Archive for January, 2007

BOURBON CIRCUIT COURT CLERK and DEPUTY INDICTED FOR TAMPERING WITH COURT RECORDS

Wednesday, January 31st, 2007

Portions quoted from The Lexington Herald Leader
Two suspended circuit court clerks in Bourbon County, Clerk Sherry Rankin, and Deputy Clerk Whitney Jones, have been indicted after a Bourbon County special grand jury investigation.  A search warrant filed in the cases indicated that the investigation centered on whether the clerk and deputy clerk changed cases or altered judges’ orders without consent, possibly involving traffic citations.

Rankin who was reelected as Bourbon Circuit Clerk in November, was charged with four counts of official misconduct.  Her Deputy Clerk, Whitney Jones was charged with one count.  All charges against the two clerks were Class A misdemeanor offenses.

Papers filed in the case alleged that some traffic related court documents were not filed, that some documents were withheld from judges, and failure to appear notations on dockets were omitted.

The grand jury alleged that Rankin tampered with records four times in 2006 without informing of obtaining permission  from the presiding judge.

Fayette Commonwealth’s Attorney Ray Larson was appointed as a special prosecutor and presented the case to the grand jury  on Tuesday.  Their arraignment is scheduled for Feb. 9th.

How to get a human to answer the phone.

Wednesday, January 31st, 2007

Tired of calling a large corporation and trying to get someone to listen to you? Tired of punching numbers to select an option that never seems to fit your problem?  Well there may be a way that you can speed your way to a real human who may be more likely to answer your questions.
 

Getting to a human

Once you have a phone number, here are some tips to try to get through the computer to get to a live human:

  1. Interrupt. Press 0 (or 0# or #0 or 0* or *0) repeatedly, sometimes quickly. Unfortunately the same keystroke does not always work for each company. Many IVRs will connect to a human after a few “invalid entries”, although some IVRs will hangup. :-(
  2. Talk. Say “get human” (or “agent” or “representative”) or raise your voice, or just mumble. :) The IVR might connect you to a human after one of these key or unknown phrases.
  3. Just hold, pretending you have only an old rotary phone.
  4. Connect to account collections or sales or account cancellation; they always seem to answer quickly.

First ask them for their name and rep number (so they know you are writing it down, and thus so they are more likely to help you.)
Then ask them to transfer you to the department you need. Sometimes they will put you ahead of the queue, although sometimes they will send you to the end (and thus in those cases this tip is useless).

  1. Toll call. For credit cards, if the expected wait time is too long, hangup and try to call back on their non-toll-free number, as they often have shorter queues.
  2. Selecting the option for Spanish will sometimes get you a bilingual human more quickly than if you just waited for an English-only operator.

When you do finally find a human, ask them how to connect directly the next time (in case your call gets disconnnected etc), and be sure to tell us so we can then list their number here. :-) .
If one of the above does not work, see the gethuman database.
More information is found at: www.gethuman.com
This site offers suggestions on how you can get a real person online to help.
 

KET to feature two night PBS special on U.S. Supreme Court.

Wednesday, January 31st, 2007

Hal Boedeker  Sentinel Television Critic

 Documentary examines and celebrates the high court and its towering legal minds.

PASADENA, Calif. — PBS offers a 200-years-plus history in The Supreme Court and enlists Chief Justice John Roberts to offer analysis. But this four-hour program, which starts tonight, doesn’t examine the court’s future.

Several court experts obliged during the recent tour of the Television Critics Association.

“At this point, at least, we will not have another resignation before George Bush leaves office,” predicts journalist Joan Biskupic, author of a Sandra Day O’Connor biography.

Biskupic says the two eldest justices, John Paul Stevens and Ruth Bader Ginsburg, seem in pretty good shape.

“I think they all realize how narrowly divided the bench is,” Biskupic says. “The ones who are the oldest are the ones who are hanging on right now in terms of dear life.”

Biskupic calls Stevens “probably the most important justice most of your readers have never heard of because he’s so effective.”

Walter Dellinger, who was acting solicitor general in the Clinton administration, says Democrats’ control of the Senate changes the picture for Bush.

“It would severely limit the persons who could be confirmed,” Dellinger says. “Perhaps a member of the Senate well-regarded by colleagues. It would have to be a very unusual choice.”

This two-part documentary airs from 9 to 11 tonight and concludes at the same time Feb. 7 on WMFE-Channel 24. The program takes a panoramic view of the court, its pivotal figures and notable cases.

In the program, Justice Hugo Black emerges as a more influential figure than Chief Justice Earl Warren.

The documentary celebrates William Rehnquist, an often-unsung chief justice who died in 2005.

“Thurgood Marshall and [William] Brennan said he [Rehnquist] was even better than Warren in terms of his efficiency and amiability,” says Jeffrey Rosen, professor of law at George Washington University Law School. “His colleagues had so much affection for him. . . . They certainly rallied around him when he had thyroid cancer.”

In many ways, The Supreme Court plays like a highlight reel, which could prompt viewers to push to learn more. Who are the court’s towering figures?

“This series makes John Marshall, probably the greatest sitting chief justice, appear very dynamic,” Biskupic says.

She also mentions Oliver Wendell Holmes and Black, adding that the current court holds great fascination. “This is a very young bench,” Biskupic says. (Roberts turned 52 Saturday.)

In picking the most-influential, Dellinger cites the justice for whom he clerked: Black. Dellinger also mentions Marshall, Brennan, Stevens and O’Connor. Former Justice O’Connor takes part in the program.

“I think O’Connor is an enormous historic figure who carried the court, by her pragmatism, through its most difficult years and was really an extraordinary justice,” Dellinger says.

The Supreme Court provides another angle to understanding a country frequently documented on television through presidencies, wars and depressions.

“The history of the court is completely intertwined with the history of America, and the court changes as America changes,” Biskupic says. “The Supreme Court starts to alter how it’s ruling in part because of what’s happening out in the streets.”
 

TWO DEMOCRATS AND FOUR REPUBLICANS FILE FOR ATTORNEY GENERAL

Wednesday, January 31st, 2007

  In the democratic primary election for Attorney General, Louisville candidate Jack Conway will face career Attorney General’s Officer employee Robert v. Bullock, for a chance to replace AG Greg Stumbo.
   In the republican primary, Representative Stan Lee, will face three other candidates.
Jack Conway   Democrat
Robert V. Bullock  Democrat
Jon Larson  Republican
Philip C. Kimball  Republican
Stan Lee Republican
Tim Coleman Republican
 

NEGATIVE vs. POSITIVE WORDED CRIMINAL INSTRUCTIONS

Wednesday, January 31st, 2007

     By LawReader Senior Editor Stan Billingsley    An unpublished decision issued Jan. 26, 2007, (Bobbitt v. Commonwealth), issued by the Ky. Supreme Court, discussed the issue of positive vs. negatively worded criminal jury instructions and is as important for its negative implications as it is for its positive ruling. (There we grammatically used double negatives in one sentence correctly!).
 The Court upheld the form of wording used by Justice Cooper in his criminal instruction forms. But what the court did not say may be just as important.The Supreme Court did not say that you must word your criminal instructions in the Cooper-Negative format….it just said that it was okay to do so.  So we suggest that there is nothing wrong in submitting criminal jury instructions in a traditional positive-format.

There are three ways to word criminal instructions:

1) TRADITIONAL – POSITIVE:  You shall find the defendant in this case not guilty unless you are satisfied from the evidence alone, and beyond a reasonable doubt, that he is guilty. If upon the whole case you have a reasonable doubt that he is guilty, you shall find him not guilty. 2) COOPER VERSION – NEGATIVE :  You will find the Defendant guilty of ____ under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:3) Federal Model Criminal Instruction:
 

1.2 THE CHARGE—PRESUMPTION OF INNOCENCE

This is a criminal case brought by the United States government. The government charges the defendant with [crime[s] charged]. The charge[s] against the defendant [is] [are] contained in the indictment. The indictment is simply the description of the charge[s] made by the government against the defendant; it is not evidence of anything.[In order to help you follow the evidence, I will now give you a brief summary of the elements of the crime[s] which the government must prove to make its case: [supply brief statement of elements of crime[s]]. These instructions are preliminary and the instructions I will give at the end of the case will control.]

The defendant has pleaded not guilty to the charge[s] and is presumed innocent unless and until proved guilty beyond a reasonable doubt. A defendant has the right to remain silent and never has to prove innocence or present any evidence.

In Bobbit v. Commonwealth the Court focused on the ultimate definition of the presumption of innocence.  The Court saw no harm in the method by which Justice Cooper informs the jury they must find the defendant guilty.  This wording by Justice Cooper has bothered defense lawyers for sometime.  We see nothing in this case that prevents a defense lawyer from introducing his own positively worded instruction.

The key thing to remember is that if you fail to submit your own instruction you may not raise this issue on appeal.  Further, the trial court may choose our of habit or personal preference to issue the Cooper style instruction, and Bobbitt will allow him to do so.

We note in the Bobbit decision that the court cited two cases for their reasoning. Mills v. Commonwealth and Sanders v. Commonwealth (cites are mentioned below).  We have reviewed both of these decisions and must admit that we do not find the clear language in either of these decisions to clear up this issue.

Conclusion:  There is nothing wrong with either a positively or negatively worded criminal jury instruction.  The issue is whether or not the presumption of innocence is clearly stated, and both versions ultimately have been found to do so.

See:

Bobbitt v. Commonwealth, 2005-SC-000487-MR.pdf . Jan. 26, 2007, an unpublished decision of the Ky. Supreme Court:
 APPEAL FROM JEFFERSON CIRCUIT COURT – HON . F. KENNETH CONLIFFE, JUDGE
 

C. The trial .court’s jury instructions were proper.

The Appellant claims that the trial court failed to properly instruct the jury in a

manner consistent with the presumption of innocence and burden of proof. He states

that the jury instructions should have been phrased in the negative.

The jury instructions began as follows: “You will find the defendant …. guilty of robbery in the first degree under this instruction if and only if you believe from the evidence beyond a reasonable doubt all of the following.” The instruction was taken from Cooper’s instruction book and followed the form instruction . See W. Cooper, Kentucky Instructions to Juries, Criminal, §6.14 (1999). The Appellant argues that the instruction should have stated . “you will find the Defendant not guilty unless . . .”
  But, the jury was given an instruction on the presumption of innocence which stated : “the law presumes a defendant to be innocent of a crime and the indictment shall not beconsidered as evidence or as having any weight against him . You shall find the

defendant not guilty unless you are satisfied from the evidence alone and beyond a

reasonable doubt that he is guilty if upon the whole case you have a reasonable doubt

that he is guilty you shall find him not guilty.”

The presumption of innocence instruction given here is in line with proper language
provided in RCr 9 .56(1)3 and Cooper supra §2.02 . This court has held that such a
presumption of innocence instruction is sufficient. See Mills v. Commonwealth , 996
S .W .2d 473, 491 (Ky. 1999); Sanders v. Commonwealth 801 S .W.2d 665 (Ky. 1990). There was no error. (emphasis added by LawReader).
 

HOWARD FAVORED AMONG NINE CANDIDATES FOR VACATE CT. OF APPEALS SEAT.

Wednesday, January 31st, 2007

Nine candidates have filed for the vacant Court of Appeals seat vacated by the resignation of R.W. Dyche.
 

James Howard was appointed in July to fill this seat when Dyche originally retired.  Howard served until the first of January when the seat again became vacate.
 

The Judicial Nominating Commission will soon nominate three people to fill the seat until the Nov. election results are certified.  The Governor who appointed Howard last July, would logically seem to be inclined to reappoint Howard to this position.
 

The nine candidates who filed are:
          Clay M. Bishop Jr.          3 rd                      Appellate District  1st              Nonpartisan
          Franklin A. Stivers          3 rd                      Appellate District  1st              Nonpartisan
          James I. “Jim” Howard   3 rd                      Appellate District  1st              Nonpartisan
          Jeff Eastham                  3 rd                      Appellate District  1st              Nonpartisan
          Larry E. Conley              3 rd                      Appellate District  1st              Nonpartisan
          Marcia A. Smith              3 rd                      Appellate District  1st              Nonpartisan
          Michael O. Caperton      3 rd                      Appellate District  1st              Nonpartisan
          Michele Wilson                3 rd                      Appellate District  1st              Nonpartisan
          Paul F. Henderson         3 rd                      Appellate District  1st              Nonpartisan
There will be a runoff in the May Primary, and the top two vote getters will oppose each other in the Nov. election for the balance of the seven years of the eight year term of office.

HOW MANY PEOPLE HAVE THE SAME NAME AS YOU?

Wednesday, January 31st, 2007

Vanity.  I admit it.  I could not resist checking out this site that tells you how many people have your same name.  Seems that when I entered my name in this simple search engine it revealed that there are  14,398 Billingsleys in the U.S. but only 14 people have the same first name and last name.  You will surely enjoy checking out your name. Go to: http://howmanyofme.com/search/

 

THE MAY GUBERNATORIAL TICKETS ARE FIXED.

Tuesday, January 30th, 2007

On the Republican side, Anne Northup and Billy Harper will challenge Governor Fletcher.

 

On the Democratic side, six candidates for the Office of Governor of Kentucky have filed: Jonathan Miller, Steve Beshear, Steve Henry, Gatewood Galbraith, Jody Richards, and Bruce Lunsford.

 

Charlie Owen did not make the filing deadline of 4 P.M. Jan. 30th. after Ed Hatchett who was thought to be willing to be the running mate with Owen dropped out of contention.

 

6TH. CIRCUIT CT. OF APPEALS TO REVIEW BUSH SPY PROGRAM WEDNESDAY

Tuesday, January 30th, 2007

Dan Sewell Associated Press 

CINCINNATI — President Bush’s program of secretly monitoring communications without a court warrant faces legal assaults on its constitutionality in arguments Wednesday before a federal appeals court. 

The government is appealing the ruling of a federal district judge in Detroit who said the warrantless surveillance violated rights of privacy and free speech as well as separation of powers. The Justice Department last week urged the 6th U.S. Circuit Court of Appeals to throw out the case, saying it no longer was at issue. 

Attorney General Alberto Gonzales said this month that the secret panel of judges who oversee the Foreign Intelligence Surveillance Act, passed by Congress in 1978, now is reviewing and approving applications to monitor people believed to have terrorist links. The Justice Department said in a court brief that means there’s “no longer any live genuine controversy to adjudicate.” 

The American Civil Liberties Union, which sued over the warrantless surveillance a year ago, countered that there’s no guarantee the president won’t resume what the government calls the Terrorist Surveillance Program outside the court. The ACLU also is challenging government secrecy in the case, saying it can’t determine whether current actions are following the law. 

“For all the drama around the case, we see the ultimate legal issue to be a very narrow, noncontroversial one — that is, when Congress passes a law, the president has to follow it,” said Ann Beeson, the ACLU’s lead attorney on the case. “If they were really committed to following the FISA law in the future, they should have no objection to being bound by the district court order.” 

The Justice Department said in brief filed Tuesday that the court shouldn’t be asked to rule on a hypothetical question about the future. U.S. District Judge Anna Diggs Taylor had ordered the government to halt the warrantless surveillance. 

The National Security Agency program monitors international phone calls and e-mails to or from the United States when one party is believed to be a terrorist or to have terrorist ties. The government had said it sometimes needed to act without waiting for the secret court. The administration also has said the program has helped prevent terrorist attacks. 

“If al-Qaida is calling in to the United States, we want to know why they’re calling,” the president said while defending the program last year. 

A three-judge panel will hear the arguments in Cincinnati. The same panel in October ruled that the government could continue the monitoring while it appealed. 

Legal scholars and attorneys who have argued before the 6th Circuit say it’s difficult to characterize the court’s leanings on such issues. 

“It’s been pretty sharply divided on a number of issues, such as the death penalty,” said Carl Tobias, a law professor at the University of Richmond (Va.) who has been following this case. 

Of 14 judges in the circuit, eight were appointed by Republican presidents. On this panel, Judge Julia Smith Gibbons was appointed by President Bush, Judge Alice M. Batchelder by his father, and Judge Ronald Lee Gilman by President Clinton. 

The panel probably will not rule immediately, and its ruling could result in appeal to the U.S. Supreme Court or a review by the full 6th Circuit. The 6th Circuit includes Ohio, Kentucky, Michigan and Tennessee. 

The ACLU filed its lawsuit on behalf of journalists, scholars and lawyers claiming the program has made it difficult for them to do their jobs because they believe many of their overseas contacts are likely targets. Other groups have also filed challenges to the program in other courts; this case has proceeded the furthest. 

 

GOV. FLETCHER CALLS FOR TAX BREAK FOR MILITARY but opposed relief a year ago.

Tuesday, January 30th, 2007

In a press released issued by the Governors Office, Gov. Fletcher has called for legislation to  provide complete exemption of active duty and reserve military pay from Kentucky income tax. 
The link to the full story was given as: http://kentucky.gov/Newsroom/governor/20070130taxes.htm
 

In an Editorial on Feb. 1, 2007, the Courier Journal wrote: 

A year ago, Gov. Fletcher didn’t support a more modest proposal to exempt military personnel on active duty. 

No doubt he knew then what he should now: that passing out tax exemptions erodes the tax base and puts more of a burden on everyone else. 

Further, what helps soldiers’ families are the same things that help everyone else: good schools, roads and jobs, for example. 

Exempting folks on the basis of their jobs is unfair. If soldiers are exempted because of the service they provide, then why not the police and firefighters who labor on the front lines of homeland security, and the teachers and social workers who daily defuse our own social time bombs? 

If the Fletcher administration were either serious or fiscally responsible, it would have proposed a way to make up the approximately $18 million cost. The proof that this proposal is politically craven is that the administration says only that it will be paid for by “a projected increase in revenue.” Please. 

Kentucky is one of the poorest states in the nation, with too many educational, social and health needs to list. 

Yet the Governor acts as if $18 million will magically appear. This probably shouldn’t be a surprise, coming from a man who has been traveling the state getting folks hopped up about how to spend the so-called $137 million “surplus.” 

Here is the reality: College students’ tuitions are soaring. Kentucky teachers make less than the average of surrounding states. Louisville airport neighbors still wait to be relocated. Drivers idle as needed roads and bridges aren’t built. Children with special needs and others living in unsafe conditions wait in line for help. 

In a sense, these people will be paying for this tax exemption, just as they paid for one on pension income in the ’90s. 

The Governor knows this. Unfortunately, he’s desperate for votes. 

 

 

 

KBA MOVES CLIENT ASSISTANCE PROGRAM INTO OFFICE OF BAR COUNSEL

Tuesday, January 30th, 2007

Ben Cowgill, former KNA bar counsel, has posted an important notice regarding the KBA client assistance program.
 About eight or ten years ago, the Kentucky Bar Association launched the KBA Client Assistance Program (“CAP”) as a way of helping Kentucky lawyers and their clients resolve disagreements and misunderstandings outside of the disciplinary process.
It appears that the KBA decided to make that change in order to move toward a “central intake” approach to the handling of bar complaints and other reports of attorney-client disagreements.  To read Cowgills  full article please go to: http://cowgill.blogs.com/legalethics/2007/01/kba_moves_clien.html     

ENGLISH POLICE CHIEF: DO NOT MAKE MY OFFICERS JUDGE AND JURY

Sunday, January 28th, 2007

England has instituted a program where police officers on the beat, can impose small fines on the spot. Police Chief Paul Kernaghan argues that this is not the proper role of police officers.

By Victoria Taylor  Crime reporter, United Kingdom
 

HAMPSHIRE’S police chief has hit out at on-the-spot fines, saying his officers should not be judge and jury.  Chief Constable Paul Kernaghan spoke out as it was revealed Hampshire is among the worst at dishing out fines for low-level crime.

Mr Kernaghan prefers officers to collect evidence and let the courts decide whether an offence has been committed. He also dislikes them being used as part of a Home Office ranking system and fears it could lead to more fines being handed out to boost the number of offences cleared up.

But some experts said the fines of either £50 or £80 were the best way to deal with minor offences that would otherwise just clog up the courts and police officers’ time.
Mr Kernaghan said: ‘Offences Brought To Justice is a target which is outside the control of any one agency and, indeed, in one crucial aspect is quite rightly outside the control of any criminal justice agency.

‘Yet, it is a specific performance indicator for the police service.
‘I accept the police can influence the number of penalty notices issued and to a degree the number of cautions issued but we have no control whatsoever over the number of convictions secured in the courts.

‘Our duty is to present the best evidence possible to the courts, not to secure convictions per se.

‘A better measure would be the number of arrests we make or the number of files we submit to the Crown Prosecution Service.

‘But to narrowly focus on convictions is illogical.  ‘We should be judged on matters