Kentucky Law Review

COURTS: State prosecutors considering furloughs to meet budget constraints

Budget cuts taking toll in prosecutor's offices per CJ story; click on heading for entire story:

Prosecutors could face furloughs
3-week closings may stall system

By Joseph Gerth • jgerth@courier-journal.com • December 18, 2008

Commonwealth's attorney's offices around Kentucky, including Jefferson County's, would close for three weeks if Gov. Steve Beshear follows through with his call for a 4 percent budget cut.
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Beshear has proposed the cuts throughout much of state government to deal with a projected budget shortfall of $456 million.

The Kentucky Prosecutors' Advisory Council, in turn, gave the state's 57 commonwealth's attorneys until tomorrow to decide which of three options to use to cut their budgets -- furlough workers for three weeks, lay off workers or slash their payrolls by 13.35 percent.

DEATH ROW: "Judge: Death Row inmate probably is competent"

From Herald Leader:

Judge: Death Row inmate probably is competent
By Brett Barrouquere - Associated Press

FRANKFORT — A Kentucky Death Row inmate who is pushing to be swiftly executed most likely will be found competent to fire the public defenders who have been fighting his death sentence, a judge and attorneys said at a hearing Friday.

The finding could clear the way to executing 36-year-old Marco Allen Chapman, who is scheduled for lethal injection on Nov. 21.

Even though Chapman dismissed his lawyers in 2004 before pleading guilty to murder and asking for a death sentence, public defenders have continued to file motions on his behalf and have questioned his competency.

Special Judge Roger Crittenden has scheduled another hearing next week to hear testimony from a doctor who examined Chapman. The judge said he would probably declare Chapman competent.

Chapman admitted to killing two children and attacking their sister and sexually assaulting their mother in 2004 in the Northern Kentucky town of Warsaw.

Public defender Heather McGregor said that if an order declaring Chapman competent is issued, defense attorneys will hold up their end of a deal made with the inmate and withdraw two pending motions in the Kentucky Supreme Court trying to stop the execution.

"If he's found competent, we will voluntarily withdraw from the case," McGregor said.

Chapman told the court Friday that once those motions are withdrawn, he wants the execution to go forward.

CRIMINAL LAW NEWS: "Panel to propose changes in criminal law"

From PolWAtcher's Blog (and supplied to us by a reader!):

Panel to propose changes in criminal law

Meeting in small groups since March, the Kentucky Criminal Justice Council has been debating ways to reduce the state's swollen inmate population in prisons and local jails without endangering public safety.

Gov. Steve Beshear expects a report from the council next month so he can propose changes in the penal code to the 2009 General Assembly this winter.

The council -- which includes Justice Secretary J. Michael Brown and about 16 prosecutors, public defenders, legislators and state officials -- plans to meet Nov. 24 to adopt its report. So far, the council's subcommittees favorably have discussed ideas that include:

• Expand parole opportunities for elderly and ailing inmates who no longer pose an obvious threat, but who still have years left to serve;
• Expand substance-abuse programs so they're available at all prisons and every local jail that is contracted to hold state inmates (although panel members note that the state government doesn't seem to have money available for this right now);
• Reclassify possession of small amounts of illegal drugs for personal use as a misdemeanor, rather than a felony, with substance-abuse treatment required upon conviction;
• Rewrite the law on drug trafficking within 1,000 yards of a school so that it only applies to people providing drugs to minors, not drug dealers with adult customers who happen to be in the general vicinity of a school campus;
• Raise the level of felony theft from $300, where it has been for many years, to $500;
• And eliminate the enhanced penalties for second and subsequent convictions of possession of drug paraphernalia.

Some ideas, such as reducing possession of small amounts of marijuana to a criminal violation, punishable by a fine, were offered but discarded, although other states have adopted this. None of the ideas favorably discussed will necessarily be adopted in the final report.

While the council met this year, Kentucky already was releasing more inmates than ever, and more liberally.

Reacting to inmate overcrowding, the General Assembly last winter ordered faster parole reviews and earlier inmate releases based on various credits. Prosecutors are challenging the early releases in court. But in the meantime, many hundreds have been released under the new rules. For the fiscal year that ended June 30, the Corrections Department released more inmates than it admitted, the first time that has happened in at least a decade, dropping the inmate population under 22,000.

-- John Cheves

Meeting in small groups since March, the Kentucky Criminal Justice Council has been debating ways to reduce the state's swollen inmate population in prisons and local jails without endangering public safety.

Gov. Steve Beshear expects a report from the council next month so he can propose changes in the penal code to the 2009 General Assembly this winter.

The council -- which includes Justice Secretary J. Michael Brown and about 16 prosecutors, public defenders, legislators and state officials -- plans to meet Nov. 24 to adopt its report. So far, the council's subcommittees favorably have discussed ideas that include:

• Expand parole opportunities for elderly and ailing inmates who no longer pose an obvious threat, but who still have years left to serve;
• Expand substance-abuse programs so they're available at all prisons and every local jail that is contracted to hold state inmates (although panel members note that the state government doesn't seem to have money available for this right now);
• Reclassify possession of small amounts of illegal drugs for personal use as a misdemeanor, rather than a felony, with substance-abuse treatment required upon conviction;
• Rewrite the law on drug trafficking within 1,000 yards of a school so that it only applies to people providing drugs to minors, not drug dealers with adult customers who happen to be in the general vicinity of a school campus;
• Raise the level of felony theft from $300, where it has been for many years, to $500;
• And eliminate the enhanced penalties for second and subsequent convictions of possession of drug paraphernalia.

Some ideas, such as reducing possession of small amounts of marijuana to a criminal violation, punishable by a fine, were offered but discarded, although other states have adopted this. None of the ideas favorably discussed will necessarily be adopted in the final report.

While the council met this year, Kentucky already was releasing more inmates than ever, and more liberally.

Reacting to inmate overcrowding, the General Assembly last winter ordered faster parole reviews and earlier inmate releases based on various credits. Prosecutors are challenging the early releases in court. But in the meantime, many hundreds have been released under the new rules. For the fiscal year that ended June 30, the Corrections Department released more inmates than it admitted, the first time that has happened in at least a decade, dropping the inmate population under 22,000.

-- John Cheves

AG: Early-release program will continue, for now Franklin Circuit Court Judge Phillip Shepherd on Friday denied Attorney General Jack Conway's request to immediately bar the Department of Corrections from releasing prisoners under a new parole credit pro

Beth Musgrave at Herald Leader's Pol Watcher blog has posted (with a link to the order), as follows:  Click on heading for her entire post.

Early-release program will continue, for now

Franklin Circuit Court Judge Phillip Shepherd on Friday denied Attorney General Jack Conway's request to immediately bar the Department of Corrections from releasing prisoners under a new parole credit program.

Shepherd, in his order, said the Attorney General could not show that a temporary restraining order was necessary.  Tad Thomas, an assistant deputy attorney general, had argued during a Oct. 2 hearing that several people who have been released under the new program have already re-offended. But Shepherd, in his ruling, said that criminals often re-offend no matter when they are released from prison.

And John Cheeves has a post at the same blog earlier which goes well Beth's remarks:

One in three released felons returns to prison

SCOKY: Kentucky School Shooter Michael Carneal case before Kentucky Supreme Court again, Sept. 11 with args to be heard at UofL Law School

Michael Carneal case before Kentucky Supreme Court again.  Arguments set for September 11, 2008 to be held at the University of Louisville's School of Law.  Issues, story follow:

The time and issues are:

11:00 a.m. COMMONWEALTH OF KENTUCKY V. CARNEAL (2006-SC-653-DG) AND (CROSS MOTION) CARNEAL V. COMMONWEALTH OF KENTUCKY (2007-SC-203-DG)
"Criminal Law. RCr 11.42. Competency Hearings. Insanity. Issues include: (1) whether RCr 11.42 limitations period is tolled for juveniles, and (2) whether retrospective competency hearing, based on new mental evaluation, should be granted even though such a hearing had been held prior to guilty plea."
Discretionary Review granted 03/14/2007 and 05/16/2007
McCracken Circuit Court, Judge R. Jeffrey Hines
For Movant/Cross-Respondent: David A. Smith
For Respondent/Cross Movant: David Hare Harshaw III and Timothy G. Arnold
(Note: Chief Justice Minton is recused)

The Courier Journal's story is:

Ky. school shooter seeks 2nd chance

LOUISVILLE . A high school shooter who killed three classmates and wounded five others is asking Kentucky's Supreme Court for another chance.

Michael Carneal, now 25, claims he was too mentally ill to plead guilty in 1998 to going into Heath High School in west Paducah and shooting eight students gathered for an informal prayer service. He is serving a sentence of life without a chance of parole for at least 25 years for the shooting Dec. 1, 1997, when he was 14.

Carneal's case is back in the spotlight because last year the Kentucky Court of Appeals sent it back to McCracken County Circuit Court to decide whether he should be granted a new hearing. The ruling said if Carneal is determined to have been incompetent when he pleaded guilty, he should be allowed to enter another plea or go to trial.

Prosecutors appealed, setting up the Kentucky Supreme Court's hearing, scheduled for Sept. 11. The Supreme Court will decide whether Carneal should get a new competency hearing and trial.

6th CIR: Three criminal law posts out of Sixth Circuit Criminal Law Blog

Here are three recent posts from the Sixth Circuit Criminal Law Blog:

• Third Time Less Than Charming
• Another Day, Another Ruling on Preserving Issues for Appeal
• Preserving Motions to Compel

LAWREADER: "There is a new sheriff in town. Our new Kentucky Supreme Court shows that they believe justice should trump procedure."

From Lawreader: There is a new sheriff in town. Our new Kentucky Supreme Court shows that they believe justice should trump procedure.

CRIMINAL: Lawmakers asked allow death penalty for severe abuse or toturing of a child

From Kentucky.com:

Kentucky prosecutor urges changes to death penalty law.   * * * Kenton County Commonwealth.s Attorney Rob Sanders has asked lawmakers to sponsor a bill that would allow the death penalty to be an option when there is evidence that a defendant has severely abused or tortured a child.

CRIMINAL NEWS: "Online sex stings in Kentucky succeed"

Online sex stings in Kentucky succeed COURIER JOURNAL

As part of the sting, Perverted Justice members pretend to be young teenagers while corresponding online with men who vividly described sexual acts they would like to perform -- sometimes sending sexually graphic photographs or video via the Internet -- and then arrange to meet at the child's home.

CRIMINAL NEWS: "New trial for death row inmate ends in deadlock"

New trial for death row inmate ends in deadlock KENTUCKY.COM

Jurors have deadlocked in the case of a western Kentucky man who spent 16 years on death row before the state Supreme Court ordered a new trial.

 

Charles Bussell was convicted in 1991 for the robbery and murder of Sue Spears Lail in Christian County.

 

The Supreme Court last year ordered a new trial for Bussell. The ruling said Bussell was denied a fair trial because prosecutors failed to disclose evidence favorable to him and because he had ineffective counsel.

 

Judge Andrew Self declared a mistrial Tuesday after jurors said more deliberations would be fruitless.

 

Juror Rebecca Coleman told The (Hopkinsville) New Era that members deadlocked 8-4 in favor of guilt.