Featured Case - Marshall - Revocation for failure to pay

CW v. Marshall; CW v. Johnson

Rendered by the Supreme Court of Kentucky on August 25, 2011

To be published (now final)

The Court analyzed the due process requirements that apply when the Commonwealth attempts to revoke the probation/conditional discharge of a person convicted of flagrant non-support for failure to pay current and past support as a condition of release. The Court held that the due process requirements set out by the U.S. Supreme Court in Bearden v. Georgia, 461 U.S. 660 (1983) apply because child support arrearages amount to restitution. The Court of Appeals, had previously adopted that holding in Gamble v. Commonwealth, 294 S.W.3d 406 (Ky. App. 2009). This means that the trial court must consider “whether the probationer made sufficient bona fide attempts to make payments but been unable to do so through no fault of his own and, if so, whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence.” To revoke automatically would be fundamentally unfair otherwise.

            These due process requirements apply even if the defendant agreed to pay support as a condition of probation, settling a question left open by the Court of Appeals in Bearden. The Court held “Bearden recognizes constitutional concerns with revoking probation for nonpayment based on poverty alone.” The trial court should focus on the post-plea financial conditions of the defendant. The trial court already decided the defendant should not be incarcerated at the time of sentencing based on what was known then.

            The Court reminded trial courts that they must make specific findings on the record of the Bearden considerations. The Court held that while under CW v. Alleman findings do not necessarily be in writing, they still must be made specifically on the record and “general conclusory reasons” for revoking probation is not enough.

            Thanks to Josh Nacey for preserving this constitutional argument and putting on significant evidence in Marshall’s case about his good faith efforts to find work and pay his support and his poverty. We should be following the Bearden procedure and objecting under due process grounds if courts do not comply and do not make sufficient fact-finding.

Contributed by Kathleen Schmidt

Featured Case - Ivy - Contempt for Failure to Child Support

CW, CHFS, and Larry Barnes v. Renee Ivy (now Knighten)

Rendered in the Supreme Court on October 27, 2011,

To be published

The Supreme Court issued a well-crafted, 5-2 opinion in a case revolving around a family court order holding a mentally ill woman in contempt for failing to pay $106 in child support when her sole source of income was $25-$50 per month given to her by her public administrator from the remainder of her SSI benefits after her room and board were paid. The trial court modified the base amount of support to $60 at the hearing but also found Ivy to be able-bodied capable of providing financial support to her child, held her in contempt, and ordered Ivy to pay $60 plus $5 towards the arrearage or face arrest and service of 30 days in jail. The Court of Appeals reversed the contempt order as well as the order modifying because they were not supported by the evidence.

    The Court recognized the legislative mandate for allowing support to be ordered and to accrue even against a parent with no present ability to pay because “present circumstances need not be permanent.” SSI benefits are also included in that calculation by statute. However, the Supreme Court affirmed that a trial court always has the “broad discretion” to reduce a parent’s support obligation to less than the minimum amount of $60 if it determines from the evidence that that amount is unjust or inappropriate under KRS 403.211(2). The Court criticized the paucity of findings in the family court’s order supporting the decision to enter a $60 obligation. The Court found that the family court was operating under the “unfair or inappropriate” section of the statute to deviate from the statute, which was in its discretion to do, but erred when it did not explain through facts or law why it set a new amount that was higher than what Ivy received each month from her administrator. That portion of the case was remanded for reconsideration and findings under the standard set by the Court, rather than have the Court “divine” what led the family court to rule that way.

    The Court then distinguished between the ability to set and accrue support and the ability to collect it. A parent’s “ability to pay, …, does determine the extent to which support can be collected. Where there is no ability to pay, it is not contumacious to fail to do so.” The Court agreed with the Court of Appeal that the family court erred in finding Ivy was in contempt for failing to pay her support based on the facts from the hearing. The Court held that while receipt of SSI benefits alone does not compel a finding of inability to pay support, the family court is not free to “simply … disregard the [SSA’s] determinations that an SSI recipient is disabled and needs the full amount of his or her award for subsistence. If earning capacity is to be attributed to the recipient, or if child support is to be demanded from the SSI benefit itself, there must be evidence clearly establishing the recipient’s ability to work or the recipient’s ability to afford the support payment.”  The family court’s finding that Ivy was able-bodied and capable of providing support did not refer to the evidence and was unsupported by the evidence and was an abuse of discretion. The CHFS had relied on the family court’s observations of Ivy at other hearings. About this, the Court held, “While the family court’s courtroom observations are not meaningless, they cannot be the sole basis for the court’s assessment of Ivy’s mental condition, as assessment requiring specialized training.” The Court also noted that Ivy was paying support because the family court had found her unfit to have custody or even unsupervised visits with her baby.

   The Court went through the difference between civil and criminal contempt, finding this was still civil even though it flirted with criminal contempt. The Court found the family court’s coercive remedy for the contempt, i.e. the threat of future incarceration for future violations was not a true purge opportunity and was invalid.

    The Court also rejected CHFS’ attempt to use judicial notice as a method of getting into the record a purported current payment ledger showing Ivy was now paying the support. The Court held that assessing the proprietary of contempt must be based on the evidence before the trial court at the time of the hearing. It also wisely recognized that a payment ledger says nothing about whom or how the support is being paid.

    The Court encouraged courts, after a valid contempt finding, to fashion a meaningful remedy to fit the circumstances, as have been done by other courts.

    Lastly, the Court found that whether the attempt to collect support from Ivy by making her pay from her SSI benefits did not violate the Supremacy Clause, but held whether a constitutional violation occurred would be dealt with on a case-by-case basis.

    Trial tips- First, the result in this case was largely dictated by the excellent work of attorney David Bundrick who made a great record by calling Ivy’s public administrator to testify about her income and SSI benefits. The more great facts that are introduced about the inability of the SSI recipient to do anything other than scrape by, the better chance of defending a contempt violation. Second, the Court left open the possibility of a Supremacy Clause violation in the right circumstances (“does it do major damage to clear and substantial federal interests”). The two interests pitted against each other are the interest in the SSI benefits that are awarded solely for the benefit of the recipient to maintain a basic subsistence and the interest the state has in parents supporting their children. Depending on the evidence, that balance may well shift towards the parent. So attorneys should be making both due process and Supremacy Clause objections where the facts warrant them.

Submitted by Kathleen Schmidt

Featured Case - Buchanan - Costs

Gloria Buchanan v. Commonwealth

2010-CA-1120

Opinion dated October 28, 2011

Not to be published. 

The Court of Appeals, among other things, affirmed the trial court’s decision to impose “court costs, fines, and/or fees in the amount of $295.00” following Ms. Buchanan’s conviction of Wanton Exploitation of a Vulnerable Adult.  The Court of Appeals held that it was not palpable error in this case.  Trial Practice Tip: Object and argue that the client is a poor person and cannot pay court costs, fines, or fees.

Contributed by Robert Yang

Featured Case - Smith - Dismissal with Prejudice

Commonwealth v. John Smith

2010-CA-1703

Opinion dated October 28, 2011, to be published. 

The issue in this case was whether a circuit court may convert a “dismissal of a criminal indictment without prejudice” to a “dismissal with prejudice” nine years after entry of the original dismissal. 

The COA held that, based on Commonwealth v. Sowell, 157 S.W.3d 616 (Ky. 2005), a trial court loses jurisdiction after 10 days, so it cannot convert the dismissal.  Mr. Smith was indicted in October 2000 for Trafficking 1st, Tampering with Physical Evidence, and Possession of Drug Paraphernalia.  Evidence against Mr. Smith was suppressed after a suppression hearing.  Accordingly, the Commonwealth filed a motion to dismiss the indictment without prejudice. 

After more than nine years without any further prosecution on this case, Mr. Smith filed a motion in circuit court to expunge the indictment or dismiss the indictment with prejudice.  The trial court granted the motion to dismiss with prejudice.  The Commonwealth on appeal argued, and the Court of Appeals agreed, that the trial court lost jurisdiction to alter the order of dismissal ten days after its entry. 

The Court of Appeals does offer some possible solutions for trial counsel. First, a defendant can apply to segregate his records held by any public agency and removed from the public record.  Second, and probably the better solution, would be for trial counsel to ask the trial court to exercise its narrow but inherent power of expungement for the purpose of correcting constitutional infractions.  See Commonwealth v. Holloway, 225 S.W.3d 404 (Ky. App. 2007) (court has the right to grant expungements which are not otherwise authorized by KRS 431.076 under “its inherent powers to expunge a record in instances of extraordinary circumstances, such as illegal prosecutions, arrests under unconstitutional statutes, or where necessary to vindicate constitutional or statutory rights.”).   

Contributed by Robert Yang

NCJA/BJA Webinar: Innovations in Public Defense: Using a Multidisciplinary Approach to Improve Justice System Outcomes

NCJA and the Bureau of Justice Assistance for the next webinar in our monthly series: Innovations in Public Defense: Using a Multidisciplinary Approach to Improve Justice System Outcomes on November 30, 3-4 p.m. Eastern.

Innovations in Public Defense: Using a Multidisciplinary Approach to Improve Justice System Outcomes will focus on two public defender offices who are using innovative programs to improve public safety and client outcomes. These two programs have incorporated a multi-disciplinary approach to public defense which enhances the types of services offered, helps judges make more informed decisions and prevents increased justice system expenditures.

Presenters for this webinar are Robin Steinberg, executive director of the Bronx Defenders and Edward Monahan, commissioner of the KY Department of Public Advocacy.

Also, the PowerPoint slides and the webcast from our most recent webinar, Using Evidence Informed Principles in Juvenile Justice: Lowering Recidivism, Reducing Secure Detention and Promoting Positive Youth Development are available on the NCJA website at www.ncja.org/webinars.

This webinar series is supported by Grant No. 2010-DB-BX-K086 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions are those of the speakers.

Spark of Truth: Can Science Bring Justice to Arson Trials? - Discover Magazine

Gregory Gorbett/Eastern Kentucky University

Also see the related article, "Seven Myths About Arson."

On a rainy spring morning in eastern Kentucky, Greg Gorbett prepares to commit arson. His target is a tidy but cheerless one-bedroom apartment with the kind of mauve-colored carpet, couches, tables, and lamps you would find in a cheap motel. Gorbett is not the only one eager to see the place burn. A handful of other fire scientists and grad students from Eastern Kentucky University (EKU) are checking equipment in the test room as well. They have gathered at the EKU fire lab, a concrete structure in an open meadow as close to nowhere as possible, to document in exacting detail the life cycle of a blaze.

Gorbett scans the setup one last time. A foil-covered wire studded with metal probes—a thermocouple array—crosses the ceiling and hangs down the center of the space; it will measure the temperature at one-foot intervals every two seconds. A radiometer shaped like a soup can will detect changes in radiant energy. Bundles of yellow wires will carry the data to a computer-equipped truck sitting out back. There is also a man lying on the floor: James Pharr, a former fire investigator from Charlotte, North Carolina, wearing a fire-resistant suit and oxygen mask, who will record the event with a thermal-
imaging camera.

read the rest of the article

Featured Case - Hall - Confession expert, evidence issues and discovery of witness statements

Steven Hall v. Commonwealth
No. 2010-Ca-001878-MR

Appeal From Boyle Circuit Court
Hon. Darren W. Peckler, Judge
Action No. 09-Cr-00101

Opinion Affirming, (Caperton, Combs and Thompson)
Steven Hall was operating a pontoon boat when he struck and killed his wife, Isabel.  He was convicted of second-degree manslaughter and sentenced to five-years’ imprisonment.  Four issues were decided:

(1) Expert testimony regasrding coerced confessions was inadmissible for the purpose of attacking the credibility of a police officer’s in-court testimony, distinguishing Terry v. Commonwealth, 332 S.W.3d 56 (Ky. 2010) on the facts because Hall didn’t testify and presented no evidence that his statements to the officers were coerced.  Thus the expert’s opinion wasn’t relevant.

(2) Evidence that Hall had a romantic interest in a woman other than Isabel was harmless error given the number of people who saw Hall run over his wife, but error because there was absolutely no evidence that Hall and the other woman had a sexual relationship or that the two planned a future. 
 
(3) It was not error to permit testimony that Hall intentionally accelerated the boat toward Isabel because the witnesses did not testify that Hall intended to kill Isabel but testified only to the facts as they were observed.  Also he was   convicted of recklessness, not intent.

(4) The Commonwealth didn’t fail to give defense counsel witness statements in violation of RCr 7.26.  The witness was interviewed twice and conveyed verbally to the officer that Hall waived Isabel’s dead hand. A witness is not required to confine testimony to “the four corners of his or her written statement.”  The remedy is cross-examination.ditions through the art of cross-examination.

Contributed by Susan Balliet

Featured Case - Taylor - Status as a Victim of DV

Michael Taylor  v. Commonwealth
No. 2010-CA-000674-MR

Appeal From Hardin Circuit Court
Hon. Kelly Mark Easton, Judge
Action No. 01-Cr-00429

Opinion Affirming, (Caperton, Moore, and Stumbo)


The circuit court determined that the KRS 439.3402 motion for relief  from the 85% rule based on status as a victim of domestic violence should have been brought, if at all, either at sentencing, on direct appeal, or by way of Taylor’s motions for RCr 11.42 and CR 60.02 relief.  The Court of Appeals here agrees in a published opinion.

Contributed by Susan Balliet

“Juror Pledge” [“I will not do research on the internet”] - Jury Room Blog

read complete Jury Room post here

Jurors researching cases on the internet have been a thorn in the side of the justice system for years. The act of researching and bringing information back to fellow jurors (resulting in mistrial) has been called the “Google mistrial”. The problem has gotten so pervasive, a judge in Minnesota has begun a single-subject blog called Jurors Behaving Badly .

 

Here is the actual wording of the juror pledge in the Viktor Bout trial:

I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. Specifically, I will not use the Internet to conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.

Signed under penalty of perjury. 

____________________________

____________________________

(Sign and Print)

 

Dated: New York, New York

October 11, 2011