Archive for July, 2007

Federal Judge John Heyburn II of Louisville Receives Important Judicial Appointment by Chief Justice

Monday, July 23rd, 2007

Federal Judge John Heyburn II of Louisville, has been appointed by U.S. Supreme Court Justice John Roberts to a panel of seven judges that decides what to do when thousands of cases are filed around the country against the same defendant.

Known as the MDI panel, the Judicial Panel on Multi-District Litigation has considered more than 1,600 dockets involving more than 200,000 lawsuits including hotel fires, airline crashes, asbestos litigation and securities fraud.

The panel decides which cases are consolidated and to what Judge they are sent. Its decisions can make or break billion dollar cases for corporate defendants and plaintiffs. Based on what happens to them after they are transferred.

The panel can send cases anywhere. It can send them to Fardo.  Some think of it as a secret society of seven judges.

Heyburn will supervise a staff of 27 and will serve a seven year term.

Former Administration Official says he warned Fletcher Running Mate Robbie Rudolph that Blog Blocking Action was Illegal.

Monday, July 23rd, 2007

Some months ago, Mark Nickolas, then host of, a blog that was highly critical of the Fletcher Administration, filed a federal lawsuit claiming that the State Government  had targeted his free speech rights by instituting a block on certain selected blogs.
Nickolas has moved to Montana, where he is continuing a blog related to political issues in the Rocky Mountain states.
This week it was revealed that a sworn affidavit has been filed by a former Fletcher administration official that he believes that Gov. Fletcher’s running mate, Robbie Rudolph ordered a state crackdown on access to Internet blogs in an effort to silence a Democratic site critical of the Governor.
Former Commissioner of Technology Michael Inman issued the affidavit in the pending federal lawsuit pending in Frankfort.
In the affidavit Inman said Rudolph, Fletcher’s cabinet secretary, sometimes complained during staff meetings about, and would express frustration when talking about the site.
He recalled Rudolph saying, “Well, we finally blocked when the blocking action against web sites was instituted.
When Inham asked Rudolph if that was legal, he said Rudolph replied, “They wouldn’t ever know we did it. We hid it in a bunch of other stuff.?  When Inman objected to the blog blocking action, he was told by John Farris, then secretary of the Finance and Administration cabinet, “not to get involved because it came from ‘high up’?.
Nickolas, called the affidavit, “ a devastating document. It shows beyond a doubt the governor’s office targeted me.?
This lawsuit could spell out important guidelines regarding the state’s right to censor political speech.






Monday, July 23rd, 2007

This article will be of interest to those working with juveniles.

 By Po Bronson   New York Times 

What do we make of a boy like Thomas?

 Thomas (his middle name) is a fifth-grader at the highly competitive P.S. 334, the Anderson School on West 84th. Slim as they get, Thomas recently had his long sandy-blond hair cut short to look like the new James Bond (he took a photo of Daniel Craig to the barber). Unlike Bond, he prefers a uniform of cargo pants and a T-shirt emblazoned with a photo of one of his heroes: Frank Zappa. Thomas hangs out with five friends from the Anderson School. They are “the smart kids.? Thomas’s one of them, and he likes belonging.

 Since Thomas could walk, he has heard constantly that he’s smart. Not just from his parents but from any adult who has come in contact with this precocious child. When he applied to Anderson for kindergarten, his intelligence was statistically confirmed. The school is reserved for the top one percent of all applicants, and an IQ test is required. Thomas didn’t just score in the top one percent. He scored in the top one percent of the top one percent.

 But as Thomas has progressed through school, this self-awareness that he’s smart hasn’t always translated into fearless confidence when attacking his schoolwork. In fact, Thomas’s father noticed just the opposite. “Thomas didn’t want to try things he wouldn’t be successful at,? his father says. “Some things came very quickly to him, but when they didn’t, he gave up almost immediately, concluding, ‘I’m not good at this.’? With no more than a glance, Thomas was dividing the world into two—things he was naturally good at and things he wasn’t.

 For instance, in the early grades, Thomas wasn’t very good at spelling, so he simply demurred from spelling out loud. When Thomas took his first look at fractions, he balked. The biggest hurdle came in third grade. He was supposed to learn cursive penmanship, but he wouldn’t even try for weeks. By then, his teacher was demanding homework be completed in cursive. Rather than play catch-up on his penmanship, Thomas refused outright. Thomas’s father tried to reason with him. “Look, just because you’re smart doesn’t mean you don’t have to put out some effort.? (Eventually, he mastered cursive, but not without a lot of cajoling from his father.)

 Why does this child, who is measurably at the very top of the charts, lack confidence about his ability to tackle routine school challenges?

 Thomas is not alone. For a few decades, it’s been noted that a large percentage of all gifted students (those who score in the top 10 percent on aptitude tests) severely underestimate their own abilities. Those afflicted with this lack of perceived competence adopt lower standards for success and expect less of themselves. They underrate the importance of effort, and they overrate how much help they need from a parent.

 When parents praise their children’s intelligence, they believe they are providing the solution to this problem. According to a survey conducted by Columbia University, 85 percent of American parents think it’s important to tell their kids that they’re smart. In and around the New York area, according to my own (admittedly nonscientific) poll, the number is more like 100 percent. Everyone does it, habitually. The constant praise is meant to be an angel on the shoulder, ensuring that children do not sell their talents short.

 But a growing body of research—and a new study from the trenches of the New York public-school system—strongly suggests it might be the other way around. Giving kids the label of “smart? does not prevent them from underperforming. It might actually be causing it.

 For the past ten years, psychologist Carol Dweck and her team at Columbia (she’s now at Stanford) studied the effect of praise on students in a dozen New York schools. Her seminal work—a series of experiments on 400 fifth-graders—paints the picture most clearly.

 Dweck sent four female research assistants into New York fifth-grade classrooms. The researchers would take a single child out of the classroom for a nonverbal IQ test consisting of a series of puzzles—puzzles easy enough that all the children would do fairly well. Once the child finished the test, the researchers told each student his score, then gave him a single line of praise. Randomly divided into groups, some were praised for their intelligence. They were told, “You must be smart at this.? Other students were praised for their effort: “You must have worked really hard.?

 Why just a single line of praise? “We wanted to see how sensitive children were,? Dweck explained. “We had a hunch that one line might be enough to see an effect.?
Then the students were given a choice of test for the second round. One choice was a test that would be more difficult than the first, but the researchers told the kids that they’d learn a lot from attempting the puzzles. The other choice, Dweck’s team explained, was an easy test, just like the first. Of those praised for their effort, 90 percent chose the harder set of puzzles. Of those praised for their intelligence, a majority chose the easy test. The “smart? kids took the cop-out.

 Why did this happen? “When we praise children for their intelligence,? Dweck wrote in her study summary, “we tell them that this is the name of the game: Look smart, don’t risk making mistakes.? And that’s what the fifth-graders had done: They’d chosen to look smart and avoid the risk of being embarrassed.

 In a subsequent round, none of the fifth-graders had a choice. The test was difficult, designed for kids two years ahead of their grade level. Predictably, everyone failed. But again, the two groups of children, divided at random at the study’s start, responded differently. Those praised for their effort on the first test assumed they simply hadn’t focused hard enough on this test. “They got very involved, willing to try every solution to the puzzles,? Dweck recalled. “Many of them remarked, unprovoked, ‘This is my favorite test.’? Not so for those praised for their smarts. They assumed their failure was evidence that they weren’t really smart at all. “Just watching them, you could see the strain. They were sweating and miserable.?
Having artificially induced a round of failure, Dweck’s researchers then gave all the fifth-graders a final round of tests that were engineered to be as easy as the first round. Those who had been praised for their effort significantly improved on their first score—by about 30 percent. Those who’d been told they were smart did worse than they had at the very beginning—by about 20 percent.

 Dweck had suspected that praise could backfire, but even she was surprised by the magnitude of the effect. “Emphasizing effort gives a child a variable that they can control,? she explains. “They come to see themselves as in control of their success. Emphasizing natural intelligence takes it out of the child’s control, and it provides no good recipe for responding to a failure.?

 In follow-up interviews, Dweck discovered that those who think that innate intelligence is the key to success begin to discount the importance of effort. I am smart, the kids’ reasoning goes; I don’t need to put out effort. Expending effort becomes stigmatized—it’s public proof that you can’t cut it on your natural gifts.
Repeating her experiments, Dweck found this effect of praise on performance held true for students of every socioeconomic class. It hit both boys and girls—the very brightest girls especially (they collapsed the most following failure). Even preschoolers weren’t immune to the inverse power of praise.

 Jill Abraham is a mother of three in Scarsdale, and her view is typical of those in my straw poll. I told her about Dweck’s research on praise, and she flatly wasn’t interested in brief tests without long-term follow-up. Abraham is one of the 85 percent who think praising her children’s intelligence is important. Her kids are thriving, so she’s proved that praise works in the real world. “I don’t care what the experts say,? Jill says defiantly. “I’m living it.?

 Even those who’ve accepted the new research on praise have trouble putting it into practice. Sue Needleman is both a mother of two and an elementary-school teacher with eleven years’ experience. Last year, she was a fourth-grade teacher at Ridge Ranch Elementary in Paramus, New Jersey. She has never heard of Carol Dweck, but the gist of Dweck’s research has trickled down to her school, and Needleman has learned to say, “I like how you keep trying.? She tries to keep her praise specific, rather than general, so that a child knows exactly what she did to earn the praise (and thus can get more). She will occasionally tell a child, “You’re good at math,? but she’ll never tell a child he’s bad at math.

 But that’s at school, as a teacher. At home, old habits die hard. Her 8-year-old daughter and her 5-year-old son are indeed smart, and sometimes she hears herself saying, “You’re great. You did it. You’re smart.? When I press her on this, Needleman says that what comes out of academia often feels artificial. “When I read the mock dialogues, my first thought is, Oh, please. How corny.?

 No such qualms exist for teachers at the Life Sciences Secondary School in East Harlem, because they’ve seen Dweck’s theories applied to their junior-high students. Last week, Dweck and her protégée, Lisa Blackwell, published a report in the academic journal Child Development about the effect of a semester-long intervention conducted to improve students’ math scores.

 Life Sciences is a health-science magnet school with high aspirations but 700 students whose main attributes are being predominantly minority and low achieving. Blackwell split her kids into two groups for an eight-session workshop. The control group was taught study skills, and the others got study skills and a special module on how intelligence is not innate. These students took turns reading aloud an essay on how the brain grows new neurons when challenged. They saw slides of the brain and acted out skits. “Even as I was teaching these ideas,? Blackwell noted, “I would hear the students joking, calling one another ‘dummy’ or ‘stupid.’? After the module was concluded, Blackwell tracked her students’ grades to see if it had any effect.

 It didn’t take long. The teachers—who hadn’t known which students had been assigned to which workshop—could pick out the students who had been taught that intelligence can be developed. They improved their study habits and grades. In a single semester, Blackwell reversed the students’ longtime trend of decreasing math grades.

 The only difference between the control group and the test group were two lessons, a total of 50 minutes spent teaching not math but a single idea: that the brain is a muscle. Giving it a harder workout makes you smarter. That alone improved their math scores.

 “These are very persuasive findings,? says Columbia’s Dr. Geraldine Downey, a specialist in children’s sensitivity to rejection. “They show how you can take a specific theory and develop a curriculum that works.? Downey’s comment is typical of what other scholars in the field are saying. Dr. Mahzarin Banaji, a Harvard social psychologist who is an expert in stereotyping, told me, “Carol Dweck is a flat-out genius. I hope the work is taken seriously. It scares people when they see these results.?

 Since the 1969 publication of The Psychology of Self-Esteem, in which Nathaniel Branden opined that self-esteem was the single most important facet of a person, the belief that one must do whatever he can to achieve positive self-esteem has become a movement with broad societal effects. Anything potentially damaging to kids’ self-esteem was axed. Competitions were frowned upon. Soccer coaches stopped counting goals and handed out trophies to everyone. Teachers threw out their red pencils. Criticism was replaced with ubiquitous, even undeserved, praise.
Dweck and Blackwell’s work is part of a larger academic challenge to one of the self-esteem movement’s key tenets: that praise, self-esteem, and performance rise and fall together. From 1970 to 2000, there were over 15,000 scholarly articles written on self-esteem and its relationship to everything—from sex to career advancement. But results were often contradictory or inconclusive. So in 2003 the Association for Psychological Science asked Dr. Roy Baumeister, then a leading proponent of self-esteem, to review this literature. His team concluded that self-esteem was polluted with flawed science. Only 200 of those 15,000 studies met their rigorous standards.


I am smart, the kids’ reasoning goes; I don’t need to put out effort. Expending effort becomes stigmatized—it’s public proof that you can’t cut it on your natural gifts.

 After reviewing those 200 studies, Baumeister concluded that having high self-esteem didn’t improve grades or career achievement. It didn’t even reduce alcohol usage. And it especially did not lower violence of any sort. (Highly aggressive, violent people happen to think very highly of themselves, debunking the theory that people are aggressive to make up for low self-esteem.) At the time, Baumeister was quoted as saying that his findings were “the biggest disappointment of my career.?
Now he’s on Dweck’s side of the argument, and his work is going in a similar direction: He will soon publish an article showing that for college students on the verge of failing in class, esteem-building praise causes their grades to sink further. Baumeister has come to believe the continued appeal of self-esteem is largely tied to parents’ pride in their children’s achievements: It’s so strong that “when they praise their kids, it’s not that far from praising themselves.?

 By and large, the literature on praise shows that it can be effective—a positive, motivating force. In one study, University of Notre Dame researchers tested praise’s efficacy on a losing college hockey team. The experiment worked: The team got into the playoffs. But all praise is not equal—and, as Dweck demonstrated, the effects of praise can vary significantly depending on the praise given. To be effective, researchers have found, praise needs to be specific. (The hockey players were specifically complimented on the number of times they checked an opponent.)

 Sincerity of praise is also crucial. Just as we can sniff out the true meaning of a backhanded compliment or a disingenuous apology, children, too, scrutinize praise for hidden agendas. Only young children—under the age of 7—take praise at face value: Older children are just as suspicious of it as adults.

 Psychologist Wulf-Uwe Meyer, a pioneer in the field, conducted a series of studies where children watched other students receive praise. According to Meyer’s findings, by the age of 12, children believe that earning praise from a teacher is not a sign you did well—it’s actually a sign you lack ability and the teacher thinks you need extra encouragement. And teens, Meyer found, discounted praise to such an extent that they believed it’s a teacher’s criticism—not praise at all—that really conveys a positive belief in a student’s aptitude.

 In the opinion of cognitive scientist Daniel T. Willingham, a teacher who praises a child may be unwittingly sending the message that the student reached the limit of his innate ability, while a teacher who criticizes a pupil conveys the message that he can improve his performance even further.

 New York University professor of psychiatry Judith Brook explains that the issue for parents is one of credibility. “Praise is important, but not vacuous praise,? she says. “It has to be based on a real thing—some skill or talent they have.? Once children hear praise they interpret as meritless, they discount not just the insincere praise, but sincere praise as well.

 Scholars from Reed College and Stanford reviewed over 150 praise studies. Their meta-analysis determined that praised students become risk-averse and lack perceived autonomy. The scholars found consistent correlations between a liberal use of praise and students’ “shorter task persistence, more eye-checking with the teacher, and inflected speech such that answers have the intonation of questions.?
Dweck’s research on overpraised kids strongly suggests that image maintenance becomes their primary concern—they are more competitive and more interested in tearing others down. A raft of very alarming studies illustrate this.

 In one, students are given two puzzle tests. Between the first and the second, they are offered a choice between learning a new puzzle strategy for the second test or finding out how they did compared with other students on the first test: They have only enough time to do one or the other. Students praised for intelligence choose to find out their class rank, rather than use the time to prepare.

 In another, students get a do-it-yourself report card and are told these forms will be mailed to students at another school—they’ll never meet these students and don’t know their names. Of the kids praised for their intelligence, 40 percent lie, inflating their scores. Of the kids praised for effort, few lie.

 When students transition into junior high, some who’d done well in elementary school inevitably struggle in the larger and more demanding environment. Those who equated their earlier success with their innate ability surmise they’ve been dumb all along. Their grades never recover because the likely key to their recovery—increasing effort—they view as just further proof of their failure. In interviews many confess they would “seriously consider cheating.?

 Students turn to cheating because they haven’t developed a strategy for handling failure. The problem is compounded when a parent ignores a child’s failures and insists he’ll do better next time. Michigan scholar Jennifer Crocker studies this exact scenario and explains that the child may come to believe failure is something so terrible, the family can’t acknowledge its existence. A child deprived of the opportunity to discuss mistakes can’t learn from them.

 My son, Luke, is in kindergarten. He seems supersensitive to the potential judgment of his peers. Luke justifies it by saying, “I’m shy,? but he’s not really shy. He has no fear of strange cities or talking to strangers, and at his school, he has sung in front of large audiences. Rather, I’d say he’s proud and self-conscious. His school has simple uniforms (navy T-shirt, navy pants), and he loves that his choice of clothes can’t be ridiculed, “because then they’d be teasing themselves too.?

 After reading Carol Dweck’s research, I began to alter how I praised him, but not completely. I suppose my hesitation was that the mind-set Dweck wants students to have—a firm belief that the way to bounce back from failure is to work harder—sounds awfully clichéd: Try, try again.

 But it turns out that the ability to repeatedly respond to failure by exerting more effort—instead of simply giving up—is a trait well studied in psychology. People with this trait, persistence, rebound well and can sustain their motivation through long periods of delayed gratification. Delving into this research, I learned that persistence turns out to be more than a conscious act of will; it’s also an unconscious response, governed by a circuit in the brain. Dr. Robert Cloninger at Washington University in St. Louis located the circuit in a part of the brain called the orbital and medial prefrontal cortex. It monitors the reward center of the brain, and like a switch, it intervenes when there’s a lack of immediate reward. When it switches on, it’s telling the rest of the brain, “Don’t stop trying. There’s dopa [the brain’s chemical reward for success] on the horizon.? While putting people through MRI scans, Cloninger could see this switch lighting up regularly in some. In others, barely at all.

 What makes some people wired to have an active circuit?

 Cloninger has trained rats and mice in mazes to have persistence by carefully not rewarding them when they get to the finish. “The key is intermittent reinforcement,? says Cloninger. The brain has to learn that frustrating spells can be worked through. “A person who grows up getting too frequent rewards will not have persistence, because they’ll quit when the rewards disappear.?

 That sold me. I’d thought “praise junkie? was just an expression—but suddenly, it seemed as if I could be setting up my son’s brain for an actual chemical need for constant reward.

 What would it mean, to give up praising our children so often? Well, if I am one example, there are stages of withdrawal, each of them subtle. In the first stage, I fell off the wagon around other parents when they were busy praising their kids. I didn’t want Luke to feel left out. I felt like a former alcoholic who continues to drink socially. I became a Social Praiser.

 Then I tried to use the specific-type praise that Dweck recommends. I praised Luke, but I attempted to praise his “process.? This was easier said than done. What are the processes that go on in a 5-year-old’s mind? In my impression, 80 percent of his brain processes lengthy scenarios for his action figures.

But every night he has math homework and is supposed to read a phonics book aloud. Each takes about five minutes if he concentrates, but he’s easily distracted. So I praised him for concentrating without asking to take a break. If he listened to instructions carefully, I praised him for that. After soccer games, I praised him for looking to pass, rather than just saying, “You played great.? And if he worked hard to get to the ball, I praised the effort he applied.

 Just as the research promised, this focused praise helped him see strategies he could apply the next day. It was remarkable how noticeably effective this new form of praise was.

 Truth be told, while my son was getting along fine under the new praise regime, it was I who was suffering. It turns out that I was the real praise junkie in the family. Praising him for just a particular skill or task felt like I left other parts of him ignored and unappreciated. I recognized that praising him with the universal “You’re great—I’m proud of you? was a way I expressed unconditional love.

 Offering praise has become a sort of panacea for the anxieties of modern parenting. Out of our children’s lives from breakfast to dinner, we turn it up a notch when we get home. In those few hours together, we want them to hear the things we can’t say during the day—We are in your corner, we are here for you, we believe in you.
In a similar way, we put our children in high-pressure environments, seeking out the best schools we can find, then we use the constant praise to soften the intensity of those environments. We expect so much of them, but we hide our expectations behind constant glowing praise. The duplicity became glaring to me.

 Eventually, in my final stage of praise withdrawal, I realized that not telling my son he was smart meant I was leaving it up to him to make his own conclusion about his intelligence. Jumping in with praise is like jumping in too soon with the answer to a homework problem—it robs him of the chance to make the deduction himself.
But what if he makes the wrong conclusion?

 Can I really leave this up to him, at his age?

 I’m still an anxious parent. This morning, I tested him on the way to school: “What happens to your brain, again, when it gets to think about something hard??
“It gets bigger, like a muscle,? he responded, having aced this one before.

Judge Judith McDonald Burkman orders Corrections Chief Rees to pay fine for disobeying court order

Thursday, July 19th, 2007

July 19, 2007 

Kentucky Corrections Commissioner John D. Rees was fined $500 for contempt of court yesterday by Jefferson Circuit Judge Judith McDonald Burkman. Rees had disobeyed a court order to release from prison an inmate to whom the judge had granted shock probation.

 Rees has stated that this was not the first time he had disobeyed a court order.  He disagreed with a ruling of the court to the effect that juveniles who were violent offenders could be granted shock probation.  The Court of Appeals has ruled that in fact juveniles were entitled to consideration for shock probation.  Rees was quoted as saying, “Judges make mistakes.? And “the parole board is better suited to make these decisions than the courts.?

The procedure for handling a situation where you disagree with a court order is not to ignore it but to appeal it.  Apparently his general counsel finally was able to get this point across to his boss.
Jeff Middendorf, general counsel for the cabinet, said Rees would no longer defy court orders that he believes are incorrect and instead will allow the cabinet’s attorneys to fight decisions through the legal system.
“In the future, we’ll respectfully disagree and follow the court’s order,” Middendorf said
In her ruling yesterday, McDonald-Burkman said that Rees “never took any steps to obey” an order from the court last month to release inmate Daniel Ottman. She found Rees in contempt for his “willful, intentional refusal” to obey the court, according to her ruling.
The $500 fine must be paid by Aug. 1. It was not immediately clear whether Rees or the cabinet would be responsible for paying the fine and fees. 
The state is considering an appeal.


Thursday, July 19th, 2007

By LawReader Senior Editor Stan Billingsley


Last night my wife and I watched a movie I hadn’t seen in 46 years.  I was stunned by the similarity of the issues confronted and discussed in this movie with the events confronting the United States and the world today.   The old adage that “History Repeats Itself? is again proven true.


The movie is Judgment at Nuremberg.  This Academy Award winning film by Stanley Kramer film features Spencer Tracey, Burt Lancaster, Judy Garland, a young William Shatner, Richard Widmark, Marlene Dietrich and Maximilian Schell.


The hero of the film is an elderly New England trial Judge who has just been defeated for re-election, and is selected to be the lead judge of a Nuremberg tribunal in which four German jurists are being tried for their actions in support of the Nazi’s.


The case is focused mostly in the courtroom, and the prosecutor and defense attorneys present compelling arguments as to the guilt or innocence of the defendants.  The trial presents the conflict between justice and the interests of the state.  The examination of how the German judges bent to the Nazi wind, and slid down the slippery slope of doing what was best for their country, will cause you to see similar calls for expediency at the expense of justice we are hearing and seeing today.   


The same arguments raised by the German defense are now raised in this country over justifications for violation of international norms of justice due to the fear of outside forces.  The judge is confronted with pressure from those who see the trial as a political tool that should be played to advance American interests, in the face of threats to our national interests and security.


The German judge played by Burt Lancaster is a highly moral man, who sincerely thought he was doing what was best for his country.  The final scene where he asks Spencer Tracey to come to his jail cell to ask for a degree of understanding is a powerful and moving moment in cinema history that we seldom see. 


Every judge, prosecutor, attorney and citizen should view this movie and consider the path that this country has taken since 9/11.


You can find this movie at Blockbuster, Hollywood or most any movie rental store.

Justice McAnulty Family sets up Web Site where you can express your get well thoughts

Wednesday, July 18th, 2007

Ky. Supreme Court Justice William McAnulty has been released from the hospital after brain surgery for removal of a tumor.   He was recently diagnosed with lung cancer, and a tumor had appeared in the base of his skull.


He is said to be doing well at home.  His family has set up a web site your friends can express their get well wishes and get updates on his condition.

 Go to


McAnulty’s wife, Kristi, posted a message yesterday saying he is “getting rest and his spirits are great.?


Everyone at LawReader certainly wishes Justice McAnulty will get well quickly and be back on the Supreme Court bench.


Tuesday, July 17th, 2007

July 17, 2007

A federal judge dismissed charges yesterday against 13 former employees of the accounting firm KPMG, citing prosecutorial abuse in interfering with the defendants right to an attorney.   The ruling delivered a blow to prosecutors who once heralded the case as a showpiece in the government’s crusade against questionable tax shelters.

Judge Lewis A. Kaplan of Federal District Court in Manhattan ruled that he had no choice but to dismiss the charges because the government had strong-armed KPMG into not paying the legal fees of defendants and had violated their rights.

Judge Kaplan wrote: The government threatened to indict, and thus to destroy, the giant accounting firm, KPMG LLP (“KPMG?). It coerced KPMG to limit and then cut off its payment of the legal fees of KPMG employees.

The Judge says, U.S. prosecutors prevented the defendants “from presenting the defenses they wished to present and, in some cases, even deprived them of counsel of their choice.?   “This is intolerable in a society that holds itself out to the world as a paragon of justice.?    “…this level of misconduct shocks the conscience?.

 “This case has real implications for the government, it could be a watershed,? said Ronald J. Nessim, a lawyer who is co-chairman of the White Collar Crime Committee of the American Bar Association. “Most federal judges don’t have the desire or the ability or the will to take on the government, and Kaplan was willing to do that.?

A spokesman for the United States attorney’s office for Manhattan said yesterday that the office had not decided whether it would appeal the ruling.

While prosecutors have had their share of successes in their battle against corporate fraud, yesterday’s ruling was the latest in which they have seen a prominent case unravel because it hinged, in part, on aggressive legal tactics.

Judge Kaplan also implied that the prosecution in the KPMG employees’ case “mistakenly expected a substantial number of guilty pleas.?

On one level, the dismissal is a narrowing of a complex proceeding, one that could actually provide much-needed traction for prosecutors, who, since two crucial legal rulings in 2006, have been searching for a way to turn the focus of the case away from their prosecutorial tactics and back on the complex issue of what constitutes an abusive tax shelter.

A successful appeal would allow prosecutors, who deny using coercive pressure, to do just that.

A prior rulng by Judge Kaplan galvanized support among criminal defense lawyers and trade groups to pressure the Justice Department to revise its prosecutorial tactics. Those procedures, enshrined in a document known as the Thompson Memorandum, after the deputy attorney general then, Larry Thompson, were softened in December. The revisions expressly forbid prosecutors from considering whether a firm was paying a current or former employee’s legal fees when weighing whether to indict the firm.

It was that pressure on KPMG, Judge Kaplan wrote in his 68-page ruling yesterday, that prevented the defendants “from presenting the defenses they wished to present and, in some cases, even deprived them of counsel of their choice.?

 The following is the table of contents of the judges 68 page ruling. To access the text go to: Text of the Judge’s Ruling
Table of Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. The Factual Bases of the Court’s Constitutional Holdings . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. The Thompson Memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. The Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. The Bar’s Understanding of the Thompson Memorandum . . . . . . . . . . . . 8
(a) Former U.S. Attorney General Edwin Meese III . . . . . . . . . . . . . . 9
(b) KPMG Lead Counsel Robert Bennett . . . . . . . . . . . . . . . . . . . . . . 9
(c) ABA President Karen J. Mathis . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(d) The American College of Trial Lawyers . . . . . . . . . . . . . . . . . . . 10
(e) The United States Chamber of Commerce: . . . . . . . . . . . . . . . . . 10
(f) Law Review Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. The Thompson Memorandum and the USAO’s Actions Caused KPMG to Limit and
Then Cut Off Payment of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. The Thompson Memorandum Influenced KPMG Even Before the February
25, 2004 Meeting Took Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. KPMG Made No Decisions Until After the February 25, 2004 Meeting
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) KPMG Made No Decisions Before the Meeting Even as to Costs of
Representing Employees During the Investigation . . . . . . . . . . . 15
(b) The Decision Not to Pay the Defense Costs of Any Employees Who
Were Indicted Came Even Later . . . . . . . . . . . . . . . . . . . . . . . . . 19
3. There Was Ample Evidence that KPMG Would Have Paid the Fees of Most
of these Defendants Absent Government Interference . . . . . . . . . . . . . . 22
4. New Evidence that KPMG Would Have Paid Absent Government
Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
III. The Due Process Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
A. The KPMG Defendants’ Pattern Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
B. The Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
C. The Actions of the USAO “Shock the Conscience? . . . . . . . . . . . . . . . . . . . . . . 36
IV. The Impact on the KPMG Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
A. Deprivation of Counsel of Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
B. The Other Practical Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
1. The Scope and Nature of this Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(a) Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(b) Motion Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(c) Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(d) Subject Matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
2. The Limitations on the Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
V. The Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
A. The Government’s CJA Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
B. Defendants Deprived of Counsel of Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
C. The KPMG Defendants as to Whom the Government Concedes Dismissal . . . . 55
D. The Defendants as to Whom the Government Resists Dismissal . . . . . . . . . . . . 60
1. Defendants Pfaff and Larson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
2. Defendant Greenberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63


Tuesday, July 17th, 2007

Court throws out sex harassment suit due to Plaintiffs public statements about defendants prior expunged criminal conviction. U.S. Supreme court holds that “Actual taint? is not required when determining whether a trial court’s limitation is needed to protect potential jurors from prejudice.

August 17th, 2006
A Michigan trial judge properly threw out a sexual harassment suit in which the alleged victim and her attorneys repeatedly spoke publicly about inadmissible evidence, the state Supreme Court ruled.
Aug. 16, 2006  ·   The First Amendment does not protect a six-year sexual harassment case from dismissal because the plaintiff and her attorneys ignored a judge’s warning not to publicize an expunged criminal conviction, violating state rules of professional conduct, the Michigan Supreme Court has ruled, reversing an appellate court decision.
“Plaintiff’s and her counsel’s numerous public references to [the defendant’s] inadmissible, expunged indecent exposure conviction, despite a court order excluding such evidence, were obviously intended to prejudice potential jurors,? Justice Maura Corrigan wrote for the four-judge majority July 31.
Justine Maldonado sued Ford Motor Co. in June 2000, alleging that her supervisor, Daniel Bennett, sexually harassed her. At Ford’s request, Wayne Circuit Court Judge Kathleen Macdonald agreed to exclude evidence of Bennett’s 1995 indecent exposure conviction.
In September 2001, however, Maldonado’s lawyers issued a press release that mentioned the conviction, which was subsequently reported by The Associated Press, the Detroit Free Press, WDIV-TV and other news outlets.
In a separate proceeding that November, Bennett’s indecent exposure conviction was legally removed — or expunged — from the public record.
Michigan law makes it a crime to use or tell others about an expunged conviction.
In light of the news coverage, Wayne Circuit Court JudgeWilliam Giovan warned that he would dismiss the case if any attorneys violated their ethical obligation to keep quiet about anything likely to materially prejudice the case and impair the court’s ability to empanel a fair jury.
Despite this warning, Maldonado admitted in her deposition that she would use any opportunity to discuss Bennett’s indecent exposure conviction and, with her lawyers, demonstrated outside of Ford headquarters, distributing leaflets about Bennett’s expunged conviction.
In August 2002, Judge Giovan dismissed Maldonado’s case after Bennett and Ford argued that she and her attorneys were trying to taint the jury pool.
An appeals court concluded that Maldonado’s case had been improperly dismissed in violation of her First Amendment rights, but four members of the Michigan Supreme Court — including Chief Justice Clifford Taylor, Stephen Markman, and Robert Young Jr. — disagreed.
Relying on a 1991 ruling by the U.S. Supreme Court, Justice Corrigan rejected the appeals court’s reasoning that dismissal was improper unless the jury was actually tainted. Not only did the U.S. Supreme Court not require trial courts to find “actual taint? when determining whether a trial court’s limitation is needed to protect potential jurors from prejudice, but that standard is impossible to apply, especially where nearly three years had passed.
This restriction on Maldonado and her attorney’s speech — preventing all public references to the expunged conviction — was not so broad as to violate the First Amendment, Justice Corrigan wrote for the majority. “This limitation on plaintiff’s and her counsel’s speech only applied to speech that was substantially likely to have a materially prejudicial effect and that, therefore, violated the rules of ethics. It did not prohibit plaintiff and her counsel from speaking about sexual harassment or the general nature of plaintiff’s case,? she wrote.
Justices Elizabeth Weaver, Marilyn Kelly, and Michael Cavanagh dissented in two separate opinions.
ACLU of Michigan Legal Director Michael Steinberg told The Associated Press that “the highest court of this state [is] punishing individuals for speaking about matters of great public concern.?
Throwing out an entire case because of a plaintiff’s out-of-court comments is “extraordinary,?‘ attorney Mark Granzotto told the wire service.
The case will likely be appealed to the U.S. Supreme Court, AP reported.
(Maldonado v. Ford Motor Co., Plaintiff’s Counsel: George B. Washington, Scheff & Washington, Detroit, Mich.)


Tuesday, July 17th, 2007

LawReader comment:  This case illustrates why U.S. respect is at new low in world opinion.  This California decision ignores precedent going back to United States v. Rauscher, 119 U.S. 407 (1886), and Johnson v. Browne, 205 U.S. 309 (1907). In those cases, the courts said, state courts were required to uphold a foreign nation’s extradition order invoking provisions of an extradition treaty with the U.S.  This highly technical ruling gives the U.S. court system a black eye.


By a MetNews Staff Writer   July 17, 2007
In sentencing an extradited murder defendant, a U.S. district court is not required to honor a sentence limitation unilaterally imposed by a foreign extradition decree, the Ninth U.S. Circuit Court of Appeals held yesterday.


Affirming a ruling by U.S. District Judge Dana M. Sabraw, of the Southern District of California, the court rejected a petition for a writ of habeas corpus brought by Mexican citizen Cristobal Rodriguez Benitez. 


Yesterday’s decision replaces a prior decision in which the same Ninth Circuit panel, comprised of Senior Judges Jerome Farris and Dorothy W. Nelson, and Richard C. Tallman, concluded Benitez should have been granted relief.


In his habeas petition, Benitez contested the 15-year-to-life sentence he was given after being convicted of murdering a man in San Diego. The victim, shot and killed in 1997, had been involved in an altercation with Benitez’s brother.
After the shooting, Benitez fled to Venezuela.  Pursuant to its extradition treaty with Venezuela, the United States asked the country to extradite Benitez to face murder charges in California.


With respect to crimes punishable by death and life imprisonment, the extradition treaty authorized Venezuela to extradite suspects to the U.S. “upon the receipt of satisfactory assurances? that neither the death penalty nor life imprisonment would be imposed in case of conviction.


The United States informed the Venezuelan Ministry of Foreign Affairs that, if convicted of first degree murder, Benitez would receive a prison sentence of 25 years to life. Venezuela’s Supreme Court approved Benitez’s extradition in August 1998, but stated that a U.S. court convicting Benitez “shall not? sentence him to death, life in prison, or to a term of incarceration exceeding 30 years.
After Benitez was extradited to the U.S., the San Diego County District Attorney filed an information alleging he committed murder and personally used a firearm.


Around the start of his trial in July 1999, the Venezuelan Embassy wrote to the U.S. Department of Justice saying that the sentence Benitez faced might violate both the extradition treaty and the sentence “conditions? set by Venezuela’s high court in approving the extradition request.
Benitez raised this issue at trial. In addition, after he had been convicted and was awaiting sentencing, the Department of State contacted the district attorney’s office advising it not to recommend a life sentence.


Nonetheless, he was ultimately sentenced to fifteen years to life with an enhancement for the personal use of a firearm.


Benitez requested habeas relief on the ground that his sentence violated the U.S.-Venezuela extradition treaty. Sabraw denied his petition, concluding he failed to show that his sentence violated clearly established federal law.


In its prior appellate opinion—first issued last May and subsequently modified twice—the Ninth Circuit said the state trial judge’s rejection of Benitez’s treaty argument had been an objectively unreasonable application of U.S. Supreme Court’s precedent. Under United States v. Rauscher, 119 U.S. 407 (1886), and Johnson v. Browne, 205 U.S. 309 (1907), the panel said, state courts were required to uphold a foreign nation’s extradition order invoking provisions of an extradition treaty with the U.S.


Reversing course yesterday in a per curiam opinion, however, the panel noted that Rauscher and  Browne involved extradition agreements that had been negotiated.


The element of negotiation was absent in Benitez’s case, the judges said, explaining:


“Venezuela could have refused extradition of Benitez until the United States agreed to the sentencing limitation. Instead, Venezuela relinquished custody.?
The trial judge therefore reasonably declined to extend the U.S. Supreme Court holdings to Benitez’s case, the panel held.
The case is Benitez v. Garcia, 04-56231.


Tuesday, July 17th, 2007

Tuesday July 17th, 2007. 

Democratic gubernatorial challenger Steve Beshear leads Republican Gov. Ernie Fletcher by 23 points, according to a Survey USA poll released by WHAS Channel 11 in Louisville. 

While Beshear’s lead remains above the 20-point threshold, it has slipped slightly since Survey USA’s May 25 poll — the first of the general election. That poll showed Beshear 28 points ahead with 62 percent of voters’ support compared to Fletcher’s 34 percent. 

Prior to the elections last fall, the Survey USA poll was the most accurate public poll on the Kentucky election. 

One of Americas Top Plaintiffs Lawyers Makes a Key Tactical Error During Oral Argument in a Case Against Big Tobacco. When Bad Things Happen to Smart Lawyers

Tuesday, July 17th, 2007

By ANTHONY J. SEBOK  Tuesday, Jul. 17, 2007
 Last week, one of America’s premier class action plaintiffs’ lawyers went to the U.S. Court of Appeals for the Second Circuit to defend the certification of perhaps the largest class action in the history of the world. The lawyer is Michael Hausfeld, and the case involves a nationwide racketeering suit against the tobacco industry, worth an estimated $800 billion. Despite his well-known skill, during this oral argument, Hausfeld got slaughtered. This column, thus, is a reflection on what happens when bad things happen to smart lawyers at oral argument.

 The Case: A Potentially Massive Class Action

 I have written about this case before. It is now called McLaughlin, et. al. v. American Tobacco, Co., et. al.. However, when it was the subject of a 2006 decision by Judge Jack Weinstein of the U.S. District Court of the Eastern District of New York, it was known as Schwab, et. al. v. Philip Morris.

The theory of the case is deceptively simple: By 2001, a consensus had developed among public health officials that “lights” cigarettes were no safer than regular, full-flavored cigarettes, for a variety of reasons. The most important of these reasons was that, although lights cigarettes generated less tar and nicotine under ideal laboratory conditions, in the real world smokers tended to compensate for the fact that they received less of the bad stuff they craved either by unconsciously puffing harder on lights cigarettes, or by simply smoking more of them.

 Plaintiffs attorneys including Michael Hausfeld contended that the cigarette industry had known for years that real-world use of lights cigarettes was no safer than that of regular cigarettes. Yet, the attorneys said, Big Tobacco had nevertheless introduced the moniker “lights” with the expectation that consumers would associate the term with healthfulness, and buy light cigarettes instead of cutting back or quitting.

 Misrepresentations In Search of a Legal Theory of Damages

 Plaintiffs’ lawyers have known for years that there is a good case to be made that Big Tobacco introduced lights cigarettes in order to maintain their market–not to make people healthier. However, the problem with frame such allegations as a lawsuit has always been: Where are the damages? Since a significant number of people who switched to lights cigarettes would have smoked regular cigarettes anyway (they would not have quit in the end), where is the added harm of lies that were told about the healthfulness of lights?

 Had they known the truth, people who actually believed that light cigarettes were safer would have merely had to give up the fantasy that they could smoke and remain healthy, but statistically still would have had trouble quitting. Meanwhile, people who never really believed that light cigarettes were safer (and there seem to be many) never really relied on the “lights” claims, and thus suffered no damages from them.

 Hausfeld Comes Up with a Clever Theory: Damage At the Time of Purchase

Mike Hausfeld came up with a creative theory to solve this problem with the case. He decided to sue the tobacco industry under the federal racketeering law, known as RICO. This gave him two advantages: First, a suit under RICO meant that he could create a huge class action, since federal law is in force in all fifty states.
Second, a suit under RICO would frame the harm in terms of the money that was taken from smokers as consumers, not the injury that they may or may not have suffered as smokers. As long as Hausfeld could prove that a smoker got less than what she paid for when she bought lights cigarettes, and that she bought the lights because of a misrepresentation made by the tobacco companies, then he had a RICO class action–or so he thought.

 Big Tobacco aggressively fought Hausfeld’s suit, but they had two major problems to overcome. First, as noted above, half of the story Hausfeld was telling was obviously true: In fact, the whole history of the development of light cigarettes reflects a cynical attempt to market a fiction: Big Tobacco knew when it introduced “lights” that they were no safer than other cigarettes, and deliberately concealed that fact. Second, the judge who was going to decide whether to certify the class action was Jack Weinstein, an expert in class action law who has overseen a number of large tort cases, and is not loath to certify a class action when the circumstances militate in its favor.

 A Big Win for Plaintiffs: Class Action Certification

 One of the best-known dilemmas of consumer fraud law, state or federal, is that most fraudulent conduct is never the subject of litigation, simply because it doesn’t pay to sue. A lawsuit against someone who lies about their product might cost thousands of dollars to bring, yet the compensatory damages–even if they are trebled–might be relatively small. Since, in America, lawyers’ fees are paid out of the damages won by the plaintiff–if she wins–it is thus no surprise that most “small ticket” frauds are never the subject of litigation, even if, in theory, they are slam-dunk cases. (For truly heinous conduct, punitive damages can be awarded, but the Supreme Court has, as I discussed in
a prior column, reined in punitive damages by imposing a ratio of punitive to compensatory damages.)

 The class action can sometimes change this dismal equation. But for a plaintiffs’ lawyer, there is a huge hurdle to overcome to get a judge to certify a class. Under Federal Rule of Civil Procedure 23, a class action can be certified only if a number of conditions are met. A judge must agree with the plaintiff that common issues of fact dominate the case, that class treatment would be superior to individual trials, and that the class representatives chosen by the plaintiffs’ lawyers are indeed representative of the rest of the members of the class.

 Judge Weinstein held that the class proposed by Hausfeld–persons who purchased lights after May 2000 (four years before the suit was filed) — satisfied the requirements of Rule 23. The defendants had fought certification by arguing that the central facts of the RICO suit varied identical among class members; smokers of lights cigarettes smoked them for various reasons, not simply because they believed that they were safer. Moreover, Big Tobacco said, the class members also varied in the damages they suffered, for some got cigarettes that were much safer than the cigarettes others received.

 The Appeal to the Second Circuit: Why the Plaintiffs Were Fighting an Uphill Battle

 Hausfeld was able to get his class certified by Judge Weinstein because the judge was very interested in seeing Big Tobacco put on trial for its sins, and because the judge was willing to bend (or ignore) settled Second Circuit law to get to that goal.
The interlocutory appeal filed by Big Tobacco was another story, however. After Weinstein certified Schwab, the Second Circuit issued its 2006 opinion in In re Initial Public Offering Sec. Litig. There, a unanimous panel of relatively liberal judges (Newman, Sotomayor, and Hall) agreed that Rule 23 had previously been interpreted too loosely by the Second Circuit, and that the test for certification should be stricter than earlier imagined.

 Due to this sharp reversal of course, I was a bit surprised when the first words I heard out of Hausfeld’s mouth at his oral argument in front of the Second Circuit were to contend that if Judge Weinstein’s certification were to be reversed, the panel would also be reversing “twenty years of settled law.” After all, IPO had already shown the Second Circuit was inclined, in this area, to depart from its prior interpretation of Rule 23. Moreover, after IPO, it looked like Judge Weinstein had made a bet about where the law was going, and had been proved wrong.

 Hausfeld was facing a tough panel, and he needed to be very careful about how he approached his argument. On the political right, Judge Ralph Winter was never going to accept the certification. On the political left, Judge Rosemary Pooler was looking for any excuse not to reverse Judge Weinstein. And in the political middle (sort of), was Judge John Walker. Walker, although a Republican appointee, has a reputation for being pretty independent and fair-minded. Tellingly, his reaction to Hausfeld’s opening comment was incredulous. The last thing he wanted to hear was that judicial conservatism somehow required upholding Weinstein’s radical move.
The oral argument went downhill from there. Hausfeld lost his case in the first five minutes, when he challenged the panel to adopt a view of the Circuit’s own law that bore no resemblance to what they knew that law to be. Perhaps Judge Walker might, before oral argument, have been ready to bend the rules to permit the lights suit to go forward, viewing it as an episode of rough justice against a highly unsympathetic defendant. This is, after all, how the Holocaust slave labor cases made it through the federal courts. But he was certainly not going to pretend that the lights case was not a departure from settled law, which is what Hausfeld was asking him to do.

 The Likely Result: Reversal of Judge Weinstein’s Certification Decision

 I predict that the lights class action will be decertified, dealing a harsh blow to the “lights” litigation. The vote might even be 3-0, since Hausfeld’s argument was so outrageous that it left the one liberal on the panel, Judge Pooler, searching for a reason to support him.

 This loss for the plaintiffs may well have been inevitable: I don’t know whether, even had he taken a different approach, Hausfeld would have been able to cobble together a 2-1 majority to preserve his class action The lesson of Hausfeld’s blunder, however, is that a little bit of modesty can go a long way when one is trying to defend a highly controversial lower court opinion in front of an appellate court.

Find out which Indiana casino pays out the best on different games.

Sunday, July 15th, 2007 provides a data base that allows you to select a casino, then a game, and then to see the percentage of winnings for this type of gambling for the preceding month.    


We note that the winnings returned on slots runs from 92% to 98%.  This is a significant difference.  For example: The $100 slot machines at Argosy return 95.81%.  The $100 slot machines at Belterra return 98.3%.


I always say that there is nothing more fun then spending the entire evening on the $100 dollar slots!    


To see for yourself what the returns are on your favorite gambling vice, go to:   Select the casino, then select the game.

Study Shows Public Defenders Get Better Marks When on Salary

Saturday, July 14th, 2007

By ADAM LIPTAK  Published: July 14, 2007 New York Times
Some poor people accused of federal crimes are represented by full-time federal public defenders who earn salaries, others by court-appointed lawyers who bill by the hour. A new study from an economist at Harvard says there is a surprisingly wide gap in how well the two groups perform.

See: Text of the Study: An Analysis of the Performance of Federal Indigent Defense Counsel (pdf)

Both kinds of lawyers are paid by the government, and they were long thought to perform about equally. But the study concludes that lawyers paid by the hour are less qualified and let cases drag on and achieve worse results for their clients, including sentences that average eight months longer.
Appointed lawyers also cost taxpayers $61 million a year more than salaried public defenders would have cost.
There are many possible reasons for the differences in performance. Salaried public defenders generally handle more cases and have more interactions with prosecutors, so they may have a better sense of what they can negotiate for their clients. Salaried lawyers also tend to have superior credentials and more legal experience, the study found.
The study will add a new layer to the debate over the nation’s indigent defense systems. In 1963, the United States Supreme Court ruled in Gideon v. Wainwright that poor people accused of serious crimes were entitled to legal representation paid for by the government.
The federal system handles about 5 percent of all criminal prosecutions and is relatively well financed. The implications of the new study for the states may therefore be limited.
But more than half the states use a combination of public defenders and appointed lawyers, and most indigent defendants are not represented by staff public defenders at the trial level.
In the federal courts, roughly three-quarters of all defendants rely on lawyers paid for by the government, about evenly divided between salaried public defenders and appointed lawyers paid by the hour. Most of the rest hire their own lawyers, with about 2 percent representing themselves.
Before the new study, the debate over how best to provide poor defendants with adequate representation had largely concerned whether lawyers for indigent defendants were paid enough to ensure a fair fight with prosecutors. The debate did not much consider how the lawyers were paid, and whether that made a difference.
The new study looked at federal prosecutions from 1997 to 2001. It was performed by Radha Iyengar, a postdoctoral fellow at the Institute for Quantitative Social Science at Harvard, and presented as a working paper of the National Bureau of Economic Research last month.
Judge Morris B. Hoffman, a Colorado district court judge and a co-author of a 2005 study on the representation of indigent defendants, said the new study’s innovation was in its noticing that public defenders and appointed lawyers were assigned randomly in many federal judicial districts.
That meant, Ms. Iyengar wrote, that the two sorts of lawyers had “the same underlying distribution of guilt in the cases they represent and thus are equally likely to lose at trial.?
Court-appointed lawyers — known in federal judicial jargon as Criminal Justice Act panel lawyers — are needed when public defenders’ offices have conflicts of interest in cases involving multiple defendants. They can also fill in as the volume of prosecutions requires.
The vast majority of federal prosecutions end in plea bargains, and only about 5 percent of them reach trial. Ms. Iyengar found that court-appointed lawyers were slightly more likely to take cases to trial and slightly more likely to lose.
But her most important finding, given all the plea bargains, was that defendants represented by court-appointed lawyers received substantially longer sentences. That suggests that appointed lawyers are less adept at assessing which cases to pursue through trial and at negotiating with prosecutors.
Over all, defendants represented by court-appointed lawyers received sentences averaging about eight months longer. People convicted of violent crimes were given five more months, while those convicted on weapons charges received nearly a year and half more. But those convicted of immigration offenses received sentences that averaged 2.5 months less if represented by appointed lawyers.
Appointed lawyers took longer to resolve cases through plea bargains — 20 days on average, a 10 percent difference.
“These results appear consistent with the hourly wage structure,? Ms. Iyengar wrote, as that structure creates incentives for appointed lawyers to take longer to resolve cases.
She concluded that appointed lawyers impose an additional $5,800 in costs to the system for every case they handle.
Analyzing data from California and Arizona, the study found that appointed lawyers were less experienced and had less impressive credentials.
“The court-appointed lawyers tend to be quite young, tend to be from small practices and also they tend to be from lower-ranked law schools,? Ms. Iyengar said in an interview. “They have a smaller client base and fewer interactions with prosecutors.?
Judge Hoffman said a number of the study’s conclusions were unsurprising given that finding. However they represent their clients, less experienced lawyers tend to do less well in plea negotiations, in deciding which cases to take to trial and in trial outcomes, he said.
Jon M. Sands, the federal public defender in Arizona, said he did not recognize the picture painted in the study. Court-appointed lawyers, Mr. Sands said, “are seasoned and committed, and their sentences on the whole don’t vary that much from those obtained by public defenders.?
David Carroll, the research director for the National Legal Aid and Defender Association, said the study’s most important point was economic. “There is,? Mr. Carroll said, “a cost savings in establishing staff public defender offices.?


Friday, July 13th, 2007

By LawReader Senior Editor Stan Billingsley

At LawReader we try to report the Law Behind the News.  We delight in finding news stories where incorrect legal theories are being fed to the public.  Many of these stories come from the mouths of otherwise intelligent people, who are thrown off balance by having a camera pointed in their direction.  They sometimes make claims and express views that are not well founded in fact, law or reality.

This week, there is a story that fits our profile, but it is so off the wall that it makes my head hurt.

Officials in Frankfort, have been proposing a new city tax to soak the lobbyists.  Now this tax is not designed just to steal a little of the gold dust off the backs of the highly paid corporate lobbyists, it apparently will be so draconian as to include Mayors,  County Judges and private citizens from other areas of the state who have come to Frankfort to “lobby?  their legislature. 

A representative of the Frankfort City Council was quoted in the paper this morning saying they were studying methods to apply this new tax so as to fill the cities coffers.

It has been my belief that under Section 1, article 6, of the Kentucky Constitution  Bill of Rights, that every Kentuckian has the right to petition their government. That is the clause that says:

“Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance. “

Knowing how taken we all are with our Bill of Rights they see a real opportunity to make us pay to express that right in their city. I think they also tax pilgrims going to Mecca.

Now, bear with me, this is the part that makes my head hurt.   The fount of civic wisdom that was quoted in the Courier Journal on behalf of the City fathers of our Capital City, said they were considering making this tax RETROACTIVE.  Perhaps they intend to go so far back into our lives that it will be a prenatal tax and be imposed on us back to the instant that the right to lifers say our lives began.

The Courier Journal article quoted lobbyists who would be subject to this proposed tax, as saying that the retroactive imposition of such a tax would require them to go back and refile their income taxes for each year the retroactive law was applied.

I don’t really know where to begin to find a court ruling that says a city can’t impose a retroactive tax.  That would seem to be as forbidden as an ex post facto law.  I suppose in the long history of cities there has been someone else who has become intoxicated with their taxing powers and tried to pull this one off before.

But I would propose a better solution.  Let’s just move the State Capitol to Carrollton.  That is only 50 miles north of Frankfort, and our river is a whole lot wider and longer than the river that runs through Frankfort.   We don’t have near the downtown traffic congestion here, and our City fathers are so afraid of imposing new taxes that they can’t even say the word in public.

We could move the Executive Branch and the Governor’s Office into the Old County Jail which is an old blockhouse located on the town square, and is now a museum.  So many of the members of the Executive Branch have been indicted lately, that they should feel right at home there.

We could move the House of Representatives into the vacant building that my friend Ed Ashcraft from Owenton owns that used to house the Sav-A-Lot.  They don’t need much space anyway since they are now in the habit of only meeting for two hours before adjourning.  Ed is looking for a tenant and might make them a really good deal.

I’m sure we could find some room for the State Senate, but I would suggest that everyone would be better off if we just donated our State Senate to the State of Nebraska which only has one house of their legislature (they call it a Unicameral legislature).  But they may not want our Senate since they have done so well without a State Senate there.  H-m-m-m maybe we should study the Nebraska plan a little closer.

Another alternative is for the Governor to entice the House of Representatives back to town to complete the Special Session by introducing a bill to revoke the city charter of Frankfort, and declare it a District like the District of Columbia.  

We could then create a small agency in the Department of Tourism that could run Frankfort, but would not have the power to create any new taxes on our right to redress our grievances.




Ky. Corrections Chief Disobeys Court Order to release inmate, says Judges are sometimes wrong.

Friday, July 13th, 2007

July 13, 2007

Judge Judy means business when she issues a court order! 

 A Jefferson Circuit Court judge found Kentucky Corrections Commissioner John Rees in criminal contempt of court for refusing to release an inmate the judge had ordered to be freed on shock probation.

 The correct procedure for avoiding compliance with a court order is to seek a Writ of Prohibition from the Court of Appeals.  Such Writs can be obtained in as little as one day.

The incorrect procedure is to ignore the court order.  No one should ever ignore a court order.  That is an act of civil disobedience, but as Mohatmu Gandhi noted, one who commits an act of civil disobedience must be ready to pay the penalty for their acts. 

The Department of Corrections has staff attorneys available to provide such basic advice to the Commissioner.

Judge Judith McDonald-Burkman said in a hearing that Rees “willfully violated” a court order last month by not releasing inmate Daniel Ottman. The judge will rule on Rees’s sentence, which could be a fine or even jail time, next week.

 Kentucky law does not allow adult inmates convicted of violent offenses to be granted shock probation. However, a 2006 Kentucky Court of Appeals opinion found there is an exception for juvenile offenders, which Ottman was at the time of his arrest.

 The state Supreme Court is reviewing that 2006 decision. But Judge McDonald-Burkman said that Ottman is eligible for shock probation at least while the issue is pending before the Supreme Court.

 This is at least the second time in recent months that Rees has refused a judge’s order to release a juvenile inmate on shock probation.

 In June, Rees refused to release Ottman, claiming the 18-year-old was ineligible for shock probation because the teen had been convicted of a first-degree assault, a violent offense.

 “I personally feel I was correct,” Rees said after he left the courtroom. Rees said the Department of Corrections would appeal the decision.

 Sometimes, Rees reasoned, judges make “mistakes.”

 Rob Eggert, Ottman’s attorney, asked the judge to jail Rees for six days, the amount of time that the inmate was held in prison after the entry of Judge McDonald-Burkman’s order of release.
 Rees was appointed as Commissioner of the Dept. of Corrections on January 13, 2004 by  Governor Ernie Fletcher.  Prior to his appointment Rees was  self-employed as a consultant providing services for corrections and criminal justice administration.

In 1969 Rees began his career in corrections at the Kentucky State Reformatory as an  assistant casework supervisor. Three years later, he was promoted to the position of director of the Division of Special Institutions with the former Kentucky Bureau of Corrections. He served in several capacities within the Kentucky Corrections system until 1976 when he left the state to work for the Oklahoma Department of Corrections.

 He returned to Kentucky in 1980 to become warden of the Kentucky State Reformatory, a position he held for six years. From 1986 to 1998, Rees worked for Corrections Corporation of America, a private correctional management firm. He managed facilities in New Mexico, Texas, Louisiana and Tennessee before becoming vice president of business development.


Friday, July 13th, 2007

Dr. Wayne Villanueva, a neurosurgeon at Jewish Hospital, removed a brain lesion from the base of the skull of  Kentucky Supreme Court Justice William E. Mcanulty Jr. yesterday.  The procedure was described as a “gross total resection? .


Justice McAnulty learned only two weeks ago that he had lung cancer and the brain lesion.   He was reported to be doing “extremely well?.


McAnulty will undergo radiation therapy later this month.


Thursday, July 12th, 2007

Larry Flynt, the publishing magnate, whose empire includes Hustler Magazine has offered $1,000,000  for revelation of sex secrets of Members of Congress. 

It appears that Louisiana Senator  David Vitter ( R) is the first official to be caught up in the trap.  It is claimed that his name was on the D.C. Madam’s telephone list, and Flynt has charged that Vitter was further connected to a brothel in Louisiana.   

Rumors persist on the internet that Flynt will make more dramatic charges against Sen. Vitter in the near future which will damage Vitter’s relationship with his white fundamentlist Christian base.

 Flynt is reported to have announced on MSNBC that “he has 3 more senators and 25 Congressmen?… on his list.   

   Other reports are circulating on the Internet regarding speculation about who in the White House hired James Guckert, also known as Jeff Gannon, who posed as a newsman at Presidential press conferences in 2005, and asked planted softball questions of the President.
It was disclosed at the time, that Guckert owned male escort sites, and was himself a male prostitute.  These disclosures lead to withdrawal of his White House Press Credentials in 2005.
Guckert had remarkable access to the White House. Though he wrote under the name Jeff Gannon, the records show that he applied for his White House credentials with his real name.  Secret Service records indicate an unusual pattern of Guckert visiting the White House without signing in or signing out as is required of every other visitor to the White House.


Rumors suggest that there may be more disclosures made about Guckert’s White House activities.




Thursday, July 12th, 2007

   LawReader Senior Editor Stan Billingsley:In the Nixon/Watergate case the Supreme Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privilege.

A battle over the extension of the doctrine of Executive Privilege being sought by the Bush Administration could be a calculated bluff, or it could be the ultimate conclusion of a power grab by the Executive Branch in light of the final realization of the conservative majority makeup of the Supreme Court. 

 Is the administration picking a fight with Congress to allow the Supreme Court to extend the doctrine so far as to destroy Congresses right to issue subpoenas and investigate the actions of the Executive Branch? 

If the Executive is granted the right to deny Congress access to Executive Branch documents and to question Executive Branch officials, to the degree sought by Bush/Cheny doctrines, then the system of checks and balances will be dangerously readjusted in favor of the Executive. 

Will the Supreme Court convert the Presidency into a  Monarchy which is not answerable to Congress?  If only five judges on the Court ruled that the Executive was not answerable to Congress, then Congress will become meaningless.  

Recent rulings by the conservative majority on the court have limited the traditional right of citizens to sue the Executive Branch on the grounds that they do not have “standing?.  The Faith Based funding by the White House ruling may show the direction the court is going.  The court held that the White House funds could be spent by the President without limitation…but similar funding by Congress would have been subject to the citizen’s civil action.  This reasoning seems to indicate a propensity for the Court to accrue more and more power and immunity to the Executive Branch while weaking the relative power of Congress.

A contrary thought may be just as valid in this issue.  Is the Administration misreading the direction the Conservative “strict constructionist? judges may take? 

There is no mention in the Constitution of “executive privilege?. That would make it intellectually difficult for a ?strict constructionist? judge to find support for such a doctrine or even for the expansion of the existing decisions on this court made doctrine.

 A truly conservative court would seek to maintain the checks and balances of one branch of government over the other.  One would think that if the Supreme Court allows the Executive to devour Congress, that the Judicial Branch may be the next meal on the plate.
In the Nixon case the Supreme Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privilege. That court clearly limited the use of the Executive Privilege doctrine. 

The Nixon  ruling paid homage to  history and precedent and supported a ruling Chief Justice Marshall wrote limiting the right of Thomas Jefferson to withhold papers from a court in the trial of Aaron Burr.   

The current Supreme Court has shown a willingness to overrule precedents, and to create new doctrines. This is hardly the kind of strict constructionists that most conservatives thought they were getting.   
Article  Published in Boston Globe July 12, 2007
Cass R. Sunstein (law professor at the University of Chicago) 

Article  Published in Boston Globe July 12, 2007Cass R. Sunstein ( IN THEIR struggle over documents relating to the replacement of US attorneys, the president and Congress have downplayed a critical point: The doctrine of executive privilege remains a constitutional wilderness, and courts have done little to sort out the problem.

Because the law is so wide open, both President Bush and the congressional Democrats have made plausible arguments. In any judicial proceeding, the outcome would be hard to predict; neither side has reason for great confidence.

The Constitution does not refer to executive privilege at all, and some “strict constructions” believe that the whole idea is a constitutional myth. But presidents have long insisted that in order to exercise their constitutional authority, they need to be able to keep their own communications confidential.

The Supreme Court finally accepted this claim during the Watergate dispute in 1974 — but President Nixon lost anyway. The court agreed that the Constitution gives the president a privilege against mandatory disclosure of his communications, at least when he is speaking with his closest advisers. But the court also ruled that the privilege is qualified rather than absolute, and that it can be overcome when “weighty and legitimate competing interests” are at stake. In the Nixon case, the court concluded that the need for evidence in a criminal trial is sufficient to overcome the privilege.

Since the Nixon decision, lower courts have struggled with two different questions. The first involves the scope of the privilege: Is it restricted to communications involving the president (and vice president) personally, or does it include everyone in the White House or even executive branch? The second involves the weight: What must a congressional committee show to overcome the privilege?

On the first question, the Bush administration argues that Congress cannot obtain communications by White House staff involving a decision ultimately to be made by the president himself. And indeed, a federal court of appeals has said that executive privilege covers all “communications authored or solicited and received by members of an immediate White House adviser’s staff” giving advice “to the president on the particular matter to which the communications relate.”

So if Harriet Miers, Bush’s former counsel, produced documents on replacing the US attorneys, the president can reasonably argue that executive privilege applies. Congress does have some responses. It might contend that some of the relevant communications come from people outside of the executive branch. In general, these communications were neither “authored” nor “solicited and received” by White House staff. Unsolicited outside communications may not fall within the privilege.

Congress might also note that the White House has said that President Bush did not decide, personally, to replace the US attorneys. Congress might contend that the privilege applies only to communications culminating in the president’s personal decision.

Even if the privilege applies, Congress can argue that it is overcome here, because there is legitimate reason to suspect serious wrongdoing on the part of the executive branch. It would be a grave matter — conceivably even an impeachable offense — if the White House used its power over US attorneys to punish those who prosecuted Republicans or declined to prosecute Democrats. If Congress has reason to suspect that something like this happened, it might be able to overcome the privilege, just as in the Nixon case.

The president’s best answer is that this is not a judicial proceeding and that Congress has not demonstrated anything like sufficient need for these materials. The Department of Justice argues that Congress has received “thousands of documents and dozens of hours of testimony already.” The department adds that Congress must do more than to say, in a general way, that it fears wrongdoing or that the materials “are of public import”; it must show that they are “demonstrably critical” to Congress’ effort to exercise its constitutional role.

Congress’ strongest reply is that the evidence reveals a real need for the documents, which are indispensable to establish whether a genuine misuse of executive power has occurred. Congress might add that its own lawmaking prerogatives are at stake. If partisan politics has affected the decision to replace US attorneys, it might seek to enact corrective legislation.

In arguing for inherent authority to engage in torture, and for the power to make war without congressional approval, the Bush administration has made some extravagant arguments about executive power. But the president’s authority to resist congressional subpoenas has never been well defined. If the issue gets to court, anything can happen.
Cass R. Sunstein is a law professor at the University of Chicago

U.S. v. Isaacs, 493 F.2d 1124 (C.A.7 (Ill.), 1974)
We conclude that whatever immunities or privileges the Constitution confers for the purpose of assuring the independence of the co-equal branches of government they do not exempt the members of those branches ‘from the operation of the ordinary criminal laws.’
Criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government.
Also see:

Discussion of Executive Privilege and Immunity from Prosecution

Columbia University press – This entry is from Wikipedia, the leading user-contributed encyclopedia:
The use of executive privilege decreased during the 1960s, but it became the crux of the constitutional crisis created by
Watergate, a series of scandals involving President Richard M. Nixon and his associates. When Congress sought to obtain White House tapes containing Oval Office conversations, Nixon refused to turn them over, claiming that the tapes were subject to absolute executive privilege and asserting that the judiciary had no authority to order their production or inspection. Eventually the dispute reached the Supreme Court, where, in United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court ruled against Nixon.
While acknowledging the importance of the president’s claims, the Court stated that “neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”
 In its opinion, therefore, the Court explicitly recognized the president’s authority to assert executive privilege, but ruled that the use of executive privilege is limited, not absolute.

Furthermore, the Court maintained that the judiciary, not the president, has the power to determine the applicability of executive privilege. While the Court affirmed the use of executive privilege, therefore, it determined that in this case, the right of the U.S. people to full disclosure outweighed the president’s right to secrecy. This momentous decision soon led to Nixon’s resignation from the office of president.
                                 Columbia University press –
  executive privilege, exemption of the executive branch of government, or its officers, from having to give evidence, specifically, in U.S. law, the exemption of the president from disclosing information to congressional inquiries or the judiciary. Claims of executive privilege are usually invoked to protect confidential military or diplomatic operations or to protect the private discussions and debates of the president with close aides.
 Efforts by various presidents since Eisenhower to gain absolute and unqualified privilege have been rejected by the courts, though they remain inclined to support most claims of executive privilege.

Where criminal charges are being brought against a president, as in the case of Richard Nixon, the claims of executive privilege are weakest; during the process leading to the impeachment of President Bill Clinton, numerous claims made by the White House were dropped when it was clear courts would not uphold them.
The Supreme Court did not reject that claim out of hand; it noted, in fact, “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.

As the Court stated, “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.” This is very similar to the logic that the Court had used in establishing an “executive immunity” defense for high office-holders charged with violating citizens’ constitutional rights in the course of performing their duties.
The Court did not, on the other hand, accept Nixon’s privilege argument on the facts of that case. Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
The concept of executive privilege is a legally murky one, since the Constitution does not mention it anywhere. The history of the doctrine underscores that point, since Presidents have generally sidestepped open confrontations with Congress and the courts over this issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.
Jefferson set the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr.

Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the President. As for Jefferson’s claim that disclosure of the document would imperil public safety, Marshall held that the court, not the President, would be the judge of that. Jefferson complied with Marshall’s order, but claimed he was doing so voluntarily


Wednesday, July 11th, 2007

A training class named, Marihuana Identification training has been transferred from the State Crime Lab to the Dept. of Criminal Justice Training. 

Authorities familiar with the program have told LawReader that under the training program that local police departments will be allowed to conduct their own marihuana drug testing, and to then testify for themselves as expert witnesses in misdemeanor cases.

Defense Attorney Tasha Scott practices in Kenton and Boone counties in Northern Kentucky.  She questions the use of police officers who seize evidence to also do the testing:

“By placing the testing into the hands of the arresting agency, we are removing the impartial and well-trained scientist in favor of an officer who may have first hand knowledge of an accused. This is a bad idea, and seems to violate fundamental fairness issues.?

“I have a number of concerns..? said  Former Judge and Prosecutor Benham Sims of Louisville.  Sims is the author of a Prosecution and Defense manuals for DUI offenses.  He was named Prosecutor of the Year in 1995 and was named by MADD as Prosecutor of the Year in 1996. He goes on to say:

“This is a classic example of having the fox guard the chicken coop. It is neither good science nor proper police practices and procedures to have officers within the department running tests for their fellow officers. It removes any impression of independent testing.

I am also concerned about the fact that the Eastern Kentucky Forensic Science Program is training the officers instead of the Kentucky State Police Forensic Lab. What are credentials of the EKU program? Who are the instructors and what are their credentials? Why is the program with EKU a three day program when the identical program initiated by Kentucky State Police in the 1980′s required a full week of training? What is their training methodology? What is the protocol for testing the officers? Will EKU demand 100% score on the classroom testing as KSP did? Do they test for chemical stains? Can the officer distinguish the difference between hops and marijuana, or hemp and marijuana?  Genealogically speaking hops is same genus but not the same species- will the officer be able to distinguish the difference? What are the “practical tests required?             
As you are aware, the Kentucky State Forensic Lab enjoys an outstanding reputation in the forensic community. With the hiring of 22 trained lab technicians several years ago, the 8000 case backlog has now been eliminated.

The Forensic Lab- to its credit, is implementing a new LIM (Laboratory Information Management) program to permit officers, courts, prosecutors and defense attorneys to access lab results, DUI intoxilyzer maintenance records via the Internet. This new program should greatly improve the efficiency of the KSP lab and our criminal justice system. Given the fact that we are no longer backlogged, the obvious issues regarding laboratory independence, and the waste of taxpayer money-this is an unwise move on behalf of any department.? 
    The course description published by the Justice Cabinet indicates that the officer will be trained to conduct chemical and microscopic examinations on marihuana and “other samples?.  It is not disclosed in the course description as to what is meant by “other samples?. 

Department of Criminal Justice Training assistant General Counsel Steve Lynn says the students who complete the 24 hour course, will be allowed to identify marihuana and not other “samples? as suggested  in the course description  

Similar training until last year war provided by the State Crime Lab.  The Ky. State Crime Lab does not refuse to do this testing and continues to invite all police agencies to submit any suspected sample for forensic testing.

The Dept. of Criminal Justice Training lists a new course as “Marihuana Identification? Course Number: 0765-06J.  The  3 day course requires 24 hours of class time. The next session of the three day course begins on July 17 and runs through the l9th., at the Richmond, Kentucky campus

“Course Description: The particpant will learn to conduct chemical and microscopic examinations of marijuana and other samples. Classroom lecture as well as laboratory exercises will be conducted. The successful completion of the course will certify the participant as a marijuana identification analyst. This course is taught in conjunction with the Eastern Kentucky University, Forensic Science Dept., the Kentucky State Police Central Crime Laboratory, and the Dept. of Criminal Justice Training?
  The course is open to sworn law enforcement officers as well as civilian personnel employed by a Kentucky law enforcement agency and who meet the criteria of KRS 218A.220

As LawReader understands the program, a local police agency can designate one of their officers to attend a training course.  This officer then becomes the designated person in that police department to perform testing of suspected “marihuana and other samples? in misdemeanor cases. He will carry the title of  “marijuana identification analyst?.

That means that the theory of tests being conducted by an “impartial and neutral? professional laboratory, who have nothing to gain by a positive test result, has become another urban myth.  

A police officer seeking a search warrant or making an arrest, can now rely on his own agency for confirmation that a sample obtained from the suspect or his property is identified as marihuana.  We have found no Administrative Regulation or program rule that grants authority for a police officer to conduct his own drug tests and then testify as an expert.  This suggests that the rules are being made up by the individual police agencies as to how they will monitor their own testing programs and whether or not the same officer who seizes a sample will allowed to be the “expert? who tests the sample.

The Ky. State Crime Lab is accredited by the American Society of Crime Lab Directors (ASCLD).  This group reviews policies and procedures of persons and agencies who test drug (and other forensic) samples.  We do not know of any local police agency that is accredited by an independent association.
Attorneys are not experts in the forensic sciences and cannot be called as drug test experts after 3 days of classes.   Forensic experts spend years learning their field. Attorneys do not and cannot spend years learning the field of expertise to be able to check the reliability of the testing done by the state experts, to be able alone to effectively cross the state’s expert on the testing done and the opinions rendered.   
The courts that allow the police to testify as drug test experts, will be placing a heavy burden on defendants who may not be able to locate or afford their own expert.

KRE 702 sets out the standards that trial judges must use to consider that qualification of experts before their testimony is admissible.  Any judge who just rubber stamps such testimony whenever a certificate of attendance is presented by the police office, may not be aware of the difficulties is obtaining accurate drug test results under the best of situations.  The trial judge should not abdicate his gate keeping function, and should require that any proposed expert is “reliable?.
Even accredited drug labs report high error rates. JAMA, The Journal of the American Medical Association has the largest circulation of any medical journal in the U.S.. JAMA is a highly cited weekly medical journal that publishes peer-reviewed new medical research findings . See:
  A JAMA article notes error rates of the 13 drug labs they tested.

JAMA. 1985 Apr 26;253(16):2382-7.

National Library of Medicine and the National Institutes of Health                                            

Crisis in drug testing. Results of CDC blind study. Hansen HJ, Caudill SP, Boone DJ.“In response to questions about the reliability of the results of screening urine for drugs, we evaluated the performance of 13 laboratories, which serve a total of 262 methadone treatment facilities, by submitting prereferenced samples through the treatment facilities as patient samples (blind testing). Error rates for the 13 laboratories on samples containing barbiturates, amphetamines, methadone, cocaine, codeine, and morphine ranged from 11% to 94%, 19% to 100%, 0% to 33%, 0% to 100%, 0% to 100%, and 5% to 100%, respectively.

Similarly, error rates on samples not containing these drugs (false-positives) ranged from 0% to 6%, 0% to 37%, 0% to 66%, 0% to 6%, 0% to 7%, and 0% to 10%, respectively.

These blind tests indicate that greater care is taken with known evaluation samples than with routine samples, laboratories are often unable to detect drugs at concentrations called for by their contracts, and the observed underreporting of drugs may threaten the treatment process. Drug treatment facilities should monitor the performance of their contract laboratories with quality-control samples, preferably through blind testing.?

Publication Types:

·         Research Support, U.S. Gov’t, P.H.S.
PMID: 2984441 [PubMed – indexed for MEDLINE

Another authority identifies another basis for false test results:

“Drug Testing: What Can Go Wrong in the Lab,” Privacy Journal, June 1988, p. 4.

4. Ibid. p. 112. When looking for very tiny traces of drugs (at the level of one billionth of a gram), the tests are beyond their practical detection limit. A result of “two parts per billion with drug traces” might just as likely be the result of scientific imperfections, rather than the actual presence of drugs. Yet such low–level results are used to accuse people initially, and to confirm the accusation later 


      In light of the exposure of many problems in forensic testing by JAMA, (later reviews disclosed numerous errors in forensic testing by the FBI lab), the farming out of marihuana testing to local police agencies raises many troubling questions.


  1. How complete is the training?  What does “other samples? mean in the course description?
  2. Does anyone review and check the results other than the designated officer?
  3. How reliable are the testing procedures used by the local police agencies?
  4. Did the training actually test the officers ability to correctly perform the drug tests?  Or did he just attend the course with no review of skills?
  5. What safeguards are in place to prevent results being influenced by the officer who seized the sample during a search?
  6. Will the courts allow introduction of such tests?  Have the procedures been subject to a Daubert review?
  7. Under the system of identification taught in this class, how small of a sample is still capable of a valid test.  We are aware of claims that officers who go through an ashtray have produced one suspect burnt seed, and claim to be able to identify it as marihuana, while drug labs say the sample was too small to test reliably. What are the minimum sample size and weight subject to accurate testing by police officer analysts?
  8. What oversight and testing of the local police agencies drug testing procedures and personnel will exist?
  9. Will each police agency using a Marihuana Analyst be equipped with a stereomicroscope to assist them in their testing?
  10. What chemicals are needed to conduct a test?
  11. What are the standards rates for error in such programs?

At a time when even large well funded crime labs are having problems in providing credible testing results of forensic evidence, this new program seems to be a step backwards, since there is no attempt to accredit the reliability of the work that will be generated by local police departments in the future.
A leading Louisville attorney who works closely with police agencies, sees the opportunity for abuse of this program by police officers.

“For anyone to articulate that officers would never forge documents for fellow officers one only has to look at the sad recent history in our state’s largest jurisdiction. You will recall that two police officers in Jefferson County were indicted and found guilty of forging Judge Matthew Eckerts’ signature on a number of search warrants. This is not ancient history but within the last 5 years. Given both the problems with the FBI lab and the sad history of some bad officers in Kentucky, this new program to make police officers their own testing agency is not a sound practice. “ 
Fred Zain was a chemist for the West Virginia police crime lab who testified in many cases about tests he never actually did. Tainting Evidence tells us about Fred Zain, Texas pathologist Ralph Erdmann, Mississippi forensic dentist Michael West,. FBI special Agent Thomas Curran, a serologist and others. These experts did such things as falsify evidence, faked autopsies, falsified toxicology and blood reports, did not have the claimed degrees, and committed perjury.
Laura Frank and John Hanchette in a July 19, 1994 story in Gannett News Service’s USA Today entitled “Convicted on False Evidence?: False Science Often Sways Juries, Judges” found 85 cases since 1974 in which prosecutors intentionally or unintentionally used tainted evidence. In the article Roy Taylor, a forensic pathology expert and attorney, said,” the public perception is that faking science is rare. The truth is it happens all the time.”

LawReader subscribers can view:
 course description .
course objectives for graduates.

Application of Daubert to Marihuana Analyist

Authorities re KRS 702

Expert Witness Testimony, admission

Blog Blacklister John R. Farris to Leave Finance Cabinet Post

Wednesday, July 11th, 2007

Farris was in charge of the Blog Blocking efforts of the Fletcher Administration

In shutting down state worker access to blogs critical of Fletcher.  Ryan Alessi in a Lexington Herald story Mar. 24, 2007, said that a former-Deputy Finance Sec. was told by  John Farris to take the Fifth Amendment when he was called to testify to the grand jury in the Merit System Investigation.


FRANKFORT, Ky. – Finance and Administration Cabinet Secretary John R. Farris announced today that he has submitted his resignation effective July 31, 2007.

“John has proven to be the embodiment of the phrase ‘Kentucky’s best and brightest.’ His extraordinary service to the Commonwealth and this administration has come at great cost to his young family and personal health,” said Governor Ernie Fletcher. “As Governor, I regret the loss his departure creates for the Commonwealth. As a father and physician, I completely understand and support his decision.”

Farris plans to take some personal time this summer to spend with his family, including his two-year-old daughter Addie and newborn daughter Julianna, before pursuing other career opportunities.

Farris has served as cabinet secretary since June 7, 2006. Prior to his appointment as secretary, he served as deputy secretary of the cabinet since Feb. 12, 2004. Before joining Kentucky state government, Farris worked as an economist at the World Bank, International Finance Corporation and the Research Triangle Institute. He graduated Phi Beta Kappa from Centre College in Danville with a double major in economics and philosophy and did his graduate work in economics and public policy at Princeton University. He holds a master’s degree in public affairs from the Woodrow Wilson School at Princeton.

“I am very grateful to Governor Fletcher and Secretary Rudolph for the confidence they have placed in me during my tenure as Finance Secretary,” said Sec. Farris. “It has been a demanding job, but it has been a great professional opportunity and learning experience for me.”

During Farris’ tenure as the Finance and Administration Cabinet’s secretary and deputy secretary, the cabinet achieved improved bond ratings and increased overall efficiencies, including the consolidation of state government information technology under the Commonwealth Office of Technology and the move of state vehicle fleet management to the cabinet. Under Farris’ leadership, the cabinet also worked with the legislature to strengthen Kentucky’s tax increment financing laws, which provide a mechanism for the financing of local economic development projects. 
Mike Burnside, deputy secretary for the Finance cabinet since Dec. 16, 2006, will become secretary on August 1, 2007.