Louisville Law Examiner Serving the University of Louisville School of Law Community
Volume 10, Number 6 Louisville, Kentucky, May, 1985 Circulation 5400
Franklin and King 
Louisville Tort Lawyers
 Enjoy Teaching at U of L
by Benjamin Johnson
Louisville lawyers Larry Franklin and
Nick King are seen almost as frequently
in the halls of the Law School as they are
at the Hall of Justice. But their presence
on campus isn't aimed at picking up
Continuing Education credits. Rather,
they are in the business of awarding
credits, to the students who successfully
participate in the Courtroom Law and
Technique seminar taught by both
practitioners at different times over the
last decade.
Franklin and King are both
particularly well-qualified with respect
to this program, which offers practical
advice as to "the use of demonstrative
evidence and other devices in personal
injury suits," according to the Jaw
school catalog. Their firm is regarded as
among the best in the state in the
litigation of personal injury and other
tort issues.
Their credentials aside, both
practitioners bring no small measure of
personal enthusiasm to school with them
when they administer the seminar. When
asked why they leave even temporarily
the pressures of private practice for the
more rarified air of academe, each
responds readily, "Because I enjoy
teaching."
Adds Franklin, "I feel I have insight,
something to offer the students." A
Louisville native and a graduate of the
United States Naval Academy at
Annapolis, Franklin came to the U of L
law school in 1958 after leaving the
Navy.
"I was a night student, and in those
days there was little interaction between
that student body and the practicing
bar," Franklin said. "I saw teaching as
a way to correct this, to bring night
students into the bar."
In describing law as "a unique
profession which brings together all the
community," Franklin indicates that
there is another lesson he hopes to
impart to his students.
"Young people sometimes lack
empathy," he said. "If I can show them
that the law of torts is becoming more
tolerant, more sensitive to the needs of
people, then perhaps they witl apply this
idea to their overall approach to the law
as a whole."
With regard to the evolution of the
law, Franklin sees increasing social
pressure to impose stricter sanctions in
areas like products liability. "I call this
the tort of outrage. Large conglomerates
are being shown that they can no longer
invade the rights of the community at
large. Plaintiffs don't have to lose an
arm or a leg any to suffer, or to
recover.''
As far as these pressures are
expanding the boundaries of the
common Jaw torts, King agrees.
' 'in the academic area of tort law, we
are moving to broader causes of
Photo by Nancy Morgan
Federal Judge Charles M. Allen and his wife, Betty came to the Law School
recently for a special ceremony during which Judge Allen received the
Brandeis Medal.
action," he said. A native of Brooklyn,
N.Y., he arrived at the U of L Law
School by way of Florida State
University, the University of Oklahoma
(where he obtained a master's degree in
public administration), and the United
States Air Force. The '69 graduate sees a
developing tendency among the
legislative establishment to move the
litigation of tort issues away from the
trial by jury to adjudication by the
bench or by expert panels, as in cases
involving medical malpractice.
"There is a tremendous move afoot to
deny a person a right to a jury trial,"
King said. Similar trends would work
"to limit a person's right to an award to
an arbitrary amount, or limit a person'a
ability to sue." King opppses this,
saying, ''I feel that lawyers and the
judiciary ought to take a stand on this."
He adds that "tort law is expanding
because society wants it to. I think it
now more clearly meshes with what
people deem to be fundamental."
In showing students how these and
other factors bear on the actual conduct
of a trial, King finds that benefits accrue
mutually. ·
"We (he and Franklin) both enjoy it,
and usually we learn something, too. It's
hard to be in contact with the number of
people we see in the seminars without
learning something."
Student interest in courtroom practice
enhances this, he said.
"When the student is exr,ose i to a
subject matter on a very practical basis,
almost without exception they respond
very enthusiastically.''
D omest l•C T, 7l•O le nce ... HToo lPlernobsaecchu tSe tAarbtus sUernsi t
By L.J. Hollenbach, III
Jefferson County Commonwealth's
Attorney
In our constant battle against crime in
Jefferson County, there is one area
which calls out for immediate and
powerful response: That area is what has
come to be known as "domestic or
family violence."
While overall crime rates have been
lower in recent years, the rate of violent
crime has increased dramatically and
alarmingly both nationwide, and worse,
here in Jefferson County. The greatest
increase, and indeed the crux of the
problem, emanates from the family
home where the victims and perpetrators
alike enjoy some type of familiar
relationship. These crimes include
murders, assaults, spouse and child
abuse, rape, sodomy and molestations
aimed at women, children and the
elderly. Rape is up almost 20 percent
nationwide, and sex crimes are up an
unbelievable 59 percent in Metropolitan
L.J. HOLLENBACH, III
Jefferson County. Something must be
done- now.
Domestic crimes are not new to our
society, but in the past they went
unreported and, for the most part,
unprosecuted.
Violence will breed more violence. It
is undisputed that a great proportion of
those who commit violent crimes were
themselves the product of a home where
violence was practiced and tolerated.
Violence is learned behavior. To tolerate
it only guarantees its perpetration.
The response in Jefferson County
must be immediate and determined. I
am proposing to the Jefferson Fiscal
Court that my office organize and
implement a specialized unit for the
prosecution of domestic violence as of
July 1, 1985.
We have reviewed the Attorney
General's report, and we have contacted
prosecutors from New York to
California; and, we conclude that the
benefit of such a unit is outweighed only
by the need for it.
The Domestic Violence Unit is
designed to prosecute crimes arising
from familiar relationships, or crimes
perpetrated against children or the
elderly. The victims and witnesses of
these crimes require special attention
and preparation if prosecution is to be
successful; and, that prosecution
demands a dedicated, concentrated team
effort.
The prosecutors in this unit will be
specifically selected and specially
trained. They will be characterized not
only by their expertise at litigation, but
by their compassion and ability to
communicate with their unique victims
and witnesses. I have currently
designated two prosecutors to attend a
course in the prosecution of such crimes
conducted by the National College of
District Attorneys. These prosecutors
will form the nucleus of the new unit,
and will be ready to commence
specialized prosecution in July.
The unit also includes two victim
advocates who are absolutely essential to
(Continued on page 7)
l Louisville Law Examiner, May, 1985
Louisville Law Examiner
EDITORIAL BOARD
John Schaaf
Editor-in-Chief
Crystal Collins
Managing Editor
Nancy Morgan
Photography Editor
Tim Cocanou~ther
Brandeis Brief Editor
Jon Hardy
Mike Schafer
Rebecca Ward
Joel Zakem
Associate Editors
PeaKY Weiner Dyer
Benjamin Johnson
Winnie McConnell
Night Associate Editor
STAFF
Tom Lukins
Jennifer Miller
Doug Neagll
Tom RansdeU
David E. Williams
Profeaor LAURENCE W. KNOWLES, C.,IIIUitant
The Louisville Law Examiner is published six times during the academic
year in the interest of the University of Louisville School of Law community.
Articles are invited from faculty members, students, and members of the bar
who wish to do freelance work. Any proposed article should be cleared with
the Editor as to topic and length.
Address all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville, Kentucky 40292.
Phone: S02-S88-6398.
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Editorial
Local Labor Lawyers
Could Boost Faculty
One of the strengths of the University of Louisville School of Law is its
labor law curriculum. The curriculum has been developed over the years by
people who have been actively involved in the field of labor law and in
teaching at the Law School. Unfortunately, several of these people will be
retiring in the next few years, but it is hoped their successors will be just as
supportive of the current curriculum.
We would suggest that the Law School should consider looking close to
home for the people who will replace these retiring professors. This
community enjoys the benefits of an excellent labor law bar. It is reasonable to
expect that one or more of the local attorneys with labor-related experience
might be willing to consider taking on positions as teachers at U of L.
When the Law School needs new faculty members, it usually approaches the
selection process in the traditional way. That is, resumes are analyzed and
interviews are conducted at a group meeting in Chicago which brings together
prospective teachers and law school hiring committees. While this approach
works well enough in most cases, it only makes sense for U of L to look first to
downtown Louisville in its search for new labor law faculty members.
Surely there are numerous arbitrators and labor practitioners in the
community who would be interested and qualified to give students the benefit
of their experiences in the field. While the teaching methods of these
practitioners might not resemble the traditional case law approach, their
practical backgrounds would be invaluable in explaining and discussing the
realities of current trends in labor law.
The strength of the Louisville labor law bar is demonstrated most effectively
by the powerful presence of local attorneys on ABA Labor and Employment
Law Section committees. In addition, there are numerous other attorneys with
wide-ranging labor experience who, if approached, might be interested in
working with U of L to assure continuance of a well-rounded labor law
program.
Over the years, the School of Law has attained excellence in this field. With
the help of experienced practitioners, the stan ards we have developed can be
maintained and strengthened, and U of L graduates will continue to have a
significant impact in the area of labor law .
While we're making suggestions, we would also urge the School of Law and
interested local attorneys to redouhle their efforts and do everything possible
to attract more black student:; to U of L. Financial aid cuts by the Reagan
Administration and tight budgets everywhere in higher education have made
this task much more difficult for law school administrators. However, a more
diversified student population will produce attorneys who are better prepared
to practice law in a world which consists of many different kinds of people.
For whatever reason, the number of black students currently attending U of
L's School of Law is very low. In an even more aggressive fashion, the school
must continue its work with Kentucky's undergraduate schools to attract more
black students. In addition, local law firms and attorneys need to increase their
support for U of L's recruitment efforts. Increased financial assistance from
the legal community would help the school overcome some of the problems
cau'sed bYeciucation budget cuts.
The key is money, and with more of it available for scholarships and
recruiting, the school could make some significant steps toward alleviating
what is surely our most pressing need. If we can go to school together now, it
will be much easier for us to work together later.
Congratulations to all those who passed the February bar exam in
Kentucky, particularly the U of L graduates who chalked up a 91 percent pass
rate, highest of the state's three law schools. All of U of L's first-time exam
takers passed the test.
U of L's graduating seniors are grateful toProfessors Les Abramson and AI
Quick who recently conducted review sessions on Criminal Procedure. Using
their own time and initiative, these professors went out of their way to help
students be better prepared for the July bar exam. This type of cooperative
effort will go a long way toward helping U of L maintain high success rates on
future bar exams.
by Winnie McConnell
"What man has made, man can
change."
Frederick M. Vinson, Chief Justice of
the U.S. Supreme Court, 1946-1953.
"Change is not made without
inconvenience, even from worse to
better."
Richard Hooker, English theologian.
The concept of "change" has been
analyzed and discussed for years by
many notable individuals. It has been
viewed by some as a threat to our
constant being, while others look upon
change as beneficial to ourselves and to
society in general.
With this in mind, several law
students in the evening division at U of
L's School of Law were asked to
recommend changes, if any, they would
like to see made for the 1985-86 school
year.
Several night students said they would
like to enrolfin day division law courses
without any limitations on the number
of classes allowed. As it stands now, the
scheduling policy allows students to take
a class in the other division if (1) there is
a class conflict, or (2) the course in the
other division isn't currently offered in
the division in which the student is
enrolled, plus one additional course in
By Phyllis Leibson
Law School Placement Office
Many successful people have changed
jobs several times during their careers.
Job change can be left to chance or it
can be the result of a calculated job
search. If you are looking for a job with
more satisfaction, you may want to
consider some of the following steps.
Self-assessment is the first step toward
finding a job. Knowing what interests
you, what skills you have, and what
situations you enjoy can give your job
search direction. Employers like
candidates with a career goal or at least
some focus. Also, by evaluating your
strengths and weaknesses, you will know
what to promote about yourself. This
Louisville Law Examiner, May, 198S
the other division for no reason at all.
"There needs to be no distinction
between day and night students
concerning the availability of courses,"
said R. Allen McCartney, adding this
hampers many students who could
complete their class requirements earlier
if they were given this option.
Beth Severs agreed, saying it is
especially important to night students
because of the limited number of classes
offered at night.
"Students should be able to choose
classes based on their own individual
needs rather than worry about whether
or not they've taken too many hours in
the wrong division," she said.
However, Suzanne Schrader believes
the law school should retain its
scheduling policy and apply more
stringent rules in each division.
"If you are a student who is abl~ to
take -day classes, then you should "be
enrolled in the day division," she said.
"The same goes for night school, it
should be solely for people who work
full-time."
Schrader, who is an accountant, said
when she entered law school three years
ago she thought the night division was
for those people who worked full-time
during the day. However, to her dismay,
she found a majority of her colleagues
either were employed part-time or not at
all.
"This is a real disadvantage for those
who work full-time to compete with
others who have had a chance to prepare
for class all day," she said. "You can
pick out those people, who come into
class fresh, from the remainder of those
people who have worked all day long
and have only had a short time to review
for class."
David King would like to see a revised
academic advisory program for night
students to ensure graduation at the
appropriate time with the necessary
requirements. ·
"I think improved academic advising
is needed, especially for evening division
students who frequently have less access
to the faculty members due to their
working schedule," King said. "If a
student misses a required course in the
evening division, this would delay
his/her expected graduation date due to
scheduling conflicts and to the bi-yearly
courses.''
To prevent this unforeseen mishap,
King suggested that individual
assignments of faculty members to each
student should be incorporated. In
addition, he said a review of the courses
taken between the advisor and student
should be done one year prior to
anticipated graduation to ensure the
student is on track with his or her
courses.
3
Severs would like more full-time law
professors to teach evening division
classes. "I think full-time professors
should teach more classes at night to
give the students the benefit of their
expertise in teaching," she said.
McCartney said he would like the law
school, prior to the state bar
examinations, to provide students with a
review session involving the professors
who have taught bar courses.
Turning away from changes involving
curriculum and academic policies, the
night students interviewed made several
other amusing suggestions.
According to Schrader, the ideal
change for night students next year
would be reserved parking spaces
located in the parking area between the
Law School and the Administration
Building.
In addition, she said the school should
be more willing to cancel classes during
bad weather. "When other universities
cancel, we should too, and count it off
as an absence," she said.
One last request - to place coat racks
in the classrooms!
"We desperately need some place to
hang our coats and jackets," said
McCartney. "As it stands now, we
either have to place them on the floor or
wear them during class."
Placement Office Offers Tips
To Benefit All Job-Seekers
self-discovery often promotes
confidence, another quality employers
like. A job-seeker can take self­evaluation
tests individually or he or she
can utilize the services of a career
counselor. A minimal investment of
time on this step will save much time on
the following steps.
Now that you are aware of what you
can offer an employer and what type of
environment you are looking for, it is
time to explore and identify potential
employers. Step two is research. Sources
for information can be newspapers,
professional journals, Bar directories, a
law library, a public library, the
placement office, telephone books,
alumni lists, Chambers of Commerce,
and people you meet. Your goal is to
make a list of places where you think
you would like to work and gather
information about them so you will be
prepared to interview. You can also
learn about salaries, other
compensation, hiring practices, and
timing for issuing job offers.
Step three is resume-writing. The
resume most often serves as a means of
introduction, therefore, it should always
be professional looking, typeset or
neatly typed and copied on heavy bond
paper. The resume should be prepared
to promote strengths and to include
information applicable to the position
being sought. A variety of formats are
used for resumes. Samples are available
in the Placement Library. If you want
help in drafting a resume, you are
welcome to make an appointment by
calling 588-6368.
In step four, you are now ready to
begin making contacts. You can sit
around and wait for that perfect
position to be advertised (NOT
LIKELY) or you can prepare to talk to
the person who has the power to make
an offer. Of all the positions available,
only 20 percent are ever advertised. If
you do see an advertisement for a
position that interests you, immediately
send your resume with a cover letter
indicating your interest in talking with
the contact person. Specify that you are
looking forward to a response.
If a position is not advertised, the
most effective way to get the interview
with the person who hires is by a
referral. You will have to utilize your
investigative and networking techniques
until you can get referred to the top. If
you have to approach the employer
"cold," without a referral, you can at
least impress the employer with your
resume and cover letter. In your cover
letter you can illustrate your familiarity
with the firm or company and express
your sincere desire to learn more from
him or her. Prepare for many rejections
from "cold" contacts, but keep in mind
that it only takes one positive response
to make all the effort worthwhile.
The interview is the next step. This
face-to-face situation is the most crucial
stage in the job-seeking process. You
will need to be prepared with confidence
and humility, questions and answers,
good eye contact and a firm handshake.
There are books on the subject in the
Placement Library at the U of L Law
School. Alumni are also eligible to
participate in the video-taped interview
clinic sponsored by the University
Placement Office.
Throughout the job-seeking process,
keep good records. Keep copies of
correspondence, impressions, and
suggestions of referrals. Be sure to
follow up on all contacts. Following
each interview, send a thank you note.
This gesture of thoughtfulness is
recommended for referrals and
secretaries too.
The job search is a time-consuming
task, but it can be a learning experience
that can lead to opportunities to enrich
your life.
4 Louisville Law Examiner, May, 1985
BRANDEIS BRIEF ... 'New' Death
by Kevin McNally and
Gail Robinson
Kevin McNally and Gail Robinson are
May and December 1976 magna cum
laude graduates of the University of
Louisville School of Law. Each
graduated second in their respective
class. They have handled trial and post­conviction
capital and non-capital cases
for the Department of Public Advocacy
for the last eight years. Gail and Kevin
also supervise public defender trial
services in different areas of Eastern
Kentucky. Between them they have five
clients on death row. Kevin is the
Department's Death Penalty
Coordinator.
Gail and Kevin are married and live
with their two boys on a farm in
Franklin County. They previously were
instructors at the University of Kentucky
Law School. Kevin argued and won
Carter v. Kentucky, 450 U.S. 288 (1980).
Gail will argue before the Supreme
Court in October. Alcorn v. Smith, cert.
granted, 105 S.Ct. 1353. (1985).
Oose Enough for Government
Work: The "New" Death
Penalty and Its Hidden Costs.
We live in a time when the limits of
government have become the focus of
attention. Our leaders are oft-times
criticized for the failure to perform basic
governmental services efficiently or
effectively. We take them to task on
everything from misdirected efforts at
helping the unfortunate to transforming
an income tax form into a nightmare.
Our skepticism of government's
abilities has limits, however. We have
entrusted to that entity the ultimate
power of life and death. More to the
point, statutes authorizing capital
punishment entrust to government
officials the god-like task of fairly and
rationally choosing a few from among
many who must die. Likewise, we assign
to state employees the job of carrying
out executions in as "professional" and
dignified a way possible. These are, of
course, contradictions in terms. Thus
far, government has failed us again. The
impossibility of the task becomes ever
more apparent. However, we don't seem
to mind.
Looking Back At Furman
Even as lawyers for the condemned we
can't help but feel great sympathy for
the Court as the Justices seem, while
trying to do the right thing, to run smack
into a brick wall every which way they
turn - trapped in the capital
punispment maze. In McGautha v.
California, 402 U.S. 183, 186 (1971),
decided only one term before Furman v.
Georgia, 408 U.S. 238 (1972), the Court
rejected due process challenges from
California and Ohio to death sentences
resulting from "the absolute discretion
of the jury." It was "beyond present
human ability," the Court said, to
"identify before the fact those
characteristics of criminal homicides
and their perpetrators which call for the
KEVIN McNALLY
death penalty ... [and] which can be fairly
understood and applied by the
sentencing authority ... " 402 U.S. at
205. McGautha also rejected a challenge
to Ohio's procedure of determining guilt
and penalty at a single trial with a single
verdict.
Shortly thereafter, Furman held, of
course, that the death penalty was being
"wantonly" and "freakishly" applied
and it, therefore, violated the
Constitution. Although this was only
Justice Stewart's conclusion, other
members of the majority relied on
similar reasons. Justice Douglas found
discrimination to be the key
constitutional flaw. Justice White
concurred because of infrequency and
arbitrariness. "[T]he death penalty is
exacted with great infrequency even for
the most atrocious crimes and ... there is
no meaningful basis for distinguishing
the few cases in which it is imposed from
the many cases in which it is not." 408
U.S. at 313. These concepts -
arbitrariness, disproport ionality,
discrimination and infrequency - are
presumptively the evils which have been
eliminated from the "new" death
penalty statutes. KRS 532.025, 532.075.
Ironically, these new schemes are based
on the bifurcated proceeding/guided
discretion theories rejected in
McGautha. The thrust of Justice
White's concurring opinion in Gregg v.
Georgia, 428 U.S. 153, 223 (1976) was
that the new laws would not necessarily
be "administered .. .in a discriminatory,
standardless or rare fashion." After 8
years and 41 executions we see history
repeating itself. But few seem
concerned.
Can We Kill Them All?
As of March 1 of this year, 1460 men
and 19 women were condemned to
death. Only 50.84 percent were white­a
statistic little different from pre­Furman
days. Of the 41 executions (35
involuntary) by April 1 since Gregg -
27 were white and 14 were black . All but
one killed a white person(s).
"It is not easy to imagine how many
people [are condemned to death]. If
death row were really a row, it would
stretch for 1.3 miles, cell after six-foot­wide
cell." Bruck, "Decisions of
Death," The New Republic (12/12/83).
One year and five months later, Bruck's
imaginary death row would stretch
another \IJ of a mile. Despite increased
executions, it grows ... like some giant
GAIL ROBINSON
tumor. We added 159 in 1979, 187 in
1980, then 228 the next year, 264 in
1982, and 310 in 1983. In order to rid
ourselves of the "backlog" we must
"execute one person a day, six days a
week" (of course, not on Sunday) until
the summer of 1990. Meanwhile, we
would have continued to add new
candidates at an alarming pace.
"If...the number added per year is any
higher than 150, the United States will
be legally killing one person a day, as
regular as clockwork, well into the 21 st
century." Cheatwood, "Our Death
Rows Could be Killing Fields,"
Newsday, (3 / 4/ 85).
Kentucky's Experience
The Southeastern United States is
known as "the death belt" among
capital punishment opponents. This
continues to be true today as Florida,
Texas, Louisiana and Georgia lead the
way. Kentucky was, prior to Furman
and the moratorium on executions, a
leading "death penalty state" with more
per-capita executions (compared to
population) than, for example, Texas
and Florida. Beginning in 1911 with a
black 18-year-old from Marion County
named Jim Buckner, there have been
171 Kentucky executions. Ninety-four
(55 percent) were black. All were men.
Half were first offenders. Twenty-two
were executed for rape - all but two of
these black. As far as we can determine,
all (or nearly all) 171 killed, raped or
robbed members of the Caucasian race.
Unlike the national statistics, where
50 percent of the condemned continue to
be members of minority races, Kentucky
juries sentenced only 3 blacks of the first
24 to death. Five of the last 6 have been
black, however, totalling 25 percent (6
of 24) of the present death row
population. Only one Kentuckian has
been sentenced to death for killing a
member of a minority race since the
effective date of the statute.
Since December 22, 1976 through
January I, 1984, there were
approximately 507 non-white victims of
murder or non-negligent homicide. As
there have been 1689 white victims of
murder or non-negligent homicides in
Kentucky between 1977-1984, the
chances of ending up on death row if
you kill a white person is .016. If you kill
a black the chances are .002 or 8 times
less. By way of comparison, there have
been 500 female murder victims (7 fewer
than black victims). Yet, 20 convicted
slayers of females have been sentenced
to death - 4 chances out of 100. This
demonstrates, as data has in Texas,
Florida, Georgia, Ohio and elsewhere,
"a single underlying racist tenet that
white lives are wortl,l more than black
lives."
Sex of the defendant counts too. With
the removal of Laverne O'Bryan from
death row, it is an all-male domain.
None of the 279 females arrested since
1977 for murder or non-negligent
homicide will die at the hands of the
executioner. Counting 0' Bryan, a
woman who kills has about a .36 percent
chance of living on death row for, at
least, awhile. The 1825 males have over
3 times the chance: 1.4 percent.
In addition to sexism and racism,
elements of arbitrariness and
disproportionality persist. Certain
prosecutors do not seek and/or juries in
certain areas will not return death
verdicts. The accident of geography may
decide who lives and who dies. There are
many cases of middle-aged felons who
commit ghastly murders but are spared.
Yet, the prosecution sends Todd Ice to
death row in Eddyville (and is trying to
do so again) although he was barely 15
at the time of the crime.
Infrequency is another constitutional
defect that remains in essentially the
same form as in the "old days." With
approximately 2196 victims of homicide
during the period in question, the
chances of ending up on death row for
killing someone is around 1 percent. If
one looks at felony murders (466), the
chances are still only 6 percent.
The Lottery
There were 19,000 homicides in this
country last year. Twenty men were
executed. Even if the rate doubles every
year, we will kill only a handful of
killers. How does one win this lottery? It
is hard to say. Usually a bad crime and
always bad luck seem to be the winning
combination. Beginning with John
Spinkelink, a most unlikely candidate
for execution - especially the first, the
death penalty continues (to use a tired
metaphor) to strike like lightning.
Spinkelink's execution even troubled
conservative columnist William F.
Buckley, Jr., because of the possible
validity of Spinkelink's self-defense
claim and Governor Askew's odd choice
of him from "a number of uncommon
murderers." The prosecutor offered
Spinkelink a 2nd degree murder plea. He
refused and went down in history.
For some, the bad luck comes in the
form of a judge hell bent on filling up
death row. Ernest Dobbert was
electrocuted on September 7, 1984 after
a gigantic legal battle lasting 12 years.
His jury had voted 10-2 for life
imprisonment. Dobbert v. Florida, 432
U.S. 282 (1977). Dobbert had the
misfortune to run into Judge Olliff from
Jacksonville who sentenced him and
four other defendants to death row
consistently rejecting jury
recommendations of life. Each time
Judge Olliff recited the same "boiler-
Louisville Law Examiner, May, 1985 5
Penalty ... Ciose Enough For Government Work?
plate language" in his sentencing order
reminiscing about his World War II
experiences. Judge sentencing of this
sort, the Supreme Court says, is
constitutional. Spaziano v. Florida, 104
U.S. 3154 (1984). Florida judges have
done this at least 83 times. (Judge
Thomas M. Coker, Jr. sentenced 8 men
to die in 17 months.)
Men who haven't killed anyone have
been executed while the real killer
eagerly awaits parole. Doyle Skillern
was poisoned on January 16, 1985.
Charles Sanne shot a Texas drug agent
''six times while Skillern was in a nearby
car." Skillern was sentenced to death
and Sanne to life. Sanne "is being
considered for parole, and could be
released by June."
Intra-case unfairness is seen again in
Charles Brooks's death. Brooks, who
couldn't even get full federal habeas
corpus review, was killed despite an
affidavit from the prosecutor stating
that it was never determined who the
triggerman was: . Brooks or his co­defendant,
Woodrow Loudres. "It may
well be the state of Texas executed the
wrong man," the prosecutor said.
Perhaps the greatest chance of an
injustice was the January 9, 1985,
electrocution of Roosevelt Green. Very
clear evidence exists that not only was
Green not the triggerman but that he
was not even present when the murder
occurred. Testimony was introduced
that a co-defendant had confided to a
witness "that he had killed [a woman],
shooting her twice after ordering
[Green] to run an errand." Green v.
Georgia, 442 U.S. 95, 97 (1979). The co­defendant
stated Green "didn't know he
was going to shoot her." Green v. Zant,
738 F.2d 1529, 1534 (lith Cir. 1984),
cert. denied 105 S.Ct. 607 (1984).
Despite the importance of counsel's
abilities, many courts care little for
guaranteeing the 6th Amendment right.
Ernest Knighton was electrocuted on
October 30, 1984. His lawyer was an
overburdened public defender carrying a
caseload of hundreds of felonies who
spent little time preparing his case which
was tried 2 months after the crime. The
lawyer presented no evidence in
mitigation and gave a brief and
perfunctory closing argument. Despite
testimony by 4 expert witnesses that his
lawyer was ineffective, Knighton (a
black tried for the murder of a white
before an all white jury) didn't even
receive a full hearing on appeal in
federal court.
Johnny Taylor's case also illustrates
the new streamlined federal procedure
reserved solely for death penalty cases.
Taylor, another black from Louisiana,
was represented by a lawyer who pressed
the ludicrous argument in the guilt phase
that his client was innocent because the
police switched the fingerprints at the
scene. After a guilty verdict, Taylor's
lawyer again tried to argue the police
switched the fingerprints until the judge
told him that the issue had already been
decided. The lawyer then sat down. That
was it...until the appeal, where the same
argument was pressed ... with similar
results ... and on into federal court...with
similar results. Finally, another lawyer
took over and raised a claim of
ineffective assistance of counsel. Within
two days, Taylor had his review on this
issue from the federal district court,
through the 5th Circuit to the United
States Supreme Court. Despite stating
"that counsel's failure to adduce any
testimony or to make any
argument ... appears unusual," no
hearing was even granted. Taylor was
executed on schedule on February 29,
1984.
The most recent execution as of this
writing, John Young on March 20, is
another sad example. Young,
predictably black and poor, was
represented by a lawyer who was on
drugs at the time of the trial and "under
severe emotional strain and physically
exhausted" having "difficulties with a
lover." The lawyer was later disbarred.
Despite the trial lawyer's guilt-ridden
plea shouted from the audience in the
federal courtroom, no evidentiary
hearing was held on this issue.
It is shocking how close some come to
being spared - only to die because their
lawyers stumble or a judge switches a
vote. Robert Wayne Williams's
execution on December 13, 1983 carne
after a 6 to 5 vote by the en bane Fifth
Circuit in his first habeas action. In his
second habeas petition, the Supreme
Court, over 3 dissents on
proportionality, vacated a stay granted
by the Fifth Circuit. A crucial fourth
vote was lost as Justice Stevens
concurred "though not without
misgivings .. . " An argument by the
prosecutor was ''prejudicial to the
accused ... " Nevertheless, "competent
counsel failed to object.. .at the trial."
Accidents of geography also
determine who lives and dies. Dobbert
would have been spared had he
committed his heinous crime in
Kentucky and many other states. Timing
is all important. Wayne Ritter, who
repeatedly expressed a wish to die and
almost did, was recently granted a new
trial. His co-defendant, John Evans, is
dead.
This madness serves no law
enforcement purpose. Recently, Stephen
Morin volunteered for execution and
took with him "to his grave information
on murders, r~pes and abductions in
several states." It may even encourage
the likes of a Gilmore with a suicide/star
complex.
Lower courts struggle under the
necessary assumption that somehow all
of this makes sense. Faced with the same
argument as that which prevailed in
Ritter - the constitutionality of the
Alabama statute - the Alabama
Supreme Court rejected it. Noting that
Evans presented the same claim to the
U.S. Supreme Court, the Alabama
Court stated: "[T]he Supreme Court
would [not] have allowed the execution
to take place if it had had even the
slightest doubt whether Evan's challenge
to the sentencing procedure had some
merit." The Court must have some
doubt because certiorari was denied in
Ritter and granted in Ex Parte Baldwin,
456 So.2d 129 (Ala. 1984), cert. granted,
105 S.Ct. 589 (1984).
It probably didn't help that the
Hillside Stranglers received life
sentences shortly before the Court
decided whether the states must conduct
proportionality review to attempt to
eliminate some of this unfairness. Pulley
v. Harris, 104 S.Ct. 871 (1984), in
holding that there was no such
requirement, seems more of a sigh of
frustration than a major constitutional
decision. The opinion is largely devoted
to explaining away prior decisions
hailing comparative sentence review as
the essence of the "new" death penalty.
Kentucky's proportionality review is
thus far a shell game which pays lip
service to the statutory requirements.
K.R.S. 532.075. The Court merely adds
a string citation of prior capital appeals,
mostly pre-statute, which have nothing
in common with the case before them
except a murder. The same list is just
repeated reflexively from case to case.
See White v. Commonwealth, 671
S.W.2d 241, 247 (1984), cert. denied,
105 S.Ct. 363 (1984). Obviously,
nothing can be gained by comparing a
death sentence only with other death
sentences. No doubt to do otherwise is
to struggle with a problem for which no
solution, short of abolition, is readily
available. Perhaps it is best not to try to
make any sense of it at all.
Death Stress: Punishing Ourselves
Anyone who has been through a death
penalty trial will never forget it. These
excruciating human dramas take their
toll on more than just the person who
must stand trial for his life. We have
watched our colleagues in the defense
bar vow never to handle another death
penalty trial. More than one private
lawyer nearly bankrupted himself
representing an indigent capital
defendant. We can't find laywers willing
to subject themselves to the ordeal.
Public defenders, forced to do so, have
simply quit. Others flat out refuse.
There is a national crisis in finding men
and women to represent the condemned.
Perhaps, it will be argued, the clients
deserve it and their lawyers choose it.
While the former isn't always so and the
latter less and less true, what about the
other participants? In our experience,
many prosecutors find the experience
very troubling. Winning doesn't seem to
help. It isn't easy to stand before one's
fellow citizens and ask them to kill. Like
some defense lawyers, some prosecutors
refuse to participate at all. Nor are
judges spared. We have witnessed judges
agonize over the prospect of sentencing
someone to death. Even if the judge is
convinced of the need for an execution,
there is an emotional price.
A recent report of heart pains by a
deliberating capital trial juror reminds
us of the stress we put inexperienced lay
people under when we ask them to
decide a life and death question.
The woman's sudden illness was a
glimpse of what mental health
professionals believe may be a
simmering problem: Average
citizens are being subjected to
tremendous stress when they serve
on a jury that has to decide on the
death penalty. •••
Citizen-jurors in death penalty
cases may experience severe effects
of stress, including nightmares and
extreme anxiety, several mental
health professionals said. And
those effects may last long after
jury duty is finished.
Andry, "Death penalty cases
stressful duty," Cincinnati Post
at 1 (2/25/85).
In many ways, the participants in this
process feel some of the pain
experienced by the victim's family. Yet,
the deceased's loved ones presence in
court seems to aggravate their loss by
graphically forcing them to relive the
horror that has shattered their lives.
They are forced by the system to come
face to face with the slayer of their hopes
and dreams. Forced to do so in the worst
possible situation. No matter how much
remorse a capital defendant feels (and
many are overcome by it) they are
required by the system (their lawyers) to
deny guilt (sometimes in the face of clear
evidence) in order to save their own
necks. Nothing can infuriate the victim's
family more. The systeip seems
designed, in the most perverted way, to
insure that no resolution, no peace, no
acceptance is found by those whose real
needs we seem to overlook.
There are others, of course. The
defendant's family is similarly punished
- forced to sit and watch helplessly as
their child suffers a slow death. As the
process drags on we rope others in. The
taste is equally bitter at the end of the
line. "At night I don't always sleep."
Tiede, "Executioner Feels Strife,"
Frankfort State Journal (1/20/85).
Robert Johnson, author of a study of
1i fe on death row, is currently
''researching the effects of death work
on some of the guards in the killing
chambers.''
And at the end awaits the most cold­blooded,
"methodical and chilling
affair" known to man. That's why we
describe shocking murders as
"execution-style slayings." The
uncertain years on death row breathe life
into Camus' hackneyed quote
comparing the murderer's cruelty with
our own. "Such a monster is not
encountered in private life." Camus,
Reflections on the Guillotine (1960).
But, never mind about them, what crime
did the rest of us commit? ,
The Method
Politicians have a great fear of being
seen as ineffectual when faced with the
"regrettable" task of killing. Witness
Gilmore's taunts to the State of Utah
that they didn't have the nerve to carry
out the threat of execution. Mailer,
EXECUTIONER'S SONG (1979).
On the other hand, government can't
be seen as overly eager - it must be
done in a "professional" manner. (Of
course, this conjurs up the image of a
"hit" man for the mob.) Kentucky's
(Continued on page 6)
6 Louisville Law Examiner, May, 1985
'No Fair, Just, or Proper Way To Execute Anyone'
(Continued from page 5)
answer to the need for advance
planning? Advertise!
WANTED -Executioner. For the
electric chair for Kentucky State
Penitentiary. Only serious
applicants need apply ...
And 150 did, including one who "said
he could execute a convict as easily as he
could a dog." (He didn't get the job).
As state officials struggle to do well
that which shouldn't be done at all, the
entire ordeal takes on aspects of a
macabre ritual. Kentucky's executioner
will wear the traditional (but brand new)
black robe and hood. (We wonder where
they buy them). The old electric chair
has been "stripped of its black paint and
left naturally blond. 'I didn't care for
black,' explains [the Warden]. "Black
was fine 22 years ago. But society, the
way it is today- well, we thought we'd
try to brighten it up a bit." ·
The promise was that state killing
would be different in kind from the
perverted brutality of the condemned.
We are learning that killing is killing. It
isn't quick or clean or dignified. "[I]t
took a gruesome 10 minutes and three
I ,.900-volt jolts of electricity to
kill ... John Louis Evans III.'' Describing
Evans "charred, smoking body," an
Alabama prison spokesman said, it
"wasn't a pretty sight to
ee ... [e]verybody was looking forward
to a nice, little, tidy package deal, but it
was altogether different...'"
After the second jolt, Evans' lawyer
begged the officials to stop. Prison
Commissioner Smith "eyes welling"
communicated the message to Governor
Wallace. "His voice broke." Wallace
denied the request. "I seriously thought
they would have to bring in a gun and
shoot Evans in the chair."
After the first jolt, Alpha Otis
Stephens was still alive. "[W]itnesses
saw him struggle to breathe." The
doctors had to wait 6 minutes for his
body to cool. They then confirm(!d he
was alive. Stephens who "appeared
scared" as he was led into the execution
chamber had "tried to kill himself hours
earlier ... ''
The gas chamber hasn't fared well
either. Lawyer Dennis Balske watched
his client, Jimmy Lee Gray, slowly
strangle on lethal gas " ... moaning,
moaning, moaning ... over eight minutes
now .. .'" until prison officials forced
him to leave. Gray was still moving
when Balske left.
Even the latest technological advance
- state of the art killing - lethal
injection, like its predecessors, doesn't
fulfill its advertised promise. On March
13, it took an agonizing 40 minutes for a
nervous orderly to find a vein to insert a
needle into the arm of Stephen Morin
while he lay waiting to die. " 'I don't
think there is any fair, just or proper
way to execute anyone,' said [Texas]
Attorney General Jim Mattox." He's
right.
Brutalization of Society
Owensboro, Kentucky was the scene
of the last public execution in the United
States in 1936. The spectacle was a
disgrace. Raine Bethea was hung
"before a raucus crowd of
10,000 ... [T]he spectators had spent the
night before ... drinking and attending
hanging parties... 'Hawkers squeezed
their way through the crowd selling
popcorn and hot dogs. Telephone poles
and trees were festooned with
spectators... [T]he crowd grew
impatient...[After the hanging] eager
hands clawed at the black death
hood ... ' "The man who liked everyone,
Will Rogers, once said: "Anybody
whose pleasure is watching somebody
else die is about as little use to humanity
as the person being electrocuted.''
But that was a long time ago. Not the
"new" death penalty ... Right? Wrong!
Shortly before John Spinkelink was
electrocuted a disc jockey in Tallahassee
played the sound of bubbling oil on the
air. Afterwards, Jacksonville police
officers quickly sold out a supply of
T -shirts (" 1 down, 133 to go,''
"Raulerson, your [sic] next") to
"judges, legislators, doctors, lawyers"
and others. At Thomas Barefoot's
execution demonstrators "carried a
cardboard model of a hypodermic
needle and chanted, 'Hit me with your
best shot.' "
At Velma Barfield's execution a
crowd of death penalty boosters "egged
on the state. 'Hip, hip
hurrah ... K-1-L-L... burn, bitch,
burn ... " After J.D. Shaw's execution
the crowd became impatient while
waiting for the hearse to leave the
prison. They began chanting: "Where's
the beef?" Three weeks later, two
Jacksonville police officers wearing
"Crank up old sparky" and "Make my
day, Raulerson" t-shirts tried to attend
the execution of James Raulerson in
Florida to taunt him as he died. Police
officers cheered as the hearse removed
his body. The Ku Klux Klan
demonstrated in support of John
Young's electrocution.
Government's Death Machine:
Pay Now and Pay Later
Capital punishment is unbelievably
expensive, akin to the moribund Marble
Hill nuclear power plant - sucking up
huge amounts of criminal justice
resources with no payback. The real
expenses of the death penalty dwarf even
the most exaggerated costs for life-long
incarceration thrown about as a
justification for the death penalty. "The
actual out-of-pocket costs to keep a man
alive in any prison .. .is less than $5,000
per year." Other amounts one hears
include prison overhead - costs which
would be sustained in any event.
The New York State Defenders
Association estimates the cost
(prosecution, defense and court) of a
death penalty prosecution through trial,
appeal and petition for writ of certiorari
(excluding any post-conviction expense)
at $1,828,100 per case. Capital Losses:
The Price of the Death Penalty for New
York State (N.Y. State Defenders Assn.
1982). Experience indicates that the
estimates in Capital Losses are all too
real. "The California Office of the State
Public Defender reports ... the cost of a
death penalty appeal on the state level to
be in excess of $30,000 per case."
Capital Losses at 20. The Maryland
State Public Defender "estimates that
the average cost to defend a death
penalty case is $100,000 ... "
On March I, 1985, 222 people "lived"
on death row in Florida. Consider that
the Florida Supreme Court must hear
and deliberate on each one of these
cases. It is easy to understand why that
court has been forced to drastically
reduce other cases it hears. Obviously,
non-capital appeals contain issues of
prime importance to society. What do
we get in return for this sacrifice?
Things are so out of hand in Florida
that a separate prison is being planned
which will hold the condemned and the
execution chamber. Additionally, the
Florida Attorney General is actively
seeking funds from the legislature to
create a state-wide public defender
devoted exclusively to handling death
penalty cases. As public defenders we
applaud the concept of additional
funding. We see what death penalty
cases are doing to the already over­burdened
lawyers in our office.
However, we are chilled and frightened
by the spectre of entire governmental
institutions solely devoted to killing
people. What will the future bring?
Disrespect For The Law
Despite the dire predictions ot
"bloodbaths" and the best efforts of the
courts to speed things up, the reality is
that America probably won't kill one of
its citizens every day. Once again,
politicians have promised the taxpayer
more than they can deliver.
Unfortunately, the judiciary is left
holding the bag. Unless something is
done, cherished, ancient rights
belonging to all of us, such as the writ of
habeas corpus, will be thrown out in a
vain attempt to do something about the
"intolerable" backlog on death row.
Justice Powell and others have
denounced this "malfunctioning of our
system of justice." This frustration has
led Justice Rehnquist to suggest the
bizarre remedy of "promptly granting
certiorari and decid[ing] the merits of
every capital case ... in order to expedite
the administration of the death
penalty." Coleman v. Balkcom, cert.
denied, 451 U.S. 949 (1981) (Stevens, J.
concurring). The Justice's strategy
would be to totally foreclose federal
review in capital cases. Quoting
"Hanging Judge Parker" about the
"good ladies who carry flowers and
jellies to criminals" (i.e., death penalty
opponents), Justice Rehnquist
denounced the backlog as
"undermin[ing] the integrity of the
entire criminal justice system ... " 451
U.S. at 963 n.3, 960. Justice Powell had
a better idea. "Unless the courts ... move
effectively . .. the [state]
legislatures .. . should abolish the death
penalty."
One of the many ironies of capital
punishment is that the faster we execute
the condemned, the more likely it is we
send an innocent man (woman? child?)
to the chair. It can't seriously be argued
that we won't do it sooner or later (if we
haven't already).
You might recognize Isadore
Zimmerman who was erroneously
sentenced to death in 1938. But that was
the old days, right? Wrong! The names
of Dave Keaton (1971), Freddie Pitts
(1972), Wilbert Lee (1972), Christopher
Spicer (1973), Thomas Gladish (1974},
Richard Kline (1974}, Clarence Smith
(1974), Richard Greer (1974), Johnny
Ross (1975), (a 16 year old black kid),
Earl Charles (1975}, Jerry Banks (1975),
Larry Hicks (1978), Robert Henry
McDowell (1979), may not be familiar to
you. They are some of the American
citizens sentenced to death under "new"
death penalty statutes who were later
proven in court or admitted by the
prosecution to be innocent.
Here in Kentucky, State Rep. Bob
Heleringer defended a client against a
capital murder charge, only to have the
case dismissed when the real gunman
was arrested. Another Kentucky man
spent 10 months in jail for two murders
only to be released one week before his
death penalty trial was to start.
The execution of an innocent man wiU
provide the abolitionists with a powerful
argument. It is sure to encourage further
disrespect for the criminal justice
system_ Catch 22: Speed up the
executions ... but at your own risk ...
Welcome to the capital punishment
game. If you play, you lose.
Death With Dignity
"(A] death row inmate has an Eighth
Amendment right to die with dignity ... "
Unfortunately, if there is such a right, it
is not well regarded. Groseclose
denounced Tennessee's death row as so
bad "as to demean and degrade [the]
last days." Despite last years, not days,
under extreme stress, many of the
condemned manage to die with startling
dignity, peace and kindness to others.
There are too many for this phenomena
to be dismissed as a cheap publicity
stunt.
Ernest Knighton "began reciting the
23rd Psalm ... as he was strapped in he
repeated over and over 'I'm going home,
I'm going home, I'm going home to
heaven.' " Robert Sullivan "after
reciting a Psalm in tears and thanking
Pope John Paul II for trying to save his
life ... [said]: 'I hold malice to none. May
God bless us all.' " Carl Shriner:
"!...saw the light when I accepted Christ
years ago ... " J.C. Sha-,v, a former
military policeman, "told the families of
the 3 victims that he hoped his death
would bring them peace .. .'' Johri Evans
made a videotape for children telling
how he went wrong. Who are these
people we are killing? Are they as they
were 5 or 10 years earlier?
(Continued on page 7)
Louisville Law Examiner, May, 1985
Death Penalty:
A Sad Hoax On Us
(Continued from page 6)
Marat-Sade Revisited
The manner of death of some of the
condemned has not gone unnoticed. It is
strangely disquieting. When Robert
Willie swaggered and wore sunglasses
during his last interview, the headlines
blared: "Convicted killer dies
unrepentant while his victim's parents
watch." "A cocky and unrepentant
Robert Lee Willie ... " Friends who
disagree with us were quick to pojnt this
out, seemingly relieved that one of
"them" finally acted as a "convicted
murderer" should act: like some kind of
sub-human monster.
Buried beneath the headlines,
however, were more troubling events.
Actually, Willie's spiritual advisor, a
nun, stated that . he was remorseful.
Willie told the victim's parents: "Mr.
and Mrs. Harvey .. .I hope you get some
relief from my death." Mr. Harvey, on
the other hand, stated that watching
Willie die was very satisfying. "I'd
rathel)l. would be a lot slower.'' Harvey
and liis friends were laughing after the
execution. Asked if he were happy that it
was over, he responded, 'You want to
dance?' " The Harveys "celebrated by
mixing drinks outside the prison gates."
They had their 14 year old daughter with
them who said: "It was the best
Christmas I had in a long time ... "
One can understand the pain of Mr.
Harvey whose step-daughter was
brutally raped and murdered. However,
the death penalty holds out a false hope
of peace to the victim's family.
Although we haven't experienced it, we
cannot believe that the pain is any less
for them the next day. Apparently, it
didn't lessen Mr. Harvey's grief as he
chose to attend the next execution in
Louisiana - as if he was still searching
for relief. Instead, killing our killers
only seems to bring us to their level. Like
some surreal play, the good become evil,
the evil, good. That is confusion.
Trivialization of Death
Despite the gruesome displays and
high emotions surrounding executions,
the new death penalty is teaching us -
and our children - a different lesson­one
perhaps forgotten by some of us: It
is easy to kill, at least when the
government does it. No big deal. It's
been done for thousands of years. The
only thing unusual is that we stopped for
a while.
We have moved from Norman Mailer
epics, to page 8, section B, clippings, to
executions which go unreported. It is no
longer news (big or otherwise) that our
government kills some of our fellow
citizens. Oh well, another execution.
Ho, hum.
Jason DeParle, a staff writer for the
Times Picayune, described the execution
of an inmate he had interviewed and
liked:
Martin's death was cool and
efficient, wrapped in ritual and
surrounded by bureaucracy. He
wasn't killed so much as
processed.
I felt less anxiety in watching a
man die than I do at watching a flu
shot administered. I felt as though
I could watch 10 executions in a
row while eating a pizza.
Somehow, I expected the taking of
a life to be something more
awesome. What I saw seemed to
trivialize not only his life, but life
in general.
"Eyewitness to an execution,"
New Orleans Times Picayune at
A9 (l/7 /85).
Difficult Questions Ahead
It seemed so simple at first. "Guided
discretion" is such a catchy phrase.
Then the legal questions began to arise
by the hundreds, then thousands. The
discretionary question of whether a
convicted murderer is to live or die can
turn on subtleties of procedure,
instructions, evidence, personalities,
atmosphere ... etc. We are writing on a
clean slate, creating capital litigation
jurisprudence from whole cloth.
Appellate courts seem to trip over
themselves as each new case presents an
unanticipated wrinkle. See, e.g., the
''legal monstrosity'' complained of in
Gall v. Commonwealth, 607 S.W.2d 97,
Ill (Ky, 1980), overruled, Payne v.
Commonwealth, 623 S.W.2d 867, 870
(Ky. 1981) [consequences of verdict].
The questions are so novel even the
former Chief Justice could only "guess"
at the answers. Palmore, Kentucky
Instructions to Juries, §2.08 at 10-ll
(Supp. 1979).
Society is faced with the horrible
legal/political/moral questions of
whether to execute children [Eddings v.
Oklahoma, 455 U.S. 104 (1982); Ice v.
Commonwealth, 667 S. W .2d 671 (Ky.
1984), cert. denied], grandmothers
[Barfield v. Harris, 719 F.2d 58 (4th Cir.
1983), cert. denied, 104 S.Ct. ·2401
(1984); Barfield v. Woodard, 748 F.2d
844 (4th Cir. 1984), stay denied, 105
S.Ct. 278 (1984)], paraplegics, the
retarded, the deformed, victims of child
abuse, the presently insane [Ford v.
Wainwright, 752 F.2d 526 (11th Cir.
1985); "God told me to act crazy
because you all been acting crazy to
me." Newsweek at 69 (6/ll/84)] and
whether to televise it.
The U.S. Supreme Court will soon
grapple with the disturbing issue of how
we can exclude, in an otherwise
democratic society, large numbers of
citizens with scruples against the death
. penalty (disproportionally young, black
and female) from jury duty in death
penalty cases. Grigsby v. Maybry, __
F .2d __ (8th Cir. 1985). Capital case
juries are after all, supposed to be a
"significant and reliable objective index
of contemporary values ... " "Death­qualifications"
is unique in that it is the
only situation in America where citizens
are purged from the jury due to
political, philosophical or moral beliefs.
The Supreme Court is certain to take
Grigsby and decide the constitutionality
of creating "hanging juries", by letting
all the "bleeding hearts go home."
Another major case on the horizon
for next year is McCiesky v. Kemp, 735
F .2d 877 (lith Cir. 1985) (en bane.). The
Supreme Court has managed to avoid a
detailed examination of whether the
"new" death penalty "might undermine
the confidence we expressed in
Gregg... that the [new] capital
sentencing system(s), as we understood
[them] then, would avoid the arbitrary
and capricious imposition of the death
penalty ... ''
The lower federal courts have placed
an extremely high burden of proof on
the condemned - requiring evidence
that only unconstitutional influences
(i.e. race) produced a death verdict. This
burden seemed insurmountable. Then,
along came Dr. David C. Baldus who
conducted "far and away the most
complete and thorough analysis of
sentencing" ever carried out. He
accounted for some 230 significant
variables and concluded that when a
Georgia defendant is black and the
victim is white there is a "6 percent
greater chance" the defendant will
receive the death penalty. When cases of
"mid-range" aggravation are examined,
there is a 20 percent greater chance -
due solely to race. The lith Circuit's
(9-3) answer? Close enough for govern­ment
work.
The lurching, inefficient and
uncontrolled machinery of government
by violence has been switched on by our
politicians. It gains momentum every
day. It will crush many in its path -and
not only the condemned. But in little
degree is the casualty list of murderers a
rational one. In no sense is it fair. Some
of the "worst" will be executed. Some
of the "worst" won't. Many far less
"deserving" will be. A few who don't
deserve it at all will. The capital
punishment picture will be a crazy-quilt,
patchwork design - a far cry from the
artist's concept. To the extent the death
penalty was conceived as a criminal
justice tool, it will be completely
ineffective. In the end it will
embarrass ... worse yet, bloody us all.
Death as a punishment is a sad hoax
we play on ourselves.
We wish to thank David Bruck, a
South Carolina lawyer and author who
works tirelessly on behalf of the less
fortunate in society - including those
on death row who are victims of their
own and society's violence. David has
shared many of these thoughts with us.
STLA Brings
Perlman to
U of L
By Jon Hardy
7
The Student Trial Lawyers
Association (STLA) recently sponsored
an appearance by Peter Perlman on trial
techniques and current issues. The
Lexington plaintiff's attorney is the new
president-elect of the American Trial
Lawyers Association (ATLA).
Perlman achieved notoriety when he
obtained a $2.1 million verdict in an
action brought under Kentucky's
Products Liability Act. The unusually
large award was later overturned by the
Kentucky Court of Appeals in an
unpublished decision.
Perlman identified the bringing of
"frivolous lawsuits" as a current area of
major controversy. Although claims are
sometimes not well-founded, Perlman
pointed out that major changes in the
law have been accomplished by bringing
lawsuits once considered frivolous. For
example, rights of action against used
car dealers for setting back mileage are
now recognized under the Fair Credit
Reporting Act. The Dalkon Shield cases
have resulted in their manufacturer,
A.H. Robbins, setting up a $600 million
fund to compensate injured parties.
Only through bringing suits, Perlman
said, were these injustices recognized
and the law changed.
Perlman was introduced by Kathy
Hayden and welcomed by Danny Rose,
the outgoing president and vice­president
of the student chapter. The
newly elected president and vice­president
of STLA are Cathy Brown and
Mickey Lee, respectively, who will
continue to sponsor similar events.
Hayden said the chapter was particularly
grateful to Louisville attorney Nick King
for assistance he has given the students
this year.
Violence Unit
To Prosecute
Family Abuse
(Continued from page 1)
its operation and success. These
advocates will establish contact and
rapport with crime victims and witnesses
to ensure that they never feel "lost" or
neglected by the system. They will also
establish a referral network for victims
and family members. Many, many
victims either fail to initiate or drop
prosecutions because they do not receive
the necessary support from the system.
Victims and witnesses become
intimidated and frustrated by a system
which they should be able to feel will
adequately serve and protect their
interests.
A critical factor in the success of the
unit will be a program for public
awareness and education. Victims and
witnesses must be informed that there is
a special unit ready and willing to take
their case to the ends of justice.
THE STUDENT BAR ASSOCIATION'S ANNUAL
BALL ON
THE BELLE
Wednesday,
May 8, 1985
Board 7:30p.m.;
Cruise: 8:00 p.m. - 11 :00 p.m.
LIVE MUSIC BY DADDY'S CAR
$5.00 per person
All Alumni and friends of the University of
Louisville School of Law are invited to attend!
Call 588-6398 for tickets.
THE STEAMER
IILLiorLOUISYILLI
New Faculty Member Hired
To Teach At Law School
The appointment of Renaldo (Rick)
Hicks to a Law School faculty position
for the upcoming semester has
completed a long search during which
the Faculty Recruitment Committee
examined a wide range of applicants.
"His background and research
interest (in the Vietnam Syndrome as a
defense to certain crimes) may bring a
different perspective to the Law
School," Prof. AI Quick said.
Hicks will be the second black on the
full-time faculty at the Law School.
Quick said he rates experience in
practice or a legal clinic as very
important.
Louisville Law t:xaminer
School or Law
University or Louisville
Louisville, Kentucky 40292
"A law professor must have some sort
of contact with the outside world," he
said. "You have to be able to explain the
difference between legal ideals and a
real world setting."
Outside experience, according to
Quick, gives a faculty member more
confidence in their subject area. This, in
turn, enhances their credibility with
students.
Hicks was hired after he and other top
applicants came to U of L and met with
faculty and students . The faculty then
made the final decision on his hiring.
-
John M. Harlan Louis D. Brandeis , ·. tfii . -
~·
Louisville~-·-
Law Examiner AMERICAN BAR ASSOCIATION A WARD FOR EXCELLENCE, 1984
Volume 10
The 'New' Death
Penalty: Close
Enough For
Government Work?
.••.•. Page 4
Attorneys Franklin
And King Enjoy Their
Law School Teaching
Experiences
...•.. Page 1
Commonwealth's
Attorney Starts
Unit To Prosecute
Domestic Violence
•...•. Page 1
Night Students Ask
For a Few Changes
...•.. Page 3
May, 1985 Number6
Courier-Journal photo