Archive for August, 2006

Greenup Circuit Judge Lewis Nichols, applies Daubert test to bar Shaken Baby Syndrome testimony.

Sunday, August 13th, 2006

By Andrew Wolfson – Reprinted from The Courier-Journal
GREENUP, Ky. — After 3-month-old Evan Galloway suddenly collapsed on Dec. 29, 2003, there were no bruises found on his body and no broken bones or other external signs of abuse.

But six months later, his father, Raymond Martin, 35, was indicted on an assault charge, accused of “excessively and violently shaking” his son by investigators who found Evan had the classic signs of shaken-baby syndrome — bleeding in the brain and behind both eyes.

Since the syndrome was first observed in the early 1970s, doctors — and police — have assumed that if a child collapses or dies suddenly and bleeding is found inside the skull with no other injuries, severe shaking is the cause and the last person to care for him is to blame.

But when Martin’s fate is decided in a Greenup Circuit courtroom in November, there likely will be no mention of shaken-baby syndrome.

In what experts say is the first such ruling in the nation, a Greenup Circuit Court judge has barred the prosecution from introducing expert testimony that a baby was injured by shaking, unless there is other evidence of abuse.

“To allow a physician to diagnose shaken-baby syndrome with … no other evidence of manifest injuries is to allow a physician to diagnose a legal conclusion,” Judge Lewis Nicholls said.

Nicholls issued the same ruling in the case of another defendant, Christopher A. Davis, 27, who is charged with criminal abuse of his son, who was 4 months old when allegedly shaken in December 2004.

Both Davis and Martin have pleaded not guilty. Each faces five to 10 years in prison if convicted. Davis is scheduled for trial Nov. 13, a week after Martin.

Though the shaken-baby diagnosis is accepted by the American Academy of Pediatrics and the National Association of Medical Examiners, Nicholls said in his 24-page ruling in April that it hasn’t been scientifically proven.

He cited biomechanical studies that have concluded it’s impossible for an adult to shake an infant hard enough to cause the injuries used to diagnose the syndrome — hemorrhaging behind both retinas and hematomas, or pools of blood, in the membranes of the brain.

In one of the studies he cited, college football players shaking lifelike models of 1-month-old babies couldn’t generate the force necessary to cause brain injuries.

In part because of such findings, former Kentucky chief medical examiner Dr. George Nichols, once a fervent believer in the syndrome, now says he is persuaded that infants cannot suffer brain injuries by shaking alone. He also said autopsies he performed usually showed that the death of a child in such cases was actually caused by impact injuries.

Greenup Commonwealth’s Attorney Cliff Duvall said he will try to proceed with the prosecutions of Martin and Davis, although if he’s unable to present any expert testimony he will have to drop them both.

Nicholls’ ruling isn’t binding on other courts, but defense lawyers said it could influence other cases.

And child advocates — including Dr. Allen Brenzel, a pediatrician and psychiatrist at the University of Kentucky who consults on abuse cases for the state Cabinet for Health and Family Services — said it would be devastating if other courts adopt the same rule.

“It would interfere with our ability to protect kids,” he said.

Unjust convictions?
Nichols, who as medical examiner from 1977 to 1997 testified for the prosecution in shaken-baby cases, last year announced at a meeting of public defenders that he would testify about his new conclusions for any offender previously convicted through his testimony.

“I guarantee there are people in prison who shouldn’t be there,” he said in an interview.

So far there have been no takers; the Department of Public Advocacy says it has only one shaken-baby case on appeal, and the science behind the diagnosis is not at issue.

The National Center on Shaken Baby Syndrome, based in Ogden, Utah, says that about 1,200 to 1,400 children a year in the United States are treated for shaking injuries, and about 25 to 30 percent of them die.

The Kentucky Cabinet for Health and Family Services doesn’t track shaking injuries specifically but says seven deaths were attributed last year to the broader category of inflicted head injury.

Pediatric experts say the biomechanical models used in studies challenging the syndrome were not lifelike enough to produce valid results. And they say attacks on the diagnosis are orchestrated by defense lawyers to produce reasonable doubt for their clients.

The American Academy of Pediatrics says that violent shaking of a child, even if the head doesn’t strike another surface, can cause the vessels around the brain to stretch and rupture. In a 2001 policy statement, the organization said that doesn’t occur with short falls or seizures, and unless there is some other history to explain them, child abuse may be presumed.

Dr. Carole Jenny, a Brown University professor of pediatrics who is a member of the pediatric group’s Committee on Child Abuse and Neglect, said she is so confident in that finding that she would convict a member of her own family based on it.

She said the syndrome can’t be proved in controlled experiments because researchers can’t shake real babies. But she said the diagnosis has been borne out by thousands of parents who have brought injured children to a hospital and told doctors what they did — shook a child until the child collapsed in their arms.

Jenny said shaken-baby syndrome is the only explanation for massive brain injuries to infants who can’t move — or fall — on their own.

“Kids’ heads don’t explode spontaneously,” she said.

Diagnosis questioned
Evan Galloway had just gotten a clean bill of health from his pediatrician on the day that Martin agreed to watch him while his ex-wife was at work.

Martin told investigators later that when Evan awoke from a nap, he was limp and appeared to have had a seizure. He said he sprinkled water on the baby’s face and shook him to rouse him.

Evan’s brain swelling subsided in a couple of weeks, but he was left with crossed eyes and other impairments, according to court records.

At a hearing in March, Martin’s public defender, Sam Weaver, tried to show the shaken-baby diagnosis isn’t reliable enough evidence on which to send somebody to prison. He presented one expert, Dr. Ronald Uscinski, an associate professor of neurosurgery at Georgetown University who has lectured on the syndrome in England, Japan and the United States.

As recounted in Nicholls’ order, Uscinski testified that the medical community went into a “frenzy,” cautioning parents never to shake a child, after a doctor presented “largely circumstantial” evidence about the syndrome in 1974 in the journal PEDIATRICS.

Uscinski said the findings were supported by a study of rhesus monkeys that was flawed in part because the monkeys may have struck their heads on the apparatus that shook them.

And he testified that in 1987, University of Pennsylvania researchers, in a study on human models, found that even “vigorous shaking” was unlikely to cause fatal injuries.

Uscinski noted that another study published last year in Forensic Science International concluded that shaking alone would cause broken necks in infants before bleeding in the eyes and brain. He also testified that researchers have found that even seemingly innocuous events like falling off a bed or chair can later produce bleeding in the brain.

Appearing for the prosecution, Dr. Betty Spivack, a deputy Kentucky medical examiner who has published her own research on the syndrome, said that retinal hemorrhages have a much higher correlation with intentional, rather than accidental, head trauma.

But Nicholls — who was a prosecutor before being elected to the district bench in 1984 and to circuit court in 1994 — said hemorrhages behind the eyes don’t prove that a child was shaken, and that a correlation doesn’t prove cause and effect.

Research needed
During a recent visit to his home, Evan Galloway, who is nearly 3, smiled and chatted as he played with his toys. But he wears thick glasses to correct his vision, and his mother, Kelly Galloway, said he can’t climb stairs and sometimes trips when he runs. She takes him for physical and developmental therapy several times a week.

His father has been released on bail but must stay away from Evan as a condition of release. Weaver said Martin would like to be reunited with his son; he said he directed him not to comment on the charge against him.

Meanwhile, experts say more research needs to be done on abusive head trauma, even as experts debate whether shaking alone can cause it.

Each case must be explored individually, said Dr. Joseph Prahlow, a forensic pathologist in South Bend, Ind., who is vice president of the National Association of Medical Examiners. “The key is to do as thorough an investigation as possible and not to jump to conclusions,” he said.

Reporter Andrew Wolfson can be reached at (502) 582-7189.
See: resource on Daubert Test. Judge Nichols used Daubert to bar Shaken Baby Syndrome testimony.

LawReader posts 23 cases of the Ky. Ct. of Appeals released on August 11, 2006.

Friday, August 11th, 2006

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1 11.42 motion denied
2 the existence of a durable power of attorney cannot prevent the institution of guardianship proceedings. —  the courts of the Commonwealth have inherent power to impose attorney’s fees and related expenses on a party as a sanction for bad faith conduct, regardless of the
existence of statutory
3 as the QDRO was only an enforcement of that order, it did not amount to an improper modification of it.
4 The court is also at liberty to interpret evidence as it sees fit. Its finding may not be disturbed on appeal if it is supported by substantial evidence
5 A trial court enjoys broad discretion to determine custody of children, and its decision will not be disturbed in the absence of clear error. As the finder of fact, it is in the best position to observe the parties
6 the family court did not abuse its discretion in naming the father as the primary residential custodian
7 While the court made the observation the RCr 11.42 motion represents a complete and total waste of judicial resources and is a farce upon the legal system?, the court cited to and applied the Strickland test..
8 professional degree can be considered when the court is dividing marital property and allocating responsibility for debt.
9 TO BE PUBLISHED: Since Poe was not arrested at that point, his other two arguments that the police lacked probable cause to arrest him and that his actions were the result of rightfully resisting an unlawful arrest are baseless
10 disputed evidence provided the prosecutor with a sufficient basis to support his statements in his closing argument that Mason had been untruthful to the jury.
11 Sex offenders  failure to complete the program is good and sufficient cause to revoke the period of conditional discharge
12 When a resident and a non-resident business entity engage in interstate business transactions with each other in which the non-resident places orders with the resident and the resident manufactures the product and ships it to the nonresident, it is our view that each of them have transacted business in both states.
13 Appellants failed to preserve their objection to the trial court’s calculation of damages
14 the court incorrectly relied on the medical opinion of the mother’s psychiatrist that she was able to care for the child safely. The court issued incomplete findings of fact
15 Once Castile admitted his crime, any need to determine whether A.L.’s statements concerning the abuse were reliable became moot.
16 this  was an argument that could have been raised by Davidson in his RCr 11.42 motion. Therefore, pursuant to the Gross case, he was precluded from raising the issue in a CR 60.02 motion.
17 “Alleged defamatory statements must be construed in the context of the entire communication.? Biber, 155 S.W.3d at 738. “Pure opinion, which is absolutely privileged, occurs where the commentator states the facts on which the opinion is based, or where both parties to the communication know or assume the exclusive facts on which the comment is clearly based.?
18 the McCracken Family Court did not err in denying  motion to modify the custody arrangement so as to name her as the primary custodian of her minor child
19 and a sheriff may revoke prior appointments of deputy at-will where the county has not established a deputy sheriff merit board.
20 Before a custody decree may be modified, the court must find that modification is necessary to serve the best interests of the child. See KRS 403.340(3). In determining the best interests of the child, the court must consider all relevant factors, including the nine factors listed in KRS 403.270(2).
21 Viewing the evidence as a whole it is beyond doubt that admission of the evidence, if it was error, was harmless.
22 His signature on the “Motion to Enter Guilty Plea? affirms his understanding of his plea and that it was freely, knowingly, intelligently, and voluntarily made.
23 TO BE PUBLISHED We cannot agree that the Cabinet is barred by the doctrine of issue preclusion from introducing evidence that might identify R.H. as the perpetrator of the prior sexual abuse. This evidence is highly relevant to establish whether M.A.H. is an abused or neglected child.

Special Judge David Melcher dismisses all charges against Gov. Fletcher. Rules that a Governor cannot be prosecuted until he is first impeached. Calls for Impeachment will surely follow.

Friday, August 11th, 2006

    Governor Fletcher’s supporters were reported on yesterday to be organizing victory parties in anticipation of  Judge Melcher’s ruling dismissing all criminal charges against the Governor.  Judge Melcher did not disappoint the Governor.
       The Lexington Herald reported on
“A judge this morning blocked prosecution of Gov. Ernie Fletcher on three misdemeanor charges that he illegally rewarded political supporters with protected state jobs.
Special Franklin District Judge Dave E. Melcher said Fletcher cannot be prosecuted for official acts unless he is impeached.
Melcher gave his ruling from the bench at Franklin District Court and will issue an official order Aug. 18.
Fletcher was indicted May 11 by a grand jury on charges of criminal conspiracy, official misconduct and violating a prohibition against political discrimination. “
         Judge Melcher’s formal written opinion will not be released until August 18th.  The public will not know until then the legal basis he used to justify his ruling.  This ruling is completely novel and will surely be appealed. 
      Legal scholars have written extensively on this issue, and the Federal courts have held in a  long line of cases that officials could be prosecuted prior to an impeachment process.

In other words, impeachment proceeding and criminal prosecution are two distinct, separate processes, although both can be related to each other. According to U.S. District Judge Gerhard Gesell:
“Impeachment trials are sui generic: in several instances in the Constitution, impeachment is distinguished from criminal proceedings….The Framers understood that
impeachment trials were fundamentally political….?

This means that there can be a prosecution without an impeachment following, and there can be an impeachment without a prosecution following, and there is no double jeopardy involved in either of these situations.  The impeachment process is a civil proceeding that can only punish by removal from office.  The criminal prosecution process is of course criminal.   They are both independent actions and one can not restrict the other.

Prior Melcher rulings:

   Judge Melcher has ruled in favor of the Fletcher administration in every case that has come before him.

      First on July 14th. he dismissed an indictment of Transportation Secretary Bill Nighbert for charges rising out of his alleged threat to an employee who had testified against him.  The alleged threat was made after Governor Fletcher issued a “blanket pardon? to members of his administration, even for charges which had not been investigated or charges filed.  Melcher reasoned that part of the fact situation considered by the Grand Jury was covered by the Governor’s pardon, therefore he reasoned, that any future criminal acts arising out of information considered by the pre-pardon Grand Jury must also be covered by the pardon.

    Secondly, Judge Melcher ruled that state law, which by definition applied only to executive  agencies, also applied to the Constitutional office of the Attorney General and prevented the Attorney General from participating in the prosecution of Governor Fletcher since it  gave the appearance of a conflict of interest since General Stumbo “might? run for  Governor in 2007.  Attorney General Stumbo had not announced any intentions to run for  Governor but had not ruled it out.  The strange ruling by Judge Melcher, held that Stumbo really had not violated that law, but he was ordering him to refrain from participating in the prosecution.  He allowed the staff attorneys of the Attorney Generals  Office to continue with the prosecution.

   Now Judge Melcher has completed the dream trifecta for Governor Fletcher by dismissing three misdemeanor indictments against the Governor on a novel legal theory that has no precedent in Kentucky and which has been overruled in numerous Federal Court decisions and by the U.S. Supreme Court.  Melcher reasoned that since the Constitution of Kentucky provides for the impeachment of constitutional officers, they can never be prosecuted first.   There is no written law, statute or constitutional provision which gives authority to that conclusion. 

   Legal scholars have recognized in many cases, see authorities below, that the impeachment  process and criminal  prosecutions are two distinct procedures.  The The chance of impeaching Governor Fletcher while his party has a majority in the State Senate has in the past been viewed as highly unlikely.  However, the recent widening gulf between Senate President David Williams and Governor Fletcher may present a potential impeachment in a new light.  Many in the Republican party do not want Gov. Fletcher to run again in 2007.  What better way to hamstring his gubernatorial efforts than to conduct a long public impeachment trial.  It may well be that once again the Gov. has made a bad situation worse.  He may have jumped out of the frying pan into the fire.
          Under Judge Melcher’s reasoning, a constitutional officer could run off with the State’s treasury (old Honest Dick Tate is surely smiling somewhere), or  commit murder and there could be no Prosecution until the Legislature impeached him. Such a procedure removes the judiciary from their constitutional role.  This theory  ignores the prosecution of  former Gov. Otto Kerner of Illinois.  This theory ignores the investigation of Vice-President Spiro Agnew for bribery.   There was no application of the “impeachment first? doctrine as cited by Judge Melcher, that protected them.

      Chief Justice Joseph Lambert, included a well reported footnote in a recent decision regarding “civil? immunity of state officers.  In that footnote the Chief Justice made reference that some legal scholars made a strong argument for the “impeachment first?

theory.  That footnote by Justice Lambert was dicta, or a comment not affecting the facts of the case then decided, and is not therefore citable as controlling law or authority.

LawReader wrote at the time of the news stories which suggested that Justice Lambert was telegraphing a message to the Governor were misreadings of  the footnote.  Those critics of Justice Lambert will now be given another point to argue.  Special Judge David Melcher was appointed by Justice Lambert to preside over the Fletcher prosecution.

Judge Melcher dismisses Nighbert Indictment due to blanket pardon
July 14th, 2006
FRANKFORT, Ky. – A judge dismissed an indictment against Transportation Secretary Bill Nighbert on Friday because he was covered by a blanket pardon issued by Gov. Ernie Fletcher last year.
Special Judge David E. Melcher said the grand jury that indicted Nighbert based the charges partially on alleged conduct covered by Fletcher’s pardon.
Melcher said he is duty bound to follow instructions from the Kentucky Supreme Court, which ruled previously that when a pardon has been issued, no court has the right to continue legal proceedings against the pardoned person.
Tuesday, June 20th, 2006
U.S. v. Isaacs, 493 F.2d 1124 (C.A.7 (Ill.), 1974)
Discussion of Executive Privilege and Immunity from Prosecution
Criminal Prosecution of an Incumbent President
 The most interesting discussion is in the case of U.S. v. Isaacs, wherein the 7th. Circuit Court of Appeals upheld the conviction of former Gov. Otto Kerner.   Kerner was appointed as a Federal Judge and prosecuted for actions taken while he was Governor of Illinois.
He raised the issue that he could not be prosecuted criminally prior to a formal impeachment conviction.  The 7th. Circuit denied that defense, and cites a long list of officials who were prosecuted prior to their impeachment. The weight of the authorities, hold for the proposition that there is no such legal theory as “absolute immunity from criminal prosecution of a public official? recognized by the courts in the United States.
U.S. v. Isaacs, 493 F.2d 1124 (C.A.7 (Ill.), 1974)
  (LawReader Comment: This case includes prosecution of Otto Kerner. Otto Kerner was the Democratic governor of Illinois in 1960. Later he was later appointed a Federal Judge.  While a Federal Judge he was prosecuted for actions taken as governor. His prosecution and conviction occurred prior to impeachment proceedings. The Court held that a civil official does not have the right to forestall a criminal prosecution prior to impeachment.)

 Following a six-week trial before a jury in the Northern District of Illinois, Theodore J. Isaacs and Otto Kerner, Jr., were found guilty on February 19, 1973 of a variety of offenses arising out of their activities on behalf of certain Illinois racing interests in return for bribes of more than $150,000 each. Isaacs and Kerner were both convicted on all those counts of an indictment which charged an 18 U.S.C. 371 conspiracy to violate the Travel Act, 18 U.S.C. 1952 and the Mail Fraud Act, 18 U.S.C. 1341 (Count I); use of interstate facilities in furtherance of bribery, 18 U.S.C. 1952 (Counts II through V) and mail fraud, 18 U.S.C. 1341 (Counts VI through XIII). Kerner was also convicted of perjury before a grand jury, 18 U.S.C. 1623 (Count XIV), false statements to Internal Revenue agents, 18 U.S.C. 1001 (Count XV), tax evasion, 26 U.S.C. 7201 (Count XVI) and false statement in a tax return, 26 U.S.C. 7206(1) (Count XVII). Isaacs was also convicted of tax evasion, 26 U.S.C. 7201 (Count XVIII), and false statement in a tax return, 26 U.S.C. 7206(1) (Count XIX).

 Turning the pages of history, the Supreme Court said in an 1882 decision, United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 261, 27 L.Ed. 171, that:
      No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.
       It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
      Burton v. United States, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057, a United States Senator was convicted, among other things, of having taken a bribe in violation of what is now 18 U.S.C. 201. He argued that conviction would expel him from the Senate and that under the Constitution the Senate had sole power of expulsion. The Court rejected the contention, quoted with approval from United States v. Lee, and found no violation of the principle of separation of powers.
      Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100, Mr. Justice Douglas said in his dissenting opinion, Ibid. at 140, 90 S.Ct. at 1682: ‘If they (federal judges) break a law, they can be prosecuted.’ Mr. Justice Black in his dissent said, Ibid. at 141, 90 S.Ct. at 1683, that ‘* * * judges, like other people, can be tried, convicted, and punished for crimes * * *.’
     United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 507, a Senator was charged with a 201 violation. The trial court held that the Speech or Debate Clause precluded criminal prosecution. The Supreme Court reversed and found no constitutional violation. The Court said, 408 U.S. at 520, 92 S.Ct. at 2541:

        The sweeping claims of appellee would render Members of Congress virtually immune from a wide range of crimes simply because the acts in question were peripherally related to their holding office. Such claims are inconsistent with the reading this Court has given, not only to the Speech or Debate Clause, but also to the other legislative privileges embodied in Art. I, 6.

        Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583, was concerned with the validity of a subpoena requiring the assistant of a Senator to appear as a witness before a federal grand jury. The Senator intervened and asserted a violation of his constitutional privileges. With reference to the Freedom from Arrest Clause, the Court said, 408 U.S. at 615, 92 S.Ct. at 2622:

        It is, therefore, sufficiently plain that the constitutional freedom from arrest does not exempt Members of Congress from the operation of the ordinary criminal laws, even though imprisonment may prevent or interfere with the performance of their duties as Members. * * *
Indeed, implicit in the narrow scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment that legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons.

        Finally, we have O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, decided January 15, 1974. The Court, although its language was general and perhaps dictum, touched on the vulnerability of judges to criminal process, and said, 414 U.S. 488, 503, 94 S.Ct. 669, 680, 38 L.Ed.2d 674:

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

• On the contrary, the judically fashioned doctrine of offical immunity does not reach ’so far as to immunize criminal conduct proscribed by an Act of Congress * * *’ Gravel v. United States, 408 U.S. 606, 627, 92 S.Ct. 2614, 2628, 33 L.Ed.2d 583 (1972).

        Kerner’s argument for the privilege which he claims, is not supported by ‘the precise words used in any prior case, and surely not on the sense of those cases, fairly read.’ Brewster, 408 U.S. at 516, 92 S.Ct. at 2539.

We conclude that whatever immunities or privileges the Constitution confers for the purpose of assuring the independence of the co-equal branches of government they do not exempt the members of those branches ‘from the operation of the ordinary criminal laws.’

Criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government. Historically, the impeachment process has proven to be cumbersome and fraught with political overtones. We believe that the independence of the judiciary is better served when criminal charges against its members are tried in a court rather than in Congress. With a court trial, a judge is assured of the protections given to all those charged with criminal conduct. The issues are heard in a calm and reasoned manner and are subject to the rules of evidence, the presumption of innocence, and other safeguards. 408 U.S. at 519-520, 92 S.Ct. 2531.

 Kerner argues that trial and conviction of a federal judge frustrates the separation of powers concept because the executive branch would indict and prosecute. The Constitution makes all ‘civil officers’ subject to impeachment. The issue, then, is whether any civil officer is subject to pre-impeachment indictment. This presents no separation problem. Brewster points out, 408 U.S. at 522, n. 16, 92 S.Ct. 2531, the barriers, such as indictment, burden of proof, and presumption of innocence, which a prosecutor must face. With co-equal branches of government, the potential of abuse by any one of them is inherent. However, the system of checks and balances, a free press, and public resentment toward any attempted domination all work to preserve the guaranteed independence of each branch.
      On the basis of the text of the Constitution, its background, its contemporaneous construction, and the pragmatic consequences of its provisions on impeachment, we are convinced that a federal judge is subject to indictment and trial before impeachment and that the district court had jurisdiction to try defendant Kerner.
Discussion of Executive Privilege and Immunity from Prosecution
COLUMBIA UNIVERSITY PRESS – This entry is from Wikipedia, the leading user-contributed encyclopedia:
The use of executive privilege decreased during the 1960s, but it became the crux of the constitutional crisis created by Watergate, a series of scandals involving President Richard M. Nixon and his associates. When Congress sought to obtain White House tapes containing Oval Office conversations, Nixon refused to turn them over, claiming that the tapes were subject to absolute executive privilege and asserting that the judiciary had no authority to order their production or inspection. Eventually the dispute reached the Supreme Court, where, in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court ruled against Nixon.

While acknowledging the importance of the president’s claims, the Court stated that “neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.?
 In its opinion, therefore, the Court explicitly recognized the president’s authority to assert executive privilege, but ruled that the use of executive privilege is limited, not absolute. Furthermore, the Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privilege. While the Court affirmed the use of executive privilege, therefore, it determined that in this case, the right of the U.S. people to full disclosure outweighed the president’s right to secrecy. This momentous decision soon led to Nixon’s resignation from the office of president.

                      COLUMBIA UNIVERSITY PRESS –
EXECUTIVE PRIVILEGE, exemption of the executive branch of government, or its officers, from having to give evidence, specifically, in U.S. law, the exemption of the president from disclosing information to congressional inquiries or the judiciary. Claims of executive privilege are usually invoked to protect confidential military or diplomatic operations or to protect the private discussions and debates of the president with close aides. Efforts by various presidents since Eisenhower to gain absolute and unqualified privilege have been rejected by the courts, though they remain inclined to support most claims of executive privilege. Where criminal charges are being brought against a president, as in the case of Richard Nixon, the claims of executive privilege are weakest; during the process leading to the impeachment of President Bill Clinton, numerous claims made by the White House were dropped when it was clear courts would not uphold them.
The Supreme Court did not reject that claim out of hand; it noted, in fact, “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.? As the Court stated, “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.? This is very similar to the logic that the Court had used in establishing an “executive immunity? defense for high office-holders charged with violating citizens’ constitutional rights in the course of performing their duties.
The Court did not, on the other hand, accept Nixon’s privilege argument on the facts of that case. Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
The concept of executive privilege is a legally murky one, since the Constitution does not mention it anywhere. The history of the doctrine underscores that point, since Presidents have generally sidestepped open confrontations with Congress and the courts over this issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.

Jefferson set the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the President. As for Jefferson’s claim that disclosure of the document would imperil public safety, Marshall held that the court, not the President, would be the judge of that. Jefferson complied with Marshall’s order, but claimed he was doing so voluntarily
Criminal Prosecution of an Incumbent President
By John H. Kim, Esq.
“….in America THE LAW IS KING. For as in absolute governments the King is Law, so in free Countries the law ought to be king; and there ought to be no other.?
Thomas Paine, Common Sense 57 (Philadelphia 1776)
II) Prosecution of Vice President and Other Federal Officials
While there are different legal opinions about the President, there is a general consensus that Vice President and other “civil officers? of the United States can be indicted and prosecuted while they are still in office, prior to any impeachment. There are numerous legal cases that have firmly established this rule. For instance, in 1804, Aaron Burr, while Vice President, was indicted for the killing of Alexander Hamilton both in the state of New York and New Jersey. Burr never claimed any immunity from prosecution in the case, and had to serve out his office with the stigma of indictment.
Likewise, Spiro T. Agnew, while Vice President, was investigated by the U.S. Attorney in Baltimore for allegedly receiving payoffs from contractors when Mr. Agnew was governor of Maryland. Before entering a plea bargain to a reduced charge and resignation, Vice President Agnew made a motion to the federal court to enjoin the grand jury proceedings against him on the ground of immunity while in office. In response, then-Solicitor General Robert Bork filed a brief arguing that “considerations based upon the Constitution’s text, history, and rationale which indicate that all civil officers of the United States other than the President are amenable to the federal criminal process either before or after the conclusion of impeachment proceedings.?3 (underline added for emphasis)

Subsequently, the Office of Legal Counsel of the Department of Justice, under President Clinton, reaffirmed Bork’s conclusion, stating that “the Constitution requires recognition of a presidential immunity from indictment and criminal prosecution while the President is in office.?4 This seems to be, undoubtedly, the current position of the U.S. Department of Justice under the Bush administration as well.
III) The U.S. Constitution and the Judicial Interpretation
Does the Constitution really provide such an immunity exception for the President?
The answer seems to be no for many reasons. Above all, no provision in the Constitution explicitly grants the President immunity from criminal prosecution. The only provision that provides any explicit immunity, for limited purposes, is for Members of Congress while they are in session.5
The most relevant and contentious provision in the Constitution is in Article I, Section 3, Clause 7:
“Judgment in the Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.?(underline added for emphasis).
From this, it is clear that an impeached President can be prosecuted thereafter.
Does this mean an impeachment must always precede a criminal prosecution?
How about the prosecution of a President who underwent but survived an impeachment process? Can such President be still prosecuted while in office?
Many federal judges and Members of Congress, when they were indicted for various crimes, in fact, raised the defense that they could not be prosecuted prior to impeachment
or that prior conviction or acquittal in the courts should bar impeachment by the Congress for the same offenses. However, the courts have largely rejected such defenses.6 In interpreting Art. I, Section 3, Clause 7 (the Impeachment Judgment Clause), the Court of Appeals in U.S. v.Isaacs held that the Clause “does not mean that a judge may not be indicted and tried without impeachment first. The purpose of the phrase may be to assure that after impeachment a trial on criminal charges is not foreclosed by the principle of double jeopardy…?7
Thus, federal judges such as Hastings, Clairborne and Issacs were all prosecuted first, prior to impeachment. In the case of Judge Hastings, he was even acquitted in a jury trial but still impeached by the Congress subsequently.
In other words, impeachment proceeding and criminal prosecution are two distinct, separate processes, although both can be related to each other. According to District Judge Gerhard Gesell:
“Impeachment trials are sui generic: in several instances in the Constitution, impeachment is distinguished from criminal proceedings….The Framers understood that impeachment trials were fundamentally political….?

IV) Immunity of Federal Officials From Criminal Process
It is to be noted that there is a major difference in the American doctrine of immunity from civil liability and immunity from criminal liability. As one law professor observed, “while courts have invented doctrines of official immunity, they have done so only in civil cases, not criminal ones.?9 In accord with this view, in Imbler v. Pachtman, the U.S. Supreme Court stated that “this Court has never suggested that the policy considerations which compel civil immunity for certain government officials also place them beyond the reach of the criminal law.?10
 In denying immunity for criminal conduct, the Court in U.S. v. Isaacs also pointed out that “criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government.?11
Thus, it is not surprising that the interest of criminal justice and public interest overruled the claims of executive privileges of the President, as Nixon was forced to turn over records of his conversation with his advisers in response to a subpoena in a criminal case.12
 Due to the disclosure of the White House tapes and documents relating to the Watergate break-in, Nixon became the first President to resign his office as the impeachment proceedings started. Although he was not impeached, Nixon faced the distinct possibility of a criminal prosecution after his resignation. Thus, he sought and received a pardon from criminal liability by his successor, President Ford.
Even the Congress is in agreement with the above general rule that all federal officials are subject to criminal law and process. In the aftermath of the “Watergate? scandal, the Congress established the office of “special prosecutor? under the Ethics in Government Act in 1978. The law, although expired now unfortunately, specifically authorized the special prosecutor (a.k.a. “independent counsel?) to prosecute certain high officials, including the President.13
Nothing in the international law, U.S. Constitution, federal statues or court cases provides a blanket immunity for an incumbent President or other federal officials from criminal prosecutions. History and public policy also argue against such an immunity.
As the U.S. Supreme Court pointed out long ago, “no man in this country is so high that he is above the law….All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.?20 It is high time for the American people to uphold and defend this fundamental principle of equal justice for all, which is one of the most important American values now ingrained in the 14th Amendment of the Constitution (“equal protection of the laws?).
“The Secret Downing Street Memo,? The Sunday Times, May 1, 2005.
2 See “Mortality Before and After the 2003 Invasion of Iraq: Cluster Sample Survey,? The Lancet, Oct. 29, 2004 (published online,
3 Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity, filed Oct. 5, 1973, D. Md. No. 73-965.
4 Memorandum from Randolph D. Moss, Asst. Attorney General, Re: A Sitting President’s Amenability to Indictment and Criminal Prosecution, Oct. 16, 2000.
5 See Art. I, Section 6.
6 See U.S. v. Isaacs, 493 F.2d 1124; U.S. v. Hastings, 681 F.2d 706; U.S. v. Claiborne, 727 F.2d 845; Burton v. U.S., 202 U.S. 344; and U.S. v. Helstoski, 442 U.S. 477.
7 U.S. v. Isaacs, 493 F.2d 1124, 1142.
8 Hastings v. U.S. Senate, 716 F. Supp. 38, 41 (D.D.C. 1989).
9 Eric M. Friedman, “To Catch a King,? Legal Times, March 19, 1997.
10 424 U.S. 409, 429 (1976); See also Gravel v. U.S., 408 U.S. 606, 627.
11 U.S. v. Isaacs, 493 F.2d 1124, 1144.
12 U.S. v. Nixon, 418 U.S. 683 (1974).
13 See 28 U.S.C. 591- .
14 1975 Report of the Watergate Special Prosecutor Task Force, at 122; See also Ken Gormley, “Impeachment and the Independent Counsel: A Dysfunctional Union,? 51 Stanford Law Review 309, 345 (1999). Gromley states that Jaworski also wanted to help the Congress since Nixon refused to cooperate with the subpoena issued by the House Judiciary Committee.
15 Memorandum dated Feb. 12, 1974, p. 10; See 27 Hofstra Law Review 677, Appendix, 1999.
16 CNN, Jan. 21, 2001.
17 AP, March 6, 2002.
18 See Nuremberg Principles; 1948 Convention on the Prevention and Punishment of the Crime of Genocide; also the 1998 Rome Statue of International Criminal Court.
19 See 28 C.F.R.. 600.1.
20 U.S. v. Lee, 106 U.S. 196, 220 (1882).


Franklin District Court ruling expected today will be Fletcher watershed

Friday, August 11th, 2006


Excerpts from column by Ryan Alessi HERALD-LEADER FRANKFORT BUREAU FRANKFORT — Simply put, the coming court decision on whether Gov. Ernie Fletcher must stand trial for charges related to the state hiring investigation may be the make-or-break point for the governor’s political and legal future.

That pending decision by special judge David Melcher — a Family Court judge from Cynthiana — also could have far-reaching effects on Kentucky’s political landscape both in the 2006 legislative elections and next year’s governor’s race.

Even the perceived integrity of the judicial branch is at stake, observers say.

“I think if you ask most voters, they want a public trial and want everything aired out because there’s been so many denials,” said Stephen Horner, a legal analyst and former juvenile justice judge from Louisville. “If they don’t get it, it looks like good ol’ boy politics prevailed.”

“I think it would look bad for both the executive branch and the judicial branch.”

Prosecutors and the governor’s legal defense team will make their final appeals to Melcher in Franklin District Court today.

Merrill Mitchell, the family court administrator in Cynthiana who has handled press calls for Melcher, said yesterday “it is a distinct possibility” that Melcher will rule today on whether any of the misdemeanor charges against the governor should be tossed out. Fletcher is now scheduled to stand trial Nov. 8, the day after the general election.

Fletcher has clearly pinned his hopes of political survival on convincing a judge that a special grand jury was out of bounds in charging him in May with three misdemeanors — conspiracy, political discrimination and official misconduct — related to the ongoing personnel investigation.

“When the dust settles from all this sad ordeal in Frankfort, I think people will see what we’ve done,” Fletcher told reporters last weekend in Western Kentucky. “Our record is outstanding.”

His top aides have urged supporters around the state for weeks to stay behind the governor because they were confident the charges would be thrown out.

That talk “has gotten back to” Melcher, Mitchell said yesterday. But “he has not expressed comment one way or the other on the effect of it.”

Fletcher’s attorneys have filed several long motions that assert he did nothing wrong. They also argue that the prosecution of the governor was unfair because past administrations weren’t investigated for questionable personnel practices or violations of the state merit laws.

They also say a governor is immune from prosecution for any official acts unless he or she is impeached by the legislature first.

Prosecutors have countered that neither federal cases nor Kentucky’s constitution gives a governor such immunity. They claim Fletcher’s defense team hasn’t met the U.S. Supreme Court’s threshold for proving that the governor was unfairly targeted.

LawReader editors note:  Judge Steve Horner, mentioned in the Alessi article, is LawReader’s legal analyist, and writes a weekly roundup of all political and legal news for Kentucky.  Our library of his columns presents an encyclopedic record of the Merit system probe. 

Say it aint so Governor. Has there been a leak of Judge Melchers ruling?

Thursday, August 10th, 2006

Special Judge David Melcher is considering motions by Gov. Fletcher’s defense lawyers a motion to dismiss all pending criminal charges against the Governor. His jury trial is currently scheduled for Nov. 8 in Frankfort.  It has been anticipated that the ruling would be released by Judge Melcher as soon as Friday August 11th. reports on its web blog this morning:

“The chatter in political circles this morning is that indicted Governor Fletcher (R) and his capos are trying to organize “victory celebrations” for tomorrow night, presumably to celebrate getting the criminal case against Fletcher dismissed.?

    Any suggestion that Governor Fletcher has been tipped off about the ruling in advance would be highly embarrassing to Judge Melcher.  If such an action was every proven to be true it would suggest an improper relationship that would bring any ruling into question.  The idea of advance planning for a “victory party? strongly suggests either advance knowledge of the ruling, or a lack of knowledge about the respect owed to the court and to the law, and an amateurish misunderstanding on how this would look to the public at large.

    Surely those around the Governor are aware of the concern by many in the legal profession of the Governor’s often heavy hand regarding his involvement in the appointment of special judges to the Supreme Court to hear cases in which he is involved, and his motion to remove the regular Judge of the Franklin District Court who was originally assigned this case.

   Any suggestion that politics have influenced a ruling on the law will be very harmful to the Governor.  The idea of holding a “victory party? is premature.  Regardless of the ruling by Judge Melcher, it doesn’t take much understanding of this situation to predict that an appeal will immediately follow this ruling, regardless which party wins.


Gonzales changing immigration courts. Dept. of Justice to hire more judges.

Thursday, August 10th, 2006

WASHINGTON — Immigration court judges will undergo periodic evaluations and additional immigration appeals judges will be hired, Attorney General Alberto Gonzales announced Wednesday.

Gonzales opened a review of the immigration courts, which operate as part of the Justice Department, in January after chastising some of them for “intemperate or even abusive” conduct toward asylum seekers.

 ”This review has left me reassured of the talent and professionalism that exists in the immigration courts and at the Board of Immigration Appeals,” Gonzales said in a statement. But he found room for improvement.

The more than 200 immigration judges handle hundreds of thousands of cases each year. Some of the judges have criticized the quality of their colleagues’ work and the disparaging way some judges have treated foreigners seeking to remain in this country.

Gonzales’ predecessor, John Ashcroft, overhauled immigration reviews in 2002, but his changes have been highly criticized. Ashcroft’s overhaul led to more asylum and other cases being decided by a single judge rather than a three-judge panel of the Bureau of Immigration Appeals. The reforms were followed by a marked increase in the number of cases later taken to regular federal appeals courts.

Gonzales declined to return to the three-judge format, but made other tweaks to Ashcroft’s reforms, such as allowing for the return of a case to the immigration appeals panel if it warrants reconsideration.

Also Gonzales said the Justice Department will seek additional money in fiscal year 2008 to hire more judges and staff. He wants to add four members to the Board of Immigration Appeals and continue using temporary board members as needed.

Eleanor Acer, asylum program director for Human Rights First, praised many of the improvements, but was disappointed by Gonzales’ decision not to return to three-member panels.

“We had urged DOJ to return to three-member review in asylum and similar cases _ essential given the life and death stakes in these cases,” Acer said.

The immigration judges recently formed a union affiliated with the International Federation of Professional and Technical Engineers, which also represents Social Security judges. Denise Slavin Noonan, president of the National Association of Immigration Judges, said most of the proposed changes would lead to improvements, but she had some concerns about the evaluations.

The attorney general’s changes include:

_ Periodic reviews of the work and performance of each immigration judge and member of the Board of Immigration Appeals.

_ Developing a written immigration law exam to be given to judges and appeals board members appointed after Dec. 31. The newcomers will have to pass the exam before they can decide cases.

_ Improved training for judges and appeals board members.

_ Reviewing a recent study of immigration judges by a Syracuse University-based research group that found great disparity in immigration judges’ denial rates in asylum cases.

_ Giving judges ability to sanction people in their courtroom for fraud or misconduct.

_ Expanding free services for poor immigrants.


On the Net:

Justice Department:

By SUZANNE GAMBOA Associated Press Writer

Six names sent to Gov. for appealte court vacancies in the 4th. and 5th. Districts. Chaos remains in the 3rd. as Dyche keeps everyone guessing.

Wednesday, August 9th, 2006

  LawReader article by Stan Billingsley- 
  Chaos remains in the 3rd. Appellate District.  What is Judge Dyche up to?  Will he

 withdraw?  If so when?  Will he go to the Worker’s Comp. Board? 

    There are several rumors floating over the internet about Judge R.W. Dyche. So far he has kept the public guessing as to what’s up.

 He retired from the Ky. Court of Appeals in June, and became eligible for a judicial retirement pension.  However, in January he had filed to run for reelection to his position on the Court of Appeals.  He remains on the ballot for November and is unopposed.

Chief Justice Joseph Lambert, obtained a provision in the Judicial Budget bill, approved by the 2006 Legislature, that prohibits a judge from retiring and then returning to office and drawing a judicial pension and a salary for the same position.  That seems to have blocked an opportunity for him to “double-dip?, if that had been his plan…and that is only conjecture.

     The next rumor was that he had worked out a deal for the Governor to appoint him to the Board of the Worker’s Compensation Board, where he would draw a salary equal to that of a Circuit Judge, about $126,000 a year.  It was recently reported on, that indeed he had been nominated for a position on the W/C Board.    The second part of that rumor was that Republican Senator David Williams would resign from the State Senate, and be appointed to the Court of Appeals. The Governor would then call a special election for Williams vacate seat in the Senate It has been rumored for years that Williams has a long term goal of becoming a Federal Judge, and the rumor suggested that this would be a first step on that plan.

Such a plan would allow the Governor to isolate Williams, who has been highly critical of the Governor over the last year, and who might even run against Fletcher in the 2007 Gubernatorial election.  

   As soon as that balloon was launched, Williams appeared to have stuck a pin in it by demeaning the job of Court of Appeals judge.  One can see his point, it is probably far more interesting to be the most powerful Republican in state government (due to Governor Fletcher’s low poll numbers and impending prosecution).

   The next rumor came over the internet when it was noted that if Judge Dyche was to formally withdraw his name from the ballot for reelection to the Court of Appeals, that someone else could slip in at the last minute and file as soon as Dyche’s  vacancy was created, and then be unopposed for an eight year term.  That possibility was brought to light by an article by Mark Nickolas on

LawReader took the step of e-mailing hundreds of its subscribers in the  3rd. Court of Appeals District to advise them of the possibility of a vacancy and informing them of the procedures for filing which had to be done in Frankfort by 4 P.M. on August 7th. (Just another benefit of being a LawReader subscriber!)
   But as of Wednesday morning it doesn’t appear that Dyche withdrew from the Court of Appeals race.  So what is the next move?

   There are only two things that can occur at this point:  

1. Dyche is reelected in November, and serves again as a Court of Appeals Judge, but is unable to double dip.

2. Dyche withdraws from the election, or waits until January and refuses to serve. Both options then create a vacancy on the Court of Appeals.  This vacancy would be filled by the Judicial Nominating Process, with appointment of one of three nominees by Governor Fletcher.  The newly appointed judge would serve until the general election in 2007. At that time an election would fill the office for the balance of the eight year term.

    Governor Fletcher, will be appointing nine new judges in January due to his veto of a bill that funded the election of those nine judges this November.  This vacancy would provide Governor Fletcher one more opportunity to influence the makeup of the Kentucky Judiciary.  In January, Fletcher will have appointed more Judges than any Governor in Kentucky history.  About 20% of all judges sitting at that time will owe their appointments to Governor Fletcher.

   We don’t know if Dyche will assume a position on the Worker’s Comp. Board, but it sounds logical.    What we do know is that Judge Dyche is playing his cards close to his vest, and is keeping everyone guessing.

    On July 27th. the Judicial Nominating Commission for the 3rd. Court of Appeals District nominated three people to fill the Dyche vacancy from the date of their appointment until the office again becomes vacate on January 1, 2007.  Since none of them have filed for the November election, none of them will assume the office in January 2007.  That means the nomination and appointment process will now have to be duplicated all over again in January for the 3rd. Appellate District.

The three nominees to fill the current vacancy created by Dyche’s retirement in June are:  (The appointee will only serve until Jan. 1, 2007)
Attorney Norma B. Adams. Adams attended Western Kentucky University and graduated from the University of Kentucky College of Law. She retired as managing partner of the Adams and Venters law firm in Somerset in January 2006. Her practice focused on estate planning, commercial litigation, tort litigation, Workers’ Compensation defense, environmental law and labor law. She resides in Somerset.

Attorney James I. Howard. Howard currently practices with Hensley, Ross & Howard in Horse Cave. His general practice includes personal injury litigation, criminal defense, civil litigation, probate, domestic relations, corporate law and real estate law. He holds a bachelor’s degree from Asbury College and a juris doctor from Duke University. Howard resides in Edmonton.

Judge Eddie C. Lovelace. Judge Lovelace has served as a circuit judge for Clinton, Cumberland and Monroe counties since he was elected to the bench in 1991. Prior to assuming the judgeship, he was Albany city attorney, Clinton county attorney and commonwealth’s attorney. He resides and works in Albany. He earned a bachelor’s degree from the University of Kentucky and a juris doctor from the University of Louisville School of Law.

   One of these nominees will have the honor of serving as a Court of Appeals judge for about 4 months.  Of course, whomever the Governor appoints in the next few days to fill this vacancy would surely be reappointed by the same Governor in January….unless of course they do something during that brief tenure that displeases him.

Other vacancies on the Court of Appeals to be filled by appointment.
 On July 27th. the various nominating commissions met in Frankfort and nominated candidates for two other appeallate vacancies.  In both of these appellate districts there is one nominee for the interim appointments who has also filed for the November election.  This would seem to give an edge for Judge Wine in the 4th. and attorney Glenn Acree in the 5th. to be appointed to the interim seats, as they will be elected in November anyway and will assume a full term in January of 2007.

4th Appellate District, Division 1: Vacated when William E. McAnulty, Jr. was recently appointed to fill a vacancy on the Supreme Court of Kentucky. Judge McAnulty resides in Louisville where he has his home chambers. He earned a bachelor’s degree from Indiana University, and a master’s degree and law degree from the University of Louisville. He began serving as a Juvenile Court judge in 1975. From 1978 to 1983, he served as a District Court judge in Jefferson County and in 1983 he was elected to the circuit bench where he presided until 1990. Following a brief period in private practice, Judge McAnulty returned to the circuit bench by appointment in 1993. He joined the Court of Appeals after a special election in November 1998 to fill the unexpired term of Justice Martin E. Johnstone who was appointed to the Supreme Court; he was subsequently elected to a full term on the Court of Appeals in 1999. Judge McAnulty is a candidate for the Supreme Court in the November election.

The nominees sent to the Governor for consideration from the 4th. Appeallate District are:
Attorney Louis R. Guenthner, Jr. Guenthner resides in Louisville. He previously had a general practice of law that included domestic, criminal, corporate and personal injury law. He specialized in appeals. He holds a bachelor’s degree from Bellarmine College and a juris doctor from the University of Louisville School of Law.

Judge Thomas B. Wine. Judge Wine has served as a circuit judge in Jefferson County since his election in 1992. Before assuming the bench, he served in the Office of Commonwealth’s Attorney and the Office of Attorney General, and was in private practice. Judge Wine earned a bachelor’s degree in political science and a law degree from the University of Louisville. He resides in Louisville.

Attorney Harold G. Wren. Wren graduated from Columbia University and Yale Law School. Wren resides and works in Louisville where he has served as “of counsel” for James R. Voyles, Attorney at Law, since 1991. Previously, his long career in legal education included serving as professor of law and dean of the University of Louisville School of Law.

Candidates who have formally filed for election for the 4th Appellate District, Division 1, according to the web site for the Secretary of State: James Michael Green and Thomas B. Wine.

5th Appellate District, Division 2: Vacated when Julia K. Tackett retired effective June 30, 2006. Judge Tackett resides in Lexington where she has her home chambers. Before her election to the court of Appeals in 1999, she served six consecutive terms as a district judge. She earned both a bachelor’s degree and law degree from the University of Kentucky.

Nominees whose names have been submitted to the Governor for appointment to the 4th. Appealate District vacancy are:
Attorney Glenn E. Acree. Acree holds a bachelor’s degree and law degree from the University of Kentucky and a master’s degree from the University of Maryland. He resides in Lexington where he has a solo practice that is general in nature. He has handled litigation and appeals in the areas of criminal law, administrative law, employment discrimination, civil procedure, insurance law, environmental law and construction law.

Attorney Bruce A. Rector. Rector resides and works in Lexington where he currently practices law with Woodward, Hobson & Fulton, LLP. His practice includes general litigation, business, corporate and family law, probate and estate planning. He graduated with a bachelor’s degree and law degree from the University of Kentucky.

Attorney Thomas J. Smith, III. Smith currently practices law with Commonwealth’s Attorney David W. Smith in Richmond. Smith serves as a part-time assistant commonwealth’s attorney and prosecutes cases involving violent offenses. He served as commonwealth’s attorney for the 25th Circuit from 1980 to 2005. He graduated from Centre College with a bachelor’s degree and the University Louisville School of Law with a juris doctor. He resides in Richmond.

The only Candidate who has formally filed for the 5th Appellate District, Division 2, according to the web site for the Secretary of State: Glenn Acree. 

Attorney Dickerson to challenge Field Sobriety Test conducted on Bengal on unstable boat dock.

Wednesday, August 9th, 2006

  Northern Kentucky Attorney Dan Dickerson, representing Cincinnati Bengal Eric Steinbach on a charge of BUI, boating under the influence, will challenge the field sobriety test conducted on an unstable boat dock.

  Steinbach was charged by a Ky. Fish and Wildlife officer for BUI on the Ohio River within sight of Paul Brown Stadium Saturday August 5th.  Campbell County Judge Karen Thomas will hear Dickerson’s suppression motion on Sept. 7 in Campbell District Court.

   The Kentucky Post reported that Steinbach, was pulled over for violating the No Wake speed limit, and that he had admitted to drinking 6 to 8 beers over a period of time that evening.

   The Ky. Dept. of Criminal Justice Training has published a booklet used in training law officers in the proper methods for the conduct of FST that is posted on .  The following is excerpted from that LawReader resource:


(This booklet has been introduced into court under the “learned treatise” exception to the hearsay rules.  This publication is used in training at the Department of Criminal Justice Training at Richmond, Kentucky 40475)   
-D. Test Conditions
      Walk and Turn require a high, dry level, nonslipping surface with sufficient room for the suspect to compete nine heel-to-toe steps. A straight line must be clearly visible on the surface. If no line is available, it is possible to conduct the the by directing the suspect to walk in a straight line parallel with a curb, guardrail, etc. Conditions must be such that the suspect would be in no danger if he or she were to fall.
        Some people have difficulty with balance even when sober. People more than 60 years of age, over 50 pounds overweight, or with physical impairments that affect their ability to balance should not be given this test.  Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes. Individuals who cannot see out of one eye may also have trouble with this test because of poor depth perception.
These additional FST resources can be found on .  LawReader provides these resources to its subscribers for a membership fee of $34.95 a month.
FIELD SOBRIETY TESTS  (found in the DUI Library)

This case is mandatory reading regarding FST evidence. Don’t go to trial without reading this case!!!!!  ex: “Pass – Fail” testimony disallowed!!
 FST TEST RESULTS MAY BE ADMISSIBLE IN PER SE PROSECUTIONS Court of Appeals Decision that allows introduction of defendant’s
performance on field sobriety test even in Per Se prosecutions
Discussion of new National standards for FST  READ THIS UPDATE!
The best links and resources about Field Sobriety Testing – Don’t go to trial before reading this material.  This provides tremendous material to cross exam the arresting officer with, and provides him with training to be ready for your questions.
District Court decision in which the Field Sobriety Test Manual was introduced by Defense and destroyed arresting officer’s testimony 
Procedures police are instructed to use in conducting all field sobriety tests 
This is a copy of the Manual issued to police at EKU in Richmond during training.  Read what the college teaches peace officers to do, how to give tests, and how they are supposed to grade them, including warnings about situations in which they admit the tests are not valid.  This is a valuable tool for preparing your cross-examination.
Powerful cross-examination tips and techniques re: FST.. 
this will blow you away.
 Oldham Co. MS patient “fails field sobriety test” arrested – no alcohol, no drugs- suits in Fed. Court – Will Daubert standards permit the test to be admitted?
Scientific test showing that Field Sobriety Tests are valid even at low BA blood levels
 MOTION TO SUPPRESS EVIDENCE OBTAINED BY FST TEST  Walk & turn, and one-legged stand tests improperly administered and should be suppressed
Ordinarily a FST is not “in custody”….many citations
Failure of officer to read Miranda Rights before Field Sobriety Test should exclude oral statements of defendant

DOT suggestions on how to profile a dui driver

New Forensic group which will study science used in criminal cases, names Director. They will study human memory, eyewitness identifications, DNA and other topics to ensure reliability.

Wednesday, August 9th, 2006

GREENSBORO, N.C.,  /U.S. Newswire/ — The American Judicature Society (AJS), a national, non-partisan organization dedicated to promoting the effective administration of justice, has named Matthew S. Epstein as director of its Institute of Forensic Science and Public Policy in Greensboro, North Carolina.

“We conducted an extensive nationwide search for this critical position,” said AJS President-Elect Neal Sonnett. “Matt Epstein was the clear choice, and he brings to AJS outstanding experience in the areas of forensic science and the law. His background in building a nationally recognized non-profit organization, working with public and private universities, noted professionals, and volunteers in multiple programs, makes him an excellent fit to serve as the first Director of the AJS Institute and work with its related AJS Commission on Forensic Science and Public Policy.”

Epstein, an attorney, is the former executive director of the North Carolina Center for Child and Family Health (CCFH), an organization that touches thousands of lives each year and has gained national recognition as a groundbreaking center for innovative approaches to working with victims of child abuse. As the first leader of the consortium of three North Carolina universities with a mission to conduct research, education, and public advocacy and to provide direct services, he developed CCFH from a distant dream with no staff or start-up funds to a thriving organization with an annual budget of over $3 million and a staff of more than 60.

Prior to CCFH, Epstein practiced law for 20 years in New Hampshire and served as an adjunct professor at several law schools and universities. He was elected to represent the City of Concord as a State Representative in New Hampshire, where he sponsored major legislative initiatives. After he left the Legislature, he served as Legal and Legislative Counsel for the New Hampshire Division of Mental Health and Developmental Services, where he oversaw the development of a community based treatment system and the restructuring of children’s mental health and developmental services.

While in private law practice, Epstein also spent 10 years as the Legislative Representative of the New Hampshire Bar Association, successfully forging a solid relationship between the Bar and the Legislature to help craft effective legislation on a variety of issues, including juvenile and criminal laws.

“I am awed by the talent at AJS and on the Commission, and I’m honored to be allowed to play a role in fulfilling the promise of the Institute,” commented Epstein of his appointment. “All who have been involved with our justice system appreciate the critical nature of the issues we will be addressing and the opportunities they present. Rapid advances in science challenge our justice and educational systems to keep pace if we are to maintain public trust in what we do. I look forward to working with scientists, judges, law enforcement, lawyers, educators, public officials, and others to meet those challenges. The key to our success will be our ability to work collaboratively to address the legitimate concerns of the various stakeholders.”

The AJS Institute of Forensic Science and Public Policy, which opened this year in downtown Greensboro, N.C., is a new branch of the organization which will focus on justice issues at the nexus of science and law, such as DNA evidence, juror comprehension of scientific testimony, and human memory and its effect on eyewitness identification. The goals of the Institute are to improve the reliability and accuracy of the justice system, to promote the application of advancements in science to the administration of justice, and to enhance public trust and confidence in law enforcement and the nation’s courts.

Institute staff will work with scientists, legal experts, justice system stakeholders, and faculty and students from universities and law schools The Institute will also work with the AJS Commission on Forensic Science and Public Policy, a group of nationally recognized science and justice system experts who will act as an independent body to identify and recommend best practices and standards for the use of forensic science in the justice system. The Commission is co-chaired by former Attorney General Janet Reno, former FBI Director William Webster, and renowned statistician Dr. Stephen Fienberg.

About the American Judicature Society

Founded in 1913, AJS is a leader in improving our nation’s courts. AJS, which brings a public perspective to justice system issues, has the mission to secure and promote an independent and qualified judiciary and a fair system of justice. For more information on AJS, visit our Web site at

About the Commission on Forensic Science and Public Policy

The Early election for Chief Justice Lambert raises question about the beginning of his term.

Tuesday, August 8th, 2006


     The Chief Justice of the Kentucky Supreme Court is designated as the executive head of the Court of Justice by virtue of  Ky. Const. Section 110- (5) (b). 
His constitutional duties under Section 110-(5)(b) include:
1) He shall appoint such administrative assistants as he deems necessary.
2) He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes.
3) The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.

 Policy decisions however are shared by the other six justices of the Supreme Court and the Chief Justice by operation of Supreme Court Rule SCR 1.010 which states:
SCR 1.010 Authority

“The policy-making and administrative authority of the Court of Justice is vested in the Supreme Court and the Chief Justice.  All fiscal management, personnel actions and policies, development and distribution of statistical information, and pretrial release services come within that authority.?
     While the Chief Justice is designated as the executive, policy making is shared by the entire Supreme Court.   SCR 1.020 mandates that,
“…matters of policy or administration shall be decided by a concurrence of at least four of its members.

                     ELECTION OF CHIEF JUSTICE

     The Kentucky Constitution at Section 110-(5)(a) spells out the procedure for the election of the Chief Justice.     The Kentucky Constitution at Section 110-(5)(a) spells out the procedure for the election of the Chief Justice.
“(5) (a) The Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years. “
  This provision of Section 110 does not set a date for the election, but one would assume the original four year term commenced with the adoption of the new provisions of the Kentucky Constitution which was ratified by the voters on November 4, 1975 and became effective on January 1, 1976.
Therefore, an election for the Chief Justice was held in January of 1976, and subsequent elections (for a term of four years) should have occurred in 1980, 1984, 1988, 1992, 1996, 2000, 2004, and the next election would be expected to be in 2008.
   Chief Justice Lambert called for the election of the Chief Justice to be held in April of 2006.  That would appear to have been half-way through the expected term, but this may have been modified due to the retirement of the prior Chief Justices, (John Palmore, Robert Stephens.)
If a prior Chief Justice retired before the expiration of his four year term as Chief Justice, or if his re-election to the Supreme Court intervened and he wasn’t reelected, then we can possible explain why the Lambert election was held in 2006 instead of 2008.

Lambert was elected to his second term in April of 2002, and an AOC news release indicates that that term started in October of 2002.
There is no mention in the Constitution for an election for the remainder of the four year term of the retiring Chief Justice. Therefore, regardless when the vacancy occurred, the new Chief Justice would always be elected for a four year term.
     One might expect that there would be no election until such time that there was a vacancy.  If Lambert was elected for a four year term in 2004, there would be no vacancy until 2008 at the end of his term. However, the 2006 election follows precedent set in his 2002 election.
    It is rumored that the timing of the election called by Chief Justice Lambert in April of 2006, was opposed by some of the Justices, and that they suggested waiting until the new Justices to be elected in November of 2006 were sworn in. 
Nevertheless, the constitution does not specifically state when the election is to be held, and there is no rule or constitutional provision that clearly says the election cannot be held prior to the expiration of the current term or until the vacancy actually occurs.
   Since the election of Chief Justice Lambert was held in April of 2006, one might assume that he will serve in that position until April of 1010, since the term is for four years.  However, one could just as well argue that even though the election was held in April of 2006, that his current four year term does not expire until Dec. 31, 2006, and that Lambert by virtue of his election in 2006 will serve as long as to Dec. 31, 2010.
   We see no basis for an objection to the “early? election, since all the Justices participated in the April 2006 election, and it would appear that only they would have standing to object to an “early? election.  The only legal question we can decipher from this is an issue as to when Lambert’s term as Chief Justice ends:  April of 2010 or December of 2010.
   Since the Constitution spells out the election requirement, only an amendment to the Constitution can effect a change in that provision.  However, one may well argue that the determination of the date for holding such an election is within the policy making and administrative powers of the entire Court under SCR 1.010 and SCR 1.020.
Likewise, it would appear that the determination about the beginning and ending dates of the four year term of the Chief Justice would likewise be governed by SCR 1.010 and SCR 1.020.   When the other members of the Supreme Court failed to state any policy delaying the April 2006 election (by a vote of four members), then one must conclude they deferred to the Chief Justice on the issue of the date of the election.  That can not be said however of the beginning and ending dates of the term for which the April 2006 election was held.  That issue could still be raised by the other members of the Supreme Court under their “policy making and administrative? powers.

     The Kentucky Constitution at Section 110-(5)(a) spells out the procedure for the election of the Chief Justice.“(5) (a) The Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years. “  This provision of Section 110 does not set a date for the election, but one would assume the original four year term commenced with the adoption of the new provisions of the Kentucky Constitution which was ratified by the voters on November 4, 1975 and became effective on January 1, 1976.Therefore, an election for the Chief Justice was held in January of 1976, and subsequent elections (for a term of four years) should have occurred in 1980, 1984, 1988, 1992, 1996, 2000, 2004, and the next election would be expected to be in 2008.  

 Chief Justice Lambert called for the election of the Chief Justice to be held in April of 2006.  That would appear to have been half-way through the expected term, but this may have been modified due to the retirement of the prior Chief Justice, (John Palmore.)If the prior Chief Justice retired before the expiration of his four year term as Chief Justice, or if his re-election to the Supreme Court intervened and he wasn’t reelected, then we can possible explain why the Lambert election was held in 2006 instead of 2008.

There is no mention in the Constitution for an election for the remainder of the four year term of the retiring Chief Justice. Therefore, regardless when the vacancy occurred, the new Chief Justice would always be elected for a four year term.     One would expect that there would be no election until such time that there was a vacancy. 

 If Lambert was elected for a four year term in 2004, there would be no vacancy until 2008 at the end of his term.     It is rumored that the timing of the election called by Chief Justice Lambert in April of 2006, was opposed by some of the Justices, and that they suggested waiting until the new Justices to be elected in November of 2006 were sworn in. Nevertheless, the constitution does not specifically state when the election is to be held, and there is no rule or constitutional provision that clearly says the election cannot be held prior to the expiration of the current term or until the vacancy actually occurs.  

Since the election of Chief Justice Lambert was held in April of 2006, one might assume that he will serve in that position until April of 1010, since the term is for four years.  However, one could just as well argue that even though the election was held in April of 2006, that his current four year term does not expire until Dec. 31, 2006, and that Lambert by virtue of his election in 2006 will serve as long as to Dec. 31, 2010.  

We see no basis for an objection to the “early? election, since all the Justices participated in the April 2006 election, and it would appear that only they would have standing to object to an “early? election.  The only legal question we can decipher from this is an issue as to when Lambert’s term as Chief Justice ends:  April of 2010 or December of 2010.  

Since the Constitution spells out the election requirement, only an amendment to the Constitution can effect a change in that provision.  However, one may well argue that the determination of the date for holding such an election is within the policy making and administrative powers of the entire Court under SCR 1.010 and SCR 1.020.Likewise, it would appear that the determination about the beginning and ending dates of the four year term of the Chief Justice would likewise be governed by SCR 1.010 and SCR 1.020.  

When the other members of the Supreme Court failed to state any policy delaying the April 2006 election (by a vote of four members), then one must conclude they deferred to the Chief Justice on the issue of the date of the election. 

That can not be said however of the beginning and ending dates of the term for which the April 2006 election was held.  That issue could still be raised by the other members of the Supreme Court under their “policy making and administrative? powers.Authorities:

Kentucky Constitution   Section 110
Composition — Jurisdiction — Quorum — Special justices — Districts — Chief Justice.
(1) The Supreme Court shall consist of the Chief Justice of the Commonwealth and six associate Justices.
(2) (a) The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice.
(b) Appeals from a judgment of the Circuit Court imposing a sentence of death or life imprisonment or imprisonment for twenty years or more shall be taken directly to the Supreme Court. In all other cases, criminal and civil, the Supreme Court shall exercise appellate jurisdiction as provided by its rules.
(3) A majority of the Justices of the Supreme Court shall constitute a quorum for the transaction of business. If as many as two Justices decline or are unable to sit in the trial of any cause, the Chief Justice shall certify that fact to the Governor, who shall appoint to try the particular cause a sufficient number of Justices to constitute a full court for the trial of the cause.
(4) The Court of Appeals districts existing on the effective date of this amendment to the Constitution shall constitute the initial Supreme Court districts. The General Assembly thereafter may redistrict the Commonwealth, by counties, into seven Supreme Court districts as nearly equal in population and as compact in form as possible. There shall be one Justice from each Supreme Court district.
(5) (a) The Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years.
(b) The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary.
 He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes.
The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.
Text as Ratified on: November 4, 1975, effective January 1, 1976.
History: Repeal and reenactment proposed by 1974 Ky. Acts ch. 84, sec. 1; original version ratified August 3, 1891, and revised September 28, 1891.
    The following Rules have been adopted by the Supreme Court, and can be changed by the Supreme Court.
SCR 1.010 Authority
The policy-making and administrative authority of the Court of Justice is vested in the Supreme Court and the Chief Justice.
 All fiscal management, personnel actions and policies, development and distribution of statistical information, and pretrial release services come within that authority.

HISTORY: Adopted eff. 1-1-78
Sup. Ct. Rules, Rule 1.010, KY ST S CT Rule 1.010

SCR 1.020 The Supreme Court
(1) Conduct of business.

(a) Final decisions and matters of policy.

The final disposition of all appeals and original actions in the Supreme Court and matters of policy or administration shall be decided by a concurrence of at least four of its members, except that in appealed cases if one member is disqualified or does not sit and the court is equally divided, the order or judgment appealed from shall stand affirmed.

(b) The Chief Justice.

The Chief Justice shall be the presiding officer of the court.
 Orders of the court shall be signed by the Chief Justice or one of its members acting on his behalf, unless otherwise provided by these rules.
Whenever the Chief Justice is absent or otherwise unable to act, the remaining six members shall act for and in his behalf in the order of their seniority on the court unless otherwise directed by the Chief Justice.
Members whose terms of service are equal shall have precedence according to seniority in age.
(2) Terms.

(a) There shall be one annual term of the Supreme Court, coinciding with the calendar year.

(b) The provisions of CR 6.03(1) and CR 77.01 apply to the transaction of business in the Supreme Court.

(3) Sessions.
The Supreme Court will sit in open session for scheduled oral arguments and on such other occasions as it may determine.
(4) Court personnel.
Officers and employees of the Supreme Court shall not engage in the practice of law.

HISTORY: Amended by Order 83-4, eff. 7-8-83; prior amendments eff. 10-1-82, 5-1-80; adopted eff. 1-1-78
Sup. Ct. Rules, Rule 1.020, KY ST S CT Rule 1.020
Current with amendments received through 2/16/06.

AOC News Release -   Chief Justice Lambert elected to 3rd term as Chief Justice of Kentucky

FRANKFORT, Ky., April 11, 2006  The justices of the Supreme Court of Kentucky voted yesterday to elect Chief Justice Joseph E. Lambert to a third four-year term as Chief Justice, which will begin Oct. 2, 2006. The Kentucky Constitution provides that the justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years.

“I am grateful for the continued confidence of my colleagues,” said Chief Justice Lambert.  appreciate the opportunity to follow through on the important initiatives being carried out by the Kentucky of Court of Justice.”

Chief Justice Lambert joined the Supreme Court in 1987 after being elected by the citizens of the 3rd Supreme Court District, which is comprised of 27 counties in Southcentral Kentucky. He was named Kentucky’s fourth chief justice in 1998 by a vote of his Supreme Court colleagues. The justices voted again on April 15, 2002, to elect him to a second term, which began Oct. 2 of that year. Chief Justice Lambert’s current eight-year term as a justice of the Supreme Court runs through 2010.

During his tenure, Chief Justice Lambert has focused on implementing cutting-edge programs in technology, court records, judicial education, justice facilities, pretrial services, promotion of women, and Family and Drug courts. As a result, the Kentucky court system is proving to be one the Commonwealth’s finest achievements. Chief Justice Lambert counts among his most significant accomplishments the 2002 passage of the constitutional amendment that made Family Court a permanent part of the Kentucky Constitution.

The Kentucky Bar Association named him Outstanding Judge of Kentucky in 2000. He received the Leadership Award from the National Association of Drug Court Professionals in 2000. He was given the Kentucky Public Advocate Award in 2001. In 2003, he was awarded the Kentucky Bar Association President’s Special Service Award. In 2004, he received the Civil Rights Award from both the Northern Kentucky NAACP and the Lexington NAACP for his commitment to eliminating discrimination. Chief Justice Lambert serves on the boards of the National Conference of Chief Justices and The Center for Rural Development in Somerset, Ky. He is chair of the board for the Rockcastle Hospital and Respiratory Care Center in Mt. Vernon, Ky.
He holds a bachelor’s degree from Georgetown College, Georgetown, Ky., and a juris doctor from the University of Louisville Brandeis School of Law, which gave him its Distinguished Alumni Award. He is a native of Rockcastle County and lives in Mt. Vernon with his wife, Debra, a Family Court judge for Lincoln, Pulaski and Rockcastle counties. They have two sons, Joseph and John.

Quotes from colleagues regarding Chief Justice Lambert being elected to a third term Gov. Ernie Fletcher

Commonwealth of Kentucky
“Chief Justice Lambert is a strong advocate of equal treatment for all who come before the courts. I am pleased he can continue to carry out his work on behalf of Kentucky citizens who deserve a fair and equal justice system.”

Justice Martin E. Johnstone
Deputy Chief Justice, Supreme Court of Kentucky
“Maintaining cohesion among the Supreme Court justices is often not an easy task, yet Chief Justice Lambert has been able to successfully balance our distinct personalities with our strong allegiance to the law. The result has been a Supreme Court whose ongoing priority is the fair application of justice to all.”

David B. Sloan
President of the Kentucky Bar Association and an attorney in Covington, Ky.
“As an independent agency of the Supreme Court, the Kentucky Bar Association has benefited from Chief Justice Lambert’s ability to carefully regulate the practice of law so that citizens can expect an efficient judicial system and a high standard of professionalism from members of the Bar.”

Allan W. Vestal
Dean of the University of Kentucky College of Law
“It has been my pleasure to work with Chief Justice Lambert on the Kentucky Legal Education Opportunity Program. He supported the creation of KLEO as a way to give scholarships to economically disadvantaged Kentucky residents. I applaud his efforts to help make law school available to all citizens who want to earn a law degree.”

Anthony M. Wilhoit
Retired Chief Judge of the Kentucky Court of Appeals
and current Executive Director of the Kentucky Legislative Ethics Commission
“Chief Justice Lambert gave impetus to the first committee in Kentucky to encourage ethical campaign behavior for judges in anticipation of the judicial elections taking place in 2006. I admire the high standards he sets for both sitting judges and those running for election.”

Supreme Court of Kentucky
The Supreme Court is the state court of last resort and the final interpreter of Kentucky law.
Seven justices sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be “published,? which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.

The Administrative Office of the Courts supports the activities of more than 3,400 Kentucky Court of Justice employees, including the elected offices of justices, judges and circuit court clerks. As the fiscal agent for the Court of Justice, the AOC prepares a biennial budget recommendation and executes the Judicial Branch budget. The AOC works closely with the Chief Justice to ensure the Court of Justice fulfills its statutory duties as stated in the Kentucky Constitution. These duties include serving as the fiscal agent for the court system; providing oversight and administration of court facilities; maintaining data processing systems; dispersing supplies and equipment; administering personnel policies and payroll; overseeing state pretrial and juvenile services programs; and offering educational programs for judges, circuit court clerks and support staff.
### sees possible plan by Ct. of Appeals Judge Dyche to withdraw and allow someone to file by deadline on Aug. 8th. to replace him.

Monday, August 7th, 2006

The following article is posted by Mark Nickolas on

Will There Be More Gaming Of Judicial Elections Tomorrow?

A very astute reader (or knowledgeable insider) e-mailed me the following moments ago regarding the vacant Court of Appeals seat previously held by Robbie Dyche who recently retired, but whose name remains on the November ballot unopposed, regardless:
If Judge Dyche withdraws from the Court of Appeals race tomorrow on August 8,2006 someone could follow him into the Secretary of State’s office, file his/her candidacy papers, and be unopposed for the eight year term before anyone is the wiser. See KRS 118A.100 (2) and (3).
Sure enough, here how those subsections read:

(2) If in a regular election for judicial office no candidates nominated as provided in KRS 118A.060 are available due to death, incapacity, or withdrawal, and the candidates have not been replaced as provided in KRS 118A.060, the election to fill the regular term shall be conducted in the manner prescribed in subsections (3) through (11) of this section.

(3) Each candidate shall file a petition for candidacy with the Secretary of State not earlier than the first Wednesday after the first Monday in November of the year preceding the year in which the election for the unexpired term will be held and not later than the second Tuesday in August preceding the day fixed by law for holding the regular election for the unexpired term. The petition shall be filed no later than 4 p.m. local time at the place of filing when filed on the last date on which the papers are permitted to be filed.

Did you catch that? Tomorrow would be the last day when candidates for judicial vacancies due to “withdrawal” may file for the fall election. Of course, Dyche has not yet withdrawn, but if he were to formally withdraw tomorrow at, say, 3:45 pm, there would be just enough time for someone else to file and run unopposed for an 8-year term to one of only 14 Court of Appeals seats in the entire state.

The filing fee is $200 to file candidacy papers, your form needs the signature of two voters from the district, you must have lived
in the district for the past two years and practiced law for at least 8 years.
You can view the candidacy papers at the Secretary of State’s website.
 (Go to to pages 13 and 43-45 of the booklet posted there on filing procedures) Your local Circuit Clerk may have the required candidacy papers.


Supreme Court Upholds Affirmative Action in Law School admissions.

Monday, August 7th, 2006

Civil rights and union leaders applauded the U.S. Supreme Court decision, on a 5-4 vote, upholding the University of Michigan law school’s affirmative action admissions program.

 “The decision is a victory for America’s working families because it preserves the important principle thats of a diverse student body that benefits institutions of higher learning and, ultimately, America’s workplaces and our communities,? said AFL-CIO President John Sweeney.

 The high court ruled on two cases involving lawsuits filed against the University of Michigan. The suits challenged the university’s affirmative action policies in the undergraduate and law school programs, alleging they discriminate against nonminority applicants on the basis of race. In both programs, the university adopted admissions guidelines that would weigh various factors, including the applicant’s race. The justices upheld the law school program entirely. “The Equal Protection Clause does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body,? Justice Sandra Day O’Connor wrote in the law school case, Grutter v. Bollinger.

 “The court listened to the views of America’s foremost military and corporate leaders and recognized that America’s national security and American businesses benefit by recruiting men and women from diverse races, ethnicities and backgrounds,? said Wade Henderson, executive director of the Leadership Conference on Civil Rights, a national coalition of more than 180 civil rights organizations, including the AFL-CIO and several affiliated unions.

 In the companion case of Gratz v. Bollinger, the court ruled the undergraduate admissions program, which uses a system that assigns points for several factors, including race, is unconstitutional. In the court majority’s view, the use of race in the undergraduate admission program was not tailored narrowly enough to survive strict scrutiny because the program assigned automatic credit for race, instead of providing for “individualized consideration? of the applicants’ characteristics. However, “in the end, that will not be a serious impediment to the effective implementation of a race-sensitive program to achieve diversity,? Henderson said.


Even if the court had struck down Michigan’s programs, it would not have ended the practice of affirmative action. The court’s ruling only applies to affirmative action in higher education admissions and does not affect affirmative action plans in private businesses and required by previous presidential orders in government contracting.


The AFL-CIO filed an amicus brief—a brief filed by an organization not a party to the suit—with the Supreme Court in support of the University of Michigan’s affirmative action plans. The federation argued that the university presented compelling evidence of the educational benefits of the diverse student body created by the challenged admissions policies, most importantly the reduction in biases and prejudices that students will carry with them into America’s workplaces, thereby reducing employment discrimination.


The Bush administration opposed the University of Michigan plans before the high court, a move that Sweeney called “outrageous and short-sighted.?  The White House supports so-called percent plans, which dictate a certain percentage of every graduating class of every high school in the state be admitted to a state school, as they are in California, Florida and Texas. But a study by the Harvard University Civil Rights Project shows percent plans are not effective replacements for traditional affirmative action. 


“President Bush’s decision to take a stand that would push America backwards, while shocking, is just the latest blow against the advancements of women, people of color, workers and the poor,? Sweeney said. “He has nominated judges and other top leaders with abysmal civil and human rights records, rolled back workers’ safety protections and other workplace rights and cut programs that help poor families.?


Many usual allies of the administration—large corporations such as General Motors and Coca-Cola, the U.S Chamber of Commerce and several military leaders such as retired Gen. Norman Schwarzkopf—publicly supported the Michigan program or filed briefs with the court.


Hundreds of student and union activists from across the nation rallied in Washington, D.C., in support of affirmative action in the nation’s colleges and universities on March 31, the day before the Supreme Court heard oral arguments in the Michigan cases.


Lower federal courts had upheld both affirmative action plans. A U.S. District Court and the U.S. Court of Appeals for the 6th Circuit found that Michigan’s system of treating minority status as one of many factors was constitutional. Those cases were appealed to the Supreme Court, setting the stage for the June 23 decisions.


Other recent attacks on affirmative action have taken place in California, where Proposition 209 amended the state constitution to ban affirmative action in higher education admissions as well as public employment and contracting. In Florida, Gov. Jeb Bush (R) issued an executive order eliminating the use of race and gender in college admissions as well as in government employment and contracting.

New Shoot in Self Defense laws allow shooting in defense of property. 15 states including Kentucky have adopted these laws.

Monday, August 7th, 2006

By ADAM LIPTAK  NY TIMES In the last year, 15 states have enacted laws that expand the right of self-defense, allowing crime victims to use deadly force in situations that might formerly have subjected them to prosecution for murder.
Supporters call them “stand your ground? laws. Opponents call them “shoot first? laws.
Thanks to this sort of law, a prostitute in Port Richey, Fla., who killed her 72-year-old client with his own gun rather than flee was not charged last month. Similarly, the police in Clearwater, Fla., did not arrest a man who shot a neighbor in early June after a shouting match over putting out garbage, though the authorities say they are still reviewing the evidence.
The first of the new laws took effect in Florida in October, and cases under it are now reaching prosecutors and juries there. The other laws, mostly in Southern and Midwestern states, were enacted this year, according to the National Rifle Association, which has enthusiastically promoted them.
Florida does not keep comprehensive records on the impact of its new law, but prosecutors and defense lawyers there agree that fewer people who claim self-defense are being charged or convicted.
The Florida law, which served as a model for the others, gives people the right to use deadly force against intruders entering their homes. They no longer need to prove that they feared for their safety, only that the person they killed had intruded unlawfully and forcefully. The law also extends this principle to vehicles.
In addition, the law does away with an earlier requirement that a person attacked in a public place must retreat if possible. Now, that same person, in the law’s words, “has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force.? The law also forbids the arrest, detention or prosecution of the people covered by the law, and it prohibits civil suits against them.
The central innovation in the Florida law, said Anthony J. Sebok, a professor at Brooklyn Law School, is not its elimination of the duty to retreat, which has been eroding nationally through judicial decisions, but in expanding the right to shoot intruders who pose no threat to the occupant’s safety.
“In effect,? Professor Sebok said, “the law allows citizens to kill other citizens in defense of property.?
This month, a jury in West Palm Beach, Fla., will hear the retrial of a murder case that illustrates the dividing line between the old law and the new one. In November 2004, before the new law was enacted, a cabdriver in West Palm Beach killed a drunken passenger in an altercation after dropping him off.
The first jury deadlocked 9-to-3 in favor of convicting the driver, Robert Lee Smiley Jr., said Henry Munnilal, the jury foreman.
“Mr. Smiley had a lot of chances to retreat and to avoid an escalation,? said Mr. Munnilal, a 62-year-old accountant. “He could have just gotten in his cab and left. The thing could have been avoided, and a man’s life would have been saved.?
Mr. Smiley tried to invoke the new law, which does away with the duty to retreat and would almost certainly have meant his acquittal, but an appeals court refused to apply it retroactively. He has appealed that issue to the Florida Supreme Court.
Wayne LaPierre, executive vice president of the N.R.A., said the Florida law had sent a needed message to law-abiding citizens.
“If they make a decision to save their lives in the split second they are being attacked, the law is on their side,? Mr. LaPierre said. “Good people make good decisions. That’s why they’re good people. If you’re going to empower someone, empower the crime victim.?
The N.R.A. said it would lobby for versions of the law in eight more states in 2007.
Sarah Brady, chairwoman of the Brady Campaign to Prevent Gun Violence, said her group would fight those efforts. “In a way,? Ms. Brady said of the new laws, “it’s a license to kill.?
Many prosecutors oppose the laws, saying they are unnecessary at best and pernicious at worst. “They’re basically giving citizens more rights to use deadly force than we give police officers, and with less review,? said Paul A. Logli, president of the National District Attorneys Association.
But some legal experts doubt the laws will make a practical difference. “It’s inconceivable to me that one in a hundred Floridians could tell you how the law has changed,? said Gary Kleck, who teaches criminology at Florida State University.
Even before the new laws, Professor Kleck added, claims of self-defense were often accepted. “In the South,? he said, “they more or less give the benefit of the doubt to the alleged victim’s account.?
The case involving the Port Richey prostitute, Jacqueline Galas, turned on the new law, said Michael Halkitis, division director of the state attorney’s office in nearby New Port Richey. Ms. Galas, 23, said that a longtime client, Frank Labiento, 72, threatened to kill her and then kill himself last month. A suicide note he had left and other evidence supported her contention.
The law came into play when Ms. Galas grabbed Mr. Labiento’s gun and chose not to flee but to kill him. “Before that law,? Mr. Halkitis said, “before you could use deadly force, you had to retreat. Under the new law, you don’t have to do that.?
The decision not to charge Ms. Galas was straightforward, Mr. Halkitis said. “It would have been a more difficult situation with the old law,? he said, “much more difficult.?
In the case of the West Palm Beach cabdriver, Mr. Smiley, then 56, killed Jimmie Morningstar, 43. A sports bar had paid Mr. Smiley $10 to drive Mr. Morningstar home in the early morning of Nov. 6, 2004.
Mr. Morningstar was apparently reluctant to leave the cab once it reached its destination, and Mr. Smiley used a stun gun to hasten his exit. Once outside the cab, Mr. Morningstar flashed a knife, Mr. Smiley testified at his first trial, though one was never found. Mr. Smiley, who had gotten out of his cab, reacted by shooting at his passenger’s feet and then into his body, killing him.
Cliff Morningstar, the dead man’s uncle, said he was baffled by the killing. “He had a radio,? Mr. Morningstar said of Mr. Smiley. “He could have gotten in his car and left. He could have shot him in his knee.?
Carey Haughwout, the public defender who represents Mr. Smiley, conceded that no knife was found. “However,? Ms. Haughwout said, “there is evidence to support that the victim came at Smiley after Smiley fired two warning shots, and that he did have something in his hand.?
In April, a Florida appeals court indicated that the new law, had it applied to Mr. Smiley’s case, would have affected its outcome.
“Prior to the legislative enactment, a person was required to ‘retreat to the wall’ before using his or her right of self-defense by exercising deadly force,? Judge Martha C. Warner wrote. The new law, Judge Warner said, abolished that duty.
Jason M. Rosenbloom, the man shot by his neighbor in Clearwater, said his case illustrated the flaws in the Florida law. “Had it been a year and a half ago, he could have been arrested for attempted murder,? Mr. Rosenbloom said of his neighbor, Kenneth Allen.
“I was in T-shirt and shorts,? Mr. Rosenbloom said, recalling the day he knocked on Mr. Allen’s door. Mr. Allen, a retired Virginia police officer, had lodged a complaint with the local authorities, taking Mr. Rosenbloom to task for putting out eight bags of garbage, though local ordinances allow only six.
“I was no threat,? Mr. Rosenbloom said. “I had no weapon.?
The men exchanged heated words. “He closed the door and then opened the door,? Mr. Rosenbloom said of Mr. Allen. “He had a gun. I turned around to put my hands up. He didn’t even say a word, and he fired once into my stomach. I bent over, and he shot me in the chest.?
Mr. Allen, whose phone number is out of service and who could not be reached for comment, told The St. Petersburg Times that Mr. Rosenbloom had had his foot in the door and had tried to rush into the house, an assertion Mr. Rosenbloom denied.

Ky. Supreme Court candidates need your financial support. See addresses to contact them.

Sunday, August 6th, 2006

    The following is a list of the candidates in contested races for the Kentucky Supreme Court on the November 7th. ballot.  We urge everyone to support their candidates by mailing them a check. You can be sure it will be appreciated. 

When sending a check please include your name, address, age, and occupation.  They will need this information for reporting on their campaign finance reports.

Supreme Court District 1:

Rick Johnson
12314 State Route 131
City Symsonia
State : Kentucky
Zip Code : 42082


Bill Cunningham
629 East Dogwood Dr.
City : Kuttawa
State : Kentucky
Zip Code : 42055
Supreme Court District 4:

Ann Shake
Cotton & Allen, 200 S. Fifth St.
City : Louisville
State : Kentucky
Zip Code : 40202


William McAnulty
2112 Strathmoor Blvd
City : Louisville
State : Kentucky
Zip Code : 40205

Supreme Court District 5:

Mary Noble
2217 Dogwood Trace Blvd.
City : Lexington
State : Kentucky
Zip Code : 40514


John Roach
P.O. Box 21765
City : Lexington
State : Kentucky
Zip Code : 40522
Supreme Court District 6:

Wil Schroder
 2403 Stonewell Trail
City : Ft. Mitchell
State : Kentucky
Zip Code : 41017


Marcus Carey
: 10285 Hwy 127 N
City : Sparta
State : Kentucky
Zip Code : 41086

This weeks Ky. Ct. of Appeals decisions posted on

Friday, August 4th, 2006

One sentence review of 25 decisions handed down by Ky. Court of Appeals at 2 PM on August 4, 2006. Join LawReader at and access the full text and full synopsis of each case. Only $34.99 a month.

1 the Commonwealth failed to present sufficient direct evidence demonstrating the .22 caliber rifle was capable of expelling “a projectile by the action of an explosive? as required under KRS 527.040 and KRS 527.010(4).
2 TO BE PUBLISHED: Paducah School shooter entitled to retrospective competency hearing: we vacate the June 30, 2004, order of the McCracken Circuit Court and remand this case for the court to determine whether a retrospective competency hearing is permissible and, if so, to conduct such a hearing.
3 Physician failed to raise defamation issue in timely manner:  
The record reveals a claim of defamation was never raised in the pleadings before the circuit court. “The Court of Appeals is without authority to review issues not raised in or decided by the trial court
4 TO BE PUBLISHED: the trial court’s denial of Barger’s suppression motion was proper as the totality of the circumstances supported the police officer’s reasonable and articulable suspicion of criminal activity thereby justifying the investigatory stop. See Dissent by Judge Buckingham
5 A domestic judgment of a court of general jurisdiction is presumed regular and valid unless the record affirmatively shows the contrary.
6 “the intention of the donor may not only be ‘expressed in words, actions, or a combination thereof,’ but ‘may be inferred from the surrounding facts and circumstances, including the relationship of the parties [,]’ as well as ‘the conduct of the parties [.]
7 TO BE PUBLISHED: KRS 533.250, which established pretrial diversion in 1998, does not apply retroactively
8 A (civil defendant is not liable when the original negligence is remote and only furnishes the occasion of the injury.
9 The DRC failed to find whether Karen was unable to support herself through appropriate employment. However, we can reasonably infer from the DRC’s findings that he found that Karen was unable to do the same at the time of the final hearing.
10 Appellant accepted the fellowship in Chicago knowing he would earn less money, so he was voluntarily underemployed as defined by KRS 403.212(2)(d).
11 appellant’s sentence was not an unlawful double enhancement
12 Probation properly revoked for overuse of prescription medication
13 The court erred by not make a specific finding as to the marital or nonmarital nature of this property – bed to be returned to husband as it was premarital property.
14 Tenant wearing pajamas with footies who slipped on ice entitled to present her claim for slip and fall against Landlord.  -  A landlord owes its tenants a duty of care to maintain all common areas under the landlord’s control in a safe condition
15 To determine whether the relationship constitutes an employer and independent contractor relationship, the most important factor is whether the employer retains the right to supervise and control the work.
16 the court has discretion to fix the beginning of  child support obligation payments
17 Absent probable cause and the existence of exigent circumstances, the police may not conduct warrantless entries into a suspect’s home to make a felony arrest – Exigent circumstances found here.
18 when appellant voluntarily dismissed his underlying personal injury claim against the alleged tortfeasor, he lost any right to have State Farm settle his bad faith claim.
19 damages were too speculative to justify a claim.
20 the circuit court properly denied his RCr 11.42 motion
21 Worker’s disability benefits denied as his psychological injury did not result from a physical trauma
22 ALJ had the prerogative of electing to rely on that evidence. We cannot substitute our judgment for that of the ALJ.
23 there is substantial evidence to support a finding in favor of Marcum. Consequently, the court’s determination of the child’s best interests was fully within the circuit court’s broad discretionary power.
24 the Administrative Law Judge’s (ALJ) decision denying Bullock’s claim for permanent partial disability benefits (PPD) and future medical benefits was correct.
25 Both parties in a workers’ compensation claim settlement can reopen the claim if they adhere to the statutory requirements discussed in the preceding paragraphs

Top military lawyers oppose Bush plan to expand military court powers

Friday, August 4th, 2006

By Tom Regan  Christian Science

Top US military lawyers, in a moment of “rare, open disagreement” with the civilian administration, told a Senate hearing this week that they do not agree with key provisions of a draft Bush administration plan for special military courts. The Washington Post reports that the military lawyers said they do not see “eye to eye with the senior Bush administration political appointees who developed the plan and presented it to them last week.” They worry that the new plan – designed to replace one struck down by the US Supreme Court – would place US servicemen and women in jeopardy around the world.

“The United States should be an example to the world, sir,” Maj. Gen. Scott C. Black, judge advocate general of the Army, told Sen. Russell Feingold (D) of Wisconsin at the Senate Judiciary Committee hearing. “Reciprocity is something that weighs heavily in all of the discussions that we are undertaking as we develop the process and rules for the commissions, and that’s the exact reason, sir. The treatment of soldiers who will be captured on future battlefields is of paramount concern.”

The Post also reports that the draft plan would give military courts the right to try people who are not connected with the Taliban and Al Qaeda and who are not “directly involved with acts of international terrorism.” The new plan would allow the Secretary of Defense “to add crimes at will to those under the military court’s jurisdiction.”

Under the proposed procedures, defendants would lack rights to confront accusers, exclude hearsay accusations, or bar evidence obtained through rough or coercive interrogations. They would not be guaranteed a public or speedy trial and would lack the right to choose their military counsel, who in turn would not be guaranteed equal access to evidence held by prosecutors.

Detainees would also not be guaranteed the right to be present at their own trials, if their absence is deemed necessary to protect national security or individuals.

The military lawyers also objected to the provision that would allow a judge to give classified evidence to a defendant’s military lawyers, but not to the defendant himself, and to the provision that evidence obtained the admission of evidence obtained under coercive interrogations. “Sir, I don’t believe that a statement that is obtained under coercive – under torture, certainly, and under coercive measures should be admissible,” [Maj. Gen. Black] told Republican Judiciary Committee Chairman Arlen Specter of Pennsylvania.

The Associated Press reports that Attorney General Alberto Gonzalez held the administration’s “hard line” when he appeared in front of a Senate panel later in the day.

“We must not share with captured terrorists the highly sensitive intelligence that may be relevant to military commission proceedings,” Gonzales told the Senate Armed Services Committee.

Gonzales said detainee legislation also should permit hearsay and coerced testimony, if deemed “reliable” by a judge. These approaches are not permitted under the Uniform Code of Military Justice, or UCMJ, which is used for military courts-martial.

United Press International reports that Republican Sen. John McCain of Arizona took exception to Mr. Gonzalez’s comments about the use of coercive evidence. “I think that if you practice illegal, inhumane treatment and allow that to be admissible in court, [said McCain] that would be a radical departure from any practice that this nation” has used before.

Gonzalez also confirmed a Washington Post story that the White House plans to include language in the final form of the law that would “protect service personnel and civilians from domestic war-crimes prosecutions for any violations of the international laws of war that are committed under administration policies that have been withdrawn or ruled illegal.”

An editorial in the ContraCosta Times of California argues that the plan would pose a direct threat to the liberty of Americans in ways that go beyond concerns about wiretapping phones or tracing phone calls.

Legal experts say [the plan] could authorize the military to detain indefinitely US citizens who had only tenuous ties to terror networks. Scott Silliman, a retired Air Force judge advocate, went even further. He said the broad definition of enemy combatant could include US citizens who are loosely suspected of terrorist ties. Such a person would lose all the rights of a civilian court …

Any detention bill must be far more narrowly drawn to include only enemy combatants who are caught on a battlefield during armed conflict. Even they should be subject to proper military justice. No law should pose a threat to anyone in this country who might be suspected of being tied to a terror group. We trust that there are enough patriots in Congress to kill a measure that insults all freedom-loving Americans.

In an editorial, the Los Angeles Times reports that, thanks to Republican lawmakers with military experience and the military lawyers, the Bush administration has probably abandoned the notion that “Congress should simply rubber-stamp whatever procedures the president deems sufficient to try suspected terrorists at Guantanamo.”

Finally, the Associated Press reports that detainees at Guantanamo Bay “have attacked their military guards hundreds of times, turning broken toilet parts, utensils, radios and even a bloody lizard tail into makeshift weapons.” The report indicates that while the attacks are numerous, serious injuries are rare.

North Carolina creates court of last resort to review claims of innocence

Friday, August 4th, 2006

The state is the first to create a panel with the power to reconsider cases and send them to judges for review. It will start in the fall.  By Henry Weinstein, Times Staff Writer August 4, 2006

North Carolina on Thursday became the first state to create an innocence commission, giving inmates who claim they were wrongly convicted a chance for freedom after their court appeals have failed.

Gov. Michael F. Easley, a former prosecutor and attorney general, signed the measure into law after it passed both houses of the Legislature by wide margins.
“Its creation gives our criminal justice system yet another safeguard by helping ensure that the people in our prisons in fact belong there,” Easley, a Democrat, said in a statement.

The North Carolina Innocence Inquiry Commission, which is to begin its work in the fall, is patterned after one created in Britain in 1997.

The panel will have eight members who are empowered to subpoena records and witnesses and can consider new evidence not presented in court. If five of the commission members find that a claim of innocence deserves review, the case will be sent to a panel of three state Superior Court judges. Those jurists then would have to decide unanimously that an inmate was actually innocent in order for the conviction to be overturned.

Until now, inmates in North Carolina — as in many other states — were unable to make free-standing claims of innocence. In order to get relief from a court, an inmate had to show prosecutorial misconduct or some other legal error.

North Carolina created the commission after a three-year study launched by its Supreme Court’s then-chief justice, I. Beverly Lake Jr., a conservative Republican who became concerned after several high-profile convictions were overturned.

“I think it will be a significant step forward for the criminal justice system in North Carolina and across the nation,” Lake, who retired from the state’s highest court in February, said in a telephone interview Thursday. “I think other states may follow suit.”

California is one of several states examining the issue of wrongful convictions. A commission in California has recommended that eyewitness identification procedures be changed and that all interrogations of felony suspects in custody be electronically recorded. But no state has gone as far as North Carolina.

Richard Rosen, a University of North Carolina law professor who served on Lake’s review commission, said Thursday’s action “acknowledges the problem of wrongful convictions and the reality we face that courts do not always do a good job of correcting that problem.”

The study group — which included trial judges, prosecutors, police chiefs, leaders of victim assistance groups, defense lawyers and law professors — “established very early that the purpose of the commission was not to give either prosecutors or the defense any advantage,” Rosen said. “Our sole purpose was to help the innocent and not appreciably lessen the ability to convict.”

Among the cases the panel examined was that of Ronald Cotton, who had been sentenced to life in prison plus 54 years on a rape conviction. He served 10 1/2 years before being cleared in 1995 by DNA testing.

Jennifer Thompson, the victim who mistakenly identified Cotton, has spoken out about the potential for erroneous eyewitness identification.

Lesly Jean, a convicted rapist, also served nearly a decade in a North Carolina prison before he too was cleared by DNA evidence. State Assemblyman Richard B. Glazier, a Democrat who served as Jean’s lawyer for nine years, introduced the legislation that created the new innocence commission.

Glazier said that his experience representing Jean taught him “the human frailties of the system and of the need to have a fail-safe when we make an error.”

The British commission has reviewed about 8,500 cases since 1997 and has sent more than 300 of those back to court. About 220 verdicts have been reversed as a result of that commission’s work.

According to the Innocence Project at the Benjamin N. Cardozo School of Law in New York, 183 prisoners in the United States have been exonerated since 1986 as a result of DNA testing — including 14 who were on death row. And since 1973, according to the Death Penalty Information Center in Washington, 123 inmates convicted of capital crimes have been freed from prison after a court found they were wrongfully convicted.

Citizens group formed in Colorado to defeat ballot initiative that would apply retroactive term limits to judiciary.

Thursday, August 3rd, 2006

Citizens to Protect Colorado Courts Will Initiate Bipartisan Campaign Against “Limit the Judges? Ballot Initiative

A Coalition Including Attorney General John Suthers, Denver Metro Chamber of Commerce President Joe Blake, Colorado Judicial Institute Chair Gale Miller, and Denver District Attorney Mitch Morrissey Join to Say No to Judicial Term Limits

DENVER, Colorado – August 2, 2006 – Citizens to Protect Colorado Courts (CPCC) will unite against the amendment for judicial term limits. CPCC Chairman John Moye, Attorney General John Suthers, Denver Metro Chamber of Commerce President Joe Blake and Denver District Attorney Mitch Morrissey, as well as other business and community leaders including the League of Women Voters, the Colorado Judicial Institute and Common Cause have joined to defeat this retroactive constitutional amendment. “This amendment is a bad idea; it will decimate the judicial system by wiping out 185 years of experience, and it defeats voters’ intent by going backward to reverse decisions they already have made,? says Moye.

“This is a misguided measure that will be devastating to Colorado courts,? says Suthers. “Because it is retroactive, a majority of Colorado’s justices and judges will be kicked off the bench. This will be bad for Colorado citizens and the judiciary.?

In Colorado, judges are held accountable on many levels, with a process that includes nominating commissions of non-lawyers and lawyers to review applicants, independent judicial review, input from the public, internal disciplinary controls, and retention elections so that the public can remove any judges if they so wish.

“This is an extreme measure that is unnecessary,? says Peter Willis, past-chair of the Colorado Judicial Institute — a non-partisan and independent citizen’s group dedicated to judicial excellence. “Not only are there already rigorous accountability standards in place, but Colorado’s system has worked for 40 years, and was recently ranked in a U.S. Chamber of Commerce poll as sixth in the nation for fairness and ninth for competence.?

Because the initiative is a retroactive Constitutional Amendment, 71% of the Colorado Supreme Court justices and 37% of the Court of Appeals judges will be removed from the bench at the same time — including those who voters already have voted to retain.

CPCC Chairman Moye says: “We need to keep politics out of the courtroom. Our current system allows an independent judiciary to check the power of elected officials. This will increase the power of a few politicians. We can’t have them messing with our courts.?

Says Suthers: “Colorado courts already are accountable to the law and the Constitution. They shouldn’t be held accountable to politicians and campaigns. We need to defeat political attempts that want courts to deliver special-interest results, not justice.?


Have you ever wondered what the Castle between Versailles and Lexington looked like inside…See the pictures.

Thursday, August 3rd, 2006

Go to:

I believe most of this burned down in the last year or so.  Does anyone know if it is being rebuilt?

Murray University nominees sue over their rejection by Gov. Fletcher. Governor bases his case on statute superceded by later statute.

Thursday, August 3rd, 2006

Three nominees of the Murray State University Board of Regents sued Gov. Ernie Fletcher yesteday charging he broke state law by refusing to appoint one of them to the board.

The nominees cite KRS 164.005(5)(a) which imposes upon the Governor a mandatory duty to appoint one of the three nominees to the Board of Regents.

The three nominees are seeking the appointment of one of their number to the Board.

The Fletcher Administration apparently relied on KRS 12.070(3) which says in part: “Where appointments to administrative boards and commissions are made from lists submited to him, the Governor may reject the list and require that other lists be submitted.

KRS 12.070(3) was adopted and became effective on July 15, 1994.  KRS 164.005(5)(a), which refers specifically to Boards of Regents and which included the mandatory language was adopted and became effective on June 24, 2003.

In the construction of statutes, the later statute generally takes precedence over a prior statute, and the more specific language of a statute takes precendence over general language.

KRS 164.005(5)(a) was adopted within months of a decision by the Ky. Supreme Court dealing with rejection of lists of candidates.