Archive for August, 2006

Ohio presidential ballots to be preserved pending investigation of irregularities.

Thursday, August 31st, 2006

By IAN URBINA  With paper ballots from the 2004 presidential election in Ohio scheduled to be destroyed next week, the secretary of state in Columbus, under pressure from critics, said yesterday that he would move to delay the destruction at least for several months.

Also in the Guide The Race for the U.S. House Governors’ Races Since the election, questions have been raised about how votes were tallied in Ohio, a battleground state that helped deliver the election to President Bush over Senator John Kerry.

The critics, including an independent candidate for governor and a team of statisticians and lawyers, say preliminary results from their ballot inspections show signs of more widespread irregularities than previously known.

The critics say the ballots should be saved pending an investigation. They also say the secretary of state’s proposal to delay the destruction does not go far enough, and they intend to sue to preserve the ballots.

In Florida in 2003, historians and lawyers persuaded state officials not to destroy the ballots in the 2000 presidential election, and those ballots are stored at the state archive.

Lawyers for J. Kenneth Blackwell, the Ohio secretary of state, said although he did not have the authority to preserve the ballots, Mr. Blackwell would issue an order in a day or two that delays the destruction and that reminds local elections officials that they have to consult the public records commissions in each county.

Federal law permits, but does not require, destroying paper ballots from federal elections 22 months after Election Day.

The critics say their sole interest in the question is to improve the voting system.

“This is not about Mr. Kerry or Mr. Bush or who should be president,’’ said Bill Goodman, legal director of the Center for Constitutional Rights, a New York group that is part of the lawsuit. “This is about figuring out what is not working in our election system and ensuring that every cast vote counts.

“There is a gap between the numbers provided in the local level records, which until recently no one has been allowed to see, and the official final tallies that were publicly released after this election, and we want to figure out why that gap is there.�

The planned action of Mr. Blackwell, a Republican who is running for governor, and the threatened suit could draw attention to possible irregularities in the election that he supervised.

The suit would follow what researchers call the first time anyone other than county and state officials in Ohio have been given such extensive access to the main material from the previous presidential election.

After eight months inspecting 35,000 ballots from 75 rural and urban precincts, the critics say that they have found many with signs of tampering and that in some precincts the number of voters differs significantly from the certified results.

In Miami County, in southwestern Ohio, official tallies in one precinct recorded about 550 votes. Ballots and signature books indicated that 450 people voted.

The investigation has not inspected all 5.6 million ballots in the election because the critics were not given access to them until January. That followed an agreement by the League of Women Voters, a plaintiff in another election suit against the state, that it was not contesting the 2004 results, Mr. Goodman said.

The new suit, to be filed in Federal District Court in Columbus, would be argued on civil rights grounds, saying the state deprived voters of equal treatment.

Last week, lawyers sent a legal notice to Mr. Blackwell notifying him that suit was pending and asking him to issue an administrative order directing the 88 county election boards to retain the 2004 records.

“The decision of who decides whether the records will be preserved is quite simply not the secretary’s to make,� said Robert A. Destro, a lawyer for the secretary of state’s office.

Mr. Destro said preservation decisions belonged to the county public records commissions, the county boards of elections and the Ohio Historical Society.

“But by issuing this order,� Mr. Destro added, “the secretary of state will prevent any records from being destroyed for at least several months while this matter is studied more closely.�

Steven Rosenfeld, a freelance reporter formerly with National Public Radio, said the investigative team analyzed three types of sources. They are poll books used by officials to record the names of voters casting ballots, signature books signed by voters and used to verify that signatures match registration records, and optical scan and punch card ballots, used by 85 percent of the voters in the state. The rest used touch-screen machines.

We’re not claiming that what we found reveals a huge conspiracy,� Mr. Rosenfeld said. “What we’re claiming is that what we found at least reveals extremely shoddy handling of ballots, and there are some initial indications of local-level ballot stuffing.�


Also in the Guide The Race for the U.S. House Governors’ Races In Miami County, Mr. Rosenfeld said, the team found discrepancies of 5 percent or more in some precincts between the people in the signature books and the certified results.

In 10 southwestern counties, he said, the team found thousands of punch card ballots that lacked codes identifying the precinct where the ballot was cast. The codes are typically necessary for the machines processing the ballots to “know’’ to record which candidate receives the votes.

Mr. Rosenfeld is a co-author of a book that The New Press is to publish next month, “What Happened in Ohio?: A Documentary Record of Theft and Fraud in the 2004 Election.� The other co-authors are Harvey Wasserman, an election rights advocate and an adjunct professor of history at Columbus State Community College, and Robert J. Fitrakis, a lawyer who is running for governor as an independent.

Robert F. Bauer, a lawyer from Washington who represented Mr. Kerry and the Democratic National Committee on voting issues before the 2004 election, was skeptical about the critics’ case.

“The major discrepancies that they are identifying are not materially different than what has already been highlighted,� Mr. Bauer said.

On Tuesday, Mr. Kerry sent a fund-raising e-mail message calling for support for Representative Ted Strickland, the Democrat who is running for governor. Mr. Kerry wrote that Mr. Blackwell “used his office to abuse our democracy and threaten basic voting rights� in 2004.

Multiple suits failed in challenging the 2004 election in Ohio, and most studies after the election concluded that irregularities existed, but that they would not have changed the outcome.

In January 2005, the Democratic members of the House Judiciary Committee issued a report finding “massive and unprecedented voter irregularities and anomalies� in the election.

In March 2005, the Democratic National Committee issued a report that said 2 percent of the Ohio electorate, or “approximately 129,543 voters,� had intended to vote but did not do so because of long lines and other problems at polling stations.

But the report said those and other frustrated voters “would not have erased Bush’s 118,000 vote margin in the state.�


Is domestic snooping a form of censorship?

Wednesday, August 30th, 2006

The first federal court decision to address the legality of warrantless eavesdropping on U.S. citizens’ telephone and Internet conversations caused quite a stir when it was handed down Aug. 17.

In that case — American Civil Liberties Union v. National Security Agency — U.S. District Judge Anna Diggs Taylor of the Eastern Michigan District said the Terrorism Surveillance Program:

Violated the First and Fourth amendments to the Constitution.

Ran afoul of the Foreign Intelligence Surveillance Act of 1978.

Didn’t rise to a state-secrets privilege in one important aspect.

Strayed beyond the bounds of the president’s authority under the separation-of-powers and inherent-powers doctrines.

Defenders of the surveillance program said the judge was wrong in her conclusions, her reasoning was weak, the ruling was bound to be overturned by higher courts, and besides, she was a liberal.

The opinion has critics from both sides. Howard J. Bashman, who maintains the authoritative legal blog “How Appealing,” told The New York Times: “It does appear that folks on all sides of the spectrum, both those who support it and those who oppose, say the decision is not strongly grounded in legal authority.”

Clash of views

The question of whether the decision will survive the appeals process aside, a number of similar clashes between national security and personal liberties are showing up on court dockets across the nation.

In Maine on Aug. 21, federal prosecutors went to court to keep state utility regulators and Verizon from revealing information about whether the company violated laws protecting customer calling data and other confidential records by participating in the NSA’s domestic-surveillance program. The U.S. Justice Department has filed similar suits in Missouri and New Jersey.

Last month, a federal judge in California turned back the government’s efforts to invoke the state-secrets privilege to dismiss a lawsuit in which the Electronic Frontier Foundation charged that AT&T was cooperating with the NSA in spying on Americans’ domestic and international communications.

In all, more than 17 class-action lawsuits from 13 different federal court districts alleging telecommunications companies’ complicity in government eavesdropping on private communications have been consolidated in the court of U.S. District Judge Vaughn Walker in San Francisco.

These important cases pit the federal government and telecommunications companies against civil liberties and privacy organizations. All parties insist they are acting in the best interests of the nation and its citizens.

The ultimate stakeholders: millions of U.S. citizens whose telephone and Internet conversations could wind up in an impersonal government database or in the cross-hairs of anti-terrorism investigators.

Although the ACLU v. NSA decision may not have a direct effect on the other cases, it does raise the essential issue of how best to reconcile the needs of protecting national security and individual freedoms.

The First Amendment is invoked in most of these legal battles.

In the ACLU case, three groups of citizens — lawyers, journalists and scholars — claimed that the warrantless eavesdropping program injured their freedom of speech and association because they “conducted regular international telephone and Internet communications for various uncontestedly legitimate reasons including journalism, the practice of law and scholarship.”

Rights threatened

Those rights always are at risk when government spying programs are formulated without careful attention to balancing the good done for security against the harm done to liberty.

Unfortunately, these needs often are lost in partisan arguments that lay out the issue simplistically as a battle between those who are for security and don’t care about freedom and those who care only about freedom and not about security.

That presents a false choice, as if no ways exist to develop policies and programs that resolve the conflict between potential harm to our security and the potential damage to our rights.

To approach the problem any other way is to create an environment in which citizens fear their government instead of or in addition to their enemies.

If security trumps freedom, the question arises about what it is we are protecting. Freedom of speech, even dissent, is not just at the core of our freedom, it is an essential component of security.

Interestingly, the final words of Taylor’s ruling are from Supreme Court Justice Earl Warren’s 1967 opinion in U.S. v. Robel: “Implicit in the term “national defense’ is the notion of defending those values and ideas which set this nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties.”

The writer is First Amendment ombudsman at the First Amendment Center. Contact him at 1101 Wilson Blvd., Arlington, Va. 22209, or at





Law prohibits lawyers from immediate contact with crash victims families

Tuesday, August 29th, 2006

HERALD-LEADER FRANKFORT BUREAU Attorney General Greg Stumbo cautioned attorneys today against contacting family members of the 49 people killed in the crash of Flight 5191 Sunday in Lexington.

Stumbo, citing the Aviation Disaster Family Assistance Act of 1996, warned the legal community that grieving family members are protected from any unsolicited communication for 45 days after their loss. “It’s not just the right and moral thing to do — it’s the law,� Stumbo said in a statement. “No attorney, or any representative or employee of an attorney, should intrude upon this very private and personal time of mourning.�

The federal law limits contact by lawyers and imposes a $1,000 a day fine for violations. Even after the 45-day federal waiting period, Stumbo said, Kentucky court rules forbid direct contact where the lawyer has no prior direct relationship with the prospective client. These rules do not apply to contact initiated by victims’ families.

The Attorney General’s Office is contacting Kentucky Bar Association representatives to ensure compliance with the law. Stumbo also has put a link to the Federal Family Assistance Plan for Aviation Disasters on his Web site, “This gives the public ready access to the National Transportation Safety Board’s resources contained on its Web site,� Stumbo added.

The attorney general’s Web site also has a direct link to the NTSB’s Information for Friends and Family, which contains readily accessible information regarding family assistance.

A fool and his money. LawReader Editor interrogated by German Police!

Tuesday, August 29th, 2006

Munich, Germany.  August 27.    By Stan Billingsley, Senior Editor This story continues a series written by Stan Billingsley on his trip to Europe.

Its not as if I havent been around the block once or twice.   I know about things like going through customs, making hotel reservations, reading a foreign train schedule and even buying a ham sandwich in about seven different languages.  I have crossed the big water on four different occasions, once lived in a foreign country and attended school there….but I guess I was no match for the great pick pocket scam in Salzberg, Austria.

Yes just as the sun was setting in the west and our weary travelers felt the call of home…as our travel adventure was ending about $1000, credit cards,  some travelers checks, my driver’s license (my golf handicap card the bastard can keep) and my health insurance card…(he has socialized medicine what did he need my Humana health card for?) were picked from my pocket easier than Seinfield “touched� (not picked) his nose.

I can tell you when it happened, how it happened, and what the guy looked like..a perfect setup for the idiot American tourist.   Now imagine this and see how cool this was in so many ways…I have  to take my LawReader cap off for this criminal…this was smooth.

The train to Munich pulled into the crowded station in Salzberg, Austria. The train stops about ten minutes to unload and reload, so everyone has to hustle.  We were boarding the 11:03 to Munich.  I had two heavy bags and Gwen was behind me with her heavy suitcase.   Then add about 20 people behind us in line to get on the train.  I was lifting one bag up and a young man already on the train reached down and helped me with my bag.   (“What a nice young man�, I said myself.)   Then I turned around to help Gwen with her bag. With that accomplished and knowing the other people was anxious to get on behind us, I turned down the hallway on the train (it had private compartments instead of being one large train car…and of course the hall way was very narrow.

The young man who had helped me on the train and was in front of me going onto the train, suddenly turned around and started trying to get off the train against me and all the people behind me….I was forced to press against the wall to try to make room for him to squeeze by…and he raised up his bag to get over mine and he bumped against me and then pushed by Gwen and the others behind me and left the train.

About l5 minutes later, as we were entered Germany, already at about 50 miles per hour, I reached for my wallet to pay for a bottle of water I had ordered….and you know what…old “Buzzâ€? Billingsley,  the experienced foreign traveling correspondent didn’t slap his trusty wallet, he only slapped some bare ass…and when his hand came back up it didn’t have a colt .45 or a wallet in it, it just had a fist full of fresh German air.

I knew instantly how this had gone down, and knew instantly that there would be no recovery of that money and probably the rest of the wallet was already being sold to Osama Bin Laden to help finance some Kathousa rockets for Herzbolla.

Well Gwen was right behind me but never saw anything suspicious.  After all I had been handing out large wads of cash to foreigners for the last 8 days!!

I had had my pocket picked clean.  I had violated the number one traveler’s rule…never, never put your fat American wallet in your back pocket!
With the help of a very nice Dutch lady who was going back to dutchland after spending some time in her Austrian mountain top bunker, and who spoke both English and German, I was able to report to the conductress of my misfortune…in the slim hope that I had dropped it and someone had turned it in to the lost and found.

The conductress handled the lost part very well, but there was no found portion to this tale of woe.

    I was advised by the Conductress to report the theft to the German police when I arrived in Munich.  I took this as an order and reported to the Bundespolizelinspektion Munchen immediately upon arriving at the train terminal.

    I found the office near track 26.  It had a small discrete sign with the word “polize� painted on a one-way mirror in the heavy metal door.  I pushed the intercom and explained I wanted to report a theft.  The buzzer on the door even buzzed in german.

I entered a small vestibule where they could view me, and then buzzed me through to the next room. Gwen accompanied me for moral support.  As the heavy metal door slammed behind me a chill ran up my spine. I had visited clients in jail and knew the sound of a metal prison door slamming shut behind me.

The police officers looked at me with cool dispassionate German eyes. These guys all had blue eyes…this was not a good sign. I instantly recognized the fact that they knew how to question Americans.  I was told to wait until they could summon a special officer who spoke English after they determined I was a foreigner.

The special officer came to the polize counter and looked at me as if he was sizing me up for the water board or the electric generator. He  waived me through another door.  I realized that one of my nightmare dreams was about to come true.  I was going to be interrogated by the German police deep within the bowels of the Polize headquarters.  Would my Wednesday golf buddies ever see me again?  Did Gwen know to immediately lodge a missing persons report with the American Embassy?  Would the American Embassy even care about me? Damn Rumsfield and his contempt for the Geneva Convention!

Gwen decided that discretion required her to remain in the waiting room while I was interrogated…(I looked at her…raising an eyebrow….trying to send a message of distress… expecting she would grab my leg and scream out loud “don’t take my man,  please don’t transport him like the others..â€? But no…she avoided all eye contact and started whistling a tune whose title was something like “Oh Happy Day.â€?)

The officer who spoke English, didn’t speak much English, and didn’t need to. He shoved a pink piece of paper and a pen at me across the metal table that was bolted to the floor of the sound proof room.   (Ah I thought, they have already written out the confession they want from me.  I know how this works, first try the easy way and if they don’t sign the confession…well these people have ways to make you talk!!)

The printed form directed me to give the details of the crime.  I checked it carefully to make sure it didn’t include anything about the Jon Benet murder or the Lindberg kidnapping and concluded that torture was not my thing. I would sign anything they wanted me to.

I was not without training for this type of interrogation. As a retired First Lt. in the National Guard I had received training at Fort Knox in Officer’s Candidate School. At OCS we learned that under the Uniform Code of Military Justice we were obliged to only give our name, rank and serial number and to not disclose the activities or numbers of my unit….and to hold out as long as I could before signing anything.  I have a great deal of admiration for Senator McCain, he held out for five years in the Hanoi Hilton, but these guys were Germans, and I must confess that I caved in immediately.

Now there are a number of you who may be reading this, and if you learn that you are wanted for questioning in the German Republic….please forgive me…I may be the source of your popularity in Munich.  I especially want to apologize to Mike Stevens, my brother Wayne, Mike McMain, Wilbur Zevely, Steve Horner, Jay Bamberger, Mark Modlin, Judge Mike Collins, Judge Charley Moore, Judge Frohlich, the members of the Judicial Conduct Commission, the members of the University of Kentucky College of Law class of l971, and the Vienna Boys Choir.  They seemed particularly interested in Mark Nickolas…sorry Mark, but I was desperate.

After completing the document, the  red headed officer with a chisled prussian face, who was wearing a light green uniform and carrying a Walther PPK pistol on his hip (or was it a Glock?), read my admissions and then took out his ink stamp and slammed it several times onto the pink document. (I wonder if the confession was printed on pink paper as an added humiliation?) I was sure that Gwen, who had abandoned me and had remained in the next room, could hear the loud noise of the stamper hitting the document and was sure that she would think he was “loosening me up a bit�.  Hopefully she will think I put up the degree of resistance that I shamelessly lead her to believe I had given.

Finally, after seconds that seemed like a lifetime, I was handed the pink paper I had signed, and told that the credit card companies would need this when I reported my loss to them.  Having successfully completed his interrogation, and having recorded my passport number and my hotel address, I was released. 

I immediately headed for the first taxi I could find in front of the train station and told the driver to get me to the airfield as quickly as possible..a large tip would be involved.  We took the autobahn.  Our driver was doing over 140 kilometers an hour, but still a parade of Mercedes, BMW’s and 12 cylinder Audi’s passed us in the fast lane like we were standing still. (I couldn’t tell if we were being followed.)  The driver said that motorists sometimes drove 200 m.p.h. in the fast lane on the autobahn…I didn’t doubt him and encouraged him to move over into the fast lane and to step on it. I hopped the next plane to London and left Germany immediately.

Fletchers veto of judicial elections is challenged

Tuesday, August 29th, 2006



The Kentucky Supreme Court could weigh in on the constitutionality of Gov. Ernie Fletcher’s controversial line-item veto of provisions requiring the election of nine new judges, a move that allowed him to appoint them instead.

Georgetown lawyer Neil Duncliffe, 58, has filed a lawsuit challenging the vetoes, which Fletcher made in April. Duncliffe’s petition to get on the November ballot for a new family court judgeship covering Scott, Woodford and Bourbon counties was rejected by the Secretary of State’s office on Aug. 1.

“I did think it was wrong for the governor to cancel nine elections. I really do,” said Duncliffe, who practices family and personal injury law. “We’re supposed to be about elections; we’re not supposed to be about appointments.”

On Aug. 7, a day before the deadline to get on the ballot, Duncliffe filed suit in Franklin Circuit Court.

This week, Supreme Court Justice Donald Wintersheimer denied an emergency injunction to place Duncliffe on the ballot uncontested. Because general election candidates were certified Monday, the issue is moot, Wintersheimer ruled.

But Wintersheimer did not rule on the merits of the case.

Former Justice James E. Keller, who is representing Duncliffe, said the door is still open for the Supreme Court to throw out Fletcher’s line-item vetoes.

Louisville lawyer Sheryl Snider, who is representing Secretary of State Trey Grayson, called that prospect remote.

“If the Supreme Court declined to step in now, I can’t imagine they will step in later in the process where there would be even more eggs they would have to unscramble,” Snider said.

A Fletcher spokesman has said the governor vetoed the election requirements so the bill would comply with the state constitution, which he said forbids holding a judicial election before it has been funded.

The nine judgeships, seven in circuit court and two in district court, are effective Jan. 1.

Some Democrats have accused Fletcher, a Republican, of court-packing. They say he robbed voters of the right to choose those judges.

The new judges will have to run for election in November 2007 to finish the eight-year term. Incumbents are typically favored to win re-election.

Several Republicans have defended Fletcher and the vetoes. Rep. Stan Lee, R-Lexington, said he has no problems with the vetoes. It’s within the governor’s constitutional authority, he said.

Voters “will have an opportunity to pick them at some point,” Lee said.

Fairness questioned

Lawyers representing the government have portrayed the lawsuit as a creative ploy to put Duncliffe on the ballot uncontested.

The vetoes were made on April 24. But Duncliffe waited nearly three months to sue.

Placing Duncliffe on the ballot unopposed while giving nobody the chance to run against him stomps on the public’s right to pick judges, Snider argued.

An appeals court agreed, denying the injunctive relief on procedural grounds. By filing so late, Duncliffe did not give possible opponents a chance to run, the court said.

“The aspiration to run unopposed in this case amounts to the pursuit of a windfall rather than the assertion of an actual right,” Chief Judge Sara Combs wrote.

Approving the injunction also would have created the potential for troubling scenarios, the appeals court said. If the Supreme Court had ruled against Duncliffe after he had been seated, the election results would be nullified and Duncliffe would have to step down.

That could create a flood of litigation questioning the validity of his rulings, the court said.

Keller said that Duncliffe did not have standing to sue until July 15, when the judiciary budget bill took effect. It also took time for Duncliffe to make up his mind, Keller said.

“Whether to run for office and give up a very successful legal practice … that’s a big decision,” Keller said. “That is not a snap consideration.”

He said nothing prevented other potential candidates from also filing suit.

In the constitution

The line-item veto is authorized in Section 88 of the state constitution. It reads, in part, “The Governor shall have the power to disapprove any part or parts of appropriation bills embracing distinct items …”

Keller says that only allows the governor to line-item veto specific expenditures in appropriations bills. It does not allow him to erase words, phrases, clauses or sentences to alter legislative intent, he said.

The state Supreme Court has never ruled on the issue.

In a development that went largely unnoticed, Fletcher employed similar line-item vetoes in the budget bill.

For example, Fletcher struck “encouraged” from a line that read: “The University of Kentucky is encouraged to provide funding in fiscal year 2006-2007 and fiscal year 2007-2008 to the Cooperative Extension Service to support the County Extension Enhancement Initiative.”

House Democratic Whip Joe Barrows, of Versailles, has said the change essentially created an appropriation that was not authorized by the legislature, which is constitutionally charged with controlling the government’s purse strings.

Lawyers representing the government argued that courts in states with partial veto clauses worded similarly to Kentucky’s have consistently ruled that the governor may veto text, as well as appropriations, in a bill.

Charges against Governor Fletcher dismissed by Judge Melcher…read the Governors statement

Thursday, August 24th, 2006

August 24, 2006 


My Fellow Kentuckian: 


As you have heard, it’s over.  I have been cleared of all charges against me and have been exonerated of all allegations.  Judge Melcher has agreed to the dismissal of these charges. 


Throughout this ordeal, I have maintained my focus on improving education, assuring health care for Kentucky families, especially our aging population who depend on Medicaid and growing economic opportunities for jobs and businesses.  This administration has made enormous progress in each of these areas. 


I have said all along that mistakes have been made and the buck stops with me. 


Now that this distraction is over, my administration will sharpen and re-double efforts to make the Commonwealth of Kentucky a better place to live and work.  You deserve that, and this administration is committed to making it happen. 


Thank you for your continued support. 




Ernie Fletcher

Legal experts take exception with Melcher’s ruling which creates immunity for Gov. Fletcher from criminal prosecution

Monday, August 21st, 2006

A legal shieldOfficial immunity not one-size-fits-all -
By Dan Hassert Cincinnati  Post staff reporter
The police officer couldn’t take it anymore.
Accused of making a false arrest, he’d been sued in federal court for allegedly violating a suspect’s civil rights. And even though a judge threw out the case, the extensive discovery process and an appeal had taken its toll. The officer couldn’t stand the prospect of knowing every split-second decision he made on the streets could bring another lawsuit.
“The ordeal, the stress, the anxiety, the deposition, the waiting – he got out of the profession,” said Covington attorney Jeff Mando.
Mando, who has made a career out of defending police officers, city council members and other government employees against lawsuits filed by citizens upset at their decisions, said the officer’s story, circa the late ’90s, illustrates the rationale behind an oft-misunderstood legal doctrine called immunity.
The legal protection, he said, gets a bad rap from critics who say it puts officials above the law. That’s not true, Mando said.
“Immunity is not designed to insulate elected officials who are acting with some type of ulterior motive, or acting for personal gain or to get revenge,” he said.
Rather, it’s to keep public offices from being ground to a halt by disgruntled citizens, to keep officials from being “unduly cautious” in making decisions, to keep government from going bankrupt and to prevent fear of legal attacks from driving off would-be employees.
But immunity is a complicated, controversial concept whose application isn’t always clear-cut.
That has been made apparent over the last week with a judge’s decision to award Kentucky Gov. Ernie Fletcher temporary executive immunity in a case alleging he broke state hiring laws.
The decision, announced verbally at a hearing Aug. 11, effectively postpones any prosecution of Fletcher as long as he is governor, said Special Franklin District Court Judge David E. Melcher.
Melcher’s seven-page written ruling, released Friday, cites a federal case that suggests forcing a chief executive to be tied up in court would limit his or her ability to run the country. “Proceeding with a criminal case for official misconduct is presently outweighed by the time intrusion it would impose on the executive branch,” Melcher’s ruling says.
But the decision, and his rationale, has elicited criticism from legal experts and others who maintain the judge confused civil immunity – protection from being sued for decisions made in the course of public duties – with criminal immunity, or protection from prosecution for alleged criminal acts. The protection for civil liability is a lot broader and stronger and has clearer basis in the law.
Melcher’s “creation of a new legal doctrine … flies in the face of the basic philosophy on which this country was founded, that no man is above the law, not even the chief executive,” wrote Stan Billingsley, a former district and circuit judge from Northern Kentucky, in a column shortly the decision came out last week.
In an interview on Friday, Billingsley, who writes and edits, an electronic newsletter for legal professionals, noted that Melcher’s written ruling was careful to award criminal immunity for only official acts, not unofficial ones. Still, he said, the ruling had no basis in either federal or state law.
“He got himself in the trap of writing legislation,” Billingsley said.
Immunity from arrest is awarded (via the U.S. Constitution) only in the narrowest of circumstances – to state legislators discussing or voting on the floor, or preparing to do so, he said. And even then, if the charge involves bribery, that immunity disappears.
But in their motion asking that charges be dismissed, attorneys for Fletcher argued that the same protection awarded in civil cases be extended to criminal cases on several grounds – that it was suggested by the separation of powers section of the state Constitution, that criminal proceedings would cripple a governor’s ability to do his job, that fear of being a target of a politically motivated attorney general would make a governor too cautious in his decisions, and because a governor can’t be jailed for official acts while in office.
They noted that the immunity would be only for official acts, not for unofficial ones like murder or fishing without a license.
But Ken Katkin, who teaches constitutional law at Chase College of Law in Highland Heights, said in his opinion the distinction between official and unofficial capacity in this case is irrelevant – there is no shield from criminal proceedings for governors, period.
Still, he said, it’s easy to be confused.
“I don’t blame the judge,” Katkin said. “The doctrines (for civil and criminal immunity) use a lot of the same language and overlap a lot.”
Furthermore, the case law is ragged and spotty.
“There’s no case in history where push comes to shove and the prosecution goes forward against a sitting president or governor and the immunity issue gets aired out,” Katkin said.
Whereas governors from other states, such as Bob Taft of Ohio, have been convicted of crimes, those governors didn’t try to invoke the immunity defense. Taft, for example, pleaded no contest to four misdemeanor counts of failing to report gifts from people doing business with the state.
Part of the confusion is that there’s so many different kinds of immunity protection outlined in piecemeal fashion in court cases, the Constitution or English law, Katkin said.
For example, government agencies themselves typically enjoy sovereign immunity.
Likewise, the U.S. Supreme Court has given the president absolute immunity from civil lawsuits arising from his or her official acts. And a president, unlike a governor, enjoys a sort of “practical” immunity when it comes to criminal prosecution, since he can fire any attorney general who starts investigating him, just like former President Nixon did during the infamous Saturday Night Massacre, Katkin said.
In Kentucky, the state Constitution and court cases arising from it have given legislators limited absolute immunity from arrest or lawsuit during their official acts, such as votes on the floor. For the most part, judges enjoy similar protection when issuing rulings from the bench. That’s because if defendants could sue judges, “cases would never be final,” said state Appellate Judge Dan Guidugli.
Likewise, public employees like police officers and zoning officials receive qualified immunity that generally protects them from being sued for reasonable decisions made in the course of their duties.
Interestingly, there’s been a retreat in some areas: Charitable immunity (for churches and non-profit hospitals) no longer applies, nor does spousal immunity (forbidding spouses from suing each other), Mando said. And the protection of the Good Samaritan rule has eroded.
Guidugli said he’s seen numerous cases dealing with civil immunity during his many years on the bench but has never seen one involving criminal immunity like the governor’s.
“This is sort of uncharted territory,” he said, and one that requires caution.
“Once you give (a governor) executive privilege on the smallest charges, you have to give him immunity on the greatest charges, and that’s a dangerous precedent,” he said

Judge Melcher delves deeper into activism by creating distinctions

Friday, August 18th, 2006

Written by Stan Billingsley, staff editor

I am currently away from the office and relying on email versions of the decisions which I have not finally read. However, I can say that Judge Melcher’s attempt to distinguish between laws which, when violated by the Governor, can be prosecuted and those for which he can’t be prosecuted, is his own creation unsupported by precedent.  The distinction created by Judge Melcher is judicial activism at its worst.  The legislature has created no such distinction nor has any prior court decision. Judge Melcher apparently cites one case as authority for his creation of the official  immunity doctrine.  The one case cited, applied only to the President of the United States and it was only presented in hypothetical terms called Dicta.  The courts have specifically denied such immunity to Vice President Spiro Agnew, Federal Judges, Governors, and legislators.We will expand on Judge Melcher’s ruling in more detail shortly.

Ky. Sup. Ct. will consider if police can lie to gain entry to home.

Friday, August 18th, 2006

The Courier-Journal in a feature story by Andy Wolfson reports that the Ky. Supreme Court will hear oral arguments on the issue of whether the police can lie to gain entry to a home.  In a McCracken County case, a detective told  Frederick Krause III, that the a small girl had said she had been sexually abused in his home and the officer wanted to check out the furniture and bedding.  This was a fabrication and the intent of the search was to look for drugs.  The officer found drugs and made the arrest.  This issue raises questions if consent can be voluntary when it is procured as the basis of a ruse. 

 Several prior decisions of the Ky. Supreme Court tend to predict that court will allow ruse to justify search.

Adcock v. Com., 967 S.W.2d 6 (Ky., 1998)
W]hen police officers execute a search warrant on a personal residence by conducting a successful ruse that results in the occupant voluntarily opening the door which is followed by the officers announcing their identity and purpose prior to entering the home, these actions are reasonable within the requirements of the Fourth Amendment.

        This Court granted discretionary review. Additional facts will be set forth as necessary in the course of the opinion.

        As noted by the Court of Appeals, RCr 9.78 provides the procedure for conducting hearings on suppression motions, as well as the standard for appellate review of the trial court’s determination. “If supported by substantial evidence the factual findings of the trial court shall be conclusive.” RCr 9.78. When the findings of fact are supported by substantial evidence, as we conclude they are herein, the question necessarily becomes, “whether the rule of law as applied to the established facts is or is not violated.” Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996) (citing Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19, 102 S.Ct. 1781, 1791, n. 19, 72 L.Ed.2d 66 (1982).

        Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the United States Supreme Court held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Id. at 933, 115 S.Ct. at 1918. The knock and announce rule has three purposes: (1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and (3) to protect people from unnecessary intrusion into their private activities. Id.

        However, “[t]hat is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Id. at 934, 115 S.Ct. at 1918. The Wilson court left “to the lower courts the task of determining the circumstances under which an unannounced

entry is reasonable under the Fourth Amendment.” Id. at 936, 115 S.Ct. at 1919.

        The Court has recognized that the knock and announce requirements could yield when exigent circumstances are present. “In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, —- – —-, 117 S.Ct. 1416, 1421-1422, 137 L.Ed.2d 615 (1997). The Court in Richards did note, however, that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.” Id.

        Appellant argues that a ruse, like a no-knock entry, may be employed only in the presence of exigent circumstances. Appellant concludes that since none existed in this case, police were bound by the knock and announce requirements. Thus, the issues before this Court are whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in this case, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule. Inasmuch as this jurisdiction has not addressed the knock and announce rule, we look to the federal court and other jurisdictions for guidance.

        A ruse is constitutionally distinguishable from a no-knock entry. State v. Moss, 172 Wis.2d 110, 492 N.W.2d 627 (1992), cert. denied, 507 U.S. 977, 113 S.Ct. 1428, 122 L.Ed.2d 796 (1993), overruled on other grounds by State v. Stevens, 181 Wis.2d 410, 511 N.W.2d 591 (1994). In Moss, officers employed a pizza delivery ruse virtually identical to this case. When the defendant opened the door, officers announced “police, search warrant.” As the defendant attempted to close the door, one officer placed his foot in the doorway to prevent the door from closing, and pushed his way in. In upholding the use of ruse to gain entry, the Wisconsin Supreme Court found that the police action did not constitute a no-knock entry because the officer did, in fact, announce his presence and purpose before entering the defendant’s residence. Id. 492 N.W.2d at 630. Furthermore, the court held that the use of the ruse to entice the defendant to open the door in the execution of a search warrant did not violate the Fourth Amendment or the knock and announce rule because “the reasons behind the rule were satisfied–there was no real likelihood of violence, no unwarranted intrusion on privacy, and no damage to the [defendant's residence].” Id. at 631; see also Wilson, supra, and Commonwealth v. Goggin, 412 Mass. 200, 587 N.E.2d 785 (1992).

        In fact, notwithstanding the presence of exigent circumstances, federal and state courts in interpreting either knock and announce statutes or the common law knock and announce rule are in general agreement that there is no constitutional impediment to the use of subterfuge. Entry obtained through the use of deception, accomplished without force, is not a “breaking” requiring officers to first announce their authority and purpose. United States v. Salter, 815 F.2d 1150 (7th Cir.1987); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir.1993); Hawaii v. Dixon, 83 Hawai’i 13, 924 P.2d 181 (1996); State v. Myers, 102 Wash.2d 548, 689 P.2d 38 (1984); Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982); State v. Iverson, 272 N.W.2d 1 (Iowa 1978).

        The trial court in this case relied on Salter, supra, in which an officer, posing as a hotel clerk, telephoned appellant’s hotel room and requested her to come to the front desk. When appellant opened the door, officers positioned outside of her hotel room prevented her from closing the door and immediately entered the room. The Seventh Circuit engaged in a statutory analysis and held that there was no “breaking” and thus 18 U.S.C. § 3109 1 was not implicated by entry through an open door. Since the occupant voluntarily opened the door, entry by ‘ruse’ was permissible. See also Contreras-Ceballos, supra (an officer’s use of force to keep open a door that was voluntarily opened in response to the officer’s ruse was not a “breaking” so as to implicate § 3109.)

        We find the recent case of Hawaii v. Dixon, supra, to be factually similar to the case at hand and quite instructive. In Dixon, officers employed a ruse to gain entry into a defendant’s hotel room. Three officers placed themselves on the sides of the defendant’s hotel room door while a hotel security guard approached and knocked on the door. The security guard informed the occupants that he was there to check the air-conditioning. When the hotel door opened, the officers “entered the room simultaneously, announcing ‘in an assertive tone of voice’ that they were the police and ordering [the defendant] to get down.” 924 P.2d at 183. A search of the room produced drugs and paraphernalia.


     The Hawaii Supreme Court held that the use of a ruse violated neither statutory law nor the Fourth Amendment because the purposes of the knock and announce rule were not frustrated. Id. at 182. The court first engaged in a discussion of statutory law from various jurisdictions and concluded that entry gained through the use of deception is permissible so long as force is not involved. Id. at 188. In other words, an entry accomplished without force is not a “breaking” within the meaning of the majority of state statutes, as well as 18 U.S.C. § 3109, and therefore does not implicate the knock and announce rule. “[T]he employment of a ruse to obtain the full opening of the [defendant's] door was not a “breaking.” And since the door was then wide open, the subsequent entry … did not involve a ‘breaking’ of the door.” Id. at 187. (quoting Dickey v. United States, 332 F.2d 773 (9th Cir.1964)).

       After analyzing the Wilson v. Arkansas, supra, standard and a number of opinions from other jurisdictions, the Dixon court further held that the use of a ruse to gain entry did not violate the defendant’s constitutional protections under the Fourth Amendment. Id. 924 P.2d at 189. The Court adopted the reasoning set forth by the Washington Supreme Court in State v. Myers, 102 Wash.2d 548, 689 P.2d 38, 42 (1984):

        The guiding factor in determining whether a ruse entry, to execute a search warrant, constitutes a “breaking” under the Fourth Amendment should be whether the tactic frustrates the purposes of the “knock and announce” rule. Those purposes are: (1) reduction of potential violence to both occupants and police resulting from an unannounced entry, (2) prevention of unnecessary property damage; and (3) protection of an occupant’s right to privacy.

        It appears obvious that a ruse entry, especially when the deception is not realized until after the entry has been accomplished, actually promotes both the purpose of preventing violent confrontation between the officer and the surprised occupant and that of preventing unnecessary property damage. (citations omitted)

        Accordingly, the Dixon court concluded that “[w]here the purposes of the knock and announce rule are not frustrated, and may, indeed, be furthered by the use of a ruse to obtain entry to execute a valid warrant, the tactic is not constitutionally unreasonable and, therefore, not violative of fourth amendment protections.” Dixon, supra at 191.

        Appellant further argues that even if this Court concludes that police may utilize a ruse to gain entry absent exigent circumstances, if such is unsuccessful, the police must still follow the knock and announce rule. “If the ruse employed is unsuccessful and the officers did not gain peaceful entry, then the ‘knock and wait’ rule comes into play.” State v. Ellis, 21 Wash.App. 123, 584 P.2d 428, 430 (1978).

        The flaw in Appellant’s argument is that she believes because the disguised officer

did not gain actual entry into her residence under the guise of a pizza delivery person, that the police did not gain peaceful entry and thus the ruse failed. As such, the officers were required to follow the requirements of the knock and announce rule. We disagree. The ruse was successful because it enticed Appellant to voluntarily open the door in the first place. At that point, the necessity for the ruse evaporated. Officers gained peaceful entry through the open door without having to use any force. As previously stated, such does not constitute a breaking or forceful entry. Although officers may have preferred to have gained access under the pretense of the delivery ruse rather than having to announce their identity, the ruse still accomplished its intended purpose, namely, to prevent Appellant from disposing of the drugs prior to the officers gaining entry into her residence.

        Even if the ruse in this case was unsuccessful, the trial court found that there were sufficient facts to conclude that the officers complied with the requirements of the knock and announce rule. The trial court specifically made the finding that the officers announced their presence prior to entering Appellant’s residence. Moreover, we reject Appellant’s proposition that the officers were required to wait until she specifically denied them access. Waiting would have served none of the purposes of the rule.

Because an occupant, in the face of a valid search warrant, has no right to refuse admission to police, no interest served by the knock and announce rule would be furthered by requiring police officers to stand at an open doorway for a few seconds in order to determine whether the occupant means to admit them.

        State v. Richards, 87 Wash.App. 285, 941 P.2d 710, 713 (1997); United States v. Kemp, 12 F.3d 1140 (D.C.Cir.1994).

        Contrary to Appellant’s assertion, we find nothing in the language of Wilson v. Arkansas, supra, to be inconsistent with the Dixon court’s analysis or our application thereof. The United States Supreme Court, while reiterating the knock and announce rule in the context of the Fourth Amendment, clearly has not foreclosed the use of police deception to gain entry into a residence for the purpose of executing a valid search warrant. Indeed, we agree with the decisions cited herein, that such a tactic, so long as it is accomplished without the use of force, promotes the underlying purposes of the knock and announce rule and is constitutional and reasonable under the Fourth Amendment.

        Accordingly, we hereby affirm the decision of the Court of Appeals upholding the trial court’s order denying Appellant’s suppression motion.

Riley v. Commonwealth of Kentucky, 120 S.W.3d 622 (Ky., 2003)
  Appellant’s “stalking horse” defense is premised upon his assertion that “Operation Night Vision” was a subterfuge to enable other police agencies to conduct unconstitutional searches of parolees’ residences under the guise of a parole officer’s “routine visit.” Prior to the decision in Knights, supra, a majority of federal courts had, indeed, held that a search was unlawful when the probation or parole officer was acting as a “stalking horse” for a police investigation, i.e., when the officer’s visit was but a ruse for an entry and search by the accompanying police officers. See United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994) (“[I]t is impermissible for a probation search to serve as subterfuge for a criminal investigation.”); United States v. Grimes, 225 F.3d 254, 259 (2nd Cir. 2000); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.

1997); United States v. Oolev, 116 F.3d 370, 372 (9th Cir. 1997); United States v. McCarty, 82 F.3d 943, 947 (10th Cir. 1996); United States v. Coleman, 22 F.3d 126, 129 (7th Cir. 1994); Shea v. Smith, 966 F.2d 127, 132 (3rd Cir. 1992). However, in the process of reversing the suppression of evidence seized in a probation search that was for “investigatory,” as opposed to “probationary,” purposes, Knights eliminated the “stalking horse” defense.

        Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.

        Knights, supra, at 122, 122 S.Ct. at 593 (citations and quotations omitted). The Ninth Circuit Court of Appeals has subsequently held United States v. Stokes, 292 F.3d 964 (9th Cir. 2002), that, in light of Knights, “our circuit’s line of cases holding searches of probationers invalid on the ground that they were subterfuges for criminal investigations is, in that respect, no longer good law.” Id. at 967 (overruling Ooley, supra).

        We agree that Knights eliminated the so-called “stalking horse” defense. Thus, we need not engage in a subjective examination of the official purpose behind this particular “Operation Night Vision” visit. We simply hold that the search of the remainder of Appellant’s mobile home did not violate his constitutional right to be secure against unreasonable searches and seizures.

Article on Courier-Journal:

Ky. court will consider if police can lie Ruse let detective gain entry to home

By Andrew Wolfson  – The Courier-Journal

When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he’d heard drugs were being sold, he knew the occupants probably wouldn’t consent to a search if he said he was looking for narcotics.

So he lied.

He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave.

Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl “Fritz” Krause III.

“I was outraged,” recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. “You would think you could trust authorities to tell you the truth.”

Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia — but on the condition he could challenge the legality of the search.

Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant’s consent to a search can ever be “voluntary” — as required for a search without a warrant — when it is the product of a police officer’s deceit and misrepresentation.

Courts have long held that police may try to trick suspects during interrogations — by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.

But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive.

“Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself,” said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures.

Ruse raises questions
In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.

But Clymer said the ruse raised “serious constitutional questions” and was “not an appropriate police practice.”

Dissenting from a 2-1 decision affirming Clymer’s decision, Chief Court of Appeals Judge Sara Combs called the deception “a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures.”

Manar, who acknowledged in court that he made up the story to get into Krause’s home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn’t comment on the court case, citing bureau policy.

A state police spokesman, Sgt. Phil Crumpton, said the department also couldn’t comment, because of the appeal.

But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that “ruses are a sometimes necessary element of police work.”

In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter — and a self-addressed, stamped envelope — from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample.

“You kind of wince a bit and it’s not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes,” said Louisville Metro Louisville Police Detective Larry Duncan. “I refer to it as a little white lie.”

But police commanders say deception can backfire. “If you tell a suspect you’ve got his prints and he knows he wore gloves” when committing the crime, “he knows you’re lying, and you lose any rapport you’ve build up with him” said metro police Capt. Donald Burbrink.

Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking — because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible.

Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don’t do it.

Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given “freely and voluntarily.”

FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, “our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house.”

Searching for drugs
The events leading to Krause’s conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause’s roommate, Joe Yamada.

Manar knew he didn’t have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar — he wasn’t sure which — that a girl claimed she had been assaulted and that the assault took place at their house.

“I thought that would ease his mind a little more than confronting him with the drugs,” Manar said.

Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room.

Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn’t join the appeal, was placed on probation for three years, and Krause for 2½.

Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because “the right to be secure in your own home has gone out the window.”

His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians.

“If the court upholds this decision,” he said, “the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there.”

Reporter Andrew Wolfson can be reached at (502) 582-7189.




Courier-Journal Editorial blasts Fletcher, Justices Lambert, Roach and McAnulty

Friday, August 18th, 2006

The trashing of the state Supreme Court’s reputation is just about complete, thanks to Gov. Ernie Fletcher.
He’s the one who put his own young legal aide, John Roach, on the high court, with no convincing justification other than cronyism. Mr. Roach, who was 38 at the time and had no judicial experience, would not have appeared on any defensible list of the most appropriate candidates.
Chief Justice Joseph Lambert defended the appointment, even though the decisive entry on Mr. Roach’s résumé was his connection to the Governor. A month later, Mr. Lambert luxuriated in irony by naming a distinguished panel to encourage fairness and ethical behavior in this year’s judicial elections.
Now we find the same Mr. Roach using a low-down, dirty poll to campaign for a full term. His handlers at first wouldn’t even admit to the Lexington Herald-Leader that they had conducted the survey. Later, they called it “standard” stuff, while still refusing to show the public a copy or even name the polling firm.
A number of angry voters say they were asked in the phone survey such slimy questions as whether it matters that Mr. Roach’s opponent is “married with no children,” is “soft on crime” and “feels that judges can create laws if the legislature has failed to act.”
One question raised — that is to say, exploited — the hot-button issue of giving health care benefits to domestic partners of public university employees — even though that emotional matter may come before the court.
Mr. Roach has thus imported into judicial campaigning the sleaziest tactics of partisan politics that Justice Lambert promised to keep out. But their buddy, the Governor, put him where he could do it.
It was the Fletcher hiring scandal that prompted Justice Lambert to shame himself, and embarrass the court, by adding a gratuitous footnote in an unrelated case, helpfully explaining how the Governor could elude criminal charges in the merit hiring scandal. A lower court judge, invoking a similar theory, did put on hold the Governor’s case until he is impeached or out of office. Meanwhile, effective governance is on hold, too.
Then there’s the latest Fletcher court appointee, William McAnulty, who also is running for a full Supreme Court term and says he won’t recuse himself in matters involving the Governor if elected.
At his investiture, Mr. McAnulty repeated that he had “no regret” about asking Gov. Fletcher for the job and taking it. He could have waited and earned it at the ballot box, but he said becoming the first African-American justice was so important that “I don’t have time to wait.”
It’s Kentucky that waits, for someone who will promise to clean up Frankfort, and mean it.
Note:  Justice Roach is opposed in the Nov. election by Judge Mary Noble of Lexington. Justice McAnulty is opposed in the Nov. election by Judge Ann Shake.

Michigan Judge rules Bush Administration wiretap surveillance procedures unconstitutional. Former prosecutor says Judge was wrong.

Thursday, August 17th, 2006

This ruling by U.S. District Court Judge Diggs, of Michigan, will likely be appealed to the 6th. Circuit in Cincinnati. 

To read the full text of this opinion go to:
DETROIT (Aug. 17) – A federal judge ruled Thursday that the government’s warrantless surveillance program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency’s program, which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution.

“Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution,” Taylor wrote in her 43-page opinion.

The Justice Department appealed the ruling and issued a statement calling the program “an essential tool for the intelligence community in the war on terror.”

White House press secretary Tony Snow said the Bush administration “couldn’t disagree more with this ruling.”

“United States intelligence officials have confirmed that the program has helped stop terrorist attacks and saved American lives,” he said. “The program is carefully administered and only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected al-Qaida or affiliated terrorist.”

The ruling won’t take immediate effect so Taylor can hear a Justice request for a stay pending its appeal. A hearing on the motion was set for Sept. 7, Snow said.

The American Civil Liberties Union filed the lawsuit on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, monitoring phone calls and e-mails between people in the U.S. and people in other countries when a link to terrorism is suspected.

  The government argued that the program is well within the president’s authority, but said proving that would require revealing state secrets.

The ACLU said the state-secrets argument was irrelevant because the Bush administration already had publicly revealed enough information about the program for Taylor to rule.

“At its core, today’s ruling addresses the abuse of presidential power and reaffirms the system of checks and balances that’s necessary to our democracy,” ACLU executive director Anthony Romero told reporters after the ruling.

He called the opinion “another nail in the coffin in the Bush administration’s legal strategy in the war on terror.”

While siding with the ACLU on the surveillance issue, Taylor dismissed a separate claim by the group over NSA data-mining of phone records. She said not enough had been publicly revealed about that program to support the claim and further litigation would jeopardize state secrets.

The lawsuit alleged that the NSA “uses artificial intelligence aids to search for keywords and analyze patterns in millions of communications at any given time.” Multiple lawsuits have been filed related to data-mining against phone companies, accusing them of improperly turning over records to the NSA.

However, the data-mining was only a small part of the Detroit suit, said Ann Beeson, the ACLU’s associate legal director and the lead attorney on the case.

Beeson predicted the government would appeal the wiretapping ruling and request that the order to halt the program be postponed while the case makes its way through the system. She said the ACLU had not yet decided whether it would oppose such a postponement.

A contrary view:

Former CIA agent belittles Judge Diggs decision.

By Bryan Cunningham

The Honorable Anna Diggs-Taylor probably means well. The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications. She probably feels in her heart the program is wrong, and undoubtedly hears the footsteps of the federal judicial panel moving towards taking this case away from her and consolidating it with others.
We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.

Much will be said about this opinion in the coming days. I’ll start with this: I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm. Why not? Herewith, a start at a very long list of what’s wrong with Judge Taylor’s opinion.

Process Fouls. When you sue your plumber over a disputed $50 invoice, before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps before issuing one of the most sweeping wartime legal rulings in our nation’s history. Experts on both sides agree it is impossible to decide the crucial Fourth and First Amendment issues in this case without detailed, factual knowledge of precisely what the government is doing (see, e.g., the brief I filed with the Washington Legal Foundation, at, and the excellent testimony of David Kris, at Judge Taylor apparently needs no more facts than what she reads in the papers.

Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an “exception� to FISA’s warrant requirements. She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops. These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings.

More worrisome still are the judge’s breathtaking mistakes in analyzing the Fourth and First Amendments—errors that would earn our first-year law student an “F.� Here’s one of several examples: The judge asserts that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.� She cites no legal authority whatsoever for this colossal misstatement of the law, because none exists. Instead, there are numerous situations where our courts have found no prior warrant is required, so long as a search is “reasonable.� Fatal to her position is the very Supreme Court case she herself cites. This landmark 1972 electronic-surveillance decision, the Keith case, makes clear that, though it establishes a warrant requirement for purely domestic security cases (decidedly not what the TSP is, raising the alarming possibility the judge may think the TSP is a “domestic� program), the Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government’s legitimate needs, such as protecting us from attack, against other constitutional interests.

Lest there be any doubt as to whether Keith supported Judge Taylor’s view about the warrant requirement for communications with overseas terrorist groups, the Keith court stated that “the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.�

While Keith at least left open the question, a post-FISA case, also cited by Judge Taylor herself (In re Falvey), could not have more clearly dispensed with her claimed warrant requirement: “When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.�

Apparently Judge Taylor failed to read that portion of the Falvey opinion. She makes similarly striking mistakes on the issues of standing and separation-of-powers. Which brings us to the heart of the problem with the judge’s missive.

Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a court’s attention legal authority contrary to one’s position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylor’s opinion.

Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn’t actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here’s what it said (in 2002): “[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.’

Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-’80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England.

Selective Reading Redux. The judge discusses at length Justice Jackson’s concurring opinion in Youngstown Sheet and Tube, without bothering to mention:

—that Justice Jackson himself, in that very opinion, disavowed the application of the opinion beyond that case’s primarily domestic context (seizure of U.S. steel mills in the face of a union strike);

—that our courts long after Youngstown emphasized its limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP; or

—most importantly, the entire line of Supreme Court and other decisions, most famously including Curtiss-Wright Export, cited many times since Youngstown, making clear the president’s constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude.

Lawyers and judges are free to argue that contrary authority does not control a particular decision. They are not free ethically to disregard the vast majority of cases rejecting their position, selectively citing the single case arguably supporting them.

Trivial Pursuit. Perhaps most disturbing about the judge’s opinion is the trivial way it treats the Fourth and First Amendments to our Constitution. In landmark cases balancing wartime needs with cherished principles in the Bill of Rights, our great judges and justices have painstakingly analyzed all applicable authority, soberly balancing our crucial national interests and values. Judge Taylor spends a total of three double-spaced pages addressing the Fourth Amendment and little more than two addressing the First Amendment. Her reasoning, to the extent one can follow it, is little more than one would find in watching a surreal “Schoolhouse Rock� episode. The Fourth Amendment prohibits unreasonable searches. All searches without warrants are unreasonable (which, as noted above, is flatly wrong). Therefore, with no case support cited, Judge Taylor finds the TSP unconstitutional. The First Amendment protects free speech, which, defying the dictionary meaning of the word, she asserts the TSP “regulates.� FISA prohibits targeting persons for surveillance solely for activities protected by the First Amendment (FISA, of course, being a statute, not a constitutional provision, and the administration having stated publicly they do not target individuals on that basis). Therefore, says Her Honor, the TSP is unconstitutional.

Such trivial (if not incomprehensible) legal analysis would be unacceptable in our $50 plumbing-bill case. Using it to justify shutting down a program protecting us from terrorist attack in war is tantamount to an abrogation of the judge’s oath to support and defend the Constitution. Though unlikely based on what has been publicly reported, it is possible that a court armed with all the facts could conclude that the TSP runs afoul of the First or Fourth Amendments. It is not possible to decide that based on press reports and platitudes.

Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.

Whatever Judge Taylor’s motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the “9/11 Part 2� British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.

As Judge Taylor’s new favorite justice, Robert Jackson himself, warned, the courts should not “convert the constitutional Bill of Rights into a suicide pact.� I will put my daughters to bed tonight confident that the Court of Appeals and our Supreme Court will not allow Judge Taylor’s giant step in that direction to stand.

— Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan & Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.


Court throws out sex harassment suit due to Plaintiffs public statements about defendants prior expunged criminal conviction.

Thursday, August 17th, 2006

A trial judge properly threw out a sexual harassment suit in which the alleged victim and her attorneys repeatedly spoke publicly about inadmissible evidence, the state Supreme Court ruled.

Aug. 16, 2006  ·   The First Amendment does not protect a six-year sexual harassment case from dismissal because the plaintiff and her attorneys ignored a judge’s warning not to publicize an expunged criminal conviction, violating state rules of professional conduct, the Michigan Supreme Court has ruled, reversing an appellate court decision.

“Plaintiff’s and her counsel’s numerous public references to [the defendant's] inadmissible, expunged indecent exposure conviction, despite a court order excluding such evidence, were obviously intended to prejudice potential jurors,” Justice Maura Corrigan wrote for the four-judge majority July 31.

Justine Maldonado sued Ford Motor Co. in June 2000, alleging that her supervisor, Daniel Bennett, sexually harassed her. At Ford’s request, Wayne Circuit Court Judge Kathleen Macdonald agreed to exclude evidence of Bennett’s 1995 indecent exposure conviction.

In September 2001, however, Maldonado’s lawyers issued a press release that mentioned the conviction, which was subsequently reported by The Associated Press, the Detroit Free Press, WDIV-TV and other news outlets.

In a separate proceeding that November, Bennett’s indecent exposure conviction was legally removed — or expunged — from the public record.

Michigan law makes it a crime to use or tell others about an expunged conviction.

In light of the news coverage, Wayne Circuit Court JudgeWilliam Giovan warned that he would dismiss the case if any attorneys violated their ethical obligation to keep quiet about anything likely to materially prejudice the case and impair the court’s ability to empanel a fair jury.

Despite this warning, Maldonado admitted in her deposition that she would use any opportunity to discuss Bennett’s indecent exposure conviction and, with her lawyers, demonstrated outside of Ford headquarters, distributing leaflets about Bennett’s expunged conviction.

In August 2002, Judge Giovan dismissed Maldonado’s case after Bennett and Ford argued that she and her attorneys were trying to taint the jury pool.

An appeals court concluded that Maldonado’s case had been improperly dismissed in violation of her First Amendment rights, but four members of the Michigan Supreme Court — including Chief Justice Clifford Taylor, Stephen Markman, and Robert Young Jr. — disagreed.

Relying on a 1991 ruling by the U.S. Supreme Court, Justice Corrigan rejected the appeals court’s reasoning that dismissal was improper unless the jury was actually tainted. Not only did the U.S. Supreme Court not require trial courts to find “actual taint” when determining whether a trial court’s limitation is needed to protect potential jurors from prejudice, but that standard is impossible to apply, especially where nearly three years had passed.

This restriction on Maldonado and her attorney’s speech — preventing all public references to the expunged conviction — was not so broad as to violate the First Amendment, Justice Corrigan wrote for the majority. “This limitation on plaintiff’s and her counsel’s speech only applied to speech that was substantially likely to have a materially prejudicial effect and that, therefore, violated the rules of ethics. It did not prohibit plaintiff and her counsel from speaking about sexual harassment or the general nature of plaintiff’s case,” she wrote.

Justices Elizabeth Weaver, Marilyn Kelly, and Michael Cavanagh dissented in two separate opinions.

ACLU of Michigan Legal Director Michael Steinberg told The Associated Press that “the highest court of this state [is] punishing individuals for speaking about matters of great public concern.”

Throwing out an entire case because of a plaintiff’s out-of-court comments is “extraordinary,”‘ attorney Mark Granzotto told the wire service.

The case will likely be appealed to the U.S. Supreme Court, AP reported.

(Maldonado v. Ford Motor Co., Plaintiff’s Counsel: George B. Washington, Scheff & Washington, Detroit, Mich.)



The Shelby County Mutiny: Where does Judge Stewart go to get his good name back?

Wednesday, August 16th, 2006

By Stan Billingsley, Senior Editor,

Raymond Donovan who became Secretary of Labor in the first Ronald Reagan term, was subjected to a vicious smear campaign and prosecution which continued for years. After he was exonerated, Donovan made the famous statement, “Where do I go to get my good name back?”  We can imagine that former Shelby County Circuit Judge Bill Stewart and his wife Sarah Dutton are asking the same question.

       For over two years retired Shelby County Circuit Judge William Stewart has been the focus of a mutiny by Shelby County officials in an attempt to discredit his reputation, to remove him from his judicial office, to deny him an opportunity to participate in the Senior Judge’s program where he would have been able to enhance his retirement benefits, and to convict and imprison him and his wife Sarah. 

      After almost two years living under the dark cloud of pending criminal charges, the Commonwealth dismissed all charges against Judge Stewart.  On August 1st., Stewart and his wife Sarah Dutton appeared in Franklin Circuit Court before Special Judge John W. Potter.  Sarah Dutton accepted a plea agreement where all pending charges against her were dismissed, and she entered an Alford Plea (under which she did not admit her guilt) to two misdemeanor offenses.  She was sentenced to 12 months on one count and 90 days on the second count, with the sentence probated for two years.  There was no fine or restitution ordered.  She had not previously been charged with the two misdemeanor offenses in the plea agreement.

  In order to obtain the reduced charges on his wife, and the dismissal of all charges against him, Judge Stewart agreed to withdraw his application for Senior Judge status, and to agree not to serve as a judge in the future.  He had already retired from office in 2005.

       Stewart was notified in July of 2004 by the Judicial Conduct Commission that an anonymous complaint had been filed against him. While the anonymous complaint claimed such violations as taking a vacation, and spending nights in his fathers home in Louisville to care for him during his final illness.

The only violation that survived was a charge of failing to recuse himself when the person hired by AOC to clean his office appeared before him on a child support matter. No matter that her employment was disclosed on the record to all parties and no objections were entered. No matter that there is no specific Judicial Ethics Rule that forbids a judge from hearing a case of another employee of AOC.  Stewart,  prior to a formal hearing, agreed to receive a public reprimand from the Judicial Conduct Commission for failing to recuse himself from the case. 

The public reprimand did not remove Stewart from office, did not impose a fine on him, and did not suspend him.  He remained eligible to apply for entry into the Senior Status Judges program, which would have committed him to serve as a special judge for 600 days over five years, and to receive a substantial enhancement in his retirement benefits.

    After termination of the hearing before the Judicial Conduct Commission, the efforts to discredit him didn’t cease. In fact the effort then evolved into a criminal investigation not only of Stewart, but of his wife Sarah, who had been employed in his judicial office as Secretary.  He says he made every effort to cooperate with the Judicial Conduct Commission and the Commonwealth’s investigation in the belief that being innocent he had nothing to worry about.  However the longer the investigation lingered, the more hostile it became towards the Stewarts.  He says that virtually everything he said was ignored or disbelieved by JCC and by the Commonwealth’s investigators while the allegations of anonymous accusers was taken as gospel truth.

     Stewart says that at the “informal� hearing before the Conduct Commission that one member of the Commission cut off his statements and accused him of lying.  He felt at the time that he was already found guilty prior to a formal hearing at which he could present evidence in his own defense. The so called “informal hearing� was allowed by the JCC to become highly confrontational.

     The Attorney General has created a division in the Attorney General’s Office known as the KBI, Kentucky Bureau of Investigation. What better way to kick off one of their first investigations than to try to nail a judge who had nineteen years of outstanding service. The KBI was requested to pursue an investigation of Judge Stewart by the actions of Shelby Commonwealth Attorney Fielding Ballard who had asked for the assistance of KSP in investigating Stewart. Ballard did not disclose to the KSP that he was one of the five authors of an anonymous complaint against Stewart filed with the Judicial Conduct Commission.  On their web site, the KBI publicizes their self-appointed objective of being a watchdog of the judiciary.

       The investigating KSP Detective could not get the Commonwealth Attorney for Franklin County, Larry Franklin, to prosecute the action, so he went to the Attorney General’s office, and they jumped on the case surely aware that it would grab headlines for their Kentucky Bureau of Investigation (KBI).  The refusal of the Franklin County Commonwealth Attorney to bring this prosecution was a warning sign ignored by the Attorney General’s office.  Detective Martin who started the investigation presumably at the request of Commonwealth Attorney Ballard Fielding, later was identified by the Commonwealth as working with the KBI.  Martin attended the JCC hearing.

       The Attorney General’s office assigned Scott Crawford-Sutherland as the special prosecutor. He took his case against the Stewarts before a grand jury.  Stewart and his wife were indicted by the Franklin County Grand Jury on a number of criminal counts relating to his service as Circuit Judge and his wife’s alleged forging work-time records which allegedly claimed she claimed pay for more hours than she actually worked.  She was also charged with two Class C felonies (each having a penalty of imprisonment of  up to 20 years), for allegedly downloading  her husbands office e-mails at his direction.   It later came out via an admission by AOC that there was no forgery, and no duty for Mrs. Stewart or Judge Stewart to submit weekly time records. One of the charges sought to convict Judge Stewart for being responsible for the time records sent to AOC. (See footnotes.)

      The Stewarts both asserted their innocence to the original charges, and demanded  jury trials. Their joint jury trial ended with a mistrial with the jury voting 10 to 2 for acquittal. A unanimous verdict is required to conclude a criminal trial. The Commonwealth ignored another warning sign and announced that they would retry Stewart in a second trial.

     The Stewarts both maintain their innocence of all criminal acts. Why, one might ask, would Sarah agree to plea to the misdemeanor charges? Wouldn’t a truly innocent  person never agree to plead to a charge they had not committed?  One may conclude what they may, but faced with the burdens of the prosecution and the prospect of having to raise another $25,000 to $30,000 for their pending trials, and having to bear the burden of a misdemeanor conviction with no penalty save for non-reporting probation, the decision to enter a plea becomes highly rational.  Unfortunately, the price of proving your innocence may be too expensive.

     On August 1st.  Sarah decided to accept the plea bargain which resulted in dismissal of all charges for which she had been indicted.  If she had rejected the greatly reduced plea agreement offered by the Commonwealth, she was told that both she and her husband would be tried on the original charges placed against them.

     Under the original charges, if convicted, she could have been sentenced to prison for up to twenty years. Her husband could have been sentenced for up to five years if convicted. The Commonwealth also threatened to seek cancellation of his retirement benefits earned over l9 years of judicial service.  The plea agreement offer by the Commonwealth ended all further prosecution of the Stewarts.

     Stewart and his wife, had spent and become indebted for $120,000 in legal fees, trial preparation expenses and expert witness fees.  Stewart even had to spend $13,000 to obtain a copy of his own office telephone records and e-mails from the Administrative Office of the Courts.

     Stewart says that Jim Deckard, then Legal Counsel for Chief Justice Joseph Lambert, and AOC, fought him tooth and nail in trying to keep him from even obtaining a copy of his own office telephone records and only did so after the Court ordered AOC to deliver the records Stewart needed for his defense.  These records were found by the court to be needed for Stewarts defense and AOC was ordered to deliver the records, but allowed to charge for their copying. AOC made special arrangements to transfer Stewart’s law clerk, Carolyn Peterson to a position in the Shelby Circuit Clerk’s office.  Peterson was the star witness against the Stewarts.  The anonymous complaint contained a statement that Peterson was overworked and that she had to so a lot of her bosses work because the judge was frequently out of the office.  (Note: his judicial district covers three counties and the Judge must split his time among the three counties.)  This statement in the anonymous complaint implicates Peterson in the mutiny of her own boss.

         The Stewarts had to sell their home and farm in Shelby County to finance their defense at the first trial. The jury reportedly told the trial judge that “they couldn’t come to a consensus since Stewart had not proven his innocence.�  Stewart had requested that the trial judge reinstruct the jury and explain to them that he was not required to prove his innocence under our system of law, but the Trial Judge John W. Potter, did not reinstruct the jury and later declared a mistrial.  Judge Potter later met with the discharged jury in private.

     In light of the great financial outlay involved in the first trial, and faced with having to sell their last piece of real estate and go further into debt, they finally succumbed to the plea offer. However Sarah only agreed to enter Alford pleas to the misdemeanor charges. (an Alford plea is a plea where the defendant does not admit guilt, but admits in essence that there is enough evidence for a conviction). 

 Sarah  Duttont, at the time she agreed to the plea agreement, was still in ill health and was suffering from a severe case of shingles on her head and face which were aggravated by the stress of the prosecution.  She has been told that the condition threatens her sight.

  Judge Stewart said the stress of the charges and the impending trial at which she would face two Class C felony charges was too much for her to contemplate.  Faced with the burden of a second trial, and the potential expenditure of another $25,000 to $30,000 in legal fees and trial preparation expenses, and the prospect of going further into debt, she accepted the offer.  At the plea hearing, she informed the judge, “I did nothing wrong.�

     The Commonwealth failed to prove the original charges against either of the Stewarts, but they did succeed in bringing them both to the door of financial ruin, and they damaged their reputations to a degree that only the Stewarts can appreciate. Stewart recalls an incident where he ran into a member of the Supreme Court and the Justice refused to even speak to him.

     The Commonwealth would not admit defeat. Instead of admitting that they had a weak case against the Stewarts, and only convinced two of twelve jurors in the first trial, the Commonwealth held the threat of another trial and six more months of stress and financial ruin over their heads.  The price for the Stewarts going further in their quest for justice and complete exoneration was financial ruin. Is there any wonder she accepted the plea bargain?  Her conviction says as much about the intimidating power of the criminal justice system as it does about her possible guilt.  The Commonwealth would have looked far better if they just cleanly dismissed all charges.

    The result of this prosecution is the permanent damage done to the Stewarts, but the damage goes much farther.  This prosecution stands as an example to other Judges as to what can happen to them if they dare to rule against the Commonwealth in bond and probation decisions.  This prosecution sends a signal to all judges, that AOC will not assist them in anyway. This prosecution will send a message to prosecutors that the Judge is a sitting duck…and any attempt to slander him can be swept under the rug.

How did a respected Judge find himself at the defendant’s table?

      In 2004 an anonymous complaint was filed with Judicial Conduct Commission. The Commission reviews complaints filed against judges, which allege improper conduct.  The Commission has the jurisdiction to fine, suspend or remove judges from office.

     The complaint claimed to be authored by unnamed citizens of Shelby, Anderson and Spencer counties. All of the participants in the mutiny were residents of Shelby County. No one from Anderson or Spencer counties were involved in writing or delivering the anonymous complaint.  The authors wrote that if something wasn’t done about Stewart, there would be “blood in the streets�. 

    The unnamed authors said that Stewart was too easy on Hispanics and blacks, and took care of the “scum� of society. In the long laundry list of alleged wrongs, which focused mainly on disagreements over his discretional acts, he was blamed for having too heavy of a caseload on motion days, for being late to court on occasion, and for taking deferring trials to take a vacation.   It was alleged that his wife didn’t come to the judges’ office, where she was employed, as many days as she reported on the AOC weekly time sheet.  Stewart says his wife was only employed half time and she was assigned to come in when the other workers were not scheduled. A number of other judges have been granted permission to employ their wives part time.  There is no AOC regulation that prevents a secretary from taking work home to complete.  Judge Stewart was accused of theft charges for signing the quarterly pay vouchers.

    It was claimed that Stewart was no longer a resident of his district in that he had moved to Jefferson County.  Stewart testified that he was for a time, sleeping at his father’s home to care for his 90 year old father who then blind, suicidal, and suffering from Alzheimer’s disease. During his alleged residence in Jefferson County, he continued to own property in Shelby County, remained registered to vote in Shelby County, and  reported for work as his job required. His father has since died.

      It was later revealed that the anonymous complaint was the work of other officials in Shelby County. The Attorney General’s office in a letter to Stewart’s attorney listed the authors of the anonymous complaint:

“Fielding Ballard, Commonwealth’s Attorney for the 53rd. Circuit,
Chuck Hickman, former Shelbyville County Attorney, now Circuit Judge in Stewart’s old position, Hart Megibben, former Assistant Shelby(ville) (sic)  County Attorney (now Shelby County Attorney),
Judge Mike Harrod, Shelby County District Court Judge.�

The meeting to discuss the plans for the anonymous complaint was held in Judge Harrod’s office.

    The removal of Judge Stewart resulted in the advancement of Hickman to Circuit Judge and Megibben to County Attorney.  Stewart says Judge Harrod coveted the Circuit Judge’s position, but was beat out by Chuck Hickman.  Harrod did not file to retain his position as District Judge.  The recovered e-mails disclosed plans by others to oppose Harrod if he sought re-election.  Stewart says Harrod was angry at him because he had overruled several decisions made by Harrod.  Stewart, as Circuit Judge, was responsible for hearing appeals from District Court.  

     Stewart should not have been surprised that trouble was in the works for him for he had already been warned that trouble was coming.  In 2003, the Administrative Office of the Courts (AOC) employed a worker by the name of Joe Gray. Gray was accused in the press of approaching three judges and apparently attempting to influence the judges in their decisions in three different cases. (See Courier-Journal article and editorial below.) 

   One of the judges confronted by Gray was Judge Stewart. Stewart was justifiably insulted by the blatant request that he fix a case pending before him, and made a disclosure on the record of the approach by Gray, and then forwarded a report of the incident to the Chief Justice’s office.  The newspapers picked up on Gray’s improper behavior and wrote a number of articles about the situation.  As a result Gray was apparently discharged from his job at AOC.  No prosecution of Gray was instigated, and the matter seems to have dropped from view.  Stewart says he received word that he would pay for having been a whistleblower.

    In the January 2004 Courier-Journal article regarding Stewart being upset with Joe Gray’s approach to him about the pending case, Stewart was quoted as saying that  his request to AOC for funding for a law clerk for his office was turned down. At that time many judges had been assigned law clerks and Stewart’s case load was the third heaviest case load for Circuit Judges in the state.  He ascribed that denial of funding to his whistleblowing. (See text of Courier Journal article in Commentary below.)

     Stewart’s preparation for his defense turned up evidence of many e-mails from his law clerk Carolyn Peterson and Judge Mike Harrod. Stewart bases his belief on a Harrod–Gray connection largely due to a statement made by Judge Harrod in a statement to the Judicial Conduct Commission which was released to Stewart. In the statement Harrod allegedly said that Stewart shouldn’t have crossed Gray. Gray has denied any involvement with such a plan against Stewart.

   During his trial preparation Stewart discovered that the hard drive on his office computer had been “wiped clean�.  All of his files, forms, and case information that had been stored on his computer were missing.  In order to try to restore information he needed for his defense, he employed a forensic expert who discovered a substantial portion of the files and restored them. Stewart says the restored hard drive contained records of  numerous e-mails between his clerk Carolyn Patterson, and Judge Michael Harrod his accuser.

   Stewart says that he was not computer literate at the time, and rarely used e-mail or accessed his office computer.  Any one wishing to send an e-mail to his office sent it to an e-mail address maintained by his clerk. Both he and his clerk had agreed to use this one e-mail account for court related communications.  Stewart says he frequently advised attorneys on the record that any e-mails to his office should be sent to that e-mail address.

    When Stewart first discovered the missing data from the hard drive of his computer, shortly after his clerk resigned unexpectedly from her job on Aug. 19, 2004. Later he  noticed that the office e-mail account had also been removed. 

    Sometime around Sept. 1, 2004 Stewart came into his office and found a Gregory Harrod working on his computer.    Stewart says he only met Gregory Harrod on this one occasion. Stewart says that Gregory Harrod said he was just stopping by to check his computer and see that everything was working alright.  Stewart was surprised as he had not heard of any problems with his computer at the time. 

Gregory Harrod now denies ever having been in Stewart’s office. AOC has told Stewart that they have reviewed Gregory Harrod’s time sheets and he had never been sent to Stewart’s office by AOC, and it was not in his job description to visit Judge’s offices to maintain their computers.  A few months later after this incident that Stewart discovered that his hard drive had been cleaned out thereby hiding the e-mail messages between his former clerk and Judge Michael Harrod. Copies of a large portion of the files which had been deleted from Stewart’s computer were discovered in an archived area of the computer by Stewart’s forensic expert who was hired to reconstruct the data that had been removed. 

      Stewart says the recovered e-mails detailed a  relationship between Judge Michael Harrod and Stewart’s former clerk. The e-mails also revealed discussions by Judge Harrod with Carolyn Peterson in which Harrod was informed the Judge’s Clerk about persons who were scheduled to appear before Judge Stewart and apparently suggesting that she speak favorable of these individuals to Judge Stewart prior to his hearing of their cases.  Stewart suspects that Gregory Harrod came to his office to delete the personal communications between Judge Harrod and Carolyn Peterson.

     Stewart says his efforts to prepare his legal defense were hampered by efforts of AOC and the prosecution. 

     Supreme Court Rule 3.130(3.8)(c)  places a duty on all prosecutors to:

 “Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…â€?,          

    Stewart says the prosecutor withheld documents his attorney had subpoenaed almost a year before trial, until days before the first scheduled date of the trial.

Upon retrieval of the e-mails between Peterson and Judge Harrod Stewart immediately contacted AOC’s attorney and reported his recover of the e-mail evidence and offered to deliver them. Stewart is convinced that the revelation that his forensic expert had uncovered the archieved data on his office computer strangely caused documents in the prosecution’s possession that “did not previously exist� to suddenly appear.

     Representatives for AOC came to his office after his retirement and rifled through his files before he had a chance to remove his personal records. He says they threw documents on the floor leaving the office in disarray, and removed most of his personal records.
    Sarah denies opening any e-mail messages on her husband’s computer. Judge Stewart says he was the one that opened up those messages, and did so from his personal computer at his residence. He says that his wife was present and worked the keyboard at his direction.  He felt he had the right to access his own office e-mail account.  The Commonwealth ignored his statement on this point.  He never maintained a personal e-mail account or other address for his office than that one e-mail address.    

     Judge Potter ruled that no one has a reasonable expectation of privacy as to e-mail messages stored on a state owned computer.  Nevertheless, the Commonwealth forced the plea bargain against Sarah Dutton by threatening to try to send her to prison for twenty years because they believed she was the one who opened and viewed the e-mail records. To fully understand the charge for opening the e-mails see KRS 484.845 below.  It is difficult to see how that statute used to indict Sarah Stewart would apply to this situation.

The result was that the Commonwealth was prosecuting Sarah Stewart for allegedly helping her husband recover important evidence from his own computer, but the party or parties who had deleted those messages, to keep them from being used at trail, go scott free. No privacy right of Carolyn Peterson was violated, according to Judge Potters ruling.

So acts intended to discover and protect evidence were prosecuted, but acts in obstructing justice by destroying the same evidence was ignored.  That reminds us of Alice in Wonderland, where “up is down and down is up�.  There is presently no indication that these questions will ever be investigated by KBI or by AOC.  This prosecutorial mentality  of  �never admit you are wrong� and “never believe anything the suspect says� is pervasive in this failed prosecution of Judge Stewart.

         One lesson is obvious. If you believe you are innocent, it may cost you your treasure, your health, your office, your retirement benefits, and your reputation just to defend yourself. 

     We propose several questions regarding the prosecution of the Stewarts:

Will judges be less likely to come forward in the future and report attempts of state officials to influence their decisions, after seeing what happened to Judge Stewart?

Can the public feel confident that the plea of Sarah Dutton was due to the fact that she was honestly guilty…or was her Alford plea (in which she legally and vocally  maintained her innocence) a mere Hobson’s choice of a person faced with the threat of financial ruin and weary of a persecution by a prosecutor who would not admit defeat, but who was armed with the awesome power, immunity and unlimited resources of the Commonwealth?

Did the Attorney General’s office jump into this prosecution too quickly, relying on weak evidence manufactured by officials who would personally benefit from a conviction of Judge Stewart?  We are reminded of the famous quote of Napoleon who said: “If you start to take Vienna – take Vienna.â€?  Clearly, the Attorney General’s office failed to take Vienna in this case.  They took their best shot at Judge Stewart and failed to obtain a conviction, but they successfully besmirched his good name, destroyed his finances, and drove him from office.

     Only by threatening a re-trial of his wife and a re-trial of Judge Stewart with the possibility they could void his entire retirement benefits earned over l9 years, and with the knowledge that additional trials and appeals would cost the Stewarts a small fortune in funds they didn’t have, did the Commonwealth obtain a slap on the wrist of Sarah Dutton. One can almost hear the theme from the Godfather as Don Corleone says, “I will make you a deal you can’t refuse.� (i.e. take this deal or we will take you down).

    One might conclude that the Commonwealth finally realized they had a very weak case, and demanded the plea bargain just to extract themselves from an embarrassing prosecution in a manner where they could claim some small victory.
    Bill Stewart and Sarah Dutton have been embarrassed and harmed financially by this questionable prosecution.  The public has been deprived of the services of a respected judge.  Is this an example of the quality of cases taxpayers can expect from future prosecutions advanced by the KBI? 

  One of the legal theories advanced by the Nazi’s was to prosecute and convict an innocent person from time to time. Everyone recognized that he was innocent, and they felt that this provided an excellent lesson to the public….â€? they could even convict an innocent person…ergo…we should not mess with them.â€?

    We do not suggest that a Judge should not be subject to the penal laws.  But we do believe that before you destroy the career of a respected official whom the public has three times elected, that you should be certain that you have enough evidence to obtain a conviction.  Evidence derived from mutinous officials hiding behind a cloak on anonymity, is rarely a reliable source of good evidence.  The Commonwealth sought to “take Vienna� and they failed badly in this case.  The Commonwealth owed a duty to the public, a duty imposed upon them by the law, to refuse to prosecute a person on charges lacking probable cause.  When their case fell apart, they should have admitted it, and taken steps to ameliorate some of the harm they had done to Judge Stewart and his wife.

   We note that this case came down to the issue of how a secretary who is working is to report her hours, and who has the right to access office e-mail accounts.  We are not aware of any effort by AOC to provide guidance to judges on these issues.  We are not aware of any effort by AOC to try to mediate this issue with the Stewarts.  No one provided Judge Stewart a chance to reply to any questions before he was the subject of a complaint process before the Judicial Conduct Commission. Before he was given a chance to remedy any complaints against him, the Commonwealth jumped in, with the biased push of Commonwealth Attorney Fielding Ballard, and took the matter to a grand jury.

AOC should have been allowed to deal with any billing claims as an administrative and civil matter. Only then, if clear evidence of a criminal act was found by AOC, the alleged victim, should criminal charges have been considered. AOC dropped the ball on this one by failing to intervene.

    The Model Judicial Code of Conduct of the American Bar Association in the Preamble describes the purpose of the Code of Conduct applicable to judges.  The Preamble to the Ky. Code is identical to the ABA model code and states:

“It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.�

“It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.�

    The Judicial Conduct Commission works best when it recognizes that it’s role is larger than just being a body that sanctions judges.  It should provide guidance to the judiciary, and should work with the judiciary to remedy potential issues which bring the judiciary in disrepute.  The JCC should be careful in the future in allowing its members to limit the discussion of the issues with judges invited to their informal hearings, and from allowing such informal hearings from becoming mini-grand jury inquisitions.

    We would suggest that the Attorney General review the conduct of this prosecution. If he is going to unleash the KBI against the judiciary, he should also create a hearing or review body to review the ethical actions of prosecutors.  Judges are subject to a review of their actions and conduct by the Judicial Conduct Commission. Legislators are subject to an Ethics committee.  But no one is charged with the responsibility to monitor the ethical conduct of prosecutors. 

The prosecutorial system should be required to admit a failed prosecution and should not be allowed to cover up botched prosecutions by using the threat of repeated jury trials to coerce meaningless plea bargains to save face.

The legislature should consider legislation imposing penalties for prosecutors who violate their duties to disclose exculpatory evidence and who continue to prosecute cases after all probable cause has evaporated.  The need for such legislation is made all the more necessary by a recent ruling of the U.S. Supreme Court which weakened sanctions for violation of the Exclusionary Rule.   The Kentucky Supreme Court has recently ruled in a number of cases, that the failure of the Commonwealth to deliver and disclose exculpatory evidence may be a “harmless error� and no penalty is imposed upon prosecutors who violate their duty in such cases.

The mutiny against Judge Stewart was based in part by anger by prosecutors over decisions made by Judge Stewart to reduce bail bonds and to grant probation against the wishes of the prosecutor.  They have no jurisdiction over the setting of bonds or the granting of probation.  Those decisions are solely the province of the trial Judge.  This area of conflict is not limited to Shelby County.  Judges should not be subjected to anonymous complaints and prosecution by prosecutors who are attempting to usurp the jurisdiction of the Judiciary.  Unfortunately, there is no one and no body in existence that is clearly charged with monitoring the abuses of prosecutors in such matters.  The Attorney General has the power to intervene, but no Attorney General is known to ever have called down a prosecutor for such actions.

    Mutiny is defined as: “concerted revolt against discipline or a superior officer.â€? The actions of the public officials in Shelby County who started this attack on Judge Stewart appears to fall within this definition.  Their actions is alleging ridiculous claims of potential violence (“there will be blood in the streetsâ€?) , and their complaints that Stewart looks out for the “scum such as Hispanics and blacksâ€? is reprehensible, and particularly so for elected officials.  Their complaint that he probated convicted persons and lowered bonds, is a direct challenge to the Judges jurisdiction. The complaint that he placed a lot of work on his clerk is almost silly, …what clerk or secretary doesn’t feel the same way?  Instead of being punished for her assistance in the mutiny against her own boss, Carolyn Peterson was awarded with a transfer to the Circuit Clerk’s office.

    The officials who penned the anonymous complaint failed in their public duties. If they felt Judge Stewart was so dangerous they should have announced their concern in public to the electorate, and by doing so would have had more credibility.  The use of an anonymous letter falsely attributed to citizens of all three counties in the 53rd. Judicial District, smacks of a mob mentality.  If the members of the mutiny had approached Judge Stewart to personally express their concerns to him, they may have been able to obtain some redress for their complaints.  We recall the scene from the Caine Mutiny where the lead defense attorney expressed his disgust for the actions of the mutinous officers who destroyed their Captain.  (See quotation of this speech in the commentary below.)

    Bill Stewart has leased a small basement office in the Highland area of Louisville and plans to try to build a law practice and to rebuild his reputation.  He was not removed from office by the Judicial Conduct Commission. He has not been convicted of any crime.  No criminal charges are pending against him.  By any measure of our judicial system, he is an innocent man.  But he has paid a high price in trying to prove his innocence.

   Where do the Stewarts go to get their good names back?


The prosecutor at all stages of a proceeding shall:
(a) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
[Adopted by Order 89-1, eff. 1-1-90]
 Official Commentary to SCR 3.130(3.8)
Supreme Court
1989: [1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. See also Rule 3.3(d), governing ex parte proceedings, among which grand jury proceedings are included. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4. (emphasis added by LawReader)

State Courts Officer Resigns Amid Concerns He Tried To Influence Outcome Of 3 Pending Cases

R. G. DUNLOP  The Courier-Journal (January 24, 2004)

During a five-year period beginning in 1997, an official of the state Administrative Office of the Courts approached judges and court employees about three pending cases and made comments that they interpreted as attempts to influence the outcomes.
But when Joseph M. Gray’s alleged misconduct in one of the cases was brought to the attention of the AOC in early 2002, he received only a verbal reprimand .

Cicely Lambert, director of the AOC, said yesterday in an e-mail to The Courier-Journal that Gray was censured by her deputy, Melinda Wheeler, and that she became aware of that incident, and of the others involving Gray, only within the past week.
Lambert, who has headed the AOC since February 1999, said “it is clear that such inquiries, if made in the manner described, would be inappropriate and give rise to at least the appearance of an impropriety.”

The 70-year-Gray, who worked in state government for nearly 50 years and who was paid $94,836 as an executive assistant at the AOC, resigned Jan. 16 – just days after the newspaper inquired about his involvement in the three cases and requested documents from his personnel file. It was unclear exactly what his duties were.
Judge Sara Combs, of the Kentucky Court of Appeals, said she also would have referred the matter to law-enforcement authorities for investigation had she known of the matter in 2002.

“Any attempt to subvert the process of an elected official of doing his or her job, I think is certainly a criminal matter that should have been reported,” Combs said.
Jim Deckard, Chief Justice Joseph Lambert’s chief of staff and legal counsel, was informed of the 2002 incident shortly after it occurred and referred the matter to the AOC, but he apparently did not tell his boss.

Chief Justice Lambert, who has administrative responsibility for the court system, including the AOC, yesterday issued a statement in which he said he learned only last week about “some possibly inappropriate judicial contact by Mr. Joe Gray.”
He said Gray’s contacts dated to the 1990s “and were made without my knowledge or approval.” The chief justice refused to answer questions about his statement, which came after he declined requests from the newspaper to discuss Gray.
In early 1997, the Kentucky Court of Appeals was asked to overturn a Knott Circuit Court ruling that barred the June Buchanan School from expelling two students who allegedly had violated the school’s code of conduct. One of the students, Chet Bailey, is the son of then-State Sen. Benny Ray Bailey, of Knott County .

While the case was pending before the Court of Appeals, Gray appeared there unannounced and asked to speak with Chief Judge Anthony Wilhoit. The two men were casually acquainted but had never before met alone, Wilhoit said in an interview last week.

Once the two men had settled into chairs in a small office, Wilhoit said, Gray told him that “some important person” might have an interest in the case.

…After his brief meeting with Gray concluded, however, Wilhoit said he became offended. It was, he said, the only time during his 29 years on the bench that anyone in the judicial system had approached him with questionable motives about a pending case.
“He was no sooner out the door than I got to thinking, ‘What have I done to make this guy think he can come in here and try to influence me, if that’s what he was doing?’”
Gray telephoned Circuit Judge William Stewart in November or December 1999 about an Anderson County case involving a dispute over child support, Stewart said in a recent interview.

The case had dragged on for several years because of the parties’ inability to agree on what information should be exchanged about the income of the father, Matthew Frederick. When Gray called him, Stewart said, Gray mentioned that Frederick was unhappy with the length of the case and that Frederick had complained to several political figures. “I felt like I was having my arm twisted,” Stewart said, adding that the exact details of the conversation are now hazy.

Stewart said he thought Gray’s call was “clearly” inappropriate, and he quickly became incensed and cut short the conversation. Stewart has been the circuit judge in Shelby, Anderson and Spencer counties since the mid-1980s and said he had never before – or since – received an inquiry about a pending case that he deemed inappropriate .

At the time of Gray’s call, Stewart had a request pending for a law clerk as part of the state judiciary’s budget proposal to the legislature. Although the judge said he does not recall Gray mentioning the request, he later received word from someone whose identity he cannot recall that “I might as well forget it. I got word that I was out of luck.”

Stewart said he concluded that his negative reaction to Gray’s telephone call had scuttled his request for the clerk, which he did not receive.

“I was burning my bridges with the person who would shepherd my request through the legislature. That’s his job, as I understood it.”

Gray had been an AOC employee since November 1987, and worked primarily as a lobbyist with legislators and the executive branch.

So incensed was Stewart by Gray’s telephone call that he brought it up during a hearing in the case on Dec. 19, 1999. According to a videotape of the proceedings, the judge said:

“The court’s office is not supposed to, first-hand, second-hand or third-hand, be called by people with political influence demanding of me to know what the status of the case is. That’s highly inappropriate, highly inappropriate. That stuff’s gotta stop.…”
The only known instance of intervention by Gray that came to the attention of the Supreme Court or the AOC occurred in January 2002, when Gray called two employees at the Kentucky Court of Appeals about a jurisdictional dispute in a pending divorce case.

Both employees later wrote memos about the conversations at the request of then-Chief Judge Paul Gudgel. In an interview, Gudgel said he sent the memos, along with a cover letter, to Deckard, the chief justice’s chief of staff and legal counsel.

Gudgel said he no longer had a copy of his letter. Deckard and the AOC both refused to provide the newspaper with a copy of it. But the Court of Appeals allowed the newspaper to review copies of the employees’ statements.

Gudgel, who retired from the Court of Appeals in November 2002 , said in the interview that he sent the employees’ statements, along with the letter, to Deckard because Gray was not subject to the Court of Appeals’ direction or control. Deckard acknowledged in an e-mail to The Courier-Journal that he and Gudgel discussed Gray’s conversations with Stubblefield and Winther. “Upon learning of the details from Judge Gudgel, I informed the management of the Administrative Office of the Courts of Mr. Gray’s comments, and he was censured,” Deckard said in the e-mail.

Deckard’s response did not say why he did not share his knowledge of the incident with Chief Justice Lambert. Deckard did not respond to several requests for comment about Gray or clarification of his e-mail.

Gray’s personnel file contains no indication of any disciplinary actions. AOC spokeswoman Leigh Anne Hiatt told the newspaper that a sanction such as a censure or verbal reprimand would not be reflected in the file because it is unnecessary to document discipline of a nonmerit employee, such as Gray, who serves at the pleasure of a supervisor and can be dismissed at any time without cause.

Combs and the two other judges who decided the case – against the woman for whom Gray had allegedly lobbied – all said that they had no knowledge at the time of Gray’s approaches to the Court of Appeals employees, and that they learned of them only after the newspaper’s recent inquiries.

“I find that highly objectionable and totally inappropriate,” Judge William McAnulty said of Gray’s conduct.

Combs said she found it sobering to think that a different ruling might have given Gray or others the impression that he had influenced the outcome.

Courier-Journal editorial:

                                        AOC’s Lax Response

Courier-Journal Editorial (January 27, 2004)

ORDINARY citizens make certain assumptions about courts, judges and legal process. They believe, among other things, that the American justice system is fundamentally honest. Despite the occasional corrupting anomaly, the rule of law does stand between us and chaos, and the public expects it to stand upright.

That’s why it was so disturbing to read Courier-Journal reporter R. G. Dunlop’s account of Joseph M. Gray’s conduct. Mr. Gray, a highly paid executive assistant at the Administrative Office of Courts, resigned just days after the newspaper asked about his seemingly improper involvement in three pending cases.

The judges and court employees whom Mr. Gray approached seem pretty clear, in their own minds, about what he was trying to do. They think he was attempting to influence outcomes.

He’s gone from the state payroll now, but questions remain:

1. Why, when Mr. Gray’s alleged misconduct in one case was brought to the attention of the AOC in 2002, was he only given an oral reprimand, which doesn’t even show up in his personnel records? Appeals Court Judge Sara Combs, one of those who heard the case, said she would have brought law enforcement into the matter if she had known about his conduct. She nicely summed up the obvious: “Any attempt to subvert the process of an elected official, of doing his or her job, I think is certainly a criminal matter that should have been reported.”

2. Why is communication so limited between Chief Justice Joseph Lambert and his chief of staff, Jim Deckard? The latter heard about the 2002 incident but referred it to the AOC without, apparently, telling the state’s top judicial officer. How can Justice Lambert properly administer the courts without full information?

3. Why didn’t then- Judge Tony Wilhoit report to the AOC that Mr. Gray visited him to discuss Appeals Court consideration of a celebrated case involving June Buchanan School’s expulsion of two students – one of them Chet Bailey, son of a powerful state senator? Mr. Wilhoit, now head of the Legislative Ethics Commission, said he viewed Mr. Gray as some kind of easily dismissable, latter-day Falstaff. But of course this is real life, not the Old Vic.

We suggest he read “Measure for Measure,,” wherein Shakespeare warns, “We must not make a scarecrow of the law, setting it up to fear the birds of prey, and let it keep one shape, till custom make it their perch and not their terror.”
One might raise an eyebrow at the Commonwealth admitting they could not convict Stewart, by dismissing all charges against him, but would prosecute him anyway unless he just went away. One might think that an innocent man should be totally cleared, and if the Commonwealth really had a case against him, they should have prosecuted it.�

                                                 The Caine Mutiny Court-Martial

The Caine Mutiny Court-Martial was a Broadway play and a movie. It was based on the novel by Herman Wouk which won the Pulitzer Prize in 1951.

     At the end of the court martial, the mutinous officers retire to a victory dinner after having destroyed the career of Captain Queeg, and successfully been acquitted of mutiny by a Navy Court Martial Board.  One of the defense attorneys who lead the defense and effectively destroyed Captain Queeg, being in his cups, and disgusted with his own actions raises his glass to the assembled officers and says:
“I’m up to the toast. Here’s to You. You bowled a perfect score. You went after Queeg, and got him. You kept your own skirts all white and starchy. Steve is finished for good, but you’ll be the next captain of the Caine. You’ll retire old and full of fat fitness reports. You’ll publish your novel proving that the Navy stinks, and you’ll make a million dollars and marry Hedy Lamarr. No letter of reprimand for you, Just royalties on your novel. So you won’t mind a li’l verbal reprimand from me, what does it mean? I defended Steve because I found out the wrong guy was on trial. Only way I could defend him was to sink Queeg for you. I’m sore that I was pushed into that spot, and ashamed of what I did, and thass why I’m drunk. Queeg deserved better at my hands. I owed him a favor, ‘don’t you see? He stopped Hermann Goering from washing his fat behind with my mother.
“So I’m not going to eat your dinner, Mr. Keefer, or drink your wine, but simply make my toast and go. Here’s to you, Mr. Caine’s favorite author, and here’s to your book.”
He threw the yellow wine in Keefer’s face. “


1) The KBI has appointed itself at the watchdog for the judiciary. The following is published on their website at: .
The Ky. Bureau of Investigation – Office of the Attorney General  
Public Corruption / Special Investigations Branch

Agents of the KBI maintain aggressive public corruption investigation policies. As caretakers of the public trust, government officials can affect the finances and lives of its citizenry every day. The duty of this branch is to ensure that our leaders execute their duties in both an ethical and honest manner. The branch investigates numerous arenas of corruption including judicial, legislative, vendor contract, law enforcement and regulatory corruption. When federal violations are identified, the unit works jointly with the appropriate federal agency and U.S. Attorney’s office in addressing those violations.
Anyone aware of such illegal activity on the part of an elected or appointed official is encouraged to contact the KBI toll-free hotline at 866-KBI-FORCE (524-3672).

2) Offense for which Sarah Dutton was originally indicted:
KRS 434.845 Unlawful access to a computer in the first degree.
(1) A person is guilty of unlawful access to a computer in the first degree when he or
she, without the effective consent of the owner, knowingly and willfully, directly or
indirectly accesses, causes to be accessed, or attempts to access any computer
software, computer program, data, computer, computer system, computer network,
or any part thereof, for the purpose of:
(a) Devising or executing any scheme or artifice to defraud; or
(b) Obtaining money, property, or services for themselves or another by means of
false or fraudulent pretenses, representations, or promises.
(2) Unlawful access to a computer in the first degree is a Class C felony

Note: Dutton, at the direction of Judge Stewart accessed the Judge’s e-mail account.  The computer used was the Judges’ personal computer.  The e-mail account accessed was the only e-mail account used by his office and with the consent of his law clerk.
We have difficulty in understanding how this access was “without the owner’s consentâ€? and how she is supposed to have “obtained money, property or services ….by means of fraudulent pretenses, representations or promises.â€?
 In the plea bargain the charge in the indictment was reduced to a count of :

KRS 434.853 Unlawful access in the fourth degree.
(1) A person is guilty of unlawful access in the fourth degree when he or she, without
the effective consent of the owner, knowingly and willfully, directly or indirectly
accesses, causes to be accessed, or attempts to access any computer software,
computer program, data, computer, computer system, computer network, or any part
thereof, which does not result in loss or damage.

(2) Unlawful access to a computer in the fourth degree is a Class B misdemeanor.
   During the plea inquiry by the court  she was asked what she did by the Judge.  She replied, “I did nothing wrong�.   She entered an Alford Plea which does not require an admission of guilt.
Sarah Dutton was also required to plea to the following count which was based on an allegation that although she was a salaried employee, that she did not work as many hours as required.  This charge was originally based on alleged forged or fraudulent time sheets.  After the indictment, AOC informed the prosecutor that she was not required to report an hourly time sheet, and she did not do so.  As a salaried employee she was required to file QLR reports (Quarterly Leave Reports).  She testified that she did in fact correctly file the QLR reports and reported all leave and vacation time.   Judge Stewart was charged with numerous felony offenses for signing the QLR reports. All criminal charges were dismissed against Judge Stewart.

   The original charges against Sarah Dutton were reduced in the plea bargain and she entered an Alford plea  to:

KRS 514.040 Theft by deception.
(1) A person is guilty of theft by deception when the person obtains property or services
of another by deception with intent to deprive the person thereof. A person deceives
when the person intentionally:
(a) Creates or reinforces a false impression, including false impressions as to law,
value, intention, or other state of mind;
(b) Prevents another from acquiring information which would affect judgment of a
(c) Fails to correct a false impression which the deceiver previously created or
reinforced or which the deceiver knows to be influencing another to whom the
person stands in a fiduciary or confidential relationship;
(d) Fails to disclose a known lien, adverse claim, or other legal impediment to the
enjoyment of property which the person transfers or encumbers in
consideration for the property obtained, whether the impediment is or is not
valid or is or is not a matter of official record; or
(e) Issues or passes a check or similar sight order for the payment of money,
knowing that it will not be honored by the drawee.
(2) The term “deceive” does not, however, include falsity as to matters having no
pecuniary significance or puffing by statements unlikely to deceive ordinary persons
in the group addressed.
(3) Deception as to a person’s intention to perform a promise shall not be inferred from
the fact alone that he did not subsequently perform the promise.
(4) For purposes of subsection (1) of this section, a maker of a check or similar sight
order for the payment of money is presumed to know that the check or order, other
than a postdated check or order, would not be paid, if:
(a) The maker had no account with the drawee at the time the check or order was
issued; or
(b) Payment was refused by the drawee for lack of funds, upon presentation within
thirty (30) days after issue, and the maker failed to make good within ten (10)
days after receiving notice of that refusal. A maker makes good on a check or
similar sight order for the payment of money by paying to the holder the face
amount of the instrument, together with any merchant’s posted reasonable bad
check handling fee not to exceed twenty-five dollars ($25) and any fee
imposed pursuant to subsection (5) of this section.
(5) If a county attorney issues notice to a maker that a drawee has refused to honor an
instrument due to a lack of funds as described in subsection (4)(b) of this section, the
county attorney may charge a fee to the maker of twenty-five dollars ($25), if the
instrument is paid. Money paid to the county attorney pursuant to this section shall
be used only for payment of county attorney office operating expenses. Excess fees
held by the county attorney on June 30 of each year shall be turned over to the
county treasurer before the end of the next fiscal year for use by the fiscal court of
the county.
(6) A person is guilty of theft by deception when the person issues a check or similar
sight order in payment of all or any part of any tax payable to the Commonwealth
knowing that it will not be honored by the drawee.
(7) A person is guilty of theft by deception when the person issues a check or similar
sight order in payment of all or any part of a child support obligation knowing that it
will not be honored by the drawee.
(8) Theft by deception is a Class A misdemeanor unless the value of the property,
service, or the amount of the check or sight order referred to in subsection (6) or (7)
of this section is three hundred dollars ($300) or more, in which case it is a Class D

3)  All criminal charges were dismissed against Judge Stewart. The Commonwealth required that he (in order to obtain the reduced charges for his wife) submit a letter to AOC stating that he was withdrawing his application for Senior Judge status, and stating that he would not seek appointment to or run for election for the office of judge.

This letter is of questionable legality.  Judge Stewart remains constitutionally qualified to become a candidate for any public office. 



The convoluted path of a possible appeal from Judge Melchers ruling.

Tuesday, August 15th, 2006

  By Stan Billingsley, Senior Editor, .

    The Commonwealth does not have the right to file an appeal of the interlocutory ruling of Judge Melcher holding the prosecution of Gov. Fletcher in abeyance pending his impeachment or removal from office.

See: Tipton v. Commonwealth of Kentucky, 770 S.W.2d 239 (Ky.App. 03/24/1989):

 “Unquestionably, KRS 22A.020 provides for interlocutory appeals but only from circuit court, not to circuit court from district court.
 The proper procedure for appeals from district court is governed by KRS 23A.080, and therein we see no corollary to KRS 22A.020(4) authorizing an interlocutory appeal by the Commonwealth.�

     The Court of Appeals in Commonwealth v. Williams, 995 S.W.2d 400 (KYCA, 1999)  acknowledged that there was no right to an interlocutory appeal from District Court orders to the Circuit Court, but they suggested a way the same thing could be achieved by a ruse that is highly questionable but which has never been overruled by the Supreme Court.

The Court of Appeals in Commonwealth v. Williams, 995 S.W.2d 400 (KYCA, 1999) permitted an original action to be filed in Circuit court seeking a writ of prohibition against the District court ruling in lieu of an interlocutory appeal which is not authorized.

 There has been no Sup. Ct. ruling which upholds the suggestion found in Williams that admitted an interlocutory appeal from District Court to Circuit Court was not authorized, but that suggested that the Commonwealth could file an original action  in Circuit Court (naming the District Court Judge as the defendant) to seek a writ of prohibition against the District Court Judges pre-trial ruling.

    The problem with Williams is that it has never been confirmed by the Supreme Court that the procedure of filing an original action overrides the prohibition against interlocutory appeals from District Court to Circuit Court.

    The Court of Appeals in Billingsley v. Commonwealth, No. 2002-CA-001879-MR (Ky.App. 06/04/2004)  ( NOTE: THIS CASE WAS ORDERED DEPUBLISHED BY KY. SUP. CT. )     described the procedure discussed in Williams to get around the Tipton prohibition against interlocutory District Court appeals:

The Court held:
“ In our opinion, review of district court rulings is available through an original proceeding for relief in the nature of mandamus or prohibition in the appellate court, herein the circuit court. See SCR 1.040(6). CR 81 allows the old remedy by writs of mandamus and prohibition to be obtained by an original action in the appropriate court. This is not an immediate and direct interlocutory appeal to the appellate court but an original action. Procedurally, review is granted, thereby comporting with KRS 23A.080(2) which says, “The circuit court may issue all writs necessary in aid of its appellate jurisdiction . . . .”
   The Supreme Court was petitioned by District Judge Billingsley to review the decision of the Court of Appeals which upheld the “original action� procedure to obtain an interlocutory review of a District Court pre-trial suppression order.  They denied discretionary review but then depublished the case.   There were many issues in the case, and it cannot be said that the Sup. Ct. intended to take any position on the “original action in lieu of an appeal doctrine� which was originally discussed by the Court of Appeals in the Williams case.

      Assuming that the Commonwealth files an original action in Franklin Circuit Court seeking a Writ of Prohibition against Judge Melcher’s District Court ruling, then KRS 22A.020(5) would appear to allow the aggrieved party to petition the Court of Appeals for a writ of certiorari…but note that KRS 22A.020(5) uses the word “appealâ€? and does not refer to an original action filed against the District Court Judge in Circuit Court.

In the Billingsley v. Commonwealth case, Judge Billingsley suppressed a BA test.  The Commonwealth filed an original action in the Carroll Circuit Court naming Judge Billingsley at the only party defendant, and the Circuit Court granted a Writ of Prohibition setting aside the evidentiary ruling of the District Court.

Judge Billingsley then appealed to the Court of Appeals, where the Writ of Prohibition was upheld by a 2 to 1 decision.  Judge Billlingsley then petitioned for Discretionary Review to the Supreme Court.  Discretionary review was denied, but the Court of Appeals case was ordered depublished.   

     KRS 22A.020 sets out the jurisdiction for appeals.  It only authorizes appeals from Circuit Court of orders.  It does not extend this right to allow appeals of orders from District Courts.
      We conclude from our reading of the caselaw and the statutes applicable to criminal appeals, that there is no right for the Commonwealth to appeal an order of the Franklin Circuit Court.

    However, the Commonwealth may be permitted to follow the procedure first mentioned in the Williams case, and file an original action in the Franklin Circuit Court seeking a Writ of Prohibition from Judge Melcher’s order.  This action would be styled, Commonwealth v. Melcher.

    From any final ruling of the Franklin Circuit Court in this “original action�, then the aggrieved party under KRS 22A.020 (4) would be authorized to appeal to the Court of Appeals.  .

Pursuant to CR 73.01 any party may in lieu of an appeal to the Court of Appeals, file a motion for transfer of the case to the Supreme Court as provided by CR 74.02.  The Supreme Court may grant or deny the motion to bypass the Court of Appeals.

    If the Court of Appeals hears the appeal from Circuit Court, the aggrieved party would then be allowed only to request the right to appeal to the Supreme Court by petitioning for Discretionary Review.


 CR 73.01 GENERAL PROVISIONS  -     (2) All appeals shall be taken to the next higher court by filing a notice of appeal in the court from which the appeal is taken. After such filing, if the appeal is from a circuit court, any party may file a motion for transfer of the case to the Supreme Court as provided in CR 74.02.
A motion for discretionary review by the Supreme Court of a decision of the Court of Appeals, or by the Court of Appeals of an appellate decision of the circuit court, shall be made as provided in Rule 76.20.
 KRS 22A.020 (5) Any party aggrieved by the judgment of the Circuit Court in a case appealed from a court inferior thereto may petition the Court of Appeals for a writ of certiorari.

“KRS 22A.020 Jurisdiction — Appeal procedures.
(1) Except as provided in Section 110 of the Constitution, an appeal may be taken as a
matter of right to the Court of Appeals from any conviction, final judgment, order,
or decree in any case in Circuit Court, including a family court division of Circuit
Court, unless such conviction, final judgment, order, or decree was rendered on an
appeal from a court inferior to Circuit Court.
(2) The Court of Appeals has jurisdiction to review interlocutory orders of the Circuit
Court in civil cases, but only as authorized by rules promulgated by the Supreme
(3) Notwithstanding any other provision in this section, there shall be no review by
appeal or by writ of certiorari from that portion of a final judgment, order or decree
of a Circuit Court dissolving a marriage.
(4) An appeal may be taken to the Court of Appeals by the state in criminal cases from an adverse decision or ruling of the Circuit Court, but only under the following conditions: 
   (Note this does not say such an appeal can be taken from the District Court…only from the Circuit Court.)
 (a) Such appeal shall not suspend the proceedings in the case.
(b) Such appeal shall be taken in the manner provided by the Rules of Criminal
Procedure and the Rules of the Supreme Court, except that the record on
appeal shall be transmitted by the clerk of the Circuit Court to the Attorney
General; and if the Attorney General is satisfied that review by the Court of
Appeals is important to the correct and uniform administration of the law, he
may deliver the record to the clerk of the Court of Appeals within the time
prescribed by the above-mentioned rules.
(c) When an appeal is taken pursuant to this subsection, the Court of Appeals, if
the record so warrants, may reverse the decision of the Circuit Court and order
a new trial in any case in which a new trial would not constitute double
jeopardy or otherwise violate any constitutional rights of the defendant.
(5) Any party aggrieved by the judgment of the Circuit Court in a case appealed from a court inferior thereto may petition the Court of Appeals for a writ of certiorari.
Effective: June 24, 2003
History: Amended 2003 Ky. Acts ch. 66, sec. 16, effective June 24, 2003. — Created
1976 Ky. Acts ch. 70, sec. 3, effective March 23, 1976.

              In a case applying to Circuit Courts, the Court held:

Commonwealth v. Blincoe, 33 S.W.3d 533, 33 S.W.3d 533 (Ky.App. 12/01/2000)
We do not find that Eaton v. Commonwealth, supra, permits pre-trial proceedings to be held in abeyance until a ruling is made on the interlocutory order.

 Eaton holds that unless the defendant’s “constitutional right to a speedy trial were unduly threatened, we see no reason why an interlocutory `ruling’ entered prior to trial . . . could not be reviewed by appeal.” Id. at 639.

The Eaton court indicated that where a defendant’s right to a speedy trial was threatened by the requested delay, the prosecution might wish to request a writ of prohibition. The proper avenue for the prosecution when aggrieved by an interlocutory order of the trial court is an appeal of the ruling. Commonwealth v. Williams, Ky. App., 995 S.W.2d 400, 402 (1999).

KRS 23A.080 Appeals from District Court — Issuance of writs by Circuit Court.
(1) A direct appeal may be taken from District Court to Circuit Court from any final
action of the District Court.
(2) The Circuit Court may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction.
Effective: January 2, 1978
History: Created 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 482, effective January 2,

Former Chief Justice Palmore says Fletcher has politicized the Courts.

Tuesday, August 15th, 2006

Former Chief Justice John Palmore says Fletcher’s influence and the actions of current Chief Justice Joseph Lambert have politicized the Supreme Court.

Palmore says eventually the political makeup of the court will swing the other way, perhaps after the November elections.
McAnulty’s November opponent, Jefferson Circuit Judge Ann O’Malley Shake, says she doesn’t intend to hammer McAnulty with Fletcher, but says, “I will explain to voters why I didn’t seek the governor’s appointment.â€?  Shake says, “I didn’t want to go to an indicted defendant with my hand out.”

McAnulty says there were no promises made to the governor in return for the appointment to the Supreme Court and he’ll recuse himself from cases involving Fletcher.

Under Supreme Court and statutory rules, when three justices recuse themselves, then the Governor appoints special justices to hear the pending case.  If the case of Commonwealth v. Fletcher gets to the Ky. Supreme Court, and if McAnulty recuses himself as he says he will, and if Justice Roach, the Governor’s former legal counsel recuses, as he did before, and if Lambert or any other appointee of Gov. Fletcher recuses, then the rules will apply….and allow the Gov. to appoint three special justices to hear his case.


The swearing in of Justice McAnulty means Governor Fletcher has now appointed three Supreme Court justices and has political ties to a fourth.  That’s a majority of the seven-member high court.


Has Bush v. Gore Become the Case That Must Not Be Named?

Tuesday, August 15th, 2006


At a law school Supreme Court conference that I attended last fall, there was a panel on “The Rehnquist Court.� No one mentioned Bush v. Gore, the most historic case of William Rehnquist’s time as chief justice, and during the Q. and A. no one asked about it. When I asked a prominent law professor about this strange omission, he told me he had been invited to participate in another Rehnquist retrospective, and was told in advance that Bush v. Gore would not be discussed.

The ruling that stopped the Florida recount and handed the presidency to George W. Bush is disappearing down the legal world’s version of the memory hole, the slot where, in George Orwell’s “1984,� government workers disposed of politically inconvenient records. The Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.�

There is a legal argument for pushing Bush v. Gore aside. The majority opinion announced that the ruling was “limited to the present circumstances� and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.

Bush v. Gore’s lasting significance is being fought over right now by the Ohio-based United States Court of Appeals for the Sixth Circuit, whose judges disagree not only on what it stands for, but on whether it stands for anything at all. This debate, which has been quietly under way in the courts and academia since 2000, is important both because of what it says about the legitimacy of the courts and because of what Bush v. Gore could represent today. The majority reached its antidemocratic result by reading the equal protection clause in a very pro-democratic way. If Bush v. Gore’s equal protection analysis is integrated into constitutional law, it could make future elections considerably more fair.

The heart of Bush v. Gore’s analysis was its holding that the recount was unacceptable because the standards for vote counting varied from county to county. “Having once granted the right to vote on equal terms,� the court declared, “the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.� If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now.

The first major judicial test of Bush v. Gore’s legacy came in California in 2003. The N.A.A.C.P., among others, argued that it violated equal protection to make nearly half the state’s voters use old punch-card machines, which, because of problems like dimpled chads, had a significantly higher error rate than more modern machines. A liberal three-judge panel of the United States Court of Appeals for the Ninth Circuit agreed. But that decision was quickly reconsidered en banc —that is, reheard by a larger group of judges on the same court — and reversed. The new panel dispensed with Bush v. Gore in three unilluminating sentences of analysis, clearly finding the whole subject distasteful.

The dispute in the Sixth Circuit is even sharper. Ohio voters are also challenging a disparity in voting machines, arguing that it violates what the plaintiffs’ lawyer, Daniel Tokaji, an Ohio State University law professor, calls Bush v. Gore’s “broad principle of equal dignity for each voter.� Two of the three judges who heard the case ruled that Ohio’s election system was unconstitutional. But the dissenting judge protested that “we should heed the Supreme Court’s own warning and limit the reach of Bush v. Gore to the peculiar and extraordinary facts of that case.�

The state of Ohio asked for a rehearing en banc, arguing that Bush v. Gore cannot be used as precedent, and the full Sixth Circuit granted the rehearing. It is likely that the panel decision applying Bush v. Gore to elections will, like the first California decision, soon be undone.

There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power.

The courts should also stand by Bush v. Gore’s equal protection analysis for the simple reason that it was right (even if the remedy of stopping the recount was not). Elections that systematically make it less likely that some voters will get to cast a vote that is counted are a denial of equal protection of the law. The conservative justices may have been able to see this unfairness only when they looked at the problem from Mr. Bush’s perspective, but it is just as true when the N.A.A.C.P. and groups like it raise the objection.

There is a final reason Bush v. Gore should survive. In deciding cases, courts should be attentive not only to the Constitution and other laws, but to whether they are acting in ways that promote an overall sense of justice. The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing. The courts could start to undo the damage by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them.


Governor Ernie Fletcher today appointed Glenn E. Acree and Judge Thomas Wine to the Ct. of Appeals

Tuesday, August 15th, 2006

FRANKFORT, Ky. – Governor Ernie Fletcher today appointed Glenn E. Acree as Judge of the Kentucky Court of Appeals, 5th Appellate District, Division 2.
Judge Acree replaces Judge Julia Tackett, who retired. The appointment is effective immediately.
“Glenn Acree holds a broad knowledge of the judicial system and tremendous dedication to the field of law,� said Governor Fletcher. “He will do an exceptional job as a Judge of the Kentucky Court of Appeals.� 
“I am honored and humbled by the confidence the Governor has shown in me by making this appointment,� said Judge Acree. “I look forward to undertaking the important work of the Court of Appeals as soon as possible.�
A native of Baltimore and resident of Lexington since his admission to the Kentucky Bar Association in 1985, Acree received his bachelor’s degree in history from the University of Kentucky, his master’s degree in American history from the University of Maryland, and his juris doctorate from the University of Kentucky College of Law. Acree has been sole practitioner in the Acree Law Office since 1997. He and his wife, Lisa Tarleton (Hahn) Acree have two children, Matthew and Taylor.
Governor Ernie Fletcher also appointed Judge Thomas B. Wine as Judge of the Kentucky Court of Appeals, 4th Appellate District, Division 1.
Judge Wine replaces Judge William E. McAnulty, who was appointed to the Supreme Court of Kentucky. The appointment is effective immediately.
“Judge Wine’s judicial and legal background make him highly qualified for this position,� said Governor Fletcher. “He will do an exceptional job as a Judge of the Kentucky Court of Appeals.� 
“I am honored by this opportunity to continue my judicial service as an appellate court judge,� said Judge Wine. “I appreciate the trust Governor Fletcher has in me and will work hard to ensure all members of our community are treated fairly and impartially.�
A native of Louisville, Judge Wine received his bachelor’s degree from the University of Louisville and his juris doctorate from the University of Louisville School of Law. Judge Wine has served as a circuit court judge in Jefferson County since 1992. He is a member of the Kentucky, Louisville and American Bar Associations. Wine and his wife, Anne Marie Wine, have two children, Daniel and Matthew.


Governor Fletchers Influence on the Appealate ladder of Com. v Fletcher

Sunday, August 13th, 2006

Any appeal of Com. V. Fletcher, would go from the Franklin District Court (Judge Melcher), to the Franklin Circuit Court, then either to the Ct. of Appeals, or possibly to the Ky. Supreme Court. 
The following charts show the make up of the current courts in the appellate ladder and identifies those appointed by Gov. Fletcher.
Makeup of Supreme Court
Makeup of Ct. of Appeals
Makeup of Franklin Circuit Court
Recusal Procedures  Statutory requirements for Judge to Recuse himself.
Current Makeup of the KY. Supreme Court

Chief Justice
Joseph E. Lambert3rd Supreme Court District
Author of � Footnote 16� which said �some have made a strong argument for immunity from prosecution�


Retiring J. William Graves1st Supreme Court District
Will be replaced in Jan. of 2007 by newly elected Justice
John C. Roach- 5th Supreme Court District
Appointed by Gov. Fletcher

Faces race in Dec. against Judge Mary Noble.

John D. Minton, Jr. - 2nd Supreme Court District
Appointed by Gov. Fletcher
Unopposed in Nov.
Retiring Donald C. Wintersheimer6th Supreme Court District
Will be replaced in Jan. of 2007 by newly elected Justice —
either Marcus Carey or Ct. of Appeals Judge Wil Schroder
William  E. McAnulty, Jr.4th Supreme Court District
Appointed by Gov. Fletcher

Faces race in Nov. against Judge Ann Shake.

Will T. Scott, Deputy Chief Justice- 7th Supreme Court District
Does not face election this year.




                                    Current  Makeup of the Court of Appeals
  Six of 14 Ct. of Appeals Judges will have been appointed by Governor Fletcher.

       This court assigns three judge panels to hear appeals from Circuit Court.


Chief Judge – Sara W. Combs 7th District, 1st Division
Judges – Rick Johnson 1st District, 1st Division
Appointed by Gov. Fletcher
Donna Dixon
1st District, 2nd Division
  Jeff S. Taylor 2nd District, 1st Division
To be appointed by Gov. Fletcher within days
2nd District, 2nd Division
To be appointed by Gov. Fletcher within days
3rd District, 1st Division
  Michael L. Henry 3rd District, 2ndDivision
To be appointed by Gov. Fletcher within days
4th District, 1st Division
Appointed by Gov. Fletcher
Lisabeth Abramson
4th District, 2nd Division
  Laurance B. VanMeter 5th District, 1st Division
To be appointed by Gov. Fletcher with days.
5th District, 2nd Division
  Daniel T. Guidugli 6th District, 1st Division
  Wilfrid Schroder 6th District, 2nd Division
  David A. Barber 7th District, 2nd Division


                             Current Makeup of Franklin Circuit Court

Hon. O. Reed Rhorer Chief Circuit Judge Family Court Judge 321 West Main, Frankfort, KY 40601-1803 Franklin   Cir. 48, Div. 03 Family  ,  
Hon. Thomas D. Wingate Circuit Judge Courthouse 218 St. Clair Street, Frankfort, KY 40601


Franklin   Cir. 48, Div. 02  ,  
Hon. Sam McNamara

Appointed by Gov. Fletcher

Circuit Judge PO Box 678, Frankfort, KY 40602





                                    Recusal procedures

             KRS 26A.015 mirrors the requirements of the Judicial Code of Conduct regarding recusal of judges.


KRS 26A.015 Disqualification of justice or judge of the Court of Justice, or master

(1) For the purposes of this section the following words or phrases shall have the
meaning indicated:

(a) “Proceeding” includes pretrial, trial, appellate review, or other stages of

(b) “Fiduciary” includes such relationships as executor, administrator, conservator,
trustee, and guardian;

(c) “Financial interest” means ownership of a legal or equitable interest, however
small, or a relationship as director, adviser, or other active participant in the
affairs of a party, except that:

1. Ownership in a mutual or common investment fund that holds securities,
or a proprietary interest of a policyholder in a mutual insurance company,
of a depositor in a mutual savings association, or a similar proprietary
interest, or ownership of government securities is a “financial interest”
only if the outcome of the proceeding could substantially affect the value
of the interest;

2. An office in an educational, religious, charitable, fraternal, or civic
organization is not a “financial interest” in securities held by the organization.

(2) Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding:

(a) Where he has a personal bias or prejudice concerning a party,
 or personal knowledge of disputed evidentiary facts concerning the proceedings,
 or has expressed an opinion concerning the merits of the proceeding;

(b) Where in private practice or government service he served as a lawyer or
rendered a legal opinion in the matter in controversy, or a lawyer with whom
he previously practiced law served during such association as a lawyer
concerning the matter in controversy, or the judge, master commissioner or
such lawyer has been a material witness concerning the matter in controversy;

(c) Where he knows that he, individually or as a fiduciary, or his spouse or minor
child residing in his household, has a pecuniary or proprietary interest in the
subject matter in controversy or in a party to the proceeding;

(d) Where he or his spouse, or a person within the third degree of relationship to
either of them, or the spouse of such a person:

1. Is a party to the proceeding, or an officer, director, or trustee of a party;

2. Is acting as a lawyer in the proceeding and the disqualification is not
waived by stipulation of counsel in the proceeding filed therein;

3. Is known by the judge or master commissioner to have an interest that
could be substantially affected by the outcome of the proceeding;

4. Is to the knowledge of the judge or master commissioner likely to be a
material witness in the proceeding.

(e) Where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.

   *NOTE:  The judge is generally considered to be in the best
     position to determine whether questions regarding his impartiality
     are reasonable. Jacobs v. Commonwealth, Ky. App., 947 S.W.2d 416 (1997).

(3) (a) Any justice or judge of the Court of Justice disqualified under the provisions of
this section shall be replaced by the Chief Justice.

(b) Any master commissioner disqualified under the provisions of this section or
unable to discharge the duties of his office for any other reason shall be
replaced by a special commissioner who shall be appointed by the judge of the
court before whom the action is pending. The special commissioner shall meet
the same qualifications as a master commissioner and shall take an oath and
execute a bond as the regular commissioner is required to do.

Effective: July 1, 1982
History: Amended 1982 Ky. Acts ch. 141, sec. 41, effective July 1, 1982. — Created
1976 (1st Extra. Sess.) Ky. Acts ch. 22, sec. 4.
Note: 1980 Ky. Acts ch. 396, sec. 44 would have amended this section effective July 1,
1982. However, 1980 Ky. Acts ch. 396 was repealed by 1982 Ky. Acts ch. 141,
sec. 146, also effective July 1, 1982.

LawReader legal analysis: The Melcher Official Act Immunity Doctrine Ruling. Where does it take us?

Sunday, August 13th, 2006

Legal discussion by Stan Billingsley, Senior Editor of

      Special Franklin District Court Judge David Melcher ruled orally from the bench on Friday Aug. 11th. that the Governor could not be prosecuted for alleged criminal acts which formed the basis of an indictment by the Franklin County Grand Jury, until he was impeached or until he left office.  The ruling stayed the prosecution until that time.

      We have the greatest respect for Judge Melcher. He is a hard working and respected Judge.  We do however, respectfully dissent from his legal conclusions in this important case.  This case applies not only to this governor, but to all constitutional officers, currently in office and those to come in the future if this doctrine is not contested by an appeal.  

    The Doctrine of official or Executive Immunity has had a history of great press but minor successes in the courts.  The extension of this doctrine to serve as a defense against criminal prosecution has in the entire history of the United States found no greater authority than the ruling of Judge Melcher in the Franklin District Court.

   Judge Melcher’s creation of a new legal doctrine which immunizes constitutional officers from criminal prosecution while in office, flies in the face of the basic philosophy on which this country was founded, that no man is above the law, not even the chief executive.

Thomas Paine, Common Sense 57 (Philadelphia 1776).
  “…in America THE LAW IS KING. For as in absolute governments the King is Law, so in free Countries the law ought to be King; and there ought to be no other.  Thomas Paine, Common Sense 57 (Philadelphia 1776).

  There is no Kentucky court ruling or statutory enactment that provides support for Judge Melcher’s ruling. On the contrary there are examples of laws which provide for the prosecution of government officials. We suggest that Judge Melcher has confused civil immunity with criminal immunity.

   There is a long line of state and federal authorities which uphold executive, legislative and judicial immunity for official civil acts of the officer.  This immunity extends however only to immunity from civil lawsuits against the officer. Even then the doctrine is not a complete immunity, and the case law spells out many exceptions to the general theory of civil immunity.

    In 2002, two bright young Supreme Court law clerks wrote a very credible discussion of the current state of the law in Kentucky regarding immunity of public officials.  In their discussion, which they graciously allowed us to publish at, they discuss the landmark case in this area of the law, Yanero v. Davis, 65 S.W. 3d 510 (Ky. 11/21/2001) 
By Hays Lawson & Adam Shadburne
“ A. Official Immunity
When successfully invoked, official immunity is absolute immunity. But Yanero holds that the invocation of official immunity depends on both the position an individual holds and the function performed upon which a claim against the individual is based. For example, those entitled to official immunity include: legislators in the performance of their legislative functions, judges for all their judicial acts, and prosecutors with respect to the initiation and pursuit of prosecutions.[18] Yanero stresses that official immunity is afforded to public officials and employees only when there are strong public policy reasons to protect the office itself.[19] Its purpose is not to protect the public official or employee, but rather the office held.[20] the burden is on the defendant to show that he or she is entitled to absolute immunity.[25]
The official immunity discussion in Yanero serves to emphasize that official immunity is the exception when a public official is sued in his or her individual (capacity) …â€?
   Judge Melcher mentioned the term “official actâ€? in his oral ruling.  That term is frequently used in the discussion of immunity from civil lawsuits by legislative, judicial and executive officers.  This is also known as the doctrine of Sovereign Immunity. Again we must point out that there is no Kentucky case ruling that says this doctrine of civil immunity extends to criminal prosecutions.  The discussion by Lawson and Shadburne we believe correctly demonstrates that “immunityâ€?of public officials is almost case by case situation.  They demonstrate the history of the law which knocks down any assumption that “immunityâ€? is absolute…except for the state itself, and is almost never absolute, as to the person holding the office, for his personal acts or acts outside of his legal authority.

      In the reading of the law, one is required to cite authorities for their decisions.  The personal opinions of a particular judge is rarely considered, unless it is backed up with footnotes or citations of other cases which justify the author’s conclusion.  In determining the merit of a legal decision one would first look for rulings of the Kentucky court or the Kentucky legislature.  Next one would look at rulings of the U. S. Supreme Court and the Federal Courts.  Next one would look for rulings of other states, then other countries, and at some point along the way one would look for learned treatises of legal scholars.

When applying these standards to the Melcher ruling, we find no Kentucky case, no Kentucky statute, no Federal case, no case of a sister jurisdiction and no learned legal treatise that reaches the conclusion that a governor is immune from criminal prosecution while in office.

     In United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531 (1971) the U.S. Supreme Court demonstrated that an official act could be criminal and prosecuted under the criminal law.:

“Another count of the indictment against appellee alleges that he ‘asked, demanded, exacted, solicited, sought, accepted, received and agreed to receive’ money ‘for and because of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before him in his official capacity. . . .’
  This count is founded on 18 U.S.C. § 201(g), which provides that a Member of Congress who ‘asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him’ is guilty of an offense. Although the indictment alleges that the bribe was given for an act that was actually performed, it is, once again, unnecessary to inquire into the act or its motivation. To sustain a conviction it is necessary to show that appellee solicited, received, or agreed to receive, money with knowledge that the donor was paying him compensation for an official act. Inquiry into the legislative performance itself is not necessary; evidence of the Member’s knowledge of the alleged briber’s illicit reasons for paying the money is sufficient to carry the case to the jury. 
     There is a long line of cases which discuss official acts, these cases are almost universally related to issues of civil immunity.  Criminal defendants have often tried to hide behind the official nature of their acts while in office and have attempted to extend the civil protection for acts taken under color of their office to provide a defense against criminal charges.

In Kentucky the legislature has recognized that an official performing an official act can be criminally prosecuted for that act.  The legislature has adopted laws which specifically provide criminal penalties for official acts of an officer.  We have never seen any authority that a defense against these “official acts crimes� was successfully based on the theory created by Judge Melcher’s decision, that “all official acts are immune from criminal prosecution.�

  A good example of a crime which in fact requires as its very nexus the performance of an official act before prosecution cab be justified.

“ KRS 521.030 Soliciting unlawful compensation.  (1) A public servant is guilty of soliciting unlawful compensation when he requests a pecuniary benefit for the performance of an official action knowing that he was required to perform that action without compensation or at a level of compensation lower than that requested…â€?
 Let us emphasize this example again.  KRS 521.030 clearly authorizes a criminal penalty for the performance of an � official action�.  

     Under the legal doctrine created by Judge Melcher, the Commonwealth could never prosecute any public official who performed an official act as a result of bribery (until after he left office).  Under the Melcher doctrine, the power of the Executive would far exceed the powers of the Legislative branch or the Judicial branch of government which might attempt to limit such abuses of office.

     Under the Melcher Doctrine, the official who accepted a bribe could with impunity continue to engage in his illegal enterprise indefinitely.  He would remain immune from prosecution as long as the public continued to re-elect him, and the legislature couldn’t muster the courage to impeach him. 

We can envision a terrible result of such blanket immunity of a massive bribery scheme which involved all the key members of the legislature…if they were in on the deal, they surely wouldn’t have any incentive to impeach.

     The use of the concept of “official act immunity� as applied as a defense for criminal prosecution is a misreading and misapplication of the law.  The only exception we can find for this is for immunity of officials for comments they make while performing their official duties.  A Senator cannot be prosecuted for his comments during a debate which defame the Governor.  On the other hand, no one seriously advances the theory, that if the Senator pulls a pistol from his pocket and shoots the Governor dead, that he will be immune from prosecution (and presumable immune from arrest) until such time as he is impeached or the voters remove him from office.

Let us suppose that the Governor straps a suicide vest filled with dynamite to himself, and during the State of the State address says he is going to blow the place up in five minutes.  Under the Melcher extension of “official act immunity� the Governor while giving his State of the State address is performing an “official act� and therefore can’t be prosecuted (or we guess even subdued and carried out of the building).  

    Any close examination of the path that the Melcher “official act immunity� doctrine will take us reveals that such a theory would result in chaos.  


    The United States Supreme Court has clearly held that government officials are not immune from criminal prosecution while in office.  We present several authorities which discuss the limitations of “official immunity� as it applies to criminal prosecution defenses.

O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed. 2d 674, decided Jan. 15, 1974.

“We have never held that the performance of the duties of judicial, legislative or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights.  Cf. Ex parte Virginia, 100 U.S. 339, 25 L.Ed 676 (1879)

United States v. Brewster 8212 45, 408 U.S. 501, 92 S.Ct. 2531 (1971. “…the judicially fashioned doctrine of official immunity does not reach â€?so far as to immunize criminal conduct proscribed by an Act of Congress***â€?.

�it is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members***�
“ It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with Government agencies, assistance in securing Government contracts, preparing so-called ‘news letters’ to constituents, news releases, and speeches delivered outside the Congress.
The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech or Debate Clause. Careful examination of the decided cases reveals that the Court has regarded the protection as reaching only those things ‘generally done in a
Page 513
session of the House by one of its members in relation to the business before it,’ Kilbourn v. Thompson, supra, 103 U.S., at 204, or things ‘said or done by him, as a representative, in the exercise of the functions of that office,’ Coffin v. Coffin, 4 Mass. 1, 27 (1808). “
“The subsequent case of Long v. Ansell, 293 U.S. 76, 55 S.Ct. 21, 79 L.Ed. 208 (1934), held that a Member’s immunity from arrest in civil cases did not extend to civil process. Mr. Justice Brandeis wrote for the Court:
            ’Clause 1 (of Art. I, § 6) defines the extent of the immunity. Its language is exact and leaves no room for a construction which would extend the privilege beyond the terms of the grant.’ Id., at 82, 55 S.Ct. at 22.
           We recognize that the privilege against arrest is not identical with the Speech or Debate privilege, but it is closely related in purpose and origin. It can hardly be thought that the Speech or Debate Clause totally protects what the sentence preceding it has plainly left open to prosecution, i.e., all criminal acts.

  Whatever immunities or privileges the Constitution confers for the purpose of assuring the independence of the co-equal branches of government they do not exempt the members of those branches “from the operation of the ordinary criminal laws.�

“Criminal Prosecution of an Incumbent President� by John H. Kim, Esq.
 “While there are different legal opinions about the President, there is a general consensus that Vice President and other “civil officers� of the United States can be indicted and prosecuted while they are still in office, prior to any impeachment.

There are numerous  legal cases that have firmly established this rule. For instance in 1804, Aaron Burr, while Vice President, was indicted for the killing of Alexander Hamilton both in the state of New York and New Jersey. Burr never claimed an immunity from prosecution in the case, and had to serve out his office with the stigma of indictment.
  Likewise, Spiro T. Agnew, while Vice President, was investigated by the U.S. Attorney in Baltimore for allegedly receiving payoffs from contractors when Mr. Agnew as governor of Maryland. Before entering a plea bargain to a reduced charge and resignation, Vice President Agnew made a motion to the federal court to enjoin the grand jury proceedings against him on the ground of immunity while in office. In response, then Solicitor General Robert Bork filed a brief arguing that “considerations based upon the Constitution’s text, history and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.� resource on Daubert Test. Judge Nichols used Daubert to bar Shaken Baby Syndrome testimony.

Sunday, August 13th, 2006

Discussion of when Daubert should be applied, and the areas and topics which are exempt from Daubert reviews.  Discussion of Judicial Notice used as a method to avoid a Daubert hearing.  Also discussion of use of new Daubert standards to obtain introduction of medical causation evidence.


The effect of Daubert has found its way to the trial Courts of Kentucky.  Defense attorneys have recently sought to suppress evidence obtained by radar devices, blood tests, field sobriety tests, PBT’s and the Breathalyzer 5000.   In these cases they generally file a pre–trial motion to suppress that just demands a Daubert hearing.   These motions have not yet found their way to the appellate level, and it is appropriate that we examine the consequences of the Daubert ruling on these issues.

The ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L Ed2d 469 (1993), and its application to Kentucky criminal law by Mitchell v. Commonwealth, Ky. 908 SW2d 100, (l995) require that prior to the introduction of the results of field sobriety tests, that the court is required to conduct a Daubert hearing to test the scientific basis for these tests.

  Pursuant to Mitchell, infra, standards to be reviewed by the trial court in conducting a Daubert hearing include consideration of:

 1.      whether the scientific method or theory at issue has been generally accepted in the relevant scientific   community;

2.      whether the method or theory can be tested;

3.       whether the method or theory has been subjected to peer review and publication;

4.      whether there are known or potential rates of error;

5.      consideration of the existence and maintenance of standards controlling the technique’s operation.

         A review of the cases, appear to reveal that the court should consider these factors, but is not required to find that all of them have been proven.



           Before we subject the field sobriety tests to a Daubert hearing, let us review the ruling in Johnson v. Commonwealth,  case number 96-SC-0577-M 12/16/1999.   Johnson v. Commonwealth held:

        “Daubert also recognized that some scientific methods, techniques and theories are so firmly established as to be proper subjects of judicial notice pursuant to FRE 201(b)(2).(See KRE 201)…thus it was held that once an appropriate appellate court holds that the Daubert test or reliability is satisfied, lower courts can take judicial notice of the reliability and validity of the scientific method, technique or theory at issue.

 Courts are “right to admit or exclude much evidence without ‘re-inventing the wheel’ every time by requiring the parties to put on full demonstrations of the validity or invalidity of methods or techniques that have been scrutinized well enough in prior decisions to warrant taking judicial notice of their status.�


      “We recently held in Fugate v. Commonwealth, supra, that the scientific reliability of the RFLP and PCR methods of DNA testing have been sufficiently established that a Daubert hearing is no longer required before such evidence is admissible at trial. For other types of scientific methods and theories which have been recognized as reliable by our courts see  Commonwealth v. Wirth, 936 S.W.2d 78 (l996) (breath testing to determine blood alcohol content); Bartlett v. Commonwealth, ex rel. Callowav., Ky. 705 S.W.2d 470 (1986) and Perry v. Commonwealth. Ex rel. Kessinger, Ky. 652 S.W.2d 655 (l983) (HLA blood typing to determine paternity): Garr v. Commonwealth 463 S.W2d 109 (l971), (fiber analysis; Morris v. Commonwealth 208 S.W.2d 58 (l948Z) (ballistics analysis; Shelton v. Commonwealth 134 S.W.2d 653 (l939) (fingerprint analysis).  On the basis of these decisions, trial judges in Kentucky can take judicial notice that those methods or techniques have achieved the status of scientific reliability.�

                                                 Also JOHNSON CONTINUES:             

       “As previously noted, evidence of hair analysis by microscopic comparison has been admissible in the Commonwealth for many years.  Wilhite v. Commonwealth of Ky., 574 S.W.2d 304 (1978)…

 “Although we have never specifically addressed the scientific reliability of this method of hair analysis, we must assume that it at least satisfied the test of general acceptance; for otherwise , the evidence would never have been admitted in the first place.�

 “ The absence in our previous opinions of any in-depth analysis under the “general acceptance� test was probably due to the overwhelming acceptance of this procedure as a reliable scientific method for the past fifty years….

 Based upon the overwhelming acceptance of this evidence by other jurisdictions, as well as our own history of routine admission of this evidence at trial, trial courts in Kentucky can take judicial notice that this particular method or technique is deemed scientifically reliable.�



 Let us now examine in more detail the requirements of the Kentucky Rules of Evidence relating to judicial notice.

(a)           Scope of rule.  This rule governs only judicial notice of adjudicative facts.


 (b)    Kinds of facts.  A judicially noticed fact must be one not subject to reasonable dispute in that it is either:


(1)    Generally known within the county from which the jurors are drawn, or, in a nonjury matter, the county in which the venue of the action is fixed; or


(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.


(c)        When discretionary.  A court may take judicial notice, whether  requested or not.                           (d)      When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

      (e) Opportunity to be heard.  A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the  tenor of the matter noticed.  In the absence of prior notification, the request may be made after judicial notice has been taken.

      (f)      Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

      (g)    Instructing the jury.  The court shall instruct the jury to accept as conclusive any fact judicially noticed

   Another basis for the admission of this evidence is the “common-sense� or  “generally known� standards found in Kentucky case law. See: Spears v. Commonwealth, 253 S.W.2d 570 (Ky. l952); Casey Co. Board of Education vs.Luster, 282 S.w.2d 333 (Ky. l955), Frank v. Silvers, 414 S.W.2d 887 (Ky. l967).

  These cases uphold the proposition that things need not be beyond dispute to be part of a court’s reasoning in taking judicial notice of a fact that is generally known to all or is a matter of common-sense.

 (“Kentucky appellate courts have used the terms “judicial notice and “common knowledge� interchangeably, to refer to assumptions about human behavior and natural phenomena to support the holding in a case.�*)

  Note what the court said in Johnson:

         “Although we have never specifically addressed the scientific reliability of this method of hair analysis, we must assume that it at least satisfied the test of general acceptance; for otherwise , the evidence would never have been admitted in the first place. The absence in our previous opinions of any in-depth analysis under the “general acceptance� test was probably due to the overwhelming acceptance of this procedure as a reliable scientific method for the past fifty years….Based upon the overwhelming acceptance of this evidence by other jurisdictions, as well as our own history of routine admission of this evidence at trial, trial courts in Kentucky can take judicial notice that this particular method or technique is deemed scientifically reliable.�



But when Daubert is required:   The Ky. Supreme has applied Daubert to criminal law.


  908 S.W.2d 100 MITCHELL V. COMMONWEALTH (S. Ct. 1995)

In 1993, the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., U.S., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), analyzed Fed. R. Evid. 702 in relation to Frye v. United States, 54 App. D.C. 46, 293 F. 1013. Fed. R. Evid. 702 and KRE 702 contain the same language. The United States Supreme Court held that Fed. R. Evid. 702 supersedes the Frye standards.

“Accordingly, we adopt the standard of review set forth in Daubert. We overrule the portion of Harris v. Commonwealth, Ky., 846 S.W.2d 678 (1992), that conflicts with Daubert v. Merrell Dow Pharmaceutical Inc. However, it must be emphasized that we retain as much of Harris v. Commonwealth that limits the determination of admissibility of DNA evidence to a case-by-case basis. “

                            (THE ESSENSE OF DAUBERT)

When “faced with a proffer of expert scientific testimony,” the trial judge must determine at [a preliminary hearing] “whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 125 L. Ed. 2d at 482.

According to the United States Supreme Court, the trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts in issue. Id.

“In order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation — i.e., ‘good grounds,’ based on what is known. In short, the requirement that an expert’s testimony pertain to ‘scientific knowledge’ establishes a standard of evidentiary reliability.”

 Id. at 481. In addition, “Rule 702′s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” “Id. at 482.

 In applying Rule 702, “lower courts should look at whether the {S.W.2d 102} scientific knowledge being presented has been tested, whether it has been subject to peer review and publication,

 what the evidence’s known rate of error is,

 and whether the evidence has a particular degree of acceptance in the relevant community.” Abramson at § 27.83 n.2 (Supp. 1994) (summarizing Daubert, 125 L. Ed. 2d at 482-485).   

 ”In order to understand the factors better, it is important to examine Daubert in further detail. First, according to the United States Supreme Court, lower courts should examine whether the theory or technique can be tested. Daubert, 125 L. Ed. 2d at 482-83. A second consideration is “whether the theory or technique has been subjected to peer review and publication.” Id. at 483. “Submission to the scrutiny of the scientific community is a component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected.” Id.    The United States Supreme Court noted that publication alone does not necessarily correlate with reliability.      An additional consideration, “in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, . . . and the existence and maintenance of standards controlling the technique’s operation.” Id. 

Finally, “‘general acceptance’ can yet have a bearing on the inquiry.” Id. “Widespread acceptance can be an important factor in ruling particular evidence admissible, and ‘a known technique that has been able to attract only minimal support within the community[]‘ . . . may properly be viewed with skepticism.” Id. at 483 (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)). 

“To summarize, pursuant to KRE 702 and Daubert, expert scientific testimony must be proffered  (BEFORE INTRODUCTION,) to a trial court. The trial court judge must conduct a preliminary hearing on the matter utilizing the standards set forth in Daubert.”

On appeal, the standard of review is whether in deciding the admissibility of the evidence the trial judge abused his or her discretion. 



Before Daubert  the admissibility of expert testimony was governed by the test set forth in Frye v U.S., 293. Fed. 1013, (D.C. Cir 1923).

Frye focused on the experts conclusions.  Frye demanded that an expert’s theories and conclusions be generally accepted by the scientific community regardless of the scientific soundness of his or her methodology and reasoning.

In contrast Daubert does not require that an opinion be generally accepted by the scientific community, so long as the methods used by the expert to arrive at his or her conclusions are scientifically sound.

 In shifting the emphasis from the expert’s opinion to the methods used to arrive at that opinion, Daubert no longer requires an expert’s opinion to be correct.  In fact, under Daubert a court cannot even consider the scientific correctness of an opinion because “..(i)t is not the trial court’s role to decide whether an expert’s opinion is correct. See:  Smith v. Ford Motor Co. 215 F2d 713 (7th. Cir. 2000) and Blobetti v. Sandoz Pharmaceuticals Corp. 111 F.Supp 2d 1174, 1180 (N.D.ald 2000)

                                                 FACTORS DETERMINING SCIENTIFIC SOUNDNESS:

An expert opinion is scientifically sound under Daubert when it is based on scientifically valid techniques, theories, methodology, and data. The Daubert court suggested various factors to determine the scientific validity of opinions and the techniques and methodology upon which they are based:          (The following are mentioned in Daubert)

1.      Whether the opinion can be and has been tested;

2.           Whether the expert’s conclusions rely upon subjective interpretation;

3.      Whether the opinion has been subjected to peer review and/or publication;

4.            Whether it has a known or potential rate of error;

5.      Whether it is generally accepted by the relevant scientific community;

6.      Whether the opinion is based on a technique for which there exist, and are maintained, standards controlling            the technique’s operation;

7.      The relationship of the technique to methods that have been established to be reliable;

8.           Whether the opinion was based on research independent of litigation or developed expressly for purposes of testifying, and:

9.          Qualifications of the expert

In short the courts would like to see that “an expert’s pro-offered testimony grows out of pre-litigation research or that the expert’s research has been subjected to peer review…(or that he has reached his conclusion based on)…some objective source – a learned treatise, the policy statement of a professionial association, a published article in a reputable scientific journal or the like –to show that they have followed the scientific method, as it is practiced by a recognized minority of scientists in their field� (See Daubert).

Proving legal causation requires proof that a particular agent caused a particular organ to malfunction. Causation does not require knowledge of the pathophysiology, or the disease process, so long as it is clear that the etiologic agent somehow caused the patient’s signs and symptoms.

“Not knowing the mechanism whereby a particular agent causes a particular effect is not always fatal to a plaintiff’s claim. Causation can be proved even when we don’t know precisely how the damage occurred, if there is sufficiently complellng proof that the agent must have caused the damage somehow.�   (See Daubert)


      Proving a disease process is a three step procedure:

1.     prove that the patient’s signs and symptoms are due to a disease process affecting a particular organ of the body.


2.     prove the “general causationâ€?—that the offending agent (i.e. the negligence of the defendant)…was capable of causing the plaintiff’s medical illness.

            Proving general causation generally requires epidemiological, animal and laboratory studies, preferably published in peer-reviewed journals.  See Tanner v. Westbrook, 174 F.3rd. 542 (5th. Cir. 1999).   While the courts in general favor large epidemiological studies..�This requirement for publication does not exclude situations where the science is so new when the illness or its etiology are so new that scientists have not yet had time to study the disease for publication.. See: Turner v. Iowa Fire Equipment Co, 229 F3d 1202, 1209, (8th. Cir. 2000). Heller v. Shaw Industries, Inc. 167 F3rd. 146, 155 (3rd. Cir. 1999)  It is been held that case studies alone will not suffice to prove general causation.    Also extrapolating animal studies to humans has been rejected by some courts. Hall v. Baxter Healthcare Corp., 947 F Supp 1387 (D.Or.1996)

            To introduce proof in the absence of a large epidemiological study, the courts have allowed evidence that studies demonstrating that the agent is capable of causing the same phatophysiology as that suffered by the plailntiff. (Examples:  liver damage from Tylenol, inhalation damage from talc, cessation of blood pressure medications causing heart attack ex: procardia stopped to cure patient’s sexual disfunction.)

This requires two proofs: (1) that the plaintiff is suffering a specific pathophysiology, and

                                       (2) that the agent can cause that same pathoplysiology.

                                       See:  Westberry v. Gummi, 178 F.3rd. 257 (4th. Cir. 1999).

3.     only then can “specific causation� be addressed…(i.e. was the agent the cause of this plaintiff’s illness in this case.


           Federal courts, following the principles set forth in Daubert appear to have recognized the medical concept of pathophysiology, the process by which an agent causes an organ of the body to malfunction. Faced with cases in which there is insufficient scientific proof establishing or refuting general causation, the courts have fashioned a sensible approach using pathophysiology as a substitute for general causation so long as the plaintiff is shown to be suffering the same pathophysiology.