Archive for April, 2009

Ninth Circuit Ct. of Appeals strikes blow on “State Secrets” privilege

Wednesday, April 29th, 2009

April 29, 2009

The Justice Department’s use of the so-called “state secrets” privilege. The once-rarely-used legal privilege was invoked repeatedly by the Bush administration to shut down civil lawsuits that alleged torture and other abuses of the law by U.S. intelligence agencies. This is a hot button issue for human rights and civil liberties groups.

On Tuesday, a three-judge panel at the 9th U.S. Court of Appeals in San Francisco voted unanimously to reject the Justice Department’s argument in a lawsuit in which the Dept. of Justice invoked the “state secrets” privilege.

In essence, the court ruled it’s not enough for the U.S. government to simply assert-”it’s classified, we can’t talk about it”—to get rid of a lawsuit alleging serious abuses by the intelligence community.

The arguments made by the government would “cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law,” the court ruled.

Instead, the court said, lawsuits like the one against Jeppesen can proceed– with decisions on what does or does not constitute a legitimate “state secret” being made by trial judges on a case-by-case basis. “This is a significant victory for those who would like to use civil litigation” to pry loose government secrets about rendition, torture, and warrantless wiretapping,” said Robert Chesney, a University of Texas law professor who specializes in national security law.

“We’re reviewing the judges’ decision,” was all Tracy Schmaler, a Justice Department spokeswoman, would say about the Ninth Circuit ruling Tuesday. But the stakes on this one are high. And, just like the decision to release the interrogation memos, it could once again force Obama to settle a dispute among his top advisors.

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Can the prosecutor amend down DUI charges? This question is not definitively resolved.

Wednesday, April 29th, 2009

Can the prosecutor amend down DUI charges?   This question is not definitively resolved.

 

In 2006 the Court of Appeals seemed to say that the Commonwealth could plea bargain DUI cases, but in 2009 the Supreme Court overruled most of that decision, and strictly applied Chapter 189A.

 

However, there are several undecided issues.

 

As the Supreme Court mentions in their 2009 decision, the “separation of powers” issue has not been directly presented to them and hence is not decided.  That issue raises the question of whether or not the legislative branch can forbid the Executive Branch (i.e. the prosecutor) from exercising his inherent powers to plea bargain.

 

The Code of Professional Conduct prohibits any prosecutor from pursing a claim in which there is no “probable cause”.  Does the statute conflict with that ethical rule?  It also seems odd that the legislature would intend the prosecutor to pursue a case in which he does not believe he has sufficient evidence for a conviction.

 

 

 

Another issue is still without direct authority.  KRS 189A.010(5) (d) and 189A.120(1) provide a list of circumstances under which an amendment is not allowed.  Does the prohibition against amendments only apply to those specific instances (i.e. refusal of B.A. or minor having a B.A. test of .08 or above)? 

 

****

 

This Supreme Court case overrules the Ct. of Appeals in Jones v. Commonwealth  (see full text below) where the Ct. of Appeals attempted to authorize DUI plea bargaining.

 

 

RENDERED : MARCH 19, 2009  TO BE PUBLISHED

 

Jones v. Commonwealth  (Supreme Court decision overruling Ct. of Appeals)

 

                2006-SC-000802-DG.pdf click to read full text

 

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

 

REVERSING AND REMANDING

 

Allen David Jones entered a conditional guilty plea to operating a motor

vehicle under the influence (DUI) (second offense), driving on a DUI-suspended

license (second offense), and of being a persistent felony offender in the first

degree (PFO I) . Jones argues that the Commonwealth violated certain statutory

proscriptions when it moved to amend down his original fourth-offense DUI

charge to a second-offense DUI charge . Because the Commonwealth’s actions

were directly contrary to KRS 189A.120(1), we agree .

 

A grand jury indicted Jones on one count of fourth-offense DUI; 1 thirdoffense

operating a vehicle with a suspended license (which had been

suspended for DUI) ;2 second-degree wanton endangerment;3 driving without

insurance ;4 and for being a PFO  Jones filed a motion to dismiss the PFO

charge because the qualifier for the fourth-offense DUI charge and the PFO

charge were the same, which he argued is an impermissible double

enhancement.

 

In an effort to avoid any impermissible double enhancements, the

Commonwealth moved to amend the fourth-offense DUI to second-offense DUI6

and the third-offense driving on a DUI-suspended license to a second-offense

driving on a DUI-suspended license.? The effect of those amendments was to

save the PFO I charge by applying one of Jones’s prior DUI convictions as the

qualifier for the PFO I charge instead of applying his current DUI charge as the

qualifier.

 

II . FACTUAL AND PROCEDURAL HISTORY

.

Kentucky Revised Statutes (KRS)189A.010(5)(d) provides that a DUI fourth offense

is a Class D felony.

 

KRS 189A.090(2)(c) provides that operating a vehicle with a DUI-suspended license

third offense is a Class D felony.

 

KRS 508.070(2) provides that wanton endangerment in the second degree is a

Class A misdemeanor.

 

See KRS 304.39-080 ; KRS 304.99-060 .

See KRS 532.080.

 

KRS 189A.010(5)(b) provides for a fine and possible incarceration in the county jail

from seven days to six months for a DUI second offense conviction.

 

KRS 189A.090(2)(b) provides that a second offense of operating a motor vehicle with

a DUI-suspended license is a Class A misdemeanor unless at the time of the offense

the person was also guilty of DUI, in which case the offense is a Class D felony.

Jones argued that KRS 189A.010(5) (d) and 189A.120(1) prohibited the

Commonwealth from recommending amending down the fourth-offense DUI

charge.

 

The trial court rejected Jones’s argument and permitted the Commonwealth to amend the charges. Jones then entered the conditional guilty plea set forth above, preserving for appellate review the propriety of the amendment of the DUI-related charges. The trial court sentenced Jones to thirty days’ incarceration on the DUI second charge and one year of imprisonment on the driving on a DUI-suspended license charge, enhanced to ten years’ imprisonment by virtue of the PFO I charge.$ But the trial court

suspended those sentences and ordered Jones to be placed on probation for five years . The Court of Appeals affirmed . We granted discretionary review and reverse the Court of Appeals.

 

III . ANALYSIS .

 

Jones does not contest the fact that he refused to submit to an alcohol

concentration test. For purposes of this case, KRS 189A.120(1) provides, in

relevant part, that “a prosecuting attorney shall not agree to the amendment of

the charge to a lesser offense . . .” in DUI cases in which the defendant has

refused an alcohol concentration test .

 

 Despite the seemingly straightforward s The wanton endangerment and driving without insurance charges were dismissed.

 

We have strong concerns over whether KRS 189A .120(1) and 189A.010(5)(d) violate

the separation of powers doctrine. However, for whatever reason, the

Commonwealth has not raised a separation of powers argument, meaning that

issue is not properly before us.

 

The Court of Appeals concluded that KRS 189A .120(1) only prohibited

the Commonwealth from agreeing to a defendant’s motion for a reduction in

charges while leaving the Commonwealth free to file its own motion to reduce

the DUI charges. We do not share this impermissibly narrow construction of

the word “agree.

 

KRS 446.080(4) requires that we construe the words of all statutes

“according to the common and approved usage of language,” unless the words

“have acquired a peculiar and appropriate meaning in the law . . . .” There is

no indication that the simple word agree has acquired a peculiar meaning in

the law.

So we must construe the word according to its ordinary meaning.

According to Webster’s Dictionary, the word agree means “to concur in”

or “to consent to as a course of action . . . . ..

 

 Clearly, the Commonwealth concurred in, or consented to, the amendment of Jones’s DUI fourth charge to a DUI second charge. After all, it was the Commonwealth that sought the

amendment. …

 

When an alcohol concentration for a person twenty-one (21) years of age or older in

a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a

person under the age of twenty-one (21), or when the defendant, regardless of age,

has refused to take an alcohol concentration or substance test, a prosecuting

attorney shall not agree to the amendment of the charge to a lesser offense and

shall oppose the amendment of the charge at trial, unless all prosecution witnesses

are, and it is expected they will continue to be, unavailable for trial.

KRS 189A.120(l).

 

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 24 ( 10th ed. 2002) .

motion to amend Jones’s DUI fourth charge, we would ultimately have to come

to the illogical conclusion that the Commonwealth did not “agree” to the very

action sought by its own motion . Or, in other words, how can it logically be

said that the Commonwealth did not “agree” to the amendment of Jones’s

charges when the Commonwealth itself sought those amendments?

 

And we see no indication in the plain language of KRS 189A.120(1) that

would cause us to conclude that the Commonwealth is only prohibited from

concurring in a defendant’s motion to amend a DUI charge while remaining

free to seek such an amendment on its own. Such a conclusion would be

illogical.

 

Why would the General Assembly enact a statute that would forbid

the Commonwealth from agreeing to an action if proposed by a defendant but

that would allow the Commonwealth to seek that very same action on its own?

 

By contrast, the proper construction we have given KRS 189A.120(1) causes

that statute to stand for the clear and logical proposition that the

Commonwealth may not join a defendant’s motion to amend DUI-related

charges, nor may the Commonwealth seek such an amendment on its own.

 

So the possibility of prosecutorial word games is eliminated . After all, tortured

semantics and word games simply cannot magically convert a DUI fourth

offense into a DUI second offense .

 

We fully recognize the wide latitude normally given to prosecutors to

determine what charges, if any, to bring against a potential defendant. 12 And

we have adopted the federal courts’ view that an “independent” motion by a

1 2 See, e.g., Flynt v. Commonwealth , 105 S.W.3d 415, 424 (Ky. 2003) .

prosecutor to dismiss or amend an indictment should be granted “unless

clearly contrary to manifest public interest.”

 

 On this point, the General Assembly has already expressed the public interest of this Commonwealth through the enactment of KRS 189A.120(1), which quite plainly prohibits the

Commonwealth from agreeing to an amendment like the one in the case at

hand.

 

This case is unusual in that the amendments the Commonwealth

successfully sought did not appear to reduce the overall possible sentence

Jones faced . But KRS 189A.120 contains no escape hatch for the

Commonwealth, and a longstanding rule in this Commonwealth prohibits a

court from judicially creating and grafting exceptions onto a statute when the

General Assembly did not see fit to do So.  

 

So we may not graft a judicially created exception onto the simple and plain language of KRS 189A.120(1) to permit the Commonwealth to agree to the reduction of DUI-related charges so long as the reduction would not reduce a defendant’s possible sentence .

Although it is possible that the General Assembly may have intended only for

the Commonwealth to refuse to accede to a reduction that would have lessened

a defendant’s ultimate sentence, we must construe the statutes as enacted;

13 Hoskins v. Maricle , 150 S .W.3d 1, 24 (Ky. 2004) .

 

14 Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703, 705 (1934)

 

 (“Where the Legislature has made no exception to the positive terms of a statute, the

presumption is that it intended to make none, and it is not the province of a court

to introduce an exception by construction. The power to create exceptions by

construction can never be exercised where the words of the statute are free from

ambiguity, and its purpose plain.”) (citations omitted) . and we may not “speculate what the General Assembly may have intended but failed to articulate . . . .”15

 

IV. CONCLUSION .

 

The opinion of the Court of Appeals is reversed. Jones’s convictions are

vacated, and this matter is remanded to the trial court for proceedings

consistent with this opinion. 16

 

Minton, C.J . ; Abramson, Cunningham, Noble, Scott, and Venters, JJ .,

sitting. Abramson, Noble, Scott, and Venters, JJ., concur. Cunningham, J.,

dissents by separate opinion . Schroder, J., not sitting.

 

CUNNINGHAM, J., DISSENTING: I respectfully dissent. This Court

ignores the unique prerogatives of the prosecutor within our legal framework.

In Fly t v. Commonwealth, this Court stated that “it is beyond dispute that the

executive branch’s prosecutorial function includes `the decision whether or not

to prosecute, and what charge to file or bring before a grand jury[.]‘

105 S.W.3d 415, 424 (Ky. 2003), quoting Commonwealth v. McKinney,

594 S.W.2d 884, 888 (Ky.App . 1979), in turn quoting Bordenkircher v. Ha ryes,

434 U.S . 357 (1978) . Further, in Hoskins v. Maricle , this Court recognized that

“an `independent’ motion by a prosecutor to dismiss or amend an indictment

must be sustained unless clearly contrary to manifest public interest.”

is Peterson v. Shake, 120 S.W.3d 707, 709 (Ky. 2003) .

 

16 Because this case may be resolved through our interpretation of KRS 189A.120(1),

it is unnecessary for us to analyze Jones’s alternate argument that the

Commonwealth’s actions also violated KRS 189A.010(5)(d), which provides that a

person who operates a motor vehicle while under the influence of alcohol for a

fourth or subsequent offense shall “be guilty of a Class D felony.”

150 S.W.3d 1, 24 (Ky. 2004) (citation omitted) .

 

In this case, the Commonwealth did not act contrary to the public’s interest in amending the

charge . In fact, it amended the charge so as to seek a more severe penalty

than would have been available otherwise . Further, the Commonwealth clearly

had the authority to seek this combination of charges in the initial indictment .

The language of KRS 189A .120(1) prevents the prosecutor from agreeing

to a request to amend the DUI charge. Further, it mandates that the

prosecutor oppose a defense motion to amend the charge to a lesser offense .

However, the language in KRS 189A.120 does not expressly prohibit a

prosecutor from exercising independent discretion and seeking a more severe

penalty under these circumstances . Further, in light of the prosecutor’s

authority set out above, such action falls squarely within the authority

reserved to the prosecutor . In turn, once the Commonwealth exercises its

authority in seeking to prosecute the facts under an offense other than a

“fourth or subsequent offense,” the language of KRS 189A.010(5)(d) has no

application. Neither do I agree with the majority’s understanding of “agree.” It

is clear from its reading that the whole purpose of KRS 189A.020(1) is to

prohibit the defendant from procuring a reduced charge through plea

negotiations. Otherwise, it would have been a simple matter for the legislature

to have written that “a prosecuting attorney shall not move to amend the charge

to a lesser offense . . . .”

 

For these reasons, I cannot join the majority opinion .

 

COUNSEL FOR APPELLANT:

V. Gene Lewter

Department of Public Advocacy

100 Fair Oaks Lane

Frankfort, Kentucky 40601

 

COUNSEL FOR APPELLEE:

Jack Conway

Attorney General of Kentuc

Courtney J. Hightower

Assistant Attorney General

Office of Attorney General

Criminal Appellate Division

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

 

FULL TEXT OF COURT OF APPEALS DECISION:

 

Allen David JONES, Appellant
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2005-CA-001089-MR.

Court of Appeals of Kentucky.

September 29, 2006.

        Appeal from Fayette Circuit Court, Honorable Pamela R. Goodwine, Judge, Indictment No. 04-CR-00840.

        V. Gene Lewter, Lexington, Kentucky, Brief for Appellant.

        Gregory D. Stumbo, Attorney General of Kentucky, Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky, Brief for Appellee.

        Before: HENRY, JOHNSON, and SCHRODER, Judges.

OPINION

        HENRY, Judge:

        On April 1, 2005, Allen David Jones entered a conditional guilty plea relating to a number of charges resulting from his arrest for driving under the influence and driving with a suspended license. He now appeals on the grounds that the trial court erroneously allowed the Commonwealth to amend the indictment against him, and that he has been subjected to double jeopardy. Upon review, we affirm.

        On July 12, 2004, Jones was indicted by the Fayette County Grand Jury on charges of (1) operating a motor vehicle while DUI (fourth or greater offense),1 (2) driving on a suspended license (which had been suspended for DUI) while again driving under the influence (third offense),2 (3) second-degree wanton endangerment,3 (4) driving with no insurance,4 and (5) being a first-degree persistent felony offender.5 On July 15, 2004, Jones appeared before the Fayette Circuit Court with counsel and entered a “not guilty” plea to all charges.

        On August 12, 2004, Jones moved to dismiss Count Five of the indictment on the ground that the Commonwealth was attempting to use for PFO enhancement purposes the same DUI convictions that were the basis for the felony charge in Count One, thus creating an impermissible double enhancement. On September 8, 2004, the Commonwealth moved to amend Count One of the indictment down to DUI second offense, Count Two of the indictment down to a second offense, and Count Five of the indictment to being a first-degree PFO. In doing so, the Commonwealth intended to apply one of Jones’ prior DUI convictions to the PFO charge instead of the DUI charge to avoid the double enhancement problem. Jones argued in response to the Commonwealth’s motion to amend that KRS 189A.010 and KRS 189A.120 prohibited the DUI charge in Count One from being amended down to a misdemeanor and, accordingly, the PFO charge in Count Five had to be dismissed.

        On October 6, 2004, the trial court entered an order sustaining the Commonwealth’s motion to amend the indictment and rejecting Jones’ motion in opposition. In doing so, the court held that Riley v. Commonwealth, 120 S.W.3d 622 (Ky. 2003) and Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003) “both address the discretion of the Commonwealth to choose how to proceed in prosecuting cases and allows for the amendment of an indictment to add status charges for purposes of enhancing penalty.” The court continued: “PFO is a status, not a criminal offense. . . . An amendment such as this does not affect the defendant’s substantial rights because he is or should be aware of his own criminal record.” The court further cited to State v. Whitten, 622 A.2d 85 (Me. 1993) and Howard v. State, 377 N.E.2d 628 (Ind. 1978) for the proposition that “[o]ther jurisdictions have held that the amendment of an indictment or information to add `habitual criminal’ count did not charge separate offense[s] but only provided a more severe penalty for the indicted offense.” The court finally noted:

        Furthermore, the legislature did not exclude the offenses set forth in KRS Chapter 189A from the persistent felony offender statute. While the Court agrees that the Commonwealth cannot use the persistent felony offender statute and a DUI Fourth or greater offense to enhance the same charge, the Court finds that the Commonwealth has complete discretion in choosing how to proceed with prosecuting criminal cases, including the strategic manipulation of offenses in order to proceed at trial and argue for the maximum punishment allowable by law.

        On April 1, 2005, Jones filed a petition to enter into a conditional guilty plea as to Counts One, Two, and Five of the indictment. In return for this plea, the Commonwealth recommended a sentence of 14 days and a $350.00 fine for Count One, a ten-year PFO-enhanced sentence for Count Two, and dismissal of Counts Three and Four. This petition was accepted by the trial court, and on April 6, 2005, the court entered a judgment finding Jones guilty of the aforementioned counts. On May 10, 2005, the court entered a final judgment dismissing Counts Three and Four and sentencing Jones to 30 days’ imprisonment for Count One (in lieu of a $350.00 fine) and a ten-year PFO-enhanced sentence for Count Two. However, after considering the pre-sentence investigation report, the court suspended imposition of this sentence and ordered Jones to be placed on probation for five years, subject to a number of conditions. This appeal followed.

        On appeal, we first address Jones’ argument that the trial court erred in allowing the Commonwealth to amend Count One of the indictment from DUI fourth offense to DUI second offense. He specifically contends that KRS 189A.010 requires that his crime be prosecuted as a felony, and that KRS 189A.120 prohibits an amendment down where a defendant refuses an alcohol or drug test.

        As a general rule, “an `independent’ motion by a prosecutor to dismiss or amend an indictment must be sustained unless clearly contrary to manifest public interest.” Hoskins v. Maricle, 150 S.W.3d 1, 24 (Ky. 2004), citing United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975). Moreover, “it is beyond dispute that the executive branch’s prosecutorial function includes `the decision whether or not to prosecute, and what charge to file or bring before a grand jury.’” Flynt v. Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003), quoting Commonwealth v. McKinney, 594 S.W.2d 884, 888 (Ky.App. 1979), in turn quoting Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). As our Supreme Court further noted in Hoskins: “Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” Hoskins, 150 S.W.3d at 20, quoting Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967). Thus, “[a] judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them.” Id., quoting United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992).

        Here, Jones in essence argues that the Commonwealth is prohibited from choosing under which section or sections of KRS 189A.010 it wishes to proceed in prosecuting a particular defendant for DUI. We disagree. There is nothing within any of the provisions of KRS 189A.010 that purport to limit a prosecutor’s discretion to bring whatever charges he or she sees fit against a defendant or to amend those charges. Moreover, Jones has cited us to no case law in support of his position, and we can find none in our own research. Indeed, our Supreme Court has repeatedly held that a case may be prosecuted pursuant to KRS 189A.010 on multiple theories. See Commonwealth v. Reynolds, 136 S.W.3d 442 (Ky. 2004); Commonwealth v. Wirth, 936 S.W.2d 78 (Ky. 1996). Accordingly, we must reject Jones’ contention that KRS 189A.010 prohibits the amendment to the indictment that was allowed in this case.

        We next consider Jones’ argument that KRS 189A.120 prohibited what occurred here. KRS 189A.120(1) provides as follows:

        When an alcohol concentration for a person twenty-one (21) years of age or older in a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a person under the age of twenty-one (21), or when the defendant, regardless of age, has refused to take an alcohol concentration or substance test, a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and it is expected they will continue to be, unavailable for trial.

        (Italics added).

  After much consideration, we do not agree that the language of KRS 189A.120 prohibited the amendment that occurred in this case. As grounds for this conclusion, we believe that the phrases “shall not agree to the amendment of the charge to a lesser offense” and “shall oppose the amendment of the charge at trial” anticipate that the impetus for amending a charge is not that of an independent prosecutorial decision. In reaching this conclusion, we particularly note the General Assembly’s use of the words “agree” and “oppose.” Merriam-Webster’s Collegiate Dictionary gives many definitions for the word “agree” including: “to concur in (as an opinion): ADMIT, CONCEDE”, “to consent to as a course of action”, “to accept or concede something (as the views or wishes of another)”, “to achieve or be in harmony (as of opinion, feeling, or purpose)”, “to get along together”, and “to come to terms”.6 Merriam-Webster’s Collegiate Dictionary 26 (11th ed. 2003). The plain and literal meaning of “agree,” then, contemplates consensus, agreement, or compromise among different parties as to a course of action or an issue in disagreement — not an independent decision by one party to proceed in a certain way as to a particular matter. Likewise, a prosecutor being put in a situation in which he would be required to “oppose the amendment of the charge at trial,” anticipates that he did not request such an amendment of his own initiative and that it instead came from another party. We are obliged to follow and give effect to the plain language of KRS 189A.120(1) as it is written. See Bailey v. Commonwealth, 70 S.W.3d 414, 416 (Ky. 2002); Commonwealth v. Harrelson, 14 S.W.3d 541, 547 (Ky. 2000). Moreover, our decision is consistent with our courts’ views on the broad authority afforded prosecutors to amend indictments on their own accord where warranted, as noted above.7 Accordingly, we find no error as to this issue.

        We next consider Jones’ contention that convicting him of both DUI and driving on a license suspended for DUI (with the aggravating factor that he was DUI at the time of the offense) constitutes double jeopardy. Although this issue was not raised below, as it involves a double jeopardy claim, we may consider it on appeal. See Phillips v. Commonwealth, 679 S.W.2d 235, 236 (Ky. 1984); Gunter v. Commonwealth, 576 S.W.2d 518, 522 (Ky. 1978); Sherley v. Commonwealth, 558 S.W.2d 615, 618 (Ky. 1977).

        Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996), our Supreme Court “reinstated the `Blockburger rule,’ Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as incorporated in KRS 505.020, as the sole basis for determining whether multiple convictions arising out of a single course of conduct constitutes double jeopardy.” Taylor v. Commonwealth, 995 S.W.2d 355, 358 (Ky. 1999), citing Burge, 947 S.W.2d at 809-11. Applying the “Blockburger rule” in this case requires us “to determine whether the act or transaction complained of constitutes a violation of two distinct statutes and, if it does, if each statute requires proof of a fact the other does not. . . . Put differently, is one offense included within another?” Burge, 947 S.W.2d at 811, citing Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1995). Here, Jones pled guilty to a second-offense DUI and to operating a motor vehicle while his license was suspended for DUI. Because the suspended license charge was Jones’ second offense within a five-year period, and because it occurred while he was DUI, the charge was enhanced to a Class D felony. KRS 189A.090(2)(b). Jones argues that a conviction for DUI and the use of that DUI as an aggravating factor in his suspended license conviction place him in double jeopardy, as the same offense is involved in two separate charges against him. We disagree.

        The fact that Jones was operating a motor vehicle while his license was suspended for DUI was sufficient, in and of itself, to support the suspended license conviction. KRS 189A.090(1).8 The question of whether he was DUI at the time of the offense goes only to the enhanced penalties available against repeat offenders. KRS 189A.090(2)(b).9 This fact is of importance because our Supreme Court has repeatedly held that “[a]ggravating circumstances are not criminal offenses subject to double jeopardy considerations.” Furnish v. Commonwealth, 95 S.W.3d 34, 51 (Ky. 2002); see also Caudill v. Commonwealth, 120 S.W.3d 635, 677-78 (Ky. 2003) (“Nor is it double jeopardy to convict a defendant of robbery or burglary and then use the same offense as an aggravating circumstance authorizing capital punishment.”); Woodall v. Commonwealth, 63 S.W.3d 104, 132 (Ky. 2001) (“Simply because the aggravating circumstance duplicates one of the underlying offenses does not mean that the defendant is being punished twice for the same offense.”); St. Clair v. Roark, 10 S.W.3d 482, 487 (Ky. 1999) (“Nor is it double jeopardy to impose a separate penalty for one offense while using the same offense as an aggravating circumstance authorizing imposition of capital punishment for another offense.”). Because DUI is not an element of the charge of operating a motor vehicle on a license suspended for DUI, and because operating a motor vehicle on a suspended license is not an element of DUI, we find that each charge requires “proof of an additional fact which the other does not” and that Jones consequently was not subjected to double jeopardy. Therefore, his argument must be rejected.

        Accordingly, the judgment of the Fayette Circuit Court is affirmed.

        ALL CONCUR.

—————

Notes:

1. Pursuant to Kentucky Revised Statutes (“KRS”) 189A.010.

2. Pursuant to KRS 189A.090.

3. Pursuant to KRS 508.070.

4. Pursuant to KRS 304.39-080.

5. Pursuant to KRS 532.080.

6. As “agree” is not defined anywhere within KRS Chapter 189A, it must be construed according to its common and approved usage. KRS 446.080(4); Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997), citing Coots v. Allstate Ins. Co., 853 S.W.2d 895 (Ky. 1993); Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962).

7. Further, the Kentucky Rules of Criminal Procedure contemplate broad discretion of prosecutors to amend charges. See RCr 3.13 and 6.16. We are also mindful that in DUI cases the degree of a charge must sometimes be amended when an underlying conviction proves invalid or cannot be proven for some reason other than the Commonwealth’s inability to produce a witness.

8. KRS 189A.090(1) provides: “No person shall operate or be in physical control of a motor vehicle while his license is revoked or suspended under KRS 189A.010(6), 189A.070, 189A.107, 189A.200, or 189A.220, or operate or be in physical control of a motor vehicle without a functioning ignition interlock device in violation of KRS 189A.345(1).”

9. KRS 189A.090(2)(b) provides: “For a second offense within a five (5) year period, be guilty of a Class A misdemeanor and have his license revoked by the court for one (1) year, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), or (d), in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of two (2) years.”

—————

 

Justice Venters to be LawDay Keynote Speaker

Wednesday, April 29th, 2009

 

FRANKFORT, Ky., April 27, 2009 – Justice Daniel J. Venters of the Supreme Court of Kentucky will be the keynote speaker for the 2009 Law Day celebration Friday, May 1, at the Kentucky Capitol in Frankfort. The annual event will begin at 10 a.m. in the chamber of the House of Representatives. The event is open to the public and media.

Law Day is a nationally designated day for Americans to celebrate the rule of law. The day underscores how law and the legal process have contributed to the freedoms Americans have. President Dwight D. Eisenhower proclaimed the first Law Day 51 years ago on May 1, 1958, to strengthen America’s heritage of liberty, justice and equality under the law. In April 1961, Congress passed a joint resolution designating each May 1 as Law Day, U.S.A.

 

The national theme for this year’s Law Day is A Legacy of Liberty. The theme recognizes the bicentennial of the birth of President Abraham Lincoln, who was a lawyer.

 

“We celebrate on Law Day this year our legacy of liberty,” Justice Venters said. “Liberty and the rule of law are deeply rooted in the legal and cultural tradition of America. Part of the mission of the legal profession is to keep that tradition alive.”

 

The Supreme Court of Kentucky will host the Law Day ceremony, which will begin with Chief Justice John D. Minton Jr. opening a special court session. Following Justice Venter’s speech, Supreme Court Clerk Susan Stokley Clary will swear in 143 new Kentucky attorneys. The event will also include an awards presentation for individuals who have contributed to law-related education programs. Distinguished guests from federal and state government and various law-related entities will attend the celebration.  

Justice Daniel J. Venters
Justice Daniel J. Venters of the Supreme Court of Kentucky represents the 3rd Supreme Court District, which is comprised of 27 counties across Southeastern Kentucky. Gov. Steve Beshear appointed Justice Venters to the court in August 2008 to fill the seat made vacant by the retirement of Chief Justice Joseph E. Lambert.

 

The 3rd Supreme Court District is comprised of Adair, Bell, Casey, Clay, Clinton, Cumberland, Estill, Garrard, Green, Jackson, Knox, Laurel, Lee, Leslie, Lincoln, Marion, McCreary, Metcalfe, Monroe, Nelson, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne, and Whitley counties.

 

Justice Venters came to the Supreme Court with 24 years of judicial experience, serving as a Circuit Court judge for Pulaski, Lincoln and Rockcastle counties from 1984 to 2003 and as a District Court judge for Pulaski and Rockcastle counties from 1979 to 1984. In 1986, he earned the Henry V. Pennington Trial Judge Award.

 

Justice Venters retired from the trial court bench in 2003 and returned to private law practice in his hometown of Somerset, focusing on civil litigation.

 

Prior to his judicial career, Justice Venters was an assistant commonwealth’s attorney for Lincoln, Pulaski and Rockcastle counties from 1975 to 1979 under then-Commonwealth’s Attorney Hal Rogers, who is now a U.S. congressman.

 

Justice Venters was admitted to practice by the Kentucky Bar Association in 1975, the U.S. District Court for the Eastern District in 1977, the U.S. Supreme Court in 2001 and the U.S. District Court for the Western District in 2004. He earned his juris doctor in 1975 from the University of Kentucky College of Law. He has a bachelor’s degree from The Ohio State University.

 

Justice Venters has served as a member of the Kentucky Board of Bar Examiners and as a member of the Kentucky Bar Association Board of Governors.

 

He and his wife, attorney Jane Adams Venters, reside in Somerset. She also is a graduate of the UK College of Law and practices family law in Somerset.

 

###

 

 

 

Court of Appeals in 2006 case recognizes powers of DUI prosecutors to amend charges and plea bargain…..

Saturday, April 25th, 2009

Court of Appeals in 2006 case recognizes powers of DUI prosecutors to amend charges and plea bargain…..

 

In 2006 the Court of Appeals in an unpublished case held that a prosecutor in a DUI case can amend the charges including a reduction in a DUI charge.

This appears to authorize the prosecutor to plea bargain DUI charges in certain situations.  We believe this upholds the independent right of the prosecutor to plea bargain…..the court in Jones v. Commonwealth, No. 2005-CA-001089-MR (Ky. App. 9/29/2006) (Ky. App., 2006)  
 recognized “the broad authority afforded prosecutors to amend indictments on their own accord where warranted.”

 

 The statutory language which appears to restrict plea bargaining is found in KRS 189A.Prosecutor’s duties with regard to amendment of charges Amendment of blood alcohol concentration — Record of charges and amendments.120

 

“ (1) When an alcohol concentration for a person twenty-one (21) years of age or older in

a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a

person under the age of twenty-one (21), or when the defendant, regardless of age,

has refused to take an alcohol concentration or substance test, a prosecuting attorney

shall not agree to the amendment of the charge to a lesser offense and shall oppose

the amendment of the charge at trial, unless all prosecution witnesses are, and it is

expected they will continue to be, unavailable for trial.

 

(2) A prosecuting attorney shall not amend a blood alcohol concentration, and he or she

shall oppose the amendment of the percentage, unless uncontroverted scientific

evidence is presented that the test results were in error. In those cases, the

prosecutor shall state his or her reasons for agreeing with the amendment, and the

scientific data upon which the amendment was made shall be made a part of the

record in this case.

 

(3) The record of charges and disposition thereof, including reasons for amending the

charges, shall be transmitted by the court to the Justice and Public Safety Cabinet

for inclusion in the centralized criminal history record information system under

KRS 17.150.

 

 But see:  Jones v. Commonwealth, No. 2005-CA-001089-MR (Ky. App. 9/29/2006) (Ky. App., 2006)  
We next consider Jones’ argument that KRS 189A.120 prohibited what occurred here. KRS 189A.120(1) provides as follows:

 

        When an alcohol concentration for a person twenty-one (21) years of age or older in a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a person under the age of twenty-one (21), or when the defendant, regardless of age, has refused to take an alcohol concentration or substance test, a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and it is expected they will continue to be, unavailable for trial.(Italics added).

 

        After much consideration, we do not agree that the language of KRS 189A.120 prohibited the amendment that occurred in this case. As grounds for this conclusion, we believe that the phrases “shall not agree to the amendment of the charge to a lesser offense” and “shall oppose the amendment of the charge at trial” anticipate that the impetus for amending a charge is not that of an independent prosecutorial decision. In reaching this conclusion, we particularly note the General Assembly’s use of the words “agree” and “oppose.” Merriam-Webster’s Collegiate Dictionary gives many definitions for the word “agree” including: “to concur in (as an opinion): ADMIT, CONCEDE”, “to consent to as a course of action”, “to accept or concede something (as the views or wishes of another)”, “to achieve or be in harmony (as of opinion, feeling, or purpose)”, “to get along together”, and “to come to terms”.67 Accordingly, we find no error as to this issue Merriam-Webster’s Collegiate Dictionary 26 (11th ed. 2003). The plain and literal meaning of “agree,” then, contemplates consensus, agreement, or compromise among different parties as to a course of action or an issue in disagreement — not an independent decision by one party to proceed in a certain way as to a particular matter.

 

Likewise, a prosecutor being put in a situation in which he would be required to “oppose the amendment of the charge at trial,” anticipates that he did not request such an amendment of his own initiative and that it instead came from another party. We are obliged to follow and give effect to the plain language of KRS 189A.120(1) as it is written. See Bailey v. Commonwealth, 70 S.W.3d 414, 416 (Ky. 2002); Commonwealth v. Harrelson, 14 S.W.3d 541, 547 (Ky. 2000). Moreover, our decision is consistent with our courts’ views on the broad authority afforded prosecutors to amend indictments on their own accord where warranted, as noted above.

 

FURTHER QUOTES FROM CASE:

As a general rule, “an ‘independent’ motion by a

prosecutor to dismiss or amend an indictment must be sustained

unless clearly contrary to manifest public interest.” Hoskins

v. Maricle, 150 S.W.3d 1, 24 (Ky. 2004), citing United States v.

Cowan, 524 F.2d 504, 513 (5th Cir. 1975). Moreover, “it is

beyond dispute that the executive branch’s prosecutorial

function includes ‘the decision whether or not to prosecute, and

what charge to file or bring before a grand jury.’” Flynt v.

Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003), quoting

Commonwealth v. McKinney, 594 S.W.2d 884, 888 (Ky.App. 1979), in

turn quoting Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663,

54 L.Ed.2d 604 (1978). As our Supreme Court further noted in

Hoskins: “Few subjects are less adapted to judicial review than

the exercise by Hoskins, 150 S.W.3d at 20, quoting Newman v. United

-5- the Executive of his discretion in deciding when

and whether to institute criminal proceedings, or what precise

charge shall be made, or whether to dismiss a proceeding once

brought.”

States, 382 F.2d 479, 480 (D.C. Cir. 1967). Thus, “[a] judge in

our system does not have the authority to tell prosecutors which

crimes to prosecute or when to prosecute them.” Id., quoting

United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992).

Here, Jones in essence argues that the Commonwealth is

prohibited from choosing under which section or sections of KRS

189A.010 it wishes to proceed in prosecuting a particular

defendant for DUI. We disagree. There is nothing within any of

the provisions of KRS 189A.010 that purport to limit a

prosecutor’s discretion to bring whatever charges he or she sees

fit against a defendant or to amend those charges.

 

 Moreover,

Jones has cited us to no case law in support of his position,

and we can find none in our own research. Indeed, our Supreme

Court has repeatedly held that a case may be prosecuted pursuant

to KRS 189A.010 on multiple theories. See Commonwealth v.

Reynolds, 136 S.W.3d 442 (Ky. 2004); Commonwealth v. Wirth, 936

S.W.2d 78 (Ky. 1996). Accordingly, we must reject Jones’

contention that KRS 189A.010 prohibits the amendment to the

indictment that was allowed in this case.

We next consider Jones’ argument that KRS 189A.120

prohibited what occurred here. KRS 189A.120(1) provides as

follows:

When an alcohol concentration for a person

twenty-one (21) years of age or older in a

prosecution for violation of KRS 189A.010 is

-6-

0.08 or above, is 0.02 or above for a person

under the age of twenty-one (21), or when

the defendant, regardless of age, has

refused to take an alcohol concentration or

substance test, a prosecuting attorney shall

not agree to the amendment of the charge to

a lesser offense and shall oppose the

amendment of the charge at trial, unless all

prosecution witnesses are, and it is

expected they will continue to be,

unavailable for trial.

(Italics added).

After much consideration, we do not agree that the

language of KRS 189A.120 prohibited the amendment that occurred

in this case. As grounds for this conclusion, we believe that

the phrases “shall not agree to the amendment of the charge to a

lesser offense” and “shall oppose the amendment of the charge at

trial” anticipate that the impetus for amending a charge is not

that of an independent prosecutorial decision. In reaching this

conclusion, we particularly note the General Assembly’s use of

the words “agree” and “oppose.” Merriam-Webster’s Collegiate

Dictionary gives many definitions for the word “agree”

including: “to concur in (as an opinion): ADMIT, CONCEDE”, “to

consent to as a course of action”, “to accept or concede

something (as the views or wishes of another)”, “to achieve or

be in harmony (as of opinion, feeling, or purpose)”, “to get

along together”, and “to come to terms”.6 Merriam-Webster’s

6 As “agree” is not defined anywhere within KRS Chapter 189A, it must be

construed according to its common and approved usage. KRS 446.080(4);

Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997), citing

Coots v. Allstate Ins. Co., 853 S.W.2d 895 (Ky. 1993); Gateway Construction

-7-

Collegiate Dictionary 26 (11th ed. 2003). The plain and literal

meaning of “agree,” then, contemplates consensus, agreement, or

compromise among different parties as to a course of action or

an issue in disagreement – not an independent decision by one

party to proceed in a certain way as to a particular matter.

Likewise, a prosecutor being put in a situation in which he

would be required to “oppose the amendment of the charge at

trial,” anticipates that he did not request such an amendment of

his own initiative and that it instead came from another party.

 

We are obliged to follow and give effect to the plain language

of KRS 189A.120(1) as it is written. See Bailey v.

Commonwealth, 70 S.W.3d 414, 416 (Ky. 2002); Commonwealth v.

Harrelson, 14 S.W.3d 541, 547 (Ky. 2000). Moreover, our

decision is consistent with our courts’ views on the broad

authority afforded prosecutors to amend indictments on their own

accord where warranted, as noted above.7 Accordingly, we find no

error as to this issue.

 

Accordingly, the judgment of the Fayette Circuit Court

is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

V. Gene Lewter

Lexington, Kentucky

BRIEF FOR APPELLEE:

Gregory D. Stumbo

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky

-

 

 

 

Attorney alleged to have assisted Karen Sypher in Pitino Extortion Attempt

Saturday, April 25th, 2009

In a Courier-Journal article published Saturday April 25, 2009, it was reported that and attorney, while representing Karen Sypher in her attempt to obtain money from University of Louisville Basketball coach Rick Pitino, had signed a letter to Coach Pitino which presented Sypher’s demand for some $10 million dollars in cash and property (two new cars).

 

“The attorney is identified as Sypher’s lawyer in her pending divorce, listed in state court papers as Dana Kolter.  (Kolter)…declined to comment as did his lawyer, Rob Eggert, who wouldn’t say if he expects his client to be charged.”   The criminal complaint filed against Karen Sypher said a lawyer for ‘Sypher later demanded $10 million for her in exchange for her silence on allegations of “a criminal nature” that are not revealed by the government in court papers.”  Courier-Journal.

 

Extortion is a felony offense.  Attempting to commit an act of extortion, which is not completed, is treated as a Class A misdemeanor if the property sought was in excess of $300. 

 

An attorney who participates in a crime, can be charged as an accessory to the crime, and could be charged with a violation of the Code of Professional Conduct.

 

The following state charges would appear to provide serious consequences for anyone who participated or assisted in an extortion attempt.

 

At this time only federal charges have been filed against Karen Sypher.

 

KRS 514.080 Theft by extortion.

(1) A person is guilty of theft by extortion when he intentionally obtains property of another by threatening to:

(a) Inflict bodily injury on anyone or commit any other criminal offense; or

(b) Accuse anyone of a criminal offense; or

(c) Expose any secret tending to subject any person to hatred, contempt, or ridicule, or to impair his credit or business repute; or

(d) Use wrongfully his position as a public officer or servant or employee by performing some act within or related to his official duties, either expressed or implied, or by refusing or omitting to perform an official duty, either expressed or implied, in a manner affecting some person adversely; or

(e) Bring about or continue a strike, boycott, or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; or

(f) Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense.

(2) It is a defense to prosecution based on subsection (1)(b), (c), or (d) that the property obtained by threat of accusation, exposure, lawsuit, or other invocation of official action was claimed as restitution or indemnification for harm done in the circumstances to which accusation, exposure, lawsuit, or other official action relates, or as compensation for property or lawful services.

(3) Theft by extortion is a Class A misdemeanor unless the value of the property obtained is three hundred dollars ($300) or more, in which case it is a Class D felony.

Effective: July 14, 1992

 

519.030 Compounding a crime.

(1) A person is guilty of compounding a crime when:

(a) He solicits, accepts or agrees to accept any benefit upon an agreement or understanding that he will refrain from initiating a prosecution for a crime; or

(b) He confers, offers, or agrees to confer any benefit upon another person upon agreement or understanding that such other person will refrain from initiating a prosecution for a crime.

(2) In any prosecution under this section, it is a defense that the benefit did not exceed an amount which the defendant reasonably believed to be due as restitution or indemnification for harm caused by the offense.

(3) Compounding a crime is a Class A misdemeanor.

 

KRS 506.080 Criminal facilitation.

(1) A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime.

(2) Criminal facilitation is a:

(a) Class D felony when the crime facilitated is a Class A or Class B felony or capital offense;

(b) Class A misdemeanor when the crime facilitated is a Class C or Class D felony;

(c) Class B misdemeanor when the crime facilitated is a misdemeanor.

 

 

KRS 506.010 Criminal attempt.

(1) A person is guilty of criminal attempt to commit a crime when, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) Intentionally does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.

(2) Conduct shall not be held to constitute a substantial step under subsection (1)(b) unless it is an act or omission which leaves no reasonable doubt as to the defendant’s intention to commit the crime which he is charged with attempting.

(3) A person is guilty of criminal attempt to commit a crime when he engages in conduct intended to aid another person to commit that crime, although the crime is not committed or attempted by the other person, provided that his conduct would establish complicity under KRS 502.020 if the crime were committed by the other person.

(4) A criminal attempt is a:

(a) Class C felony when the crime attempted is a violation of KRS 521.020 or 521.050;

(b) Class B felony when the crime attempted is a Class A felony or capital offense;

(c) Class C felony when the crime attempted is a Class B felony;

(d) Class A misdemeanor when the crime attempted is a Class C or D felony;

(e) Class B misdemeanor when the crime attempted is a misdemeanor.

 

The recent U.S. Supreme Court Ruling Limiting Auto Searches when suspect is in custody, could spark a new look at the 4th. Amendment exceptions that have been carved out since Terry v. Ohio.

Saturday, April 25th, 2009

Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.  Terry held that for their  own protection, police may perform a quick surface search of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed.

The justification for the warrantless searches authorized by Terry was that the officer had the right to search for weapons to protect himself while talking with the defendant.  This exception has been stretched beyond recognition in subsequent rulings which allow the plain touch exception and plain smell exceptions which have been used to search and seize contraband on the suspect. 

For the last 28 years, under the Belton decision which was based on Terry, police officers have been able to search the vehicle of any suspect they take into custody.  Now the rules have changed after a ruling by the U.S. Supreme Court this week and that has local police departments on notice.

The Supreme Court in this weeks U.S. v. Gant case stems from an incident that happened in Arizona.  Police arrested a man for driving with a suspended license.  When they later searched his car, they found cocaine.  The man was eventually convicted on drug charges.  The case went all the way to the Supreme Court because the search had nothing to do with officer safety or the reason the man was arrested.  The high court says those are the two guidelines police need to search a vehicle after an arrest.

The ruling held that once the police have the person in custody, in handcuffs, and in the squad car there really isn’t any threat to the officer if there are weapons in the vehicle.

That means once a person is arrested, officers are unable to search someone’s car unless there is probable cause.

Under the old rule, an arrest was all it took to give police the right to search a car for anything unrelated to that arrest.  For example, someone is pulled over for drunk driving, police then search the car and find drugs or a weapon.  The Supreme Court ruling now prohibits police from making that kind of search unless there’s clear evidence of drugs or weapons in the car.  Essentially, the new law restricts an officer’s hunch.

Grand Jury indicts Covington officials in Election Circular Probe

Thursday, April 23rd, 2009

April 23, 2009

Attorney General Jack Conway and his Office of Special Prosecutions today announced the indictment of three persons stemming from unlawful campaign practices in the 2008 election for Covington City Commission.

Defendants Jerry Bamberger, 66, Steven Megerle, 29, and Craig Johnson, 44, were each indicted today by a Kenton County Grand Jury for one count conspiracy to violate campaign finance restrictions, and one count conspiracy to fail to identify campaign contributors and advertisers.

The indictment stems from an effort in late 2008 to support the candidacy of defendant Johnson and defeat the candidacy of opponent Shawn Masters for Covington City Commissioner. The indictment alleges that the three named defendants conspired to create an unlawfully anonymous campaign circular or advertisement advocating the defeat of Masters, while further conspiring to conceal, from the Kentucky Registry of Election Finance, their identity as financial contributors toward the effort.

Prosecutors from the Attorney General’s Office of Special Prosecutions are handling the matter at the request of Kenton County Commonwealth’s Attorney Rob Sanders and pursuant to the Attorney General’s independent authority to enforce campaign finance regulations. This matter was investigated by the Office of the Attorney General’s Department of Criminal Investigations.

Arraignment and further proceedings in this matter are set for April 29, 2009 at 9:30 a.m. in Kenton County District Court.

An indictment is an accusation only. All suspects are presumed innocent until proven guilty.

LawReader adds TimeKeeper to allow you to time up to five projects at the same time…

Tuesday, April 21st, 2009

LawReader has added a TimeKeeper to allow you to keep a running total of the hours you spend on a project. You can name a project then start the TimeKeeper clock to record the time.

 

This feature allows you Multitaskers to keep the time on five different projects at the same time.

 

Ex:

 

 TimeKeeper No. 1—Record time spent on Smith v. Jones case research.

 TimeKeeper No. 2-   See how long your law clerk is taking to get you a double latte at   

                                       Starbucks.

 TimeKeeper No. 3 – See how long you are on the phone with a client.

      

 

At this time it works only in Internet Explorer browser (the Blue E).  

 

To activate the TimeKeeper go to LawReader Time Keeper  at the top of the Home Page just under the Judge logo.

 

Then name your project, and start the clock and then minimize to hide the screen while you are working.  When you close the window by minimizing it, a link will automatically open in your bottom toolbar.  Click that link to reopen the TimeKeeper.

 

To save your data, you can e-mail it to yourself or print it out.

 

FLASH: U.S. Supreme Court limits warrantless vehicle searches when defendant in custody

Tuesday, April 21st, 2009

April 21, 2009  WASHINGTON— The Supreme Court ruled Tuesday that police need a warrant to search the vehicle of someone they have arrested if the person is locked up in a patrol cruiser and poses no safety threat to officers.

The court’s 5-4 decision puts new limits on the ability of police to search a vehicle immediately after the arrest of a suspect.

Justice John Paul Stevens said in the majority opinion that warrantless searches still may be conducted if a car’s passenger compartment is within reach of a suspect who has been removed from the vehicle or there is reason to believe evidence of a crime will be found.

“When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant,” Stevens said.

Justice Samuel Alito, in dissent, complained that the decision upsets police practice that has developed since the court first authorized warrantless searches immediately following an arrest.

“There are cases in which it is unclear whether an arrestee could retrieve a weapon or evidence,” Alito said.

Even more confusing, he said, is asking police to determine whether the vehicle contains evidence of a crime. “What this rule permits in a variety of situations is entirely unclear,” Alito said.

The decision backs an Arizona high court ruling in favor of Rodney Joseph Gant, who was handcuffed, seated in the back of a patrol car and under police supervision when Tucson, Ariz., police officers searched his car. They found cocaine and drug paraphernalia.

The trial court said the evidence could be used against Gant, but Arizona appeals courts overturned the convictions because the officers already had secured the scene and thus faced no threat to their safety or concern about evidence being preserved.

The state and the Bush administration complained that ruling would impose a “dangerous and unworkable test” that would complicate the daily lives of law enforcement officers.

The justices divided in an unusual fashion. Justices Ruth Bader Ginsburg, Antonin Scalia, David Souter and Clarence Thomas joined the majority opinion. Chief Justice John Roberts and Justices Stephen Breyer and Anthony Kennedy were in dissent along with Alito.

 

This decision limits the application of  New York v. Belton (1981), which allows the search of a vehicle’s interior incident to a custodial arrest of an occupant of the vehicle, as practiced on state highways, violates the Fourth Amendment and should be overruled.

Without explicitly overruling Belton, the Court was persuaded that a broad reading of the case does violate the Fourth Amendment:

 The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely“within ‘the area into which an arrestee might reach,’” and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis does not require us to approve routine constitutional violations.

 

 

SLEEPING JURORS ARE TIRED. STUDY SHOWS FATIQUE IMPAIRS MORAL JUDGMENT

Tuesday, April 21st, 2009

It’s been covered here before, but it’s worth revisiting.  If you’re a trial lawyer, you’ve seen jurors sleeping.  The key points are:

1.  People are tired.  Really, really tired.  They’re holding two jobs, or staying up late with kids, or standing up all day, or all those things.  Put one of those folks in a chair, in a quiet room, with no talking required or even allowed, and it’s amazing they stay awake as long as they do.  And like many things, our national fatigue is getting worse, not better.  The National Sleep Foundation’s 2009 survey concludes that “The number of people reporting sleep problems has increased 13% since 2001. In the past eight years, the number of Americans who sleep less than six hours a night jumped from 13% to 20%, and those who reported sleeping eight hours or more dropped from 38% to 28%.”  (The National Sleep Foundation is funded in large part by mattress and drug companies, but they claim research independence, and even if you discount their numbers, people are tired.)  On top of our other worries, nowadays we’re losing sleep over the economy.  “One-third of Americans are losing sleep over the state of the U.S. economy and other personal financial concerns,” the NSF said in March

2.  Fatigue affects decisionmaking.  Fatigue not only impairs memory and learning generally (Newsweek had an article last week summarizing recent research), but a a 2007 study suggests it specifically impairs moral judgment. 

3.  You can often spot fatigue in voir dire if you remember to look.  Tired jurors often look tired, will say they’re tired, and will make you tired when they describe what they have to do in a typical day.  You’ll miss it if you’re focus only on themes and attitudes in jury selection. 

4.  Sustained sleepiness is reason to dismiss a juror.  In most courts and most states, this is a no-brainer.  A dozing juror can’t hear the evidence and thus cannot decide the case on the same evidence as the others.  If a juror who keeps falling asleep isn’t dismissed, it’s usually because a lawyer forgot to ask, unless the trial has gone on so long and the panel is so small that the dismissal would mean (or threaten) a mistrial.

5.  You might be boring.  As we’ve noted, people are tired, so if a juror falls asleep while you’re talking, it’s usually not entirely your fault.  But think about whether it partly is.  The juror was awake earlier, right?  And if one juror slept through your expert’s testimony, how many others daydreamed?  Even if your trial is “heavy in testimony about bookkeeping and check-writing,” like that Akron fraud trial, you need to figure out how to make it interesting — preferably before anybody falls asleep.****

Research has shown that bad sleep can adversely affect a person’s physical health and emotional well-being. However, the amount of sleep one gets can also influence his or her decision-making. A study published in the March 1st issue of the journal SLEEP finds that sleep deprivation impairs the ability to integrate emotion and cognition to guide moral judgments.

The study, conducted by William D.S. Killgore, PhD, and colleagues at the Walter Reed Army Institute of Research, was focused on 26 healthy adults, who made judgments about the “appropriateness” of various courses of action in response to three types of moral dilemmas on two separate occasions: at rested baseline and again following 53 hours of continuous wakefulness.

Compared to baseline, sleep deprivation resulted in significantly longer response latencies (suggesting greater difficulty deciding upon a course of action) for moral personal dilemmas.

The findings suggest that continuous wakefulness has a particularly debilitating effect on judgment and decision making processes that depend heavily upon the integration of emotion with cognition, said Killgore, adding that the results provide further support to the hypothesis that sleep loss is particularly disruptive to the ventromedial prefrontal regions of the brain, which are important for the integration of affect and cognition in the service of judgment and decision making.

“Most of us are confronted with moral dilemmas nearly every day, although the majority of these choices are minor and of little consequence,” said Killgore. “Although such decisions are inextricably steeped in social, emotional, religious and moral values, and their correct courses of action cannot be determined through scientific inquiry, it is well within the realm of science to ask how the brain goes about solving such dilemmas and what factors, whether internal or external to the individual, contribute to the judgments and decisions that are ultimately reached.”

According to Dr. Killgore, these findings do not suggest that sleep deprivation leads to a decline in “morality” or in the quality of moral beliefs, but a latency to respond and the change in the leniency or permissiveness of response style as evidenced by the tendency to decide that particular courses of action were “appropriate” before and after sleep loss.

“Our results simply suggest that when sleep deprived, individuals appear to be selectively slower in their deliberations about moral personal dilemmas relative to other types of dilemmas,” said Killgore.

The present findings may have implications for those in occupations that frequently require periods of extended sleep loss and in which real-world moral dilemmas may be encountered (e.g., emergency medical services, military personnel in combat, fire/rescue workers), noted Killgore. When sleep deprived, such personnel may experience greater difficulty reaching morally based decisions under emotionally evocative circumstances and may be prone to choosing courses of action that differ from those that they would have chosen in a fully rested state, added Killgore.

Experts recommend that adults get seven-to-eight hours of sleep on a nightly basis.

Those who think they might have a sleep disorder are urged to discuss their problem with their primary care physician, who will issue a referral to a sleep specialist.

SLEEP is the official journal of the Associated Professional Sleep Societies, LLC, a joint venture of the AASM and the Sleep Research Society.

http://www.SleepEducation.com, a Web site maintained by the AASM, provides information about the various sleep disorders that exist, the forms of treatment available, recent news on the topic of sleep, sleep studies that have been conducted and a listing of sleep facilities.

http://www.aasmnet.org

U.S. Sup. Ct. to rule on animal cruelty law

Monday, April 20th, 2009

April 20 – The U.S. Supreme Court will decide whether a federal law that makes it a crime to sell videos of animals being tortured or killed violates constitutional free-speech rights.

The Supreme Court agreed to hear a U.S. Justice Department appeal defending the 1999 animal cruelty law after it was struck down for infringing free-speech protections.

A U.S. appeals court declared the law unconstitutional and overturned the conviction of a Virginia man, Robert Stevens, who sold three videos of pit bulls fighting each other and attacking hogs and wild boars.

His conviction in 2005 was the first in the country under the law. Stevens had been sentenced to 37 months in prison.

By a 10-3 vote, the appeals court rejected the government’s argument that, for the first time in more than 25 years, there was a new category of speech not covered by constitutional free-speech protections. Usually, videos and other depictions are protected as free speech, even if they show abhorrent conduct.

AOC REQUIREMENT FOR CONSTRUCITON BONDING TAKES EFFECT…

Monday, April 20th, 2009

Codell Construction has provided the full insurance required to start building nine new courthouses. Prior to an order by Chief Justice John Minton some construction companies for courthouse construction projects where only posting 5% bonds..
However, the company has not yet bought bonds for the 15 other construction projects that they’re managing for the state judicial system.
Nine Codell projects are now fully bonded — in Grant, Green, Jackson, Laurel, Logan, Marion, Pendleton, Shelby and Trigg counties — are all bout to begin construction.
One company, Trace Creek Construction, provided a 100 percent bond for the Fleming County courthouse projects last week.
The 100 percent bonds on the nine projects probably cost Codell about $1 million in premiums, which are usually about 1 percent of a bond’s costs.
The AOC thinks construction managers’ performance bonds should be in place when the contract is signed, a practice followed by other large public agencies, such as the Finance and Administration Cabinet and the University of Kentucky. The builders had only been providing bonds on the date that construction actually began.

U.S. Supreme Ct. to consider reverse discrimination case

Sunday, April 19th, 2009

The U.S. Supreme Court will take up a Connecticut reverse discrimination case involving whether a city can use race as a hiring or promotional standard for its employees.

The case comes from a 2004 lawsuit filed by 18 firefighters who allege they were denied a move up the command ranks of the New Haven, Conn., fire department because they were not members of a minority group.

The firefighters say their rights to equal protection as well as their protections under the Civil Rights Act of 1964 were trampled when the city threw out their test scores on a promotional exam because no African-American candidate received a high enough score to also be considered for the same promotion.

For its part, the city has argued that allowing the test scores with such wide racial discrepancies could have violated federal law and opened the city to being sued by minority test-takers.

U.S. District Judge Janet Bond Arterton in New Haven sided with the city, saying none of the plaintiffs were harmed since no one was promoted. She said the decision to disregard the test results affected all applicants equally.

“New Haven did not race-norm the scores (to favor minority candidates), they simply decided to start over,” the judge said. “While the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded.”

A three-judge panel of the New York-based 2nd U.S. Circuit Court of Appeals affirmed the decision, and later refused a rehearing of the case. The plaintiffs appealed to the U.S. Supreme Court.

Oral argument in the case is scheduled for Wednesday. Legal observers say the case could shape hiring and promoting standards in both the public and private sectors.

The case will be the first race-in-the-workplace case that the high court considers under the leadership of Chief Justice John Roberts Jr.

Roberts has said he opposes using race-based quotas.

In a 2007 decision that barred public school systems to take race into account to achieve or maintain integration, Roberts wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The city of Chicago last month paid a $6 million settlement to 75 white firefighters who said they lost promotions when their test scores were tossed out in 1986.

The case is Ricci v. DeStefano.

AOC ANNOUNCES ERRORS IN THEIR PRESS RELEASE RE: NEW RULES OF CONDUCT

Saturday, April 18th, 2009

Jamie Ball, a spokeswoman for the Administrative Office of the Courts, said several proposed changes were actually rejected by a Supreme Court committee but inadvertently included in the final rules released Thursday.
LawReader is preparing a report on the new rules and will publish our analysis as soon as possible.
One of the errors was in the wording of a new rule that requires lawyers to report the misconduct of other attorneys and judges.
As enacted by the court, the so-called “squeal rule” says an attorney “who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” must report it to the Kentucky Bar Association.
“The Supreme Court did not, however, adopt a rule that would have allowed lawyers to report confidential information to prevent clients from committing fraud.
And it did not include in its new rules commentary saying it is professional misconduct to manifest by “words or conduct” bias based on race, sex, sexual preference and other grounds.”
The so-called “squeal rule” adopted by the Supreme Court is broader than the one proposed by the committee and requires a duty to report an expanded category of misconduct. The proposed rule would have required reporting only criminal acts or conduct involving fraud, dishonesty or deceit.

AOC ANNOUNCES ERRORS IN THEIR PRESS RELEASE RE: NEW RULES OF CONDUCT

Saturday, April 18th, 2009

Jamie Ball, a spokeswoman for the Administrative Office of the Courts, said several proposed changes were actually rejected by a Supreme Court committee but inadvertently included in the final rules released Thursday.

LawReader is preparing a report on the new rules and will publish our analysis as soon as possible.

One of the errors was in the wording of a new rule that requires lawyers to report the misconduct of other attorneys and judges.

As enacted by the court, the so-called “squeal rule” says an attorney “who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” must report it to the Kentucky Bar Association.

“The Supreme Court did not, however, adopt a rule that would have allowed lawyers to report confidential information to prevent clients from committing fraud.

And it did not include in its new rules commentary saying it is professional misconduct to manifest by “words or conduct” bias based on race, sex, sexual preference and other grounds.”

The  so-called “squeal rule” adopted by the Supreme Court is broader than the one proposed by the committee and requires a duty to report an expanded category  of misconduct. The proposed rule would have required reporting only criminal acts or conduct involving fraud, dishonesty or deceit.

Attorney accidentally sues himself in Class Action

Friday, April 17th, 2009

 LawReader: Will the defendant file a wrongful use of civil process suit also?
3/11/2005  By Steve Korris – Madison St. Clair Record


Alton attorney Emert Wyss thought he could make money in a Madison County class action lawsuit, but he accidentally sued himself instead. Now he has four law firms after his money – and he hired all four.

Wyss’s boomerang litigation started in 2002, when he invited Carmelita McLaughlin to his office at 1600 Washington St. in Alton. Acting as her attorney when she bought a home in Alton and when she refinanced it, on both occasions she had chosen Centerre Title–a company that Wyss owned–to close her loans.

In the course of the attorney-client relationship, Wyss advised McLaughlin she might have a claim against Alliance Mortgage, holder of the first mortgage. Wyss believed Alliance Mortgage might have broken the law by charging a $60 fax fee when she refinanced.

He produced a retainer agreement providing for his legal services and those from the Lakin Law Firm of Wood River, Campbell and Brinkley of Godfrey, Freed and Weiss of Chicago, and Diab and Bock of Chicago. McLaughlin signed.

The Lakin firm filed a class action complaint against Alliance Mortgage in 2003. The complaint identified the Chicago firms and Campbell and Brinkley as other attorneys of record, but not Wyss.

According to the complaint, McLaughlin objected to the fax fee at closing.

Alliance Mortgage retained attorney Don Brown of Weiner Brodsky Sidman Kider, of Washington, D. C.

The deposition

In a deposition last year, Brown asked McLaughlin if she objected to the fees in general or the fax fee. She said, “To the fees in general.”

Brown asked if she saw a payoff statement. She said she did not recall it.

“If you didn’t see this document at loan closing then how would you have known that you were being charged a fax fee?” Brown asked.

“I knew I was being charged fees but I didn’t know that it was particular, you know, that it was a fax fee,” McLaughlin responded.

“Did you review this complaint for accuracy before your attorneys filed it?” Brown countered.

McLaughlin replied, “no.”

“Centerre Title is the one that collected the fees from you that you are now complaining about, is that right?” Brown questioned.

McLaughlin said, “yes.”

“Mr. Wyss was suggesting to you that you might want to complain about fees that his employee collected from you. That’s right, isn’t it?” Brown questioned.

McLaughlin said, “yes.”

Brown asked what Wyss said about the fax fee. But in the deposition, attorney Paul Marks of the Lakin firm objected.

“Attorney client privilege,” Marks said. “Confidential in nature.”

Brown countered, “If he is her attorney maybe he should be here, but he is not her attorney.”

Directing his questions again to McLaughlin, Brown asked if she knew how other law firms came to represent her. She said she did not.

“Were you ever asked whether you would consent to have any of these other law firms represent you in this litigation?” Brown asked.

“I was told there, you know, might be other people, and I did not have a problem with that,” McLaughlin replied.

“The fax fee of $60 represents two payoff statements, is that right?” Brown asked.

McLaughlin said she did not know.

“That would represent a fax fee of $30 per payoff statement, is that right?” Brown asked.

McLaughlin said, “If you say so. I don’t know.”

Brown asked if she understood that her lawyers would seek compensation for her as a class representative if the suit succeeded.

McLaughlin said, “That is my understanding.”

“But you have no understanding of what amount might be involved, is that right?” Brown asked.

McLaughlin said, “no.”

Brown deposes Wyss

Turning his attention to Wyss, Brown asked if plaintiffs he referred to the Lakin firm were told that he might receive part of the fees.

“They have signed an engagement, a retainer agreement which indicates that I am one of the attorneys representing them,” Wyss responded.

“You have retainer agreements then, in your possession, to give to people that include the Lakin law firm as one of the firms that will represent them, is that correct?” Brown asked.

Wyss said, “yes.”

Brown asked what prompted him to refer mortgage cases to the Lakin firm. Wyss said attorneys told him they were aware of lender abuse and suggested that he review Centerre Title files to see if his clients were victimized.

When asked who told him that, Wyss replied “Tim Campbell.”

Brown asked what prompted Campbell to talk to him.

“I consider him a true consumer advocate,” Wyss said. “I don’t know how he became aware, but he apparently was aware of other lender abuse in the area that I was not privy to.”

Brown asked if Campbell had a retainer agreement in the McLaughlin case.

Wyss said, “yes.”

“The true consumer advocate hopes to make some money out of this case, doesn’t he?” Brown asked.

Wyss said, “probably.”

“You yourself hope to make some money out of this case, don’t you?” Brown asked.

Wyss replied, “I would like to.”

Brown asked Wyss if he was McLaughlin’s attorney for purposes of this litigation.

Wyss said, “I am one of her attorneys.”

Brown asked if he was her attorney at the time Centerre Title closed the loan.

Wyss said, “no.”

“Emert Wyss, wearing his hat of Centerre Title company, collects the fees from Ms. McLaughlin, and now we have six, seven, eight months later, Emert Wyss wearing his hat as Ms. McLaughlin’s attorney suggests she file suit over the very fees his title company collected from her, is that right?” Brown asked.

Wyss replied, “That is right. It oversimplifies it, but that is correct.”

Brown asked Wyss if he had an agreement with the Lakin firm, and he responded that he had a verbal agreement.

When Brown asked what it was, Wyss replied, “I am to receive 10 percent of the attorney fee collected on these cases.”

“Since Ms. McLaughlin signed a written retainer that included your name on it as one of her attorneys, can you tell me why your name is not on her complaint?” Brown asked.

Wyss said, “I see no reason why it has to be on the complaint.”

Brown asked if he reviewed the complaint before it was filed and Wyss answered, “I do not believe I did, but I am not really sure. I may have.”

“You have no recollection of reviewing it before it was filed?” Brown asked.

Wyss said, “No recollection at the moment, no.”

Case status

After completing the depositions, Brown moved Circuit Judge Phillip Kardis for summary judgment.

In a separate motion, Brown asked Kardis to dismiss the suit for failure to join Centerre Title as a necessary party. He asked Kardis to disqualify all of McLaughlin‘s attorneys for improper solicitation, arguing that they used Wyss as a straw man to obtain cases from Centerre Title clients whom they could not directly approach.

In December, Kardis denied the motion to dismiss but ordered Alliance Mortgage to add Centerre Title and Wyss himself as third party defendants. Kardis denied the motion to disqualify McLaughlin’s attorneys.

Apparently, Wyss surrendered his ten percent. Kardis wrote, “Defendants were provided with a fee renunciation letter.” Kardis sealed the letter.

McLaughlin responded to Alliance Mortgage’s motion for summary judgment on March 3.

Alliance Mortgage must reply to McLaughlin’s response by March 24. Kardis has told the parties he would hear arguments on summary judgment after that.

Revised Supreme Court Rules of Professional Conduct that become effective 7-15-2009

Thursday, April 16th, 2009

Revised Supreme Court Rules of Professional Conduct that become effective 7-15-2009
Current Supreme Court Rules with revisions marked (underline indicates an addition, brackets indicate text to be deleted)
SCRulesPrior2009changesmarked.pdf
FRANKFORT, Ky. – For the first time in nearly 20 years the Supreme Court of Kentucky has approved comprehensive revisions to its rules governing attorney conduct, including a new rule that requires attorneys who know about professional misconduct by other attorneys or judges to report the misconduct.
Other significant changes to the Kentucky Rules of Professional Conduct address attorney duties regarding contingency fee agreements, confidential information, clients that are organizations, trial publicity, non-clients, documents sent inadvertently, the unauthorized practice of law and multijurisdictional practice.
The amended rules become effective July 15, 2009. The Kentucky Rules of Professional Conduct were last reviewed for proposed comprehensive revisions in 1989, with the changes going into effect in 1990. (Below are links to the rules that will become effective July 15 and the current rules for comparison purposes. The current rules are marked to show changes made to result in the revised rules. An underline indicates an addition, while a bracket indicates text to be deleted.)
“The revised rules reflect thoughtful changes that will bring Kentucky into line with national standards for attorney conduct,” Chief Justice of Kentucky John D. Minton Jr. said. “Our goal is to improve public confidence in our state’s legal profession by strengthening attorney accountability.”
The new rule on reporting attorney misconduct, Section 8.3, is adopted from the American Bar Association Model Rules of Professional Conduct. The rule mandates that an attorney who knows that another attorney committed a violation of the professional ethics code that raises substantial question about that attorney’s honesty, trustworthiness or fitness report the professional misconduct to the Kentucky Bar Association’s counsel. The KBA is an agency of the Supreme Court of Kentucky that is charged with regulation of the legal profession. All lawyers admitted to practice in Kentucky must be members of the KBA. The rule requires attorneys to report judicial misconduct to the Judicial Conduct Commission, which has authority over judges.
The revised rules are the result of a KBA committee established to review the code of conduct for Kentucky attorneys and propose changes based on the ABA Model Rules. After review by the KBA Board of Governors and the Supreme Court, public hearings were held on the proposed rule changes at the KBA conventions in 2007 and 2008. Following the hearings, the Supreme Court reviewed the proposals again and finalized the revisions.
“The Kentucky Supreme Court’s Rules of Professional Conduct establish the ethical duties lawyers have to clients, the courts, third parties, the profession and the public,” said KBA Chief Bar Counsel Linda Gosnell. “These new amendments will add to the solid foundation of the current rules and case law of our court.”
Professor William H. Fortune, who teaches ethics at the University of Kentucky College of Law, assisted the Supreme Court as it discussed the proposed rule changes.
“The Rules Committee and the Supreme Court worked long and hard on this project and the rules adopted by the court will greatly benefit the public and the legal profession,” he said.
Among the significant changes to the rules and their locations are:
*                   Contingent fees – Section 1.5 c
*                   Confidentiality – Sections 1.6 and 4.1
*                   Attorney’s duty when client is an organization – Section 1.13
*                   Non-clients – Section 3.4 g
*                   Trial publicity – Section 3.6
*                   Attorney duty upon receiving a document sent inadvertently – Section 4.4
*                   Unauthorized practice of law/multijurisdictional practice – Section 5.5
*                   Reporting professional misconduct – Section 8.3
Other noteworthy revisions to the rules and their locations are:
*                   Conflict of interest regarding current clients – Section 1.8
*                   Duties to former clients – Section 1.9
*                   Withdrawal of representation – Section 1.16
*                   Failure to correct false statement or disclose adverse authority – Section 3.3
*                   Special responsibilities of a prosecutor – Section 3.8
*                   Communication with individuals represented by other counsel – Section 4.2
*                   Attorneys sharing fees – Section 5.4
*                   Misconduct – Section 8.4
The Supreme Court of Kentucky is the state court of last resort and the final interpreter of Kentucky law. Seven justices sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be published, which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.

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Revised Supreme Court Rules of Professional Conduct that become effective 7-15-2009

Thursday, April 16th, 2009

Revised Supreme Court Rules of Professional Conduct that become effective 7-15-2009
Current Supreme Court Rules with revisions marked (underline indicates an addition, brackets indicate text to be deleted)
SCRulesPrior2009changesmarked.pdf
FRANKFORT, Ky. – For the first time in nearly 20 years the Supreme Court of Kentucky has approved comprehensive revisions to its rules governing attorney conduct, including a new rule that requires attorneys who know about professional misconduct by other attorneys or judges to report the misconduct.
Other significant changes to the Kentucky Rules of Professional Conduct address attorney duties regarding contingency fee agreements, confidential information, clients that are organizations, trial publicity, non-clients, documents sent inadvertently, the unauthorized practice of law and multijurisdictional practice.
The amended rules become effective July 15, 2009. The Kentucky Rules of Professional Conduct were last reviewed for proposed comprehensive revisions in 1989, with the changes going into effect in 1990. (Below are links to the rules that will become effective July 15 and the current rules for comparison purposes. The current rules are marked to show changes made to result in the revised rules. An underline indicates an addition, while a bracket indicates text to be deleted.)
“The revised rules reflect thoughtful changes that will bring Kentucky into line with national standards for attorney conduct,” Chief Justice of Kentucky John D. Minton Jr. said. “Our goal is to improve public confidence in our state’s legal profession by strengthening attorney accountability.”
The new rule on reporting attorney misconduct, Section 8.3, is adopted from the American Bar Association Model Rules of Professional Conduct. The rule mandates that an attorney who knows that another attorney committed a violation of the professional ethics code that raises substantial question about that attorney’s honesty, trustworthiness or fitness report the professional misconduct to the Kentucky Bar Association’s counsel. The KBA is an agency of the Supreme Court of Kentucky that is charged with regulation of the legal profession. All lawyers admitted to practice in Kentucky must be members of the KBA. The rule requires attorneys to report judicial misconduct to the Judicial Conduct Commission, which has authority over judges.
The revised rules are the result of a KBA committee established to review the code of conduct for Kentucky attorneys and propose changes based on the ABA Model Rules. After review by the KBA Board of Governors and the Supreme Court, public hearings were held on the proposed rule changes at the KBA conventions in 2007 and 2008. Following the hearings, the Supreme Court reviewed the proposals again and finalized the revisions.
“The Kentucky Supreme Court’s Rules of Professional Conduct establish the ethical duties lawyers have to clients, the courts, third parties, the profession and the public,” said KBA Chief Bar Counsel Linda Gosnell. “These new amendments will add to the solid foundation of the current rules and case law of our court.”
Professor William H. Fortune, who teaches ethics at the University of Kentucky College of Law, assisted the Supreme Court as it discussed the proposed rule changes.
“The Rules Committee and the Supreme Court worked long and hard on this project and the rules adopted by the court will greatly benefit the public and the legal profession,” he said.
Among the significant changes to the rules and their locations are:
*                   Contingent fees – Section 1.5 c
*                   Confidentiality – Sections 1.6 and 4.1
*                   Attorney’s duty when client is an organization – Section 1.13
*                   Non-clients – Section 3.4 g
*                   Trial publicity – Section 3.6
*                   Attorney duty upon receiving a document sent inadvertently – Section 4.4
*                   Unauthorized practice of law/multijurisdictional practice – Section 5.5
*                   Reporting professional misconduct – Section 8.3
Other noteworthy revisions to the rules and their locations are:
*                   Conflict of interest regarding current clients – Section 1.8
*                   Duties to former clients – Section 1.9
*                   Withdrawal of representation – Section 1.16
*                   Failure to correct false statement or disclose adverse authority – Section 3.3
*                   Special responsibilities of a prosecutor – Section 3.8
*                   Communication with individuals represented by other counsel – Section 4.2
*                   Attorneys sharing fees – Section 5.4
*                   Misconduct – Section 8.4
The Supreme Court of Kentucky is the state court of last resort and the final interpreter of Kentucky law. Seven justices sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be published, which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.

Gov. Beshear finds money for Dept. of Public Defenders

Thursday, April 16th, 2009


 FRANKFORT, Ky. – April 16, 2009 -Gov. Steve Beshear today announced that through a series of cost-cutting measures and reallocation of existing funds, the Department of Public Advocacy (DPA) has enough money to continue operating through the end of June.
“We acknowledge that this is a short term fix to a broader funding problem,” Gov. Beshear said.  “However, the services provided by this agency are too important to allow them to be discontinued for the remainder of this fiscal year.  The entire judicial system would be jeopardized.
“Working with the General Assembly, I am committed to finding funding to address the budget needs of both the prosecutors and the DPA next fiscal year,” Gov. Beshear said. “We will face another difficult budget next year, but the criminal justice system is – and must remain – a top priority.”
The Beshear administration has been working with DPA over the last several weeks to address their fiscal challenges. To address the budgetary shortfall this year, steps taken will include:
*                   Reducing expenditures to minimal levels;
*                   Continuously monitoring and evaluating the need for any expenditures between now and June 30;
*                   Implementing a hiring freeze on all positions in the agency for the remainder of the fiscal year;
*                   Delaying payment on a series of bills until the beginning of the next fiscal year; and
*                   Allocating an estimated $2 million from the State Salary and Compensation Fund to allow the DPA to operate through the end of the year.
“We appreciate the Governor’s time and attention to our needs and applaud his decision to ensure our constitutionally mandated services continue through this year so that our vital role in representing our clients, keeping the courts functioning and in ensuring public safety for Kentuckians continues,” said Public Advocate Ed Monahan . “We are also fortunate to have a Governor who will be working with us on our future funding needs.”
Commonwealth and County Attorneys’ offices throughout the state also faced a budget crunch this year, but unlike the DPA, prosecutors were able to call upon the legal authority to furlough employees to help address any shortfall. As a result, representatives of the Commonwealth and County Attorneys indicated that they have already taken steps to deal with this year’s budgetary shortfall and are focused on next year’s budgetary issues.
Mike Foster, Christian County Attorney, president of the Kentucky Association of Counties and a member of the Prosecutors Advisory Council stated that “prosecutors have attempted to deal with this budget crisis by implementing over $5 million in budget cuts during the current fiscal year ending June 30, 2009 through a series of layoffs, furloughs and the transmittal of local funds to the State Treasury.
“Unfortunately, Prosecutors are now confronted with an additional shortfall of $4.7 million in the Fiscal Year beginning July 1, 2009. Additional cuts of this magnitude would totally devastate the criminal justice system in the state of Kentucky.”
Foster further stated “we truly appreciate Governor Beshear’s commitment to addressing these critical issues and the budget shortfalls that created this crisis.”
Proposed legislation that would have allocated an additional $4.7 million each to DPA and Commonwealth and County Attorneys did not pass in the recently completed legislative session. That raised questions about whether the Governor has the authority to appropriate funding on his own to prosecutors and DPA.
However, Gov. Beshear said it was not necessary to resolve that issue since this solution reallocates existing funds. The more important issue, he said, is the long-term funding of the criminal justice system – a solution that will require work from both the executive and legislative branches.
 

Russell County Justice Blog raises new claims against Judge Cletus Miracle

Tuesday, April 14th, 2009

Russell County Justice Blog raises new claims against Judge Cletus Miracle
 

 Maricle was in rush to assert control of Russell County Cases.
RUSSELL SPRINGS KENTUCKY:Drug Cases noticed in Maricle’s RICO Indictment As previously reported Senior Judge Cletus Maricle was recently indicted by the Federal Eastern District of Ke … read more http://www.usjusticewatch.com/index.php
 

·                          Exclusive- Maricle was in rush to assert control of Russell County Cases.
·                          State Murder Charge Against Maricle dismissed on News Years Day
·                          There’s Another New Judge in Russell County
·                          Is Maricle’s Corruption Case Tied to Russell County?
·                          Special Judge in Corruption Case Gets Indicted By FBI for Corruption


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