Archive for May, 2006

Ann Shake will not seek Fletcher appointment to interim seat

Wednesday, May 31st, 2006

Ann Shake is one of the two candidates for the Supreme Court vacancy created by the retirement of Justice Martin Johnstone.  She has announced that she will not seek the interim appointment that will be created when Johnstone steps down sometime before July 1.

The Judicial Nominating Commission will nominate up to three candidates for the vacancy. The Governor will select one of the three nominees to serve until replaced by the winning candidate in this November’s election.

Court of Appeals Judge William McAnulty, Jr., who will oppose Shake in the November election, has said that he would accept the appointment by Fletcher if it is offered to him.  Shake said that she felt it likely that future cases regarding the Merit System investigation and the Governors indictment for three misdemeanors might appear before the court, and she did not want to give the appearance of being beholden to the Governor.  McAnulty said if that occurs he would recuse himself.

It is felt by some that an interim appointment gives the interim Judge a competitive advantage in the general election, but others point out that many interim appointments are not successful at the polls.

Governor Fletcher vetoed a portion of the judicial budget bill that financed the special elections that would be held for an estimated nine vacancies in judicial offices that are expected to exist after July 1.  By his veto, the Governor has created a situation where he will be appointing as many as nine new judges.  His veto will not effect the regularly scheduled Supreme Court elections this November.
Some court watchers are suggesting that candidates for the nine judicial vacancies that will be filled by the Governor will be tainted by accepting such appointments.  The Governor’s low poll numbers and pending trial on misdemeanor charges can be expected to become an issue in subsequent elections of any judge who has benefited from accepting an interim appointment.

Lt. Gov. Steve Pence clears path to run for Governor in 2007

Wednesday, May 31st, 2006

Lt. Gov. Steve Pence announced today that he was resigning his position as Justice Cabinet Secretary and that he would not run on Gov. Ernie Fletcher’s ticket as Lt. Governor in the 2007 gubernatorial race.  His resignation will be effective in August.

These are considered the first steps he must take in order to prepare to make a run for the Governor’s chair.  Until now he has made statements that indicated he would remain on Fletcher’s ticket.

Under Ky. election law, the Governor must have a candidate for Lt. Governor to run with him.

Throughout the Merit System investigation Pence has distanced himself from Fletcher, and they have had few public appearances together.

Supreme Court Will Hear Case on High Punitive Damages

Wednesday, May 31st, 2006

The Supreme Court on Tuesday signaled its return to the thorny issue of high punitive damages, agreeing to review a $79.5 million verdict against Philip Morris USA for the death of a single Oregon smoker.

The Court added Philip Morris USA v. Mayola Williams to its docket for the fall, responding to pleas by the business community for clearer guidance on when punitive damages are excessive.

The Philip Morris dispute is the Court’s first punitive-damages case since State Farm v. Campbell, the 2003 ruling that business advocates hoped would temper spiraling punitive-damage verdicts in courtrooms nationwide. The State Farm decision limited consideration of nationwide harm beyond the specific case in litigation and said punitive damages that exceeded compensatory damages by more than a 9-1 ratio were constitutionally suspect.

But since then, lower state and federal courts have varied widely in their interpretations of the State Farm decision, in some instances allowing high punitive damages that far exceeded the single-digit ratio if corporate wrongdoing was especially egregious. “We thought the Court spoke clearly enough in State Farm, but maybe the Court needs to say it again, more clearly and with emphasis,” said Robin Conrad, senior vice president of the National Chamber Litigation Center, which filed a brief in the case urging the Court to grant review.

In the case before the Court, Korean War veteran Jesse Williams died of lung cancer in 1997 after smoking for more than 40 years. His widow sued the company, and during the trial her lawyers urged the jury to consider “how many other Jesse Williams[es]” might have died because of Philip Morris’ fraud and negligence. The jury awarded her $821,485 in compensatory damages and $79.5 million in punitives. Even when both awards were reduced on appeal, the ratio of punitives to compensatories was 39-to-1. The Oregon Supreme Court upheld the original $79.5 million verdict, applying the guideposts of State Farm and BMW v. Gore, an earlier Supreme Court precedent that allowed consideration of the reprehensibility of the defendant’s conduct.

In its petition to the Supreme Court, Philip Morris argued that the Oregon Supreme Court’s analysis, if upheld, would unfairly allow limitless punitive damages as long as a high degree of reprehensibility is found. “A jury may never punish a defendant for harms to non-parties because doing so would inevitably expose the defendants to the risk of unconstitutional duplicative punishments,” wrote Andrew Frey of Mayer, Brown, Rowe & Maw, author of the Philip Morris brief.

But Robert Peck, lawyer for Mayola Williams before the Court, said in an interview that the Oregon Supreme Court “scrupulously applied” the Court’s precedents, which he says still allow for high damages in egregious cases.

Peck also said the fact that the Court granted review in the case does not necessarily mean it will restrict punitive damages further, even though two new justices have joined the Court since State Farm. “We don’t have much information about the new justices’ views on punitive damages, but they both come from a history of respect for juries,” said Peck, whose for-profit Center for Constitutional Litigation rents space from the Association of Trial Lawyers of America and counts ATLA among its clients.

Tony Mauro  Reprinted from Legal Times May 31, 2006

Justices narrow First Amendment protections for government whistleblowers

Wednesday, May 31st, 2006

The U.S. Supreme Court narrowed First Amendment protections for government-employee whistleblowers in a decision issued May 30.  The Court’s 5-4 ruling in Garcetti v. Ceballos exposed continuing sharp disagreement over an issue that has confounded the Court for years.

In the whistleblower decision, Justice Anthony Kennedy, writing for the majority, said, “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The ruling was a victory for former Los Angeles District Attorney Gil Garcetti, who was sued by a deputy, Richard Ceballos. Ceballos claimed he was punished for revealing misrepresentations in a sheriff’s affidavit in a pending case. His supervisors proceeded with the prosecution in spite of Ceballos’ claims, and Ceballos was called as a defense witness.

The 9th U.S. Circuit Court of Appeals sided with Ceballos, ruling that his allegations of wrongdoing were protected by the First Amendment. But the high court reversed the ruling.

The case was argued twice before the Supreme Court, first while former Justice Sandra Day O’Connor was in office and again in March after Justice Samuel Alito Jr. took her place. Alito provided the fifth vote against Ceballos.

Kennedy’s ruling, while siding with Garcetti, said government employees do retain some First Amendment rights as citizens, and he noted the existence of state and federal whistleblower protection laws.

But dissenting justices said Kennedy’s opinion draws lines illogically and will be difficult to implement. Justice John Paul Stevens said, “It is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description.” Stevens also said the ruling could give employees the incentive to air their concerns publicly — with some First Amendment protection — before going to their superiors with the same concerns. Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer also dissented.

To read full text of this decsion go to: U.S. Supreme Court Recent decisions of the U.S. Sup. Ct.Slip Opinions – then select slip opinions, and then select
Garcetti v. Ceballos

No. 04–473. Argued October 12, 2005—Reargued March 21, 2006—Decided May 30, 2006
Respondent Ceballos, a supervising deputy district attorney, was asked by defense counsel to review a case in which, counsel claimed, the affidavit police used to obtain a critical search warrant was inaccurate. Concluding after the review that the affidavit made serious misrepresentations, Ceballos relayed his findings to his supervisors, petitioners here, and followed up with a disposition memorandum recommending dismissal. Petitioners nevertheless proceeded with the prosecution. At a hearing on a defense motion to challenge the warrant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Claiming that petitioners then retaliated against him for his memo in violation of the First and Fourteenth Amendments, Ceballos filed a 42 U. S. C. §1983 suit. The District Court granted petitioners summary judgment, ruling, inter alia, that the memo was not protected speech because Ceballos wrote it pursuant to his employment duties. Reversing, the Ninth Circuit held that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, and Connick v. Myers, 461
U. S. 138.
Held: When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Pp. 5–14.
(a) Two inquiries guide interpretation of the constitutional protections accorded public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See Pickering, supra, at 568. 
High Court Trims Whistleblower Rights

By GINA HOLLAND, Associated Press Writer

Tuesday, May 30, 2006


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(05-30) 14:54 PDT WASHINGTON (AP) –
The Supreme Court scaled back protections for government workers who blow the whistle on official misconduct Tuesday, a 5-4 decision in which new Justice Samuel Alito cast the deciding vote.


In a victory for the Bush administration, justices said the 20 million public employees do not have free-speech protections for what they say as part of their jobs.


Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security.


Supporters said that it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.


The ruling was perhaps the clearest sign yet of the Supreme Court’s shift with the departure of moderate Justice Sandra Day O’Connor and the arrival of Alito.


A year ago, O’Connor authored a 5-4 decision that encouraged whistleblowers to report sex discrimination in schools. The current case was argued in October but not resolved before her retirement in late January.


A new argument session was held in March with Alito on the bench. He joined the court’s other conservatives in Tuesday’s decision, which split along traditional conservative-liberal lines.


Exposing government misconduct is important, Justice Anthony M. Kennedy wrote for the majority. “We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties,” Kennedy said.


The ruling overturned an appeals court decision that said Los Angeles County prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff’s deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.


Kennedy said if the superiors thought the memo was inflammatory, they had the authority to punish him.


“Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission,” Kennedy wrote.


Stephen Kohn, chairman of the National Whistleblower Center, said: “The ruling is a victory for every crooked politician in the United States.”


Justice David H. Souter’s lengthy dissent sounded like it might have been the majority opinion if O’Connor were still on the court. “Private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy,” he wrote.


Souter was joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer also supported Ceballos, but on different grounds.


The ruling upheld the position of the Bush administration, which had joined the district attorney’s office in opposing absolute free-speech rights for whistleblowers. President Bush’s two nominees, Alito and Chief Justice John Roberts, signed onto Kennedy’s opinion but did not write separately.


“It’s a very frightening signal of dark times ahead,” said Tom Devine, legal director for the Government Accountability Project.


Employment attorney Dan Westman said that Kennedy’s ruling frees government managers to make necessary personnel actions, like negative performance reviews or demotions, without fear of frivolous lawsuits.


Ceballos said in a telephone interview that “it puts your average government employee in one heck of a predicament … I think government employees will be more inclined to keep quiet.”


Los Angeles County District Attorney Steve Cooley said in a statement that the ruling “allows public employers to conduct the people’s business without undue disruption and without turning routine personnel decisions into federal cases.”


The court’s decision immediately prompted calls for Congress to strengthen protections for workers.


Kennedy said that government workers “retain the prospect of constitutional protection for their contributions to the civic discourse.” They do not, Kennedy said, have “a right to perform their jobs however they see fit.”


The case is Garcetti v. Ceballos, 04-473.



Shopping for judges Fletcher aim: Remove, appoint way out of jam

Monday, May 29th, 2006

Reprinted from Lexington Herald Leader 
FRANKFORT – Last week, the attorney general’s office described as “judge-shopping” the attempts to recuse two Franklin District Court judges from presiding over criminal proceedings against Transportation Secretary Bill Nighbert and Gov. Ernie Fletcher.

As far as the governor is concerned, though, having someone other than Judge William “Guy” Hart Jr. handle the three misdemeanor charges he faces is just one item on a growing judicial-shopping list related to the legal troubles he faces as a result of his BlackBerry Jam hiring scandal. 
Fletcher already has been able to appoint two special justices (one of whom later recused himself) to sit on the state Supreme Court when it heard his appeal regarding the effect a blanket pardon has on the proceedings of the special Franklin County grand jury investigating merit system hiring in his administration.

Within the next month, he will have the opportunity to name replacements to fill the remaining terms of Franklin Circuit Judges William L. Graham and Roger Crittenden, both of whom have announced plans to take advantage of the increased pension benefits available to members of the judiciary who retire before July 1. 
Judge Graham has presided over the special grand jury’s activities and related legal issues from the outset of what is now a year-long (and counting) investigation.

A couple of open-records cases, one involving the contents of Fletcher’s “Sadie” e-mail account and the other relating to the legal bills amassed by the administration as a result of the investigation, remain pending before Judge Crittenden. 
As many as three Supreme Court justices also may opt to improve their pensions by retiring early, thus allowing Fletcher to appoint their temporary replacements.

No doubt, the governor must be heartened by the prospect that a recusal and his ability to make appointments in strategic spots might improve his legal odds. In the long run, though, I’m not sure how much good Fletcher’s shopping list can do him. 
For instance, let’s say a substitute for Judge Hart dismisses the indictments against the governor, or a temporary replacement for Judge Graham puts some legal roadblocks in the grand jury’s path.

Either way, you know the attorney general’s office would appeal. But I doubt that prosecutors would be in any rush to get that appeal to a Supreme Court dominated by Fletcher appointees. 
Those appointees can only help the governor on appeals that are heard by the end of the year. That’s when his appointees would give way to newly elected justices.

Next year, the court could have as many as five new members, if Fayette Circuit Judge Mary Noble beats Justice John Roach, who was appointed by Fletcher last year. At the very least, there will be four new justices. 
Even on an expedited track, it took four months to get from Judge Graham’s initial ruling in the pardon/grand jury case to oral arguments before the Supreme Court. A regular appeal can take several months longer to reach the state’s highest court.

So, the window of opportunity for Fletcher’s shopping list to do him any good is relatively small at the outset. And the inevitable scheduling delays that come into play whenever you start replacing sitting judges will make it smaller still. 
Throw in the time allotted for filing and hearing the flurry of motions and responses at each level, including motions for rehearings, and the likelihood that the appeal of any ruling in Fletcher’s favor gets heard by the Supreme Court this year grows ever smaller.

None of that will stop the governor from using his shopping list. If nothing else, this investigation has proven that he is single-minded in pursuing any and all avenues of escape from accountability for his administration’s actions. 

But like so many other excuses and ploys he has used, this one, too, may prove futile.

 By Larry Dale Keeling

Reprinted from Lexington Herald Leader



FBI lab scraps gunfire residue – Agency wont do analysis, putting evidence in doubt

Sunday, May 28th, 2006

FORENSIC EXAMINATIONS BY CRIME LABS Gunshot Residue on Hands Examinations FBI lab scraps gunfire residue – Agency won’t do analysis, putting evidence in doubt

 When a firearm is discharged, vaporous and particulate materials called gunshot residue (GSR) are expelled. After collecting gunshot residue from a suspected shooter’s hands, the major elemental components of most cartridge primer mixtures can be analyzed to associate a suspect with the recent discharge of gunpowder from a firearm. This examination is used to determine if a person was in the presence of gunshot residue within a limited time period after a weapon discharge.

FBI lab scraps gunfire residue – Agency won’t do analysis, putting evidence in doubt BY JULIE BYKOWICZ BALTIMORE SUN REPORTER ORIGINALLY PUBLISHED MAY 26, 2006 The FBI is no longer analyzing gunshot residue in its investigations, a blow to once highly regarded evidence used to suggest that a suspected criminal had fired a weapon. Lawyers, scientists and law enforcement officials across the country said they were astonished by the decision and said it could mean the end of using such evidence. It also could become a weapon for defense attorneys in pending cases and in efforts to overturn convictions. “If the premier forensic science organization in the world isn’t using gunshot residue, that certainly raises some questions about it,” said Timothy S. Brooke of the American Society for Testing and Materials, which sets the policies used by many police crime labs, including Baltimore’s. Special Agent Ann Todd, spokeswoman for the FBI Laboratory, said the change was communicated electronically to FBI field offices on March 15, though it has not been widely publicized. Todd said the FBI stopped analyzing gunshot residue because of a shift in priorities, not a lack of confidence in the science. The lab had performed the analysis for decades but in recent years had been receiving fewer than 10 requests per year, she said. The agency decided its resources were better used in “areas that directly relate to fighting terrorism,” she said. But the FBI’s abandonment of the evidence followed a closed-door summit last June to discuss its gunshot residue policies and subsequent tests at the agency’s crime lab in Quantico, Va. The resulting contamination study, obtained by The Sun, documents the presence of hundreds of particles consistent with gunshot residue in several areas of the lab. Such contamination could jeopardize criminal cases because it casts doubt on the origin of the residue in a sample. This marks the second time in a year that the FBI has distanced itself from forensic evidence. In September, the agency announced it had stopped making comparative bullet lead analyses, a four-decades-old technique that purports to link a fired bullet with a particular box of bullets. The FBI cited concerns about costs of maintaining the equipment and the resources necessary to do the examination as reasons for its decision, while saying it “still firmly supports the scientific foundation” of the analysis. But that change came on the heels of a National Academy of Sciences report that called comparative bullet lead analysis unreliable. “In my experience, forensic labs only abandon techniques they’ve been using for decades when they realize that what they’re doing is junk science,” said Michele Nethercott, co-chairman of the forensics committee of the National Association of Criminal Defense Lawyers and a public defender in Baltimore. Even as jurors – exposed to television shows such as CSI: Crime Scene Investigation – are increasingly hungry for forensic evidence, skepticism has grown about the way in which it is used in court. A key problem has been that all trace evidence, including gunshot residue, can be presented to jurors with a false degree of certainty. And some once-powerful prosecution tools, such as microscopic hair analysis and bite-mark comparisons, have been discredited in recent years. Gunshot residue is made up of the microscopic particles that explode from a gun when it is fired. The particles can be collected from suspects’ hands, analyzed and used as evidence in court. Called “GSR,” the particles float like ash and never disintegrate. There can be a danger that surfaces – from a police officer’s hands to laboratory work tables – can become contaminated and then contaminate fresh samples. An ASTM committee also is in the process of reviewing its policy about gunshot residue, which was last revised in 1995, said Brooke, director of ASTM’s technical committee operations. FBI agents, along with state and local police officers, scientists and academics, are on the review committee. On a local level, Baltimore prosecutors said they have been using the evidence sparingly in recent months, though the city Police Department’s crime lab turns over about 400 gunshot residue tests each year. Reports last year in The Sun raised questions about the gunshot residue analysis conducted by the city crime lab. A 2001 study found gunshot residue in testing areas that were supposed to be clean, according to internal police documents. Police officials have said they solved that problem by moving the testing area away from firing ranges. And unlike dozens of other agencies, including the Maryland State Police and, until March, the FBI, Baltimore’s crime lab counts a two-element particle as gunshot residue. Most agencies use a higher standard: considering only a three-element particle to be gunshot residue. Matt Jablow, spokesman for the city Police Department, said the city lab will revisit its policies after the ASTM has completed its review of the gunshot residue standard. ASTM’s current policy includes the two-element particle as gunshot residue. Frederic Whitehurst, a former FBI crime lab employee who became a whistle-blower in 1997 when he questioned the lab’s evidence handling, said the science behind gunshot residue analysis is basically sound. It’s the unavoidable contamination, he said, that has been a pervasive problem. A.J. Schwoeble, director of forensic science at Pennsylvania-based RJ Lee Group, which services 500 law enforcement agencies and crime labs, said contamination concerns can be overcome. Police departments and crime labs simply must take precautions, he said, such as wearing gloves at the crime scene, storing samples in sealed vials and frequently testing the lab. Three years ago, the FBI opened a $130 million, 500,000-square- foot laboratory on its campus in Quantico. Officials touted the building’s modern layout of lab rooms and office space separated by corridors and independent venting systems as a way to ensure a sterile environment for conducting scientific analysis. But the contamination study shows particles of gunshot residue scattered throughout parts of the lab. “Of course they can’t keep the gunshot residue out – there are firing ranges all over the place out there,” Whitehurst said. Samples collected over a five-day period in late June and early July from surfaces such as desks, door handles and railings revealed the presence of 93 gunshot residue particles and more than 100 additional particles consistent with the residue. On June 30 – the day with the highest levels of contamination – a dozen particles were found on a conference table, 58 were found on a “desk/case file” and 16 were found on railings and door handles, according to the report. The report offers no conclusion of the findings or suggestions about decontamination. Todd, the FBI lab spokeswoman, dismissed the study as “unofficial and limited.” Some defense attorneys say they plan to seize upon the FBI’s abandonment of gunshot residue analysis as a way to unravel pending criminal cases and overturn convictions. Matt Hennessy, a Houston lawyer involved in a high-profile murder case with gunshot residue evidence analyzed by the FBI, said he would be “shocked” if an FBI agent took the stand to testify about gunshot residue. Hennessy represents David Temple, a high school football coach accused of executing his pregnant wife with a shotgun in 1999. He said a gag order prevents him from talking specifically about the Temple case, which has been delayed for months because the FBI’s gunshot residue analyst has been on medical leave. “If the FBI isn’t using [gunshot residue] anymore,” Hennessy said, “that tells me they no longer have confidence in it.” Whitehurst, now a North Carolina attorney who runs a nonprofit wrongful-conviction group called the Forensic Justice Project, said he likely will ask the FBI to submit names of defendants convicted in cases that involve gunshot residue. He said he has asked for a similar list with regard to the discredited comparative bullet lead analysis evidence. “The reality of the science we’re dealing with is that it’s very iffy,” Whitehurst said. Gunshot residue evidence, he said, is no exception. “Most of the violent crimes that people are convicted of involve guns. Many people have been convicted on the basis of GSR. That makes this a potential ‘Ohmygosh.’”

For more on forensics topics see Lawreader’s: FORENSIC EXAMINATIONS BY CRIME LABS

Chief Justice draws fire for taking firm stand against double dipping

Sunday, May 28th, 2006

Chief Justice Joseph Lambert urged the governor to take action against the judicial budget bill which would have allowed retired judges to run for office again and draw full retirement benefits and a full judicial salary. Governor Fletcher concurred and used his line item veto powers to veto that provision of the budget bill. This raises an issue for possible litigation as to whether or not a Governor can use the budget bill to effect a change in the law.  The Governor also vetoed portions of a bill that created new judgeships so that he could appoint the new judges instead of having them run for election this November.

Critics suggest that he did this to benefit his wife who is opposed by a retired judge who is running for her office.  Retired Chief Justice Palmore raises eyebrow at the C.J.’s actions.  Nevertheless, Lambert is Chief Justice, and not many can present a cogent argument in favor of double dipping.  Should he neglect his administrative duties as C.J. just because of his party registration or the fact his wife might (or might not) benefit from his stand.
The following article ran in the Louisville Courier Journal on May 28, 2006.
Top judge urged Fletcher to speed up law’s start
Lambert: It wasn’t to aid wife in election

By Andrew Wolfson  Kentucky Chief Justice Joseph Lambert urged Gov. Ernie Fletcher to speed up the start of a law that could penalize a campaign opponent of Lambert’s wife, a family court judge seeking re-election.

In a letter to Fletcher last month, Lambert said the measure, which prohibits retired judges who return to the bench from collecting both their pay and their pension, needed to take effect this year.

When the General Assembly passed the “anti-double dipping” provision as part of the judicial budget this year, it delayed its effective date so it wouldn’t apply to three retired judges running in November.

But at the chief justice’s request, Fletcher used his line-item veto authority to strike the language delaying the start of the law.

As a result, retired judges running for office this year — including Debra Lambert’s opponent, former District Judge Walter Maguire — would, if elected, have their salary cut so their combined paycheck and pension don’t exceed the salary for the position.

In Maguire’s case, when his pension is deducted from the $121,344 family court judgeship, he would be working for a salary of about $30,000, he said.

Maguire, who retired in June 2005 after 23 years on the district bench, said he still intends to run. But he contends the chief justice had “misused the power of his position for the obvious purpose of discouraging somebody from running against his wife.”

Debra Lambert is family court judge for Rockcastle, Pulaski and Lincoln counties. She did not return phone calls seeking comment.

Chief Justice Lambert said in an interview that his wife’s situation “did not influence my position.” As top administrator for the courts, he said, he had a duty to address the issue and “absolutely” shouldn’t have recused himself.

But Maguire alleged that the chief justice’s interest in the issue is personal — as illustrated by an incident at a Christmas party at U.S. Rep. Hal Rogers’ house in December, when Maguire said Lambert challenged him to publicly pledge not to accept both his salary and pension if elected.

Maguire said he declined. Lambert said in an interview that he remembers saying only, “Walter, I see you are going to be a double dipper, aren’t you?”

In the interview, Lambert said it might be argued that his April 18 letter to Fletcher — and the change in the law’s timing — actually could hurt his wife because it deprives her of an issue to use against her opponent.

Use of veto
Several experts on state constitutional law said Fletcher’s use of the line-item veto to change the effective date of a law was highly unusual. Such vetoes are usually used to strike down specific spending items, said Mark Guilfoyle, who served as general counsel to Brereton Jones when he was governor.

Lexington lawyer Scott White, who researched the issue as assistant deputy attorney general for a 2003 opinion, said Fletcher acted improperly. “You can’t amend the law by fiddling with a budget bill,” he said. “You can only veto the money.”

Fletcher’s general counsel, Jim Deckard, who until recently was Lambert’s top lawyer, defended the veto, saying it was permitted because it was part of a spending bill.

The state Constitution gives the governor power to “disapprove any part or parts of appropriation bills embracing distinct items.”

Pat Abell, who was general counsel to Gov. Wallace Wilkinson, said the veto was “unusual” but probably within the governor’s powers.

But retired Chief Justice John Palmore said in an interview that he believes “this is a bunch of Republicans working together behind the curtains, and that is too bad.” Both Lambert and the governor are Republicans.

“I have a strong position that the judiciary should keep its hands out of the governor’s business, and the governor should keep his hands out of the judiciary’s,” Palmore said.

Governor’s explanation
Fletcher said in his April 24 veto that he was moving up the effective date “to protect against the possibility that judges who are unopposed on the November 2006 ballot could retire prior to the commencement of their new term, which would allow receipt of both salary and retirement benefits.”

But Donna Early, executive director of the state Judicial Retirement Board, said that would be impossible because the board voted several years ago to require a “good faith separation of service” before a retiring judge receives a pension. She said the federal government has defined that as one year.

Lambert, who is chairman of the retirement board, questioned whether the rule would be enforceable without legislation backing it up. “There certainly would be the potential for litigation,” he said.

In his letter to Fletcher, Lambert cited fears of judges taking “a nice long vacation,” then returning to the bench to double dip. He didn’t mention the board’s rule on the matter.

The chief justice also cited questions of fairness, noting that in 1999 he adopted a policy barring all other employees of the judicial branch from retiring and then returning and collecting pension and salary. He said that has created a “double standard” and is unfair to non-elected employees.

Besides Maguire, the other retired judges seeking election this fall are Lewis Paisley of Lexington, who is running for the Court of Appeals, where he previously sat, and David Knox, who left the Court of Appeals in 1999 and is now running for circuit judge of Bourbon, Woodford and Scott counties. A fourth retired judge, Emby McKeehan of Williamsburg, withdrew from his race.

Candidates’ reactions
Knox said in an interview earlier this year that he supported the anti-double-dipping law because of public perception that it is improper. “I would feel uncomfortable taking both,” he said, noting that without the law, some judges could earn more than $200,000 annually.

But Paisley said the measure would discourage experienced judges from coming out of retirement; he said he has not yet decided if he still will run.

Maguire said he earned his retirement pay — “It wasn’t a gift” — and voters should have been allowed to decide whether they wanted to elect him if he was going to receive full pay and his pension.

The original bill to prohibit judicial double dipping was sponsored by Rep. Gross Lindsay, D-Henderson, chairman of the House Judiciary Committee, who acknowledged during the session that he had talked briefly with Chief Justice Lambert about it. It was added to the judicial budget just before the General Assembly adjourned.

Stan Chesley the Litigator Champion for little guy

Sunday, May 28th, 2006

In an instant, Stan Chesley’s face flushes red, his tone turns angry.

“Pardon me, sir,” Chesley barks over the phone, standing in his 15th-floor office, downtown, overlooking the riverfront.

“Do you know who I am? Go to my Web site. Hello, sir?”

The conversation ends abruptly, as the man, Brian in Tucson – who obviously doesn’t know who Stan Chesley is – hangs up.

Brian may regret that.

At 70, Chesley is still one of the most respected, if not feared, lawyers in America, a bulldog in a fine Brioni suit. He has won more than $350 billion for clients and untold millions in fees for himself.

The fame began 29 years ago today, when a horrific fire killed 165 people at the Beverly Hills Supper Club in Southgate, Ky. Then a relatively unknown personal-injury lawyer, Chesley filed suits on behalf of fire victims and their families against the club owners, a utility company and manufacturers of aluminum wiring, carpets and other products.

It was a novel approach for disaster litigation: Merging almost 300 cases into one class-action suit. But it worked. Chesley and other lawyers shared $50 million in litigation and settlements with clients.

Today, Chesley is still making news using the Beverly Hills formula. Early this year, he won $85 million for nearly 400 sexual-abuse victims from the Roman Catholic Diocese of Covington.

After 46 years in practice, Chesley still wins much more frequently than he loses. His success and aggressive style have earned him many friends, and more than a few enemies.

“When someone asks me if I’m related to Stan Chesley,” quips his son, Rick, 45, a lawyer in Chicago, “I say it depends. What was your experience with him?”

Chesley is married to U.S. District Court Judge Susan Dlott (his second wife) and lives in a $12 million Indian Hill home. He is a philanthropist, connoisseur of cars, world traveler and doting grandfather.

He defies easy definition, though, representing Hamilton County in its antitrust case against the Bengals (since dismissed), and also suing the county on behalf of families who say they suffered because the morgue allowed photos to be taken of their relatives’ bodies.

Chesley is a liberal Democrat who hosted three fundraisers for former President Clinton, yet stunned many by filing a suit on behalf of Republican 2nd District Congresswoman Jean Schmidt against her opponent in the May primary.

“He likes the notoriety,” says close friend and client Jerry Carroll, owner of Kentucky Speedway.

Chesley has filed a $400 million antitrust case on behalf of the Speedway against NASCAR.

“People who say they don’t like the notoriety are phonies,” Carroll says. “Stan Chesley is no phony.”

Much of what goes on in Chesley’s head – under that carefully coiffed white hair – is a mystery, but one thing’s certain: He is not ready to slow down. And he still claims to be the champion of the underdog – the reason for that fierce over-the-phone argument with Brian in Tucson.

Chesley explains how Brian represents a collection agency harassing the father of a man who works on his cars. They claim the father owes $3,600. Chesley doesn’t believe it. He fired off a letter demanding the agency cease and desist.

“I’ll always be a little guy at heart,” Chesley says, while staring at the gold-leaf ceiling in his office, appointed with antique furniture.

Brian in Tucson hasn’t been heard from since.


Even though his wealth contradicts it, Chesley’s underdog credentials are impeccable. The son of Jewish Russian immigrants, he grew up in a rented apartment in Avondale. His father, Frank, who died in a traffic accident in 1977, owned a typewriter-repair shop in Clifton.

Undistinguished academically, Chesley worked his way through undergraduate and law school at the University of Cincinnati by selling shoes at Shillito’s department store, downtown. He loved the job, and tells how he once leveraged a 1 percent increase in commissions – from 7 percent to 8 percent – for the sales staff.

It was Chesley’s first victory at the negotiation table.

“It felt good,” he says.

Chesley’s humble beginnings have no doubt driven him. His ex-wife, Suellen Chesley, says her parents opposed their marriage because they didn’t think he would make enough money.

There is another chip on Chesley’s shoulder: He considers himself not only an underdog, but an outsider.

“This is a tough town,” he says. “Very conservative. And I’m not part of that.”

Although he says it’s never worth the time or effort to “dedicate an enemy,” Chesley often doesn’t hesitate to antagonize others. Even friends.

An example is the zoning fight over the former Crest Hills Country Club in Amberley Village. Two years ago, the village denied a rezoning request to allow residential development on the property. The club owner sued the village, asking a judge to grant the request and make the village pay nearly $8 million in damages. Chesley – who lived in Amberley more than 30 years – agreed to defend the village at no charge.

So on this Tuesday morning, Chesley sits at the defense table in Judge Melba Moore’s Hamilton County courtroom, thrashing about in his squeaky wooden chair, looking impatient and uncomfortable, glancing back at the clock on the wall.

His wife says he has an attention span of about “two minutes.” Yet he is able to juggle as many as “20 different” things in his head.

In the rear of the courtroom, a klatch of spectators listens intently to the testimony. They support the club’s rezoning request, and they despise Chesley, their former neighbor and friend, for representing the other side.

“A lot of people in the Jewish community, a lot of people in Amberley, really don’t like me for doing this,” Chesley says later.

He entered the fray, he says, because the club owners tacked on the request for $8 million and because he considers Amberley Village the underdog.

But some on the club’s side claim Chesley’s motives are vindictive, that he jumped into the case only because he was once denied membership into the country club. Chesley confirms he was denied membership, but says he “doesn’t have time to be vindictive.”

Judge Moore is expected to rule in July.


Chesley was steeled for such criticism while working on the Beverly Hills suit, when he was called a “glorified ambulance chaser.” But what still bothers him is that some think he was just lucky with that career-making case.

“It was preparation,” Chesley says. “You don’t win cases, you don’t win settlements, with smoke and mirrors.”

Chesley jumps up in his office to fetch a chunk of charred timber, a board recovered from the Beverly Hills ruins, where it rests like a battle relic in a glass case. Chesley used it as evidence in his case against the aluminum-wiring industry, which eventually settled for more than $15 million.

“I keep (the board) there to remind me that you have to work hard to win these things,” he says.

Cincinnati lawyer Bruce Allman remembers how hard Chesley worked in the Beverly Hills case. Allman represented six defendants who eventually settled out of court.

“Stanley is very smart,” he says. “He knows how to manipulate the system, and he knows how to make a defendant’s life miserable, economically and figuratively.”

Bob Gettys recalls another Chesley tactic from the Beverly Hills case. Gettys, a lawyer in Covington, represented a Cincinnati air-conditioning firm, Rash-Saville-Crawford – the only defendant in the fire suit that refused to settle and eventually won in court.

Chesley used to come to settlement meetings, Gettys says, and wave a book with gruesome photos of people who died in the fire.

Gettys persuaded his client not to settle because he thought Chesley’s case was weak. Now, he thinks other defendants could have won as well. But they preferred settling for $1 million or $2 million, he says, instead of risking the loss of many more millions in court to Chesley.

Many say Chesley is a better out-of-court negotiator than litigator. But he will point out that he must spend hours of research and reading depositions before proposing a settlement.


Skilled attorney that he is, Chesley is ready to defend how much money he makes, such as his $20 million share of the $200 million award in Kentucky’s Fen-Phen settlement, in which 400 people claim the diet drug caused serious health problems.

“The bottom line is,” he argues, as if standing before a jury, “when somebody has talent, nobody criticizes the paycheck. It’s fascinating what I get attacked about is my skill and that I get remuneration for it.”

Insurance companies and corporations may not like it, but large fees, he says, enable him to take on risky, important cases that may require years of work and net few fees. In the 1984 Bhopal, India, gas-leak case, for instance, Chesley lost as much as $2 million because he was cut out of the settlement.

“No one wants to know what it costs to run this shop,” Chesley says. “My God, we have two floors, 90 associates.”

In most settlements, he says, the court sets the amount shared by attorneys, which can number in the dozens.

When it comes to his money, Chesley has been generous, donating to the Jewish Community Center, the arts and other causes. He also gives spontaneously, picking up the dinner tab at a restaurant for a dozen high schoolers celebrating prom night, or standing in a toy store parking lot on Christmas Eve handing money to needy parents.

But Chesley is known mostly for giving – and persuading others to give – to Democratic candidates. He is amused when others are shocked that he sometimes lends a hand to Republicans, as he did by filing that federal suit for Congresswoman Schmidt before the May primary. Chesley eventually withdrew the suit, which claimed Schmidt’s opponent, Bob McEwen, was not an Ohio resident.

Chesley says he has always supported Republicans such as Rob Portman, Bush’s director of the Office of Management and Budget, Hamilton County Prosecutor Joe Deters and U.S. Sen. Mike DeWine.

“Stan knows to be with a winner,” Carroll says.

Other than his work and dabbling in power politics, Chesley claims few interests except for collecting expensive cars. It’s rumored he owns a fleet, but he admits only to having “more than two” cars.

His six grandchildren, ages 9-16, are a serious avocation. His daughter, Lauren Cohen, 43, of Indian Hill, has three girls and a boy; son Rick in Chicago has two boys. Photos of the children outnumber chummy shots of Chesley with the Clintons and other dignitaries in his law office.

Chesley often cheers his grandchildren on at soccer games and never cross-examines referees, Lauren says. In June, Chesley is taking all of his grandchildren, who call him “Baba” and Papa,” to Israel for a week.

He admits his involvement with his grandchildren is an attempt to make up for time lost with his two children when he was busy building his career.

“I never carried pictures of my children,” Chesley says. “Now, I never leave the house without pictures of my grandchildren.”

When Lauren calls on a Saturday morning, telling him Amanda, her 16-year-old, just passed her driving test, he is ecstatic, promising to send flowers and go for a ride with her that afternoon.

That morning, Chesley is standing shirtless in the basement of his for-sale, $2 million Amberley Village home, waiting to get his hair cut.

Last year, Nick Picariello, his barber for 40 years, had to close his Corryville shop due to construction. So Chesley suggested Picariello move his barber chair – a gift from Chesley – to his empty basement. There, the Italian immigrant barber meets Chesley every Saturday for his trim and shave.

Perhaps it’s no surprise Chesley can talk with a straight razor to his neck, with a hot towel wrapped around his face and scissors up his nose. But this odd ritual appears to be more about friendship and loyalty than grooming. Picariello was one of a handful invited to celebrate Chesley’s 70th birthday at his home in March. Chesley kisses the barber on the neck, Sopranos-style, before leaving for his weekly stroll around Hyde Park Square.


Those who know him laugh at the suggestion that Chesley is mellowing, though many, including his wife, believe he is enjoying life more.

He is at least open to change. When they married in 1991, Susan Dlott says, her husband looked at her dogs “as if they were aliens.” Now, he adores the two King Charles Spaniels. Crumpet sleeps on his side of the bed; Dickens sleeps on her side.

“In the beginning, he didn’t negotiate with me at all,” Dlott says. “It was his way or no way. But he has softened. Now we make joint decisions.”

The couple met in 1981 during a Christmas luncheon at a judge’s home. Chesley separated from Suellen in 1979 and was divorced in 1981. President Clinton appointed Dlott U.S. District Court Judge in 1995.

The couple relax weekends at their 27,000-square-foot home on Camargo Road, once reported to be the most expensive house sold in Greater Cincinnati. They often go out to dine, including fried chicken at one of their favorites, the homey Schoolhouse Restaurant in Camp Dennison. On some Monday nights, they share chicken leftovers at home.

Since they’ve married, Dlott says, she’s grown to understand what drives her husband, and it’s more than his humble beginnings and his need to fight for the “little guy.”

“He never dreamt he would be this successful,” she says. “He’s very superstitious, and every time something good happens, he’s waiting for something bad.”

He will never retire, she says. When the family went to Florida for a week in March to celebrate his birthday, Chesley was antsy after two days, ready to return to work.

“I’m a better lawyer than I was 10 years ago,” he says.

When asked about his legacy, he bares another fear – that the Beverly Hills case and other victories will someday be forgotten.

“I’ve known a lot of great lawyers,” he says quietly in his office, sitting still for a moment. “And there’s nothing sadder than when they retire, because people completely forget about them.”

Chesley won’t be forgotten if he has his way. And for nearly 30 years, he pretty much has.
Chesley’s high-profile cases


Stan Chesley has helped settle dozens of civil lawsuits over the past 30 years. Here are some of his most notable cases :

Beverly Hills Supper Club fire May 28, 1977, fire at Southgate, Ky., club kills 165 and injures 116. Club owners, utility company and product manufacturers agree to pay $50 million to the families, whom Chesley represents. His reported fee: $1.8 million.

Dow Corning breast implants Chesley represents women who claimed that silicone leaking from implants caused a skin condition, rheumatoid arthritis and other health problems. Drug company agrees to pay women more than $4 billion in early 1990s. Chesley’s reported fee: Unavailable.

Tobacco litigation Millions of people around the country file suit against tobacco companies, claiming their smoking addiction caused death and other health problems. Tobacco companies agree to pay them more than $360 billion in 2002 over 25 years. Chesley’s reported fee for representing the smokers: $1.25 billion, shared with other attorneys.
 Meet Stan Chesley


Born: March 26, 1936
Residence: Indian Hill
Occupation: Attorney and president, Waite, Schneider, Bayless & Chesley (joined firm in 1960)
Family: Wife, Susan Dlott (U.S. District Court judge); son, Rick, 45, and daughter, Lauren Cohen, 43; six grandchildren
Favorite television shows: “Boston Legal” and “The Sopranos”
Favorite law movie: “Erin Brockovich”
Quotes: “You never get more than you ask for.” “If you burn a candle at both ends, you get more light.” “Never dedicate an enemy; they may end up being a dear friend.”


 Did you know …. ?


$11.9 million: Price Chesley and his wife, Susan Dlott, paid for their Indian Hill home in 2004
$2 million: Listed price for Chesley’s former home in Amberley Village
$67,500: Contributions made by Chesley to Democratic candidates and organizations, 2003-2006
$19,000: Contributions made by Chesley to Republican candidates and organizations. 2003-2006
$2,100: Largest contribution made to an individual candidate during same period (to Republican Pat DeWine, who lost in the 2nd Congressional District Republican primary in 2005)
1995: Year former President Clinton appointed him to U.S. Holocaust Museum Council
20-plus: Sports cars Chesley reportedly owns
6: Years he served as chairman of the University of Cincinnati Board of Trustees (1988-92) 3: Fundraisers he hosted for former President Clinton
Other high-profile cases of Stan Chesley


Here’s a sampling of notable civil lawsuits that Stan Chesley has helped settle over the past 30 years:
MGM Grand Hotel fire: Las Vegas hotel fire in 1980 kills 85 and injures hundreds. Settlement is about $200 million for Chesley’s clients, the victims and families. His reported fee: More than $2.3 million.
Agent Orange: In 1983, Vietnam War veterans sue, claiming this chemical defoliant used by the U.S. military caused cancer. Settlement is about $200 million for the vets. Chesley’s reported fee for representing them: $800,000.
Bhopal: Poison-gas leak at Union Carbide plant in Bhopal, India, in 1984 kills more than 3,300 and injures thousands of others. Chesley’s team negotiates $350 million settlement for the victims, but it’s set aside. Chesley drops out of case before $470 million settlement is reached. He reportedly lost as much as $2 million.
Arrow Air jet crash: Chartered jet crash in 1985 kills 248 Fort Campbell, Ky., soldiers in Gander, Newfoundland. Settlement is about $100 million for victims’ families. Chesley’s reported fee for representing them: More than $1 million.
Bjork Shiley artificial heart valve: Users claim defective heart valves made by Pfizer Inc. caused more than 310 deaths. Settlement in 1992 brings more than $200 million for the users. Chesley’s reported fee for representing them: Unavailable.
Fernald Nuclear Weapons Plant: Chesley represents workers and residents near this Hamilton County uranium-processing plant who claim radioactive exposure caused health problems. In 1994, attorneys reach settlement of nearly $100 million for Chesley’s clients. His reported fee: $15.6 million, shared with three other attorneys.
Pan Am Flight 103 Lockerbie crash: In a 1988 terrorist jetliner bombing over Scotland, 270 people die. Government of Libya agrees in 2003 to $2.7 billion settlement for victims’ families, whom Chesley represented. His reported fee: Unavailable.
Fen-Phen: Chesley represents Kentuckians who claim diet drug caused heart-valve damage and other health problems. In 2001, the drug company agrees to settle for $200 million. Chesley’s reported fee: $20 million
Sex abuse – Roman Catholic Diocese of Covington: More than 300 plaintiffs file class-action suit in 2003 against Roman Catholic Diocese of Covington. Church settles for $85 million early this year. Chesley’s reported fee for representing the plaintiffs: $18.7 million, shared with other attorneys.
Enquirer research by Sally Besten



Court of Appeals decisions include 8 published cases this week

Friday, May 26th, 2006

Important cases handed down by the Ky court of appeals May 26, 2006.  LawReader members can view synopsis and full text. To sign up go to:   Membership is only $34.95 a month.

Case number:

1 2
3TO BE PUBLISHED: Paducah school shooter granted competence hearing: …minority and mental incompetence, are common grounds for tolling limitations periods, and RCr 11.42 itself gives no indication that its limitations period is meant to be an exception
4 TO BE PUBLISHED: An inquiry into potential securities fraud is within the administrative agency director’s authority as is a subpoena to further that inquiry.
5 alcoholism is not a mental illness for purposes of negating legal intent to drive while intoxicated.
6 TO BE PUBLISHED: University of Ky. Medical Center is a state agency and therefore enjoys immunity for medical malpractice claims

7 8 Feldpausch was entitled to exercise “reasonable visitation rights? with the children unless the court specifically determined that visitation would seriously endanger them. Absent such a finding, the trial court was prohibited from suspending her visitation with the children.
9 ordinances granting planning map amendment were not arbitrary.
10 jury was within the evidence to deny future medical benefits
11 TO BE PUBLISHED: KRS 610.010(13) limits juvenile court jurisdiction to minors. Neither the court’s contempt power nor the limitations period for an action on a judgment implies an exception to that rule for restitution obligors.
12 TO BE PUBLISHED: the difference in treatment between a “used motor vehicle? and a “new motor vehicle,? as found in KRS 138.450(12)(a) and (f), rationally furthers the goal of stimulating the used car industry and is not unconstitutional.
13TO BE PUBLISHED: Highway department owning land in urban areas has duty to maintain natural conditions (old trees) that might cause damage to neighbors…different rule applies in rural areas

14 TO BE PUBLISHED: res judicata was no longer binding, summary judgment issued in error

15..(adverse)…possession is generally deemed adverse when such possession is maintained to a fence line because the fence is recognized as the proper boundary line

16 17 once Chambers broke and ran Officer Curtsinger had a reasonable
suspicion to pursue and to arrest Chambers for fleeing and evading
18 failure to inform a defendant of parole eligibility does not render a guilty plea involuntary under the rule of Boykin v. Alabama

19 Bradley “failed to demonstrate that either Mayor Fannin or the City of Prestonsburg retaliated against her for exercising a right conferred by well-established legislative enactment or for refusing to violate a public policy as set out in the Constitution or a statute.?
20 the officers had articulated a reasonable basis for the stop
21 it was error to appeal from an interlocutory decree
22 Because the trial court failed to make specific findings on the crucial time-lapse issue, we must vacate and remand.
23 KRS 405.021 must be construed to impose a burden on the grandparent seeking visitation of overcoming that presumption by proving clearly and convincingly that visitation is in the child’s best interest.
24 TO BE PUBLISHED:  Kentucky law forbids an appeal of the denial of a petition to involuntarily terminate parental rights.

Paducah school shooter granted competence hearing

Friday, May 26th, 2006

The Kentucky Court of appeals has granted the motion of Michael Carneal, the convicted Paducah school shooter, for a hearing to determine if he was competent at the time he pleaded guilty to shooting and killing three students in Heath High School.

Carneal says he was hearing voices at the time of his plea, which told him to plead guilty and to not talk about the shooting of his fellow classmates.

The court ruled that his motion was timely filed and sufficient grounds were presented to justify a competence hearing request and that the trial court should review the possibility of a retrospective competence hearing.
The court held:  “…minority and mental incompetence, are common grounds for tolling limitations periods, and RCr 11.42 itself gives no indication that its limitations period is meant to be an exception.?
The court returned the case to the trial court to review the ability to conduct a retrospective competence review:
“If a retrospective competency determination is not feasible, or if it is determined at the hearing that Carneal was not competent to enter his guilty plea, then he shall be permitted to withdraw the plea and, if  competent to do so, either plead again, or proceed to trial.” 

Sir Edmund Hillary Rips Climbers Who Left Dying Man

Thursday, May 25th, 2006

WELLINGTON, New Zealand (May 25) – Mount Everest pioneer Sir Edmund Hillary said Wednesday he was shocked that dozens of climbers left a British mountaineer to die during their own attempts on the world’s tallest peak.
David Sharp, 34, died apparently of oxygen deficiency while descending from the summit during a solo climb last week.
More than 40 climbers are thought to have seen him as he lay dying, and almost all continued to the summit without offering assistance.
“Human life is far more important than just getting to the top of a mountain,” Hillary was quoted as saying in an interview with New Zealand Press Association.
New Zealander Mark Inglis, who became the first double amputee to reach the mountain’s summit on prosthetic legs, told Television New Zealand that his party stopped during its May 15 summit push and found Sharp close to death.
A member of the party tried to give Sharp oxygen, and sent out a radio distress call before continuing to the summit, he said.
  More than 40 climbers are thought to have seen him as he lay dying, and almost all continued to the summit without offering assistance.                                                                         
Several parties reported seeing Sharp in varying states of health and working on his oxygen equipment on the day of his death.
Inglis, who was due to arrive back in New Zealand on Thursday, said Sharp had no oxygen when he was found. He said there was virtually no hope that Sharp could have been carried to safety from his position about 1,000 feet short of the 29,035-foot summit, inside the low-oxygen “death zone” of the mountain straddling the Nepal-China border.
His own party was able to render only limited assistance and had to put the safety of its own members first, Inglis said Wednesday.
“I walked past David but only because there were far more experienced and effective people than myself to help him,” Inglis said. “It was a phenomenally extreme environment; it was an incredibly cold day.”
The temperature was minus 100 at 7 a.m. on the summit, he said.
Hillary and Sherpa Tenzing Norgay in 1953 became the first mountaineers to reach Everest’s summit. Hillary said in an interview published Wednesday in a New Zealand newspaper that some climbers today did not care about the welfare of others.
“There have been a number of occasions when people have been neglected and left to die and I don’t regard this as a correct philosophy,” he told the Otago Daily Times.
“I think the whole attitude toward climbing Mount Everest has become rather horrifying. The people just want to get to the top,” he told the newspaper.
Hillary told New Zealand Press Association he would have abandoned his own pioneering climb to save another’s life.
“It was wrong if there was a man suffering altitude problems and was huddled under a rock, just to lift your hat, say ‘good morning’ and pass on by,” he said.
He said that his expedition, “would never for a moment have left one of the members or a group of members just lie there and die while they plugged on towards the summit.”
Three climbers, from Brazil, Russia and France, died descending Everest in separate expeditions in the past week, a Chinese official said Tuesday.
More than 1,500 climbers have reached the summit of Mount Everest in the last 53 years and some 190 have died trying.
05-25-06 04:12 EDT
Reprinted from AP
Lawreader comment: Have we become so focused on our immediate objective that we have lost sight of life’s mission?

Damn the Widows and Orphans Courts unlimited Executive Pardon ruling makes hard law

Wednesday, May 24th, 2006

An editorial by Stan Billingsley, Senior Editor of

Many years ago in a UK law school class on contract law, Professor Flickinger in discussing a case from the textbook called on me to opine as to the successful party on a particular wrongful death claim.  Being full of first year student ignorance, and not being clear on the point of law being discussed, I answered that I felt that the widow involved in the case would win on that point as there would be sympathy for her.
     Professor Flickinger turned cherry read, closed the case book, raised it high over his head and slammed it into the floor as hard as he could and shouted:
           “Damn the widows and orphans! They make bad law!?
    Some thirty years later I still remember the point he so graphically made to everyone in the class.  (I have often wondered if he had not masterfully set me up for that demonstration.)
   Over my years of practice and many years on the bench, I have seen many occasions where I was guided by his teaching.  Once while advising the local Planning and Zoning Board, I advised against allowing a mobile home to be placed in an area of the city where they were forbidden, but was overridden by the board who had taken pity on the family they had allowed to be excepted from the zoning laws due to the fact there home had recently been burned down.
 The Board paid dearly for their surrender to their hearts and thereafter spent three years and a great deal of litigation to get the mobile home removed.  They couldn’t believe the number of other cases that came before them and asked for the same exemption.
      Professor Flickinger was correct.  You can’t make an exception just to solve a special case or to make an exception for a sympathetic figure or cause.  This legal maxim has also been expressed as “Hard cases make hard law.?
     Such exceptions set a precedent, and may be very hard to explain in the future and may be even harder to live with as others attempt to benefit from the precedent you have created.  By giving into a hard case, you may cause a greater harm in the long run.
     Professor Flickinger’s example came to mind this week while I read the Kentucky Supreme Court’s decision in Fletcher v. Stumbo – Graham, where they upheld the application of Governor Fletcher’s pardon powers, and limited the power of the Grand Jury to investigate, report and indict wrongdoers.
   Justice Cooper wrote a dissent to that decision that may be one of the best reasoned dissents ever written in the history of Kentucky jurisprudence.  Justice Scott added his dissent which also was well reasoned.  Justice Wintersheimer joined in the dissent.
   One can only wonder what harm was done to Grand Jury investigations in the future, and the resulting expansion of the Executive’s pardon powers. This issue is not about Republicans or Democrats, neither have cornered the market on abuse of power over the years, and can not reasonably be expected to be free of abuses of the law in the future. But this precedent will linger long after we all are gone. It is hard law indeed.
    The Fletcher decision permits the unrestrained power of future governors to call for an annual barbecue at the mansion, and issue blanket pardons for all who do their bidding.
   There are no checks or balances left in place to prevent an outright criminal conspiracy that could even allow the assassination of whistleblowers or political opponents.
The majority decision attempts to even hide the names of the suspects from public view. Even Mafia bosses will be envious of such unrestrained freedom from investigation and criminal prosecution.
   Government operates largely on trust. Trust that any elected official will conform to a sense of  respect for the law and legal traditions that protect the public interest. We have the right to expect that if a law is broken by a public official, that it will be investigated and if probable cause is found to exist that such an offense did indeed occur, that the official will be tried before a jury.  We all pay lip service to the idea that all men are equal before the law.
    The majority of states require that a person be accused, tried and convicted before the governor of the particular state can grant executive clemency.  They must admit to their criminal conduct before the pardon applies.  With the Kentucky ruling, the governor can issue blanket pardons without their ever being a criminal charge investigated, there need be no admission of guilt by the pardonee, and to add insult to injury, the decision handcuffs all grand juries from issuing indictments after the pardon has been issued.  The governor in Kentucky doesn’t even have to specify the guilty party he is pardoning, and need not identify the facts of the crime pardoned.
If those in power are exempt from the application of the criminal laws, and even public disclosure of their acts are restricted, then we have made some public officials creatures above the law….and that is a place where tyrants reside.
    When that public trust and sense of fair play is broken, then perhaps it is time to consider the right of future governors to grant unlimited blanket pardons that shield him and his supporters from any investigation or prosecution.
      If this governor can conceive of such a plan, and he clearly has, then we can surely expect future governors to consider a similar strategy when they get their backs against the wall of some future scandal.
  While it is possible a future court could overrule the Fletcher v. Stumbo decision, the only sure remedy for this problem is for the legislature to draft a constitutional amendment for consideration by the voters, which would limit the granting of non-reviewable pardons when they benefit the person granting the pardon and insulates him against prosecution and investigation. There is a great deal of precedent in other states for limitations on a governor’s pardon powers. These precedents are listed in Justice Cooper’s dissent.
   The polls show that members of both political parties are troubled by the actions of this governor with regard to his use of the pardon power.  This is to important to be a partisan issue. This is a Kentucky issue.  The solution calls for a Kentucky solution. 
To read the full text of this decision including dissents go to: 2005-SC-001009-MR.pdf

Women work to gain local leadership positions

Wednesday, May 24th, 2006

Women are rapidly advancing in leadership positions in Kentucky. 

For years, people may have called her mom, sister or my wife, but now, the public calls her mayor, councilwoman, or judge.

Ann Deatherage

Carrollton Mayor Ann Deatherage was the first woman to become the mayor of Carrollton in the citys 168-year history. She is also one of a handful of female mayors in north-central Kentucky.

Deatherage started her political career as a councilwoman while teaching at Carroll County Schools. She was appointed in 1985 by the mayor to serve an unexpired term and was elected as a council member in the next year.

After serving three terms as a council member, Deatherage ran in 1998 for mayor. She ran unopposed that year and went from door-to-door to talk with people in order to clinch her position.

After she was elected to her first term, it took Deatherage a while to become acquainted as the leader of the city.

“I spent eight hours a day for months trying to just get accustomed to phone calls,? Deatherage said. “It was a fun year. They have all been fun.?

In her first role as mayor, she received mail from Nickelodeon, a children’s television network, to schedule a time for the station’s representatives to visit Carrollton because more than 600 Carrollton children called the station to have the station visit.

Later, she spearheaded the effort for the city to purchase and create a new office space for emergency services and the city offices.

“We’ve got to do something about this,? Deatherage told council members at the time.

Deatherage said it took a year for the council to approve the construction of a new building, which was finished in March 2000.

Last year, Deatherage was able to have the regional wastewater plant move forward through the efforts of 25 government officials and now, eight counties will connect to the new facility.

Throughout her two terms as mayor, Deatherage has attended meetings and training sessions to improve her service. She is also involved in a number of community activities.

“It keeps me involved,? Deatherage said. “I enjoy working with people.?

Because she decided to become mayor, she had to make some personal sacrifices. She said she had to give up birthday parties and other special occasions in order to serve as mayor.

“We always reschedule,? Deatherage said. “I have wonderful support from my children.?

Nancy Jo Grobmyer

Nancy Jo Grobmyer has served on Carrollton City Council for more than 30 years. She became Carrollton’s first female council member in the 1970s when Harry Berge was mayor.

She has been through four mayors, remembers Point Park when it was a “wilderness? and served on the council in increments of four years.

Grobmyer’s first major accomplishment as councilwoman was Point Park. At the time, Point Park was known as “Frogtown,? and was a wilderness area filled with trees, and was very primitive.

“It wasn’t very popular,? Grobmyer said about the council’s idea to turn the area into a park space.

Despite the site’s lack of popularity, the Council approved making it into what is known as Point Park.

Since her first accomplishment, Grobmyer has become involved with a number of clubs and organizations in the community and has received countless awards from local and state leaders.

“I love this city so much,? Grobmyer said. “I enjoy making decisions.?

Elizabeth Chandler Lester

Elizabeth Chandler Lester is taking her first step in trying to become the first female district judge for Carroll, Owen and Grant counties.

Lester has been campaigning for the last few months in order to come closer to realizing her dream. She had to work hard gaining votes this primary, and she will have to work twice as hard to become the overall winner in the general election.

However, Lester said she has loved her campaigning experience.

During her door-to-door campaigning, Lester has met people she would not normally have had time to meet with her regular schedule in her jobs as assistant Carroll County attorney and Carrollton city attorney. She has also had a chance to spend time with her father while campaigning because he is known in the district she wants to serve.

Lester had thought about running for district judge for six years, but she did not know when she should run. Now, she feels its the right time to campaign.

“I really think I could do the best job,? Lester said. “I believe we choose our own destiny. I believe God has a plan for our lives and we have a choice every step.?

She believes that by using common sense, treating people with respect and having the right temperament, she can serve the district. Lester also believes that her experience in district court as an attorney for the last seven years makes her a qualified candidate.

Even though Lester is a female, she does not see her gender making a difference in the race.

“I don’t expect people to vote for me because I am a woman, and I don’t want anyone to vote against me because I am a woman,? Lester said. “I think a woman or man could do a good job equally.?

If Lester is elected, she will have to leave her job as an attorney and only serve as a judge. However, that is a sacrifice she is willing to do to serve her community, she said.

Lester will be running against John Brent Threlkeld in the November election.

Reprinted from Madision, Inc. Couerier

Sara Denhart
Kentucky News Desk
Editors note:
In the May judiical primary a number of women advanced to the November election for the judiciary.  JOy Moore and Michelle Keller were advanced in their races for different divisions of the Court of Appeals.
Mary Noble of Lexington, and Ann O’Mally Shake of Louisville both advanced in their contests for the Ky. Supreme Court.

U.S. Attorney Says Kentuckians Deserve Fair Shake At Government

Tuesday, May 23rd, 2006

ASSOCIATED PRESS – LEXINGTON — As the new U.S. attorney in eastern Kentucky, Amul Thapar will likely oversee high-profile cases against political officials, child molesters, drug rings and employers who circumvent immigration laws.
But his main priority, he says, is to ensure “people feel like they’re getting a fair shake at every level of government, period.?

Editor’s note:  Does this mean that the U.S. Attorney will exercise his discretion to pursue the Fletcher Administration over the alleged merit system violations. Some scholars opine that  Federal Rico and Civil Rights statutes may apply to this situation.

Many of the workers involved in the allegations of political hiring and firing in violation of the Merit System laws are paid with federal funds.

A governor’s pardons would not apply to Federal statutes, if any were violated.

Supreme Court Decision gives police discretion to enter private home without warrant to break up a fight

Monday, May 22nd, 2006

WASHINGTON — The decision gives law enforcement greater discretion to intervene when making snap decisions about threats of violence.
After hearing arguments in the case, several justices seemed openly underwhelmed by the importance of the matter. Justice John Paul Stevens called it “an odd flyspeck of a case.”
At issue is whether the “emergency” circumstances that normally allow officers entry into a home without warrants were present in this incident. The court also took a look at the “subjective motivation” that prompted the officers’ intervention in the physical struggle they witnessed.
Chief Justice John Roberts wrote the opinion, less than a month after arguments were held, an unusually quick turnaround for a criminal case.
“The role of a police officer includes preventing violence and restoring order, not simply rendering first aid to casualties,” wrote Roberts. “An officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.”
The facts of the case are typical of the kinds of incidents police respond to all the time: a 3 a.m. complaint about a noisy party.
Four Brigham City officers arrived at a private home on July 23, 2001, but did not find obvious signs of a party. Instead they heard a loud commotion, with “thumping” and shouts of “stop, stop” and “get off of me.”
Three of the officers went to the back of the house and found two teenagers drinking beer as the commotion continued inside. Through a window they saw four adults attempting to restrain a teenager against a refrigerator. The boy was trying to wrestle free amid obscenities and cries of “calm down.”
Officers saw a punch
As the police came to an open screen door, they saw the teen punch one of the adults in the nose, causing blood. Officers then entered and announced their presence, eventually getting attention of the occupants, who gradually ceased fighting.
Officers claimed they tried to offer aid to the injured adult, but others in the home turned abusive and were arrested and charged with disorderly conduct, intoxication, and contributing to the delinquency of a minor, all misdemeanors.
The Utah Supreme Court eventually agreed with the defense to exclude evidence, ruling there had been no “immediate serious threat” that justified police entering the home without knocking, or without obtaining a warrant. The charges were dismissed.
But Roberts concluded, “We think the officers’ entry here was plainly reasonable under the circumstances. The officers had an objectively reasonable basis for believing both the injured adult might need help and that the violence in the kitchen was just beginning.”
The case now goes back to the state courts, with prosecutors free to press charges against the men, using the evidence gathered by police.
A lawyer for the home occupants told the justices that Utah courts all found that it was an unreasonable search. “If they can make their presence known inside the home, they can make their presence known outside the home,” said Michael Studebaker.
Lower courts are divided
But Roberts thought otherwise. “The officer’s announcement of his presence was at least equivalent to a knock on the door. Indeed, it was probably the only option that had even a chance of rising above the din.”
Courts have been deeply divided around the country over when “emergency aid” allows home entries by police without a warrant.
Stevens, 86, said it was “peculiar” how the lower courts ruled, and the fact his fellow justices even agreed to hear it. “It is hard to imagine the outcome was ever in doubt,” he noted.
The Bush administration supported the city, and has been a strong advocate of greater law enforcement powers in the wake of the 9/11 terrorist attacks. The high court itself has taken a keen interest in search-and-seizure cases since those 2001 incidents.
While generally supporting police, the court last month ruled that officers responding to a domestic disturbance were wrong to search a Georgia man’s home for drugs, even though his estranged wife had consented. The justices concluded when one legal occupant clearly objects to the search, as the man did, police cannot proceed without a warrant.
Reprinted from CNN Monday, May 22, 2006; Posted: 1:16 p.m. EDT (17:16 GMT)

To read full text of this decision on LawReader go to:

 BRIGHAM CITY, UTAH v. STUART ET AL.  Police may enter home to stop fight and to prevent physical injury.

Supreme Court Ruling Could Change Balance Of Power In Patent Infringement Cases

Monday, May 22nd, 2006

In eBay v. MercExchange, the court creates a high barrier by requiring that four conditions be met before issuing a permanent injunction.

The U.S. Supreme Court torpedoed a powerful weapon from patent holders’ arsenals with its unanimous ruling last week that courts shouldn’t automatically impose a permanent injunction against a patent infringer. If that had been the law when Research In Motion was defending its BlackBerry service, it could’ve dramatically changed how that case played out.
Though the high court didn’t side with either litigant, the ruling in the case of eBay v. MercExchange favors eBay, which a jury in 2003 determined infringed on MercExchange’s patent on a fixed-price sales process used over the Web. MercExchange contends, and the jury agreed, that eBay employs the patented innovation in its “Buy It Now” feature. The jury ordered eBay to pay MercExchange $35 million, which could be increased to more than $100 million.
An injunction is powerful because a patent infringer must stop using a technology immediately. Until now, legal precedent has made injunctions nearly automatic in cases where patent infringement was found. In the case against RIM, for example, the big threat was that an injunction would force RIM to quickly halt its BlackBerry service, cutting off its revenue source. That threat made it risky for RIM to hold out hoping for a favorable judgment. RIM ended up paying $612.5 million to settle the case.

 Four Conditions
Courts can impose injunctions if:
 1. The innovator suffered an irreparable injury.
 2. Available remedies such as monetary awards aren’t adequate to compensate for the injury.
 3. Balance of hardships between the infringer and patent holder are considered. If a business can be punished but remain viable through financial penalties, an injunction should be avoided.
 4. Injunction wouldn’t harm public interest.
In the eBay case, a federal district court judge denied MercExchange’s motion for injunction. An appeals court reversed that ruling, saying a century-old precedent required a permanent injunction if a patent is infringed. Last week’s Supreme Court action usurped that precedent and set up a four-factor test for an injunction (see box, below).
If the Supreme Court ruling had been law in March, RIM would have been able to argue that shuttering its business through an injunction would have caused irreparable harm out of balance to any financial penalty, and even that the public interest wouldn’t have been served because the government relies on BlackBerry services for homeland security, and millions of customers use it as part of their businesses.
Such a high barrier should make it rare for an injunction to be imposed for infringing a patent. It will help defendants accused of patent violations because they “are better off just taking their chances of having a jury determine the appropriate amount of damages,” says patent lawyer Tim Meece, senior partner at Banner & Witcoff.
The ruling dismayed the head of a group of inventors who sided with MercExchange. Injunctions are valuable because they force infringers to settle quickly, says Ronald Riley, president of the Professional Inventors Alliance USA. He predicts an increase in litigation because infringers will have little motivation to negotiate an early settlement. “Young, really successful companies like eBay develop quite fat heads, and they think they can do what they want, when they want, with other people’s property,” Riley says. “The injunction is a powerful weapon against companies like that.”
Shift In eBay’s Favor
Some Justices cast a wary eye on patent holders without a product. “An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees,” Justice Anthony Kennedy wrote in a concurring opinion. “For these firms, an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent.”
The Supreme Court decision isn’t an outright victory for eBay, but it’s a setback for MercExchange since the possibility of a permanent injunction is more remote. MercExchange already faced setbacks. In March, the U.S. Patent and Trademark Office issued a preliminary ruling saying it erred when it issued the patent, and that it now deems MercExchange’s invention obvious, a precondition that would have prevented a patent from being issued. The Supreme Court ruling could buy eBay enough time to get the patent invalidated, since it’s less likely to face an injunction that closes down part of its service. And if the patent is eventually invalidated, eBay wouldn’t owe MercExchange a dime.
Reprinted from : By Eric Chabrow   InformationWeek

May 22, 2006 12:00 AM


Keeping judicial campaigns judicious

Sunday, May 21st, 2006

Candidates this year bear a special duty – By Ky. Chief Justice Joseph E. Lambert

Kentucky faces an unprecedented number of judicial elections in 2006. More than 80 contested judicial seats will be on the November general election ballot, and most of the judges chosen will serve eight years. Judges of the district court, circuit court, Court of Appeals and four Supreme Court justices will be selected in these contested elections. These elections will test our commitment to the constitutional principle of judicial non-partisanship.
Recent changes in federal and state law now permit (but do not require) judicial candidates to go further than ever before with disclosure of their views on disputed legal or political issues. In view of these changes, special-interest groups and their fund-raising affiliates are demanding that judicial candidates state their positions on a wide range of issues.
Some candidates may attempt to curry favor with perceived voting blocks by broadly declaring their views on the controversial issues of our time. If this occurs, politicians and special interest groups will succeed in harming our constitutional tradition of fair and impartial courts.
It’s already happened in some states. In a recent Supreme Court election in West Virginia, one special interest group spent $3.6 million to defeat an incumbent justice, and an advertisement in that election falsely implied that he was a child molester. Similar spending and distortions have also occurred recently in judicial elections in Illinois, New Mexico, Mississippi, Michigan and Ohio.
Some voters will insist that they need to know the views of judicial candidates on “hot-button” issues. While this seems reasonable at first glance, when considered more deeply, it is not. Every person who enters a courtroom is entitled to have a judge who is free from political influence or prior commitment. Courts maintain the checks and balances in our democracy, and when judicial candidates make self-serving declarations for or against a particular issue, they undermine our constitutional foundation. Every citizen has a right to demand that courts follow our constitutions and laws and that they not be beholden to special interest groups.
But some voters will ask how they are to decide unless they know how a candidate feels about issues of interest to them. Experience tells us that candidate answers on a questionnaire or comments made during a speech or an interview provide little real insight. Kentuckians have learned to be skeptical of political promises and bold declarations of principle. Self-serving campaign statements designed to exploit the views of a particular group are unreliable in predicting the outcome of an actual case. And one who makes such statements may be required to disqualify himself when the issue finally appears in court. The best way to judge a candidate for judicial office is to look at the whole person. Voters should look at the candidate’s background, education, employment, family circumstance, civic and religious involvement, personal habits and other factors that can’t be manipulated during an election campaign.
Far more reliable than what a judicial candidate says is who he is; and the best evidence of that is the life he’s lived and what others say about him. Court clerks, bailiffs, probation and parole officers, lawyers, police officers, news organizations and others familiar with the judicial process are good sources of information. A campaign ad paid for by a special-interest group featuring a person who has lost a case before a judge is not a reliable source.
For 30 years, the Kentucky constitution has provided for non-partisan judicial selection. Though perhaps not flawlessly, our system has worked well, and the Kentucky judiciary is recognized as a national model. Political parties and special interest groups should respect our constitution and keep the process of judicial selection above their partisan interests. Courts are a vital part of our democracy. No person and no group should be allowed to weaken Kentucky courts. Our rights under the constitution depend on fair and impartial courts and we must reject political and special interest interference in our judiciary.
The writer is chief justice of Kentucky.

Michael Stevens of has posted the following resources discussing judicial campaign issues:

“HL Editorial: “Let’s keep state’s judicial races out of campaign mud”"
KLB, Apr. 3, 2006
“Judicial Elections and Avoidance of Partisan Political Identification in the Campaign”
KLB, Mar. 29, 2006
“Judicial Elections: Herald-Leader Story on Contributions to Judicial Candidates”
KLB, Mar. 28, 2006
Opinion: Another Story on What KLB Calls “The ‘New’ Judicial Political Reality” and “The Price of Justice”
Kentucky Law Blog (KLB), Mar. 22, 2006
“News: The New Judicial Campaigning Gets Scrutinized Under the Blogoscope”
KLB, Mar. 16, 2006
Letter to Editor: “It is time we revisit appointing our judges rather than subjecting them to the elective process”
KLB referencing Courier-Journal ltr to editor, Mar. 9, 2006
“KLB Commentary on Campaigning While on the Goverment’s Payroll”,
KLB, dtd Mar. 8, 2006
The Court under attack  (
KLB Linked to it on Mar. 8, 2006
“Courts: Is Lady Justice Crying Now Under that Blindfold?”
KLB, dtd Mar. 4, 2006
“News: Stumbo challenges two special justices in hiring case”
KLB, dtd Mar. 4, 2006
“Blue Grass Report: More Fallout From Governor Fletcher’s Appointment Of Campaign Contributors To Supreme Court To Hear His Appeal”
KLB posting on Mar. 2, 2006 w/link to BG Report
“Judges: Courier Journal Editorial on Justice Graves’ Dropping Out of Race”
KLB, Mar. 2, 2006
“Judicial Elections: Money Talks But Will Candidates Balk?”
KLB, Feb. 20, 2006
“Judicial Elections: Campaign Finances and the Question of Partisanship”
KLB, Jan. 28, 2006
“Judicial Campaigns: Personal Solicitation of Funds by Candidates?”
KLB Posting and Comment referencing Indiana Law Blog post, dtd Jan. 26, 2006
“Judicial Elections: General Counsel to Republican Party Is Member of Judicial Campaign Conduct Committee”
KLB, Jan. 23, 2006
“Ethics: Boy Does this SCOTUS cert sound familiar – recusal and donations, oh my!”
KLB Post, dated Dec. 29, 2006
“Judicial Donations Not a Problem Exclusive to Kentucky”
KLB Post with reference to Indiana law Blog, dated Dec. 19, 2006
“Op-Ed: The New Political Reality of Judicial Campaigns”
KLB, Dec.11, 2006
“Judicial Elections: Campaign donation to justice questioned”
KLB, Dec. 4, 2006
“Judicial Complaint Filed Against Chief Justice Lambert and his Wife”
KLB Post, Aug. 1, 2005
“Getting Your Supreme Attention – Judicial Elections to be Monitored in 2006″
KLB, July 9, 2005
Judicial Ethics Opinions can be found and searched by clicking here.

Posted by Michael Stevens on Tuesday, May 09, 2006 at 11:39 AM in 2006 Election, Elections and Campaigns, Ethics and Professional Responsibility, Judiciary and Judges | Permalink

LawReader called : Fastest Digest in the West by Kentucky law blog

Saturday, May 20th, 2006

   The following article was posted on  by Michael Stevens of Louisville.   


LawReader: Fastest Digest in the West

Although we are cheap and easy in providing digests and information as a public service to Kentucky attorneys, we are not quick!   

Now, is the ‘fastest digest in the west’; west of the Big Sandy River that is. 

Here is a posting today from the blog entries at LawReader.  With your subscription to LawReader, you not only get FASTCASE (a more complete legal reasearch tool than the phantom CASEMAKER from the KBA since it will have ALL FIFTY states decisions and not just the consortium’s contributors) but you get a plethora (that’s LOTS) of other information on Kentucky law.  It’s chief editor is Retired Judge Stan Billingsley who knows the courtroom from above and below the bench.

Here is a link from today’s LawReader blog posting.  Note these digests are part of their subscription and should be worth the price of admission by itself, but the remainder of the tools available make this site a bargain.

Members of can read a synopsis and the full text of these cases.  To sign up go to  -  This feature is included in your monthly subscription fee.   

North Carolina may create Court of Last Resort to investigate claims of actual innocence

Saturday, May 20th, 2006

(North Carolina may create an Innocence Commission to study and report on cases where the courts may have convicted innocent people.  The bill has passed the House and is pending in the North Carolina state senate.)
 FAYETTVILLE N.C. – ONLINE:  Doan Nguyen, Omeako Lavon Brisbon and Lee Wayne Hunt went to court and said they did not kill the people they were charged with murdering.
Juries listened to the evidence and disagreed. All three men are serving life sentences.
The three took their cases to the state Court of Appeals and state Supreme Court. They lost.
Now the state legislature is considering a bill that would give these three and other inmates like them an avenue to challenge guilty verdicts. The bill would create the N.C. Innocence Inquiry Commission, which would have the power to free wrongly convicted inmates.
It would be the first agency of its kind in the United States.
The legislation to create the Innocence Commission, drafted by Rep. Rick Glazier of Fayetteville, passed the state House in 2005. It is pending in the state Senate. Sen. Tony Rand of Fayetteville, the Senate majority leader, said he expects the Senate to approve it.
I. Beverly Lake, who retired in January as chief justice of the state Supreme Court, has pushed for the state to create the Innocence Commission. He is disturbed by widely publicized cases in which men have been freed from state prisons when their innocence was established — but only after they spent years behind bars.
The Innocence Commission would review cases when inmates could show there was evidence missed in their trials that could have established their innocence.
Unlike the rest of the legal system, the Innocence Commission would not be adversarial — prosecutor competing against defense lawyer. Instead, said Chris Mumma, executive director of the N.C. Center on Actual Innocence, it would be a fact-finding body.
“Our adversarial process works pretty well overall,? she said. “But you need to tweak it a little bit for these cases where we’ve got concerns to ensure that we’ve got the highest level of confidence in all the convictions.?
Under the proposed legislation, if the eight-member commission found compelling evidence that a person was innocent, it would refer the case to a panel of three judges. A unanimous vote by the judges would free the person. If the judges voted 2-1 for innocence, the case would go to the state Supreme Court for a final decision.
North Carolina prosecutors have generally disliked the concept. Although their professional organization is not fighting the bill, district attorneys such as Johnson Britt of Robeson County have argued that the existing system of judicial appeals gives the truly innocent plenty of opportunity to make their cases.
The wrongful convictions that Lake cites as examples of the system’s flaws, the prosecutors have cited as examples of the system working — after all, the men were freed.
Lee Wayne Hunt
If Hunt is exonerated, he could provide another example of how the existing system works.
Court records and news accounts say Hunt, 46, was a drug dealer from a dangerous, crime-ridden area of Cumberland County.
He is serving two life sentences plus 20 years for the murder of Roland “Tadpole? Matthews and his wife, Lisa, east of Fayetteville in 1984. They were shot and stabbed in their home.
A man named Gene Williford testified against Hunt in exchange for immunity in the murder case. As part of Williford’s deal, court documents say, several charges against him — unconnected to the murder case — were dropped.
Williford testified that Hunt was angry with Tadpole Matthews for stealing marijuana from him and wanted to teach him a lesson. Williford said he, Hunt and two other men, — Jerry Dale Cashwell and Kenneth West — went to the Matthews’ house. Williford left, he said, and returned later to drive Cashwell, West and Hunt away.
He testified that he saw blood on West and Hunt. He testified that West later said Lisa Matthews begged for her life.
The prosecutors contended that Hunt, West and Cashwell went into the house and killed the couple.
Hunt and Cashwell were convicted. Cashwell later won a new trial, then pleaded guilty to lesser charges and got a life sentence plus 50 years.
West was allowed to plead guilty to accessory charges and got three years. At West’s plea hearing, the prosecutors’ story changed: West waited outside while Hunt and Cashwell went inside and killed the couple.
Cashwell hanged himself in prison in 2002.
After Cashwell died, one of his lawyers came forward with new information.
The lawyer, Staples Hughes, said Cashwell admitted privately in 1985 that he committed the murders alone. Hunt wasn’t there, he said.
Hughes kept this to himself until Cashwell’s death because laws and ethical codes require lawyers to keep their clients’ statements secret unless they have permission to talk about them.
“I remained deeply troubled about my silence over the years,? Hughes said in an affidavit in December 2004. “I knew that my silence had helped put an innocent man away for life.?
In December 2004, the N.C. Center on Actual Innocence asked for Hunt’s case to be re-opened in Cumberland County Superior Court.
The Center on Actual Innocence is a group of law professors and their students at Duke University and the University of North Carolina at Chapel Hill. It investigates wrongful convictions claims.
Hunt’s request to have his case reopened is pending in Cumberland County Superior Court. If a judge is convinced, Hunt could get a new trial or go free.
Even if Hunt is freed, Mumma — the director of the Center on Actual Innocence — doesn’t think his case would show that the current judicial-based system is sufficient to protect the wrongly convicted.
She cites the case of Darryl Hunt. Hunt, from Winston-Salem, spent 18 years in prison after he was wrongly convicted of a rape and murder. DNA evidence analyzed in 1994 determined that it was someone else’s semen in the victim’s body.
But Darryl Hunt did not get out of prison until 2003 and wasn’t cleared until 2004.
If a wrongly convicted man has to spend 18 years in prison, Mumma said, the system is failing.
Darryl Hunt tried 11 times after his conviction to get the courts to free him, she said.
Parental beliefs
Helen Joseph of Parkton and Dang Nguyen of Fayetteville insist that their sons are innocent. If they can establish evidence to support their beliefs, they don’t want their sons to sit in prison for years.
Joseph’s son, 25-year-old Omeako Brisbon, was charged with murdering brothers Jermaine and Johnny Jones Jr. They were shot to death five years ago outside The Zoo nightclub on Bragg Boulevard.
Brisbon insisted he was home all night. His right hand was broken and immobilized in a cast. He had a cookout with friends.
Three of Brisbon’s guests testified they stayed overnight and he was home the whole time. One of those guests said Brisbon was too drunk to drive.
Prosecutor Cal Colyer had two people testify they saw Brisbon at The Zoo that night.
Kareem Wilson testified that he did not see the shooting, but he saw Brisbon in the parking lot.
Rachel Gonzalez testified she saw Brisbon drive into the parking lot. She said that after Brisbon got out of his car, a man bumped into him. She said she saw Brisbon shoot the man.
The jury convicted Brisbon in 2004.
Dang Nguyen’s son, 21-year-old Doan, was accused of killing Tarandy Cutts, 18, of Fayetteville in 2002. Cutts was shot on a basketball court at Walker-Spivey School in Fayetteville.
Nguyen was playing basketball that evening with Bobby Nearn and Antonio Autry when Cutts rode up on his bicycle.
Nguyen testified on his own behalf. He said Autry killed Cutts. But two teenagers who had sneaked out of a nearby group home testified that — from a distance — they saw Nguyen shoot Cutts.
Nearn and Autry testified that they heard the shots but did not see the shooting.
Evidence required
Neither Brisbon nor Nguyen will get help from the Innocence Commission unless they come up with evidence that their juries never saw. The commission won’t retry a case on the old evidence, Mumma said.
Helen Joseph and Dang Nguyen are looking for new evidence.
Joseph hired private investigator T.V. O’Malley to find evidence to refute the statements from Gonzalez and Wilson. O’Malley helped free Timothy Hennis from Death Row in 1989 after his conviction in the murders of an Air Force wife and her children. O’Malley said he couldn’t find evidence to help Brisbon.
Joseph said she is seeking someone else to investigate and she plans to contact the Actual Innocence Center.
Doan Nguyen has asked the Actual Innocence Center to investigate his case. It is under review there.
His mother has a letter from a man who says he can corroborate Nguyen’s testimony about the killings.
The man, Gregory Tramaine McNeil, was in prison for burglary and robbery when he wrote his letter in 2003. He offered to help Nguyen in exchange for a reduction in his own prison sentence.
McNeil’s sentence expired in January 2005.
But now McNeil is charged with stealing a car from two women at gunpoint in January 2006.
Other options
Without the Innocence Commission, Brisbon and Nguyen’s main option is to file a motion for appropriate relief. It’s the court document Lee Wayne Hunt is using to try to get his case revisited.
Mumma, who has been a leader in pressing for an Innocence Commission, said a group that studied the innocence issue considered adjusting the laws for such motions. But the group, which then-Chief Justice Lake appointed several years ago, decided it would be simpler and more effective for the state to create the Innocence Commission.
The laws for motions for appropriate relief are too complex to easily adjust to address claims of wrongful conviction, Mumma said.
Such motions work well primarily for death penalty cases, she said. The severity and finality of the death penalty causes the state to closely examine them for flaws, she said.
“It’s the life sentences or the long sentences that don’t have that type of scrutiny,? Mumma said. She said she read recently that people on Death Row who claim innocence sometimes prefer to stay on Death Row because they think they will stand a better chance of winning their freedom there. “They don’t want to be removed for life because then everyone forgets about them,? she said.
By Paul Woolverton  Staff writer Reprinted from Fayetteville Online


Friday, May 19th, 2006

Members of can read a synopsis and the full text of these cases.  To sign up go to  -  This feature is included in your monthly subscription fee.
Important cases:

1 2 Where failure or a defect cause injury to the plaintiff, a jury instruction permitting the jurors to assign liability is proper.
3 pursuant to KRS 527.060, a conviction is required before property can be forfeited to the state.
4 TO BE PUBLISHED: The doctrine of contributory negligence does not apply to claims against highway authorities in Kentucky before the Board of Claims….
5 6 Fact that husband had affair and is seeing new friend after divorce is not sufficient to deny joint custody
7 failure to name an indispensable party in the notice of appeal results in dismissal of the appeal
8 9 10 11 policeman by ignoring department policy regarding chasing motorist, did not forfeit his right to arrest fleeing defendant…such arrest provided no defense to said defendant
13 TO BE PUBLISHED: inmate appeals:  inmates do not have the right either to retained or to appointed counsel for disciplinary actions
14 15 The law imposes lifetime registration requirements for sex offenders who had a prior conviction, or whose victims were minors. KRS 17.510. 
16 17 defendant has a duty to be honest and forthright with the plaintiffs and with the trial court – on discovery of failure to do so court was correct to reinstate civil action previously dismissed for lack of prosecution
18 the twenty-one-year sentence exceeded the maximum sentence of twenty years
19 school Board was entitled to immunity under the Recreational Use Statute

20 allocation of court costs and an award of an attorney’s fee are entirely within the discretion of the court
21 it is not in the province of this Court to substitute our judgment for that of the fact-finding circuit court
22 the Cabinet failed to prove the statutory requirements for termination of parental rights by clear and convincing evidence

23 24 25
26 TO BE PUBLISHED: we reverse the circuit court because we believe that the circuit
court erred by substituting its judgment as to the credibility of witnesses and by misapplying the law.
27 the trial court’s revocation order failed to make the requisite written factual findings concerning the conditions of release
28 this Court has no authority to review issues that were never raised before nor ruled upon by a lower court or the ALJ.
29 Defendant’s motion is DENIED for lack of jurisdiction as waived as, untimely raised and for failure to set forth any special circumstances justifying C.R. 60.02 relief.
30 We agree with the Board, however, that the evidence does not compel the result Thomas seeks.

Important cases:
1 Fletcher v. Stumbo- it is the prerogative of the grand jury to issue a general report of its investigation, so long as pardoned or unindicted individuals are not specifically identified – acceptance of a pardon is presumed – blanket pardons upheld
2 3
4 The “good faith” exception will not save an improperly executed search warrant
5 Dissent: peremptory challenges in both civil and criminal trials can be allocated at the whim of trial judges,
7 Future Medical Expenses windfall should be awarded to the injured party, not the UIM insurer who stands in the shoes of the tortfeasor.
8 evidence of the Appellant’s past affair with Ms. Baumgardener is admissible
9″[O]ne may not stand by and make no objection to a proceeding in court with the anticipation that if it results favorably the benefits will be accepted, but that if it results unfavorably objections will be made
10 11
12 we find it unreasonable to presume that unallocated portions of a tort settlement were meant to pay for attorney fees and expenses.
13 while evidence of an insurer’s litigation conduct may, in some rare instances, be admissible on the issue of bad faith, such evidence will generally be inadmissible
15 the incorrect notation as to manner of service as a clerical mistake under RCr 10 .10, correctable (if need be) nunc pro tunc
16 17 18 19 20
21 the statement, “I don’t want to talk about it” to be an unequivocal assertion of the right to remain silent
22 Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to authorities
23 24
25 the right of an arresting officer to search the passenger compartment of a vehicle(does not)  terminate when the arrestee cannot access the vehicle to destroy evidence or access a weapon
26 27 28 when CR 35.02(1) is triggered by the examined party’s request for production of the independent medical examiner’s report, that party has a reciprocal obligation to produce a like report of all similar examinations .
29 30 31 32 33 34 35 36 37 38