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Prosecutorial misconduct results in reversal of molestation conviction

Campbell County Attorney Steve Franzen

Prosecutorial misconduct results in reversal of molestation conviction

The Kentucky Supreme Court unanimously threw out a child molestation conviction because the Campbell County trial prosecutor “flagrantly abused its authority in prosecuting the case” by making misleading statements to the jury during closing argument.

David Albert Soloway was sentenced to 45 years in prison after the 8-year-old daughter of his live-in girlfriend accused him of molesting her. He was convicted of two counts of first-degree sodomy, one count of sexual abuse, and one count of being a first-degree persistent-felony offender.

During closing arguments, the prosecution argued that Soloway’s refusal to speak to police showed he was guilty.

“Ladies and gentleman of the jury, an innocent man, when he hears he’s accused of child sex abuse, does he — what does he do?” the prosecutor argued to the jury. “He tells everybody he knows. He goes to law enforcement and says, ‘I didn’t do it. What do I need to do? Who do I need to talk to?’”

Rather than do that, argued the prosecutor, when Solway found out the police were looking for him, he went to a hotel and got drunk. And he then persisted in refusing to talk to police even after he turned himself in.

“Those are the actions of a guilty man that knows he should be going to jail,” the prosecutor claimed.

The Kentucky Supreme Court held that the closing argument involved misconduct that was “flagrant and palpable.”

“We consider an accused’s right against self-incrimination sacred,” the Court wrote. “And we take any assault on invocation of this right seriously. The prosecutor erred significantly in making these statements that misled the jury on the nature of Soloway’s silence, and deeply prejudiced his defense.”

The Court vacated Soloway’s convictions and sentence and remanded his case back to the trial court, where he is likely to be retried.

Top Five Articles Covering Ohio’s Planned Execution Spree

Top Five Articles Covering Ohio’s Planned Execution Spree

Ohio has not conducted an execution in over three years. That’s about to change. The state has scheduled 27 executions in the three year period between today and September 2020. For context, the entire country performed a *total* of 62 executions between 2014–2016.

Here are the best five articles we’ve read on Ohio’s abrupt change of course.

  1. Bidish Sarma, Ohio is Set to Become the Texas of the North. Here’s Why It Shouldn’tIn Justice Today. Sarma writes, “One need not move past Ronald Phillips’s case to unearth the seismic defects in Ohio’s capital punishment scheme. In 1993, when a jury sent Philips to death row, the jurors did not have the option to impose a life without parole sentence. Today, every jury has that option.” Phillips is described as “a rather simple, emotionally immature, psychologically inadequate person.” He was 19 at the time of the offense and he had endured sexual abuse as a young child. Also, from Sarma, referring to Gary Otte, the man slotted for execution after Phillips: “Given our recognition that 17 year-old who have developed normally can never receive the death penalty, it is difficult to understand why Ohio is pushing to kill a ‘slow,’ drug-addicted 20 year-old with severe depression and a history of suicide attempts.”
  2. Carter Sherman, Ohio will continue using drug deployed in botched executionsVice. The last execution Ohio performed, which took place in 2014, was botched. The Columbus Dispatch reported that Dennis McGuire “gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes.” The Dispatch quoted an anesthesiologist who said McGuire experienced “true pain and suffering” and concluded that “this was not a humane execution.” In Vice, Sherman covers the recent decision of the U.S. Court of Appeals for the Sixth Circuit, which permitted Ohio to continue to use midazolam, one of the drugs linked to a string of botched executions. | See Also: On Tuesday, the U.S. Supreme Court refused to hear a challenge to Ohio’s execution protocol. Justice Sonia Sotomayor dissented from the denial of certiorari, writing, in part, “I dissent again from this Court’s failure to step in when significant issues of life and death are present.” A group of fifteen pharmacologists filed a friend of the court brief which read, in part: “At bottom, the parties dispute whether midazolam is an appropriate step-one drug to render the inmate unconscious and incapable of perceiving pain during the lethal-injection process. From a pharmacological perspective, the answer is no.”
  3. Jim Petro and Lee Fisher, Gov. John Kasich should prevent Ohio executions from resumingCleveland Plain Dealer. In 2014, a Ohio Supreme Court and Ohio State Bar Association Joint Task Force on the Administration of Ohio’s Death Penalty issued a report citing numerous problems with the state’s death penalty. The Task Force made a series of recommendations to, as Petro and Fisher put it, “reduce racial disparity, increase accuracy in sentencing, ensure better lawyers for indigent defendants, and more.” The report was ignored in practice. Petro (R) and Fisher (D), two former Ohio Attorneys General, argue in this editorial that Ohio’s death penalty system remains broken and executions should not resume. | See also: Robert Higgs describes in detail the recommendations of the 2014 Task Force report for the Plain Dealer. Read the full report here.
  4. Scott Martelle, Ohio has a troubled death penalty system yet intends to resume executions anywayL.A. Times. Scott Martelle, a columnist for the Los Angeles Times, explains his objections to the resumption of executions in Ohio. Chief among the concerns are Ohio’s nine exonerations of death row inmates, which he describes as a “pretty high failure rate in a state with 140 people on death row, and 53 executions since 1999.” | See also: Dale Johnston, Wrongful convictions make death penalty too riskyColumbus Dispatch. Dale Johnson was wrongfully convicted of murder in Ohio in 1984, sentenced to death, and exonerated in 1990. Johnston discusses how the only evidence presented in his case was eyewitness identification by one person who had undergone hypnosis and boot-print evidence that was later debunked.
  5. Linda Collins, Op-ed: My husband supervised Ohio executions for 5 years. It changed his lifeWCPO-Cincinnati. Linda Collins, the widow of former Ohio Department of Rehabilitation and Correction Terry Collins, writes that her husband oversaw 33 executions during his decades-long career. She notes that “even under the best circumstances, executions are very hard on the corrections staff.” According to Collins, her husband took work psychologically home with him and discussed his need to disassociate as a coping mechanism. He also felt significant stress over whether or not his department was executing the truly guilty, especially because he had “personally walked innocent people out the front doors of prisons.” | See also: LaShawn Ajamu, Victims’ families in Ohio need resources, not executionsToledo Blade. LaShawn Ajamu is the brother of an Ohio homicide victim, James Nero. She explains that Ohio provided few services to help her and her family cope. Without resources to the family members of homicide victims, Ajamu considers talk from politicians that the death penalty brings closure to victims to be nothing more than “political grandstanding.”

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Top Five Articles on Bail Reform Last Week

Top Five Articles on Bail Reform Last Week

There is widespread agreement that the bail system is broken. Millions of people annually sit in local jails without conviction because they cannot afford bail, and 75% of pretrial detainees have been charged only with drug or property crimes. The effect is that bail needlessly causes people to lose their jobs, not be able to care for their children, and to lose contact with their loved ones. States like New Jersey and Connecticut have already transformed their systems, with the former eschewing cash bail altogether and the latter creating a presumption against bail for misdemeanors. Even elected head prosecutors, like Kim Foxx in Chicago and Kim Ogg in Houston, are coming out against the current bail system. Also in Houston, a federal judge ruled that Houston’s bail system is unconstitutional because it keeps people in jail only because they cannot pay. Oftentimes, the only group fighting to keep the system the same is the bail industry itself.

Here are the best five articles on the national move toward bail reform last week.

1. Taryn Finley, Kamala Harris Is Dedicating Her First Major Legislative Effort To Bail ReformHuffPost

  • Sen. Kamala Harris (D-CA) has prioritized criminal justice reform, introducing a bipartisan bail reform bill with Sen. Rand Paul (R-KY). The Pretrial Integrity and Safety Act would grant $10 million over 3 years to incentivize states to replace or reform their money bail systems and asks states to make individualized risk assessments. Harris has also recently spoken publicly about the rapid rise in the number of women in prison and the need for criminal justice reform.

See also: Kamala Harris and Rand Paul editorial in New York Times.

2. Nick Malinowski, Why is the Bronx District Attorney holding Pedro Hernandez at Rikers Island?In Justice Today

  • Eighteen-year-old Pedro Hernandez has been held at Rikers Island for nearly two years for a crime he most likely did not commit. Despite ample evidence of Hernandez’s innocence — including video indicating that he was at his mother’s house at the time of the crime, as well as several witness’ statements, including the victim’s, saying he wasn’t involved— Hernandez is being held on $250,000 bail. The Bronx DA apparently sees the weaknesses in the case by offering Hernandez a non-jail plea deal, which he has rejected — yet the DA won’t reduce his bail.

See also: Shaun King calling Hernandez “Rikers Island’s new Kalief Browder” at NY Daily News; Willie Burnley, Jr. discussing how “Hernandez’s case highlights the ways that the money bail system has a disproportionate impact on low- and even middle-class families” at ATTN.

3. Anita Chabria, Rapper Common plans free Sacramento concert to promote criminal justice reformSacramento Bee

  • Common is planning to perform a free concert on Capitol Mall in Sacramento to raise awareness for bail reform and juvenile justice. The concert is a collaboration between Common and former Hollywood producer Scott Budnick as part of a three-day campaign that involves lobbying efforts and an additional concert for individuals incarcerated in state prison. After the Sacramento concert, Common and Budnick will meet with legislators to discuss SB 10, a bill to end California’s money bail system, as well as SB 394, a bill to allow early release for individuals sentenced to life without parole as juveniles.

See also: Fair Punishment Project alumnus Casey Tolan discussing how the bail bond industry thwarted efforts in the California state assembly to change money bail policies in The Mercury News.

4. Megan Crepeau, Judges ordered to set affordable bonds for defendants who pose no dangerChicago Tribune

  • In response to a class-action lawsuit filed last year over the setting of excessive bail, Cook County Chief Judge Timothy Evans has signed an order detailing a new policy whereby judges must take into account a defendant’s ability to pay in making a bond determination. The policy also provides that there will be an interview in advance of the bond hearing to determine a defendant’s financial resource. Cook County State’s Attorney Kim Foxx supports this change.

See also: Richard Oppel, Jr. writing about the decision for the New York Times; Larry Hannan detailing Chicago State’s Attorney Kim Foxx’s support for bail reform in In Justice Today

5. Albert B. Kelly, 6 Months In, N.J. Bail Reform Is Working,

  • Prior to New Jersey’s 2017 bail reform initiatives, a defendant’s likelihood for pretrial release hinged almost entirely on his or her ability to pay bail — without regard for ensuring that the bail was set in proportion to the severity of the crime or the risk level of the defendant. Six months after the state enacted ground-breaking reform, New Jersey jail populations have declined by almost 20 percent. Approximately 87 percent of arrestees are now being “released under some level of monitoring” and only 13 percent detained for public safety reasons.

See also: PBS NewsHour interviews stakeholders in New Jersey and discusses how the state is leading the country in bail reform.

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