Man Convicted Of Murder After Police Chase Left Two Kentucky Teens Dead Wednesday, Oct 30 2019 

A jury in Hardin County this week convicted a man of two counts of murder and recommended he serve life in prison for his role in a crash last year that killed two teenagers.

Shawn Welsh was being chased by three police agencies in October 2018 when he sped a stolen Chevrolet pick-up truck through a red light and collided with a Honda Accord being driven by Jacob Barber.

Barber, 18, and Katarina Peeters, 17, were killed in the crash. Two other teenage passengers in the car were seriously injured, but survived.

“We got justice for our kids,” said Barber’s mother, Sharon Combs, after the verdict. She attended each day of the six-day trial, and testified.

“I knew it was going to rip my heart out,” she said. “But I got to tell the jury about Jacob and what a great kid he was.”

KyCIR examined the pursuit in a report last year and found discrepancies in the police narrative about the circumstances of the pursuit. And policing experts criticized law enforcement for keeping with the chase until its deadly end.

The teens had just left a school-sponsored Halloween event and were headed for ice cream, Combs said. The crash occurred at the intersection of US-31 and Battle Training Rd. in Radcliff, when their path crossed the police chase of Welsh’s truck.

The jury deliberated for less than an hour on Monday before returning the guilty verdicts, according to a report from the Elizabethtown News-Enterprise. Tuesday’s deliberations lasted nearly three hours, according to the newspaper. In all, the jury recommended four life sentences — one for each murder charge and two for additional assault charges.

The jury also recommend Welsh, 37, serve 43 additional years in prison for receiving stolen property, fleeing police, and drug possession.

Formal sentencing is set for December 10.

Adam Sanders, Welsh’s attorney, said an appeal is likely.

At trial, Combs tried to avoid looking at Welsh. Doing so, she said, was difficult.

He read a statement, apologizing to the victims and their families. Combs said it was “too little, too late.”

“He made his choices,” she said. “Right now, I have no forgiveness for him.”

Combs and the families of the three other teens involved in the crash filed individual lawsuits within the past two months against Welsh and the agencies that pursued him, including the Meade County Sheriff, Radcliff Police Department, and Vine Grove Police Department.

They each argue that the officers “owed a duty to the public to use care and refrain from reckless, willful, or wanton conduct when initiating and/or continuing a pursuit,” according to online court records.

But the officers failed to do so, the families argue, because they did not stop the chase “when it became clear that the risks created by initiating and continuing the pursuit outweighed the need for immediate apprehension of [Welsh].”

The chase began around 8 p.m. on October 20, 2018. Meade County Sheriff’s Deputy Brandon Casey saw Welsh turn off the highway down a dead-end road just north of Flaherty, Ky., and followed to investigate.

He pulled his cruiser onto the gravel road, and as he approached the truck, Welsh sped away.

The chase wound down rural roads and through neighborhoods, covering more than 20 miles in about 17 minutes. At times, speeds topped 100 mph, and Radcliff and Vine Grove police joined in.

Officers were still giving chase when the truck collided with the car, killing Barber and Peeters. It was only then that police realized Welsh was driving a stolen truck and in possession of methamphetamine.

According to Meade County Sheriff Department policy, pursuits “shall be for a violent felony offense, or use of force likely to cause death or serious physical injury, or threatened use of such force.”

Casey wrote in his arrest report that, as he approached the truck on the dead-end road, Welsh accelerated towards him, “causing this officer to swerve off the roadway to avoid a head-on collision.” The deputy never mentioned that to dispatchers in audio obtained from the pursuit.

But then-Meade County Sheriff William Kerrick, in an interview last year with the Kentucky Center for Investigative Reporting, said that act was “like pointing a gun” at the deputy.

Kerrick, who lost his re-election bid during the 2018 Republican primary, defended Casey’s decision to initiate the pursuit and stick with it until it’s fatal end.

But experts questioned the chase.

Tom Gleason, who works for PursuitSAFETY, a national group that advocates for pursuit policy reform, told KyCIR last year that pursuits are high-stress, and risk factors are heightened when high speed chases travel through intersections, railroad tracks and tight rural roads.

Gleason said the chase should have been called off.

Walter Signorelli, an adjunct professor and lecturer at John Jay College of Criminal Justice, said in an interview last year that even if Welsh did attempt to ram the truck into Casey, it didn’t necessitate a high-speed chase.

Combs now wants to advocate for changing how police conduct pursuits in Kentucky. She wants limits for when chases can happen and for how long they last. They’re too dangerous, she said, and too deadly.

“No other parent should have to go through this,” she said. “I just want to stop it from happening again.”

More than a dozen families complain pool company owner failed them Tuesday, Oct 29 2019 

It all started with a tip on our WHAS11 Facebook page.

        

New Court Ruling Could Make Expungement Unaffordable For Some Kentuckians Friday, Oct 25 2019 

People who can’t afford to pay expungement fees might be prevented from clearing their criminal record under a recent Kentucky court ruling.

The Kentucky Court of Appeals earlier this month upheld a Jefferson Circuit Court ruling in which a Louisville man who qualified as indigent was denied a waiver for the fee required to expunge a felony charge from his criminal record.

Attorneys, legislators, and expungement advocates worry the ruling will stifle access to expungements and undercut years of criminal justice reform efforts to return basic rights to thousands of people whose convictions have long passed.

“It is an injustice,” said Sadiqa N. Reynolds, president and CEO of the Louisville Urban League.

New legislation this year made expungement accessible to more Kentuckians. Legislators this year also expanded the scope of the state’s expungement law, making dozens of Class D felonies expungeable. But they stopped short of allowing expungements for convictions of certain drug trafficking crimes, DUI, assault, or a sex offense. 

The cost to expunge a felony is now nearly $300 — reduced by lawmakers from $500. Misdemeanors cost $100 per offense.

These efforts ignited a groundswell of support networks aimed at helping people clean their criminal records — philanthropists have pledged money and nonprofits are hosting clinics to guide people through the process.

In Louisville, expungements are in high demand.

And more than 400 people are signed up to attend an expungement clinic run by the Louisville Urban League on Saturday at Roosevelt-Perry Elementary School. Reynolds, a leading advocate for expungement, said the ruling amounts to socio-economic discrimination.

“We want people to be able to re-enter society,” she said in an interview this week. “We want them to be able to engage with society.”

And it’s not uncommon for low-income residents to be granted waivers for expungement-related fees, according to attorneys who assist residents in clearing their criminal records.

Since 2018, the Legal Aid Society in Louisville has assisted more than 1,000 people seeking expungements, according to Stewart Pope, the advocacy director the the Legal Aid Society in Louisville. About 90 percent of those people were granted a fee waiver by a judge, he said.

For many, Pope said the fees are just too much. And without the waiver, they simply wouldn’t be able to get the expungement. 

“There literally is no extra money,” he said. “The point of expungement is to get rid of these charges so that somebody can get a better job and hopefully get out of poverty.”

A Right Or A Privilege?

Felony disenfranchisement is pervasive in Kentucky: More than 312,000 Kentuckians are prevented from voting due to past felony convictions, according to a report published earlier this year by the League of Women Voters of Kentucky.

Past convictions can keep people from getting good jobs and they block thousands from exercising basic constitutional rights, like voting or owning a gun. Kentucky and Iowa are the only states to permanently ban felons from voting. More than 1 in 4 African Americans in Kentucky are disenfranchised, the highest rate in the nation.

Clearing a record of a felony allows people to experience life in a way they cannot when they’re burdened by ever-present stain of past convictions, Pope said — they can vote, they can attend field trips with their children, they can seek out jobs without being forced to disclose their past transgressions.

But mandating fees could prove to be a barrier for some. 

In December 2018, Jefferson Circuit Judge Audra Eckerle denied Frederick Jones’s request to waive the then-$500 fee to expunge a felony theft charge he served prison time for in 1998. Jones declined to be interviewed.

Eckerle said that Jones, who reported earning less than $950 a month, qualifies for such a waiver. But she disagreed that the fees related to expungement are waivable. Eckerle said expungement is optional and the costs are not unwillingly imposed on someone.

Moreover, legislators who wrote the law did not specifically say the fee could be waived, Eckerle wrote in her opinion.

For this, she said Jones had to pay up if he wanted to rid the conviction from his record.

“Indeed, [Jones] has already had 20 years to amass the $500 fee,” she wrote. 

The Kentucky Court of Appeals unanimously agreed with Eckerle. 

Kentucky law allows judges to grant waivers for residents who can prove they lack the resources needed to foot the bills associated with appealing, filing, or defending “any action” in court. 

But in an opinion issued Oct. 11, the Court of Appeals judges ruled that expungement is different because it’s not a right, but a privilege.

“A privilege the General Assembly has no obligation to provide at all, and which it may therefore provide subject to conditions that our courts are not at liberty to ignore,” wrote Judge Joy A. Kramer in the opinion issued earlier this month.

The judges likened an expungement to a bankruptcy, in that there is no constitutional right to access a bankruptcy. Instead, the opinion said, it’s a matter of “legislative grace.” 

Kentucky Attorney General Andy Beshear filed a one-paragraph brief in the appeal, according to the Court of Appeals opinion, which ”stated in essence that he did not have a dog in this fight.”

Asked to explain his position on the case and if he supports fee waivers for expungements, Beshear’s spokesperson Crystal Staley said in a statement that the statute passed by the legislature mandated a fee for all expungements. 

“The Court of Appeals enforced the statute as written,” Staley said. “Attorney General Beshear believes that through criminal justice reforms to state law, expungements should be affordable for non-violent convictions that may currently be expunged under the law.” 

Beshear is the Democratic candidate for governor opposing Gov. Matt Bevin, who signed into law this year the expansion to expungement rights. Bevin’s spokesperson did not reply to a request for comment on the case.

Reynolds of the Louisville Urban League said support for expungement crosses party lines. One reason for that, she said, is because when people can clear their criminal record they can open themselves up for better job prospects. And hampering people’s ability to do that, she said, would be akin to the state “shooting itself in the foot.”

She’s hopeful the legislature or the Kentucky Supreme Court will clear up the confusion.

“I don’t care which body deals with it, it just needs to be dealt with,” she said.

Review Likely

The state’s highest court will have the chance to hear the case, said Cassie Chambers Armstrong, an attorney with Kaplan Johnson Abate and Bird who represented Jones on his appeal. (Armstrong’s firm has represented KyCIR in recent litigation.) 

“We’re talking about a law that affects so many Kentuckians in such a fundamental way, we’re talking about things like jobs and housing, and public benefits and the right to vote,” she said in an interview this week.

Armstrong said she intends to ask the Kentucky Supreme Court to review the case.

Karen Faulkner, a criminal defense attorney in Louisville, has guided hundreds of clients through the expungement process, and said many are granted waivers from associated fees. 

She worries that the Court of Appeals ruling will create a class-divide in expungement access — and the poor will be on the losing side.

“What we are looking at with this ruling is a circumstance where those people who have money are able to get expungements and those who are poor are not,” Faulkner said. “And I hope that the Supreme Court looks at the constitutional due process issues and overturns the opinion.”

Legislators who sponsored the recent expungement bill said this debate is an unintended consequence of their legislation. 

Sen. Jimmy Higdon, a Republican from Lebanon, sponsored the bill in the most recent General Assembly that widened the scope of felonies considered expungeable, and reduced the filing fee to $250 from $500. Higdon said he always assumed judges would waive the fee for those who can’t afford to pay it.

But Judge Kramer, writing for the Court of Appeals, said “legislative intent is expressed by omission as well as by inclusion.” Higdon’s bill described the fee as mandatory and failed to state fees could be waived, the court ruled.

Higdon said if the Court of Appeals ruling stands, he’s certain legislators will work to “correct what was misinterpreted in my legislation.”

“It’s common practice in Kentucky that if a defendant cannot pay a fee, a judge has a discretion to waive it,” he said. “If I wanted to block them from getting a fee waived, I would have put wording in there to block it.”

Rep. Ed Massey, a Republican from Hebron, sponsored the bill in the House of Representatives. In an interview this week, he said fees should not inhibit anyone from getting an expungement and the legislature must be clearer regarding waivers for expungements.

“The courts should absolutely be able to grant a waiver,” he said. “Nothing would prevent us from revisiting the expungement bill and considering that as a legislative action.”

Florida Fired Him. Now, He’s U of L’s Title IX Coordinator Wednesday, Oct 16 2019 

In April, David Parrott was fired from his job as the vice president of student affairs at the University of Florida following an investigation into misuse of funds.

By September, he was on the job at the University of Louisville as its interim Title IX and Americans with Disabilities Act (ADA) coordinator.

In that role, Parrott is responsible for handling investigations and discipline related to on-campus sexual assaults, investigating complaints of gender discrimination and ensuring compliance with the ADA.

Parrott is earning $50.89 an hour, or nearly $100,000 a year, in the interim role that is expected to run through December 20, 2019. The position does not include benefits, but does come with on-campus housing in a residence hall.

U of L spokesperson John Karman said the university knew Parrott had been fired at his previous job. They conducted an extensive background check, and he received “glowing reviews in reference checks with several of his previous university employers,” Karman said.

When the University of Louisville’s dean of students offered Parrott the job, he specified in the offer letter that Parrott will be “dismissed immediately” if any additional information emerges about misconduct during his time at the University of Florida.

“I have a 25+ year unblemished career of integrity and good judgement while assuming increasing responsibilities … at tier 1 public universities,” Parrott said in an email to KyCIR. “I expect to continue that record.”

Parrott held the top job in the Division of Student Affairs at the University of Florida since 2016, earning $300,000 a year. He was fired, and the associate vice president for student affairs resigned, three months after the university opened an internal investigation into the misuse of public money, according to the Gainesville Sun.

Parrott told KyCIR he was given the choice between resigning and being “non-renewed.” He said he took that option because it came with a three-month buyout.

The University of Florida has not yet responded to KyCIR’s request for the investigative report. University of Florida spokesperson Steve Orlando said he could not comment on the investigation or what it found, due to ongoing litigation, but he confirmed Parrott’s firing.

According to the Gainesville Sun, a whistleblower alleged that two senior Student Affairs employees misused $3 million for two construction projects. It also claimed the university was charging students more for incoming student orientation than allowed under state law.

In a statement, Orlando told the newspaper the investigation found no misuse of state funds.

“It did find evidence of improper financial administration within Student Affairs, which resulted in the leadership changes,” Orlando told the newspaper.

Parrott was named as a defendant in a class-action lawsuit filed in September on behalf of current and former students about the orientation costs. The lawsuit alleges the overcharging resulted in millions of dollars of “unlawfully acquired funds” for the University of Florida.

In an email, Parrott said that the agreements for the two construction projects were in place before he came to the university. He said he could not comment on the rest of the investigation due to the pending litigation.

But he said, ultimately, he was responsible for the actions of all the departments that reported to him and “their associated decision-making processes.”

Parrott said his termination shouldn’t reflect on his suitability for the job he currently holds. He said he has extensive experience building and consulting on university Title IX programs, and has supervised disability resource offices at three universities.

Before University of Florida, Parrott worked in student affairs at Texas A&M, Western Michigan University and Western Kentucky University. He received his undergraduate and masters degrees from WKU, and his doctorate from U of L.

U of L advertised the interim position after the previous Title IX/ADA coordinator, Brian Bigelow, resigned this summer.

Bigelow had also been responsible for risk management associated with minors on campus.

His salary was $137,000 a year until May, when the university reorganized Bigelow’s position and moved responsibility for minors on campus to a separate role. He was offered a reduced salary of $102,000 a year, or a layoff, according to university records.

Bigelow accepted the job change and salary reduction, according to records provided by the University, but later resigned. Bigelow didn’t respond to requests for comment.

Karman said the university posted an interim position so they could fill it much faster than it would take to do a permanent search. The search to fill the permanent job is underway, and Karman said the university expects to have someone in the job by January.

Parrott said in his email to KyCIR that he has applied for the permanent position.

Reach Eleanor Klibanoff at (502) 814.6544 or eklibanoff@kycir.org.

After Rare Enforcement Action, Fixes Underway At Problem Kentucky Dam Monday, Oct 14 2019 

State inspectors have watched the Loch Mary Reservoir Dam in Western Kentucky deteriorate for at least a decade. But it wasn’t until this spring that the state wielded its enforcement power and required the city get to work, or risk penalties.

Now, the city of Earlington in Hopkins County has begun taking steps to fix the dam. A KyCIR investigation published in August revealed that the Loch Mary was among dozens of dams in Kentucky without disaster plans as recommended by the Federal Emergency Management Administration even though the dams were in bad condition and would threaten lives or property if they breached.

Last year, the state’s Division of Water issued a violation to Earlington. Two follow-up inspections showed their concerns weren’t addressed despite deadlines. The state then told city officials they must meet with dam safety staff to make plans to fix the dam.

Ultimately, if Earlington were to continue disregarding state concerns, the state would take the city to court.

But city officials met with the state this month.

Earlington Mayor Philip Hunt said the city has hired an engineer, and is still figuring out how to fix the dam, how much it will cost and how the city will pay for it. The city is also working on an emergency action plan, Hunt said.

Hunt became mayor last November, and has served as a council member in the past. Hunt told KyCIR he doesn’t know yet how much it will cost or when the work will be done.

“In a small city like Earlington we have an extremely small budget to work with,” Hunt said. “I know that they’ve done what they could in the past, as far as the budget would allow them.”

Enforcement data show the Division of Water rarely issues violations or threatens dam owners with court action. While there are about 80 high hazard-dams in poor or worse condition, and many of them struggle with recurring problems, inspectors have delivered just 56 violations in a 10-year span.

High hazard dams could kill people or damage infrastructure if they broke.

State inspectors say the Loch Mary could overtop during extremely heavy rainfall. Severe cracks and spalling scar the spillway. Animals have bored holes into the structure and unruly foliage further threatens to degrade the dam even more.

Carey Johnson, assistant director for the Kentucky Division of Water, acknowledged the Loch Mary dam’s problems may not have grown so out of control and so expensive to fix had action been taken sooner.

“Over time, issues tend to worsen,” Johnson said. “The sooner the issues on dams are identified and addressed, the better it is not only for the dam, but generally the more cost effective it is for the dam owner. Those costs can compound over time as these aspects of the dam deteriorate.”

Inspectors issue violations after documenting a pattern of non-compliance by the dam owners, Johnson said, and formal enforcement is treated as a last resort. He wasn’t certain why the state didn’t take formal action against Earlington faster, but said it was possible that the city was showing some effort to maintain the dam, which would have been enough to stave off a violation for a while.

At least 11 dams were rated poor during three consecutive inspections or more, but received no violations, data show.

Johnson said there’s a good reason for that: Inspectors would rather work with dam owners than levy fines the owner might not be able to afford. They generally won’t issue formal violations if dam owners show they are trying to address concerns, unless there is an immediate threat to human health or lives.

He said they also understand that the most common shortcoming is the most difficult to address: a dam that wouldn’t hold enough water during a catastrophic rainstorm.

Of the 80 high-hazard dams rated poor or unsatisfactory across the state, records show at least 47 of them received that ranking at least partially because they wouldn’t hold enough rain during a catastrophic storm. Fixing that issue often requires major renovation.

But climate change and aging structures make it more pressing to ensure a dam won’t breach under extreme rainfall.

“The risk of failure keeps going up,” said Colette Easter, a civil engineer in Louisville.

And the cost will go up too.

“If you don’t have the capital dollars today to meet the standards of today, where are you going to be in 10 years if the standard goes up?” Easter said.

But Easter, who assessed Kentucky’s dam safety program for an analysis by the American Society of Civil Engineers, said the state’s philosophy on postponing violations and enforcement is a good one. Dam owners’ money is better used saving up to fix the big problems they are encountering than to pay fines, she said.

In western Kentucky, a dam owned by the Marshall County Conservation District has not received violations even though it’s out of compliance with state requirements. Vicki Boatright, administrative secretary of the Marshall County Conservation District, says upgrades to comply with rules for catastrophic rainstorms will cost about $3.5 million.

The district didn’t have to worry about that particular criteria until about 15 years ago, when two mobile homes popped up downstream from the dam thus putting human lives at risk if the dam were to break.

Dam safety experts say this is a fairly common predicament for dam owners, as they have little to no control if someone builds downstream.

“Realtors will try to sell these properties as lakefront property, when that’s not at all the purpose of the low lying areas on the downstream side of the levee,” said Boatright. “If there were to be a catastrophic event that whole area would be covered in water. It’s not a good place to put in a house.”

Inspectors have rated the dam poor since at least 2014. It has overtopped in the past, and inspectors noted they’re not even sure if the valve to draw the water level down to prevent overtopping during rainstorms is working. It isn’t, according to Boatright.

But, state inspectors noted this year that has made substantial improvements on maintenance. They’ve fixed what they could afford, and are still trying to figure out the rest.

Johnson of the state Division of Water said more funding opportunities for dam owners will be available in 2021 through a federal pre-disaster program. His team is also studying whether they can use abandoned mine land funds for dam fixes. But his team does not proactively coach dam owners about grants or loans.

“That is actually a good idea,” Johnson said.

Boatright said the state has never talked to her district staff about funding mechanisms, and she doubts there is much help available. That $3.5 million number is daunting.

“That’s just totally not even feasible for our conservation district; it’s not even a reasonable thought,” Boatright said.

It’s too soon to know what the price tag might be at the Loch Mary dam, which has structural integrity issues and maintenance problems to correct.

Residents who live downstream worry about the dam failing.

“We could lose everything including our houses, our lives,” 70-year-old Annette Rudolph said last week. “You worry about your house, but you worry about your life more than anything. Because you might not make it out.”

When she learned the mayor has hired an engineer and started working toward fixing the dam, Rudolph said she’ll believe the city is going to fix the dam when she sees it.

She said she’s been told for years that something will be done: she’s personally asked every mayor the city’s had about the dam and gone to city council meetings to stay informed.

“I just stopped going,” she said. “Because you hear the same things, over and over and over again.”

Reach reporter Caitlin McGlade at (502) 814.6541 or cmcglade@kycir.org.

Silky Clark sentenced to 21 years in federal court Monday, Oct 7 2019 

He pleaded guilty to the production of child porn and trafficking a minor and was sentenced by U.S. District Judge David Hale on Monday.

        

Better Business Bureau warns of reshipping scams Sunday, Sep 29 2019 

Victims of this scam say it’s easy to fall for because it sounds too good to be true, earning extra cash reshipping products from the comfort of home.

        

‘Gambling with fire’: JCPS cited for 150 fire inspection violations in 2019 Wednesday, Sep 25 2019 

Violations like "chemicals stored haphazardly," "blocked fire extinguishers" and missed fire drills gave 12 JCPS schools a failed 2019 inspection report.

        

Conviction Or Not, Seized Cash Is ‘Cost of Doing Business’ In Louisville Monday, Sep 23 2019 

This story is part of a collaborative reporting initiative supported by the Pulitzer Center on Crisis Reporting. All stories can be found here: https://taken.pulitzercenter.org/

Theron Carson and his friends were smoking weed and playing video games when the police showed up at his door.

It was 1 a.m., and the officers told Carson someone complained about the smell. The quickest resolution of the problem, they told Carson, was to allow them to search his Newburg apartment.

After police found his weed and his digital scale, they emptied his wallet. Then they charged him with drug trafficking.

Carson, now 24, says he is not a drug dealer. The $1,200 police took was earned legally, he said, and a mix of rent money, bill money and cash he and his girlfriend socked away in preparation for their daughter’s birth. He wanted to fight the case and get his money back.

But when he showed up for his March 2018 court date, prosecutors were willing to give him a deal: plead guilty to a lesser charge of possessing marijuana and avoid prison time. But his $1,200? Gone.

His public defender told him the risk of fighting was too high, and advised him to voluntarily give up the cash. It did not feel voluntary to Carson.

“I was devastated,” he said. “But there was no other option.”

Money seized through asset forfeiture provides leverage in resolving drug trafficking cases and has become an ingrained aspect of the justice system in Louisville, records and interviews with attorneys, defendants and judges show. Defendants lose their money and property even when cases are dropped or reduced to possession, a charge that doesn’t fall under the intent of the law and one for which police don’t generally seize assets, a Kentucky Center for Investigative Reporting investigation found.

Carson’s case was among 351 now-closed cases examined by KyCIR that involved asset forfeiture between 2017 and this June. Just one case proceeded to trial; the rest were resolved in deals that required the defendant to surrender any claim to money or property seized by LMPD.

In 1 in 4 of the closed cases, the defendant was not convicted of trafficking but gave up seized property anyway.
Of the nearly $2.1 million seized by LMPD in the cases reviewed by KyCIR, about $328,000 came from cases where the defendant was not ultimately convicted of drug trafficking. Kentucky’s law says law enforcement officers can seize assets if they have probable cause to believe the assets are proceeds of drug sales.



Keeping property without proving the crime that sparked the seizure is problematic, said Steven L. Kessler, a private attorney based in New York City and asset forfeiture expert who often handles cases involving seized property across the country. If a forfeiture was tied to a particular crime, Kessler said, prosecutors should be willing and able to prove it.

“If there is no crime, then there’s no crime,” Kessler said. “The cash should be returned, the car should be returned, the property should be returned, and the case should end right there.”

LMPD officials declined to be interviewed for this report. Mike O’Connell, the Jefferson County Attorney, did not agree to be interviewed. His spokesperson, Josh Abner, said in an email that defendants have legal counsel and are informed of their rights in order to make an informed decision before agreeing to plea deals involving asset forfeiture.

Jefferson County Commonwealth’s Attorney Thomas B. Wine said in an interview with KyCIR that losing cash is the “cost of doing business” if you’re caught with drugs and money, regardless of how the case is resolved.

“To somehow suggest that money is going to make a difference for any of us, at least here on the prosecution side, is ridiculous,” Wine said. “It’s not worth it for the prosecutors that I work with.”

Though surrendering seized cash was part of the deal in every case KyCIR reviewed, Wine said that doesn’t mean the money is used as a bargaining chip by his prosecutors.

But Leland Hulbert, a former spokesperson for the Jefferson Commonwealth’s Attorney now in private practice, said surrendering cash is often a simple, almost expected, concession defendants can make to appease prosecutors and help resolve a case.

“It sounds bad,” Hulbert said. “But at the end of the day, most people caught with their foot in the trap are going to pay whatever it takes.”

On All Sides Of Forfeiture Cases, Plea Deals Favored

Though asset forfeiture usually accompanies a criminal case, Kentucky law doesn’t require it or require a conviction for law enforcement to keep the money.

About 16 percent of the defendants saw their trafficking charges amended to lesser crimes, such as possession a crime that would not likely result in police seizing assets, records show. But by and large, police and prosecutors still kept the money.

The seizures in Louisville disproportionately affected African Americans: The city’s population is just 23 percent African American, but at least 56 percent of the defendants in asset forfeiture cases were black; racial information was not disclosed or available for about 8 percent of cases.

Alexandra Kanik | wfpl.org

About 8 percent of the defendants in the cases reviewed by KyCIR saw trafficking charges dismissed outright but they still agreed to give up the money when the case was settled.

Drug cases can be complex, according to Ebert Haegele, the division chief of the Jefferson Commonwealth’s Attorney’s narcotics unit. Plea deals with softer penalties are offered to defendants with light criminal records, or those who are willing to provide information to law enforcement, among other reasons, Haegele said.

“There’s lots of reasons why [narcotics] cases get amended,” Haegele said. “Police officers or detectives are involved in that process and understand everything that’s going on.”

Wine, the commonwealth’s attorney, said he has little sympathy for people caught with drugs and money.

“These people have cost us a tremendous amount of money,” Wine said, pointing to the effect of the drug trade on families and neighborhoods.

In fact, Wine said, people are often eager to part with the money to avoid the perception they were dealing drugs.

“The more somebody screams they want that money, the more likely it is that we’re going to say, ‘Well, that’s evidence that you’re using it for trafficking,’” Wine said. “Either you possess the drugs with the intent to sell, and the money is evidence of that crime, or you didn’t, and you go to trial.”

But trials are rare: Wine estimates nearly 98 percent of cases his office prosecutes are settled with a plea deal.

Defense attorneys say this can sometimes be in the best interest of their clients, who are weighing a prison sentence against hundreds or thousands of dollars.

Many defendants, including Carson, were represented by public defenders. The Louisville-Jefferson County chief public defender, Leo Smith, didn’t respond to calls seeking interviews.

Hulbert, the former prosecutor, said the seized cash does help him as a defense attorney to broker deals for his clients.

“That’s one of the first things that pops in my head,” Hulbert said. “We can use that as a negotiating tool.”

Helping the prosecution get the case over with quickly means less work and less time for everyone, Hulbert said.

“It’s a conversation I have to have with my clients all the time,” he said. “‘Look, we can fight to get this back. But your resolution may be more difficult, you may get more years, you may get more time.’”

Keith Kamenish, an attorney who formerly served as the head narcotics prosecutor in the Jefferson Commonwealth’s Attorney office, said plea negotiations are processes of give-and-take between defendants and prosecutors. The process turns cash from supposed evidence into leverage, he said.

“No one’s going to ever be able to tell you how much money was a factor,” Kamenish said. “But the one thing they won’t tell you is that it’s not. It’s a matter of degree.”

Alexandra Kanik | wfpl.org

Drugs Plus Cash Equals Trafficking

Police and prosecutors say asset forfeiture is a key to combating the drug trade because it hits dealers where it hurts most: the wallet. And to be sure, some defendants are traffickers, busted after police develop substantial investigations.

But the seizures don’t always appear to be netting kingpins: LMPD officers seized less than $1,000 in nearly 40 percent of the cases.

In many of the cases reviewed by KyCIR, the trafficking charge was not based on first-hand observations or information that a person was selling drugs. Some began with chance encounters or traffic stops for minor violations, like excessive window tinting or signal violations. Officer explanations for charges often focused on the defendant having both drugs and some money the cash itself considered to be proof of the crime.

The state’s asset forfeiture law says that “all moneys, coin and currency found in close proximity to controlled substances… are presumed to be forfeitable.”

Kentucky law dictates that the police department keeps 85 percent of what it seizes, and the rest goes to the state’s prosecutors.

Kamenish said the potential to profit can blur the officers’ discretion and influences how they charge crimes. If officers feel pressure to seek out and seize cash, that can come at the expense of justice, he said.

“Sometimes the charge fits the money seized, instead of money seized fitting the charge,” Kamenish said. “Any honest defense attorney or prosecutor or officer will tell you that.”

Alex Payne, the commissioner of the Kentucky Department of Criminal Justice Training, said officers statewide are taught to consider the evidence and charge accordingly. The amount of drugs present, how they’re packaged, and also how much money an individual is carrying and if they have any other items like scales or bags are all considerations in whether to charge a person with trafficking, Payne said.

But officer discretion varies based on experience, their training and the demographics of people they police, Payne said.

“You can only train them to do the right thing,” Payne said. “Do they all remember that? No.”

Wine trusts his prosecutors to distinguish between dealers and users, who he said need treatment instead of punishment. But sorting out who’s who is tough because both dealers and users often carry cash and drugs, items police and prosecutors consider to be clear indicators of trafficking.

In an emailed statement, LMPD spokesperson Jessie Halladay said the law is clear on what may be considered possession or trafficking, and officers are responsible for understanding state law.

Among the cases reviewed by KyCIR:

  • Police stopped a man in January 2017 for failing to use a turn signal while leaving “a high narcotics area,” according to an arrest citation. The officer reported smelling marijuana but didn’t find any; instead, a search netted a needle loaded with suspected meth, two pills and a “large amount of money”: $231.
  • An LMPD officer arrested a man suspected of selling synthetic marijuana at a west Louisville gas station in March 2017. In the arrest citation, the officer noted the man possessed a “large amount of lower denomination bills” in his wallet. The “large” amount of cash officers seized: $33.
  • In February 2018, a woman was charged with trafficking at Fourth Street Live after she threw a wad of about $400 cash and some marijuana at a security guard during an argument, according to an arrest citation. She had a half-ounce of marijuana, which officers determined to be “an amount that would normally exceed personal use.” That’s the same amount the Metro City Council deemed to be considered personal use this June when it passed an ordinance naming marijuana possession the city’s lowest law enforcement priority.

When these cases went to court, each one ended with a deal: Two were given lesser charges of possession. One, the man with $33, was convicted of trafficking. All lost the cash.

Few Even Ask For Money Back

J. Tyler Franklin | wfpl.org

Theron Carson sits with his daughter watching cartoons.

On a recent weekday, after working his shift at a warehouse in Riverport, Theron Carson sat in his living room floor with his daughter, Layla. His girlfriend was pregnant when he was charged in 2017.

Cartoons played on the television as Carson reflected back on the night police burst in his door, prompting the charge of drug dealing and losing his $1,200.

“It was just trauma,” he said.

When he showed up for court in 2018, Carson had felt certain he’d get his money back.

The police didn’t actually have any evidence of him trafficking, he said: just a scale he says he uses to portion his weed and sandwich bags he uses for snacks. The amount of weed in his house did not seem like a lot to Carson, either. But in the end, he never got to make his case to a judge.

The raid left him uneasy in his home. The forfeiture left him and his girlfriend on shaky financial ground as they were trying to save all they could to prepare for the birth of their child. Thoughts of eviction swirled in his mind.

Looking back, he said he lost his money on a mere assumption he was dealing drugs, not on proof. For that, he doesn’t think the state deserved his money.

“They didn’t work for it. They just took it,” Carson said. “But you can’t win against them.”

Defendants have a right to file a motion in court to ask for their property back, but few do.

Judges told KyCIR they rarely see it happen, and defendants more often opt for the plea deals that include relinquishing their money. If surrendering seized cash can ensure a defendant leniency, they’ll often agree to give it up, said Jefferson Circuit Court Chief Judge Brian C. Edwards.

“If they can use that [money] as a tool to get probation, as opposed to going to prison, or to knock off a few years on a sentence, they’re not gonna pick that fight,” he said. “That’s not the hill they want to die on.”

Records show that LMPD returned property to defendants in about 100 cases between 2017 and this June. Those cases were not part of KyCIR’s examination because they weren’t included in LMPD’s seizure data.

LMPD provided additional data on returned property through an open records request, but refused to provide the names of defendants. In an email, LMPD spokesperson Alicia Smiley said “it is reasonable to presume that they were found not guilty in which case we would not release that person’s name.” Kentucky’s Open Records Act does not include any blanket exemptions for withholding names of people who are arrested but not convicted.

KyCIR could determine the outcome using other data in 33 cases. Nearly half were found guilty of trafficking. Police returned a car officers seized as part of a plea deal but still kept the defendant’s cash in 23 of the identifiable cases.

Kate Miller, advocacy director for the American Civil Liberties Union of Kentucky, said the costs of legal defense can certainly outweigh the value of the assets at stake, but that doesn’t void a person’s right to due process.

Miller said poor people too often suffer undue consequences within the criminal justice system because they lack the resources to defend themselves.

“We see that all the time where people have their liberty restricted, where people are detained, where people are incarcerated, simply because they’re poor,” Miller said. “And we see that when it comes to asset forfeiture, because the majority of people that are having assets seized are not kingpin drug dealers.”

It’s not always clear why defendants agree to part with their property. But the median amount seized in cases KyCIR reviewed was about $1,500, which means giving up the cash is often cheaper than the costs and risks of mounting a fight in court.

‘It was way easier’

Ronald Traynor said giving up his seized money made the difference between prison and diversion after he was arrested for trafficking in October 2017.

Police obtained a search warrant for Traynor’s apartment after he allegedly sold crack cocaine to a confidential informant in a controlled buy, according to police records obtained through an open records request.

When police showed up, they found an assortment of drugs, as well as plastic bags and scales.

He said he does not sell drugs, and days earlier, he’d received a check for about $2,000 from a personal injury suit after a car accident. Police seized $3,100 from his apartment.

The money, he said, was a double-edged sword. It gave prosecutors evidence to pin the trafficking charge on him. But giving it up secured the deal that enabled him to avoid prison time.

Traynor ultimately pleaded guilty to complicity to sell cocaine. A charge of trafficking heroin was reduced to possession, and he also pleaded guilty to possession of codeine and possession of drug paraphernalia.

He received a penalty of diversion essentially supervised probation for two years, with a five-year prison sentence looming if he violates the terms and he gave up his $3,100.

“They used the money as leverage with the drugs to use that against me,” Traynor said. “But in the same sense, I feel like if I didn’t have no money or representation, we wouldn’t be having this conversation. Instead I would be starting a bid in the penitentiary.

“That’s how I feel. My money got me a probation deal.”

Gerald Heston admits he was going to sell the individually packaged bags of weed he had in a jar when police caught him in March 2018 and seized his $500.

Heston is a dishwasher at a local restaurant and stopped for a coffee on his way to work. When he returned to his truck, police were waiting. An officer said they’d gotten a general call about a suspicious vehicle, and asked if they could pat him down and conduct a search of his vehicle.

Heston hadn’t sold the drugs yet, and he said the money police took wasn’t from his small-time dealing: It was from his paycheck. He was planning to pay bills when his shift ended.

Heston had pay stubs, but he wasn’t sure he could prove that specific money the police seized was from his job and not from drug dealing what a judge would have required if he asked for his money back.

Without proof, the seized cash is kept, regardless if it’s legally or illegally earned.

The amount of cash a person is willing to surrender should have no sway over how they’re charged, convicted, or penalized, said David A. Harris, a law professor at the University of Pittsburgh.

But it can, he said, and it puts “everything out of whack.”

“When you’re using a government process, such as criminal prosecution, that has the potential to impose severe penalties on people to even take their freedom, we should do everything we can to minimize the influence of money,” Harris said.

Heston knew that a prolonged court battle would be difficult, risky and expensive. When a public defender told him he could give up the cash and resolve his case with a softer penalty, he jumped on it. He agreed to forfeit his cash in exchange for the lesser crime of possession of marijuana.

The cost to move on was about $500 cash.

“It was way easier on me,” Heston said. “Less stressful, all that.”

Alexandra Kanik contributed to this report. Contact Jacob Ryan at (502) 814.6599 or jryan@kycir.org.

After Clearing Backlog, Rape Kit Testing Takes Seven Months — Or Longer Friday, Sep 20 2019 

More than a year after a deadline has passed to process all rape kits within 90 days, the Kentucky State Police forensic laboratory is averaging a wait of 215 days.

That number has diminished only slightly since the end of 2018, when rape kits were taking an average of 220 days to process. Advocates and researchers say it is unlikely the lab will meet next summer’s legislature-imposed benchmark requiring all rape kits to be processed within 60 days. 

A KSP spokesperson declined to make the director of the lab available for an interview. But in an emailed statement, news stories and public reports, agency officials have blamed the delays on a number of factors. 

Among them: rape kit submissions have increased nearly 100 percent since a 2016 state law required police to submit them if the victim wants to report. Low salaries are causing high lab employee turnover rates. And analysts have been pulled into reviewing data from 5,000 kits that were tested at a Utah lab that was later found to have been contaminated.  

“Despite these challenges, we’ve made a great deal of progress,” KSP Sgt. Josh Lawson wrote in an email. “While it’s too early to predict what the landscape will look like a year from now, we are certainly trending in the right direction.”

But for victims, the reason is less important than the impact, said Eileen Recktenwald, the executive director of the Kentucky Association of Sexual Assault Programs. 

“Their lives are postponed,” Recktenwald said. “I’ve heard victims say that while waiting for justice, they feel that their lives are on hold. If they have some understanding that something is happening [with their kit], they start healing quicker.”

Forensic sexual assault exams document injuries and gather DNA evidence in a rape kit, and all hospital emergency rooms are required to offer them. The evidence from a rape kit can confirm a known suspect, identify an unknown suspect and connect an alleged assailant to other crimes. 

A 2015 audit found a backlog of more than 3,000 untested rape kits sitting untested at the forensic lab and in evidence rooms of law enforcement agencies around Kentucky.

In 2016, the legislature passed the Sexual Assault Forensic Exam (SAFE) Act, which was intended to prevent a similar backlog from developing in the future. Under the new law, if a victim wants to report to the police, law enforcement must submit the kit to the KSP lab within 30 days. A recent report by the state Sexual Assault Response Team Advisory Committee found that nearly 75 percent of kits are submitted within that window. 

Through grant funding, Kentucky tested the backlog of rape kits and announced the effort was complete in 2018. 

Today, once the kit is in the hands of the lab, law enforcement and victims must wait an average of seven months for results.

Lawson said that figure takes into account 200 kits that had been submitted to the lab for testing at least 18 months prior. Those kits were waiting for funding to be outsourced, but were recently folded into the current queue at the KSP lab instead. Lawson said those cases are skewing the average processing time. 

But the effect on more recent cases is clear: the testing is complete in less than half of the rape kits from 2018 offenses that were submitted that same year. 

End the Backlog, a national non-profit founded by actress Mariska Hargitay, defines a backlog as any kits not tested within 30 days of receipt. Recktenwald said she’s concerned that the delay in testing last year’s rape kits could mean a new backlog is developing in Kentucky. 

Recktenwald, whose organization publishes the Sexual Assault Response Team Advisory Committee’s report on behalf of the state, said lab officials have assured her that all of the kits will be tested as soon as possible. 

“But it does worry me,” she said. 

University of Louisville researcher Brad Campbell, the principal researcher of the SAFE Kit Backlog Research Project, said he is encouraged that testing time is faster than before the SAFE Act even as more kits are being turned in. But he says a lack of funding for necessary staff could prevent the lab from making more progress.

“The crime lab is still under-resourced, and still needs more people to go in and handle the testing of the kits,” he said.

A 2018 report from Kentucky Association of Sexual Assault Programs found that Kentucky’s entry-level lab salary was the lowest of the seven states that surround Kentucky. Lab director Laura Sudkamp asked the legislature in 2018 for an additional $2 million a year to raise salaries to retain experienced analysts, according to the Lexington Herald-Leader. 

Though the 2018-2020 budget allocated an additional $1 million each year for salary increases, the lab is anticipating that turnover will remain high, according to the advisory committee’s report. 

The deadlines in the law are contingent on sufficient funding, and it prescribes no penalties if the lab doesn’t meet them.  

The high rates of turnover slow down testing, the report said, because new employees need nine months of training on serology and two years training in DNA testing. Analysts have to be pulled off of actively testing kits in order to train new employees, the report noted.

And a group of analysts also had to be pulled off of testing new cases to review data from the 5,000 kits tested by Sorensen Laboratory before contamination was discovered there, according to Lawson. 

Despite these hurdles, the lab worked more DNA cases than it received for the first time in over a decade; analysts tested nearly as many kits in the first six months of 2019 as they did in all of 2018, according to Lawson. 

But lawyers and advocates say the delays can still be felt across the system.

“Any sort of unnecessary delay, because of staffing issues or financial issues, when we’re dealing with people’s constitutional rights is obviously a problem,” said Louisville defense attorney Karen Faulkner, who has represented people accused of sexual offenses. “Getting evidence timely and quickly could make it possible to ask for a different bond. It could resolve the case or allow the justice system to play out with a fast and speedy trial.”

And for victims, long delays can extend an already arduous process, according to Campbell, the UK researcher. 

“Shooting for that 90-day goal, we’re showing victims that if they’re going to come forward and report, the state’s going to do their due diligence to try to seek justice for them,” he said. 

Contact Eleanor Klibanoff at (502) 814.6544 or eklibanoff@kycir.org.

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