Sanborn v. Commonwealth

GANT, Justice,

dissenting.

In my opinion, there was more than an adequate showing of cause for failure to file the briefs herein in the allotted time period.

A history of the practice of motions for extension of time is in order at this juncture. The revival of the death penalty in Kentucky occasioned a tremendous responsibility in the Office of Public Advocacy, but did not occasion a comparable increase in staff. The result was a flood of motions to this court for short extensions of 60 to 90 days. After conference between the OPA and this court, it was determined that under no circumstance should a fixed period of extension be requested until the record had been examined and an estimate of required time had been made. This came as a result of repeated instances where extensions had been moved for without even a reference to the record.

No express policy was formulated concerning death penalty cases except that this court consistently granted and conceded that length requirements would be waived. However, at no interval was the Public Advocate informed that the initial extension would be a final one in death penalty cases, irrespective of length of record, number of exhibits, number of potential errors, etc.

The ability to schedule time by a private practitioner and a public officer is vastly different. For example, in the instant case, both attorneys completed and filed briefs in another death penalty case. One attorney who had originally been assigned the case left the employment of the OPA, causing Julie Namkin to be switched from another case. Mr. Aprile had to replace another resigning attorney at a capital offense trial in Christian County. The public defender has no control over his case load, the gravity of his cases, or the number of attorneys available for assignment, and is unable to refuse to accept one case while another is pending. Often, the attorney assigned the appeal was not involved at trial.

To expect absolute accuracy in estimating the preparation time for a case of this magnitude upon a 30-day examination of thousands of pages of transcript is patently unfair when the circumstances of underpaid, highly motivated public attorneys are considered. Cause for delay was clearly shown. There was absolutely no contempt of the order of this court when it was apparent that both these attorneys had done all within their power. To punish them for waiting until the last day is a new concept in law. There has been no harm done and no malice shown. The show cause order should never had been made a part of the original extension but used only if additional time was requested.

WHITE, J., joins in this dissent.