LRC Press Release - Lawmakers continue study of status offenders

FRANKFORT—The average age of a child committed to state child protection in Kentucky for a status offense—including being habitually truant—is 16. Many enter the system at age 13 or 14, state lawmakers were told today by the state Department for Community Based Services, and many go to foster care.

Of the 1,221 status offenders committed to the department as of January 2011, 945 were placed in “out of home care,” or foster care, said DCBS Commissioner Pat Wilson. They included victims of substantiated abuse or neglect, children with attention deficit disorders, victims of school bullying, substance abusers, or those who felt marginalized by society in some way, she said.

Foster care is one way to help these youth, but a course of action Wilson said DCBS does not favor for habitual truants is juvenile detention, or jailing of students. Habitual truancy, which Wilson said is the most common status offense in Kentucky, is defined by state law as six or more unexcused school absences per school year and is subject to action by the courts.

“We certainly agree that the detention of youth is not the answer to the problem,” Wilson told the Interim Joint Committee on Judiciary.

Only seven of the 1,221 children committed to DCBS in January were in juvenile detention facilities, she said, although that number only reflects the number of children under DCBS. It does not include status offenders who are detained before being committed to DCBS.

Wilson and Patrick Yewell, who is the executive officer of the Administrative Office of the Courts Department of Family and Juvenile Services, both seemed to favor diversion programs for truants that allow children to work through their issues with their school and the state without going to court.

“Truancy diversion programs do work,” said Wilson. “It’s essential we assess what the problems with these youth are and work… toward keeping them in school.”

Senate President Pro Tem Katie Kratz Stine, R-Southgate, suggested reducing truancy could also lower the state’s dropout rate.

“It seems to me there is a correlation between truancy and dropouts,” she said.

Yewell said the state’s Truancy Diversion Program has been voluntary chosen by 61 counties and 149 Kentucky schools so far as an option for handling truants. The program has been about 90 percent successful in correcting truancy issues based on grades and other measures of school performance, said Yewell. Still, not every county elects to join the program.

That drew comments from Sen. Robin Webb, D-Grayson, who said participation should be strongly encouraged.

“It’s as good to me as a truancy officer in your school system,” she said.

Yewell recommended that lawmakers consider statutory changes to Kentucky’s status offender laws including expanding parent accountability, reviewing the state court designated worker program, assessing programs and services—“Find what works, find what doesn’t work,” as Yewell said—and look at increasing the pay of state employees who work with status offenders.

“It’s gotten to the point where we must realize the key to any program is its workforce and the stability of that workforce,” he added.

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 3

Myth No. 3:  If I subpoena documents to the Courthouse, but the witness drops them off at my office by mistake, or out of convenience, I can go ahead and look at them and then decide if I want to go ahead and file them, or just throw them away.

Once subpoenaed, all parties have a right to look at the documents.  KBA E.423.  Failure to give notice to opposing counsel violates RPC 3.4(a) by obstructing the party’s access to evidence.  If by chance or by courtesy the custodian delivers them to your office, you should follow one of two paths, depending upon the circumstance.

Prior Court Approval:  If the documents are being produced after a hearing has already been held and a court order has been issued allowing you to have them, you can open the file and look at the documents.   You still must file the contents in the court file, however, as it is information produced pursuant to a court order, and available to all parties and the court.  Throwing them away risks a destruction of evidence charge. 

If it is critical that you examine your client’s medical records, social security records or other documents relating to him, without incurring the obligation of having to turn them over, use a release.  Then you only have to turn over those documents you intend to introduce at trial, or which you show to an expert you expect to call live at trial, and that is only if there is an obligation of reciprocal discovery.

No Prior Court Approval.  If there has not been a hearing concerning the discoverability of the documents, and the Court has not otherwise ordered that you are entitled to see them, then you should not look at the documents, but should place the sealed envelope into the court file and schedule a hearing, asserting your right to look at the documents.  If you look at the contents, or publish them to someone else, only to find out later that the documents were privileged and should have been revealed to you, if at all, only after an in camera inspection, you could open yourself up to sanctions for abuse of process and place at risk your ability to use the documents in trial.

KRS 422.305 specifically governs subpoenas of medical records, and KRS 422.330 specifically provides that the psychiatrist-patient privilege is to remain intact.  Hence, subpoenaing a person’s mental health records and looking at them without prior court permission can subject the attorney to contempt of court or a finding of misconduct.

Other statutes preserve confidentiality or privacy interest, even while allowing the confidential or private records to be subpoenaed.  One example of the risks associated with using such subpoenaed documents prior to court authorization occurred recently in the defense of a “doctor shopping” case tried by a colleague of mine.  “Doctor shopping” refers to an alleged illegal attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or withholding information from, a practitioner licensed to dispense drugs, in violation of KRS 218A.140.    The “doctor shopper” theoretically goes from doctor to doctor to doctor attempting to get multiple prescriptions for the same drug in a short period of time.

To combat this practice, the Cabinet of Human Resources maintains an electronic system for monitoring controlled substances, whereby each practitioner who prescribes or dispenses drugs provides data including the name and address of the person to whom each prescription was given.  The Cabinet is authorized to provide this data to any state, federal or municipal officer whose duty is to enforce the drug enforcement laws of Kentucky or the United States, and who is engaged in a bona fide specific investigation involving a designated person.  KRS 218A.202.  The drug enforcement officer can then use the data obtained to obtain a warrant, effect an arrest, procure an indictment, or perform any other legitimate police task.

In my colleague’s case, the authorities used a subpoena to obtain the compilations of data from the Cabinet’s database.  However, upon obtaining the data, the authorities rushed into the grand jury room, presented the results of the data, and procured indictments for doctor shopping against his client.  This was a misuse of the materials and an abuse of the statute, which provides in pertinent part:  “A person who receives data or any report of the system from the cabinet shall not provide it to any other person or entity except by order of a court of competent jurisdiction.”  Because the government had not sought a court order prior to publishing the information to a grand jury the data was suppressed as illegally obtained evidence.

The moral is, just because you got something by a subpoena, it does not mean you can use it anyway you want; other rules of privilege or confidentiality may limit the usage.

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

Tonight on "Frontline:" A Close Look at Child Death Cases






PBS’ "Frontline" tonight teams up ProPublica and NPR for a joint investigation that  uncovers more than 20 child death cases in which people were jailed on medical evidence – involving abuse, assault and “shaken-baby syndrome” – that was later found unreliable or flat-out wrong.
 
When a child dies under suspicious circumstances, abuse is often suspected, but tonight’s “Frontline” episode finds that faulty forensics have contributed to wrongful conviction in accidental deaths.

"The Child Cases" is the first of three segments airing June 28 at 9 p.m. (check local listings).

Watch the full episode online now and learn more about the science behind shaken-baby cases.

Court of Appeals June 17 "to be published" criminal opinions

Mundy v. Commonwealth 10-CA-000507

In Mundy, police discovered Mundy asleep in a car parked on a street at 5:40 a.m.  The officer testified that he was concerned for Mundy’s health and safety (claimed Mundy was breathing slowly) and opened the door to the car.  When he did so, a baggie of crack cocaine was seen in the floor board.

The Court of Appeals recognized that the emergency aid exception to the Fourth Amendment applies to automobiles.  The Court found that the proper test for determining whether a police officer conducted a lawful warrantless search of a motor vehicle pursuant to the emergency aid exception is whether the police officer’s entry into the vehicle was based on an objectively reasonable belief, given the information available at the time of entry, that a person within the vehicle was in need of immediate aid. 

The Court ultimately found that it was not reasonable for the officer to believe Mundy was in need of immediate aid. 

Stage v. Commonwealth 10-CA-000475

Stage pled guilty to one count of second-degree sodomy and two counts of second-degree sexual abuse in 1994.  Before his release in 2000, the trial court conducted a sex offender risk assessment hearing and found Stage to be a high risk offender.  Stage appealed that determination, the Court of Appeals reversed and the KY Supreme Court denied a motion for discretionary review.  

Another sex offender risk assessment hearing was held in 2010 and Stage was again found to be a high risk offender.  He again appealed.  On appeal, after a somewhat confusing procedural history, Stage argued that 2006 Kentucky Acts, Ch. 182 violated Section 51 of the Kentucky Constitution.  However, as the Court noted, Stage was released from prison on March 8, 2000.  As such, the 1998 version of Kentucky’s SORA was the version in effect when Stage was released from prison and initially registered.  He therefore had no standing to challenge the constitutionality of the 2006 version. 

The crux of the case was if Court could sua sponte dismiss for lack of standing.  The Court found that Stage had no judicially recognizable interest in the constitutionality of the 2006 version of the Act and, without such, it was unable to issue an opinion on the question presented and dismissal was the proper remedy.

Contributed by Brandon Pigg

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 2

Myth No. 2:  I can subpoena documents directly to my office.

No.  Technically, there is no such thing as subpoenaing documents.  RCr 7.02(3) states that you may command “the person to whom it is directed to produce the books, papers, documents or other objects designated therein.”  Even though it is the documents you desire, and you could care less about whether the person shows up or not, it is the person under the order of the subpoena, not the documents.  (Hence the phrase subpoena duces tecum, which essentially translates into “bring the documents with you.”) Since it is impermissible to subpoena a person to your office for any purpose (again, other than for a court-ordered deposition), it follows that you cannot command a person to come to your office bringing documents. 

KBA E-423 provides that “subpoenaed documents may be produced only before the court in connection with a judicial proceeding or properly authorized deposition.”  There is an exception for medical records (KRS 422.305), which allows documents to be produced “in lieu of attendance.”

There are a couple of ethics opinions out there relating to subpoenaing records for use in divorce proceedings where the attorneys were mildly sanctioned for subpoenaing their own client’s documents to their office without serving copies of the subpoenas on  the other side.  See Megibow v. KBA, 173 S.W.3d 618 (Ky. 2005)(“The use of subpoenas to obtain documentary evidence or tangible things without an accompanying notice of deposition or notice of hearing or trial has been a recurring problem.  Evidently, some practitioners are unaware that CR 45.01 prohibits such use of subpoenas”) and Munroe v. KBA, 927 S.W.2d 839 (Ky. 1996).  Keep in mind, this was their own client’s documents!  They could have been gotten by release without ANY notice to the other side.  But because a subpoena was used, it was an ethical violation.

The proper way to subpoena documents is to direct the custodian of records to deliver the documents to the courthouse at a hearing, or into the court file.

In Grand Jury proceedings, Commonwealth Attorneys can subpoena people to the Grand Jury for purpose of testifying or providing documents without having to appear live.  The Grand Jury may excuse full or partial compliance with the command of the subpoena or subpoena duces tecum.  Stengel v. KBA, 162 S.W.3d 914 (Ky. 2005).  But the Prosecutor’s subpoena power is not limitless!  See Bishop v. Caudill, 87 S.W.3d 1 (Ky. 2002) for a list of five things the Commonwealth cannot use the Grand Jury for:  (1) add new parties to an already existing indictment; (2) add new charges to an already existing indictment; (3) amend the old indictment; (4) use as a substitute for discovery depositions; or (5) prepare a case for trial.  “[I]f the purpose of subpoenaing [witnesses] is to use the grand jury proceedings as a guise for trial preparation, the subpoenas must be quashed.”  Bishop, supra.

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

 

AOC - Federal study validates risk-assessment tool used by Kentucky courts for pretrial release

As the pretrial release provisions of the New Penal Code and Controlled Substances Act (HB 463) begin being applied by the courts, the Administrative Office of Courts has announced publicly a study by the JFA Institute in Washington which affirms the validity of a key tool used by district and circuit judges when setting bonds for persons accused of crimes. 

According to the study, the AOC’s Manual Pretrial Interview, Investigation and Risk Assessment – which objectively classifies an individual’s risk of failing to appear in court or committing an offense while on bond into “low,” “moderate,” or “high” categories – ranks among the best in the nation in terms of its ability to predict the behavior of those released on bond. 

With the JFA’s publication of this report (Kentucky Pretrial Risk Assessment Instrument Validation), the AOC’s Manual Pretrial Interview, Investigation and Risk Assessment has been proven a key component of Kentucky’s transition toward “evidence-based practices” for making bond decisions. 

Read the entire AOC announcement

Kentucky Pretrial Risk Assessment Instrument Validation

AOC’s Manual Pretrial Interview, Investigation and Risk Assessment

Contributed by Scott West

PJI Releases State of the Science of Pretrial Release Recommendations and Supervision

Earlier this year, the Bureau of Justice Assistance (BJA) and Pretrial Justice Institute published the document, State of the Science of Pretrial Risk Assessment. That document focused on what the field knows about our ability to predict the likelihood of failure to appear in court or rearrest on new charges among pretrial defendant populations. It described the great strides that the field has made in assessing risks of pretrial misconduct, as well as the challenges that researchers face in validating pretrial risk assessment instruments, and guidance on how they can face those challenges.

This document, State of the Science of Pretrial Release Recommendations and Supervision, has a different focus. It picks up where the first document left off. The document was also funded by BJA and asks the next question: now that we know so much more about predicting risks of pretrial misconduct, how can we use that information to better assure that defendants are appropriately matched to conditions of pretrial release that are designed to minimize their identified risks?

 

  

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