Press Coverage

Media Recognition

Mr. Shouse’s work has been covered by The New York Times, The Washington Post, Politico, and the television show After the First 48. He has also been recognized as one of Louisville’s top lawyers in Louisville Magazine.

Murder suspect facing death penalty found not guilty in 2013 homicide in PRP

LOUISVILLE, Ky. (WDRB) – Charles Washington, who faced the death penalty for a 2013 murder charge, was found not guilty Thursday.

Washington was one of four men charged in connection to a home invasion and fatal shooting in the Crawford Crossing Apartments in Pleasure Ridge Park on Aug.12, 2013. Washington, Shakahakeen Boyd, Jevon Harris-Curry and Timothy Cross pleaded not guilty to murder, burglary, robbery and other charges.

LMPD detectives said the four men broke into 21-year-old Paul Barber’s apartment, demanding money, drugs and cell phones. Barber’s newborn son, fiancée and two other people were inside at the time.

Detectives said Barber was targeted. He was found dead outside the apartment with a gunshot wound.

All four suspects faced the death penalty, but Cross and Boyd took plea deals in order to testify against Washington.

“Mr. Cross and Mr. Boyd were facing the death penalty,” said Ted Shouse, who is representing Washington. “And the commonwealth cut deals with them to give them 12 years in prison. And in exchange, they had to testify against Mr. Washington.”

Shouse added that as part of the plea, the death penalty and murder charges were dropped for Cross and Boyd.

Shouse said the jury deliberated for over ten hours before acquitting Washington on the charges of murder and tampering with physical evidence. But the jury was hung on the charges of burglary and robbery.

“We are relieved for our client, and he is relieved,” said Annie O’Connell, another attorney on the team representing Washington. “He’s also mindful of the fact that somebody died in this case. And he sympathizes with the family and knows that is very difficult.”

O’Connell said the decision and the amount of time the jury took to make it show the jury “took their job very seriously.”

An acquittal in a capital case with the possibility of the death penalty is not common, Shouse said.

“It’s very unusual,” he said. “And what makes this particularly unusual is it took the commonwealth less than 16 hours to put on their case. A capital case usually lasts at least five days.”

Shouse said the commonwealth had no physical evidence tying Washington to the events of this case. He added that Cross and Boyd were unreliable witnesses.

“There’s also a larger issue at play in a case like this where you have inherently unreliable witnesses and no physical evidence,” Shouse said. “That’s exactly how innocent people get sent to prison.”

The trial for the fourth suspect in this case, Harrison-Curry, will begin in October.

Washington will remain in jail, because he faces attempted murder and other charges in a different case. Two days after Barber was murdered, LMPD detectives said Washington attempted to rob and kill two other people. A date for this trial has not been set yet.

A spokesperson for the commonwealth said prosecutors cannot talk about the cases since everything is still up in the air. However, the spokesperson said it will depend how this second trial goes whether or not the commonwealth will decide to retry Washington on the hung charges of burglary and robbery in Barber’s case.

Louisville man freed after 20 years in prison amid allegations of police, prosecutor misconduct

LOUISVILLE, Ky. (WDRB) — After spending more than 20 years in prison for a 1998 double murder and robbery conviction, Michael Brizendine walked out of court a free man Thursday, a result set in motion months ago when a federal judge threw out the guilty verdict.

“Michael Brizendine went to prison because of police and prosecutorial misconduct,” Washington defense attorney Eric Sandberg-Zakian said after a short hearing in which Brizendine was sentenced to time served. “He was an innocent man.”

Brizendine previously entered an Alford plea to charges of robbery and manslaughter 2nd, meaning he maintained his innocence but acknowledged prosecutors had enough evidence to potentially get a conviction.

Jefferson Commonwealth’s Attorney Tom Wine said in a statement that he takes “issue with several statements by Mr. Brizentine’s defense counsel.”

“First, Brizentine is not an innocent man,’ Wine said. “We believe the evidence shows that Mr. Brizentine is guilty of the charges to which he has pled. And importantly, in his plea, Mr. Brizentine admits that there is sufficient evidence for a jury to convict him of the charges to which he has pled.”

“Second, even though this trial happened over twenty years ago, we are confident that had the prosecutor known that the wallet referred to in this case had in fact been recovered and returned to the victim’s family, he would not have made mention of it in his closing argument.”

Earlier this year, Assistant Commonwealth’s Attorney Scott Drabenstadt acknowledged there were problems with the case but insisted Brizendine could be retried for the 1996 murders of Jeffrey Wilson and Johnny Nash.

“Whatever happened in terms of prior trial counsel being ineffective, whatever happened in terms of perhaps LMPD officers either being grossly negligent or even being dishonest in terms of an item of evidence with the wallet, this case can still resolve in a conviction for Mr. Brizendine, no doubt about that,” Drabenstadt told a judge in February.

Louisville defense attorney Ted Shouse, who also represents Brizendine, said the change of heart by the Jefferson Commonwealth’s Attorney’s office to offer a plea and time served rather than retry Brizendine “speaks for itself.

“… It’s disheartening to see how things like this happen but now Mr. Brizendine needs to get on with his life,”

During closing arguments of Brizendine’s trial, a Louisville prosecutor showed jurors a photo of a victim’s turned-out pocket and noted the man’s wallet was missing and had not been recovered.

The implication: The man had been robbed.

But the wallet had been removed by police and later given to the victim’s family — a fact the prosecutor, detective and even Brizendine’s own attorney knew or should have known but did not correct during the trial, according to court records.

In addition, police were accused of ignoring and possibly losing a driver’s license found at the scene — a possible alternative suspect, Sandberg-Zakian said.

“Police botched the crime scene, hid evidence and then either missed or covered up a crucial lead,” he said. “Then, at trial, these officials got up in court and said things that were false to a jury.”

The lead detective could not be reached for comment. He is retired.

Brizendine, 42, hugged his attorneys and smiled broadly at his official sentencing Thursday but referred comment to his attorneys.

He has been filing wrongful conviction motions, often on his own, for most of the last two decades.

After years of getting nowhere, a panel of 6th Circuit Court judges finally accepted his appeal and appointed a Washington law firm to represent him.

In February, the conviction was vacated by a federal judge amid allegations of ineffective counsel and misconduct by police and prosecutors.

After that, the Kentucky Attorney General’s office conceded Brizendine has received ineffective counsel and the case was sent back to circuit court.

In March of last year, Brizendine’s current attorneys contacted Louisville Metro Police and found evidence the wallet had never been stolen and instead returned by police to Nash’s mother.

A police department inventory of evidence found at the crime scene listed a wallet, but Brizendine’s attorney did not investigate whether it belonged to Nash, according to court records.

In the guilty plea documents, prosecutors wrote that the charges were being amended because Brizendine has been in custody since 1996 and the victims of the murdered men had forgiven him and “preferred to move on with their lives.”

Drabenstadt told a judge last month that the victims’ children hoped Brizendine would “go on with his life” and “live a law abiding life from here on out.

“None of this means anything if he goes back to what they believe was his life 20 some years ago,” the prosecutor said.

On July 3, 1996, Brizendine and co-defendant George Hobbs were involved in a drug deal with Wilson and Nash, according to court records.

A middleman, Ray Joseph, testified that the transaction at Wilson’s home went bad and Hobbs and Brizendine pulled out their weapons. As Joseph fled, he told police he heard several gun shots.

When Brizendine and Hobbs returned to the vehicle, Joseph testified that Brizendine told him “(your) friends just got shot and robbed.”

The prosecutor argued the photo of Nash’s pocket was relevant because it appeared “to have been partially turned inside-out,” leading jurors to assume the wallet was stolen after he was shot.

Lead detective Tim Clark, who is no longer with the Louisville police department, testified that officers had “disturbed” the crime scene, specifically by moving a shell casing. He also said that he was concerned about the photo of Nash’s turned-out pocket, according to court records.

And Brizendine’s former defense attorney did not question whether Clark was concerned about whether the wallet had been taken by police or dispute the prosecution’s claims.

On Feb. 9, 1998, a Jefferson Circuit Court jury convicted Brizendine and Hobbs of two counts of wanton murder, robbery and burglary.

To get to the wanton murder charge, jurors had to believe Brizendine committed a robbery. Prosecutors relied heavily on the crime-scene photo of Nash’s out-turned pockets to prove robbery.

“This is an exoneration,” Sandberg-Zakian said of the guilty plea and time served. “It allows the commonwealth’s attorney to save some face.”

1998 Murder Conviction Tossed Amid Allegations of Police, Prosecutor Misconduct

LOUISVILLE, Ky. (WDRB) – During closing arguments of Michael Brizendine’s 1998 double murder and robbery trial, a Louisville prosecutor showed jurors a photo of a victim’s turned-out pocket and noted the man’s wallet was missing and had not been recovered.

The implication: The man had been robbed.

But the wallet had been removed by police and later given to the victim’s family – a fact the prosecutor, detective and even Brizendine’s own attorney knew or should have known but did not correct during the trial, according to court records.

With the occasional help of attorneys, Brizendine spent roughly two decades writing unsuccessful wrongful conviction motions from prison, where he has been serving a life sentence. But in February, the conviction was vacated by a federal judge amid allegations of ineffective counsel and misconduct by police and prosecutors.

In fact, in sending the case back to Jefferson Circuit Court, U.S. District Court Judge David Hale ordered prosecutors to notify him within 60 days whether they intend to take Brizendine to trial again.

“I’ve never seen an order like this,” said Jefferson Circuit Judge Ann Bailey Smith, when the case came before her on Feb. 24.

On Thursday, the Jefferson Commonwealth’s Attorney’s office provided its answer, allowing Brizendine to plead guilty to lesser charges — manslaughter 2nd degree and robbery — and be released from prison immediately with time served.

Brizendine, 42, smiled broadly at his supporters in court before being taken back into custody to begin the process of getting released. He was released on Friday. His attorneys, Ted Shouse and Eric Sandberg-Zakian, declined to comment until Brizendine is officially sentenced next month.

Brizendine entered an Alford plea, meaning he maintained his innocence, but acknowledged there is enough evidence for a jury to find him guilty.

Assistant Commonwealth’s Attorney Scott Drabenstadt in February had indicated prosecutors would retry Brizendine regardless of the past mistakes.

“Whatever happened in terms of prior trial counsel being ineffective, whatever happened in terms of perhaps LMPD officers either being grossly negligent or even being dishonest in terms of an item of evidence with the wallet, this case can still resolve in a conviction for Mr. Brizendine, no doubt about that,” Drabenstadt told Smith.

In the guilty plea documents, prosecutors wrote that the charges were being amended because Brizendine has been in custody since 1996 and the victims of the murdered men had forgiven him and “preferred to move on with their lives.”

A family member of one of the victims declined to talk with a reporter outside the courtroom.

Drabenstadt told Smith that the victims’ children hoped Brizendine would “go on with his life” and “live a law abiding life from here on out.

“None of this means anything if he goes back to what they believe was his life 20 some years ago,” the prosecutor said.

Missing wallet

On July 3, 1996, Brizendine and co-defendant George Hobbs were involved in a drug deal with Jeffrey Wilson and Johnny Nash, according to court records.

A middleman, Ray Joseph, testified that the transaction at Wilson’s home went bad and Hobbs and Brizendine pulled out their weapons. As Joseph fled, he told police he heard several gun shots.

When Brizendine and Hobbs returned to the vehicle, Joseph testified that Brizendine told him “(your) friends just got shot and robbed.”

The prosecutor argued the photo of Nash’s pocket was relevant because it appeared “to have been partially turned inside out,” leading jurors to assume the wallet was stolen after he was shot.

Lead detective Tim Clark, who is no longer with the Louisville police department, testified that officers had “disturbed” the crime scene, specifically by moving a shell casing. He also said that he was concerned about the photo of Nash’s turned out pocket, according to court records.

Attorney Doug Kemper, a prosecutor at the time, “knew that the wallet had been recovered” but used Clark’s testimony to “support the theory that (Brizendine) had stolen the wallet,” current defense attorneys argued in court records.

Brizendine’s current attorneys accused Kemper of prosecutorial misconduct in a September motion to a federal court judge, arguing he had evidence police had taken the wallet.

“The prosecutor’s argument and representation was in direct conflict with evidence in the state’s possession,” defense attorneys wrote in a September motion.

And Brizendine’s former defense attorney, Alex Fleming, did not question whether Clark was concerned about whether the wallet had been taken by police or dispute the prosecution’s claims.

On Feb. 9, 1998, a Jefferson Circuit Court jury convicted Brizendine and Hobbs of two counts of wanton murder, robbery and burglary.

To get to the wanton murder charge, jurors had to believe Brizendine committed a robbery. Prosecutors relied heavily on the crime-scene photo of Nash’s out-turned pockets to prove robbery, according to court records.

“Serious problems”

Representing himself, Brizendine has been filing appeals for more than a decade, continually being denied by the courts.

After years of getting nowhere, a panel of 6th Circuit Court judges finally accepted his appeal and appointed a Washington law firm to represent him.

After that, the Kentucky Attorney General’s office conceded Brizendine has received ineffective counsel and the case was sent back to circuit court.

In March of last year, Brizendine’s current attorneys contacted Louisville Metro Police and found evidence the wallet had never been stolen and instead returned by police to Nash’s mother.

A police department inventory of evidence found at the crime scene listed a wallet, but Brizendine’s attorney did not investigate whether it belonged to Nash, according to court records.

“The prosecutor’s theory and misrepresentations, however, both went unchallenged by defense counsel during witness examination and closing argument,” the defense said in a September motion.

A report about police having the wallet was turned over to Brizendine’s defense attorney, yet he did “nothing to challenge the misrepresentations and untruths” or attempt to have the wallet entered as an exhibit in the trial, Brizendine argued in a motion he filed in 2011.

In the February hearing, Sandberg-Zakian, an attorney out of Washington, told Judge Smith he didn’t see how prosecutors would be able to convict Brizendine “once we expose the serious problems with police behavior in this case.”

In addition, Brizendine’s trial attorney failed “to discover real serious problems with the behavior of the police and prosecutors in this case.”

Fleming, Brizendine’s trial attorney, did not return a phone message seeking comment.

Kemper, the prosecutor who gave the closing arguments, also did not return a message.

Clark, the Louisville police detective, is no longer with the department and could not be reached.

At the February hearing, Drabenstadt argued prosecutors still had a statement from Hobbs that Brizendine was “in on it” and “we are ready to go to trial.”

He said the higher court rulings do not indicate that Brizendine was innocent, just that there were “missteps” by the defense attorney, “actions by detective, perhaps prosecutor, whether intentional or grossly negligent, who knows?”

Current defense attorneys disagreed, saying the higher court had ruled that had the wallet error been pointed out, it very well could have caused jurors to come up with a different verdict.

“They got 20 years from our client for free,” Sandberg-Zakian told Smith.

Smith Found Not Guilty in Second Vine Street Murder Trial

After a hung jury in December 2015, Brandon Smith is no longer facing a murder charge. The three man, nine woman jury deliberated for about four hours Thursday after hearing three days of testimony in the May 2014 fatal shooting of 28-year old Keon Grant. Christian Circuit Judge Andrew Self read the jury’s verdict.

Commonwealth Attorney Lynn Pryor asked to poll the jury and each member answered “yes” that was their verdict. Smith’s Attorney Ted Shouse says they are pleased with the decision.

His co-counsel Annie O’Connell says Smith is relieved.

As part of the deliberations, jurors asked to watch Victor Mills testimony after 30 minutes in the jury room. They returned to deliberate at 12:20pm and reached a verdict around 2:30pm.

Smith still faces a Possession of a Firearm by a Convicted Felon charge in connection to the case. He was also arraigned Thursday afternoon on charges of Retaliating Against a Participant in a Legal Process and 2nd Degree Being a Persistent Felony Offender.

All charges vs. Ind. House hopeful dropped

All charges have been dropped against Indiana congressional candidate Russell Brooksbank, who was accused of assaulting a police officer in September.

Misdemeanor charges of improper signaling and interfering with an officer have been dropped against Brooksbank, a Libertarian running for Indiana’s 9th Congressional District seat, court records show. That came after a judge cleared Brooksbank of charges of assaulting a police officer, which is a felony, earlier this month. The judge found no probable cause to believe that Brooksbank intended to injure the officer during a traffic stop, court records showed.

“I feel that justice was served, and I was lucky that I had good representation,” said Brooksbank, of Clarksville. “I’m hoping that it’s the norm rather than the exception. … I hope that everybody – rich, poor black, white, candidate or not – would have had the same outcome.”

On Sept. 16, a Kentucky State Police trooper stopped Brooksbank on National Turnpike in Louisville for improperly signaling by “using only his middle finger,” according to an arrest citation.

When the officer asked for his driver’s license, proof of insurance and registration, Brooksbank refused and told the officer he was going to record their interaction on his phone. As Brooksbank reached for his phone, the officer asked him again for the documents, and Brooksbank did not hand them over, the arrest citation said.

The officer attempted to take the phone, and Brooksbank reportedly grabbed the officer’s left arm and attempted to pull him into the vehicle. The officer pulled back, ripping Brooksbank’s shirt before he was able to open the door and arrest him, the citation said.

He was booked into Louisville Metro Corrections, held without bond and released the next day, court records show.

Ted Shouse, Brooksbank’s lawyer said dropping the charges was the right move. “The case never should have been brought. It had no business being taken to court. This officer was out of line.”

The Kentucky State Police did not immediately respond to requests for comment.

Brooksbank posted on his Facebook page “Free Russell” around 10 a.m., Monday that the charges against him have been dropped. He also said the judge told him that he can get his record cleared of the changes.

According to Kentucky law, those accused can file a petition before the court to get one or more misdemeanor charges wiped from his or her record. In order for charges to be expunged, the person must not have been convicted of a felony or misdemeanor in the last five years prior to filing the petition.

Concerns grow as jury trials disappear in Kentucky

LOUISVILLE, Ky., (WDRB) – The walls of defense attorney Steve Romines’ office are covered with framed news stories and pictures, a highlight reel of some of the most famous jury trials in Kentucky over the last two decades.

Two men charged with murder for allegedly killing another man and burying him in their basement.

A man impersonating a police officer who called fast-food restaurants and persuaded employees to strip-search and humiliate one another.

A Jefferson County jail officer accused of murdering an inmate by stomping on his head.

“I used to try 12-15 cases a year,” Romines said in an interview. “I’ll try maybe four now.”

That’s because jury trials — the iconic American right to have innocence or guilt be determined by a group of peers – are vanishing at an alarming rate in Kentucky and across the country.

In the last decade, the number of felony jury trials in Kentucky has fallen more than 60 percent, from 734 in 2005 to 289 in 2015, according to the state Administrative Office of the Courts.

The drop is not isolated to criminal cases. Civil jury trials also fell 60 percent across Kentucky during the same time period, from 292 to 118.

It’s really a bad thing because win or lose, the input of citizens is a critical check on the government

The decline is even more significant in federal court where the number of trials in U.S. District Court in Louisville fell from 27 ten years ago to only three so far this year.

All of this comes while the number of total cases has stayed about the same.

Chief Jefferson Circuit Court Judge Charlie Cunningham joked that while people refer to him as a trial judge, he says a more fitting title now would be “pre-trial judge,” as most disputes now are settled well before a jury hears evidence.

Cunningham said he had only four to five trials last year and maybe three so far in 2016, far less than in past years.

“It’s been absolutely bizarre,” he said.

Jefferson County figures show criminal trials have dropped from 115 in 2005 to 54 last year, a 53 percent decrease in the last decade. The civil trials dropped 60 percent, from 73 to 29.

Some attorneys, judges and legal experts, both locally and nationally, see the plummeting trial numbers as an ominous trend that allows justice to be dispensed behind closed doors.

“It’s really a bad thing because win or lose, the input of citizens is a critical check on the government,” said Louisville defense attorney Ted Shouse. “It’s absolutely critical for the citizenry to ride heard on the government. One way they do this” is through jury trials.

Trials also are used as a standard for negotiating criminal plea bargains and civil lawsuits, a benchmark of what a case is worth either in prison years or money, said Jefferson Commonwealth’s Attorney Tom Wine.

“Whether it’s a civil or criminal case, whether you are a prosecutor or criminal defense lawyer, you like to talk to your client or victim and decide ‘this is what I think a jury is going to do because this is what a jury has done in the past,’” Wine said. “Not having those jury verdicts can be a disadvantage.”

In a talk before state judges a few years ago, Kentucky Chief Justice John Minton spoke about how the lack of trials affects the development and shaping of laws because of fewer appeals cases.

And it’s a disadvantage for young attorneys, creating a new generation of lawyers who are not getting trial experience.

“I don’t think it bodes well for the future of the remarkable advocates we have today in Kentucky,” said longtime civil attorney Anne Oldfather. “Kentucky has always had marvelous trial lawyers. It’s just hard to get those same kinds of skills now.”

“Roll of the dice”

This trend is not new, especially in civil cases, as a national decline in jury trials has been noted since at least the mid 1980s.

Legal experts have cited many factors, including harsher possible sentences in both federal and state courts, prompting more plea bargains; the growing caseloads for public defenders who handle the majority of cases; and more deference by citizens to police in the wake of the September 2001 terror attacks.

“The love of law enforcement is a strong thing,” Romines said. “Almost by definition, every criminal trial you have to say law enforcement is wrong. You have to question or attack the investigation and a lot of jurors resent the fact that you attack law enforcement.”

Romines, among others, argues that defendants are more “risk averse” because sentencing guidelines have gotten tougher, making it a dangerous “roll of the dice” to go to trial.

Ed Monahan, head of the state’s Department of Public Advocacy, said that for every defendant with a felony conviction, prosecutors can add a charge of “persistent felony offender” to new cases, adding a stiffer penalty if convicted and inflating the “prosecutor’s already extraordinary power over punishment.”

And Monahan agreed that public defenders, “who are the pack mules of the system, have workloads that impair their ability to try cases.”

Robert Lawson, a University of Kentucky law professor who helped write the state’s 1974 penal code, wrote in a 2009 Kentucky Law Journal article that “tough-on-crime measures,” such as the persistent felony offender charge, had given prosecutors the upper hand.

“An adversarial balance that once dominated the criminal justice system has been victimized by unprecedented, unguided, and largely unchecked prosecutorial discretion to dictate sentences, evidenced most clearly by the ever increasing percentage of cases resolved by guilty plea and a virtual disappearance of the criminal trial, a troubling and largely unexplored phenomenon,” Lawson wrote.

In addition, the quality of evidence in criminal cases is often more definitive as a result of police body cameras, pervasive security surveillance video, iPhone recordings and advancements in DNA testing.

“All those things that make for a better case make it less likely that it will go to trial,” Wine said. “So what you end up with is those cases that don’t have that type of proof that go to trial.”

In civil court, there are fewer trials because more cases are being settled through mediation and arbitration. Mediation allows both sides to come to an agreement with the help of a mediator – typically a retired judge – without going through the expensive process of taking a case in front of a jury.

“I refer every civil case to mediation,” Jefferson Circuit Court Judge Barry Willett said. “It saves time, energy and particularly money.”

Shannon Ragland is publisher of the Kentucky Trial Court review, which documents the verdict in most civil jury verdicts in the state for subscribers, mostly lawyers. Attorneys considering settling cases often turn to Ragland’s publication to see what value juries have for every conceivable type of lawsuit.

Ragland said the number of civil trials in Kentucky fell from 340 around the time he started in 1999 to 86 last year, a 75 percent decrease.

“I publish this in six states and it’s pretty much the same,” he said. And he agreed that mediation and arbitration are responsible for a chunk of that drop, but it doesn’t explain why the numbers have been consistently falling since the mid-1980s.

“I don’t know that the answer is clear,” he said. “This is how I make a living and I’m not sure.”

One thing that is sure, Romines said, is that there is no sign the trend is going to change.

“The right to a jury trial is so fundamental to the criminal justice system,” he said. “It’s disappearing and when it’s gone you can’t get it back.”

Judge drops charge against Indiana candidate

A judge Monday dropped an assault charge against an Indiana candidate for Congress who was arrested recently after being involved in a confrontation with a Kentucky State Police officer.

The judge said there was no probable cause to believe that Russell Brooksbank, a Libertarian running in Indiana’s 9th district, intended to injure the officer during the Sept. 16 stop.

“I think it was completely appropriate ruling,” said Ted Shouse, Brooksbank’s attorney. “It was never Mr. Brooksbank’s intention to harm the officer and the judge recognized that today.”

Brooksbank is pleading not guilty to charges of improper or failure to signal and interference with an officer. He is due back in court Oct. 24.

On Monday around 8:30 a.m., Brooksbank posted on Facebook Live before the court hearing and later posted that Jefferson County District Court Judge Anne Haynie asked if he wanted to enter a plea to get his charges “down to disorderly conduct.” He also confirmed on Facebook that the assault charge was dropped.

“This proves that the legal system does work and that my opponents were quick to judge and quick to convict me,” Brooksbank said an interview Monday. “I don’t know if people of the 9th district want people to represent them that have no idea of the ideal of innocent until proven quality. I wish they would have waited to see what all the facts were to make up their mind.”

According to a Jefferson County arrest citation, Brooksbank was stopped by police along National Turnpike the morning of Sept. 16 after the officer pulled him over for improperly signaling by “using only his middle finger.”

During the stop, Brooksbank, of Clarksville, Ind., was asked for his driver’s license, proof of insurance and registration, the citation said. Brooksbank refused and told the officer he was going to record the interaction on his phone.

As he reached for his phone, the officer reportedly asked him three more times to provide the information. Brooksbank did not follow instructions, the citation said, and the officer attempted to take the phone.

As the officer reached for the phone, Brooksbank grabbed the officer’s left arm and attempted to pull him into the vehicle, the citation said. It added that the officer pulled back, ripping Brooksbank’s shirt before he was able to open the door and arrest him, the citation said.

Brooksbank was booked into Metro Corrections on charges of third-degree assault of a police officer, obstruction/interference with a police officer, and failure to or improper signal, court records showed. He was held without bond and was released from jail early the next day.

He continues to collect donations to help fund his legal representation in the case. On a Facebook page titled “Free Russell,” a link to the Brooksbank Defense Fund, an account where people can donate, was posted last month.

If convicted, Brooksbank would legally be allowed to run and hold office, according to Indiana election guidelines. He is running against Democrat Shelli Yoder and Republican Trey Hollingsworth in the race for the 9th district, which includes Harrison, Floyd and Clark counties.

Defense Protests Last Minute Evidence In Sexual Assault Case

Jury duty no-shows in Louisville may get their day in court

LOUISVILLE, Ky. (WDRB) – In order to get the required 120 people to show up for jury selection in Brian Edmonds’ capital murder trial in recent weeks, Jefferson County’s jury administrator told court officials she would have to send out 800 summonses.

Why so many?

Some people in Louisville simply ignore or forget about responding to the summonses or showing up for jury duty.

And it’s been an open secret in the courthouse for years that there are no real ramifications for skipping jury duty, even though people who ignore the summonses are supposed go before a judge for a possible contempt charge, under Kentucky law.

But that may soon change.

In the next few weeks, Jefferson County’s 13 circuit court judges will vote on whether to reinstate “show cause” orders — letters sent to citizens who don’t respond to jury summonses ordering them to show up to court or face a possible contempt charge.

It was a ‘wow’ moment

“Right now it’s a volunteer jury, essentially,” defense attorney Ted Shouse said in an interview. “You get people who can afford to come, or want to come. People for whom it would be an inconvenience face no penalty for not coming.”

As a result, Shouse, who represented Edmonds along with attorney Annie O’Connell, said juries in Louisville do not represent a broad section of the community.

At Shouse’s request, the judge in the Edmonds case, Mary Shaw, agreed to have show cause letters sent out to citizens who didn’t reply to their jury summons.

After the letters went out, Shouse said, the response rate was about double what it normally is, and with a more representative jury panel of 33 percent African Americans – far above the average of about 13 or 14 percent. Four minorities made it on the final jury.

“It was a ‘wow’ moment,” Shouse said of seeing the racial make-up of the jury panel. “Brian Edmonds is black. He is entitled to a jury that reflects the community that is going to sit in judgment of him.”

Under Kentucky law, what happened in the Edmonds case is supposed to be the typical jury process, Shouse said.

People who fail to appear for jury duty are supposed to be ordered to court to tell a judge why they didn’t appear. If they don’t have a legitimate reason, they can be held in contempt, resulting in possible fines or jail time.

But taking such action has been a rarity in Jefferson County for several years.

“That hasn’t been done in a long period of time,” Jefferson Circuit Court Judge Mitch Perry told a defense attorney asking about the show cause orders in a recent trial.

“If they didn’t send the letter, they are not following their own rules,” defense attorney Rob Eggert told Perry. “The letter causes people who didn’t initially respond to respond.”

The failure to follow the jury summonsing procedure – which also includes having a sheriff personally serve citizens who fail to respond — was unsuccessfully challenged in a 2008 Kentucky Supreme Court ruling.

Minor errors in jury selection are not enough to overturn a case, the high court ruled. And the jury process is meant to “ensure that the court has enough jurors present,” which Jefferson County is successful at doing, the court noted.

Janet Irwin, jury administrator for Jefferson County, said it is too expensive and time-consuming to send out show cause letters in every trial, especially given the high case load in Louisville.

“It’s not cost effective, at all,” she said, noting that more court staff and deputies would be needed if the judges rule to send out the orders.

Chief Jefferson Circuit Court Judge Charlie Cunningham agreed that the show cause letters might be too expensive to send out before every trial, noting that there is not a problem getting enough jurors without the orders.

“A strong argument could be made that any expenditure along those lines might not be appropriate,” he said. “It really comes down to the bang we are getting for our buck.”

Cunningham said the circuit court judges will vote later this month or next month on whether to start sending the show cause orders.

When Shouse was trying to get show cause letters sent out in the Edmonds case, he said he ran into resistance because of the cost.

“Clearly the cost of postage should not impact the quality of justice you get in Jefferson County,” he said.

“Don’t blow it off”

The issue of contacting citizens who don’t respond to summonses or show up for jury duty has been revived in the last several months, as the race of jurors has become a much-discussed issue in Jefferson County.

At the request of Commonwealth’s Attorney Tom Wine, the state Supreme Court is looking at whether judges have the authority to dismiss juries for having too few black members, as Judge Olu Stevens has done three times in the last year.

Wine has said he is not in “opposition with Judge Stevens on racial diversity” but wants to “preserve the right to juries selected in accordance with the law.”

In an interview, Wine noted that about a decade ago, when he was chief circuit judge in Jefferson County, he sent out show cause orders to jurors who failed to respond.

“Probably disproportionately so, there was a large number of African Americans who came in once they received the show cause order and that’s why I think it’s important,” he said. “if we’re going to have diversity on our jury panels … then everyone who’s summoned needs to show up at the beginning of the process.”

Jefferson Circuit Court Judge McKay Chauvin revived the discussion about show cause letters when he was chief judge last year, talking with the state Administrative Office of the Courts in recent months about how best to renew the procedure.

“We want to make sure people are sufficiently mindful of their obligation,” he said. “We want them to know they have an obligation, so they don’t blow it off.”

Jurors in Jefferson County are selected through an automated system pulled from state databases for driver’s licenses, Kentucky revenue records and voter registration.

People for whom it would be an inconvenience face no penalty for not coming.

The sheriff’s office sends out a summons 30 days before jury duty. Jurors are supposed to reply to their summons within five days. Jurors are paid $12.50 a day for two weeks of service.

There are many reasons why people don’t respond to jury duty – the summons went to a bad address, the citizen forgot or was unable to get off of work, among others.

On Feb.1 , for example, about 250 jurors responded to jury duty out of about 1,400 who were sent summonses, Irwin told court officials in testimony before a trial last week.

“Is there any attempt to contact the people that fail to respond?” defense attorney Sheila Seadler asked Irwin as part of a trial in front of Judge Stevens.

“No ma’am,” Irwin testified.

“Is it an option to respond or not respond,” Seadler asked.

“No,” Irwin said.

But often people don’t respond. And they currently aren’t being held accountable.

“I hate to let people slide who don’t even respond,” Chief Judge Cunningham said. “But if they don’t respond to (the summons), will they respond to the (show cause letter)? We’re going to talk about this.”

Is the death penalty dead in Kentucky?

LOUISVILLE, Ky. (WDRB) – Seven years ago this past November, the state of Kentucky executed Marco Allen Chapman for killing two Gallatin County children and injuring their mother and sister.

No one has been executed in Kentucky since then. And some believe no one will be again.

If Kentucky does execute any of the 33 people currently on death row, the state will have to overcome several obstacles, including a legal challenge that has been pending for years, changing judicial and legislative attitudes and the lack of the necessary drugs or protocol needed for lethal injection.

“In view of the litigation and the inability to get the drug issue resolved, I’m tempted to believe that Kentucky will not ever use the death penalty again,” said former Kentucky Supreme Court Justice Joseph Lambert, now an attorney in Mt. Vernon, Ky. “The number of hurdles is very substantial.”

It’s already been more than five years since Franklin Circuit Judge Phillip Shepherd halted all executions in Kentucky amid concerns about the mental status of condemned inmates and state’s drug protocol used in lethal injections.

And that court case, filed in 2006, isn’t going to be over any time soon.

It’s also been more than a year since Kentucky abandoned a controversial two-drug mix used to execute prisoners, at least in part because a similar process used in botched executions in Oklahoma and Ohio. The hope was to come up with a new protocol within six months.

In July, the Kentucky Attorney General’s office wrote that the state Department of Corrections has “diligently worked on potential changes” to the procedures used to carry out an execution.

But because of U.S. Supreme Court rulings regarding the drugs used in the Oklahoma execution, completing protocol new Kentucky protocol “will take longer than initially expected,” according to court records.

At the time, the attorney general’s office wrote, it’s possible the Department of Corrections will not be able to produce “proposed regulations for public review and comment until sometime in 2016.”

As a result, Kentucky doesn’t possess a protocol or the drug cocktail necessary to carry out executions. Officials with the Department of Corrections did not answer questions on where the issue stands.

“It’s on hold until they develop a new execution protocol, which they will hopefully put a lot of time and thought into before settling on drugs like they did the past time, which are clearly inappropriate for executions,” said David Barron, an assistant state public advocate who represents several Kentucky death penalty inmates.

As the decade-old court case lingers in Franklin Circuit Court, attitudes about the death penalty across the country are changing.

Since 2007, seven states have abolished the death penalty. And just last week, the U.S. Supreme Court declared the death penalty in Florida unconstitutional. The high court ruled that Florida’s system gave too much power to judges, and not enough to juries, to decide whether to impose a death sentence.

In September, United States Supreme Court Justice Antonin Scalia told students at Rhodes College that he “wouldn’t be surprised” if his court ruled the death penalty unconstitutional.

“I think the country is moving in that direction, both judicially and legislatively,” said local defense attorney Ted Shouse.

Since Chapman was executed in 2008 by lethal injection at the Kentucky State Penitentiary in Eddyville, juries in the state have only sentenced four inmates to death. That compares with 13 defendants given the death penalty during a similar period, from 2000 to 2006, according to records from the state Administrative Office of the Courts.

The number of executions in the U.S. last year – 28 executions in six states – was the lowest in nearly 25 years.

Last month, defense attorneys representing a Louisville defendant asked a judge to exclude capital punishment for their client, in part, citing “a shift in the country’s legal attitude toward the death penalty.”

Defense attorneys Shouse and Annie O’Connell filed the motion on behalf of Brian Edmonds, who was convicted of two counts of murder. They argued the nation “is moving towards a consensus that the death penalty violates the ban on cruel and unusual punishments. This court should join that evolving standard.”

Shouse and O’Connell also cited a 2013 American Bar Association study that found about 60 percent of people in Kentucky sentenced to death since it was reinstated in 1976 had their sentences overturned on appeal or were granted clemency.

A judge denied the motion, but Shouse said he believes the U.S. Supreme Court will eventually find the death penalty to be unconstitutional.

“When I became a lawyer 17 years ago, I was interested in doing capital litigation and I wondered then if I would live long enough to see the end of the death penalty in the United States,” Shouse, 48, said in an interview this week. “Now I think I may see it before I retire.”

It is an issue that even has Republicans and Democrats joining sides, in part because of the growing concerns about the cost of the death penalty.

Death penalty cases are costly because they require two public defenders, mental health experts, more filings and motions to the court and extra preparation while requiring a larger panel of potential jurors. And because each potential juror must be questioned individually about their views of the death penalty, jury selection can take much longer than in a typical case. And if a jury does recommend a sentence of death, the case will drag on in appeals for years.

“It costs an enormous amount of money to litigate those cases,” said Lambert, the former chief justice. “To be honest, in most cases, it would be cheaper to keep a convicted murderer in prison for the rest of his life than to litigate the question of death penalty and ultimately succeed in a death sentence down the road.”

The state Department of Public Advocacy has estimated that Kentucky spends as much as $8 million per year prosecuting, defending and keeping death-row inmates in prison.

Last month, Democratic Sen. Gerald Neal pre-filed a bill that would abolish the death penalty in Kentucky. This month, Republican Rep. David Floyd, R-Bardstown, did the same. The measures would replace the death penalty with life in prison without the possibility of parole.

Neal said the issue is gaining more traction each legislative session, and pointed out that lawmakers met in Paducah in 2014 to discuss the controversial topic.

“For different reasons, some on moral grounds, some because of the cost factor, some because they recognize the system is broken,” Neal said of legislators discussing the demise of the death penalty. “I think there is growing understanding that this method of eking out ‘justice’ in this fashion is coming up far short.”

But Kenton County Commonwealth’s Attorney Rob Sanders said “the vast majority of Kentuckians believe the death penalty should be an option in the worst cases. That hasn’t changed.”

He said there is a “small but vocal member of fiscal conservatives who mistakenly think we can save tax dollars by eliminating the death penalty,” but that public defenders would then devote those resources to fighting life without parole cases.

“If you ask Kentuckians if, God forbid, the next Sandy Hook, Boston Bombing, theater shooting, or San Bernardino massacre happens here, should the death penalty be an option, the answer is an overwhelming ‘Yes!’”

New Democratic attorney general Andy Beshear said in a statement that he is a “strong proponent of the death penalty.

“Currently, because there is a stay of all executions entered by Franklin Circuit Court, the Office of the Attorney General is awaiting the next step in the process by the Department of Corrections to write regulations and procedures.”

A spokeswoman for Governor Matt Bevin did not return phone calls seeking comment. A Courier-Journal profile of Bevin in October said he supported the death penalty.

Jefferson Commonwealth’s Attorney Tom Wine said the majority of Kentuckians still support the death penalty – 67%, according to a 2013 Kentucky Bluegrass poll.

And he noted that as recently as 2014, a Jefferson County Circuit Court jury handed down a death sentence for Larry Lamont White, for raping and killing a woman in 1983 – his third murder conviction.

“There are some crimes so heinous … that the death penalty will serve as a deterrent,” Wine said. “It will send the message to our society that this behavior will not be tolerated.”