ABA Study of Kentucky's Death Penalty Finds Serious Deficiencies

On Wednesday, December 7, 2011 the Kentucky Association of Criminal Defense Lawyers called for a moratorium on further executions in Kentucky until state authorities address serious issues raised in a comprehensive ABA-based study of Kentucky's implementation of the death penalty.

KACDL called upon the Governor, the Attorney General, and other Kentucky criminal justice policy makers to fully implement the American Bar Association (ABA) Kentucky Assessment Team on the Death Penalty's recommendations and to institute a moratorium on executions until the ABA Kentucky Assesment Team's recommendations are fully implemented. Governor Beshear's office said his administration would review the report.

You can download a copy of the report from the American Bar Association's website here. The 520-page report is 5.6 MB in PDF format.

Read the KACDL Press Release of December 7, 2011

KACDL Resolution in Support of Implementation of Reforms Recommended by the ABA Assessment Team

KACDL Letter to Kentucky Governor Steven L. Beshear

KACDL Letter to Kentucky Attorney General Jack Conway

Kentucky's Public Advocates Call for a Moratorium on Executions

KACDL has submitted to the General Assembly additional recommendations for the reform of Kentucky's criminal laws.

In 2010 Kentucky lawmakers created the Task Force on the Penal Code and Controlled Substances Act. The General Assembly asked the Task Force to recommend changes to the state’s penal code that would control the growth of Kentucky's prison population without sacrificing public safety. Along with co-chairs Sen. Tom Jensen (London, Senate District 21) and Rep. John Tilley (Hopkinsville, House District 8), Task Force members were Chief Justice John D. Minton, Jr., Secretary of the Justice and Public Safety Cabinet J. Michael Brown, LaRue County Judge/Executive Tommy Turner, former prosecutor Tom Handy and KACDL member J. Guthrie True.

The task force conducted an extensive review of Kentucky’s corrections data to identify factors driving increases in the state’s prison population and related costs. The task force’s recommendations resulted in House Bill 463 which was signed into law on March 3, 2011.

Read the text of HB 463.

Read the Report of the Task Force.

As the Task Force on the Penal Code and Controlled Substances Act begins its new interim meeting period, its members sought suggestions regarding needed changes in Kentucky's criminal laws from public officials and other persons interested in the criminal justice system.

Under the leadership of Bob Lotz and Ernie Lewis, KACDL forwarded its recommendations to the Task Force in June of 2011.

READ KACDL'S JUNE, 2011 RECOMMENDATIONS TO THE PENAL CODE TASK FORCE.

UPDATE! On Friday, October 7th, the Kentucky Association of Criminal Defense Lawyers (KACDL), the Kentucky Department of Public Advocacy (DPA) and the Lexington Police Department made follow-up presentations to the Kentucky Legislature's Task Force on the Penal Code and Controlled Substances Act outlining their experiences under the changes to the criminal law embodied in HB 463, and making additional recommendations for change. Links to each of their presentations follow below.

KACDL'S OCTOBER, 2011 PRESENTATION

DPA'S OCTOBER, 2011 PRESENTATION

LEXINGTON POLICE DEPARTMENT'S OCTOBER, 2011 PRESENTATION

Please review KACDL's recommendations and discuss them with your representatives. Local contact with lawmakers is key to progress.

WHERE ARE YOUR ROOTS?

I grew up in Ludlow in Northern Kentucky and graduated from Thomas More College and Washington D.C.’s Catholic University of America Law School. I took a law clerk job in Frankfort with the public defender’s office in 1975 and fell in love with that work of helping clients.

WHAT LED YOU TO PURSUE A CAREER IN CRIMINAL DEFENSE AND PUBLIC SERVICE?

My father wanted to be a lawyer but was unable to achieve that goal. He and my mother were very engaged in the community and instilled in me a spirit of helping those in need. Becoming a public defender fits well my understanding of a way to help others.

WHAT HISTORICAL FIGURE DO YOU MOST ADMIRE AND WHY?

I attended a Jesuit high school and was introduced to Daniel Berrigan at an early age. I admire his decisions to put what he believes into practice, even to the point of being imprisoned. I want to have that type of conviction for what is important. Berrigan said, “It's not going to be easy to change things.” It’s always nice to have the obvious so clearly proclaimed.

WHAT BOOK OR MOVIE HAS MADE A LASTING IMPRESSION ON YOU?

Gerry Vito of the University of Louisville did a leadership program and showed Gettysburg. There is a scene in it where U.S. Colonel Joshua Chamberlain is told that his unit will be absorbing a group of mutinous men from a Maine regiment. Chamberlain is authorized to shoot them if necessary. Instead, Chamberlain offers his comrades food, tells them he won’t shoot them and inspiringly tells them that they are in it with him for a noble cause. His leadership had a profound effect on the men and it has had a profound effect on me as a criminal defense attorney. I am also fond of A Thousand Clowns with Jason Robards, a story about man against the state with a human being at stake in the battle.

IF YOU COULD CHOOSE A HOBBY WITHOUT CONCERN FOR TIME OR EXPENSE, WHAT WOULD YOU DO?

After listening to Bob Lotz’ CD Stewball and hearing him play live, I’d like to learn to play the harmonica.

YOU INVITE SIX VIPS HOME FOR DINNER AND DISCOVER YOU MUST COOK IT YOURSELF. WORKING FROM SCRATCH, WHAT MEAL DO YOU PUT ON THE TABLE?

Six is too many, but salmon, asparagus, homemade ice cream, and a nice cabernet; or perhaps better yet, some Cincinnati chili.

TURNING TO PROFESSIONAL MATTERS, HOW/WHY DID YOU BECOME PRESIDENT OF KACDL?

I was asked to become President of KACDL by people I admire. I feared I did not have the time, but I am devoted to the organization and know it is essential to ensuring a criminal justice system for fellow citizens, so I reluctantly agreed and have not regretted doing so.

WHAT IS THE VALUE OF KACDL MEMBERSHIP TO CRIMINAL DEFENSE PRACTICTIONERS?

People make rules and laws that determine how effectively we can represent our clients. Those rules can be reasonable or unfair; they can honor our Bill of Rights or they can undermine them. As KACDL members, criminal defense attorneys do together what none of us can do individually: we influence the rules and laws that set the playing field.

HOW DOES KACDL WORK TO CHANGE THE RULES AND THE LAW?

We have a legislative agent who acts as a resource on a year round basis for the General Assembly on criminal justice issues, and who seeks to promote the rights and interests of the citizen accused. In that respect, KACDL has a significant influence on criminal law legislation that would not otherwise exist on behalf of our clients. During legislative sessions, KACDL members receive regular reports on the status of pending bills, and they are encouraged to be active in the legislative process. Member involvement has made a real difference in the quality and fairness of Kentucky’s justice system.

We also propose improvements to the Rules of Criminal Procedure (see attached) and three KACDL members serve on the Kentucky Supreme Court Rules Committee: Sam Manly, Dan Goyette and myself.

ARE THERE OTHER BENEFITS TO MEMBERSHIP?

Absolutely! After every legislative session, KACDL offers CLE to explain changes in the criminal code and how those changes impact legal practice. DUI experts Wil Zevely, Jerry Cox, Tucker Richardson, Fred Peters, and Jim Cox conduct marvelous DUI seminars each year. Members who face contempt charges may be represented by KACDL’s Strike Force, headed by Lexington’s Russ Baldani. Members weigh in on important legal issues through our Amicus Committee chaired by Louisville’s Larry Simon, the Rules Committee chaired by Corbin’s David Hoskins, and the Legislative Committee headed by Covington’s Bob Lotz. KACDL members have the unique and valuable opportunity of networking via e-mail and brainstorming issues relating to the practice of law. And in the fall of every year KACDL presents the premier criminal law seminar in the region. These are just some of the many benefits of membership.

For lawyers who take criminal defense seriously, KACDL provides high value for a modest annual membership fee.

We thank Ed for taking the time to answer our questions, and we look forward to hearing his harmonica CD should he ever find the time to make one.

Professor Jonathan Turley Visits KACDL at the KBA Convention

Following his presentation to the Kentucky Bar Association, "The Criminalization of America: The Expanding Use of the Criminal Code to Address Bad Conduct," Professor Turley met with KACDL officers and members at the Association's display booth.

Left to right are KACDL's President-Elect Frank Mascagni, Director-at-Large and Legislative Agent Ernie Lewis, President Ed Monahan, Professor Turley, Seventh District Vice-President and Kentucky State Senator Robin Webb, and Director ex officio Dan Goyette.

Professor Turley was the keynote speaker at the 22nd Annual KACDL Conference and Criminal Defense Seminar in 2008. He addressed the KBA Annual Convention each of the past two years.

Professor Turley is a nationally recognized legal scholar and professor at the George Washington University School of Law. He is also a practicing criminal defense attorney. He is a frequent witness before the House and Senate on Constitutional issues, and he has written columns on Constitutional law for the New York Times, Washington Post, Los Angeles Times, USA Today and The Wall Street Journal. Professor Turley's website was voted the top Legal Theory blog by the ABA Journal in 2008. Visit Professor Turley's blog at jonathanturley.org

If you are old enough to remember the Iran-Contra hearings,

you recognize the title of this post. Those are the immortal words of Brendan Sullivan the lawyer representing Oliver North. When congressmen complained that Sullivan was objecting too much to their questions to his client, Sullivan said, "I'm not a potted plant. I'm here as a lawyer. That's my job.” I was in law school at the time of the hearings. I remember laughing and cheering when he said that to a pompous lawmaker. People don't understand what criminal defense lawyers do. They may think our job is to play along with the system so that the minimum technical requirements of the law are met before we convict someone. They may think that we are double-breasted-suit-wearing slick talkers. If it seems like we are the only ones slowing down the wheels of justice that are running over someone, that is probably right.

I tell my clients that I am the only person in the entire system working for them. The prosecutor is actively trying to put them in jail or prison. The police are certainly trying to accomplish that. Probation officers would rather you do time than be on probation. Bailiffs usually are wanting the person to plead so they don't have to keep bringing them to court. And of course judges want to clear their backlog of cases from their docket. The criminal defense attorney is the only person asking, "Was there a crime committed and can the state prove it?" This slows down the jail express. We get asked all the time, "Why won't your guy plead?" I don't recall ever being asked, "Can the government prove your guy guilty beyond a reasonable doubt?"

The point is, I'm not just a potted plant! What self respecting lawyer would want to be just the guy who tells you to plead guilty or everyone will get upset with me. As a criminal defense lawyer I have work to do. I strive to treat clients the way I would want to be treated if I were in their position. I would want more than just a potted plant.

Doug Weathers
Hendricks, Weathers & Jefferson
Fort Worth, Texas
http://hwlawfirm.blogspot.com