Archive for the ‘Useful Legal Theories – Tips’ Category

Community Caretaking Function traffic stops limited by Court of Appeals

Monday, June 26th, 2006

In  Poe v. Commonwealth, 169 S.W.3d 54 (Ky. CA) July 22, 2005, the Ky. Court of Appeals limited traffic stops based on the community caretaking function theory. 

In this case the officer said he felt the motorist was lost.  The officer turned on his takedown lights and pulled the motorist over and subsequently cited him for DUI.  The court held this did not meet the required test for the application of this law. The court held this traffic stop did not meet the required test for the application of this law.

Courts are required to “make an objective assessment of the officer’s actions” when determining if a stop was reasonable.
        On December 21, 2002 an officer with the Hopkinsville Police Department observed Poe driving up and down the same streets around 1:30 a.m. The citation notes a “courtesy stop was made to possibly offer directions.” The officer effected the stop by pulling behind Poe and activating his emergency lights. Once the stop was made the officer noticed Poe had bloodshot eyes, a carefree attitude, and was not wearing a seatbelt. Poe admitted upon questioning that he had been smoking marijuana. Poe was arrested and charged with operating a motor vehicle while under the influence of drugs, no insurance, possession of marijuana, and possession of drug paraphernalia, first offense.

        Poe filed a motion to suppress all evidence based on the allegation that the officer did not have a reasonable and articulable suspicion upon which to believe any criminal activity was afoot, thus, the stop did not meet the constitutional standards required by Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).

The Commonwealth admits that the stop of Poe was not based on any reasonable and articulable suspicion of criminal activity and the circuit court’s ruling also recognizes that the stop of Poe was not based on this principle, thus, it cannot be justified pursuant to the doctrines expressed Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) and Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). See also, Simpson v. Commonwealth, 834 S.W.2d 686, 687 (Ky.App.1992). Essentially the Commonwealth is admitting the stop of Poe was illegal unless the community caretaking function exception applies.

        The community caretaking function was first articulated by the United States Supreme Court Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The Court explained the idea in the context of a case where the police had searched a vehicle without a warrant that had been removed from an accident scene. The search occurred later in time from the accident and was made to locate the driver’s, who was a Chicago police officer, service revolver. Id. 413 U.S. at 437, 93 S.Ct. at 2526. The Court found the search not to violate Constitutional principles stating:

        Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.         Id. 413 U.S. at 441, 93 S.Ct. at 2528.


 All courts that have considered the community caretaking function have required, at a minimum, that the officer’s actions must be measured by a standard of reasonableness. One court described this determination as “balancing the public need and interest furthered by the police conduct against the degree and nature of the intrusion upon the privacy of the citizen.” State v. Ellenbecker, 159 Wis.2d 91, 96, 464 N.W.2d 427, 429 (Wis.App.1990), rev. den., 468 N.W.2d 28 (Wis.1991).

        Ellenbecker applied this test in the context of a police officer requesting the license of an operator of a disabled vehicle. Id. 159 Wis.2d at 96-97, 464 N.W.2d at 429. But its principle is equally applicable to Poe’s case because when Officer Marszalek stopped Poe using his emergency lights he effectively seized him. That is, any reasonable person in Poe’s situation would not have felt free to walk, or drive, away. Terry v. Ohio, supra 392 U.S. at 16, 88 S.Ct. at 1877. See also, State v. Jestice, 861 A.2d 1060, 1062 (Vt.2004)(stop is a shorthand way of referring to a seizure).
As others have noted, for the community caretaking function to apply there must be some specific and articulable facts that would lead the officer to reasonably believe the citizen is in need of assistance. Jestice, supra 861 A.2d at 1064. An officer’s practice cannot provide reasonable grounds. Id. In this respect we agree with the observation that:

        An officer’s subjective explanation for stopping or detaining a driver does not control Fourth Amendment analysis. Courts are required to “make an objective assessment of the officer’s actions” when determining if a stop was reasonable.

        State v. Rinehart, 617 N.W.2d 842, 845 (S.D.2000)(Sabers, J. dissenting)(quoting United States v. Cummins, 920 F.2d 498, 501 (8th Cir.1990)(citing Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168, 177 (1978))).

        Such an objective assessment must also be applied in the context of an argument for the community caretaking function, otherwise, the protections afforded by the Fourth Amendment would quickly be eroded. Court approval of any reason related to “public need” for stopping and detaining a citizen based on the subjective beliefs of police officers is constitutionally insufficient.

There have been no published cases in Kentucky considering the application of the community caretaking function to a stop made by a police officer. Cady v. Dombrowski, supra has only been cited and relied on twice: once City of Danville v. Dawson, 528 S.W.2d 687 (Ky.1975) which has since been reversed by Estep v. Commonwealth, 663 S.W.2d 213 (Ky.1983). And the other Kentucky case citing to Cady v. Dombrowski, supra is Blankenship v. Commonwealth, 740 S.W.2d 164 (Ky.App.1987). Blankenship held that an officer’s search of a vehicle of a person who had been shot and was unconscious in order to seek his identity was proper. Id. at 166. In the process the officer found incriminating evidence in plain view — the Court held the evidence admissible. Id.
        The circumstances in these cases are dissimilar from the facts here. In Poe’s case the issue is not whether an inventory search meets the constitutional standard, but whether the stop itself qualifies under the community caretaking function.
The question is was Officer Marszalek’s stop of Poe reasonable in the circumstances. We hold it was not.

 The public need in this case is slight. People commonly become lost, if in fact Officer Marszalek’s assumption about Poe’s driving was correct. Police officers do not normally pull someone over because they believe the operator of the vehicle needs directions. The intrusion on the privacy of the citizen, however, is great. The ordinary citizen would not expect a police officer to activate his emergency lights and effect a stop with which the citizen must comply without the stop being supported by some sort of traffic violation or criminal activity. Poe, of course, was free to stop the officer and ask directions. If he had initiated the stop, we would have a different situation.
Officer Marszalek’s belief that Poe may need directions is not a valid basis to stop him in these circumstances. Officer Marszalek observed no traffic violations, no criminal activity, and no evidence such as a flat tire, flashing lights, jumper cables, a raised hood or any other indication that Poe required assistance.

 The community caretaking function does not provide justification for the stop in this case. Whether it would provide justification in other circumstances we leave for another day.
        The decision of the circuit court is reversed and the case is remanded for proceedings consistent with this opinion.





Justice Roach dissent provides excellent discussion of cases that justify Harmless Error review

Tuesday, June 20th, 2006

Justice Roachs dissenting opinion in   Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 10/20/2005) provides an enlightening discussion of situations that merit the application of the Harmless Error Rule consideration. 

While his opinion was a dissent in this case, it should be considered in any discussion of this issue, where one must determine if a case deserves Harmless Error consideration.
    Our research finds application for the Harmless Error rule going back to English Common Law.  The Ky. Rules of Civil Procedure recognize the Harmless Error Rule in CR 61.01 HARMLESS ERROR.
 The Ky. Rules of Criminal Procedure in the same wording as CR 61.01 applies RCr 9.24 to criminal procedure. A substantial or palpable error is set out in CR 61.02 for civil cases, but also applies to criminal appeals.

    Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 10/20/2005)

Main points mentioned by Justice Roach

1)  the United States Supreme Court has strictly limited those cases where harmless error is inapplicable, having recognized that “most constitutional errors can be harmless.

2) The Supreme Court itself has repeatedly identified only six structural errors.

3) the Supreme Court meant for its lists of structural errors in Fulminante and Neder to be exhaustive.

[119]    After noting that the evidence against Hayes was “overwhelming” and rejecting all of his claims of error save one relating to voir dire, the majority opinion, in a conclusory fashion, proclaims the voir dire error is not subject to harmless error. Because the majority opinion relies on inapplicable cases and refuses to consider harmless error, I dissent. …

[137]    I agree with the Sixth Circuit that the Constitution does not require that the Fifth Amendment privilege against self-incrimination “must also be covered in voir dire.” Id. Thus I cannot conclude that it was an abuse of discretion for the trial court not to allow Appellant to ask his questions on that subject. And because the trial court ultimately instructed the jury on that privilege, I cannot say that “the trial court’s failure to ask these questions . . . render[ed] the defendant’s trial fundamentally unfair’ so as to require reversal. Mu’Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 1905 (1991).
[139]    Equally troubling, however, is the majority opinion’s proclamation that harmless error does not apply to the present situation. The opinion relies on Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004), to support this conclusion. In Oswald, the trial court sent jury questionnaires to 156 individuals, “more than 80 percent of whom responded that on the basis of the media coverage of the crime they thought that Oswald was guilty.” Id. at 479. It took over four days of voir dire to narrow the list to 29. On the last day the following exchange occurred
[140]    Roger Klitzka, in the course of being voir dired, said, “I know I’ve learned more in the last three days here sitting down there in that room about this case than I have since the day that it happened. . . . [A]ccording to what I hear, the young man is guilty of what he is being accused of and things like that and everything and l just think it’s just a waste of time.” The judge asked him whether he meant “it’s a waste to have the trial at all,” and Klitzka confirmed that that was indeed what he meant.
[141]    Apparently this was not just Klitzka’s personal opinion (he was not selected for the jury). The implication of what he said was that the entire jury pool had made up its mind that Oswald was guilty.
[142]    Id.
[143]    In the face of these statements by a prospective juror about the entire jury pool, the trial judge still refused to make the prospective juror respond to defendant’s counsel’s inquiries concerning what he had heard while the jury pool was discussing the case. The Seventh Circuit noted that “[e]yen though the circumstances strongly suggested that the jury had made up its mind that Oswald was guilty, the judge refused either to question Klitzka further or to recall for further questioning any of the prospective jurors who had already been voir dired.” Id. After noting other juror selection irregularities, the court concluded that there was “a high probability that some, maybe all, of the jurors who tried Oswald were biased.” Id. at 480. The divided court then reversed the conviction because the right “to be tried before an impartial tribunal . . . is one of the handful of rights of a criminal defendant that is not subject to the doctrine of harmless error.” Id. at 482.
[144]    It is clear, however, that Oswald addressed a fundamentally different issue than that presented in this case because it dealt with actual furor bias, namely the belief that the defendant was -quilty. Here there is no evidence that any juror held Hayes’s decision not to testify against him-there is no actual evidence of juror bias. Rather, the inquiry in this case is simply whether the trial court’s failure to allow a question at voir dire concerning the privilege against self incrimination is subject to harmless error analysis. This question is distinct from that addressed in Oswald, where the trial judge refused additional voir dire questioning after a juror’s testimony suggested other members of the jury pool were actually biased. Aside from the opinion of the majority, I am unable to find a case in America that would refuse to apply harmless error in these circumstances.
[145]    In fact, the United States Supreme Court has strictly limited those cases where harmless error is inapplicable, having recognized that “most constitutional errors can be harmless.” Fulminante, supra, at 306, 111 S.Ct. 1246.
 ”[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
 Indeed, we have found an error to be “structural,” and thus subject to automatic reversal, only in a “very limited class of cases.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction)).
[147]   Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833 (1999) (alterations in original, emphasis added). The Supreme Court recently reaffirmed this principle, stating that “[i]t is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake’s effect on the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, -, 124 S.Ct. 2333, 2339 (2004); see also United States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) (“The Court has found structural errors only in a very limited class of cases”); United States v. Padilla, 415 F.3d 211, 219 (1st Cir. 2005) (stating that the Supreme Court has “recognized the existence of a tiny class of structural errors” that “includes only the most pervasive and debilitating errors”).
[148]   The Supreme Court itself has repeatedly identified only six structural errors.       E~,, Neder, 527 U.S. at 8, 119 S.Ct. at 1833 (citing Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) and its recognition of structural error in only six circumstances:
 (1) a total deprivation of the right to counsel;
(2) lack of an impartial trial judge;
(3) unlawful exclusion of grand jurors on the basis of race;
 (4) denial of the right to self-representation at trial;
 (5) denial of the right to a public trial; and
 (6) an erroneous reasonable doubt instruction to the jury); see also Gonzalez-Huerta, 403 F.3d at 734 n.5 (noting the six structural errors the Supreme Court has identified); Padilla, 415 F.3d at 219 (same); Lewis v. Pinchak,348 F.3d 355, 358 (3d Cir. 2003) (same); State v. Torres, 93 P.3d 1056, 1059-1060 (Ariz. 2004) (same).
[149]    Recently, in a unanimous en – banc decision, the Eighth Circuit surmised “that the Supreme Court meant for its lists of structural errors in Fulminante and Neder to be exhaustive.” United States v. Allen, 406 F.3d 940, 945 (8th Cir. 2005) (en banc).
 The North Carolina Supreme Court has also declined to extend structural error analysis beyond the “six cases enumerated by the United States Supreme Court.” State v. Garcia, 597 S.E.2d 724, 745 (N.C. 2004). This conclusion is further supported by the fact that the Supreme Court has had several opportunities to expand its list of structural errors, but has consistently refused to do so. See, e.g., Johnson; Neder.
Even if one were not persuaded that the list of structural errors in Fulminante and Neder is exhaustive, the majority opinion has utterly failed to make its case that the alleged voir dire error-a relatively minor event at most-is within the “tiny class of structural errors” that includes only the “most pervasive and debilitating errors. “Fadilia, 415 F.3d at 219.
 It simply strains reason for the majority to claim that the alleged error at issue was so pervasive and debilitating as to infect “the framework within which the trial proceed[ed],” thus allowing Appellant to evade harmless error review through the application of the structural error doctrine. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
[150]    Moreover, our own Criminal Rules require that we undertake harmless error review:
[151]    No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights_of the parties.
[152]    CR 9.24 (emphasis added). Absent some overriding constitutional mandate, we must determine whether an error is harmless before finding that an error is reversible. Since there is no evidence that a juror who was seated drew an adverse inference against Harrison and since the jury was properly instructed, I cannot discern any error that affected his substantial rights.

[153]         III. CONCLUSION

[154]    In accordance with the foregoing discussion, I would affirm Hayes’s convictions based on the overwhelming evidence against him.

[155]    I agree with the majority’s opinion as to Harrison, though I would affirm his conviction for possession of drug paraphernalia.

[156]    Graves and Wintersheimer, JJ., join this dissenting opinion.

For personal bio of Justice Roach please go to:


Tuesday, June 20th, 2006




U.S. v. Isaacs, 493 F.2d 1124 (C.A.7 (Ill.), 1974)
Discussion of Executive Privilege and Immunity from Prosecution
Criminal Prosecution of an Incumbent President
 The most interesting discussion is in the case of U.S. v. Isaacs, wherein the 7th. Circuit Court of Appeals upheld the conviction of former Gov. Otto Kerner.   Kerner was appointed as a Federal Judge and prosecuted for actions taken while he was Governor of Illinois.

He raised the issue that he could not be prosecuted criminally prior to a formal impeachment conviction.  The 7th. Circuit denied that defense, and cites a long list of officials who were prosecuted prior to their impeachment. The weight of the authorities, hold for the proposition that there is no such legal theory as “absolute immunity from criminal prosecution of a public official� recognized by the courts in the United States.


U.S. v. Isaacs, 493 F.2d 1124 (C.A.7 (Ill.), 1974)

  (LawReader Comment: This case includes prosecution of Otto Kerner. Otto Kerner was the Democratic governor of Illinois in 1960. Later he was later appointed a Federal Judge.  While a Federal Judge he was prosecuted for actions taken as governor. His prosecution and conviction occurred prior to impeachment proceedings. The Court held that a civil official does not have the right to forestall a criminal prosecution prior to impeachment.)
 Following a six-week trial before a jury in the Northern District of Illinois, Theodore J. Isaacs and Otto Kerner, Jr., were found guilty on February 19, 1973 of a variety of offenses arising out of their activities on behalf of certain Illinois racing interests in return for bribes of more than $150,000 each. Isaacs and Kerner were both convicted on all those counts of an indictment which charged an 18 U.S.C. 371 conspiracy to violate the Travel Act, 18 U.S.C. 1952 and the Mail Fraud Act, 18 U.S.C. 1341 (Count I); use of interstate facilities in furtherance of bribery, 18 U.S.C. 1952 (Counts II through V) and mail fraud, 18 U.S.C. 1341 (Counts VI through XIII). Kerner was also convicted of perjury before a grand jury, 18 U.S.C. 1623 (Count XIV), false statements to Internal Revenue agents, 18 U.S.C. 1001 (Count XV), tax evasion, 26 U.S.C. 7201 (Count XVI) and false statement in a tax return, 26 U.S.C. 7206(1) (Count XVII). Isaacs was also convicted of tax evasion, 26 U.S.C. 7201 (Count XVIII), and false statement in a tax return, 26 U.S.C. 7206(1) (Count XIX).
 Turning the pages of history, the Supreme Court said in an 1882 decision, United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 261, 27 L.Ed. 171, that:
        No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.
        It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
        Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, a United States Senator was convicted, among other things, of having taken a bribe in violation of what is now 18 U.S.C. 201. He argued that conviction would expel him from the Senate and that under the Constitution the Senate had sole power of expulsion. The Court rejected the contention, quoted with approval from United States v. Lee, and found no violation of the principle of separation of powers.
        Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100, Mr. Justice Douglas said in his dissenting opinion, Ibid. at 140, 90 S.Ct. at 1682: ‘If they (federal judges) break a law, they can be prosecuted.’ Mr. Justice Black in his dissent said, Ibid. at 141, 90 S.Ct. at 1683, that ‘* * * judges, like other people, can be tried, convicted, and punished for crimes * * *.’
        United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507, a Senator was charged with a 201 violation. The trial court held that the Speech or Debate Clause precluded criminal prosecution. The Supreme Court reversed and found no constitutional violation. The Court said, 408 U.S. at 520, 92 S.Ct. at 2541:
        The sweeping claims of appellee would render Members of Congress virtually immune from a wide range of crimes simply because the acts in question were peripherally related to their holding office. Such claims are inconsistent with the reading this Court has given, not only to the Speech or Debate Clause, but also to the other legislative privileges embodied in Art. I, 6.
        Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583, was concerned with the validity of a subpoena requiring the assistant of a Senator to appear as a witness before a federal grand jury. The Senator intervened and asserted a violation of his constitutional privileges. With reference to the Freedom from Arrest Clause, the Court said, 408 U.S. at 615, 92 S.Ct. at 2622:
        It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members. * * *

Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons.
        Finally, we have O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, decided January 15, 1974. The Court, although its language was general and perhaps dictum, touched on the vulnerability of judges to criminal process, and said, 414 U.S. 488, 503, 94 S.Ct. 669, 680, 38 L.Ed.2d 674:
• * * we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights. Cf. Exparte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879).
• On the contrary, the judically fashioned doctrine of offical immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress * * *’ Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972).
        Kerner’s argument for the privilege which he claims, is not supported by ‘the precise words used in any prior case, and surely not on the sense of those cases, fairly read.’ Brewster, 408 U.S. at 516, 92 S.Ct. at 2539.
 We conclude that whatever immunities or privileges the Constitution confers for the purpose of assuring the independence of the co-equal branches of government they do not exempt the members of those branches ‘from the operation of the ordinary criminal laws.’
Criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government. Historically, the impeachment process has proven to be cumbersome and fraught with political overtones. We believe that the independence of the judiciary is better served when criminal charges against its members are tried in a court rather than in Congress. With a court trial, a judge is assured of the protections given to all those charged with criminal conduct. The issues are heard in a calm and reasoned manner and are subject to the rules of evidence, the presumption of innocence, and other safeguards. 408 U.S. at 519-520, 92 S.Ct. 2531.
 Kerner argues that trial and conviction of a federal judge frustrates the separation of powers concept because the executive branch would indict and prosecute. The Constitution makes all ‘civil officers’ subject to impeachment. The issue, then, is whether any civil officer is subject to pre-impeachment indictment. This presents no separation problem. Brewster points out, 408 U.S. at 522, n. 16, 92 S.Ct. 2531, the barriers, such as indictment, burden of proof, and presumption of innocence, which a prosecutor must face. With co-equal branches of government, the potential of abuse by any one of them is inherent. However, the system of checks and balances, a free press, and public resentment toward any attempted domination all work to preserve the guaranteed independence of each branch.
        On the basis of the text of the Constitution, its background, its contemporaneous construction, and the pragmatic consequences of its provisions on impeachment, we are convinced that a federal judge is subject to indictment and trial before impeachment and that the district court had jurisdiction to try defendant Kerner.

Discussion of Executive Privilege and Immunity from Prosecution

COLUMBIA UNIVERSITY PRESS – This entry is from Wikipedia, the leading user-contributed encyclopedia:
The use of executive privilege decreased during the 1960s, but it became the crux of the constitutional crisis created by Watergate, a series of scandals involving President Richard M. Nixon and his associates. When Congress sought to obtain White House tapes containing Oval Office conversations, Nixon refused to turn them over, claiming that the tapes were subject to absolute executive privilege and asserting that the judiciary had no authority to order their production or inspection. Eventually the dispute reached the Supreme Court, where, in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court ruled against Nixon.
While acknowledging the importance of the president’s claims, the Court stated that “neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”
 In its opinion, therefore, the Court explicitly recognized the president’s authority to assert executive privilege, but ruled that the use of executive privilege is limited, not absolute. Furthermore, the Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privilege. While the Court affirmed the use of executive privilege, therefore, it determined that in this case, the right of the U.S. people to full disclosure outweighed the president’s right to secrecy. This momentous decision soon led to Nixon’s resignation from the office of president.
                      COLUMBIA UNIVERSITY PRESS –

EXECUTIVE PRIVILEGE, exemption of the executive branch of government, or its officers, from having to give evidence, specifically, in U.S. law, the exemption of the president from disclosing information to congressional inquiries or the judiciary. Claims of executive privilege are usually invoked to protect confidential military or diplomatic operations or to protect the private discussions and debates of the president with close aides. Efforts by various presidents since Eisenhower to gain absolute and unqualified privilege have been rejected by the courts, though they remain inclined to support most claims of executive privilege. Where criminal charges are being brought against a president, as in the case of Richard Nixon, the claims of executive privilege are weakest; during the process leading to the impeachment of President Bill Clinton, numerous claims made by the White House were dropped when it was clear courts would not uphold them.

The Supreme Court did not reject that claim out of hand; it noted, in fact, “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” As the Court stated, “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” This is very similar to the logic that the Court had used in establishing an “executive immunity” defense for high office-holders charged with violating citizens’ constitutional rights in the course of performing their duties.
The Court did not, on the other hand, accept Nixon’s privilege argument on the facts of that case. Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.

The concept of executive privilege is a legally murky one, since the Constitution does not mention it anywhere. The history of the doctrine underscores that point, since Presidents have generally sidestepped open confrontations with Congress and the courts over this issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.
Jefferson set the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the President. As for Jefferson’s claim that disclosure of the document would imperil public safety, Marshall held that the court, not the President, would be the judge of that. Jefferson complied with Marshall’s order, but claimed he was doing so voluntarily

Criminal Prosecution of an Incumbent President
By John H. Kim, Esq.

“….in America THE LAW IS KING. For as in absolute governments the King is Law, so in free Countries the law ought to be king; and there ought to be no other.�
Thomas Paine, Common Sense 57 (Philadelphia 1776)
II) Prosecution of Vice President and Other Federal Officials
While there are different legal opinions about the President, there is a general consensus that Vice President and other “civil officers� of the United States can be indicted and prosecuted while they are still in office, prior to any impeachment. There are numerous legal cases that have firmly established this rule. For instance, in 1804, Aaron Burr, while Vice President, was indicted for the killing of Alexander Hamilton both in the state of New York and New Jersey. Burr never claimed any immunity from prosecution in the case, and had to serve out his office with the stigma of indictment.

Likewise, Spiro T. Agnew, while Vice President, was investigated by the U.S. Attorney in Baltimore for allegedly receiving payoffs from contractors when Mr. Agnew was governor of Maryland. Before entering a plea bargain to a reduced charge and resignation, Vice President Agnew made a motion to the federal court to enjoin the grand jury proceedings against him on the ground of immunity while in office. In response, then-Solicitor General Robert Bork filed a brief arguing that “considerations based upon the Constitution’s text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.�3 (underline added for emphasis)
Subsequently, the Office of Legal Counsel of the Department of Justice, under President Clinton, reaffirmed Bork’s conclusion, stating that “the Constitution requires recognition of a presidential immunity from indictment and criminal prosecution while the President is in office.�4 This seems to be, undoubtedly, the current position of the U.S. Department of Justice under the Bush administration as well.

III) The U.S. Constitution and the Judicial Interpretation
Does the Constitution really provide such an immunity exception for the President?
The answer seems to be no for many reasons. Above all, no provision in the Constitution explicitly grants the President immunity from criminal prosecution. The only provision that provides any explicit immunity, for limited purposes, is for Members of Congress while they are in session.5

The most relevant and contentious provision in the Constitution is in Article I, Section 3, Clause 7:

“Judgment in the Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.�(underline added for emphasis).

From this, it is clear that an impeached President can be prosecuted thereafter.

Does this mean an impeachment must always precede a criminal prosecution?

How about the prosecution of a President who underwent but survived an impeachment process? Can such President be still prosecuted while in office?

Many federal judges and Members of Congress, when they were indicted for various crimes, in fact, raised the defense that they could not be prosecuted prior to impeachment
or that prior conviction or acquittal in the courts should bar impeachment by the Congress for the same offenses. However, the courts have largely rejected such defenses.6 In interpreting Art. I, Section 3, Clause 7 (the Impeachment Judgment Clause), the Court of Appeals in U.S. v.Isaacs held that the Clause “does not mean that a judge may not be indicted and tried without impeachment first. The purpose of the phrase may be to assure that after impeachment a trial on criminal charges is not foreclosed by the principle of double jeopardy…�7

Thus, federal judges such as Hastings, Clairborne and Issacs were all prosecuted first, prior to impeachment. In the case of Judge Hastings, he was even acquitted in a jury trial but still impeached by the Congress subsequently.

In other words, impeachment proceeding and criminal prosecution are two distinct, separate processes, although both can be related to each other. According to District Judge Gerhard Gesell:

“Impeachment trials are sui generic: in several instances in the Constitution, impeachment is distinguished from criminal proceedings….The Framers understood that impeachment trials were fundamentally political….�
IV) Immunity of Federal Officials From Criminal Process
It is to be noted that there is a major difference in the American doctrine of immunity from civil liability and immunity from criminal liability. As one law professor observed, “while courts have invented doctrines of official immunity, they have done so only in civil cases, not criminal ones.�9 In accord with this view, in Imbler v. Pachtman, the U.S. Supreme Court stated that “this Court has never suggested that the policy considerations which compel civil immunity for certain government officials also place them beyond the reach of the criminal law.�10

 In denying immunity for criminal conduct, the Court in U.S. v. Isaacs also pointed out that “criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government.�11

Thus, it is not surprising that the interest of criminal justice and public interest overruled the claims of executive privileges of the President, as Nixon was forced to turn over records of his conversation with his advisers in response to a subpoena in a criminal case.12

 Due to the disclosure of the White House tapes and documents relating to the Watergate break-in, Nixon became the first President to resign his office as the impeachment proceedings started. Although he was not impeached, Nixon faced the distinct possibility of a criminal prosecution after his resignation. Thus, he sought and received a pardon from criminal liability by his successor, President Ford.

Even the Congress is in agreement with the above general rule that all federal officials are subject to criminal law and process. In the aftermath of the “Watergate� scandal, the Congress established the office of “special prosecutor� under the Ethics in Government Act in 1978. The law, although expired now unfortunately, specifically authorized the special prosecutor (a.k.a. “independent counsel�) to prosecute certain high officials, including the President.13


Nothing in the international law, U.S. Constitution, federal statues or court cases provides a blanket immunity for an incumbent President or other federal officials from criminal prosecutions. History and public policy also argue against such an immunity.

As the U.S. Supreme Court pointed out long ago, “no man in this country is so high that he is above the law….All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.�20 It is high time for the American people to uphold and defend this fundamental principle of equal justice for all, which is one of the most important American values now ingrained in the 14th Amendment of the Constitution (“equal protection of the laws�).
“The Secret Downing Street Memo,� The Sunday Times, May 1, 2005.
2 See “Mortality Before and After the 2003 Invasion of Iraq: Cluster Sample Survey,� The Lancet, Oct. 29, 2004 (published online,
3 Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity, filed Oct. 5, 1973, D. Md. No. 73-965.
4 Memorandum from Randolph D. Moss, Asst. Attorney General, Re: A Sitting President’s Amenability to Indictment and Criminal Prosecution, Oct. 16, 2000.
5 See Art. I, Section 6.
6 See U.S. v. Isaacs, 493 F.2d 1124; U.S. v. Hastings, 681 F.2d 706; U.S. v. Claiborne, 727 F.2d 845; Burton v. U.S., 202 U.S. 344; and U.S. v. Helstoski, 442 U.S. 477.
7 U.S. v. Isaacs, 493 F.2d 1124, 1142.
8 Hastings v. U.S. Senate, 716 F. Supp. 38, 41 (D.D.C. 1989).
9 Eric M. Friedman, “To Catch a King,� Legal Times, March 19, 1997.
10 424 U.S. 409, 429 (1976); See also Gravel v. U.S., 408 U.S. 606, 627.
11 U.S. v. Isaacs, 493 F.2d 1124, 1144.

12 U.S. v. Nixon, 418 U.S. 683 (1974).
13 See 28 U.S.C. 591- .
14 1975 Report of the Watergate Special Prosecutor Task Force, at 122; See also Ken Gormley, “Impeachment and the Independent Counsel: A Dysfunctional Union,� 51 Stanford Law Review 309, 345 (1999). Gromley states that Jaworski also wanted to help the Congress since Nixon refused to cooperate with the subpoena issued by the House Judiciary Committee.
15 Memorandum dated Feb. 12, 1974, p. 10; See 27 Hofstra Law Review 677, Appendix, 1999.
16 CNN, Jan. 21, 2001.
17 AP, March 6, 2002.
18 See Nuremberg Principles; 1948 Convention on the Prevention and Punishment of the Crime of Genocide; also the 1998 Rome Statue of International Criminal Court.
19 See 28 C.F.R.. 600.1.
20 U.S. v. Lee, 106 U.S. 196, 220 (1882).

Can the Governor be removed from office if he is convicted by Franklin District Court

Monday, June 19th, 2006

        Can the legislature override the Kentucky Constitution?                       

             By Stan Billingsley, Senior Editor of

    The Herald-Leader newspaper, and WAVE television in Louisville have reported (incorrectly we believe) that Chief Justice Joseph Lambert has ruled that Governor Fletcher enjoys absolute immunity from prosecution.  As stated in the accompanying article posted by LawReader, our reading of the decision in which the Chief Justice placed a footnote, concludes that one cannot correctly say that the Chief Justice made such a ruling.Lambert made a comment in a footnote to the effect that there was a strong argument for that proposition. He did not make that theory part of his official ruling.  One can read into his comment what they wish, but this footnote did not commit the Chief Justice on this subject. However, if the Governor is convicted we don’t agree with the Chief Justice that there is indeed a “strong argumentâ€? that the Governor would enjoy immunity from impeachment based solely on a conviction by the Franklin District Court. If there is an argument about such immunity it is not found in the Kentucky Constitution.

    In this comment we will explore this theory a bit further.

Can the Governor be impeached and removed from office if he is convicted of a statute passed by the General Assembly? 

One of the offenses for which the Governor was indicted provides in the penalty provision that a party who is convicted shall be removed from office.

First let us examine the provision of the Kentucky Constitution regarding impeachment. There are three sections that are relevant to this discussion:

1) Kentucky Constitution – Section 66 – Power of impeachment vested in House.
“The House of Representatives shall have the sole power of impeachment.�

2) Kentucky Constitution – Section 67 – Trial of impeachments by Senate.

  “All impeachments shall be tried by the Senate. When sitting for that purpose, the Senators shall be upon oath or affirmation. No person shall be convicted without the concurrence of two-thirds of the Senators present.�

3) Kentucky Constitution – Section 68Civil officers liable to impeachment — Judgment — Criminal liability.

“The Governor and all civil officers shall be liable to impeachment for any misdemeanors in office; but judgment in such cases shall not extend further than removal from office, and disqualification to hold any office of honor, trust or profit under this Commonwealth; but the party convicted shall, nevertheless, be subject and liable to indictment, trial and punishment by law. “

    These Constitutional provisions spell out a process where the House “indicts� a public official of a charge which they believe justifies impeachment, but the Senate must then conduct a “trial� of the official.

Technically, a public official is “impeached� by the vote of the House, but he is not punished or removed from office until he has been convicted by the State Senate.

      Under the misdemeanor charge pending against Governor Fletcher, the legislature has added a provision that says the official convicted under that criminal charge is to be removed from office. This procedure if followed to the letter, would mean that the legislature has bypassed Sections 66 and 67 of the Kentucky Constitution.

However, Section 68 adds language that qualifies Sections 66 and 67.

Section 68 says: ““The Governor and all civil officers shall be liable to impeachment for any misdemeanors in office; but judgment in such cases shall not extend further than removal from office,..�

The first clause in that language permits any civil officer to be �liable� to the impeachment process for any misdemeanors committed while he is in office.  The next clause says  “judgment in such cases shall not extend further than removal from office�.

The issue then becomes what does judgment mean in the context of this section. We suggest that it refers to a judgment of impeachment, and not a judgment of the District Court. The limiting language “shall not extend further than removal from office� means that if a public official is impeached by the legislature, he cannot be fined or imprisoned by action of the legislature in rendering their impeachment “judgment�.  The impeaching bodies of government can remove a civil officer from office, but they cannot also impose a criminal penalty.

The next sentence in Section 68 says: “the party convicted shall, nevertheless, be subject and liable to indictment, trial and punishment by law. “ This sentence means that the civil officer is not immune from prosecution in the courts. This means that the Governor does not enjoy “absolute immunity� from prosecution for a criminal offense. The term “convicted� refers to the final action of the State Senate.  The impeachment process and the criminal process are two separate and distinct procedures, and they both co-exist.  Clearly, the conviction of a public official by a court cannot result in the automatic removal from office, the removal from office power is reserved solely to the impeachment process. 

 After reading Section 68 we cannot find a “strong argument” for the proposition that a Governor enjoys “absolute immunity” either from impeachment or criminal conviction.

    Nothing in Section 68 says a civil officer cannot be “indicted, tried or punished by lawâ€? until after the impeachment process.  To say that a civil official enjoys immunity from prosecution prior to his impeachment, is a theory that is not spelled out in Sections 66, 67 or 68.  Perhaps there will be a future court ruling to that effect…but there is no such ruling at this point to that effect. 

The situation where a civil official has been convicted by a criminal court and sent to prison but still remains “in office� and still receives a salary is not a novel occurrence. History has presented a number of factual instances where this very thing has occurred.

    It is well known that a constitutional provision overrides any act adopted by the legislature which conflicts with the constitution.  The judiciary is only empowered to consider whether any act of the legislature is “unconstitutional� (See: Marbury v. Madison). The judiciary does not have the constitutional authority to remove a constitutional officer.

A conviction by a public official by a court results in the imposition of a criminal penalty. That official can only be removed from office by the exclusive impeachment process set out in the Constitution. This procedure requires the legislature to impeach and to try the public official. This power of impeachment is not granted to the judiciary.

   If a governor is convicted of any offense, or if he displeases the legislature on a political issue, or if his competency is questioned, then the legislature may avail themselves of the impeachment process. But Sections 66 and 67 provide the exclusive means of removal from office. Nothing in the law requires the legislature to impeach a civil official who is convicted for a violation of the law by a court.

Therefore, the potential conviction of Governor Fletcher (or any future public official ) who are subject to impeachment, may indeed be impeached, but the exclusive process set out in Sections 66 and 67 must be followed. 

This means, we believe, that any conviction of a public official only sets up a possible basis for removal from office, and any interpretation that would suggest that the legislature can pass a statute that ignores Sections 66 and 67 is incorrect and not well founded in the law.

    The Kentucky Constitution in Section 68, clearly says a public official is not immune from criminal prosecution.  Nothing in the Kentucky Constitution says a public official, even the Governor, is above the law or immune from punishment for criminal acts.    But the penalty or sanction of removal from office is quite a different matter…and we conclude that any conviction by the Franklin District Court cannot be interpreted to automatically remove Governor Fletcher from office.  Such an interpretation would clearly violate Sections 66 and 67 of the Kentucky Constitution. Such an interpretation would mean that the Legislature could ignore the Kentucky Constitution at will.

We concede that a Governor may pardon a public official.  Many argue that he can even pardon himself. We leave those issues to others to discuss. Nevertheless, we can see no basis for the proposition that a conviction of the Governor of a criminal offense, acts to automatically remove him (or any other elected official) from office. Such a conviction only acts to provide a possible basis for removal from office by the formal impeachment process.

When one considers the primacy of Constitutional provisions, it is clear that the legislature cannot properly adopt a statute that bypasses the mandatory removal process.

   An interesting question remains unanswered by this discussion.   Can a Governor who pardons himself thereby provide himself with immunity from impeachment?  Such a theory would be a stretch and we will leave that issue for another day.