Archive for July, 2013

EX JUDGE CLETUS MIRACLE, AND 5 OTHERS COULD BE OUT OF PRISON SOON Awaiting retrial after District Judge Danny Reeves overruled by 6th. Circuit

Wednesday, July 31st, 2013

Published: July 31, 2013
By BRETT BARROUQUERE The_Associated_Press
LOUISVILLE, Ky. — A former judge from southeastern Kentucky and five other people could be released from federal prison soon while awaiting a retrial on charges they engineered a massive vote-buying scheme across three elections.
Federal prosecutors in Lexington told a judge Wednesday they didn’t object to former Clay County Circuit Judge R. Cletus Maricle, one-time county clerk Freddy Thompson and others being freed on bond before their new trial in October.
But the U.S. Attorney’s office is seeking to hold former school superintendent Doug Adams and ex-election officer William E. Stivers in custody because they violated their bond before being tried several years ago.
The U.S. 6th Circuit Court of Appeals overturned the group’s convictions on July 17 after finding that the trial judge committed several errors in handling the case.
The appeals court concluded U.S. District Judge Danny Reeves allowed jurors to hear some evidence that should not have been admitted and erred in his handling of transcripts of secret tape recordings that an informant made during the FBI investigation.
Assistant U.S. Attorney Jason Parman wrote in a motion that the appellate court’s decision will not be challenged
The decision to grant bond rests with U.S. District Judge Karen Caldwell. The defendants who could be released include: Maricle; Thompson; former Magistrate Stanley Bowling; Charles Wayne Jones, who was the county’s Democratic election commissioner; and Bart and Debra Morris, a couple who owned a garbage business that had contracts with Manchester and Clay County.
Stivers and Adams have requested release, but Parman said each violated terms of bond leading up to the first trial on vote fraud charges. Parman said both men had impermissible contact with witnesses.
“This conduct establishes a serious risk that those defendants will obstruct justice and/or intimidate a potential witness,” Parman wrote.
Kent Westberry, the attorney for Adams, said his client had dinner with a potential defense witness during the first trial but did not discuss the case. His bond was later revoked. Westberry said all the factors point to Adams being released — a nonviolent crime, deep roots in the area and his agreeing to return to the prior conditions of bond.
“Finally, as a respected educator who passed all the rigorous screenings demanded of one who works in public education, Adams poses no danger to the community if released,” Westberry said.
Prosecutors argued that the group conspired to spend hundreds of thousands of dollars to buy votes in one of the nation’s poorest counties in 2002, 2004 and 2006. Several other local officials pleaded guilty to vote-buying and corruption charges in related cases.
Reeves handed down lengthy sentences in the case, including 24 years for Maricle, 69, who is being held at a federal prison in Beaumont, Texas, and 20 years for Adams, 61, who is being held at a federal prison in Elkton, Ohio.
Adams, who served as school superintendent from 1999 through 2007, was considered a political boss in Clay County. Maricle served as a judge from 1991 through 2007 and was also considered a political boss. Both men were portrayed by prosecutors as leaders of the conspiracy.
Read more here: http://www.kentucky.com/2013/07/31/2742311/ex-judge-5-others-could-be-out.html#emlnl=PM_update#storylink=cpy

NEW AREA CODE FOR WESTERN KENTUCKY

Wednesday, July 31st, 2013

Transition Begins to New Area Code in Western Kentucky: ‘Permissive dialing’ period in area code 270 paves the way for mandatory 10-digit dialing for local calls beginning in 2014

Press Release Date: Tuesday, July 30, 2013
Contact Information: Andrew Melnykovych
502-782-2564 or 502-564-3940
502-330-5981 (cell)
Andrew.Melnykovych@ky.gov

Telephone customers in western Kentucky soon can begin preparing for the changes that will come early next year when area code 364 is added to the same geographic area as the current area code 270.
Saturday, Aug. 3, marks the start of a six-month “permissive dialing” period during which customers will be able to dial either seven or 10 digits when making local calls in area code 270. Mandatory 10-digit-dialing of local calls begins Feb. 1, 2014.
“The permissive dialing period is intended to allow customers to become accustomed to the new dialing patterns,” Kentucky Public Service Commission (PSC) Chairman David Armstrong said. “They have six months to get used to dialing the area code on all calls and to reprogram phones and other equipment that uses automatic dialing.”
The permissive dialing period allows telecommunication providers to prepare and test equipment in advance of the establishment of the new area code.
An informational video about the permissive dialing period is available on the PSC YouTube channel at http://www.youtube.com/KYPSC.
Area code 364 was created in December 2012 when the PSC decided that the best way to meet the need for more telephone numbers in area code 270 was through the creation of an overlay, which superimposes a new area code over an existing area code.
The overlay option is the least disruptive for all customers and imposes the smallest cost on businesses in the area, the PSC said in its order creating area code 364. This is the first area code in Kentucky created by an overlay.
“An overlay allows everyone who now has an area code 270 phone number to keep that number,” Armstrong said. “The only change is the 10-digit dialing for local calls.”

During the permissive dialing period, all current dialing patterns will remain in place. However, customers who wish to switch to the new dialing patterns may do so. Calls will be connected either way.
Beginning Aug. 3, local calls within area code 270 (as well as local calls to numbers outside area code 270) may be dialed using either 7 or 10 digits – that is, with or without the area code. Dialing 1 for local calls will not be necessary under any circumstance. Local calls will not become long-distance calls.
“One of the critical tasks during the permissive dialing period falls on anyone who uses telephones for critical functions involving health or safety,” Armstrong said.
Emergency response agencies or others who use reverse 911 or other outbound dialing systems should use the time for preparation and testing. Phone-based security systems and medical alert systems also need to be prepared and tested well in advance of the mandatory date so that any problems can be detected and addressed.
In its December order, the PSC noted that public comments received in the case overwhelmingly favored an overlay. The other option was to split area code 270 and designate a portion as area code 364, with both landline and wireless customers in the affected portion required to change their area code as a result.
The PSC noted that area code overlays have become the preferred method for creating new area codes nationwide. Overlays pose the fewest technical issues for implementation by an increasing complex telecommunication industry, the PSC said.
The first numbers using area code 364 may be assigned beginning March 3, 2014. Area code 270 numbers can be assigned after that date, but their availability will depend on how many remain in the inventory of each individual service provider.
Service providers in area code 270 are required by the PSC to educate their customers about the changes resulting from the new area code.
All records in the area code case are available on the PSC website, psc.ky.gov. The case number is 2012-00129.
The PSC is an independent agency attached for administrative purposes to the Energy and Environment Cabinet. It regulates more than 1,500 gas, water, sewer, electric and telecommunication utilities operating in Kentucky and has approximately 90 employees.

TEN THINGS TO KNOW ABOUT KENTUCKY’S NEW AREA CODE

1. All current area code 270 numbers remain unchanged. Everyone with a 270 area code number can keep it. Nobody is required to change their area code or phone number.

2. The overlay affects both landline and wireless services.

3. Area code 364 will be overlaid on top of area code 270. That means that area codes 270 and 364 will occupy the same physical space beginning March 2014.

4. In order to distinguish between phone numbers with area code 270 and those with area code 364, 10-digit dialing will be required for all local calls within the overlay.

5. Ten-digit dialing also will be required for local calls into or out of the overlay in those areas that now allow seven-digit local calling across the area code 270 boundary.

6. Ten-digit dialing means dialing the area code before dialing the number itself – for example: 270-555-1212 or 364-555-1212.

7. Long-distance calls within the overlay will require 11-digit (1-plus) dialing, just as long distance calls to other area codes do now.

8. A transition period, known as permissive dialing, will begin on August 3, 2013 and end on January 31, 2014. During that time, local calls can be made using either seven-digit or 10-digit dialing.

9. On February 1, 2014, 10-digit dialing for local calls will become mandatory in the area code 270/364 territory.

10. Numbers with area code 364 may be distributed beginning March 3, 2014. Telecommunication service providers may continue to distribute 270 numbers for as long as they have any remaining in their inventories.

KY. GOVERNOR IN 1832 ELECTION WON 162% OF THE VOTE IN OLDHAM COUNTY

Wednesday, July 31st, 2013

GOVERNOR JOHN BREATHITT 1832-1834

Kentucky’s tenth governor, John Breathitt won a close election in 1832 in which there were many allegations of fraud. For example, John Breathitt won 162% of the vote in Oldham County.

Breathitt ran for Governor while he served as the Democratic Lt. Governor under Governor Stone Hammer Metcalfe (a Whig). Breathitt was a native of Virginia and served as Deputy Surveyor of Illinois Territory prior to his election as a State Representative from Logan County.

John Breathitt became a national figure in 1833 when he denounced South Carolina’s nullification of the Tariff Acts of 1828 and 1832. This Democratic Governor sent resolutions to the Whig dominated General Assembly denouncing the actions of South Carolina as one which could lead the disunion of the Union and civil war. The General Assembly passed the resolutions which were sent to governors and legislatures throughout the nation. Breathitt gave leadership to the growing sense of union in Kentucky, leading Kentucky to stay in the Union thirty (30) years later. In his January 1, 1834 State of the Commonwealth Message, Breathitt reported that governors from New York, Massachusetts, Maryland, New Jersey, Delaware, Ohio, Alabama and Pennsylvania responded positively to the resolutions.

Breathitt was a supporter of temperance or prohibition and blamed the large number of murders being committed in Kentucky on the consumption of alcoholic beverages.

In 1834, the Commonwealth of Kentucky owned stock in several turnpikes, including the Maysville, Washington, Paris and Lexington Turnpike (the one which went by Governor Metcalfe’s farm in Nicholas County) and the Shelby and Franklin Turnpike which was valued at $134,384.00.

Breathitt has the unfortunate distinction of being the second Kentucky Governor to die in office. On February 21, 1834, John Breathitt died of tuberculosis at the Governor’s Mansion in Frankfort at age 47. He was preceded in death by two wives.

Breathitt County in Eastern Kentucky was named in his honor.

Hon. Dave Kramer Discusses Ky.’s Send A Message Evidence Rule Opening the door

Wednesday, July 31st, 2013

Divided COAKY Panel Finds Defendant Opened The Door to Plaintiff’s “Send a Message” Argument Outside The Context of a Punitive Damages Claim
By Hon. David Kramer | dkramer@dbllaw.com

In Shy v. Walker (issued 7/19/2013; not designated for publication), a panel of the Kentucky Court of Appeals by a vote of 2-1 upheld a $1.3 million jury verdict for the plaintiff in a medical negligence action even though the plaintiff’s lawyer in closing argument asked the jury to “send a message” to the defendant and to health-care providers in the community. The Court held that the argument, “even if improper,” was not grounds for a mistrial or reversal under the circumstances of the case.

Specifically, plaintiff’s counsel asked the jurors to render a verdict that would send a message to those providing emergency care in the community, and asserted that the jurors would “make the community safe” by rendering a verdict against the defendant physician. Plaintiff’s counsel told the jury that they “get to decide what the standard of care for an emergency room medicine specialist is here,” and that the defendant’s version of the standard of care “would put virtually everyone in this community in danger….”

It is interesting to note that the trial court had granted a defense motion in limine to exclude an argument to “send a message” to the defendant. While the Court of Appeals noted that arguments asking the jury to “send a message” are frowned upon in Kentucky (outside the context of a punitive damages claim), the Court held that such arguments do not automatically entitle the intended recipient of the “message” to a mistrial or reversal. The Court of Appeals’ majority concluded that any error in not granting a mistrial for the “send a message” argument was harmless and that the defendant’s counsel had “opened the door” on his closing argument by asking the jury to be proud of the local hospital and consider what it would be like without it. The Court conceded that the standard of care is national, not local, but nevertheless declined to reverse, despite the fact that the jurors were told they could determine what standard they will have in their community, because of the door they felt had been opened by the defendant’s argument.

The argument in question, in appealing to the jurors’ sense of personal and community safety, echoed a plaintiffs’ litigation strategy sometimes referred to as “the reptile,” after the 2009 book Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan. The “reptile” reference comes from the theory that the human brain evolved in stages, and that the reptilian brain — thought to be the earliest part to have developed — instinctively seeks to protect the organism from danger. Defendants, of course, should be on guard for and strenuously challenge introduction of any argument or testimony that appears calculated to give the jury a sense that they have a stake in the outcome of the litigation, as an appeal to “the reptile” is arguably designed to do.

There are several potential saving graces for defendants in the Shy opinion: (1) the decision was not designated for publication, which limits its precedential value; (2) the Court did not say the “send a message” argument was proper, instead upholding the verdict “even if [the arguments were] improper” and invoking the harmless error rule; (3) there was some debate by the Court whether the objection to the plaintiff’s improper closing argument was properly preserved for appeal (notwithstanding the motion in limine and an objection made at the end of the plaintiff’s closing argument); (4) the ruling was based to a large extent on the Court’s determination that the defendant’s lawyer had opened the door (a conclusion the dissent strongly disagreed with); (5) the defendant failed to request a curative admonition from the trial court; and (6) the verdict was 9-3 and there was a well-written dissent, which are factors that should increase the prospects the Kentucky Supreme Court will grant discretionary review.

The Shy v. Walker opinion is not yet final. Nonfinal decisions should not be cited as precedent. Unpublished decisions, once final, may qualify for citation under CR 76.28(4)(c).

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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Nicholas M Nighswander Discusses Kentucky Stand Your Ground Statute

Wednesday, July 31st, 2013

Can You Stand Your Ground in Kentucky?

The George Zimmerman trial and not guilty verdict in Florida has generated all kinds of reaction both pro and con. Many question whether George Zimmerman should have retreated instead of following Trevon Martin, or just the opposite, whether there was no duty to retreat on the part of Trevon Martin when engaged by Mr. Zimmerman. What many of you may not know is that Kentucky has had a self-defense law similar to Florida’s since 2006 under the Justification Chapter of the Penal Code, KRS 503.055(3).

The statute states as follows:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force.

The Kentucky Supreme Court in Jones v. Commonwealth, 366 S.W.3d 376 (2011), reviewed a jury instruction granted the prosecution which stated that the victim had no duty to retreat and could use defensive force if he was on his own property and believed it necessary to defend himself. Appellant – Defendant Jones received a self-defense instruction but was found guilty but mentally ill because the jury was allowed to consider the “no duty to retreat” instruction on behalf of the victim. He received a twenty-five year prison sentence.

The facts of the case are these. Mr. Jones was a 65 year old retired navy veteran living in a trailer. At some time in 2006, Mr. Jones began thinking he was being poisoned by toxic chemicals. Over time, he took steps to protect himself by putting up barbed wire, among other things, and patrolling his property from the roof top of his trailer in a bullet proof vest with a weapon.

At some point, Mr. Jones began suspecting his neighbor Perry Warren was the one poisoning him. On March 3, 2008, Mr. Jones saw Mr. Warren driving home. Mr. Jones got in his truck armed with a hand gun and followed Mr. Warren to his home to ask him some questions about the chemicals. Mr. Jones got out of his truck on Mr. Warren’s property. Mr. Warren, armed with a .22 rifle, told Mr. Jones to leave. Mr. Jones said he just wanted to get things cleared up and said that then Mr. Warren started to back him up. Mr. Jones said he was leaving but wanted to talk. Mr. Jones said that the next thing he heard was a crack, saw Mr. Warren’s rifle, and decided to fire back. Mr. Jones shot back and Mr. Warren died at the scene from receiving five gun shots wounds. Mr. Warren had indeed fired his rifle several times.

Mr. Jones was indicted for murder. At his trial in 2009, the jury was instructed on murder, first degree manslaughter, reckless homicide, insanity, and guilty but mentally ill. The prosecution at the beginning of the trial tried to prevent Mr. Jones from using the defense of self-defense found in KRS 503.055(3), because Mr. Warren was on his own property when the shooting occurred. The trial court allowed Mr. Jones to claim self-defense and the prosecution to counter that Mr. Warren had no duty to retreat on his own property and could defend himself too. As a result, the no duty to retreat instruction was given as a applied to the victim and a guilty verdict rendered. Mr. Jones appealed as a matter of right.

The issue on appeal was whether the victim, through the prosecution, could assert there was no duty to retreat or was the self-defense instruction reserved only to the criminal defendant charged with a crime, in this case Mr. Jones. The Kentucky Supreme Court ruled that it was meant to apply to the conduct of the person who is subject to criminal prosecution as a result of the use of force, and not the victim of such force. As a result, Mr. Jones conviction was reversed for the erroneous instruction and given a new trial.

It does seem from this case decision that if the George Zimmerman case had occurred in Kentucky the result probably would have been the same, not guilty.

The link for this Kentucky Supreme Court Case follows.

http://opinions.kycourts.net/sc/2009-SC-000221-MR.pdf

This case is final and can be cited as legal authority.

For more information about personal legal issues click on Read More

About Our Law Firm

Nicholas M Nighswander PLLC Attorney at Law was established to help clients with their personal legal problems. We do not represent big businesses and corporations. Your legal problem is our problem and we want to have a positive impact with you in doing the best to solve it.

Nicholas M Nighswander PLLC Attorney at Law
(859) 746-1259

Jerry J. Cox, of Mount Vernon, Ky., sworn in as President of the National Association of Criminal Defense Lawyers (NACDL)

Wednesday, July 31st, 2013

Washington, DC (July 29, 2013) – Jerry J. Cox, of Mount Vernon, Ky., was sworn in on Saturday, July 27, as President of the National Association of Criminal Defense Lawyers (NACDL) at its 56th Annual Meeting in San Francisco, California. Mr. Cox has previously served the Association as its President-Elect, First- and Second Vice-President, Treasurer, Secretary, and Parliamentarian, as well as on the Association’s Board of Directors.

Mr. Cox is a sole practitioner based in Mount Vernon, Ky. where he has been practicing criminal defense law for over 40 years. Throughout his career, Mr. Cox has published and lectured extensively on criminal law issues. He is deeply committed to the defense bar and has served on the faculty of the Kentucky Department of Public Advocacy’s (DPA) Trial Practice Institute for many years. In 2002, the Kentucky DPA recognized Mr. Cox’s commitment to criminal defense by awarding him the Nelson Mandela Lifetime Achievement Award.

Mr. Cox is also a Past President of the Kentucky Association of Criminal Defense Lawyers and a member of the American Bar Association (ABA) and Kentucky Bar Association (KBA). He has served on the KBA’s Unauthorized Practice of Law Committee, Criminal Rules Committee, Legislative Committee, Prescription Drug Abuse Task Force and as Chair of the KBA’s Criminal Law Section. In 2004, he received the President’s Special Service Award from the Kentucky Bar Association. He also served on the Kentucky Criminal Justice Council’s Drug Strategy Committee, is chair of the Public Advocacy Commission, and served as president of the Kentucky Bar Foundation. Mr. Cox is certified as a Criminal Specialist by the National Board of Trial Advocacy (NBTA) and, in 2004, he served on the NBTA Board of Examiners.

Mr. Cox is a Life Member of NACDL and in numerous recent years, including 2009, Mr. Cox received NACDL’s President’s Commendation for outstanding service to the goals and objectives of the criminal defense bar and for outstanding service in fighting for the rights of all persons. Mr. Cox has been AV rated by Martindale-Hubbell since 1985 and was recognized in the March 2010 issue of Louisville Magazine as being selected by his peers as a Top Lawyer. Mr. Cox is a 1968 graduate of the University of Kentucky School Of Law and a 1965 graduate of Berea College.

Speaking to the at the annual meeting of the NACDL Membership and Board of Directors in San Francisco, Mr. Cox outlined several goals for the Association and defense bar during his term, including:

“We must expand our advocacy and our commitment to elevate the advocacy of the defense bar on behalf of our returning veterans.”
“I am determined to continue NACDL’s efforts to address disparity in the criminal justice system. I am proud that last year NACDL, with support from the Foundation for Criminal Justice, co-sponsored a major symposium on disparity. It is great timing that the publication of that report coincides with this meeting. That report provides a solid platform for new project and initiatives.”
“We must work to implement NACDL’s policy that no person should ever stand before a court when liberty is at stake or when a conviction may be entered without the assistance of a fully qualified, adequately resourced lawyer.”
In addition to the critical issues of fairness and justice for U.S. military veterans, racial disparity in the American criminal justice system, and the funding and independence of the constitutionally-mandated defense function, newly-installed NACDL President Jerry J. Cox spoke to the need to continue to work to address the ongoing problems of draconian sentencing, including for juveniles; pre-trial justice issues; the innumerable collateral consequences of a criminal conviction and the importance of post-conviction restoration of rights; the disproportionate leverage of prosecutors, its causes and the resulting ‘trial penalty’ that has led to a criminal justice system overwhelmingly administered via the ‘plea bargain’; and the critical importance of support for the Foundation of Criminal Justice.

Contact Information:
Jerry J. Cox
P.O. Box 1350
Mount Vernon, Kentucky 40456-1350
P: 606-256-5111
jcox@kih.net

FANCY FARM SCHEDULE OF EVENTS

Tuesday, July 30th, 2013

Thursday, August 1st
8:00 am Marshall County Democratic Party Golf Tournament
Kentucky Dam Village State Resort Park Golf Course
185 Village Green Circle
Gilbertsville, KY
5:00 pm
Clays for Kids Trap & Skeet Shoot
(Sponsored by State Auditor Adam Edelen and State Rep. Will Coursey)
Calvert City Gun Club
Off I-24 at Exit 27
Calvert City, KY
6:00 pm 8th Annual Alben Barkley Dinner – McCracken County Democratic Party
Walker Hall
229 Madison Street
Paducah, KY
Friday, August 2nd
11:30 am West KY Building Construction Trades Labor Luncheon
Walker Hall
229 Madison Street
Paducah, KY
6:00 pm 18th Annual Marshall County Bean Dinner
Kentucky Dam State Resort Park Convention Center
8682 US Hwy 641 N
Gilbertsville, KY
Saturday, August 3rd
8:00 am Graves County Democratic Breakfast
Mayfield High School Commons
700 Douthitt Street
Mayfield, KY
All Day Fancy Farm Picnic
Speaking begins at 2:00 pm
St Jerome Church
20 KY 339
Fancy Farm, KY

INDIANA FOLLOWS KY. BAR ASSOCIATION AND SEEKS TO PUNISH ATTORNEY FOR HIS FREE SPEECH

Tuesday, July 30th, 2013

A Hearing is scheduled July 30, 2013 about an Indiana lawyer who criticized judge in private e-mail. This is the same rule adpted in Kentucky as SCR 3.130, 8.2. A prosecution of attorney John M. Berry Jr. by the Ky. Bar Association ended up costing them close to $400,000 in attorney fees when the 6th. Circuit ruled in favor of Berry. Unfortunately the 6th. Circuit left the language of the rule intact and Indiana now seeks to silence one of their attorneys. Their upholding of Berry’s motion to dismiss was limited by the “as applied” rule. That means that anytime the KBA and the Ky. Supreme Court wants to….they can sanction an attorney if he makes any statement about a “judge or public legal officer” which they find is “reckless”. It doesn’t matter that the statement is true if they determine the statement is “reckless”.

Calls for the Ky. Supreme Court to follow the lead of Ohio in changing the language of SCR 8.2 have so far been ignored.

It’s hard to tell exactly what happened from these two news articles in the Indiana Lawyer and the Indy Star, but it appears that an Indiana lawyer, Paul Ogden, criticized a judge in private email correspondence to opposing counsel and is now facing disciplinary charges under 8.3. IU-McKinney professor Margaret Tarkington is quoted about lawyers’ First Amendment rights. In the email, the lawyer had said that the judge in the underlying matter:

“should be turned in to the disciplinary commission for how he handled this case. If this case would have been in Marion County with a real probate court with a real judge, the stuff that went on with this case never would have happened.”

Tarkington’s views are captured in this excerpt:

Tarkington, who has written extensively on professional conduct and the free speech rights of attorneys, said Ogden is not alone in finding himself at odds with an attorney disciplinary system for comments that most other citizens are free to make. It is an issue that free speech advocates and legal scholars say is becoming more common — and troubling — across the U.S.

“This really is a problem and not just in Indiana,” Tarkington said. “It is absolutely an encroachment on their (free speech) rights.”

It is not just the attempts to stifle criticism, particularly statements made outside the courtroom, that Tarkington and others find troubling. It also is how the disciplinary process works.

In defamation cases regarding public officials, the First Amendment requires that the victim prove the statement was false and that the speaker knew it was false or entertained serious doubts as to its truth. Yet in many states, attorney discipline cases require the accused to prove their statements are true, which Tarkington opines is in direct violation of established First Amendment law.

Then there’s the reality that, in cases involving criticism of judges, it ultimately is a panel of judges — the Supreme Court in Indiana — that makes the final determination on guilt and punishment.

Unlike other public and elected officials, Tarkington said, judges can insulate themselves from public criticism by the people who know the most about them — attorneys.

SEARCH WARRANT FOR CELL PHONES ISSUE MAY BE HEADED TO U.S. SUPREME COURT

Tuesday, July 30th, 2013

By Joe Palazzolo Federal appeals judges pressed the nation’s top court to resolve a deepening split among their colleagues over whether police need a warrant to search the cell phone of someone under arrest.
In a 2-1 decision in May, the First U.S. Circuit Court of Appeals held that Boston police
needed a warrant to search the cell phone of a man arrested in 2007 for suspected drug
dealing, putting it at odds with several other federal appeals courts as well as
the highest state court in Massachusetts.
Earlier this month, Justice Department lawyers asked the First Circuit to rehear the
case, saying in court papers that the conflicting rulings had sown confusion in the law
enforcement community and created a “substantial and unjustifiable obstacle to
investigations and prosecutions.”
The court declined on Monday. But at least two First Circuit judges said they voted
against rehearing the case in order to speed its path to the U.S. Supreme Court. . . . .

KY. ATTN. GEN. CONWAY SEEK U.S. SUPREME COURT APPEAL ISSUE OF STUDENTS MIRANDA RIGHTS

Thursday, July 25th, 2013

Attorney General Jack Conway and his Office of Criminal Appeals have asked the United States Supreme Court to review the Kentucky Supreme Court’s decision in the case of N.C. A Child Under Eighteen v. Commonwealth. In the April 25, 2013 decision, the state Supreme Court held that students must be read their Miranda rights when questioned by a school administrator in the presence of a school resource officer when criminal activity might be discovered. The Attorney General’s Office sent the Petition for Writ of Certiorari to the U.S. Supreme Court on July 23, 2013.

In 2009, after a Nelson County High School teacher found a prescription pill bottle for hydrocodone in the boys’ bathroom belonging to a student, a juvenile referred to as “N.C.,” the school’s assistant principal questioned “N.C.” about the incident in the presence of the school resource officer. “N.C” told the assistant principal he had given some of the hydrocodone to another student, which resulted in his expulsion from school and charges of possession and distribution of a controlled substance in Nelson County Juvenile Court.

On April 25, 2013, the Kentucky Supreme Court reversed two lower court rulings in Nelson District and Circuit Courts holding that N.C. was not in custody for Miranda purposes, and therefore, there was no requirement that he be read his rights. The Kentucky Court of Appeals denied discretionary review of the matter.

The Office of the Attorney General is asking the U.S. Supreme Court to review the decision for the following reasons:

• State appellate courts are divided over this issue. States that hold Miranda warnings are required include Georgia, North Carolina, and now Kentucky. States that hold Miranda warnings are not required include South Carolina, Virginia, Florida, Texas, Tennessee, New York, New Mexico, and Louisiana.

• The issue presented is recurring and important as the use of law enforcement officers as a resource in the school setting has become widespread over the last 20 years.

• The Attorney General’s Office maintains that the Kentucky Supreme Court’s decision was in error and that school administrators are not required to advise students of their Miranda rights, merely because a school resource officer may be present, when they are investigating school-related issues.

OHIO COURT OVERRULES PRESS RESTRICTIONS ON JUVENILE HEARING

Thursday, July 25th, 2013

7-23-2013
CINCINNATI (AP) — An Ohio appeals court has ruled a juvenile court judge in contempt for barring Cincinnati Enquirer reporters from covering the cases of six teens charged with beating a man.
The Ohio 1st District Court of Appeals on Tuesday gave Hamilton County Juvenile Judge Tracie Hunter until Thursday afternoon to reverse her earlier order against allowing Enquirer coverage of proceedings. Hunter said Wednesday she will appeal to the Ohio Supreme Court.
Hunter told The Associated Press by telephone that she couldn’t comment on pending cases, but sent a statement that contended she was following court rules and denied disobeying the higher court’s order.
“Judicial officers are held to the highest standards, and in following the rules of the court and the existing laws of the land, while balancing the policies governing the treatment of children, I believe that I have followed the law and upheld my judicial obligations to the public,” she said in her statement.
The Enquirer reports that it considered Hunter’s earlier order against publishing the juveniles’ names, which appeared in police reports, a violation of First Amendment press freedom rights. Editor Carolyn Washburn said The Enquirer is pleased that the judge has been required to comply with the law.
The juveniles were charged last summer with badly beating a man police said they targeted because they were bored. The 46-year-old man, Pat Mahaney, died recently, and prosecutors are waiting for autopsy results on what caused his death before considering whether to seek additional charges against the teens.
Three of the youths have pleaded guilty to felonious assault.
The Enquirer asked the state appeals court to order Hunter to allow its reporters inside her courtroom, and the court said March 29 that Hunter “shall” permit them. The Enquirer said she continued to refuse.
“Her status as a judicial officer does not exempt her from compliance with the court’s order,” Tuesday’s ruling stated.

Jury Duty Scam: Beware!

Tuesday, July 23rd, 2013

JURY DUTY – DO NOT DELETE
Pass this on to your grown children and anyone else you can think of. This has been verified by the FBI. Please pass this on to everyone in your e-mail address book. It is spreading fast so be prepared should you get this call. Most of us take those summonses for jury duty seriously, but enough people skip out on their civic duty that a new and ominous kind of fraud has surfaced.

The caller claims to be a jury duty coordinator. If you protest that you never received a summons for jury duty, the Scammer asks you for your Social Security number and date of birth so he or she can verify the information and cancel the arrest warrant. Give out any of this information and bingo; your identity was just stolen.
The fraud has been reported so far in 11 states, including Oklahoma, Illinois, and Colorado, AZ, OR and more. This (swindle) is particularly insidious because they use intimidation over the phone to try to bully people into giving information by pretending they are with the court system.
The FBI and the federal court system have issued nationwide alerts on their web sites, warning consumers about the fraud

DETERS FILES REPLY BRIEF ON 6th. CIRCUIT APPEAL FOR ATTORNEY MEREDITH LAWRENCE

Tuesday, July 23rd, 2013

Case No. 12-6450
__________________________________________________________________
IN THE
United States Court of Appeals
FOR THE SIXTH CIRCUIT
THE UNITED STATES OF AMERICA,
Appellee.
v.
MEREDITH LAWRENCE,
Defendant-Appellant
_______________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY (REEVES, D.)
__________________________________________________________________
APPELLANT MEREDITH LAWRENCE’S REPLY BRIEF
__________________________________________________________________
Eric C. Deters
Eric C. Deters & Partners, P.S.C.
5247 Madison Pike
Independence, KY 41501
Phone: (859) 363-1900
Fax: (859) 363-1444
eric@ericdeters.com
Counsel for Appellant Meredith
Lawrence

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ii
TABLE OF CONTENTS
TABLE OF CONTENTS ……………………………………………………………………………… ii
TABLE OF AUTHORITIES ………………………………………………………………………… ii
ARGUMENT ………………………………………………………………………………………………. 1
A. The Failure of the Indictment to Descend to Particulars Prejudiced Mr.
Lawrence’s Trial when it Allowed Mr. Lawrence to be Tried on Multiple False
Statements without Unanimity and Allowed the Government to Introduce
Evidence of Other False Documents not Included in the Indictment ……………….. 1
B. Mr. Lawrence was Subjected to Prejudice by the Indictment ………………….. 9
C. There is No Evidence of a Signature on the 2005 and 2006 Tax Returns for
which Mr. Lawrence was Indicted ……………………………………………………………..13
D. Counsel for the Defendant was Ineffective and the Trial Court has
Adequately Developed the Record ……………………………………………………………..15
CONCLUSION …………………………………………………………………………………………..16
CERTIFICATE OF COMPLIANCE ……………………………………………………………..17
ADDENDUM – DESIGNATION OF APPENDIX CONTENTS ……………………..18
CERTIFICATE OF SERVICE ……………………………………………………………………..18
TABLE OF AUTHORITIES
Cases
Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974)……………………………..16
Russell v United States., 369 U.S. 749, 770 (1962) …………………………………………… 3
See United States v. Larson, 612 F.2d 1301 (8th Cir. 1979) ………………………………. 6
U.S. v. Mohney, 949 F.2d 1397, 1407 (6th Cir. 1991) ……………………………………….. 1
United States v. Adams, 314 F App’x 633 (5th Cir. 2009) …………………………………. 8
United States v. Beeler, 587 F.2d 340 (6th Cir. 1979) ……………………………………….. 7
United States v. Cashio, 420 F.2d 1132 (5th Cir. 1990) …………………………………….. 8
United States v. Cruikshank, 92 U.S. 542, (1875) …………………………………………….. 3
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iii
United States v. Cseplo, 42 F.3d 360 (6th Cir. 1994) ………………………………………… 6
United States v. Currier, 166 F.2d 346 (1st Cir. 1948) ……………………………………… 6
United States v. Davis, 226 F.2d 331, 335 (6th Cir. 1955) ………………………………..10
United States v. Duncan, 850 F.2d 1104 (6th Cir. 1988) ………………………………..3, 4
United States v. Fawaz, 881 F.2d 259, 265 (6th Cir. 1989) ………………………………13
United States v. Fraduy, 456 U.S. 152 (1982) …………………………………………………16
United States v. Hess, 124 U.S. 483 (1888) ……………………………………………………… 3
United States v. Kramer, 955 F.2d 479 (7th Cir. 1990) ……………………………………… 8
United States v. Kruse, 2009 WL 1514408 at *2 (E.D. Wis. May 30, 2009) ………14
United States v. Lodwick, 410 F.2d 1202, 1205-06 (8th Cir. 1969) …………………….. 6
United States v. Massaro, 538 U.S. 500, 508 (2003) ……………………………………….15
United States v. Miller, 471 U.S. 130, 140(1985) …………………………………………….. 5
United States v. Miller, 545 F.2d 1204 (9th Cir. 1976) ……………………………………… 8
United States v. Superior Growers Supply, 982 F.2d 173, 176 (6th Cir. 1993) …….. 2
United States v. Walsh, 194 F.3d 37, 44 (2nd Cir. 1999) …………………………………… 3
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1
ARGUMENT

A. The Failure of the Indictment to Descend to Particulars Prejudiced Mr.
Lawrence’s Trial when it Allowed Mr. Lawrence to be Tried on
Multiple False Statements without Unanimity and Allowed the
Government to Introduce Evidence of Other False Documents not
Included in the Indictment

The indictment, under which Mr. Lawrence was charged, failed to descend
to particulars and denied Mr. Lawrence from having access to Constitutional
protections. The government contends that the indictment was sufficient and that
the five separate categories of income introduced by the government do not
constitute a variation or amendment of the indictment because of the generalized
terms used in the indictment. The government also indicates that included in the
evidence at trial are six other tax forms signed by Mr. Lawrence under penalties of
perjury, but not the subject of the indictment.

In an attempt to bolster its position, the government claims that the only
thing that an indictment for a 7206(1) violation must include are all of the elements
of the crime. (Government’s Brief, p. 22). However, Mohney, the case cited by the
government, dealt with sufficiency of the evidence, not the sufficiency of the
indictment. See U.S. v. Mohney, 949 F.2d 1397, 1407 (6th Cir. 1991). What is
obvious is that an indictment alleging that a defendant prepared a false tax return,
without more factual information, is not sufficient. See United States v. Cochrane,
985 F.2d 1027, 1031 (9th Cir.1993).
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Further, this Court has cautioned that while the “language of the statute may
be used in the general description of the offense,” it nonetheless “must be
accompanied with such a statement of the facts and circumstances as will inform
the accused of the specific offense … with which he is charged.” United States v.
Superior Growers Supply, 982 F.2d 173, 176 (6th Cir. 1993). The allegation that
Mr. Lawrence misstated his Adjusted Gross Income or Taxable Income does no
better job to apprise Mr. Lawrence of the claims brought against him than if the
indictment solely alleged that Mr. Lawrence filed a false form 1040.
Due to the general nature of the allegations that Mr. Lawrence understated
his AGI, the government was permitted to present any and all proof of any of the
combination of thirty different false statements, and the fact that the government
rested on five separate sources of income does not lead to an amended or
duplicitous indictment. The government states as much in its response brief.
(Government’s Brief, p. 29). This is not merely the use of multiple corroborative
methods of proof, this was evidence of five separate types of income, each of
which had its own place on Mr. Lawrence’s tax return. This lack of specificity in
the indictment ultimately led to a variance or constructive amendment of the
indictment.
The Indictment Clause of the Fifth Amendment requires that an indictment
contain some amount of factual particularity to ensure that the prosecution will not
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fill in elements of its case with facts other than those considered by the grand
jury.” United States v. Walsh, 194 F.3d 37, 44 (2nd Cir. 1999).
To allow the prosecutor, or the court, to make a subsequent guess as
to what was in the minds of the grand jury at the time they returned
the indictment would deprive the defendant of a basic protection
which the guaranty of the intervention of a grand jury was designed to
secure. For a defendant could then be convicted on the basis of facts
not found by, and perhaps not even presented to, the grand jury which
indicted him.

Russell v United States., 369 U.S. 749, 770 (1962). “[W]here the definition of an
offence, whether it be at common law or by statute, includes generic terms, it is not
sufficient that the indictment shall charge the offence in the same generic terms as
in the definition; but it must state the species,-it must descend to particulars.”
United States v. Cruikshank, 92 U.S. 542, (1875). “Undoubtedly, the language of
the statute may be used in the general description of an offense, but it must be
accompanied with such a statement of the facts and circumstances as will inform
the accused of the specific offense, coming under the general description, with
which he is charged.” United States v. Hess, 124 U.S. 483 (1888).
The government, in essence, argues that the gravamen of the crime is the
filing of a false document, but this Court in Duncan has held that the essence of the
statute lies in the willful falsity of the statement. United States v. Duncan, 850 F.2d
1104 (6th Cir. 1988) (Abrogated on other grounds). In making this determination,
the Court noted that the theory of the government’s case in Duncan, and which
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4
mirrors the theory of the government’s case here, is consistent with a tax evasion
charge rather than a 7206(1) charge.

If this were a prosecution for tax evasion under 26 U.S.C. § 7201, the
reasoning would be different. The gist of a tax evasion charge is
willful evasion of tax by filing a return that may involve multiple
complex understatements or omissions made in a course of continuing
conduct. Cf. United States v. Lennon, 246 F.2d 24, 27 (2d Cir.1957)
(separate acts of understatement of income and fraudulent exemptions
named in single count were “different methods by which a single
offense may have been effectuated”).

Id. In contrast, Duncan holds that each separate false statement on an applicable
form requires unanimity. Id.

Mr. Lawrence had trouble gaining access to and understanding exactly what
false statements that he made. In December 2011, Mr. Lawrence requested
discovery of every document upon which the government rested its case and from
which it would present proof. The government responded that there are no specific
forms, filings, or other documents for which Mr. Lawrence was charged and the
government would not provide other specifics or particulars other than that stated
in the indictment. (Exhibit 1, Letter from December 2011). The government never
mentioned any income from corporate or partnership income, or any other forms or
items that “flowed through” to Mr. Lawrence’s personal 1040’s.

Mr. Lawrence rested a portion of his defense in combating the allegations of
a falsely reported deduction for the gift of real estate which Mr. Lawrence had
utilized to reduce his tax liability in 2004, by roughly $750,000. Such a deduction
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would have the effect of making Mr. Lawrence’s adjusted gross income higher
than what he had reported in the 2004 tax year. Yet no evidence was offered during
trial to the effect of this evidence. A conviction that rests, no matter how
comfortably, on proof of another offense cannot stand. United States v. Miller, 471
U.S. 130, 140(1985).

During the Government’s opening statement, the prosecutor almost
immediately indicated the importance of those additional tax returns and the five
sources of income that would be central to the government’s case. (RE 97, p. 1205)
You’re going to hear and see — you’re going to hear evidence
and see other forms that are associated with this 1040, other IRS
forms like Form 1065 and an 1120-S. What’s important for you all to
know is that all of those supporting forms, all of the information on
those forms, all of the income, flowed through to the 1040, which is
where all of Mr. Lawrence’s income should have been reported.
Ladies and gentlemen, these returns that Mr. Lawrence filed
were false, because he collected income generally in the form of cash
from his various businesses that was never reflected in the
QuickBooks accounts, was never provided by Mr. Lawrence to his
CPA and, as a result, never ended up on his tax returns.
Ladies and gentlemen, you’re going hear about five different
sources of income that Mr. Lawrence failed to report.

(RE 97, p. 1205). The six business returns were identified further by detailing the
business entities. All six business returns were not the subject of any Grand Jury
indictment or any alleged ‘perjury’ by the Grand Jury. But the government
continued to place before the jury these unindicted returns, every day of the trial
with testimony and identification and marking them as exhibits.
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False reporting on each of these documents would be a separate crime, as the
forms contain the jurat and could have been indicted separately. The government
hinged its prosecution of Mr. Lawrence on a strategy of diversion, to indict Mr.
Lawrence on his personal tax returns and enter into evidence false statements
contained on other forms for which Mr. Lawrence was not indicted. See United
States v. Larson, 612 F.2d 1301 (8th Cir. 1979); United States v. Lodwick, 410
F.2d 1202, 1205-06 (8th Cir. 1969); United States v. Currier, 166 F.2d 346 (1st
Cir. 1948); United States v. Cseplo, 42 F.3d 360 (6th Cir. 1994).

The “United States Department of Justice Tax Division Criminal Tax
Manual” was updated in 2008 prior to the indictment in this case. Specifically the
manual provides the federal prosecutor with a wide array of various indictment
forms and templates approved and recommended by the DOJ Tax Division.
Chapter twelve of the manual is dedicated to the indictments for False Statements
including 26 U.S.C. § 7206(1). The manual requires that an indictment is to spell
out the ‘specifics’ and the ‘particulars’ of items of income and deductions that are
essential. The government failed to rely on the resources in its control to prosecute
this case. (Exhibit 2, Manual Excerpt).

Further, based on the government’s actions during trial, it would be
impossible for Mr. Lawrence to plead judgment of conviction or acquittal if the
government was to re-try him for statements made on the corporation or business
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returns. The government offered this evidence at trial and still contends that these
documents funneled into Mr. Lawrence’s personal 1040’s. In all likelihood, Mr.
Lawrence was convicted for his signatures affixed to these other returns, especially
considering that no signatures were presented for two of the three years for which
he was indicted.

Mr. Lawrence could also face another trial based on the individual
statements, rather than the AGI. The false statement is the basis of the charge, and
Mr. Lawrence has yet to be indicted for misstating his income from Racers, or
tenant rent, or IOLTA holdings, or PSC income. While he has been effectively
convicted for all of these items, the statement, under the government’s theory, for
which he has been convicted, is a separate statement from the other’s introduced at
trial.

The lack of particularity in the factual assertions in the indictment led to Mr.
Lawrence to being prosecuted for five separate false statements and likely for the
forms, which had separate jurats and signatures, which flowed into his personal
1040’s. An Amendment to an Indictment occurs when there is an alteration, literal
or in effect, in its terms. United States v. Beeler, 587 F.2d 340 (6th Cir. 1979).
“Such amendments are prejudicial per-se and an amended indictment conviction
must be reversed.” Id.
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During the hearing to finalize the jury instruction the government noted that,
“there appears to be a discrepancy in the way the elements of the offense are
broken out.” (RE 105, p. 2733). Mr. Lawrence merely indicated that he preferred
that the instructions track the language of the indictment. (RE 105, p. 2735). At
this point Mr. Lawrence noted the issues in the way the indictment reads as
compared to the evidence produced at trial. (RE 105, p. 2743). It was at this point
that the instruction for count three was changed from taxable income to AGI. A
judicial amendment of the indictment, whether implicit or explicit, is per se
reversible. United States v. Kramer, 955 F.2d 479 (7th Cir. 1990).
The jury instructions also broadened the time element of the offense
charged, removing the time at which Mr. Lawrence was to have known about the
false statement. The date in a 7206(1) case is a critical element of the charge as the
crime is committed when the false statement is made/filed/subscribed to. The false
statement must be known at “the time of signing” the return. See United States v.
Adams, 314 F App’x 633 (5th Cir. 2009); see also United States v. Miller, 545 F.2d
1204 (9th Cir. 1976); and United States v. Cashio, 420 F.2d 1132 (5th Cir. 1990).
The government cites to Hart to rectify the duplicitous amendment to the
indictment by showing that “corroborative methods of proof” are permitted to
prove a tax case. This is misleading, in that Mr. Lawrence in no way is attacking
the method of proof used by the government. Hart addresses corroborative
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methods of proof for a case that an expert would use to show that income was
different than is claimed by a defendant. Importantly, the method of proof chosen
is chosen by the agent, not the prosecutor who decides what information to present.
Here Agent Moening used this method to try to demonstrate that Mr. Lawrence
made false statements about each item of income.

If the government had chosen to introduce evidence about 30 separate items
for each of the 6 unindicted income tax returns, a method of proof would have still
been required to demonstrate that the amounts claimed by any defendant were
false. There is no method of proof issue, the issue is whether the number of
statements used was misleading due to the lack of particularity in the indictment
and the subsequent addition separate false statements. ‘Corroborative Methods’ of
proof employed by case agent Moening has nothing to do with the Adjusted Gross
Income pled as the perjured False Statement on the 1040.

B. Mr. Lawrence was Subjected to Prejudice by the Indictment
As further evidence of prejudice, Mr. Lawrence, during trial, stated that he
was holding all the ‘house fees’ pursuant to the “Safekeeping Ethical Rules” of the
Kentucky Bar Association. If the defendant would have acted otherwise and placed
the funds into his personal possession or placed them into the company PSC
QuickBooks from which they came, he would be subject to professional discipline,
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including potential disbarment, as well as probably guilty of conversion. (RE 101,
p. 2166 – 2168, 2148, 2213, 2214, 2229 & 2226).

The senior partner had requested that Mr. Lawrence hold onto the house fees
as security for the loans that were to be repaid to the lawyer was because this Mr.
Lawrence was trustworthy. Through the years there had been ‘leakage’ or theft of
the house fees when they were held in the company safe on premise at the
partnership. (RE 103, p. 2345). The house fees in this case were not income to
the defendant in any of the indicted years, and had already had taxes paid on them
at the PSC level before being loaned to the Partnership.

Where a taxpayer shows credible defense and proof of relevant issue – i e the
dollars alleged to be income but were in fact paid to him are not taxable, the
burden shifts to the government to overcome the defense. 26 USC § 6221.Money
“becomes income when recipient has such control over it that as a practical matter,
he derives readily recognizable economic value from it.” United States v. Davis,
226 F.2d 331, 335 (6th Cir. 1955). “That occurs when cash is delivered by its
owner to the taxpayer in a manner which allows the recipient freedom to dispose of
it at will.” Id.

Mr. Lawrence had an ethical duty to maintain certain income pursuant to the
‘Safekeeping Rules’ and Fiduciary responsibilities of a lawyer. It is required of a
lawyer in Kentucky to ‘not claim or use’ disputed funds until the litigation is
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finished or the dispute is resolved. Here Mr. Lawrence was involved in a dispute
with a business partner and as such was holding the fees while awaiting the dispute
to resolve. A portion of the government’s evidence that the money was income was
based on a letter that was written in December 2007, about half a year after Mr.
Lawrence filed his 2006 income tax return. Mr. Lawrence’s counsel failed to
object to the introduction of the letter and even further, the government presented
no rebuttal evidence.

Further, Mr. Lawrence gave testimony that the Racer’s house fees were set
aside as security for the loans made to the business and never surpassed the ‘basis’
he had in the partnership, of over $700,000. Any income that Mr. Lawrence
received in the form of Racer’s fees never surpassed the loan basis that he had in
the company. Mr. Lawrence’s expert was not allowed to testify based upon the
untimely disclosure of the testimony, due in large part to the confusion caused by
the indictment. Mr. Lawrence could not decipher what actions he was being
charged with. There was no notice in the indictment and no specifics or particulars
to assist in preparing Mr. Lawrence’s defense.

There was no evidence presented to the jury, other than the CPA who
testified there was no income to Mr. Lawrence from the Racer’s house fees. (RE
105& 103, p. 2669, 2682, 2669, 2630, 2666, 2477, 2481). “An individual has
received income when he gains complete dominion and control over money or
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other property, thereby realizing economic benefit. It does not matter what the
money represents from the standpoint of the company.

Further Mr. Lawrence proscribed from engaging in preparation of tax
documents during the relevant years. As a member of the Kentucky Judiciary
Lawrence was a duly sworn member of the Kentucky Judiciary, a Trial
Commissioner.(RE 101, p. 2212). As such, he was instructed by the Administrative
Office of the Courts that he needed to obtain the services of a tax return preparer
and avoid becoming involved in engaging in preparation of tax returns. This
prohibition on this individual taxpayer is codified/written in the Judicial Ethics
Opinions (JE-5) for the State of Kentucky (RE 101, p. 2085 – 2086). Fulfilling that
duty and his obligation to file federal tax returns Mr. Lawrence retained and hired a
Certified Public Accountant professional to examine, (RE 100, p.1997), correct
(RE 101, p. 2029 – 2033) and oversee the computerized accounting (RE 100, p.
1963) and all tax return, preparation, and filing. (RE 100, p. 1961). Unknown to
Mr. Lawrence, the CPA did not reconcile the various accounts. There was never
any notice of tax due, tax bill, or audit (not even a phone call or letter) about any
inconsistency in any return from any government agency or from anyone else. The
amounts in issue, missed or mistakenly not counted by the CPA equals less than
.005 of 1% of the Gross Revenues for the years at issue. Even with little or no
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rebuttal evidence, Mr. Lawrence was convicted and likely due to the confusion
caused by indictments as presented.

C. There is No Evidence of a Signature on the 2005 and 2006 Tax Returns
for which Mr. Lawrence was Indicted

Contrary to the government’s assertion, it did not provide all supporting
forms signed by Mr. Lawrence during the 2005 and 2006 tax years. Specifically
missing from this list are the form 8879’s for those years. What exhibits 1-15 does
include are forms not subject to the indictment, including for tax year 2003, and
tax forms signed by Mr. Lawrence for his business accounts. This fact only serves
to highlight the fact that there is no evidence that Mr. Lawrence signed forms 8879
for tax years 2005 and 2006. His signature is present for his other returns but is
missing on the forms for which he was indicted.
The government relies on Fawaz, for proposition that 7206(1) does not
require the defendant’s signature to sustain a conviction. (Government Brief, p.
31). Fawaz is an interpretation of Ponder and deals specifically with the signature
as evidence of willfulness or knowledge of falsity. See United States v. Fawaz, 881
F.2d 259, 265 (6th Cir. 1989). What the government tries to hide is the fact that a
signature is still required for 7206(1) to be invoked in the first place. It is Mr.
Lawrence’s position, based on the interpretation of 26 U.S.C. § 6061, that in order
for an electronically signed return to be valid, a taxpayer must conform to the rules
put in place by the IRS for the filing of those forms. The government has failed to
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demonstrate that anyone signed the 2005 and 2006 1040’s because there is no
evidence of compliance with the IRS procedures for filing the returns
electronically. Specifically, the IRS requires that a form 8879 be signed by a
taxpayer, and no 8879’s were introduced into evidence for 2005 and 2006.
Further, the government’s contention that a tax payer’s PIN number serves
as a signature is misplaced, as is the government’s reliance on Kruse. In Kruse, the
defendant did not challenge the use of the PIN, so it was not subject to scrutiny by
the court, and the government placed into evidence forms 8879 for each relevant
year. See United States v. Kruse, 2009 WL 1514408 at *2 (E.D. Wis. May 30,
2009). Kruse only works to strengthen Mr. Lawrence’s position, as the forms 8879
were not entered into evidence for tax years 2005 and 2006. It should be noted that
the government had been investigating Mr. Lawrence since 2007 and was not
indicted until four years later, in 2011, yet still failed to bring these documents for
consideration by the jury.

Further, as indicated in Mr. Lawrence’s principal brief, Mr. Ryan was not
aware that all returns were authorized by Mr. Lawrence’s signature prior to the
filing of the returns. Finally, any assertion that may have been made regarding the
signature of Mr. Lawrence’s 2004 tax return not being valid was simply a
typographical error on part of Mr. Lawrence. The government entered a form 8879
for the tax year 2004 and have satisfied the requirement showing that Mr.
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Lawrence signed this tax form for purposes of 26 U.S.C. § 6061. However the
same cannot be said for tax years 2005 and 2006.
The Court further amended the indictment, when it added the electronic
filing language into the jury instructions for each count. “An authorized Electronic
filing is sufficient to satisfy the 1st element of the crimes(s) charged even if the
income tax return does not contain the defendants actual written signature.” Further
the government claimed that there was a form 8879 for each count, in direct
contradiction to the fact that the government only brought one form 8879 for the
2004 tax year. Additionally this added element uses plural (crimes) which
further bolsters the ‘constructive amendments” of the Business Tax Returns also
being included in each count.

D. Counsel for the Defendant was Ineffective and the Trial Court has
Adequately Developed the Record
It is to the discretion of the Court of Appeals as to whether it will consider
Mr. Lawrence’s claims that his trial counsel was ineffective when the record is
apparent. “Direct review is appropriate where trial counsel is so ineffective and
apparent from the record that appellate counsel may consider it advisable to raise
the issue on direct appeal. United States v. Massaro, 538 U.S. 500, 508 (2003);
United States v. Valdez, 362 F.3d 903 (6th Cir. 2004). It has been held: “When a
2255 petitioner fails to object to alleged errors in his direct criminal appeal he must
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show cause excusing this procedural default and actual prejudice resulting from
alleged errors. United States v. Fraduy, 456 U.S. 152 (1982).
Defense counsel must conscientiously protect his client’s interests by
asserting all apparently substantial defenses available to the defendant in a proper
and timely manner. Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974).
Defense counsel’s performance was so limited that it failed to subject the
prosecutor’s case to meaningful adversarial testing. Id.

CONCLUSION
Mr. Lawrence was subjected to what was likely a purposefully obscure
indictment designed to confound his presentation of a meaningful defense. It is
more than a stretch to indict a person for an act which includes thousands of
combinations of false statements and claim that the defendant was sufficiently
apprised of the conduct he had to defend. Mr. Lawrence was denied the
opportunity to defend against the charges due to the insufficient indictment.

Further, the use of a PIN only serves as a signature when the taxpayer follows all
prescribed regulations set by the IRS. Finally, trial counsel for the Defendant were
clearly ineffective and the Court has sufficient facts to make a determination.

Therefore Mr. Lawrence requests that the Court reverse his conviction.
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CERTIFICATE OF COMPLIANCE
Pursuant to Sixth Circuit Rule 32(a)(7)(c) and Sixth Circuit Rule 32(a), the
undersigned certifies that this brief complies with the type-volume limitations of
Sixth Circuit Rule 32(a)(7)(b). The brief has been prepared in proportional
typeface using Times New Roman 14 point.

Exclusive of the portions of the brief exempted by Sixth Circuit Rule
32(a)(7)(B)(iii), the brief contains 3,940 words. If the Court so requests, the
undersigned will provide an electronic version of the brief and/or a copy of the
word or line printout.

The undersigned understands a material misrepresentation in completing this
certificate or circumvention of the type volume limits in Sixth Circuit Rule
32(a)(7), may result in the Court’s striking the brief and imposing sanctions against
the person signing the brief.

/s/ Eric C. Deters___________
Eric C. Deters
Case: 12-6450 Document: 006111718430 Filed: 06/11/2013 Page: 20 (20 of 30)
18
ADDENDUM – DESIGNATION OF APPENDIX CONTENTS
Defendant-Appellant, pursuant to Rules of Appellate Procedure, Rule 28(d)
and 30(b), hereby designate the following portions of the record below for
inclusion in the Joint Appendix:
Description of Entry Date Docket #
Transcript of Trial Proceedings- Volume II 03/04/2013 97
Transcript of Trial Proceedings- Volume VI 03/08/2013 101
Transcript of Trial Proceedings- Volume VII 03/08/2013 103
Transcript of Trial Proceedings- Volume VIII 03/08/2013 105

CERTIFICATE OF SERVICE
I hereby certify that on June 10, 2013, a true copy of the foregoing corrected
appellate brief has been sent via the Court’s CM/ECF system which will serve all
counsel of record:
/s/ Eric C. Deters___________
Eric C. Deters

Attorney for Defendant
Meredith L. Lawrence
Eric C. Deters & Partners, P.S.C.
5247 Madison Pike
Independence, Kentucky 41051
Tel.: (859) 363-1900
Fax: (859) 363-1444
Email: eric@ericdeters.com

Case: 12-6450 Document: 006111718430 Filed: 06/11/2013 Page: 21 (21 of 30)
Case: 12-6450 Document: 006111718431 Filed: 06/11/2013 Page: 1 (22 of 30)
Case: 12-6450 Document

AUTOMOBILE INSURANCE FOLLOWS CAR….

Tuesday, July 23rd, 2013

RENDERED: JANUARY 11, 2013; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2011-CA-001682-MR
UNIVERSAL UNDERWRITERS
INSURANCE COMPANY APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
v. HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
ACTION NO. 10-CI-01834
BILLIE JO MASTERS; LORI HAYS AS
ADMINISTRATRIX OF THE ESTATE OF
GREGORY HAYS; LORI HAYS AS
GUARDIAN OF KAYLEE AND BAYLEE
HAYS; LORI HAYS; DEBORAH GRIFFITH AS
PERSONAL REPRESENTATIVE OF THE ESTATE
OF ERIC SHANE COX; DEBORAH GRIFFITH;
ROGER MILLION, JR.; ELBY COX; ELBY COX, JR.
AS ADMINISTRATOR OF THE ESTATE OF WILMA
COX; AND ROGER MILLION, JR. APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, LAMBERT AND STUMBO, JUDGES.
STUMBO, JUDGE: Universal Underwriters Insurance Company appeals from an
order of the Madison Circuit Court granting summary judgment in favor of the
Appellees and awarding them $1,300,000. Universal argues that the Appellees are
only entitled to $300,000. We agree with Universal and reverse and remand.
Primarily, this is an auto accident case, but on appeal, the only issue is
how much insurance coverage the Appellees are entitled to receive. The following
facts are not in dispute. On June 3, 2010, a vehicle operated by Wilma Cox was
involved in an auto accident with a vehicle operated by Roger Million, Jr. The
accident resulted in multiple injuries and multiple deaths. Cox was the cause of the
accident. Prior to the accident, Cox had bought the vehicle she was driving from
Delmus Gross, d/b/a Bunt Gross Auto Sales. The paperwork from this sale had not
been completed, nor had the title to the vehicle been transferred; therefore, Gross
and his auto sales company were the owners of the vehicle Cox was driving.1
Gross is insured by Universal. Gross has two types of insurance at
issue here, Auto Hazard Coverage and Commercial Umbrella Coverage. The
parties agree that Universal owes Cox’s estate the policy limit of the Auto Hazard
Coverage in the amount of $300,000. The issue on appeal is whether Universal
owes Cox’s estate $1,000,000 in Commercial Umbrella Coverage. Universal
argues that Cox was not an insured under the Umbrella Coverage, only Mr. Gross,
Emily Gross, and Bunt Gross Auto Sales are. The Appellees argue that Cox
“stands in the shoes” of Gross and his company and is therefore entitled to
1 Mr. Gross and his dealership were not named as defendants in this case.
-2-
coverage. The circuit court found that Cox did stand in the shoes of Gross and was
entitled to coverage based on the cases of Kentucky Farm Bureau Mut. Ins. Co. v.
Shelter Mut. Ins. Co., 326 S.W.3d 803 (Ky. 2010), Gainsco Companies v. Gentry,
191 S.W.3d 633 (Ky. 2006), and McGrew v. Stone, 998, S.W.2d 5 (Ky. 1999). It
also relied on Kentucky Revised Statute (KRS) 186A.220(5). This appeal
followed.
Gross’ Commercial Umbrella Coverage is limited in who it covers.
Generally, it only covers Mr. Gross, Emily Gross, and Bunt Gross Auto Sales.
However, according to the terms of the policy, the only person it covers with
respect to claims involving automobiles is Mr. Gross. Relying on the cases and
statute cited previously, the trial court found that Gross was vicariously liable for
Cox; therefore, Cox “stepped into the shoes of Delmus Gross.” In short, Cox
became Mr. Gross for the purposes of his Commercial Umbrella Coverage. We
find this reasoning was in error.
“Interpretation and construction of an insurance contract is a matter of
law for the court
.” Kemper Nat. Ins. Companies v. Heaven Hill Distilleries, Inc.,
82 S.W.3d 869, 871 (Ky. 2002). This Court reviews issues of law de novo.
Camenisch v. City of Stanford, 140 S.W.3d 1, 3 (Ky. App. 2003). “Where the
terms of an insurance policy are clear and unambiguous, the policy will be
enforced as written.” Kemper, supra. The issue in this case is who did the
insurance policies cover? We find that the cases and statute relied upon by the trial
-3-
court are distinguishable in this instance and the terms of the Commercial
Umbrella Coverage should have been enforced as written.
KRS 186A.220(5) lists the requirements a car dealer must comply
with in order to transfer title and ownership to a buyer. Gainsco stands for the
position that when a dealer fails to strictly comply with the requirements of KRS
186A.220(5), the dealer remains the owner of the vehicle. Gainsco also holds that
because the dealer is still the owner of the automobile, its automobile liability
coverage is the primary insurance should the vehicle become involved in an auto
accident. Kentucky Farm Bureau holds that in the case of an auto accident, the
vehicle’s insurer is the primary insurer and the permissive driver’s insurance is the
excess insurer. Finally, McGrew stands for the position that the owner of an
uninsured automobile is liable for damages when the car is driven by a permissive
user and is involved in an auto accident. In essence, the owner of the vehicle
becomes a de facto self-insurer of the vehicle.
These cases are all distinguishable from the case at hand. They all
hold that the auto insurance flows with the automobile. If the vehicle is insured,
then the owner’s insurance is the primary insurance. If the vehicle is uninsured,
then the owner pays for damages him or herself. They do not hold that the
permissive driver of the vehicle legally becomes the same person as the owner of
the vehicle. In the case sub judice, the car being driven by Cox was insured by
Universal. Gross’ Auto Hazard Coverage specifically insured permissive drivers,
-4-
which Cox was. In addition, permissive drivers are insured by law. See Mitchell
v. Allstate Ins. Co., 244 S.W.3d 59 (Ky. 2008).
On the other hand is the Commercial Umbrella Coverage. This type
of insurance is voluntary and is to provide extra coverage to Mr. Gross and his
business. When it comes to automobiles, the only person the Commercial
Umbrella Coverage insures is Mr. Gross. It does not cover permissive drivers.
Here, the Commercial Umbrella Coverage insurance policy clearly
states that Mr. Gross is the only person covered for damages relating to an
automobile. The Auto Hazard Coverage specifically covers permissive drivers.
These provide two separate and distinct types of coverage. The case law cited
previously and utilized by the Appellees and the trial court does not rewrite the
terms of the policy. Nor does the case law stand for the proposition that Cox
becomes Mr. Gross for the purposes of Universal’s insurance policy. Each
insurance policy only covers whom it says it covers. The Commercial Umbrella
Coverage insurance policy should have been enforced as written.
Universal makes other arguments on appeal. These arguments are
moot because we find that the trial court erred in holding that Cox was insured
under Gross’ Commercial Umbrella Coverage.
Based on the foregoing, we reverse the judgment of the trial court and
hold that Universal is entitled to summary judgment in its favor regarding the
Commercial Umbrella Coverage issue.
-5-
ALL CONCUR.
BRIEFS FOR APPELLANT:
Robert E. Stopher
Robert D. Bobrow
Louisville, Kentucky
BRIEF FOR APPELLEE DEBORAH
GRIFFITH, INDIVIDUALLY AND
AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF ERIC SHANE
COX:
Brent Travelsted
Bowling Green, Kentucky
BRIEF FOR APPELLEE ROGER
MILLION:
Michael F. Eubanks
Richmond, Kentucky
BRIEF FOR APPELLEE BILLIE JO
MASTERS:
Rodney G. Davis
Richmond, Kentucky
BRIEF FOR APPELLEE LORI
HAYS, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE
ESTATE OF GREGORY HAYS
AND AS GUARDIAN FOR
KAYLEE HAYS AND BAYLEE
HAYS:
James T. Gilbert
Richmond, Kentucky
-6-

Former Supreme Court Justice John Paul Stevens took his former colleagues to task for their decision this summer on the Voting Rights Act,

Tuesday, July 23rd, 2013

By TAL KOPAN | 7/22/13 2:50 PM EDT
Former Supreme Court Justice John Paul Stevens took some of his former colleagues to task for their decision this summer on the Voting Rights Act, criticizing the majority that struck down as unconstitutional the pre-clearance part of the landmark civil rights law.

Writing “A Dissent” in The New York Review of Books, Stevens reflected on the book Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracyy, by Gary May, which was released this April. Using May’s account of the events in the South that precipitated the passing of the Voting Rights Act in 1965, Stevens criticized Chief Justice John Roberts’s opinion over its analysis of history, and disputed its rationale for overturning the provision.

“The statistics set forth in Roberts’s recent opinion persuasively explain why a neutral decision-maker could reasonably conclude that at long last the imposition of the preclearance requirement on the states that lost the Civil War—or more precisely continuing to use the formula that in 1965 identified those states—is not justified by the conditions that prevail today. The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court. The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the VRA.

“The several congressional decisions to preserve the preclearance requirement—including its 2006 decision—were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind,” Stevens wrote.

Stevens also quotes extensively from Justice Ruth Bader Ginsburg’s dissent, calling it “eloquent” and “largely unanswered.”

The full piece is here: http://bit.ly/12MtOCI

FOURTH CIRCUIT LIMITS PRESS FREEDOM TO CONCEAL SOURCES

Tuesday, July 23rd, 2013

A Terrible Precedent for Press Freedom
By THE New York Times EDITORIAL BOARD Published: July 22, 2013
An egregious appeals court ruling on Friday has dealt a major setback to press freedoms by requiring the author of a 2006 book to testify in the criminal trial of a former Central Intelligence Agency official charged with leaking classified information. The ruling and the Justice Department’s misplaced zeal in subpoenaing James Risen, the book’s author and a reporter for The Times, carry costs for robust journalism and government accountability that should alarm all Americans.
A federal district judge, Leonie Brinkema, was mindful of those costs two years ago when she ruled that a qualified reporters’ privilege to protect confidential sources, grounded in the First Amendment, applies in criminal cases and declined to compel Mr. Risen to reveal a confidential source in the trial of Jeffrey Sterling, a former C.I.A. employee. The 2-to-1 ruling by the United States Court of Appeals for the Fourth Circuit, which overturned Judge Brinkema’s sound decision, relied on an overly sweeping reading of a murky 41-year-old Supreme Court decision that has been rejected by other federal appellate courts. The ruling also failed to respect the nearly universal consensus among states that there is a common law privilege for protection of reporters’ confidential sources.
The third member of the panel, Judge Roger Gregory, got it right, calling his colleagues decision a real threat to investigative journalism. “Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” Judge Gregory wrote in a forceful dissent. “The majority exalts the interests of the government while unduly trampling those of the press, and, in doing so, severely impinges on the press and the free flow of information in our society.” Judge Gregory found that the government has ample evidence to proceed with the prosecution without forcing a reporter to choose between protecting sources or going to jail.
The precedent set here is especially troubling since the Fourth Circuit, where the ruling applies, includes Maryland and Virginia, home to most national security agencies. If left to stand, it could significantly chill investigative reporting, especially about national security issues.
It was dismaying that the Justice Department issued a statement approving of the court’s wrongheaded legal conclusion barely a week after Attorney General Eric Holder Jr. announced new guidelines that are supposedly designed to better protect the news media from federal investigators in leak cases. But the department also said it was “examining the next steps in the prosecution of this case.” That should include withdrawing its demand that Mr. Risen testify about his sources.
This issue tests the new guidelines and their promise not to threaten journalists with jail for doing their jobs, except in “extraordinary” circumstances. If he has any intention to live up to that pledge, Mr. Holder should reopen the question of Mr. Risen’s subpoena

WHY THE KFC YUM! CENTER WILL FAIL AND LEAVE TAXPAYERS ON THE HOOK – Denis Frankenberger

Saturday, July 20th, 2013

July 20, 2013 By Author – Denis Frankenberger

(The Yum Center in Louisville is claimed to be facing the following problems.)

For more info go to: www.billiondollarbasketball.com

Over $800 million in Debt
 Operating Costs Exceeding $92,000 per Day
 Lease Giving Away Millions to Tenant and Others
 Losing more than $50,000 per day during 2011, more than
$37000 per day during 2012
 More than $30 million in losses since opening
 Financial Impossibility to Succeed
 A Lease that is Choking the Financial Life from the Arena
(unless the Lease is renegotiated)

REDISTRICTING 2.0 SHOULD INCLUDE KENTUCKY’S TRIAL COURTS – Jason Nemes

Thursday, July 18th, 2013

Article submitted by Hon. Jason Nemes:

With the recent Kentucky Supreme Court decision declaring the redistricting package for the state legislature unconstitutional, the General Assembly must redistrict the state during the 2013 session to comply with federal equal protection law and Section 33 of the Constitution of Kentucky. And, in addition to redrawing the legislative lines, it appears that there is interest, once again, to redraw the districts that apply to Supreme Court justices and Court of Appeals judges. (Though the appellate court plan was not challenged, it was voided along with the state legislative plan because it was included in the same bill, which contained a non-severability clause.)

However, redistricting should not stop there. While it is true that federal one-person, one-vote principles do not apply to the judiciary (judges don’t “represent” anyone), judicial and governmental efficiency require significant attention to judicial circuits, which, in many cases, are grossly out of proportion when considering caseloads and population shifts. Redistricting circuit courts would more effectively employ the state’s limited resources and enable expansion of family courts to the rest of the state, among many other benefits.

The Court of Justice is in constant need of additional resources, but some of this is because it is operating in an anachronistic system. The current circuit plan, with its wildly divergent caseloads and populations, is a major impediment to judicial efficiency, and it annually wastes millions of taxpayer dollars. (The antiquated filing system is the other major overhaul necessary to improve Kentucky’s courts. A modern electronic filing system would bring the system into the 21st century while enabling the courts to charge for access to its electronic records and reduce circuit-clerk-staffing needs, which are chronically understaffed in many counties. Of course, this is to say nothing of the benefits such a system would provide the public and the bar.)

The case for re-circuiting is incontrovertible. We have 95 non-family circuit judges across the state, with an average caseload of 1,209 filings per year. However, there are circuits in this state with nearly double the average caseload, and those areas (e.g., Jessamine, Bullitt, and northern Kentucky) are experiencing explosive growth. On the other end of the spectrum, there are circuits with half the average caseload, and those areas are experiencing drastic population decreases (e.g., Floyd, Knott/Magoffin, and far western Kentucky). For example, Floyd County is its own circuit, has three circuit judges (one is a family court judge), lost 7 percent of its population over the past 10 years, and would still be well below the average caseload if it lost one of its circuit judges.

With regard to population, Harlan (29, 278), Perry (28,712), Letcher (24,519), and Bell (28,691)—contiguous counties—is each its own circuit, with a total of four circuit judges. This is two more than their aggregate population would warrant. One suggestion is to combine Bell, Harlan and Letcher counties, keep their three circuit judges, but make one of them a family court judge. Then combine Perry County with Magoffin and Knott, keep their combined two circuit judges and make one of them a family court judge. Currently a family court judge elected in Floyd County covers family court cases in Magoffin and Knott. This judge could be discontinued, since Floyd County currently has about 1.5 more judges than its caseload and population warrants. This proposal would reduce one circuit judge that could be assigned to another area of the state that needs more judges. It would also expand family court to an area badly in need of the focused services provided by these courts.

Fortunately, there is no better time than the 2013 session to address the judicial circuits. Every trial judge in the state will be on the ballot in 2014, as the circuit judges’ eight-year terms and the district judges’ four-year terms come to an end. And to properly address this complex issue, months of study and the interests of numerous constituencies need to be considered. For instance, re-circuiting will affect commonwealth’s attorney, whose districts are the same as the judicial circuits. But commonwealth’s attorneys are on a six-year election cycle as opposed to the eight-year cycle for the circuit judges. Another issue that requires considerable study is the expansion of family courts. But without re-circuiting, it will be effectively impossible to expand family courts to the approximately 25 percent of the population that currently do not have them.

With that in mind, the Kentucky Supreme Court should certify the necessity to “reduce, increase or rearrange” the judicial circuits pursuant to Section 112(2) of the Constitution, and then the Chief Justice and the leaders of the House and Senate should appoint a committee to make recommendations to re-circuit the state. This committee could recommend a few options to re-circuit the Commonwealth, including one limited to addressing the most glaring inefficiencies, such as the one identified above. The result could be either a reduction in the total amount of judges, or, more likely, a better reallocation of the judges currently in existence.

Re-circuiting the Commonwealth’s trial courts is a major undertaking, and it should not be done with haste. However, re-circuiting is long overdue and, because of the upcoming 2014 elections, there is no better time than the 2013 legislative session to get it done.

Caseload statistics may be found at this link: http://courts.ky.gov/NR/rdonlyres/6BC06A12-9779-4710-B578-01E886BBB12A/0/ins015_ci_judge_ranking_bycircuit.pdf

Admittedly, I have focused on southeastern Kentucky, which has the most glaring disparities. But similar problems exist in other places.

KENTUCKY BAR ASSOCATION HOSTS RECORD-BREAKING CONVENTION IN LOUISVILLE, JUNE 19-21

Thursday, July 18th, 2013

The Kentucky Bar Association’s 2013 Annual Convention was one for the record books, with a total of 2,253 attorneys registering for the three-day event at the Galt House Hotel & Suites in Louisville, outpacing a record established at the 2010 Annual Convention in Lexington with 2,120 attendees.

Awards presented during the Annual Convention include:

Distinguished Judge Award – U.S. District Judge John G. Heyburn II of the Western District of Kentucky, Louisville
Distinguished Lawyer Award – John Rosenberg, AppalReD founder, Prestonsburg
Chief Justice’s Special Service Award – Maria Klyza, retired staff counsel, Supreme Court of Kentucky, Paris
Justice Thomas B. Spain Award – Joe C. Savage, The Joe C. Savage Law Firm, Lexington
Bruce K. Davis Bar Service Award – Brent R. Baughman, Bingham Greenebaum Doll LLP, Louisville
Donated Legal Services Award – Linda A. Smith, Kentucky Innocence Project, Frankfort
Nathaniel A. Harper Diversity Award – Drusilla V. Bakert, retired Dean of Admissions at UK College of Law, Lexington
Outstanding Young Lawyer Award – Kevin Burke, solo practice, Louisville
Young Lawyer Division Service to Community Award – Nanci M. House, White McCann & Stewart, PLLC, Winchester
Service to Young Lawyers Award – Pierce Hamblin, Landrum & Shouse, Lexington
YLD Outstanding Executive Committee Member Awards – Tiffany Bowman, Bluegrass Cellular, Simpsonville; Eric Weihe, Stoll Keenon Ogden PLLC, Louisville
New KBA officers sworn into office during the Annual Banquet on Thursday, June 20, include President Thomas L. Rouse, Erlanger; President-Elect William E. Johnson, Frankfort; Vice President Douglass Farnsley, Louisville; Immediate Past President W. Douglas Myers, Hopkinsville; and Young Lawyers Division Chairman Carl N. Frazier.

Board governors who received their oath of office include Michael M. Pitman, Murray, 1st Supreme Court District (SCD); John David Meyer, Owensboro, 2nd SCD; Howard O. Mann, Corbin, 3rd SCD; Amy D. Cubbage, Louisville, 4th SCD; William R. Garmer, Lexington, 5th SCD; J. Stephen Smith, Ft. Mitchell, 6th SCD; and Earl M. “Mickey” McGuire, Prestonsburg, 7th SCD.

Other Kentucky Bar Governors recognized for their continuing service were Jonathan Freed, Paducah, 1st SCD; Thomas N. Kerrick, Bowling Green, 2nd SCD; M. Gail Wilson, Jamestown, 3rd SCD; Douglas C. Ballantine, Louisville, 4th Supreme Court District; Anita M. Britton, Lexington, 5th Supreme Court District; David V. Kramer, Crestview Hills, 6th Supreme Court District; Bobby Rowe, Prestonsburg, 7th SCD.

Also honored were retiring KBA President Myers; Immediate Past President Margaret E. “Maggie” Keane, Louisville; outgoing YLD Chair Jackie Sue Wright, Maysville; retiring Bar Governors Richard Hay, Somerset; Serieta Jaggers, Princeton; and R. Michael Sullivan, Owensboro; 2013 Annual Convention Planning Committee Co-Chairs Douglass Farnsley, John W. Bilby, and Bobby Simpson, all of Louisville; and CLE Committee Chair Richard Hay.

DOWNLOAD OR PURCHASE PHOTOS FROM THE 2013 KBA ANNUAL CONVENTION

Photos from the 2013 Kentucky Bar Association Annual Convention in Louisville are available for download and can also be purchased in a variety of print sizes. To view the photos, please follow the instructions below.

Click on the following link: http://www.timwebbphotography.com/p150904159
Type in the password: justice
Click on the thumbnail image of the desired photo.
Once the image is accessed in a larger format, an option to download the image or purchase prints will be available directly above it.
If you have any questions regarding the photos, please email KBA Communications Director Amy Carman at acarman@kybar.org.

THANK YOU TO OUR KBA ANNUAL CONVENTION SPONSORS FOR 2013!

Platinum Gavel Sponsors

Lawyers Mutual Insurance Company of Kentucky (LMICK) and the National Insurance Agency (NIA)
Gold Gavel Sponsors

Dinsmore & Shohl 
GE Home & Business Solutions and Wyatt Tarrant & Combs 
KBA Criminal Law Section
Stites & Harbison PLLC 
Stoll Keenon Ogden PLLC

Silver Gavel Sponsor

Middleton Reutlinger
For more convention coverage, be on the lookout for the upcoming issue of the Bench & Bar!

Governor Appoints Two to Kentucky Board of Trustees of Ky. Retirement System

Thursday, July 18th, 2013

FRANKFORT, Ky. – Gov. Steve Beshear has appointed the following members to the Board of Trustees of the Kentucky Retirement Systems to serve for terms expiring July 1, 2017:

Joseph L. Hardesty, of Louisville, is an attorney at Stites & Harbison PLLC. He represents the Kentucky School Boards Association.

James A. “Tony” Fulkerson, of Owensboro, is a retired accountant. He represents the Kentucky League of Cities.
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