Archive for December, 2006

Destruction of misdemeanor records by AOC draws blistering Critique by Courier-Journal

Sunday, December 24th, 2006

The following Edtiorial was published in the Louisville Courier-Journal. The Chief Justice has appointed a committee headed by Ct.of Appeals Judge Tom Wine to review the policy which resulted in the implementation of this program.

Determined destruction
Somebody didn’t just get up one morning and destroy those misdemeanor records here in Jefferson County last month.
There was a policy, and bureaucrats were implementing it. The basic problem was the adoption of that policy, and the apparent absence of the right people at the table when it was developed.
But the relentless way in which the records purge was conducted despite objections is deeply disturbing.
The state Office of Probation and Parole pleaded with the Administrative Office of the Courts (AOC) not to haul away the microfilm records, because of their usefulness for pre-sentence reports.
Interim Jefferson Circuit Clerk Michael Losavio warned that 1) innocent folks would be prevented from proving that they had been cleared and 2) some guilty people would escape the consequences of prior convictions.
AOC’s answer? Hey, a policy is a policy.
As staff writer Andrew Wolfson reported, court officials seem to have violated their own rules, doggedly determined to remove not only the misdemeanor files but, as it turns out, an electronic file of Jefferson District Court cases from 1987 to 1998 — all without a required request from the circuit court clerk and without a required audit of their contents.
According to Court of Appeals Judge Tom Wine, a member of the investigative committee appointed by Chief Justice Joseph Lambert, somebody “got it backwards.” To paraphrase the Queen of Hearts, “Execution first! Trial after!”
The whole messy business has created real tensions between Jefferson County justice system officials and administrators of the state’s court system.
This comes at a time when the Chief Justice also has been criticized for what looked like, at best, gratuitous pontificating or, at worst, politically motivated meddling in Gov. Ernie Fletcher’s merit scandal legal troubles.
Chief Justice Lambert has chosen this time to name a relatively inexperienced legal aide, Jason Nemes, acting director of the far-flung state court system. Mr. Nemes spent about a year as law clerk for Mr. Lambert, and a little more time than that as his chief of staff.
Presumably, Chief Justice Lambert will be a featured speaker at the upcoming celebration of the Judicial Article here in Louisville.
It was 30 years ago this fall that voters approved a constitutional amendment, believing they were creating a unified, cohesive court system that could be administered efficiently and effectively by the Chief Justice.
His report on how things have turned out will be nothing if not timely.

Judicial Transparency and Ethics Enhancement Act of 2006, now before Congress

Thursday, December 21st, 2006

By Ronald D. Rotunda 

The Judicial Transparency and Ethics Enhancement Act of 2006, now before Congress, would create an inspector general for the courts. It offers modest reforms that would keep our judiciary independent (because no one favors a dependent judiciary) and help keep it accountable (because no one favors a judiciary that is above the law). 

Nonetheless, there are those who greet it the way Dracula would greet a bouquet of garlic. Justice Ruth Bader Ginsburg, for example, has said of the proposal: “That’s a really scary idea.” 

On the contrary, this bill would strengthen judicial independence because it would give people greater faith that if there were problems, the inspector general for the courts would deal with them and not sweep them under the rug. An inspector general would also protect judges from frivolous or false charges. 

There are already 57 inspectors general for other organs of government — for the Justice Department, Iraq reconstruction and so forth. The House of Representatives has imposed an inspector general on itself. Indeed, one wonders why it has taken so long to create one for the courts. 

Giving an IG the power to audit federal judicial expenditures, to recommend changes in laws or regulations governing the judicial branch, and to investigate fraud, waste and abuse, is a modest reform that would not dislodge the heavens. That’s why the House Judiciary Committee recently voted in favor of this bill by a bipartisan majority of 20 to 6. 

After I testified in favor of the legislation in June, I received many supporting letters. For example, a federal judge, John Kane (who gave me permission to quote his e-mail), wrote, “I’ve been a district judge for 29 years and think the federal judicial house has brought this legislation on itself.” He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge. 

Judge Kane’s e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, “and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, ‘John, think about it. The next time it could be you or me. We’ve got to stick together.’ “ 

Kane added, “I’ve recently heard of a number of judges who ruled on cases involving companies in which they owned an interest, yet nothing was done about it. The point is that the current system is a ‘kiss your sister’ operation that hasn’t worked and won’t as long as judges are covering one another’s butts. The present system is ineffectual and I think that could be demonstrated by the very sorry record.” 

Other judges may not favor these conclusions but they do not dispute the facts. Justice Stephen Breyer’s commission on judicial discipline recently reported that the judiciary failed to conduct a proper investigation of judicial misconduct in five of 17 “high visibility cases” between 2001 and 2005. This error rate, the report admitted, is “far too high.” 

We can do better. 

Right now the discipline process is conducted largely in secret. The proposed bill would give us sunlight, the best disinfectant. As for the independence of the judiciary, the proposed bill provides that the chief justice would appoint, and could remove, the inspector general. Federal judges already have lifetime tenure and salary protection. Giving them an inspector general whom the chief justice appoints and removes would not interfere with their independence. 

Opponents of this bill say that the sky is falling. But it is not falling. There are no cracks in the sky. There are not even pre-fracture incipient fissures in the sky. Instead there is a real need for change. 

The writer is university professor and a professor of law at George Mason University. 

 

Chief Justice Josephn Lambert appoints Jason Nemes as Acting Director of the Aministrative Office of the Courts.

Thursday, December 21st, 2006

 

   In his role as Acting Director of the Administrative Office of the Courts, Nemes will oversee the day-to-day policy, management and operations of the judicial branch of Kentucky state government, with more than 3,400 employees, 263 elected judges and 120 circuit clerks. The position is administrative in nature.

 

The 28 year old  Nemes graduated from law school two years ago.  Recently he has served as Chief of Staff of the Chief Justice. 

Executive Branch Ethics Commission appears to have exceeded their jurisdiction in proceeding against Dan Druen, and attempting to block Stumbo out of race for Governor.

Thursday, December 21st, 2006

An article by LawReader Senior Editor Stan Billingsley.
 
  We have reviewed actions taken by the Executive Branch Ethics Commission in two different actions. 
First, the Ethics Commission last week announced that they had found probable cause to charge Dan Druen with an Ethics Code violation (which if proven after a hearing could result in his prosecution for a class D felony) for actions for which he was already pardoned by Governor Fletcher.  Not only is the jurisdiction of the Commission questioned, but their motive in singling out Druen and ignoring at least eight others including the Governor himself for similar accusations of Ethics violations.

Secondly, the Commission has issued an ethics opinion that suggests Attorney General Greg Stumbo can be prosecuted for a violation of the Executive Branch Ethics Code if he runs for Governor against Governor Fletcher.

   Both of these actions raise issues concerning the jurisdiction and impartiality of the Executive Branch Ethics Commission. The five person commission consists of four appointees appointed by Governor Fletcher and one appointed by Gov. Paul Patton.

  This article provides readers with direct links to the important legal issues discussed.

The Commission seeks to limit the constitutional reach of the Governor’s Pardon Powers.

   A news story published December 18, 2006 states:

“Last Friday, the Executive Branch Ethics Commission “found probable cause to believe” that former Transportation Cabinet official Danny G. Druen committed 10 violations of state ethics laws related to the hiring scandal in Gov. Ernie Fletcher’s administration.

The charges against Druen stem from the creation of the infamous “hit list,” his alleged tampering with evidence, his attempt to influence the testimony of cabinet employee Cheryl Casey and his involvement in several personnel actions (including the firing of deputy inspector general Mike Duncan) in which political affiliation played a role.?

  The public records show that Governor Fletcher included Dan Druen in the persons covered by his blanket pardon for all acts relating to the Merit System Investigation prior to August 29, 2006.

   During a Capitol rotunda speech at 6pm on Aug. 29 attended by about 150 non-merit employees whom he had appointed to jobs, Fletcher said, “I cannot allow state government to continue to be consumed by this game of political ‘gotcha’ paralyzing our ability to serve you, the people of Kentucky…Some of the indictments are the equivalent of conspiring to commit noodling out of season.?  (Noodling is a form of fishing, and his denigration of the charges to that level has drawn heavy criticism.)

Fletcher indicated in his executive order on pardoning that it also included any future indictees except himself. 
 
 Under the power of the Executive Branch Ethics Commission a person found by the commission, after an investigation and hearings, to have violated the provisions of KRS Chapter 11A, may be prosecuted for a Class D felony.    See: Penalties for violation of Executive Branch Code of Ethics

  This complaint against Dan Druen filed by the Executive Branch Ethics Commission appears to be in direct conflict with the Governor’s power under Section 77 of the Kentucky Constitution to pardon persons charged with crimes.  See:   Pardon Powers of the Governor

Section 77- Ky. Constitution: “He shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons…?

   The Kentucky Supreme Court in Fletcher v. Graham, 2005-SC-1009-MR (Ky. 5/18/2006) (Ky., 2006) recently discussed issues which would clearly appear to apply to restrict the ability of the Executive Branch Ethics Commission from further attempts to prosecute and punish him for acts for which he was pardoned by the Governor. Fletcher v. Graham, supra held:

“The language of Section 77 is clear, and its meaning unambiguous. The Governor is given authority to grant pardons. Aside from cases of impeachment, absolutely no restriction is placed on this delegation of authority. Nothing in the language of Section 77 infers that general pardons are prohibited, nor is there any indication that a governor may not pardon a class of persons.

 We are not at liberty to insert meaning where the language of the provision is clear. Instead, the language of Section 77 leads to only one reasonable interpretation: that the framers intended to give the Governor broad and unrestricted discretion to issue pardons to whomever.?

…  The parties agree that a pardon serves to relieve the pardonee of criminal prosecution. “A ‘pardon’ is ‘[t]he actor an instance of officially nullifying punishment or other legal consequences of a crime.”37 It operates to eviscerate prosecution of the pardoned offense, because the pardonee is regarded as innocent: “The pardoned man is relieved from all the consequences which the law has annexed to the commission of the public offense of which he has been pardoned, and attains new credit and capacity, as if he had never committed that public offense.”

“…The law is clear and well-established: “the pardon is itself an absolute exemption from any further legal proceedings….”  There is no room for equivocation on this point. When a pardon has been issued, the court is without jurisdiction or constitutional authority to continue legal proceedings against the pardonee: “[w]hen a pardon… is brought to the attention of the court, it is the duty of the court to discharge the defendant and dismiss the proceedings against him….”

“…Moreover, any person falling within the class specified by the Governor’s pardon now holds a right, by virtue of the constitutional force of the pardon, to be free of any further legal proceedings. “In their proceedings the grand jurors cannot deprive a citizen of any substantial right assured by the constitution.”

“…A gubernatorial pardon operates to cease any further legal proceeding concerning the pardoned conduct, including indictments. When a grand jury is investigating alleged criminal conduct that is subsequently pardoned, it is the duty of the supervising court to instruct the grand jury of the legal effect of that pardon, as such information is relevant and material to the business of the grand jury.?

   Critics have opined that Druen is being harassed because he cooperated with the Attorney General’s investigation, and he has testified, and is quoted in numerous newspapers as having said that all he did was to follow Governor Fletcher’s orders in making up a hit list of Merit System employees to discharge in violation of the Merit System laws.

  Newspaper articles quoted as early as May, stated that others had come forward to state that Governor Fletcher was personally involved.  The testimony of Druen and others with personal knowledge would appear to provide the Commission with sufficient probable cause to institute an ethics investigation of Governor Fletcher.  Governor Fletcher has never been pardoned. Therefore, there is no legal impediment to the Executive Branch Ethics Commission investigating and prosecuting Governor Fletcher for potential violations of KRS Chapter 11A.  At least until the Governor pardons himself.

    It is troubling that the Ethics Commission has singled out Dan Druen for an ethics complaint, and then failed to treat all the other Fletcher administration employees involved, in the same manner.  Where are the Ethics Commission complaints against Transportation official Nighbert, Jim Adams, deputy transportation secretary, Richard “Dick” Murgatroyd,  deputy chief of staff for Fletcher, Cory Meadows,  state transportation program coordinator, Basil Turbyfill, director of office of personnel and efficiency, Bob Wilson, Deputy personnel secretary?

Why was Dan Druen the only indicted official singled out by the Ethics Commission for an ethics code complaint?

The actions of the Executive Branch Ethics Commission appear to be in direct conflict with the decision of the Ky. Supreme Court in Fletcher v. Graham.

  The procedures of the Ethics Commission are preliminary steps to criminal prosecution. Until we see different legal authorities otherwise, we can only reach the conclusion that Governor Fletcher’s pardon benefits all the persons pardoned.  If the Commission has the jurisdiction to prosecute Druen, and if it’s members are truly impartial and have fidelity to the law, then all the other pardoned officials should be very concerned.  Since the Governor has never been pardoned, he should be very concerned about potential investigation and prosecution by the Commission.

                                                 *****************

The Commission attempts to prevent the Attorney General from seeking higher office.

    The Executive Branch Ethic’s Commission relies on KRS 11A.005 to conclude that the Attorney General who has investigated and prosecuted the governor can not run for the office of Governor if the person he prosecuted is also running for that office.

One may argue that Section 72 of the Kentucky constitution sets the qualifications for the office of Governor. The advisory opinion of the Executive Branch Ethics Commission would add additional qualifications for candidacy to the office of Governor.

The constitution does not create an additional requirement of candidacy to prevent an attorney general who exercised the powers of his office from being eligible to run for the office of Governor.  No such additional qualification was ever written by the legislature.

Neverthless, the Executive Branch Ethics Commission by the adoption of Ethics Opinion 06-16 dated June 16, 2006, has de facto added such a clause to Sections 71 and 72 by holding that an Attorney General who performs his constitutional and statutory duties is ineligible to become a candidate for the office of governor.

We would suggest that Sections 71 and 72 set the only qualifications for the office of Governor, and neither the legislature or the Executive Branch Ethics Commission may add additional requirements. Once a candidate meets the requirements of Section 72, it is up to the voters of this Commonwealth to determine if they wish to elect or defeat a candidate.
                               Kentucky Constitution  -Section 72
                            ________________________________________
                 Qualifications of Governor and Lieutenant Governor — Duties of Lieutenant Governor.
                                  ________________________________________

 The Governor and the Lieutenant Governor shall be at least thirty years of age, and have been citizens and residents of Kentucky for at least six years next preceding their election. The duties of the Lieutenant Governor shall be prescribed by law, and he shall have such other duties as delegated by the Governor.
Text as Ratified on: November 3, 1992. History: 1992 amendment was proposed by 1992 Ky. Acts ch. 168, sec. 3; original version ratified August 3, 1891, and revised September 28, 1891.

   The Commission supports it’s conclusion that if Attorney General Greg Stumbo becomes a candidate for the office of Governor, after having prosecuted the sitting Governor, and that his candidacy will be a violation of the Executive Branch Code of Ethics pursuant to KRS 11A.005 (1) (c) which states that:

       “ A public servant not use public office to obtain private benefits;?

  Chapter 11A does not provide a definition for the terms “public? and “private? as cited by the Commission.  It is a standard legal rule that when a statute does not define a term that the term shall be given its plain and simple meaning.  In such instances the courts often turn to a dictionary to determine what the plain and simple meaning of a word might be.

 See: LWD Equipment, Inc. v. Revenue Cabinet, Commonwealth, 136 S.W.3d 472 (Ky. 06/17/2004)

Also see: KRS 446.080 which provides…:
(4) All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning.
  When we review the widely accepted Merriam-Webster Dictionary we find the following definitions for these terms.

                         Merriam-Webster Dictionary Definition of PUBLIC:

2 a : of, relating to, or affecting all the people or the whole area of a nation or state

b : of or relating to a government c : of, relating to, or being in the service of the community or nation
7 : supported by public funds… 

                      Merriam-Webster Dictionary Definition of PRIVATE:

2 a (1) : not holding public office or employment (2) : not related to one’s official position

See complete:  Definitions: Merriam-Webster Dictionary  –  public vs. private

   Under the Commission’s reasoning running for the office of Governor is a private benefit as opposed to being a public benefit.  However, the Merriam Webster Dictionary defines “private? as “not related to one’s official position?.

If would appear that the office of Attorney General, and the office of Governor are both “official positions?, and not private positions.  We would suggest that the Commission has built their theory on overly broad definitions of the words “public? and “private?.

   The Commission also contends that even if the Governor, who was investigated by the Attorney General, withdraws from a run for future office, that the Attorney General would still be ethically prohibited from himself becoming a candidate for Governor.    The Commission opines that this would create “the perception that a conflict of interest existed all along.?

 They apply this prohibition even if the Attorney General’s investigation has been completed prior to his run for Governor.

 If a court were to write new legislation, there are many who would deride such a court for being “activist? and for exceeding the authority granted them by the legislature.  Yet the Ethics Commission has arrogated unto themselves the power to amend Sections 71 and  72 of the constitution to write new qualifications for the office of Governor, and to adopt definitions that were never adopted by the legislature when they wrote KRS Chapter 11A.005(1)(c).

   Section 71 of the Constitution spells out a condition which precludes candidacy for the office of Governor.  That condition prevents a person from serving more than two consecutive terms.  If the authors of the Constitution had chosen to add additional conditions precluding candidacy for that office, they would surely have added that qualification either in Section 71 or Section 72.  They chose not to do so. Nevertheless the Fletcher appointed Ethics Commission has chosen to write language into the Constitution that the original authors never intended.

  When an public officer or citizen declares his candidacy against a sitting governor, there is always “the perception that a conflict of interest existed all along.? Again we suggest that such a perception is not written in Sections 71or Section 72 of the Kentucky constitution as being a bar to ones candidacy.

The Kentucky Supreme Court in Fletcher v. Graham, 2005-SC-1009-MR (Ky. 5/18/2006) (Ky., 2006) held:

“When interpreting constitutional provisions, our focus rests on the express language of the provision, and words must be given their plain and usual meaning.

 This Court is “not at liberty to construe… plain and definite language of the Constitution in such a manner as to thwart the deliberate purpose and intent of the framers of that instrument.”

 In fact, our predecessor Court recognized as a “cardinal rule” of constitutional interpretation the principle that rules of construction may not be employed where the language of the provision is clear and unambiguous. ”

It is to be presumed that in framing the constitution great care was exercised in the language used to convey its meaning and as little as possible left to implication….”

The findings of the Executive Branch Ethics Commission appear on review to be in excess of their jurisdiction, and in violation of the mandates of the Constitution.

  The Commission has issued three opinions concerning prosecutors and the application of the Executive Branch Code of Ethics. It is in these opinions that the Commission seeks to bar the current Attorney General from running for the office of Governor.

To see their reasoning go to:

Advisory Opinion 06-16, June 16, 2006

Advisory Opinion 06-3, April 10, 2006
Advisory Opinion  03-5, February 13, 2003
                                          
                                         AUTHORITIES
Makeup of the Commission

   KRS 11A.060 prescribes the make up of the Executive Branch Ethics Commission. This law was adopted in l992, and has never before been interpreted by the courts to enable the Commission to write conditions for candidacy to public office.

The current five member board is made up of four persons appointed by Governor Fletcher and one person appointed by Governor Paul Patton.

KRS 11A.060 Executive Branch Ethics Commission — Membership — Officers –
Compensation — Removal — Meetings.
(1) The Executive Branch Ethics Commission is hereby established.
(2) The commission shall be composed of five (5) members appointed by the Governor.
(3) Members of the commission shall serve staggered terms of four (4) years. Of the
initial members appointed as provided in this section, one (1) member shall serve a
term of one (1) year, one (1) member shall serve a term of two (2) years, one (1)
member shall serve a term of three (3) years, and two (2) members shall be
appointed for terms of four (4) years. Thereafter, all appointments shall be for four
(4) years.
(4) The commission shall elect from its membership a chairman and vice chairman. In
the absence of the chairman or in the event of a vacancy in that position, the vice
chairman shall serve as chairman.
(5) A member of the commission shall receive one hundred dollars ($100) per day for
attending meetings and shall be reimbursed for actual and necessary expenses
incurred in the performance of duties.
(6) All members shall be registered voters of the state.

     Four of the five current members of the Executive Branch Ethics Commission were appointed by Governor Ernie Fletcher.  One member, Cynthia Stone was appointed by Governor Paul Patton.

JOHN A. WEBB, CHAIR
Governor Ernie Fletcher appointed Mr. Webb on October 20, 2004 to the seat vacated by K. Gail Russell. Mr. Webb’s term will expire on July 14, 2008.
An attorney in Ashland, Kentucky, Mr. Webb is a partner in the firm of McKenzie, Woolery & Webb. He earned a degree in political science at Georgetown College and his law degree at the University of Louisville.

CYNTHIA C. STONE, J.D., VICE CHAIR
Governor Paul E. Patton appointed Ms. Stone, July 23, 1996, to a four-year term of office expiring July 14, 2000. Ms. Stone was elected Vice Chair of the Commission by its membership on August 31, 1999. Governor Patton subsequently reappointed Commissioner Stone to a second four-year term ending July 14, 2004. She was elected Chair of the Commission August 10, 2001. Ms. Stone resigned her position January 28, 2003. Ms. Stone was appointed on November 19, 2003 to a new four-year term ending July 24, 2007 and was elected Vice Chair on September 30, 2004.
Formerly a partner in the law firm of Stone, Pregliasco, Haynes, Buba in Louisville, Kentucky, Ms. Stone is now busy in real estate ventures. She received her undergraduate and graduate degrees from the University of Louisville.

RAY H. ALTMAN
Governor Ernie Fletcher appointed Mr. Altman on August 16, 2004 to a four-year term expiring July 14, 2008.
A former Kentucky State Representative from the 51st District, Mr. Altman is currently a licensed, independent insurance agent in Campbellsville, Kentucky. He attended Campbellsville College. Mr. Altman formerly worked in the health care industry as a Registered X-Ray Technician and as a Hospital Administrator.

THOMAS V. HANDY
Governor Ernie Fletcher appointed Mr. Handy on June 2, 2005 to the unexpired term of Dr. Melissa Dennison who resigned. Mr. Handy’s term will expire July 14, 2006.
Note: The Commission’s web site lists Mr. Handy as a current member of the commission although his original appointment expired in July of 2006. 
Mr. Handy graduated Centre College and earned his law degree at the University of Kentucky. A former Commonwealth’s Attorney for the 27th Judicial District, Mr. Handy is currently a member of the Kentucky Racing Commission. He makes his home in London, Kentucky.

J. QUENTIN WESLEY
Governor Ernie Fletcher appointed Mr. Wesley on August 22, 2005 to a four-year term that will expire July 14, 2009.
A resident of Morganfield, Mr.Wesley is a self-employed attorney and former State Representative. He earned his undergraduate and law degrees from the University of Kentucky.

Commission Staff

Staff Members
Executive Director: Jill LeMaster
General Counsel: John R. Steffen
Executive Assistant:Daphne Criscillis
Executive Secretary:Jenny May
Investigator:Jeff Jett

Ethics Officers

To give the Commission additional assurance that state employees are knowledgeable of the provisions of the Executive Branch Code of Ethics, the Commission requests that each executive branch agency appoint an “ethics officer” to represent their respective agency. Ethics Officers act as liaisons between their staffs and the Commission. The ethics officers are furnished all advisory opinions and publications of the Commission, and they are responsible for disseminating such information to their staffs. Ethics officers also serve as the appointing authority for the approval of outside employment by employees within their agency.

Ethics Officers Richard Carroll, Catherine Bell, Nicole Liberto, Craig Maffet, Steve Humphries, Rex Cecil, Carolyn Starbuck, Janet McWilliams, and Karen Greenwell all were appointed during 2004 after Governor Fletcher assumed office.  Corey Bellamy was appointed in January 2006.

Kentucky Administrative Regulations concerning the Executive Branch Ethics Commission

Go to:  KAR

Kentucky Revised Statutes  concerning the Executive Branch Ethics Commission

Go to: Kentucky Revised Statutes Chapter 11A 11A.001-11A.990

Penalties for violation of Executive Branch Code of Ethics

KRS 11A.990 Penalties — Time limitation on prosecution for violation of KRS 11A.040.
(1) Any person who violates KRS 11A.040 shall be guilty of a Class D felony. In
addition:
(a) The judgment of conviction for a violation of KRS 11A.040(2) shall recite
that the offender is disqualified to hold office thereafter; and
(b) Any person who violates KRS 11A.040(1) to (5) shall be judged to have
forfeited any employment, or constitutional or statutory office he holds,
provisions of KRS Chapter 18A to the contrary notwithstanding.
Governor Issues Pardons for “noodling? August 29, 2006 – Pardon includes Dan Druen.

Editor: It was speculated at the time that the apparent cooperation of Dan Druen with prosecutors in the merit system investigation provided the impetus for the Gov. to issue blanket pardons on August 29th.

Judge Steve Horner’s Roundup on Ky. Gov.

   Saying the merit system hiring practices investigation was a “political tool? of state Atty.-Gen. Greg Stumbo, Gov. Ernie Fletcher pardoned all nine indictees thus far charged by the special Franklin County Grand Jury.

 The language in Fletcher’s pardon would also seem to exonerate any future persons who would be indicted in connection with the inquiry which is probing whether merit system jobs were illegally filled on the basis of politics. 

During a Capitol rotunda speech at 6pm on Aug. 29 attended by about 150 non-merit employees whom he had appointed to jobs, Fletcher said, “I cannot allow state government to continue to be consumed by this game of political ‘gotcha’ paralyzing our ability to serve you, the people of Kentucky…Some of the indictments are the equivalent of conspiring to commit noodling out of season.?  (Noodling is a form of fishing, and his denigration of the charges to that level has drawn heavy criticism.)

Fletcher indicated in his executive order on pardoning that it also included any future indictees except himself.   

Judge Steve Horner’s Roundup on Ky. Gov.
 
Former Transportation Cabinet administrative services commissioner Dan Druen – who was fired by Fletcher in July – told prosecutors that in April Fletcher was handed a copy of the “hit list? that he prepared and that he believed that Fletcher knew of the illegal scheme to remove registered Democrats in cabinet merit system positions  to make way for Republicans to replace them. This summary of Druen’s statement is from a transcript of a Fri., Aug. 26 interview by Druen to Assistant Atty.-Gen. Scott Crawford-Sutherland filed in court on Sep. 14 a few hours before Fletcher’s firing speech. 

Druen was the only one of the nine indictees who was charged with felony counts, and his arraignment was initially scheduled on Aug. 26.  However, it was postponed that morning leading to rampant speculation over the weekend that Druen already had or was about to plea-bargain with prosecutors.  On Mon., Aug. 29 Fletcher issued his rotunda pardons of all nine indicted, including Druen.

 In his Aug. 26 interview, Druen said that the “Governor’s Personnel Initiative? (“initiative?) was rolled out in January because of frustration in the Governor’s office regarding the slow pace in the cabinet of placing Fletcher Republicans into merit system positions.  Druen said that in April Nighbert asked him to put together a list of merit and non-merit cabinet employees who needed to be fired.  (This list has been referred to by prosecutors as the “hit list.?)  Druen said that later that month he witnessed Nighbert hand over to Fletcher a copy of the “hit list? and that Nighbert described it as the personnel moves that needed to be done at the cabinet.  Druen said that Fletcher said, “Great,? and handed the list to Turbyfill. 

 Druen also accused Commerce Cabinet Sec. Jim Host of offering to help remove three non-merit Transportation Cabinet officials who were thought to be blocking implementation of the initiative.  Host made this offer to Druen for this alleged purpose after the launch of the initiative in January.  Druen gave Host the names of these former cabinet officials:  personnel director Otis Reed, general counsel Frank Miller, and administrative services commissioner Charles Hollan.  Reed and Hollan were later fired by Nighbert, and Miller transferred to the Office of Charitable Gaming and served as its executive director for about a month before resigning on July 18. (It is unknown whether Miller was asked to resign.)  Druen took over Hollan’s job when Hollan was fired.

 Host admitted in an interview with Alessi and Jack Brammer for their Sep. 16 story that he helped Druen rid the Transportation Cabinet of the three above-named officials.  But Host said it was because they were “not effectively helping? the cabinet – not because they were interfering with the initiative, as Druen asserted.

May 20th.  Court upholds blanket pardons.  Judge Steve Horner’s Roundup on Ky. Gov.

 The Kentucky Supreme Court issued a May 18 decision saying that Gov. Ernie Fletcher’s Aug. 29 general pardon was good for any merit system-related offenses alleged to have been committed as of the date of the pardon, and would cover any sealed indictments that the special Franklin County Grand Jury has issued if they fall into that specific date  pattern.  However, the high court said that any indictments alleging merit system crimes since Aug. 29 can still be prosecuted.  This means prosecutions against Transportation Cabinet Sec. Bill Nighbert and former cabinet official Sam Beverage may proceed even though Fletcher attempted to pardon everyone who had already committed or would commit merit system crimes.  Of course, because Fletcher didn’t pardon himself, the 4-2 court ruling has no applicability to the prosecution against him
 
Lexington lawyer Scott White made a key point in a May 15 story by Sarah Vos in The Herald-Leader.  White, a prosecutor during former Atty.-Gen. Ben Chandler’s (now a US Representative) administration from 1995-2003, noted that former or current Fletcher administration officials pardoned by Fletcher can no longer claim 5th Amendment immunity from testifying.  “Since the governor pardoned them, they have to testify,? White said.  “That’s going to be problematic.?  A number of the pardoned officials wrote e-mails that attributed certain decisions, directives, or comments to Fletcher himself.
                   
                          Definitions: Merriam-Webster Dictionary  –  public vs. private

Main Entry: 1pub•lic 
Pronunciation: ‘p&-blik
Function: adjective
Etymology: Middle English publique, from Anglo-French, from Latin publicus; akin to Latin populus people
1 a : exposed to general view : OPEN b : WELL-KNOWN, PROMINENT c : PERCEPTIBLE, MATERIAL
2 a : of, relating to, or affecting all the people or the whole area of a nation or state

b : of or relating to a government c : of, relating to, or being in the service of the community or nation
3 a : of or relating to people in general : UNIVERSAL b : GENERAL, POPULAR
4 : of or relating to business or community interests as opposed to private affairs : SOCIAL
5 : devoted to the general or national welfare : HUMANITARIAN
6 a : accessible to or shared by all members of the community b : capitalized in shares that can be freely traded on the open market — often used with go
7 : supported by public funds and private contributions rather than by income from commercials

Main Entry: 1pri•vate 
Pronunciation: ‘prI-v&t
Function: adjective
Etymology: Middle English privat, from Anglo-French, from Latin privatus, from past participle of privare to deprive, release, from privus private, individual; probably akin to Latin pro for, in front of — more at FOR
1 a : intended for or restricted to the use of a particular person, group, or class b : belonging to or concerning an individual person, company, or interest c (1) : restricted to the individual or arising independently of others 

(2) : carried on by the individual independently of the usual institutions
; also : being educated by independent study or a tutor or in a private school 

d : not general in effect e : of, relating to, or receiving hospital service in which the patient has more privileges than a semiprivate or ward patient
2 a (1) : not holding public office or employment (2) : not related to one’s official position : PERSONAL 

b : being a private
3 a : withdrawn from company or observation : SEQUESTERED b : not known or intended to be known publicly : SECRET c : preferring to keep personal affairs to oneself : valuing privacy highly d : unsuitable for public use or display
4 : not having shares that can be freely traded on the open market
- pri•vate•ly adverb
- pri•vate•ness noun 

ADVISORY OPINION 06-16, Executive Branch Ethics Commission, June 16, 2006

Re: Does a conflict exist for the Attorney General if the Office of the Attorney General is involved in the investigation or prosecution of the Governor?

Decision: No, unless the Attorney General becomes a candidate for the office of governor.

“…the Commission believes that due to the Office of the Attorney General’s involvement to date in the investigation and prosecution of merit hiring violations involving the current Governor, a potential conflict of interest will present itself should the Attorney General at any time file as a candidate in the 2007 gubernatorial election, regardless of whether the investigation and prosecution have been completed, or whether the current Governor remains a candidate in that election. 

One cannot erase a possible conflict of interest by merely completing the action that would have made the matter a conflict in the first place.  Nor would the possible conflict disappear if the action, once completed, was then used for the purpose of furthering one’s own personal or private interest over one’s duties in the public interest.

 Should the Governor withdraw as a candidate in the 2007 gubernatorial election as the result of his investigation and prosecution by the Office of the Attorney General, the Attorney General should continue to take care not to take any action that will make it appear that he used his public office to obtain private benefits.

Becoming a candidate for governor after the sitting Governor withdrew as a candidate due to actions taken by the Office of the Attorney General could lead, at the very least, to the perception that a conflict of interest existed all along.?

ADVISORY OPINION 06-3, Executive Branch Ethics Commission, April 10, 2006 

Re:  Are Commonwealth’s attorneys subject to the provisions of KRS Chapter 11A?

Decision: Yes, except when covered by KRS Chapter 15.733.  

“County attorneys “are not, in most of their duties, “accountable to the executive branch of state government.?

The Commonwealth’s attorney program is made up of 57 elected Commonwealth’s attorneys and their staffs.  Commonwealth’s attorneys and their staffs are employees of the Unified Prosecutorial System (“UPS?), as are county attorneys and their staffs. 

Pursuant to KRS 15.700, which established the UPS in order to “maintain uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the Commonwealth,? the Attorney General is the chief prosecutor of the Commonwealth.  The Prosecutors Advisory Council (“PAC?) was established in KRS 15.705 to administer the UPS and is administratively attached to the Office of the Attorney General (“OAG?). 

The Attorney General, by statute, is chairman of the PAC, which is responsible for, but not limited to, the preparation of the budget of the UPS as well as its continuing legal education and program development.  Within the OAG is the Prosecutors Advisory Council Services Division, which performs staff services for the PAC and UPS. 

The compensation of each Commonwealth’s attorney and his staff is paid out of  the State Treasury pursuant to KRS 15.755.  Unlike the county attorneys, who act as legal advisers to the county in which they serve as well as criminal prosecutors under the UPS, the Commonwealth’s attorneys serve in their official capacities within their judicial circuits as criminal prosecutors only, so they have no duties outside of those that fall within the mission of the UPS.

While KRS 18A.115(1)(v) excepts Commonwealth’s attorneys and their respective appointees from the classified service, this fact is irrelevant in determining whether Commonwealth’s attorneys are subject to the Code.  Numerous individuals and positions excepted from the classified service by KRS 18A.115(1) are public servants as defined in KRS 11A.010(9) and therefore subject to the Code, including, for example, the Governor, cabinet secretaries, and division directors.  Furthermore, since KRS 18A.115(1) states in its opening paragraph that:  “The classified service . . . shall comprise all positions in the state service now existing or hereafter established, except the following. . .?, it is clear that all the positions listed therein, including the Commonwealth’s attorneys, while not within the merit system, are still considered to be in state service.?
 
ADVISORY OPINION 03-5, Executive Branch Ethics Commission, February 13, 2003

RE: Does investigation of political opponent create an actual conflict of interest for Attorney General?

Decision: Yes, and the Attorney General must remove himself from any involvement regarding the investigation.

This opinion is in response to your January 23, 2003, request for an opinion from the Executive Branch Ethics Commission (the “Commission”). This matter was reviewed at the February 13, 2003, meeting of the Commission and the following opinion is issued.

You state the relevant facts as follows. The Attorney General has filed as a candidate for governor. Another individual who has filed as a candidate for governor was previously the Chief Executive Officer (“CEO”) of a corporation whose successor corporation has been under criminal investigation by the Attorney General’s office for two years, and the other candidate is currently the CEO of the corporate landlord of the successor corporation.

You ask:

Must the Attorney General close his office’s investigation and refer the case to another agency, or must the Attorney General resign his position in order to prevent conflicts of interest during the campaign under KRS 11A.020(1) which provides in part:

(1) No public servant, by himself or through others, shall knowingly:
(a) Use or attempt to use his influence in any matter which involves a substantial conflict between his personal or private interest and his duties in the public interest;
You also ask if it makes any difference if no other single agency, federal or state, has jurisdiction to complete and prosecute the criminal actions under investigation.
As a public servant, the Attorney General must abide by the provisions of the Executive Branch Code of Ethics (the “Ethics Code”) set forth at KRS 11A. The conflict of interest provision cited above states clearly that no public servant can use his influence in a matter that involves a substantial conflict between his private interest (in this case, the Attorney General’s candidacy for political office) and his duties in the public interest (in this case, the Attorney General’s mandate to enforce the law in Kentucky).
It does appear that a potential conflict of interest exists in this matter, and the Attorney General must take steps to ensure that he has no part in the ongoing investigation, and that he receives no communications from employees conducting the investigation. The Commission believes if the Office of the Attorney General continues to investigate this matter, unspoken or implied pressure may exist or appear to exist for the employees conducting the investigation.
In order for the Attorney General to remove himself from being in a position that would allow him to misuse his influence, or give an appearance that he might be misusing his influence or that his influence may be creating implied pressure, the Commission believes that the Office of the Attorney General should remove itself from the investigation until after the primary election, or refer the case to another law enforcement agency, not under the authority of the Office of the Attorney General, that could appropriately investigate and prosecute the case. If no agency has jurisdiction to prosecute the case, the Commission believes that the case could be returned to the Office of the Attorney General once the election is over.

                               Pardon Powers of the Governor

Kentucky Constitution – Section 77
________________________________________
Power of Governor to remit fines and forfeitures, grant reprieves and pardons — No power to remit fees.
________________________________________
  He shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons, except in case of impeachment, and he shall file with each application therefor a statement of the reasons for his decision thereon, which application and statement shall always be open to public inspection.
 In cases of treason, he shall have power to grant reprieves until the end of the next session of the General Assembly, in which the power of pardoning shall be vested; but he shall have no power to remit the fees of the Clerk, Sheriff or Commonwealth’s Attorney in penal or criminal cases.
Text as Ratified on: August 3, 1891

________________________________________

 

 

Retiring judges have looser tongues, can make news and commentary

Thursday, December 21st, 2006

The following article was recently published by Al Cross on  www.ruraljournalism.org blog.

On the bench, judges are obliged to suppress their personal beliefs and apply the laws passed by the legislative branch and enforced by the executive. Especially at the trial-court level, judges are supposed to keep mum about the policy decisions made by lawmakers.

But when judges leave the bench, they become free to make their views known, so interviewing them can make news or good commentary.

Nick Cenegy, a Knight Fellow of Community Journalism at the University of Alabama’s master’s degree program at The Anniston Star, interviewed retiring Circuit Judge Sam Monk and found that he no longer supported the death penalty, though in 28 years on the bench “He has sentenced six people to death and has sent at least as many to be locked away for a lifetime,” Cenegy wrote in a Sunday column.

Cenegy continued: “Monk, in part, is guided by his religion.

Any New Testament Christian should have a few fundamental issues with a society murdering one of its own, he says. . . . Still, more than 70 percent of Alabamians strongly support the death penalty. Perhaps they find no conflict with their religion — or choose to ignore it. Through their comments, Monk and others [appellate judges quoted in the column] reveal that they are tired of carrying the cross for an imperfect system of revenge by death. Even if it’s the small cross: the syringe” of lethal injection.

Cenegy makes plainer his own opposition to capital punishment in a riveting piece about the judge’s last case, a double murder in which Monk gave a death sentence. Click here to read it. Click here to read the column, and here for a transcript of Cenegy’s interview with Monk. Access to the Star’s site requires a subscription, but a free, one-day pass is available

LawReader is always looking for articles and news relating to the law and the courts. We particularly like items written by judges.  Please send your submissions to Firstjudge@aol.com

 

Rep. Gray: Make divorce harder. Rep. Stine: just outlaw all divorces.

Thursday, December 21st, 2006

    Representative J.R. Gray has introduced legislation to be considered by the 2007 session of the Legislature that would create “covenant marriages?.  Such marriages have been adopted in several southern states at the request of Evangelical church groups.  The theory behind this legislation is that such a marriage would be harder to end.
 

The reasoning is that if a divorce is harder to obtain then there will be fewer divorces. It is also possible that this may result in fewer marriages.  Recent studies indicate that as many as 50% of U.S. couples are currently living together without benefit of marriage.
 

   Several years ago Lexington Representative Katie Stine introduced a bill to challenge those who felt divorces where too easy to obtain.  Her tongue-in-cheek bill, which drew no sponsors, simply outlawed all divorces. 
 

To read full test of Rep. Gray’s prefiled bill go to:  BR 409
 

Summary of bill introduced by Representative J R Gray (12/14/06)
     AN ACT relating to marriage.
     Create new sections of KRS Chapter 402 to provide the option for couples to enter into a covenant marriage; provide that a couple may designate a covenant marriage when applying for a marriage license or after marriage; require authorized counseling before entering a covenant marriage; define “authorized counseling”; establish the procedure for declaring a covenant marriage; require marriage license and certificate to indicate if the marriage is a covenant marriage; provide limited grounds for dissolution, legal separation, or divorce from bed and board, including a requirement of authorized counseling before divorce in a covenant marriage; require the Human Resources Coordinating Commission of Kentucky to develop an informational pamphlet regarding covenant marriage; amend KRS 402.100, 402.230, 403.025, 403.044, 403.110, 403.140, 403.150, and 403.170 to conform.
 

 

Attorney Thomas Clay: Fletcher dodging discovery in U.S. District Court civil action and should be deposed

Thursday, December 21st, 2006

Plaintiffs attorney Thomas Clay wrote the following letter-to-the editor of the Louisville Courier-Journal. The letter was published Dec. 21, 2006.


 With regards to the Governor’s lawyer, M. Stephen Pitt, suggesting that The Courier’s editorial board owes the Governor an apology for its criticism of his dodging a subpoena, I think not.
 The Governor’s conduct is just the latest example of avoiding any forum where he can be examined under oath about his conduct. He declined to testify at the grand jury.
Mike Duncan’s counsel had attempted to serve a subpoena on the Governor at the Capitol. The Franklin County deputy sheriff left the subpoena with a staff member.
Efforts to get the Governor’s office to acknowledge that this service was effective were unfruitful. (In order to be “effective,” “Service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed.” (CR 45.02(1))).
 In the absence of any acknowledgement, I asked the Jefferson County sheriff to serve the Governor in Louisville. Deputy sheriffs did so discreetly. Nobody from Duncan’s camp “tipped off’ the media.
 The Governor’s lawyer, James L. Deckard, responded to the subpoena in a letter dated December 11, 2006: “In fact, the Governor is out of state on travel through Wednesday [the date of the hearing] and is unavailable to attend.”
 This statement is a — (this space intentionally left blank). Media representatives from three separate organizations (not The Courier) told me they had checked the Governor’s calendar, and he was, in fact, going to be in the state on the morning of the hearing.
 Pitt is also wrong when he states “… [I]n the end, the hearing office essentially forced the Duncan team to concede as much” (that subpoenaing of the Governor was a publicity stunt.) Wrong.
 First of all, the hearing officer did not force the Duncan team to admit anything. Second, the Duncan team did have compelling reasons to hear the Governor’s explanation about the “hit list.”
 It was only when the testimony of Transportation Secretary William Nighbert was concluded that we made the decision not to seek the Governor’s testimony at the personnel board.
 Suffice it to say that there were credibility issues developed through Nighbert’s testimony.
 First, he testified that he never told Transportation Cabinet Inspector  General David Ray that the Governor had any involvement in Duncan’s firing.
 This statement is a —. Ray testified unequivocally that Nighbert told Ray on May 11, 2005, during a conversation in which Ray was challenging the decision to fire Duncan, “It’s not what I [Nighbert] say, but what the Governor says.” This conversation was quoted in an unprecedented letter David Ray sent to the Governor protesting Duncan’s firing.
 This testimony from David Ray also points out another — in Nighbert’s testimony. Nighbert testified that he reached the decision to fire Duncan on May 12, 2005, the day before Duncan’s actual firing on May 13, 2005.
 In fact, the decision to fire Duncan was reached in April, 2005, and the decision was communicated to David Ray by Cabinet Deputy Secretary Jim Adams, who told Ray that Duncan “had to go” because Duncan had supported Ben Chandler in the election for Governor.
 David Ray attended a meeting on May 4, 2005, with Adams and Commissioner Druen. Adams again informed Ray that Duncan had to go because Duncan had campaigned for and contributed several thousand dollars to the Chandler campaign. Both Adams and Druen were conspicuous by their absence as witnesses for the Cabinet. Their absence caused Ray’s testimony to be undisputed.
 The main reason Nighbert gave for firing Duncan had to do with an OIG investigation into DOT change orders. At a point in the investigation, Nighbert stated his desire that some low level DOT employees be disciplined because they had violated DOT policies and procedures.
 Duncan disagreed and stated that DOT higher-ups were responsible for the violations and that the lower level employees were simply following orders. This disagreement led Nighbert to conclude that Duncan should be fired for “poor performance.”
 Nighbert never discussed the issue with Duncan’s supervisor, IG David Ray. In fact, Ray repeatedly told cabinet officials and the Governor that Duncan was an excellent employee.
 Duncan is the second individual listed under “Pending Action” on the “hit list,” dated April 18, 2005. His entry is as follows:
 ”Mike Duncan, Deputy Inspector General, Office of Inspector General.
“Employed by Chandler for 8 years; Office of Attorney General
“Democrat
“Chandler $2,000
“No Reversion Rights
“On probation; June
“Recommendation: Termination”
 Nighbert denied any knowledge of the “hit list.” This statement is a — Dan Druen is quoted in today’s Lexington Herald-Leader:
 ”In a statement to the Herald-Leader, Druen ended several months of silence regarding his role is, alleged violations of the state merit hiring system, which is designed to shield rank-and-file workers from political persecution.
 ”`I am outraged to have been singled out in the investigation of the governor and his administration,’ Druen said. `But one thing is for certain, the Ethics Commission general counsel got it right when he said whatever happened did not happen in a vacuum. In fact, everything I did was pursuant to the directive from my supervisors, top to bottom, including the Governor, in advancement of the very initiative that carried his name.’”
 When Secretary Nighbert was asked why he invoked his right to remain silent in front of the grand jury, he responded that he acted on advice of counsel, and he added that he had issues with the fairness of the grand jury and the judge, but that he was convinced the presiding judge in the personnel board proceeding was “fair.”
 The Secretary was then presented with a motion filed by the Transportation Cabinet’s lawyer, on Jan. 26, 2006, to disqualify the presiding hearing officer in which the Cabinet’s lawyer stated:
 ”Recent prehearing decisions of Mr. Ryan have caused theAppellee to be concerned regarding the fairness of this proceeding.”
 The Cabinet’s motion to disqualify was denied.
 The conduct of high-ranking Transportation officials was further called into question by the testimony of Mark Williams, Commissioner, Department of Highways. Williams appeared before the grand jury on Aug. 16, 2005, and admitted in his testimony cabinet officials concealed personnel records.
 ”MDW: .. .the personnel paperwork that …. .uh for some of the pending merit positions with the Department of Highways. So uh. . .me having my own suspicions about what the KBI was up to, uh. .and also knowing that this was information that.. .that I needed to have you know was. . .was wanting to have an opportunity to deal uh. . .with in my office uh.. .and wanting to … …. .at least in my feeling protect the integrity of that information, I went ahead and I accepted it.
 ”SCS:[Assistant Attorney General Scoff Crawford Sutherland]: Did you.. .did you have.. .did Mr. Druen indicate to you that he wanted you to keep those documents because he did not want them to be seized by the KBI?
 ”MDW: He didn’t say that in those words. I … I … I … felt like uh …
“SCS: Did he say something to … did he say something that led you to believe that the reason he was giving you those documents was to keep the KBI from getting them?
“MDW: I think that ….that was somewhat implied.
 ”SCS: Was that your understanding?
 ”MDW: That would … that would probably be, yeah, I would … I was … it was a combination of uh … two things, it was … .it was … it was … uh… uh … my understanding that the KBI may come in and … and … and … and as they did, took everything from Dan Druen’s office secretary….”
 Given these —s, we made the decision that the governor’s testimony would be unnecessary.
 This recitation of the evidence before the personnel board is indicative, not exhaustive.
Mr. Deckard’s letter also states, “[W]e stand ready to assist to bring this matter to a prompt conclusion,” if the hearing officer determines information from the governor is necessary.
 This position stands in marked contrast to Mr. Pitt’s unwillingness to provide dates for the governor to be deposed in Duncan’s case pending in U.S. District Court in Frankfort where Duncan is challenging his dismissal as well as naming the governor personally for allegedly defamatory statements Fletcher made about Duncan.
 An e-mail to Mr. Pitt on Sept. 7, 2006, requesting dates for the Governor’s deposition has not produced any results.
 So what do you say; Mr. Pitt, how about some deposition dates for the Governor?
 THOMAS E. CLAY, P.S.C.
Louisville 40202
The writer is a lawyer for Mike Duncan — Editor.

Chief Justice Lambert: Mistakes possible in records purge. Promises review.

Thursday, December 21st, 2006

Acknowledging there “may well have been significant mistakes made,” Kentucky Chief Justice Joseph Lambert has organized a group of judges and court officials to look into the recent purging of misdemeanor records 5 years old or older.
 Lambert said he approved the document-retention policy in 2005 but did not hear from anyone about the recent purging until earlier this month. He said he doesn’t know who specifically ordered the destruction of the Jefferson County records and if proper procedures were followed.

State court officials say the records were destroyed based on a statewide document-retention policy amended last year to include electronic records. Previously, only paper court files were destroyed after five years as part of a policy designed to free space and save money on storage costs.
 In November, the Administrative Office of the Courts hauled away for destruction all microfilm and microfiche records in Jefferson County dating from before 2001.
Prosecutors and judges said that endangered the public and undercut the prosecution of spouse abusers and other offenders. Misdemeanor records are frequently useful to prosecutors at sentencing and probation hearings.
 ”We will get to the bottom of it,” Lambert said. He said that he would fix any problems.

Fayette Jury Award $1.7 million. Hospital left sponge in woman.

Thursday, December 21st, 2006

   Hospital defense lawyers claim that juries in Fayette rarely award plaintiffs verdicts.  That practice was overcome this week in Lexington by attorney J. Robert Stansbury of London.
 

   The jury placed blame on two nurses and a technical assistant employed by Central Baptist Hospital, who were reported to have advised the surgeon that all sponges were accounted for before he closed the patients incision after a hysterectomy.
 

 After the surgery the woman, Helen Hammons, returned to the surgeon with complaints of abdominal pain.  He discovered and disclosed the presence of the surgical sponge.  The surgeon was relieved of liability.
 

   The jury awarded $1.5 million for pain and suffering, $48,165 in medical expenses, and $1,125 for lost wages.  The woman’s husband was also awarded $200 for loss of consortium.
 

   The rare verdict against a hospital in Fayette County will undoubtedly be considered in future malpractice claim mediations and settlement negotiations in Fayette county. 

Tort Reform law ruled unconstitutional in Oklahoma medical malpractice case.

Wednesday, December 20th, 2006

LawReader Editor: The reasoning behind this interesting ruling may have application in other states.

by Mark A. Hofmann
 
OKLAHOMA CITY—The Oklahoma Supreme Court has overturned a 2003 medical malpractice liability reform law that required plaintiffs to present expert opinion supporting their claims at the time they file a lawsuit.
In its Tuesday decision in Monica B. Zeier vs. Zimmer Inc. and Theron S. Nichols, M.D., the court ruled 8-to-1 that the requirement violated the state constitution.
The case involved Ms. Zeier’s claim that Dr. Nichols used the wrong medical device during her knee replacement surgery. A trial court, noting that Ms. Zeier had not filed the expert opinion to back her complaint, dismissed the case.
The state’s high court, however, disagreed. “Treating medical malpractice plaintiffs with rules inapplicable to all other negligence claimants interjects a degree of arbitrariness which sabotages access to the courts,” Chief Justice Joseph M. Watt wrote for the Oklahoma court.
The majority held that requiring a plaintiff to seek such expert opinion could cost the plaintiff thousands of dollars, thus creating “an unconstitutional barrier to the access of the courts guaranteed” by the state constitution.
The case was remanded for a hearing on the claims.
________________________________________
Monica B. Zeier vs. Zimmer Inc. and Theron S. Nichols, M.D., Oklahoma Supreme Court, No. 102472. Decided Dec. 19, 2006.

 

LawReader now allows you to search millions of newspaper articles..with no extra charges.

Wednesday, December 20th, 2006

    LawReader now allows you to search millions of Newspaper articles.

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Fletcher expands Melcher Ruling of Gubernatorial Immunity from Prosecution while in office, to include Immunity from all Jurisdiction of the courts.

Tuesday, December 19th, 2006

Editorial by LawReader Senior Editor Stan Billingsley 

 The Governor’s personal attorney,  Steve Pitt,  has written a letter-to-the-editor in which he suggests that the Gov. was too busy to comply with a subpoena issued at the request of  Mike Duncan in his case before the Ky. Personnel Board. Pitt suggests that the subpoena was nothing but a publicity stunt and the testify of Gov. Fletcher wasn’t necessary to Duncan’s case.

This argument suggests that the Governor can unilaterally determine if his testimony is relevant and probative.  We know of no rule of procedure or rule of evidence that allows the witness the prerogative to determine if he should or should not appear at a hearing or trial to which he has been subpoenaed.

  The proper procedure for a witness to avoid a personal appearance is to petition for relief from the Court.  The court pursuant to CR 45.05 has broad discretion to allow a witness to submit to a deposition or to order the witness to appear in person before the tribunal.  See Civil Rule 45.05:

CR 45.05 SUBPOENA FOR A HEARING OR TRIAL; PERSONAL ATTENDANCE     
     (1) At the request of any party, subpoenas for attendance at a hearing or trial shall be issued by the clerk of the court in which the action is pending, and such a subpoena may be served at any place within the state.
     (2) Subject to the provisions of paragraph (3) of this rule a witness whose deposition might be used under Rule 32.01(c) shall not be compelled to appear in court for oral examination, unless he failed, when duly subpoenaed, to give his deposition.
     (3) Upon the affidavit of a party or his attorney that the testimony of a witness is important, and that the just and proper effect of his testimony can not in a reasonable degree be obtained without oral examination in court, the court may, in its discretion, order the personal attendance of the witness, although such witness may otherwise be exempt from personal attendance.  [Amended eff. 1-1-78; prior amendments eff. 10-1-71, 4-1-63; adopted eff. 7-1-53]

   The courts have held that the courts may compel the appearance of witnesses, and may grant relief from such appearances.

 See: Campbell v. Schroering, 763 S.W.2d 145 (Ky.App. 12/22/1988)   “it is essential that Courts be able to compel the appearance and testimony of witnesses.” We also agree that courts must be vested with a great deal of discretion to achieve that end. See CR 45.06…?.

    We would suggest that the Governor and his legal advisors had at their disposal a procedure under the Civil Rules to seek relief from the subpoena and to prevent the personal appearance of the Governor at the Personnel Board hearing if his absence was justified. 

Apparently, there was no such motion filed with the Personnel Board.  The Governor just unilaterally chose not to show up at the hearing.  Forgive me but as a former Judge, that makes the hair stands up on the back of my neck.

Any subpoena issued, is issued in the name of the Court.  If someone elects to ignore the power of the Court to summon a witness, then the court is under a duty to draw a line in the sand, and make it very clear that one thing that no party or witness can do, is to ignore the courts orders.   This is not due to arrogance of the court, it is because the very essence of the right to due process requires the right of the court to enforce its own orders.

We are without sufficient information to opine as to whether or not the testimony sought by Mike Duncan from Governor Fletcher was important to his case, was relevant, was privileged, or probative. 

We don’t know if there was a necessity for the personal appearance of the Governor, or whether a deposition would have sufficed. We don’t know if this was a publicity stunt as alleged by Mr. Pitt.  All of these issues are reserved to the court to determine, but they do not explain or justify the failure of the Governor to appear as subpoened.

No citizen and no elected official of this state has the power to simply ignore a subpoena. If they do so, it is at their own peril.

If the court allows this contempt to go unnoticed then a dangerous precedent will be created.  And once this precedent of an executive officer’s right to declare himself immune from appearance before the courts is established, where will it end? 

Does this new doctrine also apply to the Lt. Governor? The Attorney General?  The Auditor?   Legislators? Mayors? City Councilmen?  Where does this end?

 Mr. Pitt is rightfully recognized as a very good attorney, but in his letter-to-the editor he doesn’t cite any law to support an argument that the Governor is not subject to the jurisdiction of the courts or to the Rules of Civil Procedure. 

Perhaps we have missed something in the Constitution, the KRS, the Rules or in some Court ruling that says a governor is not subject to the jurisdiction of the courts. 

Perhaps there is a secret law somewhere that is only known to a select few that says the Governor is above the law.  Please Mr. Pitt, please Mr. Deckard, share that secret law with the public.

    The closest judicial authority for legal justification of the claim that a Governor is not subject to the jurisdiction of the courts is found only in the Melcher decision that held that a Governor (i.e. Gov. Fletcher) could not be prosecuted for a violation of law while he was in office.

Judge Melcher, by creating the concept of total immunity for the Governor from prosecution while in office, has opened the door for this new expansion of the Governor’s powers.  The Governor by his failure to appear, is suggesting that he is immune from following any orders of the courts, and ergo is immune from the contempt powers of the court.
 
    One must scratch their head to try to understand why the Governor did not handle this in the normal fashion and petition for relief from the subpoena, offer to sit for a deposition, or move to quash the subpoena entirely.  All of these options were available to him, but now he has needlessly challenged the court’s authority to subpoena him before a hearing or trial.
 
 Will the court that issued the subpoena surrender to the governor’s challenge?
                                               **********   
The following letter-to-the-editor of the Louisville Courier-Journal published Dec. 19, 2006 was written by Hon. M. Stephen Pitt, one of Gov. Fletcher’s personal lawyers.

Subpoena of Fletcher a ‘stunt,’ criticism a gratuitous slap

The Courier-Journal owes Gov. Ernie Fletcher an apology. Its Dec. 13 editorial “Time for the whole truth ” was another gratuitous and unnecessary slap at the Commonwealth’s chief executive.
While I respect the newspaper’s right to state its differences with those whose politics and policies it does not agree, The Courier-Journal’s failure to either ascertain or state the true facts in this editorial is inexcusable.
In criticizing Fletcher for refusing to personally appear, on short notice, at a state Personnel Board hearing scheduled for Dec. 13, you did not take the time to point out that former Kentucky Transportation Cabinet employee Mike Duncan had already completed his proof before the state Personnel Board several months ago. On Oct. 5, the Personnel Board set Dec. 13 as the date for the Transportation Cabinet to make its defense before the Board’s hearing officer. It was not until Friday, Dec. 8 — over two months later — that Duncan’s attorneys had Fletcher served with a subpoena to testify on Wednesday, Dec. 13. (In reality, the subpoena was for Dec. 13, 2007, but let’s not quibble over details.)
Even then, that testimony would have been only in the form of “rebuttal”. In other words, Duncan’s lawyers subpoenaed Fletcher to “rebut” the testimony that they anticipated the lawyers for the Transportation Cabinet would introduce on Dec. 13 as part of their case. Setting aside that it was unlikely Fletcher would have provided testimony materially contradicting the Transportation Cabinet’s witnesses, Duncan and his counsel had been aware of the Dec. 13 hearing date for many weeks and nonetheless waited until the virtual eve of the hearing to subpoena the Governor. While I do not question, for these purposes, Duncan’s attorney’s quoted statement that the 11th-hour subpoena was not intended as a political stunt, the fact nevertheless remains that the press were apparently somehow tipped off prior to the subpoena being served. By the time Fletcher was served, his schedule was full for Dec. 11-13. Despite the late subpoena and the Governor’s full schedule of state business, you stated in your editorial that “[T]he Governor could have rearranged his itinerary [to testify at the Duncan hearing]. He decided he had more important things to do.”
Indeed Fletcher does have more important things to do than testify at state agency hearings. Scores — indeed probably hundreds — of state agency hearings take place annually. It is virtually unprecedented for the Commonwealth’s Governor to testify at such hearings. Most objective thinkers would agree that it would be bad precedent to expect the state’s chief executive, be that person Fletcher or someone else, to be at the beck and call of disgruntled state employees pursuing Personnel Board appeals. In the very rare instance where a governor’s testimony might legitimately be needed for such a hearing, the law has long relieved a governor (and various other public officials and judges, along with others such as practicing attorneys, physicians and bank cashiers and tellers) from having to appear personally and allows them to provide their testimony by deposition rather than personally appearing to testify.
Yes, Fletcher did have more important things to do than sit around on Dec. 13 waiting to be called by Duncan as a possible rebuttal witness. First, he was in New York meeting with three credit-rating agencies about the level of Kentucky debt and its affect on the Commonwealth’s bond rating, as reported in your news article of Dec. 14, “Higher-Ed Projects Can Be Revived.” Then, he arrived back in Kentucky in time for the Dec. 13 — the same date as the Duncan hearing — meeting of the state’s Strategic Committee on Postsecondary Education. As a result of Fletcher’s trip to New York and subsequent meeting with the Strategic Committee, the Governor was in position to announce on Dec. 13 that Kentucky will likely be able to afford to restore some previously vetoed higher-education projects due to a substantial improvement in the state’s debt ratio.
If The Courier-Journal truly believes that “the Governor could have rearranged his itinerary” and that he dodged the agency hearing because “he decided he had more important things to do [than to testify in rebuttal at the Duncan hearing],” then the newspaper’s editorial judgment and credibility are completely shot. I believe it goes without saying that most Kentuckians would agree that Fletcher should have adhered to his official schedule, gone to New York to meet with the three bonding agencies, come back and met with the Strategic Committee and been in position to report to the people on the financing of important higher-education projects rather than postpone those important functions in deference to the lost-minute whim of a disgruntled ex-state employee who did not, after all, have any reason to call the Governor as a witness.
That brings me to the final fact that undermines and discredits The Courier-Journal editorial. Duncan’s personnel board hearing did resume and take place on Dec. 13. As reported in the Lexington Herald-Leader in a news article on Dec. 14 (“Nighbert Claims Sole Responsibility for Firing Duncan”), but not in The Courier-Journal, the Transportation Cabinet put on its evidence as to why Duncan was terminated as a probationary state employee by the Cabinet. In his testimony, Cabinet secretary Bill Nighbert testified that Fletcher had nothing to do with the Duncan termination. According to the Herald-Leader, Nighbert said, “I never had a discussion with the Governor, not only about Mr. Duncan, but any other merit employee.” While I was not at Duncan’s Dec. 13 hearing, an attorney who was there told me that the hearing officer asked Duncan’s lawyers at the conclusion of the hearing (and I paraphrase): “Based on what I heard today, the Governor wasn’t involved in the Duncan termination. Are you still going to try to call the Governor as a rebuttal witness?” Duncan’s lawyers apparently then answered “No.” That is confirmed in the Herald-Leader article, where it was reported: “Duncan’s attorneys closed their case yesterday [Dec. 13] without seeking the testimony of Fletcher, who they had previously subpoenaed.”
In the final analysis, the ancient put-down of Roman philosopher/poet Horace, applies: “The Mountains [were] in labor and a ridiculous mouse [was] brought forth.” For all of your partisan bluster and critical pontificating, Fletcher was not needed at the Duncan agency hearing and made the wise choice for the people of Kentucky to tend to important official matters that did need his presence and attention. What appears patently clear is that the 11th hour subpoenaing of the Governor by Duncan was, at least in effect if not intent, only a public relations stunt, that Duncan had no legitimate reason to call Fletcher as a witness and that, in the end, the hearing officer essentially forced the Duncan legal team to concede as much. The Courier-Journal editorial writers should be embarrassed for having fallen for the Duncan subpoena and having editorially adjudged that the Governor’s time would be better spent cooling his heels on Dec. 13 and awaiting a call to personally testify that would never come rather than tending to the Commonwealth’s important financial business.
Come on Courier-Journal, how about apologizing to Fletcher and to your readers for your shoddy editorializing?

M. STEPHEN PITT
Louisville 40222

P.S. As a matter of full disclosure, I represent Governor Fletcher as one of his personal counsel.
 

Courier Journal editorializes against AOC record destruction policy

Tuesday, December 19th, 2006

The Courier-Journal Editorial staff joins in the negative comments about AOCs policy of destroying misdemeanor records after five years.   

 

Erasing the Past   – Courier Journal Editorial, Dec. 19, 2006.

 

Your sins will find you out. But if you were convicted of a misdemeanor in Kentucky five or more years ago, nobody will know. Your record is being expunged. 

Send “Thank you” cards to Chief Justice Joseph Lambert, who is behind a file-destruction policy that will hide the criminal records of numerous offenders. 

This is the same Chief Justice Lambert who intervened gratuitously in the Ernie Fletcher merit system scandal by attaching a footnote to an unrelated case, appearing to coach the Governor’s legal defense. 

Kentucky‘s high court, having just welcomed several new members, has an opportunity to review the kind of leadership the Chief Justice is providing. The state’s judicial system deserves better. 

The purge of records has outraged Jefferson County officials, among others. They say it jeopardizes the public, undercuts prosecutions and frustrates efforts to keep guns away from spouse abusers. 

It could hand some criminals a Keep Out of Jail Free card by obliterating their pasts. It also prevents the innocent from showing that charges against them were dropped, or that they were acquitted. 

It creates a nightmare for operators of nursing homes and day care centers. Without such records, they can’t do appropriate background checks on prospective employees. 

Files being carried out the door by “six or seven burly men,” as Interim Jefferson Circuit Clerk Michael Losavio put it, is a staple of certain noirish films and occasional real-life corporate dramas. But at Mr. Lambert’s instigation, these files are being removed in order to eliminate them, not to preserve them. 

Since 1977, paper misdemeanor files have been destroyed after a period of time to save on storage space and cost, even though only those records are considered official. Now the microfiche and microfilm records of them are being tossed, too. 

Those who will be hurt by this policy were not consulted. But speaking for the Administrative Office of the Courts, Scott Furkin explained, airily, “This is a Court of Justice policy … and we respect the separation of powers around here.” 

Here we have the classic bureaucratic fallacy: mistaking public responsibility for royal prerogative — believing that the public’s property belongs to its custodians. 

It’s the file-destruction policy that should be expunged 

 

TIME magazines 2006 Person of the Year: YOU (and LawReader)

Monday, December 18th, 2006

If you are reading this, you are TIME magazines Person of the Year.  This year you (and LawReader) beat out presidents, dictators, and terrorists and won the Person of the Year award.
Time has granted this award to all those who use the internet, and you and LawReader are certainly in that category of winners.
After much speculation about who would be named TIME magazine’s 2006 Person of the Year, the answer is both brilliant and obvious.  The Person of the Year — the person who has had the most impact on world events — is you
The editors of TIME explain:
To be sure, there are individuals we could blame for the many painful and disturbing things that happened in 2006. … But look at 2006 through a different lens and you’ll see another story, one that isn’t about conflict or great men. It’s a story about community and collaboration on a scale never seen before. … The tool that makes this possible is the World Wide Web. …  The new Web is a very different thing. It’s a tool for bringing together the small contributions of millions of people and making them matter. Silicon Valley consultants call it Web 2.0, as if it were a new version of some old software. But it’s really a revolution.
And we are so ready for it. We’re ready to balance our diet of predigested news with raw feeds from Baghdad and Boston and Beijing. … And we didn’t just watch, we also worked. Like crazy. We made Facebook profiles and Second Life avatars and reviewed books at Amazon and recorded podcasts. We blogged about our candidates losing and wrote songs about getting dumped. We camcordered bombing runs and built open-source software.

Who are these people? Seriously, who actually sits down after a long day at work and says, I’m not going to watch Lost tonight. I’m going to turn on my computer … Who has that time and that energy and that passion?
The answer is, you do. And for seizing the reins of the global media, for founding and framing the new digital democracy, for working for nothing and beating the pros at their own game, TIME’s Person of the Year for 2006 is you.
 

New spam e-mail blocker will work for some.

Monday, December 18th, 2006

LawReader has learned of a new software program that blocks spam mail.  When an e-mail is sent to you for the first time, the e-mail is blocked until the sender responds to a “challenge? where they have to enter a response.  This challenge culls out mass mailings and automatic spam mailings.

 

On subsequent e-mails being sent from the sender who has successfully complied with the “challenge?, their address is remembered and no further challenges are presented.

 

More information about this program can be found at:  http://www.spamarrest.com/

 

They offer a 30 day free trial.  After that the monthly charge is about $5.95.  The program works on AOL, Hotmail, and other e-mail programs and is compatible with Outlook.

 

As we understand their system, you can view all blocked e-mails to see who was trying to spam you.

 

This program might be useful to you.

 

Conservatives fear loss of control on 4th. U.S. Circuit Court of Appeals

Monday, December 18th, 2006

By Jerry Markon and Michael D. Shear  Washington Post

A growing list of vacancies on the federal appeals court in Richmond is heightening concern among Republicans that one of the nation’s most conservative and influential courts could soon come under moderate or even liberal control, Republicans and legal scholars say.

A number of prominent Republican appointees have left or announced plans to leave the U.S. Court of Appeals for the 4th Circuit, which has played a key role in terrorism cases and has long been known for forceful conservative rulings and judicial personalities.

Republican concerns also are fueled by the pending Democratic takeover of Congress, as several of President Bush’s 4th Circuit nominees were already bottled up in the Senate when Republicans ran it. From the GOP’s perspective, the situation now will worsen.

The 4th Circuit’s rulings affect everyone who lives, works or owns a business in the area, which encompasses Maryland, Virginia, West Virginia and the Carolinas. The court’s influence also has been widely felt nationally, and the emerging battle over it is part of a broader struggle for control of the federal judiciary.

“I think everyone is concerned because the 4th Circuit literally hangs in the balance here,” said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice, who has advised the White House on judicial nominees. “With the nature of the cases the court has been taking, especially on the terrorism issue, its direction is really critical.”

Nan Aron, president of the liberal Alliance for Justice, said the new political landscape will force Bush to work closely with Democrats “to pick fair and open-minded judges who don’t lean either to the right or the left” if he wants to get the administration’s nominees confirmed. “If there were any way to appoint judges to move the 4th Circuit in a more moderate direction, that would be beneficial to both the circuit and to the country,” she said.

The 15-member court has three vacancies, and a fourth judgeship will open in July. That would leave the bench with six Republican and five Democratic appointees by summer. In addition, one of those six Republican appointees has announced plans to take senior status as soon as a replacement can be confirmed. Senior judges receive full pay and hear cases but can take a reduced workload and are not considered active-service members of the court.

Some of the 4th Circuit’s best-known rulings, upheld by the Supreme Court, include striking down a law allowing rape victims to sue their attackers in federal court and preventing the Food and Drug Administration from regulating tobacco.

In 1999, the 4th Circuit overturned the requirement that police read suspects their rights before interrogating them. The Supreme Court later reaffirmed the Miranda rights.

During the Bush administration, the 4th Circuit has been the court of choice on national security, issuing key rulings that backed the government on the detention of enemy combatants and the prosecution of Sept. 11, 2001, conspirator Zacarias Moussaoui. The court’s conservative majority has included some of the nation’s most prominent judges, including J. Michael Luttig and J. Harvie Wilkinson III.

Jan LaRue, chief counsel for Concerned Women for America, said she and other conservatives are disappointed with Bush and Senate Republicans for not pushing harder to fill the vacancies before losing control of the Senate.

“Now all they’ve done is managed to kick the can down the road, and we’ve lost the majority,” said LaRue, whose group advocates for conservative jurists. “That circuit in the wrong hands could certainly move toward the center-left.”

White House officials blamed Senate Democrats for the logjam. “The president has nominated several highly qualified people to fill vacancies on the 4th Circuit, and the Democrats have succeeded in each instance in blocking them,” White House spokeswoman Dana M. Perino said. “We will continue to work to find highly qualified nominees and look forward to their confirmations.”

The overall struggle for control of the federal courts is expected to grow even fiercer as Democrats take charge of the Senate with a razor-thin majority, assuming that Sen. Tim Johnson (D-S.D.), who has been hospitalized in recent days, continues in office. Although some conservatives blame Bush for failing to reshape the lower courts as effectively as he has the Supreme Court, others are joining him in aiming frustration at Democrats, who have used their minority power to block 4th Circuit and other appointments.

 A victory by a Democrat in the 2008 presidential election, Republicans and legal experts say, could accelerate a philosophical shift in the court. “Imagine the people Hillary Clinton would appoint to the 4th Circuit,” said Carl Tobias, a law professor at the University of Richmond.

The first of the current 4th Circuit vacancies has lingered since 1994, when Judge J. Dickson Phillips Jr. took senior status. Bush’s nominee, U.S. District Judge Terrence W. Boyle Jr., has not overcome strong Democratic opposition.

In 2000, Judge Francis D. Murnaghan Jr. died. Bush nominated Virginia conservative Claude A. Allen in 2003, but he also was blocked by Democrats. Allen later resigned as Bush’s top domestic policy adviser and pleaded guilty to shoplifting charges. Bush has not nominated anyone else for that vacancy.

Conservatives were then shocked when Luttig resigned in May to take a top corporate job at Boeing Co. Bush has nominated no one to replace him. Chief Judge William W. Wilkins Jr., a Ronald Reagan appointee who was the first chairman of the U.S. Sentencing Commission, recently announced that he will take senior status in July, creating a fourth vacancy. The new chief judge will be Karen Williams of South Carolina, the court’s first female chief judge. She was appointed by President George H.W. Bush.

Another Republican appointee, H. Emory Widener Jr., 83, is planning to take senior status when his successor is confirmed. But Bush’s nominee, Pentagon general counsel William J. Haynes II, has drawn strong opposition from Democrats and even from Republican Sen. Lindsey O. Graham (S.C.).

Even though the 11 judges who would remain by summer are split 6-5 in favor of Republican appointees, some court observers say that Democrats might gain effective control because Judge Allyson K. Duncan often votes with the court’s moderate-to-liberal bloc. She was appointed by Bush in 2003, with strong support from John Edwards, a former Democratic senator from North Carolina and vice presidential candidate.

Yet predicting the court’s precise direction is difficult. University of Pittsburgh law professor Arthur Hellman, for example, said two Clinton appointees — judges William B. Traxler Jr. and Robert B. King — are “fairly conservative.” Hellman and some Republicans expressed surprise that Bush has not moved to fill Luttig’s seat and keeps renominating Boyle and Haynes when they couldn’t win confirmation in a Republican-led Senate.

Staff writer Peter Baker contributed to this report

KBA teleseminar on Attorney Ethics in Negotiation at 1:00 pm ET on Thurs., December 21, 2006.

Monday, December 18th, 2006

Ben Cowgill tipped us off to this one hour CLE program. 

Bill Freivogel and his colleague Doug Richmond will present a KBA teleseminar on “Attorney Ethics in Negotiation” at 1:00 pm ET on Thursday, December 21, 2006.  The telephone-based program will last 60 minutes and is approved for one hour of ethics CLE credit in Kentucky.  The registration fee for KBA members is $59 per listener. Click here for additional information (PDF document).

Ben Cowgill hosts highly useful Ethics online newsletter.

Sunday, December 17th, 2006

Attorney Ben Cowgill of Lexington hosts a nationally recognized blog focusing of legal ethics.
 

His blog goes by the name  Legal Ethics Newsletter and can be found at http://legalethics.info
 

Recently Ben has introduced a new format which we find very user friendly.  The following articles
 

were posted on the site when we reviewed it on Sunday Dec. 16, 2006.  We suggest that you
 

save this link for future use.
 

Recent Kentucky news and commentary
 

Duties upon departure: Supreme Court of Kentucky holds that KBA E-424 goes too far
Federal court finds portions of Kentucky’s Code of Judicial Conduct unconstitutional, issues injunction against Judicial Conduct Commission, Inquiry Commission and Bar Counsel
Update: Is the Kentucky Advertising Commission limiting advertisements about ComAir 5191 consistently?
Attorney General cautions lawyers about contacting families of ComAir 5191 victims
Update: How Kentucky’s Attorney Advertising Commission is now treating blogs by Kentucky lawyers
Other recent news
 

ABA Ethics Opinion addresses permissibility of restrictive covenants in retirement agreements
HALT report summarizes status of malpractice insurance disclosure rules
South Dakota holds that lawyer’s authority to settle need not be in writing
Disciplinary attorneys seek to retain ‘appearance of impropriety’ standard for judicial conduct
Mediation ethics: California court holds that joint representation is not a ground for disqualification by another party
Tennessee adopts statewide standard of care for legal malpractice
ABA holds that lawyers can ethically examine hidden ‘metadata’ in electronic documents
Chicago Tribune article discusses ethical aspects of lawyer blogs
Nevada ethics committee approves outsourcing of client data management
Other recent commentary
 

The legal profession’s continuing service to America
Law-related blogs: following in the footsteps of Thomas Jefferson
New Jersey Supreme Court stays prohibition on ‘Super Lawyer’ advertisements
Turnover continues in Office of Bar Counsel
Heavy hitters: here, there and everywhere
What law firms can learn from consumers of technology
Recent essays
 

An interview with Lincoln and Brandeis (back by popular demand)
A few comments concerning case citations, competence and computers
Law Day: A time for self-examination, not self-congratulation
Recent CLE material and research links
 

Online material regarding ethical aspects of law firm websites and weblogs
Ethical Risks of Law Firm Websites and Blogs: a CLE teleconference on Thursday, December 14th
Making sense of metadata: a mega-list of links for lawyers
Oklahoma Bar puts solo practice resources online
Links for today’s webinar on ethical aspects of legal marketing
Join me today for a free ‘webinar’ on legal ethics
Join me on Oct. 19 for the ABA Connection teleconference on the ethics of law firm marketing
April issue of Law Practice Today focuses on malpractice prevention
 

Legal System in Iraq Staggers Beneath the Weight of War

Sunday, December 17th, 2006

MICHAEL MOSS

BAGHDAD — In a cavernous room that once displayed gifts given to Saddam Hussein, eight men in yellow prison garb sat on the floor facing the wall, guarded by two American soldiers.

Among them was Abdulla Sultan Khalaf, a Ministry of Industry employee seized by American troops who said they found 10 blasting caps and 100 sticks of TNT. When his name was called, he stood, walked into a cagelike defendant’s box and peered over the wooden slats at a panel of three Iraqi judges of the central court.

The judges reviewed evidence prepared by an American military lawyer — testimony from two soldiers, photographs and a sketch of the scene.

The evidence went largely unchallenged, since Mr. Khalaf had no lawyer. The judges appointed one, but Mr. Khalaf had no chance to speak with him. Mr. Khalaf told the judges the soldiers were probably chasing a rogue nephew and denied that the explosives were his or ever in his house. “Let me examine the pictures,” he insisted. The judges ignored him. His lawyer said nothing, beyond declaring Mr. Khalaf’s innocence. The trial lasted 15 minutes.

The judges conducted six trials of similar length and depth before lunch, then deliberated for four minutes. Five defendants were found guilty; one was acquitted. “The evidence is enough,” Judge Saeb Khorsheed Ahmed said in convicting Mr. Khalaf. “Thirty years.”

The United States established the Central Criminal Court of Iraq three years ago, envisioning it as a pillar of a new democracy. But like the faltering effort to create effective Iraqi security forces, the system for detaining, charging and trying suspects has instead become another weak link in the rule of law in Iraq, according to an examination of the justice system by The New York Times.

The stakes are rising. The court has begun sentencing American-held detainees to death by hanging, 14 this year.

Almost every aspect of the judicial system is lacking, poorly serving not just detainees but also Iraqi citizens and troops trying to maintain order.

Soldiers who have little if any training in gathering evidence or sorting the guilty from the innocent are left to decide whom to detain. The military conducts reviews to decide whom to release, yet neither Iraqi detainees nor defense lawyers are allowed to attend, according to military documents and interviews.

Tens of thousands of detainees have been released by the Americans, often under political pressure from the Iraqis, but American soldiers complain they are apprehending many dangerous insurgents again and again. At the same time, detainees are held for long periods by the Americans without being charged, in some instances for as long as two years.

Even detainees who are formally charged and brought to the Iraqi court have little ability to mount a defense against evidence collected by American lawyers and soldiers. Most defense lawyers are appointed by the court and paid $15 per case. Even if they are so inclined, they are largely unable to gather evidence because of the threat of violence. One American lawyer said that in 100 cases he handled, not one defense lawyer had introduced evidence or witnesses.

The central court resembles the narrow end of a funnel crowded with suspects captured by American and Iraqi forces. No figures are available on prisoners held by Iraqis, but the Americans have held about 61,500 over the past three years and are now holding 14,000, military officials say. Roughly 3,000 have been charged and tried in the Iraqi court.

The court acquits nearly half of the defendants, but both Americans and Iraqis involved in the process say that political interference, threats from militants and the judges’ fear for their lives weigh heavily in many verdicts. The military has found housing in the protected Green Zone for only 12 of the 30 judges on the criminal court. The others commute to work.

“The most fundamental thing that we need to do in Iraq is establish the rule of law,” said Mark Waller, an Air Force Reserve major and deputy district attorney in Colorado, who spent four months this year in Baghdad helping to prosecute detainees. “It’s the cornerstone of a civilization. Without it you have anarchy. And we are falling short.”

Beyond the scandal at Abu Ghraib and the trial of Mr. Hussein, the system of holding and prosecuting detainees in Iraq has largely escaped public scrutiny. The day-to-day details of these government operations emerged from interviews with American and Iraqi officials, former detainees, a review of military records and a visit to proceedings in the Iraqi court normally closed to the public.

A classified Pentagon assessment completed in June of the American effort to strengthen Iraqi justice found one sign of progress: the prosecution of former senior government officials. Everything else, from training judges to building court capacity to minimizing civil rights abuses by Iraqi security forces, had fallen behind, according to the assessment by the National Security Council.

“Iraq’s judiciary is technically independent but unable and unwilling to assert itself or provide a balance to Iraq’s powerful political parties,” it said. “The criminal justice system is overloaded and lacks the capacity to consistently process those arrested and/or detained.”

Even though the American military helps to prosecute cases in the court, it does not always release detainees whose cases are dismissed, officials acknowledged in interviews. Maj. Gen. John D. Gardner, the commander of American detainee operations, orders these defendants held if the military believes they remain a threat. According to military officials, this has happened approximately 60 times, or in about 4 percent of the dismissed cases.

American officials said that within the confines of the nascent Iraqi justice system they were striving to protect American troops, while promoting due process. “Our goal is to balance detaining the people who are the real threats, and releasing those who are not, and that’s a fine line,” General Gardner said.

The justice system is most troubling for people like Intisar Jaafar. Her 29-year-old son, Laith al-Ani, was taken from his home in Baghdad by American troops in October 2004 in a search for weapons his mother said they never found. The military said he was a “security detainee” but would not elaborate.

Mr. Ani, a women’s clothing merchant, is being held at Camp Bucca in the desert of southern Iraq, his relatives said. They have made the daylong trip to visit him, but it brought them no more information about when he might be charged, released or brought to court.

In a recent letter he drew a caged heart reaching out to his wife and two children, and wrote: “I hope I can be dust in the storms of Bucca so that I can reach you.”

A Grand Vision

At 9 a.m. on a recent Monday, two United States Army trucks guarded by seven Humvees pulled to a halt in central Baghdad, just outside the protected Green Zone.

The soldiers fanned out with their rifles ready as a man in a black hood and yellow prison garb emerged, followed by more than 30 others, their hands and feet shackled.

The men shuffled down two flights of stairs into the Central Criminal Court.

The courthouse did not exist before the war, with most criminal cases left to provincial judges. In 2003, the Bush administration decided Iraq also needed a central court — like the American federal judiciary — for major national crimes like significant corruption or violence.

The vision was grand.

“Evil doers will face justice in honest and fair Iraqi courts,” L. Paul Bremer III, the administrator of the Coalition Provisional Authority, said in an address to the Iraqi people in November 2003.

Zuhair Maliky, an Iraqi lawyer tapped by the Americans as a chief judge, said: “It was to be a model for all of the courts around the country, where students would come to read the records and learn how courts work. There was to be a library, a conference room where judges would give lectures, and computers where court records would be kept.”

But that vision has run into the realities of Iraq — the insurgency, a lack of resources and politics.

Security concerns have effectively closed proceedings to the public. Court records are not kept on computers, but mostly in paper files held together by yarn. And the daily proceedings, observed by a reporter, are hardly a model of deliberative justice.

That day’s defendants came from two American detention camps and from sundry Iraqi jails.

Shortly past 10 a.m., two American soldiers escorted Hussan Lotfi Abdulla, upstairs to a judge’s office for a preliminary hearing. Mr. Abdulla, who had been in detention for nearly two years, sat next to his court-appointed Iraqi lawyer, whom he had never met.

Facing them in front of the judge’s desk was Capt. Lisa Gorog, a military lawyer who had come to Baghdad to help the military unit that runs the American detention operations in Iraq.

The unit is doubling its legal staff to more than 100 lawyers and aides, drawn largely from the military and prosecutor’s offices throughout the United States.

Even for experienced prosecutors, identifying strong cases among the mass of detainees is difficult given the quality of the evidence. Capt. Matt McCall, who focuses on men like Mr. Abdulla who have been detained in the volatile Anbar Province in western Iraq, said he had to sift through the files of 50 detainees to find 2 that he thought could be convicted. The rest were left in detention either because the soldiers who captured them were not readily available as witnesses or because the evidence was too weak, he said.

The case against Mr. Abdulla presented its own challenges. The one-page case summary prepared by Captain Gorog for the judge said Mr. Abdulla was detained on Jan. 27, 2005, when American soldiers grew suspicious of the taxi in which he was riding. When they forced it to stop, a man got out and tossed a grenade, which did not explode. They killed the man, and searched the taxi where they said they found rocket-propelled grenades, launchers and armor-piercing ammunition.

But Mr. Abdulla had another problem. He is Syrian but had no passport when he was detained. He faced at least 15 years in prison if Captain Gorog could show he had come to Iraq illegally to fight.

After the judge asked some perfunctory questions, Captain Gorog jumped in.

“Why did you come to Iraq?” she asked through an interpreter.

“For work and study,” he replied.

“Why did you come to Ramadi?”

“To visit a friend.”

“Didn’t you know the man throwing the grenade?”

“No. I heard the explosions, but I was lying on the ground.”

“How did you know it was a grenade?”

“The investigator told me.”

“He was right there! Didn’t you see the incident?”

“I was handcuffed on the ground. I didn’t see it.”

Mr. Abdulla’s lawyer remained silent. The judge, who reserved judgment on whether Mr. Abdulla would be tried, asked the clerk to write a one-page summary of the hearing, which the lawyer signed without reading.

In the hall later, Mr. Abdulla’s lawyer, who asked not to be named for fear he would be killed, said he had been given the case just moments before the hearing and would have liked to have met with Mr. Abdulla, “to know how to defend him.” But he said lawyers had stopped asking to meet with American detainees because judges had denied their requests.

“They said it’s the Americans who don’t allow this,” the lawyer said. “It’s in order that we don’t dictate what they say.”

American detention officials denied that was their policy but said it was difficult to arrange for defense lawyers to meet defendants either at detention camps or at the courthouse before the proceedings.

Although Iraq has an inquisitorial system in which judges are empowered to investigate, question witnesses and elicit evidence, defendants have a constitutional right to a lawyer. “We can’t imagine a fair judiciary system without a defense lawyer where he can practice his duty,” said Diya al-Saadie, who until this month ran the Iraqi Bar Association.

Karen Hanrahan, an international law expert who was the State Department’s rule-of-law coordinator in Iraq until recently, devised a plan to create a public defender system to train and pay defense lawyers. She said it was never financed in part because judicial planning was dominated by American prosecutors who took a dim view of defense lawyers.

American lawyers have been brought in to help prosecute cases. Iraqi judges have been flown to Prague and The Hague for workshops. But, Ms. Hanrahan said, “there was no effort to train and work with lawyers.”

Charles W. Larson Sr., the United States attorney for the Northern District of Iowa and an adviser in Iraq in 2004 and 2005, said his team was mindful of defense lawyers but chose to focus on helping judges because “it is a judicially driven system.”

Rapid-Fire Proceedings

By late morning, the courthouse halls bustled with court personnel, private security guards, Iraqi police, American soldiers and their detainees.

At 11:30 a.m., Judge Saeb Ahmed, the chief judge, entered a large courtroom and took the middle of three seats at the dais. Behind him, the scales of justice had been painted on the wall. Black Hawk helicopters passed outside the windows. Explosions could be heard in the distance.

Judge Ahmed and his colleagues had a full docket, but they worked quickly.

The first two men to stand trial were detained by Iraqi security forces on Jan. 3, 2005, in connection with several Baghdad attacks, one on a hospital. Their families had hired a lawyer, Abdul Ami Ali, for $2,500, and with a flourish he told the judges that he had learned that one of the alleged attacks never occurred. He produced a letter from the hospital administrator to prove it. Judge Ahmed added the letter to the defendants’ file, ended the trial and called the next case.

Sad Mahmud Saleh, a 24-year-old truck driver, was accused by American soldiers of having contraband weapons, including a hand grenade, in his house. His trial consisted largely of Judge Ahmed asking questions. At one point the judge stood and raised his voice.

“Are you a terrorist?” he asked.

“No,” Mr. Saleh replied, standing in the tall wooden defendant’s box.

“Are you involved in any organization?”

“No.”

“Why did they bring you here?”

Mr. Saleh’s lawyer, appointed to represent him just as the trial began, simply asked for mercy.

After four more trials, each lasting about 15 minutes, the judges adjourned and cleared the courtroom. It was 1:05 p.m.

At 1:09, they reopened the doors and announced their verdicts and the sentences.

The American military lawyers had mixed results.

Saif Raad Mohammed, who was detained in January 2005 when soldiers said they found a machine gun with a silencer in his home, was sentenced to six years in prison.

The judges issued a string of long sentences, including 30 years for Mr. Saleh in the hand grenade case, and 30 years for the hospital attackers.

The defendants’ lawyer was devastated, saying he figured that the hospital administrator’s letter would have at least prompted the judges to investigate. Judge Ahmed declined to discuss any of that day’s trials or make available any court records. But The Times obtained the judges’ one-page written decision in the hospital attack case. It made no mention of the administrator’s letter.

The judges dismissed the case against a man accused of joining an armed group after the Iraqi prosecutor told them there was not sufficient evidence.

He smiled as his verdict was read, but he did not leave the courthouse a free man. All the American-held detainees were taken back to the detention center. Those found guilty would be sent to Iraqi prisons. The man whose case was dismissed would be reviewed again by American military officials, who would determine whether to release him.

Overcrowded Stockades

The population of American-held detainees now crowding the central court and the prison camps grew quickly and unexpectedly. Shortly after Mr. Hussein was toppled, American soldiers began pulling looters and other troublemakers off the street.

Judge Gilbert S. Merritt, a federal judge from Nashville, Tenn., who was in Baghdad to help rebuild the justice system, said he asked American officials, “What are you going to do with these people now that you’ve picked them up?”

“They were holding them, here and there in stockades, and most were taken to Abu Ghraib, the only facility that the Americans knew about,” Judge Merritt said.

When the insurgency took hold, the trickle of petty thieves turned into a torrent of people suspected of being terrorists and captured fighters. By the time the Abu Ghraib abuse scandal was revealed in the spring of 2004, the Americans were holding about 7,500 people.

Largely unnoticed, the flood of detainees has only increased since then. But neither the Americans troops, who were fighting an insurgency for which they were not prepared, nor the newly reconstituted Iraqi police, had a comprehensive plan for handling them.

Untold numbers of detainees have also been captured and questioned by American soldiers, then turned over to Iraqi security forces who often hold prisoners in miserable conditions.

Early last year, a United States Army unit in Baquba found 450 people, including a few women and children, living in hot, fetid cells built for 150. The Iraqis seemed to have little idea where the detainees had come from and had no means to adjudicate their cases. Lt. Col. Robert Risberg, an officer in the unit, said they discovered that roughly a third of the prisoners had originally been captured by the Americans.

“A majority were people lost in this bureaucratic mess, and it took a while to straighten it out,” he said.

The development of the American detainee operation in Iraq runs contrary to the Pentagon’s practice of avoiding the role of jailer in a foreign country and instead, working to speedily transfer prisoners of war to allies. Maj. James F. Gebhardt, a retired Army historian, said this doctrine stemmed from the Korean War when murderous gangs and infiltrators ravaged the American detention camps.

But in Iraq, where detainees were seen as potential sources of intelligence on the insurgency, the military built its own detention facilities and then put a team in charge that had little experience handling long-term detainees. After the Abu Ghraib scandal in 2004, a new detention unit — Task Force 134 — was formed, but it started with a staff of just five to manage facilities holding 5,000 detainees. By the following summer the number had doubled to 10,000.

With the closing of Abu Ghraib in August, the Americans are holding its detainees mainly in two prisons that at times have been filled beyond capacity: Camp Bucca, a sprawling complex in southern Iraqi, and Camp Cropper near the Baghdad airport.

Military commanders have come under political as well as legal pressure to keep detainees moving through the system. Iraqi officials have persuaded the Americans to release detainees, saying the long detentions are contributing to unrest and violence.

The military conducts reviews in the camps to screen detainees for release. Many have been swept up at the scene of bombings or other violence, and the detention camp boards have recommended releasing as many as 60 percent of the detainees whose cases they reviewed.

Officials have sought to tighten the evidentiary standards used in deciding whether to detain suspects. Last year, for example, Maj. Gen. William H. Brandenburg, then the task force commander, became concerned about a swipe test that soldiers used on suspects to detect gunpowder. The test was so unreliable that cigarette lighter residue and even a common hand lotion would register as gunpowder.

Military officials have another reason to thin their camps. The longer people remain in detention, the more likely they are to be hardened by the experience, officials say.

“We know that inside the compounds, individuals are trying to recruit and promote a fundamentalist network, and we are trying to mitigate that by fighting a small counterinsurgency,” General Gardner said. In an effort to thwart recruitment, detainees are grouped by level of ideology and are given moderate Arab newspapers.

But releasing detainees carries its own risk. Officials estimate that 6 percent of released detainees, or about 2,800, have been recaptured, some in battles with American troops. Soldiers in Mosul were outraged last year to discover that their commander, Lt. Col. Erik Kurilla, had been shot by a man who was set free by the Iraqi court two weeks earlier.

In September, soldiers captured a man suspected of fighting with Al Qaeda in a raid in western Iraq only to find that he was first caught in September 2005 and released in June in the Iraqi government’s unity and reconciliation program, according to military records and interviews.

The release of detainees is such a concern for Americans that the military has put the onus on soldiers to act like police officers and collect evidence. An instructional guide warns that without “sufficient evidence for prosecution, the detainee will be released” and “may attempt to attack soldiers again.”

The guide instructs soldiers to take witness statements, document tests for explosives and record serial numbers of contraband weapons. It also tells soldiers how to use photographic evidence to its best effect.

When suspects are caught away from or fleeing a crime scene, like a bomb or a weapons cache, the guide tells soldiers to take pictures of the suspects at the scene. For example, the guide lays out this chain of events: “Your squad conducts a raid on a house, in the house you find 2 adult males. 50 meters from the house you find a large weapons cache buried 2 feet underground.”

Among the instructions: “Take pictures of the individuals with the cache.”

A Case Falls Apart

On May 12, 2005, a car bomb exploded near a market in southern Baghdad, killing at least 17 people, and the Wolf Brigade flexed its might.

The brigade, an Iraqi commando unit, stormed a neighborhood in eastern Baghdad and arrested four men. By the next day, Iraqis could see results for themselves.

The four men appeared on “Terrorism in the Grip of Justice,” a prime-time television show broadcast by Iraqiya, which featured commando interrogations. They confessed on the air.

But one year later, the four men, who were held in Iraqi detention and faced death by hanging, walked out of the central court, with all charges dismissed.

Their story, pieced together through interviews and court records, is one of a narrow escape from Iraq’s fractured system of justice. It is also the story of an unlikely civil rights lawyer who beat the system for the four men and a handful of others.

Faraj Mahmoud, 42, a grocer, was not totally shocked when he and his two brothers were arrested that night, with a friend.

Their families had emigrated from Palestine after the 1948 war, and like other Sunni refugees had been favored by Mr. Hussein over Iraq’s own Shiite peoples.

The Wolf Brigade, an Interior Ministry unit made up mostly of poor, young Shiites from Sadr City, had developed a reputation for singling out Palestinians and using torture to extract confessions. The unit’s commander, Abu Walid, who questioned the men on the show, has denied the charges.

In recent interviews, the four men, who have fled Iraq, said they had been tortured in a variety of ways. ” ‘We will beat you until your meat is cooked,’ ” one of the men, Amer Mahmoud, 27, an auto mechanic, said an interrogator had told him.

Faraj Mahmoud, who had married six days before he was captured, said he was stripped and hanged from the ceiling. An electric prod applied to his genitals made his body bounce off the walls, he said. Hania Mufti, a Human Rights Watch official with extensive knowledge of Iraq’s jails, said other prisoners had described similar abuses.

The men said their captors also threatened to fetch their families, and they saw naked women and girls being walked through the jail. That is when they all signed confessions.

Among those watching the television show the night the men confessed was Abdul Razzaq, a 31-year-old Iraqi lawyer, and he agreed to take the case without a fee.

Mr. Razzaq handled mostly divorces before the war. After the invasion he began representing mostly criminal defendants. It took him two and a half months to find the four men in the Iraqi detention system. A jailer demanded $50 to lead him to their cell, he said. It smelled so bad that the jailer wore a mask. “All four of us started to cry,” Amer Mahmoud said. “The lawyer started to cry. We didn’t want to let him go.”

Mr. Razzaq picked apart the case. For starters, one of the Mahmoud brothers had confessed to hiding 600 pounds of TNT beneath the backseat of a car, an Opel, that has no space for such a load.

The lawyer found 14 witnesses who he said could provide alibis for the men. He got statements from the police saying that a string of other attacks to which the men confessed had never taken place.

He also went after the man who had directed the Wolf Brigade to his clients. The court eventually agreed that the man, who had confessed as well, was mentally incompetent.

Along the way, Mr. Razzaq said, the Central Criminal Court was typically frustrating. Clerks asked for money to hasten the preparation of judicial orders, a practice that other lawyers have also alleged. The judge who held the preliminary hearing grew impatient, ordering the four men returned to jail for more questioning, he said.

The trial was still months away when Mr. Razzaq received a note, signed by the families of victims of the car bombing: “This is the last notification to you, for you will be a victim and a cheap sacrifice goat for terrorists. Do not defend those atheistic Palestinian criminals and their followers (the worshipers of the atheist, Saddam), or else your destiny shall be death for sure.”

On May 21, 2006, a three-judge panel ordered the release of all four men and their accuser. Citing their confessions at the hands of the Wolf Brigade, the judges wrote, “If it is assumed that the initial confession was correct, it was not supported by any convincing evidence.”

Faraj Mahmoud said: “We couldn’t believe our feet were touching the ground. It seemed like there were a thousand people at home, singing. No one expected us to get released.”

Two days later, the men and their families fled Iraq. Mr. Razzaq then won an acquittal for a Syrian truck driver detained for not having a passport. But the man was kidnapped as he emerged from the prison with three other freed prisoners and was never seen again, Mr. Razzaq said.

He blames himself. “If I had not gotten him out of prison, he would still be there, alive,” he said. Discouraged about practicing law in Iraq, Mr. Razzaq fled the country in October.

The Military Under Pressure

Many of the cases the American military has brought to the Iraqi central court involve multiple defendants. And the evidence connecting them to a specific attack or other crime often varies widely. As a result, despite many victories for the military in court, about half of the 3,000 American-held detainees who have gone to trial have walked free.

There is much finger-pointing about why prosecutions fail.

“We’re in a war time situation where judges unfortunately have to be concerned with their livelihood and their lives,” said Judge John J. Carroll III, a federal judge from North Carolina, who was a military lawyer in Baghdad this year. “We’ve had cases where the detainees should have been convicted and weren’t because of political pressure, from the government and even from terrorist groups, indirectly.”

Qasim Hassan al-Aboudi, the manager of legal and media affairs for the Higher Judicial Council in Iraq, blames the Americans for bringing cases without the kind of evidence that Iraqi law requires.

“Your troops make many mistakes,” he said. “Sometimes they destroy the weapons without documenting them, and they put detainees in for a long time so that other detainees can coach them on what to say in court. We can see that criminals get away, but it’s not the judicial system’s fault. It’s the fault of the mistakes in gathering evidence. We have to respect the law.”

The military is starting to bolster its cases with forensic evidence, including fingerprints and bullet-shard analysis, as well as a video conferencing system that allows soldiers who have returned to the United States to testify in the Iraqi court.

Officials overseeing detention operations said they recognized the importance of defense lawyers, and in an effort to help detainees with their cases they are creating legal assistance centers at detention camps.

The gravity of the cases is increasing as the central court imposes more death penalties. Ten of the 14 American-held detainees sentenced to hang have been convicted since September, and all 14 are awaiting transfer to Iraqi executioners pending an automatic review by Iraq’s court of appeals. Mr. Hussein, who has been sentence to die, was convicted in a special tribunal.

The military declined to identify the men facing death but said they included a man from Saudi Arabia who admitted traveling to Iraq to fight, a Tunisian who participated in dozens of attacks on American troops and three members of a kidnapping ring.

Also awaiting death is Mohammad Munaf, a 54-year-old man born in Iraq who became an American citizen in 2000. He was convicted on Oct. 12 of helping to arrange the kidnapping of three Romanian journalists, who were released unharmed.

Given the state of the justice system in Iraq, however, using the death penalty concerns even one of the American prosecutors who helped bring cases against detainees.

“There are a lot of bad guys out there trying to kill U.S. troops and I want nothing more than to stop those guys,” said Mr. Waller, the Colorado deputy district attorney and Air Force Reserve major. But he said the Iraqi court system needed safeguards to prevent innocent defendants from being sent to the gallows.

“If I had the right guy and I had the right case I think I’d be O.K. with that,” Mr. Waller said. But, today in Iraq, he said, “I don’t think that situation would present itself.”
:: Article nr. 29080 sent on 17-dec-2006 02:37 ECT

www.uruknet.info?p=29080

 

 
 

West Virginia Resident Reports on the Practice of Law in Russian Moldova

Sunday, December 17th, 2006

Editor’s note: Wheeling resident Robin Capehart, his wife, Saun, and daughter, Emily, currently live in the former Soviet Republic of Moldova where Robin is working with Moldovan officials to establish a tax system there. This is a report of the Robin’s impressions of the country’s legal system.

By ROBIN CAPEHART  Special to the Wheeling News-Register

MOLDOVA — There were trials under Communism. Before the fall of the Soviet Union, Moldova had a judicial system with judges and lawyers and rules of procedure and courts of appeals. You could be charged with a crime and taken before a jury or sue the guy who hit you with his Lada.

Yet, very seldom did the outcome of any judicial proceeding in the U.S.S.R. conflict with the wishes of the Party. Corruption and influence inevitability trumped evidence and advocacy.

In 1992, the Republic of Moldova’s independence produced a new constitution that granted its citizens a host of rights unreachable under Soviet rule. These rights reflected Moldova’s desire to replace “the subjective rule of man? that characterized the Soviet justice system with “the rule of law? that is indicative of a country pursuing liberty and individual rights.

Obviously, this change also had a significant impact on the practice of law in Moldova. As an attorney with the West Virginia law firm of Steptoe and Johnson, I looked forward to learning about the practice of law in a country undergoing the transition from communism.

Since August, I’ve had the opportunity to be a part of the law faculty at Moldova State University. I have met and discussed Moldova’s justice system with local lawyers and law students. In addition, I’ve met American lawyers who are working for the American Bar Association’s Central European and Eurasia Law Initiative (ABA/CEELE) which is monitoring and assisting in the development of the judicial system in this former Soviet Republic.

Like many facets of Moldovan life, the practice of law been slow to develop due to undeveloped institutions and ingrained attitudes that are still tethered to the past.

Legal Education

In Moldova, law school, or “faculty of law? as its known, provides a type of legal training that is vastly different than in the U.S. In the U.S., law students must first earn good grades in an undergraduate major; receive an undergraduate degree; score well on the law school admissions test (LSAT); and withstand an often rigorous competition for acceptance into an ABA-accredited law school. While most law school curricula require students to complete a standard list of classes such as torts, contracts and property law, they also offer a wide selection of elective courses which will allow students to pursue a particular area of interest. Usually, law school is three years and leads to a Doctor of Jurisprudence degree.

In Moldova, the first degree in law is an undergraduate degree which takes either four or five years depending upon whether the student had completed eleven or twelve years of secondary education prior to matriculation. Upon admission, the student is placed with a group of classmates with whom they take all of their classes throughout the four or five year period.

While the curriculum is similar to a traditional western law school, there are no electives and most classes consist of a professor dictating his or her notes and the law student memorizing them for the test. A trip through the law school’s “book store? reveals the only publications available are the various Moldovan codes in both Romanian and Russian. Likewise, these are memorized.

Critical thinking is rarely taught and the curriculum seldom includes any practical application of legal theory. Students report that month long internships with courts, police and prosecutors are perfunctory and of little value.

Once again, corruption is a cancer with many students reporting that bribing professors for grades is routine. Although I have not personally been approached, these stories coincide with the findings of the ABA/CEELI.

For the most part, the need for funding often discourages professors from applying demanding standards in the classroom. This is unfortunate since I have a number of very bright students in my class who are eager to be challenged and could succeed anywhere in the world. Yet, most students who will earn an undergraduate degree are ill-prepared for the practice of law.

There is a reason for optimism, however. Most of the younger professors with whom I’ve met are well-aware of the shortcomings in the current system. One professor in international relations helped organize the school’s first moot court team. She admitted that in their first competition they were vastly overmatched in terms of the skills necessary to compete in an advocacy situation. She was also very proud, though, of the fact that in the following year they made a substantial improvement in their position among other European schools.

The Practice of Law

A person who earns an undergraduate law degree is classified as a “jurist? and can immediately begin practicing civil law which would include advising and representing clients in contractual matters and domestic relations disputes. Since the practice of law by jurists is not regulated by the state or any independent association, there is no test or internship required

In order to practice criminal law, however, practitioners must become an “advocate? by first completing an internship with a “supervising advocate;? then pass an oral examination administered by the Commission on Licensing Advocates. The test consists of candidates answering one random question drawn from each of three piles. Thus, every candidate answers a different question. The candidates are not tested on critical thinking skills; the ability to apply the law to a certain set of facts; or the practical application of theory.

A passing score on the oral examination is eight out of ten. Even if a candidate passes the test, the Commission may still deny the candidate a license. If a person fails the oral examination or is denied a license, there is no right of appeal.

Legal Ethics

There are few rules of professional responsibility that apply to jurists. Because they are not members of a legally recognized profession, there is no law nor a code of ethics governing the professional activity of jurists. Recently, an independent Union of Jurists has published a vision of legal ethics for its members, yet it has not produced a binding code of conduct.

On the other hand, the Law on the Legal Profession which applies only to advocates includes a code of ethics which requires licensed lawyers to maintain client confidentiality and avoid conflicts of interest. Under the law, advocates may specialize, but they may not advertise. The law establishes an ethics commission to oversee compliance, but the panel lacks the ability to effectively enforce the rules. Also, the independent Congress of the Bar has adopted a Code of Ethics that establishes the proper relationship between advocates and the criminal justice system.

Unfortunately, advocates make up a very small minority of those who practice law. For example, in 2003, there were a total of 1,027 advocates in the entire country. In that same year, nearly 2,700 students received undergraduate law degrees which entitled them to begin to practice civil law.

The Law Firm

Jurists and advocates are free to organize law firms, but office space is limited and expensive. It is not unusual for four to six lawyers to share one office. Most advocates have new copies of the various codes, but research resources are scarce and practically nonexistent in the rural areas of the country. There is a national law journal to which most jurists and advocates subscribe which apprises them of the latest changes in the law. There is also an online service that is available free of charge that provides the latest changes in the laws.

For the most part, compensation is low. Those representing businesses may charge by the hour, but fixed fees are more common. For example, the fee in a typical civil case ranges from $50 to $100 and $100 for a criminal case. Advocates in major criminal cases, however, may command fees from $1,000 to $5,000. Courts routinely appoint advocates to represent indigent persons in criminal matters. The customary court-approved fee for such services is $4 per day.

In 2004, Parliament passed a law requiring mandatory continuing legal education. However, there are few opportunities for lawyers to attend such classes and none outside Chisinau, the country’s capital.

In Court

As it is with most institutions in Moldova, corruption is still the major problem facing the judicial system. Unfortunately, lawyers are judged more on their ability to work the system and know the right people than their skill in presenting a client’s case.

One ABA observation team saw a lawyer enter a judge’s chamber with a suitcase full of money and exit without it moments before his trial was to begin. Other reports claim that judges will require a share of the fees before he grants his approval.

The role of an attorney in Moldova is the antithesis of his American counterpart. For the most part, there is no advocacy in the courtroom. In civil matters, lawyers advise their clients of the law but are passive when the matter is heard in court. Attorneys will take statements of witnesses prior to court and present them to the judge. Often, the only testimony in court by a witness is whether or not statement is his. Cross-examination is illegal although Moldovan attorneys are quickly learning how to elicit the necessary testimony through direct examination.

The Appeals Process

Moldova has a judicial hierarchy consisting of district courts, courts of appeals and a supreme court. While the district courts are the primary trial courts, courts of appeals are entitled to accept new evidence without a showing of why the evidence was not presented in district court. A common strategy by attorneys who believe they will get a more favorable hearing in the appeals court is to withhold evidence until the case reaches the court of appeals.

Moldova has a separate constitutional court whose role is to hear only cases that involve constitutional matters. Their decisions may be binding on the litigants in a particular case, but the judicial system in Moldova only recognizes statutory law and does not rely on precedent in rendering a decision.

The Future

The formation of independent Bar Congress was a major step in the advancement of the practice of law. It is anticipated that the Ministry of Justice will relinquish its control over the practice of law to the Bar which will pave the way for better educational and professional requirements as well as providing an independent body to monitor the conduct of judges and court proceedings, in general.

In America, we have our share of concerns about our legal system. Yet, when you look around the world you realize that our system is the best that mankind has every created in terms of protecting our rights and guaranteeing a fair hearing of our grievances. We are truly blessed.