Archive for March, 2011

HAVE WE RETURNED TO RIGID CODE PLEADING? Judge Kelly Thompson’s dissent rings like a bell calling for the Supreme Court to Prevent CR 77.02 from mandating dismissal of civil claims

Wednesday, March 30th, 2011

 

By LawReader Senior Editor Stan Billingsley                       March 29, 2011

 

  When this author was in law school, some 40 years ago, we heard many stories about the old Code Pleading Rules  and how the new rules of procedure were designed to cut out many highly technical rules that made criminal and civil rules minefields designed more to entrap litigants and their attorneys then to assure a fair trial for litigants.

   We seem to recall a prior version of the Civil Rules which said something to the effect that the most important rule was to “do justice”.  That Rule is no longer included in the Civil or Criminal Rules…why we don’t know.

We find remnants of that prior policy in the current Criminal Rules:

 

“A. Introduction

1. Derivation and scope
“…many improvements universally desired had been unattainable because of rigid requirements of a practice designed more to implement technical concepts than to promote the interests of justice.

   In a recent case (NO. 2009-CA-000895-MR cited in full below) the Court of Appeals upheld a dismissal of a case on highly technical grounds.  We note that the litigant was severely punished due to the negligence of his attorney.

We don’t argue with the authority or legal correctness of the majority’s decision, but we would suggest that a greater rule should be applied, that is the job of the court’s to “promote the interests of justice.” 

Judge Thompson’s dissent appears to be a call to the Ky. Supreme Court to change the application of CR 77.02 to elevate the “interests of justice” over the rigid  technical application the majority found was applicable.

The majority reasoned:

( counsel)… failed) to notify the circuit court that he had changed his mailing address and, as a result, his failure to receive the court’s sua sponte notice to show cause why the action should … be dismissed for lack of prosecution pursuant to CR 77.02(2),”  

 

   Civil Rule 77.02 is the rule judges use annually to clean up their dockets of inactive cases. The plaintiff’s attorney says he didn’t receive his copy of a notice from the court due to his address having changed and the letter was not forwarded to him.  When he tried to refile the case the trial court held that the Statute of Limitations was tolled.  The Court of Appeals upheld the trial court.

 

Judge Kelly Thompson dissented from this decision.

“…CR 77.02(2) dismissals result in the deprivation of the litigant’s right to be heard on the merits and because of the applicable statute of limitations, the right to file a second complaint is frequently illusory.”

 

“The passage of time alone should not be the sole factor when deciding to terminate a litigant’s right to seek redress in the courts. Rather than imposing such a harsh result on the litigant, it would be more appropriate to sanction the attorney.

 

For the reasons expressed, I would reverse the circuit court’s order and remand the case for further proceedings so that this litigant can receive the justice to which he is entitled.”

  Judge Thompson’s dissent in effect proves the truth of the statement in the Criminal Rules that  “rigid requirements of  practice … (rules are) designed more to implement technical concepts than to promote the interests of justice.”

    We respectfully suggest to our Appellate courts that there should be more concern for the consumers of legal services.  If the attorney made an error, we suggest like Judge Thompson that he should be punished appropriately, but the harsh penalty of a dismissal on technical grounds cases a potential harm to the original plaintiff that paints a picture of the courts not being focused on seeing that the “right thing be done”.

*********************************************************************

RENDERED: MARCH 18, 2011; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2009-CA-000895-MR

LARRY HONEYCUTT APPELLANT

APPEAL FROM PULASKI CIRCUIT COURT

v. HONORABLE DAVID A. TAPP, JUDGE

ACTION NO. 07-CI-00458

NORFOLK SOUTHERN RAILWAY COMPANY APPELLEE

OPINION

AFFIRMING

** ** ** ** **

BEFORE: TAYLOR, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES.

MOORE, JUDGE: Larry Honeycutt appeals an order of the Pulaski Circuit Court

dismissing his complaint pursuant to Kentucky Civil Rule (CR) 77.02(2) for claims

arising under the Federal Liabilities Act, 45 U.S.C. §51, et seq.; the Locomotive

Inspection Act, 49 U.S.C. §20707, et seq.; and the Federal Rail Safety Act of 1970,

49 U.S.C. §20101, et seq.

The complaint alleged that while in Norfolk Southern Railway Company’s employ, Honeycutt sustained injuries to his neck, shoulder, and back. The issue presented is whether counsel’s failure to notify the circuit court that he had changed his mailing address and, as a result, his failure to receive the court’s sua sponte notice to show cause why the action should not be dismissed for lack of prosecution pursuant to CR 77.02(2), warranted that the order dismissing be set aside pursuant to CR 60.02.

Concluding that the trial court did not abuse its discretion in dismissing Honeycutt’s complaint, we affirm.

Honeycutt filed his complaint in Pulaski Circuit Court on April 2,

2007. The complaint was signed only by attorney Mark T. Wade, who is licensed

to practice law in Kentucky and Pennsylvania. Attorney Wade listed his mailing

address on the complaint as 521 Cedar Way, Suite 200, Oakmont Station, Building

5, Oakmont, Pennsylvania. No other attorneys or addresses were listed or noted on

the complaint, and no other attorneys entered an appearance on behalf of

Honeycutt. We note that at no time did Attorney Wade ever move the court to

withdraw as counsel.

Within a month of the filing of the complaint, Norfolk Southern filed

an answer and motion to dismiss on April 24, 2007. The only attorney listed as

counsel for Honeycutt on Norfolk Southern’s certificate of service was Wade, at

his Oakmont address. Presumably, either Wade received the answer and motion to

dismiss at his Oakmont address; or if he had moved his office within a month of

filing the complaint on Honeycutt’s behalf, his mail was forwarded by United

States Postal Service to his new address.

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The case was dormant after Norfolk Southern filed its answer and

motion to dismiss, with over a year elapsing without any pretrial steps taken in the

action. Then, on August 5, 2008, the trial court filed a notice to show cause why

the action should not be dismissed for lack of prosecution. The notice was mailed

to Wade at the address he listed on the complaint, which was the only address the

court had for him.

However, at some point Wade had relocated to Pittsburgh, Pennsylvania. Apparently by this time the mail forwarding with the United States Postal Service had expired; consequently, the notice was returned to the circuit court clerk stamped: “Return to Sender,” “Not Deliverable as Addressed,” and “Unable to Forward.”

When no one appeared on behalf of Honeycutt at the hearing, an order

dismissing for lack of prosecution was rendered on September 26, 2008. The order

was also mailed to Wade at his Oakmont office, which was also returned to the

court clerk.

Nearly six months later, Wade filed a motion on behalf of Honeycutt

to set aside the September 26, 2008, order citing as grounds that: (1) he did not

receive actual notice of motion to dismiss and resultant order and, therefore, the

order was void; (2) the order was the result of mistake, inadvertence and/or

excusable neglect and should have been set aside pursuant to CR 60.02(a); and (3)

that CR 60.02(f) justified relief based on the extraordinary circumstances of the

case.

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At the hearing on the motion to set aside the order, Wade explained

that prior to filing the complaint, an Alabama attorney represented Honeycutt and

had engaged Norfolk Southern in settlement negotiations. Subsequently, the

Alabama attorney requested that Wade negotiate on behalf of Honeycutt. Wade

did so and sent a settlement package to Norfolk Southern’s claims agent. The

attempt at settlement failed, and accordingly Wade filed the complaint on behalf of

Honeycutt.

According to Wade after the complaint was filed, Norfolk Southern’s

claims agent ceased settlement negotiations and insisted that Norfolk Southern deal

exclusively with the Alabama attorney. Wade maintained that he and the Alabama

attorney then had a miscommunication, each believing that the other was

representing Honeycutt. However, the Alabama attorney did not sign the

complaint nor enter an appearance on Honeycutt’s behalf at any point in this

litigation; Wade did. Additionally, Wade took no action to correct any confusion

regarding who was handling Honeycutt’s case despite the fact that Norfolk

Southern’s answer and motion to dismiss, filed within a month of the complaint,

listed him alone as counsel for Honeycutt. And, Wade took no steps to withdraw

as counsel.

In ruling on Honeycutt’s motion, the circuit court found that the tenday

limitation contained in CR 59.05 precluded relief under that rule.

Consequently, if relief was available, it must be pursuant to CR 60.02, specifically

subsection (a) or (f). The court rejected relief based on CR 60.02(a) and the

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contention that the order was entered as result of mistake, surprise, or excusable

neglect and, therefore, focused on the remaining subsection, CR 60.02(f). Finding

that there was no “extraordinary reason” to justify relief, it denied relief. Finally,

relying on an unpublished opinion by this Court, Coleman v. El-Mallakh, 2008 WL

899805 (Ky.App. April 4, 2008),1 the circuit court found that actual notice was not

required under CR 77.02(2) and that the order was not otherwise void. Based on

our review, the trial court did not abuse its discretion in its ruling.

Honeycutt’s initial contention is that the order of dismissal is void

because he did not actually receive the notice to show cause as required by CR

77.02(2), which provides:

At least once each year trial courts shall review all

pending actions on their dockets. Notice shall be given

to each attorney of record of every case in which no

pretrial step has been taken within the last year, that the

case will be dismissed in thirty days for want of

prosecution except for good cause shown. The court

shall enter an order dismissing without prejudice each

case in which no answer or an insufficient answer to the

notice is made.

This is a housekeeping rule, within the wide discretion of the trial court, intended

to expedite the removal of stale cases from the court’s docket. Hertz Commercial

Leasing Corporation v. Joseph, 641 S.W.2d 753 (Ky.App. 1982).

As noted supra, the trial court relied on an unpublished opinion,

Coleman v. El-Mallakh, 2008 WL 899805, which we find to be persuasive

1 The circuit court properly cited to and relied upon Coleman, an unpublished case, pursuant to

CR 76.28(4).

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authority in this case and proper to cite as it fulfills the criteria of CR 76.28(4). In

Coleman at *3, this Court held that where a statute requires actual notice to be received by a party, it is then incumbent upon the party whose duty it is to give that notice to

see that the notice is actually received by the party entitled to notice.

We do not believe that the language in CR 77.02(2) can be construed

to require that actual notice be received by each attorney of record

before the court may proceed with dismissing a case for want of

prosecution.

Clearly, the method contemplated for service of the notice is the same

as that required for the service of the order dismissing a case under the

rule, that being service shall be made by mail in the manner provided

in CR 5. CR 77.04(1). Specifically, CR 5.02 provides for service

upon the attorney of record by mailing a copy of the notice to the

attorney at his last known address and that service by mail is complete

upon mailing.

(Citations omitted).

In Coleman, we pointed out that because hundreds of cases are

disposed under this rule each year, it is simply not feasible to place the onerous

burden on our circuit clerks to personally ensure that every attorney of record

receive actual notice that the case may be dismissed for lack of prosecution absent

a showing of good cause. We agree with the language in Coleman stating that “we

know of no authority in Kentucky that would impose a duty upon circuit clerks to

track down attorneys who have moved their offices without giving notice to the

court in order for the court to satisfy the notice provision of CR 77.02(2).” Id., at

*4.

We further agree with the trial court that the circumstances of this

case do not fulfill CR 60.02(a)’s requirement of mistake, inadvertence, surprise or

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neglect. If there was inadvertence, it was not at the hands of the court. And,

Honeycutt’s rationale for setting aside the judgment does not fall into the category

of an “extraordinary reason” to justify relief under CR 60.02(f). “[T]he conduct of

an attorney is generally not a ground for relief under CR 60.02 (f).” Id. at *5

(citing Vanhook v. Stanford-Lincoln Co. Rescue Squad, Inc., 678 S.W.2d 797

(Ky.App. 1984); Brozowski v. Johnson, 179 S.W.3d 261 (Ky.App. 2005)). As in

Coleman, the result is harsh for the appellant. But, as this Court stated in Coleman

at *5, “we can find no authority that holds a harsh result constitutes an

extraordinary reason to justify relief under CR 60.02.” Accordingly, we affirm.

TAYLOR, CHIEF JUDGE, CONCURS.

THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

THOMPSON, JUDGE, DISSENTING:

Respectfully, I dissent. I believe that the majority’s strict enforcement of a technical rule usurps the public policy that the court is to decide cases on their merits with a fair opportunity for the litigants to be heard.

I disagree that the unpublished case, Coleman v. El-Mallakh, 2008

WL 899805 (Ky.App. 2008), is persuasive.

To the extent that the case stands for the proposition that our court clerks cannot personally ensure that every attorney of record receives actual notice of a CR 77.02(2) dismissal hearing, I agree. However, in Coleman, the motion was presented pursuant to CR 60.02(f) and filed more than one year after the judgment. The Court emphasized the case may have

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been resolved differently “under CR 60.02(a) had the matter been brought to the

circuit court’s attention within one year of entry of the order of dismissal.” Id. at 5.

In contrast, Honeycutt filed his CR 60.02 motion within one year after

the order of dismissal without prejudice was entered and, therefore, was timely

under CR 60.02(a). Although the Court set aside a default judgment rather than a

CR 77.02 order, I believe Bargo v. Lewis, 305 S.W.2d 757 (Ky. 1957), is

controlling. In Bargo, a Lexington attorney requested a Barbourville attorney to

secure an extension of time to answer a complaint. After the Barbourville attorney

mistakenly failed to file an answer, a default judgment was entered. The Court

held that the default judgment was properly set aside under CR. 60.02(a) on the

basis of inadvertence or excusable neglect. Id. at 758. Under the circumstances

now presented, I believe justice requires the same result.

I also believe that this case presents an opportunity to establish a

reasonable and just standard when CR 77.02(2) is invoked.

Although CR 77.02(2) is a dismissal without prejudice that theoretically permits the complaint to be refiled, minimally, a year has elapsed since the first complaint was filed and most probably the statute of limitations has expired. Therefore, a dismissal without

prejudice has the identical consequences as a dismissal with prejudice pursuant to

CR 41.02.

Our Supreme Court has reexamined the applicable standard when

determining whether to dismiss for lack of prosecution pursuant to CR 41.02. In

Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009), the Court held that the trial court

-8-

is required to consider all relevant factors which may include those listed in Ward

v. Housman, 809 S.W.2d 717 (Ky.App. 1991). Id. at 34.

Trial courts must make explicit findings on the record so that the parties and appellate courts will be properly apprised of the basis for the trial court’s rulings; and the appellate courts can assess whether the trial court properly considered the totality of the circumstances in dismissing the case. Id. at 36.

I am aware that in Jaroszewski, the Court noted a distinction between

CR 41.02 dismissals and CR 77.02(2) dismissals; specifically, that the latter is a

dismissal without prejudice. I reiterate that while a legally correct distinction, as a

practical matter, CR 77.02(2) dismissals result in the deprivation of the litigant’s

right to be heard on the merits and because of the applicable statute of limitations, the right to file a second complaint is frequently illusory.

I am perplexed that a CR 41.02 dismissal is subject to a totality of the

circumstances standard but that a CR 77.02(2) dismissal is not subject to the same standard. I

ndeed, a complex case such as the current often sits idle for a year as a

result of negotiations and preliminary investigations; yet, the case can be dismissed

to serve the purpose of managing the court’s docket.

Although the courts certainly have such power inherently and by virtue of CR 77.02(2), this power must be secondary to the primary purpose of our judicial system to provide meaningful dispute resolution on the merits. Therefore, I urge our Supreme Court to espouse standards applicable to CR 77.02(2) dismissals similar to those applied to CR 41.02 dismissals.

-9-

In this case, the circuit court abused its discretion when it refused to

set aside the CR 77.02(2) motion.

Although the attorney failed to notify the court that he changed his address, after learning of the dismissal, he promptly filed a CR 60.02 motion. There was absolutely no evidence that Norfolk Southern was prejudiced by the inactivity in the case, no evidence as to the reason for the inactivity, the merits of the claim, or any other circumstances that would justify the dismissal of this complex litigation.

The passage of time alone should not be the sole factor when deciding to terminate a litigant’s right to seek redress in the courts. Rather than imposing such a harsh result on the litigant, it would be more appropriate to sanction the attorney.

For the reasons expressed, I would reverse the circuit court’s order and remand the case for further proceedings so that this litigant can receive the justice to which he is entitled.

BRIEF AND ORAL ARGUMENT

FOR APPELLANT:

Mark T. Wade

Pittsburgh, Pennsylvania

BRIEF FOR APPELLEE:

Kathiejane Oehler

Justin S. Gilfert

Louisville, Kentucky

ORAL ARGUMENT FOR

APPELLEE:

Kathiejane Oehler

Louisville, Kentucky

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McCollum v. Garrett, 880 S.W.2d 530 (Ky., 1994)

CR 8.06 requires that “All pleadings shall be so construed as to do substantial justice.” This rule, sometimes called a “liberal construction” rule, requires that a pleading be judged according to its substance rather than its label or form. To construe this pleading as a claim against the defendants in their official capacity would result in the claim being barred. To construe it as an individual capacity claim permits the litigation to proceed toward the merits, a goal we have expressly embraced in other contexts. Ready v. Jamison, Ky., 705 S.W.2d 479 (1986), Crossley v. Anheuser-Busch, Inc., Ky., 747 S.W.2d 600 (1988

On March 24, 2011 the Kentucky Supreme Court Presented a Vigorous Argument

Tuesday, March 29th, 2011

 

Justice Wil Schroder wrote a compelling dissent in favor of limiting the powers of the Chief Justice.  The dissent  was responded to by Justice Noble and Justice Abramson.  This case provides a rare look behind the curtains of our state’s highest court.

 NANCE v. KENTUCKY ADMINISTRATIVE OFFICE OF THE COURTS

HON. WILLIAM MITCHELL NANCE, CIRCUIT COURT JUDGE, 43rd JUDICIAL CIRCUIT, DIVISION TWO (FAMILY COURT), COMMONWEALTH OF KENTUCKY, PETITIONER,

v.

KENTUCKY ADMINISTRATIVE OFFICE OF THE COURTS, RESPONDENT.

No. 2010-SC-000202-OA.

Supreme Court of Kentucky.

March 24, 2011.

Robert Lee Abell, PO Box 983, Lexington, Kentucky 40588-0983, Counsel for Petitioner.

James E. Keller, Elizabeth Snow Hughes, Huston Barrow Combs, Gess, Mattingly & Atchison, PSC, 201, West Short Street, Lexington, Kentucky 40507-1269, Cindra Kay Walker, Administrative Office of the Courts, 100, Millcreek Park, Frankfort, Kentucky 40601, Laurie Rachael Kidd, Director, Administrative Office of the Courts, 100, Millcreek Park, Frankfort, Kentucky 40601. Counsel for Respondent.


OPINION OF THE COURT BY JUSTICE NOBLE.

This action arises from a petition filed by Judge William Nance, pursuant to CR 76.36, for a writ enjoining the Administrative Office of the Courts (AOC) to “cease and desist” from unlawful interference with his powers as “appointing authority” for the employees in his office as a circuit family court judge. In March of 2009, the employment of Sharon Travis, the Family Court Administrator for the 43rd Judicial Circuit, where Judge Nance presides, was terminated after an internal investigation reported that the Administrator created “an atmosphere of fear” and violated confidentiality rules. Judge Nance further asks, as ancillary to his appointing authority, that the Administrator be reinstated.

After careful deliberation, this Court finds that there is no basis for the writ, but acknowledges that this is the proper forum to decide the question. Though Judge Nance seeks reinstatement of the Administrator, among other things, this is not an appeal of a personnel decision. At the heart of this matter is the question of whether the Chief Justice can terminate the employment of an employee working in a circuit judge’s office, and if he has the authority, can it be delegated? Such disputes are properly brought in this Court. See Jones v. Commonwealth, Administrative Office of the Courts, 171 S.W.3d 53, 55 (Ky. 2005).

Judge Nance begins by asserting that as the elected official in whose office the Administrator works, he is the sole appointing authority. As the appointing authority, he asserts that he not only hires the employee, he also is the official with the authority to fire that employee. There is support for his position in the AOC Personnel Policies, which must be approved by the Supreme Court pursuant to SCR 1.050(2). In the Policies, at Section 1.03(1), there appears to be a clear delineation between the Director of AOC as an appointing authority “for personnel at the Administrative Office of the Courts” and the elected official “for the personnel in his or her office.” However, the policy does not address the termination authority of the Chief Justice.

The Kentucky Constitution, at Section 110(5)(b), states that the Chief Justice is the “executive head” of the Court of Justice and has the specific ability to “appoint such administrative assistants as he deems necessary.” Further the Chief Justice must submit the budget for the Court of Justice, which contains the financial request for the salaries of any positions within the Court of Justice. He is given the authority to manage the day-to-day aspects of the Court and its administration. This authority is balanced by the “power to prescribe rules. . . for the appointment of commissioners and other court personnel” in the Court of Justice, which is given to the Supreme Court as a whole in Section 116 of the Kentucky Constitution.

Historically, at least since the beginning of the Court of Justice’s present incarnation, following the Judicial Article of 1975 creating the unified four-tier court system and a statewide administrative office to assist the courts, the Supreme Court has enacted Supreme Court Rules which give deference to the Chief Justice to act in his discretion on most day-to-day matters of court administration. Further, the Supreme Court has approved personnel policies for Court of Justice employees, which specify that non-tenured employees “serve at the pleasure” of the appointing authority.

The AOC Personnel Policy specifically at issue here, Section 1.03(1), says that the elected official is the appointing authority for employees in his or her office. This personnel policy has been duly approved by the Supreme Court, and sets forth policy in making local employment decisions: the elected official should decide who works directly with him or her on a daily basis. This includes choosing the person to be hired, and firing whoever does not work out successfully. This is a sound policy for many reasons: the Chief Justice cannot reasonably travel the state to all 120 counties with elected judicial officials to handle local employment decisions; the cost would be exorbitant; and in the long run, the elected officials and employees would possibly be incompatible.

Nonetheless, Section 110 of the Kentucky Constitution makes the Chief Justice the Chief Executive Officer of the Court of Justice. As such, he has participated in creating various employment positions, has approved the job descriptions, and has asked the legislature for the money to fund them, including the Administrator’s position in the 43rd Judicial Circuit. Additionally, as Chief Executive Officer, he must oversee the employment of Court of Justice personnel, even those in local offices, and act when a local official refuses to act, if it is in the best interests of the Court of Justice.

In this case, the Court Administrator at issue had been the subject of a complaint made to the AOC Personnel Department during an exit interview of another employee. This complaint led to an investigation by an outside, neutral attorney. In her report, the investigator found that the Court Administrator had violated confidentiality principles relating to confidential matters and had created a hostile work environment, or “an atmosphere of fear.” Recommendations regarding her future employment were made, which were presented to the local official who refused to follow the recommendations and terminate her employment. No formal complaint was initiated under the Court of Justice harassment policy.

At that point, the Director of AOC entered the dispute. KRS 27A.020(1) provides that the Chief Justice may delegate administrative services for the Court of Justice and the supervision of clerical and administrative personnel to the AOC Director. While this statute may raise questions regarding separation of powers, this Court has long given it comity in most instances. Certainly, in this instance, it allows no more than the authority the Chief Justice, as the executive head of the Court of Justice, already has. In any administrative capacity, some functions may or must be delegated, particularly when the executive heads a separate branch of government with employees numbering in the thousands. In fact, for example, the Supreme Court has approved the policy that the Director has “responsibility for the implementation of the Court of Justice Equal Employment Opportunity Policy.” AOC Personnel Policies, Section 3.01(2).

However, in an independent capacity, it is not the Director of AOC who has termination authority for Court of Justice Employees. There is no grant of authority to the AOC Director beyond that which is delegated to him by the Chief Justice, or by the Supreme Court in its rule-making capacity.

Acting on the impartial report, former AOC Director Jason Nemes first asked Judge Nance to discharge the Administrator. Judge Nance had refused to participate in the investigation, and refused to discharge her when asked to do so.

At this point, three written communications become important to the analysis of this case. In a letter dated March 26, 2009, then-Director Jason Nemes wrote the Administrator to terminate her employment. The letter specifically states that “pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 27A.020(1), I am hereby terminating you as Family Court Administrator for the Barren Family Court.” Later in the letter he said, “I have concluded that your actions may place Judge Nance and the Court of Justice at risk for personal and professional liability.” Facially, it can be argued that the use of the personal pronoun “I” makes this termination an act taken by the Director standing alone.

However, this letter also refers to the Chief Justice by reference to Section 110, and to a delegation to the Director pursuant to KRS 27A.020. This is a recognition that the Chief Justice, as the executive head of the Court of Justice, is a superior officer to the Director. And while the statute sets forth things that the Chief Justice may delegate to the Director of AOC, even though termination authority is not listed, it is clearly within the executive powers of the Chief Justice to make such a delegation within the Court of Justice. The statute does not empower the Chief Justice, as his authority comes from the Constitution. Likewise it cannot limit that authority for the same reason. Instead, the statute primarily shows that the legislature understands and approves the fact that a busy Chief Justice heading the third branch of government may need to delegate some functions over which he retains executive control.

To that end, the two subsequent written communications in the record establish that the Chief Justice was aware of the situation and approved the actions taken by the Director. In a letter to Judge Nance dated April 10, 2009, Chief Justice John Minton stated that he had delegated supervisory control to the Director, and that the Director had the authority to terminate the Administrator. In the second letter dated June 30, 2009, written after a meeting with Judge Nance in Frankfort, followed by a letter from the judge, Chief Justice Minton stated that after “further review of the facts of this case, the Kentucky Court of Justice Personnel Policies, and Kentucky statutes, I remain resolute in the conclusion that Ms. Travis’s termination was an appropriate and necessary measure.” In both letters, the Chief Justice referred to the investigative findings listing the conduct of the Administrator that led to her termination. These letters not only establish that the Chief Justice was aware of the problem, but that he also delegated the termination process to the Director. In the third letter, he unequivocally demonstrated his agreement with the action taken. The Chief Justice, at the very least, ratified the actions of the Director.

When Judge Nance declined to act in the best interests of the Court of Justice, the Chief Justice, as Chief Executive Officer of the Court of Justice, had to determine if action was necessary. At that point, there was no benefit from the Court of Justice policy allowing local officials to have appointment authority over employees working as the judge’s staff, but rather potential liability. As the executive head of the Court of Justice constrained to act in its best interest, Chief Justice Minton properly made the executive decision to terminate the Court Administrator in line with the authority given to him by Section 110 of the Kentucky Constitution.

Consequently, we hold that the power of local officials to appoint the personnel in their offices exists through policy of the Supreme Court. This policy in no way prevents the Chief Justice from acting as the executive head of the Court of Justice when those to whom any power is delegated are not acting in the best interests of the Court of Justice. Granting appointing authority to local officials for their office personnel is a policy that works generally in the best interest of the Court of Justice. When that grant of appointing authority is not properly executed by the local officials so that the grant is no longer in the best interest of the Court of Justice, then the Chief Justice must act, either directly or by proper delegation of his authority. That is exactly what Chief Justice Minton did here.

Consequently, there is no basis to grant a writ.

Since this Court is not granting the writ, there is no need to address the reinstatement of the Administrator, or whether any other Court of Justice policies were violated in her employment action, except to say that these questions cannot be raised on her behalf by Judge Nance.

For these reasons, Judge Nance is not entitled to the grant of a writ, and his petition is denied.

Abramson, Cunningham, Scott and Venters, JJ., concur. Abramson, J., also concurs by separate opinion. Schroder, J., dissents by separate opinion. Minton, C.J., not sitting.

ABRAMSON, J., CONCURRING.

I concur because the well-reasoned majority opinion is grounded in the Kentucky Constitution, specifically § 110(5)(b), which states in pertinent part: “The Chief Justice shall submit the budget for the Court of Justice (COJ) and perform all other necessary administrative functions” This particular provision controls disposition of the issue at hand, namely “when a COJ appointing authority refuses to terminate an employee whose conduct merits dismissal, who has the authority to act?”

The dissent counters that the full Supreme Court must take part in the employee’s dismissal, citing § 116 of the Kentucky Constitution, a provision that, in pertinent part, gives this Court authority to make “rules for the appointment of commissioners and other court personnel . . . .”

 Certainly, the Court has rule-making authority in this area and, indeed, it has exercised that authority by adopting personnel policies. But the Court has never adopted a policy that addresses the particular scenario of a local appointing authority unwilling to act when confronted with grounds for dismissal of a COJ employee. The dissent refuses to acknowledge this crucial fact and then suggests that the Chief Justice, in taking a personnel action deemed to be in the best interests of the Court of Justice and public, must be amending or overriding the Court’s personnel policies. Dissent at p. 17. He plainly did neither of those things. There is an interstice created by the absence of a controlling personnel policy and that interstice is properly filled by the Chief Justice exercising his power under § 110 to make a “necessary administrative” decision. Moreover, to suggest that the full Court must convene to decide the termination issue completely misperceives the fundamental difference between rule-making power and administration.

The Court could have adopted a personnel policy that addressed this scenario (and perhaps it will do so in the future) but having either declined to do so or failed to do so, the Chief Justice is not powerless to engage in necessary administrative acts, and he most certainly is not obligated to convene the full Court to address a personnel scenario which they failed to address or chose not to address in the first instance.

Oversight of the Court of Justice is a solemn and, indeed, awesome responsibility and a myriad of circumstances have arisen, and will arise, which have not been anticipated, requiring prompt action in the interest of the Court of Justice and the public we serve.

 We have elected a Chief Justice and have reposed confidence in him to act in those matters.

The dissent proposes a management-by-committee approach to Court administration in these circumstances which is not supported by the law and which has been rejected by the overwhelming majority of the Court — indeed, six of the seven sitting Justices since we may rightfully presume that our current Chief Justice acted with the same well-grounded understanding of the law as does the majority in this case.

 To state that in reaching our decision, the majority has “diminish[ed] respect for this Court and the rule of law,” id. at p. 19, and to suggest that only the lone dissenter has honored the Constitutional oath and declined to abdicate responsibilities, id. at p. 19, is entirely inappropriate.

SCHRODER, J., DISSENTING.

Rather than admit that the AOC Director improperly fired an appointee of an elected official (a sitting Family Court Judge), the majority redefines the issue, overlooks controlling precedent, and ignores our Supreme Court policies. Judge Nance is entitled to the writ because the legal remedy for terminating the employee has not been followed. Simply stated, the facts reflected by the record are:1

By letter dated March 26, 2009, the former AOC Director informed the court administrator of elected Family Court Judge William Nance, that he (the AOC Director) had concluded she should be terminated, and that he was terminating her effective March 27, 2009.2 Recognizing that the AOC Director had no authority to fire his employee, Judge Nance complained to the Chief Justice.3 Believing the AOC Director possessed such authority and that cause existed, the Chief Justice acquiesced in the AOC Director’s decision.4

Again, Judge Nance complained to the Chief Justice that the AOC Director did not have the authority to fire his employee. The Chief Justice responded that, on further review, he remained resolute with the AOC’s termination.5 Judge Nance thereafter petitioned this Court for a writ to enjoin the AOC Director from firing his court administrator.

THE AOC DIRECTOR CANNOT TERMINATE THE APPOINTEE OF AN ELECTED COURT OF JUSTICE OFFICAL

The AOC Director has no authority to hire or fire a non-AOC employee. AOC is a department within the Court of Justice. While all AOC employees are Court of Justice employees, not all Court of Justice employees are AOC employees (see organizational chart in appendix).6 Elected officials in the Court of Justice, and their staffs, are not AOC employees.7 These elected officials include justices, judges, and circuit/district court clerks.

Personnel policies and procedures for the Court of Justice, which includes elected officials and their staffs, and the AOC, are set by the Supreme Court. Ky. Const. § 116; SCR 1.050. This Court has established a policy that the elected official shall be the appointing authority8 for personnel in his or her office. Personnel Policies for the Kentucky Court ofJustice, § 1.03(1).9 The AOC Director’s appointing authority is limited to “personnel at the Administrative Office of the Courts.” Id. Therefore, as the majority agrees, the AOC Director has no independent authority to terminate the employee of an elected judge. Accordingly, under the facts in the record, Judge Nance is entitled to his writ.

But wait! Not wanting to grant the writ, the majority changes the facts and redefines the issue. After realizing the Director said “I” in the letter of termination, the majority spends the next two pages rationalizing that it was “really” done by the Chief Justice through his delegation of powers through KRS 27A.020 (but recognizing that said statute does not list termination authority), and redefines the issue as a firing by the Chief Justice.

THE CHIEF JUSTICE CANNOT DELEGATE POWERS WHICH HE DOES NOT HAVE

For argument’s sake, even if the firing was through delegation to the AOC Director by the Chief Justice, or ratified by the Chief Justice, Judge Nance would still be entitled to the writ because the Chief Justice cannot delegate powers that he does not have. The Chief Justice does not have the power to unilaterally terminate the appointee of an elected official.

Section 110 of the Kentucky Constitution creates the Supreme Court. The Supreme Court consists of a Chief Justice and six associate justices. Ky. Const. § 110(1). The Chief Justice is not the Supreme Court. Where the Constitution, statute, rule, or policy refers to the “Supreme Court,” this means the seven justices of the Supreme Court. Sections 110(2) (a) and 116 of the Kentucky Constitution vest control of, and rule-making power for, the Court of Justice in the Supreme Court.10 See, e.g., Abernathy v. Nicholson, 899 S.W.2d 85, 87-88 (Ky. 1995) (recognizing that Section 110(2)(a) grants the Supreme Court supervisory control over the Court of Justice, and that Section 116 vests rule-making power for the Court of Justice exclusively with the Supreme Court); Combs v. Huff, 858 S.W.2d 160, 162 (Ky. 1993) (“With the adoption of the Judicial Article and creation of a unified court system, this Court was granted rule-making power over matters affecting the Court of Justice.”); Kentucky Utilities Co. v. South East Coal Co., 836 S.W.2d 407, 408 (Ky. 1992) (“The authority to exercise administrative control of the judicial branch of government is vested in the Supreme Court of Kentucky.”); Smothers v. Lewis, 672 S.W.2d 62, 64 (Ky. 1984) (recognizing the Supreme Court’s rule making power is “firmly rooted within the Constitution”); Francis v. Taylor, 593 S.W.2d 514, 515 (Ky. 1980) (“The Supreme Court, in addition [to appellate jurisdiction], has the control (or supervision) of the entire Court of Justice.”); Ex parte Farley, 570 S.W.2d 617, 620 (Ky. 1978) (“[Section] 110 vests the supervisory and policy-making authority of the judicial department in the Supreme Court.”). Supreme Court Rule 1.020(1)(a) requires that “matters of policy or administration shall be decided by a concurrence of at least four of its members.” Orders of the Court are signed by the Chief Justice. SCR 1.020(1)(b).

Section 110(5) (a) of the Kentucky Constitution provides for the election of a Chief Justice by the members of the Court. Section 110(5)(b) provides that the Chief Justice shall be the “executive head” of the Court of Justice, and perform necessary administrative functions relating to the Court. The majority misconstrues the role of an “executive head” to be superior to the role of the Supreme Court, and would give the Chief Justice veto power over all Court of Justice personnel decisions. There is no basis in reason or in the law for this interpretation.

The Chief Justice, as the executive head of the Court of Justice, administers, or carries out, the policies of the Court of Justice, which are adopted by the Supreme Court. The Chief Justice has no independent policy or rule-making authority for the Court of Justice. Therefore, in performing his administrative functions, the Chief Justice is constrained by the policies and rules promulgated by the Supreme Court. “Though Const. § 110(5)(b) provides that the Chief Justice `shall be the executive head of the Court of Justice,’ there can be little doubt that § 110 vests the supervisory and policy-making authority of the judicial department in the Supreme Court.” Farley, 570 S.W.2d at 620.

“Section 110(5)(b) of the Constitution does not confer unbridled, absolute or unlimited power on the Chief Justice in his capacity as Chief Executive of the court system.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 683 (Ky. 1994). “The power of the Chief Justice is not absolute. It must be exercised under the authority granted by the constitution and is subject to review by the entire Supreme Court.” Id. at 684. Thus, in administrative matters, the Chief Justice is accountable to the entire Supreme Court for his actions. As this Court recognized in Kuprion, actions of the Chief Justice acting in an administrative capacity are reviewed under an abuse of discretion standard. Id. at 682-84.

Section 116 of the Kentucky Constitution specifically authorizes the Supreme Court (not the Chief Justice individually) to adopt policies and procedures for personnel matters for the Court of Justice. Under this constitutional authority, the Supreme Court established the policy that the elected official is the appointing authority for personnel in his or her office. Personnel Policies for the Kentucky Court of Justice, § 1.03(1). The Chief Justice is bound by this policy.

THE SUPREME COURT, NOT THE CHIEF JUSTICE, CAN TERMINATE THE NON-TENURED EMPLOYEE OF AN ELECTED COURT OF JUSTICE OFFICIAL

The Supreme Court has designated the elected official as the appointing authority for his or her office personnel. This means Judge Nance, the elected Family Court Judge, has the discretion and authority to both hire and dismiss his court administrator. The issue facing this Court is — how can a nontenured employee who engages in conduct which interferes with the operation of the Court of Justice (as alleged in this case) be removed, when the appointing judge refuses to act? While, for the reasons stated above, the Chief Justice individually does not have the authority to amend or override Court of Justice personnel policies,11 the Supreme Court does have said authority. Ky. Const. § 110(2)(a); Ky. Const. § 116.

 ”In addition to the Court’s Constitutional rule making power, the Court is also vested with certain `inherent’ powers to do that which is reasonably necessary for the administration of justice within the scope of their jurisdiction.” Smothers, 672 S.W.2d at 64.

Pursuant to Section 116 of the Kentucky Constitution and SCR 1.020(1)(a), termination of Judge Nance’s court administrator would require a vote of four justices.12

THE AOC DIRECTOR, CHIEF JUSTICE, AND THE COURT MAJORITY ARE NOT FOLLOWING SUPREME COURT PERSONNEL POLICIES

The letters from the Chief Justice to Judge Nance add another complication to the case. The letters indicate that the AOC Director terminated the employee for having violated Sections 2.02 (Confidential Information), 2.05 (Abuse of Position) and 3.02 (Workplace Harassment) of the Court of Justice personnel policies.13 The added complication is that Section 3.02 requires specific procedures to be followed for both tenured and non-tenured, elected and appointed, employees accused of workplace harassment, including review and findings by the Court of Justice Harassment Complaint Panel (COJ HCP). Personnel Policies for the Kentucky Court of Justice, § 3.02 (8) (a)-(e). The record before this Court does not indicate that these procedures were followed. The majority simply ignores the Court’s own harassment policy.

The majority also blatantly ignores, as evidenced by the letters in the record, the AOC’s and Chief Justice’s obvious misunderstanding of what constitutes “workplace harassment” or “hostile work environment” as those terms are used in a legal sense (per Kentucky’s Civil Rights Act, KRS Chapter 344, and Section 3.02 of the Personnel Policies for the Kentucky Court of Justice). Under Section 3.02, “unlawful workplace harassment” (hostile work environment) must be based on “race, color, religion, gender, national origin, age, disability, sexual orientation [or] political affiliation.”14 Personnel Policies for the Kentucky Court of Justice, § 3.02 (2) (a)-(b). Judge Nance points out in his petition that there was no allegation that his employee engaged in any such conduct. While an “atmosphere of fear,” if true, would be undesirable, I remind the majority that this does not constitute a “hostile work environment” in the legal sense, which is what Section 3.02 of our personnel policies encompasses. Accordingly, from the face of the limited record, termination under Section 3.02 appears improper.

Finally, whatever offense(s) the Court Administrator may or may not have committed, and any evidence thereof, are outside the record. Even if the majority believes the Chief Justice has the power to do so, how, without having seen the evidence, can the majority conclude the Chief Justice “properly” terminated the employee? The record before this Court contains no allegations of fact, no investigative report, nor any explanation of the conduct which constituted the alleged violations. How can this Court conduct a meaningful review without the evidence?

CONCLUSION

When the Supreme Court ignores its own rules, it can only diminish respect for this Court and the rule of law in this Commonwealth. I have taken an oath to uphold the Kentucky Constitution and will not abdicate my responsibilities and cede the Court’s power to the AOC Director or to the Chief Justice. As the facts and the law stand in this case, the writ should be granted and the matter remanded to the whole Court for further proceedings.

APPENDIX

Kentucky Court of Justice Organizational Structure

[Image in original not included.]

Organizational Chart, Kentucky Court of Justice, http://courts.ky.gov/researc

WHY DO POLICE DESTROY THE EVIDENCE IN DUI CASES?

Tuesday, March 29th, 2011

WHY DO POLICE DESTROY THE EVIDENCE IN DUI CASES?

When the police administer a breathalyzer, the suspect’s breath sample is analyzed — and then destroyed by purging it into the air. Although it is easy and inexpensive to save the sample so that it could later be independently analyzed by the defense, the U.S. Supreme Court in California v. Trombetta ruled that there is no right to this. (See “Why Do Police Destroy the Evidence in DUI Cases?”.)

Recognizing that an accused should have some minimal rights even in a DUI case, many states have enacted laws requiring the police to advise the suspect that he has the right to have an independent blood sample drawn so that it may be later analyzed and compared to the breath test results. California’s Vehicle Code Section 23614 is an example:

(a) ….a person who chooses to submit to a breath test shall be advised before or after the test that the breath testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later…

(b) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcohol content of the person’s blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample shall be collected and retained in the same manner as if the person had chosen a blood or urine test initially. [italics added]

Sounds fair. Except officers don’t like handling a suspect’s urine or spending an hour or so finding a blood technician to draw a sample. Result: this law is commonly ignored by the police. (Some DUI report forms contain a place for the officer to indicate that he advised the suspect of the right to an independent test, and it is commonly checked off — and ignored.)

So what can a defendant do if this legal right is violated? Well, the statute clearly says “shall” advise and collect: it is mandatory, not optional. It would seem to follow that there would be some legal sanction for a willful refusal to follow this law — the only meaningful one being suppression of the breath test.

Wrong. Remember: this is a DUI case we’re dealing with. If you look closely, another little provision at the end of California’s statute adds the following:

(d) No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcohol content of the blood of the person arrested.

Cute, no? The law gives you a “right”, and then makes it unenforceable. It is, as we lawyers say, “a right without a remedy”. And, of course, since there are no consequences for ignoring this advisement of the right to an independent test, most officers continue to ignore the law. Practically speaking, then, officers do not have to follow the law and advise the suspect of his right to an independent test.

There are some court decisions, however, which seem to say that interfering with attempts by the arrested person to have blood drawn may be grounds for suppression of the breath test. See, e.g., In re Martin, 58 Cal.2d 509. And many states will suppress breath test results if the police refuse to permit the suspect to obtain a blood sample. In State v. George, 754 P.2d 460, for example, the Kansas court ruled that breath results should have been suppressed where the arresting officer refused a suspect’s request for an independent test because of the time required to transport him to a hospital and find a physician.

Bottom line:  yes, you have an absolute legal right to a blood sample…except, well, you don’t. 

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PHILADELPHIA TO REVIEW ALL BREATHALYZER-DUI CASES FROM 15 MONTHS DUE TO MISCALIBRATION

Tuesday, March 29th, 2011

  Philadelphia, PA.  March 25 — A day after Philadelphia police announced that miscalibrated breathalyzers had compromised 1,147 drunken-driving cases, District Attorney Seth Williams  declared he would conduct a wholesale review of all DUI cases during the 15 months in question.

 Philadelphia police file 8,000 to 10,000 drunken-driving cases each year, so the review announced Thursday by Williams’ office will involve a staggering amount of work that will take months to complete. 

 Deputy District Attorney Edward McCann, chief of the Criminal Division, decided to launch the review, said Williams’ spokeswoman, Tasha Jamerson. Assistant District Attorney Lynn Nichols will lead a team of prosecutors and staff that will examine the cases from September 2009 to November 2010.

McCann is also implementing training on DUI cases for prosecutors that will emphasize recognizing potential problems with the Breathalyzer devices.

 Finally, Jamerson said, the District Attorney’s Office will start doing its own calibration checks on Breathalyzers rather than depend solely on police certification.

 The real bill will be some time in coming.

 Besides the cost of reviewing thousands of DUI prosecutions and likely retrying some, the police and city could face civil lawsuits by people wrongly convicted – some of whom may have lost their driver’s license, their job, or their freedom.

 Though police officials have a list of about 400 people affected by the miscalibrated machines, Jamerson said Williams had decided a full review was needed.

 Though defense lawyers specializing in DUI cases said only two of the Police Department’s eight Breathalyzers had proved inaccurate, police said Wednesday that the total was four. Some court-system sources said that number was likely to increase.

 Thousands of citizens are convicted every day of driving with a blood-alcohol level of .08% — based entirely upon the readings of these machines.  In a “trial by machine”, the results of these devices legally establish a rebuttable presumption of guilt and are considered proof beyond a reasonable doubt.  See Whatever Happened to the Presumption of Innocence? and Trial by Machine.

U.S. SUPREME COURT TO WEIGH SOCIOLOGY ISSUE IN WAL-MART DISCRIMINATION CASE – THIS IS A NOVEL USE OF SOCIOLOGY TO DETERMINE CLASS ACTION

Monday, March 28th, 2011

By ADAM LIPTAK    March 27, 2011

WASHINGTON — When the Supreme Court considers on Tuesday (March 29) whether hundreds of thousands of women can band together in an employment discrimination suit against Wal-Mart, the argument may hinge on the validity of the hotly disputed conclusions of a Chicago sociologist.

Plaintiffs in the class-action suit, who claim that Wal-Mart owes billions of dollars to as many as 1.5 million women who they say were unfairly treated on pay and promotions, enlisted the support of William T. Bielby, an academic specializing in “social framework analysis.”

A central question in the case is whether he should have been allowed, in preliminary proceedings, to go beyond describing general research about gender stereotypes in the workplace to draw specific conclusions about what he called flaws in Wal-Mart’s personnel policies.

“Bielby made a conclusion that he had no basis to make,” said Laurens Walker, one of two University of Virginia professors who coined the term for the analysis almost 25 years ago. “He hasn’t done the research.”

But a brief supporting the plaintiffs from the American Sociological Association said that Professor Bielby’s work explaining how Wal-Mart’s policies may have led to discrimination “is well within our discipline’s accepted methods.”

The sharp arguments are a testament to the central role that social framework analysis has come to play in scores of major employment discrimination cases. Describing what was at stake in such cases, a 2009 article in The Fordham Law Review defending Professor Bielby said the debate was “about the existence of unconscious or implicit bias, the continued seriousness of discrimination as a force in the modern workplace and the appropriate reach of legal remedies to challenge discrimination.”

The Supreme Court is not considering whether Wal-Mart, the country’s largest retailer and biggest private employer, in fact discriminated against women who worked there. For now, the question before the justices in the case, Wal-Mart Stores v. Dukes, No. 10-277, is only whether hundreds of thousands of female workers have enough in common to join together in a single suit.

To make that case, the plaintiffs submitted 120 sworn statements describing what they said was anecdotal evidence of discrimination. They also offered statistics showing what they said were suspicious gaps in pay and promotion between men and women.

Wal-Mart disputes the plaintiffs’ evidence as unrepresentative and unreliable. But even if all of it were established fact, anecdotes and statistics would not be enough. Supreme Court precedent also requires lawyers pursuing a class action to identify the common policy that they say led to unlawful discrimination.

For that, the lawyers for the plaintiffs in the Wal-Mart case turned to Professor Bielby, who teaches at the University of Illinois at Chicago and has testified in scores of similar cases.

Social framework analysis gives courts general information — a framework — drawn from social science. Testimony about the reliability of eyewitness identification can, for instance, serve a valuable role in cases in which prosecutors seek to rely on such evidence.

Professor Bielby, who declined a request for an interview, told the trial court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” He said he also reviewed extensive litigation materials gathered by the lawyers in the case.

He concluded that two aspects of Wal-Mart’s corporate culture might be to blame for pay and other disparities. One was a centralized personnel policy. The other was allowing subjective decisions by managers in the field. Together, he said, those factors allowed stereotypes to infect personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”

The methodology he used, Professor Bielby explained, was social framework analysis. He cited the seminal work of the two law professors at the University of Virginia, Professors Walker and John Monahan, in the first of 123 footnotes in his 41-page sworn declaration in the case.

But Professors Walker and Monahan contend in their academic writing that Professor Bielby has misused social framework analysis. It is fine, they say, to give courts general information about social science research. But it is improper, they continue, to draw conclusions about the matter in dispute without conducting first-hand research.

“This is a case about a missing link,” Professor Walker said of the Wal-Mart litigation. “You can make the link, if you do the research. But what’s holding this class together is — nothing.”

That position, also set out in a 2008 article in The Virginia Law Review by Professors Walker, Monahan and Gregory Mitchell, has prompted sharp responses.

The Fordham article, by Professors Melissa Hart and Paul M. Secunda, said that Professors Walker and Monahan “seem to suggest that their coining of this phrase gives them a unique right to define the terms and content of expert testimony offered in employment discrimination cases.”

Professors Hart and Secunda added that the third author of the Virginia article, Professor Mitchell, is affiliated with a firm that has provided expert witness services to defendants in employment discrimination suits.

Professor Mitchell said in an e-mail that he was “against bad science whether offered by plaintiffs or defendants” and that his firm’s work “has been for defendants in employment cases because ‘social framework analysis’ has become so popular among the experts used by plaintiffs.”

He added that if his academic critique of social framework analysis was accepted by the Supreme Court, “then the likelihood of me being asked to testify against bad social science experts will go down.”

“And I would welcome that development,” he said.

For their parts, Professor Walker said that he and Professor Monahan “don’t have a dog in this hunt,” adding that “we’re working purely on keeping the methodology proper.”

Laura Beth Nielsen, a sociologist and lawyer who worked on the American Sociological Association’s brief defending Professor Bielby, said “it is tremendously important that jurors and judges understand what we know about the world.” But, she added, “you have to be cautious.”

In the Virginia Law Review article, Professor Walker and his colleagues said Professor Bielby had been far from cautious. In particular, they said, “Dr. Bielby’s report provides no verifiable method for measuring or testing any of the variables that were crucial to his conclusions.”

At his deposition in 2003, Professor Bielby was asked “how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart.”

“I can’t put a number on it,” he replied.

Asked whether he could give any guidance in “a range between, you know, .5 percent of the employment decisions and 99.5 percent,” he said no.

Should the Supreme Court allow social framework evidence like that presented by Professor Bielby, many large employers could be vulnerable to class-action claims, Professor Walker said. “If this is enough,” Professor Walker said of Professor Bielby’s declaration, “this opinion is perfectly transportable.”

In a brief supporting Wal-Mart, lawyers for Costco agreed. Certifying a class in the Wal-Mart case, they said, would mean that “employers with decentralized business models will have few avenues available to escape a Bielby-enabled certification order, other than resorting to surreptitious quotas.”

Attorneys are using internet chat sites to test out legal theories with the public

Saturday, March 26th, 2011

We just got back from a tour of southern Kentucky and spoke with many lawyers about current issues.  One lawyer gave us a tip that we thought was pretty unique.   This skilled litigator said they had used web sites such as Facebook and Topix  to present issues in pending trials and to see what the “public” reaction was to their defense.  They found valuable input from the public on which issues would fly and which issues would not fly to the general public.

We then found an article on this very subject in the Indianapolis Star.   This is an interesting use of available resources.

Lawyers probe jurors’ thinking by Web checks

By Carrie Ritchie   The Indianapolis Star

INDIANAPOLIS – The MySpace photo showed a man standing with a group of friends, holding bottles of beer.

But when lawyer BJ Brinkerhoff took a good look, he saw more than a man having a good time. He saw the possibility of a sympathetic juror.

Brinkerhoff was defending a bar in a wrongful death lawsuit, and the man was among those on a list of potential jurors. Brinkerhoff figured a juror who enjoys an adult beverage might be a keeper.

The case ultimately was settled before trial, but Brinkerhoff’s strategy of scouring the Internet to search for clues about prospective jurors – their interests, their biases, their politics – illustrates how lawyers increasingly are using the Internet and social networking sites such as MySpace and Facebook to help screen potential jurors.

“It’s a resource that any modern-day trial lawyer would be foolish not to use,” said Larry Mackey, a partner at Barnes & Thornburg here who has done criminal defense and prosecution work on several high-profile cases.

Mackey, who prosecuted Oklahoma City bomber Timothy McVeigh in the mid-1990s, recalled that McVeigh’s defense attorneys used the Internet to research jurors.

Picking the “right” jury is among the most critical aspects of a trial. In some cases, lawyers spend tens of thousands of dollars to hire consultants who research jurors’ backgrounds and advise on what to look for.

More typically, lawyers rely on county-provided questionnaires that ask prospective jurors basic questions about employment, criminal history and their families. They also can question prospective jurors during jury selection.

Based on that information, lawyers may disqualify some jurors. Judges also may disqualify them.

Often, lawyers don’t learn the names of potential jurors until hours before selection. But sometimes, they are given a list a few days before a trial. That’s when social media and basic Internet searches can be particularly useful.

Lawyers have culled information from the Internet to rule out jurors for reasons that include attempted contact with extraterrestrials and an affinity for crime shows. A prosecutor in Texas even bought his staff iPads so they could research jurors while in court.

Facebook, My-Space, Google, blogs, Twitter – all are a potential gold mine.

“There’s no question that you have a better jury selection process because you have more information going in,” said Dennis Stolle, president of Indianapolis-based ThemeVision LLC, a litigation consulting firm that regularly vets potential jurors online.

When Stolle was researching jurors for a civil case that involved complex life-sciences technology, he learned through a Google search that a potential juror was an expert on that technology.

He found the man’s resume online and used it to develop specific questions to determine how he might feel about the case.

Blogs can be even more telling, Stolle said, especially if people freely post their thoughts on a variety of issues.

But is all this snooping into the lives of potential jurors ethical?

Yes, as long as lawyers are using information that’s open to the public, said Novella Nedeff, clinical associate professor of law at Indiana University School of Law-Indianapolis.

However, she said, if a lawyer were to try to “friend” someone on Facebook to get access to private information, that might violate ethical rules.

The Marion County prosecutor’s office is examining the various ethical issues, Chief Deputy David Rimstidt said.

“If it’s considered to be ethical,” Rimstidt said, “I assume that we would give our folks the green light to do this kind of inquiry because we need to find as much information as we can about our potential jurors.” That’s fine with Amy Campbell, 32, of Carmel, Ind., who recently was summoned for jury duty.

Campbell uses Facebook and Twitter often, and she freely shares her views, including those tied to politics. She keeps her Facebook account private, but her microblogging on Twitter is open to anyone online.

Her philosophy: Anything she says on Twitter, she’s comfortable sharing.

“It doesn’t bother me in the least, because that’s who I am, and if they think they need to look at that stuff to see if I should be on their jury, that’s fine,” Campbell said. “It’s not like I’m hiding anything.” But some who use social networking sites keep things private – or at least try to. They are making their social media pages private (only for selected friends to view). And many times, Stolle said, people who make inflammatory comments on blogs do so anonymously or under a pseudonym.

Sometimes, Nedeff said, searching for jurors online might not be worth the time and effort.

That can be true when someone has a common name or if clients can’t afford the extra work hours.

MUST THE FEN PHEN PLAINTIFFS RETURN THE $23 MILLION DOLLARS NOW THAT THE COURT OF APPEALS HAVE SET ASIDE THE SUMMARY JUDGMENT IN THE CIVIL CASE?

Thursday, March 24th, 2011

By LawReader Senior Editor Stan Billingsley                                      March 24, 2011

In February the Kentucky Court of Appeals reversed the summary judgment in the Boone County Fen Phen case.   Previously Special Judge Wehr had awarded a summary judgment in favor of the Fen Phen class action plaintiffs.  The amount of the award was $42 million dollars.

Judge Wehr ordered seizure of the assets for the Charitable Trust set up with “excess funds” of the Fen Phen settlement.  Wehr held that the funds should be awarded to the plaintiffs, but the Court of Appeals held that a fact issue existed and the Summary Judgment was improper and suggested that the issue of who got the charitable trust funds was yet to be decided..

Judge Wehr had ordered that the $23 million dollars in the charitable trust could be seized and held in a “constructive trust” pending final outcome of the appeal.

If on retrial of the Fen Phen case it is held that the funds belong to the plaintiffs, then a formula for distribution will have to be ruled on.  Some 200 Plaintiffs had no injuries from taking the diet drug, others may have died from taking the drug. 

Special Judge Roger Crittenden succeeded Judge Wehr after his retirement.  Crittenden ordered in 2007 that since no supercedes bond had been posted that the funds Wehr had ordered to be held in “constructive trust” could be distributed.

LawReader has received numerous reports that the $23 million dollars taken from the charitable trust have been distributed to the Fen Phen plaintiffs and their attorney Angela Ford..

The question has been raised, “What is the status of this $23 million dollars?”  Should it be paid back to the original Fen Phen lawyers, Bill Gallion and Shirley Cunningham, or should it be again held in a court ordered “constructive trust” pending conclusion of the remand trial and any subsequent appeals, or should it be left in the hands of the plaintiffs and their attorney assuming the funds have actually been distributed.  

If the funds have been actually distributed to Angela Ford and her clients, what will happen if they are ordered to repay those funds?   Have any plaintiffs who received a share of the $23 million dollars be able to pay it back if they lose at the upcoming civil trial?   What effect does the criminal case restitution order have on these funds?  The criminal conviction of Gallion and Cunningham are pending in the Sixth Circuit Court of Appeals.

The following Memorandum of Law regarding “Recoupment of Assets Collected by Plaintiffs in Civil Suit was sent to LawReader.   We make no conclusion about these issues.   Our limited research suggests that this issue is relative novel.  We would predict a great deal of litigation will follow.

One comment we received raised the question of how had the responsibility to look after these funds in light of the reversal by the Court of Appeals.   Judge Crittenden has been replaced by another retired Circuit Judge, and it is not yet known who may actually be assigned to do the retrial.  But the question remains, who is entitled to possession of at least $23 million dollars which was seized by court order and apparently distributed to the parties and their attorney, and now there is no judgment upholding that distribution or their entitlement to the funds.

LawReader invites any comments or research on this interesting topic.  What will happen if the plaintiffs and Angela Ford are ordered to return this $23 million dollars to the court?  Have they held on to the money or have they spent it?  What was the formula under which the funds were distributed?

We do not presume to know the answer to these complex questions.  But we see the possibility that like the original Fen Phen case the issue of who is entitled to possession of these funds is far from a resolution.

LawReader will be glad to publish any legal arguments and research tendered by any credible source on these interesting topics.

The following research was submitted to LawReader.  We have added emphasis throughout.

MEMORANDUM OF LAW

RE:                  Recoupment of Assets Collected by Plaintiffs in Civil Suit

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            FACTS:  In the civil suit against Bill Gallion and others (“Gallion“), the trial court entered summary judgment in favor of the plaintiffs and awarded damages of $42 million. Gallion appealed. Gallion did not stay enforcement of the judgment by giving a supersedeas bond under CR 62.03 and 73.04. The plaintiffs collected money and other assets from Gallion to satisfy the judgment. The Court of Appeals reversed the summary judgment and remanded for trial. Gallion anticipates further appellate efforts by the plaintiffs.

            ISSUE:  May Gallion recoup from the plaintiffs the assets collected by the plaintiff, without waiting for the case to be final after all appellate efforts are exhausted?

            CONCLUSION:  Yes, Gallion is entitled to restitution of assets collected by the plaintiffs without waiting for the end of the litigation. It is possible that the amount of restitution may be less than full restitution if the court believes equity justifies a reduction. Gallion may also be entitled to interest, depending on how the court views the equities of the situation. Gallion is entitled to specific restitution of any real estate seized (along with the value of the use of the property in the interval, less expenses for protecting the property), only if the real estate was not sold to someone who is an outsider to the litigation.  Restitution (or recoupment) is not damages; although Gallion is entitled to restitution, Gallion is not entitled to damages for the plaintiff’s actions in collecting on the judgment because there was no supersedeas bond (this statement is made in passing in the cases I read; presumably an action for damages is not precluded if the plaintiffs did something outside legal procedures in their collection efforts).

            DISCUSSION: 

            A judgment that has been reversed is a nullity:

It has long been the law in Kentucky that the complete reversal of a judgment nullifies it and returns the parties to the positions they occupied before it was rendered. “A judgment which has been reversed is as though it had never been, and the court should not allow the party who procured it to retain an advantage gained by reason of it.” Knight’s Admr. v. Illinois Central Railroad Co., 143 Ky. 418, 136 S.W. 874, 875 (1911); Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969 (1933) (same); Baker’s Heirs v. Duff, 238 S.W.2d 841 (Ky. 1951) (no rights can be derived from a reversed judgment).” 

 

Marshall v. Goodwine, No. 2009-SC~000495-MR, Supreme Court of Kentucky, August 26, 2010 (to be published; not final).

            A party who proceeds to enforce an unsuperseded judgment during an appeal proceeds at its own risk; the fact that the party incurs costs in enforcing the judgment is merely “unfortunate” if the judgment is later reversed. Id.

In Alexander Hamilton Life Insurance Company of America v. Lewis, 550 S.W.2d 558 (Ky. 1977), the Supreme Court of Kentucky held that parents who obtained a judgment awarding them life insurance when their long-missing daughter was presumed dead must return the money after the daughter was found alive, strongly reaffirming the principle, which goes back at least 150 years, that when money is paid to satisfy a judgment, and the judgment is then reversed, the money must be returned. “It is an accepted principle that money paid in obedience to a judgment that is later set aside must be repaid. Fitch v. Kentucky-Tennessee Light & Power Co., 308 Ky. 652, 215 S.W.2d 91, 92 (1948); Turner v. Ewald, 295 Ky. 764, 174 S.W.2d 431, 438 (1943); Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 972, 88 A.L.R. 917 (1933); Morgan v. Hart, 48 Ky. (9 B.Mon.) 79, 80 (1848).” Alexander Hamilton Life Ins. Co. of America v. Lewis, 550 S.W.2d 558, 559 (Ky. 1977). 

       “A person who has conferred a benefit upon another in compliance with a judgment is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable. . . .’ (Emphasis added.) Restatement, Restitution, § 74.” Alexander Hamilton Life Ins. Co., 550 S.W.2d at 559.

            The Lewises (the parents) argued that they should not have to return all the money because they had spent some of it and “restitution would be inequitable,” relying on the Restatement provision quoted in the preceding paragraph. The trial court took evidence on what they had done with the money and their financial condition and ordered them to return only half the money (after previously denying the life insurance company any relief, an order that was overturned by the appellate court in a previous appeal). The Supreme Court did not accept that argument:

            The theory of restitution as a basis for recovery is about as old as the law itself. Though often assumed to be purely an equitable remedy, some of the earliest proceedings both at common law and in equity were founded upon it and were amplified in the course of time. Restatement, Restitution, Chapter 1, Introductory Note. The obvious justification for it is that one should not be unjustly enriched at the expense of another. Id., § 1.

            In Bridges v. McAlister, 106 Ky. 791, 51 S.W. 603, 21 KLR 428, 45 LRA 80, 90 Am.St.Rep. 267 (1899), the accountability of a party for actions taken under authority of a judgment later set aside was discussed at some length. Among other things the court concluded as follows: “When a judgment is reversed, restitution must be made of all that has been received under it, but no further liability should in any case be imposed.” Id., 51 S.W. at p. 605. Our attention has not been directed to any precedent in this jurisdiction for relieving a party of the duty to restore all of the money paid to him under a judgment subsequently vacated. Understandably, of course, the receipt and disbursement of money by someone in a fiduciary capacity could very well present a different case, but when the party who received the money by authority of the judgment has spent some or all of it at his own volition and for his own ends, we find it difficult to accept the proposition that equity diminishes his accountability.”

Alexander Hamilton Life Ins. Co., 550 S.W.2d at 559.

                According to § 142(1) of the Restatement, Restitution, “The right of a person to restitution from another because of a benefit received is terminated or diminished if, after the receipt of the benefit, circumstances have so changed that it would be inequitable to require the other to make full restitution.” The Comment following that section explains that there is no such change in circumstances “where the money is used for the payment of living expenses, or even used to make gifts, unless such expenses were incurred or gifts made because of the receipt of the money and the amount of such payment was of such size that considering the financial condition of the payee it would be inequitable to require payment.” (Emphasis added.)

            The illustrations following that commentary do not reveal to our satisfaction a workable criterion for determining what is “inequitable.” “Equity” is a broad term, allowing for as many different definitions as there are people who are familiar with it. Often overlooked, however, is the simple fact that both equity and equality are derived from the same word and have much more in common than a similar sound. We think of equity as an implement of sympathy and compassion, but its real meaning is more akin to equality. What is fair for one must be fair for the other. In this case, is it fair that the stockholders of the insurance company lose $7200 because the Lewises have spent the money? We do not think so. It was not the insurance company, but the Lewises, who claimed their daughter was dead, and it is not at all unjust to hold that when they took the money they had to do so at the risk of having to repay it if their claim proved to be unfounded, as it did. We perceive nothing in this record to raise an equitable defense in mitigation of the demand for restitution.

Alexander Hamilton Life Ins. Co., 550 S.W.2d at 559-60.

            The Court then discussed the life insurance company’s entitlement to recover interest from the Lewises:

            On the question of interest, there can be no doubt that the insurance company’s claim for restitution, though quasi-contractual in nature, was “liquidated” and that interest ordinarily is recoverable as a matter of right on a liquidated claim. Shanklin v. Townsend, Ky., 434 S.W.2d 655, 656 (1968). Interest may be allowed also on the basis of an implied contract, or quasi-contract, and probably should be if the money or property has been used for profit-making. Curtis v. Campbell, Ky., 336 S.W.2d 355, 361 (1960); Henderson Cotton Mfg. Co. v. Lowell Machine-Shops, 86 Ky. 668, 7 S.W. 142, 145 (1888).

            In Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313 (1939), the United States, in behalf of an Indian to whom land had been patented, sued Jackson County, Kansas, to recover taxes paid under a fee-simple patent that had been later cancelled. In holding that interest was not recoverable, the court had this to say with respect to actions based on quasi-contractual obligations:

       “The cases teach that interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness. It is denied when its exaction would be inequitable.”

            The dispositive equitable circumstance favoring the county in that case was that during the time it was collecting the taxes it had no reason to know that a subsequent event would result in their having been unauthorized. “The true ground upon which to put the allowance of interest is the fault of the party who is to pay the debt. If he has made default of payment, then, ex aequo et bono, he should reimburse the creditor for keeping him out of the use of his money. He should render an equivalent for the use of what is not his own.” Henderson Cotton Mfg. Co. v. Lowell Machine-Shops, supra, at 7 S.W. 145.

            When an innocent party uses the money or property of another in reliance upon a final unappealed judgment that says it is his, it can hardly be said that he is at fault unless and until he is put on notice of circumstances that justify or call for setting the judgment aside. In this case the Lewises learned on July 25, 1971, that their daughter was still alive. A private investigator employed by the insurance company discovered it on August 25, 1971. On the basis of these facts we are of the opinion that interest on the amount recoverable by the insurance company should run from July 25, 1971.

            In 2008, the Supreme Court f Kentucky again ordered that interest be paid on money that had to be returned because it was collected under a judgment that was reversed, relying on Alexander Hamilton Life Insurance, in Cheyenne Resources, Inc. v. Elk Horn Coal Corp., 265 S.W.3d 184 (Ky. 2008). Cheyenne was awarded a large judgment against Elk Horn and a 10% penalty was added to the judgment; the 10% penalty part of the judgment was later reversed as being based on an unconstitutional statutory provision. The Court wrote:

            Restatement (First) of Restitution, § 74 (1937) provides:

            A person who has conferred a benefit upon another in compliance with a judgment, or whose property has been taken thereunder, is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable or the parties contract of payment is to be final.

            Comment d to the Restatement further provides:

            If payment has been made to the judgment creditor or to his agent, or to an officer who has paid the judgment creditor, upon reversal of the judgment the payor is entitled to receive from the creditor the amount thus paid with interest. (Emphasis supplied.)

Restatement (First) of Restitution, § 74, Comment d (1937).

            Although Cheyenne argues Elk Horn should not be entitled to pre-judgment interest from March 16, 2001, because the tortious conduct of Elk Horn resulted in the underlying judgment which ultimately triggered the 10% penalty payment, we reject that argument in this case. Elk Horn paid for its conduct in satisfying a judgment that included both pre-judgment and post-judgment interest so that its payment amounted to some $14,000,000.00. Elk Horn should not be penalized in this instance by virtue of an unconstitutional statute.

            Restitution requires making the paying party whole. As put by Professor Dobbs, “As we have seen, restitution is not damages; restitution is a restoration to prevent unjust enrichment.” Dobbs, Law of Remedies § 4.1(1), at 556 (2d ed.1993). Here, Cheyenne Resources unquestionably had the use of the $950,000.00 from the date that it was paid, i.e., March 16, 2001, until that $950,000.00 was repaid on August 15, 2005. Likewise, Elk Horn was deprived of the use of that money during that time period. As pointed out by Elk Horn in citing this Court’s predecessor in City of Louisville v. Henderson’s Tr., 11 KY. L. Rptr. 796, 13 S.W. 111, 112 (1890):

If, in such a case, a creditor, after the lapse of years of litigation, is not entitled to interest, then he will, in effect, lose a part of his debt. He would be kept out of the use of his money; the debtor, in the mean time, getting the benefit of it. The latter would, in effect, pay but a part of his debt.

            Restitution restores the party who has satisfied a judgment that was erroneously entered to the position which the party would have occupied but for the entry of the erroneous judgment. As this Court said in Alexander Hamilton Life Ins. Co. of Am. v. Lewis, supra at 559, in describing the justification for restitution, “The obvious justification for restitution is that one should not be unjustly enriched at the expense of another.”

Cheyenne Resources, Inc. v. Elk Horn Coal Corp., 265 S.W.3d 184, 186-87 (Ky. 2008). The Court concluded, “Here, Cheyenne had the unfettered use of $950,000.00 from March 16, 2001, until August 15, 2005. The amount was liquidated. There is nothing in the record that would suggest there is any equitable reason to require anything other than a full restitution. Full restitution means just that. To make Elk Horn Coal Corporation whole, Cheyenne must pay the interest on the $950,000.00 from the date that it first had use of that money.” Id. at 187 (footnote omitted).

 

            One of the cases cited by Alexander Hamilton Life, Drury v. Franke, 57 S.W.2d 969 (Ky. 1933), makes it clear not only that the right to restitution of money paid under a judgment that has been reversed exists, but also that the party claiming restitution does not have to wait for its money until the final termination of the litigation:

 

            The court is of the opinion that in the event of a reversal the right of the defendant to demand restitution exists, and that the trial court has ample authority to require the money collected under the judgments to be repaid. The rule requiring restitution in such cases is recognized by all the authorities. “When a judgment is reversed, restitution must be made of all that has been received under it.”  Bridges, etc., v. McAlister, 106 Ky. 791, 51 S.W. 603, 605, 21 Ky. Law Rep. 428, 45 L.R.A. 800, 90 Am.St.Rep. 267. In  Gregory v. Litsey, 9 B. Mon. 43, 48 Am.Dec. 415, Gregory had obtained a judgment against Litsey for $485.42, which the latter had paid and then appealed. The judgment was reversed. When the mandate was filed in the circuit court, a rule was granted against Gregory requiring him to show cause why he should not be compelled to refund the amount paid him by Litsey. The rule was made absolute and Gregory ordered to refund the money. On the appeal from this order it was affirmed. The case of Ex parte Walter Brothers, an Alabama case, reported in 89 Ala. 237, 7 So. 400, 401, 18 Am.St.Rep. 103, is perhaps the leading case on this question. In that case after a judgment had been paid, and reversed on an appeal, application was made for a writ of mandamus, directed to the chancellor of the court to require him to make an order of restitution in the case which was still pending in his court, requiring the plaintiff in the original suit to repay to the defendant the sum of money which he had paid under the judgment which was afterward reversed. The chancellor refused to make an order of restitution and the defendant, Brothers, appealed from that action. The appellate court in reversing the lower court, said in part: “We can conceive of no case in which a party, who pays money on a decree which is subsequently reversed, is not entitled to have restitution of what he has paid, and to be thus reinstated in the position, and to all the rights he had prior to the rendition of the erroneous decree. It is not material what those rights were, or would probably, or even certainly and necessarily, be determined to be in the further progress of the litigation. He is entitled to have his final equities adjudicated while he yet occupies whatever vantage ground was his in the inception of the contest and from that standpoint to invoke the judgment of the law on the issues he presents.

            Another excerpt from that opinion reads as follows: “He had no right to the money involved in the litigation, in contemplation of law, until there should be a correct determination of the matters in dispute, however clear his rights may have been in point of fact. He, therefore, proceeds with the cause, having an undue advantage of his adversary, and is in fact in the attitude of having gained what he claimed before his right to it had or could have been determined. We entertain no doubt, therefore, of the absolute right to have restitution made on the one hand, and the absolute correlative duty to make restitution on the other, wholly regardless of considerations looking to the final equities of the parties.”

            In the concluding paragraph of the opinion this statement is found: “That the chancellor before whom the cause is pending has the power to make an order for restitution in such case is not controverted. The parties are before him and in and about, and in the conduct of that cause they are subject to his control. The facts which constitute the only predicate for such an order–a decree, payment under it, and its reversal–are a part of the cause itself. There can be no dispute or mistake about them. On them the order for restitution goes as a matter of course.”

            We are unable to see that the situation here, if the judgments are reversed, is any different from the situation that would have existed had the defendant paid the judgments and then prosecuted an appeal and secured a reversal. The same rule with reference to restitution should apply to both situations.  Nashville, C. & St. L. Rwy. Co. v. Bean’s Ex’r, 128 Ky. 758, 109 S.W. 323, 33 Ky. Law Rep. 114, 129 Am.St.Rep. 333.

            “A judgment which has been reversed is as though it had never been.” Knight’s Adm’r v. Ill. Central R. Co., 143 Ky. 418, 136 S.W. 874, 875.

         The questions of restitution and how to accomplish it are questions which, in the event of a reversal, will address themselves to the trial court.

Drury v. Franke, 57 S.W.2d 969, 972-73 (Ky. 1933) (emphasis added).

            Peoples Building & Loan Ass’n v. Wagner, 180 S.W.2d 295 (Ky. 1944), also makes it clear that restitution is required right away when a judgment is reversed, not at the end of all litigation:

            A party who has been deprived of property under a void judgment is entitled to restitution although the reversal or the setting aside of the judgment does not terminate the litigation. Except under certain circumstances which are not present here, he is entitled to be restored to the position he occupied when the judgment was rendered. It is no answer to his motion to have the property restored to him to say that on a final hearing of the cause it will again be adjudged that he surrender that of which he now seeks restitution. To so hold would be to prejudge the case. 3 Am.Jur., Appeal and Error, § 1243;  Carroll v. Draughon, 173 Ala. 327, 56 So. 207; Id., 173 Ala. 338, 56 So. 209.  Cf. Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 88 A.L.R. 917.

Peoples Building & Loan Ass’n, 180 S.W.2d at 297.

            In Massie v. Paul, 92 S.W.2d 11 (Ky. 1936), the Court explained that the effect of Paul failing to supersede a judgment was that she was deprived of any claim for damages for acts done by the other party pursuant to the judgment, but she was not deprived of her right to restitution of amounts she paid under the judgment. Massie v. Paul, 92 S.W.2d 11, 15-16 (Ky. 1936).

            With respect to real property, when a court has jurisdiction of the parties and the subject matter of the suit and has statutory authority to decree a sale, then a subsequent reversal of the judgment decreeing the sale is a “mere declaration that the judgment is erroneous, but it is not void,” so the purchaser of the property at the sale keeps title to the real estate when the judgment was unsuperseded. Sedley v. Louisville Trust Co., 419 S.W.2d 531 (Ky. 1967); Rose v. Cox, 179 S.W.2d 871 (Ky. 1944). On the other hand, if the land is not sold but only conveyed from one party in the litigation to another party in the litigation pursuant to a judgment, and the judgment is subsequently reversed, title to the land must be restored to the original owner even if the judgment was unsuperseded. Rose, 179 S.W.2d at 874. If there is a sale and the judgment creditor is the purchaser at the sale, the judgment debtor is entitled to specific restitution upon reversal of the judgment. Peoples Building & Loan Ass’n, 180 S.W.2d at 297 (quoting Restatement of the Law of Restitution, section 74, Comment e). The judgment debtor is also entitled to the value of the property’s use in the interval less expenses necessarily incurred in the protection of the property and the payment of taxes and liens, but not including the expenses of improvements. Id.

            The law regarding restitution of money paid as child support after a judgment awarding it is reversed is different than the general rule; those cases, of which there are several, are easily distinguishable. See, e.g., Clay v. Clay, 707 S.W.2d 352 (Ky. App. 1986).

U.S. SUPREME COURT TO WEIGH PRIVACY RIGHTS – GOVERNMENT DATA BASES FOR POLICE BACK GROUND CHECKS CONTAIN INCORRECT INFORMATION ON CITIZENS

Friday, March 18th, 2011

 By William Matthews 03/18/2011

Thanks to increasingly sophisticated communications technology and ever-expanding interconnected data bases, even small-town police can run detailed background checks to discover criminals during routine traffic stops.

From their squad cars, officers can tap a network of government and private databases and in a matter of minutes retrieve a wealth of personal data well beyond name, address and driver status — including Social Security numbers, telephone numbers, past arrests, employment eligibility, immigration status, photos, fingerprints, tattoos, medical conditions and more.

But there’s a big problem with this instant access to information: A lot of what’s in the databases is wrong, says Marc Rotenberg, president of the Electronic Privacy Information Center.

In a brief filed for a case the U.S. Supreme Court will hear March 21, Rotenberg cataloged the errors he discovered in databases ranging from the FBI’s National Crime Information Center to the Homeland Security Department’s E-Verify system to intelligence data that commercial vendors collect and sell to federal and state agencies.

The FBI’s parent organization, the Justice Department, has cautioned that some of the data that the National Crime Information Center holds is incomplete and inaccurate enough to cause users “to make an incorrect or misguided decision,” including unjustified arrests, Rotenberg wrote in the brief filed with the Supreme Court on Jan. 19.

Errors in the E-Verify system are “so egregious and their effects so significant that a federal judge cited them in an opinion granting a temporary restraining order against the Department of Homeland Security,” Rotenberg said.

Commercial databases are no better. A check of one man’s ChoicePoint record disclosed that the intelligence-collecting firm listed him variously as being a female prostitute in Florida, a prison inmate in Texas, a dealer of stolen goods in New Mexico, a witness tamperer in Oregon, and a sex offender in Nevada.

He was none of those, Rotenberg said, but federal and state law enforcement agencies routinely use error-plagued databases that ChoicePoint and other data brokers compile.

Rotenberg hopes to convince the Supreme Court to overturn the conviction of Jose Tolentino, who was stopped by police at 7:40 p.m. on New Year’s Day 2005 for playing music too loudly as he drove down a street in New York City.

A police computer check of motor vehicle records disclosed that Tolentino’s driver’s license had been suspended at least 10 times, and was suspended at the time he was stopped, so he was arrested.

Tolentino’s lawyers argued that Tolentino was stopped despite violating no traffic laws or noise ordinances, therefore the search of his motor vehicle records was illegal.

The Supreme Court is interested because the traffic stop has become a Fourth Amendment case. The amendment protects against unreasonable searches and seizures, and it requires law enforcement authorities to show that they have probable cause before conducting a search.

Rotenberg said communications technology and databases have made unreasonable searches far too easy for police.

In his brief, he argued, “Government databases give police officers access to an extraordinary range of detailed personal information. No longer does the stop of a vehicle provide access to simple information about the status of the car.

“Given a few minutes, police officers can search from their squad cars an increasingly sophisticated network of government data systems and obtain personal information once scattered across municipal, state and federal criminal databases that would never have been available in the context of a routine car stop.”

Due to the power of technology, he says, the courts must step in to protect the right to privacy. He quoted Associate Justice Samuel Alito as writing: “We sense a great threat to privacy in modern America; we all believe that privacy is too often sacrificed to other values; we all believe that the threat to privacy is steadily and rapidly mounting; we all believe that action must be taken on many fronts now to preserve privacy.”

That was 1971, when Alito was a student at Princeton University, before police could tap vast databases from their squad cars, search through 70 million fingerprints in a matter of minutes, and comb files of digital photos, immigration records, watch lists and commercial intelligence files.

With so much information so readily available, “the risk is real that car stops will increasingly become pretextual because of the opportunity to search a government database for data unrelated to the reason that gave rise to the original stop,” Rotenberg wrote.

As for Tolentino, he was charged with first-degree aggravated unlicensed operation of a motor vehicle, and he pleaded guilty in exchange for a sentence of five years’ probation.

Later, however, he appealed, arguing that the police stop and the search of his driving record were illegal. When the New York Court of Appeals disagreed, Tolentino took his case to the U.S. Supreme Court, which agreed last November to hear it.

Florida House and Governor seek to take over court system – It could happen in Kentucky – Approval of all Judges by State Senate is a Wacko Idea

Friday, March 18th, 2011

Rick Scott was virtually ran out of Louisville  when his company was charged with l4 felonies. In 1987 he helped found the Columbia Hospital Corporation with two business partners; this merged with Hospital Corporation of America in 1989 to form Columbia/HCA and eventually became the largest private for-profit health care company in the U.S.

He was forced to resign as Chief Executive of Columbia/HCA in 1997 amid a scandal over the company’s business and Medicare billing practices; the company ultimately admitted to fourteen felonies and agreed to pay the federal government over $600 million

In 2010 he was elected Governor of Florida.  His latest project is to take over the court system.  The details are spelled out in an article in the Tampa Tribune cited below.

One of the features of Scott’s coup on the Courts is a provision that would require approval of all judges by the Florida State Senate.   Kentucky went through a crazy spell a decade or so ago where they sought to rein in the Governor and limit his appointment powers over Executive Branch Officials by requiring approval of the State Senate.  That has not worked out all that well.  

Recently Senate President David Williams blocked a number of nominees who were considered by the Governor and others as outstanding nominees. The names were submitted by Gov. Steve Beshear who is charged with operating the Executive Branch and therefore it may be argued should be able to choose his own executives.

 Without a hearing and without explanation the Senate just refused to consider the appointments before the legislature adjourned.   We shudder to think what would happen to the independence of the judiciary if all judges had to be approved by the State Senate.

We suppose that the lust for Gov. Scott to take over the judiciary must have come from Central Headquarters at Fox News.   Perhaps they should consider that they won’t always be in charge of the State Senate, and if they someday happen to be on the short end of the stick, they may not appreciate the political payback that could occur.

The current makeup of the Kentucky judiciary, while not without it faults, is far better than a system that Scott and others propose.  We are glad that Scott was run out of town on a rail, and hope that he stays in Florida with his crazy ideas.

By WILLIAM MARCH | The Tampa Tribune   Published: March 18, 2011

TALLAHASSEE A move to restructure the Florida court system, giving more power in choosing judges to Gov. Rick Scott, moved forward in the state House Thursday despite objections that the bills are an attempt to take control of the state judiciary.

“This is a very scary thing – we’re supposed to have separation of powers,” said Rep. Marty Kiar, D-Davie, during debate on one of three bills that passed through a House committee Thursday.

“These amendments are direct infringements on what’s supposed to be a separate branch of government.”

But Republicans backing three bills, two calling for constitutional amendments, deny they’re trying to control the judicial branch. Instead, they said, it’s an attempt to increase court efficiency and add accountability in selection of judges.

Rep. Matt Gaetz, R-Fort Walton Beach, backing one of the bills, called the Democrats’ accusation “absurd.”

He said House Speaker Dean Cannon, a Winter Haven Republican, “has instructed this body to focus on accountability, and that’s what this bill does.”

Rep. Charles McBurney, R-Jacksonville, backing another of the bills, added, “The accountable party is the governor. This put the entire onus on the executive branch … The governor is accountable to the people.”

The House Civil Justice Committee passed the three bills Thursday afternoon, all opposed by the committee’s five Democrats and backed by its 10 Republicans, including Shawn Harrison of Tampa.

Other committee stops and action by the full House and Senate would be needed to pass them. They are:

•An amendment to break the state Supreme Court in two, one court for criminal cases and one for civil cases, adding three justices so each would have five.

•An amendment to abolish the judicial nominating commissions that submit nominees for appeals court and Supreme Court justices.

The governor would then have sole power to name justices, but the state Senate would have to confirm them. Proponents said it models the federal process for naming justices.

•A bill not requiring an amendment that gives the governor sole power to appoint all members of the judicial nominating commissions that submit nominees for trial court seats.

The amendments would have to get at least 60 percent voter approval.

The proposal for a split Supreme Court comes from Cannon. He has tangled with the court over previous constitutional amendments proposed by the Republican legislative majorities, which the court kicked off ballots as unclear or deceptive.

One was a response to the anti-gerrymandering amendments that voters approved in November — an attempt to undo the effect of those amendments, their backers said. At Cannon’s direction, the House is now joining a lawsuit to undo the amendments. Another would have sought to prevent national health care reform from taking effect in Florida.

Cannon has denied the court proposal is an attempt to rein in the court or add sympathetic judges, saying it’s necessary because of a large backlog of death penalty cases.

Under the proposal, the three most senior justices, all dating from the Gov. Lawton Chiles era, would go on the criminal court.

Scott, meanwhile, reportedly has tangled at least once with a judicial nominating commission.

In Florida, judicial nominating commissions, or JNC’s, produce lists of candidates for all vacant judgeships when a judge retires or dies. Under state law, the governor must choose from among those candidates.

The governor appoints all judicial nominating commission members, but the Florida bar nominates lists of candidates for four of each JNC’s nine members. The bill would give Scott power to appoint all members of all trial court JNC’s, with no involvement by the Bar.

Shortly after he took office, Scott rejected a list of four possible nominees for a 4th District Court of Appeals seat, but the JNC refused to provide any further nominees.

Other governors have also clashed with JNC’s. The current system, in fact, results from legislation backed by former Gov. Jeb Bush to take more control over them.

Former Florida Chief Justice Gerald Kogan said that under the system originally set up in the 1970′s in an attempt to de-politicize judicial appointments, the governor chose three members of each JNC, the Bar chose three and those six chose the remaining three.

He called the moves “not necessary reforms at all,” but “an attempt by the state Legislature and the governor’s office to take control of the third and equal branch of government, to get back at the Supreme Court for ruling against them.”

If the governor appointed JNC members, Kogan, a Democrat said, “He can simply appoint whoever will do his bidding. All he has to do is say, ‘Send me this person’s name.’ ”

Rep. Darren Soto, D-Orlando, called the bills “a power grab for the Scott administration and the Legislature,” and “an attempt to eradicate all Crist nominees” on the JNC’s.

The Supreme Court justices, Kiar said, haven’t asked for more justices or two separate courts to help with their workload.

David Monaco, chief judge of the 5th District Court of Appeals in Daytona Beach, told the committee the JNC’s perform a “vetting process” so regardless which candidate the governor picks or why, “The citizens can be assured that the person selected is qualified.”

Florida Bar President Mayanne Downs of Orlando also opposed the changes, saying the system gives the Bar “a very light footprint” in the process, but also provides “an opportunity for input and experienced knowledge” in choosing judges.

But Gaetz said the changes would “enhance accountability and ratify the role of the executive in serving as a check on the judicial.

“No one can vote against the Florida Bar. No one can vote against a JNC member. But they sure can vote against the governor.”

Committee Chairman Eric Eisnaugle, R-Orlando, said the Supreme Court faces an insurmountable backlog of death row appeals.

“In the last few years, more death row inmates have died of natural causes than executions,” and 34 inmates have lived on death row more than 30 years, he said.

The fate of the bills may be uncertain. While they’re a priority of Cannon and the House, there has been no sign of similar zeal for court changes in the Senate.

“I’m not aware of anything exactly like this moving in the Senate,” said Soto. “They could turn into bargaining chips between the two houses.”

ATHEIST WEDDING VOW FROM 1862.

Thursday, March 17th, 2011

LawReader CEO Gwen Billingsley

      My mother is getting on in years, and as mothers do, she passed on some family papers to me recently.  I found this interesting article from a Nashville newspaper from 1862. 

“NASHVILLE DAILY UNION, November 20,1862. p. 3, c 3

A singular couple got married in Chester County, Penn., the other day, merely making the following declaration in the presence of friends.

“We, Orson S. Murray, and Lydia P. Jacobs, make known to these our friends that we have chosen each other for conjugal companionship, in prosperity and adversity, in life and till death. We ask no license. We submit to  no dictation. We bow to no authority. We recognize no God nor Almighty power to guide or guard us. Our promises are to ourselves and each other, not to others. Our trust is not in others but in ourselves and each other.”

You can be convicted of perjury FOR TELLING THE TRUTH – Federal Court eliminates “literal truth” defense to perjury

Thursday, March 17th, 2011

Witnesses must answer not the question asked, but the imaginary “intended question”


Perjury, or lying by a witness under oath, is a felony punishable with incaracertion in prison. But, one of the hallmarks of perjury law has always been that if a witness tells the truth, there is no crime of perjury committed.

The U.S. Supreme Court strongly upheld this principle in Bronston v. United States, 409 U.S. 352 (1973). They ruled that even if a witness answers a question in a misleading way, as long as the answer is literally true, perjury has not been committed. This is known as the “literal truth” defense.

In the Bronston case, the witness was asked if he had ever had bank accounts in Switzerland, and he said that his company did. Because his answer concealed the fact that he also had bank accounts in Switzerland, the prosecutor prosecuted him for perjury. The U.S. Supreme Court, in a unanimous decision, ruled that since the witness had told no lies, he had not committed perjury.

The Court made it clear that it is the duty of the attorneys to ask their questions in a clear way, and probe for the answers, and that it is not the duty of the witnesses to do it for them. The Court stated:

It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination…The cases support petitioner’s position that the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner – so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry…

Precise questioning is imperative as a predicate for the offense of perjury.

SURPRISE! This rule of law no longer counts, at least not in federal courts in Michigan, Ohio, Kentucky and Tennessee, the states governed by the United States Court of Appeals for the Sixth Circuit. If you don’t believe it, ask Robert DeZarn. In the case of United States v. DeZarn, the witness had attended a Preakness party in 1990 and in 1991. Investigators questioned him under penalty of perjury. He was asked questions about a 1991 Preakness party, and truthfully answered those questions.

However, investigators decided later that they should have asked DeZarn about the 1990 Preakness party. So, did they blame themselves for asking the wrong questions? You must be joking. Were any of the investigators disciplined for incompetence? Of course not. Did the questioners go back and ask the right question this time? What are you smoking? We are talking about the government here. They did what any tyrant would do: indict DeZarn for perjury, on the ground that he should have known that the questioner “really meant” to ask about 1990, and it was DeZarn’s legal obligation to answer questions about 1990 even though the questions themselves were about 1991.

Naturally, DeZarn’s attorney did what any reasonable attorney would do:

On March 11, 1996, DeZarn moved to dismiss the indictment against him arguing that the indictment against him was insufficient to charge him with perjury because when he was questioned by the Inspector General’s investigators, he was asked about a Preakness Party at Billy Wellman’s house in 1991 as opposed to 1990, and he gave literally truthful answers with respect to Wellman’s 1991 dinner party.

This motion was denied by Judge Joseph M. Hood of the Eastern District of Kentucky federal court in Frankfort. DeZarn was actually convicted of perjury at trial, on January 23, 1997, he was sentenced to 15 months incarceration and fined $5,000.00.

On appeal, the Sixth Circuit Court of Appeals, located in Cincinnati, upheld the conviction in a ruling issued October 14, 1998. They ruled that a jury could decide that a witness “knew exactly what the questions meant,” and could justly find that a person who truthfully answered the question asked lied anyway, because he did not provide the answer that the questioner really was looking for. They explained their ruling this way:

This is not to say that the question to which the answer is made is not an important part of a perjury inquiry. Of course it is. A question that is truly ambiguous or which affirmatively misleads the testifier can never provide a basis for a finding of perjury, as it could never be said that one intended to answer such a question untruthfully. But, where it can be shown from the context of the question and the state of the testifier’s knowledge at the time that the testifier clearly knew what the question meant, the Government must be permitted to present, and the fact-finder to consider, those contextual facts.

Then, they made their blockbuster ruling:

We agree with the District Court’s determination that the literal truth defense is inapplicable in this case.

Mr. DeZarn was certainly faced with a dilemma, although he did not know it at the time. He thought that when he was sworn to tell the truth, it was enough to truthfully answer the questions asked. He did not know that he was supposed to predict that he should be answering some other question, that was not asked. But if he had gone ahead and given answers about the 1990 party when asked about the 1991 party, like the judges say he should have done, wouldn’t that be perjury?

Why should the witness have to guess that when he is asked one question, he should answer a different question? The answer lies in the arrogance of government officials. Better that someone should go to prison rather than have the incompetence or mistake of a government official exposed. It is now no longer enough for government officials to make you do what they tell you; now you must also do what they should have told you.

The United States Supreme Court in the Bronston case said “Precise questioning is imperative as a predicate for the offense of perjury.” Yet, in this case, questioning about 1991 was held by judges to really mean 1990, and a prison sentence was based on DeZarn’s failure to anticipate this bizarre ruling. Congratulations to Judges Rosen, Nelson and Ryan for their cleverness in finding a way to pretend to uphold the high principle announced by the Supreme Court, while trashing it in practice.

The next time you are called to court, you might be better off refusing to testify at all. Because if someone asks you a question about where you were Thursday night, and you foolishly answer about Thursday night, and you don’t volunteer an answer about Wednesday night, you may be on your way to prison.

FEDERAL APPEALS COURT HOLDS MUGSHOTS EXEMPT FROM FOIA

Tuesday, March 15th, 2011

FEDERAL APPEALS COURT HOLDS MUGSHOTS EXEMPT FROM FOIA

 

11th Cir. · March 14, 2011 ·

 

Releasing mug shot photographs under the federal Freedom of Information Act would violate the personal privacy rights of those depicted, the U.S. Court of Appeals in Atlanta (11th Cir.) held on Friday in Karantsalis v. Department of Justice.

 

As the second federal appellate level court to address the issue, the Eleventh Circuit’s decision to deny access to mug shots held by federal authorities creates a split in the circuits; the U.S. Court of Appeals in Cincinnati (6th Cir.) held in 1996 that there was no recognizable personal privacy interest in such photographs.

Theodore Karantsalis requested access to the mug shots of Luis Giro, a wealthy former president of his own investment firm who pleaded guilty in 2009 to securities fraud. After having his request denied by the U.S. Marshal’s Service, Karantsalis represented himself before the federal district court before obtaining counsel to face the court of appeals.

The appeals court did not issue its own opinion, but adopted the opinion of the U.S. District Court for the Southern District of Florida, saying it was a “comprehensive and scholarly discussion of the issues and law” that found that mug shot photographs were exempt from the FOIA under Exemption 7(C). That exemption protects from disclosure law enforcement records whose release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The district court held that “a booking photograph is a unique and powerful type of photograph that raises personal privacy interests distinct from normal photographs . . . [it] captures the subject in the vulnerable and embarrassing moments immediately after being accused, taken into custody, and deprived of most liberties.” In addition, the court held there was little public interest in the mug shots beyond “satisfying voyeuristic curiosities.” The court held that the photographs would not provide any information to the public about the operations of the government, which is generally a required showing when requesting records where a privacy interest exists. The court dismissed Karantsalis’ argument that the photographs would inform the public as to whether or not certain people got preferential treatment by the Marshals.

The two appellate court decisions are interesting because they are so divergent, Atlanta attorney Lesli Gaither said. Gaither, an associate attorney at Dow Lohnes, was part of the legal team that represented Karantsalis before the appellate court. The Sixth Circuit found there was no privacy right in the photographs, but the district court found the exact opposite, Gaither said.

Since the Sixth Circuit decision in Detroit Free Press v. Dep’t of Justice in 1996, the U.S. Marshals have followed the practice of releasing mug shots only to requesters who reside within the Sixth Circuit’s jurisdiction.

“I think the Sixth Circuit is right,” Gaither said. “Mug shots should be treated no differently than any other record of the [criminal justice process]. This is someone who has already been [identified] in open court and his picture is already out there.”

Gaither expressed surprise that the 11th Circuit did not take the time to issue its own opinion and address in more detail the Sixth Circuit opinion because the decision creates a conflict.

The issue of access to mug shots made news last month when requests were made to see the mug shots of alleged shooter Jared Lee Loughner. Loughner has been charged with killing six and injuring 13 others in the January Arizona shooting that claimed the life of a federal judge and severely injured U.S. Rep. Gabrielle Giffords, D-Ariz.. Loughner’s defense attorneys and the U.S. Marshals Service joined in requesting a federal district court in California — part of the Ninth Circuit — enjoin the release of the photographs after requests for them were received from residents of the Sixth Circuit. After a temporary stay and a hearing on the the issue the court held it did not have the authority to overrule an appellate court decision and the photographs were released later that day.

In 1999, the federal district court for the Eastern District of Louisiana also held that mug shots had significant privacy interests and that the public interest was negligible in Times Picayune Pub. Corp. v. Dep’t Of Justice. That case was never appealed to the U.S. Court of Appeals in New Orleans (5th Cir.).

Gaither said there is no decision yet on what the next step for the case will and all options are under consideration. However, the conflict among the circuits is significant and the result is a policy of releasing to some requesters and not all, which creates a bit of a “trap” for the government, she said. “I think even the government would like [the U.S. Supreme Court to take the case] to address the split.”

User send poem with suggestion it describes Ministry of Ethics

Monday, March 14th, 2011

The Examination

 Under the thick beams of that swirly smoking light,          

The black robes are clustering, huddled in together.

Hunching their shoulders, they spread short, broad sleeves          

like night- Black grackles’ wings; then they reach bone-yellow           

   leathery fingers, each to each. And are prepared. Each turns            

His single eye–or since one can’t discern their eyes,

That reflective single, moon-pale disc which burns  

Over each brow–to watch this uncouth shape that lies

Strapped to their table. One probes with his ragged nails   

The slate-sharp calf, explores the thigh and the lean thews

Of the groin. Others raise, red as pirate sails         

His wing, stretching, trying the pectoral sinews.

One runs his finger down the whet of that cruel   

Golden beak, lifts back the horny lids from the eyes,

Peers down in one bright eye malign as a jewel,   

And steps back suddenly. “He is anaesthetized?”

“He is. He is. Yes. Yes.” The tallest of them, bent   

Down by the head, rises: “This drug possesses powers

Sufficient to still all gods in this firmament.

This is Garuda who was fierce. He’s yours for hours.

“We shall continue, please.” Now, once again, he bends    

To the skull, and its clamped tissues.

Into the cranial cavity, he plunges both of his hands

like obstetric forceps and lifts out the great brain,

Holds it aloft, then gives it to the next who stands  

Beside him. Each, in turn, accepts it, although loath,

Turns it this way, that way, feels it between his hands      

Like a wasp’s nest or some sickening outsized growth.

They must decide what thoughts each part of it must think;       

They tap at, then listen beside, each suspect lobe;

Next, with a crow’s quill dipped into India ink,        

Mark on its surface, as if on a map or globe,

Those dangerous areas which need to be excised.

They rinse it, then apply antiseptics to it;

Now silver saws appear which, inch by inch, slice

Through its ancient folds and ridges, like thick suet.

It’s rinsed, dried, and daubed with thick salves. The smoky saws

Are scrubbed, resterilized, and polished till they gleam.

The brain is repacked in its case. Pinched in their claws,    

Glimmering needles stitch it up, that leave no seam.

Meantime, one of them has set blinders to the eyes,          

Inserting light packing beneath each of the ears,

And caulked the nostrils in. One, with thin twine, ties      

The genitals off. With long wood-handled shears,

Another chops pinions out of the scarlet wings.

It’s hoped that with disuse he will forget the sky

Or, at least, in time, learn, among other things,       

To fly no higher than his superiors fly.  

Well; that’s a beginning. The next time, they can split      

His tongue and teach him to talk correctly, can give

Him opinions on fine books and choose clothing fit

For the integrated area where he’ll live.

Their candidate may live to give them thanks one day.      

He will recover and may hope for such success.

He might return to join their ranks. Bowing away,  

They nod, whispering, “One of ours; one of ours. Yes. Yes.”

            – W.D. Snodgrass

2.   .

 

3.    

 

4.   -

 

5.    

 

6.   -

 

     

 

     

 

7. y fingers, each to each. And are prepared. Each turns  

 

8.   His single eye–or since one can’t discern their eyes,

 

9. That reflective single, moon-pale disc which burns  

 

10.   Over each brow–to watch this uncouth shape that lies

 

     

 

     

 

11. Strapped to their table. One probes with his ragged nails  

 

12.   The slate-sharp calf, explores the thigh and the lean thews

 

13. Of the groin. Others raise, red as pirate sails  

 

14.   His wing, stretching, trying the pectoral sinews.

 

     

 

     

 

15. One runs his finger down the whet of that cruel  

 

16.   Golden beak, lifts back the horny lids from the eyes,

 

17. Peers down in one bright eye malign as a jewel,  

 

18.   And steps back suddenly. “He is anaesthetized?”

 

     

 

     

 

19. “He is. He is. Yes. Yes.” The tallest of them, bent  

 

20.   Down by the head, rises: “This drug possesses powers

 

21. Sufficient to still all gods in this firmament.  

 

22.   This is Garuda who was fierce. He’s yours for hours.

 

     

 

     

 

23. “We shall continue, please.” Now, once again, he bends  

 

24.   To the skull, and its clamped tissues. Into the cran-

 

25. ial cavity, he plunges both of his hands  

 

26.   like obstetric forceps and lifts out the great brain,

 

     

 

     

 

27. Holds it aloft, then gives it to the next who stands  

 

28.   Beside him. Each, in turn, accepts it, although loath,

 

29. Turns it this way, that way, feels it between his hands  

 

30.   Like a wasp’s nest or some sickening outsized growth.

 

     

 

     

 

31. They must decide what thoughts each part of it must think;  

 

32.   They tap at, then listen beside, each suspect lobe;

 

33. Next, with a crow’s quill dipped into India ink,  

 

34.   Mark on its surface, as if on a map or globe,

 

     

 

     

 

35. Those dangerous areas which need to be excised.  

 

36.   They rinse it, then apply antiseptics to it;

 

37. Now silver saws appear which, inch by inch, slice  

 

38.   Through its ancient folds and ridges, like thick suet.

 

     

 

     

 

39. It’s rinsed, dried, and daubed with thick salves. The smoky saws  

 

40.   Are scrubbed, resterilized, and polished till they gleam.

 

41. The brain is repacked in its case. Pinched in their claws,  

 

42.   Glimmering needles stitch it up, that leave no seam.

 

     

 

     

 

43. Meantime, one of them has set blinders to the eyes,  

 

44.   Inserting light packing beneath each of the ears,

 

45. And caulked the nostrils in. One, with thin twine, ties  

 

46.   The genitals off. With long wood-handled shears,

 

     

 

     

 

47. Another chops pinions out of the scarlet wings.  

 

48.   It’s hoped that with disuse he will forget the sky

 

49. Or, at least, in time, learn, among other things,  

 

50.   To fly no higher than his superiors fly.

 

     

 

     

 

51. Well; that’s a beginning. The next time, they can split  

 

52.   His tongue and teach him to talk correctly, can give

 

53. Him opinions on fine books and choose clothing fit  

 

54.   For the integrated area where he’ll live.

 

     

 

     

 

55. Their candidate may live to give them thanks one day.  

 

56.   He will recover and may hope for such success.

 

57. He might return to join their ranks. Bowing away,  

 

58.   They nod, whispering, “One of ours; one of ours. Yes. Yes.”

 

  – W.D. Snodgrass

U.S. SUPREME COURT MODIFIES CRAWFORD AND ALLOWS INTRODUCTION OF DYING DECLARATION IN CRIMINAL TRIAL – Scalia livid

Thursday, March 10th, 2011

Michigan v. Bryant, 130 S.Ct. 1685, 176 L.Ed.2d 179 (2010)

   Justice Scalia, dissenting.

        Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U. S. 36 (2004), I dissent.

I

A

        The Confrontation Clause of the Sixth Amendment, made binding on the States by the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy

Page 2

the right… to be confronted with the witnesses against him.” In Crawford, we held that this provision guarantees a defendant his common-law right to confront those “who “bear testimony’” against him. 541 U. S., at 51. A witness must deliver his testimony against the defendant in person, or the prosecution must prove that the witness is unavailable to appear at trial and that the defendant has had a prior opportunity for cross-examination. Id., at 53-54.

        Not all hearsay falls within the Confrontation Clause’s grasp. At trial a witness “bears testimony” by providing “‘[a] solemn declaration or affirmation… for the purpose of establishing or proving some fact.’” Id., at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The Confrontation Clause protects defendants only from hearsay statements that do the same. Davis v. Washington, 547 U. S. 813, 823-824 (2006). In Davis, we explained how to identify testimonial hearsay prompted by police questioning in the field. A statement is testimonial “when the circumstances objectively indicate… that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id., at 822. When, however, the circumstances objectively indicate that the declarant’s statements were “a cry for help [o]r the provision of information enabling officers immediately to end a threatening situation,” id., at 832, they bear little resemblance to in-court testimony. “No ‘witness’ goes into court to proclaim an emergency and seek help.” Id., at 828.

        Crawford and Davis did not address whose perspective matters—the declarant’s, the interrogator’s, or both— when assessing “the primary purpose of [an] interrogation.” In those cases the statements were testimonial from any perspective. I think the same is true here, but because the Court picks a perspective so will I: The declarant’s intent is what counts. In-court testimony is more

Page 3

than a narrative of past events; it is a solemn declaration made in the course of a criminal trial. For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.1 See Friedman, Grappling with the Meaning of “Testimonial,” 71 Brooklyn L. Rev. 241, 259 (2005). That is what distinguishes a narrative told to a friend over dinner from a statement to the police. See Crawford, supra, at 51. The hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.

        A declarant-focused inquiry is also the only inquiry that would work in every fact pattern implicating the Confrontation Clause. The Clause applies to volunteered testimony as well as statements solicited through police interrogation. See Davis, supra, at 822-823, n. 1. An inquiry into an officer’s purposes would make no sense when a declarant blurts out “Rick shot me” as soon as the officer arrives on the scene. I see no reason to adopt a different test—one that accounts for an officer’s intent—when the officer asks “what happened” before the declarant makes his accusation. (This does not mean the interrogator is irrelevant. The identity of an interrogator, and the content and tenor of his questions, can bear upon whether a declarant intends to make a solemn statement, and envisions its use at a criminal trial. But none of this means that the interrogator’s purpose matters.)

        In an unsuccessful attempt to make its finding of emer-

Page 4

gency plausible, the Court instead adopts a test that looks to the purposes of both the police and the declarant. It claims that this is demanded by necessity, fretting that a domestic-violence victim may want her abuser briefly arrested—presumably to teach him a lesson—but not desire prosecution. See ante, at 22. I do not need to probe the purposes of the police to solve that problem. Even if a victim speaks to the police “to establish or prove past events” solely for the purpose of getting her abuser arrested, she surely knows her account is “potentially relevant to later criminal prosecution” should one ensue. Davis, supra, at 822.

        The Court also wrings its hands over the possibility that “a severely injured victim” may lack the capacity to form a purpose, and instead answer questions “reflexive[ly].” Ante, at 22. How to assess whether a declarant with diminished capacity bore testimony is a difficult question, and one I do not need to answer today. But the Court’s proposed answer—to substitute the intentions of the police for the missing intentions of the declarant—cannot be the correct one. When the declarant has diminished capacity, focusing on the interrogators make less sense, not more. The inquiry under Crawford turns in part on the actions and statements of a declarant’s audience only because they shape the declarant’s perception of why his audience is listening and therefore influence his purpose in making the declaration. See 541 U. S., at 51. But a person who cannot perceive his own purposes certainly cannot perceive why a listener might be interested in what he has to say. As far as I can tell, the Court’s substituted-intent theory “has nothing to be said for it except that it can sometimes make our job easier,” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L. P. A., 559 U. S. _, ___ (2010) (SCALIA, J., concurring in part and concurring in judgment) (slip op., at 2).

        The Court claims one affirmative virtue for its focus on

Page 5

the purposes of both the declarant and the police: It “ameliorates problems that… arise” when declarants have “mixed motives.” Ante, at 21. I am at a loss to know how. Sorting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation. And the Court’s solution creates a mixed-motive problem where (under the proper theory) it does not exist—viz., where the police and the declarant each have one motive, but those motives conflict. The Court does not provide an answer to this glaringly obvious problem, probably because it does not have one.

        The only virtue of the Court’s approach (if it can be misnamned a virtue) is that it leaves judges free to reach the “fairest” result under the totality of the circumstances. If the dastardly police trick a declarant into giving an incriminating statement against a sympathetic defendant, a court can focus on the police’s intent and declare the statement testimonial. If the defendant “deserves” to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial. And when all else fails, a court can mix-and-match perspectives to reach its desired outcome. Unfortunately, under this malleable approach “the guarantee of confrontation is no guarantee at all.” Giles v. California, 554 U. S. 353, 375 (2008) (plurality).

B

        Looking to the declarant’s purpose (as we should), this is an absurdly easy case. Roughly 25 minutes after Anthony Covington had been shot, Detroit police responded to a 911 call reporting that a gunshot victim had appeared at a neighborhood gas station. They quickly arrived at the scene, and in less than 10 minutes five different Detroit

Page 6

police officers questioned Covington about the shooting. Each asked him a similar battery of questions: “what happened” and when, App. 39, 126, “who shot” the victim,” id., at 22, and “where” did the shooting take place, id., at 132. See also id., at 113. After Covington would answer, they would ask follow-up questions, such as “how tall is” the shooter, id., at 134, “[h]ow much does he weigh,” ibid. what is the exact address or physical description of the house where the shooting took place, and what chain of events led to the shooting. The battery relented when the paramedics arrived and began tending to Covington’s wounds.

        From Covington’s perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant. He knew the “threatening situation,” Davis, 547 U. S., at 832, had ended six blocks away and 25 minutes earlier when he fled from Bryant’s back porch. See 483 Mich. 132, 135-136, 768 N.W. 2d 65, 67 (2009); App. 105. Bryant had not confronted him face-to-face before he was mortally wounded, instead shooting him through a door. See 483 Mich., at 136-137, 768 N.W. 2d, at 67. Even if Bryant had pursued him (unlikely), and after seeing that Covington had ended up at the gas station was unable to confront him there before the police arrived (doubly unlikely), it was entirely beyond imagination that Bryant would again open fire while Covington was surrounded by five armed police officers. And Coving-ton knew the shooting was the work of a drug dealer, not a spree killer who might randomly threaten others. Id., at 135, 137, 768 N.W. 2d, at 67.

        Covington’s knowledge that he had nothing to fear differs significantly from Michelle McCottry’s state of mind during her “frantic” statements to a 911 operator at issue in Davis, 547 U. S., at 827. Her “call was plainly a call for help against a bona fide physical threat” describing “events as they were actually happening.” Ibid. She did

Page 7

not have the luxuries of police protection and of time and space separating her from immediate danger that Coving-ton enjoyed when he made his statements. See id., at 831.

        Covington’s pressing medical needs do not suggest that he was responding to an emergency, but to the contrary reinforce the testimonial character of his statements. He understood the police were focused on investigating a past crime, not his medical needs. None of the officers asked Covington how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted to administer first aid.2 They instead primarily asked questions with little, if any, relevance to Covington’s dire situation. Police, paramedics, and doctors do not need to know the address where a shooting took place, the name of the shooter, or the shooter’s height and weight to provide proper medical care. Underscoring that Covington understood the officers’ investigative role, he interrupted their interrogation to ask “when is EMS coming?” App. 57. When, in other words, would the focus shift to his medical needs rather than Bryant’s crime?

        Neither Covington’s statements nor the colloquy between him and the officers would have been out of place at a trial; it would have been a routine direct examination. See Davis, 547 U. S., at 830. Like a witness, Covington recounted in detail how a past criminal event began and progressed, and like a prosecutor, the police elicited that account through structured questioning. Preventing the

Page 8

admission of “weaker substitute[s] for live testimony at trial” such as this, id., at 828 (internal quotation marks omitted), is precisely what motivated the Framers to adopt the Confrontation Clause and what motivated our decisions in Crawford and in Hammon v. Indiana, decided with Davis. Ex parte examinations raise the same constitutional concerns whether they take place in a gas-station parking lot or in a police interrogation room.

C

        Worse still for the repute of today’s opinion, this is an absurdly easy case even if one (erroneously) takes the interrogating officers’ purpose into account. The five officers interrogated Covington primarily to investigate past criminal events. None—absolutely none—of their actions indicated that they perceived an imminent threat. They did not draw their weapons, and indeed did not immediately search the gas station for potential shooters.3 To the contrary, all five testified that they questioned Covington before conducting any investigation at the scene. Would this have made any sense if they feared the presence of a shooter? Most tellingly, none of the officers started his interrogation by asking what would have been the obvious first question if any hint of such a fear existed: Where is the shooter?

        But do not rely solely on my word about the officers’ primary purpose. Listen to Sergeant Wenturine, who candidly admitted that he interrogated Covington because he “ha[d] a man here that [he] believe[d] [was] dying [so

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he was] gonna find out who did this, period.” App. 112. In short, he needed to interrogate Covington to solve a crime. Wenturine never mentioned an interest in ending an ongoing emergency.

        At the very least, the officers’ intentions turned investigative during their 10-minute encounter with Covington, and the conversation “evolve[d] into testimonial statements.” Davis, 547 U. S., at 828 (internal quotation marks omitted). The fifth officer to arrive at the scene did not need to run straight to Covington and ask a battery of questions “to determine the need for emergency assistance,” Ibid. He could have asked his fellow officers, who presumably had a better sense of that than Covington— and a better sense of what he could do to assist. No, the value of asking the same battery of questions a fifth time was to ensure that Covington told a consistent story and to see if any new details helpful to the investigation and eventual prosecution would emerge. Having the testimony of five officers to recount Covington’s consistent story undoubtedly helped obtain Bryant’s conviction. (Which came, I may note, after the first jury could not reach a verdict. See 483 Mich., at 137, 768 N.W. 2d, at 67.)

D

        A final word about the Court’s active imagination. The Court invents a world where an ongoing emergency exists whenever “an armed shooter, whose motive for and location after the shooting [are] unknown,… mortally wound[s]” one individual “within a few blocks and [25] minutes of the location where the police” ultimately find that victim. Ante, at 27. Breathlessly, it worries that a shooter could leave the scene armed and ready to pull the trigger again. See ante, at 17-18, 27, 30. Nothing suggests the five officers in this case shared the Court’s

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dystopian4 view of Detroit, where drug dealers hunt their shooting victim down and fire into a crowd of police officers to finish him off, see ante, at 30, or where spree killers shoot through a door and then roam the streets leaving a trail of bodies behind. Because almost 90 percent of murders involve a single victim, 5 it is much more likely— indeed, I think it certain—that the officers viewed their encounter with Covington for what it was: an investigation into a past crime with no ongoing or immediate consequences.

        The Court’s distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in the Court’s imagination, the emergency persisted for confrontation purposes at least until the police learned his “motive for and location after the shooting.” Ante, at 27. It may have persisted in this case until the police “secured the scene of the shooting” two-and-a-half hours later. Ante, at 28. (The relevance of securing the scene is unclear so long as the killer is still at large—especially if, as the Court speculates, he may be a spree-killer.) This is a dangerous definition of emergency. Many individuals who testify against a defendant at trial first offer their accounts to police in the hours after a violent act. If the police can plausibly claim that a “potential threat to… the public” persisted through those first few hours, ante, at 12 (and if the claim is plausible here it is always plau-

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sible) a defendant will have no constitutionally protected right to exclude the uncross-examined testimony of such witnesses. His conviction could rest (as perhaps it did here) solely on the officers’ recollection at trial of the witnesses’ accusations.

        The Framers could not have envisioned such a hollow constitutional guarantee. No framing-era confrontation case that I know of, neither here nor in England, took such an enfeebled view of the right to confrontation. For example, King v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202, 202-203 (K. B. 1779), held inadmissible a mother’s account of her young daughter’s statements “immediately on her coming home” after being sexually assaulted. The daughter needed to testify herself. But today’s majority presumably would hold the daughter’s account to her mother a nontestimonial statement made during an ongoing emergency. She could not have known whether her attacker might reappear to attack again or attempt to silence the lone witness against him. Her mother likely listened to the account to assess the threat to her own safety and to decide whether the rapist posed a threat to the community that required the immediate intervention of the local authorities. Cf. ante, at 29-30. Utter nonsense.

        The 16th-and 17th-century English treason trials that helped inspire the Confrontation Clause show that today’s decision is a mistake. The Court’s expansive definition of an “ongoing emergency” and its willingness to consider the perspective of the interrogator and the declarant cast a more favorable light on those trials than history or our past decisions suggest they deserve. Royal officials conducted many of the ex parte examinations introduced against Sir Walter Raleigh and Sir John Fenwick while investigating alleged treasonous conspiracies of unknown scope, aimed at killing or overthrowing the King. See Brief for National Association of Criminal Defense Law-

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yers as Amicus Curiae 21-22, and n. 11. Social stability in 16th-and 17th-century England depended mainly on the continuity of the ruling monarch, cf. 1 J. Stephen, A History of the Criminal Law of England 354 (1883), so such a conspiracy posed the most pressing emergency imaginable. Presumably, the royal officials investigating it would have understood the gravity of the situation and would have focused their interrogations primarily on ending the threat, not on generating testimony for trial. I therefore doubt that under the Court’s test English officials acted improperly by denying Raleigh and Fenwick the opportunity to confront their accusers “face to face,” id., at 326.

        Under my approach, in contrast, those English trials remain unquestionably infamous. Lord Cobham did not speak with royal officials to end an ongoing emergency. He was a traitor! He spoke, as Raleigh correctly observed, to establish Raleigh’s guilt and to save his own life. See 1 D. Jardine, Criminal Trials 435 (1832). Cobham’s statements, when assessed from his perspective, had only a testimonial purpose. The same is true of Covington’s statements here.

II

A

        But today’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned.

        According to today’s opinion, the Davis inquiry into whether a declarant spoke to end an ongoing emergency or rather to “prove past events potentially relevant to later criminal prosecution,” 547 U. S., at 822, is not aimed at answering whether the declarant acted as a witness. Instead, the Davis inquiry probes the reliability of a declarant’s statements, “[i]mplicit[ly]” importing the excited-

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utterances hearsay exception into the Constitution. Ante, at 14-15. A statement during an ongoing emergency is sufficiently reliable, the Court says, “because the prospect of fabrication… is presumably significantly diminished,” so it “does not [need] to be subject to the crucible of cross-examination.” Id., at 14.

        Compare that with the holding of Crawford: “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U. S., at 68-69. Today’s opinion adopts, for emergencies and faux emergencies at least, the discredited logic of White v. Illinois, 502 U. S. 346, 355-356, and n. 8 (1992), and Idaho v. Wright, 497 U. S. 805, 819-820 (1990). White is, of course, the decision that both Crawford and Davis found most incompatible with the text and history of the Confrontation Clause. See Davis, supra, at 825; Crawford, supra, at 58, n. 8. (This is not to say that that “reliability” logic can actually justify today’s result: Twenty-five minutes is plenty of time for a shooting victim to reflect and fabricate a false story.)

        The Court announces that in future cases it will look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial. Ante, at 11-12. Ohio v. Roberts, 448 U. S. 56 (1980) said something remarkably similar: An out-of-court statement is admissible if it “falls within a firmly rooted hearsay exception” or otherwise “bears adequate ‘indicia of reliability.’” Id., at 66. We tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause. See 541 U. S., at 54, 60, 63-65, 6768. The arguments in Raleigh’s infamous 17th-century treason trial contained full debate about the reliability of Lord Cobham’s ex parte accusations, see Raleigh’s Case,

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        2 How. St. Tr. 1, 14, 17, 19-20, 22-23, 29 (1603); that case remains the canonical example of a Confrontation Clause violation, not because Raleigh should have won the debate but because he should have been allowed cross-examination.

        The Court attempts to fit its resurrected interest in reliability into the Crawford framework, but the result is incoherent. Reliability, the Court tells us, is a good indicator of whether “a statement is… an out-of-court substitute for trial testimony.” Ante, at 11. That is patently false. Reliability tells us nothing about whether a statement is testimonial. Testimonial and nontestimonial statements alike come in varying degrees of reliability. An eyewitness’s statements to the police after a fender-bender, for example, are both reliable and testimonial. Statements to the police from one driver attempting to blame the other would be similarly testimonial but rarely reliable.

        The Court suggests otherwise because it “misunderstands the relationship” between qualification for one of the standard hearsay exceptions and exemption from the confrontation requirement. Melendez-Diaz v. Massachusetts, 557 U. S._, _(2009) (slip op., at 18). That relationship is not a causal one. Hearsay law exempts business records, for example, because businesses have a financial incentive to keep reliable records. See Fed. Rule Evid. 803(6). The Sixth Amendment also generally admits business records into evidence, but not because the records are reliable or because hearsay law says so. It admits them “because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not” weaker substitutes for live testimony. Melendez-Diaz, 557 U. S., at ___ (slip op., at 18). Moreover, the scope of the exemption from confrontation and that of the hearsay exceptions also are not always coextensive. The reliability logic of the

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business-record exception would extend to records maintained by neutral parties providing litigation-support services, such as evidence testing. The Confrontation Clause is not so forgiving. Business records prepared specifically for use at a criminal trial are testimonial and require confrontation. See ibid.

        Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or to confess that only the Justices’ preference really matters.

B

        The Court recedes from Crawford in a second significant way. It requires judges to conduct “open-ended balancing tests” and “amorphous, if not entirely subjective,” inquiries into the totality of the circumstances bearing upon reliability. 541 U. S., at 63, 68. Where the prosecution cries “emergency,” the admissibility of a statement now turns on “a highly context-dependent inquiry,” ante, at 16, into the type of weapon the defendant wielded, see ante, at 17; the type of crime the defendant committed, see ante, at 12, 16-17; the medical condition of the declarant, see ante, at 17-18; if the declarant is injured, whether paramedics have arrived on the scene, see ante, at 20; whether the encounter takes place in an “exposed public area,” ibid.; whether the encounter appears disorganized, see ibid.; whether the declarant is capable of forming a purpose, see ante, at 22; whether the police have secured the scene of

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the crime, see ante, at 28; the formality of the statement, see ante, at 19; and finally, whether the statement strikes us as reliable, see ante, at 11-12, 14-15. This is no better than the nine-factor balancing test we rejected in Crawford, 541 U. S., at 63. I do not look forward to resolving conflicts in the future over whether knives and poison are more like guns or fists for Confrontation Clause purposes, or whether rape and armed robbery are more like murder or domestic violence.

        It can be said, of course, that under Crawford analysis of whether a statement is testimonial requires consideration of all the circumstances, and so is also something of a multifactor balancing test. But the “reliability” test does not replace that analysis; it supplements it. As I understand the Court’s opinion, even when it is determined that no emergency exists (or perhaps before that determination is made) the statement would be found admissible as far as the Confrontation Clause is concerned if it is not testimonial.

        In any case, we did not disavow multifactor balancing for reliability in Crawford out of a preference for rules over standards. We did so because it “d[id] violence to” the Framers’ design. Id., at 68. It was judges’ open-ended determination of what was reliable that violated the trial rights of Englishmen in the political trials of the 16th and 17th centuries. See, e.g., Throckmorton’s Case, 1 How. St. Tr. 869, 875-876 (1554); Raleigh’s Case, 2 How. St. Tr., at 15-16, 24. The Framers placed the Confrontation Clause in the Bill of Rights to ensure that those abuses (and the abuses by the Admiralty courts in colonial America) would not be repeated in this country. Not even the least dangerous branch can be trusted to assess the reliability of uncross-examined testimony in politically charged trials or trials implicating threats to national security. See Crawford, supra, at 67-68; cf. Hamdi v. Rumsfeld, 542 U. S. 507, 576-578 (2004) (SCALIA, J., dissenting).

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        Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law.

        For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

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        Justice Ginsburg, dissenting.

        I agree with JUSTICE SCALIA that Covington’s statements were testimonial and that “[t]he declarant’s intent is what counts.” Ante, at 2 (dissenting opinion). Even if the interrogators’ intent were what counts, I further agree, Covington’s statements would still be testimonial. Ante, at 8. It is most likely that “the officers viewed their encounter with Covington [as] an investigation into a past crime with no ongoing or immediate consequences.” Ante, at 10. Today’s decision, JUSTICE SCALIA rightly notes, “creates an expansive exception to the Confrontation Clause for violent crimes.” Ibid. In so doing, the decision confounds our recent Confrontation Clause jurisprudence, ante, at 12, which made it plain that “[r]eliability tells us nothing about whether a statement is testimonial,” ante, at 14 (emphasis deleted).

        I would add, however, this observation. In Crawford v. Washington, 541 U. S. 36, 56, n. 6 (2004), this Court noted that, in the law we inherited from England, there was a well-established exception to the confrontation requirement: The cloak protecting the accused against admission of out-of-court testimonial statements was removed for dying declarations. This historic exception, we recalled in Giles v. California, 554 U. S. 353, 358 (2008); see id., at 361-362, 368, applied to statements made by a person

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about to die and aware that death was imminent. Were the issue properly tendered here, I would take up the question whether the exception for dying declarations survives our recent Confrontation Clause decisions. The Michigan Supreme Court, however, held, as a matter of state law, that the prosecutor had abandoned the issue. See 483 Mich. 132, 156-157, 768 N. W. 2d 65, 78 (2009). The matter, therefore, is not one the Court can address in this case.

U.S. SUPREME COURT MODIFIES CRAWFORD AND ALLOWS INTRODUCTION OF DYING DECLARATION IN CRIMINAL TRIAL – Scalia livid

Thursday, March 10th, 2011

Michigan v. Bryant, 130 S.Ct. 1685, 176 L.Ed.2d 179 (2010)

   Justice Scalia, dissenting.

        Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort. Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U. S. 36 (2004), I dissent.

I

A

        The Confrontation Clause of the Sixth Amendment, made binding on the States by the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy

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the right… to be confronted with the witnesses against him.” In Crawford, we held that this provision guarantees a defendant his common-law right to confront those “who “bear testimony’” against him. 541 U. S., at 51. A witness must deliver his testimony against the defendant in person, or the prosecution must prove that the witness is unavailable to appear at trial and that the defendant has had a prior opportunity for cross-examination. Id., at 53-54.

        Not all hearsay falls within the Confrontation Clause’s grasp. At trial a witness “bears testimony” by providing “‘[a] solemn declaration or affirmation… for the purpose of establishing or proving some fact.’” Id., at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The Confrontation Clause protects defendants only from hearsay statements that do the same. Davis v. Washington, 547 U. S. 813, 823-824 (2006). In Davis, we explained how to identify testimonial hearsay prompted by police questioning in the field. A statement is testimonial “when the circumstances objectively indicate… that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Id., at 822. When, however, the circumstances objectively indicate that the declarant’s statements were “a cry for help [o]r the provision of information enabling officers immediately to end a threatening situation,” id., at 832, they bear little resemblance to in-court testimony. “No ‘witness’ goes into court to proclaim an emergency and seek help.” Id., at 828.

        Crawford and Davis did not address whose perspective matters—the declarant’s, the interrogator’s, or both— when assessing “the primary purpose of [an] interrogation.” In those cases the statements were testimonial from any perspective. I think the same is true here, but because the Court picks a perspective so will I: The declarant’s intent is what counts. In-court testimony is more

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than a narrative of past events; it is a solemn declaration made in the course of a criminal trial. For an out-of-court statement to qualify as testimonial, the declarant must intend the statement to be a solemn declaration rather than an unconsidered or offhand remark; and he must make the statement with the understanding that it may be used to invoke the coercive machinery of the State against the accused.1 See Friedman, Grappling with the Meaning of “Testimonial,” 71 Brooklyn L. Rev. 241, 259 (2005). That is what distinguishes a narrative told to a friend over dinner from a statement to the police. See Crawford, supra, at 51. The hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.

        A declarant-focused inquiry is also the only inquiry that would work in every fact pattern implicating the Confrontation Clause. The Clause applies to volunteered testimony as well as statements solicited through police interrogation. See Davis, supra, at 822-823, n. 1. An inquiry into an officer’s purposes would make no sense when a declarant blurts out “Rick shot me” as soon as the officer arrives on the scene. I see no reason to adopt a different test—one that accounts for an officer’s intent—when the officer asks “what happened” before the declarant makes his accusation. (This does not mean the interrogator is irrelevant. The identity of an interrogator, and the content and tenor of his questions, can bear upon whether a declarant intends to make a solemn statement, and envisions its use at a criminal trial. But none of this means that the interrogator’s purpose matters.)

        In an unsuccessful attempt to make its finding of emer-

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gency plausible, the Court instead adopts a test that looks to the purposes of both the police and the declarant. It claims that this is demanded by necessity, fretting that a domestic-violence victim may want her abuser briefly arrested—presumably to teach him a lesson—but not desire prosecution. See ante, at 22. I do not need to probe the purposes of the police to solve that problem. Even if a victim speaks to the police “to establish or prove past events” solely for the purpose of getting her abuser arrested, she surely knows her account is “potentially relevant to later criminal prosecution” should one ensue. Davis, supra, at 822.

        The Court also wrings its hands over the possibility that “a severely injured victim” may lack the capacity to form a purpose, and instead answer questions “reflexive[ly].” Ante, at 22. How to assess whether a declarant with diminished capacity bore testimony is a difficult question, and one I do not need to answer today. But the Court’s proposed answer—to substitute the intentions of the police for the missing intentions of the declarant—cannot be the correct one. When the declarant has diminished capacity, focusing on the interrogators make less sense, not more. The inquiry under Crawford turns in part on the actions and statements of a declarant’s audience only because they shape the declarant’s perception of why his audience is listening and therefore influence his purpose in making the declaration. See 541 U. S., at 51. But a person who cannot perceive his own purposes certainly cannot perceive why a listener might be interested in what he has to say. As far as I can tell, the Court’s substituted-intent theory “has nothing to be said for it except that it can sometimes make our job easier,” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L. P. A., 559 U. S. _, ___ (2010) (SCALIA, J., concurring in part and concurring in judgment) (slip op., at 2).

        The Court claims one affirmative virtue for its focus on

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the purposes of both the declarant and the police: It “ameliorates problems that… arise” when declarants have “mixed motives.” Ante, at 21. I am at a loss to know how. Sorting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation. And the Court’s solution creates a mixed-motive problem where (under the proper theory) it does not exist—viz., where the police and the declarant each have one motive, but those motives conflict. The Court does not provide an answer to this glaringly obvious problem, probably because it does not have one.

        The only virtue of the Court’s approach (if it can be misnamned a virtue) is that it leaves judges free to reach the “fairest” result under the totality of the circumstances. If the dastardly police trick a declarant into giving an incriminating statement against a sympathetic defendant, a court can focus on the police’s intent and declare the statement testimonial. If the defendant “deserves” to go to jail, then a court can focus on whatever perspective is necessary to declare damning hearsay nontestimonial. And when all else fails, a court can mix-and-match perspectives to reach its desired outcome. Unfortunately, under this malleable approach “the guarantee of confrontation is no guarantee at all.” Giles v. California, 554 U. S. 353, 375 (2008) (plurality).

B

        Looking to the declarant’s purpose (as we should), this is an absurdly easy case. Roughly 25 minutes after Anthony Covington had been shot, Detroit police responded to a 911 call reporting that a gunshot victim had appeared at a neighborhood gas station. They quickly arrived at the scene, and in less than 10 minutes five different Detroit

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police officers questioned Covington about the shooting. Each asked him a similar battery of questions: “what happened” and when, App. 39, 126, “who shot” the victim,” id., at 22, and “where” did the shooting take place, id., at 132. See also id., at 113. After Covington would answer, they would ask follow-up questions, such as “how tall is” the shooter, id., at 134, “[h]ow much does he weigh,” ibid. what is the exact address or physical description of the house where the shooting took place, and what chain of events led to the shooting. The battery relented when the paramedics arrived and began tending to Covington’s wounds.

        From Covington’s perspective, his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant. He knew the “threatening situation,” Davis, 547 U. S., at 832, had ended six blocks away and 25 minutes earlier when he fled from Bryant’s back porch. See 483 Mich. 132, 135-136, 768 N.W. 2d 65, 67 (2009); App. 105. Bryant had not confronted him face-to-face before he was mortally wounded, instead shooting him through a door. See 483 Mich., at 136-137, 768 N.W. 2d, at 67. Even if Bryant had pursued him (unlikely), and after seeing that Covington had ended up at the gas station was unable to confront him there before the police arrived (doubly unlikely), it was entirely beyond imagination that Bryant would again open fire while Covington was surrounded by five armed police officers. And Coving-ton knew the shooting was the work of a drug dealer, not a spree killer who might randomly threaten others. Id., at 135, 137, 768 N.W. 2d, at 67.

        Covington’s knowledge that he had nothing to fear differs significantly from Michelle McCottry’s state of mind during her “frantic” statements to a 911 operator at issue in Davis, 547 U. S., at 827. Her “call was plainly a call for help against a bona fide physical threat” describing “events as they were actually happening.” Ibid. She did

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not have the luxuries of police protection and of time and space separating her from immediate danger that Coving-ton enjoyed when he made his statements. See id., at 831.

        Covington’s pressing medical needs do not suggest that he was responding to an emergency, but to the contrary reinforce the testimonial character of his statements. He understood the police were focused on investigating a past crime, not his medical needs. None of the officers asked Covington how he was doing, attempted more than superficially to assess the severity of his wounds, or attempted to administer first aid.2 They instead primarily asked questions with little, if any, relevance to Covington’s dire situation. Police, paramedics, and doctors do not need to know the address where a shooting took place, the name of the shooter, or the shooter’s height and weight to provide proper medical care. Underscoring that Covington understood the officers’ investigative role, he interrupted their interrogation to ask “when is EMS coming?” App. 57. When, in other words, would the focus shift to his medical needs rather than Bryant’s crime?

        Neither Covington’s statements nor the colloquy between him and the officers would have been out of place at a trial; it would have been a routine direct examination. See Davis, 547 U. S., at 830. Like a witness, Covington recounted in detail how a past criminal event began and progressed, and like a prosecutor, the police elicited that account through structured questioning. Preventing the

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admission of “weaker substitute[s] for live testimony at trial” such as this, id., at 828 (internal quotation marks omitted), is precisely what motivated the Framers to adopt the Confrontation Clause and what motivated our decisions in Crawford and in Hammon v. Indiana, decided with Davis. Ex parte examinations raise the same constitutional concerns whether they take place in a gas-station parking lot or in a police interrogation room.

C

        Worse still for the repute of today’s opinion, this is an absurdly easy case even if one (erroneously) takes the interrogating officers’ purpose into account. The five officers interrogated Covington primarily to investigate past criminal events. None—absolutely none—of their actions indicated that they perceived an imminent threat. They did not draw their weapons, and indeed did not immediately search the gas station for potential shooters.3 To the contrary, all five testified that they questioned Covington before conducting any investigation at the scene. Would this have made any sense if they feared the presence of a shooter? Most tellingly, none of the officers started his interrogation by asking what would have been the obvious first question if any hint of such a fear existed: Where is the shooter?

        But do not rely solely on my word about the officers’ primary purpose. Listen to Sergeant Wenturine, who candidly admitted that he interrogated Covington because he “ha[d] a man here that [he] believe[d] [was] dying [so

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he was] gonna find out who did this, period.” App. 112. In short, he needed to interrogate Covington to solve a crime. Wenturine never mentioned an interest in ending an ongoing emergency.

        At the very least, the officers’ intentions turned investigative during their 10-minute encounter with Covington, and the conversation “evolve[d] into testimonial statements.” Davis, 547 U. S., at 828 (internal quotation marks omitted). The fifth officer to arrive at the scene did not need to run straight to Covington and ask a battery of questions “to determine the need for emergency assistance,” Ibid. He could have asked his fellow officers, who presumably had a better sense of that than Covington— and a better sense of what he could do to assist. No, the value of asking the same battery of questions a fifth time was to ensure that Covington told a consistent story and to see if any new details helpful to the investigation and eventual prosecution would emerge. Having the testimony of five officers to recount Covington’s consistent story undoubtedly helped obtain Bryant’s conviction. (Which came, I may note, after the first jury could not reach a verdict. See 483 Mich., at 137, 768 N.W. 2d, at 67.)

D

        A final word about the Court’s active imagination. The Court invents a world where an ongoing emergency exists whenever “an armed shooter, whose motive for and location after the shooting [are] unknown,… mortally wound[s]” one individual “within a few blocks and [25] minutes of the location where the police” ultimately find that victim. Ante, at 27. Breathlessly, it worries that a shooter could leave the scene armed and ready to pull the trigger again. See ante, at 17-18, 27, 30. Nothing suggests the five officers in this case shared the Court’s

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dystopian4 view of Detroit, where drug dealers hunt their shooting victim down and fire into a crowd of police officers to finish him off, see ante, at 30, or where spree killers shoot through a door and then roam the streets leaving a trail of bodies behind. Because almost 90 percent of murders involve a single victim, 5 it is much more likely— indeed, I think it certain—that the officers viewed their encounter with Covington for what it was: an investigation into a past crime with no ongoing or immediate consequences.

        The Court’s distorted view creates an expansive exception to the Confrontation Clause for violent crimes. Because Bryant posed a continuing threat to public safety in the Court’s imagination, the emergency persisted for confrontation purposes at least until the police learned his “motive for and location after the shooting.” Ante, at 27. It may have persisted in this case until the police “secured the scene of the shooting” two-and-a-half hours later. Ante, at 28. (The relevance of securing the scene is unclear so long as the killer is still at large—especially if, as the Court speculates, he may be a spree-killer.) This is a dangerous definition of emergency. Many individuals who testify against a defendant at trial first offer their accounts to police in the hours after a violent act. If the police can plausibly claim that a “potential threat to… the public” persisted through those first few hours, ante, at 12 (and if the claim is plausible here it is always plau-

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sible) a defendant will have no constitutionally protected right to exclude the uncross-examined testimony of such witnesses. His conviction could rest (as perhaps it did here) solely on the officers’ recollection at trial of the witnesses’ accusations.

        The Framers could not have envisioned such a hollow constitutional guarantee. No framing-era confrontation case that I know of, neither here nor in England, took such an enfeebled view of the right to confrontation. For example, King v. Brasier, 1 Leach 199, 200, 168 Eng. Rep. 202, 202-203 (K. B. 1779), held inadmissible a mother’s account of her young daughter’s statements “immediately on her coming home” after being sexually assaulted. The daughter needed to testify herself. But today’s majority presumably would hold the daughter’s account to her mother a nontestimonial statement made during an ongoing emergency. She could not have known whether her attacker might reappear to attack again or attempt to silence the lone witness against him. Her mother likely listened to the account to assess the threat to her own safety and to decide whether the rapist posed a threat to the community that required the immediate intervention of the local authorities. Cf. ante, at 29-30. Utter nonsense.

        The 16th-and 17th-century English treason trials that helped inspire the Confrontation Clause show that today’s decision is a mistake. The Court’s expansive definition of an “ongoing emergency” and its willingness to consider the perspective of the interrogator and the declarant cast a more favorable light on those trials than history or our past decisions suggest they deserve. Royal officials conducted many of the ex parte examinations introduced against Sir Walter Raleigh and Sir John Fenwick while investigating alleged treasonous conspiracies of unknown scope, aimed at killing or overthrowing the King. See Brief for National Association of Criminal Defense Law-

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yers as Amicus Curiae 21-22, and n. 11. Social stability in 16th-and 17th-century England depended mainly on the continuity of the ruling monarch, cf. 1 J. Stephen, A History of the Criminal Law of England 354 (1883), so such a conspiracy posed the most pressing emergency imaginable. Presumably, the royal officials investigating it would have understood the gravity of the situation and would have focused their interrogations primarily on ending the threat, not on generating testimony for trial. I therefore doubt that under the Court’s test English officials acted improperly by denying Raleigh and Fenwick the opportunity to confront their accusers “face to face,” id., at 326.

        Under my approach, in contrast, those English trials remain unquestionably infamous. Lord Cobham did not speak with royal officials to end an ongoing emergency. He was a traitor! He spoke, as Raleigh correctly observed, to establish Raleigh’s guilt and to save his own life. See 1 D. Jardine, Criminal Trials 435 (1832). Cobham’s statements, when assessed from his perspective, had only a testimonial purpose. The same is true of Covington’s statements here.

II

A

        But today’s decision is not only a gross distortion of the facts. It is a gross distortion of the law—a revisionist narrative in which reliability continues to guide our Confrontation Clause jurisprudence, at least where emergencies and faux emergencies are concerned.

        According to today’s opinion, the Davis inquiry into whether a declarant spoke to end an ongoing emergency or rather to “prove past events potentially relevant to later criminal prosecution,” 547 U. S., at 822, is not aimed at answering whether the declarant acted as a witness. Instead, the Davis inquiry probes the reliability of a declarant’s statements, “[i]mplicit[ly]” importing the excited-

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utterances hearsay exception into the Constitution. Ante, at 14-15. A statement during an ongoing emergency is sufficiently reliable, the Court says, “because the prospect of fabrication… is presumably significantly diminished,” so it “does not [need] to be subject to the crucible of cross-examination.” Id., at 14.

        Compare that with the holding of Crawford: “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U. S., at 68-69. Today’s opinion adopts, for emergencies and faux emergencies at least, the discredited logic of White v. Illinois, 502 U. S. 346, 355-356, and n. 8 (1992), and Idaho v. Wright, 497 U. S. 805, 819-820 (1990). White is, of course, the decision that both Crawford and Davis found most incompatible with the text and history of the Confrontation Clause. See Davis, supra, at 825; Crawford, supra, at 58, n. 8. (This is not to say that that “reliability” logic can actually justify today’s result: Twenty-five minutes is plenty of time for a shooting victim to reflect and fabricate a false story.)

        The Court announces that in future cases it will look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial. Ante, at 11-12. Ohio v. Roberts, 448 U. S. 56 (1980) said something remarkably similar: An out-of-court statement is admissible if it “falls within a firmly rooted hearsay exception” or otherwise “bears adequate ‘indicia of reliability.’” Id., at 66. We tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause. See 541 U. S., at 54, 60, 63-65, 6768. The arguments in Raleigh’s infamous 17th-century treason trial contained full debate about the reliability of Lord Cobham’s ex parte accusations, see Raleigh’s Case,

Page 14

        2 How. St. Tr. 1, 14, 17, 19-20, 22-23, 29 (1603); that case remains the canonical example of a Confrontation Clause violation, not because Raleigh should have won the debate but because he should have been allowed cross-examination.

        The Court attempts to fit its resurrected interest in reliability into the Crawford framework, but the result is incoherent. Reliability, the Court tells us, is a good indicator of whether “a statement is… an out-of-court substitute for trial testimony.” Ante, at 11. That is patently false. Reliability tells us nothing about whether a statement is testimonial. Testimonial and nontestimonial statements alike come in varying degrees of reliability. An eyewitness’s statements to the police after a fender-bender, for example, are both reliable and testimonial. Statements to the police from one driver attempting to blame the other would be similarly testimonial but rarely reliable.

        The Court suggests otherwise because it “misunderstands the relationship” between qualification for one of the standard hearsay exceptions and exemption from the confrontation requirement. Melendez-Diaz v. Massachusetts, 557 U. S._, _(2009) (slip op., at 18). That relationship is not a causal one. Hearsay law exempts business records, for example, because businesses have a financial incentive to keep reliable records. See Fed. Rule Evid. 803(6). The Sixth Amendment also generally admits business records into evidence, but not because the records are reliable or because hearsay law says so. It admits them “because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not” weaker substitutes for live testimony. Melendez-Diaz, 557 U. S., at ___ (slip op., at 18). Moreover, the scope of the exemption from confrontation and that of the hearsay exceptions also are not always coextensive. The reliability logic of the

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business-record exception would extend to records maintained by neutral parties providing litigation-support services, such as evidence testing. The Confrontation Clause is not so forgiving. Business records prepared specifically for use at a criminal trial are testimonial and require confrontation. See ibid.

        Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or to confess that only the Justices’ preference really matters.

B

        The Court recedes from Crawford in a second significant way. It requires judges to conduct “open-ended balancing tests” and “amorphous, if not entirely subjective,” inquiries into the totality of the circumstances bearing upon reliability. 541 U. S., at 63, 68. Where the prosecution cries “emergency,” the admissibility of a statement now turns on “a highly context-dependent inquiry,” ante, at 16, into the type of weapon the defendant wielded, see ante, at 17; the type of crime the defendant committed, see ante, at 12, 16-17; the medical condition of the declarant, see ante, at 17-18; if the declarant is injured, whether paramedics have arrived on the scene, see ante, at 20; whether the encounter takes place in an “exposed public area,” ibid.; whether the encounter appears disorganized, see ibid.; whether the declarant is capable of forming a purpose, see ante, at 22; whether the police have secured the scene of

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the crime, see ante, at 28; the formality of the statement, see ante, at 19; and finally, whether the statement strikes us as reliable, see ante, at 11-12, 14-15. This is no better than the nine-factor balancing test we rejected in Crawford, 541 U. S., at 63. I do not look forward to resolving conflicts in the future over whether knives and poison are more like guns or fists for Confrontation Clause purposes, or whether rape and armed robbery are more like murder or domestic violence.

        It can be said, of course, that under Crawford analysis of whether a statement is testimonial requires consideration of all the circumstances, and so is also something of a multifactor balancing test. But the “reliability” test does not replace that analysis; it supplements it. As I understand the Court’s opinion, even when it is determined that no emergency exists (or perhaps before that determination is made) the statement would be found admissible as far as the Confrontation Clause is concerned if it is not testimonial.

        In any case, we did not disavow multifactor balancing for reliability in Crawford out of a preference for rules over standards. We did so because it “d[id] violence to” the Framers’ design. Id., at 68. It was judges’ open-ended determination of what was reliable that violated the trial rights of Englishmen in the political trials of the 16th and 17th centuries. See, e.g., Throckmorton’s Case, 1 How. St. Tr. 869, 875-876 (1554); Raleigh’s Case, 2 How. St. Tr., at 15-16, 24. The Framers placed the Confrontation Clause in the Bill of Rights to ensure that those abuses (and the abuses by the Admiralty courts in colonial America) would not be repeated in this country. Not even the least dangerous branch can be trusted to assess the reliability of uncross-examined testimony in politically charged trials or trials implicating threats to national security. See Crawford, supra, at 67-68; cf. Hamdi v. Rumsfeld, 542 U. S. 507, 576-578 (2004) (SCALIA, J., dissenting).

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        Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law.

        For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

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        Justice Ginsburg, dissenting.

        I agree with JUSTICE SCALIA that Covington’s statements were testimonial and that “[t]he declarant’s intent is what counts.” Ante, at 2 (dissenting opinion). Even if the interrogators’ intent were what counts, I further agree, Covington’s statements would still be testimonial. Ante, at 8. It is most likely that “the officers viewed their encounter with Covington [as] an investigation into a past crime with no ongoing or immediate consequences.” Ante, at 10. Today’s decision, JUSTICE SCALIA rightly notes, “creates an expansive exception to the Confrontation Clause for violent crimes.” Ibid. In so doing, the decision confounds our recent Confrontation Clause jurisprudence, ante, at 12, which made it plain that “[r]eliability tells us nothing about whether a statement is testimonial,” ante, at 14 (emphasis deleted).

        I would add, however, this observation. In Crawford v. Washington, 541 U. S. 36, 56, n. 6 (2004), this Court noted that, in the law we inherited from England, there was a well-established exception to the confrontation requirement: The cloak protecting the accused against admission of out-of-court testimonial statements was removed for dying declarations. This historic exception, we recalled in Giles v. California, 554 U. S. 353, 358 (2008); see id., at 361-362, 368, applied to statements made by a person

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about to die and aware that death was imminent. Were the issue properly tendered here, I would take up the question whether the exception for dying declarations survives our recent Confrontation Clause decisions. The Michigan Supreme Court, however, held, as a matter of state law, that the prosecutor had abandoned the issue. See 483 Mich. 132, 156-157, 768 N. W. 2d 65, 78 (2009). The matter, therefore, is not one the Court can address in this case.

Ex-Prosecutor May Face Disbarment – Few Prosecutors Ever Sanctioned for Unethical Conduct by State Bar Associations.

Wednesday, March 9th, 2011

Recent changes by the U.S. Justice Department have ordered that Federal Prosecutors are now subject to state ethical regulation.

Bar regulators asked the District of Columbia’s highest court March 8, to strip G. Paul Howes, a former federal prosecutor, of his law license for “illegal and unethical” conduct in the mid 1990′s.

The charges refer to alleged misuse of thousands of dollars of witness vouchers in high profile homicide cases.   Howes was charged with improperly authorizing payments to informant’s friends and relatives to assist in obtaining testimony. 

The district’s deputy bar counsel urged judges to deal sternly with him over conduct that did “tremendous harm to the criminal justice system.”

There was a fifteen year delay from the date of the charges until the investigation of him began.

A study by USA Today  found that prosecutors face little risk of being punished for unethical conduct.  Only six federal prosecutors faced any type of discipline from the state offices that oversee legal ethics and none was disbarred since 1997.

LEGISLATIVE ETHICS COMMISSION DIRECTOR TONY WILHOITE TAKES EXCEPTION TO LAWREADER ARTICLE – Defends LEC

Wednesday, March 9th, 2011

By LawReader Senior Editor Stan Billingsley

In a phone conversation  with Tony Wilhoite, Executive Director of the Legislative Ethics Commission, we  discussed several recent LawReader articles regarding the LEC.  In the articles we compared the cost of disposing of complaints by the Judicial Conduct Commission versus the costs of the Legislative Ethics Commission.   Wilhoite complained that our articles incorrectly stated some of the facts.

In the LawReader article we quoted John Cheeves of the Lexington Herald-Leader who wrote that in 2009 the annual budget of the LRC was $500,000.  Cheeves reported that over the preceding decade the LRC had handled 21 complaints, found one violation and dismissed 20 complaints.  This case load number as reported by the Herald-Leader therefore averages just over two cases a year.   (The Administrative Office of the Courts reports a budget for the Judicial Conduct Commission of under $200,000 a year.)

Wilhoite pointed out that the Legislative Ethics Commission has a far broader role than just to monitor complaints against legislators.  He said the LEC also monitors the conduct of some 1,300 lobbyists.  He says that the actual case load number reported by the Herald- Leader is therefore grossly under reported.

Wilhoite  pointed out that the Kentucky Legislative Ethics Commission  provides ethics training for legislators and lobbyists, and is extremely busy.  He argues that the fact that there have been no FBI investigations of the legislature in recent years is a testimony to the effectiveness of the work of the LEC.

Wilhoite said that the Kentucky Legislative Ethics laws are recognized as one of the best ethics programs in the United States. 

We invited Director Wilhoite and any members of the LEC to express their opinions to us.  We will publish anything they submit to us on this or any topic.

This author  is concerned that a member of the LEC Commission filed an ethics complaint with the Kentucky Bar Association against a lawyer who wrote a letter to the LEC criticizing one of their rulings.

We do not question the right of the LEC member to file an ethics complaint against an attorney.

 Anyone is entitled to file anything they want.  But we are concerned that the officials of the KBA didn’t see this as a First Amendment issue and instead  began a two year investigation of the attorney, John M. Berry Jr..  

Berry and the ACLU have a Federal lawsuit pending in U.S. District Court over the claim that the actions of the KBA in issuing a Warning Letter to Berry over his letter, written as a citizen, is an infringement of his first amendment rights.

Legislative Ethics Commission cost per complaint is 126 times greater than cost of the Judicial Conduct Ethics Commission

Tuesday, March 8th, 2011

These numbers are stunning.   The cost of the operation of the Legislative Ethics Commission is shocking.   Before reading this you should take a deep breath and sit down for a moment. 

Their single case cost is $250,000.   The cost of judicial ethics reviews is less than $2,000 a case.

The Judicial Conduct Commission is charged with investigating and sanctioning judges and trial commissioners in Kentucky.  Their per case cost is 126th. that of the Legislative Ethics Commission which is supposed to regulate legislators.

The annual budget for the Judicial Conduct Commission for FY 11 is $198,300.  The JCC handles an average of 100 complaints a year at a cost of $1,983 per complaint filed.  (Numbers provided by AOC)

The Legislative Ethics Commission is reported by the Herald Leader to have a budget of $500,000 a year, and over the last decade have averaged only two complaints a year for a cost of $250,000 per complaint.

The JCC monitors some 250 judges, Senior Judges and Trial Commissioners.  The LEC monitors 138 legislators.

The next time I hear a legislator rail against government waste, we will ask him about the LEC operation.

EX PARTE CAFE’ – Do you have one in your county? Let us know.

Tuesday, March 8th, 2011

By Senior Editor Stan Billingsley                                                         March 8, 2011

     Our definition of the term Ex Parte Cafe’:  A practice where a judicial officer improperly discusses the merits of a pending case with one of the attorneys or parties out of the presence of the opposing attorney or party.

     Maybe it’s just chance, but we have heard a lot of rumors about Ex Parte meetings from lawyers in the last month or so.  We have no documentation of these claims and we admit that our reports are nothing but hearsay.

    One report expressed concern when a Federal Judge was seen meeting with a prosecutor during a recent trial.  When asked about it, he bragged he would never talk about it.  

    In one central Kentucky county a Circuit Judge granted a Writ of Prohibition against the District Judge who ruled against the County Attorney.  The County Attorney is the Circuit Judges former assistant.  The unusual court order directed the District Judge  to not hold a pretrial hearing in which the District Judge ordered the arresting police officer to be present.  This does not on its face involve a claim of Ex Parte communications, but is felt by some to hint at a special relationship between a judge and a prosecutor.  We do not allege any impropriety, but we note that someone felt it was enough of a problem to start a rumor about it on Res Ipsa reasoning. 

    Some claims have involved the close relationship of KBA Trial Commissioners with ethics prosecutors representing the KBA.  No proof here, just speculation on the street.  This concern by lawyers appearing before the KBA is heightened by the cloak of secrecy imposed on ethics hearings.  KBA Trial Commissioners who frequently have little or no judicial experience, should be cautious of being seen meeting privately with ethics prosecutors.  Fortunately, we have seen at least two recent cases in which the KBA Trial Commissioner was a retired Judge.  This trend to appoint people with real judicial experience is refreshing.  We hope that trend continues.

    Over the years it has been my experience that most judges are very good about avoiding ex parte communications. I don’t recall one instance of an attorney or  prosecutor attempting to discuss the “merits of the cause” improperly. Nevertheless, it is difficult for a judge not to be socially close to prosecutors and attorneys.  These social relationships are going to happen, but we all should be careful, particularly during a trial or hearing, to avoid social meetings in private with either parties attorney.

    An attorney in Louisville explained, “It makes you kind of sick in the stomach when you see the prosecutor and the judge having lunch together during a trial.”

    I remember one incident when I was a special judge in an Eastern Kentucky county.  At lunch I went to one of the few local restaurants.  The room was packed and only one seat at one table was vacant.  I asked the two gentlemen sitting at the table if I could join them.  I had no idea who they were.   I noticed a stiffness in their demeanor.  They hardly spoke to me at all.  Later I learned that they were representatives of an insurance company who insured the defendant in the case I had just started.  We certainly didn’t discuss the case, but I acknowledge that this might have given the impression of impropriety to others. I decided to bring my lunch and eat in chambers after that incident. Fortunately the case was settled before court resumed.  Only after the settlement did I learn who the men were. 

    The Supreme Court Rule regarding Ex Parte communications states:

SCR 3.130(3.5) Impartiality and decorum of the tribunal

A lawyer shall not:

    (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

    (b) communicate ex parte with such a person as to the merits of the cause except as permitted by law or court order;

           A judge can avoid these rumors by restricting any private meetings with an attorney or party.  Always try to be in the presence of third parties who can serve as witnesses of what was discussed.  You can discuss basketball or NASCAR, but you can’t discuss a pending case.

      Everyone should be aware that any meeting during a trial in which all parties are not present will give rise to suspicion that something improper is being discussed.   If such a meeting occurs the judicial officer should inform the other party who was not present, and confirm to them that the case was not discussed.   If the judge is proactive he may avoid suspicion of his conduct.

   Many years ago when I was a private attorney, I recall that when court was in session that opposing attorneys and judges, who might be best friends, would not meet socially until the trial was over.  That seemed to be a good practice.

    We emphasize that under the newly broadened squeal rule, if a Judge violates SCR 3.130(3.5) the matter should be reported to the Judicial Conduct Commission.  The attorney should be reported to the KBA.

    If you have witnessed an example of a Ex Parte Cafe’ meeting, please let us know.  E-mail: Firstjudge@aol.com.   We caution that if any facts are given identifying any party that we are under the same obligation as other attorneys in reporting any violations of SCR 3.130(3.5).

U.S. SUPREME COURT ASKED TO HEAR CASE INVOLVING STRIP SEARCH AND JAILING OF DEFENDANT WHO HAD PROOF OF PAYMENT OF TRAFFIC FINE IN HIS POCKET. DISCRETIONARY REVIEW FELT LIKELY. If took eight days in jail before he was released.

Monday, March 7th, 2011

By ADAM LIPTAK   WASHINGTON                    March 6, 2011

Albert W. Florence believes that black men who drive nice cars in New Jersey run a risk of being questioned by the police. For that reason, he kept handy a 2003 document showing he had paid a court-imposed fine stemming from a traffic offense, just in case.

It did not seem to help.

In March 2005, Mr. Florence was in the passenger seat of his BMW when a state trooper pulled it over for speeding. His wife, April, was driving. His 4-year-old son, Shamar, was in the back.

The trooper ran a records search, and he found an outstanding warrant based on the supposedly unpaid fine. Mr. Florence showed the trooper the document, but he was arrested anyway.

A failure to pay a fine is not a crime. It is, rather, what New Jersey law calls a nonindictable offense. Mr. Florence was nonetheless held for eight days in two counties on a charge of civil contempt before matters were sorted out.

In the process, he was strip-searched twice.

“Turn around,” he remembered being told while he stood naked before several guards and prisoners. “Squat and cough. Spread your cheeks.”

The treatment stung. “I consider myself a man’s man,” said Mr. Florence, a finance executive for a car dealership. “Six-three. Big guy. It was humiliating. It made me feel less than a man. It made me feel not better than an animal.”

The Supreme Court is likely to decide this month whether to hear Mr. Florence’s case against officials in New Jersey over the searches, and there is reason to think it will.

The federal courts of appeal are divided over whether blanket policies requiring jailhouse strip-searches of people arrested for minor offenses violate the Fourth Amendment. Eight courts have ruled that such searches are proper only if there is a reasonable suspicion that the arrested person has weapons or contraband.

The more recent trend, from appeals courts in Atlanta, San Francisco and Philadelphia, is to allow searches no matter how minor the charge. Some potential examples cited by dissenting judges in those cases: violating a leash law, driving without a license, failing to pay child support.

Although the judges in the majority in Mr. Florence’s case, the one heard in Philadelphia, said they had been presented with no evidence that the searches were needed, they nonetheless ruled that they would not second-guess corrections officials who said they feared that people like Mr. Florence would smuggle contraband into their jails.

The most pertinent Supreme Court decision, Bell v. Wolfish, was decided by a 5-to-4 vote in 1979. It allowed strip-searches of people held at the Metropolitan Correctional Center in New York after “contact visits” with outsiders.

On the one hand, such visits are planned and may provide opportunities for smuggling contraband in a way that unanticipated arrests do not. On the other, as Judge Marvin E. Frankel of Federal District Court in Manhattan wrote in the case in 1977, contact visits take place in front of guards. “The secreting of objects in rectal or genital areas becomes in this situation an imposing challenge to nerves and agility,” Judge Frankel wrote.

The recent decisions allowing strip-searches of all arrestees have said they were authorized by the Supreme Court’s Bell decision. In the Atlanta case, Judge Ed Carnes said that new inmates enter facilities there after “one big and prolonged contact visit with the outside world.”

In Mr. Florence’s case, the majority used interesting reasoning to justify routine strip-searches.

“It is plausible,” Judge Thomas M. Hardiman wrote, “that incarcerated persons will induce or recruit others to subject themselves to arrest on nonindictable offenses to smuggle weapons or other contraband into the facility.”

Mr. Florence’s lawyer, Susan Chana Lask, said that would make sense if her client were “Houdini in reverse” — a master of becoming incarcerated though blameless, in the hope of passing along contraband to confederates waiting for him inside.

In his dissent in Mr. Florence’s case, Judge Louis H. Pollak, a former dean of Yale Law School, was also skeptical of the majority’s theory. “One might doubt,” he wrote, “that individuals would deliberately commit minor offenses such as civil contempt — the offense for which Florence was arrested — and then secrete contraband on their persons, all in the hope that they will, at some future moment, be arrested and taken to jail to make their illicit deliveries.”

In urging the Supreme Court not to hear Mr. Florence’s case, officials from Burlington County, N.J., allowed that “perhaps petitioner’s frustration is understandable.”

But jails are dangerous places, the brief said. “It might even be argued that those arrested on nonindictable or other ‘minor’ offenses would be particularly anxious,” the brief reasoned, to make sure that everyone around them was thoroughly searched.

Mr. Florence’s son has drawn a lesson from what he saw from the back seat in 2005. “If he sees a cop and we’re together,” Mr. Florence testified in 2006, “he still asks, ‘Daddy, are you going to jail?’ ”