Archive for November, 2013

Ga. High Court Reinstates Many Death Sentences

Thursday, November 28th, 2013

By The Associated Press | November 28, 2013 | Updated: November 28, 2013 4:39pm

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ATLANTA (AP) — In the last five years, the Georgia Supreme Court has considered eight cases where lower courts threw out a death sentence handed down by a trial jury.

Each time, Georgia’s highest court reinstated the original sentence.

That result pleases prosecutors, The Atlanta Journal-Constitution (http://bit.ly/1bYUfpb ) reports. But defense attorneys and capital punishment opponents say it’s troubling, particularly in cases where jurors aren’t allowed to give a convicted killer’s mental health history full consideration.

The cases typically involve a condemned inmate appealing his death sentence by arguing that his lawyer performed below required standards during the sentencing phase, after a jury has already determined a defendant’s guilt. Several appeals judges have agreed that an inadequate defense helped prosecutors reach the unanimous jury vote that Georgia law requires for the death penalty.

In most of the cases, the Supreme Court hasn’t disagreed that defense lawyers were substandard. But the justices overruled the appeals courts by deciding that poor performance didn’t affect jurors’ decisions.

Among the rulings overturned by the state Supreme Court, several involved the killer’s mental health:

— Judge David Irwin overturned Andrew Cook’s death sentence, finding that Cook’s attorneys failed to present psychiatric evidence indicating that Cook was mentally ill. Georgia executive Cook in February for the killings of two Mercer University students.

— Judge Michael Clark determined that a more thorough investigation of Donnie Cleveland Lance would have allowed the attorney to inform jurors that the defendant, who killed his ex-girlfriend and her new boyfriend, had been hospitalized for mental illness, in addition to inhaling toxic fumes and ingested gasoline as a child. He’d also been shot in the head, abused alcohol, and suffered from frontal brain damage.

— William David Riley was convicted of killing his three children by burning down his mobile home. Judge Kathlene Gosselin later ruled that he deserved a new trial because Riley’s lawyer committed failed to present evidence that Riley suffered from two mental illnesses. Apart from consideration of his mental capacity, the lawyer did not play a recording that would have shown Riley had been ordered to move his car when the home was on fire, a fact that would have countered claims that he chose to move the vehicle rather than rescue his children.

The U.S. Supreme Court, in a 1984 case, set the parameters for how appeals courts must judge the performance of defense attorneys. Georgia State University law professor Anne Emanuel noted that it’s the same guidance for the appeals judges as for the state Supreme Court, making such a pronounced trend of reversals unlikely.

“That makes it all the more surprising that in eight cases where trial judges who heard the evidence (and) granted relief, the Georgia Supreme Court reversed them,” Emanuel said.

In those reversals, the state’s high court has cited other testimony to support its conclusion that a defense attorneys mistakes aren’t enough for a new sentencing process. For example, in Lance’s case, the justices noted testimony from a jailhouse snitch who told jurors that the convicted killer bragged that hit his former girlfriend “so hard that one of her eyeballs stuck to the wall.”

Still, some of the circumstances in the eight appeals are similar to the last case in which the Georgia Supreme Court upheld a state court judge who overturned a death penalty. In that June 2008 ruling, the justices agreed that Mark McPherson, who killed his girlfriend in Floyd County, deserved a new sentencing trial. McPherson had argued on appeal that he may not have been sentenced to death had jurors listened to evidence that he was abused and neglected as a child and went on to an adulthood of substance abuse and mental illness.

He awaits resentencing.

U.S. SUPREME COURT TO HEAR HOBBY LOBBY CHALLENGE TO BIRTH CONTROL MANDATE

Wednesday, November 27th, 2013

The nation’s high court accepts Hobby Lobby case and a related one to determine whether corporations can deny birth control coverage because of company owners’ religious views.

By Chris Casteel Modified: November 26, 2013 at 10:06 pm • Published: November 26, 2013

WASHINGTON — The U.S. Supreme Court agreed Tuesday to determine whether Hobby Lobby and a Pennsylvania furniture company can deny their employees federally required birth control coverage that violates the religious beliefs of the company owners.

The Supreme Court has agreed to referee another dispute over President Barack Obama’s health care law, whether businesses can use religious objections to escape a requirement to cover birth control for employees. The justices said Tuesday they will take up an issue that has divided the lower courts in the face of roughly 40 lawsuits from for-profit companies asking to be spared from having to cover some or all forms of contraception. The court will consider two cases. One involves Hobby Lobby Inc., an Oklahoma City-based arts and crafts chain with 13,000 full-time employees. Hobby Lobby won in the lower courts. (AP Photo/Ed Andrieski, File)
The high court justices accepted cases that have received conflicting decisions in federal appeals courts. Through the cases, the justices could determine whether the for-profit companies have the constitutional right and the leeway under a federal law to reject the birth control mandate that is part of the Affordable Care Act.
A decision on the mandate — which has been challenged in dozens of cases nationwide — is expected some time before the court’s term ends in June. Experts on both sides of the issue predicted Tuesday that the case could ultimately have far-reaching implications for religious freedom and health care coverage.
Hobby Lobby, a nationwide chain of crafts stores based in Oklahoma City, is owned by David Green and his family and operated according to the family’s Christian beliefs.
The company, and its related Christian bookstore chain, faced millions of dollars in potential fines for refusing to implement the birth control mandate but won a reprieve from the 10th U.S. Circuit Court of Appeals, which ruled in June that it could challenge the mandate on religious grounds.
Hobby Lobby and the U.S. Justice Department, which is defending the mandate, asked the high court to review the case.
Both sides react
“My family and I are encouraged that the U.S. Supreme Court has agreed to decide our case,” Green, Hobby Lobby’s founder and CEO, said Tuesday.
“This legal challenge has always remained about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution. Business owners should not have to choose between violating their faith and violating the law.”
White House press secretary Jay Carney said the birth control coverage mandate on companies with 50 or more employees was legal and “designed to ensure that health care decisions are made between a woman and her doctor.”
“The president believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women. The administration has already acted to ensure no church or similar religious institution will be forced to provide contraception coverage and has made a commonsense accommodation for nonprofit religious organizations that object to contraception on religious grounds.”

Alabama’s immigration law permanently blocked in Justice Dept. lawsuit

Monday, November 25th, 2013

Posted: Nov 25, 2013 5:46 PM EST
By Stephanie Wilson – email

STATEWIDE – The U.S. District Court for the Northern District of Alabama entered its final judgement today in United States v. Alabama, resolving the Justice Department’s constitutional challenge to Alabama’s immigration law. The judgement permanently blocks Alabama from enforcing seven provisions of House Bill 56, that were designed to affect virtually every aspect of an unauthorized immigrant’s daily life. The challenged provisions also threatened to impose significant burdens on federal and state agencies, diverting their resources away from dangerous criminal aliens and other high-priority criminal activity.

Monday’s judgement follows the decision by the U.S. Court of Appeals for the Eleventh Circuit declaring the enjoined provisions unconstitutional because they impermissibly conflicted with federal immigration law and undermined federal immigration-enforcement efforts. The judgement also dismisses challenges to three other provisions of the Alabama immigration law, although the Justice Department would be able to file a new challenge if the implementation of those provisions raised legal problems

GUN ADVOCATES APPEAL ‘FIREARMS FREEDOM ACT’ RULING

Monday, November 25th, 2013

HELENA, Mont. November 26, 2013 (AP)
By MATT GOURAS Associates Press

Gun advocates asked the U.S. Supreme Court on Monday to overturn a lower court’s ruling against state laws designed to buck federal gun rules.
Earlier this year, the 9th U.S. Circuit Court of Appeals upheld a district judge’s decision against the 2009 Montana Firearms Freedom Act. The law attempts to declare that federal firearms regulations don’t apply to guns kept in the state where they were manufactured.
Other pro-gun states have passed similar measures.
The Justice Department has argued successfully that the courts already have decided Congress can use its power to regulate interstate commerce. Some gun-control advocates sided with the federal argument, saying “firearm freedom acts” would allow felons to obtain guns without background checks and make it harder to trace guns used in crimes.
Gun advocates have long said only the Supreme Court can decide the case because it will have to limit the reach of Congress to regulate guns. The Supreme Court is expected to decide next year whether to accept the request.
The advocates, led by the Montana Shooting Sports Association, have had legal support from the attorneys general from the pro-gun states of Montana, Utah, Alaska, Idaho, Michigan, Nebraska, South Carolina, South Dakota, West Virginia, and Wyoming. States that have formally passed a version of Firearms Freedom Act include Alaska, Arizona, Idaho, Kansas, Tennessee, South Dakota, Utah and Wyoming.
MSSA president Gary Marbut has said he wants to manufacture a small, bolt-action youth-model rifle called the “Montana Buckaroo” for sale in Montana. The Bureau of Alcohol, Tobacco and Firearms told Marbut such a gun would be illegal under Montana law, prompting a lawsuit by the group against the U.S. attorney general.
Marbut said high court decisions dating back to 1942 dealing with certain interstate commerce need to be reversed. The request to the Supreme Court argues the rulings have allowed more concentration of power with the federal government, creating problems like more national debt and the potential for abuses of power.
“Without the centralization of so much regulatory power in the federal government, tyranny would be a lot less likely to occur,” the argument reads.

Chief Justice Minton to present overview of Judicial Branch budget to legislative committee Nov. 25 in Frankfort

Monday, November 25th, 2013

Chief justice will testify before the Budget Review Subcommittee on Justice and the Judiciary

FRANKFORT, Ky., Nov. 21, 2013 – Chief Justice of Kentucky John D. Minton Jr. will present an overview of the Judicial Branch budget to the General Assembly’s Budget Review Subcommittee on Justice and the Judiciary on Monday, Nov. 25, at the Capitol Annex in Frankfort. The meeting is open to the public and will take place at 10 a.m. EST.

Chief Justice Minton will testify about the budget for the next fiscal biennium of Fiscal Years 2014-2016. He will focus on revising the Judicial Branch salary structure as his top legislative priority for the 2014 session of the General Assembly.

“The sad facts are that more than 800 of our 3,300 non-elected employees fall under the federal poverty guidelines for a family of four and an even larger number qualify for food stamps based on their salaries,” Chief Justice Minton said. “In addition to the burden this puts on our employees, we are losing people to higher paying jobs in the private sector and other branches of government. We need to begin making systemic changes in our salary structure to ensure that court employees are adequately and fairly compensated.”

Chief Justice Minton formed a Compensation Commission in 2010 to evaluate the Judicial Branch’s salary scale, which has historically trailed those of the Executive and Legislative branches. The plan he will propose to the legislative committee is based on the commission’s recommendations.

The chief justice is the administrative head of the state court system and is responsible for overseeing its operation. Chief Justice Minton was elected to the Supreme Court in 2006. His fellow justices elected him to serve a four-year term as chief justice in 2008 and re-elected him for a second term in 2012.

ATTORNEY ERIC DETERS SPEAKS ON HIS MEDICAL BATTLE

Sunday, November 24th, 2013

LETTER FROM ERIC DETERS:

Based upon my clients and judges right to know, the fans and friends desire to know, the interest expressed to me from the public and the press who have asked for details and an interview and what I believe is public service to help others in the future, I provide the facts of my past ten days.

In the last full contact flag football game I ever played in five years ago, on my last pass, I dislocated my right shoulder. I have never experienced such pain.

Once a weightlifter, over the last several years (now 50), I’ve had to readjust my exercise. Reality. Swimming laps at home has been my favorite because of tone and endurance. This past summer, I had to stop this too. Bilateral shoulder soreness. I’m down to biking, treadmill, walking and stretching.

Beginning at 2 AM Thursday November 14, my right shoulder bothered me more and more. It was weird. Without any acute event, my right shoulder felt the same as when it was dislocated.

At 5:30 AM, my wife drove me to St. Elizabeth Edgewood ER. I described all the above. An x-ray was ordered and read normal.

The ER doctor, who I personally know and like, told me he believed I just had a stiff shoulder and gave me a set of exercises to do and suggested I follow up with my PCP. My PCP is a personal friend and my PCP for half of my life. I was also given pain medicine. I asked for an MRI, but the ER doc did not believe it was necessary.

At 7:30 AM and White Castles in the truck, I went straight to the Independence office to work. I had no sleep. I took a nap about 2 PM and woke up at 3 AM with chest pain, shortness of breath and numbness in my right arm. My staff drove me to the ambulance at the Independence Firehouse. At my request, Independence EMT’s (fine men and women) drove me to Christ Hospital.

Christ Hospital was really nice to me. EKG negative. Blood work negative. Relieved. No heart. They examined my shoulder (ER Doctor) stated clinically it was not dislocated. I asked him for an MRI. He too saw no need. He agreed with St. Elizabeth’s analysis.

I called my PCP. He ordered an MRI. It wasn’t scheduled until Monday, November 18 at 3 PM. Ugh. My arm was getting worse every day. Friday. Saturday. Sunday. Monday. MRI.

When my PCP received the MRI report, he called and said get to St. E for emergency surgery. I was told the infection was so bad I was at risk of death and loss of my arm.

One of the nicest orthopedists who once I learned was trained by John Wyrick at UC Health told me I could and should trust him and based upon the MRI there was no time to waste. I’m glad I listened to him.

After the surgery, the news reinforced all the pre-surgery concerns. It looked grim. The news. My shoulder. Infection everywhere to the shoulder bone. Rotator cuff exploded. I was more scared. I was admitted to UC Health with a plan Dr. Wyrick could do surgery on Thursday November 21.

After his surgery, there was more hopeful news. While he took muscle here, infection tissue there, he believed the bone had not fully grabbed yet by the infection.

Partners of Dr. Wyrick were involved. Their “growing” my infection was determined what kind of infection-staph, MRSA, etc.

On Saturday morning, a third surgery to clean up all the packing etc. left in my arm. Today, Monday, Dr. Wyrick will do the fourth surgery which will prepare it for two month of antibiotics so I can finally have my rotator cuff repaired.

My wound from Monday, November 18 until now is open and ugly. Black tissue.

I’d assess that if I had not done anything and demanded the MRI, by Tuesday, I would have lost my arm, by Wednesday, my life.

Certainly in the state it was in 24-48 hours would have been game changing.

Lessons:
1.Screw the system. Raise hell for yourself.
2.Time matters.
3.Tests matter.

I have always used UC Physicians (when I couldn’t use my PCP) and used UC Hospital. I even sue them.

I want to tell our community how wonderful UC Health was to me. ICU, nurses, docs, techs, etc. Great care. We also had so many laughs. I’m me. They have some characters too.

The Bulldog bleeds and bruises just like you. I’m grateful for the docs at UC Health who saved my life and arm. Literally.

Work: As always, I work, work, work. I’ve stayed on top of everything from the hospitals. Tomorrow, I’ll be back in the office.

I have the best clients in the world! You come first! I and my family count on you, so you’re first.

My staff has been great as always. Call/text/email me with anything you need on your case.

SCOKY Issues Rules for eFiling Pilot Project in Franklin Circuit Court, effective 12/15/13

Friday, November 22nd, 2013

By David Kramer | dkramer@dbllaw.com

More Sharing ServicesShare|Share on facebookShare on twitterShare on emailShare on printIn Order 2013-16 http://courts.ky.gov/courts/supreme/Rules_Procedures/201316.pdf (issued November 12, 2013), the Kentucky Supreme Court adopted rules of practice and procedures for the forthcoming electronic filing (“eFiling”) system to be utilized in the Franklin Circuit Court (FCC) beginning December 15, 2013. That system will serve as a prototype or pilot for eFiling to be adopted on a statewide basis.

Some of the more salient features of the eFiling Rules include the following:

The FCC pilot project will begin only with attorneys who have agreed to participate in it. Self-represented litigants are not authorized to participate.
The eFiling rules will supersede the Rules of Civil Procedure and the Local Rules of the FCC to the extent of any conflict.
The format of documents preferred by the eFiling system is PDF/A, although PDF is also permitted.
An eFiling may not exceed 50 megabytes. A filing larger than that presumably must be made conventionally or broken down into multiple filings.
Initially, the filing of e-transcripts of depositions taken on oral examination will not be permitted under the Rules. Rather, transcripts or videos of depositions will need to be filed in the conventional manner.
Once a document is eFiled, a notice of filing with a hyperlink to the document will be emailed to all parties registered in the case. The notice will record the date and time of eFiling. No other service of a document is required.
Documents may be eFiled 24 hours a day, and documents due on a particular day may be filed until midnight (E.S.T.) that day. However, the Rules encourage filing during normal business hours in case the system is down for scheduled maintenance or an eFiler encounters technical difficulties and needs support from the eFiling help line operated by the Administrative Office of the Courts .
eFiled documents must meet the privacy and redaction requirements of CR 7.03.
eFiling does not apply to service of process, which must still be served by one of the conventional methods authorized by the Civil Rules.
Documents that must be served but not filed (e.g., discovery requests) need not be served electronically except by mutual consent. (However, once amended CR 5.02 takes effect on January 1, 2014, any party may elect to receive documents by electronic service, which will mandate electronic service on the receiving party unless the serving party obtains leave of court for good cause shown. One would presume an attorney who is participating in eFiling in the FCC would have difficulty showing good cause not to serve opponents electronically if they elect to receive documents electronically.)
Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to Vol. 6 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

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

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LAWREADER Senior Editor Stan Billingsley Remembers Meeting with JFK in 1963

Friday, November 22nd, 2013

In May of 1963 I was participating in the White House Summer Intern program for college students who were working in Washington, D.C. About 1,000 of us were invited to the south lawn of the White House to hear President Kennedy speak to us.
The sky was very clear and the Washington D.C. humidity was brutal, as Kennedy walked out of the White House and stepped on a platform that raised him above the crowd of college interns.
I recall that from my view point about 30 yards away, I could see that Kennedy’s skin looked weathered and his full head of hair had a red cast, no doubt due to his many days in the sun.
The crowd went wild, like a rock star had appeared before us. Kennedy displaying his million watt smile, realizing he had captured the crowd.
He gave a short inspirational talk to us. He quoted Bismarck. He told us we were the one-third of the nation that one day would run the world. This was heady stuff to a college student from Western Ky. University who had less than a dollar in his pocket.
Kennedy ended his talk to us by inviting us to walk through the White House. We entered a door on the south side of the White House and walked the East Wing and out the front door onto Pennsylvania Avenue.
Six months later I was in a government class at WKU when someone opened the door and shouted that the President had been shot. The instructor stopped for a moment and then continued his lecture.
I never considered that the President referred to was JFK…I wondered who would shoot the President of WKU. It was impossible to consider that our President could be shot.
As soon as the class ended I was the first to rush out the door, and found a radio where they announced that Kennedy was dead.
My grief is no greater than the grief of everyone else in America, then and today. His death changed forever the entire world. People are far more cynical than the were before Nov. 22, 1963.
On the last of my six visits to the White House I noticed that snipers are posted on top of the roof of the White House, and I understand they operate ground to air missiles for the protection of the President. How times have changed.
Judge Stan Billingsley (Ret.)

Eric Deters Recovering from Surgery for a Bacterial Infection on his left arm.

Friday, November 22nd, 2013

Deters, 50, of Independence was transferred to the Cincinnati Hospital Medical Center after two surgeries earlier this week at St. Elizabeth Edgewood failed to stop the spread of the infection.

Chuck Holbrook, an investigator for Eric Deters Attorney at Law, said doctors are confident the latest surgery will stop the spread of the infection. Holbrook said doctors got to the infection before it spread to the bone and the prognosis is good.

“The doctors are puzzled,” Holbrook said. “They don’t know how it was contracted.”

“To all my clients, friends and family, thanks for all your prayers and support,” Deters wrote in a text from the hospital. “Overwhelmed with your kindness.

“Hopefully I’ll be good as new soon.”

Deters is currently serving a 60-day suspension from the practice of law in Kentucky for violating the state’s code of conduct for lawyers. Deters’ website states he can still practice in Ohio.

Deters was scheduled Tuesday to argue before the 6th U.S. Circuit Court of Appeals but that was canceled because because of his illness. He is representing former Gallatin County lawyer Meredith “Larry” Lawrence in his appeal of a 2012 conviction for evading federal taxes.

Holbrook said the staff of Deters’ firm was handling texts, emails and phone calls to Deters. Updates are being posted to Deters’ Facebook page.

“We are still in open and conducting business,” Holbrook said

Chief Justice Minton to present overview of Judicial Branch budget to legislative committee Nov. 25 in Frankfort

Thursday, November 21st, 2013

Chief justice will testify before the Budget Review Subcommittee on Justice and the Judiciary

FRANKFORT, Ky., Nov. 21, 2013 – Chief Justice of Kentucky John D. Minton Jr. will present an overview of the Judicial Branch budget to the General Assembly’s Budget Review Subcommittee on Justice and the Judiciary on Monday, Nov. 25, at the Capitol Annex in Frankfort. The meeting is open to the public and will take place at 10 a.m. EST.

Chief Justice Minton will testify about the budget for the next fiscal biennium of Fiscal Years 2014-2016. He will focus on revising the Judicial Branch salary structure as his top legislative priority for the 2014 session of the General Assembly.

“The sad facts are that more than 800 of our 3,300 non-elected employees fall under the federal poverty guidelines for a family of four and an even larger number qualify for food stamps based on their salaries,” Chief Justice Minton said. “In addition to the burden this puts on our employees, we are losing people to higher paying jobs in the private sector and other branches of government. We need to begin making systemic changes in our salary structure to ensure that court employees are adequately and fairly compensated.”

Chief Justice Minton formed a Compensation Commission in 2010 to evaluate the Judicial Branch’s salary scale, which has historically trailed those of the Executive and Legislative branches. The plan he will propose to the legislative committee is based on the commission’s recommendations.

The chief justice is the administrative head of the state court system and is responsible for overseeing its operation. Chief Justice Minton was elected to the Supreme Court in 2006. His fellow justices elected him to serve a four-year term as chief justice in 2008 and re-elected him for a second term in 2012.

Ky high court rejects ex-judge’s reinstatement

Thursday, November 21st, 2013

November 21, 2013 10:40 EST

By BRETT BARROUQUERE Associated Press

LOUISVILLE, Ky. (AP) — The Kentucky Supreme Court has rejected a bid by a former judge who served time in federal prison for extortion to reinstate his law license.

The justices on Thursday by a 4-3 vote turned away Charles L. Huffman III’s attempt to return to legal practice.

The court’s majority concluded that Huffman’s willingness to trade lenient sentences for prescription medication too serious a violation to allow him to practice law again in Kentucky.

Justice Will T. Scott led the dissenters, saying an addiction prompted Huffman’s misdeeds and he has paid his dues.

Huffman pleaded guilty in 1995 to extortion while serving as a judge in Pikeville. He admitted to promising a defendant community service in exchange for several prescription drugs and served 15 months in federal prison.

ONLINE GAMBLING SET TO FLOURISH IN THE US: GREATER FEDERAL REGULATION NECESSARY

Wednesday, November 20th, 2013

By Missi Davis Nov. 20, 2013
After years of being kept on the backburner, online gambling is gaining momentum in the US, with New Jersey commencing online wagering on November 26, and various states poised to follow suit. Pundits predict that within 10 years, a large percentage of states will offer Internet gambling experiences. Morgan Stanley estimates that US online gambling revenues will amount to around $670 million in 2014, and $9.3 billion in 2020. Since 2001, there has been much confusion regarding the legal status of online gambling in the United States. In 2006, the passing of the Unlawful Internet Gambling Enforcement Act (UIGEA) forbade the use of credit cards and other financial tools with a view to Internet gambling. This law, coupled with the Wire Act (1961), effectively put a stop to illegal online gambling.
In 2011, the status quo was shaken by a groundbreaking ruling by the Department of Justice, which limited the applicability of the Wire Act to sports betting. Since the Internet generally functions at an interstate level, borders are rendered irrelevant, the doors are opened to offshore operators and the enforcement of limits becomes impossible, as various states begin to offer intrastate Internet gambling experiences. Thus far, states have been using geo-location technology to keep gamblers within states, but bilateral agreements could soon see gamblers exchanging bets with players in other states.
It is, perhaps, no wonder that casino tycoon, Sheldon Adelson, is working hard to persuade Congress to ban online gambling; in his view, the latter could hamper the gambling industry’s traditional business model and endanger some of the weakest members of society. According to the Washington Post, Adelson and his team are currently working on a campaign which will highlight the dangers of online gambling to children and those living in poverty. Adelson is not the first to warn against the effects of gambling addiction. As psychguides.com states, “If you become addicted to gambling, your entire life can be impacted. You can face financial ruin, the loss of your home or business because of gambling debts, the ending of a marriage or loss of child custody, or your downward spiral can lead you to additional addictions and psychological ailments”. Adelson’s assertions lead one to wonder whether online wagering will actually increase percentages of those addicted to gambling, or have an appreciable effect on the more vulnerable members of society.
Thus far, Adelson has hired top public relations experts and lobbyists to convince the powers that be in Washington and in various state capitals of his way of thinking. He warns of the serious consequences of opening the floodgates, including the loss of some 400.000 lost jobs in casino-hosting cities across America. Additionally, he says that the widespread use of online gaming sites will make it difficult to ensure “that each wager has been placed in a rational and consensual manner”.
Adelson will be be joined by a coalition of groups including those defending the rights of women, African Americans and Hispanics, who are set to commence a massive campaign in January, 2014. On the other side of the fence are the equally vocal members of the online gambling industry and other casinos like Caesar’s Entertainment and MGM Resorts, who have indicated their support for online gambling.
The new legality of gambling presents a series of legal issues which need to be tackled on a federal level. For one, greater consumer protection needs to be adopted, and equal importance should be given to curtailing abuse by illicit operators. The American Gaming Association has already made a request for federal rules, which will help bring in welcome revenue at a federal level. Congress likewise needs to look at the logic of prohibiting some types of online gambling, such as poker and bingo, while allowing betting on horse races. Without some form of logical determination of permitted activities, the result could be a somewhat arbitrary and haphazard system of rules. Protection is another key area: according to John Kindt, Business Professor at the University of Illinois, “This is not just fun and games. It is a question of national economic security”. Practices which could get out of hand if not tightly regulated include money laundering, the bypassing of age restrictions and profiteering by organized crime or offshore organisations.

Supreme Court Justice Samuel Alito Slams Judge

Tuesday, November 19th, 2013

By Jacob Gershman


Judge Shira Scheindlin can take comfort in that she’s not the only on the bench to be taken to the woodshed.

This time, it’s her colleague Judge Harold Baer, who also sits in the Southern District of New York, who’s come in for reproach. And it’s not the Court of Appeals for the Second Circuit doing the finger-wagging but a Supreme Court justice.

Justice Samuel Alito on Monday rebuked Mr. Baer for his practice of imposing racial and gender staffing requirements on law firms representing plaintiffs in class actions.

The justice’s concerns weren’t enough to trigger a review of the case at issue, a lawsuit challenging Judge Baer’s approval of a 2012 settlement between satellite-radio broadcaster Sirius XM Radio Inc.SIRI -2.00% and a class of its subscribers.

But in a statement accompanying the high court’s decision not to hear the case, Justice Alito criticized the judge’s practice — citing three other instances in which Judge Baer imposed similar racial and gender instructions — and warned him that if he keeps it up “a further review may be warranted.”

“I am hard­-pressed to see any ground on which Judge Baer’s practice can be defended,” wrote Justice Alito.

Judge Baer could not immediately be reached for comment on Monday.

When certifying the class in 2011, Judge Baer had required that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of rele­vant race and gender metrics.”

Public-interest litigator Ted Frank had claimed in a lawsuit that the judge’s mandate tainted the settlement, which included $13 million in fees to the plaintiffs’ lawyers.

Federal rules of civil procedure allow a district court to con­sider “any . . . matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” But Justice Alito said he doubted that the provision “can be stretched to justify the practice at issue here.”

He continued:

It seems quite far-fetched to argue that class counsel cannot fairly and adequately represent a class unless the race and gender of counsel mirror the demographics of the class. Indeed, if the District Court’s rule were taken seriously, it would seriously complicate the appointment process and lead to truly bizarre results. . .

Suppose, for example, that the class consisted of persons who had undergone a particular type of treatment for prostate cancer. Would it be proper for a district judge to favor law firms with a high percentage of male attorneys? Or if the class consisted of persons who had undergone treatment for breast cancer, would it be permissible for a court to favor firms with a high percentage of female lawyers?

Mr. Frank told Law Blog that he felt “vindicated” by Justice Alito’s statement, adding that it “would have been nicer if the lower courts had gotten it right.”

An attorney for the plaintiffs in the original lawsuit declined comment

Attorney General Conway Announces Indictments in Oakwood Manor Patient Neglect Investigation

Tuesday, November 19th, 2013

Press Release Date: Monday, November 18, 2013
Contact Information: Daniel Kemp
Deputy Communications Director
502-696-5659 (office)

Attorney General Jack Conway today announced that three former employees of Oakwood Manor in Somerset have been indicted on felony charges of abuse and neglect by a Pulaski County grand jury.

22-year-old Coty King, of Pine Knot, is charged with three counts of knowing abuse or neglect of an adult; 21-year-old Cody Burton, of Burnside, is charged with two counts of complicity to knowing abuse or neglect of an adult; and 22-year-old Timothy James Ball, of Pine Knot, faces one count of knowing abuse or neglect of an adult.

Both King and Burton were first arrested in September after King allegedly enticed a developmentally disabled adult patient at Oakwood Manor to hit another patient while King used his cell phone to record the incident. Burton was accused of participating in the incident and failing to report it. Further forensics review of video recovered from the cell phone led to the indictment of Ball for his involvement in another incident staged by King.

The Pulaski County Attorney’s Office handled the original charges against King and Burton, which were dismissed pending the indictment announced today. Commonwealth’s Attorney Eddy Montgomery is handling the prosecution of this matter.

The violations in this case are Class C felonies punishable by up to five to 10 years in prison.

All persons accused of a crime are presumed innocent until convicted in a court of law.

The Attorney General’s Tip Line for reporting allegations of abuse is 877 ABUSE TIP (877-228-7384).

Supreme Court allows NSA telephone surveillance to continue

Tuesday, November 19th, 2013

By Bill Mears Nov. 18, 2013

The U.S. Supreme Court will allow the National Security Agency’s surveillance of domestic telephone communication records to continue for now.

The justices without comment Monday rejected an appeal from a privacy rights group, which claimed a secret federal court improperly authorized the government to collect the electronic records.

The Electronic Privacy Information Center filed its petition directly with the high court, bypassing the usual step of going to the lower federal courts first. Such a move made it much harder for the justices to intervene at this stage, but EPIC officials argued “exceptional ramifications” demanded immediate final judicial review. There was no immediate reaction to the court’s order from the public interest group, or from the Justice Department.

Published reports earlier this year indicated the NSA received secret court approval to collect vast amounts of so-called metadata from telecom giant Verizon and leading Internet companies, including Microsoft, Apple, Google, Yahoo and Facebook. The information includes the numbers and location of nearly every phone call to and from the United States in the past five years, but not actual monitoring of the conversations themselves. To do so would require a separate, specifically targeted search warrant.

The revelations on bulk data collection triggered new debate about national security and privacy interests, and about the secretive legal process that sets in motion the government surveillance.

The once-secret approval came in April from a judge at the Foreign Intelligence Surveillance Court, which handles individual requests for electronic surveillance for “foreign intelligence purposes.”

Verizon Business Network Services turned over the metadata to the government.

“Telephone records, even without the content of the calls, can reveal an immense amount of sensitive, private information. There are no reasonable grounds for the NSA to have access to every call record of every Verizon customer,” said Marc Rotenberg, president of EPIC.

The Surveillance Court has applied the Foreign Intelligence Surveillance Act “in a way that is contrary to both the text and purpose of the statute,” he said.

This is the first direct challenge to the court order, and EPIC said the Obama administration should have to publicly explain its legal justification for the spying program.

The group also argued restrictions in federal law mean no other state or federal court can review the Surveillance Court’s orders except the Supreme Court itself. The group is suing on behalf of itself as a Verizon customer, but also said the justices themselves have a stake in the legal fight.

“Because the NSA sweeps up judicial and congressional communications, it inappropriately arrogates exceptional power to the executive branch,” said the petition.

The revelations of the NSA program and the inner workings of the Surveillance Court came after a former agency contractor, Edward Snowden, leaked documents to the Guardian newspaper in Britain. Snowden fled to Hong Kong and then Russia to escape U.S. prosecution, and his supporters say they are working on asylum deals with other countries on his behalf.

The Justice Department urged the high court to stay out of the current fight, called a “mandamus” review.

EPIC’s petition “does not meet the stringent requirements for mandamus relief, and this court lacks jurisdiction” to act, Solicitor General Donald Verrilli said in the government’s brief, filed last month.

“The mandamus petition does not establish that it is more than speculative that the NSA has reviewed, or might in the future review, records pertaining to petitioner’s members, particularly given the stringent, (Surveillance Court)-imposed restrictions that limit access to the database to counterterrorism purposes,” the Obama administration added.

The U.S. Supreme Court does not comment on pending cases. The privacy rights group now has the option of going back to the lower courts and starting the legal process anew.

Prior lawsuits against the NSA program have been unsuccessful.

Days after Snowden’s disclosure of the NSA program, the American Civil Liberties Union filed a lawsuit in New York federal court. The San Francisco-based Electronic Frontier Foundation did so in July. And Freedom Watch also filed a separate claim on behalf of Verizon customers. The suits are still pending.

Telecoms themselves were the initial targets of legal action, after the NSA domestic surveillance program was unveiled in 2005. Congress later gave retroactive immunity to those private firms.

The Foreign Intelligence Surveillance Court secretly decides whether to grant certain types of government requests, including wiretapping, data analysis, and other monitoring of possible terrorists and spies operating in the United States.

Legal sources say the tiny courtroom and adjacent areas are sealed tightly – ironically given the political debate – to prevent any eavesdropping by outsiders.

Eleven federal judges from around the country serve on the court for seven-year terms. They are appointed by the chief justice of the United States. John Roberts has named all current members, as a well as a three-judge panel to hear appeals of the Surveillance Court’s orders, known as the Court of Review.

Because it is an “ex-parte” body – it hears only the government’s side – the court has been criticized as a kangaroo court that too easily accedes to any government request.

In order to collect information, the government has to demonstrate that it’s “relevant” to an international terrorism investigation. The 1978 Foreign Intelligence Surveillance Court Act lays out exactly what the special court must decide:

“A judge considering a petition to modify or set aside a nondisclosure order may grant such petition only if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.”

Several federal judges who once served on the Surveillance Court refused to discuss their service when contacted by CNN.

The case is In Re Electronic Privacy Information Center (13-58).

JUSTICE SOTOMAYOR FINDS FAULT WITH ALA. JUDGES WHO OVERRIDE JURIES AND IMPOSE DEATH SENTENCES

Tuesday, November 19th, 2013

JUSTICE SOTOMAYOR FINDS FAULT WITH ALA. JUDGES WHO OVERRIDE JURIES AND IMPOSE DEATH SENTENCES
• By MARK SHERMAN Associated Press
• November 18, 2013
WASHINGTON — Supreme Court Justice Sonia Sotomayor said Monday that partisan political elections for the Alabama courts appear to be driving judges’ decisions to impose death sentences, overruling juries that have voted to send defendants to prison for life.
Sotomayor made her comments about Alabama in an unusual dissent after she and Justice Stephen Breyer were the only two justices who voted to hear an appeal from a death row inmate who was convicted of killing a Montgomery, Alabama, police officer. It takes the votes of four of the nine justices to hear a case.
Alabama, Delaware and Florida are the only states that allow trial judges to override jury sentencing decisions in capital-punishment cases. And since 2000, Alabama accounts for 26 of the 27 defendants who have been sentenced to death despite a jury’s vote for life in prison, Sotomayor said. The other case was in Delaware. In that case, the state Supreme Court changed the trial judge’s death sentence to a life prison term.
No Florida court has sought to sentence a defendant to death in the face of a jury vote for life in prison since 1999, Sotomayor said.
The Supreme Court upheld the Alabama override law in 1995 in an opinion joined by Breyer and Justice Ruth Bader Ginsburg. Eighteen years later, Sotomayor said, “the time has come for us to reconsider that decision.”
Not only has the practice become rare outside Alabama since 1995, but the Supreme Court also has limited the discretion of judges to add to a defendant’s punishment beyond what juries have decided, she said.
And the 59-year-old New Yorker said she also is troubled by the apparent reason for judges’ actions in Alabama, where she said crime is no more heinous and juries no more lenient than elsewhere.
“Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures,” she wrote. Sotomayor noted that one judge who has overridden jury votes six times also has run campaign ads voicing support for capital punishment.
The high court in recent years has highlighted what it views as shortcomings in the Alabama legal system.
In 2012, the justices ordered a new hearing for death row inmate Cory Maples after they found Maples was abandoned by his appellate lawyers. Ginsburg’s opinion for the court also criticized Alabama for using inexperienced lawyers and paying them poorly to represent defendants in death-penalty cases.
A few months later, the justices ruled in another Alabama case that people who were younger than 18 when they committed a crime could not receive mandatory sentences of life in prison with no chance of parole.
In Monday’s case, the court rejected an appeal from defendant Mario Woodward, who was convicted of shooting Montgomery officer Keith Houts several times during a traffic stop on Sept. 26, 2006. Houts died two days later.
The jury voted 8-4 to send Woodward to prison for life. The trial judge sentenced him to death instead.
Since 1982, Woodward is among 95 defendants sentenced to death in Alabama despite a jury’s vote for life in prison, Sotomayor said. In 12 instances, the jury vote for a life term was unanimous.
Of those 95 people, at least 30 have since had their death sentences lifted. At least another 38 remain on death row, according to the state Department of Corrections website.
Ten of the 95 have been executed, according to the Death Penalty Information Center database of all U.S. execut

KENTUCKY STATUTE SETS FEES FOR CONSTABLES…WHO WOULD WANT THIS JOB

Saturday, November 16th, 2013

Nov. 16, 2013

The Kentucky legislature has actually passed a law that sets maximum fees for Constables for doing various jobs. $3.00 to bury a horse!!!

KRS 64.190 Constables.
Constables may collect for the following services the following fees:

Making arrests for violations involving a motor vehicle on the public highways ……………………………………………. $0.50
Taking up a vagrant ………………………………………………. $0.50
Killing a mad dog ………………………………………………………….$1.00
Killing and burying a distempered horse, ass or mule……………$3.00
Killing and burying any other cattle, per head………………………$2.00
Altering a stud, jackass or bull………………………………………….. $1.00

Any other services, the same fees allowed sheriffs for similar services.

Effective: January 2, 1978
History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 30, effective January 2, 1978. — Amended 1956 Ky. Acts ch. 205, sec. 1. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 1733.

WILL U.S. SUPREME COURT ALLOW WARRANTLESS SEARCHES

Friday, November 15th, 2013

By David G. Savage L.A. TIMES
November 13, 2013, 9:04 p.m.
WASHINGTON — In a case that could narrow legal protections against police searches, a majority of Supreme Court justices sounded ready Wednesday to reject an appeal from an imprisoned Los Angeles gang member who contended that after he objected to a search and was then taken away under arrest, police unconstitutionally entered his apartment.
Justices appeared to agree with attorneys for the Los Angeles Police Department, who defended the search as legal because the gang member, Walter Fernandez, was not present and his girlfriend gave police permission to enter their home.
Fernandez’s attorney, Stanford law professor Jeffrey Fisher, said the case would set a dangerous precedent by allowing police to circumvent laws requiring search warrants. Except in emergencies, the Constitution’s 4th Amendment requires police to obtain a search warrant to enter and look through a home, he argued, and that’s what Los Angeles police should have done.
“In Los Angeles County, it takes 15 minutes on average to get a warrant,” he told the court. He noted that his client had strongly objected to the police entering his apartment before he was handcuffed and taken away.
But Fisher ran into skeptical questioning. Several justices focused on the fact that Fernandez’s girlfriend had agreed to allow the officers to search the premises. There, they found a knife, gun and gang paraphernalia linking him to a robbery earlier that day. Based on the evidence, Fernandez was sent to prison for 14 years.
“It’s her house too,” Justice Stephen G. Breyer said. “Can she never invite the policeman in?”
“The police can simply get a warrant,” Fisher replied.
But Chief Justice John G. Roberts Jr. said the police may find obtaining consent from a tenant “simpler, faster and less burdensome than applying for a warrant.”
Only Justice Sonia Sotomayor strongly argued for requiring police to obtain a warrant from a magistrate before searching a home, at one point interrupting an Obama administration attorney who was defending the LAPD’s actions.
“How about a clear answer?” Sotomayor said. “Get a warrant! When you have probable cause to believe a crime has been committed … you’ve got to secure the premises and get a warrant. I don’t know why that’s so difficult for police officers to understand.”
She and other justices worried that police in the future might use an arrest as a pretext to remove a suspect from his or her home to conduct a warrantless search.
The case of Fernandez vs. California began in October 2009 when police responded to reports of a street robbery near Venice Boulevard and Magnolia Avenue. An officer saw a man who resembled the suspect running upstairs to a second-floor apartment. When officers knocked, a woman opened the door. She was bruised and looked frightened. They spotted Fernandez, who they believed resembled the suspect, and took him into custody.
Officers returned within an hour and, with the woman’s permission, searched the apartment. The California courts upheld Fernandez’s conviction, so he appealed to the U.S. Supreme Court and cited a 2006 ruling in Georgia vs. Randolph.
In that case, the court decided — in an opinion by now-retired Justice David H. Souter — that police had violated the rights of a Georgia man when they entered his home and searched based on his wife’s consent. Because Scott Randolph, her husband, had stood in the door and objected, the court ruled that the police should have honored his objection.
If the justices agree that the Fernandez search was legal, it could settle a dispute bubbling up in lower courts nationwide over whether a consent to search provided by one resident of a private home is enough to override an objection from a spouse or roommate, if the objecting party is not present.
California Deputy Atty. Gen. Louis Karlin argued that Fernandez could not rely on that precedent because he was not “physically present” when the police returned. “When he’s gone, she really is in charge,” he said.
Sotomayor sounded resigned to a decision that would narrow the court’s previous ruling. “So there’s nothing left to Randolph,” she said. “Police just remove the person.”
Separately, the court heard a Florida case that could pose a major threat to union organizing campaigns.
Since 1947, it has been a crime under federal labor law for an employer to offer “any money or other thing of value” to a union or a union official. The aim was to prevent corruption and bribery.
But last year, a federal appeals court said a so-called neutrality agreement between a casino and a union could be illegal because it is a “thing of value.” The union had agreed to support a state initiative to expand slot machines in Florida, and the casino agreed to permit employees to form a union by “card check”: that is, if a majority of workers in the bargaining unit signed a card that they wanted to unionize, no election would be required.
The court heard the union’s appeal in Unite Here Local 355 vs. Mulhall.
A union lawyer and a Justice Department attorney urged the court to rule that neutrality agreements are not akin to illegal bribes. And most of the justices appeared to agree. It would “create a mess” if agreements to permit organizing votes were deemed illegal, Breyer said.
david.savage@latimes.com

Did Clarence Thomas flout ethics rules?

Friday, November 15th, 2013

11/14/13
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By Ned Resnikoff
A top House Democrat is going after one of the Supreme Court’s most conservative justices and trying to enlist the Chief Justice in her cause.
On Wednesday, New York Rep. Louise Slaughter wrote to Chief Justice John Roberts asking that he formally reprimand his colleague Justice Clarence Thomas for participating in the conservative Federalist Society’s annual fundraiser. Thomas’ appearance at the event, writes Slaughter, is a “clear violation of the ethical standards embodied in the Code of Conduct for U.S. Judges.”
Her letter was co-signed by representatives from two progressive advocacy groups: Nan Aron, president of the Alliance for Justice, and Arn H. Pearson, vice president for policy and litigation for Common Cause.
Canon 4(c) of the Code of Conduct forbids judges from personally participating in fundraising events. Although it is not legally binding upon Supreme Court justices, Roberts has previously written that it provides “a current and uniform source of guidance” for the members of the Court.
“Justice Thomas is among several members of the high court who’ve made a habit of flouting judicial ethics by headlining Federalist Society fundraisers,” said Pearson in a statement. “He gets away with it because the Court has exempted itself from the Code, but that doesn’t make it right.”
A formal reprimand for Thomas could be unprecedented, says Stanford Law Professor Deborah L. Rhode, the founding president of the International Association of Legal Ethics. But that doesn’t mean it would be unjustified.
“Without knowing the underlying facts, it’s hard for me to comment on that, but I do think the conduct, if true, raises a serious issue that needs to be addressed in some official way,” Rhode told msnbc.
The consequences could go beyond an embarrassing incident for Thomas. Slaughter, Aron and Pearson are also requesting that Thomas adopt an official code of conduct which includes the five canons of the Code of Conduct for U.S. Judges.
“The guidelines contained in the Code exist to ensure the public has faith that judicial decision-making is based on the facts and the law, not politics and outside interests. Congress must act to ensure the Supreme Court plays by the same ethical rules as all other federal judges,” said Slaughter in a statement.
Slaughter also targeted another participant in the Federalist Society fundraiser: Judge Diane Sykes, a member of the federal Court of Appeals for the Seventh Circuit, who is legally bound by the Code of Conduct. Slaughter, Pearson and Aron filed a formal complaint with the Judicial Council of the Seventh Circuit, asking that Sykes be investigated.
If Sykes were found to have violated the code, “she could certainly be reprimanded,” said Rhode. However, “I would doubt that a violation of this sort would result in a removal from office.”
This is not the first time that Thomas’ behavior as a justice has come under ethical scrutiny. He and his colleague Antonin Scalia have attended the annual Federalist Society fundraiser before, and Slaughter once asked her Republican colleagues to look into Thomas’ alleged ethical violations regarding financial disclosure.
Poll: Should Supreme Court justices be held to the same standards as other federal judges?

SUPREME COURT CONSIDERS SEARCH WITHOUT A WARRANT OF HOME. GIRLFRIEND ALLOWED SEARCH AFTER SUSPECT WAS ARRESTED AND REMOVED

Thursday, November 14th, 2013

By David G. Savage
November 13, 2013,
WASHINGTON — In a case that could narrow legal protections against police searches, a majority of Supreme Court justices sounded ready Wednesday to reject an appeal from an imprisoned Los Angeles gang member who contended that after he objected to a search and was then taken away under arrest, police unconstitutionally entered his apartment.
Justices appeared to agree with attorneys for the Los Angeles Police Department, who defended the search as legal because the gang member, Walter Fernandez, was not present and his girlfriend gave police permission to enter their home.
Fernandez’s attorney, Stanford law professor Jeffrey Fisher, said the case would set a dangerous precedent by allowing police to circumvent laws requiring search warrants. Except in emergencies, the Constitution’s 4th Amendment requires police to obtain a search warrant to enter and look through a home, he argued, and that’s what Los Angeles police should have done.
“In Los Angeles County, it takes 15 minutes on average to get a warrant,” he told the court. He noted that his client had strongly objected to the police entering his apartment before he was handcuffed and taken away.
But Fisher ran into skeptical questioning. Several justices focused on the fact that Fernandez’s girlfriend had agreed to allow the officers to search the premises. There, they found a knife, gun and gang paraphernalia linking him to a robbery earlier that day. Based on the evidence, Fernandez was sent to prison for 14 years.
“It’s her house too,” Justice Stephen G. Breyer said. “Can she never invite the policeman in?”
“The police can simply get a warrant,” Fisher replied.
But Chief Justice John G. Roberts Jr. said the police may find obtaining consent from a tenant “simpler, faster and less burdensome than applying for a warrant.”
Only Justice Sonia Sotomayor strongly argued for requiring police to obtain a warrant from a magistrate before searching a home, at one point interrupting an Obama administration attorney who was defending the LAPD’s actions.
“How about a clear answer?” Sotomayor said. “Get a warrant! When you have probable cause to believe a crime has been committed … you’ve got to secure the premises and get a warrant. I don’t know why that’s so difficult for police officers to understand.”
She and other justices worried that police in the future might use an arrest as a pretext to remove a suspect from his or her home to conduct a warrantless search.
The case of Fernandez vs. California began in October 2009 when police responded to reports of a street robbery near Venice Boulevard and Magnolia Avenue. An officer saw a man who resembled the suspect running upstairs to a second-floor apartment. When officers knocked, a woman opened the door. She was bruised and looked frightened. They spotted Fernandez, who they believed resembled the suspect, and took him into custody.
Officers returned within an hour and, with the woman’s permission, searched the apartment. The California courts upheld Fernandez’s conviction, so he appealed to the U.S. Supreme Court and cited a 2006 ruling in Georgia vs. Randolph.
In that case, the court decided — in an opinion by now-retired Justice David H. Souter — that police had violated the rights of a Georgia man when they entered his home and searched based on his wife’s consent. Because Scott Randolph, her husband, had stood in the door and objected, the court ruled that the police should have honored his objection.
If the justices agree that the Fernandez search was legal, it could settle a dispute bubbling up in lower courts nationwide over whether a consent to search provided by one resident of a private home is enough to override an objection from a spouse or roommate, if the objecting party is not present.
California Deputy Atty. Gen. Louis Karlin argued that Fernandez could not rely on that precedent because he was not “physically present” when the police returned. “When he’s gone, she really is in charge,” he said.
Sotomayor sounded resigned to a decision that would narrow the court’s previous ruling. “So there’s nothing left to Randolph,” she said. “Police just remove the person.”