Louisville Courier-Journal Editorial - State needs to change DNA testing law

It has been 23 years since the first person wrongly convicted of a crime was exonerated through the science of DNA testing. Since then, 289 people in 35 states found guilty of offenses have been exonerated through DNA tests, according to the Innocence Project website,

Yet Kentucky stands squarely behind the times when it comes to updating its laws and policies on DNA testing in cases where people claim they have been wrongly convicted for serious offenses.

Complete editorial

Gunshot Residue Analysis

Gunshot residue is actually a compound containing either two or three particles commonly found in gunshot residue or primer residue.  Examiners will say that particles with  lead, antimony and barium present are indicative of gunshot residue while particles with two of the three particles are consistent with primer residue.  The report issued by Hamilton County’s laboratory will state that two element particles “are found in primer residue, but also may originate from other sources.”  For this reason, the use of gunshot residue is no longer accepted by many crime scene laboratories and forensic scientists.[1]

The possibility of transfer of particles resulting in the contamination of the hands or clothes tested creates another area for challenge.  All particles containing lead, antimony, or barium are very large.  Additionally, these particles persist almost indefinitely.  Furthermore, because the particles are rather large, they can easily transfer from hands, firearms, and furniture to clothing.[2]  If particles consistent with gunshot residue are found on hands, it indicates the person (a) had discharged a firearm, (b) had been near a discharged firearm, or (c) had come into contact with something that had gunshot residue on it.  If particles are found on clothing, it indicates that the item (a) had been worn while a person discharged a firearm, (b) had been near a discharged firearm, or (c) had come into contact with something that had gunshot residue on it. 



[1] Bykowicz, Lawyers Call City Analysis of Gunshot Residue Flawed, Baltimore Sun, Mar. 5, 2005; Orrick, Anoka Judge Rejects Gunshot Residue Evidence, St. Paul Pioneer Press, July 13, 2006 (quoting Judge Hall: “This court is not convinced that the relevant scientific community has a generally accepted standard for interpreting what conclusions can be drawn from GSR testing and analysis. . . . It is clear that significant questions exist . . . Concerning how many particles are required for there to be a positive test.”)

[2] See Summary of FBI Laboratory’s Gunshot Residue Symposium, May 31-June 3, 2005 available at http://www.fbi.gov/about-us/lab/forensic-science-communications/fsc/july2006/research/2006_07_research01.htm  (last visited Nov. 21, 2011)

Contributed by Andrea Kendall

KY SC March 22 - Mash- Race-Neutral Strike

BILLY MASH V. COMMONWEALTH, 2010-SC-000584-MR, To-be-published, March 22, 2012, Affirming - 

Evidence presented was insufficient to support a fair cross-section challenge to the jury panel. A juror’s negative demeanor was a sufficient race-neutral reason for the prosecutor’s use of a peremptory challenge to strike the juror from the venire. Although not an element of first-degree sodomy, the Commonwealth produced sufficient evidence of penetration to meet the unnecessary specific element of the jury instruction. No evidentiary foundation was presented for an instruction on sexual abuse. 

TRIAL TIP:  Unfortunately, an attorney cannot just show up the morning of trial, decide there are not enough minority jurors, and move to strike the panel.  Information must be collected ahead of time concerning the relevant underrepresentation for a number of jury panels, and statistical evidence should be presented.  If there is a statistically proven underrepresentation over a period of time, only then would the state have to change the way it selects people for jury service.  Because this is a systemic issue, and because of the size of such an undertaking and the number of cases it would affect, trial attorneys are advised to work closely with their Directing Attorney, Regional Manager, and Trial Division Director in order to challenge county practices that result in underrepresentation of an identifiable minority on jury panels. 

Contributed by Susan Balliet

KY SC March 22 - Smith - Instructions and Court Costs

ROBERT DWAYNE SMITH V. COMMONWEALTH, 2011-SC-285-MR, 3/22/12, Affirming in Part, Vacating and Remanding in Part. 

First-degree robbery and PFO I – 32 years. The evidence was, only, that Smith struck the victim.  But the instructions allowed the jury to convict if they thought Smith or one of his complicitors struck the victim.  While the first-degree robbery instruction did include a theory unsupported by the record, because there is no possibility that any juror voted to convict the defendant under the unsupported theory, the error was harmless. Case remanded for entry of a new judgment excluding surplus vague provision that could be construed as imposing court costs.

Contributed by Susan Balliet

KY SC March 22 - Copley- Affidavit In Support of Search Warrant

RONALD COPLEY V. COMMONWEALTH, 2011-SC-63-MR – March 22, 2012, Affirming.

Murder-20 years. Even though the affidavit in support of the search warrant was not properly sworn before an individual authorized by a judge of the county to administer oaths pursuant to RCr 2.02, suppression was not warranted because the error was not of constitutional magnitude, the error did not prejudice the defendant and there was no deliberate disregard of the Rules. Deputy Cain swore the affidavit before a notary public, an employee of the Commonwealth Attorney's office. There being no available circuit or district court judge or trial commissioner, the circuit clerk reviewed the affidavit, found probable cause and issued the search warrant. Under KRS 15.725(5) the circuit clerk was statutorily authorized to issue the warrant.

Contributed by Susan Balliet

Innocence Project Blog on latest issue with forensic experts

Forensic Practitioners' Credentials Come Under Fire

Through a joint project of PBS’ Frontline, ProPublica and the UC Berkeley School of Journalism, a Berkeley graduate student in journalism discovered that she was able to receive certification as a forensic consultant from the American College of Forensic Examiners International (ACFEI) after taking a single, open-book, multiple-choice exam online.


Several former ACFEI employees call the group a mill designed to churn out and sell as many certificates as possible. They say applicants receive cursory, if any, background checks and that virtually everyone passes the group’s certification exams as long as their payments clear.

  Some forensic professionals say the organization’s willingness to hand out credentials diminishes the integrity of the field.

The joint project, which investigates several shortcomings of the forensic science system, follows a landmark 2009 National Academy of Sciences report that challenged the scientific basis and rigor of forensics. The report’s chief recommendation, that a national entity to establish and enforce higher standards in the forensic sciences, has not yet been implemented.
 
Read the full article “No Forensic Background? No Problem
 
Read additional coverage, including an interview with the former co-chair of the National Academy of Sciences, Harry T. Edwards who discusses the need for a national forensic science entity.
 
For more about the National Academy of Sciences report.

North Carolina Racial Justice Act Decision

Yesterday, North Carolina Superior Court Judge Greg Weeks rendered a decision in the first case challenging a death sentence under the State’s Racial Justice Act. This comes twenty-five years after the United States Supreme Court decided in McCleskey v. Kemp that statistical proof alone is insufficient to state an equal protection violation when discriminatory impact in capital punishment is shown. In the North Carolina case Marcus Robinson was convicted and sentenced to death for the slaying of seventeen-year old Erik Tornblom. Evidence produced at the two-week hearing in the case showed that minorities, particularly African-Americans, were excluded from death-qualified juries at a much higher rate than white venire members. The study, conducted by two law professors at Michigan State University, showed that the statistical likelihood that the strikes were exercised for non-discriminatory purposes was less than one in ten trillion.

North Carolina’s Racial Justice Act, passed in 2009, is similar to Kentucky’s which was passed in 1998. North Carolina, however, permits post-conviction relief for prisoners while Kentucky defendants must raise the claim pre-trial in addition to a number of other structural differences. While Kentucky was the first and only state in the nation to have a Racial Justice Act until 2009 so far there have been no successful claims in the Commonwealth. This is despite statistical proof that African-Americans, particularly those accused of killing a white person, are more likely to face death in the Commonwealth.

Download Marcus Robinson RJA Order

Download Motion For Appropriate Relief Pursuant to the Racial Justice Act

Contributed by Greg Coulson

KY COA March 30th -Bell- Statement by Juvenile in School

Commonwealth v. Bell; and T.C.
11-CA-562, Rendered March 30, 2012; To be published

The Commonwealth appealed a denial of a writ of prohibition seeking to overturn the suppression of a thirteen-year old boy’s statement in a first degree sodomy case in Fayette County District Court. The Court of Appeals affirmed the suppression, finding that even though the detectives did not deprive T.C. of sleep, food, had Mirandized T.C., and had used a calm conversational tone, these factors do not provide the same assurance of voluntariness in a thirteen year old as it does for an adult. 

The Court of Appeals focused on the fact that T.C. was interrogated at school, stating, “The fact is a school is where compliance with adult authority is required and where such compliance is compelled almost exclusively by the force of authority. Like it or not, that is the definition of coercion.”  The Court found that the Detective’s questioning in the school setting made it reasonable to believe that T.C. felt he had to say “something, whether true or not.” Further, it was unreasonable that T.C. would believe he had the right to say nothing and get up and leave the interrogation.

The Court noted, “T.C., alone, was ordered by school officials into a room, facing adult authority figures with considerable power, who also feigned superior knowledge (“I know what happened [and your cousin] has not lied to me about anything”), and who repeatedly demanded answers that he, if he was to be an obedient child, would have to provide.  How could T.C. not perceive such a situation as subjectively coercive?”

Note that the Court of Appeals did not cite the recent U.S. Supreme Court case J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011), in making its decision.  The J.D.B. decision provides additional support for suppressing a juvenile’s statement when it is made in a school setting since it discusses the viewpoint of a child interrogated at school and requires consideration of a defendant’s age when determining if the child was in custody under Miranda.

Contributed by Robert Yang

McCleskey v. Kemp: 25 Years Later

A consortium of organizations has created the website, McCleskey v. Kemp: 25 Years Later.

Twenty-five years ago this April 22, the Supreme Court decision in McCleskey v. Kemp allowed our criminal justice system to relegate Blacks and Latinos to second-class citizen status simply because of their race or ethnicity.

In McCleskey, a majority of the court ruled that it was "inevitable" that Blacks would be treated worse by the criminal justice system and that the Constitution is only violated where it is proven that a specific person in a specific case intentionally discriminates against the defendant because of his or her race.

There exists today significant racial disparities at many critical stages of the criminal justice, resulting in Blacks and Latinos being treated differently than whites in comparable circumstances.

Listen to the oral argument and read the decision (via LDF, which argued the case before the Supreme Court.)

Join the #McCleskey conversation on Twitter (kicked off by the ACLU Capital Punishment Project)

Hear Michelle Alexander describing the "new Jim Crow"

Watch Bryan Stevenson share some hard truths about America's justice system

The Supreme Court has never reconsidered McCleskey despite the fact that this decision has yielded enormous negative consequences that extend far beyond the confines of courthouses and jail cells. By sanctioning racial disproportionality in the administration of criminal justice, McCleskey has caused significant racial disparities in access to meaningful employment, to public housing, to higher education, and to voting.

Justice Lewis Powell, the author of McCleskey, later admitted to a biographer that he was wrong in that decision and that he belatedly found capital punishment to be unworkable.

By condoning criminal justice laws and policies which disproportionately impact communities of color, the Supreme Court has endorsed a system of justice that fosters racism by ignoring it.

Hat tip to Standdown Texas Project

KY SC March 22 - Smith- Speedy Trial

JOHNNY SMITH V. COMMONWEALTH,

2011-SC-144-MR, March 22, 2012, Affirming in Part, Reversing and Remanding in part. 

First-degree robbery, unauthorized use of a motor vehicle and PFO II - 30 years.  Opinion contains an extensive speedy trial analysis.  Even though the Commonwealth had all the evidence in hand, and waited eight months for no good reason prior to requesting DNA testing, the trial court properly granted Commonwealth’s motion for a continuance in order to perform DNA testing.  Smith’s speedy trial rights were not violated –long story short--due to his own actions in failing to show up for multiple court appearances.  Although he failed to show because he was incarcerated elsewhere, he should have informed his attorney, who could have attempted to secure his presence.  Eyewitness testimony was sufficient to defeat a motion for directed verdict. Trial court’s imposition of court costs remanded for findings, as set out in Maynes v. Commonwealth, Case No. 2010-SC-000681-DG. Language of the restitution order was specific and was enforceable.

PRACTICE TIP:  If you have a client detained elsewhere, make efforts to obtain his presence at court appearances, or prepare to forfeit any speedy trial claim.

Contributed by Susan Balliet