# Opposition Brief — Aprile v. Kentucky > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2402%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 479 U.S. 1055 ## Text 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 V4 : a « * , way oe : a = 9 = i ‘ “ak 7 - a : é *Z G & "| “1 é . ‘ rl a 4 « 7 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.