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July 2, 2010

Public defenders in Kentucky challenging prosecutorial discretion in capital cases

As detailed in this local article, which is headlined "Kenton County case to be used as Ky. death penalty test," state public defenders in Kentucky are making a broad challenge to the exercise of prosecutorial discretion in death penalty cases.  Here are the basics:

Kentucky's public defenders have picked a Kenton County homicide case to challenge the constitutionality of allowing prosecutors to decide whether to seek the death penalty.

A person who commits a crime in one county may face death while a person who commits the same crime in another county may not face death.  That practice makes Kentucky's death penalty process "arbitrary and capricious," public defender Joanne Lynch argued Thursday in Kenton Circuit Court. She is representing Marion "Timmy" Lawson Parker III, 27, of Covington. He could be sent to death row if found guilty in the January beating and strangling of Shawn Davis, 28, of Covington.

While state law outlines what crimes are death penalty-eligible, there is no guideline to help individual prosecutors to decide when to apply it, Lynch said.  Under state law, the death penalty applies only in homicides in which an aggravating circumstance exists. Those include if the killing occurs during the commission of arson, robbery, burglary, rape or sodomy.

"As far as our research has shown, this is relatively a novel issue," Lynch said. "It has not been decided by the courts of the commonwealth."

Lawyers from the Kentucky Attorney General's Office traveled from Frankfort to defend the state's death penalty statute from the legal attack.  Robert Long of the attorney general's office said Lynch's argument is flawed because, if it was equally applied to all cases, prosecutors would lose all discretion in whether to decide to charge individuals....

Kenton Circuit Judge Gregory Bartlett said federal courts have a system to review all death penalty-applicable cases, even if the death penalty isn't sought. "They are arguing Kentucky may need a review of when death penalty cases are not sought," Bartlett said.

The judge declined, however, to weigh in on the debate. "What we have in essence here is a challenge to the legislation," Bartlett said. "I think this needs to be addressed, if not by the supreme court, then legislators."

By making the arguments now, Parker will be able to appeal on those constitutional grounds if he is ultimately found guilty of murder and sentenced to death.

July 2, 2010 at 11:29 PM | Permalink


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I agree that prosecutors should lose both discretion and immunity. These government worker, lazy, sinecure sitting, worthless people allow 90% of serious crimes to go unanswered (20+ million FBI Index felonies, 2 million prosecutions). They fail to prosecute vigorously criminals who victimize minority members, who barely have any protection from the government. When they prosecute, they know little about their cases, and make swift, assembly line, generic deals, often with charges totally unrelated to the crime charged. It is unknown how often they railroad innocent people. However, one can think of a minimum of 1 in 5, if the one exoneration in the death penalty for 5 executions is a rough indicator. This rate of error is appalling, and should be subject to torts, strict liability, and class certifications. Any left wing advocate urging the loosing of non-violent prisoners really has no idea if a prisoner is non-violent. The non-violent charge is a plea deal and may have nothing to do with the horrific crimes of the defendant.

The lawyers here may wish to confirm this. The police are really agents of the prosecutor. The failures of the police are totally the responsibility of this incompetent, lazy government worker. They do nothing about most violent crime, then harass productive people in a confiscatory bunko scheme. They are barely better than Mafia protection payment collectors.

Posted by: Supremacy Claus | Jul 3, 2010 12:55:32 AM

Greater specificity of indication for seeking the death penalty in a statute could decrease the racial disparity in the death penalty. Today, prosecutors devalue the lives of minority murder victims. They seek and get the death penalty less often than if the victim is white. These racist prosecutors should be forced to seek the death penalty at a rate higher than the current one. As a result of this devaluation and lack of protection, there is a six fold higher rate of murder victimization among black males. As stated above, the police are the agents of the prosecutor. Force the police to suppress crime in minority neighborhoods. Show up less than 3 hours after a call. Show up at all.

Prof. Berman does not like torts as a criminal policy remedy. However, a duty to a neighborhood to prevent violent crime, and a police and prosecutor malpractice suit when not doing so would be most helpful. To deter. The zanes on the Supreme Court have repeatedly found no duty of the police to an individual. Their duty is to the city. No one has tested a duty to a city subdivision.

Posted by: Supremacy Claus | Jul 3, 2010 8:48:00 AM

Doug, I have lived through the "no prosecutorial discretion" era in North Carolina and I don't think the public defenders want to go there.

Also, I think Ms Lynch is overlooking the fact that, following Ring v Arizona, death is no longer an aggravated sentence for First Degree Murder. Rather, death is one of two potential punishments for a more severe crime of Aggravated First Degree Murder.

In other words, conceptually I agree that pre Ring, a prosecutor couldn't expand the parameters of punishment for a particular crime on a case by case basis. To do so, in my opinion, violates the separation of powers clause because it is clearly established that defining the range of punishment for a crime is exclusively a legislative function. (I realize Mistretta is a bit of a variance on that) As I have said many times on this blog, I simply don't see how California's concept of "wobblers" passes constitutional muster.

Oyler v Boyles unequivocally gives prosecutors the discretion to choose whether to prosecute someone for a greater offense or a lesser offense. In Thomas' example in Apprendi, a prosecutor can decide whether to prosecute someone for petit larceny of grand larceny.

Does Kentucky require that a single aggravating fact which differentiates murder simpliciter from murder with one or more aggravating factor (Scalia's terms in Sattazahn) must be charged in the indictment or other charging document? If so, then I would agree with Lynch on Cole v Arkansas grounds. (A def cannot be tried for a crime he hasn't been charged with)


Posted by: bruce cunningham | Jul 3, 2010 11:29:58 AM

I meant to say "if not" in the last sentence.

In other words, in my opinion a charging document which charges just murder simpliciter, which is the intentional killing of an ordinary person, does not charge someone with a capital crime. If a def has not been charged with a capital offense then under Cole he can't be tried for a crime which carries death.

Next week I am filing a cert petition in scotus arguing that NC's practice of not including an allegation of an aggravator in the indictment prohibits the state from seeking a death sentence in the event of conviction of first degree murder because the def has not been charged with capital first degree murder. Which after Ring is a different and greater crime than simple first degree murder.


Posted by: bruce cunningham | Jul 3, 2010 11:39:17 AM

i've always said soverign immunity or even their amunity is a crock. we don't have a soverign. we have EMPLOYEES. Sorry a soverign was god in the good old ays....and god didnt' make mistakes. then it when to they were descended from god! again god don't make mistakes. then finally it was just appointed from god!. Sorry last one we had was king george! we ran him back to england where he belonged 200 years ago. what we LEGALLY have now are EMPLOYEES!

SORRY no employee of mine CAN LEGALLY have more power or authority then i can myself. That is totaly idiotic just how can i legally give someone a power i dont' posses myself!

Posted by: rodsmith | Jul 4, 2010 8:51:59 PM

The idea that immunity should stem from the sovereign's speaking with the voice of God is a psychotic delusion. Its proponents of today should be involuntarily committed and forced to accept injectable tranqilizers. These are dangerous paranoid schizophrenics. Once that delusion is rejected by every one but the cult indoctrinated lawyer dumbass, then full tort liability is mandatory to help improve the ridiculously unprofessional and incompetent job of judging. These judges are all lazy, worthless, government slackers sitting on cush sinecures. No lawyer should be allowed to sit on any bench, all being delusion believing dumbass victims of a criminal cult enterprise.

Posted by: Supremacy Claus | Jul 5, 2010 2:18:18 AM

What a clever loophole Mr. Cunningham has found. No doubt, due to this cleverness, many dangerous killers will escape the death penalty. With the foreseeability of planetary orbits, these will hurt others in the future. All the victims of his clients should be able to sue Mr. Cunningham for strict liability, since what he does in inherently dangerous, loosing vicious murderers into the general population of our prisons. To deter.

Posted by: Supremacy Claus | Jul 5, 2010 2:28:12 AM

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