The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/245872
BAR NEWS KENTUCKY CRIMINAL LAW EXPERTS CALL FOR REFORM By: Cortney E. Lollar a defendant faces the death penalty is therefore often a function of the location where the person is charged. The Second Annual Forum on Criminal Law in the Commonwealth of Kentucky, hosted this year by the University of Kentucky College of Law, focused on a 2011 ABA report on the death penalty in Kentucky. Two years of extensive research by a team of Kentucky legal experts, including law professors from all three state law schools, retired Supreme Court justices, and other prominent lawyers from the community, led to the findings and recommendations around which the forum centered. The team members were chosen due to their eminent reputations in the state, and were not asked their views on the death penalty prior to participating on the Kentucky Assessment Team. Professor Linda Ewald, a retired University of Louisville Louis D. Brandeis School of Law professor and co-chair of the Kentucky Assessment Team, and Sarah Turberville, the ABA representative who helped spearhead the study, began the afternoon by presenting nine of the team's key findings: • A survey of jurors found a high rate of juror confusion in the standard jury instructions given during death penalty sentencing hearings. Many failed to understand the instructions critical to deciding whether a defendant should be executed. • Kentucky has a high error rate in death penalty cases. Of the 78 people sentenced to death in Kentucky since the death penalty was reinstated in 1976, 50 have had a death sentence overturned on appeal, an error rate of 64 percent. • Kentucky inadequately retains evidence in criminal cases. Evidence is not required to be retained for as long as a defendant remains incarcerated, diminishing the effectiveness of a state law that allows post-conviction DNA testing prior to execution. Such lost or missing evidence prevents the exoneration of innocent people and can prevent apprehension of the guilty. 26 • A lack of uniform standards on eyewitness identifications and interrogations, two of the leading causes of wrongful convictions, means that many law enforcement agencies across the state inadequately protect against wrongful convictions. The ABA recommends recording all confessions, a much easier task in the age of smartphones, and compliance with best practices for eyewitness identifications. • The death penalty in Kentucky is applied inconsistently, as there is no mechanism in place to guide prosecutors in deciding when to seek the death penalty. Practices vary dramatically across the state. Kentucky has 57 Commonwealth attorneys. Some of them seek the death penalty in every death-eligible case, while others rarely seek it. Whether B&B; • 1.14 • Kentucky public defenders are overworked, understaffed and underpaid. Kentucky public defenders handling capital cases have caseloads that far exceed the national average, and salaries that are 31 percent below those of similarly experienced attorneys in surrounding states. The state public defender budget is less than half that of the state's combined prosecutorial agencies, even though the public defender office represents individuals prosecuted by all three agencies, including the vast majority of cases in circuit court. During the period from 2000-10, the death penalty was more than three times as likely to be imposed when the victim was a woman than when the victim was a man. Race also played a dominant role. When the defendant was black and the victim a white woman, plea agreements were significantly rarer. Professor Vito found that juries preferred life without parole to death, imposing death less than six percent of the time the sentence was presented as an option. Finally, Professor Vito commented on the lack of data collection by the state. Noting that police departments he has advised were required to collect data on race and did so quite effectively, Professor Vito suggested if the police can do it, so can the Kentucky justice system. The collection of data would help to determine where the problems lie so they can more effectively be corrected. • Many defense attorneys who have represented capital defendants were unqualified to do so. At least 10 of the 78 people sentenced to death in Kentucky were represented by defense attorneys who were subsequently disbarred. There are no statewide standards governing the qualifications and training of attorneys appointed to handle these cases. • Kentucky does not have adequate protections to ensure that death sentences are not imposed or carried out on a defendant with mental retardation or mental illness. Kentucky's statutory definition of mental retardation creates a maximum IQ of 70, which does not comport with modern scientific understandings. • Kentucky does not collect data on the administration of the death penalty in the state, making it impossible to assess proportionality, as required by the U.S. Constitution, or to guarantee the system is operating fairly. These key findings were the focus of the afternoon's discussions. Following Professor Ewald and Turberville's remarks, two social scientists presented data further illuminating a few of the issues highlighted by the Kentucky Assessment Team. Professor Gennaro Vito, from the Department of Justice Administration at the University of Louisville, presented results from a survey of death-eligible homicide cases in Kentucky, underscoring the lack of uniformity in the imposition of the death penalty. State Rep. John Tilley of Hopkinsville, left, and state Sen. Whitney Westerfield, also of Hopkinsville, participate in a panel discussion on the findings and recommendations of the ABA Kentucky Death Penalty Assessment Team Report. Rep. Tilley serves as chair of the House Judiciary Committee; Sen. Westerfield serves as chair of the Senate Judiciary Committee. Professor Marla Sandys, a Ph.D. recipient from the University of Kentucky who now teaches in the Department of Criminal Justice at Indiana University, is an expert on capital jurors. Her findings support those articulated in the Kentucky Assessment Team's report. She conducted a study of jurors who served on capital juries in Kentucky. After extensive interviews, she learned many jurors were quite confused about the instructions they were given. Upward of 40 percent of jurors believed the law required them to impose the death penalty if the evidence proved either that the defendant's conduct was heinous, vile or depraved, or they believed the defendant would be dangerous in the future. More than 79 percent of jurors did not understand that mitigation evidence does not have to be proven beyond a reasonable doubt or be found by a unanimous jury, and more than 11 percent misunderstood the standard for aggravation.