The Hardin Family Lawsuit against Commonwealth of KY., et al; filed May 14, 2003; Page 22

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child here in this court pursuant to the indictment. (TAPE No. 078-1; 12/12/00; 15:17:45 - 15:18:57) Footnote #1

B. At that point, Judge Shake determined that it was appropriate to question prospective jurors concerning their ability to consider the full penalty range. (TAPE No. 078-1; 12/22/00; 15:22:35 - 15:22:55) But Judge Shake was cognizant of the possible confusion caused by the Commonwealth and initially seemed inclined to delineate the specific penalty range for murder. (Id.) However, the Commonwealth vehemently objected to this proposal, arguing that this additional information would somehow poison the jury. (Id. At 15:22:55 - 15:23:33) But, defense counsel reiterated the need for honesty and accuracy in this issue of a child.

Defense:
"I guess I’m objecting to the Commonwealth totally focusing on sentencing in the voir dire, and then when I am coming up here to say he needs to tell them what the penalty is based on the indictment for intentional or wanton, then he doesn’t want to be specific. It’s like wanting to have your cake and eat it, too. It’s like, ‘I want to tell these people that, you know, this can go all the way down to one year.’ Well, that’s all within the court’s discretion on whether you accept my instruction for reckless homicide based on the evidence that’s going to be presented. And at this point to say, ‘oh no, he could get one year.’ He can’t get one year for intentional murder."

Commonwealth:
"I said homicide statutes. I didn’t say intentional statutes."

Judge Shake:
"He didn’t say intentional murder. He said homicide statutes."

Footnote #1 : Although the name of the case referenced by both the defense and the Def. Prosecutors is not mentioned at this point in the record, it later becomes evident that they are discussing Shields v. Commonwealth, Ky 812 S.W.2d 152 (1991). (See TAPE No. 078-1; 12/12/00; 1:25:02 - 16:25:57)

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