Volume 29, No. 5 November 2007
RESTORING HOPE
USING SOCIAL WORKERS WITH PUBLIC DEFENDERS
By Dawn Jenkins, MSW, and Jennifer G. Withrow, MSW
“My client was looking for just one person to believe in
him. Even his parents had turned their backs on him. I was
that one person.”
— Jacque Joiner, MSW,
Covington Public Defender’s Office
“The primary mission of the social work profession is to
enhance human well-being and help meet the basic human
needs of all people, with particular attention to the needs
and empowerment of people who are vulnerable, oppressed,
and living in poverty…social workers promote social justice
and social change with and on behalf of clients,” according
to the National Association of Social workers Preamble.
Public Defenders are advocates for needy or indigent
juveniles and adults who are accused of “serious crimes” or
those whose legal action could result in detainment and the
loss of liberty. (KRS Chapter 31)
Together, social workers and public defenders are able to
successfully:
• Divert persons with significant social and economic
barriers to services and treatment so that they can
successfully transition into their communities and become
productive citizens;
• Provide judges with relevant mitigating information on
their clients’ health, mental health, and social history, as
well as viable alternatives to incarceration;
• Save Kentucky money in incarceration costs by diverting
persons with addiction and mental illness to communitybased
treatment; and
• Impact the overall rate of persons likely to re-enter the
criminal justice system.
National View on Whole Client Defending
“Holistic law is predicated on the belief that nothing
happens out of context. Falling ill or becoming involved in
a legal matter does not happen in a vacuum. Rather, a
process or series of events is required to bring the person to
the point where he develops cancer or she finds herself
enveloped in a nasty divorce,” according to Bill van
Zyverden, Founder, The International Alliance of Holistic
Lawyers.
Since the early 1990’s DPA has had as one of its core values
and long term goals, holistic client representation. One of
DPA’s long term goals is service to The Whole Client. This
goal states, “The Department will develop the capacity to
represent the whole client, working with their families and
developing disciplines such as social workers, alternative
sentencing advocates, mental health specialists, drug
treatment providers, community defending, specialty courts,
and team child.”
The agency began to work to implement this goal using
alternative sentencing workers in the 1990s funded initially
by a grant from the
Sentencing Project.
Mitigation specialists, many
with social work degrees,
were hired to assist in capital
cases. Then in 2002, DPA
received a federal grant to
partner with colleges of
social work and place social
work interns in trial offices.
These experiences helped
prepare the agency for the
current opportunity to
integrate social workers into
DPA as part of the defense
team.
Using social workers as an
integral part of a Public
Defender team is not a new
concept. Several states are
using social workers to great
success for individuals and
the criminal justice system.
The Bronx Public Defenders, Baltimore Public Defenders,
Maricopa County Public Defenders, Colorado Public
Defenders, and Rhode Island Public Defenders are using a
holistic approach to serving individuals with significant
economic and social barriers. Social workers have the training
and ethical and professional standards that make them
appropriate members of a successful defense team. They are
trained to assess health and mental health problems, find
needed treatment and resources appropriate for each
individual, and have the skill and will to assist in a client’s
successful transition from jail to their families and
communities.
The social service workers in Rhode Island, while affecting
thousands of lives, also saved the state $15 million dollars.
Colorado realized a savings of $4.5 million, in one county
alone. Their success includes diverting chronically mentally
ill adults from jails to community case management and
treatment. Through social worker intervention, jail
confinement between arrest and sentencing was shortened,
thus saving their state money.
Kentucky’s View: The Social Worker Pilot Project
In some regards, the Department Of Public Advocacy is the
largest law firm in Kentucky. Unlike other law firms, their
clients are needy juveniles and adults who enter the criminal
justice system with very complex economic and social ills.
By serving only the criminal complaint of individuals, and
not addressing the root cause of criminal activity, defenders
do a disservice to them and to the criminal justice system.
The bottom line, by serving the whole client, defenders can
reduce the number of persons re-entering the justice system
and save taxpayer’s money.
After receiving necessary legislative funding to create the
Social Worker Pilot Project, a core group of committed
individuals, including educators from the Kentucky schools
of Social Work, advocates, public defenders, and social work
professionals designed the Pilot. They created data collection
tools to measure successful outcomes including cost
savings and program effectiveness.
In September 2006, DPA hired the first staff social worker.
Three of the four social workers have master’s degrees in
social work. Each has bachelor’s degrees in social work.
DPA conducted office orientations and held a week-long
certified training for the new social workers and attorneys.
The Pilot began in October 2006 and was completed this
month, October 2007. Pilot offices include the Owensboro,
Morehead, Covington, and Bowling Green Trial Offices.
Combined the Pilot covers 17 counties.
DPA social workers begin working with clients from the time
each is appointed by the court, and conclude only after six
months following the disposition of that client’s case or
until the client is stable. DPA’s social workers have been
100% successful in finding available beds and outpatient
treatment, although it has required going to other states or
adjacent counties.
DPA social workers are
responsible for a variety of
services from conducting
mental health and
substance abuse
assessments to locating
treatment. “When I call a
treatment provider for a
client, the facility
responds more quickly
than if the attorney calls.
Facilities want to know
we have already made an
assessment,” says Rachel
Pate, BSW, Owensboro,
“Building sustainable
relationships with service
providers is also
important.” DPA social
workers also work with
attorneys to create
alternative sentencing
plans for judicial review,
and assist in the client’s
transition from jail to
treatment and from
treatment into the
community. During the
course of the pilot, the
typical person assigned a
social worker has been
someone with a history of alcohol or drug dependency or a
person with signs or symptoms of mental health problems.
Measuring Success
The Urban Studies Department, University of Louisville is
currently analyzing the data collected from the over 321
people served during the one year Pilot. This analysis will
be presented in the form of an objective report due on
December 1, and presented to the 2008 Kentucky Legislature.
Report findings will include an evaluation of the economic
and social problems facing DPA clients. The report will
present numbers for referrals to treatment and successful
completion of treatment. It will present successful alternative
sentencing options such as employment and education.
DPA implemented the pilot at a time when Kentucky’s prison
population is over 22,000. Jails are 22% over capacity, and
prisons are full. 1000 to 2000 new inmates are being added to
the prison population each year, and no new prisons are
being built.
The Pilot report will determine the savings to the
Commonwealth when using a social worker to divert needy
persons to treatment versus incarcerating them in jail,
prison or a juvenile treatment facility. Daily incarceration
costs add up: $36 average per day for and adult in a county
jail, $68.00 average per day for prison, and $200 to $422 per
day for juvenile treatment. The Department of Correction’s
Budget is higher than it has ever been at $417 million in
2008. These costs do not include collateral costs of
incarceration such as foster care for children, which is $22
per day for each child, and the Kentucky Transitional
Assistance Program, which is $186 per month for one child.
Yet, by diverting just three clients from jail, prison or
detention to treatment, the Commonwealth can pay the
salary, benefits, and operating expenses for one social
worker, $42,000.
Turning Lives Around
What is the value to Kentucky when someone
successfully reintegrates into the community, works
again, becomes a mother again? DPA clients report
that following intervention from their DPA social
worker, they were able to regain custody of their
children. Others report completing substance abuse
treatment and staying clean. Still others have obtained
job training, maintained employment, and paid victim
restitution and fines.
Owensboro Social
Worker, Rachel Pate,
BSW graduate of
Brescia University,
helped her 42 year
old client turn his life
around. He had been
arrested 32 times on
drug charges,
fleeing and evading,
and alcohol
charges. His
criminal activity began when he was a child.
Yet, no one had ever successfully explained chemical
dependency and his options for recovery. Rachel gave him
the hope he needed through alternatives to incarceration.
The client has remained in treatment and recovery. The
inpatient treatment program reported he is on the road to
recovery.
DPA social workers are providing a missing link between
the criminal justice system and the treatment community.
DPA social workers are providing a missing link between the
criminal justice system and the treatment community. Rachel
worked with the River Valley Case Management providers
to help change their policy and procedures regarding the
incarcerated population. “As part of Rachel’s advocacy,
River Valley Comprehensive Care Center developed a policy
that our case managers would provide services to mentally
ill inmates prior to their being released from jail, thereby,
assuring that mentally ill clients receive the seamless
services,” said Karen Thompson, Director of Case
Management, River Valley Comp. Care.
DPA social workers work closely with drug court officials.
Morehead Social Worker, Sarah Grimes, MSW and graduate
of the University of Kentucky, worked with a client facing 1-
5 years in prison. Sarah composed a treatment
recommendation plan including a drug court referral. The
client was granted a 3 year diversion, contingent on her
successful completion of Rowan County Drug Court. Since
entering drug court the client has had all negative urine drug
screens and met all requirements of drug court.
DPA social workers are experts in working with juvenile
offenders, who without early intervention, are at risk of
becoming adult offenders. “I worked with a 15 year old
juvenile who was to be charged as an adult on two charges
including burglary 1st and robbery 1st. He was also suspended
from school for two years. After her intervention, the client
returned all the stolen items and made restitution. He was
deeply remorseful for his actions. He came to understand
his addiction to marijuana. He entered substance abuse
recovery and individual
counseling, for family problems.
He was admitted back into high
school. Today, he plays football
for Warren County High School.
The judge gave him a second
chance and now he has the tools
to succeed,” described Kita
Clement, MSW, a graduate of
Western University School of
Social Work.
DPA’s Budget Request
DPA is requesting $2.3 million in FY09 and $2.4 million in
FY10 to expand this social worker program to every field
office and to post-trials. This will be an investment that will
pay off in real dollars by reducing incarceration levels. In
addition, lives will be repaired and restored and communities
will be healed.
Through the combined effort of the Social Worker Pilot
Project, DPA is better able to address the complex economic
and social needs of our most troubled clients. Our social
workers clearly made a difference in the lives of the 361
clients served during the Pilot. DPA’s client’s success can
be counted as a success for the criminal justice system.
“Every client whose life is restored today is less likely to
re-enter the criminal justice system tomorrow,” says Ernie
Lewis, “I am hopeful the 2008 Kentucky legislature will
find value in the Social Worker Pilot and fully fund social
worker in the 26 remaining defender offices in 2009-10.
Thursday, December 20, 2007
PRACTICE CORNER
Make a good record on conditional guilty pleas
Recently, we’ve seen a number of final judgments which do not have the condition on which the plea is made reflected in
the judgment or cases which say they are based on a conditional guilty plea, but do not specify the issue being appealed
either in the judgment or on the videotape.
RCr 8.09 states that when a defendant enters a conditional plea, the conditions must be written. When entering a conditional
guilty plea, PLEASE make sure to note on the record the condition(s) under which the plea is taken and make sure that the
conditions are noted in the final judgment.
Defendant’s testimony to develop standing at suppression hearings cannot be used against a defendant at a trial.
If the Commonwealth’s Attorney in your area wants to use the defendant’s testimony in this way, OBJECT and cite to
Simmons v. United States, 390 U.S. 377, 393-394 (1968). In that case, the Supreme court said “a defendant is ‘compelled’ to
testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forego a benefit,
and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit. However, the
assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the
benefit. When this assumption is applied to a situation in which the ‘benefit’ to be gained is that afforded by another
provision of the Bill of Rights, an undeniable tension is created. . . . .We find it intolerable that one constitutional right
should have to be surrendered in order to assert another.”
The Kentucky case to cite is Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005). In that case, the Kentucky Supreme Court
cited the “intolerability” language from Simmons. The court also noted that Hayes had not received a ruling on his
suppression motion before announcing ready for trial.
In other words, make sure you get rulings on suppression motions, think about possibly doing a motion in limine based on
Simmons and Hayes to prevent the prosecution from using your client’s testimony to establish standing against him,
OBJECT when he or she does it, and make sure you get a ruling on that objection.
Short reminders
Reyes v. Commonwealth, 764 S.W.2d 62 (Ky. 1989), holds that defendants can enforce specific performance of plea bargains
against both prosecutors and judges.
Anderson v. Commonwealth, 864 S.W.2d 909 (Ky. 1993), holds that in a Brady/discovery situation, knowledge from records
of other state agencies is imputed to the Commonwealth.
Recently, we’ve seen a number of final judgments which do not have the condition on which the plea is made reflected in
the judgment or cases which say they are based on a conditional guilty plea, but do not specify the issue being appealed
either in the judgment or on the videotape.
RCr 8.09 states that when a defendant enters a conditional plea, the conditions must be written. When entering a conditional
guilty plea, PLEASE make sure to note on the record the condition(s) under which the plea is taken and make sure that the
conditions are noted in the final judgment.
Defendant’s testimony to develop standing at suppression hearings cannot be used against a defendant at a trial.
If the Commonwealth’s Attorney in your area wants to use the defendant’s testimony in this way, OBJECT and cite to
Simmons v. United States, 390 U.S. 377, 393-394 (1968). In that case, the Supreme court said “a defendant is ‘compelled’ to
testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forego a benefit,
and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit. However, the
assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the
benefit. When this assumption is applied to a situation in which the ‘benefit’ to be gained is that afforded by another
provision of the Bill of Rights, an undeniable tension is created. . . . .We find it intolerable that one constitutional right
should have to be surrendered in order to assert another.”
The Kentucky case to cite is Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005). In that case, the Kentucky Supreme Court
cited the “intolerability” language from Simmons. The court also noted that Hayes had not received a ruling on his
suppression motion before announcing ready for trial.
In other words, make sure you get rulings on suppression motions, think about possibly doing a motion in limine based on
Simmons and Hayes to prevent the prosecution from using your client’s testimony to establish standing against him,
OBJECT when he or she does it, and make sure you get a ruling on that objection.
Short reminders
Reyes v. Commonwealth, 764 S.W.2d 62 (Ky. 1989), holds that defendants can enforce specific performance of plea bargains
against both prosecutors and judges.
Anderson v. Commonwealth, 864 S.W.2d 909 (Ky. 1993), holds that in a Brady/discovery situation, knowledge from records
of other state agencies is imputed to the Commonwealth.
SIXTH CIRCUIT REVIEW
By Meggan Smith, Post-Conviction Branch
Eddleman v. McKee, 471 F.3d 576 (C.A.6 (Mich.)), discussed
in the April 2007 issue of The Advocate, was overruled by
Fry v. Pliler, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). In Fry,
the U.S. Supreme Court held that on collateral review, “a
court must assess the prejudicial impact of constitutional
error in a state-court criminal trial under the ‘substantial and
injurious effect’ standard set forth in Brecht, whether or not
the state appellate court recognized the error and reviewed it
for harmlessness” under the Chapman standard.
Nichols v. United States,
— F.3d ——, 2007 WL 2326051, (C.A.6 (Tenn.))
Before Keith, Moore, and Cole, Circuit Judges
Even though United States v. Booker, 543 U.S. 220 (2005)
had not yet been decided when the defendant was sentenced,
defense counsel was ineffective for failing to preserve a
Sixth Amendment challenge to the defendant’s sentence
because Apprendi v. New Jersey, 530 U.S. 466(2000), had
cast the constitutionality of the Federal Sentencing
Guidelines into considerable doubt and because the
enhancements to the defendant’s sentence directly
presented circumstances that were called into question by
Apprendi.
Thomas Albert Nichols was convicted in federal court of
bank extortion involving the use of a dangerous weapon
and bank extortion involving forcing a victim to accompany
a robber. Under the then-mandatory Federal Sentencing
Guidelines, Nichols’ sentence was enhanced for taking the
property of a financial institution, the amount of the loss
involved, use of a firearm, abduction of a victim, the
vulnerability of a victim, and the use of a child in the course
of the offense. The court sentenced Nichols to 405 months
in prison.
In his federal habeas action, Nichols claimed that his attorney
had been ineffective in failing to object to the sentence
enhancements on Sixth Amendment grounds. At the time of
Nichols’ sentencing, the U.S. Supreme Court had decided
Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the subscribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Id. at 490. However, the
Supreme Court did not hold that the mandatory Federal
Sentencing Guidelines violated the principle announced in
Apprendi until two years after Nichols had been sentenced.
See United States v. Booker, 543 U.S. 220 (2005).
Although courts rarely find an attorney ineffective “based
upon a trial attorney’s failure to make an objection that would
have been overruled under then-prevailing law,” the Sixth
Circuit recognized that this was a “rare case” where counsel
“failed[ed] to raise an issue whose resolution [was] clearly
foreshadowed by existing decisions.” The Court noted that,
after Apprendi, numerous commentators had questioned the
continued validity of the Guidelines. Most importantly, the
concurring and dissenting opinions in Apprendi suggested
that the majority’s reasoning would lead to the invalidation
of the Guidelines.
As to the deficient performance prong of the Strickland test
for ineffectiveness, the Court stated:
With the future state of the law so uncertain
post-Apprendi, we believe that any counsel
whose performance satisfied an ‘objective
standard of reasonableness’ would have at
least been cognizant of possible extensions
of Apprendi to challenge the Federal
Sentencing Guidelines and the necessity of
preserving those challenges in case the
Supreme Court struck down the Guidelines
while the defendant’s case was pending on
direct appeal.
The Court recognized that:
[U]nder our decision today, the performance
of many attorneys who represented criminal
defendants after Apprendi but before Blakely
and Booker will be deemed constitutionally
deficient. The question before us, however,
is not what some or most attorneys actually
did, but whether the performance of Nichol’s
counsel ‘fell below an objective standard of
reasonableness.’ Although we recognize that
common practices may provide evidence of
the objective standard by which we should
measure the performance of individual
attorneys, common practices can never be
determinative lest we freeze our expectations
of counsel at one moment in time, never to
improve or change in response to
developments in, for example, education,
technology, and the law itself.
Having found that Nichols’ attorney’s performance was
deficient, the Court turned to the question of prejudice.
Because Booker does not apply retroactively, to establish
that there was a reasonable probability that the result of his
sentencing would have been different, Nichols had to show
that, but for counsel’s deficient performance, he would have
had a direct appeal pending when Booker was decided. While
the Court recognized that it would be difficult for many
defendants to establish this, in Nichols’ case, his
codefendant’s Sixth Amendment challenge to his sentence
was still pending on direct review when Booker was decided,
and, therefore, his codefendant’s case was remanded for
reconsideration in light of Booker.
Although the specific issues surrounding the Federal
Sentencing Guidelines are not pertinent to Kentucky state
court proceedings, the Sixth Circuit’s analysis of Nichols’
ineffective assistance of counsel claim is particularly
instructive, especially as to the issue of deficient
performance. The Court’s recognition that Nichols’ attorney’s
performance “fell below an objective standard of
reasonableness” even though his conduct was the common
practice among many attorneys has significant implications
for courts’ future treatment of ineffectiveness claims.
Vasquez v. Jones,
— F.3d ——, 2007 WL 2176985 (C.A.6 (Mich.))
Before Rogers and Cook, Circuit Judges, and Gwin, District
Judge
The state court’s holding that the exclusion of a witness’s
prior convictions, offered as impeachment, did not violate
the Confrontation Clause was an unreasonable application
of Supreme Court precedent.
Emilio Vasquez was convicted in connection with a shootout
in which an innocent bystander was killed by a 9-millimeter
handgun. Vasquez claimed that he shot a rifle, not a handgun,
in self-defense. Demond Brown testified at the preliminary
hearing that he saw Vasquez fire a handgun. Brown could
not be located to testify at trial, but the court admitted his
preliminary hearing testimony at Vasquez’s trial. Defense
counsel objected to the admission of the prior testimony,
and attempted to admit evidence that Brown had been
offered a deal by the prosecution to testify at the preliminary
hearing and that Brown had a criminal record. Only the
issue of the exclusion of Brown’s prior convictions was
preserved for federal habeas review.
Because the state court had found that any Confrontation
Clause error was harmless but never decided whether there
was any error, the Sixth Circuit applied “modified AEDPA
deference.” “Under this standard, the court conducts a
‘careful’ and ‘independent’ review of the record and
applicable law, but cannot reverse ‘unless the state court’s
decision is contrary to or an unreasonable application of
federal law.’”
The Court held that the state court’s rejection of Vasquez’s
Confrontation Clause claim was an unreasonable application
of Supreme Court precedent, particularly Davis v. Alaska,
415 U.S. 308 (1974). Davis held that the state court violated
the defendant’s right to confrontation by preventing him
from impeaching a witness with his prior criminal record.
The Sixth Circuit rejected the state’s contention that “’[t]he
Supreme Court has never held that cross-examination with
regard to credibility, as opposed to bias, is constitutionally
protected,’” finding that the cases “draw[] no meaningful
distinction between the constitutional status of crossexamination
as to bias and that of cross-examination as to
credibility or character for truthfulness.”
The Court went on to hold that the Confrontation Clause
violation was not harmless. Recognizing that Fry had
overruled Eddleman (discussed above), the Sixth Circuit
applied the Brecht standard: whether the error had a
substantial and injurious effect on the jury’s verdict. Under
this standard, the error was not harmless because Brown’s
testimony was important to the state’s case, Brown’s
testimony was not cumulative, no physical evidence
corroborated Brown’s testimony, defense counsel could not
be expected to have questioned Brown about his prior
convictions at the preliminary hearing given the voluminous
discovery involved in the case and the different motivations
at preliminary hearings and at trial, and the state’s case was
not particularly strong without Brown’s testimony.
Girts v. Yanai,
— F.3d ——, 2007 WL 2481018, (C.A.6 (Ohio))
Before Martin, Batchelder, and Clay, Circuit Judges
The Prosecutor’s comments on defendant’s failure to testify
or speak to the police violated the defendant’s Fifth
Amendment rights and were sufficiently flagrant to warrant
the reversal of the defendant’s conviction despite defense
counsel’s failure to object.
Robert Girts was convicted by a jury of aggravated murder.
During the state’s closing argument, the prosecutor
commented on the defendant’s failure to testify in his own
defense or talk to the police, and defense counsel failed to
object to such comments. Among the comments were:
Again these are [the defendant’s] words. And
the words that you heard from these folks
supplied by him are unrefuted, and they are
uncontroverted. There has been no evidence
offered to say that these people are incorrect.
None at all.
[W]ith respect to the source [of the cyanide],
the defendant had no less than three
occasions to tell the police that he had
ordered cyanide.
Ladies and gentlemen, we don’t have to tell
you how it was introduced into her system.
We know that it was ingested. And there is
only one person that can tell you how it was
introduced, and that’s the defendant.
On federal habeas review, the district court found that the
prosecutor’s comments were improper and that defense
counsel was ineffective for failing to object, but that Girts
had failed to show prejudice.
The Sixth Circuit first addressed whether the issue was
procedurally defaulted in state court. Because the state
court had reviewed the prosecutor’s comments under a plain
error standard, the Court found that the state had not waived
its procedural default rules. However, the Court found that
Girts overcame the procedural default: “[W]e find that [Girts]
meets the cause and prejudice exception to the procedural
default because his trial counsel was ineffective in failing to
object to the prosecution’s statements during closing
argument.”
Defense counsel’s failure to object to the prosecutor’s
comments was deficient performance because “[t]here was
no conceivable benefit to be derived from failing to challenge
the prosecutor’s improper statements.” The Court found
that the resulting prejudice was “patent:”
If trial counsel had raised an objection, the
trial court would have reprimanded the
prosecutor and issued a prompt curative
instruction to the jury. In turn, the jury would
have heard from the judge that the prosecutor’s
comments called for an improper and
impermissible negative inference for
Petitioner’s exercise of his Fifth Amendment
rights. Certainly, if an objection had been raised
to the prosecutor’s first statement, the
prosecutor would not have been permitted to
continue to overstep with subsequent
comments. Trial counsel’s failure to object
exacerbated the prejudicial effect of the
prosecutor’s statements. We find that there is
a strong likelihood that at least one juror would
have changed his mind if the improper and
prejudicial statements would not have been
made, especially because the prosecutor
presented weak and limited evidence at trial.
In determining whether the prosecutor’s comments were
sufficiently flagrant to warrant a reversal of Girts’ conviction,
the Court “’first consider[ed] whether the prosecutor’s
comments were improper,’ and ‘then consider[ed] and
weigh[ed] four factors:’”
(1) whether the conduct and remarks of the
prosecutor tended to mislead the jury or
prejudice the defendant; (2) whether the
conduct or remarks were isolated or extensive;
(3) whether the remarks were deliberately or
accidentally made; and (4) whether the evidence
against the defendant was strong
As to the first factor, the Court found the comments to be
prejudicial because they went to the central issues in dispute,
namely, how Girts’ wife ingested cyanide, how Girts obtained
cyanide, and what Girts said about his wife’s death. The
general jury instruction on a defendant’s Fifth Amendment
right was not sufficient to cure the prejudice.
Next, the Court found that the comments were not isolated,
but were in fact a “central theme” in the state’s closing
argument, and that the comments were deliberately placed
before the jury. Lastly, the Court found that the strength of
the evidence against Girts was not sufficient to overcome
the prosecutor’s improper comments: “Given the facts in
this case, there is a strong likelihood that the prosecutor
strategically made the prejudicial statements at the end of
the trial to focus the jury’s attention on [Girts’] silence, and
away from the limited evidence presented at trial.”
Justice Batchelder, in dissent, disagreed with the majority’s
application of the four factors, especially the strength of the
evidence against Girts.
Ferensic v. Birkett,
— F.3d ——, 2007 WL 2471276, (C.A.6 (Mich.))
Before Clay, Gilman, and McKeague, Circuit Judges
Robert Ferensic was convicted of armed robbery, home
invasion, and possession of a firearm during the commission
of a felony. The evidence against Ferensic consisted solely
of eyewitness identifications by the two victims. At trial, the
defense was prevented from presenting two key witnesses,
Dr. Harvey Shulman and Danny St. John. Dr. Shulman was
an expert on eyewitness identification. The court excluded
his testimony because defense counsel failed to comply with
a pretrial discovery order which ordered counsel to provide
the prosecutor with a copy of Dr. Shulman’s report at least
two months before trial. Instead, the report was provided
eleven days before trial.
St. John had witnessed the robbers enter the victims’ home
and was prepared to undermine the victims’ description of
the robber offered at trial and to testify that he had never
seen the defendant before. The court excluded his testimony
because he was not present in the courtroom at the end of
the defendant’s case. The trial had proceeded faster than
defense counsel anticipated, and he had instructed St. John
to arrive later in the day. The court refused to adjourn to
allow time for St. John to arrive.
The state court had held that the exclusion of Dr. Shulman’s
testimony, a “concededly severe sanction,” did not prejudice
Ferensic because defense counsel was able to effectively
challenge inconsistencies in the victims’ identifications
through his cross-examination. As to St. John’s testimony,
the state court found no prejudice is its exclusion because
“[t]he purported testimony was not especially strong, . . .
and inconsistency inherent in the victims’ identification was
otherwise shown.”
In reviewing Ferensic’s “right to present a defense” claim,
the Court must determine whether the exclusion of evidence
was “’arbitrary’ or ‘disproportionate to the purpose[] [it is]
designed to serve.’” “[T]he exclusion of a defendant’s
evidence should be reserved for only those circumstances
where ‘a less severe penalty ‘would perpetuate rather than
limit the prejudice to the State and the harm to the adversary
process.”” The Sixth Circuit found that the state court had
acted contrary to Supreme Court precedent by failing to
apply this proportionality-based analysis. Instead, the state
court had applied a traditional prejudice-based analysis.
Under the correct standard, the Court found the trial court’s
exclusion of Dr. Shulman’s testimony to be arbitrary and
disproportionate:
Such disregard for the substantial rights of
one party in the absence of any prejudice to
the other raises an inference of arbitrariness.
(citations omitted). It is certainly proof of
disproportionality, especially in light of the
absence of harm to the prosecution [the
prosecutor did not wish to consult a rebuttal
expert and knew the identity of the defense’s
expert long before trial], the lack of willfulness
on the part of Ferensic’s counsel in violating
the discovery order (he turned over Dr.
Shulman’s report as soon as he received it 11
days before trial), and the lack of any delay
caused by counsel’s misstep.
***
The problem was exacerbated by the trial
court’s refusal to instruct the jury that the
two defense witnesses in question were not
permitted to testify. When defense counsel
failed to present either witness as promised
in his opening statement, the jury might have
concluded that the witnesses were unable or
unwilling to testify as expected and that
defense counsel could not live up to the
claims that he made in his opening statement.
As for the exclusion of St. John’s testimony, the Court found
that the state court had failed to apply the correct standard:
a broad, totality of the circumstances analysis. Instead, the
state court rested its decision on its determination that
Ferensic was not prejudiced by the exclusion.
Turning to the totality of the circumstances analysis, the
Court noted that the sole reason for the exclusion of St.
John’s testimony was that defense counsel had instructed
him to arrive at the courthouse at 11:00 a.m., but defense
counsel’s prior witness concluded his testimony at 10:35
a.m. The trial court refused to grant the half-hour
adjournment. “Granting Ferensic’s motion would likely not
have delayed the proceedings by more than half an hour.
Even a longer delay would have been justifiable in light of
the fact that, as Ferensic notes in his brief, ‘the trial judge
had scheduled three days for trial, and the case was
proceeding to closing argument in less than a day and a
half.’” Given these circumstances, the trial court’s refusal to
grant an adjournment was an abuse of discretion.
In determining that the exclusion of St. John and Dr.
Shulman’s testimony was not harmless, the Court emphasized
the cumulative effect of their testimony. Additionally, the
Court pointed to the fact that the jury had questions about
the identifications:
[T]he jury sent a note to the trial judge stating
that “[w]e would like to see the police report,”
and asked “[w]hat are our options if we don’t
totally agree on a verdict?’ The ‘police
report,” of course, contained the police sketch
as part of Ferensic’s larger file. Thus the jury’s
own words imply not only that it had doubts
about the strength of the case against
Ferensic, but also that those doubts related
at least in part to the contents of his police
file. Although the jury did not explicitly
question the “sufficiency” of the sketchbased
identification vis-à-vis Ferensic’s guilt,
its note, especially when considered in the
context of the erroneously excluded testimony
from Dr. Shulman and St. John, precludes us
from saying “with fair assurance . . . that the
judgment was not substantially swayed by
the error.” (citations omitted) We wish to
emphasize just how significant the jury’s note
is to our analysis, because it distinguishes
the present case from many others in which
the erroneous exclusion of an expert witness
on eyewitness identification might well be
harmless.
Having granted Ferensic relief based on his “right to present
a defense” claim, the Court did not address his ineffective
assistance of counsel claim, which was based on defense
counsel’s failure to provide Dr. Shulman’s report to the
prosecutor by the deadline and failure to ensure that St.
John was at the courtroom ready to testify in time.
Justice McKeague, in dissent, would hold that the state
court’s decision was not contrary to nor an unreasonable
application of federal law. McKeague would reach the
ineffectiveness claim and hold that the state court was not
unreasonable in finding that Ferensic was not prejudiced by
the exclusion of Dr. Shulman and St. John’s testimony.
McKeague also responded to the majority’s reliance on the
jury’s note in determining whether any error was harmless:
I do not agree with the majority that the note
the jury sent out during deliberations asking
to see the police report indicates that the jury
“had doubts about the strength of the case
against Ferensic.” Although, as the majority
observes, the police report contained the
artist’s sketch, it contained other information
as well, and the record contains no indication
that the jury was interested in the sketch
particularly. In any case, the trial court refused
to provide the jury with the report, as it had
not been entered into evidence, and after
further deliberations, the jury found Ferensic
guilty.
Varner v. Stovall,
— F.3d ——, 2007 WL 2593533, (C.A.6 (Mich.))
Before Gibbons and Sutton, Circuit Judges, and Beckwith,
Chief District Judge
Admission of the defendant’s prayers that she had recorded
in her journal confessing that she tried to kill her boyfriend
did not violate the Religion Clauses of the First and
Fourteenth Amendments. Court’s exclusion of evidence of
Battered Women’s Syndrome did not violate Sixth and
Fourteenth Amendment right to present a defense.
Janniss Varner was convicted of assault with intent to commit
murder after she hired someone to shoot her abusive
boyfriend. At trial, the prosecutor introduced excerpts from
Varner’s journal where she admitted trying to kill her boyfriend
and identifying the hired gunman. The journal entries were
often addressed “Dear God,” contained prayers of
supplication and thanks, and expressed her disillusionment
with organized religion and church services. The trial court
excluded expert testimony on Battered Women’s Syndrome
and refused to instruct the jury on provocation, reasoning
that self-defense and provocation defenses are not available
in cases involving a hired hit man.
In the Sixth Circuit, Varner first argued that the admission of
her journal entries violated the Religion Clauses:
[S]he makes the following four-step argument.
Step one: Michigan has created an evidentiary
privilege for religious communications. Step
two: the privilege applies only to religions that
encourage their members to communicate with
God through an intermediary. Step three: this
limitation discriminates among religions
because it disfavors belief systems in which
individuals communicate directly with God.
Step four: the solution to this First Amendment
problem is not to strike the privilege (which
would not benefit Varner) but to extend it to
all religions, including those that do not use
intermediaries, and thus to extend the privilege
to any journal entry that might be construed
as a prayer to God.
The Sixth Circuit held that the admission of Varner’s journal
entries did not violate the Religion Clauses because, “the
clergy-penitent privilege was never designed to apply to
private journal entries, and the confinement of the privilege
to its historic purposes does not offend . . . [the] requirements
of the Religion Clause of the First Amendment.” The Court
analogized the clergy-penitent privilege to the lawyer-client
privilege and the doctor-patient privilege, noting that all three
were intended to eliminate barriers to full disclosure in each
setting.
The privilege requires the communication to
be directed to a member of the clergy – just as
the other privileges require the
communication to be directed to an attorney
or doctor – because it is the clergy who may
be subpoenaed to testify against the
individual. The same possibility does not
exist with private writings to God, who may
be petitioned but never subpoenaed.
The confinement of the privilege to its traditional function
does not favor some religions over others, because the
privilege does not protect anyone’s journal entries, whether
addressed to God or not. Additionally, the admission of the
entries does not restrict Varner’s ability to practice her faith,
because her journal entries were not the only way she could
communicate directly with God.
The Court went on to hold that the state court’s exclusion of
expert testimony on Battered Women’s Syndrome did not
violate Varner’s Sixth and Fourteenth Amendment right to
present a defense. The state courts had determined that in
cases involving a hired gunman, the evidence would not
support a defendant’s belief that she was “in imminent danger
or that there is a threat of serious bodily harm.” The Sixth
Circuit stated, “Much as we sympathize with Varner’s plight,
we must conclude that the confinement of self-defense
instructions to cases of ‘imminent danger’ does not
unreasonably apply Supreme Court precedent [on the right
to present a defense], and neither does the state courts’
conclusion that a scheme to hire a contract killer does not
involve such an imminent danger.”
Likewise, Varner was not entitled to an instruction on
provocation. “Whether it is a question of self-defense or a
question of provocation, Varner fails to explain why an
individual who faces a non-imminent threat is not just as
capable of calling the authorities as of hiring a contract killer.”
Eddleman v. McKee, 471 F.3d 576 (C.A.6 (Mich.)), discussed
in the April 2007 issue of The Advocate, was overruled by
Fry v. Pliler, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). In Fry,
the U.S. Supreme Court held that on collateral review, “a
court must assess the prejudicial impact of constitutional
error in a state-court criminal trial under the ‘substantial and
injurious effect’ standard set forth in Brecht, whether or not
the state appellate court recognized the error and reviewed it
for harmlessness” under the Chapman standard.
Nichols v. United States,
— F.3d ——, 2007 WL 2326051, (C.A.6 (Tenn.))
Before Keith, Moore, and Cole, Circuit Judges
Even though United States v. Booker, 543 U.S. 220 (2005)
had not yet been decided when the defendant was sentenced,
defense counsel was ineffective for failing to preserve a
Sixth Amendment challenge to the defendant’s sentence
because Apprendi v. New Jersey, 530 U.S. 466(2000), had
cast the constitutionality of the Federal Sentencing
Guidelines into considerable doubt and because the
enhancements to the defendant’s sentence directly
presented circumstances that were called into question by
Apprendi.
Thomas Albert Nichols was convicted in federal court of
bank extortion involving the use of a dangerous weapon
and bank extortion involving forcing a victim to accompany
a robber. Under the then-mandatory Federal Sentencing
Guidelines, Nichols’ sentence was enhanced for taking the
property of a financial institution, the amount of the loss
involved, use of a firearm, abduction of a victim, the
vulnerability of a victim, and the use of a child in the course
of the offense. The court sentenced Nichols to 405 months
in prison.
In his federal habeas action, Nichols claimed that his attorney
had been ineffective in failing to object to the sentence
enhancements on Sixth Amendment grounds. At the time of
Nichols’ sentencing, the U.S. Supreme Court had decided
Apprendi v. New Jersey, 530 U.S. 466 (2000), holding that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the subscribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Id. at 490. However, the
Supreme Court did not hold that the mandatory Federal
Sentencing Guidelines violated the principle announced in
Apprendi until two years after Nichols had been sentenced.
See United States v. Booker, 543 U.S. 220 (2005).
Although courts rarely find an attorney ineffective “based
upon a trial attorney’s failure to make an objection that would
have been overruled under then-prevailing law,” the Sixth
Circuit recognized that this was a “rare case” where counsel
“failed[ed] to raise an issue whose resolution [was] clearly
foreshadowed by existing decisions.” The Court noted that,
after Apprendi, numerous commentators had questioned the
continued validity of the Guidelines. Most importantly, the
concurring and dissenting opinions in Apprendi suggested
that the majority’s reasoning would lead to the invalidation
of the Guidelines.
As to the deficient performance prong of the Strickland test
for ineffectiveness, the Court stated:
With the future state of the law so uncertain
post-Apprendi, we believe that any counsel
whose performance satisfied an ‘objective
standard of reasonableness’ would have at
least been cognizant of possible extensions
of Apprendi to challenge the Federal
Sentencing Guidelines and the necessity of
preserving those challenges in case the
Supreme Court struck down the Guidelines
while the defendant’s case was pending on
direct appeal.
The Court recognized that:
[U]nder our decision today, the performance
of many attorneys who represented criminal
defendants after Apprendi but before Blakely
and Booker will be deemed constitutionally
deficient. The question before us, however,
is not what some or most attorneys actually
did, but whether the performance of Nichol’s
counsel ‘fell below an objective standard of
reasonableness.’ Although we recognize that
common practices may provide evidence of
the objective standard by which we should
measure the performance of individual
attorneys, common practices can never be
determinative lest we freeze our expectations
of counsel at one moment in time, never to
improve or change in response to
developments in, for example, education,
technology, and the law itself.
Having found that Nichols’ attorney’s performance was
deficient, the Court turned to the question of prejudice.
Because Booker does not apply retroactively, to establish
that there was a reasonable probability that the result of his
sentencing would have been different, Nichols had to show
that, but for counsel’s deficient performance, he would have
had a direct appeal pending when Booker was decided. While
the Court recognized that it would be difficult for many
defendants to establish this, in Nichols’ case, his
codefendant’s Sixth Amendment challenge to his sentence
was still pending on direct review when Booker was decided,
and, therefore, his codefendant’s case was remanded for
reconsideration in light of Booker.
Although the specific issues surrounding the Federal
Sentencing Guidelines are not pertinent to Kentucky state
court proceedings, the Sixth Circuit’s analysis of Nichols’
ineffective assistance of counsel claim is particularly
instructive, especially as to the issue of deficient
performance. The Court’s recognition that Nichols’ attorney’s
performance “fell below an objective standard of
reasonableness” even though his conduct was the common
practice among many attorneys has significant implications
for courts’ future treatment of ineffectiveness claims.
Vasquez v. Jones,
— F.3d ——, 2007 WL 2176985 (C.A.6 (Mich.))
Before Rogers and Cook, Circuit Judges, and Gwin, District
Judge
The state court’s holding that the exclusion of a witness’s
prior convictions, offered as impeachment, did not violate
the Confrontation Clause was an unreasonable application
of Supreme Court precedent.
Emilio Vasquez was convicted in connection with a shootout
in which an innocent bystander was killed by a 9-millimeter
handgun. Vasquez claimed that he shot a rifle, not a handgun,
in self-defense. Demond Brown testified at the preliminary
hearing that he saw Vasquez fire a handgun. Brown could
not be located to testify at trial, but the court admitted his
preliminary hearing testimony at Vasquez’s trial. Defense
counsel objected to the admission of the prior testimony,
and attempted to admit evidence that Brown had been
offered a deal by the prosecution to testify at the preliminary
hearing and that Brown had a criminal record. Only the
issue of the exclusion of Brown’s prior convictions was
preserved for federal habeas review.
Because the state court had found that any Confrontation
Clause error was harmless but never decided whether there
was any error, the Sixth Circuit applied “modified AEDPA
deference.” “Under this standard, the court conducts a
‘careful’ and ‘independent’ review of the record and
applicable law, but cannot reverse ‘unless the state court’s
decision is contrary to or an unreasonable application of
federal law.’”
The Court held that the state court’s rejection of Vasquez’s
Confrontation Clause claim was an unreasonable application
of Supreme Court precedent, particularly Davis v. Alaska,
415 U.S. 308 (1974). Davis held that the state court violated
the defendant’s right to confrontation by preventing him
from impeaching a witness with his prior criminal record.
The Sixth Circuit rejected the state’s contention that “’[t]he
Supreme Court has never held that cross-examination with
regard to credibility, as opposed to bias, is constitutionally
protected,’” finding that the cases “draw[] no meaningful
distinction between the constitutional status of crossexamination
as to bias and that of cross-examination as to
credibility or character for truthfulness.”
The Court went on to hold that the Confrontation Clause
violation was not harmless. Recognizing that Fry had
overruled Eddleman (discussed above), the Sixth Circuit
applied the Brecht standard: whether the error had a
substantial and injurious effect on the jury’s verdict. Under
this standard, the error was not harmless because Brown’s
testimony was important to the state’s case, Brown’s
testimony was not cumulative, no physical evidence
corroborated Brown’s testimony, defense counsel could not
be expected to have questioned Brown about his prior
convictions at the preliminary hearing given the voluminous
discovery involved in the case and the different motivations
at preliminary hearings and at trial, and the state’s case was
not particularly strong without Brown’s testimony.
Girts v. Yanai,
— F.3d ——, 2007 WL 2481018, (C.A.6 (Ohio))
Before Martin, Batchelder, and Clay, Circuit Judges
The Prosecutor’s comments on defendant’s failure to testify
or speak to the police violated the defendant’s Fifth
Amendment rights and were sufficiently flagrant to warrant
the reversal of the defendant’s conviction despite defense
counsel’s failure to object.
Robert Girts was convicted by a jury of aggravated murder.
During the state’s closing argument, the prosecutor
commented on the defendant’s failure to testify in his own
defense or talk to the police, and defense counsel failed to
object to such comments. Among the comments were:
Again these are [the defendant’s] words. And
the words that you heard from these folks
supplied by him are unrefuted, and they are
uncontroverted. There has been no evidence
offered to say that these people are incorrect.
None at all.
[W]ith respect to the source [of the cyanide],
the defendant had no less than three
occasions to tell the police that he had
ordered cyanide.
Ladies and gentlemen, we don’t have to tell
you how it was introduced into her system.
We know that it was ingested. And there is
only one person that can tell you how it was
introduced, and that’s the defendant.
On federal habeas review, the district court found that the
prosecutor’s comments were improper and that defense
counsel was ineffective for failing to object, but that Girts
had failed to show prejudice.
The Sixth Circuit first addressed whether the issue was
procedurally defaulted in state court. Because the state
court had reviewed the prosecutor’s comments under a plain
error standard, the Court found that the state had not waived
its procedural default rules. However, the Court found that
Girts overcame the procedural default: “[W]e find that [Girts]
meets the cause and prejudice exception to the procedural
default because his trial counsel was ineffective in failing to
object to the prosecution’s statements during closing
argument.”
Defense counsel’s failure to object to the prosecutor’s
comments was deficient performance because “[t]here was
no conceivable benefit to be derived from failing to challenge
the prosecutor’s improper statements.” The Court found
that the resulting prejudice was “patent:”
If trial counsel had raised an objection, the
trial court would have reprimanded the
prosecutor and issued a prompt curative
instruction to the jury. In turn, the jury would
have heard from the judge that the prosecutor’s
comments called for an improper and
impermissible negative inference for
Petitioner’s exercise of his Fifth Amendment
rights. Certainly, if an objection had been raised
to the prosecutor’s first statement, the
prosecutor would not have been permitted to
continue to overstep with subsequent
comments. Trial counsel’s failure to object
exacerbated the prejudicial effect of the
prosecutor’s statements. We find that there is
a strong likelihood that at least one juror would
have changed his mind if the improper and
prejudicial statements would not have been
made, especially because the prosecutor
presented weak and limited evidence at trial.
In determining whether the prosecutor’s comments were
sufficiently flagrant to warrant a reversal of Girts’ conviction,
the Court “’first consider[ed] whether the prosecutor’s
comments were improper,’ and ‘then consider[ed] and
weigh[ed] four factors:’”
(1) whether the conduct and remarks of the
prosecutor tended to mislead the jury or
prejudice the defendant; (2) whether the
conduct or remarks were isolated or extensive;
(3) whether the remarks were deliberately or
accidentally made; and (4) whether the evidence
against the defendant was strong
As to the first factor, the Court found the comments to be
prejudicial because they went to the central issues in dispute,
namely, how Girts’ wife ingested cyanide, how Girts obtained
cyanide, and what Girts said about his wife’s death. The
general jury instruction on a defendant’s Fifth Amendment
right was not sufficient to cure the prejudice.
Next, the Court found that the comments were not isolated,
but were in fact a “central theme” in the state’s closing
argument, and that the comments were deliberately placed
before the jury. Lastly, the Court found that the strength of
the evidence against Girts was not sufficient to overcome
the prosecutor’s improper comments: “Given the facts in
this case, there is a strong likelihood that the prosecutor
strategically made the prejudicial statements at the end of
the trial to focus the jury’s attention on [Girts’] silence, and
away from the limited evidence presented at trial.”
Justice Batchelder, in dissent, disagreed with the majority’s
application of the four factors, especially the strength of the
evidence against Girts.
Ferensic v. Birkett,
— F.3d ——, 2007 WL 2471276, (C.A.6 (Mich.))
Before Clay, Gilman, and McKeague, Circuit Judges
Robert Ferensic was convicted of armed robbery, home
invasion, and possession of a firearm during the commission
of a felony. The evidence against Ferensic consisted solely
of eyewitness identifications by the two victims. At trial, the
defense was prevented from presenting two key witnesses,
Dr. Harvey Shulman and Danny St. John. Dr. Shulman was
an expert on eyewitness identification. The court excluded
his testimony because defense counsel failed to comply with
a pretrial discovery order which ordered counsel to provide
the prosecutor with a copy of Dr. Shulman’s report at least
two months before trial. Instead, the report was provided
eleven days before trial.
St. John had witnessed the robbers enter the victims’ home
and was prepared to undermine the victims’ description of
the robber offered at trial and to testify that he had never
seen the defendant before. The court excluded his testimony
because he was not present in the courtroom at the end of
the defendant’s case. The trial had proceeded faster than
defense counsel anticipated, and he had instructed St. John
to arrive later in the day. The court refused to adjourn to
allow time for St. John to arrive.
The state court had held that the exclusion of Dr. Shulman’s
testimony, a “concededly severe sanction,” did not prejudice
Ferensic because defense counsel was able to effectively
challenge inconsistencies in the victims’ identifications
through his cross-examination. As to St. John’s testimony,
the state court found no prejudice is its exclusion because
“[t]he purported testimony was not especially strong, . . .
and inconsistency inherent in the victims’ identification was
otherwise shown.”
In reviewing Ferensic’s “right to present a defense” claim,
the Court must determine whether the exclusion of evidence
was “’arbitrary’ or ‘disproportionate to the purpose[] [it is]
designed to serve.’” “[T]he exclusion of a defendant’s
evidence should be reserved for only those circumstances
where ‘a less severe penalty ‘would perpetuate rather than
limit the prejudice to the State and the harm to the adversary
process.”” The Sixth Circuit found that the state court had
acted contrary to Supreme Court precedent by failing to
apply this proportionality-based analysis. Instead, the state
court had applied a traditional prejudice-based analysis.
Under the correct standard, the Court found the trial court’s
exclusion of Dr. Shulman’s testimony to be arbitrary and
disproportionate:
Such disregard for the substantial rights of
one party in the absence of any prejudice to
the other raises an inference of arbitrariness.
(citations omitted). It is certainly proof of
disproportionality, especially in light of the
absence of harm to the prosecution [the
prosecutor did not wish to consult a rebuttal
expert and knew the identity of the defense’s
expert long before trial], the lack of willfulness
on the part of Ferensic’s counsel in violating
the discovery order (he turned over Dr.
Shulman’s report as soon as he received it 11
days before trial), and the lack of any delay
caused by counsel’s misstep.
***
The problem was exacerbated by the trial
court’s refusal to instruct the jury that the
two defense witnesses in question were not
permitted to testify. When defense counsel
failed to present either witness as promised
in his opening statement, the jury might have
concluded that the witnesses were unable or
unwilling to testify as expected and that
defense counsel could not live up to the
claims that he made in his opening statement.
As for the exclusion of St. John’s testimony, the Court found
that the state court had failed to apply the correct standard:
a broad, totality of the circumstances analysis. Instead, the
state court rested its decision on its determination that
Ferensic was not prejudiced by the exclusion.
Turning to the totality of the circumstances analysis, the
Court noted that the sole reason for the exclusion of St.
John’s testimony was that defense counsel had instructed
him to arrive at the courthouse at 11:00 a.m., but defense
counsel’s prior witness concluded his testimony at 10:35
a.m. The trial court refused to grant the half-hour
adjournment. “Granting Ferensic’s motion would likely not
have delayed the proceedings by more than half an hour.
Even a longer delay would have been justifiable in light of
the fact that, as Ferensic notes in his brief, ‘the trial judge
had scheduled three days for trial, and the case was
proceeding to closing argument in less than a day and a
half.’” Given these circumstances, the trial court’s refusal to
grant an adjournment was an abuse of discretion.
In determining that the exclusion of St. John and Dr.
Shulman’s testimony was not harmless, the Court emphasized
the cumulative effect of their testimony. Additionally, the
Court pointed to the fact that the jury had questions about
the identifications:
[T]he jury sent a note to the trial judge stating
that “[w]e would like to see the police report,”
and asked “[w]hat are our options if we don’t
totally agree on a verdict?’ The ‘police
report,” of course, contained the police sketch
as part of Ferensic’s larger file. Thus the jury’s
own words imply not only that it had doubts
about the strength of the case against
Ferensic, but also that those doubts related
at least in part to the contents of his police
file. Although the jury did not explicitly
question the “sufficiency” of the sketchbased
identification vis-à-vis Ferensic’s guilt,
its note, especially when considered in the
context of the erroneously excluded testimony
from Dr. Shulman and St. John, precludes us
from saying “with fair assurance . . . that the
judgment was not substantially swayed by
the error.” (citations omitted) We wish to
emphasize just how significant the jury’s note
is to our analysis, because it distinguishes
the present case from many others in which
the erroneous exclusion of an expert witness
on eyewitness identification might well be
harmless.
Having granted Ferensic relief based on his “right to present
a defense” claim, the Court did not address his ineffective
assistance of counsel claim, which was based on defense
counsel’s failure to provide Dr. Shulman’s report to the
prosecutor by the deadline and failure to ensure that St.
John was at the courtroom ready to testify in time.
Justice McKeague, in dissent, would hold that the state
court’s decision was not contrary to nor an unreasonable
application of federal law. McKeague would reach the
ineffectiveness claim and hold that the state court was not
unreasonable in finding that Ferensic was not prejudiced by
the exclusion of Dr. Shulman and St. John’s testimony.
McKeague also responded to the majority’s reliance on the
jury’s note in determining whether any error was harmless:
I do not agree with the majority that the note
the jury sent out during deliberations asking
to see the police report indicates that the jury
“had doubts about the strength of the case
against Ferensic.” Although, as the majority
observes, the police report contained the
artist’s sketch, it contained other information
as well, and the record contains no indication
that the jury was interested in the sketch
particularly. In any case, the trial court refused
to provide the jury with the report, as it had
not been entered into evidence, and after
further deliberations, the jury found Ferensic
guilty.
Varner v. Stovall,
— F.3d ——, 2007 WL 2593533, (C.A.6 (Mich.))
Before Gibbons and Sutton, Circuit Judges, and Beckwith,
Chief District Judge
Admission of the defendant’s prayers that she had recorded
in her journal confessing that she tried to kill her boyfriend
did not violate the Religion Clauses of the First and
Fourteenth Amendments. Court’s exclusion of evidence of
Battered Women’s Syndrome did not violate Sixth and
Fourteenth Amendment right to present a defense.
Janniss Varner was convicted of assault with intent to commit
murder after she hired someone to shoot her abusive
boyfriend. At trial, the prosecutor introduced excerpts from
Varner’s journal where she admitted trying to kill her boyfriend
and identifying the hired gunman. The journal entries were
often addressed “Dear God,” contained prayers of
supplication and thanks, and expressed her disillusionment
with organized religion and church services. The trial court
excluded expert testimony on Battered Women’s Syndrome
and refused to instruct the jury on provocation, reasoning
that self-defense and provocation defenses are not available
in cases involving a hired hit man.
In the Sixth Circuit, Varner first argued that the admission of
her journal entries violated the Religion Clauses:
[S]he makes the following four-step argument.
Step one: Michigan has created an evidentiary
privilege for religious communications. Step
two: the privilege applies only to religions that
encourage their members to communicate with
God through an intermediary. Step three: this
limitation discriminates among religions
because it disfavors belief systems in which
individuals communicate directly with God.
Step four: the solution to this First Amendment
problem is not to strike the privilege (which
would not benefit Varner) but to extend it to
all religions, including those that do not use
intermediaries, and thus to extend the privilege
to any journal entry that might be construed
as a prayer to God.
The Sixth Circuit held that the admission of Varner’s journal
entries did not violate the Religion Clauses because, “the
clergy-penitent privilege was never designed to apply to
private journal entries, and the confinement of the privilege
to its historic purposes does not offend . . . [the] requirements
of the Religion Clause of the First Amendment.” The Court
analogized the clergy-penitent privilege to the lawyer-client
privilege and the doctor-patient privilege, noting that all three
were intended to eliminate barriers to full disclosure in each
setting.
The privilege requires the communication to
be directed to a member of the clergy – just as
the other privileges require the
communication to be directed to an attorney
or doctor – because it is the clergy who may
be subpoenaed to testify against the
individual. The same possibility does not
exist with private writings to God, who may
be petitioned but never subpoenaed.
The confinement of the privilege to its traditional function
does not favor some religions over others, because the
privilege does not protect anyone’s journal entries, whether
addressed to God or not. Additionally, the admission of the
entries does not restrict Varner’s ability to practice her faith,
because her journal entries were not the only way she could
communicate directly with God.
The Court went on to hold that the state court’s exclusion of
expert testimony on Battered Women’s Syndrome did not
violate Varner’s Sixth and Fourteenth Amendment right to
present a defense. The state courts had determined that in
cases involving a hired gunman, the evidence would not
support a defendant’s belief that she was “in imminent danger
or that there is a threat of serious bodily harm.” The Sixth
Circuit stated, “Much as we sympathize with Varner’s plight,
we must conclude that the confinement of self-defense
instructions to cases of ‘imminent danger’ does not
unreasonably apply Supreme Court precedent [on the right
to present a defense], and neither does the state courts’
conclusion that a scheme to hire a contract killer does not
involve such an imminent danger.”
Likewise, Varner was not entitled to an instruction on
provocation. “Whether it is a question of self-defense or a
question of provocation, Varner fails to explain why an
individual who faces a non-imminent threat is not just as
capable of calling the authorities as of hiring a contract killer.”
KENTUCKY CASE REVIEW
By Erin Hoffman Yang, Appeals Branch
B.B. v. Commonwealth
Rendered June 21, 2007
226 S.W.3d 47 (Ky. 2007)
Reversing
Opinion by J. Schroeder
B.B. was adjudicated guilty of first degree sodomy based on
the testimony and hearsay statements of C.Y., the four year
old complaining witness.
The trial court abused it discretion by finding C.Y. competent
to testify. Based on C.Y.’s performance at the competency
hearing, the trial court should have found her incompetent
under KRE 601(b)(4). C.Y. failed to demonstrate any
understanding whatsoever of the obligation of a witness to
tell the truth, or the consequences of lying. C.Y. gave
nonsensical and conflicting testimony at the adjudication
hearing and generally agreed with anything that was
suggested. The Court warned judges against the temptation
“to let pity for small children who may have been victimized ...
overcome their duty to enforce the rules of evidence.....”
C.Y.’s incompetence extended to hearsay. Souder v.
Commonwealth, 719 S.W.2d 730 (Ky.1986) and Edwards v.
Commonwealth, 833 S.W.2d 842 (Ky.1992) are overruled to
the extent they hold testimonial incompetence is not a
consideration in determining the admissibility of out-of-court
statements. Over Appellant’s objection, the trial court admitted
C.Y.’s statements to an emergency room nurse under KRE
803(4), the hearsay exception for statements made for the
purpose of medical treatment or diagnosis.
The Court held that C.Y.’s incompetence would extend to the
hearsay. Courts should be particularly cautious about
admitting into evidence the out-of-court statements to a
physician of any child who is not competent to testify in
person A child whose understanding is not sufficient to allow
him to testify at trial may also fail to understand that the
recovery of his health is dependent upon the truth of his
statements to a doctor.
Brown v. Commonwealth
Rendered June 21, 2007
226 S.W.3d 74 (Ky. 2007)
Reversing
Opinion by J. Noble, J. Scott and McAnulty Dissenting
Brown’s trial progressed normally until defense counsel
informed the court that after several discussions with his
client, he had concluded that a conflict had arisen which he
wanted to address to the court outside the presence of the
prosecution. The court allowed the ex parte discussion, during
which defense counsel informed the court that the Appellant
wanted to present through his testimony a theory that was
not consistent with counsel’s investigation of the case.
Counsel told the court that his client wanted to testify, and
had the right to do so, but that counsel felt his ethical
limitations created a conflict with the client. He stated that he
did not believe he could deliver his planned opening statement
or elicit the testimony Appellant now wanted to give. The trial
court and defense counsel then took a break to consult the
Rules of Professional Conduct, specifically Rule 3.3 and its
commentary.
Brown was brought to the bench, and the trial court conducted
a lengthy and thorough colloquy with him, setting forth the
situation and presenting options, and directing him to consult
further with his attorney before making a final decision on
how he was going to proceed. The trial court told Brown that
he could give a narrative statement and closing argument.
Defense counsel offered to cross-examine the final two
prosecution witnesses and informed the court that he would
then be stepping out of the courtroom. Defense counsel
indicated that he had told Brown that it might make things
worse if he remained seated at counsel table while Brown
proceeded. Specific statements as to the nature of the alleged
perjury were never put on the record.
The trial court erred by allowing trial counsel to completely
abandon defendant during his narrative statement, crossexamination
and closing argument in the guilt phase of the
trial. Allowing counsel to reappear for the penalty phase
compounded the appearance of irregularity. Under Rule 3.3, a
lawyer is prohibited from offering evidence known to be false,
may refuse to offer evidence that she reasonably believes to
be false, and shall inform the tribunal of all material facts known
to her so that the tribunal can make an informed decision
whether the facts are adverse. The plain language of this rule
contemplates that a lawyer will not advance false testimony of
any witness, and that she will inform the court if such testimony
is imminent and what facts support that belief. However, Rule
1.6 creates a duty of confidentiality that prohibits a lawyer
from revealing information related to the representation of a
client. Moreover, the client has a right to testify in his own
defense and a right to counsel. This creates an apparent conflict
when an attorney knows that a client intends to offer false
testimony.
In this case, given that no one other than counsel and Appellant
knew the contested area of testimony allowing Brown to testify
wholly on his own and without benefit of counsel’s objections
on cross examination (which would have been directed at
evidentiary rules rather than content) unconstitutionally
deprived of him of his right to assistance of counsel. This
was compounded by requiring him to make his own closing
argument and allowing counsel to return to conduct the
sentencing phase.
The dissent argued Brown’s “limited forfeiture of counsel”
was appropriate under the circumstances The right to
counsel does not include a “right to have a lawyer who will
cooperate with planned perjury.” When a defendant wishes
to resort to perjury or to produce false evidence, one
consequence is the risk of withdrawal of counsel. A lawyer
who cooperates with a defendant’s perjurious testimony would
be at risk of prosecution for suborning perjury, and disciplinary
proceedings, including suspension or disbarment.
Emerson v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403391
Affirming in part, Reversing in part
Opinion by J. Noble
Emerson and his mother were convicted of murder, robbery
and tampering with physical evidence in the death of his
stepfather. Both Emerson and the Commonwealth presented
evidence at trial that he agreed to the murder because he
believed his stepfather was abusing his mother.
It is error for the Commonwealth to refer or comment on
parole in the penalty phase of a death penalty trial. During
the penalty phase closing arguments, the prosecutor stated:
“[n]ow let’s talk about if you set the penalty at life without the
possibility of parole for 25 years or any penalty less than that,
he has the opportunity to be released from prison when he
would be younger or right about the same age as Gerald
Monroe.” Defense counsel objected and moved for a mistrial,
arguing that the prosecutor in effect told the jury that parole
eligibility was 20 years because she revealed the opportunity
for Emerson to be released while he was still younger than
Monroe. In effect, the prosecutor told jurors that if Emerson
received life without the possibility of parole he could be
released in 20 years.
The Court stated that although parole eligibility information
is fully admissible in a truth-in-sentencing hearing, it has no
place in a death penalty hearing. It is well-established that
“under no circumstances should parole eligibility enter into
death penalty deliberations.” Id.
Emerson was entitled to jury instructions on moral
justification and extenuation as mitigating factors. Failure
to instruct on these factors was error under KRS 532.025 (2)
(b) (4). Under the statute, as long as there is “some evidence”
to support a mitigating factor, it must be included. There was
sufficient evidence presented by the defense and the
Commonwealth that Emerson believed his mother was being
abused by his stepfather. The trial court abused its discretion
on omitting the instructions, although Emerson was spared
the death penalty, he might have received a lesser sentence if
the jury considered extenuation.
Coulthard v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403396
Affirming
Opinion by J. Scott
Coulthard was convicted of first degree manslaughter and
tampering with physical evidence after shooting his 18 year
old victim in the neck during a confrontation.
The was no error based on the behavior of the victim’s family
during the trial. The Court rejected Coulthard’s claim that he
was prejudiced when family members wore t-shirts and
displayed license plates supporting the victim outside the
courtroom. Coulthard had to prove that this propaganda was
viewed by the jury inside the courtroom to show prejudice.
Also, the trial court properly denied a mistrial based on the
family’s emotional outbursts at the trial. An admonition to
jurors to disregard an emotional display would have been
adequate to cure any possible prejudice that may have
resulted. Although an admonition was warranted in this case,
the defense did not ask for one.
The Commonwealth did not violate Coulthard’s constitutional
right to be free of warrantless searches by introducing
evidence he refused to consent to fingerprint sampling.
Coulthard took the stand and exposed himself to crossexamination.
While it is generally unconstitutional to penalize
a defendant for exercising his right to be free of warrantless
searches, the Court held that his refusal to submit to fingerprint
sampling was relevant for the legitimate purpose of rebuttal
and impeachment of the self defense claim presented at trial.
Debruler v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403438
Affirming
Memorandum Opinion of the Court
Debruler was charged with kidnapping and robbery. He
allegedly grabbed a ten year old and carried her to the backyard
of a vacant house before she managed to escape. He was
also charged with a robbery less than one mile away from the
scene of the attempted abduction. Seven hours after the
incidents two K9 unit dogs were brought to the scene of the
alleged abduction. Both dogs were able to track Debruler’s
scent to the back of the vacant house.
Canine scent tracking is not scientific evidence subject to
Daubert. Testimony from a trained dog handler concerning
the use of canine scent concerned the results of an
investigative technique, not a scientific procedure. The officers
did not testify as to any technique, theory, or methodology.
Rather, the testimony was limited to personal observations of
the dog’s actions and their interpretations of the tracking
based on their experience and training. While Daubert may
apply to technical or specialized knowledge as well, canine
scent tracking is not amenable to peer review and testing.
Vaughn v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403353
Reversing
Opinion by J. Scott, Dissent by Cunningham and Minton, JJ.
David Vaughn appealed from a Court of Appeals decision
upholding his conviction for first degree attempted sodomy.
He was not allowed to present testimony the complaining
witness, his stepdaughter, had a reputation for untruthfulness
at her school, holding that her school was not a community.
The Court of Appeals upheld the trial court’s decision, holding
that “[appellant] failed to lay a sufficient foundation to establish
that the school from which the teacher drew her opinion of
his stepdaughter’s reputation was sufficiently large, with
adequate contact with the child, to provide a trustworthy
estimation of B.D.’s reputation in the community.” The only
issue on discretionary review was whether a grade school
can satisfy the community requirement in the version of KRE
608 in effect prior to July 2003.
The law of evidence includes a child’s school within the
definition of community. Vaughn should have been permitted
to offer evidence from two of his stepdaughter’s teachers
that the girl had a reputation for untruthfulness. A school is
a substantial group that children are a part, and creates
interpersonal relationships where people can develop opinions
about others. Other than a child’s family, it is likely that school
is the largest community that a child belongs to.
The dissenters agreed that school could be a community for
reputation purposes but believed excluding the testimony of
the alleged victim’s untruthfulness was harmless error.
Commonwealth v. Ronnie Lee Coker
Rendered 9/20/07, To Be Published
2007 WL 2736222
Reversing
Opinion by J. Minton
Ronnie Lee Coker was convicted of extortion and being a
persistent felony offender in the second degree. A divided
panel of the Court of Appeals reversed Coker’s conviction on
appeal, holding the trial court erred by denying Coker’s Batson
challenge to an African American veniremember against whom
the Commonwealth had exercised one of its peremptory
challenges.
The Court of Appeals did not show proper deference to the
wide latitude given trial courts in ruling on Batson
challenges. In response to questioning by defense counsel,
the veniremember in question identified “due process” as a
right protected under the Bill of Rights. When asked what
verdict should be returned if the Commonwealth failed to
prove the charges beyond a reasonable doubt, he answered,
“not guilty.” Defense counsel argued that the prosecution
expressed surprise that there were two African Americans on
the panel and had a history of Batson violations.
Nonetheless, the trial court accepted the Commonwealth’s
assertion that he had stricken the panel member because he
had “aligned himself” with the defense by speaking up when
questioned about constitutional issues. The Supreme Court
agreed, reversing the Court of Appeals and holding that the
trial court was entitled to accept the Commonwealth’s
reasoning as race-neutral. The majority noted that on review,
the Court’s role “is not to determine whether we find a proffered
reason to be a mere pretext for discrimination; our job is to
determine whether the trial court’s acceptance of the validity
of the race-neutral reason is clearly erroneous.”
Rocky Gray v. Commonwealth
Rendered 9/20/07, To Be Published
2007 WL 2736217
Affirming
Opinion by J. Scott
Rocky Gray was pulled over for driving erratically in 2005. He
consented to a search and the officer discovered marijuana,
various items of drug paraphernalia including scales,
individually wrapped bundles of methamphetamine, a pistol,
and $1,527 in cash. Rocky Gray was convicted of several
drug charges and being a persistent felony offender in the
second degree and sentenced to a total of 58 years. The trial
also forfeited the cash found during the search.
The forfeiture of the money did not violate Kentucky’s
forfeiture law or Gray’s due process rights. Gray argued that
the cash was improperly forfeited because the money was not
shown to have been exchanged in the sale of drugs.
Kentucky’s forfeiture statute, KRS 218A.410, permits the
forfeiture of “[e]verything of value furnished ... in exchange
for a controlled substance in violation of this chapter, all
proceeds ... traceable to the exchange, and all moneys ... used,
or intended to be used to facilitate any violation of this
chapter.” The statute further provides that it shall be a
rebuttable presumption “that all moneys, coin, and currency
found in close proximity to controlled substances, to drug
manufacturing or distributing paraphernalia ... are presumed
to be forfeitable under this paragraph.”
The Court held that the large amount of cash found in Gray’s
van coupled with the large amount of drugs led to a reasonable
conclusion that Gray had used, or intended to use the cash in
an illegal transaction. Thus, Gray had the burden to rebut the
presumption that the money should be forfeited and he failed
to do so.
The trial court did not err in failing to order a competency
hearing prior to sentencing. Immediately before sentencing,
trial counsel discovered that Gray was being treated for
psychotic behavior and asked the court to grant a new trial or
hold sentencing in abeyance pending a competency hearing.
The Court held the request was properly denied. Gary had
been able to participate in his defense and the case had been
ongoing for one year with no sign of incompetency from Gray.
B.B. v. Commonwealth
Rendered June 21, 2007
226 S.W.3d 47 (Ky. 2007)
Reversing
Opinion by J. Schroeder
B.B. was adjudicated guilty of first degree sodomy based on
the testimony and hearsay statements of C.Y., the four year
old complaining witness.
The trial court abused it discretion by finding C.Y. competent
to testify. Based on C.Y.’s performance at the competency
hearing, the trial court should have found her incompetent
under KRE 601(b)(4). C.Y. failed to demonstrate any
understanding whatsoever of the obligation of a witness to
tell the truth, or the consequences of lying. C.Y. gave
nonsensical and conflicting testimony at the adjudication
hearing and generally agreed with anything that was
suggested. The Court warned judges against the temptation
“to let pity for small children who may have been victimized ...
overcome their duty to enforce the rules of evidence.....”
C.Y.’s incompetence extended to hearsay. Souder v.
Commonwealth, 719 S.W.2d 730 (Ky.1986) and Edwards v.
Commonwealth, 833 S.W.2d 842 (Ky.1992) are overruled to
the extent they hold testimonial incompetence is not a
consideration in determining the admissibility of out-of-court
statements. Over Appellant’s objection, the trial court admitted
C.Y.’s statements to an emergency room nurse under KRE
803(4), the hearsay exception for statements made for the
purpose of medical treatment or diagnosis.
The Court held that C.Y.’s incompetence would extend to the
hearsay. Courts should be particularly cautious about
admitting into evidence the out-of-court statements to a
physician of any child who is not competent to testify in
person A child whose understanding is not sufficient to allow
him to testify at trial may also fail to understand that the
recovery of his health is dependent upon the truth of his
statements to a doctor.
Brown v. Commonwealth
Rendered June 21, 2007
226 S.W.3d 74 (Ky. 2007)
Reversing
Opinion by J. Noble, J. Scott and McAnulty Dissenting
Brown’s trial progressed normally until defense counsel
informed the court that after several discussions with his
client, he had concluded that a conflict had arisen which he
wanted to address to the court outside the presence of the
prosecution. The court allowed the ex parte discussion, during
which defense counsel informed the court that the Appellant
wanted to present through his testimony a theory that was
not consistent with counsel’s investigation of the case.
Counsel told the court that his client wanted to testify, and
had the right to do so, but that counsel felt his ethical
limitations created a conflict with the client. He stated that he
did not believe he could deliver his planned opening statement
or elicit the testimony Appellant now wanted to give. The trial
court and defense counsel then took a break to consult the
Rules of Professional Conduct, specifically Rule 3.3 and its
commentary.
Brown was brought to the bench, and the trial court conducted
a lengthy and thorough colloquy with him, setting forth the
situation and presenting options, and directing him to consult
further with his attorney before making a final decision on
how he was going to proceed. The trial court told Brown that
he could give a narrative statement and closing argument.
Defense counsel offered to cross-examine the final two
prosecution witnesses and informed the court that he would
then be stepping out of the courtroom. Defense counsel
indicated that he had told Brown that it might make things
worse if he remained seated at counsel table while Brown
proceeded. Specific statements as to the nature of the alleged
perjury were never put on the record.
The trial court erred by allowing trial counsel to completely
abandon defendant during his narrative statement, crossexamination
and closing argument in the guilt phase of the
trial. Allowing counsel to reappear for the penalty phase
compounded the appearance of irregularity. Under Rule 3.3, a
lawyer is prohibited from offering evidence known to be false,
may refuse to offer evidence that she reasonably believes to
be false, and shall inform the tribunal of all material facts known
to her so that the tribunal can make an informed decision
whether the facts are adverse. The plain language of this rule
contemplates that a lawyer will not advance false testimony of
any witness, and that she will inform the court if such testimony
is imminent and what facts support that belief. However, Rule
1.6 creates a duty of confidentiality that prohibits a lawyer
from revealing information related to the representation of a
client. Moreover, the client has a right to testify in his own
defense and a right to counsel. This creates an apparent conflict
when an attorney knows that a client intends to offer false
testimony.
In this case, given that no one other than counsel and Appellant
knew the contested area of testimony allowing Brown to testify
wholly on his own and without benefit of counsel’s objections
on cross examination (which would have been directed at
evidentiary rules rather than content) unconstitutionally
deprived of him of his right to assistance of counsel. This
was compounded by requiring him to make his own closing
argument and allowing counsel to return to conduct the
sentencing phase.
The dissent argued Brown’s “limited forfeiture of counsel”
was appropriate under the circumstances The right to
counsel does not include a “right to have a lawyer who will
cooperate with planned perjury.” When a defendant wishes
to resort to perjury or to produce false evidence, one
consequence is the risk of withdrawal of counsel. A lawyer
who cooperates with a defendant’s perjurious testimony would
be at risk of prosecution for suborning perjury, and disciplinary
proceedings, including suspension or disbarment.
Emerson v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403391
Affirming in part, Reversing in part
Opinion by J. Noble
Emerson and his mother were convicted of murder, robbery
and tampering with physical evidence in the death of his
stepfather. Both Emerson and the Commonwealth presented
evidence at trial that he agreed to the murder because he
believed his stepfather was abusing his mother.
It is error for the Commonwealth to refer or comment on
parole in the penalty phase of a death penalty trial. During
the penalty phase closing arguments, the prosecutor stated:
“[n]ow let’s talk about if you set the penalty at life without the
possibility of parole for 25 years or any penalty less than that,
he has the opportunity to be released from prison when he
would be younger or right about the same age as Gerald
Monroe.” Defense counsel objected and moved for a mistrial,
arguing that the prosecutor in effect told the jury that parole
eligibility was 20 years because she revealed the opportunity
for Emerson to be released while he was still younger than
Monroe. In effect, the prosecutor told jurors that if Emerson
received life without the possibility of parole he could be
released in 20 years.
The Court stated that although parole eligibility information
is fully admissible in a truth-in-sentencing hearing, it has no
place in a death penalty hearing. It is well-established that
“under no circumstances should parole eligibility enter into
death penalty deliberations.” Id.
Emerson was entitled to jury instructions on moral
justification and extenuation as mitigating factors. Failure
to instruct on these factors was error under KRS 532.025 (2)
(b) (4). Under the statute, as long as there is “some evidence”
to support a mitigating factor, it must be included. There was
sufficient evidence presented by the defense and the
Commonwealth that Emerson believed his mother was being
abused by his stepfather. The trial court abused its discretion
on omitting the instructions, although Emerson was spared
the death penalty, he might have received a lesser sentence if
the jury considered extenuation.
Coulthard v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403396
Affirming
Opinion by J. Scott
Coulthard was convicted of first degree manslaughter and
tampering with physical evidence after shooting his 18 year
old victim in the neck during a confrontation.
The was no error based on the behavior of the victim’s family
during the trial. The Court rejected Coulthard’s claim that he
was prejudiced when family members wore t-shirts and
displayed license plates supporting the victim outside the
courtroom. Coulthard had to prove that this propaganda was
viewed by the jury inside the courtroom to show prejudice.
Also, the trial court properly denied a mistrial based on the
family’s emotional outbursts at the trial. An admonition to
jurors to disregard an emotional display would have been
adequate to cure any possible prejudice that may have
resulted. Although an admonition was warranted in this case,
the defense did not ask for one.
The Commonwealth did not violate Coulthard’s constitutional
right to be free of warrantless searches by introducing
evidence he refused to consent to fingerprint sampling.
Coulthard took the stand and exposed himself to crossexamination.
While it is generally unconstitutional to penalize
a defendant for exercising his right to be free of warrantless
searches, the Court held that his refusal to submit to fingerprint
sampling was relevant for the legitimate purpose of rebuttal
and impeachment of the self defense claim presented at trial.
Debruler v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403438
Affirming
Memorandum Opinion of the Court
Debruler was charged with kidnapping and robbery. He
allegedly grabbed a ten year old and carried her to the backyard
of a vacant house before she managed to escape. He was
also charged with a robbery less than one mile away from the
scene of the attempted abduction. Seven hours after the
incidents two K9 unit dogs were brought to the scene of the
alleged abduction. Both dogs were able to track Debruler’s
scent to the back of the vacant house.
Canine scent tracking is not scientific evidence subject to
Daubert. Testimony from a trained dog handler concerning
the use of canine scent concerned the results of an
investigative technique, not a scientific procedure. The officers
did not testify as to any technique, theory, or methodology.
Rather, the testimony was limited to personal observations of
the dog’s actions and their interpretations of the tracking
based on their experience and training. While Daubert may
apply to technical or specialized knowledge as well, canine
scent tracking is not amenable to peer review and testing.
Vaughn v. Commonwealth
Rendered August 23, 2007, To Be Published
2007 WL 2403353
Reversing
Opinion by J. Scott, Dissent by Cunningham and Minton, JJ.
David Vaughn appealed from a Court of Appeals decision
upholding his conviction for first degree attempted sodomy.
He was not allowed to present testimony the complaining
witness, his stepdaughter, had a reputation for untruthfulness
at her school, holding that her school was not a community.
The Court of Appeals upheld the trial court’s decision, holding
that “[appellant] failed to lay a sufficient foundation to establish
that the school from which the teacher drew her opinion of
his stepdaughter’s reputation was sufficiently large, with
adequate contact with the child, to provide a trustworthy
estimation of B.D.’s reputation in the community.” The only
issue on discretionary review was whether a grade school
can satisfy the community requirement in the version of KRE
608 in effect prior to July 2003.
The law of evidence includes a child’s school within the
definition of community. Vaughn should have been permitted
to offer evidence from two of his stepdaughter’s teachers
that the girl had a reputation for untruthfulness. A school is
a substantial group that children are a part, and creates
interpersonal relationships where people can develop opinions
about others. Other than a child’s family, it is likely that school
is the largest community that a child belongs to.
The dissenters agreed that school could be a community for
reputation purposes but believed excluding the testimony of
the alleged victim’s untruthfulness was harmless error.
Commonwealth v. Ronnie Lee Coker
Rendered 9/20/07, To Be Published
2007 WL 2736222
Reversing
Opinion by J. Minton
Ronnie Lee Coker was convicted of extortion and being a
persistent felony offender in the second degree. A divided
panel of the Court of Appeals reversed Coker’s conviction on
appeal, holding the trial court erred by denying Coker’s Batson
challenge to an African American veniremember against whom
the Commonwealth had exercised one of its peremptory
challenges.
The Court of Appeals did not show proper deference to the
wide latitude given trial courts in ruling on Batson
challenges. In response to questioning by defense counsel,
the veniremember in question identified “due process” as a
right protected under the Bill of Rights. When asked what
verdict should be returned if the Commonwealth failed to
prove the charges beyond a reasonable doubt, he answered,
“not guilty.” Defense counsel argued that the prosecution
expressed surprise that there were two African Americans on
the panel and had a history of Batson violations.
Nonetheless, the trial court accepted the Commonwealth’s
assertion that he had stricken the panel member because he
had “aligned himself” with the defense by speaking up when
questioned about constitutional issues. The Supreme Court
agreed, reversing the Court of Appeals and holding that the
trial court was entitled to accept the Commonwealth’s
reasoning as race-neutral. The majority noted that on review,
the Court’s role “is not to determine whether we find a proffered
reason to be a mere pretext for discrimination; our job is to
determine whether the trial court’s acceptance of the validity
of the race-neutral reason is clearly erroneous.”
Rocky Gray v. Commonwealth
Rendered 9/20/07, To Be Published
2007 WL 2736217
Affirming
Opinion by J. Scott
Rocky Gray was pulled over for driving erratically in 2005. He
consented to a search and the officer discovered marijuana,
various items of drug paraphernalia including scales,
individually wrapped bundles of methamphetamine, a pistol,
and $1,527 in cash. Rocky Gray was convicted of several
drug charges and being a persistent felony offender in the
second degree and sentenced to a total of 58 years. The trial
also forfeited the cash found during the search.
The forfeiture of the money did not violate Kentucky’s
forfeiture law or Gray’s due process rights. Gray argued that
the cash was improperly forfeited because the money was not
shown to have been exchanged in the sale of drugs.
Kentucky’s forfeiture statute, KRS 218A.410, permits the
forfeiture of “[e]verything of value furnished ... in exchange
for a controlled substance in violation of this chapter, all
proceeds ... traceable to the exchange, and all moneys ... used,
or intended to be used to facilitate any violation of this
chapter.” The statute further provides that it shall be a
rebuttable presumption “that all moneys, coin, and currency
found in close proximity to controlled substances, to drug
manufacturing or distributing paraphernalia ... are presumed
to be forfeitable under this paragraph.”
The Court held that the large amount of cash found in Gray’s
van coupled with the large amount of drugs led to a reasonable
conclusion that Gray had used, or intended to use the cash in
an illegal transaction. Thus, Gray had the burden to rebut the
presumption that the money should be forfeited and he failed
to do so.
The trial court did not err in failing to order a competency
hearing prior to sentencing. Immediately before sentencing,
trial counsel discovered that Gray was being treated for
psychotic behavior and asked the court to grant a new trial or
hold sentencing in abeyance pending a competency hearing.
The Court held the request was properly denied. Gary had
been able to participate in his defense and the case had been
ongoing for one year with no sign of incompetency from Gray.
ANY PLACE WHERE A PERSON SLEEPS:
AN ANALYSIS OF A DISTRICT COURT’S RULING
DECLARING THE SEX OFFENDER RESIDENCY
REQUIREMENTS UNCONSTITUTIONAL
By Samuel N. Potter, Appeals Branch
In the last edition of the Advocate, part one of this article
summarized the changes House Bill Three (HB3) made to the
sex offender residency requirements (SORR). Part two of this
article will examine a case from Kenton District Court that
ruled the new SORR violated the Ex Post Facto Clause of the
Constitutions of the United States and Kentucky. Copies of
the motion and order can be downloaded from the 2007 annual
conference materials from the session on sex offender
registration on DPA’s intranet. If you do not have access to
DPA’s intranet, feel free to contact the author at
sam.potter@ky.gov or 502 564-8006.
The Kenton District Court case involved more than 10
defendants and five defense lawyers, both private and public
defenders. All the defendants became sex offender registrants
(registrants) before HB3 took effect. The defendants
challenged the constitutionality of HB3 as applied to them on
multiple grounds: Equal Protection violation; Substantive Due
Process violation; Ex Post Facto violation; and Inalienable
Property Rights violation. The first three grounds involved
both the Kentucky and United States Constitutions, while
the last ground relied solely on the Kentucky Constitution.
The Kenton District Court based its dismissal ruling only on
the Ex Post Facto Clause, though it intimated that the remaining
grounds raised substantive issues that will have to be resolved
in the future. The Court’s observation is sound. The implication
of this statement is significant for criminal defense attorneys.
Ex Post Facto challenges will not succeed in each case. Thus,
it is worth the time and effort to challenge the SORR on multiple
grounds, not knowing which Constitutional provision may
warrant relief in any given situation.
The Court spent about eight pages of its 36 page opinion on
the historical background of the sex offender registration
system (SORS). This included a detailed retelling of the facts
of the crime committed against Megan Kanka in New Jersey.
This horrible incident provided the political motivation to pass
SORS across the nation, which are commonly referred to as
Megan’s Law. The SORS attempted to provide a quick solution
to the problem that communities face of not knowing where
sexual offenders live. Over time, however, the registration
requirements and restrictions have grown more burdensome,
and the punishments for violations have grown more harsh.
The defendants challenged the premises upon which the
SORR are founded. The first premise assumed that many sexual
offenders target unknown
children at a high rate. The
second premise assumed
that sex offenders re-offend
at a high rate after being
released. The Court
examined some scientific
studies that supported the
defendants’ challenges of
these two premises. The
findings are striking and are
worth repeating here.
• Many studies show that sexual abuse most often occurs
in a preexisting relationship. For example, 80% of girls and
60% of boys are abused by someone they know.1
• No more than 10% of child sexual abuse cases involve
strangers to the victim.2
• In 1997, only 7% of child molesters in prison committed
their offense against a stranger.3
• More specifically, 3% of children under 12 were abused
by strangers, and 11% of children 13 to 17 were abused
by strangers.4
The Court stated: “The implication of these and countless
other studies is that laws designed to protect our children, to
be effective, should focus on preventing sex offenders from
harming children whom they know, not fixated on preventing
the rare attacks by strangers. Legislators however, continue
to focus on high profile, emotionally charged cases like that
of Megan Kanka, and craft measures designed to combat the
predator lurking in the bushes.” Opinion, p.10.
A causal connection has not been discovered that links an
increased re-offense rate to the offenders residence near a
school or playground. Of 500 sex offenders who legally lived
close to schools, only one was rearrested, and the arrest did
not involve another sexual assault.5 The Minnesota
Department of Corrections concluded that residency
restrictions were not effective in deterring the offender from
re-offending because only two re-offending acts were
committed on unknown victims in parks, but those parks were
several miles from the re-offenders’ homes.6
Studies refute the premise that sex offenders re-offend at a
high rate.
• After five years, the re-offense rate for child molesters
was 12.7% in a study of 29,000 sex offenders.7
• Only 14% of sex offenders released from prison in 1994 reoffended.
8
• Of child molesters released in 1994, 3% were rearrested for
a sexual assault, 14% were rearrested for a violent offense,
and 39% were rearrested for any offense including parole
violations and traffic offenses. Id.
• Of all prisoners released in 1994, 68% were rearrested for
any offense in three years. Id.
The Court concluded this section by quoting another article:
“Residency restrictions suffer from several practical problems
that call into question their basis, efficacy, and fairness. Their
scientific premise is spurious and only leads to over-inclusive
and ineffective restrictions that will do nothing to stop the
small fraction of sex offenders who will harm unknown children
again.” Opinion, p. 11-12.9 With this background information
providing context, the Kenton District Court proceeded to its
Ex Post Facto analysis.
The Court’s Ex Post Facto analysis consisted of over 20 pages.
“No state shall . . . pass any . . . ex post facto law.” U.S. Const.,
Art. I, §10. “No ex post facto law . . . shall be encacted.” Ky.
Const., §19(1). The Court found no U.S. Supreme Court case
directly on point regarding whether the SORR violates the Ex
Post Facto Clause. However, the case of Smith v. Doe, 538
U.S. 84, 105-106 (2003), upheld the constitutionality of the
SORS, ruling that it “is nonpunitive and its retroactive
application does not violate the Ex Post Facto Clause.”
Opinion, p. 13. Based on Smith v. Doe, the Eighth Circuit has
upheld the constitutionality of SORR. Doe v. Miller, 405 F.3rd
700 (8th Cir. 2005). The Kenton District Court disagreed with
the conclusion of Doe v. Miller because of the plain language
found in Smith v. Doe: “offenders subject to the Alaska statute
are free to move where they wish and to live and work as
other citizens, with no supervision.” Opinion, p.14 (quoting,
Smith v. Doe, 538 U.S. at 101; emphasis mine.)
Determining whether a statute violates the Ex Post Facto
Clause consists of a two step analysis. Step one requires the
court considering the issue to ascertain whether the legislature
intended the statute to impose punishment or establish civil
proceedings. Id. at 92. The inquiry ends if the legislature
intended to impose punishment, and the statute violates the
Ex Post Facto Clause. If the legislature intended a regulatory
scheme that is civil and non-punitive, then the court proceeds
to the second step. Step two has the court determine whether
the purpose or effect of the statutory scheme is so punitive
that it negates the legislature’s intent to deem it civil. Id. Five
factors that are not exhaustive or dispositive serve as useful
guideposts for evaluating step two: 1) has the regulatory
scheme been regarded as punishment in our history and
tradition; 2) does it impose an affirmative restraint or disability;
3) does it promote the traditional aims of punishment, 4) does
it have a rational connection to a non-punitive purpose, and
5) is it excessive with respect to that purpose. Id. at 97 (citing,
Hudson v. United States, 522 U.S. 93, 99 (1997)).
The Court began with step one and asked whether the
legislature expressly or implicitly intended the SORR to impose
a criminal punishment or a civil regulation. “Considerable
deference must be accorded to the intent as the legislature
has stated it.” Opinion, p. 15 (quoting, Smith v. Doe, 538 U.S.
at 93). The Court found that the following facts supported a
finding that legislature intended the SORR to be punishment.
• The title of HB3 was “An act related sex offenses and the
punishment therefore.” (Court’s emphassis.)
• Both the House and the Senate required official cost
estimates from the Department of Corrections and local
governments. The estimates focused on increased costs
due to more people being incarcerated and more probation
and parole officers.
• The sole enforcement procedure the legislature authorized
with the SORR were criminal sanctions of a Class A
misdemeanor for the first offense and a Class D felony for
subsequent offenses.
Based on these facts, the Court believed the legislature
intended the law to be punitive and violated the Ex Post Facto
Clause. Even though this resolved the question, the Court in
an effort to be thorough proceeded to step two.
The Court moved on to step two, which is essentially a
balancing test to see if the punitive purpose and/or effect of
the SORR negates its civil regulation. The five factors listed
above provide guidance, and courts are free to weigh the
factors as they see fit. Factor one examines the historical
tradition of the regulatory scheme, namely residency
restrictions. The defendants argued the SORR are equivalent
with the punishment of banishment. Banishment is
“punishment inflicted on criminals by compelling them to quit
a city, place, or county for a specified period of time, or for
life.” Opinion, p. 19 (quoting, United States v. Ju Toy, 198 U.S.
253, 269-270 (1905). The Court agreed with the defendants’
argument.
Factor two considers whether the SORR imposes an affirmative
duty or restraint. Because the SORR restricts where a registrant
can live, the SORR is inherently an affirmative restraint. This
factor distinguishes the residency restrictions from the
registration system. The Kentucky Supreme Court upheld the
SORS because the mere act of registering did not limit the
activities of the registrant. Hyatt v. Commonwealth, 72 S.W.3d
566, 572 (Ky. 2002). The Court reasoned that unlike “registration
requirements, residency restrictions do in fact impose an
affirmative disability and do place limitations on the activities
of the offender. . . . The punishment imposed by these statutes,
banishment, is not prospective in nature.” Opinion, p. 25.
That the SORR imposes an affirmative restraint on registrants
cannot be denied.
Factor three addresses whether the SORR promotes the
traditional aims of punishment—deterrence and retribution.
Smith v. Doe found that the SORS was not retributive because
it was reasonably related to sex offenders high re-offense
rate, though the U.S. Supreme Court did not cite any data to
support this proposition. Smith v. Doe, 538 U.S. at 102. The
Kenton District Court referred to the studies it cited early to
rebut that proposition and show that sex offenders are less
likely to re-offend than the average person. Further evidence
of the retribution nature of the SORR was the idea that a
registrant could visit “his mother’s home near an elementary
school all day long, each and every day, while school was in
session and he allegedly posed the greatest risk to children –
but he could not spend the night there after school was
dismissed and the children returned to their various homes.”
Opinion, 21 (citing, People v. Leroy, 828 N.E. 2d 769, 793 (Il.
App. 2005(dissent))). The absence of individualized risk
assessment of sex offenders bothered Justice Souter
significantly enough that he concurred in Smith v. Doe and
caused Justice Ginsburg to dissent. Smith v. Doe, 538 U.S. at
108-109; 116-117. The Court concluded that the SORR
promoted retribution, a traditional aim of punishment.
Factors four and five are connected. The issue they seek to
resolve is whether a rational connection exists between the
restriction and its purpose. Factor four inquires whether the
SORR has a rational connection to a non-punitive purpose.
The SORR are designed to protect children from sex offenders.
The Court observed that the “protection, however, is minimal
at best and completely illusory at worst.” Opinion, p. 26.
Registrants can still frequent schools, daycares, and
playgrounds as often as they want without violating the
SORR. The SORR do not prevent a registrant from living with
the prior victim as long as the residence is not close to a
school, daycare, or playground. The Court concluded that
the “residency restrictions appear to be little more than a
political placebo, offering false comfort to pacify the public’s
fear of sex offenders.” Opinion, p. 27. No rational connection
exists between the non-punitive purpose of protecting
children and the SORR.
Factor five addresses whether SORR is excessive with respect
to protecting children. The complete lack of individualized
risk assessment lumps all offenders together without any
consideration of the likelihood that a given person will reoffend.
Justice Souter wrote in his concurring opinion that
the SORS “uses past crimes as the touchstone, probably
sweeping in a significant number of people who pose no real
threat to the community, serves to feed suspicion that
something more than regulation of safety is going on.” Smith
v. Doe, 538 U.S. at 109. The SORR potentially subjects nonsex
offenders to its jurisdiction. A defendant who car jacks a
vehicle with a passenger who is 17 and is convicted of
kidnapping or unlawful imprisonment would have to register
as sex offender and comply with residency restrictions even
though no sexual assault occurred. KRS 17.500(3)(a)(1); KRS
17.520(2)(a); KRS 17.545(1). The fluidity of the SORR
contributes to its excessive nature. Where a registrant can
live is subject to constant change as new schools, daycares,
and playgrounds are opened. A city that desires to do so can
open enough playgrounds to render all residences within its
limits illegal to the registrant, effectively banishing the sex
offender. Therefore, the Court concluded that the impact of
the SORR is excessively punitive.
Based on this analysis, the Kenton District Court declared
the SORR unconstitutional as it applied to these defendants
because it violated the Ex Post Facto Clause because the
scheme is punitive and not regulatory. The Court succinctly
and persuasively articulated the problem with the SORR: not
“only do they [SORR] dictate where an offender may or may
not reside, but collaterally, they could impact where an
offender’s children attend school, access to public
transportation for employment purposes, access to
employment opportunities, access to residential alcohol and
drug abuse rehabilitation programs and even access to medical
care and residential nursing home facilities for the aging
offender.” Opinion, p. 30.
The constitutionality of the SORR remains an open question.
Other courts in Jefferson County and Madison County have
joined the Kenton District Court in declaring the SORR
unconstitutional. However, the appellate courts of Kentucky
have not yet addressed the issue, though cases are starting
to work their way up. Until then, challenges to the
constitutionality of the SORR should continue to be raised.
DECLARING THE SEX OFFENDER RESIDENCY
REQUIREMENTS UNCONSTITUTIONAL
By Samuel N. Potter, Appeals Branch
In the last edition of the Advocate, part one of this article
summarized the changes House Bill Three (HB3) made to the
sex offender residency requirements (SORR). Part two of this
article will examine a case from Kenton District Court that
ruled the new SORR violated the Ex Post Facto Clause of the
Constitutions of the United States and Kentucky. Copies of
the motion and order can be downloaded from the 2007 annual
conference materials from the session on sex offender
registration on DPA’s intranet. If you do not have access to
DPA’s intranet, feel free to contact the author at
sam.potter@ky.gov or 502 564-8006.
The Kenton District Court case involved more than 10
defendants and five defense lawyers, both private and public
defenders. All the defendants became sex offender registrants
(registrants) before HB3 took effect. The defendants
challenged the constitutionality of HB3 as applied to them on
multiple grounds: Equal Protection violation; Substantive Due
Process violation; Ex Post Facto violation; and Inalienable
Property Rights violation. The first three grounds involved
both the Kentucky and United States Constitutions, while
the last ground relied solely on the Kentucky Constitution.
The Kenton District Court based its dismissal ruling only on
the Ex Post Facto Clause, though it intimated that the remaining
grounds raised substantive issues that will have to be resolved
in the future. The Court’s observation is sound. The implication
of this statement is significant for criminal defense attorneys.
Ex Post Facto challenges will not succeed in each case. Thus,
it is worth the time and effort to challenge the SORR on multiple
grounds, not knowing which Constitutional provision may
warrant relief in any given situation.
The Court spent about eight pages of its 36 page opinion on
the historical background of the sex offender registration
system (SORS). This included a detailed retelling of the facts
of the crime committed against Megan Kanka in New Jersey.
This horrible incident provided the political motivation to pass
SORS across the nation, which are commonly referred to as
Megan’s Law. The SORS attempted to provide a quick solution
to the problem that communities face of not knowing where
sexual offenders live. Over time, however, the registration
requirements and restrictions have grown more burdensome,
and the punishments for violations have grown more harsh.
The defendants challenged the premises upon which the
SORR are founded. The first premise assumed that many sexual
offenders target unknown
children at a high rate. The
second premise assumed
that sex offenders re-offend
at a high rate after being
released. The Court
examined some scientific
studies that supported the
defendants’ challenges of
these two premises. The
findings are striking and are
worth repeating here.
• Many studies show that sexual abuse most often occurs
in a preexisting relationship. For example, 80% of girls and
60% of boys are abused by someone they know.1
• No more than 10% of child sexual abuse cases involve
strangers to the victim.2
• In 1997, only 7% of child molesters in prison committed
their offense against a stranger.3
• More specifically, 3% of children under 12 were abused
by strangers, and 11% of children 13 to 17 were abused
by strangers.4
The Court stated: “The implication of these and countless
other studies is that laws designed to protect our children, to
be effective, should focus on preventing sex offenders from
harming children whom they know, not fixated on preventing
the rare attacks by strangers. Legislators however, continue
to focus on high profile, emotionally charged cases like that
of Megan Kanka, and craft measures designed to combat the
predator lurking in the bushes.” Opinion, p.10.
A causal connection has not been discovered that links an
increased re-offense rate to the offenders residence near a
school or playground. Of 500 sex offenders who legally lived
close to schools, only one was rearrested, and the arrest did
not involve another sexual assault.5 The Minnesota
Department of Corrections concluded that residency
restrictions were not effective in deterring the offender from
re-offending because only two re-offending acts were
committed on unknown victims in parks, but those parks were
several miles from the re-offenders’ homes.6
Studies refute the premise that sex offenders re-offend at a
high rate.
• After five years, the re-offense rate for child molesters
was 12.7% in a study of 29,000 sex offenders.7
• Only 14% of sex offenders released from prison in 1994 reoffended.
8
• Of child molesters released in 1994, 3% were rearrested for
a sexual assault, 14% were rearrested for a violent offense,
and 39% were rearrested for any offense including parole
violations and traffic offenses. Id.
• Of all prisoners released in 1994, 68% were rearrested for
any offense in three years. Id.
The Court concluded this section by quoting another article:
“Residency restrictions suffer from several practical problems
that call into question their basis, efficacy, and fairness. Their
scientific premise is spurious and only leads to over-inclusive
and ineffective restrictions that will do nothing to stop the
small fraction of sex offenders who will harm unknown children
again.” Opinion, p. 11-12.9 With this background information
providing context, the Kenton District Court proceeded to its
Ex Post Facto analysis.
The Court’s Ex Post Facto analysis consisted of over 20 pages.
“No state shall . . . pass any . . . ex post facto law.” U.S. Const.,
Art. I, §10. “No ex post facto law . . . shall be encacted.” Ky.
Const., §19(1). The Court found no U.S. Supreme Court case
directly on point regarding whether the SORR violates the Ex
Post Facto Clause. However, the case of Smith v. Doe, 538
U.S. 84, 105-106 (2003), upheld the constitutionality of the
SORS, ruling that it “is nonpunitive and its retroactive
application does not violate the Ex Post Facto Clause.”
Opinion, p. 13. Based on Smith v. Doe, the Eighth Circuit has
upheld the constitutionality of SORR. Doe v. Miller, 405 F.3rd
700 (8th Cir. 2005). The Kenton District Court disagreed with
the conclusion of Doe v. Miller because of the plain language
found in Smith v. Doe: “offenders subject to the Alaska statute
are free to move where they wish and to live and work as
other citizens, with no supervision.” Opinion, p.14 (quoting,
Smith v. Doe, 538 U.S. at 101; emphasis mine.)
Determining whether a statute violates the Ex Post Facto
Clause consists of a two step analysis. Step one requires the
court considering the issue to ascertain whether the legislature
intended the statute to impose punishment or establish civil
proceedings. Id. at 92. The inquiry ends if the legislature
intended to impose punishment, and the statute violates the
Ex Post Facto Clause. If the legislature intended a regulatory
scheme that is civil and non-punitive, then the court proceeds
to the second step. Step two has the court determine whether
the purpose or effect of the statutory scheme is so punitive
that it negates the legislature’s intent to deem it civil. Id. Five
factors that are not exhaustive or dispositive serve as useful
guideposts for evaluating step two: 1) has the regulatory
scheme been regarded as punishment in our history and
tradition; 2) does it impose an affirmative restraint or disability;
3) does it promote the traditional aims of punishment, 4) does
it have a rational connection to a non-punitive purpose, and
5) is it excessive with respect to that purpose. Id. at 97 (citing,
Hudson v. United States, 522 U.S. 93, 99 (1997)).
The Court began with step one and asked whether the
legislature expressly or implicitly intended the SORR to impose
a criminal punishment or a civil regulation. “Considerable
deference must be accorded to the intent as the legislature
has stated it.” Opinion, p. 15 (quoting, Smith v. Doe, 538 U.S.
at 93). The Court found that the following facts supported a
finding that legislature intended the SORR to be punishment.
• The title of HB3 was “An act related sex offenses and the
punishment therefore.” (Court’s emphassis.)
• Both the House and the Senate required official cost
estimates from the Department of Corrections and local
governments. The estimates focused on increased costs
due to more people being incarcerated and more probation
and parole officers.
• The sole enforcement procedure the legislature authorized
with the SORR were criminal sanctions of a Class A
misdemeanor for the first offense and a Class D felony for
subsequent offenses.
Based on these facts, the Court believed the legislature
intended the law to be punitive and violated the Ex Post Facto
Clause. Even though this resolved the question, the Court in
an effort to be thorough proceeded to step two.
The Court moved on to step two, which is essentially a
balancing test to see if the punitive purpose and/or effect of
the SORR negates its civil regulation. The five factors listed
above provide guidance, and courts are free to weigh the
factors as they see fit. Factor one examines the historical
tradition of the regulatory scheme, namely residency
restrictions. The defendants argued the SORR are equivalent
with the punishment of banishment. Banishment is
“punishment inflicted on criminals by compelling them to quit
a city, place, or county for a specified period of time, or for
life.” Opinion, p. 19 (quoting, United States v. Ju Toy, 198 U.S.
253, 269-270 (1905). The Court agreed with the defendants’
argument.
Factor two considers whether the SORR imposes an affirmative
duty or restraint. Because the SORR restricts where a registrant
can live, the SORR is inherently an affirmative restraint. This
factor distinguishes the residency restrictions from the
registration system. The Kentucky Supreme Court upheld the
SORS because the mere act of registering did not limit the
activities of the registrant. Hyatt v. Commonwealth, 72 S.W.3d
566, 572 (Ky. 2002). The Court reasoned that unlike “registration
requirements, residency restrictions do in fact impose an
affirmative disability and do place limitations on the activities
of the offender. . . . The punishment imposed by these statutes,
banishment, is not prospective in nature.” Opinion, p. 25.
That the SORR imposes an affirmative restraint on registrants
cannot be denied.
Factor three addresses whether the SORR promotes the
traditional aims of punishment—deterrence and retribution.
Smith v. Doe found that the SORS was not retributive because
it was reasonably related to sex offenders high re-offense
rate, though the U.S. Supreme Court did not cite any data to
support this proposition. Smith v. Doe, 538 U.S. at 102. The
Kenton District Court referred to the studies it cited early to
rebut that proposition and show that sex offenders are less
likely to re-offend than the average person. Further evidence
of the retribution nature of the SORR was the idea that a
registrant could visit “his mother’s home near an elementary
school all day long, each and every day, while school was in
session and he allegedly posed the greatest risk to children –
but he could not spend the night there after school was
dismissed and the children returned to their various homes.”
Opinion, 21 (citing, People v. Leroy, 828 N.E. 2d 769, 793 (Il.
App. 2005(dissent))). The absence of individualized risk
assessment of sex offenders bothered Justice Souter
significantly enough that he concurred in Smith v. Doe and
caused Justice Ginsburg to dissent. Smith v. Doe, 538 U.S. at
108-109; 116-117. The Court concluded that the SORR
promoted retribution, a traditional aim of punishment.
Factors four and five are connected. The issue they seek to
resolve is whether a rational connection exists between the
restriction and its purpose. Factor four inquires whether the
SORR has a rational connection to a non-punitive purpose.
The SORR are designed to protect children from sex offenders.
The Court observed that the “protection, however, is minimal
at best and completely illusory at worst.” Opinion, p. 26.
Registrants can still frequent schools, daycares, and
playgrounds as often as they want without violating the
SORR. The SORR do not prevent a registrant from living with
the prior victim as long as the residence is not close to a
school, daycare, or playground. The Court concluded that
the “residency restrictions appear to be little more than a
political placebo, offering false comfort to pacify the public’s
fear of sex offenders.” Opinion, p. 27. No rational connection
exists between the non-punitive purpose of protecting
children and the SORR.
Factor five addresses whether SORR is excessive with respect
to protecting children. The complete lack of individualized
risk assessment lumps all offenders together without any
consideration of the likelihood that a given person will reoffend.
Justice Souter wrote in his concurring opinion that
the SORS “uses past crimes as the touchstone, probably
sweeping in a significant number of people who pose no real
threat to the community, serves to feed suspicion that
something more than regulation of safety is going on.” Smith
v. Doe, 538 U.S. at 109. The SORR potentially subjects nonsex
offenders to its jurisdiction. A defendant who car jacks a
vehicle with a passenger who is 17 and is convicted of
kidnapping or unlawful imprisonment would have to register
as sex offender and comply with residency restrictions even
though no sexual assault occurred. KRS 17.500(3)(a)(1); KRS
17.520(2)(a); KRS 17.545(1). The fluidity of the SORR
contributes to its excessive nature. Where a registrant can
live is subject to constant change as new schools, daycares,
and playgrounds are opened. A city that desires to do so can
open enough playgrounds to render all residences within its
limits illegal to the registrant, effectively banishing the sex
offender. Therefore, the Court concluded that the impact of
the SORR is excessively punitive.
Based on this analysis, the Kenton District Court declared
the SORR unconstitutional as it applied to these defendants
because it violated the Ex Post Facto Clause because the
scheme is punitive and not regulatory. The Court succinctly
and persuasively articulated the problem with the SORR: not
“only do they [SORR] dictate where an offender may or may
not reside, but collaterally, they could impact where an
offender’s children attend school, access to public
transportation for employment purposes, access to
employment opportunities, access to residential alcohol and
drug abuse rehabilitation programs and even access to medical
care and residential nursing home facilities for the aging
offender.” Opinion, p. 30.
The constitutionality of the SORR remains an open question.
Other courts in Jefferson County and Madison County have
joined the Kenton District Court in declaring the SORR
unconstitutional. However, the appellate courts of Kentucky
have not yet addressed the issue, though cases are starting
to work their way up. Until then, challenges to the
constitutionality of the SORR should continue to be raised.
FACTS ABOUT THE PRISON SYSTEM IN THE UNITED STATES
• The United States has the highest reported incarceration rate in the world. While the United States currently incarcerates
750 inmates per 100,000 persons, the world average rate is 166 per 100,000 persons. Russia, the country with the second
highest incarceration rate, imprisons 624 per 100,000 persons. Compared to its democratic, advanced market economy
counterparts, the United States has more people in prison by several orders of magnitude. Although crime rates have
decreased since 1990, the rate of imprisonment has continued to increase.
• Growth in the prison population is due to changing policy, not increased crime. Many criminal justice experts have
found that the increase in the incarceration rate is the product of changes in penal policy and practice, not changes in
crime rates. Changes in sentencing, both in terms of time served and the range of offenses meriting incarceration,
underlie the growth in the prison population.
• Changes in drug policy have had the single greatest impact on criminal justice policy. The Anti-Drug Abuse Act of
1986 created mandatory minimum sentences for possession of specific amounts of cocaine. The Act instituted a 100-
to-1 differential in the treatment of powder and crack cocaine, treating possession of 5 grams of crack cocaine the
same as possession of 500 grams of powder cocaine. Crack cocaine is typically consumed by the poor, while powder
cocaine, a significantly more expensive drug, is consumed by wealthier users. Mandatory minimum sentences for lowlevel
crack-cocaine users are comparable (and harsher in certain cases) to sentences for major drug dealers.
• The composition of prison admissions has also shifted toward less serious offenses, characterized by parole violations
and drug offenses. In 2005, four out of five drug arrests were for possession and one out of five were for sales. The
crime history for three-quarters of drug offenders in state prisons involved non-violent or drug offenses.
• The prison system has a disproportionate impact on minority communities. African Americans, who make-up 12.4
percent of the population, represent more than half of all prison inmates, compared to one-third twenty years ago.
Although African Americans constitute 14 percent of regular drug users, they are 37 percent of those arrested for drug
offenses, and 56 percent of persons in state prisons for drug crimes. African Americans serve nearly as much time in
federal prisons for drug offenses as whites do for violent crimes.
• The U.S. prison system has enormous economic costs associated with prison construction and operation, productivity
losses, and wage effects. In 2006, states spent an estimated $2 billion on prison construction, three times the amount
they were spending fifteen years earlier. The combined expenditures of local governments, state governments, and the
federal government for law enforcement and corrections total over $200 billion annually. In addition to these costs, the
incarceration rate has significant costs associated with the productivity of both prisoners and ex-offenders. The
economic output of prisoners is mostly lost to society while they are imprisoned. Negative productivity effects
continue after release. This wage penalty grows with time, as previous imprisonment can reduce the wage growth of
young men by some 30 percent.
• Prisons are housing many of the nation’s mentally ill. Prisons are absorbing the cost of housing the nation’s mentally
ill. The number of mentally ill in prison is nearly five times the number in inpatient mental hospitals. Large numbers of
mentally ill inmates, as well as inmates with HIV, tuberculosis, and hepatitis also raise serious questions regarding the
costs and distribution of health care resources.
• The United States faces enormous problems of offender reentry and recidivism. The number of ex-offenders reentering
their communities has increased fourfold in the past two decades. On average, however, two out of every three released
prisoners will be rearrested and one in two will return to prison within three years of release.
Source - http://webb.senate.gov/pdf/prisonfactsheet4.html
750 inmates per 100,000 persons, the world average rate is 166 per 100,000 persons. Russia, the country with the second
highest incarceration rate, imprisons 624 per 100,000 persons. Compared to its democratic, advanced market economy
counterparts, the United States has more people in prison by several orders of magnitude. Although crime rates have
decreased since 1990, the rate of imprisonment has continued to increase.
• Growth in the prison population is due to changing policy, not increased crime. Many criminal justice experts have
found that the increase in the incarceration rate is the product of changes in penal policy and practice, not changes in
crime rates. Changes in sentencing, both in terms of time served and the range of offenses meriting incarceration,
underlie the growth in the prison population.
• Changes in drug policy have had the single greatest impact on criminal justice policy. The Anti-Drug Abuse Act of
1986 created mandatory minimum sentences for possession of specific amounts of cocaine. The Act instituted a 100-
to-1 differential in the treatment of powder and crack cocaine, treating possession of 5 grams of crack cocaine the
same as possession of 500 grams of powder cocaine. Crack cocaine is typically consumed by the poor, while powder
cocaine, a significantly more expensive drug, is consumed by wealthier users. Mandatory minimum sentences for lowlevel
crack-cocaine users are comparable (and harsher in certain cases) to sentences for major drug dealers.
• The composition of prison admissions has also shifted toward less serious offenses, characterized by parole violations
and drug offenses. In 2005, four out of five drug arrests were for possession and one out of five were for sales. The
crime history for three-quarters of drug offenders in state prisons involved non-violent or drug offenses.
• The prison system has a disproportionate impact on minority communities. African Americans, who make-up 12.4
percent of the population, represent more than half of all prison inmates, compared to one-third twenty years ago.
Although African Americans constitute 14 percent of regular drug users, they are 37 percent of those arrested for drug
offenses, and 56 percent of persons in state prisons for drug crimes. African Americans serve nearly as much time in
federal prisons for drug offenses as whites do for violent crimes.
• The U.S. prison system has enormous economic costs associated with prison construction and operation, productivity
losses, and wage effects. In 2006, states spent an estimated $2 billion on prison construction, three times the amount
they were spending fifteen years earlier. The combined expenditures of local governments, state governments, and the
federal government for law enforcement and corrections total over $200 billion annually. In addition to these costs, the
incarceration rate has significant costs associated with the productivity of both prisoners and ex-offenders. The
economic output of prisoners is mostly lost to society while they are imprisoned. Negative productivity effects
continue after release. This wage penalty grows with time, as previous imprisonment can reduce the wage growth of
young men by some 30 percent.
• Prisons are housing many of the nation’s mentally ill. Prisons are absorbing the cost of housing the nation’s mentally
ill. The number of mentally ill in prison is nearly five times the number in inpatient mental hospitals. Large numbers of
mentally ill inmates, as well as inmates with HIV, tuberculosis, and hepatitis also raise serious questions regarding the
costs and distribution of health care resources.
• The United States faces enormous problems of offender reentry and recidivism. The number of ex-offenders reentering
their communities has increased fourfold in the past two decades. On average, however, two out of every three released
prisoners will be rearrested and one in two will return to prison within three years of release.
Source - http://webb.senate.gov/pdf/prisonfactsheet4.html
Wednesday, December 19, 2007
States Seek Alternatives to More Prisons
By John Gramlich, Stateline.org Staff Writer
With swelling prison populations cutting into state budgets,
lawmakers are exploring ways to ease overcrowding beyond
building expensive new correctional facilities.
Though the construction of prisons continues as states
struggle to provide enough beds for those behind bars,
legislators increasingly are looking at other ways to free up
space and save money, including expanded programs to help
prevent offenders from being incarcerated again, earlier
release dates for low-risk inmates and sentencing revisions.
Criminal justice analysts point to Kansas and Texas as recent
innovators. Both states are putting off building new prisons,
focusing instead on rehabilitation and recidivism. At the
same time, a new $7.7 billion prison spending plan in California
– where overcrowding last year forced Gov. Arnold
Schwarzenegger (R) to declare a state of emergency – has
met with skepticism. Critics call the plan “prison expansion,
not prison reform” and say the initiative relies on impractical
fixes such as shipping inmates out of state.
State spending on prisons surged 10 percent nationally last
fiscal year (see graphic) and growing inmate populations
played a lead role in those costs, according to an analysis
by the National Conference of State Legislatures. Corrections
trails only education and health care in swallowing state
dollars, and experts say lawmakers are responding to the
budgetary pressures by trying more cost-effective
approaches.
“We’re seeing more and more states in different regions and
with different political leadership tackling this issue and
recognizing that the more they spend on prisons, the less
they have to spend on health, education and other
priorities,” said Adam Gelb, project director of the Public
Safety Performance Project.
The project – which, like Stateline.org, is funded by the Pew
Charitable Trusts – in February forecast steep increases in
incarceration rates and state spending in the next five years
unless legislatures enact policy changes.
Kansas Gov. Kathleen Sebelius (D) last month signed into
law a prison plan that is winning accolades for its creativity.
Among other measures, the $4.4 million package provides
financial incentives to community correctional systems for
reducing prisoner admissions and allows some low-risk
inmates to reduce their sentences through education or
counseling while behind bars.
Under the plan, the state offers grants to localities for
preventing “conditions violations” such as parole or
probation infractions – a leading cause of prison
overcrowding in Kansas and nationwide. To qualify for the
grants, communities must cut recidivism rates by at least 20
percent using a variety of support tactics.
The early-release provision would cut time served by 60
days for some offenders who successfully complete
programs that decrease their chances of returning to prison.
Several other states, including Michigan, Nevada and
Washington, recently announced plans to release some lowrisk
offenders early through similar initiatives, including
good-time credits and expanded work-release programs.
Expectations are high in Kansas. State Rep. Pat Colloton (R),
who led the push for the legislation in the House of
Representatives, said she expects the plan to allow the state
to postpone new prison construction until 2016 – though
officials had said expansion would be necessary starting in
two years.
In Texas, which houses 153,000 prisoners, the Legislature
recently approved a plan that lawmakers have characterized
as one of the most significant changes in corrections in a
decade. The package, part of the state budget awaiting
Republican Gov. Rick Perry’s approval, would divert
thousands of inmates from prison to rehabilitation facilities,
where beds would free up twice a year as offenders get help
and re-enter society. Notably, the focus on rehabilitation
would put off construction of costly new prisons.
The plan includes a new 500-bed treatment facility for those
incarcerated for driving while intoxicated (DWI) – offenders
who often have substance-abuse problems but receive no
rehabilitation and face stiff sentences without the possibility
of parole, according to one state Senate aide.
“We have changed the course of the ship substantially in
the state of Texas,” said state Rep. Jerry Madden (R),
chairman of the House Corrections Committee and an
engineer of the prison plan.
In California, the only state with a larger prison system than
Texas, Schwarzenegger this month signed a plan that calls
for the construction of 53,000 new beds, with rehabilitation
services to accompany the expansion.
Analysts say the plan has the potential to overhaul the
state’s prison system by providing inmates new opportunities
for education, job training and counseling. But they note
that funding for the initiative’s rehabilitation services is far
from guaranteed because the state has not yet approved its
budget, and many in the corrections community are skeptical
that lawmakers will follow through on their promises.
“It’s purely prison expansion. It’s just more business as
usual,” said Joe Baumann, a state corrections officer who
has worked for 20 years at the California Rehabilitation Center
in Norco. “The thing that everybody misses is the
incarceration rate per 100,000 people.”
Meanwhile, other states are revisiting their sentencing
policies. Nevada, facing an explosion in its prison population,
recently reinstated a commission – dormant since 2000 –
that will make recommendations on changing sentencing
laws to help ease overcrowding.
At least 22 states revised their sentencing laws between
2004 and 2006 to ease prison overcrowding, according to a
study by The Sentencing Project, a Washington., D.C.-based
organization that advocates for policy changes.
With swelling prison populations cutting into state budgets,
lawmakers are exploring ways to ease overcrowding beyond
building expensive new correctional facilities.
Though the construction of prisons continues as states
struggle to provide enough beds for those behind bars,
legislators increasingly are looking at other ways to free up
space and save money, including expanded programs to help
prevent offenders from being incarcerated again, earlier
release dates for low-risk inmates and sentencing revisions.
Criminal justice analysts point to Kansas and Texas as recent
innovators. Both states are putting off building new prisons,
focusing instead on rehabilitation and recidivism. At the
same time, a new $7.7 billion prison spending plan in California
– where overcrowding last year forced Gov. Arnold
Schwarzenegger (R) to declare a state of emergency – has
met with skepticism. Critics call the plan “prison expansion,
not prison reform” and say the initiative relies on impractical
fixes such as shipping inmates out of state.
State spending on prisons surged 10 percent nationally last
fiscal year (see graphic) and growing inmate populations
played a lead role in those costs, according to an analysis
by the National Conference of State Legislatures. Corrections
trails only education and health care in swallowing state
dollars, and experts say lawmakers are responding to the
budgetary pressures by trying more cost-effective
approaches.
“We’re seeing more and more states in different regions and
with different political leadership tackling this issue and
recognizing that the more they spend on prisons, the less
they have to spend on health, education and other
priorities,” said Adam Gelb, project director of the Public
Safety Performance Project.
The project – which, like Stateline.org, is funded by the Pew
Charitable Trusts – in February forecast steep increases in
incarceration rates and state spending in the next five years
unless legislatures enact policy changes.
Kansas Gov. Kathleen Sebelius (D) last month signed into
law a prison plan that is winning accolades for its creativity.
Among other measures, the $4.4 million package provides
financial incentives to community correctional systems for
reducing prisoner admissions and allows some low-risk
inmates to reduce their sentences through education or
counseling while behind bars.
Under the plan, the state offers grants to localities for
preventing “conditions violations” such as parole or
probation infractions – a leading cause of prison
overcrowding in Kansas and nationwide. To qualify for the
grants, communities must cut recidivism rates by at least 20
percent using a variety of support tactics.
The early-release provision would cut time served by 60
days for some offenders who successfully complete
programs that decrease their chances of returning to prison.
Several other states, including Michigan, Nevada and
Washington, recently announced plans to release some lowrisk
offenders early through similar initiatives, including
good-time credits and expanded work-release programs.
Expectations are high in Kansas. State Rep. Pat Colloton (R),
who led the push for the legislation in the House of
Representatives, said she expects the plan to allow the state
to postpone new prison construction until 2016 – though
officials had said expansion would be necessary starting in
two years.
In Texas, which houses 153,000 prisoners, the Legislature
recently approved a plan that lawmakers have characterized
as one of the most significant changes in corrections in a
decade. The package, part of the state budget awaiting
Republican Gov. Rick Perry’s approval, would divert
thousands of inmates from prison to rehabilitation facilities,
where beds would free up twice a year as offenders get help
and re-enter society. Notably, the focus on rehabilitation
would put off construction of costly new prisons.
The plan includes a new 500-bed treatment facility for those
incarcerated for driving while intoxicated (DWI) – offenders
who often have substance-abuse problems but receive no
rehabilitation and face stiff sentences without the possibility
of parole, according to one state Senate aide.
“We have changed the course of the ship substantially in
the state of Texas,” said state Rep. Jerry Madden (R),
chairman of the House Corrections Committee and an
engineer of the prison plan.
In California, the only state with a larger prison system than
Texas, Schwarzenegger this month signed a plan that calls
for the construction of 53,000 new beds, with rehabilitation
services to accompany the expansion.
Analysts say the plan has the potential to overhaul the
state’s prison system by providing inmates new opportunities
for education, job training and counseling. But they note
that funding for the initiative’s rehabilitation services is far
from guaranteed because the state has not yet approved its
budget, and many in the corrections community are skeptical
that lawmakers will follow through on their promises.
“It’s purely prison expansion. It’s just more business as
usual,” said Joe Baumann, a state corrections officer who
has worked for 20 years at the California Rehabilitation Center
in Norco. “The thing that everybody misses is the
incarceration rate per 100,000 people.”
Meanwhile, other states are revisiting their sentencing
policies. Nevada, facing an explosion in its prison population,
recently reinstated a commission – dormant since 2000 –
that will make recommendations on changing sentencing
laws to help ease overcrowding.
At least 22 states revised their sentencing laws between
2004 and 2006 to ease prison overcrowding, according to a
study by The Sentencing Project, a Washington., D.C.-based
organization that advocates for policy changes.
Just like Humpty Dumpty, Shaken Baby Syndrome has fallen down.
by Susan Jackson Balliet and Erin Hoffman Yang
From depositions and Daubert[1] hearings in a Kentucky case out of Greenup County,[2] it has emerged that Shaken Baby Syndrome (SBS) has disintegrated into three separate theories, and two out of three are no good. First, there is the old SBS theory, that shaking alone can cause subdural hematoma and retinal hemorrhaging. This old SBS theory has fallen from favor and is no longer accepted as valid within the scientific community. There is no reported case rejecting the theory, but the Commonwealth’s experts in the Greenup case admitted the theory is no longer considered valid and declined to rely on it. Second, there is a newer, emerging SBS theory that the injuries are caused by shaking plus hard impact. This second theory has some case support and stronger science behind it, as acknowledged in the Greenup case. Finally, third, there is the most recent, least tested, least litigated theory, that subdural hematoma and retinal bleeding can be caused by shaking plus impact with a soft surface leaving no visible injuries. The Greenup court rejected this third theory, and ruled that because there were no visible external injuries in the two cases presented, no SBS opinion evidence would be allowed. The Commonwealth’s appeal of the ruling is pending.
The good news out of Greenup County is that the vast majority of reported SBS cases deal with the old, discredited shaking alone theory,[3] and are now completely irrelevant. Only a few cases address the new, shaking plus hard impact theory, which applies only to cases involving obvious, severe injuries.[4] And there is not a single reported case that deals with the Commonwealth’s latest, emerging SBS theory, that shaking plus impact with a soft surface leaving no significant visible injuries can cause subdural hematoma or retinal hemorrhaging.
In the Greenup cases, there was only a hint of evidence that shaking plus impact with a soft surface –like a mattress—could possibly cause SBS injuries. One expert, Dr. Ann-Christine Duhaime, opined that shaking together with impact with a soft surface leaving no visible injuries might cause SBS, and the treating physician, Dr. Phillip Scribano, testified that evidence of impact might show up later in an autopsy. There were a few case studies that were “suggestive.” But the scant evidence supporting the Commonwealth’s SBS soft impact theory was overshadowed by emerging studies indicating that it is impossible to generate sufficient velocity by shaking alone to cause SBS,[5] and the new Japanese studies that indicate retinal bleeding can be caused by bleed-through from an earlier hematoma. In published studies, the Commonwealth's own expert opined that there are critical gaps in the medical community's understanding of traumatic brain injury.[6] According to the Commonwealth’s own witness, Scribano, “The problem in 2006 is that we don’t have enough science….”
Shaken Baby Syndrome is a Daubert question, and not a matter of simple medical “causation.”
The Commonwealth argued in Greenup that SBS wasn’t a Daubert issue because any doctor can get on the stand and diagnose Shaken Baby Syndrome as a simple matter of “medical causation.” But the Kentucky Supreme Court has held that when the substance of testimony is “beyond the mere observational or perceptional capability of any mere lay witness,” and where the “substance” of testimony requires “considerable knowledge, training, and experience,” under KRE §702 the Commonwealth must qualify both the subject area (i.e., the “substance”) and the witness under Daubert:
… the Commonwealth asserted [Maiden] was a lay witness. The substance of his testimony, however, is contrary to this assertion and beyond the mere observational or perceptional capability of any mere lay witness. The substance of Maiden's testimony clearly required considerable knowledge, training, and experience, and thus, the Commonwealth was required to first qualify him as an expert witness.[7]
In Dougherty, the subject was blood spatter, i.e., a relatively simple matter of the physics of dispersing liquids. And the proposed witness was a sheriff, who had probably seen a lot of crime scenes, and a lot of blood. Yet our high Court reversed in Daugherty, because it found that even the relatively simple topic of blood spatter was beyond a lay witness’s expertise. SBS is far more complex than blood spatter, i.e., an evolving medical sub-speciality, in the over-lapping fields of medical diagnosis and biomechanics. Understanding SBS requires expertise in medicine, pediatric biology, biomechanics, and physics, i.e., a comparison of an infant’s symptoms with the effects of various rotational velocities, accelerations, and varieties of impact. SBS is no topic for a lay witness.
There are cases that say doctors can testify to simple matters of medical causation. But these cases tend to deal with a far less complicated question.[8] It doesn’t take much science to figure out that a vaginal tear could be caused by insertion of a foreign object, and it is no surprise that no one raised a Daubert challenge to the medical “causation” opinion in such cases. It is also no surprise that there was no Daubert challenge in another common-sense case, Hicks’ Adm’x,[9] where a nurse who disobeyed orders to hold an unconscious patient’s chin up caused his strangulation. These cases stand for the limited proposition that when causation is obvious, and no one challenges opinion testimony, the courts tend to admit it without Daubert testing.
But when there is a challenge, expert opinion evidence (including medical “causation” evidence) is only admissible if it meets relevancy requirements under KRE §401 and Daubert. As stated in Stringer, medical causation opinion is admissible only:
… so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of [Daubert], (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702.[10]
Once you get the court to agree it’s a Daubert issue, the next problem is convincing the court that the Commonwealth bears the ultimate burden of proving Shaken Baby Syndrome is relevant and reliable.
Placing the burden on the defendant violates Daubert.
According to Footnote 20 in Daubert the proponent of so-called scientific evidence must bear the burden of proof, and the level of proof is a preponderance.[11] Despite this clear directive, Kentucky has adopted an opposite rule, requiring the opponent of a long list of so-called “scientific” evidence to bear the burden of proof.[12] Kentucky’s practice of grandfathering “presumptively valid” so-called scientific specialities by taking judicial notice that they are already considered valid under Daubert (often based on their previous acceptance under the old Frye[13] standard) and then shifting the burden to the opponent to prove unreliability violates footnote 20 in Daubert. Kentucky’s burden-shifting rule should be vigorously challenged.
The burden shift should definitely be challenged when applied to any type of so-called science that is not listed in Johnson, and not otherwise accepted in Kentucky as reliable. SBS is not one of the “presumptively valid” scientific theories judicially noticed in Johnson. Kentucky’s appellate courts have never ruled that any SBS theory, old or new, is valid science, and have never considered under Daubert a fact situation where there is no significant evidence of any injury or abuse apart from retinal hemorrhaging and subdural hematoma.
Arguably Stringer requires defendants to meet only an initial burden of coming forward with some evidence in order to show that an objection to SBS is not frivolous. After that initial burden is met, then, in accord with footnote 20 in Daubert—the trial court must require the Commonwealth to bear the burden of establishing the admissibility of SBS evidence by a preponderance. According to the Daubert experts who wrote the encyclopedic reference, Modern Scientific Evidence, that is the “correct solution”:
The confusion in Daubert hearings is perhaps understandable, because the first voice heard is that of the opponent of proffered expert testimony. This has given some lawyers and judges the impression that the opponent has the burden of convincing the court that the witness does not meet Daubert’s requirements. This impression may be all the more compelling when the expertise being challenged is a type that has become familiar to the courts. But the correct procedure is the opposite of that.
The opponent of expert evidence need only make a showing sufficient to convince a trial court that the objection to the evidence is not frivolous; this triggers a Daubert hearing under Rule 104(a). In a Rule 104(a) hearing on the question of the admissibility of expert evidence, ‘These matters should be established by a preponderance of proof.’[cite to Daubert omitted] The proponent has the initial burden of production and the ultimate burden of persuading the court that the proffered expert evidence satisfies Rule 702.[14]
In the Greenup County cases, the circuit court ruled that it would not allow opinion on SBS except in a case where there was some actual, physical evidence of abusive impact. In other words, while rejecting SBS theories one and three, the court recognized that theory two, shaking plus impact (hard surface) meets Daubert. But since the doctors agreed there was no significant evidence of hard impact, SBS theory two (shaking plus hard impact) was irrelevant to the facts presented. In the end, the Greenup court excluded SBS (shaking plus hard impact) opinion evidence on relevance grounds.
The Kentucky Supreme Court is moving away from judicial notice and the old Frye cases.
A recent Westlaw search produced 982 cases containing the phrase “Shaken Baby Syndrome.” But even though the Kentucky Supreme Court might once have relied on these (mostly) old Frye cases to support judicial notice of the reliability of SBS, since taking that approach in Johnson[15] our high Court has backed away from judicial notice as a proper method for recognizing a new “science.” Indeed, reliance on old Frye cases proved risky. Just one year after Johnson, the national Innocence Project exonerated a Kentuckian by proving that microscopic hair analysis –judicially noticed in Johnson as reliable—is in fact unreliable:
[Gregory’s] conviction was vacated in 2000 after DNA tests established that the sole physical evidence linking [Gregory] to either of the crime scenes-several hairs-could not have come from [Gregory]. All charges against [Gregory] were dismissed on August 25, 2000, after [Gregory] had spent more than seven years in custody.[16]
DNA testing proved that the hair in Gregory’s case was not Gregory’s and –contrary to the old Frye cases the Johnson Court relied on— it turned out to be unreliable.
Given that the bulk of the reported cases deal with the now discredited “shaking alone” SBS theory, or the “shaking plus hard impact” theory, it seems unlikely that our high Court would judicially notice old, irrelevant cases in order to validate a newer, untested sub-theory of SBS. Indeed, in Fugate, while the Court approved RFLP and PCR methods of testing DNA, it did not use judicial notice to approve the relatively untested sub-method of mitochondrial DNA testing, and still has not approved this newer method.
The Court’s more recent decision in Ragland embodies the Court’s post-Johnson approach, which focuses not on judicial notice, and not on old outdated cases, but on scientific data, research and testing.[17] Ragland moves Kentucky beyond Fugate and Johnson by mandating consideration of underlying scientific reliability. Implicitly rejecting Johnson, the Ragland Court found lead bullet analysis was completely unreliable without citing Johnson, and without paying any attention to all the old Frye cases upholding ballistics.
Ragland represents a significant retreat from the judicial notice approach of Fugate and Johnson and a closer adherence to Daubert.[18] Contrary to Johnson (which found “ballistics” scientifically reliable based entirely on past Frye cases), the Court in Ragland specifically states that past cases admitting lead bullet analysis are “not the equivalent of scientific acceptance, owing to the paucity of published data, the lack of independent research, and the fact that defense lawyers have generally not challenged the technique.”[19] In Ragland, the Kentucky Supreme Court noted that for lead bullet analysis “[a]dditional testing would be needed to fully satisfy the Daubert/Kumho testing requirement.”[20]
Similarly, 982 Westlaw cases mentioning SBS “are not the equivalent of scientific acceptance, owing to the paucity of published data, [and] the lack of independent research.” Additional testing is needed before the two Shaken Baby Syndrome theories rejected by the Greenup court (shaking alone, and shaking plus impact leaving no visible injuries) will satisfy KRE §401 and Daubert. We need to keep a careful watch on all “Shaken Baby” cases, to see which sub-theory the Commonwealth is advancing. Shaken Baby Syndrome, like Humpty Dumpty, has fallen down and broken into little pieces. We need to challenge the Commonwealth any time it attempts to introduce Shaken Baby Syndrome opinion evidence, keep an eye on which sub-theory is presented, and demand full Daubert hearings.
[1] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“general acceptance” is not a necessary precondition to admissibility; trial judge must ensure that any and all scientific evidence is both relevant and reliable.)
[2] Kudos to Assistant Public Advocates Samuel Weaver and Amy Craft, who won the extensive Daubert proceedings on SBS in Greenup Circuit Court, relied on as the basis for this article.
[3] E.g., Johnson v. State, 933 So.2d 568 (Fla. 2006), and State v, McClary, 541 A.2d 96 (Conn. 1988).
[4] See, Minor v. State, 914 So.2d 372, 384 (Ala. 2004) (victim had skull fracture, organ damage and rib fracture); Deese v. State, 786 A2d 751 (Md. 2001) (victim had broken leg, bruises, old and new wounds, case decided under Frye standard); State v. Carrilo, 562 S.E.2d 47 (N.C. 2002); Ray v. State, 838 N.E.2d 480 (Ind. 2005) (victim had bruises and bone fractures); Steggal v. State, 8 S.W.3d 538 (Ark. 2000) (victim endured extensive skull fractures, rib fractures, and forearm fractures).
[5] Faris A. Bandak, Shaken Baby Syndrome: A biomechanics analysis of injury mechanisms, Forensic Science International 151 (2005) 71-79; and Ann-Christine Duhaime, M.D., et al., The Shaken Baby Syndrome; A clinical, pathological, and biomechanical study, in J. Neurosurg 66:409-415 (1987), and Head Injury in Very Young Chilrden: Mechanisms, Injury Types, and Ophthamologic Findings in 100 Hospitalized Patients Younger than 2 Years of Age, in Pediatrics (1992).
[6] Pathobiology and Biomechanics of Inflicted Childhood Head Trauma, Susan B. Marguiles, PhD and Betty S. Spivack, pg. 222, 228-229.
[7] Dougherty v. Commonwealth, 2006 WL 3386576. There is no published opinion on point.
[8]Richardson v. Commonwealth, 161 S.W.3d 327 (Ky. 2005) (Spivack permitted to testify to hymenal injury); Hellstrom v. Commonwealth, 825 S.W.2d 612 (Ky. 1992) (vaginal tears); Pevlor v. Commonwealth, 638 S.W.2d 272 (Ky. 1982) (vaginal tears).
[9] Hicks’ Adm’x v. Harlan Hospital, 21 S.W.2d 125 (Ky.App. 1929) (nurse failed to follow orders)
[10] Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997)(also a vaginal injury case).
[11] Daubert, 509 U.S. at 593 n. 20.
[12] Florence v. Commonwealth, 120 S.W.3d 699, 703 (Ky. 2003); see also, Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999) (recognizing RLFP and PCR types of DNA testing); and, Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999) (recognizing hair analysis, breath testing to determine blood alcohol content, HLA blood typing to determine paternity, fiber analysis, ballistics analysis, and fingerprint analysis).
[13] Frye v. United States, 293 F.1013 (D.C. Cir. 1923).
[14] David L. Faigman et al., Modern Scientific Evidence, Vol. 1, at 26 (2006-2007 Ed.).
[15] Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999)
[16] Gregory v. City of Louisville, 444 F.3d 725, 731 (6th Cir. 2006) (police officers and forensic experts not immune from §1983 actions by exonerated prisoners).
[17] Ragland v. Commonwealth, 191 S.W.3d 569 (Ky. 2006)
[18] Cf., dissent in Johnson, 12 S.W.3d at 267-268 (Justice Stumbo, joined by Justice Lambert)
[19] Ragland v. Commonwealth, 191 S.W.3d at 579.
[20] Ragland v. Commonwealth, 191 S.W.3d at 578.
From depositions and Daubert[1] hearings in a Kentucky case out of Greenup County,[2] it has emerged that Shaken Baby Syndrome (SBS) has disintegrated into three separate theories, and two out of three are no good. First, there is the old SBS theory, that shaking alone can cause subdural hematoma and retinal hemorrhaging. This old SBS theory has fallen from favor and is no longer accepted as valid within the scientific community. There is no reported case rejecting the theory, but the Commonwealth’s experts in the Greenup case admitted the theory is no longer considered valid and declined to rely on it. Second, there is a newer, emerging SBS theory that the injuries are caused by shaking plus hard impact. This second theory has some case support and stronger science behind it, as acknowledged in the Greenup case. Finally, third, there is the most recent, least tested, least litigated theory, that subdural hematoma and retinal bleeding can be caused by shaking plus impact with a soft surface leaving no visible injuries. The Greenup court rejected this third theory, and ruled that because there were no visible external injuries in the two cases presented, no SBS opinion evidence would be allowed. The Commonwealth’s appeal of the ruling is pending.
The good news out of Greenup County is that the vast majority of reported SBS cases deal with the old, discredited shaking alone theory,[3] and are now completely irrelevant. Only a few cases address the new, shaking plus hard impact theory, which applies only to cases involving obvious, severe injuries.[4] And there is not a single reported case that deals with the Commonwealth’s latest, emerging SBS theory, that shaking plus impact with a soft surface leaving no significant visible injuries can cause subdural hematoma or retinal hemorrhaging.
In the Greenup cases, there was only a hint of evidence that shaking plus impact with a soft surface –like a mattress—could possibly cause SBS injuries. One expert, Dr. Ann-Christine Duhaime, opined that shaking together with impact with a soft surface leaving no visible injuries might cause SBS, and the treating physician, Dr. Phillip Scribano, testified that evidence of impact might show up later in an autopsy. There were a few case studies that were “suggestive.” But the scant evidence supporting the Commonwealth’s SBS soft impact theory was overshadowed by emerging studies indicating that it is impossible to generate sufficient velocity by shaking alone to cause SBS,[5] and the new Japanese studies that indicate retinal bleeding can be caused by bleed-through from an earlier hematoma. In published studies, the Commonwealth's own expert opined that there are critical gaps in the medical community's understanding of traumatic brain injury.[6] According to the Commonwealth’s own witness, Scribano, “The problem in 2006 is that we don’t have enough science….”
Shaken Baby Syndrome is a Daubert question, and not a matter of simple medical “causation.”
The Commonwealth argued in Greenup that SBS wasn’t a Daubert issue because any doctor can get on the stand and diagnose Shaken Baby Syndrome as a simple matter of “medical causation.” But the Kentucky Supreme Court has held that when the substance of testimony is “beyond the mere observational or perceptional capability of any mere lay witness,” and where the “substance” of testimony requires “considerable knowledge, training, and experience,” under KRE §702 the Commonwealth must qualify both the subject area (i.e., the “substance”) and the witness under Daubert:
… the Commonwealth asserted [Maiden] was a lay witness. The substance of his testimony, however, is contrary to this assertion and beyond the mere observational or perceptional capability of any mere lay witness. The substance of Maiden's testimony clearly required considerable knowledge, training, and experience, and thus, the Commonwealth was required to first qualify him as an expert witness.[7]
In Dougherty, the subject was blood spatter, i.e., a relatively simple matter of the physics of dispersing liquids. And the proposed witness was a sheriff, who had probably seen a lot of crime scenes, and a lot of blood. Yet our high Court reversed in Daugherty, because it found that even the relatively simple topic of blood spatter was beyond a lay witness’s expertise. SBS is far more complex than blood spatter, i.e., an evolving medical sub-speciality, in the over-lapping fields of medical diagnosis and biomechanics. Understanding SBS requires expertise in medicine, pediatric biology, biomechanics, and physics, i.e., a comparison of an infant’s symptoms with the effects of various rotational velocities, accelerations, and varieties of impact. SBS is no topic for a lay witness.
There are cases that say doctors can testify to simple matters of medical causation. But these cases tend to deal with a far less complicated question.[8] It doesn’t take much science to figure out that a vaginal tear could be caused by insertion of a foreign object, and it is no surprise that no one raised a Daubert challenge to the medical “causation” opinion in such cases. It is also no surprise that there was no Daubert challenge in another common-sense case, Hicks’ Adm’x,[9] where a nurse who disobeyed orders to hold an unconscious patient’s chin up caused his strangulation. These cases stand for the limited proposition that when causation is obvious, and no one challenges opinion testimony, the courts tend to admit it without Daubert testing.
But when there is a challenge, expert opinion evidence (including medical “causation” evidence) is only admissible if it meets relevancy requirements under KRE §401 and Daubert. As stated in Stringer, medical causation opinion is admissible only:
… so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of [Daubert], (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702.[10]
Once you get the court to agree it’s a Daubert issue, the next problem is convincing the court that the Commonwealth bears the ultimate burden of proving Shaken Baby Syndrome is relevant and reliable.
Placing the burden on the defendant violates Daubert.
According to Footnote 20 in Daubert the proponent of so-called scientific evidence must bear the burden of proof, and the level of proof is a preponderance.[11] Despite this clear directive, Kentucky has adopted an opposite rule, requiring the opponent of a long list of so-called “scientific” evidence to bear the burden of proof.[12] Kentucky’s practice of grandfathering “presumptively valid” so-called scientific specialities by taking judicial notice that they are already considered valid under Daubert (often based on their previous acceptance under the old Frye[13] standard) and then shifting the burden to the opponent to prove unreliability violates footnote 20 in Daubert. Kentucky’s burden-shifting rule should be vigorously challenged.
The burden shift should definitely be challenged when applied to any type of so-called science that is not listed in Johnson, and not otherwise accepted in Kentucky as reliable. SBS is not one of the “presumptively valid” scientific theories judicially noticed in Johnson. Kentucky’s appellate courts have never ruled that any SBS theory, old or new, is valid science, and have never considered under Daubert a fact situation where there is no significant evidence of any injury or abuse apart from retinal hemorrhaging and subdural hematoma.
Arguably Stringer requires defendants to meet only an initial burden of coming forward with some evidence in order to show that an objection to SBS is not frivolous. After that initial burden is met, then, in accord with footnote 20 in Daubert—the trial court must require the Commonwealth to bear the burden of establishing the admissibility of SBS evidence by a preponderance. According to the Daubert experts who wrote the encyclopedic reference, Modern Scientific Evidence, that is the “correct solution”:
The confusion in Daubert hearings is perhaps understandable, because the first voice heard is that of the opponent of proffered expert testimony. This has given some lawyers and judges the impression that the opponent has the burden of convincing the court that the witness does not meet Daubert’s requirements. This impression may be all the more compelling when the expertise being challenged is a type that has become familiar to the courts. But the correct procedure is the opposite of that.
The opponent of expert evidence need only make a showing sufficient to convince a trial court that the objection to the evidence is not frivolous; this triggers a Daubert hearing under Rule 104(a). In a Rule 104(a) hearing on the question of the admissibility of expert evidence, ‘These matters should be established by a preponderance of proof.’[cite to Daubert omitted] The proponent has the initial burden of production and the ultimate burden of persuading the court that the proffered expert evidence satisfies Rule 702.[14]
In the Greenup County cases, the circuit court ruled that it would not allow opinion on SBS except in a case where there was some actual, physical evidence of abusive impact. In other words, while rejecting SBS theories one and three, the court recognized that theory two, shaking plus impact (hard surface) meets Daubert. But since the doctors agreed there was no significant evidence of hard impact, SBS theory two (shaking plus hard impact) was irrelevant to the facts presented. In the end, the Greenup court excluded SBS (shaking plus hard impact) opinion evidence on relevance grounds.
The Kentucky Supreme Court is moving away from judicial notice and the old Frye cases.
A recent Westlaw search produced 982 cases containing the phrase “Shaken Baby Syndrome.” But even though the Kentucky Supreme Court might once have relied on these (mostly) old Frye cases to support judicial notice of the reliability of SBS, since taking that approach in Johnson[15] our high Court has backed away from judicial notice as a proper method for recognizing a new “science.” Indeed, reliance on old Frye cases proved risky. Just one year after Johnson, the national Innocence Project exonerated a Kentuckian by proving that microscopic hair analysis –judicially noticed in Johnson as reliable—is in fact unreliable:
[Gregory’s] conviction was vacated in 2000 after DNA tests established that the sole physical evidence linking [Gregory] to either of the crime scenes-several hairs-could not have come from [Gregory]. All charges against [Gregory] were dismissed on August 25, 2000, after [Gregory] had spent more than seven years in custody.[16]
DNA testing proved that the hair in Gregory’s case was not Gregory’s and –contrary to the old Frye cases the Johnson Court relied on— it turned out to be unreliable.
Given that the bulk of the reported cases deal with the now discredited “shaking alone” SBS theory, or the “shaking plus hard impact” theory, it seems unlikely that our high Court would judicially notice old, irrelevant cases in order to validate a newer, untested sub-theory of SBS. Indeed, in Fugate, while the Court approved RFLP and PCR methods of testing DNA, it did not use judicial notice to approve the relatively untested sub-method of mitochondrial DNA testing, and still has not approved this newer method.
The Court’s more recent decision in Ragland embodies the Court’s post-Johnson approach, which focuses not on judicial notice, and not on old outdated cases, but on scientific data, research and testing.[17] Ragland moves Kentucky beyond Fugate and Johnson by mandating consideration of underlying scientific reliability. Implicitly rejecting Johnson, the Ragland Court found lead bullet analysis was completely unreliable without citing Johnson, and without paying any attention to all the old Frye cases upholding ballistics.
Ragland represents a significant retreat from the judicial notice approach of Fugate and Johnson and a closer adherence to Daubert.[18] Contrary to Johnson (which found “ballistics” scientifically reliable based entirely on past Frye cases), the Court in Ragland specifically states that past cases admitting lead bullet analysis are “not the equivalent of scientific acceptance, owing to the paucity of published data, the lack of independent research, and the fact that defense lawyers have generally not challenged the technique.”[19] In Ragland, the Kentucky Supreme Court noted that for lead bullet analysis “[a]dditional testing would be needed to fully satisfy the Daubert/Kumho testing requirement.”[20]
Similarly, 982 Westlaw cases mentioning SBS “are not the equivalent of scientific acceptance, owing to the paucity of published data, [and] the lack of independent research.” Additional testing is needed before the two Shaken Baby Syndrome theories rejected by the Greenup court (shaking alone, and shaking plus impact leaving no visible injuries) will satisfy KRE §401 and Daubert. We need to keep a careful watch on all “Shaken Baby” cases, to see which sub-theory the Commonwealth is advancing. Shaken Baby Syndrome, like Humpty Dumpty, has fallen down and broken into little pieces. We need to challenge the Commonwealth any time it attempts to introduce Shaken Baby Syndrome opinion evidence, keep an eye on which sub-theory is presented, and demand full Daubert hearings.
[1] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“general acceptance” is not a necessary precondition to admissibility; trial judge must ensure that any and all scientific evidence is both relevant and reliable.)
[2] Kudos to Assistant Public Advocates Samuel Weaver and Amy Craft, who won the extensive Daubert proceedings on SBS in Greenup Circuit Court, relied on as the basis for this article.
[3] E.g., Johnson v. State, 933 So.2d 568 (Fla. 2006), and State v, McClary, 541 A.2d 96 (Conn. 1988).
[4] See, Minor v. State, 914 So.2d 372, 384 (Ala. 2004) (victim had skull fracture, organ damage and rib fracture); Deese v. State, 786 A2d 751 (Md. 2001) (victim had broken leg, bruises, old and new wounds, case decided under Frye standard); State v. Carrilo, 562 S.E.2d 47 (N.C. 2002); Ray v. State, 838 N.E.2d 480 (Ind. 2005) (victim had bruises and bone fractures); Steggal v. State, 8 S.W.3d 538 (Ark. 2000) (victim endured extensive skull fractures, rib fractures, and forearm fractures).
[5] Faris A. Bandak, Shaken Baby Syndrome: A biomechanics analysis of injury mechanisms, Forensic Science International 151 (2005) 71-79; and Ann-Christine Duhaime, M.D., et al., The Shaken Baby Syndrome; A clinical, pathological, and biomechanical study, in J. Neurosurg 66:409-415 (1987), and Head Injury in Very Young Chilrden: Mechanisms, Injury Types, and Ophthamologic Findings in 100 Hospitalized Patients Younger than 2 Years of Age, in Pediatrics (1992).
[6] Pathobiology and Biomechanics of Inflicted Childhood Head Trauma, Susan B. Marguiles, PhD and Betty S. Spivack, pg. 222, 228-229.
[7] Dougherty v. Commonwealth, 2006 WL 3386576. There is no published opinion on point.
[8]Richardson v. Commonwealth, 161 S.W.3d 327 (Ky. 2005) (Spivack permitted to testify to hymenal injury); Hellstrom v. Commonwealth, 825 S.W.2d 612 (Ky. 1992) (vaginal tears); Pevlor v. Commonwealth, 638 S.W.2d 272 (Ky. 1982) (vaginal tears).
[9] Hicks’ Adm’x v. Harlan Hospital, 21 S.W.2d 125 (Ky.App. 1929) (nurse failed to follow orders)
[10] Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997)(also a vaginal injury case).
[11] Daubert, 509 U.S. at 593 n. 20.
[12] Florence v. Commonwealth, 120 S.W.3d 699, 703 (Ky. 2003); see also, Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999) (recognizing RLFP and PCR types of DNA testing); and, Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999) (recognizing hair analysis, breath testing to determine blood alcohol content, HLA blood typing to determine paternity, fiber analysis, ballistics analysis, and fingerprint analysis).
[13] Frye v. United States, 293 F.1013 (D.C. Cir. 1923).
[14] David L. Faigman et al., Modern Scientific Evidence, Vol. 1, at 26 (2006-2007 Ed.).
[15] Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999)
[16] Gregory v. City of Louisville, 444 F.3d 725, 731 (6th Cir. 2006) (police officers and forensic experts not immune from §1983 actions by exonerated prisoners).
[17] Ragland v. Commonwealth, 191 S.W.3d 569 (Ky. 2006)
[18] Cf., dissent in Johnson, 12 S.W.3d at 267-268 (Justice Stumbo, joined by Justice Lambert)
[19] Ragland v. Commonwealth, 191 S.W.3d at 579.
[20] Ragland v. Commonwealth, 191 S.W.3d at 578.
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