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Saturday, July 03, 2010

Courts - Kentucky public defenders challenge the constitutionality of allowing prosecutors to decide whether to seek the death penalty

Jim Hannah of the Cincinnati Enquirer reported July 1, 2010. Some quotes:

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. He also pointed out there are 12 states where someone can commit a crime without worrying about being sent to death because the death penalty remains illegal.

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.

Posted by Marcia Oddi on July 3, 2010 01:52 PM
Posted to Courts in general