KY COA July 27 - Douglas - KASPER records

Veronica Douglas v. Com., 2011-CA-000066-MR, 2012 WL 3054118 (Ky. App. July 27, 2012) (to be published)-

The Court of Appeals reversed Ms. Douglas’ second degree manslaughter conviction after a doctor called by the prosecutor as an expert was improperly allowed to testify to prejudicial information from KASPER records about multiple prescriptions Douglas had for painkillers when those drugs were not found in her system at the time of the accident.

Douglas questioned on appeal that KRS 218A.202 was violated by the disclosure of Douglas’ KASPER records to not only the prosecutor’s expert witness but also to the prosecutor himself without a court order. The Court of Appeals held that indeed the prosecutor and the doctor hired by the Commonwealth should not have been given Douglas’ KASPER report. The Court noted that this constituted a felony under KRS 218A.202 (12) by the persons transmitting the report to those people. (This statute has since been amended to make the first offense a Class B misdemeanor and each subsequent offense a Class A misdemeanor.)

The Court held:

In the present case, neither the prosecutor nor Dr. Davis qualified under KRS 218A.202 as a person authorized to receive the KASPER report. We pause to note that this is disconcerting because this appears to be a recurring problem in the Commonwealth, i.e., that prosecutors and other unauthorized people are being provided copies of KASPER reports without court orders directing those people to be given such reports, see Bartlett, 311 S.W.3d at 228 n. 2, without fear of prosecution.


Id. at 9.


Defense attorneys should be familiar with the provisions of KRS 218A. 202 and the cases interpreting KASPER and object if it appears that the prosecutor, police or any other persons have been illegally supplied with a KASPER record for their client

Contributed by Kathleen Schmidt

ABA Journal - Race Matters in Sentencing, Study Suggests

Researchers say they their new study suggests a reason why African Americans are overrepresented in prison. Black defendants are more likely to be sentenced to prison than whites, on average, but the racial gap is even more pronounced among some judges, suggesting that race is influencing the decision, the study found.

The researchers studied judicial variations in sentencing in felony cases from Cook County, Ill., which includes Chicago. “Race matters in the courtroom,” says the study posted as SSRN. Differences in sentencing by race across judges “suggests that courtroom outcomes may not be race blind. This may be one source of the substantial overrepresentation of African-Americans in the prison population.”

Complete article about study

Do Judges Vary in Their Treatment of Race, set for publication in The Journal of Legal Studies

KY COA July 20 - Southwood - Probation Revocation

Southwood v. Commonwealth, 2011-CA-001277-MR (Decided July 20, 2012; To be published)

The Court of Appeals found that there was no abuse of discretion where the trial court did not make a specific finding of fact that the defendant could not be appropriately managed in the community.

Leslie Southwood pled guilty to arson in the second degree.  About a month later he was sentenced to twenty years probated for five years. A condition was imposed that Southwood’s probation included that he remain in the area of supervision within Breathitt County and that he would commit no new offense while on probation.  Southwood was later arrested in Perry County and charged with possession of a controlled substance in the first degree, carrying a concealed deadly weapon, and operating a motor vehicle under the influence.

At the probation revocation hearing, the only witnessed called was the probation officer. The probation officer testified that Southwood was not supposed to leave the county except for emergency medical treatment. The court was also made aware of a pending assault charge against Southwood  in Breathitt District Court for allegedly assaulting his mother.  It was further suggested that he may have been involved in a shooting incident involving his brother.  The trial court revoked Southwood’s probation.

Southwood filed a motion to alter, amend or vacate the order pursuant to KRS. 439.3106, pursuant to a statute that had been enacted on June 8, 2011, two days prior to his revocation hearing.  Southwood argued that the statute required the court to make a finding that he could not “be appropriately managed in the community.” The trial court found that they very nature of the pending charges in Perry County were sufficient to revoke his probation and deny the motion.

The Court of Appeals Affirmed, citing KRS 439.3106(2) discussing severity of the violation behavior and risk of future criminal behavior. The Court further noted that Commonwealth v. Alleman, 306 S.W.3d 484, 488 (Ky. 2010) was applicable to the instant case, where the sole testimony introduced was that the defendant absconded.

Contributed by Jason Apollo Hart

KY COA July 20 - Southwood - Probation Revocation

Southwood v. Commonwealth, 2011-CA-001277-MR (Decided July 20, 2012; To be published)

The Court of Appeals found that there was no abuse of discretion where the trial court did not make a specific finding of fact that the defendant could not be appropriately managed in the community.

Leslie Southwood pled guilty to arson in the second degree.  About a month later he was sentenced to twenty years probated for five years. A condition was imposed that Southwood’s probation included that he remain in the area of supervision within Breathitt County and that he would commit no new offense while on probation.  Southwood was later arrested in Perry County and charged with possession of a controlled substance in the first degree, carrying a concealed deadly weapon, and operating a motor vehicle under the influence.

At the probation revocation hearing, the only witnessed called was the probation officer. The probation officer testified that Southwood was not supposed to leave the county except for emergency medical treatment. The court was also made aware of a pending assault charge against Southwood  in Breathitt District Court for allegedly assaulting his mother.  It was further suggested that he may have been involved in a shooting incident involving his brother.  The trial court revoked Southwood’s probation.

Southwood filed a motion to alter, amend or vacate the order pursuant to KRS. 439.3106, pursuant to a statute that had been enacted on June 8, 2011, two days prior to his revocation hearing.  Southwood argued that the statute required the court to make a finding that he could not “be appropriately managed in the community.” The trial court found that they very nature of the pending charges in Perry County were sufficient to revoke his probation and deny the motion.

The Court of Appeals Affirmed, citing KRS 439.3106(2) discussing severity of the violation behavior and risk of future criminal behavior. The Court further noted that Commonwealth v. Alleman, 306 S.W.3d 484, 488 (Ky. 2010) was applicable to the instant case, where the sole testimony introduced was that the defendant absconded.

Contributed by Jason Apollo Hart

New Model Instructions to Jurors on Social Media Use

The Judicial Conference Committee for the federal courts has recently updated its instructions regarding jurors and social media.  These new instructions are available here

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, the Conference Committee on Court Administration and Case Management (CACM) chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."

Another resource is GOOGLE, GADGETS, AND GUILT: JUROR MISCONDUCT IN THE DIGITAL AGE by Thaddeus Hoffmeister

[T]he Article explores possible steps to limit the negative impact of the Digital Age on juror research and communications. While no single solution or panacea exists for these problems, this Article focuses on several reform measures that could address and possibly reduce the detri-mental effects of the Digital Age on jurors. The four remedies discussed in this Article are (1) pe-nalizing jurors, (2) investigating jurors, (3) allowing jurors to ask questions, and (4) improving juror instructions. During the discussion on jury instructions, this Article analyzes two sets of jury instructions to see how well they adhere to the suggested changes proposed by this Article. This is followed by a draft model jury instruction.

New DPA Office Opens in Harlan - The Harlan Daily Enterprise

New Harlan County Public Defender’s Office opens

The Public Defender’s Office, a division of the Department of Public Advocacy, has opened new offices at 120 Professional Lane in Harlan.

Project Manager and Attorney Daniel Schulman and Senior Attorney Laura Karem have been assigned to handle the case load in the Harlan office. Administration Specialist Traci Bowman and Investigator Jennifer Gibson are also on staff.

KY COA July 20 - Southwood - Probation Revocation

Southwood v. Commonwealth, 2011-CA-001277-MR (Decided July 20, 2012; To be published)

The Court of Appeals found that there was no abuse of discretion where the trial court did not make a specific finding of fact that the defendant could not be appropriately managed in the community.

Leslie Southwood pled guilty to arson in the second degree.  About a month later he was sentenced to twenty years probated for five years. A condition was imposed that Southwood’s probation included that he remain in the area of supervision within Breathitt County and that he would commit no new offense while on probation.  Southwood was later arrested in Perry County and charged with possession of a controlled substance in the first degree, carrying a concealed deadly weapon, and operating a motor vehicle under the influence.

At the probation revocation hearing, the only witnessed called was the probation officer. The probation officer testified that Southwood was not supposed to leave the county except for emergency medical treatment. The court was also made aware of a pending assault charge against Southwood  in Breathitt District Court for allegedly assaulting his mother.  It was further suggested that he may have been involved in a shooting incident involving his brother.  The trial court revoked Southwood’s probation.

Southwood filed a motion to alter, amend or vacate the order pursuant to KRS. 439.3106, pursuant to a statute that had been enacted on June 8, 2011, two days prior to his revocation hearing.  Southwood argued that the statute required the court to make a finding that he could not “be appropriately managed in the community.” The trial court found that they very nature of the pending charges in Perry County were sufficient to revoke his probation and deny the motion.

The Court of Appeals Affirmed, citing KRS 439.3106(2) discussing severity of the violation behavior and risk of future criminal behavior. The Court further noted that Commonwealth v. Alleman, 306 S.W.3d 484, 488 (Ky. 2010) was applicable to the instant case, where the sole testimony introduced was that the defendant absconded.

Contributed by Jason Apollo Hart


Kentucky Pretrial Services Legislative Impact Report

Kentucky Pretrial Services recently published, Report on Impact of House Bill 463: Outcomes, Challenges and Recommendations. The purpose of the report is to measure the impact of HB 463, which implemented sweeping changes to many aspects of the criminal justice system in Kentucky. The report examined data a year prior and a year after implementation and found that as the number of monitored conditional releases went up, pretrial failures decreased. 

Justice Department to review forensic evidence used in thousands of cases - Washington Post

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.

The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled.

Read the complete story

KY COA July 6 - Denny - IAC of PC Counsel

Denny v. Commonwealth, 2011-CA-1232 (Decided July 6, 2012; unpublished)

             Brad Denny pled guilty to murder and was sentenced to LIFE in prison.  He filed a pro se RCr 11.42 motion which the circuit court denied without holding an evidentiary hearing.  His case was reversed by the Court of Appeals and remanded for a hearing.  The circuit court held a hearing and again denied his RCr 11.42 motion. 

In the instant action, Denny claimed in a CR 60.02 motion that he received ineffective assistance of post-conviction counsel due to failure to raise substantial issues in the RCr 11.42 motion.  The Court of Appeals denied the claim, stating that he should have raised the claims in his RCr 11.42 action.  While the Court did give lip service to the United States Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), it ultimately refused his claim based on the holding of the Kentucky Supreme Court in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010) that Kentucky has held that there cannot be a valid claim for ineffective assistance of post-conviction counsel because by Kentucky law, he has no right to the assistance of post-conviction counsel.

In essence, as the Court of Appeals stated, “Because Denny’s ineffective assistance of trial counsel claims could have been asserted in his RCr 11.42 motion, the law in Kentucky states that his CR 60.02 motion fails.”

In a dissent, Justice Stumbo stated, “I would reverse and remand for appointment of counsel so that the trial court can determine whether Appellant can demonstrate ‘that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.’”  Martinez, 132 S.Ct. at 1318.

 Contributed by Karen Maurer