http://theadvocate.posterous.com The online presence of the Kentucky Department of Public Advocacy journal posterous.com Tue, 01 May 2012 10:09:00 -0700 KY SC March 22 - Mash- Race-Neutral Strike http://theadvocate.posterous.com/ky-sc-march-22-mash-race-neutral-strike http://theadvocate.posterous.com/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

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Sun, 10 Jul 2011 08:13:00 -0700 Featured Case - McDaniel - Jury Strikes and Investigative Hearsay http://theadvocate.posterous.com/featured-case-mcdaniel-jury-strikes-and-inves-24437 http://theadvocate.posterous.com/featured-case-mcdaniel-jury-strikes-and-inves-24437

McDaniel v. Commonwealth, 09-SC-443 (June 16, 2011) (published)

The Supreme Court held it was reversible error for the trial court to fail to strike two jurors  for cause, depriving the client of two peremptory challenges. The Court noted the issue was properly preserved under Gabbard. One juror worked with the murder victim’s wife, who was also charged, and the other who worked with the victim previously and liked him. Neither juror could say unequivocally they could be fair and impartial. Very nice language in this case about the importance of an impartial jury and that “equivocal” is not good enough.  

The failure to strike a clearly biased juror for cause, necessitating the use of a peremptory strike to ensure an unbiased jury, is the denial of a substantial right, and we hold that a trial court abuses its discretion when it seats a juror who is truly equivocal with regard to his or her ability to render an impartial judgment. Under Shane and Paulley equivocation is simply not good enough. Shane, 243 S .W.3d at 339; Paulley, 323 S.W.3d 715 . The substantial right recognized in those case provides no room for a trial court to seat a juror who is not sure whether he can provide both sides with a level playing field . A juror's statements and demeanor must support the trial court's decision to seat him, given the totality of the circumstances . To do less would give defendant's a substantial right "with one hand and take [it] away with the other." Shane, 243 at 339 . Therefore, because these two jurors could not state that they possessed the ability to be fair and impartial we hold that the selection process was not fair in this case. We reiterate that "a trial is not fair if only parts of it can be called fair." Id.

The Court also ruled that the police chief offered investigative hearsay when he repeated what other charged defendants had told him about McDaniel’s involvement.

 Contributed by Shannon Smith

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