advocate vol no entire issue by jolinmilioncherie



           Vol. 6 No. 5        A Bi-Monthly Publication of the DPA                August 1984

UPCOMING   THE ADVOCATE FEATURES                                          TRAINING

                                                        DRUNK DRIVING LAW SEMINAR

                                                     On Thursday, September 20, 1984
                                                     the    Department      of    Public
                                                     Advocacy will conduct a seminar
                                                     on defending the drunk driver.
                                                     It will feature Mike Adelson, a
                                                     Los Angeles     public    defender;
                                                     James Epstein,     a former Los
                                                     Angeles public    defender;     and,
                                                     Jay   Williams,    a    California
                                                     chemical expert in drunk driv
                                                     ing cases.   It will also fea
                                                     ture:  Harry ilellings,     Jr.   of
                                                     Covington;   Bruce     Prizant    of
                                                     Louisville;   George Sornberger
                                                     of Somerset and Senator Mike
                    RAYMOND S. BOGUCKI
                                                     Moloney of Lexington.

           Raymond Bogucki, our Mason and                     Continued,      P. 3
           Bracken County public advocacy
           Administrator,  began with the
           Department in June of 1982. He
           has two Northern Kentucky law                             INSIDE
           offices  -  one in Augusta and                                                PAGE
           another in Florence   where Ray

           lives with Vicki, his wife of         West’s               Review              4
           13 years and their 11 year old        Health Care
           son, Chant Graham. If you hap                              forAccused         14
           pen to run into Ray, get him to       Death                Penalty            17
           tell   you how Chant got his          Federal               Review            21
           name.                                 Trial Tips
                                                 - Motion             Practice           26
           Ray’s    skill    as   a   public                          -Objections        28
           defender and resulting    reputa      -    New DUI     Law                    29
           tion has brought clients .to his      -    Death               Certificates   35
           private practice.    Ray is proud     -    Cases of Note in Brief.            39
           of that because he attempts to        -    Juvenile     Law                   41
           challenge and better the image        -    TV Coverage of Trials..            43
                  Continued,   P. 2

                                                     l4t   hs cl.-Tent.s have df puhfl..c
                                                                   Ray queried,      "how
      TREAPVQCATfl                                   defenders.
                                                     many times have
                                                     couldn’t get a
                                                                          you heard,
                                                                         real attorney,

                        EDITORS                      so I had to get a public de
                                                     fender.’"? Ray continues vehe
             -    Edward C. Nonahan                  mently,    "We    have   to   change
              -   CrIs Purdom                        pople’s perception of assigned
                                                     cbunsel. Frequently the client
                                  EDITORS            is gettingCONTRIBUTING
                                                                    the most competent
                                                     attorney who is well-prepared
              -   Linda K. West                      with sophisticated     resources at
                    West’s Review                    his or her   disposal."     Ray went
              -   Randy Wheeler                      on to  comment on a particularly
                    Post-Conviction                  excellent    resource   -   the De
              -   Kevin M. IlcNally                  partment’s      Northern    Kentucky
                    The Death Penalty                investigator,     Mike Zaider, who
              -   Gayla Peach                        does an infinite amount of work
                    Protection & Advocacy
                                                     for him.
              -   J. Vincent Aprile, II
              -   t4ichael A. Wright                 From the time he’s appointed,
                                                     Ray works      to    undermine    the
                    Juvenile Law
              -   Neal Walker                        client’s negative attitude.        He
                    Federal Review                   takes time to thoroughly iden
                                                     tify the client’s        legal needs
                                                     and he says they respond fa
     The Advocate is a publication of the
     Department of Public Advocacy and is            vorably to his attention. Apart
                                                     from time, Ray is careful          to
     published bi-monthly.   Opinions ex
     pressed in articles are those of the            address    the    clients    respect
     authors and do not necessarily repre            fully and to talk to them on
     sent the views of the Department.               their own level. He tries          to
                                                     interject    some humor to relax
                                                     their   tension.     Ray’s approach
     Changed or Incorrect Address?          Receiv   encourages the client to open
     ing two copies? Let us know.                    up to him and he *gets results
     NAME                                            as his clients work with him.

     ADORES S                                        tiason County jailer,   Floyd B.
                                                     Berry, said that Ray is "very
                                                     considerate of his clients and
                                                     does a very good job. He de
                                                     votes    a lot of time to his
                                                     clients.   We enjoy his sense of
     The Advocate welcomes correspondence            humor, too.    He’s an asset to
     on subjects treated in its pages.               the community."

                                                     So why would any attorney,      let
                                                     alone a lawyer with a thriving
                                                     private   practice,      undertake
                                                     public  defender    work? Partly
                                                     because Ray trusts      our legal
                                                     system.  He feels that in order
            Printed with State         Funds
       [           KRS 57.375                                Continued,    P. 3

for it to work "an indigent                       SEARCH AND SEIZURE SEMINAR
person    charged     with whatever
crime must he as well protected                On Thursday, September 6, 1984,
as anyone else because basic                   the Louisville   Bar Association
rights     cut     across    economic          in conjunction with the Crim
barriers."    In   addition to that,           inal Law Section of the Ken
Ray admits shyly that he feels                 tucky   Bar    Association   will
he’s been lucky and he wants to                present   a daylong seminar at
give something back. Also, he                  the Gait House in Louisville on
gets to do "what others dream                  "Search and Seizure Law: Three
about."     He explains,      in the           Perspectives."
sense that he gets to be in the
courtroom battling        to protect           The registration   fee for mem
an "inherently good" system and                bers of either the Louisville
protecting     everybody’s    rights.          Bar Association or the Criminal
lie marvels that some law school               Law Section     of  the  KBA is
graduates     from his Chase Law               $55.00;  the registration    fee
School class of 1979 have never                for non-members is $75.00.
participated      in a trial.     Ray
 finds the courtroom experience
pleasurable      and that     contri               TRIAL PRACTICE INSTITUTE
butes    to    his    success   as a
public defender.                               DPA’s     Third     Trial    Practice
                                               Institute   will again be held in
Ray is a transplanted Hammond,                 Richmond from November 14-17,
Indiana native who was admitted                1984.    This    is   a chance      to
to the Kentucky Bar in May of                  practice     trial     skills    with
1980. He has taught the course                 feedback from national and in
"The Law of Mass Communication"                state faculty.
at Northern Kentucky University
for the last three years.
                                                      ANNUAL MAY SEMINAR
Ray says   regardless   of what
happens with his offices, he’ll                DPA’s 13th Annual May Seminar
probably  always   be a public                 is scheduled for May 12, 13 and
defender. We’re lucky to have                  14, 1985. It will again be at
him on our side.                               the Radisson in Lexington. Mark
                                               your calendars.
                                               Further    information   on   DPA
      *    *    *   *    *    *                seminars will appear in sep
                                               arate   mailings,    or you   can
The life of the law has not been               contact   Ed Monahan at     502
logic; it has been experience. The             564-5258.
felt necessities   of the time,    the
prevalent    moral    and   political          To register      for or to obtain
theories, intuitions  of public po             additionai     information  on the
licy, avowed or unconscious,     even          Search     and    Seizure   Seminar
the prejudices which judges share               contact    the    CLE  Department,
with their fellow men, have had a              Louisville      Bar Center,   Suite
good deal to do with the syllogism             200,    717    West Main Street,
in determining the rules by which              Louisville,       Kentucky   40202,
men should be governed.                         502 583-5314.

West’s Review
A Review of the Published Opinions
of the Kentucky Supreme Court and
Court of Appeals and United States
Supreme Court.
                   STATES     SUPREMECOURT          within the ambit of the Miranda
                                                    decision., ." However, the Court
The conservative      jurisprudence                 held that "there is a ‘public
of the United States          Supreme               safety’    exception    to the re
Court    continued      to    reshape               quirement that Miranda warni9s
criminal    law    as     the   Court               be given before        a suspect s
closed its 1983 term of court.                      answers    may be admitted      into
                                                    evidence,    and  the availability
In its most controversial             der           of that exception does not de
cision,    the Court has recog                      pend upon the motivation of the
nized a "public safety" excep                       individual    officers    involved."
don to the requirement              that            The Court refused to consider
custodial       interrogation          be           whether the officer’s       question
preceded by Miranda warnings.                       was in fact, prompted by con
New York v. Quarles,             35 CrL             cern for public safety as op
5       June       T[2,     1984.      In           posed to a desire         to obtain
Quaries,     police officers        were            evidence.      The Court found it
approached by a woman who told                      sufficient     that   the question
them she had just been raped at                     was reasonably related to pub
gunpoint.       The woman gave a                    lic safety.
description     of the suspect and
said the man had gone into a                        The Court’s decision in Qarles
nearby     supermarket.         Entering            represents       an  unprecedented
the    supermarket         the    police            digression     from the straight
spotted the defendant who fled                      path steadfastly    followed by it
to the rear of the store.             The           in applying Miranda.       No other
police   apprehended the defep                      exceptions    to the dictates     of
dant and found that he had on                       Miranda have been permitted.
an empty shoulder holster.            The           Clearly,    the Court’s    decision
police handcuffed the defendant                     promises to give rise to evi
and,    without         first     giving            dentiary hearings to determine
Miranda     warnings,        asked    him           whether an officer’s      questions
"where the gun was." The de                         served    the public     safety   or
fendant     indicated       some empty              were designed solely to elicit
cartons and said "The gun is                        an    incriminating      admission.
over there." At the defendant’s                     Justices Marshall, Brennan, and
trial,    the trial         court   sup             Stevens dissented in an opinion
pressed the gun and the state                       critical    of the majority      for
ment because the efendant             was           "destroying forever the clarity
not    first      advised       of    his           of Miranda.. ."
Miranda     rights.       The Supreme
Court agreed that the defendant                     The Court announced two       deci
was in police custody at the                        sions  affecting   the        Sixti
time of the question so that
"the facts of this case come                                Continued,    P. 5

Amendment right         to effective              No evidence was introduced by
assistance of counsel.           In U.S.          the    defense.        Ultimately       the
v. Cronic, 35 CrL 306 May 14,                     defendant       was       sentenced       to
1V84 a unanimous Court held                       death.    The Supreme Court held
that an inquiry into counsel’s                    that    the proper standard             for
actual performance at trial            is         assessing counsel’s           performance
a prerequisite         to a finding               was that of "reasonably effec
that a defendant was denied the                   tive assistance."          However, even
effective      assistance     of coun             representation          which is less
sel.    The defendant       in Cronic             than reasonably effective              must
was charged with complex mail                     be prejudicial          before a Sixth
fraud     charges     involving     more          Amendment       violation        will     be
than     $9,000.000.      Twenty-five             found.     The Court articulated            a
days     before     trial     a    young          precise      standard       for the ne
lawyer who had never partici                      cessary      showing of prejudice:
pated in a jury trial was ap                      "The defendant must show that
pointed     to represent        the de            there     is     a    reasonable       pro
fendant.       The    Tenth      Circuit          bability      that,      but for coun
Court of Appeals held on these                    sel’s     unprofessional           errors,
facts that there was a depri                      the result         of the proceeding
vation of effective         assistance            would     have       been     different."
of counsel.        The Supreme Court              Applyi’ng these standards to the
reversed.      "Respondent can make               facts     before       it,     the   Court
out    a    claim    of ineffective               concluded           that       "counsel’s
assistance only by pointing to                    strategy choice was well within
specific     errors made by trial                 the    range       of    professionally
counsel."                                         reasonable         judgments.. ."       and
                                                  any error         was in any event
In Strickland v. Washington, 35                   nonprejudicial             "given       the
CrL 3066 May 14, 1984,               the          overwhelming aggravating              fact
Court further elaborated on the                   ors."     Justice       Marshall,      dis
standards for judging claims of                   senting,       chastised       the Court
ineffective         assistance         of         for its failure           "to take ade
counsel.       The     defendant       in         quate account of the fact that
Washington entered guilty pleas                   the locus of this case is a
to    three     counts     of   capital           capital sentencing proceeding."
murder. At a subsequent capital
sentencing hearing before the                     In Nix v. Williams, 35 CrL 3119
trial    judge,     defense     counsel            June    TI,    1984,    the    Court
called no character           witnesses           again had before       it the de
and introduced        no psychiatric              fendant in Brewer v. Williams,
testimony, even though the de                     430 U.S. 387 1977.         In Brewer
fendant      asserted     during     the          v.    Williams,    the     defendant
plea colloquy that he was under                   successfully      challenged      the
extreme stress at the time of                     admissibility      of    statements
the crimes       Counsel chose in                 made by him directing         police
stead to rely on the defen                        officers     to a child     victim’s
dant’s    assertions       during    the          body.    The statements were made
plea      proceedings,          thereby           while the defendant was being
avoiding         cross-exami.nation               transported     by the police       in
Counsel      also    chose     not    to          response     to comments by the
request     a presentence        report           police that the victim deserved
since this would have revealed
the defendant’s        prior    record.                     Continued,       P. 6

a "Christian burial."              Because          the Supreme Court reconized an
the  statements were obtained in                    "inevitable     discovery       excep
the absence of the defendant’s                      tion   to    the    "fruit     of the
counsel, the Supreme Court held                     poisonous        tree"       doctrine.
that     the      defendant’s         Sixth         "{When, as here, the evidence
Amendment right to            counsel was           in question       would inevitably
violated.        However, the Court                 have been discovered           without
noted     in Brewer v.            Williams          reference    to the police error
that,    even though the state                      or misconduct,         there    is   no
ments would not be admissible,                      nexus sufficient        to provide a
evidence       concerning       the body            taint    and     the     evidence    is
found      as    a      result     of the           admissible."      In a dissenting
statements might be admissible                      opinion,    Justices      Brennan and
on the theory that               the body           Marshall state that they would
would      ultimately         have     been         permit    recourse      to the     "in
recovered       anyway. At the de                   evitable     discovery"      exception
fendant’s       retrial,       the state            only on the basis of "clear and
court found that the body would                     convincing"     evidence that the
have been          recovered       in   any         evidence      would       have     been
event, and therefore              evidence          discovered.
regarding       it     was admissible.
The court noted that the body                       In Welsh v. Wisconsin, 35 CrL
was found within an area being                      3051 MayT4, 1984, the Court
subjected         to      an     intensive          held that a warrantless night
search      at     the     time    of the           time entry into a defendant’s
defendant’s           statements.       The         home   to   arrest   him  for   a
Supreme Court upheld the rea                        nonjailable      drunk   driving
soning      and      findings      of the
state trial court.            In so doing                    Continued,    P. 7.

                              loww, r wr ‘you
                               uatw 1’XJN& uR


                  Copyright 1984, United Press Syndicate
             Reprinted with Permission   All rights reserved.

                                        by     TJ.S.   682     1972,      that    "the
offense     was not justified
                      and     therefore        right      to   counsel     does    not
any    exigency
                                               attach until the initiation           of
violated the Fourth Amendment.
                                               adversary       judicial      proceed
A witness told the police that
the defendant’s vehicle had run                ings. . ."    The Court considered
off    the    road     and    that    the      the defendants         to be suffi
defendant had abandoned it, on                 ciently     protected by the Fifth
                                               Amendment prohibition           against
foot, and in what appeared to
be   an     inebriated      condition.         pre-indictment         delay,     which
The police       proceeded       to the        wou1c require       dismissal of the
defendant’s      home      where     they       inditment       "if   the defendant
arrested him. Under these cir                   can prove that the government’s
cuin.stances, the Court held the                delay in bringing the indict
arrest unreasonable.          The Court         ment was a deliberate device to
had previously       held in Payton             gain an advantage over him and
v.   New York,         445    U.s. 573          that    it    caused     him    actual
T98r       tiE     "absent     probable         prejudice      in    presenting     his
cause      and    exigent        circum         defense."       Justice      Marshall
stances, warrantless arrests in                 dissented.
the home are prohibited by the
Fourth Amendment."           In deter              In California v. Trombetta, 35
mining      that     there      was     no         CrL 3127       June 11,        1984,    a
exigency sufficient         to support             unanimous Court        held that due
the     defendant’s        warrantless             process does not require             the
arrest,     the Court emphasized                   police to preserve a          sample of
the minor nature of the under                      the    defendant’s       breath,     the
lying offense.       "[ut is diffi                 alcohol     content     of which was
cult to conceive of a warrant-                     used to obtain the defendant’s
less home arrest that would not                    conviction of drunken driving.
be    unreasonable         under       the         The defendant argued that had
Fourth      Amendment       when      the          the breath sample been saved
underlying offense is extremely                    the    defense      might have been
minor. ‘     Justices      White      and          able    to    impeach the breath
Rehnquist dissented.                               alyzer test results.          The Court
                                                   rejected     the defendant’s argu
The Court       held    that   prison              ment: "Whatever duty the Con
inmates     subjected     to admini                stitution     imposes on the states
strative      segregation     pending              to  preserve evidence, that duty
the investigation       of a prison                must be limited           to evidence
murder, which the inmates were                     that might be       expected to play
later    indicted    for and ulti                  a sinificant        role in the sus
mately convicted of, were not                      pect s defense."         The breatha
entitled    to the appointment of                  lyzer     evidence     did not meet
counsel.      United     States     v.             this     test     since     it    lacked
Gouveia, 35 CrL 3091 May 2                         obvious        exculpatory        value.
1984.       The Court reversed       a             Moreover,       the    defendant     had
decision of the Ninth Circuit                      access to other means            of im
Court of Appeals which had held                    peaching the breathalyzer            re
that the inmates Sixth Amend                       sults,     such   as examination of
ment right to counsel attached                     the machine used in the test.
when they were in segregation
for    ninety     days. The Supreme
Court     reiterated      its   view,
stated in Kirby v. Illinois        406                      Continued,      P. 8

                                                    by the prosecution,       which the
In Ohio v. Johnson, 35 CrL 3119
June ilTl984,           the Court held              prosecution      withdrew      before
that the Fifth       Amendment Double               entry    of   a plea,      does   not
Jeopardy clause does not pro                        create    a right     to have the
hibit a state from continuing a                     bargain enforced. The defendant
prosecution       after      the    trial           ultimately     accepted    a second
court’s     acceptance,        over the             plea offer and plead guilty.         A
state’s    objection,       of the de               m,ajority of the Eight Circuit
fendants      guilty      plea     to     a         Curt    of Appeals subsequently
lesser included offense arising                     held that "fairness"       precluded
from the same incident.                The          the prosecution’s     withdrawal of
Court    held     that,      while     the          the first      plea bargain      once
double      jeopardy        prohibition             accepted by the     defendant.    The
protects     defendants       from mul              Supreme      Court      unanimously
tiple punishment for a single                       reversed     the    Eight     Circuit
offense,     it does not prohibit                   after     concluding      that     the
the     state       from     trying       a         defendant’s      guilty    plea   was
defendant,      at a single          pro            voluntary    and intelligent       and
ceeding,     for multiple offenses                  "in no sense induced by the
arising out of a single course                      prosecutor’s withdrawn offer."
of conduct.       The Court reasoned
that the defendant in Johnson                       The Court unanimously held that
"has not been exposed to con                        the Sixth Amendment right to a
viction on the charges to which                     public    trial      extends     to pre
he pleaded not guilty,           nor has            trial     suppression          hearings.
the State had the opportunity                       Wailer v. Georgia, 35 CrL 3089
to marshall        its evidence and                 May     2T       1984.      The      Sixth
resources more than once or to                      Amendment forbids the closure
hone its      presentation        of its            of such a hearing over defense
case through          a trial."      "The           objection        unless     the      party
acceptance of a guilty plea to                      seeking      closure      advances       an
lesser included offenses while                      overriding        interest      that     is
charges on the greater offenses                     likely to be prejudiced without
remain pending,         moreover, has               closure, closure is no broader
none of the implications of an                      than    needed       to   protect      the
‘implied acquittal’           which re              interest,      there are no alter
sults from a verdict convicting                     natives     to closure,          and the
a defendant on lesser included                      trial     court       makes     adequate
offenses rendered by a jury. . ."                   findings      to    support      closure.
In short, the Court held that a                     Applying      these     standards      the
trial   court’s acceptance, *over                   Court concluded that closure of
prosecutorial        objection,     of a            an entire seven-day suppression
defendant’s      guilty     plea to a               hearing      in     order     to     avoid
lesser    included       offense     does           "publication"       of two and one-
not prevent the prosecutor from                     half hours of wiretap tapes was
continuing to seek the defen                        unjustified.
dant’s      conviction          of     the
greater        offense."        Justices            In Patton v. Yount, 35 CrL 3149
Stevens and Marshall dissent.                       June     27,   1984,    the Court
                                                    addressed, a claim that pretrial
In Mabry      v. Johnson,   35 CrL                  publicity    so infected a crim
3133 June     Ti, 1984, the Court                   inal   trial   as to deprive the
held that     a defendant’s accep
tance of a     plea bargain offered                           Continued,      P. 9

   defendant of his right to an                                not rebutted by jurors’ state
   impartial jury. The defendant’s                             ments of impartiality.        However,
   first conviction was reversed.                              the Court also      noted that Irvin
   At his second trial       some four                         held that      "the trial       court F
   years    later,     the    defendant                        findings of impartiality          might
   sught a change of venue on the                              be overturned only for            mani
   grounds that prejudicial        pub                         fest error."       The Court went on
   licity prevented the selection                              to hold that the trial court’s
   of an impartial jury.       The voir                        findings     of impartiality        ans
   dire showed that all but two of                             wered questions          of fact,    not
   163 veniremen had heard of the                              ones of mixed law and fact.
   case and 777 would carry an                                 Consequently,        those     findings
   opinion into the jury box.       The                        were entitled       to a presumption
   trial   court nevertheless      suc                         of correctness          by a federal
   ceeded in seating a jury and                                habeas court.         Justice Stevens
   denied    the   change of venue.                            and Brennan dissent          and would
   The Supreme Court upheld that                               have defined        the question of
   denial.    The Court noted that,                            juror     partiality       as a mixed
   under Irvin v. Dowd, 366 U.S.                               question of law and fact. Based
   717 1961,       pervasive    adverse                        on the record          the dissenting
   publicity    may rise to such a                             justi,ces   would have held that
   level   as to create        a Irpre_                        the defendant         was denied      an
   sumption of prejudice" which is                             impartial jury.

                                                                Finally, in Thigpen v. Roberts,
                                                                35 CrL 3168 June 27, 1984 the
Pepper.     ...   and Salt                                     Court held that the defendant’s
                                                               manslaughter conviction must be
                                                               vacated     because     of   prosecu
                          THE WALL STREET JOURNAL
                                                                tonal     vindictiveness      in ob
                                                               taining it. Following an acci
                                                               dent,    the defendant      was con
                                                               victed     of    reckless    driving,
                                                               driving       while     intoxicated,
                                                               driving with a revoked license,
                                                               and driving on the wrong side
                                                               of the road. When the defendant
                                                               appealed       these      misdemeanor
                                                               convictions     the state district
                                                               attorney obtained an indictment
                                                               for manslaughter        based    on a
                                                               death which had resulted          from
                                                               the incident. The Supreme Court
                                                               found     that     this    procedural
                                                               sequence suggested a "realistic
                                                               likelihood     of vindictiveness,"
 "If we can drum up a UtUe more pre-trial                      requiring reversal of the man
 publicity, I think we can gel a change of venue."             slaughter       conviction       under
                                                               Blackledge v. Perry, 417 U.S.
                                                               21 1974.       The Court dismissed
                                                               as irrelevant the fact that the
   "From The Wall Street Journal                     -         misdemeanor       convictions     were
     Cartoon Features Syndicate"                                       Continued,     P. 10

obtained by the county attorney                        still    exercise    discretion     in
while the felony conviction was                        excluding prior convictions as
obtained      by     the     district                  too    remote.     The    Richardson
attorney.    "To   the extent      the                 Court    observed     "{wjith    this
presumption [of vindictiveness]                        holding     we    put    all    prior
reflects    ‘institutional       pres                  felonies    on the same footin
sure that...might...         sub-con                   for purposes of impeachment.
sciously motivate a vindictive                         The holding in Richardson also
prosecutonial...       response to a                   reiFistates the literal language
defendant’s      exercise     of his                   of tR 43.07 that a witness may
right to obtain a retrial...’                          be impeached by showing that
it   does    not    hinge     on   the                 "he has been convicted          of a
continued     involvement       of    a                felony."
particular     individual."       Jus
tices Rehnquist, O’Connor, and                         In Diehi V. Commonwealth, Ky.,
Powell dissent.                                        31 K.L.S.      8 at 6 June          14,
                                                       1984     the Court       applied    its
                                   KENTUCKY            decision in Richardson, supra,
                                                       to hold that the trial            court
 The    Kentucky    Supreme     Court                  properly admitted evidence of
 rendered a number of important                        the defendant’s prior burglary
 decisions in May and June.         In                 conviction. The Court also held
 a surprising decision the Court                       that the trial        court properly
 overruled    Cotton    v.   Common                    excluded defense evidence that
wealth,    Ky.,   454 S.W.2d 69’E                      the defendant’s wife’s consent
 1970.     Commonwealth v. Rich                        to a search was involuntary.
 ardson,   Ky., 31 K.L.S. 8 at 5                       The trial       court    had earlier
 June 14, 1984.       In Richardson                    held at a pretrial        suppression
v.   Commonwealth,     Ky.App.,    30                  hearing     that    the   consent was
K.L.S. 7 at 1 May 13, 1983,                            voluntary.        The Supreme Court
 the Court of Appeals sought to                        found that       the trial     court’s
expand Cotton by holding that a                        ruling was supported by sub
defendant on trial for burglary                        stantial     evidence,    "therefore,
may not be impeached with a                            there    was no       error    in   the
prior burglary conviction which                        court’s    refusal     to submit the
 is identified    as such to the                       issue to the jury."           Finally,
jury.    The    Kentucky     Supreme                   citing     Commonwealth v.        Gadd,
Court     granted     discretionary                    Ky., 665 S.’1.2d 915 14,            the
review to reverse the decision                         Court held that the defendant
of the Court of Appeals and                            could not challenge the valid
overrule     Cotton.     The    Court                  ity of a prior felony convic
noted that the effect         of its                   tion    introduced      at PFO pro
decision was to reinstate Cowan                        ceedings ‘because "[t]he          ques
v. Commonwealth, Ky., 407 S.W.                         tion of the validity of a prior
     695    1966.      Pursuant    to                  conviction      is    a   preliminary
Cowan, a witness may be asked                          matter and any attack           on its
if he has been previously con                          validity must be made prior to
victed    of a     felony.    If   he                  trial."
denies it, proof of the prior
conviction    may be introduced.                       In   Rackley  v.  Commonwealth,
However, in no case may evi                            Ky., 31 K.L.STB at 4 June 14,
dence of the nature          of the                    1984,    the  Court held that
prior felony be placed before
the jury.     The trial court may                              Continued,     P. ii

                                              -   10    -
                                                  evidence that the defendant’s
capital murder cases constitute
                                                  wife was an heir of the victim.
an exception to the limitation
on a judge’s sentencing auth
        imposed by KRS 532.110                    The Court addressed an ethics
lc.         The statute         provides          issue in Summit v. Mudd, Ky.,
                                                  31 K.L.S.       8 at3         June     14,
that "[t]he aggregate of con
              indeterminate         terms         1984. The plaintiff          in Summit,
secutive                                                                             repre
         not exceed        in maximum             a   criminal       defendant
length     the     longest      extended          sented by the Jefferson County
term which would be authorized                    Publc Defender, sought a writ
by KRS 532.080 for the highest                    of    prohibition       disqualifying
class of crime for which any of                   the     entire      office       of     the
                                                  commonwealth         attorney         from
the sentences is imposed."              At
the    conclusion       of Rackley’s              participating        in    the      prose
death penalty trial,          the trial           cution of his case because a
court sentenced Rackléy to life                   member of the staff had for
imprisonment for murder and to                    merly represented          the defen
twenty years for burglary and                     dant.       After     the    lawyer       in
ordered      that     the     terms     be        question was appointed             to re
served consecutively.           The Ken           present     the defendant he ac
tucky Supreme Court held that                     cepted     a job with          the com
this was permissible.          The Court          monwealth       attorney’s        office.
had previously held in Shannon                    The defendant sought a writ of
v. Commonwealth, Ky., 562 S.W.                    prohibition         based       on      the
2d 301 1978 that KRS 532.110                      appearance of impropriety which
 lc       precludes      a life       sen         these facts created.           The trial
tence and a sentence           to a term          court denied the writ and the
of years        from being         served         Court of Appeals affirmed.             The
consecutively.          The      Rackley          Supreme Court remanded               for a
Court    emphasized        that     "Lain         "hearing to determine if there
examination of KRS 532.080...                     has been any actual prejudice
discloses      that capital        murder         as a result         of a breach of
cases are specifically          excluded          attorney/client         confidential
from mention." The Court con                      ity."       The Court held that
cluded     that      "[i]nasmuch        as        "actual prejudice must he shown
discretion       is    given     to    the        before the commonwealth attor
tri,al court in the absence of                    ney’s entire staff is disqual
the statutory         exceptions,       we        ified."       "The mere possibility
find no error in running these                    of the      appearance       of impro
sentences consecutively."              The        priety     is    not sufficient           to
Court     also      held     that      the        disqualify      the entire staff of
defendant’s       rights      were     not        the      commonwealth          attorneys
violated     by an identification                 office from further prosecution
procedure which resulted in the                   of the case."
identification        of the defen
dant’s car as a vehicle seen at                       Finally,    the   Court  held  in
the scene. "We are cited num                          Garrett   v. Commonwealth, Ky.,
erous cases involving            lineups              31 K.L.S.     8 at 7 June     14,
but none requiring a li,neup of                       1984, that for purposes of KRS
similar    inanimate      objects be                  532.0803b       a person is "over
fore identification         is permit                 the age of eighteen" "from the
ted." The Court similarly              re             first    moment of the day on
jected argument that the trial
court     should      have      excluded                     Continued,     P. 12

                                             -   11    -
                                                        defendant’s       convictions       of
which his eighteenth     birthday                                   and s       a persistent
falls. . ." With this decision                          f1ony offender based on error
the Court rebuffed the argumefl                         of the trial court in advising
that "over the age of eighteen                          the jury panel in voir dire
means at least nineteen.                                that    the    trial     was    to  be
                                                        bifurcated      and    that    at  the
                        COURT   KENOFAPPEALS
                                   TUCKY                          stage     the defendant’s
                                                        prior felony convictions would
The Kentucky Court of Appeals                           b introduced in support of an
 rendered        several         decisions
                                                        erthanced sentence.         The matter
 during   May and June. In Thurman                           the PFO charge was then
                             Ky.App., 3T                of
 V.   Commonwealth,                                     fully explored in the common
 TTL.S.   6 at 8 May 4, 1984 the                        wealth’s voir dire in an effort
 Court reversed the defendant’s
 conviction         of       first-degree               to "smoke out" any jurors who
                                                        could not impose an enhanced
 perjury.    A conviction of first                                   One such juror was
                          requires ‘that                sentence.
 degree     perjury
                                  made    "a            excused. The Court of Appeals
 the    defendant        have                           found this procedure to be re
 material        false       statement...
                            required      or            versible error.
 under     an     oath
 authorized by law."             Emphasis
               Conviction        of false               The Court of Appeals held that
 swearing requires only that the                        it was reversible error to fail
                                                        to    sequester    a jury       during
 defendant make "a false state
                                          or            their   deliberations    on a felony
 ment. . .under oath required
                                   Thurman              charge.     McIntyre    v.    Common
 authorized       by     law."
 testified     to    inconsistent      ali              wealth, Ky.App., 31 K.L.S. 6 at
 bi’s at a preliminary hearing                          9 May 4, 1984.              RCr 9.66
 and later        at trial.       At trial              specifically        states       that:
 of the resulting perjury charge                        "Whether the jurors in any case
 the    trial       court      failed     to            shall    be sequestered shall be
                                on    false             within the discretion          of the
 instruct      the     jury
 swearing.      The Court of Appeals                    court, except that in the trial
 held that the trial            court was               of a felony charge, after the
 obligated      to submit only the                      case is      submitted     for their
                                                        verdict,     they    shall    be   se
 issue of false swearing to the
                                        The             questered       unless      otherwise
 jury under KRS 523.0502.
                            that when a                 agreed to by the parties with
 statute     provides
                                  based on              approval     of the court."        The
 charge of perjury is
 the    making       of      inconsistent               Court of Appeals stated as its
 statements                   perjury     or            holding that "[I]t is the duty
 false swearing would           be estab                of the trial judge to see that
                                                        the     sequestration       rule     is
 lished by the making of the two
 statements, the person may only                        complied with unless there is a
 be convicted         of false swear                    waiver noted in the record."
 ing."    The Court hei1 that the
                                                        In   Cheeks    v.  Commonwealth,
 defendant      did not waive his
                           to have the                  Ky.App., 31 Kt.S.   7 at 1 May
 statutory      right
                                to    false             11, 1984, the Court held that
 charge      restricted
 swearing by failing to object.                         th situs of an alleged crime
                                                        must   be   proven  as  a pre
                                                        requisite   to the exercise of
In Estep v. Commonwealth, Ky.
App., 31 K.L.S. 6 at 8 May 4,
                          the                                   Continued,’    P. 13
1984   the Court reversed

                                               -   12    -
                 ____                ____

                  by     the    trial                                      JULIE NAMKIN
court.     "[T]he    situs    of    an
alleged crime is not a venue
matter,    but is     a matter      of
jurisdiction      which     must    be
proven by the evidence."           The
Court    reversed     Cheek’s     con
viction since no evidence was
introduced at Cheek’s trial in
the Fayette Circuit         Court to
show that the charged offense
took place in Fayette County.
Judge White dissented.

In     Cloar       v.      Commonwealth,
Ky.App., K.L..                  June 29,
1984,       the    Court upheld                   the
warrantless           seizure               of      a
motorcycle cover from the de                                     Julie   joins   the    Appellate
fendant’s       driveway.         A police                       Branch of the Frankfort office.
officer came to the defendant’s
home to investigate                AT ORNEY
                                 an unre                                            RES IGNS
lated matter.            No one was at
home; however, the officer ob
served      the motorcycle                  cover,
which fit the description                        of a
motorcycle        cover       reported as
stolen,      in plain view in the
driveway. The Court cited Texas
v. Brown,               U.S.                   ,  103
S.Ct. 1535’ 1983            fo    the rule
that the plain view seizure of
property       is   lawful s.o long as
the seizing         officer       was en
titled     to be where he was at
the     time      he      observed                the
property.        The Court then held
that "a police officer                      in the
furtherance        of      a legitimate
criminal       investigation                has a                Mark Posnansky      has    been   an
legal     right       to    enter             those              Assistant Public Advocate with
parts of a private residential                                   the     Department     of    Public
property       which are         impliedly                       Advocacy since April, 1977. He
open to public use.               We limit                       served as a full-time appellate
the permissible           scope of this                          attorney    until  being promoted
right,     however, to driveways,                                to    Chief   of   the    Appellate
access roads, and as much of                                     Branch in October, 1982.        His
the       property’s           sidewalks,                        resignation is effective August
pathways,       and other areas as                               31, 1984. Mark will engage in
are necessary           to ena’6le                the            the private practice of law in
officer to find and talk to the                                  Louisville    at 730 West Main
occupants of the residence."                                     Street.
                                                                      *    *    *   *    *     *

                                                        -   13   -
Post- Conviction
Law and Comment

     HEALTH CARE FOR CLIENTS                       Failure to do so will result in
                IN    COUNTCONYFJAILS
                                INED               a deprivation of constitutional
                                                   due process.     Tate v. Kassulke,
The Minimum Standards for Local                    409 F.Supp. 651, 659 W.D.Ky.
Jails,    501 KAR 3:090E, require                  1976;    OAG 83-324. It is in
that all persons being admitted                    cumbent    upon    the   jailer  to
to a county jail be screened                       ensure    that    the    inmate  is
for health       problems    at   that             transported,    if necessary, to a
time.    501 KAR 3:090E, §19.                      hospital or other      facility and
The jailer     has the responsi                    to provide any necessary        se
bility     of   inquiring     into    a            curity. OAG    80-607, 82-166.
person’s      current     illnesses,
necessary medications or spec                      The most often asked question,
ial    health    requirements,     be              however,     is not who has the
havior,     body    marks    and   the             responsibility        for    obtaining
condition     of    his    skin    and             these services on behalf of the
orifices.    Under these standards                 inmate but who will pay for
inmates must also be informed                      such services       to the indigent
verbally and in writing of the                     inmate.     Kentucky     law clearly
methods to obtain health care                      provides that an indigent           in
while incarcerated in the jail.                    mate can not be denied access
501 KAR 3:09OE,17.           But what              to necessary health care simply
happens when the jailer         ident              because he can not afford the
ifies an inmate who is ill upon                    cost.    If the inmate needs care
admittance or an inmate later                      of a medical, dental           or psy
encounters some health problem?                    chological     nature, KRS 441.010
                                                   3    will generally require the
Although the arresting       officer               county to bear the expense from
has the primary responsibility                     the county jail         budget.    How
of obtaining medical assistance                    ever, if the inmate is a fed
for an ill or injured person                       eral prisoner payment is made
being taken to jail, the jailer                    as provided by contract between
cannot refuse        to accept    the              the United States           government
prisoner     as    long  as he      is             and    the    county     or    as   may
lawfully committed. KRS 71.040;                    otherwise        be    provided      by
OAG 82-116, 83-324.      The jailer                federal     law.    KRS 411.0104.
then has the responsibility        in              Also, if the inmate is held
relation    to      the new admit                  pursuant       to    a     contractual
tance, or any other inmate who                     agreement with the state            the
needs attention to health needs                    provision     of these       services,
during incarceration,     "to obtain               beyond routine care and diag
assistance    from proper medical                  nostic     services,     is paid as
authorities,     either on site or                 provided by the contract.           KRS
at a health care facility.       OAG               441.0105.         If the county re
79-455; See Sudderth v. White,
Ky.App., 621 S.W.2d 3T’191.                                Continued,     P. 15

                                          -   14    -
ceives a per diem payment the                       requiring     repayment    is   once
services will be paid entirely                      again comparable to the stan
by the state.      Id.      Different               dard used relating       to similar
considerations     me      into play                circumstances     for   services by
when the      cost    of necessary                  the    public     advocacy    system
medical,    dental      or     psycho               under KRS Chapters 31 and 431.
logical care exceeds $2500.          In             KRS 441.0108.
that situation      the state must
reimburse    the county for the                     It is interesting       to note that
excess cost but only if, 1 the                      whil the     Attorney General       in
care is    "necessary",        2   the              1979 interpreted       medical   care
inmate is indigent or is unin                       under KRS 411.010         to include
sured and, 3 the reimbursement                      psychiatric care by a licensed
will   not exceed      the maximum                  medical     doctor     and    exclude
payments    allowed     to     similar              dental care, neither was spec
persons or facilities         for the               ifically     included     until   KRS
same or similar services under                      411.010 was amended by the 1984
the Kentucky medical assistance                     General Assembly. OAG 79-356,
program.   KRS 441.0106.                            79-642.    The Minimum Standards
                                                    for Local Jails,      however, have
 If an inmate        has previously                 specifically      required      since
 received   the     services    of an               January 1, 1983,          that emer
 attorney by the appointment of                     gency dental      and psychiatric
 the public advocacy system, the                    care, as well as medical        care,
 determination       of   whether      a            be available to the inmate at a
particular     unit of government
will bear the expense of health
 care will be easily determined
 since KRS 31.120 is the basis
 for the relevant inquiry.
441.0107.        However, no costs
 for the provision
                           of health
 services will be paid or reim                               -j
bursed by any unit of govern
ment unless      it is "necessary
care" which is defined as care
of a non-elective        nature that
can not      be    postponed
after the period of confinement
without hazard to the life or
                                                                U   I rii
health    of the prisoner.         KRS              level    equivalent    to    services
411.0109.      The attending phy                    provided to the        community in
sician     must     certify,     under              general.      501     KAR     3:090E,
oath, that such was the case in                     1l3.        A previous opinion by
order to obtain payment.           Id.              the   Attorney       General    which
If it is later determined tTTt                      determined     that   the cost      of
an inmate was not indigent at                       transportation      of a needy in
the time services were received                     mate to a medical facility          is
or is no longer a needy,,person,                    not included in medical "care"
he will be required          to repay               and can     not he paid as pro
the particular     unit of govern                   vided in KRS 441.010, but must
ment that has borne the expense                     be borne by the county in all
for the medical services.          KRS
441.0107.        The standard for                           Continued,    P. 16

                                           -   15    -
situations,    appears to remain                         without undue delay and in the
unchanged by the amended KRS                             proper     manner.      Since     the
411.010.    OAG 80-434. Security                         availability      of free     health
costs     will   also  apparently                        services     for    necessary   care
still   be considered in a sim                           will depend on a determination
ilar manner.    Id.;  OAG 81-213.                        of indigency equivalent to that
These expenses7 however, would                           made for the appointment           of
appear to be negotiable in any                           counsel, it is likely that any
contract between the county and                          cliept of the public advocacy
the state or federal      govern                         system will      qualify   for ‘this
ment.                                                    treatment.    Your client     should
                                                         therefore      be    assured    that
 To allow inmates to alert the                           should the need arise he will
 jailer to health problems, the                          not be left       to cope with a
 Minimum      Standards      for        Local            health problem alone due to his
 Jails    require such facilities                        inability to pay.
 to establish a sick call once a
 week for facilities          with Less                  RANDY WHEELER
 than fifty 50          inmates during
 the     preceding       month,         three                     *         *       *       *        *       *
 times     per     week     for         those
 facilities                   DEATHS
                with between fifty-                                                         INJAILS
 one 51       and two hundred 200
 inmates the preceding month and                         Robert Hogan, Jr., a prisoner in
 five times per week in those                            the Franklin County Jail, died on
 facilities     which house greater                      July 11, 1984 while in the jail’s
 than two hundred 200                inmates             isolation cell with another inmate.
 during that same period.                 501
KAR 3:O9OE,110.              The stan                    The cell was 5’ x 7’ feet with no
dards also ensure ongoing ade                            toilet, no  light and ventilation
quate ‘‘edica1 treatment               while             only through a metal grill in the
the inmate is incarcerated                 in            door.
the jail by requiring that any
medication administered by the                           The State Corrections Cabinet de

jail staff be given by persons                           termined the cell substandard and
trained by a medical authority.                          ordered it not used under any
501 KAR 3:O90E,119.                  But in              circumstances.
mates are prohibited from per
forming any medical functions.                           Hogan suffered from epilepsy, and
501     KAR      3:O90E,16.               The            was in jail on two minor offenses.
standards further require that
if    an    inmate     cannot         obtain             Th Frankfort               State       Journal          edi-
prescribed         treatment           while             toria lized
incarcerated       in the jail that
he be moved to another jail or                           It  is       that isolation   cell where
hospital     where those services                        Robert       Hogan Jr.    died that de
can he provided. 501 KAR 3:090                           serves the attention-and the moral
E.l21.                                                   outrage-of everyone in the Frank-
                                                         fort community. Jailer Stewart told
The foregoing information,  al                           The State Journal last week, "I
though brief,   hopefully  will                          don’t like to put a dog in there."
allow you to assist any client                           We c’tzn understand why.
in need of attention to health
problems to receive that help                                     *     *       *       *        *       *

                                                -   16    -
The Death Penalty

                   EXECUTIONS                                 ACTION UNDER THE BIG TENT:
                                                                    NINE IN A ROW
The deceased since the listing
in The Advocate, Vol. 6, No. 4                            This column has noted a few
at ZTJune,   1984:                                        times    the     recent            string           of
                                                          defeats      the     condemned              have
20    Carl Shriner FLA. 6/20/84                           suffered of late in the U.S.
21    lyon Stanley GA.   7/11/84                          Supreme Court.                              Spazianov.
22    David Washington FLA.                               Florida,      35 CrL 3179                1984
                         7/12/84                          makes 9 in a row.                    It seems
                                                          that    defense       attorneys                  are
                         DATES   INKENTUCKY               having     no     luck EXECUTION at    all          in
                                                          convincing this Court that any
Rehearing    was denied               by the              federal      constitutional                error
Kentucky     Supreme            Court       in            occurs in capital trials.                        The
Harold McQueen’s case on June                             Court seems intent on granting
14, 1984 and in Gene White’s                              review and foreclosing as many
case     on    July             5,       1984.            federal     constitutional               claims
Executions were set for July 13                           as possible.
and    August    3       respectively.
Although    both men have many                            In    Spaziano,     at    issue     was
legitimate        legal               avenues             Florfda’s statute which permits
remaining,    and it             is     incon             the trial judge to override the
ceivable they could be executed                           jury decision on life or death.
anytime    soon,    the Court was                         A second issue was whether Beck
apparently     required              to    set                  Alabama,     447     U.S. v.  625
these   dates    by KRS 431,218.                          1980,      was violated        by the
"When a judgment sentencing the                           trial   court’s decision not to
defendant    to death              has been               instruct     on   lesser      included
affirmed, the mandate shall fix                           offenses    unless the defendant
the day of the execution as the                           would waive the expired statute
fifth Friday following the date                           of limitations        as    to    those
of the mandate of the court."                             lesser    included       degrees     of
Stays were entered on June 21                             homicide.
for McQueen and July 6                     for
White. Such stPys are automa                              The Court quickly disposed of
tic.   See            Wil iams v.Missouri,                Beck     issue.     "In   this  case,
103 S.cT.     3521,           3522      1983              petitioner      was given a choice
Blackmun, J.       "I must stay...                        of whether to waive the statute
[any]   execution        pending com                      of    limitations       on the lesser
pletion of direct review as a                             offenses      included    in capital
matter of course." CR 7.44a,                              murder.     He knowingly chose not
as amended effective January 1,                           to do so. Under those circum
1985,   reflects     this           reality,              stances,     it was not error for
providing for an automatic stay                           the    trial     judge to refuse to
in all cases appealed to the
United States Supreme Court.                                         Continued,           P. 18

                                                 -   17   -
instruct    the jury on the lesser
included    offenses."   35 CrL at                    THE
3202.                                                                           KENTJCKYS DEAtH
                                                                                 ROW POPULATION   19

Of more concern was Spaziano’s
5th. 6th, 8th and 14th Amend                                                    PENDING CAPITAL

ment challenge        to the trial                                               INDICTMENTS
                                                                                  KNOWNTOPPA      91
judge’s    sentence     of death in
light   of the     jury’s   decision
that    life     imprisonment     was
sufficient.      A majority of the
        had     recommended      life                 Although         conceding          that
imprisonment.      "While the crime                   Spaziano’s     "argument obviously
for which petitioner       was con                    has some appeal" and "acknow
victed was quite horrible’, the                       ledg[ing]    the presence of the
                                                      majority     view       that     capital
case against       him was rather
                                                      sentencing,      unlike     other sen
weak, resting as it did on the
largely    uncorroborated     testi                   tencing, ‘should be performed by
mony of a drug addict who said                        a jur7",    the majority refused
that petitioner had bragged to                        to    ‘conclude        that      placing
him of having killed a number                         responsibility        on     the   trial
of women, and had led him to                          judge to impose the sentence in
the victim’s      body." Spaziano,                    a capital     case is unconstitu
35 CrL at 3210 n. 34 Stephen’s,                       tional." 35 CrL at 3203-04. "We
J. dissenting.                                        are not persuaded that placing
                                                      the responsibility         on a trial
The     Court        6-3        rejected              judge to impose the sentence in
Spaziano’s      constitutional        at              a capital       case is so fund
tacks on Florida’s          jury over                 amentally     at odds with          con
ride procedure. The Court notes                       temporary standards of fairness
that only Florida, Alabama and                        and decency that Florida must
Indiana are "the only states                          be required to alter its scheme
that allow a judge to override                        and give final authority to the
a    jury’s      recommendation        of             jury to make the life or death
life.. ." 35 CrL at 3204 n. 9.                        decision."      35 CrL at 3204.
Noticeably      absent is Kentucky
which,    in practice,         does not               Interestingly,     the Court seems
permit    a judge to reject              a            yet unconvinced of the worth of
jury’s recommendation of life.                        the "new" death penalty. "While
Of approximately          seventy-five                it    is to behoped that current
cases which have proceeded to                         procedures have greatly reduced
the sentencing phase in eight                         the risk that jury sentencing
years in Kentucky, no judge has                       wtll    result   in arbitrary      or
rejected      a    jury’s     recommen                discriminatory      application    of
dation.     In contrast,         Florida              the death penalty. . ." 35 CrL at
judges     have      "sentenced       the             3203. Worth reading is Justice
defendant to death after a jury                       Stephens    dissent    as it    crys
had recommended a sentence of                         talizes    his view of capital
life imprisonment" eighty-three                       punishment.    Perhaps surprising
times. .:35          CrL     at      3205             is Stephen’s     out- of- hand re
Stephens, J. dissenting.
                                                              Continued,      P. 19

                                         -   18   -
jection     of "protection       of so
ciety" as a rationale         supjort
 ing the death penalty.             ‘[fln
view of the availability                of
 imprisonment     as an alternate
means of preventing the defen
dant from violating the law in
 the future, the death sentence
would clearly be an excessive
 response to this         concern. We
 are thus left       with deterrence
 and retribution       as the justi
.fications    for capital      punisti
ment."     35 CrL at 3207 dis
 senting opinion.       "Thus, in the
 final    analysis,     capital      pun’*
 ishment rests not on a legal
hut an ethici         judgment      -   an
 assessment of what we called in
Enmund      ‘moral guilt’      of the                 to laugh.    He told          one ques
 defendant."     35    CrL    at     3208             tioner that he had not spoken
 dissenting      opinion.      Justice                to his mother because he was
Stephens concedes he was wrong                        traveling   on         ‘flying    saucer
when he joined the opinion in                         number 210.’      Finally,        a re
             v. Florida,     428 U.S.                 porter asked him whether he was
 242, ‘252 1976          opinion        of            acting crazy. ‘God told me to
Stewart,     Powell and Stephens,                     act crazy’ , he said,           ‘because
J.,     suggesting     that judicial                  you all been acting crazy to
 sentencing      would      lead        to                    Newsweek at 69 June 11,
 "greater     consistency      in     the             1984.
 imposition at the trial           court
 level of capital punishment. . ."                    On May 31, 1984, the Supreme
The Spaziano’s        dissent     states              Court refused to lift a stay of
 "[i]f anything the evidence in                       Ford’s      execution       Burger,
override cases suggest that the                       Rehnquist    and    O’Connor     dis
jury reaches        the appropriate                   senting     based. on     the     11th
result more often than does the                       Circuits    opinion     which    held
judge." 35 CrL at 3207.            Appa               that "Ford’s claim that he is
rently, Kentucky judges agree.                        entitled   under the Eighth and
                                                      Fourteenth     Amendments      to    a
        SANE ENOUGH TO DIE                            procedural due process hearing
                                                      to   determine    whether     he    is
At   Alvin      Ford’s    last    press               currently   insane. . .raises    sub
conference before he was sche                         stantial   [procedural     and sub
duled    to       die  in    Florida’s                stantive]      issues..."       Wain
electric chair, he was led into                                 v. Ford, 52 L.W. 3873
the room "his eyes held tightly                       1984.
closed    and his hands         cuffed
across his chest like a mummy.                        KRS   431.2402      states  that
‘Hello Satan, hello Sath, turn                        "[i]f  the condemned person is
them back,’ Ford began. Then he                       insane. . .on the day designated
spoke for a bit about David and                       for the execution, the execu
Goliath and force fields           and,
for no apparent reason, began                                 Continued,     P. 20

                                             -   19   -
tion shall be suspended until                       NEW ASSISTANT PUBLIC ADVOCATES
the condemned IN restored
                    is                to                       OUR   FIELDOFFICES
sanity...    If   execution is sus
pended.. . the     commissioner       of
corrections      may transfer       the
condemned.. to the state
                .                  for
ensic    psychiatric      facility...
until     such    time    as    he    is
restored      to     sanity. . ."     No
standards    are given for "san
ity" nor is the statute           clear
on who makes this determination
-   -although     presumably it is
the governor.         As of yet, no
formal procedures have been set
up to handle         the Governor’s
consideration of issues such as
clemency and sanity.

        *   *       *   *   *        *                       LYNDA CAMPBELL

                                                    Lynda    works  at   the    London
Since I share the view that                         Office, she is shown here with
even if the appellant isiguilty                     Gary    Hudson,  also    of   that
he   "should   have had       twelve                office.
people with open minds,"           it
also "hotherts]    my conscience"
that he did not. I find nothing
curious    in  the   attitude     of
these    two   jurors.     On    the
contrary, we must cease to view
the constitutional     requirement
of a neutral     jury as a pro
cedural hurdle in the race to
convict the guilty and open our
eyes to its intrinsic    value. It
is the essential      for justice
under the law.

Dissenting       opinion,      Justice
Liebson      joined       by     Chief
Justice     Stephens        in    Glen
              Jr. v. Commonwealth,                           Hicks,
           S.W.2d         March 29,                              KEN TAYLOR
                                                    Shown     here    with     Allison
        *   *       *   *   *        *              Connelly   seated     and stand
                                                    ±ng    secretary   Brenda Kramer
                                                    and McGehee Isaacs,      directing
                                                    attorney,   works at the North-
                                                    point Facility    near Danville,

                                           -   20   -
                               Review                                            Fedral
A Review of Selected Federal Cases

        I.    ADMISSIBILITY OF                           missihility        of the         excluded
                      EXPERTTESTIMONY                    evidence      under DEFENSEthe     Federal
                                                         Rules of Evidence              and prior
      A. UNRELIABILITY OF                                Sixth    Circuit      decisions,        the
    EYEWITNESS IDENTIFICATION                            panel concluded that the issue
                                                         was a proper subject for expert
The Sixth Circuit             considered                 testimony since it would have
the "perplexing"      issues of the                      assisted the jury ifl evaluating
admissibility     of expert witness                      the eyewitness testimony.              "Dr.
testimony concerning the reli                            Fulero’s     testimony would have
ability     of eyewitness        identi                  provided        insight         into     an
fication.     In         United      Statesv.            eyewitnesses’ general inability
Smith,    No.            8i33436    June7,               to perceive and remember what
1984,     the court reviewed the                         is    seen     under       a    stressful
conviction      of a black          male                 situation".       Slip Opinion at 4.
whose conviction for bank rob                            Such insight is not within the
bery was based in part on the                            "common     sense"      of the        jury
pretrial     and in-court        identi                  under the meaning of Rule 702
fications by three white female                          of     the     Federal        Rules      of
bank employees.                                          Evidence.      Indeed, such expert
                                                         testimony        "explodes          common
At trial,     the defense sought to                      myths     about     an      individual’s
 introduce      the     testimony      of                capacity     for perception          under
psychologist      Solomon M. Fulero                      stress".     Slip Opinion at 4.
 who, along with Dr. Elizabeth
Loftus,     had     appeared       as  an                Of critical      importance to the
expert on eyewitness identifi                            "proper     subject"     inquiry   was
cation     in    over     60    criminal                 that     Dr.     Fulero,      in   his
cases    to rebut the eyewitness                         proffer,     offered     proof based
testimony.        The trial        judge,                upon the particular          facts   of
however,       ruled      the      expert                the    case    by     analyzing    the
testimony      inadmissible       on the                 reliability        of      eyewitness
grounds that the evidence did                            identification       in a hypothe
not involve a "proper subject"                           tical   factual scenario identi
for expert testimony, that the                           cal to the actual case.          Thus,
testimony would not assist the                           the testimony was not simply an
jury, and that the defense had                           abstract      discourse       on   the
not     demonstrated         that     Dr.                reliability        of      eyewitness
Fulero’s     research      had gained                    identification     in general.
the requisite       level of accept
tance in the field.                                      In    the   hypothetical,   three
                                                         witnesses    were shown a photo
A    majority      of     the  Court                     spread    containing  the defen
rejected     these    findings   and                     dant’s    picture.   Four months
ruled    that    the    trial  judge                     1.ater, they were shown a lineup
erred in excluding the expert
testimony.     Reviewing the     ad-                             Continued,       P. 22

                                                -   21

    containing     the defendant,          who         reliability        of   any    psycho
    was   the only person common to                    logical research.       While in 1979
    the    photo     display      and      the         the level of reliability         of the
    lineup.      Dr. Fulero testified                  expert testimony may          not have
    that the later line-up was not                     surpassed the quality of common
    independent       of    the     earlier            sense    evaluation,       see United
    photo     spread     and, that  States the                    v. Fosher, 5UF.2Id 381
    eyewitnesses             ‘ incorrectly                         Cir.1979,
                                                                  1st             four years
    transferred"       the      "familiar"             Iatier   the psychology of eye
    figure    from    one procedure          to        witness      ‘ identification       was
    the next. "Such      testimony might               gained reliability.         "Moreover,
    have been relevant to the exact                     [Dr. Fulero’s] testimony would
    facts before the court and not                      not only ‘surpass’ common-sense
    only might have assisted               the          evaluation,      it would question
    jury,    but might hive refuted                     common sense evaluation."         Slip
    their otherwise common assump                       Opinion at 6.
    tions about the reliability              of
    eyewitness          identification".               Reviewing      some of its            prior
    Slip Opinion at 5.                                 related    opinions,           the    panel
                                                       emphasized that "[t]his Circuit
    Additionally,      the expert might                has been particularly              mindful
    have provided insight         outside              of the dangers of misperception
    the    jury’s     "ken"    about   the             and   has     itself        relied     upon
    possibility        of    cross-racial              psych6Tgical            stucfies   of the
    misidentification        due to the                problems     of mfidentification
    fact that all three witnesses                      and suggestion."            Slip Opinion
    were white and since           it was              at 6     emphasis          added.       See
    unusual for black customers to                                United States v. Russell,    532
    patronize     the bank.      Further,              F.2d    1063      6th       Cir.    1976.
    the fact that a weapon was used                    "The    day may have              arrived,
    would, according to Dr. Fulero,                    therefore,       when Dr. Fulero’s
    increase     stress     and decrease               testimony        can       be    said     to
    the possibility         of a proper                conform to a generally accepted
    identification.       "The proffer in              explanatory             theory."       Slip
    this    case,    therefore,     demon              Opinion at 7.
    strated      that      Dr.   Fulero’s
    testimony may have helped the                          Finally, the panel undertook to
    factfinder understand the facts                        balance the probative value of
    of this case".       Slip Opinion at                   the evidence against its pre
    5.                                                     judicial   effect.  The probative
                                                           value of the evidence had been
    The panel      also rejected      the                  established    since the evidence
    trial   judge’s finding concern                        involved a proper subject and
    ing the level of reliability       of                  conformed      to   a   generally
    expert psychological       testimony                   accepted explanatory theory.
    in    the   field    of eyewitness
    identification.        Dr. Fulero’s                    Regarding  the issue    of pre
    proffer    established     that   the                  judice, the panel held that the
    American     Psychologial       Asso                   prejudice  envisioned  by Rules
    ciation had developed a sub                            403   and 702 of the Federal
    field in the area of eyewitness                        Rules of Evidence was prejudice
    identification      and   that    his                  to a criminal defendant, not to
    particular discipline contained
    the exactness, methodology, and                               Continued,     P. 23

                                                  -   22    -
the government. The panel sug                  Thomas on numerous occasions,
gested that a different,          more         including     just   before   the
restrictive      standard     of pre           shooting.   In support     of her
judice would apply when it was                 defense,   Thomas attempted    to
a defendant,       rather    than the          offer the testimony   of a social
government, who was seeking to                 worker as an expert witness on
introduce      expert      testimony.          the "battered woman syndrome".
The defendant’s right to a fair                However, the trial judge found
trial    is   a "strong       counter          the   witness    unqualified  and
vailing restraint"       on the gov            exclided the testimony.
ernment’s     right    to introduce
expert testimony.       Slip Opinion           Ultimately,    Thomas’ conviction
at 7.     Such a countervailing                was upheld by the Ohio Supreme
restraint    is not implicated in              Court. She then filed a peti
a case like this one where it                  tion   for    a writ      of habeas
is the defendant who seeks to                  corpus in federal court.         The
admit the expert testimony.                    case    was    referred     by   the
                                               District Court to a magistrate,
However, although the exclusion                who recommended that the writ
of the expert       testimony   was            be denied.     Although Thomas was
error, it was harmless in this                 informed    that    she would have
case    since    the     government            ten days to      file objection to
presented   uncontroverted     evi             the magistrate’s       report, none
dence that the defendant’s palm                were filed,      and   the District
print was found at the bank.                   Court adopted the magistrate’s
This evidence was said to have                 report and denied the petition.
wholly     discredited      Smith’s
alibi defense, since he denied                 Thomas timely filed a notice of
having ever been in the bank.                  appeal to the Sixth Circuit.
                                               However, since she had failed
  B.   BATTERED WOMAN S YNDROME                to    file    objections    to  the
                                               magistrate’s    report,   the Sixth
The concurring opinion of Judge                Circuit    held that     she waived
Jones in             Thomas v. Am, No.         her     right    to    appeal   and
83-3095 March 9, 1984 Jones,                   affirmed    the decision     of the
J. concurring        represents     the        District    CoUrt dismissing    her
first time that a federal cir                  petition.
cuit judge has commented on the
right   of a battered            female        While    Judge    Jones    concurred
defendant      facing        a   murder        with the    majority opinion, he
charge    to     introduce       expert        wrote separately      to note that,
testimony on the "battered wo                  if he  had reached the merits of
man syndrome" to support her                   the case, he would have granted
defense    that    she killed       her        the writ.      According to Judge
spouse in self defense.                        Jones,    the exclusion      of the
                                               expert    testimony     on the bat
Kathy Thomas was convicted of                  tered woman syndrome "impugned
murder for the death of her                    the fundamental fairness of the
husband in state court in Ohio.                trial process thereby depriving
At her trial,  she alleged that                Thomas of her constitutional
she shot him in self defense.                  right to a fair trial."         Slip
The evidence at trial     estab                Opinion    at 4     Jones    J. con
lished that the decedent was a
violent   man who had     beaten                       Continued,    P. 24

                                          -   23   -
                                             falsehoods   charged,   and that
curring.    Citing a 1978 Attor
                                             the decision   to prosecute Eddy
ney General Report on Domestic
Violence, Jones recognized that              was vindictively motivated.
the public and thus, juries, do
not understand the scope of the              The statements which were the
problem     concerning     battered          basis of the perjury indictment
                                             were   made      in   a hearing        in
women. "Furthermore,     they tend
to    be  unsympathetic      toward          chambers where the government
battered   women. They fail        to        sought to prove that Eddy had
understand,    for instance,     why         used an Ohio State University
battered    women do not       leave         College of Medicine diploma and
their partners."    Id. The expert           an    Ohio       State       University
testimony could have "clarified              college transcript         in a fraud
the unique psychological       state         ulent attempt to enlist             as a
of ‘the battered       woman"     and        physician in the United States
provided    an   explanation      for        Navy.    Specifically,        Eddy was
Thomas’ actions.     Id.   Thus, it          asked if     he had a submitted a
should have been admitted by                 diploma     from the Ohio State
the trial judge. "The law can                University College of Medicine
not be allowed to be mired in                to the Naval recruiter.              Eddy
antiquated notions about human               denied this.       He was also asked
responses when a body of know                if he submitted          an "official
ledge is     available   which     is        college transcript."          He denied
capable of providing insight."               doin    this as      well. At trial
Id.                                          Eddy s     defense     was     that    he
                                             spoke the       literal      truth    be
 II.   PERJURY, SUFFICIENCY AND              cause, though he conceded con
                   OSECUTORIAL               tacting the Navy and submitted
                                             various documents, he did not
In        United  States v. Eddy, No.        submit     an     authentic      medical
83-5675 June 21, 1984,            the        diploma       or     an      "official"
Sixth Circuit reversed both of               college     transcript.       The evi
the defendant’s convictions for              dence at trial showed that the
perjury      and dismissed        the        documents      were     in    fact    not
indictment.                                  authentic. Thus, he argued, his
                                             answers were not false and he
In   October,    1982,   Eddy was            could     not     be    convicted      of
acquitted by jury on the charge              perjury.
of making a false statement for
the purpose of influencing the               The Sixth Circuit         agreed. ‘Re
action of a federally      insured           lying    on            Branston v. United
bank. Six months later he was                States,    409 U.S. 352 1973,,
indicted    for   two   counts     of        the court held that a literally
perjury for testimony which he               true    answer cannot
                                                     ,                       form the
gave    during    an   in   camera           basis   for a perjury conviction
hearing in his prevTus        trial          even     though     made with the
while being cross-examined        by         intent    to deceive           the ques
the prosecutor corcerning prior              tioner.     The duty is on            the
bad acts.    Prior to trial, Eddy            prosecutor     to pin the witness
filed motions to dismiss         the         down.    "If the Assistant United
indictment on the grounds that               States      Attorney        sought     to
the prosecutor’s questions were              inquire about Eddy’s submitting
ambiguous, that the indictment
failed to set forth the precise                          Continued,   P. 25

                                        -   24   -
false documentation, the burden                to prosecute Eddy for perjury
was on the United States,    and               after he was acquitted at the
not the witness, to be concise                 earlier   trial was vindictively
and to the point." Slip Opinion                motivated.     While an acquittal
at 11.    "[I]f  the prosecutor                is not a            se bar to the
never asks the critical    ques                filing   of   perjury charges,            in
tion and never presses for an                  this    case      "the     perjurious
unequivocal   answer the defen                 nature of Edd,T’s testimony was
dant may not be convicted of                   not manifest.’      Slip Opinion at
false swearing."    Slip Opinion               15.    Thus,    the    circumstances
at 10.                                         pre-ented      warranted     applica
                                               tion of a presumption of vin
Eddy’s conviction        under Count           dictiveness.      See         United States
II was also reversed          and the                Goodwin,     102   S.Ct.v. 2485
indictment dismissed. The basis                 1982.
for the perjury conviction            on
this count was Eddy’s response                                          RESTRICTED            DIRE
to "a multiple question with at
least from separate inquiries."                Although      federal         district
In response to this question,                  courts   are vested        with wide
Eddy stated     that he did not                discretion   in controlling         voir
remember contacting        a Florida           dire, the   Court made clear in
hospital   and representing        him                         States v. Hill,
                                                                            United Nos.
self to be a physician in an                   83-5587 and 83-5588 June 29,
attempt   to secure employment.                1984, that this discretion can
The indictment,        however,     did        be abused.
not precisely      allege what was
false about this response         -   it       In the cited case,             the trial
simply alleged that he had in                  judge      committed          reversible
fact    contacted     the    hospital          error   by failing        to honor a
claiming to be a physician, but                defense request to question the
not that there was sufficient                  prospective      jurors          on     the
proof that he had remembered                   principles     of reasonable doubt
going there. The indictment did                and the presumption             of inno
not allege how Eddy’s failure                  cence. Citing           Swain v.Alabama,
to   remember    was      perjurious.          380 U.S. 202 1965,             the Court
"Any reading       of the charges              acknowledged     that the peremp
found in Count II of the in                    tory    challenge      right         is   a
dictment leads one to believe                  fundamental part of a criminal
that it has failed to set forth                trial   and that      its       violation
with    sufficient      clarity     the        requires     reversal        without      a
precise falsehood alleged,          the        showing of prejudice.                Here,
factual   basis     of that     false          the trial     court’s        failure     to
hood, and the objective          truth         query prospective jurors            on the
in stark contrast        so that the           requested     principles          of law
claim of falsity        is 4ear to             substantially       impaired            the
all who read the charge."         Slip         right    to exercise          peremptory
Opinion at 1.3.                                challenges.     Thus,     the convic
                                               tions   were reversed            and the
An alternative     ground for   re             case remanded for a new trial.
versing    the    convictions   and
dismissing    the indictment    was            NEAL WALKER
that   there    was a "realistic
likelihood"     that  the decision                      *   *     *    *             *       *

                                           -   25   -
Trial Tips

        MOTION PRACTICE      -   -                  the    parties.     In     pre-trial
        A MOVING EXPERIENCE                         practice thparties       listed are
                                                    usually those as found in the
The following     represents    one                 indictment    e.g.,    Commonwealth
person’s approach to the art of                            JoeToddThe             v.
                                                                         title’ of your
motion   practice.      While   the                 motion should allow the court
drafter  of this     article   pri                  to be immediately apprised of
marily files   pleadings in the                     what’ relief you are requesting
appellate courts, he has found                      e.g.,     "Motion for Continuance
that the same rationale applies                     Bsed on Missing Witness".
to any pleadings filed at the
lower court level.     It is hoped                           OPENING PARAGRAPH
that this step-by-step       break
down of motion practice        will                 The opening paragraph of your
provide some enlightenment       to                 motion should state with par
the local practitioner.                             ticularity      the    authorities
                                                    under which you are filing the
Any pleading filed in any court                     motion e.g.,     "pursuant to RCr
 is designed primarily         to com               9.04".    It should also contain
municate     and    persuade.       Such            a clear    statement   as to what
pleadings     come in all        forms.             relief you are requesting.
The most common is where the
practitioner     affirmatively       re                               BODY
quests    some sort      of relief.
Others are filed in an effort                       In the body of the motion you
to defeat      the Commonwealth’s                   should initially          set out any
request    for relief.      And fin                 procedural     history        which    is
ally,   some are filed to pre                       germane     to    the         particular
serve certain      rights     for the               issue.   For example in a motion
defendant even though you are                       for a continuance you may want
fully    aware    that    the     trial             to demonstrate that the defen
court will not grant the relief                     dant was indicted on May 1 and
requested.                                          the trial    was set for May 10.
                                                    The next part of the body of
             COMPONENTS                             the motion should explain your
                                                    need for             relief in as much
               CAPTION                              detail as necessary. You should
                                                    support    such    a request          for
Each motion must have a caption                     relief   with persuasive            argu
which should contain the name                       mentation.     At this point you
of the    court   to   which
motion is being addressed and
                              the                   can
                                                                        any    ‘   pertinent
                                                                         supports        your
the file    number of the case                      claim. But make sure you relate
usually    the  indictment   num
ber. Next comes the listing of                              Continued,       P. 27

                                           -   26   -
your argumentation   to the facts
of your case.

The next part of the body of a
motion should be any showin of
good faith.    For example, in a
situation   where you are asking
for a continuance      you should
demonstrate what steps you have
taken in order to prepare for
the case or in order to procure
the missing witness.        During
thelast   portion of the body of
a motion you should cover your
self in the expectancy that the
relief you have requested will
not be forthcoming.       For ex
ample, if you have moved for a
continuance   based on the ab
sence of a missing        witness,
then ask the court to allow the                         TIM RIDDELL
affidavit   containing   the pro
posed testimony of that witness              pleading   a   "Motion    and       Affi
to be read to the jury if the                davit."
continuance is denied.
                                             After   any signature      line   or
The next portion of the motion               notary    statement    you    should
should be the wherefore clause.              give notice     as to where the
This particular   clause should              particular    pleading   is to he
be in the     form of a "mini                filed, when it is to be filed,
order."   The judge should be                and, if you know, when it is to
able to take the clause and                  be heard.
make it readily into an order
granting relief   with a change                   CERTIFICATE OF SERVICE
of only a few words.
                                             The certificate      of service is
           S IGNATURE                        perhaps the most Tndispensable
                                             part    of    your    motion.    You
After   the   wherefore   clause             clearly    must    serve   opposing
comes the signature line.    You             parties and their attorneys. If
would, of course,    place your              you have doubts as to whom to
name, your address, your phone               serve,     follow     this    maxim:
number and you should identify               "Cover  yourself with paper." In
yourself as an attorney for a                other words, serve everyone and
certain party. After the sig                 their brother and their sister.
nature line you should place a
notary block if you have made                           ATTACHMENTS
statements in the motio which
are within your personal know                Some    pleadings   require  that

ledge and not supportable     by             certain    documents be attached
the records.  In that context,
you may wish to deem the entire                     Continued,       P. 28

                                    -   27   -
in support    of the relief     re               suggested that the words used
quested    e.g.,     affidavit    in             in the motion be your own.
support ofa      "Motion for   Con
tinuance Based on Missing Wit                    TIM RIDDELL
ness".     Attachments should be                                                      *
                                                         *     *    *     *     *
placed on the back of pleadings
when    they     are    mandatOrily
required   and/or when it will                         OBJECT IN LAYMEN’S TERMS
assist   the judge’ in making a
ruling on the motion.      If there              Whdn counsel     objects   to the
are certain     documents in the                 propriety of certain actions or
record which will be referred                    the admissibility      of certain
to, it would probably be the                     evidence and the objection is
best practice to attach them to                  done in the presence of the
the pleading     if you w1h the                  jury, make sure that the jurors
judge to read them.                              can understand what the objec
                                                 tion is all about.       In other
          PROPOSED ORDER                         words,    object    in    language
                                                 jurors can understand.
While undoubtedly       some local
rules require the tendering of                   For example, usually when the
proposed orders in support of                    Commonwealth attempts   to have
the pleadings that you file, it                  one of its witnesses     testify
is not a universal requirement.                  about    a   statement made    by
It is suggested, however, that                   someone else outside the pres
you always attach a proposed                     ence of the defendant,      your
order    detailing     the   relief              immediate reaction is to object
requested. If neither the judge                  because it is "hearsayY’ How
nor the Commonwealth’s Attorney                  ever,   if you object    in the
have   to    draft    orders    when             following manner in the pre
motions are granted, then per                    sénce of the jury not only will
haps   more     motions    will   be             your record be preserved      for
granted.                                         appellate review but the jurors
                                                 will better understand why the
The    foregoing     is    a   broad             objection has been made and why
outline of the basic components                  such evidence should not carry
of motion practice.       The rules              much weight:
governing     motion practice      in
criminal    cases   are primarily                    Judge, the’ person who made
found in RCr 8.14 through RCr                        that statement isn’t here. I
8.24.    Familiarizing      yourself                 can’t ask him if he even made
with    these   particular     rules                 such a statement. And how can
will   undoubtedly     aid you in                    I possibly show the jury what
properly and completely repre                        possible motive he would have
senting your client.                                 for making such a statement
                                                     or whether     or not he has
Motion    practice,      like    all                 anything against the man I am
communication,      is    a   highly                 representing. ‘ I object.  It
personal art.    While it may be                     would be unconstitutional for
advantageous to peruse motions                       you to let this statement in
filed by local counsel on sim                        without   giving  me and the
ilar issues in order to deter
mine the proper       format, it is                          Continued,       P. 29

                                        -   28   -
 jurors an opportunity to find                               KENTUCKY’S   NEW   DUILAW
 out who this man was and what
 he really   said, and why he                On July 13, 1984, Kentucky’s
 said it.                                    tough new Drunk Driving         law
                                             went in effect.    Follow with me

As can be seen from the above,
an objection was made; a con
stitutional         was given;
                                             the hypothetical
                                                                 plight of Ron
                                                       one of the first indi
                                             viduals to be prosecuted under
and the record has been pre                  the pew law, and together we
served.   But at the same time               can ee first hand some of the
you have communicated clearly                many    changes  and    challenges
to the jury why this particular              facing the bench and    bar.
evidence is so suspect.
                                             All citations, unless otherwise
As a recent member of a jury                 noted,   are to 1984 SB 20 as
pool, it became evident to me                enacted, the new DUI law.
that jurors    on the whole are
woefully uninformed about the                Ron Bailey, a previous resident
criminal   justice    system.   By           of     Kentucky,      recently     of
using legalese when objecting,               Huntsville,     Tennessee,    is 32,
as we    admittedly    have   been           divorced     and   unemployed.     In
taught to do, we unnecessarily               January 1981 Ron plead guilty,
leave jurors in the dark.       By           without benefit of counsel, to
making   your     objections    in           his first DUI conviction.         His
laymen’s terms, you can make                 second conviction       occurred in
your record and at the same                  April 1983 after trial by jury.
time enlighten the jurors that               On    Friday,    July    13,    while
there really are valid, logical              visiting    some friends in Ken
reasons why you are objecting.               tucky,    Ron’s vehicle was in
                                             volved in a two car accident at
TIM RIDDELL                                  a four way stop type inter
                                             section    at about 11:00 p.m.
     *   *    *    *   *        *            Sally Cummins, the driver          of
                                             the other vehicle,       suffered   a
If we take hahitual drunkards is             blow    to   the   head    from her
a class,    their heads and their            steering wheel, was unconscious
hearts will bear an advantageous             when officers arrived, and was
comparison with thpse of any other           removed by the Rescue Squad to
class. There seems ever to have              a local hospital.
been a proneness in the brilliant
and warm-hearted to fall intQ this           Gidge Martin saw the accident;
vice, The demon of intemperance              called   the law, and informed
ever seems to have deUghted in               the officers    that Ron Bailey
sucking the blood of genius and              ran the stop sign, and appeared
generosity.                                  to have been drinking. Officers
                                             Smith and Ledford     approached
                  ABRAHAM LINCOLN            Bailey’s vehicle, and asked for
                                             his license    and registration.
     *   *    *   *    **                    Bailey furnished him a Kentucky
                                             license. Officer Smith, who was
                                             closest   to him, detected     the
                                             odor of     alcohol  and     asked

                                                     Continued,           P. 30

                                    -   29   -
Bailey if he had been drinking.
He replied "Yes      a little,    but
I’m not drunk.!? Officer Smith
asked him to step out of the
car and Officer        Ledford    re
trieved    a video      camera    and
light   bar from his        crusier.
While Officer Smith had Bailey
perform several field sobriety
tEsts,   including      "finger    to
nose",   "walk     the   line"    and
"foot on bumper," Officer Led-
ford recorded the event on film
over Bailey’s      objection,     who
said the lights hurt his eyes.
Officer Smith asked Bailey to
submit to an Alcotest,       a field
or screening     type Preliminary                         GEORGE SORNBERGER
Breath Test,      but Bailey      re
fused.    He was placed         under            serious injury was alleged, and
arrest for DUI and transported                   were allowed to detain him a
to headquarters.                                 minimum of four hours because
                                                 his BA was over .15 ‘See Sec
Once there,   he did submit to                   tion 11.
testing and blew .16 on a Smith
and Wesson 2000 BA unit.   When                  Ron’s sister     arranged bail on
searched before being lodged in                  Monday. A warrant had been ob
the jail,   several Contac cap                   tained   for the operating           on
sules and a Physician’s Sample                   revoked license charge.         At his
packet of Advil, with one tab                    arraignment,     Ron    Bailey     was
let missing, was taken from his                  charged with DUI 3rd offense,
shirt pocket.                                    Section    1    Operating      on Re
                                                 voked License      and Running a
Ron demanded that he be told                     Stop Sign. Upon motion of the
the amount      of his bail     and              County Attorney under Section
given a phone to use. After                      61a      and b,       a hearing was
conferring with his supervisor,                  held to determine if Bailey’s
Officer Ledford informed Bailey                  license    would     be     suspended
that he had checked with the                     immediately    pending final dis
hospital and the Cummins woman                   position of the case. The Court
had not regained consciousness.                  heard evidence as to Bailey’s
His bail was to be $5,000 cash,                  previous   DUI convictions,        his
Ledford    said,   and,    even  if              alleged   suspension      status    in
Bailey could arrange for bail,                   Kentucky    from    the    last    DUI
he would not be released        for              conviction and evidence of the
four hours. Bailey reached by                    medical    condition       of    Sally
phone the attorney at home who                   Cummins, who remained           uncon
had   represented    him on     the              scious.   The Court heard the
second    DUI    conviction.    The              account of the arresting offi
attorney   informed Bailey that                  cers. concerning       the    present
the officers had followed Sec                    arrest.   After the hearing, the
tion 141      of the new DUI law                 Court had Bailey surrender his
in setting bail because he was
an out of state       resident and                       Continued,     P. 31

                                        -   30    -
driver’s  license to the Court,                       onset of the examination            and
advised him of his right, after                       cited            People v. Carlson, 677
14 days, to request a review of                       P.2d    31.0    Cob.        1984.   The
the status of this suspension,                        Court deferred          ruling pending
and set the case for trial   in                       hearing      testimony        from  the
30 days.                                              arresting officers.

Several pre-trial       motions were                  The Court sustained           Bailey’s
filed by Bailey’s attorney.          A                Motign     in    Limine      that    no
hearing date was obtained,         and                mentron 1 made by any prose
prior to the hearing, Bailey’s                        cution witness of his refusal
attorney     visited     the   County                 to    submit    to    a preliminary
Attorney to see if a suitable                         breath     test,      finding      that
disposition     could be achieved                     Section 101        provided that "A
without trial.     Bailey’s counsel                   person’s     refusal     to    take    a
was    informed    by    the County                   preliminary     breath test shall
Attorney that he could not plea                       not be used against him in a
bargain on this case because of                       court    of law...."       The Court
Section 122       of the new law,                     also ruled      that Bailey’s       re
which requires       the prosecutor                   quest that there be no mention
to    oppose   amendment of        the                of the Court’s pre-trial           sus
charge unless all prosecution                         pension     of    his    license     be
witnesses    are unavailable       for                granted.
trial.     Hearings were held on
the various       motions,    and    a                Several motions were heard in
summary of their         disposition                  connection with the allegations
follows:                                              of previous convictions.                 Bailey
                                                      first   made a Motion to Strike
 The court overruled a Motion to                      the previous convictions,                  cit
Dismiss     that     argued      iIlegT               ing              Baldasar v..Illinois,      446
 arrest because the officers had                      U.S. 222 1980,                  arguing that
 not seen Bailey driving and had                      the Commonwealth was prohibited
not    witnessed       the    accident.               from using uncounseled misde
The Court, citing Section 23e                         meanor      convictions              for    en
of the      new    law,      found     the            hancement. The Court struck the
arrest to he permissible with                         1981 conviction               from the com
out a warrant even though not                         plaint,    finding that there was
committed      in     the     officers’               no evidence              that    Bailey     was
presence     if the officers had                      properly     advised of his right
probable      cause       to    believe               to counsel nor that he made a
Bailey had violated Section 1.                        knowing waiver of that right,
The Court took under advisement                       and ordered that the case go do
whether    there     was sufficient                   trial as a second offense.                  The
probable cause to arrest              but             Court        overruled                Bailey’s
eventually      ruled       there     was             Request For a Bifurcated Trial
probable cause just prior               to            but susEThed
                                                           ‘                      his    Motion in
trial.    The Court         also     took             Limine that there be no refer
under      advisement          Bailey’s               ence to the previous                   convic
Motion to Supress           Reults      of            tion.    The Court ruled that the
Roadside Testip.         Bailey argu                  instructions        would reflect           the
that rcdside       sobriety testing                   penalty      for           second      offense
constitutes      a    full     "search"               only,    finding            that    the pros
that    must    be      supported       by
probable cause to arrest at the                                 Continued,       P. 33

                                             -   31    -
   ecutor   had  made    sufficient               later held to determine if the
   showing as to the regularity of                testing  was recorded    in its
   that previous conviction.                      entirety Section 102a       and
                                                  whether  other  necessary foun
   The Court also ruled that the
   charge of Operating on Revoked                          Continued,   P.   34
   License      would    be     prosecuted
   under      KRS186.620, $12 to $500
   and/or 6 months          finding that
   Section 9 of the new law, with
increased          penalties     1:1st of
   fense, Class B Misdemeanor; 2nd
   offense,     Class A Misdemeanor;
   3rd offense,       Class D Felony.
   See Section 92abc.                    In
   addition      to the above penal
   ties,    revocation       for 2X the
   original     period.       See Section
   93]     upon conviction,        applied
   to convictions for operating a
   motor     vehicle       while      under
   suspension or revocation for a
   violation of the new law again
   The Court ‘took under advisement
   an additional   Motion to Strike
   based on the claim that the one
   previous   conviction  the Court
   was allowing to be used was a
   conviction   under the old DUI
   law and that only convictions
   under the new law could be used
   for enhancement purposes.

   The Court overruled the Motion
   to Suppress the seizure of the
   ntac      and Advil,   and ruled
   that   upon a sufficient  founda
   tion being laid as to whether
   either   was a substance which
        impair one’s driving abil
   ity, that the prosecution could
   introduce    them into evidence.
   See Section 1.
   The Court, also ruled on var
   ious motions in connection with
   the videotape.      See Section 10
   2.     The defense moved under
   Section     10d     for an oppor
   tunity     to   view,  the   entire
   recording before trial,       which                 Reprinted with permission   of
   was    granted.    A hearing    was                        Cincinnati Post

                                              -   33   -

    datiori could be laid by the                                      a Motion for Probation.       The
    prosecution, including 1 clear                                    Court denithe         motion, but
    and convincing evidence of the                                    ruled that upon proper appli
    accuracy,              authenticity                    and        cation   and showing,     60 days
    truthfulness              of the records,                         community labor could be sub
    see             United             States v. Blakey,              stituted   for 60 days of the 90
    607        F.2d        779        7th       Cir.1979              day jail    sentence.   The fin1
    2    whether the audio portion                                    judgment of the Court sentenced
    was audible, see                             UnitedStates         Bailey on the DUI charge as
         Llinas,         603 F.2d 506 5th        v.                   fo11ows:
    Cir. 1979;              3 chain of cus
    tody,    see                       Carrier v. Common              Fine-$500    See Section      12b
    wealth, Ky.App., 607 S.W.2d 115
    1980;       4         other foundational                          Jail-90  days   60    days  of
    requirements including identity                                   community labor  may be sub
    of the accused, competency of                                     stituted for 60 days of jail
    the    operator,              equipment                and        upon proper application    See
    film    used,              playback                spee.d,        Section 21-8
    etc.,   see                   People v. Strozier,
    116 Misc.2d               103         NY Justice                  Service     Fee-$150   See     Section
    Court Monroe County, 1982.                                        51

    The Court ruled that the entire                                   Court Costs-$67.50
    videotape   of Bailey’s   field
    sobriety tests could come into                                    Treatment-Alcohol abuse treat
    evidence.                                                         ment program for one year at
                                                                      defendant’s cost. See Section
    Finally,   the Court    ruled  on                                 42 a b
    Bailey’s Motion to Dismiss the
    stop sign violatfi.    ‘The Court                                 Suspension-12     months     See   Sec
    sustained the motion and dis                                      tion 71b
    missed the charge, having found
    that this arrest was without a                                    If the Court had not previously
    warrant, this alleged violation                                   taken up the license of Bailey,
    was    not   committed   in   the                                 he would have had to surrender
    officer’s   presence,   and that                                  it to the Court at his sent
    Section 23e      of the new law                                   encing See Section 73.
    did not apply to a violation of
    KRS 189.3304.                                                     The procedure for applying to
                                                                      the Circuit   Clerk  for rein
    Trial was had and the jury was                                    statement was explained to him
    instructed   as to the penalty                                    See Section 83.
    for second offense. See Section
    12b.       A verdict of guilty                                    The Court advised Bailey pur
    was returned on the DUI and a                                     suant    to    Section   28      that
    sentence of a $500 fine and 90                                    failure     to complete the com
    days in jail was recommended.                                     munity     labor    or  to   perform
    A verdict    of guilty  n    the                                  diligently     at that labor shall
    Operating   on Rev.ked License                                    be   grounds     for   contempt    of
    was returned, with a $100 fine                                    court, and ‘that the Court, in
    recommended.                                                      addition     to any other remedy
                                                                      for coi-itempt, would reinstitute
    At    a  subsequent  sentencing
    hearing, Bailey’s counsel made                                              Continued,   P. 35

                                                             -   34   -
the    60     days
                 that  were being                          ADMISSIBILITY OF DEATH
suspended.     The Court further                              CERTIFICATES IN
advised    Bailey,    pursuant   to                          HOMICIDE CASES
Section 31      that because this
was not a 3rd offense,       defen                     The coroner of each county is
dant       could   apply       for   work   or         required   to   investigate   the
school    release,     but,      if                    cause and manner   of all deaths
granted,  no individual     period                     t.hat are defined by statute as
of incarceration   could be less                       a "coroner’s case.tT KRS 72.410.
than 24 hours.      Also, Bailey                       Accotdin     to  KRS   72.4052,
was-advised        pursuant      to Section            "Coroner          s   case"    means   a     case
42d       that  failure to com                         in   which   the  coroner   has
plete’ the mandatory treatment                         reasonable cause for believing
program or to pay the amount                           that the death of a human being
specified    by  the Court  for                        within his            county was caused by
treatment shall be grounds for                         any of the            seventeen conditions
contempt of Court.                                     set forth in KRS 72.025.                   Those
                                                       conditions are:
Bailey could not pay the entire
fine and Court costs and fees,                            I    When the death     of a
as ordered,    so,   pursuant to                       human  being
                                                                ‘     appears   to   be
Section 24, he made application                        caused by homicide or violence;
for installment    payments See
KRS 534.020.                                               2   When the death of a
                                                       human being appears to be the
The    final      motion      Bailey’s                 result of suicide;
counsel made was for the man
datory 12 month revocation See                             3   When the death of a
Section    71b          to run con                     human being app,ears to be the
currently     with the suspension                      result of the presence of drugs
order     Bailey     was     presently                 or poisons in the body;
under.     Proof     at    trial    had
shown    that    DOT had       revoked                     4    When the death of a
Bailey’s     license     for one year                  human being     appears to be the
on September 1, 1983, when his                         result    of a motor vehicular
second    Dlii conviction        became                accident    and the operator   of
final after appeal.                                    the    motor   vehicle  left  the
                                                       scene of the accident      or the
The Court    ruled    that   under                     body was found in or near a
Section 65     Bailey was entit                        roadway or railroad;
led to credit against his new
12 month suspension       for the                           5    When the death     of a
period of time that his license                        human being occurs while the
had    been   suspended     before                     person    is in a state mental
trial,   but ruled    that   under                     institution    or mental hospital
Section 156,      the suspension                       when there is no previous med
must run consecutive.                                  ical   history    to explain   the
                                                       death,       or       while   the   person     is
GEORGE SORNBERGER                                      in police   custody,  a jail  or
                                                       penal institution,   except pur
       *      *      *     *     *    *                suant  to a sentence of death;

                                                                    Continued,        P. 36

                                              -   35   -
        6    When the death of a
    human being occurs in a motor
    vehicle   accident   and when an
    external    examination  of   the
    body does not reveal a lethal
    traumatic       injury;

       7    When the death of a
    human being appears to be the
    result of a fire or explosion;

        8   When        the death       of a
    child appears       to indicate     child
    abuse   prior     to the   death;

       9 When the manner of death
    appears  to  be  other   than
                                                                   RODNEY MCDANIEL
       10 When human skeletonized
    remains are found;                                       16   When the death of a
                                                         human being occurs at the work
        11    When postmortem decom                      site and there is no apparent
    position     of a human        corpse                cause  of death   such  as an
    exists    to    the    extent    that                injury or when the industrial
    external     examination      of  the                toxics   may have     contributed   to
    corpse cannot rule out injury                        the cause of death;      and
    or where the circumstances         of
    death    cannot     rule   out    the                    17 When the body is ‘to be
    commission of a crime;                               cremated and there is no past
                                                         medical history to explain the
        12   When the death of a                         death.
    human being appears to be the
    result of drowning;                                  KRS    213.0902       requires   the
                                                         coroner     to    "state    in  his
        13   When the death of an                        certificate    of death the nature
    infant appears to be caused by                       of the disease or other cause
    sudden infant death syndrome in                      of death."     This statute    also
    that the infant has no previous                      provides that "If the death was
    medical history to explain the                       from external      causes of vio
    death;                                               lence, he shall state whether
                                                         in his opinion the death was
        14    When the death of a                        accidental,     suicidal   or homi
    human being occurs as a result                       cidal."    To .what extent is such
    of an accident    involving  an                      a death certificate      admissible
    airplane;                                            in a homicide case in the ab
                                                         sence of the person who pre
       15     When the death of a                        pared it?
    human being occurs under the
    age of forty 40    and there is                      In homicide      cases,   the most
    no   past  medical  history  to                      litigated    issue is whether the
    explain the death;                                   death    certificate    can be used

                                                                  Continued,     P. 37

                                                -   36   -
to    establish  the    cause    of              In Commonwealth      v.   McCloud,
death.    Most courts which have                 Pa., 322 A.2d 653,56       1974,
considered the issue have held                   the court held that the use of
that death certificates     are not              an autopsy    report    as direct
competent     to  establish     the              evidence   in establishing     the
cause of death in a homicide                     cause of death an element of
case.                                            the crime denied the defendant
                                                 the fundamental constitutional
In Vanderheiden v. State, Neb.,                  right ‘of confrontation.
57 N.W.2d 761, Th7 1953,         the
Court held that a death certi                    Although it does not involve
ficate ‘‘‘is not competent evi                   death certificates,         the opinion
dence of the cause of death in                   of the Sixth Circuit in Stewart
a controversy where the cause                    v. Cowan, 528 F.2d 79 6th Cir.
of death is a material issue.                    T976     supports      the view that
"To apply a different rule in a                  death      certificates        are   not
criminal case could be gravely                   admissible      in the absence of
unjust     to’ a     defendant   and             the persons who prepared them.
deprive him of his constitu                      In the cited case, the court
tional     right. . .to   meet   the             considered the propriety of the
witnesses against him face to                    introduction        of a ballistics
face...since    death certificates               report in the absence of the
are made ex parte without          a             F.B.I.    technician who prepared
hearing and without the right                    it.     The Court held that the
of cross-examination."                           Constitution       imposed upon the
                                                 prosecution         the     burden     of
In    State     v.    Watson,     N.C.,          showing the unavailability            of
188 S.E.2"d 2,        295-296 1972,              the F.B.I. technician before it
the court found that consti                      could    seek to introduce           the
 tutional    error had been com                  ballistics       report       under    an
mitted in the use of a death                     exception to the, hearsay rule.
certificate       to establish       the         Id.,    at    84-85.      Because    the
cause of death           in a murder             Eliistics      testimony constitu
prosecution." The clear mandate                  ted a significant          link in the
of Article I, §11 now Article                    chain    of circumstantial          evi
I, §23 of the North Carolina                     dence against the defendant and
Constitution        and    the    Sixth          because the prosecution failed
Amendment to the United States                   to justify       the unavailability
Constitution       guaranteeing     the          of the person who prepared the
right     of    confrontation       and          ballistics      report,      the Sixth
cross-examination,           and    the          Amendment was held to have been
fundamental fairness guaranteed                  violated     when testimony about
by due process of law require                    the results      of the report was
that we hold that           the trial            introduced.       Id., at 80.
judge erroneously admitted the
hearsay and conclusory           state           Other courts have found it to
ment contained         in the death              be error to admit death certi
certificate     "that the immediate              ficates to establish  the cause
cause   of   death   was   heworrhage            of death on the ground that the
and asphyxia due to or as a                      statement of the cause of death
consequence of stab wound of
the left neck."                                          Continued,      P. 38

                                        -   37   -
is not a "fact" admissible as                    The Supreme Court of Kentucky
prima facie evidence within the                  has    not      been     reluctant        to
meaning   of the statute.       See              overrule      prior    cases that         it
People v. Fiddler,      Ohio, 238                considered to be unsound. It is
FLE.2d 339      1970;    State   v.              arguable that Bralle should be
Martin,   Minn., 197 N.W.2d 21                   overruled         on      this       basis.
2’22  1972;      Ward v.   Common                Bralley      is     unsound       for   two
wealth,   Va. , 217 S.2d       810,              reasons.      First,       it    treats     a
811 1975.      These cases recog                 staement as to cause of death
nize   that    a statement    in a               as a fact that           is admissible
death   ‘certificate   concerning
the cause of death is the ex
                                                            the       meaning       of KRS
                                                                   Plainly, however, a
pression of an opinion, not the                  statement as to cause of death
statement of a fact.                             is an opinion, not a fact.              See
                                                 People     v.      Fiddler;       Ward v.
The Supreme Court of Kentucky                    CbmmonweTthand                  State     v.
has considered         this   issue    in        Martin supra.          A statement as
only one published opinion n a                   tO cause of death is often the
criminal case. See Bralley v.                    result    of complex value judg
Commonwealth, Ky., 525 S.W.T                     ments.      Fiddler,,          supra.     An
123,     125     1975.      Relying    on        "opinion      as to the cause of
civil cases, the Court rejected                  death is not converted into a
the defendant’s         argument that             fact by the process of includ
the    introduction       of a death              ing it in a certified              copy of
certificate       violated    his con            the    coroner’s       death certifi
stitutional       right    to confron            cate."     Secondly,          Bralley     is
tation.        The Court held that               unsound because it            relied only
"death certificates         may be used          on civil authority in rejecting
as prima facie evidence of the                   the defendant’s          argument that
facts therein stated."           See KRS         introduction        of  the death cer
213.1901.          The     Court     then         tificate     violated       his consti
treated      the coroner’s       opinion          tutional       right       to     confron
as to the cause of death as a                     tation.      The Court in Bralle
fact, holding that the certi                      failed to recognize that civi
ficate     "was offered        only to           rules of evidence do not govern
establish       the cause of death                in criminal cases if they in
from a factual         standpoint     and         fringe        the       constitutional
therefore      was properly admit                rights of an accused.             State v.
ted." Id.       The Court added that             Tims, Oh., 224 N.E.2d 348, 33
"It is only to the extent that                    1967.      "In the context            of a
a certificate       states an opinion             criminal       case...the         applica
as to legal responsibility            for        bility     of the constitutional
the death that the certificate                   right     to      confront       witnesses
is      not       admissible."        Id.        must be carefully            considered."
Finally,       the    Court    rejected          People v. Fiddler               supra, p.
Bralley’s      contention     that the            361.
corpus delicti        was not estab
lished,      holding     tha;    certain         If the prosecution    seeks   to
facts "coupled with the certi                    introduce  a death certificate
ficate which stated the cause                    to prove the cause of death in
of death as ‘multiple injuries’                  a criminal   case, it   is re
as a result        of an auto acci               commended that an objection be
dent, were amply sufficient."
Id.                                                        Continued,       P., 39

                                            -   38   -
made on the grounds     that   a                      duct be in a public place
statement as to cause of death                        remove it    from constitu
is not a fact within the mean                         tional infirmity. The state
ing of KRS 213.1901      and on                       licenses  and approves the
the basis that introduction  of                       sale and consumption of al
the death certificate    in the                       coholic beverages in public
absence of the person who pre                         places.  For the state    to
pared it violates    the defen                        then criminalize that which
dant’s state and federal con                          they have already legalized
stitutional  right  to confront                       without any definition    of
the witnesses against him.                            the harm sought to be rem
                                                      edied would be a violation
RODNEY    McDANIEL                                    of due process.

     *      *   *    *      *       *                 The practical        application
                                                      of    this   proposition      was
Cases of Note...                                      demonstrated    in the case at
                                                      bar when the jury
                                                      having retired
                                                                          to consider Brief                                           their     verdict     asked
                                                      Court to define "under the

         PUBLIC INTOXICATION                          influence."     There being no
         STATUTE OVERTURNED                           recognized        judicial      or
                                                      legislative    definition,    the
In Commonwealth      v.   Sheldon,                    Trial    Court     declined     to
83-979C,    the Fayette     Circuit                   give a definition.
Court    overturned    a  District
Court conviction     and fine of                      FUNDING FOR EXPERT WITNESSES
$100    for public    intoxication
under KRS 244.020.     The Circuit               In United States.v.      Patterson,
Court held the statute        uncon              724F’.2d 1128 5tr             Cir.1984
stitutional     because    it    was             the Court held that          the de
vague and provided no reason                     fendant   was entitled        to ap
able standard     to measure the                 pointment    and    funding      of a
conduct of the accused.                          fingerprint    analyst under the
                                                 federal indigent expert witness
The opinion reads        in part:                statute, 18 U.S.C. Section 3006
                                                 Ae.     That statute,     like Ken
  The Statute     requires    only               tucky’s   KRS    31.200,    requires
  that a person be "under the                    appointment when the expert is
  influence"     of     alcoholic                "necessary" for the defense.
  beverages     in    a    public
  place.   This Statute       does               In Patterson,     the prosecution
  not require any particular                     had introduced fingerprint       ev
  degree of intoxication        and              idence   against    the defendant
  under the Statute a person                     along with eyewitness        identi
  could be found guilty         for              fications.    The defense expert
  any offense      ranging    from               was required not only because a
  eating too many piecs          of              defense    expert     "might    have
  grandma’s     bourbon     laced                reached a different result" hut
  fruitcake   to being blind,                    also because "the assistance of
  falling    down,    staggering                 an    expert  undoubtedly      would
  drunk.    Neither    does     the
  requirement    that    the con-                          Continued,     P. 40

                                        -   39    -

have facilitated     [the   defen             was taken from him at the time
dant’s]   cross-examination     of            of his arrest and sent to the
the government’s   expert."                   crime laboratory.   His clothing
                                              had not been returned to him at
     INVOLUNTARY MEDICATION                   the time of trial."
                                              The Court held that forcing a
In Commonwealth v. Louraine,,                 defendant to wear prison garb
453 N.E.2d 437 Mass. 1983 the                 when his only civilian   clothes
defendant   had    a  substantial             weite taken from him and not
background of mental illness.                 returned violated his presump
From the time he was arrested                 tion of innocence.     See also
throughout   the trial    he was              Scrivener v. CommonweatElT, Ky.,
given antipsychotic medications               539 S.W.2d91     1976;   Estelle
including prolixin,    thorazine,             v. Williams, 425 U.S. 501, 96
mellaril,  and trilafon.                      Ct.     1691,  48  L.Ed.2d    126
His defense at trial was that
he did not have the mental                    ED MONAHAN
capacity to commit the murder
he was charged with.                                  RIGHTS CARDS AVAILABLE

Prior to trial    the defendant
asked to he permitted to attend
the trial unmedicated if he was
found competent to stand trial.
He was found competent but only
if he continued on the medi
cation. He was tried medicated.

The Court   recognized      that  a
defendant  is    constitutionally
entitled to present his version
of the facts,      and to place
before the jury any evidence
probative     of    his      mental
The Court held that,     when a               $5.50 covers postage and    handling
defendant’s mental capacity is                per 100 cards.
at issue, he cannot be invol
untarily   medicated  at   trial              NAME:
since to do so would visibly
affect his demeanor and mental                ADDRESS:
processes at trial and deny the
jurors from accurately viewing                QUANTITY:
evidence   probative   of     his
mental condition.                             Send check or money order payable
                                              to Kentucky State Treasurer to:
           PRISON GARB
                                                           Rights Cards
In Pike v. State,    312 S.E.2d                   Department of Public Advocacy
808 Ga. TKp. l93     the defen                     State Office Building Annex
dant’s "only civilian clothing                     Frankfort, Kentucky 40601

                                     -   40   -
Juvenil                              -
                                                   ijde     could consider
                                                   from juvenile
                                                                    authorities    on
Law.                                               the child’s home life,      school
                                                   record, and any other factors.
                                                               to  consider     these
                                                   factors    was not grounds     for

                                                   The hallenge    to the statute
                    DETENTION                      was filed by three youths VE all
                                                   of whom were 14 at the time
The    United       States     Supreme             they were detained.     In addi
Court’s ruling June 4, 1984 in                     tion, 34 other juveniles joined
             v. Martin upheld New                  the action to form a class.
Yorkts     law  ‘ allowing     accused
juvenile      delinquents       to   he            One of the youths was charged
detained      prior    to   trial    if            with hitting    another youth on
there    is    a risk      they    will            the head with a loaded gun and
commit a crime if released.                        stealing clothing from him. The
                                                   youth was jailed     for 15 days
The 6-3 ruling was a signifi                       before   being    adjudicated  a
cant   victory  for   the   state                  delinquent   and placed on pro
which had previously     lost   at                 bation.
both the District Court and in
the Second Circuit      Court of                   Another youth was charged with
Appeals. The lower courts had                      attempted robbery.   He was not
reasoned that juvenile pretrial                    prosecuted after his detention
detention was unconstitutional,                    because the witnesses failed to
as it imposed punishment prior                     show.
to a youth being found guilty.
                                                   The third youth was held for
The District  of Columbia and a                    eight days for attempted rob
few states   have also adopted                     bery from other youths.    He was
preventive detention guidelines                    found   guilty of harassment and
for adults   but the June 4th                      petit larceny to go along with
ruling   by the Supreme Court                      his four previous arrests.     He
deals solely with juveniles.                       was  placed in the custody of a
                                                   social services agency.
Kentucky, pursuant to Chapter
208,    allows    juveniles     to be              Associate Justice Rehnquist in
preventively detained as do all                    delivering    the opinion of the
states.     New York’s statute was                 Court stated "The Constitution
much broader than Kentucky’s,                      does not mandate elimination of
however, allowing juveniles to                     all differences    in the treat
be   detained      for   up    to   17             ment of juveniles" from adults.
seventeen         days   after     the             It is very interesting     to note
initial     appearance before the                  that throughout the opinion the
Court. The judge needed to be                      term "treatment" and "promoting
convinced only that ther.e is a                    the welfare" of the child are
"serious risk" that the youth                      used. In fact the Court makes a
will commit a crime. The law                       concerted   effort    to convince
made no distinctions         between               the    reader    that   preventive
previous      arrests   or   violent
versus non-violent crimes.         The                    Continued,   P. 42

                                          -   41
detention    is designed to pro                    r4teria        gives   rise  to         in
tect   the    child  as well  as                   equality      across the board.
                                                   Kentucky’s detention statute is
The Court is able to balance                       mild    in    comparison   to  New
the child’s interest to freedom                    York’s    when examined on its
in the following context:      "The                face. Probable      cause for the
juvenile’s    countervailing      in               offense must be established     as
terest   in freedom from insti                     well as probable cause that the
tutional   restraints,     even for                nterests     of the child’s   pro
the brief time involved here,                      tection    are    served   by  his
‘is undoubtedly    substantial     as              further detention.     These deci
well. But that interest must be                    sions must be made within sev
qualified   by the recognition                     enty-two    hours of detention,
that juveniles,    unlike adults,                  exclusive of Sundays and holi
are always     in       some   formof              days.
custody".    emphasis added.
                                                   Nevertheless,    there is no outer
The dissent written by Justice                     limit    to Kentucky’s    detention
Marshall    underscores     the im                 statute.   Once the Court deter
ortance      of    protecting     the              mines a child is to be detained
 ‘liberty"     interests     of   all              it    is    incumbent    upon    the
persons. The absence of proce                      attorney to keep the detention
dural safeguards in the deci                       at a minimum absent compelling
sion making process        allows    a             reasons to do otherwise.
juvenile    accused     of a petty
crime    to   be held     upon    the              One final comment is necessary.
"caprice" of a ju’dge. The var                     The Supreme Court was careful
iation    in pretrial      detention               to avoid the issue           of adult
                                                   preventive detention.        The dec
                                                   ision should not be read as a
                                                   preview     on’ this      issue     but
                                                   should    be    analyzed      for   its
                                                   impact on children.        Indeed, by
                                                   relying      upon     the      state’s
                                                   legitimate interests       in "treat
                                                   ment" of children as a basis
                                                   for upholding the statute,           it
                                                   would be difficult        to utilize
                                 Schall                       v. Martin as a founda
                                                   tion for altering       the law of
                                                   adult preventive detention.

                                                   TOM HECTUS

                                                   Torn is a former appellate attorney
                                                   with the DPA and a former trial
                                                   attorney     with the Jefferson County
                                                   Public     Defender’s   Office.   He   cur
                                                   rently is engaged in the practice
                                                   of law with the Louisville firm of
                                                   Gittleman and Barber, and serves
                                                   as    the Shelby  County     public

                                          -   42   -
                THUS, THEOUTCOME                                    AND,

The Courier-Journal         editorial
criticizing      Judge    Edmund    P.
Karem’s banning of cameras from
a trial     last    week was pre
dictable,       and      predictably
short-sighted        for      several

Initially,      if   the   editorial
writers     or their    lawyers had
read the Criminal Rules gov
erning trials,     they would have
learned      that   a    judge    may
exclude all infants under the
age of 16 years from a court
room involving      any trial     for
rape or similar offenses.        That                            JOE GLASS
rule came about for the logical
reason     of protecting     infants                erage    of   an    inconsequential
from     hearing      the    sensual                burglary    or theft      case,   al
aspects of a such a trial,        and               though    the    public    could be
thus protecting them because of                     educated about trials and trial
their tender years.                                 practice    through the coverage
                                                    of    these     types    of    cases.
A   televised   trial  involving                    Obviously, commercialism is the
rape and similar offenses makes                     name of their game, whether it
the home television   an exten                      be increasing      Nielsen ratings
sion of the courtroom if such a                     or selling newspapers.
trial   is televised.     Does a
rape    trial   have  any    less                   I   have    always     favored    the
prurient aspects than a Playboy                     public’s    First    Amendment con
channel or a Hustler channel?                       stitutional    rights to know, and
                                                    the press’ right to inform, but
Ironically,        the       editorial              have never believed that those
writers     wrote     in   platitudes               rights      included      television
concerning     the    "public’s      in             cameras   in the courtroom.      When
terest"     and     "educating       the            a reporter      is  present   in the
public" and yet the print media                     courtroom to cover a trial or a
hardly     covered       the     trial.             hearing,     by    the   taking     of
Similarly,   the three commercial                   notes,    those    First   Amendment
TV channels did little         report               rights   are satisfied      and pro
ing on the proceedings            after             tected.
their camera crews were refused
access to the courtroom                             Cameras in the courtroom can
                                                    affect all of the participants
Why is it that the media only                       in a trial  and their presence
want to educate the public in                       may make a substantial  differ
cases involving sexual offenses                     ence   in   the outcome of the
or murders? I have yet to see
the press hyped up over coy-                                Continued,     P. 44

                                           -   43   -
litigation.     Those two factors                Pepper.       ..   and Salt
alone are enough to justify the
exclusion of the device.         With                                        THE WALL STREET JOURNAL
a camera in the courtroom, all
of the participants         will   be
aware    of what      I    call   the
"looking-good"     syndrome which
can either     result     in "show-
boating"    or inhibitions,       and
with either factor,       the result
is something less than a fair
trial.   The fact that the pre
sence of television cameras may
make the active participants        -

judge, lawyers and witnesses        -

concerned with their par,ticular
method ,of oratory,      exemplifies
how the client’s       interest   may
suffer, whether ,that client is
the State or a defendant.

It   takes   very little   imagi
nation to realize that a pro                          "Your honor, before announcing the verdict we
secutor    and a defense lawyer                       would like to discuss media rights, royalties,
may each want to play their                                         residuals etc....."
roles to the hilt when, in the
parlance of the stock market,                        "From the Wall Street Journal
there are "futures"     at stake.                     Permission Cartoon Features
The cause of their client may                                  Syndicate"
become the secondary interest.
                                                 scrutiny,  from time to time.
On the other hand, what about                    At best, this situation   may be
the advocate who is made ner                     only discomforting    but it may
vous by the presence     of the                  reduce the individual    or col
camera to the point that he or                   lective attention   and indepen
she is more preoccupied      with                dence of the jurors.
that fact than with the pro
tection of the rights     of the                 The   television      camera   would
client? The consequence of that                  enhance the scope of the audi
preoccupation could reduce the                   ence that      will   evaluate   the
effectiveness  of that advocate.                 jurors’    decision,    and should
Should either situation    occur,                they,    individually    or collec
neither justice nor the client                   tively, be reticent about their
is served.                                       role    in a case,      the jury’s
                                                 decision could be affected by
Television    cameras can have a                 some misguided notion or belief
potential   affect on a jury, as                 about public opinion in parti
well as upon the active trial                    cular types of cases.
participants.     Instead of being
able to obtain the fact       of a               I suppose that there might be
case under conditions of rela                    some minuscule educational ad
tive ease, the jury in a tele                    vantages   to  the public   in
vised trial    will find himself
the    object   of    some  camera                          Continued,           P. 45

                                        -   44   -
viewing a televised    trial,    but            When the press is truly labor
these   advantages   will    surely             ing for First Amendment rights,
pale when contrasted      with the              they deserve all of the praise
potential   for disadvantages     to            and accolades that the public
the course of the litigation.                   can heap upon them, but when
More often than not, judicial                   they   argue    First  Amendment
decisions   are called     for and              rights   because   of commercial
made for the first time in the                  motives, they should reap equal
criminal case during the trial,                 amounts of criticism and gall.
because   the opportunity        for
discovery of evidence is very                   JOE GLASS
limited   and the evidence us
ually   unfolds   for the     first             Th Joseph Glass office is located
time in the trial arena.                        at 231 South Fifth Street in Louis
                                                ville. Joe has a J.D. from the
 In a televised trial,     the judge            University of Louisville and has
will probably want to control                   been on the graduate faculty there
 the actions    in the courtroom                part-time for the past year.
more than he might otherwise be
 inclined to do.       If so, that              Among his achievements, Joe served
 control may foment argument for                three years      on    the  Board   of
the camera’s sake or conversely                 Directors    of the Louisville    Bar
 it might quell       an otherwise              Association. He is past president of
fervent advocate who might fear                 the Kentucky Academy of Justice;
that     he  will    be   critiqued             Jefferson County Bar Association
poorly by the viewing public.                   and the Federal Bar Association.
Any element which is unneces                    In 1974, Joe successfully argued
sary to the trial Wingoprocess, but                       v.Weddin,g before the United
which could have a profound                     States Supreme Court.
effect upon that process must
be viewed as a disadvantage to
the litigation    as a whole.      In
ray    view,   televised      trials
represent such an element.                      "...vice   and crime constitute a
                                                 ‘normal’ response to a situation
The press, of late, has rallied                 where the cultural emphasis upon
behind    the    First     Amendment,           pecuniary success has been ab
using it as both a sword and a                  sorbed, but where there is little
shield.     In the last         several         access to conventional and legi
years,   the press has begun to                 timate means for becoming suc
tell us what presidents,           gov          cessful.... In this setting, a car
ernors and mayors are thinking                  dinal American virtue,     ‘ambition’
even before these people have                   produces a cardinal American vice,
spoken.     It is almost literally              deviant behavior."
true that the press has become
a fourth branch of government                                    ROBERT K. MERTON,
and to some extent has become                                          Sociologist
the    most    powerful     force     in
government      because      s6    many
leaders     of   the    other     three
branches want to know what the
press’   reaction will be to a
decision,     before    it    is   ever
finally made.

                                       -   45   -
                                               rl,e fourth      amendment to thE
                                               Constitution        of   the    Unitec
                                               States.    Born between 1776 an
                                               1791 from the fires of a revo.
                                               lution against tyranny. Create
                                               to protect      the Citizens      of
                                               new republic from the power o
                                               the state. The Fourth Amendmeni
                                               grew slowly in its youth, but
                                               matured     in    its   later     year
                                               through fierce fights for it
                                               life. Gained strength          througi
                                               its journeys in Ohio Mapp an
                                               Terry and California             Tjmer.
                                               her.    In its last year orTjf
                                               i!fered       a    severe    blow     i
                                               Illinois       Gates,      and     diec
                                               during surgery to remove th
                                               last of its vitality on July 5
                                               1984,    two hundred       and eight
                                               years from its conception.
    ‘occ    Wff414k44EArS*                                From Allegheny County,
                                                             Pennsylvania Public
                                                             Defender Newsletter
                                                    Lester G. Nauhaus, Director

THE ADVOCATE                                                               Bulk Rate
                                                                          U.S. Postage I
Department of Public Advocacy
State Office Building Annex                                                  PAID      I
                                                                         Frankfort, KY J
Frankfort, Kentucky 40601                                                   40601      I
                                           Permit                                   No. ij


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