Featured Case - Birdsong - Robbery and "force" not aimed at victim

Birdsong v. Commonwealth, 2009-SC-000084— rendered April 21, 2011.

Opinion of the Court Affirming (no justice named).

Venters, J., dissents by separate opinion in which Minton, C.J., joins.

In this case, the Kentucky Supreme Court held that a person can be found guilty of second-degree Robbery as long as “force” is used, even if that force is not aimed at a victim, but is instead aimed at inanimate objects.  Mr. Birdsong, after ordering bank tellers in a loud voice to give him the money, slammed through the teller door and pushed computer equipment on the ground.  Two tellers testified that they felt threatened.  In determining the definition of the word “threaten,” the Court used a definition from the American Heritage Dictionary, which defined the word as “1 . To express a threat against. 2 . To be a source of danger to; menace. 3 . To portend. 4. To indicate danger or harm ." American Heritage Dictionary 840 (3d ed. 1992).  Moreover, a "threat" is "l . An expression of an intention to inflict pain, injury, or evil. 2 . One regarded as a possible danger." Id.  There were two dissenters, who noted that the General Assembly intended that the word “threaten” be considered an active word, describing the actions of the accused, rather than a passive word which includes the impressions of the victims. 

Contributed by Brandon Jewell

 

John Adams: Founding Defender

The ABA celebrates Law Day this year by picking an individual attorney for its theme – something that has only happened once before since Law Day began in 1958.  In 2009 the ABA picked Abraham Lincoln as its Law Day “hero” – 2009 being the bicentennial of Lincoln’s birth.  This year the ABA has chosen John Adams for his lifelong dedication to the fact that even the most unpopular among us must be given due process and adequate representation. 

For a short article on Adam’s importance, see this ABA Journal
John Adams Gets His Day: The First Lawyer-President Set a Standard for Representing Unpopular Causes

Contributed by Glenn McClister

DPA District Court Manual Now Updated to Include HB 463 Other New Legislation

The third edition of the District Court Manual (47 pages) is now available. 

Revised to include the new pretrial risk assessment scoring used by AOC as of March 1, 2011 and to include all the new provisions of HB121 and HB463 which apply to district court practice – including the very important new provisions regarding arrest, bail and the changes to enhanceable offenses.  The relevant caselaw is up to date and new sections on appealing bail in district court and on earning credit toward old fines and costs under HB 463 have also been included.

Contributed by Glenn McClister  

Featured Case - Equivocal Jurors

In Lemaster v. Com., an unpublished 4/21/11 decision by the Kentucky Supreme Court, the Court granted a new trial for failure to strike a juror who said she would require the defendant to present evidence of his innocence.  More interesting is the fact that the Lemaster Court ducked a second juror challenge, where it was argued the juror's answers were "equivocal."  And in another case decided by the Court on 4/21/11 the Court glossed over another challenge to an “equivocal” juror, when they could have squarely denied it.


Trial attorneys should be moving to strike all equivocal jurors who say, merely, "I hope I could be fair" or "I think I could be fair" or "I'll try my best to be fair."  It appears the Kentucky Supreme Court might be open to considering the issue if properly preserved.  Cf., Burnett v. Com., 2008 WL 746615, 4 (Ky. 2008) (Unpublished), in which the Kentucky Supreme Court analyzes the nature of equivocal responses in the context of a request for counsel, and held that ambiguous, equivocal words like “I don’t know,” and “I’m not really with the laws and stuff” cannot constitute a legally effective request for counsel.

Contributed by Susan Balliett

Use of Out of State Convictions as Enhancer

If the Commonwealth is attempting to use an out-of-state conviction (either felony or misdemeanor) to enhance an offense in Kentucky, there must be statutory authority for such use.  This was the finding of the Court of Appeals in Suttle v. Com.Suttle deals specifically with the DUI statute but holds that if the legislature is silent concerning the use of convictions in foreign jurisdictions, then they shall not be used.  The statute for Failure to Register is as silent about the use of foreign convictions to enhance as the DUI statute was on that subject (the statute was amended for DUIs after this case was decided).  Suttle also contains good language about how misdemeanor records from other jurisdictions are not as well maintained as ours so your argument is even stronger is the prior offense is a misdemeanor in the state from which it came. 

“We observe that our general recidivist statute (KRS 532.080) is all-inclusive with respect to prior felony convictions. It specifically includes foreign convictions. KRS 189A.010 is silent with respect to DUI convictions from a sister state and, as such, we believe our interpretation of the subject statute is a fair one. Moreover, we observe that the treatment differs as to DUI among the various states. In addition, we envision a practicable problem in proving foreign misdemeanor convictions where records may not be as carefully maintained as in felony offenses. All of this leads us to the conclusion that a policy of using foreign convictions as a basis for enhancement of punishment under KRS 189A.010 is a matter more appropriately directed to the legislature for debate.”  Suttle v. Com., 774 S.W.2d 454 (Ky.App.,1989).

Contributed by La Mer Kyle-Griffiths, Juvenile Post Disposition Branch Manager

New Series on Eyewitness Misidentification

Brandon Garrett analyzes the fundamental issues surrounding eyewitness misidentification in a new series for Slate. After carefully studying the first 250 cases of wrongful convictions, Garrett-a law professor at the University of Virginia School of Law-notes that "eyewitness misidentifications were the single greatest cause of flawed evidence."

Garrett highlights the case of Ronald Cotton to pinpoint some of the key factors that cause faulty identifications. North Carolina college student Jennifer Thompson misidentified Ronald Cotton as her rapist, leading to Cotton spending 10 years in prison before DNA finally exonerated him in 1995.

Ronald Cotton and Jennifer Thompson will be featured speakers at the KBA 2011 Convention in Lexington on June 15th. 

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Jennifer Thompson-Cannino and Ronald Cotton

Wall Street Journal on Impact of State Budget Cuts and Indigent Defense

Public Defenders Stretched Thin by State Cuts  Wall Street Journal

States and counties struggling to balance their budgets are cutting spending on public defenders, a move some lawyers say is compromising criminal defendants' constitutional right to counsel.

Providing for that right, enshrined in a 1963 Supreme Court ruling, has grown increasingly expensive amid a dramatic rise in arrests and prosecutions in recent decades.

Spending on indigent defense rose from about $1 billion in 1986 to roughly $5.3 billion in 2008, according to a 2010 report released by the American Bar Association. The increase was partly in response to litigation challenging the adequacy of funding for indigent defense, lawyers said.

The austerity moves stemming from funding constraints these days include laying off public defenders, holding the line on salaries, and reducing spending on the defense's case investigators and staff training.

"The system is not allowing us to provide competent representation," said Edward Monahan, the head of the Kentucky Department of Public Advocacy, which lost about $500,000, or 1.5%, of its funding this year, and faces an additional 2.5% budget cut in the coming fiscal year.

"We are running caseloads in excess of 450 per lawyer....With additional budget cuts to be imposed in [2012] and case assignments continuing to rise, average caseloads will likely exceed 500 new cases per year."

Resources for Graduated Sanctions and Incentives - Reframing Futures Blog Post

juvenile-drug-courts_graduated-response-gridResearch has shown that punishment alone is not the most effective way to to help a young person change his or her behavior -- the primary goal of juvenile drug courts, and, indeed, juvenile probation generally. Instead, a combination of punishment, or sanctions, with incentives, is most effective.

But if you want to act on this information, you're likely to have a number of questions. Here's just a few of the questions that commonly arise:

  • 1. Is there a ready-made list of sanctions and incentives we could use?
  • 2. Should we start out giving a strong sanction to get the offender’s attention, or should we build up to that?
  • 3. Are we coddling offenders by giving them incentives?
  • 4. Does it matter how long you wait after the behavior is detected to give a sanction or incentive?

And that's just the beginning.  To help you make sense of the options -- and to give you several lists of ideas for your own graduated sanctions and incentives grid -- I'm posting a number of resources here.

From NCJFCJ (and shared with permission):

If your team is working on implementing incentives and sanctions together, you'll probably want these as well, also from the NCJFCJ:

No list like this, however, would be complete without acknowledging the work done by Reclaiming Futures' own Justice Fellows -- the probation officers who helped develop the Reclaiming Futures model in our ten foudning sites. In 2005, they created the colorful incentives/sanctions grid you see pictured in this post.

  • The Illustrative Graduated Response Grid
  • About the grid
    • "The Illustrative Graduated Response Grid is a tool that may be used by treatment providers, corrections personnel and judicial professionals, in responding appropriately to a youthful offender’s behavior."
    • Also, please note that the incentives and sanctions listed are just suggestions. Your community way choose different items.