Archive for May, 2008

User asks why we have deactivated our comments tool on the LawReader blog…

Saturday, May 31st, 2008
Thank you for your question about the comments tool being closed on the LawReader blog.
We previously had this feature activated, but it was continuously spammed by ads and other trash mail.
The software available to us does not permit us to limit the access to the comments section to valid users.  We were getting about 3,000 to 5,000 spam comments a month, and the valid user comments were buried.  We finally shut it down when comments reached some 275,000.
We were required to inspect and delete each comment by hand, and that was just a major expense for labor that we felt was best used elsewhere.
This does not mean however, that we do not welcome user comments to any story posted on LawReader or on legal related issues in general.   Just e-mail us your comments and we will be glad to post them on the blog.
We often get ideas for new stories and new features from our users, and we prize these suggestions highly.
So we are sorry that the comment tool is not activated, but we hope you will send your comments to us directly via e-mail. 
Stan Billingsley
Senior Editor, 

The parties in Fen Phen Trial

Saturday, May 31st, 2008

 Joseph “Jay” Bamberger: The judge
Joseph “Jay” Bamberger, 65
The Covington native was the only circuit judge in Boone and Gallatin counties for 12 years, during which time he presided over the $200 million fen-phen settlement.
He stepped down as circuit judge in December 2003 to become a senior judge, who travels around the state to relieve backlogged dockets. The move meant he would no longer preside over a priest-abuse case brought against the Covington Diocese in Boone Circuit Court. His decision to retire came as diocesan attorneys were attempting to have him disqualified because he was a close friend of the plaintiffs’ trial consultant, Mark Modlin.
Bamberger resigned as a senior judge in February 2006 to avoid being removed by Kentucky’s Judicial Conduct Commission, in part, for alleged misconduct in the fen-phen case. The commission’s order stated that Bamberger did not disclose his personal relationship with Modlin, who also was a consultant in the fen-phen case.
Bamberger is living in retirement in Burlington. His retirement benefits were reduced by about $3,665 a month – a 39.5 percent decrease – when he abruptly retired as senior judge. He receives an estimated $5,613 monthly for 22 years of public service.
Angela Ford: Plaintiffs’ new lawyer

 The Louisville native’s first contact with Cincinnati lawyer Stan Chesley involved the priest-abuse case against the Covington Diocese that he got certified as a class-action lawsuit.
Ford, who practices in Lexington, represented about two dozen people in central and eastern Kentucky in 2003 who claimed priests in the Covington Diocese abused them. Her clients opted out of the class action and pursued individual settlements that totaled in the millions of dollars. Chesley later accused the diocese of trying to settle as many sex-abuse claims as possible in a failed attempt to derail the class-action suit.
Ford then sued Chesley, Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. on behalf of about 400 people who were sickened by fen-phen. She claimed the four lawyers defrauded her clients out of more than half of a $200 million settlement with the diet-drug manufacturer.
She attended the University of Kentucky College of Law and Salmon P. Chase College of Law at Northern Kentucky University, where she received her law degree. She went on to serve on the state Council for Higher Education, the University of Louisville Board of Trustees and as general counsel for the Kentucky Cabinet for Human Resources.

Stan Chesley: Cincinnati lawyer

Stan Chesley, 71
The Indian Hill resident burst onto the national scene by representing victims of the Beverly Hills Supper Club fire that killed 165 people in May 1977 in Southgate. He has built a practice on class-action lawsuits, including fen-phen.
He is married to U.S. District Judge Susan Dlott. In September, the couple held a $2,300-per-person fund raiser at their French chateau-style home for Democrat presidential candidate Hillary Clinton. He previously has raised millions for other Democrats, including Bill Clinton.
Chesley received national attention by being the first lawyer in the United States to get a priest-abuse case certified as a class-action lawsuit. The judge in the case was Joseph “Jay” Bamberger, and the trial consultant was Mark Modlin.
Chesley has been named as a defendant in a civil case brought by victims of fen-phen. The suit alleges Chesley and fellow lawyers Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. defrauded them of millions of dollars. The portion of the civil case involving Chesley has been put on hold while the plaintiffs wait for a ruling from the Kentucky Court of Appeals on an issue in the case
William Gallion, 56
The Lexington lawyer built a practice defending the University of Kentucky hospital in malpractice cases before getting involved in the fen-phen litigation.
He now claims Sanibel, Fla., as his primary residence and dabbles in racehorses. He and Shirley Cunningham Jr. have a minority stake in Curlin, a favorite for Horse of the Year honors. A state judge has ruled that clients from the Kentucky fen-phen case have a claim to the 20 percent share of Curlin owned by Cunningham and Gallion to help cover a $42 million civil judgment entered against the two minority owners and Melbourne Mills Jr.
Gallion’s former law firm sued him over allegations that he did not share fees from the fen-phen case and others. An out-of-court settlement was reached. Gallion started his own firm.
Two bouncers at an adult nightclub entered pleas to harassment after Gallion accused them in February 2001 of injuring him as they kicked him out of the club.The bouncers claimed in court documents that Gallion and a friend did not pay for dancing with a pair of nude dancers.
Gallion has been locked up in the Boone County jail since Aug. 10. awaiting a Jan. 7 trial on conspiracy to commit wire fraud charges in connection with the fen-phen case. Federal prosecutors claim he received $30 million from the fen-phen settlement.
Melbourne Mills Jr., 76
His advertising made him one of the most recognizable faces in central Kentucky over the past three decades. His slogan to people in trouble with the law was simple: “Call the Man.”
Mills, who owns a vacation home in Hilton Head, S.C., has made other headlines, too. He paid $125,000 to settle a sexual harassment suit brought by a paralegal. She alleged in court records that Mills worked in his underwear and touched her.
Another former Mills employee also sued him. She claimed she was owed money for suggesting that her boss sue the maker of fen-phen with Shirley Cunningham Jr. and William Gallion. A Lexington jury ordered Mills to pay her $900,000, but a judge has since reversed the judgment. The case is under appeal.
Mills has been locked up in the Boone County jail since Aug. 10. awaiting a Jan. 7 trial on conspiracy to commit wire fraud charges in connection with the fen-phen case. Federal prosecutors allege his cut of the settlement was $24 million.
Shirley Cunningham Jr., 53
The Georgetown resident is a minority owner of Curlin, the winning horse in the $5 million Breeder’s Cup Classic on Oct. 27 in Oceanport, N.J.
Named after Cunningham’s great-grandfather, a slave who fought for the Confederate Army, Curlin was bought by Cunningham and William Gallion as a yearling for $57,000. The two lawyers later sold 80 percent interest in Curlin to San Francisco investment banker George Bolton and stables owned by the founder of Kendall-Jackson wines and a millionaire from Florida.
A state judge has since ruled that clients from the Kentucky fen-phen case have a claim to the 20 percent share of Curlin owned by Cunningham and Gallion. It will help cover a $42 million civil judgment that Judge William Wehr entered in Boone County Circuit Court against the two minority owners.
Cunningham also is embroiled in a controversy in Florida. He donated $1 million to Florida A&M University with some of the money from the fen-phen case, according to federal prosecutors. Auditors with the state of Florida claim Cunningham was then named to a $100,000-per-year endowed chair despite not doing any work for the university.
While no criminal charges were filed in Florida, federal prosecutors want to use evidence gathered during an investigation of the donation in a criminal case against Cunningham in U.S. District Court in Covington. Cunningham has been locked up in the Boone County jail since Aug. 10 awaiting a Jan. 7 trial on conspiracy to commit wire fraud charges in connection with the fen-phen case. Federal prosecutors say he paid himself $21 million from the fen-phen settlement.

CENTERVILLE, Ohio – Fen-phen victim Patricia Kennedy says lawyer Melbourne Mills Jr. had her drive from her home in northern Alabama to the Florence Mall in spring 2002 to pick up a settlement check from the maker of the diet drug that damaged her heart.
She did not even know if her 1989 Buick would make the eight-hour drive from Summerville, Ala., or if the settlement would even cover her gas, because workers in Mills’ office refused to talk about fen-phen over the phone.
Kennedy would not comment on what she received, but Boone Circuit Court records indicate she got $27,629.
Kennedy, one of 440 people who shared a $200 million settlement from fen-phen maker American Home Products, said she should have received more money.
“I guess I’m naive in a way,” said Kennedy, 59, who now lives in Centerville. “I always believed when you retained a lawyer, they are going to do what is right by you. I just assumed everything was OK.”
She is suing Mills and fellow lawyers Shirley Cunningham Jr., William Gallion and Stan Chesley in Boone Circuit Court.
Kennedy’s new lawyer, Angela Ford, claims in court documents that Kennedy should have received $67,428.03 more than what the lawyers gave her.
“I was shocked to hear what my lawyer claims I should have got,” Kennedy said. “I went around with my mouth wide open for days. I couldn’t sleep. That’s all I thought about.”
She said she did not initially question Mills’ character because her great-grandfather was Roscoe Vanover Sr., a legendary judge from Pike and Letcher counties in eastern Kentucky.
“I grew up holding lawyers in great esteem,” Kennedy said. “My great-grandfather must be rolling over in his gave with the antics that went on here.”
She compared the allegations that Mills and other lawyers in the fen-phen case took millions of dollars more from their clients’ settlement than they were entitled to a script to a legal thriller, one she said should be titled “Lawyers Gone Wild.”
“If I had gotten the full amount of money I was supposed to, my living circumstances would have improved,” Kennedy said. “This all happened when I was down on my luck.”
She said she moved in with her sister in Alabama in 2002 to save money after losing her job in Greater Cincinnati and having two back surgeries.
Kennedy wouldn’t discuss what health problem the drug caused other than to say she is under a doctor’s care.
“I really feel like I have been cheated – big time,” she said.
INDEPENDENCE – Workers in lawyer William Gallion’s office told Malanei Marro not to utter the word “fen-phen” over the telephone or talk about the settlement she received for a heart murmur the diet drug caused.
“It made you feel like your phone was tapped,” the 43-year-old Independence woman said. “I was told not to talk about the dollar amount of my settlement, either.”
Marro confirmed that she received two settlement checks totaling $26,326.49. The first came in summer 2001 followed by a second check the next spring.
“The sad part about it was it only covered my medical bills and maybe the outstanding balance on one credit card,” Marro said. She added that she now pays higher premiums for both health and life insurance because of the heart condition caused by fen-phen.
Her former lawyer, Gallion, and others are accused of defrauding Marro and 439 other fen-phen victims out of more than half a $200 million settlement reached with American Home Products, the manufacturer of fen-phen.
Many fen-phen victims are suing Gallion and fellow lawyers Melbourne Mills Jr., Shirley Cunningham Jr. and Stan Chesley, but not Marro. No one contacted her about joining the civil suit in Boone Circuit Court, and she didn’t know of the fraud allegations until contacted in October by a reporter.
“I think my heart murmur is coming back,” Marro said after hearing the news. She was diagnosed with heart valve damage after taking the drug, but added she hasn’t had any ongoing complications.
Court records filed on behalf of the fen-phen victims suing their former lawyers claim Marro should have received $95.057.03. That is $68.730.54 more than court records show she got.
“It is absolutely horrible they did this to so many people,” Marro said. “The fen-phen was bad enough. Then, you think someone is trying to help you and they screw you as well. That is just not right. It is not right at all.”
She said things “got weird” when it was time to disburse the settlement money.
Marro said she was told to drive to Gallion’s Lexington office to pick up the check.
Because she doesn’t drive on interstates, her husband had to take her. But then he wasn’t allowed into the lawyer’s office.
“They told me I couldn’t even tell my husband how much money I got,” she said. “How do you do that? I have a joint checking account. I’m married. Hello.”
Instead of feeling like a victor in a civil suit, Marro said she was made to feel like a victim – for the second time.
Marro said Gallion’s office employees told her she could be fined $5,000 or thrown in jail if she talked about the settlement. She said she signed a series of documents, including papers she believed were confidentiality agreements, but she now has no copies of the paperwork to confirm that.
“I couldn’t even tell my own mother,” she said. “It was kind of ridiculous. It was like they put the fear of God if you opened your month about anything.”
LAWRENCEBURG, Ky. – W.L. Carter said he was “shocked” when he went to his lawyer’s office in 2001 to collect his settlement for the heart damage he sustained after taking the diet drug fen-phen.
He recalled a desk and two metal folding chairs isolated in the middle of the gutted office suite in a downtown Lexington tower.
“The place looked like it had been looted,” the 54-year-old Lawrenceburg, Ky., resident said. “You could still see where carpet had been ripped off the floor.”
Then, he got his settlement check.
Although Carter will only say the check was much smaller than he expected, Boone Circuit Court records show he ultimately received $27,629 from the lawsuit.
Throughout the case, other things seemed unprofessional.
Before suing the drug maker, Carter had to sign a series of documents. He decided to drop off the documents at Melbourne Mills Jr.’s long-time office in Versailles, just west of Lexington. Mills answered the door wearing a T-shirt, flip flops and boxer briefs.
“That is the one and only time I met Melbourne Mills,” Carter said, “but that image is burned in my mind forever. He was ultra-casual that morning.”
Carter is now suing his former lawyer, Mills, claiming he and others kept the bulk of the $200 million settlement for themselves. The other defendants in the Boone Circuit Court case are lawyers Shirley Cunningham Jr., William Gallion and Stan Chesley.
Carter’s new lawyer, Angela Ford, alleges in court filings that Carter should have received $67,428.03 more, but he didn’t because the lawyers allegedly siphoned off millions of dollars more than they should have.
When Carter complained about the settlement, a woman in Mills’ office threatened to retaliate if he ever told anyone how much he received.
“You will be fined $100,000, you will go to jail and you will be sued,” Carter recalled the woman saying.
When Carter asked if he could tell his wife, the woman asked, “Can you trust her?” Carter said.
The question infuriated Carter. “If she had been a man,” he said, “I would have hit her in the mouth.”
Carter said he left the law office not mad at his attorney, but the maker of fen-phen who left him with heart valve damage. His lawyers had convinced him the drug maker insisted on the secrecy as part of the settlement.
He was so upset on his drive home that he pulled his car over and vomited alongside the road.
“It made me physically sick,” Carter said. He now walks nine miles a day, checks his blood pressure and heart rate several times a week and eats heart-friendly foods in hopes of mitigating any long-term damage done to his heart.
Timeline of Events
Mid-1997: Studies show fen-phen may damage heart valves. USDA urges patients to stop using it.

October 1997 – July 1998: Melbourne Mills Jr., William Gallion and Shirley Cunningham Jr. file separate lawsuits on behalf of hundreds of patients in Kentucky against American Home Products, the maker of fen-phen.

July 1999: Cincinnati lawyer Stan Chesley is negotiating a settlement with the drug maker to resolve national claims.

April 2000: National settlement approved.

May-November 2001: Circuit Judge Joseph Bamberger approves settlement of Kentucky case for $200 million. Amount not revealed in court records or to plaintiffs. Lawyers receive between $54 million and $10 million each.

February, 2002: Kentucky Bar Association investigates settlement.

April 2002: Lawyers give an additional $25 million to plaintiffs, who are asked to give permission to donate a small amount of remaining settlement to charity.

July 2002: Charitable foundation is created with $20 million. Gallion, Cunningham are paid trustees; Mills is later named a trustee.

December 2003: Judge Bamberger ends supervision of charity, retires and becomes senior judge.

July 2004: Judge Bamberger becomes a charity trustee and is paid $50,000 plus expenses.

December 2004: Angela Ford sues lawyers on behalf of their former clients.

February 2006: Bamberger resigns judgeship. He returns charity money.

March 2006: Gallion, Cunningham and Mills found to have breached their fiduciary duties.

August 2006: Kentucky Supreme Court temporarily suspends law licenses of Gallion, Cunningham and Mills.

June 14, 2007: Gallion, Cunningham and Mills indicted on federal fraud charges.

Jan. 7, 2008: Criminal trial set for Gallion, Cunningham and Mills.

Read a more extensive timeline
Online Documents
• Settlement agreement - The May 1, 2001, settlement agreement between fen-phen’s manufacture, and the lawyers representing the Kentucky plaintiffs.

• Bamberger ordersFive orders issued by Judge Joseph Bamberger while he presided over the original fen-phen case. The orders approve the settlement, approve attorney fees, authorize creation of the charity, appoint the charity’s directors and end court oversight of the charity.

• Judicial Conduct Commission - Kentucky Judicial Conduct Commission’s decision on Feb. 24, 2006, accepting Bamberger’s resignation and reprimanding him for his conduct.

• Judgment - Judge William Wehr’s finding on March 8, 2006, that Gallion, Cunningham and Mills “breached their fiduciary duty” to their clients in the fen-phen case.

• Indictment - The June 14, 2007 federal indictment of Gallion, Cunningham and Mills on charges of conspiracy to commit wire fraud.

• Bertelsman order - Order from U.S. District Judge William Bertelsman on Aug. 10, 2007, revoking bond for Gallion, Cunningham and Mills.

Witness told to destroy Fen Phen records – Mills hospitalized

Saturday, May 31st, 2008

Witness says she was told to destroy fen-phen documents 


By Andrew Wolfson Louisville Courier-Journal May 30, 2008 

One of the three lawyers charged with plundering Kentucky’s $200 million fen-phen settlement told a legal assistant to destroy documents showing how the clients were paid, according to the aide’s testimony today.

Instead, Rebecca Phipps said she locked the records in a cabinet and hid the key after attorney William Gallion told her “to get rid of the documents.”

Phipps, who worked for another defendant, attorney Melbourne Mills Jr., but later turned government witness, offered the most dramatic testimony yet in the U.S. District Court trial of Gallion, Mills and Shirley Cunningham Jr., who are each charged with conspiracy to commit fraud.

Phipps, who was spared prosecution in exchange for her testimony, said that Mills “laughed” when she told him about a plan Gallion came up with to pay the lawyers based on the maximum each client could have received, rather than the much smaller amounts they were actually paid.

“He was very pleased,” she said.

But she said Mills was furious when he found out in January 2002 that the settlement was for $50 million more than the $150 million that Gallion had told him.
“I walked in his house and he was sitting slumped with his elbows between his knees,” Phipps recalled. She said Mills, then 71, asked, ‘“Have you ever heard stories about the elderly being scammed?’”

“He was angry, and I was scared,” Phipps recalled.

The next week, she said, when Gallion began to sing “Happy Birthday” to Mills at a party, Mills “called him a thief and a liar and told him to leave,” Phipps recalled.
She said he Mills later twice told Gallion that the additional $50 million was “the clients’ money.”

She said Gallion then said he would talk to the presiding judge about making a second distribution of money to the clients.

Her testimony, portions of which had emerged previously in a lawsuit filed against the lawyers by their former clients, undercut the defendants’ claims that they paid out the additional money after various “contingent liabilities” failed to arise.

The direct examination of Phipps by the government was to continue this afternoon. She hasn’t been questioned yet by the defense.

The three defendant lawyers, who have been suspended from practice and already slapped with a $42 million civil judgment, could be sentenced to 20 years in prison if convicted. 


The trial of three lawyers charged with fraud in Kentucky’s fen-phen case was postponed until tomorrow after one of the defendants, Melbourne Mills Jr., was hospitalized early yesterday. 


By Andrew Wolfson Louisville Courier-Journal May 29, 2008

Mills, 77, was taken from the Boone County Jail to a hospital near Covington after he developed swelling in his ankles. He was to be examined by a cardiologist and held for observation. 

U.S. District Judge William Bertelsman ordered the jury to return tomorrow morning. He said he will decide then what to do if Mills is still in the hospital. 

Mills, Shirley Cunningham Jr. and William Gallion Jr. are charged with one count of conspiracy to commit wire fraud for allegedly defrauding clients out of $65 million in Kentucky’s $200 million settlement over heart injuries caused by the diet drug. The settlement was reached in 2001. 

They have pleaded not guilty, and their attorneys have said they had no criminal intent to commit fraud. They could each be sentenced to 20 years in prison if convicted. 

The trial is in its third week. 

Fen Phen Trial Update May 30 – May 31

Saturday, May 31st, 2008


     Key Diet Drug Witness Expected – Informat taped accused lawyers

By Andrew Wolfson  Louisville Courier-Journal  May 30, 2008
The government is expected to present what could be its star witness today in the federal fraud trial of three lawyers accused of plundering Kentucky’s $200million fen-phen settlement.

Rebecca Phipps, who worked for defendant Melbourne Mills Jr. but later turned government informant, is expected to testify about an alleged secret meeting where the defendants divvied up the money, then tore up or burned their notes, the prosecution has said.

Halfway into a trial that may last as long as six weeks, prosecutors already have elicited strong evidence from a pair of attorneys for the diet drug’s manufacturer.

Contradicting the core of the defense argument, the lawyers for the company told a U.S. District Court jury in Covington last week that there was no reason for the defendants to hold back tens of millions of dollars from their clients, as they have claimed they needed to do, in case additional claims arose.

Jack Vardaman and Helene Madonick, lawyers for American Home Products, now known as Wyeth, testified that the $200million settlement won by Shirley Cunningham Jr., William Gallion and Mills was strictly for their 440 clients.

Madonick noted that when as many as 100 additional claims arose in Kentucky after the settlement, the drug company paid them, not the lawyers.

“Did you come back and ask Mr. Gallion and his group to pay you some money to settle those cases?” Assistant U.S. Attorney E.J. Walbourn asked her.

“No,” she said. “I didn’t think there was any basis to do so.”

Vardaman and Madonick also insisted there was no requirement that the lawyers keep the settlement amount secret from their clients — and that they violated ethics rules in failing to disclose it.

`Unbridled greed’

The trial of Gallion, Mills and Cunningham, who are each charged with one count of conspiracy to commit wire fraud, was continued Wednesday after Mills, 77, was hospitalized for a condition that Senior U.S. District Judge William O. Bertelsman said isn’t life threatening. The defendants have been housed in Boone County Jail, unable to post bond.

The case is scheduled to resume today, when the government presents Phipps, who secretly taped the defendants for the government. The lawyers paid her more than $1million for her work on the case.

The prosecution has described the case as one of “unbridled greed” in which the three lawyers allegedly defrauded their clients by taking $65million more than set out in their contracts.

The defense has yet to present any witnesses, but defense lawyers said in opening statements that their clients had no criminal intent. They have tried to shift the blame to others, including Stan Chesley, a prominent Cincinnati mass torts lawyer who negotiated the settlement, and former Judge Joseph “Jay” Bamberger, who presided over the underlying case and approved the lawyers’ fees.

They also contended that once the fen-phen plaintiffs were fully compensated for the value of their claims, the excess money left over didn’t belong to them.

Walbourn and Mills’ lawyer, James Shuffett, said they couldn’t comment on the evidence, and lawyers for the other defendants didn’t respond to requests for comment.

Angela Ford, who represents more than 400 of the former fen-phen plaintiffs and is attending the trial as the official court-appointed victim representative, said her clients believe “the truth is coming out, but they are frustrated with the process.”

Defense did well early

According to court records and news accounts, the defense seemed to have its way during the first week of trial, when for three days defense lawyers cross-examined a prosecution witness — Gallion’s associate, David Helmers — who said that at the time, he didn’t think the defendants did anything wrong.

“You certainly didn’t think you were part of a criminal conspiracy in 2001, did you?” asked Cunningham’s co-counsel, Stephen Dobson.

“I didn’t think there was a criminal conspiracy,” said Helmers, who was paid a $3million bonus for his work.

But as the government began presenting alleged victims, the tide seemed to turn.

Connie Mason of Mason County testified that she was told by one of Mills’ employees to keep her $27,000 settlement secret, to tell anyone who asked that it was an inheritance, and to put the money in a safe at home because placing it in a bank might generate “too many questions.”

Tracy Curtis testified that she “smelled a rat” when the lawyers refused to give her documentation for her $25,000 payment and was suspicious even after they presented a letter from a mediator who falsely assured her American Home Products had designated that she get that amount.

Joyce Brown of Lexington, who suffered more severe injuries, said she was initially offered $250,000 and that only after she complained was that amount doubled. But according to a list of allocations attached to the settlement agreement, she should have been given $1.5million.

The defendants have kept that list out of evidence so far, arguing that its authorship is unclear, but it has been cited in court by the government.

Vardaman and Madonick testified that the clients deserved the amount allocated for them individually, rejecting the defendants’ claims that the dollar figure listed next to each client’s name represented only what would be repaid to the drug maker if they didn’t settle.

“So if Suzy Q was allocated a sum of money, that money was supposed to go to Suzy Q?” Walbourn asked Vardaman, who supervised settlement negotiation for American Home Products.

“Yes,” Vardaman said.

Judge `embarrassed’

Testifying over three days, Bamberger, the judge who approved the settlement, said he was “deeply embarrassed” by how he handled the case and never would have approved fees of 49 percent for the defendants had they told him that they had signed a contract with each defendant that called for them to get about one-third in fees.

He also said he was not told the Kentucky Bar Association had launched an investigation into the settlement before he approved the lawyers’ fees. Such investigations are confidential until a lawyer is found guilty.

“Would knowing that have affected how you handled this case?” Assistant U.S. Attorney Laura Voorhees asked Bamberger.

“Dramatically,” Bamberger said.

He also disclosed that he was reprimanded by the Judicial Conduct Commission for his actions in the case, prompting the defense lawyers to demand a mistrial on the grounds that the jury might conclude their clients did something wrong. Bertelsman denied the motion but admonished the jury not to consider the reprimand.

Through counsel, the defendants have claimed that Bamberger’s approval of the settlement and their fees shows they did not break the law. But Bertelsman has instructed the jury that Bamberger and the lawyers didn’t follow Kentucky rules for class-action suits.

Reporter Andrew Wolfson can be reached at (502) 582-7189.


Diet-drug case witness says lawyer wanted documents destroyed – Aide tells of request to destroy records
       By Andrew Wolfson -  Louisville Coureir-Journal  May 31, 2008
COVINGTON, Ky. — One of the three lawyers charged with plundering Kentucky’s $200 million fen-phen settlement told a legal assistant to destroy documents showing how the clients were paid, the aide told a federal jury yesterday.
Rebecca Phipps testified in U.S. District Court that she instead locked the records in a cabinet and hid the key after attorney William Gallion told her “to get rid of the documents.”
Phipps, who worked for another defendant, attorney Melbourne Mills Jr., but later turned government witness, offered the most dramatic testimony yet in the federal trial of Gallion, Mills and Shirley Cunningham Jr., who are charged with conspiracy to commit fraud.
Phipps, who was spared prosecution in exchange for her testimony, also said Mills “laughed” when she told him about a plan Gallion came up with to pay the lawyers based on the maximum each client could have received, rather than the much smaller amounts they were actually paid.
“He was very pleased,” she said.
But Mills was furious, Phipps said, when he found out in January 2002 that the settlement had been for $50 million more than the $150 million that Gallion had told him.
“He was upset, and I was scared,” she said.
Phipps testified that a week later, Mills, at a celebration of his birthday, called Gallion “a liar and a thief” and asked him to leave the party.
Phipps’ testimony ended the third week of a trial in which the three suspended lawyers are each charged with one count of conspiracy to commit wire fraud for allegedly defrauding clients out of $65 million from the 2001 accord.
On cross-examination by the defense, Phipps acknowledged that she was promised immunity from prosecution by the government and was not required to return $1.4 million in fees she was paid by the lawyers.
Questioned by Gallion’s lawyer, O. Hale Almand, Phipps also acknowledged that she had exaggerated her role in the case when she asked the presiding judge to put her on the board of a charitable fund to which $20 million in settlement funds were transferred.
Almand suggested that she lied so she could get $5,000 a month in director’s fees, as the lawyers were getting, but she said it was not about the money.
Phipps conceded on cross-examination by Mills’ counsel, James Shuffett, that Mills was drunk when he laughed at Gallion’s plan for increasing attorney fees.
Asked by Almand, she also acknowledged that Gallion told Mills the $150 million was a preliminary offer, and that Gallion might have told Mills later, when he was drunk, that the final figure was $200 million.
Phipps said Mills was drinking “around the clock” about the time the case was settled in May 2001 and only later was hospitalized and treated for alcoholism.
Mills, 77, was hospitalized this week for a possible heart condition but returned to the courtroom yesterday.
Testifying on direct examination yesterday morning, Phipps said that one of the defendant lawyers told her to settle cases with clients “for as low as possible” and that those with the most minor injuries, who could have gotten up to $95,000 each, instead were offered $15,000.
She said the lawyers told her they needed to preserve the $200 million settlement in case a national class action over the diet drug broke down and thousands of additional claims emerged. Lawyers for the company that made fen-phen have previously testified that wasn’t true.
Phipps’ testimony, portions of which emerged previously in a lawsuit filed against the lawyers by their former clients, further undercut the defendants’ claims that they paid out the additional money when various “contingent liabilities” failed to arise.
The three lawyers, who have been suspended from practice and slapped with a $42 million civil judgment, could be sentenced to 20 years in prison if convicted.
Questioned by defense counsel, Phipps yesterday denied that she ever told any of the clients that they could go to jail if they disclosed the terms of the settlement, as some of the plaintiffs previously testified.
She also acknowledged that even the lower amounts that the clients were paid were far more than they would have received under a national class-action settlement.
Also testifying yesterday was former client Katherine Hutchison, of Cynthiana, who said she was paid a total of $38,000.
While questioning her, Shuffett tried to suggest that as a plaintiff in the pending lawsuit against the lawyers, Hutchison is being greedy by seeking yet more money.
“We should have received more money to begin with,” Hutchison said. “Some people no longer with us today might still be here, if they had gotten the money they should have, when they should have.”
Testimony is to continue Monday in the trial, which could last another three weeks.



Friday, May 30th, 2008

By MATTHEW L. WALD  New York Times May 30, 2008

WASHINGTON — For years, scientists have had a straightforward idea for taming global warming. They want to take the carbon dioxide that spews from coal-burning power plants and pump it back into the ground.
President Bush is for it, and indeed has spent years talking up the virtues of “clean coal.” All three candidates to succeed him favor the approach. So do many other members of Congress. Coal companies are for it. Many environmentalists favor it. Utility executives are practically begging for the technology.

But it has become clear in recent months that the nation’s effort to develop the technique is lagging badly.

In January, the government canceled its support for what was supposed to be a showcase project, a plant at a carefully chosen site in Illinois where there was coal, access to the power grid, and soil underfoot that backers said could hold the carbon dioxide for eons.
Perhaps worse, in the last few months, utility projects in Florida, West Virginia, Ohio, Minnesota and Washington State that would have made it easier to capture carbon dioxide have all been canceled or thrown into regulatory limbo.

Coal is abundant and cheap, assuring that it will continue to be used. But the failure to start building, testing, tweaking and perfecting carbon capture and storage means that developing the technology may come too late to make coal compatible with limiting global warming.

“It’s a total mess,” said Daniel M. Kammen, director of the Renewable and Appropriate Energy Laboratory at the University of California, Berkeley.

“Coal’s had a tough year,” said John Lavelle, head of a business at General Electric that makes equipment for processing coal into a form from which carbon can be captured. Many of these projects were derailed by the short-term pressure of rising construction costs. But scientists say the result, unless the situation can be turned around, will be a long-term disaster.

Plans to combat global warming generally assume that continued use of coal for power plants is unavoidable for at least several decades. Therefore, starting as early as 2020, forecasters assume that carbon dioxide emitted by new power plants will have to be captured and stored underground, to cut down on the amount of global-warming gases in the atmosphere.

Yet, simple as the idea may sound, considerable research is still needed to be certain the technique would be safe, effective and affordable.

Scientists need to figure out which kinds of rock and soil formations are best at holding carbon dioxide. They need to be sure the gas will not bubble back to the surface. They need to find optimal designs for new power plants so as to cut costs. And some complex legal questions need to be resolved, such as who would be liable if such a project polluted the groundwater or caused other damage far from the power plant.

Major corporations sense the possibility of a profitable new business, and G.E. signed a partnership on Wednesday with Schlumberger, the oil field services company, to advance the technology of carbon capture and sequestration.

But only a handful of small projects survive, and the recent cancellations mean that most of this work has come to a halt, raising doubts that the technique can be ready any time in the next few decades. And without it, “we’re not going to have much of a chance for stabilizing the climate,” said John Thompson, who oversees work on the issue for the Clean Air Task Force, an environmental group.
The fear is that utilities, lacking proven chemical techniques for capturing carbon dioxide and proven methods for storing it underground by the billions of tons per year, will build the next generation of coal plants using existing technology. That would ensure that vast amounts of global warming gases would be pumped into the atmosphere for decades.

The highest-profile failure involved a project known as FutureGen, which President Bush himself announced in 2003: a utility consortium, with subsidies from the government, was going to build a plant in Mattoon, Ill., testing the most advanced techniques for converting coal to a gas, capturing pollutants, and burning the gas for power.

The carbon dioxide would have been compressed and pumped underground into deep soil layers. Monitoring devices would have tested whether any was escaping to the atmosphere. About $50 million has been spent on FutureGen, about $40 million in federal money and $10 million in private money, to draw up preliminary designs, find a site that had coal, electric transmission and suitable geology, and complete an Environmental Impact Statement, among other steps.
The Energy Challenge
A Coal Project Derailed
Articles in this series are examining the ways in which the world is, and is not, moving toward a more energy efficient, environmentally benign future.

But in January, the government pulled out after projected costs nearly doubled, to $1.8 billion. The government feared the costs would go even higher. A bipartisan effort is afoot on Capitol Hill to save FutureGen, but the project is on life support.

The government had to change its approach, said Clarence Albright Jr., the undersecretary of the Energy Department, to “limit taxpayer exposure to the escalating cost.”

Trying to recover, the Energy Department is trying to cut a deal with a utility that is already planning a new power plant. The government would offer subsidies to add a segment to the plant dedicated to capturing and injecting carbon dioxide, as long as the utility bore much of the risk of cost overruns.

It is unclear whether any utility will agree to such a deal. The power companies, in fact, have been busy pulling back from coal-burning power plants of all types, amid rising costs and political pressure. Utility executives say they do not know of a plant that would qualify for an Energy Department grant as the project is now structured.
Most worrisome to experts on global warming, the utilities have recently been canceling their commitments to a type of plant long seen as a helpful intermediate step toward cleaner coal.

In plants of this type, coal would be gasified and pollutants like mercury, sulfur and soot removed before burning. The plants would be highly efficient, and would therefore emit less carbon dioxide for a given volume of electricity produced, but they would not inject the carbon dioxide into the ground.

But the situation is not hopeless. One new gasification proposal survives in the United States, by Duke Energy for a plant in Edwardsport, Ind.

In Wisconsin, engineers are testing a method that may allow them to bolt machinery for capturing carbon dioxide onto the back of old-style power plants; Sweden, Australia and Denmark are planning similar tests. And German engineers are exploring another approach, one that involves burning coal in pure oxygen, which would produce a clean stream of exhaust gases that could be injected into the ground.
But no project is very far along, and it remains an open question whether techniques for capturing and storing carbon dioxide will be available by the time they are critically needed.

The Electric Power Research Institute, a utility consortium, estimated that it would take as long as 15 years to go from starting a pilot plant to proving the technology will work. The institute has set a goal of having large-scale tests completed by 2020.

“A year ago, that was an aggressive target,” said Steven R. Specker, the president of the institute. “A year has gone by, and now it’s a very aggressive target.”

Judge Steve Horner Traveling in Canada Gets Different Take on the reasons behind the War of 1812.

Friday, May 30th, 2008


Montreal – May 31, 2008


We are taught, of course, that the Brits – unhappy about losing their  American colonies 35 years earlier -  were trying to strangle them  economically by shutting down their trade, and thus we were again the innocent victim.
Canadians are taught that, with the aid of their British sovereign,  they were simply defending their homeland against US troops who got as   far inland as Toronto on the march to eradicate North Am of Brit   control, and that they were the innocent victim

Not All Prosecutors Sympathetic to Public Advocate Plans to Curtail Services

Thursday, May 29th, 2008

May 29, 2008 

(The following opinions are those of some prosecutors, and they do not necessarily express an opinion by LawReader.  We welcome informational reports from all parties to this or other legal issues.) 

LawReader received the following comment from a County Attorney who quotes other prosecutors.    

“I know we got a 3% cut across the board.  I think that generally too many people are appointed a public defender and this adds a strain on them but it is over done out of convenience.
Here are some of the prosecutor’s responses to the DPA news story about plans to curtail representation of misdemeanants, conflict cases,  and for competency hearings:
“We had a full blown hearing a couple of weeks ago about whether a guy deserved a public defender who lives in a $400,000 house with 90% of it mortgaged, and a house payment of about $3,000.  He claims that he is self-employed and not doing very well, but he drove a leased BMW into the lot, and his wife works for Proctor & Gamble in a fairly high up position.  Decision?  He’s entitled to a public defender.
Perhaps Mr. Lewis’ ultimatum will motivate the entire system to look at DPA’s constitutional role, how far they have exceeded it and how liberally public defenders are assigned.  Like Clint, on a daily basis I see defendant’s who are not even close to being indigent appointed a public defender.  It happens many times each day in every court in the state. 

DPA doesn’t need more money, they need to be restricted to their constitutional responsibility.  A glaring example of their exceeding their role, at great expense, is their recent foray into hiring social workers.  I defy anyone to explain to me how social work falls within DPA’s sphere of responsibility.

I think prosecutors as a whole need to be taking part in this discussion.  I know we have to be careful about attacking DPA because they are the darling of many people we must depend on for support, but I do think we can portray ourselves positively by pointing out that we suffered devastating cuts as well, but unlike DPA we will not abandon our post.(emphasis added)”


Thursday, May 29th, 2008

LawReader can save you a bundle.  Isn’t it about time you made a change to LawReader?


For Westlaw or Lexis and the Ky. Digest you will have to pay about  $5343* (and that only begins the bleeding of cash).


LawReader charges only $377.50 a year (or $34.95 a month for monthly subscribers)  and LawReader provides the same basic materials as WESTLAW or  LEXIS and the West Ky. Law Digest. 



With LawReader you also get Kentucky Revised Statutes annotated, a complete 50 state case law data base, weekly updates of Ky. Decisions w/ keywords and synopsis and full text, and over a thousand topics, plus thousands of legal forms.


The price of a monthly subscription to Westlaw is hard to confirm since they and Lexis make special deals to different firms, but the figure of $275* a month for one attorney is a figure our users report to us.  That is $3,300 per year for their case law data base alone. Law firms with more than one attorney pay much more.


To buy just the hardbound version of West’s Ky. Digest it will cost you:  $2,043.00  West’s® Kentucky Digest, 2d (1930-Date)  then you pay an arm and a leg for annual updates.  Then you must pay for a bookcase, and it takes up room in your office.


Or you can buy the West CD-ROM  version and agree to only allow one attorney to have access for  $1,152  – They charge more if  more than one attorney in your office uses this resource, and they charge extra for any updates needed in the future.


Oh yes, West adds this little extra:


“Subscription to this product requires a minimum one-year agreement. If you access content outside of your subscription plan, you will incur additional Westlaw Charges.”


In the Westlaw subscription plan you only get access to one state and if you access any other state, you pay extra.  LawReader provides all 50 states for no extra charge.


You can subscribe to LawReader for only one month.  With the annual LawReader subscription you get a 10% discount.  Westlaw and Lexis require from one to three year subscription contracts.


                            Let’s compare just to be sure you get the point:


  Monthly fee for Case Law Data Base Annual Fee for Case Law Data Base Fee for Digest of Ky. Law
LawReader $  34.95 $    377.50 No extra charge
Westlaw $275.00* $3,300.00 $2,043
Lexis $275.00* $3,300.00 Not available


Then consider that LawReader has no extra hidden charges, and Westlaw and Lexis are full of hidden charges and extra costs for additional users that in some cases exceeds their annual subscription fees.


*Pricing for West’s Ky. Law Digest are posted on their web site.  Pricing for Westlaw and Lexis is based on anecdotal fees users have reported to us.  They don’t charge everyone the same price.


Gov. Beshear Proposes Special Session for June 23rd. for Pension Reform Measures

Thursday, May 29th, 2008

May 29, 2008  


Will Save $500 Million Annually in Pension Costs and at Least $50 Million in Immediate Savings to City and County Governments and School Districts –  Creates Working Group to Address Remaining Issues

FRANKFORT, Ky. —Gov. Steve Beshear today called on legislators to agree on major pension reform issues in the next three weeks which will save taxpayers $500 million annually and city and county governments and school districts at least $50 million immediately. If such an agreement can be reached, the Governor said he would call a special legislative session to enact the reforms before June 30, the end of the current fiscal year.
“Democrats and Republicans, public employees and public employers, we all agree that the state’s public pension problem is a real mess,” said Gov. Beshear. “And, we all agree that the failure to pass meaningful pension reform during the last legislative session has made the problem worse. And, most significantly, we all agree that we must act now to stop the bleeding of taxpayer dollars.”
During the last session, the House and Senate passed separate bills, many provisions of which were strikingly similar. Key issues that remain in dispute are governance of the systems and consideration of new models for future benefits, issues that have not been fully vetted and did not receive any recommendation from former Governor Fletcher’s Blue Ribbon Commission.
Gov. Beshear’s staff compiled all of the provisions of the two pension bills from the 2008 session that used the same language or shared principles.
“The draft language represents issues where there is substantial agreement between both Houses,” said the Governor. “In addition, this draft contains the recommendations of Governor Fletcher’s Blue Ribbon Commission.
Those recommendations include:
*                     Raising retirement ages for future hires;
*                     Lowering the cost of living adjustment to 1.5 percent;
*                     Requiring new employees to contribute 1 percent of their salary to the health insurance fund; and
*                     Reforming the practice of double-dipping.
Gov. Beshear met with House and Senate leaders this morning to provide the draft language and urged them to reach agreement on these core components in the next three weeks. If they agree, he will call a special session the week of June 23 to take up this compromise bill.
“Agreement on these reforms will result in savings of nearly $500 million annually to state and local government obligations to fund the pension system,” said Gov. Beshear. “It will also provide city and county governments and school districts with at least $50 million in immediate savings starting July 1.”
Gov. Beshear also emphasized that the state will realize a record number of retirees this year, and a failure to reform the practice of “double dipping” could impose significant additional costs on the state.
“It’s time to set aside issues that divide us, to identify all of the significant things we agree on, and work together to come up with a partial, but substantial solution to the pension mess we are in,” said Gov. Beshear. “We all agree there is a problem. We agree the problem is getting worse. We agree the time is now. And we agree on the basic changes that need to be made. Let’s get it done, now

Poll says Lunsford leads McConnell by 5 points – McConnell cites poll gives him 11 point lead

Tuesday, May 27th, 2008

Jennifer A. Moore Chair, of the Kentucky Democratic Party released a newsletter on Tuesday which says that: 

 “a poll released this morning shows that Democratic United States Senate Candidate Bruce Lunsford is leading Mitch McConnell by five points. The poll, conducted May 22 reveals what Democrats throughout Kentucky already know, Mitch McConnell can and will be beaten this November.”

The Rasmussen Reports Poll consisted of a .telephone survey of 500 likely voters shows Lunsford at 49 percent and McConnell at 44 percent. The survey, which has a margin of error of plus or minus 4.5 percentage points, was conducted May 22.

Those results are starkly different from a Herald-Leader/WKYT Kentucky Poll taken before the May 20 primary, which showed McConnell leading Lunsford by 12 points in a hypothetical fall match-up.


McConnell’s campaign quickly released an internal polling memo showing him with an 11 point lead over Lunsford.

McConnell campaign manager Justin Brasell blasted the Rasmussen poll.

“This is an indicator of what we can expect for the next five months,” Brasell said in a statement. “National Journal refuses to print Rasmussen polls, yet Democrat leaders will trumpet bogus polls like this one in a futile effort to create a false sense of momentum for the hand-picked candidate of New York Senator Chuck Schumer and the DSCC.” 


Gov. Beshear issues Executive Order on Ethics to fulfill campaign pledge

Tuesday, May 27th, 2008

May 27, 2008
Executive Order Carries Out Campaign Pledge to Bring Integrity to Frankfort
FRANKFORT, KY – Despite the lack of action by the Kentucky General Assembly on proposed Ethics Reform legislation during the 2008 General Assembly, Gov. Steve Beshear today signed an Executive Order to strengthen the ethics policies governing the executive branch of state government.
“Neither I nor the people of Kentucky can wait another year to change the way state government does business,” said Gov. Beshear. “Therefore, I am exercising my power as Governor to strengthen Executive Branch Ethics in state government.”
One of the issues Gov. Beshear has already addressed is that of pardons issued by the Governor.
“I have already announced my policy to limit the Governor’s power to pardon. Contrary to the last four years, as long as I am Governor, the power to pardon will not be used to cover up illegal activities by anyone,” said the Governor.
The Executive Order closes loopholes in current ethics policies, making more consistent the ethical behavior of those under the executive branch.
In early January, Gov. Beshear announced that all major management personnel will be required to undergo mandatory ethics training. So far, more than 60 percent of those employees, including the Governor, have received that training. The Executive Order signed today solidifies that directive and puts forth a voluntary training program for all executive branch lobbyists as well.
The Executive Order also changes the process for appointing members to the Executive Branch Ethics Commission. Currently, the Governor appoints all five members. Under the order signed today, the appointments will occur in the following manner:
*                     A three-phase rotating schedule to allow input into appointments from other Constitutional office holders with investigative and law enforcement powers;
*                     The first vacancy is filled by the Governor, the second is filled by the Governor from a list of three nominees submitted by the Attorney General;
*                     The third vacancy is filled by the Governor from a list of three nominees submitted by the state Auditor of Public Accounts.
Further, once the reorganization of the Finance and Administration Cabinet is completed in the near future, the Executive Branch Ethics Commission will be attached to that Cabinet, rather than the Governor’s Office, in order to remove the appearance of undue influence by the Governor.
Other items in the Executive Order include:
*                     Employees will be forbidden from negotiating for a future job with a person or company with which he or she is directly involved as part of their official duties;
*                     Legal Defense Funds will have to be registered with the Executive Branch Ethics Commission; donations from those who do business with the state will not be allowed and quarterly reports will be filed with the Commission.
*                     Members of about 74 policy-making and regulatory boards will be subject to ethical guidelines governing gifts and conflicts of interest.
“These changes will strengthen the integrity of state government,” said Gov. Beshear. “Kentucky cannot and will not move forward in a significant way until we change how state government does business. The people are demanding and deserve ethical and moral leadership. And I am determined to give it to them.”

Governor Beshear Signs Order on Executive Branch Ethics

Tuesday, May 27th, 2008

May 27, 2008
Executive Order Carries Out Campaign Pledge to Bring Integrity to Frankfort
FRANKFORT, KY – Despite the lack of action by the Kentucky General Assembly on proposed Ethics Reform legislation during the 2008 General Assembly, Gov. Steve Beshear today signed an Executive Order to strengthen the ethics policies governing the executive branch of state government.
“Neither I nor the people of Kentucky can wait another year to change the way state government does business,” said Gov. Beshear. “Therefore, I am exercising my power as Governor to strengthen Executive Branch Ethics in state government.”
One of the issues Gov. Beshear has already addressed is that of pardons issued by the Governor.
“I have already announced my policy to limit the Governor’s power to pardon. Contrary to the last four years, as long as I am Governor, the power to pardon will not be used to cover up illegal activities by anyone,” said the Governor.
The Executive Order closes loopholes in current ethics policies, making more consistent the ethical behavior of those under the executive branch.
In early January, Gov. Beshear announced that all major management personnel will be required to undergo mandatory ethics training. So far, more than 60 percent of those employees, including the Governor, have received that training. The Executive Order signed today solidifies that directive and puts forth a voluntary training program for all executive branch lobbyists as well.
The Executive Order also changes the process for appointing members to the Executive Branch Ethics Commission. Currently, the Governor appoints all five members. Under the order signed today, the appointments will occur in the following manner:
*                     A three-phase rotating schedule to allow input into appointments from other Constitutional office holders with investigative and law enforcement powers;
*                     The first vacancy is filled by the Governor, the second is filled by the Governor from a list of three nominees submitted by the Attorney General;
*                     The third vacancy is filled by the Governor from a list of three nominees submitted by the state Auditor of Public Accounts.
Further, once the reorganization of the Finance and Administration Cabinet is completed in the near future, the Executive Branch Ethics Commission will be attached to that Cabinet, rather than the Governor’s Office, in order to remove the appearance of undue influence by the Governor.
Other items in the Executive Order include:
*                     Employees will be forbidden from negotiating for a future job with a person or company with which he or she is directly involved as part of their official duties;
*                     Legal Defense Funds will have to be registered with the Executive Branch Ethics Commission; donations from those who do business with the state will not be allowed and quarterly reports will be filed with the Commission.
*                     Members of about 74 policy-making and regulatory boards will be subject to ethical guidelines governing gifts and conflicts of interest.
“These changes will strengthen the integrity of state government,” said Gov. Beshear. “Kentucky cannot and will not move forward in a significant way until we change how state government does business. The people are demanding and deserve ethical and moral leadership. And I am determined to give it to them.”

U.S. Sup. Court OKs suits on retaliation in race cases

Tuesday, May 27th, 2008


WASHINGTON (AP) — The Supreme Court ruled Tuesday that workers who face retaliation after complaining about race discrimination may sue their employers under a Civil War-era law.
The court said in a 7-2 ruling that retaliation is another form of intentional, unlawful discrimination that is barred by the Civil Rights Act of 1866. It was enacted to benefit newly freed blacks.
Business groups objected that the law does not expressly prohibit retaliation and said employees should have to file suit under another law, Title VII of the Civil Rights Act of 1964. That law has a shorter deadline for filing suit and caps the amount of money that a successful plaintiff may recover.
The Bush administration was on the side of the workers.
The provision of the 1866 law, known as section 1981, does not explicitly mention retaliation.
But Justice Stephen Breyer, in his majority opinion, said that previous Supreme Court decisions and congressional action make clear that retaliation is covered.
Justices Antonin Scalia and Clarence Thomas dissented.
The case grew out of the firing of a black associate manager at a Cracker Barrel restaurant in Bradley, Ill. Hedrick Humphries claimed he was fired after he complained about race discrimination by other Cracker Barrel supervisors.
Humphries filed a lawsuit claiming both discrimination and retaliation. Both claims were dismissed by a federal judge and only the retaliation claim was appealed.
The Chicago-based 7th U.S. Circuit Court of Appeals said Humphries could pursue his retaliation claim under section 1981. The high court upheld the appeals court ruling.
See Syllabus:


No. 06–1431. Argued February 20, 2008—Decided May 27, 2008
Claiming that petitioner CBOCS West, Inc., dismissed him because he is black and because he complained to managers that a black co­employee was also dismissed for race-based reasons, respondent Humphries filed suit charging that CBOCS’ actions violated both Ti­tle VII of the Civil Rights Act of 1964 and 42 U. S. C. §1981, the lat­ter of which gives “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The District Court dismissed the Title VII claims for failure to timely pay filingfees and granted CBOCS summary judgment on the §1981 claims.The Seventh Circuit affirmed on the direct discrimination claim, but remanded for a trial on Humphries’ §1981 retaliation claim, rejectingCBOCS’ argument that §1981 did not encompass such a claim.
Held: Section 1981 encompasses retaliation claims. Pp. 2–14.
(a) Because this conclusion rests in significant part upon stare de­cisis principles, the Court examines the pertinent interpretive his­tory. (1) In 1969, Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 237, as later interpreted and relied on by Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 176, recognized that retaliation actions are en­compassed by 42 U. S. C. §1982, which provides that “[a]ll citizens . . . shall have the same right, . . . , as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personalproperty.” (2) This Court has long interpreted §§1981 and 1982 alikebecause they were enacted together, have common language, andserve the same purpose of providing black citizens the same legalrights as enjoyed by other citizens. See, e.g., Runyon v. McCrary, 427
U. S. 160, 183, 197, 190. (3) In 1989, Patterson v. McLean Credit Un­ion, 491 U. S. 164, 177, without mention of retaliation, narrowed §1981 by excluding from its scope conduct occurring after formation
of the employment contract, where retaliation would most likely befound. Subsequently, Congress enacted the Civil Rights Act of 1991,which was designed to supersede Patterson, see Jones v. R. R. Don­nelley & Sons Co., 541 U. S. 369, 383, by explicitly defining §1981’sscope to include post-contract-formation conduct, §1981(b). (4) Since 1991, the Federal Courts of Appeals have uniformly interpreted §1981 as encompassing retaliation actions. Sullivan, as interpreted by Jackson, as well as a long line of related cases where the Court construes §§1981 and 1982 similarly, lead to the conclusion that theview that §1981 encompasses retaliation claims is well embedded inthe law. Stare decisis considerations strongly support the Court’s adherence to that view. Such considerations impose a considerableburden on those who would seek a different interpretation that wouldnecessarily unsettle many Court precedents. Pp. 2–8.
(b) CBOCS’ several arguments, taken separately or together, can­not justify a departure from this well-embedded interpretation of§1981. First, while CBOCS is correct that §1981’s plain text does notexpressly refer to retaliation, that alone is not sufficient to carry theday, given this Court’s long recognition that §1982 provides protec­tion against retaliation; Jackson’s recent holding that Title IX of theEducation Amendments of 1972 includes an antiretaliation remedy,despite Title IX’s failure to use the word “retaliation,” 544 U. S., at 173–174, 176; and Sullivan’s refusal to embrace a similar argument, see 396 U. S., at 241. Second, contrary to CBOCS’ assertion, Con­gress’ failure to include an explicit antiretaliation provision in its1991 amendment of §1981 does not demonstrate an intention not tocover retaliation, but is more plausibly explained by the fact that,given Sullivan and the new statutory language nullifying Patterson, there was no need to include explicit retaliation language. Third, the argument that applying §1981 to employment-related retaliation ac­tions would create an overlap with Title VII, allegedly allowing a re­taliation plaintiff to circumvent Title VII’s detailed administrativeand procedural mechanisms and thereby undermine their effective­ness, proves too much. Precisely the same kind of Title VII/§1981 “overlap” and potential circumvention exists in respect to employ­ment-related direct discrimination, yet Congress explicitly and inten­tionally created that overlap, Alexander v. Gardner-Denver Co., 415
U. S. 36, 48–49. Fourth, contrary to its arguments, CBOCS cannot find support in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 63, and Domino’s Pizza, Inc. v. McDonald, 546 U. S. 470. While Bur­lington distinguished discrimination based on status (e.g., as women or black persons) from discrimination based on conduct (e.g., whistle-blowing that leads to retaliation), it did not suggest that Congressmust separate the two in all events. Moreover, while Domino’s Pizza
language than did Sullivan, any arguable change in interpretive ap­proach would not justify reexamination of well-established prior law under stare decisis principles. Pp. 9–14.
474 F. 3d 387, affirmed.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Fen Phen trial testimony may be clearing name of Judge Bamberger

Tuesday, May 27th, 2008

By LawReader Senior Editor Stan Billingsley    May 27, 2008

The Government has introduced evidence from the Fen Phen trial Judge Joseph Bamberger for over 20 hours, with more questioning to continue. The cross examination by the defense has not yet commenced.

The Government is demonstrating through the testimony of Judge Bamberger, that he made numerous orders concerning elements of the class action, and that the defendant attorneys lied to the court on significant issues.

Federal Judge Bertlesman has limited each side to 57 hours of testimony, and the use of Judge Bamberger for 20 hours (so far) indicates the importance of his testimony to the case.

This trial so far has presented quite a different picture about Judge Bamberger than the one painted by the Angela Ford, the current Fen Phen plaintiff’s lawyer, in her many press disclosures (which appear to have violated Judge Wehr’s gag order).  The Government so far has presented a case which shows the lying and improper conduct came not from a Judge in Boone County but from Lawyers from Fayette County.

This trial raises the question that everyone who has been so eager to condemn Judge Bamberger of complicity should consider.  If Bamberger was complicit in the hiding of fees the original plaintiff’s lawyers paid themselves, why did they find it necessary to repeatedly lie to him?Example:  They did not mail out the required settlement notice, after obtaining approval from the court on the wording of the notice. (??)

Every judge should consider how correct their decisions would be if the attorneys were constantly lying to them about what was being done.  It is very easy to look back in hindsight and say you would have done something differently…it is quite another to actually be in the hot seat and make calls based on the information given to you.

The Judicial Conduct Commission sanctioned Judge Bamberger for a decision he made six months after he left office.  He violated what they considered an “appearance of impropriety”.   The Rules of Judicial Conduct clearly say that even a sitting judge may serve on the Board of a charitable trust.

Bamberger agreed, to his often expressed everlasting regret, to serve on the Charitable Trust six months after he retired and had no control over the case.  Another fact that should bother the bar is that during the class action proceedings, and before final fee orders and settlement were approved by Judge Bamberger, the Kentucky Bar Association received complaints about the conduct of Attorney William Gallion in the case, and they never gave the trial judge a head’s up.  No one gave him any warning that something might be wrong about to occur.

How informed would your decisions be if the people before you were lying, and everyone who claimed to know of misdeeds by the attorneys didn’t share that information with you?

We imagine that the defense will try to lay the blame on Judge Bamberger when they cross-examine him if they choose to do so.  They will have great difficulty in accomplished this shell game since the video tapes of all of Judge Bamberger’s hearings are available and show how they mislead the court on numerous issues.  How can they sell the defense that they fed the judge false information, but then relied on his decisions for guidance?  There is an old computer term which applies here, it is called in shorthand GI-GO.  (Garbage in –garbage out.)

The Cincinnati Enquirer reported:

Former Boone Circuit Judge Joseph “Jay” Bamberger stepped down from the stand Tuesday after three days of testimony in the federal trial of three lawyers charged with defrauding their clients out of $65 million. 

Bamberger presided over a class-action settlement of $200 million for 440 people who experienced heart damage after taking the now banned diet drug fen-phen. 

The defendants – Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. – took $65 million in legal fees that they were not entitled to, according to federal prosecutors. If convicted of conspiracy to commit wire fraud, the lawyers could get up to 20 years in prison and be forced to pay millions of dollars in restitution. 

They already have a $45 million civil judgment levied against them in state court for the handling of the fen-phen settlement. Authorities said Cunningham and Gallion used the ill-gotten gains to purchase the racehorse Curlin, last year’s Preakness winner and Horse of the Year. 

The lawyers’ defense, in part, is that Bamberger approved of them taking $125 million in fees and expenses from the settlement. 

Bamberger testified that he never would have approved the fees had the defendants told him the truth – that they had signed a contract with each defendant that called for about one-third of the settlement for legal fees. 

Bamberger said he also was not told the Kentucky Bar Association had launched an investigation into the settlement and had subpoenaed records when he approved the lawyers’ fees. 

Prosecutors contend Bamberger had no legal authority to approve the legal fees, and U.S. District Judge William Bertelsman said Bamberger clearly did not follow Kentucky’s guideline for conducting a class-action suit. 

Bamberger resigned in February 2006 rather than face the possibility of being removed from the bench for mishandling of the class-action case. 

Bamberger said he followed the advice of Gallion, the other defendants and class-action expert Stan Chesley of Cincinnati when making decisions in how to proceed with the fen-phen suit. 


New Scrutiny for Organizations Claiming Charitable Tax Status

Monday, May 26th, 2008

 Exemptions for Charities Face New Challenges

By STEPHANIE STROM  New York Times   May 26, 2008


RED WING, Minn. — Authorities from the local tax assessor to members of Congress are increasingly challenging the tax-exempt status of nonprofit institutions — ranging from small group homes to wealthy universities — questioning whether they deserve special treatment.

One issue is the growing confusion over what constitutes a charity at a time when nonprofit groups look more like businesses, charging fees and selling products and services to raise money, and state and local governments are under financial pressure because of lower tax revenues.

And there are others: Does a nonprofit hospital give enough charity care to earn a tax exemption? Is a wealthy university providing enough financial aid?

In a ruling last December that sent tremors through the not-for-profit world, the Minnesota Supreme Court said a small nonprofit day care agency here had to pay property taxes because, in essence, it gave nothing away.

The agency, the Under the Rainbow Child Care Center, charges the same price per child regardless of whether their parents are able to pay the full amount themselves or they receive government support to cover the cost.

“We were shocked,” said Michelle Finholdt, who founded the center in 1994 and scraped together the money to buy a building in 2002. “There are a lot of other organizations in our area that we’re similar to, and they are exempt from property taxes.”

The tax-exempt status of charities costs local governments $8 billion to $13 billion annually, according to various rough estimates.

And local assessors are not the only government officials scratching their heads over which groups deserve privileged tax status. Congress has threatened to impose a requirement that wealthy universities make minimum payouts from their endowments and raised questions about whether nonprofit hospitals are really all that different from their for-profit — and tax-paying — competitors.

And, concerned about the way some churches are spending money, the Senate Finance Committee has asked for detailed financial information from six evangelical ministries asking them to justify their tax exemptions.

Others are questioning whether some tax-exempt nonprofits, primarily universities and hospitals, have accumulated so much wealth that they should no longer be considered charities. In Massachusetts, where Harvard’s endowment has reached $35 billion in assets, legislators are weighing whether to impose a 2.5 percent annual assessment on universities with endowments of more than $1 billion.

The idea behind tax exemptions is that the organizations provide a public service or substantially reduce the burdens of government. Standards from property-tax exemptions are set by the states, while the federal exemption means charities are not taxed on their income.

Almost 88 percent of overall nonprofit revenues in 2005, the most recent year for which figures are available, came from fees for services, sales and sources other than charitable contributions, according to the National Center for Charitable Statistics. Nonprofit health care providers, day care centers and retirement homes, among others, are often difficult to distinguish from their tax-paying competitors.

“We’re all seeing the growth of revenue in this area we call earned income,” said Audrey R. Alvarado, executive director of the National Council of Nonprofit Associations, adding that the Minnesota court decision “is saying, ‘Wait a minute, charities are supposed to give things away for free.’ ”

“It goes to the core of how nonprofits are classified and defined,” she said, “and I think it is an example of the confusion in the public, and even among folks in the sector itself, about what a nonprofit is.”

Evelyn Brody, a professor at Chicago-Kent College of Law and an expert on nonprofits and property taxes, said that, in studying the issue in 2002 and revisiting it last year, she had seen an explosion of cases across the country in which charities were challenged to say why they deserve their property tax exemptions.

As universities charge high tuitions, and pay large salaries to administrators, they have become prime targets. For example, New London, Conn., assessed property taxes on a skating rink owned by Connecticut College. Local assessors tried to tax Smith College in Northampton, Mass., arguing that the women’s college engaged in sex discrimination and thus was not charitable.

Smaller organizations that provide services like day care or drug treatment are being challenged, too. The Oregon tax court denied property tax exemption to a residential substance-abuse treatment center because it catered to “addicted professionals” and, like Under the Rainbow, did not give away its services.

The Minnesota Department of Revenue and county tax assessors say the uproar over the court ruling here has surprised them.

From the assessors’ standpoint, the Under the Rainbow ruling didn’t change anything for us,” said Thomas J. May, the tax assessor for Hennepin County and a spokesman for the state’s assessors.

In determining which organizations qualify for exemption, assessors in Minnesota rely on the State Constitution, which explicitly exempts things like public burial grounds, seminaries and colleges and universities from taxation, and on six criteria set out in a 1975 State Supreme Court decision.

Mr. May said that the determination process had become increasingly difficult, however, noting that the Mall of America, a major tourist attraction, was seeking tax exemptions as part of its plans to expand, arguing that it aids the state economy by drawing visitors.

“From our perspective in the assessment field, it’s harder to define what’s a nonprofit these days because there are so many different types, and many of them are doing the same thing for-profit groups that aren’t exempt are doing,” he said.

Some 95 percent of Under the Rainbow’s $550,582 budget in 2006 came from fees for services paid by families or by county and tribal governments. The court concluded that because the center charged all families the same amount, regardless of their ability to pay, and because its rates were not lower than those of its competitors, it was not an institution of “purely public charity” under the law and thus was subject to thousands of dollars in property taxes — $16,000 in 2006 and in 2007.

“The extent to which the recipients of the charity are required to pay for the assistance received tests for a value that is fundamental to the concept of charity — that is, whether the organization gives away anything,” Chief Justice Russell A. Anderson wrote in the decision.

Additionally, the court ruled that government payments were not evidence of charity — those payments were not a gift.

These two elements of the ruling have profoundly alarmed nonprofit groups in Minnesota and elsewhere.

“There are between 300 and 500 nonprofit groups in this state that could lose their property tax exemptions under that ruling,” said Jon Pratt, executive director of the Minnesota Council of Nonprofits, which represents about 2,000 of the state’s roughly 3,400 charities.

RSI Inc. in Duluth is among those at risk, said Jon Nelson, its executive director. The organization was founded 30 years ago by parents of mentally disabled children when the state closed the last of its homes for the disabled.

More than 93 percent of its $11 million budget this year will come from government, and 6 percent will come from clients. “For-profit businesses aren’t going to take on these clients, and the state long ago recognized that as a nonprofit, we could provide better care at a lower cost than it could,” Mr. Nelson said.

“This court ruling is just ripe with unintended consequences,” he said. “The state is cutting off its nose to spite its face.” RSI owns real estate valued at $5.5 million and would pay an estimated $110,000 in property taxes if it lost its exemption.

“The nonprofit sector is being pressed to be more business-like and to find new ways to fill the gaps between what government will pay and what services cost, but then assessors want to treat us like businesses, which pay taxes,” said Jan Malcolm, chief executive of the Courage Center in Minneapolis and a former state health commissioner.

The Courage Center, which provides services and facilities for physically disabled people, estimates that a change in its tax exemption would cost it $1.7 million — $1.4 million in property taxes and $300,000 in sales taxes, which are linked to payment of property taxes in Minnesota.

That, Ms. Malcolm said, would force the center to cut programs and services.

This month, the Minnesota Legislature passed a tax bill that establishes a one-year ban on reversing property tax exemptions held by existing nonprofits.

The bill requires legislators to set criteria to define what is “purely public charity,” a phrase included in many state statutes on charitable property tax exemption, in an era of nonprofit groups that charge for their services and receive only negligible amounts of donations.

“We need to figure out what we mean by ‘purely public charity’ because, frankly, we can’t afford as a state to lose nonprofits providing these kinds of services,” said State Representative Paul Marquart, chairman of the property tax subcommittee. “But it isn’t going to be easy.”


MEMORIAL DAY THOUGHTS – see how many war deaths we should honor

Sunday, May 25th, 2008

A few years ago, while eating lunch in Bruge, Belgium, I struck up a conversation with an elderly couple  from London, England. The wife asked me, “was their much fighting in WWI around here.”

I told her that every flower in the nearby fields was fertilized with English blood.  We weren’t far from Flanders field.  Gwen found this famous poem. (below)

When visiting with some fiends in Bridgnorth, Enland I noticed and old family picture on the wall.  Which had a group of about 25 people.  As I recall our host told us all of the men in the picture (about l5) but two, had been killed in WWI.

World War I (much more so than WWII) had a devastating affect on the English as well as other nations.

Perhaps this is a good time to review how many deaths have been caused by war in modern history.

WWI casualties:

Entente Powers
Population Millions
Military Deaths
Civilian Deaths
Total Deaths
Military Wounded
 Australia[1] 4.5 61,928 61,928 152,171
 Belgium[2] 7.4 42,987 62,000 104,987 44,686
 Canada[3] 7.2 64,944 2,000 66,944 149,732
 France[4] 39.6 1,397,800 300,000 1,697,800 4,266,000
 Greece[5] 4.8 26,000 150,000 176,000 21,000
 British Raj[6] 315.1 74,187 74,187 69,214
 Italy[7] 35.6 651,010 589,000 1,240,010 953,886
 Japan[8] 53.6 415 415 907
 Montenegro[9] .5 3,000 3,000 10,000
 New Zealand[10] 1.1 18,050 18,050 41,317
 Newfoundland[11] .2 1,204 1,204 2,314
 Portugal[12] 6.0 7,222 82,000 89,222 13,751
 Romania[13] 7.5 250,000 430,000 680,000 120,000
 Russian Empire[14] 158.9 1,811,000 1,500,000 3,311,000 4,950,000
 Kingdom of Serbia[15] 4.5 275,000 450,000 725,000 133,148
 South Africa[16] 6.0 9,463 9,463 12,029
 United Kingdom[17] 45.4 885,138 109,000 994,138 1,663,435
 United States[18] 92.0 116,708 757 117,465 205,690
Total (Entente Powers) 789.9 5,696,056 3,674,757 10,353,813 12,809,280
Central Powers
Population Millions
Military Deaths
Civilian Deaths
Total Deaths
Military Wounded
 Austria-Hungary[19] 51.4 1,100,000 467,000 1,567,000 3,620,000
 Bulgaria[20] 5.5 87,500 100,000 187,500 152,390
 German Empire[21] 64.9 2,036,897 426,000 2,462,897 4,247,143
 Ottoman Empire[22] 21.3 800,000 4,200,000 5,000,000 400,000
Total (Central Powers) 143.1 4,024,397 5,191,000 9,415,397 8,419,533
Neutral nations
 Denmark[23] 2.7 722 722
 Norway[24] 2.4 - 1,892 1,892
 Sweden[25] 5.6 - 877 877
Grand Total 941.0 9,720,453 8,869,248 19,772,701 21,228,813

Human Losses of World War Two by Country
Population 1939  
Military deaths  
Civilian deaths  
Jewish Holocaust deaths  
Total deaths  
Deaths as % of 1939 population  
 Albania[1] 1,073,000 28,000 200 28,200 2.63%
 Australia[2] 6,998,000 39,400 700 40,100 0.57%
 Austria[3] 6,653,000 40,500 65,000 105,500 1.59%
 Belgium[4] 8,387,000 12,100 49,600 24,400 86,100 1.02%
 Brazil[5] 40,289,000 1,000 1,000 2,000 0.00%
 Bulgaria[6] 6,458,000 22,000 3,000 25,000 0.38%
 Burma[7] 16,119,000 22,000 250,000 272,000 1.16%
 Canada[8] 11,267,000 45,300 45,300 0.40%
 Republic of China[9] 517,568,000 3,800,000 16,200,000 20,000,000 3.86%
 Cuba[10] 4,235,000 100 100 0.00%
 Czechoslovakia[11] 15,300,000 25,000 43,000 277,000 345,000 2.25%
 Denmark[12] 3,795,000 2,100 1,000 100 3,200 0.08%
 Estonia[13] 1,134,000 40,000 1,000 41,000 3.62%
 Ethiopia[14] 17,700,000 5,000 95,000 100,000 0.6%
 Finland[15] 3,700,000 95,000 2,000 97,000 2.62%
 France[16] 41,700,000 217,600 267,000 83,000 567,600 1.35%
 French Indochina[17] 24,600,000 1,000,000 1,000,000 4.07%
 Nazi Germany[18][19][20][21] 69,623,000 5,533,000 1,600,000 160,000 7,293,000 10.47%
 Greece[22] 7,222,000 20,000 220,000 71,300 311,300 4.31%
 Hungary[23] 9,129,000 300,000 80,000 200,000 580,000 6.35%
 Iceland[24] 119,000 200 200 0.17%
 British Raj[25] 378,000,000 87,000 1,500,000 1,587,000 0.42%
 Dutch East Indies[26] 69,435,000 4,000,000 4,000,000 5.76%
 Iran[27] 14,340,000 200 200 0.00%
 Iraq[28] 3,698,000 1,000 1,000 0.03%
 Ireland[29] 2,960,000 200 200 0.00%
 Italy[30] 44,394,000 301,400 145,100 8,000 454,500 1.02%
 Japan[31] 71,380,000 2,120,000 580,000 2,700,000 3.78%
 Korea[32] 23,400,000 378,000 378,000 1.6%
 Latvia[33] 1,995,000 147,000 80,000 227,000 11.38%
 Lithuania[34] 2,575,000 212,000 141,000 353,000 13.71%
 Luxembourg[35] 295,000 1,300 700 2,000 0.68%
 Malaya[36] 4,391,000 100,000 100,000 2.28%
 Malta[37] 269,000 1,500 1,500 0.56%
 Mexico[38] 19,320,000 100 100 0.00%
 Mongolia[39] 819,000 300 300 0.04%
 Netherlands[40] 8,729,000 15,800 124,500 106,000 246,300 2.82%
 Newfoundland[41] 300,000 1,000 100 1,100 0.37%
 New Zealand[42] 1,629,000 11,900 11,900 0.67%
 Norway[43] 2,945,000 3,000 5,800 700 9,500 0.32%
 Philippines[44] 16,000,000 57,000 90,000 147,000 0.92%
Micronesia[45] 1,900,000 57,000 57,000 3.00%
 Poland[46] 34,849,000 160,000 2,440,000 3,000,000 5,600,000 16.07%
 Portuguese Timor[47] 500,000 55,000 55,000 11.00%
 Romania[48] 19,934,000 300,000 64,000 469,000 833,000 4.22%
 Singapore[49] 728,000 50,000 50,000 6.87%
 South Africa[50] 10,160,000 11,900 11,900 0.12%
 Soviet Union[51] 168,500,000 10,700,000 11,400,000 1,000,000 23,100,000 13.71%
 Spain[52] 25,637,000 4,500 4,500 0.02%
 Sweden[53] 6,341,000 200 2,000 2,200 0.03%
 Switzerland[54] 4,210,000 100 100 0.00%
 Thailand[55] 15,023,000 5,600 300 5,900 0.04%
 United Kingdom[56] 47,760,000 382,600 67,800 450,400 0.94%
 United States[57] 131,028,000 416,800 1,700 418,500 0.32%
 Yugoslavia[58] 15,400,000 446,000 514,000 67,000 1,027,000 6.67%
Totals 1,961,913,000 25,193,700 41,830,600 5,754,400 72,778,700 3.71%

In Flanders Fields
By: Lieutenant Colonel John McCrae, MD (1872-1918)
Canadian Army
In Flanders fields the poppies blow
Between the crosses row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.
Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.
CASUALTIES AND DEATHS  suffered by the United States of America in war or deployments:

War or conflict
Total dead
and wounded
American Revolutionary War 1775–1783 8,000 17,000 25,000 25,000 50,000 [a]    
Quasi-War 1798–1800 20 20 42 62 [citation needed]    
Barbary Wars 1801–1815 35 35 65 100 [citation needed]    
Other actions against pirates 1800–1900 10 10 21 31 [citation needed]    
Northwest Indian War 1785–1795 1221+ 458 1679+ 3    
War of 1812 1812–1815 2,260 ~17,000 ~20,000 4,505 ~25,000 [1]    
First Seminole War 1817–1818 30 30    
Black Hawk War 1832 60+    
Second Seminole War 1835–1842 328 ~1,500    
Mexican-American War 1846–1848 1,733 11,550 13,283 4,152 17,435 [2]    
Third Seminole War 1855-1858 26 26    
Civil War: total 1861–1865 212,938 ~625,000 [b]    
Union 140,414 224,097 364,511 281,881 646,392    
Confederate 72,524 ~260,000    
Indian Wars 1865–1898 919 1,025 [2]    
Korean expedition 1871 3 3 9 12 [3]    
Spanish-American War 1898 385 2,061 2,446 1,622 4,068 [2]    
Philippine War 1898–1902 1,020 3,176 4,196 2,930 7,126 [2]    
Boxer Rebellion 1900–1901 37 37 204 [citation needed]    
Mexican Revolution 1914–1919 35+ 70 [citation needed]    
Occupation of Haiti 1915–1934 146 26+ [citation needed]    
World War I 1917–1918 53,402 63,114 116,516 204,002 320,518 3,350 [2][c] Wilson Democrat
Northern Russian Expedition 1918-1920 424 [4]    
China 1918; 1921; 1926-1927; 1930; 1937 5 78 83 [5]    
US occupation of Nicaragua 1927-1933 48 68 116 [6]    
World War II 1941–1945 291,557 113,842 405,399 670,846 1,076,245 30,314 [2] Roosevelt / Truman Democrat
China {Cold War} 1945-1947 13 43 56 [7]    
Berlin Blockade 1948-1949 31 [8]    
Korean War 1950–1953 33,746 ? 36,516 103,284 ? 8,177 [2] Truman Democrat
Russia {Cold War} 1950-1955 32 12 44 [9]    
China {Cold War} 1956 16 16 [10]    
Bay of Pigs Invasion 1961 4 4 [11]    
Vietnam War 1957–1973 47,424 10,785 58,209 153,303 211,454 2,489 [12][2] Kennedy / Johnson Democrat
Invasion of Dominican Republic 1965-1966 13 200 213 [13][14]    
El Salvador Civil War 1980–1992 9 20 35 [citation needed]    
Beirut deployment 1982–1984 256 266 169 [15]    
Persian Gulf escorts 1987–1988 39 0 39 31 [citation needed]    
Invasion of Grenada 1983 18 1 19 119 [15]    
Invasion of Panama 1989 23 40 324 [15]    
Gulf War 1990–1991 148 151 299 467 1 [16] [2]    
Somalia 1992–1993 29 14 43 153 [15]    
Haiti 1994–1995 1 4 3 [15]    
Bosnian War 1995? 1 12 6 [citation needed]    
Afghanistan* 2001–present 310 195 505 1,937 2,442 [17]    
Iraq War 2003–present 3,341 738 4,079 40,229 44,308 3 [7] [18]    


Cops Gone Wild in Williamsburg? Seatbelt law enforcement draws complaint.

Sunday, May 25th, 2008

 May 25, 2008
 LawReader received the following e-mail regarding a citizen complaint about the enforcement of the new mandatory seat belt law.
We have previously published a story about citations being issued in Owenton, Ky. to people sitting in parked cars.

“Ms. Billingsley, you recently sent out an email detailing the upcoming ” mission” of the police to secure funds from a state grant by writing tickets to “lawbreakers”.
This mission is having the opposite effect here in Williamsburg,KY. The Williamsburg City police are breaking the law by issuing tickets without a violation having taken place.
Last night my neighbors called me at 10:00 PM to warn me of the activities of the Williamsburg police. They were pulled over by an officer as they were returning from a drive thru fast food place in Williamsburg. The officer told the front seat passenger
that she was being ticketed for not wearing a seatbelt. The issue is, she was wearing her seatbelt and had been since leaving the restaurant. I have known this person for 12 years, she is employed by the local school system and I personally consider her a role model as a parent and citizen.

If her daughter had not been in the vehicle with her parents, an illegal ticket would have been given to this person. The daughter was a former jail employee and knew the officer personally.
One bad officer does not make for a corrupt department, unfortunately, a different officer of the same department also attempted to write a ticket to another family member of these same folks for the same reason. Once again, someone in the vehicle knew the officer personally and I assume shame at being caught breaking the law persuaded this officer to also not write a ticket.
I have never written a complaint letter before but I am going to sent one to our Mayor detailing the detrimental effect that the activities of the Williamsburg Police Department are having on the perception of law abiding citizens.
                     Thank you for you newsletter and for you time.”
                     Name withheld by LawReader

A court of appeals case that cries out for Supreme Court Review

Sunday, May 25th, 2008


The following unpublished case demonstrates just how conservative some panels of  the current Court of Appeals can be.  We would suggest that this case cries out for review by the Supreme Court.


LawReader case # 24 issued on May 23rd— Subscribers can view at:  COURT OF APPEALS DECISIONS FOR MAY 23, 2008 
oral plea agreement claim warrants evidentiary hearing –no relief for gross misadvice as to parole eligibility Parole eligibility is a collateral consequence, and failure to advise or to even give gross advice concerning collateral consequences are not within the scope of a defendant’s Sixth Amendment rights.
LawReader comment: The foregoing case was not published.  We believe it demonstrates a weakness in the application of 11.42 relief.  This case purports to uphold precedent, by saying that a defendant’s attorney can advise him he will be eligible for parole in 3 years, when in fact his guilty plea will subject him to a sentence that denies parole eligibility for 20 years.  That is a harsh interpretation of the rules and precedent relating to standards for withdrawal of guilty pleas.  The difference of l7 years in jail is hardly by any reasonable standard a “collateral” issue.  We believe the Ky. Supreme Court provides a basis for a contrary interpretation of the “collateral issue” rule in  the following cases:

Myers v. Com., 42 S.W.3d 594 (Ky., 2001)
“Appellant, however, asserts in his RCr 11.42 motion that his attorney advised him that the twenty-five year sentence was illegal and induced him to plead guilty by promising that the sentence would be reduced at a later date. That is the gravamen of his claim of ineffective assistance of counsel.
        If it is determined that Appellant knowingly and voluntarily waived his rights under KRS 532.110(1)(c) in exchange for the Commonwealth’s agreement to amend the murder charge to manslaughter in the second degree, or for some other quid pro quo, such would effectively eliminate his claim of ineffective assistance of counsel. Unfortunately, that determination has never been made. The issue was discussed at neither Appellant’s “Boykin hearing” nor his sentencing hearing; and when raised in his RCr 11.42 motion, an evidentiary hearing on the issue was denied.

        Accordingly, we hold that the maximum aggregate sentence limitation contained in KRS 532.110(1)(c) can be the subject of a knowing and voluntary waiver by a person in whose favor the limitation operates; however, we remand this case to the Jefferson Circuit Court with directions to conduct an evidentiary hearing on that issue pursuant to Appellant’s RCr 11.42 motion and the contents of this opinion.”

In Feburary of 2008 another panel of the Ky. Ct. of Appeals appears to see a basis for review of “gross misadvice” cases:

Gates v. Commonwealth, No. 2007-CA-001358-MR (Ky. App. 2/15/2008) (Ky. App., 2008)  Federal case law from our own circuit holds that “gross misadvice” concerning parole eligibility may constitute ineffective assistance of counsel. See Sparks v. Sowders, 852 F.2d 882 (6th Cir. 1988). But in Sparks, the petitioner alleged that his counsel told him that he faced a possible penalty of life without parole unless he pleaded guilty. No such sentence existed at that time. Furthermore, had the petitioner been convicted by a jury and sentenced to life imprisonment, he would have been eligible for parole after serving eight years. The Sixth Circuit concluded that the petitioner’s allegations were sufficient to show both deficient performance by trial counsel and actual prejudice. Id. at 885.


In Sparks v. Sowders, 852 F.2d 882 (6th Cir. 1988) the 6th. Circuit held:

“This court has yet to decide whether erroneous advice concerning parole eligibility can amount to ineffective assistance of counsel. Brown v. Perini, 718 F.2d 784, 789 n. 4 (6th Cir.1983). However, this issue has been addressed by other circuits which have held or noted that misinformation concerning parole eligibility can be ineffective assistance of counsel. Strader v. Garrison, 611 F.2d 61, 65 (4th Cir.1979) (when petitioner is grossly misinformed about parole eligibility dates by his lawyer, and he relies upon the misinformation, he is deprived of his constitutional right to counsel). See also, Cepulonis v. Ponte, 699 F.2d 573, 577 n. 7 (1st Cir.1983) (noting that misinformation may be more vulnerable to constitutional attack than lack of information); Czere v. Butler, 833 F.2d 59, 63 (5th Cir.1987) (noting without deciding that giving misinformation may satisfy the first prong of the Strickland test); Hill v. Lockhart, 731 F.2d 568, 572 (8th Cir.) (refusing to follow Strader because gross misinformation was not involved in the case), aff’d by equally divided court 764 F.2d 1279 (8th Cir.1984) (en banc), aff’d 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Brown, 718 F.2d at 789 n. 4 (distinguishing Strader on basis that the advice given by defense counsel could not be characterized as gross misadvice).
        We now hold that gross misadvice concerning parole eligibility can amount to ineffective assistance of counsel.

Important new rulings are coming out of Kentucky Appellate courts

Sunday, May 25th, 2008

 If you practice law, you should be reading these decisions on LawReader.  We publish all decisions issued by Ky. Appellate courts within 24 hours of their release, with Keywords, a Snyopsis, and full text.  This important feature is one of the great benefits of a LawReader subscription.

The current Kentucky Supreme Court continues to impress us with their willingness to look at each case on its merits, and to overrule prior case law when they feel a new direction is warranted.   On May 22nd. the Supreme Court overruled no less than four legal doctrines.  The following are the keywords from these four decisions.  LawReader users can read the full LawReader synopsis and a full text of these case by going to KY. SUPREME COURT CASES FOR MAY 2008 .   
LawReader Case #12 - TO BE PUBLISHED:  double jeopardy – blockburger partially overruled –apprendi applied – serious physical injury element in two different offenses does not require double jeopardy protection: …..we overrule our prior case law and hold that the prohibition against double jeopardy is not violated when a defendant is convicted of first-degree assault and first degree rape (involving a serious physical injury to the victim), even if the same serious physical injury to the victim is used to support each conviction….We must conclude that serious physical injury is a substantive element of first-degree rape if the Commonwealth seeks to have a rape offense classified as a Class A felony . So to the extent that Baker, or cases following its rule, hold to the contrary, they are overruled.
LawReader Case #16-  TO BE PUBLISHED: concurrent or consecutive sentencing is court issue not jury issue- lesser included offense/sexual abuse and sodomy: ….the Court of Appeals’ statement in Sherfey” that a reviewing court has the power to review improperly preserved “as applied” constitutional challenges must be overruled as being inconsistent with the plain, unambiguous language of KRS 418 .075….a defendant automatically becomes a violent offender at the time of his or her conviction of an offense specifically enumerated in KRS 439.3401(1) regardless of whether the final judgment of conviction contains any such designation .’ …..we now hold that a trial court has the discretion to decline to follow a jury’s recommendation regarding whether a sentence should be served concurrently or consecutively, regardless of any parole eligibility implications for a defendant
LawReader Case #18– TO BE PUBLISHED:  lessor included offense for misdemeanor instruction when statute of limitations period has tolled: We now hold that a defendant is entitled to the lesser-included offense instruction and, that by requesting jury consideration of an “expired” misdemeanor, the defendant waives his statute of limitations defense to any resulting conviction…..Our case law has long recognized that, generally, a statute of limitations is a defense, but not a jurisdictional bar, to an untimely complaint. We agree with the majority of state courts and with the United States Supreme Court that an instruction on a time-barred offense tends to deceive the jury and thus is not permitted unless the defendant waives the limitations bar so that a verdict under the instruction has real substance.
LawReader Case #21– TO BE PUBLISHED   sentencing-concurrent vs. consecutive-probation-PAROLE VIOLATION sentencing-Devore case overruled- Leibson dissent adopted: …..we are of the opinion the majority’s position in Devore leads to an unworkable interpretation of KRS 533.060(2). Rather, we now hold that the logic espoused by Justice Leibson in his dissent provides an inherently more practical understanding of the statute. “A reasonable interpretation of the phrase `with any other sentence,’ (KRS 533 .060(2)) is that `any other sentence’ means only the unserved portion of the sentence for the felony for which probation or parole should be revoked.” …it becomes quite clear in the context of KRS 533.060(2), that the language, “the period of confinement for that felony shall not run concurrently with any other sentence,” should be construed as meaning that subsequent felony offense(s) committed while on probation or parole may not be run concurrently with the sentence for which the individual is on probation or parole.In the instance of multiple-count subsequent felony offenses committed while on probation or parole, however, these subsequent offenses may be run either consecutively or concurrently, at the court’s discretion we hold that to the extent Devore requires all subsequent sentences for crimes committed while on probation or parole to be run consecutively to each other, it is overruled …..when an individual on parole is facing multiple and contemporaneous felony convictions for subsequent crimes (committed while on parole), the jury may still recommend whether to run these subsequent convictions consecutively or concurrently with each other.  
The Court of Appeals  – on May 23, 2008 adopted the “Rule of Necessaries” regarding funeral expenses.  See Case #8    at COURT OF APPEALS DECISIONS FOR MAY 23, 2008 
TO BE PUBLISHED rule of necessaries adopted in kentucky– father liable for funeral bills of child under child support theory: It would be counterintuitive for this Court to hold a father who was never married to the mother liable for the reasonable expenses as related to his child’s funeral but not to hold a father who was married to the mother liable for the same. This is exactly what Rodger asks us to do here…..We view this action as a proceeding to modify or interpret the support order, in light of the fact that it did not explicitly provide for funeral expenses but Carolyn is seeking them under that order. She specifically contends that Kentucky Revised Statute (KRS) 406.011 and the doctrine of necessaries require Rodger to pay for a portion of Justin’s funeral expenses. We agree…Appellate courts in several other states, however, have applied the doctrine of necessaries to obligate a parent to pay for the expenses incurred by his or her child, including medical and funeral expenses.

U.S. Elects most state judges – the rest of the world does otherwise…

Sunday, May 25th, 2008

 American Exception – Rendering Justice, With One Eye on Re-election

By ADAM LIPTAK  - New York Times – May 25, 2008
Last month, Wisconsin voters did something that is routine in the United States but virtually unknown in the rest of the world: They elected a judge.

 American Exception Judges as Politicians

This series of articles examines commonplace aspects of the American justice system that are actually unique in the world.

The vote came after a bitter $5 million campaign in which a small-town trial judge with thin credentials ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist. The challenger unseated the justice with 51 percent of the vote, and will join the court in August.
The election was unusually hard-fought, with caustic advertisements on both sides, many from independent groups.
Contrast that distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a district court, in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.
“It gives you nightmares for years afterwards,” Judge Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive. “You come out of this completely shattered,” Judge Baissus said.
The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.
“If you want judges to be responsive to public opinion, then having elected judges is the way to do that,” said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.
Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.
In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.
Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.
“To the rest of the world,” Hans A. Linde, a justice of the Oregon Supreme Court, since retired, said at a 1988 symposium on judicial selection, “American adherence to judicial elections is as incomprehensible as our rejection of the metric system.”
Sandra Day O’Connor, the former Supreme Court justice, has condemned the practice of electing judges.
“No other nation in the world does that,” she said at a conference on judicial independence at Fordham Law School in April, “because they realize you’re not going to get fair and impartial judges that way.”
The new justice on the Wisconsin Supreme Court is Michael J. Gableman, who has been the only judge on the Burnett County Circuit Court in Siren, Wis., a job he got in 2002 when he was appointed to fill a vacancy by Gov. Scott McCallum, a Republican.
The governor, who received two $1,250 campaign contributions from Mr. Gableman, chose him over the two candidates proposed by his advisory council on judicial selection. Judge Gableman, a graduate of Hamline University School of Law in St. Paul, went on to be elected to the circuit court position in 2003.
The much more rigorous French model, in which aspiring judges are subjected to a battery of tests and years at a special school, has its benefits, said Mitchel Lasser, a law professor at Cornell and the author of “Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy.”

 “You have people who actually know what the hell they’re doing,” Professor Lasser said. “They’ve spent years in school taking practical and theoretical courses on how to be a judge. These are professionals.”

 “The rest of the world,” he added, “is stunned and amazed at what we do, and vaguely aghast. They think the idea that judges with absolutely no judge-specific educational training are running political campaigns is both insane and characteristically American.”
But some American law professors and political scientists say their counterparts abroad should not be so quick to dismiss judicial elections.
“I’m not uncritical of the American system, and we obviously have excesses in terms of politicization and the campaign finance system,” said Prof. David M. O’Brien, a specialist in judicial politics at the University of Virginia and an editor of “Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World.”
“But these other systems are also problematic,” Professor O’Brien continued. “There’s greater transparency in the American system.” The selection of appointed judges, he said, can be influenced by political considerations and cronyism that are hidden from public view.
A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality.
“A simple explanation for our results,” wrote the paper’s authors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants — adequate rather than great opinions, in greater quantity.”
Herbert M. Kritzer, who was until recently a professor of law and political science at the University of Wisconsin, said judicial elections had deep roots in the state and the nation.
“It’s a remnant of the populist Jacksonian image of public office,” he said. “We’re crazy about elections. The number of different offices we elect is enormous.”
There is reason to think, though, that the idea of popular control of the government associated with President Andrew Jackson is an illusion when it comes to judges. Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements.
“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota. “When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.”
Still, judges often alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that “all judges, even the most punitive, increase their sentences as re-election nears,” resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.
In common law countries, judges are generally appointed by executive branch officials, though lately judicial commissions made up of lawyers and lay people are taking a larger role in the initial selection of candidates. Scotland adopted that method in 2002, and England and Wales in 2006.
Alan Paterson, a Scottish law professor who serves on the Judicial Appointments Board for Scotland, said his country’s system was transparent and worked well, though he acknowledged that the idea behind judicial elections was attractive.
“Part of me likes it,” he said. “It follows from the separation of powers. But in practical terms, it’s very difficult. They have to raise a lot of money.”
“The theory is a nice theory,” he said. “The practice of it is unworkable. We’re not going to do it.”
In some nations, of course, the judiciary is neither independent nor accountable to the public.
“Take a country like Vietnam,” Professor O’Brien said. “Those poor judges are controlled by party officials even at the trial level. That’s even worse than we have in Pennsylvania, Ohio and Texas, where the cost of judicial campaigns has just escalated over the last couple of decades.”

 Judge Gableman did not respond to phone messages seeking comment. In answer to a question about his qualifications in an online forum on The Milwaukee Journal Sentinel’s Web site, he acknowledged that he had no appellate court experience but said he had argued a case, concerning zoning, before the state Supreme Court.
In the recent election, Judge Gableman’s campaign ran a television advertisement juxtaposing the images of his opponent, Justice Louis B. Butler Jr., in judicial robes, with a photograph of Ruben Lee Mitchell, who had raped an 11-year-old girl. Both the judge and the rapist are black.
“Butler found a loophole,” the advertisement said. “Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”
Justice Butler had represented Mr. Mitchell as a lawyer 20 years before and had persuaded two appeals courts that his rape trial had been flawed. But the state Supreme Court ruled that the error was harmless, and it did not release the defendant, as the advertisement implied. Instead, Mr. Mitchell served out his full term and only then went on to commit another crime.
In an interview, Justice Butler — a graduate of the University of Wisconsin law school who served for 12 years as a judge in Milwaukee courts — said the past few months had tested his commitment to elections.
“My position historically has been that there is something to be said for the public to be selecting people who are going to be making decisions about their futures,” Justice Butler said.
“But people ought to be looking at judges’ ability to analyze and interpret the law, their legal training, their experience level and, most importantly, their impartiality,” he continued. “They should not be making decisions based on ads filled with lies, deception, falsehood and race-baiting. The system is broken, and that robs the public of their right to be informed.”
Judge Baissus, the French judge, said his nation had once considered electing its judiciary.
“It’s an argument that was largely debated after the French revolution,” he said. “It was thought not to be a good idea. People seeking re-election would not be independent. They are indeed close to the electorate, but sometimes uncomfortably so.”

How Judges are Chosen in Other Countries
Judicial Selection in the States
Judicial Selection in Other Countries (pdf)