Archive for December, 2010

Now you can get instant weather report for your locality

Thursday, December 30th, 2010

A network of local weather stations are being erected throughout the state of Kentucky.   You can determine the current weather conditions  for  over 50 locations around the state.  With this service you no longer have to rely on weather reports from Louisville, Lexington or Cincinnati, which may be far different then you location.  

Just go to WEATHER-LOCAL KY. and then click on the number of the weather station near your city, and you can find the instant temperature, wind, humidity, rain fall totals, and weather history.

The Kentucky Mesonet is a network of automated weather and climate monitoring stations being developed by the Kentucky Climate Center at Western Kentucky University to serve diverse needs in communities across the Commonwealth of Kentucky.

KENTUCKY NEEDS TO CONTROL RISING COST OF CORRECTIONS By Tom Handy and Guthrie True

Saturday, December 25th, 2010

It is uncommon, especially in these days of polarizing political rhetoric, to find two people with significantly different points of view working toward the same goal. Yet that is exactly the situation we find ourselves in as members of a state task force that is looking for solutions to Kentucky’s big and growing challenges in corrections spending.

One of us is a veteran prosecutor and former commonwealth’s attorney, the other a longtime criminal defense attorney and former public defender. In a courtroom, we would find ourselves on opposite sides of the room.

However as members of the Task Force on the Penal Code and Controlled Substances Act, we are finding common ground on the need to increase public safety by getting a better return on the dollars Kentucky invests in corrections.

The task force was created by the legislature earlier this year with the support of the Gov. Steve Beshear and Chief Justice John D. Minton Jr. — another noteworthy display of bipartisan cooperation by the three branches of government. Its work is being done in partnership with the respected, non-partisan Public Safety Performance Project of the Pew Center on the States. Pew is working in more than a dozen states (rising corrections costs being a nationwide problem) to analyze data to identify what is driving prison growth and work with state officials to develop research-based, fiscally sound policy options to protect public safety and strengthen offender accountability while containing costs.

Pew provides valuable research to help ensure that decisions are based on facts, not on anecdotal evidence.

For example, the data shows Kentucky has had one of the fastest-growing prison populations in the nation over the past decade. Even with a decline during the past three years, our inmate population is 45 percent larger than it was at the beginning of the decade — and that compares with 13 percent growth for the nation’s state prison system as a whole.

Even though it would be logical to conclude that this increase has come about as a result of a higher crime rate, that is not the case. Our serious crime rate has been well below that of the nation and other southern states since the 1960s, and the current crime rate is about what it was in 1974.

As a result of this prison growth, state spending on corrections has more than tripled in the last 20 years If spending more money meant the public would be better protected from inmates who eventually leave prison — and, of course, the vast majority of them do — it would be more than worth the cost. But that isn’t the reality of our situation. In fact, despite increased spending, the percentage of offenders who returned to prison within three years of release has increased over the past decade, from 37 percent in 1997 to 43 percent in 2006.

What is contributing to the growing number of inmates?

More people are being arrested, even as the crime rate has remained flat, with the increase being driven by a 70 percent spike in drug offense arrests. In addition, Kentucky uses prison — as opposed to alternative sentences like probation — at a much higher rate than most other states. And parolees who do not have a new felony conviction but who violate the conditions of their release are being returned to prison at a higher rate.

As the task force considers possible strategies to protect public safety and control corrections spending, the need for change is clear. We simply cannot afford to continue doing things the way we’ve always done them. If we fail to act now, projections show that Kentucky will have to spend at least $161 million more on corrections by 2020.

And so you find a prosecutor and defense attorney coming together — with legislators, state and local officials and the chief justice of the Kentucky Supreme Court — in an effort to chart a course that will make a positive difference. The task force plans to issue its recommendations to the state legislature in January and the focus will be clear: getting Kentuckians a better return on their public safety dollars through policy options that protect public safety and hold offenders accountable, while controlling corrections costs.

Tom Handy, who practices law in London, is a former commonwealth’s attorney. Attorney Guthrie True of Frankfort is a former public defender.

Read more: http://www.kentucky.com/2010/12/23/1577269/kentucky-needs-to-control-rising.html#more#ixzz198oFPkqN

U.S. Supreme Court becoming a tool for corporate interests: study

Monday, December 20th, 2010

A study has found that the Supreme Court under Chief Justice John Roberts has undergone a fundamental shift in its outlook, ruling in favor of businesses much more often than previous courts.

According to the Northwestern University study, commissioned for the New York Times, the Roberts court has sided with business interests in 61 percent of relevant cases, compared to 46 percent in the last five years of Chief Justice William Rehnquist, who passed away in 2005.

   A second study, from the Constitutional Accountability Center, has charted the growing influence of the US Chamber of Commerce on the courts. The chamber started filing amicus briefs with the top court three decades ago in an effort to prompt more business-friendly rulings.

According to the study, the Roberts Supreme Court has sided with the Chamber 68 percent of the time, up from 56 percent under the Rehnquist court, and noticeably higher than the 43 percent during the relevant part of Chief Justice Warren Burger’s court, which ended in 1986.

The court is expected to rule soon in two cases that could once again benefit corporations. A case involving AT&T Mobility and another involving Walmart will challenge the practice of class-action lawsuits. If the court sides against customers in the AT&T case — or against plaintiffs claiming gender discrimination at Walmart — it could restrict or even end class-action lawsuits, which many legal observers say are among the most powerful tools to redress corporate misbehavior.

The full article on this subject may be found at:

The Raw Story – http://www.rawstory.com/rs/2010/12/supreme-court-tool-corporate-interests/

The Kentucky Court Recognizes Limit on Trial Judge’s Discretion in denying Leave to Amend Pleadings.

Saturday, December 18th, 2010

 By Judge Stan Billingsley (Ret.)

     We believe every lawyer should be aware that a Trial Judge’s discretion may have limits. It is possible that you may have an issue in the future since CR 15.01 has the potential for broad application.   The Trial Judge does not have absolute discretion to deny a motion to amend the pleadings.    

 CR 15.01 for example that while the court has discretion to grant leave to file an amendment to the pleadings, the Supreme Court has said, that leave to amend “shall be freely given when justice so requires.”

 See   Mosley v. Mosley (Ky. App., 2010) NO. 2009-CA-000177-MR

 ” The amendment of pleadings in civil cases, including an action for dissolution of marriage, is governed by CR 15.01.

 We emphasize that although it is often recited that the granting of relief is within the trial court’s discretion, the rule states that leave to amend “shall be freely given when justice so requires.” CR 15.01.

 Thus, the discretion afforded the trial court cannot be exercised so as to deprive litigants of a just result.

         To further the purpose of providing a just result to our litigants, Kentucky has adopted the view that the rule should be liberally construed. In Stout v. City of Martin, 395 S.W.2d 591 (Ky. 1965), the Court summarized the prevailing view when considering a motion to amend a pleading when it stated:

 Under liberal modern practice a change in the theory on which relief is demanded is not an obstacle to amendment, nor is the assertion of a new claim that could have been joined in the first instance with the claim stated in the complaint, per CR 18.01. See Clay, Kentucky Practice, CR 15.01, Note 4; Dombrovskis v. Murff, 24 F.R.D. 302 (S.D.N.Y.1959).

 ’If no problem of relation back is involved, the question for the court is not whether a new and independent claim or ’cause of action’ is pleaded by amendment but whether the just and expeditious disposition of the controversy between the parties will be advanced by permitting the amendment.’ Barron & Holtzoff, Federal Practice and Procedure, § 448 (Vol. 1A, p. 753).

 Nevertheless, by the express terms of the rule permission to amend is mandatory only if ‘justice so requires.’

       ‘The more common reasons for denying leave to amend are that the amendment will result in undue prejudice to the other party, is unduly delayed, is not offered in good faith, or that the party has had sufficient opportunity to state a claim and has failed.’ 3 Moore’s Federal Practice, R15 (Par. 15.08, pp. 897-900).         Id. at 592-593.

    Subsequently, in Shah v. American Synthetic Rubber Corporation, 655 S.W.2d 489 (Ky. 1983), the Supreme Court held that the trial court erred when it refused to permit amendment of the complaint. It stated: “There is no suggestion that the filing of this pleading could prejudice respondents nor is there any indication that the filing of the amended complaint would work an injustice.” Id. at 493.

 We are compelled to reach the same conclusion.”

The Fen Phen case gets curiouser and curiouser – Plaintiff’s lawyer Angela Ford purchased the William Gallion home with Plaintiff’s funds at foreclosure sale in Nicholasville – U.S. Attorney protests – Jessamine Circuit Judge Hunter Daugherty order to set aside the sale pending.

Wednesday, December 15th, 2010

Dec. 15, 2010

      LawReader has confirmed from records of the Master Commissioner of Jessamine County that the home of Fen Phen defendant William Gallion was recently sold at a judicial sale.  The Jessamine County Master Commissioner is Chris Stansbury.

     The auction price bid by Angela Ford in behalf of the Plaintiff’s in their civil action was $__________________.

     It is reported that the U.S. Attorney’s office protested the purchase with Plaintiff’s funds, as some of the recovered funds she is holding in trust, is from 14 Fen Phen plaintiffs whom she does not represent.

    A hearing was held before Jessamine Circuit Judge Hunter Daugherty  to consider the U.S. attorneys objections to the purchase.  Judge Daugherty is said to have set aside the sale, but his official order is pending.

    A recent check of the appeal status of the Fen Phen civil case from Boone  Circuit Court reveals that the civil appeal of Gallion has been argued before the court and a decision has been assigned out to a Judge to write the decision.  That anticipated ruling has been pending for almost two years.   That information is reported on the AOC web site

Court of Appeals Judge Kelly Thompson Calls For New Rule to Determine Filing Fee for Pauper Inmate Appeals . Calls for expansion of Appeal Time.

Wednesday, December 15th, 2010

 

By Judge Stan Billingsley (Ret.)  Dec. 15, 2010

    Some Circuit Judges have been using their discretion in determining the amount of a filing fee required of inmates in inmate pauper appeals.  This discretion has required a court order which  sometimes varied from $5.00 for some pauper inmate appeals, and up to $150 for others.

      In an interview with LawReader, Court of Appeals Clerk Sam Givens said that they have created a new AOC form for use in determining filing fees in such cases.

     The new standardized formula will require an evaluation of the last six months of deposits in an  inmate’s Canteen Account.  Then the filing fee applied will be 20% of the average account balance.

   This procedure, and the delay in Circuit Judges issuing fee orders in such matters, has worked to deny some appeals as the 10 day period in which such appeals had to be made was tolled by the  time the Circuit Judges order was delivered to the inmate.

    This new procedure will allow the fee to be determined upfront, and the delay will be eliminated.  This brings reason and fairness to the process.

   Court of Appeals Clerk Sam Givens said that Court of Appeals Kelly Thompson, from Bowling Green brought the issue before the court.  He reported that Judge Thompson has also asked the Civil and Criminal Rules Committees of the Supreme Court to consider expanding the time in which such appeals had to be filed from 10 to 30 days to be consistent with other appeal times.  The expansion of the appeal time period is under consideration by the Supreme Court.

CONTEMPORANEOUS OBJECTION RULE: The Danger of Relying on Blanket Objections

Tuesday, December 14th, 2010

By Judge Stan Billingsley (Ret.) 

Dec. 2010

Banks v. Commonwealth Of Ky. (Ky., 2010)  (No citation available)  (Note difference between an objection raised during opening statement and during the trial.)

The Commonwealth introduced evidence that Appellant’s children were found hungry and that their home was in disarray, with animal excrement and urine throughout, and marijuana and drug paraphernalia in the living room. Appellant did not object to this evidence, but had unsuccessfully objected to discussion of it in opening statement.

        Appellant’s objection to the Commonwealth’s discussion of the poor living conditions in opening statement was inadequate to preserve any error with regard to admission of such evidence. Without delving into the precise requirements of the contemporaneous objection rule, it suffices to say that to preserve an evidentiary error, a party must object to the admission of evidence. See RCr 9.22. Opening statements are not evidence, Morgan v. Commonwealth, 189 S.W.3d 99, 114 (Ky. 2006), and thus an objection thereupon fails to preserve an evidentiary error.

        This result is clear in light of the broader latitude afforded to parties in their discussion of the evidence during opening statement. Id. A court may properly permit discussion, offered on a good faith basis in opening, of evidence that is ultimately inadmissible. See Freeman v. Commonwealth, 425 S.W.2d 575, 578 (Ky. 1967) (“Counsel has the right to direct the attention of the jury to all facts and circumstances that he in good faith believes will be allowed to develop in the evidence.”). Consequently, the overruling of an objection made during opening is not necessarily dispositive of the admissibility of the same subject matter in the form of evidence. To give the trial court an adequate basis for evaluating its admissibility, therefore, a party must object to the admission of evidence at the time it is presented.2

        Due to Appellant’s failure to properly preserve this matter, it is reviewed solely for palpable error. For an error to be palpable, and thus reversible, it must result in a manifest injustice. Martin v. Commonwealth, 207 S.W.3d 1, 3

Lanham v. Com., 171 S.W.3d 14 (KY, 2005)

    The Commonwealth claims that Appellant did not preserve this issue because he did not object to the unedited tape during trial. Appellant cites to Tucker v. Commonwealth,2 where we held:

        While this Court has approved the use of motion in limine as a means of obtaining pretrial rulings concerning the admission and exclusion of evidence, we have not repealed the contemporaneous objection rule.

One claiming error may not rely on a broad ruling and thereafter fail to object specifically to the matter complained of. When trial counsel is aware of an issue and fails to request appropriate relief on a timely basis, the matter will not be considered plain error for reversal on appeal.3

        Despite the fact that KRE 103(d), which was in effect at the time Tucker was rendered, states that a “motion in limine resolved by order of record is sufficient to preserve error for appellate review,” our decisions have increasingly read Tucker, which did not cite the recently enacted KRE 103(d), in an expansive manner.4

        This expansive reading of Tucker has come under increasing criticism.5 Such criticism is not a sufficient reason for us to overrule a nearly decade old case. However, Tucker also conflicts with some of our other cases that have held that a motion in limine overruled by an order of record is sufficient under KRE 103(d) to preserve an error.6 These cases have all been rendered since the enactment of the rules of evidence, unlike the cases upon which Tucker is based. Also, as Tucker’s critics have pointed out, and as a quick perusal of the rule reveals, Tucker and its progeny have exceeded the express language of KRE 103(d). As such, there is a clear conflict between some of our decisions and the express language of the rule and among our own cases since the introduction of the rule. This conflict has, no doubt, confused the bar and merits our reconsideration to remedy the inconsistency in our law.

        Though Tucker is correct in that we have not repealed the contemporaneous objection rule, it is clear from the language of KRE 103(d) that the rule has, in effect, been modified. Also, as observed in The Study Committee Notes to the Kentucky Rules of Evidence, also known as the Commentary, KRE 103(d) “eliminates [the] doubt [as to whether an error has been preserved by a motion in limine] by providing that motions in limine resolved by order of record are sufficient to preserve errors for appellate review.”7 While the Commentary is not binding on this Court, it is useful in interpreting the rules.8 More importantly, however, we cannot ignore the plain language of the rule.9 Thus, we resolve the conflict in our case law in favor of the plain language, and to the extent that Tucker and its progeny may contradict the plain language of the rule, they are overruled.

        This is not to say, however, that a blanket motion in limine is sufficient to preserve an error for appellate review. As Tucker correctly observed:

        An objection made prior to trial will not be treated in the appellate court as raising any question for review which is not strictly within the scope of the objection as made, both as to the matter objected to and as to the grounds of the objection. It must appear that the question was fairly brought to the attention of the trial court. . . . One claiming error may not rely on a broad ruling and thereafter fail to object specifically to the matter complained of.10

        Our other cases have similarly limited KRE 103(d). For example, in Davis v. Commonwealth,11 we noted that a motion in limine challenging “the presentation of any evidence supporting the Commonwealth’s theory of the case without specifying any other reason why a particular fact should be suppressed”12 was insufficient to preserve objection to the introduction of specific items of evidence because they were not addressed by the broad objection embodied by the motion in limine. We noted, in what amounts to an extension and clarification of the rule in Tucker, that:

        Usually, a motion in limine requests an advance ruling on a specific evidentiary fact, not a theory of the case requiring proof by multiple facts. Where a party specifies what evidence should be suppressed and why, the question has been “fairly brought to the attention of the trial court” and the trial court’s ruling preserves the issue for appeal. In that scenario, the opponent of the evidence need not object when the same evidence is offered at trial. However, the same principle does not apply to broad, generic objections.13

        More recently, in Metcalf v. Commonwealth,14 we held that a specific motion in limine properly preserves an issue for appeal and we explained the intersection of Davis and Tucker:

        As explained in Davis v. Commonwealth, 147 S.W.3d 709, 722-23 (Ky.2004), Tucker applies when the motion in limine is directed at a general area of inquiry, sometimes referred to as a “class of evidence,” Robert G. Lawson, The Kentucky Evidence Law Handbook, § 1.10[3][f], at 36 (4th ed. LexisNexis 2003), not a particular evidentiary fact. Appellant’s motion in limine and the trial court’s rulings thereon covered testimony regarding particular evidentiary facts and thus properly preserved all three of these issues for appellate review.15

        Some commentators have noted that such a limited reading of KRE 103(d) contradicts KRE 103(a)(1)’s allowance of general objections as sufficient to preserve an error for appeal.16 Such a reading, however, is supported by the Commentary:

        It should be noted a motion in limine would not be sufficient to preserve errors for appellate review unless it provided the trial court with the type of information which would be required to preserve errors at trial (i.e., information sufficient to satisfy the requirements of subdivision (a) — the specific ground for the objection being made and the substance of any evidence being offered).17

        This is because of the nature of a motion in limine: it is primarily a pretrial tool aimed, in essence, at “heading off at the pass” the introduction of evidence. KRE 103(a)(1) allows a general contemporaneous objection during trial to preserve an error for review because it is usually clear from the context what the grounds for the objection are (and if they are not, the rule provides that the trial judge can ask for grounds).

But motions in limine cannot function in this manner because they are not contemporaneous with the introduction of the evidence that they are aimed at. If motions in limine are not required to be specific, then KRE 103(d) could be turned into a catch-all, allowing the preservation of all manner of errors through the artful use of vague, broad motions in limine. This is clearly not what was intended by the rule.

 Thus, we reaffirm the portion of Tucker, as extended by Davis and Metcalf, that requires a motion in limine to specify the evidence objected to in order to preserve an error for appeal.

KRE 103 Rulings on evidence

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

(1) Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Motions in limine. A party may move the court for a ruling in advance of trial on the admission or exclusion of evidence. The court may rule on such a motion in advance of trial or may defer a decision on admissibility until the evidence is offered at trial. A motion in limine resolved by order of record is sufficient to preserve error for appellate review. Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine.

(e) Palpable error. A palpable error in applying the Kentucky Rules of Evidence which affects the substantial rights of a party may be considered by a trial court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

Effective: May 1, 2007

Attorney General Stops Waiver of DNA Testing Rights in Federal Plea Deals

Sunday, December 5th, 2010

Dec. 4, 2010   excerpt from New York Times

The value of DNA testing to clear the unjustly convicted is well known. That did not stop the Bush administration from bullying defendants who pleaded guilty to waive their right to seek such testing. Attorney General Eric Holder made the right choice last week, ordering the Justice Department to drop this policy.

In 2004, over the vigorous objection of the Bush Justice Department, Congress passed the Innocence Protection Act, intended to ensure that inmates challenging their convictions had access to DNA testing. Language added to the measure at Republican insistence also allows defendants to waive their right to DNA testing. The Republicans argued that would cut down on frivolous requests for testing and court challenges.

The full significance of the waiver provision emerged only last year. The Washington Post reported that soon after the law passed, the Bush Justice Department sent a memo to the nation’s 94 United States attorneys directing prosecutors to insist that defendants pleading guilty as part of a plea bargain relinquish their right to DNA testing even if new evidence emerged.

This not only ignored the problem of false confessions, it cynically gutted the intent of the 2004 law.

The fact is that innocent people sometimes plead guilty because of coercive interrogations or — in the case of plea bargains — to avoid a likely conviction at trial and a far tougher sentence. Peter Neufeld, co-director of the Innocence Project, says that 19 of the 261 people exonerated so far through DNA testing had pleaded guilty to crimes they did not commit.