Public Advocate Appoints Sara Zeurcher CTB West Directing Attorney

The Public Advocate is pleased to announce that Sara Zeurcher has been appointed as Directing Attorney of the Capital Trial Branch West. Sara joined DPA in 2010 as an attorney in the Richmond office.  She spent eight great years there before joining CTB West in October of 2018.  Originally from Illinois, Sara completed her undergraduate work at Butler University before attending Wake Forest School of Law.  She then moved to Kentucky to pursue a career with DPA.  In her free time, she enjoys spending time with her husband and three children. 

​Kentucky’s Public Defenders are Concerned about a Premature Return to Open Court Proceedings

FRANKFORT, Ky. (May 26, 2020) – As a precaution to protect participants from possible exposure and spread of COVID-19, most criminal court proceedings have been suspended since March, but that is about to change and public defender leaders are worried about what they may mean for the health of their attorneys and others in the system.

On May 15, the Supreme Court of Kentucky issued an order that trial courts in June could “resume hearing civil and criminal matters using available telephonic and video technology to conduct all proceedings remotely.” In the days since the order was issued, however, some trial courts have announced an intention to resume hearings as early as June 1 with all parties physically present in the courtroom, not appearing through remote means as ordered by the Supreme Court. A few courts have already scheduled dockets for early June with hundreds of cases scheduled to be heard in-person each day.


According to the leaders of the Department of Public Advocacy (DPA), which is responsible for providing hundreds of public defenders to represent clients before every criminal court in the Commonwealth, those trial courts may be going too far too quickly. Public Advocate Damon Preston said, “The Supreme Court announced a careful plan for a temporary transition stage as a bridge from the period of presumptive court closure that has been in place since March and a future period when courts can return to some degree of normal proceedings. We believe all courts should follow this gradual approach, which begins with online remote hearings.”


According to Deputy Public Advocate B. Scott West, DPA leaders are concerned about the safety of its employees and clients if in-person court proceedings resume in June. “Even if safety precautions are enforced, an in-person docket means that defenders and others will be exposed to dozens or hundreds of people over the course of several hours as people continuously rotate throughout the courthouse and courtrooms. Any one of those could bring COVID-19 to all the people in the courtroom, endangering their health and requiring an extended shutdown of the court system once the exposure is discovered. Courts should resume as the Chief Justice ordered, through electronic means, not in a courtroom,” says West. As to a trial court’s decision to set hearings in person, West added that, while the Supreme Court order does allow a judge to determine, in his or her discretion, that “a matter” may require in-person attendance, the requirement of an in-court hearing in every case is not the exercise of discretion and nothing in the current order authorizes a court to disregard video proceedings entirely in favor of mass in-person dockets.

Over the past two months, most court have used online video platforms such as Skype, Zoom, Vidyo, or Chime to hold court hearings with all participants appearing through a phone, tablet, or computer. DPA Trial Division Director Samuel Cox says he believes that these platforms are adequate during the pandemic for routine court appearances that need to be scheduled in June, July, and August. Cox said, “While some cases, some hearings, and some clients will require in-person proceedings, we believe that every case should first be scheduled for a safe remote appearance. In-person hearings in June or July should be reserved for circumstances where video is not sufficient.” If a party cannot or does not participate in a video hearing, then Director Cox recommends that an in-person hearing should be scheduled for August or later. “We believe that in-court proceedings are the best practice and we look forward to returning in the future to where all court takes place in the courtroom, but for now, limited video hearings are the best and safest route to getting the court system moving again,” Cox concluded.


In light of the continued risk of the spread of COVID-19, Public Advocate Preston believes it is too soon for courtrooms to be reopened for non-emergency hearings. “We are asking all trial courts to adopt plans to conduct June and July dockets by video through an online platform. With the thousands of cases currently pending, orderly video dockets are an efficient method of resolving and advancing cases without any of the risks or safety requirements of in-person hearings.”

This release is a communication of the Department of Public Advocacy (“DPA”), which is established in KRS 31.010 “as an independent agency of state government, attached for administrative purposes to the Justice and Public Safety Cabinet.” The views or assertions herein are those of DPA and, unless stated otherwise, have not been endorsed by the Justice and Public Safety Cabinet or the Governor.

Andrea Kendall Appointed as CTB East Directing Attorney

The Public Advocate is pleased to announce that Andrea M. Kendall has been appointed as the Directing Attorney of the Capital Trial Branch East. Andrea joined DPA as a Public Defender Corps Fellow in the Boone Trial Office in 2011. She also worked in the Newport Trial Office before joining CTB-East in 2017. Andrea completed the Gideon’s Promise Core 101 training program in 2014 and returned in 2018 to mentor young lawyers. Originally from Toledo, Ohio, Andrea graduated from Ohio State University and Georgetown University Law Center. Prior to joining DPA, Andrea and her husband Ray Ibarra worked as a public defenders in Montgomery County, Maryland and Santa Barbara County, California. Andrea’s time is spent foster parenting an energetic toddler. Previous hobbies included visiting National Parks, watching classic films, and playing board games. 

DPA COVID-19 Letter to Justice Cabinet and Parole Board

March 26, 2020 — DPA sent a letter today to the Justice Cabinet Secretary Hon. Mary Noble, and Ms. Leila A. VanHoose, Chair of the Parole Board requesting that they take action to reduce the number of incarcerated persons within the Commonwealth for their own protection and for the protection of all Kentuckians.

You can read the full text of the letter here.

We Must Significantly Reduce the Jail Population to Protect Kentuckians from COVID-19

As the coronavirus pandemic continues to spread throughout Kentucky, we urge you to heed the advice of Chief Justice Minton and “safely release as many defendants as we can as quickly as we can” from Kentucky jails. [1] [Minton Twitter] “We know what a potential disaster this could be and it’s our responsibility to work with jailers and other county officials” to achieve that necessary goal. An outbreak of COVID-19 in the jail would be swift and deadly, and now is the time for decisive preventative measures. As we start to see outbreaks in states that are roughly 1-2 weeks ahead of us in coronavirus spread, the time to act is now. [2] [Rikers Island] [Santa Barbara]. This protective action is necessary to protect those in the jails as well as the community to which the coronavirus will spread if an outbreak were to occur. [3] [Hancock Co., Indiana] [Los Angeles, California] [San Francisco, California]

COVID-19 poses severe infection risks whenever people are in close physical proximity with others, regardless of whether an individual shows symptoms. People in jail are unable to distance themselves from others and take other necessary preventative measures. The risk of spreading infection is especially severe in light of the chronic overcrowding in Kentucky jails. Jails will not have the capacity to contain the spread of infection if they are filled near or beyond capacity. This threatens everyone incarcerated in a jail, along with their loved ones, jail staff, and the state’s public health infrastructure at large. 

Not only do jails force people into close physical proximity, the underlying health conditions that can cause infection or exacerbate harm tend to be very prevalent among incarcerated people. In early March, the Washington State Department of Public Health warned about these very risks, noting that jail populations are “likely to include individuals who have chronic health conditions which weaken their immune systems” and are at “risk because respiratory pathogens may be more easily transmitted in an institutional environment.” [4]

1.      Reduction of the Jail Population is Essential to Prevent Spread:

The safest way to ensure that the jail does not become a vector for COVID-19’s spread is to reduce the number of people who are incarcerated. This is particularly imperative for anyone who a judge has already approved for release pending payment of money bail or anyone who would be released but for a technical parole, probation, or warrant violation. Release is also crucial for those who are elderly, immunocompromised, pregnant, medically fragile, or otherwise particularly vulnerable to COVID-19. 

Reducing the jail population is consistent with the guidance of correctional experts. Dr. Marc Stern, who has served as Health Services Director for the Washington Department of Corrections, recently urged: “With a smaller population, prisons, jails, and detention centers can help diseases spread less quickly by allowing people to better maintain social distance.”[5]

2.      The Jails Are Not Medically Able to Address a Coronavirus Outbreak:

Jails are not equipped to handle the medical crisis that would ensue when trying to address COVID-19 within the jail.[6] [COVID-19 in Prisons/Jails].The county is required to provide medical treatment to those who are housed in the local detention center. Currently, those medical centers are not equipped with the life-saving medications and medical equipment needed to care for those infected with COVID-19. Even minor cases require medical intervention including expensive lifesaving medications. Major cases require use of ventilators and other equipment needed to preserve respiratory function. The concern about medical supplies is supported by coronavirus related issues in other countries.[7] [Italian Medical Field].

3.      Counties May Incur Liability Due to Illness and Coronavirus Outbreak:

Questions remain what would happen if a jail were to have an outbreak causing a lock-down of the local detention center. It is possible that those on short sentences would be required to stay in the detention center beyond the expiration of their sentence. In those cases if a person were to contract the coronavirus after the termination of their sentence – when they can no longer be deemed to be in incarceration because of their crime — it is unknown what liability would be incurred by the county. If a person in that situation were to become very ill or die, the impact on county liability becomes even more concerning.

4.      To Protect Jail Staff, the Jail Population Must Be Reduced:

Dr. Stern also explained that reducing the jail population will ease staffing burdens: “If staff cannot come to work because they are infected, a smaller population poses less of a security risk for remaining staff.” Along the same lines, a list of “suggestions to jails for managing the impacts of COVID-19” published last week by the Washington Association of Sheriffs and Police Chiefs proposes “downsizing” jail populations, including by examining who a jail “can release on their own recognizance,” as well as pursuing “alternatives to arrest for certain crimes” and designating “crimes for which your patrol division will not arrest.”[8] 

The special vulnerability of prisons and jails to infectious disease, and particularly COVID-19 is readily apparent from the Coronavirus outbreak in China. Coronavirus suddenly “exploded” in China’s prison, with reports of more than 500 cases spreading across five facilities in three provinces.[9] [Washington Post Article]. As of February 25, there were 555 confirmed infections in five prisons of three provinces — Hubei, Shandong, and Zhejiang.[10] [Prisons in China] In addition, other US states which experienced earlier contact with the virus have already begun to confront the contribution of jails to the spread of the disease both within and without the jail.[11] [Article 1] [Article 2] Additional data compiled by the Prison Policy Initiative demonstrates the risk that jail contamination poses to the community at large due to post-infection release of contaminated inmates.[12] [Prison Policy Initiative] Action taken now to release incarcerated persons will help to curtail this risk.

5.      Action Must be Taken Immediately:

Every time the county introduces another person to the jail environment, the risk of spreading COVID-19 among the incarcerated population, jail staff, and the broader community continues to grow. We urge you to undertake all possible avenues for limiting that risk, including: 

  • Release people on personal recognizance. Exposing people to potential infection because they cannot afford a cash bond threatens the safety of the community by exacerbating a growing pandemic. Going forward, judges should consider that factor release on personal recognizance and all people charged with misdemeanors and low-level felonies. Judges should also reconsider custody status for anyone whose incarceration will make them vulnerable to infection.
  • Cite and release people charged with misdemeanors and low level felonies. Law enforcement officials to issue a citation and notice to appear in court when a person is arrested. To preserve resources and prevent infection, law enforcement agencies should issue citations and a notice to appear for everyone charged with misdemeanors and non-sex or non-violent felonies.
  • Prioritize immediate release for people who are most vulnerable. Older adults and those with serious medical conditions and fragility face a higher risk for infection. The conditions that can increase one’s risk of infection include diabetes, heart disease, asthma, lung disease, and HIV.[13] These conditions are more common among those who are incarcerated than the general population.[14]  Releasing these vulnerable groups from the jail immediately will avoid the need to provide complex medical care within the jail or transfer people to hospitals where capacity may be stretched thin.
  • Reduce release conditions and restrictions. Courts must consider whether release conditions will interfere with people’s ability to seek necessary medical screening and treatment as well as the ability to protect and care for any loved ones who may be impacted or vulnerable. No one should be forced to choose between violating a release condition or protecting their health and the health of others. Judges should also ensure that people released are not required to appear in person for check-ins and non-essential court proceedings where infection could spread. 
  • Ensure care and hygiene for people who remain incarcerated. The jail must follow changing public health protocols and coordinate with public health experts to communicate with staff and people in custody about preventative measures; provide adequate access to hygiene; and provide immediate testing and treatment to those who exhibit signs of infection. Access to care and hygiene must be made free, without commissary spending, co-pays, fees, or any other costs that could discourage prevention and treatment.      

To protect the county, detention center employees, and those detained in the local detention center, immediate and necessary action must be taken. The Department of Public Advocacy asks that persons in the following categories be immediately released from detention:

Pretrial Release:

  • Individuals with health factors that put them in the high-risk category.
  • Any person who is low or moderate risk.
  • Any person who is charged with a misdemeanor, non-sexual based felony, and non-violent felony.

Release of those held on contempt, probation violations, and sanctions:

  • Any person who is currently held on contempt.
  • Any person held for a hearing on a probation violation allegation
  • Any person serving on sanctions related to drug court, mental health court, veterans court, or for any other reason.

Release after incarceration:

  • Release of any person convicted of a misdemeanor offense that will complete their sentence in the next 90-days on shock probation equivalent to the remainder of their sentence (i.e. 90 days probated for 90 days).
  • Release of any person convicted of a felony and sentenced to less than 5-years who was sentenced in the last 180-days on shock probation.

These sensible steps will protect the public from outbreaks, while continued mass detention will not. We know this pandemic presents a range of challenges, and we share your commitment to ensuring the community’s safety and health. We urge you to take necessary action to save lives. 

*** A large thank you to the Bail Reform Project and many other defenders who openly shared content that was used to build this post. The KY DPA appreciates your help in the fight for release of our vulnerable jail population.

ENDNOTES

[1] “Time to focus on looming COVID-19 crisis in Kentucky’s overcrowded jails,” Update for March 20, 2020, to Justices, Judges, and Circuit Court Clerks, issued by Chief Justice Minton.

[2] https://theintercept.com/2020/03/18/coronavirus-rikers-island-jail/ (coronavirus has reached Rikers Island in New York City with fear the pandemic will explode); https://www.kclu.org/post/more-dozen-self-quarantine-following-coronavirus-incident-santa-barbara-county-jail#stream/0 (Santa Barbara, California, Jail Employee tests positive for coronavirus);

[3] https://fox59.com/news/hancock-county-jail-staff-member-in-self-quarantine-after-positive-covid-19-diagnosis/ (jail employee in Handcock County, Indiana, in quarantine after testing positive for the coronavirus); https://www.latimes.com/california/story/2020-03-16/la-jail-population-arrests-down-amid-coronavirus (Los Angeles County, California, releasing individuals to lower jail population); https://www.sfexaminer.com/news/sf-moves-to-release-inmates-fearing-coronavirus-outbreak-behind-bars/ (San Francisco, California, scrambling to reduce jail population)

[4] Washington State Department of Health, Novel Coronavirus (COVID-19) Guidance for Correctional Facilities (March 4, 2020).

[5] Human Rights Watch, COVID-19 Threatens People Behind Bars (March 12, 2020).

[6] https://www.nytimes.com/2020/03/17/us/coronavirus-prisons-jails.html (in jails, where social distancing is impossible, and medical care strained, the coronavirus will spread rapidly)

[7] https://www.nbcnews.com/health/health-news/italy-has-world-class-health-system-coronavirus-has-pushed-it-n1162786 (Italy’s medical care system is pushed to its limit by the coronavirus).

[8] Washington Association of Sheriffs and Police Chiefs, Washington State Jails Coronavirus Management Suggestions (March 5, 2020).

[9] https://www.nbcwashington.com/news/coronavirus/us-prisons-jails-spread-of-coronavirus/2233762/?_osource=db_npd_nbc_wrc_twt_shr

[10] https://thediplomat.com/2020/03/cracks-in-the-system-covid-19-in-chinese-prisons/

[11] https://www.theverge.com/2020/3/7/21167807/coronavirus-prison-jail-health-outbreak-covid-19-flu-soaphttps://www.sacbee.com/news/california/article240962761.html

[12]  https://www.prisonpolicy.org/blog/2020/03/06/pandemic/

[13] U.S. Centers for Disease Control and Prevention, ” People at Risk for Serious Illness from COVID-19 ” (March 10, 2020).

[14] Prison Policy Initiative, ” No need to wait for pandemics: The public health case for criminal justice reform ” (March 6, 2020).

Status Report on the 2011 Death Penalty Assessment Team Recommendations

DPA’s Public Advocate Damon Preston, along with prior Public Advocates and Executive Directors of the Louisville Metro Public Defender’s Office, compiled this report on the lack of action taken by Kentucky to address serious deficiencies in the administration of the death penalty in Kentucky. What follows is an excerpt from the executive summary, but you can read the full report here:

Kentucky was put on notice in 2011 that its death penalty process was systematically malfunctioning. The Kentucky Death Penalty Assessment Team issued a comprehensive Report with specific findings and ninetythree (93) corresponding recommendations. In the ensuing nine years, the following facts are noteworthy:

▪ Kentucky continues to experience an exceptionally high error rate in its death sentencing process;
▪ Seven death sentences have been reversed or lifted from defendants;
▪ Kentucky courts have imposed two additional death sentences on defendants;
▪ Kentucky has not executed anyone sentenced to death;
▪ Considerable disparity continues to exist by county in the imposition of death sentences;
▪ Kentucky spends an inordinate amount of money that it does not have to implement a flawed and costly death penalty process; and
▪ Kentucky has not taken significant steps to implement the ninety-three (93) Recommendations made to ensure the death penalty is administered fairly according to national standards and protocols.

In light of developments in the law and science since the 2011 Report, the American Bar Association has added another national Recommendation, i.e., states should prohibit death as a possible punishment for a person aged 21 years or under at the time of the charged offense.

To date, these Recommendations have not been fully and properly reviewed or acted upon by any branch of state government. This fact alone calls into question the legitimacy of continuing to seek the death penalty in statutorily eligible cases in the Commonwealth of Kentucky, let alone the imposition of capital punishment. Over the course of four decades, ample evidence has accrued indicating that Kentucky does not have a system that fairly and reliably assures who should be executed, which has created a real risk of executing the innocent, compromised the credibility of our courts and the outcomes of the judicial process, and robbed the rest of the criminal justice system of funds that could be used productively to protect the safety of Kentuckians and address other societal ills. Under these circumstances, ignoring the well-documented, authoritative findings and sound recommendations of such a respected, learned and balanced group of legal professionals cannot be justified.

Accordingly, the undersigned current and former public defender leaders, with nearly 200 years of experience in the practice of criminal law, have undertaken an analysis and update of the status of the statewide administration of the death penalty since the 2011 release of the Kentucky Death Penalty.

Read the full report here.

Governor Turns Over Rock of Criminal Justice System, Finds Much Messiness

On Wednesday, December 11, 2019, my client Kurt Smith slept outside of a correctional facility for the first time since he was a teenager, after receiving a pardon from Governor Bevin.  He was not the only one, many people received commutations and pardons that either resulted in release, or gave them hope for release for the first time ever. 

While the newly released and those who worked with them rejoiced in the news, a media firestorm was starting.  Latching on to complaints from aggrieved prosecutors, the press started to report that Governor Crazypants had struck again, releasing people willy nilly without regard for safety of justice.  What’s more, the stories insinuated that this was the result of a deep corruption in the Governor’s office, with people paying for pardons with campaign donations.  Since then, those of us who worked with these cases have watched helplessly from the sidelines as the media got the story exactly backwards.  The story of Governor Bevin’s pardon spree is not that about corruption, but the opposite.  This is what happens when a Governor takes the pardon power seriously enough to look beyond those with political influence, and chooses to review all the applications, and in so doing, finds himself confronted with the shocking level of routine injustice in our criminal justice system. 

The story of Kurt’s pardon is rooted in family tragedy.  Kurt had just turned 17 when his son Blake was born.  The black sheep of the family even before he became a teenage parent, Kurt was anxious to show the world what a good parent he could be.  He took two jobs, while alternating weeks of parental care with Blake’s mother.  Over the early morning hours of March 21, 2001, having recently finished a double shift, Kurt was alone in his parents basement with a colicky child who could not keep food down, and cried from hunger.   Exhausted, unsupported and entirely alone, at about 4:00 a.m. Kurt “lost it”, shook his baby and dropped him on the floor.  Baby Blake died as a result of his injuries.  As a result, Kurt has a sentence which will never be commuted:  he wakes up every morning knowing what he did to somebody he dearly loved.

In most cases where the evidence was that the child was killed by an otherwise loving parent, juries have recognized that there is a natural consequence, and mitigated the sentence accordingly.   Reviewing cases with facts similar to this case over the 15 years that followed his case, we could find nobody who got a sentence longer than 20 years.  Most were around 5 years, and in many cases the defendant was shock probated.

However, Kurt’s case was different.  Kurt’s parents hired a private attorney who deplored experts, and refused to hire one.  Instead, she went to trial with “no defense” (her words) and put Kurt on the stand at a time when he had still not fully processed his role in the crime.  The prosecutor had his way with Kurt, and at the end of trial the jury was ready to bury him under the courthouse, giving him a life sentence.  Kurt eventually sought post-conviction relief, but the state court found that counsel had a “strategy” behind not seeking an expert, and denied relief.  The Sixth Circuit was “ inclined to conclude that counsel’s purported strategic decisions on expert consultation were based on insufficient investigation because she failed to consult a mental health expert . . ..”  However, in what has become the “new normal”, the Sixth Circuit found that it was required to defer to the Kentucky court’s contrary conclusions, and let the verdict stand.

This is an increasingly common story.  The standards for effective counsel are vague and easily perverted.  Changes to federal habeas corpus law have left the application of these standards almost exclusively to state courts, who frequently find in favor of the state in questionable cases.   In this environment, when the court system refuses to address an injustice, the only option that remains is clemency.

Prior to the end of the Bevin administration, that system was largely limited to those with the resources to get their case squarely in front of the Governor.  This was not a “pay to play” system as has been reported, just a fact of modern government. Every Governor, regardless of party, had gatekeepers who job included stopping politically risky things like clemency applications from reaching the Governor’s desk.   With the exception of a few high profile cases, or cases being pushed by an influential advocacy group, the only way to get a clemency petition with any hint of controversy to it in front of a sitting Governor was to have a politically influential person support it, who could get a meeting with the Governor or the senior staff.  The presence of these gatekeepers largely kept my indigent clients from ever getting their application heard. 

To his considerable credit, Governor Bevin was against letting most of these applications die in the drawer of a government filing cabinet, and tried to review all of the thousands of applications he received.  What did he find when he bothered to look at the justice system?  That it is a very ugly place, where justice is neither the goal nor a reliable byproduct of the process.  I believe he was genuinely surprised by the extent to which the Court system is now largely immune to serious instances of injustice.   As we look at the most serious cases the Governor commuted or pardoned, we see similar stories repeating themselves:

  • Kathy Williams’ attorney failed to put forth evidence of her extreme emotional disturbance at the time of the offense, which was caused by the death of her son and subsequent traumatic events in her own life.  Then, post-conviction counsel failed to properly present her IAC claim.  She was a model inmate for 15 years until Bevin pardoned her.
  • Jason Jackson’s attorney persuaded him to plead to life without parole for his role as an accomplice in the murder, convincing Jackson that a death sentence was a real possibility at trial.  That advice proved to be unsound when the shooter in the case then went to trial and got 27 years, and another accomplice in the case got 21 years.  Bevin commuted his sentence to 21 years, the same as the other accomplice.
  • Barbara Gordon’s lawyer elected not to present the mountain of evidence of abuse, and the connection between the victims of her crime and that abuse, because he thought it would make the crime appear premeditated.   Bevin commuted her sentence from 70 years – which was nearly twice what was typical for that offense – to 30 years, resulting in her immediate release. 
  • Kathie Harless’ attorney failed to present any evidence on her behalf, even though the medical evidence supported her innocence, and other information would have mitigated her culpability in any case.  Bevin pardoned her as well, releasing her after 18 well behaved years in prison. 

And then there is the story of Delmar Partin.  Much has been made of Mr. Partin’s pardon, which the prosecutor in his case called an “atrocity of justice.”  That same prosecutor later submitted an article to the Lexington Herald-Leader in which he described the case in sensational terms:  “After an intense search in the lab, Kentucky State Police found a few old blood stains but nothing that would be expected from such a brutal beating and beheading. Later it was learned that the defendant liked to go to Florida and hunt alligators. He had created a tool, a ligature, that allowed him to loop a piano wire around the head of the gator and immobilize it long enough for him to shoot it. Dr George Nichols, State Forensic Pathologist, explained that Betty had some kind of ligature around her neck that prevented blood flow to the head. This would prevent any blood flow from an injury. Partin used his skills in killing an alligator to kill Betty [Carnes].”  You would think with that kind of vivid description that of course the implement he is describing was found and presented to the jury, but you would be wrong. 

Indeed, you would even be wrong to believe that the evidence clearly established that Mr. Partin had been alligator hunting more than once in his life.  There was testimony that Partin, an avid hunter, had been on an alligator hunt at least once, and that he enjoyed discussing the process of hunting alligators, which interested him.  However, none of that would explain how he was capable of committing a bloodless beheading.  This is critical because what the prosecutor does not bother to say is that the window of opportunity for Partin to have committed this crime was extremely narrow, and that at both ends of that window Partin was seen by many people looking completely normal.  It was virtually impossible for Partin to have committed this offense without doing something superhuman. 

In short, the Partin case is a great example of prosecutorial magical thinking, where a prosecutor used a vivid story to make up for his lack of evidence, resulting in the conviction of an innocent man.  In the years after conviction DNA testing advanced considerably allowing for touch-DNA testing and hair follicle DNA testing which would have identified the true killer. Instead the prosecutor held fast to his story, refusing to allow potentially exculpatory DNA testing. In an environment where stories substitute for evidence, where trials resemble high stakes gambles, and where the court is afraid to fix problems, what is a Governor to do?   Bevin erred on the side of fixing what he could.  His decisions were not perfect, as he himself has noted, but they made a lot of things a lot better, for a lot of people. 

Nevertheless, the environment the story remains that he was out of control.  Unfortunately, this story is being told largely without the participation of the defense.   Kurt’s pardon has been separately reported close to a dozen times now, with several of those reports speaking with Blake’s mother, or with prosecutors, but no reporter has yet to reach out to anybody on the Smith team.  These stories punish Kurt all over again, as he has invariably been portrayed not as the faithful, giving person that he has become, but the teenager he was at the time of the crime.  We have started to fight back, but the fact that we have to fight to get our voice heard is a function of the media’s bias against Bevin’s actions.  This is a shame, because the story we could be telling – that we should be telling – is how a single Governor, armed with the pardon power, an open mind, and a desire to do right, managed to fix hundreds of injustices in less than week.   It is a remarkable story, indeed.

The content of this blog does not constitute legal advice. The views expressed on this site belong to the original authors alone and do not necessarily reflect the views of the Kentucky Department of Public Advocacy (DPA). All content is provided “as is” for informational purposes only, and the DPA makes no representations as to the accuracy, completeness, currentness or suitability of information on this site. The DPA is not responsible for and does not endorse any materials, information, viewpoints, goods or services available through third party sites linked from this site.