Archive for April, 2007

Conduct Commission Suspends Judge Browning for Improper Conduct

Friday, April 20th, 2007

The Kentucky Judicial Conduct Commission ordered on April 19th. That Judge Sue Carol Browning who represents Logan and Todd counties, to serve a l5 day suspension to begin April 27 and continue through May 12th.  The suspension without pay will cost Browning about $4000 in pay and benefits.

 

District Judge Browning was cited from jailing l7 Hispanic immigrants indefinitely after asking federal authorities to investigate their status.

 

Browning ordered the men detained after they were stopped for traffic violations.  Some were held without bail for as long as three weeks in August and September of 2006.  The commission said Browning violated the canons of judicial conduct by instructing police officers to arrest immigrants without identification during traffic stops, then denying the men a right to bail.  Press reports at the time also reported that she also denied them access to legal counsel.

 

It is unusual for a judge to order the police to arrest people.  Prosecution policy fits into the job description of prosecutors, and judges are supposed to be removed from making prosecutorial policy decisions. 

PULASKI FAMILY COURT JUDGE WALTER MCGUIRE SUES TO BE ABLE TO DOUBLE DIP ON SALARY. Caselaw supports Chief Justice and Governor on this issue.

Thursday, April 19th, 2007

Judge sues to be able to double-dip and receive both a retirement benefit and a full salary.  His grounds appear not to be supported by a prior decision of the Ky. Supreme Court.

Judge Walter Mcguire of Somerset had previously served as a District Judge then retired and applied for his judicial retirement benefits.  He then was elected l8 months later to the Pulaski Family Court, replacing Debra Lambert.

Mcguire now seeks to draw his current salary as Family Court Judge and also draw his full judicial retirement benefit.  The salary for a Family Court Judge is $121,752.  Mcguire was eligible for a retirement benefit of $85,834 a year.  Under current law he is not entitled to receive both payments, but does receive his retirement benefit plus the difference in the Family Court salary.  So he is currently receiving $121,752.   If he is successful in his lawsuit he would be able to receive a total of $207,586.  The difference is $85,834 a year.  If he completes the current eight year term to which he was elected, this would mean additional payments to him of $606,672.

The legislature adopted a law to prevent double-dipping by judges as part of the Judicial Budget in 2006, but the language of the law delayed the effective date till after the candidates for the 2006 election were seated and grandfathered in.  The legislature apparently wanted to avoid allegations that the double-dipping provision was advanced by Chief Justice Lambert to advance the campaign of his wife Debra Lambert who was subsequently defeated by Mcguire.

Chief Justice Lambert said in an interview that his wife’s situation “did not influence my position.? As top administrator for the courts, he said, he had a duty to address the issue and “absolutely? shouldn’t have recused himself.Chief Justice Lambert called on Governor Fletcher to veto the portion of the new law that delayed the effective date of the new law.  The Governor acceded to Lamberts request and by use of his line item veto, struck out the language that would have exempted Mcguire and two other judges from application of the double-dipping provisions.

The legal basis for Mcguires suit relies on the claim of  several legal experts who say that such a veto can only be used to cancel the money appropriated by the Legislature and cannot be used to “change a law?.

In a Courier-Journal article by Andrew Wolfson, legal experts said:

“Such vetoes are usually used to strike down specific spending items, said Mark Guilfoyle, who served as general counsel to Brereton Jones when he was governor.?
“Lexington lawyer Scott White, who researched the issue as assistant deputy attorney general for a 2003 opinion, said Fletcher acted improperly. “You can’t amend the law by fiddling with a budget bill,? he said. “You can only veto the money.?

“Fletcher’s general counsel, Jim Deckard, who until recently was Lambert’s top lawyer, defended the veto, saying it was permitted because it was part of a spending bill.?“The state Constitution gives the governor power to “disapprove any part or parts of appropriation bills embracing distinct items.?

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

“But retired Chief Justice John Palmore said “I have a strong position that the judiciary should keep its hands out of the governor’s business, and the governor should keep his hands out of the judiciary’s…,? .“Governor Fletcher said in his April 24 veto that he was moving up the effective date “to protect against the possibility that judges who are unopposed on the November 2006 ballot could retire prior to the commencement of their new term, which would allow receipt of both salary and retirement benefits.?

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

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

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

Maguire said he earned his retirement pay — “It wasn’t a gift? . “A lot of people have encouraged me to pursue this because some legal questions remain unanswered and could affect people in the future.? “It’s a question of law and equity.?

LawReader has reviewed the claim that the Governor cannot veto a provision in a budget bill in order to effect a change in a statute.  It appears that the Governor and Chief Justice Lambert have authority in a Supreme Court decision issued in 1986 and in Section 88 of the Ky. Constitution.

The following provision of the Ky. Constitution, Section 88 gives the Governor the authority to make partial vetoes of appropriation bills.

“The Governor shall have the power to disapprove any part or parts of appropriation bills embracing distinct items, and the part or parts disapproved shall not become a law unless reconsidered and passed, as in case of a bill.

LawReader notes that this issue appears to have been answered by the Ky. Supreme Court in Com. ex rel. Armstrong v. Collins, 709 S.W.2d 437 (Ky., 1986).  While this decision is not exactly on point, it does present language which we believe strongly supports the Governor’s veto.  The case states: “Also in Brown we declared invalid a statutory provision that required the budget be submitted as a resolution, as opposed to the mandate of Kentucky Constitution Section 88 that it be presented as a bill. Significant to the issue in the case sub judice, we declared…

When the budget is enacted as a bill, the provisions thereof could repeal existing statutes. But if the budget document is introduced in the form of a resolution, it can not have the effect of repealing any existing statutes.” Id. at p. 927. (emphasis added).”
      ” We thus twice stated that a budget bill could be used to repeal existing statutes.?

“The United States Supreme Court agrees. United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980), our highest court specifically held that the United States Congress could modify statutory law in an appropriation bill. In an unanimous opinion, the Court quoting United States v. Dickerson, 310 U.S. 554, 555, 60 S.Ct. 1034, 1035, 84 L.Ed. 1356 (1940) said:

“[W]hen Congress desires to suspend or repeal a statute in force, ‘[t]here can be no doubt that … it could accomplish its purpose by an amendment to an appropriation bill …’ ” Id. at 222, 101 S.Ct. at 484.?

Laws limit options when student is mentally ill.

Thursday, April 19th, 2007

 

DiggFacebook  By TAMAR LEWIN  April 19, 2007
 

Federal privacy and antidiscrimination laws restrict how universities can deal with students who have mental health problems.
 

For the most part, universities cannot tell parents about their children’s problems without the student’s consent. They cannot release any information in a student’s medical record without consent. And they cannot put students on involuntary medical leave, just because they develop a serious mental illness.
 

Nor is knowing when to worry about student behavior, and what action to take, always so clear.
 

“They can’t really kick someone out because they’re writing papers about weird topics, even if they seem withdrawn and hostile,? said Dr. Richard Kadison, chief of mental health services at Harvard University. “Most state laws are pretty clear: you can only bring students to hospitals if there is imminent risk to themselves or someone else, so universities are in a bit of a bind that way.?
 

But, he said, some schools do mandate limited amounts of treatment in certain circumstances.
 

“At the University of Missouri, if someone makes a suicide attempt, they mandate four counseling sessions, for example,? said Dr. Kadison, an author of “College of the Overwhelmed: The Campus Mental Health Crisis and What To Do About It.?
 

Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.
 

On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.
 

Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression.
 

“This is a very, very difficult and gray area, when you take action to remove the student from the campus environment, versus when you encourage the student to use the resources available on campus,? said Ada Meloy, director of legal and regulatory affairs at the American Council on Education. “In an emergency, you can share certain information, but it’s not clear what’s an emergency.?
 

Ms. Meloy estimated that situations complicated enough to involve a university’s lawyers arise, on average, about twice a semester at large universities.
 

While shootings like the one at Virginia Tech are extremely rare, suicides, threats and serious mental-health problems are not. Last year, the American College Health Association’s National College Health Assessment, covering nearly 95,000 students at 117 campuses, found that 9 percent of students had seriously considered suicide in the previous year, and 1 in 100 had attempted it.
 

So mental health experts emphasize that, whatever a college’s concerns about liability, the goal of campus policies should be to maximize the likelihood that those who need mental-health treatment will get it.
 

“What we really need to do is encourage students to seek mental health treatment if they need it, to remove any barriers to their getting help, destigmatize it, and make it safe, so they know there won’t be negative consequences,? said Karen Bower, a lawyer at the Bazelon Center for Mental Health Law in Washington, who represented Mr. Nott.
 

With the Virginia Tech killings, many universities are planning to remind faculty members of their protocols. “We’re actually going to go ahead and have the counseling service here do a session for all our instructors and faculty on what to look for, what the procedures are, and what the counseling center can do,? said Shannon Miller, chairwoman of the English department at Temple University.
 

At Harvard, Dr. Kadison said, dormitory resident assistants watch for signs of trouble, and are usually the first to become aware of worrisome behavior — and to call a dean.
 

“The dean might insist that they get an evaluation to make sure they’re healthy enough to live in a dorm,? he said. “If it’s not thought that they’re in any immediate danger, they can take or not take the recommendation.?
 

Last month, Virginia passed a law, the first in the nation, prohibiting public colleges and universities from expelling or punishing students solely for attempting suicide or seeking mental-health treatment for suicidal thoughts.
 

“In one sense, the new law doesn’t cover new territory, because discrimination against people with mental health problems is already prohibited,? said Dana L. Fleming, a lawyer in Manchester, N.H., who is an expert on education law. “But in another sense, it’s ground-breaking since it’s the first time we’ve seen states focus on student suicides and come up with some code of conduct for schools.?
 

College counseling services nationwide are seeing more use.
 

“We’re seeing more students in our service consistently every year,? said Alejandro Martinez, director for counseling and psychological services at Stanford University, which sees about 10 percent of the student body each year. “Certainly more students are experiencing mental illness, including depression.
 

“But there’s also been a cultural shift,? Mr. Martinez said, “in that more students are willing to get help.?
 

College officials say that a growing number of students arrive on campus with a history of mental-health problems and a prescription for psychotropic drugs. But screening for such problems would be illegal, admissions officers say.
 

“We’re restricted by the disabilities act from asking,? said Rick Shaw, Stanford’s admissions director. “We do ask a question, as most institutions do, about whether a student has been suspended or expelled from school, and if they have been, we ask them to write an explanation of it.?
 

Federal laws also restrict what universities can reveal. Generally, the Family Educational Rights and Privacy Act, Ferpa, passed in 1974, makes it illegal to disclose a student’s records to family members without the student’s authorization.
 

“Colleges can disclose a student’s private records if they believe there’s a health and safety emergency, but that health and safety exception hasn’t been much tested in the courts, so it’s left to be figured out case by case,? Ms. Fleming said.
 

And the Health Insurance Portability and Accountability Act prohibits the release of medical records. “The interaction of all these laws does not make things easy,? she said.

MURDER BY MENTAL PATIENT, IT HAS HAPPENED HERE, IT WILL HAPPEN AGAIN. KENTUCKY MENTAL COMMITMENT LAWS ARE THE WEAKEST IN THE U.S.

Wednesday, April 18th, 2007

Editorial by LawReader Senior Editor Stan Billingsley – April 18, 2007
    Cho Seung-Hui, the 23 year old suicidal killer of 32 students and faculty members at Virginia Tech was found to be dangerous and mentally ill eighteen months ago by a Virginia Court.  He received a few days of cursory treatment and evaluation and was then released.  Kentucky law invites the same thing to happen here.  Virginia law provided the judge with the option to order commitment for treatment of up to 180 days. See:Virginia Statute: § 37.2-817 below.

   Once again, we are provided with an example of laws that ignore the findings of the courts, and in truth provide no humane treatment for the mentally ill person.

   More years ago then I like to remember I wrote a study concerning the danger presented to the public by persons who are found to be mentally ill and dangerous to themselves or others by the court.  Under Kentucky law, the court has no control over whether or not a person who has been found by the courts to be dangerous, will actually receive any treatment by our state’s mental health system.  In our research for our study of Kentucky’s mental commitment laws, we found anecdotal evidence by numerous police officers who had transported people committed by a court to a Ky. State mental health facility and which were released immediately by the hospital after a cursory ten or fifteen minute evaluation.  Many policemen related stories where they were told by the Kentucky mental health facility to not leave until they decided if the patient was going to be admitted, even though a court had ordered the commitment.  In many instances the policeman then had to transport the patient home where he was released.
 

The 32 murders at Virginia Tech by a person who had been declared to be mentally ill and dangerous is just another example of how our mental health system is failing to protect the public and failing to help the mentally ill person.
 

The study was titled, Catch 202A:  Kentucky’s License to Kill.
 KRS 202A.026 provides four criteria for forced commitment of mentally ill persons.
 

KRS 202A.026 Criteria for involuntary hospitalization.
 No person shall be involuntarily hospitalized unless such person is a mentally ill person:  (and)

(1) Who presents a danger or threat of danger to self, family or others as a result of the

mental illness;

(2) Who can reasonably benefit from treatment; and

(3) For whom hospitalization is the least restrictive alternative mode of treatment

presently available.

In the study we reviewed the involuntary hospitalization laws of all 50 states.  Kentucky was found to have the most stringent admission requirements in the entire U.S.

The Ky. Law while dealing with the same standards as used by other states, is unusual in that it requires that all four criteria must exist and that as soon as any one of the four criteria are found by a physician in the state mental health system to no longer exist, then the patient must be immediately released.

You are not likely to find a single District Judge in Kentucky who hasn’t conducted a hearing and found that a person meets all four admission criteria, and then finds that the state mental facility either refuses to admit the patient, or if they do admit the patient, orders his release within a few days.

A person can be found by the court to need serious treatment, to be seriously dangerous, but any physician in the mental health facility can overrule the court finding and doesn’t even have to give notice to the admitting court or to any parties who might fear the person.

As a result of the story, the Louisville Courier-Journal ran a series and WHAS television found a person who had murdered a person, and was home in Louisville sitting on his front porch.   These people are often found by the courts to be so ill they are not competent to stand trial.  And here is the Catch 202….the standards for finding a person to be competent to stand trial, and the standards for admission to a mental facility are different.

Even though a Kentucky court has found a person to be dangerous, and even though the court that reviews their competency to stand trial finds they are incompetent to stand trial, they may not meet the much higher standards found in KRS 202A.026 for admission.

The result has happened hundreds of times in Kentucky.  That result is that he is incompetent to stand trial for his crime of violence, but he is found by the mental health facility not to be eligible for involuntary admission for treatment by the hospital. Therefore, the person who is charged with child molestation or even murder, is released.

The only thing the court can do about this is to periodically review the person’s mental status, but if he remains mentally ill, he can’t be tried for any offense with which he has been charged by the Commonwealth.

 In one Louisville case a mentally ill person was a habitual child molester who had been arrested l5 times.  He couldn’t be tried and he couldn’t be hospitalized, so he was free to walk the streets and continue his crime spree.

The legislature has appointed committees, other groups have sought reform of this law, but everytime the issue has been presented to the Legislature, it has died on the vine.

Some thirty-five years ago Kentucky had 15,000 mental health beds.  Since then the number of mental health beds in Kentucky has been reduced to less then 1,000.  In that same time period the number of prison beds in Kentucky has increased from about 3,000 beds to close to 20,000 beds.

At the time of the study the cost of hospitalization of a mentally ill person was found to be about $100,000 a year.  The annual cost of a prison bed was only $13,000, so do the math, the only way to get these people off the street was to ignore their incompetency to stand trial and to try to bury them in a prison somewhere.

Kentucky has created a sentencing option that applies to some people who are mentally ill, but not to those who are incompetent to stand trial.  A jury is permitted to find a person GUILTY BUT MENTALLY ILL.  This assures that he will receive some prison time, but the promised mental health care while he is in prison is usually minimal.  Eventually, after they have served out their time, such persons are released back into society without any further evaluation of their current mental status.

Kentucky Guilty But Mentally Ill Sentencing Standards:

504.130 Grounds for finding defendant guilty but mentally ill.
(1) The defendant may be found guilty but mentally ill if:

(a) The prosecution proves beyond a reasonable doubt that the defendant is guilty

of an offense; and

(b) The defendant proves by a preponderance of the evidence that he was mentally

ill at the time of the offense.

(2) If the defendant waives his right to trial, the court may accept a plea of guilty but

mentally ill if it finds that the defendant was mentally ill at the time of the offense.

Effective: July 15, 1982
History: Created 1982 Ky. Acts ch. 113, sec. 8, effective July 15, 1982.
                      
504.150 Sentence for person found guilty but mentally ill.
(1) The court shall sentence a defendant found guilty but mentally ill at the time of the

offense to the local jail or to the Department of Corrections in the same manner as a

defendant found guilty. If the defendant is found guilty but mentally ill, treatment

shall be provided the defendant until the treating professional determines that the

treatment is no longer necessary or until expiration of his sentence, whichever occurs

first.

(2) Treatment shall be a condition of probation, shock probation, conditional discharge,

parole, or conditional release so long as the defendant requires treatment for his

mental illness in the opinion of his treating professional.

Effective: July 14, 1992
 

Our study concluded that there were several hundred people in Kentucky at the time, who had been charged with a criminal offense, but were found incompetent to stand trial, who were not tried, and received only a few days of mental health treatment before being released from custody.

We have no reason to believe that the number of such persons walking the streets today has gone down.

The legislature has looked at the problem and we believed has chosen not to act due to the cost of a solution.  The social cost to the public has been found to be acceptable in light of the financial cost of a solution.

Mental health professionals point out that the psychotrophic drugs developed in the l970’s can be used to control the crazied idealizations of most mentally ill persons.  No doubt this is true.  The problem is that the patient after being stabilized at the mental health facility with these drugs, is released and expected thereafter to obtain medication on his own, and to take these medications.  In reality most of the severely mentally ill quickly refuse to continue to take the prescribed drugs.  So we have new offenses, new court hearings, and the merry-go-round of commitment, stabilization and release by the mental health hospital, occurs time and time again.

We suggested in our original study, and we will suggest again, that there is a rational and humane solution that protects the public and will go a long way to benefit the mentally ill person.

That solution is the adoption of legislation that mandates that any person who is found to meet the involuntary admission criteria of KRS 202A.026, are only released from the mental health facility after an independent “mental health review board? has determined that their release will not endanger themselves or the public, and if the hospital physician has prescribed medication, that the condition for release or parole from the hospital, is that they properly take the drugs to control their condition.  If they fail to take their medication, then they are automatically picked up and hospitalized.  If they take their medication, then they can remain free.

I don’t expect this solution to be adopted.  The mental health lobby is powerful.  I was asked to speak to a group of “mental health consumers? and I assure you their main concern was not the protection of the public, but instead the objection they voiced over and over again, was that such a procedure created a bad image in the public’s mind that would prejudice those people who had been diagnosed with a mental illness but who had successfully integrated themselves into society without harming themselves or others.

I suggested to my audience, that sweeping this problem under the rug by ignoring it was not a better solution.  I suggested that if the public was given a reason to believe that the really dangerous mentally ill were being monitored and treated, that the public would be less likely to feel prejudicial towards all mentally ill persons.

But if you believe that a Cho Seung-Hui type incident can’t happen here…then you just don’t understand the reality of the situation.

THE LAW IN VIRGINIA
 

In Virginia if a person charged with a crime is found incompetent to stand trial, then the court retains a degree of control over the patient.  In Kentucky there is no law providing the court with continuing jurisdiction, other than to periodically review the patient’s competence.  A Virginia judge can order treatment for continuing periods each of which shall not exceed 180 days

Virginia Statute: § 37.2-817. Involuntary admission and outpatient treatment orders.

 B. After observing the person and obtaining the necessary positive certification and considering any other relevant evidence that may have been offered, if the judge or special justice finds by clear and convincing evidence that (i) the person presents an imminent danger to himself or others as a result of mental illness or has been proven to be so seriously mentally ill as to be substantially unable to care for himself and (ii) alternatives to involuntary inpatient treatment have been investigated and deemed unsuitable and there is no less restrictive alternative to involuntary inpatient treatment, the judge or special justice shall by written order and specific findings so certify and order that the person be admitted involuntarily to a facility for a period of treatment not to exceed 180 days from the date of the court order. Such involuntary admission shall be to a facility designated by the community services board or behavioral health authority that serves the city or county in which the person was examined as provided in § 37.2-816. If the community services board or behavioral health authority does not designate a facility at the commitment hearing, the person shall be involuntarily admitted to a facility designated by the Commissioner. The person shall be released at the expiration of 180 days unless he is involuntarily admitted by further petition and order of a court or such person makes application for treatment on a voluntary basis as provided for in § 37.2-805.
Virginia Statute: § 37.2-815. Commitment hearing for involuntary admission; examination required.
Notwithstanding § 37.2-814, the district court judge or special justice shall require an examination of the person who is the subject of the hearing by a psychiatrist or a psychologist who is licensed in Virginia by the Board of Medicine or the Board of Psychology and is qualified in the diagnosis of mental illness or, if such a psychiatrist or psychologist is not available, any mental health professional who is (i) licensed in Virginia through the Department of Health Professions and (ii) qualified in the diagnosis of mental illness. The examiner chosen shall be able to provide an independent examination of the person. The examiner shall (a) not be related by blood or marriage to the person, (b) not be responsible for treating the person, (c) have no financial interest in the admission or treatment of the person, (d) have no investment interest in the facility detaining or admitting the person under this chapter, and (e) except for employees of state hospitals and of the U.S. Department of Veterans Affairs, not be employed by the facility. For purposes of this section, the term “investment interest” shall be as defined in § 37.2-809.
All such examinations shall be conducted in private. The judge or special justice shall summons the examiner who shall certify that he has personally examined the person and has probable cause to believe that the person (i) does or does not present an imminent danger to himself or others as a result of mental illness or is or is not so seriously mentally ill as to be substantially unable to care for himself and (ii) requires or does not require involuntary inpatient treatment. Alternatively, the judge or special justice may accept written certification of the examiner’s findings if the examination has been personally made within the preceding five days and if there is no objection sustained to the acceptance of the written certification by the person or his attorney. The judge or special justice shall not render any decision on the petition until the examiner has presented his report orally or in writing.
 

Virginia Statute: 19.2-169.2. Disposition when defendant found incompetent.
A. Upon finding pursuant to subsection E of § 19.2-169.1 that the defendant, including a juvenile transferred pursuant to § 16.1-269.1, is incompetent, the court shall order that the defendant receive treatment to restore his competency on an outpatient basis or, if the court specifically finds that the defendant requires inpatient hospital treatment, at a hospital designated by the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services as appropriate for treatment of persons under criminal charge. Any reports submitted pursuant to subsection D of § 19.2-169.1 shall be made available to the director of the treating facility.
B. If, at any time after the defendant is ordered to undergo treatment under subsection A of this section, the director of the treatment facility believes the defendant’s competency is restored, the director shall immediately send a report to the court as prescribed in subsection D of § 19.2-169.1. The court shall make a ruling on the defendant’s competency according to the procedures specified in subsection E of § 19.2-169.1.
(1982, c. 653; 2003, c. 735.)
In Juvenile commitments in Virginia, the court retains control over committed juveniles.  In Ky. All decisions other than commitment are left to the treating physician at the mental health facility.

Virginia Statute: § 16.1-345. Involuntary commitment; criteria.
The court shall order the involuntary commitment of the minor to a mental health facility for treatment for a period not to exceed 90 days if it finds, by clear and convincing evidence, that:
1. Because of mental illness, the minor (i) presents a serious danger to himself or others to the extent that severe or irremediable injury is likely to result, as evidenced by recent acts or threats or (ii) is experiencing a serious deterioration of his ability to care for himself in a developmentally age-appropriate manner, as evidenced by delusionary thinking or by a significant impairment of functioning in hydration, nutrition, self-protection, or self-control;
2. The minor is in need of compulsory treatment for a mental illness and is reasonably likely to benefit from the proposed treatment; and
3. If inpatient treatment is ordered, such treatment is the least restrictive alternative that meets the minor’s needs. If the court finds that inpatient treatment is not the least restrictive treatment, the court may order the minor to participate in outpatient or other clinically appropriate treatment.
A minor who has been hospitalized while properly detained for a criminal offense by a juvenile and domestic relations district court shall be returned to the detention home following completion of a period of inpatient treatment, unless the court having jurisdiction over the criminal case orders that the minor be released from custody.
In conducting an evaluation of a minor who has been properly detained, if the evaluator finds, irrespective of the fact that the minor has been detained, that the minor meets the criteria for involuntary commitment in this section, the evaluator shall recommend that the minor meets the criteria for involuntary commitment.
In no event shall a minor who has been properly detained by a juvenile and domestic relations district court, and who meets criteria for involuntary commitment, have the right to make application for voluntary admission and treatment as may otherwise be provided for in this section.
If the parent or parents with whom the minor resides are not willing to approve the proposed commitment, the court shall order inpatient treatment only if it finds, in addition to the criteria specified in this section, that such treatment is necessary to protect the minor’s life, health, or normal development, and that issuance of a removal order or protective order is authorized by § 16.1-252 or 16.1-253.
Upon finding that the best interests of the minor so require, the court may enter an order directing either or both of the minor’s parents to comply with reasonable conditions relating to the minor’s treatment.
If the minor is committed to inpatient treatment, such placement shall be in a mental health facility for inpatient treatment designated by the community services board which serves the political subdivision in which the minor was evaluated pursuant to § 16.1-342. If the community services board does not provide a placement recommendation at the hearing, the minor shall be placed in a mental health facility designated by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services. The judge shall order the sheriff to transport the minor to the designated mental health facility as specified in § 37.2-829. The transportation of the committed minor by the minor’s parent may be authorized at the discretion of the judge.
(1990, c. 975; 1992, c. 539; 2005, c. 346.)

Virginia Law allows the court to determine the release or detention of incompetents. In Ky. The mental health facility can overrule the court.

Virginia Statute § 19.2-169.2. Disposition when defendant found incompetent.
A. Upon finding pursuant to subsection E of § 19.2-169.1 that the defendant, including a juvenile transferred pursuant to § 16.1-269.1, is incompetent, the court shall order that the defendant receive treatment to restore his competency on an outpatient basis or, if the court specifically finds that the defendant requires inpatient hospital treatment, at a hospital designated by the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services as appropriate for treatment of persons under criminal charge. Any reports submitted pursuant to subsection D of § 19.2-169.1 shall be made available to the director of the treating facility.
B. If, at any time after the defendant is ordered to undergo treatment under subsection A of this section, the director of the treatment facility believes the defendant’s competency is restored, the director shall immediately send a report to the court as prescribed in subsection D of § 19.2-169.1. The court shall make a ruling on the defendant’s competency according to the procedures specified in subsection E of § 19.2-169.1.
(1982, c. 653; 2003, c. 735.)
 

 Virginia law recognizes that some patients are “unrestorably incompetent?, and the court retains at least a modicum of control over his treatment and disposition.  Ky. Law is silent on “unrestorably incompetent? persons.

Virginia Statute § 19.2-169.3. Disposition of the unrestorably incompetent defendant; capital murder charge; referral to Commitment Review Committee.
A. If, at any time after the defendant is ordered to undergo treatment pursuant to subsection A of § 19.2-169.2, the director of the treating facility concludes that the defendant is likely to remain incompetent for the foreseeable future, he shall send a report to the court so stating. The report shall also indicate whether, in the director’s opinion, the defendant should be released, committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, committed pursuant to Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, or certified pursuant to § 37.2-806 in the event he is found to be unrestorably incompetent. Upon receipt of the report, the court shall make a competency determination according to the procedures specified in subsection E of § 19.2-169.1. If the court finds that the defendant is incompetent and is likely to remain so for the foreseeable future, it shall order that he be (i) released, (ii) committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, (iii) reviewed for commitment pursuant to Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, or (iv) certified pursuant to § 37.2-806. If the court finds the defendant incompetent but restorable to competency in the foreseeable future, it may order treatment continued until six months have elapsed from the date of the defendant’s initial admission under subsection A of § 19.2-169.2.
B. At the end of six months from the date of the defendant’s initial admission under subsection A of § 19.2-169.2 if the defendant remains incompetent in the opinion of the director, the director shall so notify the court and make recommendations concerning disposition of the defendant as described above. The court shall hold a hearing according to the procedures specified in subsection E of § 19.2-169.1 and, if it finds the defendant unrestorably incompetent, shall order one of the dispositions described above. If the court finds the defendant incompetent but restorable to competency, it may order continued treatment under subsection A of § 19.2-169.2 for additional six-month periods, provided a hearing pursuant to subsection E of § 19.2-169.1 is held at the completion of each such period and the defendant continues to be incompetent but restorable to competency in the foreseeable future.
C. Unless an incompetent defendant is charged with capital murder or the charges against an incompetent criminal defendant have been previously dismissed, charges against an unrestorably incompetent defendant shall be dismissed on the date upon which his sentence would have expired had he been convicted and received the maximum sentence for the crime charged, or on the date five years from the date of his arrest for such charges, whichever is sooner.
D. If the court orders an unrestorably incompetent defendant to be reviewed for commitment pursuant to § 37.2-904, it shall order the attorney for the Commonwealth in the jurisdiction wherein the defendant was charged and the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services to provide the Commitment Review Committee established pursuant to § 37.2-902 with any information relevant to the review, including, but not limited to: (i) a copy of the warrant or indictment, (ii) a copy of the defendant’s criminal record, (iii) information about the alleged crime, (iv) a copy of the competency report completed pursuant to § 19.2-169.1, and (v) a copy of the report prepared by the director of the defendant’s treating facility pursuant to this section. The court shall further order that the defendant be held in the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services for secure confinement and treatment until the Commitment Review Committee’s and Attorney General’s review and any subsequent hearing or trial are completed. If the court receives notice that the Attorney General has declined to file a petition for the commitment of an unrestorably incompetent defendant as a sexually violent predator after conducting a review pursuant to § 37.2-905, the court shall order that the defendant be released, committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, or certified pursuant to § 37.2-806.
E. In any case when an incompetent defendant is charged with capital murder, notwithstanding any other provision of this section, the charge shall not be dismissed and the court having jurisdiction over the capital murder case may order that the defendant receive continued treatment under subsection A of § 19.2-169.2 for additional six-month periods without limitation, provided that (i) a hearing pursuant to subsection E of § 19.2-169.1 is held at the completion of each such period, (ii) the defendant remains incompetent, (iii) the court finds continued treatment to be medically appropriate, and (iv) the defendant presents a danger to himself or others.
F. The attorney for the Commonwealth may bring charges that have been dismissed against the defendant when he is restored to competency.
 

COMMENT BY FORMER CHASE LAW SCHOOL PROFESSOR MARTY HUELSMANN: 

 

Good article. I did these cases for years as an assistant Kenton County Attorney. They would beat the Sheriff back from Eastern State Hospital. This is yet another Ronald Regan caused  problem. In my opinion we need to hospitalize for life a great number of these people. They can be medicated and live a human life. The vast majority should return to society under medication for life. They should be ordered to get treatment at a facility on a time set date. If they do not appear the sheriff should be notified and pick the person up and transport him/her to a facility for treatment.Kentucky is unwilling to fund such  the treatment of mental illness(like other states). Until we as a nation look at this from a human standpoint and fund it we will always have events like Virginia Tech.   

COMMISSION TO STUDY STATE PENSION SYSTEMS HAS FIRST MEETING, SETS GOALS

Wednesday, April 18th, 2007

State Representative Milward Dedman from Harrodsburg, has sent out a release concerning the activities of the Governor’s Blue Ribbon Commission on Public Employee Retirement Systems.  The Commission was appointed to study the financial basis for the state’s pension systems and to make recommendations for consideration by the legislature.  Rep. Dedman’s report says:
****
MILWARD DEDMAN, STATE REPRESENTATIVE 55th. District
Just attended the first meeting of the Governor’s Blue Ribbon Commission on the Public Employee Retirement Systems.  Today’s meeting was an organizational session.  The committee will be divided into three work groups.  The first will deal with the states current obligations and how to best fund these obligations.  The second will address benefits for future state employees in order to obtain a qualified workforce.  The third group will work with health benefits.
 There has been a website established to display materials, scheduling dates, contact information, and other important information regarding the business of the commission.  This site will be constantly updated and I hope you find it useful.  The address is http://finance.ky.gov/ourcabinet/attached+agencies/retcom.htm 
 The commission will meet once a month and the work groups will meet upon call of the chairs.  I know the importance of this issue and will work for the best interest of all state employees and retirees.  If you have comments please do not hesitate to contact me.
 
 

 
 

JEFFERSON COUNTY JUDGES PLACE CONDITIONS ON PRETRIAL RELEASE PROGRAM

Wednesday, April 18th, 2007

The Courier Journal reports that l7 judges have placed conditions on future use of pre-trial release program in Jefferson County.   The pre-trial release program not only saves the state a great deal of money, it also upholds the constitutional presumption of innocence.

The Judges in Jefferson County upset over program violations and lack of information being provided to the courts.
By Jason Riley  The Courier-Journal
Jefferson County District Court judges demanded changes yesterday to the state’s pretrial release program, which has allowed freed defendants to commit new crimes and ignore other rules.
The 17 judges voted to continue using the program, but only with “significant alterations,” Chief District Judge Audra Eckerle said.
“Everybody realizes the importance of the program and the potential danger to the community,” she said in an interview.
Their vote came after a Courier-Journal story exposed flaws in the Monitored Conditional Release Program, which frees some inmates without bond before trial, as long as they follow rules tailored to reflect their charges. The goal is to ease jail crowding.
Eckerle would not reveal the vote tally but said the judges want 13 changes or improvements made, including that they are notified as soon as a defendant violates a condition of release. That could include not checking with pretrial officers regularly.
“If they don’t report in, we want to know that day,” Eckerle said.
Defendants who violate conditions of their release are to be brought before a judge who can jail them until trial, raise their bond or do nothing.
Eckerle said the judges would meet again in a month to ensure changes have been made and decide if the program should continue.
Administrative Office of the Courts officials said The Courier-Journal story prompted them to review the program, and they have pledged to do whatever is necessary to fix the problems.
In all, 37 defendants in Jefferson County’s monitored pretrial release program violated conditions of their freedom, according to a court review after the newspaper’s story. That’s more than one-quarter of the defendants in the program.
Jason Nemes, director of the AOC, said he told the judges yesterday that mistakes have been made but the program would be fixed.
‘Glitches worked out?’
The AOC already has adopted or will adopt 10 of the 13 changes requested by district court, Nemes said in an interview. The other three require help from circuit clerks, the county attorney’s office and the judges.
“We’re doing everything we can,” said Nemes, who will meet with the Jefferson County attorney’s office on Thursday.
The program gives judges alternatives to jail or bail, including home incarceration; drug testing; mental health, drug or alcohol treatment; or checking in weekly with pretrial officers.
After yesterday’s meeting, District Judge Donald Armstrong said he agrees with the program’s goal but would support it only if the AOC corrects the problems.
“The question is: Do they have the glitches worked out?” Armstrong said.
Court files were not clearly marked, for example, so judges often couldn’t tell if a defendant was in the program and the nature of conditions, Armstrong said.
District judges now want case files stamped when a defendant is in the program, and the conditions must be written on the case jacket and noted in the computer system.
Nemes said he would meet with the circuit court clerk’s office to discuss that modification.
Changes demanded
Among the other changes the district court judges want:
The AOC must notify the victim in any domestic violence case before recommending a defendant for the program.
AOC staff must be available 24 hours a day to process defendants entering into and violating the program.
Failing to appear for a court date means ejection from the program.
AOC must monitor and interview defendants at scheduled appointments and never allow a defendant to sign in and leave without talking to anyone.
For about three months, the pretrial office in Jefferson County allowed defendants to check in at certain times by signing a sheet on a door without talking to a pretrial officer, the newspaper found.
The newspaper also discovered more than two dozen defendants who had been arrested while on pretrial release or had violated conditions of their release in the past year without judges and prosecutors being notified.
The Monitored Conditional Release Program began in July 2005 in Jefferson County and has spread statewide.

Whitesburg goes wet.

Wednesday, April 18th, 2007

WHITESBURG, Ky.
Residents of an eastern Kentucky town voted 2-1 Tuesday in favor of legalizing alcohol sales in some restaurants.
More than 400 people voted in favor of allowing sales of liquor in Whitesburg restaurants that can serve at least 100 people with at least 70 percent of sales from food. Fewer than 200 voted no.
The solid wall of  prohibition against liquor sales east of Lexington has increasingly been broken through in Eastern Ky.

U.S. SUPREME COURT Backs Ban on Late-Term Abortion Procedure

Wednesday, April 18th, 2007

By William Branigin and Robert Barnes   Washington Post   , April 18, 2007
The Supreme Court today narrowly upheld a nationwide ban on a controversial late-term abortion procedure, handing a major victory to President Bush and his social conservative allies.
In a 5-4 vote, the court ruled that the Partial Birth Abortion Ban Act, which Bush signed into law in 2003, does not violate a woman’s right to have an abortion, which has been the law of the land since the landmark 1973 ruling in Roe v. Wade.
The dramatic decision delivered to abortion opponents the promise of a more conservative court reconstituted by Bush.
The ruling marked the first time that the court has upheld a ban on a specific abortion procedure. It also marked a departure from the Supreme Court’s past practice of requiring a “health exception” in laws governing abortion to allow the procedure when a woman’s health would otherwise be at risk.
Writing for the majority, Justice Anthony M. Kennedy said opponents of the ban “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.” Nor, he wrote, have they shown that it is “void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception.”
Justice Ruth Bader Ginsburg, now the only woman on the court, read a powerful dissent to a stone-silent courtroom that said the “alarming decision” was an effort to “chip away” at a woman’s right to abortion.
Congress passed the Partial Birth Abortion Ban Act following a decision by the court in 2000 to strike down a similar ban from Nebraska because it did not include an exception for doctors to perform the procedure to protect the health of the woman. The court at that time ruled 5-4 that the law imposed an undue burden on women choosing to have an abortion.
But today’s court, with the significant addition of Justice Samuel A. Alito Jr. replacing retired justice Sandra Day O’Connor, accepted Congress’s view that the late-term abortion procedure is unneeded.
“The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives,” Kennedy wrote.
The case did not question the Roe v. Wade decision, although two justices who joined the majority — Clarence Thomas and Antonin Scalia — repeated in a concurring opinion their belief that Roe”has no basis in the Constitution.”
Kennedy’s majority opinion described in detail the gruesome nature of the “intact dilation and extraction” technique banned in the act, and the affect it may later have on a woman who decided to abort using the method. The procedure itself is “laden with the power to devalue human life,” he wrote.
“It is self-evident that a mother who comes to regret her choice and to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form,” Kennedy wrote.
Ginsburg responded that the majority’s solution was not to insure that the woman is informed of the details of the procedure.
“Instead, the court shields women by denying them any choice in the matter,” she said. “This way of protecting women recalls ancient notions about women’s place in society and under the Constitution — ideas that have long since been discredited.”
The ruling was welcome news to abortion opponents who have placed their hopes in Bush’s conservative nominees to the Supreme Court. Making up today’s majority, in addition to Kennedy, were Bush’s two picks — Chief Justice John G. Roberts Jr. and Alito — as well as two of the court’s staunchest conservatives: Scalia and Thomas. Kennedy, who joined the court in 1988 after being nominated by President Ronald Reagan, has long been viewed as a swing vote on key issues.
Joining Ginsburg in her dissenting opinion were Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.
“Today’s decision is alarming,” Ginsburg wrote for the minority. “It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. . . . And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”
She added: “Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices.”
The 2003 ban has never taken effect because of court challenges. Six federal courts ruled that the law impermissibly restricted a woman’s constitutional right to have an abortion.
Kennedy wrote in his opinion that of the approximately 1.3 million abortions performed each year in the United States, 85 to 90 percent are done during the first trimester of pregnancy, meaning that they are not regulated by the 2003 law.
The decision was welcomed warmly by abortion opponents, including Rep. John A. Boehner (R-Ohio), the House minority leader. “I applaud the Court for its ruling today, and my hope is that it sets the stage for further progress in the fight to ensure our nation’s laws respect the sanctity of unborn human life,” he said in a statement.
But the ruling came under sharp attack from abortion-rights and civil liberties advocates, who warned that it could lead eventually to the overturning of Roe v. Wade.
In a statement, Ralph G. Neas, president of the liberal group People for the American Way, said the ruling proves that “the confirmation of right-wing nominees to the Supreme Court has disastrous consequences for Americans’ rights and liberties.” He said the replacement last year of O’Connor by the “ultraconservative” Alito “has brought the Court to the brink of judicial disaster.”
“Today’s decision will energize a crucial public conversation with presidential candidates about the importance of future Supreme Court justices,” Neas said.
E. Christopher Murray, a civil liberties attorney in New York, called the ruling “a really disturbing development for abortion rights advocates.” The court “is retreating from its previous decision striking down a similar ban that did not have exceptions for the health of the mother,” he said in a statement. “Thus, the new justices on the court, Roberts and Alito, have demonstrated a willingness to go against the court’s prior precedents, signaling that Roe v. Wade is susceptible to being overturned.”
Today’s ruling came on two combined cases, Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America.

Judicial Nominating Commission releases names of JAMES HOWARD, MARCIA SMITH and SUSAN WILSON to fill vacancy on Kentucky Court of Appeals

Wednesday, April 18th, 2007

The Judicial Nominating Commission, led by Chief Justice Joseph E. Lambert, met April 16 at the Capitol to choose nominees to fill a vacant position on the Kentucky Court of Appeals. The nominees for the 3rd Appellate District, Division 1, are attorneys James I. Howard, Marcia A. Smith and Susan Michele Wilson. 

Attorney James I. Howard resides in Edmonton and currently serves as a special judge on the Kentucky Court of Appeals. He was previously affiliated with Hensley, Ross & Howard. He earned a bachelor’s degree from Asbury College and a juris doctor from Duke University. 

Attorney Marcia A. Smith currently practices law in Corbin. 

Attorney Susan Michele Wilson resides in Stearns and has served as the assistant county attorney for McCreary County since 1990. She earned a bachelor’s degree from Lincoln Memorial University and a juris doctor from the Northern Kentucky University Chase College of Law. 

The appointee to this vacancy will serve until one of the candidates for this position wins the November general election and takes the oath of office. According to the Kentucky Secretary of State’s Web site, six candidates have filed to run for this vacant judgeship in the May primary: Clay M. Bishop Jr., Michael O. Caperton, Larry E. Conley, Jeff Eastham, Paul F. Henderson and James I. Howard. 

The 3rd Appellate District consists of Adair, Bell, Casey, Clay, Clinton, Cumberland, Estill, Garrard, Green, Jackson, Knox, Laurel, Lee, Leslie, Lincoln, Marion, McCreary, Metcalfe, Monroe, Nelson, Pulaski, Rockcastle, Russell, Taylor, Washington, Wayne and Whitley counties. 

Kentucky Constitution Addresses Judicial Vacancies
Section 118 of the Constitution of Kentucky imposes on the Governor the duty of appointing an interim judge when a judicial vacancy occurs. Section 118 also mandates that it is the responsibility of the Chief Justice to convene and preside over meetings of a Judicial Nominating Commission to select three qualified applicants from which the Governor must appoint. For circuit judges and district judges, the nominating commissions are local and the members selected from within the judicial circuit or district. A statewide nominating commission is convened to fill vacancies on the Court of Appeals or the Supreme Court. 

Judicial Nominating Commission Process
When a judicial vacancy occurs, the executive secretary of the Judicial Nominating Commission sends a notice of vacancy to all attorneys in the judicial circuit or the judicial district affected. Attorneys can recommend someone or nominate themselves. Once that occurs, the individuals interested in the position return a questionnaire to the Office of Chief Justice. The Chief Justice then meets with the Judicial Nominating Commission to choose three nominees. The names of the applicants are not released. However, once the Judicial Nominating Commission has determined the names of the three finalists to be sent to the governor for selection, the Judicial Branch makes the names available to the public and the media. The credentials of these three nominees are sent to Gov. Ernie Fletcher for review. When the governor appoints the replacement, his office makes the announcement. 

Kentucky Court of Appeals
The Kentucky Court of Appeals, along with the Supreme Court of Kentucky, was formed after the 1975 enactment of the Judicial Article that created Kentucky’s unified court system. Fourteen judges, two elected from each of the seven appellate districts, serve for eight-year terms. With a few exceptions, most cases appealed from Circuit Court go to the Court of Appeals. The case is reviewed, not retried, at the appeals level, with attorneys presenting the legal issues to the court for a decision. Court of Appeals judges are divided into panels of three to review and decide cases, with the majority deciding the outcome. The panels do not sit permanently in one location, but move about the state to hear appeals. When the Court of Appeals publishes its rulings on cases, those rulings become the governing case law for all similar cases in the trial courts of Kentucky. 

The Administrative Office of the Courts is the operational arm of the Kentucky Court of Justice and supports the activities of more than 3,500 court system employees, including the elected offices of justices, judges and circuit court clerks. 

Border not stopping prosecutions. More cooperation between Mexico and U.S. authorities

Tuesday, April 17th, 2007

By JULIANA BARBASSA  Monterey Herald
 

SAN FRANCISCOCriminals have long fled across borders to escape prosecution, but growing cross-border collaboration between California and Mexico is landing more of these fugitives in court in their native country.
In the past, criminal suspects like Alvaro Gudino, charged in the shooting deaths of two men in Santa Rosa, would have fallen through the cracks. Instead, the increased international cooperation has landed him in a Mexican jail, where he waits to be tried for the 1995 murders.
Little-known Mexican law|
Since 1980, California has led the nation in pursuing cases that rely on a little-known Mexican law which allows the American justice system to seek prosecution in Mexico of citizens suspected of committing crimes in the United States. State and local authorities have sought convictions in 277 cases with help from prosecutors in Mexico.
”It’s something that’s been recognized by both governments,” said Val R. Jimenez, special agent in charge of foreign prosecution and law enforcement for the California Attorney General’s Office. ”You can’t share a border and not be able to communicate and work together.”
Although the law has been on the books since the 1930s, experts agree the number of prosecutions based on Article 4 of the Mexican penal code has been going up. With a growing immigrant population lending a transnational dimension to crimes ranging from drug trafficking to murder, U.S. law enforcement authorities have found that relying on their counterparts across the border makes sense.
Extradition of Mexicans to the U.S. and vice versa are also up, but there can be advantages to eschewing that route in favor of trying a Mexican citizen in a Mexican court, authorities said.
Other countries, for example, sometimes balk at extraditing suspects to the United States, where they might be exposed to the death penalty. Extradition and the trials that follow, with their need for translators and other services, can also be much more expensive than a trial in Mexico, said Jimenez.
And the Mexican system can function just as well, said Jimenez, who was in Mexico City on Monday with an eight-member team of California law enforcement officials meeting with their Mexican counterparts.
”We’re pretty confident that when someone gets convicted here, justice will be served,” he said.
Long-standing case|
Relationships such as they ones they were in Mexico to forge have made not only joint Article 4 prosecutions, but international child abduction cases, drug trafficking investigations and other crimes with a cross-border component increasingly successful.
Gudino was one of the fugitives caught with the help of this kind of purposeful cooperation. After he was arrested in Guadalajara for allegedly assaulting his father, the contact with the Mexican criminal system triggered the long-standing case against him in the United States.
Now he’s in jail in Morelia, the capital of his native state of Michoacan, awaiting a trial date in the deaths of Hernandez and Cuevas about 12 years ago.
”It’s a great avenue to have,” said Sonoma County Sheriff’s Sgt. Dennis O’Leary. ”Otherwise the suspect may never be brought to justice, and the case may never be heard.”
The system has its critics. Among them are the families of two people Gudino is charged with killing, Tony Hernandez, 17, and Marcos Cuevas, 20. They are glad Gudino is being brought to justice, but would prefer it were happening in an American court.
”It’s better than nothing,” said Jose Rivera, Cuevas’ cousin and Hernandez’s best friend at the time of his death. ”But the right thing would be for him to go through court here, and be punished here, so he could pay for what he did where he did it.”
Rivera is preparing to go to Mexico as soon as he gets called to testify. He witnessed the shooting, and described it as a case of bad blood among former friends that turned deadly when the suspect lost his temper.
Two days later, the Sheriff’s Department issued a warrant for Gudino’s arrest. When it was suspected he’d returned to Mexico, they issued a warrant meant to prevent his flight, but it was too late, said O’Leary.
Gudino’s mother and brother live in Santa Rosa, but their phone number is unlisted and they could not be reached for comment.
Gudino ”hid like a rat in Mexico, and never had to answer for what he did,” said Hernandez’s mother, Guadalupe Guisar, a farmworker who picks grapes in Sonoma. She remembers her 17-year-old son as a hardworking teenager who worked alongside her during school vacations and dreamed of being a car mechanic.
Lighter sentence a concern|
The victims’ family members in the United States are afraid that Gudino’s family could spend a lot of money — both on a top lawyer and possibly on bribes — to get him off on a lighter sentence than he would receive in an American court.
But experts who have observed the increased use of Article 4, and the better ties between Mexican and American said the fact that Gudino’s case is proceeding represents a victory.
Investigations with international ramifications can be hampered by differences in language and criminal codes or a lack of mutual trust. But networks such as the one built by Jimenez and others in California’s criminal justice system have helped overcome such hurdles, said David Shirk, director of the Trans-Border Institute and the Justice in Mexico Project at the University of San Diego.
”For police anywhere in the country there are some lessons to be learned about how to deal with crime that ties back to Mexico, Vietnam, El Salvador,” he said. ”This is a unique prosecutorial mechanism that is especially relied on in California, but is beginning to be used in other parts of the country as the information gets out and other prosecutors become aware of this possibility.”
Guisar, whose world fell apart when her youngest son was killed, said she would prefer to see Gudino tried in California, where she could follow the proceedings closely.

Governor Fletcher Directs Flags at Half Staff in Remembrance of the Victims of the Virginia Tech Tragedy

Tuesday, April 17th, 2007

 Tuesday, April 17, 2007
 
Governor Ernie Fletcher has directed that flags at all state office buildings be lowered to half-staff in remembrance of the victims of Monday’s tragedy at Virginia Tech. The call for flags to be lowered follows a national directive from President George W. Bush.

SUPREME COURT DECISION UPSETS REALTORS, PLEASES BANKS. RULING SUPPORTS FEDERAL OVERSIGHT OF BANKS SUBSIDIARIES

Tuesday, April 17th, 2007

Ruling does not preempt state laws as court finds that the 10th Amendment, is not implicated here.
 
By Glenn Roberts Jr.  Inman News   April 17, 2007
 

Mortgage lending subsidiaries of federally chartered banks are subject to federal oversight, not state regulations, the Supreme Court ruled in a 5-3 decision today.
 

Michigan regulators had sought to block the operations of Wachovia Mortgage Co., a subsidiary of Wachovia Bank, after the subsidiary surrendered its registration in Michigan. State law required bank subsidiaries to register with a state regulatory agency and submit to state supervision.
 

Wachovia contested these regulations in a lawsuit, charging that the state requirements do not apply because its subsidiary is regulated by the National Bank Act and the U.S. Office of the Comptroller of the Currency. The lower courts had held that federal regulations preempted state regulations in the oversight of a federally chartered banking company’s subsidiary.
 

Justice Ruth Bader Ginsburg delivered the court’s opinion in Watters v. Wachovia, and she was joined by Anthony Kennedy, David Hackett Souter, Stephen Breyer and Samuel Alito. Justices John Paul Stevens, John Roberts and Antonin Scalia dissented.
 

In its decision, the Supreme Court found that federal banking law provides that “A nation bank may engage in real estate lending through an operating subsidiary, subject to the same terms and conditions that govern the bank itself; that power cannot be significantly impaired or impeded by state law.”
 

Also, the decision states, “This court has never held that the (National Banking Act’s) preemptive reach extends only to a national bank itself,” and “the court has treated operating subsidiaries as equivalent to national banks with respect to powers exercised under federal law.”
 

While lawyers for Linda A. Watters, commissioner for the Michigan Office of Insurance and Financial Services, argued that an OCC rule related to the preemption of state laws violated the 10th Amendment, the court found that the amendment “is not implicated here.”
 

In the dissenting opinion, Stevens stated, “Congress has enacted no legislation immunizing national bank subsidiaries from compliance with non-discriminatory state laws regulating the business activities of mortgage brokers and lenders,” and found the OCC’s rules to be “an agency’s incorrect determination that the laws of a sovereign state must yield to federal power.”
 

The court’s decision, he said, will have a “significant impact … on the federal-state balance and the dual banking system.”
 

The American Bankers Association today announced its support for the Supreme Court decision. Edward L. Yingling, ABA president and CEO, said in a statement, “The court’s decision reaffirms that, for national banks, the business of banking — whether through the bank itself or an operating subsidiary — is regulated by the OCC.”
 

He added, “Avoiding a patchwork of duplicative and conflicting federal and state regulation makes it easier for national banks to grant credit to customers across state lines and preserves our industry’s competitive structure. It’s important to note that operating subsidiaries are subject to the full range of federal consumer protection laws that apply to national banks. Today’s decision puts the focus back where it belongs. Instead of being distracted by who is enforcing which law, now the industry can focus on the more important issue of compliance with the law itself.?
 

The National Association of Realtors, meanwhile, had earlier filed a brief with the Sixth Court of Appeals to support state regulation of national banks’ subsidiaries and oppose preemption by the OCC.
 

Pat Vredevoogd Combs, president of the Realtor trade group, said in a statement that she is disappointed with the Supreme Court’s decision.
 

“Any persons or organizations that are concerned with state statutes and regulations, and the ability of the federal government to preempt these state regulations, should find today’s opinion disconcerting. NAR continues to believe that Congress did not authorize the OCC to exempt these mortgage lenders and other state-chartered corporations, wholly owned by national banks, from complying with certain state laws,” she stated.
 

“The Court’s ruling to the contrary gives a tremendous competitive advantage to federally chartered banks over financial and non-financial competitors, increasing the value of the federal charter at the expense of state licensing, marketplace competition and potentially even consumer protection measures. The problems consumers face in the subprime mortgage market illustrate why it is important to retain and strengthen, rather than weaken, state consumer protection laws.
 

“With national banks now operating in the insurance and securities industries, and continuing their push to enter into real estate transactions, I am concerned about the implications of this ruling for our industry. This could mean that, should banks ever be permitted to broker real estate, which Justice Stevens’ dissent identifies as a possibility, the OCC may likewise claim a similar exemption from state real estate regulations for operating subsidiaries engaged in brokerage,” Vredevoogd Combs stated.
 

The Realtor association has aggressively lobbied to keep federal banks out of the business of real estate brokerage, charging that this would put companies that lack backing from big banks at a disadvantage. Supporters of national banks’ entry into the business of real estate brokerage have countered that such a move could inject new competition in the industry and point out that many brokerage companies operate lending divisions or have affiliations with lenders.
 

Michigan regulators were supported by all other states, which have said that state regulators are more capable of protecting consumers against predatory lending.

THE TRUTH DOES NOT MATTER. THE SYSTEM MUST PREVAIL.

Friday, April 13th, 2007

After a verdict has been rendered, it is understandable difficult for a new trial to be granted when a witness recants their prior testimony.  However, sometimes the system can be blind to its ultimate duty to provide justice.  Our cars come with warranties, our homes come with warranties, our televsions and I-pods come with warranties, why shouldn’t our criminal justice system, which literally makes life and death decisions, should not also have a warranty.

Under Kentucky law, the trial judge is the ultimate decision maker on the issue of granting a new trial.  His decision is given great deference by the appealate courts. Perhaps there ought to be better procedures to review convictions that rely only on eyewitness identifications which are later recanted.   The following New York case provides convincing examples of police duress and improper identification procedures which convicted a man, and yet the system is given the benefit of doubt, not the defendant.   

By PAUL von ZIELBAUER New York Times , April 13, 2007
After five young people identified him in court as the murderer, Fernando Bermudez was convicted in 1992 of killing a 16-year-old youth in Greenwich Village. No other evidence — a gun, a fingerprint or a clear motive — tied him to the crime.
Skip to next paragraph Witness Recantation Statements
Okpa Iyesi (PDF)
Witness and friend of Raymond Blount, the victim. (July 23, 1993)
Frank Kent (PDF)
Witness and friend of Mr. Blount. (July 22, 1993)
Efrain Lopez (PDF)
Witness, punched by Mr. Blount prior to the shooting. (Aug. 6, 1993)
Michael Thompson (PDF)
Witness and friend of Mr. Blount. (July 14, 1993)
Jamie Velasquez (PDF)
Witness and friend of Mr. Blount. (Aug. 21, 1993)
He has been jailed ever since, despite the fact that for 14 years, the same five witnesses have insisted their testimony was false.

The five gave sworn statements in 1993 that Mr. Bermudez was not the killer and that their testimony had been manipulated by the police and prosecutors. They did so at the risk of being charged with perjury, and they have stuck with those accounts even as they have approached middle age, taken on steady jobs and raised families.

Nonetheless, the recantations have had little impact. The same judicial system that once relied on the witnesses now no longer believes them.

“What does it take, with the system that we have, to reinvestigate a wrongful conviction?? said Scott Christianson, a supporter of Mr. Bermudez and a former state criminal justice official. “It’s really beyond me.?

The reason is based in the prevailing wisdom of the American justice system, which views recantations as untrustworthy, acts not of conscience, but of sympathy or bribery or coercion. That view is so deeply ingrained that one judge, rejecting one of Mr. Bermudez’s appeals in 1995, said candidly that five recantations were simply too many to believe.

In recent years, though, the reliability of recantations is being re-evaluated, driven in part by the growing number of cases in which DNA evidence has cleared people who had been locked behind bars for years. In several recent cases, DNA evidence has shown not only that people were innocent, but that witnesses who had recanted really were telling the truth.

“Blanket suspicion of recantations is clearly not warranted,? said Rob Warden, executive director of the Center on Wrongful Convictions at the Northwestern University School of Law. “We know now that many of the traditional precepts that have been held by the courts are not warranted, and yet the courts continue to cling to them.?

Mr. Bermudez, 38, a husband and father of three, has no exculpatory DNA evidence in his corner. He is serving a sentence of 23 years to life and has watched appeal after appeal fail.

Yet he has never wavered from the account he first told investigators: He did not know the victim, Raymond Blount, he had no motive to shoot him and he was elsewhere with friends at the time of the murder in August 1991.

Two friends who were with Mr. Bermudez that night have given accounts that support his own. Their versions also have not wavered since the crime.

Mr. Bermudez’s supporters say he was a victim of the crime wave that beset New York in the early 1990s. They say that the police and prosecutors, overwhelmed in the face of a near record number of murders, seized on bad evidence, settled for easy answers, ignored looming contradictions and bullied impressionable young witnesses into testifying against Mr. Bermudez.

The Manhattan district attorney’s office rejects those assertions. It notes that the conviction of Mr. Bermudez has been upheld several times, most recently by a federal court in 2006.

“A federal magistrate found after an extensive hearing,? said Barbara Thompson, a spokeswoman for the district attorney, Robert M. Morgenthau, “that the recantations of the eyewitnesses were incredible, that the conduct of the trial prosecutor with respect to the witnesses was proper and that the defendant’s due process rights had not been violated.?

The same magistrate judge, however, noted missteps in the case, among them allowing the people who identified Mr. Bermudez as the killer to view his mug shot as a group, a prejudicial blunder that in New York is nearly always grounds for ordering a retrial. The police also failed to look for the man whom the main witness had first implicated.

The police investigation was led by a detective who had been involved in an earlier homicide case in which a young man had been mistakenly identified as a killer only to have his conviction overturned. The detective was suspended from the force after being charged in a drunken-driving accident in 2004 in which two women were critically injured.

Mr. Bermudez’s situation has attracted a legion of supporters, including lawyers, law professors, a retired detective and a former federal judge. “The evidence powerfully shows that Bermudez is innocent,? said Bennett L. Gershman, a professor at Pace University Law School.

Mr. Bermudez’s hopes now rest on an appeal before the United States Court of Appeals for the Second Circuit. In an interview at Sing Sing prison, he recalled the faith he once had in the system.

“I believed that it was as simple as telling the truth,? he said, “and the truth prevailing.?

Now, he says, the truth doesn’t matter.

The Recantations

Years later, one witness, Mr. Thompson, says he still struggles to explain why he testified against Mr. Bermudez.

“When you’re not educated or you just don’t know, when the cops tell you to do something, you do it,? said Mr. Thompson, 34, a married father who works at a private clinic for the mentally ill. “You figure they got the guy, he must have done it.?

Another witness, Okpa Iyesi, is now an elder at a church in Maryland. In his recantation, he said the prosecutor had lied to him, telling him that ballistics evidence already pointed to Mr. Bermudez as the killer, according to court records.

Ms. Velazquez, the witness, said she told Mr. Rodriguez on the eve of the trial that she did not think Mr. Bermudez was the killer, the court records show.

And Mr. Lopez said he knew all along that Mr. Bermudez was not Wool Lou. But he said the authorities threatened to charge him with murder if he didn’t cooperate. And he said Detective Massanova had made it obvious that he wanted him to pick out the Bermudez photograph.

“He didn’t tell me, ‘Pick him,’ but he was like, pick him,? Mr. Lopez said in an interview.

Detective Massanova, in an interview, denied coaxing Mr. Lopez. He and the prosecutor have denied any improprieties.

Some judges have ruled that recantations should be given more weight in cases where the original testimony constituted the only evidence. Few trials, though, have had five witnesses identify someone as a murderer, only to attest later that their testimony had been false. The very number upset Justice John A. K. Bradley, the Bermudez trial judge, who dismissed the first motion for a retrial without a hearing.

“It strains credulity to believe that five unshaken trial witnesses would suddenly claim that they had testified falsely under oath,? he wrote in a 1995 decision. Had Mr. Bermudez presented fewer than five, he said, it would have been more believable.

 

In 1997, a state appeals court, citing “the inherent unreliability of recantations,? affirmed the conviction.

Appeals Pile Up

At first blush, the Bermudez case seems fertile ground for appeal, with a last-minute delivery of evidence, a conviction that relied on testimony from teenagers with legal problems of their own, and police work that the defense has characterized as slapdash.

But appeals courts tend not to look at mistakes in the aggregate. Rather, they consider whether any one error represents a violation of an appellant’s constitutional rights or a basic miscarriage of justice.

Appeals courts also generally limit their reviews to what happened on the record at trial and avoid delving into evidence that was not presented to a jury. It is a process that favors appellants whose lawyers aggressively raise objections and exploit gaps in evidence at trial, something Mr. Bermudez’s lawyer, Mr. Kenyon, acknowledges he did not do enough of — in part, he said, because the family lacked the money to fully investigate the case.

In 2002, though, a federal magistrate, Kevin Nathaniel Fox, finally agreed to hear testimony from the five recanting witnesses, as well as from the prosecutor, police detectives and Mr. Bermudez’s alibi witnesses.

He concluded that the prosecutor’s summation had included improper remarks, and that the police never should have allowed witnesses to discuss the mug shot as a group, a blunder he called “impermissibly suggestive and conducive to irreparable misidentification.?

But he discounted the recantations as unbelievable. He rejected the account of one witness because, he said, her testimony reflected a more precise recollection of events than she had exhibited at trial. On Judge Fox’s recommendation, a judge in Federal District Court, Loretta A. Preska, turned down Mr. Bermudez’s bid.

Now Mr. Bermudez awaits the judgment on his latest, perhaps final, appeal.

He has a clean disciplinary record and spends evenings reading legal briefs. His wife, whom he met through correspondence, and his children visit him every few weeks. In 15 years his story has not changed.

“I sometimes have to manufacture hope,? he said, “because this is a very depressing, dangerous, evil place.?

Detective Massanova is now battling his own problems. He is on trial on charges related to the off-duty car accident in 2004 that injured the two women. In an interview, he declined to say whether he still thought Mr. Bermudez killed Mr. Blount.

“Bermudez is in jail because a number of people said he was the shooter,? he said. “I can’t use a lie detector test on everybody who comes in

Kentucky Law on Recantation
Thacker v. Com., 453 S.W.2d 566 (Ky., 1970)

 

 After the trial and conviction, however, the victim and her brother, sister and mother all recanted their testimony, and made affidavits that they had conspired to charge falsely the appellant in order to get rid of him. On the basis of these affidavits the appellant moved for a new trial. The motion was overruled, and the appellant’s first complaint here is of that ruling.

The appellant seeks to apply the rule that a new trial will be granted on newly discovered evidence if it is apparent that a different result would have been reached at the trial had the new evidence then been available. However, we think it is clear that the foregoing rule does not apply to the situation of recanted testimony of principal witnesses. If it did, the accused always would get a new trial where the prosecuting witness recanted her testimony, because it would be apparent that with the new testimony, that the accused was not guilty, the result of the trial would be different.

        Actually, there are special rules for situations of recanted testimony. The general rules are that recanting testimony is viewed with suspicion; mere recantation of testimony does not alone require the granting of a new trial; only in extraordinary and unusual circumstances will a new trial be granted because of recanting statements; such statements will form the basis for a new trial only when the court is satisfied of their truth; the trial judge is in the best position to make the determination because he has observed the witnesses and can often discern and assay the incidents, the influences and the motives that prompted the recantation; and his rejection of the recanting testimony will not lightly be set aside by an appellate court. See Annotations 158 A.L.R. 1062; 74 A.L.R. 757; 33 A.L.R. 550.

 

       There have been brought to our attention only two Kentucky cases in which this court reversed the ruling of a trial court in denying a new trial sought on a recantation of testimony by principal prosecuting witnesses. In one, Shepherd v. Commonwealth, 267 Ky. 195, 101 S.W.2d 918, this court found that the original testimony was unnatural, was contradicted by physical facts and other evidence, and was opposed by evidence substantial in quality and quantity, so as to have been of border-line probative value to begin with. In the other case, Mullins v. Commonwealth, Ky., 375 S.W.2d 832, the circumstances were such as to cast some doubt of the truth of the original testimony, and the Attorney General, on the review of the order denying the new trial, indicated his feeling that fairness required the granting of a new trial.

Page 569

Williams v. Com., 569 S.W.2d 139 (Ky., 1978)

 …we cannot say as a matter of law that Pettyjohn’s testimony incriminating Charles was perjured merely because it contradicted the testimony given by him prior to the recess at the first trial. The fact of the matter is that just as in most cases involving the recantation, after trial, of testimony given during trial, we simply do not know and have no way of knowing which story is correct and which story is false.

 

Newkirk v. Com., 937 S.W.2d 690 (Ky., 1996)

 

 Permitting the appellant to impeach the child victim’s credibility on the basis of a previous recantation without also allowing the Commonwealth to present testimony explaining the phenomenon of recantation gives the alleged perpetrator an unfair advantage to exploit the process of how some child sexual abuse victims respond to abuse. Dr. Sullivan’s rebuttal testimony is akin to that Reed v. Commonwealth, Ky., 738 S.W.2d 818, 821 (1987) in which this court held that when a witness’s credibility has been attacked by charges of recent fabrication, rebuttal evidence may be introduced to rehabilitate the credibility of the witness. This court also held that the opinion of an expert on the ultimate issue is admissible where such evidence assists the trier of fact. Carpenter v. Commonwealth, Ky., 771 S.W.2d 822, 825 (1989).

The experts testified that recantation is not used to determine whether sexual abuse had occurred or not, but is considered at the treatment stage. The experts further testified that most lay persons would not understand the phenomenon of recantation. Dr. Sullivan testified that recantation is “widely accepted” in the field of psychiatry. He described recantation as being recognized for “decades,” but that the research in the area had taken off in the last 15 to 20 years. Lane Veltcamp, a licensed clinical social worker and child psychology professor at University of Kentucky who has published a book on child abuse and neglect testified that recantation is “something we see on a regular basis” and is “accepted across the country as something frequently seen in children who have been abused.” He stated that recantation has been recognized since the mid-1970′s and is a regular topic at conferences across the country. Sally Lawson Brensale, Ph.D., a licensed clinical psychologist who has attended and presented at numerous child abuse conferences, testified that recantation is “common,”

Page 700

that it is “certainly accepted” in her field, and that it has been recognized in the field of psychology since the mid- or late-1970′s.

        Following this lengthy hearing, of exactly the type required in Mitchell, the trial court granted the Commonwealth’s motion to allow testimony regarding recantation for the limited purpose of rebutting the victim’s testimony based on her recantation of the abuse allegations. The trial court determined that the phenomenon of recantation enjoyed general acceptance within the psychiatric and psychological communities and noted that numerous courts have allowed an expert to testify in rebuttal to explain why a child recants. He further found that testimony regarding recantation would assist the jury in understanding the possible behavior of a child victim of sexual abuse. Thus, he correctly determined that the testimony met the requirements of KRE 702. The appellant failed to present any evidence to the contrary.

        The standard of review on appeal is whether the trial court abused his or her discretion in deciding the admissibility of the evidence. Mitchell at 102. The trial court did not abuse his discretion in admitting the rebuttal testimony of Dr. Sullivan.

        Other jurisdictions have allowed the admission of expert testimony to explain in general terms, for the limited purpose of rebutting an attack on the victim’s credibility, why an alleged victim of sexual abuse might recant. Davenport v. State, 806 P.2d 655, 659 (Okl.Cr.1991) (“Numerous courts have allowed an expert to testify in rebuttal to explain … why a child recants.”) and cases cited therein.

        As stated State v. Foret, 628 So.2d 1116, 1130 (La.1993), which quotes from Goldstein, “Credibility and Incredibility: the Psychiatric Examination of the Complaining witness,” 137 Am.J.Psychia. 1238, 1240 (1980):

The expert testimony on why victims might recant or delay reporting is being offered to rebut attacks on the victim’s credibility. So long as the expert limits the testimony to general characteristics that would explain delays in reporting, recantations, and omissions of details, the testimony will not “substitute [the expert's] estimation of credibility for that of the jury. Rather, it is to provide a scientific perspective for the jury according to which it can evaluate the complainant’s testimony for itself.”

        Expert testimony explaining the phenomenon of recantation by some victims of child sexual abuse should be admissible for the limited purpose of rebutting an attack on the child victim’s credibility, if the expert testimony can meet the requirements for admissibility set forth in KRE 702 and Mitchell, supra. Any such testimony should be preceded by a limiting instruction to the effect that the expert’s testimony is not intended and should not be used to determine whether the victim’s sexual abuse allegation is true.

        GRAVES and WINTERSHEIMER, JJ., join this dissent.

Rule 10.02. Motion for new trial.                              

Upon motion of a defendant, the court may grant a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice. If trial was by the court without a jury, the court may vacate the judgment, take additional testimony and direct the entry of a new judgment.

Not later than ten (10) days after return of the verdict, the court on its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a defendant, and in the order shall specify the grounds therefor.
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Annotations:
 

KY     Collins v. Commonwealth of Kentucky, 951 S.W.2d 569 (Ky. 05/22/1997) RCr 10.02 permits a trial court to grant a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of Justice.
 

Granting a new trial is within the discretion of the trial court, and such is disfavored when the grounds are newly discovered evidence which is merely cumulative or impeaching in nature. Epperson v. Commonwealth, Ky., 809 S.W.2d 835 (1990).

 

Newly discovered evidence “must be of such decisive value or force that it would with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted.” Coots v. Commonwealth, Ky., 418 S.W.2d 752, 754 (1967).

 

 Further, a motion for new trial based upon newly discovered evidence must be accompanied by an affidavit showing that Appellant exercised sufficient diligence to obtain the evidence prior to his trial. Wheeler v. Commonwealth, Ky., 395 S.W.2d 569 (1965).
 

KY     [U] Sanchez v. Commonwealth, No. 2003-CA-002137-MR (Ky.App. 01/21/2005) Sanchez actually argues in his brief that the court should have granted him a new trial. However, he did not make a motion for a new trial pursuant to RCr 10.02 following his trial. Therefore, we assume that Sanchez means that the court should have granted his motion for a mistrial.

KY     [U] Johnson v. Commonwealth, No. No 2003-CA-002745-MR (Ky.App. 04/08/2005) RCr 10.02 permits the court, upon timely motion, to “grant a new trial for any cause which prevented the defendant from having a fair trial.” Newly discovered evidence that is reasonably certain to result in a different verdict is one such cause, but our Supreme Court has noted that a known witness who was unavailable at trial does not become “newly discovered” merely by becoming available after trial. Even if Unseld had agreed to testify at a new trial, therefore (he did not and would likely invoke his right not to incriminate himself), and even if his testimony were thought reasonably certain to alter the verdict (it is not, given the obvious credibility issues it would raise), the trial court would not have abused its discretion by denying Johnson’s motion. Apparently, moreover, Johnson declined to seek a continuance when it became apparent that Unseld would not be in court at trial. The trial court did not abuse its discretion by ruling, in effect, that his waiver of that less disruptive remedy precludes his resort to a more disruptive remedy now.


KY     [U] Wall v. Commonwealth, No. 2002-CA-002522-MR (Ky.App. 01/28/2005) Wall argues that his four pro se motions should be treated as RCr 10.02 motions which the trial court did initially. We agree that Wall’s “Motion to Vacate or Set Aside Judgment for Fraud Upon the Court” sets forth grounds that could be raised under a RCr 10.02 motion. However, we believe the trial court was correct in its interlocutory order of November 8, 2001, that this motion was untimely. The time restraints for filing a motion under RCr 10.02 are found in RCr 10.06(1) which mandates that a motion for new trial shall be served not later than five days after return of the verdict. The verdict in this case was entered on June 5, 2000. Wall’s motion pursuant to RCr 10.02 was filed on August 25, 2000, eighty-one days after the verdict was rendered. The Kentucky Supreme Court, in Shadowen v. Commonwealth, 82 S.W.3d 896 (Ky. 2002), held that a motion for a new trial under RCr 10.06 must be served not later than five days after the return of the verdict, exclusive of Saturday, Sundays and legal holidays. Where the requirements of this rule are not met, appellate courts are not obligated to address the merits of any allegations asserting error on a trial court’s ruling on a new trial motion. Pate v. Commonwealth, 134 S.W.3d 593 (Ky. 2004). Accordingly, any arguments raised on appeal that the trial court erred in not ruling on the RCr 10.02 motions are not properly before the Court and otherwise without merit.
 

KY     Bowling v. Commonwealth, No. 2003-SC-0645-MR (Ky. 11/18/2004)
Nor did the pendency of Appellant’s appeal of the trial court’s refusal to set aside the no-contact order toll the one-year period for filing the motion for a new trial. Meredith v. Commonwealth, Ky., 312 S.W.2d 460, 462 (1958) (“The remedy provided by CR 60.02(1, 2 and 3), must be sought within the year even though an appeal is being prosecuted.”); Wilson v. Commonwealth, Ky. App., 761 S.W.2d 182,184-85 (1988) (“The wisdom of permitting such an independent attack on the conviction [by way of RCr 10.02] to proceed without awaiting the disposition of the direct appeal should be apparent. In the first place, the independent attack may render the direct appeal unnecessary.”). Even without the procedural default, however, Appellant would not be entitled to relief, as his arguments lack merit.
KY     [U] Hillyard v. Commonwealth, No. 2003-CA-000610-MR (Ky.App. 07/16/2004) Our review of the record indicates that the issue of Bresler’s testimony was fully resolved by this Court in its 1986 Opinion affirming the trial court’s denial of Hillyard’s motion for a new trial pursuant to RCr 10.02 and 10.06. Our reconsideration of this claim is therefore barred by the doctrine of res judicata. See Richardson v. Brunner, Ky., 328 S.W.2d 530 (1959).
 

KY     Pate v. Commonwealth, 134 S.W.3d 593 (Ky. 05/20/2004) Appellant next claims that the trial court erred in denying his Motion for New Trial based on newly discovered evidence regarding the competency of Kathy Pate. Appellant brought the motion pursuant to RCr 10.02(1) and 10 .06(1), which permits a new trial on the basis of newly discovered evidence . Initially, we observe that Appellant’s Motion for a New Trial was filed on January 6, 2003, which was more than three months after the jury’s verdict on September 30, 2002 . Accordingly, Appellant’s appeal from the judgment of conviction is an improper vehicle to assert error in the trial court’s ruling upon his new trial motion and we thus will not address the merits of that allegation . However, because Appellant also asserts that the introduction of his wife’s testimony constituted palpable error justifying relief notwithstanding his failure to make a contemporaneous objection, we will briefly address that claim . Appellant asserts on appeal that he had discovered after his trial that his wife was incompetent based upon documents provided by her; however, these documents do not appear in the record before this court. Apparently, these documents demonstrate that Pate was diagnosed with bipolar affective disorder and borderline personality disorder. In its denial of Appellant’s new trial motion, the trial court held that Kathy Pate’s competency was not contested at trial and that challenging her competency after the trial was not sufficient to fall within the purview of the “new evidence” exception . In addition, given that the witness in question was Appellant’s own wife, we doubt that evidence relating to her mental condition would constitute “newly discovered” evidence, and we again observe that the failure to object to his wife’s testimony may have been trial strategy. In any event, however, as the purported “new evidence” has not been placed in the record before us, we defer to the determination of the trial court, and we perceive no palpable error justifying relief under RCr 10.26 .
 

KY     [U] Stiltner v. Commonwealth, No. 2003-SC-0519-TG (Ky. 10/21/2004)
Granting a new trial is within the discretion of the trial court, and such is disfavored when the grounds are newly discovered evidence which is merely cumulative or impeaching in nature. Epperson v. Commonwealth, Ky., 809 S.W.2d 835 (1990). Newly discovered evidence “must be of such decisive value or force that it would with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted.” Coots v. Commonwealth, Ky., 418 S.W.2d 752, 754 (1967). Further, a motion for new trial based upon newly discovered evidence must be accompanied by an affidavit showing that Appellant exercised sufficient diligence to obtain the evidence prior to his trial. Wheeler v. Commonwealth, Ky., 395 S.W.2d 569 (1965).
[36]    Here, there is no affidavit in the record demonstrating that Stiltner exercised due diligence to obtain the evidence prior to trial. Moreover, the testimony of Miles was not of such a decisive quality as to change the outcome of the case. At best, it was impeaching testimony and, thus, insufficient to require a new trial. See Caldwell v. Commonwealth, Ky., 133 S.W.3d 445 (2004); Commonwealth v. Tamme, Ky., 83 S.W.3d 465 (2002).

 

KY     [U] Miles v. Commonwealth, No. 2003-CA-000401-MR (Ky.App. 07/30/2004) To obtain a new trial because of juror mendacity, “a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” Adkins v. Commonwealth, Ky., 96 S.W.3d 779, 796 (2003) citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984). A juror is qualified to serve unless there is a showing of actual bias. Key v. Commonwealth, Ky.App., 840 S.W.2d 827, 830 (1992); Polk v. Commonwealth, Ky.App., 574 S.W.2d 335 (1978). “It is incumbent upon the party claiming bias or partiality to prove the point.” Polk, 574 S.W.2d at 337.

KY     [U] Jeffries v. Commonwealth, No. 2001-CA-002123-MR (Ky.App. 10/17/2003) In deciding if the evidence was material, the trial court asked whether the newly discovered evidence would with reasonable certainty change the verdict or outcome at trial. The court pointed to the evidence as summarized by the Commonwealth in its “Final Response” to the motion:

KY     [U] Foley v. Commonwealth, No. 2002-SC-0222-TG (Ky. 08/21/2003) This Court has emphasized that “obtaining [a new trial] is not a matter of right but the granting of it is a matter of sound judicial discretion to be exercised upon a showing of reasonable certainty.” Spauldinq, supra, at 656-57 (uotin Anderson, supra). Given the number of witnesses that contradicted Appellant’s claims of self-defense and “absolute innocence,” we cannot say that the trial court abused its discretion in finding that, absent Caldwell’s testimony, there was sufficient evidence to support Appellant’s convictions. As such, the trial court properly denied his motion for new trial.

KY     [U] Commonwealth v. Bean, No. 2002-CA-001048-MR (Ky.App. 04/25/2003)
It is well settled in Kentucky that the decision to grant or deny a new trial rests in the sound discretion of the trial court. Combs v. Commonwealth, Ky., 356 S.W.2d 761 (1962). Therefore, in the absence of an abuse of discretion, we must affirm.

[28]    RCr 10.02(1) provides that “[u]pon motion of a defendant, the court may grant a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice.” Additionally, RCr 10.02(2) provides that “the court on its own initiative may order a new trial for any reason for which it might have granted a new trial on a motion of a defendant, and in the order shall specify the grounds therefor.”

 

KY     [U] Eubanks v. Commonwealth, No. 2001-CA-000940-MR (Ky.App. 05/09/2003) Furthermore, we agree that appellant had no basis for attempting to introduce new evidence to support his motion for JNOV. New evidence may be raised as a ground for a motion for new trial pursuant to RCr 10.02, Carwile v. Commonwealth, Ky. App., 694 S.W.2d 469 (1985), but there is no basis for introducing new evidence as part of a JNOV. We regard a trial court’s ruling on a JNOV as based on the evidence before the jury. RCr 10.02.
 

KY     Commonwealth v. Bailey, 71 S.W.3d 73 (Ky. 03/21/2002)
We agree with the Court of Appeals that the trial court’s order granted a new trial pursuant to RCr 10.02 rather than a JNOV pursuant to RCr 10.24. Although certain language in the order purports to grant a JNOV, we find the language that orders a new trial dispositive as to the trial court’s clear intent. A JNOV would constitute an acquittal of the charge that would leave nothing to be decided at a subsequent trial under the indictment. In other words, to grant both a JNOV and a new trial is a conflict in the use of the terms because a trial court could grant one or the other, but not both because “[a] motion for JNOV raises the single question: whether the evidence is sufficient to sustain a conviction.” However, “RCr 10.02 permits a trial court to grant a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice.” Under RCr 10.02, therefore, absent a cause that does not appear from the record of the trial, “the trial judge’s authority would not differ from that of this court in reviewing the case on appeal . . . . Stated otherwise, a motion for a new trial is generally directed towards alleged errors committed during the course of the trial, while a motion for JNOV is directed towards the sufficiency of the evidence. In the case sub judice, the trial court’s order reflects the court’s belief that certain evidence admitted at Appellee’s trial affected the fairness of the proceedings, but the court clearly did not determine that the evidence presented was insufficient to support the jury’s guilty verdict. We agree with the Court of Appeals that the trial court did not intend to acquit Appellee of the offense by granting a JNOV, but rather granted him a new trial at which a jury could again deliberate the evidence.

 

KY     Commonwealth v. Tamme, No. 2000-SC-000784-MR (Ky. 03/21/2002)
The correct legal standard for adjudicating a motion for a new trial based on newly discovered evidence may be found in Collins v. Commonwealth of Kentucky, 951 S.W.2d 569 (Ky. 05/22/1997)

[27]    Newly discovered evidence must be of such decisive value or force that it would, with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted.
[28]    Similar pronouncements may be found in Coots v. Commonwealth, Ky., 418 S.W.2d 752 (1967) and Wheeler v. Commonwealth, Ky., 395 S.W.2d 569 (1965). The trial judge did not use this rigorous standard and therefore is in error for granting the new trial. The trial judge indicated that the applicable standard is whether the testimony could reasonably result in a different verdict and whether this testimony could be reasonably persuasive as a part of the entire defense theory. Such is a more liberal standard at variance with the requirements of this Court as previously noted. No precedent was cited supporting the standard used.

[29]    The trial judge also mixed the standards for adjudicating RCr 11.42 motions with those for adjudicating RCr 10.02 and 10.06 new trial motions. The combination of these standards produced reversible error. We find no precedent for allowing a defendant to combine an insufficient new trial motion with an insufficient RCr 11.42 motion so as to grant a new trial. In this case, the trial judge admitted that the newly discovered evidence, which was the testimony by Armstrong, did not meet the new trial standard, thus it was error to grant such a new trial.
KY     Thompson v. Commonwealth, 56 S.W.3d 406, 50 S.W.3d 204 (Ky. 06/14/2001) If the trial court rules that a competency hearing is not possible, or if it determines that Thompson was not competent to plead guilty pursuant to RCr 8.06, it shall enter an order granting a new trial pursuant to RCr 10.02.

KY     Foley v. Commonwealth, 55 S.W.3d 809 (Ky. 11/22/2000) Whether to grant a new trial on the basis of newly discovered evidence is largely within the discretion of the trial court, and the standard of review is whether there has been an abuse of that discretion. Collins v. Commonwealth, Ky., 951 S.W.2d 569, 576 (1997); see also, Epperson v. Commonwealth, Ky., 809 S.W.2d 835, 841 (1991), cert. denied, 502 U.S. 1065 (1992); Commonwealth v. Littrell, Ky., 677 S.W.2d 881 (1984); Combs v. Commonwealth, Ky., 356 S.W.2d 761 (1962). It was formerly held that newly discovered evidence which merely impeaches or is collateral is insufficient unless it impeaches the only material witness in the case. Brvant v. Commonwealth, 272 Ky. 222, 113 S.W.2d 1118 (1938); Sawyer v. Commonwealth, 267 Ky. 388, 102 S.W.2d 371 (1937); Lassiter v. Commonwealth, 249 Ky. 352, 60 S.W.2d 937 (1933). Even under that standard, Appellant’s newly discovered evidence would be insufficient since it only impeaches the credibility of Canter and not the credibility of Phoebe Watts. More recently, we have held that newly discovered evidence that merely impeaches the credibility of a witness or is cumulative is generally disfavored as grounds for granting a new trial. Collins v. Commonwealth, supra, at 576. The evidence “must be of such decisive value or force that it would, with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted.” Id. (quoting Coots v. Commonwealth, Ky., 418 S.W.2d 752, 754 (1967)).

KY     Moore v. Commonwealth of Kentucky, 983 S.W.2d 479 (Ky. 11/19/1998) Because the testimony of these newly discovered witnesses is merely cumulative and adds nothing new to the body of fact which was before the jury which convicted Appellant, it fails to establish an appropriate basis for granting a new trial. Bradley v. Commonwealth, Ky., 347 S.W.2d 532 (1961); Commonwealth v. Newsome, Ky., 296 S.W.2d 703 (1956).

JAG LAWYER SAYS MILITARY COMMISSIONS AVOID THE LAW

Thursday, April 12th, 2007

Lt. Cmdr. Charles Swift says the presumption of Hamdan’s guilt ‘scared me significantly as a military officer’  By R. Robin McDonald   DailyReportonline.com                                                                                                                                      
THE LAWYER who won a key U.S. Supreme Court ruling on behalf of a former driver for Osama bin Laden has concluded the military commissions at Guantanamo Bay were created for a single purpose—to secure and use evidence obtained by coercion and torture.
That intent makes the creation of military commissions to try Guantanamo detainees “revolutionary,? the lawyer, Lt. Cmdr. Charles D. Swift, told Emory University law students and faculty this week.
The purpose of military commissions is “bringing law to a lawless place,? Swift said. But their use at Guantanamo is intended not to enforce established U.S. and military law, “but rather to avoid the law and any attempts of defense counsel to bring it back,? Swift added.
As a result, the U.S. government’s open-ended detention of suspected enemy combatants have turned more than two centuries of American jurisprudence, grounded in the Constitution, on its head, Swift said. Without a trial, without a hearing before an impartial judge, Swift’s client Salim A. Hamdan was “presumed to be guilty? of being an enemy combatant “by presidential declaration.?
“It scared me significantly as a military officer and as a citizen of the United States,? said Swift, a member of the U.S. Navy Judge Advocate General’s Corps.
For four years, Swift has defended Hamdan, a Yemeni national who was taken into custody in late 2001 by U.S. forces after he was identified as a driver for bin Laden. Swift retires in May from the office of the chief defense counsel in the Defense Department’s office of military commissions.
Last year he won the 5-3 decision from the Supreme Court in Hamdan v. Rumsfeld, 126 S.Ct. 2749, which has become known internationally simply as “Hamdan.?
In that case, the majority determined that military commissions established by the president and his administration as an alternative to the federal and military courts were not constitutional because Congress had not authorized their creation.
That ruling prompted the Congress last year to pass the Military Commissions Act, giving the executive branch the specific authority to establish military commissions for Guantanamo inmates.
Earlier this month, the U.S. Supreme Court refused to hear cases brought by other detainees challenging the constitutionality of sections of the Military Commissions Act and its predecessor, the Detainee Treatment Act, which denied detainees the right to petition for a writ of habeas corpus.
An opinion by two of the justices who voted to deny certiorari in the cases Boumediene v. Bush, No. 06-1195, and Odah v. U.S., No. 06-1196, said the cases were not ready to be heard because the detainees, who have not yet appeared before military commissions, have not exhausted their potential lower court remedies established, in principle, to review commission rulings.
But Swift and other attorneys for Hamdan had also petitioned the Supreme Court to hear an expedited appeal. On Tuesday, Hamdan’s defense filed a reply brief distinguishing his case from those that the Supreme Court recently declined to hear.
“The reputation of the United States is on the line in these novel and untested trials,? the brief argues. “These trials, which bring to bear the most awesome powers of the government, are slated to take place in Guantanamo—a place that is … exempt from our most deeply held constitutional guarantees. If they go forward within that legal vacuum, the process will ultimately cast doubt on this nation’s judicial system and our hallowed traditions of fairness in the eyes of the world.?
In his comments to the Emory audience on Monday, Swift elaborated on that argument.
Guantanamo, Swift asserted, was chosen to house detainees of the war on terror because of its unique status as “a legal black hole.? The United States leases the territory from Cuba for “20 gold sovereigns a year? in a perpetually renewable contract. It was hammered out decades before Fidel Castro came to power and is still in force.
But, in times of danger, “Where does the Constitution apply, and can we basically jettison it?? Swift asked. “To me, the rights embodied in the Bill of Rights and the Code of Military Justice were what Americans believed were necessary for a full and fair trial,? Swift said. “We’re heading down a road where, sometimes, they aren’t necessary for a ‘full and fair trial.’?
For the government, Hamdan’s appearance before a military tribunal rather than an independent judge and jury would constitute a “full and fair trial.?
According to the government’s Supreme Court brief in Hamdan, Hamdan has been held at Guantanamo for five years because of “his close connection to Osama bin Laden and his participation in al-Qaida’s campaign of international terrorism against the United States.?
Government lawyers said Hamdan “served as bin Laden’s bodyguard and personal driver,? a job in which he allegedly delivered weapons and ammunition to al-Qaida members and associates and “was aware during this period that bin Laden and his associates had participated in terrorist attacks against U.S. citizens and property, including the September 11 attacks.?
Swift on Monday told the Emory audience that Hamdan had twice driven Bin Laden to meetings—both times in 1995, six years before 9/11.
For the charges against Hamdan to stand, he said, the United States would have to have been at war since 1995. “From 1995, we had been at war, and I hadn’t known about it,? he said. “Did I not get the memo??
Swift said when he first began defending Hamdan, he was told his access to the detainee would continue only so long as they were negotiating a pretrial plea. His superiors also suggested that if Hamdan insisted he was not guilty, then negotiations would cease and, in the opinion of the government, “He didn’t need an attorney.?
Swift said he believes the federal courts or the military court “could easily have been used? to prosecute Hamdan. “They didn’t need a military commission to have jurisdiction,? he said. But when he questioned why the government was attempting to place the detainees beyond the reach of the established courts, “None of the reasons given as to why military commissions needed to be put in place made sense,? he said.
So, Swift asked the audience, what could military commissions do that the established courts cannot?
The military commissions established to hear the cases of Guantanamo detainees, he said, “could admit evidence obtained by coercion. It could hide the fact that evidence was obtained by coercion from the public. It could hide it from the defense.?
That means, “We are flipping our jurisprudence of 250 years on its head,? he said. “It means you could use statements obtained by water-boarding, by use of stress positions … by keeping detainees awake for 72 hours straight … and that such evidence obtained by coercion was sufficient to administer the death penalty.?
To be sure, members of Congress who supported the military tribunal idea insisted that the nature of combat made them necessary. For example, they argued that soldiers cannot be expected to obtain search warrants while searching buildings in the heat of battle, that enemy combatants have no Miranda rights and that hearsay evidence is necessary because it is impractical to bring soldiers from the battle to testify.
But Swift countered that the U.S. Supreme Court has said that soldiers do not have to obtain warrants while on the field of battle in order to use evidence seized under those circumstances.
And, he said, the U.S. Court of Appeals for the Armed Forces has held that a prisoner can be interrogated at least four days without being “Mirandized? as long as it is done “for operational and intelligence reasons? as opposed to a pending criminal prosecution.
The court-martial system, he said, was created “to bring the courts to the military on the battlefield,? if need be, when transporting military witnesses proved impractical. And if evidence seized on a battlefield could not be used in trial, then, Swift argued, the trials of American soldiers associated with abuses at the U.S. detention center at the Iraqi prison, Abu Ghraib, would never have happened.
Swift said the government’s insistence that military commissions that accepted coerced testimony were “full and fair trials? reminded him of an old Western in which a character is told, “You’re going to have a fair trial, and then we’re going to hang you.?
“They weren’t doing what military commissions historically were set up to do,? he said. “Rather than bring law to a lawless place, it was to create a lawless place.?
Swift said that in prosecuting the war on terror, “Guantanamo is the wrong answer.? He described what is happening in Iraq today as a “classical insurgency? that can only be won by ending the opposition’s ability to enlist new recruits to its cause.
The difficulty with classic insurgencies, he said, is that the insurgents never have to win a battle. “They don’t have to win a skirmish. … If you stop fighting, they win.?
Web sites promoting radical Islam, he said, are using the U.S.’ open-ended detentions at Guantanamo as a recruiting tool. Those sites are loaded with “blatant propaganda,? he said, unless they are addressing military commissions—“then they just put down the facts.?
“What it helps to do is make martyrs,? he said of Guantanamo. “That’s what they want.
“This is a battle of ideas,? Swift explained. And in that battle, “our system is the most impressive thing we have going for us.? The nation and its system of jurisprudence, he said, “is dedicated to a document that is, in essence, the rule of law.?
Swift said his greatest challenge, so far, has been to explain to Hamdan that there is still legal hope.?
Swift said that in one of his conversations with his clients, Hamdan told him, “The guards say there is no law in Guantanamo.?
Swift’s reply? “I don’t believe that. I believe there is law everywhere, but I believe we will have to go to the Supreme Court to win.?
“Will it make me famous?? Hamdan asked.
“Probably,? Swift replied.
“I don’t want to be famous,? Hamdan said. “I want to go home.?
“I think,? Swift told him, “it is going to be one and the same.?
 

Related opinions:

D.C. Circuit detainee opinion (Feb. 20, 2007; pdf)

Related U.S. Supreme Court decisions:

Rasul v. Bush (June 28, 2004; pdf)

Hamdi v. Rumsfeld (June 28, 2004; pdf)

Hamdan v. v. Rumsfeld (June 29, 2006; pdf)
 

JASON NEMES ELEVATED FROM ACTING TO PERMANENT DIRECTOR OF AOC BY CHIEF JUSTICE LAMBERT.

Thursday, April 12th, 2007

Chief Justice Lambert  made the appointment of Acting AOC Director Jason Nemes permanent on April 12, 2007.
 

Nemes replaced Jim Deckard as Lambert’s chief of staff two years ago to replace Melinda Wheeler  resigned her position to run in the Republican Primary for the office of state treasurer.  
 

As Director of AOC Nemes will be charged with providing administrative support for the 3500 employees and judges of the Kentucky Court system, including Circuit Clerks, pre-trial release officers, Court Designated Workers, and court bailiffs.
 

Nemes has recently been complimented by the Courier-Journal for his efforts in solving a records destruction issue. He has also drawn praise from KBA officials, judges and clerks for his approachable demeanor.
 

The AOC post has a salary of  $121,744.

 

LawReader exclusive. Steve Beshear endorses HB 1 projects peviously vetoed by Gov. Fletcher.

Thursday, April 12th, 2007

 

Democratic Gubernatorial candidate Steve Beshear in an exclusive interview with LawReader announced his support for the projects included in HB 1. These projects were previously approved by the 2006 Session of the Kentucky General Assembly, then vetoed by Governor Ernie Fletcher. 

 

In 2007 HB 1 was re-introduced by 41 house members (see sponsors names below), but due to a refusal by the State Senate to consider any funding bills until the House agreed to the Senate Pension Fund bill, the bill died in the House. 

 

Governor Fletcher has discussed the possibility of calling a Special Session of the Legislature to consider the Retirement program submitted by the Senate but has not specifically said if he would place HB1 on the agenda for a Special Session.  If he doesn’t place the appropriations bill on the Special Session agenda, the next opportunity for the legislature to consider this bill will arise in January of 2008 after the beginning of the next term of office for the office of Governor.

 

Beshear told LawReader Senior Editor Stan Billingsley that “he would work for passage of HB 1 and see that these projects got funded.?   The bill provides funding for educational programs, tuition assistance, park improvements, airport improvements, flood control projects, school construction, child care facilities and program funding, coal severance tax funded projects, and over 150 projects requested by cities and counties.  Every section of the state and every state college would benefit from adoption of this appropriations bill.

 

ZHB 1 is designed to stimulate economic growth and alleviate the high unemployment in Kentucky.  The Federal Bureau of Labor Statistics and the Bureau of Economic Analysis recently reported that Kentucky job growth has lagged the national average. So has growth in the average worker’s income. And the state’s unemployment rate went from 37th worst to 46th.

 

To see what projects and included and the funding provided please click to read full text of:  HB 1

 

                                     HB 1 (BR 436)
                 The following is a partial list of the projects included in HB 1.
Chamber of Commerce/Vision 2015 Northern Kentucky Encyclopedia ; Scott County Fiscal Court – Buffalo Park Improvement and Infrastructure: City of Covington – Timestar Commons – Planning City of Ludlow – Municipal Meeting Center Richmond Arts Council: Debt Service – Community Development Fund Projects: Debt Service – Louisville Zoo – Glacier Run
Governor’s Scholars Program: Patton Museum: Flood Control Matching Fund Project Review: Owenton/Owen County Natural Gas Line Project; Support of the 12 Multicounty Regional Industrial Park Authorities; Buckhorn Children’s Home; Prior Year Funded Community Development Projects: Debt Service – Warren County Fiscal Court – Transpark – Rail Spur; Jessamine County Fiscal Court – Building Restoration in Nicholasville:; Breathitt Veterinary Center and Diagnostic Laboratories: Enforcement of Tobacco Product Sale Restrictions: Purchase of Agricultural Conservation Easement (PACE) Program ; Metrology Lab Operating Fees: County Fair Grants:; Debt Service – Kentucky River Locks and Dams Maintenance and Renovations Pool: SCHOOL FACILITIES CONSTRUCTION COMMISSION; Urgent Need School Trust Fund; School Facility Revenue: School Facilities Evaluation; Use of Local District Capital Outlay Funds: Park Capital Maintenance and Renovation Fund: Nicholas Hildreth School; Buckhorn Lake State Park: Teachers’ Retirement System Employer Match:; School Technology in Coal Counties: Education Technology Program: HORSE RACING AUTHORITY; COMMONWEALTH OFFICE OF TECHNOLOGY; HEALTH POLICY; Foster Parent and Adoption Assistance Rate Increases: Private Child Care Provider Rate Increases: Performance Incentives for Hard-to-Place Youth: Foster Youth Transitional Assistance: Home of the Innocents; Brooklawn Child and Family Services; COUNCIL ON POSTSECONDARY EDUCATION; Ovarian Cancer: Regional Stewardship Funding Program; KENTUCKY HIGHER EDUCATION ASSISTANCE AUTHORITY; Kentucky Tuition Grant Program: Teacher Scholarship Program: Kentucky National Guard Tuition Assistance Program:  Kentucky Education Excellence Scholarships (KEES; Pharmacy Scholarship Program: EASTERN KENTUCKY UNIVERSITY; KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM; Firefighters Foundation Program Fund: Family Life Skills Center; Education Programs at Department of Corrections Facilities: North American Racing Academy: AVIATION; a) Bardstown-Nelson County Airport,(b) Cynthiana-Harrison County Airport (c)      Fleming-Mason Airport                                                                                    
         (d)Muhlenberg County Airport (e) Ohio County Airport (f) Big Sandy Regional Airport (g) Leitchfield-Grayson County Airport (h)      Madison Airport (i) Lebanon-Springfield Airport                                                           
         (j)Tompkinsville-Monroe County Airport               (k) Danville-Boyle County Airport                             
         (l)Muhlenberg County Airport (m) Henderson City County Airport (n) Russell County Airport                  
            (o)Powell County Airport  (p)       Ohio County Airport (q)   Russellville-Logan County Airport (r)         Falmouth-Pendleton County Airport; Animal Shelters; GOVERNOR’S OFFICE FOR LOCAL DEVELOPMENT; Big Bone Lick State Park;Cumberland Falls Resort Park Campground ; Cumberland Falls Resort Park Golf Course; Dale Hollow Resort Park Pool/Villas/Condos/Cabins; E. P. “Tom” Sawyer State Park Convention Center; Fort Boonesborough State Park Land Acquisition; General Burnside State Park Golf and Lodge Infrastructure ;               
Grayson Lake State Park Villas/Condos/Cabins/Pavilion; Green River Lake State Park Infrastructure/ Development Costs;  Greenbo Lake Resort Park Cottages;      
Herrington Lake State Park Land Acquisition and Development; John James Audubon State Park Campground and Entrance ; Kincaid Lake State Park Infrastructure; Lake Cumberland Resort Park Conference Center; Nolin Lake State Park Cottages; Yatesville Lake State Park Villas/Condos/Cabins/Pavilion; Convention Center E. P. “Tom” Sawyer; Postsecondary Education Capital Renewal and Maintenance Pool Match; EASTERN KENTUCKY UNIVERSITY/         Construct New Student Housing; KENTUCKY STATE UNIVERSITY;  MOREHEAD STATE UNIVERSITY; MURRAY STATE UNIVERSITY; UNIVERSITY OF KENTUCKY; UNIVERSITY OF LOUISVILLE; WESTERN KENTUCKY UNIVERSITY; KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM; Construct Carrollton Campus – Jefferson CTC; COAL SEVERANCE TAX PROJECTS;
          Also included in HB 1 are more than 150 projects affecting city and county projects affecting almost every county in the state.
                                   
                  HB 1 was introduced by 41 Representatives:
 J. Richards, H. Moberly Jr, R. Adkins, J. Arnold Jr, E. Ballard, L. Belcher, J. Bell, L. Clark, H. Collins, L. Combs, J. Crenshaw, M. Denham, T. Edmonds, T. Firkins, J. Gooch Jr, D. Graham, K. Hall, R. Henderson, C. Hoffman, J. Jenkins, M. Marzian, T. McKee, C. Miller, R. Nelson, R. Palumbo, T. Pullin, R. Rand, S. Riggs, T. Riner, A. Simpson, D. Sims, A. Smith, K. Stein, T. Thompson, J. Tilley, D. Watkins, J. Wayne, R. Webb, S. Westrom, R. Wilkey, B. Yonts
  HB 1 is      AN ACT relating to appropriations and other measures line-item vetoed by the Governor at the 2006 Regular Session, and declaring an emergency.
     Amend 2006 Kentucky Acts Chapter 252 to reinstate those appropriations and measures struck from 2006 RS HB 380 by gubernatorial vetoes 1 to 4, 6 to 7, 10 to 13, 15 to 17, 19 to 24, and 28 to 30 and from 2006 RS HB 557 by gubernatorial veto 1; amend 2006 Kentucky Acts Chapter 250 to reinstate appropriation measure struck from 2006 RS HB 382 by gubernatorial veto 1; EMERGENCY.
HB 1 – AMENDMENTS

     HCS – Retain original provisions; restore provisions struck from 2006 RS HB 380 by gubernatorial veto 9 and 2006 RS HB 557 by gubernatorial veto 2; delete the restoration of 2006 RS HB 380 veto 13; amend language struck from 2006 RS HB 380 by gubernatorial veto 16; delete some university capital projects; include language that would prevent coal severance projects from receiving duplicative funding.

     HFA (1, R. Nelson) – Amend to redistribute coal severance funds within Bell County.

     HFA (2, R. Nelson) – Amend to redistribute coal severance funds within Bell County.

     HFA (3, R. Crimm) – Retain original provisions, except require an independent college or university to be accredited by a regional accrediting association rather than by the Southern Association of Colleges and Schools for a student to be eligible for a grant under the Kentucky Tuition Grant Program.

     HFA (4, R. Wilkey) – Restore Northern Kentucky University, University of Kentucky, and University of Louisville capital projects vetoed by the governor.

     HFA (5, T. Couch) – Change the titles and descriptions of two capital projects.

     HFA (6, H. Moberly Jr) – Delete the requirement that an independent college or university be accredited by the Southern Association of Colleges and Schools in order for a student to be eligible for a grant under the Kentucky Tuition Grant Program.
     Feb 6-introduced in House; to Appropriations and Revenue (H); posting waived
     Feb 13-reported favorably, 1st reading, to Calendar
     Feb 14-2nd reading, to Rules; recommitted to Appropriations & Revenue (H)
     Feb 20-reported favorably, to Rules with Committee Substitute
     Feb 21-posted for passage in the Regular Orders of the Day for Thursday, February 22, 2007; floor amendments (2) and (3) filed to Committee Substitute, floor amendment (1) filed
     Feb 22-floor amendments (4) and (5) filed to Committee Substitute
     Feb 27-floor amendment (6) filed to Committee Substitute
     Feb 28-3rd reading, passed 94-5 with Committee Substitute, floor amendment (6)
     Mar 1-received in Senate
     Mar 5-to Appropriations & Revenue (S)
     Mar 7-taken from committee; 1st reading; returned to Appropriations & Revenue (S)
     Mar 8-taken from committee; 2nd reading; returned to Appropriations & Revenue (S)

 

IN 5-YEAR FEDERAL INVESTIGATION EFFORT, SCANT EVIDENCE OF VOTER FRAUD

Thursday, April 12th, 2007

By ERIC LIPTON and IAN URBINA :  New York Times, April 12, 2007
WASHINGTON, April 11 — Five years after the Bush administration began a crackdown on voter fraud, the Justice Department has turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.

Skip to next paragraph Although Republican activists have repeatedly said fraud is so widespread that it has corrupted the political process and, possibly, cost the party election victories, about 120 people have been charged and 86 convicted as of last year.

Most of those charged have been Democrats, voting records show. Many of those charged by the Justice Department appear to have mistakenly filled out registration forms or misunderstood eligibility rules, a review of court records and interviews with prosecutors and defense lawyers show.

In Miami, an assistant United States attorney said many cases there involved what were apparently mistakes by immigrants, not fraud.

In Wisconsin, where prosecutors have lost almost twice as many cases as they won, charges were brought against voters who filled out more than one registration form and felons seemingly unaware that they were barred from voting.

One ex-convict was so unfamiliar with the rules that he provided his prison-issued identification card, stamped “Offender,? when he registered just before voting.

A handful of convictions involved people who voted twice. More than 30 were linked to small vote-buying schemes in which candidates generally in sheriff’s or judge’s races paid voters for their support.

A federal panel, the Election Assistance Commission, reported last year that the pervasiveness of fraud was debatable. That conclusion played down findings of the consultants who said there was little evidence of it across the country, according to a review of the original report by The New York Times that was reported on Wednesday.

Mistakes and lapses in enforcing voting and registration rules routinely occur in elections, allowing thousands of ineligible voters to go to the polls. But the federal cases provide little evidence of widespread, organized fraud, prosecutors and election law experts said.

“There was nothing that we uncovered that suggested some sort of concerted effort to tilt the election,? Richard G. Frohling, an assistant United States attorney in Milwaukee, said.

Richard L. Hasen, an expert in election law at the Loyola Law School, agreed, saying: “If they found a single case of a conspiracy to affect the outcome of a Congressional election or a statewide election, that would be significant. But what we see is isolated, small-scale activities that often have not shown any kind of criminal intent.?

For some convicted people, the consequences have been significant. Kimberly Prude, 43, has been jailed in Milwaukee for more than a year after being convicted of voting while on probation, an offense that she attributes to confusion over eligibility.

In Pakistan, Usman Ali is trying to rebuild his life after being deported from Florida, his legal home of more than a decade, for improperly filling out a voter-registration card while renewing his driver’s license.

In Alaska, Rogelio Mejorada-Lopez, a Mexican who legally lives in the United States, may soon face a similar fate, because he voted even though he was not eligible.

The push to prosecute voter fraud figured in the removals last year of at least two United States attorneys whom Republican politicians or party officials had criticized for failing to pursue cases.

The campaign has roiled the Justice Department in other ways, as career lawyers clashed with a political appointee over protecting voters’ rights, and several specialists in election law were installed as top prosecutors.

Department officials defend their record. “The Department of Justice is not attempting to make a statement about the scale of the problem,? a spokesman, Bryan Sierra, said. “But we are obligated to investigate allegations when they come to our attention and prosecute when appropriate.?

Officials at the department say that the volume of complaints has not increased since 2002, but that it is pursuing them more aggressively.

Previously, charges were generally brought just against conspiracies to corrupt the election process, not against individual offenders, Craig Donsanto, head of the elections crimes branch, told a panel investigating voter fraud last year. For deterrence, Mr. Donsanto said, Attorney General Alberto R. Gonzales authorized prosecutors to pursue criminal charges against individuals.

Some of those cases have baffled federal judges.

I find this whole prosecution mysterious,? Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, in Chicago, said at a hearing in Ms. Prude’s case. “I don’t know whether the Eastern District of Wisconsin goes after every felon who accidentally votes. It is not like she voted five times. She cast one vote.?
Skip to next paragraph The Justice Department stand is backed by Republican Party and White House officials, including Karl Rove, the president’s chief political adviser. The White House has acknowledged that he relayed Republican complaints to President Bush and the Justice Department that some prosecutors were not attacking voter fraud vigorously. In speeches, Mr. Rove often mentions fraud accusations and warns of tainted elections.
Voter fraud is a highly polarized issue, with Republicans asserting frequent abuses and Democrats contending that the problem has been greatly exaggerated to promote voter identification laws that could inhibit the turnout by poor voters.
The New Priority
The fraud rallying cry became a clamor in the Florida recount after the 2000 presidential election. Conservative watchdog groups, already concerned that the so-called Motor Voter Law in 1993 had so eased voter registration that it threatened the integrity of the election system, said thousands of fraudulent votes had been cast.
Similar accusations of compromised elections were voiced by Republican lawmakers elsewhere.
The call to arms reverberated in the Justice Department, where John Ashcroft, a former Missouri senator, was just starting as attorney general.
Combating voter fraud, Mr. Ashcroft announced, would be high on his agenda. But in taking up the fight, he promised that he would also be vigilant in attacking discriminatory practices that made it harder for minorities to vote.
“American voters should neither be disenfranchised nor defrauded,? he said at a news conference in March 2001.
Enlisted to help lead the effort was Hans A. von Spakovsky, a lawyer and Republican volunteer in the Florida recount. As a Republican election official in Atlanta, Mr. Spakovsky had pushed for stricter voter identification laws. Democrats say those laws disproportionately affect the poor because they often mandate government-issued photo IDs or driver’s licenses that require fees.
At the Justice Department, Mr. Spakovsky helped oversee the voting rights unit. In 2003, when the Texas Congressional redistricting spearheaded by the House majority leader, Tom DeLay, Republican of Texas, was sent to the Justice Department for approval, the career staff members unanimously said it discriminated against African-American and Latino voters.
Mr. Spakovsky overruled the staff, said Joseph Rich, a former lawyer in the office. Mr. Spakovsky did the same thing when they recommended the rejection of a voter identification law in Georgia considered harmful to black voters. Mr. Rich said. Federal courts later struck down the two laws.
Former lawyers in the office said Mr. Spakovsky’s decisions seemed to have a partisan flavor unlike those in previous Republican and Democratic administrations. Mr. Spakovsky declined to comment.
“I understand you can never sweep politics completely away,? said Mark A. Posner, who had worked in the civil and voting rights unit from 1980 until 2003. “But it was much more explicit, pronounced and consciously done in this administration.?
At the same time, the department encouraged United States attorneys to bring charges in voter fraud cases, not a priority in prior administrations. The prosecutors attended training seminars, were required to meet regularly with state or local officials to identify possible cases and were expected to follow up accusations aggressively.
The Republican National Committee and its state organizations supported the push, repeatedly calling for a crackdown. In what would become a pattern, Republican officials and lawmakers in a number of states, including Florida, New Mexico, Pennsylvania and Washington, made accusations of widespread abuse, often involving thousands of votes.
In swing states, including Ohio and Wisconsin, party leaders conducted inquiries to find people who may have voted improperly and prodded officials to act on their findings.
But the party officials and lawmakers were often disappointed. The accusations led to relatively few cases, and a significant number resulted in acquittals.
The Path to Jail
One of those officials was Rick Graber, former chairman of the Wisconsin Republican Party.
“It is a system that invites fraud,? Mr. Graber told reporters in August 2005 outside the house of a Milwaukeean he said had voted twice. “It’s a system that needs to be fixed.?

Along with an effort to identify so-called double voters, the party had also performed a computer crosscheck of voting records from 2004 with a list of felons, turning up several hundred possible violators. The assertions of fraud were turned over to the United States attorney’s office for investigation.
Skip to next paragraph Ms. Prude’s path to jail began after she attended a Democratic rally in Milwaukee featuring the Rev. Al Sharpton in late 2004. Along with hundreds of others, she marched to City Hall and registered to vote. Soon after, she sent in an absentee ballot.
Four years earlier, though, Ms. Prude had been convicted of trying to cash a counterfeit county government check worth $1,254. She was placed on six years’ probation.
Ms. Prude said she believed that she was permitted to vote because she was not in jail or on parole, she testified in court. Told by her probation officer that she could not vote, she said she immediately called City Hall to rescind her vote, a step she was told was not necessary.
“I made a big mistake, like I said, and I truly apologize for it,? Ms. Prude said during her trial in 2005. That vote, though, resulted in a felony conviction and sent her to jail for violating probation.
Of the hundreds of people initially suspected of violations in Milwaukee, 14 — most black, poor, Democratic and first-time voters — ever faced federal charges. United States Attorney Steven M. Biskupic would say only that there was insufficient evidence to bring other cases.
No residents of the house where Mr. Graber made his assertion were charged. Even the 14 proved frustrating for the Justice Department. It won five cases in court.
The evidence that some felons knew they that could not vote consisted simply of a form outlining 20 or more rules that they were given when put on probation and signs at local government offices, testimony shows.
The Wisconsin prosecutors lost every case on double voting. Cynthia C. Alicea, 25, was accused of multiple voting in 2004 because officials found two registration cards in her name. She and others were acquitted after explaining that they had filed a second card and voted just once after a clerk said they had filled out the first card incorrectly.
In other states, some of those charged blamed confusion for their actions. Registration forms almost always require a statement affirming citizenship.
Mr. Ali, 68, who had owned a jewelry store in Tallahassee, got into trouble after a clerk at the motor vehicles office had him complete a registration form that he quickly filled out in line, unaware that it was reserved just for United States citizens.
Even though he never voted, he was deported after living legally in this country for more than 10 years because of his misdemeanor federal criminal conviction.
“We’re foreigners here,? Mr. Ali said in a telephone interview from Lahore, Pakistan, where he lives with his daughter and wife, both United States citizens.
In Alaska, Rogelio Mejorada-Lopez, who manages a gasoline station, had received a voter registration form in the mail. Because he had applied for citizenship, he thought it was permissible to vote, his lawyer said. Now, he may be deported to Mexico after 16 years in the United States. “What I want is for them to leave me alone,? he said in an interview.
Federal prosecutors in Kansas and Missouri successfully prosecuted four people for multiple voting. Several claimed residency in each state and voted twice.
United States attorney’s offices in four other states did turn up instances of fraudulent voting in mostly rural areas. They were in the hard-to-extinguish tradition of vote buying, where local politicians offered $5 to $100 for individuals’ support.
Unease Over New Guidelines
Aside from those cases, nearly all the remaining 26 convictions from 2002 to and 2005 — the Justice Department will not release details about 2006 cases except to say they had 30 more convictions— were won against individuals acting independently, voter records and court documents show.
Previous guidelines had barred federal prosecutions of “isolated acts of individual wrongdoing? that were not part of schemes to corrupt elections. In most cases, prosecutors also had to prove an intent to commit fraud, not just an improper action.
That standard made some federal prosecutors uneasy about proceeding with charges, including David C. Iglesias, who was the United States attorney in New Mexico, and John McKay, the United States attorney in Seattle.
Although both found instances of improper registration or voting, they declined to bring charges, drawing criticism from prominent Republicans in their states. In Mr. Iglesias’s case, the complaints went to Mr. Bush. Both prosecutors were among those removed in December.
In the last year, the Justice Department has installed top prosecutors who may not be so reticent. In four states, the department has named interim or permanent prosecutors who have worked on election cases at Justice Department headquarters or for the Republican Party.
Bradley J. Schlozman has finished a year as interim United States attorney in Missouri, where he filed charges against four people accused of creating fake registration forms for nonexistent people. The forms could likely never be used in voting. The four worked for a left-leaning group, Acorn, and reportedly faked registration cards to justify their wages. The cases were similar to one that Mr. Iglesias had declined to prosecute, saying he saw no intent to influence the outcome of an election.
“The decision to file those indictments was reviewed by Washington,? a spokesman for Mr. Schlozman, Don Ledford, said. “They gave us the go-ahead.?
 

Bloggers disinclined toward suggestion of Net civility. Proposed code stirs up a hornets nest online. LawReader has a code.

Thursday, April 12th, 2007

The San Franciso Chronicle writes that Internet bloggers have criticized suggestions for a Code of Conduct.  We note that LawReader is a member of the American Association of Internet Journalists, which has a code of conduct to which we adhere.
 

 A posting on  phttp://www.aminternetjournalists.org/   describes the associations membership requirements:
 on the           
“The American Association of Internet Journalists was formed to recognize the contribution that writer’s and publisher’s who deliver their news, opinions, and educational materials by electronic means, make to the benefit and enlightenment of society.
 

The association requires all members in good standing to ascribe to a Code of Ethics that attempts to elevate the level of discourse they publish on web sites, blogs and electronically distributed newsletters.
 

The association will attempt to advance the quality of Internet Journalism, and will support laws which recognize the contribution that internet journalists make to the elevation of public discourse and education of society.
 

The association will from time to time publically recognize the outstanding work of internet journalists.?
 

                                                       MEMBERSHIP
 

Applicants for membership in the non-profit association may submit an application for membership to:
 

AAIJ
314th. 7th. St.
Carrollton, Ky. 41008
 

Verne Kopytoff, San Francisco Chronicle writes:

   A proposed code of conduct for bloggers, aimed at discouraging personal
attacks, has been met with intense criticism by many of the Internet
denizens it would supposedly affect.

   Tim O’Reilly, chief of O’Reilly Media Inc., a book publisher and
conference promoter who is a central figure in the Web 2.0 world, posted
recommendations Sunday that he hoped would ensure civility online.

   The guidelines, which call for banning anonymous comments and deleting
abusive posts, were almost immediately denounced by many in the
blogosphere, a cacophony of online journals filled with opinion,
thoughtful essays and rants. They described O’Reilly’s guidelines as
excessive, unworkable and an open door to censorship.

   “I’m rather resentful of someone who has the temerity to tell me how they
think I should behave,” said Jeff Jarvis, a professor and director of the
interactive journalism program at the City University of New York, and
author of the blog BuzzMachine. “The miscreants who need their meds aren’t
going to sign the code, let alone adhere to it.”

   O’Reilly’s proposals follow on the heels of a high-profile incident in
which blogger Kathy Sierra, a Web developer who writes about technology
from Colorado, received death threats and was scared into canceling an
appearance at O’Reilly’s ETech conference in San Diego recently. The case
prompted a global debate about online discourse, free speech and whether
the blogosphere’s free-wheeling climate has gotten out of hand.

   Although bloggers are usually benign, some engage in vitriolic attacks,
protected by a cloak of online anonymity. The more provocative the
comments, the more attention they get.

   In his proposals, O’Reilly, who was unavailable for an interview, called
on bloggers to not post material that harasses others, is libelous or is
knowingly false. If such material appears in the comments area of a blog,
the owner should be able to delete them without fear of being accused of
censorship.

   O’Reilly also recommended banning anonymous comments. Rather, individuals
must provide a valid e-mail address to post, although they can still
identify themselves online with an alias rather than a real name.
   Blogs that ascribe to O’Reilly’s code of conduct could post a “civility
enforced” badge on their sites. Unedited blogs, in contrast, would use a
badge that says “anything goes.”

   O’Reilly called his ideas a draft code of conduct, intended only to start
the conversation. Whether Web sites ultimately adopt the rules would be
voluntary, and any diversion from the guidelines would be unenforceable.
   In response to O’Reilly’s guidelines, Internet users flooded his blogs
with commentary, a mix of support, suggestions and ridicule. Yes, there
were even some personal attacks, one of which accused him of trying to
create “a safe place where PR flacks can propagate their lies and VCs get
a good return on their foolish investments”

   O’Reilly replied that he would normally delete the attacks, but in this
case would leave them because he was trying to “suss out sentiment on what
is a controversial issue.”

Blogging nicely

   Tim O’Reilly, a prominent figure in the technology industry, has proposed
a code of conduct for bloggers. Here are the main points of his proposal:
   — Ban abusive and harassing content
   — Handle conflicts in private
   — Ban anonymous comments
   — Ignore nasty comments that aren’t abusive (responding only encourages
more)
   — Give separate badges for sites that enforce civility and allow a
free-for-all
   For the full code of conduct and commentary, go to
radar.oreilly.com/archives/2007/04/draft_bloggers_1.html and look for the
April 8, 2007, entry.
  

COMPUTER PRIVACY UPHELD, BUT SIDESTEPPED BY SILVER PLATTER DOCTRINE AND SCHOOLS SPECIAL NEEDS EXCEPTION

Wednesday, April 11th, 2007

 

Right of privacy in personal computer hooked to network:
 

The Ninth Circuit Court of Appeals held in U.S. v. Heckenkamp:

 

“The government does not dispute that Heckenkamp had a subjective expectation of privacy in his computer and his dormitory room, and there is no doubt that Heckenkamp’s subjective expectation as to the latter was legitimate and objectively reasonable?

 

“, the mere act of accessing a network does not in itself extinguish privacy expectations, nor does the fact that others may have occasional access to the computer. Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001)?

 

Tthe Silver Platter Doctrine was applied:
 

 Under the independent source exception, ” ‘information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source.’ “ Murray v. United States, 487 U.S. 533, 538-39

 

The Special Needs Exception to the 4th. Amendment was applied:
Under the special needs exception, a warrant is not required when
Page 10
” ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ “ Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)

   So while the student was found to have a privacy interest, the court found two exceptions that allowed the evidence later seized with a warrant in violation of the privacy rights to be used.  They found that the school official was not working with the police and that he was an independent source and thus this did not taint evidence he seized in violation of the student’s fourth amendment rights.  Secondly, they used an exception to the exclusionary rule by finding that the school had “special needs?.

Synopsis of U.S. v Heckenkamp:
 

United States v. Heckenkamp, No. 05-10322 (9th Cir. 4/5/2007) (9th Cir., 2007)       April 5, 2007

     In this case, we consider whether a remote search of computer files on a hard drive by a network administrator was justified under the “special needs” exception to the Fourth Amendment because the administrator reasonably believed the computer had been used to gain unauthorized access to confidential records on a university computer. We conclude that the remote search was justified.
        Although we assume that the subsequent search of the suspect’s dorm room was not justified under the Fourth Amendment, we conclude that the district court’s denial of the suppression motion was proper under the independent source exception to the exclusionary rule.
 [1] As a prerequisite to establishing the illegality of a search under the Fourth Amendment, a defendant must show that he had a reasonable expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 143 (1978). An individual has a reasonable expectation of privacy if he can ” ‘demonstrate a subjective expectation that his activities would be private, and he [can] show that his expectation was one that society is prepared to recognize as reasonable.’ ”
Page 8
Bautista, 362 F.3d at 589 (quoting United States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000)). No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of warrantless government intrusion. Rakas, 439 U.S. at 152-153 (Powell, J., concurring). However, we have given weight to such factors as the defendant’s possessory interest in the property searched or seized, United States v. Broadhurst, 805 F.2d 849, 852 n.2 (9th Cir. 1986), the measures taken by the defendant to insure privacy, see id., whether the materials are in a container labeled as being private, see id., and the presence or absence of a right to exclude others from access, see Bautista, 362 F.3d at 589.
        [2] The government does not dispute that Heckenkamp had a subjective expectation of privacy in his computer and his dormitory room, and there is no doubt that Heckenkamp’s subjective expectation as to the latter was legitimate and objectively reasonable. Minnesota v. Olson, 495 U.S. 91, 95-96 (1990). We hold that he also had a legitimate, objectively reasonable expectation of privacy in his personal computer. See United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (“Individuals generally possess a reasonable expectation of privacy in their home computers.”); United States v. Buckner, 473 F.3d 551, 554 n.2 (4th Cir. 2007) (recognizing a reasonable expectation of privacy in password-protected computer files); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001) (same).
        [3] The salient question is whether the defendant’s objectively reasonable expectation of privacy in his computer was eliminated when he attached it to the university network. We conclude under the facts of this case that the act of attaching his computer to the network did not extinguish his legitimate, objectively reasonable privacy expectations.
        [4] A person’s reasonable expectation of privacy may be diminished in “transmissions over the Internet or e-mail that
Page 9
have already arrived at the recipient.” Lifshitz, 369 F.3d at 190. However, the mere act of accessing a network does not in itself extinguish privacy expectations, nor does the fact that others may have occasional access to the computer. Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001). However, privacy expectations may be reduced if the user is advised that information transmitted through the network is not confidential and that the systems administrators may monitor communications transmitted by the user. United States v. Angevine, 281 F.3d 1130, 1134 (10th Cir. 2002); United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000).
        [5] In the instant case, there was no announced monitoring policy on the network. To the contrary, the university’s computer policy itself provides that “[i]n general, all computer and electronic files should be free from access by any but the authorized users of those files. Exceptions to this basic principle shall be kept to a minimum and made only where essential to . . . protect the integrity of the University and the rights and property of the state.” When examined in their entirety, university policies do not eliminate Heckenkamp’s expectation of privacy in his computer. Rather, they establish limited instances in which university administrators may access his computer in order to protect the university’s systems. Therefore, we must reject the government’s contention that Heckenkamp had no objectively reasonable expectation of privacy in his personal computer, which was protected by a screensaver password, located in his dormitory room, and subject to no policy allowing the university actively to monitor or audit his computer usage.
III
        [6] Although we conclude that Heckenkamp had a reasonable expectation of privacy in his personal computer, we conclude that the search of the computer was justified under the “special needs” exception to the warrant requirement. Under the special needs exception, a warrant is not required when
Page 10
” ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ “ Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in the judgment)). If a court determines that such conditions exist, it will “assess the constitutionality of the search by balancing the need to search against the intrusiveness of the search.” Henderson v. City of Simi Valley, 305 F.3d 1052, 1059 (9th Cir. 2002) (citing Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001)).
  Once a court determines that the special needs doctrine applies to a search, it must “assess the constitutionality of the search by balancing the need to search against the intrusiveness of the search.” Henderson, 305 F.3d at 1059 (citing Ferguson, 532 U.S. at 78). The factors considered are the subject of the search’s privacy interest, the government’s interests in performing the search, and the scope of the intrusion. See id. at 1059-60.
Page 12
        [11] Here, although Heckenkamp had a subjectively real and objectively reasonable expectation of privacy in his computer, the university’s interest in maintaining the security of its network provided a compelling government interest in determining the source of the unauthorized intrusion into sensitive files. The remote search of the computer was remarkably limited given the circumstances. Savoy did not view, delete, or modify any of the actual files on the computer; he was only logged into the computer for 15 minutes; and he sought only to verify that the same computer that had been connected at the 117 IP address was now connected at the 120 IP address. Here, as in Henderson, “the government interest served[ ] and the relative unobtrusiveness of the search” lead to a conclusion that the remote search was not unconstitutional. Id. at 1061.
        [12] The district court did not err in denying the motion to suppress the evidence obtained through the remote search of the computer.
IV
        The district court also did not err in denying the motion to suppress evidence obtained during the searches of Heckenkamp’s room. Assuming, without deciding, that Savoy and the university police violated Heckenkamp’s Fourth Amendment rights when they entered his dormitory room for nonlaw-enforcement purposes, the evidence obtained through the search was nonetheless admissible under the independent source exception to the exclusionary rule.
        [13] Under the independent source exception, ” ‘information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source.’ “ Murray v. United States, 487 U.S. 533, 538-39, (1988) (quoting United States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986)). Therefore, we have held that ” ‘[t]he mere inclusion of tainted evidence in an affidavit does not, by itself,
Page 13
taint the warrant or the evidence seized pursuant to the warrant.’ “ United States v. Reed, 15 F.3d 928, 933 (9th Cir. 1994) (quoting United States v. Vasey, 834 F.2d 782, 788 (9th Cir. 1987)). In order to determine whether evidence obtained through a tainted warrant is admissible, “[a] reviewing court should excise the tainted evidence and determine whether the remaining untainted evidence would provide a neutral magistrate with probable cause to issue a warrant.” Id. (quoting Vasey, 834 F.2d at 788).
Although Heckenkamp had a reasonable expectation of privacy in his personal computer, a limited warrantless remote search of the computer was justified under the special needs exception to the warrant requirement. The subsequent search of his dorm room was justified, based on information obtained by means independent of the university search of the room. Therefore, the district courts properly denied the suppression motions.
        The judgment of the district court is AFFIRMED
 

 

                                                                                                                           

Appeals Court Misfired in Hack-Counterhack Dispute
 

Article by Jennifer Granick , former attorney for  Heckenkamp.  April 11, 2007.
  

Last week’s decision by the U.S. 9th Circuit Court of Appeals in U.S. v. Heckenkamp is a mixed bag. It assures us that a college student’s dorm room computer is protected by the Fourth Amendment, but says warrantless, and perhaps even suspicionless, searches of those computers can be justified by a university’s “special needs.”
It’s great that the court rejected the government’s view that we have no expectation of privacy in information stored on the hard drives of a computer we connect to school or other networks. But how much protection do we really have from random searches if the special-needs exception applies?
I especially care about this decision because I represented the defendant, Jerome Heckenkamp, early in the case. The charges involved allegations of hacking into Qualcomm and a host of other computer companies, as well as defacing eBay’s webpage.
Heckenkamp was young and smart, but naïve; he’d been home schooled, was the apple of his parents’ eye, and attended college close to where he grew up, at the University of Wisconsin. Upon graduation, he got a job at Los Alamos National Laboratory and moved away from his home state. He lost that job when FBI agents came to arrest him one morning in January of 2001. The family hired me to represent him.
In time, our attorney-client relationship frayed. Heckenkamp fired me and represented himself for approximately eight months — months he spent sitting in jail without any scheduled court dates, following a hearing in which he argued that the indictment against him should be dismissed because it spelled his name all in capital letters. Eventually, Heckenkamp hired San Diego-based attorney Benjamin Coleman to represent him.
One of the primary issues for both me and attorney Coleman centered on the legality of a remote search that the university system administrator conducted of Heckenkamp’s dorm-room computer.
FBI and Qualcomm investigators were able to trace the Qualcomm intrusion through several hops to the “Mail2″ e-mail server at the University of Wisconsin. At their direction, system administrator Jeffrey Savoy located a strange file on the mail server listing numerous logins to other computer through Mail2. The file also showed that someone had accessed a student dorm computer with an IP address ending in 117 using an account with the username and password “temp.”
Savoy drew the conclusion (which proved correct) that the 117 computer was the source of the unauthorized access to Mail2. Savoy then looked at the e-mail-server logs and found IP address 117 checking the e-mail account for Heckenkamp, which led him to believe that 117 was assigned to Heckenkamp’s machine. He blocked that IP from connecting to Mail2 and informed the investigating FBI agent. Savoy then went home.
That night, Savoy got to thinking about the events of the day. He logged on from home to determine what the 117 computer was up to — it was not online. But Savoy crosschecked the log of Ethernet addresses with IP addresses, and found the computer formerly known at 117 was now known as 120.
Savoy gave several plausible and not-inconsistent reasons for doing what he did next, the evening of December 8, 1999. He wanted to protect the mail system from a potentially destructive intruder; he wanted to find out who had been accessing Mail2; he wanted to confirm that the 117 computer was the same machine now using 120. He wanted to confirm that Heckenkamp was involved.
Whatever his motivation, Savoy logged on to the 120 machine using the “temp/temp” username and password he had found on Mail2. He spent 15 minutes there, looking at a phonebook file, and a list of account names, and found information that led him to believe Heckenkamp had an account on the machine. He also saw what he called “computer hacking tools” and files that Qualcomm had described. Savoy made screen-print copies of these files as evidence.
Savoy then decided to get the computer offline ASAP, informed the FBI and university police and, despite the FBI asking him to wait for a warrant, went to Heckenkamp’s dorm room to disconnect the machine and secure the premises.
School police went to Heckenkamp’s room and unplugged his machine from the network late that same night. FBI agents showed up with a warrant late on December 9th. The warrant affidavit failed to mention that Savoy had remotely searched the computer, and had searched Heckenkamp’s dorm room without a warrant, though the agents were aware of both. The warrant simply said Savoy had tracked the intrusion to Heckenkamp’s dorm-room computer.
I argued in court that the warrantless search was improper, as did Coleman later. We lost. Heckenkamp went on to plead guilty for time served, but retained the right to appeal his motion to suppress.
Last week’s appeals court opinion starts out pretty well for computer privacy — the University of Wisconsin is a state school, so the Fourth Amendment, which only covers state action, applies to its activities. The court rejected a government assertion that students don’t have privacy rights in their personal computers that they connect to a dorm or university network. That part of the ruling is a relief — imagine if connecting your computer to any private network meant police could search your system remotely without cause or authorization.
The court even held that the fact that others may have occasional access to a computer does not diminish the owner’s reasonable expectation of privacy in its contents — countering a few often-cited cases holding that disclosure of personal information to third parties destroys constitutional protections.
But then the court nonetheless upheld the remote, warrantless search of Heckenkamp’s computer under the “special needs” exception to the Fourth Amendment.
That exception was carved out in a 1985 U.S. Supreme Court decision in New Jersey v. T.L.O., a case in which a high school principal searched a student’s purse. The court found that the public interest was best served by lowering the level of suspicion needed for a school search from “probable cause” to one of mere “reasonableness”, and doing away with any warrant requirement.
Justice Blackmun’s concurrence limited the seemingly broad ruling to those exceptional circumstances in which “special needs”, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impractical. In subsequent cases, the high court has applied the special needs exception to a search of a doctor’s office for administrative disciplinary proceedings, to probation searches, to drug testing following train accidents and prior to promotion to certain positions in the U.S. customs agency.
The Supreme Court has rejected the special needs exception for suspicionless blanket drug testing of candidates for public office. It also rejected it where a hospital initiated a program of drug testing pregnant women and disclosing the information to prosecutors.
In Heckenkamp, the 9th Circuit found that the special needs exception applied because Savoy remotely searched Heckenkamp’s computer for the purpose of securing the Mail2 server, and not with a motivation to collect evidence for law enforcement purposes. The court then balanced the need to search against the intrusiveness of the search, and ruled that what Savoy did was permissible.
The application of “special needs” here is pretty narrow, and tied closely to the facts of this case. The court, for example, took into account that Savoy did not delete or modify any of the files on Heckenkamp’s computer; was logged into the machine for only 15 minutes; and sought only to verify that the same computer that had been connected at 117 was now using 120.
Still, I think the 9th Circuit got it wrong. Remember, Savoy’s search began after he discovered that someone using the university’s Mail2 server had logged into Heckenkamp’s machine. The 9th Circuit classifies this as evidence that Heckenkamp’s computer was the source of the hack. But as far as Savoy knew, Mail2 compromised Heckenkamp’s computer, not the other way around. Only the remote search produced evidence to the contrary. (Editor’s note: the University of Wisconsin stands by the remote search.)
Additionally, Savoy had other reasonable, and less intrusive, ways to protect the university, including blocking the suspect computer’s Ethernet address. Finally, Savoy’s searching wasn’t limited to determining that the 117 computer was now 120. He did several searches, for 15 minutes, looking for incriminating files and making screen shots.
The larger problem may be that the court overlooked the fact that, regardless of what Savoy’s stated motives were, it’s clear that he searched a particular person’s computer because he was suspicious of that person, and with the knowledge that whatever information he found he would give to law enforcement. Savoy may have been acting to protect the university, but he was also investigating the offense. That should have made his warrantless search unconstitutional.
While U.S. v. Heckenkamp says networked computers can be private, and applies the “special needs” exception in a narrow way, future prosecutors will try to expand it. Many searches in response to computer security breaches have dual purposes: fix the breach and make a case against the intruder. It will be hard for the courts to parse dual motivations to determine whether the Heckenkamp exception applies.

 

Ky. Sup. Ct. hears oral arguments on Bad Faith Settlement Claim. Appellant alleges insurance company attorney understated policy limits to obtain lowball settlement.

Wednesday, April 11th, 2007

Brandon Ortiz reporting in the Herald-Leader discusses a case heard in oral arguments by the Ky. Supreme Court this week.  Read the full Herald-Leader article at: http://www.kentucky.com/454/story/39381.html

 

This case raises the issue of Bad Faith claims arising after the filing of litigation and the relationship of the defense lawyer between the insurance company and the person who is insured by the insurance company.

 

The Herald-Leader articles reports:

“During oral arguments yesterday, the Kentucky Court of Appeals was posed a question that’s being closely watched by the insurance industry: Are the lawyers that insurance companies provide for their customers acting on behalf of the insurance company instead of just the customer?  The insurance industry says no. “

“In a brief filed as part of Cincinnati Insurance’s appeal, a group of insurance defense lawyers says it’s always been Kentucky law that the defense lawyer’s only client is the insured driver — even if the insurance company is paying the bills and is on the hook for the settlement or jury verdict.?

George Hofmeister, a Bourbon County horseman and entrepreneur, was injured in a head-on car crash in November 1998.
In 2002, a Scott County jury awarded Hofmeister $28 million after finding that the insurance company had acted in bad faith by delaying an insurance payment, then misrepresenting the amount of coverage that was available. A judge later reduced the award to $20 million.
Hofmeister’s attorney, J. Dale Golden of Lexington  says “Cincinnati Insurance offered $25,000 to settle Hofmeister’s personal injury lawsuit against Clark about a week before trial. The morning of trial, it upped the offer to $1 million.?

Golden alleges that the insurance company’s lawyer. Dan Murner, represented the policy limits as only being $1 million.  In actuality, Dasher’s policy limit was $5 million. Golden says Hofmeister settled for less than he could have.
“Golden says Cincinnati Insurance also acted in bad faith by initially denying Clark was working at the time of the crash, which made Dasher’s insurance responsible for claims rather than Clark’s personal insurance. He said Cincinnati Insurance made that claim even though it had already concluded that it had to cover Clark.?
Gregg E. Thornton and Luke A. Wingfield in a friend of court brief wrote for The Kentucky Defense Counsel that if Hofmeister’s case stands, “it will threaten the ability of retained counsel to provide independent representation and for the public to be adequately represented in cases in which their defense is paid for by third parties,”…

Trial lawyers say that in recent years insurance companies have become more aggressive in defending insurance claims and are “resorting to tactics intended to force claimants to accept lowball offers.?

Kentucky law does not require Insurance companies to divulge policy limits until the filing of a lawsuit by the plaintiff.  After the filing, the amounts of insurance coverage are discoverable. An attorney who lies about any material issue would violate the Code of Professional Conduct and could be sanctioned by the Ky. Bar Association.

“Golden says his client’s case will not usher in any of the changes the insurance industry is predicting. He said the relationship between defense attorneys and insured drivers was changed in a Kentucky Supreme Court ruling last year, Knotts vs. Zurich Insurance Co. It held that Kentucky’s Unfair Claims Settlement Practices Act continues to apply after an injury victim has filed suit against the other driver.
Before the Knotts decision, insurance companies could not be sued for bad-faith claims handling once a lawsuit was filed against the insured. The thinking was that cases at that point are handed over to lawyers. Cincinnati Insurance asked yesterday for the Knotts decision to be overturned.?

While the Ky. Supreme Court overruled the trial court and Court of Appeals in Knotts, and held that the Bad Faith Claims Settlement Act did apply to post filing of litigation violations, it limited the use of bad faith conduct occurring during the litigation phase of the case.

See excerpts from: Knotts v. Zurich Insurance Company, No. 2004-SC-0400-DG (Ky. 5/18/2006) (Ky., 2006) :

Appellant, Lloyd Knotts, was seriously injured in a construction accident while performing construction work under a contract for a company. He initiated a claim with the company’s insurer and later filed a personal injury action against the company. He subsequently filed a bad-faith suit against the company’s insurer for violations of Kentucky’s Unfair Claims Settlement Practices Act (UCSPA). The suit included allegations of violations that occurred after the filing of his personal injury action. The lower courts rejected Knotts’s bad faith claim on grounds that the UCSPA is inapplicable to an insurance company’s conduct that occurs after the commencement of an underlying tort action. Because we hold that the UCSPA continues to apply during litigation, we reverse.
 

Specifically, Knotts claimed that Zurich had violated Kentucky’s UCSPA, KRS 304.12-230, in the course of litigating the underlying tort case and the resulting appeal. The trial court granted a summary judgment in favor of Zurich, holding that KRS 304.12-230 applied only to an insurer’s conduct before the commencement of litigation. The Court of Appeals affirmed, and we granted discretionary review.

 

The “right” being asserted arises under the insurance policy and is the right to compensation for injuries for which liability has been established. Thus, “claim,” as used in the statute, means an assertion of a right to remuneration under an insurance policy once liability has reasonably been established. This is usually done by making the claim directly to the insurance company, which then engages in the claim adjustment process. But it may also be accomplished by instituting litigation, which is simply another means of asserting the right under the insurance policy. Though litigation is distinct from the claims adjustment process in that it specifically invokes the courts’ power to decide the issue of liability, both procedures are simply methods of pursuing claims under an insurance policy. It is often the case that both methods are employed, with litigation following (or preempting) the claim adjustment process.
        The commencement of litigation by the filing of a complaint, even when the claim adjustment process is underway, however, does not change the fundamental nature of what the claimant seeks. The “claim” — for compensatory payment under the insurance
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policy-is the same as before the litigation began. The claimant has simply opted to seek satisfaction of the claim through a different procedure. Nothing in KRS 304.12-230 limits its applicability to pre-litigation conduct, and since the statute applies to “claims,” it continues to apply to an insurer so long as a claim is in play. As such, we hold that KRS 304.12-230 applies both before and during litigation.

We also note that this approach is consistent with that of almost every other jurisdiction to have addressed the issue. Those courts have consistently held that the duty of good faith, whether an inherent aspect of the insurance contract or a statutory
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construct, continues during any litigation that is brought to determine liability for the underlying tort. See, e.g., White v. Western Title Ins. Co., 710 P.2d 309, 316-17 (Cal. 1985)
 Defensive pleading, including the assertion of affirmative defenses, is communication protected by the absolute litigation privilege. Such pleading, even though allegedly false, interposed in bad faith, or even asserted for inappropriate purposes, cannot be used as the basis for allegations of ongoing bad faith. No complaint can be grounded upon such pleading.
  An attorney in litigation is ethically bound to represent the client zealously within the framework provided by statutes and the Rules of Civil Procedure. These procedural rules define clear boundaries of litigation conduct. If a defense attorney exceeds the boundaries, the judge can strike the answer and enter judgment for the plaintiff, enter summary judgment for the plaintiff, or impose sanctions on the attorney. See White, 221 Cal.Rptr. at 525, 710 P.2d at 325, (Lucas, J., concurring and dissenting). There is no need to penalize insurers when their attorneys represent them zealously within the bounds of litigation conduct. To allow a jury to find that an insurer acted in bad faith by zealously defending itself is to impose such a penalty.

 

 In some instances, however, evidence of the insurer’s post-filing conduct may bear on the reasonableness of the insurer’s decision and its state of mind when it evaluated and denied the underlying claim. Therefore, we do not impose a blanket prohibition on such evidence.

 

Evidence of post-filing conduct may often be of limited relevance to a claim of bad faith and raises distinct concerns about prejudice to the insurance company. While resolution of the tension between the competing considerations of probativeness and prejudice is an unquestioned requirement of the law of evidence, see KRE 403, we note that there has been heightened concern about this issue, as it applies to post-filing conduct, since courts began considering such evidence of bad faith. See White, 710 P.2d at 317 n.9.

 

Thus, while it will no doubt further limit the admissibility of post-filing behavior, we want to emphasize that before admitting evidence of post-filing behavior, courts must be careful to weigh the probativeness of the proposed evidence against its potential for prejudice, as required by KRE 403. See Timberlake Const. Co. v. U.S. Fidelity and Guar. Co., 71 F.3d 335, 341 (10th Cir. 1995) (“In light of existing case law and the public policy concerns …, … while evidence of an insurer’s litigation conduct may, in some rare instances, be admissible on the issue of bad faith, such evidence will generally be inadmissible, as it lacks probative value and carries a high risk of prejudice. See Fed.R.Evid. 401, 403.”).

 

Note:  It appears that the standard for considering bad faith claims was broadened slightly by the Knotts ruling.  But the Supreme Court did not expand bad faith claims to mean that merely litigating a claim was bad faith.  The trial court must determine if the probativeness of the alleged litigation violation outweighs the prejudicial value of the admission of such evidence.

 

In the Cincinnati Insurance case the defense attorney is alleged to have understated the amount of insurance coverage by 80%, and thereby benefiting from a settlement for $1 million when the policy limits were really $5 million.

 

The Knotts case states that the trial court “can strike the answer and enter  summary judgment for the plaintiff and impose sanctions upon the attorney.?  Such a sanction would not involve prejudice to the jury through the introduction of irrelevant evidence.