Archive for September, 2006

Don McNay authors first book on Fletcher Administration – Book signing on Oct. 9th. in Lexington

Thursday, September 28th, 2006

The Unbridled World of Ernie Fletcher has been officially released. Most Kentucky bookstores, including Joseph-Beth, are waiting on copies of the book but should have them by early next week.

 The official book kick off and book signing will be Monday, October 9th at 7 p.m. at the Joseph Beth Booksellers In Lexington, Ky. 

 I  will do a presentation, book reading, book signing and answer questions.  It will be a very nice event so please come and invite hundreds of your closest friends.
I will invite the Governor but suspect he will be in Ireland, Germany or some place far from me.

I did an  interview today with the Courier Journal for what sounds like an interesting article.  Keep your eyes open for that.

Amazon has been selling the book for about a week and sales are going very well.    You can purchase a book there or review it yourself.   I would really appreciate your taking time to leave comments about the book.

Enclosed is a news release that Susan DeHart wrote about the book.

 For more information contact:  Susan DeHart at 1-800 Mr. McNay (1-800-676-2629) or
The Unbridled World of Ernie Fletcher now available.

 Governor Ernie Fletcher’s reign has been filled with a colorful array of political victories, disappoints and indictments, and with the campaign trail in sight, this is a time for Kentuckians to reflect upon Fletcher’s leadership.

 Don McNay, a syndicated columnist and author of the book, The Unbridled World of Ernie Fletcher: Reflections on Kentucky’s Governor  is unmasking the leader, gathering up the pieces and giving Kentuckians new perspectives on the big question of how did Fletcher go from cleaning up the mess to ending  up in one.

 “This is not a biography,� stated McNay, “But a basis for shedding new light on Governor Fletcher’s journey to his current political state and future as governor.�

 Having been inspired to return to writing by Governor Fletcher’s inauguration after a twenty year hiatus, McNay, Chairman of McNay Settlement Group, Inc., has made a successful career out of Fletcher’s credits, failures, ignorance and unconventional behavior.

 McNay writes, “I can’t imagine another governor buzzing the United States Capitol in an airplane, building a secret door to their office, or driving a limo the 500 feet between their office and home.�

Using rock n’ roll analogies coupled with a sense of humor, McNay’s book tackles important political issues effecting Kentuckians and reveals insightful parallels into Governor Fletcher’s rocky attempts to “cleaning up the mess in Frankfort.�

In an excerpt from the book, McNay writes:  “Like Frank Sinatra, Governor Fletcher has had his ups and downs in life. Sticking the state with a $645,075 bill for a bumper sticker was not one of his up moments.�

 Al Cross, political writer and Director of the Institute of Rural Journalism and Community Issues, proclaims, “Don McNay came to journalism relatively late, but he quickly proved that he has some attributes of fine journalists—a nose for news, a sense of justice, a capacity for outrage about injustice, a sympathy for the average person, and a willingness to speak truth to power.�

 John Eckberg, business reporter for The Cincinnati Enquirer and author of Road Dog and The Success Effect, praises McNay for his fearlessness and willingness to take on powerful interests.

“He is what the First Amendment was all about two centuries back,� exclaimed Eckberg, “Do yourself a favor and buy this book.�

 Former Congressional candidate Rick Robinson said, “Thank God the SOB wasn’t writing back when I ran for office.�

 McNay’s book is being published through AuthorHouse, based in Bloomington, Indiana. The Unbridled World of Ernie Fletcher: Reflections on Kentucky’s.

  To find out more about the book, how to purchase a copy or view a list of upcoming book tour dates, please visit

 To schedule an interview, book signing or speaking engagement for Don McNay, please contact Susan DeHart at 1-800-Mr. McNay (800) 676-2629 or

You can also contact Don McNay directly at or (859) 626-3600 ext 25.

The Threat to Judicial Independence – Jail 4 Judges

Wednesday, September 27th, 2006

The Threat to Judicial Independence – Jail 4 Judges
In November, South Dakotans will vote on a state constitutional amendment being advocated by a national group called “JAIL 4 Judges.” If the amendment passes, it would eliminate judicial immunity, and enable a special grand jury to censure judges for their official legal determinations. Although the amendment’s supporters claim they seek a “judicial accountability initiative law” (JAIL), they aspire to something far more sinister — judicial intimidation. Indeed, the national Web site of JAIL 4 Judges boasts with striking candor that the organization “has that intimidation factor flowing through the judicial system.”

These people of course have a web site.  Please put on surgical  gloves before accessing this site:


They are active in a number of states including California, Florida, and South Dakota.
“ a proposed amendment to the Federal Constitution and those of the States as a check against judicial misconduct and abuse of power.

The initiative creates three statewide Special Grand Juries in California for the sole purpose of investigating complaints against judges.

The Special Grand Juries will have the power to sanction judges by levying fines and forfeitures against them; and for third-time offenses, removal from the bench.

The Special Grand Juries will also have the power to indict judges and subject them to criminal proceedings before special trial juries who may sentence as well as convict the offending judge.”

    Their site says then want to fine, censure, convict and send judges to prison. 

Judge Karen Caldwell suspends law limiting kooks disrupting military funerals.

Tuesday, September 26th, 2006

The Associated Press has reported that U.S. District Judge Karen Caldwell has temporarily suspended Kentucky’s new law restricting public demonstrations within 300 feet of a military funeral.
Some nuts from some silly church have pooled their pennies and taken bus rides from Iowa or where ever their ilk congregate, and vocally shouted down the mourners at funeral services.

They some how believe that the poor soldier deserved to die, and in their crippled little minds find this as an opportunity to spew hatred towards gays.

Judge Caldwell believes the 300 foot zone of silence adopted by the 2006 session of the General Assembly is excessive and will interfere with legitimate discourse in excess of what is needed to silence the people with the pointed heads and a better law can be written. 

It’s sometimes tough being a judge and we feel for Judge Caldwell on this one. She does have a point, and we should remember that if we surrender free speech to these nuts, next time they will be trying to limit  protests of the next war of pre-emption or blanket pardoning of state workers.

John Ed Pearce shuffles off. Leaves massive void.

Tuesday, September 26th, 2006

We appreciate good writers, we love great writers, but we get passionate about poets.  John Ed Pearce was such a poet.  He leaves a massive void and we all have suffered from his passing.

For more about John Ed Pearce please see the excellent article published by the Louisville Courier Journal where he worked for so many years.  Oped: John Ed Pearce (1919-2006): An appreciation

Declassified Key Judgments of the National Intelligence Estimate

Tuesday, September 26th, 2006

LawReader Editors note: This is the declassified portion of the National Intelligence Estimate released by the Bush Administration on Sept. 26th.  The report was originally written in April.

Declassified Key Judgments of the National Intelligence Estimate .
Trends in Global Terrorism: Implications for the United States.
dated April 2006

Key Judgments

United States-led counterterrorism efforts have seriously damaged the leadership of
al-Qa’ida and disrupted its operations; however, we judge that al-Qa’ida will continue to
pose the greatest threat to the Homeland and US interests abroad by a single terrorist
organization. We also assess that the global jihadist movement—which includes al-
Qa’ida, affiliated and independent terrorist groups, and emerging networks and cells—is
spreading and adapting to counterterrorism efforts.
• Although we cannot measure the extent of the spread with precision, a large body
of all-source reporting indicates that activists identifying themselves as jihadists,
although a small percentage of Muslims, are increasing in both number and
geographic dispersion.
• If this trend continues, threats to US interests at home and abroad will become
more diverse, leading to increasing attacks worldwide.
• Greater pluralism and more responsive political systems in Muslim majority
nations would alleviate some of the grievances jihadists exploit. Over time, such
progress, together with sustained, multifaceted programs targeting the
vulnerabilities of the jihadist movement and continued pressure on al-Qa’ida,
could erode support for the jihadists.
We assess that the global jihadist movement is decentralized, lacks a coherent global
strategy, and is becoming more diffuse. New jihadist networks and cells, with anti-
American agendas, are increasingly likely to emerge. The confluence of shared purpose
and dispersed actors will make it harder to find and undermine jihadist groups.
• We assess that the operational threat from self-radicalized cells will grow in
importance to US counterterrorism efforts, particularly abroad but also in the
• The jihadists regard Europe as an important venue for attacking Western interests.
Extremist networks inside the extensive Muslim diasporas in Europe facilitate
recruitment and staging for urban attacks, as illustrated by the 2004 Madrid and
2005 London bombings.

We assess that the Iraq jihad is shaping a new generation of terrorist leaders and
operatives; perceived jihadist success there would inspire more fighters to continue the
struggle elsewhere.
• The Iraq conflict has become the .cause celebre. for jihadists, breeding a deep
resentment of US involvement in the Muslim world and cultivating supporters for
the global jihadist movement. Should jihadists leaving Iraq perceive themselves,
and be perceived, to have failed, we judge fewer fighters will be inspired to carry
on the fight.
We assess that the underlying factors fueling the spread of the movement outweigh its
vulnerabilities and are likely to do so for the duration of the timeframe of this Estimate.
• Four underlying factors are fueling the spread of the jihadist movement: (1)
Entrenched grievances, such as corruption, injustice, and fear of Western
domination, leading to anger, humiliation, and a sense of powerlessness; (2) the
Iraq .jihad;. (3) the slow pace of real and sustained economic, social, and
political reforms in many Muslim majority nations; and (4) pervasive anti-US
sentiment among most Muslims.all of which jihadists exploit.
Concomitant vulnerabilities in the jihadist movement have emerged that, if fully exposed
and exploited, could begin to slow the spread of the movement. They include
dependence on the continuation of Muslim-related conflicts, the limited appeal of the
jihadists. radical ideology, the emergence of respected voices of moderation, and
criticism of the violent tactics employed against mostly Muslim citizens.
• The jihadists. greatest vulnerability is that their ultimate political
ultra-conservative interpretation of shari.a-based governance spanning the
Muslim unpopular with the vast majority of Muslims. Exposing the
religious and political straitjacket that is implied by the jihadists. propaganda
would help to divide them from the audiences they seek to persuade.
• Recent condemnations of violence and extremist religious interpretations by a few
notable Muslim clerics signal a trend that could facilitate the growth of a
constructive alternative to jihadist ideology: peaceful political activism. This also
could lead to the consistent and dynamic participation of broader Muslim
communities in rejecting violence, reducing the ability of radicals to capitalize on
passive community support. In this way, the Muslim mainstream emerges as the
most powerful weapon in the war on terror.
• Countering the spread of the jihadist movement will require coordinated
multilateral efforts that go well beyond operations to capture or kill terrorist
If democratic reform efforts in Muslim majority nations progress over the next five years,
political participation probably would drive a wedge between intransigent extremists and

groups willing to use the political process to achieve their local objectives. Nonetheless,
attendant reforms and potentially destabilizing transitions will create new opportunities
for jihadists to exploit.
Al-Qa’ida, now merged with Abu Mus’ab al-Zarqawi’s network, is exploiting the
situation in Iraq to attract new recruits and donors and to maintain its leadership role.
• The loss of key leaders, particularly Usama Bin Ladin, Ayman al-Zawahiri, and
al-Zarqawi, in rapid succession, probably would cause the group to fracture into
smaller groups. Although like-minded individuals would endeavor to carry on the
mission, the loss of these key leaders would exacerbate strains and disagreements.
We assess that the resulting splinter groups would, at least for a time, pose a less
serious threat to US interests than does al-Qa.ida.
• Should al-Zarqawi continue to evade capture and scale back attacks against
Muslims, we assess he could broaden his popular appeal and present a global
• The increased role of Iraqis in managing the operations of al-Qa.ida in Iraq might
lead veteran foreign jihadists to focus their efforts on external operations.
Other affiliated Sunni extremist organizations, such as Jemaah Islamiya, Ansar al-
Sunnah, and several North African groups, unless countered, are likely to expand their
reach and become more capable of multiple and/or mass-casualty attacks outside their
traditional areas of operation.
• We assess that such groups pose less of a danger to the Homeland than does al-
Qa.ida but will pose varying degrees of threat to our allies and to US interests
abroad. The focus of their attacks is likely to ebb and flow between local regime
targets and regional or global ones.
We judge that most jihadist groups.both well-known and newly formed.will use
improvised explosive devices and suicide attacks focused primarily on soft targets to
implement their asymmetric warfare strategy, and that they will attempt to conduct
sustained terrorist attacks in urban environments. Fighters with experience in Iraq are a
potential source of leadership for jihadists pursuing these tactics.
• CBRN capabilities will continue to be sought by jihadist groups.
While Iran, and to a lesser extent Syria, remain the most active state sponsors of
terrorism, many other states will be unable to prevent territory or resources from being
exploited by terrorists.
Anti-US and anti-globalization sentiment is on the rise and fueling other radical
ideologies. This could prompt some leftist, nationalist, or separatist groups to adopt
terrorist methods to attack US interests. The radicalization process is occurring more

quickly, more widely, and more anonymously in the Internet age, raising the likelihood of
surprise attacks by unknown groups whose members and supporters may be difficult to
• We judge that groups of all stripes will increasingly use the Internet to
communicate, propagandize, recruit, train, and obtain logistical and financial


U.S. Supreme Ct. October session begins Oct. 2 – No first amendment issues to be heard.

Tuesday, September 26th, 2006

By Tony Mauro – First Amendment Center legal correspondent

For the first time in years, the Supreme Court ended last term in June without agreeing to consider any First Amendment cases in the next term, which this year begins Oct. 2.

But with additions to the docket through the fall, the coming term could still produce significant First Amendment decisions on issues ranging from gag orders to school choice. First Amendment cases might even be added today, when the Court is scheduled to announce the results of its so-called “long conference,â€? held yesterday. That’s when the justices sift through hundreds of petitions that have been filed during the summer recess.

The disappearance of First Amendment cases from the argument calendar thus far results from several factors. First, last term the Court granted review in only 31 cases of any kind for the fall term, a significantly smaller number than usual. Second, commentators have noted an increased interest by the Roberts Court in bread-and-butter business cases, including antitrust, patents and employment discrimination, which might be “displacing� First Amendment and other kinds of cases from the docket. Finally, as justices themselves would say, the array of the court’s cases at any given moment is mainly a function of the kinds of appeals that are placed before it, rather than any grand design to exclude any one category.

(One case with First Amendment vapors won’t be decided on First Amendment grounds. That’s Carey v. Musladin, which involves the wearing of photo buttons in a courtroom.)

Among the cases on the agenda for yesterday’s conference were a compelled-speech case involving union fees, a challenge by famed lawyer Gloria Allred against a judge-imposed gag order, and a discrimination suit brought by a Catholic Church employee.

Details of the cases:
Church employment. In Tomic v. Catholic Diocese of Peoria, a three-judge panel of the 7th U.S. Circuit Court of Appeals, led by influential Judge Richard Posner, upheld a lower court ruling that dismissed an age-discrimination lawsuit filed by a Catholic Church organist. In the ruling, Posner affirmed the “ministerial exception� to the jurisdiction of the federal courts, which keeps federal judges out of resolving disputes involving church governance. Lawyers for organist Richard Tomic countered that doctrine in lower courts by asserting that neither his job nor the music he played had religious significance. Posner confessed he was “astonished� by that assertion, which if true would mean that “it is a matter of indifference to the Church and its flock whether the words of the Gospel are set to Handel’s Messiah or to ‘Three Blind Mice.’� The case could interest the Supreme Court because Posner wrote that while it was pending, the 2nd Circuit issued a conflicting age-discrimination decision, in essence wiping out the ministerial exception.
Lawyer gag order. In Allred v. Superior Court of the State of California, noted California lawyer Gloria Allred claims a gag order imposed on her during a murder investigation violated her First Amendment rights. Allred was hired to represent a potential witness, an unidentified minor, in the high-profile prosecution of Scott Dyleski, who was accused of murdering Pamela Vitale, a prominent California criminal defense lawyer. Soon after, Allred’s client’s house was searched, and the client was subpoenaed before a grand jury. Allred protested the actions. During court proceedings, the lawyer for the defendant asked the judge to impose a gag order to restrict public statements by the police and prosecutors. The Contra Costa district attorney joined the motion and asked that the gag extend to the defendant’s lawyer and to Allred. The judge agreed. Allred’s lawyer before the high court, Duke University School of Law professor Erwin Chemerinsky, said in the petition to the Court that the federal courts are widely split over standards for issuance of gag orders. He also asserted that the order was issued to “stifle Ms. Allred’s justifiable criticism of [the district attorney] and the actions of his office.�
Union speech. The Court has refereed several disputes between labor unions and employees who object to the use of their dues or fees to advance the union’s political agenda. The Court has said unions may collect fees from non-member employees, because the collective bargaining that unions conduct benefits the non-members. But in Abood v. Detroit Board of Education in 1977, it said these employees must be given the chance to “opt out� of letting their fees be used to fund in addition the union’s political activities. Washington state voters in 1992 approved a measure requiring instead that non-members “opt in� to allow their fees to be used for union political activities. In other words, the fees paid by non-members could not be used for political activities unless the employees affirmatively chose to allow it. The Washington attorney general accused the teachers’ union of violating the new rule and won a judgment in court, but the Washington Supreme Court said the opt-in requirement “upset the balance between nonmembers’ rights and the rights of the union.� In Washington v. Washington Education Association, the state asks the U.S. Supreme Court to reverse. Michael Reitz, the director of the Evergreen Freedom Foundation’s Labor Policy Center, which supports the state in the case, says, “Unions must learn the same lesson every first-grader learns: You must ask permission before taking something that does not belong to you.�

Later in the term, the Court will discuss adding several other First Amendment cases to its docket. Among them are two public school-related disputes.

In Juneau School Board v. Frederick, former Solicitor General Kenneth Starr is asking the Court whether, under the First Amendment, a public school can prohibit students from displaying messages promoting the use of illegal drugs. In advance of the 2002 Olympics in Salt Lake City, the Olympic torch passed through Juneau, Alaska. At a school rally to mark the event, a group of students unfurled a banner that displayed the phrase, “BONG HITS 4 JESUS.� The principal told the students to take down the banner, and she later suspended one student who refused.

Joseph Frederick, the student, sued, but a federal district court judge dismissed the suit, ruling that the banner’s message could be prohibited. But the 9th Circuit reversed, finding that the banner’s massage was not “plainly offensive� or sexual. The appeals court also noted that the banner was not displayed on school property, but rather on a sidewalk facing campus. Starr says the ruling has “profoundly disrupted� the previously accepted view that schools could restrict pro-drug messages.

In Anderson v. Durham School Department, a group of parents seek to restore Maine’s so-called “tuitioning� program, which supporters describe as one of the nation’s oldest school-choice programs. Aimed at educating students in rural towns that are too small to support a public school of their own, the program allows students to attend private schools — including religious ones — at government expense. In 1980, however, the state stopped paying tuition for religious schools, adopting the view that doing so would violate the First Amendment’s establishment clause.

The Maine Supreme Court upheld the policy, finding that under the high court’s decision in Locke v. Davey, states have “some leeway� to choose not to fund religious education even if funding it might not violate the establishment clause.

The Institute for Justice, which represents parents seeking to restore the program, asked the high court to fix Maine’s “25-year-old misunderstanding of the Establishment Clause.�

Gov. Fletcher appoints James I. Howard of Edmonton to Court of Appeals. Howard will serve until January 2007. Where will Dyche end up? The seat on the Workers Comp. Board is given to Bruce Cowden.

Monday, September 25th, 2006

 LawReader Editors note:   Judge Howard has been appointed to the unexpired term of Judge Dyche.  Judge Dyche is the only candidate to file for the new term beginning in Jan. of 2007.  If Judge Dyche elects to stay retired, then the office will be vacated and the Gov. will have to appoint someone again to fill this vacancy.  That might be Judge Howard or could be anyone at the Governor’s discretion after recieving nominations from the Judicial Nominating Commission.  Of Course Judge Dyche could decide to accept his re-election and return to fill the seat he just retired from in June. 

A month ago the rumor was being passed around that Dyche was seeking appointment to a vacancy on the Worker’s Compensation Board, which had a salary equal to that of a Court of Appeals judge, but the Gov. instead promoted from within by naming Bruce Cowden, an Administrative Law Judge for the Worker’s Comp. department. See story about Cowden below.

Mark Nickolas has reported on

“… Fletcher and Dyche are not particularly close, and that relationship has only been adversely impacted by the frank criticism that has been leveled at Fletcher by Dyche’s brother, well-known political commentator and columnist John David Dyche.”
FRANKFORT, Ky. – Governor Ernie Fletcher has appointed James I. Howard, of Edmonton, as Kentucky Court of Appeals Judge for the 3rd Appellate District, Division 1.

Howard replaces R.W. Dyche III, who retired in June.

“James Howard will be a tremendous addition to the Kentucky Court of Appeals,� said Governor Ernie Fletcher. “His experience and his dedication to public service will be a tremendous asset to the position, and I appreciate his willingness to serve in this capacity.�

“I am very honored by this appointment and the trust that Governor Fletcher has placed in me,� said Howard. “I look forward to serving the Commonwealth.�

Howard received his bachelor’s degree from Asbury College in Wilmore and his juris doctorate from Duke University in Durham, N.C. He is a member of the Kentucky Bar Association, and is admitted to practice in the U.S. District Courts, Western District of Kentucky and Eastern District of Kentucky, the U.S. Court of Appeals 6th Circuit, the U.S. Supreme Court and U.S. Tax Court. Howard currently serves as a member of the Wesley Biblical Seminary Board of Trustees and as chairman of the pastoral search committee at Edmonton Baptist Church. He previously served as president of the Horse Cave Lions Club. Howard and his wife, Sharon Bowles Howard, have one daughter.

The appointment is effective immediately.

Governor Ernie Fletcher Appoints Member to the Workers’ Compensation Board

FRANKFORT, Ky. – Governor Ernie Fletcher has appointed Bruce Cowden, of Lexington, to the Workers’ Compensation Board. 

Cowden previously served as an administrative law judge for the Office of Workers’ Claims in Lexington. Cowden has served as an administrative law judge longer than any currently-serving law judge in the Commonwealth, from 1988 to the present.  

Cowden received a bachelor’s degree from Williams College in Williamstown, Mass. and his juris doctorate from the University of Kentucky College of Law. Cowden has also worked as a legal assistant to Magistrate James Cook in the U.S. District Court for the Eastern District of Kentucky, as a staff attorney for the U.S. Court of Appeals for the Sixth Circuit in Cincinnati and as an assistant attorney general in Frankfort.

The Workers’ Compensation Board is responsible for reviewing appeals of decisions rendered by the Administrative Law Judges in the Kentucky Department of Workers Claims.

Should Kentuckys new Self Defense law be held retroactive to a shooting that occurred prior to the adoption of the new law?

Monday, September 25th, 2006

 LawReader Analysis by Senior Editor Stan Billingsley:

Update: By Luke E. Saladin  Ky. Post staff reporter

A Covington man charged with homicide may not use as his defense a new state law that extends broader powers of self-protection to private citizens, a judge ruled on Monday.

Jury selection in the case of Adam Justin Walters, 20, will begin today, a day after Kenton Circuit Judge Greg Bartlett decided that Walters’ lawyer can’t employ a new law, which some call the “castle doctrine,” and others call the “make my day” law.

The statute, passed by the 2006 General Assembly, gives individuals greater leeway to use deadly force if they perceive their lives to be in danger.

Walters is charged with first-degree manslaughter in connection with the stabbing death of 18-year-old Matthew Maltaner on Feb. 9, but Walters’ lawyer says his client was acting in self-defense, which is why he wanted to use the new law.

The problem for Walters is that the law did not take effect until July, five months after the stabbing.

Bartlett said in some cases a defendant who committed a crime may be tried under a new law, but only if that statute mitigates or reduces the punishment for the crime, rather than changing what constitutes a crime.

“The amendment goes to the substance of the defense, rather than the penalty,” Bartlett said.

Sponsored by Sens. Damon Thayer, R-Georgetown, and Dick Roeding, R-Lakeside Park, the law states that a person has the presumption of an imminent fear of death or bodily harm if another person is trying to break into his car or home, and thus may use deadly force to protect himself, the law states. It says the person has no duty to retreat.

Walters’ attorney, Jim Norris of the Kenton-Campbell Public Advocate’s Office, and Assistant Kenton Commonwealth Attorney Jim Redwine, who is prosecuting, said the case would come down to the use of excessive force – or lack thereof.

“We’re moving on,” Norris said Monday.

Police say Walters and Maltaner, of Erlanger, got into an argument while on East 19th Street in Covington, and Walters pulled a knife and stabbed Maltaner.

Walters had just left his job at the White Castle on 12th Street and was riding with a friend to the Taco Bell on Fourth Street when Maltaner started following him.

The two had had words previously over Walters’ supposed comments to Maltaner’s girlfriend, Norris said.

When Walters’ car pulled up in front of his house on 19th Street, Maltaner pulled up alongside and blocked him in. Words led to actions, and Maltaner opened Walters’ car door and started pulling him out, Norris said.

Walters then stabbed Maltaner with a small pocket knife in the heart, police said.

Maltaner died early the next morning.
For reference see below:  THE NEW 2006 STATUTE KRS 503.050,  KRS 503.055 is new for 2006 and did not previously exist. The old version of KRS 505.050.  


    This issue will be decided shortly in a Kenton County Court.  The Commonwealth has argued in its motions before the court that the law should not be applied retroactice, and the defendant should not be able to assert this defense.  The new law holds that a defendant has no duty to withdraw from his attacker prior to using deadly force under certain factual situations.

    Kentucky law would at first blush appear to be confused on this issue, however once one breaks this issue down, the answer may well be settled by reference to Justice v. Commonwealth, 987 SW2d. 306, 12/17/1998. and consideration must be given to In Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) which is cited in the Justice case below.

    There is a great deal of case law that holds a law should not be applied retroactively unless the statute clearly expresses an intent to make it retroactive.  
See: Commonwealth of Kentucky Dept. of Agriculture v. Vinson, No. 1999-SC-0570-DG (Ky. 11/16/2000).

“Kentucky law prohibits the amended version of a statute from being applied retroactively to events which occurred prior to the effective date of the amendment unless the amendment expressly provides for retroactive application.�

But that same case  (Commonwealth of Ky. Dept. of Agriculture v. Vinson) recognizes a distinction that is important:

“A retrospective law, in a legal sense, is one which takes away or impairs vested rights acquired under existing laws, or which creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.

(LawReader Note: this decision mentions situations that reduce the rights of a defendant and do not refer to new rights that favor the defendant.)

Therefore, despite the existence of some contrary authority, remedial statutes, or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, do not normally come within the legal conception of a retrospective law, or the general rule against the retrospective operation of statutes. “

Also Vinson  goes on to say:

“Remedial legislation implies an intention to reform or extend existing rights, and has for its purpose the promotion of justice and the advancement of public welfare and of important and beneficial public objects. The term applies to a statute giving a party a remedy where he had none, or a different one, before.

Another common use of the term “remedial statute” is to distinguish it from a statute conferring a substantive right.

Both definitions of a remedial statute were approved by the Kentucky Court of Appeals in Kentucky Insurance Guarantv Association v. Conco, Inc., Ky.App., 882 S.W.2d 129 (1994). In Conco, a worker was injured in October 1984, while employed by Conco, Inc. The company had workers’ compensation insurance with a carrier later adjudged to be insolvent, with the result being that KIGA assumed coverage. At the time of the insolvency, KIGA’s coverage was limited by statute to $50,000. In 1990, the statute was amended to remove the cap from KIGA’s coverage of workers’ compensation claims. Based on the holding in Peabody, supra, the Court of Appeals held that the amendment removing the cap was remedial legislation which had retroactive application. Conco, supra, at 130.

Further, the Court of Appeals in Conco, affirmed a basic concept of statutory interpretation as set out in KRS 446.080(l), that “all statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the Legislature.” Conco. supra, at 130.â€?

     In the above cited Justice case, issued in 1998, the Ky. Supreme Court once again changed the case law regarding double jeopardy back to the Burge standard.

“Having determined that retrospective application of Burge does not violate due process, we further conclude that retrospective application is proper.

 In Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), the United States Supreme Court held “that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 328, 93 L. Ed. 2d at 661. The Griffith Court gave two important reasons for this holding.

First, it is a settled principle that this Court adjudicates only “cases” and “controversies.” Unlike a legislature, we do not promulgate new rules of constitutional criminal procedure on a broad basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for announcement of a new rule. But after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review. . . .

Second, selective application of new rules violates the principle of treating similarly situated defendants the same. . . . The problem with not applying new rules is “the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary” of a new rule.

Id. at 322-23, 93 L. Ed. 2d at 658-59 (emphasis in original and internal citations omitted). Both of these reasons favor retrospective application of Burge.

First, the proposition that the integrity of judicial review favors retrospective application of Burge is inherent in the argument itself. Next, it is just as inequitable to single out a particular defendant from all similarly situated defendants for application of a new rule that works to that defendant’s detriment, as it is to single out a particular defendant for application of a rule that works to that defendant’s benefit.

Finally, the traditional reason for not giving retrospective application to a new rule is not a concern in this case. As explained by the Griffith Court, “reliance by law enforcement authorities on the old standards and effect on the administration of Justice of a retroactive application of the new rule” virtually compelled a finding that the new rule was not retroactive. 479 U.S. at 324-25, 93 L. Ed. 2d at 659. Double jeopardy concerns come into play only after investigation, interrogation, and arrest. They have little or no bearing on the day-to-day activities of law enforcement personnel. Further, the administration of Justice actually benefits from retrospective application of Burge. One of the main reasons we returned to the “same elements” test was because “application of the ‘same conduct’ analysis beyond Blockburger has created confusion and is ‘unstable in application.’” Burge, 947 S.W.2d at 881, quoting Dixon, 509 U.S. at 709, 125 L. Ed. 2d at 576.â€?

    The courts have explained that if a new statute increases the penalty after the crime has been committed, or made an act a crime which at the time of its commission was not a crime, than it is substantive law and should not be applied retroactively.  This would be ex post facto legislation.  However, the Justice case points out that a remedial statute that deals with procedure and rules or which recognizes new rights in favor of the defendant may be applied retroactively.

    The new self-defense statute is said by some authorities to only codify and repeat other theories of self-defense and in essence they claim it is not new law at all.  If this is correct, than the rule against applying the new law retroactively would clearly not apply to prevent the retroactive application of this new “defense� to a criminal act.


503.050 Use of physical force in self-protection — Admissibility of evidence of prior
acts of domestic violence and abuse.
(1) The use of physical force by a defendant upon another person is justifiable when the
defendant believes that such force is necessary to protect himself against the use or
imminent use of unlawful physical force by the other person.

NO CHANGE FROM Old Section (1): (1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.

CHANGE IN SECTION (2) Old Section (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat.

(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.

N0 CHANGE IN SECTION (3) (3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.

(4) A person does not have a duty to retreat prior to the use of deadly physical force.

Effective: July 12, 2006
History: Amended 2006 Ky. Acts ch. 192, sec. 3, effective July 12, 2006. — Amended 1992 Ky. Acts ch. 173, sec. 2, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 30, effective January 1, 1975.

The Pre-2006 Statute:
Use of physical force in self-protection — Admissibility of evidence of prior acts of domestic violence and abuse.
(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.
(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat.
(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.
Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 173, sec. 2, effective July 14, 1992. — Created
1974 Ky. Acts ch. 406, sec. 30, effective January 1, 1975.
The following statute KRS 503.055 is new for 2006 and did not previously exist:
503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle –Exceptions.

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was
attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) of this section does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
(b) The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used;
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a peace officer, as defined in KRS 446.010, who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties, and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a peace officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm
to himself or herself or another or to prevent the commission of a felony involving the use of force.
(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Effective: July 12, 2006
History: Created 2006 Ky. Acts ch. 192, sec. 2, effective July 12, 2006.
         A review of whether or not the rights granted by the new Ky. self defense law actually created new substantive law may be analyzed by reviewing the then pre-existing right of self-defense:

KY     Estep v. Commonwealth, 64 S.W.3d 805 (Ky. 01/17/2002)

 [26]    If at the time the defendant killed George Jackson (if he did so), he believed that George Jackson was about to use physical force upon him, he was privileged to use such physical force against George Jackson as he believed to be necessary in order to protect himself against it, but including the right to use deadly physical force in so doing only if he believed it to be necessary in order to protect himself from death or serious physical injury at the hands of George Jackson, subject to this qualification:
[27]    If you believe from the evidence beyond a reasonable doubt that the Defendant was mistaken in his belief that it was necessary to use physical force against George Jackson in self-protection, or in his belief in the degree of force necessary to protect himself,
[28]     AND
[29]    A. That when he killed George Jackson (if he did so), he failed to perceive a substantial and unjustifiable risk that he was mistaken in that belief, and that his failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would have observed in the same situation, then you will find him guilty of Reckless Homicide under Instruction No. 1.
                          I. SELF-PROTECTION INSTRUCTION.

KY     Commonwealth v. Higgs, 59 S.W.3d 886 (Ky. 11/21/2001)
[15]    The Court of Appeals held that the jury was improperly instructed to apply an objective standard in determining Appellee’s right to use deadly physical force in self-protection against kidnapping. KRS 503.050(2). We agree, but find the error to have been harmless because it did not affect the ultimate verdict of the jury. RCr 9.24; Skaaas v. Commonwealth, KY., 803 S.W.2d 573, 575 (1990) cert. denied, 502 U.S. 844 (1991).
[16]    Instruction No. 1 was the instruction on murder, and Instruction No. 2 was the instruction on manslaughter in the first degree. The jury rendered specific verdicts finding Appellee not guilty of those offenses. Under Instruction No. 3, the jury could have found Appellee guilty of manslaughter in the second degree if he killed Endicott and “[t]hat in so doing, he was acting wantonly.” Under Instruction No. 4, Appellee could have been found guilty of reckless homicide if he killed Endicott and “[tlhat in so doing, he was acting recklessly." Instruction No. 5, the instruction on self-protection, provided in words and figures as follows:
[17]    Even though the defendant might otherwise be guilty of Murder under Instruction No. 1, or Manslaughter in the First Degree under Instruction No. 2, if at the time the defendant killed Mr. Endicott (if he did so), he believed that Mr. Endicott was about to use unlawful physical force upon him, he was privileged to use such physical force against Mr. Endicott as he believed to be necessary in order to protect himself against it, but including the right to use deadly physical force in so doing only if he believed it to be necessary in order to protect himself from death, serious physical injury or being kidnapped. But. if the defendant was being unlawfully restrained under circumstances which constituted either Unlawful imprisonment in the First Degree or Unlawful Imprisonment in the Second Degree then the defendant was not privileged to use deadly physical force.
[18]    The above instruction is subject to the following qualification:
[19]    Regardless of what the defendant then believed, if you believe from the evidence beyond a reasonable doubt the following:
[20]    (a) That it was not in fact necessary for him to use any physical force against Mr. Endicott in order to protect himself, or, if it was, he used more than was actually necessary:
[21]     AND
[22]    (b) That his belief to the contrary and the action he took against Mr. Endicott in reliance upon that belief amounted to:
[23]    (1) Reckless conduct, then he was not so privileged, and you will find him guilty of Reckless Homicide under Instruction No. 4;
[24]     OR
[25]    (2) Wanton conduct, then he was not so privileged and you will find him guilty of Manslaughter in the Second Degree under Instruction No. 3. (Emphasis added.)
[26]    Instruction No. 6, the “definitions” instruction, included the statutory definitions of wantonly, KRS 501.020(3), recklessly, KRS 501.020(4), and restrain, KRS 509.010(2), and defined kidnapping and unlawful imprisonment in the first and second degrees in accordance with the statutory elements of those offenses. KRS 509.040; KRS 509.020; KRS 509.030.
[27]    This case was tried prior to our decision in Elliott v. Commonwealth, KY., 976 S.W.2d 416 (1998) and neither Instruction No. 3, manslaughter in the second degree, nor Instruction No. 4, reckless homicide, included the absence of the right to act in self-protection as an element of the offense. Shannon v. Commonwealth, Ky., 767 S.W.2d 548, 551-53 (1988) (“Shannon. Part II”), overruled, Elliott. supra, at 422. Appellee did not preserve this issue for review; nor did he object to the fact that paragraph (b) of the mistaken belief qualification in the self-protection instruction incorrectly predicated his guilt of manslaughter in the second degree or reckless homicide partially upon the existence of a wanton or reckless & committed in self-protection, whereas KRS 503.120(l) applies only to a wanton or reckless belief in the need to so act. Shannon, supra, at 548-51 (“Shannon, Part I”); Elliott. supra, at 420-21. Appellee’s only claim of error with respect to Instruction No. 5 is that, although the instruction correctly predicated his right to use deadly physical force on his belief that such was necessary to protect himself from kidnapping, the instruction incorrectly provided that he could not use deadly physical force in self-protection if, in fact, he was not being kidnapped, but only unlawfully imprisoned. In other words, if the jury believed Appellee was not actually being (or about to be) kidnapped, as that offense is defined in KRS 509.040, but was only being (or about to be) unlawfully imprisoned, as defined in KRS 509.020 and KRS 509.030, then he was not authorized to use deadly physical force in self-protection regardless of what he, himself, believed.
[28]    The “focus of the penal code is on the defendant’s actual subjective belief in the need for self-protection and not on the objective reasonableness of that belief.” Commonwealth v. Hager, KY., 41 S.W.3d 828, 836 (2001) (quoting Elliott, supra, at 419). Even if a defendant is mistaken in his subjective belief, he is still entitled to the defense of self-protection, subject only to the wanton or reckless belief qualification described in KRS 503.120(l). The error here is similar to that which occurred in Hager when the jury was instructed to determine whether the defendant was “mistaken in his need” for self-protection instead of whether he was “mistaken in his belief” in the need for self-protection. Hager. supra, at 831.




Ky. Legislature defeated plan to fund underfunded state retirement programs with tax on manufacture of cigarettes in Ky.

Sunday, September 24th, 2006

By Bob Rowland
Where can Kentucky find a viable source of revenue to fulfill its commitment to retired employee pension and health benefits? How about getting the money from taxes collected in Kentucky, but actually diverted to other states through a bad deal with big tobacco companies?

Does this sound complex, too good to be true, or perhaps illegal?  That’s exactly what high paid lobbyists told legislators in order to protect the interests of big tobacco companies, and in the process denied retirees the only viable source of money that would have enabled lawmakers to effectively deal with unfunded pension benefits in 2006.
Over $150 million collected every year on tobacco sales in Kentucky is diverted to wealthy states like New York, Massachusetts and California under the terms of a legal settlement with big tobacco companies.  A proposal in the 2006 legislature would have replaced payments to the settlement with a direct state tax on tobacco manufacturers – all of which would stay right here in Kentucky.  Tobacco companies argued the tax was illegal under the terms of the settlement and pointed to Minnesota where a court had placed a restraining order on that state’s ability to levy a tax on tobacco manufacturers.  Big tobacco companies vowed to keep such taxes tied up in court forever!
Forever lasted only until May 16.  That’s the day the Minnesota Supreme Court ruled the tax was completely legal, and did not violate the terms of the legal settlement or the contract clause of the U.S. Constitution.  In Kentucky, lawyers for Governor Fletcher and Attorney General Stumbo agree on at least one thing – the legal settlement with big tobacco companies does not limit the sovereign power of the state to levy taxes on tobacco manufacturers.
A recent court ruling in the Franklin Circuit court in Kentucky also indicates that tobacco companies required to pay a state tax could deduct such taxes from their payments to the legal settlement. But big tobacco companies still oppose a direct tax on manufacturers because it would end the loopholes that allow them to pay considerably less to the settlement than is required of small independent tobacco companies now operating in Kentucky.

A direct tax on tobacco manufacturers to replace participation in the legal settlement is essentially a tax on the big, wealthy states that have been taking advantage of smaller states since the settlement began in 2000, and on the big tobacco companies that avoid paying their fair share through loopholes in the legal settlement.

Governor Fletcher advocated passage of this tax on tobacco manufacturers, but more important, he proposed using a significant portion of the proceeds to help fund public retirement systems.  Retired public employees should actively support this legislation in future sessions of the General Assembly and lay claim to the extra revenue it produces to supplement the funds already appropriated to the retirement systems from the General Fund. This proposal will be opposed by big tobacco companies, but it can pass with the active support of retirees. 

Failure to effectively deal with unfunded pension benefits places retirees on a collision course with financial disaster. Replacing participation in the legal settlement with a direct tax on tobacco companies is one of the few, and perhaps only, viable sources of funds that can have a meaningful impact on the pressing needs of public retirement systems in Kentucky.  Without this tax on tobacco companies, the unfunded liability crisis will continue to grow.
For more information about this proposal, please log on to

Bob Rowland is a member of the KPR.  He currently works as a consultant in Frankfort and is a registered lobbyist for the Council of Independent Tobacco Manufacturers of America.  He can be contacted by email at

Should the courts honor reporters shield laws

Sunday, September 24th, 2006

Erwin Chemerinsky

The outrage of putting two reporters in jail for 18 months for keeping their sources confidential should finally provoke Congress into adopting a law protecting reporters who keep their sources confidential.

On Thursday, a federal judge in San Francisco sentenced reporters Lance Williams and Mark Fainaru-Wade to jail for refusing to disclose who leaked to them secret grand jury testimony concerning the investigation of steroid abuse and the Bay Area Laboratory Cooperative (BALCO).

Putting these reporters in jail serves no purpose other than to chill investigative reporting that informs the public about important social and political issues. Reporters often need to rely on confidential sources.
Perhaps most famously, the Watergate scandal never would have been uncovered except for Washington Post reporters Bob Woodward and Carl Bernstein promising confidentiality to “Deep Throat” who repeatedly provided crucial information.

Likewise, Williams and Fainaru-Wade needed a confidential source to provide information for a series of articles and a book that revealed the extent of steroid abuse in baseball and other sports. Their revelations helped to spur baseball to adopt a long-needed drug-testing policy.

Unfortunately, in 1973, the Supreme Court, in a 5-4 decision, held that the First Amendment does not protect the right of reporters to keep their sources confidential. Justice Byron White’s opinion for the majority rejected the claim that reporters need confidentiality in order to get and tell important stories.

The response was that states across the country adopted statutes protecting the secrecy of reporters’ sources in state court proceedings. Such statutes can provide more protection of rights than the Constitution. Thirty-one states and the District of Columbia adopted “shield laws” that protect reporters from being punished for not revealing their confidential sources. However, there is no such federal shield law, which means that in federal courts across the country reporters have no protection from being forced to disclose their confidential sources or being sentenced to jail.

For many years, this was not a serious problem, as federal prosecutors refrained from trying to send reporters to jail and as lower federal court judges interpreted the 1973 decision to allow some protection for reporters. In the 5-4 decision, Justice Lewis Powell, who voted with the majority, wrote a separate concurring opinion saying that courts should balance the courts’ need for the information against the costs to the public’s right to know.

Many lower courts used this balancing test to protect reporters. But in recent years, federal prosecutors have sought jail time for reporters who keep their sources secret. Also, federal judges have rejected a balancing approach and have flatly rejected any protection for reporters seeking to keep their sources confidential.

The result has been reporters being put in jail for refusing to disclose their confidential sources.

Last year, for example, Judith Miller, then a New York Times reporter, spent several months in jail for refusing to reveal her confidential sources in the investigation of who disclosed that Valerie Plame was a secret CIA operative. The federal courts for the District of Columbia rejected any First Amendment protection for reporters in the investigation.

Everyone is the loser when reporters are put in jail for not disclosing confidential sources. Other reporters will be more reluctant to promise confidentiality to sources. Important stories won’t get written. Whistleblowers exposing corruption in the government and private industry will be less likely to come forward without assurances of confidentiality. Law-enforcement agencies will be the losers, too, as often reporters can expose criminal activity that the agencies don’t know about.

Hopefully, the federal judge, Jeffrey White, who sentenced Williams and Fainaru-Wade to jail, will reconsider their punishment. Nothing in the law requires that he put these reporters in jail. Failing that, the hope must be that the federal court of appeals will reverse Judge White and follow the approach of Justice Powell by concluding that the public’s right to know outweighs the need to find out who leaked the grand jury transcripts.

But the real solution must come from Congress. A bipartisan bill is now before the Senate Judiciary Committee to provide reporters the ability to keep their sources confidential. Such shield laws have worked well in state courts for decades. It is long overdue for Congress to provide this protection for reporters in federal courts.

The reality of Williams and Fainaru-White being behind bars for doing their job and informing the public should finally be the impetus for this law to protect all of our right to know.

Erwin Chemerinsky is the Alston & Bird Professor of Law at Duke University.

Merck Insurance carriers jump ship over Vioxx disaster

Friday, September 22nd, 2006

Submitted by Evelyn Pringle on September 22, 2006 – 2:37am. Business | Legal Issues
According to Merck’s August 7, 2006, SEC filing, “At this time, the Company believes that its insurance coverage with respect to the Vioxx Lawsuits will not be adequate to cover its defense costs and any losses.”

In addition, Merck says it has not established any reserves for potential liability relating to the Vioxx lawsuits or investigations, including for those cases in which a verdict has been entered against the company, and are now in post-verdict proceedings or on appeal.

According to the filing, Merck has product liability insurance for claims brought in the Vioxx Product Liability Lawsuits with upper limits of about $630 million after deductibles and co-insurance. This insurance provides coverage for legal defense costs and potential damage amounts that have been or will be incurred in connection with the Vioxx Product Liability Lawsuits.
The company says it has Directors and Officers insurance coverage applicable to the Vioxx Securities Lawsuits and Vioxx Derivative Lawsuits with stated upper limits of about $190 million and fiduciary and other insurance for the Vioxx ERISA Lawsuits with stated upper limits of approximately $275 million.

However, the filing states, the amounts actually recovered under the policies may be less than the amounts specified. It seem there are now disputes with certain insurers about the availability of some or all of this coverage and there are likely to be more disputes, according to Merck.

In fact, the company’s upper level excess insurers, which provide excess insurance potentially applicable to all Vioxx lawsuits, have commenced an arbitration seeking to cancel those policies, to void all obligations under those policies, and to raise other coverage issues with respect to Vioxx lawsuits.

But not to worry. “Merck intends to contest vigorously the insurers’ claims and will attempt to enforce its rights under applicable insurance policies,” the filings says.

For its part, as of December 31, 2004, Merck had established a reserve of $675 million solely for its future legal defense costs related to Vioxx. During 2005, according to the SEC filing, the company spent $285 million in legal defense costs related to Vioxx (i) Product Liability Lawsuits, (ii) Shareholder Lawsuits, (iii) Foreign Lawsuits, and (iv) Investigations.

In the fourth quarter of 2005, Merck recorded a charge of $295 million to increase the reserve for Vioxx legal defense costs to $685 million at December 31, 2005.

“Unfavorable outcomes in the Vioxx Litigation,” the SEC filing concludes, “could have a material adverse effect on the Company’s financial position, liquidity and results of operations.”

Being insurers are fighting against payment of damages before even one case is settled, it does not take a financial genius to figure out that Merck is in for big trouble.

According to the SEC filing, as of June 30, 2006, Merck has been served or is aware that it has been named as a defendant in approximately 14,200 lawsuits, which include approximately 27,100 plaintiff groups, alleging personal injuries resulting from the use of Vioxx .

Of these cases, Merck says, approximately 5,700 lawsuits representing approximately 16,100 plaintiff groups are or are slated to be in the federal Multidistrict Litigation (MDL), and approximately 7,100 lawsuit representing approximately 7,100 plaintiff groups are included in a coordinated proceeding in New Jersey Superior Court before Judge Carol Higbee.

These lawsuits include allegations related to cardiovascular events, thrombotic events, gastrointestinal bleeding or kidney damage.

Merck has also been named as a defendant in close to 200 putative class actions alleging personal injuries or seeking (1) medical monitoring due to class members’ use of Vioxx , (2) disgorgement of profits under unjust enrichment theories, and (3) remedies under state consumer fraud and fair business practice statutes, including recovery for the cost of Vioxx purchased by individuals and third-party payors such as union health plans.

The lawsuits filed in the state courts of New Jersey, California, Texas, and Pennsylvania, have all been transferred to a single judge in each state for coordinated proceedings.

On February 16, 2005, the Judicial Panel on Multidistrict Litigation transferred all Vioxx Product Liability Lawsuits in federal courts nationwide into one MDL for coordinated pre-trial proceedings in the US District Court for the Eastern District of Louisiana before Judge Eldon Fallon.

Judge Fallon has informed the litigants that he intends to try a series of cases through 2006, in the following Vioxx categories: (1) heart attack with short term use; (2) heart attack with long term use; (3) stroke; and (4) cardiovascular injury after April 2002 when the labeling on Vioxx was changed to include the results of the VIGOR trial.

Legal experts say Merck took a major hit on July 29, 2005, when a New Jersey state court certified a nationwide class of third-party payors, such as unions and health insurance plans, who paid for Vioxx used by their plan members. The named plaintiff seeks recovery of purchase costs, plus penalties, based on allegations that the class members paid more for Vioxx than they would have had they known the drug’s alleged risks.

Merck appealed the ruling and on March 31, 2006, the New Jersey Superior Court, Appellate Division, affirmed the class certification. The New Jersey Supreme Court recently decided to exercise its discretion to hear the appeal of the appellate court decision.

The trial in this case is currently scheduled to begin in March 2007, and according to Merck, it is not known whether the Supreme Court’s decision will affect the trial date.

Merck has also been named as a defendant in separate lawsuits brought by the Attorneys General of Alaska, Louisiana, Mississippi, Montana, Texas, and Utah, that claim Merck misrepresented the safety of Vioxx and seek reimbursement for (1) the cost of Vioxx purchased or reimbursed by the state; (2) all sums paid by the state for treatment of persons injured by Vioxx; (3) damages under various common law theories; and (4) remedies under various state statutory theories, including state consumer fraud, fair business practices, or Medicaid fraud, including civil penalties.

Even if the insurance carries end up covering the Vioxx cases, critics say how far is one or two billion dollars worth of insurance tops, going to go when there are states like Texas seeking $168 million in damages and additional civil penalties. Texas Attorney General, Greg Abbott, says he can prove total damages in excess of $250 million including treble reimbursement of $56 million, or $168 million, for five years of Vioxx prescriptions purchased in Texas.

In addition to the product liability lawsuits, Merck and various current and former officers and directors are named defendants in various putative class actions and individual lawsuits filed under the federal securities laws, all of which have been transferred to the US District Court for the District of New Jersey before Judge Stanley Chesler for inclusion in a nationwide shareholder MDL.

The plaintiffs request certification of a class of purchasers of Merck stock between May 21,1999 and October 29, 2004, and allege that the defendants made false and misleading statements regarding Vioxx in violation of the Securities Exchange Act of 1934, and seek unspecified compensatory damages and the costs of lawsuit, including attorneys’ fees.

The complaint also asserts a claim against certain defendants relating to their sale of Merck stock and includes allegations that certain defendants made incomplete and misleading statements in a registration statement and certain prospectuses filed in connection with the Merck Stock Investment Plan, a dividend reinvestment plan.

The Merck defendants have filed a motion to dismiss the complaint which was still pending at the time of the SEC filing on August 7, 2006.

On August 15, 2005, a lawsuit was filed in Oregon state court under Oregon securities law, by the State of Oregon on behalf of the Oregon Public Employee Retirement Fund against Merck and certain current and former officers and directors alleging damages in connection with its purchases of Merck common stock at artificially inflated prices due to Merck’s violations of law related to disclosures about Vioxx .

On July 19, 2006, the Court denied a motion by Merck to dismiss Oregon’s complaint and according to Merck’s SEC filing, the current and former officers and directors have entered into a tolling agreement in exchange for plaintiffs’ dismissal, without prejudice, of the claims against them.

Various federal shareholder derivative actions have been transferred to the Shareholder MDL and consolidated for all purposes by Judge Chesler. The consolidated complaint arises out of the same factual allegations that are made in the other Vioxx securities lawsuits.

The derivative suits assert claims against certain members of the Board past and present, and certain executive officers, for breach of fiduciary duty, waste of corporate assets, unjust enrichment, abuse of control and gross mismanagement.

On May 5, 2006, Judge Chesler granted a motion by defendants to dismiss the complaint and denied plaintiffs’ request for leave to amend their complaint, and plaintiffs have appealed to the US Court of Appeals for the Third Circuit.

On October 29, 2004, according to the SEC filing, two shareholders made a demand on the Board to take legal action against former Chairman, President and CEO, Raymond Gilmartin, and other individuals for causing damage to the company with respect to the improper marketing of Vioxx .

In response to the shareholder’s demand letter, the Board determined at its November 23, 2004 meeting that the Board would take the request under consideration and it remains under consideration.

The Board, the SEC filing states, has recently received another shareholder letter demanding that the Board take legal action against the Board and Merck management for causing damage to the company relating to the company’s improper marketing of Vioxx .

In addition, various federal putative class actions filed against Merck and certain current and former officers and directors have been transferred to the Shareholder MDL and consolidated for all purposes. The consolidated complaint asserts claims on behalf of certain current and former employees who are participants in Merck’s retirement plans for breach of fiduciary duty under the Employee Retirement Income Security Act.

The allegations are similar to those contained in the other securities lawsuits. On October 7, 2005, defendants moved to dismiss the complaint, and on July 11, 2006, Judge Chesler granted in part and denied in part the motion to dismiss.

The court dismissed the claim of breach of fiduciary duty based on continued investment in Merck stock as to all defendants except the 5 individuals who were members of Merck’s Management Pension Investment Committee during the purported class period.

The court dismissed the claim for breach of fiduciary duty based on failure to provide complete or accurate information to participants to the extent it related to specific communications cited in the complaint, but declined to dismiss the claim before discovery to the extent plaintiffs allege that adverse information was withheld from participants.

The court also dismissed the claim for failure to monitor as to all defendants except the members of the Compensation and Benefits Committee of Merck’s Board of Directors who had supervisory responsibility for the MPIC.

Finally, the court declined to dismiss the claim for co-fiduciary liability, absent factual development, but dismissed as duplicative the claim for knowing participation in breach of fiduciary duty.

As far as a slow down in the continuous stream of lawsuits, Merck is no doubt hoping to see a light at the end of the tunnel soon because Vioxx was pulled off the market on September 30, 2004, and some states have a 2-year statute of limitations requiring that lawsuits must be filed within two years after the plaintiffs learned or could have learned of their potential cause of action.

As a result, experts say September 30, 2006 is a deadline for filing Vioxx cases in many states. However, they also note that the laws governing statutes of limitations are complex, can vary from state to state, and might be affected by pending class actions. For instance, some states have 3-year statutes of limitations, and some even longer.

Legal analysts predict there will be arguments raised about the proper application of these statutes, but say ultimately the decisions will be up to the federal and state judges presiding over the individual cases.

But then Merck attorneys know that September definitely will not be the end date for filing Vioxx lawsuits because according to Merck’s SEC filing, as of June 30, 2006, the company has entered into agreements with about 5,800 plaintiffs to toll the statute of limitations, so the September 30, 2006 cut-off date would not apply in those cases.

The tolling agreement with the MDL Plaintiffs’ Steering Committee establishes a procedure to halt the running of the statute of limitations as to certain categories of claims arising from the use of Vioxx by non-New Jersey citizens.

The agreement applies to individuals who have not yet filed lawsuits and only to those claimants alleging injuries resulting from a thrombotic cardiovascular event that results in a myocardial infarction or ischemic stroke. The agreement requires any tolled claims to be filed in federal court.

And although its never mentioned much, Merck has been named as a defendant in litigation relating to Vioxx all over the globe including several countries in Europe as well as Canada, Australia, Brazil, Turkey, and Israel.

In addition, based on media reports and other sources, Merck says, it anticipates that additional Vioxx Product Liability Lawsuits, Vioxx Shareholder Lawsuits and Vioxx Foreign Lawsuits will be filed against it and certain current and former officers and directors in the future.

And that may be true, because critics says there should be another shareholder lawsuit filed against Merck Management this month for flushing another $21 million in profits down the toilet by paying a committee to publish a bogus 1,700 page report to supposedly absolve Merck Management of any wrongdoing.

But in any event, Merck’s legal woes are not limited to civil court proceedings. In November 2004, Merck was advised by the SEC that it was commencing an informal inquiry concerning Vioxx, and on January 28, 2005, Merck announced that it received notice that the SEC issued a formal notice of investigation.

Also, according to the company’s SEC filing, Merck has received subpoenas from the US Department of Justice requesting information related to the research, marketing and selling activities of Vioxx in a federal health care investigation under criminal statutes.

Merck also says it has received a number of Civil Investigative Demands from a group of Attorneys General from 31 states and the District of Columbia who are investigating whether Merck violated state consumer protection laws when marketing Vioxx.

And finally, to end on a happy note, the SEC filing says, investigations are being conducted by local authorities in certain cities in Europe in order to determine whether any criminal charges should be filed related to Vioxx.

“The Company,” Merck states, “cannot predict the outcome of these inquiries; however, they could result in potential civil and/or criminal dispositions.”

More information for injured parties can be found at Lawyers and

Evelyn Pringle

(Evelyn Pringle is a columnist for OpEd News and an investigative journalist focused on exposing corruption in government and corporate America)

Friday, September 22nd, 2006


The Myth Of The Frivolous Lawsuit

Thursday, September 21st, 2006

ePluribus Media – USA by Justinian
One of the catch phrases of tort reformers is “frivolous lawsuits” – a lawsuit that has no legal basis, or is so petty that the suit isn’t justified.  Often, tort reformers cite high profile cases, such as the McDonalds coffee case[1] to try and show that the court system is “broken” and that “runaway juries” routinely award ridiculously large verdicts in frivolous cases.
Tort reformers argue that these “frivolous lawsuits” are “clogging the courts” and cost honest, taxpaying citizens billions of dollars every year.  They further claim that the only way to stop “frivolous lawsuits” is to pass legislation that will make it more difficult to file a “frivolous lawsuit.”

What tort reformers don’t tell you is that the legal system already has three safety mechanisms in place to prevent, dismiss, and correct “frivolous lawsuits” and “runaway jury verdicts.”  The first mechanism, the contingent-fee agreement, prevents frivolous lawsuits from being filed in the first place.

Commentary :: ::

The Contingent-Fee Agreement:
 Have you ever seen or heard an ad for an attorney who promises something like, “No cost to you unless we collect!”?  That’s a contingent-fee agreement; whether the attorney gets paid is contingent upon the attorney collecting money for you.  Nearly every attorney that brings a lawsuit for a personal injury case does so under a contingent-fee agreement.  How does a contingent-fee agreement work?

Let’s say you’ve had an auto accident and decide to hire an attorney to protect your rights.  If you shop around, you’ll find that contingent-fee agreements vary from attorney to attorney, but generally range from 25% to 50% of the total settlement or judgment you receive.  For simplicity, we’ll say you hire an attorney on a 40% contingent-fee agreement.  If you were to receive $10,000.00, the attorney would get $4,000.00 in that case as his or her fee, in addition to being reimbursed for any expenses he or she incurred in building your case.  These expenses include obvious things like court filing fees and postage, but there are some hidden expenses in many cases that the general public doesn’t know about: expert witness fees.

What is an expert witness fee?  Well, in most complicated cases – and virtually all medical malpractice cases -  the plaintiff needs to hire expert witnesses to help prove his or her case.  In many states, you’re not even allowed to file a medical malpractice suit without first having a report from a physician that says, in essence, the doctor or hospital you wish to sue committed malpractice.

While your attorney is willing to work on a contingent-fee basis, which means it may be months or years before he or she is paid, expert witnesses want to be paid up front, and it’s the attorney who has to pay them out of his or her pocket.  As you might surmise, expert witnesses aren’t cheap: they’re highly qualified professionals who generally have high hourly fees. 

What kind of expert witnesses might be needed in a given case?  Let’s take some real-life examples of experts and what they charge:
Professional Engineers: If you’re suing a manufacturer because you got hurt by a product that you think was poorly designed, you’ll need at least one professional engineer.  The going rate for engineers is around $225.00 per hour, and many charge an additional $100 or more per hour for time spent in depositions and in court.  So, if that engineer spent ten hours reviewing a design, and five hours in court, that would cost your attorney almost $4,000.00.  Again, that’s money that your attorney pays out of his or her pocket, and only gets back if you win your case.  In a complicated design case, it’s not uncommon for several engineers to spend fifty or more hours evaluating the product, at a cost to your attorney of over $10,000.00
Doctors: If you have a medical malpractice case, or any case where the extent of your injuries is called into question, you’ll need to hire a doctor as an expert witness.  Doctors, as you might guess, are expensive.  Plan on having your attorney spend around $250.00 per hour, possibly twice that much for a well-regarded specialist.  In a complicated medical case, you may need three or more doctors, including expensive specialists like anesthesiologists and neurologists, with a cost of $20,000.00 or more to your attorney.

Nurses: You’ll probably need a nurse in any case where you need a doctor.  While they’re not as expensive as doctors, they’ll still be around $75.00 an hour.  Just like doctors, they’ll also probably have to spend ten to twenty hours on a case – another couple of thousand dollars that your attorney has to gamble on your case.

Surprisingly, finding expert witnesses isn’t easy.  Often, a lawyer will have to “shop around” for experts.  That means your lawyer will spend time finding experts with the right qualifications for your case.  Then, he or she would gather all the pertinent materials and send them to an expert for review.  Sometimes, the expert will review the records and say that they’re not interested in the case.  Or perhaps they’ll review the records and not find anything helpful to your case.  Either way, the expert will still have to be paid, and it’s your lawyer who will have to pay them.  It’s not uncommon to go through two or three experts, and several thousand dollars, before the “right” expert is found.  Of course, it’s also not uncommon for a lawyer to think his or her client has a great case, only to be told by several experts that the case has little or no merit.  This is especially true in medical malpractice cases.  In such an instance, that lawyer will have wasted thousands of dollars, but the client will owe nothing to the attorney – thanks to the contingent-fee agreement.

Now, if you were a lawyer with a contingent-fee agreement, would you be willing to spend thousands of your own dollars and hundreds of hours on a case you’re not confident you can win?  If your answer is “no” to that question, then you’ve just seen how contingent-fee agreements prevent frivolous lawsuits from being filed.

While contingent-fee agreements prevent frivolous lawsuits, they also do something even more important: They provide access to the courts to everyone.  Most lawyers charge $100 to $300 an hour, with “superstar” lawyers charging as much as $750.00 per hour.  At those rates, a complicated injury trial could cost an injured person $30,000 – which few people can afford.  If contingent-fee agreements were abolished, two things would happen: Only the rich would be able to file lawsuits, and attorneys would be far more willing to file a lawsuit that doesn’t have merit; when you’re paid by the hour, it doesn’t matter if you win or lose.

No case is “easy”, and in general, the more complicated the case, the harder it is to win.  Contingent-fee agreements attract lawyers to the complicated cases.  Contingent-fee agreements drive lawyers to take those cases to trial, instead of settling for a fraction of what the case is really worth.  Contingent-fee agreements allow the poorest of the poor to hold corporate juggernauts accountable for their actions in a court of law. 

Is it any surprise then that some special interest groups are attacking the contingent-fee agreement?  They argue that it’s not fair for attorneys to take such a “large percentage” of any recovery of their clients.  Their arguments have worked: Some states have put limits on the percentage an attorney can take  Do you think that those special interest groups are truly interested in ensuring injured people aren’t taken advantage of by unscrupulous attorneys? 

Damage caps and attorney-fee caps work together to make the complicated cases less enticing for lawyers, and the consequence is that those who traditionally receive large jury verdicts – the catastrophically injured, or the families of those who are killed – won’t be able to find attorneys to bring their case to court.  The corporate entities that support tort reform won’t be held accountable when they act irresponsibly or unethically, and will instead enter into confidential settlement agreements with those who are harmed by their products.

The irony is that as those corporate entities take away the individual’s right to a jury trial, they’re doing it under the guise of protecting the public from “greedy lawyers.”  It’s also important to note that capping contingent-fees will do nothing to reduce so-called “frivolous lawsuits.”  That’s because contingent-fee caps only discourage lawyers from filing complicated lawsuits on behalf of the severely injured.

So, what happens if an inept lawyer decides to file a frivolous lawsuit?  The second safety mechanism, the Summary Judgment, would be used to dismiss the suit.

The Summary Judgment:

Tort reformers say that the courts are overwhelmed with “frivolous lawsuits” – lawsuits that have no legal basis, or are so petty as to not be worth the time of the court system.  They say that to protect the justice system, we need to make it harder for individuals to file lawsuits.   

But what if instead of putting barriers up that could prevent legitimate lawsuits from being filed, there was a tool that could quickly and easily dismiss frivolous lawsuits?  What if this tool not only dismissed frivolous lawsuits, but could also be used to force the plaintiffs in frivolous lawsuits to pay the attorney fees of the defendant?  Wouldn’t such a tool be a better solution than passing laws that would hurt individuals with legitimate lawsuits?

This tool not only exists, but has been in use in America since 1937; it’s called the Summary Judgment.

The purpose of the summary judgment is to determine whether there is a genuine need for trial.   When a party files a motion for summary judgment, they’re telling the court that there is no need for trial because the facts and law applicable to the case would prevent the other side from winning. 

 We’ll use a fictitious car wreck as an example of how a summary judgment would dispose of a frivolous lawsuit:
Mr. Smith runs a red light and slams into Mr. Jones.  Mr. Smith claims the light was green, but two witnesses say the light was red.  Mr. Smith is found to have a blood alcohol level that is nearly twice the legal limit.  Mr. Smith doesn’t dispute the fact that he was drunk, but still decides to sue Mr. Jones for the damage to his car and for his medical bills.
Mr. Jones hires a lawyer.  Mr. Jones’ lawyer spends a few hours drafting a motion for summary judgment.  At the end of the motion, Mr. Jones’ lawyer requests he be awarded attorney’s fees from Mr. Smith because the lawsuit is frivolous.

The lawyer for Mr. Jones files his motion for summary judgment, and includes evidence that Mr. Smith was legally intoxicated, and under the laws of that state, therefore legally responsible for the accident, even if he didn’t run a red light.  
In such a case, the judge would most likely grant the summary judgment, and Mr. Smith’s lawsuit would be dismissed.  The judge could also decide to order Mr. Smith to pay for Mr. Jones’ attorney’s fees.  In the end, Mr. Jones wouldn’t be out any money, and Mr. Smith would have had his day in court. 
The requirements for summary judgment vary from state to state, but in general, you need to show the court two things:
1:         That the facts clearly support your side.  In Texas, for example, you have to show that “reasonable and fair minded people” cannot possibly come to different conclusions about what the evidence shows.  If reasonable and fair minded people could come to different conclusions about the facts of the case, then summary judgment shouldn’t be granted.
                     2:         That the law clearly supports your side.  A common use of the summary judgment is to dispose of lawsuits where the statute of limitations has passed.  Many states have a four-year statute of limitations for breach of contract.  So, if you bought a car in 1995 and tried to sue the dealer for breach of contract in 2000, you wouldn’t legally be able to win – the statute of limitations would bar you from recovery – and the judge would grant the car dealer’s motion for summary judgment.  In most medical malpractice lawsuits, there is a two-year statute of limitations. 

Summary judgments have disposed of frivolous lawsuits for decades.  They allow a defendant in a frivolous lawsuit to get out of the case quickly and without the expense of a full-fledged trial.  Often, the defendants are even awarded their attorney’s fees for preparation of the motion for summary judgment.

The bottom line is that because of the summary judgment, very few “frivolous lawsuits” ever make it to trial.  It could even be argued that any case that makes it past summary judgment can’t be a frivolous lawsuit because an impartial judge – not a “runaway jury” – decided that the case had enough merit to proceed.

Tort reformers want to make it hard for you to file a lawsuit, harder for you to win a lawsuit, and impossible for you to collect a meaningful amount of money in a case involving serious or permanent injury.  To accomplish these goals, they claim that frivolous lawsuits and runaway juries are destroying the justice system.  However, tort reformers don’t talk about how summary judgments have been effectively used for over 100 years to dispose of untold thousands of lawsuits.

The next time someone tries to persuade you that we need more barriers to filing lawsuits, ask them why they don’t think the summary judgment is getting the job done.

Let’s assume that somehow a frivolous lawsuit makes it past summary judgment and a “runaway jury” awards more money then they should.  Several judicial remedies exist to correct these verdicts.

Directed Verdicts:

Most people think that a jury can make whatever decision they want.  This isn’t the case at all.  A judge can issue a directed verdict, which tells the jury that they must make a certain decision.  Usually, a directed verdict is used when something comes out at trial that prevents the other side from winning as a matter of law.  For example, it could come out during the trial  that a key event happened so long ago that the statute of limitations prevents the plaintiff from winning.  In such a case, there would most likely be a directed verdict for the defendant.

Less often, the evidence in a case is so strong that the judge feels that there can be only one verdict, and he or she would order the jury to return that verdict.  One example would be a case where someone caught the auto accident in question on videotape, and the tape clearly shows that one of the parties to the lawsuit ran a red light, and is therefore at fault.  In such a case, the judge may direct the jury to find in favor of the person who did not run the red light.

Directed verdicts are more common in criminal cases than in civil cases, because the summary judgment would typically be used to dispose of a civil case before a jury trial.  However, directed verdicts can and do allow judges to dispose of civil lawsuits without merit.

Judgment Not Withstanding The Verdict (JNOV):

Everyone is familiar with the concept of appealing a decision; if you lose your case, you can generally appeal it to a higher court.   However, not everyone is familiar with a Judgment Not Withstanding the Verdict (JNOV).  JNOV is an acronym for Judgment non obstante veredicto, which is Latin for “notwithstanding the verdict”.

A JNOV is one of the ways that a judge can reduce the dollar amount of a verdict.  Some states require that an attorney file a motion for a JNOV, while other states allow a judge to issue a JNOV sua sponte, which is Latin for “of its own accord.”  A JNOV can set aside an entire verdict, or just parts of a verdict.  Here’s a good example of how a JNOV could correct an improper jury verdict:

In many states, if a jury finds that the conduct of a defendant in a lawsuit was “knowing” and/or “intentional”, the court must double or triple the amount of a jury verdict.  Let’s assume that in a medical malpractice case, a doctor made an honest mistake.  Maybe he transposed the numbers in a prescription, and the plaintiff ended up taking too much medication.  But, for whatever reason, the jury found that this honest mistake was intentional, and awarded $10,000 dollars.  Because the doctor’s conduct was found by the jury to be intentional, the judge would have to award the plaintiff $30,000 dollars.  However, if the evidence was very convincing that this was an honest mistake, a JNOV could eliminate the finding of the jury that the doctor’s conduct was intentional, and the plaintiff would be awarded only the $10,000 dollar jury verdict.

Directed verdicts and JNOV’s are two mechanisms that judges have available to prevent juries from awarding damages when they should not, and to reduce jury verdicts that are clearly excessive.   One example of verdict reduction occurred in Stella Liebeck’s famous lawsuit against McDonald’s.  In that case, the judge reduced the jury award from over $2 million dollars to $480,000 dollars.  Of course, tort reformers don’t tell the public about the many ways judges can reduce or ignore improper jury verdicts.  Tort reformers aren’t as concerned about reducing large jury verdicts as they are about the bad press that accompanies the verdicts.  In fact, most large jury verdicts are paid for at least in part by insurance policies!

Settling After a Decision:

In many cases, such as the famed McDonald’s coffee case, the plaintiffs in a lawsuit will settle the case for less than they were awarded.  In the McDonalds case, Stella Liebeck was awarded $2.7 million dollars, and the judge reduced the award to $480,000.  Stella settled with McDonalds for a confidential amount less than $480,000.

Plaintiffs and plaintiff’s attorneys are often motivated to settle because a settlement means they won’t have to go through a lengthy and potentially risky appeals process.  This is where big companies have the advantage over individual plaintiffs: A major corporation can afford to spend time and money to drag a case out for years, while plaintiffs and their attorneys more often can’t afford to wait.  Remember, the plaintiff’s attorney may have $50,000 of his or her money invested in the case, and may need it back sooner rather than later.  Settlements are extremely common, and are yet another way that even justified large jury verdicts are reduced.

Appealing The Decision:

The majority of cases where a jury awards millions of dollars are appealed, and many times, those verdicts are reduced or overturned on appeal.  For example, one appellate court reduced a $505 million dollar verdict down to $19 million dollars – a $486 million dollar reduction.  For the record, this case wasn’t a personal injury case.  It was an intellectual property case where one big corporation sued another.  That’s another secret tort reformers don’t want to get out: Businesses sue each other far more often than they are sued by individuals.

While some verdicts are reduced, others are overturned entirely by appellate courts.  It’s important to realize that the judges in appellate courts aren’t overly emotional jurors, but are seasoned judges who place far more weight upon the legal issues in a case then on the emotional issues.  As such, incredibly large jury verdicts are rarely upheld by the many appellate courts in our country.  In fact, the United States Supreme Court decided a series of cases that guides appellate courts to determine whether a jury award is so large as to be unconstitutional.

Despite what tort reformers claim, large jury verdicts are the exception, and not the rule.  When juries do return large verdicts, the plaintiffs usually settle for less than verdict or see the verdict reduced or overturned by an appellate court.

Our justice system is a system of checks and balances.  Before someone can even bring a case, they have to convince an attorney that their case is worth gambling time and money on.  The contingent-fee agreement weeds out countless cases that have no merit.  Once an attorney accepts the case, a judge will most likely scrutinize the facts and law applicable to the case through a summary judgment.  If the judge decides that the case has merit, then the case will be presented to an impartial jury of twelve men and women.  If those twelve men and women are convinced that the plaintiff has proven his or her case, the jury will then rule in favor of the plaintiff, and award compensation for the plaintiff’s injuries.  The judge has an opportunity to modify, reduce, or set aside the jury’s verdict.  Then, the defendant has an opportunity to appeal his case to higher courts, and even more experienced judges can then modify, reduce, or set aside a jury’s verdict.

The burden of proof in any case is always on the plaintiff, which means the deck is stacked in favor of the defendants.  Multimillion-dollar jury verdicts rarely survive the appeals process.  Yet tort reformers continue to argue that we need more barriers to file lawsuits, and statutory limitations on how much money can be awarded in the lawsuits that are filed.  The reason is that the big corporations who push for tort reform don’t want the bad press and public scrutiny that accompanies trials where people are severely injured or killed.  Instead, they prefer to enter into confidential settlements that the public never knows about.

Tort reform isn’t about fixing a “broken” justice system; it’s about protecting the public image and bottom lines of the biggest and most powerful companies in the world.  Tort reform isn’t about protecting doctors from high insurance rates; it’s about protecting their insurers from having to pay large judgments.  Tort reform isn’t about keeping “greedy lawyers” from filing frivolous lawsuits; it’s about keeping those who are severely injured out of the court system and away from the public eye.


Administration opposes reporter shield law

Thursday, September 21st, 2006


WASHINGTON — The No. 2 official at the Justice Department said Wednesday that a shield law for reporters would encourage leaks of classified information.

At a Senate Judiciary Committee hearing, Deputy Attorney General Paul McNulty also said the proposal to protect reporters from having to identify their sources would “significantly weaken” the department’s ability to obtain information it needs to protect national security.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., rejected McNulty’s opposition, saying he wants to push forward with the bill, inspired in part by last year’s jailing of journalist Judith Miller, then of The New York Times.

Miller had refused to cooperate with prosecutors in the Valerie Plame leak investigation. She subsequently disclosed that the source who told her of Plame’s CIA identity had been Vice President Dick Cheney’s now-indicted former chief of staff, I. Lewis Libby.

The Senate proposal would allow reporters to protect their confidential sources only in some instances. There would be exemptions in cases involving guilt or innocence, death or bodily harm, eyewitness accounts of criminal activity, and unauthorized disclosure of properly classified information.

McNulty said an exemption for national security was inadequate because the government would have to prove in court that a news leak harmed security. The Senate legislation would inject the federal judiciary “to an extraordinary degree” into executive branch functions, said McNulty.


A former solicitor general in the Bush administration, Theodore Olson, supported a shield law, saying it would promote investigative journalism.

“Naturally, the Department of Justice does not want its judgments second-guessed by courts,” Olson testified. But Congress should not recoil from ensuring judicial oversight on government decisions such as warrants for eavesdropping on phone conversations, Olson said.

Clarity also is needed given a split in the federal courts as to whether journalists are entitled to protections, Olson added.

In an interview, Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said it was frustrating listening to testimony about “false, overwrought warnings about national security.”

The 109th Congress is running out of time to act on the legislation. A House version of the bill would allow courts to compel reporters’ testimony when necessary to prevent “imminent and actual harm” to national security. Differences between the two bills would have to be reconciled in a conference committee after the two chambers pass the bill.

No. Ky. Bar Association seeking Nominations for Distinquished Lawyer of the Year Award

Thursday, September 21st, 2006

The Northern Ky. Bar Association (NKBA) is currently accepting nominations for the 2006 Distinguished Lawyer of the Year Award.  If you would like to submit a nomination, please complete this form.  You must submit your nomination by October 31st as the Board will review the nominations on November 1.

Past Recipients of the NKBA Distinguished Lawyer Award
1995 Thomas C. Smith
1996 Richard D. Lawrence
1997 David A. Schneider
1998 Stephen D. Wolnitzek
1999 Donald L. Stepner
2000 Louis A. Ball
2001 William J. Kathman, Jr.
2002 Paul J. Schachter
2003 H. Douglas Rouse
2004 Thomas L. Rouse
2005    E. Andre Busald

The Criteria for the Distinguished Lawyer Award


Twice annually, the NKBA Board of Directors and Officers accept nominations for the Distinguished Lawyer Award. Recipients are selected as deemed appropriate. A plaque will be given to the recipient and a composite plaque hangs in each Northern Kentucky Courthouse.

The Courthouse Plaque Reads:

In recognition of distinguished and meritorious service to the practice of law and administration of justice in the Northern Kentucky Community

Please nominate a colleague:
I nominate
A brief reason for my nomination is

Please mail, fax or email your nomination to NKBA:
130 Dudley Rd, Suite 190, Edgewood KY 41017
P 859-781-1300 F 859-781-1277

KRS CHAPTER 202 – Kentuckys License to Kill. A sad tale of violence and death is replayed once again in Kentucky.

Wednesday, September 20th, 2006

Editorial by LawReader Senior Editor Stan Billingsley.
KRS CHAPTER 202 – Kentucky’s License to Kill.  A sad tale of violence and death is replayed once again in Kentucky.  The legislature knows about this problem and has failed to act.
   Billy Sartin, 47, was charged with two counts of murder and one count each of kidnapping and assault. The Ky. State Police said he had killed Jeffrey Mattox and Billy Proctor and wounded Geraldine Collins Monday night in Inez, about 40 miles North of Pikeville, near the West Virginia border.

John Sartin said his brother suffered from schizophrenia and at times acted paranoid or delusional though he had a prescription for anti-psychotic drugs. John Sartin said his brother had been in and out of mental hospitals in central Kentucky for more than a decade. If his brother is convicted, John Sartin said he thinks Billy Sartin should be institutionalized instead of locked up.

While Sartin has on at least one occasion been allowed to stand trial, on most other occasions he has avoided punishment due to his psychotic condition which generally makes one incompetent to stand trial.  At first blush this appears to be a repeat of a story we have studied for the last fifteen years. 

     While a member of the judiciary (I am now retired) we studied the mental health hospitalization laws of all fifty states and learned that Kentucky law makes it harder to retain a dangerous psychotic in jail or in a mental health facility, than any other state in the U.S.

Let me state for the record.  Most people who are mentally ill are not violent. The people we refer to in this article are people who have demonstrated a propensity to violence and they represent only about 300 cases in the state of Kentucky at any one time.
    The statutory procedure requires the trial judge hearing a trial of a person who is found to be mentally incompetent to be sent to a mental facility.  This would appear to provide care for dangerous people who have already harmed others.   Nevertheless, the law in Kentucky allows any physician at a mental facility to overrule any Judge’s court order to hold the person in custody.

   The admission requirements for our mental health facilities mandate that a mentally ill person, must be mentally ill, a danger to himself or others, AND also must benefit from being institutionalized.  Mental Health professionals told us that some people are so ill, that they will never get any better, and they will always remain dangerous.   Under the statute, since the patient will not benefit from treatment by the mental hospital, he must be released.

   The legal standard for trying a mentally ill person is an evaluation of his ability to assist in his own defense.  If he can’t, then he can be hospitalized, but can not be tried by the courts and sent to prison.  If sent to a mental health facility he is frequently released within thirty days, and often is released is less time.

So that is Kentucky’s nasty Catch 22.   People with a diagnosis similar to that of Sartin are found too mentally ill to stand trial, but since they are so far gone they won’t benefit from institutional treatment, they are required by law to be turned out on the streets, still ill and likely to repeat their violence and to harm someone else.  Sometimes they are pumped full of anti-psychotic drugs and then are released. These mental health laws are found in Chapter 202 of the Kentucky Revised Statutes.  The courts are not allowed to mandate that a dangerously mentally ill person be retained in the mental health hospital.  There is no procedure for an appeal of a hospital’s decision to release a mental health patient even when the court has ordered the patient to be hospitalized.

   Efforts have been explored by the legislature over the last fifteen years.  I have even been invited to testify before committees studying this problem.  All efforts at reform have been ignored by the legislature…and the reason as it appears to me is a lack of funding for mental health care in Kentucky.

   Thirty years ago, Kentucky had 15,000 mental health beds funded.  Today we have less than 1000 mental health beds.  It is interesting to note that while we have emptied 14,000 mental health beds since the late 1960’s, we have during that same time period added 20,000 prison beds.  Does anyone else see a possible diversion of patients in need of mental health care into the prison system?   

It costs over $100,000 a year to maintain a mental health bed, and only $18,000 a year to maintain a prison bed. This is admittedly an expensive problem to solve.  It is far cheaper to let the public be placed at risk of violence.

In some cases, with the assistance of a Judge’s wink, the mental condition is overlooked and the ill person is sent to prison.  While that may be done on occasion it is inconsistent with the existing law and I cannot report on any particular case where this has occured.

     The courts will likely not be able to try Sartin for the criminal charges filed against him if he is indeed still psychotic and delusional..  If that condition is found to exist by the court, he will be ordered to be evaluated by Eastern State Hospital, and will shortly be released after he is pumped full of anti-psychotic drugs that may alleviate his condition long enough for him to be released. 
 Sartin’s brother says he was delusional. In my experience this is code for “he is hearing voices�.  In every mental health hospitalization case I sat on over a period of l9 years, whenever a person reported that he “heard voices� those voices where inciting the patient to violence, either against himself or against others.

    Perhaps he will take his drugs in the future, and these drugs have a dramatic effect on many.  But most likely he will be released and cease taking the medication, as it is reported he did before the killings with which he is accused, were committed.  The classic example is that mentally ill people like Sartin simply refuse to take their prescribed medications and once again become violent.

      We proposed in our study, a procedure where the patient who was ordered to take anti-psychotic drugs, for his protection and the protection of the public, be paroled only as long as he complied with the physician’s diagnosis and took the prescribed medications to control his violence.  This bill went no where.  The Mental Health lobby felt it was cruel. 
Tell that to Jeffrey Mattox, Billy Proctor and Geraldine Collins.

Riots in Budapest. The public stands up against Government lying.

Wednesday, September 20th, 2006

By LawReader Senior Editor, Stan Billingsley-

     I just recently visited Budapest and was surprised to see the news coverage reporting some 10,000 people are calling for the removal of their Prime Minister due to his admission of having lied, “morning, evening and night� about the economy while he was campaigning for last April’s election.   The Hungarians seemed to me to be an intelligent and gentle people.  I guess the admitted lying has aroused their native instincts.


This taped admission by the Prime Minister was released and played on television earlier this week.  The tape is 25 minutes long and details how much Prime Minister Ferenc Gyurcsany and his Socialist Party lied to the public to get elected.


    The crowds are camped out near the Parliament Building which I recently visited.  I remember that the building is famous for having 365 statutes on its roof and many eves.  One statute for every day of the year.


     It has been reported that this is the worst violence since the l956 uprising.  At that time, emboldered by the campaign comments of Dwight Eisenhower, in which he indicated he would come to the aid of the Hungarians if he was elected, to help them free themselves from Russia and Communism.   The Hungarians took Eisenhower seriously, and started a revolt.  Eisenhower, then ensconced in the White House, and not wanting to start a nuclear war with Russia deferred from his earlier promises.  The Russians sent in their tanks to crush the revolution of the brave Hungarian people.


     I saw a small park in Budapest with a bridge.  In the middle of the bridge was a lifesize statute of the leader of the people’s revolution.  He was tried and executed by the Communists.  This statute is not far from the Parliament building.


    The leader of the public uprising, Viktor Orban, was the loser in the last election for Prime Minister.  This week he demanded the resignation of Gyurcsany and called him,

 “a sick, lying dilettante�.


The Hungarian public was stunned by the blunt admission of government ineptitude during the first term of Gyurcsany and his party.


     Another quote from the 25 minute tape stated:  “No European country has done something as boneheaded as we have…Plainly, we lied through the last year and a half, two years.â€?

Today the Prime Minister was interviewed for international television (broadcast on CNN) and he said he would not step down.  He made the comment that is probably too true, but is nonetheless hard to stomach. He justified the lying to the public by saying, “all political parties do this.�


     Seems like we have heard that same justification in Frankfort recently.  The argument that “everyone is doing itâ€? never worked on my mother when I was a child.  I guess if you lie to a whole country you can make your own truth…today we just call this “spinâ€?.


We were told a story about the Hungarian people.  Centuries ago the Vatican sent a priest to Budapest to Christianize the pagans.  They put him in a barrel, drove long nails in the sides, and then rolled the barrel down a steep mountain.  If I was the Prime Minister I would be worried…very worried.



Wednesday, September 20th, 2006

This advice is claimed to come from a retired insurance company agent. We don’t know if it works or not. We can’t see anything patently illegal about it however.  

It’s author claims it works in every state.

 If you get a speeding ticket or if you got a ticket going through a red light or whatever the case may be, you’re going to get points charged against you on your license. Points cost you money!   This is a method to ensure that you DO NOT get the points.   

 When you get your fine, send in a check to pay for it. However, if the fine is $79.00 (for example) make the check out for $82.00 or some small amount over the fine.
 The system will then have to send you back a check for the difference, however here is the trick.


 Points are not assessed to your license until all financial transactions are complete. If you do not cash the check, then the transactions are NOT complete. The system has received it’s money and is satisfied and will no longer bother you.

10 tips that can let you know if someone is lying to you.

Wednesday, September 20th, 2006

10 Ways to Catch a Liar

Experts have 10 tips that can let you know if someone isn’t telling you the whole truth.
By Heather Hatfield
WebMD Feature                               Reviewed By Louise Chang, MD


   More From WebMD
Lying Makes the Brain Work More
Stomach May Act as Lie Detector
How to Avoid Being a ‘Sucker’


J.J. Newberry was a trained federal agent, skilled in the art of deception detection. So when a witness to a shooting sat in front of him and tried to tell him that when she heard gunshots she didn’t look, she just ran — he knew she was lying.
How did Newberry reach this conclusion? The answer is by recognizing telltale signs that a person isn’t being honest, like inconsistencies in a story, behavior that’s different from a person’s norm, or too much detail in an explanation.
While using these signs to catch a liar takes extensive training and practice, it’s no longer only for authorities like Newberry. Now, the average person can become adept at identifying dishonesty, and it’s not as hard as you might think. Experts tell WebMD the top ten ways to let the truth be known.
Tip No. 1: Inconsistencies
“When you want to know if someone is lying, look for inconsistencies in what they are saying,” says Newberry, who was a federal agent for 30 years and a police officer for five.
When the woman he was questioning said she ran and hid after hearing gunshots — without looking — Newberry saw the inconsistency immediately.
“There was something that just didn’t fit,” says Newberry. “She heard gunshots but she didn’t look? I knew that was inconsistent with how a person would respond to a situation like that.”
So when she wasn’t paying attention, he banged on the table. She looked right at him.
“When a person hears a noise, it’s a natural reaction to look toward it,” Newberry tells WebMD. “I knew she heard those gunshots, looked in the direction from which they came, saw the shooter, and then ran.”
Sure enough, he was right.
“Her story was just illogical,” says Newberry. “And that’s what you should look for when you’re talking to someone who isn’t being truthful. Are there inconsistencies that just don’t fit?”
Tip No. 2: Ask the Unexpected
“About 4% of people are accomplished liars and they can do it well,” says Newberry. “But because there are no Pinocchio responses to a lie, you have to catch them in it.”
Sir Walter Scott put it best: “Oh what a tangled web we weave, when first we practice to deceive!” But how can you a catch a person in his own web of lies?
“Watch them carefully,” says Newberry. “And then when they don’t expect it, ask them one question that they are not prepared to answer to trip them up.”

Behavior Changes and Gut Reactions
Tip No. 3: Gauge Against a Baseline
“One of the most important indicators of dishonesty is changes in behavior,” says Maureen O’Sullivan, PhD, a professor of psychology at the University of San Francisco. “You want to pay attention to someone who is generally anxious, but now looks calm. Or, someone who is generally calm but now looks anxious.”
The trick, explains O’Sullivan, is to gauge their behavior against a baseline. Is a person’s behavior falling away from how they would normally act? If it is, that could mean that something is up.
Tip No. 4: Look for Insincere Emotions
“Most people can’t fake smile,” says O’Sullivan. “The timing will be wrong, it will be held too long, or it will be blended with other things. Maybe it will be a combination of an angry face with a smile; you can tell because their lips are smaller and less full than in a sincere smile.”
These fake emotions are a good indicator that something has gone afoul.
Tip No. 5: Pay Attention to Gut Reactions
“People say, ‘Oh, it was a gut reaction or women’s intuition,’ but what I think they are picking up on are the deviations of true emotions,” O’Sullivan tells WebMD.
While an average person might not know what it is he’s seeing when he thinks someone isn’t being honest and attribute his suspicion to instinct, a scientist would be able to pinpoint it exactly — which leads us to tip no. 6.
Tip No. 6: Watch for Microexpressions
When Joe Schmo has a gut feeling, Paul Ekman, a renowned expert in lie detection, sees microexpressions.
“A microexpression is a very brief expression, usually about a 25th of a second, that is always a concealed emotion,” says Ekman, PhD, professor emeritus of psychology at the University of California Medical School in San Francisco.
So when a person is acting happy, but in actuality is really upset about something, for instance, his true emotion will be revealed in a subconscious flash of anger on his face. Whether the concealed emotion is fear, anger, happiness, or jealousy, that feeling will appear on the face in the blink of an eye. The trick is to see it.
“Almost everyone — 99% of those we’ve tested in about 10,000 people — won’t see them,” says Ekman. “But it can be taught.”
In fact, in less than an hour, the average person can learn to see microexpressions.
Contradictions and Too Much Detail
Tip No. 7: Look for Contradictions
“The general rule is anything that a person does with their voice or their gesture that doesn’t fit the words they are saying can indicate a lie,” says Ekman. “For example, this is going to sound amazing, but it is true. Sometimes when people are lying and saying, ‘Yes, she’s the one that took the money,’ they will without knowing it make a slight head shake ‘no.’ That’s a gesture and it completely contradicts what they’re saying in words.”
These contradictions, explains Ekman, can be between the voice and the words, the gesture and the voice, the gesture and the words, or the face and the words.
“It’s some aspect of demeanor that is contradicting another aspect,” Ekman tells WebMD.
Tip No. 8: A Sense of Unease
“When someone isn’t making eye contact and that’s against how they normally act, it can mean they’re not being honest,” says Jenn Berman, PhD, a psychologist in private practice. “They look away, they’re sweating, they look uneasy … anything that isn’t normal and indicates anxiety.”
Tip No. 9: Too Much Detail
“When you say to someone, ‘Oh, where were you?’ and they say, ‘I went to the store and I needed to get eggs and milk and sugar and I almost hit a dog so I had to go slow,’ and on and on, they’re giving you too much detail,” says Berman.
Too much detail could mean they’ve put a lot of thought into how they’re going to get out of a situation and they’ve crafted a complicated lie as a solution.
Tip No. 10: Don’t Ignore the Truth
“It’s more important to recognize when someone is telling the truth than telling a lie because people can look like they’re lying but be telling truth,” says Newberry.
While it sounds confusing, finding the truth buried under a lie can sometimes help find the answer to an important question: Why is a person lying?
These 10 truth tips, experts agree, all help detect deception. What they don’t do is tell you why a person is lying and what the lie means.
“Microexpressions don’t tell you the reason,” says Ekman. “They just tell you what the concealed emotion is and that there is an emotion being concealed.”
When you think someone is lying, you have to either know the person well enough to understand why they might lie, or be a people expert.
“You can see a microexpression, but you have to have more social-emotional intelligence on people to use it accurately,” says O’Sullivan. “You have to be a good judge of people to understand what it means.”
Extra Tip: Be Trusting
“In general we have a choice about which stance we take in life,” says Ekman. “If we take a suspicious stance life is not going to be too pleasant, but we won’t get mislead very often. If we take a trusting stance, life is going to be a lot more pleasant but sometimes we are going to be taken in. As a parent or a friend, you’re much better off being trusting rather than looking for lies all the time.”

Published Sept. 4, 2006.
SOURCES: Jenn Berman, PhD, psychologist, private practice, Beverly Hills, Calif. Paul Ekman, PhD, professor emeritus of psychology, University of California Medical School, San Francisco. J.J. Newberry, senior special agent (retired), U.S.Treasury Department; instructor, Los Angeles County Sheriff’s Department Training Academy and Los Medanos College Police Academy. Maureen O’Sullivan, PhD, professor of psychology, University of San Francisco. Bartlett’s Quotations on Bartleby web site.




Wednesday, September 20th, 2006

by James Kilpatrick   Editors Note:  James Kilpatrick is a nationally syndicated Conservative columnist.

Unless the U.S. Supreme Court intervenes, Morton R. Berger will spend the rest of his life in an Arizona prison. Maybe he deserves it. Then again, maybe not. These are the facts.
In June 2002, Phoenix police arrested Berger on a state warrant charging him with sexual exploitation of a minor. Specifically, he was charged with possession of 20 photographs depicting, among other things, children being raped by adults, children engaging in sexual acts with other children, and children in sexual acts with animals. The 20 images introduced at trial were part of a large collection of pornographic images accumulated over a period of at least six years.
A jury found Berger guilty on 20 counts of sexually exploiting children under the age of 15 and sentenced him to 10 years on each count, the sentences to run consecutively. Last May the Arizona Supreme Court affirmed that judgment. One justice dissented; another expressed reservations. Last month counsel filed Berger’s appeal in the U.S. Supreme Court. We will know by mid-November if the court will hear it.
There is no question of Berger’s guilt. He emerges from the record as an almost classic “dirty old man.” There is no evidence that he himself ever engaged in distributing, exhibiting, receiving, selling, purchasing, electronically transmitting or even “exchanging” pornographic images, all of which the Arizona law forbids. He was convicted solely of “possessing” such images. He collected them.
These facts should weigh in your calculus, for good or ill: He is 52 years old, married, a father of four, an award-winning teacher of world history. He has no criminal record of any sort. The state offered no evidence that he has ever created pornography or improperly touched a minor.
In their appeal to the Supreme Court, his counsel rely upon a single argument: The unservable sentence violates the Eighth Amendment to the Constitution. The amendment decrees that courts may not inflict “cruel and unusual punishments.” The 200-year prison sentence imposed on Berger is plainly “unusual.” At that punitive level, Arizona stands alone. Its minimum 10-year sentence for possession of a single piece of child pornography is greater than the maximum sentence for this offense in 35 states. It is equal to the maximum in nine others.
Is the 200-year sentence also constitutionally “cruel”? Who is to say? Manifestly, the question is hypothetical, or academic. On the record, Berger is a middle-aged, dirty-minded, part-time pedophile. But also on the record, he has never physically harmed anyone. He never even bought any of this stuff. He merely downloaded it.
In the Supreme Court of Arizona last May, Justice W. Scott Bales held that the sentence imposed on Berger must be affirmed unless it is “grossly disproportionate” to the crime. To answer that question, he said, judges must consider (1) the sentences imposed by Arizona on other crimes of comparable gravity, and (2) the sentences imposed by other states for the same crime, i.e., possession of pornography involving juveniles.
After weighing the state’s “compelling interest” in protecting children from sexual exploitation, Justice Bales voted to affirm. Justice Andrew D. Hurwitz not only concurred, he “fully” concurred — but he “reluctantly” concurred as well. If he were a legislator, he would be free to find such a long sentence “shocking to my conscience and vote for a less draconian sentencing scheme.”
Justice Rebecca White Berch, dissenting in part, had the last and most sensible word. She agreed that courts must defer to legislatures on the fixing of criminal sentences, but the Constitution prohibits sentences that are “grossly” disproportionate. In this instance, Arizona’s sentence for possession of pornography “is by far the longest in the nation.” It is more severe than sentences imposed in Arizona on first offenders for rape or aggravated assault.
In the federal courts, Justice Berch observed, where sentencing guidelines are fixed by an extra-judicial commission, Berger would have faced only five years in prison. Arizona’s sentences for possession of child pornography are “not merely disproportionate, but grossly disproportionate to the crime.”
She concluded: “I do not condone Berger’s crimes. Child pornography is a serious offense. … Nevertheless, we are asked to determine in this case whether 200 years is just punishment for a defendant who possessed child pornography but directly harmed no one. The sentence provides no opportunity for rehabilitation and provides no second chance.”
This is a case the high court ought to hear. Morton Berger may be a creep, but on the record he’s a pretty sad creep. The sentence is absurd.