http://theadvocate.posterous.com The online presence of the Kentucky Department of Public Advocacy journal posterous.com Fri, 01 Mar 2013 06:18:00 -0800 Moving to New Web Address http://theadvocate.posterous.com/moving-to-new-web-address http://theadvocate.posterous.com/moving-to-new-web-address

The service hosting this blog, Posterous, is shutting down April 30, 2013.

We are moving this blog to this web page

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Thu, 28 Feb 2013 05:43:00 -0800 KYA - Youth Incarceration on the Decline: Kentucky Still Confining Too Many Youth for Behaviors that Aren’t a Risk to Public Safety http://theadvocate.posterous.com/kya-youth-incarceration-on-the-decline-kentuc http://theadvocate.posterous.com/kya-youth-incarceration-on-the-decline-kentuc

The national rate of locking up young people in trouble with the law dropped by more than 40 percent over a 15-year period, with no decreases in public safety, according to a new report released by the Annie E. Casey Foundation today.

The KIDS COUNT Data Snapshot indicates that the number of young people in correctional facilities in the United States on a single day fell to 70,792 in 2010, from a high of 107,637 in 1995. The report also shows that the overwhelming majority of confined youth in the United States are charged with offenses that do not put public safety at risk, such as running away or violating probation. In 2010, only one of every four confined youth across the nation was locked up due to a violent offense (homicide, aggravated assault, robbery or sexual assault).

Kentucky’s trend of locking kids up is also going down, mirroring the national trend.  In 1997, Kentucky had 1,080 youth in confinement (at a rate of 235 per 100,000 youth ages 10-17) compared with 852 youth in confinement (at a rate of 186 per 100,000 youth ages 10-17) in 2010. The decline over this time period represents a 21 percent decrease in Kentucky’s rate. In 2010, Kentucky had the 18th lowest rate in the nation of locking kids up.

While Kentucky’s downward trend shows a move toward being smarter, and not just tougher, on crime, there is still vast room for improvement. An analysis by Kentucky Youth Advocates of data from the Kentucky Department of Juvenile Justice and Louisville Metro Youth Detention Services shows that only 3.8 percent of youth that were locked up during 2007-2011 were confined for violent offenses. This means that only a very minor number of confined youth pose a threat of harm to community safety.

For behaviors such as truancy and running away, which would not be considered crimes if the youth were adults, evidence-based programs can effectively address the underlying causes of behavior. Many states have implemented “Children in Need of Services” models, which recognize that there are family dynamics involved in youth misbehavior, such as running away, and work to address what is really causing that behavior. These models are more effective than confinement for minor offenses and are also less expensive.

Kentucky leaders have stepped up in addressing the juvenile justice system in the past couple of years. In 2012, the legislature created a Unified Juvenile Code Taskforce, Co-Chaired by Senator Katie Stine and Representative John Tilley, which has begun to identify ways to improve the juvenile justice system long-term. Senator Whitney Westerfield has filed a resolution (SCR 35) to reauthorize the task force so it can continue developing solutions to improve Kentucky’s juvenile justice system.

You can find the snapshot and data on youth in confinement in the KIDS COUNT Data Center.

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Tue, 26 Feb 2013 12:17:00 -0800 ABA Journal - Fifty years after Gideon, lawyers still struggle to provide counsel to the indigent http://theadvocate.posterous.com/aba-journal-fifty-years-after-gideon-lawyers http://theadvocate.posterous.com/aba-journal-fifty-years-after-gideon-lawyers

Click here for complete article

A year ago, addressing the American Bar Association’s National Summit on Indigent Defense, U.S. Attorney General Eric H. Holder Jr. said that across the country, “public defender offices and other indigent defense providers are underfunded and understaffed. Too often, when legal representation is available to the poor, it’s rendered less effective by insufficient resources, overwhelming caseloads and inadequate oversight.”

In short, Holder said, “the basic rights guaranteed under Gideon have yet to be fully realized.”

Daniel T. Goyette, the chief public defender for Jefferson County in Kentucky, and a member of the ABA’s Standing Committee on Legal Aid and Indigent Defendants, says that “despite some genuine efforts and notable advances, the criminal justice system and, more pointedly, the leadership of our executive, legislative and judicial branches of government—both state and federal —have largely failed to carry out the constitutional mandate of the Gideon decision.”

He adds: “Sadly, it has not been a priority, and we are constantly taking one step forward and two steps back.”

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Mon, 11 Feb 2013 05:54:00 -0800 KY COA Feb 1 - Gamble- Second-Degree Trafficking and PFO http://theadvocate.posterous.com/ky-coa-feb-1-gamble-secoond-degree-traffickin http://theadvocate.posterous.com/ky-coa-feb-1-gamble-secoond-degree-traffickin

Gary Gamble, Sr. v. Commonwealth- COA, rendered 2/1/13, not to be published - The Court reversed and remanded when it found that the new second-degree trafficking statute (KRS 218A.1413(2)), which classifies second-degree trafficking as a Class D felony with a maximum sentence of three years, prohibits sentence enhancement under the PFO statute.  

Steven Buck of the Appeals Branch represented Mr. Gamble on appeal, and Michael Bass  and Steven Goble used novel motion practice to preserve the issue for appeal in circuit court.

Contributed by Molly Mattingly

 

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Tue, 05 Feb 2013 05:25:00 -0800 New Publication - National Juvenile Defense Standards http://theadvocate.posterous.com/new-publication-national-juvenile-defense-sta http://theadvocate.posterous.com/new-publication-national-juvenile-defense-sta

NJDC has just released the National Juvenile Defense Standards.  The Standards represent a comprehensive understanding of the role and duties of the juvenile defender in the 21st century juvenile court system, and seek to strengthen and guide the ethical and professional performance of the juvenile defense attorney. The Standards present a national approach to systematizing zealous, competent and diligent defense practice in juvenile court and set out a framework for representation that is anchored in the law, science, and professional codes of responsibility.

Click here to request additional support or a hard copy of the Standards.  

 

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Mon, 28 Jan 2013 05:38:00 -0800 Must Watch Short Video - 'True Believers in Justice' http://theadvocate.posterous.com/must-watch-short-video-true-believers-in-just http://theadvocate.posterous.com/must-watch-short-video-true-believers-in-just

NY Times Op-Doc VIdeo and Op-Ed - True Belivers in Justice

A new documentary "Gideon's Army" about three young public defenders and the Southern Public Defender Training Center (now called "Gideon's Promise) premiered last week at the Sundance Film Festival last week. 

The above link takes you to an excellent short video about one of the public defenders and an editorial by the filmmaker, Dawn Porter.

I was horrified by what I learned about the criminal justice system. Innocent people, in prison for months or years, sometimes plead guilty to get out of jail; onerous sentences are too often given for minor crimes; people can lose civil rights, like the right to vote, as a result of criminal convictions. In America, a felony conviction can be a lifelong sentence because of this multitude of collateral consequences.

I also saw what a difference it made to have lawyers like Travis fighting hard for poor people’s rights. I saw him tell clients and their families that they were facing long sentences, outrageous bail terms or prison. But I saw him deliver even the worst news with compassion, and I saw him fight for every client. He’s inspired me to judge less and listen more, to try to put myself in the position of people who face a terribly structured system that often provides justice to neither the victim nor the accused. Thanks to Travis and the other young lawyers I met on this journey, I can proudly say I’m a “true believer” in their cause.

 

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Wed, 09 Jan 2013 10:20:00 -0800 Listen to Advocate Blog posts on Itunes http://theadvocate.posterous.com/listen-to-advocate-blog-posts-on-itunes http://theadvocate.posterous.com/listen-to-advocate-blog-posts-on-itunes

You can now subscribe to an ITunes podcast download here to get an audio version of blog posts.   The audio is generated through a computer service called podcastomatic. 

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Tue, 08 Jan 2013 06:38:00 -0800 New Free Online Toolkit Aims to Inform Lawyers Who Work With Traumatized Youth http://theadvocate.posterous.com/new-free-online-toolkit-aims-to-inform-lawyer http://theadvocate.posterous.com/new-free-online-toolkit-aims-to-inform-lawyer

Research shows that most young people entering the juvenile or adult justice system have been exposed to violence and other traumatic events, and often they have experienced trauma multiple times. Research also shows that the greater the degree of exposure, the more likely the child will suffer physically, socially and emotionally, says Howard Davidson, director of the American Bar Association Center on Children and the Law.

These factors led to the creation of a free toolkit, available online and intended for use by the justice system. The toolkit, titled “Identifying Polyvictimization and Trauma Among Court-Involved Children and Youth: A Checklist and Resource Guide for Attorneys and Other Court-Appointed Advocates,” is designed to make legal representation of children in delinquency, dependency (abuse/neglect) and other cases more focused on addressing the victimization a child client has experienced, and on how that client has been affected by multiple traumas, Davidson says.

Lawyers can use the toolkit’s checklist to identify and better understand what violence and other distress their child clients have experienced, he says. The checklist provides a vehicle to help lawyers determine whether the youth they represent has one of more than 20 adverse symptoms that may indicate their client is suffering from severe traumatic stress.

“If their client has traumatic stress, there is a flowchart to help the lawyer understand what trauma-informed referrals and services the child may need,” Davidson says.

Accompanying the toolkit is the issue brief “Victimization and Trauma Experienced by Children and Youth: Implications for Legal Advocates.” Among the topics the document covers are: understanding the symptoms of traumatic stress; the role of legal advocates, judges and court staff; screening instruments for identifying past trauma and exposure to violence; descriptions of relevant state and local initiatives; and considerations related to developing a trauma-informed legal practice.

The tools stand to benefit lawyers and their child clients, Davidson explains. “Many children and youth in the child welfare and juvenile justice systems have experienced or witnessed violence or other traumatic events and suffered the fear of ongoing exposure to harm,” he says. “Trauma-informed care and evidence-based mental health treatments are a crucial part of recovery. These tools were developed to increase awareness of these issues among the legal profession, especially court-appointed lawyers for children in juvenile and family courts.”

Davidson encouraged development of the documents and facilitated support for them through the Safe Start Center, a program funded by the Department of Justice. The final products represent a partnership between the ABA, Safe Start, Child and Family Policy Associates and the Chadwick Center for Children and Families.

“I hope that these documents will be widely disseminated and utilized, so that we will truly have trauma-informed legal advocacy for vulnerable children and youth across the country,” Davidson says.

Source ABA Now

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Mon, 07 Jan 2013 05:34:00 -0800 KY. criminal system is breaking budget - Lexington H-L Op-Ed by Ernie Lewis http://theadvocate.posterous.com/ky-criminal-system-is-breaking-budget-lexingt http://theadvocate.posterous.com/ky-criminal-system-is-breaking-budget-lexingt

KY. criminal system is breaking budget

University of Kentucky law professor Robert Lawson, an expert on this state's criminal justice system, summed up our current situation:

"We have seized every opportunity for three decades to make punishments harsher on criminals. We have elevated an untold number of misdemeanors to felonies, have pushed sentences higher through reclassification of crimes and the enactment of a wide assortment of penalty enhancements, and have eliminated parole for a long and ever-expanding list of serious offense."

Yet, Kentucky has an acute need for significant additional resources. These needs include meeting our pension obligations, funding our educational and judicial systems and Medicaid.

A source of money not yet considered is in our correctional system.

Kentucky spends almost $500 million per year to incarcerate and supervise more than 22,000 inmates and over 41,444 persons on probation and parole.

The state spends an additional $244 million on house misdemeanants and pretrial detainees.

Over 19,000 persons in Kentucky are presently housed in our jails, including over 8,000 incarcerated for a felony offense.

Almost 2 percent of the Kentucky population is in prison, jail, or on probation or parole.

To handle this growing population, we have increased spending by four times since 1990 without increasing public safety.

The Kentucky Association of Criminal Defense Lawyers believes we can find additional resources by cutting corrections costs.

In 1980, Kentucky incarcerated only 3,723 inmates and spent only $28.7 million.

In 1990, Kentucky incarcerated 8,824 and spent $129.1 million.

By 2000, Kentucky incarcerated 15,444 and spent $273.9 million.

Today, we spend almost $500 million.

What if Kentucky set a goal to return to 2000 levels of incarceration and spending, or even 1990 levels?

Could we do so without compromising public safety? Remember that, at present, our crime rate is no better today than it was in 1970.

KACDL believes we can pass reasonable legislation that would decrease prison costs while at the same time protecting public safety.

Harvard University sociologist Bruce Western has stated that increased incarceration accounts for only about 10 percent of the drop in crime rates, while William Spelman, a professor of public affairs at the University of Texas, believes that the figure is closer to 25 percent.

There are commonsensical ways to spend less while maintaining public safety. Some or all of the following should be considered:

• Reclassify nonviolent felonies and misdemeanors.

• Reduce the number of people sentenced to prison without consideration for parole until they have served 85 percent of their time.

• Reform persistent felony offender laws. We now have 4,098 persons in prison on the Persistent Felony Offender law, up from only 79 in 1980.

As of 2011, we had incarcerated 7,792 persistent felony offenders and violent offenders at a cost of $169,193,925.

• Replace the death penalty with a life without parole sentence.

Kentucky has executed only one person involuntarily since 1976 when the modern death penalty was passed, and it is immensely costly. It can be replaced with life without parole sentence that can be used to house safely those who have committed the most aggravated crimes.

• Fund the public defender system. A fully funded public defender system is vital to ensure that only those persons who are guilty of the crime charged are placed into jail or prison.

An excellent public defender system is a cost-effective way to hold down the costs of incarceration.

• Raise the theft limit to $1,000. A person can be imprisoned for five years at a cost of over $20,000 per year for shoplifting an item worth $500 or more.

Is it reasonable for our taxpayers to spend $100,000 to warehouse a person who steals a set of golf clubs?

• Decriminalize nonsupport. Kentucky also houses many persons in our jails and prisons who fail to pay child support. Once they are imprisoned, their families are often placed into the welfare system.

We have better things to do with hundreds of millions of dollars than warehouse our citizens. As we are scouring our budget for additional resources, let's not forget this obvious choice.

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Thu, 20 Dec 2012 05:15:00 -0800 KY COA Dec 7 - Brooks- 4th Amendment http://theadvocate.posterous.com/ky-coa-dec-7-brooks-4th-amendment http://theadvocate.posterous.com/ky-coa-dec-7-brooks-4th-amendment

Commonwealth v. Brooks, 2011-CA-002075

Police obtained consent, in writing, to search a home.  Several people were in the home and secured at the time.  Police found a purse in the basement.  They searched the purse and found drugs.  The trial court suppressed the evidence.  The Kentucky Court of Appeals upheld the suppression.  They stated that the third party consent to search the home did not extend to the purse found in the basement and there was no exception to the warrant requirement in this situation.

Contributed by John Landon

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Tue, 18 Dec 2012 05:40:00 -0800 Bill would expand prisoners' rights to DNA testing - Cincinnati.com http://theadvocate.posterous.com/bill-would-expand-prisoners-rights-to-dna-tes http://theadvocate.posterous.com/bill-would-expand-prisoners-rights-to-dna-tes

Former federal marshal wants to afford convicts tools to prove innocence

A conservative Northern Kentucky lawmaker has thrown his support behind legislation previously championed by liberals that would allow a Cincinnati man to proceed with DNA testing on evidence he claims will exonerate him of a 1987 rape and killing in Newport.

“If DNA testing is good enough to send you to prison it should be good enough to get you out of prison,” State Sen. John Schickel, R-Union, said while speaking at a criminal law reform symposium held last month at Northern Kentucky University.

“One of the basic tenants of American jurisprudence is that it is better to have a guilty man go free than an innocent man go to prison.”

On Friday, Schickel pre-filed legislation that would afford DNA testing to inmates like 60-year-old William Virgil, who is serving a 70-year sentence in LaGrange for the killing of VA Medical Center nurse Retha Welch. DNA testing was not available at the time of the crime.

complete article

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Mon, 17 Dec 2012 12:17:00 -0800 New Vera Resource - Analysis of Prosecutorial Decision Making http://theadvocate.posterous.com/new-vera-resource-analysis-of-prosecutorial-d http://theadvocate.posterous.com/new-vera-resource-analysis-of-prosecutorial-d

The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making

In the U.S. justice system, prosecuting attorneys have broad latitude in the decision making that influences criminal case outcomes. They play their pivotal role with little oversight from the public, the press, or members of the judiciary. While researchers have explored the correlation of specific factors to case outcomes, there has been scant examination of the processes prosecutors use to reach their decisions or what contextual factors influence their decision making, such as prosecutors’ characteristics, organizational constraints, and social context (relationships among participants in the courtroom workgroup, for example). Furthermore, there has been little research examining the influence of prosecutors’ conceptions of justice and fairness.

With support from the National Institute of Justice, the Vera Institute of Justice undertook research to better understand how prosecutors make decisions throughout the processing of a case. Vera’s study, conducted by Senior Research Associate Bruce Frederick and Don Stemen, assistant professor in the Department of Criminal Justice and Criminology at Loyola University Chicago, sought to go beyond previous studies of prosecutorial decision making and conduct a study that would yield a more nuanced, comprehensive understanding of the process.

The resulting multimedia resource, titled The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making, is now available online. It includes a technical report, a summary report, and four podcasts featuring scholars and practitioners in the justice system discussing the study’s ramifications for understanding how prosecutorial practice affects justice outcomes.


Read the reports and watch the podcasts 

 

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Mon, 17 Dec 2012 05:27:00 -0800 Kentucky Public Advocacy Commission Resolution in Recognition of Daniel T. Goyette http://theadvocate.posterous.com/kentucky-public-advocacy-commission-resolutio http://theadvocate.posterous.com/kentucky-public-advocacy-commission-resolutio

Recognition of Daniel T. Goyette’s 30 years of defender leadership and 37 years of defender service

 

WHEREAS, pursuant to KRS Chapter 31, the Public Advocacy Commission is the governing body for the Department of Public Advocacy, the statewide public defender program for the Commonwealth;

WHEREAS, Daniel T. Goyette is a 1971 graduate of Marquette University with a double major in English and Philosophy, and the Loyola University Rome, Italy Center of Liberal Arts, and a 1974 graduate of the  University of Oklahoma College of Law and a 1985 graduate of Leadership Louisville and a 1994 Bingham Fellow; 

WHEREAS, Daniel T. Goyette has been married to his wife, Kathy Popham, for 40 years and has four daughters, Caroline, Katie, Meg, and Ryan, and a grandson, Max;

WHEREAS, Daniel T. Goyette joined the Louisville-Jefferson County Public Defender Office on October 15, 1974 and quickly became the chief trial attorney;

WHEREAS, Daniel T. Goyette served as Deputy Chief Public Defender for the Louisville-Jefferson County Public Defender Office from 1977 - 1982;

WHEREAS, Daniel T. Goyette has served as Executive Director of the Louisville-Jefferson County Public Defender Office since August 1982;

WHEREAS, Daniel T. Goyette has served in many professional organizations dedicated to the advancement and study of law especially the advancement of the right to counsel for the indigent accused. These include being a member of the Kentucky, Louisville, and American Bar Associations. He served as the Louisville Bar Association President in 1988, and the President of the Louisville Bar Foundation in 1991.  Mr. Goyette is a longtime member of the National Association of Criminal Defense Lawyers and is a Charter Board Member and past (2008-2010) President of the Kentucky Association of Criminal Defense Lawyers and Past-President of the Kentucky Academy of Justice, a member of the National Legal Aid and Defender Association, a Charter Member of the American Council of Chief Defenders, and Co-Chair of the American Council of Chief Defenders National Caseloads Standards Task Force. He served as member of the Kentucky Criminal Justice Council, the Kentucky Bar Association Ethics Committee from 1986-2009, as Chair of the Louisville Bar Association Committee on Professional Responsibility, and as a member of the American Bar Association Standing Committee on Ethics and Professional Responsibility from 1989 – 1992, a member of the  American Bar Association House of Delegates 1990-1996 and 2006-2012, he was a member of the Kentucky Bar Association, House of Delegates 1982-1986 and 1989-1993 and Chair of the Kentucky Bar Association Criminal Law Section 1983-1985, 1987-1988, 1990-1991, 1994-1995. Since 2011 he has been a member of the American Bar Association Standing Committee on Legal Aid and Indigent Defendants. Since 1979, he has been an adjunct faculty member at the Brandeis School of Law at the University of Louisville. He is a charter member of the Louis D. Brandeis American Inn of Court and Chair of its Membership Committee and chaired Citizens for Better Judges and the Center for Educational Leadership;

WHEREAS, Daniel T. Goyette’s lifetime of dedicated work and achievement, his high standards, professionalism and excellence have earned him prestigious recognitions including the Department of Public Advocacy’s 1994 Gideon Award for “his extraordinary commitment to equal justice and his courage in advancing the right to counsel for the poor in Kentucky,” and in 1997 the American Bar Association’s prestigious Dorsey Award, the 2003 Hall of Fame William H. Sheppard – Excellence in Community Leadership Award, the Kentucky Association of Criminal Defense Lawyers’ 2009 Special Recognition Award, the Kentucky Bar Association’s 2003 Justice Thomas B. Spain Award  for outstanding service in continuing legal education, and the Brandeis School of Law at the University of Louisville  Dean’s Service Award in 2003. He received the Department of Public Advocacy’s 2004 Lincoln Leadership Award. In 2007, Mr. Goyette was the recipient of the Kentucky Bar Association’s Outstanding Lawyer Award. That same year, in its inaugural rating of Kentucky lawyers, Mr. Goyette was recognized by SuperLawyers in the category of criminal defense, and he has been featured in the Top Lawyers edition of Louisville Magazine and other publications. He was the recipient of the 2010 National Coalition to Abolish the Death Penalty’s Outstanding Legal Service Award;  

WHEREAS, Daniel T. Goyette has lectured on a variety of legal issues and topics both locally and nationally and his knowledge and wisdom in the field of law, especially indigent defense, has been sought by fellow attorneys, students, and scholars across the Commonwealth and nation for decades;  

WHEREAS, Daniel T. Goyette has been co-counsel on four (4) cases before the Supreme Court of the United States: Watkins v. Sowders, 449 U.S. 341 (1981), Crane v. Kentucky, 476 U.S. 683 (1986), Stanford v. Kentucky, 492 U.S. 361 (1989), and the landmark case of Batson v. Kentucky, 476 U.S. 79 (1986);

WHEREAS, Daniel T. Goyette’s passionate work for public defender clients has spanned nearly four decades;

WHEREAS, Daniel T. Goyette is in his 38th year of service to the Commonwealth as a lawyer, his 37th year of service to the Commonwealth as a public defender, and his 30th year of service as Executive Director of the Louisville-Jefferson County Public Defender Corporation; and

WHEREAS, Daniel T. Goyette has systematically provided the guiding hand of counsel to hundreds of thousands of clients in Jefferson County with paramount pride, relentless passion and dogged perseverance.

THEREFORE, NOW BE IT RESOLVED

That the Kentucky Public Advocacy Commission on behalf of defender staff and clients in the Commonwealth recognizes, congratulates and honors Daniel T. Goyette for his dedicated defender leadership for 30 years and commends Daniel T. Goyette for a lifetime of service and achievement in the practice of indigent defense law and leadership.

 

This 14th day of September 2012,

 

Jerry C. Cox

Chair, Public Advocacy Commission

 

pdf of resolution


 

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Mon, 10 Dec 2012 05:42:00 -0800 KY COA Nov 30 - Andrews - HB 463 and Probation http://theadvocate.posterous.com/ky-coa-nov-30-andrews-hb-463-and-probation http://theadvocate.posterous.com/ky-coa-nov-30-andrews-hb-463-and-probation

Andrews v. Commonwealth, 2011-CA-001360, Not to be published, -

The trial court revoked Andrews probation when it found a single positive drug test made him a significant risk to the community and that he could not be managed within the community.  After Andrews failed the drug test, he checked himself into a treatment center and was doing well.  The trial court revoked Andrews probation.

The Court of Appeals reversed, finding that HB 463 has a particular emphasis on using treatment to rehabilitate offenders and decrease overall costs, and that a failure to comply with a condition of probation is no longer sufficient to automatically justify revocation of probation. 

The Commonwealth must now prove by a preponderance of the evidence that the probationer poses a significant threat to prior victims or the community and cannot be managed in the community. Here, Andrews was doing well on probation (except for single drug test failure) and doing well in a community-based treatment program. The Court also took issue with the trial judge’s consideration of Andrew’s initial denial of his need for treatment: “Andrews should not be barred from accessing treatment now simply because he previously denied he had a substance abuse problem or needed treatment.  If we were to allow revocation of probation under these circumstances, it would negate the entire statutory change to the probation revocation process and the purposes underlying House Bill 463.”

Contributed by Shannon Smith

 

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Fri, 07 Dec 2012 12:10:00 -0800 December 2012 Advocate - Proposed Revisions to Kentucky Juvenile Code http://theadvocate.posterous.com/december-2012-advocate-proposed-revisions-to http://theadvocate.posterous.com/december-2012-advocate-proposed-revisions-to

is now available here

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Fri, 30 Nov 2012 08:36:00 -0800 Oregon Supreme Court Establishes New Procedures to Determine the Admissibility of Eyewitness Identification Evidence- Innocence Blog http://theadvocate.posterous.com/oregon-supreme-court-establishes-new-procedur http://theadvocate.posterous.com/oregon-supreme-court-establishes-new-procedur

In State of Oregon v. Samuel Adam Lawson, the Oregon Supreme Court established new procedures to determine the admissibility of eyewitness identification evidence today. The case revised previous reliability tests and will now require that courts review eyewitness testimony in a manner consistent with the vast research in the area of eyewitness identification and memory. The court’s ruling reflected many of the legal arguments set forth by the Innocence Network in its friend-of-the-court brief.
 
Lawson, who will now receive a new trial, was convicted of murder based largely on an eyewitness’ account from the victim’s wife two years after the incident. The identification was aided by the lead investigator in the case who showed her a picture of Lawson and then escorted her to a pre-trial hearing so she could get a second look.
 
The Oregon Court of Appeals found Hilde’s identification to be valid based on a 33-year-old case, State v. Classen. However, the Supreme Court unanimously disagreed in an 80-page opinion by Justice Paul J. De Muniz citing serious concerns regarding the reliability of the identification. The Oregonian reports:

"In light of current scientific knowledge regarding the effects of suggestion and confirming feedback," De Muniz concludes that questions about the reliability of the ID evidence admitted at trial are impossible to ignore and remands the case to trial court for a new trial.

 


Among Classen's many problems, De Muniz notes, is that the law's "burden-of-proof structure improperly requires defendants who have filed pretrial motions to exclude eyewitness identification evidence to first establish than an identification procedure was suggestive, even though the state -- as the administrator of that procedure -- controls the bulk of the evidence in that regard."


The ruling comes soon after a similar landmark decision from New Jersey’s Supreme Court required major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries. The Oregon decision goes further than the New Jersey court in protecting against wrongful convictions based on misidentification in several important respects.  The new Oregon test shifts the burden to the state to establish that the evidence is admissible. If the state satisfies its initial burden, the court charges that judges may still need to impose remedies, including suppressing the evidence in some circumstances, to prevent injustice if the defendant establishes that he or she would be unfairly prejudiced by the evidence.   
 
Read the full article.
 
Read the full opinion.

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Thu, 15 Nov 2012 09:33:00 -0800 KY SC Nov 9 - Reynolds- Terry Stop http://theadvocate.posterous.com/ky-sc-nov-9-reynolds-terry-stop http://theadvocate.posterous.com/ky-sc-nov-9-reynolds-terry-stop

Reynolds v. Commonwealth, 2010-CA-2192 (rendered 11/9/12)(to be published),

Reversing

Terry Stop

The Court of Appeals held that the scope of the search of Reynolds exceeded that which is contemplated by Terry v. Ohio, 392 U.S. 1 (1968).  Mr. Reynolds was an occupant of a vehicle.  The vehicle was stopped because police had received information that two female occupants of the vehicle had acted strangely at Walgreens while purchasing legal amounts of pseudoephedrine.  When police searched another male occupant of the vehicle (one who had freely admitted to the police he had a prior conviction for trafficking in methamphetamine), marijuana and rolling papers were found.   The officer observed that Mr. Reynolds was “fidgeting,” and searched him as well.  Specifically, the officer testified he felt a large “softball sized lump” above Mr. Reynolds’ genitalia.  The lump turned out to be a baggie of marijuana, methamphetamine, and prescription pain pills.  Held:  “fidgeting alone is insufficient to justify a Terry search for weapons.”  The Court reverses the circuit’s order denying the motion to suppress. 

Contributed by Emily Rhorer

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Wed, 14 Nov 2012 05:22:00 -0800 KY SC Sept 20 - Sluss- Jury issues and Facebook. http://theadvocate.posterous.com/ky-sc-sept-20-sluss-jury-issues-and-facebook http://theadvocate.posterous.com/ky-sc-sept-20-sluss-jury-issues-and-facebook

Ross Brandon Sluss v. Commonwealth, 2011-SC-000318-MR, ___ S.W.3d ___ (Ky. 2012)

Opinion by Justice Noble.  To be published. 

Jury issues and Facebook.

Sluss was convicted of murder, first degree assault, DUI, and tampering with physical evidence.  The case received much publicity in Martin County and was discussed often on Facebook and Topix.   After trial, Sluss discovered two of the jurors may have been Facebook friends with the victim’s mother.  “As a general rule, anything which is good cause for challenge for disqualification of a prosepective juror is deemed good cause for a new trial if not known or discoverable to the defendant or his counsel before the verdict and they were misled by a false answer on voir dire.”  The Supreme Court remanded the case for the trial court to determine if the two jurors were facebook friends with the victim’s mother and the extent and nature of the jurors’ relationship with her if they were.

Contributed by Brandon Jewell  

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Wed, 14 Nov 2012 05:18:00 -0800 Kentucky Supreme Court considering Miranda warning for students- Louisville Courier Journal http://theadvocate.posterous.com/kentucky-supreme-court-considering-miranda-wa http://theadvocate.posterous.com/kentucky-supreme-court-considering-miranda-wa

The Kentucky Supreme Court is considering a case from Nelson County that could require school officials to give the Miranda warning — you have the right to remain silent and anything you say can and will be used against you — when questioning a student with a school resource officer present.

Principals frequently work in concert with such officers — there are 254 sworn police working in Kentucky schools, according to the Kentucky Center for School Safety, and up to 60 percent of schools nationwide have one on campus.

Miranda warnings are required when a subject is in custody — when a suspect thinks he’s not free to leave — and at issue is whether a student grilled in the principal’s inherently fits that description.

Opponents of requiring the warnings in school say administrators have more important things to do.

more....

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Tue, 13 Nov 2012 07:48:00 -0800 KY SC Sept 20 - Morseman - Restitution http://theadvocate.posterous.com/ky-sc-sept-20-morseman-restitution http://theadvocate.posterous.com/ky-sc-sept-20-morseman-restitution

Commonwealth v. Shawn Morseman, 2011-SC-000167, ___ S.W.3d ___ (Ky. 2012).

Opinion by Justice Scott.  To be published. 

Restitution.

Morseman was indicted on second degree arson by complicity and fraudulent insurance acts by complicity over #300.  He pled guilty to fraudulent insurance acts by complicity over $300.  He was ordered to pay restitution, $48,598.02, as part of the plea agreement.  The Supreme Court analyzed whether the trial court abused its discretion when, as part of a plea agreement, it ordered Morseman to reimburse Amica for insurance proceeds distributed for property damage, alternative housing, and living expenses, which were damages not incurred as a result of the fraudulent insurance acts- the only crime for which he pled guilty.  By statute, KRS 533.030(3), 532.350(1)(1), 304.47-020(2)(d), Morseman would not be required to pay restitution because the loses were due to the fire and he did not pled guilty to arson.  However, the Supreme Court upheld the order of restitution as part of the plea agreement. 

Contributed by Brandon Jewell

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