Featured Case - Ward - Traffic Stop and Automobile Search

Ward v. Commonwealth, 10-CA-000732, Court of Appeals 

TO BE PUBLISHED

In Ward, an officer testified that he stopped a car after he witnessed it make a right turn without stopping at a stop sign.  The officer claimed that the two men inside appeared nervous and he recognized them as persons with “known drug violations.”  When the officer requested identification, the other occupant (Garner) gave his driver’s license.  Ward only gave the officer his Social Security number.  It took the officer five to ten minutes to run an identification check due to, according to the officer, Ward only giving his Social Security number.  After learning that no warrants were outstanding, the officer returned to the car.  Eight to ten minutes had transpired to this point and the officer had yet to write the traffic citation.  The officer asked Ward for permission to search the car.  Ward refused.  The officer had a canine unit in his car and conducted a canine search.  Methamphetamines were discovered in the car. 

On appeal, Ward argued that the duration of the traffic stop was unreasonably extended by the canine search.  The Court disagreed.  The Court determined that the eight to ten minutes between the stop of the vehicle and the canine search beginning and the total of twenty to twenty-five minutes from the time of the initial stop to the dog’s alerting on the vehicle was not unreasonable and, therefore, not a violation of the Fourth Amendment.

Contributed by Brandon Pigg

Supreme Court to Revisit Eyewitness Identification - NY Times

34 Years Later, Supreme Court Will Revisit Eyewitness IDs

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

more on Eyewitness Misidentification from the Innocence Project

Read more about the case before the Supreme Court, Perry v. New Hampshire.

USA Today - Justice in the Balance

A USA TODAY investigation documented 201 criminal cases across the nation in which federal judges found that prosecutors broke the rules. The abuses put innocent people in jail, set guilty people free.

Full coverage | Explore cases | Methodology 

Did prosecutors taint Memphis murder trial?

by Brad Heath, USA TODAY (08/17/2011)Did prosecutors taint Memphis murder trial?

Michael Rimmer's attorneys are pursuing an extraordinary strategy to try to save his life. They want a Tennessee appeals court to find that misconduct by prosecutors and police here was so pervasive that the entire Shelby County District Attorney General's Office should be disqualified from the case, and that a new prosecutor should be brought in to review the evidence.

Prosecutors' conduct can tip the scales

by Brad Heath and Kevin McCoy, USA TODAY (09/22/2010)Prosecutors' conduct can tip the scales

A USA TODAY investigation found that prosecutors have repeatedly violated their duty to seek justice in courtrooms across the country. The abuses have put innocent people in prison, set guilty people free.

D.C. court asked to disbar federal prosecutor

by Brad Heath, USA TODAY (03/08/2011)D.C. court asked to disbar federal prosecutor

Regulators asked the District of Columbia's highest court on Tuesday to strip a former federal prosecutor of his law license for his "illegal and unethical" conduct during a series of high-profile murder cases in the mid-1990s.

MAP, DATABASE: Explore misconduct cases

MAP, DATABASE: Explore misconduct cases

USA TODAY's investigation documented 201 cases in which judges threw out convictions or rebuked prosecutors. Examine the cases we identified and explore an interactive map.

Justice Dept. office to punish prosecutors' misconduct

by Brad Heath and Kevin McCoy, USA TODAY (01/19/2011)Justice Dept. office to punish prosecutors' misconduct

The Justice Department created a new internal watchdog office to make sure federal prosecutors face swifter and more consistent punishment if investigators find that they committed misconduct, following a USA TODAY investigation.

VIDEO: Wrongfully jailed

Video by Rhyne Piggott, USA TODAY (09/22/2010)VIDEO: Wrongfully jailed

Nino Lyons served almost three years in jail after he was convicted of trafficking cocaine. It was the evidence jurors never got to hear that eventually set him free.

Justice Dept. ensures prosecutors brush up on duties

by Brad Heath, USA TODAY (09/22/2010)Justice Dept. ensures prosecutors brush up on duties

The Justice Department is taking new steps to make sure federal prosecutors live up to their constitutional duty to turn over evidence to the people they charge with crimes.

CLOSER LOOK: Prosecutor misconduct takes many forms

CLOSER LOOK: Prosecutor misconduct takes many forms

Misconduct can take a variety of forms. Here is a sampling of the more common problems USA TODAY's investigation identified.

Not guilty, but stuck with big bills, damaged career

by Kevin McCoy and Brad Heath, USA TODAY (09/27/2010)Not guilty, but stuck with big bills, damaged career

A 1997 law requires the Justice Department to repay the legal bills of defendants who win their cases and prove that federal prosecutors committed misconduct or other transgressions. But Morris didn't get anything from Washington.

VIDEO: Fighting and winning

Video by Garrett Hubbard and Maxine Park (09/27/2010)VIDEO: Fighting and winning

Richard Holland Jr. and his father, Richard, who headed a community bank in rural Virginia, were awarded nearly $1 million to repay their legal bills after a judge ruled a federal prosecution against them had been “vexatious.”

Va. bankers scored a rare victory against federal prosecutors

by Kevin McCoy, USA TODAY (09/27/2010)Va. bankers scored a rare victory against federal prosecutors

Richard Holland Jr. beat the government -- twice. But neither victory made up for nearly eight years of anguish.

Prosecuting offices' immunity tested

by Brad Heath and Kevin McCoy (10/05/2010)Prosecuting offices' immunity tested

Americans can sue almost anyone for almost anything. But they can't sue prosecutors. Not when prosecutors hide evidence that could prove someone's innocence.

High court questions training of prosecutors on constitutional obligation

by Brad Heath, USA TODAY (10/06/2010)High court questions training of prosecutors on constitutional obligation

Supreme Court justices questioned Wednesday whether additional training for prosecutors would have prevented the constitutional violations that put a New Orleans man on death row for a murder he didn't commit.

Federal prosecutors keep jobs even after cases collapse

by Brad Heath and Kevin McCoy, USA TODAY (12/09/2010)Federal prosecutors keep jobs even after cases collapse

What happened to the baby girl is a mystery. What happened to the federal prosecutor who handled the case against Sabrina Aisenberg's parents is not.

Defendant, prosecutor in case say they were wronged

by Kevin McCoy and Brad Heath (12/09/2010)Defendant, prosecutor in case say they were wronged

A federal appeals court ruled a prosecutor had interfered with the constitutional rights of an outdoorsman he had sent to prison. Then, an administrative law judge ruled that the Department of Justice failed to prove most of the misconduct it made in disciplining the prosecutor.

States can discipline prosecutors, rarely do

by Brad Heath and Kevin McCoy, USA TODAY (12/09/2010)

Federal prosecutors who violate laws or cut corners to win convictions face almost no risk of losing their ability to practice law, USA TODAY has found.

Justice Department responds

The Justice Department says in a statement that USA TODAY's "selective review of a handful of the many thousands of cases ... does little to provide an accurate and representative picture of the honorable work done by federal prosecutors."

Prosecutor misconduct lets convicted off easy

by Brad Heath and Kevin McCoy, USA TODAY (12/27/2010)Prosecutor misconduct lets convicted off easy

Although misconduct by prosecutors has put put innocent people in prison, it also has set guilty people free by significantly shortening their prison sentences. In some cases, they served no additional time. New crimes sometimes followed.

Statement from the Justice Department

Justice Department spokeswoman Jessica Smith said USA TODAY's investigation "misleads readers by providing a statistically inaccurate representation of the hard work done by federal prosecutors daily in courtrooms across the country."

National Juvenile Justice Network - Safe and Effective School Disciplinary Policies and Practices

NJJN Policy Platform - Safe and Effective School Disciplinary Policies and Practices

NJJN's latest policy platform includes recommendations on safe and effective school disciplinary policies and practices.  The recommendations focus on:

Law enforcement and discipline policies
Suspensions and expulsions
Student rights and family engagement
Students with disabilities
Data and racial and ethnic disparities (Disproportionate Minority Contact

Click here to see all NJJN policy platforms.

Law Enforcement and Discipline Policies

  • Schools must reject the one-size-fits-all prearranged set of sanctions laid out in zero tolerance policies and instead promote discipline policies that provide individualized assessments and interventions that are appropriate to ensure a safe learning environment.
  • Schools must not use law enforcement as a response to non-criminal adolescent misbehavior. If students engage in criminal behavior on school grounds, schools must have graduated responses in place, reserving law enforcement for only the most serious offenses.
  • Schools must establish clear guidelines for school personnel and on-campus law enforcement officials
    regarding the role of each in responding to youth behaviors and exactly which infractions may lead to court
    referrals. Referrals to court should be reserved for only the most serious infractions.
  • To eliminate or curtail the use of mechanical restraints, chemical restraints, corporal punishment, and isolation, law enforcement and school officials must be trained on the traumatic effects of these practices, as well as child and adolescent development, appropriate methods for de-escalation, and safe and effective responses to youth behaviors.
  • Schools must focus on prevention and effective intervention as responses to disciplinary issues. Positive
    Behavioral Interventions and Supports, peer juries, restorative justice processes, diversion, mentoring, mental health counseling, and restitution can be particularly effective in improving school safety and promoting positive youth development.

"Getting it Right" Videos from The Innocence Project

The Innocence Project today launched a new multimedia resource on the central causes of wrongful convictions and proven reforms to prevent injustice.  "Getting it Right"  features videos, case studies and in-depth research on forensics, false confessions, eyewitness identification, informant testimony, defense representation and conduct by police and prosecutors.

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 6

Myth No. 6:  I have to file a copy of the subpoena before it is binding on the witness.

Until I started writing this article, I thought that was the rule.  All the prosecutors with whom I have litigated file subpoenas for officers and witnesses in the courthouse as a rule.  If a witness does not show for court, the judges first check the file to see if a copy of the subpoena is there before issuing a warrant for the witness or resetting the case.  Notwithstanding all of this local practice, there is no authority anywhere that says the subpoena has to be filed to be binding.  All that RCr 7.02(4) requires for proof of service is an affidavit endorsed upon the subpoena by the person serving the subpoena.  While interests of judicial expediency would be accommodated if the copy of the subpoena were already in the file, the rule seems to allow counsel to produce proof of service from his or her own file at the time of trial, when a witness does not show. 

Most of the time, especially when the witnesses are already known to the Commonwealth, counsel would want to file the subpoenas to avoid losing them, or having to make an argument why they do not have to be filed.  However, sometimes there is that “surprise” witness that the Commonwealth does not know about, and filing the subpoena would threaten to spoil that surprise.  In that instance, it might be best to not file the subpoena, and take your chances that if the witness is a no-show, the judge will not force you to trial for failure to file the proof of service.

an excerpt from The Subpoena: Ethical Use and Unethical Myth-Use by Scott West

New Resource on Fingerprints from the Scientific Working Group

"The dynamic and active nature of human information processing enables us to become experts but also makes us distort incoming data and make erroneous decisions. These vulnerabilities are not limited to fingerprint experts and apply equally to other domains. However, the importance of fingerprint evidence being reliable and unbiasable requires that these potential weaknesses be addressed." 

- Chapter 15, page 20

The Fingerprint Sourcebook

by Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST), et al. August 2011

SWGFAST, established in 1995, is one of several Scientific Working Groups (SWG). The overall intent of Scientific Working Groups is to improve forensic science practices and build consensus amongst federal, state, and local forensic laboratories and practitioners. The SWGs are a focal point for discussion on key issues confronting various forensic science disciplines which will lead to the establishment of guidelines and standards through consensus and general acceptance. The guidelines and standards published by them are widely recognized by the forensic community, the courts, and the forensic laboratory accrediting bodies.

The membership of SWGFAST is comprised of a diverse group of dedicated and professionally recognized individuals. This includes not only friction ridge examination experts from law enforcement agencies, but also defense experts, researchers, instructors, academicians, laboratory managers, and others

The Fingerprint Sourcebook aims to be the definitive resource on the science of fingerprint identification. The Sourcebook was prepared by the International Association for Identification and topics covered include the anatomy and physiology of friction ridge skin (the uniquely ridged skin found on the palms and soles); techniques for recording exemplars from both living and deceased subjects; the FBI's Automated Fingerprint Identifications Systems (AFIS); latent print development, preservation and documentation; equipment and laboratory quality assurance; perceptual, cognitive and psychological factors in expert identifications; and legal issues.

Download:  

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 5

Myth No. 5:  I actually have to place the subpoena in the witness’s hand before he is bound by it.

Stories abound, many of them apocryphal, about hiding subpoenas in pizza boxes or wrapping them up in gift boxes because of the mistaken belief that you have to physically place the subpoena in someone’s hand before you can claim it has been delivered.  Actually, all that is required is that an attempt to deliver be made.  RCr 7.02(4) provides that “service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed.”

Yelling to a person that you have a subpoena for them as they are bolting down an alley satisfies the “offering to deliver” requirement.  Likewise, while there is no case law to support it, an offer to deliver a subpoena made over the telephone meets the requirement.  If the offer is accepted, actual delivery of the subpoena should be attempted.  But if the offer is declined, RCr 7.02 ought to be satisfied.

an excerpt from The Subpoena: Ethical Use and Unethical Myth-Use by Scott West

Pew Center News Brief - 2011 Kentucky Reforms Cut Revidivism, Cost

Opening statement from the brief

    Problem: Kentucky had one of the fastest growing prison populations in the nation over the decade ending in 2009, rising by 45 percent, compared to 13 percent growth for all states.

    Consequences: Corrections spending jumped 214 percent over the two decades ending in FY 2010, to $440 million. Meanwhile, recidivism rates remained above levels seen in the 1990s, despite slight improvement in recent years.

    Drivers: Data showed an increase in overall arrests and court cases, as well as rising incarceration rates for technical parole violators. Analysis also showed offenders in Kentucky were far more likely to be sentenced to prison than the national average and an increase in the percentage of all admissions who were drug offenders.

    Reforms: With technical assistance from the Pew Center on the States, the Task Force on the Penal Code and Controlled Substances Act produced a set of reforms leading to the Public Safety and Offender Accountability Act of 2011. Passed unanimously in the Senate and with just one dissenting vote in the House, the law concentrates expensive prison beds on serious offenders, reduces recidivism by strengthening probation and parole, and establishes mechanisms for measuring government progress over time.

    Impact: The legislation is expected to enhance public safety and improve the performance of Kentucky’s correctional system on multiple levels. The state estimates the reforms will save $422 million over 10 years, allowing inc

Complete News Brief

The Kentucky Department of Public Advocacy Alternative Sentencing Social Worker Program Wins NCJA Outstanding Criminal Justice Program Award

South_region

Public Advocate Ed Monahan receiving award

(from NCJA Press release)

The National Criminal Justice Association is pleased to honor the Kentucky Department of Public Advocacy Alternative Sentencing Social Worker Program with its 2011 Outstanding Criminal Justice Program Award for the Southern Region.  This program was recognized for providing social worker services to indigent non-violent defendants who are represented by Kentucky public defenders. The social workers develop plans that provide personalized rehabilitative support that address pivotal aspects of offenders life such as addiction, physical health, mental health, housing, education, employment, family and other issues to improve the client’s successful function in the community and reduce recidivism.

The use of social workers to guide offenders into effective treatment programs is advantageous for multiple reasons including: their assistance is covered by attorney-client privilege—which increases the likelihood and effectiveness of early intervention; they improve coordination and cooperation among criminal justice agencies and treatment providers; and their early involvement in a case increases the likelihood of pretrial release or probation.

Each social worker has saved 10,000 days of incarceration and $100,000 in incarceration costs. If the DPA social worker program was implemented across the state of Kentucky, the projected savings to taxpayers would be estimated at $3.1-$4 million per year.

Secretary of the KY Justice and Public Safety Cabinet, J. Michael Brown praised the program saying, “the DPA Alternative Sentencing Social Worker Program has shown itself to be an important tool for the criminal justice system, by guiding offenders into effective treatment programs, and ultimately reducing recidivism and decreasing incarceration costs.  A study of the pilot program by the University of Louisville Kent School of Social Work determined that, between October 2006 and October 2007, 82% of adult defendants who received DPA social worker services and who were released from incarceration were still in the community 6 months later.”

The NCJA Outstanding Criminal Justice Program Awards are a way to seek out and share successful criminal justice programs. The purpose of these awards is to highlight programs that:

•    Address an important criminal justice issue;
•    Demonstrate effectiveness based on program goals;
•    Are a good example of used of federal funds to initiate the program that is subsequently supported through state and local funds or is self sustaining; and
•    Can be easily replicated in other jurisdictions.

For more information about NCJA or the Outstanding Criminal Justice Program Awards, please visit www.ncja.org.