Tuesday, June 7, 2016

Free in Kentucky: Rapist Brock Turner 6 Months in Jail

Free in Kentucky: Rapist Brock Turner 6 Months in Jail: I don’t like to talk bad about judges.   Not because I don’t have strong opinions about some judges.  I do.  And not because I’m not a ...

Rapist Brock Turner 6 Months in Jail

I don’t like to talk bad about judges.  

Not because I don’t have strong opinions about some judges.  I do.  And not because I’m not a loudmouth.  I am.  The reason I don’t like to speak ill of those on the bench is simply that badmouthing judges can really backlash on an opinionated, loudmouth lawyer like myself.  But I will make an exception, because I think reasonable minds can all agree that Santa Clara County Superior Court Judge Aaron Persky really made a horrible, horrible call this past week when he sentenced Rapist Brock Turner to only 6 months of jail time and probation.

Brock Turner raped an unconscious woman behind a dumpster.  That is not my opinion.  It’s a fact.  He was convicted of three counts of sexual assault.  Two guys stopped Turner because it was obvious that the woman was unconscious.  The crimes he committed are about as heinous as crimes come.  And it’s unforgiveable. 

Let’s talk briefly about some crimes that poor people commit, and the years in prison they serve for those crimes.

In Kentucky, there are several victimless crimes that can get you sent to prison.  The first that comes to mind is using drugs.  Making your own drugs, growing marijuana plants, and even the simple possession of drugs can all be felony crimes.  Notwithstanding some exceptions for presumptive probation, “getting high” in Kentucky can get you WAY more time behind bars than Rapist Brock Turner will ever see.  In fact, making your own meth, which is obviously a bad idea – but still a victimless crime, can get you 20 years in prison.  

Theft - although it involves a perpetrator and a victim - also comes to mind.  If someone steals an item worth over $500, that’s a felony.  You can get 5 years in prison for Theft by Unlawful Taking.  And anyone with half a brain will tell you that, even though theft is a crime that inherently involves a perpetrator and a victim, raping another person is a far more egregious action than taking someone’s iPad.

If Rapist Brock Turner was a poor black criminal defendant, his swimming hobby would never have been reported.

If Rapist Brock Turner was a poor black criminal defendant, you’d see his original mugshot in stories instead of the cleaned up frat version.

If Rapist Brock Turner was a poor black criminal defendant, he would have gotten years upon years in prison for rape.

One of the factors for deciding whether an offender needs prison time is whether they pose a risk of danger to society.  In fact, it’s one of the factors Judge Persky “considered” stating bluntly, “I think he will not be a danger to others.”  Well, if the best predictor of future behavior is past behavior, Judge Persky is flat wrong.  Sex offender recidivism statistics are staggering; 43% are likely to be re-arrested and 5.3% are re-arrested for another sex crime within 3 years of release from prison (according to the DOJ).

But you don’t have to know a single statistic to know “Rapists are dangerous to others.”

And as a side note – sure, it’s important to remind young people that getting blackout drunk is a bad idea.  In fact, it’s ok to say that bad things happen when you get blackout drunk.  But if you even insinuate that girls get raped because of alcohol, you’re contributing to the problem.  Rape happens because of Rapists.

Jails and prisons are overcrowded.* 
We spend more money to house someone in prison than to educate them.**  
At a time when Judges need to make smart decisions about which convicts do serious prison time, offenders with clear victims (who clearly suffer) need to be the ones serving that serious prison time.  That’s why Judge Persky did wrong.

* http://www.wdrb.com/story/31809242/release-louisville-metro-corrections-filled-to-capacity-some-inmates-to-be-moved-to-unused-jail-built-in-1950s; http://www.newsweek.com/unconstitutional-horrors-prison-overcrowding-315640; https://www.youtube.com/watch?v=_Pz3syET3DY

** http://money.cnn.com/infographic/economy/education-vs-prison-costs/

Sunday, June 5, 2016

Free in Kentucky: Murder, Assault, Insanity, Incompetency, Extreme E...

Free in Kentucky: Murder, Assault, Insanity, Incompetency, Extreme E...: The mental state of a criminal defendant can seriously affect the outcome of a criminal case.  In fact, it can be determinative.  Mental st...

Murder, Assault, Insanity, Incompetency, Extreme Emotional Disturbance

The mental state of a criminal defendant can seriously affect the outcome of a criminal case.  In fact, it can be determinative.  Mental state is so important that the exact same action – killing another person, for example – can be one of several different types of homicide charge, or no crime at all, depending on the mental state of the person who killed another. 

Often, mental state will be a necessary part of the prosecution’s case.  The thoughts of the accused will be used as a weapon against the criminal defendant in front of a jury.  Intent, wantonness, knowledge and recklessness will often be requirements for the prosecution to prove in order to obtain a conviction.  But occasionally the mental state of my client can be used as a shield.  That’s what our conversation is about today. 

The classic and often heavily scrutinized example of using mental state as a shield is the “Insanity” defense.  Essentially, the defense is that the criminally accused cannot be held responsible for their actions due to psychiatric illness.  The first documentation of insanity as an exemption for criminal activity dates back to the Code of Hammurabi in 1750 BC.  At least, I assume that’s correct.  That may or may not be some stuff I just read on Wikipedia.*

In Kentucky, our standard for the Insanity defense is codified in KRS 504.020, and reads, “A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental illness or intellectual disability, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”  Boiled down, it means that a person is “insane” for the purpose of eluding criminal responsibility if they are mentally ill or disabled, and they either 1) cannot understand that what they are doing is against the law, or 2) they are unable to control their actions.  If an individual can prove they were insane at the time of the alleged criminal activity, they cannot be found guilty of a crime.**

“Incompetency” is different from “Insanity.”  If a person is not insane for the purpose of criminal prosecution, it’s possible that they still may not be competent to stand trial (and vice versa).  If you murder someone on Friday, and on Saturday you have an automobile accident that leaves you severely mentally handicapped, it’s very possible that you may have been completely sane for the purpose of criminal liability but incompetent to stand trial for those criminal actions.  KRS 504.090 governs the incompetent, and states, “No defendant who is incompetent to stand trial shall be tried, convicted or sentenced so long as the incompetency continues.”

When medical professionals evaluate a person’s “Competency to stand trial” they take into account a lot of different factors, including understanding of the charges against them, appreciation of the penalties, appraisal of defenses, appraisal of the function of courtroom personnel, understanding of court procedure, ability to participate and assist in their defense, capacity to testify, and many more.  If a Judge determines (after hearing the medical evidence) that a defendant is incompetent to stand trial, they must also determine whether the defendant is likely to regain competency (with treatment, medication, etc.).  Assuming the defendant is incompetent and not likely to regain competency, the charges against them may be dismissed.***

If someone is sane, and also competent, that doesn’t mean that an agitated mental state at the time of the criminal conduct won’t be beneficial to their defense.  If the crime alleged is murder or assault, the Defendant could have an “extreme emotional disturbance” (EED) defense.  The classic example of this sort of shenanigans is: “Man comes home from work to find wife in bed with Friend.  Man flies into a rage and kills wife and friend.”  This is the classic example of extreme emotional disturbance. 

For a Murder charge, the prosecution needs to prove the LACK of extreme emotional disturbance.  In the Murder statute, KRS 507.020, it states that a person is guilty of Murder when “(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime[.]”  So, if the prosecution cannot prove that someone intentionally committed murder WITHOUT the presence of EED, the defendant’s charge may be reduced to Manslaughter in the First Degree.

Concerning a charge of Assualt, the burden would be on the Defendant to establish EED as a defense.  KRS 508.040 governs Assault under extreme emotional disturbance, and states, In any prosecution under KRS 508.010, 508.020 or 508.030 in which intentionally causing physical injury or serious physical injury is an element of the offense, the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020.”

Like the result in a homicide case, Assault committed under EED would reduce the severity of the crime committed.  Specifically, an assault committed under the influence of extreme emotional disturbance is a Class D felony when it would constitute an assault in the first degree or an assault in the second degree if not committed under the influence of EED; or a Class B misdemeanor when it would constitute an assault in the fourth degree if not committed under the influence of EED.
In short, the mental state of someone who injures or kills another person in Kentucky can be absolutely crucial to their case.  In some cases, it can make or break the prosecution’s case against them.  Insanity, Incompetency, and Extreme Emotional Disturbance may be useful in defending a Homicide or Assault charge in Kentucky.

Homicide and Assault charges are extremely serious.  In fact, they can be as serious as charges come in Kentucky.  If you’re charged with Murder, Reckless Homicide, Manslaughter or Assault in Kentucky, call 502-618-4949 for a free consultation with Attorney Greg Simms.

*It is.
**People who are not guilty by reason of insanity can still be sent to a mental institution by a judge.

***Again, there’s the possibility of involuntary commitment to a mental hospital.

Friday, January 15, 2016

Law is Changing - Get Your DUI Expunged NOW!

I’ve never understood people who want to make expungements more difficult.  By nature, we’re talking about people who made a mistake, and years have passed – during which time they have made better life decisions and kept their noses clean.  Why try to make things more difficult for them??? 

Second chances.  WWJD and whatnot.

On January 5th, 2016, House bill 13 was introduced and passed to the House Judiciary Committee.  The bill will make expungements more difficult for Kentuckians with blemished records.  So it’s time to act. 

If you’ve been convicted of a D.U.I. five years ago (or more), this news is extremely important for you.  HB 13, as it reads, amends KRS 189A.010(5)  [Your Kentucky law concerning D.U.I conviction penalties] to allow the court a longer “look-back” period to examine one’s D.U.I conviction history, to determine the severity of one’s punishment. Currently, KRS 189A.010(5) provides that any D.U.I conviction within a five-year period from a previous D.U.I conviction, is subject to increased sanctions. House Bill 13 doubles that window of time to ten years. This means if you’ve been convicted of D.U.I, the state will hold that charge over your head for ten years and increase the sanctions for a subsequent D.U.I conviction.

THIS MEANS that if you were convicted of a D.U.I.  charge five or more years ago, you need to expunge that charge from your record, IMMEDIATELY.

If you were convicted of a D.U.I.  or any other misdemeanor offense, five or more years ago, and wish to have that charge cleared from your record, contact Attorney Greg Simms,
at (502) 618-4949, or by cell phone text to 270-402-4581.

See the text of the bill at https://legiscan.com/KY/bill/HB13/2016

Thursday, December 17, 2015

Free in Kentucky: Published KY Supreme Court Roadblock Decision!

Free in Kentucky: Published KY Supreme Court Roadblock Decision!: Today we got a beautiful piece of artwork delivered by the Kentucky Supreme Court in the Commonwealth v. Billy Cox , a published opinion ch...

Published KY Supreme Court Roadblock Decision!

Today we got a beautiful piece of artwork delivered by the Kentucky Supreme Court in the Commonwealth v. Billy Cox, a published opinion changing roadblock law in this great Bluegrass State of ours.

This case was one of the very first cases I tried as a first year lawyer.  So it’s been about eight years in the making.  And I lost the trial, so I’ve had a fire burning to turn that loss into a “W.”  Now that’s happened.  Also, I argued the case against Joe Mattingly – the Marion County Attorney, who is an exceptionally bright individual and a class act.  So it was a pleasure to work the case.

My argument was this: When roadblocks are constructed by police, they need to be done to take the discretion out of the hands of the officers in the field.  That means the start and stop times should be determined in advance, so the cops performing the roadblock have no choice in the matter.  For example, “Here comes a white guy…here comes a white guy….here comes a white guy…here comes a Mexican! The roadblock starts now.”  Also, there were some noncompliance issues with this particular roadblock.  For examples, the officers weren’t wearing safety vests, and no advance warning signs were placed out before the roadblock.

To be honest, I didn’t concentrate really heavily on the advance warning issues.  Because under previous Kentucky caselaw, courts kinda didn’t give a damn about that.

They will, now.  Which is nice.

Essentially, the Supreme Court did take some issue with the start and stop times (“undetermined durations may be symptomatic of broad discretion” p. 8).  But more importantly, and to my pleasant surprise, the Court found a huge problem with the failure to provide advance notice of the roadblock. 

The concurrence provides some spectacular language, which I believe, boldly changes roadblock law in Kentucky.  Previously, advance warning signs (like “Roadblock Ahead”) were only suggested and nearly never used.  However, they will now be absolutely necessary for a roadblock to be considered reasonable.

And, crucial to this determination, is the reasoning that roadblocks need to be a CONSENTUAL encounter with police.  THAT – is big news.  This is a major change for Kentucky caselaw.  Here are some gems from the concurring opinion on that issue:

“At the heart of that reasoning is the fact that with the presence of a sign warning of a road block ahead, if a citizen proceeds to the roadblock, he has functionally consented to the ensuing encounter with the police. It is this functional, or implied, consent that allows the roadblock stop to be reasonable despite the absence of a warrant or any individualized, articulable suspicion of criminal activity.” p. 12.

“By the same token, if proceeding to the roadblock serves as consent, then turning away from the road block is simply not consenting, and is the equivalent of requiring law enforcement to get a warrant if they wish to stop your vehicle, absent some other qualifying fact such as observable (plain-view) illegality. There is significant clarity in this reasoning that leads to a further conclusion: the purpose of the restrictions and the notice requirement is to allow a citizen to make an informed choice about whether he submits himself to the roadblock. What other purpose is there for a sign warning that a road block is ahead? It is ludicrous to say that the warning is for informational purposes only. The driver will have the information soon enough when he comes upon the road block. And how does simply knowing that a road block lies ahead help the driver? Obviously people are given information so that they may do something with it. Regarding a road block, that information is for the purpose of allowing a citizen to choose not to consent to a warrantless seizure.” p. 12-13.

Essentially, the law of Kentucky is now that you can avoid a roadblock if you don’t want to engage with police officers.  Previously, that was not allowed – and your avoidance of the roadblock was considered, in and of itself, to be reasonable suspicion to pull you over.

It’s a pretty case.  And if you’re a law nerd like me…or if you just give a damn about your individual liberties…check out the full opinion at: