A Jefferson District Court judge who has clashed with County Attorney Mike O'Connell before has now threatened to sanction prosecutors who file motions in her court asking to force defense attorneys to make any requests to suppress evidence at least 30 days before trial.
The County Attorney's office has filed a petition in Jefferson Circuit Court asking a judge to prohibit District Judge Stephanie Pearce Burke from punishing prosecutors who file the motion. A hearing date has not yet been set.
Last year, in hopes of stopping what Jefferson County Attorney Mike O'Connell calls a "despicable practice" by defense attorneys, his office began asking judges to force the defense to file these suppression motions before a trial begins and jeopardy attaches, meaning prosecutors are prohibited from trying the defendant again for the same crime.
But in November, Burke told WDRB she had 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 cannot change the rules of evidence," Burke said in an interview at the time. "We must adhere to the rules as they are."
On Feb. 11, 2014, according to court documents, Burke wrote that any further motions would be a violation of local criminal rules and prosecutors would be sanctioned.
"I have put you on notice that if you continue to ask, I will sanction you accordingly," Burke said during a court hearing, according to the petition filed by the county attorney's office.
On Feb. 11, Burke wrote in a driving under the influence case that under state law, defense attorneys can make a request to suppress evidence any time before or during a trial.
And she said the motions by prosecutors are not "warranted by existing Kentucky law or any good faith arguments" and can be considered a violation of criminal rules and subject to sanction.
Bill Patteson, a spokesman for the county attorney's office, said no prosecutors have filed any of the suppression motions in Burke's court since Feb. 11. He declined to comment further.
Burke is the only judge to have threatened the sanctions and other judges have granted the suppression motions, according to the petition filed by O'Connell's office asking a circuit court judge to prohibit Burke or any other district judge from sanctioning the office.
The County Attorney's office claims that Burke is abusing her power and placing an "impermissible restriction" on prosecutors' ability to file motions in court.
Burke declined to comment on Wednesday.
The suppression motions come about 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 December 2012, O'Connell asked judges to address what he called "a very serious and unnecessary situation" by changing local court rules to bar the tactic.
On Dec. 12, 2013, O'Connell wrote Chief District Judge Ann Bailey Smith about changing the local court rules in connection with these pre-trial motions.
O'Connell's office has also 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."
This is not the first time Burke and O'Connell have clashed.
Burke has also said O'Connell's decision to allow his prosecutors run for judge while still working for the office is "totally politically motivated," accusing him of targeting judges "who he feels do not succumb to his political pressures."
O'Connell has denied that, saying he has not had any say in who his prosecutors decided to run against.