By Jason Riley – bio | email

Posted: Nov 20, 2013 4:37 PM CET Updated: Nov 20, 2013 5:41 PM CET

LOUISVILLE, Ky., (WDRB) — In hopes of stopping what Jefferson County Attorney Mike O’Connell calls a “despicable practice” by defense attorneys, his office has recently begun asking judges to force the defense to file motions to suppress evidence at least 30 days before trial.

O’Connell has complained that District Court judges allow defense attorneys to file motions to suppress evidence after trials began – once jeopardy attaches, meaning prosecutors are prohibited from trying the defendant again for the same crime.

“We just want a level playing field,” O’Connell said in an interview Tuesday. “It’s patently unjust and unfair that these motions are not required to be made before trial.”

But defense attorneys, and some judges, say O’Connell’s request goes against criminal procedures set out by the state Supreme Court.

“The rules aren’t written for the convenience of the county attorney,” defense attorney Ted Shouse argued before a judge Tuesday in a shoplifting case. “This is an extraordinary motion they are making. They are asking to change the rules of criminal procedure.”

Shouse told District Judge Annette Karem that the county attorney’s office has been making the request in “every single case,” using boiler-plate language.  Karem did not make a ruling Tuesday.

O’Connell agreed that the motions are being made in every case, though he said the problem is exploited by defense attorneys the most in driving under the influence trials.

The motions come less than a year after O’Connell wrote to district court judges complaining about what he called “disingenuous maneuvering” by defense lawyers in drunken driving cases.  He said the motions to suppress evidence should come before trial, as long as the defense knows about the issue, giving the prosecution an opportunity to appeal the ruling if necessary.

In the letter from last December, O’Connell asked judges to address what he called “a very serious and unnecessary situation” by changing local court rules to bar the tactic.

Shouse and other defense attorneys say requiring them to file suppression motions 30 days before trial goes against the rules of criminal procedure set by the state Supreme Court, which allows the defense to make a motion to suppress “anytime, even during trial,” Shouse told Karem. “I’m not sure this court has the authority to grant this motion.”

And in an interview, District Court Judge Stephanie Burke agreed, saying she has a standing order denying the motions by prosecutors because the rules of criminal procedure allow the defense to ask to suppress evidence at any time.

“We can not change the rules of evidence,” Burke said in an interview.  “We must adhere to the rules as they are.”

O’Connell argues that the judge has the “inherent authority to establish” their own procedural rules and pointed out that a federal court rule requires motions to suppress evidence be made before trials start. O’Connell argues that the rule for state court is designed to address instances in which previously unknown evidence arises.

Prosecutors have been filing the motions for the last few months, though O’Connell’s office knows of only one instance in which a judge granted the request. And in that case, both the defense and prosecution agreed that all motions to suppress would be submitted 20 days before trial.

Earlier this month, O’Connell’s office asked the state Supreme Court to amend the criminal rule to require motions to suppress evidence be made at least 20 days prior to trial.

The proposed amendment, sent to Supreme Court Justice Will T. Scott on Nov. 8, would also require judges to decide “every pre-trial motion before trial unless it finds good cause to defer a ruling.”

“Simply put, our rules should encourage the making of motions at the earliest possible time for prompt resolution rather than at the latest possible time after the attachment of jeopardy in a criminal case,” O’Connell wrote.

Commonwealth’s Attorney Tom Wine has also asked the Supreme Court for the same change in the criminal rule.

Wine said the circuit court actually has a local rule that requires suppression motions, among others, to be filed prior to trial, though he said it doesn’t override the state rules if defense attorneys pushed the issue.

Wine is asking that the Supreme Court amend the criminal rule so it will be uniform with the local circuit court rule and prosecutors won’t “be caught by surprise” during trial.

O’Connell said local attorneys don’t make such motions for suppression during trial in circuit court because those judges wouldn’t allow for it.

“This is a game defense attorneys play in Jefferson District Court that is not played in circuit court,” he said.

O’Connell has said it is a significant reason why there is a high acquittal rate in DUI cases tried by District Court judges. In particular, O’Connell has said attorney Paul Gold has won many trials by asking a judge to suppress evidence – such as the statements a defendant made or breathalyzer test results – during the trial rather than before, giving prosecutors no chance to appeal the ruling.

O’Connell said that those motions would be known about long before trial and “one way judges can stop the abuse of rules” is to declare a mistrial when such a suppression issue comes up, hold the suppression hearing and set a new trial date.

In an interview Gold said he is fighting several of the motions in DUI cases he is handling, all of which are pending, arguing it is clearly against the Supreme Court criminal rules.

In a motion asking a district court judge to deny the motion, Gold said a defense attorney asking a judge to suppress a statement of a defendant at trial because he wasn’t read his rights by police was not “sandbagging,” as O’Connell has said, but “incompetence” on the part of prosecutors.

“Prosecutors who come to trial unprepared to carry this burden cannot legitimately complain that they were treated ‘unfairly’ by a court’s adverse decision,” he wrote.

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