Archive for July, 2007

Lobbyists Take Revenge for Frankfort Plan to tax Lobbyists

Tuesday, July 31st, 2007

By PAUL GLASSER  July 30  The State Journal
Lobbyists say they plan to cancel or reschedule seminars, receptions and conferences to protest the city’s imposition of occupational tax and business license fees on themselves and others.
“This is a statement we’re going to make to the city,” said David Thompson, executive director of the Kentucky Press Association. “We don’t agree with the way things have been handled.”
Approximately 70 lobbyists met at the KPA offices for two hours on Monday to discuss proposed changes to the occupational tax and business license ordinance. The changes are designed to clarify the requirements and will receive a second reading before the City Commission next month.
The proposed ordinance would set a minimum threshold for compliance and require any “itinerant professionals,” including journalists, lobbyists and engineers, to pay the tax if they earn more than $1,600 for services provided inside city limits or work for more than two eight-hour workdays.
Workers who enter Frankfort to perform incidental duties, such as reporting or testifying, would be exempt from paying the tax.
Finance Director Steve Dawson said this morning he had not received any additional correspondence from the lobbyists. However, last week, City Solicitor Rob Moore said he thought the proposed changes would address the lobbyists’ concerns.
However, Tom Underwood, executive director of the Kentucky Society of Association Executives, said last week the proposed changes are different from anything lobbyists have discussed with city officials.
Lobbyist Donna Brown said she has already canceled one event in Frankfort and could cancel another.
Thompson said the lobbyists would continue to discuss their concerns with members of the City Commission. He said some lobbyists would probably attend the commission meeting on Aug. 27 to voice their concerns.
In addition to the informal boycott, Thompson said lobbyists would also work with state lawmakers to resolve the issue. He said the lobbyists did not discuss the possibility of challenging the ordinance in court because legislation could be approved during the 2008 session.
“That would probably be the faster avenue,” Thompson said.
While working in Frankfort, lobbyists have always been treated hospitably by local businesses, Thompson said. The decision to cancel or reschedule events is not designed to punish them, although Thompson said there would probably be a negative economic impact.
“We want to make a statement we are not pleased with what the city is doing,” he said.
Thompson said he would like the city to propose a flat tax instead of charging 1.75 percent of net profits and wages. Some lobbyists might pay the tax and fees for 2005 and 2006 in protest, Thompson said. They could then file amended returns for the county where they do most of their business and get a rebate.

Judge Martin Sheehan Exhibits Judicial Courage in Throwing Out Bad Law

Tuesday, July 31st, 2007

    Kenton District Judge Martin Sheehan has taken a courageous stand in upholding the constitution.  In a 37 page decision Judge Sheehan has found that KRS 17.495 is unconstitutional when applied to sex offenders retroactively to restrict the places where they can live.  Judge Sheehan provides extensive supporting authorities which provide guidance to others who face similar issues.  His decision is very persuasive even though it does not have the power of a precedent on the law involved.

   Any case involving a sex offender, is a risky adventure for any judge to consider.  Since sex offenders are not a favored constituency to anyone, it takes professional courage for a judge to stand up and apply the law without consideration of what negative effect it might create against him in the closed minds found in any community.  Being a candidate for the vacancy on the Kenton Circuit Court, adds an element of risk to the publication of such a decision.  

We can only hope that the wiser minds in the Kenton electorate will recognize that they have among their Judges a stand up guy who is not afraid to look a mob in the eye and tell them without flinching, what our founding fathers intended when they wrote the U.S. Constitution.

   A lesser judge would have written perhaps a paragraph and rubber stamped a ruling that found for the Commonwealth, and left the heavy lifting for the appellate courts.  But Sheehan, has carefully reviewed the law on this case and the result is one of the best written District Court decisions we have ever read…and we have read a lot of them.

  The reason a judge takes a risk ruling on a controversial issue such as sex offender residency laws, is because it is their job to do so.  Not every judge would have had the back bone to fulfill that duty so well. 

For full text of Decision by Kenton District Judge Martin Sheehan discussing Ex Post Facto sex offender residency law. Go to:  EX POST FACTO LAWS


Tuesday, July 31st, 2007

Special judge William Wehr yesterday ordered a stay in the civil trial of three attorneys who allegedly skimmed millions of dollars from the settlement of a diet-drug lawsuit.
Judge William Wehr sustained a motion for a stay by defendant attorneys William Gallion, Shirley Allen Cunningham and Melbourne Mills Jr. The three had sought a postponement to avoid having to defend themselves in the civil case while at the same time facing federal criminal charges growing out of the same diet-drug settlement.

The Plaintiff’s attorney Angela Ford argued that yesterday’s stay order gives Mills, Cunningham and Gallion more time to “dissipate” any assets that they might have to repay when the civil case is finally resolved.  Ford did not explain how efforts to dissipate the settlement funds would have been endangered by a delay of three months, after almost two years have expired since the settlement.  The court has already seized approximately $20 million dollars in the Charitable trust that was created with “left overâ€? funds.

“There’s a very clear impact if they (the plaintiffs) have no ability to collect the settlement funds that have been misappropriated from them,” she said. Delaying the case also constitutes a hardship for plaintiffs who are in financial difficulties and need a settlement, Ford argued.  
Ford would have benefited from a ruling on damages prior to the criminal trial, in that she would have been able to claim that her efforts had achieved an award of damages in favor of her clients.  Judge Wehr, had previously indicated that he might consider issuing a preliminary ruling awarding at least partial damages in the civil action.  Yesterday’s ruling did not award any damages. 

Wehr’s decision to refrain from a preliminary award of damages could work to the benefit of the Plaintiff’s as a Federal restitution order in the criminal action could save the plaintiff’s the amount of the potential contingent fee of Attorney Angela Ford.   Ford has claimed that her clients were entitled to some $100 million dollars.  A standard contingent fee on such an amount could have been $33 million dollars.

The stay, however, allows efforts at a settlement in the civil case to continue. A settlement conference is set for Monday August 6th. in Newport. Wehr’s refusal to issue a preliminary award of damages, would appear to provide incentive for all parties to seriously consider a settlement, which could prevent years of additional litigation.

The Federal criminal case is scheduled for trial in October.

Justice Lawyers Speak Out Against Gonzales. Risk Retalitation. Resignations Begin.

Saturday, July 28th, 2007


Published: July 28, 2007
WASHINGTON, July 27 — Daniel J. Metcalfe, a lawyer who began his government career in the Nixon administration and retired from the Justice Department last winter, said morale at the department was worse under Attorney General Alberto R. Gonzales than during Watergate.

John S. Koppel, who continues to work at the department as a civil appellate lawyer in Washington, wrote this month that he was “ashamed� of the department and that if Mr. Gonzales told the truth in recent Congressional testimony, “he has been derelict in the performance of his duties and is not up to the job.�

Even though they worry that it may hinder their career prospects, a few current and former Justice Department lawyers have begun to add to the chorus of Mr. Gonzales’s critics who say that the furor over his performance as attorney general, and questions about his truthfulness under oath, could do lasting damage to the department’s work.

It is a view that is widely shared on Capitol Hill, even more so after the grueling questioning of Mr. Gonzales on Tuesday at a Senate Judiciary Committee hearing at which his credibility was repeatedly challenged. After the hearing, several Democratic senators called for the appointment of a special prosecutor to investigate whether he committed perjury on Tuesday.

Lawmakers and senior Congressional aides from both parties said Mr. Gonzales had lost almost all ability to influence the administration’s agenda in Congress, denying the president what should be an important voice on issues including terrorism, immigration and civil rights.

“The attorney general’s loss of credibility not only harms him personally, it diminishes the Justice Department and undermines the president’s ability to move some of his most sensitive legal issues through the Hill because the trust factor doesn’t exist with his attorney general,� said Representative Adam H. Putnam of Florida, a Gonzales critic who is chairman of the House Republican Conference.

“It is more than a distraction,� Mr. Putnam said, “and the consequences to the president are far greater than any one person.�

Mr. Gonzales is expected to be sidelined from any significant part in the debate on Capitol Hill this summer over legislation eagerly sought by the administration to update terrorist surveillance laws.

The Justice Department has insisted that its work goes on largely undisturbed. At this week’s Senate hearing, Mr. Gonzales said, “Morale in the department, I think, is good if you look at the output.� He said that “the wonderful career people at the department continue doing their job day in and day out, and justice is being served in this country.�

While administration officials and close allies acknowledge that some of President Bush’s aides may be eager to see Mr. Gonzales go, they say the attorney general continues to have the confidence of Mr. Bush, who has repeatedly shown that he resists making personnel decisions under political pressure.

In separate interviews, White House officials used virtually the same words in describing why Mr. Gonzales might remain at the department indefinitely: “Only one person matters� — the president.

Still, Mr. Gonzales’s policy opponents within the White House have used his perceived weakness as an opening to push proposals that he might otherwise have gone to the president to block. One person close to the administration recently attributed a new push to close the detention center at Guantánamo Bay, Cuba, in part to the bureaucratic weakness of Mr. Gonzales, who has opposed the move.

Notwithstanding Mr. Gonzales’s assurances, other department officials said that, by several measurements, the work of the department has been severely disrupted by his troubles, especially in recent months. There are vacancies through the senior ranks.

The department’s No. 2 official, Deputy Attorney General Paul J. McNulty, has resigned and is expected to leave next week; his departure is widely assumed to have resulted from the outcry over his role in the dismissal of nine United States attorneys last year. A permanent successor has not been named.

William W. Mercer, the nominee for the department’s third-highest job, associate attorney general, withdrew his name from consideration for the job last month after determining that his nomination would almost certainly be rejected by the Senate, and also because of his role in the firing of the prosecutors. There is no indication that the administration is close to finding another candidate.

Among the 93 United States attorneys, who serve as the chief federal prosecutors for their regions, there are 24 vacancies. The White House has announced nominations for only six of those offices, which means that several of the jobs may remain unfilled for the rest of the Bush administration.

Mr. Metcalfe, the retired lawyer who was the founding director of the department’s Office of Information and Privacy, said in an interview that the questions over Mr. Gonzales’s competence and credibility had shattered morale at the department, especially after the attorney general’s testimony this week before the Senate Judiciary Committee.

“When you have an attorney general with his personal integrity and credibility so repeatedly reduced to shreds, not to mention in so public a forum, that’s just antithetical to the very nature of the Justice Department and its role in upholding the rule of law,� Mr. Metcalfe said. “This is the Department of Justice and the attorney general, where absolute integrity is Job 1.�

In an opinion article that was first published this month in The Denver Post and has since been circulated in the department, Mr. Koppel, the civil appellate lawyer, said that under the Bush administration the department had been “thoroughly politicized in a manner that is inappropriate, unethical and indeed unlawful.�

Mr. Koppel, who has been with the department since 1981, wrote that his decision to issue such a public criticism of Mr. Gonzales and the department “subjects me to a substantial risk of unlawful reprisal from extremely ruthless people who have repeatedly taken such action in the past.�

“But I am confident,� Mr. Koppel continued, “that I am speaking on behalf of countless thousands of honorable public servants, at Justice and elsewhere.�


Brad Cowgill to Serve as Interim Council on Postsecondary Education President. He deserves a chance for the permanent job.

Friday, July 27th, 2007

The search committee to appoint an interim president for the Council on Postsecondary Education named Brad Cowgill, state budget director, to the position late yesterday.
Cowgill’s contract begins Sept. 1 and he is expected to serve through the next session of the general assembly. He will be paid $275,000 a year.
 “I am honored by the confidence which the members of the Council have placed in me and I look forward to working with the university presidents, legislators and the governor in fulfilling the state’s 2020 goals,� said Cowgill.

The only bad thing we see about the appointment of Cowgill is that the Council also announced that they planned to not consider him for the permanent appointment for the job.   We believe that Cowgill deserves a chance to be considered for the permanent job if he is good enough for the interim job.

Board representatives were quoted as saying they were going to conduct a national search, and if they were to give Cowgill a chance to be reviewed by the selection committee that other potential nominees might be scared off.

Cowgill is generally considered as one of the brighter lights brought into the Fletcher Administration.  His past position being in charge of the state budget operations indicates that he is a skilled and knowledgeable public servant.  While he has said to have been close to Gov. Fletcher, he has busied himself by fulfilling skill demanding jobs and staying away from most of the partisanship inherent in executive level state jobs.

The Council is the state’s coordinating agency for postsecondary and adult education. The Council is charged with leading the reform efforts, including doubling the number of Kentuckians with a bachelor’s degree by the year 2020, as envisioned by state policy leaders in the Kentucky Postsecondary Education Improvement Act of 1997.


Friday, July 27th, 2007

WASHINGTON, July 26 — The director of the F.B.I. offered testimony Thursday that sharply conflicted with Attorney General Alberto R. Gonzales’s sworn statements about a 2004 confrontation in which top Justice Department officials threatened to resign over a secret intelligence operation.

The director, Robert S. Mueller III, told the House Judiciary Committee that the confrontation was about the National Security Agency’s counterterrorist eavesdropping program, describing it as “an N.S.A. program that has been much discussed.� His testimony was a serious blow to Mr. Gonzales, who insisted at a Senate hearing on Tuesday that there were no disagreements inside the Bush administration about the program at the time of those discussions or at any other time.

The director’s remarks were especially significant because Mr. Mueller is the Justice Department’s chief law enforcement official. He also played a crucial role in the 2004 dispute over the program, intervening with President Bush to help deal with the threat of mass resignations that grew out of a day of emergency meetings at the White House and at the hospital bedside of John Ashcroft, who was then attorney general.

In a separate development, Senate Democrats, who were unaware of Mr. Mueller’s comments, demanded the appointment of a special counsel to investigate whether Mr. Gonzales committed perjury in his testimony on Tuesday about the intelligence dispute. The Senate Judiciary Committee, meanwhile, issued a subpoena to Karl Rove, the White House senior political adviser, and another presidential aide, J. Scott Jennings, for testimony about the dismissal of federal prosecutors, another issue that has dogged Mr. Gonzales.

White House officials said the Democrats had engaged in political gamesmanship.

“What we are witnessing is an out-of-control Congress which spends time calling for special prosecutors, starting investigations, issuing subpoenas and generally just trying to settle scores,� said Scott M. Stanzel, a White House spokesman. “All the while they fail to pass appropriations bills and important issues like immigration reform, energy and other problems go unanswered.�

The conflict underscored how Mr. Gonzales’s troubles have expanded beyond accusations of improper political influence in the dismissal of United States attorneys to the handling of the eavesdropping program, in which Mr. Gonzales was significantly involved in his previous post as White House counsel.

“I had an understanding that the discussion was on a N.S.A. program,� Mr. Mueller said in answer to a question from Representative Sheila Jackson Lee, Democrat of Texas, in a hearing before the House Judiciary Committee.

Asked whether he was referring to the Terrorist Surveillance Program, or T.S.P., he replied, “The discussion was on a national N.S.A. program that has been much discussed, yes.�

Mr. Mueller said he had taken notes of some of his conversations about the issue, and after the hearing the committee asked him to produce them.

An F.B.I. spokesman declined Thursday night to elaborate on Mr. Mueller’s testimony.

In a four-hour appearance before the Senate Judiciary Committee on Tuesday, Mr. Gonzales denied that the dispute arose over the Terrorist Surveillance Program, whose existence was confirmed by President Bush in December 2005 after it had been disclosed by The New York Times. Mr. Gonzales said it centered on “other intelligence activities.�

Brian Roehrkasse, a spokesman for the Justice Department, said Thursday night that Mr. Gonzales had testified truthfully, saying “confusion is inevitable when complicated classified activities are discussed in a public forum where the greatest care must be used not to compromise sensitive intelligence operations.�

The spokesman said that when Mr. Gonzales had said there had been no controversy about the eavesdropping operation, he was referring only to the program to intercept international communications that Mr. Bush publicly confirmed.

“The disagreement that occurred in March 2004 concerned the legal basis for intelligence activities that have not been publicly disclosed and that remain highly classified,� Mr. Roehrkasse said.

The four senators seeking an inquiry into Mr. Gonzales’s testimony sent a letter to the Justice Department saying “it is apparent that the attorney general has provided at a minimum half-truths and misleading statements.�

The senators asked for the appointment of a special counsel. While the Justice Department is not obliged to act on their request, the letter reflected the chasm of distrust that has opened between lawmakers on the Judiciary Committee and Mr. Gonzales.

The senators who signed the letter were Russell D. Feingold of Wisconsin, Dianne Feinstein of California, Charles E. Schumer of New York and Sheldon Whitehouse of Rhode Island. Ms. Feinstein, Mr. Feingold and Mr. Whitehouse are members of the Intelligence Committee and have been briefed on the intelligence programs at issue.

The senators’ letter was sent to Paul D. Clement, the solicitor general, because Mr. Gonzales is recused from investigations of his own conduct. In addition to his statements to Congress about the intelligence controversy, the letter raised the possibility that Mr. Gonzales had lied about the prosecutor firings.

In what amounted to a warning to the attorney general, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, sent Mr. Gonzales the transcript of Tuesday’s hearing, asking him to “mark any changes you wish to make to correct, clarify or supplement your answers so that, consistent with your oath, they are the whole truth.�

Similar requests are routinely sent to witnesses after hearings, but Mr. Leahy’s pointed language underscored his view of the seriousness of the dispute over Mr. Gonzales’s veracity.

Still, neither Mr. Leahy nor Senator Arlen Specter of Pennsylvania, the committee’s top Republican and a tough critic of Mr. Gonzales, joined in the call for a perjury investigation.

“I don’t think you rush off precipitously and ask for appointment of special counsel to run that kind of an investigation,� Mr. Specter said.

Doubts about Mr. Gonzales’s version of events in March 2004 grew after James B. Comey, the former deputy attorney general, testified in May that he and other Justice Department officials were prepared to resign over legal objections to an intelligence program that appeared to be the N.S.A. program.

Mr. Gonzales’s testimony Tuesday was his first since Mr. Comey’s account drew national attention. He stuck to his account, repeatedly saying that the dispute involved a different intelligence activity.

Mr. Gonzales described an emergency meeting with Congressional leaders at the White House on March 10, 2004, to discuss the dispute. That evening, he and the White House chief of staff, Andrew H. Card Jr., went to the hospital bedside of Mr. Ashcroft in an unsuccessful effort to get his reauthorization for the secret program.

Lawmakers present at the afternoon meeting have given various accounts, but several have said that only one program, the Terrorist Surveillance Program, was discussed.

In addition, in testimony last year, Gen. Michael V. Hayden, who was the N.S.A. director when the program started and now heads the Central Intelligence Agency, said the March 2004 meeting involved the Terrorist Surveillance Program.



Friday, July 27th, 2007

July 27, 2007    AP

PHOENIX – A sharply divided Arizona Supreme Court ruled that it violates Fourth Amendment rights for police to search an arrested person’s car without a warrant when the scene is secure and the person is handcuffed, seated in a patrol car and under an officer’s supervision.

The issue has implications for personal privacy and police officers’ safety, and the state high court’s 3-2 ruling issued Wednesday in the Tucson case represents a dramatic departure in how such everyday circumstances involving traffic stops and other common situations have been handled by law enforcement.

A lawyer who argued the case on behalf of the state said the ruling may be appealed to the U.S. Supreme Court but that Arizona police must comply with it unless and until it is overturned.

Relying on interpretations on past rulings by federal and state appellate courts, Arizona police have felt free to conduct post-arrest searches of vehicles’ passenger compartments in order to check for weapons that could pose a threat to officers and for criminal evidence that could be destroyed.

Now, “if you arrest the driver, it’s not clear when they can search the car and when they can’t,” said Randall Howe, chief criminal appeals lawyer for the state Attorney General’s Office. “Now there is no bright line.”

Thomas J. Jacobs, a Tucson attorney for the defendant in the case, agreed and said the ruling could affect hundreds or even thousands of Arizona cases awaiting trial or pending appeal by requiring that authorities prove there were actual and justifiable circumstances allowing warrantless searches.

The ruling said the need for searches under officer-safety and evidence-preservation exceptions to constitutional protections from warrantless searches didn’t exist in circumstances such as those in the case decided in Wednesday’s ruling.

“In this technological age, when warrants can be obtained within minutes, it is not unreasonable to require that police officers obtain search warrants when they have probable cause to do so to protect a citizen’s right to be free from unreasonable governmental searches,” Vice Chief Justice Rebecca White Berch wrote for the majority.

 Justices Michael D. Ryan and Andrew D. Hurwitz agreed with Berch. Justice W. Scott Bales wrote in a dissent joined by Chief Justice Ruth V. McGregor that the majority’s ruling conflicted with a 1981 U.S. Supreme Court decision on warrantless searches of vehicles.

Jacobs said it’s likely the top U.S. court would agree to hear an appeal by the state because his client’s claim was based only on the federal Fourth Amendment, not the Arizona Constitution’s equivalent privacy guarantee, and because numerous other state and federal courts have ruled differently from the Arizona court on the issue.
“This is a certainly a very significant ruling in the area of Fourth Amendment law,” Jacobs said. “The U.S. Supreme Court really has to deal with it now.”

In the case that produced the ruling, police on Aug. 25, 1999, seized cocaine and drug paraphernalia after Rodney Gant got out of his parked car and was arrested about 10 feet away by officers who had earlier learned that Gant was named on an arrest warrant for driving with a suspended license.

Gant had been handcuffed and placed in a locked patrol car under police supervision by the time police searched his car.

Lawyers for Tucson and two law enforcement organizations representing Arizona police chiefs and lawyers who train police had argued that post-arrest vehicle searches are vital for officer safety and that officers need a rule that is simple to understand.


Thursday, July 26th, 2007

Judge Wehr says he may issue a partial ruling on damages, before trial in the Fen Phen civil case. This ruling if actually made, may cost the Fen Phen victims $33 million in attorney fees. 

   Fen Phen plaintiff’s attorney Anglea Ford said “it’s too late for the three defendants� to  waive their Fifth Amendment rights against being forced to testify in the civil case against them, because they already had testified in discovery proceedings in the civil case and thereby have waived their right against self-incrimination.

Subsequent to the filing of the civil cases, the Federal Government obtained indictments against Shirley Cunningham, Melbourne Mills, and William Gallion for allegedly not paying their clients the share of a $200 million settlement to which they were entitled.

Special Judge William Wehr, has indicated that he may delay the civil trial scheduled for September until after the October criminal trial.

Judge Wehr also indicated that he may make a partial ruling on damages prior to the trial and leave claims for punitive damages to be heard by a jury.  A partial preliminary ruling will strengthen the claim of Angela Ford for an attorney’s fee by allowing her to claim that she obtained an award before the Federal Government obtained their restitution order.  While that would be nice for Angela Ford, it may have the effect of separating the some 400 plaintiffs Ford represents from $33 million dollars ($100 million claimed less Ford’s contingent fee.)

If Judge Wehr continues the civil trial in his court, and doesn’t make a preliminary finding on damages until after the Federal criminal charges against the three Lexington attorneys is heard, then the 400 Fen Phen litigants may be relieved from their attorneys claim for a contingent fee of some $33 million.

    The U.S. Attorneys Office has indicated that they are seeking restitution for the disputed funds in the criminal action.  If the funds are recovered through the criminal action, there will be no imposition of attorney’s fee for the amount collect. Ford would not likely earn a fee on those funds.  If the funds are recovered through Ford’s civil action, then she stands to earn as much as $33 million if her claims are upheld and the funds actually collected.

The issue of Ford’s potential $33 million contingent fee appears to put her in a conflict with the interests of her 400 Fen Phen clients by her act of opposing the continuance of the civil trial. If the Federal criminal trial goes first, and if the U.S. Attorney is successful in obtaining an order of restitution for any damages, then there would not appear to be any reason for a state civil trial to try to reclaim the same money already awarded by the Federal court.  This would save the civil litigants thousands of dollars in additional court and trial costs, and possible years of appeals.

   Ms. Ford claims that when the three Lexington attorneys gave depositions in the civil case, and turned over documents regarding the settlement, that they waived any right to refuse to testify in the civil and criminal cases.   That theory appears to be unsupported by a number of rulings.  We suggest the courts have dealt with this issue on previous occasions and have reached results directly contrary to Ms. Ford’s legal theories regarding the Fifth Amendment.


Newman v. Stinson, 489 S.W.2d 826 (Ky., 1972)    October 20, 1972

“The Fifth Amendment provides in part that no person shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty or property without due process of law. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), it was held that the protection of the Fifth Amendment against self-incrimination extends only to evidence of a testimonial nature.�

Com. v. Blincoe, 34 S.W.3d 822 (Ky. App., 2000)    December 22, 2000

“The courts of this Commonwealth zealously protect the rights granted individuals pursuant to the Fifth Amendment of the United States Constitution and Section 11 of the Kentucky Constitution, both of which provide that a witness cannot be compelled to incriminate himself. Commonwealth v. Cooper, Ky., 899 S.W.2d 75, 77 (1995). Further, in order to prevent prejudice to a defendant, the Commonwealth may not call a witness it knows will take the Fifth Amendment on the stand. “




See:  PARALLEL PROCEEDINGS – CIVIL ACTIONS, CRIMINAL CASES  This article on LawReader discusses a number of precedent cases where the right against self-incrimination under the 5th. amendment was allowed to be asserted in an action even though a deposition was given in another action.  The law does not favor blanket waivers of immunity.  These rulings strongly rebut Ms. Ford’s claim that giving a deposition in a civil case acts as a blanket and permanent waiver in all subsequent cases.


   If  Judge Wehr proceeds with the civil case first, then he may have to confront the possibility of the three civil defendants asserting their 5th. Amendment  rights not to testify.  If he forces them to testify then he risks granting them immunity from criminal prosecution.  A witness is entitled to immunity from a criminal prosecution if he is required to testify despite his constitutional privilege against self-incrimination.


   The Court of Appeals of North Carolina has discussed a relevant case. In this decision they held that the granting of a deposition in a civil case did not waive the right to later assert one’s Fifth Amendment rights.


Staton v. Brame, 136 NC App 170 (98-1501) 12/21/1999


“Constitutional Law–self-incrimination–different proceeding
    The trial court erred by granting a motion to compel defendant Brame’s response to deposition questions in this state action involving misappropriation of funds when he had previously given relevant testimony in a deposition as part of federal bankruptcy/equitable distribution proceedings. The federal bankruptcy/equitable distribution proceeding is a separate proceeding from the state court action, and defendant’s waiver of his right against self- incrimination in the federal proceeding did not apply in the state court action.â€?


“…   An analogous issue arose in State v. Pearsall, 38 N.C. App. 600, 248 S.E.2d 436 (1978). Pearsall involved an armed robbery in which two defendants were charged, then tried separately. One defendant, Williams, after being convicted, entered notice of appeal. Williams then provided self-incriminating testimony at her co-defendant’s first trial. However, when Williams was called as a witness at the co-defendant’s second trial, she refused to testify, exercising her Fifth Amendment rights. Noting that Williams’ own appeal was still pending at the time she refused to testify when called as a witness in the second trial, we held that her testimony in the first trial did not operate as a waiver of her Fifth Amendment rights in the second trial. “


“It is the majority view that a witness who testifies to incriminating matters in one proceeding does not thereby waive the right to refuse to answer as to such matters on subsequent, separate, or independent trial or hearing.� Id. at 603, 248 S.E.2d at 438 (citations omitted).�


“… Mudd is readily distinguishable. A civil deposition in state court is manifestly different from an equitable distribution/bankruptcy proceeding in federal court. Not only are there significant procedural and jurisdictional differences, the two depositions have different purposes. Brame’s deposition in the bankruptcy matter pertained to resolution of equitable distribution matters between Brame and his former spouse; the attempted deposition in the case at bar apparently related to his authority to act on behalf of plaintiffs. Unlike the defendant in Mudd, Brame was not being asked to provide details underlying earlier testimony he had provided in the same type of proceeding before the same court. Therefore, Brame was entitled to exercise his right against self-incrimination under the Fifth Amendment of the United States Constitution, and the trial court erred when it granted Centura’s motion to compel Brame to answer deposition questions.â€?

“… Accordingly, it is unnecessary to address Brame’s claim under Article I, Section 23 of the North Carolina Constitution. “[B]ecause the United States Constitution is binding on the states, the rights it guarantees must be applied to every citizen by the courts of North Carolina, so no citizen will be ‘accorded lesser rights’ no matter how we construe the state Constitution.â€? State v. Jackson, 348 N.C. 644, 648, 503 S.E.2d 101, 103 (1998). We have determined that Brame effectively invoked his Fifth Amendment right against self-incrimination when he was deposed in the case at bar; he has no lesser right under our state constitution.â€?




There are numerous cases which suggest that it is an appropriate, although not mandatory,  procedure for a civil trial to be delayed pending a criminal trial involving the same parties.


See: Volmar Distrib., Inc. v. New York Post Co., 152 F.R.D. 36 (S.D.N.Y. 1993)


“The strongest case for granting a stay is where a party under criminal indictment is required to defend a civil proceeding involving the same matter. While the Constitution does not mandate a stay in such circumstances, denying a stay might undermine a defendant’s Fifth Amendment privilege against self-incrimination. Refusing to grant a stay might also expand the rights of criminal discovery beyond the limits of Fed. R. Crim. P. 16(b), expose the basis of the defense to the prosecution in advance of trial, or otherwise prejudice the case.â€? 



There are also cases which suggest that if a judge orders a defendant to testify even though he has asserted his Fifth Amendment right not to testify, that the court may

automatically be granting immunity from criminal prosecution to the defendant.


Informal offers of immunity from tend to be binding in the federal courts out of fairness. The courts have developed a concept of ‘nonstatutory’ immunity whereby the courts will enforce informal or procedurally flawed grants of immunity on equitable grounds. This concept of immunity may apply when a court forces a defendant to testify even though he has asserted his Fifth Amendment right to remain silent.  Federal Courts have “honoredâ€? immunity agreements made by a state. 

See: Baxter v. Palmigiano, 425 U.S. 308 (1976) “(prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered whatever immunity is required to supplant the privilege and may not be required to waive such immunity).�




See: Gardner v. Broderick, 392 U.S. 273 (1968).

“The privilege against self-incrimination is applicable to state as well as federal proceedings. U.S. Const. amend V. The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.�




Thursday, July 26th, 2007

BOSTON, Massachusetts (AP) – A federal judge Thursday ordered the government to pay more than $101 million in the case of four men who spent decades in prison for a 1965 murder they didn’t commit after the FBI withheld evidence of their innocence.
The FBI encouraged perjury, helped frame the four men and withheld for more than three decades information that could have cleared them, U.S. District Judge Nancy Gertner said in issuing her ruling Thursday.
She called the government’s argument that the FBI had no duty to get involved in the state case “absurd.”
Peter Limone, Joseph Salvati and the families of the two other men who died in prison had sued the federal government for malicious prosecution.
They argued that Boston FBI agents knew mob hitman Joseph “the Animal” Barboza lied when he named the men as killers in the 1965 death of Edward Deegan. They said Barboza was protecting a fellow FBI informant, Vincent “Jimmy” Flemmi, who was involved.
The four men convicted on Barboza’s lies were treated as “acceptable collateral damage” because the FBI’s priority at the time was taking down the Mafia, their attorneys said.
*                       WCVB:  Men spent decades behind bars
A Justice Department lawyer had argued that federal authorities couldn’t be held responsible for the results of a state prosecution and had no duty to share information with the officials who prosecuted Limone, Salvati, Henry Tameleo and Louis Greco.
“The FBI’s misconduct was clearly the sole cause of this conviction,” the judge said Thursday. “The government’s position is, in a word, absurd.”
“No lost liberty is dispensable. We have fought wars over this principle. We are still fighting these wars,” Gertner told the packed courtroom.
Salvati and Limone were exonerated in 2001 after FBI memos dating back to the Deegan case surfaced, showing the men had been framed by Barboza. The memos were made public during a Justice Department task force probe of the FBI’s relationship with gangsters and FBI informants James “Whitey” Bulger and Stephen “the Rifleman” Flemmi.
Limone, now 73, and Salvati, 75, stared straight ahead as the judge announced her ruling. A gasp could be heard from the area where their friends and family were sitting when Gertner said how much the government would be forced to pay.
The men’s attorneys had not asked for a specific amount in damages, but in court documents they cited other wrongful conviction cases in which $1 million was awarded for every year of imprisonment. Gertner ordered the government to pay $101.7 million.
“Do I want the money? Yes, I want my children, my grandchildren to have things I didn’t have, but nothing can compensate for what they’ve done,” Salvati said.
Salvati had been sentenced to life in prison as an accessory to murder and served more than 29 years before his sentence was commuted in 1997.
“It’s been a long time coming,” said Limone, who served 33 years in prison before he was freed in 2001. “What I’ve been through — I hope it never happens to anyone else.”
Justice Department attorney Bridget Bailey Lipscomb declined immediate comment on the ruling.
All About Federal Bureau of Investigation • U.S. Department of Justice

6th. Circuit holds that Email content is Constitutionally Protected

Thursday, July 26th, 2007

(1) Federal Appeals Court Holds Email Content Is Constitutionally Protected 

(2) IP Addresses, E-mail “To” and “From” Data Not Protected – Court Ruling 

In the past month, two federal appeals courts have grappled with the Constitutional status of Internet communications. Their rulings have substantial implications for privacy, and raise anew concerns that existing law may not be sufficient to protect Americans’ privacy in the digital age. 

In an important case, the federal appeals court for the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee) ruled on June 18 that email users generally enjoy a constitutionally-protected right of privacy in the content of their email as it sits in storage with a service provider. The court also declared unconstitutional a provision of the Electronic Communications Privacy Act that allows government investigators to use a subpoena or court order issued on less than probable cause to obtain older email without notice to the person whose email is being disclosed. 

The rule established by the court is simple: in order to obtain email from a service provider, either a) the government must obtain a search warrant issued under the relatively high standard of probable cause set forth in the Fourth Amendment, or b) if the government wants to use a mere subpoena or a court order issued on less than probable cause, it must provide notice to the person whose communications are being sought, giving that person an opportunity to object. 

For Internet users, the ruling is a small but significant victory for privacy. The Justice Department has argued that email, while protected in transit, loses the full protection of the Constitution after it reaches a user’s “inbox” on the computer of a service provider. The 1986 Electronic Communications Privacy Act set up a complicated set of rules according different protection to email depending on how and for how long it is stored. The Sixth Circuit cuts through all of that, bringing email under a single, Constitutionally based rule. 

The ruling will likely channel more law enforcement efforts to obtain the contents of older, stored email into the warrant arena — with its higher probable cause standard — especially when government investigators do not want to give notice to the target of their investigation. As a result, sensitive email content information will likely be accessed later in an investigation, when there is sufficiently strong suspicion to establish probable cause. Therefore, the decision may make it less likely that law enforcement will access the email of innocent persons. 

From a corporate perspective, the ruling brings some needed simplicity to the rules governing disclosure of stored email. The ruling should be welcome to email providers for another reason: as Internet users remain acutely sensitive to privacy, this case gives them some measure of confidence, marking out one area where online communications enjoy constitutional protection. While the U.S. Justice Department is likely to seek to overturn the decision, the case actually should not have a major impact on law enforcement practices, since under ECPA law enforcement agencies already have to obtain a warrant to get current email. 

The premise of the court’s constitutional ruling — that email users reasonably expect that an email is a private communication between sender and recipient — is obviously true, as reflected in the widespread reliance on email for sensitive communications in commerce, government and personal relations. Perhaps the only thing remarkable about the case is that the regular federal courts had never addressed the constitutional issues it raised. 

The Justice Department is likely to seek to have the ruling overturned by a larger panel of the Sixth Circuit and, in any case, the Department will not consider itself bound by the ruling outside the Sixth Circuit. 

Warshak v. United States 

CDT Report: “Digital Search and Seizure: Updating Privacy Protections to Keep Pace with Technology“ 

(2) IP Addresses, E-mail “To” and “From” Data Not Protected – Court Ruling 

While Warshak dealt with the content of communications, another court recently addressed the question of government access to transactional or signaling or routing data about communications. 

On July 6, the federal appeals court for the Ninth Circuit (California, Oregon and Washington) ruled that IP address information and the “to” and “from” lines of email are not constitutionally protected. In essence, the court upheld a provision of ECPA authorizing the government to intercept routing data with a pen register or trap and trace device, which are rubber-stamped by courts on a standard far lower than the probable cause standard specified by the Constitution. 

At some level, the Ninth Circuit decision in Forrester makes no new law. It accepts the current dichotomy between content and transactional data and applies it somewhat conservatively, in the sense that it approves pen/trap interception only of e-mail to/from information and IP addresses, not the URL that can show a search query or exactly what was read. (It specifically reserved the question whether the Fourth Amendment would protect URL information.) 

However, the court may have been too quick in assuming that an IP address does not convey content. Certainly, if an IP address points to only one website, and if the content on that website is all of one type (all anti-war, or all pornographic), that does reveal something. 

Also, while pen/trap decisions from the 1970s assumed that dialed number information does not even indicate whether the call was completed (pen/traps now do), Internet transactional information does show not only that a user “called” an IP address, but it also will show that the IP address responded by sending back the content of the homepage as it existed at that time. 

Additionally, it is not clear that the following factual statement in the court’s opinion was entirely accurate: “The only data obtained during the first phase of the investigation were the to/from addresses of [defendant] Alba’s e-mail messages, the IP addresses of the websites that Alba visited and the total volume of information sent to or from his account.” It is likely that the pen/trap process actually acquired a lot more than that and that the government then performed some analysis to extract “to” and “from” data and IP address. For example, “to” and “from” addresses on email do not stick out the way telephone dialing information sticks out: while telephone dialing information in the PSTN is actually carried on a separate channel, “to” and “from” information is buried in digital packets. Analyzing and extracting the “to” and “from” information takes effort, and the court probably should have paid more attention to how the government actually handled the bit stream it was accessing, to make sure that the government was not getting more than was authorized. 

More fundamentally, CDT questions the ongoing validity of the proposition that transactional data should be accorded zero Constitutional protection. The telephone cases that originated the transactional data doctrine were based on a pretty artificial judicial conclusion: Back in the 1970s, the Supreme Court said, in essence, “We know that everyone who makes a phone call knows that the phone company uses the dialing information to rout the call, so everyone who makes a call gives up any interest in the privacy of that information.” To the contrary, of course, whom you call and when and how often and whom you email does reveal a lot about your associations and activities and most people do believe it is sensitive and assume it will not be disclosed by the phone company or ISP. 

For these reasons, the issues at stake in Forrester merit closer analysis, which may occur on rehearing or in other cases. 

At a broader level, both of these cases highlight the disjointed nature of current law as it relates to electronic privacy and the application of Fourth Amendment protections in the digital world. Put simply, the law has not kept pace with the evolution of Internet technology. Judges and lawmakers must address these concerns and consider approaches to revitalize the Fourth Amendment in the face of technological change. 

United States v. Forrester 


Senator Arlen Spector challenges White House. Senator Rockefeller says Gonzales was untruthful in comments before Senate Judiciary Committee.

Wednesday, July 25th, 2007

Republican Senator threatens contempt steps if White House fails to appoint a special prosecutor. A.G. Gonzales says Solicitor General has authority to make such an appointment.

Marisa Taylor and Margaret Talev   McClatchy Newspapers   Jul. 25, 2007
WASHINGTON – A powerful Republican senator said Tuesday that if the Bush administration wouldn’t appoint a special prosecutor to investigate the firings of nine U.S. attorneys, Congress should consider starting contempt proceedings on its own against the White House.

The proposal from Sen. Arlen Specter of Pennsylvania, the senior Republican on the Senate Judiciary Committee, ratchets up a seven-month standoff between the White House and Congress over whether former and current White House officials should be compelled to testify or provide documents related to the firings.

The White House has refused to cooperate with congressional probes and has blocked testimony from several former and current White House aides. Last week, administration officials announced that they intend to prohibit the Justice Department from initiating any congressional effort to hold executive-branch officials in contempt of Congress.

Specter’s stand Tuesday suggests that some in Congress may see the White House stance as an institutional insult to their coequal branch of government under the Constitution. If Specter’s recommendation prevails, lawmakers of both parties could join in opposing the White House rather than Republicans siding reflexively with President Bush, as they often do in legislative clashes with Democrats.

Attorney General Alberto Gonzales told the Senate Judiciary Committee on Tuesday that he can’t appoint a special prosecutor because of his role in the prosecutors’ firings, but that U.S. Solicitor General Paul Clement could do so.

Specter said that if Clement didn’t act, Congress could initiate contempt proceedings on its own authority. Under that scenario, the Senate Judiciary Committee could initiate a congressional trial to determine whether White House Chief of Staff Joshua Bolten, former White House counsel Harriet Miers or others should be found in contempt for refusing to testify or turn over documents.

Rep. John Conyers, D-Mich., the chairman of the House Judiciary Committee, plans to pursue criminal contempt charges over the same issues today.

In an interview, Specter played down any inference that he was seeking a dramatic constitutional clash.

“We’re not going to go for any spectacles,” he said. “We want to have a mature, civil adjudication.”

Two other Republicans on the judiciary panel, Sens. Jeff Sessions of Alabama and Jon Kyl of Arizona, signaled that they aren’t inclined to support contempt proceedings as envisioned by Specter. Instead, they suggested that Congress could ask the courts to rule on the legitimacy of the president’s executive-privilege claim.

“I don’t think we should try to unilaterally figure out a way to just go to war with the White House over it,” Sessions said.

Senate Minority Whip Trent Lott, R-Miss., agreed: “The courts will make that decision. Let them decide.”

Asked how the question would get before the courts, given the Bush administration’s posture, Lott said: “I want to talk to Senator Specter about it.” Kyl said he did too.

Gonzales tried to deflect criticism of his attempts as White House counsel to persuade former Attorney General John Ashcroft to approve a warrantless wiretap program despite internal opposition to it. In May, former Deputy Attorney General James Comey testified that Gonzales and then-White House Chief of Staff Andrew Card had pressured Ashcroft in March 2004 to reauthorize the program as Ashcroft lay gravely ill in a hospital bed.

Comey said the Bush administration ran the program without the Justice Department’s approval for up to three weeks in 2004, nearly triggering a mass resignation of the nation’s top law enforcement officials.

Gonzales said the hospital visit had taken place only after the so-called “Gang of Eight” top congressional and intelligence committee leaders from both parties had told him to proceed with the program despite Comey’s opposition.

Sen. Jay Rockefeller, D-W.Va., the chairman of the Senate Select Committee on Intelligence, said he didn’t recall the Gang of Eight meeting as Gonzales described it.

“I think he was untruthful,” Rockefeller said.

White House Will Not Allow Justice Dept. to Assist Congressional Subpoena Cases

Wednesday, July 25th, 2007

Melanie Sloan  San Francisco Chronicle  July 24, 2007
The White House, by proclaiming that it will not let the Justice Department pursue contempt charges against a former White House official who failed to comply with a congressional subpoena for information regarding the firing of nine U.S. attorneys, has declared the executive branch to be superior, rather than co-equal, to the other two branches of government. Congress must look for other avenues of redress to protect its oversight role.
Even before the White House made its surprising announcement, seeking contempt charges posed problems for Congress. Namely, contempt charges against a former White House official such as counsel Harriet Miers would not result in Congress receiving any documents or testimony. Rather, Miers might be indicted and forced to stand trial for criminal contempt. Even if she were convicted, Miers would not have to testify or deliver documents and the question of whether the White House has properly invoked executive privilege might or might not be raised in higher courts. All a conviction would lead to is a potential sentence of up to one year in jail and a fine of up to $100,000.
In an effort to dodge the spectacle of Miers being criminally charged, the Bush administration has resurrected a 1986 Department of Justice Office of Legal Counsel opinion that the U.S. attorney is not required to prosecute an executive branch official carrying out the president’s instruction to assert executive privilege. The Bush administration is now relying on this non-binding legal opinion to take the radical — some might say Nixonian — position of ordering the Justice Department to ignore existing federal law and not file charges in a criminal case.
The Bush administration’s reliance on this old Office of Legal Counsel opinion has another hidden cost; although the opinion closed the door on the contempt option, it suggested a civil suit as another means to enforce a subpoena. So, if the administration relies on this opinion to claim the Department of Justice cannot bring a contempt case, it will be hard pressed to argue that Congress cannot proceed with a civil suit to enforce the subpoena.
That said, there has been some judicial reluctance to get involved in these matters in the past. In 1983, a judge refused to intervene in the only congressional subpoena contempt matter to be sent to a U.S. attorney. There, a House committee served a subpoena on EPA Administrator Anne Gorsuch and President Ronald Reagan sent her a memo instructing her to withhold certain documents. The full House cited Gorsuch for contempt, but one day before the matter was certified to the U.S. attorney, the Reagan administration filed a civil suit asking the court to find that Gorsuch acted lawfully. The court refused to get involved, instead urging the executive and legislative branches to cooperate and settle their difference, which they did.
Although other courts are not obligated to follow this decision, a judge hearing the enforcement of the subpoena against Miers might similarly choose to duck the issue. On the other hand, given the radical position the administration is staking out here, a court might feel obligated to consider such a case to preserve the judiciary’s constitutional role as a check on executive abuses. But leaving this to the discretion of any individual judge does not adequately protect Congress’ authority.
This leaves one final option: Congress could pass a statute specifically granting federal courts the authority to hear either just this specific matter or to hear any cases involving the enforcement of congressional subpoenas against the executive branch. In 1973, the Senate Select Committee on Presidential Campaign Finances sought civil enforcement of its subpoena for Watergate tapes and documents. After a lower court refused to hear the matter, Congress passed legislation authorizing jurisdiction over just this specific suit. Ultimately, the committee lost, namely because the House Judiciary Committee already had the tapes. Nonetheless, by enacting the statute, Congress had its day in court.
In the current showdown, Congress could not only provide federal courts with jurisdiction, it could also provide for direct review by the Supreme Court, thereby ensuring that the White House’s efforts to further expand the boundaries of executive privilege is heard while the administration is still in office. That alone would be a victory. In any event, the stalemate in which the Bush administration is taking an unprecedented and expansive view of executive power demonstrates how critical it is for Congress to provide the courts with the power to step in and resolve such controversies.
Melanie Sloan, a former assistant U.S. attorney, is the executive director of Citizens for Responsibility and Ethics in Washington (CREW).
This article appeared on page D – 9 of the San Francisco Chronicle

Washington Post Columnist says Attn. Gen. Gonzales should be fired for doing Jon Lovitz imitation.

Wednesday, July 25th, 2007

By E&P Staff   July 24, 2007  

NEW YORK Lovitz or leave it? Andrew Cohen, who writes the Bench Conference online column for The Washington Post, thought he was watching an old Saturday Night Live skit on Tuesday in viewing Attorney General Alberto Gonzales’ latest appearance before Congress.

Here is an excerpt from the column which followed, at, along with a bit of the transcript cited by Cohen.

No reasonable person watching Gonzales’ tragically comedic performance Tuesday’s on Capitol Hill– especially his miserable exchange with Sen. Charles Schumer (D-N.Y.) in late morning– can any longer defend his appalling lack of competence, courage and credibility. And no one who hears him say that he is what’s best for the Department right now should forget that on the eve of his testimony (and a few days after he urged his subordinates to work diligently to regain their morale) the nation’s top law enforcement official reportedly left work early to go for a bike ride Monday afternoon– at about 3:50 p.m.

I am running out of words to describe how inept this public servant is and how awful is the message our government sends to the nation and to the world by allowing him to continue to represent us. So I’ll just turn it over to Sen. Schumer. Here is part of the exchange between the two….

SCHUMER: How can we — this is constant, sir, in all due respect with you. You constantly make statements that are clear on their face that you’re deceiving the committee. And then you go back and say, “Well, I corrected the record two days later.” How can we trust your leadership when the basic facts about serious questions that have been in the spotlight, you just constantly change the story, seemingly to fit your needs to wiggle out of being caught, frankly, telling mistruths? It’s clear here. It’s clear. One program. That’s what you just said to me. That’s what locks this in. Because before that, you were, sort of, alluding — in your letter to me on May 17th, you said, “Well, there was one program,” — you said there was the program, TSP, and then there were other intelligence activities.

GONZALES: That’s correct.

SCHUMER: You wanted us to go away and say, “Well, maybe it was other” — wait a second, sir. Wait a second.

GONZALES: And the disagreements related to other intelligence activities.

SCHUMER: I’ll let you speak in a minute, but this is serious, because you’re getting right close to the edge right here.
You just said there was just one program — just one. So the letter, which was, sort of, intended to deceive, but doesn’t directly do so, because there are other intelligence activities, gets you off the hook, but you just put yourself right back on here.

GONZALES: I clarified my statement two days later with the reporter.

SCHUMER: What did you say to the reporter?

GONZALES: I did not speak directly to the reporter.

SCHUMER: Oh, wait a second — you did not.


OK. What did your spokesperson say to the reporter?

GONZALES: I don’t know. But I told the spokesperson to go back and clarify my statement…

SCHUMER: Well, wait a minute, sir. Sir, with all due respect — and if I could have some order here, Mr. Chairman — in all due respect, you’re just saying, “Well, it was clarified with the reporter,” and you don’t even know what he said. You don’t even know what the clarification is. Sir, how can you say that you should stay on as attorney general when we go through exercise like this, where you’re bobbing and weaving and ducking to avoid admitting that you deceived the committee? And now you don’t even know. I’ll give you another chance: You’re hanging your hat on the fact that you clarified the statement two days later. You’re now telling us that is was a spokesperson who did it. What did that spokesperson say? Tell me now, how do you clarify this?

GONZALES: I don’t know, but I’ll find out and get back to you.


Secretary of State Trey Grayson Calls for Rotating Presidential Primary System

Tuesday, July 24th, 2007

LEXINGTON – A proposal to revamp the presidential primary system could increase Kentucky’s clout, Secretary of State Trey Grayson told a legislative panel today. 

“The current system doesn’t work,” Grayson told members of the Task Force on Elections, Constitutional Amendments, and Intergovernmental Affairs. “We’ve got to do something.” 

Many states have moved their primary dates forward for the 2008 election cycle, Grayson said, with more than half the states selecting their delegates by February 5. As recently as 2000, the first-in-the-nation New Hampshire Primary wasn’t held until February 1. Under the current plan, only two states will hold their elections after Kentucky’s May 20 primary. 

Rep. J.R. Gray, D-Benton, questioned the cost of having the presidential primary separate from other primary elections, as some states do. The cost, Grayson said, would be about the same as a run-off election’s costs — about $5 million. “I’m proud to see the General Assembly is not doing that,” he said. “I think it’s a wise use of taxpayer dollars.” 

Under the plan suggested by the National Association of Secretaries of State, the nation would be divided into four regions — East, South, Midwest, and West — with states in each region holding their presidential primaries during the same month. Every four years, the regions would rotate the positions, meaning states that held primaries in March 2012 would host their 2016 primaries in June, and other regions moving forward one month. The New Hampshire Primary and the Iowa Caucuses would retain their normal places at the beginning of the campaign cycle, Grayson said, because it would be almost impossible to persuade those state’s leaders to forfeit their status. 

Two options exist, Grayson said. Each state within a region could hold its primary the same day, or they could select any day within the designated month to hold their election. “I support the variation that allows states to choose your own date within that month,” Grayson said. “At a bare minimum, our voters would have a say. Right now, they don’t have a say.” 

Sen. Julian Carroll, D-Frankfort, and Fayette County Clerk Don Blevins noted the state’s participation in the 1988 Super Tuesday elections, when Kentucky spent the extra money to hold a separate presidential primary, but got little attention with larger states such as Florida and Texas also holding primaries that day. Such a plan would repeat itself if all southern states held their primaries on the same day, they said. If Kentucky’s primary day were by itself or shared with other small states, Carroll said, it might have more impact on the selection process. 

Grayson suggested lawmakers passed a non-binding resolution to endorse the rotating primary plan. While the law is not completely settled on whether Congress can mandate the party nomination system, states’ recommendations could weigh heavily on the final outcome, he said. 

Louisville District Court Judge Rules Ky. Sex Offender Law Unconstitutional

Tuesday, July 24th, 2007

LawReader Note:  A District Judges ruling affect only the case on which he is ruling.  Other courts are not required to follow that decision as precedent.  However, such a ruling may provide guidance for other courts.  This ruling will likely be appealed by the Commonwealth to the Jefferson Circuit Court, and thereafter either party could seek a discretionary review in the Court of Appeals.

By Jason Riley   The Courier-Journal               July 24, 2007

 A Jefferson District Court judge today ruled the state’s new sex offender law is unconstitutional and should not apply to criminals convicted before the restrictions took effect in July 2006.

Judge Donald Armstrong Jr. dismissed the cases of three Louisville men charged under a law that prevents them from living within 1,000 feet of a playground, school or day care.

In the case of Stanley S. Bottom, who was charged with a misdemeanor violation of the sex offender residency restriction law, Armstrong ruled the law was, in effect, a second punishment, which is unconstitutional, instead of a monitoring action.

Michael Goodwin, an attorney for Bottom, said Armstrong “has recognized that when an individual is punished by a judge and jury, the legislators can’t, many years later, adopt a second punishment for the same person.� said

Similar rulings have been handed down in Kenton and Madison counties, but neither the state Appeals Court or Supreme Court has decided the issue yet. The case in Kenton has been appealed to the Supreme Court.

Armstrong said in his decision today that a higher court will ultimately decide the issue.

While Armstrong’s decision is not binding for other judges, “the logic could be applied by judges statewide,� Goodwin said.

The Jefferson County Attorney’s Office is reviewing the decision and may appeal, said Julie Hardesty, first assistant with the office.

“We’re concerned,� she said. “It’s a public safety concern.�

Under the law, which took effect a year ago, sex offenders are barred from living within 1,000 feet of a school, licensed day-care center and public parks with pools or playgrounds.

Jefferson County has about 760 registered sex offenders. And the county has 12 public pools, as well as playgrounds in all 122 parks.

The new law covers all registered offenders — about 5,800 in Kentucky. The old law applied only to about 1,200 registered sex offenders who are on probation or parole.

The law required them to move by Nov. 11 and provided no exemption, regardless of age or illness. Initial violations are misdemeanors punishable by up to 12 months in jail; subsequent violations are felonies for which the maximum sentence is five years in prison.

Jeff Middendorf, general counsel for the Justice and Public Safety Cabinet, said the ruling today wouldn’t affect enforcement of the law. Police agencies will be asked to continue notifying sex offenders when they live within 1,000 feet of a school, playground or day care facility.

“We have an obligation to enforce the law and until a higher court says otherwise we will fulfill that obligation,� he said.

Read full coverage in tomorrow’s Courier-Journal.

Fen-Phen lawyers seek stay in civil lawsuit until federal case settled

Tuesday, July 24th, 2007

Beth Musgrave   Lexington Herald-Leader   July 24, 2007 

Three suspended lawyers accused of bilking millions from their former clients want a judge to stay a civil lawsuit until a federal criminal case against the lawyers is completed in October. 

Special Judge William Wehr, in a hearing Tuesday, said he was leaning toward delaying a September civil trial over what happened with a $200-million settlement over the diet drug fen-phen until after the criminal case is tried Oct. 15. 

Wehr said he should soon have a final, written order on whether the civil trial will be delayed. 

William Gallion, Shirley Cunningham Jr. and Melbourne Mills Jr., formerly based in Lexington, are being sued by more than 400 former fen-phen clients who say their former lawyers took millions more of a $200-million settlement than they should have received. In March 2006, Wehr ruled that they had breached their fiduciary duty to their clients when more of the settlement money — about $106 million — went to the lawyers and consultants than to the clients, despite contracts that said the lawyers should receive much less. 

Gallion, Cunningham and Mills were indicted June 14 by a federal grand jury on one count each of conspiracy to commit mail fraud, charging that they conspired to take $65 million of the settlement that should have gone to their clients. If convicted, they could receive a maximum of 20 years in prison. Lawyers for Gallion, Cunningham and Mills have vowed to fight the criminal charges and say that the defendants have not had the opportunity to tell their side of the story. Gallion, Cunningham and Mills were temporarily suspended from the practice of law by the Kentucky Bar Association. 

How much the fen-phen clients should receive from their former lawyers has still not been decided. But Wehr said during Tuesday’s hearing that he hopes by the end of this week to enter an order that may set a dollar amount for damages he thinks the plaintiffs are entitled to. Other monetary awards — including punitive damages — would be decided by a jury. 

In court documents and during Tuesday’s hearing, lawyers for Gallion, Mills and Cunningham argued that proceeding with the civil action while the criminal case was pending would force their clients to choose between their right to testify on their own behalf and their right not to incriminate themselves. 

Angela Ford, a Lexington lawyer who represents the former fen-phen plaintiffs, argued that the three lawyers gave up their Fifth Amendment right not to incriminate themselves when they voluntarily submitted to depositions in the civil lawsuit and gave key documents in the case to the plaintiffs. The former fen-phen clients also worry they may never get their money back if a trial to decide damages is further delayed, Ford said. 

But Wehr said he thought that if forced to testify in the civil suit, the three would be placed in a difficult position. Wehr said he did not think that case would have to be delayed too long after the criminal case is completed. 

Cincinnati lawyer Stanley Chesley has also been named in the lawsuit, but Wehr has not ruled on whether Chesley also breached his fiduciary duty to the clients. Chesley’s lawyers have argued that Chesley had no contracts with individual clients. Wehr said Tuesday he will likely separate Chesley’s trial from the three Lexington lawyers. Chesley’s lawyers have also asked that their client’s case be stayed because of the criminal charges facing the other lawyers. 

But lawyers for all the defendants agreed to attempt another round of settlement negotiations, possibly in early August. Two previous efforts to settle the civil case were not successful. 

Judge Wehr Leans Toward delaying Fen-Phen Civil Case

Tuesday, July 24th, 2007

By Beth Musgrave    July 24, 2007

Three suspended lawyers accused of bilking millions from their former clients want a judge to stay a civil lawsuit until a federal criminal case against the lawyers is completed in October.
Special Judge William Wehr, in a hearing Tuesday, said he was leaning toward delaying a September civil trial over what happened to a $200 million settlement over the diet drug fen-phen until after the criminal case is tried Oct. 15.
Wehr said he should have a final decision available soon.
William Gallion, Shirley Cunningham Jr. and Melbourne Mills Jr. , formerly based in Lexington, are being sued by more than 400 former fen-phen clients who say that their former lawyers took millions more of a $200 million settlement than they should have received. In March 2006, Wehr ruled that three had breached their fiduciary duty to their clients when more of the settlement money — about $106 million — went to the lawyers and consultants on the case than to the clients, despite contracts with clients that said the lawyers should receive much less.
Gallion, Cunningham and Mills were indicted June 14 by a federal grand jury on one count each of conspiracy to commit mail fraud, saying that three conspired to take $65 million of the settlement that should have gone to their clients. If convicted, the three could receive a maximum of 20 years in prison. Lawyers for Gallion, Cunningham and Mills have vowed to fight the criminal charges and say their clients have not had the opportunity to tell their side of the story. Gallion, Cunningham and Mills were temporarily suspended from the practice of law by the Kentucky Bar Association.
How much the former clients should receive from their former lawyers has still not been decided. But Wehr said during Tuesday’s hearing that he hopes by the end of this week to enter an order that may set a base-line dollar amount for damages related to the ruling that the lawyers’ breached their fiduciary duty. But other monetary damages would be decided by a jury.

Founding Fathers Feared An Imperial President . War Powers were Limited.

Tuesday, July 24th, 2007

By ADAM COHEN   New York Times Editorial July 23, 2007
The nation is heading toward a constitutional showdown over the Iraq war. Congress is moving closer to passing a bill to limit or end the war, but President Bush insists Congress doesn’t have the power to do it. “I don’t think Congress ought to be running the war,� he said at a recent press conference. “I think they ought to be funding the troops.� He added magnanimously: “I’m certainly interested in their opinion.�
The war is hardly the only area where the Bush administration is trying to expand its powers beyond all legal justification. But the danger of an imperial presidency is particularly great when a president takes the nation to war, something the founders understood well. In the looming showdown, the founders and the Constitution are firmly on Congress’s side.
Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called “the foetus of monarchy.�
The founders were particularly wary of giving the president power over war. They were haunted by Europe’s history of conflicts started by self-aggrandizing kings. John Jay, the first chief justice of the United States, noted in Federalist No. 4 that “absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal.�
Many critics of the Iraq war are reluctant to suggest that President Bush went into it in anything but good faith. But James Madison, widely known as the father of the Constitution, might have been more skeptical. “In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed,� he warned. “It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle.�
When they drafted the Constitution, Madison and his colleagues wrote their skepticism into the text. In Britain, the king had the authority to declare war, and raise and support armies, among other war powers. The framers expressly rejected this model and gave these powers not to the president, but to Congress.
The Constitution does make the president “commander in chief,� a title President Bush often invokes. But it does not have the sweeping meaning he suggests. The framers took it from the British military, which used it to denote the highest-ranking official in a theater of battle. Alexander Hamilton emphasized in Federalist No. 69 that the president would be “nothing more� than “first general and admiral,� responsible for “command and direction� of military forces.
The founders would have been astonished by President Bush’s assertion that Congress should simply write him blank checks for war. They gave Congress the power of the purse so it would have leverage to force the president to execute their laws properly. Madison described Congress’s control over spending as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.�
The framers expected Congress to keep the president on an especially short leash on military matters. The Constitution authorizes Congress to appropriate money for an army, but prohibits appropriations for longer than two years. Hamilton explained that the limitation prevented Congress from vesting “in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.�
As opinion turns more decisively against the war, the administration is becoming ever more dismissive of Congress’s role. Last week, Under Secretary of Defense Eric Edelman brusquely turned away Senator Hillary Clinton’s questions about how the Pentagon intended to plan for withdrawal from Iraq. “Premature and public discussion of the withdrawal of U.S. forces from Iraq reinforces enemy propaganda that the United States will abandon its allies in Iraq,â€? he wrote. Mr. Edelman’s response showed contempt not merely for Congress, but for the system of government the founders carefully created.
The Constitution cannot enforce itself. It is, as the constitutional scholar Edwin Corwin famously observed, an “invitation to struggle� among the branches, but the founders wisely bequeathed to Congress some powerful tools for engaging in the struggle. It is no surprise that the current debate over a deeply unpopular war is arising in the context of a Congressional spending bill. That is precisely what the founders intended.
Members of Congress should not be intimidated into thinking that they are overstepping their constitutional bounds. If the founders were looking on now, it is not Harry Reid and Nancy Pelosi who would strike them as out of line, but George W. Bush, who would seem less like a president than a king.

Chairman of the Jewish Hospital Infection Control Committee agrees to pay $984,705 to settle Federal Civil Fraud Claims brought by U.S. Attorney David Huber.

Monday, July 23rd, 2007

Dr. Julio Melo is the Chairman of the Jewish Hospital Infection Control Committee. His committee reviewed hospital efforts to prevent the spread of infections in the hospital.

 Glen Bray, a former maintenance supervisor at Jewish Hospital who was in charge of the cleaning crew who cleaned patient rooms provided a statement in the original lawsuit claiming that he was not permitted enough time to clean the rooms before new patients were placed in the infected rooms.

Jewish Hospital was sued by two Louisville Attorneys who brought claims of 96 former patients (and turned down 275 other claims) who claimed they picked up infections while patients at Jewish Hospital.

The Hospital responded by personally suing Joseph L. White and Michael in a strike back lawsuit, claiming that they had not secured the opinion of a medical expert prior to filing their lawsuits. Dr. Melo is a logical witness that may be called by either party in the pending strike back lawsuit to discuss the hospitals efforts in controlling the spread of hospital infections.


The following press release was distributed by the U.S. Attorney’s Office.


David L. Huber, United States Attorney for the Western District of Kentucky, along with

the Office of the Inspector General for the Department of Health and Human Services (“OIGHHS�) announced today that Julio C. Melo, M.D., of Louisville, Kentucky, has agreed to pay $984,705.71 to settle allegations that between January 1, 2000, and August 20, 2006, Dr. Melo submitted false claims to Medicare, Medicaid and other federally-funded health care programs (collectively “federally-funded health care programs�).


According to the settlement agreement, the United States maintains that Dr. Melo

improperly submitted claims for payment to federally-funded health care programs for

Evaluation and Management (“E&M�) services which, based on the American Medical

Association’s Current Procedural Terminology coding system’s (“CPT�) recommended times, resulted in numerous days in which the CPT’s E&M time guidelines exceeded 24 hours in duration.


The United States also maintained that Dr. Melo improperly submitted bills for an

“initial inpatient consultation� on existing patients who were merely transferred between



Dr. Melo, who has been practicing for over 30 years, denies any wrongdoing.

Dr. Melo has also agreed to enter into a five year Integrity Agreement with the OIG




New $18 Million Dollar Court Facility for Shelby County Advances

Monday, July 23rd, 2007

The Court Facilities Standards Committee will review the judicial center project being planned for Shelby County. The meeting is open to the public and will be held Friday, July 27, 2007, 1 p.m. EDT, at the Administrative Office of the Courts located at 100 Millcreek Park in Frankfort.
The Court Facilities Standards Committee is a 10-member body comprised of representatives from the Kentucky Executive, Judicial and Legislative branches of government and a county official appointed by the governor. The committee reviews design plans, cost estimates and financing proposals for new court facilities statewide. Kentucky state Rep. Kathy W. Stein chairs the10-member committee. Chief Justice of Kentucky Joseph E. Lambert, AOC Director Jason Nemes and Kentucky Court of Appeals Chief Judge Sara Combs will also be in attendance.
The Court Facilities Standards Committee operates under the auspices of the Administrative Office of the Courts (AOC) in Frankfort, which is the operational arm of the Kentucky Court of Justice. The AOC Court Facilities Department oversees court facility construction, renovation and maintenance throughout the Commonwealth.
The committee will be discussing the new judicial center project for Shelby County, which is one of the 18 judicial center projects approved by the 2005 General Assembly and funded by the 2006 General Assembly:
Shelby County new judicial center, 58,000 square feet, $18,441,000 authorized cost
Friday, July 27, 2007, 1 p.m. EDT

Administrative Office of the Courts Conference Room, 100 Millcreeek Park, Frankfort