Archive for November, 2006

No-Knock warrants and Kentuckys new No Duty to Retreat Self-Defense statutes are a dangerous combination.

Thursday, November 30th, 2006

   In November two cases were in the national news involving situations where police shot and killed people they were trying to arrest.  In both cases the issue of whether the person whom the police were attempting to arrest were adequately advised that the person confronting them was a police office.

   In one case the police had obtained a No-Knock search warrant and broke down the door of a 90 year old woman.  When the police broke down her door she  responded with gunfire.  The police returned her fire and killed the woman.  The police were acting on a tip that a man at that residence had previously sold drugs there.  There is no evidence that the old woman had a man living at the house or had ever sold drugs.

   In New York City undercover officers confronted a man who was attending his bachelor party before his scheduled wedding later in the day.  They police claim they had heard someone in the mans group make a comment that they had a gun in their possession.  The police killed the groom to be and in the process fired 50 shots.  The men attacked by the police were found to be unarmed.

   Both cases when viewed under a new statute adopted by the 2006 session of the Ky. Legislature may place police in danger of being legally shot when attempting to enter a home or effect an arrest if they have not clearly identified themselves as police officers.
See: KRS 503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle –Exceptions.  and KRS 503.050 Use of physical force in self-protection

The United States Supreme Court held long held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. . Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995)

A number of exceptions to the duty to Knock and Announce has been discussed in Ky. rulings.  See Adcock v. Commonwealth below.   Another recent case by the Ky. Supreme Court limited the use of police ruses to gain entry without a warrant.  See: Krause v. Commonwealth.

    The new versions of KRS 503.055 and KRS 503.055 were adopted to give homeowners and occupiers of motor vehicles the right to use deadly force against
“attacks? on the occupant.  

So we find that while the police are granted the right to break down a door and then announce that they are police in certain types of cases, we have the legislature giving more rights to citizens to use deadly force against intruders.

The key to these cases is the proper identification of the police officer as a police officer.
The use of non-uniformed undercover officers to effect the No Knock warrants, or to attempt to stop a motor vehicle has become a highly dangerous enterprise for both the policeman and the citizen who can now fire away without having to try to withdraw.

It is commonplace in such cases that the police claim they announced they were police, but the citizen never heard the announcement or was to frightened by the breaking down of their door to properly evaluate that announcement.

 We would submit that the use of No Knock warrants should only be effected by uniformed officers, and they should make a very serious commitment to their duty to announce who they are…if for no other reason than for their own safety.

It remains the duty of the reviewing court to determine the reasonableness of the No Knock entry.   See: Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 1421-1422, 137 L. Ed. 2d 615 (1997). The Court in Richards  noted,  that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.” Id.
KNOCK AND ANNOUNCE RULE DISCUSSED:

Adcock v. Commonwealth of Kentucky, 967 S.W. 2000 (KY, 1998)
 
Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), the United States Supreme Court held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Id. at 933, 115 S. Ct. at 1918. The knock and announce rule has three purposes:
(1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and
(3) to protect people from unnecessary intrusion into their private activities. Id.

[22]     However, “that is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Id. at 934, 115 S. Ct. at 1918. The Wilson court left “to the lower courts the task of determining the circumstances under which an unannounced entry, under the Fourth Amendment, is reasonable.” Wilson, 514 U.S. at 936, 115 S. Ct. at 1919.

[23]     The Court has recognized that the knock and announce requirements could yield when exigent circumstances are present. “In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 1421-1422, 137 L. Ed. 2d 615 (1997). The Court in Richards did note, however, that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.” Id.

[24]     Appellant argues that a ruse, like a no-knock entry, may be employed only in the presence of exigent circumstances. Appellant concludes that since none existed in this case, police were bound by the knock and announce requirements. Thus, the issues before this Court are whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in this case, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule. Inasmuch as this jurisdiction has not addressed the knock and announce rule, we look to the federal court and other jurisdictions for guidance.

[25]     A ruse is constitutionally distinguishable from a no-knock entry. State v. Moss, 172 Wis. 2d 110, 492 N.W.2d 627 (Wis. 1992), cert. denied, 507 U.S. 977, 122 L. Ed. 2d 796, 113 S. Ct. 1428 (1993), overruled on other grounds by State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (Wis. 1994). In Moss, officers employed a pizza delivery ruse virtually identical to this case. When the defendant opened the door, officers announced “police, search warrant.” As the defendant attempted to close the door, one officer placed his foot in the doorway to prevent the door from closing, and pushed his way in. In upholding the use of ruse to gain entry, the Wisconsin Supreme Court found that the police action did not constitute a no-knock entry because the officer did, in fact, announce his presence and purpose before entering the defendant’s residence. 492 N.W.2d at 630. Furthermore, the court held that the use of the ruse to entice the defendant to open the door in the execution of a search warrant did not violate the Fourth Amendment or the knock and announce rule because “the reasons behind the rule were satisfied — there was no real likelihood of violence, no unwarranted intrusion on privacy, and no damage to the [defendant's residence].” Moss, 492 N.W.2d at 631; see also Wilson, supra, and Commonwealth v. Goggin, 412 Mass. 200, 587 N.E.2d 785 (Mass. 1992).
[26]     In fact, notwithstanding the presence of exigent circumstances, federal and state courts in interpreting either knock and announce statutes or the common law knock and announce rule are in general agreement that there is no constitutional impediment to the use of subterfuge. Entry obtained through the use of deception, accomplished without force, is not a “breaking” requiring officers to first announce their authority and purpose.

United States v. Salter, 815 F.2d 1150 (7th Cir. 1987); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir. 1993); Hawaii v. Dixon, 83 Haw. 13, 924 P.2d 181 (Hawaii 1996); State v. Myers, 102 Wash. 2d 548, 689 P.2d 38 (Wash. 1984); Commonwealth v. DeCaro, 298 Pa. Super. 32, 444 A.2d 160 (Pa. Super. Ct. 1982); State v. Iverson, 272 N.W.2d *fn1 (Iowa 1978).
… In other words, an entry accomplished without force is not a “breaking” within the meaning of the majority of state statutes, as well as 18 U.S.C. § 3109, and therefore does not implicate the knock and announce rule. “The employment of a ruse to obtain the full opening of the [defendant's] door was not a “breaking.” And since the door was then wide open, the subsequent entry . . . did not involve a ‘breaking’ of the door.” Dixon, 924 P.2d at 187. (quoting Dickey v. United States, 332 F.2d 773 (9th Cir. 1964)).
Ky. Supreme Court rules that Police Lie to gain entrance to residence violated 4th. Amendment.

In a decision that was dissented to by Justices Roach and Wintersheimer, the Ky. Supreme Court established a principal that the police ruses, which have been often approved by the court, can go to far when it effects a coerced consent to search.

TO BE PUBLISHED

2004-SC-001009-DG.pdf
click to read full text

FREDERICK CARL KRAUSE III
APPELLANT
APPEAL FROM COURT OF APPEALS
V.
03-CA-2092-MR
MCCRACKEN CIRCUIT NO . 03-CR-00162-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
Reversing and  Remanding,
 
“the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ."

Appellant, Frederick Carl Krause, III, entered conditional guilty pleas in McCracken Circuit Court to First Degree Possession of a Controlled Substance,
Cocaine ; Use/Possession of Drug Paraphernalia, Second Offense; and Possession of Marijuana. For these crimes, Appellant was sentenced to three days' imprisonment and two and one-half (2'/2) years of probation ....we reverse the Court of Appeals' opinion, vacate  Appellant's convictions and sentence, and remand for further proceedings.

When one of the residents, most likely Appellant, opened the door, Trooper Manar stated that a young
girl had just reported being raped by Yamada in the residence. He asked if he could look around in order to determine whether her description of the residence and its furnishings was accurate.

 The trial court found that Trooper Manar "knew there would be no such evidence because he knew there was no assault. His intention was to gain consent to search for drugs."

Despite finding that "the ruse employed [by Trooper Manar] raises serious Constitutional rights questions and is not an appropriate police practice,” the trial court
ultimately concluded “that Defendants voluntarily consented to a search for evidence of an assault.”

On appeal to this Court, the sole issue for our consideration is whether the consent given by Appellant and his roommate was constitutionally valid. In Cook v.
Commonwealth, 826 S.W.2d 329 (Ky. 1992), this Court stated that “consent is one of the exceptions to the requirement for a warrant.” Id. at 331 (citing United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L .Ed .2d 598 (1976)).

We further indicated that the “test for determining if consent is constitutional is set out in Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S .Ct. 2041, 36 L.Ed.2d 854 (1973).” Id .
In Schneckloth, supra, the Supreme Court held that “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ." Id. at 228, 93 S .Ct . at 2048. Whether consent is the result of express or implied coercion is a question of fact, id, at 227, 93 S.Ct. at 2048, and thus, we must defer to the trial court's finding if it is supported by substantial evidence. RCr 9.78 .

The ruse in this instance was employed for the purpose of gaining consent (1) to make a warrantless entry into a home ; and (2) to conduct a plain view warrantless
search of the residence. Thus, the underlying purpose and policies in this case differ from the purpose and policies in the Adcock case. The guiding factor here is to determine whether this particular ruse frustrated the purpose of the constitutional requirement that consent to make a warrantless entry into and search of a home must be voluntary, and thus, free of implied or express coercion .

Finally, we believe that if the type of ruse utilized by Trooper Manar was sanctioned by this Court, citizens would be discouraged from "aiding to the utmost of
their ability in the apprehension of criminals" since they would have no way of knowing whether their assistance was being called upon for the public good or for the purpose of incriminating them. Schneckloth, supra, at 243, 93 S.Ct. at 2056 (internal quotation
omitted).

Moreover, widespread use of this type of tactic could quickly undermine "the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness." Id. at 225, 93 S.Ct. at 2046.

We are careful to note that our holding is limited and narrow. We do not hold that the use of ruses, in general, is unconstitutional . The United States Supreme Court has long held that "[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States , 287 U.S . 435, 441-42, 53 S.Ct. 210, 212, 77 L.Ed . 413, 416-17 (1932)

Because the record lacks sufficient evidence to support a finding of voluntary consent, the decision of the Court of Appeals is reversed, and Appellant’s sentence and
convictions are vacated. This matter is remanded to allow Appellant to withdraw his guilty pleas pursuant to RCr 8 .09 and for further proceedings consistent with this
opinion.
Lambert, C.J ., Graves, McAnulty, Minton, and Scott, J .J., concur.

 DISSENTING OPINION BY JUSTICE ROACH:
I must respectfully dissent from the majority opinion because it misinterprets the
clear statement of the circuit judge which found that the police were given consent to
search . The order denying the motion to suppress evidence entered on July 25, 2003
clearly states that the defendants gave consent for the police to search for evidence of
an assault.: Under all the circumstances, I believe that consent was given and that this
judgment of conviction should be affirmed in all respects.
Roach, J ., joins this dissent.

DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because it misinterprets the
clear statement of the circuit judge which found that the police were given consent to
search . The order denying the motion to suppress evidence entered on July 25, 2003
clearly states that the defendants gave consent for the police to search for evidence of
an assault.
Previous article on this topic.
Ky. Sup. Ct. will consider if police can lie to gain entry to home.
The Courier-Journal in a feature story by Andy Wolfson reports that the Ky. Supreme Court will hear oral arguments on the issue of whether the police can lie to gain entry to a home.  In a McCracken County case, a detective told  Frederick Krause III, that the a small girl had said she had been sexually abused in his home and the officer wanted to check out the furniture and bedding.  This was a fabrication and the intent of the search was to look for drugs.  The officer found drugs and made the arrest.  This issue raises questions if consent can be voluntary when it is procured as the basis of a ruse.
 Several prior decisions of the Ky. Supreme Court tend to predict that court will allow ruse to justify search.
 
Adcock v. Com., 967 S.W.2d 6 (Ky., 1998)
W]hen police officers execute a search warrant on a personal residence by conducting a successful ruse that results in the occupant voluntarily opening the door which is followed by the officers announcing their identity and purpose prior to entering the home, these actions are reasonable within the requirements of the Fourth Amendment.
        This Court granted discretionary review. Additional facts will be set forth as necessary in the course of the opinion.
        As noted by the Court of Appeals, RCr 9.78 provides the procedure for conducting hearings on suppression motions, as well as the standard for appellate review of the trial court’s determination. “If supported by substantial evidence the factual findings of the trial court shall be conclusive.? RCr 9.78. When the findings of fact are supported by substantial evidence, as we conclude they are herein, the question necessarily becomes, “whether the rule of law as applied to the established facts is or is not violated.? Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996) (citing Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19, 102 S.Ct. 1781, 1791, n. 19, 72 L.Ed.2d 66 (1982).
        Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the United States Supreme Court held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Id. at 933, 115 S.Ct. at 1918. The knock and announce rule has three purposes: (1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and (3) to protect people from unnecessary intrusion into their private activities. Id.
        However, “[t]hat is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.? Id. at 934, 115 S.Ct. at 1918. The Wilson court left “to the lower courts the task of determining the circumstances under which an unannounced
entry is reasonable under the Fourth Amendment.? Id. at 936, 115 S.Ct. at 1919.
        The Court has recognized that the knock and announce requirements could yield when exigent circumstances are present. “In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.? Richards v. Wisconsin, 520 U.S. 385, —- – —-, 117 S.Ct. 1416, 1421-1422, 137 L.Ed.2d 615 (1997). The Court in Richards did note, however, that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.? Id.
        Appellant argues that a ruse, like a no-knock entry, may be employed only in the presence of exigent circumstances. Appellant concludes that since none existed in this case, police were bound by the knock and announce requirements. Thus, the issues before this Court are whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in this case, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule. Inasmuch as this jurisdiction has not addressed the knock and announce rule, we look to the federal court and other jurisdictions for guidance.
        A ruse is constitutionally distinguishable from a no-knock entry. State v. Moss, 172 Wis.2d 110, 492 N.W.2d 627 (1992), cert. denied, 507 U.S. 977, 113 S.Ct. 1428, 122 L.Ed.2d 796 (1993), overruled on other grounds by State v. Stevens, 181 Wis.2d 410, 511 N.W.2d 591 (1994). In Moss, officers employed a pizza delivery ruse virtually identical to this case. When the defendant opened the door, officers announced “police, search warrant.? As the defendant attempted to close the door, one officer placed his foot in the doorway to prevent the door from closing, and pushed his way in. In upholding the use of ruse to gain entry, the Wisconsin Supreme Court found that the police action did not constitute a no-knock entry because the officer did, in fact, announce his presence and purpose before entering the defendant’s residence. Id. 492 N.W.2d at 630. Furthermore, the court held that the use of the ruse to entice the defendant to open the door in the execution of a search warrant did not violate the Fourth Amendment or the knock and announce rule because “the reasons behind the rule were satisfied–there was no real likelihood of violence, no unwarranted intrusion on privacy, and no damage to the [defendant’s residence].? Id. at 631; see also Wilson, supra, and Commonwealth v. Goggin, 412 Mass. 200, 587 N.E.2d 785 (1992).
        In fact, notwithstanding the presence of exigent circumstances, federal and state courts in interpreting either knock and announce statutes or the common law knock and announce rule are in general agreement that there is no constitutional impediment to the use of subterfuge. Entry obtained through the use of deception, accomplished without force, is not a “breaking? requiring officers to first announce their authority and purpose. United States v. Salter, 815 F.2d 1150 (7th Cir.1987); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir.1993); Hawaii v. Dixon, 83 Hawai’i 13, 924 P.2d 181 (1996); State v. Myers, 102 Wash.2d 548, 689 P.2d 38 (1984); Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982); State v. Iverson, 272 N.W.2d 1 (Iowa 1978).
        The trial court in this case relied on Salter, supra, in which an officer, posing as a hotel clerk, telephoned appellant’s hotel room and requested her to come to the front desk. When appellant opened the door, officers positioned outside of her hotel room prevented her from closing the door and immediately entered the room. The Seventh Circuit engaged in a statutory analysis and held that there was no “breaking? and thus 18 U.S.C. § 3109 1 was not implicated by entry through an open door. Since the occupant voluntarily opened the door, entry by ‘ruse’ was permissible. See also Contreras-Ceballos, supra (an officer’s use of force to keep open a door that was voluntarily opened in response to the officer’s ruse was not a “breaking? so as to implicate § 3109.)
        We find the recent case of Hawaii v. Dixon, supra, to be factually similar to the case at hand and quite instructive. In Dixon, officers employed a ruse to gain entry into a defendant’s hotel room. Three officers placed themselves on the sides of the defendant’s hotel room door while a hotel security guard approached and knocked on the door. The security guard informed the occupants that he was there to check the air-conditioning. When the hotel door opened, the officers “entered the room simultaneously, announcing ‘in an assertive tone of voice’ that they were the police and ordering [the defendant] to get down.? 924 P.2d at 183. A search of the room produced drugs and paraphernalia.
  
     The Hawaii Supreme Court held that the use of a ruse violated neither statutory law nor the Fourth Amendment because the purposes of the knock and announce rule were not frustrated. Id. at 182. The court first engaged in a discussion of statutory law from various jurisdictions and concluded that entry gained through the use of deception is permissible so long as force is not involved. Id. at 188. In other words, an entry accomplished without force is not a “breaking? within the meaning of the majority of state statutes, as well as 18 U.S.C. § 3109, and therefore does not implicate the knock and announce rule. “[T]he employment of a ruse to obtain the full opening of the [defendant’s] door was not a “breaking.? And since the door was then wide open, the subsequent entry … did not involve a ‘breaking’ of the door.? Id. at 187. (quoting Dickey v. United States, 332 F.2d 773 (9th Cir.1964)).
       After analyzing the Wilson v. Arkansas, supra, standard and a number of opinions from other jurisdictions, the Dixon court further held that the use of a ruse to gain entry did not violate the defendant’s constitutional protections under the Fourth Amendment. Id. 924 P.2d at 189. The Court adopted the reasoning set forth by the Washington Supreme Court in State v. Myers, 102 Wash.2d 548, 689 P.2d 38, 42 (1984):
        The guiding factor in determining whether a ruse entry, to execute a search warrant, constitutes a “breaking? under the Fourth Amendment should be whether the tactic frustrates the purposes of the “knock and announce? rule. Those purposes are: (1) reduction of potential violence to both occupants and police resulting from an unannounced entry, (2) prevention of unnecessary property damage; and (3) protection of an occupant’s right to privacy.
        It appears obvious that a ruse entry, especially when the deception is not realized until after the entry has been accomplished, actually promotes both the purpose of preventing violent confrontation between the officer and the surprised occupant and that of preventing unnecessary property damage. (citations omitted)
        Accordingly, the Dixon court concluded that “[w]here the purposes of the knock and announce rule are not frustrated, and may, indeed, be furthered by the use of a ruse to obtain entry to execute a valid warrant, the tactic is not constitutionally unreasonable and, therefore, not violative of fourth amendment protections.? Dixon, supra at 191.
        Appellant further argues that even if this Court concludes that police may utilize a ruse to gain entry absent exigent circumstances, if such is unsuccessful, the police must still follow the knock and announce rule. “If the ruse employed is unsuccessful and the officers did not gain peaceful entry, then the ‘knock and wait’ rule comes into play.? State v. Ellis, 21 Wash.App. 123, 584 P.2d 428, 430 (1978).
        The flaw in Appellant’s argument is that she believes because the disguised officer
did not gain actual entry into her residence under the guise of a pizza delivery person, that the police did not gain peaceful entry and thus the ruse failed. As such, the officers were required to follow the requirements of the knock and announce rule. We disagree. The ruse was successful because it enticed Appellant to voluntarily open the door in the first place. At that point, the necessity for the ruse evaporated. Officers gained peaceful entry through the open door without having to use any force. As previously stated, such does not constitute a breaking or forceful entry. Although officers may have preferred to have gained access under the pretense of the delivery ruse rather than having to announce their identity, the ruse still accomplished its intended purpose, namely, to prevent Appellant from disposing of the drugs prior to the officers gaining entry into her residence.
        Even if the ruse in this case was unsuccessful, the trial court found that there were sufficient facts to conclude that the officers complied with the requirements of the knock and announce rule. The trial court specifically made the finding that the officers announced their presence prior to entering Appellant’s residence. Moreover, we reject Appellant’s proposition that the officers were required to wait until she specifically denied them access. Waiting would have served none of the purposes of the rule.
Because an occupant, in the face of a valid search warrant, has no right to refuse admission to police, no interest served by the knock and announce rule would be furthered by requiring police officers to stand at an open doorway for a few seconds in order to determine whether the occupant means to admit them.
        State v. Richards, 87 Wash.App. 285, 941 P.2d 710, 713 (1997); United States v. Kemp, 12 F.3d 1140 (D.C.Cir.1994).
        Contrary to Appellant’s assertion, we find nothing in the language of Wilson v. Arkansas, supra, to be inconsistent with the Dixon court’s analysis or our application thereof. The United States Supreme Court, while reiterating the knock and announce rule in the context of the Fourth Amendment, clearly has not foreclosed the use of police deception to gain entry into a residence for the purpose of executing a valid search warrant. Indeed, we agree with the decisions cited herein, that such a tactic, so long as it is accomplished without the use of force, promotes the underlying purposes of the knock and announce rule and is constitutional and reasonable under the Fourth Amendment.
        Accordingly, we hereby affirm the decision of the Court of Appeals upholding the trial court’s order denying Appellant’s suppression motion.
Riley v. Commonwealth of Kentucky, 120 S.W.3d 622 (Ky., 2003)
  Appellant’s “stalking horse? defense is premised upon his assertion that “Operation Night Vision? was a subterfuge to enable other police agencies to conduct unconstitutional searches of parolees’ residences under the guise of a parole officer’s “routine visit.? Prior to the decision in Knights, supra, a majority of federal courts had, indeed, held that a search was unlawful when the probation or parole officer was acting as a “stalking horse? for a police investigation, i.e., when the officer’s visit was but a ruse for an entry and search by the accompanying police officers. See United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994) (?[I]t is impermissible for a probation search to serve as subterfuge for a criminal investigation.?); United States v. Grimes, 225 F.3d 254, 259 (2nd Cir. 2000); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.
1997); United States v. Oolev, 116 F.3d 370, 372 (9th Cir. 1997); United States v. McCarty, 82 F.3d 943, 947 (10th Cir. 1996); United States v. Coleman, 22 F.3d 126, 129 (7th Cir. 1994); Shea v. Smith, 966 F.2d 127, 132 (3rd Cir. 1992). However, in the process of reversing the suppression of evidence seized in a probation search that was for “investigatory,? as opposed to “probationary,? purposes, Knights eliminated the “stalking horse? defense.
        Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.
        Knights, supra, at 122, 122 S.Ct. at 593 (citations and quotations omitted). The Ninth Circuit Court of Appeals has subsequently held United States v. Stokes, 292 F.3d 964 (9th Cir. 2002), that, in light of Knights, “our circuit’s line of cases holding searches of probationers invalid on the ground that they were subterfuges for criminal investigations is, in that respect, no longer good law.? Id. at 967 (overruling Ooley, supra).
        We agree that Knights eliminated the so-called “stalking horse? defense. Thus, we need not engage in a subjective examination of the official purpose behind this particular “Operation Night Vision? visit. We simply hold that the search of the remainder of Appellant’s mobile home did not violate his constitutional right to be secure against unreasonable searches and seizures.

ARTICLE PUBLISHED IN COURIER-JOURNAL:

Ky. court will consider if police can lie Ruse let detective gain entry to home
By Andrew Wolfson  – The Courier-Journal

When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he’d heard drugs were being sold, he knew the occupants probably wouldn’t consent to a search if he said he was looking for narcotics.
So he lied.

He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave.
Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl “Fritz? Krause III.
“I was outraged,? recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. “You would think you could trust authorities to tell you the truth.?
Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia — but on the condition he could challenge the legality of the search.
Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant’s consent to a search can ever be “voluntary? — as required for a search without a warrant — when it is the product of a police officer’s deceit and misrepresentation.
Courts have long held that police may try to trick suspects during interrogations — by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.
But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive.
“Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself,? said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures.

Ruse raises questions

In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.
But Clymer said the ruse raised “serious constitutional questions? and was “not an appropriate police practice.?
Dissenting from a 2-1 decision affirming Clymer’s decision, Chief Court of Appeals Judge Sara Combs called the deception “a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures.?
Manar, who acknowledged in court that he made up the story to get into Krause’s home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn’t comment on the court case, citing bureau policy.
A state police spokesman, Sgt. Phil Crumpton, said the department also couldn’t comment, because of the appeal.
But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that “ruses are a sometimes necessary element of police work.?
In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter — and a self-addressed, stamped envelope — from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample.
“You kind of wince a bit and it’s not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes,? said Louisville Metro Louisville Police Detective Larry Duncan. “I refer to it as a little white lie.?
But police commanders say deception can backfire. “If you tell a suspect you’ve got his prints and he knows he wore gloves? when committing the crime, “he knows you’re lying, and you lose any rapport you’ve build up with him? said metro police Capt. Donald Burbrink.
Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking — because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible.
Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don’t do it.
Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given “freely and voluntarily.?
FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, “our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house.?

Searching for drugs

The events leading to Krause’s conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause’s roommate, Joe Yamada.
Manar knew he didn’t have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar — he wasn’t sure which — that a girl claimed she had been assaulted and that the assault took place at their house.
“I thought that would ease his mind a little more than confronting him with the drugs,? Manar said.
Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room.
Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn’t join the appeal, was placed on probation for three years, and Krause for 2½.
Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because “the right to be secure in your own home has gone out the window.?
His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians.
“If the court upholds this decision,? he said, “the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there.?

Reporter Andrew Wolfson can be reached at (502) 582-7189.

THE NEW 2006 STATUTE:
KRS 503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle –Exceptions.
(1) A person is presumed to have held a reasonable fear of imminent peril of death or
great bodily harm to himself or herself or another when using defensive force that is
intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of
unlawfully and forcibly entering or had unlawfully and forcibly entered a
dwelling, residence, or occupied vehicle, or if that person had removed or was
attempting to remove another against that person’s will from the dwelling,
residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an
unlawful and forcible entry or unlawful and forcible act was occurring or had
occurred.

(2) The presumption set forth in subsection (1) of this section does not apply if:
(a) The person against whom the defensive force is used has the right to be in or
is a lawful resident of the dwelling, residence, or vehicle, such as an owner,
lessee, or titleholder, and there is not an injunction for protection from
domestic violence or a written pretrial supervision order of no contact against
that person;
(b) The person sought to be removed is a child or grandchild, or is otherwise in
the lawful custody or under the lawful guardianship of the person against
whom the defensive force is used;
(c) The person who uses defensive force is engaged in an unlawful activity or is
using the dwelling, residence, or occupied vehicle to further an unlawful
activity; or
(d) The person against whom the defensive force is used is a peace officer, as
defined in KRS 446.010, who enters or attempts to enter a dwelling,
residence, or vehicle in the performance of his or her official duties, and the
officer identified himself or herself in accordance with any applicable law or
the person using force knew or reasonably should have known that the person
entering or attempting to enter was a peace officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any
other place where he or she has a right to be has no duty to retreat and has the right
to stand his or her ground and meet force with force, including deadly force, if he or
she reasonably believes it is necessary to do so to prevent death or great bodily harm
to himself or herself or another or to prevent the commission of a felony involving
the use of force.

(4) A person who unlawfully and by force enters or attempts to enter a person’s
dwelling, residence, or occupied vehicle is presumed to be doing so with the intent
to commit an unlawful act involving force or violence.
Effective: July 12, 2006
History: Created 2006 Ky. Acts ch. 192, sec. 2, effective July 12, 2006.

KRS 503.050 Use of physical force in self-protection — Admissibility of evidence of prior acts of domestic violence and abuse.

(1) The use of physical force by a defendant upon another person is justifiable when the
defendant believes that such force is necessary to protect himself against the use or
imminent use of unlawful physical force by the other person.
 (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.
 (3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.
 (4) A person does not have a duty to retreat prior to the use of deadly physical force.
Effective: July 12, 2006 – History: Amended 2006 Ky. Acts ch. 192, sec. 3, effective July 12, 2006. — Amended 1992 Ky. Acts ch. 173, sec. 2, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 30, effective January 1, 1975.
KRS 503.090 Use of physical force in law enforcement.
(1) The use of physical force by a defendant upon another person is justifiable when the defendant, acting under official authority, is making or assisting in making an arrest,
and he:
(a) Believes that such force is necessary to effect the arrest;
(b) Makes known the purpose of the arrest or believes that it is otherwise known
or cannot reasonably be made known to the person to be arrested; and
(c) Believes the arrest to be lawful.
(2) The use of deadly physical force by a defendant upon another person is justifiable
under subsection (1) only when:
(a) The defendant, in effecting the arrest, is authorized to act as a peace officer;
and
(b) The arrest is for a felony involving the use or threatened use of physical force
likely to cause death or serious physical injury; and
(c) The defendant believes that the person to be arrested is likely to endanger
human life unless apprehended without delay.
(3) The use of physical force, including deadly physical force, by a defendant upon
another person is justifiable when the defendant is preventing the escape of an
arrested person and when the force could justifiably have been used to effect the
arrest under which the person is in custody, except that a guard or other person
authorized to act as a peace officer is justified in using any force, including deadly
force, which he believes to be necessary to prevent the escape of a person from jail,
prison, or other institution for the detention of persons charged with or convicted of
a crime.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 34, effective January 1, 1975.

 

Seven million, or one in every 32 American adults, is behind bars, on probation or parole

Thursday, November 30th, 2006

By KASIE HUNT Associated Press


 WASHINGTON (AP) — A record 7 million people – or one in every 32 American adults – were behind bars, on probation or on parole by the end of last year, according to the Justice Department. Of those, 2.2 million were in prison or jail, an increase of 2.7 percent over the previous year, according to a report released Wednesday. 


 View U.S. Justice Department Bureau of Criminal Statistics reports at:  http://www.ojp.usdoj.gov/bjs/
 More than 4.1 million people were on probation and 784,208 were on parole at the end of 2005. Prison releases are increasing, but admissions are increasing more.
Men still far outnumber women in prisons and jails, but the female population is growing faster. Over the past year, the female population in state or federal prison increased 2.6 percent while the number of male inmates rose 1.9 percent. By year’s end, 7 percent of all inmates were women. The gender figures do not include inmates in local jails.


 “Today’s figures fail to capture incarceration’s impact on the thousands of children left behind by mothers in prison,” Marc Mauer, the executive director of the Sentencing Project, a Washington-based group supporting criminal justice reform, said in a statement. “Misguided policies that create harsher sentences for nonviolent drug offenses are disproportionately responsible for the increasing rates of women in prisons and jails.”


 From 1995 to 2003, inmates in federal prison for drug offenses have accounted for 49 percent of total prison population growth.


 The numbers are from the annual report from the Justice Department’s Bureau of Justice Statistics. The report breaks down inmate populations for state and federal prisons and local jails.


 Racial disparities among prisoners persist. In the 25-29 age group, 8.1 percent of black men – about one in 13 – are incarcerated, compared with 2.6 percent of Hispanic men and 1.1 percent of white men. And it’s not much different among women. By the end of 2005, black women were more than twice as likely as Hispanics and over three times as likely as white women to be in prison.


 Certain states saw more significant changes in prison population. In South Dakota, the number of inmates increased 11 percent over the past year, more than any other state. Montana and Kentucky were next in line with increases of 10.4 percent and 7.9 percent, respectively. Georgia had the biggest decrease, losing 4.6 percent, followed by Maryland with a 2.4 percent decrease and Louisiana with a 2.3 percent drop.
 

How to add a link back to the LawReader Home Page in your browser tool bar.

Thursday, November 30th, 2006

Tips on how  to create a shortcut to always get back to the lawreader home page 
 

To aid you in navigating on LawReader.com, we suggest that you add LawReader.com to your Internet Explorer Browser.   You can place this link to your tool bar at the top of your screen, and no matter where you get thrown when leaving a page, you will always have a quick link back to the home page.

 

When you choose a link found in LawReader to a resource on the Internet sometimes the site you have visited will, when closed, throw you out of LawReader. 

 

If you have placed a favorites icon for LawReader in your browser toolbar, you will only be one click away from the LawReader Home Page.   This is a real time saver and speeds up your work on LawReader.

 

First go to your favorites section, which is located in the upper right of your browser toolbar.  It is marked with a red heart and the word FAVORITES.  Click on that icon

And then enter LawReader as one of your FAVORITES.

 

Use the address for LawReader as    www.lawreader.com

 

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When this “favorite? is created you can then drag it to the toolbar where it will stay displayed anytime you log on.

 

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Drag it to your tool bar by placing your mouse arrow on the new LawReader icon  and depressing the right mouse button and then dragging it to the tool bar.  When you release the mouse button the icon should appear thereafter in your toolbar.

 

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Indiana troopers murder trial excluded exculpatory evidence.

Thursday, November 30th, 2006

In 2000 an Indiana State trooper was charged with the murder of his wife and two children.  At the first trial the prosecutor was allowed to introduce evidence that the trooper had had a number of sexual affairs with other women, and he was convicted.  The Indiana Supreme Court granted a new trial and the trooper was convicted for the second time.  A new appeal is pending.  (See prior LawReader postings at bottom of this page.)

By the time of the second trial the police had arrested an ex-con whose DNA was found at the scene of the murder, and who had been convicted of the murders before the second trial of the state trooper.    The trial judge refused to allow introduction of any evidence about the convicted killer in the trooper’s trial.

It has now been disclosed that the convicted killer, Charles Boney had previously bragged to another inmate that he could kill a policeman’s family and set him up for the murder.

Boney refused to testify at the trial of the state trooper, David Camm, and the trial judge refused to allow evidence that the Boney had a foot fetish, which was relevant since the troopers wife’s shoes and stockings had been removed from her dead body.

The Trooper had five alibi witnesses that he was participating in a basketball game with them some miles from the murder scene.  Nevertheless he was convicted the second time.

This trial raises serious issues about the court’s rulings on evidentiary matters that were highly relevant to the defense of Camm.

The second prosecutor made very good use of television coverage of the second trial. He appeared almost daily on television bad mouthing the defense case and proclaiming the defendant’s guilt.   This prosecution and conviction of David Camm appears highly flawed. 

The Courier Journal reported on Nov. 30th the following story:

Boney implicated by inmate    Man says murders, frame-up threatened

By Ben Zion Hershberg  Reprinted from The Courier-Journal

Less than four months before the murders of David Camm’s wife and two children, Charles Boney vowed to kill a policeman’s family and frame him for the crime, according to an inmate who served time with Boney at an Indiana prison.
Boney and Camm, a former Indiana state trooper, were convicted in separate trials earlier this year of killing Camm’s wife Kimberly, 35, and the Camm children, Bradley, 7, and Jill, 5, on the night of Sept. 28, 2000.

The statement by inmate Ronnie Weldon was never heard by the Camm or Boney juries, in part because of the rules governing testimony and evidence permitted at trials.
Camm’s attorneys say they will make that an issue in the appeal of his conviction, which they are expected to file with the Indiana Supreme Court early next year.
“It’s our whole defense that Boney committed the murders himself,” said Stacy Uliana, one of Camm’s attorneys. “The judge tied our hands.”
Floyd County Prosecutor Keith Henderson, who prosecuted both cases, declined to comment on Weldon’s statement.

Boney’s attorney, Patrick Renn, said it is “completely unbelievable.” He said no jury would believe a man could commit “a horrendous crime like this and have everything fall into place” to frame someone else.
Weldon, 61, met Boney while both were inmates at the Miami Correctional Facility near Peru, Ind. Both Weldon, who previously had been convicted of murder, and Boney were serving 20-year sentences for armed robbery.

In interviews with The Courier-Journal and with investigators for both the prosecution and defense in the Camm case, Weldon described a conversation he said he had with Boney in June 2000.
Weldon said he often chatted with Boney when Boney would come to him to buy candy bars with his winnings from prison poker games.

On this occasion, Weldon said, Boney was upset after a confrontation with members of a prison gang. Boney liked to brag about how tough and smart he was, Weldon said, and he was talking big about his goal after getting out of prison.
That goal, Weldon said, was to frame a policeman for the murder of the officer’s family.
“He said he could blow the whole family away,” Weldon recalled. “He said, ‘Yeah, I’m capable of that.’ ”

He said he had all but forgotten about Boney’s statement until February 2005, after he had been transferred to a Kentucky prison from Indiana.
On a television set in his cell block, Weldon said he saw an interview with Boney about a sweat shirt that had been found at the Camm murder scene. That sweat shirt had been identified as Boney’s after his DNA was found on it.

At that moment, Weldon said, he thought Boney “did what he said he was going to do.”
Weldon said he attempted to reach Camm’s lawyers to tell them about Boney’s statement. Unable to locate them, he told prison authorities, and they notified Henderson’s office, which sent investigators to talk to Weldon in July 2005.
Camm’s lawyers learned about Weldon’s statement from the prosecutor’s office, and their investigator interviewed Weldon that October.
In a December 2005 hearing, Uliana and co-counsel Katharine Liell argued that Weldon’s statement should be presented to the Camm jury.
But Warrick Superior Court Judge Robert Aylsworth, who presided over the Camm trial after it was moved from Floyd County, ruled the statement to be inadmissible. He said the statement was just evidence of Boney’s “bad character” that the defense didn’t successfully connect with the Camm killings.

Since Boney was refusing to testify at Camm’s trial, there would be no way he could be questioned about the statement and others he’d allegedly made before a jury. Thus, Aylsworth concluded, the statement also constituted hearsay.
Camm’s attorneys believe the judge erred.
“The only reason a judge can exclude evidence someone else did it is if it’s irrelevant or too speculative or too far out there,” Uliana said.

Had there been no other evidence of Boney’s involvement, Weldon’s statement clearly would have been excluded as too speculative, Uliana said.
“But he’s at the scene,” Uliana said, citing the sweat shirt and the fact his palm print was found on a vehicle.

Boney admitted in a statement to investigators that he was at the scene, but he denied participating in the slayings.
Boney’s previous criminal history and the physical evidence tying him to the scene support the admission of Weldon’s statement and other evidence, Uliana said.
The rules of evidence that Aylsworth cited are trumped by Camm’s constitutional right to defend himself, she said.
Renn, however, isn’t convinced by such arguments.
He said he believes Weldon was hoping that his statement to investigators would help him in the future, perhaps at a parole hearing. And Weldon might have had a personal or racial dislike for Boney, who is African American, Renn said.
No matter what the motivation, Weldon’s statement is ridiculous, Renn said.
“You can’t plan on committing a murder and having an officer take the rap for it,” he said.

In the interview with The Courier-Journal, Weldon denied ever knowing Camm or having any reason to talk about Boney’s statement other than “to come clean.”

Since the death of one of his sons several years ago, and continuing with a diagnosis of prostate cancer earlier this year, Weldon said he is attempting to be honest.
“I’m not going to benefit from this,” he said.
Weldon is serving a life sentence at the Green River Correctional Facility in Central City, Ky., for a 1970 murder and armed robbery conviction in a Union County case. He was paroled in 1976.

At the time he met Boney, he was serving a 20-year sentence for a series of armed robberies in the Evansville area. After serving his Indiana sentence, he was returned to Kentucky for violating his 1976 parole.
Camm was convicted of killing his wife and two children in March 2002, but the verdict was thrown out by the Indiana Court of Appeals. In an August 2004 decision, the court ruled that the jury was unfairly prejudiced against Camm by testimony from a dozen women who said they had affairs with him or had been propositioned by him.

Before Camm’s retrial, Henderson filed charges of murder and conspiracy to commit murder against Boney.
Tried separately from Camm, Boney was convicted in Floyd Circuit Court in January and sentenced to 225 years in prison. Camm was sentenced in Warrick County Superior Court to life imprisonment without the possibility of parole.

Boney is appealing his conviction.

Reporter Ben Hershberg can be reached at (812) 949-4032.
 

In a prior LawReader posted we wrote:

Indiana Judge limits introduction of ”prior bad acts” of witness who is “co-defendant” being tried separatly.  Ruling guts defense of ex-state Trooper.

Indiana 404(b) applies to the “accused” and to “witnesses”, but the party being protected by the court’s suppression ruling is neither.

See: LawReader Comment citing Indiana’s Evidence Rule Did the judge misapply a rule intended for the protection of a defendant in order to protect other suspect? Indiana’s Rule 404(b) is clearly broad enough to have allowed introduction of the “foot fetish” evidence of Boney at Camm’s trial.

See: full text of  INDIANA RULE OF EVIDENCE 404

Judge deals setback to Camm defense
Co-defendant’s past can’t be evidence

By Ben Zion Hershberg  Reprinted from The Courier-Journal

BOONVILLE, Ind. — Prosecutors in the murder case against former Indiana state trooper David Camm won an important victory yesterday when a judge ruled that information about his co-defendant’s crimes cannot be used as evidence.
 Camm’s lawyers have argued that robberies committed by Charles Boney — and the foot fetish to which he admitted after a 1989 arrest in Bloomington, Ind., — explain details at the murder scene.

They say those include the fact that the shoes of Kimberly Camm, David Camm’s wife, were placed on the roof of her Ford Bronco in the garage, that her feet were bruised and battered, and that her pants were removed.
 Kimberly Camm and the Camms’ two children were fatally shot.
Steve Owen, Floyd County’s chief deputy prosecutor, contended at a hearing yesterday that Boney’s previous crimes weren’t at all like the Camm killings.
“I don’t see how you could take an armed robbery in 1992 and say that links you to the murders of a woman and two children in Georgetown in 2000,” Owen said.
Warrick County Superior Court Judge Robert Aylsworth agreed, saying that Boney’s crimes are “not strikingly similar” to the slaying of Camm’s family.
Those prior crimes, Aylsworth said, “did not occur in a single-family residence, not one involved murder, not one involved violence against a child.”

He ruled that “the prior crimes committed or allegedly committed by Mr. Boney cannot be admitted” under Indiana’s rules of evidence. Those rules prohibit the introduction of evidence about previous bad actions that aren’t directly related to a case being tried.

Other motions

Aylsworth also denied most of the Camm defense’s other requests for statements by and about Boney to be admitted.
Owen said after the hearing that Aylsworth’s decisions were “a big victory for us,” keeping the case focused on the killings and not on Boney’s previous crimes.
Camm, 41, was convicted nearly four years ago of shooting his 35-year-old wife and their children, Bradley, 7, and Jill, 5, at their Georgetown-area home in September 2000.

The convictions were overturned by the Indiana Court of Appeals in August 2004, and Camm was charged again.

His retrial is scheduled to begin Jan. 9 in Warrick Superior Court. The case was moved there because of extensive publicity in Floyd County, where the killings occurred and where the first trial took place.

Boney, 36, a felon who was released from prison three months before the deaths, was charged in March after authorities linked him to the scene through a sweat shirt and palm print. His trial is scheduled to begin Jan. 9 in Floyd Circuit Court.
Both men are charged with three counts of murder and with conspiracy to commit murder. They are being held in the Floyd County Jail.

Defense tactics

Katharine Liell, one of Camm’s lawyers, began yesterday’s hearing by staking out grounds she will use to defend him.
“His defense will be that he did not commit the crimes, that Charles Boney did,” Liell said.

“The identification of Boney’s obsession with shoes, feet and the legs of women explains the crime and the crime scene, and they are crucial to David Camm’s defense.”
Stacy Uliana, another Camm attorney, said Boney made statements to investigators in which he admitted putting Kimberly Camm’s shoes on the roof of her sport utility vehicle.
Based on his statements to police after his 1989 arrest in Bloomington for stealing the shoes of several women, and based on statements by others, “he has a powerful fetish,” Uliana said.

She said the defense doesn’t believe Boney killed the Camm family because of his foot fetish. But he had seen Kimberly Camm in New Albany and had been attracted to her because of his foot fetish, Uliana said.

The defense believes that Boney’s planned assault and robbery went awry and turned into fatal shootings when Kimberly Camm resisted, Uliana said.
Camm’s lawyers also presented a report by Gary Dunn, a former FBI agent and now a private investigator, that described a number of similarities between the Camm killings and the robberies for which Boney was arrested in the 1980s and 1990s.
Owen questioned Dunn about his training and expertise in creating such reports based on criminal psychology. Dunn acknowledged that he didn’t have specific training in creating such psychological profiles.

But he said that with his 27 years of work for the FBI, his education in criminology and his understanding of the “totality” of the crime, he was comfortable linking Boney’s previous crimes with the scene.

Do you know of any case of someone turned on by part of a female’s anatomy committing a murder because of being sexually attracted to that part of a person’s anatomy?” Owen asked.

“I am not aware of any other case,” Dunn said.

He said he wasn’t arguing that Boney “killed people for a foot fetish. He doesn’t kill for fetishes per se. That doesn’t mean a crime that was planned for one reason wasn’t executed badly.”

On other matters, Aylsworth put sharp limits on the admissibility of statements that Boney made to investigators because he has said through his lawyer that he won’t testify at the trial.

And the judge ruled that the results of a lie-detector test Boney took can’t be presented because the Indiana Supreme Court has held that such tests are unreliable.

Sam Lockhart, Camm’s uncle and a leader of efforts to exonerate him, acknowledged that yesterday’s rulings are a setback. He said the defense isn’t discouraged because it can still present physical evidence that Boney was at the scene.

93 prefiled bills filed for 2007 Session of Legislature.

Wednesday, November 29th, 2006

To see all of them go to:  2007 Regular Session – Prefiled Bills  When you get there click the bill number to read the full text of the bill.

93 Prefiled bills have been tendered for consideration by the 2007 session of the General Assembly as of Nov. 30, 2006.  Rep. Stan Lee has filed numerous bills placing limits on illegal immigrants and one making English the official language.

The most egregious bill may be the one filed by Rep. Melvin B Henley. His bill would preclude a person’s right to consult with their attorney prior to submitting to a Breathalyzer test. 

Four bills have been filed to raise the minimum wage.  Numerous bills have been filed to give veterans tax breaks and special privileges.   Three bills have been filed making it easier to restore convicted felons rights.

Several bills have been filed relating to casinos and gaming.  A number of bills have been filed that would limit the right of plaintiffs to collect in cases involving religious freedom claims, and no-fault insurance claims.

Many more bills will be filed before the session is over. 

 

BR 35 – Representative Rob Wilkey (06/23/06)
     AN ACT relating to criminal record expungement.
     Create a new section of KRS Chapter 533 to allow persons convicted of one Class D felony or a series of Class D felonies arising out of a single event to petition to have their records expunged; amend KRS 431.078, relating to misdemeanor expungements, to change the application fee from $25 to $50 dollars and to begin the five-year waiting period from the date of adjudication of the offense; amend KRS 527.040 to exempt individuals who have had their records expunged from the statute on a felon in possession of a firearm; create a new section of KRS Chapter 533 require the Administrative Office of the Courts to keep a confidential index of expungement orders for utilization in the preparation of presentence investigations.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Judiciary

________________________________________
BR 43 – Representative Dennis Keene (06/12/06)
     AN ACT relating to public safety.
     Create a new section of KRS Chapter 17 to provide a registration system for persons convicted of murder, define registrant, establish period of registration, and provide penalties for failure to register.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Judiciary

BR 51 – Representative C B Embry Jr (10/09/06)
  AN ACT relating to drug overdose prevention.
     Create a new section of KRS Chapter 218A to require physicians and institutions treating persons with a drug overdose to report the incident to the Cabinet for Health and Family Services; establish the requirements for the information to be included in the report and prohibit the inclusion of identifying information; provide immunity from civil or criminal liability for damages as a result of reporting; establish the Vital Statistics Branch as the repository of the centralized database; require the Vital Statistics Branch to issue quarterly reports with aggregate information by county and mental health region to the cabinet, the Office of Drug Control Policy, the state mental health commission, and the Legislative Research Commission; require the Cabinet for Health and Family Services to promulgate implementing administrative regulations.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Health and Welfare

BR 55 – Representative Melvin B Henley (07/26/06)
     AN ACT relating to child protection.
     Create new sections of KRS Chapters 620 and 30A to provide notice to each parent or custodian of minor children when other parent has a neglect or abuse action pending in any court of this state; amend KRS 403.320 to require supervised visitation and random drug testing in specified situations.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Judiciary
BR 67 – Representative Tommy Thompson (11/09/06)
     AN ACT relating to operator’s licenses.
     Amend KRS 186.412, regarding motor vehicle operator’s licenses, to clarify that a member of the military returning to the Commonwealth from out of state duty whose operator’s license has expired while away shall not be cited or convicted for driving on an expired license within 90 days of return to the state if the person can provide proof of out of state service and dates of assignment; amend KRS 36.450, regarding licenses and certificates issued to members of the military, to conform.
     (Prefiled by the sponsor(s).)
BR 70 – Representative Jim Gooch Jr (06/27/06)
     AN ACT relating to basic reparations benefits.
     Amend KRS 304.39-210, pertaining to no fault motor vehicle insurance, to require the provider of medical services to submit the statement for services within 45 days of the day the treatment is initiated and every 45 days thereafter; prohibit the charging of fees for medical expenses in excess of the limitations of the Kentucky workers’ compensation fee schedule as set forth in KRS 342.035 and in administrative regulations adopted pursuant thereto; prohibit a provider of medical services under the no-fault motor vehicle insurance law from knowingly collecting, coercing, or attempting to coerce the payment of any charge for services or treatment covered by a basic reparation obligor in excess of the schedule of fees provided by this section or from causing the credit of any insured to be impaired by reason of the insured’s failure or refusal to pay the excess charge.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Banking and Insurance
BR 74 – Representative Denver Butler, Representative Jon Draud, Representative Dennis Horlander, Representative Dennis Keene, Representative Charles Miller, Representative Ron Weston (09/08/06)
     AN ACT relating to gaming and making an appropriation therefor.
     Establish KRS Chapter 239 to authorize gambling at horse racing tracks and casinos; create numerous definitions; create the Kentucky Gaming Commission; establish the duties and responsibilities of the commission; require the commission to determine the occupations related to casino gaming and the qualifications for an occupational license; establish the application procedures for a casino, racing association gaming, manufacturer’s, and supplier’s license; establish the requirements and qualifications for all gaming-related licenses; prohibit a licensee from transferring or assigning the license without prior commission approval; permit a licensee to conduct gaming operations from a temporary facility under certain conditions; require racing association licensees to make certain requests to the Kentucky Horse Racing Authority regarding the number of racing days the licensee will have scheduled during a year; create an exemption to allow facilities development for gaming activities regarding zoning; provide that other zoning and building codes still apply; establish the position and the duties of the executive director of the commission; establish that certain job classifications are to be established by agreement of the parties to a collective bargaining agreement; require that before a gaming license is issued, the governing body in the jurisdiction where gaming operations are proposed must first enact an ordinance to permit casino gaming; require a gaming licensee to post bond and to maintain specific types of insurance; limit the number of gaming licenses to five racing association gaming licenses and four casino licenses; establish criteria for gaming operation locations; require certain information from applicants seeking a gaming license; establish the fees for applications, licensure, and renewal for all licenses; create the Kentucky gaming fund, the Kentucky municipal public safety fund, the Kentucky county public safety fund, the Kentucky horse racing equity fund, and the Kentucky thoroughbred claiming fund; require that certain amounts of the gaming fund support administrative operations of the commission, and other amounts from the gaming fund be dispersed to the Kentucky compulsive gamblers assistance fund, the Department of Education, the Council on Postsecondary Education, the Cabinet for Health and Family Services for health care services for certain indigent Kentuckians and for a prescription drug program for senior citizens, the Kentucky county public safety fund, capital construction, sewer and water projects administered under the Kentucky Infrastructure Authority, the Kentucky veterans trust fund, the state road fund, the budget reserve trust fund, and the equine industry program trust and revolving fund; establish the disbursement of funds to the Kentucky municipal public safety fund and the Kentucky county public safety fund; establish the disbursement of funds to the Kentucky horse racing industry; prohibit licensure of certain people under specific circumstances; establish the expenditure of moneys from the municipal public safety fund and the county public safety fund; establish a wagering tax at a rate of 35% of adjusted gross receipts received and reported monthly by the licensee obliged to pay the tax; establish the terms of all licenses regarding gaming operations; require the commission to promulgate administrative regulations to prescribe procedures for gaming licensees regarding the effective control over their internal fiscal affairs; require periodic financial reports from gaming licensees; require annual audits of the financial statements of gaming licensees; define and limit gambling games and devices; address how money deposited into the compulsive gamblers assistance fund will be expended; require the State Auditor to perform an annual audit of the commission; require gaming licensees to compile a list of persons to exclude or reject from licensed gaming establishments; require the commission to notify a person placed on an exclusion or ejection list; permit the commission to take disciplinary action if a gaming licensee knowingly fails to exclude or eject a person on the list; establish penalties for persons placed on the list who enter premises of a licensed gaming establishment; provide that the transport of gambling equipment and supplies into the state will not be a violation of federal laws; define the term “cheat” and establish penalties for persons who cheat; create the compulsive gamblers assistance fund; establish how expenditures from the compulsive gamblers assistance fund will be utilized; require the commission to prepare an annual report detailing activities and expenditures of the compulsive gamblers assistance fund; encourage gaming licensees to cooperate with local business and community organizations to stimulate the economy through tourism; require gaming licensees to pay the salaries of certain commission employees; require gaming licensees to make office space available for certain commission employees; prohibit a person under 21 from placing a wager or being in an area where gambling games are in operation; establish that commission members, the executive director, and commission employees are subject to the executive branch code of ethics; limit the administrative fine to $50,000 per offense; establish that administrative review under KRS Chapter 13B is available for persons aggrieved by an action by the commission; create a new section of KRS Chapter 131 to attach the commission to the Department of Revenue for administrative purposes; create a new section of KRS Chapter 242 to permit a local option election in certain areas for the limited sale of alcoholic beverages at tracks and casinos in the territory; amend KRS 243.030 to establish a $7,500 annual license fee for a casino entertainment license and a racing association casino entertainment license; amend KRS 243.040 to establish a $3,500 annual license fee for a casino entertainment license and a racing association casino entertainment license; amend KRS 243.500, 243.505, 525.090, 528.010, 528.100, 15.380 to conform; include a severability clause; Include language that this Act is void if the voters fail to approve a constitutional amendment permitting the General Assembly to authorize casinos.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Licensing and Occupations

BR 84 – Representative Stan Lee (07/12/06)
     AN ACT relating to civil rights.
     Amend KRS 344.450 to preclude the award of actual damages and attorney’s fees in civil rights cases involving the Establishment Clause.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Judiciary
BR 90 – Senator Richard “Dick” Roeding (11/28/06)
     AN ACT relating to elections and declaring an emergency.
     Amend KRS 117.255 to create an exception to the two-minute time period allowed for each voter to occupy a voting booth for disabled persons.
     (Prefiled by the sponsor(s).)
BR 95 – Representative Ron Crimm (08/14/06)
     AN ACT relating to failure to maintain security on a motor vehicle as required by Subtitle 39 of KRS Chapter 304.
     Create a new section of Subtitle 39 of KRS Chapter 304 to provide that there shall be no recovery for the first ten thousand dollars of bodily injury and the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident if the owner or operator fails to own or maintain security as required by this subtitle; provide that the limitation of damages shall not apply if the driver of the other vehicle is cited for driving under the influence, intentionally causes the accident, flees from the scene, or at the time of the accident is in furtherance of commission of a felony; provide that the limitation of damages does not apply to the owner of a vehicle that is not being operated and is not in violation of KRS Chapter 189; provide that a person involved in an accident in which the other vehicle is not covered by insurance may assert, as an affirmative defense, the limitation of damages provisions of this Act; provide that if an owner of an uninsured vehicle institutes an action to recover damages and is awarded an amount equal to or less than the minimum insurance requirements of KRS 304.39-110, the owner or operator must be held liable for all court costs incurred by the parties to the action; provide that each person who applies for a driver’s license, registers a motor vehicle, or operates or owns a motor vehicle in this state is deemed to have consented to being subject to this Act; require all persons who apply for issuance or renewal of a driver’s license, motor vehicle title, or motor vehicle registration to sign a declaration that the person consents to the provisions of this Act; provide that this Act does not preclude a passenger from asserting a claim to recover damages which he or she occasioned by the negligence of another person arising out of the operation or use of a motor vehicle; provide that no insurer shall lose any rights of subrogation; provide that if no suit is filed, the claimant’s insurer may recover any amount paid on behalf of the insured in excess of the first ten thousand dollars of bodily injury and property damages; provide that except for newly acquired vehicles added to a policy, the issuance, change, or adjustment of any motor vehicle liability security subsequent to an accident without proof of coverage having been bound prior to the accident shall not effectuate the recovery, the defeat of an affirmative defense, or the avoidance of liability for court costs; exempt from the provisions of this Act any vehicle which is legally parked at the time of the accident.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Banking and Insurance
BR 99 – Representative Melvin B Henley (09/27/06)
     AN ACT relating to crimes and punishments.
     Amend KRS 189A.105, relating to driving under the influence, to allow a court order for a blood or urine test when a defendant is charged with driving under the influence or some other statutory violation arising from the incident; delete statutory right to consult an attorney before the administration of any test.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Judiciary
BR 108 – Representative David Floyd (09/14/06)
     AN ACT relating to civil actions.
     Amend KRS 453.040 to define costs to be awarded to the prevailing party in civil actions and exceptions.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Judiciary
BR 119 – Representative Darryl T Owens (11/28/06)
     AN ACT relating to restoration of civil rights.
     Amend KRS 196.045 to require the Department of Corrections to initiate the process of restoring civil rights for eligible felony offenders unless otherwise advised by the offender, to require the Administrative Office of the Courts and the Kentucky State Police to provide the Department of Corrections with any record necessary for their investigation, and to require the Secretary of State and the Department of Corrections to provide written reports to the appropriate House and Senate committees..
     (Prefiled by the sponsor(s).)
BR 131 – Representative Ron Crimm (09/27/06)
     AN ACT relating to homeowner’s insurance.
     Create a new section of Subtitle 20 of KRS Chapter 304 to provide that an insurer who stipulates for purposes of homeowner’s insurance coverage or rates that the insured equip any swimming pool on the insured property with an enclosure that isolates the swimming pool from the home shall permit the insured to equip the pool with an approved safety pool cover in lieu of such enclosure.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Banking and Insurance
BR 144 – Representative W Milward Dedman Jr (09/18/06)
     AN ACT relating to state employee annual increments.
     Amend KRS 18A.355 to provide that state employees making less than $60,000 shall receive a five percent annual increment, state employees making $60,000 or more shall receive an annual increment equaling the federal Social Security cost-of-living adjustment, and state employee salary reductions under a budget reduction plan shall be calculated based on the proportions for the annual increment; amend KRS 48.130 to conform; Effective July 1, 2007.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on State Government
BR 148 – Senator Ernesto Scorsone, Senator Walter Blevins Jr, Senator David E Boswell, Senator Julian M Carroll, Senator Perry B Clark, Senator Denise Harper Angel, Senator Daniel Mongiardo, Senator Joey Pendleton, Senator Dorsey Ridley, Senator Tim Shaughnessy (08/31/06)
     AN ACT relating to the minimum wage.
     Amend KRS 337.275 to increase the state minimum wage to $5.85 an hour on the effective date of this Act, to $6.55 an hour effective July 1, 2008, and to $7.25 an hour effective July 1, 2009; and increase to the federal minimum wage rate if that rate exceeds the state minimum wage rate.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Labor and Industry
BR 149 – Representative Joni L Jenkins, Representative Mary Lou Marzian, Representative Tom Burch, Representative Don R Pasley, Representative Frank Rasche, Representative Jim Wayne, Representative Ron Weston (11/02/06)
     AN ACT relating to the minimum wage.
     Amend KRS 337.275 to increase the state minimum wage to $5.85 an hour on the effective date of this Act, to $6.55 an hour effective July 1, 2008, and to $7.25 an hour effective July 1, 2009; and increase to the federal minimum wage rate if that rate exceeds the state minimum wage rate.
     (Prefiled by the sponsor(s).)
BR 185 – Representative Mike Cherry (11/21/06)
     AN ACT relating to executive branch employees.
     Amend KRS 11A.010 to define “executive officer,” and change the definition of “officer” to include executive officers; amend KRS 18A.005 to define “qualifying,” and amend “agency” definition; make technical corrections; amend KRS 18A.030 to require the secretary of the Personnel Cabinet to propose selection method changes to the board for approval or denial and set time frame for board to approve or reject the proposed change; amend KRS 18A.037 and 18A.040 to change commissioner to secretary; amend KRS 18A.045 to change the number of Personnel Board members from seven to nine and specify that those two new members be elected classified employees; amend KRS 18.A.050 to provide that the term of the two new classified employee members be for three years and expire prior to the 2010 election; provide that the elected members be allowed to seek re-election; amend KRS 18A.0551 to conform; amend KRS 18A.190 to place limitations on compensatory leave payments of executive officers and officers to not exceed 240 hours upon separation from service; amend KRS 18A.075 to require the annual report of the Personnel Board be sent to the co-chairs of the Interim Joint Committee on State Government prior to October 1 and to specify the content of the report; require the Personnel Board to consider all proposed selection method change requests from the secretary of the Personnel Cabinet and prohibit any selection method change without final board approval; amend 18A.0751 to require the board to provide guidelines for dispute resolution for employees that attempt to resolve any work-related complaint or penalization; set out the two distinct methods; amend KRS 18A.095 to allow an appointing authority to suspend an employee, with pay, from the time that the employee has received an intent to dismiss letter and prior to the agencies final action; allow an employee to resolve any work-related complaint or penalization by choosing from two distinct methods; amend KRS 18A.110 to provide that employees with the two lowest evaluation ratings follow the new dispute resolution process outlined in Sections 10 and 11 of this Act; amend KRS 18A.111 to require former unclassified employees to serve an initial probationary period of 12 months if the employee is appointed to a position in the classified service, unless he or she has prior status within the system or had been separated from his or her unclassified position at least 180 days; amend KRS 18A.140 to allow classified officers and employees to occupy an elected office under certain conditions; require the secretary of the Personnel Cabinet to conduct a feasibility study on performing background and reference checks on all executive branch applicants and report to the co-chairs of the Interim Joint Committee on State Government prior to November 1, 2007.
     (Prefiled by the sponsor(s).)
BR 189 – Representative Jim Wayne (11/03/06)
     AN ACT relating to campaign finance, making an appropriation therefor, and declaring an emergency.
     Establish KRS Chapter 121B and create new sections to provide for the Kentucky Clean Election Act; define terms; establish the Kentucky clean election fund to distribute transfers to certified candidates; provide for reporting, records preservation, audit, and administrative regulations; provide procedures for declaration of intent for participating candidate to seek certification as a Kentucky Clean Election Act participant; prohibit a participating candidate from accepting contributions prior to the qualifying period, except for seed money contributions, which are limited to no more than $10 per individual and shall not exceed $1,500 for a candidate for the state Senate and $500 for a candidate for the state House; require a participating candidate to obtain qualifying contributions from a designated number of registered voters during the qualifying period, totaling 275 for a candidate for the state Senate and 100 for a candidate for the state House; require a participating candidate to submit qualifying contributions to the registry during the qualifying period; require the participating candidate to request certification no later than the last day of the qualifying period; require the registry to certify a candidate if the candidate signs and files a declaration of intent, submits the proper number of qualifying contributions, has accepted the proper amount of seed money contributions and no other contributions, files a notification and declaration of candidacy or has been nominated for office, and submits any other information required by the registry; require certification no later than three days after final submission of qualifying contributions; provide for appeal of denial of certification; require a certified candidate to limit campaign expenditures and obligations to transfers distributed by the fund and prohibit a certified candidate from accepting any contributions unless specifically authorized by the registry; require that unspent seed money and qualifying contributions be transferred to the fund; require the registry to distribute transfers within three days after certification for certified candidates in a contested primary election, and within three days after the primary election for certified candidates in a contested general election; require the registry to determine the amount of transfers not later than the first Wednesday after the first Monday in November preceding the election year, and require the first transfers to be made for the 2008 state Senate and House elections; specify that transfer amounts shall be $54,000 for Senate and $20,000 for House contested primary or contested general elections, that no transfers shall be made for uncontested primary or uncontested general elections, and that transfers shall be adjusted for inflation or deflation; specify that if the sum of the nonparticipating candidate’s expenditures or obligations or funds raised or borrowed exceeds the transfer amount, then the registry will issue an additional amount to any opposing certified candidate equivalent to the excess, if funds are available; limit matching funds to two times the original distribution, if funds are available; allow a certified candidate in a general election not affiliated with a political party who has been certified by April 15 to be eligible for general election transfers; require participating and certified candidates to report any money collected, all campaign expenditures, obligations, and related activities to the registry, according to procedures and at times prescribed by the registry in administrative regulations; require that any balance in a campaign account of any defeated certified primary candidate and any certified general election candidate to be returned to the fund; prohibit transfers from being distributed in excess of the total amount of money deposited in the fund; require a certified candidate to comply with KRS Chapter 121; provide for Class D felony for knowing violation of the expenditure limitations, contributions limitations, misuse of fund transfers, or falsification of records and provide for disqualification from holding office or becoming a candidate for office and provide for forfeiture of nomination or election; provide for a refund of all fund transfers if there is a violation of the statutes; provide for Class D felony for any knowing violation of the chapter or administrative regulations; provide for transmission of information about violations to Commonwealth’s Attorney and Attorney General; provide for civil penalty of $1,000 per violation; provide for contribution and expenditure limitations to be adjusted for inflation or deflation; amend KRS 118.255 to provide for a $1,300 filing fee for State Senate candidate and a $500 filing fee for State House candidate, with funds going to the clean election fund; amend KRS 6.611, 6.784, 121.120, 121.170 to conform, appropriate $18,156,000 for FY 2008-2009 to Registry of Election Finance; EMERGENCY.
     (Prefiled by the sponsor(s).)
BR 220 – Representative Jim Wayne (10/02/06)
     AN ACT relating to motor vehicle insurance premium discounts.
     Create a new section of Subtitle 13 of KRS Chapter 304 to require any rates, rating schedules, or rating manuals for the liability, personal injury protection, and collision coverages of a motor vehicle insurance policy filed with the Office of Insurance to provide a low mileage premium discount if the insured motor vehicle is driven 5,000 miles or less annually.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Banking and Insurance
BR 222 – Representative Jimmy Higdon (11/21/06)
     AN ACT relating to elections.
     Amend KRS 118.105 to allow 10 days, excluding weekends and legal holidays, for a replacement candidate to be nominated should a vacancy occur prior to September 15 of the year of the election, and to exclude weekends and legal holidays in the five days allowed for a replacement to be nominated on or after September 15; amend KRS 118.305 to clarify that any reprogramming of voting machines necessary to reflect a replacement candidate is at the expense of the political party or parties offering a replacement candidate.
     (Prefiled by the sponsor(s).)
BR 231 – Representative Jon Draud (10/10/06)
     AN ACT relating to circuit clerks.
     Create a new section of KRS 186.400 to 186.640 to require Circuit Clerks to extend the hours of operation of driver’s license testing centers by being open two evenings or two Saturdays per month.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Transportation
BR 239 – Senator Jack Westwood (10/09/06)
     AN ACT relating to concealed deadly weapons.
     Amend KRS 527.020, relating to carrying concealed deadly weapons, to permit carrying a concealed deadly weapon in a motor vehicle in any compartment or box regularly installed in the vehicle by its manufacturer, regardless of whether the compartment or box is locked, unlocked, or has no locking mechanism.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Judiciary
BR 241 – Senator Julie Denton (11/28/06)
     AN ACT proposing an amendment to Sections 30 and 31 of the Constitution of Kentucky relating to elections of the General Assembly.
     Propose to amend Sections 30 and 31 of the Kentucky Constitution to extend the terms of State Representatives from two to four years and State Senators from four to six years beginning in 2008; submit to voters.
     (Prefiled by the sponsor(s).)
BR 245 – Representative Tom Riner (09/29/06)
     AN ACT proposing an amendment to Section 145 of the Constitution of Kentucky relating to persons entitled to vote.
     Propose to amend Section 145 of the Constitution of Kentucky relating to persons entitled to vote, to permit a person convicted of a felony, except felonious sex offenders and felons convicted of violent crimes, to vote after the person has served the sentence for the offense, lived three consecutive years without re-offending, and performed 100 hours of community service; subject to the voters for ratification or rejection.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on State Government
BR 246 – Representative Tom Riner (09/29/06)
     AN ACT relating to the minimum wage.
     Amend KRS 337.275 to increase the state minimum wage to $6.15 an hour on the effective date of this Act, and to $7.00 an hour effective July 1, 2008; and increase to the federal minimum wage rate if such rate exceeds the state minimum wage rate.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Labor and Industry
BR 249 – Representative Tom Riner (09/29/06)
     A CONCURRENT RESOLUTION urging United States Congress to support a national health policy to insure affordable, accessible health care for all, with a priority for poor families and children, the elderly, and persons with disabilities.
     Urge the United States Congress to support a national health policy to insure affordable, accessible health care for all, with a priority for poor families and children, the elderly, and persons with disabilities.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on Health and Welfare
BR 281 – Representative Ted “Teddy” Edmonds (11/06/06)
     AN ACT relating to retail credit cards.
     Create a new section of KRS Chapter 367 to require a retailer that offers an initial discount to purchasers who sign up for a retail credit card in the retail store to disclose in all credit card promotional material in the retail store the retail card’s interest, finance charges, service charges, or other charges, including membership or participation fees; require such fees and charges to be displayed as clearly and prominently as the display of the initial discount and the annual fee; declare that failure to do so shall be deemed a billing error; permit the cardholder to mail an inquiry within 60 days of receipt of the billing statement that contains the billing error; require the retailer within 60 days of receipt of the inquiry to correct the billing error or send written explanation to the cardholder of why the retailer believes there was not a billing error; direct that a retailer who fails to correct the billing error is liable for the amount of the disputed fee or charge; permit recovery of 3 times the actual damages and attorney fees for a willful violation of this section; prohibit the retailer from threatening to report or from reporting to any person adversely on the cardholder’s credit rating or credit standing until at least 10 days after the retailer has responded to the inquiry; permit the retailer to report the cardholder as delinquent if the cardholder continues to dispute the charges after the retailer has responded to the inquiry but require the retailer to include in its report that the matter is in dispute and to notify the cardholder of the name and address of each party to whom the retailer reported the information concerning the delinquency; provide that if a requirement of this Act and a requirement of the federal Fair Credit Billing section or any federal act are inconsistent or in conflict, the federal law shall control; require application of this section to retail credit cards issued on or after January 1, 2008.
     (Prefiled by the sponsor(s).)
BR 282 – Representative Ted “Teddy” Edmonds (11/06/06)
     AN ACT relating to casualty insurance rates.
     Amend KRS 304.13-057 and 304.13-061 to prohibit basing casualty insurance rates for motor vehicle and homeowner policies, in whole or in part, on territory or location of the risk.
     (Prefiled by the sponsor(s).)
BR 296 – Representative Ron Crimm (11/17/06)
     A CONCURRENT RESOLUTION creating the Charitable Gaming Oversight Task Force of the Legislative Research Commission
     Direct the Legislative Research Commission to establish a task force composed of seventeen members from the General Assembly, the Office of Charitable Gaming, charitable gaming licensees, and the office of the Auditor of Public Accounts, appointed by the Legislative Research Commission, to study the oversight of charitable gaming; require findings and recommendations to be reported to the Legislative Research Commission by November 1, 2007, for referral to the appropriate committee; authorize the Legislative Research Commission to alternatively assign the study to an interim joint committee or subcommittee thereof and to designate a completion date.
     (Prefiled by the sponsor(s).)
BR 300 – Representative C B Embry Jr (10/30/06)
     AN ACT relating to hazardous duty retirement.
     Amend KRS 61.592 to change the definition of a hazardous position to include positions classified in the social services series that involve child protective services investigations or ongoing face-to-face contact with families whose children have been placed in the custody of the cabinet.
     (Prefiled by the sponsor(s).)
     To: Interim Joint Committee on State Government
BR 326 – Representative Mike Cherry (11/21/06)
     AN ACT relating to the safety, learning, and well-being of students.
     Amend KRS 158.440 to require school districts to have plans, policies, and procedures dealing with measures for assisting students who are engaging in disruptive and disorderly behavior, including harassment, intimidation, or bullying of another student; amend KRS 158.441 to define “harassment, intimidation, or bullying”; allow civil exchange of opinions or debate or cultural practices protected under the state or federal Constitution to be included in areas exempt from the definition; amend KRS 158.148 to require school districts to formulate a code of acceptable behavior and discipline that prohibits harassment, intimidation, or bullying of a student and includes procedures for identifying, reporting, investigating, and responding to complaints, a strategy for protecting complainants from retaliation, a process for annually discussing the code, and the consequences of violating the code with students and their parents or their legal guardians; require school districts to provide training on the district’s acceptable code of behavior to school employees who have direct contact with students if funds exist for this purpose; require school districts to include code of acceptable behavior in district employee training manual; require school councils that are proposing to adopt an instructional program or curriculum designed to instruct students on issues regarding harassment, intimidation, or bullying to afford parents, in a timely manner, the right to inspect and review the instructional material prior to adoption and to address the council on the proposal prior to its adoption; offer parents and legal guardians the opportunity to opt out their students from programs or curriculum regarding harassment, intimidation, or bullying; specify that students who are opted out shall remain subject to the policy that prohibits harassment, intimidation, or bullying; amend KRS 158.150 to include student harassment, intimidation, or bullying as a cause for suspension, expulsion, or other appropriate disciplinary action; amend 158.444 to require local school districts to report to the Kentucky Department of Education all incidents in which a student has been disciplined for harassment, intimidation, or bullying three times in a single semester or where an individual has been the object of three or more documented incidents of harassment, intimidation, or bullying in a single semester; create a new section of KRS Chapter 158 to require that all student data collected that is related to harassment, intimidation, or bullying be subject to the confidentiality provisions of both the federal and the Kentucky Family Education Rights and Privacy Acts; afford parents the right to inspect or challenge student records as permitted under those Acts; require individual student data collected that is related to harassment, intimidation, or bullying to be placed in the student’s disciplinary record; create a new section of KRS Chapter 158 to provide immunity to school employees or students from a cause of action for damages arising from reporting in good faith a student’s disruptive or disorderly behavior if school and district procedures are followed regarding the report; make technical corrections.
     (Prefiled by the sponsor(s).)
BR 327 – Representative Tanya G Pullin (11/17/06)
     AN ACT relating to criminal trespassing.
     Amend KRS 511.060 to include trespass within a school building within the offense of trespassing in the first degree.
     (Prefiled by the sponsor(s).)
BR 333 – Representative John A Arnold Jr (11/28/06)
     AN ACT relating to economic development and declaring an emergency.
     Amend KRS 154.26-010 to allow an approved company to remain in operation or resume operation in the event a facility has been temporarily closed; allow an eligible company to have an annual mine plan that targets raw production of at least three million tons of coal; EMERGENCY.
     (Prefiled by the sponsor(s).)
BR 347 – Representative J R Gray (11/22/06)
     AN ACT relating to the minimum wage.
     Amend KRS 337.275 to increase the state minimum hourly wage to $7.00 an hour on the effective date of this Act; provide for further increase to federal minimum hourly wage rate if such rate exceeds the state minimum hourly wage rate; require, effective July 1, 2008, and annually thereafter, that the minimum hourly wage be adjusted according to the Consumer Price Index; abolish the tip credit allowed for employers and provide that tipped employees be paid the state minimum hourly wage; and require the Department of Labor to post the state minimum hourly wage level as adjusted on the department’s Internet Web site.
     (Prefiled by the sponsor(s).)
BR 363 – Representative Rick W Rand (11/27/06)
     AN ACT relating to real estate brokerage.
     Amend KRS 324.085 to require actively licensed sales associates to complete a post-license course within 18 months of receiving a real estate broker license; mandate a 30-hour course with a curriculum focusing on legal fundamentals and practical applications in the sale or management of property for others; direct the commission to promulgate administrative regulations to determine course content, instructor qualification criteria, and other necessary components; amend KRS 324.160 to increase the maximum fine the commission may levy for specified misconduct from $1,000 to $2,500; make technical correction.
     (Prefiled by the sponsor(s).)
BR 378 – Representative Jesse Crenshaw (11/29/06)
     AN ACT proposing an amendment to Section 145 of the Constitution of Kentucky relating to persons entitled to vote.
     Propose to amend Section 145 of the Constitution or Kentucky to exclude a convicted felon from the right to vote until expiration of probation or final discharge from parole or maximum expiration of sentence; submit to the voters for ratification or rejection.
     (Prefiled by the sponsor(s).)
BR 408 – Senator Gerald A Neal (11/29/06)
     AN ACT proposing an amendment to Sections 145 and 150 of the Constitution of Kentucky relating to the restoration of civil rights for felons.
     Propose an amendment to Section 145 of the Kentucky Constitution, pertaining to persons entitled to vote, to require automatic restoration of civil rights, under specified circumstances, for persons convicted of felonies by distinguishing the requirements therefor based upon the length and completion of prison sentence; propose an amendment to Section 150 of the Kentucky Constitution, pertaining to disqualification and exclusion from office, to require automatic removal of the disability of certain felons to serve in public office, under specified circumstances, by distinguishing the requirements therefor based upon the length and completion of prison sentence.
     (Prefiled by the sponsor(s).)

 

Poll shows State Treasurer Jonathan Miller as strongest candidate for Dems Gubernatorial race in 2007.

Wednesday, November 29th, 2006

     A Herald- Leader Poll picks State Treasurer Jonathan Miller as most likely to defeat Gov. Ernie Fletcher.  Attorney General Greg Stumbo came in second in the poll, and House Speaker Jody Richards came in third.

 

The poll did not include Crit Luellan or former Gov. Brereton Jones.  Luellan recently withdrew her name from the list of potential candidates but insiders speculate that she could yet be persuaded to make the run in 2007. No such public statement declining the run has yet been made by Gov. Jones.

 

    So far Steve Henry has not filed but he has announced his intentions to run.  The filing deadline if Jan. 30, 2007 for the May Primary Election.

 

 

 

Which of these Democrats would be most likely to defeat Gov. Ernie Fletcher in a general election?
 

3.1%
David Boswell
8.1%
Jack Conway
3.8%
Ron Geary
7.5%
Steve Henry
4.4%
Bruce Lunsford
22.5%
Jonathan Miller
10.6%
Daniel Mongiardo
10.6%
Charlie Owen
13.8%
Jody Richards
15.6%
Greg Stumbo

 

Supreme Ct. takes up Global Warming issue

Wednesday, November 29th, 2006

 

By MARK SHERMAN 

The Supreme Court stepped carefully into the national debate over global warming on Wednesday, asking how much harm would occur if the Environmental Protection Agency continues its refusal to regulate greenhouse gases from new vehicles. 

In the first case about global warming to reach the high court, a lawyer for 12 states and 13 environmental groups pressed the justices to make the government act, saying the country faces grave environmental harm. 

Inaction is like lighting “a fuse on a bomb,” said James Milkey, an assistant attorney general for the state of Massachusetts. 

Opening up an hour of arguments, Justice Antonin Scalia asked, “When is the predicted cataclysm?” 

It’s not cataclysmic, but rather “ongoing harm,” Milkey replied. 

Several justices questioned whether the states and environmental groups have met their legal burden to show they will be harmed by continued EPA inaction. Petitioners to courts must meet that threshold before the merits of a case may be addressed. 

The Bush administration argued in court papers that the EPA lacks the power to regulate carbon dioxide as a pollutant under the Clean Air Act. Even if it had such authority, the EPA still would not use it at this point because of uncertainty surrounding the issue of global warming, the administration said. 

Global climate change is “a controversial phenomenon that is far from fully understood or defined,” trade associations for car and truck makers and automobile dealers said in a court filing signed by former Solicitors General Theodore Olson and Kenneth Starr that backs the administration position. 

Twelve states, mainly along the nation’s Atlantic and Pacific coasts, three cities, a U.S. territory and 13 environmental groups are arguing that the EPA ignored the clear language of the Clean Air Act. Under the 1970 law, carbon dioxide is an air pollutant that threatens public health and the EPA must regulate it, they said. 

Carbon dioxide is produced when fossil fuels such as oil and natural gas are burned. It is the principal “greenhouse” gas that many scientists believe is flowing into the atmosphere at an unprecedented rate, leading to a warming of the Earth and widespread ecological changes. One way to reduce those emissions is to have cleaner-burning cars. 

“There are compelling reasons for the court to join the issue now,” Massachusetts Attorney General Thomas Reilly said in a brief on behalf of the states, cities and environmental groups. 

A federal appeals court in Washington, in a fractured decision in 2005, upheld the administration’s position. The Supreme Court decided to take the case in June and is expected to rule before July 2007. 

The court’s decision could have far-reaching effects. A separate case involving the EPA’s claim that the Clean Air Act similarly does not give it authority to regulate greenhouse gas emissions from power plants also is making its way through the federal courts. 

Together, U.S. power plants and vehicles account for 15 percent of the world output of greenhouse gases, said David Doniger, counsel for the Natural Resources Defense Council, an environmental group involved in the Supreme Court case. 

An association of electric utilities, the Utility Air Regulatory Group, opposes greenhouse gas regulation. But two individual power companies, Calpine Corp. and Entergy Corp. (nyse: ETRnews - people ), are on the other side. 

“This case makes for strange bedfellows,” Entergy said in its brief. The company said it has to be able to make plans 25 years in advance and that the EPA’s current rules will not “stand the test of time.” 

Michigan, home of the U.S. auto industry, and eight other states are backing the EPA. 

The case is Massachusetts v. Environmental Protection Agency, 05-1120. 

 

 

 

 

 

 

 

 

 

Supreme Court Signals Change in U.S. Patent Protection Rules

Wednesday, November 29th, 2006

By Susan Decker and Jeff St.Onge

Nov. 28 (Bloomberg) — The U.S. Supreme Court signaled it may make it easier to challenge patents granted to some inventions as the justices criticized a lower court test used for more than two decades.

The court heard arguments today in a bid by KSR International Co. to stop a lawsuit that accuses it of using Teleflex Inc.’s patented invention for adjustable gas pedals. KSR is asking the court to rule that innovations that merely combine existing products often don’t qualify for a patent.

Most patents are issued for improvements to existing products rather than entirely new inventions. Under the current standard, a challenger seeking to invalidate a patent on grounds it simply combined prior inventions must prove there was a “teaching, suggestion or motivation” to put those earlier inventions together.

“It is misleading to say that the whole world is embraced within these three nouns,” Justice Antonin Scalia said. “This is gobbledygook. It really is, it’s irrational.”

The test has been in effect since shortly after the 1982 creation of the U.S. Court of Appeals for the Federal Circuit in Washington, which handles almost all appeals in patent cases. It is the standard used by judges and officials in the U.S. Patent and Trademark Office. In today’s case, the appeals court ruled that Teleflex could pursue its infringement claim against KSR.

Patent experts who criticize the appeals court say it has “leaned too far in the direction of never seeing a patent they didn’t like,” Justice Stephen Breyer said.

`Non-Obvious’

Patents are issued to inventions that are “new, useful and non-obvious” — in other words, innovations that wouldn’t have been evident to a person who understands the basic technology.

The justices grappled with how to devise a standard that would make it easier to challenge patents. Justice Anthony Kennedy asked whether the court could keep the current test and “supplement it with other means” to challenge patents.

“In hindsight everybody says, `I could have thought of that,”’ said Chief Justice John Roberts. “If you don’t have the sort of constraint that their test imposes, it’s going to be too easy to say everything was obvious.”

About 1.6 million U.S. patents are in force, according to the patent office. That’s about 23 percent of more than 7 million patents issued in the nation’s history. Under current law, patents expire 20 years from the date the application was filed.

The current legal test “underlies 160,000 patents issued every year,” said Teleflex lawyer Thomas Goldstein in urging the court not to change the legal standard. A change “will create genuine dramatic instability,” he said. Teleflex, which has since sold its auto-pedal business, is based in Limerick, Pennsylvania.

`Wrong Answer’

Bush administration lawyer Thomas Hungar, arguing in support of KSR, said the test “asks the wrong question and in cases like this one, it produces the wrong answer.”

KSR lawyer James Dabney said that under current law, courts can’t invalidate patents “except in a very limited and narrowly defined circumstance.”

Justice David Souter questioned whether the test has been used so long that it ought to stay in place.

“If the error is common enough and long enough, the error becomes the law. And in effect is that what we are confronted with here?” Souter asked Hungar. “If we see it your way, are there going to be 100,000 cases filed tomorrow morning?”

A ruling for KSR may make it harder to get patents and easier to challenge them in court. Backing KSR are technology companies Intel Corp., based in Santa Clara, California, and Cisco Systems Inc., based in San Jose, California, which say getting a patent is too easy.

Johnson & Johnson

Supporting Teleflex are Tylenol maker Johnson & Johnson, based in New Brunswick, New Jersey; Scotch tape maker 3M Co., based in St. Paul, Minnesota, and Fairfield, Connecticut-based General Electric Co., the world’s second-biggest company by market value. Those companies say that weakening patent protection would hinder innovation.

The dispute over patent law also is being argued in Congress, where the technology industry is lobbying for changes to reduce the number of infringement suits and the amount of damage awards.

Computers and other technology-based products use thousands of patented inventions, and companies that make those products say they face too many frivolous lawsuits by patent holders. In contrast, drug and biotechnology companies say they need strong patent-enforcement rights to protect the billions of dollars they spend each year researching new products.

Teleflex sued Ridgetown, Ontario-based KSR in 2002. The suit said KSR infringed Teleflex’s patent for an electronic control combined with gas, brake or clutch pedals that adjust to the driver’s height.

Chevrolet Trucks

Closely held KSR makes the pedals for General Motors Corp.’s Chevrolet and GMC trucks and sport-utility vehicles. Teleflex developed the technology for use in Ford Motor Co.’s F350 pickup truck.

Teleflex sold its auto-pedal business in August 2005 to DriveSol Worldwide, an affiliate of Sun Capital Partners Inc., a private investment firm based in Boca Raton, Florida. Sun Capital has taken over the case.

A ruling in the case, KSR International v. Teleflex, 04- 1350, is expected by July.

To contact the reporters on this story: Susan Decker in Washington at sdecker1@bloomberg.net ; Jeff St.Onge in Washington at jstonge@bloomberg.net

 

Key test of state power for Supreme Court. In a case of state vs. federal bank laws, to be argued Wednesday, the Roberts court may offer clues to its stance on federalism.

Wednesday, November 29th, 2006

By Warren Richey | Staff writer of The Christian Science Monitor

WASHINGTON – For 11 years, the conservative wing of the US Supreme Court did something decidedly unconservative. It sought to tip the balance of power between the national government and the states.
This so-called federalism revolution was aimed at bolstering the status of the states as dual sovereigns in the face of an ever-expanding sphere of federal power. The justices wrote of state sovereignty and the dignity of the states in terms reminiscent of Colonial distrust of the kind of draconian central authority wielded by the British crown.

Reprinted from the Christian Science Monitor

 But by the time Chief Justice William Rehnquist died in 2005, the “revolution” resembled little more than a constitutional skirmish.

Now with two new members of the Supreme Court, it is unclear whether the justices might again take up the mantle of states’ rights. Will a majority seek to boldly build on the string of federalism precedents handed down by the Rehnquist court, or will the judicial minimalism of Chief Justice John Roberts leave it to federal regulatory agencies and Congress to police the constitutional contours of federal-state power?

The high court’s first significant opportunity to address those questions arrives in a case set for oral argument Wednesday.

At issue in Watters v. Wachovia Bank is whether a federal agency has the power to preempt state regulations governing national mortgage companies doing business within a state’s borders. Put another way, the issue is who regulates mortgage companies affiliated with national banks, state regulators or federal regulators.

Traditionally, mortgage companies had to comply with state registration and other requirements. But in 2001, the federal Office of the Comptroller of the Currency (OCC), which regulates national banks, issued a new rule that subsidiary companies of national banks are governed by federal, not state, regulations.

That action preempted state laws and rules governing mortgage companies and other national bank subsidiaries operating in a particular state.

The current case arose in Michigan. Wachovia Mortgage Corp., a subsidiary of Wachovia Bank, had long done business there. The mortgage company was set up as a Michigan corporation. But because it is a subsidiary of a national bank, company officials said after the OCC rule change that they did not have to comply with Michigan regulations, only federal ones enforced by the OCC.

Linda Watters, who heads Michigan’s Office of Insurance and Financial Services, insisted that the company would have to comply with state laws if it wanted to continue to conduct business there.

The dispute went to court. A federal judge and a federal appeals court panel ruled for the company. Two other federal appeals courts have also ruled against state governments in similar litigation.

Michigan is now asking the Supreme Court to reverse the lower court decision, in part, according to state lawyers, because the OCC’s preemptive actions encroach on an area of traditional state power enforced by principles of federalism guaranteed in the 10th Amendment.

“In the absence of Congressional authorization, the OCC has no independent power to preempt the validly enacted legislation of a sovereign state,” writes Michigan Solicitor General Thomas Casey in his brief to the court.

Lawyers for Wachovia disagree. “These rules are within the OCC’s delegated rulemaking authority,” says Robert Long in his brief. Any protections of state power under the 10th Amendment are abrogated by Congress’s constitutional power under the commerce clause to regulate national banking, Mr. Long adds.

The Bush administration is backing Wachovia and the OCC. Federal agencies have the power to issue regulations that preempt state laws even when Congress has not specifically authorized such preemption, says Solicitor General Paul Clement in his brief.

The case is being closely followed by bankers as well as other nationwide businesses that face a patchwork quilt of differing state regulations. Federal preemption offers a significantly more efficient means of conducting business nationwide.

“For some of us, we’re not even sure how the 10th Amendment ended up in this case,” says Robin Conrad of the National Chamber Litigation Center of the US Chamber of Commerce. “We have two new members of the court, and they have yet to show their cards in cases involving federal preemption,” she says. “We see this as a pretty clear case that uniform national law is of primary importance.”

Also watching the case are attorneys general from the nation’s 49 other states, the District of Columbia, and Puerto Rico, who are urging the justices to uphold Michigan’s power to regulate companies doing business within its own borders.

“If [the OCC rule] is allowed to stand, it would render states powerless to protect their residents from abusive and discriminatory consumer practices by state- created entities that are operating subsidiaries of national banks,” writes Caitlin Halligan, New York solicitor general, in a friend-of-the-court brief filed by the states.

Consumer protection is an area traditionally regulated by the states, Mr. Casey writes in the Michigan brief. In contrast, he says, the primary mission of the OCC is to ensure the safety and soundness of the national banking system.

There are 40 full-time OCC staff members in a central office to investigate consumer complaints against national banks and their subsidiaries, Casey says. By contrast, there are nearly 700 full-time examiners and lawyers at the state level who handle consumer complaints, he says.

Lawyers for National City Bank offer different numbers in their friend-of-the-court brief. Of OCC’s 1,800 examiners, they say, 300 spend all or part of their time enforcing bank compliance with consumer-protection laws.

The OCC receives 70,000 consumer complaints a year, the National City Bank brief says, and in 2004 returned $4 million in wrongful fees and charges to complaining customers.

The brief says that state and local consumer-protection efforts “provide no real benefit to consumers.” It adds that federal examiners located on-site in large national banks effectively monitor not only the financial soundness of the bank’s operations but also compliance with federal consumer-protection laws.

Univ. of Texas LAW SCHOOL DEAN STRESSES ROLE OF THE COURTS AS UMPIRES

Tuesday, November 28th, 2006

By: MARK COLLETTE, Staff Writer Tyler Morning Telegraph, Tyler Texas

    
The new dean of the University of Texas School of Law, a constitutional law expert, told a Tyler audience Monday that the role of U.S. courts against the backdrop of war and terrorism will dominate legal scholarship and the Supreme Court for decades to come.

Lawrence Sager said those issues will define the court under Chief Justice John Roberts.

Prior to Roberts’ confirmation, the court, including the late Chief Justice William H. Rehnquist, ruled 6-3 against the Bush administration, saying both U.S. citizens and foreigners accused of terrorism can challenge their treatment in U.S. courts – even while being held in a Navy prison camp at Guantanamo Bay, Cuba.
Justice Sandra Day O’Connor said the court has “made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

That’s a good thing, Sager said, speaking at The University of Texas at Tyler.

“The court didn’t say to Mr. Hamdi (one of the detainees), ‘How many votes do you represent? … How many dollars rode into court with you?’” Sager noted.

He said courts should continue in their role as umpires – even when national security is at stake – because by their nature they are prone to fairness; they appeal to careful, well-established reason and precedent while acknowledging how their rulings may affect unrelated cases in the future; and they are a place where any person can appeal for justice.

“In some ways, the American judiciary and Supreme Court and Roberts court have been asked to answer questions as basic as, ‘Is the Constitution for bad times as well as good?’” Sager said.

Meanwhile, law schools have to keep up with and even predict the issues that will dominate the courts. Sager said that’s partly why the UT law school has established a “Guantanamo Bay” clinic, where students and legal scholars will wrestle with problems along the lines of those raised by the Hamdi case.

He said he hopes students at law schools everywhere will graduate with an understanding of why courts have an integral role in applying justice – even when there are direct threats to national security.

“What we do every day at the UT School of Law and at any good school of law is … to admire and abide by the rule of law, its judicial enforcement, and to abide by the Constitution,” he said. “That’s something I hope every student leaves UT with.”

Louisiana native Yaser Hamdi was released in 2004 after the Supreme Court’s ruling and after the Justice Department said he no longer posed a threat to the United States and no longer had any intelligence value. Hamdi, who was captured on the battlefield in Afghanistan in 2001, gave up his American citizenship and returned to his family in Saudi Arabia as conditions of his release.
This report contains material from The Associated Press.

Mark Collette covers Smith County. He can be reached at 903.596.6303. e-mail: news@tylerpaper.com

 

A 3D JD: Stanford Law School Announces New Model for Legal Education

Tuesday, November 28th, 2006

STANFORD, Calif.–(BUSINESS WIRE)–Stanford Law School today announced changes that are transforming the JD into a three-dimensional degree program that combines the study of other disciplines with team-oriented, problem-solving techniques and expanded clinical training that enables students to represent clients and litigate cases—before they graduate.

Stanford’s innovation is being driven by the new demands on modern lawyers, which are fundamentally different from those present when the law school curriculum was formed.

Stanford Law School Dean Larry Kramer said the pedagogical changes the school is spearheading are focused on the second and third year curriculum. He hopes Stanford’s reform—which began last year and should be fully implemented by 2009—will provide a model for legal education generally.

“Talk to any lawyer or law school graduate and they will tell you they were increasingly disengaged in their second and third years,? Kramer said. “It’s because the second and third year curriculum is for the most part repeating what they did in their first year and adds little of intellectual and professional value. They learn more doctrine, which is certainly valuable, but in a way that is inefficient and progressively less useful. The upper years, as presently configured, are a lost opportunity to teach today’s lawyers things they need to know. Lawyers need to be educated more broadly—with courses beyond the traditional law school curriculum—if they are to serve their clients and society well.?

“Business, medicine, government, education, science, and technology have all grown immensely more specialized,? Kramer said. “Legal education must adapt. How can a lawyer truly comprehend and grapple with a complex intellectual property dispute without understanding anything about the technology at issue? What counselor can effectively advise a client about investing in China or India without understanding their particular legal structures, to say nothing of their different cultural expectations and norms??

To serve clients capably or address major social and political issues, lawyers now must work in cross-disciplinary/cross-professional teams, particularly given that they work in increasingly sophisticated industries and fields—engineering, medicine, biotech, the environment. They must also practice law in a global context. “Where only a tiny number of graduates used to practice law across national borders, today only a tiny number do not,? Kramer noted. “International law, particularly the law governing private actors in the international arena, has gone from the periphery to the center, and law schools have been scrambling to adapt.?

Although lawyers were historically called upon (and trained) mainly to identify problems, they are increasingly being called upon to help solve them. To do this, especially in a world where the problems have grown more intricate, lawyers need to understand what their clients do at a much more sophisticated level than can be taught through the existing law school curriculum or in the traditional law school classroom.

Stanford Law School’s first change has been to make it easy for law students to take courses outside the law school, thus creating a way to add breadth in their education. The school voted last January to change its academic calendar—a traditional law school semester system—to match the rest of the university, which operates on the quarter system. Over the next several years, the Law School will operate on a modified semester schedule, with the plan being to switch fully to quarters in the fall of 2009.

And while the school has long permitted applicants to propose virtually any joint degree, Kramer wants to take joint degrees a step further than other schools by enlarging the number of such programs that enable students to complete the requirements more quickly and at less expense. Specifically, he hopes to formalize more than 20 joint degree masters and PhD programs over the next three years, modeled on the longstanding JD/MBA program. Like the JD/MBA, these programs combine course requirements in ways that greatly reduce the time and money it takes to pursue two distinct degrees, typically saving a full year. Hence, many of the JD/Masters degrees—in such fields as engineering, education, environmental science, and more—can be completed in the same three years it has traditionally taken to earn a JD alone.

Stanford Law School is in a unique position among law schools to broaden the curriculum because of the concentration of top rated graduate programs on one campus—business, engineering, medicine, environmental science, political science, and economics.

“What we’re doing here no other university has done,? said Kramer, “and almost no other university can do, because they don’t have the same number and quality of schools and departments. The idea is to utilize the rest of the university to create a more three-dimensional legal education. We realized that the rest of the university is training the people who will become our students’ clients. Good lawyers need to understand what their clients do.?

For students who are not seeking joint degrees, but who want to explore interdisciplinary topics in moderate depth, the law school is offering “concentration sequences.? In addition the school’s plan includes new simulation courses, more clinical opportunities, an enhanced international law program, and better curriculum advising.

The simulation courses are team-oriented, problem-solving courses that teach law students to work in teams with graduate students from other Stanford University programs. For example, in a course on expert witnesses, law students and students from the natural sciences work together through simulated exercises to prepare a witness to testify in a patent infringement case. New negotiation classes unite students from law, business, and engineering in exercises with “clients? as well as “opponents.? A new clinical course has law students working with medical students to address the full range of interrelated legal and medical needs of incoming patients.

The clinical program is being expanded and transformed in order to teach students how to work with clients and colleagues, how to address the ethical dilemmas that arise in practice, and how to apply legal concepts taught hypothetically or in the abstract in the classroom to a real world, client representation situation. Currently, Stanford Law School offers a variety of clinics that litigate in a number of specialized fields, including immigrants’ rights, community law, cyberlaw, environmental protection, and educational advocacy. The clinics provide pro bono representation and operate cohesively as a single law firm, the Stanford Legal Clinic (SLC).

Many of Stanford’s clinics have been pathbreaking and have won key federal rulings in the areas of environmental protection, disability rights, age-discrimination, bankruptcy protection for retirees, and more. The first clinic, the Stanford Community Law Clinic, was the first of its kind in 1984 to provide free legal assistance to low-income Bay Area clients. One of the most well-known clinics and an emerging-model for other law schools is the Stanford Supreme Court Litigation Clinic, which has worked on more than two dozen Supreme Court cases, including sixteen merits cases since its founding in 2004.

Two more clinics are being added in the next academic year: one to train students as corporate counsel for not-for-profit organizations, and the other to offer students hands-on experience in national criminal appeals dealing with cutting-edge issues.

Most important, not only is the law school expanding the number and range of its clinical courses, but it is developing a “clinical rotation? where students take only a clinic during a particular quarter—with no competing exams or classes. This approach mirrors the way that medical students have been trained as doctors for the past century. The clinical rotation will enable the school to deliver a much more intensive experience, including a better professional ethics component and a deeper research and writing component. It also permits the school to operate clinics in a greater variety of settings—including overseas.

“The hallmark of a great clinical program is its commitment to teach students to reflect on how law really works and how they practice law. We are not simply throwing students in the water and telling them to swim. We are using the vehicle of representation as the perfect pedagogical tool for inculcating a method of lawyering that is highly thoughtful and highly ethical. At the same time, we hope to instill in our students a commitment to making public service a permanent fixture in their professional lives,? said Larry Marshall, professor of law, David and Stephanie Mills Director of Clinical Education, and associate dean for Public Interest and Clinical Education.

Stanford made changes to its first year curriculum in the 1980s, adding flexibility to the first year by offering international law, administrative and regulatory law, problem solving/quantitative analysis, and some “perspectives? courses like law and economics, and law and society. Primarily, the first year remains built around the basics (torts, contracts, property, civil procedure, constitutional law, and criminal law) in order to teach core legal concepts and the basic process of legal argumentation.

“The first year generally works,? Kramer said. “The problem is that legal education has traditionally involved teaching one skill (thinking like a lawyer), and doing so for three years,? Kramer said. “The second and third year curriculum is thus best described as ‘more of the same.’?

“Yet more of the same is not enough. What we’re doing is creating an upper level experience that is very different from the one students have traditionally had,? Kramer said. “The core legal education remains as strong as ever, and our law faculty continues to do what it does best. But students can have a much richer, more varied educational experience in which they also get opportunities to study across disciplines, to work in teams with students from law and other disciplines, to have a serious and intense clinical experience.?

“At Stanford, we think lawyers have a valuable role to play—not just in modernizing the way that law is practiced, but in helping to solve the world’s problems. And we think we are uniquely positioned among law schools to produce lawyers who do that,? Kramer said.

About Stanford Law School

Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching. The school’s home page is located at www.law.stanford.edu.

About Stanford Law School Dean Larry Kramer

Recently inducted into the American Academy of Arts and Sciences, Larry Kramer is considered one of the leading legal scholars in the country. He has contributed pathbreaking work on state-state and state-federal conflict of laws, federalism and its history, and most recently, the role of courts in society. His book, The People Themselves: Popular Constitutionalism and Judicial Review, has sparked renewed interest in the ongoing debate about the relationship between the Supreme Court of the United States and politics, and established Dean Kramer as a maverick in the field of constitutional theory and interpretation. In addition to being a fellow of the American Academy of Arts and Sciences, Dean Kramer is an elected member of the American Philosophical Society and the American Law Institute. Before joining the Stanford faculty in 2004, Dean Kramer served as Associate Dean for Research and Academics and Russell D. Niles Professor of Law at New York University School of Law; professor of law at the University of Chicago and University of Michigan law schools; and consultant for Mayer, Brown, Rowe & Maw LLP. Early in his career, Dean Kramer clerked for Justice William J. Brennan, Jr. of the U.S. Supreme Court and Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit.

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Sup. Court Explores Complexities in Job Discrimination Case

Tuesday, November 28th, 2006

WASHINGTON, Nov. 27 — Federal law prohibits discrimination on the job, requiring employers to pay their employees without regard to race, sex, religion or national origin. Many complexities lie behind that simple statement, as a Supreme Court argument on Monday made abundantly clear.
The question for the court was how to treat a discriminatory action that happened long ago, beyond the statute of limitations for the federal Civil Rights Act, but that has effects that continue to the present day. Is each new paycheck, reflecting a salary lower than it would have been without the initial discrimination, a recurring violation that sets the clock running again? Or does the passage of time, without fresh acts of intentional discrimination, render the initial injury a nonevent in the eyes of the law?

The case was brought to the court by a woman, Lilly M. Ledbetter, who worked for 19 years as a manager at a Goodyear Tire and Rubber plant in Gadsden, Ala. For years, Ms. Ledbetter was paid less than men at the same level, and by 1997, as the only female manager, she was earning less than the lowest-paid man in the department. In 1998, after an undesired transfer, she retired and filed a discrimination charge against the company with the Equal Employment Opportunity Commission.
She took her case to federal court and won a jury award of more than $3 million in back pay and compensatory and punitive damages. Because of caps imposed by the law, Title VII of the Civil Rights Act of 1964, the judge reduced the award, to $360,000. But the United States Court of Appeals for the 11th Circuit, in Atlanta, overturned the verdict entirely. It ruled that Ms. Ledbetter had no case because she could not show any intentional discrimination in the 180 days before she complained to the employment commission.

Other federal appeals courts, including those here and in New York, disagree with that analysis, as does the E.E.O.C. The agency has long applied what is known as the “paycheck accrual rule,? under which each pay period of uncorrected discrimination is seen as a fresh incident of discrimination. So although the 180-day limit applies to discrete actions like a discriminatory refusal to hire or failure to promote, it does not, in the view of the federal agency charged with administering the statute, prevent lawsuits for the continuing effects of past discrimination in pay.

But the Bush administration has disavowed the commission’s position. After the court agreed in June to hear Ms. Ledbetter’s appeal, Ledbetter v. Goodyear Tire and Rubber Company Inc., No. 05-1074, the administration entered the case on the company’s behalf.
Irving L. Gornstein, an assistant to the solicitor general, argued that “employees who allow the 180-day period to pass may not years later, and even at the end of their careers, challenge their current paychecks on the grounds that they are the result of a number of discrete, individually discriminatory pay decisions that occurred long ago.?

When Justice Antonin Scalia asked, “Why should we listen to the solicitor general rather than the E.E.O.C.?? Mr. Gornstein acknowledged that the commission “has taken a different position,? one that he said was based on a misunderstanding of a Supreme Court precedent.

Ms. Ledbetter’s lawyer, Kevin K. Russell, said it was often difficult for employees to learn that their pay was discriminatory. Employees who receive regular raises, Mr. Russell said, may well not realize that the raises were smaller than they should have been.
“It’s only when the disparity persists,? he said, “when the different treatment accrues again and again and the overall disparity in the wages increases, that the employee has some reasonable basis to think that it’s not natural variation in the pay decisions but actually intentional discrimination.?

Justices Ruth Bader Ginsburg and Stephen G. Breyer appeared most sympathetic to Mr. Russell’s argument. Justice Breyer commented at one point that “there will be probably a significant number of circumstances where a woman is being paid less, and all she does is for the last six months get her paychecks and she doesn’t really know it because pay is a complicated thing.? It could take “even a year for her to find out,? he said.

Chief Justice John G. Roberts Jr. appeared the most skeptical, several times raising the question of how employers could shoulder the burden of defending long-ago pay decisions.
“It could be 40 years, right?? Chief Justice Roberts asked Mr. Russell, adding, “I mean, if it happened once 20 years ago, you have a case that you can bring? under the plaintiff’s analysis.

The Goodyear lawyer, Glen D. Nager, noting that the statute required proof of intentional discrimination, said the basic point was that “no one at Goodyear took Miss Ledbetter’s sex into account? in the salary she was paid in the 180 days before she filed her complaint.

The law does not permit the accusation “that there is discrimination today merely because there was discrimination yesterday,? Mr. Nager said, adding that when the “filing period passes and no charge is brought, the employer is entitled to treat that past act as if it was a lawful act.?
Justice David H. Souter asked, “Is that so even if they know it was in fact originally an unlawful act??

Yes,? Mr. Nager replied.

 

Court Facilities Standards Committee to review judicial center projects for Green, Jackson, Laurel & Pendleton counties, in Public Meeting

Monday, November 27th, 2006

The Court Facilities Standards Committee will be discussing new judicial center projects for Green, Jackson, Laurel and Pendleton counties, which are four of the 18 judicial center projects approved by the 2005 General Assembly and funded by the 2006 General Assembly.  The Committee will discuss this Friday:

Green County, new judicial center, 31,400 square feet, $9,819,000
Jackson County, new judicial center, 34,500 square feet, $11,034,000
Laurel County, new judicial center, 86,100 square feet, $23,709,000
Pendleton County, new judicial center, 30,700 square feet, 10,238,100
   The Committee is a 10-member body comprised of representatives from the Kentucky Executive, Judicial and Legislative branches of government and a county official appointed by the governor.

Kentucky state Rep. Gross Clay Lindsay chairs the 10-member committee. Chief Justice of Kentucky Joseph E. Lambert, AOC Director Melinda Wheeler and Kentucky Court of Appeals Chief Judge Sara Combs will also be in attendance.
The meeting will be held Friday, Dec. 1, 2006, 9 a.m. EDT at the Administrative Office of the Courts Conference Room, 100 Millcreeek Park, Frankfort.
Contact: Leigh Anne Hiatt, APR, public information officer
Administrative Office of the Courts, 502-573-2350, cell 502-545-2839, lhiatt@kycourts.net
 

California divorce court rules that spouses payments to care for his elderly mother was legitimate family debt and was not to be deducted from his share of marital property.

Monday, November 27th, 2006


 

You Owe Them. court says take care of your elderly parents.

Published by Sacramento Bee in EDITORIALS section, Page B4 – Nov. 24, 2006
All those baby boomers with aging parents should pay close attention to a recent court decision in California. An appeals court ruling in a nasty divorce in Placer County highlights the little known but significant legal obligation of adult children who, to the extent they are able, should support their indigent parents.
In the case before the appeals court, a divorcing wife disputed her husband’s right to deduct from the proceeds of her share of community property the $12,000 he had spent to support his elderly, infirm mother. The wife called the support payments “an unauthorized gift of community funds.” The trial court commissioner agreed with her. “You know as well as I do,” Placer County Commissioner Colleen M. Nichols said in the opinion, “that you’re under no legal obligation to pay for your parent’s expenses just as you’re under no obligation to pay for your child’s expenses once they are over the age of 18.”
But in a unanimous ruling that is binding on courts across California unless overturned by the state Supreme Court, the 3rd District Court of Appeal emphatically disagreed with Nichols. “Though not commonly known,” Associate Justice Vance Raye wrote for a three-judge panel, “California is one of many states that have enacted filial responsibility laws imposing on adult children obligations akin to those imposed on parents with respect to minor children.” With the exception of those circumstances where parents were known to have abandoned a child, the justice noted, “neglect of an indigent parent is punishable as a misdemeanor.” Penal Code Section 270c specifically provides that “every adult child who, having the ability so to do, fails to provide necessary food, clothing, shelter or medical attendance for an indigent parent, is guilty of a misdemeanor.”

 


Citing that law in the Placer divorce case, the justices ruled that the expenditure of $12,000 for the indigent mother’s care was a legitimate debt incurred by the husband during the marriage. He did not have to reimburse his former wife for it.
In an ideal world, neither laws nor courts would be needed to force parents to care for their children or adult children to care for needy parents. We live in a world that is far from ideal, as proved by the parade of disputes in our family courts. If nothing else, the ruling of the 3rd District Court serves as a reminder, if not a warning, that the ties that bind parent to child and child to parent can never be fully severed.
 

1988 Federal -Honest Services- law (in Wire & Mail Fraud Act) so broad and vague no one knows what it means.

Monday, November 27th, 2006

    After the U.S. Supreme Court said the mail fraud statute couldn’t be construed to include honest services, Congress, in l988, passed an amendment to the Federal Mail and Wire Fraud Statute to made the deprivation of honest services a crime.  The problem is that different courts have different definitions of what honest services means.  See statute at end of this article.

-Honest- statute prompts bar fight

By Jane Musgrave

Palm Beach Post Staff WriterMonday, November 27, 2006

When former Palm Beach County Commissioner Tony Masilotti goes to court this week to face allegations of government corruption, he joins a long and seemingly ever-growing list of notables who have pleaded guilty to a charge that some lawyers claim is blatantly unconstitutional.

Like lobbyist Jack Abramoff and U.S. Reps. Randy “Duke” Cunningham and Bob Ney, the once high-rolling commissioner is charged with honest services fraud.

 

“It’s a complete mess, and prosecutors love it,” said Albert Alschuler, a law professor at Northwestern University Law School. “They call it their Stradivarius, their Colt 45, their Cuisinart.”

The monikers are appropriate, he said, because the charge is almost impossible to beat.

A mere 28 words long, the statute has been giving courts and defense attorneys fits since it was enacted 18 years ago, said former federal prosecutor Richard Strassberg.

Steeped in the mom-and-apple-pie idea that people have “the intangible right of honest services,” it sounds good, said Strassberg, now in private practice in New York City. The problem is that no one knows what it means, he said.

“What, after all, is the ‘intangible right of honest services?’ ‘” he asked in a New York Law Journal article. “What ‘honest services’ are owed, and by whom? How are such ‘honest services’ breached?”

It was enacted in 1988, after the U.S. Supreme Court said the mail fraud statute couldn’t be construed to include honest services. In response, the U.S. Department of Justice asked Congress to amend the mail and wire fraud statute to make the deprivation of honest services a crime.

Since then, federal appeals courts have come close to striking it down as unconstitutionally vague.

The 2nd Circuit Court of Appeals in New York, for instance, wrote that “the plain meaning of ‘honest services’ … simply provides no clue to the public or the courts as to what conduct is prohibited under the statute.”

However, rather than throw it out, the 2nd Circuit and other federal courts have fashioned meanings that aren’t the same nationwide, Alschuler said.

The law is so broad, he said, that unfulfilled campaign pledges, such as President George H.W. Bush’s infamous “read my lips” promise, could be prosecuted as a crime.

Prosecutors say they are well aware of the complaints about the law that has been used to jail hundreds of public officials from police officers to purchasing agents to mayors to governors.

“Our view is that Congress has said that people have the right to honest services,” said Bryan Sierra, a spokesman for the U.S. Department of Justice. “Our argument is that the more laws that are out there covering this particular crime, the more tools we have to stop public corruption.”

Guy Lewis, a decade-long U.S. attorney for the Southern District of Florida who was tapped to oversee all U.S. attorneys in the nation, acknowledged that the honest services fraud statute gives prosecutors a powerful weapon.

“Is it a broad net to catch as many fish as possible? Yes,” said Lewis, who is in private practice in Miami. “But at the end of the day, they have to prove that a defendant knowingly and intentionally violated the law.”

Claims that campaign promises could be prosecuted make good theoretical arguments, he said.

“But when the rubber hits the road, prosecutors have to use it judiciously and wisely,” he said. “They have to be able to prove it beyond a reasonable doubt.”

Still, defense attorneys say, the law makes it too easy for prosecutors.

Ian Lanoff, a labor attorney in Washington, D.C., said he can understand prosecutors’ frustration. Bribery and extortion are often difficult to prove because there has to be a true cause and effect: a public official gets money and then votes on a measure to benefit his benefactor. Often, it’s not clear-cut.

“If it’s an easier path to conviction, as a lawyer I can’t applaud that,” he said.

The path is often further greased because the cases are high profile, Alschuler said.

“Typically, it comes before the courts as a newspaper case,” he said. “It’s a heater.”

Such was the case with Cunningham, Abramoff and Ney. Cunningham, of California, pleaded guilty to accepting $2.4 million in bribes from defense contractors for steering Pentagon contracts their way. Abramoff, one of the nation’s leading lobbyists, pleaded guilty to a wide-ranging influencing peddling scandal which ultimately snared Ney of Ohio.

The case against Masilotti, who is accused of using his position to craft a series of real estate deals that made millions for him and his family, has also been the subject of numerous newspaper articles and television news reports.

Alschuler speculated that one of the reasons appeals courts have been loath to invalidate the statute is that the cases, most notably the influence-peddling scandal that netted Abramoff, Ney and others, are front-page news.

Eventually, he predicted, the U.S. Supreme Court will have to step in.

“All of the federal courts are in conflict as to what it means,” he said. “The Supreme Court has been irresponsible in not sorting it out.”

Still, others said, the law passes constitutional muster.

Bruce Rogow, a constitutional lawyer and professor at Nova Southeastern University in Davie, said prosecutors still have to prove there was a scheme to defraud.

“All you’re doing is making honest services as important as stealing money or property,” he said. “I think there’s something to be said for demanding honest services.”

The U.S. Code Amendment states:

TITLE 18–CRIMES AND CRIMINAL PROCEDURE

                             PART I–CRIMES

                         CHAPTER 63–MAIL FRAUD

Sec. 1346. Definition of “scheme or artifice to defraud”

    For the purposes of this chapter, the term “scheme or artifice to
defraud” includes a scheme or artifice to deprive another of the
intangible right of honest services.

(Added Pub. L. 100-690, title VII, Sec. 7603(a), Nov. 18, 1988, 102
Stat. 4508.)

Assault on Press Freedom in the United States

Sunday, November 26th, 2006

In a nation that preaches the virtues of democracy, the United States government has consistently eroded the media’s ability to report and, by extension, undermines the ideals it professes to uphold
William Bennett Turner
Vladimir Posner, the former Soviet journalist, used to claim the press was freer in the Soviet Union than it was in the United States. This was during Glasnost, as the Soviet empire was disintegrating. Posner explained that the government was dysfunctional, so journalists did not have to worry about the official censors, and the media had not been privatized, so journalists were not accountable to commercial sponsors and advertisers. The result was a kind of anarchic freedom. The press was free, but only for a brief window in time.
The window in America once was open wide and, I thought, permanently so. I used to tell my students on the first day of class that we had the freest speech and press in the world. I can’t do that anymore.
In recent years American press freedom has eroded. Many other countries are now ranked freer than the United States — all of the Scandinavian countries, Belgium, the Netherlands, New Zealand and many others. In the most recent survey by Freedom House, an independent American-based organization that assesses liberties around the world, the United States tied for 17th place, with the Bahamas, Estonia, Germany and others.
The international free-press advocates Reporters Without Borders ranked us 53rd, tied with Botswana, Croatia and Tonga. These rankings may not be scientifically valid, for a lot of subjective judgment is involved. But it is sobering to see the consensus that the United States is no longer anywhere near the top.
By virtue of Supreme Court decisions, the U.S. press remains freer than the press elsewhere in a few respects.
First, our law provides significantly greater protection for the press against libel suits, especially by government officials. In many countries, libel is a bullying tool for officials and the powerful to silence dissent. Under the 1964 decision in New York Times vs. Sullivan, insults, parodies and vicious criticism of officials are protected by the First Amendment.
Second, our law protects the press against almost any attempt by government to impose a “prior restraint” on what can be published. That is, the government is not allowed to censor, in advance, information the press may wish to publish. The famous “Pentagon Papers” case in 1971 allowed the New York Times and the Washington Post to publish information about a classified Defense Department study on American involvement in Vietnam, despite the government’s contention that publication would impair national security.
Third, perhaps unique in the world, our law protects the advocacy of dangerous, potentially divisive ideas. One can preach overthrow of the government — domestic “regime change” — religious hatred, racial discrimination and even criminal activity. Under the Supreme Court’s 1969 decision in Brandenburg vs. Ohio, government may not suppress ideas, however repugnant to most, unless their expression amounts to incitement to imminent unlawful acts.
It also is true that American journalists have not been physically attacked based on what they report, at least at home (although overseas, some have been, and one was beheaded). In some other countries, journalists risk harassment or worse for reporting that offends government officials or powerful figures. The Committee to Protect Journalists reported that 47 journalists were murdered last year.
But U.S. press freedom has been slipping away since Sept. 11, 2001. Now that we are in a seemingly permanent “war” on terrorism, the government claims wartime powers that result in restricting press freedom.
The Bush administration has multiplied exponentially the number of documents it classifies as secret, shielding them from public view. It has classified literally millions of documents “top secret,” according to reports filed with the National Archives; and the office of Vice President Dick Cheney claims to be exempt from reporting even the numbers of records it brands with the “classified” stamp. (The administration has also tried to retrieve antique classified documents from columnist Jack Anderson’s estate, contending that only the government may possess such documents, however old.) Within weeks after 9/11, President Bush issued Executive Order 13233, allowing him to veto public release not only of his own presidential papers but those of former President Ronald Reagan, Bush’s father and former President Bill Clinton.
The administration also is aggressively pursuing leaks, not with a Nixonian Plumbers unit but by threatening criminal prosecution. Some Republicans in Congress have called for Espionage Act prosecution of the New York Times for publishing revelations about the National Security Agency’s monitoring of communications by U.S. citizens and tracking international financial transactions. Bush himself said it was “disgraceful” for the Times to reveal these government activities and publishing the security agency’s leak was “helping the enemy.”
Pursuing leaks inevitably means pursuing the reporters who received and published the leaks, forcing them to give up confidential sources or telephone records or go to jail. Whatever Judith Miller’s motivation and however questionable her arrangement with “Scooter” Libby, she went to jail solely because she refused to reveal communications with her source to the federal grand jury.
Although all states (except Wyoming) legally recognize some sort of privilege for reporters to protect the confidentiality of sources, there is no federal shield law, and the Supreme Court held in 1972 that the First Amendment does not itself serve as one, at least where the information is sought by a federal grand jury investigating a crime.
So reporters who dare to report leaked information that may be classified, or information about testimony before a grand jury — as Chronicle reporters Lance Williams and Mark Fainaru-Wada did in the BALCO proceeding about steroids in sports — face subpoenas requiring them to reveal their confidential sources to grand juries or go to jail. And now, Williams and Fainaru-Wada have been ordered to serve as much as 18 months in federal prison, a ruling they have appealed to the U.S. Court of Appeals in San Francisco.
So far, the courts have refused to protect subpoenaed reporters no matter how important the information they unearthed or how insignificant the alleged crime. It is true that reporters have never had strong protection against federal subpoenas, but they have hardly ever needed it. Until now.
One of former Attorney General John Ashcroft’s first post-Sept. 11 acts was to issue a directive to federal agencies restricting access to government records under the Freedom of Information Act. Ashcroft’s directive effectively reversed the presumption of openness and told agencies not to allow inspection of records if there was any arguable basis for withholding the records, assuring officials that Justice Department lawyers would defend them if sued.
Ashcroft’s Justice Department also proceeded to round up mostly Muslim immigrants and conduct deportation hearings in secret, not allowing the press or public even to know that any hearing took place, which caused one federal judge to remark that “democracy dies behind closed doors.” Ashcroft’s moves toward greater secrecy were of a piece with Cheney’s refusal when sued under the Freedom of Information Act to disclose even the identity of the corporate executives he met with to determine the administration’s energy policy.
Unlike in Sweden, where the right of access to government documents is enshrined in the Constitution, our 1966 information act is solely a legislative creation. Unlike in South Korea, where the Supreme Court decided in 1989 that the right of access to government documents was an integral part of the constitutional freedom of the press, the U.S. Supreme Court held (in a case I lost, Houchins vs. KQED) that there is no such thing as a First Amendment right of access to government information or facilities. Consequently, Americans’ right to know what their government is up to is not as well recognized as it is in some other countries.
Nor is government propaganda healthy for a free press or the citizenry. The Bush administration did not advance press freedom by producing and canning favorable “news” stories with fake reporters and peddling them to television stations, or by clandestinely paying friendly columnists for publishing opinions supporting administration policies.
Other recent U.S. government actions also cut into press freedom. The Federal Communications Commission’s campaign to stamp out “indecency” and “profanity” in the broadcast media, with congressionally increased fines of $325,000 per violation for allowing a breast to be glimpsed or a dirty word uttered, has intimidated broadcasters.
The campaign may initially have been aimed at Howard Stern, but it puts at risk serious programming like a CBS documentary on 9/11 in which strong language escapes from the lips of firefighters and others in the inferno, “Saving Private Ryan” and even Masterpiece Theater’s “Prime Suspect.” Other countries like Sweden are bemused by American prissiness about sex and impose no comparable restrictions on their broadcasters.
The press is free in countries that trust the people to make wise decisions when they’re fully informed, countries that remain willing to take the risks of dissent, rude discourse, instability and some insecurity, that tolerate eccentricity and unorthodox ideas. The erosion of press freedom in the United States, relative to other nations around the world, is disheartening. We have always had high expectations of freedom, which we now don’t live up to.
It is hard to stomach the hypocrisy of claiming to spread democracy abroad while restricting at home the very freedoms that make democracy possible.
William Bennett Turner is a San Francisco lawyer who teaches a course on the First Amendment and the press at UC Berkeley. Contact us at insight@sfchronicle.com.
 

A Dark Force in the Universe . Scientists try to determine what is revving up the cosmos.

Sunday, November 26th, 2006

Science News Online    Week of April 7, 2001; Vol. 159, No. 14
  
  Ron Cowen
 
  Three years ago, observations of distant, exploding stars blew to
  smithereens some of astronomers’ most cherished ideas about the
  universe. To piece together an updated theory, they’re now thinking
  dark thoughts about what sort of mystery force may be contorting the
  cosmos.
  
  Observations of distant supernova, including 1997ff, suggest
  that over the past few billion years, a mysterious substance called
  dark energy has caused gravity, at its largest scale,
  to become repulsive. When the universe was smaller and the density of

  matter therefore higher, dark energy would have had a negligible
  effect. Gravity would have exerted its familiar universal attraction,

  slowing cosmic expansion.
 
  Z. Levay/Space Telescope Science Institute
 
  According to the standard view of cosmology, the once infinitesimal
  universe has ballooned in volume ever since its fiery birth in the
  Big Bang, but the mutual gravitational tug of all the matter in the
  cosmos has gradually slowed that expansion.
 
  In 1998, however, scientists reported that a group of distant
  supernovas were dimmer, and therefore farther from Earth, than the
  standard theory indicated. It was as if, in the billion or so years
  it took for the light from these exploded stars to arrive at Earth,
  the space between the stars and our planet had stretched out more
  than expected. That would mean that cosmic expansion has somehow sped

  up, not slowed down. Recent evidence has only firmed up that bizarre
  result (SN: 3/31/01, p. 196).
 
  In 1929, Edwin P. Hubble discovered that distant galaxies are fleeing

  from one another as if the entire universe is swelling in size. Ever
  since, astronomers have been hoping to answer a key question: Will
  the expansion of the universe, slowed by gravity, go on forever, or
  will the cosmos eventually collapse into a Big Crunch?
 
  Despite decades of effort and countless studies devoted to the
  ballooning of the universe, the recent findings stunned astronomers.
  Few suspected that all along they were asking the wrong question.
 
  “For 70 years, we’ve been trying to measure the rate at which the
  universe slows down. We finally do it, and we find out it’s speeding
  up,” says Michael S. Turner of the University of Chicago.
 
  An accelerated expansion would seem to contradict all common sense,
  says Andreas J. Albrecht of the University of California, Davis.
  Throw a ball into the sky, and after it reaches a certain height, it
  will come back down, he notes. Now imagine throwing another ball
  upward and finding that instead of it falling back down, it somehow
  keeps moving up faster and faster. For that to happen, there would
  have to be some force pushing upward on the ball strongly enough to
  overcome gravity’s downward tug.
 
  Astronomers have come to believe that just such a force is stretching

  the very fabric of space.
 
  What is this mystery force?
 
  Cosmologists have proposed that it derives from dark energy, a
  substance whose properties and origin scientists have only begun to
  explore. At stake is more than just a better understanding of the
  fate of the universe: The very presence of dark energy may enable
  scientists to explain the fundamental forces of the universe and
  tease out the hidden connections among them.
 
  Says Albrecht: “This is the most exciting endeavor going on in
  physics right now.”
 
  Dark matter
 
  Astronomers have dark imaginations. They’re already obsessed with
  another phenomenon that they call dark matter, which is entirely
  separate from dark energy. Dark matter is the invisible material that

  theorists say makes up 95 percent of the mass of the universe. It
  gathers into vast clumps and exerts an ordinary gravitational tug on
  its surroundings. The proposed dark energy, in contrast, would
  inhabit empty space and would be evenly distributed throughout the
  universe.
 
  Moreover, dark energy would exert a repulsive force, what might be
  called antigravity. More accurately, dark energy would be the flip
  side of ordinary gravity because it would possess a strange property
  called negative pressure. Something with negative pressure resists
  being stretched, as a coiled spring does: Pull on the spring and it
  pulls back.
 
  To understand what pressure (negative or positive) has to do with
  gravity, take a look at Einstein’s general theory of relativity.
  According to that theory, matter isn’t the only source of gravity.
  There are two other sources: energy, which is interchangeable with
  mass according to Einstein’s famous equation E = mc2, and pressure.
 
  A familiar example of pressure is an inflated balloon. In this
  everyday experience, pressure within the balloon has a negligible
  effect on its gravity. At physical extremes, however, pressure can
  dominate. When that occurs, some strange things can happen, such as
  the formation of black holes.
 
  Pressure prevents a star as massive as the sun from imploding under
  its own gravity. That’s because the radiation emitted by the star
  exerts a gaslike pressure outward.
 
  Stars more massive than the sun must exert an even stronger pressure
  to counterbalance their gravity. For a star greater than about four
  times the sun’s mass, the counterbalancing pressure becomes as strong

  as the density of the star. When this happens, pressure contributes
  as much as mass does to the gravitational force, Einstein’s theory
  says. In effect, the gravitational pull inward drastically increases.

 
  The more the star contracts, the greater its pressure and density,
  and thus the stronger the gravity. Unable to resist, the star
  undergoes a runaway collapse, and its gravity becoming so strong that

  not even light can escape its grasp. A black hole is born.
 
  The contribution of pressure is “an aspect of gravity that was there
  all along,” notes Turner. He says that anyone who accepts the reality

  of black holes has implicitly accepted the notion that pressure can
  be a key source of gravity.
 
  According to Einstein’s theory, pressure has another mind-bending
  property: It can be negative. An object having negative pressure
  resists being stretched. “Think of negative pressure as silly putty
  or a rubber sheet. The atoms don’t want to be drawn apart; there’s a
  force that pulls them together,” says Turner. Negative pressure, he
  notes, would impart a springiness or elasticity to space.
 
  It’s counterintuitive to think that a material such as rubber, which
  draws itself inward when stretched, could push objects outward. Yet
  if dark energy’s antigravity effect,  it’s ability to exert negative   pressure,
 were strong enough, it could swing the gravity meter from   the plus side
 to the minus side, Einstein’s theory dictates.
 
  Gravity normally pulls matter together. Instead of pulling, dark
  energy would cause gravity to push. Instead of tugging and slowing
  the expansion of the universe, dark energy would rev it up.
 
  As bizarre as dark energy may seem, it’s the only theory to explain
  the accelerating cosmos that is compatible with Einstein’s general
  theory of relativity, says Turner.
 
  Dark energy
 
  In its simplest version, dark energy would be a true constant,
  equally distributed throughout the universe and continuously exerting

  the same amount of force as the universe expands. In 1917, Einstein
  posited a version of this energy, which he called the cosmological
  constant. Physicists have sporadically been returning to that idea
 ever since. Because the cosmological constant would exist even in the

  absence of matter or radiation, its origins might lie within empty
  space itself.
 
  This property could tie dark energy to one of the stranger properties

  of quantum mechanics. Quantum theory dictates that empty space  (what
  physicists call the vacuum) seethes with energy as pairs of particles
  and antiparticles pop in and out of existence.
 
  This vacuum energy has some subtle but measurable effects. For
  example, it shifts the energy levels of atoms slightly and exerts a
  force between closely spaced metal plates (SN: 2/10/01, p. 86). In
  1967, the Russian astrophysicist Yakov B. Zeldovich showed that
  vacuum energy has an intriguing property. The energy associated with
  this nothingness has negative pressure.
 
  That means vacuum energy could push galaxies apart at ever-increasing

  speeds, making it an ideal candidate for being the dark energy.
 
  Alas, there appears to be a huge problem. Calculations reveal that
  the energy stored in the vacuum is 120 orders of magnitude larger
  than the dark energy that cosmologists are positing.
 
  “If the vacuum energy density really is so enormous, it would cause
  an exponentially rapid expansion of the universe that would rip apart

  all the electrostatic and nuclear bonds that hold atoms and molecules

  together,” note Paul J. Steinhardt of the University of Pennsylvania
  in Philadelphia and Robert R. Caldwell of Dartmouth College in
  Hanover, N.H., in a recent review article. “There would be no
  galaxies, stars, or life.”
 
  It’s likely, physicists admit, that they don’t really know how to
  calculate vacuum energy. That complication may have to do with their
  limited knowledge about the nature of gravity. Einstein’s theory
  holds that gravity curves empty space “the vacuum? but scientists don’t

  yet know how gravity does so on a quantum mechanical scale.
 
  Thus, scientists have yet to unify quantum theory with gravity. Some
  hold out the hope that when they do, they’ll miraculously find that
  the 120 orders of magnitude drop to zero, almost. There might be just
  enough vacuum energy left over to account for the amount harbored by
  dark energy.
 
  Many researchers think that’s a forlorn hope, however. They believe
  that a better understanding of the vacuum energy will reveal it to be

  exactly zero.
 
  In that case, dark energy would have to be something else. Several
  theorists believe this something else blankets the universe and
  varies with time and place. Steinhardt, his University of
  Pennsylvania colleague Rahul Dave, and their collaborators call this
  variable form of dark energy “quintessence.”
 
  Quintessence takes on a different form and strength depending on what

  time it is in the universe. Scientists have established that just
  after the Big Bang, high-energy radiation filled the universe and was

  the dominant form of energy. Matter contributed very little to the
  cosmic-energy budget. In that era, quintessence would have mimicked
  the properties of radiation, Steinhardt says. Like radiation, it
  would have exerted positive pressure.
 
  As the universe cooled and particles slowed, the energy balance
  shifted in favor of matter. Material started to clump together to
  form larger structures. Steinhardt proposes that at the onset of that

  era, some 50,000 years after the Big Bang, quintessence changed. As
  he and his colleagues see it, quintessence “dark energy? settled down
  to a fixed value and began exerting a negative pressure throughout
  the cosmos.
 
  In this vision, the dark-energy density initially paled in comparison

  with the density of matter. Gravity thus acted in its familiar
  fashion, slowing the expansion of the universe. But as the volume of
  the universe continued to expand, its matter density decreased. As
  matter density dwindled, the energy density associated with
  quintessence remained constant, or nearly so. Consequently,
  quintessence became gravity’s new boss. The expansion of the cosmos
  would then have gone into overdrive.
 
  It’s no coincidence that humans are living at a time when it’s
  possible to observe cosmic acceleration, says Steinhardt. The same
  shift in the mass-energy balance that gave rise to stars, galaxies,
  planets, and life also transformed quintessence into a cosmic
  accelerator.
 
  Steinhardt admits he hasn’t come up with any fundamental explanation
  of why the quintessence field would change in this way. The answer,
  he says, could lie in new physics, perhaps in a new elementary
  particle implied by quintessence. The explanation could also provide
  a hint about how physicists might tackle one of their thorniest and
  most intriguing challenges, explaining the existence of the
  fundamental forces and how they intertwine. Quintessence, or dark
  energy, could be a linchpin that holds together both old and new
  physics.
 
  In a version of quintessence proposed by Albrecht and his University
  of California, Davis colleague Constantinos Skordis, the repulsive
  force may come from other, unseen dimensions or even from other
  universes beyond our own. That dovetails with a theory from
  elementary particle physics, which posits that our three dimensions
  plus time are but a tiny part of a much broader, multidimensional
  canvas.
 
  The extra dimensions wouldn’t have a direct influence on our own
  four-dimensional space-time. But because gravity exerts itself by
  distorting space, the gravitational field associated with the extra
  dimensions might affect our own. Albrecht suggests that gravity’s
  ability to repel as well as attract could stem from the existence of
  those other dimensions. Those dimensions in turn could provide
  additional hints about another deep puzzle of physics, the quantum
  nature of gravity, he notes.
 
  Albrecht says his theory offers another advantage. It describes
  quintessence by using only simple constants of nature, such as the
  speed of light, the gravitational constant, and Planck’s constant of
  quantum mechanics. The quintessence field that he and Skordis
  construct from these constants could indeed have become dominant long

  after the Big Bang, prompting the current phase of accelerated
  expansion.
 
  Albrecht acknowledges the ad hoc nature of quintessence theories,
  which are still in their infancy. “We each have our own angles,” he
  notes. “They all have a lot of weaknesses.”
 
  Cosmic expansion
 
  Several studies now in the works may enable astronomers to confirm
  whether or not cosmic expansion is accelerating. Moreover, the
  studies could also reveal which of the two proposed forms of dark
  energy? quintessence or vacuum energy? is driving that acceleration.
  Astronomers think they can distinguish the two types of dark energy
  because quintessence would give the universe a smaller push.
 
  [IMAGE]  “Dark energy” as envisioned by Pokémon.
  (c) Wizards of America
 
  If vacuum energy really is the dark energy, then the universe will
  expand forever at an accelerating rate.
 
  If quintessence proves correct, then the amount by which space has
  stretched over the past few billion years is less than if dark energy

  is the vacuum energy. Because the volume of the cosmos is smaller in
  a quintessential universe, supernovas up to a few billion light-years

  from Earth would appear somewhat brighter and fewer galaxies would
  exist within a given span of cosmic time. Under the quintessence
  theory, the dark energy varies in time and space, so determining the
  fate of the cosmos isn’t so straightforward.
 
  Indeed, dark energy might even be a fleeting phenomenon that gives
  the universe an extra kick for several billion years and then
  disappears. In that case, it could resemble an extended replay of
  inflation?the brief, mysterious epoch of hyperexpansion that is
  thought to have occurred during the earliest moments of the universe
  (SN: 12/19 & 26/98, p. 392).
 
  Dark energy “is involved in very fundamental issues,” says Turner.
  “This could be a key to understanding the forces of nature, including

  the quantum theory of gravity.”
 
  Strange as dark energy seems, Turner notes, “I guarantee you it’s not

  going away.”    
 
  References:
 
  Albrecht, A., and C. Skordis. In press. Phenomenology of a realistic
  accelerating universe using only Planck-scale physics. Physical
  Review Letters. Available at http://xxx.lanl.gov/abs/astro-ph/9908085.

 
  Huterer, D., and M.S. Turner. Preprint. Probing the dark energy:
  Methods and strategies. Available at
  http://xxx.lanl.gov/abs/astro-ph/0012510.
 
  Further Readings:
 
  Cowen, R. 2001. Starry data support revved-up cosmos. Science News
  159(March 31):196.
 
  ______. 1998. The greatest story ever told. Science News 154(Dec.
  19&26):392. Available at
  http://www.sciencenews.org/sn_arc98/12_19_98/Bob1.htm.
 
  Weiss, P. 2001. Force from empty space drives a machine. Science News

  159(Feb. 10):86.
 
  Sources:
 
  Andreas Albrecht
 
  Department of Physics
 
  University of California, Davis
 
  One Shields Avenue
 
  Davis, CA  95616
 
  Robert R. Caldwell
 
  Department of Physics and Astronomy
 
  Dartmouth College
 
  6127 Wilder Laboratory
 
  Hanover, NH  03755-3528
 
  Paul J. Steinhardt
 
  Department of Physics and Astronomy
 
  University of Pennsylvania
 
  209 South 33rd Street
 
  Philadelphia, PA  19104-6396
 
  Michael S. Turner
 
  Department of Astronomy and Astrophysics
 
  University of Chicago
 
  Chicago, IL  60637-1433
 
  http://www.sciencenews.org/articles/20010407/bob14.asp
 
  From Science News, Vol. 159, No. 14, April 7, 2001, p. 218.
 
  Copyright (c) 2001 Science Service.  All rights reserved.
 
  ———————————
 
  Interested in new developments in science and technology? Consider
  subscribing to Science News. Visit Science News Online at
  http://www.sciencenews.org/ for access to additional news articles and

  subscription

Pakistans Islamic Sharia law requires female victim of rape to have four male witnesses, or she faces prosecution for adultery.

Saturday, November 25th, 2006

The law that lets women be raped changes… a little 

Christina Lamb, Islamabad 

 

One woman is raped every two hours and one gang-raped every eight hours, according to Pakistans independent Human Rights Commission. But under the ordinance introduced in 1979 by the dictator General Zia ul-Haq as part of an Islamisation campaign, rape cases have to be dealt with in sharia courts. Victims need four male witnesses to the crime — or face prosecution for adultery. 

One by one and silently, Shahnaz Bokhari lays out what she calls her “broken lives?. Large coloured sheets of paper are pasted with press cuttings and photographs, each headed with a girl’s name or occasionally two. Soon both her desk and the table are covered with the sheets, and then the floor. 

“Uzma, Nadia, Sobia, Nazish . . .? she chants. Next to many of the names is the word “raped?. Underneath each of these is written “victim of the Hudood ordinance?, a draconian law that makes it almost impossible to prosecute a rapist and often lands the victim in jail. 

As chief co-ordinator of Pakistan’s Progressive Women’s Association, Bokhari takes up their cases and often ends up sheltering the women in her house, despite receiving threats. “Look,? she says, pointing at a green sheet of cuttings from August 2005 headed “Fatima?. “She was just three years old and he raped her, then killed her . . . Of course the man has gone free.? 

Shockingly, the pile of papers on Bokhari’s floor represents cases just from the past year or so and only in the twin cities of Islamabad and Rawalpindi. “Here alone we had 580 cases of women behind bars last year because of the Hudood ordinance,? she says. 

More than 2,000 women are in jail for intercourse — either victims of rape or those who have eloped to marry for love and have then been reported, usually by one of their parents. 

But after 27 years of protests by activists such as Bokhari, Pakistan’s Senate finally voted last week to pass an amendment to the ordinance drawn up by President Pervez Musharraf, despite resignation threats from MPs from religious parties. 

Described by Musharraf as “a victory of justice, truth and the progressive forces?, the Women’s Protection Bill will allow civil courts to try rape cases and admit DNA evidence. It also drops the penalty of stoning to death for sex outside marriage, although activists acknowledge that such sentences are not carried out. 

“I’ve given almost half my life to this,? says Bokhari, who is in her fifties, “so many days demonstrating in baking heat and freezing rain, being beaten and arrested. I hope and I pray that this law is the beginning of a new enlightened tomorrow for the women of Pakistan.? 

The women’s plight was highlighted by the case of Mukhtaran Mai, a 30-year-old woman from a village in southern Punjab who was gang-raped at gunpoint in 2002. This brutal attack was a punishment decreed by a tribal council after her 12-year-old brother was accused, wrongly, of raping a girl from a rival tribe. 

Instead of committing suicide, which is often seen as the only way out for women whose honour has been besmirched, Mukhtaran went to court. 

After her case was taken up by the international media, the four perpetrators and two accomplices were sentenced to death. The convictions were later overturned but the men remain in prison awaiting a retrial. 

Mukhtaran was named “woman of the year? last year by an American magazine. There was an outcry when Musharraf apparently refused to give her permission to travel and told The Washington Post: “This has become a money-making concern.? 

He added: “A lot of people say if you want to go abroad and get a visa for Canada or citizenship and be a millionaire, get yourself raped.? 

Musharraf denied making the comments but the interview had been taped. Mukhtaran was given a passport and used the money from her award to set up a school. She now produces a weekly blog on the problems of women in her village. As she cannot read or write, she tells her stories to a local journalist and they are printed on the website of the BBC Urdu service. 

 

 

 

Press Freedom: US Drops To 53rd Place. 120 journalists and 53 bloggers are in jail worldwide for attempting to provide news and opinion.

Friday, November 24th, 2006

 Currently about 120 journalists and 53 bloggers are in jail worldwide for attempting to provide news and opinion. 

The US dropped 9 places in the 2006 Index of Press Freedom by Reporters Without Borders issued last month. 

52 countries ranked higher and 115 ranked lower. 

Finland, Iceland, Ireland and the Netherlands tied for first, with no recorded censorship, threats, intimidation or physical reprisals — criterion that the Paris-based group uses to rank countries. 

The US was outranked by most of the European counties, but also by such unlikely nations as Slovakia, Slovenia, Bosnia and Herzegovina, Estonia, Namibia, Bulgaria, Serbia, and Botswana. 

As you might expect, the three worst violators of free expression were North Korea, at the bottom of the Index at 168th place, Turkmenistan (167th) and Eritrea (166th). 

One particularly egregious US case cited is the jailing of Josh Wolf, a freelance journalist and blogger, who has been imprisoned more than four months for refusing to hand over video tapes he filmed in San Francisco of a protest against the G8 Summit last year. 

“As journalists we use our cameras and words to share the world around us,” Josh Wolf wrote from jail. 

“We hope that shedding light on the situation will help to bring about change and that having a camera rolling will help curtail injustice. As they say, ‘The whole world is watching.’” 

Earlier this week the Ninth Federal Appeals Court ruled that Wolf might be imprisoned until July 2007 when the Grand Jury expires. The video footage of the attack on a police car was aired by a cable TV station and then picked up by local affiliates of the national networks. 

“He’s not a criminal,” said Lucie Morillion of Reporters Without Borders. “He was just protecting his sources, which is something many journalists have to do. The court decision is absurd.” 

“This young blogger does not represent any threat to national security, so keeping him in custody is a completely disproportionate step,” said a representative of the worldwide press freedom organization — a.k.a. Reporters Sans Frontiers — after the November 16th ruling. 

“The judges seem to want to teach a lesson to Wolf, a young man whose insolence exasperated them.” 

Wolf’s only hope would be a successful appeal to the US Supreme Court, which does not look promising in this climate. 

Other cases of US press intimidation include Sudanese cameraman Same al-Hajj, who works for the pan-Arab broadcaster Al-Jazzeera, who has been held without trial since June 2002 at the US military base at Guantanamo; and Associated Press photographer Bilal Hussein, who has been held by US authorities in Iraq since April. The AP has been trying to secure his release for seven months. 

During the first year of the index, in 2002, the US was ranked 17th. The US has fallen nine places since last year’s ranking of 44, and 36 places since 2002. 

Relations between the media and the Bush administration sharply deteriorated after the Justice Department increasingly used “national security” and the Patriot Act to intimidate journalists who questioned “the war on terrorism,” according to the group. 

33 US state courts recognize some form of Shield Law, but the Federal Courts have consistently refused to recognize the media’s right not to reveal its sources. In recent years the US government has shown renewed zeal, threatening journalists whose investigations have no connection at all with terrorism. 

Bloggers — including us at the Huffington Post — and websites, as well as grassroots journalists, are becoming increasingly vulnerable. They do not seem to be protected by any US laws at all, since they are not paid MSM staff professionals. But as the Judith Miller case shows, even New York Times reporters are not immune. 

Other countries’ rankings include: Canada (16), Israel (50), Mexico (132), Iraq (154), China (163) and Cuba (165). 

In addition to the US, other developed nations that also fell in the rankings are France, Japan, and Denmark. 

France (35th) slipped five places during the past year, to make a loss of 24 places in five years. The increase in searches of media offices and journalists’ homes is disturbing media organizations and trade unions. 

Rising nationalism and the system of exclusive press clubs (kishas) threatened democratic gains in Japan, which fell 14 places to 51st. The newspaper Nihon Keizai was firebombed and several journalists physically attacked by far-right activists (unyoke). 

Fallout from the row over the “Mohammed cartoons” 

Denmark (19th) dropped from first place because of serious threats against the authors of the Mohammed cartoons published in 2005. For the first time in recent years in a country that is very observant of civil liberties, journalists have needed police protection due to threats against them. 

Without press freedom, there can be no democracy, and without democracy…… 

jfleetwood@aol.com 

 

Court of Appeals says Franklin Cirt. Court exceeded its jurisdiction in dismissing indictments of officials pardoned by Gov. Fletcher. Cases sent to District Court for dismissal.

Friday, November 24th, 2006

In four cases involving indictments of Republicans which were pardoned by Governor Ernie Fletcher have been set aside on appeal by the Ky. Court of Appeals.  The appellate court held that the dismissal of the indictments by the Franklin Circuit Court was in error due to a lack of jurisdiction in the Franklin Circuit Court.

The defendants in the four cases were Vincent Fields, Dave Disponett, J. Marshall Hughes, and Daniel Groves.

The Appellate court held that since the indictments were all misdemeanors, and the Franklin Circuit Court does not have subject matter jurisdiction of misdemeanors. The cases where remanded to the Franklin District Court.

The ruling, by upholding the right of Governor Fletcher to issue blanket pardons to the four defendants, suggests that the only action that can be taken by the Franklin District Court is to dismiss the indictments due to the pardon rulings.

In its ruling in the four cases, the Ct. of Appeals also held that the Ky. Constitution does not require a party who receives a Gubernatorial pardon to affirmatively request the protection of the pardon.