Justice Lukowsky dissent in 1977 suggests how the court should react to prosecutorial misconduct.

I’m sorry I never got to met Justice Lukowsky. We frequently find comments he made that that are wise and timeless. His suggested remedy could well be applied to the current practice of prosecutors continuing to use the “Send a Message” argument although the appellate courts continue to condemn this argument.
Justice Lukowsky in his dissent in Darnell v. Com., 558 S.W.2d 590 (Ky., 1977, objected to the continued practice of prosecutors to ignore prior court rulings that forbade the Commonwealth in commenting on a defendant’s post arrest silence.
“The time has come for us to take a more prophylactic approach. We should exercise our supervisory authority over the lower courts of Kentucky and hold that whenever this error is committed it will result in reversal and a new trial. If that should prove to be insufficient to eliminate this form of gamesmanship we should assess the costs of appeal and the new trial against the Commonwealth Attorney.”

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