Opposition Brief — Aprile v. Kentucky
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Ae) Gourt, Se
“—t iL. ” D
pec 22 198
No. 86-852
u, JR
PH f-
JOSEPA eek
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1986
J. VINCENT APRILE, II and
JULIE NAMKIN . ° . . Petitioners
versus
COMMONWEALTH OF KENTUCKY =. Respondent
BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI TO THE SUPREME
COURT OF KENTUCKY
JOHN ROBERT LEATHERS
P. O. Box 22242
Lexington, Kentucky 40522
Telephone (606) 257-1485
Counsel of Record for Respondent
Commonwealth of Kentucky
SUSAN STOKLEY CLARY
Kentucky Supreme Court
Capitol Building
Frankfort, Kentucky 40601
Telephone (502) 564-4156
Co-Counsel for Respondent
December 19, 1986
WESTERFIELD-BONTE CO.. 619 W. KENTUCKY~P.O. BOX 3251, LOUISVILLE, KY.
i
TABLE OF CONTENTS
PAGE
Bee er I 66s 6 wh bees ce ccs rscaans i
Appendix Table of Contents ................ pause iv
Constitutional Provisions Involved ................. 1- 2
Counterstatement of the Case ...................... 2- 3
PT TE TO, ogc n kk hack kcceceveescecens 3- 5
Reasons for Denial of the Writ .................... 5-30
I. The Petition for the Writ Should be Denied as
Having Been Sought on Frivolous Grounds. .... 5-12
If. The Holding of Petitioners in Criminal Contempt
of the Supreme Court of Kentucky Was Not
Violative of Due Process and Was an Appro-
priate Exercise of the Criminal Contempt Powers
Oe Se ee 5 a a a a ee cee 13-24
A. The Due Process Standards Advanced by Pe-
titioners Are Inapplicable to a Contempt Pro-
ceeding Before an Appellate Court Such as
the Supreme Court of Kentucky. ........... 15-20
B. Petitioners’ Due Process Rights Were Not
Violated by the Failure of the Supreme Court
of Kentucky to Make Findings of Fact and
ee Be MP Peeve eT Teer eer er 20-22
C. Petitioners’ Due Process Rights Were Not
Violated by the Failure of the Supreme Court
of Kentucky to Set Forth the Standard of
Proof in the Contempt Proceeding Against
AGE Era Cee eer ere ere 22-24
III. The Decision of the Supreme Court of Kentucky
to Hold Petitioners in Contempt Was Not Viola-
tive of Any Rights to Effective Assistance of
RR eee ices Ceca rua ee ae as 24-30
Ra a ES ADEE RR lara hah Se art? ee Pr mT? 30
I A I i te a as 31
il
TABLE OF AUTHORITIES
os
Cases: PAGE
Anders v. California, 386 U.S. 738 (1967) ........ 7
Association of Data Processing Serv. Organizations,
Inc. v. Camp, 397 U.S. 150 (1970) ............. 25
Bloom v. Illinois, 391 U.S. 194 (1968) ............ 17, 23
Cardinale v. Louisiana, 394 U.S. 437 (1969) ...... 25
Cleaver v. Bordenkircher, 634 F. 2d 1010 (6th Cir.,
1 LP 4,7
Commonwealth v. Schumacher, 566 S.W. 2d 762
(Ky, App., 1978) ...:.0cc02sueeeen eee 6
Crowell v. Randell, 10 Pet. 368 (1836) ............ 5, 25
Douglas v. California, 372 U.S. 353 (1963) ........ 7
Evitts v. Lucey, 469 U. S. 387 (1985) ............. 4,5,7
Ex Parte Auditor of Public Accounts, 609 S. W. 2d
682 (Ky., 1980) ..... a 12
Ex Parte Terry, 128 U.S. 298 (1888) ............. :
Ex Parte Robinson, 86 U.S. 506 (1874) ........... 13
Fienup v. Rentto, 74 S. D. 329, 52 N. W. 2d 486
(1992)... oo en ao 21
Flast v. Cohen, 392 U.S. 83 (1968) ............... 26
Hildebrand v. Hildebrand, 32 Wash. 2d 311, 201 P.
20 213 (1949) ... cdo deen 21
In re Buttles, 419 U. S. 1101 (1975) .............. 19
In re Davis, 289 U. S. 704 (iSaa) 55.5 eee 19
In re McConnell, 370 U. S. 230 (1962) ............. 14
In re Gilbert, 276 U. S. 294 (1928) ................ 19
In re Isserman, 345 U. S. 286 (1953), rev’d. 348
U. S. 1 (1954) ..... 5a 18
In re Osborne, 420 U. S. 918 (1975) .............. 19
In re Ruffalo, 390 U. S. 544 (1968) ............... 18
In re Woolley, 74 Ky. % (1874): 2... «42 13
Levisa Stone Corp. v. Hayes, 429 8. W. 2d 413 (Ky.,
|e.) EP 23
Miller v. Veitner, 418 S. W. 2d 32 (Ky., 1972) ..... 23
lil
PAGE
Murdock v. Memphis, 20 Wall. 590 (1875) ......... 2
Nixon v. United States, 418 U.S. 683 (1974) ...... 29
United States v. Barnett, 376 U.S. 681 (1964) ..... 16
U.S. ex rel. Chapman v. F.P.C., 345 U.S. 153, 156
re iy rs ee ik hak eee we kak 4 26
Village of Arlington Heights v. Metropolitan Hous-
ing Development Corp., 429 U.S. 252 (1977) ... = 26
Other:
U.S. Const., Amend. V ........ Teer er error ere . 14
aS ae 7 |
a eS a .14, 15
Ger a aa . 14
TS aos 6 vd painsae 4 ae ds 2 ean edd ews 17
ESIC eT e eee eee er eee eee 5, 22, 20
United States Supreme Court Rules, Rule8....... - 18
Kentucky Constitution, Section 109 .............. 1
Kentucky Constitution, Section 115 ............. 2, 6, 17
Kentucky Constitution, Section 116 .............. 2,6
Kentucky Rules of Civil Procedure, C.R. 52.01 .... 20
Kentucky Rules of Civil Procedure, C.R. 76.12 (4) (6) 3
Kentucky Rules of Criminal Procedure, R.Cr.
ES ee eee eee er ee 20
Stern, Gressman & Shapiro, Supreme Court Prac-
fice (6th Eid., 1986), Section 19.8 .............. 18
- iv
APPENDIX
TABLE OF CONTENTS
PAGE
Transcript of Hearing before Supreme Court of Ken-
tucky held Jane 94, T0606 25.0 n ccc ccc ces cciees's la
Motion for Extension of Time filed by Petitioners in
ease of Sanborn v. Commonwealth (84-SC-566-I),
ee erry rere ree rrr Cer r eT Tee 27a
Order of Supreme Court of Kentucky for Extension
of Time in case of Sanborn v. Commonwealth (84-
SC-566-I), entered August 30, 1986 .............. 32a
Motion for Extension of Time filed by Petitioners in
ease of Sanborn v. Commonwealth (84-SC-566-I),
ee | eee rere ee ears PEE rey rere 33a
Opinion and Order of Supreme Court of Kentucky in
ease of Sanborn v. Commonwealth (84-SC-566-I),
SRO I i ok cs Oe SE 39a
Motion for Reconsideration of Order of August 7, 1986,
filed by Petition in case of Sanborn v. Common-
wealth (84-SC-566-I), filed August 18, 1986 ...... 44a
Order of Supreme Court of Kentucky Denying Motion
for Reconsideration in ease of Sanborn v. Common-
wealth (84-SC-566-1), entered September 25, 1986. 53a
Motion to Vacate the Finding of Contempt of Court,
filed by Petitioners in case of Sanborn v Common-
wealth (84-SC-566-I), filed October 6, 1986 ....... aoa
Order of Supreme Court of Kentucky Denying Motion
to Vacate Contempt Finding in case of Sanborn v.
Commonwealth (84-SC-566-I), entered October 31,
BE ee clecte neue GEOR ETT WLR EES 60a
IN THE
SUPREME COURT OF THE UMTED STATES
October Term, 1986
No. 86-852
J. VINCENT APRILE, IT and
JULIE NAMKIN - - - - - Petitioners
v.
COMMONWEALTH OF KENTUCKY - - Respondent
BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI TO THE SUPREME
COURT OF KENTUCKY
The Respondent, Commonwealth of Kentucky, re-
quests that the Court deny the petition for a writ of
certiorari to review-the Opinion and Order of the
Supreme Court of Kentucky entered in this proceeding
on September 25, 1986, which order had denied recon-
sideration of an earlier order of the Supreme Court of
Kentucky entered on August 7, 1986.
CONSTITUTIONAL PROVISIONS INVOLVED
In addition to those constitutional provisions set
forth by Petitioner, the following provisions of the
Constitution of the Commonwealth of Kentucky are
also involved.
Section 109 of the Kentucky Constitution provides,
in relevant part, as follows:
The judicial power of the Commonwealth shall be
vested exclusively in one Court of Justice which
shall be divided into a Supreme Court, a Court of
Appeals, a trial court of general jurisdiction known
as the circuit court and a trial court of limited
jurisdiction known as the district court.
2
Section 115 of the Kentucky Constitution provides,
in relevant part, as follows:
Procedural rules shall provide for expeditious and
inexpensive appeals.
Section 116 of the Kentucky Constitution provides,
in relevant part, as follows:
The Supreme Court shall have the power to pre-
seribe rules governing its appellate jurisdiction,
... and rules of practice and procedure for the
Court of Justice.
COUNTERSTATEMENT OF THE CASE
While the factual account of the events leading up
to this present controversy is for the most part correct
as supplied by Petitioners, there are some very crucial
inaccuracies which must be corrected. Additionally,
the Petition which has been filed herein contains, both
in its Statement of the Case and in its Argument, cer-
tain factual assertions which are not supported by any
evidence in the record below. For the purpose of clari-
fying the events at the June 24, 1986, show cause
hearing before the Supreme Court of Kentucky, a
transcript of that hearing is provided in the appendix
to this brief. (Hereinafter cited at ‘“‘T.R.—’’) This
sow cause hearing was necessitated by the Petitioners
having failed to file a brief at the conclusion of a ten
month extension after the expiration of the original
time for the filing of the brief. (The original motion
of Petitioners for an extension is set forth in Appendix,
pp. 27a-3la; the order of the Supreme Court of Ken-
tucky to make a timely filing or show cause is set forth
in Appendix, p. 32a) Despite having been under a show
3
ciuse order should they fail to timely file their brief
during the ten months prior to June 2, 1986, Petitioners
instead chose to wait until the very last day of that
period to file a motion for a further extension rather
than filing the brief which had been so long ordered to
be filed. (The second motion of Petitioners for an ex-
tension of time is set forth in Appendix pp. 33a-38a; a
colloquy between Petitioner Aprile and the Justice
Liebson of the Supreme Court about Petitioners having
waited until the very last day to move for an extension
appears at T.R. 17-18).
At the show cause hearing before the Supreme
Court of Kentucky, it was disclosed that Petitioner
Aprile had not, even at that point thirteen months after
the certification of the record, read the record. (T.R. 6)
Indeed, written work on the brief had not even begun
as of that date. (T.R. 40) As Petitioner Aprile
phrased the matter, work had not begun on the ‘‘actual
final product of the brief.”’ (T.R.8) Following their
being held in contempt, Petitioners completed work on
the brief in five months and the appeal ‘‘brief”’ (if a
document 358 pages in length can be called a ‘“‘brief”’)
was finally filed on November 2, 1986, after the Supreme
Court of Kentucky had granted a motion for leave to
file a brief in excess of the fifty page limit set by C.R.
76.12 (4) (6).
SUMMARY OF ARGUMENT
I. The petition for the writ should be denied as
having been sought on frivolous grounds. Petitioners
have not sought the writ of certiorari to vindicate any
4
constitutional rights but rather to subvert the ability
of the Kentucky court system to control the flow of
appeals being prosecuted by publicly funded counsel.
Petitioners apparently seek to obtain relief in this
proceeding so that it ean be combined with the holdings
of this Court in Evitts v. Lucey, 469 U. S. 387 (1985)
and the Sixth Cireuit in Cleaver v. Bordenkircher, 634
F. 2d 1010 (6th Cir., 1980). The net resuit of those two
prior cases, if coupled with an outcome herein favorable
to Petitioners, would be to leave the Supreme Court of
Kentucky either unable to force the expeditious treat-
ment of appeals on its docket or to embroil it in a con-
troversy with the executive and legislative branches of
state government. A further effect would be to leave
criminal defendants such as the one represented by
Petitioners below without access to an expeditious
appeal, a matter about which Petitioners concede such
persons to be concerned . (T.R. 28)
Il. The holding of Petitioners in criminal con-
tempt of the Supreme Court of Kentucky was not vio-
lative of due process and was an appropriate exercise
of the criminal contempt powers of the Court. Peti-
tioners have undermined the Supreme Court of Ken-
tucky’s ability and duty, as manifested in the Constitu-
tion of the Commonweal*h of Kentucky to control the
appellate processes of the state. For such actions,
Petitioners were rightly held in contempt of court by
the Supreme Court of Kentucky. In the finding of
Petitioners in contempt, the Supreme Court of Ken-
tucky followed constitutionalfy sound procedures for
such proceedings before an appellate level court. Such
4)
sufficient procedures consisted of notice, opportunity
to be heard and a result with findings and conclusions
based upon evidence introduced into the record of such
proceeding.
III. The decision of the Supreme Court Of Ken-
tucky to hold Petitioners in contempt was not violative
of any rights to effective assistance of counsel. The
right to counsel argument of Petitioners should not be
considered by the Court for the reason that such argu-
ment was not raised in the proceeding below and is not
supported by any evidence in the record of this pro-
eeeding. 28 U.S.C. 1257(3); Crowell v. Randell, 10
Pet. 368 (1836). Such argument should further be
rejected for the reason that Petitioners lack standing
to make such argument. Even should the argument be
considered properly raised, the argument is spurious
because this Court has expressly indicated that applica-
tion of sauctions against attorneys is an available
option to state courts in situations where sanctions
could not be applied to the clients of said attorneys
without violation of the constitutional right to effective
assistance of counsel. Evitts v. Lucey, 469 U.S. 387
(1985).
REASONS FOR DENIAL OF THE WRIT
I. The Petition for the Writ Should be Denied as Having
Been Sought on Frivolous Grounds.
The currently pending petition should be denied on
the grounds demonstrated, infra, that the due process—
contempt arguments of Petitioners are frivolous be-
cause they are inapplicable to the facts at hand. Of
even more importance to the maintenance of judicial
6
integrity is that this proceeding is pressed by Peti-
tioners not to vindicate their due process rights but
rather to usurp the power of the Supreme Court of
Kentucky to control the process of regulating the flow
of cases through the state’s appellate structure. In
Kentucky, the power to make rules applicable to such
proceedings is vested by Section 116 of the Kentucky
Constitution in the Supreme Court of Kentucky. In-
deed, in regard to appellate proceedings, the Supreme
Court of Kentucky is required to provide rules which
will ‘provide for expeditious and inexpensive appeals.”’
Ky. Const. See. 115. As Justice Leibson observed at
the show cause hearing, the Supreme Court of Ken-
tucky has ‘‘a duty to maintain the authority of the
Court”’ over such matters. (T.R.18) This is a power
which has been held to be exclusively within the judicial
power in Kentucky, excluding even interference by the
Kentucky legislature. Commonwealth v. Schumacher,
566 S. W. 2d 762 (Ky. App., 1978) Indeed, it would
be fair to say that this case is not about due process but
in reality involves a power struggle over control of the
process of appellate advocacy in public counsel criminal
eases. It further is the case that always present in
such death penalty cases is the fact that defense counsel
often bear philosophical opposition to the penalty and
that delay serves, if nothing else, to prevent the carry-
ing out of the sentence.
The issue which lurks behind this case is that of
effective assistance of counsel requirements for cerim-
inal appeals being handled by the Office of Publie
Advocacy. In regard to the situation in Kentucky, the
7
leading federal cases on point are Cleaver vy. Borden-
kircher, 634 F. 2d 1010 (6th Cir., 1980) and Evitts v.
Lucey, 469 U. S. 387 (1985). In Cleaver, the Sixth
Circuit upheld the issuance of a writ of habeas corpus
to a prisoner whose appeal had been dismissed when
his publicly supplied counsel was denied an extension
of time in which to file an appeal brief. The holding
was based upon the Sixth Circuit’s conclusion that the
Sixth Amendment right to counsel was denied when
such extension was denied to an attorney whose case-
load made it physically impossible for him to file in a
timely fashion. In Fitts, this Court upheid the issu-
ance of a writ of habeas corpus to a prisoner whose
appeal had been dismissed for failure of his publicly
supplied counsel to file a statement of appeal as re-
quired by the procedures of Kentucky. In both cases,
reliance was placed upon the right to counsel interpre-
tations of Anders v. California, 386 U. 8. 738 (1967)
and Douglas v. California, 372 U. 8. 353 (1963). In
light of those two prior cases, the Supreme Court of
Kentucky finds itself in a position where it cannot
deny such ‘‘motions’’ for an extension of time. As
Justice Leibson noted about such actions by Petition-
ers, Petitioners were “telling [the Supreme Court of
Kentucky] not that you need an extension of time and
we should give it to you, but we have to give it to you.”
(T.R. 18, emphasis added)
Petitioners represented a convicted murderer and
rapist. In March, 1984, Parramore Lee Sanborn was
convicted of capital murder, first degree sodomy, first
degree rape and first degree kidnapping; for those
8
offenses, he was given the death penalty. Fourteen
months later, on May 30, 1985, the record in the case
was certified for appeal. Following that certification,
Petitioners were given until August 2, 1985, in which
to file their appeal; they then received a ten month
extension coupled with a show cause order if they did
not file the brief by June 2, 1986. The due date for the
appeal brief was thus thirteen months after the record
had been certified on appeal. Instead of filing their
brief on June 2, Petitioners on that very due date filed
instead a motion for another ten month extension.
Given the holdings of the Sixth Cireuit in Cleaver and
of this Court in Evitts, the Supreme Court of Ken-
tucky had no choice but to allow Petitioners to continue
to delay the filing of the appeal brief. The entry of any
sort of sanction against Sanborn himself would have
been grounds for a grant of habeas corpus. Thus, if
the entry of a sanction against Sanborn was the only
option open to the Supreme Court of Kentucky, there
simply would have been no procedural limit to when
Petitioners would be required to file beeause such sane-
tion would not in fact have been available due to the
effective assistance of counsel requirements of Cleaver
and Evitts. The usage of any sanction against Sanborn
would have been pointless since reversal of the Su-
preme Court of Kentucky for such actions would have
been inevitable. The ‘‘motion” of Petitioners for an
extension was not a motion at all—the Supreme Court
of Kentucky had no choice but to grant it, as Justice
Leibson quite aptly observed. (TUR. 18)
9
Now with this petition, Petitioners have in effect
‘dropped the other shoe.”’ The cloak of constitutional
‘‘questions’’ presented does not hide the substance of
this ploy. With Cleaver and Evitts as their base, Peti-
tioners ask this Court to hold that counsel cannot con-
stitutionally be penalized for failure to file briefs in a
» de
timely fashion. With no sanction available against
their client, the net result is to elevate the Office of
Publie Advocacy beyond the reach of time constraints.
According to this argument, their client could not con-
stitutionally be penalized for failure to file, Petitioners
could not constitutionally be penalized for failure to
file and, as if by magic, any time constraints upon Peti-
tioners disappeared. Of even greater significance is
that not only would time constraints disappear, the
ability of the Supreme Court of Kentucky to regulate
the state’s inferior courts, its appellate process, the
actions of its practitioners and the Supreme Court of
Kentueky’s own processes would similarly disappear.
At stake in this case is no less than the question of
whether the time periods for filing appeals for criminal
indigents in the Kentucky courts will be controlled by
the Supreme Court of Kentucky or by Petitioners and
those similarly situated.
Indeed, there is no reason to think that the question
is limited to time periods for filing appeals; similar
tacties would seem equally effective in such other mat-
ters as length of the appellate brief, length of time
assiened for oral argument and most of the other rules
of procedure applicable to the processing of appeals.
Usage of the tactic in related areas is amply demon-
10
strated by the fact that, when Petitioners did finally
choose to file a brief for their client, it was 348 pages in
length. Such result is not unusual, Justice Leibson
having observed that the Supreme Court of Kentucky
regularly receives from the office of Petitioner ‘four
or five hundred pages of briefing, most of whieh isn’t
even remotely arguable, much of which isn’t, instead of
focusing on the major points.”?’ (T.R. 26) Further
compounding such abusive tactics is the fact that it
appears that in some cases, briefs from the office of
Petitioners have been ‘‘eut and pasted’? on word pro-
cessors from prior briefs, with the office at times
forgetting even to change the name of the criminal
defendant from one case to the other (T.R. 15) or
having briefed a criminal offense for which the de-
fendant was not even convicted. (T.R. 15, comment
of Justice Wintersheimer) Furthermore, there is no
reason to suppose that the guerrilla tacties being per-
fected by Petitioners will be limited to the Kentucky
court system or even to all the other state court systems
in the United States. If Petitioners see fit to ignore
this Court’s five page limitation upon a reply in this
case, it is easy to envision the grounds upon which such
‘right’? will be asserted. Even this Court may find
itself, as did Justice Leibson, ‘tat the merey of the
lawyer, because otherwise we can have a collateral
attack.’’ (T.R. 26)
Assuming that what Petitioners really seek in this
proceeding is an ability to set their own time schedule
for the filing of criminal appeal briefs for indigents,
was there any other alternative open to the Kentucky
11
Supreme Court than to hold them in contempt after a
proper hearing? In their Petition, Petitioners state
that ‘‘The real source of the problem is the burden of
overload upon the public advocates.’” (Petition, p. 13)
An additional contributing factor is the policy of Pe-
titioners’ office to assign two attorneys to death penalty
cases and to have both attorneys read the entire record.
(T.R. 32) In their motion to the Kentucky Supreme
Court for reconsideration of the contempt citation,
Petitioners stated that ‘tthe Commonwealth has not
budgeted adequate funds to the Department of Public
Advoeacy’’. (Motion for Reconsideration, p. 4) The
matter of the funding of the Office of Public Advocacy
is a matter over which the Supreme Court of Kentucky
has absolutely no control; the funding decision is a
political matter about which Petitioner Aprile is very
knowledgeable given his frequent appearances before
the Kentucky General Assembly as a lobbyist for his
office. What is sought herein is either the help of the
Supreme Court of Kentucky in securing that which
Petitioners’ employer could not secure through the
legislative process or to visit the consequences of their
lobbying failure upon their clients and the court
system. -
Petitioners in this case have deliberately placed
themselves into a position in which the Supreme Court
of Kentucky was foreed to make a choice among three
alternatives: (1) to give up on taking any action
against Petitioners, which action when combined with
Cleaver and Evitts would leave the control of the Su-
12
preme Court’s processes virtually in the hands of Pe-
titioners and their colleagues; (2) to embroil itself into
the processes of the executive and legislative branches
of Kentucky state government by ordering that addi-
tional funding be provided to the Office of Publie Ad-
vocacy; or (3) to hold Petitioners in contempt for
having created the dilemma with which they attempted
to confront the Court. It must be obvious that abdi-
cation of control of the judicial process was an un-
acceptable alternative, not just for the Supreme Court
of Kentucky, but for other state courts and for this
Court as well. Neither was the second alternative ap-
propriate in a state as firmly committed to the doctrine
of separation of powers as is Kentucky, and it would
seem equally unacceptable should the tactic be ‘‘ex-
ported’”’ to the federal svstem. See, €.9., Rar Parte
Auditor of Publie Accounts, 609 S. W. 2d 682 (BY.
1980). Thus, only the third alternative remained in
view of the usage of two attorneys om the case and
absent a showing of any reasonable cause why brief-
ing of the case had not even begun at the time of the
show cause hearing. It must be coneluded that Peti-
tioners deliberately put themselves into the position to
force that choice, that the choice came out the only
way that any reasonable appellate court would have
chosen and that Petitioners should not mow be allowed
to eseape the fruits of their attempt or to foist those
unacceptable alternatives upon the Supreme Court of
Kentucky through the help of this Court.
13
II. The Holding of Petitioners in Criminal Contempt of the
Supreme Court of Kentucky Was Not Violative of Due
Process and Was an Appropriate Exercise of the Crim-
inal Contempt Powers of the Court.
The ability of the Supreme Court of Kentucky,
both under state and federal law, to punish for con-
tempt is well settled.
The power to punish for comtempts is inher-
ent in all courts; its existence is essential to the
preservation of order in judicial proceedings, and
to the enforcement of the judgments, orders and
writs of the courts, and consequently, to the due
administration of justice. Hae Parte Robinson, 86
U.S. 506, 509 (1874).
‘‘And such is the recognized doctrine in reference to
the powers of the courts of the several States’. Fa
Parte Terry, 128 U.S. 298, 303 (1888). Similarly it
is well settled in both state and federal practice that
such power is activated by the issuance of a ‘‘rule”’
or a ‘‘show cause order’’. Ee Parte Robinson, supra,
utilized a show cause order in federal practice and the
practice in Kentucky dates back at least to In Re
Woolley, 74 Ky. 95 (1874), in which such procedure
was utilized by the state’s then-highest court, the
Court of Appeals. There are literally hundreds of
reported cases in the federal and state system in the
United States which have used the practice commonly
and continuously since the founding of this country.
In review of this case, however, it is necessary to
keep in mind one very crucial difference between the
availability of contempt power in the federal system
and the state system. Despite the fact that many fed-
14
eral cases speak of the authority to punish for contempt
as being inherent in the federal courts, there has long
been federal legislation applicable to that contempt
power. See, 18 U.S.C. 401. This federal statutory
dimension, which is criminal in nature, probably ex-
plains at least in part the long search by this Court
for a meaningful distinction between civil and criminal
contempt. In the state of Kentucky, there is no legis-
lation which applies any such limits or restrictions
upon the contempt power of the judiciary. As a result
of this, many of the cases cited by Petitioners in sup-
port of the Petition simply have no applicability to
the facts at hand. Often a federal case will apply a
restrictive view of contempt, not because of any federal’
constitutional requirement but because of a federal
statutory requirement. See, e.g., In Re McConnell, 370
U.S. 230 (1962). The effect of the dichotomy between
federal statutory provisions and federal constitutional
provisions will be that only those United States Su-
preme Court decisions reviewing state contempt pro-
ceedings and those federal decisions based on federal
constitutional requirements are applicable herein. In
regard to that latter category, even those cases may be
of limited authority given the possibility that the due
process clause of the Fifth Amendment (which is the
constitutional source in federal contempts) may not be
exactly mirrored by the requirements of due process
under the Fourteenth Amendment (which is the con-
stitutional source in state contempts).
15
In attacking the finding of the Kentucky Supreme
Court that they were in contempt for failure to file a
timely brief, Petitioners raise a multitude of argu-
ments, some of which purport to be based on the re-
quirement of Due Process and others of which lack
any apparent federal constitutional basis. Whether
taken individually or in the aggregate, the contentions
of Petitioners are invalid and the Petition should be
denied.
A. The Due Process Standards Advanced by Petitioners are
Inapplicable to a Contempt Proceeding Before an Appellate
Court Such as the Supreme Court of Kentucky.
The Petitioners have advanced a number of bases
on which it is alleged that their having been held in
contempt by the Supreme Court of Kentucky was in
violation of certain due process standards applicable
to state proceedings under the Fourteenth Amendment.
Included among the alleged violations of due process
were such disparate matters as the size of the vote by
which they were held in contempt, an alleged failure
to specify the elements of their offense, an alleged fail-
ure to specify the standards applicable to their conduct,
an alleged failure to make findings of fact and conclu-
sions of Jaw and an alleged failure to apply the appro-
priate standard of proof inthe case. While it certainly
is true that due process is required in any state court
proceeding, including the one below, Petitioners have
made a fundamental error in concluding that the stand-
ards which they have advanced are the ones which
governed the proceeding below. This error on their
16
part comes from a failure to distinguish between a
contempt proceeding before a trial court (with or with-
out a jury) and a contempt proceeding before the
highest appellate court of the jurisdiction—here the
Supreme Court of Kentucky. The hodge-podge of
arguments advanced by Petitioners relating to the
technical aspects of the contempt finding are difficult
to respond to because of such confusion. In this petty
variety of contempt, it is difficult to envision how Pe-
titioners envision the contempt powers of the Supreme
Court of Kentucky should be exercised. It would seem
absurd for the highest court of the state to in effect
charge itself as a trial judge would charge a jury and
then to withdraw for consideration as would a jury of
laymen. Common sense would indicate that contempt
in this appellate setting is fundamentally different than
in the setting of trial courts which is common to the
eases utilized by Petitioners.
This Court has previousiy considered the distinction
between trial court contempt powers and appellate
court contempt powers in United States v. Barnett, 376
U.S. 681 (1964), in which famous case Ross Barnett,
then governor of Mississippi, was held in contempt by
the United States Court of Appeals for the Fifth Cir-
cuit for disobedience to that court’s order that James
Meredith, a black person, be admitted as a student at
the University of Mississippi. In that case, the Court
held that a jury trial was not required in a proceeding
to determine contempt regarding a Court of Appeals
order, rejecting the argument of Governor Barnett
17
that a jury trial was required by 18 U.S.C. 402, the
Sixth Amendment or the due process clause of the
Fifth Amendment. While the apparent conclusion of
Barnett that there was no right te jury trial in econ-
tempts regardless of the punishment has been modified
by Bloom v. Illinois, 391 U. 8. 194 (1968), so that a
serious contempt would activate jury trial protection,
there has been and should be no retreat by this Court
from the conclusion that an appellate setting is fun-
damentally different from a contempt proceeding in
a trial court.
In the case at hand, the Supreme Court of Ken-
tucky’s usage of the contempt power can most fairly
be analogized to the usage of a disciplinary power over
a practitioner responsible to that court for his actions
taken on h~ half of his client. The Supreme Court of
Kentucky is charged by Section 115 of the Kentucky
Constitution with the duty of providing rules for ‘‘ex-
peditious and inexpensive appeals,’’ a duty as surely
present in a case where publicly provided counsel
handles the appeal as where private counsel is in
charge. In the case at hand an expeditious appeal
could hardly have been said to be taking place where
the three month briefing time (between certification
of record in May, 1985, and the original due date in
August, 1985) had already been extended for ten
months and Petitioners sought still an additional ten
month extension. It should additionally be noted that,
all the while that Petitioners delayed the preparation
of their brief, their client languished in prison. While
18
their position may be that he thereby escaped issuance
of a death warrant, it is equally possible that their
appeal might have been successful and that some result
culminating in his release might have been obtained.
It is not the function of Petitioners to dictate the out-
come of a case by their own course of conduct—their
duty to the Supreme Court of Kentucky and to their
client was to file a competent, professional brief in a
timely manner. They violated that duty, gave no good
reason for their failure and were quite properly dis-
ciplined by the Supreme Court of Kentucky for dis-
obedience.
In the closely related, but obviously more serious,
area of attorney discipline, the Court has long required
scrupulous obedience by its own practitioners to the
orders of the Court. Despite this Court’s conclusion
that a disbarment proceeding is ‘‘quasi-criminal’’ (/n
re Ruffalo, 390 U.S. 544 [1968]), the Court’s own rule
provides for a summary procedure in which the burden
is placed upon the attorney to show cause why he
should not be disbarred. Rule 8; In re Isserman, 345
U. S. 286 (1953), rev’d. 348 U. S. 1 (1954). Although
the current version of Rule 8 does not expressly so pro-
vide, it appears that such decisions are made simply
upon a majority vote of the justices of this Court par-
ticipating. In re Isserman, 348 U.S. 1 (1954) ; Stern,
Gressman & Shapiro, Supreme Court Practice (6th
Ed., 1986), Section 19.8. The reported decisions of the
Court seem to indicate that such disbarment decisions
are made by the Court simply upon the written filings ;
19
if oral arguments do in fact take place in such pro-
ceedings, they appear to be rare. See, e.g., In re Os-
borne, 420 U. S. 918 (1975); In re Buttles, 419 U. S.
1101 (1975). The sanction imposed by the Supreme
Court of Kentucky upon Petitioners (suspended fines
of $500 and $250) falls well below the penalty of dis-
barment and was issued by procedures (including oral
argument) which go far beyond those required by this
Court for the policing of its own practitioners.
In the application of sanctions to its own practi-
tioners,: this Court utilizes show cause orders in the
same fashion utilized by the Supreme Court of Ken-
tucky. Rule 8. Such procedure has been used by this
Court to issue a reprimand to an attorney for failure
to pay a bill of the Court’s clerk for costs. In re Davis,
289 U. S. 704 (1933). In such cases, the Court has
noted the necessity of giving its ‘‘action a punitive
quality to make the high obligation of the members of
the bar to respect decisions of the Court’’. In re
Gilbert, 276 U. S. 294 (1928). In Gilbert, the Court
suspended from practice for a period of six months a
member of the bar who had failed to obey the Court’s
order that he return a portion of the fee which he had
claimed for service as a special master for the Court.
Obedience to its orders is every bit as important to the
Supreme Court of Kentucky as is obedience to the
orders of this Court. The contempt finding against
Petitioners was made by the Supreme Court of Ken-
tucky under circumstances which would have similarly
moved this Court, had the actions taken place here
20
rather than in Kentucky, and such findings were made
in a manner procedurally identical to those which this
Court has used regarding its own practitioners. Such
procedures are not violative of any standards of due
process and should be upheld by the Court.
B. Petitioners’ Due Process Rights Were Not Violated by the
Failure of the Supreme Court of Kentucky to Make Find-
ings of Fact and Conclusions of Law.
Petitioners contend that their due process rights
were violated by the failure of the Supreme Court of
Kentucky in its August 7 order to make findings of
fact and conclusions of law. As their basis for alleg-
ing such failure to be violative of due process, Peti-
tioners point to provisions of the procedural rules
applicable in Kentucky in civil cases (C.R. 52.01) and
criminal eases (R.Cr. 9.26[2]). From this, Petitioners
reason that ‘‘the failure of the Supreme Court of Ken-
tucky to follow its own rules is fundamentally unfair
and constitutes a violation of due process’. (Petition,
p. 11)
It cannot fairly be stated that the Supreme Court
of Kentucky has failed to follow its own rules. Ini-
tially it should be noted that there exists no Kentucky
authority for the proposition that the provisions of
the Civil Rules or the Criminal Rules are even ap-
plicable to a contempt proceeding before the Supreme
Court of Kentucky. Assuming such to be the case,
the August 7 order of the Court is in compliance with
both rules because the opinion rendered there fairly
states the findings of fact and conclusions of law, thus
21
obviating the need for a separate document embodying
the findings and conclusions. C.R. 52.01; R.Cr. 9.26(2).
Even if one would assume, however, that the August
7 order did not in fact comply with the requirements
of the Kentucky procedural rules, Petitioners cite
absolutely no authority for the proposition that such
failure constitutes a violation of due process. The two
cases of sister states cited by Petitioners contain no
authority for such a proposition. In Fienup v. Rentto,
74 8. D. 329, 52 N. W. 2d 486 (1952) a South Dakota
trial court’s contempt finding was reversed for failure
to make findings and conclusions as required by estab-
lished state caselaw; there is not even a hint in the
opinion that such findings were required by anyone’s
standard of due process—state or federal. Similarly
in Hildebrand v. Hildebrand, 32 Wash. 2d 311, 201
P. 2d 213 (1949) a trial court was reversed for fail-
ure to make findings required by state law; no portion
of the opinion even addresses any question of due
process. It is further significant to note that both de-
cisions involve contempt findings by trial courts; it
would seem obvious that considerations applicable to
trial courts are not directly applicable to proceedings
before the highest court of the state.
Even if it were correct that the Supreme Court of
Kentucky had failed to make findings and conclusions
required by state law, such failure could constitute
grounds for review in this Court only of such failure
rose to a level of impairment of some right protected
by the United States Constitution. This Court is not
22
simply an appellate court with the power to review all
of the actions of the Supreme Court of Kentucky. Only
those matters which are governed by federal law can
here be reviewed. Murdock v. Memphis, 20 Wall. 590
(1875) ; 28 U.S.C. 1257(3). No such matter is pre-
sented by these facts. The August 7 order of the
Supreme Court of Kentucky contains sufficient findings
and conclusions; if it does not, such failure is solely
a matter of state law which is outside the review of
this Court.
C. Petitioners’ Due Process Rights Were Not Violated by the
Failure of the Supreme Court of Kentucky to Set Forth the
Standard of Proof in the Contempt Proceeding Against
Peiitioners.
Petitioners contend that a violation of due process
has occurred in their contempt citation by virtue of the
fact that the Supreme Court of Kentucky did not
identify what standard of proof was necessary for the
finding of contempt. From that alleged failure and
the nature of the 4-3 vote of the Supreme Court, Pe-
titioners conclude that a finding of criminal contempt
has been entered against them without proof of ‘guilt”’
beyond a reasonable doubt, as would be required in
criminal cases.
Whatever may be the theoretical difference between
criminal contempt and civil contempt, such distinction
is insignificant as a practical matter in Kentucky. In
modern dealings with the special problems posed by
contempt, Kentucky’s highest court has observed that
such proceedings are in a class by themselves, involving
unique aspects and that attempts to apply ordinary
23
rules of practice and procedure simply cause confusion.
Levisa Stone Corp. v. Hayes, 429 S. W. 2d 413 (Ky.,
1968). In the absence of a criminal statute analogous
to 18 U.S.C. 401, there is no reason for the state to
mirror the great importance placed in the federal sys-
tem on the distinction between civil and criminal
contempt.
Since 1972, Kentucky’s judiciary has abandoned the
attempt to maintain a practical distinction between
civil and criminal contempts, noting that ‘‘the long and
tortuous effort of the courts to classify contempts as
civil or criminal has been a fruitless search for the im-
possible’. Miller v. Veitner, 418 8S. W. 2d 32, 34 (Ky.,
1972). Rather than distinguishing between civil and
criminal contempts, the Kentucky courts have noted
that ‘‘[t]he important distinction to be drawn, it seems
to us, is between those contempts for which a person
cannot be jailed or fined without a jury trial and
those for which he can’’. Id. at 35. Since it is clear
that the punishments imposed on Petitioners here
(fines of $500 and $250, each suspended) did not rise
to the level necessary to require a jury trial under the
holding of Bloom vy. I/linois, 391 U. S. 194 (1968), it
follows that the distinction between the types of con-
tempt is of no importance under state law, and this
Court should not reimpose upon the state its long-
abandoned search for a distinction between the two
types of contempt.
Both this argument and the argument of Petition-
ers concerning the size of the vote by which they were
24
held in contempt raise a very difficult practical prob-
lem — how to structure such proceedings before an
appellate court. If the punishment involved does not
activate the right to trial by jury, how is the appellate
court to proceed? It seems absurd to require the
highest court of Kentucky to in effect ‘‘charge”’ itself
as to a standard of proof as a trial judge would charge
a jury. In fact, the proceeding is unique enough that
it is not actually possible to draw any analogy from
criminal trials proceeding at a trial level.
III. The Decision of the Supreme Court of Kentucky to
Hold Petitioners in Contempt Was Not Violative of
Any Rights to Effective Assistance of Counsel.
Petitioners contend that the usage of the contempt
power of the Supreme Court of Kentucky against them
for their failure to file a timely brief in this matter
constituted a violation of the effective assistance of
counsel rights articulated by this Court in Evitts v.
Lucey, supra. This is an argument which is spurious
for a number of important reasons, all of which lead
to the conclusion that the Petition should be denied.
Of threshold importance is that there is lacking in
the record in this proceeding a fundamental require-
ment relating to the effective assistance of counsel
argument of Petitioners—to put matters most simply,
the argument was not raised in the record below. In
neither their oral argument before the Supreme Court
of Kentucky nor their written argument in support of
their Motion for Reconsideration did Petitioners raise
the effective assistance of counsel argument which they
now assert from Evitts. The raising of such matter
25
in the record before the court below is a prereyuisite
to review authority in this Court upon such proposi-
tion. 28 U.S.C. 1257(3) Without such basis in the
record below, it cannot be said that such right has been
‘‘drawn in question’’ by the decision of the Supreme
Court of Kentucky. This requirement is a funda-
mental one from which the Court has not deviated since
Justice Story was a member of this Court. Crowell v.
Randell, 10 Pet. 368 (1836). Such requirement exists
both by act of Congress and by policy of this Court
due to the fundamental principal of federalism that
it is crucial that state courts be given the first oppor-
tunity to pass upon such federal arguments before
they are called upon to face review before this Court.
Cardinale v. Louisiana, 394 U. 8. 437 (1969). In the
absence of a proper raising of the issue in the record
below, this argument in the Petition should be treated
as a nullity in the consideration of whether to grant
the Writ.
In addition to the fact that the effective assistance
of counsel argument was not raised below, the usage of
such argument before this Court is also defective due
to a lack of standing on the part of Petitioners to raise
the argument. Although it has been observed that
‘*(g)eneralizations about standing to sue are largely
worthless as such’”’ [Association of Data Processin::
Serv. Organizations, Inc. v. Camp, 397 U. 8. 150, 151
(1970) ], the basic notion of ‘‘standing”’’ is that no per-
son is permitted to litigate the legal rights of another
person. This most fundamental definition of standing
————
26
is helpful in this case because the facts at hand are
relatively simple. While standing is ‘‘determined by
the specific circumstances of individual situations’’
[U. S. ex rel. Chapman v. F.P.C., 345 U.S. 1538, 156
(1953) ], a historical survey of the difficult standing
eases shows that their difficulty arose from the fact that
the cases by and large involved questions of wide publie
interest. See, e.g., Village of Arlington Heights vy.
Metropolitan Housing Development Corp., 429 U.S, 252
(1977) ; Flast v. Cohen, 392 U.S. 83 (1968). The great
standing cases involved attempts by peripherally in-
terested persons to litigate matters of public interest
in which their lack of close factual connection ran them
afoul of the case and controversy requirements of
Article III of the United States Constitution. Absent
a matter of public interest, people rarely take the time
and expense to litigate a matter in which they have
no personal stake. Of course, such practical restric-
tion is inapplicable to persons whose salaries and ex-
penses are already borne at public expense.
In the facts at hand, Petitioners lack standing to
raise the issue of ineffective assistance of counsel. It
is certain that the rights of Petitioners have not been
violated in any way. If anyone would suffer from in-
effective assistance of counsel, it would have been their
client, Mr. Sanborn, and he is not a party to this pro-
ceeding. Neither are there any facts in the record
below from which it could be coneluded that the actions
of the Supreme Court of Kentucky impaired in the
slightest manner the Petitioners’ representation of Mr.
27
Sanborn. Neither in their Petition nor in any of the
proceedings below did Petitioners point to the slight-
est manner in which such right was factually impaired.
The closest thing to facts upon which to base such an
argument is found in Petitioners’ assertion that ‘‘a
chilling effect upon the quality of legal representation
may oceur’’. (Petition, p.13) Given that Petitioners
did (finally, and at a time virtually of their own choos-
ing) file a 358 page brief on behalf of Mr. Sanborn, it
appears unlikely that Mr. Sanborn’s case was handled
with any less effectiveness after the contempt citation
than it had been prior to that time. There is no factual
basis on which to judge the validity of such claim and
it must be rejected by the Court.
Even if it were assumed that the contempt sanction
invoked against Petitioners did have some bearing
upon their ability to represent this or other clients,
such action by the Supreme Court of Kentucky still
would not be in violation of the effective assistance
of counsel rights of Mr. Sanborn. Anticipating that
the net effect of Hvitts might be to impair the ability
of states to enforce procedural rules in criminal cases,
Justice Brennan outlined (among the ‘‘numerous
courses remain(ing) open’’) that ‘ta State may cer-
tainly enforce a vital procedural rule by imposing
sanctions against the attorney, rather than against the
client.’’ LEvitts, supra, p. 399. In this proceeding
Petitioners seek this Court to reverse the Supreme
Court of Kentucky for taking exactly that course of
conduct which the Court indicated was appropriate
28
in Evitts. Without at least the power to impose sanc-
tions against practitioners, the Supreme Court of Ken-
tucky will be left absolutely helpless and at the merey
of what ever conduct Petitioners and other similarly
situated may, in their own absolute discretion, believe
is appropriate conduct for the defense of their clients.
Petitioners assert that actions such as that below have
a “‘chilling effect’? upon practitioners; in reality, it
is just the excesses of Petitioners and others which
have had a negative effect upon appellate practice in
Kentucky which goes far bey nd any ‘‘chilling effect’’.
The tactics of Petitioners have wrought chaos on the
Kentucky appellate system and they seek license from
this Court to continue and expand those tacties. It
was to resist exactly such trend that Petitioners were
held in contempt by the Supreme Court of Kentucky
and the action was entirely appropriate.
The contempt citation issued below to Petitioners
was intended to send a clear message to Petitioners
and to other practitioners who had engaged in the past
in similar tactics. The message sent by the Supreme |
Court of Kentucky was that there is an end to the
patience of the Court and that all appeals must be
processed in a speedy, expeditious fashion, in accord-
ance with the rules and orders of the Court. It was
a message deliberately sent and it was absolutely neces-
sary as an action by the Supreme Court of Kentucky
in view of the ‘‘no-choice’’ motions with which it was
faced in the aftermath of Cleaver and Evitts.
i anieiiiicieaiianilll
29
The imposition of the federal controls in Cleaver
and ELvitts makes it wasteful of the time and efforts
of all involved for the Kentucky court system to deny
such motions and dismiss the appeals of criminal de-
fendants. The only control which this Court has left
to the judiciary of Kentucky is to apply sanctions
against attorneys who willfully refuse to follow the
briefing schedules which the Kentucky Supreme Court
is required by state law to impose and supervise.
Those lawyers who practice before the Supreme
Court of the United States have little doubt as to how
swift will be the punishment and how awesome will
be the consequences for willful disobedience of the
orders of this Court. The paucity of case law attests
to the effectiveness of that certainty in controlling the
processes of this Court. Even the President of the
United States has shown obedience to the lawful orders
of this Court rather than risking disobedience. Nixon
v. United States, 418 U. 8S. 683 (1974). This Court
would not tolerate for a moment the tactics which
Petitioners have practiced before the Supreme Court
of Kentucky. If this Court should deny to the Su-
preme Court of Kentucky the power to punish Pe-
titioners for the contempt which they seem deliberately
to have brought upon themselves, then this Court will
be sending a message to the practicing members of the
Kentucky Bar and every other state bar in the United
States. That message will be that in the publicly
funded defense of criminal defendants there are no
rules. That message would be as applicable to federal
30
proceedings as to State proceedings, to trial proceed-
ings as to appellate proceedings, and to private defense
as to publicly funded defense; there would be no
limit to the power which Petitioners and others like
them would assert. There should be no mistake about
it. This attack upon the contempt power of the Su-
preme Court of Kentucky is a major attack upon the
integrity of the judicial process by Petitioners and
others similarly situated who seek to bend the rules
of the system to fit their own philosophical positions.
Surely this Court cannot leave the Supreme Court of
Kentucky in such position of helplessness against
this attack; therefore, the Petition for Writ of Cer-
tiorari should be denied by the Court.
CONCLUSION
For the foregoing reasons, it is respectfully sub-
mitted that the Court should deny the Petition for Writ
of Certiorari and let stand the decision of the Supreme
Court of Kentucky holding Petitioners in contempt of
that court.
Respectfully submitted,
JoHN Ropert LEATHERS
P. O. Box 22242
Lexington, Kentucky 40522
Telephone (606) 257-1485
Counsel of Record for Respondent
Commonwealth of Kentucky
Susan STokiey CLary
Kentucky Supreme Court
Capitol Building
Frankfort, Kentucky 40601
Telephone (502) 564-4156
Co-Counsel for Respondent
31
CERTIFICATE OF SERVICE
I, John Robert Leathers, counsel of record for Respond-
ent, hereby certify that forty (40) copies of the foregoing
Brief in Opposition to Petition for Writ of Certiorari were
mailed to the Office of the Clerk of the United States
Supreme Court, Washington, D.C. 20543; that five copies
were mailed to Hon. Robert C. Ewald and Hon. Michelle
Turner, Wyatt, Tarrant & Combs, Citizens Plaza, Louis-
ville, Kentucky 40202; and that five copies were mailed to
Hon. David L. Armstrong, Office of the Attorney General,
State Capitol, Frankfort, Kentucky 40601; on this the 19th
day of December, 1986, by my personally depositing same
in a United States mailbox, first class postage prepaid. I
further certify that all parties required to be served have
been served.
Joun Rosert LEATHERS
P.O. Box 22242
Lexington, Kentucky 40522
Telephone (606) 257-1485
Counsel of Record for Respondent
Commonwealth of Kentucky
APPENDIX
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la
SUPREME COURT OF KENTUCKY
June 24, 1986
Re: Parramore Lee Sanborn v. Commonwealth of Kentucky
Honorable J. Vincent Aprile, II
and Honorable Julie Namkin
Show Cause Hearing
LDA Nec ANC e La Se TORINO 5 le GTS PaO nls LSE ELEN
Appearances :
Chief Justice Robert F. Stephens
Justice Roy N. Vance
Justice William M. Gant
Justice John D. White
Justice Charles M. Leibson
Justice Donald C. Wintersheimer
Justice James B. Stephenson
Robert E. McBeath
Court Administrator
J he nent a CRE Oe
Hon. Julie Namkin
Attorney at Law
P. O. Box 4043
Louisville, Kentucky 40204
Hon. J. Vincent Aprile, IT
Attorney at Law
Assistant Public Advocacy
State Office Building Annex
Frankfort, Kentucky 40601
Pursuant to notice duly given, the above styled matter
came on to be heard on Tuesday, June 24, 1986 at 11:00
A.M. at the Supreme Court, Courtroom, Second Floor, The
Capitol, Frankfort, Kentucky.
Chief Justice Stephens: This morning we will have a
hearing on a Show Cause Order which was entered on
August 30, 1985 in which the Counsel in the case of Parra-
more Lee Sanborn versus Commonwealth, Mr. Vincent
Aprile and Ms. Julie Namkin were ordered to appear for
contempt. The Order should be made part of the record in
this case. The procedure we will use this morning, unless
there are any valid objections, is that we will swear the two
witnesses, who are parties, and then you may proceed to
show us, if you can, indeed why you should not be punished
for contempt. So, are both of you going to testify, Mr.
Aprile, Ms. Namkin?
Mr. Aprile: I plan to.
Chief Justice Stephens: All right, raise your right
hands, please.
Mr. J. Vincent Aprile and Ms. Julie Namkin
Administered Oath
Chief Justice Stephens: All right, who’s going to go
first? All right, Mr. Aprile.
Mr. Aprile: May it please the Court. Basically, I will
not add very much to embellish what has been put forth in
4
our particular pleadings in this case. As I’m sure the
Court is aware, when we requested in this case the original
10 month extension, that was within 30 days—that was
during the—after the initial 30 days in which we received
the record. Obviously, we looked at the record. We had
not been able to go to any great detail, and based on what
was then our present case load, we estimated 10 months.
The record involved in this case, according to my calcula-
tions and my attempts to verify it, is the longest record that
has ever been before this Court in a recent death penalty
case. I may be wrong about that, but as best I can verify
3a
it, that is the situation. There are 13 volumes of record in
this case, 1981 pages, and 56 volumes of the evidence, 8261
pages, and then there are additional pages in suppression
hearings, depositions, guilty plea colloquy, things of that
sort. The size of the record is very long. Originally, I was
assigned this case when the record was beginning to be
prepared, with Richard Arvadon. At that time, I believed
that Richard Arvadon would still be in the office and be one
of the two attorneys on the case. At the time that the
record was to be prepared, it became obvious that I would
also be counsel in a case that I had tried, Brian Keith
Moore, and that
5
I would, as I had been established, continue to represent
Mr. Moore, along with Mr. Radigan in that death penalty
appeal. And, when the time came for this record to be
certified, it was very obvious that I was going to have to do
two death penalty appeal briefs at that time. Additionally,
Ms. Namkin was the attorney who was put on to replace
Richard Arvadon with me, and she, at that time, that would
have—this would have been her first death penalty appeal.
We did not have anybody else available in the office, and
this was going to be her first appeal. During the 10 month
period, other cases have come forward, including, in my
particular case, a case that was restored that another attor-
ney had tried and done the appeal. It was restored by
federal habeas order saying that this Court would reinstate
it. This Court agreed to reinstate it. I was put under a
show cause order in that particular case to finish that brief.
Basically, what it comes down to is—I—at the time that we
reached 10 months, I had not completed—I have a consider-
able portion of the record yet to read, and we are unable—
Justice Stephenson: Are you telling me that you had a
10 month extension and you haven’t read the record yet?
4a
6
Mr. Aprile: Ms. Namkin has read the entire record. I
have not read the entire record. That’s correct. At the
same time, I have to point out, I had another case that has
17—21 volumes that was briefed and done in this same time
period, as well as I said, the other case. In all fairness, at
least to me, in all fairness, my job is not simply in the office
to be an appellate attorney, but when I was asked to take
this case, I did it with full knowledge of what that would
mean, and I’m not trying to shirk that responsibility. But,
all of my job does not revolve around doing appeals. I am
not a member of the appellate branch. I’m the general
counsel for the office. I represent the office in other mat-
ters, and I have administrative duties as well, and I have
to do and perform those things. We have a limited size
staff to do these different things.
Justice Stephenson: Did you say Ms. Namkin had read
the record? |
Mr. Aprile: She has now. She did not read the record—
Justice Stephenson: You don’t contend that both of
you have to read it, do you?
Mr. Aprile:
7
Yes, I feel I have to finish reading the record, but not to
slow her up, Your Honor, while she can be working on some
of the issues. No, I’m not saying that. But, I fully intend
to read the record. That’s not my point that I would say
that only Ms. Namkin would read it. But she has finished
it, and I don’t want to put any words in her mouth, because
she will testify, as I understand it, before you, but in any
event, even had we been able to finish both of us reading the
record within the 10 months, there is no way that I could
see, looking back on this case, that we could have finished
it within this time. I guess it is before the Court because
it’s part of this case, but the Attorney General’s Office filed
oa
an opposition to our extension motion and in it you will
notice they have done a computer printout of the amount of
time cases have taken in the briefing process. I take them
at their word. I lock over this, and I see, that for example,
there are cases on here—the longest case before now, record
size, was the Hollan and James case. It took 20 months.
Our case is longer, record wise, than the Hollan and James
case, and I think, from my reading of the decision in the
Hollan and James case, contains equally comparable com-
plex issues that need to be
8
dealt with. In our particular case, our request for 10
months would put us at a total, with the initial one month
briefing time, of 21 months. This is not out of line with the
longer cases that this Court has granted extensions in. I
would not want you to think that I am in here asking that
we are entitled to 21 months because of simply the fact that
you have given that amount of time in cases of comparable
length. But I do think it supports our position in this
particular situation that this is a very long and difficult
case to manipulate, to be able to deal with all the different
parts of it as we try to hone it down and make the argu-
ments on behalf of this particular client. I don’t think our
request is out of line.
Justice Stephenson: You haven’t completed the brief
as yet or you haven’t even finished reading the record?
Mr. Aprile: That’s right. We.have identified a number
of issues that we are working on—
Justice Stephenson: You haven’t even started on the
brief?
Mr. Aprile: Yes. No. Well, the actual final product
of the brief, Your Honor, no. That’s why we asked for 10
9
months. We had requested in this case another 10 month
extension. As I—Julie and I both pointed out—Ms. Namkin
6a
and I both pointed out in the original extension motion of
10 months, it was an estimate, and we said this may be
revised upward or downward. At that point, we had only
had the physical record for 30 days when we tried to make
this estimate.
Justice Vance: Were you making an estimate of when
you were going to get started writing it, or when you were
going to have it completed?
Mr. Aprile: Your Honor, we were trying to make a
reasonable estimate at that time with regard to that case,
the size of the record, and what our present case load was.
As ’m—
Justice Vance: Estimate of what? What was your
estimate?
Mr. Aprile: Of trying to be able to finish the brief.
Yes, we were not—I don’t mean to mislead you in that
regard. When we asked for 10 months, our estimate was,
based at that point, what we knew, 10 months to complete
the brief.
Justice Gant:
10
The truth of the matter is and what you’re really say-
ing is that in the original 30 days you haven’t got time to
evaluate the record except for weighing it on the scales,
because you’ve taken 10 months and haven’t read it yet.
Mr. Aprile: Your Honor, I don’t want—I agree with
what you’ve just said.
Justice Gant: I’m not fussing at you. I’m just saying
that with 17 volumes, there’s no way in 30 days you can
be any more accurate than a guess.
Mr. Aprile: The only thing I want to say, Your Honor,
is I don’t want—it’s not fair to Ms, Namkin. You know,
she has finished the record. In all honesty, she didn’t
finish it long before the 10 months were up, but she has
7a
finished the record. So, I am the one who has not finished
the record, but—
Justice Stephenson: Where is this idea that both of
you have to read the record? If you have three lawyers,
do you mean three would have to read it?
Mr. Aprile: That’s normally our procedure, Your
Honor.
Justice Vance:
11
Why can’t ove do it?
Mr. Aprile: Well, basically, the feeling that we have—
we have a number of reasons for that. First of all, it is
normal procedure now across the country, in most states,
the death penalty appeals are done by two people and they
both read the record for the purpose that somebody does
not miss a significant issue, since we are talking about a
person’s life. Obviously, there is no requirement that I can
point to under the rules or under the constitution, but it’s
a safety check procedure. Ms. Namkin now has finished
one death penalty case that she did during this 10 month
period, the Askew case, but at least, initially, this was her
first death penalty case, and that was part of our consider-
ation. But, in every case, we try to have both attorneys
read it for the simple reason that if I don’t read the record
and she misses something, there isn’t a check on it.
Justice Stephenson: You don’t — you have —do you
have some —
Mr. Aprile: Knowledge of what the case is about, yes,
Your Honor.
Justice Stephenson:
12
—knowledge of the objections and matters that have been
presented?
8a
Mr. Aprile: Yes, Your Honor. And, I have researched
certain issues. I have researched certain issues in this ease,
but I stand—
Justice Stephenson: Why—if you have the objections,
that portion of ihe record usually is of manageable size
regardless. Why don’t you—
Mr. Aprile: We have identified 75—based on her read-
ing and other things in the case, we have identified 75 is-
sues that we are culling through, researching, cross check-
ing, to see the prejudice and that sort of thing, whether or
not they are to be raised. Obviously, we may not raise
anywhere near that number of those issues, but we have to
check each and every one of those out. That’s the way
we’ve done it in the past and we do that to protect the
defendant. I know that the Court knows in these long,
long cases that certainly we must provide some help to you
by—in the briefing process—by giving you a way to man-
age that record, and that takes a considerable period of
time. I know that this does not concern the objection that
the
13
Attorney General has raised, but I would just point out that
it is quite a different thing to do an appellee’s brief where
you look at 25 or 30 issues, even in the biggest case, you
look at those 25 or 30 issues and look at where the appellant
says those issues were preserved, where prejudice was in
the transcript, and you don’t have to read the record. It’s
a different story for us. We have to read the record. I
understand your point, Your Hynor, and it may very well
-——you’re saying why do two have to read it? But, we
definitely have to read the record. You would consider
us remiss if we did not read the record before—
Justice Stephenson: I could see where both of you
would have to read that portion where it’s preserved, but
9a
where it’s not preserved, I don’t see why two, or three or
more would have to read it.
Mr. Aprile: Well, of course, when I say preserved, I’m
not just talking about the motion and grounds for a new
trial and that. We’re talking about preserved at different
places in the record as well—
Justice Stephenson: I’m talking about that too.
Mr. Aprile:
14
—that were not identified in the motion and grounds for
a new trial, plus it’s our understanding, at least at this
point, that to a certain extent there is more latitude in a
death penalty case that it may be necessary for us to raise
in certain instances unpreserved areas.
Justice Stephenson: Well, one person can handle that,
can’t they? Why not? You’ve always got 1142 on in-
effective assistance of counsel, .
Mr. Aprile: Probably ineffective assistance of appellate
counsel, I’m afraid, but—
Justice Stephenson: Well, I don’t know why—
Mr. Aprile: But—
Justice Stephenson: Let me ask one more question.
Mr. Aprile: Certainly, Your Honor.
Justice Stephenson: We get these enormous briefs in
these death penalty cases. How much—what percentage
of these briefs would you say is comprised of material that’s
in a word processor where you just change the names and
15
punch the button?
Mr. Aprile: Well, in all honesty, in the cases that I’ve
been involved in, Your Honor, nothing.
Justice Stephenson: Well, the reason I ask that ques-
tion is, in death penalty cases, I see the same arguments,
the same authorities, and just the names are changed.
10a
Mr. Aprile: There are certainly some instances, and
I can’t speak for the other briefs—the briefs that I don’t
work on, I have nothing to do with in the sense that I am
no longer head of the appellate section—
Justice Vance: I’ve had one where the name wasn’t
even changed. It was a case, but it used a name in some
other case—
Mr. Aprile: Of another appellant?
Justice Vance: Yes.
Mr. Aprile: Well, then on behalf of the office, I defi-
nitely apologize to this court.
Justice Wintersheimer: We had another instance in
which the offense was
16
totally different.
Mr. Aprile: The offense was different?
Justice Wintersheimer: Yes.
Mr. Aprile: And, it was talked about in the brief as if
that was the offense? Well, all I can tell you—I can’t speak
for the other attorneys in the office, and I don’t mean to
deprecate them at all, it seems to me it is my responsi-
bility on the case that I am assigned to, to make sure that
I raise the issues that are relevant and pertinent in that
case. If they are things that this Court has definitely
said you will not consider, for example, certain of the
sentencing issues that you believe are not—that are not
error under the federal constitution or otherwise, it may
be necessary for me to raise that for preservation, for—
to insure that I exhaust state remedies. In that case, I’m
not saying that I wouldn’t look at another person’s brief,
but as far as access on my word processor (what’s in my
word processor that I take access to, the cases that I have
done and as a practical matter of our system, we expunge
the briefs once they are finished. So, I don’t steal from
one place to
lla
17
another, but it isn’t to state that I’m going to reinvent the
wheel. If I have done what I think is a decent exhibition
of argument from you, I will borrow from that in the in-
terest of time.
Justice Leibson: Counsel, aside from these points that
have been raised by others, I have another point I’d like
to ask you to address that disturbs me, as a matter of
good faith. You were granted—asked for and granted a
10 month extension with a proviso in it which was ob-
viously put there so you would take it seriously, that if
you didn’t do it in 10 months you were going to have to
come here and show cause why you hadn’t done it. And,
you filed this motion for an extension of time on the last
day, the 2nd of June, the very day the 10 months ran,
which certainly, as you can see, creates some issues about
how much you’ve been looking at the file or paying atten-
tion to it before, when you come in on the very day that
the time would run. And, of course, I’m sure you realize
in any other case where you wouldn’t have a problem of
inadequate representation of counsel, you would have been
refused. That would have been the end of it. There’s no
way that we would have entertained a request for an ex-
tension of time filed on the same
18
day that the time would run. So, we have a problem. We
have a duty to maintain the authority of the Court, and
in the other hand, we have the duty to respect the rights
of the defendant to be adequately represented, and we're
concerned—at least I’m concerned and I can’t speak for
my colleagues—I’m concerned that we’re losing control of
running the courtroom to the lawyers. How can you jus-
tify, if you will, please sir, waiting until the 2nd of June
and then coming in and telling us not that you need an
.
12a
extension of time and we should give it to you, but that
we have to give it to you. That’s what it amounts to really
in these kinds of cases. Either we have to or declare that
—or if we refuse to, then we obviously open the case up
to the charge of inadequate representation of counsel. So,
how can you justify this—which we've had before, which
is why we put in this show cause procedure, this practice
that you indulge in here of waiting until the 10—the last
day of the tenth month to file this motion?
Mr, Aprile: Your Honor, I think that in all fairness to
Ms. Namkin, I should take total responsibility for that.
She raised some concern about when we shdéuld file the
extension request earlier than that,
19
certainly not three or four months in advance, because we
didn’t know. We could see that there was definitely going
to be problems, but I felt that the Court had already set
up that there was going to be a show cause hearing, and
we were going to have to appear, and I felt that the closer
we got to the date, hopefully we would be better able to
estimate and say what our progress had been. That cer-
tainly wasn’t her fault. As the senior member of the two
attorneys here, that was my decision, and if that is offensive
to this Court, then it should be on my shoulders, not on
her’s, even though she signed the pleading; because I felt
that this Court would hold the show cause hearing and
expect us to come forward at that time. I did not think
that you would not hold the hearing, so I felt we would
go as close to it as we could and give you the best estimate.
As it turned out, I don’t know that it has helped all ‘hat
much in the terms of amount of time, or that anything
crystallized there, but that was my decision, and I felt that
I would have to be here before you regardless of when we
asked for it. Now, I may have been totally wrong, and to-
tally misread the Court. In that case, I apologize, but it
13a
was my understanding that we would have the hearing
when
20
I saw your order regardless of what reasons we gave,
Justice Wintersheimer: Well, Mr. Aprile, the 10 months
wasn't easy to come by, you had no acquaintance with that,
but I read the order to mean that we hoped that you would
certainly have your brief at that time, and we wouldn't
have to have this hearing.
Mr. Aprile: Oh, yes, Your Honor. Oh, please, don’t
misunderstand me. I know that. Had we had the brief in
within that time, then there wouldn't have been a hearing.
Justice Wintersheimer: Right. You've come in ocecas-
sionally, the Public Advocate generally, and most of the
time we give you perhaps six months, 90 days, something
like that. Frequently, in my view, that’s unrealistic. Give
you as much time as it appears you need and then expect
the brief to be there. There's no point in having hearings
and shuffling papers back and forth. We ought to set a
realistic deadline. The problem I have is similar to what
Justice Leibson has expressed, that early on, certainly
experienced counsel, and you are that, should have been
able to tell us, look, it’s going to be longer
21
than 10 months, and we made independent inquiry whether
that was a reasonable time, and 10 months seemed to me
to be reasonable, don’t have you come back here at the end
of six or anything like that, but have the brief here at
the end of 10. But, I think what he said reflects my view,
that somewhere along in there, you should have said, no.
we have weighed this on a scale, or we’ve looked at the
number of pages, and that’s not realistic, and here’s why.
And, that’s what bothers me about this situation.
Mr. Aprile: And, I understand what the Court:is say-
ing, and I ean see the defect in the way that I approached
l4a
it. And I guess part—in all candor—I guess part of this
perhaps come about, and maybe this isn’t true for all the
attorneys in the office because I can’t speak for them, but
part of it comes about from perhaps somewhat of a fear—
maybe it’s not a justified fear, maybe it’s a paranoia—but,
you know, this is not the only case, even for me, this is
not the only case that I am doing. I have—when you re-
quest an extension, you run the risk in most instances that
the counsel for the Attorney General in every case will
come back and say this is unreasonable, why isn’t it in,
why isn’t it done.
22
You have to either respond to those or deal with those,
and nobody considers that you may be under two or three
show cause orders, or under a final in another court, be-
cause I understand, you’re processing each of the cases
individually and that’s the way it should be.
Justice Stephenson: You know that—if yow’re under
other show cause orders you know that when you're going
to make an estimate of your time.
Mr. Aprile: But, Your Honor, when I made the esti-
mate—for myself, not speaking for Ms. Namkin—but when
I made, part of my estimate, as I said, in the motion was
based on my case load, and after the motion was filed, the
Johnson case was reinstated by this Court, as it should
have been—I’m not complaining about that—I’m just say-
ing how things you don’t have any idea take place. The
Johnson case came in. The Brian Keith Moore record
was certified shortly after this, and I made the request in
that case with Mr. Radigan. Then, another case was re-
instated that had to be done, and in these situations, you’ve
got to try to work to a certain extent on various ones of
them, and you can’t find time—at least I haven’t been able
to—to do all of
them.
Justice Stephenson: Well now, you say that this death
penalty case is so important that it requires two people to
read the record, now if it’s that important, it looks to me
as though it’s important enough to devote all of your time
to it, and not the administrative duties. If you’re going
to undertake this, and if it is that important, then well,
you’ve got 10 months here, with a 10,000 page record, that’s
a thousand pages a month. I just don’t see how even a
ten thousand page record, transcript, is not—you can go
through that in pretty short order. Any experienced law-
yer can start looking at the pages and tell whether there’s
anything on there of any significance or not.
Mr. Aprile: I would say this, Your Honor, in response
to what you said. I have assigned job responsibilities in
the office. They include more tian doing appellate work.
I am not trying to say that that justifies any special treat-
ment of me, but I think it counts the same as the other
appellate work that the appellate attorneys are doing, when
we have a severe shortage of attorneys in many respects.
I was required to consider whether or not to take
24
this case, initially, and then again when Richard Arvadon
left. The decision was made in conjunction with my super-
visor and the need for an attorney to do this case. Sim-
ilarly, when I had to take the death penalty case in Hop-
kinsville that’s going on right now at the trial level, the
decision was not part of my normal duties, but because we
had a shortage and we couldn’t find anybody to fill in, and
the Christian County Circuit Judge is asking, we need to
have somebody replace this person who has left your office.
And, they came to me and asked me, and there’s nobody
else to do it, so what do you do?
16a
Justice Stephenson: Members of your office now handle
these cases at the trial level, is that correct?
Mr. Aprile: Sometimes. This case was not done that—
this was done by other people in the local office in Oldham
County, and a private attorney—but, yes, Your Honor,
there are a number of cases where we try them as well, yes,
sir.
Justice Stephenson: We see those, and it seems to take
the same amount of time.
Justice Vance:
25
It seems to me, from your argument here now, that if your
office just lets itself get completely short of attorneys, then
we would never be able to have an appeal in a ease. If the
justification is the shortage of help, then you’re going to
have to come down from three attorneys on a case to one on
a case, because it just doesn’t make any sense at all to say
that we just are forever stymied, and that appeals must
languish forever because you don’t have enough people to
have three or four people read the record in every case.
Mr. Aprile: Well, in all fairness—I understand the
argument, Your Honor, and the point that you’re making—
but, in all fairness, it seems to me that the truth of the
matter is that the briefs do get filed. They may take
longer in some cases than in others. Most of the time it is
a direct component of the length of the record, but it also
can be a direct component of how many cases that particu-
lar attorney has to deal with, and that is part of our short-
age situation. But, as a practical matter—I can’t speak for
the Court obviously—, but it would seem to me that you
know that even though—and I appreciate the mistakes and
the problems that you have pointed out in our death penalty
briefs—but I
17a
26
think it would only be fair to say that the final product
that you get in, in these cases, you have some appreciation
for the amount of work that has gone into them,—
Justice Leibson: What we appreciate, in all honesty—
this is a digression, but since you are counsel to your office
—what we appreciate is we get four or five hundred pages
of briefing, most of which isn’t even remotely arguable,
much of which isn’t, instead of focusing in on the major
points. Whereas, I would think that if you feel compelled
to raise points that some judgment should be used as to
what are major points and what are minor points. An error
can be preserved for federal courts by just raising and
passing on past the minor points that have been raised in
numerous other cases, and, quite frankly, as far as I’m
concerned, a five hundred page brief does your client a
disservice. I see no way that I can possibly focus on the
major points when I have to make the judgment about
which are really the major points that need to be reviewed,
instead of you. It seems to me that we have a collateral
problem here of unlimited briefing for the same cause.
Apparently, we are at the mercy of the lawyer, because
otherwise we can have a collateral
27
attack, we’re building in a collateral attack about inade-
quate representation. But, the truth of the matter is, your
client is suffering. Your client is being inadequately repre-
sented by these extremely lengthy briefs treating 75 issues
as equally important. And, I raise this—it’s not relevant to
the inquiry we’re having here, but it seems because of your
position—because of the general subject of discussion, that
it is something I wanted to get off my chest, and I do so
with apologies to you and to my brethren whose time I
have taken.
18a
Mr. Aprile: I appreciate your comments, Your Honor,
and I certainly understand what you’re saying. It’s very
difficult, obviously, for me in this context, to respond either
to some of the things that you have said. There always will
be, I suspect, differences between the Bench and the Bar
over how we protect our clients. And, certainly I am not
trying to say that I have a monopoly on being right on this
or anything like that. All I know is, I try to do the best
that I can under the circumstances for each individual
client, and I would say this, that I am well aware that the
delays in a death penalty case are equally hard on the
client. It’s very
28
difficult when you have to tell your—when I have to talk to
the client and say, I’ve had to ask for more time in this
particular situation, and try to explain why I’m doing it.
Justice Leibson: Maybe that’s what we ought to re-
quire, that the appellant—that every time you ask for a
delay that your client has to personally sign on the request
so that they do know where the delays are coming from.
Mr. Aprile: They do know—Your Honor, I do—I un-
derstand what you’re saying, but I want to make it very
clear that we send them copies, talk to them before we file
motions for extensions, and discuss it with them and ex-
plain it. Whether or not you want that requirement on a
motion is one thing, but it’s not like they think that this is
something that the Court ordered. They know that we
have requested it. We explain that.
Justice Leibson: Well, I’m glad to hear that.
Mr. Aprile: And, they are not always happy. I don’t
mean to mislead you, and that is a real problem. In all
honesty, as I stand before you in this case, I also
29
want to say this to you. When I was trying to talk a
moment ago, perhaps the fear, or you may want to say that
19a
it’s paranoia because you know yourselves better than I do,
right? And, maybe it’s an unjustified fear. But, I’m not
sure—and I asked around and everything when I tried to
put together what I would ask in Parramore Sanborn,
knowing the size of it and that, and I made a good faith
estimate at 10 months in one way, but in a sense, I wasn’t
very sure that you would consider anything longer than
that at the time. I felt it was bounded by what I thought
we could do under the circumstances, and also that prob-
ably, you know, I’ve been doing this for 13 years—rightly
or wrongly, I’ve been before this Court for 13 years now,
and there was a time when the practice was totally differ-
ent. You were not allowed—simply not allowed to ask for
more than 30 days at a time. And, I’m not saying that I
understand that to be the practice now, but I didn’t know
at what level of increments this Court would say, no, we
just take it 10 months, nine months, seven months, at a
time. I wasn’t sure. So, I was balancing and dealing with
Ms. Namkin and talking about it. I was also talking about
what increments the Court would want to review this case
in, and to review
30
our progression. And, I wasn’t sure that you would come
back to us and say, when you granted the original order,
grant it for seven months and come see us in seven months.
Justice Stephenson: Ten months is more than adequate
for any case ever conceived by the imagination of man, if
you get to it and get it finished.
Mr. Aprile: Your Honor, if that was the only case—
Justice Stephenson: I know that. But, that’s the prob-
lem—that’s why—
Mr. Aprile: But, it’s a reality, isn’t it?
Justice Stephenson: Beg your pardon?
Mr. Aprile: I mean, it’s a reality, isn’t it? I under-
stand your rules say, or at least the warnings that are on
20a
the documents say to us, the only thing that matters in
these extension motions are the circumstances of the case.
Now, I’ve come in here with one of the longest records that’s
ever been put before you, but as a reality, I know this, that
it’s also what do we have to do. If I could hang up on all
the other clients that call me, if I
31
could not respond—
Justice Stephenson: Here’s the problem now. Ms.
Namkin has finished it. You haven’t. You say you both
have to do it. Now, I think we’re getting into a situation
where we just can’t—I don’t think we can tolerate that.
Where do we end up? You say the briefs are eventually in,
and I agree. But, when? We get into a period of time
that’s unconscionable.
Mr. Aprile: Some of the briefs, Your Honor, are in
very quickly for a death penalty case. And, some of them
are in at this amount of time or longer. I had hoped that
in this particular case, that, you know, it could be an
individual determination, looking at the circumstances of
this case. But I also know, as a practical matter, I—
Justice Stephenson: Well, aren’t you all going to have
to change your procedure here, just let one lawyer read the
briefs—read the transcript, I mean? If these—
Justice Vance: If you can’t meet deadlines.
Justice Stephenson: If these delays are stretching out
longer and longer and longer, somewhere there has to be
an end
32
to it.
Mr. Aprile: Well, perhaps I’m the only one to blame
in this. I mean in this particular situation. I don’t know
what happens in other cases. I don’t know if the parallel
is that both people have read the record at the same time or
2la
not, and so I’m not coming in here trying to talk about
anybody else’s case or any other situation. That may not
be a problem in any of the other extension requests. But,
Ms. Namkin has read the record in this case, totally, and I
haven’t. So, that is a problem in this case.
Justice Wintersheimer: Let me interrupt you for a
minute. Is this an office policy, that both of you read the
record?
Mr. Aprile: It’s an office policy that two people be on
death penalty cases, and we take that to mean that they are
equal counsel. They are equal counsel. They are respon-
sible—
Justice Vanee: And, both of them have to read the
record before one of them starts writing anything.
Mr. Aprile: No, sir. No, sir. No, sir, that’s not true.
In fact, I have started putting some things together
33
in this ease on issues that I know about in there, when I
haven’t even finished the whole record, and in a way, that
can be a help sometimes, because as I put law aside on that
particular issue as I am reading, I can be building on a
particular argument. There’s no doubt about that. And,
I have not said to Ms. Namkin, you can’t go forward until
I have read the record. That’s not what we’re saying at all.
Justice Stephenson: Do you both write a brief?
Mr. Aprile: Do we both write the brief? Yes, Your
Honor.
Justice Stephenson: Well, do you collaborate on it, or
do each one of you write a separate brief?
Mr. Aprile: Different—in my experience, it’s been done
different on certain issues. We may take issues that she’s
dealt with before, and she might write it by herself. We’ve
discussed this. We’ve never done one jointly. We might
write—Mr. McNally and I have, in the past, written issues
22a
together, and then merged them, and put them together,
and one of us has responsibility that way. It varies from
situation, and case to case. But, no, we’re not
34
saying that we have to write each issue together, or that I
would write every issue and she would look over my
shoulder, or vice versa.
Justice Stephenson: How would it expedite these mat-
ters if just one lawyer read the record, and one lawyer
wrote the brief?
Mr. Aprile: Well, in all honesty, Your Honor, I think
that would cause a real problem in our office. And, the
reason it would cause a problem in our office is,—I don’t
know if you appreciate this from our point of view or not—
we jon’t relish the responsibility. I am here before you 13
years as being a public defender. I didn’t like it when the
death penalty came down, because it increases, I think,
severely on my shoulders, personal responsibility. I am not
responsible for the sentence that the man received, but I
may be responsible for the type of appeal that he has. I
don’t think that we could keep very many lawyers very
long if they were told, one attorney—this Court said—one
attorney reads the—
Justice Stephenson: We’re not going to say—I don’t
think this Court is going to say that. I’m just saying that
it’s pretty difficult for me to accept the excuse that
35
two of you have to do it with these long, interminable
delays.
Mr. Aprile: Well, again, I am taking the responsibility
for this particular delay.
Justice Stephenson: I know lots of lawyers, that if you
try a criminal case, one lawy r tries it, death penalty or
otherwise. I don’t see—
tail
Tee Te ee ee eee
23a
Mr. Aprile: I didn’t mean—TI certainly didn’t mean to
offend the Court a minute ago when I said about if this
Court ordered it. I think the same reaction would occur if
as a policy in our office it was said, one attorney reads the
record in a death penalty case.
Justice Vance: Let me ask you this. There was an
order here that the brief would be finished on a certain date,
and if it wasn’t there would be a show cause why there
should not be some sanctions imposed. Not only was the
brief not finished, but you haven’t even read the record to
get started on the brief—
Mr. Aprile: Haven’t read all of the record, that’s right.
Justice Vance: Now, do you consider that a fairly
cavalier
36
treatment of this Court’s order that when you’re ordered to
finish something in 10 months and at the end of 10 months
you haven’t even read the record?
Mr. Aprile: I feel this way, Your Honor—
Justice Vance: Did you just think that there would be
nothing done about it?
Mr. Aprile: No, no, Your Honor. I didn’t feel—I
didn’t feel, for example, when you put me under the show
cause order, knowing that I was under the other one, when
you put me under the show cause order in Johnson, that I
was being cavalier in having to elect between which of
those two I did. I finished one show cause order. Ms.
Namkin was under two. One in Askew, and one in this.
She finished another. It seems very difficult, you know,
for me to look here and say, that what the Court is saying
is we put you under a show cause order, devote all your
time to that case, and turn around and you say, you’re under
a show cause order here, and you have—end another court
is saying you have to be in my court or you’ll be held in
contempt of court. Down there in Hopkinsville, you’ve got
24a
to provide this representation. I mean, really and truth-
fully,
37
it’s like a rubberband being stretched in all different places,
If it appears cavalier to you, Your Honor, I would apolo-
gize for that, but I would have to say, it’s balancing a lot
of requirements of courts. And, I know that you are the
Supreme Court, and what you say is the most significant.
But, even in that situation, you have put both of us, dur-
ing this same 10 month period, under show cause orders
and asked us to comply, and we have tried. And, it seemed
easier to comply, in my case, with Johnson, than it did
with this particular case, And, I’m sure the Askew record
is much shorter than this particular record. And, I’m
under oath here, and I’m saying to you that you're right
factually. I have come in here, unlike Ms. Namkin, and
I have not read all of this record, and I am considerably
behind in that regard. But, I have done other things in the
case that I hope will expedite finishing it. The other thing
I say to you is, in asking for 10 months, just as we asked
for 10 the first time not knowing exactly what would hap-
pen, not being able to predict, that hopefully, we'll finish
it before 10 months. I can’t say that that actually would
happen. That that actually can happen, in view of the
other particular things we have to do with regard to
38
the other cases. We—well—perhaps I have spoken too
long, Your Honor,
Chief Justice Stephens: Are there any more questions?
All right, Mr. Aprile.
Mr. Aprile: Thank you, Your Honors.
Ms, Namkin: May it please the Court. Aside from
the pleading that I have filed in this case explaining every-
thing that I’ve done since I was assigned to this case, I’m
25a
really not sure what else I can add. I'll be glad to answer
any questions from this Court. I believe that I have con-
scientiously and diligently been working in this case, along
with every other case that I have in the office. Just one
point I would like to say. The fact of only having one
person read the record, from my personal opinion, if that
means anything, I just don’t think that that is manageable
at all. I mean, I just can’t see—perhaps on a shorter case
where there’s not that many issues, where things are not
as complex, where it’s not a death penalty case, maybe you
could have one person read the record and pick out every
issue and tell the other attorney on the case, well, I’ve lifted
x-number of issues, you do
39
a, b, and c, and I'll do d, e, and f.
Justice Stephenson: Why not one lawyer do the whole
thing? I can’t—I mean, I can’t—do you think you’re com-
petent to read a record, recognize the issues, and write a
brief about them?
Ms. Namkin: Yes, I do, Your Honor.
Justice Stephenson: Then why can’t you do it by your-
self?
Ms. Namkin: Well, I could do it by myself, but I cer-
tainly couldn’t do it in 10 months with all the other case
load that I have.
Justice Stephenson: Well, I know, but the point I’m
making is, if you could do it by yourself, then you wouldn’t
have two lawyers occupied with it, and it would maybe
decrease your case load a little bit.
Ms. Namkin: Well, whether I could do it by myself,
and whether it would be a wise decision for me to do it
by myself are two different questions, and I’m not sure that
I think it’s a wise decision for one person to take on this
type of responsibility by himself or herself,
26a
40
Justice Leibson: Can | ask « question I’m not clear on?
Has any portion of the brief yet been committed te writing
in a form that could—even as a first draft—in a form that
could be read?
Ms. Namkin: No, it hasn’t, Your Honor.
Chief Justice Stephens: Anything else? Any other
questions from the Court? We have another -we’re run-
ning a little late. Why don’t we take a five or six minute
break.
RECESS
_
State or Kentucky S
County or FranKiin } —
I, Juanita M. Toole, a Notary Public in and for the state
and county aforesaid, do hereby certify that the foregoing
testimony was transcribed under my direction; that the
witnesses were duly sworn before giving their testimony;
that the foregoing pages of typewritten matter constitute
a true and correct copy of all testimony transcribed under
my supervision.
I certify that the appearances are as listed on the first
page of this transcript.
Witness my hand and notarial seal this 12th day of
December, 1986.
(s) Juanita M. Toole
Notary Public
State of Kentucky at Large
My commission expires: February 17, 1990
27a
SUPREME COURT OF KENTUCKY
File No. 84-SC-566-I
ParraMore LEE SANBORN - - - . Appellant
v.
COMMONWEALTH OF KENTUCKY - - - Appellee
MOTION FOR EXTENSION OF TIME TO PERFECT
APPEAL AND FILE BRIEF FOR APPELLANT—
Filed June 2, 1986
Comes now appellant, Parramore Lee Sanborn, by coun-
sel, pursuant to CR 6.02 and CR 76.40(1), and respectfully
requests an extension of ten (10) months, from August 2,
1985 to and including Monday, June 2, 1986, in which to
perfect this appeal and file the brief for appellant in the
above-captioned case. The reasons for the requested ac-
tion are delineated below.
1. Appellant was convicted of one count of murder
(KRS 507.020), one count of kidnapping (KRS 509.040),
one count of first degree rape (KRS 510.040), and one count
of first degree sodomy (KRS 510.070). For the murder
offense, appellant was sentenced to death.
2. The initial judgments in appellant’s case were en-
tered in the Henry Cireuit Court on March 11, 1984. The
initial final judgments entered on March 11, 1984 sentenced
appellant to three (3) separate life sentences for the of-
fenses of kidnapping, first degree rape, and first degree
sodomy (Transcript of Record, Volume 12, hereinafter des-
ignated T.R. (12), pp. 1822-1823, 1825-1826, 1828-1829). A
timely notice of appeal was filed on March 16, 1984 (T.R.
(12), pp. 1880-1881).
28a
3. <A second judgment in appellant’s case was entered
in the Henry Cireuit Court on March 16, 1984. The second
judgment sentenced appellant to death for the offense of
murder (T.R. (12), pp. 1868-1872). A timely notice of ap-
peal from that judgment was filed on March 20, 1984 (T.R.
(12), pp. 1884-1885).
4. A final order in appellant’s case was entered in the
Henry Cireuit Court on June 20, 1984 overruling appel-
lant’s motion for a new trial and motion for a judgment
notwithstanding the verdict (‘T.R. (12), pp. 1938-1939). A
timely notice of appeal from that order was filed on June
27, 1984 (T.R. (12), pp. 1940-1941).
5. Copies of the judgments, order and notices of ap-
peal are attached.
6. Pursuant to KRS 532.075(1), appellant’s sentence
of death is subject to mandatory review by the Court.
7. On May 30, 1985, the record on appeal was com-
pleted and certified.
8. Pursuant to an order of this Court, entered July 3,
1985, the brief for appellant is due to be filed on or before
August 2, 1985.
9. The transcript of record consists of thirteen (13)
volumes and 1,981 pages. The transcript af evidence con-
sists of fifty-six (56) volumes with exhibits attached to
twonty (20) volumes and 8,261 pages. In addition, there
is a transcript of evidence of the grand jury proceedings
consisting of ninety-seven (97) pages; one deposition for
defendant consisting of fifty-nine (59) pages; one transcript
of suppression hearing, in part, consisting of 126 pages;
one transcript of a guilty plea colloquy consisting of seven-
teen pages; and one transcript of hearing consisting of
sixty-two (62) pages, for a total of 361 pages.
10. The undersigned counsel have examined the record
during the initial thirty-day briefing period and, based on
their present caseloads and past experience with appeals
29a
of comparable nature and size, estimate that an additional
ten (10) months will be needed to read the appellate record,
to research the issues, to draft the brief for appellant, and
to have it typed and reproduced. Of course, it is possible
that, after additional work on this appeal, this estimate
may be revised either upward or downward. Because this
is a capital case in which the death sentence was imposed,
the undersigned counsel believe this initial extension re-
quest of ten (10) months is both reasonable and necessary
under the circumstances. |
11. During the last thirty days, undersigned counsel
Julie Namkin has filed two briefs and one reply brief in
the Kentucky Court of Appeals, and has filed one petition
for modification or extension and has tendered one motion
for discretionary review in this Court. In addition, counsel
has had one oral argument in the Kentucky Court of
Appeals.
12. Undersigned counsel J. Vincent Aprile, II, during
the last thirty days, has filed a petition for rehearing and
other pleadings in the Kentucky Court of Appeals as well
as pleadings in both this Court and the United States Court
of Appeals for the Sixth Circuit. As General Counsel for
the Department of Public Advocacy, unde. signed counsel
Aprile is required to spend a considerable amount of his
work time on unanticipated requests for legal and ethical
opinions generated by both local trial level public advocates
as well as members of the central staff of the Department
of Public Advocacy. Additionally, undersigned counsel
Aprile in his role as General Counsel to the Department
of Public Advocacy has sole responsibility for represent-
ing the Department in litigation.
13. As employees of the Department of Public Advo-
cacy, the undersigned counsel’s control over case assign-
ments and other assignments is minimal.
30a
14. As Assistant Public Advocates in the Department
of Public Advocacy, the undersigned counsel are compelled
to commit a considerable quantity of time to numerous
other clients, whose cases are also being procedurally and
substantively processed within deadlines, and who are
equally entitled to effective and timely representation.
15. This motion for an extension of ten (10) months
is made in good faith and not for reasons of delay. The
requested extension is sought only to insure that appellant
will be afforded effective assistance of counsel on appeal.
16. It should be noted that appellant is presently in-
earcerated at Eddyville and is not free on bond pending
appeal.
Wuererore this Court should grant this motion and
order, pursuant to CR 6.02 and CR 76.40(1), that the ap-
pellant be granted an extension of ten (10) months to and
including Monday, June 2, 1986, in which to perfect the
appeal and file the brief for appellant in the above-cap-
tioned case.
Respectfully submitted,
(s) J. Vineent Aprile I
J. Vincent Aprile, II
Assistant Public Advocate
Department of Public Advocacy
151 Elkhorn Court
Frankfort, Kentucky 40601
(s) J. Vineent Aprile II
for Julie Namkin
Assistant Public Advocate
Department of Public Advocacy
151 Elkhorn Court
Frankfort, Kentucky 40601
Counsel for Appellant
———
3la
NOTICE
Please take notice that the foregoing motion will be filed
in the Office of the Clerk of the Supreme Court of Kentucky
on the 2nd day of August, 1985.
(s) J. Vincent Aprile, I
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion has
been hand delivered to Hon. David L. Armstrong, Attorney
General, Commonwealth of Kentucky, Capitol Building,
Frankfort, Kentucky 40601, this 2nd day of August, 1985.
(s) J. Vincent Aprile, II
32a
SUPREME COURT OF KENTUCKY
84-SC-566-I
ParraMorE LEE SANBORN ak ent. - Appellant
v.
ComMONWDPALTH oF KENTUCKY - - - Appellee
On Appeal From Henry Circuit Court
Honorable Dennis A. Fritz, Judge
83-C R-057
ORDER
Appellant’s motion for an extension of time, to and
including June 2, 1986, in which to file his brief and to
perfect the appeal in the above-styled action is granted.
If appellant’s brief is not filed and his appeal is not per-
fected on or before June 2, 1986, appellant’s counsel, Hon-
orable J. Vincent Aprile, II, and Honorable Julie Namkin,
shall appear before this court on June 24, 1986, at 11:00
a.m., in order to show cause why they should not be held in
contempt of this court or sanctioned for failure to timely
complete the brief.
Stephens, C.J., and Gant, Stephenson, Vance and Win-
tersheimer, JJ., sitting. All concur.
E\nTerED August 30, 1985.
(s) Robert F. Stephens
Chief Justice
were Nee eel
33a
SUPREME COURT OF KENTUCKY
File No. 84-SC-566-I
ParrRaMoORE LEE SANBORN - - - = Appellant
v.
CoMMONWEALTH OF KENTUCKY - - - Appellee
MOTION FOR EXTENSION OF TIME TO PERFECT
APPEAL AND FILE BRIEF FOR APPELLANT—
Filed August 2, 1985
Comes now appellant, Parramore Lee Sanborn, by
counsel, pursuant to CR 6.02 and CR 76.40(1), and respect-
fully requests an extension of ten (10) months, from Mon-
day, June 2, 1986, to and including Thursday, April 2, 1987,
in which to perfect this appeal and file the brief for appel-
lant in the above-captioned case. The reasons for the
requested action are delineated below.
1. Appellant was convicted of one count of murder
(KRS 507.020), one count of kidnapping (KRS 509.040),
one count of first degree rape (K RS 510.040), and one count
of first degree sodomy (KRS 510.070). For the murder
offense, appellant was sentenced to death.
2. Pursuant to an order of this Court, entered July 3,
1985, the brief for appellant was due to be filed on or before
August 2, 1985.
3. On August 2, 1985, the undersigned counsel moved
this Court for an initial extension of ten months from
August 2, 1985 to and including June 2, 1986, in which to
perfect this appeal and file the brief for appellant in the
above-captioned case. Based on their examination of the
record during the initial thirty-day briefing period, the
34a
undersigned counsel “estimate[d] an additional ten months
[would] be needed to read the appellate record, to research
the issues, to draft the brief for appellant, and to have it
typed and reproduced” (Extension Motion, p. 3; emphasis
added). The undersigned counsel qualified that estimate
in their extension motion. “Of course, it is possible that,
after additional work on this appeal, this estimate may be
revised either upward or downward” (Extension Motion,
p. 3).
4. On August 30, 1985, this Court entered an order
granting appellant’s motion for an extension of time, to
and including June 2, 1986, in which to file his brief and to
perfect the appeal (Order, 8-30-85). The order added that
“lijf appellant’s brief is not filed and his appeal is not
perfected on or before June 2, 1986, appellant’s counsel,
Honorable J. Vincent Aprile II, and Honorable Julie
Namkin, shall appear before this court on June 24, 1986,
at 11:00 a.m., in order to show cause why they should not
be held in contempt of court or sanctioned for failure to
timely complete the brief” (Order, 8-30-85).
9. The transcript of record consists of thirteen (13)
volumes and 1,981 pages. The transcript of evidence con-
sists of fifty-six (56) volumes with exhibits attached to
twenty (20) volumes and 8,261 pages. In addition, there is
a transcript of evidence of the grand jury proceedings
consisting of ninety-seven (97) pages; one deposition for
defendant consisting of fifty-nine (59) pages; one transcript
of suppression hearing, in part, consisting of 126 pages ;
one transcript of a guilty plea colloquy consisting of seven-
teen (17) pages; and one transcript of hearing consisting
of sixty-two (62) pages, for a total of 361 pages. The total
page count for the appellate record in the case at bar is
10,603 pages.
6. The request by the undersigned counsel for an ex-
tension of another ten (10) months is primarily based upon
35a
the unusual length of the appellate record and the number
of issues presented. The record has been read and counsel
have identified in excess of seventy-five (75) preserved
errors. Additionally, appellate counsel in death penalty
cases have an obligation to raise in an appellant’s brief
unpreserved arguably meritorious issues.
7. According to the information available to the un-
dersigned counsel, the appellate record in the case at bar is
the lengthiest record on appeal in a death penalty case ever
handled by the Department of Public Advocacy and prob-
ably the lengthiest death penalty case ever reviewed by this
Court.
8. Due to the unusual length of the appellate record at
bar, the large number of preserved errors to be evaluated,
and the imposition of the sentence of death, the undersigned
counsel believe this additional extension request of ten (10)
months is both reasonable and necessary. The United
States Supreme Court has acknowledged that “delays ...
in the course of appellate proceedings” may be justified by
“the need to assure careful review of an unusually complex
case.” Harrison v. United States, 392 U.S. 219, 88 S. Ct.
2008, 2009 n. 4, 20 L. Ed. 1047 (1968).
9. Even if the undersigned counsel had been able to
devote all of their time during the last ten months to the
completion of appellant’s brief, it would have been ex-
tremely difficult, if possible at all, to complete the brief
within the granted extension period. But as the under-
Signo’ counsel informed this Court in their initial extension
motion, as Assistant Public Advocates they both are re-
quired to represent other clients in the criminal justice
system.
10. For example, in addition to undersigned counsel
Namkin’s regular appellate caseload, she was assigned
another death penalty appeal (Robert Lee Askew) subse-
quent to filing the original extension motion in the above-
36a
captioned case. Counsel Namkin will be filing the appellate
brief in Askew v. Commonwealth, No. 85-SC-251-I on June
15, 1986. On May 14, 1986, this Court placed undersigned
counsel Namkin and her appellate co-counsel under a show
cause order in the event Askew’s brief for appellant was
not filed by June 15, 1986.
11. On September 3, 1985, approximately one month
after the undersigned counsel filed appellant’s initial ex-
tension motion, the record on appeal in Charles Edward
Johnson v. Commonwealth, No. SC-292-MR, was received
by the Clerk of this Court. Undersigned counsel Aprile on
January 30, 1986 was placed under a show cause order if
he failed to file the brief for the appellant in that case by
March 2, 1986. Undersigned counsel complied with that
order and filed the brief in Johnson on March 3, 1986.
12. Additionally, in early April of this year under-
signed counsel Aprile was required to substitute as trial
counsel in a death penalty case which is pending trial in
Christian Cireuit Court. Substitution of counsel was neces:
sitated by the resignation of the defendant’s initial counsel
from his position with the Department of Public Advocacy
to join the staff of a Kentucky state prosecutor’s office.
Undersigned counsel Aprile’s involvement in that case has
absorbed a large portion of his time in the last two months.
Of course, that assignment was not known to undersigned
counsel Aprile in August, 1985.
13. As employees of the Department of Public Advo-
cacy, the undersigned counsel’s control over case assign-
ments and other assignments is minimal.
14. As Assistant Public Advocates in the Department
of Public Advocacy, the undersigned counsel are compelled
to commit a considered quantity of time to numerous other
clients, whose cases are also being procedurally and sub-
stantively processed within deadlines, and who are equally
entitled to effective and timely representation,
37a
15. This motion for an extension of ten (10) months is
made in good faith and not for reasons of delay. The re-
quested extension is sought only to insure that appellant
will be afforded effective assistance of counsel on appeal.
16. It should be noted that appellant is presently in-
earcerated at Eddyville and is not free on bond pending
appeal.
WuereroreE this Court should grant this motion and
order, pursuant to CR 6.02 and CR 76.40(1), that the ap-
pellant be granted an extension of ten (10) months to and
including Thursday, April 2, 1987, in which to perfect the
appeal and file the brief for appellant in the above-cap-
tioned case.
Respectfully submitted,
(s) J. Vincent Aprile, IT
J. Vineent Aprile, IT
Assistant Public Advocate
Department of Public Advocacy
151 Elkhorn Court
Frankfort, Kentucky 40601
(s) Julie Namkin
Julie Namkin
Department of Public Advocacy
151 Elkhorn Court
Frankfort, Kentucky 40601
38a
NOTICE
Please take notice that the foregoing motion will be
filed in the Office of the Clerk of the Supreme Court of
Kentucky on the 2nd day of June, 1986.
(s) J. Vincent Aprile, II
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion has
been hand delivered to Hon. David L. Armstrong, Attorney
General, Commonwealth of Kentucky, Capitol Building,
Frankfort, Kentucky 40601, this 2nd day of June, 1986.
(s) J. Vineent Aprile, II
39a
TO BE PUBLISHED
SUPREME COURT OF KENTUCKY
84-SC-566-I
ParraMorE Lee SanBorNn - - - - Appellant
v.
CoMMONWEALTH OF KENTUCKY - - - Appellee
Appeal from Henry Circuit Court
No. 83-CR-057
Honorable Dennis A. Fritz, Judge
OPINION AND ORDER
On August 30, 1985, this Court entered an order in the
above-styled action granting appellant’s motion for an ex-
tension of time to June 2, 1986, in which to file his brief
and perfect the appeal.
In the same Order we further provided:
“If appellant’s brief is not filed and his appeal is
not perfected on or before June 2, 1986, appellant’s
counsel, Honorable J. Vincent Aprile, II, and Honor-
able Julie Namkin, shall appear before this Court on
June 24, 1986, at 11:00 a.m., in order to show cause
why they should not be held in contempt of this Court
or sanctioned, for failure to timely complete the brief.”
Appellant’s counsel, J. Vincent Aprile, II and Julie
Namkin, failed to comply with this Order and a hearing
was held on June 24, 1986, at which time Mr. Aprile and
Ms. Namkin appeared and offered explanation.
40a
We find the following facts to he true:
The transcript of evidence was filed on June 27, 1985.
Thereafter, on the day the brief was due appellant failed
to file his brief but instead filed a motion for a ten (10)
month extension. The reasons for the requested lengthy
extension included a recitation of the length of the record
on appeal and counsels’ present caseloads, along with coun-
sel’s estimate, after reviewing the record and based on their
present caseloads and past experience with appeals of
comparable nature and size, that an additional ten (10)
months would be needed to prepare appellant’s brief. In
paragraph ten of the motion for extension counsel stated
that “(b)ecause this is a capital ease in which the death
sentence was imposed, the undersigned counsel believe this
initial extension of ten (10) months is both reasonable and
necessary under the circumstances.” On August 30, 1985,
this Court considered and granted appellant's requested
motion for extension of time and entered the aforemen-
tioned order.
Ten months later, on the date the brief was due, ap-
pellant failed to file his brief but instead filed a motion
requesting another ten (10) month extension of time.
Counsel failed to comply with this Court’s order of August
30, 1985, to timely file appellant’s brief and instead filed
a second motion for extension of time which parroted in
large part the language of the previous motion for exten-
sion of time and listed “the unusual length of the record,
the large number of preserved errors to be evaluated and
the imposition of the sentence of death” as reasons justi-
fying counsel’s request for an additional extension of time.
Counsel Namkin filed an ex parte motion to be relieved
from appearing at the June 24, 1986 show cause hearing
in which she detailed her current caseload. The Court
denied the motion on June 23, 1986.
4la
At the oral hearing conducted June 24, 1986, Mr. Aprile
advised this Court that he had not completed reading the
record in this ease, nor begun writing the brief and that
the initial request for an extension of time was merely an
estimate of the time needed to complete the brief. Ms.
Namkin advised the Court that, unlike Counsel Aprile, she
had read the record but that she too had not begun writing
appellant’s brief. After ten-months’ extension of time and
in spite of a pending show cause order, neither attorney
had begun writing appellant’s brief, and one had completed
reading the record.
Among this Court’s responsibilities is the duty to pro-
tect the authority of the judiciary and to respect the rights
of defendants charged with committing crimes. This Court
may not dismiss an appeal for counsel’s failure to timely
file a statement of appeal and brief. However, this Court
cannot tolerate interminable delays occasioned by counsel
deciding when it is timely and appropriate for a brief to
be filed, rather than following the dictates of this Court.
Mr. Aprile and Ms. Namkin gave no adequate repsonse
to the Order of this Court to show cause. After eleven
months neither counsel has committed any portion of the
appellant’s brief to writing and Mr. Aprile has failed to
read the record in its entirety. Although counsel were
fully aware that they would be unable to comply with this
Court’s order of August 30, 1985 and timely file appellant’s
brief, they waited until the last day of the tenth-month ex-
tension period to request another extension. Mr. Aprile
advised the Court that Ms. Namkin had proposed filing
the motion for extension at an earlier date, but that as
senior counsel he elected to file the motion on the date the
brief was due to be filed. Counsel were granted a realistic
deadline for filing appellant’s brief and could not justify
the practice prevalent in criminal cases of routinely seek-
ing an additional extension of time on the last day of the
42a
extension period rather than filing the brief. When counsel
is granted a lengthy extension of time in which to file a
brief and it becomes impossible for counsel to file that
brief, counsel shall inform this Court and request an addi-
tional extension at the earliest practicable date, justif; ng
their inability to file the brief and the necessity for an
additional extension of time to complete the brief.
We find no acceptable excuse for counsels’ failure to
cven begin writing appellant’s brief before the date the
brief was ordered to be filed. We further find that Mr.
Aprile and Ms. Namkin are in contempt of the Order of
this Court entered August 30, 1985, requiring them to file
appellant’s brief on or before June 2, 1986, or appear to
show cause why they should not be held in contempt of this
Court or sanctioned for failure to timely complete the
brief. We find counsels’ explanations as to easeload to
be inadequate to explain their lack of effort to commit any
portion of appellants’ brief to writing. We find no merit
in counsels’ argument that both attorneys must read the
record on appeal in its entirety before beginning work on
appellant’s brief. We find no explanation for failing to
notify us immediately if there were considerations that
would legitimately have prevented their compliance with
our Order of August 30, 1985, when notified thereof.
Being duly advised, it is the order of this Court that
said J. Vincent Aprile, LI, as senior counsel of record, is
found in contempt of court and fined $500 for his contempt.
It is further the order of this Court that said Julie Namkin,
as junior counsel of record, is found in contempt of court
and fined $250 for her contempt.
In consideration of this being the first conviction, pay-
ment of both fines is suspended subject to further conduct.
Costs of this proceeding are assessed against Mr, Aprile
and Ms. Namkin.
All sitting.
43a
Stephens, C.J., and Leibson, Stephenson, Vance, and
Wintersheimer, J.J., concurring.
Gant, J., dissents in a separate dissenting opinion and
is joiu.ed by White, J.
Enterep August 7, 1986.
(s) Robert F. Stephens
Chief Justice
Attorneys for Appellant:
J. VINCENT APRILE, II
Assistant Public Advocate
151 Elkhorn Court
Frankfort, Kentucky 40601
JULIE NAMKIN
Assistant Public Advocate
151 Elkhorn Court
Frankfort, Kentucky 40601
Attorneys for Appellee:
DAVID L. ARMSTRONG
Attorney General
State Capitol
Frankfort, Kentucky 40601
DAVID A. SMITH
Assistant Attorney General
State Capitol
Frankfort, Kentucky 40601
44u
SUPREME COURT OF KENTUCKY
84-SC-566-I
ParraMorE LEE SANBORN - - - - Appellant
v.
COMMONWEALTH OF KENTUCKY - - - Appellee
Appeal from Henry Circuit Court
83-C R-057
Honorable Dennis A. Fritz, Judge
MOTION FOR RECONSIDERATION—Filed Aug. 18, 1986
This Motion for Reconsideration of this Court’s Opinion
and Order entered August 7, 1986, is filed by J. Vincent
Aprile, II, and Julie Namkin, pursuant to CR 76.38. In
its Opinion and Order the Court found the Movants in
contempt of court for failure to show cause why their brief
in this action was not timely filed pursuant to the Court’s
earlier Order.
As we understand the Opinion and Order, the Court
found these Public Advocate attorneys guilty of criminal
contempt, which is defined as an act in disrespect of the
court or its process which obstructs the administration of
justice. Casteel v. Sparks, Ky., 226 S. W. 2d 533 (1950).
The standard to be applied in determining whether an at-
torney is in contempt is to determine whether he or she is
in reckless or willful disregard of the court’s order. United
States v. Delahanty, 488 F. 2d 396 (6th Cir. 1973). The
facts of this case do not suggest that these Publie Advo-
cates were in reckless or willful disregard of the court’s
45a
earlier order. The Court may properly be unset with the
delays which took place in this case, but contempt of court
is not the appropriate way to deal with these problems.
The impact upon the professional standing of a lawyer
created by a citation for contempt of court is not limited
to the monetary amount of the fine imposed. The court
should take great care before imposing that method of
discipline. Miller v. Stephenson, Ky., 374 S. W. 2d 372
(1971).
This Motion is filed for the purpose of seeking the
Court’s reconsideration of its finding of contempt as a
solution for a problem which is neither the fault of these
two individuals nor is likely to be solved so long as the
staffing of the Department remains at its present levels.
We also urge that, in seeking to express its message re-
garding delays and the methods of seeking additional time
for filing of briefs, the Court has unfairly singled out these
two individuals.
The Court relies on several factors in finding the Mov-
ants guilty of criminal contempt and presumably the in-
tentionally contemptuous acts which are necessarily in-
volved in that offense. First, the Court acknowledges that
the Movants asked for an “initial” extension of time of
ten (10) months, making it ciear from their motion that
more time might be requested. The Court suggests in
its Opinion that ten months is an unreasonable length of
time to prepare a brief in a death penalty appeal. Yet the
information filed with the court by the Attorney General
indicates that the average time for filing a death penalty
brief is 12.4 months. So even a 10 month period of time
is below average. In seven of 22 cases, the appellant’s brief
has taken 15 months or more. Movants are hardly deviat-
ing from the norm in seeking more than 10 months to
prepare and file this brief. Certainly this conduct cannot
be deemed contemptuous. It is unfair to single out these
46a
two individuals for contempt on this point when these sort
of delays have become almost routine.
Next the court chastises the Movants for waiting until
the last day before filing their second request for exten-
sion, yet the court recognizes that the practice of waiting
until the last day to file for an extension is a “practice
prevalent in criminal cases.” How can conduct be con-
temptuous when the established practice, which has at least
been tolerated by the Court, is followed? For the Court
to hold the Movants in contempt for following an estab-
lished practice without prior warning that such practice
will not be tolerated is a denial of basic fairness. Con-
sidering that this is a criminal contempt, such a convic-
tion constitutes a denial of Due Process of law and of Equal
Protection under the Kentucky and United States Consti-
tutions.
The Court cites as the third reason for its finding of
contempt the inadequacy of the explanation given by coun-
sel regarding case load. The facts are simply that the
Commonwealth has not budgeted adequate funds to the
Department of Public Advocacy. With the reinstitution of
the death penalty the burden has significantly increased.
As the Affidavit of Movant Namkin points out, even though
she is willing to work many hours of overtime, the Com-
monwealth is not willing to pay her for overtime beyond
certain set amounts. Justice Gant is surely correct in
characterizing these young Public Advocates as “dedi-
cated.” But they are surely frustrated too, for this Court
criticizes them and finds their conduct criminal for failing
to perform on time all that is assigned to them, when at the
same time their employer refuses to pay them adequately
for their overtime work when they try to keep up.
Movant Namkin has explained that she is assigned two
case appeals each month to handle. Obviously, she cannot
prepare a death penalty brief in the 80 hours of work avail-
47a
able in a two week period. Reading the transcript in this
case took many more hours than 80. The Court’s criticism
of Movants is upsetting, especially considering that the
Court does not mention the unusual length of the transcript
in this case, some 10,000 pages. Movant Aprile is not even
assigned to the appellate section of the Department of
Public Advocacy. Preparing appeal briefs is in addition
to his regular duties, but he accepts this work because of
the overload to the staff generally. For this same reason,
Movant Aprile accepts assignments of circuit court death
penalty trials when the staff members who ordinarily handle
those matters are overloaded. Taking on these extra as-
signments does not constitute contemptuous behavior on the
part of a Public Advocate. How can the delays which
result be contemptuous? The hard work and unpaid over-
time necessary to fulfill these commitments constitute an
enormous service to the Court of Justice. It is simply
unfair to the Movants to find them guilty of criminal con-
tempt under these circumstances.
The Opinion and Order is critical because the writing of
the brief for which an extension of time was sought has not
yet begun, but the writing is the last step in the preparation
of the brief. First, the 10,000 page record must be carefully
read, the issues identified and researched, and only then
does the writing begin. The fact that the actual writing of
the brief has not yet begun does not demonstrate criminally
contemptuous conduct.
The Court is critical that the Movants failed to notify
the Court immediately when the need for additional time
became apparent, but no previous Order of this Court has
ever suggested such a practice is necessary. Established
practice suggests otherwise. Following established prac-
tice cannot be categorized as contemptuous conduct. To
impose a criminal sanction for violation of a rule which did
48a
not exist at the time the act was performed is a violation
of Due Process and is an ex post facto law.
If this court perceives a problem in the length of time
in filing death penalty briefs which needs to be addressed,
contempt findings in this case will not solve that problem.
The time of delay involved here is not at all unusual, as the
statistics demonstrate. The conduct of the Movants in
taking the usual amount of time certainly does not indicate
contemptuous conduct. Other, less severe sanctions are
certainly available if the Court finds the delay to be the
result of a lack of diligence. Only if lack of diligence be-
comes so extreme as to constitute disrespect does it rise to
contempt. However, there is no suggestion that the Movants
lack diligence generally in the performance of their many
duties, only that they have put other important matters
ahead of this brief.
Because of their overload the Movants are forced to
make daily decisions with regard to priorities. If Movant
Namkin has three ordinary briefs and one extraordinary
death penalty brief due, she is faced with a decision re-
garding the allocation of time. If she determines to file the
three ordinary briefs on time and seek an extension in the
extraordinary case, she is not acting in a contemptuous
fashion. This Court has made no finding of lack of due
diligence on the part of the Movants in performing their
duties generally. It is certainly true that if the Movants
were to work on their briefs to this Court and abandon their
other duties, the brief involved would have been long ago
filed. Unfortunately, something else would be late and the
problem unchanged. Indeed, the Court may be critical of
the priorities established by Movants. However, this selec-
tion of priorities does not demonstrate a lack of due dili-
gence or contemptuous conduct.
If Movant Aprile has to divide his time between this
appeal and other equally serious trials, he also makes time
49a
priority allocations which are not the result of disrespect
or in reckless disregard of this Court’s Order. There are
only so many hours in a day. This Court of Justice en-
compasses the entire judicial system of the Commonwealth.
The Department of Public Advocacy has duties at the Cir-
cuit Court level as well as at the Supreme Court. Where
there are not enough attorneys available, justice at some
level will be inevitably delayed. This delay does not con-
stitute contemptuous conduct on the part of these two
individuals.
The Court found “counsel’s explanations as to case load
inadequate to explain their lack of effort” on this case. This
may be valid criticism of the priorities adopted by the
Movants regarding the use of their time, but this does not
constitute finding of facts constituting disrespect of this
court. The Court may well feel that the briefs to this
Court deserve the top priority to the neglect of duties in
other courts of this Commonwealth. However, those other
courts have contempt powers too and these dedicated Public
Advocates are placed in a no win situation. By way of
example, the court is surely aware of similar deadlines
placed on these Movants in the Moore, Johnson and Askew
eases. Movants cannot meet all these deadlines at once.
The problem might better be addressed with the establish-
ment of a priority schedule or system.
Movants believe the Court’s use of its contempt power
in this situation will make the problem worse. No matter
how dedicated a young Public Advocate may be, he or she
is not going to remain long in a job and risk contempt of
court for time delays under circumstances where compli-
ance with all demands is simply impossible. The threat of
contempt for lack of diligence to a lawyer who is already
working unpaid overtime will surely discourage diligent
young lawyers from taking opportunities in the Office of
50a
the Public Advocate. Justice will certainly not be served
by such a result.
The Order entered by this Court violates the guarantees
of Due Process of law to the Movants under the Fourteenth
Amendment to the United States Constitution by failing to
observe minimal presumptions of law as well as standards
and burdens of proof in the adjudication of contempt of
court. The Movants were certainly entitled to know prior
to their acts what sort of conduct amounted to criminal
contempt. Movants believed that a demonstration of work
load over which they had no control would be sufficient, as
it has been in the past, to justify failure to file such briefs
and to be allowed an extension of time. The Court has
changed the rules in mid-stream and imposed contempt
penalties upon these Movants in situations which have here-
tofore been tolerated. Accordingly, the failure to give
defendants adequate notice of the type of action which
would be found contemptuous is a Due Process denial.
The standard of proof adopted by the court in order to
find the actions of the Movants in contempt is not made
clear in the Opinion and Order. We presume from previous
cases that such conduct must involve acts disrespectful of
the Court, but the Opinion and Order nowhere defines the
elements of the offense or makes factual findings in this
regard. Furthermore, the standard of proof itself, whether
it is beyond a reasonabie doubt or clear and convincing or
some other standard is not made clear. The Rules of Civil
Procedure, 52.01, and Criminal Procedure, 9.26(2) require
specific findings of facts and conclusions of law. Failure to
follow the court’s own rules constitutes a Due Process
denial.
It is a violation of the Movants’ right of Due Process for
the Court to fail in its Order to specifically identify those
acts of the Movants which constituted criminally contemp-
tuous conduct and to indicate the manner in which those
5la
acts were found to be an act intentionally disrespectful of
the Court or its process.
It is quite easy in this case to write an Opinion very
embarrassing to the Movants, pointing out that after a ten
month delay the entire record had not yet been read by one
of the appellate attorneys. It is also easy to suggest con-
tempt by simply saying that the Movants’ explanations of
work overload and the burdens of other cases are not ade-
quate. Such an Opinion will certainly serve to embarrass
and humiliate the Movants unnecessarily, but it will not
alleviate the problems of work overload in the Office of
Public Advocacy. Nor will it prevent these same problems
from occurring again.
CONCLUSION
We move this Court to reconsider and modify its Opin-
ion and Order. We urge that the Opinion and Order be
redirected to the real source of the problem, the burden of
overload upon these Public Advocates. If sanctions are
necessary, the Court should adopt methods other than con-
tempt of court in order to draw to the attention of practi-
tioners generally the problems of extended delays in filing
appellate briefs and in waiting until the last minute to
make motions for additional time. Movants believe due
process requires that they be given prior notice that last
minute motions for extension of time will be considered
contemptuous and that requests for extension of time
similar to those which have been granted in other cases, for
the very same reasons, will also be considered contemp-
tuous. The failure to make the contemptuous nature of
such practice clear prior to imposing contempt violations
is improper. Movants believe that even with notice that
such conduct will be considered contemptuous, the under-
lying problem will not be solved. Tn all events, however,
the contempt citations against these particular Movants
52a
should be withdrawn and the Opinion and Order appro-
priately modified.
(s) Robert C. Ewald
Wyatt, Tarrant'& Combs
Citizens Plaza
Louisville, Kentucky 40202
(502) 589-5235
Counsel for Movants
CERTIFICATE
I certify that a copy of the foregoing pleading was
mailed, first class mail, postage prepaid, this 18th day of
‘August, 1986, to David L. Armstrong, Attorney General,
State Capitol, Frankfort, Kentucky 40601 and to David A.
Smith, Assistant Attorney General, State Capitol, Frank-
fort, Kentucky 40601.
(s) Robert C. Ewald
53a
SUPREME COURT OF KENTUCKY
84-SC-566-MR
PaRRAMORE LEE SANBORN - - - - Appellant
v.
CoMMONWEALTH OF KENTUCKY - - - Appellee
Appeal From Henry Circuit Court
No. 83-C R-057
(Hon. Dennis A. Fritz, Judge)
ORDER DENYING MOTION FOR RECONSIDERATION
ORDER MODIFYING OPINION
Appellant’s motion for reconsideration is denied and the
opinion and order rendered by this court on August 7, 1986,
is modified on its face.
ENTERED September 25, 1986.
(s) Robert F. Stephens
Chief Justice
All sitting.
Stephens, C.J., and Leibson, Stephenson and Winter-
sheimer, JJ., concurring. Vance, J., would impose sanc-
tions, but without a finding of contempt. Gant, J., dissents
in a separate dissenting opinion and is joined by White, J.
Enterep August 7, 1986.
(s) Robert F. Stephens
Chief Justice
Attorneys for Appellant:
J. VINCENT APRILE, II
Assistant Public Advoeate
151 Elkhorn Court
Frankfort, Kentucky 40601
JULIE NAMKIN
Assistant Publie Advocate
151 Elkhorn Court
Frankfort, Kentucky 40601
Attorneys for Appellee:
DAVID L. ARMSTRONG
Attorney General
State Capitol
Frankfort, Kentucky 40601
DAVID A. SMITH
Assistant Attorney General
State Capitol
Frankfort, Kentucky 40601
54a
5da
SUPREME COURT OF KENTUCKY
84-SC-566-I
PaRRAMORE LEE SANBORN ~ - - - . Appellant
v.
CoMMONWEALTH OF KENTUCKY - - - Appellee
Appeal From Henry Circuit Court
No. 83-CR-057
(Hon. Dennis A. Fritz, Judge)
MOTION TO VACATE THE FINDING OF CONTEMPT
OF COURT—Filed October 6, 1986
This Motion to Vacate the finding of contempt of court
contained in this Court’s Opinion and Order entered August
7, 1986, and modified by this Court’s Order of September 25,
1986 is filed by J. Vincent Aprile, II, and Julie Namkin, by
the undersigned counsel. In its Opinion and Order, as
modified, this Court, by a 4-3 vote, found the Movants in
contempt of court for failure to show cause why their brief
in this action was not timely filed pursuant to the Court’s
earlier Order.
In the original Opinion and Order of August 7, 1986,
five Justices of this Court—Chief Justice Stephens and
Justices Leibson, Stephenson, Vance and Wintersheimer
concurred in the finding that both J. Vincent Aprile IT and
Julie Namkin were in contempt of court. Justice Gant and
White dissented and found no contempt of court. In the
Opinion and Order of August 7, 1986, by a vote of 5-2, this
Court found Mr. Aprile and Ms. Namkin in contempt of
court.
56a
On September 25, 1986 this Court entered an Order
Denying Motion for Reconsideration and Modifying Opin-
ion in which Justice Vance, in a change of position, voted to
“impose sanctions, but without a finding of contempt.” As
a result of this modification of the Opinion and Order of
August 7, 1986, this Court found Mr. Aprile and Ms.
Namkin in contempt of court by a vote of 4-3, even though
five Justices would impose sanctions.
As noted in the Motion for Reconsideration filed prev-
iously in this case, the standard of proof applied by the
court in this case, whether it is beyond a reasonable doubt
or clear and convincing evidence or some other standard, is
not made clear. The applicable standard of proof in a
criminal contempt case is beyond a reasonable doubt.
“Without deciding what may be the rule in civil contempt,
it is certain that in proceedings for criminal contempt the
defendant is presumed to be innocent, he must be proved
guilty beyond a reasonable doubt, and cannot be compelled
to testify against himself.” Gompers v. Bucks Stove &
Range Co., 221 U. S. 418 (1911). See also Michaelson v.
U.S., 266 U.S. 42 (1924) ; Blackard v. State, 217 Ark. 661,
232 S. W. 2d 977 (1950); Brannon v. Commonwealth, 162
Ky. 350, 172 S. W. 703 (1915).
Further, Movants contend that the standard of proof
beyond a reasonable doubt is not satisfied in this case
because only four of the seven justices found that he was
guilty of contempt. Ultimately, Justices Stephens, Leib-
son, Stephenson and Wintersheimer found that Movants
were guilty of contempt. Justice Vance believed that sanc-
tions were warranted, but without a finding of contempt.
Justices Gant and White dissented and found no contempt.
While it is true that unanimous verdicts are not con-
stitutionally required in state criminal trials, a 4-3 verdict
does not satisfy the requirement of a finding of guilt beyond
a reasonable doubt. In Apodoca v. Oregon, 406 U. S. 404
57a
(1972), and Johnson v. Louisiana, 406 U.S. 356 (1972), the
Supreme Court held that jury verdicts of 11-1 and 10-2
were not automatically invalidated. In his Johnson con-
currence, however, Justice Blackmun expressed the view
that verdicts of less than a substantial majority would
possibly not withstand attack. Justice Blackmun stated:
“T do not hesitate to say, either, that a system employing
a 7-5 standard, rather than, a 9-3 or a 75% minimum,
would afford me great diffeult.” Johnson, 406 U. S. at
366. The 4-3 decision in this case simply cannot be said
to demonstrate a finding beyond a reasonable doubt that
Movants were guilty of criminal contempt.
“The function of a standard of proof, as that concept
is embodied in the Due Process Clause and in the realm
of factfinding, is to ‘instruct the factfinder concerning the
degree of confidence our society thinks he should have in
the correctness o/ factual conclusions for a particular type
of adjudication.’” Addington v. Texas, 441 U.S. 418, 423
(1979), quoting In re Winship, 397 U. S. 358, 370 (1970),
(Harlan, J., concurring). “The standard serves to allocate
the risk of error between the litigants and to indicate the
relative importance attached to the ultimate ‘ decision.”
Addington, supra at 423. “In cases involving individual
rights, whether criminal or civil, ‘[t]he standard of proof
[at a minimum] reflects the value society places on indi-
vidual liberty.” Addington, supra at 425 (citation omit-
ted). “[T]he function of legal process is to minimize the
risk of erroneous decisions.” Id.
The validity of these general principles of federal con-
stitutional law are reflected in the day-to-day practice in
the courts of Kentucky.
In Kentucky ‘“‘the agreement at least three-fourths (34)
of the jurors is required for a verdict of all civil trials by
jur, in circuit court,” while “[t]he agreement of at least
five sixths (5/6) of the juriors is required for a verdict in
58a
all civil trials by jury in district court.” KRS 29A.280(3).
See Sec. 248, Ky. Const. Agreement of 75 percent and 83
percent of the fact-finders in civil cases in the circuit
courts and district courts of the Commonwealth, respee-
tively, is a far ery from 57 percent agreement of the fact-
finders in the instant ease which resulted in the finding of
contempt of court.
In Kentucky as the number of fact-finders decreases
from twelve in cireuit court to six in district court, the
percentage of agreement among fact-finders for a verdict
increases from 75 percent to 83 percent. See Burch v.
Louisiana, 441 U. S. 130, 134 (1979), where conviction by
a nonunanimous six-member jury in a state trial for a
nonpetty offense deprives an accused of his constitutional
right to trial by jury.
“(The critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction must be . . .
to determine whether the record evidence could reasonably
support a finding of guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U. S. 307 (1979). The bare ma-
jority vote of 4-3 by an appellate court serving as initial
fact-finder on the question of whether movants’ conduct
constituted contempt of court demonstrates a constitu-
tional deficiency in the sufficiency of the evidence mar-
shalled against the movants.
CONCLUSION
For the foregoing reasons, we move this Court to vacate
its finding of contempt of court in its Opinion and Order,
as modified.
It is fundamentally unfair and violative of due process
to be subject to an order which does not specify the ele-
ments of the offense and the standard of proof applied or
make specific findings of fact and conclusions of law.
59a
Further, there is simply not enough weight in a 4-3 de-
cision to support a finding of guilt beyond a reasonable
doubt. In all events, however, the contempt citations
against these two partciular Movants should be vacated
and withdrawn.
(s) Robert C. Ewald by J.V.A. II
Robert C. Ewald
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202
(502) 589-5235
Counsel for Movants
CERTIFICATE
I certify that a copy of the foregoing pleading was
mailed, first class mail, postage prepaid, this 6th day of
October, 1986, to David L. Armstrong, Attorney General,
State Capitol, Frankfort, Kentucky 40601 and to David A.
Smith, Assistant Attorney General, State Capitol, Frank-
fort, Kentucky 40601.
(c) Robert C. Ewald by JVA II
Robert C. Ewald
60a
SUPREME COURT OF KENTUCKY
84-SC-566-I
PaRRAMORE LEE SANBORN - - - - Appellant
v.
COMMONWEALTH OF ICENTUCKY . - . Appellee
On Appeal from Henry Circuit Court
Honorable Dennis A. Fritz, Judge
83-C R-057
ORDER
The motion of Honorable J. Vincent Aprile, IT, and
Honorable Julie Namkin to vacate the finding of contempt
of court contained in this Court’s Opinion and Order en-
tered August 7, 1986 and modified by this Court’s Order
entered September 25, 1986, is denied.
Stephens, C.J., and Gant, Stephenson, Vance, White and
Wintersheimer, JJ., sitting. All concur.|
Leibson, J. not sitting.
EnterED October 31, 1986.
(s) Robert F. Stephens
Chief Justice
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.