Louisville judge rejects death sentence - “He will wish this court had put him on death row.”

Life in prison worse than death sentence for Cecil New, judge says  - Louisville Courier Journal

Saying the death penalty was not a harsh enough punishment, a judge ordered for Cecil New II to serve the rest of his life in prison, surrounded by “bigger, meaner men who have nothing to lose.”

“He will fear for his life every day,” Judge Judith McDonald-Burkman told the family of 4-year-old Ivan Aguilar-Cano, who disappeared while playing outside his home near Churchill Downs in 2007 and was murdered by New.  “He will wish this court had put him on death row.”

Since a November hearing in which prosecutors asked that New be sentenced to death, McDonald-Burkman said she had investigated the differences between the life of a death-row inmate and one serving a life sentence.  On death row, she said, inmates are segregated from other prisoners and can have meals sent to their cell without ever having to be around anyone else, and typically an execution is not scheduled for at least 20 years. With the life sentence, New must congregate with other prisoners and “is never truly isolated.”

“Death is undoubtedly justified for you,” the judge told New. “There’s not one cell in your body, Cecil New, that can be rehabilitated, not one. But is a death sentence justice?”  The unusually frank language from McDonald-Burkman included scenarios on how New’s life would play out in the general population.  “Death is easy,” she said.  “Living outside of death row, in general population in fear of prison justice every day is a hell more suited to you, Mr. New, than living under the protective guise of death row.”....

On Oct. 14, the day before his trial, New surprised many by pleading guilty to charges of murder, kidnapping, tampering with physical evidence and unlawful transaction with a minor.  However, New did not negotiate a plea bargain and entered what is known as an open plea, which made him eligible to receive the death penalty and waiving his right to an appeal.

Assistant Commonwealth's Attorney Jon Heck had asked McDonald-Burkman on Nov. 16 to give New the death penalty, saying he deserved to die for his actions. But Jay Lambert, New's attorney, argued that New's life should be spared because of a horrific childhood that, at least in part, helped make him into who he is.

After the sentencing, Heck said he agreed with the judge’s reasoning that the life sentence was the greatest penalty.  “He will serve out his life a tormented man,” Heck said. “And I think he deserves that.”

 

Kentucky Supreme Court December opinions

December 16 Supreme Court Minutes

Click above link to view complete minutes and links to full opinions

Criminal Law related "Questions Presented" in this month's published opinions include

Reaffirmation of the court’s longstanding position that, under KRE 201, a trial judge is prohibited from relying on personal experience to support the taking of judicial notice.

Search and Seizure. Co-tenant Consent. At issue is warrantless police search of home during Cabinet for Families and Children's investigation based upon co-tenant's alleged consent.

First-degree complicity to trafficking in a controlled substance and second-degree persistent felony offender-20 years. Impeachment by criminal conviction is governed solely by KRE 609. KRE 608(b) permits impeachment only by specific instances of conduct that have not resulted in a conviction. No palpable error in witness’ impermissible interpretation of what was on a drug buy tape.

Wanton murder and first-degree criminal abuse-20 years. Trial court did not err in refusing to strike a potential juror who had been subjected to sexual abuse as a child nor in admitting evidence of a social worker’s video-recorded out-of-court experiment involving the victim’s brother. Evidence of defendant’s mild retardation did not preclude the jury’s finding that he acted wantonly.

First-degree robbery, first-degree burglary, first-degree PFO-25 years. Trial court properly refused to give instructions on second-degree robbery and second-degree burglary. A second evidentiary hearing was not required on defendant’s motion to suppress DNA evidence where he belatedly alleged that his DNA profile was illegally entered into CODIS.

First-degree robbery, possession of a handgun by a felon, possession of a defaced firearm, and first-degree PFO. Trial court erred in imposing court costs and fines on indigents. Combination instructions used herein did not deprive defendants of unanimous verdicts on robbery and PFO charges.

Sentencing. Finality of Sentences. Double Jeopardy. At issue is plea agreement in which defendant agreed to increasing sentence if probation terms were violated

Sentencing. At issue is whether sentencing error may be corrected, implicating whether nature of error was judicial or clerical, and whether the error involved an illegal sentence.

Trial court erred in denying defendant’s motion to suppress his confession, where the facts showed that defendant had unequivocally invoked his right to counsel and the police had improperly continued questioning.

American Constitution Society releases issue brief on misdemeanors

“Diverting and Reclassifying Misdemeanors Could Save $1 Billion per Year: Reducing the Need For and Cost of Appointed Counsel,” an Issue Brief by Robert C. Boruchowitz, Professor from Practice and the Director of the Defender Initiative at Seattle University School of Law.  

In his issue brief, Professor Boruchowitz discusses the heavy burden placed on the criminal justice and indigent defense systems around the country by the approximately ten million misdemeanor cases filed each year in state and municipal courts. He observes that minor, non-violent offenses can make up between 40% and 50% of the caseload in some courts and that in addition to the cost of courts, judges, prosecutors, and defense lawyers, “taxpayers expend on average $80 per inmate per day to lock up people accused of things like turnstile jumping, fish and game violations, minor in possession of alcohol, dog leash violations, driving with a suspended license, and feeding the homeless.” Professor Boruchowitz highlights diversion programs and reclassifications efforts from around the country that have been very successful in alleviating the burdens and costs imposed by these cases and argues that the U.S. Department of Justice could help advance these reforms through providing education about their benefits and supporting their expansion around the country. He concludes that “[b]y diverting or reclassifying these offenses as non-criminal violations, local and state governments could save hundreds of millions, perhaps more than $1 billion per year. In the process . . . the reduced burdens on millions of defendants would allow them to work and to meet their obligations, and the unfairness related to racial disparity would be reduced.”

P & A Director Marsha Hockensmith calls for more autopsies and death reviews done for the mentally disabled and mentally ill l

Marsha Hockensmith, director of Protection and Advocacy, told the Interim Committee on Health and Welfare the state currently reviews deaths of the mentally disabled and mentally ill in state-run facilities and can review deaths of disabled people in some community-based settings. Protection and Advocacy is a state agency that advocates for the disabled.

However, more needs to be done to ensure those who receive services in community-based settings are not dying as a result of abuse, neglect or other preventable diseases, Hockensmith said.

Law Review examines judiciary's role after NAS report on forensic evidence

Jane Campbell Moriarty University of Akron School of Law

from Abstract:     

This Article discusses the findings of the NAS Report, relevant cases that predate the report, and some cases decided since the report. It posits that the judiciary, which has created a standard of reliability, has failed to hold prosecutorial expert evidence to that standard. Using examples from history and modern cognitive science explanations, the Article tries to explain why the judiciary has been so unwilling to rigorously examine forensic science evidence and urges the judiciary to rethink its perspective going forward.

While the NAS Report suggests an overhaul of the current system, that overhaul is a contentious idea that may well not occur in the near (or even longer) future. Thus, a current crisis exists that the judiciary must address in its day-to-day decision making. The Article suggests how the judiciary can become a more effective crucible for testing the strength and limitations of forensic science.

DOJ Office of Immigration Litigation Issues Reference Guide to Immigration Consequences of Crimes

The Court’s holding in Padilla requires defense counsel to have a basic understanding of immigration law – an area in which they “may not be well versed” – in order to effectively advise their clients. Padilla, 130 S. Ct. at 1483. The decision is also of obvious importance, however, to federal and state prosecutors and judges, among other interested parties. This guide – to which many OIL attorneys have contributed – presents a brief, cogent, and clear introduction that identifies and summarizes the relevant statutes.

REVISED Padilla v. Kentucky Reference Guide 11-8-10

 

Department of Public Advocacy defends the Kentucky Supreme Court’s decision limiting law enforcement’s ability to conduct warrantless searches of a person’s home in the United States Supreme Court.

In Kentucky v. King, No. 09-1272, the United States Supreme Court is reviewing a case unanimously decided by the Kentucky Supreme Court on the issue of whether our Fourth Amendment has been violated by the actions of the police. The brief for Mr. King was filed December 13, 2010.

The issue is: can police force their way into a residence to arrest a citizen without obtaining a warrant from a judge when no real emergency exists except for the emergency they claim exits which was created exclusively by the police’s deliberate action.

 Click here to read the full document

The Jury Expert - Police Deception during Interrogation and Its Surprising Influence on Jurors' Perceptions of Confession Evidence


by Krista D. Forrest, William D. Woody
Krista Forrest and William D. Woody review the literature on police deception in interrogation and review a recent study of juror perceptions and decisions in cases involving confessions and police deception. Two experienced trial consultants respond with reactions based on years of experience in this area.

Full Article 

Recommendations from the authors

Our improved understanding of jurors' perceptions of and decisions about cases involving police deception during interrogation suggests a series of practical recommendations for litigators. What factors should attorneys consider when going to trial in the cases involving confessions and police deception during interrogation?

1.  Defense attorneys should attempt to introduce an expert witness in the area of false confessions to educate jurors about the little-known, manipulative, and potentially deceptive nature of police interrogation. Rather than focusing primarily on the defendant, we recommend that defense attorneys focus instead on how interrogation strategies in general and false-evidence ploys in particular have been shown to influence voluntariness and even elicit false confessions in laboratory studies and archival cases.

2.  If the interrogation includes police deception in general or false-evidence ploys in specific, defense attorneys should interview the police officers who interrogated the defendant. Defense attorneys should assess the extent to which these deceptive techniques are considered typical in that officer's working climate and the degree to which deception is involved, if at all, in the particular case.

3.  If audio or video evidence of the interrogation has not been suppressed and the interrogators used false-evidence ploys, defense attorneys should identify and discuss each ploy for the jury.

4.  In addition to explicit false-evidence ploys, as discussed in this paper, in which investigators explicitly claim to have nonexistent evidence, we also encourage defense attorneys to seriously evaluate implicit false-evidence ploys, called bait questions by Inbau et al. (2001) and Jayne and Buckley (1999). Inbau et al. (2001) state that an implicit false-evidence ploy "is nonaccusatory in nature but at the same time presents to the subject a plausible probability of the existence of some evidence implicating him in the crime" (p. 193). For example, if a suspect has denied that he or she was near the crime scene, an investigator might ask whether the suspect would appear on a hidden camera at the scene without directly claiming that such a recording exists or has been evaluated by police. In an implicit false-evidence ploy there is not an explicit lie about evidence, and legal scholars and social scientists have only recently begun to examine these deceptive interrogation tactics (Gohara, 2006, Forrest, Woody & Hille, 2010; Perillo & Kassin, 2010). Explicit and implicit claims of evidence are legally distinct. For example, Inbau et al. (2001) and Jayne and Buckley (1999) extensively discuss and defend the legality of explicit false-evidence ploys, but neither examines the legality of implicit false-evidence ploys. Despite these distinctions, both explicit and implicit false-evidence ploys induce false confessions at similar rates (Perillo & Kassin, 2010), and jurors cannot distinguish between them (Forrest et al., 2010). In other words, even if investigators used a seemingly less deceptive implicit false-evidence ploy, defense attorneys should have the same concerns that they would have regarding an explicit false-evidence ploy.

5.  Prosecutors should advise police detectives about the potential trial outcomes that stem from deception during interrogation. Not only do false-evidence ploys increase the likelihood of false confessions in experimental studies as well as in the archival data, false-evidence ploys may also lead a jury to perceive the interrogation as more deceptive and coercive. Police deception only marginally decreased the likelihood of conviction in this study, but these changes in jurors' perceptions of deception and coercion raise important concerns. If police interrogators know that deception may reduce the chance of a conviction and lead to shorter sentences for confessing defendants, interrogators may choose to avoid deception during interrogation to reduce these risks. We have an ongoing study to evaluate whether judges are subject to these biases in sentencing.

6.  When appropriate, voir dire should include questions concerning false confessions and the degrees to which jurors see themselves and others as capable of making a false confession. As we found, jurors who believe that false confession is possible for others or for themselves are less likely to convict than are jurors who believe the myth of psychological interrogation (Woody et al., 2010).

7.  Although the study discussed here assessed jurors' perceptions and decisions, we recommend that judges use caution when deciding whether to admit disputed confessions into trial, particularly when a confession follows police deception. We raise these concerns here due to potential effects on jurors, but we strongly recommend that judges consider the experimental and archival evidence that demonstrates that false confession becomes more likely when interrogators use false-evidence ploys (Stewart, Woody, & Pulos, 2010).

Can someone be charged in one county for receiving stolen property and with theft by unlawful taking of the same property or receiving that same property in another county?

No.  The Supreme Court of Kentucky in Jackson v. Commonwealth, Ky., 670 S.W.2d 828 (1984) (overruled on other grounds, Relied on the Blockburger test and decisions which predated the penal code, to hold that one who was convicted of theft by unlawful (KRS 514.030(1)(a)) taking could not also be convicted of Receiving Stolen Property (KRS 514.110). The Court reasoned that one who steals property must of necessity have knowledge that the property was stolen and that the offenses merged.
The Court later held in Cooley v. Com. 821 S.W.2d 90 Ky.,1991 that if items are stolen in one county but are retained or disposed of in a different county double jeopardy blocks the later prosecution.  This case also does a great explanation of how a Double Jeopardy issue is to be analyzed (dealing with subsequent receiving convictions in multiple counties).

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

New resource collecting data on prosecutorial misconduct - The Veritas Initiative

Launched in the fall of 2010 with the release of the most comprehensive statewide study ever undertaken on prosecutorial misconduct in both state and federal courts, the Veritas Initiative is the ongoing watchdog entity of the Northern California Innocence Project (NCIP) at the Santa Clara University School of Law. The Veritas Initiative is dedicated to advancing the integrity of our justice system by researching and providing critical data that shines a light on such crucial issues as the aforementioned misconduct of public prosecutors. Through its relentless research efforts conducted by leading experts from NCIP, the Veritas Initiative foresees its first and future studies serving as major catalysts for reform.