DPA 2011 Annual Report - Department of Public Advocacy

Appeals Branch Attorney Corrects 15 Year Old Mistake: When
Anthony Nash served out his sentence for a minor sex offense in 1997,
he was mistakenly told he had to register as a sex offender. Like many
sex offender registrants, he struggled to find work and maintain a
home, and so he was prosecuted and found guilty of misdemeanor
charges of failure to register two times before 2006. In October 2007,
Mr. Nash entered a conditional guilty plea to a felony charge of failure
to register, and was given a 10-year prison sentence. He was later
convicted of an additional failure to register charge, which resulted in
five additional years being added to his sentence.
Appeals Branch attorney, Samuel Potter, noticed the error while
representing Mr. Nash in his appeal from his conditional guilty plea,
and immediately informed the Court.
On May 19, 2011 the Kentucky Supreme
Court issued a decision vacating his
conviction, sparing Mr. Nash a possible
10 additional years of wrongful
incarceration.
The opinion in Commonwealth v. Nash,
338 S.W.3d 264 (Ky. 2011) makes clear
that this complicated issue was
overlooked by many capable people
before Mr. Potter discovered the claim.
In a dissenting opinion, Justice Venters
noted that:
What seems to be readily apparent to
us now escaped the attention of his
lawyers, the prosecutors, and the
judges three times. If true, that must
serve as a sobering reminder to all
segments of the criminal justice
system, including this Court, how easy
it is to overlook the obvious, and how
quickly one can fall through the cracks in the system.
On this point we can all agree - Mr. Nash's situation is a reminder of
the importance of insuring that competent counsel, with the time and
resources to achieve a thorough understanding of the often
complicated issues in a case, is essential to preserving our
Constitutional and statutory protections. Thanks to Mr. Potter and the
good work of Herb West with the Lexington trial office, Mr. Nash is
now free and off the sex offender registry for good.
Post-Conviction Branch Attorneys Protect Defendants
from Poor Lawyering on Appeal: Kentucky criminal
defendants are entitled to an appeal, and entitled to an
attorney for that appeal, bur for many years they have not been
entitled to ensure that their attorney on appeal provided
effective assistance of counsel. Mistakes rendered by the
attorneys would not be fixed by state courts, because of a
Kentucky Supreme Court ruling that held the state courts would
not consider claims of ineffective assistance of appellate
counsel. This changed this year when, after many years of
litigation, attorneys in the Post Conviction branch successfully
resolved the issue in Hollon v. Commonwealth. In Hollon, the
Supreme Court of Kentucky reversed its prior ruling and
recognized that litigants are entitled to the effective assistance
of appellate counsel not only in perfecting the appeal, but as
to the merits brief itself. In addition to recognizing the claim,
the Court established a procedure for litigating a claim of IAAC.
This is a dramatic shift in Kentucky law and one that is not only
consistent with federal law, but one that fits within Kentucky's
statutory scheme of post-conviction litigation.
Post-Conviction Branch Manager Marguerite Thomas (now retired) plays the role of
emotional victim in a training exercise for the Kentucky Innocence Project.
Commonwealth of Kentucky 14 Department of Public Advocacy
Lexington Trial Attorney Erica Roland (L), and La Mer Kyle-Griffiths (R)
(Juvenile Post-Disposition Branch Manager) advocate for a client.
Juvenile Post-Disposition
Branch's Truancy Court
Initiative Keeps Status
Offenders out of Jail:
Kentucky detains more
status offenders than almost
anybody else in the country.
The reasons for this are
many, but some of the
issues are that alternatives
to prosecution of truancy
are not well utilized, and
court procedures are often
unclear. JPDB worked
closely with the trial attorneys in the Lexington
Trial Office to attack these issues, with excellent
results.
Working closely with JPDB, Lexington trial
attorneys met with local court officials and others
to identify alternatives to prosecuting status
offenders in court. Meanwhile, JPDB also waged
a campaign in the appellate courts challenging
this practice, receiving favorable rulings in N.K.
v. Commonwealth, 324 S.W.3d 438 (Ky.App.
2010) and C.F.C. v. Commonwealth, 2010 WL
4026099 (Ky.App. 2010). JPDB and the Lexington
trial attorneys worked to implement these
decisions almost immediately, with additional
follow-up meetings, as well as almost-daily
phone calls and e-mails passing back and forth.
The results of this collaboration have been
striking. Children being sent to jail for contempt
became less of a weekly reality, and eventually,
ceased to happen at all. New cases slowed, so
that a court that which had been running 12
hours per day now was only hearing a couple of
cases each day. Kids and families have their lives
back, thanks to the collaborative efforts of the
Juvenile Post Disposition Branch and the
Lexington Trial Office.