases, we cannot
determine if the Commonwealth is in compliance with this Recommendation.
Furthermore, the Commonwealth does not permit discovery in capital post-conviction
proceedings and therefore Commonwealth courts are under no obligation to ensure discovery in
this context.'®! With respect to the Commonwealth's failure to permit discovery in this context,
see Chapter Eight on State Post-Conviction Proceedings.
The Kentucky Death Penalty Assessment Team recommends that the Commonwealth adopt a
procedure whereby a criminal trial court shall conduct, at a reasonable time prior to a capital
trial, a conference with the parties to ensure that they are fully aware of their respective
disclosure obligations under applicable discovery rules, statutes, ethical standards and the federal
and state constitutions and to offer the court’s assistance in resolving disputes over disclosure
obligations.’ This type of pretrial conference will permit the court to monitor the status of
discovery in a capital case to ensure proper and timely disclosure. Furthermore, it may also ease
the burden on post-conviction courts in determining whether the prosecution had knowledge of
the existence of discoverable or Brady’ material and failed to disclose it. '**
181 See Sanbom v. Commonwealth, 975 S.W.2d 905, 910 (1998), overruled on other grounds by Leonard v.
Commonwealth, 279 S.W.3d 151 (Ky. 2009) (stating that the pretrial discovery rule in not applicable in post-
conviction proceedings); Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001), overruled on other grounds by
Leonard, 279 S.W.3d 151 (holding that the trial court correctly denied the petitioner’s motion for discovery because
discovery is not authorized in a post-conviction proceeding); Gilliam v. Commonwealth, 652 S.W.2d 856, 858 (Ky.
1983) (stating that the purpose of the post-conviction proceedings is “to provide a forum for known grievances, not
to provide an opportunity to research for grievances.”).
18 See ABA, RECOMMENDATION 102D, 2010 Midyear Mtg. (adopted Feb. 8-9, 2010), available at
http://www.americanbar.org/content/dam/aba/migrated/leadership/2010/midyear/daily_jourmal/102D .authcheckdam
pdf.
183 Brady v. Maryland, 373 U.S. 83 (1963).
1! See, e.g., Bussell, 226 S.W.3d at 99-103 (affirming the post-conviction trial court’s finding of Brady violations
where the post-conviction circuit court held an evidentiary hearing on alleged Brady violations and ineffective
assistance of counsel claims that lasted nine days over the course of a year in which sixty-four witnesses were called
to testify).
344
CHAPTER TWELVE
RACIAL AND ETHNIC MINORITIES
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
In the past twenty-five years, numerous studies evaluating decisions to seek and to impose the
death penalty have found that race is all too often a major explanatory factor. Most of the studies
have found that, holding other factors constant, the death penalty is sought and imposed
significantly more often when the murder victim is white than when the victim is black. Studies
also have found that in some jurisdictions, the death penalty has been sought and imposed more
frequently in cases involving black defendants than in cases involving white defendants. The
death penalty appears to be most likely in cases in which the victim is white and the perpetrator
is black.
In 1987, the U.S. Supreme Court held in McCleskey v. Kemp’ that even if statistical evidence
revealed systemic racial disparity in capital cases, this would not amount to a federal
constitutional violation in and of itself. At the same time, the Court invited legislative bodies to
adopt legislation to deal with situations in which there is systemic racial disparity in the death
penalty’ s implementation.
The pattern of racial disparity reflected in McCleskey persists today in many jurisdictions, in part
because courts often tolerate actions by prosecutors, defense lawyers, trial judges, and juries that
can improperly inject race into capital trials. These include intentional or unintentional
prosecutorial bias when selecting cases in which to seek the death penalty, ineffective defense
counsel who fail to object to systemic discrimination or to pursue discrimination claims, and
discriminatory use of peremptory challenges to obtain all-white or largely-white juries.
There is no dispute about the need to eliminate race as a factor in the administration of the death
penalty. To accomplish that, however, requires that society identify the various ways in which
race infects the administration of the death penalty and devise solutions to eliminate
discriminatory practices.
t McCleskey v. Kemp, 481 U.S. 279 (1987).
345
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
The issue of racial and ethnic discrimination in the administration of capital punishment was
brought to the forefront of the death penalty debate by the U.S. Supreme Court's decision in
McCleskey v. Kemp.” Relying on a study conducted by David Baldus, Charles Pulaski, and
George Woodworth, McCleskey challenged the constitutionality of Georgia’s capital sentencing
process by arguing that it was applied in a racially discriminatory manner because blacks
convicted of killing whites were found to have the greatest likelihood of receiving the death
penalty, while whites convicted of killing blacks were rarely sentenced to death. The Court
rejected McCleskey’s claims, finding that the figures evidencing racial discrepancies in the
administration of the death penalty did not prove the existence of intentional racial
discrimination in McCleskey’s case.*
The 1987 U.S. Supreme Court’s decision in McCleskey invited legislatures to develop remedies
for eliminating race from the capital sentencing process.’ In 1992, five years after McCleskey,
the Kentucky General Assembly commissioned Kentucky Professors Thomas Kiel and Gennaro
Vito to conduct a study of racial discrimination within the Commonwealth’s capital sentencing
system.® Six years later, in 1998, the Kentucky General Assembly adopted the nation’s first
Racial Justice Act.’
In Kentucky, the issue of racial discrimination within the criminal justice system had come to the
forefront prior to McCleskey. In 1987, the U.S. Supreme Court ruled on a criminal case from
Jefferson County, Kentucky, in which attorneys for an African-American defendant challenged
the Commonwealth's Attomey’s use of peremptory challenges to strike all, four potential
African-American jurors, resulting in a jury composed of only white persons. In Batson v.
Kentucky, the U.S. Supreme Court held that a defendant may make a prima facie showing of
purposeful racial discrimination i in jury selection by relying solely on the facts concerning jury
selection in his/her case.° The Batson Court created a three-step process to determine whether
2 Id.
3 Id. at 291-92. See also U.S. Gen. Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of
Racial Disparities, Report to Senate and House Committees on the Judiciary, Appendix I (1990) (citing Gennaro F.
Vito & Thomas J. Keil, Capital Sentencing in Kentucky: An Analysis of the Factors Influencing Decision Making in
the Post-Gregg Period, 79 J. CRIM. L. & CRIMINOLOGY 483 (1988)).
‘Id. at 297.
. McClesky v. Kemp, 481 U.S. 279, 318 (1987).
5 Gennaro F. Vito, The Racial Justice Act in Kentucky, 37 N. Ky. L. REV. 273, 276 (2010).
7 See Ky. REV. STAT. ANN. §§ 532.300-.309 (West 1998).
8 Batson v. Kentucky, 476 U.S. 79, 83 (1986). The defendant was indicted for second-degree burglary and
receipt of stolen goods. Id. at 82.
3 Td. at 83, overruling Swain v. Alabama, 380 U.S. 202 (1965). Swain had required a defendant to prove that the
peremptory challenge system, on the whole, was discriminatory. Swain, 380 U.S. at 227-28. Notably, a 1975
Kentucky Prosecutor’s Handbook promoted use of peremptory strikes against racial and ethnic minority jurors,
“particularly potential jurors who were of ethnic or national background similar to that of the defendant who was on
trial.” Gerald Neal, Not Soft on Crime, But Strong on Justice: The Kentucky Racial Justice Act: A Symbol; A
Statement of Legal Principle; and A Commitment to Systemic Fundamental Fairness, 26 ADVOCATE 9, Mar. 2004,
at 21 (“The Kentucky Prosecutor's Handbook (1975) issued by the Office of the Kentucky Attorney General,
Prosecutor's Assistance Division counseled in favor of excluding minorities as jurors”); Susan K. Balliet & Bruce P.
Hackett, Litigating Race in Voir Dire, 30 ADVOCATE 3, May 2008, at 42 (noting that the defendant “had pointed out
that [the] prosecutor was purposefully following a manual prescribing peremptory removal of all black jurors”).
346
peremptory challenges were properly used or were instead based on racial discrimination: (1) the
defendant first produces prima facie evidence of the prosecutor's purposeful discrimination, (2)
the prosecutor defends by demonstrating a neutral reason for the use of a peremptory challenge,
and (3) the defendant proves purposeful discrimination.” Under Batson, prospective jurors only
may be removed on race neutral grounds.!"
A. Empirical Research on Race and Kentucky's Administration of the Death Penalty
Prior to the Kentucky General Assembly's commission of a study on race and the death penalty
in 1992, Professors Thomas Kiel and Gennaro Vito already had conducted a series of
assessments on the effect of race on Kentucky’s death penalty administration.” The first study,
completed in 1988, assessed the effectiveness of Kentucky’s capital sentencing procedures in
curbing both arbitrariness and intentional and unintentional discrimination, first examining
prosecutorial decisions to charge defendants with capital crimes and then examining jury
decisions to impose the death penalty.'* The analysis encompassed a pool of 458 Kentucky
cases where a defendant was indicted for murder and sentenced between December 22, 1976 and
October 1, 1986, and where there was at least one aggravating factor present necessary to make
the case death-eligible.'* Controlling for variables regarding the seriousness of the offense and
the victims’ gender, the study found significant racial disparities in the post-Gregg prosecutorial
decisions to charge a defendant with a capital crime, namely, that prosecutors were significantly
more likely to charge a defendant with a capital crime if the case involved a black offender
killing a white victim.’
A year later, Keil and Vito again looked at racial disparities in Kentucky’s death penalty
administration. This time, they applied the Bamett scale,” a classification system for homicides
10 Batson, 476 U.S. at 93-94.
Md
See, e.g., Gennaro F. Vito & Thomas J. Keil, Capital Sentencing in Kentucky: An Analysis of the Factors
Influencing Decision Making in the Post-Gregg Period, 79 J. CRIM. L. & CRIMINOLOGY 483 (1988) [hereinafter Keil
& Vito I]; Thomas Keil & Gennaro Vito, Race and the Death Penalty in Kentucky Murder Trials, 1976-1991: A
Study of Racial Bias as a Factor in Capital Sentencing, 20 Am. J. CRIM. Just. 17 (1995). Both professors have
published a number of additional articles and assessments relating to race and the death penalty in Kentucky. See,
e.g., Gennaro F. Vito et al., Kentuckians’ Changes in Attitudes Toward Death Penalty, 12 Just. PRoF. 123 (1999);
Thomas J. Keil & Gennaro F. Vito, Factors Influencing the Use of the “Truth in Sentencing” Law in Kentucky
Murder Cases, 20 AM.J. CRIM. Just. 105 (1997).
3 Keil & Vito I, supra note 12, at 494.
Td. at 495 (noting that four eligible cases were excluded due to lack of complete variables involved in the
study).
15 Keil & Vito I, supra note 12, at 502. Of the 140 capital-eligible black offenders, 33.5% had white victims. Id.
at 498. Of the thirty-three black offenders tried for a capital offense, 63.6% had white victims. Id. Seven of the
eight black offenders who received a death sentence (87.5%) had white victims. Id. Only 12.9% of black offenders
who killed black victims faced a death qualified jury. Id. at 498-99. Only 8.3% of black offenders who killed black
victims received a death sentence. Id. at 499. Although the study failed to find a similar black offender/white
victim impact when analyzing jury decisions to impose a death sentence among death-eligible offenders— that is,
“[o]nce a person faces a death qualified jury, factors other than race produce the final disposition’”— Keil and Vito
cautioned that “[t]his finding does not mitigate the evidence of racial effects, because the combination of the race of
the victim and the race of the offender has significant consequences in the determination of who faces a death
qualified jury.” Id. at 503.
© Professor Amold Bamett developed a scale classifying homicides into eighteen different categories based on
measures of three elements: the certainty that the defendant was a deliberate killer, whether the victim was a stranger
12
347
based on degree of seriousness, to determine whether the racially disparate results from the
earlier study were due to those murders being more serious in nature or whether the results
indicated racial bias in prosecutor and jury decision-making.'? Again, black offenders who
killed white victims were significantly more likely to be charged by a prosecutor with a capital
crime than any other racial combination.'® In this study, Keil and Vito also found that, black
offenders who killed white victims were more likely to be sentenced to death by a jury." * The
results indicated that the degree of “heinousness” of the murder failed to explain the disparities.””
In 1990, the first study from 1988 was expanded to control for additional variables, such as the
prior criminal record of the accused and whether the victim and offender were strangers at the
time of the murder.”’ While the earlier study compared only blacks who killed whites with all
other offenders, this study “ma{de] more detailed comparisons across other racial
combinations. ma Additionally, while the initial study analyzed the prosecutor's decision to seek
the death penalty and the jury’s decision to impose the death penalty as “discrete steps in the
capital sentencing process,” the 1990 assessment examined the effect of a prosecutor’s decision
to seek death on juror decision-making to determine the likelihood that defendant would receive
a death sentence once the prosecution decided to proceed capitally.”* Once again, the findings
indicated that both prosecutors and jurors considered cases involving a black offender and white
victim as the most serious type of homicide,” followed by white offender/white victim
homicides, and then black offender/black victim homicides.” The study also found that the risk
of receiving a death sentence was significantly higher for black offenders only when the victim
was white, and not for black offenders as a whole.”° Notably, the study found that, as of 1986,
no white offender who killed a black victim had ever been charged with a capital crime in
Kentucky.””
to the offender, and the heinousness of the killing. See Amold Bamett, Some Distribution Patterns for the Georgia
Death Sentence, 18 U.C. Davis L. REV. 1327 (1985). Because determining these elements may rely on case
summaries “originat{ing] from the descriptions of [] criminal justice officials” whose “language, descriptions, and
judgments” may have been— subconsciously or otherwise— influenced by factors related to race, critics have argued
that the Bamett scale may obscure racial disparities in sentencing. Thomas J. Keil & Gennaro F. Vito, Race,
Homicide Severity, and Application of the Death Penalty: A Consideration of the Barnett Scale, 27 CRIMINOLOGY
511, 514 n.1 (1989) [hereinafter Keil & Vito II].
Keil & Vito II, supra note 16, at 516. Keil and Vito applied the Barnett scale to Kentucky capital sentencing
data to determine whether the measure of homicide severity provided a legitimate explanation for racial disparities
in capital sentencing in Kentucky. Id.
'8 Td. at 520.
8 Td. at 523.
2 Td. at 526.
21 Thomas J. Keil & Gennaro F. Vito, Race and the Death Penalty in Kentucky Murder Trials: An Analysis of
Post-Gregg Outcomes, 7 Just. Q. 189, 193 (1990) [hereinafter Keil & Vito III]. Comparatively, the study by David
Baldus, Charles Pulaski, and George Woodworth that “served as the basis for” the claims alleged in McCleskey
controlled for over 200 variables. Keil & Vito II, supra note 16, at 513.
im Keil & Vito III, supra note 21, at 193.
Id.
4 Keil & Vito III, supra note 21, at 197, 200.
5 Keil & Vito III, supra note 21, at 197.
6 Keil & Vito III, supra note 21, at 205.
27 Keil & Vito III, supra note 21, at 197.
348
A 1991 investigation by Keil and Vito of whether race affected prosecutors’ evaluation of the
seriousness of a murder revealed that, while controlling for other factors, the race of the victim
and defendant, especially where the offender is black and the victim i is white, was directly related
to prosecutors’ evaluation of the seriousness of the homicide.”® In other words, when a homicide
met the legal requirements to be death-eligible, prosecutors considered the offender/victim racial
makeup in assessing the seriousness of the murder and determining whether to pursue the death
penalty.”
In 1992, the Kentucky General Assembly passed Senate Bill 8 requiring the Kentucky Justice
Cabinet and the Kentucky Department of Public Advocacy (DPA) to conduct a study to
determine if racial bias played a role in death sentencing, in Kentucky capital cases and
commissioned Keil and Vito to conduct an additional survey.*” Completed in 1993, the study
sought to re-examine the effect of the race of the victim on the likelihood that an accused
murderer would be charged with a capital crime and the likelihood that such an offender would
be sentenced to death in Kentucky.*! The analysis encompassed a pool of 577 Kentucky cases
between December 22, 1976 and December 31, 1991, where there was a person “charged and
indicted, convicted, and sentenced” by a jury “for murder or a lesser offense,” in which at least
one aggravating circumstance was present in order to make the case death-eligible, and for which
there was complete data on the predictors that measured aggravating circumstances.” The study
controlled for legally relevant variables, including whether the murder occurred during the
course of a felony, whether there were multiple victims killed, whether the accused killed in
order to “silence” the victim, whether the offender had at least one previous conviction for a
violent crime, whether there was more than one aggravator present, and whether the victim and
offender were strangers. **
This study’s findings were consistent with Keil and Vito’s previous work on race and
Kentucky’s capital punishment system.** Although the “study could not determine where the
discrimination occurred or who was responsible,” nor whether there was any geographic effect,
the “research evidence indicated that racial bias did exist in the capital sentencing process. 03
The study revealed that whether the race of the victim affected sentencing depended on whether
the offender was black or white. Specifically, black offenders who killed white victims were 1.5
times more likely to receive the death penalty than black offenders who killed non-white victims,
but whites who killed white victims were no more likely to receive the death penalty than white
offenders who killed non-white victims.*° The study also found that white offenders had to
8 Thomas J. Keil & Gennaro F. Vito, Kentucky Prosecutors’ Decision to Seek the Death Penalty: A LISREL
Model, in THE DEATH PENALTY IN AMERICA: CURRENT RESEARCH 53, 65 (Robert M. Bohm ed., 1991).
Id. at 66.
3° §.B. 8, 1992 REG. SEss., GEN. ASS. (Ky.); Neal, supra note 9, at 13.
31 Thomas H. Keil & Gennaro F. Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976-1991: A
Study of Racial Bias as a Factor in Capital Sentencing, 17 ADvocarE 5, Apr. 1995, at 5 [hereinafter Keil & Vito
IV]. This study also was published in the American Journal of Criminal Justice. Thomas H. Keil & Gennaro F.
Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976-1991: A Study of Racial Bias as a Factor in
Capital Sentencing, 20 AM.J. CRIM. JusT. 17 (1995).
Keil & Vito IV, supra note, at 6-7.
33 Keil & Vito IV, supra note 31, at 7.
34 See Keil & Vito IV, supra note 31, at 8.
3 Vito, supra note 6, at 281 (discussing the author's and Keil’s 1995 study).
3° Keil & Vito IV, supra note 31, at 9.
349
commit a more aggravated offense (i.e., multiple aggravating factors) than black offenders
before a prosecutor decided to seek the death penalty, and that black offenders who killed white
victims were seventy percent more likely to be sentenced to death by a jury than black offenders
who killed black victims.*”
B. The Kentucky Racial Justice Act
In 1998, Kentucky State Senator Gerald Neal sponsored the Kentucky Racial Justice Act (KRJA)
in response to the research findings by Professors Keil and Vito.** “[A]fter two hours of
vigorous debate,” the KRJA passed the Senate by a 22-12 vote on February 5, 1998.°° Four
days later, an identical bill, sponsored by Representative Jesse Crenshaw, was introduced in the
House.”” The legislation passed the House on March 30, 1998 by a 70-23 vote’ and the KRJA
was signed into law by Govemor Paul Patton on May 1, 1998, becoming the nation’s first racial
justice act.”
Effective July 15, 1998, the KRJA provides that “[nJo person shall be subject to or given a
sentence of death that was sought on the basis of race.”“* Under the KRJA, a capital defendant
must establish that race was a “significant factor” in the prosecutor's decision to seek the death
penalty by presenting evidence, including “statistical evidence or other evidence, or both, that
death sentences were sought significantly more frequently [] [uJpon persons of one race than
upon persons of another race; or [] [a]s punishment for capital offenses against ersons of one
race than as punishment for capital offenses against persons of another race.”*” At a pretrial
hearing, the defendant must prove by clear and convincing evidence that that prosecutor's
decision to seek the death penalty was based on race, and the Commonwealth “may offer
evidence in rebuttal.”“° The trial court is required to eliminate the death penalty as a sentencing
option if it “finds that race was the basis of the decision to seek the death sentence.”*”
C. Kentucky's Evaluations of Race and the Criminal Justice System
Td. at 9-10.
38 Neal, supra note 9, at 13-14.
39 Td. at 13-15. In 1996, Senator Neal had unsuccessfully introduced a version of the KRJA. Neal, supra note 9,
at 14-15. In 1996, the legislation eventually passed the House Judiciary Committee, after negotiating the deletion of
the provision making the bill apply retroactively. Id. (noting that Commonwealth attorneys, in opposition to the bill,
attempted to derail the passage of the legislation by introducing thirteen House amendments to the bill, two of which
passed); Alex Lesman, Note and Comment, State Responses to the Specter of Racial Discrimination in Capital
Proceedings: The Kentucky Racial Justice Act and The New Jersey Supreme Court's Proportionality Review
Project, 13 J.L. & PoL'y 359, 376 (2005). See also S.B. 132, 1996 Gen. Assemb., Reg. Sess. (Ky. 1996). However,
despite the extensive negotiations, the 1996 Senate Bill 132 was ultimately defeated on the Senate floor by an 18-16
vote. Neal, supra note 9, at 14.
40 Neal, supra note 9, at 14.
"Td. at 15.
2 Ky. REV. STAT. ANN. §§ 532.300-.309 (West 2011); Amold, supra note 72, at 102.
‘43 Ky. REV. STAT. ANN. § 532.305 (West 2011) (“[The KRJA] shall not apply to sentences imposed prior to July
15, 1998.”).
“Ky. REV. STAT. ANN. § 532.300(1) (West 2011). See also Ky. REV. STAT. ANN. § 532.309 (West 2011) (noting
that “KRS 532.300 to 532.309 shall be cited as the Kentucky Racial Justice Act”).
© Ky. REV. STAT. ANN, § 532.300(3)-(4) (West 2011).
“© Ky. REV. STAT. ANN, § 532.300(4)-(5) (West 2011).
“Ky. REV. STAT. ANN. § 532.300(4) (West 2011).
350
Since Batson and McCleskey, Kentucky has undertaken a number of initiatives to investigate and
address racial disparities and discrimination in the Commonwealth’s criminal justice system.
For example, in 1992 then-Kentucky Supreme Court Chief Justice Robert Stevens established
the Kentucky Racial Bias Task Force that investigated, over a number of years, the perceptions
of racial bias in the court system of people convicted of felony offenses, including small claims
plaintiffs, and domestic violence respondents.*® Ultimately, the Task Force released a report
with recommendations in 1997."° In 2001, former Kentucky Supreme Court Chief Joseph
Lambert created the Jefferson County Commission on Racial Faimess to examine racial
disparities within the criminal justice system in Jefferson County.°° Among other investigations,
the Commission examined sentencing disparities in anisdemeanor and felony convictions based
on race,” saci disparities in pretrial release rates,” and the racial composition of the county
judiciary.
For further discussion about Kentucky’s investigations and evaluations on the impact of racial
considerations in the criminal justice system, see Recommendation #1.
48 DARREN WARNER, DOES RACE MATTER?: EXAMINING THE PERCEPTIONS OF COURT-USERS ON THE FAIRNESS OF
THE KENTUCKY Courts (1997); Neal, supra note 9, at 21 (quoting REPORT OF THE Ky. RACIAL BIAS TASK FORCE,
supra note 81, at 13).
©" Id.
50 Andrew Wolfson & Gregory A. Hall, Study Sees Racial Bias, CouRIER-J. (Louisville, Ky.), July 29, 2003, at
Al. The Jefferson County Commission on Racial Fairness continues to investigate and advocate against racial
disparities in the county’s court system. See, e.g., Press Release, Fairness Commission Calls for Leaders to Appoint
Qualified Minorities to Kentucky Judgeships, Ky. Ct. of Justice (Mar. 18, 2009), available at
http://migration.kentucky.gov/newsroom/kycourts/PR03182009A .htm (last visited Nov. 16, 2011) (calling for
leaders to appoint qualified minorities to Kentucky judgeships).
51 Andrew Wolfson & Gregory A. Hall, Study Sees Racial Bias, CouRIER-J. (Louisville, Ky.), July 29, 2003, at
Al.
52
53
Al.
Latest Kentucky News, AP ALERT, June 20, 2006.
Andrew Wolfson & Gregory A. Hall, Study Sees Racial Bias, CouRIER-J. (Louisville, Ky.), July 29, 2003, at
351
II, ANALYSIS
A. Recommendation #1
Jurisdictions should fully investigate and evaluate the impact of racial
discrimination in their criminal justice systems and develop strategies that strive to
eliminate it.
The Commonwealth of Kentucky has undertaken initiatives to investigate and evaluate the
impact of racial discrimination in its criminal justice system, including commissioning in 1992
an analysis of the effect of race on capital sentencing.” Kentucky also has developed strategies
for eliminating racial discrimination in the court system, and specifically in capital cases, such as
the adoption of the Kentucky Racial Justice Act (KRJA) in 1998.
Empirical Evaluations of Racial Bias in Kentucky’s Capital Sentencing Scheme
From 1988 to 1995, two University of Louisville professors, Thomas J. Keil and Gennaro F.
Vito, conducted several studies investigating racial disparities within Kentucky’s death penalty
system.*° The first two studies identified racial disparities, including a significantly higher
likelihood that a prosecutor will proceed capitally if the case involved a black offender and a
white victim.*” The second study also found that black offenders who killed white victims were
more likely to be sentenced to death by ajury.** In 1990, their examination of race and the death
penalty was expanded to control for additional variables and continued to illustrate that black
offenders who kill white victims are more likely to receive the death penalty.” This third study
showed that both prosecutors and juries consider a murder involving a black offender and white
victim as the most serious type of homicide, followed by white offender/white victim homicides,
and then black offender/black victim homicides.* The study also found that the risk of
receiving a death sentence was significantly higher for black offenders only when the victim was
white, and not for black offenders as a whole.*' Homicides in which white victims were killed
were viewed as the most serious.
Finally, in 1992 the Kentucky General Assembly commissioned Keil and Vito to study “the
effect of race of the victim on the probability that an accused murderer is charged with a capital
51 Vito, supra note 6, at 276 (“Our study was commissioned by the 1992 Kentucky General Assembly.”).
® See Ky. REV. STAT. ANN. §§ 532.300-.309 (West 2011).
See, e.g., Keil & Vito I, supra note 12; Keil & Vito II, supra note 16; Keil & Vito IV, supra note 31. See also
Leigh B. Bienen, The Proportionality Review of Capital Cases by State High Courts After Gregg: Only “The
Appearance of Justice,” 87 J. CRIM. L. & CRIMINOLOGY 130, 238 n.418 (1996) (listing the extensive research on
race and Kentucky’s capital punishment system); David C. Baldus & George Woodworth, Race Discrimination in
the Administration of the Death Penalty: An Overview of Empirical Evidence with Special Emphasis on Post-1990
Research, 39 Crim. L. BULL. 194, 213 (2003) (noting that in post-Furman studies in Kentucky researchers
documented that black defendants whose victims were white were at particular risk of more punitive treatment). For
a discussion on Professors Keil and Vito's empirical studies, see supra notes 12-37 and accompanying text.
57 Keil & Vito I, supra note 12, at 502; Keil & Vito II, supra note 16, at 520.
58 Keil & Vito II, supra note 16, at 523.
53° Keil & Vito III, supra note 21, at 204.
Id. at 197, 200.
®! Td. at 205.
° Id.
56
352
crime and sentenced to death in Kentucky.”®* Since the death penalty was reinstated in 1976
until the time Keil and Vito undertook the investigation in 1992, forty-three death sentences had
been imposed in Kentucky.™ In only two of these cases was the victim black (4.7%), and the
remaining forty-one cases (95.3%) had white victims. Controlling for a number of legally
relevant factors, the study found race still persisted as a factor in Kentucky capital sentencing.”
Specifically, “blacks accused of killing whites had a higher than average probability of being
charged with a capital crime (by the prosecutor) and sentenced to die (by the jury) than other
homicide offenders.”°’ Capital charges were most likely sought against blacks who killed whites
(45% of these cases), followed by whites who killed whites (28% of these cases), and whites
who killed blacks (17% of these cases). Keil and Vito also found that none of the whites who
killed blacks actually received a death sentence, while blacks who killed whites “had the highest
percentage of cases receiving a death sentence from the jury (12% [of these cases]).”* Keil and
Vito suggested several reasons why prosecutors were more inclined to seek the death penalty
against a black defendant, “including ease of conviction, . . . political and/or media pressure, or
the greater social visibility of cases where blacks kill whites.”””
Based on their research, Keil and Vito ultimately concluded that
[w]hen the entire body of potentially capital cases are considered, race clearly
emerges as a crucial factor in capital sentencing in Kentucky. It is a factor that
cannot be accounted for by its interrelationship with other legally relevant
variables. Kentucky’s ‘guided discretion’ system of capital sentencing has failed
to eliminate race as a factor in this process... . Kentucky’s system of capital
sentencing is fraught with discrimination that defies identification, elimination or
control.
Enactment of Kentucky’s Racial Justice Act
Kentucky legislators responded to Keil and Vito's findings by proposing the enactment of a
racial justice act, eventually adopted in 1998.”” The KRJA was the first of two such acts to have
8 Keil & Vito IV, supra note 31, at 5.
* Id
65 Id. at 5-15; see also Email Interview by Sarah Turberville with Gennaro F. Vito, Professor, Univ. of Louisville
(July 8, 2011) (on file with author).
% Keil & Vito IV, supra note 31, at 7. The Keil and Vito study commissioned by the Kentucky legislature
controlled for the following factors: (1) whether the murder occurred in conjunction with the commission of a
felony; (2) whether the murder involved multiple victims; (3) whether the accused killed in order to silence the
victim; (4) whether the offender had a prior criminal history (i.e., had at least one previous conviction for a violent
crime); (5) whether there was more than one statutory aggravator present; and (6) whether the victim and offender
were strangers. Id.
7 Id. at5.
68 Id. at 8 (in Table 2, and for each “Race of Offender-Race of Victim” row, summing the percentages from
columns titled “Capital Charges” and “Death Sentence”).
59 Td. (emphasis omitted).
7 Keil & Vito IV, supra note 31, at 12.
7 Td. at 13,
™ See Ky. REV. STAT. ANN. §§ 532.300-.309 (West 2011); Vito, supra note 6, at 276-77 (“In response to the
study, Kentucky Senator Gerald Neal of Louisville and Representative Jesse Crenshaw of Lexington sponsored the
Kentucky Racial Justice Act”); Neal, supra note 9, at 13-14 (noting that attempts to pass the KRJA failed in the
1994 and 1996 Kentucky legislative sessions); Justin R. Amold, Note, Race and the Death Penalty After
353
been adopted by any state” and provides that “[nJo person shall be subject to or given a sentence
of death that was sought on the basis of race.””" The KRJA permits a capital defendant to
introduce evidence, including statistical evidence, of racial discrimination in the prosecutor's
decision to seek the death penalty.” If successful, the KRJA requires the trial court to remove
the death penalty as a sentencing option.” For further discussion of the KRJA, see
Recommendations #4 and #5.””
Senator Neal’s Survey on the KRJA
In September 2002, State Senator Gerald Neal conducted a survey of Kentucky’s public
defenders to investigate the effect of the 1998 KRJA.”° When asked to describe the
implementation of the KRJA, sixty-four public defenders responded, four of whom said they had
a case involving the KRJA and eight who noted that they were aware of another attomey raising
KRJA provisions.” The survey showed mixed reviews of the KRJA. Many responders
applauded the symbolic meaning of the KRJA while others noted an unintended “negative”
consequence of its adoption: “[T]he essential effect is that prosecutors have adopted policies of
pursuing death in every eligible case, rather than making a case by case determination” in order
to avoid a potential challenge under the KRJA.™
Other Initiatives Investigating Racial Disparities in K entucky’s Criminal Justice System
In addition to the Keil and Vito studies, the Commonwealth of Kentucky has undertaken various
other initiatives that seek to investigate and evaluate the impact of and/or strive to eliminate
racial discrimination in the criminal justice system. However, only a few of these initiatives
have occurred since the 1998 adoption of the KRJA, and none has fully investigated racial
discrimination with respect to the Commonwealth’s entire criminal justice or death penalty
system.
Kentucky Racial Bias Task Force
McCleskey: A Case Study of Kentucky's Racial Justice Act, 12 WASH. & LEE J. Civ. Rts. & Soc. Just. 93, 102
(2005). The enactment of the KRJA by the Kentucky General Assembly occurred after several failed attempts by
the U.S. Congress to enact similar legislation. Id. at 95-98. “The passage of the Racial Justice Act in Kentucky was
a six-year effort, beginning with the commissioning of the study of racial bias in the capital sentencing process in
1992....” Jim Wayne, Racial Bias in Capital Sentencing, 180 Am. 11, 12 Jan. 2, 1999.
73 Since then, North Carolina has adopted another version of a racial justice act. For a comparison of the two, see
Recommendations #4 and #5, infra.
7 Ky. REV. STAT. ANN. § 532.300 (West 2011).
; Ky. REV. STAT. ANN. § 532.300(3)-(4) (West 2011)
Id.
See Recommendations #, #5, and #10, infra; see also Factual Discussion, supra.
7 Neal, supra note 9, at 15-19.
Td. at 15.
Id. at 16; see also id. at 16-19 (listing other defenders’ responses, which noted prosecutors’ practices of
charging death in every eligible case or more often than before the adoption of the KRJA); Vito, supra note 6, at 279
(“One noted negative effect of the [K]RJA is that prosecutors have adopted policies to seek the death penalty in
every eligible case, rather than making this decision on a case-by-case basis. This effectively destroys all bias.”).
Senator Neal also reported that, in his survey, “[m]any prosecutors have said that the solution to complying with the
[KRJA] is to seek death in every case that can be prosecuted as a capital cases. Many have followed that promise
but others have not.” Neal, supra note 9, at 20.
354
In 1997, the Kentucky Racial Bias Task Force (Task Force), initially established in 1992 by
then-Kentucky Supreme Court Chief Justice Robert F. Stephens, and the Administrative Office
of the Courts (AOC), issued a report.®! The study surveyed 10,000 people involved in
misdemeanor, domestic violence, and small-claims cases to determine whether court-users
“perceive racial bias among judges, prosecutors, defense lawyers[,] and other court personnel.”*”
The report concluded that, “[iJn the final analysis, the social problem of racial disparity continues
to influence and even cloud the judiciary.”® The Task Force also surveyed prison inmates about
racial bias in the court system and concluded that “Kentucky courts need more minorities [on]
their staffs to make the judicial system more sensitive to racial issues,” and recommended that
the courts provide “racial sensitivity training for all court employees, including attorneys.”™
Additionally, the Task Force recommended that the Commonwealth implement a system of
“continuing assessment of potential racial bias in the courts.”
Legislation Effecting Racial Discrimination in Jury Composition
Until 1990, Commonwealth jurors were selected solely from voter registration lists by jury
commissioners,”° and as a result, “throughout most of [Kentucky’ s] history[,] racial minorities
and women have been functionally excluded from jury service.”®” During the jury commissioner
system, capital defense attomeys challenged the composition of jones, alleging that women,
blacks, and young adults were “substantially under-represented.”*® In response, in 1991 the
Kentucky General Assembly reformatted its jury selection process and designated the AOC to
annually obtain and update lists of prospective jurors to consist of voters and licensed drivers.®*
In 2002, the Commonwealth added persons filing tax returns in Kentucky to the master list of
prospective j jurors.”
81 DARREN WARNER, DOES RACE MATTER?: EXAMINING THE PERCEPTIONS OF COURT-USERS ON THE FAIRNESS OF
THE KENTUCKY CourTs (1997).
® Brenda Rios, State Will Ask 10,000 If Courts Racially Biased, LEXINGTON HERALD-LEADER, Dec. 28, 1996, at
Al. The study was federally funded by the State Justice Institute, an organization providing funding to courts
nationwide for conducting civic projects. Id. (noting that Kentucky's Racial Bias Task Force examined other state
studies “to decide on the form their survey would take”).
83 Neal, supra note 9, at 21 (quoting REPORT OF THE KY. RACIAL BIAS TASK FORCE, supra note 81, at 13) (intemal
otations omitted).
: Task Force Says Courts Need More Minorities, LEXINGTON HERALD-LEADER, Sept. 12, 1997, at B6.
> Id.
8 Ky. Rev. STAT. ANN. § 294.040 (West 1990); H.B. 349, 1990 Gen. Assemb., Reg. Sess. (Ky. 1990). Prior to
1990, KRS 29A .040(1) stated:
All voter registration lists shall constitute a master list of prospective jurors. Where possible, the
jury commission shall acquire copies of these lists from the official having custody of the required
lists. The jury commission shall consult the master list in the manner specified by KRS 29A.050
in the selection of prospective jurors.
8
Id.
87 Tim Amold et al., Challenging the Venire, 30 ADVOCATE 35, May 2008, at 35 (stating that Kentucky’s system
of jury commissioners was very similar to a system the U.S. Supreme Court found unconstitutionally discriminatory
in Castaneda v. Partida, 430 U.S. 482 (1977)).
Id.
89 Ky. REV. STAT. ANN. § 29A.040 (West 1990); Amold, supra note 87, at 35; Tim Amold & Gail Robinson, Jury
Pool Issues, 26 ADVOCATE 3, May 2004, at 10-15 (discussing problems in obtaining a racially diverse jury and
suggesting ways defense counsel can challenge the system to obtain a jury representing a “fair cross section of the
community”).
® See Ky. REV. STAT. ANN. § 29A.040 (West 2011); H.B. 781, 2002 Gen. Assemb., Reg. Sess. (Ky. 2002).
355
Jefferson County Commission on Racial Fairness
During his tenure, former Kentucky Supreme Court Chief Justice Joseph E. Lambert undertook a
number of examinations to address racial discrimination in the Commonwealth's criminal justice
system.’ In 2001, Justice Lambert created the Jefferson County Commission on Racial Fairness
(Commission) to study and address racial disparities within Jefferson County.” The
Commission was appointed after activists in 2000 condemned the sentencing disparities
demonstrated by two high-profile cases in Jefferson County.°* In one case, a fifteen-year-old
African-American had shot his brother in a fight over a video game, was convicted of wanton
murder and sentenced to twenty-two years in prison, and initially denied probation.’ In the
other case, a nineteen-year-old white female pled guilty and was given shock probation after
receiving a ten-year sentence for manslaughter for killing two people in a drunk-driving wreck.”
Consequently, the Commission examined sentencing differences for misdemeanor and felony
charges based on race,” racial disparities between pretrial release rates,*” and the composition of
the county judiciary.”
In 2003, the Commission undertook another study of sentencing in shoplifting, drug trafficking,
and possession cases and found that A frican-A mericans were seventy-one percent more likely to
be sent to jail or prison for cocaine possession than other races and 168 percent more likely to be
sent to jail or prison for possession of drug paraphernalia charges."° In June 2006, the
Commission conducted a study including judges, attorneys, and activists and found that “blacks
are more likely than whites to be held in jail until their trials,” although they suggested this
discrepancy may be due to income and community ties rather than racial bias.’ The
Commission ultimately recommended that Jefferson County “look at pretrial release so that
blacks are treated fairly.”'°' However, we are unaware of the jurisdiction undertaking any
related research since this recommendation. In December 2008, the Commission examined the
"For example, in 2005, Justice Lambert, speaking at an annual meeting of circuit court judges, “challenged the
judges to eliminate bias based on race and other characteristics such as religion, sexual orientation, gender and
ethnicity.” Editorial, Equality in the Courtroom, CINCINNATI-KY. Post, Oct. 19, 2005, at A14.
82 Justice Lambert repeatedly “encouraged judges and lawyers to refrain from racially discriminatory practices
while conducting business before the Kentucky Court of Justice.” Frankie Gamber, Louisville NAACP Rallies to
Get More African Americans on Juries, NAACP Crisis, May 1, 2006, at 58; Editorial, Equality in the Courtroom,
CINCINNATI-KY. Post, Oct. 19, 2005, at A14 (discussing Justice Lambert's call “for a renewed focus on racial
faimess in the courtroom” and recent initiatives, such as the Office of Minority Affairs, designed to implement this
ideal); Andrew Wolfson & Gregory A. Hall, Study Sees Racial Bias, CouRIER-J. (Louisville, Ky.), July 29, 2003, at
Al. See also Keri E. Hieneman, Women in the Judiciary: Kentucky’s Need for Change, 42 BRANDEIS LJ. 447
(2004) (discussing the few women in the Kentucky judiciary system).
8 Andrew Wolfson & Gregory A. Hall, Study Sees Racial Bias, CourRIER-J. (Louisville, Ky.), July 29, 2003, at
can
© Id
° Id.
57 Latest Kentucky News, AP ALERT, June 20, 2006.
88 Andrew Wolfson & Gregory A. Hall, Study Sees Racial Bias, CouRIER-J. (Louisville, Ky.), July 29, 2003, at
91a.
in Latest Kentucky News, AP ALERT, June 20, 2006.
Id.
356
racial composition of the Jefferson County judiciary’ and adopted a resolution noting that, as of
January 2009, there were only two non-white sitting trial court judges, both of whom were
retiring and transitioning to Senior Status.'°° All of the remaining judges in the County’s forty
trial courts were white.’ The Resolution ultimately called “for a judiciary that represents the
racial diversity of our population.”
In 2005-06, the Commission, in conjunction with the Louisville chapter of the NAACP,
addressed the issue of the composition of Kentucky’s jury pools. Judges, attorneys, and activists
from the Commission worked with scholars and activists from the NAACP to address racial
disparities in the composition of the jury pools in Kentucky cases, ultimately recommending to
the Kentucky Court system various remedial and preventative strategies to address the
disparities." The investigation found that there continued to be a “low representation of
A frican[-]A mericans on county juries,” and made several recommendations to the AOC with the
goal of increasing A frican-A merican jury participation, including increasing pay, shortening jury
service, and adopting a public relations campaign.'°’ Similarly, the Commission suggested that
Jefferson County study the county’s “pretrial release so that blacks are treated fairly,”!°° which
the AOC’s Department of Pretrial Services released in 2011.1
Kentucky Court of J ustice Office of Minority Affairs
Former Chief Justice Lambert also created the Office of Minority Affairs (OMA) to combat
racial discrimination within the criminal justice system. For example, OMA’s mission is “to
ensure that court system policies and procedures do not discriminate based on race, creed,
religion, color, gender, sexual orientation, age, disability[,] or national origin.”1"° The OMA
also educates the public and groups within the Commonwealth on “the importance of
participating in jury service and recruiting minorities to the legal profession.”'!! The OMA
initiatives include the Minority Speakers Bureau, which educates judges and other court
personnel on issues affecting minorities, the Minority Law Clerk Recruitment Program, which
10. Andrew Wolfson & Gregory A. Hall, Study Sees Racial Bias, CourtER-J. (Louisville, Ky.), July 29, 2003, at A1
(noting that as of 2003, only one circuit judge and two district judges in Jefferson County were A frican American).
103 RESOLUTION, COMM’N ON RACIAL FAIRNESS IN THE CourTS, Jan. 23, 2009, available at
http://migration.kentucky.gov/NR/rdonlyres/54878A 2B-3013-4688-A 40E-
825974475005/ '184178/RacialFaimessCommissionResolution12309.pdf.
105 ie
106 Frankie Gamber, Louisville NAACP Rallies to Get More African Americans on Juries, CRISIS, May 1, 2006, at
Be Id.
108 Latest news from Kentucky, ASSOCIATED PRESS, June 20, 2006.
109 CLE Materials for Pretrial Release in Kentucky: Challenges and Opportunities, Where Are We Now and What
is the Future?, Lexington, Ky., June 15, 2011 (on file with author) (including a copy of the AMENDED EXECUTIVE
SUMMARY: UNIFORM SCHEDULE OF BAIL PILOT PROJECT REPORT FOR 2010 YEAR END REPORT, FINDINGS AND
RECOMMENDATIONS) (examining data from the Pretrial Release Information Management (PRIM) system and
making recommendations based on all 37,573 arrests between January 1, 2010 through December 31, 2010, in
which 22,560 defendants obtained some form of pretrial release (sixty percent)).
110 Office of Minority Affairs, ADMIN. OFFICE OF THE CTS., Ky. Cr. OF JUSTICE, http://courts.ky.gov/aoc/personnel/
minorityaffairs/default.htm (last visited May 5, 2011).
‘11 Td. (noting that it has addressed entities including the Kentucky Chapter of the NAACP, Justice Resource
Center, local chapters of the Urban League, and minority chapters of the Kentucky Bar Association).
357
encourages minority students to apply for the clerkships, and civil engagement, which provides
community outreach “to educate the public about the courts and foster partnerships among the
courts and communities.”!!” Other initiatives include a minority recruitment program, which
promotes diversity in the legal profession by offering internships and job opportunities to
minorities, and a mentorship program, which pair minority law students with law school
placement offices and KBA members.'!°
Other Commonwealth Initiatives
Other entities, including newspapers in the Commonwealth, have investigated racial
discrimination in the court system and recommended potential remedies. For example, in 2005,
the Louisville Courier-J ournal conducted a study of Jefferson County jury composition, finding
that “[p]eople who live in predominantly African-American areas are less likely to serve on
juries than those who live in mostly white areas.”!"4 The Courier-Journal suggested that this
may occur because (a) prosecutors and defense attommeys may exclude black jurors in criminal
cases, (b) many blacks distrust the criminal justice system and are less likely to report for jury
duty, and (c) blacks cannot afford to serve as jurors because jury pay is so low.'!° Additionally,
a 2005 editorial noted various “allegations of discrimination and bias” against the
Commonwealth's court system, including “[c]harges against the Jefferson County court system
[that] were serious enough to warrant an investigation in 2001, . . . an investigation that partially
validated the charges.”'!® The editorial recommended that “periodic studies of sentencing and
the like should be done by the courts themselves on their own volition.” "7
The Kentucky Bar Association’s (KBA) Diversity in the Profession Committee also addresses
issues pertaining to minorities in the legal profession, but there is no specific entity within the
KBA that addresses racial disparities within K entucky’s criminal justice system.!'® However, in
2008, 2009, and 2010, the KBA held continuing legal education (CLE) courses during its annual
convention on race and the death penalty, and it held a CLE course in 2011 on the racial
disparities within the Commonwealth’s pretrial release practices. !!°
Conclusion
The extensive evaluations conducted by Professors Keil and Vito and Kentucky’s subsequent
adoption of the KRJA, represent a significant achievement in the fight against racial
discrimination in the Commonwealth’s criminal justice system. As Recommendation #1
suggests, both the Commonwealth and independent entities within Kentucky have initiated
112 Id.
"3" Telephone Interview by Paula Shapiro with Priscilla Johnson, Minority Affairs Officer, Ky. Court of Justice
Office of Minority A ffairs (May 20, 2011) (on file with author).
14 Jason Riley, Jury Not of Their Peers: Blacks Being Excluded from Louisville Juries, CoURIER-J. (Louisville,
Ky), Nov. 6, 2005, at A1 (analyzing 34,000 residents summoned for jury duty over the period of twelve months).
° Id.
i Editorial, Equality in the Courtroom, CINCINNATI-KY. Post, Oct. 19, 2005, at A14.
Id.
48 Telephone Interview by Paula Shapiro with John Meyer, Executive Dir, Ky. Bar Ass’n (June 3, 2011) (on file
with author).
09" Td.; see also supra note 109.
358
investigations into the impact of racial discrimination in the criminal justice system. However,
since the adoption of the KRJA, Kentucky has not made any effort to investigate the continued
presence of racial discrimination within the Commonwealth’s criminal justice system.
Therefore, the Commonwealth of Kentucky only partially complies with Recommendation #1.
The Kentucky Death Penalty Assessment Team applauds the work that has been conducted by
various Commonwealth entities investigating racial discrimination within the criminal justice
system. The Assessment Team recommends that the Commonwealth thoroughly reexamine the
impact of racial discrimination in capital sentencing since the adoption of the KRJA in 1998 to
determine what effect, if any, the KRJA has had on ameliorating racial discrimination in capital
cases.
B. Recommendation #2
Jurisdictions should collect and maintain data on the race of defendants and
victims, on the circumstances of the crime, on all aggravating and mitigating
circumstances, and on the nature and strength of the evidence for all potential
capital cases (regardless of whether the case is charged, prosecuted, or disposed of
as a capital case). This data should be collected and maintained with respect to
every stage of the criminal justice process, from reporting of the crime through
execution of the sentence.
To the best of our knowledge, no jurisdiction or entity within the Commonwealth collects and
maintains the data as prescribed by Recommendation #2.
However, pursuant to KRS 532.075(1), in a case where the death penalty has been imposed, the
Commonwealth requires the circuit court clerk to collect and transmit to the Kentucky Supreme
Court for review the entire trial record and transcript, a notice prepared by the clerk, and a report
prepared by the trial judge.’ The “trial judge report,” which is in the form of a standard
questionnaire prepared by the Kentucky Supreme Court, must be filled out by the trial court
judge in every case where the death penalty is imposed.’*! The trial judge reports are filed and
maintained by the AOC in any case in which a death sentence is imposed.'”” However, we were
unable to obtain a copy of a blank or completed form to determine what information is included
120 Ky. Rev. STAT. ANN. § 532.075(1) (West 2011) (requiring the transmittal to occur within ten days after
receiving the transcript). The notice prepared by the clerk includes the “title docket number of the case, the name of
the defendant and the name and address of the attorney, a narrative statement of the judgment, the offense, and the
punishment prescribed.” Id. This provision of the KRS applies only to cases in which the death penalty was
imposed, not to cases in which the death penalty was sought or could have been sought.
Id.
122 Ky. REV. STAT. ANN. § 532.075(1) (West 2011); Telephone Interview by Paula Shapiro with Susan Clary,
Clerk and General Counsel, Ky. Supreme Court (Apr. 27, 2011) (on file with author). See also Ex Parte Farley, 570
S.W.2d 617, 627 (Ky. 1978) (holding that materials collected and maintained pursuant to KRS 532.075 are available
to the public only after the Court has “the occasion and opportunity to examine and consider them ourselves. Until
then, they are in the same category as any other source of knowledge or information,” meaning that the records are
kept confidential by the Kentucky Supreme Court). See also Email from Leigh Amne Hiatt to Gennaro F. Vito,
Professor, Univ. of Louisville (June 6, 2011) (on file with author) (“Currently, we can only track those cases where
the death penalty has been imposed. This data is reliable as of July 1, 1995, and forward.”); Ky. REV. STAT. ANN. §
532.075(6)(a) (West 2011).
359
in the trial judge report, nor were we able to determine if the trial judge reports are on file with
the AOC for every case in which a death sentence was imposed.
Furthermore, the AOC does not maintain data on cases where the prosecutor has given notice of
intent to seek the death penalty, and the Kentucky Assessment Team is unaware of any entity,
within the Kentucky court system or otherwise, that keeps track of this information.’ Various
other state agencies possess data relevant to the requirements of this Recommendation.'™
However, no entity within the Commonwealth currently collects and maintains the information
included in this Recommendation, systematically or on an ad hoc basis, with respect to every
stage of the capital process.
Based on this information, the Commonwealth is not in compliance with Recommendation #2.
Without a statewide entity that collects data on all death-eligible cases in the Commonwealth,
Kentucky cannot guarantee that its system ensures proportionality in charging or sentencing, nor
can it determine the extent of racial or geographic bias in its capital system. From a practical
23 Email from Leigh Anne Hiatt to Gennaro F. Vito, Professor, Univ. of Louisville (June 6, 2011) (on file with
author) (“The Kentucky Court of Justice case management system does not have a code to capture if or when a
motion to proceed capital or a motion to seek the death penalty is filed.”). However, KRS 532.075(6) does require
the AOC “[t]o accumulate the records of all felony offenses in which the death penalty was imposed after January 1,
1970, or such earlier date as the court may deem appropriate” and “[t]o compile such data as are deemed by the
Chief Justice to be appropriate and relevant to the statutory questions conceming the validity of the sentence.” Ky.
REV. STAT. ANN. § 532.075(6)(a), (c) (West 2011).
24 The AOC is the entity responsible for collecting the trial judge reports. Ky. Rev. STAT. ANN. § 532.075(1)
(West 2011). For their study on the effect of race on capital charging and sentencing decisions, Professors Keil and
Vito relied upon a computerized list compiled by the AOC that listed offenders indicted for murder. Keil & Vito I,
supra note 12, at 496. The Kentucky Department of Public Advocacy and the Louisville Jefferson County Public
Defender Corporation have maintained some data on capital cases, but there is no systematic collection of data
either required or conducted of which the Assessment Team is aware. Interview by Sarah Turberville and Paula
Shapiro with the Dep't of Public Advocacy (DPA) (Oct. 12, 2010) (on file with author); Interview by Sarah
Turberville and Paula Shapiro with Daniel T. Goyette, Chief Public Defender, Louisville-Jefferson County Public
Defender Corporation (Oct. 12, 2010) (on file with author). DPA has previously provided Professors Keil and Vito
with a list of cases where a death-qualified jury was used. Keil & Vito I, supra note 12, at 495-96. The Kentucky
Department of Corrections (DOC) also maintains presentence investigation reports (PSI), which include the race of
the defendant and information about the offense and the offender’s prior criminal history, among other information.
Ky. Rev. STAT. ANN. § 532.050 (West 2011); Presentence/Postsentence Investigation Report, Div. of Probation &
Parole, Ky. Dep't of Corr. (on file with author). For their 1988 study, Professors Keil and Vito relied on the
Kentucky Corrections Cabinet (now the Kentucky DOC) PSIs as their primary source of data. Keil & Vito I, supra
note 12, at 495. The DOC’s Offender Management System (OMS), the case management program by which the
DOC maintains their records on all offenders, also may include information relevant to this Recommendation.
However, OMS is not available to the public and we were unable to confirm what specific information is included in
the system. Telephone Interview by Paula Shapiro with Cyndi Heddleston, Program Adm’r, Ky. Dep’t of Corr.
(June 6, 2011) (on file with author). The DOC also maintains an updated list of all inmates on death row, which
includes the inmate’s date of birth, sentencing date, and some information about the circumstances of the crime.
Profiles of Kentucky Death Row Inmates, Ky. DEP’T OF Corr.,
http://www. corrections.ky.gov/inmateinfo/deathrow.htm (last visited May 24, 2011). Separately, the DOC’s
Offender Online Lookup System provides information on death row and other inmates, including their name, age,
race, and gender. See Offender Online Lookup System, Ky. DeEp’T OF Corr,
http://apps.corrections.ky.gov/KOOL/ioffsrch.asp (last visited May 27, 2011). These profiles do not, however,
include information about the race of the victim, aggravating or mitigating circumstances, or the nature and strength
of the evidence in each inmate’ s case.
360
standpoint, the lack of data collection and reporting on the overall use of capital punishment in
Kentucky makes it impossible for the Commonwealth to determine whether such a system is
operating effectively and efficiently.
Therefore, the Kentucky Assessment Team recommends that the Commonwealth establish a
statewide clearinghouse to collect data on all death-eligible cases, at all stages of a capital case,
on the race of defendants and victims, on the circumstances of the crime, on all aggravating and
mitigating circumstances, and on the nature and strength of the evidence. In tum, this data
should be made available to the Kentucky Supreme Court for use in conducting meaningful
proportionality review’ and to prosecutors for use in making charging decisions and setting
charging guidelines.
C. Recommendation #3
Jurisdictions should collect and review all valid studies already undertaken to
determine the impact of racial discrimination on the administration of the death
penalty and should identify and carry out any additional studies that would help
determine discriminatory impacts on capital cases. In conducting new studies,
states should collect data by race for any aspect of the death penalty in which race
could be a factor.
As mentioned in the Factual Discussion, Professors Keil and Vito conducted several studies of
the effect of race on capital decision-making in Kentucky and were later commissioned by the
Commonwealth to undertake an additional examination of the impact of racial discrimination on
the administration of the death penalty.'2° In 1998, the KRJA was enacted in response to
Professors Keil and Vito's findings.
However, since the adoption of the KRJA Kentucky has failed to conduct any systematic
evaluation of the utility and effectiveness of the Act in ferreting out racial discrimination in its
system of capital sentencing.'?” Therefore, the Commonwealth of Kentucky only partially
complies with Recommendation #3.
In 2010, Professor Vito concluded that Kentucky has “a problem in the cases where black
defendants were charged with the capital murder of white victims,” and suggested that the
Commonwealth should undertake an additional study of the system.'*° Specifically, he noted
that the Kentucky Supreme Court should “focus its [mandatory proportionality] review on this
class of cases— capital convictions where blacks were charged with killing whites.”° “Taken
@5 Ky. REV. STAT. ANN. § 532.075(3) (West 2011). The Kentucky Supreme Court will review every death
sentence to determine whether (1) the sentence of death was imposed under the influence of passion, prejudice, or
any other arbitrary factor; (2) the evidence supports the jury’s or judge’s finding of statutory aggravating
circumstance(s); and (3) the sentence of death is excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant. Id.
126 See Factual Discussion, supra notes 12-37 and accompanying text; Vito, supra note 6, at 276.
27 See Recommendation #1, supra notes 54-119 and accompanying text; Recommendation #4, infra notes 146-
159 and accompanying text.
128 Vito, supra note 6, at 285.
29" Td. (“What happened in the process of these cases in terms of the provision of super due process— particularly
the conduct of the entire trial process? This information could thus allow the court to concentrate their time and
361
together,” Professor Vito explained, “the Kentucky Racial Justice Act and a comparative
proportionality review process informed by statistical analysis have the potential to eliminate the
impact of racial bias in the capital sentencing process.”'*” However, to the best of the Kentucky
Assessment Team’s knowledge, no entity within the Commonwealth has taken any follow-up
steps on this recommendation.
Given that the KRJA was enacted over a decade ago, and most studies preceding its enactment
were developed over two decades ago, it is imperative that the Commonwealth conduct a new
study to determine whether race is a factor in any aspect of Kentucky’s administration of the
death penalty since 1998. In order to achieve this, Kentucky must, as described in
Recommendation #2, collect data on the race of defendants and victims, on the circumstances of
the crime, on all aggravating and mitigating circumstances, and on the nature and strength of the
evidence for all potential capital cases (regardless of whether the case is charged, prosecuted, or
disposed of as a capital case).
D. Recommendation #4
Where patterns of racial discrimination are found in any phase of the death penalty
administration, jurisdictions should develop, in consultation with legal scholars,
practitioners, and other appropriate experts, effective remedial and prevention
strategies to address the discrimination.
Kentucky jurisdictions have developed remedial and preventative strategies to address racial
discrimination found within the administration of the death penalty, in collaboration with legal
scholars, experts, and practitioners.
The Kentucky Racial Justice Act (KRJA)
In 1998, the Kentucky General Assembly enacted the KRJA in response to the findings of
Professors Keil and Vito’s research on the effect of race on the Commonwealth’s administration
of the death penalty, as discussed in Recommendation #1. Until 2009, when North Carolina
adopted its own racial justice act, Kentucky was the only capital jurisdiction in the U.S. to have
adopted legislation to address identified patterns of racial discrimination in capital sentencing.”
resources on a Class of cases that was identified by research to be the source of the problem. Such an approach
would be similar to examining ‘hot spots’ of crime by the police. It is important to address the issue of racial bias in
such a manner. It affects not only the quality of our courts but also the promotion of respect for the law in
general.”).
Id.
131A mold, supra note 72, at 101-02 (noting that the Kentucky General Assembly first considered a state version of
the KRJA in 1994 “[iJn response to the findings of Professors Keil and Vito”); Ky. REV. STAT. ANN. §§ 532.300-
.309 (West 2011); see Recommendation #1, supra notes 39-42 and accompanying text.
182 N.C. GEN. STAT. ANN. § 15A-2010 (2011); see also S.B. 461, 2009 Gen. Assemb., Reg. Sess. (N.C. 2009) (“No
person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought
or obtained on the basis of race.”), available at http://www.ncleg.net/Sessions/2009/Bills/Senate/PD F/S461v6.pdf.
Kentucky Assessment Team co-chair Michael Mannheimer also has authored an article comparing the Kentucky and
North Carolina racial justice acts. See Michael J. Zydney Mannheimer, Kentucky Racial Justice Act: Workable
Remedy or Window Dressing?, LEx Loct, Dec. 2009, at 18-19.
362
Limitations of the KRJA
The KRJA was designed to remedy racial discrimination by eliminating the death penalty as a
sentencing option when prosecutors base charging decisions on the race of the victim or
defendant in a given case.'? However, the KRJA has a number of limitations restricting its
effectiveness at remedying racial discrimination in the Commonwealth's capital sentencing
process. Most notably, the KRJA applies only to pretrial capital proceedings and to death
sentences imposed after July 14, 1998.'"* As a result, an inmate is not permitted to use the
KRJA to raise a valid claim that racial discrimination affected the capital proceeding if evidence
of that discrimination comes to light after the capital trial.'*° Unlike the North Carolina Racial
Justice Act, adopted in 2009, Kentucky’s procedures do not permit retroactive application of the
statute to cases in which the capital trial occurred prior to enactment of the KRJA, nor does it
permit use of the KRJA on appeal or during post-conviction proceedings.’ In order to
effectively combat racial discrimination, claims under the KRJA should be permitted to be raised
during any stage of the capital proceedings.'°’
Furthermore, the KRJA only applies to a prosecutor's decision “to seek a death sentence” and it
does not prohibit, nor does it address, death sentences imposed as a result of racial discrimination
occurring during any stage of capital proceedings, including the jury’s decision at sentencing. '**
By contrast, North Carolina’s Racial Justice Act provides that “[n]o person shall be subject to or
given a sentence of death or shall be executed pursuant to any judgment that was sought or
obtained on the basis of race.”“° The North Carolina law thereby permits capital defendants and
183. Ky. REV. STAT. ANN. §§ 532.300-.309 (West 2011); see supra note 131 and accompanying text.
St Ky. REV. STAT. ANN. § 532.305 (West 2011); see generally Neal, supra note 9 (discussing the KRJA adoption
process by the Kentucky General Assembly). Earlier versions of the KRJA applied retroactively, although
ultimately this protection was dropped during the Kentucky General Assembly’s consideration of the bill. See Neal,
supra note 9, at 14 (“[A precursor bill to the KJRA] gained three more votes [in the Kentucky House of
Representatives] after deletion of provisions making the bill applicable to those currently on Death Row.”).
185" Ky. REV. STAT. ANN. § 532.300(4) (West 2011). See Epperson v. Commonwealth, 197 S.W.3d 46, 63 (Ky.
2006) (noting that the defense “conceded that an argument about racial discrimination with respect to capital
sentencing was not the subject of a pretrial motion or any evidence prior to trial as now required by the Kentucky
Racial Justice Act, KRS 532.300”).
136 Ky, REV. STAT. ANN. §§ 532.300, 532.305 (West 2011). In 2009, North Carolina became the second state to
adopt a racial justice act, which corrected many of the shortcomings of the KRJA, including applying the protections
of the Act retroactively and providing use of the Act’s provisions during post-conviction proceedings. S.B. 461,
2009 Gen. Assemb., Reg. Sess. (N.C. 2009) (“No person shall be subject to or given a sentence of death or shall be
executed pursuant to any judgment that was sought or obtained on the basis of race.” (emphasis added)), available
at http://www.ncleg.net/Sessions/2009/Bills/Senate/PD F/S461v6.pdf. See also Vito, supra note 6, at 277-78 (“The
one difference is that the Kentucky law authorizes only a pre-trial claim that race was the basis of the decision to
seek the death penalty, while the proposed Federal legislation also permitted a legal challenge to discrimination at
the sentencing stage.”).
157 Compare Ky. REV. STAT. ANN. § 532.305 (West 2011) (“[The KRJA] shall not apply to sentences imposed
prior to [the effective date of the KRJA].”) with N.C. GEN. STAT. § 15A-2012 (“This act is effective when it
becomes law and applies retroactively. For persons under a death sentence imposed before the effective date of this
act, motions under this act shall be filed within one year of the effective date of this act... .”).
138 Ky, Rev. STAT. ANN. § 532.300(2) (West 2011) (emphasis added); Seth Kotch & Robert P. Mosteller, The
Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina, 88 N.C. L. REV. 2031,
2116 n.380 (2010); Vito, supra note 6, at 278 (discussing versions of a racial justice act proposed in the U.S.
Congress).
9 N.C. GEN. STAT. § 15A-2010 (2011).
363
death row inmates to obtain relief by proving that racial discrimination influenced a prosecutor's
decision to seek the death penalty or ajury’s decision to impose a death sentence.”
The KRJA also limits evidence that may be presented to prove a claim under the Act to that
which relates to the prosecutor’s decision to seek a death sentence.'“! The Act also requires a
Kentucky capital defendant to “state with particularity how the evidence supports a claim that
racial considerations played a significant part in decision to seek a death sentence in his or her
case.”!” However, another provision of the Act states that a defendant may prevail under the
KRJA by establishing that “race was a significant factor in decisions to seek the sentence of
death in the Commonwealth.” '“ It is unclear how these provisions interact with one another. In
contrast, the North Carolina Racial Justice Act permits statistical evidence establishing “that race
was a significant factor” in prosecutors’ charging decisions “in the county, the prosecutorial
district, the judicial division, or the State.” 44 Furthermore, the KRJA imposes a high burden on
the defendant to prove racial discrimination by “clear and convincing evidence.” '*°
Application of the KRJA
Since its enactment in 1998, it appears that application of KRJA has been very limited. We
uncovered only a single instance in which a trial court was forced to rule on whether to exclude
the death penalty as a sentencing option after having held a hearing where the defense presented
evidence to demonstrate racial discrimination and the prosecution presented evidence in rebuttal,
as prescribed by the KRJA.'° However, according to Kentucky State Senator Gerald Neal, who
surveyed all Kentucky public defenders in 2003 to determine how the RJA had been
M40 N.C. GEN. STAT. § 15A-2010 (2011). The effect of the Kentucky statute is to limit the impact of its legislation
to prosecutor’ s charging decisions while the North Carolina Racial Justice Act clearly covers decisions by the jury to
impose the sentence as well. Kotch & Mosteller, supra note 138, at 2117-18 & 2117 n.381 (“Earlier versions of the
North Carolina Racial Justice Act introduced in the North Carolina House of Representatives bore strong
resemblance to the Kentucky statute, and thus changes in the legislation before enactment to modify those
provisions that limited its effectiveness are significant indicators of legislative intent. H.B. 1291, which was
introduced in 2007 but not adopted, tracked the major provisions of the Kentucky act and contained the major
limitations .. . .”); id. at 2037 n.15 (noting the substantial differences between the two racial justice acts). See also
Olatunde C.A. Johnson, Legislating Racial Fairness in Criminal Justice, 39 CoLUM. Hum. Rts. L. REV. 233, 242
(2007) (“The Kentucky Racial Justice Act is weaker than the federal RJA, which had a less burdensome standard of
proof for defendants and which sought to address discrimination by prosecutors and juries.”).
Ml Ky. REV. STAT. ANN. § 532.300(3) (West 2011) (“Evidence relevant to establish a finding that race was the
basis of the decision to seek a death sentence may include statistical evidence or other evidence... .”).
Comparatively, the North Carolina Racial Justice Act explicitly permits “statistical evidence or other evidence,
including, but not limited to, swom testimony of attomeys, prosecutors, law enforcement officers, jurors, or other
members of the criminal justice system or both... .” N.C. GEN. STAT. §15A-2011(b) (2011).
12 Ky, Rev. STAT. ANN. § 352.300(5) (West 2011) (emphasis added); see also Kotch & Mosteller, supra note 138,
at 2118 (“[C]ompared to the Kentucky statute, the North Carolina RJA imposes a particularity requirement
Tegarding proof as to the four relevant geographical areas and not the individual defendant's case.”).
MS" Ky. REV. STAT. ANN. § 532.300(2) (West 2011).
Mf" N.C. GEN. STAT. §15A-2011(a) (2011).
145 See Recommendation #5, supra note 169 and accompanying text.
“46 Neal, supra note 9, at 16 (“In another case, a hearing was held, statistics considered, [and] motion to exclude
death as a possible punishment was overruled.”). However, the Assessment Team is aware of at least three cases
uncovered by Senator Neal’s survey on the application of the KRJA where the defense filed a motion for discovery
under the KRJA motion requesting prosecutors’ charging history of potential death penalty cases. Id. at 15-16.
364
implemented, only four reported that they “had a case that involved the [KRJA] provisions.” !“”
Furthermore, we are aware of only one case where the Kentucky Supreme Court briefly
considered and dismissed a death row inmate’s claim under the KRJA on appeal, noting that the
inmate had failed to raise the claim at trial as required under the Act. !*
We are aware of one capital case out of Barren County, Kentucky, in which the KRJA was used
to support expanded voir dire at a capital trial. In this case, in which a black defendant was
charged with kidnapping and killing his former white girlfriend, the Commonwealth notified the
defendant of its decision to seek the death penalty and subsequently moved for “severely limited
individual voir dire.”"“° The defense filed a motion which contained a lengthy discussion of
Kentucky’s history of racial discrimination and subsequent adoption of the KRJA and then
requested several remedies, including expanded voir dire that would address the issue of racial
discrimination and the issuance of an order directing the Commonwealth to disclose the race of
the defendant in all death-eligible murder cases at the time his case arose.°’ While the trial
court refused to exclude death as a possible sentence, the judge permitted expanded voir dire.!*!
Some death row inmates also have raised unsuccessfully the Commonwealth's adoption of the
KRJA to support their assertion that the death penalty had been applied in violation of the Eighth
Amendment in their case.'°*
Finally, a possible unintended consequence of the KRJA is that some prosecutors may no longer
exercise discretion when determining whether to seek the death penalty against a capital-eligible
47 Neal, supra note 9, at 15 (noting that sixty-four defenders responded). Senator Neal was an early sponsor of the
KRJA in the Kentucky General Assembly. Vito, supra note 6, at 276-77.
148 " See Epperson, 197 S.W.3d at 63 (noting that the defense “conceded that an argument about racial
discrimination with respect to capital sentencing was not the subject of a pretrial motion or any evidence prior to
trial as now required by the Kentucky Racial Justice Act, KRS 532.300”).
149 Robert Sexton, Capital Trial of African American in Barren County Results in Life Without Parole Sentence, 25
d; CRIM. Just. Epuc. RES. 14, 14 (2003).
5° Sexton, supra note 149, at 14; Vito, supra note 6, at 280 (text accompanying note 83). A request for a change
in venue had previously been denied. Sexton, supra note 149, at 14. For the full text of the KRJA brief filed in this
case, see the Sexton article. Sexton, supra note 149.
151 Sexton, supra note 149, at 14 (noting that “the Judge appeared to counsel to be somewhat irritated that the
[KRJA] motion had been filed”); Id. at 23 (noting that recently in the same “judicial circuit, the Commonwealth
offered a white defendant a 15 year sentence for killing his girlfriend); Vito, supra note 6, at 280 (discussing the
Wood case and noting that the KRJA provided “the defense a method to prevent the potential of racial bias in a
capital case while it is being conducted rather than upon appeal”); Ky. R. CRIM. P. 9.38 (rule governing voir dire).
After finding the defendant guilty of murder and capital kidnapping, the jury sentenced the defendant to life without
parole. Sexton, supra note 149, at 14.
‘2 See, e.g., Brief for Appellant, Hunt v. Commonwealth, 2007 WL 5884650, *133 (Ky. Oct 19, 2007) (citing the
KRJA and related research on racial discrimination as evidence the death penalty is applied unconstitutionally,
arbitrarily, and capriciously in Kentucky); Brief for Appellant, Fumish v. Commonwealth, 2005 WL 5793592 (Ky.
Nov 14, 2005) (same). The Commonwealth also has asserted, in its reply brief in capital cases, that the KRJA
cannot be raised on appeal because the petitioner failed to raise it before the capital trial. See, e.g., Brief for
Appellee-Commonwealth, Meece v. Commonwealth, 2008 WL 5783744 (Ky. Oct 06, 2008); Brief for A ppellee-
Commonwealth, Brown v. Commonwealth, 2008 WL 6013720 (Ky. May 30, 2008); Brief for Appellee-
Commonwealth, Bunt [sic] v. Commonwealth, 2008 WL 5433065 (Ky. Apr 21, 2008). In each of these cases, the
Kentucky Supreme Court did not address the petitioners’ allegation that adoption of the KRJA evidenced arbitrary
application of the death penalty in Kentucky, nor did the Court address the Commonwealth’s assertion that any
claim under the KRJA must be made before trial or it will be deemed to have been waived.
365
defendant.'®*? Instead, a prosecutor may seek the death penalty against every capital-eligible
defendant in order to avoid litigation under the KRJA.’* In a 2004 article, Kentucky State
Senator Neal suggested that, similar to the Batson obligation for prosecutors to provide race
neutral reasons for excusing a black juror, “courts should also require prosecutors to reveal what
policies they have conceming seeking to prosecute a case as capital. This would require
prosecutors to adopt race neutral policies that do not currently exist.”
Post-KRJA Strategies to Address Racial Discrimination
Since the adoption of the KRJA, Kentucky has sought to address racial disparities or racial
discrimination within the general criminal justice system.!°° However, it has taken only limited
steps to develop additional remedial and preventative strategies to address racial discrimination
in the Commonwealth’s death penalty administration. For example, in 2001, the Kentucky
Criminal Justice Council’s Capital Committee unanimously recommended that a comprehensive
statewide study be conducted addressing a number of problems within the Kentucky death
penalty scheme.'®’ Specifically, the Council approved a recommendation that the study address,
among other things, “[p]rosecutor discretion in seeking the death penalty; adaptation of federal
guidelines or procedures in other states; [and an] independent review team to ensure statewide
consistency in considering factors of race, geography, gender, economic status, age, cognitive
abilities, and aggravating circumstances/level of culpability... .”’° To date, Kentucky has not
provided funding for this proposal and no Kentucky entity has undertaken it otherwise.
Conclusion
The Kentucky Death Penalty Assessment Team applauds the Commonwealth for becoming the
first state to adopt a Racial Justice Act, providing a mechanism for ensuring that no person is put
to death in accordance with a death sentence sought as a result of the race of the defendant or
victim, and permitting the introduction of statistical evidence as proof. However, because the
Commonwealth has not examined the effectiveness of the KRJA at remedying and preventing
153 Neal, supra note 9, at 16-20; Vito, supra note 6, at 279-80.
‘54 Neal, supra note 9, at 16-20; Vito, supra note 6, at 279-80.
155 Neal, supra note 9, at 21 (noting that such policies didn’t exist as of 2004). See also id. at 21 (noting that the
“Kentucky Prosecutor's Handbook (1975) issued by the Office of the Attomey General, Prosecutor's Assistance
Division counseled in favor of excluding minorities as jurors, particularly potential jurors who were of ethnic or
national background similar to that of the defendant who was on trial.”).
156 Additional examples of the Commonwealth identifying and then remedying pattems of racial discrimination,
such as the 1990 and 2002 changes in Kentucky’s juror selection process, are addressed in Recommendation #1.
See Recommendation #1, supra notes 86-90 and accompanying text.
157 Neal, supra note 9, at 12. The Criminal Justice Council’s mission was to “provide the Govemor and the
Kentucky General Assembly with recommendations to guide decision making and policy development on issues
involving the courts, law enforcement and corrections and through research, planning and evaluation, to reduce
crime and improve the fair administration of justice in the Commonwealth of Kentucky.” Ky. CRIMINAL JUSTICE
COUNCIL, http://www.kcjc.state.ky.us/ (last visited June 6, 2011).
188 Ky, CRIMINAL JUSTICE COUNCIL, AN INTERIM REPORT: ACTIVITIES, FINDINGS AND RECOMMENDATIONS 11
(2001), available at _http://justice.ky.gov/NR/rdonlyres/551D 1B62-8FCC-4144-A 848-91600BE6C03C/0/
2001interimreport.pdf. See also Neal, supra note 9, at 12-13.
‘59 Neal, supra note 9, at 13; Ky. CRIMINAL JUSTICE COUNCIL, http://www.kcjc.state.ky.us/ (last visited May 26,
2011). The Council’s website has not been updated since 2002. Id.
366
racial discrimination in death penalty cases, we are unable to determine whether Kentucky is in
compliance with Recommendation #4.
In consultation with legal scholars, practitioners, and other appropriate experts— particularly
those who have extensive experience examining the effect of race on capital sentencing in
Kentucky— the Commonwealth should develop appropriate amendments to the KRJA so that the
Act serves as an effective tool to address racial bias or any patterns of racial discrimination in the
administration of the death penalty. At a minimum, to address the apparent limitations of the
Racial Justice Act described throughout this Recommendation, the KRJA should be revised
e to permit capital defendants and death row inmates to raise not only a claim of
racial discrimination in the prosecutor's decision to seek the death penalty, but
also in the imposition of the death penalty;
e to permit a person under a sentence of death to raise an allegation of racial
discrimination at any stage of the capital proceedings, including on appeal or
during post-conviction proceedings;
e to clarify that a capital defendant or death row inmate can prevail under the KRJA
if s/he is able to state how the evidence supports a claim that racial considerations
played a significant part in the decision to seek a death sentence or impose a death
sentence in the county, the judicial district, or the Commonwealth; '! and
e to be made retroactive and available to inmates who were sentenced to death prior
to its enactment.!°
E. Recommendation #5
Jurisdictions should adopt legislation explicitly stating that no person shall be put to
death in accordance with a sentence sought or imposed as a result of the race of the
defendant or the race of the victim.’ To enforce such a law, jurisdictions should
permit defendants and inmates to establish prima facie cases of discrimination based
upon proof that their cases are part of established racially discriminatory patterns.
If such a prima facie case is established, the State should have the burden of
rebutting it by substantial evidence.
160 The Kentucky General Assembly has adopted legislation particular to other aspects of capital cases to permit
relief at any stage of the proceedings. For example, Kentucky's DNA statutes permit death row inmates to request
testing during pre-trial proceedings and permits all death row inmates to file a post-conviction petition for DNA
testing and analysis at any time. Ky. Rev. STAT. ANN. §§ 422.287 (pre-trial testing of DNA evidence), 422.285
(West 2011) (post-conviction DNA testing for death row inmates).
1el_ KRS 532.300(4) currently requires the capital defendant to “state with particularity how the evidence supports a
claim that racial considerations played a significant part in the decision to seek a death sentence in his or her case.”
Ky. REV. STAT. ANN. § 532.300(4) (West 2011).
1©2 In 1992, “100% of the 33 inmates on Kentucky’s death row were there for murdering a white victim. None
were there for the murder of a black victim, despite the fact that there had been over 1,000 A frican-A mericans
murdered in Kentucky since the death penalty was reinstated.” Arnold, supra note 72, at 99.
‘63 The Kentucky Assessment Team notes that none of the Recommendations contained in this Chapter should be
interpreted to prohibit admission of evidence that the jury is properly allowed to consider under law in reaching a
verdict or recommending a sentence. See generally Ky. REV. STAT. ANN. § 532.025(2) (West 2011).
367
The KRJA states that “[n]o person shall be subject to or given a sentence of death that was
sought on the basis of race.”"** Under the KRJA, a capital defendant may raise a claim prior to
trial alleging that the race of the defendant or race of the victim “was a significant factor’ in the
prosecutor's decision to seek the death penalty in the defendant’s case.’ In response, the
Commonwealth may offer evidence in rebuttal of the claims or evidence presented by the
defendant.‘ If the court determines that the defendant has proven, by clear and convincing
evidence, that race was the basis of, or a significant factor in, the prosecutor's decision to seek
the death penalty, the court must order that a death sentence not be sought in that particular
case.
As described in Recommendation #, the KRJA falls short of providing an adequate remedy to
racial discrimination in capital cases, in part because it applies only to the decision to seek the
death penalty and not to the decision to impose the death penalty, in contravention of this
Recommendation.’ Furthermore, Kentucky requires KRJA claims to be proved “by clear and
convincing evidence,” rather than permitting defendants to demonstrate a prima facie case of
racial discrimination through the preponderance of the evidence standard.’ Similarly, while the
KRJA burdens capital defendants with a higher burden of proof than described by this
Recommendation, the KRJA permits the Commonwealth's A ttomey to rebut a claim through any
evidence, rather than requiring the Commonwealth’s rebuttal to be by substantial evidence.”
Because the KRJA does not fully address valid allegations of racial discrimination in the
Commonwealth as expressed in this Recommendation, it is in partial compliance with
Recommendation #5.
F. Recommendation #6
Jurisdictions should develop and implement educational programs applicable to all
parts of the criminal justice system to stress that race should not be a factor in any
aspect of death penalty administration. To ensure that such programs are effective,
jurisdictions also should impose meaningful sanctions against any State actor found
to have acted on the basis of race in a capital case.
‘Ky. REV. STAT. ANN. § 532.300(1) (West 2011).
165 Ky, Rev. STAT. ANN. § 532.300(2) (West 2011). The capital defendant is permitted to introduce “statistical
evidence or other evidence, or both” to show “that death sentences were sought significantly more frequently: (a)
[uJpon persons of one race than upon persons of another race; or (b) [a]s punishment for capital offenses against
persons of one race than as punishment for capital offenses against persons of another race.” Ky. REV. STAT. ANN. §
532.300(3) (West 2011). The circuit court will then schedule a hearing on the issue and prescribe a time for the
submission of evidence by both parties. Ky. REV. STAT. ANN. § 532.300(4) (West 2011).
66 Ky. REV. STAT. ANN. § 532.300(5) (West 2011).
‘7 Ky, REV. STAT. ANN. § 532.300(2), (4)-(5) (West 2011).
See supra text accompanying notes 133-144.
169 Ky, REV. STAT. ANN. § 352.300(5) (West 2011). The North Carolina Racial Justice A ct requires the defendant
to prove a claim by a preponderance of evidence. See N.C. GEN. STAT. §15A-2011(c); Kotch & Mosteller, supra
note 138, at 2117 n.381 (comparing the Kentucky and North Carolina Racial Justice Acts); Neal, supra note 9, at 14
(noting the high threshold defendants must meet to prove that race influenced the Commonwealth's decision to seek
the death penalty).
"9 Ky. REV. STAT. ANN. § 352.300(5) (West 2011).
368
While the Office of Minority Affairs (OMA), as discussed in Recommendation #1, “acts in an
advisory role to ensure that court system policies and procedures do not discriminate based on
race,”'”! the Kentucky Assessment Team did not uncover any Commonwealth entity or program,
applicable to the criminal justice system, stressing that race should not be a factor in any aspect
of death penalty administration.’ Nonetheless, some Commonwealth entities provide at least
some education on racial and ethnic discrimination issues within the criminal justice system. 1”
For example, since 2001, Kentucky law enforcement officers must complete, along with basic
and annual in-service training requirements,’ an approved training on the Commonwealth’s
prohibition on racial profiling.’” Pursuant to this training requirement, the Kentucky Law
Enforcement Council has promulgated a model policy which also provides that officers who
conduct racial profiling are subject to their law enforcement agency’s “disciplinary procedures,
which shall be consistent with other penalties imposed for similar officer misconduct.” In
addition, a number of law enforcement certification bodies recommend or require that law
enforcement agencies adopt policies on racial sensitivity. For example, the Kentucky
Association of Chiefs of Police (KACP) Accreditation Program requires accredited law
enforcement agencies to adopt specific policies against racial profiling, pursuant to KRS
Office of Minority Affairs, ADMIN. OFFICE OF THE CTs. Ky. CT. OF JUSTICE,
http://courts.ky.gov/aoc/personnel/minorityaffairs/default.htm (last visited Nov. 21, 2011).
172" See, e.g., Interview with Priscilla Johnson, supra note 113 (stating that the OMA does not have any program
focused on educating the Commonwealth’s citizens or other actors within criminal justice system that race should
not be a factor in any aspect of the death penalty’s administration).
13° For example, in 2001 the Kentucky General Assembly adopted, in response to the Keil and Vito studies,
legislation prohibiting racial profiling and requiring the Kentucky Law Enforcement Council (KLEC) to promulgate
a model policy for law enforcement agencies, which included a training aspect that applied to all law enforcement
officers. Amold, surpa note 87, at 10 (noting that the legislation provided Kentuckians with “a much more robust
right to litigate racially discriminatory conduct than does the federal constitution”); Ky. REV. STAT. ANN. § 15A.195
(West 2011) (“No state law enforcement agency or official shall stop, detain, or search any person when such action
is solely motivated by consideration of race, color, or ethnicity, and the action would constitute a violation of the
civil rights of the person.”).
1™ all Kentucky law enforcement officers are required to complete at least 640 hours of basic training, which,
pursuant to KRS 15.334, includes mandatory education on the “[i]dentification and investigation of, responding to,
and reporting bias-related crime, victimization, or intimidation that is a result of or reasonably related to race, color,
religion, sex, or national origin.” Ky. REV. STAT. ANN. § 15.334(1)(d), (4) (West 2011). See also Ky. REV. STAT.
ANN. §§ 15.404(1)(a), 95.955 (West 2011). Active law enforcement officers must also complete forty hours of
annual in-service training. Ky. REV. STAT. ANN. § 15.404(2)(a) (West 2011).
1S Ky, Rev. STAT. ANN. § 154.195 (West 2011); Ky. Law ENFORCEMENT COUNCIL, MODEL POLICY PROHIBITING
RACIAL PROFILING (revised June 28, 2001) (on file with author) (“Such training shall comply with Federal Law,
state statutory provisions, case law and other applicable laws, regulations, and established rules.”). While we were
unable to determine whether all Kentucky law enforcement agencies have adopted a policy against racial profiling,
we note that the Lexington Division of Police has adopted such a policy. See Hardy v. Commonwealth, 149 S.W.3d
433, 436 n.11 (Ky. App. Ct. 2004) (citing Lexington- Fayette Urban County Division of Police, Gen. Order 00-2A,
Profiling Policy). The DOCJT also provides law enforcement officers a sixteen-hour telecommuter course on
“Cultural Awareness,” and which provides “insight into the dynamics of diversity within the [Commonwealth’s]
communities . . . [and] the significance of cultural awareness, workplace diversity and review the Americans with
Disabilities Act (ADA).” Cultural Awareness, Ky. DeEp’T OF CRIM. JUSTICE TRAINING,
http://docjt.ky .gov/201 1schedulebook/detail.asp?T RC_ID=9900 (last visited May 18, 2011).
16" Ky, Law ENFORCEMENT COUNCIL, MODEL POLICY PROHIBITING RACIAL PROFILING (revised June 28, 2001) (on
file with author).
369
15A.195.!”” In addition, the Commission on Accreditation for Law Enforcement Agencies, Inc.
(CALEA) requires certified law enforcement agencies to establish a written directive that at a
minimum prohibits, and requires training on how to avoid, biased-based profiling.'”? CALEA,
however, only pertains to certified law enforcement agencies, and only three within the
Commonwealth are accredited by CALEA.' For more information on Kentucky law
enforcement training, see Chapter Three on Law Enforcement
Kentucky does not impose any specialized training requirements for defense attorneys related to
racial discrimination in capital cases. However, annual training is provided by the Kentucky
Department of Public Advocacy (DPA) and the Louisville Metro Public Defender’s Office
(Metro Defender) on the “unique issues regarding the [Kentucky] Racial Justice Act.”!®°
Furthermore, in 2001, Chief Justice Lambert created the Commission on Racial Fairness to
undertake a campaign to “eradicate any vestiges of racial discrimination in the courts.”’®’ Asa
part of this project, DPA initiated in 2008 a “Litigating Race Education Project,” in order to
educate members of Kentucky’s “legal profession about disproportionate minority confinement
and how to litigate issues of racial disparity in individual cases.”'®’ For more information on the
campaigns, studies, and actions of the Jefferson County Commission on Racial Faimess, see
Recommendations #1 and #3 in this Chapter.
The Commonwealth does not require the Commonwealth’s prosecutors to participate in
educational programming that emphasizes that race should not be a factor in any aspect of death
177
Ky. Assoc. OF CHIEFS OF POLICE, ACCREDITATION PROGRAM 57 (Apr. 20, 2009), available at
http://www.kypolicechiefs.org/joomla/attachments/095 STANDARDS 2009 April 20_.doc (providing a model
policy on racial profiling for agencies to adopt); Ky. REV. STAT. ANN. § 154.195 (West 2011). KACP Standard
14.1 also requires “[e]ach officer having responsibility for the enforcement of the criminal laws in general [to]
graduate from a basic training program certified by [KLEC] prior to the exercise of such authority...” Id. at 33.
As of January 2011, seventy-nine out of over 400 Kentucky law enforcement agencies are accredited through the
KCAP Accreditation Program. Accredited Agencies, Ky. Assoc. OF CHIEFS OF POLICE,
http://www. kypolicechiefs.org (last visited Nov. 14, 2011) (follow “Accredited Agencies” hyperlink under
“Accreditation” drop-down list).
18 COMM'N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, STANDARDS FOR LAW ENFORCEMENT
AGENCIES, THE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY ACCREDITATION PROGRAM, at 1.2.9 (5th
ed. 2006).
1 The Lexington Division of Police and the Taylor Mill Police Department are CALEA-accredited law
enforcement agencies; the Kentucky Department of Criminal Justice Training is a CALEA-accredited training
academy. See Agency Search, CALEA ONLINE, http://www.calea.org/agcysearch/agencysearch.cfm (last visited
May 4, 2011) (use second search function, designating “U.S.” and “Kentucky” as search criteria).
160 " Interview with DPA, supra note 124; Interview with Daniel T. Goyette, supra note 124.
181 Ky. DEP’T OF PuB. ADVOCACY, Justice for All: Litigating Race Issues to Protect Equal Justice in Kentucky, 30
ADVOCATE 3, May 2008, at 2.
182 Td. at 2 (noting that a special edition of The Advocate was partly funded through a grant from the Kentucky Bar
Foundation). Issues addressed in this periodical included, “Selective Prosecution,” “Using Kentucky Law and the
Kentucky Constitution to Challenge Racially Biased Searches and Seizures,” “Bias Effecting [sic] Pre-Trial
Release,” “Disparate Impact: Racial Bias in the Sentencing and Plea Bargaining Process,” “The Cumulative Effects
of Racial Disparities in Criminal Proceeding,” “Challenging the Venire,” “Litigating Race in Voir Dire,”
“Confronting the Race Issue in Jury Selection” “Preventing Systemic Discrimination and Addressing Bias Against
Child/A dolescent Clients in the Juvenile and Adult Justice Systems,” and “Race and Immigration Issues,” among
others. Id.
370
penalty administration.’ The Kentucky Prosecutors Institute, an annual training for the
Commonwealth's prosecutors conducted by the Kentucky Prosecutors Advisory Council,
includes education on jury selection, pretrial proceedings, and other legal considerations in the
prosecution of a death penalty case."* However, we were unable to determine whether this
training, or any other training provided to Commonwealth prosecutors, emphasizes that race
should not be a factor in any aspect of death penalty administration. In addition, the failure of
the Commonwealth to adopt remedial and preventative strategies to combat racial discrimination
in voir dire evidences the need for educational programs stressing the elimination of racial
considerations in death penalty decisions. '®°
Finally, judges in Kentucky must participate in continuing education and ethics and
professionalism training, '®’ although this does not ensure that judges receive education stressing
that race should not be a factor in any aspect of the death penalty administration. The Kentucky
Code of Judicial Conduct prohibits judges from manifesting bias or prejudice by words or
conduct in the performance of their judicial duties.'®* Furthermore, judges may not participate in
any extra-judicial activities that may cast doubt on the judge’s capacity to act impartially,
including making remarks or jokes demeaning to individuals on the basis of race or national
origin, nor may judges hold membership in any organization that practices invidious
discrimination on the basis of race or national origin.'*° According to the Kentucky Judicial
Conduct Commission (JCC), judicial misconduct such as “[e]xpressions of bias based on race,
gender{,] or ethnicity” may lead to disciplinary action.’ If a judge violates any of these
provisions, the JCC may impose sanctions on the offending judge, ranging from a private
183 Ky, Rev. STAT. ANN. § 15.718 (West 2011) (requiring training on “the dynamics of domestic violence, child
physical and sexual abuse, rape, effects of crime on adult and child victims, legal remedies for protection, lethality
and risk issues, profiles of offenders, model protocols for addressing domestic violence, child abuse, rape, available
community resources and victims services, and reporting requirements”).
184 Ky, PROSECUTORS ADVISORY COUNCIL, PROGRAM AGENDA & SCHEDULE (Oct. 29-31, 2009), available at
http://www.kyprosecutors.com/intranet/wp-content/uploads/2009/10/Misdemeanor- Packet-for-Printing-Order.pdf.
See also Press Release, Attorney General Stumbo Announces Training for New Prosecutors, Office of the Attomey
General (Sept. 10, 2007), available at http://migration.kentucky .gov/Newsroom/aag/newprosecutortraining.htm (last
visited Nov. 21, 2011) (“Each year’s class trains approximately 40 prosecutors from the state’s Commonwealth’s
and County Attorney offices, teaching them about specific state statutes and case law, courtroom procedure and
demeanor, and how to present evidence both conventionally and with advanced technology.”).
185 See Chapter Five on Prosecutorial Professionalism.
18° Batson, 476 U.S. at 79. The 1975 Kentucky Prosecutor’s Handbook, developed and distributed throughout the
Commonwealth by the Kentucky Office of the Attomey General, explicitly instructed Commonwealth attomeys to
use peremptory strikes to exclude minorities. Neal, supra note 9, at 21.
187 “See, e.g., Press Release, 44 Judges Participate in Orientation Program for New Kentucky Judges, Ky. Ct. of
Justice (Mar. 17, 2010), available at http://migration.kentucky.gov/newsroom/kycourts/03172010JB1.htm (last
visited Nov. 21, 2011). For additional information on the Commonwealth's judiciary, see Chapter Eleven on
Judicial Independence.
18 Ky. Sup. CT. R. 4.300, Canon 3B(5) & cmt. See also Ky. Sup. Cr. R. 4.300, Canon 3B(6) (requiring judges to
prohibit lawyers from using language manifesting prejudice or bias), Canon 3C(2) (requiring judges to ensure their
staff refrains from manifesting prejudice or bias in the performance of their duties).
189 Ky. Rev. STAT. ANN. § 26A.015(2)(a), (e) (West 2011) (listing other reasons a judge must disqualify
him/herself); Ky. Sup. Cr. R. 4.300, Canon 2A, 2E (prohibiting membership in an organization that discriminates
based on race, sex, religion, or national origin).
10 Types of Judicial Misconduct, JuDIcIAL ConpucT ComM’N, http://courts.ky.gov/jcc/#misconduct (last visited
May 24, 2011).
371
reprimand to removal from office, a recommendation that the judge lose his/her license to
practice law, ora referral that the judge to the Kentucky Bar Association (KBA) for discipline.’®!
Commonwealth Attomeys and defense counsel may be sanctioned by the KBA, which
investigates, prosecutes, and sanctions attorneys within the Commonwealth that violate the
Kentucky Rules of Professional Conduct (Rules).'°? However, the Rules do not specifically
address attorney conduct that manifests racial bias or discrimination and therefore the KBA is
not able to impose sanctions for such conduct.
Based on this information, the Commonwealth of Kentucky is in partial compliance with
Recommendation #6.
G. Recommendation #7
Defense counsel should be trained to identify and develop racial discrimination
claims in capital cases. Jurisdictions also should ensure that defense counsel are
trained to identify biased jurors during voir dire.
The Commonwealth of Kentucky has not adopted any law, rules, or standards requiring defense
counsel to participate in training to identify and develop racial discrimination claims in capital
cases or to identify biased jurors during voir dire.
However, DPA requires all staff public defenders, and any private counsel who contract with
DPA, to complete comprehensive training before undertaking representation in a death penalty
case, which includes training on “the unique issues relating to the [Kentucky] Racial Justice Act”
and on jury selection.'*? DPA also requires contract counsel to have demonstrated skill in
several elements of trial advocacy, including jury selection, and requires both staff attomeys and
contract counsel, before every capital trial, to complete a case review and/or “a capital voir dire
workshop where counsel will practice the individual sequestered and, where appropriate, group
voir dire.”'** Furthermore, DPA sponsors annual legal education programs for staff attomeys
and conflict counsel, including a biennial two-day capital defender training program called the
DPA Capital Trial Practice Institute, at which information on the role of race in death penalty
'! Ky. Const. § 121; Ky. REV. STAT. ANN. § 34.340 (West 2011); Ky. Sup. Cr. R. 4.300, Canon 3D, 4.020.
1 Office of Bar Counsel Overview, Ky. BAR Ass’N, http://www.kybar.org/234 (last visited May 18, 2011). When
a complaint is filed with the Kentucky Bar Association (KBA) Inquiry Commission, which is appointed by the
Kentucky Supreme Court and receives and processes complaints against Kentucky lawyers of professional
misconduct, the KBA’s Office of Bar Counsel is responsible for investigating and prosecuting professional
misconduct charges from the Inquiry Commission, and finally sanctioning the attomey. Id. Additionally, the KRJA
punishes prosecutorial misconduct based on racial discrimination in charging decisions by eliminating the death
penalty as a potential punishment in a capital-eligible prosecution. Ky. REV. STAT. ANN. § 352.300 (West 2011);
Ky. Sup. CT. R. 3.130(1.1)-(8.4).
183 Ky. DEP’T OF PuB. ADVOCACY, POLICIES AND PROCEDURES §§ 17.21(II) (requiring DPA staff and contract
counsel to be compliant with the National Legal Aid and Defender Association and the ABA Revised Guidelines for
Performance of Counsel in Capital Cases), 8.04(I)(C)(3) (conflict counsel qualification and training requirements)
[hereinafter DPA PoLicy]. See generally 26 ADVOCATE 3, May 2004 (providing educational tools and articles for
Commonwealth defense attorneys on how to litigate race issues in Kentucky, including during voir dire).
'** DPA PoLicy, supra note 193, at §§ 8.04(1)(C)(1)(h), 8.04(1)(D)(1)-(2), 17.21(I1).
372
litigation and skills training on the identification of biased jurors during voir dire has
occurred. '®°
The Louisville Metro Public Defender’s Office Corporation (Metro Defender) also requires
specialized training for staff attomeys and contract counsel in death penalty cases.'°° Metro
Defender staff capital defenders are required to participate in regular, on-going multi-disciplinary
case reviews and Metro Defender trainings on particular aspects of capital litigation, including
litigating the KRJA and jury selection.”’ The Metro Defender also attempts to ensure that
contract counsel either have had training on or experience litigating the KRJA and conducting
voir dire.
We were, however, unable to determine the extent to which DPA or the Metro Defender enforce
their internal policies.
While public defenders and contract counsel in the Commonwealth may be trained to identify
and develop racial discrimination claims in capital cases and to identify biased jurors during voir
dire, there are no training requirements that apply to all capital defense counsel in the
Commonwealth. Thus there is no assurance that such counsel are trained on litigating the KRJA
or other issues of racial discrimination that may arise in a capital trial. Based on this
information, Kentucky is in partial compliance with Recommendation #7.
H. Recommendation #8
Jurisdictions should require jury instructions that it is improper for jurors to
consider any racial factors in their decision making and that jurors should report
any evidence of racial discrimination in jury deliberations.
Kentucky sample jury instructions do not require judges to explicitly inform jurors that it is
improper to permit racial factors to affect their decision-making and that they should report any
evidence of racial discrimination in jury deliberations. In addition, we have not identified any
criminal or civil case in which a Commonwealth court has instructed a jury on the aspects
included in this Recommendation.
185 See DPA PoLicy, supra note 193, at §§ 12.21 (requiring attendance “at the first DPA Capital Trial Practice
Institute after the attomey ... joins the [Capital Trial Branch] staff”), 12.04(B) (requiring DPA’s Education &
Strategic Planning Branch to conduct a Death Penalty Litigation Persuasion Institute “every other year’) (on file
with author); see also DPA POLIcy, supra note 193, at § 8.04 (requiring contract counsel to attend and fully
participate in selected DPA training events, including the Institute and other events as determined by DPA
leadership). DPA also provides an annual five and a half day Litigation Persuasion Institute, required of all new
public defense attomeys, which includes intensive training on voir dire. Faubush, Ky. DEp’T OF Pus. ADVOCACY,
http://dpa.ky.gov/ed/fb.htm (last visited May 9, 2011).
196 Interview with Daniel T. Goyette, supra note 124. LPDC staff attomeys attend LPDC capital training, DPA-
sponsored trainings, including its “Capital Practice Institute,” and may be provided the opportunity to attend other
national training seminars, if financial resources are available. Id.
198 Tq.
373
Despite the Kentucky Supreme Court's acknowledgment that a “basic principle of due process is
the right to an unbiased decision,” the necessity of the adoption of such jury instructions in
Kentucky is clear. For example, potential jurors in a murder case acknowledged seeing “recent
news media coverage of racial disparities in the criminal justice system, [and] express[ed]
concem that racially biased juries pose a risk to fair trials and that A frican-A merican defendants
are more exposed to that risk than are non-A frican-A merican defendants.””°° Furthermore, in
addition to evidence of systemic racial discrimination in the Commonwealth's criminal justice
system,”"' we are aware of at least one Commonwealth capital-eligible case where the Kentucky
Supreme Court overturned the conviction of an African-American defendant due to the trial
court’s failure to excuse for cause a racist juror.”” Adopting jury instructions reminding jurors it
is improper for racial prejudice or bias to affect jurors’ decision-making and that they must
report any evidence of racial discrimination in jury deliberations would help “root out juror
prejudice” and ensure fair sentencing.”
Accordingly, the Commonwealth is not in compliance with this Recommendation.
I, Recommendation #9
Jurisdictions should ensure that judges recuse themselves from capital cases when
any party in a given case establishes a reasonable basis for concluding that the
judge's decision making could be affected by racially discriminatory factors.
The Kentucky Code of Judicial Conduct (Code) requires judges to perform their judicial duties
“without bias or prejudice,”"™ and to disqualify him/herself in a proceeding in which the judge
“has a personal bias or prejudice conceming a party” or in other instances in which the judge’s
“impartiality might reasonably be questioned.”*”> In addition, the Code mandates that “[a] judge
199 See Grooms v. Commonwealth, 756 S.W.2d 131, 135-38 (Ky. 1988).
am Rodgers v. Commonwealth, 285 S.W.3d 740, 758 (Ky. 2009).
20! See Recommendation #1, supra notes _ and accompanying text (describing systemic racial discrimination
found in numerous empirical studies on the Commonwealth’s criminal justice system as well as other surveys and
research); infra notes __ and accompanying text (describing a study of Jefferson County’s judiciary finding racial
discrimination in the courtrooms).
202 Gamble v. Commonwealth, 68 S.W.3d 367, 373 (2002) (“While Juror #54 did eventually state that he could be
fair and reach a decision on the evidence, every indication was that he holds racist ideas which affected his view of
Appellant before the first piece of evidence was presented to him. In short, he had indicated a bias so strong that he
could not be rehabilitated.”). See also Turley v. Commonwealth, 2008 WL 3875433, at *1 (Ky.) (dismissing a claim
regarding potentially racist jurors as waived since the defendant did not raise the issue on direct appeal); Winstead v.
Commonwealth, 283 S.W.3d 678, 684-85 (Ky. 2009) (holding that the black capital defendant accused of
murdering a white victim was not denied a fair trial by trial court's limitations on jury voir dire on the issue of racial
bias, restricting defendant from inquiring of potential jurors whether they agreed that racial prejudice had been, and
continued to be, a serious social problem in the Commonwealth, and asking how jurors would react to interracial
romantic relationships in their own families, where voir dire was permitted to ask potential jurors whether
defendant's race or his involvement in interracial relationships would have any bearing on their judgment).
203 See generally Eric Y. Drogin & Ryan Marin, Extreme Emotional Disturbance (EED), Heat of Passion, and
Provocation: A Jurisprudent Science Perspective, 36 J. PsyCHIATRY & L. 133, 136 (2008) (suggesting “‘a
cautionary jury instruction intended to root out juror prejudice’ ” in light of heterosexism, homophobia, sexism, and
other discriminatory viewpoints).
24 SCR 4.300, Canon 3B(5).
205 SCR 4.300, Canon 3E; KY. REV. STAT. ANN. § 26A.015(2)(a), (e) (West 2011) (listing reasons for which a judge
must disqualify him/herself).
374
shall not hold membership in any organization that practices invidious discrimination on the
basis of race, sex, religion[,] or national origin, e200 noting that “public manifestation by a judge
of the judge’s knowing approval of invidious discrimination on any basis . . . diminishes public
confidence in the integrity and impartiality of the judiciary.””””
Despite the existence of the Code, it appears that there have been numerous instances of racial
discrimination by Kentucky judges. Specifically, a 2003 study conducted by a University of
Louisville professor identified at least fourteen Jefferson County judges who had shown racial
bias in the courtroom and concluded that these judges sentenced black offenders more harshly
than whites.” In 2006, a Kentucky judge was found to have acted illegally when she ordered
seventeen Hispanic defendants charged with traffic violations and misdemeanors to be held
without bail and also made efforts to have the defendants deported.” In 2007, the Kentucky
Judicial Conduct Commission suspended her from the bench for fifteen days due to her conduct
in the above cases. 2!? Unfortunately, we were unable to determine whether other complaints, if
any, have been filed against the Kentucky judiciary based on intentional or perceived racial bias.
This was due, in part, to our inability to identify any entity within the Commonwealth, including
the Judicial Conduct Commission or the Administrative Office of the Courts, which keeps track
of this information, including data on judicial recusals made on this basis.”""
Accordingly, we do not have sufficient information to assess whether the Commonwealth of
Kentucky is in compliance with Recommendation #9.
J. Recommendation #10
26 SCR 4.300, Canon 2E.
207 SCR 4.300, Canon 2E cmt.
208 Steven C. Bourassa & Viviana Andreescu, Racial Fairness in Sentencing: A Case Study of Selected Crimes in
Jefferson County, RACIAL FAIRNESS COMM’N, Ky. CT. OF JusTICE, Sept. 30, 2004, available at
http://ksdc.louisville.edu/publications/racial_faimess_report.pdf (examining criminal cases between 1999 and 2002,
focusing on cocaine possession and misdemeanor shoplifting cases). After the release of the report, one member of
the commission’s executive committee concluded that some Jefferson County judges are racist, although the
commission’s chair suggested that any discrimination is “subconscious.” Andrew Wolfson & Gregory A. Hall,
Study Sees Racial Bias, CouRIER-J. (Louisville, Ky.), July 29, 2003, at Al. Additionally, Chief Justice Lambert
explained that he “knows most of Jefferson County's judges and finds it hard to believe that any judge “is a racist
and would intentionally sentence blacks more harshly than whites. It may be that there are racial considerations that
ajudge is unaware of.” Id. (quotations omitted).
20° Ruling: Judge Acted Illegally in Jailing Immigrants Indefinitely, AP ALERT, Oct. 7, 2006 (noting that the judge
had contacted federal authorities requesting that they investigate the immigration status of the detained individuals, a
request that was declined). Court records also showed that the judge “previously had ordered illegal immigrants in
her court to leave Kentucky as a condition of probation and had given some 72 hours to do so.” Id.
210 Brett Barrouquere, Judge Suspended for Jailing of Immigrants, Ky. Post, Apr. 20, 2007.
211 Email Interview by Paula Shapiro with Leigh Anne Hiatt, Public Information Officer, Pub. Info. Office, Ky.
Admin. Office of the Courts (May 24, 2011) (on file with author) (noting that “the Kentucky Administrative Office
of the Courts has not conducted studies nor tracked trends regarding judges who have been asked to recuse
themselves based on a racial/ethnic bias.”). The Judicial Conduct Commission (JCC) lists “[elxpressions of bias
based on race, gender or ethnicity” as a type of judicial courtroom misconduct that may lead to disciplinary
sanctions, but the Kentucky Assessment Team was unable to determine whether the JCC retains any statistical or
other information regarding this misconduct. Types of Judicial Misconduct, JUDICIAL CoNDUCT COMM’N,
http://courts.ky.gov/jcc/#misconduct (last visited May 24, 2011).
315
States should permit defendants or inmates to raise directly claims of racial
discrimination in the imposition of death sentences at any stage of judicial
proceedings, notwithstanding any procedural rule that otherwise might bar such
claims, unless the State proves in a given case that a defendant or inmate has
knowingly and intelligently waived the claim.
As previously discussed, Kentucky was the first of two states to adopt a racial justice act. The
KRJA permits capital defendants to raise, during pretrial proceedings, a claim that the
Commonwealth prosecutor sought the death penalty against the defendant based, in part, on race,
and it permits the trial court to remove the death penalty as a sentencing option if the defendant
is successful under the KRJA.”? Claims challenging the Commonwealth's use of peremptory
challenges on the basis of race,”"° the racial composition of the jury pool,”"* or racial bias in
charging procedures brought under the KRJA generally are procedurally barred from
consideration on direct appeal unless preserved at the trial level.”!° Inmates with claims of racial
discrimination that were litigated during direct appeal, or “could and should have been litigated
in the direct appeal” but were not, also are procedurally barred from raising the issue during
Criminal Procedure Rule (RCr) 11.42 post-conviction proceedings.”"° Furthermore, if the issue
could and should have been raised in an initial RCr 11.42 petition, the death row inmate will be
precluded from raising the issue in a subsequent RCr 11.42 petition or in a Civil Procedure Rule
60.02 post-conviction petition for extraordinary relief.?!”
For example, in Taylor v. Commonwealth, a death row inmate presented evidence during his
2001 post-conviction proceedings of prosecutors’ policies of exclusion of minority jurors,
212 Ky. REV. STAT. ANN. § 532.300 (West 2011); Recommendation #5, supra.
213 See Batson, 476 U.S. at 89-90.
214 See Taylor v. Louisiana, 419 U.S. 533, 528 (1975); see also Commonwealth v. Nelson, 841 S.W.2d 628, 629-
30 (1992) (holding that defendants have a right to juries selected at random from a fair cross section of the
community and finding that preserved error regarding substantial deviation from the statutes regarding the selection
of jurors will result in reversal of a conviction).
215° Simmons v. Commonwealth, 746 S.W.2d 393, 398 (Ky. 1988) (“If there is a challenge to be made to the
exercise of peremptories in this state, it should be made when the list of strikes has been retumed to the judge and
before the jury has been accepted by the parties and sworn to try the case and before the remainder of the jurors have
been discharged from service.”); Epperson, 197 S.W.3d at 63 (noting that the defense “conceded that an argument
about racial discrimination with respect to capital sentencing was not the subject of a pretrial motion or any evidence
prior to trial as now required by the Kentucky Racial Justice Act, KRS 532.300”); Grundy v. Commonwealth, 25
S.W.3d 76, 84 (Ky. 2000) (requiring trial counsel to make a sufficient record to permit appellate review of alleged
errors regarding voir dire). See also Bussell v. Commonwealth, 882 S.W.2d 111, 115 (Ky. 1994) (finding that a
statewide study of capital cases over fifteen years, which indicated racial discrimination in the imposition of death
sentences in Kentucky was “not relevant.”).
216 Ky. R. Crim. P. 11.42(3) (“Final disposition of the [post-conviction review] motion shall conclude all issues
that could reasonably have been presented in the same proceeding.”); Leonard v. Commonwealth, 279 S.W. 3d 151,
156 (Ky. 2009) (citing Wilson v. Commonwealth, 975 S.W.2d 901 (Ky. 1998)); Stanford v. Commonwealth, 854
S.W.2d 742, 747 (Ky. 1993) (“The complaint now raised in the RCr 11.42 motion has [] already been considered by
this Court and decided adversely to [the inmate]. It cannot be brought to the Court again.”); Taylor v.
Commonwealth, 63 S.W.3d 151, 157 (Ky. 2001) (“The [Batson] issue was decided against [the inmate] on direct
appeal and, therefore, cannot be raised in his RCr 11.42 motion.”), abrogated on other grounds by Crawford v.
Washington, 541 U.S. 36, 68 (2004).
217 McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (“Civil Rule 60.02 is not intended merely as an
additional opportunity to relitigate the same issues which could ‘reasonably have been presented’ by direct appeal or
RCr 11.42 proceedings. RCr 11.42(3); Gross v. Commonwealth, 648 S.W.2d 853, 855, 856 (Ky. 1983).”).
376
including a 1975 Kentucky Prosecutor's Handbook and affidavits of prosecutors admitting
policies to “remove all blacks” by using peremptory challenges.”!® However, the Kentucky
Supreme Court rejected Taylor's challenge to his death sentence, stating that the inmate had
raised the issue of discriminatory use of peremptory challenges on direct appeal and therefore
could not raise a Batson claim during post-conviction proceedings.”!°
Finally, we are aware of at least two cases where the Kentucky Supreme Court has made a
“reference to race” on direct appeal.” Specifically, in Bussell v. Commonwealth, the Court
noted that “[t]he sentence was not fixed because he was black or because the victim was
white,”*”! and in Wilson v. Commonwealth, it stated that “[t]he sentence was not fixed because
he was black... .”*2? However, we have found no case where the Kentucky Supreme Court has
218 Taylor, 63 S.W.3d at 156-57 (Ky. 2001). In her dissent, Justice Stumbo noted the “very impressive”
compilation of evidence submitted by Taylor and his attorneys and found that the inmate had made a prima facie
case under both Swain and Batson. Id. at 171 (Stumbo, J., dissenting) (listing the evidence as: “(1) Passages from
the Kentucky Prosecutor's Handbook that stated that the following were not ‘preferable’ jurors for the prosecution:
([a]) a juror who came from a ‘[mlinority group[ ] who may have a grudge against law enforcement;’ and ([b]) a
‘juror of racial or national background to that of the defendant.’ (2) Observations by a then-Jefferson Circuit Judge
that she discharged a panel in a particular case because the Commonwealth A ttomey used peremptory strikes to
remove all black jurors on the venire and because of her ‘awareness that the Commonwealth had in other prior cases
also elected to utilize strikes to remove all blacks.’ (3) The testimony of a former Jefferson County public defender
that he had observed a pattem and practice of the Commonwealth using peremptory strikes to remove blacks from
jury venires. (4) The testimony of a private attorney that he had observed the same pattern and practice on behalf of
the Commonwealth in ‘dozens and dozens of murder cases, many of which had been tried capitally.’ (5) The
testimony of a former staff attomey who worked for the Jefferson County Commonwealth A ttomney, who testified
that it was understood in the office that prosecutors should strive to strike jurors with the same ethnic background.
Further, she testified that it was common knowledge that the same Commonwealth Attomey who prosecuted
Taylor's case— who is also A frican-A merican— believed that blacks on the jury panel were bad.”). The trial judge
also was African-American. See Brett Barrouquere, Former Supreme Court Justice McAnulty Dies, AP ALERT,
Aug. 24, 2007.
ale Taylor, 63 S.W.3d at 157 (holding that “the [Batson] issue was decided against Taylor on direct appeal and,
therefore, cannot be raised in his RCr 11.42 motion”). However, the direct appeal opinion contains no discussion of
Taylor's alleged Batson claim. See Taylor v. Commonwealth, 821 S.W.2d 72, 74 (Ky. 1990) (addressing only the
admissibility of the defendant's confession and the trial court’s refusal to grant a change of venue and noting that the
petitioner, “through counsel, raises forty-four assignments of alleged error in this appeal,” adding: “We have
carefully reviewed all of the issues presented by Taylor .. . [alllegations of error which we consider to be without
merit will not be addressed here.”), overruled on other grounds by St. Clair v. Roark, 10 S.W.3d 482, 487 (Ky.
1999); see also Taylor, 63 S.W.3d at 171-72 (Stumbo, J., dissenting) (“Taylor did raise a Batson claim on direct
appeal. While that claim was necessarily rejected in the opinion affirming his conviction, there was absolutely no
analysis of the claim. We are left in the dark as to why the claim was rejected. The majority opinion’s assertion that
Taylor's Batson claim was rejected on direct appeal because he failed to establish a prima facie case is pure
speculation .... [I]f the majority opinion is correct in its assertion that Taylor’s Batson claim failed on direct
appeal for failure to establish a prima facie case, then our error on direct appeal in affirming Taylor's conviction on
this issue is clear and palpable.”). It is unclear whether the 1975 Kentucky prosecutor's handbook was known to the
defense at the time of the direct appeal.
220 Bienen, supra note 56, at 237 n.416 (noting that “[i]t is unclear whether the court conducted some sort of
analysis or systemwide review of black/white capital murders and concluded that the death sentence was not
imposed on racial grounds or if the court is simply asserting its opinion as to that matter”).
221" Bussell, 882 S.W.2d at 116. Bussell’s death sentence eventually was overtumed during post-conviction
proceedings. See Commonwealth v. Bussell, 226 S.W.3d 96, 107 (Ky. 2007).
22 Wilson v. Commonwealth, 836 S.W.2d 872, 892 (Ky. 1992), overruled on other grounds by St. Clair, 10
S.W.3d at 487.
377
conducted any inquiry into whether a capital defendant or death row inmate’s failure to raise a
claim of racial discrimination was made knowingly or intelligently.
Accordingly, Kentucky fails to comply with Recommendation #10.
378
CHAPTER THIRTEEN
MENTAL RETARDATION AND MENTAL ILLNESS
INTRODUCTION TO THE ISSUE: A NATIONAL PERSPECTIVE
The ABA unconditionally opposes the imposition of the death penalty on offenders with mental
retardation! or on offenders who, at the time of the offense, had significant limitations in their
intellectual functioning and adaptive behavior resulting from dementia or traumatic brain injury
that made them functionally equivalent to persons with mental retardation. The ABA also
opposes execution of persons with severe mental disabilities whose demonstrated impairments of
mental and emotional functioning at the time of the offense would render a death sentence
disproportionate to their culpability.
Furthermore, given the irreparable consequences that flow from a death row inmate's decision to
waive his/her appeals, the ABA also opposes execution of prisoners whose mental disorders or
disabilities significantly impair their capacity (1) to make rational decisions with regard to post-
conviction proceedings, (2) to assist counsel in those proceedings, or(3) when facing an
impending execution, to appreciate the nature and purpose of the punishment or reason for its
imposition.
Mental Retardation
While the U.S. Supreme Court prohibited the execution of people with mental retardation in
Atkins v. Virginia,” this holding does not guarantee that persons with mental retardation will not
be executed. Atkins did not define the parameters of mental retardation, nor did the decision
explain what process capital jurisdictions should employ to determine if a capital defendant or
death row inmate is mentally retarded.
In an effort to assist capital jurisdictions in determining who meets the criteria of mental
retardation, the ABA adopted a resolution opposing the execution or sentencing to death of any
person who, at the time of the offense, “had significant limitation in both their intellectual
functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive
skills, resulting from mental retardation, dementia or traumatic brain injury.”> The ABA policy
reflects language adopted by the American Association on Intellectual and Developmental
1 “Intellectual disability” is gaining currency as the preferred term to describe the same condition known as
mental retardation. See FAQ on Intellectual Disability, AM. Ass’N ON INTELLECTUAL & DEVELOPMENTAL
DISABILITIES, http://www.aaidd.org/content_104.cfm (last visited on July 11, 2011).
2 536 U.S. 304, 318-21 (2002).
3 ABA, RECOMMENDATION 122A, 2006 Ann. Mtg. (adopted Aug. 7-8, 2006), available at
http://www2.americanbar.org/sdl/Documents/2006_AM_122A.pdf. See AM. ASS’N ON INTELLECTUAL &
DEVELOPMENTAL DISABILITIES, INTELLECTUAL DISABILITY: DEFINITION, CLASSIFICATION, AND SYSTEMS OF
Supports (11th ed. 2010); AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 49 (text rev. 4th ed. 2000).
379
Disabilities (AAIDD) and the American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders (DSM) on mental retardation.*
Unfortunately, some states do not define mental retardation in accordance with these commonly
accepted definitions. Moreover, some states impose upper limits on the intelligence quotient
(IQ) score necessary to prove mental retardation that are lower than the range that is commonly
accepted in the field. In addition, lack of sufficient knowledge and resources often precludes
defense counsel from properly raising and litigating claims of mental retardation. And in some
jurisdictions, the burden of proving mental retardation is not only placed on the defendant, but
also requires proof greater than a preponderance of the evidence. Accordingly, a great deal of
additional work is required to make the Atkins holding a reality.
The ABA resolution also encompasses dementia and traumatic brain injury; disabilities
functionally equivalent to mental retardation, but that typically manifest after age eighteen.
While these disabilities are not expressly covered in Atkins, the ABA opposes the application of
the death penalty to any person who suffered from significant limitations in intellectual
functioning and adaptive behavior at the time of the offense, regardless of the cause of the
disability.
Mental Illness
In Atkins, the Court held that mentally retarded offenders are less culpable than other offenders
because of their “diminished capacities to understand and process information, to communicate,
to abstract from mistakes and learn from experience, to engage in logical reasoning, to control
impulses, and to understand the reactions of others.”° This same reasoning must logically extend
to persons suffering from a severe mental disability or disorder that significantly impairs their
cognitive or volitional functioning at the time of the capital offense.
In 2006, the ABA adopted a policy opposing imposition of the death penalty on persons who, at
the time of the offense, suffered from a severe mental disability or disorder that affected their
capacity or ability to “(1) to appreciate the nature, consequences or wrongfulness of their
conduct; (2) to exercise rational judgment in relation to their conduct; or (3) to conform their
conduct to the requirements of the law.”®
Mental Illness after Sentencing
Concers about a prisoner’s mental competence and suitability for execution also arise long after
the prisoner has been sentenced to death. Almost thirteen percent of all prisoners executed in the
For example, the AAIDD defines mental retardation as “a disability characterized by significant limitations both
in intellectual functioning (reasoning, learning, problem solving) and in adaptive behavior, which covers a range of
everyday social and practical skills[, and which] originates before the age of 18.” FAQ on Intellectual Disability,
supra note 1. The DSM defines a person as mentally retarded if, before the age of 18, he or she exhibits
“significantly subaverage intellectual functioning and concurrent deficits or impairments in present adaptive
functioning.” AM. PSYCHIATRIC ASS'N, supra note 3, at 39.
5 536 USS. at 318.
6 ABA, RECOMMENDATION 122A, 2006 Ann. Mtg. (adopted Aug. 7-8, 2006), available at
http://www2.americanbar.org/sdl/D ocuments/2006_AM_122A.pdf.
380
modem death penalty era have been “volunteers,” or prisoners who elected to forgo all available
appeals.’ When a prisoner seeks to forgo or terminate post-conviction proceedings, jurisdictions
should implement procedures that will ensure that the prisoner fully understands the
consequences of that decision, and that the prisoner's decision is not the product of his/her
mental illness or disability.
Irrespective of a state’s law on the application of the death penalty to offenders with mental
retardation or mental illness, mental disabilities and disorders can affect every stage of a capital
trial. Evidence of mental illness is relevant to the defendant’s competence to stand trial, it may
provide a defense to the murder charge, and it can be the centerpiece of the mitigation case.
Conversely, when the judge, prosecutor, defense attorney, or jury is misinformed about the
nature of mental illness and its relevance to the defendant's culpability and life experience, tragic
consequences often follow for the defendant.
Juries often mistakenly treat mental illness as an aggravating factor rather than a mitigating
factor in capital cases. States, in turn, have often failed to monitor or correct such unintended
and unfair results. For example, a state’s capital sentencing statute may provide a list of
mitigating factors that implicate mental illness, such as whether the defendant was under
“extreme mental or emotional disturbance” or whether the defendant had the capacity to
“appreciate the criminality (wrongfulness) of his[/her] conduct” at the time of the offense;
however, these factors are read to jurors without further explanation or without any discussion of
their relationship to mental illness.® One study found specifically that jurors’ consideration of
“extreme mental or emotional disturbance” in capital cases correlated positively with decisions
to impose death sentences.
Mental illness particularly weighs against a capital defendant when it is considered in the context
of determining “future dangerousness,” a criterion for imposing the death penalty in some
jurisdictions. One study showed that a judge’s instructions on future dangerousness led mock
jurors to believe that the death penalty was mandatory for mentally ill defendants. This
perception unquestionably affects decisions in capital cases. In addition, the medication some
mentally ill defendants receive during trial often causes them to appear detached and
unremorseful. This, too, can lead jurors to impose a sentence of death.
7 John Blume, Killing the Willing: Volunteers, Suicide, and Competency, 103 MIcH. L. REV. 939, 959 (2005).
8 State death penalty statutes based upon the Model Penal Code list three mitigating factors that implicate mental
illness: (1) whether the defendant was under “extreme mental or emotional disturbance” at the time of the offense;
(2) whether “the capacity of the defendant to appreciate the criminality (wrongfulness) of his[/her] conduct or to
conform his[/her] conduct to the requirements of law was impaired as a result of mental disease or defect or
intoxication;” and (3) whether “the murder was committed under circumstances which the defendant believed to
provide a moral justification or extenuation of his[/her] conduct.” MODEL PENAL CobE § 210.6(1)(f), 4(b), (d), (g)
(1962). In 2009, the American Law Institute formally withdrew all Model Penal Code provisions related to the
imposition of capital punishment. Adam Liptak, Group Gives Up Death Penalty Work, N.Y. Times, Jan. 4, 2010,
http://www.nytimes.com/2010/01/05/us/O5bar.html (last visited on July 11, 2011).
381
I. FACTUAL DISCUSSION: KENTUCKY OVERVIEW
A. Mental Retardation
In 1990, the Kentucky General Assembly adopted section 532.140 of the Kentucky Revised
Statutes (KRS), prohibiting the imposition of the death penalty on an offender who was seriously
mentally retarded at the time of the offense.° Section 532.140 allows a capital defendant to raise
his/her mental retardation as a bar to execution in a pretrial motion, as long as the defendant's
trial commenced after the law’s effective date on July 13, 1990. 10 Death row inmates sentenced
prior to 1990 may raise mental retardation claims in post-conviction proceedings. !"
1. Definition of Mental Retardation
KRS 532.130 defines a “seriously mentally retarded defendant” as an individual with
“significant subaverage intellectual functioning existing concurrently with substantial deficits in
adaptive behavior and manifested during the developmental period.”
The KRS defines significant subaverage intellectual functioning as an intelligence quotient (IQ)
of seventy or below.’ The Kentucky Supreme Court has interpreted the statute to include
mildly and moderately mentally retarded offenders as well as “seriously mentally retarded”
offenders.'* KRS 532.130 imposes a strict IQ maximum of seventy; therefore, a capital
defendant with an IQ in the low to mid-seventies may be sentenced to death.!° Trial courts are
not required to consider a potential rate of error in determining a defendant's 1Q.1°
The KRS does not provide a definition of “adaptive behavior.” In Bowling v. Commonwealth,
the Kentucky Supreme Court held that Kentucky’s statutory scheme on mental retardation
generally conforms to the clinical definitions established by the American Association on Mental
Retardation and the American Psychiatric Association, as described in Atkins v. Virginia.” In
addition, the statute requires a capital defendant to show two or more deficits in adaptive
9 Ky. Rev. STaT. ANN. § 532.140 (West 2011) (effective July 13, 1990) (originally enacted as 1990 Ky. Enact.
Acts, ch. 488 § 3 (S.B. 172)).
10 Ky. REv. STAT. ANN. § 532.140(3) (West 2011); Bowling v. Commonwealth, 163 S.W.3d 361, 371-72 (Ky.
2005) (noting that Bowling had procedurally defaulted on mental retardation claim because he failed to raise the
issue at his original trial that began on December 10, 1990).
11 Bowling 163 S.W.3d at 371. See also infra notes 37-60 and accompanying text.
© Ky. REV. STAT. ANN. § 532.130(2) (West 2011).
13 Id. See also Ky. REV. STAT. ANN. § 504.020(2) (West 2011) (clarifying that mental illness or mental
retardation does not include an abnormality manifested only by “repeated criminal or otherwise antisocial conduct”);
Ky. Rev. Stat. ANN. § 504.060(7) (West 2011) (adding that mental retardation is a condition which may exist
concurrently with mental illness or insanity).
ut Bowling, 163 S.W.3d at 373 (“[T]he fact that our statute refers to persons with IQs of 70 or below as ‘severely’
mentally retarded does not change the fact that an IQ of 70 or below includes the mildly, moderately, severely and
profoundly mentally retarded” per the AAMR and DSM-IV definitions of mental retardation”).
18 Bowling, 163 S.W.3d at 376 (“The General Assembly's adoption of a bright-line maximum IQ of 70 as the
ceiling for mental retardation ‘generally conform[s]’ to the clinical definitions approved in Atkins, thus does not
implicate the Eighth Amendment s proscription against ‘cruel and unusual’ punishment.”).
18 Bowling v. Commonwealth, 163 S.W.3d 361, 375-76 (Ky. 2005).
‘7 Bowling, 163 S.W.3d at 370, 375; Atkins v. Virginia, 536 U.S. 304 (2002).
382
behavior.’® Atkins defines deficits in adaptive behavior as significant limitations in “at least two
of the following skill areas: communication, self-care, home living, social/interpersonal skills,
use of community resources, self-direction, functional academic skills, work, leisure, health, and
safety....”
Finally, while the KRS does not provide a definition of the “developmental period” in which the
offender's alleged mental retardation must have been diagnosed, the Bowling Court noted that
“mental retardation is a developmental disability that becomes apparent before adulthood.”””
2. Pretrial Procedures for Raising Mental Retardation Claims
A capital defendant must provide pretrial notice if s/he intends to raise mental retardation as a
bar to imposition of a death sentence.” The defendant must also provide pretrial notice if s/he
intends to present any expert testimony relating to his/her mental condition during trial or at
sentencing.”
a. Pretrial Determination to Exclude the Death Penalty as a Sentencing Option
Pursuant to KRS 532.135, a capital defendant may raise the issue of mental retardation as a bar
to execution by filing a motion, at least thirty days prior to trial, seeking a pretrial determination
from the court that the defendant is “seriously mentally retarded.”** The trial judge, not the jury,
must determine whether a defendant has mental retardation, and is therefore ineligible for the
death penalty “at least ten days before the beginning of the trial.”**
Once the defendant raises the issue of mental retardation, the trial court must determine whether
to conduct an evidentiary hearing.*? The defendant must make “at least a prima facie showing
that the defendant may, in fact, be mentally retarded.””° To meet the prima facie standard, the
“defendant must produce some evidence creating a doubt as to whether he is mentally
retarded.””’ If the court denies the defendant an evidentiary hearing, on direct appeal, the
a8 Bowling, 163 S.W.3d at 370 n.8 (“Use of the word ‘deficits,’ as opposed to ‘deficit,’ reflects a legislative intent
to require ‘two or more deficits,’ in accordance with the definitions formulated by the AAMR and the American
Psychiatric A ssociation.”).
19" Bowling, 163 S.W.3d at 368 (citing Atkins v. Virginia, 536 U.S. 304, 314 (2002)).
20 Bowling, 163 S.W.3d at 377.
2! Ky. REV. STAT. ANN. § 532.135(1) (West 2011).
% Ky. REV. STAT. ANN. § 504.070(1) (West 2011).
33 Ky. REV. STAT. ANN. §§ 532.130(2), 532.135(1) (West 2011). The defense must file a motion to exclude death
penalty because of mental retardation. See Barnett v. Commonwealth, 317 S.W.3d 49, 56 (Ky. 2010); Ky. REv.
STAT. ANN. § 532.135(1) (West 2011).
4 Ky. Rev. STAT. ANN. § 532.135(2) (West 2011). In Bowling, the Kentucky Supreme Court found that there is
“nothing unconstitutional or contrary to Atkins in the requirement in KRS 532.135 that mental retardation be
determined prior to trial.” Bowling v. Commonwealth, 163 S.W.3d 361, 377 (Ky. 2005).
5 Bowling, 163 S.W.3d at 384.
6 Bowling, 163 S.W.3d at 383.
fs Bowling, 163 S.W.3d at 384. In addition, if the court has concerns about a capital defendant’s mental capacity,
the court, on its own motion, may order the defendant to be evaluated and tested, including IQ testing, at the
Kentucky Correctional Psychiatric Center (KCPC). Ky. REV. STAT. ANN. § 504.100 (West 2011); Ky. R. Cri. P.
8.06; Bowling, 163 S.W.3d at 384; Edmonds v. Commonwealth, No. 2007-SC-000350-MR, 2009 WL 4263142, at
383
Kentucky Supreme Court will review whether that denial resulted in a “fundamental miscarriage
of justice.”
Only if the defendant makes a prima facie showing of mental retardation will the court conduct a
full evidentiary hearing.” At the hearing, the defendant has the burden to allege and prove that
s/he qualifies for the exemption, by presenting evidence to demonstrate his/her mental
retardation, and the Commonwealth is permitted to present rebuttal evidence.*’ Both the defense
and Commonwealth may produce documentary evidence, such as school test scores, and
witnesses, such as psychologists or psychiatrists who have tested the defendant’s IQ and can
testify as to the defendant's IQ, the defendant's adaptive behavior or social history, and when the
mental retardation first manifested.*! Based on this evidence, the trial court must determine
whether the defendant has proven, by a preponderance of the evidence, that s/he was mentally
retarded at the time of the offense.” The defendant may challenge the trial court’s decision on
direct appeal.*? Unless the defendant raised mental retardation as a bar to execution before trial,
the issue will be waived and may not be raised on direct appeal.*#
If the trial court determines a defendant is mentally retarded, and the defendant is subsequently
convicted of a capital crime, s/he will be subject to “imprisonment for life without benefit of
probation or parole, or . . . imprisonment for life without benefit of probation or parole until
[s/]he has served a minimum of twenty-five (25) years of his[/her] sentence, or to a sentence of
life, or to a term of not less than twenty (20) years nor more than fifty (50) years.”*°
*11 (Ky. Nov. 25, 2009); Woodall v. Commonwealth, No. 2003-SC-000475-MR, 2005 WL 3131603, at *1 (Ky.
Nov. 23, 2005).
aa Bowling, 163 S.W.3d at 384 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Parrish v.
Commonwealth, 272 S.W.3d 161, 167 (Ky. 2008) (“If Appellant wanted to challenge the substance of the trial
court's ruling on [the defendant’s mental retardation claim], he should have done so in his direct appeal, not by
means of an RCr 11.42 motion. ‘It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues
which could and should have been raised in the original proceeding, nor those that were raised in the trial court and
upon an appeal considered by this court.’”) (citing Thacker v. Commonwealth, 476 S.W.2d 838, 839 (Ky. 1972)).
Bowling, 163 S.W.3d at 383; Ky. Rev. STAT. ANN. § 532.135(1) (West 2011); see also Skaggs v.
Commonwealth, 330 S.W.3d 52, 54 (Ky. 2005) (comparing the evidence of mental retardation in the instant case to
Bowling, where no evidentiary hearing was deemed necessary based on the evidence available, and remanding to the
trial court to hold an evidentiary hearing because “some evidence creating a doubt as to whether [Skaggs] is
mentally retarded” existed).
30 Ky. REV. STAT. ANN. § 532.135(1) (West 2011) (placing the burden on the defendant to allege and prove that
s/he or she qualifies for the exemption). See also Bowling, 163 S.W.3d at 370 (noting that Kentucky’s statutory
scheme “places the burden on the defendant to allege and prove that he or she qualifies for the exemption, [] but
does not establish the standard of proof applicable to that burden”).
5! Ky. REV. STAT. ANN. § 532.135(1) (West 2011); Ky. R. CRIM. P. 7.24; Parrish v. Commonwealth, 272 S.W.3d
161, 167 (Ky. 2008); Skaggs, 330 S.W.3d at 53-54.
ah Bowling v. Commonwealth, 163 S.W.3d 361, 382 (Ky. 2005) (applying the preponderance of the evidence as
the burden of proof).
Parrish, 272 S.W.3d at 167.
3 Bowling, 163 S.W.3d at 384.
35 Ky. REV. STAT. ANN. § 532.140(1) (West 2011) (specifying that the same sentencing procedures apply to
seriously mentally retarded offenders who are subsequently convicted of the underlying capital offense); Ky. REV.
STAT. ANN. § 532.030(1) (West 2011) (listing the possible punishments). See, e.g., Collett v. Commonwealth, No.
2002-SC-1025-MR, 2004 WL 1907058, at *1 n.1 (Ky. Aug. 26, 2004) (noting that appellant's mental retardation
precluded the Commonwealth from seeking the death penalty).
384
Furthermore, if the capital defendant’s mental retardation claim is raised and rejected, the
defendant may nonetheless raise any legal defense related to his/her mental condition during
trial, and may also offer evidence of mental retardation as a mitigating circumstance during the
sentencing phase. °°
3. Post-Conviction Determinations of Mental Retardation
Death row inmates sentenced after July 13, 1990 may raise mental retardation as a bar to
execution during post-conviction proceedings.” Death row inmates sentenced prior to the 1990
statutory ban may raise mental retardation in a successive collateral attack.*®
a. Procedures Applicable to Death Penalty Cases Conducted On or After 1990
A death row inmate sentenced after July 13, 1990 may raise his/her mental retardation as a bar to
execution during post-conviction proceedings, via Kentucky Criminal Procedure Rule (RCr)
11.42.°° A RCr 11.42 petition generally must be filed within three years after the judgment in
the challenged case becomes final.*° However, post-conviction relief will be barred if the issue
has been previously determined or waived.’ Consequently, a petitioner sentenced to death after
July 13, 1990, who had the opportunity to raise the issue of mental retardation at trial but failed
to do so, will be barred from raising mental retardation as a bar to execution in his/her post-
conviction petition."? A death row inmate who raised mental retardation at trial is entitled to a
hearing on his/her RCr 11.42 motion “if there is a material issue of fact that cannot be
conclusively resolved, i.e., conclusively proved or disproved, by an examination of the record,” “3
An inmate may also reopen his/her post-conviction proceedings through Kentucky Civil
Procedure Rule (CR) 60.02, which provides relief on issues that could not have been raised at
trial, on direct appeal, or by a motion for relief under RCr 11.42 on post-conviction review.”*
The Kentucky Supreme Court held that CR 60.02 “is an appropriate vehicle by which to seek
8° Ky. REV. STAT. ANN. § 532.135(4) (West 2011); Bowling, 163 S.W.3d at 381.
7 Ky. R. CRIM. P, 11.42(1); Ky. R. Civ. P. 60.02; Bowling, 163 S.W.3d at 369.
oe Bowling v. Commonwealth, 163 S.W.3d 361, 371 (Ky. 2005) (“[I]f a condemned mentally retarded offender
had been tried prior to the effective date of the Kentucky Statutes, Atkins would exempt that offender from the death
penalty.”).
Ky. R. Crim. P. 11.42(1). If the petition is denied, the death row inmate can appeal to the Kentucky Supreme
Court as a matter of right. See, e.g., Parrish v. Commonwealth, 272 S.W.3d 161, 166 (Ky. 2008).
“© Ky. R. CRIM. P 11.42(8), 11.42(10). See also Ky. REV. STAT. ANN. § 532.075(1) (West 2011) (requiring the
Kentucky Supreme Court to review all death sentences handed down by a trial court).
4 See Bowling, 163 S.W.3d at 372; Leonard, 279 S.W.3d at 154-55.
Bowling, 163 S.W.3d at 371-72. In Bowling, the Kentucky Supreme Court discusses the new constitutional
right created in Atkins and noting that “[e]ven a constitutional right can be waived by failure to timely assert it.”
Bowling, 163 S.W.3d at 371 (citing Breard v. Greene, 523 U.S. 371, 376 (1998)).
‘3 Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky. 2001); Ky. R. CRIM. P 11.42(5) (requiring a hearing “if the
answer raises a material issue of fact that cannot be determined on the face of the record. ..”). See also Stanford v.
Commonwealth, 854 S.W.2d 742, 743 (Ky. 1993) (“Even in a capital case, an RCr 11.42 movant is not
automatically entitled to an evidentiary hearing.”) (citing Skaggs v. Commonwealth, 803 S.W.2d 573, 576 (Ky.
1990)).
“4 Ky. R. Cw. P. 60.02; Bowling v. Commonwealth, 163 S.W.3d 361, 365 (Ky. 2005). Also available to death
row inmates is Civil Procedure Rule 60.03, which provides equitable relief from a judgment in an independent
action. Bowling, 163 S.W.3d at 365-66.
385
relief from a judgment that is no longer valid because it violates a constitutional right that was
not recognized as such when the judgment was entered.”*° This form of relief is available to
death row inmates sentenced both before and after the 1990 statutory mental retardation
exemption.”®
b. Procedures Applicable to Death Penalty Cases Conducted Before 1990
If a death row inmate was convicted and sentenced to death prior to Kentucky’s statutory ban on
the execution of mentally retarded offenders in 1990, s/he may seek to raise the issue of mental
retardation by reopening his/her post-conviction proceedings.*
A petitioner may file for relief under RCr 11.42, despite the rule’s three-year statute of
limitations, if the inmate proves that
(1) the facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due
diligence; or
(2) the fundamental constitutional right asserted in the petition was not
established within the statute of limitations provided in Rule 11.42 and
the right has been held to apply retroactively.”®
If the motion qualifies under one of the above exceptions, the petition must be filed within three
years after the event creating the exception occurred.”
In 2005, the Kentucky Supreme Court held that Atkins v. Virginia retroactively applies to any
condemned mentally retarded offender tried prior to the effective date of Kentucky’s mental
retardation exemption statutes.°° The Court noted that a claim of mental retardation for these
offenders “may be asserted at any stage of the proceedings, presumably up to the moment of
execution.”*!
An inmate sentenced before July 13, 1990 who is seeking to reopen post-conviction proceedings
must “produce some evidence creating a doubt as to whether he is mentally retarded.” In
Bowling, despite evidence of low IQ scores, the Kentucky Supreme Court held that Bowling had
“produced no evidence that creates a doubt as to whether he was mentally retarded.” 53 However,
if the Court determines that there is some evidence that the petitioner was mentally retarded at
45 Bowling, 163 S.W.3d at 365; Ky. R. Civ. P. 60.02.
46 Bowling, 163 S.W.3d at 365, 369-71. The Kentucky Supreme Court held that although the statutory ban does
not apply retroactively, Atkins applies retroactively and thus permits a successive collateral attack. Bowling, 163
S.W.3d at 370-71.
”” Bowling, 163 S.W.3d at 365; Ky. R. Crim. P. 11.42; Ky. R. Civ. P. 60.02.
‘8 Ky. R. CRIM. P. 11.42(10)(a)-(b).
“© Ky.R. CRIM. P. 11.42(10).
5° Bowling v. Commonwealth, 163 S.W.3d 361, 370-71 (Ky. 2005).
Bt Bowling, 163 S.W.3d at 370.
Ba Bowling, 163 S.W.3d at 384.
ae Bowling, 163 S.W.3d at 384 (since the defendant produced evidence that his IQ ranged from seventy-four to
eighty-seven, the court need not address whether the defendant had “substantial deficits in adaptive behavior’).
386
the time of the offense, it may set aside the death sentence and order the trial court to hold a new
evidentiary hearing on the issue of the inmate’ s mental retardation.
If a hearing is granted, the death row inmate must prove by a preponderance of the evidence that
s/he was mentally retarded at the time of the offense.® The petitioner may produce expert and
lay witnesses, psychological examination reports, 1Q tests, school records, and any other
admissible, relevant information pertaining to the claim of mental retardation.° The
Commonwealth may produce rebuttal witnesses and evidence to disprove the petitioner's claim
and the defense may then provide additional rebuttal evidence.*” If the court determines that the
death row inmate is mentally retarded, it will hold a new sentencing hearing, excluding the death
penalty as a sentencing option.°® The Commonwealth has the right to appeal this
determination.*? Alternatively, if the court finds that the inmate is not mentally retarded, the
inmate may be re-sentenced to death.
As of November 17, 2011, twelve of the thirty-five inmates currently on Kentucky’s death row
were originally sentenced to death prior to July 13, 1990.
B. Mental Conditions other than Mental Retardation
A capital defendant may introduce evidence regarding his/her mental condition in four instances
under Kentucky law: (1) as an insanity defense, (2) as a plea or to compel a finding of “guilty but
mentally ill,” (3) to demonstrate that the defendant suffered from “extreme mental or emotional
disturbance,” and (4) as mitigation evidence during the sentencing phase of a capital trial.©!
1. Definitions of Mental Conditions
a. Definition of Insanity
oe Skaggs v. Commonwealth, 330 S.W.3d 52, 53-54 (Ky. 2005) (remanding the case back to the circuit court to
hold an evidentiary hearing to determine whether the appellant is mentally retarded based on the fact that there is
enough evidence “sufficient to entitle Appellant to an evidentiary hearing and a determination of the issue by the
trial court”). See also Bowling, 163 S.W.3d at 384 (noting that the Court’s denial of Bowling’s request for an
evidentiary hearing on his mental retardation and subsequent “[d]enial of an opportunity to further litigate this claim
will not result in the fundamental miscarriage of justice”).
55 Bowling, 163 S.W.3d at 377, 382; Skaggs, 330 S.W.3d at 54 (noting that a hearing to determine mental
retardation retrospectively is easier than determining competency “because mental retardation is generally a
‘permanent, relatively static condition’ once the person reaches adulthood and it would be ‘rare for the condition to
recede during the interim between the offense and the execution’”) (citing Bowling, 163 S.W.3d at 377).
%8 Skaggs, 330 S.W.3d at 54; Bowling v. Commonwealth, 163 $.W.3d 361, 384 (Ky. 2005).
57 Skaggs, 330 S.W.3d at 54.
58 Td. at 54 (“The mental retardation issue pertains only to the penalty issue, thus should have been resolved prior
to the commencement of the new penalty phase trial.”).
8° Td. at 55.
60 Profiles of Kentucky's Death Row Inmates, Ky. DEP’T OF Corr.,
http://www.corrections.ky.gov/inmateinfo/deathrow.htm (last visited Nov. 4, 2011). Two additional death row
inmates, David Eugene Matthews and Miguel Soto, were also sentenced to death prior to 1990, but have recently
had their death sentences overtumed by an appellate court. Order, Soto v. Commonwealth, No. 99-CR-00041
(Oldham Cir. Ct. Jan. 31, 2011) (vacating death sentence); Matthews v. Parker, No. 09-5464, 2011 WL 2518895
(6th Cir. June 27, 2011) (vacating death sentence).
*' Ky. REV. STAT. ANN, § 504.120, 532.025(2)(b) (West 2011); see Ky. R. CRIM. P. 8.08, 8.12.
387
In 1975, the Kentucky General Assembly adopted legislation that made insanity an affirmative
defense to prosecution. The KRS defines “insanity” as a “mental condition” characterized by a
“lack of substantial capacity either to appreciate the criminality of one’s conduct or to conform
one’s conduct to the requirements of law.” The “mental condition” referenced in the insanity
definition “must be a mental illness or mental retardation.” The underlying mental illness
“does not include an abnormality manifested only by repeated criminal or otherwise antisocial
conduct.”® The defense must prove the defendant was insane at the time of the offense by a
preponderance of the evidence.®
b. Definition of Mentally Ill
An individual will be considered guilty but mentally ill under Kentucky law if s/he is found to
have a “substantially impaired capacity to use self-control, judgment, or discretion in the conduct
of one’s affairs and social relations, associated with maladaptive behavior or recognized
emotional symptoms where impaired capacity, maladaptive behavior, or emotional symptoms
can be related to physiological, psychological, or social factors.”*” Thus, the mental illness does
not reach the level of severity that would render a person insane.°® Unlike insanity, mental
illness does not absolve a defendant of criminal responsibility, but instead may entitle a
convicted offender to treatment as “long as he remains mentally ill or until the expiration of his
sentence.”
To be found guilty but mentally ill, the jury must determine that a) the prosecution has proven,
beyond a reasonable doubt, that the defendant is guilty of an offense; and b) the defendant has
proven, by a preponderance of the evidence, that s/he was mentally ill at the time of the
offense.” Additionally, “[ilf the defendant waives his right to trial, the court may accept a plea
of guilty but mentally ill if it finds that the defendant was mentally ill at the time of the
offense.”
c. Definition of Extreme Emotional Disturbance
82 See Ky. REV. STAT. ANN. § 504.020 (West 2011) (effective Jan. 1, 1975).
Ky. REV. STAT. ANN. § 504.060(5) (West 2011).
51 Lickliter v. Commonwealth, 142 S.W.3d 65, 68 (Ky. 2004).
85 Ky. REV. STAT. ANN. § 504.020(2) (West 2011).
65 Brown v. Commonwealth, 934 S.W.2d 242, 247 (Ky. 1996) (reiterating the Court’s “dissatisfaction with use of
the word ‘preponderance’ in jury instructions...[and] concluding that ‘use of the term ‘preponderance’ is
redundant and bad practice, and that any attempted definition of ‘preponderance’ is perilous”) (citation omitted).
57 Ky. REV. STAT. ANN. § 504.060(6) (West 2011). In addition, the Kentucky Supreme Court has held that drug
addiction, by itself, is not a disease constituting or leading to “mental illness.” Commonwealth v. Tate, 893 S.W.2d
368, 372 (1995).
68 Brown, 934 S.W.2d at 247 (citing 1 Cooper Kentucky Instructions to Juries (Criminal) Defenses § 11.31 at 626
(1999)). A sentence of ‘guilty but mentally ill’ is available to defendants whose insanity defense does not satisfy the
insanity standard. Id.
59 McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky. 1986); Ky. Rev. STAT. ANN. § 504.150 (West 2011).
™ Ky, REV. STAT. ANN. § 504.130(1) (West 2011).
7 Ky, REV. STAT. ANN. § 504.130(2) (West 2011).
388
Rather than relieving a defendant of criminal responsibility, proof of extreme emotional
disturbance (EED) at the time of the offense reduces the degree of a homicide from murder to
manslaughter.” The Kentucky Supreme Court has clearly distinguished EED from mental
illness or insanity, explaining that EED is a temporary state of mind due to a “sudden and
uninterrupted .. . event which triggers the explosion of violence on the part of the criminal
defendant.”
EED is based on a subjective reasonableness determined by the viewpoint of “a person in the
defendant's situation under the circumstances as the defendant believed them to be.””* Noting
the absence of a statutory definition, the Kentucky Supreme Court has defined EED as “a
temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and
to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance
rather than from evil or malicious purposes.” ’’ Evidence of a defendant's mental condition is
admissible to establish EED at the guilt phase.”°
d. Definition of Mental Condition at Sentencing
Evidence of mental illness is also relevant as mitigation during the capital sentencing phase.””
Kentucky’s two statutory mitigating factors pertaining to mental condition and mental illness are
whether (1) the defendant was under the influence of extreme mental or emotional disturbance,
and (2) the capacity of the defendant to appreciate the criminality of his/her conduct or to
conform his/her conduct to the requirements of law was substantially impaired.” In addition to
the statutory mitigating factors, the judge or jury may consider any aspect of a defendant's
character or mental health or any other circumstance “of the offense that the defendant proffers
as a basis for a sentence less than death.””°
2. Pretrial Procedures to Raise Insanity or Mental Illness
If a defendant intends to introduce any evidence relating to any mental condition relevant to guilt
or punishment, s/he must provide written notice to the court and the Commonwealth at least
” Ky. REV. STAT. ANN. § 507.020(1)(a) (West 2011); McClellan, 715 S.W.2d at 469.
Hunt v. Commonwealth, 304 S.W.3d 15, 34 (Ky. 2009) (citing Foster v. Commonwealth, 827 S.W.2d 670, 678
(Ky. 1991)).
™” Ky. REV. STAT. ANN. § 507.020(1)(a) (West 2011); McClellan, 715 S.W.2d at 469. The Court likened EED to
the now-defunct “sudden heat of passion” provocation, noting that EED allows the provocation to be caused by any
circumstance rather than limiting it to an act by the victim. McClellan, 715 S.W.2d at 469.
75 McClellan, 715 S.W.2d at 468-69 (there is no statutory definition for EED). See also Ky. REV. STAT. ANN. §
507.030(1) (West 2011); Eric Y. Drogin, To the Brink of Insanity: “Extreme Emotional Disturbance” in Kentucky
Law, 26 N. Ky. L.REv. 99, 107-08, 126 (1999) ("The only practical difference between [EED] and that of
Kentucky's ‘insanity’ defense is that the existence of some ‘triggering event’ is substituted for an extant ‘mental
condition.’”).
% See Coffey v. Messer, 945 S.W.2d 944, 945-46 (Ky. 1997) (noting that EED is a defense to the extent that it
precludes a conviction of murder).
7 Ky, REV. STAT. ANN. § 532.025(2)(b)(2) (West 2011).
7 Ky. Rev. STAT. ANN. § 532.025(2)(b)(2), (2)(b)(7) (West 2011). Jury instructions at the sentencing phase of a
capital trial state that the jury may consider evidence pertaining to both of these statutory mitigating factors, even if
the evidence presented at trial “was not sufficient to constitute a defense to the crime.” 1 W. Cooper & D. CETRULO,
KENTUCKY INSTRUCTIONS TO JURIES (Criminal) § 12.05 (5th ed. 2010).
7 Parrish v. Commonwealth, 272 S.W.3d 161, 174 (Ky. 2008) (intemal citation omitted).
389
twenty days prior to trial.’ Failure of the defense to provide pretrial notice may result in the
exclusion of any evidence on the issue, including expert testimony.*' At least ten days prior to
trial, the Commonwealth is required to “file the names and addresses of witnesses it proposes to
offer in rebuttal, along with reports prepared by its witnesses.”*”
a. Examination of the Defendant
Once the defendant has provided notice of his/her intent to present evidence of his/her mental
condition, the trial court may order a mental examination of the defendant, either upon the
Commonwealth’s request or by its own motion.’ The court will appoint “at least one
psychologist or psychiatrist to examine, treat, and report on the defendant's mental condition”
and the defendant may be committed to the Kentucky Correctional Psychiatric Center for up to
thirty days for this purpose. A psychologist or psychiatrist retained by the defense may
participate in the examination.® A defendant must submit to the court-ordered examination or,
if the defendant refuses, the court may exclude any evidence offered by the defense on the
issue.
The defendant is not entitled to have counsel present at the mental examination.®” No statement
made by the defendant during the course of the examination, or any expert testimony based on
that statement, is admissible into evidence against the defendant in any criminal proceeding,
unless the defendant first introduces testimony on the particular issue.” Information revealed by
the defendant during the examination that relates to punishment will be disclosed to both parties
if the defendant is found guilty.®°
At any time, the defendant may withdraw his/her notice of intent to offer expert mental condition
testimony.°” If the defendant withdraws the notice of intent, any evidence of the intent to raise
the existence of a mental condition is not admissible in any proceeding against the defendant.’
80 Ky. REV. STAT. ANN. § 504.070(1) (West 2011); Ky. R. CRIM. P. 7.24(3)(B)(i) (“at least 20 days prior to trial or
at such later time as the court may direct”).
®! Ky. R. CRIM. P. 7.24(3)(C).
& Ky. REV. STAT. ANN. § 504.070(4) (West 2011).
Ky. REV. STAT. ANN. § 504.070(2) (West 2011); Ky. R. CRIM. P. 7.24(3)(B)(ii). In addition, the court may
order the defendant to submit to a mental examination by a court-appointed expert at any stage of a felony criminal
proceeding including pretrial, trial, sentencing, or post-conviction, if the court has concems about the defendant's
competency to stand trial. Ky. REV. STAT. ANN. § 504.100(1) (West 2011).
81 Ky. REV. STAT. ANN. § 504.070(3) (West 2011). See also Ky. REV. STAT. ANN. § 504.080(1)-(2) (West 2011).
® Ky. REV. STAT. ANN. § 504.080(5) (West 2011).
86 Ky. R. Crim. P. 7.24(3)(C). The Kentucky Supreme Court has held that a pretrial mental examination is not a
“compelled examination” because it is initiated by the defendant's notice of intent to introduce mental condition
evidence. Bishop v. Caudill, 118 S.W.3d 159, 164 (Ky. 2003).
87 Cain v. Abramson, 220 $.W.3d 276, 281 (Ky. 2007) (holding that the defendant does not have the right to have
counsel present at the mental examination because it is not a “critical stage” of a criminal proceeding); see also
Coffey v. Messer, 945 S.W.2d 944, 947 (Ky. 1997) (noting that defendant's Sixth Amendment rights are protected
because the defendant gets advance notice of the examination and an opportunity to consult with defense counsel
before the examination occurs).
88 Ky. R. CRIM. P. 7.24(3)(B)(ii). See also Bishop, 118 S.W.3d at 164 (noting that defendant’ s Fifth Amendment
Tights are protected by the language contained in Rule 7.24(3)(B)(ii)); Coffey, 945 S.W.2d at 947.
80" Ky. R. Crim. P. 7.24(3)(B)(ii). The parties may also agree to other terms of disclosure. Id.
Ky. R. CRIM. P. 7.24(3)(D).
390
3. Trial Proceedings
Kentucky law allows a capital defendant to plead guilty, not guilty, or guilty but mentally ill.°”
An insanity defense is raised under a general plea of not guilty.”
a. Insanity
During a criminal trial, a defendant must prove by a preponderance of the evidence that s/he was
insane at the time of the offense.** The defendant may introduce mental health expert testimony
as well as lay witness testimony and other evidence regarding the defendant's insanity or mental
condition at the time of the offense.” The Commonwealth, in turn, may introduce its own
mental condition evidence, including expert and lay witness testimony, to refute the defense
experts’ conclusions.°® The Commonwealth also may introduce statements made by the
defendant during his/her pretrial mental examination to impeach or rebut evidence previously
proffered concerning the defendant’s mental state.°’ The defense also has the opportunity to
rebut the Commonwealth’s evidence or impeach the Commonwealth's testimony.
If any evidence on insanity is presented at trial, the trier of fact must make a determination about
the capital defendant's sanity or insanity.°? The trial judge must instruct the jury on the relevant
areas of law and the possible verdicts that the evidence may support.’ If there is enough
evidence to support an insanity verdict, the judge must instruct the jury to state a finding of
insanity; alternatively, the judge will instruct the jury to reject the insanity defense if it finds the
defendant guilty but mentally ill.’°"
Additionally, either party may request the judge to instruct the jury on the procedural disposition
of the defendant upon either a verdict of not guilty by reason of insanity or guilty but mentally
il!” The judge must inform the jury that if a defendant is found not guilty by reason of
Id.
2 Ky. R. CRIM. P. 8.08, 8.12. Kentucky Criminal Procedure Rule 8.12 limits available pleas in a criminal case to
pleas of guilty, guilty but mentally ill, and not guilty. Ky. R. CRIM. P. 8.12.
3 Ky. R. CRIM. P. 8.08, 8.12, 9.90; Ky. REV. STAT. ANN. § 504.120 (West 2011). Although the Commonwealth
allows a specific verdict of not guilty by reason of insanity, there is no special plea of “not guilty by reason of
insanity.” Ky. R. CRIM. P. 8.12.
% Brown v. Commonwealth, 934 S.W.2d 242, 247 (Ky. 1996); Ky. Rev. STAT. ANN. § 500.070(3) (West 2011);
Ky.R. Crim. P. 9.42(d).
% See Ky. REV. STAT. ANN. § 504.020 (West 2011); Ky. R. CRIM. P. 7.24(3)(B)(i)-(ii). See generally Woodall v.
Commonwealth, 63 S.W.3d 104, 126-27 (Ky. 2001) (mental health evidence offered by defendant pursuant to KRS
504.070 may relate to guilt or mitigation); Brown, 934 S.W.2d at 248 (lay witness testimony admissible on the
defendant's sanity).
9 Ky. R. CRIM. P. 9.42(c)-(e); Ky. REV. STAT. ANN. § 504.070(4) (West 2011). However, “expert witnesses are
not required to be rebutted by expert witnesses.” Conley v. Commonwealth, No. 2006-SC-000427-MR, 2007 WL
2404510, at *3 (Ky. Aug. 23, 2007).
Ky. R. CRIM. P. 7.24(3)(B)(ii).
8 Brown, 934 S.W.2d at 247.
® Cannon v. Commonwealth, 777 S.W.2d 591, 593 (Ky. 1989).
100 Ky. R. CRIM. P. 9.54(1); Jenkins v. Commonwealth, 413 S.W.2d 624, 626 (Ky. 1966).
10. Ky. R. CRIM. P. 9.90(1), 9.55; Brown v. Commonwealth, 934 S.W.2d 242, 247 (Ky. 1996).
1 Ky. R. CRIM. P. 9.55; see also Brown, 934 S.W.2d at 245-46.
391
insanity, the court may order the defendant to be involuntarily hospitalized under Kentucky’s
statutory civil commitment procedures on its own motion or on motion by the
Commonwealth." Alternatively, the judge must instruct the jury that a defendant found guilty
but mentally ill will be sentenced as any other offender and that “treatment shall be provided [to]
the defendant until the treating professional determines that such treatment is no longer
necessary or until the expiration of his sentence, whichever occurs first.”!™
Upon a verdict of not guilty by reason of insanity, the court may order the defendant to be
detained for ten days and examined to determine whether s/he meets the criteria for a civil
commitment.’ A defendant found not guilty by reason of insanity may be civilly committed
only if s/he is found to be a danger to him/herself or others.’ Upon a determination of
dangerousness, a petition may be filed to involuntarily hospitalize the acquitted defendant for a
period of sixty days or 360 days.” However, at the time of the verdict, if “there are no
reasonable grounds for the court to believe the defendant will cause injury to himself or others if
not immediately restrained, [then] even the short-term, temporary commitment . . . cannot be
ordered.”
Once involuntarily hospitalized, a defendant or his/her friend, relative, guardian, representative,
or attorney, may at any time and without notice file for a writ of habeas corpus in the circuit
court to challenge the legality of the detention.’°° When the hospitalized patient no longer meets
the criteria for involuntary civil commitment, an authorized staff physician shall discharge
him/her.!"° At discharge, the administrator of the forensic psychiatric facility must notify “the
law enforcement agency in the county to which the person is to be released, the prosecutor in the
county where the violent crime was committed, and the Department of Corrections.” in
b. Guilty but Mentally Ill
A capital defendant may be found guilty but mentally ill after a jury trial or the accused may
waive his/her right to a jury trial and enter a plea of “guilty but mentally ill.”""* At trial, a capital
defendant may be found guilty but mentally ill if “(1) [t]he prosecution proves beyond a
18 Ky. REV. STAT. ANN. § 504.030(1) (West 2011).
lot Ky. REV. STAT. ANN. § 504.150 (West 2011); Brown, 934 S.W.2d at 246 (suggesting that although the “bare
bones” instruction reflecting the exact language of KRS 504.150 is constitutional, if it is truly uncertain that a guilty
but mentally ill inmate will actually receive treatment, this uncertainty should be reflected in the dispositional
instruction). For more information on guilty but mentally ill, see infra notes 112-129 and accompanying text.
"5" Ky. REV. STAT. ANN. § 504.030 (West 2011).
106 Ky. REV. STAT. ANN. § 202.026 (West 2011) (stating that to be involuntarily hospitalized, a mentally ill
person presents a danger to him/herself or others, can reasonably benefit from treatment, and “[flor whom
hospitalization is the least restrictive mode of treatment presently available”).
107 Ky. REV. STAT. ANN. § 202A.051(1) (West 2011). A petition for involuntary hospitalization of a person may
be filed by a qualified mental health professional, peace officer, county or Commonwealth attomey, spouse, relative,
friend or guardian or any other interested party. Ky. REV. STAT. ANN. § 202A.051(3) (West 2011).
108 Edwards v. Commonwealth, 554 S.W.2d 380, 384 (1977).
09 Ky. REV. STAT. ANN. § 202.151 (West 2011).
NO" Ky. REV. STAT. ANN. § 202A.171 (West 2011).
Ml Ky. REV. STAT. ANN. § 202A.410(1) (West 2011) (requiring notification at the discharge of someone “who has
been charged with or convicted of a violent crime”).
12" Ky. REV. STAT. ANN. § 504.120(4), 504.130 (West 2011) (effective July 15, 1982); Ky. R. CRIM. P. 8.08.
392
reasonable doubt that the defendant is guilty of an offense; and (2) [t]he defendant proves by a
preponderance of the evidence that [s/]he was mentally ill at the time of the offense.”!!> Similar
to cases where an insanity defense is raised, the defendant may introduce mental health evidence,
including expert and lay witness testimony, regarding the defendant’s mental condition at the
time of the offense.’ The Commonwealth may introduce evidence and testimony on the
defendant's mental condition to impeach or refute evidence offered by the defense, and the
defense will be provided with the opportunity to present rebuttal evidence.'’° At the request of
either party, the Judge must instruct the jury on the procedural consequences of a guilty but
mentally ill verdict.’
In lieu of trial, the court may accept a plea of guilty but mentally ill, and can do so “without the
acquiescence of the Commonwealth.”""” The trial court must make findings of fact with respect
to the defendant's mental illness before accepting the plea.'”® If the court refuses to accept a
plea of guilty but mentally ill, the court may accept a plea of guilty or enter a plea of not
guilty.!"° At any time prior to judgment, the defendant is permitted to withdraw a plea of guilty
but mentally ill and substitute a plea of not guilty.'° If the court accepts a guilty plea, including
a plea of guilty but mentally ill, the capital offender can choose whether to be sentenced by the
trial judge ora jury."
If a defendant is found guilty but mentally ill, the court may appoint at least one psychologist or
psychiatrist to examine, treat and report on the defendant’s mental condition at sentencing.”
An offender found guilty but mentally ill is sentenced as any other guilty defendant, !” and will
US’ Ky. REV. STAT. ANN. § 504.130(1) (West 2011).
"4 Ky. R. Crim. P. 7.24(3)(B)(i); Mitchell v. Commonwealth, 781 S.W.2d 510, 512 (Ky. 1989) (discussing the
evidence supporting the guilty but mentally ill verdict, which included case records and notes of social workers and
psychiatric expert testimony).
© Ky. R. CRIM. P. 7.24(3)(B)(ii), 9.42; Conley v. Commonwealth, No. 2006-SC-000427-MR, 2007 WL 2404510,
at *3 (Ky. Aug. 23, 2007).
NG Ky. R. CRIM. P. 9.55; Brown v. Commonwealth, 934 S.W.2d 242, 246-47 (Ky. 1996) (where a defendant
challenged the constitutionality of a GBMI verdict, although the Kentucky Supreme Court refused to make a
determination on the verdict citing an insufficient record); see supra note 102-105 and accompanying text.
U7 Ky. REV. STAT. ANN. § 504.130(2) (West 2011); Ky. R. CRIM. P. 8.08 (“The court may refuse to accept a plea
of guilty or guilty but mentally ill, and shall not accept the plea without first determining that the plea is made
voluntarily and with understanding of the nature of the charge.”); Commonwealth v. Ryan, 5 S.W.3d 113, 116 (Ky.
1999) (finding that the Court may accept a plea of guilty but mentally ill over the Commonwealth's objections),
abrogated on other grounds by Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004).
US Ky. REV. STAT. ANN. § 504.130(2) (West 2011); Ryan, 5 S.W.3d at 115 (requiring findings of fact before
accepting a guilty but mentally ill plea).
9_Ky. R. Crim. P. 8.10; Julia Hunter, Kevin Dunlap pleas guilty to Trigg slayings, Ky. NEw ERA, Feb. 9, 2010,
http://www.kentuckynewera.com/web/news/article_989977fc-2709-54dc-adce-07e88581628d.html (last visited July
11, 2011).
20 Ky. R. CRIM. P. 8.10.
2 Ky. R. Crim. P. 9.84(2).
122 Ky, Rev. STAT. ANN. § 504.140 (West 2011). But see Wellman v. Commonwealth, 694 S.W.2d 696, 698
(where the Kentucky Supreme Court interprets KRS 504.140 to require the appointment of a psychologist to
examine a defendant found GBMI prior to sentencing, despite the absence of statutory language mandating the
appointment) Fs
123" See Ky. Rev. STAT. ANN. § 504.150 (West 2011). However, the DOC can initiate commitment proceedings for
any inmate the DOC deems to need mental health care at the expiration of his sentence. See Ky. REV. STAT. ANN. §
196.065(2) (West 2011).
393
serve out his/her sentence in the same local jail or Department of Corrections facility as any
other convicted defendant.!** The Kentucky Supreme Court has explained that a “plea of guilty
but mentally ill does not inherently limit the sentence that may be imposed but may provide for
additional mental health treatment after the defendant is committed to a correctional facility.” ”°
However, treatment is not guaranteed to mentally ill offenders, and the Court has acknowledged
that the promise of treatment for defendants found guilty but mentally ill may not actually come
to fruition.’*° After sentencing, the convicted defendant may be treated “until the treating
professional determines that the treatment is no longer necessary or until expiration of his
sentence, whichever occurs first.” !2”
The Kentucky Supreme Court has held that the Eighth Amendment does not preclude the
imposition of a death sentence on a person with mental illness that does not rise to the level of
insanity.!"8 The Court has also noted that despite there being no prohibition on sentencing a
guilty but mentally ill offender to death, the Commonwealth has never done so.!”°
c. Evidence to Negate Mens Rea/Extreme Emotional Disturbance
A defendant may introduce evidence regarding his/her mental condition even if his/her state of
mind at the time of the offense does not conform to the exact requirements of an insanity defense
or a plea of guilty but mentally ill.’"° When a defendant is charged with a crime requiring
specific intent, such as murder, the defendant may introduce evidence on his/her mental
condition to prove that s/he did not have the requisite state of mind to commit the offense
charged.!*!_ The defendant may offer evidence to establish that s/he suffered from EED at the
time of the offense, which could reduce the offense from murder to manslaughter.
2 Ky. REV. STAT. ANN. § 504.150(1) (West 2011). Kentucky’s DOC operates a forensic psychiatric facility to
provide mental health care for prisoners in need of mental health treatment. Ky. REV. STAT. ANN. § 196.065(1)
(West 2011). If a sentenced inmate is “so mentally ill that he cannot be properly treated” at prison, the inmate will
be transferred to the psychiatric facility until his condition allows him to retum. Ky. Rev. STAT. ANN. §
202A .201(1)-(2) (West 2011).
125 Johnson v. Commonwealth, No. 2006-000548-MR, 2008 WL 4270731, at *6 (Ky. Sept. 18, 2008) (emphasis
added) (internal citation omitted).
126 See, e.g., Brown v. Commonwealth, 934 S.W.2d 242, 246 (Ky. 1996); Mitchell v. Commonwealth, 781 S.W.2d
510, 513-14 (Ky. 1990) (Leibson, J., dissenting) (declaring that the guilty but mentally ill verdict is “essentially
meaningless and inherently confusing . . . [and] is, for all practical purposes, empty of legal consequence . . . .”);
Brown, 934 S.W.2d at 250 (Furkin, J., concurring) (“the legislature has consistently failed to provide adequate
funding, [so] the reality is that treatment for those found GBMI is uncertain if not existent”).
7 Ky, REV. STAT. ANN. § 504.150(1) (West 2011). See also Ky, REV. STAT. ANN § 504.150(2) (West 2011)
(providing that such “[t]reatment shall be a condition of probation, shock probation, conditional discharge, parole, or
conditional release so long as the defendant requires treatment for his mental illness in the opinion of his treating
professional”).
128 Johnson, 2008 WL 4270731, at *6.
19" Td. at *5.
130 See generally Wellman v. Commonwealth, 694 S.W.2d 696, 697 (Ky. 1985) (distinguishing guilty but mentally
ill and the requirement of an initiating circumstance for EED); Coffey v. Messer, 945 S.W.2d 944, 945-46 (Ky.
1997) (discussing expert mental health testimony used to prove EED).
8! Ky, REV, STAT. ANN. § 507.020(1) (West 2011); McClellan v. Commonwealth, 715 S.W.2d 464, 468 (Ky.
1986).
‘2 Coffey, 945 S.W.2d at 946.
394
The Commonwealth is permitted to provide rebuttal and impeachment evidence and the defense
has the opportunity to impeach or rebut the Commonwealth’s evidence.’ At a jury trial, the
judge then instructs the jurors on the relevant statutes and the jury is left to determine whether
EED existed at the time of the offense.’
4. Sentencing Phase of Trial Proceedings
If the accused is found guilty of, a capital-eligible offense, the court will hold a sentencing
hearing to determine punishment.’*° Prior to the guilt phase of the trial or “at such other time as
the court may direct upon reasonable notice to the parties,” the defendant must provide written
notice to the court and Commonwealth if s/he intends to introduce mental condition testimony at
the sentencing phase of a criminal trial or the court may exclude such evidence.'*’ Any expert
testimony offered by the Commonwealth based upon the pretrial mental examination is
inadmissible unless the defendant introduces testimony on the issue.'°’ At the hearing,
additional evidence in extenuation, mitigation and aggravation of punishment is presented to the
trier of fact.’**
The defense may offer any relevant evidence, including documentary evidence and expert and
lay testimony, as mitigation during this phase of a capital trial.'°° Admissible evidence includes
(1) the defendant’s background history and character; (2) the defendant's mental condition
historically, currently, and at the time of the offense; and (3) any other evidence in support of
leniency or tending to establish or rebut the statutory aggravating or mitigating circumstances.“
Evidence of the defendant's mental condition is specifically relevant to the following statutory
mitigating factors: (1) whether the defendant was under the influence of extreme mental or
emotional disturbance; and (2) whether the capacity of the defendant to appreciate the
criminality of his/her conduct or to conform his/her conduct to the requirements of law was
133 Greene v. Commonwealth, 197 S.W.3d 76, 81 (Ky. 2006) (discussing when the burden of affirmatively proving
or disproving the elements of EED is on the defense or Commonwealth). If the defense produces evidence of the
presence of EED, but there is also contrary evidence such that a jury could find the absence of EED beyond a
pe netle doh then the issue of the presence or absence of EED is ajury question. Id.
at
5” Ky. REV. STAT. ANN. § 532.025(1) (West 2011).
186 Ky. R. CRIM. P. 7.24(3)(B)(i) (“If a defendant intends to introduce expert testimony relating to a mental disease
or defect or any other mental condition of the defendant bearing on the issue of his guilt or punishment, the
defendant shall, at least 20 days prior to trial or at such later time as the court may direct” file notice of such
intention.); Ky. REV. STAT. ANN. § 504.070(1) (West 2011).
857 Ky. R. Crim. P. 7.24(3)(B)(ii); see also Coffey v. Messer, 945 S.W.2d 944, 948 (Ky. 1997) (noting the
defendant “can preclude introduction of the Commonwealth's evidence by declining to introduce mental health
evidence in his own behalf”). However, once the defendant is found guilty of a felony, any statement made by
him/her during the pretrial mental examination pertaining to the issue of punishment may be disclosed to the
attorneys of both parties, unless the parties agreed otherwise. Ky. R. CRIM. P. 7.24(3)(B)(ii).
188 Ky. REV. STAT. ANN. § 532.025(2) (West 2011). The defendant may waive his right to jury sentencing and his
Tight to present mitigation evidence. Chapman v. Commonwealth, 265 S.W.3d 156, 177, 179 (Ky. 2007).
Ky. Rev. STAT. ANN. § 532.025(2)(b) (West 2011); Bowling v. Commonwealth, 981 S.W.2d 545, 550 (Ky.
1998) (“In the penalty phase, counsel introduced extensive evidence pertaining to Appellant's family history of
mental illness, his childhood, his marital history, and his deteriorating mental condition in the period leading up to
the murders.”).
MO" Ky. REV. STAT. ANN. § 532.025(2)(b) (West 2011).
395
substantially impaired.'“’ The Commonwealth may introduce evidence to rebut the defendant's
mental condition evidence. '”?
C. Competency for Post-Conviction Proceedings
1. Tolling of Post-Conviction Statute of Limitations and Competency to Proceed with
Post-Conviction Relief
In order to apply for state post-conviction relief, a death row inmate must file a motion for
collateral review, via RCr 11.42, within three years after the conviction becomes final.'*° Until
2011, it appeared that an RCr 11.42 petitioner could move to toll the three-year statute of
limitations generally imposed on petitioners seeking post-conviction relief, based on a challenge
to his/her competency during the three-year statute of limitations period.’ Under this
framework, the Kentucky Supreme Court would consider whether the alleged mental incapacity
(1) was unknown to the inmate during the three-year limitation period, or (2) could not have
been ascertained by the petitioner by the exercise of due diligence during the three-year statute of
limitations. The “critical inquiry remain[ed] whether the circumstances preventing a
petitioner from making a timely filing were both beyond the petitioner's control and unavoidable
despite due diligence.” “°
However, in January 2011, the Commonwealth's new “prison mailbox rule,” governing when the
statute of limitations is tolled by an incarcerated petitioner’s filing of a notice of appeal, came
into effect.'” The new section of Criminal Procedure Rule 12.04 states that “[i]f an inmate files
a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is
officially marked as having been deposited in the institution's internal mail system on or before
the last day for filing with sufficient First Class postage prepaid.” !“°
In April 2011, the Kentucky Supreme Court held, in Hallum v. Commonwealth, that where post-
conviction petitions were pending before the Court when the prison mailbox rule took effect, the
statutory “prison mailbox rule” applies retroactively to defendants' motions for post-conviction
Ml" Ky, REV. STAT. ANN. § 532.025(2)(b)(2), (2)(b)(7) (West 2011).
M2’ Ky. REV. STAT. ANN. § 532.025(1)(a) (West 2011).
“3 Ky. R. CRIM. P. 11.42(10) (limiting the permitted time of filing). Rule 11.42 allows prisoners in custody of the
Commonwealth of Kentucky to challenge the legality of their sentence by moving the court that imposed the
sentence to vacate, set aside, or correct it. See generally Ky. R. CRIM. P. 11.42.
“4 Ky. R. Crim. P. 11.42(10); Robertson v. Commonwealth, 177 S.W.3d 789, 791-92 (Ky. 2005) (adopting an
“equitable tolling remedy” in the context of a pro se prisoner mailing a Rule 11.42 petition), overruled by Hallum v.
Commonwealth, Nos. 2009-SC-000762-DG, 2010-SC-000049-DG, 2011 WL 1620593, at *2 (Ky. Apr. 21,
2011). See also Commonwealth v. Stacey, 177 S.W.3d 813, 816-17 (Ky. 2005) (standard for tolling the statute of
limitations due to incompetency).
M45 Stacey, 177 S.W.3d at 817.
“46 Td. at 817 (citing Dunlap, 250 F.3d at 1010); Robertson, 177 S.W.3d at 792; Commonwealth v. Cameal, 274
S.W.3d 420, 429 (Ky. 2008).
oe Ky. R. CRIM. P. 12.04(5), adopted by Ky. Sup. Cr. ORD. 2010-09 (effective Jan. 1, 2011).
Id.
396
relief that were timely placed in the prison mail system, but filed in the trial court after the
deadline expired.'*° The Court also held that, in light of the adoption and application of the
prison mailbox rule, the judicially-created “equitable tolling remedy” is no longer necessary in
the Commonwealth, and the Court expressly overruled the precedent creating such a remedy.!°°
In light of Hallum, therefore, it is unclear whether a petitioner who has waived or withdrew
his/her petition for post-conviction relief due to a mental disorder or disability that existed prior
to the expiration of the statute of limitations may seek to interrupt the running of the statute of
limitations based on the doctrine of “equitable tolling.”
To date, since the enactment of the three-year statute of limitations on Rule 11.42 motions in
1994, Kentucky courts have not tolled the statute of limitations for this reason in any case.”
2. Competency to Withdraw Petition for Post-Conviction Review
a. Withdrawal of State Proceedings
The Commonwealth of Kentucky has not enacted any rules to govern a third party’s challenge to
a condemned inmate’s competency to waive post-conviction review or withdraw his/her post-
conviction petition. Since the reinstatement of the death penalty, two death row inmates in
Kentucky have withdrawn or waived their appeals, including their post-conviction
proceedings.'** In one instance, the death row inmate was executed without ever filing for post-
conviction review; in the second, the inmate exhausted his state post-conviction appeals and
waived his remaining habeas corpus review in federal court.™*
4 Hallum v. Commonwealth, Nos. 2009-SC-000762-DG, 2010-SC-000049-DG, 2011 WL 1620593, at *2 (Ky.
Apr. 21, 2011).
iP Hallum, 2011 WL 1620593, at *3 (expressly overruling Robertson v. Commonwealth, 177 S.W.3d 789, 792
(Ky. 2005)) (“At the outset, we note that the application of the multi-factor equitable tolling test is arduous,
‘requir{ing] that the trial court engage in a more robust examination of the circumstances.’”) (citation omitted).
151 "See, e.g., Commonwealth v. Stacey, 177 S.W.3d 813, 817 (Ky. 2005) (permitting tolling due to incompetency
when petitioner is able to present evidence that his/her “alleged mental incapacity was either unknown to him[/her]
or could not have been ascertained by him[/her] by the exercise of due diligence during the three-year limitations
period of RCr 11.42(10)”); Commonwealth v. Cameal, 274 S.W.3d 420, 429 (Ky. 2008) (same); Stiltner v.
Commonwealth, No. 2007-CA-002048-MR, 2009 WL 102975, at *2 (Ky. Ct. App. Jan. 16, 2009) (same). The
statute of limitations for filing post-conviction claims under Criminal Procedure Rule 11.42 was not enacted until
October 1, 1994. Ky. R. Crim. P. 11.42(10).
182 See, e.g., Carneal, 274 S.W.3d at 429 (Ky. 2008) (non-capital case); Stacey, 177 S.W.3d at 817 (non-capital
case); Stiltner, 2009 WL 102975, at *2. Notably, several pro se petitioners seeking to toll the statute of limitations
in non-capital cases have been unable to proffer sufficient evidence to be granted an evidentiary hearing, and
consequently were not entitled to be appointed counsel. See, e.g., Griffith, 2006 WL 3040846 (pro se); Moore, 2008
WL 162853 (pro se); see also Burke v. Campbell County Fiscal Court, No.Civ.A.06-CV-191-DLB, 2006 WL
3627711 (E.D. Ky., Dec. 11, 2006) (pro se). In 1994, the Kentucky Supreme Court amended RCr 11.42 to require
the filing of an 11.42 motion within three years (1) after the judgment becomes final, (2) after the facts upon which a
previously undiscovered claim is predicated became known, or (3) after the “fundamental constitutional right
asserted” was created. Ky. R. CRIM. P. 11.42(10).
a Harper v. Parker, 177 F.3d 567, 537 (6th Cir. 1999); Chapman v. Commonwealth, 265 S.W.3d 156, 182-84
(Ky. 2007).
'5" See generally Chapman, 265 S.W.3d at 180; Harper, 177 F.3d at 569.
397
The only reported case addressing a death row petitioner’s competency to withdraw his/her
appeals in Kentucky courts indicates that death row inmates in Kentucky may waive or withdraw
their petition for post-conviction relief by requesting the court to waive any remaining appeals
and carry out his/her sentence.° An inmate's counsel may challenge the inmate’s competent
to withdraw and may file additional petitions for post-conviction relief on the inmate's behalf.!°°
Upon an inmate’s request for withdrawal or a competency challenge by counsel, the circuit court
may order the inmate to undergo an evaluation “to determine the Petitioner's competence to
direct his attorneys to cease legal actions on his behalf.”'°’ The court will then hold a hearing
where defense counsel, the Commonwealth, and the inmate each have the right to present
relevant evidence, including expert mental condition testimony, documentary evidence and
reports, and testimony from counsel or the inmate him/herself.!°® The circuit court will then
make findings of fact as to whether the petitioner has the
capacity to appreciate his[/her] position and make a rational choice with respect to
continuing or abandoning further litigation on his[/her] behalf[,] . . . is not
suffering from a mental disease, disorder, or defect which substantially affects
his[/her] capacity to forego further legal proceedings on his[/her] behalf[,] . . .
appreciates the legal consequences of [his/her] actions . . . [and] is capable of
making decisions concerning his own defense and legal representation. !°?
In the Franklin County case in which this issue arose, the circuit court found the inmate
competent, granted the inmate’s request, and entered an order prohibiting the counsel “from
filing, in the Petitioner's name, undesired appeals or other legal actions, direct or collateral,
attacking the Petitioner’s conviction and sentence.”!°° The inmate, Marco Allen Chapman, after
being found competent on November 17, 2008, was executed four days later, on November 21,
2008.
b. Withdrawal of Federal Proceedings
If the inmate moves to waive all further habeas corpus proceedings in federal court, the federal
district court must also determine the death row inmate’s competency.’ The district court will
hold a preliminary hearing to determine whether there is “reasonable cause to believe that the
defendant may presently be suffering from a mental disease or defect rendering him mentally
155 Order, Chapman v. Pub. Advocacy, No. 07-CI-01523 (Franklin Cir. Ct, Nov. 17, 2008). See generally Harper,
177 F.3d at 567.
156 See generally Order, Chapman v. Pub. Advocacy, No. 07-CI-01523, at *1 (Franklin Cir. Ct., Nov. 17, 2008)
(prohibiting DPA from filing “undesired appeals or other legal actions in the petitioner’s name”).
5 *
” ie at *2.
89 Td. at*3
160 Id.
161 Order, Chapman v. Pub. Advocacy, No. 07-CI-01523, at *3 (Franklin Cir. Ct., Nov. 17, 2008); Convicted
Murderer Marco Allen Chapman Executed, WAVE3.coM, http://www.wave3.com/Global/story .asp?S=9396274
(last visited July, 18, 2011).
162 Harper v. Parker, 177 F.3d 567, 569 (6th Cir. 1999).
398
incompetent to waive his right to further appeals.”'*? Defense counsel challenging competency
may present evidence supporting the inmate’s present incompetency, including mitigation
specialists, medical reports or expert testimony from psychiatrists, psychologists, or other mental
health professionals, medical and mental health records of the inmate’s immediate family, and
testimony from the inmate’s former legal representation.’™ Other evidence may include the
Kentucky State Penitentiary’s resident clinical psychologist or psychiatrist, the Warden of the
Penitentiary, the death row supervisor, and other institutional staff who may testify to their
impressions of the inmate.’ The inmate may be permitted to testify on his own behalf.‘
If the federal district court finds that there is reasonable cause to believe a death row inmate is
incompetent to waive habeas proceedings, the court must hold a full evidentiary hearing on the
inmate’s competency.’®” At this hearing, the court will determine whether the inmate “lacks the
capacity to appreciate his[/her] position and make a rational choice with respect to continuing or
abandoning further litigation or on the other hand[,] . . . is suffering from a mental disease,
disorder, or defect which may substantially affect his[/her] capacity in the premises.”’® If the
court determines that the petitioner is competent to withdraw the petition, then it will order the
withdrawal of post-conviction proceedings.
Neither the state nor federal courts have found a Kentucky death row inmate incompetent during
post-conviction or habeas corpus since Kentucky reenacted the death penalty in 1976.
3. “Next Friend” Petitions on Behalf of the Incompetent
There is no statutory provision or case law permitting a “next friend’’”’ to pursue post-
conviction relief on behalf of an incompetent death row inmate in the Commonwealth of
Kentucky. However, the KRS does permit a “next friend” to bring actions on behalf of “infants
and persons of unsound mind” in civil cases and trusts and estates. 171 Ty addition, KRS section
431.2135, which provides the procedures for challenging a condemned person’s sanity, expressly
allows a death row inmate’s attomey to file a petition challenging the inmate’s sanity to be
executed.'” Although not expressly permitting a “next friend” to file for post-conviction relief
163 Td. at 571. The Sixth Circuit, following U.S. Supreme Court precedent, recognized that the standard which
“determines a defendant’s competence to stand trial[] also applies in cases where the death row inmate seeks to
forego further appeals.” Id. (citing Rees v. Peyton, 384 U.S. 312, 314 (1966)).
't Td, at 569-70.
"6 Td. at 570.
16 Td. at 570-71.
167 Td. at570. Conversely, a determination that a full evidentiary hearing is unnecessary due to a lack of reasonable
cause to believe the death row inmate is incompetent will be reviewed for abuse of discretion. Id.
168 Rees v. Peyton, 384 U.S. 312, 314 (1966).
169 See Hamer v. Parker, 177 F.3d 567, 573 (6th Cir. 1999); Order, Chapman v. Pub. Advocacy, No. 07-CI-01523,
at *3 (Franklin Cir. Ct., Nov. 17, 2008).
1 A “next friend” is not a party to an action, but is an officer of the court, specially appearing to look after the
interests of the person for whose benefit they appear. See generally Paul F. Brown," Next Friends” as Enemies:
Third Party Petitions for Capital Defendants Wishing to Waive Appeals, 81J. CRIM. L. & CRIMINOLOGY 981 (1991).
Mm Ky. R. Cw. P. 17.03(1) (“Actions involving unmarried infants or persons of unsound mind shall be brought by
the party’s guardian or committee, but if there is none, or such guardian or committee is unwilling or unable to act, a
next friend may bring the action.”).
'? Ky. REV. STAT. ANN. § 431.2135(1) (West 2011).
399
per se, Kentucky has seemingly contemplated a petition by a third party on behalf of an
incompetent petitioner.
As a matter of federal law, however, a person may have standing as a “next friend” where the
“real party in interest is unable to litigate his[/her] own cause due to mental incapacity, lack of
access to court, or other similar disability.”1”* The U.S. Supreme Court has held that, in a capital
post-conviction proceeding, a “next friend” has standing to file a petition on behalf of a death
row inmate who wishes to waive his/her right to pursue post-conviction proceedings if the “next
friend” can demonstrate that (1) the inmate is incompetent and unable to make a rational decision
as to whether to seek post-conviction relief, and (2) that s/he is “truly dedicated to the [death-
sentenced inmate’ s] best interests and shares a significant relationship” with the inmate.‘
D. Sanity to be Executed
Kentucky prohibits the execution of an inmate who is insane.!” If the death row inmate does
not understand (1) the fact of his/her impending execution, and (2) why s/he is to be executed,
the inmate's execution date will be suspended until s/he is restored to sanity.'”°
Once an execution date is set, the condemned person, or his/her attorney, is permitted to file a
motion for a stay of execution due to the inmate’s insanity.’ The motion must be supported by
two affidavits and must be filed in the circuit court in the county where the inmate was convicted
or is currently incarcerated.'® The Kentucky Attomey General must file a response within the
time ordered by the circuit court.!” Once the court receives the motion, it must appoint at least
two mental health professionals to conduct an examination of the inmate.'®° The examiners are
required to submit written evaluations to the court within ten days of the examination.'*' Upon
receiving the report, the court will then hold a hearing to determine the sanity of the condemned
inmate.’”’ The inmate’s insanity must be shown by a preponderance of the evidence, and the
court’s decision may be appealed by the inmate or the Commonwealth.'®
3 Whitmore v. Arkansas, 495 U.S. 149, 165 (1990). In fact, in Harper, the Sixth Circuit noted that the Kentucky
Department of Public Advocacy (DPA) filed a petition noting the possibility of DPA filing a habeas corpus or next
friend petition on behalf of Harper. Harper, 177 F.3d at 569.
174 Whitmore, 495 U.S. at 163-64. See, e.g., Harper, 177 F.3d at 569; Rees v. Peyton, 384 U.S. 312, 314 (1966).
5 Ky. REV. STAT. ANN. § 431.240(2) (West 2011). In 1986, the U.S. Supreme Court held in Ford v. Wainwright
that the Eighth Amendment prohibited the execution of an insane offender who was sane when he committed the
offense. Ford v. Wainwright, 477 U.S. 399, 409-10 (1986).
"8 Ky, REV. STAT. ANN. §§ 431.213(2), 431.2135(4), 431.240(2) (West 2011).
“TT Ky. REV. STAT. ANN. § 431.2135(1) (West 2011).
1% Id. A “condemned person” is “a person for whom a specific day of execution is fixed by a mandate from the
Kentucky Supreme Court or a warrant signed by the Governor.” Ky. REV. STAT. ANN. § 431.213(1) (West 2011).
'® Ky. REV. STAT. ANN. § 431.2135(1) (West 2011).
180 Ky. REV. STAT. ANN. § 431.2135(2) (West 2011) (authorizing the court to appoint a mental health expert to aid
in the determination of the inmate’s sanity to be executed).
182. Id. See also Ky. REV. STAT. ANN. § 431.240(2) (West 2011) (requiring any hearings authorized under authority
of this section to be conduced in accordance with KRS Chapter 13B).
"8 Ky. REV. STAT. ANN. § 431.2135(3) (West 2011).
400
If the court finds the condemned person insane, the inmate will be transferred to the Kentucky
Correctional Psychiatric Center until s/he is restored to sanity.'* The treating psychiatrist is
required to report at least once monthly, to the court and the inmate’s counsel, on the inmate’s
progress and whether there is a substantial probability that s/he will become sane.’ Upon
receipt of a report that the inmate has become sane, the court must schedule a mental health
evaluation and hearing to determine the inmate’s sanity.’ The court’s decision may be
appealed to the Kentucky Supreme Court by either the inmate or the Commonwealth.’®”
't Ky, REV. STAT. ANN. § 431.2135(4) (West 2011). See also Ky. REV. STAT. ANN. § 431.240(2) (West 2011)
(“If the condemned person is insane, as defined in KRS 431.213 . . . on the day designated for the execution, the
execution shall be suspended until the condemned is restored to sanity .. . .”).
185 Ky. REV. STAT. ANN. § 431.2135(4) (West 2011) (requiring periodic review of the inmate's sanity). The
treating psychiatrist is also required to report immediately upon a psychiatric determination of sanity. Id.
i Ky. REV. STAT. ANN. § 431.2135(5) (West 2011).
Id.
401
Il, ANALYSIS - MENTAL RETARDATION
A. Recommendation #1
Jurisdictions should bar the execution of individuals who have mental retardation,
as that term is defined by the American Association on Intellectual and
Developmental Disabilities (AAIDD)."** Whether the definition is satisfied in a
particular case should be based upon a clinical judgment, not solely upon a
legislatively prescribed IQ measure, and judges and counsel should be trained to
apply the law fully and fairly. No 1Q maximum lower than 75 should be imposed in
this regard. Testing used in arriving at this judgment need not have been
performed prior to the crime.
The American Association on Intellectual and Developmental Disabilities (AAIDD) defines
mental retardation as a “disability characterized by significant limitations both in intellectual
functioning (reasoning, leaming, problem solving) and in adaptive behavior, which covers a
range of everyday social and practical skills. This disability originates before the age of 18.” 1“
Since 1990, the Commonwealth of Kentucky has prohibited the execution of offenders with
mental retardation.!°° The Commonwealth defines mental retardation as “significant subaverage
intellectual functioning existing concurrently with substantial deficits in adaptive behavior and
manifested during the developmental period” and is a condition which may exist concurrently
with mental illness or insanity.'*' The statute defines “significantly subaverage general
intellectual functioning” as an intelligence quotient (IQ) of seventy or below!
The AAIDD definition of mental retardation requires an individual to have an impairment in
general intellectual functioning that places him/her in the lowest category of the general
population’s IQ scores. IQ scores alone are not precise enough to identify the upper boundary of
mental retardation, and while experts generally agree that mental retardation includes everyone
with an IQ score of seventy or below, the definition also includes some individuals with IQ
scores in the low to mid-seventies.'°* The AAIDD explains that “since the standard error of
18 The American Association on Mental Retardation (AAMR) changed its name to the American Association on
Intellectual and Developmental Disabilities (AAIDD) in 2007. About Us, AM. ASS’N ON INTELLECTUAL &
DEVELOPMENTAL DISABILITIES, http://www.aaidd.org/content_2383.cfm?navID=2 (last visited July 20, 2011).
AAIDD, “with membership over 5,000 [] in the United States and in 55 countries worldwide” is “the oldest and
largest interdisciplinary organization of professionals and citizens concerned about intellectual and developmental
disabilities.” Id.
189 FAQ on Intellectual Disability, AM. ASS’'N ON INTELLECTUAL & DEVELOPMENTAL DISABILITIES,
http://www.aamr.org/content_104.cfm (last visited July 20, 2011).
190" §.B. 172, 1990 Reg. Sess. (Ky.), codified as Ky. REV. STAT. ANN. § 532.140 (West 2011) (effective July 13,
1990).
"8! Ky, REV. STAT. ANN. §§ 532.130(2), 504.060(7) (West 2011).
' Ky, REV. STAT. ANN. § 532.130(2) (West 2011). See also Ky. REV. STAT. ANN. § 504.020(2) (West 2011)
(clarifying that mental illness or mental retardation does not include an abnormality manifested only by “repeated
criminal or otherwise antisocial conduct”); Bowling v. Commonwealth, 163 S.W.3d 361, 371, 373 (Ky. 2005)
(explaining that Kentucky’s statutory scheme, creating an IQ ceiling of seventy for the exemption, was enacted in
1989 before the the U.S. Supreme Court barred the execution of the mentally retarded).
sil See James W. Ellis, Mental Retardation and the Death Penalty: A Guide to State Legislative Issues, 27 MENTAL
& PHYSICAL DISABILITY LAW Rep. 11-24 (2003). Ellis notes that “relevant professional organizations have long
recognized the importance of clinical judgment in assessing general intellectual functioning, and the
402
measurement on most IQ tests is approximately 5, the ceiling may go up to 75.”"* The AAIDD
specifically states that in calculating IQ, a five-point standard error of measurement must be
used. Thus, no state should impose an IQ maximum lower than seventy-five. '®°
The Commonwealth of Kentucky, by creating a bright-line maximum IQ of seventy, fails to
comport with the AAIDD definition of mental retardation.'*’ The Kentucky Supreme Court has
explicitly refused to permit application of a margin of error or standard deviation in calculating
an inmate's IQ, reasoning that the Kentucky General Assembly, in adopting the
Commonwealth's bar on the execution of offenders with mental retardation, deliberately rejected
a requirement to calculate IQ in consideration of the five-point standard error of measurement or
the Flynn Effect, a phenomenon that “as time passes and IQ test norms grow older, the mean IQ
inappropriateness and imprecision of arbitrarily assigning a single IQ score as the boundary of mental retardation.”
Id. at 20 n.22; see also Frequently Asked Questions on Intellectual Disability and the AAIDD Definition, AM. Ass’N
ON INTELLECTUAL & DEVELOPMENTAL DISABILITIES, http://www.aaidd.org/content_185.cfm (last visited July 20,
2011) (noting that “[aJn obtained IQ score must always be considered in light of its standard error of measurement.”
However, an IQ score is only one aspect in determining if a person has mental retardation, as “significant limitations
in adaptive behavior skills and evidence that the disability was present before age 18 are two additional criteria”);
Definition of Intellectual Disability, AM. ASS’N ON INTELLECTUAL & DEVELOPMENTAL DISABILITIES,
http://www.aaidd.org/content_100.cfm?navID=21 (last visited July 20, 2011) (noting that “an IQ test score of
around 70 or as high as 75 indicates a limitation in intellectual functioning”); FAQ on Intellectual Disability, AM.
ASS’N ON INTELLECTUAL & DEVELOPMENTAL DISABILITIES, http://www.aaidd.org/content_104.cfm (last visited July
20, 2011) (noting that mental retardation is not just determined by an IQ test but also tests that determine limitations
in adaptive behavior); AM. ASS’N ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION,
CLASSIFICATION, AND SYSTEMS OF SUPPORT 5 (Ruth Luckasson, ed., 9th ed. 1992) (“Mental retardation is
characterized by significantly subaverage intellectual capabilities or ‘low intelligence.’ If the IQ score is valid, this
will generally result in a score of approximately 70 to 75 or below. This upper boundary of IQs for use in
classification of mental retardation is flexible to reflect the statistical variance inherent in all intelligence tests and
the need for clinical judgment by a qualified psychological examiner.”); AM. ASS’N ON MENTAL DEFICIENCY,
CLASSIFICATION IN MENTAL RETARDATION 11 (Herbert J. Grossman ed., 8th ed. 1983) (“This upper limit is
intended as a guideline; it could be extended upward through IQ 75 or more, depending on the reliability of the
intelligence test used. This particularly applies in schools and similar settings if behavior is impaired and clinically
determined to be due to deficits in reasoning and judgment.”); AM. PsyCHIATRIC Ass’N, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 48 (text rev. 4th ed. 2000) (“[I]t is possible to diagnose Mental
Retardation in individuals with IQ scores between 71 and 75 if they have significant deficits in adaptive behavior.”).
1 Frequently Asked Questions on Intellectual Disability and the AAIDD Definition, AM. Ass’N ON INTELLECTUAL
& DEVELOPMENTAL DISABILITIES, http://www.aaidd.org/content_185.cfm?navID =62 (last visited July 20, 2011).
° Id.
196 In Atkins v. Virginia, the U.S. Supreme Court noted that “an IQ between 70 and 75” is “typically considered the
cutoff IQ score for the intellectual function prong of the mental retardation definition.” Atkins v. Virginia, 536 U.S.
304, 309 n.5 (2002).
197 Bowling v Commonwealth, 163 $.W.3d 361, 376 (Ky. 2005) (noting “[t]he General Assembly’s adoption of a
bright-line maximum IQ of 70 as the ceiling for mental retardation”). Furthermore, Kentucky courts typically do not
examine the second prong of the AAIDD definition of mental retardation— the existence of deficits in adaptive
behavior— until the defendant proves that s/he has an IQ of seventy or below. Parrish v. Commonwealth, 272
S.W.3d 161, 168 (Ky. 2008). The Kentucky Supreme Court has held that a death row inmate could not make a
prima facie showing that would warrant a discussion of the inmate’s deficits in adaptive behavior because his IQ
test scores were eighty-four and seventy-nine. Bowling, 163 S.W.3d at 384 (emphasis added). But see
Commonwealth v. Paisley, 201 S.W.3d 34, 36 (Ky. 1996) (discussing a trial court’s decision to order an evidentiary
hearing based only on deficits in adaptive behavior and expert testimony on the defendant's mental condition, even
though the defense did not have evidence of an IQ test ever having been conducted).
403
score tested by the same norm will increase approximately three points per decade.”'** The
Commonwealth also fails to distinguish between an actual IQ and an IQ test score, which “is
merely evidence of a person’s actual 1Q.” 1%
While it is in the court’s discretion to determine whether a capital defendant has mental
retardation, Kentucky trial courts frequently rule that, based on the prosecution’s proffered
testimony, a defendant's IQ score within the range of mental retardation is a result of
malingering or lack of motivation? For example, in Parrish v. Commonwealth, the defense
presented evidence of the defendant’s deficits in adaptive behavior and the defendant’s IQ test
score of sixty-eight, which was taken when the capital defendant was fifteen.” Despite the
evidence of an IQ score within the range considered “severely mentally retarded” by the KRS,
the trial court relied on the prosecution’s proffered explanation from a Kentucky Correctional
Psychiatric Center (KCPC) expert, who testified that the test score of sixty-eight had been “the
result of lack of motivation” and the defendant’s actual IQ was seventy-nine.”” As such,
18 Bowling, 163 S.W.3d at 374-75 (noting that “Atkins did not discuss margins of error’). See also John H.
Blume, et al., Symposium: An Empirical Look at Atkins v. Virginia and its Application in Capital Cases, 76 TENN. L.
Rev. 625 (2009). Factors, such as the standard error of measurement or the Flynn effect, “that introduces
unreliability into the [calculation] and render{] a defendant's test score erroneously high” must be included in a
determination of a death row inmate’s IQ. John H. Blume, et al., Of Atkins and Men: Deviations from Clinical
Definitions of Mental Retardation in Death Penalty Cases, 18 CORNELL J. L. & Pus. PoL’y 689, 695 (2009)
{hereinafter Blume II] (“Courts and advocates must . . . be aware that not all IQ tests are equal, and they must be
vigilant to ensure that the tests are scored properly,[] are current, and account for the standard statistical concepts of
measurement error, practice effect, and . . . the Flynn effect.”).
19 Bowling, 163 S.W.3d at 388 (Keller, J. dissenting) (“[I]t is not clear that the General Assembly intended an 1Q
test score of 70 or below to be a bright-line cutoff .... Kentucky's statutory scheme includes no limitations on the
types of evidence that a judge can consider in making a mental retardation determination, nor should it.”).
200 See White v. Commonwealth, 178 S.W.3d 470, 485-86 (Ky. 2005) (evidence of an IQ test score of sixty-eight
was due to malingering, according to mental health expert); Edmonds v. Commonwealth, No. 2007-SC-000350-MR,
2009 WL 4263142, at *11 (Ky. Nov. 25, 2009) (trial court rejected mental retardation based on evidence of
defendant's IQ test scores of seventy-one, seventy-three, and sixty-six at a pretrial competency hearing, where the
defense conceded that the scores presented evidence of malingering); Dean v. Commonwealth, 777 S.W.2d 900,
901-02 (Ky. 1989) (expert testified that defendant’s IQ was closer to eighty-one than previous scores of fifty-nine
and forty-eight and fifty-one because, the expert opined, the lower scores may be the result of malingering),
overruled on other grounds by Caudill v. Commonwealth, 120 S.W.3d 635 (Ky. 2003). See also Skaggs v.
Commonwealth, 330 S.W.3d 52, 54 (Ky. 2005) (upon post-conviction review, Kentucky Supreme Court held that IQ
scores of sixty-four, sixty-five, and seventy-three should have at least entitled the capital defendant to an evidentiary
hearing despite expert opinion that the defendant was malingering). Since Atkins, no Kentucky death row inmate
has been found mentally retarded and had his/her sentence reversed. Sentence Reversals in Intellectual Disability
Cases, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/sentence-reversals-intellectual-disability-cases
(last visited July 20, 2011). However, we are aware of at least one instance where a Kentucky trial court judge
eliminated the death penalty as a sentencing option for a capital defendant with an IQ between sixty-eight and
seventy-four, during pretrial proceedings for the retrial of Fred Grooms, who initially received a death penalty for
the murder of a female prison official, although this death sentence was later reversed on other grounds. Dr.
WILLIAM WILBANKS, TRUE HEROINES: POLICE WOMEN KILLED IN THE LINE OF DuTY THROUGHOUT THE UNITED
STATES 1916-1999 69 (Limited ed. 2000).
2 Parrish, 272 S.W.3d at 167-68.
202 Td. In Bowling v. Commonwealth, the Kentucky Supreme Court never acknowledged the factual ambiguity over
whether the inmate’s 1966 IQ test score was seventy-four or eighty-four, where the handwritten test result showed a
“7” superimposed over an “8.” Bowling, 163 S.W.3d at 384-85. Instead, the court interpreted the score to mean
eighty-four instead of seventy-four and ultimately concluded that the defense “presented no evidence that creates a
doubt as to whether [the defendant] is mentally retarded.” Bowling, 163 S.W.3d at 384 (emphasis added); see also
404
mentally retarded offenders may be sentenced to death when courts deny the existence of mental
retardation without an IQ test score of seventy or below and then discount or reject such IQ
scores when they are provided.
Additionally, in order to ensure that an individual is truly disabled and not simply a poor test-
taker or malingering, the AAIDD definition of mental retardation also includes adaptive behavior
limitations, which produce real-world disabling effects on a person’s life.”“* Under this
definition, adaptive behavior is “expressed in conceptual, social, and practical adaptive skills”
and focuses on broad categories of adaptive impairment, not service-related skills areas.24
While Kentucky’s definition of mental retardation requires that a defendant exhibit “deficits in
adaptive behavior,” Kentucky courts recognize the presence or absence of deficits in adaptive
behaviors without describing the evidentiary basis for this conclusion.“ In the
Commonwealth's seminal case on the limits of Kentucky’s bar on the execution of mentally
retarded offenders, Bowling v. Commonwealth, the Kentucky Supreme Court fails to describe
what constitutes deficits in adaptive behavior, noting that because the inmate failed to produce
evidence of an IQ test within the range of mental retardation, the Court “need not address
whether he meets the ‘substantial deficits in adaptive behavior’ criterion of the definition.”2" In
another opinion rejecting an inmate’s petition for post-conviction relief, the Kentucky Supreme
Court observed that the defendant proffered evidence of “substantial deficits in adaptive
behavior,” but the Court included no information about what evidence of these deficits, if any,
was presented in the case.”°” It thus remains unclear how a capital defendant in Kentucky may
demonstrate that s/he exhibits deficits in adaptive behavior.
The final prong of the AAIDD’s definition of mental retardation requires that mental retardation
manifest “during the developmental period,” which generally is defined as up to the age of
eighteen.”° This does not mean that an individual must have been IQ tested with scores in the
Bowling, 163 S.W.3d at 387 (Keller, J., dissenting) (illustrating the discrepancy by including the image of the test
score in his dissenting opinion).
203 Ellis, supra note 193, at 13; Blume II, supra note 198, at 695-96.
204 Frequently Asked Questions on Intellectual Disability and the AAIDD Definition, AM. ASS'N ON INTELLECTUAL
& DEVELOPMENTAL DISABILITIES, http://www.aaidd.org/content_185.cfm (last visited July 20, 2011).
205 Ky. REV. STAT. ANN. § 532.130(2) (West 2011). See, e.g., Bowling v Commonwealth, 163 S.W.3d 361, 388
(Ky. 2005); Parrish v. Commonwealth, 272 S.W.3d 161, 168 (Ky. 2008); Commonwealth v. Paisley, 201 S.W.3d
34, 36 (Ky. 2006).
206 Bowling, 163 S.W.3d at 384. The U.S. Court of Appeals for the Sixth Circuit did explain what deficits in
adaptive behavior were present in Bowling. Bowling v. Haeberline, 422 F.3d 434, 437-38 (6th Cir. 2005)
(describing the inmate’s deficits in adaptive behavior, including his academic record, which noted that he was
recommended for special education in first grade and failed ninth grade three times before dropping out of school,
and affidavits by the inmate’s mother, sister and son stating that “he was deficient in adaptive skills and unable to
function in the basic aspects of everyday life . . . had problems with money, difficulty in keeping jobs, and difficulty
maintaining personal relationships,” among other evidence).
207 Parrish, 272 S.W.3d at 168. See also Paisley, 201 S.W.3d at 36 (noting that even though the inmate's petition
described deficits in adaptive behavior that had convinced the trial court that there was sufficient “doubt as to
whether he is mentally retarded” to warrant an evidentiary hearing,” the Court failed to identify specific deficits in
adaptive behavior).
208 See Frequently Asked Questions on Intellectual Disability and the AAIDD Definition, AM. Ass’N ON
INTELLECTUAL & DEVELOPMENTAL DISABILITIES, http://www.aaidd.org/content_185.cfm (last visited July 20,
405
mentally retarded range during the developmental period, but that there must have been
manifestations of mental disability, which at an early age generally materialize as problems in
the area of adaptive functioning.” The age of onset is used to distinguish mental retardation
from other forms of mental disability that occur later in life, such as traumatic brain injury or
dementia.””°
Like the AAIDD definition of mental retardation, the Commonwealth requires a capital
defendant to prove that his/her mental retardation manifested during the “developmental
period.”"!!_ While the KRS does not explicitly define the “developmental period” as “prior to
age eighteen,” the Bowling Court noted that “mental retardation is a developmental disability that
becomes apparent before adulthood.”7!
It is unclear how Kentucky courts determine whether mental retardation manifested before the
age of eighteen if a defendant was not IQ-tested as a juvenile.’ In at least one instance, a
Kentucky trial court found a defendant with an IQ of sixty-one eligible for the death penalty
because the defendant’ s IQ test was conducted after the age of eighteen.”"* Requiring that an 1Q
test have been performed before adulthood places an often unattainable burden on a capital
offender's ability to prove mental retardation because such individuals rarely have “taken
standardized assessments of intelligence or adaptive behavior functioning prior to the age of
eighteen.”*"°
For the reasons set forth above, Kentucky’s definition of and application of the standard for
mental retardation does not comport with the AAIDD, or modem scientific understanding of
mental retardation. Therefore, the Commonwealth is not in compliance with Recommendation
#1.
The Kentucky Death Penalty Assessment Team recommends that the Commonwealth adopt
legislation defining mental retardation in conformance with the AAIDD definition, which should
(1) reject a bright-line IQ maximum for a determination of mental retardation, (2) calculate 1Q
scores by incorporating the five-point margin of error and the Flynn Effect, and (3) permit
presentation of other evidence of adaptive behavior deficits that occurred before the defendant
2011). Neither the AAIDD nor the APA require or specify that the evidence of onset must be proven by an IQ test
taken prior to age eighteen. Blume II, supra note 202, at 729.
209 Ellis, supra note 193 at 21, n.31.
210 Td. at 13.
211 FAQ on Intellectual Disability and the AAIDD Definition, AM. Ass’N ON INTELLECTUAL & DEVELOPMENTAL
DISABILITIES, http://www.aaidd.org/content_104.cfm?navID=22 (last visited July 20, 2011); Bowling v.
Commonwealth, 163 S.W.3d 361, 377 (Ky. 2005).
22 Ky. REV. STAT. ANN. § 532.130(2) (West 2011); Bowling, 163 S.W.3d at 377.
213 See generally Ky. REV. STAT. ANN. § 532.130(2) (West 2011). But see Commonwealth v. Paisley, 201 S.W.3d
34, 36 (Ky. 1996) (discussing a trial court’s decision to order an evidentiary hearing based only on deficits in
adaptive behavior and expert testimony on the defendant’s mental condition, even though the defense did not have
evidence of an IQ test ever having been conducted).
214 Commonwealth v. Giles, No. 06 CR 436-1 (Jefferson Cir. Ct, 2009). See also Jason Riley, Man With IQ of 61
May Face Death Penalty, CouriER-J. (Louisville, Ky.), Nov. 12, 2009, at A1.
215“ Blume II, supra note 202, at 729-30 (noting that such “tests are not performed for charitable reasons, for
instance where institutions don’t want to stigmatize a child, or financial reasons, if institutions do not want to pay
benefits or have responsibility”).
406
reached age eighteen, particularly where no IQ testing had been conducted during the
defendant's childhood, in order for the defendant to prove s/he is mentally retarded.
B. Recommendation #2
All actors in the criminal justice system, including police, court officers, defense
attorneys, prosecutors, judges, jailers, and prison authorities, should be trained to
recognize mental retardation in capital defendants and death-row inmates.
The Commonwealth of Kentucky requires training on recognizing mental retardation for some,
but not all, actors in the criminal justice system.
Kentucky State Police, city, county, and urban-county police officers, and deputy sheriffs are
required to complete a Basic Law Enforcement Training provided by a school certified or
recognized by the Kentucky Law Enforcement Council (KLEC).7 Each of the
Commonwealth's four accredited training academies, the Kentucky State Police Academy, the
Louisville Metro Police Academy, the Lexington Basic Training Academy, and the Kentucky
Department of Criminal Justice Training (DOCJT), requires varying training hours for officers to
become certified, including training devoted specifically to identifying and interacting with
persons with mental disabilities.7””
For example, to become certified by DOCJT, local law enforcement officers must complete 768
hours of basic training and pass a number of examinations within one year of appointment or
employment.”"® Law enforcement officers are also required to complete forty hours of in-service
training per year approved by KLEC.”" DOCJT offers specialized, forty-hour courses in
investigations, interviews, and interrogations, legal issues, as well as a course on “Law
Enforcement Response to Special Needs Persons,” which provides “information on special needs
populations in Kentucky, such as persons with mental and/or physical impairments.”””°
Specifically, this course covers the behaviors associated with special needs populations as well
as appropriate “responses to these citizens.” However, it is unclear whether training on
recognizing mental retardation in capital defendants death row inmates, or those suspected of
216 Ky, REV. STAT. ANN. §§ 15.380-15.404 (West 2011). Notably, sheriffs, certain deputy sheriffs identified in
KRS 70.045 and 70.263(3), coroners, constables, jailers, and the Commissioner of State Police are exempt from the
mandatory basic training and annual in-service training requirements. Id. KLEC, an independent government
agency, governs the certification and approval of all four training academies and curricula for the Commonwealth's
law enforcement. Ky. LAw ENFORCEMENT COUNCIL, Ky. DEP’T OF CRIMINAL JUSTICE TRAINING, 2011 TRAINING
SCHEDULE (2011), available at http://docjt.jus.state.ky .us/forms/ScheduleB ook/2011/Schedule%20Book_2011.pdf.
217 See, e.g., Ky. REV. STAT. ANN. § 15.404 (West 2011); Ky. DEp’T OF CRIMINAL JUSTICE TRAINING, 2011
TRAINING SCHEDULE 4, 75; 80 (2011), available at
hittp://www.hcky.org/hcso/Training/Schedule%20Book_2011.pdf; Telephone Interview by Paula Shapiro with
Lieutenant Kevin DeSpain, Commander, Basic Training Section, Louisville Metro. Police Acad., May 12, 2010 (on
file with author); Telephone Interview by Paula Shapiro with Sergeant David Ashford, Training Acad., Lexington-
Fayette Div. of Police, May 12, 2010 (on file with author).
218° Ky. DEp’T OF CRIMINAL JUSTICE TRAINING, 2011 TRAINING SCHEDULE 4, 42 (2011), available at
http://docjtjus.state.ky.us/forms/ScheduleBook/2011/Schedule%20Book_2011.pdf.
” Ky. REV. STAT. ANN. § 15.404(2)(a) (West 2011); 503 Ky. ADMIN. REGs. 1:120 (2010).
220 Ky. Dep’T OF CRIMINAL Justice TRAINING, 2011 TRAINING SCHEDULE 80 (2011), available at
http://docjtjus.state.ky.us/forms/ScheduleBook/2011/Schedule%20Book_2011.pdf.
407
capital crimes is a part of this course.’ Court security officers must also complete basic
training, *” but we were unable to determine whether specific training on mental retardation or
illness is included.
In addition to these training requirements, the Commonwealth has implemented Crisis
Intervention Teams, the training for which is a five-day, forty-hour curriculum based on best
practices for law enforcement intervention with persons who may have a mental illness,
substance abuse disorder, mental retardation, developmental disability, or dual diagnosis.””3
Correctional personnel also are trained to detect mental retardation in death row inmates.
Kentucky’s Department of Corrections (DOC) requires all Departmental personnel, including
correctional, probation, and parole officers, and the elected jailors, to participate in at least four
hours of mental health training during their first year of employment and at least one hour of
additional mental health training annually.” The curriculum offers instruction on various issues
that may arise for DOC personnel when dealing with persons with all types of mental illnesses or
disabilities, including mentally retarded individuals.”° Furthermore, Kentucky's “Jail Mental
Health Crisis Network” provides all local jails with (1) screening instruments for Kentucky jail
officers to identify risk and assess inmates’ needs; (2) a 24-hour, free telephonic behavioral
health triage system staffed by mental health professionals who can provide telephonic
assessments of correctional inmates’ potential mental health problems, suicide risk, substance
abuse and mental retardation; and (3) “jail management protocols that standardize safe and
humane responses” to inmates.””° This program also includes follow-up services by mental
health counselors who may conduct further assessment onsite.”””
Furthermore, the Kentucky Department of Public Advocacy (DPA) provides training on mental
*21 Td. at 80. The instruction for this course is offered by the Kentucky Department for Behavioral Health,
Developmental and Intellectual Disabilities. Id.
* Ky. REV. STAT. ANN, §§ 15.3971(3), 15.3975(1)-(2) (West 2011).
3 Ky, Rev. STAT. ANN. § 210.365 (West 2011) (effective July 13, 2004). As of April 1, 2010, about 530
Kentucky law enforcement officers successfully completed CIT training. Melinda Charles, Fleming Officers
Complete CIT Training, LEDGER INDEP. (Maysville, Ky.), Apr. 1, 2010, _http:/Avww.maysville-
online.com/news/local/article_b01749fc-3de7-11df-abdc-001cc4c002e0.html (last visited July 20, 2011). However,
not every Kentucky law enforcement agency retains CIT-trained officers and the goal of CIT is not suited for
instances in which a mentally retarded or mentally ill person is suspected of committing a capital crime. Interview
with Lt. Kevin DeSpain, supra note 217.
224 501 Ky. ADMIN. REGS. 3:140 § 8 (2010); Ky. REV. STAT. ANN. § 197.020 (West 2011), amended by 2011 Ky.
Acts Ch. 2, sec. 32 (H.B. 463). In practice, the annual trainings are typically longer than required, lasting at least a
half-day. Telephone Interview by Paula Shapiro with Chris Kleymeyer, Director, Ky. Div. of Corr. Training, Ky.
Dep’t of Corr., Apr. 30, 2010 (on file with author).
225” Interview with Chris Kleymeyer, supra note 224.
228 See Ky. REV. STAT. ANN. § 210.365(12)-(19) (effective July 2005), 23A.2065 (West 2011) (establishing an
additional fee on criminal cases in Kentucky district courts in order to fund the triage system); Kentucky Jail Mental
Health Crisis Network, Ky. Dgp’T FOR BEHAVIORAL HEALTH, DEV. & INTELLECTUAL DISABILITIES,
http://www.mhmr.ky.gov/mhsas/jail% 20triage.asp (last visited July 20, 2011); Email to Paula Shapiro from Connie
Mulligan, Ky. Jail Mental Health Crisis Network Director & Regional Director, Intake and Emergency Services,
Bluegrass MH-MR Bad., Inc., May 24, 2010 (on file with author).
27 Email from Connie Mulligan, supra note 226. The program has been implemented in eighty-one out of the
eighty-four jails in the Commonwealth, and at least 70,000 calls have been placed to its hotline. Id.
408
retardation to Commonwealth defense attomneys.”° This training, which includes Kentucky
statutory and case law history on mental retardation, best practices, and how to effectively
communicate with capital defendants and death row inmates with mental retardation and other
mental illnesses, disorders, or diseases, is required by DPA for new public defenders and is
optional for current DPA attomeys."“” DPA also provides manuals on mental health and expert
witnesses via its website, and the Kentucky Bar Association offers continuing legal education
programs to all Commonwealth criminal defense attorneys.” For more information on specific
raining, provided to the Commonwealth's capital defense attorneys, see Recommendation #3
elow.
While the Kentucky Administrative Office of the Courts offers a three-day training program for
recently-appointed circuit and district judges in the Commonwealth,” and other educational or
training opportunities are offered by the Kentucky District Judges College and the Kentucky
Circuit Judges College,”** we were unable to determine the extent, if any, to which these
trainings deal with issues related to recognizing mental retardation or mental illness in capital
defendants or death row inmates. Similarly, while the Commonwealth requires annual basic
training courses for new Commonwealth Attomeys, assistant Commonwealth Attomeys, and
their staff, as well as continuing legal education seminars for those already practicing at least
once every two years,” we were unable to determine whether and to what extent these trainings
address the issues described in Recommendation #2.
Because training on recognizing mental retardation in capital defendants and death row inmates
is required of some but not all actors within the criminal justice system, Kentucky in is partial
compliance with Recommendation #2.
C. Recommendation #3
The jurisdiction should have in place policies that ensure that persons who may
have mental retardation are represented by attorneys who fully appreciate the
significance of their client's mental limitations. These attorneys should have
training sufficient to assist them in recognizing mental retardation in their clients
and understanding its possible impact on their clients’ ability to assist with their
defense, on the validity of their “confessions” (where applicable) and on their
228 Telephone Interview by Paula Shapiro with Glenn McClister, Staff Attorney, Education and Strategic Planning
Branch, Ky. Dep’t of Pub. Advocacy, Feb. 24, 2010 (on file with author).
229 Td. Glenn McClister, KPDC’s Recent Past and Hopeful Future, Ky. DEp’T oF PuB. ADVOCACY, available at
http://dpa.ky.gov/NR/rdonlyres/3B 98E4C8-D FBA -4552-885A -40272FE5A ECF/0/KPDC200verview.pdf.
230” Defender Resources, Ky. DEP’T OF PuB. ADVOCACY, http://dpa.ky.gov/drhtm (last visited July 20, 2011); CLE
Programs, Ky. BAR Ass’N, http://www.kybar.org/434 (last visited July 20, 2011).
231 See infra notes 236-248 and accompanying text.
282 44 Judges Participate in Orientation Program for New Kentucky Judges, Ky. Cr. oF JUSTICE (Mar. 17, 2010),
http://courts.ky.gov/pressreleases/03172010JB 1.htm (last visited July 20, 2011). The new circuit and district judges
also had the option of earning up to twenty CLE credits. Id.
233 Campbell County Judge Karen A. Thomas Elected President of Kentucky District Judges Association, Ky. Cr.
OF JUSTICE, Nov. 29, 2009, http://courts.ky.gov/pressreleases/11252009JB2.htm (last visited July 20, 2011).
2S" Ky. REV. STAT. ANN. § 15.718 (West 2011); Prosecutors Advisory Council, OFFICE OF Ky. ATT’Y GEN.,
http://ag.ky.gov/criminal/pac (last visited July 20, 2011) (noting that the Prosecutors Advisory Council co-sponsors
an annual Kentucky Prosecutors Conference, attended by over 600 prosecutors and law enforcement officials and
sponsors the Kentucky Prosecutors Institute, a week-long trial skills course for new prosecutors).
409
eligibility for capital punishment. These attorneys should also have sufficient funds
and resources (including access to appropriate experts, social workers and
investigators) to determine accurately and prove the mental capacities and adaptive
skills deficiencies of a defendant who counsel believes may have mental retardation.
The Commonwealth of Kentucky offers, but does not require, special training on recognizing
mental retardation and understanding its impact for attorneys who represent capital defendants.
Kentucky does, however, provide resources to assist in the defense of an indigent capital
defendant who counsel believes may have mental retardation or mental illness.
Training of Capital Defense Attorneys on Mental Retardation
DPA represents indigent capital defendants from 119 of 120 Commonwealth counties, while a
capital defendant in Jefferson County will be assigned counsel from the Louisville Metro Public
Defender’ s Office (Metro Defender) Capital Trial Branch.”
DPA provides training to its attorneys, as well as other criminal defense attorneys practicing in
the Commonwealth, on recognizing mental retardation in their clients and understanding its full
impact on a capital case.%° DPA also provides trainings for other actors within the criminal
justice system, including social workers and investigators.”*’ However, there is no mechanism
to ensure that all members of the capital defense team participate in these trainings.
DPA requires new public advocates to participate in a three-week program, called the Kentucky
Public Defender College (KPDC), which includes training to assist attorneys in recognizing
mental retardation.2* DPA also has offered related training seminars, available to all criminal
defense attorneys, including seminars focusing on attorney/investigator case preparation and
multi-day seminars on litigating mental illness issues in capital cases.° DPA also makes
available on its website a 215-page “Mental Health and Experts Manual” for criminal defense
attorneys, with instruction on various mental health issues including competency to stand trial,
criminal responsibility, mental illness and mental retardation, and other topics relevant to
defending a person with a mental illness or disability.“° Specific chapters include “Breaking
Through: Communicating and Collaborating with the Mentally Ill Defendant,” “Working
285 Interview by Sarah Turberville and Paula Shapiro with the Louisville Metro Public Defender’s Office (Metro
Defender), June 14, 2010 (on file with author).
236 Education Calendar 2009, Ky. DEP’T OF Pus. ADvocacy, http://dpa.ky.gov/ed/ecal.htm (last visited Apr. 20,
a
238 Education Overview, Ky. DEP’T oF Pus. ADvocacy, http://dpaky.gov/ed/ (last visited Apr. 20, 2010);
Interview with Glenn McClister, supra note 228.
239 See, e.g, Education Calendar 2009, Ky. DeEp’T OF Pus. Apvocacy,
http://web.archive.org/web/20100429022828/http:/dpa.ky.gov/ed/ecal.htm (last visited Apr. 20, 2010); NAT’L
COALITION TO ABOLISH THE DEATH PENALTY, Capital Defense Legal Training Workshop: Litigating Mental Illness
Issues or Presenting Mental Illness in the Sentencing Phase, NCADP 2010 ANNUAL CONFERENCE — BUILDING
BRIDGES TO WIDER AUDIENCES, Louisville, Ky. (Jan. 14-17, 2010) (co-presented by the Kentucky Department of
Public Education), available at http://www.ncadp.org/events.cfm?event=1003&pg=46.
240 Ky. DEP’T OF PuB. ADVOCACY, MENTAL HEALTH AND EXPERTS MANUAL (8th ed. 2005), available at
http://dpa.ky.gov/dpapub.htm.
410
Effectively with Capital Defendants: Identifying and Managing Barriers to Communication,” and
“Top Ten Tips for Interviewing Emotionally Disturbed People.””"
In the event that DPA’s Capital Trial Branch cannot represent an indigent capital defendant due
to a conflict of interest, DPA assigns alternate counsel from its non-capital trial division or from
“a list of private attorneys who are willing and qualified to enter into trial and post trial level
capital conflicts.”“* DPA requires these private attomeys to have “[clompleted a
comprehensive training program, approved by DPA, in the defense of capital cases,” which
includes training on the presentation and rebuttal of mental health evidence and the “unique”
issues relating to representation of mentally retarded defendants charged with a capital
offense.”“? Additionally, private counsel appointed in a capital case must demonstrate “skill in
the investigation, preparation, and presentation bearing on mental status” and mitigation
evidence.”
In Jefferson County, Metro Defender capital trial attormeys undergo similar training to that of
DPA capital defense attorneys on recognizing mental retardation in capital clients. However,
conflict attorneys appointed to capital cases in Jefferson County may, but are not required by the
Metro Defender, to undergo such training.”
While Kentucky law does not guarantee the appointment of counsel in post-conviction
proceedings, “° in practice, DPA represents all death row inmates in post-conviction proceedings
and provides these inmates with similarly-trained counsel for post-conviction review
immediately after an initial opinion on direct appeal is issued.”4”
Although DPA and the Metro Defender strive to appoint conflict counsel trained to recognize
mental retardation in their clients and understand its possible impact on their clients’ defense,
there is no legal requirement that any Commonwealth defense attorney complete such training
before representing a capital defendant or death row inmate.””°
241 Td. at 20-1, 28-1, 30-1.
22 Ky. DEp’T OF PUB. ADVOCACY, POLICIES AND PROCEDURES Qualification and Compensation of Counsel in
Contract Capital Cases § 8.04(C) (revised Jan. 1, 2008) (on file with author) [hereinafter DPA PoLiciEs].
243 DPA POLICIES, supra note 242, at § 8.04(C)(3)(j), (1). Furthermore, DPA requires the private attorneys to attend
and fully participate in selected DPA training events such as the Death Penalty Trial Practice Institute as well as
other non-DPA trainings in order to become eligible for appointment in a capital case. Id. at 8.04(D)(3).
244 DPA POLICIES, supra note 242, at § 8.04(C)(1)(£), (g).
245 Interview with Metro Defender, supra note 235. In the event of a conflict of interest, per its “assigned counsel
panel plan,” the Metro Defender will select private defense attomeys to represent a capital defendant. Id. Each
conflict attorney is required to sign a contract with the Metro Defender, but the contract is silent with respect to any
training requirements. Id.
246 Kentucky law requires an appointment of counsel only when the petitioner “raises a material issue of fact that
cannot be determined on the face of the record.” Ky. R. Crim. P. 11.42(5); see generally Fraser v. Commonwealth,
59 S.W.3d 448, 451-53 (Ky. 2001).
247 Telephone Interview by Sarah Turberville with Marguerite Thomas, Post Conviction Branch Manager, Ky.
Dep't of Pub. Advocacy, Mar. 18, 2010 (on file with author). Typically, DPA represents all death row post-
conviction petitioners. Interview by Sarah Turberville and Paula Shapiro with the Ky. Dep't of Pub. Advocacy
(DPA), June 14, 2010 (on file with author).
248 Interview with DPA, supra note 247. The Commonwealth of Kentucky has not adopted an external mechanism
for enforcement of the American Bar Association Revised Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases, which would include requirements to ensure that capital defendants are
411
Funding and Resources to Detect and Prove Mental Retardation in Capital Defendants
Through KRS 31.185, capital defense attorneys may be provided with funding and resources to
accurately determine and prove the mental capacity and adaptive skills bearing on their clients’
culpability and sentencing.” The KRS provides that an indigent capital defendant in Kentucky
is entitled “to be provided with the necessary services and facilities of representation including
investigation and other preparation”? and “[t]o use the same state facilities for the evaluation of
evidence as are available to the attorney representing the Commonwealth.”*!
However, a defendant has no right to hire an expert of his/her own choosing at state expense.”°
Instead, s/he must first demonstrate that use of state facilities is impractical,” that private expert
assistance is “reasonably necessary,”*™* and must describe the specific information the expert
would be able to provide.“® Kentucky trial courts will grant to defense counsel funds to
accurately determine and prove the mental capacities and adaptive skills deficiencies of a capital
defendant.” Trial courts may place an initial “cap” on funding for expert services. However,
the court may grant additional funding when defense counsel demonstrates its necessity.’ In
Jefferson County, in some instances, courts will not place a cap on funding and will instead
permit defense counsel to use “reasonable” funds for the provision of expert services.*°
In addition to mental health experts, effective representation requires the assistance of both
investigators and social workers. DPA and the Metro Defender use funds from their general
represented by attomeys whose training and qualifications comply with this Recommendation. See ABA, ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 8.1, 31
HorstrA L. REV. 913, 984-85 (2003).
4 Ky. REV. STAT. ANN. § 31.185(1) (West 2011); Binion v. Commonwealth, 891 S.W.2d 383, 385 (Ky. 1995).
* Ky, REV. STAT. ANN. § 31.110(1)(b) (West 2011). See also Ky. REV. STAT. ANN. § 31.110(2)(a)-(c) (West
2011) (“[a] needy person is entitled to . . . be counseled and defended at all stages of the matter . . . to be represented
in any appeal . . . to be represented in any other post-conviction” proceeding); Young v. Commonwealth, 585
S.W.2d 378, 379 (Ky. 1979); Hicks v. Commonwealth, 670 S.W.2d 837, 838 (Ky. 1984).
3) Ky, REV. STAT. ANN. § 31.185(1) (West 2011).
252 Crawford v. Commonwealth, 824 S.W.2d 847, 850 (Ky. 1992) (noting that Ake v. Oklahoma, 470 U.S. 68
(1985) did not support the proposition that an indigent defendant had the right to choose a psychiatrist or receive
funds to hire one of his choosing); Commonwealth v. Paisley, 201 S.W.3d 34, 35-36 (2006) (holding that “it was an
abuse of discretion for [the trial court] to order the Finance and Administration Cabinet to pay up to $5,000 fora
private psychologist without the requisite showing that the use of state facilities was somehow impractical”).
3 Ky, REV. STAT. ANN. § 31.185(1) (West 2011).
254 Young, 585 S.W.2d at 379; Hicks, 670 S.W.2d at 838.
ah Benjamin v. Commonwealth, 266 S.W.3d 775, 789 (Ky. 2008). A court need not authorize funding for expert
assistance if the defendant “offers little more than an undeveloped assertion that the requested assistance would be
beneficial.” Simmons v. Commonwealth, 746 S.W.2d 393, 395 (Ky. 1988). See also Young, 585 S.W.2d at 379;
Hicks, 670 S.W.2d at 838 (“[T]rial courts are not required to provide funds to defense experts for fishing
expeditions.”).
8° Ky. REV. STAT. ANN. § 31.185(5) (West 2011); Interview with DPA, supra note 247. Under KRS 31.185(5),
each Commonwealth county provides a per capita amount of money into a special fund for indigent defense expert
and investigative resources. Ky. REV. STAT. ANN. § 31.185(5) (West 2011). However, when this fund is depleted,
the Commonwealth of Kentucky must pay any additional funding requirements granted by the court. Id.
°57 Interview with DPA, supra note 247; Interview with Metro Defender, supra note 235.
258 Interview with Metro Defender, supra note 235.
412
revenue budget to hire investigators and social workers as staff.”° Until 2010, DPA employed a
single investigator in its entire Capital Trial Branch (it now employs two), which handles
approximately twelve to sixteen capital cases each year. The Metro Defender employs one
investigator for its entire Capital Trial Division, which handles approximately twenty-five capital
cases each year.’ To our knowledge, courts have granted additional KRS 31.185 funding to
DPA and the Metro Defender to support investigative and mitigation assistance in some capital
cases, although it has been less successful in obtaining other ancillary assistance through KRS
31.185.7 We were unable to determine if trial courts will grant funding for social workers and
investigative assistance in capital cases handled by appointed private counsel.
During post-conviction proceedings, an indigent death row petitioner may be entitled “to state
funds for the procurement of expert testimony upon a showing that such witness is reasonably
necessary for a full presentation of the petitioner's case.”“°* However, Kentucky post-conviction
courts do not typically authorize any funding for mental health experts to accurately determine
and prove the mental capacities and adaptive skills deficiencies in potentially mentally retarded
death row inmates.”
Conclusion
In summary, not all defense attorneys assigned to represent capital defendants are required to
undergo training on recognizing mental retardation and Kentucky does not ensure that all
defense attorneys have sufficient resources to determine accurately and prove the mental
capacities of capital defendants and death row inmates at trial and during post-conviction
proceedings. Therefore, the Commonwealth is in partial compliance with Recommendation #3.
259 Interview with DPA, supra note 247; Interview with Metro Defender, supra note 235.
260 Interview with DPA, supra note 247. See also Chapter Six on Defense Services for a detailed discussion of
investigative, expert, and other ancillary services available to capital defendants and death row inmates.
261 Interview with DPA, supra note 247; Interview with Metro Defender, supra note 235. Both entities have stated
that when necessary, investigators and/or social workers are borrowed from their other divisions in order to keep up
with demand. Interview with DPA, supra note 247; Interview with Metro Defender, supra note 235.
262 Email to Sarah Turberville & Paula Shapiro from Tom Griffiths, Capital Trial Branch Manager, Ky. Dep’t of
Pub. Advocacy, Sept. 10, 2011 (on file with author) (describing the difficulty in obtaining KRS 31.185 funds for
mitigation experts in capital cases); Interview with Metro Defender, supra note 235.
263 Mills v. Messer, 268 S.W.3d 366, 367 (Ky. 2008); Hodge v. Coleman, 244 S.W.3d 102, 108 (Ky. 2008),
overruling Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005) (“has determined that the [] petition sets forth
allegations sufficient to necessitate an evidentiary hearing”).
264 “See Hodge, 244 S.W.3d at 108; Mills, 268 S.W.3d at 367; Johnson v. Commonwealth, No. 2006-SC-000548-
MR, 2008 WL 4270731, at *7 (Ky. Sept. 18, 2008) (“an indigent post-conviction prisoner may not receive public
funds under KRS 31.185 unless a court of competent jurisdiction has determined that the post-conviction petition
sets forth allegations that necessitate an evidentiary hearing”); Interview with DPA, supra note 247; Interview with
Metro Defender, supra note 235. The same judge that presided over the original trial presides over the post-
conviction proceeding. Ky. R. CRIM. P. 11.42(1). Kentucky trial courts have discretion to determine whether a post-
conviction “petition sets forth allegations sufficient to necessitate an evidentiary hearing,” which requires a showing
that the desired defense expert’s testimony may either change the trial verdict or the reliability of the trial verdict.
Hodge, 244 S.W.3d at 108; Mills, 268 S.W.3d at 367; Foley v. Commonwealth, No. 2008-SC-000909-TG, 2010 WL
1005873, at *3 (Ky. Mar. 18, 2010). If an indigent petitioner seeks funding for out-of-state expert witnesses, the
court will examine the petitioner’s proposed list of witnesses and will grant funds for witnesses that the court
determines to be reasonably necessary to fully present the petitioner's post-conviction claims. Hodge, 244 S.W.3d
at 108-09.
413
D. Recommendation #4
For cases commencing after the United States Supreme C ourt’s decision in Atkins v.
Virginia” or the State’s ban on the execution of the mentally retarded (the earlier
of the two), the determination of whether a defendant has mental retardation should
occur as early as possible in criminal proceedings, preferably prior to the
guilt/innocence phase of a trial and certainly before the penalty stage of a trial.
In 1990, the Kentucky General (assembly passed legislation to prohibit the execution of
offenders with mental retardation.” The statute requires a defendant whose trial commences on
or after July 13, 1990 to raise the issue of his/her mental retardation as a bar to execution thirty
ae VS ror to trial and for the court to make a determination on the issue at least ten days before
The KRS also permits a capital defendant to challenge, on direct appeal, the trial court's
Seen that, the offender does not have mental retardation and was therefore eligible for
the death penalty.®* Death row inmates tried and sentenced prior to July 13, 1990 may seek to
raise mental retardation as bar to execution during post-conviction proceedings.”°
Based on the above information, the Commonwealth is in compliance with Recommendation #.
However, we note that Kentucky's procedural rules could permit a death row inmate who is
mentally retarded to be executed for failure to raise his/her mental retardation as a bar to
execution at the proper time.””” The Kentucky Supreme Court has held that a capital d defendant
is statutorily “afforded [] the opportunity to assert his[/her] mental retardation claim .. . [but if
s/Jhe chose not to assert the claim at trial [s/he has] thereby waived it’?” and cannot raise mental
retardation as a bar to execution in any subsequent proceeding.””
8 536 U.S. 304 (2002).
266 SB. 172, 1990 Gen. Assemb., Reg. Sess. (Ky. 1990), codified as Ky. REV. STAT. ANN. §§ 532.130-.140 (West
2011) (effective July 13, 1990).
” Ky. REV. STAT. ANN. § 532.135(1)-(2) (West 2011).
268 Ky. REV. STAT. ANN. § 532.135 (West 2011); Skaggs v. Commonwealth, 330 $.W.3d 52, 55 (Ky. 2005);
Bowling v. Commonwealth, 163 S.W.3d 361, 377 (Ky. 2005).
269 Bowling, 163 S.W.3d at 371. In 2005, the Kentucky Supreme Court held that the bar on the execution of
mentally retarded offenders recognized in Atkins v. Virginia applies only to offenders tried prior to July 13, 1990
(the effective date of Kentucky’s mental retardation exemption statutes). Id.
2 Bowling, 163 S.W.3d at 385-86 (Keller, J., dissenting) (“The majority opinion [] claims that because Kentucky
provides a statutory mechanism for raising the issue of mental retardation before trial, and Appellant failed to utilize
that mechanism even though it had been in effect all of five months before his trial, Appellant has waived any
Eighth Amendment mental retardation claim .... The mere fact that Kentucky’s statutes provided (and still
provide) a pretrial means to challenge the applicability of the death penalty when the defendant may be mentally
retarded is not enough to protect the interest recognized in Atkins .... Ultimately, while pretrial measures are
laudable, they alone are not sufficient to protect the substantive right implicit in the Eighth Amendment and
recognized in Atkins.”).
271 Bowling v. Commonwealth, 224 S.W.3d 577, 579 (Ky. 2006).
22 Bowling, 163 S.W.3d at 372. See also Bowling, 224 $.W.3d at 578 (“Because [the death row inmate] was tried
after the effective date of the exemption statutes and had not raised the mental retardation issue at trial, he was held
to have procedurally defaulted the issue”); Parrish v. Commonwealth, 272 S.W.3d 161, 167 (Ky. 2008) (stating that
an inmate's claim of mental retardation to bar execution is not an appropriate claim for a Rule 11.42 post-conviction
proceeding).
414
For this reason, the Kentucky Death Penalty Assessment Team recommends that Kentucky adopt
a tule or law that provides a mechanism for a death row inmate who failed to adequately raise
mental retardation as a bar to execution before trial, to file an initial or successive petition for
post-conviction review permitting the court to review the inmate's claim on the merits.
E. Recommendation #5
Where the defense has presented a substantial showing that the defendant may have
mental retardation, the burden of disproving mental retardation should be placed
on the prosecution, If, instead, the burden of proof is placed on the defense, its
burden should be limited to proof by a preponderance of the evidence.
The Commonwealth requires a capital defendant whose trial commenced on or after July 13,
1990 to show, by a preponderance of the evidence, that s/he was mentally retarded at the time of
the offense.” During post-conviction review, a defendant convicted prior to the 1990
enactment of Kentucky’s bar on the execution of mentally retarded offenders, must also prove,
by a preponderance of the evidence, that s/he was mentally retarded at the time of the offense.’”
The Commonwealth, therefore, is in compliance with Recommendation #5.
F. Recommendation #6
During police investigations and interrogations, special steps should be taken to
ensure that the Miranda rights of a mentally retarded person are sufficiently
protected and that false, coerced, or garbled confessions are not obtained or used.
The Commonwealth of Kentucky has implemented some legal mechanisms and adopted some
law enforcement practices to help ensure that the Miranda rights of mentally retarded offenders
are sufficiently protected during investigations and interrogations.’”°
Legal Mechanisms
Kentucky trial courts will permit the waiver of a capital defendant’s Fifth Amendment
constitutional right to remain silent, and permit the resulting confession to be introduced at trial,
when the court determines that defendant's statement was made “voluntarily, knowingly and
intelligently.”’ The voluntariness of a confession will be based on the totality of the
273 Bowling, 163 S.W.3d at 382.
24 See Bowling v. Commonwealth, 163 $.W.3d 361, 370-71, 382 (Ky.2005).
275 Miranda v. Arizona safeguards the right against compelled self-incrimination by conditioning the admissibility
of statements on prior warnings, once a suspect is in custody and under interrogation, that the accused has a right to
remain silent, that any statement he makes may be used against him, and that he has the right to an attomey. See
Miranda v. Arizona, 384 U.S. 436, 444 (1966). In all capital cases, as in all criminal cases, a “confession cannot be
used if it is involuntary.” United States v. Macklin, 900 F.2d 948, 951 (6th Cir. 1990), cert. denied, 498 U.S. 840,
(1990). See also Colorado v. Connelly, 479 U.S. 157, 164 (1986); Blackbum v. Alabama, 361 U.S. 199, 205-06
(1960); Fikes v. Alabama, 352 U.S. 191, 196 (1957).
276 Mills v. Commonwealth, 996 $.W.2d 473, 481-82 (Ky. 1999), overruled in part on other grounds by Padgett v.
Comonwealth, 312 S.W.3d 336 (Ky. 2010). Mills argued, unsuccessfully, that subjective factors, namely “that his
relatively low IQ (76) and his limited educational background,” must be considered in assessing the totality of the
circumstances surrounding the making of his confession and render his confession involuntary. Id. at 481 (stating
415
circumstances surrounding the confession,””’ and “turns on the presence or absence of coercive
police activity.”?”
The Kentucky Supreme Court has held that “mental retardation is a factor to consider in
assessing the voluntariness of a confession,” but that “the mere existence of a mental condition,
by itself and apart from its relation to police coercion, does not make a statement constitutionally
involuntary.”””’ Recently, the Court held that a confession of a murder defendant was voluntary
despite the court finding the defendant “seriously mentally retarded” and therefore ineligible for
the death penalty.””°
A review of case law in the Commonwealth reveals that law enforcement practices are not
always without coercion in Kentucky. In Bailey v. Commonwealth, the police interrogated a
mentally retarded, illiterate defendant with an IQ of fifty for seven hours despite the suspect’s
“complete inability to understand his Miranda rights.”**"' The Kentucky Supreme Court later
explained that despite the absence of physical coercion in Bailey,
coercion can be psychological as well [,and] . . . [t]his case justifies the rationale
underlying the use of the totality of circumstances approach: it is simply
impossible to evaluate the police action outside the lens of Bailey's very serious
mental deficiency, which necessarily calls into question his ability to give a
reliable confession.”
Under these circumstances, the Court upheld suppression of the severely mentally retarded
defendant's confession.”? However, it is unclear whether Kentucky is sufficiently protecting
against the admission of involuntary confessions from individuals with mild to moderate mental
retardation. For example, in Rogers v. Commonwealth, the Kentucky Supreme Court held that a
that “these factors are only relevant inasmuch as their presence causes a defendant to be predisposed to yield to
coercive police tactics”).
ate: Bailey v. Commonwealth, 194 S.W.3d 296, 300, 302 (Ky. 2006). Other factors that the court will consider are
the defendant's age, education, intelligence, and linguistic ability. Id. at 300.
278 Mills, 996 S.W.2d at 481.
279 Rogers v. Commonwealth, 86 S.W.3d 29, 37 (Ky. 2002) (non-death penalty case) (emphasis added) (citing
Lewis v. Commonwealth, 42 S.W.3d 605, 612 (Ky. 2001)).
280 Edmonds v. Commonwealth, No. 2007-SC-000350-MR, 2009 WL 4263142, at *12-14 (Ky. Nov. 25, 2009)
(“Under the totality of the circumstances surround the making of the confession, [] including [the defendant’ s]
mental retardation, this Court finds there was nothing inherently or objectively coercive about the interrogation in
this case [] and that his initial statement was made voluntarily.”) (intemal citations omitted).
281 Bailey, 194 S.W.3d at 298, 303-04 (noting that the defendant had an IQ of “50 which places him in the bottom
.07% of the population. According to testimony presented at the suppression hearing, Bailey's mental ability is
equivalent to that of a six-year-old child. He is illiterate and left school in the ninth grade.”). The court must
determine whether the defendant's Miranda waiver was (1) “the product of a free and deliberate choice rather than
intimidation, coercion, or deception,” and (2) “made with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it.” Mills , 996 S.W.2d at 482 (citing Moran v. Burbine,
475 U.S. 412 (1986)). The Commonwealth only needs to prove a waiver of Miranda by a preponderance of the
evidence. Mills , 996 S.W.2d at 482.
28 Bailey, 194 S.W.3d at 302.
aa Bailey v. Commonwealth, 194 S.W.3d 296, 304 (Ky. 2006) (noting that deference to the trial court’s factual
findings and rulings should be “required because the trial court is in the best position to evaluate the evidence”).
416
confession was voluntary even though the police had misused interrogation techniques when
interviewing a mentally retarded defendant who had an IQ of sixty-five.”
Thus, while mental retardation is not a per se bar to a court's finding of the voluntariness of a
confession, in some instances, the severity of a suspect’s mental retardation will raise “issues of
suggestibility and possible overreaching” that “must be factored into a consideration of the
totality of the circumstances.” However, it is unclear whether Kentucky courts adequately
consider a defendant’s mental capacity in determining whether s/he voluntarily confessed.
Law Enforcement Practices
Kentucky law enforcement agencies and training academies certified by the Commission on
Accreditation for Law Enforcement Agencies (CALEA) are required to adopt written directives
establishing procedures to be used in criminal investigations, including procedures on interviews
and interrogations.”*” CALEA further requires a written directive for assuring compliance with
all applicable constitutional requirements relating to interviews, interrogations, and access to
counsel.”“* Although directives produced in an effort to comply with CALEA standards may
include procedures designed to ensure that the Miranda rights of mentally retarded individuals
are sufficiently protected and that false, coerced, or garbled confessions are not obtained or used,
only two law enforcement agencies within the Commonwealth are accredited by CALEA.””
However, under the Kentucky Association of Chiefs of Police (KACP) Accreditation Program,
Kentucky law enforcement agencies seeking KACP accreditation must adopt written directives
establishing procedures to be used in criminal investigations, including procedures and best
practices on interviews, interrogations and access to counsel.””” In 2009, KACP adopted new
standards requiring all entities applying for accreditation or reaccreditation to create written
directives “establish[ing] procedures for handling mentally ill individuals, including those
au Rogers, 86 S.W.3d at 34-36 (“This Court does not doubt that [petitioner's] intellectual capability is limited.
However, this fact alone does not render his statement involuntary.”). The Court did, however, find that the trial
court's refusal to allow the defendant to introduce evidence of the deceptive tactics used by the police was reversible
error. Id. at 37-38. See also Smith v. Commonwealth, No. 2000-CA-001735-MR, 2003 WL 21362056 (Ky. June
13, 2003) (reversed and remanded based on Rogers).
285 Bailey, 194 S.W.3d at 302.
286 See, e.g., Humphrey v. Commonwealth, No. 2002-SC-0437-MR, 2003 WL 1217735, at *1-2 (Ky. Feb. 20,
2003) (non-death penalty case) (finding the defendant's confession voluntary despite an IQ of seventy-three and a
two year hospitalization after being found incompetent to stand trial); Rogers, 86 S.W.3d at 35-36; Edmonds v.
Commonwealth, No. 2007-SC-000350-MR, 2009 WL 4263142, at *12-14 (Ky. Nov. 25, 2009).
287 COMM’N ON ACCREDITATION OF LAW ENFORCEMENT AGENCIES, STANDARDS FOR LAW ENFORCEMENT
AGENCIES, THE STANDARDS MANUAL OF THE LAW ENFORCEMENT AGENCY ACCREDITATION PROGRAM 42-2 (5th ed.
2009) [hereinafter CALEA STANDARDS] (Standard 42.2.2).
268 CALEA STANDARDS, supra note 287, at 1-3 (Standard 1.2.3).
289 See About Us, CoMM’N ON ACCREDITATION OF LAW ENFORCEMENT AGENCIES,
http://www.calea.org/content/commission (last visited July 21, 2011); CALEA Client Database, COMM’N ON
ACCREDITATION OF LAW ENFORCEMENT AGENCIES, http://www.calea.org/content/calea-client-datahase (last visited
July 21, 2011) (searching Kentucky clients).
Ky. ASS’N OF CHIEFS OF POLICE, ACCREDITATION PROGRAM (2009), available at
http://www.kypolicechiefs.org/joomla/attachments/095 STANDARDS _ 2009 April 20_.doc [hereinafter KACP
STANDARDS].
417
pending criminal charges and mental health commitments.””"! As of November 21, 2011,
eighty-four law enforcement entities within the Commonwealth were accredited by KACP;
however, we were unable to determine the number of agencies that currently comply with the
new standards on handling individuals with mental illness.2°? In addition, we were unable
determine whether newly adopted policies specifically address protection of the Miranda rights
of mentally retarded persons.
As described in Recommendation #2, Kentucky requires that all law enforcement officers in the
Commonwealth complete a basic training program, which consists of, among other requirements,
forty hours on the legal aspects of interviews, interrogations, and investigations, and at least an
additional forty hours on interview and interrogation techniques.’ However, we are unable to
determine the extent to which this training covers special treatment of mentally retarded suspects
during custodial interviews.
In addition, as discussed in Recommendation #2, the Commonwealth has adopted legislation
requiring the use and development of Crisis Intervention Teams (CIT), which requires training
on best practices for law enforcement intervention with persons who may have mental
retardation or mental illness.?“* CIT-trained officers are better aware of the effects of mental
retardation and mental illness on a suspect's ability to voluntarily waive his/her Miranda
rights.”°° However, we were unable to determine whether smaller, local law enforcement
agencies have implemented CIT training programs or similar policies, procedures, or protocols
on the special treatment of mentally retarded suspects during custodial interrogations.
Not all law enforcement agencies within the Commonwealth are accredited, either by KACP or
CALEA, and we are unable to assess the extent to which law enforcement agencies across the
Commonwealth have adopted or implemented policies and procedures that ensure that the
Miranda rights of mentally retarded suspects are sufficiently protected. We also are unable to
determine if courts protect against admission of false, coerced, or garbled confessions by
suspects with mild to moderate mental retardation. Therefore, we are unable to determine
whether the Commonwealth is in compliance with Recommendation #6.
G. Recommendation #7
251 KACP STANDARDS, supra note 290, at 57 (Standard 30-8).
22 See Accredited Agencies, Ky. ASS’N OF CHIEFS OF POLICE,
http://www.kypolicechiefs.org/joomla/index.php?option=com_content&view=article&id=54&Itemid=64 (last
visited July 21, 2011).
293 Ky. REV. STAT. ANN. § 15.404 (West 2011).
294 Ky, REV. STAT. ANN. § 210.365 (West 2011); see supra notes 222-33 and accompanying text. LMPD officers
are provided forty hours of crisis intervention training on recognizing and addressing mental health issues during
basic training. LMPD officers are required to attend 1148 hours of Basic Training provided by the Louisville Metro
Police Academy. Interview with Lt. Kevin DeSpain, supra note 227 (noting that all of LMPD’s over 1,200 officers
have had some sort of crisis intervention training, even if not all of them have received certification).
285 While CIT may divert a mentally ill or retarded individual suspected of a misdemeanor or minor felony from
police custody to a mental health facility for treatment, if a mentally ill individual is suspected of a major felony ora
capital offense, s/he instead will remain in police custody. Interview with Lt. Kevin DeSpain, supra note 227.
418
The jurisdiction should have in place mechanisms to ensure that, during court
proceedings, the rights of mentally retarded persons are protected against
“waivers” that are the product of their mental disability.
In Kentucky, a defendant is permitted to waive his/her constitutional rights, such as the right
against compelled self-incrimination and the right to counsel, if a court determines that the
defendant did so knowingly, voluntarily, and intelligently.” When assessing the voluntariness
of a defendant's waiver of any right, the court is required to “consider such factors as the
person’ s age, education, and familiarity with English, and the complexity of the crime
involved.”””’ If the court had previously determined the defendant competent to stand trial, such
a finding will be a strong indicator that the defendant is competent to waive constitutional rights
guaranteed in a criminal trial.?%*
If a defendant unequivocally and timely requests to waive his/her right to counsel, a Kentucky
trial court must hold an evidentiary hearing (known as a Faretta hearing) to determine whether
this waiver meets the “knowing, voluntary and intelligent’ standard.”** During this hearing, the
defendant's testimony must demonstrate that the waiver meets the requisite standard, the court
must issue a waming to the defendant about the dangers of relinquishing counsel or any other
constitutional right, and the court must make a specific finding on the record that the defendant
meets the “knowing, intelligent and voluntary” standard.” The Kentucky Supreme Court has
noted that the “waiver of counsel by a borderline-competent pro se defendant, adds [] additional
difficulties to an already complex clash of fundamental constitutional rights.”*' In order to
safeguard against a defendant's mental limitations, a trial court may deny a defendant’ s “right to
proceed pro se and to structure the role and scope of hybrid counsel” accordingly.“°
Additionally, before a capital defendant can waive the presentation of mitigating evidence, the
trial court must inform the defendant of his/her right to present such evidence, inquire about
296 Ky, Rev. STAT. ANN. § 31.140 (West 2011); Commonwealth v. Terry, 295 S.W.3d 819, 822-24 (Ky. 2009);
Grady v. Commonwealth, 325 S.W.3d 333, 341 (Ky. 2010); Faretta v. California, 422 U.S. 806, 835 (1975).
297 Ky, REV. STAT. ANN. § 31.140 (West 2011).
298 Major v. Commonwealth, 275 S.W.3d 706, 719 (Ky. 2009); Chapman v. Commonwealth, 265 S.W.3d 156,
174-75 (Ky. 2007) (holding that there is no heightened standard of competency for waiver of the right to trial; it is
the same standard as that used for a competency to stand trial); Wooden v. Commonwealth, No. 2009-CA-000325-
MR, 2010 WL 1133242, at *3 (Ky. Ct. App. Mar. 26, 2010) (noting that a trial court is not required to hold
successive competency evaluations or hearings) (emphasis added).
299 Major, 275 S.W.3d at 718-19; Grady, 325 S.W.3d at 341-42; Chapman, 265 S.W.3d at 174.
300 Ky. REV. STAT. ANN. § 31.140 (West 2011) (A defendant “may waive in writing, or by other record, any right
provided by this chapter, if the court concemed, at the time of or after waiver, finds of record that he has acted with
full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise according to law.”);
Terry, 295 S.W.3d at 823; Depp v. Commonwealth, 278 S.W.3d 615, 616-20 (Ky. 2009) (non-capital case)
(upholding the trial court’s decision to permit the defendant to waive his right to counsel, despite the trial court’s
failure to specifically state the “knowing and voluntary” language of the requisite standard).
301 Major, 275 S.W.3d at 719.
302 Major, 275 S.W.3d at 722. Kentucky courts permit a criminal defendant to make a limited waiver of the right
to counsel and represent him/herself only on certain matters, “specifying the extent of services [s/Jhe desires, and
[s/Jhe then is entitled to counsel whose duty will be confined to rendering the specified kind of services,” known as
hybrid representation. Wake v. Barker, 514 S.W.2d 692, 696 (Ky. 1974); Ky. Const. 11. A Faretta hearing must
be held when a defendant will receive hybrid representation. Major, 275 S.W.3d at 718-19, 722. See also
Chapman, 265 S.W.3d at 174.
419
whether the defendant and his/her counsel have discussed the importance of mitigating evidence,
the risks of foregoing the use of such evidence, and the possibility that mitigating evidence could
be used to offset aggravating circumstances.°° The trial court may accept the defendant's
waiver of mitigation by making findings of fact regarding the defendant's understanding and
waiver on the record.°™ Similarly, if a defendant wishes to forgo an insanity defense against the
advice of counsel, and the court “feel[s] that [the defendant] is not mentally sufficient to waive”
the defense, the court must determine if the defendant “notwithstanding competency to stand
trial, is capable of voluntarily and intelligently waiving such defense.”*”°
If a capital defendant pleads guilty and requests the death penalty, the court, in addition to
determining that the waivers were made “competently, knowingly, intelligently, and
voluntarily,” will also determine “whether [s/Jhe has capacity to appreciate his[/her] position
and make a rational choice with respect to pleading guilty, waiving jury sentencing, waiving [the
presentation of] mitigating evidence, and seeking the death penalty or on the other hand whether
[s/]he is suffering from a mental disease, disorder, or defect which may substantially affect
his[/her] capacity in the premises.”*°° It is unclear whether a capital defendant who wishes to
enter a guilty plea to capital murder, without any condition on sentencing, will be afforded the
additional scrutiny described above to ensure that the decision to plead guilty, thereby increasing
the possibility of a death sentence, is not bome out of the defendant’ s mental disability or illness.
If a capital defendant is sentenced to death, s/he is not permitted to waive the automatic
proportionality review that is conducted by the Kentucky Supreme Court each time a death
sentence is imposed.**” Additionally, it does not appear that a condemned defendant may waive
his/her right to file a direct appeal that would challenge any trial errors, both preserved and
unpreserved, relating to the defendant’s conviction and sentence.°”* Outside of official court
303 St. Clair v. Commonwealth, 140 S.W.3d 510, 560-61 (Ky. 2004); Chapman, 265 S.W.3d at 172.
54 St. Clair, 140 S.W.3d at 560-61.
a0 Jacobs v. Commonwealth, 870 S.W.2d 412, 418 (Ky. 1994). Furthermore, if at any time during trial a court has
reasonable grounds to believe a defendant may be incompetent to stand trial, it may appoint a psychologist or
psychiatrist to examine, treat and report on the defendant's condition. KY. REV. STAT. ANN. § 504.100(1) (West
2011); Ky. R. Crim. P. 8.06; Bishop v. Caudill, 118 S.W.3d 159, 163 (Ky. 2003). For example, in Chapman v.
Commonwealth, the court appointed a psychiatrist to evaluate the capital defendant on three separate occasions to
ensure that he was competent to waive his right to an attorney and to trial, to plead guilty, to request the death
penalty, and to waive his right to any post-conviction review pursuant to KRS § 504.100. Chapman v.
Commonwealth, 265 S.W.3d 156, 161 (Ky. 2007).
3% Chapman, 265 S.W.3d at 179-80 (citing Rees v. Peyton, 384 U.S. 312, 314 (1966)) (internal brackets omitted).
307 See Ky. REV. STAT. ANN. § 532.075 (West 2011). The Kentucky Supreme Court must review any death
sentence handed down by a Kentucky court, and must determine (a) “[wJhether the sentence of death was imposed
under the influence of passion, prejudice, or any other arbitrary factor’; (b) whether the evidence supports the
enumerated statutory aggravating chapter; and (c) “[w]hether the sentence of death is excessive or disproportionate
to the penalty imposed in similar cases, considering both the crime and the defendant.” Ky. REV. STAT. ANN. §
532.075(3)(a)-(c) (West 2011).
308 Ky. REV. STAT. ANN. § 532.075(1) (West 2011) (”Whenever the death penalty is imposed for a capital offense,
and upon the judgment becoming final in the Circuit Court, the sentence shall be reviewed on the record by the
Supreme Court.”). In Chapman, the capital defendant sought to waive his rights and requested the death penalty.
Chapman, 265 S.W.3d at 156. However, the Kentucky Department of Public Advocacy filed the direct appeal
petition on his behalf. Chapman, 265 S.W.3d at 162 n.2 (“For simplicity’s sake, this opinion will refer to the
arguments advanced on Chapman’s behalf as being advanced by Chapman himself.”).
420
proceedings, the Govemor’s power to grant clemency as guaranteed in the Kentucky
Constitution is absolute, and could be granted over the inmate’ s objection.*”°
While the Commonwealth has enacted several measures to ensure that individuals with mental
retardation or mental illness are protected against waivers that may be a product of that
disability, we cannot determine if the Commonwealth is ensuring that such individuals are
protected against waivers when the capital defendant pleads guilty without any condition on
sentencing. Therefore, we cannot determine if the Commonwealth is fully compliant with
Recommendation #7.
5 See Ky. Const. § 77.
421
Ill. ANALY SIS-MENTAL ILLNESS
A. Recommendation #1
All actors in the criminal justice system, including police officers, court officers,
prosecutors, defense attorneys, judges, jailers, and prison authorities, should be
trained to recognize mental illness in capital defendants and death-row inmates.
As in Mental Retardation Analysis Recommendation #2, several actors within Kentucky's
criminal justice system receive training on identifying and interacting with mentally ill capital
defendants and death row inmates.*!° However, because the Commonwealth does not require
such training of all law enforcement, court officers, prosecutors, defense attorneys, judges or
correctional staff, it is in partial compliance with Recommendation #1.
B. Recommendation #2
During police investigations and interrogations, special steps should be taken to
ensure that the Miranda rights of a mentally ill person are sufficiently protected and
that false, coerced, or garbled confessions are not obtained or used.
The Commonwealth of Kentucky has implemented legal mechanisms and adopted law
enforcement practices to help ensure that the Miranda rights of mentally ill offenders are
sufficiently protected during investigations and interrogations. *!!
Legal Mechanisms
Similar to the Commonwealth’s consideration of the voluntariness of a mentally retarded
suspect's confession, mental impairments are factors to be considered in weighing whether or not
a defendant made a knowing and voluntary waiver of his/her Miranda rights.*” For a full
discussion on the steps taken by the courts to ensure that the Miranda rights of a mentally ill
person are sufficiently protected and that false, coerced, or garbled confessions are not obtained
or used, see Mental Retardation Analysis Recommendation #608
Law Enforcement Practices
In addition to the Commonwealth’s training and accreditation requirements of police officers
described in Mental Retardation Analysis Recommendation #6, in 2009 Kentucky’s main law
enforcement accrediting body adopted new standards requiring all entities applying for
accreditation or reaccreditation to create written directives “establish[ing] procedures for
handling mentally ill individuals, including those pending criminal charges and mental health
commitments.”*!* However, we were unable to determine the number, if any, of law
310
on See supra notes 216-44 and accompanying text.
See supra note 284 and accompanying text.
oi Bailey v. Commonwealth, 194 S.W.3d 296, 300 (Ky. 2006).
313 See supra notes 275-295 and accompanying text.
34 KACP STANDARDS, supra note 290, at 57 (Standard 30-8).
422
enforcement agencies that have adopted or implemented these new standards on handling
individuals with mental illness.*!°
While the Commonwealth has adopted legal mechanisms to guard against the admission of false,
coerced, or garbled confessions, because we are unable to determine to what extent law
enforcement takes special steps to guard against the obtainment of such confessions, we are
unable to determine whether the Commonwealth is in compliance with Recommendation #2.
C. Recommendation #3
The jurisdiction should have in place policies that ensure that persons who may
have mental illness are represented by attorneys who fully appreciate the
significance of their client’s mental disabilities. These attorneys should have
training sufficient to assist them in recognizing mental disabilities in their clients
and understanding its possible impact on their clients’ ability to assist with their
defense, on the validity of their “confessions” (where applicable) and on their initial
or subsequent eligibility for capital punishment. These attorneys should also have
sufficient funds and resources (including access to appropriate experts, social
workers, and investigators) to determine accurately and prove the disabilities of a
defendant who counsel believes may have mental disabilities.
The Commonwealth, through the Department of Public Advocacy (DPA), provides capital
defense attorneys training on recognizing and understanding the impact of mental illness in their
clients. However, private counsel used in the event of a conflict of interest in the Louisville
Metro Public Defender’s Office (Metro Defender) are not required to undergo such training
before accepting a capital case.*"° For a detailed discussion on the training provided to capital
defense attomeys in the Commonwealth, see Mental Retardation Analysis Recommendation
B.
As described in Mental Retardation Analysis Recommendation #3, the Commonwealth provides
“reasonably necessary” funding and resources, including expert and investigative services, to
capital defense attorneys in order to diagnose and prove their clients’ mental disabilities at trial
under KRS 31.185.°!* It appears that, upon request, Commonwealth trial courts grant adequate
funding for capital defense attorneys to obtain mental health experts to diagnose and prove
defendants’ mental disabilities.°'? However, although DPA and the Metro Defender maintain
social workers, investigators and mitigation specialists on staff, and therefore do not have to
request statutory funding for such services, due to the ever-increasing number of capital trials in
the Commonwealth, these defense personnel are overburdened with capital cases.°"? From 2009
315 See Accredited Agencies, Ky. ASS’N OF CHIEFS OF POLICE,
http://www.kypolicechiefs.org/joomla/index.php?option=com_content&view=article&id=54&Itemid=64 (last
visited July 26, 2011).
316 Interview with Metro Defender, supra note 235.
See supra notes 236-247 and accompanying text.
Ky. REV. STAT. ANN. § 31.185 (West 2011); see supra notes 249-264 and accompanying text.
Interview with DPA, supra note 247.
Interview with DPA, supra note 247; Interview with Metro Defender, supra note 235247.
317
318
319
320
423
to 2010, defense counsel have recently requested funding for the assistance of a mitigation
specialist at trial, which Kentucky trial courts have rejected on at least two occasions. *!
During post-conviction proceedings, an indigent petitioner may be entitled to legal representation
as well as public funds for an expert witness if the trial or appellate court “has determined that
the post-conviction petition sets forth allegations sufficient to necessitate an evidentiary
hearing.”*”’ It appears death row inmates and their defense counsel have significantly greater
difficulty obtaining such resources at post-conviction than at trial; typically, post-conviction
courts in Kentucky do not authorize funding for experts and resources.**? For an in-depth
discussion on the funding and resources provided by the Commonwealth to detect and prove
mental illness is capital defendants, see Mental Retardation Analysis Recommendation #3.°“*
For the reasons set forth, Kentucky is in partial compliance with Recommendation #3.
D. Recommendation #4
Prosecutors should employ, and trial judges should appoint, mental health experts
on the basis of their qualifications and relevant professional experience, not on the
basis of the expert’s prior status as a witness for the State. Similarly, trial judges
should appoint qualified mental health experts to assist the defense confidentially
according to the needs of the defense, not on the basis of the expert's current or past
status with the State.
Whenever a question about the defendant’ s competency to stand trial exists, a court is required to
appoint at least one psychologist or psychiatrist, who “is working for the court, not necessarily
the defense or the Commonwealth,” to examine the defendant.*”° In addition, a Commonwealth
prosecutor may move the court to order a pretrial evaluation when the defendant gives notice that
s/he intends to rely on an insanity defense or produce expert mental health testimony for any
reason (e.g., to produce evidence of a capital defendant's mental condition at sentencing).°”°
In either of the above instances, Commonwealth prosecutors typically employ, and trial judges
appoint, mental health experts based on their employment status at the Kentucky Correctional
Psychiatric Center (KCPC).°*” KCPC’s stated purpose is to “assist{] the Courts in the evaluation
321 Interview with DPA, supra note 247; Interview with Metro Defender, supra note 235.
322 Hodge v. Commonwealth, 244 S.W.3d 102, 108 (Ky. 2008) (the court will examine the petitioner's proposed
list of witnesses and will grant funds for witnesses that the court determines to be “reasonably necessary for those
[indigent post-conviction] petitioners fully to present their claims.”). See also Mills v. Messer, 268 S.W.3d 366, 367
(Ky. 2008) (noting that the “trial court still maintains the discretion to deny such funds if it determines that the
expert testimony is not reasonably necessary.”).
323° Interview with DPA, supra note 247; supra notes 256-258 and accompanying text.
See supra notes 249-73 and accompanying text.
35 Ky. REV. STAT. ANN. § 504.100(1) (West 2011); Bishop v. Caudill, 118 S.W.3d 159, 163 (Ky. 2003).
6 Ky. REV. STAT. ANN. § 504.070(2) (West 2011); Ky. R. CRIM. P. 7.24(3)(B). In this event, the court may
commit the defendant in a Commonwealth psychiatric facility for up to thirty days. Ky. Rev. STAT. ANN. §
504.080(1) (West 2011).
7 Letter from Sharon Proctor, Associate Superintendent, Ky. Cabinet for Health & Family Services and Ky. Corr.
Psychiatric Ctr., to Amy Staples, Assistant Public Advocate, Ky. Dep't of Pub. Advocacy, Oct. 3, 2007 (on file with
424
of suspected criminal offenders to determine competency to stand trial and/or to determine the
existence of a mental disease or defect at the time of the alleged criminal act.”** The Associate
Superintendent of KCPC has declared that “[i]t has been a long-standing policy to decline to
conduct any evaluations as an expert exclusively for either the prosecution or the defense in
order to maintain our objectivity in delivering services to the courts.”*” However we note in the
vast majority of cases where mental retardation or mental illness is at issue, Commonwealth
prosecutors use KCPC experts to demonstrate their case or to rebut the testimony of experts
proffered by the defense.**” Indeed, the Court has stated that a pretrial “psychiatric evaluation is
the Commonwealth’s most powerful means of refuting a mental defense and that the evaluation’s
specific purpose is to give the Commonwealth an opportunity to refute [the defendant's]
anticipated insanity or mental illness defense.” °°"
As discussed in Mental Retardation Analysis Recommendation #3, an indigent capital defendant
may make an ex parte request to be appointed a private mental health expert to assist the defense
by showing, with requisite specificity, that the expert is “reasonably necessary” and that the use
of state facilities, i.e. KCPC, is impractical.” As previously noted, it appears that Kentucky
trial courts provide adequate funding for defense attorneys to be able to hire qualified mental
health experts to assist the defense confidentially, according to the needs of the defense, and to
prove any mental disabilities of a capital defendant at trial.**
A defendant is entitled to an appointed mental health expert that only serves the needs of the
defendant who will “provide assistance to the accused to help evaluate the strength of his
defense, to offer his own expert diagnosis at trial, and to identify weaknesses in the prosecution's
case by testifying and/or preparing counsel to cross-examine opposing experts.”** This
author). See, e.g., Binion v. Commonwealth, 891 S.W.2d 383, 384 (Ky. 1995); Hunter v. Commonwealth, 869
S.W.2d 719, 721 (Ky. 1994).
oo Letter from Sharon Proctor, supra note 327.
Id.
330 See, e.g., White v. Commonwealth, 178 S.W.3d 470, 485-86 (Ky. 2005); Edmonds v. Commonwealth, No.
2007-SC-000350-MR, 2009 WL 4263142, at *11 (Ky. Nov. 25, 2009); Dean v. Commonwealth, 777 S.W.2d 900,
901 (Ky. 1989), overruled on other grounds by Caudill v. Commonwealth, 120 S.W.3d 635 (Ky. 2003); Skaggs v.
Commonwealth, No. 2002-SC-0436-MR, 2005 WL 2314073, at *2 (Ky. Sept. 25, 2005); Parrish v. Commonwealth,
272 S.W.3d 161, 167 (Ky. 2008); Chapman v. Commonwealth. 265 S.W.3d 156, 161, 172-73 (Ky. 2007); Bemry v.
Commonwealth, No. 2001-SC-0457-MR, 2003 WL 22415627, at *4 (Ky. Oct. 23, 2003); Berry v. Commonwealth,
No. 2008-CA-001612-MR, 2009 WL 2901313, at *4 (Ky. Ct. App. Sept. 11, 2009); Gaither v. Commonwealth, No.
2004-SC-0474-MR, 2006 WL 436071, at *3 (Ky. Feb. 23, 2006).
351 Cain v. Abramson, 220 S.W.3d 276, 282 (Ky. 2007) (intemal citations omitted) (non-death penalty case).
However, Kentucky Rule of Criminal Procedure 7.24 provides as least some safeguards for the defendant's
constitutional rights by limiting the admissibility of any statements “made by the defendant in the course of any
[mental condition] examination provided for by this rule, whether the examination be with or without the consent of
the defendant,” as well as any “testimony by the expert based upon such statement, and no fruits of the statement . . .
except upon an issue regarding mental condition on which the defendant has introduced testimony.” Ky. R. CRIM. P.
7.24(3)(B)(ii) (permitting the court to enter, during the guilt phase, an order “prohibiting disclosure to [] attorneys
for either party of any self-incriminating information divulged by the defendant”).
382 See supra notes 249-258 and accompanying text; Ky. REV. STAT. ANN. §§ 31.110(1)(b), 31.185(1)-(2) (West
2011); Benjamin v. Commonwealth, 266 S.W.3d 775, 790 (Ky. 2008); Commonwealth v. Paisley, 201 S.W.3d 24,
36 (Ky. 2006); Binion, 891 S.W.2d at 386.
383" See supra notes 256-258 and accompanying text.
33 Binion v. Commonwealth, 891 S.W.2d 383, 385-86 (Ky. 1995) (if the capital defendant's mental capacity “is to
be a significant factor at trial, the [Commonwealth] must, at a minimum, assure the defendant access to a competent
425
psychologist or psychiatrist may also participate in a court-ordered pretrial evaluation; however,
a defendant is not entitled to have counsel present at this evaluation. °°
There have been instances in the Commonwealth where defense counsel employed incompetent
or ineffective mental health experts at trial. For example, in Skaggs v. Parker, the U.S. Court of
Appeals for the Sixth Circuit reversed and remanded an inmate’s death sentence for a new
penalty phase hearing based on the defense’s repeated use of a mental health expert whose
testimony was “bizarre and eccentric.”*° It was subsequently determined that the testifying
expert was, in fact, fraudulent, since he had actually only finished two years of college as an
English major.’ We are aware of at least one other criminal trial where this expert or others
like him testified, although we are unable to determine the extent to which fraudulent experts
have testified at additional capital trials.°**
While Kentucky trial courts typically grant a defendant’s motion for funding to hire a qualified
mental health expert at trial, Kentucky courts often appoint an expert based on his/her
employment status at the Commonwealth-affiliated Kentucky Correctional Psychiatric Center,
regardless of the expert’s qualifications and relevant professional experience. Therefore, we are
unable to determine if the Commonwealth is in compliance with Recommendation #4.
E. Recommendation #5
Jurisdictions should provide adequate funding to permit the employment of
qualified mental health experts in capital cases. Experts should be paid in an
amount sufficient to attract the services of those who are well trained and who
remain current in their fields. Compensation should not place a premium on quick
and inexpensive evaluations, but rather should be sufficient to ensure a thorough
evaluation that will uncover pathology that a superficial or cost-saving evaluation
might miss.
As discussed in Mental Retardation Analysis Recommendation #8, under KRS 31.110 and KRS
31.185, capital defendants in Kentucky are entitled to funds for expert services if the funds are
“reasonably necessary.”*°° Post-conviction petitioners on death row are “entitled to state funds
for the procurement of expert testimony upon a showing that such witness is reasonably
necessary for a full presentation of the petitioner's case.”*“° According to the KRS, such funding
mental health expert who will conduct an appropriate examination and assist in the evaluation, preparation and
presentation of the defense”). In Binion, the defendant had been provided a neutral examination at KCPC, which the
trial court had found insufficient to meet due process requirements. Id.
335 Ky, REV. STAT. ANN. § 504.080(5) (West 2011); Cain, 220 S.W.3d at 280-81 (“In the context of the case at bar,
we find the psychiatric evaluation . . . is not a critical stage in the procedural system giving rise to a constitutional
necessity for the presence of counsel .... [U]nder the facts of this case, [] there is no constitutional right... . for an
accused to have counsel present during a psychiatric examination.”).
388 Skaggs v. Parker, 235 F.3d 261, 269, 275 (6th Cir. 2001).
357 Skaggs, 235 F.3d at 265, 268.
38 Young v. Commonwealth, 585 $.W2d 378, 378-79 (Ky. 1979) (same expert as in Skaggs) (where defense
counsel noted in request for funds “this particular defense expert was chosen by the undersigned counsel because of
his long experience in the field of forensic psychology”).
359 See supra notes 249-258 and accompanying text; Ky. REV. STAT. ANN. §§ 31.110(1)(b), 31.185 (West 2011).
349 See supra notes 263-264 and accompanying text.
426
is to be paid by the county or local government where the proceeding is held, although the
amount is not to “exceed the established rate charged by the Commonwealth and its agencies.” **"
Commonwealth trial courts typically provide adequate funds to public advocates for the purpose
of employing qualified mental health experts to thoroughly evaluate capital defendants.“* In
practice, defense counsel obtains advance authorization for funding to obtain expert services in
order to later seek reimbursement for the cost of expert services.“ However, it appears that
Kentucky courts generally do not provide funding for expert evaluations to be conducted during
post-conviction proceedings for death row inmates. **
Therefore, Kentucky is in partial compliance with Recommendation #5.
F. Recommendation #6
The jurisdiction should forbid death sentences and executions with regard to
everyone who, at the time of the offense, had significant limitations in both
intellectual functioning and adaptive behavior as expressed in conceptual, social,
and practical adaptive skills, resulting from mental retardation, dementia, or a
traumatic brain injury.
Recommendation #7
The jurisdiction should forbid death sentences and executions with regard to
everyone who, at the time of the offense, had a severe mental disorder or disability
that significantly impaired the capacity (a) to appreciate the nature, consequences
or wrongfulness of one’s conduct, (b) to exercise rational judgment in relation to
34 Ky, REV. STAT. ANN. § 31.185(3) (West 2011) (providing funding for “[a]ny direct expense, including the cost
of a transcript or bystander’s bill of exceptions or other substitute for a transcript that is necessarily incurred in
Tepresenting a needy person”).
32 See supra notes 256-258 and accompanying text (noting that trial courts consistently grant multiple requests for
additional funding or “good faith” orders allowing defense counsel to use “reasonable” amounts of funds to hire
expert assistance).
3" Td.; Young, 585 S.W.2d at 379 (“We read [KRS 31.185] as requiring such authorization in advance of procuring
the desired services” where the public advocates were not yet authorized to represent the defendant during the time
the mental health evaluation was conducted); McCracken County Fiscal Court v. Graves, et al., 885 S.W.2d 307,
314 (Ky. 1994) (“[W]e cannot overstate the importance of the process of advance authorization. With this opinion,
we hold that it is the duty of trial counsel (as counsel did in this case) to move for advance authorization of expenses
which he considers properly chargeable to the county.”).
3“ Interview with DPA, supra note 247; Interview with Metro Defender, supra note 235. See, eg., St. Clair v.
Commonwealth, 140 S.W.3d 510, 530 (Ky. 2004); Bowling v. Commonwealth, 163 S.W.3d 361, 365-66 (Ky.
2005); Bowling v. Commonwealth, 80 S.W.3d 405, 421 (Ky. 2002). While trial courts may exercise their discretion
to order an evaluation to determine if a capital defendant is competent to stand trial, we are unaware of any instance
where a post-conviction court ordered a competency evaluation to determine if an inmate is competent to proceed
with post-conviction relief. See Stiltner v. Commonwealth, No. 2007-CA-002048-MR, 2009 WL 102975, at *2
(Ky. Ct. App. Jan. 16, 2009) (finding that “it is reasonable to believe” that, in order for a post-conviction petitioner
to obtain a competency evaluation, s/he must show “the existence of ‘specific factual matters at issue that require the
defendant to competently consult with counsel”) (internal citations omitted). In at least one case, Kentucky defense
counsel was unable to obtain an independent mental expert to evaluate the capital defendant prior to trial, despite
contacting over twenty psychiatrists, although it is unclear whether this was due to time or financial constraints.
Hunter v. Commonwealth, 869 S.W.2d 719, 722 n.1 (Ky. 1994).
427
conduct, or (c) to conform one’s conduct to the requirements of the law. A disorder
manifested primarily by repeated criminal conduct or attributable solely to the
acute effects of voluntary use of alcohol or other drugs does not, standing alone,
constitute a mental disorder or disability for purposes of this recommendation.
The Commonwealth of Kentucky excludes from the death penalty defendants who, at the time of
the offense, were mentally retarded.*° The KRS defines “mental retardation” as (1) “significant
subaverage intellectual functioning” as evidenced by a functional intelligence quotient (IQ) score
of seventy or below, (2) “existing concurrently with substantial deficits in adaptive behavior{,]”
and (3) that “manifested during the developmental period.”*“° This prohibition does not include
defendants who have mental disabilities other than mental retardation, such as dementia and
traumatic brain injury, which result in significant impairments in both intellectual and adaptive
functioning, but may manifest after the age of eighteen.’ Furthermore, Kentucky courts cannot
exclude the death penalty as a sentencing option based on a court's pretrial determination that the
defendant is mentally ill,*“* nor does the Commonwealth prohibit imposition of a death sentence
on or execution of an individual who, at the time of their offense, had a severe mental illness,
disorder, or disability that significantly impaired his/her capacity to appreciate the nature,
consequences or wrongfulness of his/her conduct, to exercise rational judgment in relation to
conduct, or to conform his/her conduct to the requirements of the law.°“
Furthermore, the Commonwealth is one of a small number of states that permit a trier of fact to
return a “guilty but mentally ill” (GBMI) verdict in a criminal trial.°° While no capital
defendant has been sentenced to death upon the return of a GBMI conviction, Kentucky does not
preclude the imposition of a death sentence on a defendant found GBMI.**"
As a result, the Commonwealth is not in compliance with either Recommendation #6 or
Recommendation #7.
The Kentucky General Assembly has considered legislation that would bar the death penalty for
offenders found to be severely mentally ill at the time of the offense, based on the same
38 Ky. REV. STAT. ANN. § 532.140 (West 2011) (effective July 13, 1990). See also Bowling, 163 S.W.3d at 377.
MS Ky, REV. STAT. ANN. § 532.130(2) (West 2011).
347 See generally Ky. REV. STAT. ANN. § 532.130 (West 2011) (explicitly exempting only mentally retarded
offenders).
38 Commonwealth v. Ryan, 5 S.W.3d 113, 116-17 (Ky. 1999), abrogated on other grounds by Hoskins v. Maricle,
150 S.W.3d 1 (Ky. 2004).
349 Id.
350 See ALASKA STAT. ANN. § 12.47.030 (West 2011); DEL. CODE ANN. tit. 11, § 401(b) (West 2011); Ga. CopE
ANN. § 17-7-131(b)(1)-(2) (West 2011); ILL. Comp. STAT. ANN. 5/115-2 (West 2011); IND. CODE. ANN. § 35-36-2-5
(West 2011); Ky. REV. STAT. ANN. § 504,130 (West 2011); 18 Pa. Cons. STAT. ANN. § 314 (West 2011); but see
Commonwealth v. Stevens, 739 A.2d 507, 514 (Pa. 1999) (a guilty but mentally ill verdict is unavailable in a capital
case in Pennsylvania); S.C. CODE ANN. § 17-24-20 (West 2011); S.D. CopIFIED LAWS ANN. § 23A-26-14 (West
2011); see also N.M. STAT. ANN. § 31-9-3 (West 2003) (repealed by L. 2010, Ch. 97, § 1, effective May 19, 2010).
Ky. R. Cri. P. 8.08, 8.12 (limiting available pleas in a criminal case to pleas of guilty, guilty but mentally ill, and
not guilty); Ky. R. CRIM. P. 9.90; Ky. Rev. STAT. ANN. §§ 504.120, 504.130 (West 2011) (effective July 15, 1982).
351 “Ky. REV. STAT. ANN. §§ 504.120-504.150 (West 2011). Recently, in an unpublished opinion, the Kentucky
Supreme Court upheld the constitutionality of the Commonwealth’s GBMI statutes, although the Court did not
eliminate the question of statute’s constitutionality entirely. Star v. Commonwealth, 313 S.W.3d 30, 35-36 (Ky.
2010) (non-death penalty case).
428
diminished capacity premise that precludes the death penalty for mentally retarded offenders.*”
The proposed law defines a severely mentally ill defendant as someone who, “at the time of the
offense, had a severe mental disorder or disability that significantly impaired his or her capacity
to appreciate the nature, consequences, or wrongfulness of his or her conduct, exercise rational
judgment in relation to conduct, or conform his or her conduct to the requirements of the law.”**
The legislation stipulates that a “mental disorder manifested primarily by repeated criminal
conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs shall
not, standing alone, constitute a mental disorder or disability.”** This language mirrors
Recommendation #7.
The Kentucky Death Penalty Assessment Team applauds the introduction of the legislation
described above, exempting severely mentally ill defendants from the death penalty, and
recommends that the Commonwealth adopt such legislation. In addition, the Assessment Team
recommends that the Commonwealth adopt a rule or law that forbids death sentences and
executions with regard to everyone who, at the time of the offense, had significantly sub-average
limitations in both their general intellectual functioning and adaptive behavior, as expressed in
conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia or a
traumatic brain injury. Finally, the Assessment Team recommends that the Kentucky General
Assembly adopt a rule or law to preclude imposition of the death penalty in cases where a
defendant is found GBMI.
G. Recommendation #8
To the extent that a mental disorder or disability does not preclude imposition of the
death sentence pursuant to a particular provision of law (see Recommendations #6-
7 as to when it should do so), jury instructions should communicate clearly that a
mental disorder or disability is a mitigating factor, not an aggravating factor, in a
capital case; that jurors should not rely upon the factor of a mental disorder or
disability to conclude that the defendant represents a future danger to society; and
that jurors should distinguish between the defense of insanity and the defendant's
subsequent reliance on mental disorder or disability as a mitigating factor.
Section 532.025 of the KRS contains two relevant mitigating circumstances that permit a capital
juror to consider a defendant’s mental condition: (1) “[t]he capital offense was committed while
the defendant was under the influence of extreme mental or emotional disturbance even though
the influence of extreme mental or emotional disturbance is not sufficient to constitute a defense
to the crime[,]” and (2) “[a]t the time of the capital offense, the capacity of the defendant to
appreciate the criminality of his conduct [or to conform the conduct] to the requirements of law
was impaired as a result of mental illness or retardation or intoxication” despite the fact that this
impairment was “insufficient to constitute a defense to the crime.”*° The KRS also contains a
catchall provision allowing a capital jury to consider “any mitigating circumstances . . .
= H.B. 16, 2010 Gen. Assemb., Reg, Sess. (Ky. 2010).
354 ie
585 Ky, REV. STAT. ANN. § 532.025(2)(b)(2), (2)(b)(7) (West 2011).
429
otherwise authorized by law .. . "°° However, Kentucky does not require that judges instruct
capital juries that mental illness is a mitigating and not an aggravating factor, or that jurors
should not rely upon the factor of a mental disorder or disability to conclude that the defendant
represents a future danger to society.*°”
The mitigating circumstances described above distinguish evidence of a mental disorder or
defect applied as mitigation during the sentencing phase from the use of that same evidence to
establish a defense to the crime during the guilt phase of a capital trial.°® However, Kentucky
does not require trial courts to instruct jurors to distinguish between the affirmative defense of
insanity, specifically, and the defendant’ s subsequent reliance on similar evidence to demonstrate
a mental disorder or disability as a mitigating factor.
Because the Commonwealth does not require, when applicable, that jurors be instructed on any
of the three issues described in this Recommendation, Kentucky is not in compliance with
Recommendation #8.
H. Recommendation #9
Jury instructions should adequately communicate to jurors, where applicable, that
the defendant is receiving medication for a mental disorder or disability, that this
affects the defendant’s perceived demeanor, and that this should not be considered
in aggravation.”
To the best of our knowledge, the Commonwealth of Kentucky does not permit, when requested
by defense counsel, that when the defendant is receiving medication for a mental disorder or
disability, capital jurors be instructed that this affects the defendant’s perceived demeanor and
such demeanor should not be considered in aggravation.*° Accordingly, the Commonwealth is
not in compliance with Recommendation #9.
I. Recommendation #10
The jurisdiction should have in place mechanisms to ensure that, during court
proceedings, the rights of persons with mental disorders or disabilities are protected
against “waivers” that are the product of a mental disorder or disability. In
356 Ky, REV. STAT. ANN. § 532.025(2) (West 2011). Evidence offered under this provision is limited to that which
is relevant to the prescribed statutory mitigating circumstances, facts or a qualified opinion bearing on the
defendant's character, or prior record or circumstances of the offense. Id.; Stanford v. Commonwealth, 734 S.W.2d
781, 790 (Ky. 1987).
357 Hodge v. Commonwealth, 17 S.W.3d 824, 853 (Ky. 2000) (permitting the prosecutor to discuss future
dangerousness, despite not having provided advance notice of the non-statutory aggravator to the defense, where the
defense introduced the issue); Interview with DPA, supra note 247. For a more detailed discussion on jury
instructions, see Chapter Ten.
%8 Ky. REV. STAT. ANN. § 532.025(2)(b)(2), (2)(b)(7) (West 2011).
35° The Kentucky Death Penalty Assessment Team emphasizes that there are circumstances in which defense
counsel's request for an instruction on this issue could be denied and that it remains in the trial court’s discretion to
determine if and when it is appropriate for the jury to be instructed on the effect of medication on a capital
defendant's perceived demeanor.
369 See generally 1 W. COOPER & D. CETRULO, KENTUCKY INSTRUCTIONS To Juries (5th ed. 2010).
430
particular, the jurisdiction should allow a “next friend” acting on a death row
inmate's behalf to initiate or pursue available remedies to set aside the conviction or
death sentence, where the inmate wishes to forego or terminate post-conviction
proceedings but has a mental disorder or disability that significantly impairs his or
her capacity to make a rational decision.
Recommendation #10 is divided into two parts: the first, which is identical to Recommendation
#7 in the Mental Retardation Analysis Section, relates to the existence of state mechanisms that
protect against waivers resulting from an inmate’s mental disability; and the second relates to the
specific mechanism of “next friend” petitions when a death row inmate wishes to forego or
terminate post-conviction proceedings.
As discussed in the Mental Retardation Analysis Section, the Commonwealth of Kentucky has in
place some mechanisms to protect individuals with a mental disorder or disability against
waivers of Miranda rights, waivers of counsel, waivers of jury sentencing, and waivers of
presentation of mitigation at sentencing.** It is unclear whether Kentucky adequately guards
against a waiver of a trial without any condition on sentencing when a capital defendant may
suffer from a mental disorder or defect affecting his/her decision to plead guilty to a capital-
eligible offense.
Furthermore, when a death row inmate seeks to terminate post-conviction proceedings in order to
be executed, a Commonwealth post-conviction court should inquire whether the death row
inmate “had the capacity to appreciate his[/her] position and make a rational choice with respect
to [continuing or abandoning further litigation] or on the other hand [whether the inmate] is
suffering from a mental disease, disorder or defect which may substantially affect his[/her]
capacity in the premises.”*? In the single case in which a death row inmate sought to waive
state post-conviction proceedings, the post-conviction court held a competency hearing and
determined that the inmate
(1) had the capacity to appreciate his position and make a rational choice with
respect to continuing or abandoning further litigation on his behalf;
(2) was not suffering from a mental disease, disorder or defect which
substantially affects his capacity to decide to forego further legal proceedings
on his behalf;
(3) presented no evidence of any mental condition that impairs his ability or
shows a lack of capacity to appreciate his present legal situation;
(4) appreciated the legal consequences of the actions he requests; and
(5) was capable of making decisions concerning his own defense and legal
representation, °°
361 See supra notes 275-309 and accompanying text.
3 Chapman v. Commonwealth, 265 S.W.3d 156, 182 (Ky. 2007) (citing Rees v. Peyton, 384 U.S. 312, 314
(1966)). “Although Rees involved the abandonment of post-conviction proceedings and Chapman’ s request is pre-
trial, this is essentially a distinction without a difference.” Chapman, 265 S.W.3d at 180.
363 Order, Chapman v. Pub. Advocacy, No. 07-CI-01523, at *3 (Franklin Cir. Ct., Nov. 17, 2008). The Franklin
Circuit Court heard testimony from one medical expert and the death row inmate himself. Id. at *2.
431
Consequently, the circuit court found the inmate competent to waive his right to post-conviction
review and the inmate was executed four days later.** Based on this single case, we are unable
to conclude whether the Commonwealth has mechanisms in place to guard against an inmate’s
waiver of post-conviction review as a result of his/her mental disorder or disability.°°°
The Commonwealth also has not enacted any laws, nules, or regulations that allow courts to
appoint a “next friend” to initiate or pursue available remedies to set aside a conviction or death
sentence on an incompetent inmate’s behalf.°° We note, however, that in Chapman v.
Commonwealth, the death row inmate’s counsel was permitted to file a direct appeal petition on
the inmate’s behalf, which included counsel’s concerns about the inmate’s competency to waive
his legal rights and to be executed. *°”
Under federal law, a third party may have standing as a “next friend” to file a post-conviction
petition on behalf of a death-row inmate if the “next friend” can demonstrate that (1) the death
row inmate is incompetent and unable to make a rational decision as to whether to seek post-
conviction relief, and (2) that s/he is “truly dedicated to the [death-sentenced inmate's] best
interests and shares a significant relationship” with the inmate.°*™ Itis in the court’s discretion as
to whether a “next friend” may be appointed to pursue post-conviction relief on behalf of the
incompetent death row inmate. **°
Although the Commonwealth of Kentucky protects against certain waivers that are a product of a
capital defendant or death row inmate’s mental illness, there is no provision for appointment of a
56 Td. at *3,
3®5 Since the death penalty was reinstated in 1976, there have been three executions in the Commonwealth, two of
which involved death row inmates who had waived or withdrawn post-conviction review. Chapman, 265 S.W.3d at
156; Harper v. Parker, 177 F.3d 567 (6th Cir. 1999). In one case, described above, the death row inmate was
executed without filing for state or federal post-conviction review; in the other, the inmate was executed after he
exhausted his state post-conviction appeals and waived his remaining habeas corpus review in federal court.
Chapman, 265 S.W.3d at 156; Harper, 177 F.3d at 572.
368 See supra notes 170-84. In fact, in Chapman v. Commonwealth, the Kentucky Supreme Court declined to
permit amicus curiae, or “friend of the court,” to present mitigation evidence over the capital defendant's objection.
Chapman, 265 S.W.3d at 169-70. A “next friend” is not a party to an action, but is an officer of the court, specially
appearing to look after the interests of the person for whose benefit they appear. See generally Paul F. Brown, “ Next
Friends” as Enemies: Third Party Petitions for Capital Defendants Wishing to Waive Appeals, 81 J. CRIM. L. &
CRIMINOLOGY 981 (1991). The U.S. Supreme Court has stated that “‘next friend’ standing [during capital habeas
corpus proceedings] is by no means granted automatically to whomever seeks to pursue an action on behalf of
another,” instead, a “’next friend’ must provide an adequate explanation—such as inaccessibility, mental
incompetence, or other disability— why the real party in interest cannot appear on his own behalf to prosecute the
action,” and “must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate.”
Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990) (“[I]t has been further suggested that a “next friend” must have
some significant relationship with the real party in interest.”).
37 Chapman, 265 S.W.3d at 162 n.2 (“The Department of Public Advocacy then filed this [direct] appeal on [the
inmate’s] behalf.”). See also Harper, 177 F.3d at 569 (noting that DPA expressed concerns to the federal district
court about whether the inmate was competent to decide not to proceed with habeas, and presented evidence on this
issue at the subsequent competency hearing).
368 See Whitmore, 495 U.S. at 163-65; Rees v. Peyton, 384 U.S. 312, 314 (1966); Harper, 177 F.3d at 569.
309 Whitmore, 495 U.S. at 165. In fact, in Harper, the Sixth Circuit noted that when DPA filed a Motion for Stay of
Execution and Motion to Disqualify the Attorney General and Department of Corrections, DPA also noted the
possibility that DPA may file a habeas corpus or next friend petition on behalf of Harper. Harper, 177 F.3d at 569.
432
“next friend” on behalf of a petitioner who wishes to forego or terminate state post-conviction
proceedings due to a mental disorder, disease, or disability. Consequently, the Commonwealth is
only in partial compliance with Recommendation #10.
The Kentucky Death Penalty Assessment Team notes that in 2008, legislation was introduced in
the Kentucky General Assembly providing that
if a court finds that a prisoner under sentence of death who wishes to forgo or
terminate post-conviction proceedings has a mental disorder or disability that
significantly impairs his or her capacity to make a rational decision, the court
shall permit a next friend acting on the prisoner's behalf to initiate or pursue
available remedies to set aside the death sentence.°”
The Kentucky Death Penalty Assessment Team recommends adoption of such legislation.
J. Recommendation #11
The jurisdiction should stay post-conviction proceedings where a prisoner under
sentence of death has a mental disorder or disability that significantly impairs his or
her capacity to understand or communicate pertinent information, or otherwise to
assist counsel, in connection with such proceedings and the prisoner’s participation
is necessary for a fair resolution of specific claims bearing on the validity of the
conviction or death sentence. The jurisdiction should require that the prisoner’s
sentence be reduced to the sentence imposed in capital cases when execution is not
an option if there is no significant likelihood of restoring the prisoner's capacity to
participate in post-conviction proceedings in the foreseeable future.
Recommendation #11 consists of two parts: the first involves the suspension of post-conviction
proceedings due to the prisoner's mental disorder or disability; the second involves the reduction
of the prisoner's sentence due to the unlikelihood of restoring the prisoner's capacity to
participate in post-conviction proceedings.
It is unclear whether Kentucky courts require a post-conviction petitioner to have the mental
capacity to understand or communicate pertinent information, or otherwise assist counsel, in
connection with post-conviction proceedings, when the prisoner's participation is necessary for a
fair resolution of specific claims bearing on the validity of the conviction or death sentence.
Therefore, we cannot determine if such a finding would require a court to stay post-conviction
proceedings.*” For example, in Stiltner v. Commonwealth, the Kentucky Court of Appeals
contemplated the need for a prisoner to competently assist counsel during post-conviction
3 HB. 659, 2008 Gen. Assemb., Reg. Sess. 2 (Ky. 2008).
31 However, Commonwealth courts may hold a hearing to determine whether an inmate is competent and thus able
to waive or withdraw his/her post-conviction review. Order, Chapman v. Pub. Advocacy, No. 07-CI-01523
(Franklin Cir. Ct, Nov. 17, 2008). For further discussion about waiver and withdrawal of post-conviction review,
see Mental IlIness Recommendation #10. See supra notes 361-370 and accompanying text.
433
proceedings.*” However, the Commonwealth has not set out any rules or laws to govem
whether a prisoner would receive a stay of post-conviction proceedings should s/he have a
mental disorder or disability that affects his/her ability to assist counsel in connection with the
resolution of those proceedings.
The Kentucky Supreme Court has held that where a death row inmate can show that his/her
ongoing mental incompetence prevented the inmate from filing a timely post-conviction petition,
and that the incompetence was unknown or “beyond the petitioner's control and unavoidable
despite due diligence,” a court may apply the equitable tolling doctrine to the post-conviction
statute of limitations.*”? A death row inmate seeking to toll the statute of limitations has no right
to counsel unless s/he is able to demonstrate that his/her claim warrants an evidentiary
hearing.?”*
To our knowledge, the Kentucky Supreme Court has never equitably tolled the statute of
limitations applicable to post-conviction proceedings under RCr 11.42 due to a death row
inmate’s incompetence. In fact, to our knowledge, the Court has not tolled the statute of
limitations due to a petitioner's mental incompetence prior to the expiration of the statute of
limitations in any non-capital post-conviction proceeding.*” For example, in Commonwealth v.
Carneal, the petitioner presented evidence that he experienced periods of incompetence after his
conviction and before the statute of limitations imposed on post-conviction filings expired in his
case.°”° However, because the petitioner experienced “intermittent competence,” the Kentucky
3” Stilmer v. Commonwealth, No. 2007-CA-002048-MR, 2009 WL 102975, at *2 (Ky. App. Jan. 16, 2009) (“[W]e
have not located any Kentucky authority governing post[-]conviction competency evaluations.”). The Kentucky
Court of Appeals denied the petitioner’s request, but also stated that “it is reasonable to believe” that when a
prisoner seeks a competency evaluation, the prisoner would need to show “the existence of ‘specific factual matters
at issue that require the [prisoner] to competently consult with counsel.’” Id. (internal citations omitted).
33 Commonwealth v. Stacey, 177 S.W.3d 813, 817 (Ky. 2005) (citing Dunlap v. United States, 250 F.3d 1001,
1010 (6th Cir. 2001)). Also noting that “a claim of mental incompetence does not constitute a per se reason to toll a
statute of limitations” (Stacey, 177 S.W.3d at 817); Ky. R. Cri. P. 11.42(10)(a). In Stacey, the Kentucky Supreme
Court ultimately rejected the inmate’s request to equitably toll the RCr 11.42 statute of limitations for lack of
evidence to support the equitable relief. Stacey, 177 S.W.3d at 817. See also Commonwealth v. Cameal, 274
S.W.3d 420, 429 (Ky. 2005).
3™ Ky. R. Crim. P. 11.42(5). Although not required by law, in practice, the Kentucky Department of Public
Advocacy provides capital defendants with counsel for post-conviction review before the final opinion on direct
appeal is issued. Telephone Interview by Sarah Turberville with Marguerite Thomas, Manager, Post Conviction
Branch, Ky. Dep’t of Pub. Advocacy, March 18, 2010 (on file with author). The standard to obtain an evidentiary
hearing appears identical to that required for the inmate to succeed on the merits for his claim for equitable tolling:
that the inmate suffered ongoing mental incompetence and that the mental incapacity was unknown to him/her or
could not have been ascertained by the exercise of due diligence during the three-year statute of limitations.
Carneal, 274 S.W.3d at 429-30 (emphasis added).
35 Carneal, 274 S.W.3d at 429 (Ky. 2008) (non-capital case); Stacey, 177 S.W.3d at 817 (non-capital case);
Stiltner, 2009 WL 102975 at *2 (Ky. App. 2009). Notably, several pro se petitioners seeking to toll the statute of
limitations in non-capital cases have been unable to proffer sufficient evidence to be granted an evidentiary hearing,
and consequently were not entitled to be appointed counsel. See, e.g., Griffith v. Commonwealth, No. 2005-CA-
002601-MR, 2006 WL 3040846 (Ky. Ct. App. Oct. 27, 2006) (pro se); Moore v. Commonwealth, No. 2006-CA-
001469-MR, 2008 WL 162853 (Ky. Ct. App. Jan. 18, 2008) (pro se); see also Burke v. Campbell County Fiscal
Court, No.Civ.A.06-CV-191-DLB, 2006 WL 3627711 (E.D. Ky. Dec. 11, 2006) (pro se).
3% Carneal, 274 S.W.3d at 429 (emphasis added).
434
Supreme Court was “unconvinced that his condition prevented compliance with the RCr 11.42
time limitation such that equitable tolling would be appropriate.”°””
However, in 2011, the Kentucky Supreme Court held in Hallum v. Commonwealth, that an
equitable tolling remedy is not necessary because the Commonwealth has adopted a “prison
mailbox rule” which now governs the statute of limitations?” In light of Hallum, it is unclear
whether, a petitioner who has waived or withdrew his/her petition for post-conviction relief due
to a mental disorder or disability that existed prior to the expiration of the statute of limitations
may seek to interrupt the running of the statute of limitations based on the doctrine of “equitable
tolling.”
Because we have found no instance of the Commonwealth staying post-conviction proceedings
when a death row inmate is incompetent or of the Commonwealth reducing a death row inmate’s
sentence when there is no significant likelihood of restoring the inmate’s capacity to participate
in post-conviction proceedings in the foreseeable future, Kentucky is not in compliance with
Recommendation #11.
The Kentucky Death Penalty Assessment Team notes that the Kentucky General Assembly has
considered legislation specifically addressing the issues described in Recommendation #11,
which would provide that
if a court finds at any time that a prisoner under a sentence of death has a mental
disorder or disability that significantly impairs his or her capacity to understand or
communicate pertinent information, or otherwise to assist counsel, in connection
with post-conviction proceedings, and that the prisoner’s participation is
necessary for a fair resolution of specific claims bearing on the validity of the
conviction or death sentence, the court shall [stay or] suspend the proceedings. If
the court finds that there is no significant likelihood of restoring the prisoner's
capacity to participate in post-conviction proceedings in the foreseeable future, as
defined in KRS 504.060, it shall reduce the prisoner’s sentence to a sentence
imposed in capital cases when execution is not an option.**”
The Kentucky Death Penalty Assessment Team recommends adoption of such legislation.
37 Td.
3% See Hallum v. Commonwealth, No. 2009-SC-000762-DG, 2011 WL 1620593, at *2 (Ky. Apr. 21, 2011)
(holding that the statutory mailbox mule applies retroactively), overruling Robertson v. Commonwealth, 177 S.W.3d
789, 792 (Ky. 2005). See Ky. R. CRIM. P. 12.04(5) (“[I]f an inmate files a notice of appeal in a criminal case, the
notice shall be considered filed if its envelope is officially marked as having been deposited in the institution's
intemal mail system on or before the last day for filing with sufficient First Class postage prepaid.”) (adopted by
Ky. Sup. CT. ORDER 2010-09 (effective Jan. 1, 2011)). But see infra note 379 (citing Stacey, 177 S.W.3d at 813;
Carneal, 274 S.W.3d at 429).
379 See, e.g., Stacey, 177 S.W.3d at 816-17 (permitting tolling due to incompetency when petitioner is able to
present evidence that his/her “alleged mental incapacity was either unknown to him[/her] or could not have been
ascertained by him[/her] by the exercise of due diligence during the three-year limitations period of RCr
11.42(10)”); Carneal, 274 S.W.3d at 429 (same); Stiltner, 2009 WL 102975, at*2 (same). The statute of limitations
for filing post-conviction claims under RCr 11.42 was not enacted until October 1, 1994. Ky. R. Cri. P. 11.42(10).
380 1B. 659, 2008 Gen. Assemb., Reg. Sess. 3 (Ky. 2008).
435
K. Recommendation #12
The jurisdiction should provide that a death row inmate is not “competent” for
execution where the inmate, due to a mental disorder or disability, has significantly
impaired capacity to understand the nature and purpose of the punishment or to
appreciate the reason for its imposition in the inmate's own case. It should further
provide that when such a finding of incompetence is made after challenges to the
conviction’s and death sentence’s validity have been exhausted and execution has
been scheduled, the death sentence shall be reduced to the sentence imposed in
capital cases when execution is not an option.
Recommendation #12 is divided into two parts: the first pertains to the Commonwealth’s
standard for determining whether a death row inmate is competent to be executed and the second
pertains to the Commonwealth's sentencing procedures after a death row inmate has been found
incompetent to be executed. **!
Standard for Competency to be Executed**?
In order for a death row inmate to be found competent for execution under Recommendation
#12, the death row inmate must not only “understand” the nature and purpose of the punishment,
but s/he must also “appreciate” its particular application in the death row inmate’s own case—
that is, that the inmate have a rational understanding of the reasons s/he is to be executed, **?
Kentucky prohibits the execution of a death row inmate who is incompetent. If the death row
inmate does not understand (1) the fact of his/her impending execution, and (2) why s/he is to be
executed, the inmate will be declared incompetent, and his/her execution date will be suspended
until s/he is restored to competency.*
Sentencing Procedures after a Finding of Incompetency
381 The consensus of the Kentucky Assessment Team was that the Commonwealth should have the opportunity to
“restore” competency upon an initial finding of a death row inmate's ineligibility for execution due to mental
incompetence. This view is contrary to that of the ABA standard, which recommends an automatic reduction to the
sentence imposed in capital cases when execution is not an option upon an initial finding of a death row inmate’ s
incompetency for execution. See generally ABA, RECOMMENDATION 122A, 2006 Ann. Mtg. (adopted Aug. 7-8,
2006), available at http://www2.americanbar.org/sdl/Documents/2006_AM_122A.pdf (“[T]reating a condemned
prisoner, especially over his or her objection, for the purpose of enabling the state to execute the prisoner. . .
violates fundamental ethical norms of mental health professionals.”).
382 We note that the Kentucky statutes addressing this issue refer to the term “sanity” to be executed, rather than
competency to be executed. Ky. REV. STAT. ANN. §§ 431.213, 431.2135, 431.240 (West 2011).
38 Ford v. Wainwright, 477 U.S. 399, 409-10 (1986) (holding that the Eighth Amendment prohibits the execution
of an “insane” offender who is not aware of his impending execution and of the reasons for it); Panetti v.
Quarterman, 551 U.S. 930, 959-60 (2007) (A determination of competency to be executed requires an inquiry into
whether the death row inmate has a rational understanding of the reasons s/he will be executed.) (emphasis added).
38 Ky. REV. STAT. ANN. § 431.240(2) (West 2011).
38 Ky, REV. STAT. ANN. §§ 431.213(2), 431.2135(4), 431.240(2) (West 2011). The Kentucky Supreme Court has
held that the Eighth Amendment does not preclude the execution of an inmate with a mental illness that does not rise
to the level of insanity. See Johnson v. Commonwealth, No. 2006-SC-000548-MR, 2008 WL 4270731, at *6 (Ky.
Sept. 18, 2008).
436
In cases in which a death row inmate is found incompetent and therefore currently ineligible for
execution, the inmate will be transferred to the Kentucky Correctional Psychiatric Center until
s/he is restored to competency.’ The treating psychiatrist is required to report at least once
monthly, to both the circuit court and the inmate’s counsel, on the inmate’s progress and whether
there is a substantial probability that s/he will become competent.*®” Upon receipt of a report
that the inmate has become competent, the circuit court will schedule a mental health evaluation
and hearing to determine whether the inmate is legally competent to be executed. If the court
determines the inmate competent, the Governor will reschedule the execution and the warden
will carry out the sentence on the date scheduled.**? Kentucky law does not require that a death
row inmate who is found incompetent to be executed to have his/her sentence reduced to the
sentence imposed in capital cases when execution is not an option.
Although statutory procedures for challenging competency to be executed are in place, we are
unaware of any party that has challenged a death row inmate’s competency to be executed since
the reenactment of Kentucky’s death penalty in 1976.°°
Based on the above information, we are unable to determine if the Commonwealth is in
compliance with Recommendation #12.
L. Recommendation #13
Jurisdictions should develop and disseminate— to police officers, attorneys, judges,
and other court and prison officials— models of best practices on ways to protect
mentally ill individuals within the criminal justice system. In developing these
models, jurisdictions should enlist the assistance of organizations devoted to
protecting the rights of mentally ill citizens.
In addition to the trainings offered to, and at times required of, actors within the criminal justice
system,*”’ entities devoted to protecting mentally disabled persons throughout Kentucky also
work collaboratively to develop resources and best practice methods for implementation across
the Commonwealth.
%° Ky. REV. STAT. ANN. § 431.2135(4) (West 2011). See also Ky. REV. STAT. ANN. § 431.240(2) (West 2011)
(“If the condemned person is insane, as defined in KRS 431.213 . . . on the day designated for the execution, the
execution shall be suspended until the condemned is restored to sanity ....”). A death row inmate in the
Commonwealth may not raise the issue of competency to be executed until s/he has exhausted all state and federal
remedies for challenging the validity and constitutionality of his/her conviction and sentence and the Governor of
Kentucky has set an execution date. Ky. REV. STAT. ANN. § 431.213, 431.2135(1) (West 2011).
387 Ky. Rev. STAT. ANN. § 431.2135(4) (West 2011) (requiring periodic review of the inmate's sanity). The
treating psychiatrist is also required to report immediately upon a psychiatric determination of sanity. Id.
%8 Ky. REV. STAT. ANN. § 431.2135(5) (West 2011). See also Ky. REV. STAT. ANN. § 431.240(2) (West 2011)
(requiring any hearings authorized under authority of this section to be conduced in accordance with KRS Chapter
13B).
%° Ky, REV. STAT. ANN. § 431.240(4) (West 2011).
Ky. REV. STAT. ANN, § 431.2135 (West 2011).
3! Described supra notes 216-234 and accompanying text.
437
All law enforcement (especially Crisis Intervention Team-trained officers) and correctional
personnel who receive training on mental illness are trained by experts from a number of
government and private entities who specialize in the identification and treatment of mental
illness.*°? The Kentucky Department of Behavioral Health, Developmental and Intellectual
Disabilities (DBHDID), a along with various other Commonwealth entities, have issued
educational documents and trainings for correctional officers and jailers on how to recognize and
interact with persons with mental illness, mental retardation, and other developmental
disabilities.°* In addition, every inmate entering into a detention facility must be screened for
“mental health risk issues, including mental illness, suicide, mental retardation, and acquired
brain injury.”°°°
DBHDID also funds services and programs for Commonwealth residents with mental illness,
mental retardation, and other developmental disabilities, such as the Regional Community
Mental Health Program, which “provides a comprehensive range of accessible and coordinated
mental health services, including direct or indirect mental health” through Kentucky's fourteen
regional mental health and mental retardation boards.*°° The Commonwealth has also published
Best Practice Implementation in Kentucky’s Public Mental Health & Mental Retardation System,
which is a culmination of a statewide assessment of evidence-based practices implemented
throughout Kentucky’s public mental health and mental retardation system and available to
Commonwealth goverment officials, employers, workers, and general public.**”
Based on the best practices described above, the Commonwealth of Kentucky is in compliance
with Recommendation #13.
3 Interview with Lt. Kevin DeSpain, supra note 227; see supra notes 223, 294-295 and accompanying text
33 The DBHDID was known at the time as the Kentucky Department for Mental Health and Mental Retardation
Services. Ky. Exec. Order No. 2009-541 (June 12, 2009).
3 See, e.g., Ky. DEP’T OF BEHAVIORAL HEALTH, DEVELOPMENTAL & INTELLECTUAL DISABILITIES, INSTRUCTOR
MATERIALS, BEHAVIORAL HEALTH NEEDS IN LOCAL JAILS: A CROSS TRAINING PROGRAM, available at
http://www.mhmr.ky.gov/mhsas/files/jailer% 20training.pdf. For example, the DBHDID collaborated with the
Kentucky Chapter of the National Alliance of Mental Illness, the Kentucky Department of Corrections and the
Kentucky Commission on the Services and Supports for Individuals with Mental Illness, Alcohol and other Drug
Abuse Disorders, and Dual Diagnosis to create training materials for jail personnel. Id. at 1. The training included
information on how to recognize mental illness or retardation during mandatory screenings of incoming offenders.
Id. at 8, 14, 58-59.
8 Ky. REV. STAT. ANN. § 441.048 (West 2011).
3% Ky, REV. STAT. ANN. §§ 210.370-210.460 (West 2011); Community Mental Health Centers, Ky. CABINET FOR
HEALTH & FAMILY SERV., http://chfs.ky.gov/dms/Community+Mental+Health+Centers.htm (last visited July 27,
2011) (“Regional Boards are private, nonprofit organizations established to serve residents of a designated
multicounty region”).
°°” Louis KurTZ & VESTENA ROBBINS, TRAINING, RESEARCH, EVALUATION & DISSEMINATION DIVISION OF
ADMINISTRATION & FINANCIAL MANAGEMENT, DEP’T FOR MENTAL HEALTH & MENTAL RETARDATION SERVICES,
BEST PRACTICE IMPLEMENTATION IN KENTUCKY'S PUBLIC MENTAL HEALTH & MENTAL RETARDATION SYSTEM
(Mar. 2006), available at http://mhmr.ky.gov/mhsas/files/C MHC % 20Best% 20Practice% 20Report.pdf.
438
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Kentucky Proseautor Conrespondence
Turberville, Sarah
From: Turberville, Sarah
Sent: Friday, May 28, 2010 5:37 PM
To: Graham, Janet (KYOAG)
Ce: Martin Johnstone; Michael Mannheimer; Linda S Ewald; Mayton, Dana (KYOAG)
Subject: RE: June 15 or 16 - Assessment of the Kentucky Death Penalty
Follow Up Flag: Follow up
Flag Status: Red
Attachments: Prosecutor Survey 5-1-10.doc
Ms. Graham,
Thank you very much for your response below. We welcome the opportunity to meet with the
members of the Prosecutors’ Advisory Council (PAC). Now that we have a possible date, | will check
availability on our end. And | understand that you are very busy, particularly given the budget
constraints facing the Commonwealth, so if there is someone else in your office with whom we should
be communicating, please just let me know.
In the interim, | wonder if you (or if you could point us to someone who) could be of assistance in our
data collection efforts. | do not want our inability to meet in June to foreclose the possibility of the
Assessment Team's reaching out to prosecutors across the Commonwealth. As you may know, a few
months ago we sent letters of introduction to all the elected Commonwealth Attorneys in
the Commonwealth to explain the assessment process. We also stated that we would follow up with a
questionnaire about each office’s policies, procedures, and practices in handling capital cases. This
questionnaire is similar to what we have asked of defense attorneys, particularly DPA, about their
practices in handling capital cases from trial through clemency. A draft copy of the questionnaire is
attached.
First, do you have any suggestions for how we can go about distributing this questionnaire electronically
to the Commonwealth Attorney of each judicial district? We would like to make it as easy as possible
for the Commonwealth Attorneys to respond. And while we could send it via US Mail, we suspect we
are also much more likely to receive responses if recipients are able to fill in their responses and provide
any additional comments electronically. However, we have not been able to find email addresses for all
Commonwealth Attorneys. Second, we would welcome the Office of the Attorney General’s support in
the effort to encourage responses to the questionnaire. If you find the questionnaire unobjectionable,
would you be willing to let the Commonwealth Attorneys know that you've reviewed it and that the
questionnaire will be coming their way? The purpose of the Assessment Report on the Kentucky Death
Penalty is to explain how the Commonwealth is successfully ensuring fairness and accuracy in capital
cases, as well as to uncover areas for improvement. Given the number of Commonwealth Attorneys in
the state, completion of the questionnaire is the primary way that each could have input into the
Assessment Report’s analysis.
Thank you very much for your time and consideration. And have a good holiday!
Sincerely,
Sarah
Defending Liberty
Pursuing Justice
AMERICAN BAR ASSOCIATION
DRAFT
Below is a list of questions related to the provision of prosecutorial services in capital cases in the Commonwealth of
Kentucky. You may email your responses to assessment@staff.abanet.org or via mail to: Sarah Turberville, American
Bar Association ~ 10" Floor, 740 15" Street NW, Washington DC, 20005.
To the extent that you can provide a detailed response to the questions below, please do so. You may also
attach additional pages and feel free to provide any materials you feel appropriate to elaborate on your
answers below.
Name of person completing questionnaire:
Judicial District:
Date:
General Information about the Death Penalty in your Judicial District:
1. In how many cases has the Commonwealth Attorney in your Judicial District filed a notice to seek the
death penalty since capital punishment was reinstated in Kentucky (December 22, 1976)?
If you are unable to retrieve this information, please tell us the number of cases in which you know the
death penalty was sought in your Judicial District.
2. How many capital cases are currently pending within your Judicial District?
3. Please list the dates, defendants’ names, and disposition of all capitally-charged cases in your Judicial
District since you become Commonwealth Attorney.
Training and Qualifications of Assistant Commonwealth Attorneys who Handle Capital Cases:
1. How do you determine which prosecutors in your office handle capital cases? Please describe any
necessary minimum qualifications.
2. Are there policies, practices, or procedures governing the workloads of prosecutors in your office who
handle capital cases? Please describe these policies, practices, or procedures.
3. Does your office receive funding specifically designated for capital cases?
a. Ifyes,
1, How much funding has your office received that is specifically designated for capital cases.
each year since you became Commonwealth Attorney?
2. What are the sources of that funding?
b. Ifno, how does your office allocate funds for capital cases?
4. What resources does your office utilize to train prosecutors to handle capital cases?
a. Do you feel these resources are adequate? Why or why not?
b. What kinds of capital training programs are offered to your attorneys? (You may provide a list
of mandatory and voluntary training programs attended by attorneys who prosecute capital
cases in your District).
Are Assistant Commonwealth Attomeys who handle capital cases required to attend these
training programs?
Notice of Intent to Seek the Death Penalty
1. Please describe your policies, practices, or procedures for determining whether to file a notice of intent
to seek the death penalty.
a. At what point in the case do you generally file the notice of intent to seek the death penalty?
2. Please describe your policies, practices, or procedures for withdrawing a notice of intent to seek the
death penalty?
a. Ifpossible, provide the names and dates of the cases in which you elected to withdraw a notice
of intent to seek the death penalty since you became Commonwealth Attomey and provide an
explanation as to why.
3. Does your office require the presence of physical evidence linking the defendant to the offense in order
to file a notice of intent to seek the death penalty?
Has your office filed a notice of intent to seek the death penalty in cases without physical evidence
linking the defendant to the offense? What kind evidence was available in these cases and what was the
outcome (i.e. conviction and sentence) in these cases?
Plea Bargaining
1, What policies, practices, or procedures does your office utilize to determine whether to offer a plea
bargain in capital cases?
a. What factors do you consider when deciding to offer a plea bargain in a capital-eligible case?
2. Are there any circumstances in which your office prohibits plea bargains?
3. In your Judicial District, how many plea bargains were offered in capital cases and how many were
accepted since December 22, 1976 (when Kentucky reinstated capital punishment); or, if you do not
know, since you became the Judicial District’s Commonwealth Attorney?
Discovery
1. Please describe your office’s policies, practices, or procedure on discovery by the defense in capital
trials,
a. How does your office identify and disclose evidence favorable to the defense?
b. Do you provide all prior statements of witnesses to the defense? If so, how long before trial do
you do so?
2. How do you ensure that the prosecutors and other personnel under their direction (i.e. police, experts,
etc.) are meeting their discovery obligations?
3. Explain your office’s policies, practices, or procedures on providing discovery in capital post-conviction
cases.
a. What kind of discovery do you provide to the defense in capital post-conviction cases?
b. Do you require defense counsel to request specific discovery or do you accept a general
discovery request in capital post-conviction cases?
Are there any aspects of the capital punishment system in Kentucky that you believe the Assessment
Team should focus on?
We also welcome any additional comments from you on Kentucky’s capital punishment system and/or
any feedback you may have.
COMMONWEALTH OF KENTUCKY
OFFICE OF THE ATTORNEY GENERAL
CaPrro. BUILDING, SUITE 118
ONWAY
ooo cencnas 700 CAPITAL AVENUE
Arronnsy FRANKFORT, KENTUCKY 40601
(502) 696-5300
July 15, 2010 FAX: (502) 564-2894
Sarah E. Turberville, Esq.
Project Director
Death Penalty Moratorium Implementation Project
American Bar Association
740 15th Street, N.W.
Washington D.C. 20005
Dear Ms. Turberville:
Thank you for your correspondence regarding the ABA Assessment on Kentucky Death
Penalty. As part of my duties as Executive Director of the Prosecutors Advisory Council, I have
informed the Council regarding this Assessment. As you may be aware, the Prosecutors
Advisory Council is the statutory body that deals with the administration of the Unified
Prosecutorial System, and the Attorney General, by statute, is Chairman of the Prosecutors
Advisory Council.
As noted in your correspondence and recent telephone conversations, you requested that I
circulate a series of questions prepared by the ABA to Kentucky prosecutors. In order to
properly address your request, this matter was taken up by the Prosecutors Advisory Council at
its June meeting. Following a discussion at the June meeting, which included a discussion
regarding pending litigation in capital cases, the Prosecutors Advisory Council voted: 1 to
address the ABA study as the representative body of the Commonwealth’s prosecutors; 2. not to
circulate the study to the Commonwealth’s prosecutors; and 3. not to provide responses to the
survey questions. The Council made this decision, inter alia, because of the existence of
pending litigation in capital cases which is currently being conducted by Kentucky prosecutors in
and the Office of the Attorney General in Kentucky’s trial and appellate courts. Should you need
an example of the type of litigation at issue, please review litigation in Commonwealth v. Marion
Parker, Case No. 09-CR-00188-001, Kenton Circuit Court, in which a subpoena was issued by
the Department of Public Advocacy for information and testimony which is strikingly similar to
that requested by the ABA.
AN EQUAL OPPORTUNITY EMPLOYER M/F/D
8
Your email correspondence indicated that members of the ABA study group also wished
to meet with some Kentucky prosecutors and/or members of the Prosecutors Advisory Council
regarding the ABA assessment. To my knowledge, no firm date and time has been given to me
for the proposed meeting. Should you still wish to conduct this meeting, please let me know
possible dates and times, and I will attempt to facilitate this meeting.
Sincerely,
pt a AL
Janet M. Graham
Assistant Deputy Attorney General
Exec. Dir. Office of Prosecutors Advisory Council
Ce: Prosecutors Advisory Council
Turberville, Sarah
From: — Turberville, Sarah
Sent: Thursday, July 15, 2010 1:57 PM
To: Graham, Janet (KYOAG)
Ce: Chris Cohron; Edwards, Jeff (MRSCO); G.L. Ovey; Gina Carey; Hans, Jennifer (KYOAG); John Estill;
Margaret Daniel; Melissa Quillen; Mike Foster; Rob Sanders; Linda S Ewald; Michael Mannheimer
Subject: RE: see attached letter
Dear Mrs. Graham,
Thank you for your response. | do appreciate that you have seriously considered our request for your
input. Our team has a call next week in which we can determine possible dates to meet with you (and
other PAC members) and | welcome your offer to help facilitate such a meeting.
While we can respond to the letter from the PAC more fully after our call next week, | must clarify one
issue immediately: In the event that there is any confusion on this matter, the Assessments Project has
had no involvement with and no connection to any litigation involving the death penalty in Kentucky.
The survey questions we asked you to review were drafted in an effort to determine if the
Commonwealth is in compliance with various ABA benchmarks relative to prosecutors’ treatment of
capital cases. The complete list of ABA benchmarks is on our website, available to any individual or
organization.
We have sought to be as open and inclusive as possible in our data collection efforts. If there is any
other information you require to determine the purpose or methodology of the Project, please let us
know. Thank you again for your consideration and we will be in touch soon.
Sincerely,
Sarah
Sarah E, Turherville, Esq.
Proyect Director
Deaih Penalty Mi
Amerean Bat Asi
740 18th Street NI
Implementation Project
From: Graham, Janet (KYOAG) [mailto:janet.graham@ag.ky.gov]
Sent: Thursday, July 15, 2010 11:17 AM
To: Turberville, Sarah
Ce: Chris Cohron; Edwards, Jeff (MRSCO); G.L. Ovey; Gina Carey; Graham, Janet (KYOAG); Hans,
Jennifer (KYOAG); John Estill; Margaret Daniel; Melissa Quillen; Mike Foster; Rob Sanders
Subject: see attached letter
Please see attached letter sent on behalf of the Prosecutors Advisory Council. Thanks.
Janet M. Graham
Assistant Deputy Attorney General
Kentucky Attorney General's Office
Turberville, Sarah
From: Graham, Janet (KYOAG) [janet.graham@ag.ky.gov]
Sent: Monday, November 22, 2010 5:02 PM
To: Turberville, Sarah
Ce: Linda S Ewald; Michael Mannheimer
Subject: RE: November meeting?
Follow Up Flag: Follow up
Flag Status: Red
Ms. Turberville, | was not sure if | had provided you with a response to your meeting request. The
Prosecutors Advisory Council reexamined this issue and determined that the same issues present in the
Kenton County subpoena will no doubt become issues that are propounded upon appeal. Our office is
statutorily designated to handle all cases involving felony appeals. Therefore, we must respectfully
decline the request for a meeting. Thank you.
Janet M. Graham
Assistant Deputy Attorney General
Kentucky Attorney General's Office
700 Capitol Avenue, Suite 118
Frankfort, KY 40601
Phone (502) 696-5300
Fax (502) 564-2894
IOTICE OF
This message is intended only for the use of the individual or entity to which it is addressed and may contain
confidential information that is legally privileged and exempt from disclosure under applicable law. If the reader of
this message is not the intended recipient, you are notified that any dissemination, distribution or copying of this
communication is strictly prohibited. If you have received this communication in error, please notify this office by
telephone and return this message to the Office of the Attorney General immediately. Thank you.
Under Kentucky Rule of Evidence 503, this communication is confidential and not intended to be disclosed to third
persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to
or on behalf of the Office of the Attorney General. .
From: Turberville, Sarah [mailto:turbervs@staff.abanet.org]
Sent: Tuesday, October 05, 2010 7:39 PM
To: Graham, Janet (KYOAG)
Cc: Linda S Ewald; Michael Mannheimer
Subject: November meeting?
Dear Ms. Graham,
The Kentucky Assessment Team on the Death Penalty will be meeting in November in Kentucky. While |
am unaware of the current status of the litigation described below, | thought it prudent to attempt to
seize the opportunity presented by our November schedule and wonder if there may be possible to
meet with you and/or members of the Prosecutors Advisory Council on November 10 or 12 to discuss
prosecutors’ policies and practices in capital cases. | reiterate that lethal injection is not within the
scope of the Team’s inquiry.
Many thanks for your consideration.
Sincerely,
Sarah Turberville
Sarah E. Turborville, Esq.
Project Director
Death Penalty Moratorium Implementation Project
Amencan Bar Association
740 15th Street NW
Washington DC 20005,
1. 202/662-1595
1862
From: Graham, Janet (KYOAG) [mailto:janet.graham@ag.ky.gov]
Sent: Monday, September 20, 2010 11:31 AM
To: Turberville, Sarah
Ce: ctcohron@kyprosecutors.com; Edwards, Jeff (MRSCO); G.L. Ovey; John Estill; Mike Foster; Rob Sanders;
Mayton, Dana (KYOAG); Ray Larson; R. David Stengel; Harry Rothgerber
Subject: RE: see attached letter
Ms. Turberville, you and | have been corresponding back and forth regarding the ABA Death Penalty Moratorium
Implementation Project and your request for a meeting regarding same. Since we began this correspondence,
Governor Steve Beshear has signed a death warrant for Gregory Wilson, who was sentenced to death October
31, 1988 in Kenton County for kidnapping and murdering Debbie Pooley, whom Wilson also raped. The
execution was initially scheduled for September 16", 2010, and the Office of the Attorney General and the
Kentucky Department of Corrections have both filed pleadings in the Kentucky Supreme Court regarding this
case. We are awaiting the filing of a response by the Louisville Metro Public Defender’s Office so that the
Kentucky Supreme Court can issue a ruling on this matter. Because of this active and ongoing litigation, we do
not believe that it would be prudent to schedule a meeting until this ongoing litigation is resolved. Thank you.
Janet M. Graham
Assistant Deputy Attorney General
Kentucky Attorney General's Office
700 Capitol Avenue, Suite 118
Frankfort, KY 40601
Phone (502) 696-5300
Fax (502) 564-2894
NOTICE OF CONFIDENTIALITY
This message is intended only for the use of the individual or entity to which it is addressed and may contain confidential
information that is legally privileged and exempt from disclosure under applicable law. If the reader of this message is not
the intended recipient, you are notified that any dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify this office by telephone and retum this message
to the Office of the Attorney General immediately. Thank you,
Under Kentucky Rule of Evidence 503, this communication is confidential and not intended to be disclosed to
third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal
services to or on behalf of the Office of the Attorney General.
Kentucky Clemency Materials
Defending Liberty
Pursuing Justice
2010-2011
KENTUCKY ASSESSMENT TEAM
MEMBERS
Linda Ewald, Co-Chair
University of Louisville
Louis D. Brandeis School of Law
Louisville, KY
Michael J. Z. Mannheimer, Co-Chair
Northern Kentucky University
Salmon P. Chase College of Law
Highland Heights, KY
Hon. Michael Bowling
Steptoe & Johnson PLLC
Middlesboro, KY
Don Cetrulo
Knox & Cetrulo PLLC
Lexington, KY
Allison Connelly
University of Kentucky
College of Law
Lexington, KY
Hon. Martin E. Johnstone
Kentucky Supreme Court (Retired)
Prospect, KY
Hon. James Keller
Kentucky Supreme Court (Retired)
Lexington, KY
Frank Hampton Moore, Jr.
Cole & Moore, P.S.C.
Bowling Green, KY
Marcia Milby Ridings
Hamm, Milby & Ridings
London, KY
Hon. Gordie Shaw
‘Commonwealth's Attorney
Fourteenth Judicial Circuit
Versailles, KY
PROJECT STAFF
Washington, DC
Sarah E. Turberville
Project Director
Kirstin Ramsay
Senior Staff Attorney
Mark Pickett
Project Attorney
Paula Shapiro
Project Attorney
AMERICAN BAR ASSOCIATION Kentucky Assessment Team
on the Death Penalty
740 15th Street, NW
Washington, DC 20005-1022
Tel.: 202/662-1030
Fax: 202/662-1031
April 6, 2011
Governor Steve Beshear
Office of the Governor
700 Capitol Avenue, Suite 100
Frankfort, Kentucky 40601
Dear Govemor Beshear:
We write to follow up on the letter submitted to you in January 2010 explaining the
American Bar Association's Assessment on the Kentucky Death Penalty. As we
described to you last year, the Assessment covers several components of the
administration of the death penalty in the Commonwealth, from arrest to execution. One
of these areas is the clemency process in death penalty cases in which the Governor,
pursuant to Section 77 of the Kentucky Constitution, plays a most critical role.
In order to gain an accurate and comprehensive understanding of the clemency process
in Kentucky, we have prepared a series of questions for the Office of the Governor,
which is attached to this letter. We would sincerely appreciate your cooperation in
providing responses to the attached questionnaire. Should you prefer to respond to the
questions electronically, please do not hesitate to contact us at the phone numbers or
email addresses listed at the end of this letter.
As it has been some time since our last correspondence, we would like to remind you
that the Kentucky assessment is currently being conducted by a state-based assessment
team that includes:
e Ms. Linda S. Ewald, Co-Chair, Professor of Law, Louis D. Brandeis
School of Law
¢ Michael J.Z. Mannheimer, Co-Chair, Professor of Law, Salmon P.
Chase College of Law
¢ Honorable Michael Bowling, Steptoe & Johnson PLLC
¢ Don Cetrulo, Knox & Cetrulo PLLC
« Allison Connelly, Director, Legal Clinic, University of Kentucky
College of Law
¢ Honorable Martin E. Johnstone, Kentucky Supreme Court (Retired)
« Honorable Gordie Shaw, Commonwealth's Attorney, 14" Judicial Circuit,
Bourbon, Scott, Woodford
While we are diligently accumulating information about statutes, cases and rules that govern the
death penalty process in Kentucky, the experiences and practices of individuals within the
Kentucky legal system are critical elements to our examination. Should you have any questions
or comments about the attached questionnaire, please contact Assessment Team co-chairs
Michael Mannheimer (859-572-5862; mannheimem1@nku.edu) or Linda Ewald (502-852-7362;
lsewald@louisville.edu); or Project Staff Director Sarah Turberville (202-662-1595;
sarah.turberville@ americanbar.org).
Thank you again for your time and consideration.
Sincerely,
Linda S. Ewald, Co-Chair Michael J. Z. Mannheimer, Co-Chair
Kentucky Assessment Team Kentucky Assessment Team
Defending Liberty
Pursuing Justice
AMERICAN BAR ASSOCIATION
Below is a series of questions related to the provision of clemency in capital cases in the
Commonwealth of Kentucky. Please answer each question as thoroughly and accurately as possible,
attaching additional pages if necessary. If you prefer an electronic copy of this survey please email or
call Project Director Sarah Turberville at sarah.turberville@ americanbar.org or 202-662-1595. You
may also mail your responses to: Sarah Turberville, American Bar Association - 9" Floor No. 950,
740 15" Street NW, Washington DC, 20005.
Date, 7/7/11
The Governor’s Clemency Powers and Authority:
1. Pursuant to Section 77 of the Kentucky Constitution, the Governor possesses the sole authority
to consider and grant clemency petitions. Please describe how the Govemor makes clemency
decisions in death penalty cases.
Governor Beshear has received no clemency petitions in death penalty cases nor has he
rendered any decisions concerning death penalty clemency petitions during his term as
Governor. Section 77 of the Kentucky Constitution grants the Governor full discretion in
relation to clemency issues. He may investigate any and all matters related to a clemency
petition and determine the scope of that investigation.
* Does the Governor personally review the clemency petition and any and all supporting
documents? He has discretion to do so.
* Does the Govemor independently investigate the petitioner (inmate) and his/her case
beyond that which is contained in the clemency petition? He has discretion to do so.
* Does the Governor interview and/or meet with the inmate and/or the inmate’s defense
counsel? (If yes, please answer the Section entitled, Clemency Petitions and
Clemency Interviews, Meetings, and/or Hearings, below). He has discretion to do
sO.
* Does the Governor discuss the case with the inmate’s family or other individuals who
support a grant of clemency on behalf of the inmate? He has discretion to do so.
* Does the Governor discuss the case with the victim’s family and friends? He has
discretion to do so.
* Does the Govemor discuss the case with the prosecutor and/or defense attorneys? He
has discretion to do so. In addition, written statements, documents and other supporting
materials concerning the parties’ respective positions may be submitted to the Governor
for review and consideration.
2. Since your state reenacted the death penalty, how many clemency petitions in death penalty
cases have been filed? Governor Beshear has received no clemency petitions since taking
office. To obtain information concerning the number of clemency petitions filed in death
penalty cases with the Office of the Governor since the death penalty was reenacted in this
state, please contact the Department of Libraries and Archives, 300 Coffee Tree Road,
Frankfort, Ky 40601.
3. How many clemency petitions in death penalty cases, whether its pardon, reprieve, or
commutation have you received since you became Governor? None
4. Please provide a copy of each clemency petition filed with the Governor's Office since 1976,
where available. If unavailable, please inform the Assessment Team where it may obtain a
copy of the petition. To obtain information concerning the number of clemency petitions filed
in death penalty cases with the Office of the Governor since the death penalty was reenacted in
this state, please contact the Department of Libraries and Archives, 300 Coffee Tree Road,
Frankfort, Ky 40601.
Clemency Petitions and Clemency Interviews, Meetings, and/or Hearings:
1. Please identify and explain all laws, rules, procedures, standards, and guidelines on an
individual’s eligibility to file a clemency petition in a death penalty case. Kentucky does not
have any laws, rules, procedures, standards or guidelines concerning eligibility to file clemency
petitions in death penalty cases. However, under KRS 439.450, the Governor may ask the
Parole Board to “investigate and report to him with respect to any case of pardon, commutation
of sentence, reprieve of fine or forfeiture.”
2. Please identify any filing deadlines for clemency petitions in death penalty cases and the
relevant laws, rules, procedures, standards, and guidelines. None
3. Are death penalty clemency petitioners guaranteed interviews, meetings, and/or hearings on the
merits of their petitions? In Kentucky, no clemency procedures are mandated. “Section 77 of
the Kentucky Constitution grants the Govermor the power to remit fines and forfeitures,
commute sentences, grant reprieves and pardons. There exist only two constitutionally
mandated requirements under Section 77: that the movant file an application for clemency with
the Governor; and that the Governor file with each application a statement of reasons for his
decision. No other constitutional provision or statute establishes specific procedures to be
followed or imposes standards or criteria for the clemency decision. In short, the decision to
grant clemency is left to the unfettered discretion of the Governor.” Baze vs. Thompson 302
SW 3d 57 (KY 2010).
If not, please state any instances where a Kentucky Governor has granted an interview,
meeting, and/or hearing, since reinstatement of the death penalty, despite the fact that it
is not required. This information is not known. However, to obtain this information, if
it exists, please contact the Department of Libraries and Archives, 300 Coffee Tree
Road, Frankfort, Ky 40601.
How far in advance are clemency petitioners notified of their interview, meeting, and/or
hearing? N/A
Where are the interviews, meetings, and/or hearings conducted? N/A
Are the hearings open to the public? N/A.
Who conducts the interview, meeting, and/or hearing? N/A
What is the structure of the interview, meeting, and/or hearing? N/A
i. What is the role of the inmate’s counsel? Is counsel for the inmate present?
ii. Can the clemency petitioner and/or his/her counsel make a statement?
iii. Can the clemency petitioner and/or his/her counsel present evidence, including
live witness testimony, in support of the petition?
iv. Can the clemency petitioner and/or his/her counsel cross-examine witnesses?
How many death penalty clemency interviews or hearings have been held since 1976,
when Kentucky reenacted the death penalty? This information is not known. However,
to obtain this information, if it exists, please contact the Department of Libraries and
Archives, 300 Coffee Tree Road, Frankfort, Ky 40601.
The Governor’s Scope of Review of Clemency Petitions
1. Please identify and explain any laws, rules, regulations, procedures, standards, guidelines, internal
policies on the recommended scope of review that are to be followed when assessing death penalty
clemency decisions. For example, does the Governor consider:
patterns of racial or geographic disparity in carrying out the death penalty?
age at the time of the offense?
mental retardation, mental illness, or competency to be executed issues?
evidence of the inmate’s innocence not raised at trial?
lingering doubts regarding the inmate’ s conviction/guilt?
all mitigating evidence, regardless of whether it was raised at trial?
the petitioner’ s possible rehabilitation and performance while on death row?
Kentucky does not have any laws, rules, procedures, standards or guidelines or internal policies
concerning eligibility to file clemency petitions in death penalty cases or the scope of any review of
clemency petitions. However, under KRS 439.450, the Governor may ask the Parole Board to
“investigate and report to him with respect to any case of pardon, commutation of sentence,
reprieve of fine or forfeiture.”
Specifically, does the Governor consider:
a. Claims that were not necessarily previously litigated on the merits? With or without the
existence of new evidence? He may consider any factors he determines to be relevant
to his decision.
b. Claims that were barred in court proceedings due to procedural default, non-
retroactivity, abuse of writ, statute of limitations, or similar doctrines? He may consider
any factors he determines to be relevant to his decision.
c. Constitutional claims whose merits the federal courts did not reach because they gave
deference to possibly erroneous but not “unreasonable” state court decisions? He may
consider any factors he determines to be relevant to his decision.
Section 77 of the Kentucky Constitution states that the Governor “shall have power to... commute
sentences, grant reprieves and pardons, except in case of impeachment, and he shall file with each
application therefore a statement of the reasons for his decision thereon, which application and
statement shall always be open to public inspection.”’ Please provide a copy of the clemency
decision for each petition for clemency received by the Kentucky Governor in a death penalty case
since 1976.
This information is not known. However, to obtain this information, if it exists, please
contact the Department of Libraries and Archives, 300 Coffee Tree Road, Frankfort, Ky
40601.
Clemency Petitions and Documentation Included:
1. Please identify and explain all laws, rules, procedures, standards, guidelines, and public
policies regarding the types of documents that should be provided to the Govemor to assist in
assessing the death penalty clemency petition. Kentucky does not have any laws, mules,
procedures, standards or guidelines concerning eligibility to file clemency petitions in death
penalty cases or the types of documents that should be submitted for consideration.
2. Please include a copy of the application or petition required, if any, of death row inmates
seeking clemency. See Attached Application For Gubematorial Pardon And/Or Commutation
Of Sentence.
1
Ky. Const. § 77.
3
In addition to the application, what type of documents must be provided to the Governor's
Office? Please See Attached A pplication For Gubernatorial Pardon And/Or Commutation Of
Sentence.
4. What documents, if any, cannot be provided to the Govemor with a clemency application?
Please See A ttached A pplication For Gubernatorial Pardon And/Or Commutation Of Sentence.
The Governor’s Final Decision and its Publication:
1.
2i
Are there any time limits on the Govemor’s clemency determination? No
How long does the Governor typically take when making a final clemency determination? It's
completely discretionary
How long after submitting the petition does the clemency petitioner typically hear about the
decision on his/her petition? It’s completely discretionary.
Section 77 of the Kentucky Constitution requires the Governor to file a statement of reasons for
his decision in each clemency decision. Please explain the procedures the Governor follows
when granting or denying a petition for clemency in a death penalty case.
a
How is the death row inmate and/or his counsel notified of the Governor's decision?
How are the Attorney General, Commonwealth Attorneys, and Department of
Corrections officials notified? The parties are initially telephoned immediately and told
of the Governor's decision, while a copy of the Governor's written determination is
being filed with the Kentucky Secretary of State. Filed stamped copies of the
Governor's written determination are thereafter mailed to the other parties referenced.
Does the Governor file the clemency petition and a statement of reasons for every grant
of clemency in a death penalty case? If yes, where is this filed and published? Yes, and
itis filed with the Kentucky Secretary of State.
Does the Governor file the clemency petition and a statement of reasons for every grant
of clemency in non-capital criminal or civil cases? If yes, where is this filed and
published? If not, why not? Yes and his decision is filed with the Kentucky Secretary
of State.
Does the Governor file the clemency petition and a statement of reasons for every
denial of clemency in a death penalty case? If yes, where is this filed and published? If
not, why not? Yes and his decision is filed with the Kentucky Secretary of State.
Does the Governor file the clemency petition and a statement of reasons for every
denial of clemency in non-capital criminal or civil cases? If yes, where is this filed and
published? If not, why not? Yes and his decision is filed with the Kentucky Secretary
of State.
5. Where are past clemency petitions and decisions made available to the public, pursuant to
Section 77 of the Constitution? The Kentucky Secretary of State and the Department of
Libraries and Archives.
Clemency and the Kentucky Parole Board:
1. Since Kentucky reinstated the death penalty in 1976, has the Govemor ever authorized the
Kentucky Parole Board (Board) to conduct an investigation and provide a clemency
recommendation in a death penalty case, pursuant to KRS 439.450? This information is not
known. However, to obtain this information, if it exists, please contact the Department of
Libraries and Archives, 300 Coffee Tree Road, Frankfort, Ky 40601.
a. Ifyes, is the Board given explicit instructions on what issues it must investigate? N/A
b. If yes, is the Board given explicit instruction on specific procedures it should take to
investigate and make a recommendation? If yes, what are they? If not, how does the
Board review clemency petitions? N/A
i. Does every member of the Board personally review the clemency petition and
any supporting documents? N/A
ii. Does the Board possess the authority to independently investigate the clemency
petition in death penalty_cases? If yes, does the Board perform investigations?
N/A
iii. Does the Board possess the authority to conduct a clemency interview, meeting,
and/or hearing in death penalty cases? If yes, does the Board typically conduct a
clemency interview, meeting, and/or hearing? N/A.
iv. Does the Board collectively discuss the petition or does each member of the
board individually assess the petition without discussing it with the other
members? N/A
c. If yes, what weight, if any, does the Govemor give to the Board’s non-binding
clemency recommendation? N/A.
2. Please explain the Governor’s appointment process and decision-making when appointing
members of the Board.
a. How are members of the Board selected to serve? See KRS 439.320 attached.
b. Please describe any necessary minimum qualifications for Board members. See KRS
439.320 attached.
3. Please identify and explain all laws, rules, procedures, standards, and guidelines goveming
conflicts of interest of Board members, whether personal, professional, financial, etc.
a. What method does the clemency authority use to identify and resolve conflicts of
interest of clemency board members/advisors? See KRS Chapter 11A
Additional Information:
1. What have been some of the most difficult challenges you or your office have faced in
determining whether to grant clemency? N/A
Please do not hesitate to contact us if you have any questions or need clarification. We always
welcome any additional comments or feedback you may have.
OFFICE OF THE GOVERNOR
APPLICATION FOR GUBERNATORIAL PARDON
AND/OR COMMUTATION OF SENTENCE
The applicant MUST this Application in full-- use extra paper where necessary.
Answer every question that applies to you:
CONSIDERATION OF AN APPLICATION FOR GUBERNATORIAL PARDON AND/OR COMMUTATION OF
SENTENCE WILL NOT NECESSARILY RESULT IN THE REQUEST BEING GRANTED. ADDITIONAL RESPONSES
MAY BE REQUIRED.
1. Name of Applicant:
Last First Middle
2. Name used at Time of Conviction:
Last First Middle
3. Aliases Used:
4. Social Security No.:
5. Date of Birth:
6. Address:
City/State: Zip:
7. Phone: ( )
8. Marital Status: Spouse’s Name & Address:
9. Names and Ages of Dependent Children:
10. Criminal Charges or Convictions. BEGINNING WITH MOST RECENT, list ALL past and pending charges, felony or
misdemeanor, regardless of conviction, excluding traffic violations — use extra paper if necessary.
i. Charge.
Court of Conviction, City, County & State.
Conviction Received
Date Convicted
Judge. Prosecutor. Defense Attorney.
Length of Sentence. Probated for years,
Federal Sentence [_]Yes[_]No Federal Number.
Period of Incarceration, Place of Incarceration,
Institution Number. Date entered institution of jai
Conditional Release Date. Date Paroled. Date of Final Discharge,
Date Probated, Date Probation Expired. Probation Number.
Probation/Supervising Officer’s Name and County.
ii. Charge
Court of Conviction. City, County & State.
Conviction Received.
Date Convicted,
Judge. Prosecutor. Defense Attorney.
Length of Sentence. Probated for years
Federal Sentence [_]Yes[_]No Federal Number.
Period of Incarceration. Place of Incarceration.
Institution Number. Date entered institution of jail
Conditional Release Date. Date Paroled Date of Final Discharge.
Date Probated, Date Probation Expired, Probation Number.
Probation/Supervising Officer’s Name and County.
AA
iii.
Charge.
Court of Conviction,
Conviction Received.
Date Convicted,
City, County & State.
Defense Attorney.
Judge Prosecutor.
Length of Sentence. Probated for
Federal Sentence [_|Yes|_|No Federal Number.
Period of Incarceration.
Institution Number,
Conditional Release Date. Date Paroled
years
Place of Incarceration.
Date entered institution of jail
Date of Final Discharge.
Date Probated,
Probation/Supervising Officer’s Name and County.
Date Probation Expired.
Probation Number
11. Has the Applicant ever been found in violation of any terms or conditions of parole? Cyes [No. If yes, explain on
extra paper.
12. Has the Applicant ever been found in violation of any terms or conditions of probation? (yes [INo. Ifyes, explain on
extra paper.
13. Are you under Indictment? Cyes [INo Explain:
14. Do you have any Outstanding Fines? Explain:
15. Do you have any Unpaid Restitution? [Yes [No Explain:
16. If ever incarcerated, state each instance the Applicant was incarcerated. (Include the basis for the action and discipline
received)
17. Conviction(s) for which relief is sought:
18. Education — Complete for the highest grade or year completed at all levels of school below.
5 High School
Name and Address of School
Dates Attended to
ii. Under Graduate College or University
Name and Address of School
Date of Graduation
Diploma [Yes
LINo
Dates Attended to
iii. Graduate College or University
Name and Address of School
Date of Graduation
Degree
Dates Attended to
iv. Vocational, Business or Technical School
Name and Address of School
Date of Graduation
Degree
Dates Attended to
Vv. GED [lyes [JNo Date
Date of Graduation
Degree
19,
iii.
. Military record (include branch of military, date of service, and type of discharge):
Applicant’s five most recent employers (begin with most recent)
Employer’s Name.
Employer’s Address,
Supervisor’s Name.
Period of Employment, Reason for Leaving
Employer’s Name.
Employer’s Address,
Supervisor’s Name.
Period of Employment. Reason for Leaving.
Employer’s Name.
Employer’s Address,
Supervisor’s Name.
Period of Employment, Reason for Leaving
Employer’s Name.
Employer’s Address.
Supervisor’s Name.
Period of Employment. Reason for Leaving
Employer’s Name.
Employer’s Address
Supervisor’s Name.
Period of Employment. Reason for Leaving.
. Names, addresses and relationship of three non-family references:
)
1
2)
3)
. Has the Applicant ever previously applied for a pardon/commutation? []Yes [JNo
If yes, in what year was application made? (Provide copy)
. Has the Applicant ever received a pardon/commutation? Cyes [LINo
. Ina separate letter, which must accompany the Application, please describe in your own words the reason(s) you are
seeking relief and state the extenuating circumstances supporting the basis for the request.
. A minimum of three (3) letters of recommendation in support of the request for relief must accompany the
Application. Additional letters are recommended and may be submitted from all sources, including but not limited to the
following: neighbors, employers, co-workers, pastors, church members, elected officials, judges, prosecutors, family
members, etc.
. Name, address and phone number of person(s) to contact if we need to contact you on an emergency basis.
cc
I hereby authorize the Office of the Governor and any of its representatives to make all necessary investigations of my
work, character, personal history, and financial, credit, and other records through investigative or credit agencies, or through
communication with persons including, but not limited to, the following: (a) anyone connected with my current employer, (b)
any former supervisor, official, or co-worker at my prior employers, (c) my neighbors, friends, or others with whom I am
acquainted, or (d) individual references, schools, or other organizations, including law enforcement agencies, named in this
application. I hereby authorize all parties referenced in the preceding sentence to release in any manner any and all
information which may be pertinent to my application, whether such information is public record or not. I also hereby release
all persons, employers, agencies, schools, companies, or other parties from any damages resulting from furnishing such
information.
I swear or affirm that the information reported in this application and any accompanying material is complete and
accurate.
Date Signature
Additional responses may be required of an applicant.
COMPLETION OF THE APPLICATION FOR GUBERNATORIAL PARDON AND/OR COMMUTATION OF
SENTENCE, WHICH MUST BE IN FULL, MEANS ONLY THAT THE APPLICANT MAY BE CONSIDERED FOR A
PARDON AND/OR COMMUTATION, NOT THAT ONE WILL BE GRANTED.
Promptly notify us concerning any change of address or change in telephone listing.
Return completed Application for Gubernatorial Pardon and/or Commutation of Sentence with required attachments to:
Office of the Governor
700 Capitol Avenue
Frankfort, Kentucky 40601
ATTN: Office of the General Counsel
DD
PAUL E. PATTON
GOVERNOR
EXECUTIVE ORDER
2003 - 1243
Secretary of State
Frankfort
Kentucky
December 8, 2003
COMMUTATION OF DEATH SENTENCE
TO ALL PEACE OFFICERS OF THE COMMONWEALTH OF KENTUCKY:
WHEREAS, Kevin Nigel Stanford, #32700, (“Stanford”) was tried and convicted
in the Jefferson Circuit Court for the crime of capital murder and his punishment fixed at
death, judgment being regularly and properly entered by the Jefferson Circuit Court: and
WHEREAS, Stanford was granted an appeal to the Supreme Court of Kentucky,
the highest court in the Commonwealth of Kentucky, which sustained and affirmed the
judgment of the Jefferson Circuit Court; and
WHEREAS, the Supreme Court of the United States has denied certiorari and
review of an original petition for writ of habeas corpus; and
WHEREAS, Stanford has not obtained any stay of execution from the Supreme
Court of Kentucky or any other Court having jurisdiction; and
WHEREAS, Stanford was only 17 years old at the time of the commission of the
crime for which he was sentenced to death; and
WHEREAS, as early as October 2001, I stated publicly that I do not support
capital punishment for juvenile offenders and that i would sign legislation abolishing the
death penalty for those persons who were under the age of 18 at the time of their crime,
although the legislature failed to enact any such measure; and
WHEREAS, my opposition to the death penalty for juvenile offenders is
supported by international law, 29 states and the federal government as well as many
respected organizations including the American Bar Association, the distinguished
bipartisan blue ribbon committee of the Constitution Project, the American Psychiatry
EE
PAUL E. PATTON
GOVERNOR
EXECUTIVE ORDER
2003 - 1243
Secretary of State
Frankfort
Kentucky
December 8, 2003
Association and numerous Kentucky organizations such as the Kentucky Domestic
Violence Council, the Mental Health Association of Kentucky, the Kentucky Child
Abuse Council and Kentucky Youth Advocates; and
WHEREAS, five of Kentucky’s neighbors, Ohio, Indiana, Tennessee, Illinois and
West Virginia, do not permit the execution of their citizens for murders committed under
the age of eighteen; and
WHEREAS, my opposition to the death penalty for juvenile offenders is also
supported by recent research, including that of Dr. Ruben C. Gur, PhD., a
neuropsychologist at the University of Pennsylvania, concerning adolescent brain
development, which demonstrates that the human brain is not fully mature before
reaching adulthood, and that the brain regions that are the most important for regulating
impulse control, planning, consideration of consequences, abstract reasoning and, most
probably, moral judgment, are the very regions of the brain that mature last; and
WHEREAS, Kentucky last executed a juvenile offender in 1946, and today
nearly 80% of Kentuckians believe a sentence other than death is most appropriate for
juveniles convicted of murder; and
WHEREAS, as a society, we do not allow adolescents to vote, drink, enter into
contracts, or even to use tobacco, it is my belief therefore that adolescents and juveniles
should not then be subjected to the ultimate penalty of death for their actions; and
WHEREAS, David Buchanan, Stanford’s co-defendant in this heinous crime,
received a life sentence, the maximum sentence available at the time other than death,
and continues to be denied parole and is not eligible to meet the Kentucky Parole Board
again until January 2007:
NOW, THEREFORE, I, Paul E. Patton, Governor of the Commonwealth of
FF
PAUL E. PATTON
GOVERNOR
EXECUTIVE ORDER
2003 - 1243
Secretary of State
Frankfort
Kentucky
December 8, 2003
Kentucky, acting pursuant to the authority vested in me by Section 77 of the Constitution
of the Commonwealth of Kentucky do hereby commute Kevin Nigel Stanford’s death
sentence to life in prison without any possibility of parole. It is my express intent by this
Order that Kevin Nigel Stanford shall remain in confinement as an inmate at a state penal
institution until the date of his death.
Done at the Capitol, in the City of Frankfort,
d |} December, s
PAUL E. PATTON, Governor
Commonwealth of Kentucky
yy, TMieus iis a
HN Y. BROWN II
ecretary of State
GG
ERNIE FLETCHER
GOVERNOR
EXECUTIVE ORDER
2007-1175
December 10, 2007
Secretary of State
Frankfort
Kentucky COMMUTATION OF DEATH SENTENCE
TO ALL PEACE OFFICERS OF THE COMMONWEALTH OF KENTUCKY
WHEREAS, Jeffrey Devan Leonard was sentenced under the name James Earl Slaughter to
death by the Jefferson Circuit Court in Slaughter v. Commonwealth, Jefferson Circuit Indictment No.
1983-CR-0387 on December 2, 1983; and
WHEREAS, Jeffrey Devan Leonard was an 18 year old at the time the offense occurred, and was
19 years of age at the time of trial; and
WHEREAS, Jeffrey Devan Leonard’s defense attorney did no investigation and preparation for
the penalty phase of the capital trial, violating minimum standards of practice at that time for a capital
defense; and
WHEREAS, both the United States District Court and the United States Court of Appeals for
the Sixth Circuit found that defense counsel’s failure to investigate and present available mitigating
evidence was constitutionally deficient; and
WHEREAS, as a result of that failure by defense counsel, the jury who sentenced Mr. Leonard,
did not hear from his mother, brothers and other witnesses including competent experts who would have
related an accurate, mitigating portrait of Jeffrey Leonard’s background; and
WHEREAS, it is in the interests of this Commonwealth that Jeffrey Devan Leonard not be
executed since he was not afforded the basic tools that insure a fair, thorough and just consideration by a
jury before the death sentence is given; the most basic of these tools being the assistance of counsel.
NOW, THEREFORE, by the virtue of the authority vested in me by Section 77 and related
provision in the Constitution of the Commonwealth of Kentucky, I, ERNIE FLETCHER, Governor of
the Commonwealth of Kentucky, do hereby commute the death sentence imposed by the Jefferson
Circuit Court on Jeffrey Devan Leonard (also known as James Earl Slaughter) in James Earl Slaughter vy.
Commonwealth, Jefferson Circuit Court Indictment No. 1983-CR-0387 to a life sentence without the
possibility of parole.
Done at the Capitol, in the City of Frankfort, this 10"
day of December, in the year of our Lord Two Thousand
and Seven and in the year of the Commonwealth the
Two Hundred Sixteenth.
Gb
FREY GRAY:
Secretary of Stat
138 ETCHER, Governor
Commonwealth of Kentucky
HH
