Practice Advisory for Criminal Defense Attorneys: Certain Criminal Offenses May Bar Persons from Applying for the New Deferred Action Status Program Announced by President Obama

From: Immigrant Legal Resource Center – San Francisco, California

On June 15, 2012, the Obama Administration announced that it would not deport certain undocumented persons who entered the U.S. as children.

The Department of Homeland Security (DHS) has offered some initial guidance on the type of criminal offenses that will make a person ineligible to be granted deferred action.

Deferred action means that, even though the individual is undocumented and subject to deportation, the government agrees to defer any actions to remove them.

So, in essence, even though deferred action does not provide a pathway to getting lawful permanent resident status (a greencard) or citizenship, it will allow young people to remain in the U.S. and apply for a work authorization document from the government that entitles them to legally work in the U.S.

This advisory for criminal defense counsel outlines defense strategies to preserve a client’s possible eligibility for deferred action.

Download here

KY COA June 22 - Cozzolino - Directed Verdict in DUI case

THOMAS GEORGE COZZOLINO V. COMMONWEALTH, 2011-CA-000656-DG,

To-be-published, June 22, 2012,

Vacating the Jefferson Circuit Court’s reversal of a directed verdict granted by the Jefferson District Court. 

            Cozzolino was tried for the offense of DUI in the Jefferson District Court.  He made a mid-trial objection to evidence obtained by police following a Miranda violation.  The District Court held a suppression hearing, and suppressed much of the prosecution’s evidence.  The prosecution continued with its case-in-chief, after which, the District Court granted a directed verdict of acquittal for Cozzolino.  The Commonwealth appealed the acquittal to the Jefferson Circuit Court, which reversed the District Court’s judgment that the remaining evidence presented by the prosecutor at trial was insufficient to meet the standard for a directed verdict.  The Circuit Court remanded the case to the District Court for another trial, reasoning that double jeopardy did not apply because the first trial had been prematurely concluded as a result of the defendant’s own motion.

            The Court of Appeals vacated the Circuit Court’s decision.  Quoting from Derry v. Commonwealth, 274 S.W.3d 439, 444 (Ky. 2008), and United States v. Scott, 437 U.S. 82, 91 (1978), the Court held the granting of a directed verdict motion in favor of a defendant in a criminal case terminates the prosecution, and a second trial following an appeal by the Commonwealth would violated the Double Jeopardy Clause.  “The district court weighed the evidence presented by the Commonwealth and found it insufficient to convict.  The dismissal was not based on a mistrial; it was related to Cozzolino’s factual guilt or innocence.  …  [W]e find that Double Jeopardy prevents Cozzolino from being tried again for DUI.”

Contributed by Tom Ransdell

KY COA June 22 - Lemons - Applicaton of KRS 503.085 Self Defense Dismissal

BRIAN J. LEMONS V. COMMONWEALTH, 2010-CA-001942-MR, 2012 WL 2360131,

To-be-published, June 22, 2012,

Reversing with directions to dismiss the indictment. 

Reviewing the witness statements and police reports underlying Lemons’ KRS 503.085 claim of immunity from prosecution because he acted in self-defense, the Court of Appeals found that “the Commonwealth failed to present sufficient evidence to establish probable cause that Lemons’s use of force was unlawful.”  The Court went on to say that “the Commonwealth cannot meet this burden simply by asserting that a jury could reject the defendant's version of the facts. Otherwise, KRS 503.085 would not result in any meaningful change in the law in circumstances where a change was clearly intended.”

Witnesses here disagreed on many things.  But several witnesses corroborated that the so-called victim and his two brothers initiated the violence by knocking out Lemons’ friend (chipping three teeth and causing him to bleed profusely from his mouth), and picking up and throwing Lemons’ girlfriend to the ground.  No one but Lemons saw what happened next, when the so-called victim swiftly pinned Lemons against a car and Lemons defended himself by sticking him in the shoulder and back with his pocketknife.

Lemons pled to manslaughter and accepted a 14-year sentence conditioned on the appeal of his immunity motion.  Had he gone to trial, asserted self-defense, and lost, he could have raised on appeal both the denial of his immunity motion and insufficiency of the Commonwealth’s evidence controverting his claim of self-defense.  But a negative jury verdict on self-defense might have clouded the KRS 503.085 issue and made it harder to win.

TRIAL TIP:  This case is not final and may well be reviewed by the Kentucky Supreme Court.  Meanwhile, even if your case involves complex facts and witnesses who contradict each other, you should be filing pretrial motions under KRS 503.085 to dismiss the indictment when your client has a self-defense/defense of others claim.

Kudos to trial counsel Aaron Currin for raising and preserving this issue. 

Contributed by Tom Randell

DNA for the Defense Bar

by The National Institute of Justice

DNA for the Defense Bar is the newest addition to a series of NIJ guides that aims to improve the use of forensic DNA in the criminal justice system. Designed specifically for criminal defense lawyers, it:

  • Offers a primer on the science of DNA, from collection at a crime scene to laboratory analysis and findings.
  • Provides general discussions on working with a criminal defense client and preparing a defense, including the testimony of a DNA expert witness and cross-examining prosecution DNA witnesses.
  • Offers guidance regarding trial issues (for example, jury selection and opening and closing statements) and includes an in-depth discussion of the statistics with respect to CODIS match probabilities.
  • Include a discussion of post-conviction DNA testing.

Full text:

Vera Publishes Review of Research on the Relationship of Race and Ethnicity to Prosecutorial Decision Making

A new publication from the Prosecution and Racial Justice Program (PRJ) of the Vera Institute of Justice surveys the literature on the relationship of race and ethnicity to prosecutorial decision making.

Do Race and Ethnicity Matter in Prosecution?—a review of 34 empirical studies on the relationship of race and ethnicity to prosecutorial decision making published between 1990 and 2011 in peer-reviewed journals—analyzes research that previously has been accessible primarily to scholars. The PRJ review, written for a broad audience, is intended to encourage additional research on this critical subject.

“No other actor in the criminal justice system drives case outcomes as profoundly as the prosecutor,” PRJ director Whitney Tymas writes in her introductory note. “Nevertheless, empirical research analyzing racial impacts of prosecutors’ routine choices on the thousands of defendants and victims with whom they interact daily has been scarce.” 

Among the review’s key findings: 

  • Defendants’ and victims’ race appear to affect prosecutorial decisions. Most of the 34 studies reviewed found influences on case outcomes, even when other legal and extra-legal factors are taken into account.
  • The effect of race and ethnicity on prosecutorial decision making is inconsistent.
  • As compared to whites, it is not always blacks or Latinos and Latinas who receive more punitive treatment.

Read report

New Pew Center Study on Prison Terms

Time Served

The High Cost, Low Return of Longer Prison Terms

Quick Summary

The length of time served in prison has increased markedly over the last two decades, according to a new study by Pew’s Public Safety Performance Project. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

Over the past 40 years, criminal justice policy in the U.S. was shaped by the belief that the best way to protect the public was to put more people in prison. Offenders, the reasoning went, should spend longer and longer time behind bars.

Consequently, offenders have been spending more time in prison. According to a new study by Pew’s Public Safety Performance Project, the length of time served in prison has increased markedly over the last two decades. Prisoners released in 2009 served an average of nine additional months in custody, or 36 percent longer, than offenders released in 1990.

Those extended prison sentences came at a price: prisoners released from incarceration in 2009 cost states $23,300 per offender--or a total of over $10 billion nationwide. More than half of that amount was for non-violent offenders.

The report, Time Served: The High Cost, Low Return of Longer Prison Terms, also found that time served for drug offenses and violent offenses grew at nearly the same pace from 1990 to 2009. Drug offenders served 36 percent longer in 2009 than those released in 1990, while violent offenders served 37 percent longer. Time served for inmates convicted of property crimes increased by 24 percent. 

Almost all states increased length of stay over the last two decades, though that varied widely from state to state.  In Florida, for example, where time served rose most rapidly, prison terms grew by 166 percent and cost an extra $1.4 billion in 2009.

A companion analysis Pew conducted in partnership with external researchers found that many non-violent offenders in Florida, Maryland and Michigan could have served significantly shorter prison terms with little or no public safety consequences. 

The report also summarizes recent public opinion polling that shows strong support nationwide for reducing time served for non-violent offenders.

KY COA May 11th - Hamm - Client's inability to pay child support

Hamm v. Commonwealth, ---S.W.3d--- (Ky. App. 2012), rendered May 11, 2012, To be published

Mr. Hamm appealed his pretrial diversion revocation by the Boyd Circuit Court for his continued failure to pay child support. The diversion agreement called for Mr. Hamm to pay current child support and a portion of arrearages on a monthly basis. Three months later, a bench warrant was issued for failure to make payments. At the revocation hearing, Mr. Hamm admitted he had not made his support payments, but cited his inability to pay. He testified that he managed to earn about $40 per week, barely enough for himself, and far short of child support levels. The trial court revoked based solely on the failure to pay.

The Court of Appeals held that the circuit court’s revocation was improper in light of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011). Under Marshall, the trial court must consider the two Bearden v. Georgia, 461 U.S. 660 (1983), factors: 1) consider whether the probationer made sufficient bona fide efforts to pay, but has been unable to pay through no fault of his own; and 2) if so, consider whether alternative forms of punishment might serve the interests of punishment and deterrence. Id. at 823-24. The Court of Appeals agreed that Marshall applied and the trial court denied Mr. Hamm his due process rights by summarily revoking diversion based solely on his inability to pay. The trial court abused its discretion in failing to make the Bearden inquiry and appropriate findings of fact pursuant to Marshall.

Trial tip: in these revocation cases for failure to pay support, provide evidence that the client’s inability to pay was not through any fault of his and be prepared to provide alternatives forms of punishment.

Contributed by Brandon Jewell

KY COA May 11th - Thornton - Right to be heard in contempt sentencing

Anthony Thornton v. Commonwealth, ___ S.W.3d ___ (Ky. App. 2012)  To be published.

Thornton was found guilty of direct criminal contempt for his courtroom behavior but delayed sentencing until after his jury trial was over.  After the trial, the court sentenced him to 6 months for contempt without a hearing.  Under Schroering v. Hickman, 229 S.W.3d 591, 594-595, if a court delays imposing a sentence for contempt, the contemnor is entitled to exercise his due process right to be heard at a sentencing hearing.  The judgment was reversed and remanded for a new sentencing hearing. 

Contributed by Brandon Jewell

KY COA May 11th - Grider - Commonwealth shifting theory from indictment to trial and discovery violations

Commonwealth v. Grider, ___ S.W.3d ___ (Ky. App. 2012)  To be published.

The Circuit Court dismissed the indictment against Grinder with prejudice.  This was proper because the Commonwealth shifted its theories of criminal liability at the trail from those listed in the indictment.  The indictment alleged Grinder had billed Medicaid for one drug while dispensing another less expensive drug.  In opening statement, the Commonwealth said the crime was that Grinder violated Medicaid’s administrative regulations requiring pre-authorization to be reimbursed for specific drugs.  Because the jury had already been seated, the trial court could dismiss the indictment under RCr 6.12 because Grinder’s substantial rights were prejudiced; on top of shifting its theory of criminal liability, the Commonwealth had also failed to provide a bill of particulars detailing the circumstances of the crime despite being ordered to multiple times and had failed to disclose exculpatory evidence until a few days before trial which contained too much information to fully analyze in a few days.

Contributed by Brandon Jewell

New National Registry of Exonerations

The Center on Wrongful Convictions and University Michigan Law School tonight launched the National Registry of Exonerations—a comprehensive database containing extensive searchable information on the cases of nearly 900 men and women who have been exonerated in the U.S. since 1989 after being convicted of felonies they did not commit.

exonerationregistry.org 

In addition to the cases in the registry, more than 1,100 defendants have been exonerated following convictions stemming from 13 separate police corruption scandals (such as the drug task force scandal in Tulia, Texas, and the Rampart scandal in Los Angeles). Thus, the total number of defendants exonerated during the 23-year period totals roughly 2,000—an average of about one a week.

Below are the Kentucky cases listed -

DNAUse SHIFT+ENTER to open the menu (new window). Open Menu
*Use SHIFT+ENTER to open the menu (new window). Open Menu
Contributing Factors Open Menu







Chandler Edwin Kentucky 1995 2009

Mistaken Witness ID, False Confession
Gregory William Kentucky 1993 2000 Y
Mistaken Witness ID, False or Misleading Forensic Evidence, Official Misconduct
Kiper Ben Kentucky 2000 2006

Perjury or False Accusation
Porter Kerry Kentucky 1998 2011 Y * Mistaken Witness ID, Perjury or False Accusation
Smith Timothy Kentucky 2001 2006

Perjury or False Accusation, Inadequate Legal Defense
VonAllmen Michael Kentucky 1982 2010

Mistaken Witness ID