The 3rd meeting of the Interim Joint Committee on Judiciary was held on Tuesday, November 19, 2002, at 10:00 AM, in Room 149 of the Capitol Annex. Representative Rob Wilkey, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Representative Rob Wilkey, Vice Chair; Senators Lindy Casebier, David K. Karem, Marshall Long, Gerald Neal, Elizabeth Tori, and Jack Westwood; Representatives Paul Bather, Perry Clark, Jesse Crenshaw, Joseph Fischer, Bob Heleringer, Jeffrey Hoover, Arnold Simpson, John Will Stacy, Kathy Stein, Gary Tapp, John Vincent, and Brent Yonts.
Guests:
Chief Justice Joseph E. Lambert, Supreme Court of Kentucky; Carla Kreitman, Director of the Family Court Program, Administrative Office of the Courts; George Moore and Dave Stengel, Kentucky Commonwealth’s Attorneys Association; Ernie Lewis, Public Advocate; Dr. Tracey Corey, Chief Medical Examiner, and John Lile, Deputy Secretary, Justice Cabinet; Jason Rothrock, Fayette County Commonwealth’s Attorney Office, Misty Dugger, Department of Public Advocacy; Kimberly Barrineau; and Richard Boling, Christian County Commonwealth's Attorney.
LRC Staff: Norman Lawson, CSA; Jon Grate, Peter Cassidy, and Lisa Fenner.
The meeting was called to order by Vice Chairman Rob Wilkey in the absence of Chairman Lindsay. The roll was called and a quorum was not present.
The first speaker was Chief Justice Joseph Lambert of the Supreme Court of Kentucky. Chief Justice Lambert indicated that he was "delighted" by the 76% statewide vote in favor of constitutional amendment #1, relating to the establishment of a family court program in Kentucky. Chief Justice Lambert indicated that at present there were 26 counties with family courts with 23 judges presiding in those courts and that there are immediate plans to add a 10th family court division in Jefferson County. Chief Justice Lambert also told the committee that the use of domestic relations commissioners in the Jefferson Family Court will be eliminated by January. Chief Justice Lambert indicated that the current plans for the expansion and implementation of family courts include: 1) create new judgeships where needed and there is a demonstrable need combined with the resources to implement the new judgeship; and 2) redeploy existing judges and resources without leaving the existing courts understaffed. Chief Justice Lambert told the committee that in Fayette County there is no Family Court, but that in discussions with the judges in Fayette County that several willing judges will be transferred to create family court positions utilizing the Circuit Court model. In this plan, which is to be used statewide, the Chief Justice indicated that when the new Family Court is created, existing District Judges will be converted to Circuit Judges and new divisions of the Circuit Court created as Family Court divisions. The changes will permit a lowering of cases in the "traditional" circuit and district courts, as those will be transferred to the new family court. The total number of cases in the area will not increase or decrease and the remaining district and circuit judges will have approximately the same caseloads.
Chief Justice Lambert indicated that proposed legislative changes have not yet been prepared, but that since KRS Chapter 26A already accommodates most of the tenets of the Family Court that a large number of changes are not expected. The focus will be on cases involving children and families and the court will be looking at what types of "family" cases might be excluded from the jurisdiction of the Family Court and still remain true to the family court model. In response to a question from Representative Crenshaw, Chief Justice Lambert stressed that in the conversion process that he did not want to "leave a gap" in the remaining District Courts and Circuit Courts in the process of creating the Family Court, and that the desires of the current judges with regard to serving in new Family Court judgeships will be respected. Representative Yonts asked about what might happen in a rural county where there is only one District Judge and one Circuit Judge. Chief Justice Lambert responded that a Family Court will be created only where the caseload makes the new court feasible. Representative Stein asked whether the current vacancy in the Fayette Circuit Court, created when a judge was appointed to the Court of Appeals, could be converted to a Family Court position, to which Chief Justice Lambert responded "yes" and if a District Judge does not move up to the position then fairness dictates that this be a Family Court. Representative Vincent asked about whether a Family Court might be created in the 37th Judicial Circuit where a new judgeship had recently been created to which the Chief Justice replied that one judgeship might be designated for the Family Court. Representative Fischer asked if all Family Court positions must be filled by January 1, to which the Chief Justice responded "no" but that it is his intent to fill as many of them as possible. Senator Tori asked about converting District Judges to Circuit Judges and whether that would create an election problem to which Chief Justice Lambert responded that the transitional provisions of the constitutional amendment permitted this and that the election cycle had been adjusted by the General Assembly several years ago to harmonize the elections of circuit and district judges. Senator Tori then asked if Family Courts will be separate from District Courts and Circuit Courts, to which Chief Justice Lambert responded that technically Family Court will be a division of the Circuit Court, but will operate separately so that when a judge runs for that particular division of the Circuit Court that they know that it is a Family Court division. Chairman Wilkey asked what the start-up and operating costs for a totally new Family Court are expected to be, to which Chief Justice Lambert responded that the cost would be approximately $300,000. Representative Yonts asked what positions would be created along with each new judgeship to which the Chief Justice replied that there would be a social worker, bench clerk, and additional deputy Circuit Clerk. Representative Yonts then asked about the previously quoted $600,000 cost for each new Family Court, to which Ms. Carla Kreitman, Director of the Family Court program at the Administrative Office of the Courts, responded that since the initial estimates, actual practice has proven that "we have done better" and that the actual costs were much lower.
A quorum was now present and the minutes of the October meeting were approved.
The next speaker was Senator Gerald Neal accompanied by Dave Stengel, President of the Commonwealth's Attorneys Association, and Ernie Lewis, the Public Advocate. Senator Neal described a recent case from Jefferson County in which a defendant was convicted of rape, sentenced to prison, and served 8 years in prison before DNA evidence proved that the person could not have been convicted of the offense and the person was released from prison. Senator Neal observed that the case created two categories of victims, the first being the victim of the initial crime, and the second being the person who spent 8 years in prison for a crime which he did not commit. Senator Neal observed that in this case everything had been done by the book, that there was no improper conduct by prosecutors, but that a mistake was made, and that although the defendant was released from prison nothing has been done in an attempt to compensate the man who was wrongfully incarcerated, which "brings the entire justice system into question."
Senator Neal then proceeded to describe 03 RS BR 207, which he has prefiled, which would authorize a defendant to make a claim before the Board of Claims for compensation of $25,000 for each year of incarceration upon a finding by the Circuit Court that the defendant did not commit the crime and that the defendant was wrongly incarcerated. Senator Neal observed that his proposal removes the necessity for an adversarial proceeding, which would cause further potential harm to the original victim of the crime. Commonwealth's Attorney Stengel indicated that the Commonwealth's Attorneys Association favored the legislation. He further indicated that no prosecutor wants to put an innocent person in jail, and that the bill satisfies initial concerns he had about sovereign immunity in a previous version of the bill, which called for a civil trial. Public Advocate Lewis indicated that the Department for Public Advocacy also supports the bill, but would like to see the provision relating to not providing relief where the defendant had confessed to the crime eliminated, citing instances where a defendant has been coerced into a false confession. Mr. Lewis also indicated that the Department for Public Advocacy has entered into a new "innocence" project involving law students, social work students, and law enforcement students from various state universities. He cited as evidence of the success of the project that a person serving a term for rape from Franklin County had been released from prison after DNA evidence was utilized in the review of the case. Representative Crenshaw commended Senator Neal for sponsoring the bill. Representative Stein indicated that perhaps the bill should also compensate the wrongfully incarcerated person for any physical injury, which happened to them during their incarceration, to which Senator Neal responded that the proposal might be a subject for another bill. Senator Tori asked about the provisions of the bill relating to costs of housing and feeding the prisoner to which Senator Neal responded that the provisions were added to the bill to protect against the state trying to reduce the amount of the award by saying that they had fed and housed the defendant. Senator Karem observed that the damage limits of the current Board of Claims legislation should be observed in this legislation to which Senator Neal responded that the liberty interest calls for additional compensation. Representative Stacy asked whether the bill should be expanded to compensate the family of a wrongfully incarcerated person who either dies in prison or who is executed to which Senator Neal indicated that he had not yet considered that contingency.
The next speakers were Dr. Corey Tracey, State Medical Examiner, and John Lile, Deputy Secretary of the Justice Cabinet, who spoke on Executive Order 2002-1191, which relates to reorganization of the Forensic Sciences Division and laboratory facilities of the State Medical Examiner's Office after their transfer from the Cabinet for Health Services some time ago. Deputy Secretary Lile indicated that an evaluation had been made of the laboratory services, which resulted in the hiring of additional personnel and the acquisition of additional scientific equipment so that the time to process cases in the laboratory can be improved. Senator Long moved and Representative Stein seconded a motion to approve the executive order. Senator Westwood asked if the 4 to 6 week time to make toxicological and other tests would be improved by the reorganization. Dr. Tracey responded that the actual time had been 4 to 6 months and that the goal is to have the results within 30 days in a criminal case and in 6 weeks on an ordinary autopsy. Representative Fischer asked if the additional chemists were included in current funding to which Dr. Tracey responded "yes." The motion passed 16 to 0 on a roll call vote.
The next speakers were Public Advocate Ernie Lewis and Commonwealth's Attorney George Moore from Montgomery County representing the prosecutors in the state. They presented a proposal to forgive the loans of public advocacy attorneys and deputy Commonwealth's and county attorneys. The program, which would be operated in cooperation with the Kentucky Higher Education Assistance Authority, would provide a specific amount of funding for each two years a prosecutor or defender worked for the purpose of reducing the amount of the student loans of those employees. Mr. Moore indicated that the average attorney entering private law practice makes three times the amount which the state is able to pay the entering prosecutor or defender, yet the amount which these attorneys owe in student loans is the same as attorneys making more money in private practice. Mr. Jason Rothrock from the Fayette Commonwealth's Attorneys office indicated that the attorneys in that office alone owe more than $386,000, and that at the present rate of salary, together with expected increases, most of the attorneys would be retired from state government before the loans are paid off since most of the loans are for 30 years. The same type of situation was indicated by Ms. Misty Dugger, a public advocacy attorney from Frankfort. Public Advocate Ernie Lewis noted that there is no funding provided in the bill and indicated that he hoped that funding could be found in the next session of the General Assembly to implement the program at least by 2004. Senator Long indicated that he foresaw social workers, police, and all other public employees asking to be added to the program at an immense expense to the state and indicated that better salaries were a more appropriate alternative, to which Mr. Moore indicated that the loan forgiveness program would be a valuable recruitment tool in seeking qualified attorneys.
The next speakers were Ms. Kimberly Barrineau, whose son was murdered, and Mr. Richard Boling, Commonwealth's Attorney from Christian County who tried the defendant who killed Ms. Barrineau's son. Ms. Barrineau described a situation where the defendant who murdered her son had been placed in a juvenile facility as a youthful offender at age 16. At age 18, the court held a hearing to determine whether the defendant should be transferred to an adult correctional facility, and determined that the defendant should be transferred to an adult correctional facility. Following this determination, the General Assembly at the 2002 Regular Session passed KRS 600, which permitted the Department of Corrections and the Department of Juvenile Justice to agree to retain a youthful offender in a juvenile facility until age 21. Ms. Barrineau indicated that the day after the new statute became effective, the Department of Corrections, without consulting the judge, without consulting the prosecutor, or without consulting her, transferred the defendant from a jail back to a Department of Juvenile Justice facility.
Ms. Barrineau indicated that there are no standards in the statute regarding how and why such a transfer is to be made and that judicial input is denied. Ms. Barrineau indicated that she objects to this statute and would like to see it changed. Commonwealth's Attorney Boling observed that the situation is now one that the decision of the prosecutor to try the case, the decision of the judge to sentence the defendant, and the wishes of the victim of the crime, which are protected during the trial stage, are now being rendered moot by the ability of the Department of Juvenile Justice and Department of Corrections to determine what should be done with the defendant without any subsequent action by the court and input from the prosecutor and the victim of the crime. Mr. Boling urged that the statute be repealed. Mr. Ray Debolt, general counsel for the Department for Juvenile Justice, indicated that in this particular case, which is the only one so far utilizing the new statute, the juvenile involved was considered to have been too small and mentally incapable of functioning in the adult system, so he was transferred back to the juvenile facility which is a locked facility with a fence. Mr. Debolt further observed that in both the adult system and the juvenile system that once a judge sentences the defendant that the state, not the judge, has the responsibility for deciding where the defendant should be housed. Senator Neal asked Mr. Debolt if the Department for Juvenile Justice was in possession of all of the information which the prosecutor had, to which Mr. DeBolt responded yes, but Mr. Boling disagreed. Senator Neal then asked if the Department of Juvenile Justice had the right to release the defendant from incarceration to which Mr. DeBolt responded "no" because the defendant can be released only by the Parole Board or by expiration of sentence unless released by a court order. Ms. Barrineau informed the committee that no one knew where the defendant was for quite some time to which Mr. DeBolt admitted that the information was not placed into the VINE victim notification system in a timely manner. Chairman Wilkey indicated that there is no bill request on this matter at the present time, but that Ms. Barrineau has been in contact with Senator Pendleton with regard to this matter.
The meeting was adjourned at 11:55 AM.