Archive for March, 2008

HOW TO GET AROUND THE COM. ATTN. AND APPEAR BEFORE THE GRAND JURY TO OFFER EVIDENCE THAT MAY PREVENT AN INDICTMENT?

Tuesday, March 4th, 2008

Article by LawReader Senior Editor Stan Billingsley March 4, 2008

A Grand Jury has the function…of protecting citizens against unfounded criminal prosecutions.

Question: What do you do when you know a case is coming before the Grand Jury and the prosecutor will not allow you to testify or will not call you as a witness, and your testimony is essential to the defense of a person? This procedure may be utilized to get evidence before the Grand Jury that you feel may help to avoid the issuance of an indictment.

ANSWER:
We suggest you use the following procedure to get essential evidence before a Grand Jury that the Com. Attorney for whatever reason may be choosing to withhold.
We caution you that you will not be making a friend out of the Commonwealth Attorney, but your job is to represent you client. If your client is about to be indicted and you reasonably believe he should not be, and that he would not be indicted if the Grand Jury was to hear the evidence you or a witness can provide, then this may be the only way to get the evidence to the Grand Jury.

This procedure, we suggest, is based on sound legal principles, and actually worked for the author some years ago.

The criminal rules of procedure set out the powers of prosecutors and grand juries.
The Grand Jury is empowered to hear evidence which tends to protect a citizen against unfounded criminal prosecutions.

See: Rouse v. Commonwealth, No. 2002-SC-0298-MR (Ky. 12/18/2003) A grand jury has the “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.

The powers of the Commonwealth Attorney are somewhat limited, and far less than the general public is lead to believe regarding the conduct of Grand Jury proceedings.
The Grand Jury has been called by some as the “Fourth Branch of Government?. They certainly are not the servant of the Commonwealth Attorney, unless they choose to be his servant. In fact the Rules show that he is the servant of the Grand Jury, and the Grand Jury reports to the court and not to the Commonwealth Attorney.

So if you have evidence that you need to get to the Grand Jury, and you believe the prosecutor will withhold this testimony, then you may seek an invitation from the Foreman of the Grand Jury to appear as a witness.

The Grand Jury can make its own decisions to allow a witness to appear, or to summons a witness, or to refuse a witness. The Commonwealth Attorney cannot prevent the Grand Jury from asking the Court to issue a summons for any witness.
The Foreperson can go around the Com. Attn. and directly seek the assistance of the Court in summoning witnesses.

So the next step is to see how to get the message to the Foreperson that you are seeking an invitation to appear and testify.

The person who has to make the decision to allow you in to testify is the Foreperson of the Grand Jury.

We suggest that you first seek your invitation by writing out a request to appear directed to the Foreperson, but giving it to the Com. Attorney to show your intent. Ask him to call you as a witness.
If he refuses to allow you to appear, ask him to please assure you that he will pass your request to the Grand Jury Foreperson.

If the Com. Attorney will not communicate that request, we suggest the following options to get the attention of the Foreperson:

1. Petition the court to issue an notice informing the Foreperson of the Grand Jury of your request to attend and be heard.
2. Send a letter to the Foreperson of the Grand Jury requesting the opportunity to be heard.
3. Knocking of the Grand Jury door when they are in session and passing your written request to appear before the grand jury. If the door is guarded by a bailiff or deputy, ask them to deliver your letter to the Foreperson.
4. Go to the press and blast the prosecutor for his hiding your testimony from the grand jury and hope the Grand Jury reads the paper and invites you in.


See the following rules and cases which buttress the argument that the Commonwealth Attorney is merely there to assist the Grand Jury.
Grand Jurors have the right to ask the Court to summons witnesses (thereby bypassing the prosecutor). They have the right to make the prosecutor leave the room when a witness testifies.

See the following rules and cases which buttress the argument that the Commonwealth Attorney is merely there to assist the Grand Jury. Grand Jurors have the right to ask the Court to summons witnesses (thereby bypassing the prosecutor). They have the right to make the prosecutor leave the room when a witness testifies.They have the right to issue their indictment or report to the Court and not to the prosecutor.

The prosecutor can be directed by the Grand Jury to draft their report as they direct.

Rule 5.02. Charge to grand jury.
The court shall swear the grand jurors and charge them to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge. The court shall further instruct the grand jurors concerning (a) their right to exclude the attorney for the Commonwealth while questioning witnesses, (b) their rights and duties to juvenile cases as provided in KRS 640.010, and (c) any other matter affecting their rights and duties as grand jurors which the court believes will assist them in the conduct of their business.


Rule 5.14. Duties of prosecuting attorney.

The attorney for the Commonwealth, or an assistant, designated by the attorney for the Commonwealth, shall attend the grand jurors when requested by them, and he or she may do so on his or her own initiative, for the purpose of examining witnesses in their presence, or of giving the grand jurors legal advice regarding any matter cognizable by them. The attorney for the Commonwealth or designated assistant shall also, when requested by them, draft indictments.

At the time of the return of the indictment of a defendant the attorney for the Commonwealth shall inform the court of the defendant’s status with respect to bail.


Criminal Rule 5.06. Attendance of witnesses.
The circuit court, upon request of the foreperson of the grand jury or of the
attorney for the Commonwealth, shall issue subpoenas for witnesses.

The attendance of witnesses may be coerced as in other judicial proceedings . RCr 7.02 shall apply to grand jury subpoenas

NOTE: A person wishing to testify before the Grand Jury can be summoned by request of the Foreperson of the Grand Jury and the Judge is required to issued process to summons that witness. This demonstrates that the prosecutor cannot refuse to admit a witness if the foreperson of the jury wants to hear the witness.

Rouse v. Commonwealth, No. 2002-SC-0298-MR (Ky. 12/18/2003)
A grand jury has the “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Branzburq v. Haves, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972).
As such, the circuit courts charge grand juries to “inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed.” RCr 5.02.
Once a grand jury has inquired into an offense and filed an indictment, however, “the grand jury’s function with respect to that particular indictment is concluded.” Bishop v. Caudill, Ky., 87 S.W.3d 1, 3 (2002). Any further use of the investigatory powers of a grand jury, for the sole or dominating purpose of trial preparation under a pending indictment, is improper. Id. at 4; Howard v. Commonwealth, Ky., 395 S.W.2d 355, 359 (1965) cert. dismissed , 384 U.S. 995, 86 S.Ct. 1905, 16 L.Ed.2d 1012 (1966).
Bishop v. Floyd Circuit Court, 87 S.W.3d 1 (Ky. 10/17/2002)
A grand jury is charged “to inquire into every offense for which any person has been held to answer and for which an indictment or information has not been filed, or other offenses which come to their attention or of which any of them has knowledge.” RCr 5.02 (emphasis added) ; Bowling_v. Sinnette , Ky., 666 S .W.2d 743, 745 (1984).
It follows that, after an indictment or information has been filed, the grand jury’s function with respect to that particular indictment is concluded. On the basis of additional inculpatory evidence, the grand jury can issue a new, superseding indictment charging the defendant with additional offenses or naming additional defendants; however, there is no authority permitting a grand jury to recall or quash a rendered indictment on the basis of newly discovered exculpatory evidence, or to amend a rendered indictment to add new charges or additional parties .

Hoskins v. Maricle, No. 2002-SC-0579-MR (Ky. 12/16/2004)
The Commonwealth’s attorney is the person with “primary responsibility [for] present[ing] evidence” to the grand jury concerning alleged criminal violations. KRS 15.725(1). The Commonwealth’s attorney must, when requested, or may, on personal initiative, attend the grand jury for the purpose of questioning witnesses and giving legal advice. RCr 5.14(1).

The Commonwealth’s attorney is the person with “primary responsibility [for] present[ing] evidence” to the grand jury concerning alleged criminal violations. KRS 15.725(1). The Commonwealth’s attorney must, when requested, or may, on personal initiative, attend the grand jury for the purpose of questioning witnesses and giving legal advice. RCr 5.14(1).However, the grand jurors may choose to hear no more evidence than that which suffices to convince them that an indictment is warranted, United States v. Williams, supra, at 53, 112 S.Ct. at 1745, and may exclude the Commonwealth’s attorney while they question witnesses, themselves. RCr 5.02.

Florida law limiting attorney fees in Worker Comp. cases to be heard by Fla. Sup. Ct. and may set precedent

Monday, March 3rd, 2008

“By severely limiting the fees available to a claimant’s counsel … and imposing no limits on fees paid by an employer/carrier to defend a claim, the statute denies equal protection to injured employees.?
 March 3, 2008  Ledger.com
AUBURNDALE | Business owners, hang on to your wallets. Workers’ compensation rates may go back to the bad old days before the Florida Legislature overhauled the Florida Workers’ Compensation Act in 2003. At that time, workers’ compensation insurance premiums were the second-highest in the nation.
Since the overhaul, they have fallen to 45th, according to the 2007 Workers’ Compensation Annual Report, issued Jan. 1 by the Florida Office of Insurance Regulation.

In October, Florida Insurance Commissioner Kevin McCarty announced an 18.4 percent decrease in workers’ compensation premiums, the fifth consecutive annual decrease, creating an average cumulative drop of 58 percent since the overhaul.

A case now before the Florida Supreme Court could overturn a section of the revised law that strictly limits lawyers’ fees to a percentage of any compensation award. The limit applies to the total amount the lawyer may collect, not just the amount that the insurance company must pay if it loses the case. The claimant may not make up the difference.

“This is a huge case,” says William Large, president of the Florida Justice Reform Institute, an organization spawned by the Florida Chamber of Commerce. “A case of this magnitude gets to the Supreme Court once in about every five years.”

A major problem with the workers’ comp system before 2003 had been the ability of a claimant’s attorneys to collect fees that amounted to several times the value of the claimant’s award. A section of the law set a formula for attorneys’ fees based on a percentage of the amount of the claim, but permitted the Office of the Judges of Compensation Claims – which determines the amount of any award – to deviate from the formula if a compensation claims judge found the statutory guideline to be “manifestly unfair.”

In 2003, the legislature removed that discretionary power from the OJCC; attorneys’ fees had to be based on a percentage of the award. The law took effect Oct. 1, 2003.

On Oct. 31, 2003 Emma Murray was injured on the job and her employer’s carrier contested her claim for workers’ compensation, alleging a pre-existing condition. A JCC hearing found in Murray’s favor and awarded her $3,244.21 for lost time, medical expenses, interest and penalties.

Murray’s attorney then filed a petition to deviate from the percentage formula and asked for fees based on 84.4 hours at $200 per hour, or more than $16,000. Instead, the JCC awarded him $648.84, or 20 percent of the amount won by Murray.

The attorney argued that the percentage-based fee would equate to an hourly fee of $8.11, a rate to which no attorney would agree. Attorneys for other claimants and carriers supported the attorney’s claim. Even the claims judge said 80 hours at $200/hour would have been reasonable under the old statute but he lacked the jurisdiction “to address the claimant’s constitutional challenge” and denied the petition.

Murray, claiming a right to pay her attorney the higher fee, appealed to the First District Court of Appeals, lost and was denied a rehearing on Jan. 12, 2007. She appealed to the Florida Supreme Court and, in a move that “stunned the workers’ compensation insurance industry,” according to WorkersCompensation.com, the high court agreed to hear the case.

Most of the points raised in her appeal turn on arcane legal issues but some give pause for thought. Among those:

Murray claims that even if the legislature has the right to regulate the amount of legal fees that can be “shifted” to the insurance carrier, it does not have the right to limit how much she pays. An Amici Curiae (“Friends of the Court”) brief from the Florida Justice Reform Institute and several trade associations asks if she is demanding the right to pay $16,000 to gain $3,244.21, leaving her with a debt of more than $12,000.

An amicus brief filed by Florida Workers’ Advocates, which identifies itself as “a statewide organization composed of attorneys who represent the interests of injured employees in workers’ compensation proceedings,” points out that “Section 440.34, Fla. Stat. (2003) creates a distinction between employees and employer/carriers as litigants in workers’ compensation proceedings. By severely limiting the fees available to a claimant’s counsel … and imposing no limits on fees paid by an employer/carrier to defend a claim, the statute denies equal protection to injured employees. There is no rational basis for this discriminatory classification.”

Another claim by Murray is that the limit on lawyer’s fees restricts her access to the courts. The FJRI brief cites a flat declaration by the First District Court of Appeal in 2000 that a claimant “has no constitutional right to counsel in a workers’ compensation proceeding.” The brief also points out numerous ways that the state provides free assistance in presentation of workers’ compensation claims, including the statutory Employee Assistance and Ombudsman Office.

The Kentucky Legislature is working hard to be as unpopular as the U.S. Congress

Saturday, March 1st, 2008

The public is twenty years ahead of the Legislature. 

Editorial by LawReader Senior Editor Stan Billingsley – March 1, 2008

 

The public in poll after poll rates the U.S. Congress in popularity about at the same rate as used car salesmen.  The AP-Ipsos poll  conducted in January gave a job approval rating for Congress at only  35 percent. 

 

That gives lawmakers the same bleak approval rating as President Bush, who has been mired at about that level since last fall, including his dip to a record low for the AP-Ipsos poll of 32 percent in January.

 

“People are unhappy, there hasn’t been a lot of change in direction, for example in Iraq,” said Rep. Chris Van Hollen, chairman of House Democrats’ campaign effort.

In another measure of popular discontent, the survey found that 71 percent say the United States is on the wrong track, which is about even with the 73 percent who said so last May, the worst level since the AP-Ipsos poll began in December 2003.

 

We believe that the Ky. Legislature is working very hard to be as unpopular as the U.S. Congress, and we also think we know why.

 

We recall the work produced so far in this Legislature, and the 2006 session, and we note that very little has been done to really address and solve the major problems facing Kentucky.

 

The recent session has before it a budget that will require substantial cuts in education, that won’t even maintain the constitutionally mandated defense of criminal defendants, that won’t really solve the pension crisis (so far the house has passed a bill that will essentially only postpone dealing with the problem for another time).

 

We believe the public wants Kentucky to shed it’s backwards Hillbilly image. Past Governors and Legislatures have worked hard to improve the quality and availability of education resources. Those states with the best education systems always have the best economic results. But now, after almost a decade of progress, we are getting ready to reverse our advance and retreat to the bottom.

 

There is a deadlock in our Legislature.  The House Democrats are so divided that they can’t even pass a bill to allow the public to vote on Casino Gambling.  And if they do marshal the needed 60 votes to pass some form of this constitutional referendum, it awaits almost certain defeat in the Senate.  Republican Senate Majority leader David Williams says of the Governor’s casino plan: “He can push, he can threaten, he can coerce and he can have his people come down here and do whatever the wants to, but it’s never going to pass.?

 

This casino bill Beshear is pushing would simply allow the public to vote on this issue.

Repeated polls show that 80% of the public wants to at least have a chance to vote on this issue. The public is once again twenty years ahead of the Legislature.

 

While the pension funds are in the red and bankruptcy is less than a decade away, while the prisons are bulging with a 600% increase in inmates due to legislatures love of mandatory sentencing, enhancement of penalties, and virtual elimination of parole, has driven the Corrections budget to the same level as our spending for Higher Education, our legislature does nothing.

 

While prosecutors and public defenders are facing layoffs, and bridges aren’t being built, our legislature does nothing.  The list goes on and on and the action taken by the legislature to solve these problems is always the same….do nothing!

 

This demonstrates the link with the U.S. Congress.  The public is demanding change and dramatic action to solve serious problems, and our legislature not only won’t act themselves, they want to block the public from having a chance to solve the problem.

 

We wish that legislators would look at the massive crowds being drawn by Barack Obama. Obama is filing stadiums with only one message.  His message is change. 

 

We note that John McCain has taken the lead in the Republican primaries with a message, and that message is also change.

 

We don’t know what they specifically mean by “change? but to the public things in the U.S. are in such a mess that any change is preferable to the deadlock in Frankfort and Washington.

 

The public rightfully lays the blame for the current problems at the feet of the Ky. Legislature.  Over the last decade or so, they have happily cut state revenues by some $600 million dollars.  They have not restrained spending by an equal amount. 

 

I am no economist but I believe it works like this.  Less revenue and increased spending equals deficits.  Deficits mandate cuts in essential programs and services.  This means that Kentucky will forever be a second rate state, and that status hurts economic development.  Will this viscous circle continue forever?

 

The only thing the Legislature fears is a tax increase.  That seems to be the only thing they believe in.  Well this is why the public rates them so low in job approval polls.  The public wants leaders who will make the tough calls and solve the problems, and if that means an increase in taxes then so be it.

 

We have great praise for those legislators who are actually proposing solutions. But the legislature can only act when there is a majority in both houses, and right now it doesn’t look like anything is likely to happen in the last four weeks of this session of the legislature but more deadlock.

 

We see change coming.  It will eventually arrive in Frankfort.  And when the winds of change reach Frankfort, it may blow away those legislators who have their feet up on their desks refusing to do any of the heavy lifting required by progress.

 

LawReader announces technical improvements.

Saturday, March 1st, 2008

New search capabilities allow the fastest searchs in the industry. Find a case synopsis, statute or rule in seconds…far easier to use than our competitors.Update on New Technical Changes at LawReader: For the last year and a half, we have been moving towards a number of changes to LawReader.   We have spent close to $10,000 to implement these changes, and they look very promising.1. We now have added a Google Specific Topic search engine to search only for FORMS and another that only searches for PAST DECISIONS SYNOPSIS PAGES FOR THE KY. SUP. CT. AND COURT OF APPEALS.

We update weekly all appellate court decisions, as you know,. but access to past decisions was onerous.   Now you can call up the Decisions Search box and type in a name or topic, and it will return hits on the page on which those decisions are located.

Our data base of decisions with the LawReader synopsis, began in 2003 and that is the beginning of the time period in which unpublished cases can now be cited pursuant to a recent change in Sup. Ct. Rules.

Nobody in the industry has a  better capability to find these unpublished cases as does LawReader .To locate this feature, go to Specific Search Engines located in the left hand column of the Home Page.  We have also placed the FORMS search box at the top of the FORMS page.  This title will shortly be changed to SPECIFIC TOPIC SEARCH…as that title is more descriptive.

We have also placed a search box for DECISIONS on the Sup. Ct. Library Page and the Ct. of Appeals Library Page.

We now have seven different search engines.  Our users can quickly search areas relating to the following topics.  1. General Search of everything on LawReader.  2. Search only for KAR

3. Search LRC online version of the KRS

4. Search our Annotated version of the KRS and Rules of Procedure and Evidence

5. Search our news story library

6. Search Forms

7. Search past decisions of Sup. Ct. and Ct. of Appeals synopsis and keywords postings

This new search capability allows the user to focus his search and receive only highly relevant hits.  If you are looking for a Form, you don’t get a hit on a news story.

We have tested LawReader against our competitors and we have confirmed what our users tell us, LawReader is the fastest way to find a statute, rule, regulation or case.

Further, and this is no small achievement, our users tell us that the LawReader system is far easier to use than West or Lexis.

  1. We have had a cookie built that allows the user to click the icon posted on the top of the Home Page and download a picture of the LawReader Judge on his Desktop Screen, that links directly to LawReader.   Until this icon was installed users have had to type in www.lawreader.com to access our site.  We also reccoment that users place our address in their browser toolbar so it always stay on top of the page…this really is useful, but must be installed by the user on their computer.  We also have a cookie that allows a user to remember the users passwords so they don’t have to log in each time they visit LawReader.

3. We have moved our LawReader News to its own page, and increased the number of stories that could be viewed from 10 to 20, and will shortly be increasing that to 30.   We have now moved a link to the News to the top of the Home Page and are posting article titles there to lead the user to the News.   This allows us to provide information to the public, that draws users to our site, and increase our Google and Yahoo presence.   When you search on the major search engines you will find that LawReader is often found on the front page of hits returned on many legal topics. We are searched weekly by Google, Microsoft, Yahoo and about six other major search engines.

  1. We have added a survey option.  You will notice a listing in the left hand column of the Home Page that says POLLS .  That has not been fully implemented as of this date, but it should be working in a week or so.  You can go there and call up a test survey.  We hope to utilize this feature to build our user base, and conduct research that will be of interest to the legal profession. Give it a test.

5. We have had a problem for the last l8 months where a hacker by the name VIAGRA was trying to hack our sign up page.  This required our staff to spend several hours of tedious work a week to remove his partial completion of our sign up data.   The new security feature requires a person signing up to now duplicate some letters and numbers that are randomly displayed…a computer can’t do this only a person can transpose this data and enter it, and it has already eliminated VIAGRA from our daily list of things to worry about.

  1. When we post data we have a small word processor called an EDITOR built in to our LawReader software.  We have had problems with the original EDITOR, for example we couldn’t change colors, and when we posted copy it often changed format from what we had posted.  This was a real aggravation.  We have updated to a new EDITOR and this has given us more control over our editing features.  7. You may wonder when you look at our left hand index column on the Home Page why it is so difficult to find topics.  That is because our original design limits the order in which we can arrange topics.  This is a very complex problem, and the new Developers are near completion of software that will allow us more control on ordering the listing of index topics.
    1. We have a few other small tweaks yet to be made to improve the use of the above listed changes. We are trying to tweak the hits on our Google Search Engine to modify the form in which hit results are displayed.  This may or may not be achievable.

    Other recent changes which we have implemented without the use of outside techs, include the ordering of our appellate decisions into CIVIL and CRIMINAL categories.  For example: Some users asked for this setup to allow them to only view the type of cases they were interested in viewing.  It has added about an hour a week to the posting and editing process, but we value the input of our users.

    We are trying to redesign the look and structure of the Home Page.  It is in my opinion a little cluttered.  We don’t know were we will end up, but this is in the works, and any suggestions will be appreciated.  We are committed to getting a little bit better everyday at LawReader.

    Gwen Billingsley

    CEO, LawReader.com