O’Connell: New evidence rule vindication
Andrew Wolfson, The Courier-Journal 7:27 p.m. EST November 21, 2014
Vilified for demanding that judges stop “disingenuous maneuvering” by defense lawyers in drunken-driving cases, Jefferson County Attorney Mike O’Connell said he feels vindicated now that the Kentucky Supreme Court has officially banned the moves he complained about.
“I am very pleased,” O’Connell said Friday. “It certainly is a great improvement for all trial courts in the commonwealth.”
By a 6-1 vote, the court Nov. 7 adopted a rule effective in January that will prohibit lawyers from deliberately waiting until after trials start to file motions to suppress evidence.
O’Connell had complained they were doing it so that if they won such motions and cases were dismissed, the prosecution couldn’t appeal because of the constitutional protection against double jeopardy — trying a defendant twice over the same crime.
O’Connell was privately admonished for sending a harshly worded letter to district judges in December 2012 demanding that they disallow such motions; a Kentucky Bar Association hearing officer said O’Connell had violated a rule that bars lawyers from contacting a judge without the other side present.
But the KBA’s board of governors recommended that the complaint be dismissed and the Supreme Court in September unanimously affirmed the recommendation, saying O’Connell didn’t violate the prohibition against ex parte contacts and had a First Amendment right to speak out.
The new Supreme Court rule on suppression motions says that unless there are good reasons for it, they must be made before trial.
O’Connell advocated for the rule change after district judges said they had no choice but to follow the existing rules, which seemed to allow motions during trial.
One of those judges, Stephanie Pearce Burke, denounced O’Connell’s letter at the time as “threatening in a political way” and said she was “astonished that the county attorney would send such a brash letter to judges telling us how to do our job.”
Burke said Friday that O’Connell should have just gone to the Supreme Court in the first place. “We are bound by the rules as they are, until they are changed,” she said
Louisville attorney J. Vincent Aprile II, who filed the bar complaint against O’Connell, said the court’s adoption of O’Connell’s position “vindicates the position he wanted but not the way he pursued it.”
O’Connell said he wanted to use “every avenue I thought was available” to push for change.
He had said he had a duty to speak out after The Courier-Journal reported that most DUIs tried before judges resulted in acquittals. O’Connell said the stories called the integrity of the District Court into question.
He said Friday that “now there is no question that this is the proper way” to handle such motions.
“The court has spoken,” he said.
Reporter Andrew Wolfson can be reached at (502) 582-7189