Archive for September, 2007

Shannon Raglands book The Thin Thirty continues to draw national attention

Sunday, September 30th, 2007

Recently Mike Mooneyham, a columnist with the Charleston (SC) Post & Courier
 

wrote about the book which details the days of Charlie Bradshaw and the University of
 

Kentucky football team in l962.   The Thin Thirty is available on Amazon.com.

Book details scandalous activities of gay wrestling promoter

By Mike Mooneyham  The Post and Courier  Sunday, September 30, 2007

 

Southeastern Conference football, exploitation of players, game fixing and a gay sex scandal involving a legendary pro wrestling promoter and a Hollywood film icon. How’s that for a tease?

And it’s just the tip of the iceberg in one of the best books on college football to come down the pike in quite some time. Shannon Ragland’s “The Thin Thirty” is a disturbing yet fascinating look at the 1962 University of Kentucky football team and its first-year coach Charlie Bradshaw, a Bear Bryant disciple, whose team was thinned from 88 to 30 players by his brutal conditioning tactics.

Bradshaw desperately wanted to replicate the Bryant magic, restore the Kentucky football program and lead it to rightful gridiron glory. Preaching family, God, football and academics, he intended to build a national champion on the football field, but his flawed vision rendered his preaching hollow when he stepped onto the practice field and brutalized his players.

The book, which delves into the heartbreaking experiences of a group of players who endured that shameful period, also tackles some revealing off-the-field issues, including a gay sex scandal that involved longtime pro wrestling power-broker Jim Barnett and film star Rock Hudson, along with allegations that some UK players may have tried to fix a game that season against lowly Xavier.

Although the events occurred nearly five decades ago, “The Thin Thirty” ($18.95, Set Shot Press) paints an ugly portrait of college football at its absolute worst — a collection of young men exploited and brutalized by a coach and a university with warped priorities — and is bound to give many readers a new perspective on big-time college football. It also conveys an inspirational story of a team, many of whom were traumatized for life, that overcame the darkest chapter in the history of Kentucky athletics, to become a part of football history.

Ragland, with extensive chapter notes on sources and more than 100 interviews, does a stellar job in researching this dark period.

Of particular interest to wrestling fans is the book’s claims of a three-year period in Lexington, Ky., in which the erudite Barnett is purported to have provided numerous members of the team with perks in return for sexual favors. Barnett’s posh residence, according to the book, became a home away from campus for a number of players and a place where the mat matchmaker could do his own “recruiting.”

An entire chapter, titled “Predators in Their Midst,” is devoted to the sex scandal.

Barnett, who died in 2004 at the age of 80, was a man of diminutive stature who wore stylish three-piece suits and horn-rimmed glasses. A worldly man of old money, the flamboyant promoter’s passion for fine art, Mozart and penthouse living would lead a fellow Georgian, President Jimmy Carter, to appoint him to the National Council for the Arts during the 1970s.

Barnett’s relationships with the movers and shakers of society helped him immensely with his wrestling business, to the point where few would challenge him.

“He had a lot of political connections,” recalled one former associate. “He always maintained a working relationship with the police department, which was very important, and he always made sure that certain judges got very nice gifts, along with senators and state reps. That’s why he was so successful all these years keeping the athletic commission out (of wrestling).”

Despite being gay and effeminate in a business run by ex-jocks, it was in the world of professional wrestling where James E. Barnett enjoyed a far-reaching scope of influence. One of the most powerful and influential men in the industry over the past half-century, Barnett was an integral part of pro wrestling’s national television boom in the ’50s, oversaw a boom period in Australia during the ’60s, and worked with Ted Turner in the ’70s in bringing the sport to a new cable audience. Brokering some of the biggest transactions in wrestling history, including the sale of Crockett Promotions to Turner in 1988, the always-behind-the-scenes Barnett also was in on the grand floor of Vince McMahon’s national expansion in the mid-’80s.

But in 1959 in Lexington, writes Ragland, Barnett and longtime companion Lonnie Winter, with their fine clothes and deep pockets, cut quite a swath cruising the streets of the Kentucky town, looking for talent, in their fancy convertible Cadillac. It all started just that simple with a chance meeting between a gay wrestling promoter and a group of freshmen-to-be-footballers at the University of Kentucky, according to Ragland, and the following question posed by Barnett in a Southern drawl with perfectly strung-out diction: “Any of you boys want to go for a ride in my Cadillac?”

Barnett and Winter soon moved from an expensive hotel in downtown Lexington to an extravagant home on Lakewood Drive. Barnett, Ragland notes, would routinely send his car to fetch Hudson from the Cincinnati airport and bring him to the residence. Hudson, whose homosexuality was well-closeted at the time, would become a regular visitor at the home, where Barnett would invite the football players to lavish parties that would include all the steak, lobsters and delicacies they could eat, along with a bartender supplying ample amounts of liquor and sometimes even women serving as a backdrop.

“What better draw for Lakewood was there than Rock Hudson? If he called and invited a player to attend a party, who could resist such an invitation? He was a movie star, a worldly and virile bon vivant … As remarkable as it was, Hudson quickly became involved with the UK football team and engaged in sexual relationships with them.”

Mixing money, booze, food and persuasion, a number of impressionable and vulnerable players succumbed, writes Ragland. The stars were on the payroll, and each year a new group of players would be introduced to the home on Lakewood Drive. Many of them were naive and considered it a game. But the free money, free trips, free clothes, free gifts didn’t come without a price.

The scandal had actually started during the tenure of coach Blanton Collier, before Bradshaw took the helm of the Kentucky program, although the book makes it clear that Collier never knew what was happening right under his nose.

Ragland also names former Atlanta Falcons head coach Leeman Bennett, an assistant under Bradshaw at the time, as having known about the Barnett connection to the team, suggesting he kept quiet assuming it was “boys being boys.” Bennett and other assistant, says Ragland, “had neither the will nor the power to end it — the scandal was viewed by them as just something that a few college boys were doing but that fundamentally it didn’t affect what happened on the field.”

Kentucky had been hit with a basketball points-shaving scandal a decade earlier and, to Bradshaw’s credit, he made it go away quietly when the sex and gambling incidents came to light. Fearing that another scandal could destroy the school’s athletics program, Bradshaw put an end to the practice.

According to the book, Barnett and Winter, whom Ragland claims enjoyed some level of police protection prior to the gambling scandal, left town quickly in 1963, “almost overnight, halfway around the world, and took their wrestling promotion to Australia.”

It you are advising a client in setting up a charitable trust you should consider how Bank Involvement can cause a Trust to Veer From the Donors Wishes

Sunday, September 30th, 2007

By STEPHANIE STROM  : September 29, 2007
When Mamie Dues died in 1974, she left the fortune her husband, Cesle, had made in movie theaters in El Paso to a foundation controlled by a local bank there. The couple had no heirs and no other family.
“They lived modestly in a little apartment house and spent most of their time watching TV,? recalled J. Sam Moore Jr., a lawyer who drew up their wills. “They took little or no interest in civic affairs, but they did feel strongly about this place, and they mandated that their foundation be concentrated on crippled children in El Paso, and in Texas more broadly.?Three decades later, however, the foundation’s legal address is in Delaware, and a global bank, JPMorgan, manages it from an office in Dallas. While its assets have grown to almost $6 million, from $5.1 million in 2000, its giving has fallen sharply, and the local group that once decided who would receive its money no longer has a say in its operations.

Such is the fate of many “orphan? trusts and foundations around the country that have been left in the hands of lawyers or local banks that have then been swallowed up by multinational financial institutions.

With no family members to encourage gifts to the original donor’s favorite causes, the banks and lawyers have wide latitude to change the way the trusts operate and to decide which charities will receive grants.

Banks can reduce gifts and increase the foundation’s assets, thus increasing their fees. At the same time, banks and lawyers stand to gain personal influence and prestige by selecting new charities.

“Donors who’ve given us money for years die, their money ends up in a foundation controlled by their lawyer or their bank, and we don’t get any more grants,? said Juliana Eades, president of the New Hampshire Community Loan Fund.

An examination of several orphan trusts found these cases:

¶When large global banks take over, the number of grants often drops sharply, reducing the bank’s administrative costs. But bank fees, which are based on the amount in the trust, increase..

¶Small local grant recipients that have historically received money are either dropped in favor of larger charities or receive money far more sporadically.

¶New grant recipients sometimes include the alma maters of trustees or organizations with which they and their families have personal relationships.

¶Regulators have limited ability to identify such trusts and foundations and monitor them.

No one knows how many orphan trusts and foundations exist. At the request of The New York Times, the Foundation Center identified 3,935 foundations that reported a financial institution as their sole trustee, out of a total of more than 77,000 foundations in its database. Those foundations control $5.4 billion in assets, and gave away $256.1 million in 2005.

Several banks declined to discuss their administration of such trusts. However, a JPMorgan official agreed to an interview, and he emphasized that the bank strived to honor donors’ wishes.

“When we are determining what dollars are available for distribution, we look at I.R.S. requirements, the trust’s market value to ensure its lifelong preservation, and the number of qualifying proposals from grantees,? said Larry Bothe, senior fiduciary officer at JPMorgan. “As fiduciaries, our only guiding principle and duty is to the trusts.?

JPMorgan declined to disclose how many trusts and foundations it has sole control over.

Trustees Have Discretion

Because many wills are deliberately constructed to allow flexibility to adapt to changing circumstances, banks and lawyers have considerable discretion in managing them.

“The issue is that with the consolidation of these assets that has occurred through bank mergers, bank trusteeships — which were largely a community role for the bank — have become profit centers and a way to enhance a bank’s philanthropic image,? said Rick Cohen, the former executive director of the National Committee for Responsive Philanthropy, a watchdog organization. “Law firms benefit in similar ways.?

Assets at the Cesle C. and Mamie F. Dues Foundation climbed roughly 20 percent since 2000, when JPMorgan took over its management after merging with the Chase Manhattan Bank in 2000. Fees climbed by a similar percentage. But the foundation’s giving has dropped 59 percent, from a high of $330,256 in 2000, when the El Paso Community Foundation controlled the grants, to $135,200 in the last fiscal year. In the same period, the number of organizations receiving grants fell from more than 24 to 6.

In 2002 and 2003, JPMorgan moved to sever the ties between the El Paso Community Foundation and the Dues Foundation and two other local foundations that the El Paso foundation controlled.

The El Paso foundation took JPMorgan to court and, in a settlement, retained control of the largest of the three foundations. The bank became sole custodian of the other two, Dues and the small Robert U. and Mabel O. Lipscomb Foundation.

The Lipscomb Foundation’s giving has declined 72 percent since 2000, even as the foundation’s assets rose 19 percent.

Moreover, in fiscal 2006, the bank did not abide by the terms of the Lipscomb will, which stipulated that a third of the foundation’s annual distributions would go to the Roman Catholic Diocese of El Paso, a third to the El Paso Museum of Art and a third to organizations in El Paso that aided people with hearing and vision problems. Grants were made to the diocese and the art museum in 2006, according to the foundation’s tax records, but not to any other organizations.

The bank said that it made the required gifts in the next year.

Mr. Bothe of JPMorgan defended the reduction in giving by both the Dues and Lipscomb foundations.

“When we picked things up in mid-2002 and 2003, it would not have been prudent, given market conditions, to have maintained distribution at the same historical levels,? he said. “To do so would have severely impacted the long-term viability of the trust. So we have met or exceeded the required minimum distribution and at the same time added back to value of the portfolio.?

He said the two foundations’ giving would rise, now that their assets had grown again.

In fact, its giving must increase or the foundation will fall afoul of tax laws that require foundations to distribute a minimum of 5 percent of their assets annually.

In contrast, the El Paso Community Foundation in 2005 gave more than 24 charities a total of $468,950 out of the Walter H. Hightower Foundation, the organization over which it retained control. The foundation had $9.7 million in assets and paid $64,195 to the Bank of the West for managing its money and $15,000 to the community foundation for administration.

That was only roughly $10,000 more than what JPMorgan was paid by the Dues Foundation, which had a little more than half the assets of the Hightower Foundation and made far fewer grants.

Building and Burnishing

In 2002, the Duke University School of Nursing received the largest grant in its history, $6 million, to create an accelerated bachelor’s degree program.

The university’s press release said that the “gift was given by the Helene Fuld Health Trust, HSBC Bank, USA, trustee,? and Leslie E. Bains, the bank’s executive vice president, was quoted throughout it.

The release did not mention Ms. Bains’s association with the university. Ms. Bains, who is no longer at HSBC, is a member of the board of visitors of its Terry Sanford Institute of Public Policy and its medical school, and her two children went to Duke.

“It’s not just fees that make these things attractive to banks and lawyers,? said Jack Siegel, a tax lawyer who writes a blog on charity governance. “These things are just as valuable in building business and burnishing images. The law firm gets the credit for the gift made out of a trust it manages.?

Ms. Bains, who now works for a private equity firm in New York, declined to comment. But her spokeswoman, Marcia Horowitz, said that while Ms. Bains introduced bank administrators to Duke officials, “she recused herself from any decision making regarding the awarding or the amount of a grant to Duke.?

HSBC confirmed that statement. “Because it was broadly known by HSBC senior management that Leslie Bains had a relationship with Duke, HSBC’s trust department conducted the grant-making decision without her involvement,? Francine Mindaneo, an HSBC spokeswoman, said in a statement.

The originator of the Fuld trust was Dr. Leonhard Felix Fuld, who named it for his mother and endowed it with $25 million made in the stock market and in real estate.

He was known up and down the Eastern Seaboard for wandering into hospitals and asking after the health of student nurses working there. Often, the hospital subsequently received a gift from him to underwrite a new nurses’ residence or a scholarship program.

Dr. Fuld died in 1965, and the fund ended up under the stewardship of Marine Midland Bank, making dozens of grants to develop nursing education at nursing schools in out-of-the-way places and running a fellowship program that made grants to individual nurses to further their education. In 2000, the fund made 150 grants, totaling $6.7 million.

Last year, the $136 million fund, now managed by HSBC, which took over Marine Midland, gave away the same amount of money in 28 grants. Its scheduled payment to Duke accounted for nearly 18 percent of the total. Its fees for making those grants and investment management were $576,996.

Making fewer, larger grants is a trend in philanthropy. By eliminating the labor-intensive fellowship program, reducing grants and doing away with things like an annual report, HSBC has sharply reduced the administrative costs of managing the Fuld trust. But dozens of smaller colleges and community colleges and their students no longer benefit from the trust.“The bank decided it would rather manage the trust internally,? said Richard Mittenthal, president of TCC Group, a consulting firm that set up and administered the previous grant program for Marine Midland. “The new trust officer thought our strategy was too elaborate and that the bank could manage the trust more efficiently by making smaller numbers of larger grants.?

During his affiliation with the trust, Mr. Mittenthal said, it had never given money to Duke.

Trend Spotting

Although some states require all charitable entities to make periodic reports to their attorneys general, regulators say they have no easy way of identifying problems with orphan trusts. Such filings, for instance, would not disclose relationships between sole trustees and organizations receiving grants from the institutions they control.

“How are we going to find out?? said Belinda Johns, senior assistant attorney general in the charitable trusts division of the California attorney general’s office. “There is no way to identify these organizations easily, and so we have to rely on someone telling us that there’s a problem.?

That was the case in 2002, for example, when the Minnesota attorney general replaced three lawyers who controlled the George W. Neilson Foundation after finding that they were also billing the foundation for legal work, and reportedly doing so at excessive rates.

A complaint led the Supreme Judicial Court of Massachusetts to rule in January that two lawyers who were the trustees of seven trusts known as the Crabtree trusts had charged excessive fees and to order their removal.

A Regulator Steps In

Once in a while, however, the regulators spot potential problems on their own.

In 2004, the New York attorney general’s office sent the Internal Revenue Service a letter alerting it to problems it had identified in the management of five orphaned foundations.

Until that year, Lawrence Newman and Albert Kalter, two Manhattan lawyers, served as paid trustees for all five foundations, frequently listing their wives as unpaid trustees.

William Josephson, the head of the attorney general’s charities bureau at that time, said his office was concerned that the total amount of compensation paid to Mr. Kalter and Mr. Newman out of the foundations’ money had been excessive and might amount to self-dealing and that the gifts they had made failed to honor the intentions of the donors who established them.

The attorney general’s office did not file any charges. What action, if any, was taken by the I.R.S. is not known because the agency is prohibited by law from disclosing investigations or discussing their outcomes.

But what is known is that the lawyers changed some practices after the attorney general’s office began raising questions.

Before the inquiry, for example, in 2003, the five foundations under Mr. Newman and Mr. Kalter’s control made grants totaling $596,731, and the two paid themselves $99,000 each. That year, one of the foundations, the F. Jackson Foundation, made just one grant, of $500, to the Juvenile Diabetes Foundation, and paid Mr. Newman and Mr. Kalter $6,500 each.

Under their administration, another of the foundations, the Sewell Foundation, lost more than 60 percent of the market value of its assets from 1998 through 2005, and two others lost more than 35 percent, according to their tax forms. The assets of the two largest foundations under their control, the Milton and Miriam Handler Foundation and the 1987 Theodore H. Silbert Foundation, were largely flat over that period, when most other foundations reported increases.

The foundations made grants to Mr. Newman’s and Mr. Kalter’s alma maters and to the private school Mr. Newman’s grandchildren attend in Florida, as well as to synagogues with which they are affiliated. They also made grants to Pace University, where the two men teach, and to Columbia University, where Mr. Newman is an adjunct professor.

“It’s not a legal question in a technical sense,? Mr. Josephson said. “But it raises ethical questions about the extent to which trustees should honor donor intent.? Those patterns of payment and giving prevailed until 2004, when the attorney general’s office complained to the I.R.S.

That year, the two lawyers, who declined to be interviewed, split control of four of the five foundations between themselves and slashed their fees. They also installed their children as trustees, in lieu of their wives.

In 2005, only the two largest foundations paid them fees at all, according to tax forms.

The October Term of the Sup. Ct. might redefine the court as less conservative

Sunday, September 30th, 2007

ALAN BOCK Sr. editorial writer The Orange County Register   Sept. 30, 2007

Tomorrow, the traditional first Monday in October, the U.S. Supreme Court once again will begin hearing cases that may have more influence on how we are governed over the long haul than all the deliberations and fulminations of our elected representatives in Congress.
The upcoming term just might create confusion as to the ideological character of what might be called the Roberts-Alito court in acknowledgment of the two newest members, who seem to be fairly reliable conservatives, as the term is commonly understood as applied to judicial decisions.
During the 2006-07 term, generally viewed as marking a decided shift to the right, the high court might more accurately have been called the Kennedy court, as Justice Anthony Kennedy was the deciding vote in all the major hot-button decisions.
Confounding Chief Justice John Roberts’ initial desire to preside over a court that, for the most part, issued narrow decisions supported by a preponderant majority of the nine-person court, in the 2006-07 term fully one-third of the court’s decisions were by a 5-4 margin. In all 24 of those 5-4 splits, Justice Kennedy was in the majority, making him the swing vote par excellence. In fact, he was in the majority in all but two of the cases the court decided.
In 13 of those 5-4 decisions, all the court’s acknowledged conservatives – Roberts, Samuel Alito, Antonin Scalia, Clarence Thomas – were in the majority, including the most prominent hot-button decisions involving abortion and the use of race in school admissions and assignments. In addition, the Ledbetter case limited back pay as a remedy for employment discrimination, and the Wisconsin Right to Life case acknowledged a First Amendment issue when it came to campaign finance regulation, supporting issue advertising that mentioned candidates, without urging a vote for or against, in the final days of a campaign.
The court’s liberals – John Paul Stevens, Stephen Breyer, David Souter, and Ruth Bader Ginsburg – were in the majority in only six of the 5-4 decisions, and four of those were Texas death penalty cases. The only important 5-4 liberal victory was in Massachusetts v. EPA, which directed the Environmental Protection Agency to regulate tailpipe emissions in light of concern over global warming.
So the court has turned to the right? The cases scheduled for decision this coming term could change that perception.
The most significant case that could alter perceptions could be the Guantanamo detainee cases the court agreed to hear in June after declining to take them up in April. In Al Odah v. United States and Boumedienne v. Bush, the District of Columbia Circuit appeals court held that the Military Commissions Act of 2006 properly denied the right of habeas corpus (to have the reasons for one’s detention heard in a civilian court) to foreign detainees at Guantanamo. These decisions were in substantial tension with the Supreme Court’s decisions in Rasul v. Bush and Hamdan v. Rumsfeld. It seems unlikely that the Supreme Court would have granted rehearing and certiorari (contraction of a Latin phrase meaning “to make sure.” An appellate court issues a writ of certiorari in response to a petition from an interested – usually the losing – party in a lower-court case. “Granting cert” means agreeing to review a case.) in these cases unless it intended to reverse the lower court – although any predictions regarding what the high court will do should be taken with a grain of salt.
As Tom Goldstein, in charge of Supreme Court litigation at the law firm Akin Gump Strauss Hauer & Feld and editor of the influential (and highly useful) SCOTUSblog.com Web site, pointed out at a forum at the Cato Institute two weeks ago, “the next-highest-profile case involves the crack-powder disparity in sentencing ( Kimbrough v. United States).” The U.S. Sentencing Commission in the 1980s during the crack cocaine epidemic/panic laid down guidelines for sentencing for crack cocaine that were 100 times as punitive (by weight) as for powder cocaine. The court is likely to overrule that indefensible guideline.
Then there’s a child pornography case. In United States v. Williams, a man shared nonpornographic images of children with an undercover federal agent and promised but didn’t deliver genuine child pornography. He was convicted of violating the PROTECT Act, which makes it a crime to distribute something that purports to be child pornography even if it isn’t. The 11th Circuit appeals court struck down the statute as overbroad and vague. The Supreme Court – especially in light of its decision in a similar set of circumstances in Ashcroft v. Free Speech Coalition– could well agree.
So we could have three high-profile cases in which the headlines will be (as Goldstein put it), “that accused terrorists deserve more rights, crack dealers deserve lighter sentences, and the First Amendment protects would-be child pornographers.”
In Kennedy v. Louisiana, the court could very well rule that Louisiana’s law authorizing the death penalty for child rape is unconstitutional. That would be in keeping with court precedents, but the crime was brutal (rape of an 8-year-old) and such a decision could be unpopular.
The Supreme Court has also agreed to hear District of Columbia v. Heller, the case in which the D.C. Circuit court overturned the District of Columbia’s handgun ban and sever restrictions on owning rifles and shotguns. The Supreme Court has not issued a significant Second Amendment decision since 1939 ( U.S. v. Miller), which was hardly a model of clarity. Since then scholarship has evolved. The District clings to the theory that the right to keep and bear arms is tied only to membership in a state militia, while an increasing number of scholars support the position elucidated by the D.C. Circuit, that the right is an individual right, and states cannot regulate it too strictly.
The D.C. gun-ban case is being heard because there is a disagreement among federal appellate courts over interpretation of the Second Amendment. That seems to be a key criterion for the high court to agree to hear a case these days. During the heyday of the liberal Warren-court the high court took a significant number of cases because it wanted to use them to move the direction of the law.
The court last week also agreed to review two cases ( Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita) involving an Indiana law that requires voters to present a government-issued photo ID before voting. The 7th Circuit upheld the law, with the majority arguing that it imposed no genuinely significant burden and a dissenter arguing that voter fraud is a minor problem that doesn’t warrant such a Draconian remedy.
Ex parte Medellin is a case with a complex history involving a Mexican sentenced for rape and murder who argued that an International Court of Justice decision mandated that he should have had access to Mexican consular officials before trial. President Bush then directed state courts to honor that decision, but the Texas courts held that he didn’t have that power.
In U.S. v. Watson, the defendant purchased an unloaded firearm with illegal drugs. He was convicted of using a gun in a drug transaction. The Supreme Court will decide whether Congress really meant that or had gunslinging in mind.
The Supreme Court evolves gradually rather than suddenly. It will take more than one term to determine whether the Roberts-Alito-Kennedy court is as conservative as advocates hope and critics bemoan. Interestingly, more because of the selection of cases than the thinking of the justices, it could develop a reputation as surprisingly liberal and become a campaign issue just about the time presidential campaigning heats up next summer.

Two Important Med. Mal. Cases Handed Down Yesterday. LawReader publishes synopsis of all cases in hours of their release.

Saturday, September 29th, 2007

 

The Ct. of Appeals issued 41 cases on Sept. 28th.  LawReader publishes keywords, a synopsis and the full  text of each decision.  The decisions were released at 2 P.M. and the analysis was published on LawReader by 9:30 P.M….nobody does it faster than LawReader.   This week there were some interesting dissents, a ruling on the constitutionality of the Black Lung law, an 11.42 granted a new trial in a case related to the infamous baby stealing case in Ft. Thomas which was discussed in a book published by Eric Deters.  It you want to stay on top of the game, you really should be a LawReader subscriber.

 

Our Keywords allows you to decide which cases are of interest to your practice, and then you can dig deeper.  We make staying informed on the latest rulings very easy.  No wonder more and more judges are subscribing to LawReader.

 

LawReader Comment:

In this case the Hospital counsel on Voir Dire asked questions that indicated anti-lawsuit bias of the jury panel.  The defense attorney requested an opportunity to conduct more examination of the panel, but his request was denied.

 

For the full synopsis and the full text of this important case go to www.lawreader.com and read this and the other 40 Ct. of Appeals decisions published on Sept. 28, 2007.

 

14 to be published: Issues discussed in this case: medical malpractice – voir dire- loss of chance- trial order re: discovery: Court correct to uphold trial order: A party must identify each person whom the party expects to call as an expert witness at trial, and state the substance of the fact and opinions to which the expert is expected to testify and a summary of the grounds of each opinion
 

Failure to comply with the letter and spirit of the aforesaid civil rule may result in the suppression of the expert’s testimony.
 

Jewish Hospital’s voir dire, counsel asked, without objection, two questions:
 

Defense Counsel: Does anybody here think lawsuits are driving up the costs of health care?
 

Defense Counsel: Does anyone here think that Kentucky is losing doctors as result of lawsuits?
 

The Dawsons contend that “approximately 50% of the jury panel raised their hands.?              (Plaintiff asked for opportunity to ask additional questions of jurors but no additional voir dire was allowed.)
 

under the loss-of-chance doctrine, the plaintiff must still prove that the defendant breached the applicable standard of care and the breach was a substantial factor in causing a diminished chance of recovery or survival from the underlying disease or injury.
 

  
LawReader Comment:  

In this case the hospital had a specialist under contract. When a patient demonstrated problems with delivery of child her doctor had the hospital staff call for the specialist. The specialist did not show up, and the child was born with brain damage, and subsequently died.  The Court held the on-call specialist was not liable. They also held that the patient was not the beneficiary of the employment contract between the hospital and the specialist.  The court did allow the claim against the hospital to proceed.

 

For the full synopsis and the full text of this important case go to www.lawreader.com and read this and the other 40 Ct. of Appeals decisions published on Sept. 28, 2007.

 

15  to be published: Issues discussed in this case: medical malpractice-duty of on call specialist-universal duty rule- patient as 3rd. party beneficiary of hospital staff attorney contract – appeal by co-defendant to dismissal of joint tortfeasor:
 

It is a universal rule that a joint tort-feasor . . . will not be heard to complain on appeal . . . that the suit was dismissed as to a co-defendant.
 

(Contract doctor who did not respond to call) … said nothing and did nothing that would establish the traditional physician-patient relationship or any other.
 

our courts never intended their recent references to “universal duty? as establishing a principle whereby a plaintiff could satisfy the first element of a cause of action for negligence – duty – by mere citation to Grayson.
 

 [T]he continued viability of the universal duty concept under Kentucky law is questionable
 

(Plaintiff’s) argument that she was a third-party beneficiary under the (hospitals contract with staff physician)…must fail.

Jurisdiction of Circuit Court is not lost once gained.

In a third important case, the Ct. of Appeals held that a Circuit Court that granted summary judgment on several claims brought by the Plaintiff, and which left claims remaining which totaled less than 4000.  the court then transferred the case to district court.  That was error…the circuit retains jurisdiction once it has jurisdiction.

 

VENUE FOR CHILD CUSTODY MOTION:
Another important case this week, discusses the formula to determine with court has jurisdiction when competing courts each have a pending child custody case.

 

 

Court allows Paramedic to Draw Blood for DUI evidence.

Friday, September 28th, 2007

Gallatin County Attorney Spike Wright is seeking to determine if he can use BA blood test evidence when the blood was drawn by a paramedic.  The case of Speers v. Com. (quoted below) answers that question in the affirmative.

 

Wright says the closest hospital is l8 miles from his county, and this prevents the prompt taking of blood for evidence in DUI cases.

 

 

Speers v. Com., 828 S.W.2d 638 (Ky., 1992)
“ We first address the issue of whether phlebotomists and paramedics are within the class of persons who may draw blood from a DUI suspect. KRS 189.520, which establishes the various presumptions of intoxication, contained the following language in subsection (6) in 1989 when these cases arose:
Only a physician, registered nurse or qualified medical technician, duly licensed in Kentucky, acting at the request of the arresting officer can withdraw any blood of any person submitting to a test under this section of KRS 186.565. 1 (Emphasis added.)
        All three movants argue that their test results were inadmissible because their blood was impermissibly drawn, since the phlebotomist and the paramedic do not fall within the class of a “physician, registered nurse or qualified medical technician.” They insist that a strict interpretation of the statute would exclude a paramedic or phlebotomist from drawing and testing blood, since they are not licensed. The Commonwealth disagrees and argues that
Page 640
a paramedic and a phlebotomist each fall under the category of a “qualified medical technician,” and that the qualifying phrase “duly licensed” is meaningless, except as applied to physicians and registered nurses.
        Whether a paramedic or phlebotomist is a “qualified medical technician” is a question of statutory interpretation. The legislature did not define in the statute what constitutes a “qualified medical technician,” nor does the Kentucky Board of Medical Licensure recognize or license medical technicians, certified or not.

The legislature’s failure to define the ambiguous phrase “medical technician” gives credence to our interpretation that its intent was to include paramedics and phlebotomists in the class of “medical technicians.”

We believe that the phrase “duly licensed” was intended solely to modify the titles “physician” and “registered nurse” since these occupations are licensed by the Board of Medical Licensure.

A “technician” is defined in Webster’s Dictionary as a person who has learned the practical technical details and special techniques of an occupation. Webster’s Third New International Dictionary (1965).

 A phlebotomist is trained to draw blood from the human body. Phlebotomists work primarily within hospitals, which are themselves highly regulated by federal and state laws.

A hospital is required to adequately train and supervise its staff, including phlebotomists, in order to properly care for patients, to adhere to governmental regulations, and to avoid liability.

A paramedic receives intensive training before being certified by the Commonwealth through its Board of Medical Licensure. Both phlebotomists and paramedics are “qualified” to work within their respective medical fields and can easily be classified as “medical technicians.” To delete these classes of individuals from the statutory scheme would lead to an absurdity, and we are not required to give the statute such an interpretation. City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517, 519 (1955).
        The trained phlebotomist who drew blood from Fortney worked solely for the Pattie A. Clay Hospital. It was stipulated by Fortney and the Commonwealth that the phlebotomist’s only task at the hospital was to withdraw blood for pathology purposes. The paramedic who drew blood from Speers and Mullins was highly trained and certified by the Commonwealth and, as a part of his occupation, routinely drew blood. We believe that these individuals were “qualified medical technicians” as set forth in KRS 189.520.?
 

KRS 189.520 Operating vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability prohibited – Presumptions concerning intoxication.
(1) No person under the influence of intoxicating beverages or any substance which
may impair one’s driving ability shall operate a vehicle that is not a motor vehicle
anywhere in this state.
(2) No peace officer or State Police officer shall fail to enforce rigidly this section.
(3) In any criminal prosecution for a violation of subsection (1) of this section, wherein
the defendant is charged with having operated a vehicle which is not a motor
vehicle while under the influence of intoxicating beverages, the alcohol
concentration, as defined in KRS 189A.005, in the defendant’s blood as determined
at the time of making an analysis of his blood, urine, or breath, shall give rise to the
following presumptions:
(a) If there was an alcohol concentration of less than 0.05, it shall be presumed
that the defendant was not under the influence of alcohol;
(b) If there was an alcohol concentration of 0.05 or greater but less than 0.08,
such fact shall not constitute a presumption that the defendant either was or
was not under the influence of alcohol, but such fact may be considered,
together with other competent evidence, in determining the guilt or innocence
of the defendant; and
(c) If there was an alcohol concentration of 0.08 or more, it shall be presumed
that the defendant was under the influence of alcohol.
(4) The provisions of subsection (3) of this section shall not be construed as limiting
the introduction of any other competent evidence bearing upon the question of
whether the defendant was under the influence of intoxicating beverages.
Effective: October 1, 2000
History: Amended 2000 Ky. Acts ch. 467, sec. 12, effective October 1, 2000. –
Amended 1991 (1st Extra. Sess.) Acts ch. 15, sec. 19, effective July 1, 1991. –
Amended 1984 Ky. Acts ch. 165, sec. 18, effective July 13, 1984. — Amended 1968
Ky. Acts ch. 184, sec. 7. — Amended 1958 Ky. Acts ch. 126, sec. 24. — Amended
1954 Ky. Acts ch. 74, sec. 1. — Amended 1946 Ky. Acts ch. 209, sec. 1. –
Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat.
sec. 2739g-34, 2739g-34a, 2739g-34b
 

Second Amendment case Re: D.C. law controlling Handguns reaches Supreme Court

Friday, September 28th, 2007

The Court has taken up District of Columbia v. Heller as 07-290. The Supreme Court has not ruled on the scope of the Second Amendment (right to possess a handgun) in 68 years – since U.S. v. Miller in 1939.
 (The petition can be downloaded here, and the appendix is here. It will be assigned a docket number shortly. A news release discussing the filing can be found here.)
Relying upon strong rhetoric and the argument that access to handguns is a direct threat to peoples’ lives in the Nation’s capital, the District of Columbia government urged the Supreme Court on Tuesday to spare the city’s gun control law from nullification under the Second Amendment. “Having a handgun, whether in the home or outside it, comes at the expense of the safety of those who may be victims,” the petition for review argued. “Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die.”
The local residents who successfully challenged the local handgun law have already said they will join in urging the Supreme Court to hear and decide the case. The case is being filed early enough that, if granted, it could be decided in the current Term. Absent extensions of time, briefing on the issue of granting or denying review could be completed by mid-October.
Tuesday’s appeal in District of Columbia v. Heller challenges a March 9 ruling by the D.C. Circuit Court, striking down the Washington, D.C., law adopted in 1976 that generally bars the registration of any handgun. Thus, the law does not allow anyone to possess a handgun for private, personal use, in any setting, including a private home. Although the Circuit Court’s 2-1 ruling suggested that the District might be able to adopt some “reasonable” form of gun control, the sweeping language of the opinion appeared to mean that the Second Amendment would stand in the way of any regulation of any weapon that qualifies as a firearm. The Amendment’s “right to keep and bear arms” protects a right to have a gun in one’s own home for personal use, the Circuit majority ruled.
The petition raises a single question: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.”
Worded that way, the question appears to offer the Justices an option of deciding the case on narrow grounds, limited to the urban setting of a single city with a history of handgun-related violence, with citizens still able to have some other kinds of guns for self-defense in case of need.
But the reasoning spread through the petition would also seem to offer the Court a chance, if it wished to take it, to speak broadly on the meaning of the Second Amendment — including defining the scope of the Amendment’s restriction on actions by Congress and what that means to states’ power to enact gun control laws or protect gun owners’ rights without federal interference. The Court has never ruled that the Second Amendment operates directly against state governments so as to limit their legislative power to regulate access to guns. The petition suggests an interpretation that would have the Second Amendment insulate the states from congressional second-guessing about gun rights that the states choose to recognize or to limit.
The Supreme Court has not ruled on the scope of the Second Amendment in 68 years — not since U.S. v. Miller in 1939.
Washington, D.C., is a city that is often described as a “crime capital” because of the high incidence of murders and other assaults. The petition, without applying any such label to the city, suggests that the need to regulate handguns is a life-or-death matter there. “Absent review by this Court,” it contends, “the District of Columbia — a densely populated urban locality where the violence caused by handguns is well-documented — will be unable to enforce a law that its elected officials have sensibly concluded saves lives.”
It notes that the city has been regulating guns since 1858, and goes on to document the problems the local City Council discerned when it adopted the current handgun ban 31 years ago. At the time, it said, handguns were used in 88 percent of armed robberies and 91 percent of armed assaults, and in one year — 1974 — “were responsible for 155 of the record 285 murders” in the city.
Handguns, it sums up, “present a singular danger,” leading the Council to adopt a freeze on the “pistol population” within the District.
In challenging the D.C. Circuit ruling nullifying that law, the petition contends that it “drastically departs from the mainstream of American jurisprudence,” creating a conflict with decisions of eight other federal Circuit Courts, as well as the highest local court in the city — the D.C. Court of Appeals. “Only this Court can resolve these conflicts about the central meaning of the Second Amendment,” it says.
It contends the Circuit Court majority made three errors: first, “its characterization of the nature of the Second Amendment right (which is linked to state militias)”; second, “its understanding of the scope of the right (which protects against federal interference with state militias and state gun laws)”; and, third, “its conclusion that the right, however it might be construed, is infringed by the District’s law (which is targeted at the special dangers created by handguns and allows the possession of rifles and shotguns).” It argues that “each error independently requires reversal.”
The petition makes no attempt to challenge the Circuit Court finding that one local resident, Dick Anthony Heller, had “standing” to bring the challenge to the city’s handgun ban. Heller contended that he lives in a “high-crime” neighborhood and that the ban bars him from “possessing a functional handgun…for self-defense within his home.” He had applied to register a handgun, but that was denied. (He sued in that capacity, not in his role as a special police officer who works at the Federal Judicial Center near Capitol Hill in Washington.)

U.S. Supreme Court to Review 47 cases for October Term 2007 Which Begins Monday

Friday, September 28th, 2007

 September 28, 2007


The US Supreme Court on Tuesday granted certiorari [orders list, PDF] in 17 cases for the October Term 2007, among them notable cases dealing with lethal injection, voter ID laws and subsequently seized evidence. In a Kentucky case,  Baze v. Rees (07-5439) [docket; cert. petition], the Court will consider whether lethal injections of death row inmates constitute cruel and unusual punishment in violation of the Eighth Amendment. At issue is the three-drug mixture [DPIC backgrounder] of an anesthetic, a muscle paralyzer and a substance to stop the heart used in Kentucky and 36 other states. Opponents of the method claim that it does not contain enough anesthetic to relieve pain; however, the Kentucky Supreme Court in upholding the injection last November ruled that the prohibition of cruel and unusual punishment does not ban all pain. Last week, a federal judge in Tennessee held that the state’s execution protocols, which use the same three-drug cocktail, violate the Eighth Amendment because they do not ensure that prisoners are properly anesthetized before they receive a lethal injection.

In two other cases, the Court will hear challenges to the constitutionality of Indiana’s controversial voter identification statute [Indiana SOS backgrounder, PDF] that requires voters to present photo identification as a prerequisite to voting. The cases, Crawford v. Marion City Election Board (07-21) [docket; cert. petition], and Indiana Democratic Party v. Rokita (07-25) [docket; cert. petition], pit those who believe the law prevents voter fraud against opponents who believe the legislation makes it difficult for minorities and impoverished voters to participate in elections. In January, the US Court of Appeals for the Seventh Circuit upheld the law, ruling that it does not put an undue burden on the right to vote and therefore does not violate the US Constitution. The US Supreme Court confronted the issue of voter ID laws last term. In October 2006, the Court ruled in a per curiam opinion [PDF text] that Arizona could enforce its voter ID law [JURIST report], which requires voters to show government-issued voter ID cards [JURIST news archive] at the polls. Last month, a federal judge held that the same Arizona voter ID law did not operate as an illegal poll tax.
In
Virginia v. Moore (06-1082) [docket; cert. petition], the Court will consider whether a court must suppress evidence seized after an arrest that violated state law. The Virginia Supreme Court ruled that David Lee Moore, who was arrested on a suspended license charge, should have been released and issued a summons, making the subsequent search, which turned up crack cocaine, illegal and all evidence inadmissible. Other state courts have held that subsequently seized evidence does not have to be suppressed.

Other cases involve:
 

Whether foreign detainees at the U.S. run Guantanamo Bay naval base have a right to challenge their imprisonment in Federal Courts.
 

Whether a murderer on Texas’ death row has a right to a new hearing since he was not told of his right to contract the Mexican consular office when he was arrested.
 

Whether a federal law making it a crime to advertise or promote pictures of children engaging in sexual acts, regardless of whether the promote had real child pornography for sale.
 

Discretion of federal judges to depart from U.S. Sentencing guidelines in determining prison time to give less time for defendants found guilty of possessing crack cocaine as compared to powdered cocaine.
 

Whether federal law against age discrimination on the job prohibits retaliation against workers who file age bias claims.
 

Whether shareholders of companies that engage in securities fraud can bring lawsuits against secondary participants such as lawyers, investment banks and others who allegedly had a role in the fraud.
 

Striking of blacks from jury pools.
 

Whether parents of disabled children can require school districts to pay for private education when the child was never a student in the school system.
 

 

As of September 25, 2007
 
06-43              CFX    STONERIDGE INVESTMENT V. SCIENTIFIC-ATLANTA, INC.
                                    Court:  USCA-8                                             Grant:  3/26/07 (CJ & SGB – no part)
                                    Argument Date:  10/9/07
 
06-179            CFX    RIEGEL V. MEDTRONIC, INC.
                                    Court:  USCA-2                                             Grant:  6/25/07
 
06-457            CFX    ROWE, ATT’Y GEN. OF ME V. NH MOTOR TRANSPORT ASSN.
                                    Court:  USCA-1                                             Grant:  6/25/07
 
06-571            CFY    WATSON V. UNITED STATES
                                    Court:  USCA-5                                             Grant:  2/26/07
                                    Argument Date:  10/9/07
 
06-637            CFX    BD. OF EDUCATION OF CITY OF NEW YORK V. TOM F.
                                    Court:  USCA-2                                             Grant:  2/26/07
                                    Argument Date:  10/1/07
 
           
06-666            CSX    DEPT. OF REVENUE OF KY V. DAVIS
                                    Court:  CA-KY                                                Grant:  5/21/07
                                    Argument Date:  11/5/07
 
06-694            CFY    UNITED STATES V. WILLIAMS
                                    Court:  USCA-11                                           Grant:  3/26/07
                                    Argument Date:  10/30/07
 
06-713)          CFX    WASHINGTON STATE GRANGE V. WA REPUBLICAN PARTY
06-730)          CFX    WASHINGTON V. WA REPUBLICAN PARTY
                                    Court:  USCA-9                                             Grant:  2/26/07
                                    Argument Date:  10/1/07
 
06-766            CFX    NY BD. OF ELECTIONS V. TORRES
                                    Court:  USCA-2                                             Grant:  2/20/07
                                    Argument Date:  10/3/07
 
06-856            CFX    LARUE V. DEWOLFF, BOBERG & ASSOC., INC.
                                    Court:  USCA-4                                             Grant:  6/18/07
 
06-937            CFX    QUANTA COMPUTER, INC. V. LG ELECTRONICS, INC.
                                    Court:  USCA-Fed.                                       Grant:  9/25/07
 
06-984            CSH   MEDELLIN V. TEXAS
                                    Court:  Crim. App., TX                                  Grant:  4/30/07
                                    Argument Date:  10/10/07
 
06-989            CFX    HALL STREET ASSOC. V. MATTEL, INC.
                                    Court:  USCA-9                                             Grant:  5/29/07
                                    Argument Date:  11/7/07
 
06-1005         CFH    UNITED STATES V. SANTOS
                                    Court:  USCA-7                                             Grant:  4/23/07
                                    Argument Date:  10/3/07
 
06-1037         CFX    KENTUCKY RETIREMENT SYS. V. EEOC
                                    Court:  USCA-6                                             Grant:  9/25/07
 
06-1082         CSY    VIRGINIA V. MOORE
                                    Court:  SC-VA                                               Grant:  9/25/07
 
06-1164         CFX    JOHN R. SAND & GRAVEL CO. V. UNITED STATES
                                    Court:  USCA-Fed.                                       Grant:  5/29/07
                                    Argument Date:  11/6/07
 
06-1181         CFX    DADA V. KEISLER, ACTING ATT’Y GEN.
                                    Court:  USCA-5                                             Grant:  9/25/07 
 
06-1195)        CFH    BOUMEDIENE V. BUSH, PRESIDENT OF UNITED STATES
06-1196)        CFH    AL ODAH V. UNITED STATES
                                    Court:  USCA-DC                                         Grant:  6/29/07
 
06-1221         CFX    SPRINT/UNITED MANAGEMENT CO. V. MENDELSOHN
                                    Court:  USCA-10                                           Grant:  6/11/07
 
06-1265         CFX    KLEIN & CO. FUTURES, INC. V. BD. OF TRADE OF THE CITY OF NY
                                    Court:  USCA-2                                             Grant:  5/21/07
                                    Argument Date:  10/29/07
 
06-1286         CFX    KNIGHT V. CIR
                                    Court:  USCA-2                                             Grant:  6/25/07
 
06-1287         CFX    CSX TRANSPORTATION, INC. V. GA BD. OF EQUALIZATION
                                    Court:  USCA-11                                           Grant:  5/29/07
                                    Argument Date:  11/5/07
 
06-1321         CFX    GOMEZ-PEREZ V. POTTER, POSTMASTER GEN.
                                    Court:  USCA-1                                             Grant:  9/25/07
 
06-1322         CFX    FEDERAL EXPRESS CORP. V. HOLOWECKI
                                    Court:  USCA-2                                             Grant:  6/4/07
                                    Argument Date:  11/6/07
 
06-1346         CFH    ALI V. ACHIM
                                    Court:  USCA-7                                             Grant:  9/25/07
 
06-1413         CSX    MEADWESTVACO CORP. V. IL DEPT. OF REVENUE
                                    Court:  App. Crt., IL-1st Dist.             Grant:  9/25/07
 
06-1431         CFX    CBOCS WEST, INC. V. HUMPHRIES
                                    Court:  USCA-7                                             Grant:  9/25/07
 
06-1457)        CFX    MORGAN STANLEY CAPITAL GROUP V. PUBLIC UTILITY DIST. 1
06-1462)        CFX    CALPINE ENERGY SVCS. V. PUBLIC UTILITY DIST. 1
                                    Court:  USCA-9                                             Grant:  9/25/07
 
06-1463         CSX    PRESTON V. FERRER
                                    Court:  CA-CA, 2nd App. Dist.                     Grant:  9/25/07
 
06-1498         CFX    WARNER-LAMBERT CO. V. KENT
                                    Court:  USCA-2                                             Grant:  9/25/07
 
06-1509         CFY    BOULWARE V. UNITED STATES
                                    Court:  USCA-9                                             Grant:  9/25/07
 
06-1646         CFY    UNITED STATES V. RODRIQUEZ
                                    Court:  USCA-9                                             Grant:  9/25/07
 
06-6330         CFY    KIMBROUGH V. UNITED STATES
                                    Court:  USCA-4                                             Grant:  6/11/07
                                    Argument Date:  10/2/07
 
06-6911         CFY    LOGAN V. UNITED STATES
                                    Court:  USCA-7                                             Grant:  2/20/07
                                    Argument Date:  10/30/07
 
06-7949         CFY    GALL V. UNITED STATES
                                    Court:  USCA-8                                             Grant:  6/11/07
                                    Argument Date:  10/2/07
 
06-8273         CSH   DANFORTH V. MINNESOTA
                                    Court:  SC-MN                                               Grant:  5/21/07
                                    Argument Date:  10/31/07
 
06-9130         CFX    ALI V. FED. BUREAU OF PRISONS
                                    Court:  USCA-11                                           Grant:  5/29/07
                                    Argument Date:  10/29/07
06-10119       CSY    SNYDER V. LOUISIANA
                        Court:  SC-LA                                                Grant:  6/25/07
 
06-11543       CFY    BEGAY V. UNITED STATES
                                    Court:  USCA-10                                           Grant:  9/25/07
 
06-11612       CFY    GONZALEZ V. UNITED STATES
                                    Court:  USCA-5                                             Grant:  9/25/07
 
07-21)                        CFX    CRAWFORD V. MARION CTY. ELECTION BD.
07-25)                        CFX    IN DEMOCRATIC PARTY V. ROKITA, IN SEC. OF STATE
                                    Court:  USCA-7                                             Grant:  9/25/07
 
07-5439         CSX    BAZE V. REES, COMM’R, KY DOC
                                    Court:  SC-KY                                                Grant:  9/25/07
 

 

 

 

 

 

 

 

 

 



PAPER CHASE US LEGAL NEWS WORLD LEGAL NEWS NEWS ARCHIVE   THIS DAY AT LAW
                                                                                                                                                                                          
                                                                                                                                                                                          
 

Kenton Commonwealth Attorney Endorses Harsher Method of Execution

Friday, September 28th, 2007

Editorial by LawReader Senior Editor Stan Billingsley    Sept. 28, 2007.

 

The Ky. Supreme Court of Kentucky has written:  “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.? – - Official Commentary to SCR 3.130(3.8) Supreme Court 1989:?
 

When being questioned this week by the Kentucky Post as to his opinion about the appeal from Kentucky taken up by the U.S. Supreme Court on the constitutionality of the execution procedure of death by injection, Rob Sanders opined “death by injection is too humane.?  We wonder how much pain he suggests should be inflicted on the condemned?

 

Mr. Sanders is entitled to express his opinion freely. Indeed, the death penalty is the law of the land.  But saying that, I don’t know many elected officials that express real joy when the death penalty is applied.  I don’t know of many  who advocate that the state should find new ways to make executions by the government even more painful than they already are.  Perhaps we should revert to the old English method of execution called Drawing and Quartering*

 

LawReader has detailed 39 instances of claimed prosecutorial misconduct in trials which were appealed since January of this year. There are over 390 such claims since 1997 which have been raised on appeal, and obviously many more which were never appealed.

 

In only one case this year has our states appellate courts granted relief to a defendant as a result of a  prosecutors improper conduct.  See: LAWREADER STUDY SHOWS: PROSECUTORIAL MISCONDUCT: EVEN WHEN IT OCCURS THERE MAY BE NO RELIEF, AND FEW CONSEQUENCES

 

 

* Details of the punishment – Drawing & Quartering

Until 1814, the full punishment for the crime was to be hanged, drawn and quartered in that the condemned prisoner would be:

  1. Dragged on a hurdle (a wooden frame) to the place of execution. (This is one possible meaning of drawn.)
  2. Hanged by the neck for a short time or until almost dead. (hanged).
  3. Disembowelled and emasculated, and the genitalia and entrails burned before the condemned’s eyes (This is another meaning of drawn. It is often used in cookbooks to denote the disembowelment of chicken or rabbit carcasses before cooking).[2]
  4. Beheaded and the body divided into four parts (quartered).

Typically, the resulting five parts (i.e. the four quarters of the body and the head) were gibbeted (put on public display) in different parts of the city, town, or, in famous cases, country, to deter would-be traitors who hadn’t seen the execution. Gibbeting was abolished in England in 1843. After 1814 the convict would be hanged until dead and the mutilation would be performed after death. Drawing and quartering was abolished in 1870.
There is confusion among modern historians about whether “drawing” referred to the dragging to the place of execution or the disembowelling, but since two different words are used in the official documents detailing the trial of William Wallace (“detrahatur” for drawing as a method of transport, and “devaletur” for disembowelment), there is no doubt that the subjects of the punishment were disembowelled.[3]
The condemned man would usually be sentenced to the short drop method of hanging, so that the neck would not break. The man was usually dragged alive to the quartering table, although in some cases men were brought to the table dead or unconscious. A splash of water was usually employed to wake the man up if unconscious, then he was laid down on the table. A large cut was made in the gut after removing the genitalia, and the intestines would be spooled out on a device that resembled a dough roller. Each piece of organ would be burnt before the sufferer’s eyes, and when he was completely disembowelled, his head would be cut off. The body would then be cut into four pieces, and the king would decide where they were to be displayed. Usually the head was sent to the Tower of London and, as in the case of William Wallace, the other four pieces were sent to different parts of the country.
Judges delivering sentence at the Old Bailey also seemed to have had some confusion over the term “drawn”, and some sentences are summarised as “Drawn, Hanged and Quartered”. Nevertheless, the sentence was often recorded quite explicitly. For example, the record of the trial of Thomas Wallcot, John Rouse, William Hone and William Blake for offences against the king, on 12 July 1683 concludes as follows:
“Then Sentence was passed, as followeth, viz. That they should return to the place from whence they came, from thence be drawn to the Common place of Execution upon Hurdles, and there to be Hanged by the Necks, then cut down alive, their Privy-Members cut off, and Bowels taken out to be burnt before their Faces, their Heads to be severed from their Bodies, and their Bodies divided into four parts, to be disposed of as the King should think fit.”[4]

Judges Conviction for Self Abuse During Trial Is Upheld

Friday, September 28th, 2007

    Judge Billingsley denies that this weird story is about him!

   My wife Gwen interrupted me this morning when I was watching the Boss and the E Street Band on the Today show, and laughingly read a news story about a Judge that had been convicted of a lewd act with an electronic device while conducting a trial.  She pointedly compared the similarities between this judge and yours truly.

My parents were from Oklahoma (like Judge Thompson) and we each served 23 years on the bench …(mere coincidence!).

   Just in case there is any confusion I want to publically state that I never, never, no matter what the level or boredom or provocation ever used any device to distract myself during a trial, other than a computer, and that was only to check out the sports scores or to look up a case.

   As a former legislator and a former judge, I just cannot fathom any other explanation why Judge Thompson, also a former legislator and judge, would crack up like he did. (Judges Schmadeke was also a former legislator and a judge, and no one is questioning him!)

   This case demonstrates an example where the antics of the trial lawyers must have pushed the judge over the edge. It just has to be something like that.  Was it a pointless and lengthy cross-examination where the attorney repeats every question for the witness that was just asked on direct examination?  That can drive a judge crazy.  Was it a situation where the plaintiff has failed to submit written instructions so that the trial judge has to stop everything and write the instructions?  That can put a judge over the edge. Was it a lawyer who has to review his notes before asking every question, and then pauses to write down every response of the witness?  It must have been something like that. 
 

 September 28, 2007

OKLAHOMA CITY (AP) — An appeals court upheld the conviction of a former judge who was convicted of exposing himself by using a sexual device while presiding over trials.

Former District Judge Donald Thompson was sentenced in August 2006 to four years in prison on four counts of indecent exposure.

On Thursday, the Oklahoma Court of Criminal Appeals ruled that ”sufficient chain of custody was established for admission of a penis pump” the judge had been accused of using behind the bench.

”It’s not surprising that the Court of Appeals follows the ruling of the trial court, especially in a high-profile case like this,” said Clark Brewster, Thompson’s attorney.

He said the pump was severely damaged and should not have been allowed to be demonstrated in court ”as if it did work.”

The appeals court said evidence showed the device was in working order.

Thompson had spent almost 23 years on the bench and had served as a state legislator before retiring from the court in 2004.

U.S. Sup. Ct. to Look At Drug Sentencing Disparity

Thursday, September 27th, 2007

Crack nets users more prison time than powder drug. Crack cocaine is the only drug that carries a mandatory sentence for first offense possession.

 

By LESLIE CASIMIR  Sept. 26, 2007,

MANDATORY JAIL

Here is how sentences compare:
Crack: A person sentenced in federal court for possessing 5 grams automatically receives a five-year sentence.
Other drugs: The maximum federal sentence for simple possession is one year in prison.
Source: www.sentencingproject.org .
Critics call it the 100-to-1 disparity. A person caught with 5 grams of crack cocaine — the equivalent of five Sweet ‘N Low packets — gets a mandatory minimum of five years in federal prison.
But it takes 500 grams of powder cocaine — more than a one-pound bag of Domino Sugar — to merit that same punishment.
As a result, a disproportionate number of blacks, usually poor, land in prisons on low-level federal drug convictions. Yet those caught with the more expensive powder cocaine, usually wealthier whites and Latinos, do not share the same judicial fate.
This year, that inequity may change. For the first time in about two decades, U.S. lawmakers have introduced a flurry of legislation to create a fair and uniform federal sentencing structure for both forms of the drug.
In addition, next month the Supreme Court is scheduled to weigh in on the matter. The case involves Derrick Kimbrough, a black veteran of the first Gulf War. He received a 15-year prison sentence from a federal judge for dealing crack and powder cocaine and possession of a firearm in Virginia. But sentencing guidelines required a much longer sentence.
An appeals court later ruled that judges can’t impose sentences shorter than the guidelines just because they don’t agree with the sentencing disparity for crack and powder cocaine offenses. But now the Supreme Court will decide if judges are bound by the sentencing requirements.
“Judges want to feel that they are administering justice fairly and equally … but it’s hard to say that equal justice is being administered,” said U.S. District Judge Reggie B. Walton, who was the deputy drug czar in the President George H.W. Bush’s administration. “It is fundamentally unfair.”
It has been 21 years since Congress passed the Anti-Drug Abuse Act that created mandatory penalties for federal drug offenses, Washington’s get-tough response to the crack epidemic of the 1980s.
Lawmakers concocted higher penalties for the cheaper and diluted form of cocaine.
For the fourth time since 1995, the U.S. Sentencing Commission urged Congress in May to do away with the sentencing disparity. Fearing they will appear politically soft on the war against drugs, Democrats and Republicans alike have done little to address the issue, advocates said.
Until now. Three senators and two House members have proposed bills to change the laws. Most civil liberties groups are endorsing presidential hopeful Sen. Joe Biden’s version of the bill. The Delaware Democrat, chairman of the judiciary subcommittee on crime and drugs, wants to level the playing field for both drug offenses.
“Busting every 5-gram dealer is not going to stop the flow of the drugs into the country,” said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance, who with the American Civil Liberties Union hosted a forum on the issue at Texas Southern University last week.
“A better law would change the face of who the defendants really are,” she said.
State laws requiring mininum sentences for drug possession vary. There are no Texas sentencing guidelines for crack cocaine and powder cocaine.
The growing momentum in Washington has been welcome news for many in the advocacy world, not to mention for those who practice criminal law.
Dane Johnson, a Houston lawyer, said he sees the uneven hand of justice all the time.
Two years ago, one African-American male client received 30 years in federal prison for possession of one pound of crack. Another client, a Latino male, received three years in prison for possession of 11 pounds of cocaine.
“It is discriminatory, even though there is not a lot of difference in the substances,” Johnson said. “The only difference is (crack cocaine) is distributed along socioeconomic lines.”

County Attorney Seeks to Use Paramedic to Draw Blood for BA tests..your opinion sought.

Thursday, September 27th, 2007

He has written his fellow County Attorneys and asked for their opinions on this topic. LawReader is likewise asking by this posting that attorneys forward to us their opinions on this subject, and we will forward them to Mr. Wright.
E-mail your comments to Firstjudge@aol.com
 We note that the following case seems to open the door as to who can take a blood sample. But is this a “surgical procedure” which requires a physician’s prescription? 

 Matthews v. Commonwealth, 2001 KY 118 (KY, 2001)
[17]  It is more reasonable to interpret the purposes of the statute (KRS 189A. 103 ) and regulations 500 KAR 8:030 Section 2(2 ) (concerning the credentials of the individual drawing the blood as giving a presumption of regularity.

It is presumed that those individuals mentioned in the statute and regulations will perform the procedures properly; however, they are not the only persons in the world who can draw blood accurately.
 Here, the proper procedures were followed. Morever, to reject this evidence in the absence of any indication whatsoever of contamination or inaccuracy would place form over substance.
 
DISSENT BY JUDGE STUMBO:

Here, the proper procedures were followed. Morever DISSENT BY JUDGE STUMBO:(34) Relevant portions of KRS 189A. 103 provide as follows. Section (3)(a) “mandates that tests of the person’s breath, blood, or urine, to be valid pursuant to this section, shall have been performed according to the administrative regulations promulgated by the secretary of the Justice Cabinet or his designee.” Section (6) provides that “only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section.”

(35) 500 KAR 8:030 Section 2(2) provides that, “the blood sample shall be collected by a person authorized to do so by KRS 189A. 103(6).”

 

Gallatin County Attorney Spike Wright asks:
  

“I was wondering if any other county attorney is struggling with similar blood testing issues as I am in my rural county.

We have no hospital to take DUI suspects to for blood testing or even drawing.  The arresting officer is required to drive the defendant to the next county 18 miles) to have the blood sample drawn at a hospital. I have a low success rate on those blood tests as it is hard to get the hospital personel to appear in court and when I have forced them to appear they conveniently can not remember what type of arm scrub they used, alcohol or non alcohol rub, etc.I am attempting to set up a protocol with the paramedics from the county ambulance service to draw our samples.Does any one see a problem with using the paramedics?  Does it create additional liability on the county?  Is anyone already using their paramedics?  Does anyone have a written protocol for this?KRS 189A.103(6) says:  “Only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section.” Matthews v. Commonwealth, 44 S.W.3d 361 (KY. 02/22/2001) discusses the issue with regard to nurses drawing the blood and whether they need a prescription or doctors order to perform a surgical procedure. 
 
My county judge is concerned about liability for the blood testing process.
 
I have attached you article for your reference.?
 
Any thoughts…
 
John G. Wright
Attorney at Law
101 East Market
P.O. Box 966
Warsaw, KY 41095
859 567 5555
 
LawReader has written on this subject
:
CAN A NURSE TAKE A BLOOD SAMPLE WITHOUT THE DOCTOR’S ORDER? 
 In a fact situation, where there was no doctor’s order directing the taking of the defendant’s blood sample.  The decision below (Matthews) seems to say that the court could allow admission of the test even when the nurse’s credentials were questioned, but on the basis that the court determined from the facts that all proper steps were nevertheless followed.  That may or may not be the correct standard for admission of a blood test.
 The Matthews case stands on the fact that the police officer was qualified as understanding all the correct procedures for taking a blood test.  If the officer can not be qualified or didn’t witness the procedure, then it is likely the test would not have been admitted into evidence under the Matthews standard.
 LawReader  had a user report to us that a hospital in Paducah refused to take blood tests at the request of a police office in the absence of a “prescription? or order of a physician.  They were concerned with their potential liability for performing a “surgical procedure? i.e. putting a needle in the defendant’s arm.
  It would be interesting to know if the test was taken for any medical purpose or only for the use of the police.  Also we have questioned the practice of the police bypassing the BA machine, even when it was in good working order, and instead taking a blood test.  That would appear to violate the intent of the statute providing BA machines for each county.
 If the judge in your case admits the test into evidence this does not end the potential challenge to the test.  There is a long line of decisions that preserve to the defense the right to argue to the jury any fact that helps them understand the law.
 If the law says surgical procedures must be performed only upon the authorization of a physician, then doing so without the authority of a physician would appear to violate KRS 189A.103…which has the words “not otherwise prohibited by law?.  It is certainly our understanding that a nurse cannot put a needle in a patient’s arm without an order or prescription by a physician.
 We suggest you explore the hospitals policy with regard to nurse’s administering blood tests without a physician’s order.
  KRS 189A.103 – (6) Only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section.
 In the following  case the court allowed a nurse to take a blood sample.  This case had a police officer testify that he was familiar with the required steps in taking a blood sample and that the nurse had followed the correct procedure. 
  Matthews v. Commonwealth, 44 S.W.3d 361 (Ky. 02/22/2001)  “Only when the Commonwealth moved to introduce the report into evidence did Appellant object to the Commonwealth’s lack of a proper foundation for the reading, namely the credentials of the nurse who drew the blood. KRS 189A.103(6) authorizes blood to be drawn by a physician, registered nurse, phlebotomist, medical technician or medical technologist.
 

“The trial court took great pains to assure itself that the blood alcohol tests were conducted properly and that the results were admissible. After concluding that the procedures followed were sufficient to ensure substantial compliance with the law and that the sample wasn’t contaminated, the trial court overruled Appellant’s objection.?  It is more reasonable to interpret the purposes of the statute and regulations concerning the credentials of the individual drawing the blood as giving a presumption of regularity. It is presumed that those individuals mentioned in the statute and regulations will perform the procedures properly; however, they are not the only persons in the world who can draw blood accurately. Here, the proper procedures were followed. Moreover, to reject this evidence in the absence of any indication whatsoever of contamination or inaccuracy would place form over substance.
        In his reply brief, Appellant admits that “it is arguably true that trial counsel waited two questions too late to object to the introduction of the blood alcohol content.” Appellant’s explanation for this lapse in timeliness, once again from his reply brief, is that “the Commonwealth duped defense counsel into believing that it could produce appropriate witnesses and lay a proper foundation for trial testimony. Defense counsel clearly was conned into believing this since the foundation that was established came during the cross examination of Officer Gilsdorf, a witness for the Commonwealth.” (Emphasis added.)
While a proper foundation may not have been laid, and the Commonwealth may have been remiss in failing to prove that a registered nurse drew the blood, the record contains sufficient admissible evidence to sustain the conviction.?
                   ***************************
 
COMMENT BY BILL ADKINS OF WILLIAMSTOWN:

Saw your article re Spike’s request.

BR 165 – Representative Melvin B. Henley (08/08/07)
     AN ACT relating to driving under the influence.
     Amend KRS 189A.103, relating to blood testing for the purpose of determining alcohol concentration or presence of a substance which may impair one’s driving ability, to require that tests are performed using accepted medical practices; add paramedics to those authorized to perform tests.

     (Prefiled by the sponsor(s).)

Governor Fletcher Takes Action to Remove Illegal Immigrants Who Commit Crimes in Kentucky, Ensures That Illegal Immigrants Are Not Receiving Tax-Supported Benefits Intended for Legal Residents

Thursday, September 27th, 2007

 

‘Kentucky will not be a safe haven for illegal immigrants who commit felonies’

 

FRANKFORT, Ky. – In a continuing effort to protect the public, Governor Ernie Fletcher has notified federal Immigration and Customs Enforcement (ICE) officials that Kentucky wants authority to verify the immigration status of foreign-born felons in Kentucky prisons.

Governor Fletcher made the request in a letter dated September 14 to ICE Assistant Secretary Julie L. Myers.  The letter proposes that Kentucky be allowed to participate in a detention and removal program under Section 287(g) of the Immigration and Nationality Act. 

Currently, there are more than 460 foreign-born offenders either incarcerated in Kentucky prisons or in the community on supervised release.  All of these persons are convicted felons and many are illegal aliens.  Although all of these convicted felons are subject to deportation, only 82 of them have an ICE detainer lodged against them.  Without a change in policy, a significant number of illegal aliens who have been convicted of felonies will be released from Kentucky state correctional facilities.

“Kentucky will not be a safe haven for illegal immigrants who commit felonies,? the Governor said. “This initiative is an attempt to prevent illegal immigrants who have been convicted and detained on felony charges from being released back into the community.?

The proposed 287(g) program is a continuation of ongoing efforts by the Fletcher Administration to address problems associated with illegal immigration. 

In July 2006, the Kentucky Cabinet for Health and Family Services (CHFS) took action to strengthen the citizenship verification process for individuals applying for public assistance.  In August 2007, CHFS strengthened its regulation governing eligibility for the Kentucky Transitional Assistance Program to ensure the income of illegal immigrants is counted when an application for benefits is made, and to ensure that illegal immigrants are not improperly receiving benefits meant for taxpaying citizens. And from July 8, 2006 through the present, 1,177 soldiers and airmen from the Kentucky Army and Air National Guard have been deployed as part of Operation Jump Start to assist the U.S. government in its efforts to strengthen border security. 

Under the new initiative, ICE will provide four weeks of training to at least five (5) employees of the Kentucky Department of Corrections.  Once trained, these corrections officers will be certified to perform immigration enforcement functions, including the identification and detention of foreign-born criminals and immigration violators.  Upon completion of their sentences, these immigration violators will be reported to ICE for processing.  ICE then will have 48 hours to remove the inmate or reimburse the state for housing the inmate during the deportation process.  The program will be implemented with existing staff within the Department of Corrections.

Both state and federal leaders applauded the Governor’s action, which is the first of two phases. 

“I’m so pleased the Governor is has taken steps to implement the 287(g) program in our state’s prison system,? said state Rep. Brad Montell (R-Shelbyville).  “At a time when national security has to be a priority, this represents a good first step in getting convicted felons of unknown origins off our streets.?

Kentucky’s congressional delegation also endorsed the Governor’s request.  In a letter to ICE, the federal lawmakers wrote, “we agree with Governor Fletcher that the status quo presents an unacceptable public safety risk for our citizens.  Accordingly, we strongly urge you to approve the proposed 287(g) partnership with the Kentucky Department of Corrections to enhance the effectiveness of ICE officers already in the Commonwealth.?

Finally, the Governor has partnered with the Chairman of the Senate Judiciary Committee, Sen. Robert Stivers (R-Manchester), to pursue a second phase initiative, which would eventually expand the 287(g) program to county and regional jails. 

Specifically, the Senator will sponsor legislation to establish a 287(g) enforcement division within the Department of Corrections staffed with 287(g) certified officers whose mission will be to provide regional, “24-7,? on-call assistance to jailers and AOC pretrial services personnel to identify and obtain an ICE detainer for any illegal alien arrested and booked into a county or regional detention facility.  The legislation will also authorize and direct the Department of Corrections to transport ICE-detained inmates from jails to facilities approved to incarcerate federal prisoners with available bed space.  When implemented, this legislation will allow any local jail to request state assistance to promptly determine if any arrestee, misdemeanant or person incarcerated in that detention facility is an illegal alien, obtain an ICE detainer for that person and transport him or her to a federally-approved facility for processing.

“We will have legislation ready to be filed during the 2008 session of the General Assembly,? said Sen. Stivers.

Editor’s note: Copies of the letters mentioned in this release are attached.

###

287letter.pdf

287 ltr 2.pdf

Ohio Court: Blood alcohol tests past 2-hour limit sometimes admissible

Thursday, September 27th, 2007

Sep 27, 2007

Ohio courts may admit the results of blood alcohol tests taken after the two-hour legal time limit in certain circumstances, the Ohio Supreme Court ruled Thursday.
In a 4-3 opinion, the court overturned lower court rulings and said delayed test results are admissible in vehicular homicide cases under specified conditions.
The ruling was made in the case of Michael Hassler, who was charged with aggravated vehicular homicide in a car crash that killed passenger Leondra Mayo in suburban Westerville in 2005. Hassler declined to submit a blood sample for an alcohol test while he was being treated at the hospital, and officers obtained a warrant that allowed them to get a sample about seven hours after the crash.
Hassler’s blood alcohol level measured at .062 percent, the court said, below the .08 percent that establishes a driving under the influence violation.
Prosecutors charged him with aggravated vehicular homicide, and argued that the test results should be admissible. Hassler’s attorney successfully argued against the admissibility of the test, first in trial court and then in appeals court.
In the majority opinion reversing those rulings, Justice Maureen O’Connor said the state’s DUI law also enables motorists to be charged with driving under the influence if there is not a reading above .08 percent. She wrote that causing the death of another under either situation is sufficient grounds for an aggravated vehicular homicide conviction.
Citing a previous Supreme Court decision, O’Connor said blood alcohol tests taken outside the two-hour time limit could be admitted to prove an under the influence charge if they were supported by expert testimony.
She was joined by Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger, and Robert R. Cupp.
Justice Paul E. Pfeifer, joined by Chief Justice Thomas Moyer, wrote the dissenting opinion. “The court’s holding today … defeats whatever purpose the General Assembly had in supplying a hard time limit, and appears to be based on little more than ‘we did something similar once before,’” Pfeifer wrote.
Justice Terrence O’Donnell entered a separate dissent.

State Accepting Applications for Vacancy on Worker’s Comp. Board.The pay equals that of a Ct. of Appeals Judge.

Thursday, September 27th, 2007

The Workers’ Compensation Nominating Commission is now accepting applications to make nomination for one (1) position for Workers’ Compensation Board Member.  The Board position term will expire January 4, 2012.  This is a full-time position and the appointee shall not hold any other public office. 
 

            Applicants for the Workers’ Compensation Board Member position must be licensed attorneys and must have the qualifications required of an Appeals Court Judge, except for residence in a district, and shall receive the same salary and be subject to the same standards of conduct. 
 

            APPLICATIONS MUST BE RECEIVED ON OR BEFORE Noon, October 19, 2007.  Interested parties are required to send one original resume and seven copies, along with a cover letter containing an e-mail address, to the attention of Brenda Majcher, Nominating Commission Clerk, Kentucky Office of Workers’ Claims, Prevention Park, 657 Chamberlin Avenue, Frankfort, KY  40601.  Questions may be directed to Mrs. Majcher at (502)564-5550, Ext. 4439. 
 

            Those serving on the Workers’ Compensation Nominating Commission are as follows:
Charles Baird, Chairman
Pikeville, KY
 

Dave Disponett                         Hon. Cathy M. Jackson
Lawrenceburg, KY                               Ft. Mitchell, KY
 

                        Brockton Edwards                               Hon. James Fogle
                        Louisville, KY                                      Louisville, KY
 

                        Charles McCoy                                    Hon. Phillip Wheeler, Jr.
                        Owenton, KY                                      Pikeville, KY
 

The Commonwealth of Kentucky does not discriminate on the basis of race, color, religion, national origin, sex, age, disability, sexual orientation, gender identity, ancestry or veteran status in the admission or access to, or participation or employment in, its programs or services.  Applicants and employees in this classification may be required to submit to a drug screening test and background check.
 

Equal Opportunity Employer M/F/D
 

Blackwaters Legal Netherworld

Wednesday, September 26th, 2007

Private security contractors are subject to military justice — or are they?

By Mark Hemingway   NRO   Sept. 26, 2007
In the reams of media coverage surrounding the Blackwater incident last week one curious detail remains virtually unreported. The general theme of the coverage remains that private military contractors are somehow “above the law,? but almost no media sources have referred to the fact that, as of last fall, contractors are subject to the same to the same Uniform Code of Military Justice that governs U.S. soldiers.
In theory, Blackwater contractors could be court martialed for wrong doing, a prospect that should satisfy all critics who insist that private military companies remain unaccountable. However, even before the change there was no lack of applicable laws to which contractors were subject. The truth is that contractors are not above the law, but rather well within the reach of several different codes and regulations and nobody’s exactly sure how one would go about exacting legal remedies against them should they be needed.
The change regarding the UCMJ was inserted into the 2007 Defense Authorization Act by Senator Lindsay Graham who noted that the change would “give military commanders a more fair and efficient means of discipline on the battlefield. The provision clarifies the Uniform Code of Military Justice to place civilian contractors accompanying the Armed Forces in the field under court-martial jurisdiction during contingency operations as well as in times of declared war.? Graham is not coincidentally also a reserve Judge Advocate General (JAG) officer.

The amendment resulted in a small but highly significant change to article two of the UCMJ. Previously article two explained military legal jurisdiction over civilians as being conditional according to the following language: “in time of war, persons serving with or accompanying an armed force in the field.? That language has now been altered to read “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.? The amendment also defines “contingency operation? as “a military operation that is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force? along with a host of other conditions where the military may be called into action. This is significant, as Congress is loathe to issue a declaration of war anymore. In the case of United States v. Averette, the Court of Military Appeals set aside the conviction of a contractor in Saigon because the conflict in Vietnam was not technically a “time of declared war.?

“It’s the single biggest legal development for the private military industry since its start. It holds the potential, and I emphasize ‘potential’ here, to finally bring some legal status and accountability to a business that has expanded well past the laws,? said Brookings Insitute Fellow Peter W. Singer, who’s both an acknowledged expert on private security forces and a sharp critic of them, back in January

Potential is right, but no one in the military is ready to seize the day and exercise their authority over contractors. One JAG officer I spoke to — who emphasized he was not speaking on behalf of the whole military or offering any explicit legal opinions about the issue — said trying contractors in military courts is “pretty radioactive.?

“I have asked some senior Army prosecutors about it and they laughed and shook their heads about what the prosecution would look like,? he said. “I mean nobody wants to be the first to touch it or try to use it, [it’s] not expressly a criticism of the extension of jurisdiction itself.?

Further confounding the problem is that while the UCMJ was amended in late 2006, the 2007 update of the Manual for Courts Martial offers no clarification on how the new language should be implemented. According to Army Lawyer, an official Army publication, “Subjecting contractor personnel to the UCMJ during all contingency operations appears to constitute a significant change rather than a clarification. No legislative history explains this change. Further, as there is no published guidance, it is unclear how this change will be implemented and precisely what the ramifications will be.? Translation: We’ll let somebody way above our pay grade decide what this means before we start bringing contractors to court — particularly since there are far more legal precedents for protecting civilians from military trials (notably Reid v. Covert), rather than vice versa.

However, the recent Blackwater hubbub illustrates that we may be reaching critical mass within the political, legal and military realms for providing explicit guidelines for how private military contractors should be regulated. In fact, it’s so problematic I suspect Blackwater itself might welcome clarification on this important point, even if the company’s leaders aren’t overjoyed at the prospect of more scrutiny or being encumbered with excess regulation.

In fact, if you Google “Blackwater? and “Uniform Code of Military Justice,? the first link is to www.blackwaterblogger.com. The site just started up September 12 and its authorship is unclear. The site’s wannabe Hunter Thompson vibe is odd but it contains some of the better, if defensive, discussions of the legal issues surrounding the use of private contractors and, in particular, the new regulations regarding the UCMJ. The effect of which is described thusly: “Learning that the ‘totEal immunity’ tagline [for military contractors] doesn’t jibe with the facts is a real buzzkill for radicals from both ends of the political spectrum, but don’t worry guys, to paraphrase that insightful lyrical genius 50 Cent, ‘I still love you like a fat kid loves cake.’? Um, okay…

Still, in defending the company, Blackwaterblogger offers a pretty shrewd assessment of the limitations of having contractors fall under the UCMJ umbrella. Even with the change to article two, much of what would be considered dangerous private security work falls outside the comparatively narrow conditions outlined by UCMJ. “As things stand, we have the unique situation of having the contract cook and the janitor at Balad under the UCMJ, but the contractor piloting weaponized Predator drones from stateside and the armed security contractors conducting DEA operations in South America not under the Code,? Blackwaterblogger observes.

Interestingly enough, the blog repeatedly references Lafayette and von Steuben’s Revolutionary War involvement as being in the same tradition as today’s private military contractors. This is an unusual, though not altogether inapt, historical interpretation — and it happens to be exactly the same example Blackwater founder Erik Prince used in defense of using security contractors in the current war when I interviewed him last year.

Blackwater spokesperson Anne Tyrrell denied any corporate involvement in the site when I spoke to her, but whether or not the Blackwater-sympathetic blog is the work of a public relations turnspit doesn’t change the fact that it might be in the company’s best interests to shine a light on the regulatory problems of private security contractors.

Blackwater has spent hundreds of millions of dollars on infrastructure and training for their contractors; the company’s facilities and capabilities are staggering. As a company, they are highly adaptable to the contracts and missions they are supplied with. At this point, the onus might be on the government to give contractors clear directives and standards that necessary to properly hold private security contractors accountable.

Anyone who is familiar with private military contractors in Iraq knows that Blackwater is far and away one of the more professional outfits doing security work in the country out of dozens if not hundreds of private security companies now operating in the country. Last year Prince told me that there are a lot of “shortcomings that are allowed that go unpunished? regarding contractors. “Especially when you have a large surge in demand for those kinds of services, there’s a lot of two-guys-and-a-laptop competitors that enter the market and suddenly they’re a security company,? Prince said.

If more stringent and/or costly accountability requirements were placed upon contractors, Blackwater would certainly be in far better position to comply than the smaller security outfits. It might prove to be in everyone’s best interests to have clear rules governing contractor conduct — Blackwater included. But it’s almost certain that it would be in the interest of the private security industry to push for clear guidelines now than wait for mounting political pressure to force the courts — military or otherwise — to resolve the issue for them.

— Mark Hemingway is an NRO staff reporter.

 

                                                                                                                                           
                                                                                                                                           

Tracing Assets – There is a Way to Do this Without Going Crazy

Tuesday, September 25th, 2007

By LawReader Senior Editor Stan Billingsley

If you are handling an estate or a divorce, or dissolution and valuation of a business, you may be required to prove how the money went from one account to another, or more likely from numerous accounts to many other accounts.

If a party had marital assets that were commingled, you may need to show the method by how this was done.  Stock and bonds etc. when sold may end up in other forms, and you may need to demonstrate this to the court.

Recently I mediated a case in which one of the parties solved this problem by using the services of an accounting firm.  The firm was DMLO, Deming, Malone Livesay & Ostroff, CPAs of Louisville. (See contact info below)

Their representative, Richard K. Peterson, CPA came to the mediation with a report that was about 25 pages long.  The report made short work of many issues, and provided strong evidence to support the plaintiff’s claim. His presence was beneficial as he was able to detail to the defendant and his counsel, the methods and results of their investigation. 

The parties involved, where concerned with tracing a very large sum of money from the estate of one spouse to that of the other.  This required a search of numerous accounts, retirement funds, CD’s, etc.  Their professional report provided the plaintiff with a powerful bit of evidence that couldn’t be easily ignored.

I can’t say how much they charge for their services, but without their work the plaintiff’s case would have been almost impossible to prove.  So in the right case, where the assets are substantial, you may find such a service as essential.

Not many attorneys are trained to trace assets in and out of different accounts and investments.  LawReader suggests you make life easy for yourself, and improve your chances of winning your case, by using the service of professional accountants who have experience in the tracing of assets.

We were impressed by Mr. Peterson and the work done by DMLO.

They are located at  9300 Shelbyville Road, Suite 1100, Louisville.  Suite 1100, Louisville, Ky. 40222.  Phone 502-325-2316.

Bench & Bar Goes Online – LawReader Provides Link

Monday, September 24th, 2007

Jane Dyche, President of the Ky. Bar Association has announced that the Bench & Bar is now available online.  Dyche said, “…starting with the September issue, your Bench & Bar is available on the internet. 
 

You should receive a hard copy in the next day or two, but for a sneak preview, please click on www.kybar.org/Default.aspx?tabid=481 , or visit the KBA homepage, www.kybar.org and click on Bench  & Bar. 
 

Once there, you’ll also find direct access to the articles and sections in the September issue, without the trouble of downloading the entire magazine.

To create a starting library and to make the Bench & Bar more of a research tool for your practice, we have available all issues from the 2007 edition in a fully searchable format, and will be adding new issues as they are published

Israeli Commandos captured nuclear materials before air raid in Syria. – Chinese and Korean diplomats believed Killed – Bush Mum.

Monday, September 24th, 2007

LawReader Note: Last week in a press conference, President Bush refused to answer reporters questions about an attack on a suspected Syria nuclear site.  This attack would not have occurred without a green light from U.S.  This sends a signal to Iran and may have affected Iranian President to declare Iran wasn’t seeking to build nuclear bomb on CBS yesterday.
By JERUSALEM POST STAFF  Sept. 24, 2007
Soldiers from an elite Israeli unit captured nuclear material originating in North Korea from a secret Syrian military installation before IAF jets bombed it, a report by Britain’s Sunday Times wrote Saturday night, quoting “informed sources in Washington and Jerusalem.”
According to the sources quoted by the report, the alleged IAF attack was sanctioned by the US on September 6, after the Americans were given proof that the material was indeed nuclear related.
The sources confirmed that the materials were tested after they were taken from Syria and were found to be of North Korean origin, which raised concerns that Syria may have been trying to come into possession of nuclear arms.
The report said that the commandos, from the legendary General Staff’s Reconnaissance Unit (Sayeret Matkal), may have been disguised in Syrian army uniforms. It also stated that Defense Minister Ehud Barak, who used to head the unit, personally oversaw the operation.
Israeli sources admitted that special forces had been accruing intelligence in Syria for several months, the report said, adding that evidence that North Koreans were at the site was presented to President George Bush during the summer.
The report said North Korean and Chinese diplomats believed that North Koreans were also killed in the subsequent “IAF air strike.”
Meanwhile, Newsweek quoted Binyamin Netanyahu adviser Uzi Arad as saying, “I do know what happened, and when it comes out it will stun everyone.”
(©) The Jerusalem Post

U of L Law School Boasts a Graduate Who is Running for President and Dated Princess Leia

Monday, September 24th, 2007

The Football program may be in a temporary decline, but the Brandeis Law School at the University of Louisville can be rightfully proud of one of its former students. Chris Dodd is not only a U.S. Senator, and candidate for the Presidency, when he was a much sought after bachelor he dated Bianca Jagger and Carrie Fisher. Remember Carrie Fisher as Princess Leia in her slave costume?

In 1972, Dodd earned a Juris Doctor degree at the University of Louisville, where he served as vice president of the law school’s student body. The following year, he was admitted to the Connecticut bar, and began practicing law in New London
Connecticut Senator Christopher Dodd is a Democratic candidate in next year’s Presidential Primary.  Many polls show him in the top five candidates running in the Democratic Primary.

Dodd was born in Willimantic, Connecticut. His parents, Grace Mary Murphy and Senator Thomas Joseph Dodd were Irish-Americans; all eight of his great-grandparents were born in Ireland.

Dodd attended Georgetown Preparatory School, a Jesuit boys school in Bethesda, Maryland. He graduated with a bachelor’s degree in English Literature from Providence College in 1966.

Dodd served as a Peace Corps volunteer in a small rural town in the Dominican Republic until 1968. Dodd then joined the U.S. Army Reserve, and served until 1975.

In July 1970, he married Susan Mooney. They divorced in October, 1982. After the divorce to Susan Mooney he set himself up as one of Washington’s most eligible bachelors. During this time he dated Bianca Jagger and Carrie Fisher. In 1999, he married his second wife, Jackie Marie Clegg, who is a member of the Church of Jesus Christ of Latter-day Saints. She held high posts at the Export-Import Bank of the United States and currently is a director of the Blockbuster video chain. . The couple have two daughters, Grace (born September, 2001) and Christina Dodd (born May, 2005).

Dodd lives in East Haddam when Congress is not in session.  He is fluent in Spanish, and is a Latin Rite Catholic.

He is the godfather of actress/singer Christy Carlson Romano, who once interned in his office. His brother, Thomas J. Dodd Jr., is an emeritus professor of the School of Foreign Service of Georgetown University, and served as the U.S. ambassador to Uruguay and Costa Rica under president Bill Clinton.


 

Kentucky has the 2nd. Lowest Alcohol Related traffic death rate in the nation in 2006. 70% of Ky. Traffic Deaths Not Alcohol Related.

Sunday, September 23rd, 2007

The National Highway Traffic Safety Administration reported that the per cent of alcohol related traffic deaths in Kentucky in 2006 was 30% of all traffic fatalities.  Only Utah, where a high per cent of its population are Mormons who do not drink alcohol, is lower. Utah had a rate of 24%. The highest per centage of alcohol related traffic deaths in 2006 was in Hawaii where the per cent of alcohol related traffic deaths was 52% 

Ohio was 39%, Indiana was 36%, Illinois was 47%, Tennessee was 40%, West Virginia was 39%. In 2006 there were 25,040 total traffic deaths in the U.S. This was down 880  or  3.4% from 2005. 

Alcohol related traffic deaths in the U.S. for 2006 totaled  17,590  down from 17,602 in 2005. In 2006, an estimated 13,470 people were killed in traffic crashes that involved at least one driver or a motorcycle operator with a blood alcohol concentration (BAC) of .08 g/dL or above – a decline of 0.8 percent from the 13,582 fatalities in 2005. The NHTSA did not reveal in their national study, how the police determine if the alcohol actually played an influence in the accident which resulted in a death. The statistics only report that one or more of the drivers involved had consumed alcohol. The 2006 Annual Assessment of Motor Vehicle Traffic Crash Fatalities and Injuries shows that 17,602 people were killed in the United States in alcohol-related motor vehicle traffic crashes – essentially unchanged from the 17,590 alcohol related
fatalities in 2005.Kentucky DUI TRAFFIC DEATH statistics:
 

2005 –   Kentucky  985  Total Traffic Deaths
 Of which  311  (32%) were alcohol  related deaths
 
In these traffic death cases,  249  Drivers had a BA level of  .08% or greater.
  2006 –  Kentucky  913 Total Traffic Deaths
  Of which  272   (30%) were alcohol related deaths
 
In these traffic death cases,   222 – Drivers had a BA level of  .08% or greater.  This was a reduction of 27 deaths (-10.8%).
 
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 From 2005 to 2006
  Kentucky had a drop of  72 Total Traffic Deaths (-7.3%) from 2005 to 2006.


 
Kentucky had a drop of 39  Alcohol Related Deaths (-12.5%) from 2005 to 2006.

  Drop of  27 in Driver with .08 or greater (-10.8%)
 

This study can be reviewed at : http://www.nhtsa.dot.gov/