Thursday September 20, 2012
In a strongly worded, unanimous decision released today, the Kentucky Supreme Court ruled on the question by Jefferson County Attorney Mike O’Connell on the practice of criminal defense attorneys contacting judges to set aside arrest warrants without notice to the Commonwealth.
“Does Kentucky law authorize an ex parte [one side only] motion by a criminal defendant to vacate or set aside a warrant for his or her arrest with no notice or opportunity for the Commonwealth to be heard?
The answer is an unequivocal no.”
“Today’s ruling is a great step forward in safety for victims, law enforcement, and the public,” said O’Connell. “It means the people’s voice will be heard in what has been one-sided conversations, contrary to the foundation of the law.”
The Court said “Both sides apparently agree that such ex parte communication by criminal defense lawyers with judges, after warrants have been issued, is a common practice in the Jefferson District Court.”
“We need to go no further to deplore this practice that Supreme Court Rule 4.300, Canon 3B(7), which prohibits ex parte contacts in these circumstances.”
In Commonwealth v. Michael L. Wilson, an arrest warrant was issued by a Jefferson District Court judge in a Domestic Violence assault case for the defendant. The next day, the defendant’s attorney made an ex parte request to a different Jefferson County District Court Judge to withdraw the arrest warrant and issue a summons instead, claiming the victim had recanted.
The ruling states, “We fail to find any persuasive authority for the right of a defendant to approach a judge ex parte in order to have an arrest warrant withdrawn.”
The Supreme Court ruling continues: “The prosecutor was locked out from the opportunity to show that, in spite of the recantation of the victim, there was other probative and persuasive evidence indicating that an assault had taken place. A judge making decisions without this information may very well place the victim, as well as the public, at risk.
“We forbid it.”
To read the complete ruling, click here