Featured Case - Agreeing to leave the county

The order of the court probating a twelve-month sentence on the condition that the defendant leave the county violated the defendant's right of free travel.  Nevertheless, since the defendant did not object to the imposition of that condition at the it was imposed, the judgment of conviction survived and it was not a violation of the defendant's constitutional rights to revoke the probation and order the defendant to serve the twelve months.  Butler v. Commonwealth, 304 SW3d 78 (Ky.App.2010).

Contributed by Glenn McClister

Preliminary Draft of Criminal Justice and Forensic Science Reform Act

The office of Senator Patrick Leahy (D-Vermont), Chair of the Senate Judiciary Committee, has released the preliminary draft Criminal Justice and Forensic Science Reform Act (CJFSRA) (full text).

From Senator Leahy's office

Senator Leahy plans to introduce forensic science reform legislation early next year.  Please find attached a PDF of draft forensic science reform legislation.  We suspect that there will be minor modifications to this draft prior to introduction, but the core of the bill will likely remain the same.  We do want to make clear, though, that this will be an ongoing and collaborative process, and there will be significant additional opportunities for discussion and improvement after the bill is introduced.

Capital Defense Weekly - Dec 28

Full edition

Parramore Sanborn v. Parker, 2010 U.S. App. LEXIS 25912;2010 FED App. 0389P (6th Cir. 12/21/2010)** “In defendant’s petition for habeas relief from his capital murder conviction, district court’s denial for the most part but grant in part on the grounds that the admission of certain testimony at the penalty phase constituted unconstitutional governmental interference with the right to counsel in violation of the Sixth Amendment, is affirmed in part, reversed reversed in part, and remanded where: 1) because the defendant has not demonstrated that the use of a witness’s testimony during his trial was a constitutionally impermissible intrusion, nor that it was prejudicial, the Kentucky Supreme Court did not act contrary to Weatherford or any other clearly established federal law in holding that the Commonwealth’s use of that testimony did not violated his rights to counsel, and as such, district court’s grant of habeas relief on those grounds is reversed; 2) the Kentucky Supreme Court’s decision on defendant’s claim of interference with attorney-client and priest-penitent privileges was predicated on its determination, as a matter of state law, that neither Kentucky’s attorney-client privilege nor its priest-penitent privilege extended to defendant; 3) evidence at defendant’s second trial was constitutionally sufficient to prove beyond a reasonable doubt the existence of the aggravating factors of rape and sodomy; 4) defendant’s second state court trial did not violate his Fifth Amendment rights by placing him in double jeopardy; and 5) defendant’s Sixth Amendment right to effective assistance of counsel during the guilt phase of trial was not violated.” [via FindLaw]

New ABA task to study broad implications of Padilla on criminal defense practice

ABA to Study Changing Role of Criminal Defense Lawyers Post-'Padilla' 

New York Law Journal

The new ABA task force will look not only at the specific obligations created by the Padilla decision and other rulings applying it, but also at the broader implications for the role of defense lawyers.

Bruce Green, a Fordham University School of Law professor and chair of the ABA's criminal justice section, said the bar group has already collected data on the collateral consequences of criminal convictions that have an "extraordinary impact" on clients' lives.

"Padilla raised the level of consciousness," said Mr. Green. "It has reminded lawyers that they must learn about, and advise clients about, the impact of a guilty plea on their immigration status and in other significant ways beyond sentencing."

Mr. Green said the new task force is needed "because clients need more than good advice about the consequences of a guilty plea. The task force will ask what else lawyers can do to assist criminal defendants with current civil legal problems or non-legal problems related to the criminal case."

Mr. Green added, "Criminal defense lawyers might help by broadening the scope of their representation beyond the criminal case or by making referrals to, and collaborating with, other professionals. The task force will study how lawyers and their offices address these situations, often in the face of time and resource limitations."

ABA Padilla Resource Page

Tom Handy and Guthrie True on the need for penal code reform in Kentucky

Kentucky needs to control rising cost of corrections - Lexington  Herald-Leader

The article concludes with: 

And so you find a prosecutor and defense attorney coming together — with legislators, state and local officials and the chief justice of the Kentucky Supreme Court — in an effort to chart a course that will make a positive difference. The task force plans to issue its recommendations to the state legislature in January and the focus will be clear: getting Kentuckians a better return on their public safety dollars through policy options that protect public safety and hold offenders accountable, while controlling corrections costs.

Featured Case - Establishing jurisdiction in habitual truancy cases

Juvenile and family courts get subject matter jurisdiction to hear complaints of habitual truancy by a complaint which complies with the requirements of KRS 630.069(2) and by the school performing an adequate assessment of the child prior to bringing the complaint.  If these requirements are not met, the courts have no jurisdiction and the court designated worker should not even receive the complaint.  N.K. v. Commonwealth, 2010 WL 4026085, Court of Appeals, decided 10/15/2010

 

Contributed by Glenn McClister

New edition of Capital Defense Weekly is now available

Capital Defense Weekly

Leading off this edition is the Sixth Circuit's decision in  Archie Dixon v. Houk. In that decision the panel held that the police in Mr. Dixon's case improperly questioned first and warned later. As Ohio lawyer & blogger Russ Bensing notes, "[c]entral to the court’s decision was not only that the police had deliberately decided not to give warnings before the first custodial interrogation, but that the trial court, which had originally suppressed the confession, found the police weren’t telling the truth about their claim that [Mr. Dixon] had told them he’d talked to his lawyer and his lawyer had advised him to tell the police what happened.  (The state made an interlocutory appeal to the 6th District, which reversed the suppression and sent the case back for trial.)   Although the Ohio Supreme Court had found to the contrary in affirming the conviction and death sentence, the court has a point in noting that the trial judge was in the best position to make that determination, given its ability to hear and see the witnesses, and besides, no attorney in his right mind would have ever given that advice."

Discussion on Penal Code Reform tonight on KET

On the Monday, Dec. 20 edition of “Kentucky Tonight” at 8 p.m. ET on KET1 and at www.ket.org/live, host Bill Goodman and guests will discuss the state’s penal code.

Scheduled guests are state Sen. Tom Jensen, R-London, chiar of the Senate Judiciary Committee and co-chair of the 2010 Task Force on the Penal Code and Controlled Substances Act; state Rep. John Tilley, D-Hopkinsville, chair of the House Judiciary Committee and co-chair of the 2010 Task Force on the Penal Code and Controlled Substances Act; state Justice and Public Safety Secretary Michael Brown and Kentucky Supreme Court Chief Justice John Minton.

KY Court of Appeals Dec 10, 2010 Minutes

2010 Minutes for December 10 , 2010 (Nos. 1150-1184)

Criminal Law related published opinions

PROBATION.
MILLER (ELMER DAVID) VS. COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND WHITE (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-000296-MR
TO BE PUBLISHED
LINCOLN

THOMPSON, JUDGE: Elmer David Miller appeals an order of the Lincoln Circuit Court extending his probation beyond the maximum statutory two-year period for a misdemeanor conviction. For the reasons stated, we reverse and remand.

PROBATION.
MILLER (SHAWN) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
HENRY (CONCURS)(SENIOR STATUS JUDGE) AND TAYLOR (CONCURS IN RESULT ONLY)
2009-CA-002027-MR
TO BE PUBLISHED
MADISON

LAMBERT, JUDGE: Shawn Miller appeals from an order of the Madison Circuit Court revoking his probation. For the following reasons, we affirm.

 

Facebook, Twitter and smart phones cause mistrials, appeals and overturned verdicts

One tweet every three minutes from people saying they are on jury duty.

As jurors go online, U.S. trials go off trackReuters

Reuters Legal, using data from the Westlaw online research service, a Thomson Reuters business, compiled a tally of reported decisions in which judges granted a new trial, denied a request for a new trial, or overturned a verdict, in whole or in part, because of juror actions related to the Internet.

The data show that since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct. More than half of the cases occurred in the last two years.

Judges granted new trials or overturned verdicts in 28 criminal and civil cases — 21 since January 2009. In three-quarters of the cases in which judges declined to declare mistrials, they nevertheless found Internet-related misconduct on the part of jurors. These figures do not include the many incidents that escape judicial notice.