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
The afternoon's keynote speaker, Stephen Bright, is a native of Boyle County who received both his undergraduate and law degrees from the University of Kentucky. Bright went on to become the director of the Atlanta-based Southern Center for Human Rights, where he remains president and senior counsel. He also has taught at Yale Law School for the past 20 years. Having represented capital defendants at both the trial and appellate levels throughout his career, Bright brought a more personal perspective. He began by asserting his view that there is an emerging consensus against the death penalty. Bright discussed the change of heart many prominent lawyers and politicians previously in favor of capital punishment have had. From Judge Dorothy Beasley, the lawyer who argued for the state in Furman v. Georgia, the case leading to the temporary cessation of the death penalty in 1972, to the former attorney general for the state of Virginia, Mark Earley, who, after participating in 15 executions, no longer is in favor of capital punishment, many respected and thoughtful lawyers have determined it is time to abandon the death penalty. Bright then noted the recent drop in the number of death sentences imposed by juries, as well as in the number of executions. Juries imposed 78 death sentences nationwide in 2012, and the number of executions dropped to the mid-40s. Bright highlighted a study revealing two percent of all counties in the United States account for the majority of death sentences, and 20 percent of counties account for the entire death row population. Turning his focus to Kentucky, Bright observed that 17 individuals were sentenced to death between 200006, but only four have received a death sentence in the past seven years. Kentucky has executed three people since 1976, two of whom declined to exercise their rights to appeal, "volunteering" for death instead. Seven of the 78 people sentenced to death have died of natural causes. Bright also focused on several issues raised by the Kentucky Assessment Team's report. Commenting on the "scandalously" low standard of legal representation we, as a society, have accepted, he noted there are no rich people on death row. "People who are well-represented don't get the death penalty," he remarked. He also observed, consistent with Professor Vito's results, that race still determines who gets the death penalty, more often than not. Although the Kentucky Racial Justice Act might minimize the risk of race playing a role, Bright raised the question of whether we are willing to tolerate the risk of race playing any role in the death penalty. Finally, he turned to the issue of mental illness, discussing the differences in culpability between someone with mental illness and someone without such deficits. The afternoon concluded with an esteemed panel of judges, legislators, professors, cabinet members and federal and state lawyers. Although the speakers did not agree on all of the findings and recommendations, there was the unmistakable consensus that if we are going to have a death penalty in Kentucky, we need, as state House Judiciary Committee Chair John Tilley so succinctly put it, "to get it right." Kentucky Assessment Team member and retired Supreme Court Justice James Keller articulated the general consensus that we need to correct the problems highlighted in the report in order to avoid executing people we should not be. Most panelists agreed that some solutions were, in the words of state Senate Judiciary Committee Chair Whitney Westerfield, "no duh" fixes. For example, no one openly questioned that evidence should be retained for the entirety of a defendant's sentence. The panelists also seemed to agree that interrogations should and could be recorded. Jefferson County Commonwealth Attorney Thomas Wine reflected that law enforcement in his jurisdiction record every interrogation, an approach he endorsed. Many seemed to concur with a suggestion by United States Attorney Kerry Harvey that the state create a centralized prosecution system, such as the one used in the federal system, to set guidelines, oversee pursuit of the death penalty across the state, and ensure consistency in the exercise of discretion. The report aims to bring such uniformi- ty and standardization to the legal process, from the collection of data to the final sentencing, according to Kentucky Assessment Team member and retired Supreme Court Justice Martin Johnstone. The report was released in 2011, but now, two years later, the state has made few steps toward effecting the proposals contained therein. (One piece of legislation, House Bill 41, passed in the 2013 session of the Kentucky General Assembly, does aim to allow increased access to DNA testing.) But the concern panelists repeatedly raised is the cost of implementing the recommendations. Supporters of the assessment team's report argue that many of the problems could be solved without significant cost. As Kentucky Assessment Team member and University of Kentucky College of Law Professor Allison Connelly stated in response to a question from the audience, "I don't think you can put a dollar sign on what the Constitution requires." Predominantly, the panelists seemed to embrace the view that problems with Kentucky's death penalty need fixing. "We have a constitutional reality," Justice and Public Safety Secretary J. Michael Brown confirmed, but "we struggle with a constitutional application of that reality." According to a poll conducted by the ABA and provided to attendees of the forum, a solid majority (62%) of likely voters statewide support a temporary halt on executions to allow for problems with the system to be identified and corrected. That support, the ABA poll indicates, is consistent across the state – a majority of men, women, urban, suburban, rural, Republican, Democratic and Independent voters all favor Kentucky "get[ting] it right." Based on their comments during the question and answer period, attendees appeared to agree. Cortney E. Lollar is an assistant professor at University of Kentucky College of Law who specializes in criminal law, criminal procedure and evidence. 27 Professor Sandys ran the Cooper's Jury Instructions for death penalty cases through commonly used tests of readability and ease of reading. She found that most of the jury instructions relevant to death sentencing require more than a college education to understand, striking in a state where approximately 20 percent of the population has a college degree. Similarly, she found the ease of reading shockingly low, usually ranging between 30 and 40, but going as low as 15 on a scale of 1-100, with 60-70 being the ideal. Professor Sandys recommended the state hire a linguist to work with judges, prosecutors, defense attorneys and former jurors in crafting jury instructions that are both legally accurate and easier to understand. The result would be greater confidence in juror findings and fewer reversals. B&B; • 1.14