LEGAL UPDATE OCTOBER 2019

It is October 18, 2019. This ordeal for John Buckley and his family began over Memorial Day in 2010. That night, he was wrongfully accused of sexual assault by a woman who introduced him to bondage, domination, sadism and masochism. When John decided he no longer wanted her in his life and told her their relationship was over, she accused him of rape. John was convicted because of the video tape from that last sexual encounter, and sentenced to 34 years in prison in October 2013.

John filed an appeal of right for constitutional violations, but the KY Supreme Court denied that appeal. Then (and only then) could his legal team begin appealing the ineffective actions of his legal counsel. But that is a long, and lengthy procvess. It began in 2016, and both the trial court and the KY Court of Appeals have denied his request for ann evidentiary hearing so John could present the reasons why his attorney did such a miserable job.

John’s superb legal counsel (Dan Canon…we are very grateful to him, particularly since no other KY lawyer would touch this case) filed John’s second appeal to the KY Supreme Court today, for ineffective assistance of counsel. All we are asking for is a hearing to determine the facts of what trial counsel’s strategy was. As Dan outlined in John’s legal brief, there are four fundamental questions that the KY Supreme Court needs to consider:

  1. If a criminal defendant, …presents both factual evidence and scholarly sources to suggest that trial counsel completely failed to present a critical aspect of his defense, is the trial court required to hold an evidentiary hearing on that claim? If not, under what similar circumstances would it be incumbent upon the trial court to hold a hearing?
  2. In a rape case, may a trial court, without an evidentiary hearing, assume trial counsel was effective if he does not present evidence at trial which tends to establish that the contact between the defendant and alleged victim was consensual, and does not present any credible strategic reason for failing to do so?
  3. In a rape case in which defendant claims that violent sexual encounters were consensual and not unusual between the defendant and the alleged victim, is trial counsel ineffective if he does not retain an expert witness to explain the nature of the well-documented form of sexual relationship the two parties engaged in, and does not present any credible strategic reason for failing to do so? Can a court make this determination without an evidentiary hearing?
  4. What precisely is the threshold for showing how trial counsel’s performance “would have affected the outcome” of a trial a defendant required to trigger an evidentiary hearing under KY law and US Supreme Court requirements? In other words, how exactly is a defendant supposed to show that a defense that was omitted or improperly presented at trial, especially for appellate court purposes, if a trial court refuses to hold an evidentiary hearing?

What exactly did John’s defense counsel miss? Here is the list, as recited by Mr. Canon to the KY Supreme Court today.

Buckley’s trial counsel made a number of prejudicial errors throughout the trial. Space does not permit discussion of all of those errors here, but the most pertinent ones are discussed below.

In the trial phase:

(1) The trial attorney allowed the Commonwealth to prepare the “snippets” of videos meant to show the similarities between the May 29, 2010 video and other videos of Buckley and the alleged victim having BDSM sex. However, the Commonwealth hand-selected snippets which did not show similarities at all. John’s trial counsel allowed the Commonwealth to say that the defense provided the videos even though the trial attorney did not even watch them before they were shown to the jury.

(2) The trial attorney broke off his cross examination of the alleged victim before he had covered all of the topics he and Buckley had planned for him to cover because, as he told the court at the judge’s bench with the prosecution there with him, he was “tired of this.”

(3) The trial attorney did not prepare Buckley for direct or cross examination – in fact, he spent no time at all with his client prior to trial prepping him for this horrific ordeal of being tried for sexual assault and other charges based upon this “attack”..

(4) The trial attorney failed to enter a single exhibit into evidence the entire trial.

(5) The trial attorney failed to call, or even to investigate, any expert witness who could explain the nature of BDSM, polyamorous relationships, the implications (or lack thereof) of gun ownership, or the implications (or lack thereof) of prior military service as it relates to propensity for violence. John’s cpombat experience, coupled with the fact that he lawfully owned weapons, were used against him throughout trial.

In the sentencing phase:

(1) The trial attorney failed to present any mitigating evidence or mitigating witnesses for Buckley apart from allowing his father to ask for mercy.

(2) The triak counsel did not present an expert witness to testify as to Buckley’s PTSD, traumatic brain injury, or process of acclimating to civilian society for the purpose of receiving leniency from the judge or jury.

Buckley was found guilty on all counts on July 12, 2012, and ultimately sentenced to 34 years in prison. None of trial counsel’s errors, nor the reasons underlying them, are sufficiently explained on the face of the record.

Under the standards used for John is his trial, every combat veteran of his generation should be concerned that he could suffer a false accusation of assault, and have his honorable military service, or even his lawful ownership of firearms, used against him.

The latest filing will trake anywhere from six months to two years to be heard by the KY Supreme Court. If the Court accepts the case (which they rarely do in cases of this sort), there will be an oral argument before the Court…all to decide if John gets an evidentiary hearing before the trial court regarding his trial counsel incompetence. If the hearing is had, the trail court could deny that the legal counsel acted improperly. And then it starts all over again…MY Court of Appeals, KY Supreme Court, and finally, for the first time, a US Federal District Court. We could easily be 15 years into John’s 34 year sentence then.

We pray for justice in John’s case. We pray for a miracle of God because we know that is possible. We also know God works through good people who will care, speak up to this injustice and also share John’s story with anyone who might be able to make a difference.

With much gratitude!

John C. Buckley III, MA, JD