Rep. Daryl Owens of Louisville has introduced a bill (which you can read here) which would allow for the expungement of felony convictions after five (5) years. The bill would apply only to Class D felonies and, as amended currently, would not allow for not allow for expungment for crimes against children, or the disabled or elderly (crimes under Chapter 209). Kentucky has had allowance for misdemeanor expungements for some time now, and it appears that several other states allow for some level of felony erasure. Oddly, the bill would also allow that for persons who received a felony expungement, they could not be charged with possession of a firearm by a convicted felon. I suppose that is just consistent with the current fervor over “Second Amendment rights” though, right? It also appears that such felonies could not longer form the basis for enhanced sentences under the persistent felony offender law.

We’ll try to follow this through the legislature.


KPL’s own renowned employment law expert and partner Djenita Pasic was seen today discussing President Obama’s immigration reform proposal with WAVE3’s Scott Adkins. Pasic discussed the impact on the local economy already seen by immigrants, and the many benefits that could some with bringing our brothers and sisters out of the shadow economy that exists for so many. Pasic stressed that any immigration reform should rightly address criminal background checks and the like, but should be designed to be non-punitive to those who have made their home here, and contributed so much to the local economy already. We also note– and celebrate– the fact that our fine partner was, herself, an immigrant from war-torn Bosnia in the 1990’s, who has risen to one of Louisville’s finest attorneys. She knows well of that which she speaks!


In the only case of general interest– if you want to call it even that—from the Kentucky Court of Appeals today, the Court reviewed a drug trafficking conviction following a jury trial in Jefferson Circuit, in which the Defendant took umbrage to a bailiff’s flip comment during jury selection. According to the opinion, the bailiff admitted to saying, in response to a juror’s question about what to do about jail or prison overcrowding, “if the jails are full and the prisons are full, we could shoot them.”  The Court found that the statement had no effect on the trial jury or the outcome of the case.

EDITORIAL: There is a certain gallows humor in the courthouse, and always has been. We all need to remember to keep it “backstage,” I suppose. I’m sure this deputy is extraordinarily embarrassed about the event, and I do doubt that it had any effect. I’m also not sure Facebook constitutes “keeping it back stage,” so I will add no further comments of my own.

Khalid Tackles Fourth Amendment at 6th Circuit; Kentucky Court of Appeals Update Later Today

KPL’s Khalid Kahloon returned yesterday from the Cincinnati, after an oral argument at  the U.S. Court of Appeals for the 6th Circuit,  that he described as going ” even better than he thought it would.” Good luck to our client and Khalid, who presented issues centering on the search of an automobile following a traffic stop, and whether certain Kentucky convictions were misapplied in calculating a federal sentence.

Criminal law practitioners:  please come back today or check our Facebook Page (click here), for today’s case law update in criminal law. If you’re not a subscriber already, email me at, or send me a Facebook message with your email address, and we’ll add you.

–Todd Lewis


The Kentucky Court of Appeals today reviewed a case of juror misconduct from Christian County which, if true, should be a little frightening to the criminal trial bar. The Christian Circuit Court (Judge Andrew Self) granted a new trial upon being presented with affidavits from two jurors indicating that another juror had informed other jurors– during the guilt phase deliberations– that a murder conviction would result on parole eligibility in 4 years (20%). (You can probably guess that Defendant was convicted of murder.) In fact, of course, any non-capital murder conviction currently carries a requirement to serve 85%, to a maximum of twenty years, before parole eligibility. Hopefully, the juror did not get this information from a law blog. We wrote on a similar topic involving “facebooking” jurors a couple months ago here.

The Court of Appeals reversed here solely for the trial court to conduct a contested evidentiary hearing rather than relying only on affidavits. So, there is no final determination that this actually happened, but we do know that the Circuit judge was convinced of it at the time.


William Ayers, former Louisville criminal defense lawyer whose Jefferson Circuit Court conviction for tax crimes  was reversed by the Kentucky Court of Appeals in 2010, will now have that reversal reviewed by the Kentucky Supreme Court, at the request of the Commonwealth.  The Kentucky Supreme Court granted today a “Motion for Discretionary Review,” meaning they will take up whether the Court of Appeals was correct in reversing Ayer’s conviction.

Ayers, who was tried for tax crimes in 2009 by Assistant Commonwealth’s Attorney Tom VaDeRostyne, was convicted before Judge Susan Gibson of five count of failure to file tax returns. Ayers claimed on appeal that the trial judge did not adequately protect him from the pitfalls of representing himself (Yes, you read that correctly). This would have involved the trial court conducting what is known as a “Faretta” hearing, at which the judge is to pointedly question any criminal defendant about whether they truly want to represent themselves, and essentially tell them that it is a bad idea. (We all know the Abraham Lincoln quote about that, don’t we?).  The Court of Appeals ruled that, indeed, Ayers was entitled to such a hearing, and that the trial judge must be reversed for failing to conduct one. There is not an exception for practicing criminal defense attorneys. Perhaps there will be such an exception after the Supreme Court hears the case. Stay tuned.

Kentucky Supreme Court Expands Rights Beyond Federal Constitution

In an interesting turn  today, the Kentucky Supreme Court bid fellow Kentuckians a Happy Thanksgiving today by decisively recognizing or expanding at least two rights under Kentucky law beyond what the U.S. Supreme Court has had to say on the same topic.

New Rights for Kentuckians Subject to Police Interrogation

In the first turn, it seems the Court was not entirely impressed with the scope of existing rights under Miranda v. Arizona, and recognized that the Bill of Rights of the Kentucky Constitution may provide greater protections. Traditionally,  a suspect must be in “custody” before he or she is entitled to have the traditional “Miranda” warnings read (everyone knows it– come on, all together. “you have the right to remain silent, Anything you say can be used against you . . . ” etc.) . Well, says the Kentucky Supreme Court in Baumia v. Commonwealth, that’s not everything the Kentucky Constitution says, because it prohibits “compelled” testimony against oneself. A person can indeed, be “compelled” by the government to give a statement, even when they are not in custody, per se. All the lawyers out there know what that means, so I won’t say any more.

Expanded Double Jeopardy Protection

In the other turn toward expanded state-law rights, the Court in Kiper v. Commonwealth, ruled that one can not be convicted of both Assault First Degree and Criminal Attempt Murder for the same shooting incident, at least under a set of facts like this case. Really, double jeopardy under the “Blockburger” rule is stuff only a lawyer could love, so I won’t go into the details of the rule. Suffice to say, the Court took a look at some of the protections against multiple convictions in the Kentucky Penal Code, and applied the brakes in areas the U.S. Supreme Court has not.

My self-absorbed commentary: it was not more than a month ago that I wrote an entry (here) about how so many state supreme courts shy away from recognizing the power of their own state law. In this instance, I confess I entirely misjudged the fine  members of the high court of the Commonwealth.



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