Archive for March, 2010

FEDERAL JURY CONVICTS FORMER CIRCUIT JUDGE CLETUS MIRACLE AND 7 OTHER DEFENDANTS IN CLAY COUNTY VOTE-BUYING CASE

Thursday, March 25th, 2010

Eight Clay County politicians corrupted the election process in recent years, buying and stealing votes in pursuit of power and money, a federal jury ruled Thursday in Frankfort.

The jury deliberated for more than 9 hours over the past two days. 

The jury convicted all eight people on trial, including former Circuit Judge R. Cletus Maricle and former school Superintendent Douglas C. Adams, on a racketeering conspiracy charge. That charge was that they used the county election board as a tool to rig elections, appointing corrupt precinct officers to help with vote-buying.

The jury convicted several of the defendants on other charges as well, including mail fraud, extortion and laundering money that was used to buy votes.

They face up to 20 years in prison, though their sentences will likely be less under advisory guidelines.

U.S. District Judge Danny C. Reeves ruled that the eight defendants’ bonds be revoked and they be jailed once Thursday’s hearings are over because their conviction could pose a danger to the community and they might flee.

GEORGIA SUPREME COURT DECLARES CAPS ON MALPRACTICE LAWSUITS ARE UNCONSTITUTIONAL

Monday, March 22nd, 2010

The Georgia Supreme Court announced today that, in a unanimous 7-0 ruling, it has found a state law limiting damages awarded for pain and suffering in medical malpractice lawsuits to be unconstitutional.

The cap on awards was the heart of the 2005 attempt at tort reform. Look for the ruling to restart Georgia’s own debate over health care and its costs in the Legislature.

Click here for the link to the decision.

In a decision written by Chief Justice Carol Hunstein, the high court has upheld a Fulton County judge’s ruling and found that the caps placed on so-called “noneconomic damages” violate a citizen’s constitutional right to a trial by jury.

“In sum, …we conclude that the noneconomic damages caps in [Official Code of Georgia] § 51-13-1 violate the right to a jury trial as guaranteed under the Georgia Constitution,” today’s opinion says

LAWREADER PRAISES KENTUCKY SUPREME COURT – THIS COURT IS AMAZING….end result fairness prevails

Sunday, March 21st, 2010

 This week the Ky. Supreme Court issued 58 decisions.  A synopsis of all Kentucky Appellate decisions is published by LawReader shortly after they are released by the court.   We have been publishing a weekly synopsis of all Ky. Appellate decisions since 2003.

 Over that time the makeup of the Sup. Ct. has drastically changed.  We call the current court the “YOUNG COURT”.  

 We continue to find examples of the fine work they are producing.  We note that there is not one Justice on the current court who is doctrinaire.   The pre 2007 makeup of the court had several justices that were highly predicable….they would rarely ever rule in favor of a criminal defendant.   We can’t say that about the current court.   As it should be, each decision is weighed on its merits.    

 When I read a case, I cannot predict how the court will rule until I have read the whole case.   Before 2007, one was always certain that two or three justices would vote against any criminal defendant, and were highly likely to find new exceptions to constitutional rights.

 But the times they are a changin’….this YOUNG COURT, has demonstrated a willingness to apply the Bill of Rights more in line with the intent of the authors of the Bill of Rights.  Once again a defendant is treated with respect, and his rights are appropriately protected.

 Every attorney should be aware of what a great job this YOUNG COURT is doing.  We should rejoice that every Justice is actually reading the briefs…and their bias against criminal defendants is not predictable .

 The current decisions for March 2010 released on March 18, included a number of cases in which a sense of fairness and reasonableness has been demonstrated by the court.

 The court reversed prior law regarding the definition of a gun as being a dangerous weapon.  Prior law allowed criminal sentences to be enhanced if the defendant had put his finger in his pocket and gave the impression it was a gun.   Several rulings this month have reversed prior law and now requires an actual gun to be used.   A minority of the court quite reasonable dissented and said the new law should go further and consider whether the gun was actually operational, but the majority at least required a gun to be used before the sentence could be used to enhance the sentence under the deadly weapon rule.   So now before the sentence can be enhanced, the def. must actually have used a deadly weapon.   And another case ruled that the trial judge would not make the determination if a weapon was deadly, this fact finding was restored to the province of the jury.  Great stuff if you believe a statute ought to be interpreted according to its actual language.

 Another ruling held that an attorney hired by a next friend or a guardian actually has an attorney=-client relationship with the minor.   A malpractice claim which was dismissed by the trial judge was reversed and the claim allowed to be given a trial.   In that case the guardian withheld the minors money.  End result….fairness done.

 Condemnation rights of a telephone company were limited and an abuse of process claim allowed to proceed when the court reversed the Ct. of Appeals.  The Supreme Court held that the statute does not allow a telephone company to condemn an entire piece of property and threaten “costly litigation” to coerce a settlement from the landowner.  End result….fairness done.

 In a self dense case a new statute was not applied to a defendant who did not withdraw, and instead under a new statute which states that there is no duty to withdraw before defending yourself was not retrospective, but still the court found a way to apply the current policy created by the legislature.  End result….fairness done.

 A case where the Commonwealth and trial court allowed instructions on robbery was thrown out when the defendant stole nothing and instead fled the scene.

 An appeal which was dismissed by the Ct. of Appeals due to the fact the local circuit clerk closed their office early for a local holiday, was reinstated.  End result…fairness done.

 On one case, the court set aside a summary judgment when the judge dismissed a medical malpractice claim in a hearing the plaintiff was unable to attend, and the court made no inquiry about the reasons the plaintiff had not identified the proposed expert witness.  End result…fairness done.

 Use of 404B evidence was disallowed when the court failed to conduct an in camera review.   End result…fairness done.

 A case was reversed when the police crashed into a home, handcuffed the defendant, and failed to give Miranda warning before questioning the defendant.  They ruled the defendant was clearly in custody and thus Miranda applied.    .   End result…fairness done.

 Other cases granted relief when the trial court disallowed proper cross-examination by the defense.  911 tape transcripts disallowed when they were found inaudible.  Kaspar records were allowed to be discovered by court…they held that a statute granting confidentiality did not override constitutional rights of defendant to obtain exculpatory evidence.  The court threw out PFO sentence where the Commonwealth did not properly provide certified proof of prior convictions.  Photocopies were found not adequate. End result…fairness done.

  In one case a Trial Court denied proper Faretta hearing on right of defendant to defend himself was corrected and such hearings were upheld.  A case was reversed where the prosecutor defined the law for the jury, and did so improperly.    They held that the judge not the prosecutor should define the law…and that law read to the jury must be correct.  The Supreme Court reversed the trial court which held that settlement of civil case by a government agency was not subject to disclose.  The Court held that agencies settling civil claims are not immune from Open Records disclosure.  End result…fairness done.

 There was one decision which appears to have created a loophole for the Commonwealth to mention the defendants silence….but this was limited…I hope this is not expanded.

 I don’t mean to imply that the Commonwealth is in any way detrimentally effected by this YOUNG COURT, they are plenty tough when the facts of the case and the correct law requires it.  But truly meritorious claims are being heard.

 I would suggest that if you have a meritorious claim, you should protect the record, and appeal all errors.   These people will actually read your brief!!!

 SELECTED KEYNOTES FROM THE MARCH DECISIONS OF THE KY. SUP. CT. - 

  TELEPHONE COMPANY MAY NOT CONDEMN ENTIRE PROPERTY ONLY AN EASEMENT- ABUSE OF PROCESS DISCUSSION – DAMAGES ALLOWED – ABUSE NEED NOT BE SUBSEQUENT TO FILING OF CIVIL PROCESS

 DETERMINATION IF INSTRUMENT DANGEROUS WEAPON SHOULD BE LEFT TO THE JURY – DOUBLE JEOPARDY- NO CULPABLE MENTAL STATE REQUIRED FOR BURGLARY

 DETERMINATION IF INSTRUMENT DANGEROUS WEAPON SHOULD BE LEFT TO THE JURY –

ATTORNEY CLIENT RELATIONSHIP WITH MINOR- GUARDIAN FAILED TO PAY MINOR-NEXT FRIEND-LEGAL MALPRACTICE-STATUTE OF LIMITATIONS

 GUN THAT WOULDN’T FIRE STILL DEADLY WEAPON-JURY INSTRUCTION- SINGLE PERSON IDENTIFICATION STANDARDS   

 PRIOR LAW OVERRULED-  DEADLY WEAPON -GUN- TO BE DEFINED AS A CLASS OF WEAPON WHICH CAN FIRE A SHOT- UNLOADED GUN IS DEADLY- TOY GUN, STICK OR FINGER IN POCKET IS NOT

 NO DUTY TO WITHDRAW – SELF-PROTECTION- VOIR DIRE-CLOSING ARGUMENT-PROSECUTORIAL MISCONDUCT -NO RETROSPECTIVE APPLICATION OF NEW STATUTES REGARDING DUTY TO WITHDRAW

 POSSESSION OF CONTROLLED SUBSTANCE VS. PROMOTION CONTRABAND-DOUBLE JEOPARDY-INTERVENING LEGAL ACT-INSTRUCTIONS

 SUMMARY JUDGMENT DUE TO FAILURE TO NAME MEDICAL EXPERT IN MED MALPRACTICE CASE PREMATURE

 IDENTIFICATION OF PERPETRATOR TO MEDICAL PERSONNEL IS IMPROPER HEARSAY – EDWARDS CASE OVERRULED-

 ROBBERY IN THE FIRST DEGREE REQUIRES PHYSICAL VIOLENCE DURING THE ROBBERY AND MERE ESCAPE AFTER ABANDONMENT OF ATTEMPT TO STEAL DOES NOT JUSTIFY FIRST DEGREE ROBBERY INSTRUCTION

 COURT ERRED IN ADMITTING PARTIALLY INAUDIBLE 911 TAPE – PROCEDURES FOR REVIEWING AUDIO TAPES

 EVIDENCE OF PRIOR ACCUSATIONS SHOULD BE REVIEWED BY COURT IN CAMERA- CABINET DID NOT PROVIDE RECORDS ORDERED BY COURT AND COURT ERRED IN NOT OBTAINING SUCH RECORDS FOR HIS REVIEW

 MIRANDA WARNING REQUIRED WHEN DEFENDANT HANDCUFFED, POLICE HAD FORCED THEIR WAY INTO HOME, AND DEF. CLEARLY NOT FREE TO LEAVE

 MEDICAL MALPRACTICE – NOTICE OF EXPERT BASIS FOR DISMISSAL BUT TRIAL COURT SHOULD HAVE HELD STATUS CONFERENCE BEFORE GRANTING SUMMARY JUDGMENT AGAINST PLAINTIFF -  DEFENDANT NOT REQUIRED TO PROVE THAT PLAINTIFF COULD NEVER PROVE THEIR CASE

 ADVERSE POSSESSION -HUNTING AND FISHING ON CONTESTED PROPERTY NOT SUFFICIENT TO ESTABLISH ADVERSE POSSESSION

 SOME PROVISIONS OF KRS CHAPTER 17 PERMIT DNA SAMPLING OF JUVENILE PUBLIC OFFENDERSSOME OFFENSES LISTED IN CHAPTER 17 DO NOT …

 EVIDENCE OF CLASS HABIT NOT ALLOWED – BOLSTERING OF WITNESS- VINDICTIVENESS OF PROSECUTOR

 CONFRONTATION CLAUSE VIOLATED- SPEEDY TRIAL- EVIDENCE OF FLIGHT- PROSECUTORS FAILURE TO INTRODUCED PROOF MENTIONED IN OPENING STATEMENT NOT ERROR

 CT. OF APPEALS OVERRULED- FAULTY CONSTRUCTION IS NOT OCCURENCE COVERED BY PROPERTY INSURANCE

 APPEAL WAS UNABLE TO BE FILED DUE TO CLOSING OF CLERK’S OFFICE FOR LOCAL EVENT, APPELLATE GIVEN ANOTHER DAY, CT. OF APPEALS OVERRULED

 DVO PETITION EVIDENCE NOT RELATED TO CRIME PROPERLY EXCLUDED

 WRIT SEEKING TO DENY DISCOVERY OF KASPAR DRUG PURCHASE RECORDS DENIED- CONSTITUTIONAL RIGHT OF DEFENDANT TO OBTAIN EXCULPATORY EVIDENCE SUPERCEDES KY. STATUTE MAKING KASPAR RECORDS CONFIDENTIAL

 HEARING REQUIRED IF DEF. WISHES TO CHANGE COUNSEL- HYBRID REPRESENTATION- GIBBS RULE- COMMENTS OF PROSECUTOR NOT MISCONDUCT

IMPROPER EXCLUSION OF CROSS-EXAMINATION- DEF. NOT ALLOWED TO CROSS-EXAMINE WITNESSES WHO COULD NOT REMEMBER PRIOR (RECORDED) STATEMENTS FOUND TO BE ERROR 

 COURT RECORDS OF PRIOR CRIMES MUST BE CERTIFIED- CHARACTER EVIDENCE OF SPECIFIC INSTANCES–INITIAL AGGRESSOR INSTRUCTIONS

 NEW LAW re: FARETTA HEARING- RIGHT OF DEF. TO REPRESENT HIMSELF MAY NOT BE ADVANCED TO DELAY OR INTERFERE WITH TRIAL -LEGAL SKILL OF DEF. NOT APPROPIATE BASIS TO DENY SELF-REPRESENTATION

 PHOTO COPIES OF CONVICTION NOT PROPER TO PROVE PRIOR CONVICTION FOR PFO CONVICTION – DOUBLE JEOPARDY  

 WITNESS MAY NOT DEFINE THE LAW, ONLY COURT SHOULD DO THIS, AND MISTATEMENT OF LAW MAKES ERROR WORSE, BUT IN THIS CASE IT WAS HARMLESS

 OPEN RECORDS ACT – CONFIDENTIAL SETTLEMENT AGREEMENTS BY PUBLIC AGENCY NOT PROTECTED FROM DISCOVERY AND DISCLOSURE

 INTERNET DOMAIN NAMES LACK STANDING TO SEEK WRIT OF PROHIBITION

  COMMENT ON RIGHT TO REMAIN SILENT EXPANDED

POKER DOMAINS IN JEOPARDY AS KENTUCKY SUPREME COURT REVERSES CT. OF APPEALS – GAMBLING DOMAINS DID NOT HAVE STANDING TO FILE WRIT

Saturday, March 20th, 2010
 

 

 

OnThursday March 18, 2010 , the Kentucky Supreme Court ruled that iMEGA and the Interactive Gaming Council had no standing to file a writ of prohibition that stopped the state of Kentucky from seizing control of several well-known poker domains, including sites associated with PokerStars, Full Tilt, DoylesRoom, Bodog, Absolute Poker, UltimateBet, and Cake Poker.

Therefore, it reversed the Kentucky Court of Appeals ruling and effectively ruled in favor — at least temporarily — of the state.

“Because the parties seeking the writ have failed to demonstrate that they have standing to do so, this Court reverses, though this done not foreclose the possibility of future relief,” wrote Justice Mary Noble in the court’s decision.

The Kentucky Supreme Court cited the associations’ failure to disclose who exactly they represented in the case.

“Instead of owners, operators, or registrants of the website domain names, the lawyers opposing the Commonwealth claimed to represent two types of entities: (1) the domain names themselves and (2) gaming trade association who profess to include as members registrants of the seized domains, though they have yet to reveal any of their identities.”

The court even acknowledged that the lawyers on behalf of the associations made “numerous, compelling arguments endorsing the grant of the writ of prohibition,” but that “(a)lthough all such arguments may have merit, none can even be considered unless presented by a party with standing.”

The court reiterated its position later in the decision.

“While IGC claims to represent 61 of the seized domains and iMEGA purports to represent ‘some’ more, this Court cannot simply take their words for it.”

Brennan seemed unfazed by the ruling, and issued a press release after it indicating that he was still optimistic the poker community would win out in the end.

“In the written decision, the Court clearly indicates they agree with our arguments, and are inviting us to refile, so that the technicality of the standing issue can be resolved,” said Brennan. “It’s unfortunate, but I can’t imagine that Kentucky’s lawyers will celebrate a ruling that says ‘Bring us an owner, so we can rule in your favor’”.

The court acknowledged that associations are not always legally responsible to divulge and identify specific members, but said that this case was atypical because “there is no stipulation as to iMEGA or IGC’s memberships” and that “nothing is known about their members.”

“Through their unwillingness to identify any of their members, iMEGA and IGC failed to meet this burden. As such, iMEGA and IGC lack standing and, therefore, their writ petition should have been denied,” Justice Noble wrote.

The court stated in its opinion that “(i)f a party that can properly establish standing comes forward, the writ petition giving rise to these proceedings could be re-filed with the Court of Appeals…Until then, however, consideration of the merits of this matter is improper for lack of standing.”

Justice Noble authored the decision, which had no dissenting votes. Justices John Minton, Lisabeth Hughes Abramson, Wil Schroder, and Daniel Venters concurred, with Deputy Chief Justice Will Scott concurring “in result only.”

APPEALS COURT LETS STAND DECISION THAT ASHCROFT CAN BE SUED – IMMUNITY FOR PROSECUTORS AGAIN WEAKENED

Saturday, March 20th, 2010
   

March 18, 2010 

The full Western appeals court voted Thursday to let stand its September decision that former U.S. Atty. Gen. John Ashcroft is not immune from a civil action charging that he violated a Kansas-born Muslim convert’s constitutional rights by having him arrested without probable cause.

Ashcroft had petitioned the U.S. 9th Circuit Court of Appeals for rehearing of his claim of immunity, which was denied in the 2-1 ruling six months ago that Abdullah Kidd could proceed with his lawsuit.

Kidd, a former University of Idaho running back whose birth name was Lavoni T. Kidd, claims in his suit that Ashcroft‘s policy of using material witness warrants to detain those suspected of terrorist ties subjected him to unreasonable search and seizure and denied him due process of law. Kidd lost his security clearance and his government contractor job after his March 2003 arrest and 16-day detention for interrogations in Virginia, Oklahoma and Idaho.

In the September ruling by the split three-judge panel, the majority characterized Ashcroft’s alleged detention policy as “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Thursday’s vote to deny rehearing by an 11-judge panel included a dissent signed by eight of the court’s 26 active judges, an action likely to draw the attention and review of the U.S. Supreme Court before Kidd’s suit can go to trial.

Gov. signs bill to charge jail inmates medical co-payments

Saturday, March 20th, 2010

FRANKFORT, Ky.—Gov. Steve Beshear today signed Senate Bill 47, which will allow county jails to charge a medical co-payment fee to state prisoners housed in county facilities, mirroring the policy for county inmates.

The bill, sponsored by Sen. John Schickel, of Union, will provide partial relief for counties coping with the great cost of housing and caring for Kentucky’s rapidly increasing inmate populations. Beginning in 2005, this cost grew to represent nearly 45 percent of some counties’ general funds.

“Currently, the costs associated with housing and caring for inmates continues to be a tremendous drain on public budgets for government at all levels,” said Gov. Beshear. “I’m pleased to ceremonially sign into law a bill from the 2010 legislative session that will offer county jailers some small relief related to the costs of providing health care for inmates, which is a major driver of exploding jail budgets.”

The bill will not impact inmates unable to afford the co-payment, and marks a step toward greater consistency in the treatment of inmates housed in local facilities.

“This is a small piece of legislation with big implications,” said Sen. Schickel. “It will save county governments millions in litigation costs. This is a taxpayer savings bill.”

The bill unanimously passed both the House and Senate.

THIRD CIRCUIT OUTLINES 3-STEP PROCEDURE FOR APPLYING FEDERAL SENTENCING GUIDELINES

Thursday, March 18th, 2010

U..S. v. DORCANT

UNITED STATES OF AMERICA,  v. HUBERT DORCANT, Appellant.

No. 09-1259.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) March 9, 2010.

Filed: March 17, 2010.

 

In United States v. Gunter, 462 F.3d 237 (3d Cir.2006), this court made explicit the three-step process that the district courts of this Circuit must follow subsequent to the Supreme Court’s ruling in United States v. Booker, 543 U.S. 220, 125 (2005).

 

First, the court must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker.

 

Secondly, they must formally rule on the motions of both parties and state for the record whether they are granting a departure and how that departure affects the Guidelines calculation, taking into account our Circuit’s pre-Booker case law, which continues to have advisory force.

 

Thirdly, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose, regardless whether it varies from the sentence calculated under the Guidelines. U.S. v. Jackson, 467 F.3d 834, 837 (3d Cir. 2006).

 

We review the sentence imposed by the district court for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). We conduct that review for abuse of discretion in two stages. Tomko, 562 F.3d at 567.

 

 First, we ensure that “the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, . . . or failing to adequately explain the chosen sentence[.]” Id.

 

Second, if the district court committed no procedural error, we consider the sentence’s substantive reasonableness. Id. Our review for substantive reasonableness is “highly deferential.” Id. at 568 (quoting United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007)). In other words we will affirm the district court’s sentence “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568

Federal Judge Rules that Commonwealth Attorney Gary Gregory and Circuit Judge Oscar House “took part in vote fraud” in Clay County. They were not indicted.

Thursday, March 11th, 2010

March 11, 2010

In an unusual evidentiary ruling U.S. District Judge Danny C. Reeves made a finding in the criminal trial of Clay County officials on vote-buying charges, that identified eight non-indicted individuals who “…took part in vote fraud” reported the Lexington Herald-Leader. 

None of the named individuals have been charged with any crime and are not on trial. The judge made the finding in ruling on whether certain evidence could be admitted. The finding was based on a level of evidence lower than that needed to convict someone in a criminal trial.

Judge Reeves was quoted as saying those involved in election fraud included Circuit Judge Oscar Gayle House; Judge-Executive Carl “Crawdad” Sizemore; Commonwealth’s Attorney Gary Gregory; former state Rep. Barbara Colter and current state Rep. Tim Couch, a Hyden Republican who defeated Colter; former Jailer Charles Marcum; former Sheriff Edd Jordan, who is running for re-election; Manchester attorneys Yancey White and Carl Anthony Short; and Roy Morgan, a former magistrate influential in politics

Supreme Court Bars Attorneys From Bankruptcy Advice to Increase Debt Before Filing

Monday, March 8th, 2010

March 8  The Supreme Court on Monday unanimously upheld part of the U.S. bankruptcy law that bars attorneys from advising clients to take on more debt while considering a bankruptcy filing.

The opinion by Justice Sonia Sotomayor reverses a ruling by a U.S. appeals court that a provision of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was unconstitutionally broad and violated free-speech rights.

The provision prohibits bankruptcy professionals like attorneys from advising their clients to incur more debt, such as mortgages or student loans, before filing for creditor protection.

The ruling is a victory for the U.S. Justice Department, which defended the provision. It said Congress adopted the law fight abuse of the bankruptcy system encouraged by lawyers.

Department attorneys also argued that the law can be interpreted narrowly to prohibit only advice that a client take new debt with the intent of abusing the bankruptcy system. Sotomayor agreed with that interpretation.

Justice Sotomayor also upheld the law’s requirement that attorneys make certain disclosures in their advertisements and ruled that attorneys who provide bankruptcy assistance to certain persons are debt relief agencies within the meaning of the law. (Reporting by James Vicini. Editing by Robert MacMillan)