Kentucky Law Review

News: Louisville Forum on Officer Absent and Cases Dismissed

Here is a short link to the forum story following the Officer Absent, Case Dismissed series by the Courier Journal at the Louisville Forum.  I looked for the video on line to no avail.  Should you know, then email me the link.

For what it is worth, I think the police are unnecessarily taking the brunt of the heat for a problem that has existed for years with its dysfunction becoming the norm and accepted practice.  Electronic warrants and monitoring attendance may make sure the officers know and the absences accounted for, but with a police force of limited size and a criminal docket growing almost by unlimited means, then the system of prosecuting, appearances, etc. needs to be examined also.  When cops are waiting in the courthouse halls waiting to be called (or not called) then they are not on the streets investigating and enforcing the laws.  Judges did not follow up on those failing comply with the subpoena, prosecutors wrote a few letters and did not push the issue further (eg., former county attorney and now circuit court Judge Irv Maze was in charge for most of the time period that came under the Courier's scrutiny), and defense attorneys playing dismissal lotto in the event of a no show.

And of course, all the concern seems to be on the criminal side of the house, but there are those in the civil side with cases that need the police to show in which the subpoena process often requires private bailiffs to track down the police officer to serve the warrant that he or she does not want to receive.  People can be victims and be hurt in ways beyond the criminal laws - eg., car accidents and other injuries.

Police to make court more, forum is told

Charges being dismissed because police aren't present for court hearings, an outdated paper subpoena system and a lack of monitoring case dispositions have been longtime problems in Jefferson County, Mike O'Connell, the county attorney, said during a Louisville Forum panel discussion  * * * *

Rules: peremptory challenge to strike a member of a racial minority from the jury panel

In light of a couple of recent Kentucky decisions on the issue, David Kramer has prepared prepared a supplemental comment as follows under CR 47.03 for the 2009 pocket part (due out in May) of the West Civil Practice Series Vol. 7 about use of a peremptory challenge to strike a member of a racial minority from the jury panel.

CR 47

CR 47.03, p. 195 (main volume), Author’s Comment 4, “Peremptory Challenges Made on Racial Basis,” add commentary:

The determination whether the use of a peremptory challenge against a member of a racial minority in a civil or criminal case violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution involves a three-step process.(1)   First, the party opposing the strike must make a prima facie showing that the opposing attorney has exercised a peremptory challenge based on race.  Second, if such a prima facie showing has been made, the burden shifts to the party making the strike to articulate a racially neutral explanation for striking the juror in question.  The trial court must determine whether the party who struck the juror in question had a good-faith belief in the information it relied on as the basis for the peremptory challenge, and whether the party has articulated the reason in a race-neutral manner.(2)   Self-serving explanations based on intuition or mere disclaimers of discriminatory motive are insufficient for this purpose.(3)   Third, the trial court must determine whether the party opposing the strike has carried the burden of proving purposeful discrimination by evaluating the evidence of racial motivation in light of the proffered race-neutral explanation.(4)   An evaluation of counsel’s state of mind and credibility in articulating the reason(s) for the peremptory challenge lies “peculiarly within a trial judge's province.”(5)   The trial court’s ruling on a Batson objection on racial grounds to a peremptory challenge will not be disturbed unless clearly erroneous.(6)

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  1. Batson v. Kentucky, 476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991); Fugett v. Comm., 250 S.W.3d 604 (Ky. 2008).
  2. Chatman v. Comm., 241 S.W.3d 799 (Ky. 2007); Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992).
  3. ugett v. Comm., 250 S.W.3d 604 (Ky. 2008).
  4. Batson v. Kentucky, 476 U.S. at  98.  See also McPherson v. Commonwealth, 171 S.W.3d 1 (Ky. 2005).
  5. Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992), quoting Hernandez v. New York, 500 U.S. 352 (1991).
  6. Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000).

"Reprinted from the forthcoming supplement to Rules of Civil Procedure Annotated, 6th ed (Vols. 6 & 7, Kentucky Practice Series), by the late Kurt A. Philips, David V. Kramer and Todd V. McMurtry, with permission.  Copyright (c) 2009 Thomson Reuters.  For more information about this publication please visit http://west.thomson.com/productdetail/130503/11774808/productdetail.aspx."

COURTS: Officer Absent, District Court Prosecutions and a hard-hitting letter to the editor

The recent stories by the Courier Journal on Officer Absent has prompted the following letter to the editor.  It has been several weeks, with no real substantive developments on solving the problem of district court dismissals for failure of police officers to show up as witnesses.

Why hasn't the bar association or someone with the AOC taken the bull by the horns to get all the principals together - police chief, county attorney, commonwealth attorney, chief public defender, chief district court judge - to map out a plan?

Although a computerized subpoena system seems to be at the forefront to remedy the problem, it will only serve as a means of getting the word to the witness.  Without the power of the police chief, the courts, and the prosecutors backing it up, there will be little change. Conduct without consequences will not make any difference.

However, a change in attitudes will not accomplish the goals alone.  A system of running district court prosecutions which were designed to operate under the caseloads of a half-century ago using outdated scheduling and timing will not fully benefit from a computer designed subpoena system.  But a change in attitudes and approaches will be a good start.

Here's the letter entitled "Gross Negligence":

The recent investigation by The Courier-Journal of our court system and its relationship with the police department was a shocking revelation of terrible administration, gross negligence and dreadful performance. That this has been an ongoing problem for years and never corrected is even worse.
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Other cities, we are told, have had this type of situation and fixed it.

We can't brag any more about our city's "livability" when court cases of criminal activity aren't prosecuted because the police don't testify.

This appalling misconduct begins in the police department, goes right to every one of the Metro Council members, each person with any authority in the court system, and ends with the Mayor's office. Every one of them should be ashamed of themselves.

Mrs. ROBERT M. NASH

Some other stories or letters:

'Officer Absent: A police officer responds

I would like the opportunity to make a few observations concerning your 'Officer Absent' exposé as it appears to have missed or failed to provide a more complete story to the issue.

Reform pledge

A week after The Courier-Journal printed a series of articles about problems with Louisville Metro Police Department officers not showing up for court appearances, it is clear that LMPD Chief Robert White grasps the seriousness of the lapses reported in the stories.

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.